Tribunal Criminal Tribunal for the Former Yugoslavia

Page 55

1 Tuesday, 29 August 2006

2 [Appeals Proceedings]

3 [Open session]

4 [The appellant entered court]

5 --- Upon commencing at 9.01 a.m.

6 JUDGE POCAR: Good morning, everybody.

7 Madam Registrar, would you please call the case on the Appeals

8 Chamber's agenda.

9 THE REGISTRAR: Good morning, Your Honour. This is case number

10 IT-98-29-A, the Prosecutor versus Stanislav Galic.

11 JUDGE POCAR: Thank you, Madam Registrar.

12 I would like to make sure that the interpreters are here and they

13 can hear me.

14 THE INTERPRETER: Yes, we can hear you, Your Honour.

15 JUDGE POCAR: Thank you.

16 Mr. Galic is in the courtroom. Can you hear me?

17 THE APPELLANT: [Interpretation] Yes, Your Honour, I can hear you

18 well and I receive interpretation into my language. Thank you.

19 JUDGE POCAR: Thank you.

20 Now can I ask for the appearances of the parties. First the

21 Prosecution.

22 MS. BRADY: Good morning, Your Honours. Helen Brady appearing on

23 behalf of the Prosecution. With me today is our case manager, Ms. Kim

24 Fischer, then travelling down the bar table, Ms. Michelle Jarvis,

25 Ms. Shelagh McCall, Ms. Anna Kotzeva, and Mr. Mark Ierace, who was also

Page 56

1 the Senior Trial Attorney in the trial and is joining us for the appeal.

2 Thank you.

3 JUDGE POCAR: I thank you.

4 For the Defence.

5 MS. PILIPOVIC: [Interpretation] Good morning, Your Honours. The

6 Defence of General Stanislav Galic is today represented by Mara Pilipovic

7 and my co-counsel, Mr. Piletta-Zanin, as well as our case manager,

8 Aleksandar Momirov. Thank you.

9 JUDGE POCAR: I thank you.

10 I would like now to explain how we are going to proceed during

11 this hearing. As the registrar announced, today we are hearing the case

12 of the Prosecutor against Stanislav Galic. The charges against Mr. Galic

13 stem from military encirclement of the city of Sarajevo from 1992 to 1994

14 by Bosnian Serb forces.

15 Mr. Galic and the Prosecution appeal from the judgement rendered

16 on 5 December 2003 by Trial Chamber I, composed of Judge Orie, presiding,

17 and Judges El Mahdi and Nieto-Navia. The Trial Chamber by a majority

18 found Mr. Galic guilty of acts of violence, the primary purpose of which

19 was to spread terror among the civilian population, a violation of the

20 laws or customs of war, as set forth in Article 51 of Additional

21 Protocol I to the Geneva Conventions of 1949; murder as a crime against

22 humanity through sniping; inhumane acts other than murder as crimes

23 against humanity through sniping; murder as a crime against humanity

24 through shelling; and inhumane acts other than murder as crimes against

25 humanity through shelling.

Page 57

1 As a consequence of the finding of guilt it entered on Count 1,

2 the Trial Chamber dismissed Counts 4 and 7 concerning attacks on civilians

3 as set forth in Article 51 of Additional Protocol I and Article 13 of

4 Additional Protocol II to the Geneva Conventions of 1949 as a violations

5 of the laws or customs of war. Mr. Galic was sentenced to a single

6 sentence of 20 years' imprisonment.

7 I will now briefly summarise the grounds of appeal of Mr. Galic.

8 Mr. Galic now brings 19 grounds of appeal. In grounds 1 through 3,

9 Mr. Galic alleges infringement of his right to fair trial, including his

10 right to testify at trial; an alleged error in failing to disqualify Judge

11 Orie; and an alleged error in failing to conduct a site visit to Sarajevo.

12 In grounds 4, 11 and 13, Mr. Galic alleges errors in use of evidence. In

13 ground 4, Mr. Galic alleges that the Prosecution failed to disclose

14 exculpatory evidence in a timely manner. In grounds 11 and 13, Mr. Galic

15 alleges the Trial Chamber erred in its approach to the evaluation of

16 evidence.

17 In grounds 5, 7 and 16, Mr. Galic alleges errors in the Trial

18 Chamber's finding in relation to his conviction for the crime of terror.

19 Grounds 6 through 18 allege errors in relation to Mr. Galic's convictions

20 for murder and inhumane acts. In part, he alleges errors concerning the

21 Trial Chamber's legal findings related to the crime of attacks against

22 civilians, cumulative convictions and a determination of his individual

23 criminal responsibility.

24 Mr. Galic also alleges errors in the Trial Chamber's consideration

25 of collateral damage in the definition of terms in the trial judgement and

Page 58

1 the Trial Chamber's consideration of the alleged campaign of shelling and

2 sniping against the civilian population of Sarajevo.

3 Ground 19 concerns his appeal against the sentence.

4 The Prosecution brings one ground of appeal against the sentence.

5 During the hearing, the Appellant's counsel may argue the grounds of

6 appeal in the order they consider most suitable for their presentation.

7 However, I wish to note and remind the parties that by the Scheduling

8 Order issued by the Appeals Chamber of -- on 14 August 2006, the Appeals

9 Chamber has invited the parties to develop further their submissions on

10 certain issues. The Appeals Chamber has fully considered the submission

11 of the parties in writing and would like to have oral arguments on the

12 issues as mentioned in the Scheduling Order of 14 August 2006.

13 I would now like to recall the criteria applicable to errors of

14 fact and law alleged on appeal. The appeal is not a trial de novo and the

15 appellants must not merely repeat their case from the trial level.

16 Rather, in accordance with Article 25 of the Statute of the Tribunal, the

17 appellants must limit their arguments to alleged errors of law which

18 invalidate the decision or alleged error of fact occasioning a miscarriage

19 of justice. Additionally, it should be recalled that the appellants have

20 an obligation to provide precise references to materials supporting their

21 arguments on appeal.

22 This hearing will proceed according to the Scheduling Order issued

23 on 14 August 2006. Counsel for Mr. Galic will present submissions this

24 morning until 10.55. Following a 30 minutes pause, counsel for the

25 Prosecution will then begin to present a response from 11.25 to 11 -- to

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1 12.25. After the break, between 12.25 and 14.15, counsel for the

2 Prosecution will have time to continue their response from 14.15 to 15.

3 And then we will go accordingly following the Scheduling Order. I will

4 not repeat all the times now. I will remind the parties of the time when

5 we come to the -- to their presentations. Bearing in mind that the

6 hearing of the whole appeal, including the appeal of the Prosecution,

7 shall conclude at 5.20 in the afternoon.

8 It will be most helpful to the Appeals Chamber if the parties

9 could present their submissions in a precise and clear manner. The Judges

10 as usual may interrupt the parties at any time to ask questions or they

11 may ask questions following each party's submissions as they will seem --

12 would deem it appropriate.

13 Having said this about the manner in which we'll proceed today, I

14 would now like to invite counsel for Mr. Galic to present their arguments

15 in support of his appeal.

16 You have the floor.

17 MS. PILIPOVIC: [Interpretation] Thank you, Your Honours.

18 Your Honours, in accordance with the Scheduling Order for this

19 appeals hearing, the Defence will do its best to, within the allotted

20 time, first answer the questions that were put to the Defence, starting

21 from the judgement and the sentence, where sniping incidents and shelling

22 incidents were analysed separately, the Defence will first answer

23 questions 1, 2 and 4 pertaining to the shelling, following which I will

24 answer the second question and provide the analysis of response for

25 questions 3 and 5.

Page 60

1 Thus, the Defence will start with question number 1 as listed in

2 the Scheduling Order for the appeals hearing. This question will be

3 analysed by my learned friend, Mr. Piletta-Zanin. And then under item 2,

4 shelling incidents, will be covered, and then I will be speaking of other

5 questions from the angle of sniping incidents.

6 Before my learned friend, Mr. Piletta-Zanin starts his

7 presentation and starts answering the first question, the Defence would

8 like to point out that we stand by our position as stated during the trial

9 and as stated in our appeals brief and in response to the OTP appeals

10 brief.

11 In addition to that, we would like to state that General Galic and

12 all those subordinated to him not a single time undertook any military

13 operation that would be aimed at civilians or civilian facilities.

14 I would like to yield the floor to my friend, Piletta-Zanin.

15 Thank you.

16 MR. PILETTA-ZANIN: [Interpretation] Good morning, Your Honours.

17 I hesitated for a long time before coming before this Chamber to

18 present the position of General Galic and his Defence team. I had some

19 hesitations because in a period where the modest lawyers, Defence lawyers,

20 are being overwhelmed by things such as transfers of detainees who are

21 transferred to other countries to be questioned, when we see that the

22 evidence that is submitted is not considered, then you see that that sort

23 of thing happens, then you need to stand up and to say that this is not

24 fair. If today, Your Honours, I decided to come here and make these

25 submissions, I have not come here to speak against anyone, against the

Page 61

1 Prosecution team, against the Judges. I'm here to speak for something and

2 what I want to speak for is the truth.

3 As an introduction, let me say two things that I would like to

4 remind you of, and I'm going to give a number of references to help you.

5 The first point is the necessary disqualification of Judge Orie. At the

6 time we submitted a number of arguments but the Appeals Chamber did not

7 choose to go along our submissions. We would like to refer here to a

8 number of decisions. I've given the list of texts to the interpreters.

9 These decisions are the following, for the European law: Piersack against

10 Belgium, 1st of October, 1982, pages 14 to 15; Cubber versus Belgium,

11 26 of June 1984, et cetera; Hauschildt against Denmark, 24th of May, 1989;

12 as well as Sahiner against Turkey; Sranek versus Austria; Padovani versus

13 Italy; Samari versus France; and Fincklay versus the UK.

14 I'm also going to quote a number of US cases about

15 disqualification: Davis versus Board of Schools for Mobile County; as

16 well as Camero against the United States; Berger against the United

17 States; as well as the Collins versus Dixie Transport case.

18 The reason why I give you these authorities is the following. We

19 know that in this case the -- General Galic was prosecuted for the

20 offences you summed up at the beginning.

21 MS. BRADY: Excuse me, I hate to interrupt my friend when he's in

22 the middle of submissions. But these cases, are they in a book of

23 authorities or have they been provided in a supplemental book of

24 authorities? Because the Prosecution doesn't have copies of this. Thank

25 you.

Page 62

1 MR. PILETTA-ZANIN: [Interpretation] I don't get any translation

2 anymore but that's not a big issue.

3 I will give you a copy of this document later on. I'll give a

4 copy to the Prosecution.

5 May I proceed? May I proceed?

6 JUDGE POCAR: [Microphone not activated].

7 THE INTERPRETER: Microphone, please.

8 JUDGE POCAR: [Interpretation] Can you please give that document to

9 the Prosecution now?

10 MR. PILETTA-ZANIN: [Interpretation] [No interpretation]. Your

11 Honour, we are pressed for time, so I suppose I can proceed.

12 I wanted to say the following. General Galic was prosecuted and

13 convicted for a number of offences but we have to remember one thing.

14 Whilst he was being tried, amongst the three Judges who were sitting at

15 trial, you had a Presiding Judge who had already taken a decision with

16 regard to prima facie evidence when confirming the indictment against

17 General Mladic. When he confirmed the indictment, the Presiding Judge,

18 Mr. Orie, clearly, publicly stated as a judge, that General Galic was also

19 likely to be prosecuted as an accomplice to General Mladic as part of a

20 joint criminal enterprise of genocide. Therefore, we have a situation

21 where a Presiding Judge is sitting at trial for crimes such as murders of

22 a lesser level than that of genocide, genocide that is being presented as

23 the most -- as the crime of crimes. We have a Presiding Judge who is

24 sitting at trial for someone who is prosecuted for murder but has

25 confirmed an indictment with regard to genocide.

Page 63

1 How can we admit, how can we accept objectively or subjectively

2 that an accused, whoever he is, Galic, or anyone else, can reasonably

3 prepare his defence when he's being faced with a Presiding Judge who has

4 already considered that he might be, there is prima facie evidence that he

5 might be guilty of genocide?

6 I can tell you that all the authorities that could have ruled on

7 this, for example, the International Court for Human Rights in Strasbourg,

8 all of these institutions would state that the said judge would have to be

9 disqualified. That's what I wanted to say as a way of introduction, and

10 that was why principles have to be complied with.

11 This being said, let me now move on to another aspect of this

12 trial. The qualification of the trial, and I'm talking about the crime of

13 terror, that is a new word, a new concept, because the Tribunal has

14 invented a new word at least in French, the crime of terrorisation. And

15 this is the second point I would like to stress, the second violation

16 against my client. We have an accused who was prosecuted for a crime that

17 had been previously prosecuted according to the Rules with an indictment

18 that was confirmed by a Judge of a Tribunal according to Rule 50, and this

19 crime that was pleaded in the indictment is accepted by the Tribunal.

20 Mr. Ierace is here so he's not going to contradict me.

21 This trial means that the actual infliction of terror has to be

22 proven, terror that was inflicted on the population. The trial took place

23 under those circumstances with the idea confirmed that the Tribunal, that

24 the Prosecution has to adduce evidence of the actual infliction, and this

25 evidence was never adduced.

Page 64

1 At the end of the Prosecution case, the Defence case started,

2 quite logically, and the Defence focused its case on other elements than

3 the so-called crime of terror. Why? Why? Because according to us, the

4 evidence had not been adduced as to the crime of terror, so there was no

5 need for us to stress or to focus on that matter. And at the end of the

6 trial, once the Defence and the Prosecution had finished their job, what

7 we found was that the Judges were not even unanimous in their decision, a

8 very weak majority of two Judges. When you consider what is at stake

9 here, these two Judges requalified the offence, after 18 months, without

10 ever having asked a single question to anyone. What they said, these

11 Judges, was that what was needed was not to prove that terror had been

12 inflicted. What needed to be proven was whether there were acts committed

13 that were likely to provoke terror. Therefore, they founded themselves on

14 the definition of Article 51. Therefore, they prevented the Defence to

15 focus on that issue, and that's clear, very clear. Unfortunately for

16 General Galic, this is a violation of his basic rights.

17 Let me now turn to the concept of civilian population, but I'd

18 like to check how much time I have left. And I keep in mind the questions

19 you raised under point 1 and 2 -- or point 1 of the Scheduling Order you

20 quoted earlier on, the Scheduling Order of the 14th of August, 2006.

21 You asked a pivotal question, I'll come back to that later, but as

22 for these attacks that are considered by the Defence as being admitted

23 wrongly by the Trial Chamber as being unlawful, that is to say including

24 targeting of a civilian population, a deliberate targeting of a civilian

25 population, we are going to proceed as follows. I'm going to examine the

Page 65

1 five cases of scheduled shelling that were submitted to the Trial Chamber,

2 and I'm also going to consider a number of findings of the Trial Chamber

3 point by point, in order to verify why an attack that has been considered

4 as lawful cannot be considered as such.

5 Is there a problem with the interpretation? Because I'm not

6 listening or is everything going smoothly? Well, then I'll proceed.

7 Mr. President, we perfectly know what civilian objects are, and

8 even if we go by Additional Protocol I, we can use the negative definition

9 usually given by the text, that is to say, that civilian assets are those

10 that are not military objectives.

11 Talking about Additional Protocol I and to assist the Chamber, I

12 would like to say that contrary to what has always been stated, it seems

13 that the agreement of the 22nd of May, 1992, might never have come into

14 force because the ICRC confirmed to me that when they never received that

15 agreement, they've looked it up in their archives and they've never found

16 these four letters of confirmations that would have been in -- necessary

17 but I see that I'm being interrupted again, so I'll give the floor to the

18 Prosecution.

19 MS. BRADY: I'm so sorry to interrupt again but my friend is now

20 going into evidence that is not in the record. In fact, this was

21 something that was dealt with in, I believe it was the second additional

22 evidence motion which was dismissed, and we would ask that he not give

23 evidence about this matter from the bar table.

24 MR. PILETTA-ZANIN: [Interpretation] Mr. President, this is just a

25 mere detail. You know that the Trial Chamber made their decision based on

Page 66

1 letters that they went to look for in -- at the library of the Tribunal so

2 you can do exactly the same. You can go to the library of the Tribunal

3 and find these letters, because I myself gave that letter very generously

4 to the library here for this document to be used by anyone. This document

5 is to be found at the library.

6 May I proceed because we are wasting time here. Thank you very

7 much. I'm lost here. I hope that I will be granted additional time

8 because of all these interruptions.

9 What I wanted to say is if you want to state that Additional

10 Protocol I was applicable, the first thing is that when it comes to

11 unlawful attacks you first have to define civilian object as opposed to

12 military objects. If you do not conduct that exercise, and that was

13 absolutely essential, that was a task that had to be fulfilled by the

14 Trial Chamber, then you cannot come to any conclusion. You cannot give

15 any answer to the question you asked under point 2 of your Scheduling

16 Order, that is to say, whether attacks on apparently legitimate objectives

17 can be such that they can imply terror through the application of the

18 principle of proportionality that allegedly was not applied in that case.

19 But I'll come to that later. If that exercise is not being conducted,

20 then nothing can be ruled.

21 I'm going to quote a number of points here by the Trial Chamber or

22 a number of witnesses, Francis Roy Thomas, 30th of May, 2002, and I

23 quote: "[Previous translation continues] ... headquarters or was close to

24 the confrontation line, most of Sarajevo, the Sarajevo that I knew would

25 fall under the category of residential area."

Page 67

1 [Interpretation] Very well. But then we have to know where their

2 headquarters are, and this is where the problem arose in practical terms.

3 In order to assist the Chamber, I would like to give the following

4 references as far as transcript are concerned. 4733, 6149, 6222, and

5 especially but always by way of an example, 8668, with the testimony of

6 Mole, whom I'm going to quote. "[Previous translation continues] ... sir,

7 that the shelling was indiscriminate. Could you tell us precisely where

8 the HQs of the Brigades, HQs of the battalions, and the HQs of the

9 companies?

10 "Answer: On which side, sir?

11 "Question: In Sarajevo.

12 "Answer: No, sir. I can't."

13 [Interpretation] So, there is it is. This is what the witness

14 stated. He was a high-ranking officer of UNMO and he represented the

15 general opinion.

16 These people did not know where the barracks were, barracks of the

17 main military sites, or even posts such as command posts, so how on earth

18 do you know if there is a shelling allegedly taking place in town, how can

19 they exclude the fact that it might not be a legitimate and lawful

20 shelling? It fell on a neighbourhood, it was obviously civilian for

21 them. But if you look at the facts, they did not know where the

22 legitimate objectives were, and even the general in charge of the

23 operation didn't know. You see Abdel-Razek, 15th of July, 2000,

24 transcript 11616 and following. He confesses that he did not -- it was

25 not aware of such locations. Fraser, 11210, 11220 and 223.

Page 68

1 Now, five shelling incidents, scheduled incidents, they mainly

2 concern three areas, three geographical areas out of ten Sarajevo

3 neighbourhoods, and they cover only 15 days in all. For the first two

4 scheduled shelling incidents, January 1994, 22nd of January, 1994, and

5 5th of February, 1994. With regard to incident 3, 4 and 5, and 42 days,

6 as I said earlier, for the first two scheduled shelling incidents, 1st of

7 June, 1993, and 12th of July, 1993. These are incidents 1 and 2. Out of

8 an overall figure of 2 -- 720 days, two years, in other words, by way of

9 example we only have a period of less than two months. This is very

10 decisive. All the more so because there is not one single incident of

11 this whole campaign, alleged campaign, from the time of -- when General

12 Galic takes function in September 1992 to September 1994. So there you

13 have only three shelling incidents out of 15 days. And this is at a time

14 when the military situation was very tense, when the Serbs were asking for

15 peace agreements, when the parties were resolutely against it, some wanted

16 NATO to intervene, military, by an air -- by air strikes as history has

17 shown us.

18 In the three scheduled shelling incidents on Dobrinja, on the

19 south area of the town, two are obviously cases that cannot be regarded as

20 attacks on civilians. The first one, the one that was erroneously called

21 the --

22 THE INTERPRETER: The interpreter didn't understand.

23 MR. PILETTA-ZANIN: [Interpretation] This happened --

24 THE INTERPRETER: Could the counsel please repeat? The

25 interpreters did not understand the first part.

Page 69

1 MR. PILETTA-ZANIN: [Interpretation] [No interpretation]. Well, if

2 the origin of the shelling can be proved, they are going to try and focus

3 on the entry or the exit of the tunnel. In this respect, it appeared

4 recently, and the Defence will endeavour to adduce the evidence as quickly

5 as it can, it appeared recently that letters coming from the Supreme

6 Command of Sarajevo at the time, from the Presidency, establish that the

7 Muslim forces had created a fake entrance to that tunnel, Dobrinja-Butmir,

8 in the middle of an area with a civilian population, some 1250 metres from

9 the real entrance, which is exactly where the alleged incident of the

10 queue for the water took place.

11 I wanted to attract your attention to this because this is not the

12 system of the human shield where civilians are put in order to hide the

13 objectives. This is an other system which will be proved through letters

14 that we are going to adduce where fake and decoys are used in order to

15 attract shooting or shelling on the civilian population forecasting the

16 consequences.

17 In this respect, and going back to the issue of Dobrinja, I wanted

18 to quote a passage to be found in a report [Previous translation

19 continues] ... [In English] ... to Congress on the conduct of the Persian

20 Gulf War [Interpretation] quoted in Bouvier Sassoli, page 1026. This is

21 such a well known piece of work that I don't need to give the references.

22 I quote: [Previous translation continues] ... [In English] "...

23 lateral civilian casualties. A substantial responsibility for protection

24 of the civilian population rests with the party controlling the civilian

25 population."

Page 70

1 [Interpretation] Page 1026 and further, equally interesting:

2 [Previous translation continues] ... [In English] "... must exercise

3 reasonable precautions to separate the civilian population and civilian

4 objects from military objectives and avoid placing military objectives in

5 the midst of civilian population."

6 [Interpretation] I remind you that in the said case it was the

7 shelling of a bunker where civilians had sought shelter, and this report I

8 quote never concluded that there was any criminal responsibility of any

9 military leaders in this shelling incident that caused several casualties

10 among civilian population, and it is a very well known case.

11 And this is precisely, precisely what is happening in the two

12 shelling incidents in Dobrinja which I'm now quoting, the one of June and

13 the one of July 1993. Indeed. How can you admit supposing that the

14 source of file was Serbian, how can you admit that it would be acceptable

15 that in time of war, an authority that is supposed to protect its own

16 civilian population would authorise civilians to come and organise a

17 football game on basically the front line? This is a distance counted in

18 metres, not in kilometres, and there was the front line, next door to it,

19 so this is totally inconsistent, contradictory to organise such activities

20 in wartime, supposing that this was targeting civilians.

21 This is also true for the famous water line because, there again,

22 where are we? We are on an essential objective. So this is why such

23 incidents cannot be qualified as attacks on civilians.

24 Third shelling incident on Dobrinja, same reasoning. We are

25 facing shelling incidents with an objective which is very close to the

Page 71

1 confrontation line. What I said earlier on holds true here as well.

2 Sorry, let's move straight away to Alipasino Polje, same

3 observation, same comments here as to this location. We know that there

4 were two things. There was a unit with the mechanised and armoured

5 material and assets. This is a well known fact, as the trial record

6 shows. And there was also a military police units apparently that were

7 based there.

8 Now, back to Markale. This is the fifth shelling incident. Fifth

9 scheduled shelling incident. But later on, I hasten to say, I will go

10 back to all the other interesting shelling incidents in the Galic case.

11 As far as Sarajevo is concerned, two preliminary remarks. First,

12 the evidence of the number of cases, and also the issues of fragments or

13 pieces, shards, shrapnels.

14 Is it too fast for the interpreters? Is that okay? If it's too

15 fast, I'll slow down.

16 THE INTERPRETER: Slow down a little bit, please, for the

17 interpreters.

18 MR. PILETTA-ZANIN: [Interpretation] There seems to be no protest,

19 so I'll carry on.

20 THE INTERPRETER: Interpreters would be thankful if the counsel

21 would --

22 THE FRENCH INTERPRETER: We are requesting if the speaker could --

23 MR. PILETTA-ZANIN: [Interpretation] [Previous translation

24 continues] ... the same position as you are, Mr. President. For once, we

25 are not listening to the interpreters.

Page 72

1 I'll carry on. So let me come back to the Markale issue.

2 There is first the proof by numbers as follows. How many proved

3 shelling or shells were directed at Markale, of which it can be proved

4 with certainty that there would have been established and acknowledged by

5 specialist, by experts, as being shellings directed at the market and

6 whose source of -- would have been proved? Look in the press, look in the

7 trial record. You will find basically only one such case, and this is

8 Markale. This is one single shell, whilst in the trial record you will

9 find solid evidence showing that with 120-millimetre shells, I'm thinking

10 of Witness AD, usually Serbs would fire twice and usually with twin tubes.

11 So normally the two shells should have fallen at the same time on Markale,

12 whilst there was only one.

13 Secondly, fragments, and this is the most sensitive point in this

14 whole issue, we know, and this is Exhibit D60, D61. This is a copy of

15 documents disclosed by the Prosecution. We know that there were some 70

16 or 80 fragments or shrapnels of such shells that were all collected on

17 site and very quickly, after the explosion, as is said in the trial

18 record. These shrapnels exist because the Prosecution could touch them,

19 could photograph them, could turn them into evidence, and when we asked

20 for such documents, for material evidence to be produced, for the

21 shrapnels to be produced, it's a miracle, wonder of it all, they had

22 disappeared. This is a major trial on very serious crimes, and we wanted

23 to check whether there was one shell, or two, or several, something we'll

24 never know. Suddenly, all of a sudden, all these elements disappeared.

25 And how do they disappear? You don't know. I don't know. Nobody will

Page 73

1 ever know. All that is said is that strangely enough, surprisingly

2 enough, they are very sorry but they've lost them, so these are the most

3 material pieces of evidence ever lost. Oh, no, no. They found the tail

4 fin stabilising it. But when you do forensic examination on this, it

5 cannot be contradictory to anything else because we have only one piece.

6 To have a contradiction you need at least two pieces to make a

7 comparison, and only the tail fin did not get lost. This is surprising.

8 So whom is it serving? Is it serving justice, I wonder? And does justice

9 serve the law if starting from evidence that is known to have existed they

10 decide not to produce the evidence at court, in order for the Defence to

11 be prevented from exercising its rights. This is the question

12 respectively put to you by the Defence. Of course, we don't believe the

13 story. The Defence do not believe that these documents, this evidence,

14 would have gone missing, and the Defence submits that Markale could never

15 be considered as evidence in the framework of a campaign of terror.

16 I'm going to prove it. First, generally. There are many experts,

17 as you are experts in law, as the Prosecution team is made of experts in

18 law, but there are forensic experts but they have -- we have experts who

19 were never able to agree. While they are very competent and reliable to

20 know where the shell came from. This is quite peculiar. That a Trial

21 Chamber could forensically pretend that and claim that they know more than

22 experts whom themselves say that they don't know about it.

23 Secondly, there are technical elements to it put forward by the

24 Chamber, relying on just one thing, the angle of descent of the shell.

25 Starting from that only, General Galic is going to be found guilty. I

Page 74

1 claim that this is a little thin, and I also claim that this is totally

2 insufficient, and I'd like to prove this to you. Also, to answer one of

3 the questions put by your Chamber.

4 Firstly, the angle of descent of the shell. In order to see the

5 flight path and the source of fire or the range of fire, and this is going

6 to be considered applying two things: First, the Sandia Laboratory

7 formula with regard to the theoretical penetration of the missile in the

8 ground, and of course, secondly, the nature of the ground. These two

9 predicates are essential to the reasoning.

10 But in practical, these premises are wrong for the following

11 ground. Firstly, the Trial Chamber totally neglected and failed to

12 consider in its reasoning the possibility that another factor may have

13 come into play. The roof or one of the roofs. If I say so, it is because

14 there is D64, transcript 5416, in the trial record, there is a video

15 recording where you hear at the very time of the incident somebody who

16 says, and I quote by memory, "Go and look on the roof," whether there

17 is -- there is not some shrapnels of the shell. Go and look on the roof.

18 So why, at the time of the incident, that happened on the ground,

19 would somebody have thought of going on -- to have a look on the roof to

20 see what happened? This is a piece of evidence in the trial record. And

21 I say, is it possible for a shell, when it falls, in an urban environment

22 sort of hits a roof whilst falling? And you don't need to be an expert to

23 understand that if you hit a roof when falling, without exploding it's

24 going to change your trajectory, the flight path, and this should have

25 been taken into consideration, or at least considered before being ruled

Page 75

1 out. This is my first ground.

2 Second ground, which is very significant. The Trial Chamber,

3 starting from the Sandia Laboratory formula, never in reality examined

4 what the degree of resilience of the ground. They say it was made of

5 bitumen and gravel, okay, fine, but if you go into the street and look at

6 what's happened you'll see that in this very city where we are, there are

7 city streets made of bitumen that are totally changed by the vehicles

8 passing. So that does mean that the materials do not have the same level

9 of resistance, and we should have conducted very precise research to know

10 what was the degree of resilience to penetration of that particular piece

11 of ground. Failing that, we were bound to make a mistake. I'll come back

12 to this later.

13 Other absolutely essential point. The Trial Chamber is perfectly

14 right in noting that with regard to the craters the hole made by the

15 shell, and this is judgement page -- it had -- [In English] "... redug in

16 order to extract the tail fin."

17 [Interpretation] This was paragraph 447. I also draw your

18 attention to footnote 1618. Inevitably, the Trial Chamber should have

19 concluded this: This crater had been destroyed or redug, widened and

20 changed structurally in its very appearance before any steps could have

21 been made. But you might say this is not that important. Well, I say

22 yes. And I hope you will follow my demonstration. There is evidence

23 showing a soldier sort of digging in the crater in order to try and find

24 the tail fin.

25 Well, three centimetres, Your Honours, it may be not much, it may

Page 76

1 be the thickness of my pencil here. Three centimetres in difference, in

2 error. It's just the end of a knife. It's a gravel, a piece of gravel

3 that jumps from the bottom of the crater. But an error of three to four

4 centimetres, that might mean 33.4 per cent or more of error, of the

5 standard of error. Because this crater allegedly was about nine

6 centimetres deep.

7 Look, if you have an error because the hole has been redug, you

8 have an error of 33, or 45 per cent for four centimetres. The entire

9 calculation is wrong, and who can guarantee to me that when this crater

10 was redug, this did not happen? How did can we say today definitively

11 that the crater remained unchanged?

12 There is one piece of testimony coming from a witness who said

13 yes, yes, this is the same tail fin, because when I took it and I put it

14 back, I had no problem in putting it back into place. This is said by

15 Mr. Zecvic, I believe. I'm just quoting him by memory. It was not

16 difficult to put it back, he said. Fine. But if you have no problem

17 putting it back, what does that mean? It means precisely that the crater

18 had been changed in its width, in its depth so that it could be put back

19 without any difficulty. So this is the very evidence that the hole had

20 been changed, that it was impossible to take any further measurements

21 following that change.

22 Second point that seems important to me. The Trial Chamber relied

23 on the principle that it could found its analysis on the American

24 laboratory formula that I've quoted already, which determines the degree

25 of penetration into a ground, so the initial speed that is necessary, and

Page 77

1 based on the initial speed, you can infer the range of fire. Fine, I say.

2 But the Trial Chamber did not go as far as it should have gone if it

3 really wanted to obtain reliable results because what is the question to

4 be put actually? This is the real question.

5 These technical data, formulas, and results how long have they

6 been in existence, how long have they been available to the community, not

7 the international legal community but the international community of

8 experts? The Trial Chamber gives an answer but does not infer the

9 necessary logical consequences. I now refer to footnote 1640, 1640,

10 page 195 of the trial judgement. It says that the Berezansky formula is

11 similar or analogous in its results to the American laboratory but it

12 existed since the beginning of the 20th century. I repeat, since the

13 beginning of the 20th century.

14 So now the question is as follows: We know that there is a

15 formula in existence since the beginning of the 20th century that provides

16 analogous or similar results, and we also know that in Sarajevo,

17 especially where this question really mattered, because this is what an

18 urban environment where the lines criss-crossed, we know that this formula

19 was never used by all of the community of technicians, experts and

20 ballistics.

21 Why was it not used? I'm going to tell you why. But I think

22 there is only one answer to this question. It is because these formulas

23 are not at all reliable. They are very theoretical, but in reality they

24 are not reliable. If they were reliable, of course, experts in

25 ballistics, technicians would have used them, and we would have long known

Page 78

1 where exactly the fire came. If you do not use those formulas, it is for

2 the very reason that there is no consensus, no agreement about these

3 formulas among the experts. If there is no agreement, it is because

4 that's not the way it works in reality on the ground. The Trial Chamber

5 and the Judges are not experts in ballistics. They could not do more than

6 what all the technicians could do in this regard.

7 Other elements regarding to the Markale incidents, and I would be

8 thankful if in due time you looked at the French transcript. There is a

9 piece of testimony that is absolutely decisive, and it really shows the

10 innocence of General Galic. It is the testimony of Witness AK-1,

11 paragraph 454 of the judgement. There again, the majority only did half

12 of what it should have done.

13 I'll explain what I mean. At the time I heard the witness, when

14 that witness testified, I'm talking about Witness AK, and this is what he

15 said, and unfortunately it was not to be found in the English transcript.

16 That's why I'm asking to you look at the French transcript which is

17 comprehensive, extensive and really matches what the witness said in their

18 mother tongue. I was listening to the Serbo-Croat.

19 I'm quoting now the French transcript. 15th of March, 2002,

20 transcript page 5453. With regard to the shelling of the 5th of February,

21 1994, this is what the witness says. I quote: "And this is something

22 that flew above us." 5453.

23 A little further on, 5472: "I heard the shell, the noise made by

24 the shell." And then something, as if it were something that was shooting

25 above the house. Transcript 5472. Trial record.

Page 79

1 So we have a witness here who says, "I live 500 metres away from

2 the Serbian lines in an area known to be hilly. I heard two things, he

3 says. I heard the shelling, and she describes it as an exploding bottle

4 and then something that flew above my house that I heard, and in court,

5 she heard that as a whizzing sort of, and I think said [noise] or

6 something like this, this kind of noise to indicate whizzing or a sign of

7 sound as it flew above the house.

8 So let's take the Trial Chamber's reasoning but in a reverse way,

9 back to front. Look at the flight path. More or less 75 degrees from the

10 departure point in the Defence views. Of course we left school long ago,

11 but --

12 JUDGE POCAR: [Interpretation] Mr. Piletta-Zanin, please slow down.

13 That would be better for the interpreters. They find it difficult to

14 follow you.

15 MR. PILETTA-ZANIN: [Interpretation] They know how much I like them

16 and I shall comply with your wish. And with my apologies to them.

17 We all remember our school-time, and we knew how to use a

18 compass -- or we take an angle of 65 degrees, we project on the

19 horizontal line the distance of 500 metres, and we take the vertical

20 line. So if we have a 65-degree angle, I made the calculation, the

21 distance in altitude is about 1.000 metres.

22 I challenge -- I challenge, Your Honour, Your Honours, each and

23 every one of us, how can -- to hear at an altitude of 1.000 metres, an

24 object that is not self-propelled, that does not have an engine, that

25 flies silently? I challenge each and every one of us to hear that noise.

Page 80

1 I'm not saying that the witness lied. Of course, he said the truth. But

2 I say how can we try to understand what he said? How could he have heard

3 the flight? He said it was a flight. There is a very simple answer to

4 that. It was that the shell was flying much lower, as it flew over the

5 house, and for it to fly much lower with allegedly an angle of 65 degrees,

6 an acute angle, it must have been fired from much closer on. So much less

7 than 500 metres, which is the distance within the witness's house and the

8 confrontation line. In other words, the mere fact that this witness heard

9 the object fly over his house, or her house, is the undisputable

10 evidence. Unless you want to not see it, this is the finite evidence that

11 this shell was fired from a distance from which it is possible to hear its

12 flight. I mean, for a person in a house can hear its flight, and this is

13 the evidence that this shell was not fired from the Serbian lines. But

14 because the Trial Chamber did not try to find this testimony in the French

15 transcript, the Trial Chamber missed an opportunity to declare Galic not

16 guilty. You have to do it now.

17 Now, about the silent object, we have clear evidence in the trial

18 record, trial transcript 6228. Last point with regard to Markale. We are

19 being told in so many words that this was intentional, that the mens rea

20 has been established for General Galic, but if you have a look at the

21 reasoning behind this mens rea, then something is very striking. What is

22 very striking is the lack of arguments, the meagre arguments, put forward

23 by the Trial Chamber.

24 What are we being told? We are being told that a market is always

25 likely to be hit, and because this marketplace was hit it was hit

Page 81

1 intentionally. I've summed up the reasoning of the Chamber but if you

2 read it again, you will see that it's exactly what I'm telling you. There

3 were a lot of people on the marketplace; therefore, it was an interesting

4 target. Does this mean that I will necessarily destroy it? We are being

5 told that the Serbs were very good at firing on positions and that's why

6 they fired on this position, and we are being told that General Galic

7 wanted to hit that marketplace but we don't know why.

8 On the other hand, in the judgement, the exculpatory evidence is

9 never being considered, including the evidence given by Witness AD, a man

10 who told us that they always fired salvo of two shells at the same time.

11 And as far as I know, in Markale, the Prosecution always said that there

12 was just one single shell that hit the marketplace.

13 If I was to make a reference to decisions older than the motu

14 Morales [phoen] decision, the famous decisions that is not going to be

15 very useful to us today, I will say the following: [No interpretation].

16 Now, let's move on to your second question, Mr. President. I

17 don't know if the interpreters have understood. Well, the interpreters

18 state that they do not interpret from Latin on a regular basis.

19 Mr. President, let me go back to your question, the second

20 question on the Scheduling Order.

21 There are two ways of answering your question. The first option

22 is to examine, to review very quickly, all the paragraphs of the Trial

23 Chamber judgement showing us that these attacks cannot be seen as

24 deliberate attacks. And the second option is statistics, a statistical

25 object, statistical answer.

Page 82

1 Let me list very quickly the paragraphs of the judgement I want to

2 review. To make the job of the interpreters easier, I will tell you what

3 these paragraphs are and then I will review them one after the other.

4 These are paragraphs 210, 212, 213, 215, 218, 216, 219, 220, 222, 222 --

5 220, 222, 229, 231, 234, 244, [In English] 292, 322, 325, 328, 329, 368,

6 370, 414, 417, 435, 436 and 562.

7 [Interpretation] These are the paragraphs we'll review in detail,

8 Mr. President.

9 210. These are general comments without any specification. This

10 can't be verified, and this is contradiction with Exhibit 3137, P3137, the

11 report of Mrs. Tabeau.

12 212. General Briquemont is quoted but unfortunately what is not

13 quoted here is what he himself stated and as follows: [In English] "How

14 do you want to avoid the shelling of the city of Sarajevo."

15 [Interpretation] Transcript 10100.

16 213. Let me quote the judgement: "The Defence repeatedly

17 proposed to witnesses who served the UN in Sarajevo that the physical

18 damage was greater on the front line than in the city, implying that the

19 casualties inflicted in the city were unintentional. The trial record

20 shows however that there was more shelling going into the city and that

21 civilians, and the civilian population as such, in ABiH-held areas of

22 Sarajevo were targeted from SRK-controlled territory."

23 This is completely wrong. This is a serious mistake, a serial

24 factual mistake, Mr. President.

25 Let me quote Mandilovic, 7th of December, 2001, transcript 1054.

Page 83

1 Let me quote him. [Previous translation continues] ... [In English] "In

2 the south part of the city. [Interpretation] Hammer, 16th of May, 2002,

3 8526 on the transcript, about shelling, hitting areas close to commanding

4 posts. [Previous translation continues] ... "near the confrontation line

5 or military installation, yes."

6 [Interpretation] Major Henneberry, a witness who found it a good

7 idea to talk to another witness in order to refresh his memory. In his

8 notebook he noted the following 21st of May, 2002, 8644, transcript

9 [Previous translation continues] ... [In English] "...shelled airport. We

10 watch and report Muslims shell airport from Mount Igman, Ilidza. (Again

11 the news reports were wrong and the wrong side took the blame

12 internationally for actions they didn't start)."

13 [Interpretation] Tucker, 18th of June, 2002, transcript 10032.

14 Michael Rose, 20th of June, 2002, transcript 10261, he says the following

15 [Previous translation continues] ... [In English] "... 94 appeared close

16 to the line of conflict that is so."

17 [Interpretation] Witness Y, 1st of July, 2002, transcript 10941.

18 He's very clear, although in closed session, and then General Adrianus

19 Van Baal, a Dutch man, transcript 11381: [In English] "I would like us to

20 focus on Sarajevo. Could you first confirm if this is the case since we

21 have had some testimony to this effect? That the major destructions

22 occurred in the area of the demarcation line on or the confrontation

23 line?"

24 "Answer: That's correct."

25 JUDGE POCAR: Can you please slow down for the interpreters?

Page 84

1 MR. PILETTA-ZANIN: [Interpretation] Mr. President, I'm trying.

2 Paragraph 215 of the judgement, 215 and 218. With respect to

3 shellings, nothing of what Ashton said should have been considered. This

4 witness is not reliable, not credible. If you look at all the journalists

5 in the world, you can see that he's the only one who was never transferred

6 to an American base in Sarajevo and then -- so he's the only one who

7 benefitted from this treatment without having to pay a penny for it as

8 opposed to the other journalises. And just as Judge Nieto-Navia

9 understood what it was all about, we all understood what it was all about.

10 Please refer to page 24 of the dissenting opinion of Judge Nieto-Navia.

11 Paragraph 216. The Chamber has said the following about Mr. Akif

12 Mukanovic, and that was precisely the reason why there were more civilians

13 amongst the injured coming to the hospital.

14 But once again, this is completely false. Let me refer to the

15 Tabeau Exhibit 3137 that shows that the majority of victims and casualties

16 were military and male and not civilians.

17 Paragraph 219. Page 5777, here we talk about Witness AD; I

18 mentioned him earlier on. But the Trial Chamber forgets to state that he

19 refused to execute order to shoot at civilians. This is the proof that

20 orders had been given by his superiors not to fire at civilians. With

21 respect to that, let me remind you of the lapsus calami committed by the

22 Tribunal, by the Chamber, when dealing with a number of exculpatory

23 evidence for General Galic when it was stated by the Chamber that it was

24 possible that General Galic had given orders or had issued orders, and

25 I'll quote from memory and in English. [In English] "...not to attack

Page 85

1 civilians."

2 [Interpretation] Quoting from memory: [In English] "...attack

3 civilians."

4 [Interpretation] Well, in English as well as in French it means

5 that you have to abstain not to attack civilians, in other words, you have

6 to attack them. This is a lapsus calami. That is quite telling, telling

7 about the state of mind of the Judges of the Trial Chamber. If you want

8 the references, I can provide them to you later on.

9 As for Witness AD, please look at transcript 10755.

10 Paragraph 220, Mr. Hvaal, testimony of Mr. Hvaal never

11 corroborated.

12 Paragraph 222. [In English] "... rarely leaving their apartment.

13 [Interpretation] This is in contradiction with -- to

14 paragraph 216.

15 And now let me review neighbourhood by neighbourhood. 229,

16 Grbavica area. There is mention of protected roads here, covered streets

17 used by civilians to travel around Sarajevo, and we are being told that

18 the Serbs were targeting these streets and that their aim was to target

19 civilians, to attack civilians, but no one ever checked whether the army

20 was also using these streets and why would have the army used streets and

21 roads other than those covered to travel around the city?

22 Paragraph 231. Once again, and this is something that occurs

23 throughout the judgement, we have no specifications about the shellings.

24 That would have allowed to us say, no, this is in relation with the

25 specific attack or strategy.

Page 86

1 244, Ashton again, nothing specific about the shellings.

2 245, same thing. We do not even know if the damage described here

3 occurred during the period, the commanding period, or outside of that

4 period.

5 246, Hrasno. Yes, he gave dates but why didn't Mr. Ierace provide

6 the specific examples to the Tribunal?

7 292, Alipasino Polje. No specific information about the

8 shellings. Nedzarici is mentioned, but the Trial Chamber does not say

9 that Nedzarici was razed by -- Nedzarici was razed by non-Serb shellings.

10 Then the following paragraph, a balcony that was destroyed but it

11 is not mentioned that it was on the separation line.

12 328, 329, Butmir, Igman, but Butmir and Igman were not Serbian

13 positions.

14 Dobrinja, 368, same thing with regard to what is stated by UN

15 personnel we have no idea if this refers to a previous period or not.

16 369. Another balcony has been destroyed but this is a different

17 line of confrontation.

18 370, Dobrinja again. Divided into two parts. It's true that the

19 place was shelled --

20 JUDGE POCAR: [Interpretation] Once again, I have to interrupt

21 you. You have to slow down a bit for the interpreters.

22 MR. PILETTA-ZANIN: [Interpretation] Your Honour, it's obvious that

23 I haven't been at the Tribunal for quite sometime. I'll try. I'll do my

24 best. I'll try to slow down.

25 370. Dobrinja was the area with the most -- highest level of

Page 87

1 conflicts but Nedzarici is not mentioned. Nedzarici, the Serb area that

2 was razed to the ground.

3 Then 374, the -- about the airports. The Trial Chamber does not

4 record that the airport was not fired upon. Then Brdo, usually a military

5 objective. Stari Grad, Markale, here again the Trial Chamber states that

6 it has been hit by Serb firing, but the old brewery was -- is mentioned,

7 but it was not -- what's not mentioned is that everybody knew that it was

8 a storage place, and it was an area where arms were being repaired.

9 Therefore, a military objective, legitimate objectives. What is not

10 stated is that the Bistric barracks were located there with Commander

11 Cacak [phoen].

12 562. That's the last paragraph I'm going to mention to answer

13 your question. Here, the Trial Chamber has omitted to take into account

14 that after the 5th of February 1994, no shelling is possible anymore.

15 Why? First of all, because firing has stopped and also because heavy

16 weaponry, thanks to General Galic, who executed that, as part of the total

17 exclusion zone, the heavy weaponry is being removed to an area located 20

18 kilometres away from Sarajevo. So whatever is being said, no campaign of

19 shelling is possible from the beginning of 1994.

20 Mr. President, I'm now going to move on to the second part of my

21 demonstration, but for that I will need the ELMO - I suppose you still

22 have an ELMO in the courtrooms - and I will need the assistance of the

23 usher. I'd like her to place this document on the ELMO, with your

24 permission. Sorry, please -- can you please wait? I've got a number of

25 documents I would like to show you. And the copies will be given to the

Page 88

1 Prosecution.

2 Your Honour, I don't know if I'll be granted additional time since

3 we have some slight technical hiccups here. Things are not going as

4 quickly as I thought they would.

5 Can everybody see the document on the monitor? Yes,

6 Mr. President. This is a document from the Prosecution. It's a page from

7 Mrs. Tabeau's report. Can you please show the entire page. I'm mostly

8 interested in the graph. I'd like to see the page -- yeah, the bottom of

9 the page.

10 Okay. Let me take the example of Stari Grad, just as an example.

11 The light area, for females, it's not relevant in terms of numbers, but as

12 for males, the light part indicates civilians and the dark coloured area

13 indicates or represents the military. We have taken the example of Stari

14 Grad that everybody presents as purely civilian area. We have a military

15 population of 45 to -- 40 to 45.000 people, for a total population of

16 340.000. With this supposedly indiscriminate shelling on the supposedly

17 civilian area, we have four times more military casualties than civilian

18 casualties. And since the ratio was one-to-seven, seven times more

19 civilians than military personnel, to arrive at that result of four times

20 more military casualties, we have to multiply all this by seven. In other

21 words, in this supposedly civilian area, you had 30 times more -- I'm not

22 talking about 30 per cent, I'm saying that there were 30 times more

23 military casualties than civilian casualties. These are the figures of

24 the Prosecution. These are not our figures. Under these circumstances,

25 how can you say that there were no selective and proportionate fires?

Page 89

1 And to finish - you can leave that on the ELMO - let me go back to

2 your last question. If terror existed, the crime of terror exists, and

3 we've always stated that that's not the case, if that exists, can it be

4 implemented by fire on legitimate, on lawful objectives but without

5 respect of the principle of proportionality? Under those circumstances,

6 could terror ensue?

7 I understand what you're aiming at in order to possibly modify,

8 alter the judgement. Let me say that Sarajevo is not the laboratory we

9 need, because in Sarajevo there are many, many targets. These targets are

10 legitimate, as in other cities. When you fire on such a target in the

11 city, those who live around the targets, after the first explosion - and

12 this, it's quite normal, they are civilians - they will feel terror, which

13 is quite normal, legitimate. Terror is something that a civilian will

14 experience when a bomb explodes. Terror there exists, and if proportion

15 -- the principle of proportionality had not been complied with, then we

16 can say that right from the beginning, there was terror in Sarajevo due to

17 the legitimate use of force as part of these operations.

18 So we come to the question of whether it's possible to murder a

19 dead man. That's basically what it comes down to here, and the answer

20 obviously is no. Therefore, you cannot create a legitimate and lawful

21 terror by not respecting the principle of proportionality. Why not? Why

22 not? It's because in Sarajevo, if the -- if a legitimate targets had been

23 identified, and that was never done, and if you distinguish between

24 illegitimate and legitimate actions, in Sarajevo, terror was the result of

25 legitimate, lawful actions. Therefore, you cannot imagine anything else in

Page 90

1 Sarajevo.

2 I'm finished, Mr. President. Therefore, let me say that a yes

3 answer cannot be given to your question. Thank you very much.

4 JUDGE POCAR: [Interpretation] Thank you very much,

5 Mr. Piletta-Zanin.

6 MS. PILIPOVIC: Thank you, Your Honours. The second part of the

7 question put to the Defence asks that we answer the fact what were those

8 direct attacks that were wrongly categorised by the Trial Chamber that led

9 to erroneous conclusions? The Defence has to point out that it was

10 established that in the course of the conflict, on the Sarajevo front,

11 there were legitimate military actions. This is what the OTP acknowledged

12 themselves, and the OTP was supposed to separate those that were

13 legitimate from those that were not. And they failed to do that. The

14 scheduled incidents during the trial changed. So in addition to scheduled

15 incidents, which were submitted together with the second addendum to the

16 indictment, where the Prosecutor put on a certain incident, no other

17 incidents were reviewed.

18 The Defence would now like to point your attention to paragraph 86

19 of the Expert Commission of the United Nation where it is stated that in

20 order to establish whether an incident was non-legitimate or not, what

21 needs to be established was both the time of that operation, the

22 geographic location, the position of the parties, and all other

23 circumstances.

24 When deciding whether there were direct attacks on civilians and

25 whether there was a crime of terror, the Trial Chamber did not establish a

Page 91

1 single fact in relation to these factors, such as the place and time of

2 the action, the position, deployment of the parties, and the capacity of

3 victims. The Trial Chamber relies erroneously on the so-called general

4 evidence. The Defence believes that such erroneous findings of the Trial

5 Chamber about direct attacks on civilians is based both on errors in fact

6 and errors in law because the Trial Chamber inferred such findings on the

7 basis of the so-called general evidence.

8 We would like to draw your attention to paragraph 188 of the

9 judgement - we are now dealing with general evidence - where the Trial

10 Chamber itself devotes attention to evaluating certain evidence, namely

11 the distance between the victim and the most likely source of fire, the

12 distance between the place where the victims was hit and the confrontation

13 line, combat operations which were taking place at the time, relevant

14 presence of military activities and facilities in the vicinity, the

15 appearance of the victims, how visible the victim was and how the victim

16 was dressed, as well as the ability of unobstructed line of sight.

17 The Defence claims that whether it comes to the so-called

18 unscheduled incidents, the Trial Chamber did not go into any of these

19 elements because, simply speaking, the witnesses of the Prosecution, in

20 their evidence, didn't provide a single valid fact based on which these

21 elements could be analysed. Thus, the Trial Chamber, when it comes to a

22 direct attack on civilians, came to an erroneous conclusion.

23 Another portion of the reasoning in paragraph 188 of the judgement

24 shows that the Trial Chamber also erred when it stated that, in accordance

25 with the law set out in part 2 of this judgement and in fairness to the

Page 92

1 accused, the Trial Chamber had to decide whether a scheduled incident is

2 beyond reasonable doubt representative of the alleged campaign of sniping

3 and shelling or whether it is reasonable to believe, which was very

4 important, that the victim was hit by ABiH forces, by a stray bullet, or

5 taken for a combatant. And the forces of ABiH were also targeting

6 civilians. Thus we have to wonder, how was it possible for the Trial

7 Chamber to come to this general conclusion that there was a direct attack

8 on civilians as part of a campaign in part of all other cases, not only in

9 scheduled incidents, when the Trial Chamber did not go into analysing a

10 single incident? The Trial Chamber dealt with this in paragraphs 582 to

11 595 of the judgement.

12 By failing to establish facts in all unscheduled incidents, the

13 Trial Chamber, in our view, founded its conclusions on assumptions,

14 because when looking at scheduled incidents and establishing that such a

15 small number of these scheduled incidents was actually representative of

16 the entire campaign. My apologies.

17 Now the Defence would like to go into analysing scheduled

18 incidents. When it comes to scheduled incidents, it is our position that

19 the Trial Chamber only in these instances analysed the issues that I

20 referred to in the introduction to my presentation.

21 The Defence would -- believes that the Trial Chamber wrongly

22 categorised these direct attacks on civilians as the alleged attacks in

23 all scheduled incidents, and concluded erroneously that this could be

24 attributed to General Galic. In our view, it cannot be attributed to any

25 single member of the SRK let alone General Galic, and we support this view

Page 93

1 by pointing to the consistent evidence of Defence witnesses as well as

2 various expert witnesses who relied on state-of-the-art scientific

3 evidence.

4 I have to point to the fact that in the indictment, the OTP

5 referred to 32 scheduled incidents of sniper attack and six incidents of

6 shelling throughout the 23 months of the indictment, and the first

7 incident was ten months before the arrival of General Galic to the post of

8 corps commander. The Prosecution added five new incidents, and in those

9 five new incidents, they also included an incident which took place on the

10 13th of December, 1992. When it comes to shelling incidents, the first

11 was on the 1st of June.

12 The Defence wonders whether when it comes to a period before

13 December 1992, that is to say a period of more than three months, we

14 wonder what about the period of ten months before the 1st of June, 1993,

15 when allegedly the first deliberate shelling of civilians took place?

16 These ten months of the alleged representative sample of the campaign and

17 more than three months without representative sniping of civilians, these

18 are all periods of time that contradict the finding of the majority that

19 there was a campaign of deliberate attack on civilians.

20 Judge Rodrigues issued a ruling on the 5th of October, 2001,

21 denying them the ability to analyse facts and stating that that can be

22 used only as an illustration, and this could be done only in order to

23 establish unlawfulness of somebody's conduct. This change in attitude

24 points to the fact that the Prosecution could not prove in these ten

25 incidents that were withdrawn that there was a deliberate attack on

Page 94

1 civilians, which confirms the position of the Defence, that it is

2 impossible to conclude that such an incident was a deliberate targeting of

3 civilians.

4 So the trial began with 26 sniping incidents and five shelling

5 incidents. After the Prosecution concluded their case, when the Defence

6 asked for acquittal claiming that the OTP failed to prove the existence of

7 crimes, the Trial Chamber acquitted him in relation to three incidents, 7,

8 12 and 19. And the position of the Trial Chamber was that

9 the evidence led in relation to incidents 7, 12 and 19 wasn't sufficient

10 to convince them beyond a reasonable doubt that the soldiers under command

11 and control of General Galic conducted a direct attack on civilians.

12 After the Defence case, the Trial Chamber concluded that

13 additional five scheduled incidents were not proven by the Prosecution;

14 13, 21, 11, 14 and 26. Therefore, out of 23 scheduled incidents, based on

15 the position of the Trial Chamber, the Prosecution didn't prove five of

16 them, a total of eight, three of which were mentioned in the acquittal,

17 98 bis ruling, and five in the judgement. So the Trial Chamber

18 established that only eight incidents were proven.

19 And the majority believed that ten were proven.

20 Judge Navia in his opinion believed that ten were not proven.

21 Without analysing the opinion of Judge Navia, the Defence would

22 like to point out that out of 26 incidents which -- concerning which

23 evidence were led, eight were by ruling of majority found as unproven and

24 eight were, which is to say that this is one-third or 33.33 per cent of

25 scheduled evidence. The majority believed that these 18 incidents were

Page 95

1 representative of the campaign of deliberate targeting of civilians aimed

2 at spreading terror, whereas Judge Navia did not accept this conclusion.

3 He thought that this was not representative of the campaign but, rather,

4 that these were isolated attacks on civilians.

5 The conclusion is that the scheduled incidents cannot be

6 representative of the general situation in Sarajevo. Not only that, they

7 can't be even representative of the direct attack on civilians, and we

8 shall be speaking further when we come to the analysis of scheduled

9 sniping incidents.

10 Given the analysis that we just presented to you, and which was

11 described in paragraph 188 of the judgement, and when analysing the

12 reasons that the Trial Chamber described, these reasons would boil down to

13 the following: Impossibility to reconstruct the events; inconsistency in

14 the evidence of witnesses when it comes to incident 16 and 2; possibility

15 to injure a victim through a ricochet or stray bullet, incident 5, 24, 20,

16 23 and 4; unreliable nature of establishing the source of the bullet in

17 incidents 7, 2, 15, 18 and so on; and unreliability of information on the

18 position of the victim, weather and visibility and distance, and

19 possibility to discern whether the victim was a civilian or a soldier,

20 incidents 10, 20, 27 and 18; vicinity of military -- or, rather, the fact

21 that military facilities were close, such as soldiers, canteens, military

22 check-points and so on; unreliability of panoramic photographs, as well as

23 the features of the place where the alleged victim was, whether it was an

24 isolated place on the hills, a forest where one doesn't expect to come

25 across civilians and so on.

Page 96

1 Based on this, the Trial Chamber rejected incidents 13, 21, 26, 11

2 and 14 in their ruling, and in their ruling on the 3rd of October, 2002,

3 they rejected incidents 7, 12 and 19.

4 The Defence, in addition to the above reasons, will now also point

5 to the reasons which exclude direct and deliberate attack on civilians in

6 the remaining scheduled sniping incidents.

7 This was my response to the second part of the question, and in

8 view of the limited time, in relation to all of these nine elements listed

9 in paragraph 188 of the judgement, I also listed the incidents that could

10 fall under this item 9. And by applying these standards, all of these

11 incidents, that is to say these 18 incidents, were in view of the majority

12 representative can be thus rejected.

13 Thus, by failing to apply identical standards and by applying the

14 reasons of the majority in a smaller number of incidents, the Trial

15 Chamber erroneously made conclusions about these scheduled incidents that

16 I just listed. However, we provided a detailed analysis of all of these

17 incidents in our appeals brief. And by going outside of its standards,

18 the Trial Chamber drew wrong conclusions about deliberate targeting of

19 civilians.

20 The attacks on civilians, even if proven, cannot be sufficient to

21 establish that there was a pattern. Because if we take into account the

22 fact that the front line was 27 kilometres long, one can only come to a

23 reasonable conclusion that these were isolated events, where due to the

24 situation prevailing on the front some civilians got hurt, yes.

25 I also have to point out that the Trial Chamber should have been

Page 97

1 guided by the principle in dubio pro reo as we stated in paragraph 16 of

2 our brief, which is what Judge Navia stated in his opinion in

3 paragraph 10. The majority was duty-bound to look for intent, and the

4 intent was not proven in any scheduled or unscheduled incidents based on

5 which the Trial Chamber should have rejected these incidents, especially

6 by relying on the principle of in dubio pro reo as one of the basic

7 principles of criminal law.

8 By failing to do that, the Trial Chamber concluded that there was

9 an intentional targeting of civilians which is an erroneous conclusion.

10 They concluded that this deliberate targeting of civilians was aimed at

11 spreading terror.

12 This intent, which includes the deliberate attack of civilians, is

13 something that the Prosecutor didn't even try to prove, and they didn't

14 prove it ultimately. And here we draw your attention to the report of

15 expert witness Kuljic. As the analysis of my colleague, Piletta-Zanin,

16 has proven that there was no indiscriminate shelling of civilians, we

17 stand by the position that the same is true of sniping incidents. Because

18 when firing from a light weaponry, it can -- this type of firing can only

19 be -- cannot be discriminate. And here we refer you to a report of the

20 Security Council of United Nations, paragraph 6(B).

21 The inability to establish the distance and the possibility of

22 establishing visual line of sight from the place where one is firing from

23 and the place where there is victim, it is impossible under those

24 circumstances to conclude whether this was deliberate targeting of that

25 particular target or not. Especially I'd like to draw your attention to

Page 98

1 the fact that during the trial, it was proven that the members of

2 Sarajevo-Romanija Corps did not have any snipers. In addition to that, in

3 no incident was it determined who actually fired the shot, so it is

4 impossible to prove beyond a reasonable doubt -- or to conclude beyond

5 reasonable doubt that a member of SRK actually fired the shots. It would

6 be possible to only assume, but that is not a basis for a conclusion of

7 fact or law.

8 I would also like to stress that had the Trial Chamber visited the

9 site and visited -- and been able to see the topographic features and the

10 position where the bullet was fired and the -- where the victim actually

11 stood and whether there was a line of sight, had that been done, it would

12 have been able to make such conclusions whether there was an intent to

13 fire on civilians at all.

14 So the Trial Chamber erred, the majority erred, when it decided

15 there was a deliberate campaign to spread terror among civilians because

16 neither the direct attacks nor such intent have been actually proven.

17 Now we would like to answer the question, in the question

18 number 3, as to the length of time in which the hospital remains a

19 legitimate military target after the end of military activities. The

20 Defence has to say that this is only a hypothetical question, not a

21 specific question, because the Prosecution did not prove and could not

22 prove the attack of SRK forces on any hospital, so we don't have any time

23 of targeting from the hospital and of the hospital.

24 The majority dealt only with the Kosevo hospital in paragraph 509,

25 concluding that the hospital building was fired, and also referring to the

Page 99

1 estimates of damage to Kosevo hospital done by Prosecution expert,

2 Mr. Harding. I have to also stress that this was not actually the Kosevo

3 hospital but the military hospital. We have to stress that Kosevo

4 hospital was never -- there were no impacts on the Kosevo hospital itself.

5 There were only impacts in the yard of the hospital held by the ABiH

6 units, on the firing positions that they had there. The firing positions

7 were identified in the hospital compound, and whenever fire was opened

8 from those positions, SRK members fired back, and in that -- in those

9 conditions, the hospital was a legitimate military target.

10 DP-51, Defence witness, explained that throughout the time that he

11 worked in the hospital, there were three tanks positioned in the hospital

12 compound and three combat vehicles.

13 The Defence would like to note also the protest admitted into

14 evidence as Defence Exhibit D29, sent by General Morillon to Alija

15 Izetbegovic, noting that mortars were firing from the Kosevo hospital, and

16 this is a repeated protest.

17 Also, Mr. Carswell mentioned -- General -- Mr. Carswell mentioned

18 that at least 25 -- he received information that the hospital was used to

19 fire shells and to attack SRK forces.

20 Also, testimony by Witness Tucker, assistant aide de camp of

21 General Morillon from October 1992 to March 1993, where he notes that ABiH

22 troops were opening fire from the hospital.

23 In accordance with the Geneva Conventions, the hospital thus

24 becomes a legitimate target without any temporal limitations because three

25 tanks and APCs were actually located there.

Page 100

1 The Defence would also like to refer to page 144, annex 6 of the

2 expert, UN Expert Commission report, where it says that from May until

3 December, eight months before the appointment of General Galic as the SRK

4 commander, that the hospital was targeted also in that -- eight times was

5 targeted in that period.

6 The Defence believes that it is impossible to actually answer to

7 the question asked by the Appeals Chamber as to how long a hospital

8 remains a legitimate military target after the end of the military

9 activities from the hospital. The question is how much time has to elapse

10 for a military operation to be considered as completed and for the other

11 side, the opposite party, to be convinced that there will be no further

12 military action from a certain position? So this is the response of the

13 Defence regarding question 5.

14 As regards the answer of the Defence to the question as to why we

15 believe that the Trial Chamber erred when it decided not to take the

16 on-site visit, we believe that it would have been in the interests of

17 justice and very useful for the full and proper determination of facts, it

18 would have been in the interests of justice for the Trial Chamber -- had

19 the Trial Chamber visited the site of the incidents and to find out

20 firsthand what they look like and to be able to determine the distance

21 from the place where the bullet was fired to where the victim actually

22 stood, whether there were any obstructions in the line of sight. We

23 believe that it would have been most useful had the Trial Chamber visited

24 the sites after the -- both the Prosecution and the Defence had rested

25 their case, because they would have been able to see for themselves and to

Page 101

1 give appropriate value to the evidence presented by the both parties. And

2 the Trial Chamber would have been able to determine that the SRK did not

3 control the high positions around the town, the town of Sarajevo.

4 JUDGE POCAR: Sorry to interrupt you, I am being informed that the

5 tapes are about to finish. So I believe we have to break now and we'll

6 give you back the five minutes you are entitled to after the break,

7 because otherwise we will have no record of the hearing. It's unfortunate

8 but it's a technical matter and I have to decide it.

9 MS. PILIPOVIC: [Interpretation] Thank you, Your Honour.

10 JUDGE POCAR: So the hearing is adjourned now for 30 minutes. We

11 will reconvene at 11.20.

12 --- Recess taken at 10.52 a.m.

13 --- On resuming at 11.24 a.m.

14 JUDGE POCAR: So we resume our hearing.

15 Ms. Pilipovic, I give you back the five minutes you had.

16 MS. PILIPOVIC: [Interpretation] Thank you, Your Honour. I hope

17 that you will have some understanding for the Defence in light of the fact

18 that we were interrupted and that you would grant us five more minutes at

19 least.

20 So I stopped --

21 JUDGE POCAR: Let me interrupt you. [Microphone not activated].

22 THE INTERPRETER: Microphone, please, Your Honour.

23 MS. PILIPOVIC: [Interpretation] So I stopped at the issue about

24 the on-site visit of the Trial Chamber to Sarajevo. We believe that the

25 Trial Chamber would have been able to satisfy itself that Mojmilo, Debelo

Page 102

1 Brdo, Velika and Mala Capa [phoen], part of Trebovic and Zuca are not

2 really -- were not really controlled by the SRK, and the Trial Chamber

3 would also have been able to see that Hrasno Brdo, the area where SRK had

4 its positions, that in incidents 10, 15, 20 and 27 the SRK could not have

5 targeted anyone from those positions, and we believe that the Trial

6 Chamber erred in law and in fact when making its conclusions.

7 As regards the existence of the campaign to conduct direct attacks

8 to spread civilians in -- in the paragraph 733 of the judgement, it is

9 obvious that the Trial Chamber erred when it concluded that such a

10 campaign existed. The majority basing itself on those elements decided

11 there was a campaign of sniping. The Defence believes that in the two

12 years, in light of the 18 incidents accepted by the majority, that the

13 frequency is not sufficient for a campaign to be determined, referring

14 also to paragraph 208 of the judgement.

15 Again, as regards intensity, we have 18 cases in two years.

16 Most -- in most cases the victims died. Now, in light of the final report

17 of the NATO regarding its attacks on the FRY, as regards the geographical

18 spread, the 18 incidents that were accepted on the theatre that was 237

19 kilometres long, you cannot really make any inferences as to the

20 geographical spread, that it was widespread.

21 As regards the number of victims and the report of Ewa Tabeau

22 where there were -- it was determined that 253 people were killed in

23 sniping incidents and 1.296 wounded, as listed in paragraph 579, it is not

24 enough to conclude that there were -- there was deliberate targeting of

25 civilians.

Page 103

1 There were also -- as to whether there was an attack on civilians

2 taking into account a large number of civilian objects, facilities that

3 were used for military purposes, such as the day care centre, schools and

4 so on, a large number of trenches dug in the town, the fact the troops

5 were positioned on the front lines and coming with the civilians, in this

6 light we would like to refer to the Blaskic appeals judgement and also the

7 final report of the UN experts and also the NATO commission, NATO air

8 strikes commission. The Defence would like to stress that again, this is

9 in -- this is in relation to paragraph 750 the majority decided that

10 General Galic is responsible under Article 7(1), concluding that General

11 Galic issued oral instructions and orders. This is wrong. General Galic

12 never did so. At the briefings, and the briefings were attended only by

13 the corps command. On some occasions there was also the brigade commander

14 present in the period of one month when it was necessary to produce

15 certain reports.

16 As for orders on the corps commander always issues orders in the

17 written form, we would like to stress that General Galic never issued any

18 oral instructions, and had -- there was a written order, prohibiting

19 attacks on civilians. We would like to refer to paragraph 745 of the

20 judgement.

21 The Defence would also like to point to the view of the Appeals

22 Chamber in the Blaskic case, 435 to 439, where certain review standards

23 were set for the review of the Trial Chamber judgement, and we believe

24 that these standards should apply in General Galic's case.

25 We would also like to stress that the BH army was in a constant

Page 104

1 state of heightened combat readiness. The purpose of this level of combat

2 readiness was to make efforts to break out of the encirclement, and we

3 would like here to refer to the opening statement by the Prosecutor,

4 3rd of December, 2001, and we believe that all the SRK engagements had

5 legitimate military targets.

6 And as to the erroneous conclusions that General Galic did order

7 attacks on civilians because of the pattern of attacks on civilians, in

8 light of the intensity and the geographical spread of those attacks, the

9 Defence would like to refer to the view taken by the Appeals Chamber in

10 the Blaskic case, 512, paragraph 512, where it is decided that certain

11 elements that constitute the pattern of unlawful conduct are insufficient

12 to conclude that there was an order to engage in unlawful activities.

13 In paragraph 90, annex 6(B) of the UN expert's commission, we also

14 refer to that, and we believe that the only possible legal finding is that

15 General Galic cannot be found responsible for the criminal offences he is

16 charged with under Article 7(1). In particular, there is the erroneous

17 position in paragraph 72 of the judgement, the majority decision,

18 regarding General Galic's conduct in accordance with the existing plan.

19 We believe that no element has been proven to -- as to the existence of a

20 plan to target civilians, and the fact that General Galic may have acted

21 in accordance with the minutes from the meeting in the 14th of May in

22 Mrkonjic Grad, it is impossible to conclude that he did so because Defence

23 witnesses gave their views of the minutes of the 15 May in Mrkonjic Grad,

24 so the Defence actually contested and successfully the views presented by

25 expert witness Donja.

Page 105

1 So these are, in a nutshell, the arguments of the Defence; namely,

2 that General Galic cannot be held criminally responsible, based on which

3 the Defence asks that the Appeals Chamber acquits General Galic of

4 criminal responsibility for all crimes he's charged with, or to reverse

5 the judgement of the Trial Chamber in toto and to order a retrial, or

6 should they find him responsible, to reduce his sentence.

7 So we've presented all those views in our appellate brief but we

8 would like to reiterate them now.

9 Thank you.

10 JUDGE POCAR: I thank you.

11 Any questions from the Bench? Judge Guney.

12 JUDGE GUNEY: [Interpretation] Thank you, Mr. President.

13 [In English] I would like to ask a question, a sort of request of

14 clarification from Matre Piletta-Zanin.

15 In the framework of the ground of appeal, number 2,

16 disqualification of a Judge. Matre, I want to you clarify the difference

17 between the function of a Judge who confirms an indictment and those of a

18 Judge sitting at trial. Does the fact of confirming an indictment and

19 subsequently of sitting at the trial of the -- of the accused, whose

20 indictment he has confirmed, reflect the Judge's bias? This is the

21 question. Thank you.

22 MR. PILETTA-ZANIN: [Interpretation] Thank you very much for asking

23 this, Your Honour. I will have to give you some explanation. Can I do

24 so? Yes, thank you.

25 Yes, I will answer in the affirmative, inasmuch as the proceeding

Page 106

1 or the procedure of confirming, which is known and applied by this

2 Tribunal, implies two things: Firstly, that a case file will be

3 disclosed, which the Defence will not have, will not be appraised of. And

4 secondly, the fact that the Judge will have ruled as to the possible

5 existence of the guilt of somebody on the basis of prima facie evidence.

6 What I say is the following: If you have a Judge, such as

7 Presiding Judge Orie, who on the basis of prima facie holds that the

8 evidence produced by the Prosecution in the Mladic case cannot be reversed

9 by any Defence, there is good cause to allege genocide, and therefore,

10 that genocide would then be established, and if the active participation

11 of General Galic is mentioned, it means that the said Judge admitted in

12 this hypothesis but officially and publicly that General Galic committed

13 acts of genocide within the consideration of prima facie evidence.

14 So I answer yes. And this shows the bias you mentioned. Why so?

15 Because we know that in all legal systems an accused must objectively

16 consider from a subjective point of view but must objectively consider

17 that the Judge who is going to try him will not be biased.

18 However, in this case, how an accused prosecuted for murder or

19 crimes against humanity can imagine even if he knows that Judges are

20 specialists that the Judge is going to be unbiased, when the said Judge,

21 on the basis of a case file not known to the Defence, has already said

22 yes, very clearly on the basis of prima facie, yes, that General Galic

23 also committed acts of genocide. The crime of genocide is more serious

24 than that of murder. This being so, it is obvious that any possibility of

25 acquittal would be ruled out anywhere in the world.

Page 107

1 So I answer yes to your question. Thank you.

2 JUDGE POCAR: [Interpretation] Thank you.

3 [In English] I believe we can now turn to the Prosecution for

4 the -- their arguments in response. You will have as a whole one hour 45

5 minutes. We are a little late in our schedule. You can just start and

6 we'll break as scheduled and then you will have the additional time in the

7 afternoon.

8 Please go ahead.

9 MS. BRADY: Thank you, Your Honours.

10 What I'd like to do is just give a brief introduction, a brief

11 outline as to how the Prosecution will proceed today in responding to the

12 Defence's appeal.

13 As you know, the Prosecution's full response to all of the 19

14 grounds of appeal is set out in full in our response brief and we rest on

15 those submissions. Of course, we are available to answer any questions

16 Your Honours may have arising from any of those grounds.

17 Today in our oral submissions what we will be doing is focusing on

18 responding to the main areas that the appellant has concentrated on in his

19 oral arguments today, and this is essentially in two areas. Firstly, the

20 questions and the answers that the appellant gave to Your Honours'

21 questions posed in the Scheduling Order; and secondly, respond to the

22 challenges, the very factual challenges, that the Defence made to the

23 specific incidents that were proven and found beyond reasonable doubt by

24 the majority, as well as the majority's findings in relation to the

25 campaign itself.

Page 108

1 The first speaker will be Ms. Michelle Jarvis, who will deal with

2 the issues raised in grounds 7, relating to the crime of terror, and in

3 grounds 5 and 16, relating to the change -- the Defence's arguments in

4 relation to the change of charges. She'll also be addressing and

5 answering Your Honours' questions on questions 1 and 2 posed to the

6 Prosecution, as well as providing a response to the Defence's answer to

7 the question number 2 which you posed to the Defence.

8 After that, Mr. Mark Ierace will address many of the factual

9 challenges that have been raised this morning relating to the campaign and

10 the specific incidents, and he will be grouping his arguments into four

11 main areas. Firstly, the appellant's arguments concerning the Chamber's,

12 and the majority in particular's, approach to the evaluation of the

13 evidence. This is covered in grounds 11, 15 and 17 of the Defence appeal.

14 Secondly, he'll be addressing you on -- or responding to the appellant's

15 arguments relating to the Chamber's alleged failure not to consider

16 properly the principles of distinction and proportionality and their

17 alleged failure not to properly consider the issue of collateral damage.

18 This is contained in ground 12. Thirdly, he'll be dealing with factual

19 challenges, factual arguments today, made by the appellant to specific

20 scheduled incidents, both sniping and shelling, and at that point, also

21 deal with the arguments about the non- -- the Trial Chamber's not going on

22 a view to Sarajevo. This is covering grounds 17 and ground 3. And

23 finally, he'll address the question in relation to the hospitals,

24 question 3 that Your Honours posed.

25 Then if time allows, Your Honours, I'll be making -- the

Page 109

1 submissions this morning made by the appellant regarding his conviction

2 for ordering, that is contained in grounds 10 and 18, his submissions were

3 quite brief, and I myself will be brief in my response to those.

4 So with that outline in mind, I'll give the floor to

5 Ms. Michelle Jarvis. Thank you.

6 MS. JARVIS: Thank you, Your Honours.

7 For 23 months, the Bosnian Serb forces under General Galic's

8 command unleashed a deadly campaign of psychological warfare against the

9 Bosnian Muslim civilian population of Sarajevo. This psychological

10 warfare had a very physical impact. It consisted of a shelling and

11 sniping campaign that caused extensive civilian deaths and injury and was

12 calculated to terrorise the Bosnian Muslims into abandoning their struggle

13 for Sarajevo.

14 For his role, the majority convicted General Galic for the crime

15 of terror and the Prosecution submits that the majority was correct in

16 this conclusion.

17 In support of this position, I'll address Your Honours today on

18 five primarily legal issues in the following order: First, and in

19 response to the first question that Your Honours have addressed to the

20 Prosecution, I'll explain why the majority was correct to convict General

21 Galic of terror based on the 22 May 1992 agreement that the parties had

22 entered into, and in that same regard, why Article 3 of the Statute is

23 broad enough to encompass jurisdiction over such international agreements.

24 Second, and by way of an update to the Prosecution's response

25 brief, I'll address the Chamber on the support that is derived from the

Page 110

1 2005 ICRC customary law study for the classification of the crime of

2 terror as part of customary international law.

3 Third, and in response to the second question that Your Honours

4 have addressed to the Prosecution, I'll explain why indiscriminate attacks

5 against civilians can be regarded as part of the crime of terror.

6 Fourth --

7 MR. PILETTA-ZANIN: [Interpretation] Your Honour, Mr. President,

8 please. I'm sorry to already interrupt my colleague, but I failed to

9 receive the interpretation. I don't know whether it's a problem with my

10 headphones, with my system, or whether there is a problem in the booth.

11 There was just a blank in the interpretation in French which every now and

12 then I do follow. Thank you for checking.

13 JUDGE POCAR: Can we check the matter and see whether the

14 interpretation is working properly.

15 It's okay now? Okay.

16 MR. PILETTA-ZANIN: [Interpretation] Fine. Thank you.

17 MS. JARVIS: Thank you, Your Honour.

18 I was just outlining that the fourth legal issue I'll address is

19 the relationship between indiscriminate, direct and disproportionate

20 attacks which is raised by Your Honours in a question that has been

21 addressed to the Defence.

22 Fifth and finally, I'll explain why there was no error in the

23 majority clarifying the elements of the crime of torture and in this

24 respect, modifying the elements that the Prosecution had proposed at

25 trial.

Page 111

1 But before I move on --

2 MR. PILETTA-ZANIN: [Interpretation] Mr. President, I really am

3 sorry, but I'm trying to understand what is happening now.

4 Crime of torture is mentioned. As far as I know, General Galic

5 was never prosecuted for the crime of torture, so is it a problem in the

6 transcript, a mistake, or are things being said that do not exist? I do

7 not agree. These proceedings should not be biased. If we talk about

8 terror, let's speak about terror. But let's not add to the misery of

9 General Galic a new crime which he was never prosecuted for.

10 So sorry for intervening, but I'm trying to follow what's

11 happening in this courtroom. Thank you.

12 MS. JARVIS: I apologise, Your Honour, I clearly misspoke. I had

13 meant to say the crime of terror, not torture. I apologise.

14 JUDGE POCAR: Please go on.

15 MS. JARVIS: Before I move on to discuss these legal issues, a

16 brief factual context. The legal issues in this case are important

17 because of the factual context in which they arise, because of the

18 experiences of the civilian men, women and children of Sarajevo when

19 General Galic commanded the SRK forces.

20 What happened to the civilians of Sarajevo was something quite

21 distinct and quite apart from the suffering and distress that inevitably

22 accompanies armed conflict. The civilians of Sarajevo, in ABiH-controlled

23 areas, were relentlessly and notoriously pursued as targets of the SRK

24 shelling and sniping campaign. As one witness, an ABiH soldier, put it at

25 paragraph 586 of the judgement, he felt safer at the front line in

Page 112

1 Sarajevo than anywhere else.

2 I refer Your Honours to the judgement at paragraphs 584 to 585,

3 finding that civilians were targeted during funerals, in ambulances, on

4 trams, they were targeted during cease-fires, they were targeted when

5 fetching water. They were targeted while shopping in marketplaces.

6 Children were targeted in schools, playing outside, riding bicycles.

7 Why were civilians targeted? Well, the siege of Sarajevo was

8 witnessed by many international military and other observers who came

9 before the Trial Chamber, one after another, to tell exactly what they had

10 seen. These were neutral and experienced observers who knew exactly what

11 they were witnessing. For all of these observers, caught within the

12 amphitheatre of horror that Sarajevo became during the war, the

13 deliberateness of the terror was palpable. Civilians were targeted

14 because the SRK was carrying out psychological warfare on civilians to

15 force a capitulation of the enemy.

16 I'll play now for the Chamber some short extracts of the

17 testimonies of six such witnesses. The corresponding transcript pages to

18 the clips that I'll play for you today have been collated and copies have

19 been made available for Your Honours, for the Defence and, for the Legal

20 Officers.

21 Even just a small sampling much these testimonies that I'll play

22 for you now ring out this constant refrain.

23 [Videotape played]

24 "One would very often get the impression that these people, you

25 know, the pattern of these sniper incidents were people having, you know,

Page 113

1 a fairly morbid kind of fun with this. People would be frightened, you

2 know. They would wait for somebody to cross a street, fire at the first

3 people, not fire at the second person, fire close to people to make them

4 turn around and run back, fire at water cans that were sitting in an

5 intersection that had been dropped by someone, and then people would go

6 out, try to hit -- you know, try to pick up the water can. You know,

7 there would be bullets impacting around it or in it."

8 "The impression that we gained was that the purpose of the

9 shelling was in order to intimidate, firstly, the population of Sarajevo

10 in general, and to break their will to resist, and secondly, in order to

11 intimidate the Presidency of Alija Izetbegovic and break their will to

12 resist."

13 "I am personally certain of that, and that it was for

14 well-calculated psychological reasons, to have a psychological impact on

15 the local populace."

16 "Could you tell us a little more of what that psychological impact

17 objective was, in your opinion?"

18 "To terrorise the local civilians and Muslim forces to make them

19 on edge all the time, causing distress, lack of sleep, lack of will,

20 especially, to carry on, lack of support for the Muslim cause, if I may

21 use that, a standard psychological response in the sense of psychological

22 warfare. On the civilian side, the impact of the psychological warfare

23 application was working. They were indeed terrorised and on edge.

24 "And in my view, the direct follow-on, the logical follow-on is

25 that they were using it as an instrument of terror against the opposing

Page 114

1 side."

2 "As far as the local population is concerned, the objective was

3 clear, is to create a climate of terror, an atmosphere of terror, in the

4 centre of the city, to make people feel on the edge."

5 "The objectives were basically civilians in order to put pressure

6 on the population."

7 I'll turn, then, Your Honours, to the first issue in my arguments

8 today and that is that the majority was right to convict General Galic for

9 the crime of terror under Article 3 of Statute based on a prohibition set

10 out in a clearly applicable international agreement.

11 As I've mentioned, the basis for General Galic's conviction for

12 the crime of terror was the special agreement entered into by the parties

13 to the conflict in Bosnia on 22 May 1992. The Chamber found that it was

14 unnecessary for it to inquire separately into the existence of the crime

15 of terror as part of customary international law.

16 Your Honours have asked the Prosecution to explain how Article 3

17 of this Tribunal's Statute can extend to such international agreements in

18 light of comments that the Secretary-General made in his report on the

19 Rwanda Tribunal. In particular, Your Honours have noted that in this

20 report on the Rwanda Tribunal, the Secretary-General stated that the

21 Security Council has elected to take a more expansive approach to the

22 choice of applicable law than the one underlying the Statute of the

23 Yugoslav Tribunal and included within the subject matter jurisdiction of

24 the Rwanda Tribunal, international instruments regardless of whether they

25 were part of customary international law.

Page 115

1 How does the Prosecution reconcile this statement with its

2 position on Article 3 of this Tribunal? The short answer is that to the

3 extent that the Secretary-General's statement in the ICTR report suggests

4 that the jurisdiction of this Tribunal doesn't extend to such treaty

5 provisions, it is not determinative because it is inconsistent with the

6 plain wording of the Statute, also the comments of the Member States of

7 the Security Council at the time that the Statute was adopted, and it's

8 inconsistent with the object and purpose behind the establishment of this

9 Tribunal.

10 The Appeals Chamber has already reached similar conclusions in the

11 Tadic jurisdiction Appeal judgement and the Kordic Appeal judgement. I'll

12 briefly address these three issues, or subpoints, as I will refer to them.

13 My first subpoint, the plain meaning of Article 3 of the Statute.

14 This is the first step in interpreting the scope of Article 3, to look at

15 the plain meaning of the words in that Article in light of the context of

16 the Statute as a whole. This approach to statutory interpretation has

17 been confirmed by the Appeals Chamber in several cases. And just by way

18 of example, the Tadic Appeal judgement at paragraph 282; and the Celebici

19 Appeal judgement at paragraph 68.

20 What does the plain wording of Article 3 reveal? As the Tadic

21 jurisdiction Appeals Chamber concluded at paragraph 87, the plain wording

22 of Article 3 reveals that it covers a broad category of offences, namely

23 all violations of the laws or customs of war and that the enumeration set

24 out in Article 3 is illustrative, not exhaustive.

25 Judge Sidhwa, at paragraph 113 of his separate opinion in the

Page 116

1 Tadic jurisdiction appeal decision, expressed the view that the ordinary

2 meaning of the term "laws of war" are those set down in treaty provisions

3 or other written documents and that the customs of war equate to customary

4 international law drawn from state practice and opinio juris. Certainly

5 the term "violations of the laws or customs of war" on its shorthand

6 version, "violation of the laws of war," is generally understood as

7 extending to the laws of war laid down in both in custom and treaty. For

8 example, the military manual of Great Britain, which is set out in Leslie

9 Green's book and contained in our supplementary book of authorities, this

10 military manual states that: "The laws of war consist, partly of

11 customary rules which have grown up in practice, and partly of written

12 rules, that is to say, rules which have expressly been agreed upon by

13 governments in international treaties and conventions."

14 Similarly, the Encyclopaedia of Public and International Law, the

15 Max Planck Institute published under their auspices, this is also in our

16 book of authorities states that: "... the laws of war derive first and

17 foremost from custom ... and ... treaties."

18 The Kordic appeals Chamber found further support for the

19 conclusion that Article 3 includes criminal prohibitions set out in treaty

20 provisions in the wording of Article 1 of the Statute. At paragraph 43,

21 the Kordic Appeals Chamber emphasised that the jurisdiction of this

22 Tribunal extends to all serious violations of international humanitarian

23 law committed in the territory of the former Yugoslavia.

24 In sum, then, as to my first subpoint, the plain wording of

25 Article 3 viewed in the context of the Statute as a whole is broad enough

Page 117

1 to extend to all serious violations of the laws or customs of war

2 regardless of their source, whether that's treaty law or customary law.

3 My second subpoint is that Security Council records confirm that

4 member states adopting the Statute intended that Article 3 would cover

5 international agreements.

6 The case law of this Tribunal has recognised that, in addition to

7 the plain wording of the Statute, the interpretive statements of states at

8 the time the Statute was adopted can serve as a supplementary means of

9 interpretation. Even if there was any confusion about the plain wording

10 of Article 3, the record of the comments made by members of the Security

11 Council when they adopted the Statute puts it beyond any doubt that

12 applicable treaty provisions were intended to be covered. In fact, the

13 members of the Security Council were at some pains to make this expressly

14 clear.

15 Why was it necessary for the members to emphasise this point in

16 their comments? It was because the Secretary-General's 3 May 1993 report

17 in which he set out his proposal for the Statute of the Tribunal stated

18 that in order to comply with the principle of nullum crimen sine lege the

19 Statute should extend only to violations of humanitarian law that are

20 recognised as customary law.

21 A few weeks after the Secretary-General submitted this report, the

22 Security Council met to discuss the report and they adopted the Statute.

23 They then made statements explaining their vote, and these statements

24 clarified that the Member States understood Article 3 to specifically

25 include treaty provisions binding the parties in the former Yugoslavia.

Page 118

1 Consider, in particular, Your Honours the statement made by the

2 delegation from the United States of America which is contained in the

3 verbatim record of the Security Council proceedings on that day and set

4 out in our supplementary book of authorities. The delegate emphasised

5 that she wanted to clarify clearly and completely the understandings that

6 underpinned her government's support for the adoption of the Statute. She

7 emphasised that while the Security Council had adopted the Statute as

8 proposed by the Secretary-General, the report raised several technical

9 issues that the US wanted to address through interpretive statements. The

10 delegate underscored her view that the -- underscored the US government's

11 view that their position on these clarifications were shared by other

12 members of the council and, in particular, I quote, she said: "Firstly,

13 it is understood that the laws or customs of war referred to in Article 3

14 include all obligations under humanitarian law agreements in force in the

15 territory of the former Yugoslavia at the time the acts were committed,

16 including common Article 3 of the 1949 Geneva Conventions and the 1977

17 Additional Protocols."

18 No delegation contradicted these statements by the US government.

19 Two other countries, the United Kingdom and France, both also made express

20 statements clarifying that Article 3 must extend to applicable

21 international agreements.

22 The Appeals Chamber has reviewed these statements by members of

23 the Security Council previously and has come to precisely this conclusion.

24 I point Your Honours to the Tadic jurisdiction appeal decision,

25 paragraphs 75, 88 and 143, and the Kordic appeal judgement at

Page 119

1 paragraph 43.

2 The Prosecution acknowledges that the case law of this Tribunal

3 has accepted that the report of the Secretary-General had been consulted

4 to provide guidance when clarifying the Statute. However, the Prosecution

5 submits that where the Member States of the Security Council expressly

6 departed from comments made by the Secretary-General, their interpretive

7 statements must prevail.

8 In his report on the Rwanda Tribunal, it would have been correct

9 for the Secretary-General to state that he had proposed a broader approach

10 for the Rwanda Tribunal than the one that he had proposed for this

11 Tribunal. But it was not the case that the Security Council had taken a

12 broader approach. The Security Council took fundamentally the same

13 approach for both Tribunals.

14 The Prosecution agrees, though, that the concern underlying the

15 Secretary-General's proposal to limit the jurisdiction of this Tribunal to

16 customary law norms is a valid one. Article 3 cannot be interpreted in a

17 way that would violate fundamental principles of justice, such as the

18 principle of nullum crimen sine lege. But as this Chamber has held in

19 both the Tadic jurisdiction Appeal Judgments and the Kordic Appeal

20 judgement, accepting clearly applicable treaty provisions as a

21 jurisdictional basis for Article 3 fully complies with nullum crimen

22 concerns. Indeed, as the Appeals Chamber noted, at paragraph 41 of the

23 Ojdanic joint criminal enterprise appeal decision of 21 May 2003, written

24 law will often be more accessible to an accused person than customary law.

25 Nullum crimen concerns don't warrant the exclusion of written law.

Page 120

1 I turn to my third subpoint and that is a very brief one, namely

2 that to exclude clearly applicable treaty provisions would frustrate the

3 intention of the Security Council that Article 3 be read broadly and it

4 would -- and to thereby impunity or for all serious violations of

5 applicable humanitarian law norms.

6 The fundamental preoccupation underlying the statements of

7 virtually all of the Security Council Member States when they adopted the

8 Statute was the catastrophic consequences of according impunity to persons

9 who have violated international humanitarian law. These statements are

10 amply reflected in the verbatim record which, as I've mentioned, is

11 included as part of our supplementary book of authorities.

12 In conclusion to my argument on the scope of Article 3 of the

13 Statute, the Appeals Chamber has already repeatedly confirmed that clearly

14 applicable treaty provisions are covered by Article 3. To depart from

15 these holdings would require cogent reasons.

16 The comment of the Secretary-General in the context of the Rwanda

17 statute does not provide cogent reasons. The Appeals Chamber in Tadic

18 jurisdiction and in Kordic fully took into account that the

19 Secretary-General's view was that the Tribunal's jurisdiction should be

20 limited to customary law norms. The Appeals Chamber rightly found on both

21 those occasions that this statement was not determinative and that the

22 plain wording of the Statute and the understanding and the comments of the

23 Security Council Member States should prevail. The Secretary-General's

24 reiteration of his view in the ICTR report does not add anything new or

25 change the conclusion that should be reached.

Page 121

1 I'll turn now, Your Honours, to the second legal issue in my

2 submissions today, and that is the customary law status of the prohibition

3 of terror.

4 THE INTERPRETER: Could the speaker slow down, please?

5 MS. JARVIS: I apologise to the interpreters.

6 The Prosecution has made an alternative argument that, in any

7 event, the crime of terror is reflected as part of customary international

8 law. And our full argument on that is set our out in our response brief,

9 paragraphs 7.27 to 6.61. We primarily rest on those submissions, and I

10 won't repeat them before Your Honours today. But I do want to just

11 briefly update the Chamber on one development since the brief was written,

12 and that is the publication in 2005 of the ICRC study on customary

13 international law which provides further support for the Prosecution's

14 submission that the crime of terror is established in customary

15 international law.

16 Consistent with the approach taken by the Appeals Chamber in the

17 Hadzihasanovic Rule 98 bis decision on 11 March 2005, the primary value of

18 the ICRC study is the state practice and opinio juris cited rather than

19 the formulation of the customary rules themselves by the authors of the

20 study.

21 In the Hadzihasanovic Rule 98 bis decision, the Appeals Chamber

22 drew support for the customary status of the crime of wanton destruction

23 not justified by military necessity from the state practice, namely the

24 military manuals and national legislation, that were cited in the ICRC

25 study.

Page 122

1 The ICRC study also sets out military manuals and national

2 criminal codes that reflect the prohibition of terror. That's contained

3 in volume 1, pages 9 to 10, or a summary of those, aspects of state

4 practice is contained on those pages and set out in our supplementary book

5 of authorities. We submit that this state practice reinforces the

6 practice already cited in the Prosecution's response brief and reinforces

7 the conclusion that the crime of terror is part of customary international

8 law.

9 The third issue in my submissions today is to explain that the

10 crime of terror can be committed through indiscriminate attacks on

11 civilians. Your Honours have addressed a question to the Prosecution on

12 this issue and, in particular, you've asked us to clarify whether we

13 believe that indiscriminate attacks can form part of the crime of terror

14 and, if so, to provide support for our position.

15 The short answer to this question is that the Prosecution's

16 position is that indiscriminate attacks can form part of the crime of

17 terror. We have expressly taken that position in our response brief at

18 paragraphs 7.81 to 7.82 and we maintain that position. The brief also

19 sets out a short justification for this at paragraph 7.82. We said: "The

20 specific intent for the crime of terror will still be proved if it is

21 established that the decision to employ indiscriminate methods was

22 motivated by the primary objective of spreading terror."

23 Let me assist Your Honours further with a more detailed

24 explanation of what we mean by this and the legal reasoning and authority

25 on which it's based.

Page 123

1 The majority convicted General Galic of the crime of terror based

2 on what it termed "direct and indiscriminate attacks." So, for example,

3 at paragraph 589 of the trial judgement the Chamber concluded that the

4 majority concluded that: "The evidence ... conclusively establishes that

5 the pattern of fire throughout the city of Sarajevo was that of

6 indiscriminate or direct fire at civilians ... not that of fire where

7 civilians were hit accidentally."

8 Another similar finding is found at paragraph 591.

9 Nonetheless, the majority still determined that the aim of the

10 campaign was to terrorise civilians. Their approach was correct and to

11 understand why, consider what the -- what the Trial Chamber said or meant

12 when it said that the civilians in Sarajevo were targeted with

13 indiscriminate fire.

14 Of the scheduled incidents, three of the shelling cases were

15 labelled as indiscriminate. These were numbers 1, 3 and 4. I'll start by

16 considering incidents 3 and 4 together.

17 Shelling incident number 3, which is found at paragraphs 331 and

18 following of the trial judgement, was an attack in which the SRK fired

19 three mortar shells into a residential neighbourhood of Sarajevo known as

20 Alipasino Polje. Six children who had taken advantage of a lull in

21 hostilities to play in the street outside their apartment buildings were

22 killed, and other civilians, including children, were injured.

23 Shelling incident number 4 at paragraphs 398 and following, was

24 again an attack with three mortar shells which struck a residential

25 neighbourhood in Dobrinja killing at least eight civilians, including a

Page 124

1 child, and injuring at least 18, including two children. During this

2 attack, a playground that was being used by civilians for trading food and

3 other civilian goods was hit.

4 The methodology of the Trial Chamber in examining both of these

5 incidents was similar. The Trial Chamber first determined that the SRK

6 was the source of the fire. The Trial Chamber then ruled out any

7 reasonable possibility that the fire was aimed at legitimate military

8 objectives that may have been in the area. So, for example, the Trial

9 Chamber noted that successive shells fired in these attacks did not fall

10 any closer to the alleged military targets and that the shelling stopped

11 despite the fact that no damage was in fact done to the alleged military

12 targets.

13 The Trial Chamber came to identically worded conclusions for each

14 of these attacks, namely that they were: "At the very least

15 indiscriminate as to target (which nevertheless was primarily if not

16 entirely a residential neighbourhood) and was carried out recklessly,

17 resulting in civilian casualties."

18 That finding is found at paragraphs 345 and 410 of the trial

19 judgement.

20 What did the Chamber mean when it used the words "indiscriminate

21 and reckless" in relation to these attacks? Well, the Trial Chamber had

22 ruled out any possibility that the attacks were directed towards a

23 legitimate military objective. The Trial Chamber also fell short of

24 finding that the particular civilian victims were deliberately targeted.

25 Against this back-drop, the characterisation of the attacks as

Page 125

1 indiscriminate as to target means that they were, at the very least,

2 aimless attacks, in the sense that the shells were fired into residential

3 areas without directing them at any particular targets at all.

4 Why did the Trial Chamber describe them as reckless? Even if the

5 civilian -- particular civilian death or injury that resulted was not the

6 deliberate aim of the attack, they were certainly carried out knowing that

7 it was likely civilian death and injury would result.

8 Is there any inherent contradiction between finding that -- in

9 finding that these indiscriminate attacks were motivated by the primary

10 purpose of spreading terror? The answer to that question, Your Honours,

11 must be no. Fundamentally, whether these indiscriminate attacks were

12 carried out with the primary purpose of spreading terror is a question of

13 fact, not of law. In this case, the evidentiary record confirms that it

14 was the indiscriminate nature of many of the attacks in Sarajevo that

15 reinforced the conclusion that the purpose behind the SRK's conduct was to

16 terrify the civilian population.

17 Why would a military force fire shells into a --

18 [Prosecution counsel confer]


20 MR. PILETTA-ZANIN: [Interpretation] Mr. President, sorry for

21 interrupting, but I -- I always control the French interpretation. There

22 was an error in the French interpretation. It was stated that it was a

23 matter of law and not of fact, whereas the contrary was actually stated by

24 the speaker. I'd like to point that out now, because later on it will be

25 too late.

Page 126

1 JUDGE POCAR: [Previous translation continues] ... note of that.

2 Thank you.

3 MS. JARVIS: I thank you my colleague from the Defence. I did

4 indeed state it was a question of fact, not of law, and I also pointed out

5 that it was the indiscriminate nature of the attacks in Sarajevo that

6 underscored the Trial Chamber's -- or the majority's factual conclusion

7 that the primary purpose was, in fact, was to spread terror.

8 Why would -- Your Honours, why would a military force fire shells

9 into a predominantly residential area of Sarajevo with complete abandon as

10 to where the shells would land and with complete disregard as to whether

11 civilians were killed or injured as a result?

12 The reason is because it did not matter what was hit. The primary

13 purpose of the attack was to terrify the civilian population, and in that

14 objective, the SRK succeeded.

15 As the majority found at paragraph 593 of the judgement, the

16 fundamental objective of the SRK campaign was not to wipe out the civilian

17 population but to terrify them by sending the very clear message that no

18 Sarajevo civilian was safe anywhere at any time of day or night.

19 Indiscriminate attacks were a particularly effective method of achieving

20 that objective as several witnesses testified, and I've extracted

21 fragments of their testimony as set out in the trial judgement on some

22 slides so that Your Honour can follow while I'm proceeding.

23 I do apologise, Your Honour, we are having some technical

24 difficulties today. I have prepared a number of slides that we have not

25 been able to broadcast, so I hope that the AV people may be able to assist

Page 127

1 us with fixing that problem.

2 Okay. I understand that you can, in fact, see the slide that I

3 prepared. I'm sorry for the interruption.

4 So Van Lynden, a Dutch journalist, trial judgement, paragraph

5 575. He said that sporadic fire here and there did not serve any military

6 goal, but the effect was to cause fear with anyone because people feared

7 that whenever you went outside your house, you were in danger; you were

8 never safe.

9 Henneberry, senior UN military observer, trial judgement,

10 paragraph 569. The shelling was designed in a manner that kept people

11 running from building to building on their toes.

12 Harding, UN military observer, trial judgement, paragraph 570.

13 Shells and artillery could land virtually anywhere in the city. This way

14 of shelling achieved maximum surprise and increased the psychological

15 effects on the civilians of the city with a minimum of military effort.

16 Witness Y, trial judgement, paragraph 571. The objective that the

17 SRK forces pursued was to make every inhabitant of Sarajevo feel that

18 nobody was sheltered or protected from the shooting and that the shooting

19 was not aimed at military objectives but rather to increase the

20 helplessness of the population and was aimed at cracking them and to make

21 them collapse, nervously speaking.

22 A similar analysis applies to the shelling incident number 1, the

23 Dobrinja football game attack, which the Trial Chamber also regarded as an

24 indiscriminate attack. The notion that an indiscriminate shelling

25 campaign may amount to unlawful terrorisation of the civilian population

Page 128

1 finds support in General Assembly Resolution 53/164 on the situation of

2 human rights in Kosevo adopted in February 1999. The General Assembly

3 expressed grave concern about the systematic terrorisation of ethnic

4 Albanians as demonstrated in the many reports of, among other things,

5 indiscriminate and widespread shelling. The ICRC customary law study,

6 volume 1, page 11, cites this resolution as an example of where

7 indiscriminate and widespread shelling has been characterised as violating

8 the prohibition against terror.

9 In conclusion to my submissions on indiscriminate attacks and the

10 crime of terror, there is no inherent inconsistency between finding that

11 an attack which is indiscriminate in its methodology is also motivated by

12 the primary purpose of spreading terror. The underlying objective or

13 purpose of an attack that is indiscriminate in methodology may, in fact,

14 be a civilian one, and the facts of this case provide a very good example

15 of exactly that.

16 I turn now to the fourth legal issue in my submissions today, and

17 that is the relationship between indiscriminate, disproportionate and

18 direct attacks, and I will respond to this issue in light of the response

19 that the Defence has given to Your Honours question on this topic.

20 JUDGE POCAR: Ms. Jarvis, we have five minutes to go, if you can

21 deal with your point in five minutes, I will not stop you. Otherwise, we

22 will break now.

23 MS. JARVIS: I think I should be able to deal with it in five

24 minutes, Your Honour, and then I will have just a very brief conclusory

25 part to my submissions after the break.

Page 129

1 JUDGE POCAR: So then go on, please.

2 MS. JARVIS: Yes.

3 The short answer to this question is that the Trial Chamber did

4 not characterise any of the attacks in this case as disproportionate. The

5 Trial Chamber made a comment that the Dobrinja football game attack, even

6 if it had been aimed at soldiers who were playing in the game, would have

7 been disproportionate, but its operative finding was that the SRK did not

8 know that the soldiers were there and that the attack consequently could

9 not have been aimed at these soldiers.

10 It held that the attack was indiscriminate.

11 As to the attacks characterised as indiscriminate, the Chamber

12 when applying the facts to the law, used the label "indiscriminate" and

13 did not refer to them as direct attacks. And I've already referred Your

14 Honours to the findings at paragraph 589 and 591. There is no reversible

15 error in this respect.

16 The Appeals Chamber's question does raise, though, the more

17 theoretical issue of the relationship between the various terms that are

18 used for unlawful attacks, direct attacks, making civilians the object of

19 attack, indiscriminate attacks and disproportionate attacks. This is

20 particularly so in light of the Trial Chamber's finding at paragraphs 57

21 and 60 of the judgement, where, in setting out the applicable law, the

22 Chamber recognised that indiscriminate and disproportionate attacks may

23 qualify as direct attacks.

24 The Prosecution's submission is that the Trial Chamber was right

25 in this part of its legal analysis. Indiscriminate and disproportionate

Page 130

1 attacks can be equated with making civilians the object of attack or

2 direct attacks. Direct attacks include all attacks that violate the

3 principle of distinction, because either the target selected is not

4 limited to a military objective or because the attack is carried out using

5 a methodology that is incapable of distinguishing between military

6 objectives and civilians to the extent required by the principle of

7 proportionality.

8 Consider, Your Honours, the following examples. The deliberate

9 sniping of a civilian on the streets of Sarajevo. This is an attack in

10 which the target selected is civilian and, as a result, it violates the

11 principle of distinction and constitutes a direct attack on a civilian.

12 The second example, lobbing shells randomly into the city of Sarajevo

13 without regard as to what target is hit.

14 As I've previously explained, this kind of attack is

15 indiscriminate in the sense that the methodology of the attack is

16 incapable of drawing a distinction between military and civilian

17 objectives as required, for example, by Article 51(4) of Protocol I

18 dealing with indiscriminate attacks. It violates the principle that only

19 legitimate military objectives can be selected as the target of an attack

20 and it is properly regarded as a direct attack. It would have been open

21 to the Trial Chamber in this case to use that label when it applied the

22 facts of this case to the law.

23 My third example is where a party to a conflict might select a

24 legitimate military target in conformity with the principle of distinction

25 but aim to neutralise it using a methodology that cannot distinguish

Page 131

1 between military and civilian targets as required by the principle of

2 proportionality.

3 So, for example, dropping a bomb on a village in order to target a

4 soldier who is home on leave. This attack is indiscriminate in

5 methodology. In particular, it violates the principle of proportionality

6 and, because of that, the principle of distinction. Proceeding with such

7 an attack, in knowledge that civilian casualties will be excessive in

8 relation to the direct and concrete military objective accrued, can

9 properly be regarded in substance as an attack that is directed against

10 civilians.

11 Incidental civilian damage ceases to be incidental, or secondary,

12 if you like, if the rule of proportionality is breached.

13 This approach finds support in several sources. For example, the

14 ICRC study on customary international law, volume 1, at page 601, states

15 that: "Both indiscriminate and disproportionate attacks can be likened to

16 attacks on civilians if the perpetrator was aware that this would be the

17 effect of the attack in the ordinary course of events."

18 I also refer Your Honours to the decision in the International

19 Court of Justice in the Nuclear Weapons Advisory Opinion, paragraph 78,

20 which is also cited in the trial judgement at footnote 101. With regard

21 to the obligation of states not to make civilians the object of attack,

22 the ICJ stated that: "They must consequently never use weapons that are

23 incapable of distinguishing between military and civilian targets.

24 Similar reasoning was set out by Judge Higgins in her dissenting

25 opinion in that case at paragraph 22, and these references are all in our

Page 132

1 supplementary book of authorities.

2 Similarly, Louise Doswald-Beck, in her 1997 article on the ICJ

3 Advisory Opinion, in our book of authorities, concludes from the ICJ's

4 reasoning that: "The prohibition against deliberately attacking civilians

5 found in Article 13 of Additional Protocol II (which is in identical terms

6 to Article 51(2) of Protocol I) automatically means that indiscriminate

7 weapons must not be used in non-international armed conflicts."

8 Article 13 of Protocol II includes only the prohibition on making

9 civilians the object of attack. It does not include the express

10 references to indiscriminate or disproportionate attacks. Consistent with

11 the view expressed by Louise Doswald-Beck, the ICRC commentary to

12 Article 13 of Protocol II at paragraph 4764 states that this nevertheless

13 does not reduce the degree of protection accorded to civilians in internal

14 armed conflicts.

15 I also refer Your Honours to Bothe and Partsch who take a similar

16 position, and that's contained in our supplementary book of authorities.

17 In conclusion to my submissions on this issue, the Trial Chamber

18 did not, when it applied the facts to the law in this case, equate

19 indiscriminate attacks on civilians with direct attacks, but it would have

20 been open to the Trial Chamber to do so, as indeed the Chamber had

21 recognised earlier in its legal discussion in the judgement.

22 If it is convenient, Your Honours, I'll rest my submissions there

23 for the moment and finish when we return from the break.

24 JUDGE POCAR: I thank you.

25 We will break now and we will reconvene at 2.15 p.m.

Page 133

1 --- Luncheon recess taken at 12.33 p.m.

2 --- On resuming at 2.17 p.m.

3 JUDGE POCAR: Good afternoon. We resume the hearing on this

4 appeal. I will give the floor to the Prosecution to continue their

5 response. They have 45 minutes from now to conclude their response.

6 You have the floor.

7 MS. JARVIS: Thank you, Your Honours.

8 Well, Your Honours will be pleased to hear that I have reached the

9 fifth and final issue that I wanted to address before you today, and that

10 is that there was no error in the Trial Chamber clarifying the elements of

11 torture and in this respect modifying them from those proposed by the

12 Prosecution at trial.

13 Full submissions on this issue are set out in our response brief,

14 but to further assist in explaining why this complaint that the Defence

15 have raised is without foundation, I have prepared a chart which compares

16 the crime of terror, the elements proposed by the Prosecution with those

17 found by the Chamber, and I'll ask that that be put up on the screen now

18 for Your Honours to view.

19 JUDGE POCAR: We have it.

20 MS. JARVIS: Okay, thank you.

21 You can see from this chart, Your Honours, that in fact the

22 elements proposed by the Prosecution and those found by the Chamber are

23 substantially similar. The main difference stems from the fact that

24 whereas the Prosecution submitted elements for the crime of terror based

25 on the full breadth of the crime of terror, and by that I mean both acts

Page 134

1 and threats of violence, the Chamber found that it only had to pronounce

2 on a more limited situation where acts of violence have resulted in

3 civilian death and injury, which is what arose on the facts of this case.

4 So with respect to element 1 set out in the chart, the Prosecution

5 submitted acts or threats of violence, the Trial Chamber limited its

6 consideration to acts of violence.

7 Element 2 is the result requirement for unlawful attacks. This

8 stems from Article 85 of Protocol I which mandates that to be a criminal

9 offence, the unlawful attack must result in death or serious injury to

10 body or health. When it came to the limited subset of the crime of terror

11 before it, the Chamber found that the result requirement was satisfied by

12 proof of civilian death or injury and that it was not necessary to look

13 separately at whether terror was actually inflicted.

14 There is no valid complaint about the Trial Chamber's conclusion

15 that in cases where the result requirement for criminalisation is met

16 through proof of civilian death or injury, it was not necessary to look

17 separately at whether there was also actual infliction of terror. Most

18 importantly, the essence of the crime of terror and what justifies the

19 application of the separate label of terror over and above other types of

20 unlawful attacks is the specific intent requirement, the primary purpose

21 of spreading terror, and in this the elements proposed by the Prosecution

22 and accepted by the Chamber are identical.

23 To conclude my submissions, when General Galic commanded his SRK

24 forces in Sarajevo, he could not have genuinely believed that attacking

25 civilians, causing death and injury in order to terrify them and force a

Page 135

1 capitulation of the enemy was a legitimate tactic of war that could not be

2 subject to criminal sanction.

3 States have long condemned this sort of terrorisation, and the

4 parties to the conflict in Bosnia had specifically agreed that it was

5 impermissible and subject to criminal sanction.

6 What is quite believable, though, is that General Galic, carrying

7 out this campaign of terror, thought that he would never be prosecuted for

8 this offence, that he would enjoy the same impunity that has undermined

9 the implementation of humanitarian law for so long.

10 The very reason for this Tribunal's establishment was to change

11 all of that. The Trial Chamber was right to label this psychological

12 warfare against the civilians of Sarajevo as the crime of terror and to

13 hold General Galic accountable for the role that he played in it.

14 That concludes my submissions, Your Honour, and unless there are

15 any questions that you would like me to address at this point, I'll hand

16 the podium over to my colleague, Mr. Ierace, who is going to address you

17 in relation to the principles of distinction and proportionality and the

18 Trial Chamber's conclusions on that and its evaluation of the evidence.

19 He'll also answer Your Honours' question as to return fire on the

20 hospital.

21 JUDGE POCAR: I thank you. May I turn to my colleagues if they

22 want to take --

23 JUDGE MERON: [Microphone not activated].

24 THE INTERPRETER: Microphone, please, Your Honour.

25 THE FRENCH INTERPRETER: Microphone, Your Honour, please.

Page 136

1 JUDGE MERON: Ms. Jarvis, before the break you tried to make the

2 equivalent between indiscriminate and disproportionate attacks on the one

3 hand with direct attacks on civilians on the other hand. My question to

4 you is this: To establish the crime of terror, do we need to equate

5 indiscriminate or disproportionate attacks with direct attacks against

6 civilians? This is my question to you.

7 MS. JARVIS: Your Honour, the answer to that question is no. It

8 is not necessary to establish the crime of terror to equate them. We say

9 that the equation of the two is correct, as a matter of law, but even if

10 Your Honours were to be against us on that point, that would not preclude

11 a finding on the facts of this case that indiscriminate attacks, however

12 qualified, could form part of the crime of terror.

13 JUDGE MERON: Thank you.

14 JUDGE POCAR: Judge Schomburg.

15 JUDGE SCHOMBURG: Thank you, Mr. President. One short and one

16 slightly longer question.

17 First of all, you mentioned a series of attacks directed on

18 civilians. Where is the threshold and what is the distinguishing element,

19 because it seems to be hardly conceivable to carry out such a series of

20 direct attacks on civilians without the purpose to spread terror.

21 Secondly, the more serious question is: What about the

22 penalisation? In Article 50 (1), (2), it only reads that these acts are

23 prohibited. And in a long chapter in the judgement there are references

24 made to an agreement; I think it was 22nd of May. Do you think at all

25 that it is necessary to refer to this agreement? You made the argument

Page 137

1 that first treaty law is applicable, also customary international law

2 foresees the penalisation of such a conduct, but isn't it true that also

3 the law of former Yugoslavia already foresaw, as it is stated in the

4 judgement itself, that such -- the purpose to spread terror amongst

5 civilians is already penalised in Yugoslavia, and this is a clear

6 indication that Yugoslavia, having ratified the Geneva Protocols,

7 including the first Additional Protocol, that they have implemented, as

8 such, the Geneva Conventions, and therefore this agreement often quoted in

9 the judgement is nothing but a declaration of the awareness of these -- of

10 the participants having signed this document, that it is penalised in the

11 area in former Yugoslavia and then that they are bound by this

12 penalisation? And you mentioned, to conclude the question, the subject

13 matter, jurisdiction in the report of Security Council in the beginning,

14 also referring to domestic law in para 36, and isn't it true that this

15 entire chapter doesn't create any kind of hierarchy between treaty law,

16 customary international law, domestic law, but that what is even

17 underlined in paragraph 34, that the rationale of this -- these paragraphs

18 is that there is no crime without law?

19 So, in conclusion, how is your approach to go one step further,

20 that it's not only prohibited but that it's penalised?

21 MS. JARVIS: Thank you, Your Honour. I will respond to the second

22 question first, if I may, and then I apologise but I may need to seek a

23 clarification of the first question, because I'm not sure that I

24 understood entirely what it is that Your Honour would most like me to

25 address, so I will ask for clarification of that.

Page 138

1 But as to your second question which, as I understand it, relates

2 to how do we make our way through this maze of convention, special

3 agreement, customary law on the point of the criminalisation of the crime

4 of terror in particular, Your Honour, we submit that the way the Trial

5 Chamber approached this matter was correct. They looked first and

6 foremost at the 22nd of May agreement, which was a special agreement

7 entered into by the parties to the conflict in Bosnia as envisaged by

8 common Article 3 to the Geneva Conventions. The reason why it is

9 important to look at the effect of that document is because the parties

10 agreed to apply the provisions of Protocol I of the Geneva Conventions,

11 regardless of the classification of the conflict. So by virtue of the 22

12 May agreement, the parties made it clear that they were going to comply

13 with the rules applicable to international armed conflicts, regardless of

14 the status of the conflict in Bosnia. So that was what justified the

15 Trial Chamber's conclusion that it wasn't necessary to characterise the

16 conflict in this case because the applicable norms are the same

17 regardless.

18 In terms of the validity of domestic law and the way that that

19 fits into this equation, the Appeals Chamber has of course noted that it

20 does not have jurisdiction over domestic law per se. That's not to say

21 that domestic law is irrelevant, as I think it was the Appeals Chamber in

22 the Ojdanic joint criminal enterprise appeal decision stated that domestic

23 law, even if not an independent source of law, is nevertheless of

24 assistance in assessing the compliance with the principle of nullum crimen

25 because it may serve to make a particular prohibition accessible to an

Page 139

1 accused person. So we say it is relevant in that regard. And it is also

2 relevant, as Your Honour rightly points out, because the 22nd May

3 agreement specifically applying Article 51 of Protocol I stated in one of

4 its later clauses in the document, that breaches set out in the 22nd of

5 May agreement would be punished in accordance with domestic law and

6 therefore, Your Honour, it quite correctly points out that there was a

7 history of legislation in the former Yugoslavia which implemented that

8 country's obligations under Protocol I to provide a domestic forum for the

9 Prosecution of these offences.

10 In terms of customary law, we say the Trial Chamber was correct to

11 conclude it didn't have to go into that question because the 22 May

12 agreement was sufficient in terms of demonstrating both the prohibition

13 and the criminalisation. But even if Your Honours were against us on

14 that, we say that the prohibition on terror is established as part of

15 customary international law, and we've set out detailed submissions on

16 that in our brief as supplemented in my submissions today.

17 Unless Your Honours have any particular aspects of that that you

18 would like me to address in more detail, I'll rest on what we've said in

19 the brief.

20 JUDGE SCHOMBURG: Just to clarify, is it your proposition that

21 this agreement constitutes new law or the penalisation, or is it more or

22 less a declaration of already-existing law accepted by the parties, again,

23 therefore having no constitutive force at all. And to repeat the minor

24 question immediately that I don't take the floor again, my question was

25 only what is the distinguishing element between attacks against civilians

Page 140

1 and whether it's conceivable at all to carry out such a series of attacks

2 directed on civilians without the purpose to spread terror, referring to,

3 in particular, those expert witness testimonies you showed us this

4 morning.

5 Thank you.

6 MS. JARVIS: Your Honour, in respect of your follow-up question to

7 the answer I've just given you, I would just say that the effect of the

8 22nd of May, 1992, agreement was not to constitute new law. That can't

9 be the case because of course it was already provided for in the domestic

10 system of Yugoslavia. But what that agreement did was take the relevant

11 domestic law and make it applicable as part of a special agreement as

12 provided for in common Article 3 of the Geneva Conventions and by virtue

13 of that take it out of purely the realm of domestic law and into the realm

14 of an international agreement over which this Tribunal has jurisdiction.

15 In respect of the other point that you raised, thank you for the

16 clarification, I do understand now, certain -- I suppose Your Honour's

17 question raises two points primarily. First of all, obviously, it is

18 generally going to be the case that any unlawful attack or even any lawful

19 attack against civilians will in fact result in terror. And it's clear

20 that when the drafters of Protocol I, Article 51, were intending to

21 prohibit this particular type of offence, that's not the kind of terror

22 they had in mind, and that's why they included the special intent

23 requirement that the primary purpose of the acts of violence or the

24 threats of violence must be to spread terror. And we say there is no

25 problem with that on the facts of this case because, as I started my

Page 141

1 submission saying, this wasn't just the inevitable terror that accompanies

2 conflict, terror that accompanies conflict. As the majority went to

3 lengths to point out in their reasoning, this was a calculated, modulated

4 campaign specifically designed to inflict terror.

5 But the second point that Your Honour's question raises is whether

6 it is ever possible to have a series of attacks like this directed at

7 civilians without meeting the specific intent requirement.

8 Your Honours, theoretically that might be the case. For example,

9 it might be the primary purpose to in fact not spread terror but to wipe

10 out the population, to completely annihilate them through death and

11 injury. In that case, the specific intent, the primary purpose, would not

12 be to spread terror but to kill them. But that was expressly not the

13 finding of the majority in this case. They said it wasn't a campaign

14 designed to annihilate the population and it was a campaign, the primary

15 purpose of which was to spread terror.

16 JUDGE SCHOMBURG: Thank you for both clarifications.

17 JUDGE POCAR: Judge Shahabuddeen.

18 JUDGE SHAHABUDDEEN: [Microphone not activated].

19 THE INTERPRETER: Microphone, please, Your Honour.

20 JUDGE SHAHABUDDEEN: Here is a little one I'm sure you will knock

21 down with a feather.

22 It is, however, troubling me and so I put it to you for your help.

23 Suppose two other warring parties in the former Yugoslavia had entered

24 into an agreement conferring jurisdiction on the Tribunal over terror, but

25 had accompanied that prescription by certain other provisions which were

Page 142

1 not on par with the normal provision. Suppose, for example, they had said

2 that, all right, the Tribunal will have jurisdiction over terror,

3 provided, however, that the maximum sentence should not be beyond, say,

4 ten years. Well, then, I gather from your presentation that the Tribunal

5 would be in the unhappy position of having to execute both agreements,

6 differing as to sentences, but agreeing as to the crime. Help me out on

7 that.

8 MS. JARVIS: Thank you, Your Honour. I'll respond by making two

9 main points in relation to that question.

10 And the first point is that the point of this Tribunal's

11 jurisdiction extending to clearly applicable treaty provisions is of

12 course to address the problem of nullum crimen sine lege, to ensure that

13 this Tribunal doesn't retrospectively penalise acts, activities that were

14 not penalisable or were not criminal at the time that they were committed.

15 This Tribunal has never been confined in its sentencing practice by

16 domestic legislation or any other provision in international law.

17 So we would submit that while it would be appropriate to look at

18 that agreement and be satisfied that nullum crimen concerns had been met,

19 that that would not limit this Tribunal's sentencing jurisdiction in the

20 normal course.

21 And I perhaps could also, as my second point, point Your Honours

22 to the Kordic appeal judgement where perhaps a somewhat similar situation

23 arose in the way the Chamber approached the question. Because there the

24 Chamber was looking at the issue of the result requirement for

25 criminalisation of unlawful attacks, and it was applying the provisions of

Page 143

1 Protocol I as a matter of treaty law. And the Chamber looked at

2 Article 85 and determined that, indeed, the result requirement of serious

3 death and injury was mandatory. But the Appeals Chamber went on to look

4 at whether there was a different position in customary international law,

5 whether there was any evidence that this result requirement had in fact

6 been modified by a customary law norm, and it would seem from that

7 approach that the Chamber was open to the idea that even if there is a

8 clearly applicable treaty provision, if there was a broader customary law

9 norm the Tribunal would in fact go with that approach, and we say that is

10 also a response to Your Honour's question on this topic.

11 JUDGE SHAHABUDDEEN: [Microphone not activated].

12 THE INTERPRETER: Microphone, please, Your Honour.

13 JUDGE SHAHABUDDEEN: I have heard you. Can you help me on a

14 related question? I gather your position is this: That even if the

15 Tribunal has no jurisdiction over treaty-based crimes, where the treaty

16 has not evolved into customary international law, the crime in question

17 was still known to customary international law, is that your position and,

18 if so, could you help me again by telling me what is your strongest

19 argument for saying that terror was known to customary international law

20 at the material times?

21 MS. JARVIS: If Your Honour would just allow me one moment to

22 reflect on the answer that I would wish to give to that question.

23 Thank you, Your Honour. First of all, I can clarify that it is

24 the Prosecution's position that in any event the crime of terror is

25 reflected in customary international law. As you would have seen from our

Page 144

1 brief, we have approached that question from a number of different angles,

2 as indeed the Trial Chamber did, and we say that's correct.

3 But if I was to put to Your Honours the strongest of our arguments

4 in that respect, I would say that there is sufficient state practice and

5 opinio juris as cited in our brief and supplemented by the ICRC study on

6 customary international law to establish this norm as a matter of

7 customary law.

8 JUDGE SHAHABUDDEEN: Thank you very much.

9 JUDGE POCAR: Thank you. Any other questions? If that's not the

10 case, please, the Prosecution can continue their submissions.

11 MR. IERACE: Good afternoon, Your Honours. The main focus of my

12 submissions this afternoon is a response to the written submissions of the

13 Defence but I will incorporate into that a response to some of the

14 submissions that have been made this morning.

15 I might indicate for the benefit of the interpreters that I

16 understand a copy of my response is being prepared for them, to assist

17 them.

18 Your Honours, in his written submissions, the appellant contended

19 that the Trial Chamber approached the evaluation of the evidence in an

20 erroneous fashion. I'm referring to grounds 11, 12, 14, 15 and 17. A

21 predominant theme in these grounds is that no, or insufficient attention

22 was paid by the majority, and Judge Nieto-Navia, in his separate

23 judgement, to the principles of distinction and proportionality and, in

24 particular, to evidence that the city was replete with military targets.

25 Accordingly, says the appellant, what appeared to the witnesses called by

Page 145

1 the Prosecution to have been attacks on civilians could have been, in

2 fact, proportionate attacks directed to military targets.

3 Around this central theme, the appellant has appended secondary

4 arguments. For example, that the evidence of the totality of civilian

5 casualties in Sarajevo in the indictment period is inconsistent with

6 deliberate attacks on citizens and consistent instead with attacks against

7 military targets that proportionately incurred civilian casualties, an

8 argument adopted by Judge Nieto-Navia and repeated this morning by

9 Mr. Piletta-Zanin. I will come to it.

10 The appellant argues that the Trial Chamber failed to consider

11 this possibility that civilian casualties were an unavoidable corollary of

12 these lawful attacks; for example, in ground 11, paragraph 127, that the

13 Prosecution had to prove that civilian casualties were not the result of

14 collateral damage. Ground 12 is concerned with the same issue. Ground 14

15 as well, in so far as it deals with the alleged failure of the Trial

16 Chamber to define civilian and military areas.

17 In ground 15, the Defence argues it was necessary for the SRK to

18 use mortars in order to take out military targets obstructed from their

19 view and again, accordingly, civilian deaths were an unavoidable

20 consequence of a legitimate military action.

21 A second theme also emerges from these grounds, in relation to the

22 alleged --

23 JUDGE POCAR: Excuse me, I see the Defence. You have a --

24 MR. PILETTA-ZANIN: [Interpretation] Thank you, Mr. President.

25 If you make quotations or references, it should be done normally,

Page 146

1 in the Defence's view, from the transcript. I can see that we never

2 indicated that we would argue that the result of these casualties were the

3 acceptable result of unlawful attacks. We said the contrary. I just

4 wanted to clarify this because when I work on the French transcript I want

5 everything to be clear.

6 Thank you very much, Mr. Ierace.

7 MR. IERACE: Thank you, Your Honour.

8 A second theme also emerges from these same grounds in relation to

9 the alleged erroneous approach of the Trial Chamber to the evaluation of

10 evidence. The appellant has submitted that the Trial Chamber moved

11 from "the general to the particular." It concluded there was a campaign

12 of targeting civilians based on a generalised overview evidence of the

13 sniping and shelling in the city and separately made findings that

14 particular scheduled incidents were proved. So says the appellant. These

15 submissions are in the appellant's ground 12 at paragraphs 117 to 119 and

16 ground 17 at paragraph 255. The appellant contends that the scheduled

17 incidents were insufficient to prove a widespread and systematic campaign

18 but the overview evidence did not involve evidence of provable specific

19 incidents, were not based on knowledge of the whereabouts of military

20 targets and therefore was unreliable.

21 The Prosecution submits that both of these attacks on the

22 judgements are without merit. The Trial Chamber noted the

23 particularisation of specific incidents in the indictment was a procedural

24 requirement of the Tribunal's jurisprudence that gave the appellant proper

25 notice of the case he had to meet, paragraph 188 of the judgement, but by

Page 147

1 complying with that procedure, the Prosecution did not limit its case to

2 them. Even in relation to the unscheduled incidents, particulars, some

3 particulars were provided by the Prosecution to the Defence as part of its

4 Rule 65 ter obligations. The majority understood that these scheduled

5 incidents were not intended to represent, nor were they capable of

6 representing, a widespread and systematic campaign, and for that reason,

7 the Trial Chamber had regard to the evidence led -- I should say the

8 majority had regard to the evidence led by the Prosecution to prove that

9 these incidents were not isolated but representative of a campaign,

10 paragraph 208.

11 THE INTERPRETER: Could counsel please slow down?

12 MR. IERACE: I will.

13 The Trial Chamber said that to the extent that was possible and

14 reasonable, it assessed each scheduled incident on its own terms but also

15 with a limited reference to other evidence concerning the situation of

16 civilians in Sarajevo, paragraph 207. These pockets of scheduled

17 incident-specific evidence were then considered by the Trial

18 Chamber: "Within a more general evidentiary context reflecting how the

19 great number of witnesses in the case understood them and explained them."

20 Paragraph 189. Accordingly, it is not correct to suggest that the Trial

21 Chamber considered the overview evidence and the evidence pertaining to

22 the scheduled incidents separately. Ultimately, it combined all the

23 evidence, including that of the unscheduled incidents, in a global fashion

24 as it was entitled to do and as common sense would dictate.

25 The Trial Chamber also considered the evidence from different

Page 148

1 perspectives, from the geographical perspective and the temporal

2 perspective. It weighed the evidence district by district around Sarajevo

3 as to scheduled and unscheduled sniping and shelling incidents and the

4 evidence of the whereabouts of possible military targets, in great detail,

5 accounting for 150 pages of the judgement.

6 The Trial Chamber explained that in this exhaustive

7 review: "Witness evidence, together with documentary evidence, has been

8 chosen, combined and arranged by the Trial Chamber in accordance with its

9 relevance the credibility of its source, and its probative value, with due

10 regard to the fact that the present indictment alleges unlawful conduct

11 and responsibility for such conduct going beyond what is referred to in

12 the scheduled incidents." Paragraph 189.

13 The Trial Chamber repeatedly considered possible exculpatory

14 evidence consistent with the principles of distinction and proportionality

15 but outlined its approach to this evidence at paragraphs 185 to 191,

16 stating that it had regard to: "Combat activity going on at the time and

17 the location of the incident as well as relevant nearby presence of

18 military activities and facilities."

19 The majority concluded that throughout the indictment period,

20 wherever there were civilians within the confrontation lines, this is as a

21 result of their district by district consideration of the evidence,

22 considering the scheduled incidents, the unscheduled incidents and the

23 overview incidents, that civilians were targeted often from places that

24 gained local notoriety such as the Grbavica high-rise buildings on the

25 sniper alley, General Tito Boulevard, Ozrenska Street onto Hrasno, the

Page 149

1 church tower on to Dobrinja, the ridge known as "sharp stone" into north

2 eastern Sarajevo, and so on. This targeting was overwhelmingly from SRK

3 forces and in an orchestrated manner that was demonstrated to be

4 responsive to the SRK leadership.

5 The Trial Chamber also considered the overall pattern of fire

6 throughout the indictment period, noting the fluctuations and diminution

7 in civilian casualties as civilians individually, the Sarajevan civil

8 authorities and the UN devised successful protective strategies.

9 Civilians were forced from the relative safety of their homes to

10 fetch water, to find combustible material to burn for cooking and warmth.

11 As time passed, safer alternative pedestrian routes to traverse the city

12 were developed, funerals were held at night, pedestrian crossings were

13 afforded some protection with shipping containers and the like, the cover

14 of foggy mornings was used to cross open ground, and so the rate of

15 civilian casualties dropped over the period.

16 The appellant submitted to the Trial Chamber in going beyond the

17 evidence pertaining to the scheduled incidents, relied on a body of

18 witnesses whose credibility was unreliable. "These testimonies do not

19 contain even a single concrete data on the alleged incidents."

20 Paragraph 255, grounds 17. And we heard that again today from

21 Mrs. Pilipovic.

22 The Prosecution submits this submission is contrary to the trial

23 record. The evidence before the Trial Chamber included that of insiders

24 who gave evidence of SRK practice in relation to the shelling of civilians

25 deliberately, and the indiscriminate targeting of civilians through

Page 150

1 sniping.

2 In relation to shelling, to use the words of the majority,

3 Witness AD, a SRK soldier, testified that the commander of the Ilijas

4 Brigade, and that was one of the brigades of the Sarajevo-Romanija Corps

5 gave orders to his mortar battery to target ambulances, a marketplace,

6 funeral processions, and cemeteries further north from the city in

7 Mrakovo.

8 In relation to sniping, Witness D, also an SRK soldier, gave

9 evidence of serving with snipers both at the Grbavica high-rise buildings

10 overlooking central Sarajevo and also at SRK positions just north of

11 Ozrenska Street on the ridge to the south of the city overlooking Hrasno.

12 He described their sniper rifles, fitted with telescopic sights. At

13 Grbavica they were ordered to shoot anything that moved. They were not

14 ordered to not target civilians. Paragraphs 236, 237 of the judgement

15 indicates that Their Honours accepted this evidence.

16 At Ozrenska Street, Witness D saw infrared sights and a special

17 machine-gun fitted with an optical sight. From that position, he saw the

18 gunners targeting intersections that, although protected with anti-sniping

19 barriers, still allowed opportunities to snipe people visible in gaps

20 between the barriers. Mrs. Pilipovic said even yet again this morning

21 that there was no evidence that the SRK had snipers, in spite of the

22 uncontradicted evidence of Witness D. It was not put to him that he was

23 lying or mistaken. Even the Defence's own command and control expert,

24 General Radinovic, in his report tendered by the Defence said that the SRK

25 had snipers from 1993.

Page 151

1 As well as the insiders, the Trial Chamber heard from war

2 correspondents, seasoned observers of armed conflict. Aernout Van Lynden,

3 an ex-member of the Royal Netherlands Marine Corps, toured the entire

4 front line with the permission of General Mladic, accompanied by liaison

5 officers of the SRK, and he personally inspected the sniper outposts in

6 the Grbavica high-rise. He noted the snipers wore uniforms, that they

7 used radios and spotters to conduct their sniping from those positions.

8 He gave evidence that on the 5th of December, 1992, he observed a

9 civilian apartment block come under fire. On that day, he saw the

10 shelling of the apartment block in Cengic Vila, that particular part of

11 Sarajevo, he marked the position of the apartment block with precision on

12 a map. He saw it come under fire from incendiary rounds of a large

13 calibre, he estimated 10 to 15 centimetres, either a very large

14 machine-gun or anti-aircraft gun. Because they were incendiary, he could

15 easily visually trace them back to their source on SRK territory. He knew

16 it was that because he had been there. His film crew took some footage in

17 his presence, Exhibit P3647, which we will see now, part of that exhibit.

18 [Videotape played]

19 "One apartment block, the resident watching, distraught, his

20 home, belongings gone.

21 "Seconds later, further bursts of incendiary rounds crash into

22 the building or bounce off the wall into the street below. Wanton arson

23 of a purely civilian target.

24 "As ever, Sarajevo's remarkable firemen fight back, getting their

25 hoses to the flames for once unhampered by a cut in the water supply. But

Page 152

1 for the fire chief water is not the main concern. His engines are running

2 out of fuel. And he tells us he won't be able to cope with another fire

3 this day.

4 "The fall of artillery and escalation of shelling here in the

5 centre of Sarajevo again undermine the impotence of international efforts

6 in Bosnia. Cease-fires and political talks have led no where and won't

7 until the western world proves it has a true commitment in ending this

8 war. Aernout Van Lynden, SkyNews, Sarajevo."

9 MR. IERACE: Van Lynden gave evidence that he personally

10 interviewed some of the hundreds of civilians who lived in the building,

11 and they confirmed there was no military occupation of any part of the

12 building, that fire did not emanate from it, and that the fire against

13 them commenced without warning with the incendiary rounds.

14 Your Honours, I'm aware I only have five minutes left, so I will

15 move in more or less point form through some of the rest of what I wish to

16 submit.

17 Another witness, equally impressive, was Morten Hvaal, a Norwegian

18 photojournalist with 20 years experience. He gave evidence of convincing

19 unscheduled incidents; for example, whilst driving along General Tito

20 Boulevard in the winter of either 1993 or 1994, he observed a middle-aged

21 woman who had been shot in the lower portion of her body writhing in an

22 intersection which was exposed to fire from SRK territory to the south.

23 He observed pedestrians from a position of cover attempting to rescue her.

24 He tried to use his armoured journalist's vehicle to protect her from the

25 south, but before he could take those measures she was shot in the head.

Page 153

1 He then accompanied the transport of her body to the morgue, where he

2 photographed it, and that's in evidence. P3625. It is convincing visual

3 evidence that she was shot as a civilian, being elderly, wearing a fur

4 coat, makeup, having long hair.

5 The Tribunal -- the Trial Chamber heard from 21 UN military

6 personnel who witnessed the conflict on the ground during the appellant's

7 tenure. They had an office in his headquarters. They explained the

8 relatively static nature of the conflict, the fact that there was little

9 movement on the lines accepted by the majority at paragraph 589.

10 That is a very important aspect of understanding the evidence,

11 Your Honours, in this case. It was an unusual armed conflict because over

12 the extended period of the indictment, there was very little movement in

13 terms of the front line. There were occasional flare-ups but even those

14 had mostly subsided by the end of 1992.

15 They gave evidence of observing multi-launch rocket systems

16 impacting in the city. Carl Harding, on the 8th of December, 1992, saw

17 nine rockets hit the downtown part of Sarajevo. Major Jeremy Hermer,

18 likewise in October 1993. These are what are called, according to the

19 experts in the trial, area weapons, anti-personnel weapons, designed to

20 create a large killing field area of shrapnel, not designed to demolish

21 buildings as was the case with mortars. Mr. Piletta-Zanin this morning

22 referred to most of the damage being on the front lines. That may have

23 been the case. There was evidence that there was significant damage

24 downtown as well, but the weapons that were aimed at the civilians were

25 anti-personnel weapons rather than those designed to damage buildings.

Page 154

1 The fact that Their Honours occasionally rejected scheduled

2 incidents demonstrated the care that they employed in considering the

3 principle of proportionality and an honest and understandable mistake on

4 the part of the SRK. An example of that is sniping incident 14. Although

5 the Trial Chamber concluded the victim was an unarmed civilian wearing

6 civilian clothes engaged in a civilian activity, having regard to his

7 proximity to a military check-point and that he was advancing towards the

8 front line when he was shot and poor visibility, it said: "That it could

9 not exclude" -- "cannot exclude beyond reasonable doubt that Witness L was

10 deliberately targeted as a civilian and cannot consider this incident as

11 representative of a campaign of fire against civilians."

12 Your Honours, in the remaining few minutes, I would respectfully

13 submit that Your Honours look at the 360-degree photographs which are in

14 evidence; for example, in relation to sniping incident 6. One will come

15 on the screen in a moment. They demonstrate how, while it would have been

16 preferable for the Trial Chamber to have a view, it was not absolutely

17 necessary.

18 Ms. Pilipovic said this morning that with a view the Trial Chamber

19 could have seen if there was a line of sight from where the victim was to

20 where the suspected source of fire was. They had that advantage with

21 these 360-degree photographs. The modus was that an video would be

22 tendered into evidence. On the video, the Trial Chamber could see an

23 eye-witness to the sniping incident, indicate with position -- precision,

24 rather, where the victim was when shot, the eye-witness would confirm that

25 in live evidence before the Tribunal. There was evidence that the camera

Page 155

1 would then be set up on a special tripod at precisely that position at the

2 approximate height at which the bullet entered the body, and then 360

3 photographs such as this generated.

4 Incident 6 involved a middle-aged woman who was shot while

5 collecting water from the banks of the Dobrinja river. She and others had

6 been sheltering from sniper fire beside a pedestrian bridge. And as we

7 turn the photograph around, we can see the river and the overhead bridge,

8 and in the distance, the witness -- the eye-witness was able to identify a

9 particular building which was a suspected source of fire. It's possible

10 to zoom in on these photographs, and I won't take Your Honours to them now

11 because of lack of time. But Your Honours will see by looking at the

12 evidence in relation to this incident that the still photograph was

13 generated of the view on the screen at the moment, the particular building

14 was circled, further photographs were tendered of that building, including

15 an area map, and that was ultimately appropriately identified.

16 Your Honours have asked a question in relation to returned fire to

17 hospitals. Perhaps I should deal with that very quickly. The wording of

18 the question by the use of the word "may" appropriately incorporates a

19 qualification for the hospital does not necessarily lose its protection

20 simply because troops have fired from it. The effect of Additional

21 Protocol -- it's well established that hospitals are protected, and the

22 effect of Additional Protocol I, Articles 8 and 12, is that they are

23 protected at all times and should not be the object of attack. Such an

24 attack constitutes a grave breach of Additional Protocol I. The

25 Additional Protocols provide that due warning must be given by the

Page 156

1 retaliatory party with reasonable notice to evacuate. That notice must be

2 long enough, according to the ICRC commentary either to allow the unlawful

3 acts to be stopped or for wounded -- the wounded and sick who are present

4 to be removed to a place of safety.

5 The special agreement of the 22nd of May, 1992, on the application

6 of international humanitarian law between the parties at paragraph 2.2

7 specified that where hospitals were used to commit military acts, they

8 would lose their protection only "after due warning and a reasonable time

9 limit to cease military activities."

10 As to when an attack should cease, given that it could only

11 proceed in the first place in conformity with the principles of

12 distinction and proportionality, those same principles must surely guide

13 the time at which it must cease. In other words, a hospital that loses

14 its protection from attack ceases to be a legitimate military target and

15 regains that protection when the attack no longer complies with those two

16 principles.

17 To apply that to the situation established in the evidence in

18 relation to Kosevo hospital, which I assume was the motivation, the SRK

19 should have ceased its counter-battery fire when the mortars and the crew

20 could no longer be expected to be present, or when the anticipated

21 civilian casualties and damage to the hospital was excessive in contrast

22 to the remaining expectations of neutralising the mortar unit or units by

23 further fire.

24 Excuse me, Your Honours.

25 [Prosecution counsel confer]

Page 157

1 JUDGE POCAR: Mr. Ierace, may I draw your attention to the clock.

2 Your time has expired.

3 MR. IERACE: Yes. Unless Your Honours have any questions, I'll

4 cease my submissions at that point.

5 JUDGE POCAR: Thank you. Any questions from the Bench?

6 Judge Meron.

7 JUDGE MERON: I have noticed that you have not really discussed in

8 detail the Markale market situation.

9 MR. IERACE: Yes, Your Honour. Indeed I had intended to do that.

10 JUDGE MERON: Could I ask you then a question which might help you

11 focus on that?

12 MR. IERACE: Yes.

13 JUDGE MERON: I have two questions with regard to that.

14 You will recall the UNPROFOR report which is cited in the

15 judgement. That report states, and I quote: "That it was not possible to

16 estimate with any acceptable degree of accuracy the angle of descent of

17 the shell that hit Markale market and that UNPROFOR therefore could only

18 conclude that the possible distance of origin of fire is between 300

19 metres and 5.551 metres."

20 In these circumstances, on what basis could a reasonable Trial

21 Chamber conclude that the angle of descent was no greater than 65 degrees

22 and that the shot therefore came from behind Serb lines? This is my first

23 question. I will have one more question.

24 MR. IERACE: Your Honour, there are perhaps two bodies of evidence

25 that were of great assistance to the Trial Chamber in arriving at that

Page 158

1 conclusion beyond a reasonable doubt. The first was the supplementary,

2 what we might call the supplementary expert evidence available to the

3 Trial Chamber which was not available to the UN at that particular point

4 in time in 1994. In particular, I refer to the evidence of Mr. Zecevic,

5 the Prosecution expert, and the investigations that he carried out.

6 There was also some other material beyond him that went into

7 evidence that supplemented the material before the UN.

8 Secondly, the second fundamental body of evidence was that of what

9 might be loosely called eye-witnesses, perhaps ear witnesses. There were

10 three civilians who were positioned at the relevant time in close

11 proximity to the confrontation line in the relevant part of Sarajevo.

12 Mr. Piletta-Zanin referred to one of them, AK-1, this morning. That

13 witness was not the only source of such evidence.

14 I especially refer Your Honours to I think it was Witness P, who

15 was positioned some 200 metres beneath sharp stone at the appropriate

16 time, and Witness P gave evidence of hearing an explosion consistent with

17 the firing of a heavy weapon coming from beyond the reach, and given that

18 the SRK occupied the ridge, beyond the ridge clearly meant in SRK

19 territory. And shortly after, that witness made observations consistent

20 with the shell having exploded in Markale. So there was -- those -- the

21 evidence of those three witnesses to supplement not only the UN report but

22 the additional expert evidence.

23 JUDGE MERON: Thank you.

24 My second question is this: Let us assume, indeed, that the shell

25 which hit Markale market was fired by Serb forces. Given that according

Page 159

1 to Witness Hamill, who was cited by the Prosecution this morning, the

2 closest legitimate military target was just 300 metres away. On what

3 basis could a reasonable Trial Chamber conclude that the shell was fired

4 deliberately at the market?

5 MR. IERACE: The evidence that that was so, that the Trial Chamber

6 could have regard to, was the considerable body of evidence that because

7 of the unusual feature of this armed conflict that I referred to earlier,

8 namely its static nature, mortar crews were able in this particular

9 conflict to achieve an extraordinary degree of accuracy with their firing.

10 Even Witness AD, who was the captain of a mortar crew, testified that he

11 was capable of hitting a moving target. Mr. Ashton, a humanitarian

12 supplier of medical supplies, witnessed such an attack on a vehicle. As

13 the vehicle drove down the road, it was being followed by mortars until

14 finally hit.

15 That is a degree of accuracy which normally is not capable of

16 being achieved. The specific reason that they could do that was because

17 as explained by the mortar experts, a mortar has what's called a ground

18 plate underneath it, and when that is firmly anchored, such accuracy is

19 capable, together with the knowledge of coordinates that are used time and

20 time again. These mortars on the SRK side did not have to be moved.

21 Because of the imbalance in heavy weaponry between the two sides, the SRK

22 did not fear that their mortar sites would be attacked by the ABiH, so

23 they remained in position for two years and therefore were very accurate.

24 However, it was not the Prosecution case that the market was definitely

25 specifically targeted. Rather, that equally it could have been a case of

Page 160

1 indiscriminate fire, given that it was one shell fired into that area.

2 JUDGE MERON: So the Prosecution does not, in fact, argue that

3 this was deliberate?

4 MR. IERACE: The Prosecution, in a sense, has it both ways, Your

5 Honour, that the accuracy of the crews was such that it could have been

6 deliberately targeted, but in any event, it was indiscriminate to send a

7 shell into that area.

8 Your Honour mentioned that there was evidence of a military target

9 some 300 metres away. The Prosecution would strongly submit that that

10 could not excuse the firing of a 120-millimetre mortar shell, which is a

11 very big mortar shell, into the crowded downtown area of Sarajevo around

12 mid-day on a Friday. I indicate that day because it was well known that

13 that was a market day, a green market day, and a number of casualties from

14 one single shell in the hundreds, attests to that, how tightly packed

15 civilians were at that stage.

16 JUDGE MERON: I seem to remember that there was some testimony to

17 the effect that an experienced mortar crew would on the first shell be

18 able to get within 200, 300 metres. We are talking this is in the same

19 ballpark and there was only one shell fired.

20 MR. IERACE: Yes. And what Your Honour says firstly is an

21 accurate rendition of the evidence, and it's what properly applies to what

22 we might call a normal armed conflict but not to a static conflict as

23 there was in Sarajevo. And again, I would refer Your Honour to extensive

24 evidence to the effect that this unusual feature, both in the Prosecution

25 final submissions, post-trial, as well as the oral submissions.

Page 161

1 JUDGE MERON: Thank you very much.

2 JUDGE POCAR: I thank you.

3 MR. IERACE: Thank you, Your Honour.

4 JUDGE POCAR: I turn now to the Defence for their reply. The

5 Defence has scheduled 45 minutes for their reply.

6 MR. PILETTA-ZANIN: [Interpretation] Thank you. So we have 45

7 minutes, right? We have 45 minutes, Mr. President? Yes. Very well.

8 Thank you very much, Mr. President. I am going to respond a

9 little more slowly so as to avoid any translation problems.

10 Let me start with what Mr. Ierace said in his responses and then

11 I'll go back to the other features that may be necessary.

12 First point, it is being told to you that this weapon, and it is

13 now discovered that this shell on Markale may not have been a deliberate

14 attack but a reckless act. It is also being told to you that the Serbs

15 were very accurate in their firing. But one thing is not mentioned and

16 has been neglected, whilst it has been proved each mortar shell, each

17 mortar fire must be looked as an individual case because at the weather

18 conditions on a day are never the same as on the next day or the day

19 before. So everything is in flux and changes. So theoretically on a

20 range of 5.000 or 6.000 metres, if you have a few more or less degrees in

21 temperature or more wind or less wind, that will change the target, not by

22 200 but by 500 or 600 metres. An expert said so. The mortar weapon is an

23 area weapon, so you can of course hit -- you say you can move -- hit a

24 moving vehicle, well, good luck to you if you try. That will be my first

25 point.

Page 162

1 Secondly, if I do follow the Prosecution, it is impossible to fire

2 with heavy weaponry in a town on objects such as barracks. If I did

3 understand the Prosecution well, any fire on civilians is terror. So

4 there is no need to make any distinction they say. They say in theory, it

5 is sufficient for the wish to eliminate a population in Sarajevo or

6 elsewhere, then the problem of terror is eliminated too. It's a little

7 easy. It is all theory.

8 But let's look at the concrete situation for this man who is being

9 tried and not for another, for Mr. Mladic or somebody else. You must see

10 whether in Sarajevo 120-millimetre mortar shells did occasion

11 impermissible damage. And the graph does show that there were 120-, 80-,

12 60-millimetre shells but there was a will on behalf of the command to

13 comply with the two main principles of distinction and proportionality,

14 and that is what happened in the figures. Thank you for admitting for the

15 first time today, Mr. Ierace, that possibly there was not that degree of

16 destruction within the centre of Sarajevo. You just admit the truth,

17 nothing more, nothing less. You admit that damage was mainly caused on

18 the confrontation line, and this changes the whole ball game, but it's

19 only admitted now.

20 Now as to the other answers to be supplied, some are important

21 ones.

22 JUDGE POCAR: [Interpretation] Can I ask you to slow down or slow

23 down again?

24 MR. PILETTA-ZANIN: [Interpretation] I'll slow down again.

25 JUDGE POCAR: [Interpretation] Think of the interpreters,

Page 163

1 Mr. Piletta-Zanin.

2 MR. PILETTA-ZANIN: [Interpretation] My apologies to everybody.

3 So terror and fire directed at the population. I'd like to say

4 one thing once again. The Serb forces, they didn't have a plan. A plan

5 was never seen, the goals of the superiors as they say. They were never

6 seen. We don't know what they are. How can you carry out something that

7 could not be proved at trial? But they were indeed objectives. There

8 were two of them. They were material military objectives. This or that

9 object, a table, or this or that object, and there were also strategic

10 objectives. You know the military.

11 As to strategic elements, they are more sensitive or difficult.

12 What was it in Sarajevo? It was to harass the 50.000 troops in Sarajevo

13 so that they stay on the Sarajevo front, and that they not be used by

14 another commander on another front. This is a legitimate objective. How

15 can you harass troops, military men, soldiers who, by the way, are in

16 town, other than by opening fire on them? And if these men are not all on

17 the front line, it would be much easier but they are scattered everywhere.

18 What should a commander do? What should a military strategy or

19 organisation do? They must take this legitimate objective into

20 consideration and ensure that the actions undertaken be not actions that

21 are, generally speaking, and this is very important, I insist on it, that

22 generally speaking be actions causing too many civilian casualties because

23 we know that that is a reality. But civilian casualties are inevitable in

24 urban warfare.

25 So as to the questions of the objective of harassing troops was

Page 164

1 legitimate or not, we say yes.

2 Now, if you look at the figures, you know them, the Prosecution

3 themselves produced those figures. Now, is that -- are these the proof of

4 some unlawful action? We say no. But more than that we say that these

5 figures were too low for this to be considered, not on the basis of one or

6 two individual actions or -- but to believe that there was a campaign.

7 253 victims through sniping, as adduced by the Prosecution, P3137, yes,

8 the 700 or -- 700 days of fighting and something around 932 casualties

9 through shelling for the same period of time.

10 Open your newspaper or yesterday's newspaper. Look at well known

11 sites as provided by Amnesty International, who are neutral, and this is

12 just by way of an example. Look at the recent conflict between Israel and

13 the Lebanon. Over a month, from the 12th of July to the 14 of August, you

14 already have more than a thousand civilian casualties. Take another very

15 notorious side, very well known to specialists, the Iraqi body count. For

16 the first three months of joint military operations, coalition-led

17 operation in Iraq, you have from 7.000 to 10.000 civilian casualties in a

18 supposedly clean war.

19 So where is terror? Was there terror in Sarajevo? Such is the

20 question.

21 In order to ascertain whether there is terror, it's not enough to

22 say any attack on civilians is terror. What you have to do is to clearly

23 and as precisely as possible determine whether there were actions that

24 were patently illegitimate and lawful which they were and what their

25 results would have been. And what I say again about terror is that

Page 165

1 Sarajevo is the very example of the bad example, of the proper example.

2 What do I mean? I mean this: When you look at Sarajevo, and I

3 think that you come my way, Mr. Ierace, there were so many legitimate

4 objectives in town that any attack, even a lawful one, a legitimate one,

5 is going to cause terror, any legitimate attack in Sarajevo was bound to

6 produce terror. In such a situation, how can you try to analyse what

7 legitimate and lawful terror would be?

8 After seeing a graph or a chart provided by Mr. Ierace where we

9 see the comparison between the elements presented by the Prosecution and

10 those eventually adduced by the Trial Chamber, I say this is

11 impermissible. Why? Because at the end of the day, if you look at it,

12 the most essential part is missing. We could look at it again, but I have

13 it in mind.

14 What is most essential in the Prosecution case? Which was lost

15 here in this regard? It was the proof that terror was actually caused,

16 not the lawful one but the unlawful one. The actual infliction of terror

17 has totally disappeared from this chart. And this is quite strange. One

18 dares to claim here that you no longer want to sustain this actually --

19 actual infliction of terror in your case. But we in our defence, we

20 relied on your case as confirmed by the Tribunal in order to organise our

21 own case, and because you had failed to prove -- and the actual infliction

22 in Article 6 is important and it was not known, so we could have done away

23 with this non-existent claim of terror.

24 Let me go back to a point that is important with relation to

25 Article 7, the problem of criminal responsibility due to command

Page 166

1 responsibility. I would like to draw your attention on some authorities

2 as complied with by some countries, this is not an exhaustive list, but

3 UK, Belgium, Canada, Spain, Italy, New Zealand, and the Netherlands. Do

4 we with -- relate to the disproportionate character of an attack or to the

5 lack of distinction, what should we do? Should we isolate one case or

6 two, or do we look all of the attacks?

7 What do you have in Sarajevo? We have a siege situation,

8 encirclement, so there is also a situation of conflict, and we have a

9 commander from September 1992 to September 1994. So what we have to do is

10 not to look at the Markale marketplace in order to see whether there was a

11 deliberate targeting. You have to look at all of the situation in order

12 to see whether the command, in face -- faced with the situation had such a

13 behaviour that norms and standards were not complied with. Statistics are

14 very important in this respect because whatever your answer may be to the

15 issue of terror, and you said it was impermissible to shell the city with

16 mortar fire, we'll have to provide a clear answer to a simple question.

17 Whilst there were so many cases of shell firing, and the mortar being an

18 area zone, how can we have this result? And here I quote the Prosecution

19 expert, who said that the overwhelming majority of victims in Sarajevo

20 were males, old enough to fight, and men who were in the army. Or in the

21 Territorial Defence.

22 When you look at figures, when you look at Prosecution witnesses,

23 expert witnesses, they claim that within this very close context of urban

24 warfare, the results with regard to the overwhelming majority, I think it

25 is vast majority as quoted in Exhibit P31, 3137, so that was that there

Page 167

1 was a vast majority of soldiers, therefore, a very small minority of

2 civilians.

3 Earlier on, a new document was quoted from Eckert [phoen] and

4 Bekker, pertaining to the issue of customary international law or not.

5 One thing has to be looked at in this respect. The said book was written

6 in 2005. It's commentary in three volumes. But it fails to provide any

7 answer to the question as to whether -- maybe apart from Yugoslav law,

8 what this law was over 12 years ago. That is in the period 1992-94, at

9 the material times. It is now said that this is the way it is now, but

10 this is not a historic document, and you have to establish what prevailed

11 then, and this is a major issue. All the more so since of course at the

12 time General Galic could not imagine that we would, 12 years later,

13 discuss this sort of issue because it was way beyond him anyway. So we'll

14 have to see things in their historical context. You cannot take events

15 and look at them today as if it came out of the blue.

16 Page 72 mention is made of a strategy that lacks the art of

17 discerning. I proved the contrary, so this is once again an error.

18 And before I give the floor to Ms. Pilipovic, I'd like to mention

19 a few things very briefly because witnesses were mentioned. But one thing

20 is forgotten, one forgets to say what they said. Witness AD was mentioned

21 by name very often. Namely that he had been given orders to shoot at the

22 market outside of Sarajevo, and he had instructions to hit graveyards.

23 But one thing was not told you, so one tries to hide that from you.

24 Firstly, next to the marketplace, next door to it, there were

25 barracks with a lot of police force. So we are very close to a possible

Page 168

1 target, and in the said graveyard there were trenches, defence trenches

2 running along the graveyard, and the graveyards were used, the stones in

3 the graveyard were used by the opponent as means of advances. So it's

4 easy to say one hit or one didn't hit such and such elements. If you

5 quote something, you have to quote extensively.

6 I know I have to finish because I don't have that much time. One

7 last reminder. With regard to this Trial Chamber judgement with regard to

8 this case, you ever to look at the results of this alleged campaign but

9 not based on just a couple of elements but on all of them. And the

10 results are the figures, the truth, and they are very much in favour of

11 the Defence case.

12 I now give the floor to Ms. Pilipovic and I thank you.

13 MS. PILIPOVIC: [Interpretation] Your Honours, in response to the

14 questions raised by my learned friend, Mr. Mark Ierace, I will first reply

15 to the question pertaining to incident number 6.

16 First of all, the panoramic photograph, the 360-degree photograph,

17 cannot be used as evidence, and the Defence challenged all such

18 photographs that the OTP used in their case during trial.

19 Why did we do that? I will now go back to the issue of how

20 necessary the on-site visit was, especially when it comes to this

21 incident. Had the Trial Chamber gone to the site, they would have seen

22 that there was a difference in the level of where the victim was and the

23 bell-tower of the Orthodox church from where allegedly the victim was

24 shot.

25 When Defence went there, and we went there with our experts at

Page 169

1 least five times, we visited all of the sites scheduled in the indictment

2 as well as the demarcation line between warring sides, which controlled

3 certain parts of town, and on the basis of our experience there we could

4 see that from the tower of the Orthodox church it was impossible to see

5 the site where the victim was, nor was it possible to conclude that a

6 person who was in that location could have had an unobstructed view of the

7 location where the victim was.

8 This is another very important fact which in view of the Defence

9 had to be analysed and considered by the Trial Chamber. Also, they needed

10 to establish whether there was an unobstructed view between the victim and

11 the perpetrator. They also needed to establish whether there was

12 something obstructing the view. They also needed to establish what was

13 the exact distance from the source of fire to the location where the

14 victim was. They also needed to question whether the distance was such as

15 to enable whoever was shooting to see who the victim was and what was

16 victim's capacity.

17 So in view of the Defence, these were the objective standards that

18 needed to be met, that needed to be established in relation to each

19 individual incident in order to find out whether the person who pulled the

20 trigger, and such persons were identified by the OTP in some cases and in

21 some cases were not, so whether the person pulling the trigger intended

22 indeed to kill or injury the victim.

23 Another standard that the Trial Chamber failed to establish is the

24 subjective standard, which is precisely the intention, the will of the

25 person pulling the trigger. They needed to establish whether they wanted

Page 170

1 to kill or injure the victim or whether there was some unexplainable

2 reason behind that. Once again, Defence wish to point out the fact that

3 was neglected by my learned friend, which is just what a positive impact

4 it would have had on the whole case had the Trial Chamber gone on an

5 on-site visit.

6 My learned friend spoke about the height of the Hrasno hill,

7 explaining that from that position one could see the urban part of the

8 town and that it was precisely from those positions that the members of

9 the SRK fired upon the population of Sarajevo. This is the inference made

10 by the OTP.

11 The Defence made an on-site visit, and I told you that we went

12 there at least five times, and we toured these positions. Had the Trial

13 Chamber toured these positions, they would have seen that Ozrenska Street,

14 which my learned friend mentioned as the street from which members of the

15 SRK opened fire, goes from the western direction towards the Mojmilo hill,

16 which was under the control of the ABiH army. To this day, there are

17 still trenches that were put in place by the BH army. This is a fact

18 supporting our position that this was held by the BH army.

19 Had the Trial Chamber made an on-site visit, they would have seen

20 that from that position one cannot see certain locations concerning which

21 the Prosecution claims that the -- that it was from there that civilians

22 in town were targeted. And they would be able to see that incidents 10,

23 15, 20 and 27 needed to be excluded as incidents for which the SRK members

24 were responsible.

25 Another issue that I should point is that my learned friend tried

Page 171

1 in his oral presentation today to tell the Appeals Chamber that

2 unscheduled incidents to which my friend referred took place and that the

3 Trial Chamber evaluated them within the scheduled incidents.

4 I have to say that when it comes to the so-called unscheduled

5 incidents, as my learned friend says, and for which they claim that they

6 were part of the campaign, that such incidents were not discussed during

7 trial, nor was it ever established or tried -- nobody even tried to

8 establish how these incidents took place, nor did the OTP support this

9 with any evidence. This is why the Defence claims that even if there were

10 any incidents, then they could have been only a result of legitimate

11 activity of the forces of the SRK and that under no circumstances should

12 they be used to prove that there was a campaign against civilians.

13 Thus I reply to my learned friend when it comes to incident

14 number 6, we stand by our previous position that had the Trial Chamber

15 visited the location, they would have established in relation to all other

16 incidents that were discussed during trial that from the positions from

17 which in view of the OTP the SRK forces opened fire, it was simply

18 impossible to do that. This was not something that the SRK members were

19 responsible for, these incidents.

20 Now, in response to what my learned friend said about the

21 hospital, I wish to say as follows: I wish to refer to the testimony of

22 Witness D-51, who was a Defence witness.

23 Your Honours, my learned friend is indicating that it may be time

24 for our break.

25 JUDGE POCAR: No. Why should we have a break?

Page 172

1 MS. PILIPOVIC: [Interpretation] Thank you, thank you.

2 When it comes to the position of the OTP and the presentation that

3 my learned friend made about the Kosevo hospital, I wish to say as

4 follows: In our presentation this morning, we said that the OTP witness

5 stated that he received at least 25 protests and noticed that the hospital

6 was used in order to fire upon the SRK forces.

7 What is the Defence trying to say? Namely that the Defence --

8 that the members of army of Bosnia-Herzegovina were constantly warned not

9 to use mortar fire from the hospital. Witness D-51, who was a Defence

10 witness, and who continuously worked in the hospital at the time, also

11 stated that in the hospital compound, there were three tanks and three

12 combat vehicles. The witness stated that at all times when the BH army

13 forces were active from the hospital compound the workers of the hospital

14 had to vacate part of the hospital, had to evacuate the hospital because

15 they were expecting a response from the SRK forces, because as the witness

16 stated, after five or seven fired rounds, they would always receive a

17 response in the same area, which would mean that the BH army forces were

18 always, in advance, warned that there would be a response from those

19 positions.

20 So it is the view of the Defence that there cannot be a direct

21 answer to the question put by the Appeals Chamber.

22 I'm also hereby replying to my learned friend and reiterating that

23 there was always due notice and warning that there should be no fire

24 opened from the hospital compound. So this would be my reply when it

25 comes to the issue of fire opened from the Kosevo hospital.

Page 173

1 I also mentioned D28, which was Defence Exhibit, a letter that we

2 tendered into evidence during trial.

3 Another issue that we wish to bring up in our response is the fact

4 that in the final reports to which we referred this morning, certain facts

5 were mentioned that we wished to repeat here before the Appeals Chamber

6 once again. Namely, that back in 1993, the UN Commission of Experts

7 established that the BH army forces concentrated their forces in town

8 itself, that they conducted a very aggressive policy, that the SRK forces

9 always uncovered the firing positions, I'm now referring to paragraph 37

10 of this report, and that they always opened fire only on legitimate and

11 military targets.

12 Another issue that I wish to mention is that it was necessary for

13 each individual case to be evaluated separately so that they could exclude

14 the possibility of randomness and error. And in this regard, we fully

15 support the view of Judge Nieto-Navia, his position that was stated in his

16 separate opinion.

17 We also wish to reiterate that this general approach used by the

18 OTP, namely when they say that civilians were regularly targeted when they

19 went to fetch water, when they went to put out fires, when they sat in

20 their homes, or attended funerals, once again, I emphasise that this is

21 mere generalisation. The OTP, during trial, did not adduce a single piece

22 of evidence that would support their claim that members of the SRK fired

23 upon civilians when they went to fetch water, when they went to put out

24 fires, when they picked lettuce, as mentioned when incident number 4.

25 I also need to say that the OTP referred to the UNPROFOR members'

Page 174

1 evidence. In this regard, we need to say that all they stated was their

2 opinion or their conviction. These witnesses, the ones referred to by the

3 OTP, and this is something that we analysed in our appeals brief, these

4 witnesses did not state in a single case that they were eye-witnesses to

5 that incident, that they were present on the spot, that they saw the

6 victims, or anything of the sort. We just heard what my learned friend

7 said about the journalist who came here to testify, who came here and told

8 us that he saw a woman who fell victim. This is yet another case of

9 generalisation, and this Chamber said that such general claims cannot be

10 used to support allegations of unlawful conduct.

11 I also need to mention that the OTP, in all scheduled incidents,

12 analysed before this Chamber, and we wish to reiterate our position that

13 they are not reflective of the general situation in Sarajevo at the time.

14 When it comes to all sniping scheduled incidents, we need to say that not

15 in a single case did any member of SRK, let alone General Galic, receive

16 notice that such an incident took place and who may have participated in

17 it and who could have been the victim. I think that it is beyond dispute,

18 I think that it was established beyond dispute by the Trial Chamber that

19 demarcation lines between warring parties, that is to say the 1st Corps of

20 the BH army, which at the time of its inception until the end of war had

21 at least 30 brigades and that each brigade had at least 4.000 to 5.000

22 soldiers, nobody ever provided evidence that any member of the SRK

23 received notice of these incidents, nor was it ever established that these

24 incidents were caused by people who were in the positions controlled by

25 the SRK forces.

Page 175

1 Let me give you a specific example. Incident number 2, the

2 Prosecution adduced evidence by hearing witnesses, parents of a victim who

3 allegedly died in the incident. No other evidence, apart from the

4 evidence provided by these two witnesses, the parents, who are totally --

5 whose evidence was totally inconsistent, no other evidence was adduced,

6 not even the showing of the map of this specific incident. That was

7 identified by Mr. Karavelic, the 1st Corps commander, who marked every

8 map regarding each separate incident to indicate where the demarcation

9 lines were, so he was unable to mark the positions of the

10 Sarajevo-Romanija Corps on any of these maps, including the map that

11 refers to incident 2. The Defence indeed referred to this incident in its

12 appellate brief, and General Karavelic in fact only mentioned for this

13 incident that this was no man's land. So it was impossible to determine

14 the exact position of the SRK personnel and of the BH army personnel, so

15 that we could say -- so that it could be said this is where they fired

16 from.

17 As far as the Jewish cemetery is concerned and the allegations

18 that fire was opened from there, the Defence presented sufficient

19 evidence, and in fact so did the Prosecution, regarding certain specific

20 incidents. So, to be quite specific, from the positions at the Jewish

21 cemetery, this is incident 24, it is incontestable that the positions both

22 of the Sarajevo-Romanija Corps and the BH army were in fact in the area of

23 the Jewish cemetery, so we cannot rule out the possibility specifically

24 talking about this incident 24 that in an area where combat was going on

25 all the time, both in that part of the city and in fact throughout the

Page 176

1 city, that we cannot rule out the possibility there could -- that there

2 could have been a stray bullet in an exchange of fire.

3 Now, as regards incident number 5, the Defence and the Judge

4 Nieto-Navia in fact claim that this was an incidental injury, in this case

5 in fact the person died, the injured person died, but the majority of the

6 Judges also do not rule out that there was a possibility that this was a

7 ricochet. The majority took this into account but not to a sufficient

8 extent.

9 So in line -- in view of the standard set by the Chamber and the

10 opinion of Judge Nieto-Navia, there is no evidence with regard to this

11 incident and any other incident that was analysed and studied by the

12 Defence to meet those standards, with regard to the sniping incidents so

13 the Defence maintains that these incidents cannot be considered as part of

14 the campaign, particularly not when it comes to the unscheduled incident

15 that my learned colleague tried to make part of the incidents that were

16 considered by the Chamber.

17 The Defence will also say something about the views of the UN

18 experts. The views -- the opinion that the Trial Chamber never in fact

19 determined what was the military target in each military action, and we

20 will also say something about the unscheduled incidents.

21 We also would like to stress that because the part of the town

22 controlled by the BH army forces, one could never rule out the collateral

23 damage to civilian -- to civilians in those parts of the town, the Trial

24 Chamber failed to take that into account.

25 The Defence believes that it has responded in detail to all the

Page 177

1 issues raised by the Prosecution -- just a moment. I need to consult my

2 colleague.

3 [Defence counsel confer]

4 MS. PILIPOVIC: [Interpretation] Yes, Your Honour. I think we

5 actually -- that this actually completes our presentation in response to

6 the presentations by the Prosecution that we covered all the issues raised

7 by them.

8 JUDGE POCAR: I thank you, Madam Pilipovic.

9 Is there any question from the Bench? If it's not the case, this

10 concludes the consideration of the Defence appeal in this case.

11 We'll now break and reconvene at 4.30 to consider the Prosecution

12 appeal.

13 The meeting is adjourned.

14 --- Recess taken at 3.58 p.m.

15 --- On resuming at 4.32 p.m.

16 JUDGE POCAR: So as scheduled, we will now resume to consider the

17 appeal of the Prosecutor. I give the floor to the Prosecution for 20

18 minutes for their arguments.

19 MS. BRADY: Thank you, Your Honour. And good afternoon to the

20 Bench.

21 This Chamber recently held in the ICTR decision of Gacumbitsi when

22 substituting a sentence of life imprisonment in place of the Trial

23 Chamber's 30-year one, and I quote from paragraph 205: "It is the

24 Appeals Chamber's prerogative to substitute a new sentence when the one

25 given by the Trial Chamber simply cannot be reconciled with the principles

Page 178

1 governing sentencing at the Tribunal."

2 This is such a case calling for your exercise of that prerogative.

3 A 20-year sentence is a manifestly inadequate one for a military commander

4 in charge of a force of 18.000 men and a substantial weapon capacity, who

5 used that force over a two-year period to order a campaign of deliberately

6 indiscriminate and direct attacks against civilians in a city of 300.000

7 inhabitants, designed to cause terror to that population and which

8 resulted in the deaths of hundreds of civilians, serious injury to several

9 thousand more and the infliction of terror across that civilian

10 population.

11 The majority discernibly erred in its sentencing discretion when

12 so deciding and we ask for the imposition of a life sentence to reflect

13 General Galic's culpability. Our arguments are set out in full in our

14 appeal brief, but today I will highlight the three most important reasons

15 which show that the majority erred in imposing a 20-year sentence.

16 Firstly, that the 20-year sentence fails to properly reflect the

17 gravity of the crimes. Secondly, that it fails to properly reflect

18 General Galic's role in ordering these crimes. And thirdly, that it fails

19 to properly reflect the senior position which he abused to carry out these

20 crimes.

21 Turning first to the gravity of the criminal conduct, General

22 Galic's crimes are among the worst to come before this Tribunal, and 20

23 years does not reflect their manifest gravity. In the Krstic case, this

24 Appeals Chamber imposed a 35-year sentence on General Krstic for his role

25 in aiding and abetting the massacre of several thousand men and boys in

Page 179

1 Srebrenica and deporting them from the region, all of which took place in

2 the space of approximately one week. In the Stakic case, this Chamber

3 imposed a sentence of 40 years on the mayor of a municipality, the

4 Prijedor municipality, for his role in committing, through a joint

5 criminal enterprise, a persecutory campaign of murder, imprisonment and

6 deportation against civilians for a period of some five months.

7 The mind generally finds it easy to comprehend the gravity of

8 crimes of such magnitude when they occur in these relatively short

9 time-frames. There is something about the instantaneousness of the crime

10 which makes it so shocking. But why should a deliberate campaign

11 conducted over a period of some years, two years, causing hundreds of

12 thousands of people to live in fear for their lives every time they

13 ventured out to conduct the most basic aspects of their lives and which

14 caused the deaths of hundreds and serious injury to thousands of people be

15 treated any more leniently? In our submission, it should not and the

16 majority erred in doing so.

17 First, Your Honours, the crime of terror itself must rank among

18 the gravest of war crimes in this jurisdiction. Not only does it

19 encapsulate the gravity which is associated with the unlawful attacks

20 directed at civilians causing death or serious injuries, but it has the

21 additional feature that these acts of violence are carried out with a

22 particularly heinous purpose, to spread terror among the civilian

23 population.

24 Added to that, here, the terror was not merely aimed at but

25 achieved, as is evident in the Trial Chamber's findings in paragraph 592

Page 180

1 and 764. In fact, it was achieved so successfully that it really is

2 difficult to properly capture the victimisation that took place in words,

3 to say that the civilian population of Sarajevo, with its 300.000

4 inhabitants, was terrorised for two years seems hardly sufficient.

5 Because what did this mean in practical terms for those

6 inhabitants? Well, for many, it meant living in basements for most of the

7 war. For those unfortunate enough to have to step out on to the streets,

8 which was basically everyone at some point in time, because everyone must

9 attend to the minimal necessities of life, such as getting water for

10 themselves and their families, getting firewood for heating, tending to

11 gardens to grow food, travelling to medical facilities to seek medical

12 attention or attending the weddings or funerals of loved ones, it meant

13 being exposed to the daily and deliberate sniper fire and the

14 ever-frequent indiscriminate mortar attacks directed their way and the

15 consequential state of fear that that engendered.

16 Earlier today, in the presentation of my colleague, Ms. Jarvis, we

17 heard a particularly compelling description given by Witness Henneberry

18 who noticed frequent fire around supper time for no reason other than, and

19 I quote from him, "Making people run building to building on their toes."

20 To him, it was the application of psychological warfare on civilians, and

21 it worked because they were, in his words and the words of many witnesses

22 who gave evidence before the Trial Chamber, indeed terrorised and on

23 edge. And for the thousands of people who were especially unlucky, it

24 meant being subjected to serious injuries and indeed death.

25 People who gathered at sporting events, at markets, even groups of

Page 181

1 children playing were frequently the target of mortars. People travelling

2 through the city, using public transport, riding bicycles, trying to get

3 across an intersection were targeted by sniper fire. And, as Mr. Ierace

4 explained in his submissions, over time, the civilians did try and adapt

5 to these miserable conditions and in some ways they got better at it.

6 They learnt techniques such as putting up containers and others devices to

7 try and protect themselves from the sniper fire, but the snipers even

8 found ways around that; targeting victims when they have to leave their

9 cover or could be seen through the gaps of the containers.

10 Leaving to one side the gravity of what actually took place, the

11 crimes that occurred in Sarajevo, the 20-year sentence also fails to

12 properly reflect General Galic's role or participation in the crimes and

13 nor the abuse of his very senior position which he engaged in to carry out

14 that role.

15 You'll recall that the majority found that he ordered these

16 crimes. In our submission, it erred in not giving proper weight to the

17 seriousness of this mode of his participation, this mode of his liability,

18 when sentencing him to only 20 years' imprisonment.

19 We are not speaking about ordering on one or two occasions. We

20 are talking about Galic maintaining and continuing a campaign of this

21 magnitude on a daily basis for the entirety of his two-year command. His

22 mens rea was being refreshed on a weekly, if not daily basis by his

23 receiving information as to the effects of this deliberate -- debilitating

24 and destructive campaign. And in spite much evidence was heard from the

25 UN and international witnesses about these protests, and in spite of

Page 182

1 regular, often daily protests from such representatives, Galic would

2 instead cynically modulate the level of attack, oscillate it so as to

3 adjust the outside perception of the campaign and thereby demonstrate even

4 further his fine degree of command and control over the campaign's

5 implementation.

6 ICTY -- many cases before this Tribunal, such as Kordic, have

7 acknowledged the seriousness of an ordering finding and its impact on

8 sentencing, and last year in the Semanza case the Appeals Chamber

9 increased that accused's sentence for ordering from 15 years to 25 years

10 observing that, and I quote from the Semanza judgement: "A higher

11 sentence is likely to be imposed on a principal perpetrator vis-a-vis an

12 accomplice, in that case of genocide, and on one who orders rather than

13 merely aids and abets exterminations."

14 The final point I wish to address concerns General Galic's very

15 senior position when he committed these crimes. Now, the Defence argues

16 in its appeal against sentence, we didn't hear today from the Defence on

17 its appeal against sentence, but one of its arguments there is that the

18 majority erred in regarding as an aggravating factor the fact that he had

19 a very senior position and repeatedly breached his public duty from this

20 senior position, when it had already been encompassed or taken into

21 account in the ordering conviction.

22 The majority neither double counted this factor nor erred in

23 treating his very senior position as an aggravating factor. In fact, as

24 the Blaskic Appeals Chamber held in paragraph 91, where both Article 7(1)

25 and 7(3) responsibility are alleged, and where the legal requirements

Page 183

1 pertaining to both are met, a Trial Chamber should enter a conviction on

2 the basis of 7(1) only and consider the accused's superior position as an

3 aggravating factor in sentencing.

4 Indeed, in our submission, the majority erred in giving too little

5 weight to his senior position as an aggravating factor. As corps

6 commander, General Galic held one of the highest military positions in the

7 army of the Republika Srpska. When he assumed command in September 1992,

8 he inherited a pre-existing campaign to target civilians. And what did he

9 do? As the commander of such a powerful military force of 18.000 men, did

10 he protest or did he take steps to minimise the campaign? No, he did not.

11 Did he ensure that his men acted within the minimal constraints on warfare

12 mandated by international humanitarian law? No, he did not. To the

13 contrary, he issued orders to his subordinates to continue that campaign,

14 and in short, he used his very senior position to abuse the power

15 entrusted to him, and this has not been sufficiently reflected in the

16 sentence.

17 To conclude, Your Honours, a 20-year sentence doesn't adequately

18 reflect the nature and the scale of the crimes committed upon the

19 civilians of Sarajevo, the protracted time-period in which they took

20 place, Galic's daily renewal of his criminal involvement in the crimes,

21 the extreme victimisation which resulted from this deliberate campaign,

22 the very senior position he held and the seriousness arising both from the

23 fact that he ordered this campaign and ordered it so as to spread terror.

24 Finally, his subjected features are not such that they would mitigate a

25 sentence of life imprisonment which can be, in the circumstances, the only

Page 184

1 condign one.

2 Those complete my submissions.

3 JUDGE POCAR: I thank you, Ms. Brady.

4 Any questions? If there are none, I turn to the Defence for their

5 submissions. You have 20 minutes for your submissions. You have the

6 floor.

7 MR. PILETTA-ZANIN: [Interpretation] Thank you very much,

8 Mr. President, Your Honours. I have taken note of the submissions made by

9 my colleague, and I will have make the following comments about them.

10 First of all, I must repeat what I've already stated earlier on, that is

11 that any procedure governed by international humanitarian law should never

12 be based on the ruins, on the ashes of the rights of a human being and the

13 right of an accused to defend himself as part of a fair trial.

14 A number of things have been said just now. We've been told about

15 the mens rea. We've been told that the rank and the functions of General

16 Galic explain that he should be punished even more than he has been done,

17 and we agree. We agree with the Prosecution that the Trial Chamber erred,

18 but it erred not because it handed down a sentence of 20 years but because

19 it handed down a sentence at all. Because what the Trial Chamber was to

20 do was to acquit General Galic, and it was to acquit him based on this

21 mens rea. Because instead of saying that what General Galic did in

22 Sarajevo without knowing whether such and such attack, as Markale, was

23 really a deliberate attack based on solid evidence, contrary to the

24 evidence I quoted earlier on that show that he's not guilty, what had to

25 be done was to consider what Galic did as part of this mens rea. We know

Page 185

1 that there aren't any written orders, there aren't any oral orders that

2 would have been recorded, intercepted. Apparently he was not personally

3 informed of any incidents.

4 Henneberry, this witness was mentioned, but you forgot to mention

5 that Henneberry was suffering from mental problems. He was not sure

6 whether what he was saying was something he had really seen, experienced.

7 You can check that whilst -- by reading the transcript of his testimony.

8 We know that that witness had a notebook where he would take notes. And

9 this Henneberry, this witness who was quoted so many times, he's the one

10 who says that Galic was according -- acting according to a plan.

11 But what does Henneberry say? Well, when you open his notebook,

12 you find no trace of this supposed discussion with General Galic. And the

13 witness Henneberry says, "Well, don't worry, I wrote to the United

14 Nations," but then when you ask the Prosecution where are the complaints

15 made to the United Nations, nothing comes up. There is nothing.

16 So once again, I'd like to repeat it. If you want to use your

17 witnesses, if you want to quote the witnesses, okay, but you have to do it

18 in a comprehensive manner. If you are talking about witnesses who tried

19 to talk and did talk to other witnesses before they are heard by the

20 Chamber. Then these witnesses should not be considered, should not be

21 taken into account.

22 Now I'd like to move on to the following question. The fact that

23 some things that General Galic did were not considered, things that cannot

24 be part of the supposed plan alleged by the Prosecution.

25 Let's take the example of the airport, firing at the airport.

Page 186

1 He's being told you're guilty because you fired at the airport. But what

2 did General Galic do? When General Galic understood that the runways of

3 the airport, that the Serbs had transferred to the United Nations for

4 humanitarian purposes, when he realised that these runways were used by

5 the BiH forces, what did he do? Did he fire on people? No. What he did

6 was to get in touch with the United Nations officials and tell them, "But

7 be careful, you are responsible now, you are responsible, you have to

8 prevent that this airport that we transferred to you for humanitarian

9 purposes is now used for other purposes. That's what he did. Can we

10 really accept that such an action that -- which aim was to prevent

11 civilian casualties is the proof of terror or of acts that are contrary to

12 international humanitarian law? No.

13 Did General Galic want to keep all this people imprisoned in

14 Sarajevo in order to fire at them at random? No, not at all. General

15 Galic, he's the man who was one of the first to design these famous blue

16 roads in Sarajevo that were -- that would allow the population to leave

17 without any risk. And we know that it's the opposing party that refused

18 to accept that these roads should be organised in order to add a political

19 element to the fight, to the war, and unfortunately they seemed to have

20 won on that matter.

21 Let me go back to another issue that I find very important as part

22 of the examination of the mens rea, about the blind character, the random

23 character of these shellings. You quoted Witness AD. I'm talking to the

24 Prosecution. You quoted him, but you forgot to say that this witness, at

25 the hearing, stated that when he refused to implement orders that he

Page 187

1 deemed unlawful, in other words he only obeyed orders that were lawful,

2 then his commander did not punish these troops or refer the matter to the

3 chain of command.

4 What does that testimony prove? Two things. First of all, if

5 nothing was reported, then General Galic did not know that these things

6 had taken place. And secondly, when we are asked -- whether he was asked,

7 this witness, why was the fact that you did disobey the order not reported

8 to General Galic, the head of this battalion, this witness, says the

9 following, he says, "Well, it's probably, it's probably because my

10 commander, my superior officer, feared that he was going to be sanctioned,

11 to be punished by General Galic." I think this is very, very clear.

12 These words come from the mouth of Prosecution witnesses and not from

13 Defence witnesses.

14 Mr. President, I did not look at my watch when I started. How

15 much time do I have left?

16 JUDGE POCAR: [Interpretation] According to me, 13 minutes.

17 MR. PILETTA-ZANIN: [Interpretation] Okay, 13 minutes. Thank

18 you. Thank you very much.

19 Yes. We've had a look at the humanitarian issues. We've had a

20 look at the total exclusion zone. General Sibito [phoen], if I'm not

21 mistaken, confirmed the matter at the time. This was implemented very

22 quickly and within the time-frame set by General Galic.

23 And another thing I'd like to mention was in the trial record,

24 have we ever seen any evidence of a plan in writing or orally? No. There

25 is no evidence to that effect. They decided to go in reverse order, maybe

Page 188

1 to reach someone else, but no plan was ever found. Yes, there is a

2 document, that is, the minutes of a political meeting attended by General

3 Galic. I don't have the exact reference here. But at the end of that

4 meeting, and for the Prosecution apparently it's the only key document

5 that proves that this plan existed, what does General Galic, at the end of

6 this document -- at the time he was only a Lieutenant Colonel or a

7 Colonel. General Galic stated the following. I've got the wording in

8 English in front of me, but I'll quote it in Serbian, or from what I

9 remember of the Serbian. He said, "We have to defend ourselves

10 but 'bes rata,' without war."

11 In other words, we have to defend ourselves without using the

12 resources, the means of war. That's what General Galic said, and that's

13 to be found in the exhibit that have been handed just now from the

14 commander of the Partizan Brigade. Let me check that I've quoted this

15 accurately. "Bes rama, bes rata," [phoen] in other words, defend without

16 war. And this is Exhibit -- well, I can give you the electronic reference

17 number, 00437694, 00437694. This is an exhibit that was produced on the

18 14th of May, 1992, but my copy is of too poor a quality for me to be able

19 to read out, to make out the exhibit number. We can find it in the trial

20 record.

21 So these are the tangible, the actual, the practical elements,

22 practical evidence that are supposed to prove that such a plan existed.

23 In other words, Your Honours, nothing, we have nothing. All we have is

24 something that proves that Galic wanted to defend himself without using --

25 without having recourse to war.

Page 189

1 THE INTERPRETER: A quote in Latin.

2 MR. PILETTA-ZANIN: I have to come back to witnesses UN -- or to

3 the UN witnesses to say the following: Yes, Galic was in command. And

4 today, because the witnesses said that when there were complaints, Galic

5 intervened for firing to stop. But now what is being told is that, no,

6 not only he tried to control his troops, what is being said is that he

7 tried to modulate pressure. This is a last resort theory that has been

8 dreamt up by the Prosecution and that goes against the evidence.

9 Let me give you the following transcript references: Page 11193

10 to 11196, Henneberry, this famous witness mentioned earlier on. Page 8572

11 to 8573, Hamill, who is quoted at paragraph 692 of the judgement.

12 Transcript page 8460 and Exhibit DP35, transcript page 17731 and 177502,

13 where we see that these witnesses all say that when meetings took place

14 with General Galic, General Galic, what did he do? Well, he made sure

15 that these meetings were translated into actions.

16 There is also something that is very peculiar about the way the

17 Tribunal has -- or the Trial Chamber has determined the mens rea of the

18 accused. I'm thinking of what is at page 300 of the judgement, and I'm

19 thinking of the considerations of the Trial Chamber with regard to

20 Witness AD, who was clearly saying that his own superior did not complain

21 because he thought that he was going to be punished by the higher chain of

22 command or by the superior command of the corps.

23 When the time comes for the Trial Chamber to analyse all this, it

24 comes to the following conclusion, but we don't know why: The Trial

25 Chamber comes to the conclusion that because the SRK corps, army corps,

Page 190

1 was perfectly organised, it can only be on the order of General Galic that

2 this commander had opened fire. No other explanation is provided in the

3 judgement. However, this is contrary to many other witness statements and

4 testimony, including the testimony of a General - I have to quote from

5 memory, but I'd like to point to his testimony - I'm talking about General

6 Briquemont, who, when he came to testify here, stated, as a superior

7 officer representing the United Nations, that he could not exclude - and

8 I'm quoting from memory in English - could exclude that local chiefs,

9 independent, had opened fire; in other words, without the knowledge and

10 without the intervention of the corps commander.

11 I have come to the end of my submissions. Let me just add the

12 following. My colleague will now say a few words.

13 MS. PILIPOVIC: [Interpretation] Your Honours, in response to the

14 presentation of my learned friend, I would like first to point out an

15 important fact. The Trial Chamber never established that there was a

16 pre-existing campaign, which is something that the OTP claims that General

17 Galic inherited, the pre-existing campaign, and no such statement exists

18 in the trial judgement. So this is unsupported, what my learned friend

19 said.

20 What would I like to point out? I would like to point out that we

21 stand by everything stated in our appeals brief and in our response. I

22 would also like to mention mitigating factors, and I hope that this

23 Appeals Chamber will take them into account, which is good character, lack

24 of prior convictions of General Galic, and this is something established

25 by the Blaskic trial, as well as General Galic's conduct in pre-trial

Page 191

1 detention where he spent six years. He came to the position of the corps

2 commander from the rank of Colonel. He came overnight, if I may say so,

3 to that position, due to the circumstances and the gravity of the

4 situation in that area, where there was an urban warfare in place, where

5 combat was extremely intense. General Galic overnight had to take over

6 the role of the commander and thus found himself in the situation, and in

7 the area where the conditions for command and control were more than

8 difficult.

9 Our military expert, Mr. Radinovic, spoke of these circumstances

10 that made the role of General Galic extremely difficult. These are all

11 the factors that we hope the Appeals Chamber will take into consideration.

12 Regardless of the gravity of crimes, it is improper to render a

13 sentence proposed by the Prosecution.

14 Another mitigating factor that I would like to bring to your

15 attention are the efforts of General Galic throughout the two years of his

16 command to reconcile the interests of the two parties in that conflict.

17 Throughout his position, throughout his mandate, he worked on disbanding

18 paramilitary formations. The area of responsibility of General Galic was

19 extremely complex and broad, and in that respect it was a limiting factor

20 in terms of the efficiency of the command, chain of command.

21 As a mitigating circumstance, I think that urban warfare needs to

22 be taken into account as well. There was street-to-street combat, and

23 warring sides acted against the Geneva Conventions and Geneva Protocols,

24 paragraph 58. Thank you.

25 JUDGE POCAR: I thank you. I give now the floor to the

Page 192

1 Prosecution for up to ten minutes to reply. You have the floor, Ms.

2 Brady.

3 MS. BRADY: Thank you, Your Honours. Our appeal against sentence

4 proceeded on the basis of the factual findings which have been found by

5 the majority. The response that we've just heard is essentially

6 rechallenging the factual findings of the majority and a further attempt

7 to argue what should have been argued in his main appeal. We've responded

8 to all of these points in our response brief, so I won't go into that now.

9 The other area that he traverses into is in relation to arguments

10 in support of his sentence appeal, such as that he disbanded

11 paramilitaries or supported the use of blue roads. And, again, Your

12 Honours, I point you to our response in the response brief, ground 19, and

13 there is no need to say anything further.

14 I will hand over the floor to Mr. Ierace in just a moment, because

15 I think there are some factual matters that have been raised which Mr.

16 Ierace will address. But I wanted to just briefly speak to the one point

17 he said about the fact that there was no mens rea, it wasn't found. And I

18 point Your Honours to the conclusion of the majority in paragraph 745 of

19 the judgement. The majority found that "the inference is compelling that

20 failure to act for a period of approximately 23 months by a corps

21 commander who has substantial knowledge of crimes committed against

22 civilians by his subordinates and is reminded on a regular basis of his

23 duty to act, upon that knowledge, speaks a deliberate intent to inflict

24 acts of violence on the civilians."

25 He said in passing that essentially no one was giving him notice

Page 193

1 of this or not sufficiently detailed notice of this. I draw Your Honours'

2 attention to the dozens of UN witnesses who gave evidence to the

3 contrary. Time wouldn't allow us to go through that right now, but if I

4 could just point Your Honours at this stage to the evidence of Witness W,

5 especially at transcript T-9565 to 9566 and T-9607 to 9608. The evidence

6 was given in closed session so I'll be a bit cautious about how I refer to

7 it and only refer to the details given in the trial judgement. But if he

8 claims he had no notice of this, then this is a very difficult matter for

9 him to explain.

10 In effect, Witness W complained to Galic on an occasion when a

11 water supply point had been shelled and caused many civilian casualties.

12 Well, Galic's reply had so shocked Witness W, who was a senior UN

13 representative, that he broke off all relations with Galic after that.

14 And I quote from Witness W's testimony at T-9566, as cited in the

15 judgement at paragraph 677, he said, "The explanations given to me by

16 Colonel Galic, it seemed that it was his troops that had attacked the

17 civilians, that his troops did act within the framework of his orders,

18 that he considered it normal that his forces would attack civilians." He

19 continued: "Therefore, I had full reason to describe this as a criminal

20 act and I could not continue to have a dialogue with him in these

21 circumstances."

22 And he wasn't the only one. As I said, there were dozens of

23 witnesses who gave evidence that they had made protests to Galic and very

24 regularly.

25 I'll turn now to Mr. Ierace who will respond to just a few points

Page 194

1 on the factual matters raised. Thank you.

2 MR. IERACE: Thank you, Your Honours.

3 Mr. Piletta-Zanin referred to the evidence of Witness AD, and

4 suggested that my reference to his evidence had been somewhat incomplete.

5 Specifically, Mr. Piletta-Zanin said that the evidence of that witness was

6 that the orders to target civilian facilities, ambulances and the like,

7 came from the brigade commander, but that he thought probably they did not

8 emanate from the accused, from the appellant. That, in fact, was

9 speculation. The witness's evidence was that he didn't know where the

10 orders came from, going up the ranks beyond the office of the brigade

11 commander, and so anything he said beyond that was speculation.

12 Mr. Piletta-Zanin also referred to what one might broadly call the

13 peaceful humanitarian acts of the appellant in support of his contention

14 that he's not guilty of these charges. He referred to the setting up of

15 blue routes and the desire for peace. The setting up of the blue routes

16 occurred in the atmosphere post the Markale market incident. The

17 international outrage at that carnage was such that the SRK came under

18 considerable pressure to agree to UN-managed routes of humanitarian aid

19 into the city; and, secondly, the setting up of a total exclusion zone of

20 heavy weaponry to some distance, some 20 kilometres from the city. There

21 was nothing voluntary in that sense about what the appellant did. He was

22 responding to the pressure from the international community.

23 In a similar vein, whilst he agreed from time to time to

24 anti-sniping agreements, they weren't worth the paper they were written

25 on, as is demonstrated by scheduled sniping incident number 27, a

Page 195

1 13-year-old boy shot whilst window shopping with his family, five or six

2 children playing nearby. Why were they outside on that occasion? Because

3 there was an anti-sniping cease-fire which meant nothing. That was an

4 incident found proved by the Trial Chamber.

5 In relation to the handing over of the airport by the SRK, that

6 happened pre the indictment period and again ultimately as a result of a

7 UN Security Council resolution, 762, which charged UNPROFOR with

8 protecting the airport. And in those circumstances, following that

9 resolution, the SRK handed over the airport.

10 Mrs. Pilipovic, just before the break, referred again to sniping

11 incident 6 and said that there was no evidence of a line of sight from the

12 bell tower to where the victim was shot. The 360-degree photograph

13 demonstrates otherwise when looked at in conjunction with the marked

14 photographs and further photographs that were tendered in relation to that

15 incident.

16 Mr. Piletta-Zanin has again referred, as I understand it, to the

17 incidents of civilian casualties as some sort of evidence of the innocence

18 of the appellant, and it is not such evidence. It reflects, as the

19 majority found, various anti-sniping and anti-shelling measures taken by

20 the populace, and also that there was not a constant barrage with the

21 primary aim of killing as many civilians as possible. That was never the

22 Prosecution case. The Prosecution case was that the intention of the

23 appellant was to inflict terror. He did not need in order to achieve that

24 aim to attempt to kill every civilian in the city, and indeed it would

25 have been very difficult for him to act with that objective when he was

Page 196

1 under the watchful eye of the international community represented as it

2 was by the UN military observers. He had to be far more careful than that

3 and it was only the occasional mortar shell lobbed into the city, any

4 time, anywhere, that could maintain that fear entertained by every

5 Sarajevan civilian that they or their loved ones could be killed any time

6 anywhere.

7 Thank you.

8 JUDGE POCAR: I thank you. This concludes --

9 MR. PILETTA-ZANIN: [Interpretation] I'm not going to make any

10 comments, Mr. President, but there was a problem in the translation. Yes,

11 thank you. I'm not going to make any comments because I'm not entitled to

12 do so, but I would like to stress that there was a major translation

13 problem, when what Ms. Pilipovic said at line 1131, it was not that both

14 parties to the conflict committed acts contrary to the Geneva Conventions,

15 but what she said was that the ABiH army behaved contrary or in

16 contravention to Article 58 of Protocol 1. That's what Ms. Pilipovic

17 wanted to say, and there was a problem in the translation with respect to

18 that comment.

19 JUDGE POCAR: I thank you. We take note of that for the record.

20 As I was saying, this concludes both appeals, the Defence appeal

21 and the Prosecution appeal. Before closing the hearing, Mr. Galic, if he

22 so wishes, may address personally the Bench for a maximum of 15 minutes.

23 So I turn to Mr. Galic. Do you want to address the Bench?

24 THE APPELLANT: [Interpretation] Your Honours, I have full trust in

25 justice, and I believe in what my Defence presented here in court, and I

Page 197

1 have full trust in the authorities that will make the final judgement in

2 this matter. Thank you very much.

3 JUDGE POCAR: I thank you, Mr. Galic.

4 Well, that concludes our hearing today. We will now adjourn and

5 the judgement will be rendered in due course.

6 The meeting is adjourned.

7 --- Whereupon the hearing adjourned at 5.17 p.m.