Case No. IT-98-29-T
I. INTRODUCTION
- Trial Chamber I of the International Tribunal (the “Trial Chamber”) is
seized of a case which concerns events surrounding the military encirclement
of the city of Sarajevo in 1992 by Bosnian Serb forces.
- The Prosecution alleges that “The siege of Sarajevo, as it came to be popularly
known, was an episode of such notoriety in the conflict in the former Yugoslavia
that one must go back to World War II to find a parallel in European history.
Not since then had a professional army conducted a campaign of unrelenting
violence against the inhabitants of a European city so as to reduce them to
a state of medieval deprivation in which they were in constant fear of death.
In the period covered in this Indictment, there was nowhere safe for a Sarajevan,
not at home, at school, in a hospital, from deliberate attack”.1
- In the course of the three and a half years of the armed conflict in and
around Sarajevo, three officers commanded the unit of the Bosnian-Serb Army
(“VRS”) operating in the area of Sarajevo, the Sarajevo Romanija Corps (“SRK”).
The second of those three officers, Major-General Stanislav Galic, is the
accused in this case (“the Accused”). He was the commander for the longest
period, almost two years, from around 10 September 1992 to 10 August 1994.
The Prosecution alleges that over this period he conducted a protracted campaign
of sniping and shelling against civilians in Sarajevo. Two schedules to the
Indictment “set forth a small representative number of individual incidents
for specificity of pleading”.2
At the end of the Prosecution case and pursuant to Rule 98 bis of the
Rules of Procedure and Evidence of the International Tribunal, the Trial Chamber
decided upon the Defence Motion for Acquittal that the Prosecution had failed
to prove some of these scheduled sniping incidents.3
- The Prosecution alleges that General Galic incurs individual criminal responsibility
under Articles 7(1) and 7(3) of the Statute for his acts and omissions in
relation to the crime of terror (count 1), attacks on civilians (counts 4
and 7), murder (counts 2 and 5) and inhumane acts (counts 3 and 6) committed
against civilians in the city of Sarajevo.4
- The Trial Chamber’s task is to decide whether the Prosecution’s allegations
that SRK personnel committed the criminal acts alleged in the Indictment have
been proved beyond reasonable doubt. It must then decide what, if any, criminal
responsibility General Galic incurs for any such criminal acts committed by
SRK personnel.
- This Judgement is rendered by a majority of the Trial Chamber’s judges.5
Judge Nieto-Navia, partly dissenting, appends his opinion to this Judgement.
Portions of this Judgement where he dissents are mentioned as that of the
Majority of the Trial Chamber (or the “Majority”).
- This Judgement is divided into eight Parts. Part I consists of this Introduction.
Part II provides a legal framework for the making of legal findings on the
facts to be set out in the following part. In this part, the Trial Chamber
considers the legal elements of violations of the laws or customs of war and
of crimes against humanity, then determines under what circumstances an accused
can be convicted for more than one crime based upon the same set of facts,
and lastly examines the principles affecting the attribution of criminal responsibility.
The factual findings of the Trial Chamber are contained in Part III, beginning
with general observations concerning terminology and evidence; they continue
with a narrative overview of the events leading to the virtually complete
encirclement of the ABiH-held parts of Sarajevo; the facts of the present
case follow, in order to establish whether a campaign of sniping and shelling
against civilians was conducted in Sarajevo by SRK-forces during the Indictment
Period and whether it aimed at spreading terror as alleged by the Prosecution;
finally, the Trial Chamber sets out its legal findings, namely whether the
facts found, if any, constitute crimes. In Part IV of this Judgement, the
Trial Chamber states its legal findings as to the criminal responsibility
of the Accused. Part V addresses matters relating to sentencing and Part VI
sets forth the disposition. Part VII set forth the separate and dissenting
opinion of Judge Nieto-Navia. Finally Part VIII contains four Annexes: the
Indictment against General Galic, the procedural history of the case, a glossary
of terms and cases, and a set of two maps which are not authoritative and
do not necessarily reflect any finding of the Trial Chamber but are attached
exclusively in order to assist readers to better orient themselves.
II. APPLICABLE LAW
- In this second part the Trial Chamber examines elements of the crimes charged
in the Indictment under Articles 3 and 5 of the Statute.
1. Prerequisites of Article 3 of the Statute
- For a crime to be adjudicated under Article 3 of the Statute (violation
of the laws and customs of the war) the Trial Chamber must determine that
a state of armed conflict existed at the time the crime was committed and
that the crime was “closely related” to the armed conflict.6
According to the Appeals Chamber, an “armed conflict exists whenever there
is a resort to armed force between States or protracted armed violence between
governmental authorities and organized armed groups or between such groups
within a State”.7
- In the Tadic Jurisdiction Decision, the Appeals Chamber held that
“Article 3 is a general clause covering all violations of humanitarian law
not falling under Article 2 or covered by Articles 4 or 5”8
and that it “functions as a residual clause designed to ensure that no serious
violation of international humanitarian law is taken away from the jurisdiction
of the International Tribunal.”9
Article 3 thus refers to a broad category of offences, providing a merely
illustrative list in the article itself.10
- According to the same Appeals Chamber Decision, for criminal conduct to
fall within the scope of Article 3 of the Statute, the following four conditions
(“the Tadic conditions”) must be satisfied:
(i) the violation must constitute an infringement of
a rule of international humanitarian law;
(ii) the rule must be customary in nature or, if it
belongs to treaty law, the required conditions must be met;
(iii) the violation must be “serious”, that is to say,
it must constitute a breach of a rule protecting important values, and
the breach must involve grave consequences for the victim; and
(iv) the violation must entail, under customary or conventional
law, the individual criminal responsibility of the person breaching the
rule.11
The Tadic conditions limit the jurisdiction of the Tribunal to
violations of the laws or customs of war that are at once recognized as
criminally punishable and are “serious” enough to be dealt with by the Tribunal.
- The Indictment charges the Accused with violations of the laws or customs
of war under Article 3 of the Statute, namely with one count of “unlawfully
inflicting terror upon civilians” (Count 1) and with two counts of “attacks
on civilians” ( Counts 4 and 7) pursuant to Article 51 of Additional Protocol
I and Article 13 of Additional Protocol II to the Geneva Conventions of 1949.
These offences are not expressly listed in Article 3 of the Statute. Starting
with the crime of attack on civilians, the Trial Chamber will determine whether
the offence can be brought under Article 3 of the Statute by verifying that
the four Tadic conditions are met. The Trial Chamber will also inquire
into the material and mental elements of the offence. It will then repeat
this exercise for the crime of terror.
2. Attack on Civilians as a Violation of the Laws
or Customs of War
(a) Introduction
- Count 4 of the Indictment reads:
Violations of the Laws or Customs of War (attacks on
civilians as set forth in Article 51 of Additional Protocol I and Article
13 of Additional Protocol II to the Geneva Conventions of 1949) punishable
under Article 3 of the Statute of the Tribunal.
- The paragraph introducing Count 4 alleges that the Accused, General Galic,
as commander of the SRK, “conducted a coordinated and protracted campaign
of sniper attacks upon the civilian population of Sarajevo, killing and wounding
a large number of civilians of all ages and both sexes, such attacks by their
nature involving the deliberate targeting of civilians with direct fire weapons.”
- Count 7 of the Indictment is in terms identical to Count 4, except that
the paragraph preceding Count 7 alleges that the Accused “conducted a coordinated
and protracted campaign of artillery and mortar shelling onto civilian areas
of Sarajevo and upon its civilian population. The campaign of shelling resulted
in thousands of civilians being killed or injured.”
(b) First and Second Tadic Conditions
- Counts 4 and 7 of the Indictment are clearly based on rules of international
humanitarian law, namely Article 51(2) of Additional Protocol I and Article
13(2 ) of Additional Protocol II. Both provide, in relevant part, that: “The
civilian population as such, as well as individual civilians, shall not be
made the object of attack.” The first Tadic condition, that the violation
must constitute an infringement of a rule of international humanitarian law,
is thus fulfilled.
- As for the second Tadic condition, that the rule must be customary
in nature or, if it belongs to treaty law, that the required conditions must
be met, the Prosecution claims that the parties to the conflict were bound
by Article 51 of Additional Protocol I and Article 13 of Additional Protocol
II as a matter of both treaty law and customary law.12
In relation to the latter, “the prohibition on attacks against civilians [...]
in Article 51 and 13 of Additional Protocols I and II reflect[s] customary
international law applicable to all armed conflicts, international or non-international
in character, at the time the offences material to the present Indictment
are alleged to have been committed.”13
The Prosecution further submits that, should the conflict be found to be international,
Additional Protocol I would apply as a matter of treaty law; or, should the
conflict be found to be internal, Additional Protocol II would apply as a
matter of treaty law and moreover the relevant provisions of Additional Protocol
I would also apply because the parties to the conflict were bound by an agreement
concluded under the auspices of the ICRC on 22 May 1992 (“the 22 May Agreement”)
incorporating those provisions.14
According to the Prosecution, it was for this reason that it did not seek
to prove at trial the international or non-international character of the
conflict.15 During closing
arguments, in response to questions put by the Trial Chamber regarding the
applicability of the agreement of 22 May 1992, the Prosecution said that the
parties to the conflict specifically agreed to abide by those provisions irrespective
of whether Additional Protocol I would otherwise be applicable by its terms
to the conflict in Bosnia.16
- The Defence at first did not dispute that “both parties to the armed conflict
were bound to uphold the provisions of the Geneva Conventions and the Additional
Protocols I and II”,17
although it did not specify whether this was on the basis of treaty or custom.
The Defence took a different position in its Final Brief. There it claims
that “the former JNA was not a participant in this armed conflict and that
the conflict escalated after the withdrawal of the JNA from Bosnia and Herzegovina
on 19 May 1992.”18 It
qualifies the conflict as a “civil war with some elements of religious war”.19
Additionally, the Defence submits that “[n]o matter the content of the Agreement
dated 22 May 1992, which indicates on [a] readiness to apply principles of
protection foreseen by [...] Additional Protocols I and II, the Defence considers
that Additional Protocol I could not be applied in relations between the belligerent
parties”,20 since Additional
Protocol I is limited in its applicability to international conflicts.21
It further states that “it is quite clear that regulations of Additional Protocol
II have to be applied, not International Custom Law.”22
During closing arguments the Defence did not take a clear position regarding
the applicability of the 22 May Agreement, although it expressed “some doubt”
as to its status.23
- The jurisprudence of the Tribunal has already established that the principle
of protection of civilians has evolved into a principle of customary international
law applicable to all armed conflicts.24
Accordingly, the prohibition of attack on civilians embodied in the above-mentioned
provisions reflects customary international law.25
- Moreover, as explained below, the same principle had also been brought
into force by the parties by convention.
- Both warring parties were armed forces in the territory of a State which
was originally part of the Socialist Federal Republic of Yugoslavia. The SFRY
had ratified the Additional Protocols.26
The first Article of each Protocol states its scope of application. Additional
Protocol I regulates international armed conflicts whereas Additional Protocol
II regulates non-international armed conflicts.27
Parties to an armed conflict can also, by agreement, bring into force provisions
of Additional Protocol I, regardless of the nature of the conflict.28
- The Trial Chamber does not deem it necessary to decide on the qualification
of the conflict in and around Sarajevo. It notes that the warring parties
entered into several agreements under the auspices of the ICRC. The first
of these was the 22 May Agreement, by which the parties undertook to protect
the civilian population from the effects of hostilities and to respect the
principle prohibiting attacks against the civilian population.29
With regard to the conduct of hostilities, they agreed to bring into force,
inter alia, Articles 35 to 42 and 48 to 58 of Additional Protocol I.30
- The Trial Chamber, being obliged ex officio to satisfy itself of
the validity of this agreement as a source of applicable law, takes account
of the fact that, in its letter dated 12 June 1995 addressed to the then Prosecutor
of the Tribunal, Richard Goldstone, the ICRC confirmed that the formal conditions
required for the entry into force of this agreement had been fulfilled.31
- Moreover, the parties to the 22 May Agreement reiterated their commitment
to be bound by the agreement and to implement its provisions. The 22 May Agreement
was concluded by representatives of the Republic of Bosnia-Herzegovina, the
Serbian Democratic Party, and the Croatian Democratic Community. The same
three parties, by the same representatives,32
subsequently signed three agreements and one declaration, the subject-matter
of which was the implementation of the 22 May Agreement. On 23 May 1992, the
parties convened “to discuss the implementation of the Agreement of 22 May
1992” and signed another agreement whereby they decided to each appoint a
liaison officer to form a commission which would work under the auspices of
the ICRC towards the resolution of humanitarian issues.33
The parties convened again on 4 to 6 June 1992 and concluded an agreement
dated 6 June (“the 6 June Agreement ”) whereby they adopted a plan of action
designed to ensure the safety of the ICRC while carrying out its activities.
To this end the agreement specifies that the parties must “ensure regular
meetings of the Liaison Officers’ Commission, organized under ICRC’s auspices”,34
“enforce respect for the red cross emblem, in accordance with Article 3 of
Agreement No. 1 signed in Geneva on 22 May 1992”,35
and “undertake to ensure that the principles and rules of international humanitarian
law and, in particular, Agreement No. 1 of 22 May 1992 are known to all combatants
and to the civilian population”.36
On 27 August 1992, at a conference in London, each party37
also signed an identically phrased unilateral declaration called the “Programme
of Action on Humanitarian Issues Agreed Between the Co-Chairmen to the Conference
and the Parties to the Conflict” (the “Programme of Action on Humanitarian
Issues ”). By this declaration each party recognized that:
(i) all parties to the conflict are bound to comply
with their obligations under International Humanitarian Law and in particular
the Geneva Conventions of 1949 and the Additional Protocols thereto, and
that persons who commit or order the commission of grave breaches are
individually responsible […]
(viii) that all such action should be in accordance
with the agreement with the parties reached in Geneva on 22 May under
auspices of the ICRC.38
Finally, on 1 October 1992, the parties concluded an “Agreement on the
Release and Transfer of Prisoners”, “on the basis of the Agreement of 22
May 1992.” The preamble to this agreement further refers to Chapter IV of
the 6 June Agreement and the humanitarian plan of action accepted by the
parties’ leaders in London on 27 August 1992.39
- The Trial Chamber finds that by virtue of the 22 May 1992 Agreement the
parties to the conflict clearly agreed to abide by the relevant provisions
of Additional Protocol I protecting civilians from hostilities. Therefore,
Article 51, along with Articles 35 to 42 and 48 to 58 of Additional Protocol
I, undoubtedly applied as conventional law between the parties to the conflict,
including the VRS and the ABiH. The Trial Chamber thus finds that the second
Tadic condition is met.
(c) Third Tadic Condition
- The third requirement of the Tadic Jurisdiction Decision is that
the breach of the rule must be “serious”, that is to say, it must constitute
a breach of a Rule protecting important values and the breach must involve
grave consequences for the victim.40
- The act of making the civilian population or individual civilians the object
of attack (such as attacks committed through a campaign of sniping and shelling
as alleged in the Indictment), resulting in death or injury to civilians,
transgresses a core principle of international humanitarian law and constitutes
without doubt a serious violation of the rule contained in the relevant part
of Article 51(2) of Additional Protocol I. It would even qualify as a grave
breach of Additional Protocol I.41
It has grave consequences for its victims. The Trial Chamber is therefore
satisfied that the third Tadi c condition is fulfilled.
(d) Fourth Tadic Condition
- In accordance with the fourth Tadic condition, a violation of the
rule under examination must incur, under customary or conventional law, the
individual criminal responsibility of the person breaching the rule.42
- The Appeals Chamber has found that “customary international law imposes
criminal liability for serious violations of common Article 3, as supplemented
by other general principles and rules on the protection of victims of internal
armed conflict, and for breaching certain fundamental principles and rules
regarding means and methods of combat in civil strife.”43
It has further expressly recognized that customary international law establishes
that a violation of the principle prohibiting attacks on civilians entails
individual criminal responsibility.44
- It should be noted that the intention of the States parties to Additional
Protocol I to criminalize violations of Article 51(2) of Additional Protocol
I is evidenced by the fact, mentioned above, that an attack on civilians is
considered a grave breach of the Protocol, as defined by Article 85(3)(a)
therein.45 The Trial Chamber
has also noted that the “Programme of Action on Humanitarian Issues ” recognized
that those who committed or ordered the commission of grave breaches were
to be held individually responsible.46
- Moreover, national criminal codes have incorporated as a war crime the
violation of the principle of civilian immunity from attack.47
This war crime was punishable under Article 142 of the 1990 Penal Code of
the Socialist Federal Republic of Yugoslavia.48
In the Republic of Bosnia-Herzegovina it was made punishable by a decree-law
of 11 April 1992.49 National
military manuals also consistently sanction violations of the principle.50
For instance, paragraph 33 (2) of the 1988 Yugoslavia Regulations on the Application
of International Laws of War in the Armed Forces of the SFRY condemns as war
crimes “attack on civilians” and “deliberately bombing of the civilian population”.51
- It therefore follows that serious violations of the principle prohibiting
attacks on civilians incur individual criminal responsibility under the laws
of war, and that this was already the case at the time relevant to the Indictment.
The fourth Tadic condition is met.
(e) Material and Mental Elements
- The Trial Chamber will now consider the material and mental elements of
the offence of attack on civilians.
(i) Arguments of the Parties
- The Prosecution submits that the crime of attack on civilians comprises
the following elements: (1) an attack resulted in civilian deaths, serious
injury to civilians, or a combination thereof; (2) the civilian status of
the population or of individual persons killed or seriously injured was known
or should have been known to the perpetrator; and (3) the attack was wilfully
directed at the civilian population or individual civilians.52
It relies on the second paragraph of Article 51 of Additional Protocol I as
the legal foundation of this offence.53
- The Prosecution invokes Articles 50 and 52 of Additional Protocol I to
define the notions of civilians, civilian objects, and military objectives
in the context of this crime.54
It maintains that an attack is unlawful if the victims are civilians not taking
active part in hostilities, and that the presumption enshrined in Article
50(1) of Additional Protocol I is the basis for determining a victim’s civilian
status.55 Among the factors
relevant to establishing the perpetrator’s knowledge of the status of the
victims are: “(1) the physical appearance of the victims, including their
gender, age, physical condition, dress and the character of the objects in
their possession or close to them; and (2) the actions of the victims at the
time they are killed or injured.”56
- The Prosecution maintains that the principles of distinction and proportionality,
as set forth in the four 1949 Geneva Conventions and the Additional Protocols
thereto, “lie at the heart of unlawful attack charges”.57
It states that the prohibition of attack on civilians is founded upon the
principle of distinction, which requires commanders to distinguish between
the civilian population and combatants and between civilian objects and military
objectives at all times, and accordingly to direct hostilities only against
military objectives.58
The Prosecution suggests that in accordance with this principle, the following
types of attack are unlawful: (1) attacks deliberately directed against the
civilian population as such, whether directed at particular civilian objects
or at civilian areas generally ; (2) attacks aimed at military and civilian
objectives without distinction; and (3) attacks directed at legitimate military
objectives, which cause civilian losses clearly disproportionate to the military
advantage anticipated.59
- In its analysis of the principle of proportionality,60
the Prosecution states that in order to establish the proportionality of a
military attack, “the anticipated advantage to be gained from the particular
military activity ” must be weighed against “the probable civilian losses”.61
When seeking to establish whether the proportionality principle is violated,
the Prosecution urges the Trial Chamber to analyze the “concrete and direct
military advantage” at the level of each sniping and shelling incident,62
and to consider whether the precautionary provisions contained in Article
57 of Additional Protocol I were complied with.63
It submits that the term “legitimate military objective” should be understood
to “denote a military objective which may be lawfully targeted at the moment
the commander makes the decision to launch the attack”, in accordance with
the precautions laid out in Article 57(2)(b) of Additional Protocol I.64
As for the obligation of defending commanders to minimize casualties of civilians
under their control contained in Article 58 of Additional Protocol I, the
Prosecution takes the view that “this obligation is conditioned by what is
deemed feasible” It further submits that failure of the defending party to
comply with the obligation expressed in this provision does not relieve an
attacking party of its duty to respect both the principle of distinction and
the principle of proportionality when launching an attack.65
- The Defence does not challenge the Prosecution’s submissions regarding
the elements of the crime of attack on civilians or offer an alternative definition
of the offence. It maintains that a civilian is a person who has “no connection
with the activities of the armed forces” and claims that this cannot be proven
by merely describing the age, clothing and activity at the time of the incident,
or physical attributes of an individual.66
According to the Defence, in order to determine the civilian status of a victim,
“its assignments in the specified period of time” must be established.67
- The Defence submits further that the essence of the principle of proportionality
“is to avoid infliction of excessive suffering to all those on the opposite
belligerent side, whether civilians or soldiers”.68
It states that “the above mentioned principle is based upon two elements:
the principle of soldier’s efficiency, and the principle of humanitarianism”.69
- The Defence mentions the obligation of the parties to an armed conflict
to undertake the precautionary measures against the effects of attacks in
order to protect civilians in their own territory.70
It does not however raise the issue of whether failure to remove one’s own
civilians from dangerous circumstances would justify a violation by enemy
forces of Article 51(2) of Additional Protocol I; it merely claims that it
is difficult to avoid civilian casualties when the obligation is not complied
with.71
(ii) Discussion
- Although the Indictment refers in general terms to Article 51 of Additional
Protocol I, the Trial Chamber understands the first sentence of the second
paragraph of that article to be the legal basis of the charges of attack on
civilians in Counts 4 and 7. This sentence will hereinafter be referred to
as “the first part” of the second paragraph of Article 51 of Additional Protocol
I, or simply as the “first part of Article 51(2)”.
- The constitutive elements of the offence of attack on civilians have not
yet been the subject of a definitive statement by the Appeals Chamber. In
only two cases before the Tribunal have persons been charged and tried of
attack on civilians under Article 3 of the Statute pursuant to Article 51(2)
of Additional Protocol I. In each case a brief exposition was given of the
offence, together with the offence of attacks on civilian property. In the
Blaskic case the Trial Chamber observed in relation to the actus
reus that “the attack must have caused deaths and /or serious bodily injury
within the civilian population or damage to civilian property. [...] Targeting
civilians or civilian property is an offence when not justified by military
necessity.”72 On the
mens rea it found that “such an attack must have been conducted intentionally
in the knowledge, or when it was impossible not to know, that civilians or
civilian property were being targeted not through military necessity”.73
The Trial Chamber in the Kordic and Cerkez case held that “prohibited
attacks are those launched deliberately against civilians or civilian objects
in the course of an armed conflict and are not justified by military necessity.
They must have caused deaths and/or serious bodily injuries within the civilian
population or extensive damage to civilian objects”.74
- The Trial Chamber follows the above-mentioned jurisprudence to the extent
that it states that an attack which causes death or serious bodily injury
within the civilian population constitutes an offence. As noted above, such
an attack when committed wilfully is punishable as a grave breach of Additional
Protocol I.75 The question
remains whether attacks resulting in non-serious civilian casualties, or in
no casualties at all, may also entail the individual criminal responsibility
of the perpetrator under the type of charge considered here, and thus fall
within the jurisdiction of the Tribunal, even though they do not amount to
grave breaches of Additional Protocol I. The present Indictment refers only
to killing and wounding of civilians; therefore the Trial Chamber does not
deem it necessary to express its opinion on that question.
- The Trial Chamber does not however subscribe to the view that the prohibited
conduct set out in the first part of Article 51(2) of Additional Protocol
I is adequately described as “targeting civilians when not justified by military
necessity”.76 This provision
states in clear language that civilians and the civilian population as such
should not be the object of attack. It does not mention any exceptions. In
particular, it does not contemplate derogating from this rule by invoking
military necessity.77
- The Trial Chamber recalls that the provision in question explicitly confirms
the customary rule that civilians must enjoy general protection against the
danger arising from hostilities.78
The prohibition against attacking civilians stems from a fundamental principle
of international humanitarian law, the principle of distinction, which obliges
warring parties to distinguish at all times between the civilian population
and combatants and between civilian objects and military objectives and accordingly
to direct their operations only against military objectives.79
In its Advisory Opinion on the Legality of Nuclear Weapons, the International
Court of Justice described the principle of distinction, along with the principle
of protection of the civilian population, as “the cardinal principles contained
in the texts constituting the fabric of humanitarian law” and stated that
“States must never make civilians the object of attack [...].”80
- Part IV of Additional Protocol I, entitled “Civilian Population” (articles
48 to 58), develops and augments earlier legal protections afforded to civilians
through specific rules aimed at guiding belligerents to respect and protect
the civilian population and individual civilians during the conduct of hostilities.81
The general prohibition mentioned above forms integral part of and is complemented
and reinforced by this set of rules. In order to properly define the conduct
outlawed in the first part of Article 51(2) of Additional Protocol I, this
rule must be interpreted in light of the ordinary meaning of the terms of
Additional Protocol I, as well as of its spirit and purpose.82
- As already stated, the first part of Article 51(2) of Additional Protocol
I proscribes making the civilian population as such, or individual civilians,
the object of attack. According to Article 50 of Additional Protocol I, “a
civilian is any person who does not belong to one of the categories of persons
referred to in Article 4(A)(1), (2), (3) and (6) of the Third Geneva Convention83
and in Article 43 of Additional Protocol I.”84
For the purpose of the protection of victims of armed conflict, the term “civilian
” is defined negatively as anyone who is not a member of the armed forces
or of an organized military group belonging to a party to the conflict. It
is a matter of evidence in each particular case to determine whether an individual
has the status of civilian.
- The protection from attack afforded to individual civilians by Article
51 of Additional Protocol I is suspended when and for such time as they directly
participate in hostilities.85
To take a “direct ” part in the hostilities means acts of war which by their
nature or purpose are likely to cause actual harm to the personnel or matériel
of the enemy armed forces.86
As the Kupreskic Trial Chamber explained:
the protection of civilian and civilian objects provided
by modern international law may cease entirely or be reduced or suspended
[...] if a group of civilians takes up arms [...] and engages in fighting
against the enemy belligerent, they may be legitimately attacked by the
enemy belligerent whether or not they meet the requirements laid down
in Article 4(A)(2) of the Third Geneva Convention of 1949.87
Combatants and other individuals directly engaged in hostilities are considered
to be legitimate military targets.88
- The civilian population comprises all persons who are civilians, as defined
above.89 The use of the
expression “civilian population as such” in Article 51(2) of Additional
Protocol I indicates that “the population must never be used as a target or
as a tactical objective”.90
- The presence of individual combatants within the population does not change
its civilian character.91
In order to promote the protection of civilians, combatants are under the
obligation to distinguish themselves at all times from the civilian population;
the generally accepted practice is that they do so by wearing uniforms, or
at least a distinctive sign, and by carrying their weapons openly. In certain
situations it may be difficult to ascertain the status of particular persons
in the population. The clothing, activity, age, or sex of a person are among
the factors which may be considered in deciding whether he or she is a civilian.
A person shall be considered to be a civilian for as long as there is a doubt
as to his or her real status.92
The Commentary to Additional Protocol I explains that the presumption of civilian
status concerns “persons who have not committed hostile acts, but whose status
seems doubtful because of the circumstances. They should be considered to
be civilians until further information is available, and should therefore
not be attacked”.93 The
Trial Chamber understands that a person shall not be made the object of attack
when it is not reasonable to believe, in the circumstances of the person contemplating
the attack, including the information available to the latter, that the potential
target is a combatant.
- As mentioned above, in accordance with the principles of distinction and
protection of the civilian population, only military objectives may be lawfully
attacked.94 A widely accepted
definition of military objectives is given by Article 52 of Additional Protocol
I as “those objects which by their nature, location, purpose or use make an
effective contribution to military action and whose total or partial destruction,
capture or neutralization, in the circumstances ruling at the time, offers
a definite military advantage”.95
In case of doubt as to whether an object which is normally dedicated to civilian
purposes is being used to make an effective contribution to military action,
it shall be presumed not to be so used.96
The Trial Chamber understands that such an object shall not be attacked when
it is not reasonable to believe, in the circumstances of the person contemplating
the attack, including the information available to the latter, that the object
is being used to make an effective contribution to military action.
- “Attack” is defined in Article 49 of Additional Protocol I as “acts of
violence against the adversary, whether in offence or in defence.” The Commentary
makes the point that “attack” is a technical term relating to a specific military
operation limited in time and place, and covers attacks carried out both in
offence and in defence.97
The jurisprudence of the Tribunal has defined “attack” as a course of conduct
involving the commission of acts of violence.98
In order to be punishable under Article 3 of the Statute, these acts have
to be carried out during the course of an armed conflict.
- In light of the discussion above, the Trial Chamber holds that the prohibited
conduct set out in the first part of Article 51(2) is to direct an attack
(as defined in Article 49 of Additional Protocol I) against the civilian population
and against individual civilians not taking part in hostilities.
- The Trial Chamber will now consider the mental element of the offence of
attack on civilians, when it results in death or serious injury to body or
health. Article 85 of Additional Protocol I explains the intent required for
the application of the first part of Article 51(2). It expressly qualifies
as a grave breach the act of wilfully “making the civilian population
or individual civilians the object of attack”.99
The Commentary to Article 85 of Additional Protocol I explains the term as
follows:
wilfully: the accused
must have acted consciously and with intent, i.e., with his mind
on the act and its consequences, and willing them ('criminal intent’ or
'malice aforethought’); this encompasses the concepts of 'wrongful intent’
or 'recklessness’, viz., the attitude of an agent who, without being certain
of a particular result, accepts the possibility of it happening; on the
other hand, ordinary negligence or lack of foresight is not covered, i.e.,
when a man acts without having his mind on the act or its consequences.100
The Trial Chamber accepts this explanation, according to which the notion
of “wilfully ” incorporates the concept of recklessness, whilst excluding
mere negligence. The perpetrator who recklessly attacks civilians acts “wilfully”.
- For the mens rea recognized by Additional Protocol I to be proven,
the Prosecution must show that the perpetrator was aware or should have been
aware of the civilian status of the persons attacked. In case of doubt as
to the status of a person, that person shall be considered to be a civilian.
However, in such cases, the Prosecution must show that in the given circumstances
a reasonable person could not have believed that the individual he or she
attacked was a combatant.
- In sum, the Trial Chamber finds that the crime of attack on civilians is
constituted of the elements common to offences falling under Article 3 of
the Statute, as well as of the following specific elements:
1. Acts of violence directed against the civilian population
or individual civilians not taking direct part in hostilities causing
death or serious injury to body or health within the civilian population.
2. The offender wilfully made the civilian population
or individual civilians not taking
direct part in hostilities the object of those acts of violence.
- As regards the first element, the Trial Chamber agrees with previous Trial
Chambers that indiscriminate attacks, that is to say, attacks which strike
civilians or civilian objects and military objectives without distinction,
may qualify as direct attacks against civilians.101
It notes that indiscriminate attacks are expressly prohibited by Additional
Protocol I.102 This prohibition
reflects a well-established rule of customary law applicable in all armed
conflicts.103
- One type of indiscriminate attack violates the principle of proportionality.104
The practical application of the principle of distinction requires that those
who plan or launch an attack take all feasible precautions to verify that
the objectives attacked are neither civilians nor civilian objects, so as
to spare civilians as much as possible.105
Once the military character of a target has been ascertained, commanders must
consider whether striking this target is “expected to cause incidental loss
of life, injury to civilians, damage to civilian objectives or a combination
thereof, which would be excessive in relation to the concrete and direct military
advantage anticipated.”106
If such casualties are expected to result, the attack should not be pursued.107
The basic obligation to spare civilians and civilian objects as much as possible
must guide the attacking party when considering the proportionality of an
attack.108 In determining
whether an attack was proportionate it is necessary to examine whether a reasonably
well-informed person in the circumstances of the actual perpetrator,109
making reasonable use of the information available to him or her, could have
expected excessive civilian casualties to result from the attack.110
- To establish the mens rea of a disproportionate attack the Prosecution
must prove, instead of the above-mentioned mens rea requirement, that
the attack was launched wilfully and in knowledge of circumstances giving
rise to the expectation of excessive civilian casualties.111
- The Trial Chamber considers that certain apparently disproportionate attacks
may give rise to the inference that civilians were actually the object of
attack. This is to be determined on a case-by-case basis in light of the available
evidence.
- As suggested by the Defence, the parties to a conflict are under an obligation
to remove civilians, to the maximum extent feasible from the vicinity of military
objectives and to avoid locating military objectives within or near densely
populated areas.112 However,
the failure of a party to abide by this obligation does not relieve the attacking
side of its duty to abide by the principles of distinction and proportionality
when launching an attack.
(f) Conclusion
- The Trial Chamber finds that an attack on civilian can be brought under
Article 3 by virtue of customary international law and, in the instant case,
also by virtue of conventional law and is constituted of acts of violence
wilfully directed against the civilian population or individual civilians
not taking direct part in hostilities causing death or serious injury to body
or health within the civilian population.
3. Terror Against the Civilian Population as a Violation
of the Laws or Customs of War
(a) Introduction
- This section of the Judgement expresses the view of the Majority of the
Trial Chamber. Judge Nieto-Navia attaches a dissenting opinion.
- The first count of the Indictment reads:
Count 1: Violations of the Laws or Customs of War (unlawfully
inflicting terror upon civilians as set forth in Article 51 of Additional
Protocol I and Article 13 of Additional Protocol II to the Geneva Conventions
of 1949) punishable under Article 3 of the Statute of the Tribunal.
- The paragraph introducing Count 1 alleges that the Accused, General Galic,
as commander of the SRK, “conducted a protracted campaign of shelling and
sniping upon civilian areas of Sarajevo and upon the civilian population thereby
inflicting terror and mental suffering upon its civilian population.” This
introductory paragraph is headed “Infliction of terror”. The remaining six
counts are divided into two groups which are headed, respectively, “Sniping”
and “Shelling”. These are evidently descriptive categorizations of the counts,
to which the Majority attaches no particular legal significance. Moreover,
it will transpire in the course of the Majority’s discussion that “Infliction
of terror” is not an appropriate designation of the offence considered here
because actual infliction of terror is not a required element of the offence.
The Majority will henceforth refer to the offence charged in Count 1 as “the
crime of terror against the civilian population”, or simply “the crime of
terror”, a purported violation of the laws or customs of war.113
- The charge, as such, of terror against the civilian population is one that
until now has not been considered in a Tribunal judgement, although evidence
of terrorization of civilians has been factored into convictions on other
charges.114 This is also
the first time an international tribunal has pronounced on the matter.115
After considering the arguments of the Parties, the Majority will examine
in detail the legal foundations and other essential characteristics of the
charge.
(b) Consideration of the Arguments of the Parties
(i) Prosecution
- In its Pre-trial Brief the Prosecution explained its position that the
character of the armed conflict in Sarajevo as international or non-international
was “irrelevant ” to the charges against the Accused.116
This was said to be because the 22 May Agreement117
made Article 51 of Additional Protocol I applicable to the conflict irrespective
of its character.118
Thus the Prosecution did not concentrate in this case on proving the character
of the conflict.
- The Trial Chamber has found that Article 51 was indeed part of the law
regulating the conduct of the parties and that it was brought into operation
at least by the 22 May Agreement. Since the Geneva Conventions and Additional
Protocol I can be extended by agreement to any given conflict, and since the
22 May Agreement was not conditioned upon the Sarajevo conflict having, or
assuming, a certain character (international or non-international), the Prosecution’s
position, as set out above, is correct.
- The Prosecution further maintained that the prohibition against terrorizing
the civilian population amounts to a rule of customary international
law applicable to all armed conflicts. In support of this the Prosecution
cited certain rules on aerial warfare prepared in the 1920s but not finalized,
two UN resolutions from 1994 condemning atrocities in the former Yugoslavia,
and the Spanish penal code from 1995.119
As will be made clear in later discussion, the Majority does not take a position
in respect of this question.
- The Prosecution submitted that the following elements constitute the crime
of terror:
1. Unlawful acts or threats of violence.
2. Which caused terror to spread among the civilian
population.
3. The acts or threats of violence were carried out
with the primary purpose of spreading terror among the civilian population.
In addition, according to the Prosecution’s proposal, there must be a
nexus between the acts or threats of violence and the armed conflict, and
the Accused must bear responsibility for the acts or threats under Article
7 of the Statute.120
- The Prosecution submitted that the first element in the list above, which
is part of the actus reus of the offence, is “broad”, because it encompasses
both acts and threats of violence.121
The Prosecution sees the acts of violence in the present case as consisting
of systematic shelling and sniping of civilians. The Prosecution’s case is
thus limited to these acts. As for “threats”, the alleged shelling and sniping
of civilians created, according to the Prosecution, a constant threat that
more such acts would be perpetrated at any moment.122
The “threats” in the present case are said to be of a kind implicit in the
acts of violence. The Trial Chamber is thus not called upon to determine liability
for threats that are not implicit, in the Prosecution’s sense.
- The “special intent requirement” (element 3) is, according to the Prosecution,
the distinguishing feature of the crime of terror.123
The Prosecution has interpreted “primary purpose” as requiring that “the infliction
of terror upon the civilian population was the predominant purpose served
by the acts or threats of violence. It need not be established that the broader
campaign in the Sarajevo theatre had this as its sole or only objective.”124
Where the special intent, or mens rea, cannot be proven directly, it
may be “inferred from the nature, manner, timing, frequency and duration of
the shelling and sniping of civilians.”125
- “As an element of the offence of terror [...i]t must [...] be established
that terror was in fact caused”.126
In addition to proof of actual infliction of terror, the Prosecution requires
a causal connection between the first and second elements (“2. Which caused...”).
That is, there must have been not only unlawful acts and actual terror experienced
by the population, but also a causal link between the acts and the terror.
“[T]he offence of unlawfully inflicting terror [...] is distinguished also
by its effect , which in the present case was the profound psychological
impact on the population ”.127
The Prosecution does not cite any authority for these submissions.
- “Population”, according to the Prosecution, does not just mean any number
of Sarajevo civilians: “the unlawful shelling and sniping campaigns [had]
the result that much of the civilian population lived in a state of
terror”.128 The implication
that “population” is to be understood to mean the majority of the
population, or at least a large segment of it, is found also in the following
: “The requirement that terror be spread among the civilian population is
satisfied even if certain civilians, or sectors of the population, were not
so affected.”129
- In its preliminary submissions the Prosecution did not provide a legal
definition of “terror” (i.e. of the emotional effect which figures in the
purported second element of the offence), except to refer in a footnote to
a dictionary definition of the word as “extreme fear”.130
In the course of trial, when the Prosecution’s expert on terror (a psychologist)
was heard, terror was again rendered as extreme fear. The Prosecution later
explicitly adopted its expert’s definition.131
- The Prosecution’s legal theory concerning the crime of terror was not elaborated
or modified in later submissions.132
Except for the Additional Protocols, the Prosecution did not cite an authority
for the three elements which, in its view, define the offence. The Majority
makes the preliminary observation that the language of the prohibition common
to the Additional Protocols, that “Acts or threats of violence the primary
purpose of which is to spread terror among the civilian population are prohibited”,133
does not on its face support the Prosecution’s second element, that the acts
or threats of violence must have caused terror to spread among the civilian
population.
(ii) Defence
- The Defence in its preliminary submissions termed the Prosecution’s stand
on the applicable law “unacceptable”, but did not dismiss outright the availability
of the charge. It acknowledged that Article 51 of Additional Protocol I, which
prohibits (in the Defence’s words) “illegal terror inflicted on civilians”,
was binding upon the parties to the conflict.134
- The Defence stated that the intent to inflict terror must be demonstrable:
“If the Prosecution is charging General Galic with having conducted a long-lasting
shelling and sniping campaign designed to terrorize [the] civilian population
[...] it must be established that there existed the intent to inflict terror
on [the] civilian population by shelling and sniping.”135
Lastly, the Defence did not take issue with the actus reus element
“of the criminal act of inflicting terror, as the Prosecution has qualified
it”, namely acts of violence causing civilian casualties.136
- Thus, from the beginning of the case, the Defence joined the Prosecution
in understanding that the scope of the actus reus of terror would be
limited to the acts underlying Counts 4 and 7 of the Indictment (killing or
severe injury of civilians through unlawful attacks), and that “threats” would
not be a significant factor. The Defence’s only comment on threats was on
a theoretical plane, when it stated that for threats of violence to come within
the offence of terror they had to be specifically directed against the civilian
population. “[The threat] must be serious. It must be real. And it must be
capable to cause terror or spread terror among [the] civilian population.”137
- The Defence’s concern about Count 1 appears to have been limited to the
question of multiplication of offences referenced to one and the same set
of acts.138 (This is
taken up by the Trial Chamber in its discussion of the law of cumulative convictions.)
The implication is that the Defence did not contest the existence of a crime
of terror.
- The Defence’s final written submissions on Count 1 repeat the submissions
in its Pre-trial Brief.139
However, in another part of its Final Brief, the Defence notes the Prosecution’s
position that “the civilian population was the subject of illegal attacks
and terror [etc.]”,140
and then states:
In order to accept the above mentioned, unfounded Prosecution’s
conclusions, the Defence’s viewpoint is that the Prosecution must prove
the following:
a) The exact military actions that were conducted against
the illegal targets and by which means (i.e. shelling or sniping), including
the exact time and place,
b) That, as part of these illegal actions, there was
intention of targeting the civilians with the aim to terrorize,
c) That the intention to kill the civilians existed,
d) That the intention to inflict injuries, other than
killings existed.141
The difference between this list (which may or may not have been intended
by the Defence as an alternative definition of the offence) and the Prosecution’s
definition of the elements of the crime of terror is that the Defence does
not seem to require proof that the civilian population did, in fact, experience
terror (the second element in the Prosecution’s list), but does require
proof of the perpetrator’s intent to kill or injure civilians.
- In yet another part of the Final Brief, however, the Defence does demand
proof of actual infliction of terror, as well as a causal link between actual
terror and unlawful violent acts:
The prosecutor should have proven several things:
1. that there was terror
2. that this terror was not simply the result of war
in an urban theatre, led in a legitimate way
3. that this terror was the result of illegitimate acts
4. performed by troops commanded by the Accused
5. following his orders
6. (alternatively) that the Accused was aware of the
facts and (if he had not given the orders himself) that he had not punished
them
7. finally that the result was hoped for as such within
the scope of a global plan.142
If this was meant as a definition of the crime of terror, the Defence
did not cite any authority for it.
- On the experiential aspect of terror, the Defence said: “It is underestimating
the meaning of ‘terror’ to say that if an individual (or individuals) feels
‘extreme fear’ he feels terror.”143
Later, in its oral submissions at the trial’s end, the Defence asserted: “Inflicting
of terror as an element of a criminal offence […] cannot be causing of any
kind of terror or causing terror of any intensity […] It has to be of the
highest intensity. It has to be long term. It has to be direct. And it has
to be capable of causing long-term consequences.”144
- As noted in the preceding section, by the end of the trial the Defence
seemed to have changed its position on the applicability of Additional Protocol
I. In its Final Brief it wrote that the conflict had “the character of civil
war […] it is quite clear that regulations of Additional Protocol II ha[ve]
to be applied”.145 It
submitted that Additional Protocol I is limited in its applicability to international
conflicts by operation of Article 2 common to the Geneva Conventions.146
Moreover, in oral submissions on the last day of trial, the Defence expressed
“some doubt” as to the status of the 22 May Agreement.147
- The Trial Chamber has already found that the 22 May Agreement was in effect
during the relevant period, which confirms that the parts of Additional Protocol
I referred to therein were operative during that period.148
Thus the Defence’s final position on the applicability of Additional Protocol
I is of no consequence to the discussion of the crime of terror.149
The Majority notes that, in any case, the Defence unequivocally accepted the
applicability of Additional Protocol II, which contains the same prohibition
against terror as the first Protocol.
(c) Discussion
- While the Parties have not raised the question of jurisdiction ratione
materiae , the Majority will consider it ex officio, for it is
fundamental to the exercise of competence.
- The Majority must decide whether the Tribunal has jurisdiction over the
crime of terror against the civilian population, but only to the extent relevant
to the charge in this case. That is to say, the Majority is not required to
decide whether an offence of terror in a general sense falls within
the jurisdiction of the Tribunal, but only whether a specific offence
of killing and wounding civilians in time of armed conflict with the intention
to inflict terror on the civilian population, as alleged in the Indictment,
is an offence over which it has jurisdiction.150
While the Tribunal may have jurisdiction over other conceivable varieties
of the crime of terror, it will be for Trial Chambers faced with charges correspondingly
different from Count 1 of the present Indictment to decide that question.
- The Majority wishes to emphasize that nothing said below should be taken
to limit the jurisdiction of the Tribunal in other cases.151
- As noted in the preceding section, in the Tadic decision on jurisdiction
the Appeals Chamber said that four conditions (“the Tadic conditions”)
must be met for an offence to be subject to prosecution under Article 3 of
the Statute (violations of the laws or customs of law): (i) the violation
must constitute an infringement of a rule of international humanitarian law;
(ii) the rule must be customary in nature or, if it belongs to treaty law,
the required conditions must be met; (iii) the violation must be serious,
that is to say, it must constitute a breach of a rule protecting important
values and the breach must involve grave consequences for the victim; and
(iv) the violation must entail, under customary or conventional law, the individual
criminal responsibility of the person breaching the rule.152
- The discussion below begins with preliminary remarks on the Majority’s
approach to treaty interpretation and the paramount importance of the nullum
crimen sine lege principle. The Majority will then consider each of the
Tadic conditions. The elements of the crime of terror are developed
as part of the discussion of the fourth Tadic condition.
(i) Preliminary remarks
- The Majority will instruct itself on two related matters of principle.
In its interpretation of provisions of the Additional Protocols and of other
treaties referred to below, the Majority will apply Article 31(1) of the 1969
Vienna Convention on the Law of Treaties, namely that “A treaty shall be interpreted
in good faith in accordance with the ordinary meaning to be given to the terms
of the treaty in their context and in the light of its object and purpose.”153
No word in a treaty will be presumed to be superfluous or to lack meaning
or purpose.
- The Majority also acknowledges the importance of the principle found in
Article 15 of the 1966 International Covenant on Civil and Political Rights,
which states, in relevant part: “No one shall be held guilty of any criminal
offence on account of any act or omission which did not constitute a criminal
offence, under national or international law, at the time when it was committed.
[…] Nothing in this article shall prejudice the trial and punishment of any
person for any act or omission which, at the time when it was committed, was
criminal according to the general principles of law recognised by the community
of nations.”154
- The principle (known as nullum crimen sine lege) is meant to prevent
the prosecution and punishment of a person for acts which were reasonably,
and with knowledge of the laws in force, believed by that person not to be
criminal at the time of their commission. In practice this means “that penal
statutes must be strictly construed” and that the “paramount duty of the judicial
interpreter [is] to read into the language of the legislature, honestly and
faithfully, its plain and rational meaning and to promote its object.”155
Moreover:
The effect of strict construction of the provisions
of a criminal statute is that where an equivocal word or ambiguous sentence
leaves a reasonable doubt of its meaning which the canons of construction
fail to solve, the benefit of the doubt should be given to the subject
and against the legislature which has failed to explain itself.156
(ii) First and Second Tadic Conditions
- The Indictment is not explicit as to which part of Article 51 of Additional
Protocol I, or which part of Article 13 of Additional Protocol II, Count 1
is referenced to. Article 51 is an extensive provision in Part IV of the Protocol
concerned with the protection of the civilian population. Yet it is clear
from the submissions in this case that the intended reference of Count 1 is
to sub-paragraph 2 of Article 51, which states:
The civilian population as such, as well as individual
civilians, shall not be the object of attack. Acts or threats of violence
the primary purpose of which is to spread terror among the civilian population
are prohibited.
The second sentence of this excerpt will henceforth be referred to as
the “second part” of the second paragraph of Article 51, or simply as the
“second part of 51 (2)”.
- The quoted passage is identical to sub-paragraph 2 of Article 13 of Additional
Protocol II. Since the Trial Chamber has found that certain parts of Additional
Protocol I, including Article 51 thereof, applied to the armed conflict in
Sarajevo during the relevant time, the Majority takes Additional Protocol
I to be the basis of Count 1. It is not necessary to decide whether Additional
Protocol II was also applicable to the conflict. Moreover, the Majority is
not called upon to decide whether Additional Protocol I came at any time into
effect in the State of Bosnia -Herzegovina through fulfilment of the Protocol’s
inherent conditions of application (Article 1 of the Protocol). The implementing
instrument, on the evidence in this case, was the 22 May Agreement (as discussed
in the preceding section).
- Thus the first two Tadic conditions are met: Count 1 bases itself
on an actual rule of international humanitarian law, namely the rule represented
by the second part of the second paragraph of Article 51 of Additional Protocol
I. As for the rule’s applicability in the period covered by the Indictment,
the rule had been brought into effect at least by the 22 May Agreement, which
not only incorporated the second part of 51(2) by reference,157
but repeated the very prohibition “Acts or threats of violence the primary
purpose of which is to spread terror among the civilian population are prohibited”
in the agreement proper.158
- The Majority emphasizes that it is not required to pronounce on whether
the rule in question is also customary in nature. As stated above, it belongs
to “treaty law”. This is enough to fulfil the second Tadic condition
as articulated by the Appeals Chamber. Nevertheless, the Majority will proceed
with additional caution here to avoid any possible misunderstanding of its
position on this important question.
- The Appeals Chamber has said “that the International Tribunal is authorised
to apply, in addition to customary international law, any treaty which: (i)
was unquestionably binding on the parties at the time of the alleged offence;
and (ii ) was not in conflict with or derogating from peremptory norms of
international law, as are most customary rules of international humanitarian
law.”159 In relation
to the first point, the Majority understands that it stems from the unqualified
imperative of respect for the nullum crimen sine lege principle. The
fact that the 22 May Agreement was binding on the parties to the conflict,
and that certain provisions of Additional Protocol I had thereby undoubtedly
been brought into effect, means that in this general sense there is no affront
to the principle of nullum crimen sine lege by the Majority’s determination.
In relation to the Appeals Chamber’s second point, this raises the question
of whether the second part of 51(2) in any way conflicts with, or derogates
from, peremptory norms of international law. In the Majority’s view, it does
not. What the second paragraph of Article 51, read as a whole, intends to
say is that the prohibition against terror is a specific prohibition within
the general prohibition of attack on civilians.160
The general prohibition is a peremptory norm of customary international law.161
It could be said that the specific prohibition also shares this peremptory
character, for it protects the same value. However, to reiterate, the Majority
is not required to decide this question. What is clear is that, by exemplifying
and therefore according with the general norm, the rule against terror neither
conflicts with nor derogates from peremptory norms of international law.
- The following considerations are also relevant. The Additional Protocols
were debated and finalized at the 1974-1977 Diplomatic Conference under the
auspices of the ICRC. A summary record of the proceedings has been preserved.162
The ICRC’s delegate to the committee to which Article 51(2) of Additional
Protocol I was assigned in draft form163
said that the rule “merely reaffirmed existing international law”, without
making a distinction between the provision’s first and second parts.164
This was the consistent attitude at the Conference. States’ concerns were
for the most part limited to whether the object of the prohibition against
terror should be the actor’s intent or the capacity of the methods employed
to spread violence.165
Several States simply put on record their approval of the draft provision
without proposing changes.
- To illustrate the insignificant level of controversy, the Majority mentions
the committee’s summary of its first-session discussions of what was to become
Article 51(2): “Some delegations had proposed an interpretation of ‘methods
intended to spread terror’ going beyond the attacks referred to in the first
sentence of the paragraph. Specific reference was made in this connexion to
propaganda. The language of ‘intended to’166
also gave rise to some controversy. Some delegations suggested that the substantive
element of intent would be too difficult to determine and that methods that
in fact spread terror should be prohibited. Other delegations emphasized the
problem of imposing responsibility for acts that might cause terror without
terror having been intended.”167
- In the report on its second session, the committee stated: “The prohibition
of ‘acts or threats of violence which have the primary object of spreading
terror’ is directed to intentional conduct specifically directed toward the
spreading of terror and excludes terror which was not intended by a belligerent
and terror that is merely an incidental effect of acts of warfare which have
another primary object and are in all other respects lawful.”168
What little disagreement there was about the draft provision was thus put
to rest.169
- Article 51 of Additional Protocol I was adopted by the plenary of the Diplomatic
Conference on 26 May 1977 with 77 in favour, one against, and 16 abstentions.170
France, the only state voting against, explained that it objected, for various
reasons, to the provisions of paragraphs 4, 5, 7, and 8 of Article 51 (but
not of paragraph 2).171
The concerns of the abstaining States were also confined to paragraphs 4,
5, 7, and 8.172
- Explicit reference to the terror clause is found twice in the States’ explanations
of their votes on Article 51. In both cases the endorsement of the prohibition
is strong and unqualified. The Byelorussian Soviet Socialist Republic noted
the “criminal ” character of conduct which the prohibition aimed to counteract:
Also very important from the standpoint of increasing
the protection afforded to the civilian population is the provision in
Article [51] concerning the prohibition of the use of force or threat
of the use of force for the purpose of intimidating the civilian population.
Intimidating peaceful citizens and spreading terror among the civilian
population is well known to be one of the infamous methods widely resorted
to by aggressors seeking to attain their criminal ends at whatever price.173
- The plenary adopted Additional Protocol I in whole by consensus on 8 June
1977.174 Following this,
many States provided further explanations of their positions, but there was
no further reference to the terror clause of Article 51(2).175
There were no treaty reservations of any relevance to this provision. A perusal
of the travaux préparatoires of the Diplomatic Conference thus satisfies
the Majority that all participating States condemned the strategy of terrorizing
civilians as, in Byelorussia’s words, an “infamous method” of warfare.176
- These observations further support the view that the second part of 51(2)
neither conflicts with nor derogates from peremptory norms of international
law. It was meant, on the contrary, to be an exemplification of the general
principle.
(iii) Third Tadic Condition
- The Majority now considers the third Tadic condition, namely that
the violation must be “serious” – that is to say, that it must constitute
a breach of a rule protecting important values and the breach must involve
grave consequences for the victim.177
- In the Majority’s opinion, this third condition, correctly interpreted,
is not that the rule must be inherently “serious”, which would mean
that every violation of it would also be serious, but that the alleged violation
of the rule – that is, of a recognized humanitarian rule – must be serious
for the violation to come within the jurisdiction of the Tribunal.
- In the present case, acts of violence of a very serious nature are alleged
in the Indictment. In particular, Count 1 alleges a protracted campaign of
shelling and sniping of civilians. A campaign of this nature cannot but cause
death and injury to civilians over time, and allegedly this was the result
of the Accused’s actions in this case. There is no doubt that making the civilian
population or individual civilians the object of attack, with resulting death
and injury to civilians, is a very serious violation of a basic rule of international
humanitarian law. It would even qualify as a grave breach of Additional Protocol
I.178
- Since doing that much is a serious violation, doing the same with the primary
purpose of spreading terror among the civilian population can be no less serious,
nor can it make the consequences for the victims any less grave. It is clear
moreover from the travaux préparatoires of the Diplomatic Conference
that the participating States without exception regarded the deliberate taking
of measures to terrorize the civilian population as reprehensible as any attack
upon the civilian population. Therefore the alleged violation is serious and
the third condition is met.
- The Majority has not neglected the question of whether threats of violence,
as opposed to acts of violence, could also involve grave consequences for
the victim. However, because the question is not at issue in this case, the
Majority is not required to address it.179
- It is perhaps worth reiterating Article 1 of the Tribunal’s Statute (“Competence
of the International Tribunal”), that “The International Tribunal shall have
the power to prosecute persons responsible for serious violations of international
humanitarian law committed in the territory of the former Yugoslavia since
1991 […]” – the key notion for the purposes of this discussion is the seriousness
of an offence.
- The Majority has demonstrated the seriousness of the violations alleged
in this case.
(iv) Fourth Tadic Condition
- The Majority now comes to examine the fourth Tadic condition, namely
whether a serious violation of the prohibition against terrorizing the civilian
population entails, under customary or conventional law, the individual criminal
responsibility of the person breaching the rule. The issue here, in particular,
is whether the intent to spread terror had already been criminalized by 1992.
The Majority reiterates that it takes no position on whether a customary basis
exists for a crime of terror as a violation of the laws or customs of war.
Its discussion below amounts to a survey of statutory and conventional law
relevant to the fulfilment of the fourth Tadic condition.
- To the Majority’s knowledge, the first conviction for terror against a
civilian population was delivered in July 1947 by a court-martial sitting
in Makassar in the Netherlands East-Indies (N.E.I.). The offences alleged
in Motomura et al.180
were charged in the indictment as “systematic terrorism against persons suspected
by the Japanese of punishable acts […] this systematic terrorism taking the
form of repeated, regular and lengthy torture and/or ill-treatment, the seizing
of men and women on the grounds of wild rumours, repeatedly striking them
[…] the aforesaid acts having led or at least contributed to the death, severe
physical and mental suffering of many.”181
The court-martial’s jurisdiction was conferred by statute,182
Article 1 of which read, in relevant part:
Under war crimes are understood acts which constitute
a violation of the laws and usages of war committed in time of war by
subjects of an enemy power or by foreigners in the service of the enemy,
such as: […]
2. Systematic terror.183
[…]
4. Torture of civilians. […]
34. Indiscriminate mass arrests.
35. Ill-treatment of interned civilians or prisoners.
[…]
- The Motomura court-martial convicted 13 of the 15 accused of “systematic
terrorism practiced against civilians” for acts including unlawful mass arrests.184
The court found that those arrests had the effect of terrorizing the population,
“for nobody, even the most innocent, was any longer certain of his liberty,
and a person once arrested, even if absolutely innocent, could no longer be
sure of health and life.”185
The associated torture and ill-treatment of interned civilians was also found
to be a form of systematic terror.186
Seven of those convicted were sentenced to death and the rest to prison sentences
ranging from 1 to 20 years.187
- The list of war crimes in the aforementioned N.E.I. statute reproduced
with minor changes a list of war crimes proposed in March 1919 by the so-called
Commission on Responsibilities, a body created by the Preliminary Peace Conference
of Paris to inquire into breaches of the laws and customs of war committed
by Germany and its allies during the 1914-1918 war.188
The Commission reported that it had found evidence of multiple violations
of the rights of civilians and combatants, as well as a carefully planned
and executed “system of terrorism”. It claimed that: “Not even prisoners,
or wounded, or women, or children have been respected by belligerents who
deliberately sought to strike terror into every heart for the purpose of repressing
all resistance.”189 The
Commission’s list of war crimes had “Murders and massacres; systematic terrorism
” of civilians as one item (the first in the list).190
The few trials held in 1921-1922 in Leipzig pursuant to the Treaty of Versailles
are generally considered to have been a failure.191
In any event, they did not advance the concept of systematic terrorism created
by the Commission.192
- The British and the Australians had also tried to make something of the
“systematic terrorism” which came to life in 1919 and found its way into the
post-Second World War N.E.I. statute. On 20 July 1945 the British delegation
to a conference of nations known as the London Conference, which had assembled
to negotiate the formation of the International Military Tribunal, proposed
that terror against civilians in the context of armed conflict be criminalized.
The delegation’s suggested definition of “Crimes”, under Article 6 of the
draft IMT Charter, read, in part:
The Tribunal shall have the power to try, convict and
sentence any person who has, in any capacity whatever directed or participated
in the planning, furtherance, or conduct of any or all of the following
acts, designs, or attempts namely: [...]
2. Systematic atrocities against or systematic terrorism
or ill-treatment or murder of civilians
3. Launching or waging war in a manner contrary to the
laws, usages and customs of warfare
and who is hereby declared therefore to be personally
answerable for the violations of international law, of the laws of humanity,
and of the dictates of public conscience.193
A few days later, a revised definition which had gained the approval of
the French was put forth by the British. It no longer made reference to
“terrorism” as such, but used open-ended language (“Atrocities... include
but are not limited to...”).194
The Charter in its final form used this open-ended formulation to define
war crimes.
- Australia’s War Crimes Act of 1945 made reference to the work of the Commission
on Responsibilities and included “systematic terrorism” in its category of
war crimes.195
- The next relevant appearance of a prohibition against terror was in Article
33 of the 1949 Geneva Convention IV, which article states in part: “No protected
person may be punished for an offence he or she has not personally committed.
Collective penalties and likewise all measures of intimidation or of terrorism
are prohibited.” This protection extends only to persons “in the hands of
a Party to the conflict ” (Article 4 of the Convention).196
Thus, purely by operation of Article 33, civilians in territory not occupied
by the adversary are not protected against “measures of intimidation or of
terrorism ” which the adversary might decide to direct against them.
- The most important subsequent development on the international stage was
the unopposed emergence of Article 51(2) of Additional Protocol I (and of
the identical provision in the second Protocol) in the Diplomatic Conference
of 1974-1977, as described above. Additional Protocol I elaborated and extended
the protections of the Geneva Conventions, including those of the fourth Convention
on the protection of civilians in times of war. The Majority recalls that
the scope of application of Additional Protocol I is given in its first Article,
which states that the Protocol “shall apply in the situations referred to
in Article 2 common to [the Geneva] Conventions.” Article 2 of the Conventions
states, inter alia, that the Convention “ shall also apply to all cases
of partial or total occupation of the territory of a High Contracting Party,
even if the said occupation meets with no armed resistance.” Consequently
Additional Protocol I applies to the aforementioned situations to the extent
feasible, as well as to situations such as that which the present Indictment
is concerned with, in which civilians not in the hands of an attacking force
allegedly become victims of attacks by that force. In other words, whereas
the cited part of Article 33 of Geneva Convention IV brought protection from
intimidation or terrorism to only a subset of civilians in the context of
armed conflict (those in the hands of a Party to the conflict), Article 51(2)
of the Protocol elaborated and extended the protection from terror to civilians
whether or not in the hands of the Party to the conflict conducting the attack,
to the extent consistent with a purposeful and logical interpretation of Additional
Protocol I.
- The Majority now turns to consider a legislative development in the region
relevant to this Indictment. Article 125 (“War Crime Against the Civilian
Population”) in Chapter XI (“Criminal Offences Against Humanity and International
Law”) of the 1960 Criminal Code of the Federal Republic of Yugoslavia read:
“Whoever, in violation of the rules of international law in times of war,
armed conflict or occupation issues orders for or performs […] the application
of intimidating measures and terror […] shall be punished with severe
imprisonment of at least five years or with the penalty of death.”197
The source of this may have been Article 33 of Geneva Convention IV, whose
benefit, as noted above, is enjoyed by “protected persons”, namely those in
the hands of a Party to the conflict. Yet Article 125 is formulated quite
generally and does not seem to be limited to protected persons, in the sense
of the Geneva Conventions. The 1964 Criminal Code was unchanged in this respect.198
The 1976 Criminal Code followed a different enumeration. The Chapter changed
from XI to XVI, and the Article number from 125 to 142. The titles did not
change. Article 142 came to read: “Whosoever, in violation of the rules of
the international law during a war, an armed conflict or an occupation, orders
[…] imposition of measures [against the civilian population] aimed at inducing
fear and terror […] or whosoever commits any of the said acts, shall be punished
by imprisonment of not less than five years or by death.”199
- Following Yugoslavia’s ratification of Additional Protocol I on 11 March
1977, the new treaty was incorporated into Yugoslavia’s “[Armed Forces] Regulations
on the Application of International Laws of War”. The Trial Chamber was provided
with the 1988 edition.200
An order from the Federal President prefaces the regulations and tasks commanders
of units with the responsibility “for the application of the international
laws of war. The officer in charge shall institute proceedings against persons
who violate the international laws of war for the pronouncement of the penalties
prescribed by the law.”201
The applicable laws include Additional Protocol I.202
“Serious” violations of the laws of war are considered criminal offences.203
These include war crimes against a civilian population, namely “attack on
civilians […] inhuman treatment [of civilians] inflicting great suffering
or injury to bodily integrity or health […] application of measures of
intimidation and terror ”204
and “deliberate bombardment of the civilian population”.205
In a later part, on means and methods of combat, the regulations state: “Attacking
civilians for the purpose of terrorising them is especially prohibited.”206
The regulations point out that ignorance of the provisions of the laws of
war “does not exonerate the transgressors from responsibility”,207
that the perpetrators of war crimes “may also answer before an international
court, if such a court has been established”,208
and that the Criminal Code has been updated to criminalize and punish all
aforementioned war crimes against the civilian population.209
These updates to the Criminal Code are evident in the version of the Code
promulgated by the Federal Republic of Yugoslavia in 1990, whose Article 142
repeats the text of 1976 (excerpted in the paragraph above) yet is augmented
by prohibitions derived from the Additional Protocols of 1977.210
- The “Serbian Republic” of Bosnia-Herzegovina did not disavow the regulatory
regime which the Accused and other former JNA officers had laboured under
while serving the Federation’s armed forces. An “Order on the Application
of the Rules of the International Law of War in the Army of the Serbian Republic
of Bosnia and Herzegovina”, signed by Radovan Karadzic on 13 May 1992 and
published in the “Official Gazette of the Serbian People” on 13 June 1992,
declared that “the Army […] shall apply and respect the rules of the international
law of war […] includ[ing]: the international treaties signed, ratified or
joined by the former Socialist Federal Republic of Yugoslavia; the customary
international law of war; [and] the generally accepted principles of the international
law of war. […] It is the duty of the competent superior officer to initiate
proceedings for legal sanctions against individuals who violate the rules
of the international law of war.”211
These “proceedings for legal sanctions” were set down in greater detail in
the “ Guidelines for Determining Criteria for Criminal Prosecution” issued
in 1992 by the Military Prosecutor’s Office at the Main Staff of the Armed
Forces of Republika Srpska.212
Here the Military Prosecutor referred to the Criminal Code of the Federal
Republic of Yugoslavia, which had been adopted by the “Serbian Republic” to
the extent of preserving the title of the original Chapter – “Criminal Offences
Against Humanity and International Law” – in which the updates referred to
above in the Federation’s Armed Forces Regulations had been implemented.213
The Military Prosecutor noted the “unique nature” of that Chapter’s criminal
offences, which is to be seen “in their seriousness, which is expressed in
severe punishments, including the death penalty”.214
“These criminal offences take the form of direct execution of criminal and
inhumane acts against the civilian population […] inhumane conduct, causing
great suffering or injury to body or health [and] frightening and terrorising
people.”215 The 1992
Guidelines instituted a procedure which relied on the army’s officer corps
to report violations of the laws of war to the Military Prosecutor’s office.216
The Guidelines warned officers that should they “take no measures to prevent
the […] acts themselves, and expose perpetrators to criminal prosecution,
this in itself makes them answerable for these criminal offences.”217
- The 22 May 1992 Agreement states in its section on “Implementation” that
each party “undertakes, when it is informed, in particular by the ICRC, of
any allegation of violations of international humanitarian law, to open an
enquiry promptly and pursue it conscientiously, and to take the necessary
steps to put an end to the alleged violations or prevent their recurrence
and to punish those responsible in accordance with the law in force.”218
Clearly the parties intended that serious violations of international humanitarian
law would be prosecuted as criminal offences committed by individuals.219
- The developments reviewed so far demonstrate that, by the time the second
part of 51(2) was added verbatim to the 22 May Agreement it already had a
significant history of usage by direct or indirect reference in the region
of the former Yugoslavia.
- There is at least one conviction for terrorism of the civilian population
in the course of the Yugoslav conflict by a municipal court in the territory
of the former Yugoslavia. In May 1997, the Split County Court in Croatia convicted
Rajko Radulovic and other members of the army of “Republika Srpska” pursuant
to provisions including Article 33 of Geneva Convention IV, Article 51 of
Additional Protocol I, and Article 13 of Additional Protocol II, for, inter
alia, “a plan of terrorising and mistreating the civilians”, “carr[ying
out] the orders of their commanders with the goal to terrorise”, which included
opening random fire against civilian areas and threatening to demolish, and
indeed proceeding to demolish, a dam with the intention of drowning the approximately
30,000 people living downstream.220
- Finally, the fact that there existed, by 1992, individual criminal responsibility
for serious violations of the rule against terror under at least conventional
law, is evident from the content and context of Additional Protocol I. If
a violation charged against the Accused in the present case is of the same
nature as that which States at the Diplomatic Conference collectively considered
a grave breach, individual criminal responsibility for the charge would thereby
have been established. Terror in the present Indictment is not charged as
a grave breach of Additional Protocol I. But with regard to whether there
was, in 1992, individual criminal responsibility for a person committing a
serious violation of the rule prohibiting terror, this can be answered in
the affirmative where the serious violation took the form of serious injury
or death caused to civilians. In such cases the acts of violence qualified,
in themselves, as grave breaches of Additional Protocol I. Therefore the violation
seen in all its elements (attack plus intent to terrorize) could not have
been qualified as less criminal than a grave breach.
- The same conclusion is reached by another line of reasoning. Article 85
of Additional Protocol I is addressed to States, yet it delineates crimes,
and legal elements of crimes, for which there is individual criminal responsibility.
The Majority finds in Article 85’s universal acceptance in the Diplomatic
Conference clear proof that certain violations of Article 51(2) of Additional
Protocol I had been criminalized. In particular, as already explained in the
preceding section, there was individual criminal responsibility for “making
the civilian population or individual civilians the object of attack”, “when
committed wilfully, in violation of the relevant provisions of this Protocol,
and causing death or serious injury to body or health”.221
Alongside this component should be considered the unanimous and unqualified
condemnation by the Diplomatic Conference of attacks against civilians intended
to spread terror. That is, this specific intentional state – having the intent
to spread terror – was also condemned. The serious violations alleged in the
present case include both of the above components (wilfully attacking civilians
resulting in death or serious injury plus the intent to terrorize them).
- Because the alleged violations would have been subject to penal sanction
in 1992, both internationally and in the region of the former Yugoslavia including
Bosnia-Herzegovina, the fourth Tadic condition is satisfied.
- Since all four conditions have now been satisfied, the Majority finds that
serious violations of the second part of Article 51(2), and specifically the
violations alleged in this case causing death or injury, entailed individual
criminal responsibility in 1992. The Majority expresses no view as to whether
the Tribunal also has jurisdiction over other forms of violation of the rule,
such as the form consisting only of threats of violence, or the form comprising
acts of violence not causing death or injury. This is not a question it has
been called upon to decide.
- It now falls to the Majority to specify, in the light of what has been
considered above, including the preliminary remarks on statutory interpretation,
the material and mental elements of the offence of terror over which the Majority
has found the Tribunal has jurisdiction. The Majority recalls the submissions
of the Parties on the elements, which were summarized in the introduction
to this section, and in particular the submission that actual infliction of
terror is one of the elements of the offence. The Majority reiterates that
the Parties’ submissions on the elements were tentative and were based on
little authority.
- The Majority finds that Count 1 of the Indictment charges the Accused with
serious violations of the rule in Article 51(2) of Additional Protocol I that
“Acts or threats of violence the primary purpose of which is to spread terror
among the civilian population are prohibited.” The present case does not involve
“threats” (except in the narrow sense of implicit threats proposed by the
Prosecution), and therefore the Majority is not required to pronounce on a
crime of terror consisting only of threats. The present case also does not
involve allegations of harm other than the causing of death or serious injury
to civilians (in contrast, for example, with the Motomura case, where
the harm was in the form of unlawful mass arrests and ill-treatment of civilians).
In articulating the elements of the specific offence relevant to the disposition
of this case, the Majority relies necessarily on the wording of Article 51(2)
of Additional Protocol I. The Trial Chamber’s discussion of the crime of attack
on civilians in the previous section is also relevant. That there is no uncertainty
as to the meaning of the elements is demonstrated below with reference to
the travaux préparatoires of the Diplomatic Conference. The Majority
finds that the offence as here defined was criminalized in a precise and accessible
manner by 1992, and that this was known or should have been known to the Accused.
Therefore there is no affront to the principle of nullum crimen sine lege.
- In conclusion, the crime of terror against the civilian population in the
form charged in the Indictment is constituted of the elements common to offences
falling under Article 3 of the Statute, as well as of the following specific
elements:
1. Acts of violence directed against the civilian population
or individual civilians not taking direct part in hostilities causing
death or serious injury to body or health within the civilian population.
2. The offender wilfully made the civilian population
or individual civilians not taking direct part in hostilities the object
of those acts of violence.
3. The above offence was committed with the primary
purpose of spreading terror among the civilian population.222
- The Majority rejects the Parties’ submissions that actual infliction of
terror is an element of the crime of terror.223
The plain wording of Article 51(2), as well as the travaux préparatoires
of the Diplomatic Conference exclude this from the definition of the
offence.224 Since actual
infliction of terror is not a constitutive legal element of the crime of terror,
there is also no requirement to prove a causal connection between the unlawful
acts of violence and the production of terror, as suggested by the Parties.225
- With respect to the “acts of violence”, these do not include legitimate
attacks against combatants but only unlawful attacks against civilians.226
- “Primary purpose” signifies the mens rea of the crime of terror.227
It is to be understood as excluding dolus eventualis or recklessness
from the intentional state specific to terror. Thus the Prosecution is required
to prove not only that the Accused accepted the likelihood that terror would
result from the illegal acts – or, in other words, that he was aware of the
possibility that terror would result – but that that was the result which
he specifically intended. The crime of terror is a specific-intent crime.228
- The meaning of “civilian population” was given in the section discussing
the crime of attack on civilians. The Majority accepts the Prosecution’s rendering
of “terror” as “extreme fear”. The travaux préparatoires of the Diplomatic
Conference do not suggest a different meaning.
(v) Conclusion
- The Majority is of the view that an offence constituted of acts of violence
wilfully directed against the civilian population or individual civilians
causing death or serious injury to body or health within the civilian population
with the primary purpose of spreading terror among the civilian population
– namely the crime of terror as a violation of the laws or customs of war
– formed part of the law to which the Accused and his subordinates were subject
to during the Indictment period. The Accused knew or should have known that
this was so. Terror as a crime within international humanitarian law was made
effective in this case by treaty law. The Tribunal has jurisdiction ratione
materiae by way of Article 3 of the Statute. Whether the crime of terror
also has a foundation in customary law is not a question which the Majority
is required to answer.
B. Offences Charged under Article 5 of the Statute
1. Prerequisites of Article 5 of the Statute
- For a crime to be adjudicated under Article 5 of the Statute (crimes against
humanity), there are two prerequisites: that there was an armed conflict,
and that the alleged criminal acts occurred during that armed conflict.229
The latter “require[s] nothing more than the existence of an armed conflict
at the relevant time and place.”230
No nexus between the underlying crime and the armed conflict is necessary.231
- With regard to the general elements of a crime against humanity under Article
5 of the Statute, the Trial Chamber follows the law as stated by the Appeals
Chamber.232 The required
elements related to actus reus are that:
(i) there must be an “attack;”
(ii) the underlying crime must be part of the attack;
(iii) the attack must be directed against any civilian
population;
(iv) the attack must be widespread or systematic;
The mens rea requirement is that the perpetrator knows of the wider
context in which the underlying crime occurs and knows that his or her conduct
is part of the attack.
- An “attack” may be defined as a course of conduct involving the commission
of acts of violence.233
In the context of a crime against humanity, “attack” is not limited to armed
combat.234 It may also
encompass situations of mistreatment of persons taking no active part in hostilities,
such as of a person in detention.235
In comparing the content of customary international law concerning crimes
against humanity to the Tribunal’s Statute, the Appeals Chamber noted that
“the ‘attack on the civilian population’ and the ‘armed conflict’ must be
separate notions, although of course under Article 5 of the Statute the attack
on ‘any civilian population’ may be part of an ‘armed conflict’”.236
In accordance with customary international law, the attack could precede,
outlast, or continue during the armed conflict, but it need not be a part
of it.237
- The phrase “directed against” is an expression which “specifies that in
the context of a crime against humanity the civilian population is the primary
object of the attack.”238
In order to determine whether the attack may be said to have been so directed,
the following, inter alia, are to be considered: the means and method
used in the course of the attack, the status of the victims, their number,
the discriminatory nature of the attack, the nature of the crimes committed
in its course, the resistance to the assailants at the time, and the extent
to which the attacking force may be said to have complied or attempted to
comply with the precautionary requirement of the laws of war.239
- The attack must be directed against a “civilian population.”240
A population may qualify as “civilian” even if non-civilians are among it,
as long as the population is predominantly civilian.241
The definition of a “civilian” is expansive and includes individuals who at
one time performed acts of resistance, as well as persons hors de combat
when the crime was perpetrated.242
There is no requirement that the entire population of the area in which the
attack is taking place must be subjected to that attack.243
It is sufficient to show that a certain number of individuals were targeted
in the course of the attack, or that individuals were targeted in such a way
as to compel the conclusion that the attack was in fact directed against a
civilian “population,” rather than against a small and randomly selected number
of individuals.244
- The Prosecution submits that, in the context of an armed conflict, the
determination that an attack is unlawful in light of treaty and customary
international law with respect to the principles of distinction and proportionality
is critical in determining whether the general requirements of Article 5 have
been met.245 Otherwise,
according to the Prosecution, unintended civilian casualties resulting from
a lawful attack on legitimate military objectives would amount to a crime
against humanity under Article 5 and lawful combat would, in effect, become
impossible.246 It therefore
submits that an accused may be found guilty of a crime against humanity if
he launches an unlawful attack against persons taking no active part in the
hostilities when the general requirements of Article 5 have been established.247
The Trial Chamber accepts that when considering the general requirements of
Article 5, the body of laws of war plays an important part in the assessment
of the legality of the acts committed in the course of an armed conflict and
whether the population may be said to have been targeted as such.248
- Evidence of attack by opposing forces on the civilian population to which
the accused belongs may not be introduced unless it tends to prove or disprove
an allegation made in an indictment, such as the Prosecution’s contention
that there was a widespread or systematic attack against a civilian population.249
A submission that the opposing side is responsible for starting the hostilities
is not relevant to disproving the allegation that there was an attack on the
civilian population in question.250
- The attack must be widespread or systematic. “Widespread” denotes a large-scale
attack with a large number of victims,251
while “systematic” refers to the organized nature of the attack.252
The assessment of what constitutes a widespread or systematic attack is relative
to the civilian population under attack.253
The Trial Chamber must first identify the population which is the object of
the attack and, in light of the means, methods, patterns, resources, participation
of officials or authorities, and result of the attack upon that population,
ascertain whether the attack was widespread or systematic.254
- The jurisprudence of the Tribunal has established that there is no requirement
under customary international law that the attack be connected to a policy
or plan.255 Evidence
of a plan or policy may, however, be used in showing that the attack was widespread
or systematic.256
- In addition to the intent to commit the underlying crime, the accused must
know that there is an attack directed against the civilian population and
that the acts performed by him or her are part of that attack.257
Knowledge of the details of the attack is not necessary,258
and it is not required that the accused shares the purpose or goal behind
the attack.259 It is
sufficient that through his or her acts or function the accused knowingly
participated in the attack.260
2. Crimes Alleged under Article 5 of the Statute
(a) Murder
- Counts 2 and 5 of the Indictment charge the Accused with murder as a crime
against humanity pursuant to Article 5(a) of the Statute. The counts are referenced
to the Accused’s alleged conduct of a coordinated and protracted campaign
of sniping, artillery, and mortar attacks upon civilian areas and the civilian
population of Sarajevo, resulting in the death of civilians.
- The basic requirements for murder as a crime against humanity are that:261
(a) the victim died;
(b) the victim’s death was caused by an act or omission
of the accused, or of a person or persons for whose acts or omissions
the accused bears criminal responsibility; and
(c) the act was done, or the omission was made, by the
accused, or by a person or persons for whose acts or omissions the accused
bears criminal responsibility, with an intention:
(i) to kill, or
(ii) to inflict serious injury, in reckless disregard of human life.262
(b) Inhumane acts
- Counts 3 and 6 charge the Accused with inhumane acts as a crime against
humanity pursuant to Article 5(i) of the Statute. The counts are referenced
to the Accused’s alleged conduct of a coordinated and protracted campaign
of sniping, artillery, and mortar attacks upon civilian areas and the civilian
population of Sarajevo, resulting in the suffering and injury of civilians.
- The crime of inhumane acts is a residual clause for serious acts which
are not otherwise enumerated in Article 5 but which require proof of the same
chapeau elements.263
The elements of the crime of inhumane acts are that:264
(a) there was an act or omission of similar seriousness
to the other acts enumerated in Article 5;
(b) the act or omission caused serious mental or physical
suffering or injury265
or constituted a serious attack on human dignity; and
(c) the act or omission was performed intentionally
by the accused, or by a person or persons for whose acts and omissions
the accused bears criminal responsibility.
- In order to assess the seriousness of an act or omission, consideration
must be given to all the factual circumstances of the case. These circumstances
may include the nature of the act or omission, the context in which it occurred,
the personal circumstances of the victim including age, sex, and health, and
the physical, mental, and moral effects of the act or omission upon the victim.266
- The intention to inflict inhumane acts is satisfied where the offender,
at the time of the act or omission, had the intention to inflict serious physical
or mental suffering or to commit a serious attack upon the human dignity of
the victim, or where he knew that his or her act or omission was likely to
cause serious physical or mental suffering or a serious attack upon human
dignity.267
- Because some of the charges in this Indictment have the same underlying
facts in common, the Trial Chamber will consider the law on cumulation of
charges and convictions.
C. Cumulative Charging and Convictions
1. Cumulative Charging
- The Defence deems it “unacceptable” that the Accused be cumulatively charged
with three different crimes (murder, inhumane acts, and attacks on civilians)
on the basis of the same set of factual allegations.268
The Appeals Chamber of the Tribunal has pronounced on the issue of cumulative
charging and stated that “cumulative charging constitutes the usual practice
of both this Tribunal and the ICTR” and “is to be allowed in light of the
fact that, prior to the presentation of all of the evidence, it is not possible
to determine to a certainty which of the charges brought against an accused
will be proven”.269 The
Defence’s arguments with regard to cumulative charging are dismissed.
2. Cumulative Convictions
- In the present case the criminal conduct alleged against the Accused is
the same for Count 1 and Counts 4 and 7 under Article 3 of the Statute (violations
of the laws and customs of war: terror upon the civilian population and attack
on civilians ). The same alleged conduct serves as a basis also for the counts
under Article 5 of the Statute (crimes against humanity: murders and inhumane
acts). The Trial Chamber must decide in each case on which charges it is permissible
to enter a conviction if the legal elements of the crimes were proved.
- According to the Appeals Chamber it is permissible to enter cumulative
convictions under different statutory provisions to punish the same criminal
acts if “each statutory provision involved has a materially distinct element
not contained in the other. An element is materially distinct from another
if it requires proof of a fact not contained in the other.”270
If it is not the case that each statutory provision involved has a materially
distinct element, a conviction should be entered only under the more specific
provision, namely the one with the additional element.271
(a) Article 3: The Test Applied to Count 1 and
Counts 4 and 7
- Count 1 is referenced to attacks on civilians by sniping and shelling,
and Counts 4 and 7 are referenced, respectively, to the same attacks of sniping
and shelling.
- The Majority of the Trial Chamber has found that the crime of terror in
Count 1 is defined as “1. Acts of violence directed against the civilian population
or individual civilians not taking direct part in hostilities causing death
or serious injury to body or health within the civilian population. 2. The
offender wilfully made the civilian population or individual civilians not
taking direct part in hostilities the object of those acts of violence. 3.
The above offence was committed with the primary purpose of spreading terror
among the civilian population.”
- The Trial Chamber has found that the crime of attack on civilians in Counts
4 and 7 is defined as “1. Acts of violence directed against the civilian population
or individual civilians not taking direct part in hostilities causing death
or serious injury to body or health within the civilian population. 2. The
offender wilfully made the civilian population or individual civilians not
taking direct part in hostilities the object of those acts of violence.”
- Applying the aforementioned test, convictions for the crimes of terror
and attack on civilians under Article 3 of the Statute based on the same conduct
are not permissible. The legal elements are the same except that the crime
of terror contains the distinct material element of “primary purpose of spreading
terror.” This makes it more specific than the crime of attack on civilians.
Therefore, if all relevant elements were proved, a conviction should be entered
for Count 1 only.
(b) Articles 3 and 5: Cumulation for War Crimes
and Crimes against Humanity
- The Appeals Chamber has stated that it is permissible to cumulate convictions
for the same acts under Articles 3 and 5 of the Statute.272
Therefore, a conviction for the crime of terror upon the civilian population
(Article 3 of the Statute) and convictions for murder and inhumane acts (Article
5 of the Statute) may stand together.
(c) Article 5: The Counts of Murder and Inhumane
acts
- The counts of murder and inhumane acts as crimes against humanity are not
based upon the same criminal conduct. They seek to punish, respectively, murder
of civilians through sniping and shelling attacks (Article 5(a) of the Statute),
and other harm suffered by civilians through sniping and shelling attacks,
in particular serious injury (Article 5(i) of the Statute). Therefore the
issue of cumulative convictions does not arise.
D. Theories of Responsibility under Article 7
of the Statute
- The Indictment alleges that General Galic, as commander of the Sarajevo
Romanija Corps, and pursuant to Article 7(1) of the Statute, bears individual
criminal responsibility for planning, instigating, ordering, committing, or
otherwise aiding and abetting in the planning, preparation, or execution of
the campaign of shelling and sniping against the civilian population of Sarajevo.273
The Accused is also alleged to bear individual criminal responsibility pursuant
to Article 7(3) of the Statute for the conduct of his subordinates.274
- Article 7 of the Statute provides for imposition of individual and superior
responsibility on persons on the following basis:
1. A person who planned, instigated, ordered, committed
or otherwise aided and abetted in the planning, preparation or execution
of a crime referred to in articles 2 to 5 of the present Statute, shall
be individually responsible for the crime.
2. […]
3. The fact that any of the acts referred to in articles
2 to 5 of the present Statute was committed by a subordinate does not
relieve his superior of criminal responsibility if he knew or had reason
to know that the subordinate was about to commit such acts or had done
so and the superior failed to take the necessary and reasonable measures
to prevent such acts or to punish the perpetrators thereof.
1. Individual Responsibility under Article 7 (1)
of the Statute
- The Indictment, in describing the Accused’s responsibility, makes reference
to each head of responsibility in Article 7(1).275
In the Prosecution’s Final Trial Brief reference is made to “ordering” as
the basis of responsibility. It is within the Trial Chamber’s discretion to
convict, if at all, the Accused under the appropriate head of responsibility
within the limits set by the Indictment and insofar as the evidence permits.276
- The Trial Chamber considers, briefly, the case-law of the International
Tribunals which elaborates the elements of the various heads of individual
criminal responsibility in Article 7(1) of the Statute.277
Considering them in the order in which they appear in the Statute, “planning”
has been defined to mean that one or more persons designed the commission
of a crime, at both the preparatory and execution phases,278
and the crime was actually committed within the framework of that design279
by others.280 “Instigating”
means prompting another to commit an offence, which is actually committed.281
It is sufficient to demonstrate that the instigation was “a clear contributing
factor to the conduct of other person(s)”.282
It is not necessary to demonstrate that the crime would not have occurred
without the accused’s involvement.283
“Ordering ” means a person in a position of authority using that authority
to instruct another to commit an offence. The order does not need to be given
in any particular form.284
“Committing” means that an “ accused participated, physically or otherwise
directly, in the material elements of a crime under the Tribunal’s Statute”.285
Thus, it “covers first and foremost the physical perpetration of a crime by
the offender himself.”286
“Aiding and abetting” means rendering a substantial contribution to the commission
of a crime.287 These
forms of participation in a crime may be performed through positive acts or
through culpable omission.288
It has been held in relation to “instigating” that omissions amount to instigation
in circumstances where a commander has created an environment permissive of
criminal behaviour by subordinates.289
The Defence contests the applicability of that case-law and considers that
“in all the cases (under Article 7(1)( a person must undertake an action that
would contribute to the commission of a crime”.290
- In the Majority’s opinion, a superior may be found responsible under Article
7(1) where the superior’s conduct had a positive effect in bringing about
the commission of crimes by his or her subordinates, provided the mens
rea requirements for Article 7(1) responsibility are met. Under Article
7(3) (see further below) the subordinate perpetrator is not required to be
supported in his conduct, or to be aware that the superior officer knew of
the criminal conduct in question or that the superior did not intend to investigate
or punish the conduct. More generally, there is no requirement of any form
of active contribution or positive encouragement, explicit or implicit, as
between superior and subordinate, and no requirement of awareness by the subordinate
of the superior’s disposition, for superior liability to arise under Article
7(3). Where, however, the conduct of the superior supports the commission
of crimes by subordinates through any form of active contribution or passive
encouragement (stretching from forms of ordering through instigation to aiding
and abetting, by action or inaction amounting to facilitation), the superior’s
liability may be brought under Article 7(1) if the necessary mens rea is
a part of the superior’s conduct. In such cases the subordinate will most
likely be aware of the superior’s support or encouragement, although that
is not strictly necessary. In the Majority’s view, the key point in all of
this is that a superior with a guilty mind may not avoid Article 7(1) responsibility
by relying on his or her silence or omissions or apparent omissions or understated
participation or any mixture of overt and non-overt actions, where the effect
of such conduct is to commission crimes by subordinates.
- The Trial Chamber notes that the regulations concerning the application
of the laws of war to the armed forces of the SFRY, which would have been
known to the Accused, provided under the heading “Responsibility for the acts
of subordinates ” that, inter alia, “a military commander is responsible
as a participant or an instigator if, by not taking measures against subordinates
who violate the law of war, he allows his subordinates units to continue to
commit the acts.”291
In situations where a person in authority under duty to suppress unlawful
behaviour of subordinates of which he has notice does nothing to suppress
that behaviour, the conclusion is allowed that that person, by positive acts
or culpable omissions, directly participated in the commission of the crimes
through one or more of the modes of participation described in Article 7(1).
- Proof of all forms of criminal responsibility can be given by direct or
circumstantial evidence.292
For instance, “ordering ” – a form of responsibility emphasized by the Prosecution
in its Final Trial Brief – may be inferred from a variety of factors, such
as the number of illegal acts, the number, identity and type of troops involved,
the effective command and control exerted over these troops, the logistics
involved, the widespread occurrence of the illegal acts, the tactical tempo
of operations, the modus operandi of similar acts, the officers and
staff involved, the location of the superior at the time and the knowledge
of that officer of criminal acts committed under his command.293
- In order for individual criminal responsibility to ensue, conduct must
be coupled with intent. The requisite mens rea for all forms of participation
under Article 7(1) is that the accused “acted in the awareness of the substantial
likelihood that a criminal act or omission would occur as a consequence of
his conduct.”294 The
mens rea of the accused need not be explicit but may be inferred from
the circumstances.295
2. Article 7 (3) of the Statute
- The case-law of the International Tribunal establishes that the following
three conditions must be met before a person can be held responsible for the
criminal acts of another under Article 7(3) of the Statute: (1) a superior-subordinate
relationship existed between the former and the latter; (2) the superior knew
or had reason to know that the crime was about to be committed or had been
committed; and (3) the superior failed to take the necessary and reasonable
measures to prevent the criminal act or punish the perpetrator.296
The Appeals Chamber has said that control must be effective for there to be
a relevant relationship of superior to subordinate.297
Control is established if the commander had “the power or authority in either
a de jure or a de facto form to prevent a subordinate’s crime
or to punish the perpetrators of the crime after the crime is committed.”298
The Appeals Chamber emphasised that “in general, the possession of de jure
power in itself may not suffice for the finding of command responsibility
if it does not manifest in effective control, although a Court may presume
that possession of such power prima facie results in effective control
unless proof to the contrary is produced.”299
- In the absence of direct evidence of the superior’s actual knowledge of
the offences committed by his or her subordinates, this knowledge may established
through circumstantial evidence. The Trial Chamber may consider, inter
alia, the indicia given by the United Nations Commission of Experts in
its Final Report on the armed conflict in former Yugoslavia.300
The Trial Chamber also takes into consideration the fact that the evidence
required to prove such knowledge for a commander operating within a highly
disciplined and formalized chain of command with established reporting and
monitoring systems is not as high as for those persons exercising more informal
types of authority.
- In relation to the superior’s “having reason to know” that subordinates
were about to commit or had committed offences, “a showing that a superior
had some general information in his possession which would put him on notice
of possible unlawful acts by his subordinates would be sufficient to prove
that he had ‘reason to know’.”301
The information available to the superior may be in written or oral form.
It need not to be explicit or specific.302
For instance, past behaviour of subordinates or a history of abuses might
suggest the need to inquire further. It is not required that the superior
had actually acquainted himself or herself with the information in his or
her possession.303
- The evaluation of the action taken by individuals in positions of superior
authority who have a legal duty to take all necessary and reasonable measures
to prevent the commission of offences by their subordinates or, if such crimes
have been committed, to punish the perpetrators, must be done on a case-by-case
basis. Furthermore, it must be kept in mind that the superior is not obliged
to perform the impossible; “a superior should only be held responsible for
failing to take such measures that are within his material possibility”.304
- Finally, in cases where concurrent application of Articles 7(1) and 7(3)
is possible because the requirements of the latter form of responsibility
are satisfied alongside those of the former, the Trial Chamber has the discretion
to choose the head of responsibility most appropriate to describe the criminal
responsibility of the accused.305
III. FACTUAL AND LEGAL FINDINGS
- In this third part, the Trial Chamber will explore what are the particular
facts of the case and whether these particular facts support beyond reasonable
doubt findings that the crimes alleged in the Indictment, charged under Articles
3 and 5 of the Statute and as as examined in Part II, were committed.
A. General Remarks on Terminology and Evidence
1. Introduction
- The Trial Chamber heard 171 witnesses, resulting in 22,016 pages of transcript.
In addition, a total of 1,268 exhibits and 15 experts’ reports were admitted.
- In August 2003, the Prosecution disclosed material after the closing of
the case pursuant, inter alia, to its obligations under Rule 68 of
the Rules. The Defence reacted and regarded part of this material exculpatory.
The Trial Chamber, upon review of the material disclosed, finds that, apart
from one piece of evidence, the evidence lately disclosed by the Prosecution
is redundant or does not concern the Indictment Period. The only piece of
evidence not discussed at trial consists of a video interview about an incident
where the Bosnian Croat Army (HVO) allegedly shelled ABiH-held territory in
Sarajevo.306 The Trial
Chamber does not find that information related to this incident, even if true,
tends to suggest the innocence or mitigate the guilt of the Accused or may
affect the credibility of Prosecution evidence; in fairness to the Accused,
this material is however admitted into evidence for the purpose of a better
understanding of the overall context of the conflict in Sarajevo during the
Indictment period. On 18 November 2003, the Trial Chamber was informed that
the Prosecution had disclosed additional material to the Defence, and received
it pursuant to Rule 67(D) of the Rules. The Trial Chamber asked for a position
of the Defence on this additional material. The Defence has however not filed
any comment with the Trial Chamber in the following thirteen days. In the
silence of the Defence on the character of the material, the Trial Chamber
does not consider this material, and refrains from any decision on the matter.
2. Definitions of “Campaign” and “Sniping”
(a) Campaign
- The Indictment alleges the existence of a “campaign” without providing
a definition of the term. The Prosecution’s understanding of the campaign
can be derived relatively easily from the Indictment, which states that a
“military strategy” of shelling and sniping was used to kill and wound the
civilian inhabitants of Sarajevo; that this was “coordinated” and “protracted”;
that the acts in question were “widespread or systematic”; and that they were
performed between September 1992 and August 1994.307
In light of this, the Trial Chamber understands the word “campaign” in the
context of the Indictment to cover military actions in the area of Sarajevo
during the Indictment period involving widespread or systematic shelling and
sniping of civilians resulting in their death or injury.
(b) Sniping
- The Prosecution defines the term “sniping” as “fire from a small calibre
weapon, such as [a] rifle or machine-gun, from a concealed, or partially concealed,
position ”.308 The Defence
contests this definition as being too broad and defines “sniping” as fire
from “a special rifle with [an] optical sight” and claims that the SRK did
not have such rifles.309
- The Indictment does not give a definition of “sniping”. However, the counts
related to sniping activity refer to “deliberate targeting of civilians with
direct fire weapons,”310
and Schedule 1 of the Indictment alleges incidents perpetrated with weapons
such as machine-guns.311
The Accused was therefore on notice that the “sniping” alleged against him
was not limited to incidents committed with special sniping rifles equipped
with an optical sight. Furthermore, the common definition of sniping is given
in terms of the direct targeting of an individual or object, a special rifle
not being a necessary part of the definition.312
While it is true that both Witness DP36,313
an SRK soldier, and Mustafa Kovac,314
head of the Civil Defence in Sarajevo, limited the meaning to infantry
weapons possessing an optical sight, Francis Briquemont, Commander of
UN forces in Bosnia -Herzegovina in 1993-1994, defined a sniper as an elite
firer who shoots from a long distance at individual targets,315
and John Hamill, an artillery officer who was a Military Observer with the
United Nations (UNMO),316
said that a sniper, in a military sense, is somebody who will target specific
individuals at long range and kill them.317
Hamill approved the definition of “sniping” in a report entitled “Weaponry
in the Former Yugoslavia” written by Tetsuo Ani, a Canadian army officer:
[“sniping”:] a term used indiscriminately in the conflict
of the former Yugoslavia, applied usually to the targeting of civilians,
with a variety of single-shot and multiple-shot (machine guns) weapons.
The expression derives from the fact that the source of fire is usually
so well concealed that it is difficult to pinpoint. Sniping, in the military
sense is conducted for specific purposes, sometimes using specialised
weapons that are expressly designed for sniping.318
- The Trial Chamber finds that in the context of the present case, sniping
must be understood as direct targeting of individuals at a distance using
any type of small calibre weapon.
3. Evaluation of Evidence
- The Trial Chamber, mindful that the burden of proof lies with the Prosecution,
has evaluated the evidence adduced at trial in accordance with the Statute,
the Rules, and accepted international standards and general principles of
law.
- The Indictment states that “All Counts in this indictment allege the totality
of the campaigns of sniping and shelling against the civilian population but
the scale was so great that the Schedules to the individual groups of counts
in this indictment set forth only a small representative number of individual
incidents for specificity of pleading.”319
The Indictment, insisting on the word “campaign,” set out to make a wide-ranging
case against General Galic.
- The Appeals Chamber assented to this view, namely that the scheduling of
certain incidents was necessary to satisfy the standard of specificity applying
to indictments :
an indictment pleaded in the very general terms in the
body of this indictment, without at least some of the details given in
the two schedules, would not have given adequate notice to Galic of the
nature of the case he had to meet. […] Essential material facts omitted
from the body of the indictment are the areas where the sniping and shelling
caused injuries to the civilian inhabitants of Sarajevo, the approximate
dates upon which the relevant events occurred, and also, in relation to
the shelling, the areas from which the shelling originated. The only place
where those material facts can be found is in the two schedules.320
- Thus the Schedules serve a procedural requirement – that of proper notice.
They should not be understood as reducing the Prosecution’s case to the scheduled
incidents, and the trial was not conducted on that understanding. Much evidence
was led tending to support the Prosecution’s general case, which on the face
of it (“shelling and sniping killed and wounded thousands of civilians”)321
goes beyond what could reasonably be based on scheduled incidents. Therefore,
the Trial Chamber has paid due attention to the scheduled incidents, for they
are alleged to exemplify the overall situation in Sarajevo. In respect of
these incidents, the Trial Chamber gave particular attention to questions
of distance between the victim and the most probable source of fire; distance
between the location where the victim was hit and the confrontation line;
combat activity going on at the time and the location of the incident, as
well as relevant nearby presence of military activities or facilities; appearance
of the victim as to age, gender, clothing; the activity the victim could appear
to be engaged in; visibility of the victim due to weather, unobstructed line
of sight or daylight. The Trial Chamber was hence in a position to assess
in each case, in accordance with the law set out in Part II of this Judgement
and in fairness to the Accused, whether a scheduled incident is beyond reasonable
doubt representative of the alleged campaing of sniping and shelling or whether
it is reasonable to believe that the victim was hit by ABiH forces, by a stray
bullet, or taken for a combatant.
- At the same time, the Trial Chamber has given no less attention to evidence
of non-scheduled sniping and shelling incidents as well as to evidence of
other aspects of the situation in Sarajevo. The scheduled incidents have thus
been considered by the Trial Chamber within a more general evidentiary context,
reflecting how the great number of witnesses in the case understood them and
explained them. Witness evidence together with documentary evidence has been
chosen, combined, and arranged by the Trial Chamber in accordance with its
relevance, the credibility of its source, and its probative value, with due
regard to the fact that the present Indictment alleges unlawful conduct and
responsibility for such conduct going beyond what is referred to in the scheduled
incidents.
- The Trial Chamber was confronted with the difficulty that maps used or
marked by witnesses had no scale indicated on them. Some of these maps did,
however, indicate minutes of latitude. It is common knowledge that one degree
of latitude equals approximately 111 kilometres, irrespective of location,
and that a minute is 1/60th of one degree. On this basis, the Trial Chamber
has been able to determine or verify distances between points marked by witnesses
on maps with an acceptable degree of accuracy. The Trial Chamber agrees with
the Defence that the scale of the map admitted into evidence as exhibit C2
is 1:50,000.322
- The Trial Chamber turns now to a review of events preceding the Indictment
Period for a better understanding of the context in which the case is situated,
in particular the history of the break-up of the Socialist Federal Republic
of Yugoslavia (“SFRY”), which has been described in previous Judgements of
this Tribunal and need not be repeated in lengthly detail here.323
B. Events Leading to the Military Encirclement
of Sarajevo in 1992
1. Break-up of the SFRY
- From 1945 to 1990 the SFRY was composed of six republics: Croatia, Bosnia
and Herzegovina (“BiH”),324
Macedonia, Montenegro, Serbia (comprising the autonomous regions of Kosovo
and Vojvodina), and Slovenia. BiH was unique in that no ethnicity had a majority
and therefore no distinct “Bosnian nation” was recognized within the constitutional
order.325
- After 18 November 1990326
the Assembly of BiH was dominated by the three leading nationalist parties:
the Croatian HDZ, the Serbian SDS, and the Muslim SDA. In Sarajevo, the three
parties divided among themselves key positions at both municipal and republican
levels.327 Alija Izetbegovic,
a Muslim, became President of the BiH Republic.328
- Slovenia and Croatia declared their independence from the SFRY in June
1991 ; during the following months, they strove to establish themselves as
sovereign states.329
This had an impact in BiH. In September 1991, the Main Board of the SDS recommended
the formation of Serbian Autonomous Regions. The first of these was the region
of Romanija-Birac in the Sarajevo area, which included, since its inception
on 17 September 1991, the municipality of Pale and, from 24 December 1991,
the municipality of Ilijas.330
On 15 October 1991, after the Assembly had adjourned for the day by its President
Krajisnik, the SDS delegates departed; however, HDZ and SDA delegates reconvened
and passed a “Declaration of Sovereignty.” The Declaration blamed the federal
government for the disintegration of the SFRY and proclaimed the sovereignty
of BiH.331
- On 24 October 1991, BiH Serbs formed the Assembly of the Serbian People
of BiH332 and, in a plebiscite
held on 9 and 10 November, overwhelmingly voted to remain part of the SFRY.333
By the end of 1991, Yugoslav People’s Army (“JNA”) troops and tanks, withdrawn
from Slovenia and Croatia, headed towards strategic locations in BiH.334
On 9 January 1992, the Serbian Republic of BiH (Republika Srpska) was proclaimed
with the aim of confederating part of BiH with the SFRY, or otherwise of declaring
secession from BiH in order to join the SFRY.335
During the first months of 1992, Serbian institutions in competition with
the ones controlled by the Presidency of the BiH Republic (“the Presidency”)
were established throughout BiH, including in most of Sarajevo’s ten municipalities.336
- On 26 November 1991, the SFRY government requested the Security Council
to send a peace-keeping mission to the SFRY.337
On 21 February 1992, the Security Council decided to establish the UN Protection
Force (UNPROFOR) to “create the conditions of peace and security required
for the negotiation of an overall settlement of the Yugoslav crisis”.338
Shortly thereafter, the Parliament of BiH organized a referendum on independence
from the SFRY, held on 29 February and 1 March 1992 and boycotted by Bosnian
Serbs. With full support from BiH Croats and Muslims, the Presidency declared
BiH an independent state on 3 March 1992.339
In early March 1992, conflict broke out along ethnic lines in various locations
in BiH.340 In April 1992,
pursuant to a decision by the BiH Presidency, loyal Territorial Defence units,
together with paramilitary groups, Bosnian-Croat forces (HVO), and Muslim
JNA officers, were gradually incorporated into the Army of BiH (“ABiH”).341
2. Sarajevo: Armed Conflict and Military Encirclement
- Sarajevo, the capital of BiH, is built in a hilly region along an east-west
axis which follows the Miljacka River.342
By 1992, Sarajevo had grown into the most important political, cultural, industrial,
and commercial centre of BiH.343
It was relevant to all BiH ethnic groups both as a symbol and for its strategic
location.344
- Sarajevo was made up of ten municipalities: Stari Grad (Old Town), Centar
( Centre), Novo Sarajevo, Novi Grad, Vogosca, Ilidza, Pale, Ilijas, Hadzici,
and Trnovo.345 According
to the 1991 census, the municipality of Pale was the only one in which BiH
Serbs constituted an absolute majority (around 69%). The Serbs were a simple
majority in Ilidza and Ilijas. In Novo Sarajevo they were in approximately
equal numbers to the Muslims.346
(a) April 1992: Armed Conflict Erupts in Sarajevo
- In early March 1992, barricades and checkpoints were erected in Sarajevo
by both SDS and SDA members.347
Forces loyal to the BiH Presidency seized strategic buildings and military
equipment, while the SDS gradually took control of much of the city’s western
and northern suburbs.348
Much evidence at trial highlighted the psychological impact of a killing of
a Serb during a wedding party on 1 March 1992.349
Armed conflict broke out after the European Community recognized BiH as a
sovereign state on 6 April 1992.350
Extensive gunfire erupted in Sarajevo, with each side accusing the other of
having started the hostilities.351
Also on 6 April, according to the Donia Report, the JNA attacked the Ministry
of Training Academy in Vrace, the central tramway depot, and the Old Town
district with mortar, artillery, and tank fire, and JNA units seized control
of Sarajevo’s airport.352
“The JNA expanded its control of approaches to the city by establishing road
blocks along key roads. By the end of April, the contour of Sarajevo’s siege
was largely established.”353
On 22 April 1992, a peace rally in front of the Assembly of the Republic was
broken up by shots coming from the Holiday Inn.354
(b) May 1992: Further Attacks in Sarajevo and
Establishment of a Bosnian-Serb Army
- On 2 May 1992, a major JNA attack on the centre of Sarajevo occurred while
President Izetbegovic was in Lisbon for negotiations. That day, Tarik Kupusovic,
a member of the town council, witnessed tanks approaching from Lukavica, a
neighbourhood in the southern part of Sarajevo, and opening fire on the Presidency
building. Fire was returned from those buildings. Forces loyal to the BiH
Presidency prevented the JNA from storming the Presidency, but only barely.355
“After that the town was exposed to very heavy shelling. A couple of days
later the Bascarsija, the centre of old Sarajevo, was set alight, the national
and university libraries, the railway station, the post office and many key
buildings in town were heavily shelled and destroyed. […] This started already
on the 2nd or 3rd of May and went on for several weeks, with interruptions,
went [on] every day or every other day we experienced shocks. Zetra was destroyed,
the Olympic Sports Hall, […] the railway station had gone, […] many apartments
buildings had burned or several floors of those buildings and several apartments.
[…] The buildings that I mentioned are scattered all over town, so one could
not identify a particular part of town being targeted, except for the buildings
themselves, that were symbols of the town and were essential for its functioning,
like the post office, the railway stations, the Zetra sports hall, and similar
such facilities.”356
- After the JNA partially withdrew,357
the parliament of Republika Srpska on 12 May 1992 ordered the formation of
the Bosnian -Serb Army (“VRS”),358
designating General Ratko Mladic Chief of its General Staff.359
On 22 May 1992 BiH was admitted as a member state of the United Nations.360
The Security Council called for the withdrawal of foreign forces, including
the JNA, from BiH territory.361
That same day, General Mladic ordered the formation of the Sarajevo Romanija
Corps (“ SRK”),362 one
of the five constituent Corps of the VRS. It was to be located in the greater
Sarajevo area, the former zone of responsibility of the 4th JNA Corps.363
JNA elements joined local Territorial Defence forces364
and participated in organizing and staffing the SRK.365
The SRK comprised overall about 18,000 soldiers366
divided into ten to thirteen brigades,367
ranging from a few dozen troops to several thousands,368
themselves divided into battalions and companies.369
The main SRK forces were positioned around what was colloquially called the
inner ring of Sarajevo, in particular in the area of Ilidza, Nedarici and
Grbavica.370 Until the
end of 1992, seven SRK brigades were positioned in that part of confrontation
lines constituting the “inner ring”, whose length was some 55 kilometres.371
Auxiliary forces of the Corps were positioned on the so-called exterior ring
of the Sarajevo front, which length was some 180 kilometres.372
(c) June/September 1992: Intensification of Attacks
in Sarajevo and Further Deployment of UN forces
- The Trial Chamber was provided with evidence that, between May and September
1992, shelling of military and civilian targets within the city of Sarajevo
by both sides continued,373
and fighting was intense and brutal.374
- On 8 June 1992, with Resolution 758, the Security Council enlarged the
mandate and strength of UNPROFOR and authorized the deployment of UN Military
Observers (“UNMOs”). By Security Council Resolution 761 of 29 June 1992, UNPROFOR
was tasked with protecting Sarajevo airport, a strategic location south-west
to the city, and with helping it function so that humanitarian aid could reach
the population.375 In
the summer of 1992, pursuant to an agreement with the UN, the SRK handed over
Sarajevo airport to UNPROFOR.376
From that moment on, the airport was only to be used by UN personnel for UN
purposes.377 UNPROFOR’s
mandate was again broadened by Security Council Resolution 776 of 14 September
1992, to include the protection of convoys of humanitarian aid.378
At least three military battalions, French,379
Egyptian, and Ukrainian, were positioned in the city.380
Each consisted of around 500 to 600 soldiers.381
The headquarters of the UN troops in charge of “Sector Sarajevo” were in the
Post Office (PTT) building in downtown Sarajevo382
and the warring factions had liaison offices there to maintain contact with
UNPROFOR and file protests on alleged violations of rules and agreements by
the other party.383
- On 1 September 1992, the ABiH troops positioned in and around Sarajevo
formally came to be known as the 1st ABiH Corps.384
In 1993, some 75,000 troops of the 1st Corps were placed within the confrontation
lines around Sarajevo. Approximately half of them were positioned in the city
itself,385 while the
other half was positioned along the confrontation lines outside the city.386
The two opposing forces in the Sarajevo sector were observed by military monitoring
teams (UNMOs) in stations code-named LIMA (outside the city to cover SRK positions
) and PAPA (in the city to cover the territory controlled by the ABiH).387
There were around 60 observers as of February 1993, spread out over a total
of 14 observation posts (11 LIMAs and 3 PAPAs).388
However, it was generally thought that, due to insufficient numbers, UNMOs
could not effectively cover each assigned area.389
- Confrontation lines encircling the portions of the city under ABiH forces
were in place by 10 September 1992, when General Galic took up his duties
as SRK commander. The necessity for VRS forces – and for the SRK in particular
– to “blockade” the city is recognized by the Radinovic Report, as well as
the strategic objective of the ABiH of “de-blocking” the city.390
Members of the UNPROFOR present in Sarajevo clearly described the success
of the SRK in creating “siege” conditions.391
The map attached to this Judgement in annex D shows the extent of the inner
ring formed by the ABiH and the SRK confrontation lines facing each other
in the city of Sarajevo. The confrontation lines remained relatively static
throughout the Indictment Period.392
C. Was there a Campaign of Sniping and Shelling
by SRK forces against Civilians?
- The Prosecution alleges that “for forty-four months, the Sarajevo Romanija
Corps implemented a military strategy which used shelling and sniping to kill,
maim, wound and terrorise the civilian inhabitants of Sarajevo. The shelling
and sniping killed and wounded thousands of civilians of both sexes and all
ages, including children and the elderly”.393
The Defence submits that the “City was neither shelled, nor targeted from
snipers. When the SRK units acted, they always acted in self-defence, and
only and exclusively on legitimate military targets in the city and on enemy’s
firing position”.394
It argues that a war was being waged in an urban setting, which “always includes
collateral damages, especially when one side is not respecting its own obligations,
like it was the case with the Muslim side, namely the obligation to remove
civilians from the zone of military activities”, and “despite all precautions,
it is not possible to control the opening of fire and the firing in urban
conditions to avoid civilian casualties”.395
The Defence argues that the BiH Presidency intentionally attacked civilians
on its side, pretending it came from the other belligerent party, to provoke
the sympathy of the international community in favour of the BiH Presidency.396
- In this section, the Trial Chamber reviews the evidence of deliberate sniping
and shelling of civilians, both under the heading of scheduled incidents and
at a more general temporal and geographical level. In fairness to the Accused,
but also because of the amount of evidence relating to the scheduled incidents
and the manner in which it was introduced and dealt with, the Trial Chamber
recalls that it paid due attention to those incidents. It tried to the extent
that was possible and reasonable to assess each scheduled incident on its
own terms, but also with a limited reference to other evidence concerning
the situation of civilians in Sarajevo. By this method, the Trial Chamber
will make findings on whether the Prosecution has proved that the SRK deliberately
carried out any of the alleged scheduled sniping and shellig attacks attacks
against civilians or against persons whose status should have been presumed
to have been civilian.
- The Majority wishes to clarify at this point its reasoning in moving from
the level of specific scheduled incidents to the level of a general campaign.
It would be implausible to claim that 24 sniping attacks and 5 shelling attacks
amounted to a “campaign”, in the sense above. The Majority makes no such claim.
Spread out over a period of two years, the total of proved attacks, if any,
could not in itself represent a convincing “widespread” or “systematic” manifestation
of sniping and shelling of civilians. Therefore, the evidence which demonstrates
whether the alleged scheduled incidents, if proved attacks, were not isolated
incidents but representative of a campaign of sniping and shelling as alleged
by the Prosecution is examined with no less due attention.
- The Trial Chamber will examine first general evidence of sniping and shelling
at civilians in ABiH-held areas of Sarajevo, then turn to evidence of sniping
and shelling at civilians in specific geographical areas of Sarajevo to consider
whether, as alleged by the Prosecution, the sniping and shelling at civilians
was conducted throughout the city of Sarajevo, that is in urban and rural
neighbourhoods of Sarajevo.
1. General Evidence of Sniping and Shelling at
Civilians in ABIH-held Areas of Sarajevo during the Indictment Period
- The city of Sarajevo came under extensive gunfire and was heavily shelled
during the Indictment Period. This is documented by UN reports, and other
UN sources, which offer general assessments of the death or injury of Sarajevo
civilians in the course of such attacks.397
John Hamill, a military observer who served with UNPROFOR from May 1993 to
July 1994,398 explained
that “Very, very few [shelling] incidents actually stand out” in his mind
because there were “a whole series of attacks that went on killing civilians
in the city of Sarajevo” during his stay there.399
Francis Thomas, a Canadian officer who oversaw UNMOs in Sarajevo from October
1993 to July 1994,400
testified that upon his arrival the bulk of the shelling was directed at the
city of Sarajevo and he could detail cases in which UN representatives observed
“artillery fire on the ground, hitting civilians”.401
A 1993 UNPROFOR report indicated that shelling had resulted in a “High level
of civilian casualties relative to recent months”.402
- The Defence submits however that the evidence suggests that the ABiH carried
out attacks againt their own civilians to attract sympathy of the international
community. The Prosecution accepts that the Trial Record discloses that elements
sympathetic or belonging to the ABiH may have attacked the Muslim population
of Sarajevo although it argues that this evidence was inconclusive.403
The Trial Chamber notes in this respect that Pyers Tucker, a British officer
who served with UNPROFOR, testified that with respect to the firing upon a
funeral taking place in a cemetery north of Kosevo hospital, “people from
[the United Nations] headquarters Sector Sarajevo, and I can name them if
you need, told me that they had carried out investigations […] and that they
believed that that fire had come from Bosniak forces”.404
Similarly, a Canadian officer with the UNPROFOR testified that it was “‘common
knowledge’ that [investigations carried out by the United Nations] strongly
pointed to the fact that the Muslim forces did, on occasion, shell their own
civilians” though, “for political reasons,” that information was not made
public.405 Richard Mole,
Senior UNMO from September to December 1992, testified that he was “sure –
though [he could not] give evidence of fact – that incidents occurred where,
to perpetuate [the view that the population of Sarajevo was beleaguered] …
the Presidency forces may well have fired upon their own city to maintain
that beleaguered viewpoint”. He added that United Nations investigations of
certain incidents occurring in the Sarajevo during the conflict had concluded
that “there was an element of doubt as to [whether the SRK or the ABiH] had
done the damage”.406
According to Michael Rose, the British general who commanded UNPROFOR forces
in Bosnia-Herzegovina from January 1994 to January 1995, what “was certain
is that the Bosnian governement forces would, from time to time, fire at the
Serbs, at particular moments of political importance, in order to draw back
fire on to Sarajevo so that the Bosnian government could demonstrate the continuing
plight of the people in Sarajevo”.407
- On other occasions, UN sources also attributed civilian injuries and deaths
to SRK actions, including deliberate targeting. According to General Francis
Briquemont, who commanded UN forces in Bosnia-Herzegovina from 12 July 1993
to 24 January 1994,408
“There is no doubt that during the shelling” of Sarajevo by the SRK, “civilians
were hit.”409 An ABiH
source also attributed responsibility for civilian injuries and deaths in
the city to the SRK. By letter dated 9 December 1993, ABiH General Rasim Delic
complained to UNPROFOR that “the city of Sarajevo has been exposed to heavy
shelling”, leading to “a great number of casualties among civilian population
[…] I take this opportunity to inform you that I have warned [the SRK] to
stop the actions against the city of Sarajevo, otherwise I will have to issue
an order to the units of the [ABiH] to respond to the same level.”410
- The Defence repeatedly proposed to witnesses who served the UN in Sarajevo
that the physical damage was greater on the front line than in the city, implying
that the casualties inflicted in the city were unintentional. The Trial Record
shows however that there was more shelling going into the city and
that civilians, and the civilian population as such, in ABiH-held areas of
Sarajevo were targeted from SRK controlled territory.
- Hamill recounted an admission by an SRK officer to whom he spoke in relation
to the Markale incident in February 1994: Colonel Cvetkovic “was the commanding
officer of the Bosnian Serb army artillery regiment based in Mrkovici. We
interviewed him in connection with this incident because he was designated
by Republika Srpska authorities to deal with us. […] he also said that in
the previous year, they had fired 30 to 40,000 rounds into the city and why
were we so concerned about one round when they had fired so many”.411
An undated UNPROFOR military assessment of the situation in the city stated,
without indicating its basis for doing so, that “Not all [SRK] shelling is
provoked. The [SRK soldiers] often deliberately shell civilian targets in
order to create civilian casualties.”412
- John Ashton, who arrived in Sarajevo in July 1992 as a photographer,413
remembered that during his stay in Sarajevo, “The majority of things – the
targets I saw were civilian targets. I saw a lot of people go out to water
lines. These were targeted specifically. And I saw people try to cut down
trees. I saw snipers actually shoot at people.”414
Morten Hvaal, a Norwegian journalist covering the conflict from September
1992 to August 1994,415
witnessed civilians being shot at “more or less every day, if not every day”416
and estimated that he saw, or arrived within 30 minutes of, “50 to a hundred”417
instances where civilians were actually hit by small-arms fire. Mirsad Kucanin,
a criminal inspector with the Centre of the Security Service in Sarajevo,418
performed more than a hundred investigations of shooting and shelling incidents
in the city of Sarajevo, and “in all of them, casualties were civilians.”419
Kucanin knew of at least 30 instances during the conflict when UNPROFOR was
informed of shooting directed at civilians and took action such as placing
armoured personnel carriers to block lines of sight.420
Mustafa Kovac, who worked with the Civil Defence organization in Sarajevo,421
explained that frequent shelling had caused civilian casualties in the city
in 1992.422
- Akif Mukanovic, soldier with the ABiH, said that he felt more secure at
the frontline than elsewhere in Sarajevo because “fire was opened less often”
at the confrontation lines.423
This is concordant with the explanation given by Milan Mandilovic, surgeon
at the State Hospital, as to why civilian patients received at the State Hospital
out-numbered combatants at least four to one.424
He said:
Sarajevo is a relatively large city with quite a large
population, and you couldn’t keep that entire population in a basement.
The population had to move around. People went to work. They had to go
and fetch foodstuffs or humanitarian aid. […] And it is precisely because
of that that there were far more injured and wounded civilians coming
into hospital. The soldiers were on the outskirts of town, and probably
in trenches too, so that they did have some protection, and there were
fewer of them, fewer soldiers than there were civilians.425
- The Trial Record also contains evidence that civilians were deliberately
targeted while engaged in civilian activities or while in civilian locations.
- Ashton testified about fire-fighters targeted when tending fires started
by shelling. He observed “an attack which lasted for an hour right next to
the PTT building which hit a factory. The firemen came out to fight the fire
and then of course there was a lull in the shelling and as soon as the firemen
arrived they started firing again, the shells started coming in again.”426
In another occasion, during the shelling of a bakery compound, “the fire department
responded despite the fact the shells continued to come down.” According to
that witness, in that instance, UNPROFOR determined that the shelling had
come from Grbavica, SRK-held territory.427
- Ambulances were also targeted. They were sometimes driven at night, without
flashing their lights, and not on main roads to avoid being fired upon.428
Witness AD, an SRK soldier, testified that the Commander of the Ilijas Brigade
gave orders to his mortar battery to target ambulances, a marketplace, funeral
processions, and cemeteries further north from the city, in Mrakovo.429
- Hvaal testified that during the Indictment Period he attended funerals
several times a week and saw that the Bosnian Serb army would shell them.
On 20 to 30 occasions he claimed to have experienced a funeral procession
being shelled. Hvaal pointed out that, over time, covering a cemetery became
eventually very dangerous. Because of this, by the end of 1993 it “has become
the rule” that funerals would be held only at night.430
Harding, a UNMO in Sarajevo from July 1992 until January 1993, said that funerals
at the Lion Cemetery “took place all the time. Sometimes three or four at
a time”. “Funerals were a fairly common thing to be attacked, and so it wasn’t
unusual.” The attacks came from the north and north-east, “from the Bosnian
Serb forces.” He gave evidence to the effect that the front line was so close
at that point and that the Lion cemetery could be observed from it.431
Such attacks “happened a lot, it became normal and because it was considered
normal, we didn’t make a report on it.”432
The digging of graves and holding of funeral services were conducted at night,433
and in some cases burials were not in cemeteries at all.434
- According to UN military personnel, trams were also deliberately targeted
by Bosnian Serb forces. Fraser, an UNPROFOR representative in Sarajevo from
April 1994 onwards, testified: “I can indicate to you there was one shooting
in the city on the tram, where some people were shot and killed and they were
identified as civilians.”435
Adrianus Van Baal, UNPROFOR Chief of Staff in Bosnia-Herzegovina in 1994,
testified that on 16 March 1994 General Milovanovic, the Chief of the Main
Staff of the VRS, threatened that if the trams in Sarajevo continued to run,
he would ensure that they and their passengers would be targeted. Van Baal
said that following the threat, the trams which continued to run were indeed
targeted.436
- Civilians in ABiH-held areas of Sarajevo deferred even basic survival tasks
to times of reduced visibility, such as foggy weather437
or night time, because they were targeted otherwise. Civilians would often
collect wood at night, in particular, older people, “because they couldn’t
move as fast and they knew it was risky to travel during the day.”438
Schools were closed, and temporary neighbourhood schools were established
in cellars, to minimize the distance that children had to travel to their
classes, and therefore their exposure to sniping and shelling.439
Many civilians lived for a long period of time in the cellars of their buildings
in order to avoid the shells.440
They learned to move around as little as possible,441
rarely leaving their apartments:442
some old people were “literally dying of malnutrition because they were too
terrified to come out.”443
- Because obtaining food and water was fraught with danger, since both involved
queuing for prolonged periods with the risk of being targeted, Kovac testified
that the Civil Defence varied the sites for the distribution of food provided
by humanitarian agencies.444
When the water supply failed, international aid agencies supplied water pumps
which were installed at suitable locations around the city.445
Residents had to wait, sometimes for a day, before their turn to fill their
containers. UN troops had to frequently modify the locations where citizens
gathered to receive humanitarian aid in order to avoid being targeted by shells.446
- Civilians venturing from their homes for these chores would often accompany
each other, so that if they were wounded there would be assistance. One witness
said she would always go out with someone, in case she was wounded, since
she was living alone with three children. Sometimes children accompanied the
women, to help carry the water.447
Civilians also developed alternative routes to traverse the city, which offered
a greater degree of cover from sniper fire from SRK-held areas. Even so, these
routes could afford no protection from shelling with indirect fire weapons,
such as mortars.448
- To Kovac, “More or less every neighbourhood [of Sarajevo] was shelled during
the conflict.”449 The
Prosecution adduced detailed evidence in relation to specific areas of the
city of Sarajevo held by ABiH forces to support its allegation that civilians
therein were targeted throughout the Indictment Period from SRK-controlled
areas.
2. Sniping and Shelling of Civilians in Urban ABiH-held
Areas of Sarajevo
(a) General Grbavica Area
- The Prosecution alleges that the high-rise buildings in the area of Grbavica
“were notorious among Sarajevans and internationals as a source of sniping
fire directed to civilians”.450
It claims that “the suitability of this site for sniping civilians in the
city was unparalleled, not only for the close proximity from which SRK forces
could snipe into the heart of the city from a height, but more particularly
because at that point the width of the city was quite narrow, exposing all
traffic, including pedestrian, trams, buses and other vehicular traffic, that
traversed the city on an east-west axis, to fire from these high-rise apartment
buildings.” 451
- Grbavica was a neighbourhood in the Municipality of Novo Sarajevo located
in the southern-central part of the city of Sarajevo. It was under SRK control
throughout the Indictment period.452
Both parties are in agreement on this point. Maps marked by Prosecution and
Defence witnesses indicate that the confrontation line in Grbavica ran along
the Miljacka River, with Grbavica lying to the south.453
The area of Vrace, to the southwest of Grbavica, was also under the control
of the SRK during the Indictment period.454
- The evidence shows that civilians in Novo Sarajevo were targeted from the
SRK -controlled area of Grbavica. From October 1993 to March 1994, when Afzaal
Niaz, an UNPROFOR representative, was on duty in Sarajevo, there was, according
to this witness, frequent sniping from the south-eastern side of the confrontation
line in Grbavica.455
Jacques Kolp, UNPROFOR Liaison Officer with the ABiH from March 1993 to November
1994, testified that it was common knowledge that sniper fire originated in
the Grbavica area, “in the buildings on the other side of the river”.456
Aernout Van Lynden, a Dutch journalist who visited Sarajevo several times
during the Indictment period,457
recounted that the sniper positions held by the SRK, in particular within
Grbavica, were dangerous, as they allowed soldiers to “literally shoot down
streets” in this central part of Sarajevo.458
John Ashton testified that “there was gunfire coming across the river from
Grbavica directly into the city, between the buildings, near the university
and near the Holiday Inn and near the museum”. He was later informed by SRK
soldiers in Grbavica that “that’s where they had their front line set up and
that’s where they were firing at people when they crossed the streets.”459
- Some areas of town were deliberately avoided by the population due to the
danger of gunfire originating in Grbavica. The main thoroughfare of Sarajevo,
part of which was called Marshal Tito Boulevard, and Marin Dvor, a central
district, were exposed to frequent gunfire from that area. Jeremy Hermer,
a UNMO at LIMA positions from August 1993 to January 1994,460
testified that the main avenue in Sarajevo, which runs parallel to the Miljacka
River from Stari Grad into the western part of town, became known as “Sniper
Alley.”461 Van Lynden
indicated that much of this road, as well Marin Dvor Square, and the intersection
near the Presidency building, were open to sniper fire from the high -rise
buildings in Grbavica.462
He recalled seeing signs in some areas warning about sniping activity, as
well as barriers across streets for protection of civilians from gunfire from
those positions.463 Morten
Hvaal, a Norwegian journalist covering the conflict from September 1992 to
August 1994, said that throughout 1992 and 1993, before there were any effective
anti-sniper measures in Sarajevo, he was frequently fired upon from buildings
in SRK-controlled Grbavica when driving along “Sniper Alley”.464
From Grbavica the SRK “basically controlled a large chunk of the road that
you had to travel to get to the western part of the city. So it was a case
of picking up as much speed as you could in your car and going past there
as fast as you possibly could”.465
He said that it was possible to see, particularly in the beginning of the
war, “dust, smoke, even muzzle flashes partially because there was no one
to engage them. They were basically at liberty to operate in a fairly relaxed
manner [...] it was pretty easy to figure out where it was coming from.”466
Major Roy Thomas, a senior UNPROFOR Military Observer in Sector Sarajevo from
October 1993 to July 1994, testified that civilians would use covered routes
to avoid “Sniper Alley” although artillery would be brought to bear on those
covered routes; to him, this was an indication that civilians were the targets.467
Fouad Sehbajraktarevic, a local resident, testified that “as you passed along
Titova Street, you had the protection of buildings on either side. As soon
as you reached Marin Dvor, it’s all over. There are snipers that can hit from
any side from Grbavica.”468
- Several witnesses testified that the gunfire from Grbavica was aimed specifically
at civilians. In December 1993, Hermer witnessed several rounds being fired
directly at a crowd of civilians along Sniper Alley, near the government buildings.
He recounted that:
As the rounds hit the ground in front of us, the crowd
which consisted of [...] between 20 and 50 people (s(imultaneously lowered
their bodies and ducked their heads and moved into cover. Everyone did
this simultaneously. It was if it was a well-rehearsed drill. [...] The
only possible targets in that area were the civilians, the road and my
vehicle. [...] Within a few seconds, there was more firing and what had
happened effectively was that the crowd of people who had been moving
from east to west across the road were now stuck either side of that road.
I remember clearly that there was one mother [...] who was separated on
one side of the road from her child who was on our side of the road. What
had happened at that stage was that because the gun that was firing had
a clear line of sight all the way down this road, this effectively split
the city, at that point, into east and west. And any transit across that
road was potentially lethal. [...] Each time somebody emerged from cover
and tried to cross the road, another burst of automatic heavy machine-gun
fire would come [...] crashing down in front of us. When nobody was moving,
the gun wasn't firing.469
David Fraser, an UNPROFOR representative who was in Sarajevo from April
1994 onwards, stated that “in the area of Sniper Alley, there were no military
positions [...] just civilians walking along the street.” They were the
main targets of the shooting.470
Ashton described the situation he witnessed in the central part of the city:
I had seen [...] people trying to cross the bridges,
cross the river in central Sarajevo, especially in Novo Sarajevo. I would
watch them stop and hide behind a tree or behind a wall and then jump
up and run, and then the shot would be fired. I watched at a major intersection
near the Energoinvest building, which was another one of the most dangerous
intersections in all of Sarajevo, because the sniping was consistent at
that intersection. It was a wide, broad area that looked up towards the
corner of Hrasno district and Grbavica where they intersected, but there
was clearly a sniping position that fired down into that every day.471
He said that containers were set up at intersections, such as near the
Presidency and Energoinvest buildings and in the proximity of the Holiday
Inn, to shield against fire coming from Grbavica.472
He pointed out that such barriers did not afford complete protection to
civilians. When he visited SRK positions in Grbavica, he discovered that
it was possible for SRK soldiers to see people crossing the gaps between
the containers, and to target them as they crossed. Moreover, larger-calibre
rounds would go right through the barriers. 473
On one occasion in the winter of 1993 to 1994, Hvaal was driving down Marshal
Tito Boulevard when he came across an elderly woman lying in the street.474
She had been injured at an intersection with a history of heavy sniping
from SRK positions.475
Before he could pull her to safety, she was struck in the head by a second
bullet which killed her.476
On 5 December 1992, Van Lynden saw a civilian apartment block on Marshal
Tito Boulevard being struck by incendiary bullet rounds from SRK territory.477
The incident was filmed by his crew.478
Van Lynden saw civilians escaping the resulting fire479
and was told by the people there that there had been no out-going fire to
precipitate the attack.480
- Ashton described several instances of shelling on civilians. He testified
about a mortar attack in December 1992 which killed a woman and wounded others
in Novo Sarajevo.481
On February 1993, Ashton witnessed an SRK tank fire three shells into the
area of the Holiday Inn near the museum, where there had been no hostile military
activity. He said that civilians were in the street and French and Ukrainian
UNPROFOR troops were stationed by some metal barriers.482
Francis Briquemont, commander of UN forces in Bosnia-Herzegovina from July
1993 to January 1994, said that when he arrived in Sarajevo and drove down
“Sniper Alley” he saw that “almost all the buildings or civilian apartments
were burned or destroyed or had been shelled.”483
He added that “The scope of the destruction on all of the buildings where
people lived, all along Sniper Alley, [...] meant that those buildings were
the systematic target of firing” prior to July 1993.484
UNPROFOR documents reported extensive shooting and shelling in the central
area of Sarajevo during the Indictment period.485
- Mensur Jusic, a local resident, recalled a sniping attack which occurred
in the spring of 1994 on Vojvode Putnika Street.486
It was evening and the witness was returning home from work. As he got off
the tram, he heard a loud burst of gunfire and the sound of bullets hitting
the asphalt. As he ran for cover, he saw a young girl crawling to safety.
She had been hit by a sniper bullet. The witness picked her up and took her
to a shielded passageway between the buildings. He did not see soldiers or
any armed persons at that location nor anyone returning fire.487
Jusic testified that the gunfire had originated in Grbavica, across the Bratstvo-Jedinstvo
Bridge.488 A second incident
he witnessed occurred in the area of the Sarajevo railway station.489
Jusic saw a man on Brodska Street fall to the ground upon being struck by
a bullet. Some people, who were not in uniform and did not carry weapons,
pulled the man away. The gunfire continued.490
Jusic said that the victim was not carrying weapons and was dressed in civilian
clothes, as were the other people in the vicinity.491
Based on previous experience with shootings at this location, he knew that
the shot had been fired from the top of a certain group of tall (twenty-storey)
buildings in Grbavica.492
- Mirsad Kucanin, a criminal investigator from Sarajevo, indicated on a map
the location of four fifteen-storey buildings on Lenjinova Street, in the
vicinity of the left bank of the Miljacka River, from where there was constant
sniper fire.493 He also
located the Grbavica shopping centre, a group of three twenty-storey buildings
which he knew from personal experience were frequently used as firing positions
to target civilians in the centre of the town and along Titova Street.494
He recalled having worked on three incidents involving sniping attacks carried
out from the Grbavica shopping centre against trams.495
Akif Mukanovic, a resident of Hranso, confirmed that sniping attacks were
carried out from that location.496
- Witness AJ testified that on 7 November 1992, in the afternoon, she was
walking home from a neighbour’s house.497
She was dressed in civilian clothes.498
As she passed between two buildings499
near Darovalaca Krvi Street she heard a shot from the direction of Grbavica.500
A bullet struck her in the hip.501
She was taken to a first-aid station and later hospitalized.502
Witness AJ testified that there were no soldiers503
or weapons504 in the
vicinity of the incident.505
According to the witness the gunfire originated in Grbavica.506
She had been clearly visible from the Grbavica shopping centre buildings as
well as from other high-rise buildings in that neighbourhood.507
It was common knowledge, according to Witness AJ, that SRK snipers operated
from there.508 Many people
from her street had been killed or wounded by shots fired from those positions.509
- The Trial Chamber heard evidence about different SRK sniping positions
located in high-rise buildings located on the southern side of the Miljacka
River.
- From June 1992 until the beginning of May 1993, Witness D, an SRK soldier,510
was stationed at the entrance of four 15-storey buildings near Lenjinova Street
in the vicinity of the Miljacka River.511
Using a map he indicated in court the positions where he and his platoon was
deployed.512 He recalled
that during his shifts soldiers from other units assigned to sniper duty would
join his platoon at the tall buildings.513
The snipers would occupy the upper floors.514
“There were there every day.”515
He often heard the sound of gunfire coming from those floors.516
He had the opportunity to speak to the snipers.517
“They would usually say that they had hit someone.”518
Their equipment consisted of “very long-barrelled rifles” with telescopic
sights, “some kind of binoculars with a rubber eyepiece on it.”519
“They had a separate telescope which was not mounted on the rifle. It was
much broader, much wider, than the one on a rifle, and they were able to see
the target better using this device.”520
They also had infrared sights.521
- Witness D said that ABiH snipers fired at his platoon’s positions in Grbavica
522 but “there was no
fighting except this sniper fire”.523
According to the witness, his platoon received orders from the platoon commander,
and from the company commander, to fire at anything that moved and that could
jeopardize their positions.524
They were never instructed not to fire at civilians.525
On the other hand, however, several Defence witnesses who had been stationed
in the area of Grbavica and the Jewish Cemetery during the conflict indicated
that they were not given orders to target civilians.526
- Van Lynden recounted that in late September 1992 the Bosnian Serb Presidency
permitted him to visit apartment blocks in Grbavica527
close to the Miljacka River,528
where he observed front-line sniping positions.529
He was taken to rooms in several buildings where there were different kinds
of gun emplacements, including dark rooms “where there were sniper rifles”
alongside sandbags behind window slits. He described the rifles as being long-barrelled
and as having telescopic sights. Van Lynden knew from previous experience
that the weapons he saw in those rooms were sniper rifles.530
On the floor he saw used cartridge cases. The soldiers were dressed in the
uniform of the Yugoslav army.531
“They had walkie-talkies, small radios, and there were clearly other positions
higher up or in other buildings, higher up the slope overlooking Sarajevo,
who were in contact with these men on the front line positions, spotters.”
He added: “It was clear that this was co-ordinated. It’s not just a man looking
through one slit and deciding to do something if he sees something. There
were others. It was a co-ordinated effort ”.532
- Hvaal said that in late 1993 or early 1994 he visited four high-rise buildings
in Grbavica.533 There
he saw “a fairly basic sniper position, not a very sophisticated one, heavily
sandbagged.”534 Once
inside, the only view out was through the window slit used by the sniper.535
He saw various types of weapon in those buildings, including an M-84, a general
purpose machine gun locally known as a “death sower”.536
- At various times after June 1993, Ashton was taken by members of the SRK
to front-line positions in apartment buildings in Grbavica.537
There he saw heavily sandbagged rooms from where snipers operated.538
Through the window slits he could see the area of Marin Dvor across the river,
including the Holiday Inn and Tito barracks: “It was very easy to see where
people could get shot crossing the intersections”.539
He indicated that there were “thousands and thousands of shell casings in
the rooms. There was a lot of outgoing fire from that position.”540
- The Prosecution also alleges that the Jewish Cemetery was one of the prominent
sources of sniper fire against civilians.541
The Jewish Cemetery of Sarajevo was located on the western slopes of Mount
Trebevic. The evidence in the Trial Record indicates that both belligerent
parties held positions in this area. Maps marked by Defence witnesses show
that the confrontation lines were separated by the width of the cemetery.
The SRK was positioned on the south-western side of the cemetery, while the
ABiH was stationed along the north -eastern wall.542
These confrontation lines remained unchanged throughout the conflict.543
The area of the Jewish Cemetery was described by Defence witnesses as a particularly
sensitive part of the frontline, where there was frequent exchange of fire
between the warring parties.544
- The cemetery had a chapel located within its wall on the lower, northern
end.545 The Trial Chamber
heard conflicting evidence given by Defence witnesses regarding the party
in control of the chapel. Both DP16, a soldier in the 3rd battalion of the
SRK stationed in the area of the Jewish Cemetery,546
and DP11, another member of the same battalion,547
said that the chapel was under ABiH control.548
Izo Golic, an SRK soldier with the 1st Romanjia Brigade, said that no one
held the chapel, “(i(t was closer to our positions”.549
Victor Vorobev, a Russian UNPROFOR representative stationed in this area on
the SRK side, testified that the cemetery was not controlled by either party.550
The Trial Chamber did not hear specific evidence to the effect that civilians
were targeted from the chapel of the Jewish Cemetery.551
- The Trial Chamber heard testimonies to the effect that snipers operated
in the area of the Jewish cemetery of Sarajevo. General Michael Rose, the
UNPROFOR commander for Bosnia-Herzegovina from January 1994 to January 1995,
said that during his tenure in Sarajevo the Jewish cemetery always remained
a dangerous source of fire.552
Kucanin indicated that fire was opened from the Jewish cemetery against civilians
on the centre of Sarajevo.553
Van Lynden visited an SRK position near the Jewish cemetery, where there had
been civilian houses prior to the war. Their positions were protected by tree
trunks.554 They employed
a system of mirrors which allowed them to remain under cover.555
- Lastly, as concerns non-scheduled incidents of sniping and shelling, international
observers and senior hospital staff testified that the State Hospital, located
in Marin Dvor,556 was
regularly fired upon during the Indictment period from SRK-controlled territory
resulting in injuries to patients and staff and significantly damaging the
hospital infrastructure. Ashton, who lived at the State Hospital from the
end of 1992 until the beginning of 1993, testified to this fact.557
According to the witness, every day during that period began with the shelling
of the hospital from Mount Trebevic. Anti-aircraft weapons were also used
in these attacks.558
Ashton recalled one particularly intense shelling incident on 23 September
1992 which seriously damaged three parts of the hospital.559
On that occasion, from the fourth floor of the main hospital building, he
saw in the direction of Pale the firing of heavy-weapons from SRK-controlled
territory.560 He also
observed shells being fired on the hospital from SRK-controlled positions
above the Jewish cemetery in Grbavica.561
In October 1992 he saw a tank fire three times at the hospital from SRK-controlled
territory on the road leading to Pale.562
Attacks from Grbavica against the hospital were launched also in October 1992,
December 1992, and January 1993.563
Another witness, Van Lynden, recalled being at the hospital towards the end
of 1992 when a large explosion, which he attributed to tank fire, rocked the
facility and damaged an elevator shaft.564
Sometime in March 1993, Ashton witnessed a member of the medical staff being
injured by shrapnel in the arm and leg while bringing patients in through
the front of the hospital.565
- Milan Mandilovic, surgeon at the State Hospital, testified that throughout
the Indictment period, infantry fire caused great damage to the hospital.566
“The entire south facade, the east one as well, and partially the west, it
was all bullet riddled from small arms.”567
According to the witness the fire “came from the slopes of the Trebevic mountain,
the Jewish Cemetery, and the Vrace part of Grbavica settlement. [...] Those
are the zones that would correspond to the south easterly, southern, and south
western side.”568 Patients
and hospital staff were wounded whilst in the hospital by sniper fire from
those areas.569 He said
that all twelve floors were damaged to some extent as result of shelling.570
The south side of the building, directly visible from SRK positions, was most
severely shelled.571
Patients had to be moved to the north wing and to lower floors to be protected
from the attacks.572
Bakir Nakas, the administrator of the State Hospital since May 1992,573
testified that the southern facade of the hospital, which faced the SRK-held
territories of Vrace and Trebevic,574
was most exposed to fire, “almost 85 to 90 percent of hits were on that side”.575
Nakas recalled that, in October 1992, a large bullet from an anti-aircraft
gun injured his secretary in her office.576
In August 1993 a bullet struck his office.577
According to the witness, these attacks originated in the areas of Vrace and
Mount Trebevic.578 Carl
Harding, a UNMO in Sarajevo from July 1992 until January 1993, inspected the
State Hospital on 31 December 1992579
and found that all three hospital buildings had been damaged from shelling.
A 155 mm shell had damaged the ground floor of the casualty reception building,
while other fire had destroyed parts of the upper floors of the main building.580
The third building of the hospital, the annex, also bore the scars of artillery
attacks.581 By January
1993, shelling had reduced the bed capacity of the hospital to 200 from its
pre-conflict level of 480 beds.582
- The Prosecution tendered detailed evidence concerning two alleged examples
of deliberate sniping of civilians from these areas which are identified in
Schedule 1 of the Indictment under numbers 5 and 24.
(i) Scheduled Sniping Incident 5583
- Milada Halili and her husband Sabri Halili testified that on the morning
of 27 June 1993, at around noon, they were walking with Almasa Konjhodzic,
Milada’s mother, to the PTT building.584
They were commemorating the death by sniper fire of a relative.585
As was common at the time, they had taken a long circuitous road to avoid
areas targeted by snipers.586
As they approached the traffic lights at the intersection of Kranjcevica Street,
in the vicinity of the Marshal Tito Barracks, they heard the sound of gunfire.587
Milada Halili, who was a bit ahead, ran across the intersection behind a barrier
of containers which had been set up to protect against shooting from Grbavica.588
Frightened by the shot, Almasa Konjhodzic lost her balance and fell.589
Sabri Halili helped her to her feet and they continued.590
They had walked ten metres when Almasa Konjhodzic was struck by a bullet.591
Sabri Halili turned to see a pool of blood beneath his mother-in-law.592
The victim was taken to hospital where she died from the wound.593
- The Trial Chamber accepts the description of the incident as recounted
by the witnesses and is satisfied that the victim was a civilian. The victim
were wearing civilian clothes.594
Although Sabri Halili was a member of the ABiH, he was off-duty that day and
was not dressed in uniform or carrying weapons.595
- The Defence submits that the victim was hit by a stray bullet which ricocheted
during an exchange of fire and that she was not deliberately targeted.596
In the Defence’s view, it is also possible that the bullet was fired from
ABiH positions and then ricocheted, striking the victim.597
- The following expresses the view of a majority of judges (“the Majority”).
Judge Nieto-Navia dissents and expresses his view in the appended dissenting
and separate opinion.
- The account of the incident shows that the victim and her family were near
the traffic lights of the intersection, and had not yet reached the protection
of the containers, when the first shot was fired. The second shot, which killed
the victim, was fired as they crossed the intersection behind the barrier
of containers. The testimony of the witnesses shows that there were no soldiers
or other military targets in the vicinity of the incident.598
Milada Halili testified that there were people waiting for a bus opposite
Marshal Tito Barracks.599
Sabri Halili said that there was no ongoing combat that day because a cease-fire
had been concluded.600
An UNPROFOR document from 13 June 1993 confirms that a cease-fire was in place,
but reports the situation as being “relatively tense due to SA [small-arms]
fire and RT [artillery] shelling in the vicinity of Tito Barracks”.601
The Majority finds that the UNPROFOR report does not contradict the testimonies
of the witnesses, for it does not provide sufficient information on the situation
at the Kranjcevica Street intersection at the time of the incident. It also
does not indicate in any way that this shooting incident was among the small-arms
fire described; the witness did not speak about an exchange of fire but about
the sound of a first and then second shot that hit the victim. Since the exact
trajectory of the bullet which struck the victim is unclear from the evidence,602
the Majority cannot exclude that the victim was hit by a bullet that ricocheted.
Nevertheless, the Majority understands the evidence to show beyond reasonable
doubt that no military activity which could have accounted for the shooting
was underway at the time of the incident in the vicinity of Marshal Tito Barracks
and that the victim and her family were being targeted deliberately.
- The Defence argues that the victim could not be seen from SRK positions
in Grbavica.603 Milada
Halili testified that, although she did not see from where the bullet that
hit her mother was fired, she heard the sound of gunfire coming from the direction
of Grbavica.604 Sabri
Halili said that the bullet which struck his mother-in-law came from the left
of the direction in which they were walking, that is, from behind the containers.605
Both witnesses claimed that a tall white building in Grbavica, on the SRK
side of the confrontation line, about 10 to 15 meters from the Miljacka River,
was the source of fire.606
Jonathan Hinchliffe, a witness who testified about distances in relation to
scheduled sniping incidents, determined the distance between the building
indicated by the witnesses and the intersection to have been 665 metres.607
While the evidence is insufficient to conclude beyond reasonable doubt that
the two shots were fired from the building indicated by the two witnesses,
the visual evidence shows that there was an unobstructed line of sight from
Grbavica to the intersection where the victim was shot.608
The fact that containers had been placed at the intersection to give protection
from gunfire coming from Grbavica proves that that intersection was a dangerous
one and had been targeted before. Based on these considerations, and on the
testimony of the two witnesses as a whole, the only reasonable conclusion
to be drawn from the evidence is, in the Majority’s opinion, that the bullet
which killed Almasa Konjhodzic was fired from Grbavica. The evidence demonstrates
Grbavica was under SRK control at the time of the incident.
- The Majority therefore finds that Almasa Konjhodzic, a civilian, was deliberately
targeted and killed by a shot fired from SRK-controlled territory in Grbavica.
(ii) Scheduled sniping incident number 24609
- Mensur Jusic testified that on 19 June 1994, at approximately 5 p.m., he
was on a tram heading down Vojvode Putnika Street in the direction of Ilidza.
610 Witness M was on
the same tram with her son aged four years. She was six months pregnant.611
It was a sunny day.612
As the tram approached the intersection of Vojvode Putnika and Trscanska Streets,
slightly past Marin Dvor,613
Witness M heard a shot and saw that her son who was in a window seat had been
injured.614 A man who
had been standing by the tram’s door and a young woman had also been injured.615
Jusic also recalled hearing a shot. He saw a woman with a little boy covered
in blood. He then realized that he too had been hit in the shin of his right
leg, and noticed that another woman, standing to his right, was bleeding from
her arm.616 The two witnesses
testified that the tram continued, missing two stops, until it reached a safe
place at Pofalici.617
No further shots were fired.618
The injured received medical assistance at a nearby emergency clinic.619
- The Trial Chamber accepts that the incident occurred as recounted by the
witnesses. In particular, it is convinced that the tram was struck by a bullet,
which injured three passengers, as it travelled down Vojvode Putnika Street
towards Ilidza. It is further satisfied that the passengers in the tram were
civilians. Moreover, the tram was visibly a civilian vehicle, which functioned
during cease-fires, along a set route, and it could not have been confused
for a military objective.
- The Defence submitted that neither the tram nor its passengers were deliberately
targeted.620 It argued
that there was daily combat activity in the area, so the tram could have been
hit by a stray bullet or by a bullet that ricocheted.621
The testimony of the witnesses indicated that public transport was operational
that day because a cease-fire was in force.622
Witness M testified that the morning had been calm and that there had been
no incidents.623 The
tram was not crowded at the time of the shooting and was not transporting
any soldiers or any kind of military equipment.624
No military vehicles were present in the close vicinity of the location of
the incident.625 The
evidence does not suggest that any military activity was underway in the area.
The Trial Chamber finds that the only reasonable inference to be drawn from
the evidence is that the tram and its passengers were deliberately targeted.
- The Defence further submitted that the evidence is insufficient as to whether
the bullet originated in SRK territory.626
It argued that both warring parties had positions in the area of the Jewish
cemetery, so that the bullet was possibly fired from ABiH positions in this
area.627 Bogdan Vidovic,
a police officer who carried out a forensic investigation of the incident,
testified that the bullet struck the left-hand side of the tram in the direction
it was travelling.628
He said that the police could not establish the exact source of fire, since
the tram had not stopped at the site of the shooting.629
The forensic investigation established only the general direction of fire
and concluded that the shot originated in the areas of Grbavica or Vrace,
which were SRK-controlled territory.630
Based on the bullet impact point on the left side of the tram, Jusic said
that the shot was fired from SRK positions in the hills, in the direction
of the Jewish cemetery or the slopes of Mount Trebevic, areas under SRK control.631
Witness M also believed that the shot was fired from SRK positions in the
hills in the direction of Mount Trebevic, where the Jewish cemetery was located.632
The Trial Chamber notes that the Prosecution does not allege a specific source
of fire for this incident, but claims that the different areas indicated by
the witnesses were all under SRK control.633
It establishes, on the basis of the evidence and of maps available to the
Trial Chamber, that the distance between the site where the incident occurred
and the boundaries of the Jewish Cemetery was approximately 500 metres.634
Witnesses DP11 and DP16 indicated that the site of the shooting was not visible
from SRK positions at the Jewish cemetery.635
The Defence, on the other hand, indicated that the site of the incident was
visible from both sides of the confrontation line.636
A panoramic view from the intersection where the tram was shot and photographs
of this intersection show that there was an unobstructed view of the intersection
from the areas of the Jewish cemetery and Mount Trebevic.637
Considering the location of the tram when it was hit and that it was impacted
on the left-hand side in the direction it was travelling, the fact that there
was an unobstructed line of sight between the site of the event and the area
of the Jewish Cemetery under the SRK control, the approximate distance between
these two areas, lead the Trial Chamber to find that the only reasonable conclusion
is that the shot which struck the tram was fired from this area held by the
SRK.
- The Trial Chamber finds that a civilian vehicle was deliberately targeted
from SRK-controlled territory in the area of the Jewish Cemetery, resulting
in the wounding of three civilian passengers.
(b) Hrasno Area
- The Prosecution alleges that the neighbourhood of Hrasno was exposed to
fire from the upper reaches of Hrasno Brdo (Hrasno Hill) in the area of Ozrenska
Street.638 The neighbourhood
of Hrasno was a residential area located in the south-western part of Sarajevo,
adjacent to Grbavica.
- Testimonies heard by the Trial Chamber indicate that civilians in the neighbourhood
of Hrasno were exposed to shooting from several SRK positions. Witnesses described
the area of Hrasno Brdo in the vicinity of Ozrenska Street as a regular source
of gunfire. Nafa Taric, a victim of a sniping incident, testified that snipers
targeted civilians from SRK positions there.639
Akif Mukanovic, a resident of Hranso, said that gunfire against civilians
frequently originated from those positions after dark.640
Witness J testified that “during the entire war, there were well-known sniper
spots ” at Ozrenska Street.641
- Evidence shows that the neighbourhood of Hrasno was under ABiH control,
including the lower parts of Hrasno Brdo or Hrasno Hill. The witnesses indicated
that the SRK also had positions on Hrasno Brdo, in the area of Ozrenska Street,
which ran along the top of the hill. Witness DP10, who had been a soldier
in the SRK’s stationed in the area of Grbavica,642
said that the SRK had positions on Hrasno Brdo which went up to the junction
of Ozrenska and Moravska Street.643
Witness D also testified that the SRK was stationed in the higher parts of
Hrasno Brdo, but said that the confrontation lines ran further west of this
junction along Ozrenska Street. Between June 1992 and February 1993644
Witness D was stationed at various times at front-line positions at the intersection
of Ozrenska Street and Milinkladska Street on Hrasno Brdo.645
Although he could not see the ABiH front-line positions from his location,
they were about 50 metres down the hill.646
The witness drew a dotted line on a map to indicate the front line along Ozrenska
Street.647 Two residents
of Hrasno and two criminal investigators confirmed that higher parts of the
hill, including the area of Ozrenska Street, were under SRK control, while
lower parts were ABiH territory.648
The Trial Chamber is satisfied from the evidence that the SRK controlled upper
parts of Hrasno Brdo, including the area of Ozrenska Street and the ABiH held
the lower parts of the hill.
- Witness D, an SRK soldier, testified that from the positions of his unit
on Ozrenska Street he was able to observe members of an SRK sniping unit operating
from a two-storey house situated some 15 metres further up from where he was.649
The snipers would frequently change their positions and move from one house
to another.650 Their
equipment was similar to that which he saw in the tall buildings in Grbavica.651
They had long-barrelled rifles with telescopic sights, binoculars, and “something
like a telescope” with high magnification.652
They also had infrared sights653
and a special kind of machine-gun with fitted optical sights.654
Witness D could see their weaponry protruding from the house. Very often he
would hear the sound of firearms coming from there.655
On occasion he discussed with the snipers the nature of their targets. “They
targeted civilians and soldiers alike.656
[…] The shooting was usually at the intersections and the transversals, as
they were called, which were built horizontally around town and could be seen
very well from those positions.” These ‘transversals’ were described as “broad
roads down the width of the city, not longitudinally, and they form intersections
with the vertical roads.”657
Using binoculars he was able to see the containers that had been installed
at these crossings for protection, as well as the people walking on the far
side of the containers.658
“Sometimes people weren’t as safety-conscious and would cross at points where
there were no containers.”659
The snipers confirmed to the witness that they were targeting persons at intersections
where the barriers had been set up.660
- Van Lynden visited an SRK position in the higher area of Hrasno Hill.661
The gun emplacement he saw there had been dug in the garden outside a house.662
The soldiers had a machine gun, and “While one man manned the machine-gun,
the other looked down with binoculars.”663
While the witness was there, one soldier opened fire. “When we asked what
he had shot at, his answer was the ’Mujahedin’ by which he meant his opponents,
the Bosnian Muslims”.664
- Civilians in Hrasno were targeted also from the area of Grbavica. In April
1993, Ashton was on board a bus in the Hrasno neighbourhood when the bus was
fired upon.665 From the
orientation of the bus and of the bullet marks, Ashton concluded that the
gunfire originated from the area above the sports stadium in Grbavica.666
Witness I said that sniping from the shopping centre in Grbavica upon civilians
in the area of Hrasno was common.667
Habib Trto also testified that gunfire was frequently directed from Grbavica
against the intersection at the Dolac Malta bridge.668
Milada Halili, a resident of Hrasno, confirmed that civilians were targeted
at this intersection.669
This situation prompted Almasa Konjhodzic, Milada Halili’s mother, to move
from the witness’s house to the PTT building, where she was employed, in order
to avoid crossing the Dolac Malta bridge every day.670
Several other persons had also moved there for this reason.671
Milada Halili testified that her apartment faced the Grbavica shopping centre
and had been shot at from there.672
- Alija Mulaomerovic, the director of the Institute for Emergency Medical
Services, which was located at 14 Darovalaca Krvi Street, currently called
Kolodvorska Street,673
recounted that the Institute was shot at on numerous occasions from SRK territory.
The staff believed that the shooting originated in Ozrenska Street on Hrasno
Brdo,674 as well as from
the former police school in Vrace.675
Mulaomerovic testified that the Institute was repeatedly shelled during the
conflict and suffered serious damage.676
He could not, however, specify the source of fire: “it came from all directions”.677
The Institute’s staff was under constant threat from the gunfire and shelling
the Institute was subject to.678
- The Prosecution tendered detailed evidence concerning four alleged examples
of deliberate sniping of civilians in the general area of Hrasno which are
identified in Schedule 1 of the Indictment under numbers 10, 15, 20 and 27.
(i) Scheduled Sniping Incident 10679
- Nafa Taric testified that on 3 September 1993, at approximately 5 p.m.,
she and her eight-year-old daughter, Elma Taric, went out to get school books.680
Nafa Taric recalled it was a sunny and peaceful day.681
They walked from their apartment in Hrasno through the neighbourhood and down
Ivana Krndelja Street.682
They crossed the street holding hands683
behind a line of containers which had been installed to provide protection
against SRK snipers operating, according to the witness, from the area of
Ozrenska Street on Hrasno Hill.684
As the two emerged from the cover of the containers, they were shot.685
A single bullet hit Nafa Taric’s left thigh, then grazed her daughter’s hand
and penetrated her stomach.686
They fell to the ground.687
Nafa Taric said that another bullet “whizzed past our bodies as we lay there”.688
People who witnessed the incident689
did not dare approach them. 690
They managed to crawl away from the exposed position691
and were taken to hospital.692
The Trial Chamber is satisfied that the incident occurred as recounted by
the witness.
- The Trial Chamber has no doubt that Nafa Taric and Elma Taric, who was
8 years old at the time, were civilians.
- The Defence submits that the victims were not deliberately targeted.693
Nafa Taric testified that there was no on-going military activity at the time
of the incident.694 She
said that there were neither soldiers, uniformed personnel nor any military
equipment present in the immediate vicinity.695
According to the witness, the closest ABiH military command post was located
approximately 500 to 800 metres from the Hrasno neighbourhood.696
The fact that the two victims were shot at as they emerged from behind the
containers, and that a second shot was fired at them as they lay wounded,
reveals that they were deliberately targeted and not wounded by accident.
- The Defence argues that the medical documentation tendered into the Trial
Record does not explain “the angle of injury channel [sic] of the witness
and her daughter”, making it impossible to establish the exact direction and
source of fire.697 It
further claims that Nafa Taric and her daughter could not have been shot from
SRK positions on Ozrenska Street, since the location of the incident was not
visible from these positions.698
The Trial Chamber considers that the absence of more detailed medical documentation
or technical information on the point of entry of the bullet into the bodies
of the victims is not crucial for determining the source of fire. Witness
J, a police officer from the Novo Sarajevo Public Security Station who conducted
an on-site investigation of the event,699
concluded that the shot had been fired from the SRK positions on Ozrenska
Street.700 He based his
conclusion not only on the common knowledge that snipers operated in that
area,701 but also on
the fact that the police was unable to immediately access the site of the
incident because of on-going shooting from those positions.702
Nafa Taric recalled speaking to five people at the hospital where she was
taken who had been injured by sniper fire originating in the area of Ozrenska
Street within an hour of the incident in which she and her daughter were wounded.703
DP10 and DP16 testified that the site of the incident was not fully visible
from SRK positions in Ozrenska Street.704
However, visual evidence presented to the Trial Chamber demonstrates that
there was an unobstructed line of sight from SRK positions on Hrasno Brdo
to the location of the incident.705
Taking this into account, the only reasonable inference is that Nafa and Elma
Taric were injured by a shot fired from this area.
- The Trial Chamber is satisfied beyond reasonable doubt that Nafa and Elma
Taric, civilians, were deliberately targeted from an SRK-controlled position.
(ii) Scheduled Sniping Incident 15706
- Ramiz Velic, an employee of the Public Utilities Company in Sarajevo,707
testified that on 2 November 1993, at approximately 9.30 a.m., he was collecting
rubbish with a front-end loader on Brace Ribara Street, in a settlement known
as Trg Heroje (Heroes’ Square) in Hrasno.708
On this day he was being escorted by Egyptian forces in two UNPROFOR armored
personnel carriers marked “UN”.709
He was wearing black corduroy trousers and a leather driver’s jacket.710
The loader and the trucks onto which the rubbish was being loaded were yellow.711
- Velic was being assisted by local residents using hands and shovels to
load the rubbish.712
Blankets hung on a wire across the street as protection against sniper fire.713
As Velic reversed the loader he moved away from the blankets and the protection
of one of the buildings into an open area where the UNPROFOR vehicles were,
and was shot.714 Velic
did not hear the shot over the noise made by the loader. When he sensed the
bullet strike his left hand,715
he jumped out of the cabin and took cover behind a tyre.716
The shooting continued and he heard several bullets strike the left side of
the vehicle.717 His colleagues
later told him that they counted 64 bullet marks on the loader.718
After the shooting ceased, Velic was transported to hospital.719
The Trial Chamber is satisfied that the incident occurred as recounted by
Velic.
- The Defence submits that either the loader was legitimately targeted because
it was possibly being used for a military purpose,720
or that the victim was wounded by accident during an exchange of fire.721
Trial Chamber accepts Velic’s testimony that the loader was only used to load
rubbish and that he was the only one who drove it during 1993.722
The loader was shot at when Velic moved into open space.723
Even if the attacker had not been able to see the clothing and the activity
performed by Velic, the presence of the two UNPROFOR vehicles would have made
the attacker aware that Velic was performing civilian duties. The Trial Chamber
is not convinced by the Defence’s argument that Velic was accidentally hit.
After he stepped out of the cabin, the loader was struck by dozens of bullets.724
Velic saw no other vehicles at the site of the incident apart from the loader,
the yellow trucks and the UNPROFOR vehicles.725
There was no military presence or military equipment in the vicinity, according
to the witness.726 The
Trial Chamber concludes that Velic was deliberately targeted.
- The Defence further submitted that the Prosecution failed to establish
the source of fire.727
Velic testified that, at the time he was hit, his left hand “was turned towards
Vrace”.728 The source
of gunfire, according to the witness, was the MUP academy in Vrace,729
under SRK control.730
Hinchliffe estimated the distance to the academy as 490 metres.731
Defence witnesses DP10 and DP16 gave inconsistent testimony concerning the
line of sight from the academy.732
Visual evidence presented to the Trial Chamber demonstrates that the location
of the incident was clearly visible from the SRK positions in Vrace.733
Considering the testimony of Velic, the position of the UNPROFOR APCs, and
the existence of an unobstructed line of sight between the site of the incident
and the area of Vrace, as well as the approximate distance between these two
areas, the only reasonable inference is that the bullets fired at the loader,
one of which hit the victim, originated, if not from the MUP academy, then
at least from the area of Vrace.
- The Trial Chamber is satisfied beyond reasonable doubt that Ramiz Velic,
a civilian, was deliberately targeted from SRK-controlled territory in Vrace.
(iii) Scheduled Sniping Incident 20734
- In January 1994, Akif Mukanovic lived with his wife and two teenage children
on the first floor of an apartment block on 27 Obala Jula in Hrasno.735
The apartment faced the direction of the confrontation lines, which were approximately
800 metres away.736 Bullets
had hit the apartment on numerous occasions.737
To minimize the risk of being seen at night from SRK territory on Hrasno Brdo,
the Mukanovic family would, in addition to blinds, use blankets to cover the
windows at night.738
- Mukanovic testified that on 11 January 1994, he arrived home from work
around 7p.m.739 It was
already dark outside.740
His wife, Hatema,741
his two children, and a neighbour were at the dining room table.742
His wife was sitting with her back to the window.743
Mukanovic noticed that the blinds had not been covered with blankets.744
Because there was no electricity, a candle was lit on the table.745
The witness recalled that “There wasn’t any shooting, there wasn’t any fighting,
or anything like that. There was just this bang, and we all jumped up. (...(
And my wife at that point just got up and said, ‘I’m finished’. She took a
step forward [...] went all pale and sunk to the floor”.746
According to Mukanovic, two bullets struck his apartment.747
One passed through the wooden frame of the left side of the window, looking
outward,748 and wounded
his wife in the right shoulder blade, cutting through her aorta and lodging
in her body.749 A second
bullet went through the left windowpane, across the dining-room and through
the wall into the outside hallway of the building.750
Hatema Mukanovic was taken to the hospital but she did not survive the injury.751
- The Trial Chamber is satisfied that the incident occurred as recounted
by the witness and that the victim and her family were civilians.
- The Defence submitted that the direction of fire cannot be ascertained
because the angles at which the bullets struck were not established by the
Prosecution.752 The Trial
Chamber does not consider that information necessary to determine the direction
or source of fire. Mukanovic testified that the shots came from the SRK positions
on Hrasno Brdo.753 He
indicated on a map and on photographs shown in court the location of those
positions, which could be seen from his apartment, as well as the confrontation
lines.754 He said that,
when there was shooting at night, “One could see because they would be using
tracing bullets. So you could see where the fire came from.”755
Witness J, a police officer at the Novo Sarajevo Public Security Station,
conducted an on-site investigation of the incident.756
He explained that the bullet that hit the victim had left entry-exit marks,
from which the police was able to determine the direction of fire.757
The forensic investigation concluded that the shots had come from SRK positions
on Hrasno Brdo.758 Hinchliffe
estimated the distance to be 760 metres.759
Visual evidence presented to the Trial Chamber shows that there was an unobstructed
line of sight between Hrasno Brdo and Mukanovic’s apartment.760
The Trial Chamber concludes from the above that the victim was killed by a
shot fired from territory on Hrasno Brdo under SRK control.
- The Defence further submits that the victim could not have been deliberately
targeted, since she was not visible from SRK positions on Hrasno Brdo.761
In the Defence’s view, the victim was probably hit by accident by a stray
bullet fired during ongoing combat. 762
- The following findings are that of the Majority of the Trial Chamber. A
separate opinion by Judge Nieto-Navia dissenting from the Majority’s findings
is attached to this Judgement.
- Mukanovic’s account establishes that two bullets were fired into his apartment.
One bullet hit the glass pane and the other went through the window frame
and struck the witness’s wife. Mukanovic testified that there had been no
military personnel or equipment in the building and no military activity in
the vicinity.763 He added
that the day had been “pretty quiet, one of the calmer days”. There had been
no shooting or shelling prior to the incident that evening.764
The Majority finds that the shots fired into Mukanovic’s apartment were not
stray bullets but were deliberately aimed at the window of the witness’s apartment.
There was a pattern of sniping of civilians in the area of Hrasno. Mukanovic
and his family were aware of this danger and would hang blankets on windows
to reduce the visibility of their apartment at night. However, on the evening
of the incident only torn cotton curtains were drawn across the windows. The
room they were sitting in was lit by a candle. There is evidence that the
SRK snipers operating from Hrasno Brdo used infrared sights to view their
targets after dark.765
However, the Prosecution has not established that such a device was used in
this case. Nevertheless, taking into account the fact that there were no soldiers
inside or in the proximity of the building and no combat activity was underway
at the time, the attacker should have known that, by deliberately targeting
a window (with a light) of an apartment in a residential block of flats, only
civilian casualties would result.
- The Majority of the Trial Chamber finds that, after dark on 11 January
1994, two shots were fired deliberately at a candle-lit window of a civilian
apartment block in Hrasno from SRK-controlled territory on Hrasno Brdo, killing
Hatema Mukanovic, a civilian, and that the attack was carried out from SRK-controlled
territory with the intention to kill or to seriously injure any civilian present
in the candle -lit room.
(iv) Scheduled Sniping Incident 27766
- Witness AG, a boy of 13, and Witness AH, his sister, testified that on
the afternoon of 22 July 1994 they ventured out with their mother to visit
a relative.767 It was
a clear day.768 They
stopped to look at a shoe-shop window on Miljenka Cvikovica Street.769
Witness AG got off his bicycle and stood nearby.770
He was at that moment shot in the lower part of this stomach.771
The bullet tore through the boy’s body and shattered the shop window.772
The family was given assistance by people who emerged from a nearby restaurant.773
Witness AG was taken to an emergency unit774
and then hospitalized for several days.775
- The Trial Chamber is satisfied that the incident occurred as recounted
by the witnesses and that Witness AG was a civilian.
- The Defence submitted that Witness AG was not deliberately targeted from
SRK positions but was wounded by a stray bullet from combat activity.776
The evidence shows, on the contrary, that there was no military activity in
the area at the time of the incident. Witness AH testified that there was
a cease-fire in place that day, and that she and her children had gone out
precisely because there was no fighting.777
Witnesses AG and AH said that no soldiers or military vehicles were in the
vicinity of the incident.778
No shooting was heard prior to the moment of the incident.779
Several children were playing nearby780
and the neighbourhood restaurant was open.781
The Trial Chamber therefore finds that the victim was not hit by a stray bullet
but was deliberately targeted.
- The Defence further submitted that there was no clear line of sight from
SRK positions to the location of the incident.782
Witnesses AG and AH did not claim to know where the shot originated from.783
The police investigation showed that, in fact, two shots had been fired in
quick succession, the second bullet striking the restaurant nearby.784
From an examination of the bullet marks in the restaurant,785
the police concluded that the shots were fired from the Przulje house on Zagorska
Street, on SRK-controlled territory on Hrasno Brdo.786
Given that the two bullets were fired in quick succession, the Trial Chamber
concludes that they were fired, if not from the same weapon, then from the
same location. Witness DP16 claimed that the site of the incident was not
visible from SRK positions,787
however the visual evidence presented to the Trial Chamber demonstrates that
a clear line of sight existed.788
- The Trial Chamber therefore finds that Witness AG, a civilian, was injured
by a shot deliberately fired at him from SRK-controlled territory on Hrasno
Brdo.
(c) Alipasino Polje Area
- Alipasino Polje is a residential neighbourhood in the west of Sarajevo.
It is bounded by Mojmilo hill and the neighbourhood of Dobrinja to the south,
and by the neighbourhood of Nedarici to the west and south-west.789
The whole of Alipasino Polje was on the ABiH side of the confrontation line,
which separated it from Nedarici.790
The line at this point extended from west to east and curved into ABiH-controlled
territory. The result was that Nedarici was bordered on three sides by territory
controlled by the ABiH; a west-running corridor connected this neighbourhood
with the more expansive SRK-controlled territory to the west.791
The Prosecution adduced evidence to prove that attacks on civilians in Alipasino
Polje were launched from the SRK-controlled territory of Nedarici, in particular
from a collection of buildings known as the “School for the Blind.” That evidence
was adduced in general and also in relation to specific scheduled sniping
and shelling incidents, which are detailed below.
(i) Nedjarici and the School for the Blind
- The Nedarici neighbourhood, where the SRK held a salient in the ABiH lines,
consisted mostly of low buildings of one to two storeys.792
The portion of Nedarici east of Ante Babica Street and south of Djure Jaksica
Street (now renamed Adija Mulebegovica), where there are higher buildings,
was controlled by the ABiH together with Alipasino Polje. In certain areas,
a street divided the two warring sides,793
but close to the Institute for the Blind, ABiH and SRK forces were only a
few meters apart.794
- Fighting in the area was intense from the first months of the conflict,
and soldiers from both sides constantly fired from and against the
area. Mustafa Kovac, the head of the Civil Defence in Sarajevo during the
war, and Commander Jacques Kolp, UNPROFOR Liaison Officer with the ABiH from
March 1993 to November 1994, confirmed that a barricade was placed to protect
civilians against sniping from the SRK-held part of Nedarici in Ante Babica
Street.795 Kolp also
stated that SRK snipers were known to fire from Nedarici against the tram
line behind the Oslobodjenie building.796
Mirsad Kucanin, a member of Sarajevo Police force, stated that the perpendicular
streets going towards Alipasino Polje (including Prvomajska Street), under
ABiH control and inhabited mainly by BiH Muslims, were regularly targeted
from Nedari ci.797 Kovac
testified that bullets of different calibres, grenades or anti-aircraft guns,
machine-guns, mortar grenades and shells and bullets from sniper weapons were
fired from the Nedarici area.798
Fuad Djiho, a resident in the area, explained that the entire facades of the
houses on Ante Babica Street were “pock-marked with shell pieces and grenades
of all calibres and (the SRK( fired at apartment blocks where people lived.”799
According to Ismet Hadzic,800
commander of the Dobrinja Brigade of the ABiH, the shelling of Dobrinja took
place from the Nedarici barracks, the area below the Institute of Theology,
near Kasindolska Cesta.801
- Some specific incidents of alleged sniping from SRK positions were described
by civilians during the course of the trial. Witness R, a woman hit while
going to draw water from a well, recalled that on a winter day in 1992, she
was facing Nedarici and, taking into account also the fact that the SRK “always
shot at us from that part of Nedzarici”, she claimed that the bullet came
from that area.802 Medina
Omerovic, a girl living in the area, recounted that a sniping incident occurred
in Spring 1994 on the northern part of Lukavicka Cesta, towards the confrontation
line in Aleja Branka Bujica Street,803
causing the death of a 10-year old boy, Dejan Stefanovic.804
She testified that she could hear gunfire coming from “Nedarici” on her way
to and from school, or on the road to her sister’s apartment.805
The witness believed that the fire came from the houses held by the SRK located
on the right-hand side behind her building.806
- During trial, a considerable amount of evidence was tendered with regard
to that group of buildings in Nedarici known as the “Institute for the Blind”,
allegedly a major source of fire in SRK-held territory against civilians of
the surrounding areas. Witnesses marked the confrontation line on a map in
court as going south along Lukavicka Cesta street from the intersection where
the Institute for the Blind is located.807
- Defence witnesses denied that shooting used to come from the Institute
for the Blind. In particular, witnesses DP4, a member of the SRK company stationed
in Nedarici, stated that he never saw rifles with telescopic sights there.808
Witness DP6 and witness DP8, both also SRK soldiers in Nedarici, stated that
the view from the Institute for the Blind to Ante Babica street was obstructed.809
Witness DP6 also remarked that, although the SRK occupied the first floor
of the Institute for the Blind, no fire could come from the upper two floors
of that building, since it was dangerous to go there.810
The Trial Chamber was however confronted with UNMO daily situation reports
pointing to the fact that the Institute for the Blind was indeed a source
of sniping against civilians. A Report of 11 July 1994 describes the wounding
of a 17-year old “Bosnian male” at the intersection of Ante Babica street
with Aleja Branca Bujica, with UNMOs suspecting that “sniping came from BP859578”
(the Institute for the Blind); the report also highlighted that it was “the
third casualty (all civilians) in the same spot in the last few days.”811
With reference to the previous day, an“UNMO BH Command” report dated 13 July
1994 stated that the commander of 1st Battalion of the SRK Ilidza Brigade
admitted that sniping did originate from Bravo PAPA 859578 (“House for the
Blind People”), and “promised that there would be no more sniping from that
place.”812
- Moreover, many residents of the neighbourhood, or the surrounding areas,
asserted that the Institute for the Blind was indeed a source of sniping against
civilians. Fajko Kadric, a member of the ABiH and of the Sarajevo Civilian
Defence, stated that there was always danger from the Institute for the Blind
and that his truck was hit a number of times on the same side at the intersection
between Ante Babi ca street and Djure Jaksica street (later renamed Adija Mulebegovica).813
Both Fajko Kadric and his son Faruk, almost 16 years old at the time, believed
that shooting on 4 October 1993 came from the Institute for the Blind.814
Marko Kapetanovic, a 60-year old resident of the area, and Fuad Djiho, a reserve
policeman living in Alipasino Polje, testified that shooting on 13 March 1994
on Ante Babica Street came from the Institute for the Blind.815
Djiho stated that “it was common knowledge that (the Institute for the Blind
and the Faculty of Theology were( one of the snipers’ strongholds.”816
Omerovic explained that, during the years of war, and based on what she heard,
she gained a sense that sniping fire came from the Institute for the Blind
and the surrounding area.817
- All these witnesses provided detailed evidence in relation to instances
during which they were shot or instances where they witnessed shooting at
civilians from SRK-controlled territory. The Prosecution specifically alleges
these incidents under number 13, 21, 23, and 25 in Schedule 1 of the Indictment
as representative of attacks on civilians from the SRK-held areas of Nedjarici.
(ii) Scheduled Sniping Incident 13818
- Fajko Kadric was a butcher in Vojnicko Polje.819
He owned a refrigerated truck,820
with the mark “Mesnica” (The Butcher’s) written in large letters on
the right -hand side,821
which he regularly used during the armed conflict mainly to transport water
or flour for the Civilian Defence.822
On the morning of Monday 4 October 1993, Fajko Kadric was carrying flour from
a bakery to the Civil Defence in Vojnicko Polje, now Saraj Polje, with his
truck.823 Although Fajko
Kadric also served in a small company of the 5th Motorized Brigade of the
ABiH,824 he explained
that, on the day of the incident, he was on duty, that is “civilian work.”825
Faruk Kadric insisted that his father did not use the truck for the army.826
Faruk Kadric was sitting in the second passenger seat to the right of Fajko
Kadric, who was driving827
when at about 11:15 am,828
they turned left into Ante Babica street and headed south; the truck was travelling
at a speed of about 20 to 30 km/h at the most, as it had a full load and was
going uphill.829
- Both witnesses asserted that nobody was around except for an UNPROFOR APC,
stationed to their right and about 100 meters down Ante Babica street, at
the intersection with Djure Jaksica street (later renamed Adija Mulebegovica
street).830 At the point
where Aleja Branca Bujica forks off and the 10-storey high building of the
student hostel (Studentski Dom) is located,831
an explosion was heard.832
Faruk Kadric was hit in the neck.833
Both father and son heard the sound of the shot coming from their right as
they passed the intersection834
and asserted that the bullet most probably came from the Institute for the
Blind.835
- Fajko Kadric continued to drive and stopped where the UNPROFOR APC was
stationed.836 UNPROFOR
soldiers helped them and transported Faruk to their dispensary.837
According to the doctors, the wound in the neck had been caused by a fragmentation
bullet;838 several metal
fragments are still visible on the X-rays of his neck and could not be removed
as an operation would risk leaving him paralysed.839
- All the buildings in front of the Institute for the Blind were destroyed
and had been levelled.840
Further, the student hostel was completely hollow and could be seen through.841
A small barricade had been placed at the intersection across Aleja Branca
Bujica.842 After reviewing
the evidence,843 Milan
Kunjadic, the Defence expert on ballistics, conceded that he did not know
the height of the barricade or the state of the buildings during the war and
recognised that he could not exclude the possibility that the truck could
be seen above the barricades and through the damaged buildings.844
He also acknowledged that a sniper might have been able to follow the truck
above the barricade and through the hollow buildings, and be ready to shoot
precisely when the cabin window emerged under the stipulated circumstances.845
- Although the Trial Chamber is convinced that Fajko Kadric was hit by a
bullet, it finds it difficult to reconstruct the event with due certainty,
in particular in respect of the position and the speed of the truck in relation
to either barricades, both close to and further from the intersection, and
to the nearby buildings, to conclude beyond reasonable doubt that the shot
was fired deliberately from SRK -held territory to hit Fajko Kadric on the
passenger seat of the truck.846
This incident can therefore not be accepted as exemplary of deliberate sniping
by the SRK at civilians.
(iii) Scheduled Sniping Incident 21847
- On 13 March 1994,848
Ivan Franji c, 63,849
and Augustin Vucic, 57,850
were wounded by one or more bullets on Ante Babica street. They were both
civilians 851 and Catholic
Croats living in the same neighbourhood.852
The evidence presented in respect of this shooting, as seen below, is inconsistent
to the extent that it created insurmountable difficulties for the Trial Chamber
to reconstruct the event in which Ivan Franjic and Augustin Vucic were hit
by one or more bullets.
- Marko Kapetanovic, a man allegedly walking with them on that day, testified
that he was not able to identify his own exact location or that of the victims
at the time of the incident. In particular, the position he indicated on site
while videotaped853 differed
from the one he pointed to on a photograph presented to him during trial854
and from the one he had marked on a map out of court.855
In another portion of his testimony, he explained that his two friends were
shot about 10 meters from the pedestrian crossing on the east side of Ante
Babica street in front of the student hostel.856
Although these three locations are all within 200 meters one from the other
and are all along Ante Babica street, the Trial Chamber is bound to take the
discrepancies into consideration.
- Fuad Djiho, a policeman present on the scene who later extended help to
the wounded men,857 testified
that he found these men at two different locations: Vucic at approximately
the same location as the one pointed to by Kapetanovic on the photograph,858
while Franjic was 70 or 80 meters south, along Ante Babica street.859
- Kapetanovic stated that a single bullet hit the two victims860
and grazed his own belt.861
He testified that he did not hear any specific noise made by the bullet and
could not assert with certainty whether one or two bullets were fired;862
nonetheless, he assumed that the injury to the two men was caused by one single
bullet,863 which had
entered the stomach of Vucic above the navel.864
Djiho, on the other hand, testified that he clearly heard two separate shots.865
- Both witnesses assumed that the shooting came from the Institute for the
Blind,866 but it is unclear
on which basis they made this assertion.867
Djiho stated that the bullet came from Nedarici, which he was facing when he
heard the shots.868 Kapetanovic
stated that, since they were moving towards Dobrinja, he believed that the
bullet came from their right;869
later in his testimony, he however seemed to indicate the low building (not
established to be under SRK control) in front of the student hostel as the
source of fire.870 Djiho
explained that the Institute for the Blind and the Institute of Theology dominated
Nedarici and that it was common knowledge that those two buildings were snipers’
strongholds.871 Both
witnesses also indicated that the destruction of some buildings left an open
view from the Institute for the Blind to the position of the victims.872
Djiho also declared that barricades were set up on Ante Babica street, across
Aleja Branka Bujica;873
by contrast, Kapetanovi c stated that he never saw barricades at that location.874
- With regard to the aftermath of the incident, Kapetanovic testified that
a man and a woman came to help the two injured men.875
Both Kapetanovic and Djiho indicated that they stopped a car to have Franjic
taken to the hospital.876
Shortly thereafter, they stopped another car, which transported Vucic to Kosevo
hospital.877 Franjic,
now deceased, had instead made a statement to the Prosecution that a policeman
had given him the first medical aid; he had not noticed Vucic or Kapetanovic
close by.878
- In view of the inconsistencies of the evidence, in particular in relation
to the exact location of the three men, the assumed source of fire, the time
of the incident and the course of events after the men were hit, this incident
cannot be accepted as exemplary of deliberate sniping by the SRK at civilians.
- The conclusions in the following incident express the views of the Majority
of the Trial Chamber. Judge Nieto-Navia expresses his view in the attached
separate and dissenting opinion.
(iv) Scheduled Sniping Incident 23879
- Fatima Salcin, a middle-aged woman who was living in Alipasino Polje in
1994, testified that around 13 June1994 a cease-fire was in place and she
and a relative of hers, Djemal Maljanovic, were returning from Dobrinja on
foot to Alipasino Polje.880
As Salcin described the incident, suddenly her hand “just went up in the air”.881
A bullet had struck the palm of her right hand and had come out the other
side.882 The sound of
shooting then rang out.883
The witness thought it was a machine-gun burst.884
It was the first shooting she had heard all day.885
Salcin was dressed in a blue skirt and a leather jacket.886
She could not recall the exact time of the incident, but thought it was sometime
in the evening, between 6 and 7.30 p.m.887
Although a light rain was falling, there was still some natural light.888
Maljanovic pulled Salcin down to the ground, where they remained until the
shooting was over. With Maljanovic’s help she was taken to a hospital in Dobrinja.889
A discharge report from Dobrinja General Hospital shows that Fatima Salcin
was admitted on 13 June 1994, with an “entry-and-exit wound to her right hand”,
and discharged fifteen days later.890
Djzemal Maljanovic gave a similar account of the incident. In June 1994 the
witness was 52 years old.891
He had joined the ABiH at the start of the war and was discharged in January
1993.892 He testified
that on 13 June 1994 he and Salcin were walking home dressed in civilian clothes
and unarmed.893 It was
late afternoon, it was overcast, and it was drizzling.894
But visibility, according to the witness, was good.895
They had turned off Lukavicka street and were walking up the slope of Ive
Andric a street when Salcin was shot.896
Maljanovic said that there had been some screening along Lukavicka street
providing protection against snipers, but once they had started ascending
Ive Andrica street they had become exposed.897
Once they had ascended above the level of the protective screens, Maljanovic
“turned around [and] saw that it was dangerous. At that very moment there
was a shot.”898 They
fell to the ground and “then there was a second shot, which couldn’t hit us.”899
They rolled down the hill to safety. At the hospital the witness heard that
two other people had been shot in the same area earlier in the day.900
- As to the existence of military targets in the vicinity of the incident,
Fatima Salcin said that other people had been out in the streets in the area
and as far as she could tell none of them were soldiers or in uniform.901
Nor did she notice any type of military equipment.902
Salcin was shown recent photographs of herself and Maljanovic standing approximately
at the spot of the incident.903
In the distance behind them can be seen a cluster of buildings which Salcin
identified as Nedarici. According to the witness the bullet which struck her
hand came from this “general direction”, for it was from this direction that
she had heard the sound of gunfire.904
Djzemal Maljanovic testified that at the time Salcin was shot there had been
no soldiers or persons in military uniforms or military equipment in the immediate
vicinity of the incident.905
He added that at the time of the incident there had been “machine-gun nests
[…] on the former barracks and […] on the Catholic monastery.”906
The barracks was the former JNA barracks located in Nedarici which during
the conflict had come under the control of the Bosnian Serbs.907
Maljanovic marked on a map the position on Ive Andrica street where he and
Salcin were when Salcin was shot, as well as the location of the nearest confrontation
line, the barracks, and the so-called monastery.908
The barracks, as marked by the witness, lay approximately 1,000 metres north
of the monastery. The place where Salcin was shot was about 1,400 metres southeast
of the barracks and 1,100 metres east of the monastery.909
Maljanovic remarked that “they targeted us from the back”.910
Asked how he knew that the source of fire was the barracks or the monastery
he answered that these were well known sniping nests and that more than 500
people had been killed along a stretch of road half a kilometre long, hence
the protective screens erected on Lukavicka street.911
- Defence Witness DP5 was a member of the Territorial Defence in Nedarici
and later an SRK officer located at the former JNA barracks in Nedarici.912
He testified that there was a cannon just east of where Salcin was shot which
was used to fire at Nedarici.913
The gun emplacement, said the witness, was alongside a road cut into the hill
and was concealed with camouflage netting, however its location could be seen
with binoculars from atop the former JNA barracks in Nedarici. The ABiH crew
operating it was stationed nearby.914
There was, according to DP5, exchange of fire between the two sides in this
general area every two or three days. The witness did not specify any time
period.915 He did not
say whether the cannon was in place and operational in June 1994. Witness
DP5 also testified that there was a water reservoir at a spot about 150 metres
south of the location of the sniping incident which had been a JNA position
before it was captured by the ABiH in the early months of the war.916
- In its final oral arguments the Prosecution did not claim that the shot
came from the barracks or from the monastery but “from the vicinity of the
cone that we see on the map [i.e. P3728 (incident 23], to the west of the
front-line positions ” (the cone’s apex is the spot of the incident and its
base is a north-south line about 200 metres long drawn against the eastern
edge of the monastery).917
The Prosecution referred to the Defence’s submission in its acquittal motion
that Salcin was the victim of a stray round, dismissing it as unsupported
by the evidence. In the Prosecution’s view, the fact that the shooting continued
is evidence that the two witnesses were specifically targeted. Without giving
reasons, the Defence excluded the barracks as the source of fire and argued
that when consideration is given to the fact that it was raining, that it
was between 6 and 7.30 in the evening, and that the distance between the monastery
and the site of the incident was considerable, Salcin and Maljanovic could
not have been seen and so could not have been deliberately targeted.918
The possibility cannot be excluded, according to the Defence, that Salcin
was shot accidentally.
- The issue for the Majority is whether Salcin and Maljanovic were deliberately
targeted by the SRK and, if so, whether they were targeted as civilians. The
evidence suggests that the bullet which struck Salcin in the hand came from
behind her. At the time Salcin and Maljanovic were at least 300 metres east
of the nearest confrontation line (which ran approximately north-south) and
they were facing east.919
The evidence does not assist the Majority to determine the exact source
of the gunfire. As for the direction, the only certainty is that the bullet
struck Salcin’s palm and lifted her arm up in front of her. This suggests
a westerly direction.
- The Majority is convinced that the shot was fired from within SRK-controlled
territory, by SRK personnel, to the west of the confrontation line, for there
is evidence920 that many
people were killed or wounded in this area by fire from across the confrontation
line and that protective screens had been erected in response to the attacks.
There is evidence that two other persons had been shot from across the confrontation
line earlier on 13 June 1994.921
There is no reason to believe that Salcin was shot by ABiH forces or by anyone
else located in the narrow and exposed strip of land between the confrontation
line and the position of the witnesses. Having inferred that the bullet (and
any follow-up shots) came from SRK territory, the Majority must now consider
whether Salcin and Maljanovic were deliberately targeted by the SRK. The two
witnesses had been walking for some time before the incident occurred. They
did not report that any military activity was underway in the area. Salcin
believed a ceasefire was in effect and observed that other civilians were
out and about at the time. Maljanovic was apprehensive about taking the shortcut
to Alipasino Polje up along Ive Andrica street, not out of concern of being
caught in any cross-fire but out of fear that if he and his companion rose
above the level of the protective screens on Lukavicka street they would be
exposed to SRK sniper fire, which was common in that area and had claimed
many victims. If the cannon referred to by Witness DP5 was indeed operational
at the relevant time, Salcin and Maljanovic could not have been reasonably
confused with the crew operating it. The Majority accepts that the two witnesses
had travelled the road between Alipasino Polje and Dobrinja before and were
aware of the dangers. Their assessment of the prevailing conditions at the
time of the incident must be given due weight. They did not walk into a fire
fight. The evidence suggests that the shooting ceased after Salcin and Maljanovic
rolled down the slope to safety. The Majority thus finds that the two witnesses
were deliberately targeted from SRK-controlled territory.
- Salcin and Maljanovic were civilians, were dressed as civilians, and presented
no conceivable military threat. The Trial Chamber, by majority of its members,
finds that they were deliberately targeted from the SRK-controlled area, if
not attacked as civilians, then in reckless disregard of their civilian status.
(v) Scheduled Sniping Incident 25922
- On 26 June 1994, a sunny early evening, between 19:00 and 19:30 hours,
Sanela Muratovic, 16, and Medina Omerovic, 17, were walking side by side from
the house of Omerovic’s sister to Omerovic’s apartment in Djure Jaksica Street
17 (on the eastern side of Lukavicka Cesta), in the neighbourhood of Vojnicko
Polje (Novi Grad).923
Muratovic, a civilian, was wearing a T-shirt, trousers and sneakers, while
Omerovi c was wearing shorts.924
As the two young women were about to cross the street towards Omerovic’s apartment
block, some soldiers in uniform warned them of incoming sniper fire; they
therefore started running.925
Muratovic was shot on the right-hand shoulder, from the front side.926
Both the witness and Muratovic went on and took shelter in a trench located
to their right;927 some
of the soldiers who had warned them came to their rescue.928
- The spot where Muratovic was wounded (her right shoulder) and the fact
that the witness, walking to the left of the victim, was not wounded, tend
to indicate that the bullet came from their front right.929
The witness marked a confrontation line on the map of the area, placing it
behind her apartment block, through the Institute for the Blind, an SRK position
on Aleja Branca Bujica.930
The Trial Chamber, taking into account the maps and photographs discussed
at trial as well as the testimony of Omerovic, which apart from minor inaccuracies,
was clear, direct, consistent and reliable, finds that a bullet coming from
the front on the right-hand side of the two girls could have been shot with
precision from the Institute for the Blind. Some defence witnesses confirmed
the presence of the SRK in the Institute for the Blind but testified that
the building could not have been a source of sniping fire.931
The Trial Chamber is not convinced by the testimony of these witnesses. UNMO
reports932 and other
witnesses had found that the Institute of the School for Blind was a “ sniping
nest” from where civilians were shot at.933
The Trial Chamber finds that the shot which hit the victim originated from
the area of the Institute for the Blind.
- The Defence submits that the victim was hit “by chance” during combat;934
this contention seems based on an acknowledgement by the Prosecution that,
in the area, there were daily clashes between the armies, ABiH soldiers were
positioned in high-rise buildings and that soldiers had warned the two girls
that they should not be going out because “there was firing”.935
The Trial Chamber notes that the warning was that “sniper fire had started
and to hurry up.”936
The fact that one single shot was fired and directly hit Muratovic, finally,
corroborates the finding that the incident was not caused by a “lost shot”
during ongoing combat. In order to exclude the possibility of a bullet hitting
Muratovic by mistake, or of a ricochet, the Trial Chamber takes into specific
account the submission by Omerovic that soldiers were not garrisoned in the
immediate vicinity of the spot where the incident occurred, and that the witness
was not aware of any military facility nearby;937
moreover, no fighting was ongoing in the area at the time of the incident.
The distance between the area of the Institute for the Blind and the position
of the victim at the time of the incident was about 200 meters.938
At that distance, the age, the activity and the way the girls were dressed
could not be ignored by the perpetrator. Their civilian status was thus obvious
for anyone located at such a short distance.
- The Trial Chamber finds that Sanela Mutarovic, a civilian, was deliberately
targeted from SRK-controlled territory.
(vi) Scheduled Sniping Incident 26939
- In 1994, Rasid Dzonko, a man aged 67 years, lived on the 7th floor of an
eight -storey apartment block at Senada Mandica Street, no. 5940
located in the area of Vojnicko Polje, a sub-part of Alipasino Polje. Dzonko
shared the apartment with one of his daughters, Mediha Golo, and her husband.941
On a July evening, at about 22:30 hours, Dzonko, his three daughters, his
son-in -law and two grandchildren gathered in the kitchen of the apartment
to watch a football game on TV.942
D‘onko and his family would usually avoid staying in the kitchen because it
faced the direction of the front line,943
and the balcony running along the kitchen had been damaged by shelling.944
Dzonko emphasised that the lights were off,945
the blinds of the kitchen window, which was covered with two blankets to block
the view, were pulled down,946
and the bottom half of the glass door leading into the balcony was ‘covered’
with wood planks.947
According to Dzonko, “you couldn’t see anything”.948
- At approximately 22:45 hours, Dzonko was seated in front of the television
set placed at one end of the kitchen, opposite the balcony door,949
when a bullet came through the kitchen door frame, ricocheted against the
brick wall close to Dzonko, hit him in the middle of the back to the left
side of his spine, exited through his stomach, then continued through a cupboard
door and into a chandelier.950
Dzonko was taken to Dobrinja hospital for first aid and then to Kosevo hospital,
where he stayed for 13 days.951
While in hospital, Dzonko was told by his son-in-law that members of a UN
military organisation came to his apartment to take photographs of the impact
points of the bullet which had hit him, and had removed the bullet.952
- The Prosecution submits that while the victim “was not visible to persons
outside the balcony because of the nature of coverings over the windows the
evidence that the television was on (at night) and facing the windows (in
the direction of the SRK-held territory) and the fact that there was only
one shot is persuasive evidence that it was intended and fired at the apartment
deliberately, with the intent of shooting whoever was inside”.953
- The Defence argues that Dzonko is not a credible witness,954
and that the circumstances in which the incident occurred exclude the possibility
of deliberate targeting.955
The Defence argues that the possibility of a direct shot is excluded because
there was no line of sight between the front line and the victim’s apartment
block and because the approximate distance between one of the suspected sources
of fire (the Faculty of Theology) and the victim’s apartment is 1,000 metres.
According to the Defence, for a bullet to “break through the wooden planks”,
go “through the witness’s body, hit the wall, the door and the cabinet, the
projectile must have been fired from a small distance”.956
- Although the testimony of Dzonko was disorderly, the main features of his
testimony are consistent and reliable. D‘onko testified that people in the
neighbourhood who heard about the incident assumed that the bullet which had
hit him had been fired from the area of the School of Theology, widely known
to be an SRK sniping nest.957
Dzonko had no doubt that that assumption was right “because it couldn’t have
come from anywhere else. That was the only possible place”.958
He explained this was because of the bullet trajectory.959
The bullet came through the balcony door, which faced the direction of the
Faculty of Theology as well as the front line.960
The distance between the Faculty of Theology, located in Nedjarici,961
and the spot where the victim was shot is approximately 1000 metres and the
distance between the SRK front line and the victim’s apartment block is approximately
250 metres.962 Dzonko
testified that his apartment block was on the side of the ABiH,963
and that although his apartment block was located behind two other apartment
blocks, there was an open space of about 10 metres between these two buildings,
thus there was a line of sight between his apartment and the front line.964
Dzonko pointed out on photographs tendered into evidence the location of the
confrontation line and the Faculty of Theology, “where the Serbs fired from,”965
and explained that from that location, the Serbs “could target everything”.966
In these photographs, a line of sight can be seen between Dzonko’s apartment
and the front line.967
Dzonko further testified that during the time he lived in his apartment close
to the front line, “there was shooting and shelling almost every day”.968
Dzonko pointed out on photographs of his apartment block impact points of
fire coming from the direction of the front line.969
He explained that the front entrance of his apartment block which faced the
front line could not be used in daytime during the conflict because residents
could be shot.970 Defence
witness DP8, an SRK soldier stationed in Nedjarici in 1993, was shown a picture
(P3279T) showing a line of sight between Nedjarici and Dzonko’s apartment
block, and he admitted that there was a line of sight from the Faculty of
Theology to the site of the incident.971
- D‘onko testified that there was "very little shooting" before he was shot
and that he did not hear any shooting after he was shot.972
He emphasised that there were no soldiers positioned in the building where
he lived at the time of the incident.973
He acknowledged that he sometimes saw unarmed Bosnian soldiers in groups of
two or three going to have breakfast or lunch “when there was a lull in the
fighting”,974 because
there was a kitchen for them in another apartment block about 100-150 metres
away from his.975 Some
of these ABiH soldiers wore uniforms,976
and they would move through connecting trenches,977
which could be seen from Mediha Golo’s bedroom.978
The Trial Chamber takes due consideration of the fact that the witness was
hit by a single ricocheting bullet fired through a door whose upper part was
made of glass, while watching television on the 7th floor of an apartment
building. Yet, the Trial Chamber cannot exclude the reasonable possibility
that the bullet, which hit Dzonko, was fired during an exchange of fire since
he testified that he heard “very little shooting” before he was shot. The
Trial Chamber is thus unable to find that beyond reasonable doubt the victim
was shot in a deliberate manner and cannot accept this incident as exemplary
of a campaign of fire at civilians.
(vii) Shelling incident in Alipasino Area
- The Trial Chamber heard evidence in relation to the shelling of the Alipasino
Polje area. A report of the UNPROFOR stated that two shells landed in the
area of Alipasino Polje one morning of 1993, killing 7 persons and wounding
54 others.979 Based on
the results of a crater analysis, UNPROFOR determined that the projectiles
were 120 mm mortar shells which had arrived from the southwest.980
UNPROFOR also indicated that possible sources of fire were located in the
areas of “Nedarici … [or] Butmir … [or] Igman,” but concluded that “It is
impossible to say with exactitude whether the shells are from the Bosnian
or Serbian side.”981
Mykhaylo Tsynchenko, an Ukranian officer who served with the UN in Sarajevo
from November 1993 to July 1994,982
remembered that on 11 January 1994 a “mortar mine detonated on a playground
[in Alipasino Polje] … and that there were children playing there, and there
were casualties among the children.”983
Referring to the same incident, a UNMO report confirmed that a location in
“west Sarajevo was hit by 7 x 120 mm mortars”984
that day and that UNMOs had established that one person had been killed and
four had been wounded.985
The authors of the report concluded that “it appears that the rounds came
from the S.W. … [and that] it seems very likely that the rounds came from
[SRK] weapons. However the evidence is not conclusive.”986
They added that “When questioned [the SRK] liaison officer strongly denied
[SRK] responsibility.”987
- Other accounts supported UN reports that shelling in Alipasino Polje harmed
civilians. John Ashton witnessed one shelling incident in December 1992,988
“at least an hour before dark,”989
which occurred “right outside the PTT [building where UN representatives were
stationed] in which three people were killed, two others were wounded carrying
wood that they had just cut.”990
He did not remember that there had been any soldiers among the victims.991
In the fall of 1993, local authorities of Sarajevo reported an incident where
a shell landed on a classroom in a residential area of Alipasino Polje; the
shell killed a teacher and three children aged between 6 and 9 as well as
injuring 21 other adults and children.992
According to the report drafted about the incident, “The tail section of the
shell was not found [on-site] because members of the [ABiH] had taken it away,
but according to eye-witness statements and the assessment of the crime technician,
it was a 120 mm shell fired from the direction of Nedarici.”993
Mirsad Kucanin remembered investigating an incident which also took place
in the fall of 1993 in Alipasino Polje involving a single 120 mm mortar shell.994
The shell had landed in a residential area, killing three civilians and wounding
18 others,995 but that
nearby there was “some kind of … a logistical base … where records of soldiers
are kept. There was some kind of outpost there belonging to a unit.”996
Refik Agnanovic, who lived in Alipasino Polje for part of the conflict,997
remembered that on an unspecified date before 22 January 1994, the explosion
of a shell killed a neighbour and his relative as they were unloading firewood.998
In view of the kind of impact of the shell left in the ground,999
he believed that the projectile had arrived from the west.1000
He added that the shells landed frequently in his neighbourhood.1001
- The Prosecution alleges the following specific shelling incident in Schedule
2 of the Indictment as representative of deliberate targeting of civilians
in Alipa sino Polje and adduced detailed evidence to prove that shells launched
from SRK- controlled territory targeted civilians in that area.
(viii) Scheduled Shelling Incident 31002
- The two streets which are the focus of this incident were joined in a shape
that is almost circular, as shown in Exhibit D1814, where the streets appear
under their new names: Geteova (formerly Cetinjska) Street forms the northern
half of the circle and Bosanska (formerly Klara Cetkin) Street the southern
half. Within this circular shape, which was crossed by two other streets,
were tall apartment blocks built along the edges of the four large plots of
land formed by the intersecting streets; the centre of each plot was open
parkland.1003 The distance
between the site of the third scheduled shelling incident and the confrontation
line to the west was about one kilometre.1004
A line drawn from the site of the incident running due west would cut through
the northern tip of Nedarici, emerge into the ABiH-controlled territory of
Stup, and after approximately 1,800 metres re-enter SRK territory south of
Azici.1005
- In January 1994 Goran Todorovic was 12 years old and lived at No. 6 Klara
Cetkin Street in Alipasino Polje.1006
On the 22nd of the month he was among a group of about ten children playing
in a parking lot in front of his apartment block when he heard an explosion.1007
He testified that because the sound resonated between the buildings he could
not tell where the sound of the explosion had come from; and that he later
learned that two shells had exploded at that point, not one.1008
He ran towards the buildings for cover and just as he started climbing the
staircase to his apartment another shell exploded, 10 to 15 metres away, wounding
him.1009 Muhamed Kapetanovic
was nearly ten years old in January 1994, when he was living at No. 2 Cetinjska
Street.1010 On 22 January
he was playing with four friends in a parking lot.1011
Another group of children was playing in Klara Cetkin Street.1012
Suddenly there was a loud explosion from one or two shells (the witness was
not sure), whereupon the children ran for cover.1013
Just before Kapetanovic reached his building’s entrance, another shell exploded
10 metres behind the trailing child, killing him and wounding three of the
others, including the witness, who suffered serious injuries to his leg.1014
Witness AI, who was 43 years old in 1994, testified that the morning of 22
January had been exceptionally peaceful, with no shooting.1015
A little after 11 a.m. he was walking along Klara Cetkin Street in Alipasino
Polje where he lived, when he heard two explosions at a distance of 100 metres
approximately.1016 Children
playing a few metres ahead of him in a parking lot outside apartment blocks
No. 2 and 4 ran to the buildings.1017
Before the witness himself could take cover, a third shell fell three to five
metres to his left, the explosion throwing him into the air and seriously
wounding him in the face.1018
Another witness, Refik Aganovic, was in his apartment on the 14th floor of
No. 4 Klara Cetkin Street.1019
Around 1 p.m. he heard the “usual” hissing sound of a shell and then a loud
explosion nearby.1020
About a minute or two later a second shell exploded.1021
The witness opened a west-facing window to see what had happened when a third
explosion in front of the entrance to his block threw him back.1022
He rushed downstairs to the entrance where he saw a 13-year-old boy stagger
over and die.1023 Another,
younger, boy whom Aganovic said he tried to assist also died in those moments.1024
Other children, whom the witness did not recognize because they were covered
in blood and were missing parts of their bodies, had also been killed.1025
- Witness Q was a police officer whose task was to conduct the opening stages
of criminal investigations through inspection and collection of evidence at
crime scenes.1026 The
witness testified that he attended the site of the Alipasino Polje incident
shortly after the explosions and found that two shells had hit the ground
within 50 metres of each other. He saw blood and traces of tissue in the vicinity.1027
He informed the Trial Chamber that he himself lived in Alipasino Polje at
the time, and that this was the first time the district had been shelled in
about 26 days.1028 The
report prepared by Witness Q, which is very brief, lists the names of six
children killed by the shells.1029
Zdenko Eterovic was a judge and investigative magistrate who, in the period
1992 -1996 had carried out, according to his testimony, between 300 and 400
investigations, including 100 to 150 investigations of shelling or sniping
attacks.1030 On 22 January
1994 he attended the site of the Alipasino Polje incident and prepared a report.1031
He was able to establish by interviewing witnesses and by observation of bodily
remains at the site, as well as by visiting the two hospitals to which the
casualties had been taken, that six children had been killed by the explosions
and another three children and one adult (Witness AI) had been seriously injured.1032
- As to the source of fire, Goran Todorovic testified that he did not recall
hearing the firing of the shells.1033
Muhamed Kapetanovic, who like Todorovic was outside playing, said he did not
know which direction the shells had come from and did not mention hearing
the firing of shells.1034
On the other hand, Witness AI testified that while he did not hear the first
two shells being fired, in the “eerie silence” that followed their explosion,
in something less than two minutes, he heard the hiss of the firing of the
third shell, which exploded less than ten seconds later.1035
The firing sound came from “behind my back, from the part where Nedarici is”.1036
Witness AI, a civilian,1037
claimed familiarity with the sound of shelling originating in Nedarici because,
as he put it, he lived in the immediate vicinity and was able to observe the
shelling on a daily basis.1038
Refik Aganovic said his neighbourhood was frequently shelled, and altogether
10 people (nine of them children) from his apartment block had been killed
in such attacks.1039
The witness suggested that the shells would generally come from the “west”.1040
Witness Q also said that, being a resident of Alipasino Polje, he was most
fearful of the Nedarici settlement, which was directly visible from where
he lived and which was under the control of the army of Republika Srpska.1041
From his apartment he would occasionally hear shells being fired from Nedarici
towards Alipasino Polje.1042
- Mirza Sabljica and another ballistics specialist prepared a report on the
incident.1043 The investigation
team found traces from the explosion of three mortar shells, two 82 mm and
one 120 mm, as well as the tail-fin from a 120 mm shell which had apparently
hit the top of a building.1044
Sabljica confirmed the conclusions of his report, namely that one shell had
impacted with the curb in front of No. 4 Klara Cetkin Street leaving a barely
visible primary crater with star-shaped elliptical traces most clearly visible
to the west of the crater – “slightly north in relation to true west”, according
to the report – and measuring 120 cm; that another shell had impacted with
the paved road in front of No. 3 Cetinjska Street leaving a 6 cm deep elliptical
primary crater (15 cm by 20 cm) from which concentric lines emerged to form
a larger ellipse with axes measuring 110 cm and 180 cm, the longer axis running
west-east, with the distance of the crater from the western edge of this ellipse
being the longest; and that a third shell (the 120 mm shell) had landed on
soft ground in a park between Klara Cetkin Street and Rade Koncar Square,
leaving a 40 cm deep crater, whose elliptical shape measured 80 cm and 110
cm, the longer axis oriented west-east with traces longer and more visible
towards the west.1045
A total of six people had been killed by the first two shells, according to
the report. Sabljica testified that on the basis of the “general pattern of
destruction marks”, which, as noted, were more pronounced and longer in the
westward direction, the investigation team concluded that two shells had landed
from the west and one from just north of west – the rationale of the report
being that the force of the explosion of a shell landing at an angle is downward-directed
and therefore more destructive above the patch of ground lying in the direction
of the shell’s approach.1046
Sabljica believed that all three shells originated in Nedarici, in the vicinity
of the Institute for the Blind.1047
The report prepared by Witness Q also indicates that the shells “struck from
the west (Nedarici)”. The witness testified that he had been able to determine
the direction from the traces he found at the site.1048
- The Trial Chamber now summarizes the evidence on the existence of military
activity and possible military targets in the vicinity of the incident. As
indicated above, Alipasino Polje was quiet on the morning of the incident.
Witness AI denied that there was a reserve police station in the area and
said he had not seen any soldiers in the neighbourhood that day.1049
Likewise, Refik Aganovic, who had been walking in the neighbourhood shortly
before the shells fell, testified that he had not noticed any kind of military
activity.1050 One or
two soldiers would be living in each apartment block, according to the witness,
but there were no groups of soldiers or barracks in the area.1051
Goran Todorovic testified that he had not seen any soldiers or military activity
in the vicinity of the playground.1052
He agreed, however, that the headquarters of a detachment known as Kulin Ban
were located about 500 metres from the point of the second explosion.1053
Muhamed Kapetanovic also testified that while there were no soldiers or military
activity in the vicinity of the incident, the staff of a detachment of local
troops known as Kulin Ban was stationed in the basement of a residential building
approximately 150 metres behind his apartment block, on the street then known
as Rade Koncar Square.1054
Uniformed men would go from the detachment’s headquarters to the front line,
and an armoured vehicle was often parked in front;1055
Kapetanovic last saw it four or five days prior to the incident.1056
Another witness, Mirsad Kucanin, a crime inspector, testified that the Kulin
Ban unit was on Rade Koncar Square, about 200 metres from the site of the
incident.1057 He described
it as an administration office, and as the unit’s personnel department, and
added that “mostly women” worked there and that no-one to his knowledge was
in uniform.1058 But
the witness also conceded that he did not have first-hand knowledge of Kulin
Ban.1059 Zdenko Eterovic
testified that his brother was a member of Kulin Ban, which he described as
a Croatian unit based in Marin Dvor. He denied that Kulin Ban, or any military
unit, was located in Alipasino Polje at the time of the incident.1060
Witness Q was shown a letter dated 24 June 1993, predating the incident by
seven months, apparently from the Command of the ABiH’s 102 Motorized Brigade,
ordering priority distribution of electricity to several of the brigade’s
“localities”, including the “Basis of Stela (Zavnobih Square 17)”.1061
The witness acknowledged that the cited address of “Stela”, which he recalled
as being a cafe, was between 50 and 100 metres from where the shells fell.1062
The witness also recalled that at the neighbouring Rade Koncar Square there
was “some sort of” police station, but he could not remember anything more
about it.1063 Witness
AI testified that he did not know of any establishment called “Stela”, nor
of a headquarters of the 102 Motorized Brigade, in Alipasino Polje.1064
Aganovic, Kapetanovic, Todorovic, and several other witnesses also testified
that they had no knowledge of a “Stela” in the area, or at all.1065
Witness Vahid Karavelic said he had some recollection of a cafe named “Stela”
but was not sure where it had been located; he said he did not think it had
been a command post.1066
- The Defence did not dispute the allegation that three mortars shells, two
82 mm and one 120 mm, exploded in two streets and in a neighbouring park,
as described above.1067
However, it argued that the place of origin of the shells has not been established;1068
that even if the shells in question originated in SRK-controlled territory,
evidence adduced from Muhamed Kapetanovic established that a military unit
had its headquarters a few dozen metres away from the site of the incident,
so that the resulting civilian casualties must be understood as collateral;1069
that the possibility of a mistake cannot be completely excluded;1070
that the possibility of a staged attack by the ABiH (for propaganda purposes,
presumably ) against territory under its control cannot be completely excluded;1071
and that a Prosecution “insider” witness, Witness AD, testified that he had
never received an order to fire at children or playgrounds – from which the
Defence claims it may be inferred that no other soldiers on the SRK side had
received such orders.1072
The Defence adopted the arguments presented in the Vilicic Shelling Report
in relation to the incident.
- The Prosecution submits that four mortar rounds (not three, as in
the Indictment) were fired into Alipasino Polje in the early afternoon of
22 January 1994, three of which hit the ground, killing six children and wounding
several more children as well as one adult civilian.1073
Possible military posts referred to in the evidence, even assuming they were
operational at the time of the attack, were 200 metres or more away from the
vicinity of the explosions, and this fact excludes the possibility of a sequence
of firing errors.1074
The Prosecution cites evidence that SRK mortar units could expect their first
shot to be accurate within 50 metres.1075
- Having considered all the evidence, the Trial Chamber finds beyond reasonable
doubt that three mortar shells (two 82 mm and one 120 mm calibre), were fired
into the residential neighbourhood of Alipasino Polje around noon on 22 January
1994, killing six children and injuring other civilians, including children.
The evidence is insufficient to establish that a fourth shell was launched
as part of this attack. The Trial Chamber accepts the unanimous testimony
of the eyewitnesses that the attack was carried out on an otherwise quiet
day during a lull in hostilities (a lull of many days, according to Witness
Q). No activity of a military nature was underway in the neighbourhood, nor
were any soldiers to be seen, and groups of children, including Todorovic
and Kapetanovic, had gone out onto the streets to play. Witnesses AI and Aganovic
had taken advantage of the local peace to go walking in their district.
- The Trial Chamber accepts the Defence’s argument that it has not been established
beyond reasonable doubt that the shells were fired from the vicinity of the
Institute for the Blind in Nedarici. Of the three witnesses who were outdoors
at the time of the incident, only Witness AI claimed to have heard the sound
of a mortar being fired, that is, the firing of the third shell, though not
the firing of the first two. The Trial Chamber is not persuaded that Witness
AI, who was at ground level on a street flanked by tall buildings at some
distance from Nedarici, was in a position to accurately identify the sound
he heard as the sound of a mortar being fired in Nedarici. The Trial Chamber
has taken account of the testimony of Witnesses Q, AI, Kapetanovic, and Aganovic
that this was not the first time Alipasino Polje had been attacked from Nedarici.
Witness DP17 used Exhibit D1814 to mark the position of an SRK mortar unit
he had seen in Nedarici sometime in 1993.1076
According to the witness, the unit was equipped with one 82 mm mortar and
one 120 mm mortar.1077
Ismet Hadzic also testified to the presence of 82 mm and 120 mm mortar launchers
in Nedarici during the relevant period.1078
This evidence is insufficient for establishing that Nedarici was the source
of the shells on 22 January 1994.
- Nevertheless, the precise location or locations from which the three shells
were fired is not critical to the Prosecution’s case, and none is alleged
in the Indictment.1079
The Trial Chamber finds that Mirza Sabljica employed the correct methodology
to determine the direction from which the shells had landed, and considering
that the impact traces were considerably more pronounced to the west of the
craters, it can safely be concluded that the shells came in from either the
west or north of west. Employing Sabljica’s measurements, the Vilicic Shelling
Report asserts that an “elliptical crater (with axis 0.15 and 0.20 m) and
about 0.06 m deep in the asphalt surface [of Cetinjska Street] coincides to
action of an 82 mm mortar shell having a drop speed Vc slightly over 68 m/s
( see Table 8 [of the Vilicic Shelling Report]) indicating that it was fired
with the first increment charge and at elevation of about 85o, corresponding
to the range of 250 m”.1080
The Trial Chamber disagrees with this statement. Table 8 of the report concerns
concrete, not asphalt surfaces. Secondly, Table 8, which has to be read in
conjunction with Table 1 of the report, states that a 4 cm deep crater can
be caused by an 82 mm shell fired without a charge and falling at an angle
of 85.2 degrees. But it also allows for the same crater depth to be
caused by a shell landing at an angle closer to 46.5 degrees where it has
been fired with one or more charges. In the former case the maximum range
of the shell is 84 metres, according to Table 1, but in the latter case the
range is up to 1,325 metres on the first charge (the approximate distance
of Cetinjska Street from Nedarici), up to 2,218 metres on two charges, etc.
The same is true, according to the report, of a 6 cm deep crater: that is,
it can be caused by a steeply fired and relatively slow shell, or by a relatively
fast shell fired at a gentler angle. The Vilicic Shelling Report asserts that
“the clues on the ground do not provide enough evidence to determine the direction
of fire”, and thereby concludes that the drop angle must have been close to
85 degrees.1081 But
this is contrary to the undisputed fact that the impact traces were strongly
elliptical and significantly displaced to the west.
- The Trial Chamber notes that no evidence has been received on the level
of charge used to fire the 82 mm shells in this case. The pronounced asymmetry
of the traces does, however, suggests that the angle of the shells was not
steep. Therefore, the Trial Chamber disregards the conclusions of the Vilicic
Shelling Report in relation to this incident. The Defence’s assertion that
the attack could have been staged by the ABiH is not supported by any evidence
and is therefore dismissed. The Trial Chamber reiterates that a mere hypothesis
is not a basis for reasonable doubt. Some fact or allegation must be relied
on to turn a mere possibility into a reasonable one. Moreover, concerning
the alleged possibility that the ABiH mistakenly hit Alipasino Polje while
aiming at Nedarici, for which there is not the slightest factual basis, the
fact that the two locations are about a kilometre apart, would necessarily
exclude such allegation.
- The Trial Chamber finds that the three shells were fired from SRK positions
somewhere to the west of Alipasino Polje. If the 82 mm shells were indeed
fired with the first increment charge as asserted in the Vilicic Shelling
Report (something which has not been established), they most probably originated
in Nedarici, which was under SRK control.1082
But if higher charges were used, giving an 82 mm shell a range of several
kilometres, they could have been launched from SRK positions further afield,
i.e. west or southwest of Stup.1083
- The final question is whether the shells were aimed by the SRK at a military
target in Alipasino Polje. There is no evidence that the so-called “Basis
of Stela ” was a military facility in January 1994. A letter dated June 1993
refers to Stela as a “locality” of the 102 Motorized Brigade, without further
explanation. Only two witnesses had heard of Stela, and both thought it was
a cafe. If indeed the “cafe” was only 50 to 100 metres from the incident site
(as reported by Witness Q), no military activity was reported in its vicinity.
Three witnesses mentioned the base of Kulin Ban, locating it at a distance
of 500 metres (Todorovic), 150 metres (Kapetanovic), and 200 metres (Kucanin)
from the site of the explosions. Kulin Ban’s entrance was on Rade Koncar Square,
a street on the eastern side of the housing block. The western side of the
block was formed by Cetinjska and Klara Cetkin Streets, which ran into each
other. In between the two rows of buildings fronting the streets lay open
parkland, and it was there that the 120 mm shell struck. The Trial Chamber
recalls that all four eye-witnesses to the attack testified that the third
(or final) shell fell on the streets to the west – that is, Cetinjska
or Klara Cetkin. So did one of the earlier shells. It follows that the 120
mm shell struck the park either first or second in sequence. It was the closest
to where Kulin Ban is said to have been housed. Therefore it cannot be said
that the three shells fell progressively closer to Kulin Ban. Considering
the sequence of the explosions, together with the fact that the shelling ceased
after just three volleys were fired, all of which landed wide of Kulin Ban
(two at a distance of at least 150 metres), the Trial Chamber concludes that
Kulin Ban was not the intended target of this attack.
- The Trial Chamber thus finds that the third scheduled shelling incident
constituted an attack that was, at the very least, indiscriminate as
to its target (which nevertheless was primarily if not entirely a residential
neighbourghood), and was carried out recklessly, resulting in civilian casualties.
(d) Dobrinja Areas
- The residential settlement of Dobrinja, which is situated alongside the
airport to the south-west of the city, was constructed as the athletes’ village
for the winter Olympics in Sarajevo in 1984. In the early stages of the conflict
prior to the Indictment Period, it was isolated from the rest of the city.1084
The confrontation lines on the eastern side of Dobrinja ran approximately
along a street separating the SRK-controlled areas of Dobrinja I and IV from
ABiH-controlled areas of Dobrinja II and III B.1085
(i) Orthodox Church and School of Theology
- The Trial Chamber heard evidence from witnesses living in ABiH-controlled
areas of Dobrinja about shooting incidents from SRK-controlled areas of Dobrinja
I and IV and Nedjarici, and in particular from the areas of the Orthodox Church
and the School of Theology.
- Eldar Hafizovic remembered that sometime around November 1992, he helped
an adolescent girl who had been shot during the day as she ran across Oslobodalica
Sarajeva street.1086
With the help of an ABiH soldier, he pulled the girl to safety1087
and noticed that the victim, who was wearing jeans and a T-shirt, had been
wounded in the face.1088
After the girl was injured, tracer bullets continued to be fired, enabling
Hafizovic to determine that the shooting originated from the direction of
SRK-controlled territory in Dobrinja I.1089
According to Omer Hadziabdic, a resident of Dobrinja IIIB,1090
civilians in his neighbourhood were shot from 1992 through until 1994.1091
Nedim Gavranovic, a resident of Dobrinja III,1092
testified without elaborating on how he had determined the source of fire
that women and children were shot in his neighbourhood from Dobrinja IV.1093
According to Ismet Hadzic, the commander of the ABiH Dobrinja brigade,1094
the SRK had positioned soldiers in elevated areas around Dobrinja “in order
to shoot at the population.”1095
- Residents of ABiH-controlled areas of Dobrinja singled out an Orthodox
Church in Dobrinja IV, which had been under construction when hostilities
broke out and retained external scaffolding throughout the Indictment period,1096
as one of the sources of sniping fire against civilians in Dobrinja. That
church could be seen from the three bridges that linked Dobrinja II to Dobrinja
III.1097 Three bridges
were mostly used: the bridge close to the eastern part of the confrontation
line going from Emile Zola street to the square,1098
the bridge used for traffic connecting Dobrinja II and Dobrinja III, then
a pedestrian bridge also connecting Dobrinja II and Dobrinja III.1099
Sadija Sahinovic, a resident of Dobrinja II, testified that during the conflict
“shooting went on incessantly” from Dobrinja IV;1100
people who crossed the bridge1101
were sometimes "wounded there from the church".1102
“Snipers weren’t selective in their choice. They targeted children and women,
everyone ”.1103
- Residents also testified that there was no electricity or water in their
apartment throughout the conflict.1104
Sahinovi c and other inhabitants of Dobrinja II fetched drinking water from
a well in Dobrinja C5 and washing water from the Dobrinja river, where there
was a bridge connecting Dobrinja II to Dobrinja III.1105
They could not stay long at the river, because "there was a sniper there who
had a good view of the whole river. And he would shoot sometimes all day long,
and many, many people got wounded and got killed at the river."1106
Vahida Zametica, another resident of Dobrinja II, said that "many, many people
got wounded and got killed at the river."1107
Her mother, her brother and she would go to the river for water. They were
shot at when getting water on “many occasions.”1108
The front line was "close enough to be able to snipe at us every day and to
kill us."1109 Sandbags,
up to a height of two meters,1110
were placed along the length of the bridge on both sides, to protect civilians
crossing the bridge.1111
A well was being dug so that people would not risk being wounded or killed
while fetching water from the river.1112
- Sahinovic and Zametica both testified about the killing of the mother of
Zametica, an incident specifically alleged in Schedule 1 of the Indictment,
number 6, as evidence representative of a campaign of sniping fire against
civilians.
(ii) Scheduled Sniping Incident 61113
- Sadiha Sahinovic testified that on 11 July 1993, at about 2 or 3pm,1114
she went with her friend Munira Zametica to fetch water at the Dobrinja river.1115
Sniping had gone on throughout the day.1116
Sahinovic explained that she and Zametica found shelter with a group of 6,
7 persons in an area under the bridge where the river ran.1117
They did not dare to approach the riverbank until Zametica overcame her hesitation
1118 and approached
the riverbank. She was filling her bucket with water when she was shot.1119
It was too dangerous for Sahinovic and for Vahida Zametica, the 16-year old
daughter of the victim who came to assist once alerted of the incident, to
leave the protection of the bridge.1120
The victim was lying face down in the river, blood coming out of her mouth.
Vahida heard the shooting continue and saw the bullets hitting the water near
her mother.1121 ABiH
soldiers passing by the bridge saw what had happened, positioned themselves
on the bridge behind sandbags and shot into the direction of the Orthodox
Church.1122 The victim
was pulled out of the water and taken to hospital; she died later that afternoon.1123
- The Defence claims that the victim could not have been hit from “VRS” positions
because the Dobrinja River or the victim could not be seen from there; the
Defence argues that ABiH soldiers had fortified positions on the bridge, that
combat was ongoing at the time the incident occurred and that the victim was
hit by a stray bullet.1124
- Sahinovic testified that the bullets directed at the victim originated
from the Orthodox Church in Dobrinja.1125
She, like the victim’s daughter, indicated that shooting at the river always
originated from the Orthodox Church.1126
This is both consistent with the side of the bridge at which those who had
come to fetch water had taken shelter as with the observations in respect
of continuing fire which prevented those present from removing the victim
from the riverbank. SRK firing positions on the tower of the Orthodox Church
and nearby high-rise buildings were confirmed by several witnesses.1127
Photographs of the area tendered into evidence demonstrate conclusively that
there was a line of sight between the tower of the Orthodox Church and the
spot where the victim was shot. The explanation given by witness DP9 as to
why it was unlikely that SRK soldiers would fire from the Orthodox Church
is not convincing.1128
The claim by the Defence that from the place where the victim was shot no
line of sight existed to VRS positions is contradicted by evidence in the
Trial Record, in particular photographs of the site. The victim was at the
north-western side of the bridge when she was hit. The possible sources of
fire from where one could hit a person below the bridge are very limited,
due to the tunnel-shaped watercourse of some length under the bridge. This
has the effect of narrowing the area from where there is a line of sight to
the spot below the bridge. The tower of the Orthodox Church is within that
narrow area. The evidence remains uncontradicted that the area of the Orthodox
Church from where the fire came from was within SRK-controlled territory.1129
The Trial Chamber is satisfied beyond reasonable doubt that the Orthodox Church
area, Dobrinja IV, was controlled by SRK forces.
- The Trial Chamber also rejects the defence’s claim that ABiH soldiers at
that time held fortified positions on the bridge and that the victim was hit
by a stray bullet fired during combat. Reliable testimony establishes that
ABiH soldiers passed by after the event and only then opened return fire in
the direction of the Orthodox Church. In the present case, the activity the
victim was engaged in, the fact that civilians routinely fetched water at
this location and her civilian clothing were indicia of the civilian status
of the victim. At a disctance of 1100 metres (as determined by Hinchcliffe),
the perpetrator would have been able to observe the civilian appearance of
Zametica, a 48 year old civilian woman, if he was well equipped, or if no
optical sight or binoculars had been available, the circumstances were such
that disregarding the possibility that the victim was civilian was reckless.1130
Furthermore, the perpetrator repeateadly shot toward the victim preventing
rescuers from approaching her. The Trial Chamber concludes that the perpetrator
deliberately attacked the victim. The mere fact that at the distance of 1100
metres the chance of hitting a target deteriorates does not change this conclusion.
The suggestion by the Defence that the cause of death should be doubted in
the absence of specific forensic medical information is also rejected. The
course of events sufficiently proves that Zametica’s death was a consequence
of direct fire opened on her.
- The Trial Chamber finds that Munira Zametica, a civilian, was deliberately
shot from SRK-held territory.
(iii) Scheduled Sniping Incident 181131
- The Prosecution also called Sanija Dzevlan, who lived in Dobrinja IIIA,1132
to testify about an instance where she was shot in Dobrinja.1133
She testified that on 6 January 1994, she cycled to the hospital located in
Dobrinja II to pick up medicines for her sick mother.1134
The day was particularly calm,1135
and she was wearing brown trousers, a yellow anorak and was not carrying arms.1136
While cycling back from the hospital located in Dobrinja II, at about 3 or
4 pm,1137 she was shot
in the buttocks just after crossing one of the bridges connecting Dobrinja
II to Dobrinja III.1138
She felt a blow and realised that she had been shot when she saw 3 or 4 bullets
rebounding off the concrete around her.1139
She managed to keep riding her bicycle and reached her home.1140
Her neighbours helped her to the hospital where she remained for about 10
days.1141 She was wounded
on the buttocks but the bullet(s) did not hit the bones.1142
- The Defence does not contest that the victim was a civilian nor that she
was wounded by a bullet, while crossing the bridge on Emile Zola street.1143
The Trial Chamber is indeed satisfied beyond reasonable doubt that the clothing
of the victim, the activity she was engaged in (riding a bicycle), the fact
that she was unarmed, were indicia of Dzevlan’s civilian status and would
have put a perpetrator on notice of her civilian status. But the Defence claims
that the evidence is insufficient to establish the source of fire1144
and interprets the fact that several bullets were fired as proof that there
was combat activity at the time.1145
It further maintains that it is unlikely that the bullets were fired from
as far as the Orthodox Church and hit the victim’s buttocks, when, being on
a bicycle, she was barely visible behind the 1-1.5 meter-high barricade. The
Defence notes in that respect that her testimony regarding the time when the
sandbags were placed is inconsistent with the testimony of Sadija Sahinovic
and Vahida Zametica.1146
All this, in the Defence’s view, makes it impossible to conclude that she
was deliberately targeted.1147
- Dzevlan testified however that she was cycling in the direction of Dobrinja
III, leaving behind her the bridge which connected Dobrinja III to Dobrinja
II, when she heard fire coming from her right, from Dobrinja IV, the area
of the Ortodox Church.1148
Witness DP9 confirmed that the building Dzevlan pointed at on photographs1149
was the Orthodox Church.1150
Dzevlan further testified that the area of the “church” was held by the SRK
forces.1151 The Trial
Chamber finds that witness credible and her evidence reliable.1152
The Trial Chamber has already found that the area of the Orthodox Church in
Dobrinja IV was under SRK control. The Trial Chamber finds that the bullets
which hit the victim came from the area around the Orthodox Church, thus either
the building of the Orthodox Church or a building in the vicinity of that
Church. The evidence conclusively demonstrates that there was a line of sight
between the area of the Orthodox Church and the spot where the victim was
shot.1153 The witness
did not deny that barricades extended the full length of the bridge and then
approximately one metre past either side of the bridge, offering thus some
protection, but testified that she was shot in the open area where the barricades
end. A close examination of the photograph of the spot where Dzevlan was shot,
P3264, shows that there was a line of sight between the site of the incident
and the area of the Orthodox Church. The Trial Chamber finds that there was
no ongoing combat activity at the time and in the vicinity of the incident.1154
The only reasonable inference is that the bullet, coming from Dzevlan’s right-hand
side, came from the direction of the Orthodox Church located approximately
800 metres from the site of the incident.1155
That Church was identified by credible and reliable witnesses as a source
of fire in Dobrinja IV. The Trial Chamber finds that Dzevlan was shot from
SRK-controlled territory.
- Dzevlan testified that several bullets ricocheted around her, while she
was riding her bicycle and after she was hit. The Trial Chamber is satisfied
that the sequence of events demonstrates conclusively that Dzevlan was deliberately
targeted. In sum, the Trial Chamber finds that the victim, a civilian, was
deliberately targeted from SRK-controlled territory.
- The Prosecution also tendered detailed evidence concerning another alleged
example of deliberate sniping at civilians from the SRK-controlled area of
the School of Theology which is identified in Schedule 1 of the Indictment
under number 22. The conclusions found in this incident are that of the Majority
of the Trial Chamber. Judge Nieto-Navia dissents and expresses his views in
the separate and dissenting opinion appended to this Judgement.
(iv) Scheduled Sniping Incident 221156
- In 1994, Ramiz Grabovica, an ABiH conscript in logistics, was employed
by the public transport company to drive civilians on a regularly scheduled
bus route between the Alipasino bridge and Dobrinja during cease-fires.1157
On 25 May 1994, a sunny day,1158
at approximately 11:40 am,1159
Grabovica reached his last stop at the intersection of Nikole Demonje Street
and Omladinskih Brigada Street in the centre of Dobrinja,1160
stopped the red and white bus, opened the three doors of the bus and turned
off the engine to save fuel.1161
As he waited for passengers to board, Grabovica heard a single shot1162
coming from the direction of Nedarici, which was controlled by the SRK,1163
precipitating panic on the bus.1164
Passengers, nearly all women who were not wearing military uniform or carrying
weapons 1165 believed
that a sniper was shooting at them from the Faculty of Theology in Nedjarici,1166
a notorious SRK firing position at the time of the event.1167
He saw that two middle-aged women had been injured. The one sitting on the
right side of the bus was holding her knee and the other sitting in the opposite
side of the aisle was bleeding profusely.1168
Grabovica explained that “at that moment, I was also in panic, but I realised
that I had to drive them to the hospital. […] I switched on the engine, closed
the doors, even though all the other passengers were saying, 'open, open,
because the sniper is shooting’. […] I closed the doors, started, and because
the hospital was about a hundred metres away, I went over the sidewalk and
through a grassy patch, and I made it to the hospital.” 1169
The victims, Sehadeta Plivac and Hajra Hafizovic, were taken off the bus and
remained at the hospital where they received medical assistance.1170
- After the incident, Grabovica drove back to the depot at Velikih Drveta
on the Alipasino bridge,1171
where he was interrogated by the local police, who inspected the bus and took
photographs of the bullet impact point. The police disclosed their findings
to Refik Sokolar, a police investigator at the Novi Grad Public Security Station,
who found that the source of fire was the School of Theology in Nedjarici.1172
Grabovica testified that he did not hear shooting prior or subsequently to
the incident.1173 He
added that there were no soldiers, military equipment or military activity
in the immediate vicinity of the site of the incident or along the route he
took on that day,1174
but that he saw members of the local civilian police along the way.1175
- The Majority of the Trial Chamber is satisfied that the events occurred
as recounted by Grabovica and that the passengers of the bus were civilians.
Although Grabovica was a military conscript employed to transport civilians
in a bus of the public transport company, he did not carry weapons and was
not dressed in a military uniform.1176
There is no evidence in the Trial Record, which could suggest that the bus
transported combatants or was used for a military activity. The bus was visibly
a civilian vehicle, which only functioned during cease-fires along a regularly
scheduled bus route.
- The Majority of the Trial Chamber is also satisfied that the passengers
of the bus were targeted from the area of Nedjarici.1177
Grabovica testified that the engine of the bus was switched off and that the
area was quiet when he heard a single shot hitting the bus and the sound of
gunfire coming from the direction of Nedjarici. In that direction, the SRK
frontline was approximately 750 metres away.1178
Grabovica testified that there was a line of sight from the Faculty of Theology
to the site of the incident.1179
On photographs of that site, Grabovica pointed out a shopping centre and two
houses erected several hundred metres away from the alleged origin of fire,1180
which did not exist at the time of the incident and obstruct the line of sight
to the Faculty of Theology.1181
Grabovica testified that he was interrogated by the local police, who inspected
the impact point of the bullet on the bus. The local police communicated the
results of the inspection to Sokolar, who testified that the victims were
hit by a ricocheting bullet fired from the direction of Nedjarici.1182
The Prosecution alleges two sources of fire in Nedjarici. One of these sources
is indicated by a red circle close to the confrontation line, north-west to
the site of the incident. Witness DP8 testified that there was no line of
sight between these two points.1183
A close examination of the map P3728 (incident 22) shows that indeed there
is no line of sight because high buildings located along the Bulevar Branioca
Dobrinja obstruct the view. In relation to the source of fire alleged by Grabovica,
the witness testified that there was a line of sight between the Faculty of
Theology and the site of the incident. According to the Defence witness DP8,
there was no line of sight from which a perpetrator could have fired from
the Faculty of Theology, because houses erected between the frontline and
the site of the incident obstructed the view to the site of the incident.
Grabovica explained, however, that the small constructions seen on the photographs
and which obstruct the view to Nedjarici did not exist at the time of the
incident. Witness DP8 testified that the Faculty of Theology was the highest
building in the area of Nedjarici, which mainly consisted of houses. A close
examination of photographs of the area of the incident shows that there is
indeed a line of sight between the site of the incident and the Faculty of
Theology. The Trial Chamber further notes that the distance between these
two points is approximately 1,500 metres. Although a distance of 1,500 metres
is great for small arms fire to aim at a target, the Majority has no doubt
that a bus is an object big enough to be seen and targeted at such a distance
(from or around the Faculty of Theology to the site of the incident). There
is no evidence however, which could allow it to conclude beyond reasonable
doubt that the gunfire which hit the victims originated from the Faculty of
Theology. Yet, the Majority cannot discount the fact that there was one line
of sight between the site of the incident and Nedjarici. Considering the evidence
that the fire originated from the direction of Nedjarici is reliable, the
only reasonable inference is that the bullet, which hit the victims, was fired
from the area of Nedjarici. The Majority is thus convinced that the bullet
which hit the victims originated from Nedjarici. The Majority is further convinced
by the evidence which demonstrates that the area of Nedjarici was controlled
by the SRK at the time of the incident.1184
- The Defence argues that the Prosecution failed to prove that the bus was
deliberately targeted.1185
The Defence emphasises that if the bus had been shot deliberately with the
intention of killing or injuring someone, it would not have been hit in the
area of the wheel, but on its window.1186
The Majority is satisfied that the bus Grabovica drove the day of the incident
was easily recognisable even at a long distance as a civilian object, used
for a regularly scheduled civilian activity. It could have not been mistaken
for a military object. Grabovica testified that the morning had been quiet
and that he did not hear shooting or military activities in the area, which
could have explained the gunfire. The fact that a single bullet was fired
towards the bus leads to the compelling inference that the passengers of the
bus were deliberately targeted. The Majority finds that the passengers of
the bus were deliberated targeted.
- The Majority of the Trial Chamber finds that the civilian passengers of
a civilian vehicle were deliberately targeted from SRK-controlled territory
and that such targeting resulted in the wounding of Sehadeta Plivac and Hajra
Hafizovic.
(v) Shelling Attacks on Civilians in Dobrinja
Area
- In addition to shooting incidents, the Trial Record discloses that shelling
occurred in ABiH-controlled areas of Dobrinja. UNPROFOR reported that five
shells landed near Dobrinja II one summer evening of 1993, leaving two dead
and 18 wounded,1187
and determined, after inspecting recovered shell fragments, that 82 mm mortar
shells had been involved in the incident.1188
UNPROFOR also determined from a crater analysis that the shells had arrived
from a northwestern direction1189
and concluded that,“taking into account the characteristics found on the ground
[at the site of the explosion,] one can say [with] 95% [certainty] that the
shooting came from the faculty of [Nedarici], which is found 1,300 m from
the spot of the incident.”1190
UNPROFOR investigators added that the “very populated street [in Dobrinja
where the incident had occurred] had been affected by hundreds of shells before
this incident.”1191
- A resident of Dobrinja remembered two specific instances of shelling where
he was injured. On 24 October 1992, Eldar Hafizovic was wounded during day-time
in Dobrinja III at 5 Trg Junaka Socijalistickog.1192
He was with his grandmother on a balcony located on the fifth floor of a building
cooking on a grill when a tank shell exploded about 1.5 metres away from him,
injuring one of the fingers on his right hand as well as his right knee.1193
Because the balcony faced the area of Gavrica Brdo, which he believed was
controlled by the SRK and where he had seen tanks in the past, Hafizovic concluded
that Gavrica Brdo “was the only possible direction [the tank shell] could
have come from.”1194
Hafizovic was injured on a second occasion on 13 January 1993 while attending
a get-together with other young people in an apartment on the ground floor
of a building in Dobrinja I.1195
At the time of the incident, the witness and his friends were using a gas
light as it was late in the evening and there was no electricity.1196
Hafizovic remembered hearing a loud explosion and realised that he was injured
in the head and bleeding.1197
He ran out into the street crying out for help1198
and heard SRK soldiers shouting from nearby confrontation lines: “Hey, you
Balijas, how many of you did we kill this time?”1199
Hafizovic recalled that fragments from a 82 mm mortar shell were recovered
by neighbours after the incident, but did not know where the shell had been
fired from.1200
- Other residents of ABiH-controlled parts of Dobrinja explained that the
whole area was shelled extensively during the conflict. Omer Hadzabdic testified
that “Shelling took place on a daily basis. [SRK soldiers] were shelling targets
according to their own choice … They were just firing at targets independently
of whether they were civilians or military targets. I, myself, was a victim
of a shell [on an unspecified date].”1201
Witness AE remembered that, in addition to shooting, civilians experienced
shelling in Dobrinja “Day in, day out.”1202
Ismet Had zic explained that “Every single part of Dobrinja was exposed to
severe shelling […] Thousands of shells were landing at the time. It was raining
shells.”1203 He added
that according to ABiH intelligence, the sources of this shelling were located
at “[the] Nedarici Barracks … The area below the University of Theology in
Nedarici, the area near Kasindolska Street […], Krtelji, Gornji Kotarac, Gavrica
Brdo, the Lukavica Barracks, and the playground right above the barracks.”1204
- In Schedule 2 of the Indictment, the Prosecution alleges three specific
instances under numbers 1, 2 and 4 where civilians in Dobrinja were attacked
from SRK-controlled territory and adduced detailed evidence to prove that
these attacks against civilians were launched by SRK forces. Incidents 1 and
2 express the views of the Majority of the Trial Chamber. Judge Nieto-Navia
expresses his views in relation to these two shelling incidents in the appended
separate and dissenting opinion.
(vi) Scheduled Shelling Incident 11205
- On 1 June 1993,1206
some residents of Dobrinja decided to organize a football tournament in the
community of Dobrinja IIIB.1207
It was a beautiful, sunny day.1208
Being aware of the danger of organising such an event, the residents looked
for a safe place to hold the tournament.1209
The football pitch was set up in the corner of a parking lot,1210
which was bounded by six-storey apartment blocks on three sides and on the
fourth side, which faced the north, by Mojmilo hill,1211
and was not visible from any point on the SRK side of the confrontation line.1212
Around 200 spectators, among whom were women and children, gathered to watch
the teams play.1213
Children aged between 10 to 15 years positioned themselves next to some old
cars, damaged by previous shelling, that had been overturned and placed around
the football pitch to mark the field.1214
Some residents also came out onto the balconies of the apartment buildings
surrounding the pitch to watch the football tournament.1215
- The first match of the tournament began at around 9 am and the second one
started an hour later.1216
Some minutes after 10 am, during the second match, two shells exploded at
the parking lot. Ismet Fazlic, a member of the civil defence, was the referee
of the second game.1217
He recounted that about 10 to 20 minutes into that game, as they carried out
a penalty kick, the first shell landed among the players in the centre of
the pitch.1218 He was
hit by shrapnel and sustained serious injuries in both legs as well as in
other parts of his body.1219
He immediately saw that there were eleven young men on the ground,1220
eight of whom had died on the spot.1221
Fazlic said that “three of my players [were] totally dismembered, their legs
and arms; it was only their track suit that held them together” and that many
people around the pitch were on the ground.1222
Omer Hadziabdic, who was 15 years old at the time,1223
was watching the match from the overturned cars when the first shell struck
the football pitch. He heard a very strong explosion which knocked him down.
He was wounded by shrapnel in his leg.1224
Nedim Gavranovic, who was 12 years old at the time, was standing behind one
of the goals when he heard the first explosion and felt a very strong blow.1225
He sustained an entry and exit wound in his right lower leg caused by shrapnel.1226
- The witnesses recounted that a second shell landed at almost the same spot
within seconds of the first shell.1227
It fell in front of a young man and tore his leg off.1228
After the second explosion, those who could began running away from the parking
lot to take cover. As Hadziabdic ran from the site, he was able to see many
wounded people on the ground.1229
- The Majority is convinced that the shelling incident of 1 June 1993 in
the residential settlement of Dobrinja IIIB occurred as recounted by eye-witnesses.
It finds that two mortar shells landed at around 10.20am at the parking lot
in the settlement of Dobrinja IIIB, where a crowd of approximately 200 people
had gathered to watch the football tournament.
- After the event, the wounded were taken to the Dobrinja auxiliary hospital.1230
Some were later transferred to the Kosevo hospital.1231
While the witnesses agreed that the explosion on 1 June 1993 injured many
people, there is disagreement as to the exact number of people killed or injured.
Dr. Youssef Hajir, who worked at the Dobrinja hospital at the time, testified
that he had never seen so many injured come to the hospital. 1232
The entire facility was filled with victims of the incident.1233
Although he did not recall the exact number of casualties, Dr. Hajir estimated
that there were approximately 130 to 140 injured and 13 to 14 dead.1234
He stated that 90 of the injured were treated at the Dobrinja hospital and
the rest was transferred to town, due to lack of capacity.1235
The Dobrinja hospital records contain a list of 136 names of the casualties,
twelve of which are recorded as killed.1236
Gavranovic, who was among the wounded at the Dobrinja hospital, recounted
that he saw many people he knew there.1237
He believed that 15 persons died and that approximately 50 to 70 were wounded.1238
Hadziabdic was taken to the Dobrinja hospital to be given first aid.1239
He also recognised many of those injured and killed and said that “mainly,
those were men, most of them were civilians and children”, and friends his
age.1240 Fazlic was
among those transferred from the Dobrinja hospital to the Kosevo hospital,
where he underwent treatment and remained for almost two months.1241
He believed that a total of 16 people were killed and 82 or 83 wounded, including
children.1242 Ismet
Hadzic, a resident of Dobrinja and the commander of the ABiH 5th Motorised
Dobrinja Brigade, was not present when the incident occurred, but he recalled
that the shells that fell that day killed 15 people, including children, and
wounded 121 people, 56 of them severely.1243
It is noted that Exhibit D25, an ABiH 5th Motorised Dobrinja Brigade command
report dated 1 June 1993, signed by Commander Ismet Hadzic, indicated that
there were 11 killed and 87 wounded (six combatants killed and fifty-five
wounded and five civilians killed and thirty-two wounded).1244
Dr. Janko Vilicic, the Defence’s expert in shelling, disagreed with the Prosecution’s
alleged number of casualties (12 killed and 101 wounded), and stated that,
given the position of the spectators around the football pitch when the explosions
occurred, a total of 43 persons would be expected to have been hit by fragments
from the two shells.1245
The Majority finds that the number of victims estimated by the theoretical
model used by Vilicic is contradicted by the evidence. It finds that there
is sufficient specific and credible evidence1246
to conclude that it has been shown beyond reasonable doubt that the explosion
of 1 June 1993 in Dobrinja killed over 10 persons and injured approximately
100 others.
- The Defence submits that the shells were not deliberately fired by SRK
forces upon civilians. Based on the conclusions of the Vilicic Report, the
Defence argues that the shells could have been fired from ABiH territory.1247
One crater analysis investigation was conducted following the occurrence of
the shelling incident by Brice Houdet, an UNPROFOR representative.1248
His report stated that the two mortar shells fired that day at Dobrinja IIIB
were of a calibre of at least 81mm. Based on the splinter pattern of the shells,
Houdet indicated that the mortars were fired from a direction of between 138
degrees (2420 mils) and 143 degrees (2500 mils).1249
Having calculated the minimum possible angle of descent of the shells (45,71
degrees ) and the minimum range at that angle, he concluded that these could
have only been fired from the SRK side, “300 metres south of Lukavica”,1250
which is located to south of Dobrinja. Witness Y was present at the site of
the event when the crater analysis was carried out. He testified that the
shells landed at the foot of a building in Dobrinja and that the crater analysis
showed that these shells were fired from a short range. He added that “in
order to corroborate this statement made by specialists, the fact that these
shells landed right next to a screen or a protection screen which was indeed
the building over the parking (…) would go to show that the mortar shells
could only have been fired from a short range and more specifically so in
the direction of Lukavica”.1251
Christian Bergeron, Chef de Cabinet to UNPROFOR Commander of Sector
Sarajevo from April 1993 to April 1994, was at the Sector Sarajevo Headquarters
when Houdet prepared his report. He agreed that, based on Houdet’s analysis,
the fire had come from SRK-held territory.1252
He added that “on the basis of the line of fire, the direction of fire, and
by analysing the arc, we got to an area in which the mortar pieces were bound
to have been sitting. And in the Dobrinja sector, this possible area where
they could have been was entirely on the Serb side, and more specifically
so, towards the south of Lukavica ”.1253
After the occurrence of the shelling incident, the craters were filled with
a red plastic-like substance to preserve them.1254
John Hamill, a former UN Military Observer on the LIMA (SRK) side, met with
Ismet Fazlic and others in Dobrinja on 18 September 2001 at the Prosecution’s
request to examine the two shell impact sites.1255
Based on his analysis of the patterns of the mortar impacts on the ground,
Hamill concluded that the shells had been fired from a direction of 2200 mils,
i.e., east -south-east. He specifically pointed towards the area of Toplik,
an area east of Sarajevo in the direction of Lukavica monitored by the UNPROFOR,
as the source of fire.1256
Richard Higgs, a Prosecution’s expert witness on shelling, also inspected
the shell imprints in the parking lot.1257
In his report, Higgs stated that, after examining the mortar crater, he agreed
with Houdet’s findings that the shells were fired by a medium-size mortar
and that the direction of fire was east -south-east and within SRK-held territory.1258
Higgs plotted two solid lines and two broken lines (to represent the margin
of error ) on a map to show the direction of fire and to confirm Houdet’s
finding that the location of the mortars was within SRK-held territory.1259
- Vilicic accepted that, based on the dimensions and shape of the craters,
81 to 82 mm shells could have been responsible for the explosions.1260
He disagreed however with Houdet’s findings regarding the direction and the
source of fire.1261
In his report, Vilicic indicated that “the position of the plane of firing
(firing direction) was determined by an inadequately reliable method (by compass)
referred to markings from the shell action on the ground”.1262
In order to determine the direction of fire, Vilicic examined a set of 6 photographs1263
of the crater impacts taken on 21 November 1995, which were part of a forensic
report prepared by a ballistic expert of the BiH Ministry of Interior that
was not tendered into evidence. He affirmed that “it is possible to raise
doubt in marked references (photographs 4 to 6), being that the markings in
photographs 1 and 2 point to quite the opposite direction of firing”, i.e.,
towards ABiH-held territory in the northeast.1264
The Majority finds that Vilicic’s conclusion based the interpretation of these
photographs does not materially refute the methodology used by Houdet to establish
the direction of fire. No evidence in the Trial Record supports the Defence’s
claim that the shells were fired from ABiH territory. The Majority is satisfied
that the conclusions contained in Houdet’s report are not contradicted by
investigations carried out by Higgs and Hamill. It is convinced that the shells
that hit the football pitch were of a calibre of at least 81-82mm and originated
from the direction east-south-east.
- Fazlic indicated that the confrontation line was somewhere between 130-210
metres from the site of the event and Omer Hadziabdic gave almost similar
numbers (100-200 metres).1265
Higgs measured the distance on the map to be 320 metres.1266
Having closely examined and verified the accuracy of the assessment made by
Higgs on the base of the maps available to the Trial Chamber,1267
it finds that the distance from the site of the event to the confrontation
lines in the direction of the fire was approximately 300 metres.
- The Majority notes that, according to Houdet’s findings based on the minimum
angle of descent and the minimum range at that angle, the mortars were located
300 metres south of Lukavica.1268
Higgs, based on his examination of the shell imprints on the ground, considered
that the mortars could have been fired at a greater angle (50 to 55 degrees
and 70 degrees ) and from a shorter range (500 to 600 metres) than that indicated
by Houdet.1269 Vilicic,
using a different methodology, gave similar figures. In order to determine
the distance of the firing position, Vilicic used two elements: the crater
dimensions and the drop angle of the mortar shells.1270
He observed that, according to the forensic report mentioned above, the depth
of the crater was 3 cm, the radius was 15 cm and the tail fins of the shells
were not recovered.1271
He also indicated that the probability of hitting the intended target was
much lower if increment charges are used.1272
This information led him to the conclusion that the shells were fired from
a closer distance with primary charge, landing at low impact speed. The
second basis for his determination of the distance of the firing position
was the drop angle of the mortar shells. Vilicic estimated that the damage
caused to asphalt layers indicated that the two shells responsible for the
incident had drop angles of between 63 and 70 degrees.1273
He maintained that the angle of descent of the shells was between 63 and 70
degrees and that the distance of firing was between 300 metres, which would
correspond to the drop angle of 63 degrees, and 400 metres, which corresponds
to the drop angle of 71 degrees, from the site of impact.1274
The Majority notes that Vilicic appears to have reversed these figures, as
Table 9 of his report shows that a distance of 400 metres would correspond
to an angle of 60 degrees. The Majority accepts that there is significant
uncertainty concerning the reliability of the conclusions reached by Houdet
in this respect, since a steeper angle of descent of a mortar shell could
indicate that these were fired from a closer range. However, although the
Indictment does not refer to the precise range of fire or the location of
the mortars responsible for the attack, the absence of this information does
not harm the Prosecution’s case. The Majority observes that, given the distance
of the confrontation lines to the site of the event, even if the mortars had
been fired with primary charge, as suggested by Vilicic, their source would
have been SRK-controlled territory. Had the shells been launched from a greater
distance, as suggested by Higgs and Hamill, they would have been located well-within
the SRK side of the confrontation lines. Therefore, the Indictment’s allegation
that the origin of fire was SRK-held territory has been made out.
- The Majority takes account of the previous testimonies of witnesses that
recounted that the shelling of Dobrinja was a common occurrence.1275
Witnesses also told the Trial Chamber that the area of the parking lot was
shelled on previous occasions. Nedim Gavranovic testified that shells landed
at the parking lot “throughout the duration of the war, not every day, but
occasionally”.1276 Ismet
Fazlic said that the parking lot had been hit by shells on numerous occasions.1277
He remembered that the evening prior to the occurrence of the incident, a
shell had impacted only 10 metres north of a playground next to the parking
lot.1278
- The Defence submits, alternatively, that the intended target of this attack
was a legitimate military objective.1279
In support of this view, the Defence argues that the ABiH had headquarters
located in the proximity of the parking lot1280
and that a system of trenches ran only a dozen of metres away from this site.1281
The evidence indicates that the ABiH 5th Motorised Dobrinja Brigade headquarters
were not in the area of the parking lot, but in the Dobrinja II settlement.1282
Two witnesses indicated, however, that there was a nuclear shelter of the
Dobrinja IIIB community, located approximately 100 metres away from the parking
lot behind a block of flats 1283
which was used by the ABiH forces.1284
Other witnesses, all inhabitants of Dobrinja, testified that the nuclear shelters
in Dobrinja were not used as military facilities or served any military purpose.1285
The Majority finds that, regardless of whether the nuclear shelter located
in the Dobrinja III settlement served as military facility, it is not reasonable
to believe that it was the intended target of the attack, since an attack
carried out with mortars shells cannot inflict significant damage, if any,
on such a facility. Considering that only two shells were fired, that these
fell in quick succession and landed at almost the same spot on the parking
lot, and that the second shell did not land any closer to the nuclear shelter,
the Majority concludes that this was not the intended target of the attack.
- The Majority heard contradictory evidence regarding the use of connecting
trenches that existed in Dobrinja. Witness DP9 testified that a system of
connecting trenches had been dug in the vicinity of the parking lot and that
these were used by ABiH forces for “manpower and supplies”.1286
Ismet Hadzic and Witness R, on the other hand, testified that these connecting
trenches were only used by civilians.1287
The Majority cannot reasonably exclude the possibility that these connecting
trenches, although used by civilians, were also used by ABiH soldiers. However,
considering the pattern of the firing and that the second shell fired did
not fall any closer to the location of the trenches indicated by Witness DP9,
the Majority concludes that these trenches were not the intended target of
the attack.
- The Defence presented evidence that suggests the establishment of a second
line of defence in Dobrinja.1288
The witnesses heard by the Trial Chamber testified that this second line of
defence did not exist.1289
Considering that the evidence in the Trial Record insufficiently demonstrates
the exact location, or even the existence, of the second line of defence in
Dobrinja, the Trial Chamber concludes that the attack was not aimed at an
alleged second line of defence.
- No other evidence gives the Majority reason to believe that any other military
facility in this area was targeted, and missed.
- Witnesses heard by the Trial Chamber stated that a certain number of ABiH
soldiers was present at the football match. Hadzic, the commander of the ABiH
5th Motorised Dobrinja Brigade, acknowledged that off-duty soldiers were among
the casualties.1290
He was of the opinion that the proportion of civilian and military killed
or injured that day was roughly fifty-fifty.1291
Exhibit D25, an ABiH 5th Motorised Dobrinja Brigade command report dated 1
June 1993 signed by Hadzic, indicates that there were “six combatants killed
and fifty -five wounded and five civilians killed and thirty-two wounded”.1292
Two eye-witnesses of the event, Gavranovic and Hadziabdic, recalled seeing
soldiers in uniform, although unarmed, among the spectators.1293
Hadziabdic believed that the soldiers made up approximately a third to one-half
of the crowd present at the parking lot.1294
Gavranovic was of the opinion that approximately 20 to 30 percent of the crowd
was made up of soldiers in uniform.1295
Yet, Fazlic, another eye-witness of the shelling incident, said that the crowd
gathered for the football tournament was composed mainly of children, young
people and a few women.1296
He told the Trial Chamber that no one present at the game was in military
uniform or wearing a military insignia or carrying weapons, although some
may have been off-duty police officers or soldiers.1297
According to this witness, all the players were wearing jogging or sports
outfits.1298 The eye-witnesses
of the event testified further that the football tournament took place on
a quiet day when there was a lull in hostilities.1299
The Majority understands the evidence to show that there were soldiers present
at the parking lot, who were off-duty, unarmed and not engaged in any military
activity. It finds that, although soldiers were present at the improvised
football pitch, the crowd gathered there was carrying out a civilian activity,
i.e., playing football.
- The Defence submits that the football pitch was located very close to the
confrontation lines,1300
where a civilian gathering would not normally be expected to take place.1301
According to the Defence, “the Bosnian-Serb forces could not see from any
place whatsoever what was happening on the other side of the buildings”,1302
and “it is possible that soldiers heard noises and exclamations near the HQ
location ”1303 and presumed
that the ABiH was mounting an attack there.1304
It alleges that “this hypothesis should obviously be held in discharge so
that if a fire [...] had come from the areas under SRK control, the collateral
damage would have been here perfectly understandable and explainable”.1305
The evidence confirms the Defence’s submission that, due to its location,
the parking lot was not visible from SRK lines.1306
One witness believed the crowd could not be heard from the SRK side of Dobrinja.1307
The Majority notes that the parking lot was shelled well after the tournament
began. It finds that the Defence’s suggestion that, based on the noise made
by the crowd yelling and cheering the game, the SRK forces could have suspected
ABiH infantry troops to be preparing for attack is too improbable to accept,
since these troops would not have normally revealed their presence to the
enemy by making noise. Had the SRK forces launched two shells into a residential
neighbourhood at random, without taking feasible precautions to verify the
target of the attack, they would have unlawfully shelled a civilian area.
The Majority notes that there is no evidence on the Trial Record that suggests
that the SRK was informed of the event taking place in the parking lot. However,
had the SRK troops been informed of this gathering and of the presence of
ABiH soldiers there, and had intended to target these soldiers, this attack
would nevertheless be unlawful. Although the number of soldiers present at
the game was significant, an attack on a crowd of approximately 200 people,
including numerous children, would clearly be expected to cause incidental
loss of life and injuries to civilians excessive in relation to the direct
and concrete military advantage anticipated. In light of its finding regarding
the source and direction of fire, and taking account of the evidence that
the neighbourhood of Dobrinja, including the area of the parking lot, was
frequently shelled from SRK positions, the Majority finds that the first scheduled
shelling incident constitutes an example of indiscriminate shelling by the
SRK on a civilian area.
(vii) Scheduled Shelling Incident
21308
- Enver Taslaman, an inhabitant of Dobrinja, testified that due to a water
cut -off in Dobrinja, a suburb of Sarajevo, inhabitants of “C5”, a settlement
in Dobrinja, replenished their water supply at well-known emergency water
points.1309 One of the
water points in “C5”, a well, was located in the front yard of the residence
of the sister of the witness Husein Grebic, an off-duty soldier at that time.1310
Grebic testified that in the middle of the afternoon of 12 July 1993, a fairly
clear day until 17:00 hours,1311
on his way to visit his sister,1312
he saw around a hundred or more canisters in the street.1313
While approaching his sister’s house, Grebic saw “quite a few people, women
and children with lots of canisters, plastic canisters and buckets”, maybe
twenty or twenty-five,1314
standing along the street leading to his sister’s house.1315
These people, mostly elderly, were waiting for their turn to enter into the
front yard of the house through an iron gate guarded by Enver Taslaman. Taslaman,
retired since 1978 and a member of the territorial defence in 1993, was tasked
with ensuring that no more than two persons from the queue would enter the
front yard or pump more than thirty litres of water from the well located
some four or five meters from the gate.1316
Rasim Mehonic, a retiree who had been queuing with his wife and two daughters
since dawn, testified that he was crouched next to Taslaman, waiting for his
turn to collect water1317
when, at approximately 15:00 hours, a mortar shell exploded. Witness AE, who
was sitting in the rear seat of a car parked along a garage door opposite
the well felt heat on her face when the shell landed1318
and when she looked up, she saw blood and body pieces flying everywhere as
well as heard screaming.1319
Mehonic felt the left side of his body hit by shrapnel; it was “covered in
wounds”.1320 Next to
him, Taslaman was hit on the arm and the left leg.1321
Grebic who was knocking at the door of his sister’s house, heard the sound
of an explosion and felt the right side of his body burn.1322
He dived into the corridor of the house, expecting to hear a second shell’s
explosion. He was then given first aid assistance by his sister and sister’s
friend.1323
- After fifteen or twenty minutes, Grebic came out of the house. He saw “a
lot of dead bodies and a lot of bodies in pieces”.1324
He believed that ten persons had been killed on the spot and that more had
been wounded.1325 Taslaman
described the scene after the shell had landed as “a massacre”: “the shrapnel
was everywhere ”, “I saw corpses down by the canisters and then shrapnel everywhere,
dead bodies on both sides”.1326
Mehonic fainted when he saw his wife’s and two daughters’ dead bodies.1327
Witness AE, also wounded by shrapnel, described how the body of an old man
leaning on the fence near her had been completely destroyed.1328
Zineta Arifagic, deputy director of the Dobrinja hospital where the victims
of the shelling incident had been transported, testified that a list of 30
persons injured or killed on 12 July 1993 by the shell which landed on Dobrinja
“C5” well had been drawn up.1329
Witness AK-2, who investigated the incident upon the request of UNPROFOR stated
in his report that the mortar shell killed 11 persons and wounded 13 others.1330
- The Majority is convinced that the shelling incident in Dobrinja C5 dated
12 July 1993 occurred as eye witnesses recounted it and that the mortar shell,
which landed on the water collection point on 12 July 1993 in Dobrinja C5
at approximately 15:00 hours upon approximately 50-60 persons,1331
killed over ten persons and wounded over ten more.
- Three independent on-site investigations of the shelling incident were
conducted by Hamdija Cavcic, a police investigator in the Department for Criminal
and Technical Investigations in Sarajevo,1332
Witness AK-21333 and
a UNMO, member of Witness AK-2’s team.1334
The tail fin of the mortar shell fired that day was found on the impact site
and led Cavcic, Witness AK-2, corroborated by a UNMO, to the same conclusion
that the mortar shell fired on 12 July 1993 in Dobrinja “C5” was of an 82
mm calibre. The Majority has no doubt that the conclusion reached by Cavcic
and Witness AK-2 is correct and that the mortar shell which landed on 12 July
1993 in Dobrinja “C5” and which caused civilian casualties was of a calibre
of 82 mm.
- The Defence refutes that the shell was fired from SRK-held territory, in
particular, the Prosecution’s argument that “there is no place on the ABiH
side of the confrontation line that the fire could conceivably have originated
without it being known by the local populace”,1335
and argues that if “water distribution had been the target of the SRK within
the scope of a campaign, there would obviously have been many more than the
few examples found by the Prosecution”.1336
- The Majority notes that the conclusions contained in the reports of Cavcic
and Witness AK-2 (corroborated by the report of a UNMO) were taken on the
basis of their de visu examination of the impact spot. The pattern
on the ground of the shell impact led them to the conclusion that the direction
of fire was “most probably” from west-north-west.1337
The Defence expert witness Vilicic’s opinion that the direction of fire of
the shell was most probably from “East-Southwest direction” was based on inverted
pictures 1338 of the
impact site and therefore cannot be seriously considered and is unreliable.
The Majority finds the conclusion reached by both Cavcic and Witness AK-2
credible and reliable and is convinced that the fire originated from the direction
west-north-west to the point of impact of the mortar shell.1339
- On the basis of that direction of fire, the Prosecution witness Richard
Higgs drew an unbroken red line for the direction of fire and broken lines
for the margin of error on a map of the area where the shell landed on 12
July 1993.1340 The Majority
accepts that a close examination of these lines shows that there is no place
on the ABIH side of the confrontation line - going through Dobrinja “C5 ”
at about 125 to 200 metres to the south of the well and at about 250-300 metres
to the west-north-west of the well-1341
where the fire could have originated without it being known by the local population.1342
The area between the Dobrinja “C5” settlement and the front lines was an open
area. The queue of people hiding and waiting their turn to pump water from
the well stretched along the street leading to Grebic’s sister’s house over
several hundred metres.1343
Hadzic also testified that the Dobrinja settlement was a very acoustic area.1344
Higgs testified that if a mortar shell is fired from a 300 metre distance,
people would probably hear the noise and detect the firing position.1345
Witnesses testified that they heard the noise made by the explosion of the
mortar shell on the impact site, not the noise of the mortar shell being launched.1346
- Alternatively, the Defence submits that the intended target of the mortar
shell fired on 12 July 1993 in Dobrinja “C5” was probably an ABiH military
objective. There were several possible military targets in the area, one identified
by the Defence as being the construction work for a trench leading to the
Butmir-Dobrinja tunnel.1347
That trench was to be dug 120 metres away from the site of the incident. The
command of the 2nd Battalion in Dobrinja was also about 120 metres to the
north-east of the site of the incident and the closest ABiH front line in
the direction of fire of the said mortar shell was about 250 metres away from
the impact site.1348
- The Majority is convinced that there was no immediate military objectives
near the well, which could have explained the firing of a shell in that area.
Furthermore, the Majority heard evidence that the area around well where civilians
pumped water was repeatedly shelled after the shelling incident of 12 July
1993;1349 Grebic recounted
how a mortar shell landed in the yard where the well is located a week after
the incident of 12 July 1992 took place and wounded his sister.1350
In view of the evidence in the Trial Record, the Majority is satisfied beyond
reasonable doubt that the intended objective of the mortar shell fired on
12 July 1993 in Dobrinja “C5” was not the construction work for a trench leading
to the airport tunnel, nor the ABiH command and frontlines, but the well where
civilians were expected to be found and used.
- On the basis of the above, the Majority finds that the water queue of civilians
in Dobrinja “C5” was deliberately targeted on 12 July 1993 by an 82 mm mortar
shell fired from SRK-held territory.
(viii) Scheduled Shelling Incident 41351
- In February 1994 Sabahudin Ljusa was 11 years old and was living at no.
3 Oslobodilaca Sarajeva Street.1352
Oslobodilaca Sarajeva Street ran approximately southwest to northeast. Immediately
beyond its southern tip was Sarajevo airport. A line drawn due east from the
site of the alleged incident would cross into SRK-controlled territory after
no more than 600 metres. At a distance of about 1.8 kilometres to the east
of this part of the line was Lukavica and the SRK’s headquarters.1353
On the 4th of that month humanitarian aid was brought by truck and unloaded
into a warehouse at no. 10 Oslobodilaca Sarajeva Street, on the western side
of the street. The witness was in the warehouse at the time. He crossed the
street to get a broom from the offices at no. 9, from where the aid was being
distributed. A crowd had assembled to receive it.1354
Ljusa was just about to cross back to the warehouse, when he “felt a very
loud explosion and I realised that something had hit me in the chest.”1355
He was knocked to the ground. After getting up and checking his wounds he
walked to a nearby clinic. Along the way he noticed three injured people and
many more at the clinic.1356
He heard a second explosion while at the clinic.1357
Ljusa was taken to Dobrinja hospital and from there to Kosevo hospital where
he remained for about three weeks.1358
Medical records confirm that he sustained severe shrapnel wounds to the chest.1359
- On the same day, Fata Spahicand three other women left their homes in Svrakino
in Novi Grad to go to Dobrinja to trade cigarettes for flour.1360
In Dobrinja the playground by the parking lot where the trading was to take
place was off Oslobodilaca Sarajeva Street. Spahicand her friends arrived
around 10.30 a.m.1361
A group of about 20 women and children had gathered.1362
In a short while the witness heard a whistling sound, followed by the explosion
of a shell falling on a nearby block of flats fronting Oslobodilaca Sarajeva
Street.1363 She heard
cries of help coming from that direction as she and others ran for cover to
the entrance of a building where humanitarian aid was being distributed.1364
They remained in that place for about 15 minutes, after which they returned
to the playground to retrieve their belongings.1365
Fata Spahicdescribed what happened as soon as they reached the playground:1366
“We heard this sound, and as we bent down, the shell landed near us.”1367
After a moment she noticed that some of the injured were crawling away from
the site, while two of her friends and two boys she did not know were killed
or were dying.1368 Spahicherself
was injured.1369 An
ambulance came and took the injured to a local surgery.1370
From there the witness heard the explosion of a third shell.1371