400. Like Spahic, Witness R went to Dobrinja on 4 February to barter for flour.¹³⁷² At the appointed place she sat down beside her bag of apples. Many people had gathered to exchange goods.¹³⁷³ Within half an hour Witness R heard the sound of a shell flying past: “One shell landed further away behind a building. That is how we felt it. And the other one landed in a spot where we were gathered.”¹³⁷⁴ Several minutes elapsed between the first and second explosions, and in that brief time Witness R and other women sought shelter in the entrance to a building, only to return to the original site believing the danger had past.¹³⁷⁵ Witness R was injured but was able to make her way to a nearby apartment from where she was eventually taken to a hospital in Dobrinja.¹³⁷⁶ She said that she had heard more explosions in Dobrinja in the course of that day but was in such a state of fear that she had lost count of them.¹³⁷⁷ A medical record from Dobrinja General Hospital attests to the fact that Witness R was “injured by shell explosion” in the leg on 4 February 1994.¹³⁷⁸

401. Another witness, Eldar Hafizovic was 17 years old at the time of the incident and was living on the third floor of an apartment block at no. 5 Oslobodilaca Sarajeva Street, on the eastern side of the street.¹³⁷⁹ He was in his flat when he heard a loud explosion.¹³⁸⁰ It was the first he had heard that day.¹³⁸¹ He looked out the front window and saw that the building across Oslobodilaca Sarajeva Street had been hit.¹³⁸² He saw wounded people in the street calling out for help.¹³⁸³ He then went out onto a balcony in the back of the flat to look for his brother. The balcony had a view over a playground.¹³⁸⁴ A second explosion at that moment injured Hafizovic in his right arm.¹³⁸⁵ The shell had hit the playground, wounding and killing people gathered there and scattering their goods.¹³⁸⁶ Hafizovic went out onto Oslobodilaca Sarajeva Street, heading for a nearby clinic, when he heard another loud explosion.¹³⁸⁷ This third shell “was very near, although I didn’t see where it fell exactly.... It fell on the playground... where I was wounded.”¹³⁸⁸ At this point the witness noticed a large hole and extensive damage at the ground -floor level of the building opposite his.¹³⁸⁹ At the clinic Hafizovic was given first aid and was taken to Dobrinja hospital where he saw other casualties of the incident.¹³⁹⁰ A hospital record dated 4 February 1994 describes Hafizovic’s injury.¹³⁹¹

402. The eye-witnesses had little to say about the direction and source of fire. Witness R testified that although she did hear the first shell fly past she was not able to tell the direction from which it had come.¹³⁹² Eldar Hafizovic indicated the location of his apartment on a map.¹³⁹³ The back of it (which had a view over the playground where, according to the witness, the second and third shells had fallen), faced approximately southeast. The front of the building across the street from his apartment (which according to Hafizovic took the first hit) faced the same direction.

403. The investigation team into the incident was headed by Zdenko Eterovic, a judge and investigative magistrate. A report he prepared on 4 February 1994 states that the team arrived on-site at 12.30 p.m.¹³⁹⁴ The report’s findings are that the first two shells struck at the same time, around 11.30 a.m. One shell fell against the ground floor of no. 8 Oslobodilaca Sarajeva Street wounding a child. The other struck the rear of an apartment block further east, killing a woman and a boy. A few minutes later a third shell exploded on a footpath running between a playground and a covered parking lot. Eterovic explained that he went to the local clinic and to Kosevo hospital to count the casualties.¹³⁹⁵ Altogether eight people are listed as having been killed by the shells (two of them after they had been taken to hospital) and 22 as having been wounded.¹³⁹⁶ Among those assisting Eterovic was Sead Besic, a police officer and crime technician in Sarajevo since 1989.¹³⁹⁷ The witness noted that the investigation limited itself to an analysis of the effects of two of the three shells, namely the two that struck the area of the playground. Besic photographed the site of these explosions.¹³⁹⁸ One photograph shows a flat rectangular concrete surface bounded by a footpath and a covered parking lot to the north and five-storey apartment blocks to the south. Lawns lie to the immediate east and west of the flat surface and these in turn are abutted by more five-storey apartment blocks. An arrow indicates the place where one of the shells struck, on the north-western edge of the playground.¹³⁹⁹ Another photograph is a close-up of the crater left by this shell. As explained by Besic, and as indicated by a compass included in the photograph, concentric lines on the ground caused by the force of the explosion fan out from the crater in an easterly direction.¹⁴⁰⁰ A view looking down on the crater shows the rear section of a stabilizing fin lodged in the ground ; this was determined by the witness to belong to a 120 mm mortar shell.¹⁴⁰¹ The other explosion examined by Besic occurred at the foot of a building at the southern end of the playground.¹⁴⁰² Rubble covers the site of this explosion. The tail-fin of what, according to the investigation team, was a 120 mm mortar is held clear of the rubble by its rod which is lodged in the rubble. An arrow and compass in one of the photographs has been placed parallel to the axis of the fin and suggests that the shell arrived from a direction east of northeast.¹⁴⁰³ Sead Besic confirmed that another shell (the one whose explosion was recorded but which was otherwise only superficially dealt with by the investigation team) landed against the eastern side of a building on Oslobodilaca Sarajeva Street.¹⁴⁰⁴ A sketch made by Samir Salman, a crime technician working with the investigation team, shows the impact sites of the three shells in relation to the playground, the apartment blocks, and Oslobodilaca Sarajeva Street.¹⁴⁰⁵ Besic prepared a report – under the signature of Samir Salman – in which he states that three 120 mm mortar shells fell in Dobrinja at around 11.25 a.m. killing seven named persons and wounding twenty.¹⁴⁰⁶ Besic’s report notes that the incoming direction of two of the shells was determined by compass readings to be, respectively, east and east-northeast, and concludes that the three shells were fired by the “aggressors […] from their positions at Lukavica”.¹⁴⁰⁷

404. The investigation team included Mirza Sabljica, a ballistics specialist.¹⁴⁰⁸ Sabljica prepared a report on the impact sites of the two shells north and south of the playground.¹⁴⁰⁹ In court he confirmed the report’s findings, namely that the shell that landed at the foot of the apartment block south of the playground was a 120 mm mortar that came from a direction east-northeast, “that is, the Energoinvest complex of buildings” in Lukavica; and that the shell that struck the north-western corner of the playground was of 120 mm calibre and landed from the east.¹⁴¹⁰ The witness conceded that it was “impossible” from the evidence to pinpoint the position from which the shells had been fired, even though there could be reasonable certainty about the direction.¹⁴¹¹ Compass readings taken in these circumstances were accurate to plus or minus five degrees.¹⁴¹² Sabljica acknowledged that he had not attempted to estimate the angle of descent of the projectiles but had instead drawn lines towards the east and east-northeast of the impact sites and found that these had met “somewhere around the Energoinvest building”.¹⁴¹³ That building “was only considered to be... an orientation point”, not necessarily the source of the attack.¹⁴¹⁴ The Chamber notes that Sabljica’s report gives precise measurements of the impact marks. These were not challenged in cross-examination. In relation to the first site mentioned, Sabljica measured a 9 cm deep crater with traces forming an ellipse ( axes measuring 25 cm and 135 cm) displaced eastwards from the crater’s centre; and in relation to the second site, the measurements were 7 cm for the depth of the crater and 35 x 170 cm for the ellipse formed by the traces, this again being markedly displaced towards the east.¹⁴¹⁵

405. The Trial Chamber now summarizes the evidence on the existence of military activity and possible military targets in the vicinity of the incident. Fata Spahictestified that she had encountered two ABiH soldiers that morning.¹⁴¹⁶ She came across them about five minutes prior to arriving in Oslobodilaca Sarajeva Street.¹⁴¹⁷ The soldiers advised the women not to proceed because of the intense shooting and shelling in Dobrinja.¹⁴¹⁸ The witness said there were no soldiers at the place where the people had gathered to receive humanitarian aid or at the playground where the witness had gone to trade.¹⁴¹⁹ Witness R did not see any soldiers or other armed individuals among the people gathered in Dobrinja to barter goods.¹⁴²⁰ Nor did she encounter any soldiers on the way to Dobrinja.¹⁴²¹ Eldar Hafizovic said that at the time of the incident there had been no soldiers or any form of military activity in Oslobodilaca Sarajeva Street or in the playground behind his apartment.¹⁴²² He knew of a “small office that belonged to the army” in the building across the street, that is 15 to 20 metres away from where he lived.¹⁴²³ He added: “Before the war, it was something like a kiosk […] And there were a few soldiers there occasionally. I don’t know. I didn’t really notice them and I wasn’t interested in them at all.”¹⁴²⁴ Later he said: “I know that they would occasionally go in there, people wearing camouflage uniforms”. He could not recall whether they were armed.¹⁴²⁵ The witness was not specific as to the date of these observations. Sabahudin Ljusa testified that he did not see any soldiers or military personnel at the place where humanitarian aid was being unloaded or in Oslobodilaca Sarajeva Street.¹⁴²⁶ However, near the entranceway to no. 6 Oslobodilaca Sarajeva Street, approximately 100 metres from the site of the first explosion, there was a “not very large” room or warehouse used by the Territorial Defence “just for the purposes of the protection of the local residents of this street during the war events. […] I don’t think that it was a military facility of any importance.”¹⁴²⁷ There was also a nuclear shelter in the vicinity of the incident, but it was flooded, completely neglected, and not in use by anyone.¹⁴²⁸ The witness added that he was not aware of any ABiH mortar units located in Dobrinja.¹⁴²⁹ Sead Besic, the crime technician, said that a command post of the 5th Motorised Brigade staff “probably was, must have been” located somewhere in Dobrinja. But he did not know where it might have been nor therefore how far from the site of the incident on 4 February 1994.¹⁴³⁰ Refik Sokolar was a crime investigator who lived in Dobrinja and worked at the local police station. He testified that while the ABiH had “smaller units” in parts of Dobrinja “there was no barracks, there was no place where they all came to”.¹⁴³¹ Finally, Ismet Hadžic, commander of the Dobrinja Brigade of the ABiH, testified that on 4 February 1994 there were no ABiH military units close to the site of the shelling incident.¹⁴³²

406. The Prosecution submitted that the evidence led on this shelling incident shows that all three rounds were fired “from the direction of the Energoinvest facility ” in Lukavica.¹⁴³³ The only possible military target – the small room at no. 6 Oslobodilaca Sarajeva Street used by the Territorial Defence – was of no significance.¹⁴³⁴ The Defence made general submissions on the Dobrinja shelling incidents without addressing the incident of 4 February 1994 specifically. It stated that “these incidents occurred in close proximity of [confrontation] lines” and that “in Sarajevo, the combats occurred on a daily basis”.¹⁴³⁵ The Defence further submitted that the Vilicic Shelling Report “establishes, very clearly for all cases that […] one cannot allege […] that the fire could have come exclusively from the Serbian lines”.¹⁴³⁶ The suggestion here appears to be that the shells which hit Dobrinja on 4 February 1994 could have been fired by the ABiH. The Vilicic Shelling Report makes several arguments concerning the incident of 4 February 1994.¹⁴³⁷ After examining a photograph taken by Sead Besic of the back section of the stabilizing fin lodged in the north-western corner of the playground,¹⁴³⁸ the Vilicic Shelling Report concludes that the shell’s “drop angle” was close to vertical. The Prosecution questioned Vilicic on the plausibility of this assessment of the shell’s angle of descent given that the camera had been positioned directly above the fin in the crater, in response to which Vilicic said that he could not see a problem with the procedure.¹⁴³⁹ According to his report, this shell was fired from as close as 300 metres from the site of impact, the implication being that it originated in ABiH-controlled territory. Inspection of a photograph of the other tail-fin (still attached to its rod and raised above the rubble) led the authors of the Vilicic Shelling Report to attribute to it a drop angle of 45 degrees, and to the conclusion that it “could have been fired from the East-Southeast direction, from area near Lukavica 1800 m from the place of impact”.¹⁴⁴⁰

407. The Trial Chamber finds beyond reasonable doubt that on 4 February 1994 around 11.30 a.m. three mortar shells struck a residential neighbourhood in Dobrinja killing at least eight civilians including a child and injuring at least 18 people including two children. The shell which exploded against the eastern facade of the apartment block on Oslobodilaca Sarajeva Street, and which injured Sabahudin Ljusa, struck first. Thus far the allegations in the Indictment have been made out. However, the Trial Chamber is not in a position to determine the calibre of the first shell in view of the fact that the official investigation into the incident paid little attention to it. It is also not apparent from the evidence that this first shell landed among “persons who were distributing and receiving humanitarian aid and children attending religious classes”. According to Ljusa, aid was being distributed not at no. 8 Oslobodilaca Sarajeva Street, which took the first hit, but at no. 9, on the opposite side of the street. The information on the “religious classes” is very slight.¹⁴⁴¹ Ljusa testified to seeing three injured people on his way to the clinic, and more at the clinic, but he did not witness where they were or what they were doing prior to the explosion.

408. The allegation as to the second and third shell explosions has been made out. The most likely sequence is that the first of these struck the north-western edge of the playground bounded by buildings to the east of Oslobodilaca Sarajeva Street. The playground at the time was being used as a trading ground for essential civilian goods. The evidence establishes that the people gathered there ran for cover after hearing the explosion in Oslobodilaca Sarajeva Street. Several minutes later, after they had emerged to retrieve their goods, the second shell (which was the first shell to strike the playground) exploded. This was the shell that caused most of the casualties. After a short while another shell exploded at the foot of an apartment block to the south of the playground. The Trial Chamber accepts the forensic evidence that the latter two shells were 120 mm calibre and flew in from the east and from east-northeast, respectively. Each of these shells left impact marks on the ground that were longer to the east of the crater and strongly elliptical, indicating that the angle of descent in each case was not steep. The Trial Chamber thus rejects the claim of the Vilicic Shelling Report that one of these shells could have been fired from a distance of only 300 metres, which would have resulted in a near-vertical angle of descent and near-circular impact traces.

409. A 120 mm mortar fired at the first increment charge at an angle close to 45 degrees has a range of 1,574 metres, according to the Vilicic Report.¹⁴⁴² It is not known in this case what level of charge was used. Since the Trial Chamber has determined that the confrontation line east of the site of the incident was no more than 600 metres away, whatever the charge used the projectile would have been carried, at a gentle elevation angle, a distance greater than 600 metres. Therefore the Indictment’s allegation that the origin of fire was SRK-held territory has been made out in relation to the two shells that were investigated in detail.¹⁴⁴³ It can reasonably be assumed that the first shell to strike formed part of the same attack and therefore also originated in SRK territory. This conclusion is not affected by any reasonable margin of error applied to the investigators’ estimation of the direction of fire. The Trial Chamber finds that the three shells struck civilians engaged in peaceful activities. No military personnel were seen in the vicinity at the time of the attack. The Trial Chamber rejects the suggestion that the office of the Territorial Defence mentioned by Sabahudin Ljusa and Eldar Hafizovic was the target of the attack. The sequence of shell explosions tended away from its supposed location, not closer to it, and there is no evidence that the office was damaged in the attack. There is no reasonable explanation of why both the second and third shells would land significantly short of the first shell if the first shell was directed at the Territorial Defence office. The Trial Chamber does not see any merit in the other Defence submissions, which, as noted above, are of a general nature.

410. The Trial Chamber thus finds that the fourth 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.

     (e) Sarajevo Airport

411. The Trial Chamber considers the situation at the airport to be complex. The SRK had given up the airport to the UN for the delivery of humanitarian supplies and related purposes. UNPROFOR was therefore to control the use of the airport. UNPROFOR used it also to communicate with the rest of the world¹⁴⁴⁴ and as a meeting point for brokering negotiations among the belligerents.¹⁴⁴⁵ SRK troops were positioned on both sides of the airport runway, especially on the south-east.¹⁴⁴⁶

412. Notwithstanding the airport agreement, the BiH authorities permitted some people to cross the runway, and even issued permits to allow civilians through it.¹⁴⁴⁷ In some periods, between 80 and 300 people each night crossed the runway.¹⁴⁴⁸ ABiH troops dressed as civilians used to cross the runway with military supplies for the city.¹⁴⁴⁹ In fact, the Presidency seemed to allow the use of the airport, inter alia, for military purposes.¹⁴⁵⁰

413. The SRK, therefore, repeatedly complained that, during the night, the airport area was used by people to leave Sarajevo and by the ABiH to allow military personnel and supplies into the city.¹⁴⁵¹ On 3 April 1993, following these protests, an official order was issued by the commander of the SRK 4th Light Artillery Regiment to prevent by use of force any movement across the airport.¹⁴⁵² UNPROFOR battalions entrusted with the implementation of the airport agreement used to patrol the airport at night to stop such crossing:¹⁴⁵³ weapons found were seized and destroyed.¹⁴⁵⁴ However, the patrolling was not very effective; people were still able to cross, and, at the beginning, some people were able to bring weapons into the city due to mistakes by UNPROFOR or tricks devised by the ABiH.¹⁴⁵⁵

414. Regardless of the patrolling by UNPROFOR, General Abdel-Razek, UNPROFOR Commander of Sector Sarajevo from August 1992 to February 1993, stated that “every day we received reports, telling us that a lady was killed with her child while she was trying to cross.”¹⁴⁵⁶ In particular, between November 1992 and March 1993,¹⁴⁵⁷ many civilians were killed or injured each night on the airport’s runway.¹⁴⁵⁸ UN personnel were also victims of fire.¹⁴⁵⁹ On some occasions, at least up to January 1994,¹⁴⁶⁰ the airport was also shelled, both from SRK- and from ABiH-controlled territory.¹⁴⁶¹

415. The Trial Chamber is convinced by the evidence that SRK soldiers shot without knowing whether the movements they saw on the runway were caused by civilians or by soldiers dressed as civilians.¹⁴⁶² UN officials protested to the SRK command against such indiscriminate fire.¹⁴⁶³

416. The Trial Chamber finds that the SRK was well aware that civilians crossed the runway. The Accused stated that he intended to stop such movement “by all means ”; that statement implies that he agreed that attacks would be carried out indiscriminately, thus also against civilians. However, the Prosecution has not presented decisive evidence to identify shooting locations around the airport, to address the issue of visibility of people crossing the runway at night, to show the possible impact of night-vision devices on the ability of the SRK to target specific objects on the runway, or to ascertain the presence or intensity of nearby combat activity.¹⁴⁶⁴ The Trial Chamber is aware that, when there is doubt whether a person is a civilian or a military, that person is not a legitimate military target. Due to the considerations above, however, the Trial Chamber is not able to point to any specific death or injury as representative of the campaign charged in the Indictment. It nevertheless finds the episodes of indiscriminate firing against people crossing the runway relevant to establishing that indiscriminate fire against civilians by SRK forces was an accepted and known fact.

     (f) Brijesko Brdo Area

417. Witnesses testified that, throughout the armed conflict, the residential area around Brijesko brdo Street, presently named Bulbulistan Street and which belongs to the local commune of Marinka Bradovica, Novi Grad municipality,¹⁴⁶⁵ was continuously attacked by shooting and shelling from the SRK side,¹⁴⁶⁶ although it was far from the confrontation lines.¹⁴⁶⁷ Houses in that neighbourhood, situated on a hill named Brijesko brdo and controlled by the ABiH during the conflict,¹⁴⁶⁸ were badly damaged by frequent shelling and shooting.¹⁴⁶⁹

418. Rasema Menzilovic, a resident of that area, testified that she lived in the basement of her house for a long time in order to protect herself from SRK shooting and shelling attacks.¹⁴⁷⁰ She would get up at night to do chores - such as drawing water, tilling land, repairing the roof damaged by shelling – because she feared being targeted during the day.¹⁴⁷¹ She also explained that the fetching of water was dangerous. Residents of the neighbourhood around Brijesko brdo Street, left without running water,¹⁴⁷² fetched water from a well at a spring located about 50 metres from the neighbourhood to the northwest across Brijesko brdo Street,¹⁴⁷³ which was exposed to SRK sniping fire.¹⁴⁷⁴

419. Ramiza Kundo, a neighbour of Menzilovic, also testified that several civilians they knew had been shot by small-arms fire in this part of Brijesko brdo Street when no military activity was going on.¹⁴⁷⁵ Both Kundo and Menzilovic testified that in July 1993,¹⁴⁷⁶ a woman, Hasiba (called Haska) Dudevic, was shot while heading towards the well;¹⁴⁷⁷ they also gave the example of Muharem Mesanovic shot dead in late 1993 or early 1994,¹⁴⁷⁸ and of Mustafa Poljo shot in 1994.¹⁴⁷⁹

420. The Prosecution alleges two specific incidents of targeting of civilians as representative of small arm fire against civilians in that area in Schedule 1 of the Indictment, under numbers 16 and 17. The examination of these incidents below expresses the views of the Majority. Judge Nieto-Navia is dissenting and expresses his views on these incidents in a dissenting and separate opinion appended to this Judgement.

     (i) Scheduled Sniping Incident 16

421. On 2 November 1993, at around 4 pm, Ramiza Kundo, 38 year old at that time, and Rasema Menzilovic, were hurrying back with full 10-litre canister in each hand along Brijesko Brdo Street from a well located about 50 metres away from Menzilovi c’s house.¹⁴⁸⁰ While crossing the street, which was on a gentle slope going downward, both witnesses heard a shot.¹⁴⁸¹ Ramiza Kundo testified that at first “I thought it was a stone, a pebble, which had hit me”, but then realized that it was a bullet.¹⁴⁸² The calf of her left leg started to bleed profusely.¹⁴⁸³

422. In her written statement, Ramiza Kundo stated that the shot had come from the “train depot.”¹⁴⁸⁴ Her husband, Hilmo Kundo stated in a written statement that “[she was] looking in the direction of enemy positions in Rajlovac, when she was shot from the direction of the depot.” The official note of the Novi Grad Public Security Station repeats that Ramiza Kundo was wounded by a shot fired from the direction of the “Rajlovac depot”.¹⁴⁸⁵ Ramiza Kundo testified however that she heard the shot coming from “below, where the Serbian lines were”, maybe to her right.¹⁴⁸⁶ She elaborated that “it was the Serbian field. I don’t know exactly what it was called. Bacici or something like that. Serbian field, Srpska pole. There was a railway station somewhere there”.¹⁴⁸⁷ Menzilovic testified that she heard the sound of the shot coming from the direction of Polje, emphasising that “it was always from the direction of Polje since from the other side, as I have already said, nobody could ever see us. We were always visible only from Polje”.¹⁴⁸⁸ She added that one night, she was tilling land further down from her house when she saw the muzzle flashes of gunfire from an isolated house with a four-sided roof there,¹⁴⁸⁹ and referred to frequent “sniper” shots fired at her house from the field area.¹⁴⁹⁰ Karavelic also indicated that area as a regular source of fire by the SRK.¹⁴⁹¹

423. The Defence claims that the direction of fire of the bullet which hit Ramiza Kundo is not established,¹⁴⁹² and that Ramiza Kundo could not have been hit in her left leg by a bullet from her right.¹⁴⁹³ It also argues that “the [confrontation] lines held by the warring sides in that part of the battlefield were so deviated that the projectile could have been fired from the ABiH positions.”¹⁴⁹⁴ The Defence witness Sinisa Krsman testified that the “depot” was a service facility for train maintenance located approximately one kilometer from the site of the incidents to the west¹⁴⁹⁵ and denied that the shots could have come from there, claiming that there was no line of sight from the depot to the site of the incident.¹⁴⁹⁶ Krsman added that the field area (“Polje”) was an abandoned area where nobody lived during the armed conflict¹⁴⁹⁷ because being down below the hill of Brijesko Brdo was geographically disadvantaged and therefore indefensible¹⁴⁹⁸and that the SRK was stationed at least 150 metres behind the isolated house with the four -sided roof presented as a sniper nest by Menzilovic.¹⁴⁹⁹

424. The Majority understands the testimonies of witnesses Menzilovic and Ramiza Kundo to mean that the area between the station depot and Bacici, including Brije sce, was actually regarded as a single area by people living uphill. The two witnesses to the incident clearly referred to the “Polje” area; with this expression, Menzilovi c clearly intended to point to the area around the isolated house close to the sign “Brijesce” on the maps tendered into evidence.

425. According to Krsman and Karavelic, the ABiH line was located between 300 to 350 metres from the site of the incident.¹⁵⁰⁰ Karavelic marked the confrontation lines on a map which presents most parts of the field area, comprising the neighbourhoods of Brijesce and Bacici, as SRK-held territory as of November 1993.¹⁵⁰¹ Despite the evidence of Krsman, who stated that the SRK line was located approximately 150 metres behind the alleged SRK firing position of the isolated house with the four -sided roof in the field area, the Majority is of the opinion that the operational capability of the SRK to shoot on the area of the incident was not impeded by the difference in the location of the SRK in the two descriptions of Krsman and Karavelic. This is true especially taking into account the location of the SRK line, next to the house owned by Bo‘ic as presented by Krsman.¹⁵⁰² The Majority is satisfied beyond reasonable doubt that the ABiH confrontation line was between 300 and 400 metres away from the site of the incident.¹⁵⁰³

426. The Defence also claims that the difference in altitude between the location indicated by a red circle on D1844 and the place where Ramiza Kundo was hit would exclude the possibility of direct shooting by an infantry weapon.¹⁵⁰⁴ The Majority rejects that argument. It estimates the difference in altitude between the field area and the spot where Ramiza Kundo was hit to be between 40 and 80 metres, most probably around 60 metres.¹⁵⁰⁵ Such a difference of altitude would, therefore, not prevent direct shots being fired from at least a couple of hundred meters by an infantry weapon towards the location where the victim was hit (a slope) and with an angle sufficient to hit her in the calf. In light of the above evidence, the Majority finds that Ramiza Kundo was wounded by a shot fired from the direction of “Polje,” a field in the area of Bacici and Brijesce.

427. Bearing this finding in mind, the Majority now turns to examine whether the shot was fired from SRK-controlled territory as alleged by the Prosecution. Photographs of the site of the incident establish that there was no line of sight to nearby ABiH-controlled areas identified by both defence and prosecution witnesses. This leads the Majority to reject the suggestion by the Defence that the shot may have been fired from ABiH positions.¹⁵⁰⁶ Furthermore, the Majority deems it unreasonable to suggest that the ABiH had any reason to fire a single bullet against a civilian walking in ABiH-controlled territory. The Majority also rejects the Defence’s suggestion that the victim could not have been hit from the right on her left leg; obviously a person walking places one leg before the other, exposing both legs also to the right. From the evidence in the Trial Record, the Majority finds that Ramiza Kundo was injured by a bullet fired from SRK-held territory in the field area, where Brijesce and Bacici are.

428. Ramiza Kundo acknowledged that from 1992 to 1994 there was fighting and gunfire in the area where she lived¹⁵⁰⁷ but that there were no soldiers, military equipment or military activity in the vicinity at the time of the incident.¹⁵⁰⁸ Given the circumstances of the incident, the occurrence of similar incidents in the vicinity, the positions of the warring parties beneath the hill of Brijesko brdo, and evidence that there was no on-going combat activity in the relevant area at the time of the incident, the Majority does not accept the Defence’s suggestion that the victim was hit by a stray bullet or a ricochet as a consequence of a regular combat activity.¹⁵⁰⁹

429. The Majority finds that, regardless of the exact colour in which Ramiza Kundo was dressed - she was wearing a long colourful skirt (red or violet),¹⁵¹⁰ a shirt and a pullover -¹⁵¹¹ and in view of the activity in which she was engaged at the time of the incident, the perpetrator, or a reasonable person in those circumstances, should not have ignored the probability of Ramiza Kundo being a civilian. The Majority therefore concludes that the victim was targeted from the SRK-controlled area, if not with the intention to attack her as a civilian, then at least in full awareness of the high risk that the target was a civilian.

430. Menzilovic recounted, as follows, a similar incident, which occurred later in November 1993 to another neighbour of hers, Fatima Osmanovic.

     (ii) Scheduled Sniping Incident 17

431. Menzilovic testified that on or around 9 November 1993,¹⁵¹² approximately at noon,¹⁵¹³ she was going towards the well with one of her neighbours, Hata Pedisa, when she saw Fatima Osmanovic returning home from the well.¹⁵¹⁴ Menzilovic and Hata Pedisa were waiting for Osmanovic to cross Brijesko Brdo Street,¹⁵¹⁵ when, one or two metres away from the site where Ramiza Kundo the victim of the incident 16 had been shot,¹⁵¹⁶ Blood started to cover Osmanovic’s face.¹⁵¹⁷ She was injured in her cheek.¹⁵¹⁸ No precise evidence was presented in relation to the exact nature of the wound but the Majority deems that the precise nature of the wound is not an essential element in the determination of this incident nor is the apparent inconsistency with regard to the day of the incident stated in the Indictment and that stated by the witnesses in court. The Majority is satisfied that, on or around 9 November 1993, at around noon, Osmanovic, aged 44, was shot in her cheek on Brijesko Brdo Street while returning home from the well.

432. The Majority relies on the description of the events of incident 16, which bear a striking resemblance to those related by Menzilovic and support the allegations by witnesses that deliberate shooting of civilians from SRK-controlled territory was common in the area, at least as of November 1993. In particular, Menzilovic and Karavelic testified to the SRK firing position in the field area in a general context. Krsman provided an overall explanation of the topographic features of the area and the positions of the warring parties there. The overall evaluation of the evidence with regard to these two scheduled incidents 16 and 17, and of other strikingly similar events, indicating a pattern of conduct in the area, does not leave reasonable doubts as to the source of fire.

433. Menzilovic recalled that at the time of incident, there were no soldiers, military equipment or military activity in the vicinity.¹⁵¹⁹ Accounts reported above with respect to the distance from the confrontation lines and military objectives, as well as to the military presence and combat activity in the vicinity, apply to this incident. The Majority finds that the manner in which Osmanovic was dressed – she was wearing a skirt, a T-shirt and a sweater –¹⁵²⁰ and the activity in which she was engaged at the time of the incident clearly reflected her civilian status. Taking into consideration all circumstances, the Majority finds that the perpetrator, or a reasonable person in those circumstances, should not have ignored the probability that Fatima Osmanovic was a civilian. The Majority therefore concludes that the victim was targeted from the SRK-controlled area, if not with the intention to attack her as a civilian, then at least in full awareness of the high risk that the target was a civilian.

     (g) Stari Grad Area

434. The Trial Record contains evidence from a variety of sources indicating that indiscriminate shelling in the general area of the old city centre known as Stari Grad harmed civilians.

     (i) Old City Centre

435. Harding, a UNMO in Sarajevo from July 1992 until January 1993,¹⁵²¹ remembered that on 31 October 1992 he was in a building occupied by UN observers ¹⁵²² located in Stari Grad,¹⁵²³ when a large number of shells started falling on the whole city.¹⁵²⁴ One of these shells landed near Harding's position, injuring five civilians whom the witness subsequently treated.¹⁵²⁵ Harding believed that the shelling taking place in the city that day "by the sheer amount of fire... could only have come from outside the city, that being the Bosnian Serb army."¹⁵²⁶ With respect to another instance of shelling, an UNPROFOR report indicated that UN representatives had recorded over 400 artillery and mortar impacts on a single day in 1993 in the general area of Stari Grad.¹⁵²⁷ The authors of the report concluded that “There is no doubt that civilians [in that area] were deliberately targeted … [because of the] unusually high volume of fire [there], which would seem to have no military value.”¹⁵²⁸ Another UNPROFOR report indicated that an 82 mm mortar shell had exploded, killing two persons and injuring 6 others, in 1993 in an area neighbouring Stari Grad.¹⁵²⁹ UN representatives conducted a crater analysis after the incident and determined that the shell had arrived from the northeast; they also concluded that it was possible “that the shell was shot from a Bosnian position [of the ABiH]. On the contrary, it is also probaby from a Serbian position [of the SRK], because of the superior nature of the mortar – 3,000 m.”¹⁵³⁰

436. Local residents of Sarajevo confirmed that shells landed in the general area of Stari Grad during the conflict, harming civilians. On 15 January 1993, Witness P, a resident of Stari Grad,¹⁵³¹ observed a shell landing on a brewery in an area neighbouring Stari Grad known as Bistrik,¹⁵³² killing 15 persons and seriously injuring two children.¹⁵³³ She testified that Stari Grad was shelled frequently from firing positions she saw at Mount Trebevic and Borije,¹⁵³⁴ which is located northeast of Stari Grad.¹⁵³⁵ Around noon on 14 October 1993, Witness AF witnessed the shelling of one of his relatives’ house in Vratnik, an area neighbouring Stari Grad,¹⁵³⁶ which seriously injured his wife.¹⁵³⁷ Witness AF added that Vratnik was shelled frequently from the direction of Borije.¹⁵³⁸ Fatima Zaimovic, head nurse in the children’s surgery department of Kosevo hospital,¹⁵³⁹ remembered treating children who had been injured on 9 and 10 November 1993 during shelling incidents,¹⁵⁴⁰ one of which took place at “Otoka, in Nemanjina Street, in Vase Miskina Street.”¹⁵⁴¹ She testified about the effect of sniping and shelling of the hospital where they were treated: “They were terribly afraid of the shells and the shooting. And that was probably because they had experienced the wounding, and so when they heard those terrible sounds of shooting and explosions, this had a terrible effect on the children ”.¹⁵⁴² Mesud Jusufovic, who served as a firefighter in Sarajevo during the conflict,¹⁵⁴³ remembered distributing water in front of a fire brigade station in Vratnik in 1993 when “a shell fell and five or six people were injured” and a young woman who was a volunteer firefighter was killed.¹⁵⁴⁴

437. The Prosecution alleges shelling incident 5 in Schedule 2 of the Indictment as representative of indiscriminate or deliberate attacks on civilians in Stari Grad from SRK-controlled territory. This incident distinguishes itself from other shelling incidents alleged by the Prosecution as representative of a campaign of fire on civilians because of the considerable amount of technical evidence adduced at trial, which the Trial Chamber considers in some detail.

     (ii) Scheduled Shelling 5¹⁵⁴⁵

     a. Description of the Incident

438. Witnesses testified that on 5 February 1994, around noon, many people were shopping in the Markale open-air market,¹⁵⁴⁶ when a single explosion shook the area.¹⁵⁴⁷ Ezrema Boskailo, a resident of Sarajevo,¹⁵⁴⁸ recounted that she was shopping in the centre of the market that day,¹⁵⁴⁹ when an explosion knocked her over.¹⁵⁵⁰ Residents and by-passers in the area also testified about hearing a loud explosion,¹⁵⁵¹ which injured and killed a number of people present at the market.¹⁵⁵² People present in the market transported victims of the blast to local hospitals,¹⁵⁵³ and the evacuation of the victims was completed by 12:40 hours.¹⁵⁵⁴

439. Edin Suljic, on behalf of a local investigative team set up to investigate the incident, and Afzaal Niaz, on behalf of the UN, visited the hospitals and the morgue where the victims of the blast were taken.¹⁵⁵⁵ They each counted over 60 persons killed and over 140 persons injured.¹⁵⁵⁶

     b. Investigations of the Causes of the Incident

440. Investigations to determine the cause of the incident were conducted by local investigators and UN representatives. Representatives of the Bosnian Serb army denied that they were responsible for the explosion¹⁵⁵⁷ and threatened to end their cooperation with UNPROFOR and humanitarian organisations if a joint military commission was not formed “composed of representatives of UNPROFOR, the Army of the Republic of Srpska and the so-called Army of ABiH that will, not later than at 8:00 hours on February 06, 1994, under the protection of UNPROFOR, start to establish the ballistic and all other circumstances that caused the incident and discover the side that committed the crime”. That commission was not established. According to the VRS, “since the Moslem side has refused to participate in formation and work of the joint commission, the General Staff of the Army of the Republik of Sprska is certain that they planned and realized this horrible massacre”.¹⁵⁵⁸ According to Bukva, an SRK intelligence officer, the commission was not set up because the security of Serb officers would have not been guaranteed.¹⁵⁵⁹ The Defence solicited three shelling experts to review the results of the investigations conducted by the local and UN investigative teams.¹⁵⁶⁰

     i. Local Investigative Team

441. An investigating magistrate led a local investigative team that arrived on the market at 13:20 hours on the day of the incident.¹⁵⁶¹ The investigations lasted approximately a week,¹⁵⁶² and resulted in a comprehensive official report produced on 17 February 1994 and incorporating separate reports by expert members, including ballistic experts Mirza Sabljica, Hamdija Cavcic and Berko Zecevic.¹⁵⁶³

     Sabljica Ballistic Report

442. Mirza Sabljica and Hamdjia Cavcic investigated the cause of the explosion, the direction of origin, and the calibre of the device.¹⁵⁶⁴ In their report dated 8 February 1994 (“Sabljica Ballistic Report”),¹⁵⁶⁵ they described the crater found on 5 February 1994 and its exact location in the market.¹⁵⁶⁶ They measured the crater to be 9 centimetres deep.¹⁵⁶⁷ They also described that around the crater, the damage done to the asphalt formed an ellipse of 56 centimetres by 26 centimetres,¹⁵⁶⁸ and that inside the crater, a tail-fin was embedded in the ground.¹⁵⁶⁹ After the area around the tail-fin was cleaned, the authors of the Sabljica Ballistic Report drew a line between the two most distant points on the ellipse and determined that the projectile had arrived from an east of north bearing of 18 degrees “with [+/-] 5 [degree] tolerance”.¹⁵⁷⁰ UN representatives arrived, extracted the tail-fin which could be seen in the video P2279A deeply embedded into the ground, and gave it to the local investigation team.¹⁵⁷¹ Shell fragments or shrapnel were also found at the market and were given to the local authorities so that they could be photographed and analyzed.¹⁵⁷² Sabljica testified that based on the tail-fin and shrapnel recovered on the site, Cavcic and himself concluded that only a 120 mm mortar shell could have caused the explosion at Markale market.¹⁵⁷³ In view of the depth of the crater, the damage caused by the shrapnel to the surroundings, and the presence of the tail-fin embedded into the ground of the market, they also determined that the 120 mm mortar shell had exploded upon contact with the asphalt surface of the market.¹⁵⁷⁴

     Zecevic Ballistic Report

443. On 6 February 1994, other experts on artillery and explosives joined the local team to determine the origin of fire.¹⁵⁷⁵ On arrival at the market at 12:30 hours,¹⁵⁷⁶ the market had been cleaned of debris.¹⁵⁷⁷ One of these experts, Berko Zecevic, confirmed that their findings on the origin of fire appear in a report dated 7 February 1994 (“Zecevic Ballistic Report”).¹⁵⁷⁸ This report also concludes that the incident “was caused by a 120mm M62P3 mortar projectile” of 12.6 kilogrammes, which had exploded on impact with the ground and had come from a northerly direction with a bearing of approximately¹⁵⁷⁹ 18 degrees.¹⁵⁸⁰ Zecevic testified that the ground at the site of the explosion consisted of a thin layer of asphalt on top of a mixture of sand and “small rocks, gravel, small stones”.¹⁵⁸¹ The authors of the Zecevic Ballistic Report estimated, by examining video footage and photographs of the market place taken by local authorities, that the part of the tail-fin where the cartridge of the basic charge could be seen formed a 20-30 degree angle with the surface,¹⁵⁸² and that, starting from the upper layer of the surface of the asphalt, the tail- fin had penetrated the ground to a depth of between 200 to 250 mm, depending on which side of the hole was measured.¹⁵⁸³ Zecevic and his colleagues proceeded to “the reconstruction of the position of the stabiliser [which] allowed the angle of its front to be measured in relation to the surface, which was approximately 30º so the mortar projectile formed an approximate 60º angle with the surface” with a margin of error of 5 degrees.¹⁵⁸⁴ They observed that “the way the fragments were dispersed is typical for the explosion of a projectile with an angle of descent of 60º with the surface”.¹⁵⁸⁵ Zecevic testified that this approximate angle was correct because if it had been lower, the mortar shell would have collided in flight with the roof of a kiosk located near the shell’s point of impact.¹⁵⁸⁶ Based on the angle determined by Zecevic and his colleagues (55-65 degrees) and on the firing tables for 120 mm M6253 mortar shells, they determined the possible firing ranges of the mortar shell to have been between 1,640 metres (if fired with the initial (zero) charge and with one additional charge) and 6,546 metres (on 0 +6 charges) and the “difference in elevation between the potential firing location and the centre of the explosion is 400 metres”.¹⁵⁸⁷ From this determination, the experts concluded that the mortar shell could have been fired from six locations along the northeastern direction they had determined.¹⁵⁸⁸ A cone drawn on a map attached to the Zecevic Ballistic Report shows the possible origins of fire, including the area of Sedrenik at about two kilometres from Markale market, the SRK-controlled territory and higher up in the hills of the area of Mrkovici at about four kilometres from the market.¹⁵⁸⁹ The report situates one of the six possible firing locations in ABiH-controlled territory and the other five in SRK-controlled territory.¹⁵⁹⁰

444. Zecevic refined this former determination during his testimony. He testified that, several years after the incident, he examined a report by Dr. Miroljub Vukasinovi c of the Military Institute of Belgrade, according to whom the tail-fin of a 120 mm mortar shell begins to lodge itself into the ground after an explosion if the minimum impact speed of the shell is 154 metres per second (“m/s”), the speed necessary for the tail-fin to overcome the pushback effect of the detonation.¹⁵⁹¹ Zecevic compared this with measures made by American scientists, according to whom the minimum impact velocity of the shell must be approximately 170 metres per second, plus or minus 20 metres per second.¹⁵⁹² Zecevic calculated that for a tail-fin to be embedded into the ground to a depth of 250 mm, the tail-fin must have a residual speed after explosion of approximately 60 metres per second, plus or minus 10 metres per second.¹⁵⁹³ He reasoned, using the minimum values, that for a tail-fin to be embedded into the ground at a depth of 250 mm, its shell must have had a minimum impact speed of approximately 200 metres per second (150 + 50 metres per second).¹⁵⁹⁴ Zecevic then took into account that a 120 mm M62P3 mortar shell,¹⁵⁹⁵ with one increment charge has an impact velocity of 110-120 metres per second depending on the angle of descent of the shell¹⁵⁹⁶ while if the shell is launched with 6 increment charges it has an initial velocity of 310 metres per second, the impact velocity being lesser.¹⁵⁹⁷ Zecevic concluded that the 120 mm mortar shell, in order to gain the required speed of 200 metres per second or more on impact, would have had to be fired with a minimum of four increment charges.¹⁵⁹⁸ Excluding firing at 0+1, 0+2, or 0+3 increment charges, Zecevic reviewed the conclusions of the Zecevic Ballistic Report and testified that the firing range was between 4,900 and 6,000 metres from the market.¹⁵⁹⁹

     ii. UN Investigative Teams

445. The UNMO¹⁶⁰⁰ and the members of the UN Frebat [French Battalion] 4 team who arrived at the site of the incident on 5 February 1994¹⁶⁰¹ observed that the crater showed no signs of having been tampered with.¹⁶⁰² The UN team “chip[ped] away at the asphalt lip around the mouth of the crater, and enlarge[d] the actual hole formed by the penetration of the tail-fin”¹⁶⁰³ to extract the tail-fin from the ground with the help of a knife.¹⁶⁰⁴ The UN team determined that the tail-fin belonged to a 120 mm mortar shell¹⁶⁰⁵ and turned it over to Besic, one of the local criminal investigators.¹⁶⁰⁶ The UN team conducted a first analysis of the crater at around 14:00 hours and determined a direction of the shell to be of a bearing of 620 mils (35 degrees).¹⁶⁰⁷ At 15:00 hours, another UN staff member, Captain Verdy, conducted a second crater analysis. As it transpired later, he made a mathematical error which led to flawed results.¹⁶⁰⁸ At 16:30 hours, another UN staff member, Major John Russell, conducted a third crater analysis, during which he measured the direction of the shell’s path to have been 450 mils (25 degrees),¹⁶⁰⁹ and its angle of descent to be 1,200-1,300 mils (67 to 73 degrees).¹⁶¹⁰

446. On 11 February 1994, another UN team was formed “To be complementary to earlier investigations conducted by the [United Nations], and […] be confined to the crater analysis and related technical aspects of the explosion”.¹⁶¹¹ On 11 and 12 February 1994, three of these representatives, Major Sahaisar Khan, Commandant John Hamill, and Captain Jose Grande, each conducted an analysis of the crater at the market and measured the incoming direction of the shell to have been between 320 to 420 mils (18 to 23.6 degrees).¹⁶¹² On 11 February 1994, Khan and Hamill determined its angle of descent: Khan “worked out [an approximate angle of descent] from the approximate location of the [tail-fin] in the crater” to be 1,000-1,100 mils (56 to 62 degrees) and stated that these measures were a guide-line because the analysis took place six days after the explosion.¹⁶¹³ Hamill, placing a stick inside the part of the crater where the tail-fin had been embedded and using a standard artillery protractor and a plumb line, measured the angle formed with the ground to be 950-1,100 mils (53 to 62 degrees) and stated that “it is not possible to be more accurate” because the analysis took place days after the explosion.¹⁶¹⁴ Grande, who undertook his analysis of the crater after Khan and Hamill, did not attempt to measure the angle of descent of the shell because previous investigation teams had told him that the crater had been excavated and slightly enlarged.¹⁶¹⁵

447. On 13 February 1994, another UN staff member, Chief-Sergeant Dubant, examined the crater, which he described as “clean and very sharply defined”.¹⁶¹⁶ He reported that the crater formed an ellipse, one side of it measuring approximately 25 centimetres. He measured the crater to be 11 centimetres deep.¹⁶¹⁷ Dubant did not estimate the angle at which the shell had landed because “this action became impossible since the [crater] had been changed and, more particularly, redug in order to extract the [tail-fin]”.¹⁶¹⁸

448. To supplement their inquiry, the UN investigators considered the accounts of victims, of UN representatives present in Sarajevo on the day of the explosion, and information provided to them by the SRK and the ABiH concerning military equipment and positions of units.¹⁶¹⁹ The report of the UN investigations was submitted on 15 February 1994 (the “UN Report ”¹⁶²⁰). The authors of the report concluded that “the explosion occurred between 12:10 and 12:15 hours on 5 February 1994 into an exceptionally crowded Sarajevo market”, that the “explosion was caused by a conventional factory-produced 120mm high explosive mortar bomb”, which “detonated upon impact with the ground”.¹⁶²¹ Based on their crater analyses, the authors of the UN Report established that the incoming direction of the 120 mm mortar shell “was between 330 to 420 mils” (18. 5 to 23.6 degrees).¹⁶²² Hamill testified that that bearing was consistent with the bearing found in the Sabljica Ballistic Report.¹⁶²³

449. In relation to the origin of fire, the authors of the UN Report noted that the methodologies used by the experts, at the exception of theses of the Frebat 4 team and Verdy, were conventional.¹⁶²⁴ In its conclusions, the UN Report endorsed the range of the shell’s angle of descent on 11 February 1994 found by Khan and Hamill of 950-1100 mils (53-62 degrees),¹⁶²⁵ and emphasised that “To assure accuracy, the angle must be measured when the tail -fin and fuse are in the ground, and this was not done on 5 Feb[ruary 1994].”¹⁶²⁶ The measurement of nearby buildings allowed the authors of the UN Report to conclude that the angle of descent could not have been less than 870 mils (49,15 degrees), allowing the conclusion “that the range to the point of origin of fire based on the full spectrum of trajectories in the firing tables, lies between 300 and 5,551 m from the point of impact”.¹⁶²⁷ The authors of the UN Report concluded that “Accordingly it is assessed that the results measured on 11 Feb[ruary 1994 by Khan and Hamill] are not sufficiently accurate to be used as a basis for a finding” and “to pinpoint a single distance to the source of fire” because “the distance of fire clearly overlaps each side of the confrontation line by 2,000 metres. Both parties are known to have 120mm mortars, and the bombs to go along with them. […] There is insufficient physical evidence to prove that one party or the other fired the mortar bomb. The mortar bomb could have been fired by either side”.¹⁶²⁸

     iii. Expert Report of the Defence

450. The Vilicic Shelling Report rejected the conclusions of the Sabljica Ballistic Report, the Zecevic Ballistic Report, and the UN Report that the device which exploded at the market was a 120 mm mortar shell.¹⁶²⁹ The authors of the Vilicic Shelling Report submitted that the pictures of shrapnel allegedly recovered after the incident did not resemble the remnants from a single type of explosive device and that the wounds sustained by the victims did not appear to have been caused by a 120 mm shell.¹⁶³⁰

451. Vilicic testified that reinserting the tailfin into the ground, as Zecevic did, was an unreliable method to measure the angle of descent.¹⁶³¹ However, using the measurements by Sabljica of the elliptical imprints left around the crater and having examined the photographs of it, Vilicic trigonometrically calculated the angle of descent of the shell to be 62.5° for a 120 mm shell when fired at a 0+1 charge and 55.6° when fired at a 0+6 charge. The Trial Chamber notes that this is within the range measured by Zecevic (55-65°).¹⁶³²

452. The authors of the Vilicic Shelling Report submitted that it was technically impossible for the tail-fin of a 120 mm mortar shell to be embedded to a depth of 200 to 250 mm in the ground of Markale market, as claimed by the Zecevic Ballistic Report.¹⁶³³ They computed that for a tail-fin to overcome the pushback effect and begin to lodge itself in the ground, the shell must travel at a speed of at least 154 metres per second before it detonates.¹⁶³⁴ Using equations developed by the Sandia National Laboratories in the U.S. in 1997 and 1998, they calculated that for the tail-fin to embed itself into concrete to a depth of 180 mm, the tail -fin must achieve a minimal speed of 374.8 metres per second.¹⁶³⁵ They computed that the tail-fin recovered at Markale market had to achieve a speed of at least 154 + 374.8 or 528.8 metres per second prior to impact, to both overcome the force of the explosion and embed itself to a depth of 180 mm in the ground, and stated that no known mortar could attain such a speed.¹⁶³⁶ Having arrived at this conclusion, they did not proceed to determine the direction or range of fire of the shell.¹⁶³⁷

453. During his testimony, Vilicic admitted that the calculations provided in the Vilicic Shelling Report were made on the assumption that the ground of the market consisted entirely of concrete.¹⁶³⁸ He testified that if, instead, the ground consisted of a thin layer of asphalt resting on gravel stone,¹⁶³⁹ and using tables based on the “Berezansky” mathematical formula,¹⁶⁴⁰ the tail-fin of a 120 mm mortar shell must achieve a speed of 114.4 metres per second to penetrate the gravel stone to a depth of 200 mm plus 154 metres per second to overcome the pushback effect of the detonation (=268.8 m/s).¹⁶⁴¹ Vilicic testified that if a mortar shell is fired from an altitude 500 metres above its intended target, it can achieve an impact velocity of over 260 metres per second.¹⁶⁴²

     c. Non-technical evidence concerning the source of fire

454. Witness AF, a resident of Sarajevo, testified that on 5 February 1994 at about 12:00-12:30 hours, he was in the garden of his mother’s house located approximately 200 metres below Spicasta Stijena, an SRK position northeast of Sarajevo, when he heard the sound of a heavy weapon like a mortar being fired from behind Spicata Stijena, at Mrkovici,¹⁶⁴³ and then a detonation in the city.¹⁶⁴⁴ At the time of the incident, Witness AK-1 was at her house in Sedrenik, located approximately 500 metres south to the confrontation lines, when she heard firing from the direction of Mrkovici.¹⁶⁴⁵ Suljic testified that after it was determined that the shell was launched from the direction north north-east, he conducted interviews with persons living along the flight path of the shell and these interviewees confirmed that the shell was fired from the direction of Mrkovici.¹⁶⁴⁶ Weapon specialists indicated that the noise made by the firing of a mortar can be used to determine the approximate direction of fire.¹⁶⁴⁷ Hamill testified that an observer hearing the sound of a mortar being fired “will not [be able] to determine a location, just [a] direction.”¹⁶⁴⁸

455. The Trial Chamber notes that a close examination of the confrontation lines marked on maps in evidence are consistent as to the position of the confrontation lines.¹⁶⁴⁹ The distance between Markale market and the SRK confrontation line to the north-north east at the time of the incident was approximately 2,600 metres.¹⁶⁵⁰ The distance from Markale market to the ABiH confrontation line along the alleged direction of the shell’s course was in the order of 2,300 metres at the time of the incident.¹⁶⁵¹ A line drawn from the site of the incident running due north-north east would cut through the western tip of Sedrenik, emerge into the SRK-controlled territory through the eastern tip of Pasino Brdo, and cut through Mrkovici hill.¹⁶⁵²

     d. Presence of Military Targets in the Area of Markale Market

456. Vahid Karavelic, commander of the 1st ABiH Corps, marked a map where the nearest location of a brigade headquarters appeared approximately 300 metres away from the market.¹⁶⁵³ Jacques Kolp, the UNPROFOR liaison officer at the time of the incident, testified that there was no particular military objective in the area of the Markale market.¹⁶⁵⁴ Besic and Boskailo both testified that the “December 22” building adjacent to the market housed a factory which manufactured and sold uniforms for the army or police. Besic emphasised though that at the time of the incident uniforms were not being manufactured there because there was no electricity and Boskailo testified that a friend of hers worked at the shop of the “December 22” building.¹⁶⁵⁵

457. Hamill testified that due to the lack of adjusting rounds it would have been an extremely “lucky shot” for the mortar-launching team if it had hit the target that it was aiming at first time around and thus it was a “fluke” that the marketplace, if targeted, was hit.¹⁶⁵⁶ The Defence experts stated in the Vilicic Shelling Report that the party responsible for firing the shell at Markale market could not have intended to hit Markale market since the theory of probability predicts that the likelihood of hitting a target the size of the market by firing a 120 mm mortar shell from a distance is very low, even assuming ideal firing conditions.¹⁶⁵⁷

458. According to Witness AD, who testified to his experience in targeting the Breza market, the market place was successfully targeted by firing two shells from two different launchers.¹⁶⁵⁸

459. The UN Report includes an “increp” (incoming report) which indicates that between 05:30-05:35 hours in the morning of 5 February 1994, four mortar rounds were fired into the grid square beside the Markale area.¹⁶⁵⁹ Besic and Travljanin, who operated a shop in the market, said that about 20 days before the incident, a shell had hit the top of the “December 22” building. ¹⁶⁶⁰ Niaz, UNMO in Sarajevo from October 1993 to March 1994, testified that between 2 October 1993 and 5 February 1994, about 10-12 mortars fell around Markale market and that most of them were of a 120 mm calibre and originated from the general direction of Sedrenik.¹⁶⁶¹

460. The UN Report reveals that the UNMOs spoken to in February 1994, indicated that they had had no access to the northeast of the city since October 1993.¹⁶⁶² UN representatives visited two 120 mm mortar positions held by the ABiH on 9 February 1994. A representative of the SRK, Colonel Cvetkovic, confirmed to Hamill that there were a number of 120-mm mortars in Mrkovici along the estimated line of fire to the north-northeast of Markale.¹⁶⁶³ To the authors of the UN Report, Colonel Cvetkovic “said specifically that [the SRK] had not fired that particular round; however, he also said that in the previous year, [the SRK] had fired 30 to 40,000 rounds into the city and [why the authors of the UN Report] were so concerned about one round when [the SRK] had fired so many”.¹⁶⁶⁴

     e. Arguments of the Parties

461. The Prosecution submits that the SRK fired a 120 mm¹⁶⁶⁵ mortar shell from the northeastern hilly region of Mrkovici into Markale market,¹⁶⁶⁶ and that there was no significant military facility or activity in the market.¹⁶⁶⁷

462. The Defence does not deny that an explosion took place at the market on 5 February 1994,¹⁶⁶⁸ but argues that there is insufficient reliable evidence to conclude that a 120mm mortar shell caused the incident, especially so because the Defence could not inspect the shrapnel and the tail-fin found at the site of the incident.¹⁶⁶⁹ The Defence argues, inter alia, that Zecevic, Vilicic, and Hamill each determined a similar approximate angle of descent, but it is necessary to determine what was the exact angle of descent, which could not be done because the crater and the tunnel caused by the shell had been disturbed.¹⁶⁷⁰ The Defence submits that “it is almost impossible to reach, with a single mortar fire, a set objective, and this even more so as it is small”.¹⁶⁷¹ Furthermore, the Defence contends that even if it is assumed that a 120 mm mortar shell exploded at the market, the possibility that the shell was fired from within the territory controlled by the ABiH cannot be ruled out.¹⁶⁷² It argues that the ABiH also possessed 120 mm mortars and that technical analysis reveals that the shell responsible for the explosion could have been fired from within ABiH-controlled territory¹⁶⁷³ and adds that certain units of the ABiH were psychologically capable of firing unto their own territory.¹⁶⁷⁴ It concludes that in doing so, these ABiH units may have sought to attract international sympathy for the Muslim population of Sarajevo.¹⁶⁷⁵

     f. Conclusion on the Cause of the Explosion and Casualties

463. The Trial Chamber finds that a projectile exploded in Markale market on 5 February 1994 between 12:00-12:30 hours. Suljic, on behalf of the local investigative team, and Niaz, on behalf of the UN, visited the hospitals and the morgue where the victims of the blast were taken. They each counted over 60 persons killed and over 140 persons injured. Both the local and UN investigation teams concluded, after having inspected the tail fin, the recovered shrapnel, and the traces left on the ground (as reflected in the Sabljica Ballistic Report, the Zecevic Ballistic Report, and the UN Report) that the explosion at Markale market was caused by a 120 mm mortar shell which exploded upon contact with the ground. The Defence claims that it is not proven that a 120 millimetres shell exploded at Markale on 5 February 1994 because it could not examine the shrapnel and the tail-fin. The Trial Chamber notes however that the Defence inspected the tail-fin and, in view of the evidence in the Trial Record, is satisfied beyond reasonable doubt that a 120 mm mortar shell exploded upon contact with the ground in Markale market on 5 February 1994 between 12:00-12:30 hours, killing over 60 persons and injuring over 140 others.

     g. Conclusion on the Source of Fire

464. The following conclusions are that of the Majority. Judge Nieto-Navia expresses his dissenting views on the source of fire and the alleged deliberateness of the attack carried out on 5 February 1994 in Markale market in a separate and dissenting opinion attached to this Judgement.

     i. Direction of Fire

465. Sabljica measured the dimensions of the elliptical imprints caused by the explosion on the ground of Markale market to be 56 centimetres by 26 centimetres. Photographs and sketches tendered into evidence and depicting the crater and the imprints left by the explosion establish the elliptical shape of these imprints. From the dimensions of the ellipse, Sabljica derived the bearing of the mortar shell and concluded that it had been fired from a north north-eastern direction or at a bearing of approximately 18 degrees, with an accuracy of plus or minus 5 degrees. The Zecevic Ballistic Report does not report the dimensions of the imprints left on the ground but does point to a similar bearing of approximately north north-east. UN representatives (Grande, Hamill, Khan) found a similar bearing after examining the traces on the ground. The UN representative Dubant reported the dimensions of the imprints of the explosion but one of the dimensions of the ellipse is illegible. However, Dubant also established the same bearing as Sabljica, Zecevic, Hamill, Khan, and Grande. The Frebat 4 team, Verdy and Russell measured the bearing of the shell, but the UN Report only endorsed the conclusions reached by Hamill, Khan, Grande, and Dubant that the mortar shell had been fired from the direction north-northeast of Markale market, at a bearing of 18.5 to 23.6 degrees. The Chamber rejects the measurements of Frebat 4 team ( 620 mils) and Verdy (800-1000 mils) on the same basis as the UN report rejects them : they are inherently inaccurate and Verdy made a mathematical error. The measurements of Russell (450 mils) has been considered in the UN report as among the eight analysis done in a conventional manner. The Majority understands however that because in its conclusion, the UN Report (p. 12/46) adopted a bearing outside the range determined by Russell, it implicitly rejected that estimated bearing of 330-420 mils. Non-technical evidence in relation to the direction of fire of the mortar shell was also adduced. Suljic testified that he interviewed persons living along the shell’s estimated flight path, who told him that seconds before the Markale market incident, they heard a shell coming from the northeastern direction. The Majority of the Trial Chamber is satisfied beyond reasonable doubt that the 120 mm mortar shell that exploded in Markale market on 5 February 1994 was fired from the direction north northeast of the market or at a bearing of approximately 18 degrees.

     ii. Range of Fire Related to the Angle of Descent

466. Following a variety of methods, several investigators and experts drew conclusions on the angle of descent of the mortar shell. By measurement and reconstruction of the impact site, and by interpretation of the shrapnel’s impact pattern, most experts were led to the conclusion that the angle of descent was close to 60 degrees.¹⁶⁷⁶

467. The method of repositioning the tail fin in the tunnel and measurements on the tunnel after extraction of the tail fin have been challenged by Vilicic as unreliable. The Majority accepts that the removal of the tail-fin may have caused some disturbance to the shape of the tunnel. However, the shrapnel imprints recognized by experts as typical for an angle of descent of approximately 60 degrees, as well as the range calculated by Vilicic (55.6 to 62.5 degrees) based on measurements of the elliptical imprints by Sabljica, were not influenced by the disturbance of the tunnel and were consonant with the measurements performed by Zecevic, using a quadrant after having replaced the tailfin. The Majority notes that Zecevic has shown awareness of the possible disturbance of the tunnel and has testified that the lower part of the tunnel was relatively well preserved.

468. In its conclusions, the UN report rejected the measurements of the shell’s angle of descent (about 80 degrees) made on 5 February 1994 by Verdy who made a mathematical error, ignored the measures made by Russell (68-73 degrees) on the same day, and gives a range of 950 to 1,100 mils (53.4 to 61.9 degrees), which the report emphasised was determined on 11 February 1994.¹⁶⁷⁷ The Majority understands that the UN Report endorsed the findings made by Khan and Hamill although it cautioned that on the basis of the condition of the crater it was not possible to estimate with any “acceptable degree of accuracy” the angle of descent. On this basis, the Majority rejects the measures of the shell’s angle of descent made by Verdy and Russell and accepts the range determined by Khan and Hamill, which is consistent with the results obtained from calculations based on measurements of earlier investigations.

469. The certain lower limit of the angle of descent is approximately 50 degrees, since at a lesser angle the shell would have collided with the surrounding buildings. On the basis of the evidence presented, the Majority finds that the shell’s angle of descent was approximately 60 degrees. Allowing for a margin of error of 5 degrees, the Majority finds that the angle of descent was not greater than 65 degrees.

470. The Defence claims that an exact angle of descent should be measured in order to determine whether the shell was fired from ABiH- or SRK-controlled territory. The Majority rejects this claim. Every measurement is by its very nature a measurement within a range. The more precise the measurement, the smaller the margin of error. The Majority considers that its finding as to the angle of decent are based not on one measurement method but on calculations based on the measurement of elliptical imprints, the interpretation of the shrapnel pattern by experts, and on other methods reviewed above. The Majority has also taken into consideration that measurements of a lesser precision were already adjusted to reflect the margin of error.

471. The UN report gives a range of 300 to 5,551 meters as the horizontal distance over which the mortar shell could have travelled. This stated range covers all possible angles of firing and charges.

472. The Majority accepts that from the angle of descent alone it is not possible to calculate the distance a shell travelled.¹⁶⁷⁸ The number of charges (1 to 6) used in addition to the initial (0) charge progressively increase the distance a shell travels.¹⁶⁷⁹

473. Thus a 120 mm mortar shell fired across a level field at an 0+1 charge at a steep angle (85°) and also landing at a steep angle (85.3 degrees) travels horizontally no more than 275 metres, whereas the same shell fired at an 0+6 charge at the same launch angle (85 degrees) and a similar angle of descent (86.2 degrees) travels more than 1,160 metres. If fired at a low angle (45 degrees) with a 0+1 charge the shell travels horizontally no more than 1,574 metres (and lands at around 47.3 degrees ), whereas the same shell fired at an 0+6 charge travels more than 6,400 meters (landing at around 55.6 degrees).¹⁶⁸⁰

474. It was not until the trial stage that both Prosecution and Defence experts introduced into their analyses the relation between the tail-fin’s penetration into the ground of the market and the speed of the projectile at impact, an element ignored until then by any investigator or expert.

475. The experts’ reasoning is based upon the following. The depth of penetration of the tail-fin is indicative of the velocity of the shell upon impact. This velocity is of course related to the velocity of the shell at the moment it was fired¹⁶⁸¹. The velocity at firing depends on the number of increment charges used. As indicated above, the greater the velocity, the greater the distance travelled, where the shell’s launch angle is kept constant.

476. The mortar shell used in this case exploded on impact. The experts for both parties agree that the explosion creates a backwards thrust against the tail-fin. If the velocity of the shell, and therefore of the tail-fin, on impact had been 150 m/sec (taking the lowest figure presented to the Trial Chamber), the tail-fin would have just fallen to the ground. If the impact velocity was lesser, the tail -fin would have been propelled backwards. If the impact velocity had been greater, the tail-fin would have overcome the backwards thrust and continued forward.

477. In the present case, the tail-fin continued its trajectory in the forward direction at a speed reduced by 150 m/sec, but still sufficient to embed itself in the ground.¹⁶⁸²

478. Zecevic estimated that the impact velocity of the shell must have been greater than 200 m/s for the tail-fin to have embedded itself at the depth he measured. In Zecevic’s opinion, such a velocity can only be achieved by a shell fired at a 0+4 charge or more. At an angle of descent of 65° the shell would have travelled more than 4.5 kilometres on an 0+4 charge. (As the Majority will explain below, even if, by taking the most favourable figures, an impact speed greater than 200 m/s could be achieved by the lower charge 0 + 3, this does not change the final conclusion.)

479. The Majority pauses here to note that Markale market is at an altitude of approximately 550 metres.¹⁶⁸³ The confrontation line to the north-east of the market was at an altitude of some 400 metres higher. Continuing in the same direction past the confrontation line, the ground further rose to reach heights of up to 500 to 650 metres above the market at around 2-2. 5 kilometres past the line.

480. As discussed above, Vilicic at first stated that for the tail-fin to embed itself at the depth measured by Zecevic, the shell would have needed an impact velocity of 528.8 m/sec. This speed cannot be achieved by any known mortar. Vilicic based this calculation on the assumption that the ground of impact was of solid concrete for the entire depth of the tail-fin’s penetration. Confronted with evidence that the market had a top layer of 2 centimetres of asphalt resting on soil consisting of sand and stones,¹⁶⁸⁴ Vilicic then reviewed his calculations and concluded that penetration of 20 cm by the tail -fin would require an impact velocity for the shell of 268.4 m/sec. A 120 mm mortar shell can achieve a speed of approximately 260 m/s if fired at an 0+6 charge and if the altitude of the impact site is 500 metres below the position from which the shell was fired.¹⁶⁸⁵

481. In brief, both experts, basing themselves on a drop angle of 55 to 65 degrees, concluded that an 0+4 or greater charge would be required to attain the impact velocity necessary for the tail-fin to penetrate the ground to the extent it did. At the 65 degrees angle of descent (which is, according to the Majority, the maximum conceivable angle on the evidence), tables provided by both experts show that the horizontal distance the shell would have travelled comes close to 6,000 metres at charge 0+6 and more than 4,500 meters at charge 0+4.¹⁶⁸⁶

482. It follows that the shell which exploded in Markale market travelled a distance considerably greater than 2,600 metres from the north-east direction, placing the position from which the shell was fired well within SRK-controlled territory.

483. Noting however that the Defence disputes the measure of the depth of penetration of the tail-fin in the ground, submitting that an error in that measure could lead to serious miscalculation of the range of fire, the Majority, out of an abundance of caution, will consider the possibility that the tail-fin penetrated the soil to a lesser depth than the one found by Zecevic and that the shell was fired with an 0+3 increment charge, and therefore that the shell travelled a shorter distance than the one determined above.

484. The Majority recalls briefly that on the day of the incident, Sabljica and Cavcic did not measure the depth of penetration of the tail-fin in the ground but measured a 9-centimetre deep crater. The day after the incident, Zecevic and his colleagues measured the depth of penetration of the tail-fin in the ground from the top asphalt layer to the bottom of the tunnel where the tail-fin had been embedded to be 200 to 250 mm, depending on the side of the hole measured. The UN representatives did not measure the depth of penetration of the tail-fin in the ground giving the reason that such a measurement should have been taken right after the tail-fin was removed from the ground of Markale market. However, Dubant noticed that during his crater examination conducted on 11 February 1994, the crater was still sharply defined and was 11 centimetres deep. There is no evidence in the Trial Record which casts doubt on the measurements made by the local investigative teams. The Majority is convinced that the crater caused by the explosion was approximately 9 centimetres deep and that the depth of the tunnel of the tail-fin and the depth of the crater were together 200-250 mm.

485. The Majority will allow that the shell which struck Markale market impacted on ground consisting of a mixture of soil and stones, thus ignoring the force that would have been required to overcome the higher level of resistance presented by a top layer of asphalt. This favours the Defence case. The Majority also uses the most conservative measurement of the depth of the tail-fin’s penetration, taking the length to be 10 cm. This, again, favours the Defence case.

486. To penetrate 10 cm of ground consisting of soil and stones, the tail-fin would need a post-explosion velocity of 57 m/sec.¹⁶⁸⁷ This gives a shell impact velocity of 150+57=207 m/sec.

487. The firing velocity of a shell on an 0+3 charge is 211 m/s¹⁶⁸⁸. The Majority understands from the evidence of the experts that the impact velocity of a shell fired over a level field is slightly less than its velocity at firing. A shell fired at the 0+3 charge will lose about 30 m/s of its velocity between firing and impact. However, where the altitude of the impact site is less than that of the firing site, the shell will also gain about 30 m/s from having a longer drop trajectory. As always, in choosing these figures¹⁶⁸⁹ the Majority has interpreted the evidence in a fashion favourable to the Defence case.

488. A shell on an 0+3 charge fired over the height differential applicable in this case would have an impact velocity of around 211 m/s. This would be just sufficient for the tail-fin to embed itself to the stipulated depth. But it would also mean that, at a drop angle of 65 degrees, and taking into account a difference in altitude of 400 metres, the shell would have still travelled about 3.6 km from its point of origin to its point of impact. Once again, this places the point of origin well within SRK-controlled territory.

489. This further consideration assures the Majority that the experts’ findings are buffered by a large margin of safety. There is no doubt that, given the characteristics of the remains of the explosion of the 120 mm mortar shell at Markale market, the shell could not have been fired from any place on the ABiH side of the confrontation lines in a direction north-northeast of Markale market.

490. Finally, the Majority notes that a shell fired at the 0+2 charge¹⁶⁹⁰ could not attain the required velocity over the given height differential for its tail-fin to penetrate the surface of Markale market to the measured extent.

     iii. Non-technical Evidence in relation to the Source of Fire

491. The Majority also emphasises that non-technical evidence supports the finding that a heavy weapon was fired from the direction north-northeast of Markale market from SRK-controlled territory at the time of the incident. The Trial Chamber finds reliable the testimony of Witness AF who heard at the time of the incident the sound of a heavy weapon being fired from behind an SRK position, Spicasta Stijena, at Mrkovici. The fact that Witness AF was at his mother’s house in Sedrenik when he heard that sound and not at his place in Vratnik does not cast doubt on his ability to assert a direction. The Majority is convinced by the evidence in the Trial Record, which establishes that the noise made by a firing mortar can be used to determine the approximate direction of fire.

492. The Majority wishes to address the Defence’s contention that a possibility exists that the shell was fired from within territory controlled by the ABiH because certain units of the ABiH were psychologically capable of firing unto their own territory. The Defence argues that in doing so, these ABiH units may have sought to attract international sympathy for the Muslim population of Sarajevo. The Majority finds not only unreasonable that ABiH forces would have fired in this case on their own civilians but also contrary to the material facts proved.

493. The Majority finds that the mortar shell which exploded at Markale market on 5 February 1994 was fired from SRK-controlled territory.

     h. Conclusion on Deliberateness of the Attack

494. Evidence in the Trial Record establishes that a target, such as Markale market, can be hit from a great distance with one shot if the area is pre-recorded. Niaz testified that in the four months preceding the incident at Markale market, about 10 to 12 mortar shells fell around Markale market and that most of them were of a 120 mm calibre and originated from the direction north-northeast of Sedrenik. The UNMOs who wanted to investigate these attacks were not allowed access to the northeast area of the city controlled by the SRK. After the Markale incident, Hamill visited an SRK representative positioned in the northeastern area of the city, Colonel Cvetkovic, who confirmed to him that there were a number of 120 mm mortars in Mrkovi ci and along the estimated direction of fire to the north-northeast of Markale.

495. The Majority is convinced that the mortar shell which struck Markale was fired deliberately at the market. That market drew large numbers of people. There was no reason to consider the market area as a military objective. Evidence was presented in relation to the status of the “December 22” building located by the market, which manufactured uniforms for the police and the army. It is unclear whether manufacturing was still on-going at the time of the incident but in any case it is not reasonable to consider that the employees of such a manufacturing plant would be considered legitimate targets.

496. In sum, the Majority finds beyond reasonable doubt that the 120 mm mortar shell fired at Markale market on 5 February 1994, which killed over 60 persons and wounded over 140 others, was deliberately fired from SRK-controlled territory.

     (h) Kosevo Area

497. Kosevo Hospital was one of the two main medical facilities in Sarajevo in operation during the conflict.¹⁶⁹¹ It was formally known as the “University Clinical Centre of Sarajevo”¹⁶⁹² or the “Clinical Centre of the University of Sarajevo”¹⁶⁹³ and consisted of a series of large buildings located in the northeastern part of the center of Sarajevo.¹⁶⁹⁴ Witnesses called by both the Prosecution and the Defence provided uncontested testimonies that Kosevo Hospital was a widely known civilian medical facility.¹⁶⁹⁵

498. The Trial Record contains extensive evidence from hospital staff and international observers indicating that Kosevo hospital was regularly shelled throughout the Indictment Period, resulting in civilian casualties, as well as in damage to the hospital infrastructure. Fatima Zaimovic, the head nurse at the Kosevo Hospital children’s surgery ward, remembered that the hospital was very frequently shelled during the Indictment period, and was also hit “by very large bullets that could go through the walls and cause real disaster”.¹⁶⁹⁶ On one occasion in 1993, two of her colleagues were killed by a shell that hit their office.¹⁶⁹⁷ On another instance that same year, a shell hit a patient’s room in another ward, killing two patients and wounding another.¹⁶⁹⁸ Witness DP51, a surgeon at the Kosevo hospital, testified that he tried unsuccessfully to save the life of an engineer who had been seriously injured by shelling at the hospital in October or November 1992.¹⁶⁹⁹ John Ashton, who arrived in Sarajevo in July 1992 as a photographer,¹⁷⁰⁰ also witnessed two artillery shells landing on the hospital in October 1992, damaging two buildings. People outside the hospital who witnessed the firing informed him that the shells had originated in SRK territory.¹⁷⁰¹ Michael Carswell, a Canadian UNPROFOR representative in Sarajevo from January to April 1993,¹⁷⁰² testified that shells regularly landed on the hospital during his tour of duty in the city.¹⁷⁰³ Afzaal Niaz, a Pakistani officer who served as a UNMO in Sarajevo from October 1993 to March 1994,¹⁷⁰⁴ remembered investigating a shelling incident which had claimed the lives of three or four persons and had damaged a building of the hospital in December 1993 or January 1994.¹⁷⁰⁵ Francis Roy Thomas, a Canadian officer who oversaw UNMOs in Sarajevo from October 1993 to July 1994,¹⁷⁰⁶ received reports that the hospital had been shelled several times during his stay in the city.¹⁷⁰⁷ Other UN reports similarly document shelling of the Kosevo hospital taking place during the Indictment Period.¹⁷⁰⁸

499. Several UNPROFOR representatives explicitly attributed the shelling of the Kosevo hospital to actions of the SRK. Harding, the commander of the United Nations military observers (“UNMOs”) on the PAPA side from July 1992 until January 1993,¹⁷⁰⁹ recalled that on 7 December 1992 an UNPROFOR report established that an attack the previous day had killed a nurse and injured several others.¹⁷¹⁰ Consequently, on 30 December 1992, Harding decided to conduct a battle damage assessment of the hospital in order to identify how the damage caused by shelling affected the hospital’s operations.¹⁷¹¹ He found that the hospital had been hit by artillery, anti-aircraft artillery (AAA) and possibly tank fire. The third floor had received several direct hits by 122mm artillery and 40mm AAA. One room in the intensive care unit had also been directly hit and damaged beyond repair by 20, 40 and 82 mm shells fired from a north-easternly direction.¹⁷¹² He established that the fire had originated from Poljine and Trebevic,¹⁷¹³ both areas being within SRK-held territory during the Indictment period. During his testimony in court, Harding added that “(t(he damage that I inspected was on the vertical sides of the hospital and so did not come from the city centre”.¹⁷¹⁴

500. In 1993, Cutler, an officer who served as a senior UNMO in Sarajevo from 26 December 1992 to 15 March 1993,¹⁷¹⁵ received several reports indicating that the hospital had been hit on several occasions, including at the end of January 1993.¹⁷¹⁶ UN representatives visited the hospital on the 31st of January to investigate shelling incidents which had occurred on 29, 30 and 31 January 1993¹⁷¹⁷ and reported that the shelling significantly damaged the northern part of the hospital compound, injuring several staff members and patients.¹⁷¹⁸ Cutler attributed the 29 January 1993 shelling to the SRK because the 155 mm shell recovered after the incident was known to be used exclusively by the SRK.¹⁷¹⁹

501. The Trial Record discloses that SRK soldiers admitted such targeting of the hospital. In February 1993, Carswell spoke to SRK gun crews positioned in the southern part of Sarajevo who told him that they deliberately fired on the hospital.¹⁷²⁰ These gunners explained that the medical facility was a legitimate military target because they had been told by an unspecified source that the ABiH used the Kosevo buildings as army barracks.¹⁷²¹

502. The statement of a high-ranking government member of the Republika Srpska corroborates the above evidence. In the spring of 1992, Dragan Kalinic, the Minister of Health of the Republika Srpska encouraged “[those] who will be planning the Sarajevo operation, either [by] liberating Sarajevo or [by] destroying the enemy forces in Sarajevo, [to plan] what to do with the medical facilities. And let me tell you this right now, if the Military Hospital is to end up in the hands of the enemy, I am for the destruction of the Kosevo hospital so that the enemy has nowhere to go for medical help.”¹⁷²²

503. Several witnesses recounted that the shelling of the Kosevo hospital was the subject of repeated protests by the UNPROFOR to the Accused, but it remained a regular target.¹⁷²³

504. The evidence in the Trial Record also indicates however that there was outgoing ABiH mortar fire from the Kosevo Hospital grounds or from its vicinity, sometimes soliciting SRK counter-fire. The Prosecution has conceded that ABiH mortar fire originated from hospital grounds.¹⁷²⁴

505. Pyers Tucker, a British officer who served as assistant to general Morillon from October 1992 to March 1993,¹⁷²⁵ testified that a fellow British sergeant had told him that he had seen the ABiH fire from the hospital in January 1993. The sergeant was delivering fuel and had arrived at the hospital earlier than expected, which enabled him to observe ABiH soldiers firing with a mortar mounted on the back of a truck.¹⁷²⁶ The same sergeant told Tucker that on other occasions when he had delivered fuel, ABiH forces had stopped his vehicle a short distance away from the hospital and had instructed him to wait.¹⁷²⁷ Shortly thereafter, the sergeant would hear firing from the hospital, but when he was allowed to enter the hospital compound, he could find no traces of such activity.¹⁷²⁸ Tucker was also informed by journalists that they had attended a press conference in December 1992 during which the hospital was shelled.¹⁷²⁹ Based on the accounts of journalists present at the scene, Tucker estimated that the SRK had responded with its own fire on the hospital within a mere half an hour of ABiH mortar fire originating from the medical installation.¹⁷³⁰

506. Cutler deposed in January 1993 a British officer who told him that he had witnessed while escorting a fuel convoy on an unspecified date the ABiH fire five 82 mm mortar rounds from the hospital grounds.¹⁷³¹ Thirty minutes elapsed after the initial ABiH attack before the hospital came under mortar, artillery and anti-aircraft fire.¹⁷³² Other UNPROFOR representatives confirmed receiving reports of the presence of ABiH mortars or military equipment at the hospital.¹⁷³³ The witnesses also recounted that the UNPROFOR lodged complaints with the ABiH and local authorities of Sarajevo about the use of mobile mortars from the hospital.¹⁷³⁴ Evidence from SRK soldiers also corroborates the testimonies of Tucker and Cutler.¹⁷³⁵

507. The evidence as to who was responsible for the firing from the Kosevo hospital grounds or its vicinity was unclear. Vahid Karavelic, the commander of the ABiH 1st Corps during the conflict, testified that neither he nor, to the best of his knowledge, anyone else in the ABiH 1st Corps had ordered mobile mortars to fire from civilian buildings.¹⁷³⁶ He conceded that there were subversive elements operating in Sarajevo.¹⁷³⁷ Tucker was aware of “one particular mobile special mortar unit which was under the control of a radical part of the BiH army. […] The units had these trucks and were able to move somewhere, fire quickly, and then move away quickly.”¹⁷³⁸ He believed it was “very plausible” that those responsible “were not subordinated to the hierarchy”.¹⁷³⁹

508. The witnesses indicated further that, despite occasional outgoing ABiH fire from hospital ground, the SRK attacks were in fact directed at the hospital and served no military purpose. As result of the incident reported to Cutler, Harding re-visited the Kosevo hospital in January 1993 to assess whether it was being shelled as result of SRK counter-battery fire, or deliberately targeted.¹⁷⁴⁰ He could not find any of the distinctive traces usually left by mortars.¹⁷⁴¹ On the basis of his observations at the Hospital, Harding concluded that:

     [i]f there was offensive action taken as a direct result of those mortars, it can be referred to as counter battery fire. However, when I went to the hospital, there was fresh damage as it was only a week or two after I conducted a battle damage assessment. And had the hospital been damaged by a 76 millimetre anti-tank rounds or armour-piercing rounds, and some of these rounds were presented to me, these rounds had hit the building very high up. So even if they had been fired whilst the mortar was firing, they would have been completely ineffective. Six or seven rounds had hit the hospital, and obviously they had been fired by a weapon aimed at the hospital rather than at any mortars that may or may not have been there. So the hospital had been attacked, and it was not a suitable weapon to use as counter battery fire […] By high up, I mean that if it was counter battery fire, it would be aimed at something on the ground, but it obviously wasn't because it was on the first or second storey of the building. So if it had been fired at the same time as the mortars were firing, there was no way at all that it would ever have hit the mortars because it was just fired at the building. The building was the target, not any mortars.¹⁷⁴²

     Mole, Senior UNMO from September to December 1992, stated the hospital was often hit in the context of return fire to the mortars fire outgoing from hospital grounds. However, he observed that “the imbalance between the number of rounds which were outgoing from the Presidency side and the number that were returned in apparent response was such that it was heavily in favour of the Serb side”.¹⁷⁴³ Jacques Kolp, UNPROFOR Liaison Officer with the ABiH from March 1993 to November 1994, testified that according to UN sources, the hospital had been shelled before the ABiH ever began firing mortars from the facility.¹⁷⁴⁴ Morten Hvaal, a Norwegian photojournalist who lived close to the Kosevo Hospital, said that “maybe on a dozen occasions”, always at night, he heard and saw mortars being fired from at least a hundred metres from hospital grounds. After firing a few rounds, these mortars would be dissembled, placed in the back of a car and transported away.¹⁷⁴⁵ He observed, however, that “there was frequently incoming fire in and around the hospital grounds. It often increased with the level of activity [of the hospital], vehicles arriving and leaving, people being carried on stretchers from building to building”.¹⁷⁴⁶

509. The Trial Chamber is satisfied beyond reasonable doubt that the Kosevo hospital, a well-known civilian medical facility, was regularly targeted during the Indictment Period by the SRK. These attacks caused the death or injury of civilians present at Kosevo hospital, significantly damaged its infrastructure, and substantially reduced the medical facility’s ability to treat patients. The Trial Chamber is further satisfied that ABiH mortar fire originated from the hospital grounds or from its vicinity and that these actions may have provoked SRK counter-fire. The frequency at which this occurred is unclear from the evidence in the Trial Record. However, given these circumstances, it is not possible for the Trial Chamber to establish what damage and which casualties may have resulted from this exchange of fire.¹⁷⁴⁷ Nevertheless, the evidence does reveal that, on occasions, the Kosevo hospital buildings themselves were directly targeted, resulting in civilian casualties, and that this fire was certainly not aimed at any possible military target. For example, on one of these occasions, the third floor of a hospital building was struck by 122m artillery and 40m anti-aircraft artillery fired from SRK positions.¹⁷⁴⁸ The Trial Chamber considers that these direct attacks on Kosevo hospital constitute examples of the campaign of attacks on civilians.
     3. Sniping and Shelling of Civilians in Rural ABiH-held Areas of Sarajevo

     (a) Sedrenik Area

510. The Prosecution alleges that the ridgeline on the SRK frontline known as Spicasta Stijena or “Spikey Rock” or “Sharpstone,” which overlooks the northeastern part of Sarajevo and the neighbourhood of Sedrenik, was a “notorious source of sniping fire”¹⁷⁴⁹ against civilians during the Indictment Period.¹⁷⁵⁰

     (i) Spicasta Stijena

511. The Trial Chamber heard uncontested testimonies to the effect that Spicasta Stijena was under the control of the SRK during the conflict. Witness DP53 and Vaso Nikolic, both SRK soldiers,¹⁷⁵¹ testified that they were sometimes posted in the immediate vicinity of Spicasta Stijena.¹⁷⁵² They explained that SRK troops manned trenches and an observation post there, from which soldiers could peer into certain sections of Sedrenik,¹⁷⁵³ while the closest ABiH frontline lay approximately 50 metres below the ridgeline.¹⁷⁵⁴ Witness DP20, also an SRK soldier,¹⁷⁵⁵ occasionally went to this area¹⁷⁵⁶ and confirmed that the SRK had deployed troops at Spicasta Stijena.¹⁷⁵⁷ There was ongoing fighting between the ABiH and the SRK in this area¹⁷⁵⁸ and in April 1993 for example, the ABiH captured an SRK trench on the ridgeline.¹⁷⁵⁹ The SRK recaptured that trench a few days thereafter however¹⁷⁶⁰ and overall the confrontation lines in the area did not change throughout the conflict except in limited instances.¹⁷⁶¹

512. Witnesses who did not belong to the SRK corroborated this evidence. Major Francis Thomas, a representative of the United Nations,¹⁷⁶² recalled visiting trenches belonging to the SRK near Spicasta Stijena.¹⁷⁶³ Witness E, a resident of Sedrenik,¹⁷⁶⁴ concluded that the SRK controlled the ridgeline based on the shouts and expletives which she could hear coming from there.¹⁷⁶⁵ Nazija Ocuz, another resident of Sedrenik,¹⁷⁶⁶ testified that she too believed that the SRK controlled Spicasta Stijena because she had seen two SRK soldiers arguing there during the conflict.¹⁷⁶⁷

513. Based on the above uncontested evidence, the Trial Chamber is satisfied beyond reasonable doubt that the SRK controlled the immediate vicinity of Spicasta Stijena during the Indictment Period, with the ABiH positioned nearby, below the ridgeline.

514. The Prosecution called witnesses from a variety of backgrounds to testify to the small-arms fire experienced by civilians in Sedrenik. It called Witness E who testified about an instance when she was 9 year old and shot. That incident is alleged in Schedule 1 of the Indictment under number 2. The Prosecution also called, as a resident of the area, Mejra Jusovic, who explained that shots were fired daily from the direction of Spicasta Stijena into the area.¹⁷⁶⁸ She testified in particular about one instance where her son was gravely injured on 10 November 1992,¹⁷⁶⁹ and which is an incident specifically alleged as representative of fire against civilians in the area of Sedrenik in Schedule 1 to the Indictment, under number 8. The conclusions in the two following express the views of the Majority of the Trial Chamber. Judge Nieto-Navia expresses separate and dissenting views in relation to these incidents.

     (ii) Scheduled Sniping Incident 3¹⁷⁷⁰

515. Witness E testified that on the day of the incident, she was a 9 year-old girl with long hair and was maximum 150 centimetres tall.¹⁷⁷¹ The weather was sunny and Witness E, who was wearing dark trousers and a blue jacket, had gone outside into her front yard to play underneath a window of her house in Sedrenik.¹⁷⁷² Approximately one hour and a half after being outside in the yard, she was hit by a single bullet as she was kneeling to play by herself with flowers near a wall in the front of her house; at the time, her back was to the wall of her house and she faced the direction of Spicasta Stijena.¹⁷⁷³ The bullet hit her in “the area of [her] shoulder blade … went through [her] body and ended up in the wall”¹⁷⁷⁴ behind her. Witness E went towards her house to sit on the threshold, calling out to her mother for help and received first-aid from an aunt who was a nurse.¹⁷⁷⁵ Some unspecified time thereafter that same day, Witness E was transported in a car to a hospital in Sarajevo with the help of neighbours.¹⁷⁷⁶ A shot was fired at the car as it pulled away from Witness E’s house, hitting it in the back.¹⁷⁷⁷ The Majority is satisfied that Witness E testified reliably about the circumstances of her wounding and hospital records show that on the day of the incident, Witness E was treated for an entry-exit bullet wound which had injured her “cutaneous and sub-cutaneous layers of skin.”¹⁷⁷⁸

516. Witness E testified that she believed that the bullet responsible for her injury had been fired from the ridge known as Spicasta Stijena, which she was facing when she was shot and which could be seen from the yard through two houses.¹⁷⁷⁹ She added that the back of the car taking her to the hospital was also facing Spicasta Stijena when it was hit.¹⁷⁸⁰ Two photographs tendered into evidence show that there are houses around the yard where Witness E was injured and that, in between two such houses, the ridge can be seen from the yard.¹⁷⁸¹ Other evidence in the Trial Record establishes that Spicasta Stijena afforded a view of Sedrenik and was controlled by the SRK.¹⁷⁸² According to witnesses who belonged to the latter army, SRK soldiers in the area did not fire at civilians,¹⁷⁸³ but the Majority notes that evidence from other witnesses from a wide variety of backgrounds, including a senior UN representative in Sarajevo and residents of the city, indicates that civilians in ABiH-controlled territory in the vicinity of Spicasta Stijena regularly experienced being shot at.¹⁷⁸⁴ Based on this last evidence, the unobstructed line of sight to Spicasta Stijena as well as the shooting which was directed at the car transporting Witness E to hospital and which came from the direction of this ridge, the Majority is satisfied that the bullet which injured Witness E was fired from the area of Spicasta Stijena. The Majority accepts in particular that since Witness E was kneeling and facing the ridge while playing with flowers, her posture would have caused her back to arch slightly, so that the bullet fired from Spicasta Stijena entered the upper part of her back before exiting through a lower region of her body.

517. Although the distance of approximately 1,111 metres between Spicasta Stijena and the site of the incident¹⁷⁸⁵ is significant, the Majority of the Trial Chamber is satisfied beyond reasonable doubt that Witness E was targeted deliberately. There was no military equipement or personnel near Witness E at the time and place of the incident.¹⁷⁸⁶ The victim, a child, was kneeling to play with flowers at the time of the incident so that the exposure of her body to a stray bullet fired over such a distance would have been small. In addition, although the two attacks might have been unrelated, some time after she was shot, Witness E along with others was targeted again from the direction of Spicasta Stijena as she was being taken to the hospital.

518. The Majority of the Trial Chamber finds that Witness E, a civilian, was deliberately targeted from SRK-controlled territory.

     (iii) Scheduled sniping incident number 8¹⁷⁸⁷

519. Mejra Jusovic, who lived at 133B Sedrenik Street in Sedrenik, explained that she went with a neighbour to Pasino Brdo, a wooded area to the immediate northeast, to collect firewood around 3:00 hours on 24 July 1993.¹⁷⁸⁸ Once there, she gathered the wood into a bundle which she tied together with rope.¹⁷⁸⁹ At about 6:00 hours, she placed the load on her back and decided to return home.¹⁷⁹⁰ On that early July morning, the sky was cloudy and “overcast”.¹⁷⁹¹ Mejra Jusovic was walking alone on her way back to her house - her neighbour had left about half an hour earlier -¹⁷⁹² when at approximately 200 metres from her house, she heard gunshots.¹⁷⁹³ She immediately lay down on the ground for cover.¹⁷⁹⁴ Two shots were fired, followed by a third one which hit her left buttock.¹⁷⁹⁵ After being wounded, she passed out and lay on the ground for about a half an hour before her son, who had been alerted by a neighbour, came to help her.¹⁷⁹⁶ She was then taken to a hospital where the bullet was extracted.¹⁷⁹⁷ At the time of the incident, Mejra Jusovic was not wearing a military uniform.¹⁷⁹⁸ The Majority of the Trial Chamber is satisfied that Mejra Jusovic testified credibly about the circumstances of her wounding.

520. Mejra Jusovic believed that the bullet that hit her came from a ridge known as Spicasta Stijena, which was a frequent source of small-arms fire.¹⁷⁹⁹ Other witnesses confirmed that Spicasta Stijena was controlled by the SRK and afforded a view into Sedrenik.¹⁸⁰⁰ A panoramic photograph and video of the area show that there was an unobstructed line of sight from the place where she was injured to Spicasta Stijena.¹⁸⁰¹ Witnesses called by the Defence and the Prosecution estimated the distance from Spicasta Stijena to the site of the incident to be between 600 and 900 metres as the crow flies.¹⁸⁰² Witnesses who belonged to the SRK testified that soldiers of their army in the area of Spicasta Stijena did not fire at civilians,¹⁸⁰³ but the Majority of the Trial Chamber also heard evidence from other witnesses from a wide variety of backgrounds, including a senior UN representative and residents of the city, that civilians in ABiH-controlled territory in the vicinity of Spicasta Stijena regularly experienced shooting.¹⁸⁰⁴ On the basis of this last evidence as well as both the approximate distance and the unobstructed line of sight between Spicasta Stijena and the site of the incident, the Majority is satisfied that the shot which injured Mejra Jusovic originated from SRK-controlled territory in the area of Spicasta Stijena.

521. Although Mejra Jusovic’s did not indicate explicitly the light conditions at the time of the incident, the Majority is satisfied that the circumstances of the incident establish that the victim could only have been shot at deliberately. Mejra Jusovic did not report that there was any ongoing fighting at the time of the incident ¹⁸⁰⁵ and heard only two shots being fired before a third one hit her, as she lay on the ground. Furthermore, the victim was an easier target since she was not moving and the perpetrator was positioned higher up, in the elevated area of Spicasta Stijena. The sequence of events demonstrates conclusively that the victim, targeted by several bullets and in such a position, was made the object of the attacks. In reaching this conclusion, the Majority is aware that Witness E, a resident of Sedrenik,¹⁸⁰⁶ who marked on a map the position of trenches in the area immediately west of Pasino Brdo¹⁸⁰⁷ warned during her testimony about her placement of the trenches as she "can't read maps very well"¹⁸⁰⁸ and she "never went to [these] trenches,”¹⁸⁰⁹ relying instead on information she had heard from others when she was a little girl.¹⁸¹⁰ The Majority also notes that evidence from SRK soldiers posted in the area indicates that there were a series of ABiH trenches immediately behind the front lines at Spicasta Stijena 50 metres below the rigde,¹⁸¹¹ without any suggestion that there were additional ones close to the site of the incident.

522. Although it is convinced that at 6:00 hours in a July morning there is light, given the absence of explicit indications as to the exact level of luminosity at the time of the incident, the Majority cannot exclude the possibility that the person firing at Mejra Jusovic failed to notice that she was a middle-aged civilian woman carrying wood. Nonetheless, the Majority is satisfied that the absence of military presence in the area of the incident,¹⁸¹² which consisted of open space except for three nearby houses,¹⁸¹³ should have cautioned the perpetrator to confirm the military status of his victim before firing.

523. The Majority therefore finds that Mejra Jusovic was fired upon from SRK-controlled territory in reckless disregard of the possibility that she was a civilian.

     (iv) Other Evidence of Targeting of Civilians from Spicasta Stijena

524. The Trial Chamber heard testimonies from witnesses from Sarajevo who visited or knew about civilian casualties in the area of Sedrenik and who testified that the people living there were subjected to regular small-arms fire. One such visitor, Witness AF, went regularly to Sedrenik to see his parents who lived about 200 metres away from Spicasta Stijena.¹⁸¹⁴ He testified that small-arms fire killed his father¹⁸¹⁵ and injured his mother on 31 March 1993 near their home.¹⁸¹⁶ Mirsad Kucanin, a criminal inspector with the Security Service Centre in Sarajevo,¹⁸¹⁷ personally investigated one incident where residents in Sedrenik had been targeted by small-arms fire during the Indictment Period,¹⁸¹⁸ and added that his colleagues had conducted inquiries into other similar incidents in the area.¹⁸¹⁹ Fuad Šehbajraktarevic, the director of a funeral parlour in Sarajevo,¹⁸²⁰ testified that “lots of people were killed there, killed by snipers.”¹⁸²¹ He recalled in particular going to Sedrenik once at an unspecified date to see a carpenter whose 17- or 18-year old son had been killed while in front of their house, which was located only “a hundred metres, 50, [or] 60 metres”¹⁸²² away from Spicasta Stijena. Mustafa Kovac, who held senior positions in the civil defence organisation in Sarajevo during the Indictment Period,¹⁸²³ testified that “there was continuous use of [firearms] that were shooting on Sedrenik, the broader area of Sedrenik and the district below it.”¹⁸²⁴

525. United Nations representatives also testified that civilians in Sedrenik were subjected to small-arms fire during the Indictment Period. As the senior UNMO in Sector Sarajevo from October 1993 to July 1994,¹⁸²⁵ Major Francis Thomas oversaw observers posted throughout Sarajevo.¹⁸²⁶ Some of these observers in the area of Sedrenik reported that persons in the ABiH -controlled side of the ridgeline were fired upon for no apparent reason.¹⁸²⁷ This fire caused “a significant number of [civilian] casualties,”¹⁸²⁸ prompting Major Francis Thomas or one of his local team commanders to lodge protests with the SRK.¹⁸²⁹ He also remembered visiting SRK trenches near Špicasta Stijena and found that they afforded “a very clear view”¹⁸³⁰ into territory controlled by the ABiH. Another United Nations representative, Colonel David Fraser, in Sarajevo from April 1994 onwards, confirmed that the UN investigated “incidents [involvin] firearms occurring atg a place called Sedrenik or Grdonj,”¹⁸³¹ though he did not specify in the course of his testimony whether the victims in these incidents were civilians.

526. Several Defense witnesses who belonged to the SRK denied that civilians in the area of Sedrenik were deliberately fired upon by soldiers of their army. Vaso Nikolic, who was deployed in the vicinity of Spicasta Stijena, explained that the soldiers in his company were forbidden to fire on civilians and that his military commanders repeated this injunction whenever fresh troops arrived.¹⁸³² Witness DP53 added that neither he nor any of his fellow SRK soldiers posted at Spicasta Stijena fired at civilians.¹⁸³³ Both Witness DP53 and Vaso Nikolic explained that, in any event, they could not see civilians in Sedrenik from their positions.¹⁸³⁴ Other SRK soldiers who sometimes visited Spicasta Stijena or were posted in the northeastern quadrant of Sarajevo corroborated aspects of the testimonies of Vaso Nikolic and Witness DP53. Witness DP20 confirmed that during his occasional visits to Spicasta Stijena, he did not see civilians in Sedrenik.¹⁸³⁵ DP34, a senior officer in the SRK’s Kosevo brigade¹⁸³⁶ which was positioned in parts of the northeastern quadrant of Sarajevo,¹⁸³⁷ recalled receiving on several occasions written orders prohibiting firing on civilians.¹⁸³⁸ Sasa Knezevic, a soldier with the Kosevo brigade until September 1993,¹⁸³⁹ had also received standing orders never to fire on civilians.¹⁸⁴⁰ The Trial Chamber evaluated the the evidence arising from SRK sources that no fire was directed from the area of Spicasta Stijena at civilians in Sedrenik during the Indictment Period in the light of evidence to the contrary from civilian residents of Sedrenik and international observers posted in Sarajevo during the Indictment Period, charged with monitoring fighting in Sarajevo. This evidence is overwhelming and satisfies the Trial Chamber, beyond reasonable doubt, that civilians in the area of Sedrenik experienced indiscriminate or direct small-arms fire originating from Spicasta Stijena, SRK-controlled territory, during the Indictment Period.

     (b) Sirokaca Area

527. The Prosecution alleges that the ridgeline known as Baba Stijena or “Baba Rock,” which is located on the northern flank of Mount Trebevic and which overlooks the neighbourhood of Sirokaca in Sarajevo, was under the control of the SRK and was a source of sniping fire against civilians during the Indictment Period.¹⁸⁴¹

     (i) Mount Trebevic and Baba Stijena

528. Maps marked by soldiers of both the SRK and the ABiH indicate that the two armies faced each other along a confrontation line located in the south-eastern quadrant of Sarajevo, with the ABiH controlling the northern base of Mount Trebevic.¹⁸⁴² Testimonies heard by the Trial Chamber corroborated this evidence. DP1, who provided humanitarian relief for the Serb population living in Sarajevo during the conflict,¹⁸⁴³ explained that one of his acquaintances had dug trenches at the foot of Mount Trebevic for the ABiH.¹⁸⁴⁴ Akif Mukanovic, a soldier of the ABiH deployed in that area,¹⁸⁴⁵ confirmed the existence of such trenches.¹⁸⁴⁶ Immediately east of the northern base of Mount Trebevic, ABiH troops also controlled elevated positions in the vicinity of a hill called Colina Kapa.¹⁸⁴⁷

529. The SRK deployed forces in the area enabling it to control much of the remainder of Mount Trebevic, including upper regions affording a view of Sarajevo. Radovan Radinovic, a military expert called by the Defence,¹⁸⁴⁸ concluded after interviewing SRK officers and reviewing ABiH and SRK written orders that the SRK during the conflict controlled Mount Trebevic, whose elevation offered a military advantage over neighbouring ABiH positions.¹⁸⁴⁹ He added that the control of this mountain constituted one of the few strategic advantages enjoyed by the SRK over the ABiH in that area of Sarajevo.¹⁸⁵⁰ Aernout van Lynden, a Dutch journalist who visited Sarajevo several times during the Indictment Period,¹⁸⁵¹ explained that he went in September 1992 to “[SRK]-held districts within Sarajevo, Grbavica, Hrasno, and the area adjoining what was known as the Jewish cemetery, also on Mount Trebevic where the [SRK] had various positions overlooking the city much higher up.”¹⁸⁵² Richard Mole, Senior UNMO from September to December 1992,¹⁸⁵³ drew up in December 1992 a map representing the position of confrontation lines in Sarajevo.¹⁸⁵⁴ That map indicates that except for an area to the north and northwest, much of Mount Trebevic, including its upper regions, lay in SRK-held territory.¹⁸⁵⁵

530. As for Baba Stijena, the evidence in the Trial Record about the zone of control under which it fell is mixed. Vahid Karavelic, who eventually became the commander of the ABiH 1st Corps during the conflict,¹⁸⁵⁶ believed that the ridgeline lay in SRK-held territory.¹⁸⁵⁷ Witness DP11, a soldier in the 4th battalion of the SRK stationed in the southeastern part of the city,¹⁸⁵⁸ disagreed, testifying that the ridgeline lay in "a neutral area"¹⁸⁵⁹ between the confrontation lines. These differing testimonies and the absence of other conclusive evidence on the issue do not allow the Trial Chamber to determine whether the Baba Stijena ridgeline itself lay within territory controlled by the SRK or was in fact a no man’s land. Evidence from both the SRK and the United Nations discloses, however, that the SRK regularly used the road on the northern flank of Mount Trebevic which lies close to Baba Stijena¹⁸⁶⁰ and which leads to Pale.¹⁸⁶¹ In particular, Carl Harding, a UNMO serving in Sarajevo at the time Anisa Pita was shot,¹⁸⁶² explained that, except for one instance when the ABiH occupied a part of this road for a “short while”¹⁸⁶³ before retreating,¹⁸⁶⁴ the road leading to Pale was controlled by the SRK¹⁸⁶⁵ and that the position of the confrontation lines in this area was “very static because the ground was very difficult … [and] is very, very steep and closely wooded [so that] the road that went to Pale was a significant boundary for both sides.”¹⁸⁶⁶ The Trial Chamber is satisfied that this and the other evidence from a military expert for the Defence, an international journalist and a senior United Nations representative establish beyond reasonable doubt that the SRK operated from the general area of Baba Stijena.

531. Civilians described to the Trial Chamber the regular gunfire which they experienced in the neighbourhood of Sirokaca. Ekrem Pita and his wife Fatima, both residents of Sirokaca,¹⁸⁶⁷ explained that gunfire was directed daily into the neighbourhood after the conflict began.¹⁸⁶⁸ As a result, Ekrem Pita stopped going to work because commuting became dangerous.¹⁸⁶⁹ The Pitas also modified their daily habits, spending 90 percent of their time in their cellar¹⁸⁷⁰ and typically leaving their house under the cover of foggy weather to forage for basic necessities such as food and wood.¹⁸⁷¹ Ekrem Pita also recalled that after his daughter Anisa Pita was injured by a bullet on 13 December 1992, he took her regularly on foot to Kosevo hospital during a three -week period for follow-up treatment.¹⁸⁷² These trips over a distance of 3 to 4 kilometres¹⁸⁷³ were very dangerous because there was gunfire and shelling in the area.¹⁸⁷⁴ He and his wife recounted the instance where their daughter was shot, which the Prosecution alleges specifically in Schedule 1 of the Indictment under number 2.

     (ii) Scheduled sniping incident number 2¹⁸⁷⁵

532. On 13 December 1992, Ekrem Pita testified that he left his house with his daughter Anisa, who was three-and-a-half years old, to fetch some water¹⁸⁷⁶ between 10 and 10:30 am.¹⁸⁷⁷ The weather was chilly and foggy and that there was no ongoing fighting when father and daughter left the house.¹⁸⁷⁸ They went to a water source about 150 metres from the house and people were already there so that they had to wait in line.¹⁸⁷⁹ Anisa Pita remained only a short while at the water source;¹⁸⁸⁰ she met there another child named Elma Smajkan and both girls decided to go back to the Pitas' house to play.¹⁸⁸¹ Ekrem Pita remained behind to collect water¹⁸⁸² and remembered hearing several shots some unspecified time after his daughter had left him to return home.¹⁸⁸³

533. The fog had lifted by the time Anisa Pita reached her house.¹⁸⁸⁴ Fatima Pita, who was standing inside the house about half a metre away from the front door, saw her daughter arrive and told her to take her dirty shoes off before entering.¹⁸⁸⁵ Between 10 and 11: 00 am, as Anisa Pita was kneeling down to untie her shoe-laces while facing the front door,¹⁸⁸⁶ Fatima Pita heard one or more shots.¹⁸⁸⁷ At the time of the incident, Anisa Pita was wearing a dark red jacket, blue dungarees, a cap and white tennis shoes with laces.¹⁸⁸⁸

534. In the meantime, Ekrem Pita was informed by a neighbour that his daughter had been injured and returned to his house.¹⁸⁸⁹ Both parents inspected their daughter and found that she had been injured above the knee of her right leg by a bullet which had subsequently exited the girl's body.¹⁸⁹⁰ With the help of his brother, Ekrem Pita carried his daughter to a clinic in Stari Grad where her wounds were bandaged.¹⁸⁹¹ Anisa Pita was then taken to the orthopaedic department of Kosevo hospital for further treatment.¹⁸⁹² Despite some inconsistencies in the testimonies of Ekrem and Fatima Pita which do not relate directly to the shooting,¹⁸⁹³ the Trial Chamber is satisfied that both witnesses provided credible evidence that their daughter was shot in front of their house during the morning of 13 December 1992.¹⁸⁹⁴

535. Both parents believed that the bullet that had injured their daughter had been fired from a ridge known as Baba Stijena, because that location was visible from their house and was controlled by the SRK.¹⁸⁹⁵ Two photographs and a video taken from the front door of the Pitas’ house show this entrance to be completely walled in by neighbouring houses and structures such as fences, offering only a narrow line of sight in the direction of Baba Stijena.¹⁸⁹⁶ The evidence in the Trial Record establishes that the SRK operated from the general area of Baba Stijena.¹⁸⁹⁷ Hinchliffe measured the distance from Anisa Pita’s house to Baba Stijena to be 895 metres¹⁸⁹⁸ and maps tendered by the Defence in relation to this incident indicate that distance to be on the order of 900 metres.¹⁸⁹⁹ The Trial Chamber also notes that the Defence argued that no medical documents were tendered which would “provide information about the position of entry-and-exit wound on the leg of Anisa Pita, or which would provide the possibility to determine the direction of wound canal, including the angle and the direction from where the bullet came from.”¹⁹⁰⁰ Nonetheless, based on the approximate distance of 900 metres and the existence of a line of sight from the Pitas’ front entrance only in the direction of Baba Stijena, the Majority is satisfied beyond reasonable doubt that Anisa Pita was injured by a shot fired from the area of that ridge.

536. On the basis of the above evidence from both UN and SRK sources, the Majority is satisfied that SRK soldiers had access to the vicinity of the road to Pale, which was certainly not within ABiH territory, and the general area of the Baba Stijena ridge.

537. The Majority is also satisfied that Anisa Pita was targeted deliberately. The argument that a stray bullet could have covered the distance from the area of Baba Stijena to the Pitas’ house along a narrow line of sight, without colliding with surrounding obstacles such as houses, to hit a small child is unpersuasive.

538. Another resident of the area of Sirokaca, Nura Bajraktarevic, who regularly went to an area called Brajkovac,¹⁹⁰¹ immediately south of Sirokaca,¹⁹⁰² to collect firewood during the conflict,¹⁹⁰³ testified that there was "constant shooting"¹⁹⁰⁴ in the area. She recounted that on an unspecified date, she saw a woman named Fadila Peljto carried away in a wheelbarrow from Brajkovac after she had been hit in the stomach by a bullet while she was gathering wood.¹⁹⁰⁵ She and Bajram Sopi recounted an instance where a civilian was shot at. The Prosecution alleges that specific incident in Schedule 1 of the Indictment under number 11.

     (iii) Scheduled sniping incident number 11¹⁹⁰⁶

539. Bajram Sopi explained that, as they had done regularly, Sacir Bosnic and he went to an area near a water reservoir in Sirokaca to collect firewood the morning of 7 September 1993.¹⁹⁰⁷ They were busy digging up roots on a hill, some 10 to 15 metres apart one another, when someone “shot once [at Sacir Bosnic] and missed [him].”¹⁹⁰⁸ A second shot was fired and hit Sacir Bosnic in his right temple.¹⁹⁰⁹ The shooting stopped and some unspecified time thereafter, an ambulance arrived to transport the victim to the hospital, who died as a result of his injury.¹⁹¹⁰ In the meantime, Nura Bajraktarevic, another witness present near the site of the incident, returned home to inform Sacir Bosnic’s wife about the incident.¹⁹¹¹ Both Bajram Sopi and Nura Bajraktarevic remembered that Sacir Bosnic was wearing civilian clothes the day of the incident.¹⁹¹²

540. A panoramic view from the hill where Sacir Bosnic was killed shows that it offers an unobstructed view of the nearby surroundings, including a ridge called Baba Stijena,¹⁹¹³ from where the Prosecution alleges that the shot that killed Sacir Bosnic was fired.¹⁹¹⁴ The evidence in the Trial Record establishes that the SRK operated from Baba Stijena lies.¹⁹¹⁵

541. The Trial Chamber is not satisfied however that the evidence in the Trial Record establishes beyond reasonable doubt that Sacir Bosnic was shot from Baba Stijena. In his account of the incident, Bajram Sopi did not indicate where the bullet that killed Sacir Bosnic had been fired from, nor did he provide any indication such as the position of the victim's body at the time of death which would allow the source of fire to be deduced. For her part, Nura Barjaktrevic thought that the shot responsible for the death of the victim had come either from the boulder known as "Baba”¹⁹¹⁶ or from an area she referred to as "Kula,"¹⁹¹⁷ which she believed were both under the control of the SRK.¹⁹¹⁸ Her account does not permit the Trial Chamber to establish reliably the direction or source of fire as she explained that she had not paid close attention to the shooting taking place in the area and, for example, initially remembered hearing only one shot at the time of the incident, whereas two were fired according to Bajram Sopi.¹⁹¹⁹ Visual evidence in the form of a panoramic photograph of the site of the incident does not assist the Trial Chamber in determining the source of fire as the hill where Sacir Bosnic was shot lay exposed in a number of directions.¹⁹²⁰ The Trial Chamber is therefore not satisfied that the evidence in the Trial Record allows for the determination beyond reasonable doubt of the source of fire.

542. The evidence in the Trial Record concerning this incident also fails to establish beyond reasonable doubt that Sacir Bosnic was targeted deliberately. Although Bajram Sopi stated that the victim had been targeted twice, neither he nor Nura Barjaktarevic described the weather conditions at the time of the incident.¹⁹²¹ Whether the visibility would have permitted the deliberate targeting of Sacir Bosnic from a distance¹⁹²² cannot therefore be determined. The possibility allowed by both Bajram Sopi and Nura Barjaktarevic that there might have been ongoing fighting in the area¹⁹²³ raise the possibility, when considered in conjunction with this absence of indication about visibility, that the victim might have been killed unintentionally by a stray bullet from a military exchange. Moreover, the Trial Chamber notes that the top of the hill where the victim was shot was a bushy area devoid of civilian dwellings, where civilians might not have been expected to congregate.¹⁹²⁴

543. Therefore, the Trial Chamber finds that the Prosecution has failed to establish beyond reasonable doubt that Sacir Bosnic was targeted deliberately from SRK-held territory in full awareness of his status as a civilian or in reckless disregard of the possibility that he was a civilian.

     (c) Vogosca Area

544. The Prosecution claims that to the north of Sarajevo, in the municipality of Vogosca, the neighbourhood of Kobilja Glava regularly received sniping fire during the Indictment Period from a group of houses known as Orahov Brijeg, which is part of Poljine, in an open rural setting close to the SRK frontline.¹⁹²⁵

     (i) Orahov Brijeg

545. Residents or passers-by testified that Kobilja Glava, one of the largest rural communities in the Vogosca municipality, north of Sarajevo, was under constant fire. A farm belonging to the victim of a shooting incident, Witness G, not in the direct proximity of military installations, was regularly targeted by firearms throughout the conflict and most particularly in 1993.¹⁹²⁶ To access that farm, another witness, Witness K, stated that she had to use side roads, in particular “a road which was a little out of the way, hidden, which was safer, safer from the point of view of combat operations” because there was gunfire and snipers positioned along the main road.¹⁹²⁷ Another visitor in that area, Witness L, testified that the fetching of water, the delivery of civilian goods, and other such activities of a civilian nature, were done at dawn or dusk, when civilians could not easily be seen¹⁹²⁸ by persons located on SRK-controlled territory who, according to Ifeta Sahic, a resident in that area, “[would] shoot at everyone, civilians, everything that moved.”¹⁹²⁹

546. All these witnesses testified to having experienced targeting from SRK-controlled territory, which specific instances are alleged in Schedule 1 of the Indictment under numbers 4, 9 and 14.

     (ii) Scheduled Sniping Incident 4¹⁹³⁰

547. Witness G testified that on 25 June 1993 he was picking lettuce in the vegetable plot of his farm in Kobilja Glava when, around 13:20 hours, he heard sounds of shooting from Orahov Brijeg.¹⁹³¹ He lay down for two or three minutes and when he got up, he was shot in the back.¹⁹³² Upon receiveing a “tremendous blow”, he turned 180 degrees, fell and fainted.¹⁹³³ Witness K who was visiting Witness G that day saw him lying on the ground, on his back, at a distance of 50 to 100 meters from his house.¹⁹³⁴ Witness K ran to assist Witness G who warned her to be careful because he had just been shot.¹⁹³⁵ Witness K went to get the assistance of a neighbour and returned with him to take Witness G away.¹⁹³⁶ While they were carrying Witness G, they heard intense shooting directed towards them.¹⁹³⁷ The three dropped on the ground. The shooting then stopped. They then ran several metres until the shooting restarted. Four or five times, they ran short distances, then fell to the ground to avoid being shot at.¹⁹³⁸ Witness K counted 10 to 15 shooting periods in total,¹⁹³⁹ and it took them 15 to 20 minutes to carry Witness G to the house.¹⁹⁴⁰ Witness G was then transported to hospital,¹⁹⁴¹ and hospitalised for a month.¹⁹⁴² The Trial Chamber has no doubt that the incident occurred as recounted by the eye -witnesses. It finds these witnesses credible and reliable.

548. The Trial Chamber has no doubt either that Witness G had civilian status on the day of the incident. The activity in which he was involved and the manner in which he was dressed (he was dressed in no more than a pair of shorts) were without any doubt the activity and dress of a civilian.

549. The Defence submits that the victim was not able to determine the source of fire¹⁹⁴³ and that Witness G’s injuries “could not happen from the direction indicated and claimed”.¹⁹⁴⁴ Witness G testified that his property was located partly on a slope facing approximately north-west and partly on top of a ridge,¹⁹⁴⁵ at approximately 500 meters from the frontline.¹⁹⁴⁶ Both witnesses said that there was no other military presence or military equipment in the close vicinity of Witness G’s property.¹⁹⁴⁷ Witness G recounted that before being shot in the back, he heard sounds of shooting from Orahov Brijeg,¹⁹⁴⁸ which is part of Poljine and faces the northernmost boundary of his farm.¹⁹⁴⁹ Witness G explained that on that location, there was a group of houses called the Orahov Brijeg complex, which was on the frontline on the hills overlooking his property. According to Witness G, it was held by snipers.¹⁹⁵⁰ One of the houses there was locally known as “Tica’s House”: when shooting came from that house or a location in the vicinity of that house, people would say that fire came from “Tica’s House”.¹⁹⁵¹ Witness G was adamant that on 25 June 1993, gunfire came from Tica’s House, which used to belong to the parents of a neighbour, nicknamed Tica.¹⁹⁵² According to Witness G, that was “the only location where there was a line of visibility ” to his vegetable plot and from which a shooter could have seen him in the vegetable plot.¹⁹⁵³ Witness G indicated on the video and 360 degree photograph of the area where he was shot, the vegetable plot where he was shot, his position and stance at the time he was shot: the photograph depicts Witness G standing and bent forwards, with his back facing Orahov Brijeg.¹⁹⁵⁴ According to Witness G, being higher up, the snipers there “had enough room to shoot from”.¹⁹⁵⁵ Witness K testified similarly that the source of fire was Orahov Brijeg.¹⁹⁵⁶

550. The Trial Chamber sees no reasons to doubt the witnesses’ assertion. Considering the number of times the party had to drop on the ground to avoid being targeted, it was easy for them to determine the direction of gunfire. The video and photographs of the area tendered into evidence further demonstrate that there was a line a sight between the area around “Tica’s House” and the spot where Witness G was wounded. Furthermore, the photograph tendered into evidence which depict Witness G’s position and stance at the time he was shot shows that he was bent forwards, with his back towards Orahov Brijeg. The evidence of Witness G in relation to the entry and exit point of the bullet which wounded him and the photographs of his back showing scars caused by bullet wounds conclusively support the testimonies that the bullets fired at Witness G came from the direction of Orahov Brijeg, in the area of “Tica’s House ”.¹⁹⁵⁷ The Trial Chamber is satisfied beyond reasonable doubt that the bullet which wounded Witness G was fired from the area around “Tica’s House”. The Defence Witness DP14, an SRK officer positioned in the North of Sarajevo, testified that the area around “Tica’s House” was held by SRK forces.¹⁹⁵⁸ The Trial Chamber is satisfied beyond reasonable doubt that the area around “Tica’s House” was held by SRK forces and that Witness G was shot from SRK-controlled territory.

551. The Defence argues that it was possible that the victim was shot by a stray bullet during an exchange of fire,¹⁹⁵⁹ because there was daily shooting along the confrontation lines, where the farm was, which extended to Orlic hill under the ABIH control after May 1992, @uc hill under both armies’ control and Mijkica hill under VRS control.¹⁹⁶⁰ According to the Defence, the garden in which Witness G was shot was behind the ABiH positions and his house was located 20 to 30 meters away from those positions.¹⁹⁶¹ Witness G testified that his property was constantly targeted by firearms throughout the duration of the conflict and most particularly in 1993. However, there is no evidence of ongoing military activity at the time and day of the incident, which could have justified a bullet being fired in the direction of Witness G’s property. The Defence’s argument is particularly untenable in view of the account of the incident by Witnesses G and K. Witness K recounted how, while Witness G was being taken to cover by a neighbour and herself - both also dressed in civilian clothing- the three of them were repeatedly shot at, one or more perpetrators waiting for them to stand up and run several meters before shooting again. The Trial Chamber is satisfied beyond reasonable doubt that in view of Witness K’s account of the incident, one or more perpetrators were deliberately targeting civilians. Therefore, the Trial Chamber finds that Witness G, a civilian, was shot deliberately from SRK-controlled territory.

     (iii) Scheduled Sniping Incident 9¹⁹⁶²

552. Ifeta Sahic was 14 years old in August 1993 and was living at her sister’s house in Kobilja Glava when on 5 August 1993, around noon, she was asked to go and fetch water with her two girlfriends, Sabina Zekovic and Vildana Kapur.¹⁹⁶³ Sahic testified that there was neither water nor electricity in houses during the conflict, and that the fetching of water was usually done at the nearby river at dawn or dusk, to avoid being detected and shot at. However, on that day, they had not heard any shooting.¹⁹⁶⁴ On their way back, while walking along Stara Cesta Street, and pulling a wheelbarrow loaded with jerry cans of water, Sahic and her friends heard gunshots ahead of them. Bullets stroke the ground around their feet.¹⁹⁶⁵ Sahic saw the flash from a machine gun, the so-called “death sower”, shooting at them.¹⁹⁶⁶ They ran and sought shelter in an orchard on the left side of the street. Ifeta Sahic and Sabina Zekovic lay down on the grass. Vildana Kapur leaned against a tree and was then shot in her left leg.¹⁹⁶⁷ Sahic sought the assistance of policemen dressed in civilian clothes¹⁹⁶⁸ (off-duty policemen according to the witness) at the canteen located in the meadow nearby,¹⁹⁶⁹ which belonged to the police station. Vildana Kapur was then taken to the hospital.¹⁹⁷⁰ Although the witness was of a young age at the time of the event, the Trial Chamber finds her testimony credible and reliable. The Trial Chamber has no doubt that the incident occurred as Sahic recounted it.

553. The Trial Chamber is also satisfied beyond reasonable doubt that the three girls were civilians and that they could not be confused with members of an armed force. On the morning of the incident, the weather was fine, the friends were dressed in civilian clothes (tee-shirts and denims) and were engaged in a civilian activity.

554. The Defence argues that it is not possible to determine the source of fire¹⁹⁷¹ because no on-site investigations were carried out to determine “the angle of descent in which the projectile, or part of the projectile, entered the body of Vildana Kapur”.¹⁹⁷² The Trial Chamber does not consider the absence of on-site investigations or technical data concerning the point of entry of a bullet into the body critical to a determination of the source of fire. Sahic testified that she could see the SRK front line from Stara Cesta Street and that often the Stara Cesta Street area was targeted.¹⁹⁷³ That front line was in the area north of Stara Cesta Street called Poljine, at a distance of approximately 300-400 metres from the spot where Vildana Kapur was shot.¹⁹⁷⁴ Periodically, flashes of gunfire would be seen coming from Poljine.¹⁹⁷⁵ Sahic further testified that on the day of the shooting, while she and her girlfriends were walking on Stara Cesta Street, the machine-gun flashes were visible in front of them on the SRK side of confrontation lines.¹⁹⁷⁶ On the 360 degree photograph of the area where the shooting occurred, she pointed out a group of white houses beneath a rocky ridge with a dome on it where the shots had come from.¹⁹⁷⁷ The Defence Witness DP14 testified that the area approximately north of Stara Cesta Street and the orchard was held by “VRS forces”.¹⁹⁷⁸ The Trial Chamber has no reason not to believe that Sahic was in a position to determine where the bullets striking the ground around her and her girlfriends came from. The Trial Chamber is satisfied beyond reasonable doubt that the bullet which wounded Vildana Kapur was fired from SRK-held territory.

555. The Defence suggests that the intended target was not the victim but the police canteen because “this canteen was beneath the road they were walking, which means it was in the same direction of the shooting, when firing from the positions of SRK forces”.¹⁹⁷⁹ A Defence witness further points out that in principle, the surrounding forest¹⁹⁸⁰ and the orchard where the girls sought shelter would be a very difficult terrain for observation and for seeing targets.¹⁹⁸¹ The Trial Chamber does not find that the intended target could have been the canteen of the police forces. There is no evidence to support the Defence’s assertion that the victim was shot during an exchange of fire. Sahic testified that there had been no shooting on the morning of the 5 August 1993.¹⁹⁸² She also testified that there were no military vehicles or other military equipment at the time of the shooting in the vicinity of the incident.¹⁹⁸³ The account of the incident by Sahic conclusively demonstrates that the first bullets were clearly shot at Sahic and her friends, striking the ground around their feet while they were walking along Stara Cesta Street. The shooting continued while they ran for shelter to the orchard, indicating that they were the intended target. And despite their having moved into the orchard, the shooting continued. Furthermore, and contrary to the Defence’s assertion, the canteen of the police station was not in the direct vicinity of where the girls were walking but further down the road, in a meadow, thus not in the line of fire.¹⁹⁸⁴ The Trial Chamber is convinced that the three girlfriends were deliberately targeted. Therefore, the Trial Chamber finds that Vildana Kapur, a civilian, was deliberately targeted from SRK-controlled territory.

     (iv) Scheduled Sniping Incident 14¹⁹⁸⁵

556. Witness L testified that on 7 October 1993 he broke his habit of visiting his parents – who lived in an area subject to frequent gunfire at almost exclusively civilians in Kobilje Glava –¹⁹⁸⁶ at night and brought them bread at dawn.¹⁹⁸⁷ He was walking downward¹⁹⁸⁸ along Stara Cesta Street in the direction of Vogosca, pulling a trolley with his right hand, when he heard a burst of gunfire.¹⁹⁸⁹ Two or three bullets passed by him, then one bullet hit the upper part of his left arm.¹⁹⁹⁰ The bullet exited from the outer side of the arm. Witness L sought shelter in a ditch on the side of the road, to his right.¹⁹⁹¹ He was later assisted by the driver of a passing car,¹⁹⁹² who took him to an infirmary. Later, Witness L went to the Kosevo hospital for treatment.¹⁹⁹³ The incident was reported to the police, which drew a note tendered into evidence.¹⁹⁹⁴ That note attests that Witness L was wounded in the vicinity of the “Lelja Checkpoint ”.¹⁹⁹⁵ During cross-examination, Witness L testified that he was not aware of the existence of a “Lelja Checkpoint ” in the vicinity of the Stara Cesta Road.¹⁹⁹⁶

557. The Defence submits that the civilian status of the victim was not established.¹⁹⁹⁷ It argues, inter alia, that because Witness L was pulling a cart, he was “surely bringing goods for necessities of the army, maybe he was bringing bread or food also” to the police canteen located there.¹⁹⁹⁸ The Trial Chamber notes that such assertion was not put to the witness. To pull a cart is not in itself an activity which may put one on notice that an ABiH combatant is approaching. The Trial Chamber sees no reason to doubt that Witness L was carrying bread in the cart he was pulling the day of the incident. The Defence further argues that because of his age, the victim was “certainly a military conscript”.¹⁹⁹⁹ Witness L testified that prior to June 1993, he was a member of the territorial defence and wore a uniform,²⁰⁰⁰ and that in June 1993, he became a member of the civil defence.²⁰⁰¹ He was to “distribute humanitarian aid to the population”, “to look after the cleanliness of streets and the whole neighbourhood”.²⁰⁰² Witness L was dressed in civilian clothes, a multi-coloured jumper and a pair of jeans.²⁰⁰³ The Trial Chamber sees no reasons either to doubt the testimony of Witness L in this regard, nor that on the morning of 7 October 1993, he was dressed in civilian clothes and did not carry arms. Yet, the Trial Chamber is left with some doubt as to whether his status of civilian was reasonably clear to any armed force on that morning. Witness L testified that the incident occurred in the “early morning hours”,²⁰⁰⁴ that although there was no fighting in the area, the area was full of troops.²⁰⁰⁵ The evidence also shows that there was a check-point in the vicinity of the incident. Because it is reasonably possible that, in view of the location of the victim and other conditions such as the presence of troops and a check-point in the vicinity, SRK forces reasonably considered Witness L to be an enemy soldier advancing toward the frontline, the Trial Chamber is left with some doubt as to whether Witness L was deliberately targeted as a civilian. Therefore, the Trial Chamber cannot conclude beyond reasonable doubt that Witness L was deliberately targeted as a civilian and cannot consider this incident as representative of a campaign of fire against civilians.

     (v) Other Evidence of Targeting of Civilians from the area of Kobilja Glava

558. The Trial Chamber also heard evidence about another incident representative of small arm fire against civilians taking place southeast of Kobilja Glava.

559. Mirsad Kucanin remembered investigating the shooting of a 2-year old girl named Elma Jakupovic which had taken place during the evening of 20 July 1993 in Kosevo brdo.²⁰⁰⁶ The victim was hit in the forehead while asleep in her home²⁰⁰⁷ in a neighbourhood where there was no military activity.²⁰⁰⁸ Kucanin believed that the shooting “was simply fire opened randomly at a civilian locality.”²⁰⁰⁹ The bullet, which lodged itself in a sofa, was recovered and identified as originating from a 7.9- mm calibre weapon.²⁰¹⁰ Kucanin’s investigation determined that the source of fire lay in an area called Kromolj,²⁰¹¹ which is located in SRK-controlled territory²⁰¹² north of Kosevo stadium,²⁰¹³ and which was known as a source of “constant fire”.²⁰¹⁴

560. In addition to shooting incidents, the Trial Chamber heard evidence about shelling taking place in the general area of Vogosca. Patrick Henneberry, Senior UNMO at the time, remembered seeing civilian houses in that area being hit in mid-September 1992 by heavy weapon fire “Dozens and dozens of times,”²⁰¹⁵ adding that UN observation posts had determined that this fire came from SRK-controlled territory.²⁰¹⁶ Jeremy Hermer, a UNMO at LIMA positions from August 1993 to January 1994,²⁰¹⁷ observed a shelling incident taking place in late November or December 1993 during which a civilian house on the Zuc hill disintegrated in a ball of fire.²⁰¹⁸ A UN team investigated the incident and determined that there had been no target of military value in the area of the hill and that two civilians had been killed by the explosion.²⁰¹⁹ Hermer also remembered that “the Lukavica team [of UN observers monitoring SRK-controlled territory reported] … outgoing fire which coincided, almost to the second, with the impact which [Hermer] observed on Zuc [hill]”.²⁰²⁰
     4. Pattern of Fire into ABiH-held Areas of Sarajevo

561. A general pattern of fire was noticed in Sarajevo during the Indictment Period. The evidence is that the shelling of the city was fierce in 1992 and 1993. Mole, Senior UNMO from September to December 1992, testified that throughout the three months he spent in Sarajevo, there was not a single day where there were no shell impacts in the city. There was continual background noise of small arms and mortars and artillery.²⁰²¹ Fatima Pita, whose daughter was shot at the entrance of their house on 13 December 1992,²⁰²² and Hadzic likened the frequency of shells falling in their neighbourhoods at that time as being like daily drops of rain.²⁰²³ Mandilovic, surgeon at the State Hospital, testified similarly that: “As far as I remember, the most intensive shelling took place in the second half of 1992, in 1993, and that during 1994, the shelling slowly subsided”.²⁰²⁴ Kupusovic concurred and testified that in winter 1993 and the beginning of 1994, the shooting was intensified, “smaller massacres” (killing of 4 or 5 people) occurred, usually at localities where people would gather for such activities as fetching water or buying bread.²⁰²⁵ Within this overall pattern, with the exception of the immediate post-Markale period, there were daily and weekly fluctuations. Cutler, an officer who served as a senior UNMO in Sarajevo from 26 December 1992 to 15 March 1993, noticed that the shelling seemed to have troughs and peaks, with periods of several days when there was very little firing, followed by days of extreme activity.²⁰²⁶ Even so, the lulls were relative. As with shelling, the sniping followed patterns of troughs and peaks. The sniping was continuous and frequent, nearly every day, although some days would be more intense than others.²⁰²⁷ Witness Y posted in Sarajevo during the first part of 1993 observed that the shelling within the city, while not of the same intensity, was deadly because of its random nature.²⁰²⁸ Tucker, a British officer who served as assistant to general Morillon from October 1992 to March 1993, added that “there was daily random shelling of various parts of the city. There was constant sniper fire and there were intense periods of small arms and artillery fire around the perimeter from time to time as attacks by one side or the other continued. It was a horrible situation”.²⁰²⁹

562. The most intense period was in February 1994,²⁰³⁰ prior to the UNSC Resolution 900, comprising an ultimatum to withdraw all the weapons further away from town. In March 1994, after the UN-demand was complied with, a “calm period” began with regard to the shelling and sniping.²⁰³¹ Other witnesses testified that following the Markale incident of 5 February 1994, the shelling of the city ceased almost completely for some weeks. Rose recalled the way the overall situation changed after the Markale incident in that “it created an opportunity for progress towards peace. […] That transformed the whole of Bosnia. […] And indeed, Sarajevo started to slowly return to normality.”²⁰³² In the wake of Markale, Thomas observed that after the cease-fire agreement until he left in July 1994, there was no artillery fire into the city, but the sniping resumed on 1 March 1994 and was actually increasing in intensity when he departed.²⁰³³ Rose added that the withdrawal of the heavy weapons from Sarajevo (pursuant to the February 1994 agreement) allowed the Bosnian Serb to re-deploy them “to other places such as Gorazde or Bihac, where they were able to intensify the fighting.”

563. The evidence of Hvaal supports that of Thomas that sniping was still on-going in 1994. He said that between September 1992 and August 1994 he observed, while driving and walking around Sarajevo, “people being targeted almost every day” and concluded that they were “definitely deliberately targeted.”²⁰³⁴ He actually saw persons being hit, between approximately 30-50 times per month.²⁰³⁵ About the pattern of fire in 1994, Mandilovic noted that “looking at the situation as a whole, of course this does not mean that there were not a great many casualties in the latter half. The shelling might have been less frequent, but their destructive power was still very great.”²⁰³⁶ Witnesses testified that periods of relative inactivity in the shelling lulled civilians into a false sense of security, causing them to venture out of hiding, thereby exposing themselves. This particularly applied to children. Zaimovic said about them: “They would go silent for a day or two, then the children would feel more relaxed, go out into the streets, and then they would open fire and kill those innocent children ”.²⁰³⁷
     5. Were Sniping and Shelling Attacks on Civilians in ABiH-held Areas of Sarajevo Committed with the Aim to Spread Terror?

564. The Prosecution alleges that the underlying reason for the “campaign” of sniping and shelling was that of terrorizing the civilian population of Sarajevo.²⁰³⁸ The Defence military expert, Radovan Radinovic, argued that the actions of the SRK were not aimed at terrorizing the civilian population in Sarajevo.²⁰³⁹

565. The Defence claims that the pattern of fire into the city of Sarajevo shows that the Serbian forces wanted peace, harboured no territorial ambition and merely wished to “defend” territory regarded as belonging to the Bosnian Serbs, and which was already within the purview of the SRK. To this end, SRK’s operations were defensive in nature, not aggressive.²⁰⁴⁰ Many Defence witnesses who were SRK front-line infantry frequently gave evidence that their orders were to not fire at civilians, whom they defined as women, children and anyone not wearing a uniform.²⁰⁴¹ Some considered persons to be legitimate targets if they were armed.²⁰⁴² They were only to fire if attacked.²⁰⁴³

566. Tucker explained that indeed “from about December 1992 onwards, the Bosnian Serb side wanted peace. They wanted an overall cease-fire in order to consolidate the territory of which they had taken control of.” The Bosnians, on the other hand, could not accept a cease-fire which “meant accepting the status quo.”²⁰⁴⁴ Rose also said that it was true that “the forces commanded by General Galic wished not to have war, on the contrary, to have global cease-fire.” He added though, that the Bosnian Serb Army “was in the military ascendancy and that it was in their interest to halt the fighting at the moment, politically.”²⁰⁴⁵ Rose added that the international community had some difficulties in accepting peace -plans: “There was certainly a desire amongst the international community not to reward the aggressor.”²⁰⁴⁶ In re -examination, the witness repeated that “the Serbs could never be described as peacemongers. They were the aggressors. They had taken much of Sarajevo as well as Bosnia”.²⁰⁴⁷

567. That evidence is supported by other evidence in the Trial Record from a considerable number of UN military personnel that, as early as autumn 1992, sniping and shelling fire onto the city of Sarajevo from SRK-held territories was not justified by military necessity, but rather was aimed at terrorizing the civilian population in ABiH-held areas of Sarajevo.

568. Referring to the battle around Otes in early December 1992, Richard Mole, Senior UNMO in Sarajevo from September to December 1992, recounted that “all the fire that was incoming to the city of Sarajevo was analyzed along what the objective of that fire would be. If it wasn’t seen to be in response to any military events, one can only assume that the indiscriminate fire was being used to fashion terror because there was no military objective”.²⁰⁴⁸ Pyers Tucker, the military assistant to General Morillon in Sarajevo from October 1992 to March 1993, stated that he believed that there were no major attempts to capture Sarajevo after December 1992 “but there was non-stop shelling of the citizens of Sarajevo, and the siege of Sarajevo and the prevention of food aid and the repair of utilities continued throughout.” He also maintained that the “analysis of the targets that were […] fired against, indicates very strongly that the heavy artillery was not being used principally against military targets, but was being used in order to terrorise the civilian population”; officials at the UNPROFOR Headquarters interpreted these elements, overall “as being the continuation of the terrorism of the population of Sarajevo.”²⁰⁴⁹

569. Patrick Henneberry, an officer with UNPROFOR from July 1992 to February 1993, remarked that SRK positions around LIMAs 10 and 11 would open fire frequently around supper-time, and the reason for this pattern was, in his mind, to terrorise people.²⁰⁵⁰ He elaborated that Bosnian Serb troops positioned around LIMA 7 mostly fired “primarily to invoke terror”, and this was true in part also for positions around LIMAs 10 and 11. He added that shells were indeed fired from “positions 10 and 11”, “in a manner that kept people running building to building, 'on their toes' [.]”²⁰⁵¹ In general terms, he stated that this strategy was clearly planned:

     [o]n the civilian side, the impact of the psychological warfare application was working. They were indeed terrorised and on edge.²⁰⁵²

570. Carl Harding, a UNMO posted in Sarajevo from late July 1992 to 23 January 1993, concurred. He stated that “a single round of artillery or mortar to land at any time and virtually anywhere within the city” was such a normal occurrence that they even avoided to report it. Many of these rounds were not aimed at the military targets or at the front lines; this way of shelling achieved maximum surprise and increased the psychological effects on the civilians of the city with a minimum military effort.²⁰⁵³

571. Witness Y, a member of the UNPROFOR posted in Sarajevo in the first part of 1993, explained that in his opinion “the objective they [SRK forces] pursued was to make every inhabitant in Sarajevo feel that nobody was sheltered or protected from […] the shooting and that the shooting was not aimed at military objectives but rather to increase the helplessness of the population […] and was aimed at cracking them and to make them collapse, nervously speaking[.]”²⁰⁵⁴ He reiterated the same comment with regard to sniping: “The idea was to exercise psychological pressure, and there we realised that the objectives were very specifically civilian ones.”²⁰⁵⁵

572. Jacques Kolp, UNPROFOR Liaison Officer with the ABiH from March 1993 to November 1994, considered that “as far as the local population is concerned, the objective [of sniping] was clear, is to create a climate of terror and atmosphere of terror in the centre of the city, to make people feel on the edge.”²⁰⁵⁶ John Hamill, a major with the Irish Army and a UNMO between May 1993 and July 1994, also believed that sniping by the SRK was used as an instrument by the military authorities “as an instrument of terror against the opposing side.”²⁰⁵⁷

573. General Van Baal, UNPROFOR Chief of Staff in Bosnia-Herzegovina in 1994, testified that sniping in Sarajevo was “without any discrimination, indiscriminately shooting defenceless citizens, women, children, who were unable to protect and defend themselves, at unexpected places and at unexpected times” and that this led him to conclude that its objective was to cause terror; he specified that women and children were the predominant target.²⁰⁵⁸ A similar assessment was provided by Francis Briquemont, Commander of UN forces in BiH from July 1993 to January 1994, for whom “the objectives [of the campaign] were basically civilians in order to put pressure on the population”.²⁰⁵⁹ He added that in a number of cases, either experienced by himself personally or by others, the SRK conduced what he called “quasi-sniping or playing at snipers,” a tactic of hitting a target with the aim of actually not neutralising it; this terrorised the population.²⁰⁶⁰

574. Morten Hvaal, a Norwegian journalist covering the conflict from September 1992 to August 1994, observed a similar pattern. Hvaal, recounted that quite often he would witness civilians being hit by sniper’s fire on the street without being killed on purpose, in order to attract more persons to the spot and shoot them, too. He explained that this strategy had no military purpose, but seemed a “fairly morbid kind of fun.”²⁰⁶¹

575. With regard to shelling, Aernout Van Lynden, a Dutch journalist who visited Sarajevo several times during the Indictment period,²⁰⁶² reached the same conclusion. He found that sporadic fire “here and there” did not serve any military goal, but “the effect was to cause fear with anyone, because people feared that whenever you went outside your house, you could – you were in danger; you were never safe.”²⁰⁶³ Similarly, Ashton, who arrived in Sarajevo in July 1992 as a photographer, recalled that a student of medicine specifically remarked in October 1992 that the sniping in Sarajevo was “to terrorize and humiliate the population[,] a way that the Serbs were trying to get their point across.”²⁰⁶⁴ This kind of conversation was repeated in 1993 and the first half of 1994 with several people,

     and the results were much the same from different people that this was active terrorism, it was an act of horror. [They said: t]hey wanted to horrify people, they wanted to destroy us[.] They all felt that at some point they were going to be killed. They felt that there was no hope. All hope had been given up for a lot of the people there, and there was just a sense of complete abandonment.²⁰⁶⁵

576. The Prosecution submits that the purpose behind the campaign of targeting civilians, which was built on the territorial, topographical,²⁰⁶⁶ weaponry and munitions²⁰⁶⁷ advantages enjoyed by the SRK over its opponent,²⁰⁶⁸ was a crude application of pressure on the BH government. It explains that the purposes of the campaign was to undermine the government’s popular support from within the city to maintain the conflict, and to undermine the morale of the ABiH combatants, by reminding them that so long as they fought, their families behind them were in more danger than themselves.²⁰⁶⁹ The Trial Chamber understands that submission as pointing to the ultimate purpose of the campaign of sniping and shelling against civilians in Sarajevo.

577. Witness Y’s evidence supports that submission. Elaborating on the “specific mission that the snipers on the Serbian side had”, which was “to exercise psychological pressure on the civilian population, and there we realised that the objectives were very specifically civilian ones,”²⁰⁷⁰ he stated that: “I think that the fact that when one sees a population under fire the way it was, whatever its nature is, to see children, women, men, that makes people desperate. And I think that this is obviously a means of pressure on the local authorities to force them to act differently.”²⁰⁷¹ This explanation is consistent with that given by Tucker who testified that at the end of October 1992 was “the last major Bosnian Serb military offensive” in the Sarajevo theatre of armed conflict; “from then on, they basically carried out defensive operations and tried to terrorise the Bosniak population and the Presidency into accepting this status quo”.²⁰⁷²
     6. Number of Civilians Killed or Injured in ABiH-controlled Parts of Sarajevo during the Indictment Period

578. The Prosecution tendered an expert report prepared by Ewa Tabeau and others ²⁰⁷³ (the “Tabeau Report”) concerning the number of civilians killed or injured during the Indictment Period within ABiH -controlled areas of Sarajevo. The authors of the Tabeau Report consulted several sources,²⁰⁷⁴ including the results of a 1994 survey of approximately 85,000 households, in the Sarajevo municipalities of Centar, Novi Grad, Stari Grad, Novo Sarajevo, Ilidža, and Vogosca (“the 1994 Survey”).²⁰⁷⁵ The authors validated the survey against other sources of information concerning the population in the period.

579. According to the Tabeau Report, the minimum number of persons killed within the confrontation line in Sarajevo during the indictment period was 3,798, of whom 1,399 were civilians. The minimum number of wounded for the same period was 12,919, including 5,093 civilians.²⁰⁷⁶ Women, children (up to 17 years of age), and the elderly (aged 70 and over) were among the casualties, with at least 670 women, 295 children, and 85 elderly killed, and 2,477 women, 1,251 children, and 179 elderly wounded.²⁰⁷⁷ The Tabeau report finds that shelling and sniping and other arms fire were the most significant causes of injury or death.²⁰⁷⁸ About 932 civilians were killed and 3,405 were injured in shelling attacks, and about 253 civilians were killed and 1,296 were injured in sniping incidents. Other arms fire accounted for the killing of 101 civilians and the wounding of 288 more.²⁰⁷⁹ The monthly average of civilians killed fell from 105 in September to December 1992, to around 64 in 1993, to around 28 in the first six months of 1994.²⁰⁸⁰ The Tabeau Report does not determine the number of civilians killed or wounded as result of intentional targeting.²⁰⁸¹

580. The Defence tendered an expert report prepared by Dr. Svetlana Radovanovic in answer to the Tabeau Report. Radovanovic did not dispute that the conflict in the city led to “human casualties”,²⁰⁸² but neither did she attempt to determine their number. Instead, she challenged the main conclusions of the Tabeau Report, resorting to arguments which essentially misinterpret or distort the information found in the Tabeau Report. For example, she questioned the reliability of the sources used and described the 1994 Survey as a “pile of amateurishly obtained reports,”²⁰⁸³ adding that no “precise methodological explanations”²⁰⁸⁴ were provided on the manner in which this survey was conducted. Radovanovic said during her testimony that she had not consulted the sources used in the Tabeau Report.²⁰⁸⁵

581. The Trial Chamber considers that the main conclusions of the Tabeau Report are supported by other evidence in the Trial Record, including evidence tendered by the Defence,²⁰⁸⁶ which shows that the conflict in Sarajevo led to the death or injury of a large number of civilians.²⁰⁸⁷ The Trial Chamber recalls that the Tabeau Report presents minimum numbers, from only six municipalities. Bearing in mind these limitations, the Trial Chamber finds beyond reasonable doubt that many hundreds of civilians were killed and thousands were injured in ABiH-controlled areas during the Indictment Period.
     7. Conclusion on Whether there was a Campaign of Sniping and Shelling in Sarajevo by SRK Forces

582. This conclusion on whether there was a campaign of sniping and shelling fire in Sarajevo against the civilian population of Sarajevo conducted by SRK forces during the Indictment Period is that of the majority of the Trial Chamber. Judge Nieto-Navia, dissenting, expresses his view in the separate and dissenting opinion appened to this Judgement.

583. The Trial Chamber stated earlier that it understood the term “campaign” in the context of the Indictment to cover military actions in the area of Sarajevo involving widespread or systematic shelling and sniping of civilians resulting in civilian death or injury. The Majority believes that such a campaign existed for the reasons given below.

584. All residents of ABiH-held areas of Sarajevo who appeared before this Trial Chamber testified to the effect that no civilian activity and no areas of Sarajevo held by the ABiH seemed to be safe from sniping or shelling attacks from SRK-held territory. The Majority heard reliable evidence that civilians were targeted during funerals, in ambulances, in hospitals, on trams, on buses, when driving or cycling, at home, while tending gardens or fires or clearing rubbish in the city. Sniping incidents 22 in Dobrinja and 24 in Novo Sarajevo examined above are examples of how civilians were targeted while using public transport vehicles running during cease-fires. In sniping incident 20, the witness Akif Mukanovic recounted in detail how his wife was killed by a bullet while at home in Hrasno. In sniping incident 18, the victim recounted how she was targeted while cycling back from the hospital in Dobrinja; in sniping incident 15, the victim told the Trial Chamber how he was targeted while collecting rubbish in the area of Hrasno under the escort of the UNPROFOR. Witnesses G and K both testified about how they were repeatedly and deliberately targeted in Kobilja Glava. Other witnesses testified about civilians being targeted while crossing intersections in Novo Sarajevo, in Hrasno, in Dobrinja, in Novi Grad, in Alipasino Polje, or in Stari Grad. The scheduled sniping incidents 23 (Momjilo ) and 25 (Alipasino Polje) are representative of such targeting from SRK-controlled territory. Residents of urban or rural areas of Sarajevo testified about the targeting of civilians fetching water and detailed evidence to prove examples of such targeting was adduced, such as sniping incident 6 in Dobrinja IV, shelling incident 2 in Dobrinja C5, sniping incidents 16 and 17 in Novi Grad, sniping incident 9 in Kobilja Glava. Civilians were targeted while shopping (shelling incident 5 in Stari Grad), while gathered in square (shelling incident 4 in Alipasino Polje) or during sportive festivities organised on a public day (shelling 1 in Dobrinja). Even children were targeted in schools, or while playing outside, riding a bicycle, near their home, or in the street. Sniping incidents 2 (Sikoraca), 8 (Sedrenik) and 27 (Hrasno) and shelling incident 3 (Alipasino Polje) examined above are representative of such targeting. The most populated areas of Sarajevo seemed to be particularly subject to indiscriminate or random shelling attacks. Hadzic testified about every single part of Dobrinja, a very populated neighbourhood, exposed to severe shelling originating from SRK -controlled territory. A resident of Alipasino Polje, Diho, testified about entire façades of houses on Ante Babica street “pock-marked” with shell pieces and grenades of all calibres and other apartment blocks targeted by SRK forces. Photographs adduced into evidence show the extensive destruction of civilian inhabitations in Sarajevo during the Indictment Period.

585. The natural and urban topography of the city of Sarajevo, such as ridges and high-rise buildings, provided vantage-points to SRK forces to target civilians moving around the city. The Trial Chamber heard evidence of the existence of specific areas throughout the city of Sarejevo which became notorious as sources of sniping fire directed at civilians. In the general area of Grbavica, witnesses testified that fire was opened against civilians from different high-rise buildings on the southern side of the Miljacka River, in the SRK-controlled neigbourhood of Grbavica. These positions allowed soldiers to “literally shoot down streets” in the central part of Sarajevo, exposing all pedestrians at intersections, as well as cars, buses and trams travelling from the east to the west of the city, to sniper fire. The main thoroughfare of Sarajevo, part of which was called Marshal Tito Boulevard, became known as “Sniper Alley” as it was particularly prone to regular gunfire. The Trial Chamber recalls the testimony of Van Lynden, who said that 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”. Containers were set up at intersections, such as near the Presidency and Energoinvest buildings and in the proximity of the Holiday Inn, to shield civilians against fire coming from the tall buildings in Grbavica. The central district of Marin Dvor, in particular Marin Dvor square, was also particularly targeted from this area. Fuad Sehbajraktarevi c, 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.” Residents of the area of Hrasno described the small-arms fire they experienced from the SRK -controlled area of Ozrenska Street, on Hrasno Brdo, as well as from what was referred to as the shopping center building of Grbavica. Throughout the city of Sarajevo, witnesses described points in SRK-controlled territory, such as the Jewish Cemetery, the Orthodox Church and the School for the Blind in the area of Nedjarici, Spicasta Stijena, Mount Trebevic and Baba Stijena or Orahov Brijeg as prominent sources of sniper fire against civilians. The same pattern of regular fire at civilians from SRK-controlled positions or areas appears consistently throughout ABiH-held areas of the city of Sarajevo during the Indictment Period.

586. The evidence in the Trial Record also discloses that although civilians adapted to that hostile environment by closing schools, living at night, hiding during the day in their apartment or cellar, moving around the city of Sarajevo as little as possible, setting up containers and barricades to provide shelter against sniping fire, they were still not safe from sniping and shelling fire from SRK-controlled territory. Witnesses recounted how civilians tilled at night, fetched water or collected wood at night or when the visibility was reduced or developed alternative routes to traverse the city to avoid sniping fire directed against civilians seen from SRK-controlled territory. Nevertheless, they were still seen and targeted. Sniping incidents 5 (Novo Sarajevo) and 10 (in Hrasno) are representative of the targeting of civilians who were seen through gaps between containers set up along streets and main avenues in the city of Sarajevo and were targeted from SRK-controlled territory. The testimony of Akir Mukanovic, an ABiH soldier, is speaking for itself: he felt safer at the frontline than anywhere else in Sarajevo.

587. The evidence of residents of Sarajevo or victims of attacks is supported by evidence from international military personnel present in Sarajevo during the Indictment Period, which testified uniformly that civilians in Sarajevo were targeted by small arm fire or shelling from SRK-controlled areas. The Majority particularly recalls the testimony of Hamill, an UNPROFOR officer present in Sarajevo almost throughout the Indictment Period, that few shelling incidents stand out in his mind because there was “a whole series of attacks that went on killing civilians in the city of Sarajevo”. An UNPROFOR report concluded that in view of the unusually high volume of fire one day of 1993 in the area of Stari Grad (400 artillery and mortar impacts recorded), there was no doubt that civilians were targeted. UNPROFOR representatives who carried out investigations following shelling attacks in Dobrinja noticed that shelling affected very populated streets in Dobrinja.

588. Both Ashton and Hvaal, journalists, also observed that the majority of the targets they saw were civilians. They testified that they saw civilians being shot at almost every day. Ashton testified about SRK positions he visited and where gunners admitted firing indiscriminately in the city. He had no doubt that SRK forces shot civilians.

589. On many occasions, international military personnel, residents of ABiH-held areas of Sarajevo or visitors encountered difficulties to determine with certainty the source of fire on civilians. The Majority recalls that the conflict in the city of Sarajevo was mainly static; apart from some changes, most of the confrontation lines remained unchanged during the Indictment period. ABiH-held territory, including most of the city, was almost completely surrounded by SRK forces and distances were so short in some areas (see the map 1 attached in annex D to this Judgement) that one belligerent party could fire into the territory of the other party and also over that territory into its own positions. Evidence to the effect that ABiH forces attacked their own civilians was adduced at trial. UN representatives stationed in Sarajevo testified that, during the conflict, information had been gathered indicating that elements sympathetic or belonging to the ABiH may have shelled on occasions the Muslim population of Sarajevo. More generally, such elements would have engaged in behaviour objectively putting civilians in ABiH-controlled territory at risk in order to draw international sympathy. The Majority cannot exclude that this firing occurred on some occasions to attract the attention of the international community. However, only a minimal fraction of attacks on civilians could be reasonably attributed to such conduct, which would be, in any case, difficult to carry out or keep secret for long. The protective barriers faced the SRK side. The Majority also accepts that stray bullets may have struck a number of civilians. But again, stray bullets, being by definition random in their direction and lacking a target, could not possibly explain but a fraction of incidents involving civilians. It is finally possible that some civilians were shot in the honest belief that they were combatants. Again, while not excluding this possibility, the Majority can think of few other examples of combat rivaling the 1992-94 Sarajevo conflict for close contact. In such circumstances, in the relatively cramped fighting conditions of Sarajevo, the accidental targeting of civilians could not be said to represent the whole real course of events that took place in Sarajevo. The evidence in the Trial Record conclusively establishes that the pattern of fire throughout the city of Sarajevo was that of indiscriminate or direct fire at civilians in ABiH-held areas of Sarajevo from SRK -controlled territory not that of combat fire where civilians were accidentally hit.

590. Fire into ABiH-held areas of Sarajevo followed a temporal pattern. Fire into that city was intense between September and December 1992, still important throughout the year 1993, with daily or weekly fluctuations (days of little shootings followed by days of extreme activity), with an intensification of fire in winter 1993 and up to the wake of the Markale shelling incident in February 1994 and then subsided. The Majority recalls the testimony of Mole, present in Sarajevo between September and December 1992, who said that there was a constant background noise of small arm, mortar and artillery fire. Witnesses emphasised that although there were periods of relative inactivity of shelling during the year 1994, people venturing outside were still targeted.

591. The Majority is convinced by the evidence in the Trial Record that civilians in ABiH-held areas of Sarajevo were directly or indiscriminately attacked from SRK -controlled territory during the Indictment Period, and that as a result and as a minimum, hundreds of civilians were killed and thousands others were injured.

592. The evidence in the Trial Record reveals the reason why civilians in ABiH-held areas of Sarajevo were targeted from SRK-controlled territory. The evidence, especially in relation to the nature of the civilian activities targeted, the manner in which the attacks on civilians were carried out and the timing and duration of the attacks on civilians, consistently shows that the aim of the campaign of sniping and shelling in Sarajevo was to terrorise the civilian population of the city. UN military personnel present in Sarajevo during the Indictment Period who observed and analysed the attacks launched into the city not made in relation to military objectives concluded that the purpose of the attacks was to spread terror among the civilian population. Mole noticed already early December 1992 that incoming indiscriminate fire to the city of Sarajevo was not in response to military events but to “fashion terror ”. Tucker believed that there was no major attempt to capture Sarajevo after December 1992, but there still were non-stop shelling and sniping attacks launched into the city to terrorise the civilian population. Henneberry, Senior UNMO and later UNPROFOR commander of the North LIMA side of Sarajevo from July 1992 to February 1993, noticed that frequent fire around suppertime for no reason or for making “people running building to building on their toes”; it was for him an “application of psychological warfare” on civilians and it was working because “they were indeed terrorised and on edge”. For Witness Y, “the objective they [the SRK] pursued was to make every inhabitant in Sarajevo feel that nobody was sheltered or protected from […] the shooting and that the shooting was not aimed at military objectives but rather to increase the helplessness of the population”. Other UN military personnel shared that view: Harding, Kolp, Hamill, Van Baal and Briquemont all testified that the attacks by sniping and shelling on civilians in the city of Sarajevo to spread terror among that population was an instrument by the Bosnian Serb military authorities to impose a psychological pressure on the civilian population of the city. Van Baal even emphasised that women and children were the predominant target. Media representatives, Ashton and Hvaal, had the same impression that civilians were being terrorised. Witness Y finally emphasised that for the ABiH authorities to see the population of Sarajevo under fire was a means to make them act differently.

593. In view of the evidence in the Trial Record it has accepted and weighed, the Majority finds that the attacks on civilians were numerous, but were not consistently so intense as to suggest an attempt by the SRK to wipe out or even deplete the civilian population through attrition. The attacks on civilians had no discernible significance in military terms. They occurred with greater frequency in some periods, but very clearly the message which they carried was that no Sarajevo civilian was safe anywhere, at any time of day or night. The evidence shows that the SRK attacked civilians, men and women, children and elderly in particular while engaged in typical civilian activities or where expected to be found, in a similar pattern of conduct throughout the city of Sarajevo. The Majority finds that the only reasonable conclusion in light of the evidence in the Trial Record is that the primary purpose of the campaign was to instill in the civilian population a state of extreme fear.

594. In sum, the Majority finds that a series of military attacks on civilians in ABiH-held areas of Sarajevo and during the Indictment Period were carried out from SRK-controlled territories with the aim to spread terror among that civilian population. The Majority accepts the Prosecution’s stand that as such, these attacks carried out with a specific purpose, constituted a campaign of sniping and shelling against civilians.
     D. Legal Findings
     1. Offences under Article 3 of the Statute

595. In the present instance, it is not disputed that a state of armed conflict existed between Bosnia-Herzegovina and its armed forces on the one hand, and the Republika Sprska and its armed forces, on the other. There is no doubt, from a reading of the factual part of this Judgement, that all the criminal acts described therein occurred not only within the framework of, but in close relation to, that conflict.

596. The Trial Chamber is satisfied beyond reasonable doubt that the crime of attack on civilians within the meaning of Article 3 of the Statute was committed against the civilian population of Sarajevo during the Indictment Period. In relation to the actus reus of that crime, the Trial Chamber finds that attacks by sniping and shelling on the civilian population and individual civilians not taking part in hostilities constitute acts of violence. These acts of violence resulted in death or serious injury to civilians. The Trial Chamber further finds that these acts were wilfully directed against civilians, that is, either deliberately against civilians or through recklessness.

597. The Majority is also satisfied that crime of terror within the meaning of Article 3 of the Statute was committed against the civilian population of Sarejevo during the Indictment Period. In relation to the actus reus of the crime of terror as examined above, the Trial Chamber has found that acts of violence were committed against the civilian population of Sarajevo during the Indictment Period. The Majority has also found that a campaign of sniping and shelling was conducted against the civilian population of ABiH-held areas of Sarajevo with the primary purpose of spreading terror.
     2. Offences under Article 5 of the Statute

598. Based upon the facts found in the factual part of this Judgement, the Trial Chamber finds that the required elements under Article 5 of the Statute that there must be an attack, that the attack must be directed against any civilian population, and that the attack be widespread or systematic have been satisfied. The Trial Chamber also finds that the crimes committed in Sarajevo during the Indictment Period formed part of an attack directed against the civilian population and this would have had been known to all who were positioned in and around Sarajevo at that time.

599. The Trial Chamber is further satisfied that, as examined in this Part of the Judgement, murder and inhumane acts falling within the meaning of Article 5 of the Statute were committed in Sarajevo during the Indictment Period.

600. In sum, the Majority of the Trial Chamber finds that each of the crimes alleged in the Indictment – crime of terror, attacks on civilians, murder and inhumane acts – were committed by SRK forces during the Indictment Period.

601. The issue of whether responsibility for attacks on civilians and crime of terror charged under Article 3 of the Statute, and murder and inhumane acts charged under Article 5 of the Statute is to be imputed to the Accused must now be addressed.

602. In examining the central issue about whether the Accused played a role in the commission of these crimes proved at trial and in accordance to which theories of responsibility, the Trial Chamber will keep at the forefront of its consideration the presumption of innocence embodied in Article 21 of the Statute, which means that the Trial Chamber will find an accused guilty only if it is convinced of the accused’s guilt beyond a reasonable doubt.
     IV. CRIMINAL RESPONSIBILITY OF GENERAL GALIC
     A. Introduction
     1. General Galic’s Personal Background

603. Stanislav Galic was born on 12 March 1943, in the village of Goles in the municipality of Banja Luka, Bosnia and Herzegovina.²⁰⁸⁸ Prior to the war in Bosnia, he was commander of the 30th Partizan Brigade of the 1st Krajina Corps operating in the area south-west of Banja Luka.²⁰⁸⁹

604. On 7 September 1992, the minister of Defence of Republika Srpska appointed him commander of the Sarajevo Romanija Corps. General Galic assumed his new duty from the outgoing officer, Major General Tomislav Sipcic, on 10 September 1992.²⁰⁹⁰ In November 1992 the Accused was promoted to the rank of Major General.²⁰⁹¹

605. General Galic was described as a “well-respected and very intelligent military man”, with a “commanding presence”, “respected for his military abilities and knowledge by his staff and by the military observers”.²⁰⁹² He was a “hands-on” commander,²⁰⁹³ “hard, direct, unyielding and suspicious with a certain rough humour”²⁰⁹⁴ who remained calm²⁰⁹⁵ and underscored the importance of respecting the Geneva Conventions.²⁰⁹⁶

     What I recall of General Galic was, he was a very confident man. He would take command of the situation, lecture us. He would never give us any ground or latitude. He would make sure that he argued adamantly for his position. I would not personally want to cross him because he was a very strong -- had a strong character. And negotiations with him were difficult.²⁰⁹⁷

     2. The Command Position Held by the Accused Throughout the Relevant Period

606. There is no dispute between the parties that General Galic assumed the post of the commander of the Sarajevo Romanija Corps during the Indictment Period and that he was directly reporting to General Mladic.²⁰⁹⁸ For all military persons present in Sarajevo, there was no doubt that General Gali c was the de jure SRK Corps Commander, his superiors being the Chief of Staff of the VRS, General Ratko Mladic,²⁰⁹⁹ and the supreme commander of the VRS, Radovan Karadzic.

607. General Galic remained in this capacity until 10 August 1994 when Dragomar Milosevic, his Chief of Staff, assumed command.²¹⁰⁰

608. There is no dispute either between the parties that during the time of his tenure, General Galic remained on the premises of the Command post located in the former JNA Lukavica barracks or toured the SRK Forward Command Posts scattered along the confrontation lines.²¹⁰¹ The barracks in Lukavica where the SRK command stayed and functioned throughout the conflict were located east of Dobrinja, south of Sarajevo, within range of the combat actions of the companies on the front line.²¹⁰²
     3. The Role of General Galic

609. There is no dispute between the parties that General Galic, as Corps commander, was in charge of continuing the planning and execution of the military encirclement of Sarajevo.²¹⁰³ At the time of General Galic’s appointment as commander of the SRK, the military encirclement of Sarajevo was achieved. In itself, that encirclement is not directly relevant to the charges of the Indictment. Neither are the military attacks, which were not illegitimate even where such attacks may have resulted in proportionate or incidental civilian casualties or fear.

610. The Prosecution’s case is that the civilian population of Sarajevo was subjected, contrary to the principle of distinction, by forces under the Accused’s command or control to an unlawful campaign of sniping and shelling which by its scale and continuity indicates a deliberate intent to illegally attack civilians.²¹⁰⁴ The Prosecution submits in particular that after the Accused assumed command of the SRK in September 1992, there was no perceptible change in the campaign of sniping and shelling.²¹⁰⁵ According to the Prosecution, the Accused thus became the implementor of a pre-existing strategy and participated in both the legitimate military campaign against the ABIH and the unlawful attacks directed against the civilian population in Sarajevo.²¹⁰⁶

611. The Trial Chamber has already made findings in relation to the role of the SRK in the campaign of sniping and shelling attacks waged in Sarajevo during the Indictment Period in part III of this Judgement.

612. The Indictment alleges that General Galic is criminally responsible for his participation in the crimes pursuant to Article 7(1) of the Statute. Article 7(1 ) is pleaded in its entirety but the Prosecution was more specific in its opening statement and claimed that the criminal acts which form the basis of the Indictment were planned or ordered by the Accused. In its Final Trial Brief, the Prosecution narrowed its case. It alleges that evidence concerning General Galic’s knowledge of crimes committed in Sarajevo by forces under his command, the high degree of discipline he enjoyed from his subordinates and his failure to act upon knowledge of commission of crimes “establishes beyond reasonable doubt that the targeting of civilians was ordered by him”.²¹⁰⁷

613. Therefore, and also because General Galic admits that he was the “de jure and de facto commander”²¹⁰⁸ of the SRK troops deployed around Sarajevo, the Trial Chamber turns to examine first whether General Galic was in effective command control of the SRK forces throughout the relevant period, then whether General Galic knew about the crimes proved at trial and what, if any, his participation in the crimes proved at trial was. The Trial Chamber will finally conclude on whether, as alleged by the Prosecution, General Galic incurs criminal responsibility under Article 7(1) of the Statute for ordering the crimes proved at trial.
     B. Was General Galic in Effective Command of the SRK Forces throughout the Relevant Period?

614. The Prosecution bases its case upon the premise that General Galic exerted a tight control over his subordinates,²¹⁰⁹ but the Defence argues that General Galic cannot be held criminally responsible for acts committed by his subordinates because such “individual[s] would certainly not freely report his eventual illegal behaviour”.²¹¹⁰
     1. The Chain of Command

     (a) The Structure of the SRK

615. The Trial Chamber received consistent, credible and reliable evidence corroborating the admission that “General Galic had de jure and de facto control of the soldiers constituting the organisational structure of the VRS”.²¹¹¹ The command and organisation of the SRK was very similar to the JNA’s.²¹¹² The Corps headquarters of the SRK located in Lukavica, south of Sarajevo, consisted of four sections, each headed by an assistant Corps commander.²¹¹³ The Corps was formed of ten brigades, numbering about 18,000 personnel.²¹¹⁴ Each brigade headquarters included a staff whose structure replicated that of the Corps headquarters in order to facilitate communication with the latter.²¹¹⁵ SRK brigades ranged from a few dozen troops to several thousand²¹¹⁶ and generally consisted of several battalions, with each battalion ranging in size from 56 to over 700 troops.²¹¹⁷ A battalion was divided into companies, with a company consisting of 100 or more troops.²¹¹⁸ A company was itself divided into platoons ranging in size from twenty-four to thirty-two members. ²¹¹⁹

616. According to the Defence military expert Radinovic, the situation in which General Galic found the Corps when he took up his duties was “almost chaotic”. The Bosnian Serbs were organised into a proper army during the month of June 1992, but it was only at the end of September 1992, that an increased level of military organisation, with discipline and responsibilities of soldiers set up, could be sensed.²¹²⁰ The organisation and composition of the SRK was finalised during the summer and autumn of 1992. The brigades were reconstituted, so that the Trnovo and Novo Sarajevo Brigades were brought under the 1st Romanija Infantry Brigade,²¹²¹ and from the Blazjuj and Hadzic Brigades, the Igman Brigade was formed.²¹²² At the end of November 1992, the Romanija Motorized Brigade and the Rogatica Brigade were transferred to the VRS Drina Corps,²¹²³ so that the number of SRK brigades was brought down to nine.²¹²⁴ Toward the end of 1993,²¹²⁵ or early 1994,²¹²⁶ the Rajlovac, Vogosca and Kosevo Brigades were integrated into a new 3rd Sarajevo Brigade and the total number of brigades was reduced to seven.²¹²⁷ The number of brigades in the Corps fluctuated over time depending on the circumstances.²¹²⁸ In the first phase of its existence,²¹²⁹ the SRK consisted of thirteen brigades, three independent regiments for support, and five battalions for servicing and supplies.²¹³⁰

617. The international personnel present in Sarajevo throughout the Indictment Period had the impression that the SRK soldiers were professional and efficient.²¹³¹ Richard Mole, Senior UNMO from September to December 1992 in Sector Sarajevo, noted in relation to the Otes Offensive that "The command and control of the artillery positions was such that they could bring to bear a very effective fire mission".²¹³² Jeremy Hermer, a UNMO at LIMA positions from August 1993 to January 1994, noticed that “There were obviously professional officers working in that organisation who were able to maintain that rigid chain of command”.²¹³³ Jorma Gardemeister, Senior UNMO for Sector Sarajevo from June to October 1993, visited most of the Bosnian Serb artillery positions and had discussions with the artillery officers “about how they are maneuvering with their devices and artillery, mortars.” He was rather surprised by the “good professionalism of the artillery officers ”, and although he “did not speak to all the gun soldiers or privates”, “the overall impression was professional”.²¹³⁴ According to Christian Bergeron, Chef de Cabinet to UNPROFOR Commander of Sector Sarajevo from April 1993 to April 1994, General Galic appeared to be “in charge of everything going on around Sarajevo including the Serb forces outside Sarajevo”.²¹³⁵ Patrick Henneberry, Senior UNMO and later UNPROFOR commander of the North LIMA side of Sarajevo from July 1992 to February 1993, noticed, along with others,²¹³⁶ that:

     Generally, for the most part and for most of the time, there was a recognisable and effective hierarchy structure with the Corps commander at the top, his staff advising him, various levels of command underneath that down to the section or squad level, section or squad being a handful of men. And the hierarchy was recognisable and, in effect, there were occasional lapses but, again, usually the command structure was working.²¹³⁷

     (b) The Reporting and Monitoring Systems of the SRK

618. General Galic, present on the battlefield of Sarajevo throughout the Indictment Period, actively monitored and controlled the military situation in Sarajevo, in particular from the Lukavica Command post. That Command post²¹³⁸ was accessible to all UN representatives, military members of the VRS and paramilitaries.²¹³⁹ It was directly linked to the Operation Centre of the Command - also located on the premises of the command - via telephone.²¹⁴⁰

619. According to an SRK officer, the central core of the SRK command were the Corps briefings which were usually held at Lukavica barracks but could sometimes take place in Butila (in the western part of Sarajevo) or in Jahorina.²¹⁴¹ There were meetings in the command post every morning at 07:00 hours and every evening at 19:00 hours.²¹⁴² These meetings were usually attended by members of the Corps command, the brigade commanders, the commanders of independent regiments and battalions,²¹⁴³ but the Corps officer who liaised with UNPROFOR and other UN personnel could also attend them.²¹⁴⁴ During these meetings, reports from all commanders of the brigades and regiments were given, and General Mladic or some of the officers from the main staff could appear.²¹⁴⁵ General Galic usually chaired these meetings.²¹⁴⁶ He received oral reports from his assistants and members of the staff about the situation in the front, about urgent tasks, or methods and deadlines for execution.²¹⁴⁷ The brigade commanders would submit and read out written reports about the situation in their respective territory ²¹⁴⁸ such as the logistical problems encountered,²¹⁴⁹ the morale in the brigade, or intelligence on enemy activity.²¹⁵⁰ As part of their reporting, these commanders would also propose ways to address problems encountered by their units.²¹⁵¹ Members of the Corps command who dealt with the areas concerned by these proposals would submit their own report on the matter and make their own suggestions.²¹⁵² At these meetings, General Galic gave the impression to his staff that he had a good grasp of the overall situation of the SRK.²¹⁵³

620. General Galic personally observed the situation in the field. Although roads around the frontline were very narrow, the terrain very hilly and overall progress was slow, there was no impediment to travel along the frontline.²¹⁵⁴ SRK officers testified that General Galic travelled in particular to Butila, Nis ici, in the surroundings of Trnovo, and more generally to visit the permanent brigades command positions and forward command positions,²¹⁵⁵ when necessary, without a strict schedule.²¹⁵⁶ Witness DP35, an SRK commander, explained that General Galic could not visit certain positions, although at a limited distance of Lukavica barracks (such as troops in Ilijas or the 3rd Sarajevsko or the Igman Brigade), because Lukavica was cut off from that part of the battlefield; but he emphasised that General Galic controlled these positions from other positions nearby.²¹⁵⁷ Another SRK officer, DP17, testified that all throughout the Indictment Period, General Galic inspected the Ilidza Brigade about ten times, every month or two.²¹⁵⁸ During such inspections, General Galic would visit the front lines of the area of responsibility, the hospital, the injured, as well as the rear or the logistics²¹⁵⁹ and discuss reports submitted by the brigade commander.²¹⁶⁰

621. DP17 further testified that he thought that General Galic also inspected other brigades.²¹⁶¹ Witness DP34, an SRK brigade commander, confirmed this. He testified that General Galic visited the area of responsibility of the Kosevo brigade on two occasions and would otherwise pass through the region on his way to the western part of the battlefield towards Vogo sca.²¹⁶² DP34 explained that during his two visits there, General Galic familiarised himself with the situation of the brigades, observed the confrontation lines and issued orders, insisting on the need to have a “decisive defence”.²¹⁶³ Witness DP34 further testified that General Galic’s assistant Corps commanders also visited the brigades and reported back to him.²¹⁶⁴ DP17 and DP18 emphasised that communications within the SRK was made by phone or radio²¹⁶⁵ and, as mentioned above, through daily written reports.²¹⁶⁶

622. General Galic gave a similar impression to UNPROFOR representatives that he was well conversant with the situation in Sarajevo. According to Victor Vorobev, the UNPROFOR commander of the Russian Battalion in Sarajevo from February to November 1994, General Galic could inform newly arrived UNPROFOR representatives precisely “where his units were deployed and what they were doing. He was perfectly conversant with the map”.²¹⁶⁷ Vorobev noticed that discussions with General Galic led to effective results concerning the passage of goods through SRK checkpoints.²¹⁶⁸ Jacques Kolp, UNPROFOR Liaison Officer with the ABiH from March 1993 to November 1994,²¹⁶⁹ also noticed that the VRS chain of command was very rigid and that information would flow up and down:

     As far as I know, in a part of the Bosnian Serbian Army, the chain of command was very rigid. A head is a head, a chief is a chief. He would not accept that something else should be done opposite to what he said, although every chief had some initiatives that he could take, but as far as the most important things were concerned, it is clear that the General knew in any case, since Major Indjic had to report to him on a regular basis, about what was going on.²¹⁷⁰

     Tucker, the UNPROFOR military assistant to General Morillon from October 1992 to March 1993, concluded that the SRK had “efficient and comprehensive communications ”.²¹⁷¹

623. UNMOs similarly testified that, on two occasions, UNMOs had been held illegally by individuals on the Serb side, General Galic who was perceived as having a very good grasp of what the UNMO were doing and what their mandate was, was asked to assist. That assistance was given “effectively, efficiently, and quickly”. The UNMOs were released and returned to duty.²¹⁷²

     (c) Was the SRK Personnel under Strict Control?

     (i) Procedure for Instructions and Orders

624. Witness DP34, an SRK brigade commander, testified that, on the basis of reports from his staff, General Galic issued orders,²¹⁷³ and that in general, his orders were carried out by the chain of command.²¹⁷⁴ Vorobev testified that his subordinates asked for additional information at times.²¹⁷⁵ Witness D, a member of an SRK platoon, gave evidence in relation to the mode and chain of command of the SRK companies stationed in Grbavica. He testified that his platoon received orders from their platoon and company commanders, orally, usually during the evening reviews and in the mornings before they left to take up their positions at their company headquarters.²¹⁷⁶ Their commanders received their orders from the Battalion Command headquarters, and if a problem arose at platoon or company level, their commanders would say that they would raise it with the Battalion headquarters.²¹⁷⁷ They had a military telephone link to their headquarters from their positions in the field, which is where their platoon commander would usually remain. At their daily review, they could raise any matter they wished with their commanders. Witness D testified that the platoon commander told them that the “orders were that we could open fire freely […] they told us that we could shoot at anything that moved”.²¹⁷⁸ Witness D also had the impression that the snipers who operated from the skyscrapers at Grbavica received their orders from the battalion headquarters.²¹⁷⁹

625. Witness AD, an SRK section commander in a mortar unit posted on the so-called external ring of the confrontation lines, gave evidence in relation to the chain of command of the Ilijas Brigade. He explained that his orders to fire would come from either the duty officer of the Brigade command in Ilijas or from the headquarters of his Battalion command (the Mrakovo Battalion).²¹⁸⁰ The orders would include the time, number of shells and target.²¹⁸¹ If the orders came from the Brigade headquarters they were sometimes in writing; he did not recall seeing written orders from the battalion level.²¹⁸² The written orders were for pre-arranged shellings, whereas the oral orders were for spontaneous ones.²¹⁸³ "Spontaneous fire" meant firing off two tubes of 120 millimetres or 82 millimetres mortars "within seconds or less than a minute or two."²¹⁸⁴

626. Both Witness AD and Witness DP35 also testified about the content of their orders. Witness AD testified that on a few occasions he had confronted his superiors over orders to target civilian places at his brigade command headquarters.²¹⁸⁵ His brigade commander threatened to punish him and the other members of his unit.²¹⁸⁶ For Witness AD, his commander did not dare raise the problem of civilian casualties before his own superiors. He testified that therefore, in his opinion, there was a possibility that General Galic did not know these facts.²¹⁸⁷ Witness DP35 stated that his orders from the chain of command were to prevent the crossing of the airport. According to him, a manner of preventing the crossing of the airport was to fire in an indiscriminate way.²¹⁸⁸ He explained that the “SRK didn't have a device for firing at night”,²¹⁸⁹ thus “they couldn't know whether the person in question was a soldier or civilian ”.²¹⁹⁰

627. Other SRK officers testified that the chain of command within the SRK worked perfectly well and that a platoon commander received his orders from the company commander or through the field phone in case of attack.²¹⁹¹ According to Witness DP10, an SRK platoon commander, the command was very correct, very strict and disciplined.²¹⁹² A platoon commander could not issue any orders on his own and always had to consult with his superiors, except in case of attack from the ABiH side.²¹⁹³ For DP10, it was impossible for the platoon members to carry out orders or execute his orders badly without his knowledge.²¹⁹⁴

628. Victor Vorobev, the UNPROFOR Commander of the Russian Battalion in Sarajevo from February to November 1994, testified that General Galic, at the top of the SRK chain of command, was able to issue precise orders to the commanders under him, and that his subordinates sounded very literate.²¹⁹⁵

     (ii) Control over Sniping Activity

629. James Fraser, an UNPROFOR representative in Sarajevo from April 1994 onwards,²¹⁹⁶ observed that the Serbian snipers were professionally trained – they were very skilled shooters who injured many Bosnian civilians (and some UN personnel) – and their “activity appeared to have been coordinated because of the incidents and how they seemed to happen around the city”.²¹⁹⁷ He noted that snipers were so well hidden that UN forces had trouble locating their positions,²¹⁹⁸ when the French soldiers of the SFOR took up position in what was colloquially known as 'Sniper Alley', they were greeted with shots aimed at a telephone pole indicating that the Serbian snipers too were in position.²¹⁹⁹

     The soldiers indicated to us that in the morning, when they adopted their positions along sniper alley, from time to time shooters from the Serbian side would fire at a telephone pole to indicate they were in position. And once in a while they would – I would call [it] “range" their weapons by firing shots off the UN vehicles to get an indication of where their rifles were firing. And then they would wait during the day to conduct their operations. That indicates to me that these are people who know what they are doing and are fairly confident in their skills because there were several hundred soldiers trying to find out where these people were so that we could stop them from doing what they were there to do.²²⁰⁰

     If the SFOR formal complaints were followed up with a face-to-face meeting with General Galic, only such meetings resulted in a decrease in the sniping.²²⁰¹

630. Many other military international personnel shared the impression that the SRK small arms fire was under strict order from the chain of command and that General Galic effectively controlled the sniping and shelling activity of his troops. Vorobev testified that the UNPROFOR alerted SRK brigades at meetings that, in some Observation Posts’ areas of responsibility, there was intensive fire during cease-fire agreement. For Vorobev, meetings on a weekly basis had an effect on the conduct of the hostilities in his area of responsibility and, gradually, “there were no more casualties, at least to my knowledge”.²²⁰²

631. Jeremy Hermer, a UNMO Military Information Officer in Sarajevo, lodged a complaint once to Major Indjic, the liaison officer of General Galic, concerning severe sniping.²²⁰³ When Indjic denied any SRK involvement, Hermer fabricated a story that a CNN news crew was present at the site. Indjic then informed Hermer that he would get back to him and indeed called back and informed him that although there was a legitimate reason for the sniping, it would stop. The sniping stopped shortly thereafter.²²⁰⁴ Patrick Henneberry gave similar evidence that the SRK high-ranking officers had the material ability to prevent further sniping.²²⁰⁵

632. Members of the UNPROFOR also noticed that although the warring parties admitted that it was extremely difficult to control the deployment of snipers whether this was wanted or not,²²⁰⁶ the speed of implementation of orders by snipers after the cease fires were signed was quick, at the most half a day. The command and control system was operating perfectly.²²⁰⁷

633. Michael Rose, the commander of the UNPROFOR in BiH from February 1993 to January 1994,²²⁰⁸ said, of the heavy weapons Exclusion Zone agreement dated February 1994: “The halting of the shelling and the almost [but] total halting of the sniping at that time showed that there was a total and absolute control on both sides of the military machine”.²²⁰⁹

634. Similarly, Aernout Van Lynden, a war correspondent in Sarajevo,²²¹⁰ observed the impact of the cessation of sniping on the ground after February 1994 at one of the most exposed areas of the city where civilians were previously targeted, being Marin Dvor Square:

     all shooting in Sarajevo stopped. I had been initially in Pale. After this agreement was reached, I went into Sarajevo. And in March did, indeed, for the first time during the war walk across Marin Dvor Square, which would have been a ridiculous thing to do at any other time. But we were not fired at and we were not in danger.²²¹¹ [Previously] practically always there was fire every single day on Marin Dvor Square from the Bosnian Serb positions […] from Grbavica.²²¹²

635. Witness Y, a member of the UNPROFOR from January to July 1993, observed a similar pattern of fire and concluded that “snipers” were under strict control of the chain of command, which comes as no surprise in a “Yugoslav army” where initiative is rare and orders generally come from the top level.²²¹³ When asked about the “degree of effective command and control that General Galic exercised over his forces” and whether “the snipers from the Serb army side of the confrontation line were effectively controlled by the Corps leadership,”²²¹⁴ he said:

     When I arrived in Sarajevo, I was very worried about the fact that, you know, snipers had been put in because I thought that the snipers were absolutely out of control, uncontrolled, and I thought that if ever the hostilities were to cease, these people would still be uncontrolled and would continue to carry out this type of activity. And soon, very soon, I realised that whenever there was a need for the shooting to stop, whenever there was a cease-fire, a temporary cease-fire agreement signed – because cease-fires never lasted very long – then the snipers would stop their activity, suddenly. Equally, when we would have negotiations or when General Morillon carried out negotiations where I was present and when were we trying to bring the various delegations back to Sarajevo or Lukavica or to Kiseljak for the Croats, then we had no security problems whatsoever. Apparently, all the troops concerned, and more specially so the snipers, were perfectly under control.²²¹⁵

     He went on to say that the cease-fires “would happen very quickly. It was always surprising for us every time it showed that the commander [sic] and control system was operational, was operating perfectly. I had no direct idea, but at the most, it was something like half a day, at the most. So it was very quick and it was perfectly implemented by all the parties concerned.”²²¹⁶

636. Another UNPROFOR representative also gave evidence that sniping activity was under strict control because that activity was used as means of pressure. General Van Baal testified that SRK and VRS officers threatened the other warring party and the UN observers that civilians would be sniped at or shelled if their various military demands were not met.²²¹⁷ General Milanovic, the Chief of the Main Staff of the VRS, and therefore an immediate subordinate of the Accused’s direct superior General Mladic, threatened that if trams in Sarajevo continued to run, he would ensure that they and their passengers would be targeted. General Van Baal said that following the threat, the trams, which continued to run, were indeed targeted.²²¹⁸

     (iii) Control over Shelling Activity

637. Many international personnel testified that the SRK shelling activity was under strict control by and on order from the chain of command because of the high level of co-ordination of that activity.

638. Carl Harding, an artillery officer with the UNPROFOR from August 1992 to January 1993, testified that, on 31 October 1992, he witnessed a highly co-ordinated attack of an indiscriminate nature on the city by SRK forces, which bespoke of “a certain amount of command and control and orders given for them to start firing at the same time”.²²¹⁹ One artillery round had landed just outside his office,²²²⁰ he could see a number of casualties (“all civilian people”).²²²¹ Harding recounted the incident of that day:

     it started exactly at 1000 hours and stopped exactly at 1600 hours. That was a timed, concerted effort to bombard the city with no specific military objective that could be identified either by myself or by the observers in any of the PAPA positions.²²²²

     He emphasised:

     It could only have come from outside the city, that being the Bosnian Serb army,²²²³ […] because of the amount of ammunition that was coming in. There was so much it could not have been fired from along the front lines, and the PAPA observation post not see it because there would be muzzle flashes, there would be smoke from artillery pieces and from mortars. So you would see it and you would hear it. But all they were observing were the impacts into the city.²²²⁴

639. Tucker, a British officer who served as assistant to general Morillon before Fraser took office in April 1994, also concluded that the shelling in the city of Sarajevo was ordered. He testified about heavy shelling in the city of Sarajevo at midnight on Christmas’ Eve 1992 and again on 7 January 1993 (Christmas according to the Orthodox calendar). For him there was no doubt that this shelling had been ordered because:

     every single artillery gun, mortar, tank, machine gun, around Sarajevo, started firing in a huge barrage into Sarajevo for about 20 minutes. […] This fire was co -ordinated and all started at one moment and a huge amount of ammunition was expended. It looked like a fireworks demonstration, there was that much ammunition fired, except that this was a lethal fireworks demonstration.²²²⁵

     Tucker further stated:

     I am an artillery officer and I know how much co-ordination it takes in order to arrange for so many weapons in so many different locations to be manned at midnight on Christmas Eve, to have the artillery ammunition in place, to have the targets coordinated in order to achieve what was carried out that evening.²²²⁶

     Tucker had little doubt that the systematic and indiscriminate use of multiple rocket launchers in the city of Sarajevo was approved:²²²⁷

     These weapons were firing from the mountains and high ground around Sarajevo and the impacts of the weapons were inside Sarajevo and, therefore, could only have been weapons of the Bosnian Serb army”.²²²⁸ […] The usage of such large amounts of ammunition had to have been approved at a fairly high level. This concentration of fire, can only have been carried out by the order of and with the approval of the senior most commanders of the Bosnian Serb army surrounding Sarajevo. The communications required in order to co-ordinate this can only have passed through the headquarters of the Bosnian Serb forces surrounding Sarajevo.²²²⁹

640. Harding made similar observations in relation to the Serbian New Year a week later, recalling “the sheer amount of fire that occurred to commemorate or to recognise the New Year it seemed that every weapon around the city opened up at the same time of all calibres.”²²³⁰ According to him, it went on for “at least five to eight minutes, a “considerable time, bearing in mind the amount of ammunition that would be expected during that time”.²²³¹ The weaponry used “would start from small calibre, 7.65, rifles right through the automatic series, 12.7, and there were some heavy weapons firing in the background. So I would say probably about 40 millimeters, I suppose. The anti-aircraft weapons, they had a constant discharge of ammunition, steady note going off. And also the amount of tracer that was flying around, you could clearly see it, so it was from the larger calibre, the 12.7s or the 20 millimeters, that sort of size.”²²³² He estimated that 50 to 60 per cent of the shells were hitting the city in the area “from PAPA HQ and to the east, to the area known as Stari Grad”.²²³³

641. James Cutler, the Senior UNMO who replaced Mole on 26 December 1992, observed the same event that Harding witnessed, but from his position he thought the firing was directed at Zuc, and heard an anecdote (of which he had no proof) that drunken Serb soldiers may have been responsible.²²³⁴

642. Witness Y also observed a definite pattern of shelling in the city of Sarajevo in 1993. According to him, the shelling peaks would correspond to three factors. The first factor was in keeping with military action or reaction on the ground. The second factor would be psychological support to a visit by the authorities to Sarajevo. The third factor would accompany (and this is also a psychological factor ) negotiations taking place outside, be it in New York or in Geneva. Witness Y gave examples of shelling peaks. In late March 1993, the Bosnians tried to cut off the supply route of the Serbs through the small mountain road between Lukavica and Pale. The 10th Bosnian Mountain Brigade attacked around the area of the Jewish cemetery. To repel them, the Serbs shelled the Bosnian troops that were attacking and the city, to have an impact on the population and the local authorities to stop the attacks. It was a way to reinforce the action against the troops to shell the town and especially the Old Town. A second example is a visit of the UNHCR figure, Mrs. Ogata. As soon as her plane landed, most of the artillery pieces from both sides (there was fire and counter-fire) was unleashed and the shooting eased down as soon as her plane took off in the late afternoon. When there were negotiations, there was increased activity of this type over Sarajevo.²²³⁵ Similarly, Briquemont, who commanded UN forces in Bosnia-Herzegovina from July 1993 to January 1994, observed a relationship between negotiations in Geneva and the level of fire into the city of Sarajevo.²²³⁶

643. Christian Bergeron, Chef de Cabinet to UNPROFOR Commander of Sector Sarajevo from April 1993 to April 1994,²²³⁷ based his conclusion that the shelling of the city was under control on the observation of a period of calm which lasted two months in summer 1993 and which coincided with high-level negotiations in Geneva. “And this was manifested on the ground, if I can remember.”²²³⁸ “When the negotiations did not have a result, then obviously, shortly afterwards, the shelling resumed.”²²³⁹

644. Hermer concluded similarly that the indiscriminate shelling of the city of Sarajevo was well coordinated and ordered because of the use of inaccurate weapons such as multiple rocket launchers, which would require a high level of authorisation. He explained that a multiple rocket launcher is an “area weapon” which is inherently inaccurate when applied to a specific, relatively small, target.²²⁴⁰ Hermer said that in about October 1993, there were reports, including incoming reports (INCREPs) of the use of multiple launched rocket systems (“MLRS”) in attacks on the city; he recalled hearing an incoming rocket in one instance.²²⁴¹ He said that rockets are designed to have a rapid and devastating effect on the target and on an area target, these systems “are not accurate by any stretch of the imagination.”²²⁴² They are designed to have a great psychological effect on the troops or targets against which they are used, but they are generally not used in close support, as they are not accurate against specific targets (it “would be to generally suppress or harass a large area ”).²²⁴³

645. Henneberry observed further attacks with this kind of weapon after August 1993.²²⁴⁴ He said in relation to such weapons:

     This multiple barrel rocket launcher is designed to have a spread pattern of tens of metres, if not hundreds of metres, depending on the type, when the shells land on the ground. It is not possible to fire the weapon and have the shells land in a very small area. They spread out in flight and then land over literally up to a kilometre square. Q. Are they designed so that the rockets all land at the same instant or at different times? A. They can – generally at different times, they can be fired. The rockets can be fired individually in banks such as eight across or rapidly one after another. Q. If they are fired in banks, is the intention that they detonate together? A. Close together, yes, sir.²²⁴⁵

     This testimony continues:

     Q. How appropriate would its use be in an urban setting in terms of areas where there are civilians and military together? A. Inappropriate. If for no other reason than, again, the spread pattern can be a kilometre or more, if there are more weapons, as well as the, if I may use the word topography, the height of the buildings would cause some of the shells to strike buildings; others to go over them. It would be impossible to have control of the area where the rockets would land – or to predict, rather, not have control, but predict, where the rockets would land.²²⁴⁶

646. The international personnel present in Sarajevo throughout the Indictment Period also gave evidence that the SRK chain of command was under strict orders and well co-ordinated because indiscriminate shelling was used as a means of bringing pressure on the Presidency. Tucker commonly observed the practice of what was called “punitive shelling” used against the civilian population and which bespoke a high level of command and control.²²⁴⁷

647. Mole, Senior UNMO from September to December 1992, gave specific examples of a number of incidents of threats, admissions and actions of the SRK forces where, he believed, indiscriminate shelling was used as a means of bringing pressure to bear on the Presidency. He referred to several entries in his monthly Senior Military Observer’s report.²²⁴⁸ The entry in his Senior Military Observer’s report for 18 October 1992 reads:

     It appears that a large part of the shelling of the city by Serb forces was due to the Serb view that the Presidency was unwilling to participate in a POW and body exchange. The shelling of the city by the Serbs resulted in an immediate meeting between Serb and Presidency representatives, with SMO [Senior UNMO] as the mediator.²²⁴⁹ A POW and body exchange to be monitored by UNPROFOR has been arranged for later this week.²²⁵⁰.

     Mole confirmed that the reference to shelling of the city in the passage referred to indiscriminate fire into the city, rather than shelling of military targets.²²⁵¹ Mole gave another example of such “indiscriminate fire” as a means to bring pressure on the Presidency with the entry for 7 November 1992, which reads:

     General alert declared by Presidency in city in response to Serb threat of dire consequences if the approximately 6,000 refugees were not allowed to leave the city by 1400 hours today.

     The following day's entry, reads:

     Yesterday's threat by Serbs to Presidency of dire consequences if the approximately 6,000 refugees were not allowed to leave the city were apparently not followed through in any large measure, although general shelling activity somewhat heavier today.²²⁵²

     The entry for 22 November 1992 notes a high level of activity with 192 rounds incoming to the Presidency side and two rounds incoming to the Serb side. Further down, these words appear:

     Today, General Morillon requested an update on the activity in the sector, and when appraised of the heavy shelling into the city, directed that the Serbs be asked the reason for this activity. When asked, the Serbs answered that the shelling was in response to a mid-morning attack by Presidency forces against Hresa […] grid 4058. The attack was said to have been made by infantry supported by hand-held anti -tank weapons. Furthermore, they indicated that the artillery then followed the retreating forces back into the city. It should be noted that the UNMO position observing Hresa was unaware of any infantry attacks to the area. Furthermore, the pattern of shelling by the Serbs did not indicate a specific operation in support of forces in Hresa but was widely spread throughout the city. Shelling into the city still continues at the time of writing of this report.²²⁵³

     Essentially, the witness has recorded in the entry that the explanation provided by the representatives of the Serb forces was inconsistent with the observations by UNMOs.²²⁵⁴

     At approx. [8 p.m. on 7 December 1992] Serbs threatened to renew shelling of city if Presidency shelling of Lukavica did not cease. Presumably Serbs not satisfied with response because as of [9.30 p.m.], Serbs have commenced shelling of city.²²⁵⁵

     The threat was followed with effect. The witness has recorded in the entry of 8 December 1992 that the “Indiscriminate shelling of city [is] intensifying" and that the "Shelling [is] widely dispersed throughout city”.²²⁵⁶

648. Tucker confirmed Mole. He stated that targets were analysed, and the results indicated that heavy artillery was not directed towards military targets, but rather was used to terrorise the civilian population and apply pressure to the Bosnian authorities. Tucker went on to say that:

     And the reason that I say that is that it is entirely illegitimate, in my view, to be using artillery or mortars which have the inaccuracies which have been described just now in order to try and attack so-called military targets consisting of one building or one vehicle or somewhere when the ability of artillery or mortar, mortars, to hit that target are negligible and the chances of that artillery or mortars of hitting the surrounding civilian houses is 99.9 per cent.²²⁵⁷

649. Tucker also testified about VRS officers threatening the other warring party and the UN observers that civilians would be sniped at or shelled if their various military demands were not met. He recounted that in November 1992, Colonel Zarkovic, “a senior commander of the Bosnian Serb forces surrounding Sarajevo who attended many of the negotiations which General Morillon had with the commanders on the Bosnian Serb side”, sent a message to UNPROFOR Headquarters, and to the Presidency. In that message, Zarkovic stated that if a particular Serb convoy was not allowed to leave the city by 13:00 hours that day, he would shell the city. Tucker said “my understanding was that this was a threat and the execution of the threat implied the firing of artillery shells at random into Sarajevo, in other words, at the civilian population in Sarajevo.”²²⁵⁸

650. Witness Y had a similar experience. He testified that at one point, he tried to meet with General Galic in order “to ask him to stop this random shelling on various neighbourhoods of Sarajevo”.²²⁵⁹ He wrote a report which included a Commander’s Assessment: “today’s important shelling from the Serb side looks like a will [sic] to gain grounds around the airport [Butmir, Dobrinja, Stup] to harass the population of the city itself to start a strong reaction from the Bosnian side and so endanger peace talks in New York”.²²⁶⁰ In that respect, Witness Y confirmed the contents of Exhibit P945, which summarised a meeting he had with General Galic on 27 March 1993. The document states that “ General Galic said that that he would abide by the cease-fire but would respond “stronger than ever” if the other side made a violation.”²²⁶¹ Witness Y further testified that, in his views, General Galic did not support these cease-fires.²²⁶²

651. Witness Y gave an example of how attacks were launched against civilians. In late March (1993) the ABiH attacked the road between Pale and Lukavica. On one hand, in order to repel them, the SRK shelled the ABiH attacking troops. “And on the other hand, they reinforced the action through shelling on the town and especially on the Old Town. So this is the military action or reaction as it were.”²²⁶³ The Defence suggested to him that this fire was directed at Bistrik, where the headquarters of the ABiH 10th Mountain Brigade was located. He replied: “I can tell you that it was way beyond that scope, and Serb artillery men always were reputed for being exactly extremely accurate, that would be very amazing”.²²⁶⁴

652. Cutler also testified about an instance where, in the context of the conflict between warring parties in relation to Mount Igman, demands of the SRK were not met and subsequent shelling of civilians occurred.²²⁶⁵ Marcetic asked Cutler to “Tell the Bosnians to stop firing on Ilidža or we will hit Sarajevo”.²²⁶⁶ Indeed Cutler could hear Ilidza being hit, and the Serb HQ said the fire was coming from Igman. Cutler told the Bosnians to “stop firing” but that did not occur, and Sarajevo was shelled.²²⁶⁷

     (iv) Control over SRK Weaponry

653. Under regular military practice, as Corps commander, General Galic was in control of the SRK weaponry. According to DP35, all pieces were under control, directly and indirectly through brigade, company or battery commanders.²²⁶⁸ Mole emphasised that the frontline was approximately 65 kilometres²²⁶⁹ and noted that the Accused:

     might not know the detail, but he would certainly be expected to comprehend such issues as logistic re-supply. And if I may take as an example, units were using ammunition, it would be a fair question to ask those units commanders why they were using that ammunition. Whether he was present or not, it is his job to know what his commanders are doing.²²⁷⁰

     (d) Was General Galic in a Position to Punish his Subordinates?

654. The Defence does not deny that General Galic had the ability to prevent or punish commissions of crimes but argues that he did not have the need to do so. “General Galic had requested investigation to be carried out regarding some of the UNPROFOR protests, but […] the return information provided by the lower units and competent services of the SRK indicated that the SRK units did not take part in any illegal actions”.²²⁷¹

655. On the other hand, the Defence also admits that “(g(reat problems were created with the arrival of the volunteers, who were acting initially along the principle of paramilitary formations, such as the Bokan group, the so-called Jova’s group, the Group Saint George, and others. General Galic undertook urgent measures for subordination of these units and their merger into the VRS units, while some others were disbanded and eliminated from the zone of responsibility, and against some of them judicial proceedings were initiated”.²²⁷²

656. Major Indjic corroborated that statement. He testified that at the beginning of the war, there were groups which did not respect the chain of command and during the first half of 1993, these groups were dismantled and their members reassigned to other units. According to Major Indjic however this “did not completely solve the problem of paramilitaries, because every single soldier who disregards / disobeys an order is a paramilitary in himself”.²²⁷³ “Vojvoda Brne was a paramilitary group stationed at Rakovica / Blazuj. A military police unit was sent to dismantle this group, and they were allowed to use force when necessary”.²²⁷⁴

657. General Michael Rose also noted that General Galic had the ability to punish the commission of crimes. He testified that when “mercenaries” were no longer wanted by the Serb forces to operate in the vicinity of the Jewish Cemetery in March 1994 in the immediate aftermath of the Markale shelling, force was used by the Serb forces to remove them.²²⁷⁵

658. There is some evidence that SRK brigade commanders also had authority to punish subordinate perpetrators of offences. DP34, an SRK brigade commander, prided himself in the fact that his unit was the most disciplined brigade in the SRK Corps, that all orders were carried out,²²⁷⁶ and that any transgression, such as drunkenness or lack of discipline, was punished.²²⁷⁷ There is also some evidence that soldiers had been punished for offences by their superiors. Grdan Vukovic, a military police soldier attached to the SRK in Lukavica, testified that SRK soldiers had been arrested and investigations had been conducted.²²⁷⁸ There was a detention centre in Lukavica and a military prosecutor became involved at some point in the investigation.²²⁷⁹
     2. Conclusions about the Effectiveness of the Command and Control of the Chain of Command

659. The Trial Chamber has no doubt that General Galic was an efficient and professional military officer. Upon his appointment, he finalised the composition and organisation of the SRK. General Galic gave the impression to his staff and to international personnel that he was in control of the situation in Sarajevo.

660. General Galic was present on the battlefield of Sarajevo throughout the Indictment Period, in close proximity to the confrontation lines, which remained relatively static, and he actively monitored the situation in Sarajevo. General Galic was perfectly cognisant of the situation in the battlefield of Sarajevo. The Trial Record demonstrates that the SRK reporting and monitoring systems were functioning normally. General Galic was in a good position to instruct and order his troops, in particular during the Corps briefings. Many witnesses called by the Defence gave evidence in relation to the fact that the orders went down the chain of command normally. They recalled in particular that orders were usually given in an oral form, the communication system of the SRK being good.

661. There is a plethora of evidence from many international military personnel that the SRK personnel was competent, and under that degree of control by the chain of command which typifies well-regulated armies. That personnel concluded that both sniping and shelling activity by the SRK was under strict control by the chain of command from observation of co-ordinated military attacks launched in the city of Sarajevo in a timely manner, of the speedy implementation of cease-fire agreements, of threats of attacks followed by effect, or of the type of weaponry used. The Trial Chamber is convinced that the SRK personnel was under normal military command and control.

662. On the basis of the Trial Record, the Trial Chamber is also satisfied beyond reasonable doubt that General Galic, as a Corps commander, had the material ability to prosecute and punish those who would go against his orders or had violated military discipline, or who had committed criminal acts.

663. The Trial Chamber finds that the Accused General Galic, commander of the Sarajevo Romanija Corps, had effective control, in his zone of responsibility, of the SRK troops.

664. Having found that the Accused had effective control over his troops, the Trial Chamber turns now to examine whether, as alleged by the Prosecution, General Gali c knew that crimes were being committed or had been committed in his zone of responsibility and by forces under his command.
     C. Did General Galic Know of the Crimes Proved at Trial?
     1. Introduction

665. There is a fundamental disagreement between the parties as to the actual knowledge of General Galic of the crimes proved at trial. The Prosecution argues that there is direct evidence that General Galic knew that his subordinates were carrying out a campaign of widespread sniping and shelling, which forms the basis of the charges in the Indictment.²²⁸⁰

666. By contrast, the Defence denies that the Accused possessed such knowledge and argues that “without clearly specified individual incidents, location of incidents, time of the incidents, it is not possible to assume that General Galic had knowledge about any such incident so that he could have ordered any efficient investigation, provided the said incidents did at all take place”.²²⁸¹ The Defence also objects that General Galic had direct knowledge through the media that crimes of a systematic character were committed within his zone of responsibility. It argues that it was “the Muslim side which was using the Media for ((( creating a false image of the situation at the battle front and around Sarajevo”.²²⁸²
     2. Protests Delivered in Person to General Galic

667. The Trial Chamber received consistent evidence that a considerable number of knowledgeable United Nations’ representatives and other intermediaries present in the area throughout the entire duration of the battle of Sarajevo protested against indiscriminate firing on civilians to General Galic. They delivered their protests in person directly to the Accused.²²⁸³ These protests, general or specific depending on the complainant, concerned unlawful sniping and shelling activity in the city of Sarajevo attributed to Bosnian Serb forces, and were transmitted either orally during the fortnightly meetings the UNPROFOR members had with General Galic or in written form.

668. Abdel-Razek, UNPROFOR Commander of Sector Sarajevo from August 1992 to February 1993,²²⁸⁴ met with General Galic in Lukavica on a regular basis and complained about the shelling of the city.²²⁸⁵ On the basis of information contained in reports from mass media and official quarters, Abdel-Razek informed General Galic that his military campaign caused heavy losses among civilians:

     So I used to talk to him in this way concerning the shelling incidents. I also talked to him about the shelling of the hospital. And many other similar issues, we used to talk in a general way. There was a shelling incident on the city. This shelling affected the civilian population and it does also impact on our work in a great deal.²²⁸⁶

669. Patrick Henneberry, who was permanently based at the Lukavica barracks in December 1992, visited artillery emplacements and observed the weaponry being indiscriminately fired into the city.²²⁸⁷ He met General Galic on a number of occasions, and complained, in particular, about the indiscriminate shelling of the city of Sarajevo.²²⁸⁸ As a result of these meetings, he had no doubt that the Accused was aware of the indiscriminate shelling into Sarajevo, and that there was a psychological reason for it, to terrorise the local civilians and the Muslim forces.²²⁸⁹

670. Bergeron testified that he met General Galic “very often […] at least 25 times,”²²⁹⁰ and complained about the number of casualties:

     When we would meet him, we were trying to stick to some kind of a procedure. And generally speaking, we would take stock of the situation, see what had happened since the previous meeting. In some cases we could mention, so if the time that had elapsed was one week we said, well, in the last seven days, we counted so many shelling, mortar shelling incidents, so many sniping, you know, "X" amount of casualties, as far as we knew. So we would report those figures recapitulating what had happened since the last meeting.²²⁹¹

     He also specifically complained about the terrorisation of the civilian population :

     we would often mention the fact that there were snipers – the fact that snipers would kill civilians, be it women, children, elderly people, for apparently no other reason than to terrorise the population, than to demoralise the population.²²⁹²

671. Donough O'Keeffe, the Senior UNMO in post in Sarajevo from March to June 1993, recalled that at a meeting in about April 1993 he protested to the Accused about indiscriminate sniping and shelling.²²⁹³ James Fraser, an UNPROFOR representative in Sarajevo from April 1994 onwards, testified that the SFOR “conducted protests for any sniping incident, shelling incident, weapons in the exclusion zone, if they were not in the weapon collecting points. Anytime there was a contradiction in the UN agreement, we would go to General Galic and protest those cases in two ways: we would send a letter, a written form, to him, and more effectively, we would ask for a meeting to discuss these incidents in order that we could press the point and get him to cease these activities on Sarajevo.”²²⁹⁴

672. Witness W, a member of the UNPROFOR, testified that he met the Accused, in the presence of Major Indjic and sometimes also in the presence of one or several of General Galic’s assistants, “just under 10 times or so”.²²⁹⁵ Many issues were discussed but the "most important and major criticism" was related to incidents where civilians on the Bosnian government side of the confrontation lines, had been killed as a result of shells fired from territory under the control of the SRK side of the confrontation lines.²²⁹⁶ Witness W testified that he officially protested about attacks against civilians committed in his area of responsibility. He also protested about incidents that occurred elsewhere outside his area of responsibility out of personal indignation and the need to communicate to the SRK his disapproval of their actions which the witness “considered as being contrary to human rights”.²²⁹⁷ He stated that:

     Every day the Sarajevo Sector produced a list of incidents that had occurred the previous day. In particular, the shelling of the city by artillery pieces, which were positioned and located on the Serb side or by snipers located in the Serb zone. When I was in a position to meet Colonel Galic or other people in responsible positions on the Serb side, I took advantage of that situation to protest against such action. Moreover, the Sarajevo Sector informed us of their own official protests and I took care to associate with these protests when meeting Colonel Galic.²²⁹⁸

673. Fraser had a couple of meetings with General Galic in May, June or July 1994 to protest against the killing of Bosnian civilians by Serb snipers.²²⁹⁹ Fraser concluded that these snipers were acting on orders because the sniping incidents reflected a definite pattern and the meetings with General Galic resulted in a decrease of Serbian sniping.²³⁰⁰

     It is my opinion that these snipers were acting on orders from a higher organisation than the areas because the three areas that I described, Sedrenik, sniper alley and the airport, crossed a number of different Serbian brigades. And the activities appeared to have been coordinated because of the incidents and how they seemed to happen around the city, that there seemed to be some structure. And when there was an incident, we would protest. And in those protests, and in the discussions with General Galic and his headquarters, there seemed to be some control over the level of activity that these snipers had upon the citizens and the UN.²³⁰¹

674. As stated above, both UNMO and UNPROFOR representatives concluded that some of the indiscriminate shelling of the city was ordered as “reprisal” or as a means of pressure. UNMO who observed civilians being sniped at and shelled, concluded that such targeting had two objectives: to terrorise the civilian population and to apply pressure to the Bosnian authorities.²³⁰² Mole, a Senior UNMO, explained that “There was an accepted norm that if the Serb side failed to achieve their objectives – and I use that in the widest context, so that could be anything from a local complaint to something else that happened within Bosnia – the general perception was that Sarajevo would suffer as a result. This was always interpreted to mean that artillery fire would be brought to bear on the city in response. There were instances where this was quite specifically made as a threat”.²³⁰³ Consequently, his morning briefing about events elsewhere in Bosnia alerted him to the possibility of repercussions within the Sarajevo sector.²³⁰⁴ In such instances, he would speak with General Galic with the objective of preventing repercussions in Sarajevo, in response to these outside events.²³⁰⁵ On the two occasions – in the second half of February 1993 and on 25 March 1993 – Michael Carswell, a UNMO, met with the Accused in the operations room at Lukavica, he protested against the shelling of UNMOs and against random shelling and other firing which occasioned civilian casualties.²³⁰⁶

675. The SFOR also, as a practice, protested whenever it was confronted with concrete physical evidence of a sniping incident (such as discovering the body of a dead Bosnian civilian). The SFOR would first send a written protest to General Galic to establish a record of the protest. General Galic was also informed about the shelling incident 1 (Dobrinja IIIB soccer match).²³⁰⁷
     3. General Galic’s Responses to Protests

676. The responses of General Galic to these protests varied. They were sometimes direct. Abdel-Razek testified that when he complained, early 1993, to General Gali c about the indiscriminate targeting of those who crossed the airport tarmac, General Galic was adamant that he would continue to stop the crossing of the airport using all means. According to him, General Galic had some doubts as to whether those movements might be for military purposes.²³⁰⁸ Abdel-Razek recounted that the Accused made a similar threat to one of his subordinate. General Galic admitted to his subordinate a deliberate policy of targeting civilians,²³⁰⁹ and was determined to pursue such a policy of shelling and to target those who tried to cross the perimeter of the airport.²³¹⁰

677. When Witness W complained in vague terms²³¹¹ about the shelling of a water supply point south of Sarajevo toward the end of year 1992 “which seemed to be intentional against the civilian population” and which resulted in the death of a number of civilians,²³¹² General Galic answered with the attitude “of someone who was assuming or was taking on board what happened, was not rejecting it. And was surprised or wasn’t particularly pleased that I was reproaching this to him”. General Galic’s response motivated in Witness W a profound indignation, which broke their relationship:²³¹³

     The explanations given to me by Colonel Galic, it seemed that it was his troops that attacked the civilians, that his troops did act within the framework of his orders, that he considered it normal that his forces would attack civilians and [therefore, I had] full reason to describe this as criminal act and that I could not continue to have a dialogue with him in these circumstances.²³¹⁴

678. Similarly, when Carswell protested, in the witness’ understanding, General Galic did not deny responsibility, but answered – in general terms – that “it would have been in defence of the Serbian homeland and it is their attempt to preserve the culture”.²³¹⁵

679. On other instances when General Abdel-Razek, UNPROFOR Commander of Sector Sarajevo from August 1992 to February 1993, informed General Galic that the shelling of the PTT building by Bosnian Serb forces should stop, General Galic always said that it was the other side which was doing the shelling.²³¹⁶

     But when I reviewed the reports coming from the checkpoints, and most of these reports are at the disposal of the UN, these reports showed clearly that the shelling came from the Serbian forces, the Serb forces. And when I insisted on stopping the shelling, he said to me: "You allow the other side to fire from this side, from the perimeter of the PTT building, and when we respond, some of the rounds might fall close to the PTT building." He said to me, "It is your responsibility to stop the other party, the other side, to stop the shelling." That is the way he dealt with us when it came to discussing the shelling.²³¹⁷

680. General Galic used to say that the other party did that in order to attract the support of the international community and sympathy.²³¹⁸ Abdel-Razek testified that General Galic stated during one of the meetings they had together in relation to a complaint about indiscriminate fire on the city by SRK forces that “if the other party continued in firing his troops […] he shall continue attacking them”. General Galic had said “I shall make them live difficult times.”²³¹⁹

681. Henneberry testified that General Galic repeated that statement to him on a day he believed to be 16 December 1992. That day, before a reunion to discuss a corridor to allow civilians to leave Sarajevo and where Mole was also present,²³²⁰ Henneberry complained to General Galic that the indiscriminate shelling continued. General Galic confirmed to him that the ultimate goal was to either destroy the city or rid it of Muslims.²³²¹ The witness was disturbed by that statement emanating from a professional and respected military man:

     And after meeting with General Galic and talking with his staff, it was difficult and perhaps disturbing to reconcile that General Galic was well-respected and a very intelligent military man. There was no doubt of that. He had a commanding presence. He was respected for his military abilities and knowledge by his staff and by the military observers. The disturbing part of that was his focus on destroying the city or ridding it of Muslims, which was not in accordance with recognisable rules of […] armed conflict. It, in fact, to be honest, was disturbing and somewhat scary. Q. What was that? Could you spell that out. A. I would have to hearken back to the Nuremberg trials, where very intelligent men made decisions that were illegal and against the law and caused the death of civilians and military. And I couldn't help but thinking that General Galic, again being an intelligent military man with the respect of all, had the power within him to rid the city of the Muslims mostly, and knowing what was inside the city, I recognised and realised that that meant the death of a lot of innocents. Innocents, which I categorise as the young, the elderly, and the non-combatants, and he was determined to do that.²³²²

     Mole who was present during that meeting explained that General Galic made threats of attacks against the population of Sarajevo. He provided the example in relation to Mount Igman. General Galic threatened that if the firing from Mount Igman did not cease, there would be reciprocal firing by his weapons onto the city of Sarajevo.²³²³ Such threats were expressed again in the course of other meetings, between five to ten times directly to him, and in relation to other parts of the territory of Bosnia-Herzegovina.²³²⁴ Mole explained it as follows:

     The point with Sarajevo is that it was a policy of containment which he was exercising, and as a result of that, he considered that his military capability could be brought to bear on the city in response to activities elsewhere, and one interprets that by virtue of his weapons disposition to be the application of his artillery pieces to maintain that policy of containment.²³²⁵

682. In other instances when Witness W protested to General Galic about offences that had been committed against civilians in his area of responsibility,²³²⁶ the response was either a denial of the incidents or a denial that the SRK was involved or the announcement of an investigation of the incident.²³²⁷

683. In relation to the negotiations for a sniping cease-fire in the aftermath of Markale incident, Fraser had a somehow similar response from General Galic. He testified that:²³²⁸

     our meetings with him starting off by being lectured, a denial of what it was we were trying to discuss. However, there was some acknowledgment about sniping around the city and a general consensus that it would be nice if they had an anti-sniping agreement. One which was written up, was not signed by neither party later in that summer, but it is something that we wanted. However, having gone through the meeting with General Galic, the incidents of sniping around the city did diminish somewhat for a period of time. So the meeting was effective.²³²⁹

684. According to Witness DP17, an SRK officer, the topic of United Nations’ complaints about the sniping of civilians was discussed at least once during a visit by General Galic to his brigade. According to the witness, it was always stressed that civilians were not to be targeted.²³³⁰ Another SRK officer, the Defence Witness DP35, confirmed that during the Corps briefings, General Galic would mention protests he had received²³³¹ and “would not just have a glance at such protests but would deal with it seriously, either a protest concerning sniping or shelling”.²³³²

     there was a warning that was given to the relevant persons who would forward that warning and check it in the units whether fire was opened, for instance. Or there was a warning – that was the task given to the liaison officer with UNPROFOR to check whether the protest was based on facts, on something that had really happened. And we always stressed that there were many protests that occurred which were not based factually and that practically people were just involved in studying this, discussing it, and then the opposite thing was true. [And] firing was also discussed in relation to the weapons which need not have had optical sights.²³³³

     4. Protests Delivered to General Galic’s Subordinates

685. Formal protests against apparent violations of the laws of armed conflict were also delivered to General Galic’s subordinates. Witness Y testified that these formal protests were transmitted during the fortnightly meetings the UNPROFOR members had with one of General Galic’s deputy when the Accused was not there or did not want to see him. According to him, this happened when it was difficult for the Accused to give explanations about attacks upon civilians. Protests were also passed on General Galic through the liaison officers team based at the PTT building where UNPROFOR had its headquarters.²³³⁴ The liaison officer could then contact the Command headquarters in Lukavica through hand-held wireless set or landline.²³³⁵ UNPROFOR also very regularly sent written protests through the liaison officers to both parties when there was a series of violence, attack upon attack, shooting upon shooting, initial shooting and return shooting, or to one side only.²³³⁶ According to UNPROFOR personnel, such written protests were faxed to the respective commands.²³³⁷

686. Major Indjic, the liaison officer of General Galic, whose office was close to the offices of the SRK Chief of Staff and General Galic,²³³⁸ confirmed this.²³³⁹ He testified that within the UNPROFOR structure, various levels were in a position to protest and had protested: UNMOs, liaison officers from UNPROFOR battalions, the UNPROFOR command of the Sarajevo sector, and the BiH UNPROFOR command. Protests from the latter were usually in written form, transmitted “directly” and “as fast as possible ” to the Main Staff of VRS.²³⁴⁰ The protests from UNMOs and liaison officers of UNPROFOR battalions located in Sarajevo ²³⁴¹ were ninety-five percent verbal.²³⁴² Major Indjic transmitted these protests to the SRK Corps Command and waited for feedback from the duty officer or from the Corps commander.²³⁴³

687. Major Indjic testified that written protests from UNPROFOR command of Sector Sarajevo were mostly related to cease-fire violations, and simultaneously addressed to both warring sides. Other protests were sent if, for any reason, there was a threat to UN units or members.²³⁴⁴ There were about fifty written protests of these kinds during the relevant period which had been forwarded to the Corps commander or, if he was absent, to his Chief of Staff. Major Indjic does not know what the “Corps Command” did upon receipt of protests, but “either one of them” would personally write an answer and give it to the group members for it to be translated and forwarded to UNPROFOR.²³⁴⁵

688. Major Indjic denied first that he ever received specific protests saying that persons (civilians)²³⁴⁶ had been killed by sniping or shelling,²³⁴⁷ so no action could be taken.²³⁴⁸ Later during his testimony, he stated that an investigation in relation to the shelling of the Markale market had been undertaken by the SRK,²³⁴⁹ and that he indeed received about a hundred protests to the effect that sniper fire had been opened.²³⁵⁰ The Defence Witness DP35 confirmed that Major Indjic received protests to the effect that civilians had been attacked. He testified that investigations by the SRK into protests were difficult because of the lack of precision of the protests,²³⁵¹ but protests alleging that civilians were targeted²³⁵² were passed on through the liaison officer of the SRK, Major Indjic from September 1992 to August 1994.²³⁵³ As to why protests were not regarded as specific, DP35 conceded that it was because names of casualties were not mentioned in the protests.²³⁵⁴ Under cross-examination, Major Indjic also clarified his previous statement. For him, a protest was specific and allowed proper reaction only if it included details such as the time, the location, the direction of the fire, the type of weapon used and the consequences of the fire. Most of the protests that he received were incomplete, thus not officially received.²³⁵⁵ He added that although additional information would be asked for, it was never received.²³⁵⁶

689. Many international personnel confirmed that Major Indjic received protests concerning attacks against civilians. Major Indjic’s responses upon protests could be direct. Henneberry testified that, after he had won Major Indjic’s confidence, Indjic repeatedly admitted to him that he knew that civilians were being shelled and he believed that it was wrong but that it was part of the Corps’ plan and that it would continue.²³⁵⁷ Henneberry’s immediate superior, Senior UNMO James Cutler, corroborated him to the extent that he recalled seeing Henneberry upset because “the Serb liaison officer had told him that the shelling into Sarajevo and the killing of civilians was deliberate. I interpreted that to mean that it was an intentional part of the Corps plan of the siege of Sarajevo […] To me, it was very evident that that had been going on. It wasn’t earth-shattering news to me at all because I had come to the conclusion that harassing morale-lowering fire was a fait accompli in that situation.”²³⁵⁸ When John Ashton, who arrived in Sarajevo in July 1992 as a photographer,²³⁵⁹ showed to Major Indjic photographs of damages caused to the city of Sarajevo by shelling in September and October 1992 and the great number of civilian casualties in hospital, the response was “what a pity […] we obviously can’t use it [the hospital] anymore”.²³⁶⁰ Major Indjic said to Ashton that he did not want to destroy the city but wear people down until they surrender or give up or go back to Turkey,²³⁶¹ and asserted that “they” would not cease shelling the Hospital until the “Muslims surrendered the city”.²³⁶²

690. Some other international military personnel received different responses from Indjic. According to Jacques Kolp, UNPROFOR Liaison Officer with the ABiH from March 1993 to November 1994, Major Indjic’s reaction to protests would usually be either to say that he would see²³⁶³ or that it was not important, just some shootings.²³⁶⁴ Henneberry said that Indjic’s responses to complaints were to deny the shelling of civilians or say that it was an uncontrollable element, or, when Henneberry won his confidence, even admit it and say that it was wrong but necessary.²³⁶⁵ Henneberry explained that when hearing complaints about the shelling not always hitting military targets, Indjic’s response was to say that he would send the request up the chain of command for consideration, and most of the times he also requested some action on the part of the UN or by the “Muslim side”.²³⁶⁶ He noticed that on several occasions, the firing would stop after the complaint.²³⁶⁷

691. Jeremy Hermer, a UNMO Military Information Officer from August 1993 to January 1994, testified to the same effect. He also complained repeadedly to Major Indjic over the phone about extensive shelling or sniping in one particular area that was not directed to any specific military target, and that possibly civilians were being injured.²³⁶⁸ “There were a number of types of response one could expect to receive. And they ranged from total indifference and unwillingness to communicate to a denial, a flat denial of any action taking place. It may well be that he would be aware of what I was referring to and his retort was that this was legitimate military action and a response to earlier Bosnian actions. On occasion he would, again, appear to be aware of what I was referring to and would, in fact, say that he would try to do something positive to help the situation”.²³⁶⁹

692. Hermer testified that, at times, Major Indjic seemed to be able to cause an effect on the battlefield, in that when a request or complaint had been lodged, the incident to which the complaint referred often ceased.²³⁷⁰

     There was always the possibility that contacting Lukavica barracks would elicit some kind of positive action. Therefore, I was dutybound always to make that contact in the hope that something positive could – could happen. As I said previously, it wasn't always the case. But on the occasions where either Major Indjic, directly or through one of my colleagues on the Lima side, indicated something could happen then generally something did appear to happen. So I would say that there was a chance that something would happen when a request was lodged and, therefore, there was the possibility that our request would be granted, which leads me to believe that Major Indjic, or somebody in that headquarters, had the ability to cause an effect on the front line.²³⁷¹

     Indjic confirmed that there were a number of protests while combat operations were ongoing that they were able to act promptly upon.²³⁷²

693. Ashton also testified that in September 1992, he saw General MacKenzie coming into Major Indjic’s office to tell him loudly in an angry tone that “that has got to stop”. MacKenzie was complaining about shelling around the area of the PTT, including shelling of civilians, at one time the so-called iron cross was being used.²³⁷³ Ashton testified that the iron cross was a form of punishment used whenever a Serb was killed by the other side or if the Bosnian fired a mortar round. It consisted of shelling heavily an area in the pattern of an orthodox cross.²³⁷⁴

694. Complaints were also made directly to Colonel Marcetic, the SRK Chief of Staff, with respect to shelling and sniping of civilians and UN troops.²³⁷⁵ Noticeably, when UN representatives would complain to persons other than General Galic, the response would range from sincere concern, with promise that criminal activity would cease,²³⁷⁶ or with a proposal to undertake investigations,²³⁷⁷ to indifference²³⁷⁸ with a denial of SRK responsibility, to outright laughter.²³⁷⁹ Some SRK high officers were concerned, but they generally continued with the shelling.²³⁸⁰
     5. Media Reports

695. There is also some evidence that the SRK was put on notice via the media coverage that criminal activity attributed to forces under General Galic’s command and control had been perpetrated. DP35 gave examples of investigations following information received via the media and forwarded to the main VRS staff by General Galic. At the beginning of February 1994, Witness DP35, as operations duty officer, “received via the media (radio) information according to which their units had been active and their action had resulted in casualties in the Dobrinja region. A team was formed by the Chief of Staff that tried to establish whether there had been such action. This wasn't confirmed. And the liaison officer for UNPROFOR never provided an official protest, either written or some other form”.²³⁸¹ The main staff would be provided with this report. “And such report would be sent to the main staff with this person's signature and authorisation”.²³⁸² Witness DP36, an SRK soldier, testified that he was convinced that the media was propagating lies “about the SRK and its way of operating”.²³⁸³
     6. Artillery Assets

696. According to the Prosecution, “Given the critical importance of the Accused's heavy weaponry and munitions advantage over the ABiH as a counterbalance to his infantry disadvantage, the Accused surely had to carefully monitor the use of this key asset. Put simply, it was critical to his continued survival against otherwise overwhelming odds. The same applied to his professional snipers, given the urban nature of the conflict. For these reasons, it was also important that these assets operate in a professional manner”.²³⁸⁴

697. The testimony of Mole supports the Prosecution’s propositions. He noted that :

     One would presumably expect the commander of the SRK to depend on his artillery as his principal strength. Given his dependency on artillery, that being his principal strength, it would be essential for the Accused to carefully monitor the use of it, which would extend to both the rate of use of the munitions and the type of target. If there is an ammunition expenditure on a daily basis, which there was, it had to be recorded and be known. If, therefore, ammunition was being replaced on a daily basis, it must be going somewhere. So the question begs: Where was it going? As a commander, I would hope to know where it was going.²³⁸⁵

698. The evidence given by other international military personnel also bears out these propositions. Carswell testified that on the basis of information received from his LIMA UNMO's, orders would come from Pale through to Lukavica, and then Lukavica would assign the target list to the various gun positions. The battery command post would receive that target list. They would plot the targets, send the information to the gun crews, which would then fire on the order of the battery headquarters. The gunners would obtain their orders once they manned one of the gun batteries. Carswell saw two forms of communication systems at the gun sites; landline telephones and wireless radios, linking Lukavica to the gun battery command posts.²³⁸⁶

699. The evidence given by Indjic confirmed that indeed it was inconceivable that an organised army, as the Trial Chamber has found the SRK was, would allow its gunners to fire according to their own volition, without the knowledge of the hierarchy. Indjic explained that every brigade has an artillery group […] and that the use of a brigade artillery group is within the province of the brigade commander. He emphasised that an order to fire need not be in written form, but any activity by a brigade, must be reported on, and that such an order will be recorded in a report that is submitted thereafter.²³⁸⁷ He continued: “All orders at the level of the brigade are in principle issued by the brigade commander. If an order to open fire is given to the brigade commander, he would have to receive such order from the superior command, that is, the Corps command, usually the Corps commander, in his absence, the Chief of Staff. Or in the absence of the Chief of Staff, the duty operations officer. The same applies for an order to stop firing”.²³⁸⁸
     7. Conclusions about General Galic’s Knowledge of Criminal Activity of the SRK

700. Although it has found that the reporting and monitoring system of the SRK was good, the Trial Chamber cannot discount the possibility that General Galic was not aware of each and every crime that had been committed by the forces under his command. As pointed out by the Defence Witness DP34, it was physically impossible for the commander of the Kosevo brigade to literally know about every single incident, which occurred in his area of responsibility.²³⁸⁹ As one goes up the military hierarchy, including up to General Galic’s position as Corps commander, this difficulty to master every single detail increases.²³⁹⁰

701. The Trial Chamber recalls however that the level of evidence to prove such knowledge is not as high for commanders operating within a highly disciplined and formalised chain of command as for those persons exercising more informal types of authorities, without organised structure with established reporting and monitoring systems.²³⁹¹ The Trial Chamber has found that the SRK’s chain of command functioned properly. The Defence admits that protests were addressed to subordinates of General Galic. It denies however that they allowed General Galic to be fully appraised of the situation in the city of Sarajevo and its surrounding.

702. The Trial Chamber rejects that view. First, there is a plethora of credible and reliable evidence that General Galic was informed personally that SRK forces were involved in criminal activity. The Accused’s responses to formal complaints delivered to him form the backdrop of his knowledge that his subordinates were committing crimes, some of which are specifically alleged in the Indictment. Not only General Galic was informed personally about both unlawful sniping and unlawful shelling activity attributed to SRK forces against civilians in Sarajevo, but his subordinates were conversant with such activity. The Trial Chamber has no doubt that the Accused was subsequently informed by his subordinates.

703. Second, as noted above, it would be inconceivable that given the importance of artillery assets for a Corps commander, especially one with an infantry disadvantage,²³⁹² the Accused was not fully appraised of the use of SRK artillery. At a minimum, and as mentioned by witnesses, the daily ammunition expenditure had to be recorded and be known. The Trial Chamber has already made findings in relation to the widespread character of unlawful activities. These criminal activities had to be carried out by using a vast amount of ammunition. The rate of use of ammunition which would have been in excess of what was required for regular military operations, is among the reasons which allow the Trial Chamber to infer that the Accused knew of criminal activities by his troops. The Trial Chamber is convinced that the Accused, as a Corps commander, was in full control of SRK artillery assets and knew of the rate of use of ammunition.

704. Third, in view of the circumstances which prevailed during the conflict, the notoriety of certain of the incidents scheduled in the Indictment and the systematic character of these criminal acts which extended over a prolonged period of time, in conjunction with the media coverage of which the SRK Corps command was aware, renders the Accused’s professed ignorance untenable.

705. The Trial Chamber finds that General Galic, beyond reasonable doubt, was fully appraised of the unlawful sniping and shelling at civilians taking place in the city of Sarajevo and its surroundings.

706. Having found that General Galic had the actual knowledge that criminal acts were being committed by forces under his effective command and control, the Trial Chamber does not consider it necessary to dwell on the reasons the Accused had to know about the crimes proved at trial. It may only recall, briefly, that the information available to the Accused of the widespread sniping and shelling that forms the basis of the Indictment was available in numerous forms. The numerous complaints from the UN representatives would have, at a minimum, indicated to any reasonable commander a need for additional investigation in order to ascertain whether offences were being committed or were about to be committed by his subordinates. Given the nature of the Accused’s command and the reporting and monitoring systems at his disposal, any continuing lack of actual knowledge on the part of the Accused of the unlawful acts perpetrated by forces under his command or control could only have stemmed from a deliberate refusal on his part to acquaint himself with that information which was readily available to him.
     D. Did General Galic Take Reasonable Measures upon his Knowledge of Crime ?

     1. Prevention of Crimes and Punishment of Perpetrators thereof

707. Witnesses called by the Defence testified that General Galic gave orders not to target civilians, to “only target people with weapons and soldiers at the lines and orders to save ammunition”.²³⁹³ The Defence military expert Radinovic presented to the Trial Chamber examples of written orders by General Galic not to target civilians.²³⁹⁴ According to Witness DP17, orders not to indiscriminately target civilians were given when the brigade commander, chief of artillery, chief of engineering section, etc., were there,²³⁹⁵ and these orders were relayed to subordinates and soldiers at the lines.²³⁹⁶ Military people would refer to this type of order as a standing order, i.e. an order that is in effect indefinitely until it is rescinded.²³⁹⁷ These persons were supposed to forward the orders on to their subordinates.

708. There is some evidence to the effect that General Galic issued orders to respect the 1949 Geneva Conventions.²³⁹⁸ DP35 testified however that when documents such as the order of General Galic dated 20 September 1993, which contained a reminder to respect the 1949 Geneva Conventions, and during combat operations, “there is no point, there is no time for a document to be studied, to study certain rules, because we had no opportunity to carry with us or put away or let alone study them. It would have meant that several thousands of soldiers would need to study this, to have a seminar in the Corps, to study certain items of the protocol from the conventions”.²³⁹⁹

709. The lack of proper instruction was clear. According to the Defence Witness DP14, a person cannot be targeted “if it is not in uniform, if he doesn't have any weapons, and if he is more than 300 metres away from the line, he is considered a civilian. If he is on the first front line, the very first line of defence of the enemy, then he is a soldier”.²⁴⁰⁰

710. Witness DP34, an SRK brigade commander, does not recall receiving any orders that gave him concerns about the legitimacy of the targets.²⁴⁰¹ On the contrary, Witness DP35 and Witness AD testified about their orders to fire in an indiscriminate manner.

711. Francis Briquemont believed that the lack of preventive measures was deliberate. He testified that the French Battalion drew up a map of sniping positions. Generals Mladic and Delic were informed about that situation but nothing was done to stop such sniping activity.²⁴⁰²

712. The Trial Record is replete with evidence adduced by Defence witnesses that no measures were taken to punish perpetrators of unlawful attacks against civilians. DP35, an SRK commander, testified that he was not aware of anyone at all being charged as a result of an investigation carried out within the SRK in the relevant period for unlawful behaviour resulting in the injury or death of civilians on the other side of the confrontation line.²⁴⁰³

713. DP34 testified that, during the Indictment Period, he was never instructed to conduct any type of investigation concerning the unlawful targeting by the SRK of Muslim civilians.²⁴⁰⁴ He added that no complaint was ever made to him regarding any violations such as breaches of cease-fires.²⁴⁰⁵ He remembered vaguely hearing that there had been some investigation undertaken within the SRK concerning such unlawful targeting.²⁴⁰⁶ He recalled that during the SRK Corps briefings, mention was made that the unlawful targeting of Muslim civilians would lead to criminal prosecution.²⁴⁰⁷ The point was made too that such targeting would be detrimental since it would damage the image of the SRK in the eyes of the international community.²⁴⁰⁸ He emphasised though that no mention was ever made during those meetings that a specific investigation had been launched because of such targeting and that he had no recollection of any military court being set up before 1995.²⁴⁰⁹

714. DP10, an SRK platoon commander in Grbavica, testified similarly that during the period covered in the Indictment, he was aware of no incidents in which any members of his company, his battalion, his brigade or his Corps were reported or disciplined for failing to follow an order.²⁴¹⁰

715. According to DP9, a member of an SRK platoon, orders had to be carried out,²⁴¹¹ and everyone in his platoon always carried out orders. There was no need for anyone to be disciplined.²⁴¹² DP9 knows about disciplinary measures taken, for example for not turning up on time for shifts, but he does not know or did not hear of any soldiers in his company being disciplined for failure to obey orders.²⁴¹³

716. There is some evidence however that in relation to an attack against an UNPROFOR position, the SRK punished the perpetrator. Gardemeister, Senior UNMO for Sector Sarajevo from June to October 1993, elaborated on a SitRep (Exhibit P1448) which referred to an inquiry he made into an incident during which the French Battalion had received “fire […] mortar and artillery” in their camp which was “co-located ” with the stadium in Sarajevo.²⁴¹⁴ A crater analysis indicated that the source of fire was to the north.²⁴¹⁵ He submitted his report to the UNPROFOR Headquarters. About one week later, they received a letter from Lukavica admitting responsibility, and informing them that “the officer in charge has been punished and the case is closed”.²⁴¹⁶
     2. Conclusions

717. General Galic may have issued orders to abstain not to attack civilians. The Trial Chamber is concerned that, as examined in Part III of this Judgement, civilians in Sarajevo were nevertheless attacked from SRK-controlled territories. Although SRK officers were made aware of the situation on the field, acts of violence against civilians in Sarajevo continued over an extended period of time.

718. There is also some evidence that General Galic conveyed instructions to the effect of the respect of the 1949 Geneva Conventions. The testimonies of DP35 and DP14, both SRK officers, reveal however the extent of the lack of proper knowledge in relation to the protection of civilians. In particular, the statement from DP35, an SRK battalion commander, that a civilian must necessarily be 300 metres away from the confrontation line in order not to be shot at gives rise to concern. In an urban battlefield, it is almost impossible to guarantee that civilians will remain at least 300 meters away from a frontline. Witness DP34 also testified that information about formal protests against unlawful sniping or shelling was never relayed to him.

719. The Trial Chamber has already found that the chain of command within the SRK functioned properly. Taking into account the lack of proper instruction to SRK troops, and considering that the criminal activity attributed to SRK forces extended over a period of twenty-three months, a strong inference is that, at the least, no reasonable measures were taken to prevent the commission of criminal acts perpetrated against civilians and that no reasonable commander could have considered measures such as occasionally reiterating the obligation to respect the Geneva Conventions a reasonable way of addressing complaints of indiscriminate fire at civilians.

720. In relation to General Galic’s duty to prosecute and punish perpetrators of crimes, the Trial Chamber has found that the Accused had the material ability to enforce usual military discipline among his troops. Accordingly, General Galic’s failure to prevent or punish with regard to unlawful conduct on the part of his subordinates cannot derive from a lack of capacity to enforce the laws of armed conflict due to the exigencies of warfare. The testimony of Gardemeister in relation to the instance where the SRK took measures to punish the perpetrator of the attack against an UNPROFOR position is but an example that confirms that conclusion.

721. There is no evidence in the Trial Record that SRK troops were prosecuted or punished for having unlawfully targeted civilians. The Trial Chamber recalls the testimony of Indjic who attempted to explain the fact that no-one was ever prosecuted for having unlawfully attacked civilians by suggesting that only a specific formal protest could allow proper action to be taken. For him, a protest was specific and allowed proper reaction, if it included details such as the time, the location, the direction of the fire, the type of weapon used and the consequences of the fire.²⁴¹⁷

722. Having found that the chain of command functioned effectively and that the Accused was reminded on a regular basis, by formal protests or by the media that criminal activity attributed to troops under his command was committed, the Trial Chamber is not convinced by Indjic’s suggestion. The lack of responsiveness by the SRK command rather demonstrates rather, at the least, a deliberate intent to let the situation pervade and continue rather than the impossibility of properly investigating, prosecuting and punishing.

723. In view of the above, the Trial Chamber finds that the Accused did not take reasonable measures to prosecute and punish perpetrators of crimes against civilians.

724. The Trial Chamber turns now to examine the contention of the Prosecution that General Galic, in fact, not only permitted the crimes – now proved at trial – but ordered them in furtherance of a Corps’ plan.
     E. Did General Galic and his Subordinates Act in Furtherance of a Plan?

725. The Prosecution claims that direct evidence, such as admission by the Accused, and circumstantial evidence such as admissions by senior subordinates, “and independently, in conjunction with evidence to the effect that the Accused enjoyed a disciplined chain of command and an effective chain of communication”²⁴¹⁸ corroborate the evidence that allows the inference that General Galic not only knew about the crimes committed in Sarajevo and attributed to SRK forces but was acting in accordance to a plan.²⁴¹⁹

726. There is evidence that on 12 May 1992, a reunion of Serbian leaders took place, during which a plan to ensure that Sarajevo became the political capital of the Republika Srpska was contemplated. During that meeting, strategic objectives, one of them being that “Sarajevo must be divided or razed to the ground”, were adopted by the Serbian Assembly in Banja Luka.²⁴²⁰ At the same meeting, the VRS was created; the Minister of Health of the Serbian Republic of Bosnia Herzegovina also advocated destroying the Kosevo hospital, and Ratko Mladic is mentioned to have proposed to withhold vital municipal services from the besieged city while blaming the Bosnian government side.²⁴²¹ Two days later, General Galic presided over a meeting with the presidents of the municipalities in the zone of responsibility of the 1st Partizan Division where the conclusions from the meeting of 12 May 1992 were presented, as well as the strategic goals formulated at that meeting, in particular one that said that “Sarajevo must be either divided or razed to the ground”. At the end of the meeting of 14 May 1992, General Galic proposed, inter alia, to “implement the decisions from the meeting in Banja Luka [of 12 May 1992], but submit them to the commands of units and municipalities; hold the present positions and defend them without war”.²⁴²² The conclusions proposed by General Galic were unanimously adopted.²⁴²³

727. The Trial Chamber has already examined the evidence of, in particular, Carswell, Abdel-Razek, Witness W, O’Keeffe, Henneberry, Mole, which purports to demonstrate that General Galic not only knew about military attacks carried against the civilian population of Sarajevo by his forces but intended such attacks in furtherance of a plan. The Trial Chamber recalls that evidence briefly. According to Abdel-Razek, General Galic admitted deliberately targeting civilians crossing the airport.²⁴²⁴ Witness W had the impression from General Galic’s response to his complaint about indiscriminate fire against civilians that General Galic’s troops acted “within the framework of his orders, that he considered it normal that his forces would attack civilians”.²⁴²⁵ Carswell said that General Galic justified indiscriminate attacks which would have been in defence of the Serbian homeland and it is their attempt to preserve the culture.²⁴²⁶ When confronted by O’Keeffe upon the absence of military purpose behind military attacks launched on the city by SRK forces, General Galic responded that he was “going to make this area safe for his children’s children.”²⁴²⁷ Similarly, General Galic confirmed to Henneberry that the ultimate goal was either to destroy the city or rid it of Muslims.²⁴²⁸ To Mole, General Galic said that he would take measures if his demands were not met by the Presidency.²⁴²⁹

728. The Trial Chamber has also examined evidence, indicating the intent of some high level VRS officers in relation to Sarajevo and briefly recalls it. Major In djic said that he did not want to destroy the city but wear people down until they surrendered or gave up or went back to Turkey,²⁴³⁰ and asserted they would not cease shelling the hospital until the Muslims left the city.²⁴³¹ Henneberry also testified that Indjic told him that the shelling of civilians was wrong but it was part of the Corps’ plan and that it would continue.²⁴³²

729. Henneberry had no doubt that the plan designed to attack civilians was disclosed to subordinate units of the Bosnian Serb forces because he “witnessed the ways in which the information would flow from the Corps’ headquarters right down to individual soldiers”.²⁴³³ He explained that he frequently saw brigade commanders attending the Lukavica barracks.²⁴³⁴ Henneberry also frequently raised his concerns about the nature of several shelling targets with the local commander positioned in the areas of LIMA 5 and LIMA 7, and commanders in other positions. In the area of LIMA 5, the response to protests was that the tactic was to destroy the city and kill all of the Muslims inside.²⁴³⁵ At the position of LIMA 7, the commander responded that it was a part of a military plan. At other times, there was no response, and the gunners would smile and deny that the weapons Henneberry had seen being fired had indeed been fired.²⁴³⁶ Henneberry added that “I have no doubt there was a broader Corps plan based on normal military application and hierarchy”.²⁴³⁷
     F. Conclusion: Does General Galic Incur Criminal Responsibility under Article 7(1) of the Statute?

730. This conclusion expresses the view of a majority of the Trial Chamber. Judge Nieto-Navia dissents and expresses his view in the appended separate and dissenting opinion to this Judgement.
     1. Introduction

731. The Prosecution submits that evidence concerning General Galic’s knowledge of crimes committed in Sarajevo by forces under his command, the high degree of discipline he enjoyed from his subordinates and his failure to act upon knowledge of commission of crimes “establishes beyond reasonable doubt that the targeting of civilians was ordered by him”.²⁴³⁸

732. The Defence argues that the absence of written orders by the Accused relating to the alleged campaign is evidence that it did not exist because within the SRK’s command system, such general orders would have been issued in a written form.²⁴³⁹ The Defence further argues that the Prosecution has not proved that the Accused ordered any of the scheduled sniping incidents.²⁴⁴⁰ It submitted, through its military expert Radinovic a set of orders by General Gali c, ordering the non-shelling of the city, for instance a copy of an order signed by General Galic on 15 May 1993, which requests, inter alia, SRK troops to respect international instruments for the protection of victims of conflicts.²⁴⁴¹
     2. Did General Galic Order the Commission of Crimes Proved at Trial?

733. The Majority has already found from the evidence of the frequency, intensity and geographical spread of the sniping and shelling attacks against civilians that there was a “campaign” of sniping and shelling attacks against civilians in Sarajevo during the Indictment Period by the SRK forces. The Trial Record is replete with evidence from a number of military and international personnel who testified to a pattern of sniping and shelling against civilians and concluded, in particular from the reduction of fire after cease-fire agreements or after complaints were lodged, that the sniping and shelling of civilians was maintained by the Bosnian Serb chain of command.

734. The Majority particularly recalls the testimony of General Rose, Van Lynden and Witness Y in relation to the speed of implementation of cease-fire agreements. Van Lynden testified how, in March 1994, after the TEZ [Total Exclusion Zone] agreement was signed, it became suddenly safe to walk across Marin Dvor Square, one of the most notorious “sniping” places in Sarajevo; before that date, any person crossing that square would be shot at from SRK positions in Grbavica. To General Rose, the speed of implementation of the TEZ agreement showed that the warring parties had total and absolute control over their military machines. Witness Y noted that the level of control over sniping activity was so high that when a cease-fire agreement was implemented, sniping stopped within half day, at the most. Fraser noticed that SRK snipers were well-coordinated and concluded that they were acting under orders coming from the chain of command. He also testified that General Galic could influence the level of sniping activity if complaints were communicated to him.²⁴⁴² Vorobev and Hermer had a similar experience. They observed a decrease in the number of civilian casualties after complaints were lodged to SRK officers. The Majority is satisfied beyond reasonable doubt that orders were periodically given in the SRK’s chain of command to decrease sniping fire against the civilian population.

735. The Majority has no doubt that orders to resume or increase sniping fire were also given. General Van Baal, UNPROFOR Chief of Staff in Bosnia-Herzegovina in 1994, gave reliable evidence about a pattern of sniping of civilians occurring when demands from the Serb military authorities were not met. General Van Baal recounted how civilians using trams in Sarajevo were targeted by SRK forces because the demand of General Milanovic, a VRS officer, that trams should not continue to run was not met by the Presidency authorities.

736. The Majority also takes account of the evidence adduced in relation to the pattern of the shelling of civilian areas, from which it infers that fire against civilians was ordered by the chain of command. The Majority is convinced that the events recounted by Harding and Tucker in relation to the highly co-ordinated attacks of an indiscriminate nature launched on the city of Sarajevo from different locations in October 1992, December 1992 and January 1993 occurred and that the witnesses’ assessment that these attacks against civilians could only have been ordered by the SRK’s chain of command is correct. That evidence is supported by the evidence of Witness Y and Hermer. These two witnesses both observed a definite pattern of indiscriminate shelling of civilians in the city of Sarajevo and concluded that such fire was ordered by the chain of command. That conclusion is further supported by evidence of highly co-ordinated artillery fire brought to bear on the civilian population of the city. Tucker concluded from that pattern of indiscriminate fire that SRK heavy artillery was not directed towards military targets, but rather was used to terrorise the civilian population in order to bring pressure to bear on the Bosnian authorities. Witness Y similarly testified in relation to a specific instance that the heavy shelling from the Serb side was intended to harass the population of the city and provoke a reaction from the Presidency authorities.

737. The concerted efforts of the SRK to stop at a given moment the direct or indiscriminate sniping and shelling of the city and then let it increase to its previous level again, from so many different locations, the use of certain types of weapons or the sheer amount of ammunition fired without direct military purpose leads to the only reasonable inference that direct or indiscriminate fire upon civilians by SRK forces was ordered by the chain of command to terrorise the civilian population of Sarajevo. That conclusion is supported by the fact that it is not conceivable that the duration of the period over which crimes against civilians were committed is not the result of a deliberate action to have the situation continue.

738. The Majority is convinced that orders from the Bosnian Serb’s chain of command were relayed down the chain of command of the Bosnian Serb troops positioned around the city of Sarajevo and its surroundings to target civilians or the civilian population of Sarajevo. Having said that, the Majority examines now whether General Galic ordered the crimes proved at trial as alleged by the Prosecution.

739. The Defence submits that there was no written order to evidence that General Galic ordered sniping at civilians in the city of Sarajevo. To the Defence, such orders, because of their importance, would have been in a written form. The Majority notes that the Prosecution’s case does not depend upon written orders given by General Galic but on evidence concerning General Galic’s knowledge of crimes committed in Sarajevo by forces under his command, the high degree of discipline he enjoyed from his subordinates and his failure to act upon knowledge of commission of crimes, which, according to the Prosecution, “establishes beyond reasonable doubt that the targeting of civilians was ordered by him”.

740. The Defence’s argument that there is no evidence of written orders establishing that General Galic ordered fire against civilians in Sarajevo is not persuasive. First, as mentioned in Part II of this Judgement in the section on the law concerning Article 7 of the Statute, an order need not to be in a particular form, it can be given in a wide variety of manners. Secondly, the Trial Chamber received reliable evidence that oral orders were issued on a daily basis by General Galic or the chain of command during the Sarajevo Romanija Corps briefings. The evidence of Witness DP35 and Witness AD that oral orders by the SRK chain of command were not unusual is supported by the evidence of many other Defence witnesses that General Galic ended his morning and evening briefings at the Corps command by issuing oral instructions and orders to his subordinates.

741. While the Majority has no doubt that, indeed, General Galic issued such orders, it has found that crimes were committed against civilians in a widespread fashion and over a long period of time by SRK troops. The Majority has already noted above that the manner of commission of these crimes reveals a striking similarity of pattern throughout. All this has led the Majority to draw the conclusion that the criminal acts were not sporadic acts of soldiers out of control but were carried out pursuant to a deliberate campaign of attacking civilians, which must have emanated from a higher authority or at least had its approval.

742. The Trial Chamber has already found that the Bosnian Serb troops positioned in and around Sarajevo were under the command of General Galic, who exerted control over them. The Trial Chamber has also found that General Galic was fully appraised of the criminal acts committed by forces under his command and within his zone of responsibility, which, at the least, he did not prevent the commission nor did he punish the perpetrator(s) thereof. According to the Majority, there is an irresistible inference to be drawn from the evidence on the Trial Record that what the Trial Chamber has found to be widespread and notorious attacks against the civilian population of Sarajevo could not have occurred without it being the will of the commander of those forces which perpetrated it and that the lack of measures to prevent illegal sniping and shelling activities was deliberate.

743. This conclusion finds support in the evidence of Abdel-Razek and Witness DP35, which counteracts the Defence’s various arguments that orders were not given to SRK troops to fire either in a deliberately indiscriminate manner or specifically against civilians. General Galic admitted to Abdel-Razek that civilians who crossed the airport tarmac were targeted because he had doubts that those movements might be for military purpose. The Trial Chamber has no doubt that Abdel-Razek is credible and his evidence reliable. DP35, an SRK brigade commander, further supported Abdel -Razek’s evidence to the extent that he explained that the members of his brigade followed the orders to prevent the crossing of the airport by using indiscriminate fire. That evidence suggests that indiscriminate fire was, in some occasions, not only a necessity – according to DP35, his brigade had no night vision equipment – but also a manner in which the SRK conducted hostilities. Having found how efficient and effective the reporting and monitoring systems of the SRK were, the Majority is convinced that General Galic was aware that his orders in relation to preventing the crossing of the airport tarmac were followed and meant that a number of civilians trying to cross the airport tarmac were targeted in full awareness of their civilian status or in the reckless disregard of the possibility that they were civilians. Some significance must also be given to the evidence of Witness W who complained to General Galic about the shelling of a water supply point which had resulted in a certain number of civilian casualties and was given explanations assuring him that General Galic’s troops had acted within the framework of his orders when attacking civilians.

744. The Majority also recalls the evidence of Witness AD, a member of the SRK forces, who testified that he confronted his superiors over orders to target civilian places at his brigade command headquarters and that his brigade commander threatened to punish him and the other members of his unit. To Witness AD, his commander did not dare raise the problem of civilian casualties before his own superiors and so there was a possibility that General Galic did not know these facts. This testimony, on the face of it, lends itself to two interpretations; either that the commander of the brigade acted on his own initiative and without any knowledge of his superiors or that he, to the contrary, was acting on orders from his superiors. The latter alternative is the only sound explanantion in view of the fact that the SRK was a well functioning and disciplined Corps. Furthermore, the Trial Chamber has already found that General Galic was fully aware, in particular through official protests, that civilians were being targeted by shelling and sniping activities attributed to SRK forces and that, upon that knowledge, he remained passive or at times, reacted to decrease the level of attacks only to increase it later.

745. An evaluation of the Trial Record makes it also abundantly clear that although General Galic called occasionally for decrease of fire against the civilian population of Sarajevo, when prompted by outside action, he also, at other times, intended to target, by direct or indiscriminate fire, civilians and the civilian population in the city of Sarajevo to spread terror within the civilian population of Sarajevo. The Majority recalls the evidence of Henneberry, O’Keeffe, Mole and Bergeron. All four witnesses protested to General Galic against the indiscriminate targeting of civilians. Bergeron testified that General Galic was put on notice that “snipers would kill civilians, be it women, children, elderly people, for apparently no other reason than to terrorise the population”.²⁴⁴³ General Galic’s response to Henneberry and O’Keeffe that the ultimate goal was to either destroy the city or rid it of Muslims and that “he was going to make this area safe for his children’s children” speaks for itself. The only reasonable conclusion is that General Galic acted in furtherance of a strategy to attack the civilian population of Sarajevo to spread terror within that population. That conclusion is supported by the evidence of Henneberry that a plan in relation to Sarajevo was communicated to General Galic’s subordinate units. Furthermore, the Trial Chamber has found that General Galic’s knowledge of crimes, examples of which were proved at trial, was substantial. The inference is compelling that failure to act for a period of approximately twenty-three months by a Corps commander who has substantial knowledge of crimes committed against civilians by his subordinates and is reminded on a regular basis of his duty to act upon that knowledge bespeaks a deliberate intent to inflict acts of violence on civilians.

746. The Majority is convinced that General Galic promoted the goals of his superiors for Sarajevo by implementing and furthering a campaign of sniping and shelling against the civilian population of Sarajevo, and that by relaying orders down the SRK’s chain of command to conduct that campaign in a manner that reveals a primary purpose to spread terror, sanctioning thereby the use of SRK’s personnel and equipment to an unlawful purpose, he intended that crimes against civilians be committed or to be committed by forces under his command.

747. In finding that General Galic conducted, by upholding orders down the SRK chain of command, the campaign of sniping and shelling against the civilian population of Sarajevo with the intent to spread terror among that population, the Majority recalls that it does not find that General Galic was the unique architect of that campaign. The Trial Record contains evidence which establishes that other VRS officers, including General Galic’s direct superior were present in the battle-field and were closely monitoring the situation in Sarajevo. The Bosnian Serb officer who ordered the targeting of trams used by civilians as a means of pressure upon the Presidency was a VRS officer. There is no evidence in the Trial Record that General Milanovic, a VRS officer subordinate to General Mladic, was in effect subordinated to General Galic. However, in light of the findings made in relation to the reporting and monitoring system of the SRK, the Majority is convinced that General Galic’s forces carried out the sniping at trams in Sarajevo, thereby furthering his orders. An evaluation of the Trial Record leads to the conclusion that General Galic, the Corps commander of a subordinate organ of the VRS, coordinated the campaign of sniping and shelling against the civilian population of Sarajevo, allowing the use of the personnel and equipment of the SRK to carry out unlawful acts of violence against civilians. It stands to reason that the commander of the SRK, the subordinate Corps of the VRS stationed in the area of Sarajevo, would be in charge of implementing, furthering and coordinating the campaign of sniping and shelling fire against civilians in Sarajevo and the evidence bears this out.

748. The Majority finds that the Accused, General Galic, satisfies all requirements of actus reus and mens rea of the crimes proved at trial.

749. In sum, the evidence impels the conclusion that General Galic, although put on notice of crimes committed by his subordinates over whom he had total control, and who consistently and over a long period of time (twenty-three months) failed to prevent the commission of crime and punish the perpetrators thereof upon that knowledge, furthered a campaign of unlawful acts of violence against civilians through orders relayed down the SRK chain of command and that he intended to conduct that campaign with the primary purpose of spreading terror within the civilian population of Sarajevo. The Majority finds that General Galic is guilty of having ordered the crimes proved at trial.

750. Having found that General Galic is guilty of the crimes proved at trial under Article 7(1) of the Statute, the Majority does not deem it necessary to pronounce on whether General Galic is cumulatively guilty under Article 7(3) of the Statute.

751. General Galic is charged with the crime of terror (count 1) and attacks on civilians (counts 4 and 7) as violations of the law or customs of war and with the crimes of murder (count 2 and 5) and inhumane acts (counts 3 and 6) as crimes against humanity based on the campaign of sniping and shelling conducted by the Accused during the Indictment Period. The Majority of the Trial Chamber has found in Part III of this Judgement, in the section ‘Legal Findings’, that the crimes charged in the Indictment were committed by forces under the command and control of General Galic. In this part, the Majority finds that General Galic directly participated into the commission of these crimes by ordering the campaign of sniping and shelling at civilians in Sarajevo during the Indictment Period with the aim of spreading terror among the civilian population. As noted in Part II of this Judgement, in the section ‘Cumulative Convictions’, it is not permissible to enter multiple convictions based on the same criminal conduct for attacks on civilians and the crime of terror, if the latter is proved.

752. In sum, the Majority of the Trial Chamber finds the accused General Galic guilty of the crime of terror (charged in count 1 of the Indictment), murder (charged in counts 2 and 5) and inhumane acts (charged in counts 3 and 6). The charges of attacks on civilians contained in counts 4 and 7 (because they are subsumed under count 1) are dismissed.

753. The Trial Chamber now proceeds to determine the sentence which is to be imposed on General Galic in light of the convictions entered.
     V. SENTENCING
     A. Submissions of the Parties

754. The Prosecution submits that General Galic should receive “life sentences for the offences”.²⁴⁴⁴ According to the Prosecution, the gravity of the crimes proved at trial is established by the large number of victims, the extent of the mental and physical suffering of the victims and survivors.²⁴⁴⁵ To the Prosecution, “the offences are aggravated by the respect in which the Accused was held by his subordinates, since this would have made it easier for him to ensure that his unlawful orders were carried out, including by decent subordinate soldiers who would not otherwise have acted in this way, doubtless causing them much internal conflict”.²⁴⁴⁶ The Prosecution emphasises that General Galic was certainly not reluctant “to implement the campaign which extended under his command for some 23 months” and insists that the crimes were not committed “in the heat of battle, or with little time to reflect on their consequences. Rather, they were continuing crimes, in which his mens rea was refreshed on a daily basis”.²⁴⁴⁷

755. The Defence submits that the sentencing practice in former Yugoslavia suggests that the most severe sentence the Tribunal could pronounce in this case would be a sentence of 20 years’ imprisonment.²⁴⁴⁸ The Defence further submits that the Trial Chamber “must take care to individualise the sentence in relation to the Accused”²⁴⁴⁹ who was “a professional soldier who has to abide with orders”,²⁴⁵⁰ “carried out his duties of Corps Commander pursuant to rules of military service ”,²⁴⁵¹ and “took all measures to prevent activity of paramilitary formations, in order to avoid or reduce possibilities of events that would violate the Laws and Customs of War”.²⁴⁵² The Defence argues that because General Galic’s behaviour during the Indictment Period towards UNPROFOR was very cooperative, he was “invited to offer his resignation ”.²⁴⁵³ The Defence also submits that General Galic was respectful of other people’s nationality and religion,²⁴⁵⁴ and emphasizes that although General Galic was arrested in a “brutal” fashion, he fully cooperated with the international authorities in Bosnia-Herzegovina.²⁴⁵⁵
     B. Applicable Provisions and Sentencing Principles

756. The sentence must be determined with reference to the provisions of Articles 23²⁴⁵⁶ and 24²⁴⁵⁷ of the Statute, and to Rules 87 (C)²⁴⁵⁸ and 101²⁴⁵⁹ of the Rules of Procedure and Evidence. These provisions specify the nature of the penalty a Trial Chamber may impose (imprisonment), the factors to be taken into consideration in determining the sentence, and the manner in which a sentence should be imposed (whether a single sentence or multiple sentences).

757. The jurisprudence of the Tribunals has specified two primary objectives of sentencing: to punish an individual for the crimes committed and to deter other individuals from committing crimes.²⁴⁶⁰ Rehabilitation is also an objective which the Trial Chamber should consider when determining a sentence.²⁴⁶¹

758. The Tribunal has often reiterated in its Judgements that the primary factor to be taken into account in imposing a sentence is the gravity of the offence, including the impact of the crimes on the victims.²⁴⁶² This is true irrespective of the form of criminal participation of the individual.²⁴⁶³ In general, the Trial Chamber will assess the gravity of the offences proven in this case by taking into account the number of victims, the effect of the crimes on the broader targeted group, and the suffering inflicted on the victims.²⁴⁶⁴

759. In determining a sentence, the Trial Chamber must also take into consideration the individual circumstances of the accused, including any mitigating or aggravating circumstances. Neither the Statute nor the Rules stipulate which factors are to be considered as aggravating or mitigating circumstances, except that Rule 101(B )(ii) requires the Trial Chamber to take into account any “significant cooperation ” with the Prosecutor as a mitigating factor. In general, factors peculiar to the convicted person are considered as aggravating or mitigating circumstances.²⁴⁶⁵ By taking into consideration factors pertaining to the individual circumstances of the convicted person, the Trial Chamber is able to more accurately assess the possibility of rehabilitation.²⁴⁶⁶ Relevant individual factors may include voluntary surrender,²⁴⁶⁷ demonstrations of remorse,²⁴⁶⁸ or no history of violent behavior.²⁴⁶⁹ Mitigating circumstances are determined on the balance of probabilities.

760. The jurisprudence of the Tribunal has also identified potentially aggravating factors, such as the type of criminal participation, premeditation,²⁴⁷⁰ discriminatory state of mind where discrimination is not an element of the offence,²⁴⁷¹ the motives of the convicted person,²⁴⁷² or the zealousness with which a crime was committed.²⁴⁷³ Only those matters which are proven beyond reasonable doubt against an accused may be taken into account as aggravating factors.²⁴⁷⁴

761. In imposing a sentence, the Trial Chamber also takes into consideration the general practice regarding prison sentences in the courts of the former Yugoslavia. The Trial Chamber’s discretion in imposing a sentence is not curtailed by such practice.²⁴⁷⁵ At the time of the commission of the crimes proved at trial, sentencing by the courts of the former Yugoslavia was based on the provisions of the SFRY criminal code, in particular Article 41(1)²⁴⁷⁶ of Chapter XVI (“Criminal Acts Against Humanity and International Law”).²⁴⁷⁷ Article 38(2) of the SFRY criminal code permitted courts to hand down a sentence of twenty years in prison in lieu of the death penalty.²⁴⁷⁸ For aggravated murders, a minimum prison sentence of ten years and a maximum of fifteen years were stipulated as the penalty.²⁴⁷⁹
     C. Determination of General Galic’s Sentence

762. That determination is that of the Trial Chamber, by majority of its member.

763. The Majority of the Trial Chamber has found that General Galic participated in a campaign of sniping and shelling and that crimes charges in the Indictment were made out. For his participation in these crimes, General Galic has been found guilty of unlawfully committing the crimes of terror upon civilians (under Article 3 of the Statute; count 1), murder (under Article 5 of the Statute; counts 2 and 5), and inhumane acts (under Article 5 of the Statute; counts 3 and 6). The commission of these crimes would have attracted the harshest of sentences in the former Yugoslavia.

764. Several aspects of this case were critical to the Majority of the Trial Chamber’s decision that the defendant participated significantly in the crimes proved at trial, which were part of a campaign of sniping and shelling. The first aspect is the pervasive and continuous nature of the attacks recounted in detail in Part III of this Judgement. The gravity of the offences committed by General Galic is established by their scale, pattern and virtually continuous repetition, almost daily, over many months. Inhabitants of Sarajevo – men, women, children and elderly persons – were terrorized and hundreds of civilians were killed and thousands wounded during daily activities such as attending funerals, tending vegetable plots, fetching water, shopping, going to hospital, commuting within the city, or while at home. The Majority of the Trial Chamber also takes into consideration the physical and psychological suffering inflicted on the victims. Sarajevo was not a city where occasional random acts of violence against civilians occurred or where living conditions were simply hard. This was an anguishing environment in which, at a minimum hundreds of men, women, children, and elderly people were killed, and thousands were wounded and more generally terrorized.

765. Moreover, the defendant was not – contrary to his assertion – just a professional soldier. General Galic was an experienced military officer of 49 years of age at the time of his appointment as commander of the SRK. As a military professional, General Galic was well aware of the extent of his obligations laid out in the military codes of the former JNA and then of the VRS. The majority of the Trial Chamber has already affirmed General Galic’s voluntary participation in the crimes of which he has been found guilty. He had a public duty to uphold the laws or customs of war. The crimes that were committed by his troops (or at least a high proportion of these) would not have been committed without his assent. The Majority of the Trial Chamber is mindful of the siege-like conditions in the city of Sarajevo where one party to the conflict (the ABiH) was mixed with the civilian population which could be compared as a stalemate situation²⁴⁸⁰ and of the evidence which suggests that, at times, the other warring party sought to attract sympathy from the international community by attracting SRK counter-fire or fire at its own civilians.²⁴⁸¹ The behaviour of the other party, however is not an excuse for the deliberate targeting of civilians and, as such, does not alleviate the responsibility of the Accused. The Majority finds that the fact that General Galic occupied the position of VRS Corps commander, and repeatedly breached his public duty from this very senior position, is an aggravating factor.

766. The Majority has carefully considered whether other circumstances, such as those determined by the case-law, apply to this case. Although sympathetic to General Galic’s arrest and family situation, the Majority of the Trial Chamber considers that the arrest of an accused is not a factor for determining sentence and that his family situation is not so atypical that it is a relevant factor in this case to go towards mitigating his sentence. However, the Majority of the Trial Chamber notes the examplary behaviour of General Galic throughout the proceedings before the International Tribunal.

767. The Majority of the Trial Chamber’s overall assessment is that General Gali c was a professional soldier who not only made little effort to distinguish civilian from military objectives but willingly oversaw the targeting of civilians in Sarajevo.

768. The Prosecution submits that General Galic should be sentenced to life sentences for each count of the Indictment of which he is found guilty.²⁴⁸² However, in view of the fact that General Galic is guilty of crimes which form part of a single campaign committed in a geographically limited territory over an uninterrupted period of time, the Majority of the Trial Chamber holds it preferable to impose a single sentence.
     VI. DISPOSITION

769. FOR THE FOREGOING REASONS, having considered all of the evidence and the arguments of the parties, and having excluded from consideration those incidents which the Prosecution has failed to prove exemplary of the crimes charged in the Indictment, the Trial Chamber, Judge Nieto-Navia dissenting, makes the following disposition in accordance with the Statute and Rules:

     Stanislav Galic is found GUILTY on the following counts, pursuant to Article 7(1) of the Statute of the Tribunal:

     COUNT 1: Violations of the Laws or Customs of War (acts of violence the primary purpose of which is to spread terror among the civilian population, as set forth in Article 51 of Additional Protocol I to the Geneva Conventions of 1949) under Article 3 of the Statute of the Tribunal.

     COUNT 2: Crimes against Humanity (murder) under Article 5(a) of the Statute of the Tribunal.

     COUNT 3: Crimes against Humanity (inhumane acts – other than murder) under Article 5(i) of the Statute of the Tribunal.

     COUNT 5: Crimes against Humanity (murder) under Article 5(a) of the Statute of the Tribunal.

     COUNT 6: Crimes against Humanity (inhumane acts – other than murder) under Article 5(i) of the Statute of the Tribunal.

     The finding of guilt on count 1 has the consequence that the following counts are DISMISSED:

     COUNT 4: Violations of the Laws or Customs of War (attack 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) under Article 3 of the Statute of the Tribunal.

     COUNT 7: Violations of the Laws or Customs of War (attack 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) under Article 3 of the Statute of the Tribunal.

     The Trial Chamber, by Majority, hereby SENTENCES Stanislav Galic to a single sentence of 20 (twenty) years of imprisonment.

770. Pursuant to Rule 101(C) of the Rules, the accused is entitled to credit for time spent in detention. General Galic was arrested by SFOR on 20 December 1999, and since that date, he has been detained in the United Nations Detention Unit, The Hague, Netherlands. He is entitled to credit for this period towards service of the sentence imposed, together with such additional time he may serve pending the determination of any appeal. Pursuant to Rule 103(C) of the Rules, Stanislav Galic shall remain in custody of the Tribunal pending finalisation of arrangements for his transfer to the State where he shall serve his sentence.

Done on the Fifth Day of December 2003 in English and French, the English text being authoritative.
At The Hague,
The Netherlands