1 Tuesday, 9 October 2007
2 [Closing Argument - Prosecution]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 2.18 p.m.
6 JUDGE ROBINSON: Today we are to have the closing arguments in
7 this case, and we begin with the Prosecution. Mr. Waespi.
8 MR. WAESPI: Good afternoon, Your Honours. Good afternoon,
9 Mr. Tapuskovic, Ms. Isailovic.
10 Today the Prosecution presents its oral closing submission to you.
11 I will start off with a few introductory comments. My colleagues
12 John Docherty and Manoj Sachdeva will then address the sniping and
13 shelling parts of the evidence. Ms. Edgerton will then go into the terror
14 campaign, and we will conclude -- and I will conclude with aspects of the
15 criminal responsibility of the accused and sentencing submissions.
16 I hope that we will stay within the two hours allocated to the
17 Prosecution. Of course we have filed a week ago our comprehensive written
18 brief, and to the extent possible we will try not to repeat ourselves
20 My three colleagues and I will also respond to any relevant issue
21 raised in the Defence brief.
22 Your Honours, when Martin Bell the renowned BBC journalist
23 testified before you, he commented his BBC footage of the aftermath of the
24 Markale II massacre that occurred on 28 August 1995 with these words:
25 "I think it's one of the most shocking of the war. On many
1 occasions, and that was one of them, I was thinking to myself that if you
2 ever tried to make a movie of this war, you couldn't. The scenes going on
3 around me could not be replicated for a movie. They were so terrible, and
4 they were real world and really shocking. And I also felt this cannot go
5 on. We were more than three years into it, and I said to myself, You
6 know, this cannot go on. It has to be stopped in the name of our common
7 humanity. That's what I thought."
8 Martin Bell at page 5.266.
9 Your Honours, Markale II was one of the last and one of the most
10 serious of the uncountable incidents that terrorised the civilians living
11 inside the city of Sarajevo since the siege began in April 1992. You have
12 heard the testimony of many witnesses, internationals, military observers,
13 journalists, locals, who told you what life was like inside the
14 confrontation lines. You will also recall the contemporaneous videos of
15 news reports, the pictures, the daily, weekly UN situation reports.
16 My colleagues will remind you in their presentations of some of
17 these testimonies and other pieces of evidence, all proof of the daily
18 suffering of the civilian population inside the confrontation lines during
19 the siege.
20 Even the most prominent, I guess, Defence witness
21 Colonel Demurenko described how the civilians were worn out, appeared to
22 be lethargic after the long siege. And he was talking about 1995. He
23 added in response to a question by Judge Harhoff that: "If one looks at
24 the human suffering, then it was a case of a full siege just like in
25 Leningrad during the Second World War."
1 Your Honours, the campaign that terrorised Sarajevo did not just
2 start from August 1994 when the accused took command over from
3 General Galic as the commander of the Sarajevo-Romanija Corps, the SRK,
4 the corps responsible for maintaining the siege of the city of Sarajevo.
5 The history of what occurred before August 1994 was addressed extensively
6 in the trial and Appeals Chamber judgements in the Prosecution of
7 General Galic, and also by numerous witnesses during this trial against
8 this accused, Dragomir Milosevic. Of relevance to this case is that there
9 can be no question that before August 1994 the SRK subjected Sarajevo to a
10 prolonged and murderous campaign of terror through shelling and sniping of
11 civilians. During much of this earlier part of the campaign, the accused
12 Dragomir Milosevic held prominent positions in the SRK.
13 The campaign, as I mentioned, started in April and May 1992. I
14 will only refer to two pieces of evidence that relate to that early part
15 of the siege. First, the statement by the minister of health of the
16 then-Serbian Republic of Bosnia and Herzegovina as quoted in Prosecution
17 Exhibits 462, pages 25 and 26. The minister of health who advocated
18 destroying one of Sarajevo's major medical facilities, the Kosevo Hospital
19 so that the enemy has nowhere to go for medical help. And second, P815,
20 in which then-President Slobodan Milosevic is telling French UNPROFOR
21 General Morillon that the bombardment of Sarajevo by Ratko Mladic was
22 bloody, criminal, and that there was no justification for the continued
23 bombardment of the civilian population of Sarajevo.
24 This bloody and criminal campaign continued for 44 months.
25 Your Honours, you heard live testimony about this campaign as it
1 developed. According to witnesses before you who were able to compare the
2 first part of the siege with the situation under the regime of this
3 accused, it was for 44 months the same relentless campaign. The same
4 characteristics, the same dynamics, the same weapons, front lines,
5 soldiers, defenders, the same suffering of the civilians inside the
6 confrontation lines, the same senseless punishing of the civilian
7 population of Sarajevo for what happened elsewhere in Bosnia. In fact,
8 there is evidence, like the introduction of the modified air bombs, that
9 it got even worse.
10 My colleagues will talk in more detail about all aspects of the
11 campaign led by the accused. Let me address a few issues the Defence has
12 raised in the course of the trial and also in their closing brief.
13 Any Defence argument that the reason civilians were killed and
14 injured was due to the deliberate intermingling by the ABiH of military
15 targets with civilians and civilian objects is an attempt to draw
16 attention away from the charges at hand. If the Defence is saying that
17 the accused had information that civilians were mixed among military
18 targets, the accused was under an obligation to gather sufficient
19 information to ensure that any attacks against such a target, the
20 anticipated military advantage outweighed the anticipated loss to civilian
22 While civilian objects like schools and apartments, if indeed used
23 for military purposes, can indeed become legitimate military objects for
24 the time they are so used, there must be some evidence actually supporting
25 this claim and not mere speculation.
1 Second and most importantly, even if certain civilian objects
2 become legitimate objects of attack, any such attack must still be
3 conducted with respect for the principles of distinction and
4 proportionality. It does not carte blanche authorise indiscriminate
5 attacks or attacks causing excessive collateral damage.
6 The trial record shows that not only did the accused make no
7 effort to diminish the impact of the attacks on the civilian population,
8 the SRK did not primarily shell and snipe at military targets. On the
9 contrary, the evidence shows that the SRK, under command of the accused,
10 fired directly at any locations where they knew civilian casualties would
11 result intentionally and systematically. In fact they used air bombs to
12 maximise the damage to civilian lives.
13 This case is not about violations of international humanitarian
14 law committed by the ABiH, the Bosnian Muslim army. It is about the
15 individual criminal responsibility of this accused. Nor is it the case
16 about the suffering which normally accompanies life during an armed
17 conflict. This is a case about the direct intentional, unlawful targeting
18 of civilians as a systematic strategy of the SRK under the command of the
19 accused. The evidence in this case is also not about civilians being
20 killed by accident in crossfire between the warring factions. Civilian
21 witnesses who gave evidence of the direct targeting of themselves, their
22 families, and their communities, did not testify to armed combat
23 operations in the vicinity, to fighting breaking out near them, or to
24 living in fear of a battle occurring in their neighbourhoods. Instead,
25 they testified to being targeted at purely civilian locations, engaging in
1 purely civilian activities, and to living in sheer terror that they would
2 be intentionally targeted whilst engaging in a daily effort to survive.
3 On 8 July 1995, to look at this issue from the UN perspective, the
4 UNPROFOR weekly situation report prepared by David Harland stated:
5 "Sniping and mortaring are still at a reasonably high level. This
6 seems to have no particular military value but contributes to a general
7 atmosphere of terror in the city."
8 Prosecution Exhibit 20, page 2.
9 The evidence shows that the accused and the SRK whom he commanded
10 appear to have a policy of not aiming at military targets but targeting
11 civilians instead.
12 Witness Fraser testified that neither corps headquarters was
13 attacked. Page 1796. Fraser added:
14 "Indirect fire from the Muslims was replied by indirect fire from
15 the Serbians, but it was a lot more and not directed to the headquarters.
16 It was just directed to the city."
17 Page 1801.
18 Actions of the Bosnian Muslim army, as I said, in this regard are
19 not relevant to the issue at hand. The amended indictment charges the
20 accused with violations of the Laws and Customs of War, crimes against
21 humanity. Indirect fire from the ABiH does not justify the intentional
22 and unlawful targeting of civilians even where the motive is or might be
23 response or retaliation. Regardless of the motive, if the primary purpose
24 of the attacks was to spread terror, the means and methods are contrary to
25 the international law and the accused bears individual criminal
2 As David Harland testified, page 324 and 25, "Most," and I quote:
3 "Most of the military activity that I was reporting on was not
4 military activity as you would conventionally understand it. Most of it
5 was undirected or semi-directed artillery fire against civilian inhabited
7 And David Harland was the longest serving UN official in Sarajevo
8 with vast amount of experience. You saw him as the first Prosecution
10 Your Honours, the civilians in Sarajevo suffered directly from the
11 criminal means and methods used by the SRK under the accused. The SRK was
12 not fighting a conventional war between two military forces. They were
13 carrying out a terror campaign against Sarajevo's civilian population.
14 Let me come to a second issue. On many occasions, and again in
15 their closing brief, the Defence tries to advance the theory that nothing
16 happened during the indictment before the start of the ABiH attempt to
17 break out of the city in June 1995 when the situation of the encircled
18 population became truly desperate. Evidence in this trial shows a
19 completely different picture. I would like to refer you to only a few
20 examples mainly based on UN reports, Prosecution Exhibit 10, 12, 15, also
21 the evidence provided by General Smith gives a very good account of what
23 Let me start in late 1994. P10, of 10 December 1994, states that
24 the Serbs made UNPROFOR's task almost impossible:
25 "Having pushed UNPROFOR to brink of withdrawal, e.g., for instance
1 by not allowing any humanitarian convoys into the city, allowing almost no
2 gas into the city and with Serbs firing small guided missiles and
3 anti-tank rockets into the downtown area causing a number of civilian
5 Page 6 of Prosecution Exhibit 10.
6 Next Prosecution Exhibit 12, a UN report in mid-April 1995 shows
7 that the military situation in the city remained tense and mortar shells
8 fell in the populated areas of the city causing deaths and casualties, and
9 the fuel situation was so bad that UNPROFOR operations were seriously
10 affected. The airport of Sarajevo was closed and eight international
11 non-military hostages such as NGO workers were held by the Serbs.
12 Prosecution Exhibit P12, page 1.
13 Also in April, Your Honours, we of course have the first
14 launchings of air bombs in the -- into Sarajevo. Prosecution Exhibit 703.
15 In fact, in April 1995, the situation was so bad for the civilians
16 that the Bosnian Ministry of Interior made the decision to forbid the
17 gathering of people in public places in order to avoid large-scale
18 incidents. Page 2 of Prosecution Exhibit 12.
19 In early June 1995, Your Honours, the food situation in the city
20 was rapidly deteriorating. Prosecution Exhibit 15, page 3. And this was
21 due to the fact that the UNHCR land convoys could no longer operate. And
22 in the same exhibit, Radovan Karadzic declared all UN Resolutions that
23 applied to Sarajevo null and void. Prosecution Exhibit 15, page 3.
24 THE INTERPRETER: Could you slow down a little, please.
25 JUDGE ROBINSON: You heard that.
1 MR. WAESPI: I'm sorry. Yes.
2 The trial record is replete, Your Honours, with evidence of the
3 suffering of the civilian population inside Sarajevo during a time the
4 Defence considers to be a lull.
5 Led me address lastly before I turn over to my colleague
6 Mr. Docherty the role of the several schedule incidents and our evidence
7 in general.
8 Another Defence argument was that the indictment or the
9 allegations of a campaign are supported only by the selected incidents
10 listed in the indictment. That, of course, is not the case. As is
11 explicitly stated in the indictment and has always been our position, the
12 scheduled incidents are illustrative and of course upon the orders,
13 Mr. President, Your Honours, we had to reduce them by roughly one-third.
14 There is, however, other additional significant and necessary evidence to
15 prove the campaign. In other words, the evidence of the campaign of
16 shelling and sniping and of terror is supported by the scheduled
17 incidents, by evidence of unscheduled incidents and by other general
18 evidence of witnesses and documents showing that throughout the indictment
19 period there existed a campaign of shelling and sniping of civilian
21 It is critical that the proof of the campaign depends on different
22 types of evidence of the sort I just mentioned, not simply the scheduled
23 incidents. My colleagues will address this in more detail with relation
24 to shelling and sniping.
25 Let me now hand over to Mr. Docherty.
1 MR. DOCHERTY: Good afternoon, Mr. President. Good afternoon,
2 Your Honours. Good afternoon, Counsel.
3 The Prosecution has proven the existence of a campaign against
4 civilians that was conducted by the SRK under the accused's command and
5 during the indictment period. One component of this campaign was the
6 deliberate sniping of civilians. The evidence proving this is set out in
7 detail in the Prosecution's closing brief, and I shall not repeat here
8 material that is set out in that brief but shall only briefly summarise
10 The accused ordered, planned, and/or aided and abetted this
11 sniping campaign. He is therefore criminally liable for counts 2, 3, and
12 4 of the amended indictment under Article 7(1) of this Tribunal's Statute.
13 More than that, the accused failed to take any measures to either prevent
14 this illegal sniping campaign or to punish its perpetrators even though
15 those perpetrators were troops over whom he had effective control and the
16 accused knew that they were carrying out a campaign of terror. He is
17 therefore criminally liable also, or in the alternative under Article 7(3)
18 of the Tribunal's Statute for the sniping campaign.
19 The relevant sections of the Prosecution's closing brief to which
20 I respectfully refer the Chamber for a full discussion of the evidence
21 demonstrating the existence of a sniping campaign include the campaign
22 section itself at pages 5 through 9, the introduction to sniping at pages
23 15 to 18, and of course the scheduled and the unscheduled sniping
24 incidents that are found throughout the discussion of incidents. Those
25 incidents are organised by area, not by type of incident, and that is
1 found at pages 18 to 98.
2 I intend to give a very brief overview of the sniping campaign
3 evidence but again repeat that the best and most thorough evidence is
4 found in the Prosecution's closing brief. I shall then respond to some of
5 the Defence criticisms of that evidence and during my time hope to discuss
6 three other matters: Defence criticisms of the report of our expert
7 demographer Ewa Tabeau; the issue of the control of the high ground; and
8 the claimed, but as we shall see baseless, defence of alibi.
9 Vekaz Turkovic, a crime scene technician with the Sarajevo police
10 stated during the war calls for help on sniping and shelling came in from
11 all other the city at all hours of the day and night at all times of the
12 year, and that he and his colleagues in law enforcement spent 80 per cent
13 of their time responding to these calls and working on these cases. When
14 the war ended, these calls dropped to zero. A spreadsheet of police
15 activity P602 was introduced. Now, of course this spreadsheet cannot be
16 used as evidence of origin of fire, but there is a mass of other evidence
17 in the discussions of the individual incidents indicating uniformly that
18 the origin of fire was SRK territory, and contrary to the Defence
19 assertions made at paragraphs 143 to 146 of their closing brief, this
20 spreadsheet is perfectly good evidence of the intensity of the nature, of
21 the number of incidents. And when coupled with the origin of fire
22 evidence that was independently introduced, it is powerful evidence of the
23 existence of a campaign.
24 JUDGE ROBINSON: Mr. Docherty, you place obviously a lot of
25 emphasis on this campaign, the proof of a campaign. Suppose you don't
1 prove the existence of a campaign. Does your case fail?
2 MR. DOCHERTY: No, Mr. President, it certainly does not. The
3 allegations in the amended indictment charge the accused with crimes
4 against humanity and with murder and with inhumane acts. The existence of
5 a campaign has relevance to the terror count and because crimes against
6 humanity require a -- that the individual attack be part of a pattern it
7 has some relevance to the crimes against humanity, but I would put it that
8 a campaign, that in fact all of the charges in the indictment can be
9 proven in the absence of or if there is reasonable doubt about the
10 existence of a campaign.
11 However, I should hope that there would not be at the end of the
12 day reasonable doubt about the existence of a campaign. The evidence
13 concerning that being in my view so very strong and consisting of the
14 scheduled incidents, the unscheduled incidents, and then what I call the
15 overview evidence from witnesses such as Martin Bell, Mr. Turkovic, the
16 various internationals who came here and gave evidence before you, all of
17 whom spoke of the intensity, of the duration, of the thoroughgoing nature
18 of the SRK's attacks on the civilian population.
19 JUDGE ROBINSON: I raise the question because it is almost as
20 though you have made the campaign an element of the crime, of crimes
21 against humanity and the crime of terror when it is not. What you have to
22 prove are the ingredients required for a crime against humanity, and those
23 are well known, and the ingredients for the crime of terror, perhaps not
24 as well known as the first. And so it has always struck me, I've always
25 wondered why the Prosecution has set itself this task as though it has
1 transformed the campaign into a legal requirement for the -- for proof of
2 the crimes.
3 MR. DOCHERTY: I am sorry if we have given that impression,
4 Mr. President, and two things. First of all, my colleague Ms. Edgerton
5 will speak specifically to the terror count. But second of all, the
6 evidence in this case does show the existence of a campaign, and since the
7 evidence shows the existence of a campaign and shows that a campaign was
8 what the SRK was about for the 15 months of this indictment period, by
9 showing this campaign we necessarily show the broad pattern of attacks
10 necessary for a crime against humanity, and we also, of course, show the
11 individual inhumane acts, but, you know, the SRK, its officers and its
12 men, didn't have the elements of crimes against humanity in mind as they
13 went about their daily business around Sarajevo. They had a campaign to
14 conduct, and therefore by illustrating that campaign we show that that
15 campaign necessarily proves crimes against humanity and inhumane acts
16 and -- or indeed all of the crimes alleged in the indictment.
17 So it is meant to be the best, the most thorough, the most
18 accurate description of the reality of what the SRK was about.
19 JUDGE ROBINSON: Yes. I think you have put it very well there. I
20 see it as merely descriptive, illustrative of the Prosecution's case.
21 MR. DOCHERTY: Yes.
22 JUDGE ROBINSON: It's not a legal requirement. It's not an
24 MR. DOCHERTY: It is not an ingredient. It is not an element. It
25 is a description of what was really happening, and of course by describing
1 what was really happening we are legally describing crimes against
2 humanity and inhumane acts and so on.
3 JUDGE ROBINSON: It's as though -- I'm trying to think of a
4 parallel. If a man is charged with -- with raping, say, in domestic
5 jurisdiction, and it is said that he's a serial rapist but he's charged
6 with raping one particular individual, the Prosecution's case is that this
7 man is a serial rapist. He has raped perhaps 12 or 20 women, and that is
8 described in the Prosecution's case. But if the Prosecution fails to
9 prove the seriality of the offence, it hasn't failed if it nonetheless
10 proves he has raped the particular person charged in the indictment.
11 MR. DOCHERTY: Yes.
12 JUDGE ROBINSON: Saying that he's a serial rapist is nearly a way
13 of describing and illustrating the Prosecution's case. And when I read
14 your brief as well as the case that has preceded this one, I wonder if
15 the -- the two have not been confused.
16 MR. DOCHERTY: I --
17 JUDGE ROBINSON: Because so much -- so much time is spent on
18 trying to prove this campaign. Of course it may well be that if you prove
19 it you prove your case.
20 MR. DOCHERTY: That is my belief, Mr. President, that if we prove
21 it, we have proven our case. And if I may respond to your analogy with
22 one of my own. It's usually in domestic prosecutions the motive for a
23 crime is not an element of a crime. Nevertheless, describing the motive
24 is a great assistance in capturing the crime and in showing the pattern
25 into which the crime fits. And here the campaign is what the SRK was
1 doing, crimes against humanity, inhumane acts are the legal categories
2 into which that behaviour fits.
3 JUDGE ROBINSON: And that is what you are required to prove.
4 Thank you.
5 MR. DOCHERTY: Further evidence generally of the intensity of the
6 sniping against civilian targets and of the exclusively civilian nature of
7 those targets is found in one of the Prosecution's first witnesses,
8 Thorbjorn Overgard, a UNMO from Norway, who was stationed in Hrasnica, who
9 investigated sniping incidents in Hrasnica almost every day and who
10 testified at pages 636 that the origin of fire was always SRK territory
11 and the victim was always a civilian. He never investigated a single case
12 in which a soldier had been shot. There is evidence in this case that the
13 SRK had the means to snipe on civilians. Silencers, telescopic sites,
14 requisitions for sniping ammunition --
15 THE INTERPRETER: Please slow down for the interpreters, thank
17 MR. DOCHERTY: And I refer to Exhibit P664, P765, 766, and 767.
18 Dr. Tabeau testified that even on militarily quiet days civilians
19 continued to be killed in violent, war-related ways mostly as a result of
20 sniping. Speaking of Ms. Tabeau, I divert for a moment or two because at
21 paragraph 139 and following of the Defence brief there are some criticisms
22 of her work which in my view and the Prosecution's view are unfounded.
23 Paragraph 139, the Defence asserts that Ms. Tabeau only gives casualty
24 figures for within the confrontation lines.
25 The accused on trial here is, of course -- was, of course, the
1 commander of the SRK, and therefore of course the analysis will focus on
2 his alleged victims and they will be found inside the confrontation lines.
3 At paragraph 140 the Defence claims that Ms. Tabeau mixed up the
4 indictment period with the total time of the conflict. In fact, when she
5 testified at page 5549, she made clear that she used the total conflict
6 time only by means of -- for means of context.
7 I also would refer the Tribunal in terms of unscheduled sniping
8 incidents particularly to Prosecution Exhibits 92 and 95. Both of those
9 are the 92 ter evidence of victims of scheduled incidents who also
10 testified that they themselves had not only been victims or had known a
11 victim of a scheduled incident but also of an unscheduled incident, which
12 is evidence of the thoroughgoing nature of this activity that it could
13 strike multiple citizens of Sarajevo multiple times.
14 Police officer Nedzib Djozo testified that every day there was
15 sniping from Spicasta Stijena and that many civilians were killed or
16 wounded as a result.
17 Speaking of Sharpstone, the evidence is clear, the Defence
18 contention to the contrary, notwithstanding that the SRK controlled
19 Sharpstone throughout the indictment period. The Defence in paragraph 184
20 of their brief says that Sedrenik was a military zone throughout the
21 conflict but when one looks for a citation or a footnote of authority one
22 finds none. There is a claim that the local inhabitants never referred to
23 it by that name and a claim that in fact it did not overlook Sedrenik but
24 Grdonj the citation is to page 7059 but when one looks at that one finds
25 only the unremarkable and uncontroversial assertion that Sharpstone and
1 Grdonj and Hum are all part of the same geological feature.
2 But it is when we come to the question of where the confrontation
3 lines are that the Defence submissions become truly confused, and on this
4 I would invite the Chamber to compare Exhibits D256 and D257. These are
5 the same photograph. Two different Defence witnesses were asked to draw
6 the confrontation lines on those photographs. They vary considerably.
7 Against this, the Prosecution has presented clear evidence from
8 local inhabitants, United Nations military officers, law enforcement
9 officers, and even from Defence witnesses that Sharpstone was under the
10 control of the SRK and that therefore sniping from Sharpstone is sniping
11 that came from the SRK. Any claim that sniping from Sharpstone came from
12 the ABiH is unfounded. As police officer Nedzib Djozo testified, Sedrenik
13 where the victims where was not even visible from the ABiH positions which
14 were at the bottom and two the side of the Sharpstone feature. T3689.
15 And finally there is one set of facts that I don't believe the
16 Defence has even tried to refute, which is that even if an ABiH soldier
17 could see Sharpstone, and the evidence is that this soldier could -- see
18 Sedrenik, and the evidence is this soldier could not, any ABiH soldier who
19 actually took such a shot would be taking his life in his hands as he
20 would have to stand up and turn his back on the enemy to fire into
21 Sedrenik. And even over and above that, this hypothetical soldier would
22 have been firing at his own friends and family since the ABiH soldiers in
23 that area were locally recruited. T3690.
24 A number of the Prosecution's scheduled incidents concern firing
25 upon trams. In each and every case, every witness to these incidents
1 testified unequivocally that there were no ABiH military personnel or
2 equipment in the area and that there was no combat going on. Despite this
3 unanimity of evidence, the Defence asserts in paragraph 88 that it was
4 irresponsible of the Bosnian government to allow trams to run near the
5 front lines. The claim seems to be that that made them vulnerable to
6 being caught in a crossfire, to which the most readily available, most
7 obvious response is: What crossfire, when witnesses have said that there
8 was no combat going on?
9 The closest the Defence ever came to making out a claim of
10 crossfire, and it really was not close at all, was a claim respect to
11 sniping incident 13 on 27 February, 1995, that a firefight was going on at
12 the Vrbanja bridge at the same time that a tram was sniped. And if we
13 could please see Prosecution Exhibit 182 on the screen.
14 While that's coming up, General Fraser was cross-examined about
15 this. The UN report was given to him. He testified at page 1887 that he
16 read this report to be about two separate incidents with the tram sniping
17 completely separate from the firefight at the bridge. But this Defence
18 claim of crossfire was definitively shot down by witness Alma Cehajic
19 Mulaosmanovic who testified that the bridge and tram were outside of each
20 other and marked a photograph on the screen in front you to make this
21 plain. On this photograph, Your Honours, the blue marks on the right are
22 the bridge. The two parallel lines immediately south of the Tito barracks
23 are the area where the sniping occurred, and the red circle is the
24 witness's evidence as to the origin of fire.
25 One can see here that sniping incident 13 was in no way the result
1 of a tram being caught in a crossfire.
2 The Defence also claimed that paragraph 4 of Prosecution Exhibit
3 175 is evidence that soldiers and civilians were mixed up on these trams.
4 When one goes and checks the reference, one sees that a single soldier was
5 on a tram. Whether he was in or out of uniform is not known, and in light
6 of what happened next, not important, because that tram, the witness goes
7 on to say, was shot with 30 machine-gun bullets in and just under the
8 windows of the tram.
9 And finally the Defence claimed that the Bosnian government, by
10 running the trams, was putting civilians in harm's way is simply
11 unfounded. The Defence does not mention in its brief that the trams only
12 ran during cease-fires and that therefore each and every one of the four
13 tram sniping incidents about which the Prosecution led evidence is a
14 cease-fire violation.
15 The Defence also makes the claim that the S curve about what we
16 heard so much evidence in front of the Holiday Inn was not visible from
17 the Metalka building overlooking the fact that it is visible from
18 elsewhere in Grbavica and also overlooking, of course, that trams slow
19 down before they enter the curve and speed up slowly as they are leaving
20 the curve so that their total vulnerable time is much greater than simply
21 the time that they spend in the S curve.
22 Mr. President and Your Honours, I want to spend just a couple of
23 minutes now talking about the defence of alibi and the issue of who
24 controlled the high ground.
25 The Prosecution has put forth a good deal of evidence in its
1 closing brief concerning the accused's effective control over the
2 Sarajevo-Romanija Corps. The only real challenge, I submit, to this
3 evidence has been a claim that the accused is not liable for the Markale
4 massacre of 28 August 1995, because on that day he was in the hospital in
5 Belgrade having an eye injury attended to.
6 As we say in our brief, the fact that the terror campaign
7 continued in the accused's absence is actually incriminating. It shows
8 that the machinery which the accused had set in motion could continue even
9 in his absence. It is also worth drawing the Chamber's attention, and I
10 respectfully do draw your attention, to the testimony of Defence witness
11 Veljovic who testified at pages 5844 and 45 that the accused, of course,
12 would have been briefed about events upon his return from Belgrade and yet
13 despite this there is no evidence whatsoever that the accused ever
14 prosecuted anyone or disciplined anyone for the dreadful crime that was
15 committed on August 28th.
16 On the issue of who controlled the high ground around Sarajevo.
17 Let me start this discussion again with something I've been talking about
18 for a couple of minutes, which is Grbavica.
19 In paragraph 41 of their brief, the Defence concedes that Grbavica
20 was controlled by the SRK. It was hemmed in on three sides by the ABiH
21 and on the fourth side was the front line, the Miljacka river. The
22 Defence then goes on to claim, however, that this does not matter in that
23 Grbavica is dominated by Debelo Brdo. They give a transcript cite for
24 this proposition, and unfortunately when one checks the source one finds
25 that it flatly contradicts the Defence assertion. It is a citation to the
1 testimony of General Fraser, and in it he first agrees with counsel that
2 there is a pretty good view of Sniper Alley from Debelo Brdo, adds, but
3 it's a long way away though. And in any event, the SRK, as General Fraser
4 testified, looked down on Debelo Brdo. Transcript 1768.
5 It is also worth -- or I point out that line of sight is important
6 for direct-fire weapons such as rifles. It is not important for
7 indirect-fire weapons such as mortars, and that the only scheduled
8 incidents that we refer to that we claim came from a hilltop are those
9 that came from Sharpstone. But over and above Debelo Brdo, there is
10 significant evidence that it was the SRK that controlled the higher points
11 all the way around Sarajevo. In the south-east, Trebevic, in the
12 north-east Sharpstone, Mrkovici, and Poljane and it is from these that the
13 city was bombarded.
14 [Trial Chamber confers]
15 JUDGE ROBINSON: Mr. Docherty, I want to go back to the issue of
16 what you call the Defence argument about an alibi, although it doesn't
17 appear to me to be -- to be a question of alibi at all.
18 When the accused went to the hospital to have his eye treated, at
19 that time the evidence is, if my recollection is correct, that the
20 authority and control had been transferred to his deputy, so that he was
21 not in de jure control of the operations. So I don't see this really as
22 raising a question of alibi. It is simply that he lacked the de jure
23 authority. De facto may be another matter, but he lacked the authority at
24 that time. And how does it answer that argument for you to say that the
25 machinery that he had set up was so well-oiled that it continued to
1 function efficiently in his absence?
2 MR. DOCHERTY: My recollection, Mr. President, was that the
3 Defence put into evidence a number of medical records without our
4 objection because indeed we do not contest that he was absent from the
5 theatre at this time, but it is also worth pointing out that he returned
6 from -- from Belgrade, that he would have been, according to Mr. Veljovic,
7 fully briefed, that he took no action.
8 So there are two things going on. Number one, the accused has set
9 up, has administered over a period of months this, without opening that
10 whole can of worms, campaign. That campaign continues to run --
11 JUDGE ROBINSON: What about 7(3).
12 MR. DOCHERTY: 7(3), Your Honour, to paraphrase, says that if you
13 have effective control over troops and you know they are committing crimes
14 and you fail to take the reasonable and necessary steps that you can
15 take - the impossible is not required - reasonable and necessary steps
16 then you are guilty of the crimes committed by those troops.
17 JUDGE ROBINSON: And you were submission is that notwithstanding
18 that he was in the hospital having his eye tended to and even more
19 significantly, in his absence the authority over the troops had been
20 transferred to somebody else that he nonetheless had effective control?
21 MR. DOCHERTY: No. Well, it's that argument but that's an
22 alternative argument. The primary argument of course is that he ordered
23 and he planned the campaign, and this is where the campaign does come in.
24 He ordered and planned a campaign of terror against the civilian
25 population. The fact that I plan to rob a bank next week and that my
1 confederates go ahead and rob the bank next week but that I leave town
2 does not absolve me of criminal liability for ordering and planning that
3 bank robbery any more than it should absolve the accused of criminal
4 liability for ordering, and planning, and aiding and abetting the campaign
5 of terror against the civilians of Sarajevo during the indictment period.
6 JUDGE ROBINSON: Very well. We'll hear the Defence on that point.
7 MR. DOCHERTY: Just briefly to finish up the issue of control of
8 the high ground. To take two examples, Zuc and Hum. The Defence argues
9 and they are correct that the ABiH had control of these features, but they
10 overlook the fact these features are themselves surrounded, overlooked,
11 controlled by far higher summits, and Trebevic, if we look at the map D59,
12 which was the map that hung in the courtroom for, I believe, days on end,
13 Trebevic is above a thousand metres. In the south Grad and Faletici are
14 in the 850 to 1.000 metre heights range. Poljine in the north and Paljevo
15 in the west are both 900 to a thousand metres. All of these surrounding
16 hills are littered with the sort of heavy weaponry that could be used and
17 was used to pound Sarajevo day after day during the indictment period.
18 JUDGE ROBINSON: What's the -- the legal significance of holding
19 the high ground?
20 MR. DOCHERTY: There is factual significance in holding the high
21 ground in that -- well, there are two -- two issues here.
22 First of all, with respect to indirect fire weapons like mortars,
23 it is -- it does not matter who holds the high ground. What matters is
24 that the mortars are fired from outside the city into the city. For
25 direct fire weapons it does matter. Direct fire weapons one does need to
1 see the target, but again, I do think that the question of control of the
2 high ground, a fair amount of time was spent on it, perhaps not entirely
3 necessarily since, as I say, the control of the high ground for direct
4 fire weapons that we allege is important is the control of the Sharpstone
5 feature which I think when one examines all of the evidence is clearly --
6 was controlled by the SRK. So there is also, of course, in the
7 introductory matters in the in the indictment, in the amended indictment,
8 a reference to the SRK controlling high ground around Sarajevo.
9 So I would put it, however, that although the ABiH did hold a hill
10 here and a hill there, all of these are the Debelo Brdo situation, which
11 is the ABiH does hold an elevation, but they do not hold the best real
12 estate in that particular area because the SRK holds even higher ground
13 that looks down upon the ABiH feature, and that the overall picture
14 painted at the beginning of the -- of the amended indictment, which is
15 that Sarajevo lies in a valley and that it is dominated by the hills that
16 surround that valley and that those hills were dominated by the SRK is
17 correct, notwithstanding that the ABiH did, of course, hold an elevation
18 here and an elevation there. The overall pattern is that the SRK held the
19 high ground looking down into the valley of the Miljacka river, looking
20 down into the city of Sarajevo.
21 Mr. President, Your Honours, in a couple of places the Defence has
22 made assertions in its brief that really are not supported by the evidence
23 at all. In particular, I want to draw the Chamber's attention to
24 paragraphs 150 and 151 of the Defence's closing brief. In those
25 paragraphs, the Defence asserts first that UNPROFOR and the UNMOs had
1 difficulty counting the number of wounded because they were not always
2 allowed access to Sarajevo hospitals, and then go on in paragraph 151 to
3 say that in any event, the numbers of wounded were inflated because
4 wounded were brought in from outside Sarajevo through the tunnel and put
5 in hospitals around town. That's paragraph 151.
6 There is a cite. It is to the testimony of General Karavelic. He
7 does say that the wounded were transported in the tunnel. To take that
8 citation to General Karavelic and to turn it on its head, I mean obviously
9 General Karavelic is talking about evacuating wounded from the city. And
10 to make the completely unfounded claim that the Bosnian authorities were
11 inflating the numbers of wounded by bringing civilians in wounded from
12 elsewhere in Bosnia and planting them in hospitals that then couldn't even
13 be counted because the Defence also claims that the United Nations
14 couldn't get into the hospital, is an argument that really should not
15 delay the Chamber for very long.
16 The same might be said of some of the allegations that the Defence
17 has made concerning the quality of the police work done by Bosnian law
18 enforcement. For example, at paragraph 153, the very serious allegation
19 of tampering with a crime scene is made, but it turns out that if anything
20 happened what happened is that the scene was washed. This has not the
21 slightest effect, as witnesses testified, on the shape, the depth, or the
22 position of a crater. It also has no effect on statements of witnesses.
23 The Defence seeks to make much of the absence of investigating judges, and
24 yet, investigating judges, it appears, did not always go along with the
1 JUDGE ROBINSON: Is there evidence that washing the scene had no
2 effect on the -- what is it you say?
3 MR. DOCHERTY: The shape of a crater. The size of a crater, the
4 depth of a crater.
5 JUDGE ROBINSON: You have adduced evidence to that effect.
6 MR. DOCHERTY: Yes, Mr. President. We have adduced evidence to
7 that effect. From more than one witness. If you wash off the crater and
8 get the grisly remains of one of these incidents away,, the crater is
9 still there and the crater canter analysis is what matters here.
10 Similarly no prejudice can be shown from the absence of an
11 investigating judge. Nothing can be pointed out that the police did or
12 did not do that would have been different had the investigating judge been
14 The claim is made that photographs were not taken of victims in
15 situ, but of course once a victim falls down, the victim's orientation as
16 to the origin of fire also changes and therefore photographs of victims at
17 the scene tell us nothing of forensic significance. The same is true of
18 the Defence claim that biological samples were not taken. The absence of
19 biological samples, the presence of biological samples for that matter,
20 would help tell us absolutely nothing concerning the origin of fire.
21 In conclusion, there was sniping systematically directed at the
22 civilians of Sarajevo. The accused controlled that sniping.
23 General Fraser said that if approached about sniping, if the accused was
24 approached about sniping, things would get better for a while and then
25 they would go downhill again. The anti-sniping agreement falls squarely
1 into that pattern. Things got better for a while and then went downhill.
2 But by signing that agreement the accused made it crystal clear that he
3 controlled the activities of SRK snipers in Sarajevo, as do exhibits 765,
4 766, 767 in which the accused requisitions sniping ammunition for his
6 Patrick van der Weijden of the Dutch army, a sniping expert and
7 experienced sniper himself with military experience in Bosnia, a trainer
8 for the Dutch army of other snipers says that he visited the scene of
9 every single scheduled sniping incident and in every single case fire
10 should have been withheld because the shooter could not have identified
11 the victim positively as a combatant.
12 The Prosecution has proved its sniping case. Thank you,
13 Mr. President, and thank you, Your Honours.
14 JUDGE ROBINSON: Thank you.
15 Mr. Sachdeva.
16 MR. SACHDEVA: Good afternoon, Mr. President, Your Honours, and
17 good afternoon to the Defence.
18 Mr. President, Your Honours, the Prosecution submits that it has
19 proven beyond a reasonable doubt that the three mortar incidents, the one
20 cannon and 11 modified air bomb incidents listed in schedule 2 of the
21 amended indictment were committed by the accused and his SRK forces,
22 thereby proving counts 1, 5, 6 and 7 of the amended indictment.
23 I want to indicate at the outset that in the limited time that I
24 have I don't intend to repeat the Prosecution's closing submissions
25 regarding the shelling component of the amended indictment which can be
1 found within pages 9 to 95 of the said brief. Rather, I will focus on two
2 scheduled shelling incidents contained in schedule 2, where necessary
3 respond to some of the Defence assertions made on them, and make
4 submissions generally on the subject of modified air bombs.
5 Mr. President and Your Honours, in the beginning I wish to remind
6 the Trial Chamber of the following significant pieces of evidence that
7 must in the Prosecution's submission be borne in mind when determining the
8 ultimate issue, that is, the origin of fire, and this is quite apart from
9 the scientific evidence that I will deal with in a moment.
10 The first is from Defence Witness Glavas. He was a soldier with
11 the Sarajevo-Romanija Corps stationed on the front lines, and at T8748 he
12 was asked this question:
13 "So in fact what you're saying is since you were surrounded, it's
14 logical to assume that when a shell lands in your area it comes from the
15 people who are surrounding you; is that correct?"
16 The answer was an emphatic "Yes."
17 The second piece of significant evidence comes from General Rupert
18 Smith. He was the UNPROFOR commander throughout most of 1995 and was
19 stationed in Sarajevo. When asked about the origin of fire for the
20 Markale incident, he said and I quote: "And finally, it is my experience
21 of being in a siege that round that fall on the inside of a siege tend to
22 come from outside the siege."
23 And, Mr. President and Your Honours, this is the incident that I
24 now turn to, the Markale massacre, scheduled shelling incident 23. The
25 Markale market Massacre on the 28th of August, 1995, in which over 40
1 civilians died and over 70 were injured represented the climax of the
2 accused's campaign of terror through shelling of civilians in Sarajevo.
3 It was the second most notorious incident in this location, just as the
4 first Markale marketplace massacre on the 5th of February 1994 also
5 caused, by a single 120-millimetre mortar round, marked the tenure of
6 General Galic --
7 JUDGE ROBINSON: On behalf of the interpreters may I ask you to
8 slow down.
9 MR. SACHDEVA: I apologise to the interpreters.
10 Just as the first marketplace massacre on the 5th of February,
11 1994, also caused by a single 120-millimetre mortar round, marked the
12 tenure of General Galic, General Milosevic's predecessor, so the shelling
13 on the 28th of August, 1995, marked the tenure of the accused. The
14 Markale shelling attack symbolises the unnecessary suffering of the
15 civilian population in Sarajevo during the accused's tenure as SRK
16 commander. And, Mr. President, Your Honours, the Prosecution does call
17 this a shelling because when one looks at the hard scientific facts on the
18 trial record, this is exactly what it was, a single round of a
19 120-millimetre mortar grenade fired from SRK-controlled Mount Trebevic by
20 an SRK mortar crew on a late summer morning, exploding at the marketplace
21 in downtown Sarajevo, killing and maiming civilians.
22 Mr. President, Your Honours, there are versions of events that are
23 quite -- that are supported by evidence and there are versions that are
24 not. Quite simply, only the Prosecution's version of events is supported
25 and corroborated by the evidence you have heard in this trial. The
1 Prosecution's account of the Markale massacre is a detailed reconstruction
2 based upon a painstaking evaluation of the scientific evidence developed
3 during four separate official contemporaneous investigations.
4 Because the Prosecution's account is based on evidence, we are
5 able to tell the Court that it has been established beyond a reasonable
6 doubt that a 120-millimetre shell fired from SRK positions on
7 Mount Trebevic, situated south of the explosion site, flew along an
8 approximate 170-degree direction, entered the busy market at an angle of
9 no shallower than 67 degrees, hit a point in the main road roughly 4.8
10 metres from the wall of the south-facing building and exploded, causing
11 the human destruction that is graphically depicted in video P623 and
12 P355. The evidence of civilian casualties is also recorded in medical
13 records and autopsy reports and they are P71 through to P82. And
14 significantly the evidence of casualties is witnessed firsthand by victims
15 of the shelling themselves such as witness Mesuda Klaric in P648.
16 The detailed analysis of the technical evidence is contained in
17 paras 302 to 338 of the Prosecution's final brief. Suffice it to say that
18 the first UN investigation conducted by UNMO witness Konings who arrived
19 at the scene 30 to 40 minutes after the explosion concluded that a
20 120-millimetre mortar round had exploded and this is contained in his
21 report, P85. This was confirmed by a separate independent Bosnian
22 investigation in Prosecution Exhibit 252, under seal, and a further UN
23 report conducted by the French Engineering Cell at Prosecution Exhibit
24 357, page 6.
25 The direction of fire of the shell, that is 170 degrees, plus
1 minus the 10 degree margin of error is also not in doubt. Konings, the
2 Bosnian MUP investigation, and the French investigation all concluded the
3 approximate direction of fire to be near the 170 degree mark. Expert
4 witness Higgs, who as the Trial Chamber recalls testified as an expert in
5 the Galic case and whose whole career had been devoted to mortars and who
6 was the most senior officer in the British Army regarding mortars,
7 confirmed that the 120-millimetre explosion had occurred after examining
8 photographs of the crater. Even Defence expert witness Garovic said that
9 the correction was 175 degrees and I refer Your Honours to paragraph 313
10 to 318 of the brief.
11 It is clear that the 120-millimetre shell flew in from south of
12 the city in the direction of Mount Trebevic which was indisputably under
13 SRK control. That the shell was fired across the confrontation lines, in
14 other words, in SRK territory, and not from within the confrontation
15 lines, that is within ABiH territory, has been shown beyond a reasonable
16 doubt in large part by the evidence of Witness Thom Knustad. Knustad was
17 a Norwegian UNMO with extensive experience in artillery. On the morning
18 the 28th of August, 1995, he along with his colleagues Paul Conway were
19 posted in a UN observation point called OP1, which was situated close to
20 the confrontation lines to the south of the city towards Mount Trebevic
21 and was roughly one kilometre away from the flight path of the shell.
22 Now why is this important? It is important because Knustad and
23 Conway were deployed at a location that if a 120-millimetre shell had been
24 fired from within ABiH territory along this flight path then Knustad and
25 Conway would have heard it. But the overwhelming evidence is that they
1 did not hear the fire. And this means in the Prosecution's submission
2 that the shell was not fired from ABiH lines. Knustad said it was
3 possible to hear the sound of a 120-millimetre mortar being fired from
4 some 4 to 5 kilometres away. Higgs confirmed that it could be heard from
5 some 3 to 4 kilometres away and Defence expert Garovic corroborated this
6 by saying it could be heard from some 5 to 6 kilometres away.
7 THE INTERPRETER: Kindly slow down for the interpreters, please.
8 MR. SACHDEVA: I apologise again.
9 He also agreed that if an observer were one kilometre away from
10 the firing position, he would have heard it.
11 Knustad testified that he did not hear a mortar being fired from
12 within the confrontation lines up until he saw the smoke-stack rising from
13 the marketplace in town. He testified that if it had been fired from
14 within the lines and in the direction of fire of 170 degrees, he would
15 have heard it.
16 The significance of this evidence is amplified by the UNMO team
17 leader Konings. He was Knustad's team leader and he held Knustad in high
18 professional regard, saying that he was an experienced military man with
19 experience in artillery and mortars. Konings testified that OP1 reported
20 to him that they did not hear any outgoing round. In answering a question
21 as to the significance of the UNMOs at OP1 not hearing the round being
22 fired, he said at T 3585 and I quote:
23 "Well, it is a missing clue in trying to designate the origin of
24 fire of that specific round. In case it would -- the round would have
25 been fired from Bosnian territory, it would have been done -- in
1 combination with this minimum angle of impact it would have been done with
2 charge zero, the lowest charge you can fire. If you trace that back from
3 the origin of impact you would have come in the area around OP1. The
4 place of origin of fire would have been in the area around OP1. And since
5 on that quiet day you cannot miss, to my professional opinion, an outgoing
6 120-millimetre round, it's a loud bang. You cannot miss it, you will see
7 it, you will see the flash, you will see the smoke. Well, that brings you
8 to the conclusion that the round came from further away. And since there
9 was no noise heard, it must have come from behind the mountain ridge,
10 which is on the south side of the city of Sarajevo, which muffles the
12 This evidence clearly establishes that the round was not fired by
13 the ABiH but by the SRK as it must have been fired from a further distance
14 away, beyond the confrontation lines and behind the mountain ridge.
15 Knustad said it was very possible that the mortar was fired from behind
16 the VRS line and that he would not have heard it because of the
17 configuration of the terrain and the way the sound would move behind the
18 hill, behind his position. Expert witness Higgs confirmed the
19 neutralising effect on the sound by the hills. The Defence experts while
20 agreeing that the sound would have been muffled maintain that the firing
21 of the shell would have been heard by the UNMOs if it had been fired from
22 VRS lines.
23 Mr. President, the problem with this evidence is that not only is
24 it contradicted by Higgs and by Konings and by Knustad, it is based upon
25 the firing position being at 2.400 metres from the explosion site and does
1 not take into account that the shell could have been fired from a further
2 distance. It is correct that Higgs puts the likely firing position at
3 2.400 metres. But as the Prosecution has submitted during the trial and
4 has indicated in our final trial brief at paragraph 312, the Prosecution's
5 burden of proof is to establish that the round was fired within SRK
6 territory and this is what has been established.
7 But actually, Mr. President, Your Honours, the Defence haven't
8 suggested this account at all. No. The Defence has maintained a
9 radically different version of events and this is why at the beginning of
10 my argument I stress the fact of a shelling incident, because quite to the
11 contrary, the Defence assert that the destruction caused at the
12 marketplace was the result of a static explosion, a terrorist attack
13 caused in situ.
14 Mr. President, Your Honours, in paragraphs 326 to 338 in its
15 closing brief the Prosecution rebuts in detail the Defence theory of the
16 explosion being the result of a static explosion and in the Prosecution's
17 submission it is clear when one examines the evidence such a theory cannot
18 be supported.
19 The Defence argument on this issue is contained on page 66 of the
20 English version of their brief. Firstly the Defence ask the Trial Chamber
21 to rely on the expert report of Dr. Vukasinovic and that report is D175.
22 This report concludes that the Markale shelling was the result of a static
23 explosion. The Prosecution submits, however, that this report should not
24 be afforded any weight by the Trial Chamber. Its author was not called by
25 the Defence and his analysis and conclusions were not tested in
1 cross-examination or by questions from the Bench and as such is
3 Initially, Dr. Vukasinovic relies on several assumptions. One
4 example of this is his finding related to the angle of descent of the
5 shell, noted on page 3 of the English version of his report. To determine
6 the height of the south-facing building, a crucial measurement for the
7 calculation of the angle of descent, Vukasinovic's determination of the
8 height was based on an assumption of the average height of a person
9 depicted in figure 4 and that assumption was that the man would have been
10 1.75 metres high.
11 Now, Mr. President, this could be but it could also not be. If
12 such an assumption is wrong then it throws the entire subsequent
13 conclusions awry.
14 The Defence in their brief state that Prosecution expert Zecevic
15 agreed with the mathematics used by Vukasinovic and recognised his
16 expertise in this field. Well, yes, this is correct in part. Zecevic
17 accepted that the theory used by Dr. Vukasinovic was sound but he had
18 serious concerns with the data the doctor used. This, the Defence did not
19 reveal in their brief. Zecevic did not endorse a finding of a static
20 explosion and I refer you, Mr. President and Your Honours, to transcripts
21 page 4936 and 4937. Zecevic said the following:
22 "In the study you mention there are several arguments that are
23 misconceived. If we calculate the height of the building and the distance
24 from the place of the incident we can determine that the angle of descent
25 was at least 70 degrees whereas in Mr. Vukasinovic's study it says 50 to
1 60. It changes the whole thing and I underscore yet again, I want to
2 stress that Mr. Vukasinovic is excellent in theory. However, in his study
3 he used data that did not reflect the accurate situation."
4 JUDGE ROBINSON: Mr. Sachdeva, earlier you referred us to page 66
5 of the Defence brief, and I'm wondering whether that is the correct page.
6 MR. SACHDEVA: It's the English version, Mr. President.
7 JUDGE ROBINSON: Well, it's the last page, headed "Discussion."
8 MR. SACHDEVA: Mr. President, I apologise. I think it's page 57.
9 JUDGE ROBINSON: Thanks.
10 MR. SACHDEVA: May I continue.
11 JUDGE ROBINSON: Yes, please. Mr. Tapuskovic.
12 MR. TAPUSKOVIC: [Interpretation] Your Honours. Good afternoon,
13 Your Honours. I'm sorry to interrupt my learned friend, but I was
14 expecting that we would receive the English translation if it's available.
15 In the current situation, we are not able to follow properly. We did
16 notice certain discrepancies, and I thought that if available we should
17 have the English translation.
18 JUDGE ROBINSON: Yes. I would think so.
19 MR. SACHDEVA: Mr. President, perhaps I can assist my friend.
20 JUDGE ROBINSON: Yes.
21 MR. SACHDEVA: It's also contained in pages -- paras 193 to 194 of
22 the French original version of their brief.
23 JUDGE ROBINSON: I'll ask the registrar to ensure that you receive
24 a copy, Mr. Tapuskovic, of the English version. Are you sure you don't
25 have it? We have had this experience before.
1 MR. TAPUSKOVIC: [Interpretation] You certainly didn't have that
2 experience with me, because I'm sure we didn't receive it, and we wanted
3 to have it today before the closing arguments began. Right now we are not
4 in a position to check the references my learned friend is making.
5 JUDGE ROBINSON: The paragraph numbers would be the same as in the
6 French, but you are entitled, of course, to have the English version, and
7 we'll see to that, Mr. Tapuskovic.
8 Please continue, Mr. Sachdeva.
9 MR. SACHDEVA: Thank you, Mr. President.
10 I had just - before this deviation - I had just finished quoting
11 Dr. Zecevic, and I want to say that of course Dr. Vukasinovic made
12 assumptions because he was not there, but the Bosnian and the UN
13 investigators were there on the scene just after the explosion, and they
14 arrived at specific calculations of the angle of descent, independent
15 calculations and measurements which, Mr. President and Your Honours, in
16 the Prosecution's submission are far more reliable.
17 JUDGE ROBINSON: Mr. Sachdeva, I'm going to stop now to take the
19 I understand, Mr. Tapuskovic, that you wish to make a submission,
20 and I should say if a party wishes to make a submission it may do so. You
21 don't need to have my permission. You just rise and make the submission.
22 MR. TAPUSKOVIC: [Interpretation] Well, the only thing,
23 Your Honours, that I wish to say, and I had indicated so before the
24 beginning of this hearing, is that I could certainly start my own closing
25 argument right away. Nevertheless, I wanted to say, and I am prompted by
1 the problem with this translation additionally, and I am going to respect
2 whatever the Chamber decides, but still I would like, after the closing
3 argument of the Prosecution is finished, to have this document in order to
4 prepare for tomorrow, in order to be as concise and as clear as possible
5 in my response to the Prosecution, because I'm hardly in a position to
6 respond to every argument made today. I see no reason for haste, and I
7 still have time during the night and tomorrow morning to prepare properly.
8 To that end, I wanted to say that I would appreciate it if you could
9 enable me to do so.
10 JUDGE ROBINSON: We'll consider the submission. Of course the
11 time available to you would still remain the same, two hours.
12 Mr. Sachdeva.
13 MR. SACHDEVA: Mr. President, I just would like to inform counsel
14 that when I had referred to page 66, in fact it was of the French original
15 version of the brief.
16 JUDGE ROBINSON: Not the English.
17 MR. SACHDEVA: Not the English version.
18 JUDGE ROBINSON: Thanks. Now, the Chamber will have to carry out
19 some consultations in the break, and we will therefore break for a half an
21 --- Recess taken at 3.45 p.m.
22 --- On resuming at 4.25 p.m.
23 JUDGE ROBINSON: Yes, Mr. Sachdeva.
24 MR. SACHDEVA: Thank you, Mr. President.
25 Before the break I had -- I was talking about Dr. Vukasinovic's
1 report and as an aside, Mr. President, Your Honours, it is noted that the
2 methodology used by Dr. Vukasinovic is the same as that used by the
3 Bosnian investigators in arriving at specific calculations such as the
4 angle of descent, and I make this point because the Defence, as my
5 colleague Mr. Docherty has already told you, have in their brief
6 questioned the competence and the qualifications of some of the Bosnian
8 Now, the Defence have also said that their expert Garovic who was
9 an experienced artillery officer also conclude that had it was a static
10 explosion at the marketplace. Well, let's examine what this experienced
11 artillery officer concluded. When confronted, he agreed that for there to
12 have been a static explosion there would have been secondary marks on the
13 ground from either the contraption that would have been used to hold the
14 projectile in place or from the explosive device. He said he did not see
15 evidence of secondary marks on the ground. Not unsurprisingly, expert
16 witness Higgs corroborates this and he says at T5032:
17 "Yes. If they had used a 120-millimetre bomb statistically, then
18 it needed to be detonated in some way, either by placing a secondary
19 charge on the side which would have affected the pattern tremendously."
20 Now, as a response, Garovic appeared to suggest that there may
21 have ban cover-up when the scene was cleaned but again when confronted he
22 agreed that crater marks on the road would not have been altered by the
23 cleaning of the crime site and, Mr. President, Your Honours, this fact is
24 also corroborated by Witness 137, the Bosnian police investigator who was
25 also at the scene after the explosion.
1 The two experts Higgs and Garovic also agreed on another factor,
2 that any static explosion would have had to have been detonated so as to
3 coincide with the specific crater patterns found at the scene on the road.
4 Higgs at 5031 said that with regard to the shrapnel patterns on the
5 ground, if a round was put there statically, it would have to have been
6 held in position by a frame to hold it at roughly 70 degrees to coincide
7 with the crater marks. Defence expert Garovic agreed that the crater
8 marks were not accidental but, rather, a result of a particular trajectory
9 and angle of descent and therefore to produce a static explosion one would
10 have to emulate these factors.
11 UNMO witness Konings who testified that he had passed the
12 marketplace some one or two hours before the explosion and said that he
13 did not notice a crater, that to create a crater between the time he
14 passed there and the time of the explosion would be, in his words,
16 The Defence also cite to Witness Demurenko's conclusion that it
17 was a static explosion, specifically a terrorist attack. Mr. President
18 and Your Honours, I don't want to repeat the Prosecution's detailed
19 rebuttal of Demurenko's testimony, and I refer Your Honours to paragraphs
20 327 and 329 of the brief, but suffice it to say for this -- this argument,
21 there are serious problems with his testimony and conclusions.
22 Firstly, the data he used when coming to his conclusion that it
23 was a static explosion was, in the Prosecution's submission, incorrect,
24 and I refer Your Honours to his -- his figures of 120 people being killed.
25 Secondly, he says that it was not possible to fire a single round
1 at the same spot in two years, but this, Mr. President, disregards the
2 evidence of Higgs and W-137 that it is possible to hit a target on the
3 first shot when sites have been pre-recorded.
4 And lastly, Demurenko himself admitted that he was not an
5 anti-terrorist specialist, rather a peacekeeping specialist.
6 Mr. President, Your Honours, when it boils down to it, you are
7 being asked to believe that the Bosnian authorities conceived of a plan to
8 create a contraption and explosive device that would be in range --
9 arranged in such a way so as to produce crater marks to reflect a
10 120-millimetre explosion and an angle of descent at roughly 70 degrees,
11 that such a device would be wheeled in and set up amongst the throng of
12 very people that the Bosnian authorities were defending while they were
13 busy shopping and trading goods on a downtown street, without anyone
14 noticing, and then detonating it. You are being asked to believe that the
15 Bosnian authorities would sacrifice hundreds of their own people and that
16 it could be done with such exposure without it coming to light in the past
17 12 years.
18 This conspiratorial version, Mr. President and Your Honours, is
19 completely unbelievable over the most obvious, logical and scientific one,
20 and that is a 120-millimetre mortar was fired by the Sarajevo-Romanija
21 Corps from Mount Trebevic exploding at the busy marketplace.
22 The Prosecution submits that the evidence is beyond clear. This
23 account is what happened on that fateful morning of the 28th of August,
24 1995, and the static explosion theory is basically what Defence expert
25 Garovic said at 9216 a guess, and a guess, Mr. President, cannot lead to
1 reasonable doubt.
2 Finally on this incident, the Prosecution submits that the purpose
3 of firing a single round into the marketplace could only be to terrorise
4 the civilian population. As expert witness Higgs said at 5030, and I
6 "Firing a single round into, as in the case here, a centre of a
7 built-up area or a close to an area where civilians are known to be
8 present would probably -- probably be more along the lines of to terrorise
9 the population and to actually kill civilian casualties rather than any
10 military objective."
11 I now turn to the subject of modified air bombs, and again, I
12 refer Your Honours to paragraphs 21 to 44 of the Prosecution closing
14 The Prosecution submits that it has proven beyond a reasonable
15 doubt that the accused personally ordered the deployment of modified air
16 bombs on Sarajevo throughout the amended indictment period in order to
17 terrorise the civilian population. There is an abundance of credible
18 evidence that the SRK developed, possessed, and used these notoriously
19 inaccurate weapons, that in General Fraser's words had no legitimate
20 military value during the conflict. And this evidence ranges from orders
21 from the accused, them being P225 and P226, to witness testimony from UN
22 witnesses and Bosnian police investigators.
23 There is, on the other hand, no credible evidence that the ABiH
24 possessed, let alone used, modified air bombs in the city against its own
25 people. And for this reason the Prosecution submits that for all of its
1 scheduled incidents involving modified air bombs the origin of fire was
2 without doubt within SRK-controlled territory.
3 Now of course during the trial there was evidence in respect of
4 the TV tower incident and that is scheduled shelling incident 15 which
5 occurred on the 28th of June, 1995. And the evidence, some of the
6 evidence you have heard was that the ABiH fired this modified air bomb,
7 but, Mr. President and Your Honours, the Prosecution submits that this
8 evidence is not credible over and above the contemporaneous documentary
9 and witness evidence proving that the SRK fired the modified air bomb at
10 the TV tower --
11 THE INTERPRETER: Please slow down a little.
12 MR. SACHDEVA: -- including a document in which --
13 JUDGE ROBINSON: Please slow down.
14 MR. SACHDEVA: Yes, Mr. President.
15 Including a document which the accused himself congratulates his
16 troops on hitting the TV tower. And I now turn to this incident in some
17 more detail.
18 Mr. President, the Defence theory is that the modified air bomb
19 was fired by the ABiH some 400 metres to the north of the TV tower in a
20 built-up area near Mali Hum with no one noticing it except two UNMOs,
21 Hansen and Knowles. You may recall during the testimony of expert Zecevic
22 a video clip was shown demonstrating what a launch of an air bomb sounded
23 like. Of course it is recalled that this launch was not of an air bomb in
24 Sarajevo. However, it is instructive as to the sound such a launch would
25 make. And the reason why I mention this is because it demonstrates, in
1 the Prosecution's submission, the sheer improbability of such a weapon
2 being fired from within the confrontation lines which the ABiH without it
3 being noticed by anyone. Is it really possible that this is what
4 happened, and if Hansen and Knowles are to be believed, only two UNMOs
5 heard and noticed it and no one else did?
6 The Prosecution submits that this is not at all possible. And not
7 because of conjecture but because the positive direct evidence speaks to
8 the absolute contrary. In cases before the Tribunal, if there exists
9 contemporaneous recorded admission from an accused that a particular crime
10 was committed then clearly this is the best evidence and this is what we
11 have in this case. Your Honours, Prosecution Exhibit P42 is the infamous
12 letter to all SRK troops from the accused on the state of affairs at the
13 front, and in it the accused says the following:
14 "Our artillery forces are responding with precision to the Muslim
15 artillery attacks. In one such response on the 28th of June they hit had
16 the BC/RTC/BH radio and television centre, the centre of media lies
17 against the just struggle of the Serbian people."
18 What better proof can there be regarding the origin of fire for
19 this incident?
20 Now, the Trial Chamber witness Knowles at T9395 did agree that it
21 is theoretically possible that a commander may boast about things they
22 never did to boost morale, but this was not the case here. In Prosecution
23 Exhibit 629, a UN report of a meeting on the 9th of July, 1995, between an
24 UNPROFOR officer and a Captain Novak Prodanovic from the Ilidza Brigade,
25 the SRK captain is reported as having said that the SRK was firing Krema
1 rockets at Sarajevo, including two at the TV building and I quote, "one of
2 them hit it."
3 Can an admission to UNPROFOR be a tactic to boost SRK morale? The
4 Prosecution submits not, certainly not in addition to the accused's own
5 admission as described above. However, if the Trial Chamber is minded to
6 examine the testimony of Hansen and Knowles, then the Prosecution submits
7 that their accounts are inconsistent and cannot raise reasonable doubt
8 over the accused's responsibility. And again, Mr. President, this is in
9 effect a summary of the Prosecution's written arguments found in paras 131
10 to 140 of its brief.
11 Hansen does not explain why he waited day before he reported that
12 the ABiH hit the TV tower when he had that alleged information on the day
13 of the incident itself. Both Hansen and Knowles did not see the launch of
14 the projectile and in fact Knowles had never seen the launch of a modified
15 air bomb before. UNMO witness Brennskag however did see the launch and
16 said it same from Ilidza under SRK control.
17 Hansen testified that he was informed that the ABiH fired the
18 projectile by another unnamed UNMO who he never identified. Yet Knowles
19 testified that he saw the flight of the projectile with Hansen in the PTT
20 parking lot. Who is correct here? Maybe this is why when Knowles was
21 confronted with evidence that the UN had concluded that the SRK had fired
22 at the TV tower through its protest letter to the accused and that --
23 THE INTERPRETER: Kindly slow down for the interpreters. Thank
25 MR. SACHDEVA: And that is P18 and the SRK admission on P42,
1 Knowles conceded that it was possible that what he had seen was a
2 secondary event by which he meant a second projectile. As Knowles said,
3 "No one, including myself would wish to dispute the facts presented."
4 Knowles agreed that it was a sudden, unexpected and very quick
5 event and on all the facts the most reasonable explanation is that Knowles
6 saw the same air bomb that Brennskag and W-156 did, the modified air bomb
7 fired by the SRK that hit the TV tower. And further, Mr. President, the
8 marks on the roof that W-138 testified about are consistent with the
9 projectile flying from the west and not from the north in the area of Mali
11 Lastly, the UNPROFOR commander General Smith testified that if the
12 ABiH had been shown to have fired the round that hit the TV tower, it
13 would have been brought to his attention. It was not brought to his
15 Mr. President, Your Honours, the Prosecution asks the
16 Trial Chamber to arrive at the only available result based upon the
17 evidence, and that is the Sarajevo-Romanija Corps launched this modified
18 air bomb on the TV tower on the 28th of June, 1995, at around 9.20 in the
19 morning, killing one person and wounding a further 28 civilians.
20 I conclude. By proving beyond a reasonable doubt that the
21 scheduled and unscheduled shelling incidents the Prosecution has
22 established that General Dragomir Milosevic's responsibility -- has
23 established his responsibility for the crime of terror, a violation of the
24 laws and customs of war as charged in count 1 of the amended indictment,;
25 the crime of murder, a crime against humanity as charged in count 5; the
1 crime of inhumane acts, a crime against humanity as charged in count 6;
2 and finally, the crime of unlawful attacks on civilians as charged in
3 count 7 of the amended indictment.
4 JUDGE ROBINSON: That leaves out what?
5 MR. SACHDEVA: It leaves out the counts related to sniping and
6 those are my submissions, Mr. President and Your Honours. Thank you.
7 JUDGE ROBINSON: Thank you.
8 Ms. Edgerton.
9 MS. EDGERTON: Thank you, Your Honours.
10 It seems fitting that I be the penultimate member of the
11 Prosecution team to address you, Your Honours, because now after hearing
12 the evidence of my colleagues I would suggest the terror count in this
13 case is a charge that really captures the criminality of the accused, the
14 criminality at issue, and it contextualises all the other evidence that
15 you've heard my colleagues speak of, you've heard testimony about, and
16 really brings home to all of us the sheer scale of the victimisation in
17 this crime.
18 The population of the city of Sarajevo, 250.000 people, were
19 affected, terrorised. This wasn't an ethnic terror. These Serbs, Croats,
20 and Muslims alike who lived in Bosnian government-held Sarajevo were
21 terrorised, as Mr. Waespi said, not from the fear of being caught in a
22 crossfire but because there was a battle nearby, what they suffered
23 through was something very different than the fear that comes with war.
24 They were the targets, Your Honours, of a politically motivated campaign
25 of shelling and sniping that was initiated and ensured by the
1 Sarajevo-Romanija Corps, maintained explicitly to terrorise its victims.
2 These were attacks in which the accused took part at all levels,
3 and they were effective. The civilians of Sarajevo did live in terror.
4 Your Honours, it's the Prosecution's submission that there's no
5 doubt that Dragomir Milosevic specifically intended and did send a clear
6 message to the civilian population of BiH-held Sarajevo. They could never
7 even hope for safety. The strength of the message was palpable because no
8 one knew whether they might be the SRK's next victim. And I'm going to,
9 in my submissions, highlight some of the evidence in that regard.
10 You've heard abundant evidence from this trial as to the largely
11 static nature of the front lines around Sarajevo throughout the siege and
12 Sarajevo residents from within those lines, from all corners of the city
13 from Bascarsija to Hrasnica from all walks of life, ages, ethnicities gave
14 evidence to this Chamber as to the enduring violent nature of the campaign
15 of shelling and sniping against them from SRK-held territory. They've
16 given consistent, convincing evidence which shows that from August 1994 to
17 November 1995 no civilian activity and no areas of BiH-held Sarajevo were
18 safe from shelling or sniper fire. And that's because, as my colleagues
19 have made plain, these attacks weren't aimed at neutralising any military
20 targets. Quite the opposite. This wasn't conventional military activity
21 at all as we've said. The intention was to ensure civilian casualties.
22 Also, the trial record in this case is filled with evidence that
23 throughout the period of this indictment shelling and sniping into
24 BiH-held urban areas of Sarajevo wasn't justified by any military
25 necessity. And there's not been any evidence that even one of the
1 scheduled or unscheduled incidents you have put before you has realised a
2 military advantage in favour of the SRK. Mothers walking with their
3 children were shot by SRK snipers. Schoolchildren were shot. People
4 riding trams in times of cease-fire were shot, and the evidence Your
5 Honours have is that in all of those cases every single one of those
6 victims were discernible as civilians.
7 People were shelled and killed queuing to get their allotment of
8 drinking water. They were killed shopping. They were skilled inside
9 their own homes like in scheduled shelling incident number 6. Densely
10 populated residential areas of Bosnian-held Sarajevo were shelled.
11 Dobrinja, Novo Sarajevo.
12 People who tried to rescue those who fell, even to investigate the
13 origin of fire, were themselves shot at from SRK territory, and the people
14 who lived within the lines, the people who remained in Sarajevo were
15 forced to somehow adapt to their hostile environment. They lived in
16 darkness like Witness W-35. They lived at night, like witness Sisic whose
17 husband went out at night to find water so snipers wouldn't see them.
18 They hid in basements and shelters. Going out to buy fresh fruit from a
19 kiosk was a dream, but deciding whether or not you would let your child
20 out to play was a reality. You never knew whether they would come back
21 alive. All this is supported by, in our submission, neutral and
22 experienced international observers, NATO generals, for example, who gave
23 corroborative evidence to this effect.
24 Further, all this evidence is corroborated by Mr. van der Weijden
25 who said as my colleague Mr. Docherty made clear in no scheduled sniping
1 incident to this indictment could the victim be identified as a combatant.
2 And that's at P514, page 66. And by mortar expert Richard Higgs whose
3 analysis for example, of SS 14 let him to the firm conclusion that this
4 round that killed 7 and injured 12 was fired deliberately and aimed at the
5 location -- at that location and fired at the particular time to cause
6 maximum casualties. And that's at P589, pages 17 and 18.
7 Your Honours have heard evidence of both the breadth and duration
8 of the campaign. Mr. Waespi has already noted that by the time
9 General Milosevic took office, it had been in place for more than two
10 years. While the pattern and frequency of attacks fluctuated and we
11 concede that, as Mr. Martin Bell told Your Honours that would largely be
12 according to the seasons. They were relentless to the point where
13 specific areas of Sarajevo became notorious as sources of sniper fire from
14 SRK territory and where artillery and sniper positions could be identified
15 as permanent, and in that regard I would point Your Honours to the
16 evidence of General Karavelic.
17 Your Honours, what I've just said only underscores evidence that
18 in our submission leaves no doubt that a widespread, systematic campaign
19 of shelling and sniping civilians in BiH-held parts of Sarajevo resulting
20 in their death and injury was in place throughout the indictment period,
21 and the nature, the manner, the timing, and the duration of these attacks
22 of shelling and sniping are among the factors from which you can infer the
23 general's specific intent to spread terror. And I'll move to discuss
24 specific intent further later on in this presentation.
25 But what I want to talk about now is whether the primary purpose
1 of the campaign of sniping and shelling of civilians in BiH-held territory
2 was to cause terror. To deal broadly with some defence positions that
3 might go to the issue of primary purpose first, I'd just like to note that
4 Defence has claimed we've all heard through this trial and in their brief
5 that variously Bosnian Serb forces were not the aggressor, SRK forces
6 wanted peace, that they were merely trying to defend their homes and what
7 they perceived to be theirs or Bosnian Serb land. With respect to this
8 point I would like to note that the territory in question around Sarajevo
9 had been occupied and ethnically cleansed in 1992 to remain in 1994 under
10 control of the SRK, and in that regard I would refer Your Honours to the
11 testimony or to the report, rather, of Dr. Donia and the evidence of
12 Mr. Harland.
13 As to the desire for peace, Prosecution witness David Harland
14 already explained that this desire for a cease-fire on the part of the
15 Bosnian forces -- Bosnian Serb forces, was legitimate and importantly a
16 reflection of the fact that by the indictment period having been
17 militarily active in 1992 and 1993, they had already taken a little more
18 than 70 per cent of the total territory of the Republic of Bosnia and
19 Herzegovina, even more land than they ultimately sought to keep under a
20 republic-wide peace agreement. Of course a cease-fire would have been of
21 interest to the Bosnian Serbs to preserve the status quo and consolidate
22 their dominant position throughout the country. But let's go back to
23 Sarajevo. Even so, the evidence is that sniping and shelling into
24 BiH-held Sarajevo continued through the indictment period and increased in
25 its intensity as time went on.
1 Defence has also repeatedly, and particularly for the year 1995,
2 offered that SRK operations around Sarajevo were defensive and nothing
3 more. A number of Defence witnesses almost exclusively SRK front-line
4 trench soldiers gave evidence that their orders were not to fire at
5 civilians. On this last point, Your Honours, whether the accused may have
6 given such orders, the evidence is overwhelming, I would submit, even from
7 Defence witnesses, for example, T39 who mentioned it and T22, that sniping
8 and shelling of Bosnian-held Sarajevo from forces under the accused's
9 control happened throughout the indictment period. It never stopped. And
10 these assertions from Defence witnesses, as I've said, come from trench --
11 trench soldiers who confirm they have no personal knowledge of the
12 situation within the Bosnian-held urban area of Sarajevo. In fact, one,
13 Mr. Djukic, commented that he gave no credence to a siege of Sarajevo
14 having been in place.
15 Your Honours, on the other hand, we have coherent credible
16 evidence from objective, third party observers of the situation within
17 those BiH-held areas inside the city as well as the victims themselves
18 who, time and again, say that sniping and shelling they observed and
19 suffered had no discernible military objective. Its primary purpose,
20 Your Honours, was specifically expressly to cause terror to the civilians,
21 and the targets I've mentioned earlier speak for themselves, don't they?
22 Mothers with their children walking, schoolchildren.
23 JUDGE ROBINSON: Are you going to tell us what terror is?
24 MS. EDGERTON: Would you like to hear comment about the elements,
25 Your Honour?
1 JUDGE ROBINSON: Or do you think the term is self-explanatory? .
2 MS. EDGERTON: I think the term is self-explanatory but I prefer
3 to refer Your Honour, as I did when I spoke to you before during the
4 98 bis submissions, to the evidence of the people themselves. And in
5 fact, it might be telling and appropriate at this moment to turn to one
6 exhibit and the only exhibit I'm going to offer you, a clip from P612,
7 which will come up in Sanction on your screen. This is a video,
8 Your Honour, that Prosecution witness Martin Bell called one of the iconic
9 images of the war, saying, "I think it conveys probably more than any
10 single sniping incident the daily perils of the people in the city."
11 If you could play that video, please, again. It's very brief.
12 [Videotape played]
13 MS. EDGERTON: It speaks volumes, Your Honours. Those cowering
14 people would be sprinting across the intersection to avoid sniper fire if
15 it wasn't for that UNPROFOR APC. The people are like machines. There is
16 no innocence in that image. There's no conversation. The innocence has
17 been replaced by the unrelenting fear of being shot or shelled which was
18 realised through the SRK's campaign of terror. And that, Your Honour, was
19 defined by the Appeals Chamber in the Galic case as being acts or threats
20 of violence, the primary purpose of which is to spread terror among the
21 civilian population.
22 JUDGE ROBINSON: That is a circle, isn't it? I said that's a
24 JUDGE HARHOFF: It's a circular definition. Terror is spreading
1 MS. EDGERTON: The terror -- the terror, in our submission, in my
2 submission, is exactly what I've articulated to you immediately prior,
3 Your Honours. No one knew whether they might be the next victim. It
4 affected every waking moment of their lives. People for 15 months over
5 the period of this indictment knew absolutely no sense of safety anywhere
6 in the city. Terror is -- in this case, terror has been the intentional
7 deprivation of a sense of security. It's been the primal fear that people
8 feel when they see someone in front of them gunned down and that moment of
9 panic when they try and run to help the victim, waiting for the next shots
10 to come, and you've had ample evidence about that.
11 Our brief contains a lengthy discussion of what terror means and
12 the evidence of the witnesses in that regard -- excuse me, in that regard,
13 and I would refer back to paragraphs 401 to 446 for an extensive, more
14 extensive, discussion.
15 JUDGE ROBINSON: I must say that I like your definition,
16 Ms. Edgerton. Intentional deprivation of a sense of security and the
17 primal fear that people feel when they see someone in front of them gunned
18 down. That comes very close to it.
19 MS. EDGERTON: And I take that from the witness -- the witnesses
20 and the evidence that's come before this Trial Chamber. I recall
21 Martin Bell, who reported from Sarajevo at times throughout the conflict,
22 characterising the only truly safe places in the whole city as the cave
23 down by the Miljacka and the tunnels. How shocking that people in a
24 European city would be reduced to seeking shelter underground for some
25 measure of safety and security. And I quoted to Your Honours some months
1 ago something that struck me from Mr. van der Weijden's evidence, and that
2 was to deal with the feeling that you get under the eye of a sniper. He
3 said, "The thought of never being safe affects everybody." And apart from
4 being shot, the anxiety and it's obviously a pervasive anxiety, mainly
5 comes from not knowing where or exactly when the sniper's going to strike.
6 I think, Your Honours, Martin Bell's comments in respect of that
7 clip that you saw were very telling. The constant attacks and the fear of
8 those attacks demoralised civilians living in BiH-controlled territory.
9 It exhausted them. It deprived them of hope.
10 The victims actually tried to put words to it, and much weight
11 comes to us from how they tried to articulate the sense of fear.
12 Alma Cehajic Mulaosmanovic said that the suspense of whether you were
13 going to be shot or not prevailed throughout the war and you will remember
14 Ms. Cehajic Mulaosmanovic wasn't an elderly woman. She was a young woman
15 whose testimony reflected that she had been affected by this pervasive
16 fear and it hadn't left her by the time she came before Your Honours.
17 W-35 said, "We were being shot at while going to get bread and
18 water." She, too, was clearly bearing the marks of that pervasive fear.
19 She talked of her perceptions of timing or pattern of attack. She said,
20 and I quote from page 824 and 825:
21 "Whenever there was a cease-fire or truce in Sarajevo, people
22 would venture out to see sunshine, the earth. Children would go into
23 parks and we who had families in other parts of town, we wanted to see our
24 relatives, and that's when we suffered the most."
25 For her a time of cease-fire or truce was a time where she might
1 have felt some measure of safety to venture outside of her house, but
2 look, that's exactly when they were victimised in her view the most.
3 International witnesses apart from Mr. Bell echoed and elaborated
4 on this from their perceptions. Mr. Brennskag said that he viewed the
5 attacks on the civilians in Sarajevo as pure terror without military
6 justification. General Sir Rupert Smith also elaborated on this saying he
7 had no doubt the attacks on the civilians in Sarajevo, the campaign was
8 essentially to terrorise, wear down the resolve of the defender, hold the
9 presence of Serb pressure evidently in the minds of people on a daily
10 basis and that was T3311.
11 And Smith said the strategy worked particularly on the ordinary
12 run of life within the city. So the fear pervaded in his view every
13 aspect of the ordinary running of life.
14 Mr. Bell, at 5264 of the transcript, said --
15 JUDGE ROBINSON: I have just a minute, please. Judge Mindua has a
17 JUDGE MINDUA: [No interpretation].
18 [In English] No translation?
19 THE INTERPRETER: Yes, there is.
20 JUDGE MINDUA: [No interpretation]
21 THE INTERPRETER: We have interpretation now. It's all right.
22 JUDGE MINDUA: [Interpretation] I was saying -- will you please
23 excuse me, because it's just that I want to understand your definition of
24 terror, and that's why I interrupted you. Could you please tell me, is
25 terror a subjective feeling or an objective feeling? Is it the case that
1 terror is an element of every war that takes place within an urban
2 environment? What is your opinion? And I mean terror over civilians. Is
3 it an inseparable element of every war within a city, a town? Is it the
4 case that civilians are always in such circumstances terrorised?
5 MS. EDGERTON: Your indulgence for a moment.
6 I hope I -- I think I answer your question, Your Honour, and I
7 hope I can answer you satisfactorily.
8 Two things. In respect of the crime of terror, the actual
9 affliction of terror isn't a requisite element of the offence. I should
10 point that out. However, the Prosecution's position in this case is that
11 it did very much occur among the civilians of Sarajevo at the hands of the
12 SRK, and that has been established on the evidence beyond a reasonable
13 doubt. That's the first thing.
14 Second, as Mr. Waespi alluded to and I said at the beginning of my
15 presentation, this terror, what the people of Sarajevo suffered through,
16 is something very different from the fear that would normally accompany a
17 war which could, Your Honour, be, for example, a fear that one might be
18 struck by a stray bullet in a battle that was raging close by.
19 Your Honour, when the drafters -- when the drafters of these
20 provisions, I would submit, were crafting the wording for this offence,
21 they meant to capture something very different and something that you very
22 much find in Sarajevo, and that's why, Your Honours, they put the
23 requirement of specific intent in that offence. They meant to capture the
24 deliberate infliction of fear far and away apart from, completely not
25 linked from any military objective or any military advantage to either of
1 the opposing forces. And it's not just, as I said, the fear that comes
2 from being nearby the combat. This is a fear calculated to demoralise, to
3 disrupt, to take away any sense of security from a body of people who have
4 nothing, Your Honours, to do with the combat.
5 Has that answered to some measure your inquiry?
6 JUDGE MINDUA: [Interpretation] Yes. Thank you very much.
7 MS. EDGERTON: Just one further item of evidence with respect to
8 the purpose, the object of this campaign, its primary purpose being one of
9 the infliction of terror among the civilians of Sarajevo. Something which
10 struck me was the evidence, again, of Mr. Harland who recounted the words
11 of Bosnian Serb leader Radovan Karadzic talking about the Dobrinja-Butmir
12 tunnel, in fact, which we've heard a great deal of evidence about, but
13 Karadzic, Mr. Harland said, told him in respect to the tunnel, "You know,
14 we could destroy it, but we're going to let the Muslims breathe."
15 This for Mr. Harland was clearly strong evidence that confirmed to
16 he and UN civil affairs the intention of Serb forces to terrorise the
17 population of Sarajevo. Karadzic said, "We could destroy it." Harland
18 confirmed that in his assessment they could have cut off all the food and
19 water and actually forced the surrender of Sarajevo, but they chose not
20 to. And that's at page at 375 of the transcript.
21 And our submission, Your Honours, would be, in light of all you've
22 heard absent any significant SRK offensive against the urban BiH-held area
23 of Sarajevo during the indictment period, this is further evidence to
24 support the conclusion that the intention of the campaign against Sarajevo
25 was to terrorise its civilians. The shelling and sniping were meant to
1 cause terror and they did so.
2 My friends would have you believe, Your Honours, that the
3 conditions and the character and the intensity of the campaign under
4 Dragomir Milosevic's command eased somewhat from that of his predecessor
5 General Galic, and in fact they make that assertion in their brief. But
6 as Mr. Waespi pointed out under the tenure of the accused's command it
7 became worse. And you've received evidence that the situation in Sarajevo
8 came to resemble the earliest days of the war. Under the SRK and under
9 Dragomir Milosevic things grew desperate. By 1995, the whole population
10 of the city was exhausted and psychologically devastated. That comes from
11 Mr. Overgard at T617.
12 And if I may, Your Honours, I just need to ask that we go into
13 closed session on two further occasions during my presentation to refer to
14 the testimony of a protected witness.
15 JUDGE ROBINSON: Closed session.
16 THE REGISTRAR: Private session.
17 JUDGE ROBINSON: Private session, rather. Private session.
18 [Private session]
3 [Open session]
4 THE REGISTRAR: Your Honours, we're back in open session.
5 MS. EDGERTON: Your Honours, it was in this context when people,
6 civilians of Sarajevo were at their weakest in terms of the fear, the
7 anxiety, the tensions that BiH-held Sarajevo was almost brought to, as we
8 say in our brief, its knees. As my colleagues have said it was under the
9 command of this accused that the SRK began to use weapons against the
10 civilians of Sarajevo that hadn't been used before. Why are guided
11 missiles, for example, which Mr. Harland understood should they be used in
12 a real war to be used against tanks, were fired on apartment blocks?
13 That's at transcript 452 to 453.
14 P620 is a film of one of those missiles hitting the Presidency.
15 It was in this context under the control and direction of Dragomir
16 Milosevic that the rocket-propelled air bombs were added to the arsenal of
17 instruments of terror and used against the city of Sarajevo. These were
18 the weapons what Martin Bell colloquially described by their very nature
19 as a weapon of mass destruction. "We might even call it a weapon of shock
20 and awe," he said. "It's so destructive that it is more than most
21 incapable of distinguishing between targets." And that's at 5262 of the
22 transcript. And other witnesses also commented on the psychological
23 impact for the people of Sarajevo to hear that these weapons existed.
24 Fraser, Brigadier General Fraser said, "They sent shudders through
25 everyone, including the UN." They -- and that, Your Honours is at pages
1 1825 to 1827 of the transcript.
2 I was struck actually by the testimony of Dr. Zecevic, who also
3 talked about the psychological, the intimidation impact of these weapons.
4 At 4904 he said:
5 "Can you imagine a person sitting in their apartment when a
6 projectile hits and just blows off the top three floors of a building or a
7 skyscraper? It's intimidating. Can you imagine that situation when the
8 skyscraper was hit? From the psychological points of view it was indeed a
9 formidable effect."
10 In all of this, under the control at the time of the -- sorry, at
11 the time, the SRK was under the control and direction of
12 Dragomir Milosevic land routes into the city, into Sarajevo, were closed
13 by Bosnian Serb forces. That was in March, as you've heard. In April the
14 airport was also closed by Bosnian Serb forces, and with this the
15 humanitarian airlift into the city which had been operational since 1992
16 ended for the rest of the war. Gas, water, and electricity were cut off.
17 The bakery ran out of flour.
18 In our submissions, Your Honours, this evidence that goes to show
19 the level to which conditions in BiH-held Sarajevo deteriorated under the
20 accused's command is some evidence that's very relevant to your
21 considerations of whether he held the specific intent to spread terror
22 among the civilian population. The Prosecution's submission is we've
23 established that.
24 Additional to everything I've said, the Prosecution has brought
25 articulate evidence that during the period of this indictment in
1 particular the terror campaign against the civilians of BiH-held Sarajevo
2 was politically motivated. The pattern of terror through the attacks and
3 humanitarian difficulty imposed on the civilians of Sarajevo was carefully
4 modulated to serve as a form of pressure by Bosnian Serb forces to, among
5 other things, extract concessions from the Bosnians at the negotiating
6 table, and in that regard I would point to the evidence of Mr. Harland and
7 Mr. Mohatarem by way of example; to stop attacks elsewhere in the
8 battlefield in Bosnia and Herzegovina, even to deter a NATO military
9 attack. In fact, Harland told the Tribunal that Serb leaders were
10 explicit when they told him they would use their military apparatus to
11 terrorise the population to get the political outcome they wanted. The
12 Prosecution exhibit 1, page 27004, Harland said, "This was a common theme
13 and they didn't even try to hide it from me." Pardon me, I cite to the
14 wrong page. That's P1, 26953.
15 The people of Sarajevo as we say in our brief, Your Honours, were
16 bargaining chips, subject to the pressure of this campaign of terror to
17 secure crudely some kind of concessions that would put the Bosnian Serb
18 forces to advantage, and the Prosecution submits this also supports
19 evidence or goes to the conclusion of the primary purpose of the campaign
20 being to apply terror.
21 If I could go -- ask -- if I could ask very briefly, Your Honours,
22 for the last time to go into private session.
23 JUDGE ROBINSON: Private session.
24 [Private session]
10 [Open session]
11 THE REGISTRAR: Your Honours, we're back in open session.
12 MS. EDGERTON: The accused indeed implemented those orders,
13 Your Honours, in the way he saw fit. And by the way, I should note that
14 W-46 is corroborated by Brigadier General Fraser at 1818 when he said,
15 "Within that little box called Sarajevo, General Milosevic was the guy in
17 One of the ways as mentioned by my colleagues Dragomir Milosevic
18 implemented those orders, exercised his command, was that he personally
19 saw -- oversaw the deployment of air bombs against BiH-held Sarajevo, and
20 the evidence in support of this that you've heard I think three of my
21 colleagues refer to has actually come into these proceedings uncontested.
22 So in our submission, Your Honour, this is incontrovertible evidence of
23 his specific intent to cause terror among the civilian population of the
24 BiH-held Sarajevo.
25 The accused in our submission can't reasonably claim to be unaware
1 of the potential for human casualties as a result of the use of the air
2 bombs. Colonel Veljovic, their first Defence witness stated six SRK
3 soldiers were killed testing the weapon, and that's at page 5801. Yet, on
4 April 6, 1995, the accused issued the order my colleagues referred to as
5 P226 directing an air bomb be launched at specific targets in Sarajevo
6 where the greatest casualties and material damage would be inflicted, and
7 the order was carried out. Scheduled shelling 6.
8 Referring to a further incident mentioned by Mr. Sachdeva, the
9 shelling of the radio and TV building, I would direct Your Honours to P42,
10 which Mr. Sachdeva has dealt with in detail.
11 There's no evidence before this Trial Chamber, Your Honours, to
12 suggest that this letter, P42, represents anything other than a specific
13 acknowledgement of SRK responsibility on the parts of Dragomir Milosevic
14 for scheduled shelling 15, the air bomb attack on the TV building.
15 Authenticity of that document has never been put at issue. Further, and
16 again related to this incident, the SRK Ilidza Brigade liaison officer in
17 P629, whose words are recorded in P629, described to a FreBat liaison
18 officer the air bomb attack on the TV building, calling it psychological
19 warfare aimed at upsetting the Bosnian soldiers engaged on the Treskavica
20 front who would be worried about the safety of their families. And the
21 Serb captain said because one of the rockets hit the TV building the
22 journalists might have reported the incident and the BiH soldiers were
23 informed about the existence of these weapons, and I quote, called terror.
24 JUDGE ROBINSON: It has been suggested that the letter might have
25 reflected nothing more than the kind of boast that one gets in military
2 MS. EDGERTON: In that regard, Your Honours, I would direct you to
3 the testimony of - and I should choose my words carefully - W-156, who
4 gave specific comments about this document and the authenticity of the
5 document and the intention as he understood it from his own military
6 experience of the speaker when he articulated those words.
7 Further than that, Your Honours, would take the view that
8 Mr. Sachdeva has adequately dealt with that question. I would actually
9 suggest, Your Honour that, these documents emanating from the accused and
10 recording statements of his staff are conclusive expression of the
11 accused's specific intent to spread terror among the civilians of BiH-held
12 Sarajevo, and any doubt Your Honours might have with regard to P629 is
13 actually when looking in our trial brief, in our final brief, at the
14 section on air bombs and the number, the quantity of orders issued by the
15 accused and the quantity of air bombs dealt with in those orders that in
16 fact that doubt that you might have about P629 is unnecessary, and you
17 would find the document to be completely reliable.
18 Your Honours, our submission would be that the accused knew about
19 this campaign of terror against the civilians. He commanded it. He went,
20 in P42, as far as to condone it. He was fully aware that the actions of
21 his troops caused terror. And in that regard I would refer Your Honours
22 to the notice and knowledge section of our closing brief. And in
23 Dragomir Milosevic's command, he ensured the campaign continued.
24 We talked about the definition of terror, Your Honours, and I
25 opened with -- by pointing out that what happened to the civilians of
1 Sarajevo was more than and distinct from the terror that comes with war.
2 I would say, Your Honour, that that terror that they felt was the terror
3 that came from knowing and believing, based on years-long, relentless,
4 deliberate nature of the siege that they and their families and their
5 children might be the next victims.
6 And to close, Your Honours, just to remind you that no matter what
7 argument of chaos or expressions of hopes and wishes for peace you might
8 hear from my friends, to remind you of the testimony of Martin Bell who --
9 who also said that no matter what, it was the civilians inside the siege
10 lines who bore the burden of the campaign of terror. And as for the SRK
11 under the accused's command, I'd actually turn to Mr. Harland who
12 said, "The application of instruments of terror against the civilian
13 population, that was what the SRK basically did." And that's at page 325.
14 Your Honour, it's our submission that terror was
15 Dragomir Milosevic's primary purpose in laying the campaign of shelling
16 and sniping against the civilians of Sarajevo. You have overwhelming
17 evidence that this was actually his design. And I would close on that.
18 JUDGE ROBINSON: Thank you.
19 Mr. Waespi.
20 MR. WAESPI: Thank you, Mr. President. Actually I do have to ask
21 leave, because I think we probably have exhausted already two hours
22 allocated to us, but I still have a not-too-long section on the individual
23 criminal responsibility of the accused and sentencing, and I hope to be
24 done within 20 minutes.
25 JUDGE ROBINSON: Yes. Please go ahead.
1 MR. WAESPI: Thank you, Mr. President.
2 JUDGE ROBINSON: Mr. Tapuskovic, you may rest. You may begin
4 MR. TAPUSKOVIC: [Interpretation] Yes, but then I will ask for as
5 much time, more, as the Prosecutor has taken.
6 JUDGE ROBINSON: Yes. We always ensure equality.
7 Yes, Mr. Waespi.
8 MR. WAESPI: Thank you, Mr. President.
9 Of course the accused, General Milosevic, a professional JNA
10 officer, was no stranger to the events that you heard about from my
11 colleagues that unfolded in Sarajevo before he became the SRK commander in
12 August 1994.
13 The accused was involved in the siege from the outset, was in
14 Sarajevo throughout the war in various important positions, most notably
15 as General Galic's deputy and Chief of Staff. For the key role of a chief
16 of staff, Your Honours, I would like to refer you to the testimony of
17 Colonel Demurenko, page 7724, and Veljovic, pages 5831. I would also like
18 to refer you to Prosecution Exhibit 738 in which the accused describes his
19 role in Grbavica in 1992.
20 The accused knew Sarajevo. He knew the front lines. He knew his
21 troops. He knew the enemy. He knew the fate of the civilians inside the
22 city. With this knowledge, Dragomir Milosevic became co-commander,
23 inherited the campaign from his predecessor, did nothing to stop it or
24 punish its perpetrators. In fact, he continued it for some 14 months.
25 General Milosevic could and should have distanced himself from the
1 previous commander. He could have said enough is enough. He could have
2 made a difference. He did the opposite, Your Honours. He continued
3 exactly along the same lines, introduced even a new dimension of terror.
4 As you heard from my colleagues, the modified air bombs.
5 The continuation of the campaign against the civilians of Sarajevo
6 was undoubtedly expected from the accused by his superiors in Pale when
7 they replaced General Galic. However, that does not remove anything from
8 this accused's criminal responsibility.
9 In this regard, Your Honours, let me add a comment about the
10 relationship between the accused and his superior General Mladic. Of
11 course the fact that the accused may have acted upon the orders of his
12 superiors in Pale is, under Article 7(4) of our Statute, not a defence,
13 although in theory it might give rise to mitigation. I will address
14 sentencing in a moment but let me say this: A general in any army is a
15 huge thing. It's the top of the tree. Generals have huge authority and
16 commensurate responsibility. I cannot stress that more. There were only
17 a handful of corps within the Bosnian Serb army and they were commanded by
18 selected generals. The accused was one of them.
19 Second, Your Honours, nobody is forced to become a general. There
20 are enough candidates who want the general's rank. Also, Your Honours,
21 look at the commanding, to use that word, personalities of the generals
22 you have -- who have testified before you as witnesses.
23 Third, we heard from a very senior UN official, and for that,
24 Mr. President, we need briefly to go into private session.
25 JUDGE ROBINSON: Private session.
1 [Private session]
11 [Open session]
12 THE REGISTRAR: Your Honours, we're back in open session.
13 MR. WAESPI: The fourth point about the relationship between
14 General Milosevic and General Mladic is this: There is an incident in
15 mid-1996 when the accused opposed General Mladic. Prosecution Exhibit 738
16 is a letter from the accused to General Mladic, and it carries the title
17 "Inability to carry out orders, explanation." The accused confirms this
18 letter that he has received on 16 May 1996 certain tasks from
19 General Mladic and continues: "Having analysed them, I have concluded
20 that I'm unable to carry them out." This shows that the accused could and
21 did oppose his superior if he wanted.
22 Fifth point, the accused certainly could and should not have
23 ordered the use of air bombs. He could have done that based on Defence
24 witness Veljovic, the first Defence witness's argument that the air bombs
25 were a dangerous weapon and endangered the SRK troops, not the civilians,
1 the SRK troops, an argument, I suggest that Mladic [Realtime transcript
2 read in error "Mazowiecki"] should have been open to.
3 Number six, the accused also could and should have investigated
4 and punished just one SRK soldier for an attack on civilians.
5 Seventh point --
6 JUDGE HARHOFF: Mr. Waespi, there is some uncertainty about what
7 is reflected in the transcript. You refer to Mr. Mazowiecki.
8 MR. WAESPI: Yes, that's an suggestion that General Mladic should
9 have been open to, meaning the argument that air bombs should not be used
10 because they would put SRK soldiers into a danger. General Mladic.
11 JUDGE HARHOFF: We thought so. Thanks.
12 MR. WAESPI: Thank you for your observation.
13 Seventh point. The accused could have resigned. I'm sure Mladic
14 would have found a new commander in no time.
15 Eighth point. There is absolutely nothing on the record,
16 Mr. President, Your Honours, nor argued by the Defence, nor put to
17 relevant Prosecution witnesses during cross-examination that there was any
18 disagreement between Mladic and Milosevic as to how the campaign in
19 Sarajevo should be fought or that the accused disagreed with the orders he
20 received from the Main Staff.
21 And the eighth point, an order to target civilians is patently
22 illegal, see also P18 to which I will turn in a moment, and the accused
23 have no duty whatsoever to obey such an order. In fact, he had, based on
24 his own training in the military schools, and of course, based on the
25 Geneva Conventions, no duty to implement that order. If the accused
1 obeyed such an order, it is because he wanted it, as is demonstrated by
2 his own orders targeting civilian areas, for instance, P226.
3 Your Honours, it's the Prosecution's submission that
4 General Milosevic had in theory and in practice all possibilities to make
5 a difference to stop the senseless killing of civilians in Sarajevo.
6 Your Honours, let me remind you of one of the key documents of the
7 Prosecution's case, P18. I'm sure you remember it. Several witnesses
8 testified about that. It's a personal letter. If it perhaps could be
9 brought to the screen by e-court. P18. It's a personal letter of the
10 acting UNPROFOR Sector Sarajevo Commander Robert Meille to the accused on
11 the 30th June 1995. The letter addresses all the main issues related to
12 individual criminal responsibility in this case.
13 That's not the letter I was referring to. It's P, Prosecution
14 Exhibit 18.
15 The first issue, Your Honours and I'm sure you will remember this
16 document. It's one page in English and B/C/S in original. It's notice to
17 the accused of attacks on civilians.
18 The second issue is the letter demonstrates the fact that repeated
19 attacks on civilians in Sarajevo occurred. The third, it mentions the use
20 and destructive potential of modified air bombs. Fourth, it reminds the
21 accused of his obligations under Geneva Conventions. Fifth, it addresses
22 the fact that the gunners were under the command and control of the
23 accused. Sixth, it states that it was the accused who ordered the
24 shelling. Seventh, it demands that the accused stop the bombardment. And
25 finally eight, it even raises the possibility of an international court.
1 There is not the slightest doubt, Mr. President, Your Honours,
2 that the accused as the commander of the troops that lay siege on Sarajevo
3 have effective command and control over these troops.
4 Just one piece of evidence, Defence Exhibit D186, which is one of
5 the first orders of the new SRK commander for full combat readiness to
6 literally everybody around Sarajevo in August 1995.
7 The fact that the accused had effective command and control is
8 supported by every witness, international, local, the documents including
9 also Defence witnesses and we have cited references in our closing brief.
10 Ms. Edgerton already mentioned General Fraser's comment: "In the
11 little box called Sarajevo, General Milosevic was the guy in command."
12 It's also noteworthy, Ms. Edgerton mentioned it as well that,
13 Defence did not dispute this fact. Of note, there is no mentioning in the
14 entire trial record of any rogue elements, any snipers, uncontrolled
15 gunners who might have fired into the city.
16 Your Honours, an excellent way to see how the accused exercised
17 command and control over his corps in Sarajevo, and indeed, how the SRK
18 was organised and how it worked is to look at their own records. You will
19 recall that OTP investigator Barry Hogan introduced to you almost a
20 hundred SRK and VRS documents. It's P639, a spreadsheet outlining the
21 relevancy of each of these documents. These SRK documents, I suggest,
22 show a disciplined professional army in action. Let me just mention a few
23 examples, aspects.
24 Control over ammunition: P702 mentions that the commander, the
25 accused Dragomir Milosevic, wants information on daily consumption of all
1 types of ammunition and stating that unit commanders are personally
2 responsible to General Milosevic for the implementation of the order.
3 P666 is a very important document as it relates to sniping. Here
4 Colonel Lugonja in August 1995, the SRK's assistant commander for security
5 and intelligence states that sniping can only be stopped by orders from
6 inside the corps.
7 P663 talks about that key assets, inclusive air bombs and
8 machine-guns are to be used throughout the SRK zone of responsibility as
9 required and decided by the SRK commander. That's 15th June 1995, two
10 weeks before the accused received the letter P18.
11 We have mentioned other elements of command and control, the
12 functioning of the SRK in our brief. I remind you of the excellent
13 intelligence the SRK and ABiH had. You remember Witness Veljovic who
14 testified about that, that they knew virtually anything that was happening
15 inside the confrontation lines. See his evidence at 5850 to 51. Also,
16 Mrkovic, another Defence witness at 8145, 46, and 8115. Look also at
17 P698, 700, and 709. These are intelligence reports signed by
18 Marko Lugonja, chief of intelligence and security of the SRK, showing how
19 well-informed, again, the SRK was about the military targets, proper
20 military targets inside the city of Sarajevo. These targets they could
21 have, should have engaged and not the civilians.
22 Finally, there was excellent work within the SRK staff. We heard
23 had testimony from John Jordan, Colonel Dragicevic, Rupert Smith, again
24 Mr. Veljovic at pages 5829 and 5841.
25 And the last point under this section there were professional
1 former JNA officers in the SRK. Mrkovic again at 8203 and 8209.
2 Your Honours, let me go back to the specific role of the commander
3 we heard from Defence witnesses the huge respect he had among them. This
4 is a very important element for you to consider. There was strict
5 discipline within the SRK, certainly as tight as under his predecessor
6 General Galic.
7 As an example, I refer you to the testimony of Veljovic again who
8 said that on page 5837 the accused was "a real soldier, always in the
9 front line, highly respected by the officers and soldiers alike."
10 His orders were respected. He could order anything and he would
11 have been obeyed.
12 Your Honours, based on all you have heard today and what I just
13 said all the elements of command and control, it's the Prosecution's case
14 as we point out also in our brief on page 124, paragraph 454, that the
15 overwhelming circumstances in this case lead to the conclusion that
16 illegal acts on the civilians were ordered. Over 15 months in the context
17 of an almost total siege of the city of Sarajevo a campaign of terror was
18 conducted by a single but professionally organised and disciplined
19 military corps under the command of General Milosevic, the accused.
20 This campaign consistently and continuously targeted civilians
21 directly and indiscriminately. The crimes were committed in a strikingly
22 similar manner with hundreds of civilians killed and wounded. The
23 attacks, you heard from Ms. Edgerton, increased or decreased in a
24 calculated manner, often consistent with the political objectives of the
25 Republika Srpska and the VRS at the time. These attacks were carried out
1 by the SRK operating within a single operating chain of command
2 functioning with military discipline. The SRK was under effective control
3 of General Milosevic, who not only ordered indiscriminate weapons such as
4 air bombs but failed to bring to halt to this campaign during the whole
5 period he was the commander. This is despite the fact that he received
6 protests and complaints. The only logical inference, Prosecution
7 suggests, is that General Milosevic ordered the campaign of shelling and
8 sniping of civilians with the primary purpose of terrorising.
9 Let me very briefly address failure to punish. I will not go into
10 this, as we call it, 7(3) evidence. We have discussed it in our brief and
11 the record is very clear.
12 The accused knew of the crimes and had all the necessary means at
13 his disposal to sanction the behaviour of his subordinates.
14 Colonel Dragicevic, and again, Veljovic at pages 5825, 5839 and 40, and
15 also D - Defence Exhibit - 185 addressed all the means available to the
16 accused, including the military police. P699 is a very concrete example
17 of the exercise of authority of the accused to sanction a soldier to a
18 prison sentence.
19 In conclusion, there is ample evidence that as it relates to the
20 crimes committed by SRK members against the civilian population of
21 Sarajevo there were no investigations, let alone prosecutions, even though
22 many other crimes such as threats, dereliction of documents or other kind
23 of domestic violent crimes were investigated during this time period were
24 effectively prosecuted.
25 Let me finish, Mr. President, Your Honours, with sentencing.
1 Article 24 of the Statute and Rule 101 and the developed ICTY
2 jurisprudence, in particular Galic appeal judgement at paragraphs 391 to
3 456, provide the necessary guidance as to the factors involved.
4 Of course, when assessing the gravity of the offence a
5 Trial Chamber must take into account the inherent gravity of the crime,
6 criminal conduct of the accused, the determination of which requires a
7 consideration of the particular circumstances of the case and the crimes
8 for which the accused was convicted, as well as form and degree of
9 participation of the accused in those crimes.
10 Let me very briefly address these factors.
11 Inherent gravity of the crimes. The magnitude of the accused's
12 crimes is enormous. If found guilty of count 1 of the indictment the
13 accused will be held accountable for one of the most severe crimes that is
14 or will ever be before this Tribunal, the crime of terror. In this case,
15 the terrorisation of the population of Sarajevo.
16 In addition, by participating in this terrorisation of the
17 civilian population of Sarajevo, Milosevic is further guilty of crimes
18 against humanity and violation of the laws or customs of war on a very
19 large scale.
20 The gravity of the offences committed by General Milosevic is
21 established by their scale, pattern, and virtually continuous commission
22 over many months. Hundreds of thousands inhabitants of Sarajevo, men,
23 women, children and elderly persons, as you heard so graphically from my
24 colleague Ms. Edgerton, were terrorised. Hundreds of civilians were
25 killed, thousands wounded.
1 You have already heard of the pattern of victimisation both in
2 terms of scale and choice of victims. The particular cruelty of the
3 crimes is shown by the fact that these acts were perpetrated against
4 civilians in the perceived safety of their homes, at hospitals, schools,
5 marketplaces and while commuting to the city or fetching water.
6 General Milosevic is charged with a campaign of attacks against
7 the civilian population of Sarajevo, which you heard it he inherited from
8 General Galic. For the portion of the very same campaign carried out
9 between September 1992, and August 1994, Your Honours, during which period
10 General Milosevic was, of course, for over a year Chief of Staff to
11 General Galic, General Galic was sentenced to a sentence of life
13 Both the crimes charged in the indictment against this accused,
14 General Milosevic, and his seniority and position within the SRK as
15 commander make the case substantially similar to that against
16 General Galic and so should be the applicable sentence. The accused's
17 tenure as co-commander is shorter than of General Galic. However, what
18 makes General Milosevic's responsibility even higher than that of
19 General Galic is that unlike the former, General Milosevic personally
20 oversaw and ordered for the first time during the siege in Sarajevo the
21 deployment of modified air bombs, inherently inaccurate weapons with no
22 legitimate military value even, and you heard it twice, the SRK refused to
23 use these air bombs because they thought they were dangerous. Not for
24 civilians, for their own soldiers.
25 Form and degree of participation of the accused in those crimes,
1 another factor. General Milosevic ordered the campaign of terror against
2 the civilian population of Sarajevo as held by the Appeals Chamber in
3 Semanza, I quote, "A higher sentence is likely to be imposed on a
4 principal perpetrator vis-a-vis an accomplice, in that case of genocide,
5 and on one who orders rather than merely aids and abets extermination."
6 See also the Celebici Appeals Chamber who found that proof of active
7 participation by a superior adds to the gravity of the superior's failure
8 to prevent and punish and may therefore aggravate the sentence.
9 Also, you heard it couple of times today, these were not crimes
10 committed in the heat of a battle, Your Honours, or with little time to
11 reflect on their consequences. Rather, these were continuing crimes in
12 which the accused's mental and physical participation to their commission
13 was renewed on a daily basis.
14 Aggravating factors. An aggravating factor can be taken into
15 account is the physical and psychological suffering inflicted on the
16 victims. The actual infliction of terror, as you heard, is not a
17 constitutive element of the crime of terror against a civilian population
18 under Article 3 of the Statute as held by the Galic Trial Chamber. In
19 this case; however, terror was actually inflicted on the civilians of
20 Sarajevo, and such factor can be considered in aggravation of sentence. A
21 second aggravating factor, Your Honours, is the accused's position of
22 authority. General Milosevic was an experienced military officer who was
23 50 years of age at the time of his appointment as commander of the SRK.
24 He had held various positions of authority throughout the conflict and was
25 very familiar with the conflict in Sarajevo.
1 General Milosevic was well aware of the extent of his obligations
2 laid out in the military codes of the former JNA and then of the VRS.
3 General Milosevic had a duty to uphold the laws or customs of war. The
4 crimes that were committed by his troops would not have been committed
5 without his assent. Despite being a professional soldier and career
6 officer, General Milosevic not only made little effort to distinguish
7 civilian from military objectives but willingly oversaw the targeting of
8 civilians in Sarajevo. In his position of SRK corps commander,
9 General Milosevic repeatedly breached his public duty from this very
10 senior position, thereby abusing his position of authority. The accused's
11 abuse of authority is a factor that aggravates his crime. In particular,
12 rather than using his senior position as a professional officer to ensure
13 that any military action was carried out lawfully, he gave orders to do
14 the opposite. There are no circumstances that mitigate the culpability of
15 the accused.
16 In light of the above, Your Honours, only the imposition of a
17 sentence of life imprisonment will adequately reflect the criminal
18 liability of the accused.
19 Thank you, Mr. President, Your Honours.
20 JUDGE ROBINSON: Thank you. I'll just give three decisions. The
21 first relates to a motion filed on the 29th of September in which the
22 Defence requested the removal from the record of Exhibit P546. The
23 Prosecution notified the Trial Chamber that it has no objection to this.
24 The Trial Chamber agrees with the parties that this document should not
25 have been given an exhibit number and the request is therefore granted.
1 The second motion is filed on the 8th of October. In that motion
2 the Defence requests the admission of a document disclosed to it under
3 Rule 68 on the 27th of September. The Prosecutor notified the Trial
4 Chamber that it has no objection to the admission of the document. It
5 also notes that the document pertains to meetings of UN personnel on the
6 conduct of the Bosnian Serb and the Bosnian Muslims. The document is
7 relevant and probative and it is admitted.
8 The last is a motion filed on the 8th of October in which the
9 Defence requests the admission of three statements pursuant to Rule 92
10 bis. The Trial Chamber has already decided on the admission of those
11 statements. It did so on the 25th of July, 2007, holding that the
12 statements were admitted upon fulfilment of the certification procedure
13 set out in Rule 92 bis(B). This certification has now been fulfilled.
14 The statements have thus already been admitted and the motion is therefore
16 We will adjourn until tomorrow at 2.15 p.m.
17 --- Whereupon the hearing adjourned at 6.04 p.m.,
18 to be reconvened on Wednesday, the 10th day
19 of October, 2007, at 2.15 p.m.