090721ED

Page 40

1 its appeal.

2 Please, Mr. Tapuskovic, you have the floor.

3 MR. TAPUSKOVIC: [Interpretation] Thank you, Your Honours. I will

4 now have an opportunity to present certain matters to you in relation to

5 the responsibility of Dragomir Milosevic. In keeping with the order of

6 the Appeals Chamber of the 6th of July, 2009, these oral arguments will

7 be limited --

8 JUDGE MERON: [Microphone not activated]

9 MR. TAPUSKOVIC: [Interpretation] -- and key arguments of the

10 grounds of appeal will be explained, or rather, predominantly it's the

11 first ground of appeal which largely relates to the other grounds of

12 appeal as well. We will be dealing with these matters until the break

13 and we should like to address the matters that you raised after the

14 break. However, should the Chamber have any questions for us, I should

15 like to focus on the facts upon which law applies, whereas my learned

16 friend would be the one to answer any questions related to legal matters.

17 Let me start at paragraph 7 of the judgement. The Trial Chamber

18 found that the Defence of the accused asserted that the area of Sarajevo

19 could not be characterised as a civilian area and that this was the key

20 argument of the Defence. This is by all means a key issue and it is on

21 the answer to this question that the finding of the responsibility of

22 Dragomir Milosevic under Article 7(1) of the Statute depends. Save for

23 this particular statement on the key argument of the Defence, at

24 paragraph 889, the Trial Chamber also advances its position that the

25 status of the population during the conflict was of crucial importance

Page 41

1 for the indictment as a whole. That's why at the start of its evaluation

2 of evidence, at paragraph 889, the Chamber first dealt with the status of

3 the population of Sarajevo in the urban areas of the town under the

4 control of the ABiH.

5 This essential, decisive factual dilemma is -- is crucial. The

6 notion of civilian population and the civilian area is a legal notion

7 which is regulated by legal authorities, which the Tribunal regularly

8 applies, and this is something that the Defence dealt with in detail at

9 paragraphs 27 to 32 of the appeals. When the law is applied to the

10 evidence contained in the case record, one can by no means arrive at the

11 findings at which the Trial Chamber arrived on the issue. These

12 conclusions of the Trial Chamber are, in fact, directly opposed to the

13 plethora of evidence adduced. You will, of course, already be aware of

14 that since in the fourth ground of our appeal, fourth subground, we

15 stated that the Trial Chamber completely disregarded certain evidence

16 presented by the Defence. In view of your position expressed in the

17 Halilovic case at paragraph 124, that the fact that a Trial Chamber does

18 not cite relevant evidence provides an indication of the fact that the

19 Trial Chamber did not take the relevant evidence into consideration to

20 begin with. In other words, it disregarded the relevant evidence.

21 I will now be dealing precisely with the evidence that the

22 Trial Chamber did not cite, in other words, did not consider at all and

23 subsequently did not evaluate. Of course it is the understanding of the

24 appellant that it is only by pointing to the disregarded, omitted,

25 specific evidence that he can meet his obligations on the appeal. At

Page 42

1 paragraphs 1 through 145 of the Appeal Brief, a detailed analysis was

2 presented of the evidence disregarded and omitted and which would have

3 been suitable for drawing reasonable conclusions that the areas of

4 Sarajevo under the ABiH control did not have a civilian status and that

5 the attacks, when launched by the forces of the SRK, were not directed

6 against a civilian population.

7 In our today's submissions we will only be pointing your

8 attention to a number of instances where the Trial Chamber's findings

9 stand in apparent opposition to the evidence in the case file. At

10 paragraph 896 the Trial Chamber found that 40.000 to 45.000 soldiers had

11 not been stationed in densely populated areas. What is not clear is why

12 there would not have been 40.000 to 50.000 soldiers there at all, as

13 found at paragraph 75 of the judgement. In fact, it is stated that many

14 soldiers were deployed in trenches or at positions along the line of

15 confrontation and the footnote to that paragraph refers to the evidence

16 on the ABiH offensive. Many soldiers. How many soldiers are they? That

17 sort of expression "many" doesn't mean anything. It could be 50.000 or

18 let it be 45.000.

19 These are regular units of the ABiH which, according to paragraph

20 71 of the judgement had 225.000 soldiers. A quarter of the entire ABiH

21 was permanently present in the part of Sarajevo controlled by this army.

22 These were soldiers of the 12th Division stationed in Sarajevo throughout

23 the relevant period of the indictment, and we know full well that the

24 1st Corps had 78.000 soldiers. The 78.000 soldiers faced 18.000 SRK

25 soldiers. At the time of the relevant period in the indictment there

Page 43

1 were fewer of them. There were roughly 15.000 of them, because according

2 to the evidence in the case file around 3.000 soldiers had lost their

3 lives by the start of the period relevant to the indictment.

4 Such a large number of regular soldiers of the ABiH who were

5 constantly present in the area of the town that was under their control

6 was an essential factor to be taken into consideration in drawing every

7 particular conclusion in relation to the status of the population in

8 Sarajevo in -- of the parts of Sarajevo under the ABiH control.

9 When it comes to the number of the armed persons intermingled

10 with the civilian population, in the part where the Trial Chamber

11 assesses the evidence concerning the status of the population in Sarajevo

12 under the ABiH control, the Chamber does not even refer to the police

13 forces of the MUP of BiH. Throughout the judgement, it treats them

14 solely as forces charged with maintaining law and order in a strictly

15 civilian environment and not as a force engaging in any sort of support

16 action to military operation in the way this was defined in Article 59,

17 item 3 of the Additional Protocol of Geneva Conventions.

18 At paragraph 190 of the judgement, the Trial Chamber deals with

19 the police forces of the MUP of the BiH. In that paragraph, the Chamber

20 found that the BH police units were not part of the ABiH. The

21 Trial Chamber found that the evidence indicated that the units were under

22 the command of the government and the MUP of the BiH. The Trial Chamber

23 concludes that the evidence did not substantiate a conclusion that the

24 regular police was part and parcel of the forces of the ABiH or that the

25 regular police assisted in the combat operations during ABiH offensives.

Page 44

1 The Trial Chamber arrives at such a conclusion by stating at

2 paragraph 188 that the strength of the MUP BiH was at around 11.000 or

3 12.000 members, which, had these police units in fact been engaged in

4 military operations, would have increased significantly the number of

5 armed persons in Sarajevo under the control of the ABiH. And this would

6 have had a bearing on the establishment of the status of the population.

7 Firstly, there exists apparent contradictions in the findings at

8 paragraph 190 and the findings at paragraph 188. Thus, at paragraph 188,

9 cases are referred to where the police forces were used for military

10 actions, particularly for its special units. These are detachments Bosna

11 and Lasta. Even if we disregard this fact, the finding of the

12 Trial Chamber at paragraph 190, that the evidence did not substantiate

13 the -- a conclusion that the regular police assisted in the -- in the

14 combat operations during the ABiH offensive stands in direct

15 contradiction to the evidence adduced, the evidence which the

16 Trial Chamber did not take into consideration at all.

17 I will now be dealing precisely with the evidence indicating that

18 the MUP units were part and parcel of the ABiH and that, as such, they

19 took part in combat operations together with the units of the 1st Corps

20 of the ABiH. I will be now referring you to the Defence evidence that

21 the Trial Chamber completely disregarded in arriving at their findings.

22 D190, D417, D426, and D282. I will now be dealing, because of the

23 restrictions of time, only with one. This is a document of the

24 12th Division at -- we cannot be calling up the document, but at page 6

25 of the English version of D190 it is stated:

Page 45

1 "The forces of the 12th Division with elements of other

2 forces" - and let me not read through everything. The document

3 previously states that they were active in the part of the town under the

4 control of the ABiH, and together with HVO units they refer to the unit

5 Tvrtko, Kralj Tvrtko, so these are the forces that, in coordination with

6 the MUP of Bosnia and Herzegovina, were to engage in and what follows

7 next is the precise axis of attack. It is stated:

8 "The command of the 12th Division will organise coordinated

9 action of the 155th Brigade, 102nd Brigade with MUP units and" -- the

10 document again repeats that "the support to be provided by the units of

11 the MUP of the BiH should be precisely defined in this coordinated

12 action."

13 Now, why did I select this document? Because it is obvious that

14 the MUP forces from the Stupsko Brdo, which is an elevation in Sarajevo,

15 acted independently. It is quite clear that in this particular case it

16 was the Ministry of the Interior which had them under their command,

17 whereas in this document the MUP was placed under the direct command of

18 the ABiH; in this other case, the MUP acted independently and was under

19 the command of the MUP leadership. These other documents I referred to

20 also show how the police on a constant basis acted together with the

21 military in the combat operations, starting from June all the way through

22 to the end of the indictment period.

23 Based on the foregoing, it can be concluded that the police

24 forces of the MUP had permanently been engaged in military actions and

25 providing support to military operations. The full strength of both

Page 46

1 military and police forces which acted together is not -- or was not the

2 subject of deliberations of the Trial Chamber and it was not something

3 that the Trial Chamber took into consideration in arriving at conclusions

4 on the status of the population in Sarajevo. And this is, you will

5 understand, of crucial importance in understanding if this was indeed a

6 civilian area. We will be indicating to you what sort of activity took

7 place there in the indictment period.

8 When it comes to the number of the soldiers of the ABiH which the

9 SRK confronted together with its 15.000 soldiers that it had during the

10 indictment period, we will be indicating something else. At

11 paragraph 897 of the judgement it is stated that there was evidence

12 indicating that during the summer offensive soldiers of other corps of

13 the ABiH provided support to the soldiers of the 1st Corps. We can agree

14 with the finding of the Trial Chamber in the paragraph that there was no

15 evidence indicating that soldiers of the ABiH started arriving en masse

16 to the area of Sarajevo under the control of the ABiH.

17 In paragraph 784 attacks that the army of Bosnia and Herzegovina

18 carried out as of May 1995 to the positions of the SRK are referred to.

19 In that paragraph the statement by Major Veljkovic is assessed about the

20 total number of the ABiH soldiers who took part in these attacks because

21 he claimed that in Operation T-95, 61.5 per cent of the total forces of

22 the ABiH took part, namely between 130 to 135.000 soldiers against 15.000

23 of SRK soldiers at the time time-period covered by the indictment. The

24 Trial Chamber notes that the statement by Major Veljovic about the total

25 ABiH number is not substantiated by other evidence for these operations.

Page 47

1 That is why I'm going to cite only the numbers of the documents

2 indicating opposite of what is stated in the judgement. These are

3 documents D106, D190, D384, D388, D386, and D390.

4 From Exhibit D190, it can be seen that in the assault actions as

5 of June 1995 onwards, the 1st Corps is joined by the forces of the 3rd,

6 4th, and the 7th Corps. As it can be seen in the other exhibits that we

7 referred to, it can be seen precisely how many soldiers each of the corps

8 has, and then it can be established that in these joint actions a much

9 larger number of soldiers took part than the cited number of 135.000.

10 These facts about the overall number of the ABiH number of soldiers are

11 of major importance for the actions of the accused at the time of the --

12 covered by the indictment. The SRK was in a total encirclement at all

13 positions until the end of the conflict, and according to evidence at the

14 time, sustained the bulk of casualties, both in its ranks and also in the

15 civilian area in their area of responsibility.

16 As for the military activities of those 45.000 soldiers, in

17 paragraph 896 the regular execution of military activities is referred

18 to, and the Trial Chamber sees the only activity of those soldiers as

19 them visiting their homes from the line of separation and concludes that

20 the total effect of their movement did not change the civilian status of

21 those urban areas. The conclusion that this movement of 45.000

22 soldiers - and I indicated in the documents that together with the police

23 forces this number actually amounted to 60.000 - so the movement of these

24 soldiers from the trenches to their homes had the only objective, as

25 referred to by the Trial Chamber, as actually completely opposite to the

Page 48

1 evidence on the offensive of the ABiH in the entire series of ABiH

2 documents, and these are not actually referred to at all in the footnotes

3 relating to paragraph 896.

4 In paragraph 898 it is concluded that it is clear that within the

5 line of conflict there were military targets. For example, and this is

6 stated in the judgement, on a military map of the BiH army about

7 30 command posts of army BiH units were shown which were deployed

8 throughout the entire area within the area of conflict. In the footnote

9 for this conclusion, the Trial Chamber refers to one single piece of

10 evidence, and that is map P194. Evaluating that single exhibit, it is

11 concluded that those command posts, as military targets, were not of a

12 sufficient number so that the entire urban area within the area of

13 conflict would be considered as losing their civilian status. Of course

14 you're going to look at this map. Not only did the Trial Chamber in

15 establishing the existence of military facilities in the territory of

16 Sarajevo under the control of the B&H army use only that single exhibit

17 and disregarded a multitude of other exhibits, but it only records the

18 command posts therein.

19 The map shows much more. The command posts were deployed

20 throughout the territory of Sarajevo under the control of the Army of

21 Bosnia and Herzegovina and always it was in the heart of the area of

22 responsibility of specific brigades of the 12th Division which was

23 deployed in that area. And based on that, it can be easily seen that the

24 102nd, 155th, 101st, 115th, 152nd, 105th, 111th, and the 112th Brigade of

25 the 12th Division, as well as the 104th Brigade of the 14th Division of

Page 49

1 the 1st Corps of the B&H army were deployed throughout the entire

2 territory of the town of Sarajevo under the control of the B&H army

3 during the time-period covered by the indictment. The map also indicates

4 not only what I referred to but also that the cited brigades are really

5 covering the entire territory of that part of town.

6 Also visible on the map are the positions of battalions of all

7 the cited brigades, some of which have as many as four battalions each.

8 It's true, the positions of lower-ranking units are not recorded which

9 have fewer fighters, but we know that they're there from other exhibits.

10 What is more, the map also indicates the positions of heavy weaponry

11 throughout the entire area of the area of responsibility of these

12 brigades. For example, it indicates the positions of mortars of the

13 101st Division in the very town centre.

14 We asked -- we would ask the Appeals Chamber to look at the

15 contents of paragraph 81 of the judgement. The Trial Chamber there

16 states that the 1st Corps of the B&H army disregards the exhibits whose

17 existence they established in the first place. It does not consider or

18 refer to any of those exhibits. For that reason we would like to ask you

19 to look at paragraph 81 of the judgement. In it, the Trial Chamber

20 established that evidence indicates that the Army of Bosnia and

21 Herzegovina was in possession of howitzers, cannon, rocket-launchers, in

22 the area of Sarajevo under the control of the B&H army. So howitzers,

23 cannon, rocket-launchers, weaponry for the destruction of armoured

24 vehicles, anti-aircraft guns, different kinds of guns, up to 100 mortars,

25 up to 12 tanks, and vehicle-mounted mortars which moved around the

Page 50

1 different areas of the town. From footnotes 287, 288, and 289 of the

2 judgement, we can see that we're talking about heavy weaponry which was

3 located in the area of Sarajevo under the control of the 12th Division of

4 the Army of BiH. The map also shows negligible number of mortars or

5 unknown number of mortars, and from the cited evidence, the Court

6 establishes that there were as many as 100 mortar positions. This is

7 something that the Trial Chamber does not even refer to in paragraph 898

8 of the judgement.

9 I would need to read to you a part of the testimony by

10 Witness Fraser which we quoted in our Appeal Brief, I need to read it

11 here because we find this is very important. He said:

12 "Muslim mortars were deployed in the town and it was extremely

13 difficult for the Serbs to respond to this fire because they were in

14 contact with civilians, they were deployed in civilian environments.

15 This is evidently deliberately done because in the event of counter fire

16 it would have been very, very difficult not to endanger civilians."

17 This is a high-ranking officer and this is his testimony from the

18 time when he was in Sarajevo, based on his experience. And to continue,

19 in paragraph 82 of the judgement, the existence of a factory for the

20 manufacture of shells is established in Ali Pasina Polje, for which the

21 judgement establishes that it is absolutely a civilian zone. Nobody --

22 it's as if nobody would be going to collect weapons from that paragraph.

23 In paragraph 84 of the judgement it was established that the

24 1st Corps did not withdraw the heavy weaponry when the exclusion zone

25 went into effect. In all the situations, when it was important, weapons

Page 51

1 were taken from these depots and used for fire, and this is something

2 that is shown in the evidence and not reflected in the judgement. In

3 paragraph 129 of the judgement, for example, the existence of howitzers

4 is established at positions on Zuc hill.

5 In paragraph 763 of the judgement it is established that there is

6 evidence that the ABiH opened fire from Mojmilo hill, from Hum hill, from

7 Debelo Brdo hill, from Colina Kapa, from Ali Pasina Polje, Igman,

8 Hrasnica, whereby the footnotes refer to a number of exhibits on which

9 this conclusion is based. These are hills where allegedly Serbs had

10 positions. These are elevations at the highest level, whereas the

11 evidence indicates that these were places that were taken up by units of

12 the Army of Bosnia and Herzegovina because they were within this line of

13 separation. However, the top elevations, except the one in Trebevic,

14 were always held by the Army of Bosnia and Herzegovina. This is

15 something that is indicated in the exhibits. I'm going to refer to some

16 of them if not all.

17 The Serbs were on the other side at the foot of the hills, and

18 this is this misconception that was accepted. We managed -- because we

19 had access to archives of Bosnia and Herzegovina and got these exhibits,

20 we managed to point this out. I must point out these major difficulties

21 that we encountered in the course of our work.

22 From the very beginning of the trial we had acquired more than

23 4.000 documents from archives of Bosnia and Herzegovina, and it was very

24 difficult for us to use these documents, specially during a part of

25 the -- the part of the Prosecution presentation of the case. We didn't

Page 52

1 have the translation. We translated some parts of the documents

2 ourselves. Many documents that I'm going to refer to today were

3 translated later and then admitted in their entirety. And these exhibits

4 actually indicate what I'm presenting to you today. With a lot of

5 difficulty, however, we did manage to have these documents admitted, we

6 managed to translate them, even though each document was questioned for

7 relevancy. They were relevant because those positions and the fire

8 indicate that these were not civilian areas at all that we're dealing

9 with.

10 Paragraph 129 of the judgement, I've already covered that. Now

11 we're talking about paragraph 764, 765, 766, and 767 of the judgement

12 where there is evidence about heavy weaponry from which the ABiH fired on

13 the territory under SRK control. In the course of 1994/1995, they fired

14 at Grbavica, Rajlovac, Vogosca, and Ilidza. These were also urban areas

15 of the town, only they were under the control of the Army of Republika

16 Srpska. And Grbavica, for example, and the area of Nedzarici were a

17 ghetto, they were totally encircled in the heart of the town and this is

18 something that the evidence shows, and we dealt with this in our Appeal

19 Brief so I do not wish to repeat that here.

20 In paragraph 83 of the judgement there is mention of sniper

21 position and sniper weapons. There is also reference to sniper activity

22 of the Army of Bosnia and Herzegovina, paragraph 768 of the judgement.

23 In paragraph 7, General Milosevic said that there was sniper weaponry.

24 The documents indicate that there was sniper activity by the B&H army,

25 but - and this is indisputable - but also there are assertions that every

Page 53

1 activity or sniper fire from the Serbian forces was directed against

2 civilians -- actually, the activities refer to sniper activities of both

3 the armies.

4 And then we're talking about paragraph 771 of the judgement where

5 evidence is referred to about the fire by the Bosnian government

6 opened -- was opened from a number of buildings and from other locations

7 under the command of the ABiH, such as the Mojmilo, Debelo Brdo hills,

8 the Loris building, Hum hill, and Pofalici. It's similar in

9 paragraph 773 and 774.

10 Paragraph 776 refers to evidence that the Army of Bosnia and

11 Herzegovina regularly opened fire from different locations throughout the

12 town very often and very close to positions of the United Nations, the

13 building of the PTT, the Zetra sports hall, the Marsal Tito barracks, and

14 that it used mobile mortars. In paragraph 777 we're talking about

15 opening fire from positions which were close to locations of the

16 UNPROFOR.

17 This very evidence stated in the judgement and completely ignored

18 by the Trial Chamber when it came to drawing conclusion on the civilian

19 status on one part of Sarajevo under the control of ABiH completely

20 compromised the conclusions of the first-instance Trial Chamber. These

21 are facts which have been established in the judgement and have not been

22 evaluated in the sense, as I've just pointed out.

23 I'm going to point out to many UNPROFOR -- four UNPROFOR reports.

24 There are many more of them but they have been completely ignored. I'm

25 talking about P19, P39, P519, as well as D3. It arises from the

Page 54

1 aforementioned pieces of evidence that there was the activity of the

2 artillery of the Army of Bosnia and Herzegovina immediately in the

3 vicinity of the UNPROFOR facility, but also one can establish the

4 positions of the heavy artillery of the BiH army across the town. This

5 is shown by document or evidence P19. Furthermore, one can also

6 establish that there was artillery fire opened on the 16th and

7 17th November, 1994, immediately after Dragomir Milosevic assumed his

8 duties. The activities of mortars from the area or even in the vicinity

9 of the building of the Presidency, residence, and the Kosevo Hospital.

10 The evidence also corroborates allegations that fire was opened from

11 heavy artillery in town which constitutes the violation of the zone of

12 total exclusion, as it is stated in the document under P391. Evidence

13 also speaks about fire being opened from the vicinity -- in the vicinity

14 of the building of the PTT and the building of the television. This is

15 in document P519, and that was on the 28th of June, 1995.

16 Furthermore, there is evidence of sabotage fire from the

17 south-eastern suburbs of town as seen in document D3. All of these

18 positions were in the heart of the centre and that's why I mention these

19 four, or rather, three UNPROFOR reports, three of them being Prosecution

20 evidence and one of them being Defence evidence. It arises from the --

21 or rather, I have just mentioned Exhibit 594 -- P194, which was a map

22 depicting the positions of all the brigades in the territory of the city

23 of Sarajevo under the control of the BiH army.

24 And now I'm going to talk about documents produced by the

25 BiH army which have all been admitted into evidence. I'm talking about

Page 55

1 decisions, orders, reports on activities, the daily consumption of

2 ammunition. Believe me, for every single day we had proof that there was

3 activity. We tendered some 20 documents which speak about where the

4 weapons were and how many shells were fired on every day. There were

5 days when as many as 1.000 shells were fired, and would you say that this

6 was a civilian zone?

7 These maps always depict the areas of responsibilities of each of

8 the brigades as well as certain areas which have their depth and width

9 and cover the entire area of the city under the control of the BiH army,

10 the Army of Bosnia and Herzegovina, just as the map shows. And it is not

11 only about the 30 command posts, because every command post as -- had its

12 forward command post and observation posts. These documents also show

13 the positions of infantry, artillery, mechanised strength, engineers,

14 communications systems, the positions of anti-aircraft defence and

15 observation posts. You can also see the positions of certain services

16 such as quarter-master services and technical services, as well as the

17 positions of some smaller units, the positions of the military police, or

18 something that was totally outside of the brigade command, even the

19 reconnaissance companies, the positions of logistics structures and their

20 rear bases. You can even show the positions of reconnaissance and

21 sabotage units.

22 One document, for example, issued by the supreme commander Delic,

23 unfortunately we could not bring Delic as a witness. The Trial Chamber

24 did not want to bring him as a witness despite our implorations although

25 he was sitting in the adjacent room. And you can see in that order how

Page 56

1 his soldiers were supposed to act. I'm going to find the document and

2 I'm going to read from it. The reference is made to destroy, come back -

3 this is in capital letters - destroy and come back, which means go to

4 Sarajevo, destroy something there, and come back.

5 I would like to point out here that apart from the infantry, the

6 positions of other military structures could never be on the separation

7 lines especially not in the trenches, and the Trial Chamber reduces

8 everything to the fact that some or many soldiers were in the trenches

9 and the only thing that they did was that they sometimes went home to

10 rest there.

11 And obviously I'm now in a very difficult position. I cannot,

12 although I'll try as much as the time permits, I'm going to try and show

13 you some of the documents among the documents that show about the

14 positions and the actions and I'm going to try to point to some crucial

15 things. However, I can at least mention the number of each of those

16 documents, and then if you have the time and inclination, you may be able

17 to look at the documents which have all been translated. And you will be

18 in a position to see what they're all about because each of the documents

19 speak for themselves, and they will show you that the conflict had a

20 permanent duration and there was no single day without a conflict. How

21 each of the sides reacted is a subject of a possible evaluation, but

22 first of all you have to establish whether that was a civilian zone.

23 What is being claimed all the time, what is being proven all the

24 time, or attempts were being made to prove that this was a civilian

25 zone - that's the Prosecution case - but I'm trying to tell you

Page 57

1 differently and it's up to you to evaluate. However, the first thing in

2 order to establish any form of responsibility you have to establish

3 beyond any reasonable doubt that that was a civilian zone, and these are

4 the documents in question: P492, D190. I'm going to read at least one

5 part from P492 because this is a statement provided by General Karavelic.

6 Before this Tribunal we were able to hear only two officers and

7 one foot-soldiers. The only people who were examined were police

8 officers. The Prosecution wanted to demonstrate in that way that in a

9 civilian zone the only people who can testify are police officers,

10 because nothing was happening there; and at the end of the day, the

11 police officers were also experts about the incidents and the things that

12 were happening there, although they directly participated in the fighting

13 all the time. And their credibility is something that should be

14 questioned. This is the only thing I can tell you. However, I'm going

15 to read from this Prosecution exhibit to point to some very crucial

16 things. D417, D418, D426, D195, D194, D270, D398, D423, D413, D463,

17 D462, D110, D163, D118, D154, D219, D107, D494, D428, D423, D160, D416.

18 What follows is a series of documents with -- the admission of

19 which we had a lot of difficulty, although they depict the positions and

20 activities of all kinds of weapons in the territory of the town under the

21 control of the BiH because the Trial Chamber always wanted to question

22 their relevance, and we were in the possession of 4.000 documents of the

23 same kind and we managed to tender only some. And even those that we

24 managed to tender into evidence speak about hundreds of thousands of

25 bullets being fired from infantry weapons and thousands of shells. We

Page 58

1 did not have enough resources to tender many other documents.

2 These days I would like to mention that, although it may not be

3 important for you, one of the principal newspapers in Bosnia-Herzegovina

4 puts a question - I don't know how they know it - they ask: Where did

5 the Milosevic Defence team obtain all the documents? And they ask for

6 the responsibility of those who provided us with the documents. But it

7 was their duty, and we tendered some which we were able to translate, but

8 they are a good enough illustration of the things that I'm trying to

9 point out. What documents are these? D189, D188, D467, D308, D191,

10 D470, D507, D472, D471, D437, D313, D436, D466, D468, D469, D505, D236,

11 D473, D504, D465, D153, D192.

12 Each of the aforementioned documents speaks about combat

13 activities in one day, and each of the documents shows what kinds of

14 weapons were used, how many bullets were fired. Hundreds of thousands of

15 bullets are mentioned in a single document. These documents also show

16 what heavy weaponry was used, how many shells were fired, but first and

17 foremost they show the positions of the heavy weaponry.

18 In one place in the judgement - I can't remember exactly where, I

19 will remember and I'll tell you - it says that the Defence has not

20 provided a single piece of evidence to show that Sedrenik was a war zone;

21 however, there are nine documents that we have tendered that shows that

22 Sedrenik, which was an urban area in the town, how fire was opened from

23 there on particular days. Those weapons were not in trenches. There is

24 a document saying, Today we opened fire from a distance at Spicasta

25 Stijena. I believe this is document 313, there are some others and maybe

Page 59

1 I'll have enough time to show them to you.

2 And when I said just a little while ago that document P492 is

3 something that I have to quote from in more detail, and I believe that

4 the time will allow me to do so, and let me remind you that this is the

5 statement provided by General Karavelic, the commander of the 1st Corps.

6 Look what he said? You have that on page 6 of the English version, and

7 I'm saying that this is on page 6 of the English version in the last

8 paragraph of the chapter entitled "Formulating of Political and Military

9 Strategy." And I quote:

10 "When it comes to the defence of certain parts of Sarajevo which

11 seem to be militarily unsustainable, what was necessary was to preserve

12 every single metre. All Sarajevo was of vital importance because we did

13 not have enough manoeuvre area. Every square metre had to be defended

14 irrespective of the military difficulty it may have presented."

15 He is talking about positions on every single step, every single

16 square metre. He's not talking about command positions. And now on

17 page 6 of the English version under the title "Defence Tactic in

18 Sarajevo," this is what Karavelic says:

19 "Our defence tactic had to protect the defenders by digging

20 ourselves as deep as possible. We created two lines of defence with two

21 trenches around the entire perimeter. There were two lines of trenches

22 around the entire city of Sarajevo. Those lines were dug-in down to

23 2 metres and they also comprised deep shelters and dormitories. The

24 engineers' support or artillery support was the vital factor of defence."

25 A reference is made to defence but now what about offensives.

Page 60

1 That's an entirely different issue.

2 "In some areas the defence was reinforced by a third line. This

3 was not a line of defence in the literal sense of the word but a lot of

4 strongholds which could be defended in case of a breakthrough. Brigades

5 had one battalion on the front line, one was on reserve and the third was

6 on furlough, and then they would take turns usually every week. The

7 1st Corps had a manoeuvre brigade in reserve. It did not have its own

8 area of responsibility. It was at disposal for counter attacks as

9 needed, and those brigades were also rotated. The manoeuvre brigades

10 were kept in a very high level of combat-readiness so that they could be

11 rapidly deployed."

12 This means that there were three front lines in-depth. One

13 battalion, as it is described herein -- the entire city of Sarajevo was

14 intersected by positions. And now, please, if that was indeed the case,

15 can such an area with such activities be qualified as a civilian zone?

16 And finally, I believe that I'm duty-bound to try -- I believe I'll have

17 the time to try and point out to some other documents which I believe I

18 should quote from.

19 Can I have a moment, please.

20 [Defence counsel confer]

21 MR. TAPUSKOVIC: [Interpretation] We have covered this. I want to

22 refer you to D190. This is an order of the 8th of June relating to the

23 1st Corps as a whole. There at page 3 of the English version, item 2,

24 mention is made of an activity from a certain stretch of the front line,

25 and then units are mentioned which were supposed to set out from the

Page 61

1 city. However, more importantly, at page 6, item 6, of the English

2 version mention is made of the fire support and of the precise areas of

3 responsibility, specific weapons and positions, anti-armour combat.

4 Specific positions are mentioned at Sokolje, in specific apartment blocks

5 and houses. I'm constantly referring to the 12th Division, and I simply

6 do not have the time to relate to matters which have to do with other

7 divisions. It is not necessary at this stage.

8 The other document, D417 is also of paramount importance. At

9 pages 3 -- or rather, at page 3 of the English version you will find the

10 specific areas of responsibility as they were positioned in various parts

11 of town. Then you have the deployment disposition, offensive forces,

12 defensive forces, anti-armour combat forces, security forces, commanding

13 forces, forces on stand-by. For instance, for the 112th Brigade you have

14 the exact positions of artillery in the Astra area, the forward command

15 post, et cetera. You will find this in respect of each and every unit

16 and I do hope that you will study the document. Every brigade unit has

17 its own AOR clearly defined -- it is clearly defined which part of the

18 ABiH-held territory is controlled.

19 For instance, guns, at page 7 it's stated in the area of Ciglane,

20 Brescici, Busce, Sedrenik, and Sedrenik is mentioned in the judgement as

21 a purely civilian area. It is stated that we did not adduce any evidence

22 to show whether it was a civilian or a military area. Et cetera. I

23 would need a lot more time to deal with all this. We also have mention

24 of engineering support in the same document, D418, for instance. For the

25 month of March you have the positions of the brigades and the weapons.

Page 62

1 D195 is something that should be paid specific attention to. The

2 commander of the 101st, who is in the centre of town, clearly details the

3 various positions of weapons on the Heroj Square, Hrast area, Bristol

4 Hotel area. Every piece of heavy weaponry is specifically mentioned here

5 as well as the position where it was located.

6 Document D194 which, towards its end states:

7 "In all the areas of defence of the various battalions,

8 facilities, or rather, firing positions should be created in order to

9 fire over the heads of own units."

10 D270 also speaks of the defence areas in the depth. Then 413 as

11 well. 462 speaks of the sniper fire and the number of fortified position

12 from where fire was to be opened. There was also a number of decoy

13 sniper positions, mock sniper positions. Then you have document P163

14 where Delic writes to Izetbegovic, the Commander-in-Chief, and says:

15 "We must continue stating that we will be defending ourselves and

16 not attacking first, as we have always been doing. Demilitarisation of

17 Sarajevo is out of the question for the following reasons ..."

18 How can a civilian zone be demilitarised? Can someone explain

19 this? The document is self-explanatory. This is simply unfathomable.

20 Or take only D118: "In the period from the 15th of June until the

21 3rd of July," in other words, a 20-day period, "we fired from all sorts

22 of weapons at our disposal upon over 300 enemy targets."

23 The document goes on to say:

24 "We believe that the number of damaged combat and non-combat

25 positions is higher because we fired on them in conditions of limited

Page 63

1 visibility at night where observation was not quite possible."

2 So we're talking about a period of 20 days and it was Fikret

3 Prevljak, the commander of the 12th Division, writing about this. For 20

4 days there was fire from all weapons at the disposal of the

5 12th Division. There was another document that I wasn't able to find a

6 moment ago, D219, which says:

7 "These tasks are to be carried out in such a manner that the

8 enemy is made quite unstable and uncertain and the manner in which this

9 is to be done is destroy and return," and this is an order issued by

10 Rasim Delic, who appeared before this Tribunal.

11 Let me not go into the other documents now. This is the sort of

12 documents I'm referring to.

13 JUDGE POCAR: Judge Meron would like to put a question.

14 JUDGE MERON: Counsel, we've been hearing your argument with

15 interest, but I would be grateful to you if you could give us some

16 broader indications regarding the following: When a city -- civilian

17 city's under attack and uses armed forces to defend, does it lose,

18 thereby, its civilian character and become some military objective? And

19 in what situation or constellation of forces would an essentially

20 civilian city retain its civilian status while defending or using armed

21 forces defensively? Thank you.

22 MR. TAPUSKOVIC: [Interpretation] Can I have a moment to consult

23 with my learned friend?

24 [Defence counsel confer]

25 MR. TAPUSKOVIC: [Interpretation] It is a very sensitive issue and

Page 64

1 I will try to give an answer. The war broke out in 1992. In late

2 1994 -- or rather, the documents that I referred you to show that in late

3 1994 this was no longer a civilian area, although there was a civilian

4 population. Through other evidence that I wish to refer you to, I will

5 show to you in answer to your question what the specific situation was

6 when it comes to the civilians themselves. The civilians were unable to

7 leave the town and they were used directly.

8 It is a sensitive issue. This sort of situation that prevailed

9 in Sarajevo in 1994 demonstrates that there was not a house to be found

10 which did not have weapons. Every house was a military target. We have

11 the testimony of a senior officer, Fraser, that I referred to earlier,

12 who said that in a certain way every building was a bunker, that there

13 was not a single building that was not fired from. This has to do with

14 what I mentioned earlier about the positions of the mortars and with what

15 senior representative of UNPROFOR had to say in relation to that.

16 It is a matter for you to decide on, but the question is: Was

17 this a civilian zone or a military zone? This is something that you will

18 decide based on my submissions. I -- we will be trying to present the

19 matter in detail. I do apologise. I am growing a bit tired and I would

20 like to refer you to a number of other pieces of evidence and my time is

21 running out. So -- and to leave me some time to look into the matter

22 that you've asked me about.

23 In relation to this matter, the deaths of soldiers and civilians

24 in the SRK-controlled parts of Sarajevo at Grbavica, Dobrinja, Nedzarici,

25 Lukavica, Vogosca, Ilidza, Hadzici, et cetera, would they have come about

Page 65

1 had there not been artillery and other sort of fire from the ABiH? Well,

2 this is a question and that's why the finding of the Trial Chamber at

3 paragraph 798 that the deaths of the Bosnian Serbs did not have any

4 bearing on the criminal responsibility of the accused is something that

5 is hard to understand. Of course there was -- were victims on both

6 sides, highly regrettable victims, but their deaths indicate that they

7 could not have been killed had they had a civilian area next to them.

8 There was a high number of civilians killed from artillery fire in the

9 part of town under the control of the SRK, just as there were many deaths

10 of civilians on the ABiH-controlled part of town, simply because this was

11 a result of threats to civilians who should never have been threatened to

12 begin with. It will be up to you to decide whether there is any

13 responsibility as alleged in the indictment when all the circumstances of

14 the armed conflict are taken into consideration. Hopefully I will be

15 able to raise a few other points and I don't think I will be able to

16 cover everything.

17 Let us go back to the victims which are treated in the judgement

18 as the victims of the activity of Dragomir Milosevic. The judgement did

19 not establish beyond reasonable doubt either the total number of victims

20 in the indictment period or even less their civilian status. We will not

21 be repeating what we analysed at great length in paragraphs 100 to 128 of

22 our Appeals Brief. I only wish to say that the way in which the

23 Trial Chamber establishes the causal link between the actions of

24 Dragomir Milosevic and the victims which, according to reports of the

25 Bosnian police allegedly died in the territory of the ABiH-controlled

Page 66

1 Sarajevo in the indictment period is unacceptable.

2 When we refer to the causal link we primarily had in mind the

3 incidents which the Prosecution and the Trial Chamber believe constituted

4 the crucial evidence that the attack was directed from -- against

5 civilians. In other words, the investigations carried out by that same

6 police which was part and parcel of the forces of the BiH were accepted

7 without any reservations, just as were the findings by Ewa Tabeau, which

8 does not make a distinction between the victims fallen in the

9 ABiH-controlled parts of Sarajevo and the SRK-controlled parts of

10 Sarajevo. She refers to all of them as the victims of the SRK activity

11 in the indictment period.

12 At paragraph 737, it is stated that throughout the war from 1992

13 through to the end of the war, 1.800 to 2.000 inhabitants perished.

14 However, there are no separate figures for the period covered by the

15 indictment. According to what this paragraph says, one could conclude

16 that the victims fallen in that period amount to roughly 500.

17 Seemingly, the general position of the Trial Chamber was that

18 the -- a civilian zone can only have civilian victims. Despite

19 60.000 soldiers who were regularly stationed and active in the

20 ABiH-controlled Sarajevo, there is not a single soldier because it was a

21 civilian zone. Even when deceased persons wearing ABiH uniforms

22 transported to the hospital, at paragraph 675 it is concluded that the

23 persons probably perished while buying victuals. Is it possible that not

24 a single victim was to be found who was a member of the armed forces of

25 the ABiH, given the dimensions of the combat activity?

Page 67

1 According to the judgement - and I want to draw your attention

2 particularly to this - victims were the consequence of combat activities

3 which had always come -- or fire which had always come from the

4 SRK-controlled positions. Whenever the possibility of Sarajevo

5 inhabitants leaving the ABiH-controlled parts of town was discussed in

6 the judgement, it was always stressed that Sarajevo was a besieged town

7 and that every attempt to leave the town carried a risk of death and that

8 the civilians were unable to leave the town in any significant numbers,

9 paragraph 749, or that because of the SRK fire from the hills surrounding

10 the town, the civilians were unable to leave the town under the control

11 of the ABiH, paragraph 417. Your Honours, at this stage I would not like

12 to open the debate about who held the positions on the hills surrounding

13 Sarajevo. I would refer you to our Appeals Brief paragraph 139, which

14 shows that all the hills around Sarajevo, except for Trebevic, were

15 occupied by the ABiH forces, and this is based on the evidence. I don't

16 want to stress too much the testimony of Milorad Katic who spoke of the

17 possibility of leaving Sarajevo, the ABiH-controlled part of it, when the

18 blue paths were open, paragraph 748.

19 However, it is very important to answer the question whether it

20 was only the SRK weapons which led to the victims in the ABiH-controlled

21 parts of the town in the indictment period; or better said, is there any

22 evidence about the activities of the 12th Division of the 1st Corps of

23 the BH army activities directed at their own positions, at the parts of

24 town under their control, and particularly whether such activities caused

25 any victims among citizens, BH soldiers, UNPROFOR soldiers who were in

Page 68

1 the ABiH-controlled parts of Sarajevo; or is the Trial Chamber's finding

2 accurate to the effect that the only reasonable conclusion that can be

3 inferred from the evidence is that the shots were fired by the SRK, and

4 who should such victims, if any, be attributed to?

5 I'm now going to refer to exhibits that the Trial Chamber did not

6 review at all and it should have done so in line with the legal

7 considerations. These are exhibits D190, D417, D205, D216, D149, D148,

8 D66, D67, D147, D51, and D179, which all describe the same event. The

9 first two documents were not considered at all by the Trial Chamber, and

10 they indicate the existence of a general order to fire on anyone who

11 tries to cross into territory under the control of the SRK. Thus,

12 document D190, I'm going to be precise, dated the 8th of June, 1995, and

13 please if you can look at 9 page, paragraph 9, item 2, line 5, from the

14 bottom of the English version contains the order of Karavelic, the

15 commander of the 1st Corps, which states:

16 "Prevent any attempt of crossing over to the aggressor's side

17 even with the use of fire-arms, not differentiating between soldiers and

18 civilians in this case."

19 If you look at document 4 -- D417 of a few days later, now issued

20 by commander of the 12th Division, Fikret Prevljak, which states on

21 page 11, line 5, from the top of the English version, and it states:

22 "Prevent the crossing of our fighters to the temporarily occupied

23 territory and the use of fire-arms for this purpose is allowed."

24 According to the commander this order refers to fighters.

25 According to the evidence it was acted pursuant to the order of Karavelic

Page 69

1 and Prevljak. In Exhibit D205 of the 7th of April, 1995, which is the

2 time-period of the indictment, it is stated:

3 "Last night, at 1930 hours, our fighters, from Loris, shot and

4 killed an elderly woman who wanted to cross to the other side." So this

5 is a civilian who was killed even before the previously cited orders and

6 this was obviously a pattern of behaviour.

7 According to Exhibit D216 of the 15th of October, 1994, it says:

8 "At 2015 hours, our guard at Palma noted an escapee who tried to

9 escape to the aggressor's side. The guard opened fire and injured the

10 person." In this exhibit either it is not stated that we're talking

11 about a soldier.

12 According to Exhibit D419 of the 6th of April, 1995, signed by

13 Karavelic himself, it is established that in the evening hours fire from

14 a fire-arm prevented an attempt of a person to cross into Grbavica. It

15 does not say that there was a soldier in question here. Only in

16 Exhibit D148 of the 14th of October it says that one soldier was fired at

17 who attempted to cross over to the side under the control of the VRS.

18 Now we're -- could you please specially pay attention to

19 Exhibit D66. This is a letter by Alija Izetbegovic sent to General Delic

20 of the 22nd of April, 1994, and it states, France -- he had visited the

21 French ambassador who had informed him about these events and he says

22 that France is angry because of the killing of one of its soldiers in

23 Dobrinja. Delic -- the ambassador informs Delic that the military

24 expertise indicates that the soldier was shot from positions of the

25 Bosnian army and that the French were not permitted to conduct an

Page 70

1 investigation or to have access to all the positions from which the

2 soldier could have been shot. In the document it is stated that the

3 French ambassador informed Izetbegovic that he had evidence that out of

4 the 24 soldiers who were killed from their UN contingent, over one-half

5 of those killings were committed by the B&H army.

6 Exhibit D67 establishes that one UNPROFOR officer, after an

7 investigation was conducted, established that a tram in the centre of

8 town was fired at from the Muslim side and he specifies precisely the

9 building from which fire was opened. We indicated about this in our

10 Appeals Brief that in a large number of cases, according to witnesses,

11 citizens of Sarajevo were fired upon from positions of the Army of

12 Bosnia and Herzegovina. There is even an exhibit from the

13 3rd of November, 1994, about fire opened at the Bosnian Prime Minister,

14 Mr. Salajdzic, from positions under control of the Army of Bosnia and

15 Herzegovina. Such fire by the B&H army on their own citizens was

16 confirmed by witnesses Harland and Nicolai before the Trial Chamber, and

17 this is cited in paragraphs 104 to 115 of the Appeal. Such fire from

18 infantry weapons at a section of the town under control of the B&H army

19 and the killing of their soldiers, the soldiers of UNPROFOR and

20 civilians, the Trial Chamber in paragraph 774 considers among specific

21 cases of sniper action by the B&H army against the Bosnian Serbs.

22 I apologise for speeding a little bit. And perhaps if any of

23 those 40.000 citizens of Sarajevo, the Serbs under the control of the

24 B&H army, tried to leave that area they could have been among them. This

25 is a complete distortion of the facts. The evidence indicates that the

Page 71

1 B&H army did not permit anyone to leave town from parts that were under

2 their control and such -- any such attempt was prevented by fire. These

3 were not rumours circulated by members of the SRK, but these were facts

4 established by indisputable evidence, documents of the B&H army

5 themselves. This indicates that many victims in the areas under control

6 of the B&H army in Sarajevo were casualties of fire by that same army.

7 And the victims were always ascribed to the SRK.

8 The Prosecutor began their case with the case of little

9 Nermin Divovic as the most drastic crime committed by Dragomir Milosevic.

10 What does the evidence actually establish? Among other things, the

11 autopsy findings that we had at our disposal were only about that case

12 and indicate that he was hit by a shot that came from the B&H territory.

13 Of course we dealt with that in paragraphs 184 to 224 of the appeal. We

14 allow you to assess that. There is only one piece of evidence about this

15 in the case of this infant and it indicates that it was not one bullet

16 that killed two people, but we're talking about two bullets that killed

17 that person. We deal with this in specific paragraphs of our appeal in

18 more detail in order to prove precisely that this child was not killed by

19 a bullet fired from positions of the Army of Republika Srpska, but we're

20 leaving this for you to evaluate.

21 The evidence that we indicate seems to -- present seems to

22 indicate beyond doubt that the B&H army fired at their own people, and

23 these are not rumours. Well, if we were going to deal with the case of

24 Markale and the television building case and some other incidents, I

25 would be able to indicate to what an extent this all would remain in the

Page 72

1 sphere of not being established beyond reasonable doubt. Considerable

2 doubts remain and I would need several days to prove something like that,

3 and that is not possible here in this case.

4 In any event, for artillery fire it is not true that the most

5 that can be concluded on the basis of the facts presented was that there

6 were rumours primarily launched by the SRK that the B&H army shelled

7 civilians who lived in the territory of town under the army B&H control

8 and staged incidents in order to secure sympathy of the outside world.

9 So that would seem to indicate that there was not one single victim,

10 either among civilians or among soldiers of the B&H army or the UNPROFOR

11 in the area of town under control of the B&H and that that any person had

12 been killed as a result of artillery fire by the B&H army. However, in

13 the judgement the actual Trial Chamber in paragraphs 433 and 437

14 establishes the following.

15 Paragraph 433: General Fraser, Brigadier-General Fraser

16 remembers that on the 18th and 19th of September, 1995, in an interval of

17 40 minutes, two attacks were carried out by -- on the town by mortars.

18 In each incident shells had fallen on exactly the same part of town and

19 the number of civil -- casualties was twice as large. It indicates that

20 projectiles arrived from two different directions, one from the SRK-held

21 territory and the second rounds came from Bosnian Muslim-held territory.

22 Paragraph 437, it says, and this is again in reference to rumours

23 only and insinuations. The French said that they had seen soldiers of

24 the B&H army filming a staged attack on children in which no one was

25 actually hurt for broadcast on television. And then David Harland says

Page 73

1 this: Bosnian Muslims in Sarajevo, in reference to the media when it was

2 desired to create media events, they had to create these conditions for

3 that to happen and this is how some of these shootings came about.

4 The judgement itself indicates that these were not just rumours

5 circulated by the SRK on artillery actions by the B&H army on their own

6 positions and that events of the 18th and 19th of September, which fall

7 into the indictment period, indicate that the B&H army, firing on their

8 own positions, doubled the number of casualties. This double number of

9 casualties, to whom should they be ascribed? Either to the shelling of

10 the Bosnian army that fired on their own positions or something else.

11 Another example that we refer to indicates that the B&H army was

12 able to stage incidents for media purposes. In paragraph 185 of the

13 judgement witnesses W-138 and 137 established that there were cases when

14 evidence on the scene was altered or even placed. Another witness, a

15 high-ranking officer of UNPROFOR recalled that shelling incidents when UN

16 investigators were not allowed access for hours to the scene of the

17 incident, and once they did, they found evidence that could not have been

18 a consequence of fire by the Serbs. This witness said that the

19 possibility of manipulation had to be taken into account. So in all of

20 these cases these were not rumours and insinuations but specific evidence

21 about the staging, manipulation, and killings by B&H army. In other

22 words, there were victims that had nothing to do with fire by the SRK but

23 they were always ascribed to the SRK. We have two photographs, D370 and

24 371. They show two victims of shelling that allegedly struck the Markale

25 market on the 28th of August, 1995. The Trial Chamber accepted

Page 74

1 explanation by expert of Milosevic that fragments were not the only means

2 that can kill a man at the site of an explosion, and we agree. So thus,

3 on the list of casualties of Markale, one victim was a victim of shot

4 fired from a -- buck shot fired from a hunting rifle and another victim

5 was killed by a rifle bullet even though we're talking about a shelling

6 incident here. This is only possible if there is manipulation with the

7 casualties in the way explained by the top-ranking officer of UNPROFOR.

8 These photographs that we're talking about, it is possible - and

9 I have a lot of experience in these cases, I've handled similar cases, so

10 only if there is manipulation with the victims.

11 I would like to finish, Your Honours, before the break. If I am

12 permitted I would like to say a few words about an event of which

13 Dragomir Milosevic was acquitted. This is the water line. Why he was

14 acquitted. The judgement constantly refers to shooting of the

15 waterlines, parks, and so on, but they did not manage to prove one single

16 incident. This only one incident about the waterline he was acquitted

17 of. Am I allowed to say a few more words about the television building

18 and Markale, and I believe that I am sticking to the schedule.

19 JUDGE POCAR: Mr. Tapuskovic, I believe we have to make the break

20 also for the interpreters and for the tapes. So I believe we break now

21 and we reconvene at 11.15 for the continuation of the hearing.

22 --- Recess taken at 10.47 a.m.

23 --- On resuming at 11.16 a.m.

24 JUDGE POCAR: We resume the hearing and we will give the floor to

25 the Defence to complete their submissions until 11.45. May I urge the

Page 75

1 Defence to take into account the questions that have been put by the

2 Appeals Chamber to the parties and answer them.

3 You have the floor.

4 MR. TAPUSKOVIC: [Interpretation] Thank you, Mr. President, and

5 Your Honours. I will do my best to address several matters in a couple

6 of minutes if possible at all.

7 When mentioning victims I cannot but mention document D415. When

8 we're talking about victims in the territory of Sarajevo controlled by

9 the ABiH between 1992 and the end of the war, how are we to treat the

10 15 individuals referred to in the special brief of the security

11 administration of the staff of the Supreme Command of the ABiH? And

12 that's precisely the exhibit I mentioned. When referring to victims, the

13 Trial Chamber speaks of a figure ranging between 1800 and 2.000 for the

14 entire period of the war between 1992 and 1995. However, the Prosecution

15 never adduced any evidence as to the number of victims relevant to the

16 indictment period.

17 This particular document I refer to indicates, and that's D415,

18 that there were most heinous crimes committed in Sarajevo. A body -- or,

19 rather, some 15 bodies had been exhumed in this context, and these were

20 thousands of victims whose deaths will be a matter of prosecution before

21 some of the courts in the territory of the former Yugoslavia. And

22 perhaps these 15 victims referred to in this special brief will be among

23 them.

24 A moment ago I mentioned artillery fire. This had to do with the

25 events of the 18th of June, 1995, and that's the Simon Bolivar school

Page 76

1 incident. Accused, Dragomir Milosevic, was acquitted in respect of that

2 incident. However, what the matter involved was that - and this is quite

3 important - not a single shrapnel was found at the crime scene. And

4 according to what the police established, there was several victims. The

5 Trial Chamber accepted the explanation whereby the shrapnel disappeared

6 in the air or were blow away. But then how did it come that the victims

7 who were on the ground perished from shrapnel?

8 As for the TV building, in that incident, at the very start of

9 the trial a very serious piece of evidence was presented to the effect

10 that the aerial bombs had not flown in only from the area under the

11 control of the ABiH, but that the ABiH army had such bombs. I'm

12 referring you to D103 where UNPROFOR representatives who were in the area

13 throughout the period themselves testified that the aerial bombs had been

14 fired from the ABiH-held territory. The Trial Chamber invested a great

15 deal of effort to disprove the document even though the UNPROFOR

16 representatives who gave a statement in relation to this stood by what

17 they had said. It has not been established beyond reasonable doubt that

18 the events surrounding the TV building happened as they were described in

19 the judgement, in other words, that the fire came from the VRS-held

20 territory, since the ABiH had in possession that sort of weaponry as

21 well.

22 A word about the Markale incident. We dealt with the matter in

23 our Appeals Brief at great length, but what I wish to say now is that the

24 Trial Chamber found that there were a great many disputable issues in

25 relation to the incident. Despite that, the Trial Chamber inferred the

Page 77

1 conclusions that it did, even though the radars did not detect the shell,

2 even though it was found that the damage that was inflicted could not

3 have been inflicted by one shell only. According to paragraph 767,

4 12 shells had landed into a wedding party in front of a church and only

5 one individual was injured, and 12 shells had landed. Here only one

6 shell caused the death of 40 persons -- 50 persons. We led evidence to

7 the effect that the explosion came about in static conditions.

8 According to documents D10, D85, D118, and D186, these are

9 confidential documents of the UN, the charge was very questionable. In

10 Markale I, it was not enough to take care of the azimuth and angle of

11 descent. The charge should have been taken into consideration as well,

12 because without having established the charge of the shell, the distance

13 that the shell flew could not have been established, and in fact the

14 distance was not established. It was a static explosion and not a single

15 piece of evidence led to this day established the distance from which the

16 shell was fired.

17 I may have a few points to make after my learned friends'

18 submission. What I wish to state here and now is that it was not

19 established beyond reasonable doubt that the area of Sarajevo was a

20 civilian area. There is a plethora of evidence indicating that it could

21 not have been the only and absolutely the only reasonable conclusion on

22 the one hand, and on the other, on the issue of civilian victims who

23 perished the way I described and the status of these victims, I can say

24 no more at this point. But if one element, a required element for the

25 establishment of this crime has not been established, namely, that this

Page 78

1 area of town was a civilian area, then the conviction against my client

2 on this score cannot stand.

3 Thank you.

4 MS. ISAILOVIC: [Interpretation] Mr. President, Madam Judge,

5 Your Honours, I'm now going to address you. I can hear something in my

6 headphones, very bad, very disturbing. I need some time to arrange my

7 documents.

8 You addressed in your order four very specific issues. Allow me

9 not to follow the order you took them in because I'm first going to

10 address the first issue, then the third and the fourth, and

11 Mr. Tapuskovic will provide you with some arguments regarding the second

12 question you raised.

13 As to the first issue, as we understood it you want us to say

14 more about the elements of terror or, as was done by the Appeals Chamber

15 in the Galic case, the only known -- or case law known to the Defence in

16 this Tribunal regarding this crime you mentioned acts or threats of

17 violence whose primary purpose is to spread terror among the civilian

18 population. The Trial Chamber in the instant case - but I do not have a

19 French translation of the trial judgement which is somehow regrettable

20 because we were working in French. Furthermore, it is one of the

21 official languages in this Tribunal. But the Trial Chamber mentioned

22 terror. In French it's "terrorisation." This is therefore the term we

23 used in our Appeal Brief.

24 Regarding the elements of this crime, let me first of all express

25 our amazement, surprise, given the order followed by the Trial Chamber in

Page 79

1 their trial judgement now under appeal. Towards the end of the judgement

2 it is a very muddled way regarding the way the elements for the crime are

3 considered because there are two elements for the charges. First of all,

4 there is a section III (A), count of terror. Thereafter, they follow the

5 orders 1, 2, 3 in numbers, and then it is surprising to have under

6 "Terror," murder, inhumane acts, and then later on the trial judgement

7 speaks of the individual criminal liability of the accused.

8 All this was very difficult to understand, to find the right

9 position, to understand the Trial Chamber's reasoning. But that was our

10 job and we wanted to provide you with the way we understand the Galic

11 case law, which is, in our view, in keeping with what you have done. Let

12 me quote -- then we gave further details in our Appeal Brief but we took

13 paragraph 0104 [as interpreted] of the Galic appeal judgement that told

14 us which were the elements that constituted the offence, but you also

15 have a footnote 351 in the Galic judgement and it shows clearly what your

16 position was regarding the charge of attacks on civilians in relation to

17 the alleged crime of terror. "Terrorisation" in French, to make it

18 short.

19 Indeed, in footnote 351 under paragraph 110, let me quote part of

20 it:

21 "Terror is a crime that encompasses attacks on civilians,

22 therefore this part of the judgement applies mutatis mutandis to the

23 finding of guilt by the Trial Chamber -- by the Appeals Chamber against

24 Galic for threats of violence, the primary purpose of which is to spread

25 terror among the civilian population."

Page 80

1 The Defence kept in line with your Galic jurisprudence, and this

2 is the way we analysed the alleged crime of terror; in other words, we

3 took the material element, the actus reus, which is expounded in detail

4 in our brief, and acts or threats of violence directed against the

5 civilian population or against civilians not taking part directly in

6 hostilities. So further to this, further to this analysis, afterwards we

7 analysed the evidence and we were bound to look again at this same -- or

8 in -- at the evidence that the Trial Chamber totally disregarded or used

9 for a totally different purpose legally speaking or carried out a legal

10 analysis that is, in our view, totally different from what you said in

11 the Galic appeal judgement. So we took up the evidence, analysed it, and

12 used all the relevant indicia in order to demonstrate specific facts

13 which are indispensable if one is to enter a conviction for the crime of

14 terror.

15 Regarding the mental element of the offence, we took the parts

16 that we found in your jurisprudence as well as in the authorities that

17 are regularly used by this Tribunal. And it can be said that the crime

18 of terror and for it to be constituted to be made out and for its

19 material element to be made out you have to prove not only the intent to

20 carry out attacks against civilians not taking part in hostilities but

21 also to show a specific intent, a specific intent, the primary purpose of

22 which is within attacks on civilians to spread terror among civilians or

23 among the civilian population as a whole.

24 So this is the way we interpreted your jurisprudence, especially

25 based on the mens rea, the mental element of the offence. We considered

Page 81

1 that the approach of the Trial Chamber -- you see during closing

2 arguments questions were put to the parties. The parties were invited to

3 assess the evidence in the case file, the evidence on the record, whilst

4 this should be the primary job of the Trial Chamber, and the parties were

5 asked to give a definition of "terror." One member of the Prosecution

6 team was asked to define terror and it must be also said that this

7 definition - and this is said by us in our Appeal Brief - this definition

8 encompasses an assessment of the evidence indeed. The Prosecution speaks

9 of terror as felt by the civilian population. Therefore, the Prosecution

10 assesses the evidence, although they're no psychologists and they did not

11 call an expert on the matter.

12 And thereafter, the Trial Chamber decided to apply the

13 Prosecution's opinion in order to establish Dragomir Milosevic's intent

14 to spread terror among the civilian population. We do not agree with

15 such an approach, not at all.

16 Furthermore, we received the Prosecution's response and it was

17 very upsetting because it disturbed all the knowledge Mr. Tapuskovic has.

18 He has 45 years of experience. I've been a lawyer for a little more than

19 20 years and it really disturbed and contradicted our knowledge of

20 criminal law. In paragraph 65 of our -- of the Prosecution's Response

21 Brief, the Prosecution speaks to the issue of the mens rea and says:

22 [In English] "In fact since it is reasonable to infer that

23 persons intend the consequences of their acts, the Chamber correctly

24 found that the actual infliction of terror could serve as evidence of the

25 intent to terrorise."

Page 82

1 [Interpretation] I don't know whether this disturbs you as well,

2 but for me, that was the end of criminal law and of the question of

3 evidentiary rules in criminal law because if the consequence is meant by

4 the author, he has the -- the accused has to defend against the fact that

5 he did not have this intent. So this is reversing the entire philosophy

6 of criminal law and this is equally reversing the jurisprudence

7 established in this Tribunal.

8 As far as I'm concerned regarding the elements of the crime, I

9 have no further observations. You may have questions right away; if not,

10 I can move to the second issue.

11 JUDGE POCAR: [Interpretation] Don't forget that you just have

12 five minutes left.

13 MS. ISAILOVIC: [Interpretation] Very well. I'll now turn to the

14 second issue -- rather, third in the order of the Scheduling Order. It

15 has to do with the use of the elements as aggravating factors. Here

16 again it's quite obvious to us. These are basic predicates of criminal

17 law. You cannot use a situation -- I may turn to the judgement -- all

18 the circumstances that were such that he was or that he is there where he

19 is now, yes, he was a commander, and based on the indictment and the

20 trial judgement he failed to comply with laws and customs of war. But

21 all these are threshold standards -- I mean, requirements for him to be

22 an accused in a trial proceedings. You cannot use the same circumstances

23 in order to say, Of course this is a further aggravating factor because

24 he was a commander, he commanded, he failed to comply with the laws and

25 customs of war. So this was impermissible in our view. This is a purely

Page 83

1 legal point of view. And I'm sure that you will rule on this matter.

2 Now, as to the fourth question, which is more a matter of fact,

3 you asked the parties to supply you with evidence that is likely to show

4 that with regard to the direction established by the Trial Chamber as the

5 origin of fire, that there were positions of the ABiH.

6 The first document I'd like to speak about has been mentioned in

7 our Appeal Brief, D102. It is a map that was marked by a witness Ekrem

8 Suljevic. He was a police officer in charge of the investigation into

9 the matter, and he marked with an arrow the direction. And this was

10 accepted by the Trial Chamber in their factual findings. So at our

11 request, during cross-examination, he marked the positions around the

12 arrow. And this shows that Colina Kapa is close, is in the vicinity as

13 well, and we claimed that there were ABiH positions on Colina Kapa.

14 D110, D417, and these are exhibits I'd like to show you and I

15 also would like to show you some testimony. I couldn't find all the

16 witnesses, but there was W-12, transcript pages 3039, 3042, 3065. Then

17 we had witness Huso Palo, transcript page 1545 to 1546. Witness

18 Thomas Knustad, transcript page 2025, 2026. Witness Vahid Karavelic,

19 transcript pages 4228. Witness Zoran Trapara, transcript page 7361 and

20 page 7362. And lastly, Predrag Trapara, transcript page 7373 and 7374.

21 Thank you very much.

22 JUDGE POCAR: Thank you. Well, your time has expired. I can

23 give you five minutes to end your pleadings.

24 MR. TAPUSKOVIC: [Interpretation] Thank you. Thank you,

25 Your Honour. I believe that the time will be enough because it remains

Page 84

1 for us to answer another question of yours which regards the alibi. In

2 that respect I believe that I can be brief and I would like to thank you

3 for the additional time that you've just given me.

4 In paragraph 155 we state that the Trial Chamber, in their

5 conclusions under 975 and 976, prevents the application of the general

6 principle of law which envisages that a complete inability of action

7 relieves the person of criminal responsibility. It seems that such an

8 impossibility, according to this Trial Chamber, in order for the person

9 to be acquitted has to last a certain period of time. This is what was

10 stated in paragraph 155 of our appeal. It seems that we are here on the

11 ground of a complete [indiscernible] of the significance of an alibi. If

12 for -- the existence of an alibi is corroborated by everything that was

13 established beyond any reasonable doubt because in paragraph 10831 [as

14 interpreted] it is stated that witnesses have confirmed that the accused

15 was absent while he was in Belgrade and the command duty was taken over

16 by Colonel Sladoje, the Chief of Staff of the SRK. And then in footnotes

17 which you requested we mentioned documents 892, 908, document 733, 732,

18 and another one 734. These are all orders which were signed and issued

19 by Cedo Sladoje in view of the fact that this was not just a simple

20 absence from the scene. The gentleman was sick, undergoing a surgery in

21 a different state, so it was proven beyond any reasonable doubt that he

22 was physically impossible to perform the duties. In such a situation,

23 the Trial Chamber arrived at the conclusion that in practical terms he

24 did not even have to be there in view of what was happening. And then it

25 says in paragraph 976:

Page 85

1 "The Trial Chamber notes that the absence of the accused from

2 Sarajevo did not last very long."

3 How long it should have lasted? He was absent for five weeks and

4 then returned in Sarajevo. In that respect I have to emphasize something

5 else. From the beginning of September, after the NATO bombing, until the

6 very end of September and then throughout October and November, those are

7 the periods that the Trial Chamber did not evaluate. At that time there

8 was no conflict among the separation line. For three months there was no

9 single incident as a representative example of the campaign. He returned

10 to the scene and together we -- with UNPROFOR he did everything possible

11 to regulate things on the ground.

12 I don't understand how anybody can issue a new legal position

13 about an alibi. An alibi can cover one, two, or three days, and how can

14 somebody say that since Markale happened during that period of time while

15 he was in hospital, completely absent from the scene. Does this mean

16 that three months, for example, would be enough? What standards are

17 those? These are absolutely new standards that annul the traditional

18 institute of criminal law as is practiced here.

19 In addition to all of these documents, Your Honours, once we

20 received your instructions for the appeal, on the 13th of July we tried

21 once again to write a letter to some organs in the state. And from the

22 state we managed --

23 MR. ROGERS: Your Honour --

24 MR. TAPUSKOVIC: [Interpretation] -- over the period of three or

25 four days --

Page 86

1 MR. ROGERS: I'm sorry to rise at this point. I'm conscious of

2 what it is that my learned friend is wishing to refer to. He showed to

3 me a document just before Your Honours came back into court after the

4 midmorning break, a document I hadn't seen previously, and I understand

5 that he would now wish to seek to develop his submissions along the lines

6 of this document which is not presently in evidence, is not in the

7 record, and would need to be the subject of a Rule 115 application if he

8 were to wish to proceed to refer to it or to make submissions upon it.

9 As he hasn't yet done that - and I make no observations as to why that

10 may be, that will be the subject of the application no doubt - Your

11 Honours should not at this stage hear any more about it until you've

12 determined whether it should be admitted. And if it is, what further

13 steps should be taken in relation to it. So I object to him continuing

14 to refer to any further reference to this document or its contents.

15 JUDGE POCAR: I didn't see Mr. Tapuskovic making any reference to

16 the document up to now.

17 MR. ROGERS: No, Your Honour, it was just about to come.

18 JUDGE POCAR: Well, it was about to come so it's speculation

19 you're making.

20 So please, Mr. Tapuskovic.

21 MR. TAPUSKOVIC: [Interpretation] Yes, Your Honour, my learned

22 friend is right. If you start discussing an issue then maybe we will

23 even have to go into private session. It is true that I'm going to talk

24 about a document that we want to tender, although this is beyond all

25 dead-lines and I know that this is a problematic issue. I believe that

Page 87

1 this document is maybe not even that important in the light of the

2 documents that have already been admitted, but still it is significant

3 and you should consider it because it might be of some importance for the

4 issue of --

5 JUDGE POCAR: Well, Mr. Tapuskovic, if that is really the intent

6 to talk of a document which has not been tendered, you are not allowed to

7 do that.

8 MR. TAPUSKOVIC: [Interpretation] Your Honour, that's right.

9 However, I am going to submit a request because we received the document

10 only a couple of days ago. And the according to the spirit of Rule 115,

11 despite all the dead-lines expired a document might be taken into

12 consideration by the Appeals Chamber, because to a certain extent it does

13 have a bear --

14 JUDGE POCAR: Mr. Tapuskovic, if you got the document a couple of

15 days ago, why didn't you motion the Chamber to have the document admitted

16 two days ago?

17 MR. TAPUSKOVIC: [Interpretation] Your Honours, we received it

18 only a few days ago, but there is a formal omission. It was only

19 yesterday that we received its complete version and there was no way for

20 us to present it to the Trial Chamber before this hearing. I am not

21 saying that I should enter the --

22 JUDGE POCAR: [Previous translation continues] ... beginning of

23 the hearing?

24 MR. TAPUSKOVIC: [Interpretation] It is an omission on my part, I

25 agree, but I believe that it's never late, or rather, it's better -- but

Page 88

1 I'm starting from the facts that the Trial Chamber has established as

2 being proven beyond reasonable doubt --

3 JUDGE POCAR: [Microphone not activated]

4 THE INTERPRETER: Microphone for the Presiding Judge, please.

5 JUDGE POCAR: [Microphone not activated]

6 THE INTERPRETER: Microphone for the Presiding Judge.

7 JUDGE POCAR: If you want to, you still have the possibility of

8 submitting a motion in writing during the break, for instance.

9 MR. TAPUSKOVIC: [Interpretation] Thank you.

10 JUDGE POCAR: I urge you to conclude because your time has

11 expired. You had five minutes more than you were allowed.

12 MR. TAPUSKOVIC: [Interpretation] I thank you, Your Honour. This

13 brings my point to an end, and at this point in time I don't have

14 anything else to say -- to add to what has been said already.

15 JUDGE POCAR: I thank you -- Judge Guney.

16 JUDGE GUNEY: [Interpretation] Mr. Tapuskovic, I would like to

17 seek some clarification by asking you a question. Just before the

18 morning break in your arguments you said that it was the ABiH that fired

19 at its own population. You gave two reasons: To gain the sympathy of

20 the media, you said, or to highlight or to double the number of

21 casualties. Would you be so kind as to expand on this. Was the purpose

22 sought by Bosnia and Herzegovina for them to fire at their own

23 population? Thank you.

24 [Defence counsel confer]

25 MR. TAPUSKOVIC: [Interpretation] Your Honour, yes, I understand

Page 89

1 your question. I cannot talk about the intentions of the Army of Bosnia

2 and Herzegovina. We gave you some examples, showing that the BiH army,

3 according to the findings of the Trial Chamber itself, manipulated the

4 bodies and artillery fire. I've already stated that. I don't -- I'm not

5 in a position to tell you what the BiH army intended. However, there is

6 indisputable evidence to the effect that there were two orders, one dated

7 8 June 1995 and another one issued on the 11th of June. The first one

8 was signed by the commander of the 1st Corps, who says that nobody must

9 cross over to the opposing side and that everybody should be shot at if

10 they even try to leave Sarajevo. And the second repeats the same. And I

11 also gave you some documents which shows that the soldiers of the BiH

12 army opened fire.

13 These are facts. Your Honours, these are facts that show that

14 such things happened. What their intention was, why they did what they

15 did, we heard the reference to a lot of things, but I don't want to

16 speculate. Before you I can only state the facts and these were the

17 facts which I pointed to by documents of the BiH army. What the

18 intention was is a different story. There is a theory which says that

19 the Army of Republika Srpska opened fire at everybody, but this was not

20 proven by any piece of evidence. And we had documents showing that there

21 was a blanket order for nobody to be allowed to leave Sarajevo alive on

22 the one hand and we have some particular documents that show it. I've

23 presented them. And as for the event I can't speculate. I could, but

24 I'm not such a person or such a lawyer who manipulates with speculations.

25 Whatever I said was said based on the facts.

Page 90

1 JUDGE GUNEY: [Previous translation continues] ...

2 JUDGE POCAR: I thank you.

3 I understand this concludes the submission of the Defence.

4 I turn to the Prosecution. And perhaps you have -- well, just an

5 hour to go before the lunch break.

6 MS. GOY: Thank you, Your Honours.

7 Good morning, Your Honours. The Prosecution will respond to the

8 Defence appeal in the following way. I will first give an overview over

9 the case and the Prosecution's response. And in that context I will

10 address Your Honours' questions, number 2 and 3 contained in the addendum

11 to the Scheduling Order. My colleague Francois Boudreault will then

12 address Your Honours on question number 1 and our response to

13 Dragomir Milosevic's ground number 1. My colleague Matteo Costi will

14 conclude the Prosecution's submission by addressing ground 8,

15 subground 2, the shelling of the Bascarsija Flea Market, and in that

16 context, he will address Your Honours' question number 4.

17 With regard to the rest of our submissions, we rely on our brief

18 but are available to answer any additional questions Your Honours might

19 have.

20 The Trial Chamber properly convicted Dragomir Milosevic of the

21 crimes of terror and of --

22 THE INTERPRETER: Could you please switch off other unnecessary

23 microphones in the courtroom.

24 MS. GOY: Thank you.

25 The Chamber properly convicted Dragomir Milosevic for the crime

Page 91

1 of terror and for murder and other inhumane acts as crimes against

2 humanity. From August 1994 to November 1995, Major-General

3 Dragomir Milosevic was the commander of the Sarajevo Romanija Corps, the

4 SRK. And as commander of the SRK, he planned and ordered a campaign of

5 shelling and sniping against the civilian population of Sarajevo. He

6 willingly continued what had started under his predecessor Galic in 1992.

7 Milosevic's troops shelled and sniped at the trapped civilian population

8 over 14 months. As a result, many civilians were killed and injured

9 mentally and physically. Milosevic intended to terrorise the civilian

10 population and he achieved his goal. In the words of the Trial Chamber:

11 "The inability to escape from this trap of horror ... left deep

12 and irremovable mental scars on the population as a whole." Trial

13 judgement 910.

14 Milosevic made sure that no one would ever feel safe anywhere in

15 Sarajevo. Milosevic's snipers deliberately shot at civilians. The

16 snipers targeted places where civilians gathered. They shot at a woman

17 in her bedroom, a women gathering firewood, a mother and her 7-year-old

18 son trying to cross the street, a girl on her way to school, passengers

19 on trams.

20 Milosevic also directed the SRK to shell civilians. Shelling was

21 aimed at civilian areas, markets, places where civilians queued for

22 water. The targeting of the civilians was deliberate. Mortars were

23 accurate weapons and their crews highly trained. But Milosevic did not

24 limit the shelling to mortars, but repeatedly made use of modified air

25 bombs, blatantly inaccurate weapons that could only be directed at

Page 92

1 general areas. It was impossible to predict where they would strike. An

2 air bomb is ordinarily dropped from an aeroplane, but here the SRK

3 attached rockets to air bombs and fired them from improvised systems such

4 as the back of trucks. Their use in Sarajevo shows that the intent was

5 to terrorise the civilian population, and the Trial Chamber found so at

6 paragraph 912.

7 Milosevic's legal and factual challenges to the trial judgement

8 should be dismissed in their entirety. His many factual challenges must

9 fail. Throughout his appeal, Milosevic repeatedly re-argues his trial

10 submissions. He points to evidence fully considered by the Trial Chamber

11 or offers merely a different reading of the evidence without showing that

12 the conclusion the Trial Chamber drew was one that no reasonable

13 Trial Chamber could reach. In the evidence this morning, Milosevic

14 mostly focused not on the specific incidents that the Trial Chamber was

15 dealing with.

16 As we have set out in our Response Brief, the Chamber carefully

17 considered the relevant evidence, paying particular attention to the

18 source of fire in each incidence. In the case of Nermin Divovic, which

19 was addressed this morning, the Trial Chamber addressed the question of

20 the alleged contradiction with regard to the source of the fire and

21 resolved then that Nermin was shot by a member of the SRK. And I refer

22 Your Honours more particularly to our Response Brief paragraphs 113

23 through 119. Where the Chamber was not convinced that the SRK was behind

24 the attacks it acquitted Milosevic, such in the last two sniping

25 incidents. In relation to sniping incidents, the Chamber always sought

Page 93

1 to identify the status of the victim and the context in which his or her

2 activity was carried out.

3 Concerning shelling, the Chamber was careful to assess the

4 circumstances of the attack, the type of weapon, and the status of the

5 victim. Further, when addressing the specific sniping and shelling

6 incidents and whether they were directed at civilians, the Chamber also

7 examined whether there were legitimate military targets in the vicinity.

8 Regarding the legal errors, Milosevic fails to show that the Chamber

9 erred to his detriment in its legal assessment on the elements of crime

10 and the standard of proof. And the Chamber carefully assessed

11 Milosevic's criminal responsibility for planning and ordering.

12 The Chamber correctly found that Milosevic planned and ordered a

13 campaign of shelling and sniping over 14 months. And I will come to

14 Your Honours' question number 2 in a moment, but before addressing the

15 question in detail, I would like to address how the Chamber concluded

16 that Milosevic was responsible for planning and ordering during this

17 period, including the five weeks when he was absent from Sarajevo.

18 The Chamber found in trial judgement 960 that Milosevic, the Main

19 Staff of the VRS, and Mladic were involved in devising the greater

20 strategy for Sarajevo. And Milosevic was able to implement this greater

21 strategy in a manner that he saw fit. The Chamber found that Milosevic

22 planned and ordered the campaign of shelling and sniping in Sarajevo.

23 The incidents of shelling and sniping fit in a pattern contemplated and

24 implemented by Milosevic, trial judgement 978. The Chamber found a

25 design, a consistency, a pattern that was only explicable on the basis of

Page 94

1 a system characterised by tight command and control, trial judgement 966.

2 And Milosevic did hold tight command over the SRK, trial

3 judgement 959.

4 The sniping occurred over an extended period of time in different

5 areas of Sarajevo under the control of different SRK brigades. This

6 shows that the operation of snipers was coordinated at the command level.

7 This led the Chamber to the only reasonable conclusion, that Milosevic

8 planned and ordered sniping activities, trial judgement 962.

9 The Chamber concluded that shelling of the civilian population

10 was also planned and ordered by Milosevic. He decided on the use of

11 mortars and on the methods of shelling, he requested air bombs, he

12 ordered the quantity of air bombs to be issued to the SRK brigades, he

13 ordered the construction of air-bomb launchers for modified air bombs,

14 and he stated in a report that air-bomb launchers are used throughout the

15 SRK zone of responsibility as required and as decided by the SRK

16 commander, that's trial judgement 963 and 964.

17 The Chamber further relied on planning and ordering of specific

18 incidents as evidence of the plan and ordering of the campaign of

19 shelling such as Milosevic's order regarding the shelling of Hrasnica on

20 the 7th of April, 1995, trial judgement 964. And in fact, the Chamber

21 found that Milosevic went beyond the general planning of the campaign of

22 shelling and sniping. He also took care of details. He was actively

23 engaged in a number of matters, trial judgement 959. He issued numerous

24 orders relating to training, equipment, and deployment of snipers, trial

25 judgement 962, and the Trial Chamber used that evidence to infer that he

Page 95

1 planned and ordered the sniper activity as such. Milosevic also issued a

2 number of orders relating directly to shelling incidents and I mentioned

3 already the order in relation to Hrasnica.

4 On 19 April 1995, Milosevic ordered all units to launching pads

5 and aerial bombs ready for firing on town, that's trial judgement 834.

6 On 16 May 1995, Milosevic ordered the Ilidza Brigade to prepare aerial

7 bomb launchers to be ready to fire at his command, with launchers being

8 roughly aimed at the airport, trial judgement 835. The general plan and

9 orders by Milosevic remained in place and continued to be implemented

10 during the time -- the five-week period from the beginning of August,

11 when he was absent from Sarajevo, trial judgement 977.

12 Therefore, the Chamber correctly found that he was liable for

13 planning and ordering during that period.

14 When analysing the period of his absence, the Chamber concluded

15 that the ongoing shelling fell squarely within the overall plan and

16 general orders given by Milosevic, 977. And the Chamber recalled that he

17 had full control over the SRK troops, trial judgement 975. It further

18 considered, in paragraphs 976 and 977, that the period of absence was not

19 very long, only five weeks, that it fell in the latter part of his tenure

20 as SRK commander, by then the shelling and sniping had already been going

21 on on his orders for about a year, and during his absence the shelling

22 and sniping continued in the same manner as before. The Chamber found

23 that before Milosevic had left for medical treatment there was an

24 increase in fighting due to ABiH offensives and Milosevic's response to

25 these offensives was shelling of civilian areas within the confrontation

Page 96

1 lines. And during his absence the shelling continued in the same manner,

2 trial judgement 977.

3 The Chamber correctly concluded that, in the words of the

4 Chamber, "his responsibilities had been taken over by the SRK Chief of

5 Staff Cedomir Sladoje" did not change his liability for planning and

6 ordering. And in the addendum to the Scheduling Orders, Your Honours

7 have asked us to point to evidence on the record concerning the nature of

8 the appointment and the mandate of Cedomir Sladoje during Milosevic's

9 absence.

10 During Milosevic's absence, Cedomir Sladoje, the deputy

11 commander, was in charge, was in the B/C/S terms "zastupa komandanta."

12 Although, to our knowledge, there is no document in evidence setting out

13 the appointment and mandate, the way he signed the orders during

14 Milosevic's absence confirms was with "zastupa komandanta." And the

15 English translations for these orders on the record is: "For commander,"

16 "in lieu of commander," "commander represented by." And I refer

17 Your Honours, for example, to the order of the 24th of August, 1995,

18 Exhibit P768, an order from the Sarajevo Romanija Corps issuing units

19 with air bombs; an order on the 7th of September, 1995, Exhibit P734, an

20 order in relation to the return of air bombs to Pretis; an order on the

21 7th of September, 1995, Exhibit P734, an order from the Sarajevo Romanija

22 Corps relating to further combat action. And I would like to refer Your

23 Honours to Exhibit P738, that is a letter Milosevic wrote to Mladic in

24 1996 and it's quoted in part in the trial judgement in paragraph 806, but

25 I would like to refer Your Honours to a different part of that letter, it

Page 97

1 is on page 3 of that letter and I quote:

2 "As soon as I was off for surgery at the VMA (military medical

3 academy) an order was written for one to become NS (Chief of Staff) but

4 it could not be done for me before that."

5 And the B/C/S version of that also refers to "zastupanje."

6 In relation to this word "zastupa komandanta," it was referred to

7 in a different context by Witness Gagovic, and he referred to it as

8 "stand-in commander"; that's transcript page 8699.

9 The Trial Chamber found in paragraph 959 that Milosevic was the

10 de jure commander of the SRK during the indictment period and the

11 Trial Chamber there does not make an exception for the period of his

12 absence.

13 Milosevic's absence was only temporary. The expectation was that

14 he would come back, and he did come back. And I refer Your Honours to

15 the evidence of Luka Dragicevic. Luka Dragicevic was the assistant

16 commander to Dragomir Milosevic from December 1994 onwards, in charge of

17 morale, religion, and legal issues. He was thus in a position to give

18 evidence about the circumstances of Milosevic's medical leave.

19 Dragicevic testified, on transcript page 3999, that they had

20 great difficulties to talk Milosevic into leaving for his eye treatment,

21 to have the problem with his eye resolved so that he could continue his

22 work.

23 As explained by Defence Witness Major Stevan Veljovic, during

24 Milosevic's absence his deputy, Cedomir Sladoje, was in charge. Major

25 Stevan Veljovic was an operations officer, that's trial judgement 466.

Page 98

1 He was the direct subordinate of Cedomir Sladoje, transcript page 5765.

2 Thus he could also speak about the relationship between Milosevic and

3 Sladoje. And when Veljovic was asked on transcript page 5843:

4 "And who was in charge of the corps when Dragomir Milosevic went

5 for treatment in Belgrade?"

6 Veljovic answered:

7 "His deputy, Colonel Cedomir Sladoje."

8 And the inference on the basis of the totality of the evidence

9 that Sladoje was instructed by Milosevic to continue the campaign of

10 sniping and shelling. This is consistent with the Chamber's conclusion

11 that the ongoing shelling and sniping fell within the overall plan and

12 general orders given by Milosevic. This brings me to the mandate of

13 Cedomir Sladoje.

14 Three factors linked to the inference that Milosevic instructed

15 Sladoje to continue the campaign of shelling and sniping. First,

16 Milosevic's style of leadership and his general attitude as the

17 commander. Second, the continuation of shelling and sniping in the same

18 manner. And third, Milosevic's reaction, or rather, lack of reaction on

19 his return.

20 First, Milosevic's leadership style of tight command supports the

21 conclusion that he discussed with Sladoje what to do during his absence

22 and instructed him to exercise the command to continue the campaign of

23 shelling and sniping. This is supported by Veljovic's testimony.

24 According to him, the two of them always coordinated the approach. Thus,

25 it was not being in charge in the sense that Sladoje could do whatever he

Page 99

1 saw fit, but rather how it was discussed with Milosevic. When Veljovic

2 was asked by the Prosecution on transcript page 5831:

3 "So it's probably fair to say that he was the alter ego of the

4 commander. They were very close to each other. Because if the commander

5 was away, was absent, if somebody [sic] happened to him, he has to be

6 able to take over at any time?"

7 Veljovic answered:

8 "Yes. And the two of them always coordinated the actions and how

9 the command and control was going to be performed."

10 Instructions by Milosevic are further supported by the fact that

11 he did not leave for the medical treatment on an emergency basis. He had

12 been wounded already in May and the treatment had been put off due to the

13 situation at the front. I refer Your Honours to trial judgement 829 and

14 the medical file of Dragomir Milosevic, that's Exhibit D340, page 4.

15 Instructions are also consistent with Milosevic's general

16 attitude towards his role as commander. This attitude was expressed in

17 the letter to Mladic I already mentioned that Milosevic sent in 1996, and

18 this part is quoted in trial judgement 806. Milosevic writes:

19 "I never stayed away from my troops a single day."

20 This attitude is also supported by the testimony of

21 Luka Dragicevic, who testified on transcript page 3999 that Milosevic

22 even cut his sick leave short.

23 Second, what in fact happened during Milosevic's absence is

24 further evidence that Milosevic instructed Sladoje to continue the

25 campaign of shelling and sniping.

Page 100

1 The Chamber found in judgement 977 that the shelling and sniping

2 continued in the same manner as before. More specifically, Milosevic's

3 response to the ABiH offensives in 1995, before he left, was to shell

4 civilian areas within the confrontation line. This finding is consistent

5 with the evidence of David Harland, that retaliation was principally

6 directed against civilians, trial judgement 757.

7 And as the alter ego of the commander, Sladoje must have been

8 intimately familiar with the strategy implemented by Milosevic. Further,

9 on 15 July 1995, thus before Milosevic left for medical treatment, he

10 requested the Main Staff of the VRS to approve the issuance of 200 air

11 bombs, trial judgement 822.

12 Having ordered 200 air bombs, the inferences that Milosevic

13 discussed with Sladoje, how they should be used, particularly in light of

14 his tight command. On 10 August 1995, thus shortly after Milosevic had

15 left, the SRK command with an order signed by the head of the artillery,

16 ordered the preparation for the manufacturing of air-bomb launchers,

17 that's Exhibit P731. And on 22 August, a modified air bomb was in fact

18 launched. The BITAS building was shelled with a modified air bomb, trial

19 judgement 668. And on 24 August 1995, Sladoje ordered issuing units with

20 air bombs, signing "zastupa komandanta," "for the commander,"

21 Exhibit P768. The shelling against civilians thus continued in the same

22 manner.

23 Third, further evidence that Sladoje acted on Milosevic's

24 instruction is the lack of Milosevic's reaction when he returned, and

25 this despite the fact that according to the evidence of Colonel

Page 101

1 Dragicevic and Major Veljovic, Milosevic would have been informed about

2 what happened during his absence on his return, trial judgement 832.

3 This evidence supports that Milosevic -- the evidence supports that

4 Milosevic never reported a violation of international humanitarian law to

5 the military prosecutors. Colonel Dragicevic testified that he never

6 learned or heard of any instances where the accused reported a violation

7 of IHL to the military prosecutor. And he also testified he would have

8 been informed about such a report, trial judgement 862.

9 In conclusion, the Trial Chamber reasonably concluded that it was

10 irrelevant for the criminal responsibility of Dragomir Milosevic for

11 planning and ordering that he was absent during five weeks from Sarajevo.

12 This concludes our answer on question 2, and unless Your Honours

13 have any question in this regard, I would turn to the answer to

14 question 3.

15 JUDGE POCAR: I assume we proceed.

16 MS. GOY: Thank you.

17 In its assessment of the gravity and aggravating factors, the

18 Chamber took relevant considerations into account without counting the

19 same factor twice. Rather, the Trial Chamber relied on different aspects

20 under gravity and aggravating factors. This, in short, is our answer to

21 Your Honours' third question which I will now address in more detail.

22 What can be considered under gravity was correctly stated by the

23 Trial Chamber in paragraph 989, referring inter alia to the Galic appeals

24 judgement, paragraph 409. There the Appeals Chamber said that the

25 inherent gravity of the crime, the criminal conduct of the accused, a

Page 102

1 consideration of the particular circumstances of the case, the crimes for

2 which the accused was convicted, and the form and degree of participation

3 form part of the assessment of the gravity. The Blaskic Appeals Chamber

4 in paragraph 683, also relied upon by the Milosevic Trial Chamber in

5 paragraph 990, further lists the consequences of the crimes for the

6 victims.

7 And in addressing the inherent gravity, the Milosevic

8 Trial Chamber relied precisely on those factors in paragraphs 991

9 through 994.

10 In paragraph 991, it addressed the mode of liability, planning

11 and ordering, that is, the form of participation; the types of crimes,

12 terror, murder, and other inhumane acts; the seriousness of their crimes

13 and their frequency, when it said all of these crimes are very serious

14 and were committed during a campaign of sniping and shelling over a

15 period of 14 months. Frequency is one of the factors which the Galic

16 appeals judgement in paragraph 410 confirmed as a valid consideration to

17 assess the gravity.

18 In paragraph 991, the Chamber further addressed the circumstances

19 of the case, the environment in which the civilians found themselves:

20 Trapped inside the city. And the Chamber took into account the effects

21 on the victims: Many were killed and seriously injured.

22 In paragraph 992, the Chamber focused on the particular gravity

23 of the crime of terror due to "an intent that is particularly indicative

24 of a disregard for human life and integrity."

25 It further addressed the immense suffering of the civilians

Page 103

1 during this period.

2 In paragraph 993, it properly considered the fact that terror had

3 been caused, the civilian population was actually terrorised, which is

4 not required as an element for the crime of terror. And the Chamber also

5 recognised that the suffering resulting from actual terrorisation is an

6 element of the crime of inhumane acts.

7 Paragraph 994 sums up the gravity by addressing the modes, the

8 types of crimes, their frequency, and the victims.

9 Turning to the aggravating factors. When addressing the

10 aggravating factors, the Chamber took into account different aspects than

11 what it had considered under gravity. Although in some instances the

12 Chamber used similar wording, the focus under aggravating factors and

13 gravity was on different issues. When addressing the aggravating

14 factors, the Chamber was mindful of the fact, and said so explicitly in

15 paragraph 995, that a factor that had already been taken into account

16 under gravity could not be additionally taken into account as an

17 aggravating factor.

18 Under aggravating factors the Chamber took into account

19 circumstances relevant to measure Milosevic's criminal responsibility,

20 factors which it was thus entitled to use as aggravating factors.

21 In paragraph 999, the Chamber took into account as an aggravating

22 factor: Milosevic's abuse of his high position of authority as corps

23 commander through systematic violations of IHL. The Chamber was mindful

24 that the superior position as such cannot be used as an aggravating

25 factor and it said so in footnote 3202, but the Chamber did not take into

Page 104

1 account the superior position as such, the authority to give orders, but

2 the abuse of it from a very high position in the VRS in a gross and

3 systematic way. And it is exactly this repeated breach of the public

4 duty from a very senior position that the Appeals Chamber in Galic in

5 paragraph 412 accepted as an aggravating factor for Galic, who, like

6 Dragomir Milosevic, was convicted for ordering terror through a campaign

7 of shelling and sniping.

8 The last sentence in paragraph 999 shows that it is the abuse of

9 this position as an aggravating feature counted here, not a second

10 counting of the modes, planning, and ordering or the violations of the

11 IHL. Rather, those are the ways in which Milosevic abused his position,

12 but the modes as such and the crimes as such had already been taken into

13 account under gravity in paragraph 991 and summarised in paragraph 994.

14 In paragraph 1.000, the Chamber considered the duration of the

15 campaign, Milosevic's willing continuation of it, and his very active

16 role in the commission as aggravating factors. The length of time during

17 which the crimes continued as well as the active and direct criminal

18 participation, if linked to a high-rank position of command, have been

19 accepted by the Blaskic appeals judgement in paragraph 686 as aggravating

20 factors, and were correctly listed by the Trial Chamber in this case in

21 paragraph 996 when describing the law on aggravating factors.

22 The reference under gravity in paragraph 991 to a period of

23 14 months is in the context of seriousness and frequency of the crimes

24 merely descriptive, not counting the duration as such. Further, 991

25 under gravity relates to the frequency of the crimes, whereas the focus

Page 105

1 in paragraph 1.000 is on the conduct of the accused.

2 In paragraph 1.001, the Chamber correctly considered the highly

3 inaccurate nature of the modified air bomb, coupled with the great

4 explosive power to be an aggravating feature. When the Chamber, in

5 paragraph 1.001, refers to the psychological effect of the modified air

6 bomb, it focuses on the effect of this weapon. This is a different

7 aspect from the reference to the immense suffering under gravity in

8 paragraph 992 when the Chamber refers to the overall effect of the

9 campaign of shelling and sniping.

10 In paragraph 1.001 under aggravating factors, it was the choice

11 of this weapon and its repeated use that the Chamber found to be

12 aggravating. Using a blatantly inaccurate weapon with great explosive

13 power is not an element of the crime of terror so that the Chamber did

14 not impermissibly count it twice.

15 In conclusion, the Chamber considered correctly the circumstances

16 under gravity and aggravating factors without counting the same factor

17 twice.

18 This ends our response to Your Honours' question number 3, and

19 unless Your Honours have questions, I would pass on to my colleague

20 Francois Boudreault.

21 JUDGE POCAR: Ms. Goy, there are no questions.

22 MS. GOY: Thank you very much.

23 JUDGE POCAR: So you can proceed as you wish.

24 MR. BOUDREAULT: Good afternoon, Your Honours. I will be

25 addressing question 1 of the addendum to the Scheduling Order. I will

Page 106

1 also address briefly the arguments raised by Milosevic this morning in

2 relation to grounds 1 of his appeal and show why they must be rejected.

3 Question 1 of the addendum to the Scheduling Order invites the

4 parties to elaborate on the elements of the crime of terror. The

5 Prosecution's position is that there are three elements. First, the acts

6 or threats of violence; second, the direct or indirect intent for these

7 acts or threats of violence; and third, the specific intent to spread

8 terror among the civilian population.

9 In the present case, the Trial Chamber also required a showing

10 that the acts or threats of violence caused death or serious injury to

11 body or health within the civilian population. This is at trial

12 judgement paragraph 875, 876, and 880.

13 We submit that this is an error. As I will show in a moment, the

14 Appeals Chamber did not endorse such a requirement in the Galic appeals

15 judgement. Before I turn to this, I would emphasize that the error of

16 the Trial Chamber does not affect the outcome here because the

17 Trial Chamber did, in fact, find that the SRK attack had resulted in

18 death and serious injury to civilians. This was a reasonable conclusion,

19 as we explain in paragraph 56 to 60 of our Response Brief.

20 Further, the fact that civilians were killed or injured as a

21 result of the SRK attacks actually reinforces the Trial Chamber's

22 conclusion that these attacks were directed against the civilian

23 population of Sarajevo and that the specific intent behind these attacks

24 was to spread terror among the civilian population.

25 I now turn to the Galic appeals judgement. Paragraph 102 of the

Page 107

1 Galic appeals judgement explains that the acts or threats of violence

2 constituting the actus reus of the crime of terror can comprise attacks

3 or threats of attacks against civilians, and that it may also include

4 indiscriminate or disproportionate attacks or threats thereof. But the

5 Appeals Chamber does not find that the acts or threats of violence must

6 result in death or serious injury to civilians, even though this was

7 clearly in question, as can be seen from the discussion preceding

8 paragraph 102.

9 At paragraph 100 of the Galic appeals judgement, the Appeals

10 Chamber notes that the Galic Trial Chamber had described the actus reus

11 of terror as "acts of violence ... causing death or serious injury to

12 body or health within the civilian population." However, the Appeals

13 Chamber does not endorse this requirement. At the end of paragraph 100,

14 the Appeals Chamber specifically notes that the Galic Trial Chamber did

15 not consider whether the actus reus of terror could consist only of

16 threats of violence or acts of violence not causing death or injury.

17 Paragraph 101 of the Galic appeals judgement then explains that

18 the analysis of the elements of the crime of terror must be based on the

19 definition of that crime in the Additional Protocols, that is:

20 "... acts or threats of violence, the primary purpose of which is

21 to spread terror among the civilian population."

22 The Appeals Chamber then discusses the actus reus of terror at

23 paragraph 102, which, as I just said, makes no mention of a result

24 requirement. The Appeals Chamber thus found that a showing of death or

25 serious injury to civilians is not required for the crime of terror.

Page 108

1 This is consistent with the fact that the primary concern with this crime

2 is the specific intent to spread terror, Galic appeals judgement,

3 paragraph 102 to 104.

4 Our learned colleagues referred this morning to footnote 351 of

5 the Galic appeals judgement, however, that footnote says nothing about

6 the elements of terror. It only provides an explanation as to why in the

7 specific case of Mr. Galic there are challenges to the findings with

8 respect to the counts of unlawful attacks on civilians. This

9 interpretation of the Galic appeals judgement is also shared by the

10 jurisprudence of the Special Court for Sierra Leone. The Appeals Chamber

11 and the Trial Chamber of the Special Court have all followed the Galic

12 appeal judgement on the actus reus of terror. None of them has required

13 proof that the acts or threats of violence constituting terror caused

14 death or serious injury to civilians. I would refer in particular to the

15 Fofana appeal judgement at paragraph 350 to 352, and to the Sesay trial

16 judgement at paragraph 117 and footnote 240.

17 Incidentally, the Special Court considers that attacks on

18 civilian objects could also constitute the actus reus of terror.

19 The Prosecution's position is thus that a conviction for terror

20 does not require a showing of civilian casualties. That is not to say

21 that any act or threat of violence can constitute the actus reus of

22 terror. The acts and threats of violence in question must be capable of

23 causing extreme fear in the targeted population. This is in accordance

24 with the third Tadic requirement that the violation must be serious. The

25 Appeals Chamber of the Special Court for Sierra Leone has also found so

Page 109

1 at paragraph 352 of the Fofana appeal judgement.

2 In the present case, the Trial Chamber thus erred in requiring

3 proof of death or serious injury for the crime of terror. As I

4 explained, however, this error does not affect the outcome here because

5 the Trial Chamber did reasonably find that the SRK attacks had resulted

6 in death or serious injury to the civilians.

7 This concludes our submissions in response to the first question.

8 I'm available to answer any questions you may have in this connection.

9 Then I will say a few words in response to Milosevic's arguments

10 this morning on ground 1. The Trial Chamber was well aware of

11 Milosevic's argument that there were military targets within Sarajevo,

12 but it reasonably found that the SRK attacks discussed in the judgement

13 were directed against civilians. Milosevic attempts to obfuscate these

14 findings by arguing that the SRK targeted military zone, but

15 international humanitarian law does not speak in terms of military zones.

16 What the law states is that civilians and civilians -- civilian objects

17 cannot be directly, indiscriminately, or disproportionately targeted.

18 This is a fundamental principle that applies in all circumstances. I

19 would refer you to Blaskic appeal judgement paragraph 109, Kordic appeal

20 judgement paragraph 54, and the Galic appeal judgement, paragraph 130.

21 The presence of military objectives in an area does not change

22 anything to this. This is confirmed by Article 51(5)(a) of Additional

23 Protocol I which prohibits an attack "which treats as a single military

24 objective a number of clearly separated and distinct military objectives

25 in a city, town, village, or other area containing a similar

Page 110

1 concentration of civilians or civilian objects."

2 So to come back to the question that was asked earlier by

3 Judge Meron, a civilian population can never become a military target.

4 Of course, civilians can be killed or injured as collateral and

5 proportional damage in relation to a lawful military attack, but they

6 cannot be directly or indiscriminately targeted.

7 Here the Trial Chamber was well aware that Sarajevo contained

8 military objectives and it considered all of Milosevic's arguments. It

9 dealt with the allegations that the ABiH occupied the elevations around

10 Sarajevo, it dealt with the allegations that the ABiH staged incident or

11 that it fired on its civilians. It also dealt with the arguments that

12 the Bosnian police was part of the armed forces of Bosnia and

13 Herzegovina, but it nevertheless found that in the specific incident,

14 civilians or the civilian population were directly or indiscriminately

15 target by the SRK. The civilian casualties were not simply a mistake or

16 collateral or proportional damage resulting from legitimate military

17 attacks.

18 Milosevic fails to address the specific findings of the

19 Trial Chamber and the evidence on which these findings are based. In

20 grounds 1 and 6 of his appeal he simply refers to general evidence that

21 there were military objectives in Sarajevo. This is insufficient to show

22 that the Trial Chamber was unreasonable in finding that the SRK targeted

23 civilians in the specific incident discussed in the judgement.

24 Grounds 1 and 6 should be rejected.

25 This would conclude our submission in response to ground 1 of

Page 111

1 Milosevic. As before, I'm available to answer any questions on this

2 ground or on grounds 2 to 4, 6, and 12 of Milosevic's appeal.

3 JUDGE POCAR: There is no question. You can proceed -- well,

4 depends on what follows. If it remains within the 15 minutes, the next

5 argument, we can take it now; if it's longer, we have to break now

6 inevitably.

7 MR. ROGERS: Your Honour, what I was going to suggest was that

8 Mr. Costi can deal with the question 4, Bascarsija Flea Market incident,

9 and then invite Your Honours to rise and if there are any other matters

10 we wish to take up, we'll take them up after the break. If we do take

11 anything up, I don't anticipate we'll be very long with it. So

12 Your Honours can be thinking of adjusting the schedule and truncating it.

13 JUDGE POCAR: I thank you. So perhaps Mr. Costi may take the

14 floor now.

15 MR. COSTI: Good morning, Your Honour. I will deal now with the

16 shelling of the Bascarsija Flea Market on the 22nd December 1994. I will

17 divide my submission in two parts. First I will answer Your Honours'

18 question. And second, I will briefly respond to the appellant's argument

19 that the Trial Chamber needed to determine the charges of the shell in

20 order to find beyond reasonable doubt that the origin of the fire was in

21 the SRK-held territories.

22 I will begin by answering Your Honours' question number 4, and

23 I quote:

24 "Discuss the evidence on the trial record, if any, that supports

25 or rebuts the allegation that the shells may have originated from the

Page 112

1 territory controlled by the ABiH in the same direction."

2 The short answer: There is no evidence on the record supporting

3 the allegation that the shells that hit the Bascarsija Flea Market on the

4 22nd December 1994 may have originated by the ABiH. The evidence we

5 heard this morning cited by my learned colleague from the Defence only

6 show that the source of the fire in the SRK-held territory was in the

7 same line of the ABiH territory, being a city under siege this is almost

8 always the situation.

9 The evidence on the record, actually, positively support and

10 rebut this allegation. The Defence assertion that the ABiH were

11 responsible for the shelling and sniping in Sarajevo was discussed and

12 rejected at trial. During trial the Defence questioned several witnesses

13 on the possibility that the ABiH troops were firing on their own people

14 to gain the sympathy of the international community. The Defence even

15 suggested that some of the attacks were staged.

16 Now, the Trial Chamber considered and rejected these allegations,

17 also in light of the exhibits and that were quoted this morning by the

18 Defence, and decided, if you let me quote, Your Honours, the trial

19 judgement at paragraph 795 that:

20 "In relation to the Defence allegation that the ABiH shelled

21 Bosnian Muslims living within the confrontation lines, the Trial Chamber

22 notes that it heard no such evidence. Instead, the Trial Chamber heard

23 evidence from a number of witnesses, including UN officials, that the

24 ABiH did not shell their own population. The Trial Chamber further notes

25 that the allegation about the ABiH staging the incidents for propaganda

Page 113

1 purposes or to gain sympathy was not supported by the evidence showing

2 that such cases actually occurred. The Trial Chamber finds that the most

3 that can be made of the evidence presented is that there were rumours

4 primarily from the SRK side."

5 So the Trial Chamber did find that the ABiH never fired on its

6 own people in Sarajevo.

7 Now, consistent with this finding, the Trial Chamber reasonably

8 concluded that the ABiH did not fire on its own people at the Bascarsija

9 Flea Market on the 22nd December 1994. In doing this, it relied upon the

10 specific evidence of the BiH police investigations and the testimony of

11 W-12.

12 Dealing first with the police investigation. The Trial Chamber

13 heard the testimonies of three police officers that participated to the

14 investigation. The police, under the supervision of an investigative

15 judge produced a 91-page investigative dossier, which is Exhibit D124,

16 and concluded that the shells were not fired by the ABiH but from the

17 south-east SRK's position on Mount Trebevic, and this is Exhibit D124 at

18 pages 1 and 3.

19 Now, the solid conclusion of the police is based in particular

20 upon two elements: First, the testimonies of 15 eye-witnesses, four of

21 them were specific in indicating that the shells came from Mount

22 Trebevic, Exhibit D124, pages 6, 7, 22, and 25. One of them who was

23 about 500 metres from Vidikovac when he witnessed the event, stated that

24 the shells were fired from Vidikovac on Mount Trebevic. Vidikovac was

25 the upper part of Mount Trebevic held by the SRK. The second element on

Page 114

1 which the police relied upon in its conclusion is the analysis of the

2 crater, the crater left by the shells. This indicated that the direction

3 of the shells was south-east 159 degrees, corresponding with the

4 direction of Mount Trebevic. And again I refer to Exhibit D124, P310,

5 P315, and P275, under seal, and I would also direct Your Honours'

6 attention to transcript page 3119.

7 The result of this analysis was confirmed by the independent

8 investigation of the United Nations Military Observers, the UNMO, at

9 Exhibit D101, page 2, and P833, page 6.

10 Moving now to Witness W-12. W-12 was a member of the ABiH, a

11 Bosnian soldier deployed on the south-east front line in Sarajevo. When

12 the shells were fired he was on the slope of Mount Trebevic in the area

13 of Brajkovac, near the confrontation line. He was walking with five

14 other persons towards the ABiH positions. On his right, below in the

15 valley, was Bascarsija, the old town of Sarajevo. On his left, above

16 him, was Vidikovac, on the upper part of Mount Trebevic where the SRK's

17 position were. He heard the explosion of the shell being fired. And in

18 essence, he stated that the shells were fired from Vidikovac and he was

19 sure they were not fired by the ABiH because the highest ABiH positions

20 were much lower than the source of the sound. These are transcript pages

21 3039, 3047, and Exhibit P308. I would refer also to Exhibit P306 and

22 307, both under seal.

23 He then heard the shell landing in Bascarsija. Bascarsija is an

24 area he knew very well because he lived in the neighbourhood, in Bistrik.

25 He explained that from the position where he was that morning, on the

Page 115

1 slope of Mount Trebevic, he could hear what was happening below in

2 Bascarsija. And again I would refer to Exhibit P306 and 307, both under

3 seal, and transcript pages 3038, 3039, 3041, 3048, and 3071.

4 Now, the appellant cross-examined W-12 in order to challenge his

5 credibility, and I would refer Your Honours' attention to transcript

6 pages 3061, 3068, 3076 to 3078, and today, in his appeal brief, only

7 repeat the same challenges. But the Trial Chamber heard and observed

8 W-12 first-hand and found him to be a reliable witness, not only in

9 relation to this incident but also with respect to other matters. In

10 assessing his credibility --

11 JUDGE POCAR: Mr. Costi, can you slow down.

12 MR. COSTI: I am very sorry. I'm very sorry.

13 JUDGE POCAR: Apparently the translation cannot cope with the

14 rate.

15 MR. COSTI: I am sorry also to the translators.

16 I was saying that the appellant had the chance to cross-examine

17 W-12 and in his Appeal Brief he is basically re-arguing the same

18 challenges already before the Trial Chamber. The Trial Chamber heard and

19 observed W-12 first-hand and found him a reliable witness. In assessing

20 his credibility, the Trial Chamber had also the opportunity to observe,

21 during a site visit, the locations of Bascarsija, Mount Trebevic, and

22 Vidikovac.

23 The task of hearing, assessing, and weighing the credibility of

24 the witnesses is for the Trial Chamber. And the appellant has failed to

25 show an error on the part of the Trial Chamber in how it assessed the

Page 116

1 evidence of these witnesses.

2 Your Honours, as the Trial Chamber found, there is no evidence

3 suggesting that the ABiH ever turned its weapons to fire its own

4 people -- on its own people. The evidence on the record rebuts this

5 allegation and supports the Trial Chamber conclusion that it was not the

6 ABiH who fired the shells that hit the Bascarsija Flea Market but it was

7 the SRK under the command of Dragomir Milosevic. Now, if you have,

8 Your Honours, any questions on this point or if you want I can ...

9 JUDGE POCAR: There is no question, unless --

10 JUDGE MERON: President, I would like to ask a question which the

11 Prosecution could answer after lunch.

12 JUDGE POCAR: Yes, please.

13 JUDGE MERON: I would like to return for a moment to the

14 Prosecution's argument that -- or contention that particular acts or

15 threats do not require death or serious injury to civilians to qualify as

16 a crime of terror. I would be grateful if you would explain after lunch

17 perhaps how does your contention fit into the holding of the Galic

18 appeals judgement. And as a subsidiary question, if death or serious

19 injury are not required, is a psychological damage or traumatic damage

20 required? You might want to reflect on that.

21 JUDGE POCAR: Sure, Judge Liu.

22 JUDGE LIU: Yes, I also have a question concerning the

23 paragraph 999 of the judgement which take the commander position of the

24 accused as an aggravating factor and convicting him as planning and

25 ordering him to gross and systematic violation of the international

Page 117

1 humanitarian law. To my understanding that the element of ordering

2 requires that somebody in the position of authority to request or make

3 somebody to commit a crime. Do you think that the Trial Chamber double

4 counting that position in authority as an aggravating factor? And of

5 course you said not, but I want to hear you elaborate on this aspect.

6 You may answer this question after we come back in the afternoon. Thank

7 you very much.

8 JUDGE POCAR: Well, this concludes the hearing of this morning.

9 We will reconvene as scheduled, at 2.15 or perhaps 2.30. 2.30.

10 --- Luncheon recess taken at 12.59 p.m.

11 --- On resuming at 2.31 p.m.

12 JUDGE POCAR: Well, we resume the hearing. At the end of the

13 morning some questions had been put by Judges to the Prosecutor, and the

14 Prosecutor would like to answer these questions now. Before they do,

15 perhaps may I add an additional question, additional to what has been

16 asked by my colleagues, Judge Meron first, on the crime of terror. If

17 I'm correct, the Prosecution referred earlier to the elements of the

18 actus reus of crime of terror, arguing that in order to satisfy the third

19 Tadic condition, the acts or threats of violence alleged should be such

20 that are at the very least capable of spreading terror.

21 The Prosecution observed also that in Galic terror should be

22 understood as the causing of extreme fear.

23 Now, in light of this submission is perhaps the Prosecution

24 arguing that actual terrorisation of the civilian population is a

25 requirement of a crime of terror which was not recognised by Galic? If

Page 118

1 not, I would like perhaps the Prosecution to elaborate on how an act that

2 is merely capable of spreading terror but does not actually do so will

3 satisfy the third Tadic condition, in particular which will be the grave

4 consequences for the victims. So perhaps in answering you may take this

5 point also into account.

6 Please, you have the floor.

7 MR. COSTI: Thank you, Mr. President. Good afternoon,

8 Your Honours. We suggest to proceed in this way. I will first very

9 briefly finish my submission in relation to the Defence eighth ground of

10 appeal. Then my colleague Francois Boudreault will address Judge Meron

11 and President Pocar's question, and finally, my colleague Barbara Goy

12 will address Justice Liu's question.

13 So I will briefly respond to the appellant's eighth ground of

14 appeal. The appellant argues that the Trial Chamber needed to determine

15 the charges of the shells in order to be able to find beyond reasonable

16 doubt that the origin of the fire was in SRK-held territories. Now, it

17 is true that in the same direction at the foot of Mount Trebevic, below

18 the SRK offensive position there was the ABiH line of defence. And it is

19 also true that the Trial Chamber made no findings on the calibre or the

20 charges of the shells. However, the Trial Chamber was fully entitled to

21 conclude, on the basis of the totality of the evidence discussed before,

22 that the shells were fired from the SRK-held territories.

23 Now, let me, Your Honours, be clear on this point. The result of

24 technical analysis of the incidents, such as the determination of the

25 calibre or the charges of the shells, are not fact indispensable to the

Page 119

1 conviction to be proven beyond reasonable doubt. They are nothing more

2 than helpful indicia that, when present, can be taken into account

3 together with the evidence to determine who fired the shell. What needed

4 to be proven beyond reasonable doubt on the totality of the evidence is

5 that the shells were fired by the SRK, and this is exactly what the

6 Trial Chamber did and found on the basis of the police report, the UNMO

7 investigations, and the testimony of eye-witness W-12.

8 Your Honours, the appellant has failed to show that no reasonable

9 Trial Chamber could have concluded that the shells that hit the

10 Bascarsija Flea Market on the 22nd of December, 1994, were fired by the

11 SRK.

12 Now, Your Honours, before I conclude I would like only to address

13 one last point. This morning the appellant listed a series of exhibits

14 that in his submission would show that the ABiH fired on its own people

15 in Sarajevo. And this contrary to the Trial Chamber finding at

16 paragraph 795. We reviewed during the break these exhibits and we submit

17 that none of them show that the ABiH troops were firing their own people

18 within the confrontation line. For instance, if I may, just very briefly

19 Exhibit D148, and it's just one among the other, it says -- it is a

20 letter of the Bosnian Herzegovina command, Army of the Bosnian

21 Herzegovina command and it says that:

22 "On 14 October 1994, one of our soldiers tried to escape to the

23 other side, in Grbavica sector. Our soldiers opened fire and probably

24 wounded him."

25 Now, I won't go on reading others, but the point is that, first

Page 120

1 of all, that all this evidence were before the Trial Chamber, most of

2 them are quoted in the judgement. Second, none of them supports that the

3 ABiH ever fired at its own people within the confrontation lines. And

4 third, and more importantly, none of them refers to the shelling of the

5 Bascarsija Flea Market. So this would really end my submission unless

6 there are any questions from Your Honours. Thank you.

7 JUDGE POCAR: Mr. Boudreault, you have the floor.

8 MR. BOUDREAULT: Good afternoon, Your Honours. I will respond to

9 Judge Meron's question and then I will address Judge Pocar's question.

10 Your Honour, our position is that the Galic appeal judgement does not

11 impose a result requirement. Terror does not require proof of civilian

12 casualties or psychological or traumatic damage. If you would allow me

13 to take you through the Galic appeals judgement starting with

14 paragraph 100, which ...

15 [Prosecution counsel confer]

16 MR. BOUDREAULT: If you could turn on the video on your screen.

17 Yes. At paragraph 100 of -- is it working?

18 If I could direct your attention first to paragraph 100 of the

19 Galic appeals judgement. The Appeals Chamber first outlines the elements

20 of the crime of terror as identified by the Galic Trial Chamber, the

21 first one being the:

22 "Acts of violence directed against the civilian population or

23 individual civilians not taking direct part in hostilities causing death

24 or serious injury to body or health within the civilian population."

25 At the bottom of paragraph 100 of the Galic appeals judgement,

Page 121

1 the Appeals Chamber explained that the Trial Chamber did not consider

2 whether it would have jurisdiction over forms of violence other than acts

3 of violence causing death or serious injury; that is, it did not consider

4 whether the crime of terror against the civilian population could consist

5 only of threats of violence or acts of violence not causing death or

6 injury.

7 The Appeals Chamber then explains at paragraph 101 that the

8 analysis of the elements of the crime must be based on the definition

9 provided in the Additional Protocols.

10 At paragraph 102 the Appeals Chamber explains that the acts or

11 threats of violence constituting the actus reus of terror can comprise

12 attacks or threats of attacks against the civilian population but may

13 also include indiscriminate or disproportionate attacks or threats

14 thereof.

15 The Appeals Chamber then explains in the middle of the paragraph

16 at page 50 that the primary concern with the crime of terror is the

17 specific intent to spread terror among the civilian population. Towards

18 the end of the paragraph the Appeals Chamber explains the distinction

19 between terrorism outside of an ongoing military attack and the war crime

20 of terror, the crime with which it is concerned. It says that the crime

21 of terror is concerned with "'extensive trauma and psychological damage'

22 being caused by 'attacks [which] were designed to keep the inhabitants in

23 a constant state of terror.' Such extensive trauma and psychological

24 damage form part of the acts or threats of violence."

25 In our submission, this excerpt simply describes the type of harm

Page 122

1 sought to be prevented by the prohibition on terror. In other words, it

2 describes the type of harm that must be intended by the perpetrators of

3 terror. Our submission is that the Galic Appeals Chamber did not seek to

4 impose a requirement to prove extensive trauma and psychological damage.

5 Such a result requirement would be difficult to reconcile with the

6 Appeals Chamber's subsequent discussion at paragraph 103 and 104, which

7 finds that the actual terrorisation of the civilian population is not an

8 element of the crime of terror.

9 Your Honours, we say that extensive trauma and psychological

10 damage is terrorisation in that context. Requiring proof of extensive

11 trauma and psychological damage would be to require proof of actual

12 terrorisation. This was rejected at paragraph 103 and 104 of the Galic

13 appeals judgement.

14 Turning to Judge Pocar's question, as I've just mentioned, we do

15 not dispute that actual terrorisation is not an element to be

16 established. We nevertheless think that acts or threats of violence

17 which are capable of causing actual terrorisation in a population satisfy

18 the third condition of the Tadic decision; that is, they involve grave

19 consequences for the victims. In particular, as the civilian population

20 is put in danger by these acts or threats of violence and as it is

21 deprived of its sense of security. Some of the more concrete threats

22 that may be or more concrete consequences for the victims that may follow

23 from this, the attacks or threats of attacks will profoundly affect the

24 way civilians lead their lives. To take the example of the case at hand,

25 the civilians were forced to live underground, to avoid crowds, to get

Page 123

1 out only in night, to forego some of their activities. In brief, their

2 entire life was affected by those acts and threats.

3 The acts and threats might even force civilians to leave the

4 area. So these are certainly serious and grave consequences for the

5 victims.

6 Your Honour, this would conclude our submission. Unless there

7 are further submissions, I will pass on to Ms. Goy.

8 MS. GOY: Good afternoon, Your Honours. I will conclude the

9 Prosecution's submission by addressing Your Honour, Judge Liu's question

10 posed before the break with regard to the aggravating factors addressed

11 in trial judgement paragraph 999. In paragraph 999 the Trial Chamber did

12 not double count an element of the mode of liability of ordering, the use

13 of the position of authority. Rather, the Chamber took into account

14 Milosevic's abuse of his very high position of authority as corps

15 commander through systematic violations of international humanitarian

16 law.

17 The position of authority, as Your Honour Judge Liu has rightly

18 pointed out, is inherent in the mode of liability of ordering and as such

19 cannot be used as an aggravating factor. But here it was not even the

20 mere abuse by issuing orders, but the abuse from a very high position of

21 authority. And the last sentence of paragraph 999, where it says "abused

22 his position," has to be read in context with the rest of the paragraph,

23 where the Chamber held that "Milosevic held one of the highest positions

24 within the VRS. He had a special responsibility to uphold standards of

25 IHL."

Page 124

1 And in Galic the Appeals Chamber had accepted this as an

2 aggravating factor. In paragraph 412 of the Galic appeals judgement, the

3 Appeals Chamber has accepted as aggravating the repeated breach of

4 Galic's public duty from a very senior position, and Galic was in the

5 same position as Milosevic, corps commander of the SRK, and was also

6 convicted for having ordered terror through a campaign of shelling and

7 sniping. The Chamber therefore here did not count the authority to give

8 orders, not the mere abuse of ordering as such, but the abuse from a very

9 high position of authority in a gross and systematic way.

10 This concludes our answer to Your Honour's questions, and unless

11 there are any further questions this also includes the Prosecution's

12 response. Thank you.

13 JUDGE POCAR: Well, then I take it that the Prosecution has

14 concluded its response.

15 I will turn now to the Defence for the reply. You have the

16 floor.

17 MS. ISAILOVIC: [Interpretation] Thank you, Your Honour.

18 Thank you, Your Honours. I shall reply briefly to questions I

19 have already answered. In light of what the Prosecutor has said, I shall

20 begin with the question that has to do with the consideration of similar

21 circumstance, i.e., the elements of the crime as aggravating factors. In

22 our view, this is extremely clear. We only discuss the errors in law

23 committed in paragraphs 999 to 1001 and -- and the answer was given to

24 your question, we -- our answer was more of a legal nature. We do not

25 deviate so much from the Prosecutor. Should we not consider the

Page 125

1 prerequisites and then increase the sentence of a convicted person?

2 What is being discussed is the abuse of authority of a commander.

3 The way we put our case is that our client is innocent, but theoretically

4 speaking, if we were to consider the abuse of authority, can one imagine

5 for a single second that a commander commits crimes, war crimes, without

6 abusing his authority. This is a conundrum which, to all intents and

7 purposes, is rather difficult to imagine.

8 As far as the issue, question number 4, is concerned, the

9 incident that took place in the flea market of Sarajevo, the Prosecutor

10 recounted what is contained in the judgement. We understand full well

11 that he agrees with this, but we developed this in paragraphs 239 to 261

12 of our Appeal Brief and we clearly indicated that this incident was an

13 isolated incident. And we demonstrated that it has not been proven

14 beyond all reasonable doubt that the only possibility in these

15 circumstances was to conclude that the shots came from the positions held

16 by the SRK. This is precisely the standard that is applied before this

17 Tribunal.

18 We have explained all of this in detail in our Appeals Brief,

19 more specifically in paragraph 251, and the Prosecutor told us earlier

20 that it did not need to demonstrate that all the indicia, i.e., the

21 charges, range, and all the elements needed to be proven. But these

22 indicia we feel need to be proven, because according to the case law of

23 the Tribunal and Ntagerura appeals judgement we need to, and the

24 Prosecutor has a duty to prove this beyond all reasonable doubt, all the

25 relevant indicia to determine the culpability of the accused. This was

Page 126

1 not the case because, let me remind you, that it was important to

2 determine the charge of a projectile. The direction is not enough. When

3 you have a projectile flying in both -- in the same direction from the

4 same warring faction, you need to demonstrate the charge of the

5 projectile which is one of the indicia which is in line with the

6 jurisprudence in Galic, which is perfectly well explained. And all this

7 needs to be proven.

8 So I'm not going to spend time on Witness B-12 [as interpreted],

9 on the basis of which all of this rests, because there are some

10 unanswered questions in this regard and this is what we discuss in our

11 Appeals Brief.

12 At the end, this is the last but not the least, the elements of

13 the crime of terror. Whilst I listened to the Prosecutor and when I

14 listened to the questions that were raised, I'm a little bit afraid of

15 the Galic appeals judgement being reversed. I hope this is not going to

16 happen because a question of your competence to rule on the crime of

17 terror is raised. At no point in time was this the case put by the

18 Defence, and precisely, if I'm not mistaken, the Tadic case law was

19 designed to demonstrate that as part of Rule -- Article 3 of the Statute,

20 certain crimes can be tried even though they are not listed. We agree,

21 nonetheless, that the crime of terror, as it is described in the

22 Protocols and in your case law, is of -- falls within the competence and

23 jurisprudence of this Tribunal. So to re-assess the gravity of the

24 offences seems to me a little bit far-fetched, but we will see what is to

25 happen after your deliberations.

Page 127

1 Now, what is being brought up again is the Galic appeals

2 judgement. We forget to say -- and a while ago I was referring to this

3 footnote which illustrates this perfectly well. So what comes to mind is

4 a question of legal rationale. Why could there not be a cumulative

5 conviction for civilian attacks and the crime of terror if one accepts

6 what we are being told today, namely, what has been said by the

7 Prosecutor? In other words, the actus reus is identical between the two;

8 the mens rea, i.e., the crime of attacks against the civilians, and in

9 addition the specific intent to spread terror.

10 The Prosecutor told us in its Response Brief that the fact that

11 terror is spread is not included in the actus reus. I cannot look at

12 this right now, but this was mentioned again by the Prosecutor today

13 because terror that is inflicted, i.e., really spread, actually spread,

14 is not an element of the crime. This is something we explained in our

15 Appeals Brief because the intent must be proven and there are a number of

16 criteria to be met. This is mentioned in the Galic appeals judgement,

17 not by terror or fear or the spreading of terror among a population or a

18 civilian population or individuals taken -- or civilians taken

19 individually. This was explained.

20 We can conceive that a commander sees that there are attacks

21 against civilians, the primary purpose of which is to spread terror, but

22 then if nobody is afraid, is that person held liable for that crime or

23 not? One can also imagine that the civilian population is terrified by

24 the war that surrounds it, that is perfectly normal. But nonetheless, it

25 must be proven on the basis of other indicia that these attacks had for

Page 128

1 sole purpose to spread terror and made it so felt on the civilian

2 population.

3 These are the questions which to my mind are essential questions

4 and I'm sure and I hope that you are going to apply the Galic

5 jurisprudence in this field. Thank you.

6 JUDGE POCAR: [Microphone not activated]

7 MR. TAPUSKOVIC: Yes.

8 [Interpretation] Good afternoon, Your Honours. This time that we

9 still have left, and keeping in mind what we have heard from the

10 Prosecutor, I would like to provide some more explanations. The

11 Prosecutor has repeated what they have been asserting the whole time,

12 which is contrary to the evidence that we presented, and we heard in

13 response to our grounds of appeal that there was no evidence that the

14 Army of Bosnia and Herzegovina, to leave aside the issue of the way the

15 Prosecutor interprets indisputable data that the B&H army fired from

16 their positions at their own civilians and soldiers and UNPROFOR members,

17 but the judgement itself provided a few examples.

18 We referred to some other examples in our appeals brief about the

19 actions of the artillery firing, even sometimes over the heads of their

20 own people, jeopardising the lives of the people in their own area. But

21 you have heard about the Prosecutor speak about how for 20 days there was

22 constant heavy artillery fighting on the part of the B&H army between the

23 15th of July -- June and the 4th of July, 1995, and we have heard the

24 Prosecutor say that the civilians were able to come out only at night.

25 Is it possible that with such artillery fire around their houses in a

Page 129

1 period of 20 days could they have even thought about leaving their homes?

2 But I have referred to the case that the Trial Chamber dealt with. This

3 is paragraph 433. And this is something established by the

4 Trial Chamber, and that is that a number of people in that one incident

5 that was described there - without having to go into it - were victims of

6 the Army of Bosnia and Herzegovina.

7 Without going back to 437, I spoke about the incident of the

8 18th of June, 1995, this is the Simon Bolivar school. In the

9 understanding of the Defence this was a matter of pure manipulation in

10 that place where nine people were killed, as the Prosecution asserts.

11 Dragomir Milosevic was acquitted of charges for that incident but not a

12 single piece of shrapnel was found in that location, and these are such

13 situations.

14 Please don't misunderstand me, and of course I don't have to

15 state in front of you that I do not approve of the suffering of any

16 person, whoever they are, but there were instances of manipulations with

17 the bodies of persons who were casualties in other places and we showed

18 that in our evidence. We spent a lot of time on that. I didn't dwell on

19 that too much today.

20 How is it possible that in one place nine persons are killed and

21 there is no single piece of shrapnel found next to their bodies? This is

22 not simply not possible. You're going to review that or consider that.

23 This is something that we have asserted throughout. How is it possible

24 that in these places where the incidents occurred there was no photograph

25 taken of the bodies of the persons who were killed there? On the other

Page 130

1 hand, I was not able to dwell too much on the television building attack,

2 but also the question remains for you to consider in that particular

3 incident that many exhibits indicated, on the day that the event took

4 place, that the building was hit by an air bomb by the Army of Bosnia and

5 Herzegovina, and this is something the documents of UNPROFOR reports

6 state. Of course it's possible to dispute these things. All the

7 witnesses who drafted that document on that day and who were

8 eye-witnesses remained by their testimony. In the worst case it could

9 not have been the only possible option that it came from the positions of

10 the Army of Republika Srpska.

11 Anyway, as far as all the air bombs are concerned, it is asserted

12 that they were fired from positions of the Army of Republika Srpska, but

13 this one event, which, without dispute, indicated that something else had

14 happened in the way that I explained, was something that was not

15 interpreted in the manner to which I pointed.

16 Anyway, without going into the Markale incident you are going to

17 deal with this charge in reference to Bascarsija, this shell charge when

18 we're talking about the Markale case. This had to be established and in

19 the Galic case this was determined precisely on the 5th of February,

20 1994. In this case, this charge was not established to this very day

21 precisely, and the azimuth was established by observing the building over

22 which the shell came. And this is this incident in Bascarsija in

23 relation to which you had questions. But it is also something that can

24 be applied to the case in Markale.

25 In any case, the Markale issue is not something that should be

Page 131

1 dealt with in our response.

2 The Prosecution states that the Trial Chamber considered evidence

3 of significance for the military targets in Sarajevo that were under the

4 control of Bosnia and Herzegovina army. This is not correct. I have

5 already indicated a lot of these things. Yes, the Trial Chamber did in

6 some places refer to what I talked about, but when it was evaluating this

7 crucial question regarding any form of responsibility of

8 Dragomir Milosevic they did not deal with that particular aspect.

9 I would like to go back to that since we're only discussing

10 military targets. These were military targets. I can show you, because

11 I have the possibility, I can use the time that is available to me to

12 point this out. If you can please look at document, for example, 189.

13 No. No -- yes, actually, it is document 189, D189. You will see in this

14 document that the 12th Division and their daily ammunition expenditure,

15 daily expenditure, for the 16th of May - this is much before the

16 offensive began - and there you can see the weapons that are being fired.

17 You will also see that on that day about 25.000 bullets were discharged,

18 and you will also see that from 120-millimetre mortar 76 shells were

19 fired, while it is being asserted that the Markale incident caused more

20 than 100 casualties from one single shell, that 466 mortar shells were

21 fired on that day and 379, 60-millimetre shells, and then they list the

22 heavy weaponry of different types. And if it was also being asserted

23 that Sedrenik was a civilian area, we managed to show that Sedrenik --

24 just give me a minute to find it, please. This is the 105th Division now

25 that we're talking about -- no, the 105th Brigade.

Page 132

1 In paragraph 901 it says -- of the judgement, that is, it's

2 important that the Defence did not offer absolutely anything to

3 substantiate its submission that Sedrenik was a military zone. Can you

4 just please look at the report for the 19th of June, this is

5 document D437, where you will be able to see the quantity of shells that

6 were fired there. Then it says in one place that, Our actions boil down

7 to constant firing along certain axes and our firing was assisted by

8 120-millimetre mortars by the HVO. These are Croatian forces in Sarajevo

9 at Marin Dvor in the centre of town, which is something that we already

10 discussed and so on and so forth. And then in reference to Stup,

11 document D505, for the same day, here we can also see firing exclusively

12 from heavy weaponry, and for one day -- if we can just look at this one

13 more thing and then we will finish looking at this document.

14 The document that refers to the munition fired on that day and

15 that's the only part that was translated, this is the 20th of July, where

16 we have 130.000 bullets almost. We're talking about a civilian zone

17 which the Prosecution asserts is a civilian zone. Mortar shells that

18 were fired amounted to 460 -- 440 of 60 millimetres and 72-millimetre

19 shells, 1.000 of them, and so on and so forth.

20 I didn't refer to the number of the document. D236 is the number

21 of this exhibit.

22 If the Prosecution in spite of that asserts that the

23 Trial Chamber evaluated these documents in their decision that it was a

24 civilian zone, and we said that that was the first conditions in order to

25 make a decision on any type of responsibility, then I'm afraid I don't

Page 133

1 really know what exactly we're talking about here.

2 And so, to wind down what we wish to say, I think that we stated

3 most of the things that were important to us. I would like to go back

4 now just to what the Prosecution said in respect of the Markale incident

5 in their presentation -- no, actually, the alibi issue. The problem with

6 the alibis are important because if you were to evaluate or assess that

7 the alibi was really proven and that a person cannot be held

8 responsible - and this is a well-known rule in all systems before all

9 Tribunals - that absence from a particular place where something is

10 happening does not imply bearing responsibility for such an event, then

11 the Markale incident can then be left aside in relation to that

12 particular person, even without any investigation being conducted when

13 the shell charges were the main issue and when the report was sent to the

14 UN stating that, We are unable to state anything with precision because

15 we don't know exactly what kind of a shell charge it was, then on those

16 grounds solely the accused or the appellant would need to be acquitted

17 because he did not happen to be there.

18 We, as his Defence, felt that it was not necessary to deal with

19 that matter of Markale because at that time the person was far away, in a

20 different state, lying in a hospital bed after eye surgery, and this

21 surgery was performed in order to save his sight. And you heard the

22 Prosecutor refer to documents signed by the person who was in charge at

23 that time, at that post. The Prosecutor referred to a document a little

24 bit earlier where General Dragomir Milosevic writes to Mladic:

25 "When I was in the hospital you immediately appointed someone

Page 134

1 else to stand in for me ..."

2 So this indicates he was against this. He directly expressed his

3 displeasure at being replaced or substituted, and then the person who was

4 there at the time should probably have been held responsible for that.

5 If we also consider the Law on the Army, this is something that

6 should be considered in every case, we didn't adduce it in this case, but

7 it says:

8 "A senior officer who is temporarily prevented from carrying out

9 his duties is being assigned with a replacement or a substitute" --

10 MR. ROGERS: Your Honours, I'm sorry. Your Honours, I'm sorry to

11 rise again --

12 JUDGE POCAR: Yes.

13 MR. ROGERS: -- but my learned friend appears to be referring

14 again to material which is not on the record. He's simply -- he's just

15 said that perhaps he should have adduced it which would tend to suggest

16 that he hasn't adduced it which means it's not on the record and he's not

17 entitled to rely upon it unless he seeks to make a Rule 115 application.

18 If this is part of his case, then one would have thought it might have

19 been addressed during the course of the trial and not now on appeal.

20 JUDGE POCAR: Yes, Mr. Tapuskovic, I think the Prosecution is

21 correct on this. You should not refer to a document which has not --

22 which has not been admitted.

23 MR. TAPUSKOVIC: [Interpretation] Mr. President, it is true. I

24 knew that I would come across difficulties when it comes to the documents

25 that I was only able to obtain today after five years of working on this

Page 135

1 case. That's the sort of state we have. One could not come by any

2 documents for a long time and only now the archives have been opened to

3 us. I wanted to raise this issue because I think it's very important,

4 and this is a document that is generally known and is known also to the

5 Bench. It is not a document as such. It is the Law of the Army that you

6 have in all the cases before this Tribunal. There is not a single case

7 where this document has not been used and translated. And it is the law

8 that uses the term "substitute."

9 JUDGE POCAR: [Microphone not activated]

10 THE INTERPRETER: Microphone for His Honour.

11 JUDGE POCAR: Sorry. I already directed you this morning to

12 submit a 115 motion according to the Rules of Procedure and Evidence. I

13 think the question was closed this morning on this issue. Please don't

14 re-open it now.

15 [Appeals Chamber confers]

16 MR. TAPUSKOVIC: [Interpretation] Your Honour, I no longer spoke

17 of the document, being aware that problems may arise with regard to

18 Rule 115. I spoke of the legislation prevailing and I'm -- I was

19 referring to the Law on the Army of Republika Srpska. A senior officer

20 who is provisionally prevented from performing his duty will have a

21 stand-in person appointed in his stead --

22 MR. ROGERS: I'm sorry to keep getting up, but the law is not in

23 evidence in this case and it should have been if the appellant wishes to

24 rely upon this as part of his case either at trial or here. There's no

25 question, as I understand it, during the course of the hearing of anyone

Page 136

1 being asked to take judicial notice of the law or that there was any

2 agreed fact as to what the law was. And the -- as I understand it, the

3 question of Dragomir Milosevic's command was an agreed fact that he was

4 commander throughout the indictment period. This should have been dealt

5 with not here but at trial, and if it's to be dealt with here, it should

6 be the subject of a 115 application.

7 JUDGE POCAR: Mr. Tapuskovic, I already said you that if you want

8 to bring it in - I understand your position because it depends on the

9 legal systems, but we have a system that goes in that direction. So you

10 should -- you should motion -- bring a motion 115. You are entitled to

11 do it under the Rules. If you look at the Rule 115, you're entitled to

12 bring a motion even at this late stage. So please do it.

13 MR. TAPUSKOVIC: [Interpretation] In that case, you are right in

14 saying that these are different legal systems. I have been working for

15 five decades under a legal system and I am full aware of it. We are

16 talking about the law applied by this Tribunal which has been in

17 application for 13 years in all the cases before it. That's number one.

18 Number two, if you'll allow me, I can also tender the document or seek

19 admission of the document that I obtained yesterday and I don't want to

20 go into any names now but what I would like to highlight --

21 JUDGE POCAR: I don't want to repeat myself. You can certainly

22 ask for the admission of the document, but you have to do it through the

23 appropriate procedure, which is a Rule 115 motion.

24 MR. TAPUSKOVIC: [Interpretation] Very well --

25 JUDGE POCAR: You can't do it now, simply. We are not at trial.

Page 137

1 You can't do it now.

2 MR. TAPUSKOVIC: [Interpretation] I'm well aware of it,

3 Your Honour. For as long as I've had this document in my possession, for

4 some 15 hours, I was aware of the problem, but the gist of what I wanted

5 to say, I have in fact said in the past couple of minutes.

6 What the Prosecution is insisting upon is that he, General

7 Dragomir Milosevic, instructed Cedo Sladoje to do this and that. To my

8 knowledge, the way things should be done is for this individual to be

9 called to appear here and to state himself in what way he was instructed.

10 We have used the defence of alibi for that particular period and the

11 Prosecution never raised this argumentation at trial. Now, Cedo Sladoje

12 is alive and well. In view of the assertions on the part of the

13 Prosecution that he had instructed him or that he had instructed someone

14 to commit crimes, then it is only natural, first, for the person who has

15 allegedly been instructed to decide himself if he should engage in the

16 commission of crimes; and secondly, can we not eliminate this obstacle

17 that now exists for the defence of alibi at this stage at which we are

18 now? You are Judges with a great deal of experience and I'm sure you

19 will not allow for something of this sort, where an individual is

20 bed-ridden in an attempt to save his eyesight. I'm sure that you will do

21 what you deem is best in the circumstances and that you will take into

22 consideration the provisions of the law I quoted. Thank you.

23 JUDGE POCAR: I thank you. Is this concluding your reply? Well,

24 if this is the case, this concludes the consideration of the appeal of

25 Mr. Milosevic. We are a bit ahead of schedule. I would think we can

Page 138

1 move on to the appeal brought by the Prosecution against the trial

2 judgement and -- before the break, and so I will give the floor to the

3 Prosecution for its submission on the Prosecution's appeal.

4 You have the floor.

5 MR. ROGERS: Your Honours, thank you. Your Honours, I'll be

6 dealing with the Prosecution's appeal against sentence.

7 Your Honour, the Prosecution's primary submissions in this case

8 are that the Trial Chamber erred in crediting, first of all,

9 Dragomir Milosevic with any mitigation in this case; and secondly, that

10 it erred by imposing a manifestly inadequate sentence of 33 years'

11 imprisonment instead of life to reflect the role of the accused, the

12 seriousness of the offences, including the impact on the victimised

13 population of Sarajevo.

14 As a preliminary matter, Your Honours, the Prosecution has

15 advanced an argument in its brief at paragraph 21 that the Trial Chamber

16 failed to count as the victims of terror persons other than those who

17 were the victims of sniping -- of the specific incidents of sniping and

18 shelling. On one reading of paragraph 993 of the judgement, that does

19 seem to be what happened, but at paragraph 910 the Trial Chamber also

20 referred under "Terror" to the - and I know Your Honours have already

21 quoted it - "deep and irremovable mental scars on the population as a

22 whole." And it may be, therefore, that Your Honours consider the Trial

23 Chamber did have in mind the effect of the campaign of terror on the

24 entire population of Sarajevo when sentencing. And, Your Honour,

25 obviously I leave it with Your Honours as to what you make of that.

Page 139

1 Your Honours, I turn now to deal with the appeal. On the

2 18th of November, 1994, within the indictment period, Dragomir Milosevic

3 was 52 years of age. He had risen to the rank of major-general in what

4 had become the VRS and had assumed command of the Sarajevo Romanija Corps

5 by latest 12th of August, 1994.

6 On the 18th of November, 1994, Nermin Divovic was 7. The

7 evidence does not record where Dragomir Milosevic was on that day.

8 Perhaps he was visiting his troops, something Your Honours have heard he

9 did regularly, earning, according to Defence witnesses, the high esteem

10 of his soldiers because he took care for their needs, trial

11 judgement 805. The trial judgement does record where Nermin Divovic was,

12 325 to 341 in the judgement. He was with his mother, Dzenana Sokolovic,

13 and his 8-year-old sister. They were in the besieged city of Sarajevo,

14 walking home on Zmaja Od Bosne, or Sniper Alley -- do Your Honours have

15 any difficulties with the translation because mine suddenly went to

16 French on the English channel, as it were?

17 Your Honours, I'll go back.

18 The judgement does record where Nermin was. They were in the

19 besieged city of Sarajevo walking home on Zmaja Od Bosne, Sniper Alley,

20 close to the Holiday Inn. They had collected firewood from Hrasno,

21 4 kilometres from their home in Bistrik.

22 As they approached Franje Rackog Street where it met Sniper

23 Alley, Nermin was talking to his mother, holding on to her jacket. At

24 the end of the street, across the Miljacka River, inside the Metalka

25 building, were SRK snipers. Nermin and his mother would have been

Page 140

1 unmistakable from the building, yet one of those soldiers shot them. The

2 bullet passed through Nermin's mother's body leaving her with significant

3 physical scarring, and then passed through Nermin's head killing him.

4 John Jordan, an international firefighter and rescue worker, who

5 attended many such incidents said of them:

6 "When you are targeting civilians like this, particularly

7 families who may or may not be a Muslim, shooting the child has the

8 effect of literally disembowelling the whole family." Trial

9 judgement 747, transcript 2697 to 8.

10 That day, the 18th of November, 1994, was typical in Sarajevo,

11 when SRK snipers under the command of Dragomir Milosevic stole the lives

12 of its civilians. They took them on the trams and while going to work,

13 when collecting water and gathering food, on the streets and in their

14 homes. They left the survivors stripped of their dignity and their

15 emotions, leaving them numb to grief and to the pain of loss, running

16 everywhere, living in basements, hiding behind makeshift screens. In the

17 words of Martin Bell, recited in the judgement at para 275, they "looked

18 haggard, they looked hunted. Survival was what it was about. They were

19 truly desperate times."

20 As if this sniping was not enough, SRK troops shelled and bombed

21 those civilians trapped inside Sarajevo intending to kill them, to cause

22 them serious bodily injury, trial judgement 932, and to terrorise them,

23 trial judgement 967. Offensives launched by the city's defenders often

24 resulted in the civilians being punished with retaliatory shelling and

25 sniping, reference trial judgement 757.

Page 141

1 At the apex of the SRK sat Dragomir Milosevic. Between about the

2 10th of August, 1994, and the 21st of November, 1995, he presided over,

3 planned, and ordered the implementation of the campaign of sniping, trial

4 judgement 962 and 966, and shelling, 964 and 966, begun while he was

5 deputy commander to General Galic. His purpose in planning and ordering

6 this campaign was to terrorise the civilian population, that is, to

7 create extreme fear, trial judgement 883, over and above that experienced

8 by civilian population in close conflict.

9 In this he succeeded. The entire population of Sarajevo had

10 inflicted deep and irremovable mental scars on the whole population.

11 One witness trial judgement 3236 -- sorry, forgive me,

12 transcript 3236, trial judgement 811, described the SRK activities under

13 Dragomir Milosevic as "more subtle," "more precise," and "more dangerous"

14 than those of his predecessor General Galic, now serving a life sentence

15 imposed by this Chamber. Brigadier-General Fraser testified that there

16 was "a commander's intent in play around the city of Sarajevo with

17 respect to the sniping incidents." To him the sniping along Sniper Alley

18 in the centre, around the airport to the south-west, and Spicasta Stijena

19 to the north-east, indicated a "higher commander's intent." Trial

20 judgement 853.

21 In developing this campaign Dragomir Milosevic continued to shell

22 Sarajevo with mortars both deliberately or indiscriminately. Both the

23 Bascarsija Flea Market and the Markale market were struck. At Markale

24 there were extensive casualties, 34 civilian deaths, at least 78 people

25 wounded, many seriously, some losing their limbs. The judgement at

Page 142

1 paragraph 675 recites by way of example the statement of Mesuda Klaric,

2 P648, who was 55 and in the street by the Markale market with her husband

3 Ismet when the shell landed.

4 She described the immediate aftermath, and I quote:

5 "... it was like I was half conscious ... I saw my husband grab

6 his right arm. Then he told me 'I lost my arm' ... I was covered with

7 blood everywhere ... I saw a lot of people laying on the street ... a car

8 stopped and one young man grabbed me ... another stopped ... they picked

9 up my husband ... the young man put me in his car, together with a young

10 girl and another young man ... the young girl lost her foot."

11 She saw her husband had lost his foot and had a groin injury

12 through to the bone. He and her husband were admitted for surgery. The

13 last time she saw him was as they took him to the morgue. She continues

14 to have shrapnel in her back near her kidneys and in her knee. She ends

15 her statement in this way:

16 "All the wounds are now healing, except that my husband is gone."

17 In addition to Dragomir Milosevic's mortar shelling, he made

18 extensive use of modified air bombs. They're highly destructive, and

19 whilst there was evidence he may not have been the first to deploy them

20 in Sarajevo, he was prepared to use them repeatedly on civilians.

21 Major Stevan Veljovic, testifying for the Defence, stated that modified

22 air bombs were "completely inaccurate" and "highly destructive."

23 Transcript 5912, trial judgement 97.

24 This weapon, a 100-, 150-, or 250-kilogramme air bomb designed to

25 be dropped from aircraft had rockets attached to it and was fired from

Page 143

1 improvised systems fabricated on the back of trucks, trial judgement 95.

2 Often four or five were fired at a time, as Milosevic recognised

3 their inherent inaccuracy, we submit, P701, page 2, paragraph 2, an order

4 of the 21st of April, 1995. He said in an order for an operation due to

5 take place shortly after the 25th of April, 1995:

6 "Proceed forthwith to prepare launchers and make sure that four

7 to six aerial bombs can be launched simultaneously ..."

8 Going back two days he had ordered full combat-readiness for all

9 his troops and to "have launching pads and aerial bombs ready for firing

10 on the town." That's Exhibit D141.

11 Shortly before this, on 6th of April, 1995, Exhibit P226,

12 Milosevic ordered:

13 "The Ilidza Brigade will immediately prepare a launcher with an

14 aerial bomb and transport the bomb for launching. The most profitable

15 target must be selected in Hrasnica or Sokolovic colony," both, we say,

16 Muslim civilian areas, and he continued, "where the greatest casualties

17 and material damage would be inflicted. Inform me personally of

18 readiness for implementation of this task."

19 The weapon that was fired was a 250-kilogramme air bomb. The

20 result of that order, the incident in Hrasnica on the 7th of April, 1995,

21 is recorded in the judgement at 475 to 495, and summarised in this way.

22 Ziba Subo was in her house in Hrasnica with her sons and

23 grandson. She called her sister Ziba Custovic, who lived a few metres

24 away, to come over for coffee. Ziba Custovic never arrived. As she

25 crossed the street, a 250-kilogramme modified air bomb landed in the

Page 144

1 street killing her. At that moment Ziba Subo described the house "caving

2 in and falling apart." Bricks and plaster fell all over her covering her

3 in rubble, P280, trial judgement 478. She crawled out of the rubble and

4 saw her sister, half her head was missing, she fainted. The

5 Trial Chamber found the bomb destroyed two houses and damaged ten others.

6 Ziba Subo still has back pain and arm pain, her hearing is impaired, as

7 is the hearing of one of her sons who was in the house when the bomb

8 landed.

9 The effect of this instant shelling and sniping was that nowhere

10 was safe, not at home, not in the open, no minute of any day, it was

11 safer during the lulls but even then the population did not feel safe as

12 it never knew when it would start again, trial judgement 743. As one

13 witness described it, life was "like a vacuum, where life was just

14 empty." Trial judgement 746.

15 As Dr. Nakas, the director of one of the hospitals, described it

16 like this:

17 "Each day's work meant exposing yourself to the risk of being

18 added to the long list of the killed and wounded," trial judgement 165,

19 transcript 1062 to 3.

20 Referring to the effects on the population of this endless cycle

21 of killing, Ismet Hadzic said this:

22 "In 1994 and 1995 it became the normal thing, although to say it

23 was normal is horrific. Only the families who had their family members

24 killed were affected. As for the others, they just saw one person less.

25 That was the mental state of the population." Trial judgement 745,

Page 145

1 transcript 3234.

2 The sniping was so bad that by early July 1995, UNPROFOR reported

3 that almost all civilians had stopped using Zmaja Od Bosne, the main

4 east-to-west thoroughfare in the city and that the snipers who worked

5 that area appeared to have been relocated, trial judgement 226.

6 As one witness put it, trial judgement 745, "they could have

7 coped" with the sniping and shelling of their neighbourhood "until the

8 air bomb landed on the 23rd of July, 1995."

9 Despite this terror, terror that Dragomir Milosevic intended,

10 despite the emptiness in people's lives, the constant fear about their

11 own safety and the safety of their children, despite the countless

12 victims of the actual shelling and sniping, let alone the fear engendered

13 in the entire population, running into tens of thousands of people,

14 despite Dragomir Milosevic's explicit order to shell Hrasnica and cause

15 the greatest casualties, despite the targeting of market-places, food and

16 water queues, the shooting of women and children, the Trial Chamber

17 inexplicably found that mitigating features existed. They credited him

18 as "a man of high moral values," an "altruist," a man who appeared

19 "somewhat troubled by what he was doing."

20 In our submission, it is plain that Dragomir Milosevic could

21 never merit accreditation as "an altruist" or a "man of high moral

22 values."

23 To credit him with altruism or with being a man of high moral

24 values as a mitigating factor in the face of his calculated disregard for

25 the welfare of the thousands of civilians in Sarajevo and the -- and

Page 146

1 indeed the planned campaign of misery and terror is plainly an error.

2 Altruism, defined in Webster's dictionary as "uncalculated consideration

3 of, regard for, or devotion to others' interests sometimes in accordance

4 with an ethical principle," would appear to be wholly misplaced as a

5 descriptor for Dragomir Milosevic.

6 Likewise, we submit the Trial Chamber was clearly wrong to give

7 him credit for appearing to be "somewhat troubled by what he was doing."

8 It is unclear whether the Trial Chamber accepted he was troubled or that

9 it accepted someone suggested he was troubled.

10 But in any event, the context of the statement in transcript 1783

11 shows that the reference to being troubled was because his actions may

12 have a consequence for him; that is, that he would not see his daughter

13 again, who (redacted) He was clearly not troubled for

14 the suffering of his victims. Indeed his intent to terrorise the

15 population of an entire city through sniping, using mortars and such

16 indiscriminate weapons as air bombs, together with his explicit order to

17 use such weapons to cause maximum casualties, demonstrates that such a

18 positive finding could not have been established on a balance of

19 probabilities.

20 Further, to credit him with any mitigation for his role in

21 negotiating an anti-sniping agreement, which itself was only necessary

22 because of his continuation of these unlawful acts ignores the entire

23 purpose of the findings relating to the campaign of sniping.

24 In any event, within days of the agreement, Exhibit P6, an

25 UNPROFOR report, records Serb snipers wounding civilians on both the

Page 147

1 22nd and 30th of August, 1994, the first incident being one week after

2 the signing. Given the control of snipers was retained at the highest

3 operational level, no credit should have been given for this negotiation.

4 As for orders not to shoot civilians, whilst this may have

5 occurred from time to time, this can have no bearing on his conviction

6 for the crime of terror, indeed the on/off nature of the activity itself

7 added to the fear felt by the victims as acknowledged by the

8 Trial Chamber, trial judgement 743 and 744.

9 Your Honours, in the context of a campaign of terror for over

10 14 months ordered by Dragomir Milosevic in violation of the Geneva

11 Conventions, it is incomprehensible that any credit could be given to

12 Dragomir Milosevic for his occasional orders to his troops to comply with

13 the Geneva Conventions. The entire strategy being pursued was in direct

14 contravention of those conventions. Every crime was a deliberate

15 contravention. And finally, the voluntary surrender of the accused is

16 itself such an insignificant feature given the magnitude of his crimes,

17 no weight should have been given to it and of itself cannot have resulted

18 in any mitigation in sentence.

19 Your Honours, the sentence of 33 years' imprisonment does not

20 adequately address the magnitude of Dragomir Milosevic's criminal

21 conduct. In Gacumbitsi, the ICTR Appeals Chamber increased a sentence of

22 30 years' imprisonment to life for an accused of the same age as

23 Dragomir Milosevic. It said:

24 "In light of the massive nature of the crimes and the appellant's

25 leading role in them, as well as the relative insignificance of the

Page 148

1 mitigating factors, the Trial Chamber ventured outside the scope of its

2 discretion by imposing a sentence of only 30 years ..."

3 Your Honours, this is what we submit happened here.

4 As Your Honours I'm sure will recall, in Galic, in the appeal's

5 judgement, Judge Shahabuddeen, referring to Gacumbitsi said that he

6 believed there was no basis for distinguishing the approach in Gacumbitsi

7 simply because it was a case dealing with genocide. We respectfully

8 adopt that submission.

9 As he further noted in Galic, Galic, like Gacumbitsi, had been

10 convicted of extremely serious offences and Galic lacked any "especially

11 mitigating circumstances." We submit the parallels with Galic in this

12 case are only too obvious, with the distinction that unlike Galic,

13 Milosevic made extensive and repeated use of the air bomb in targeting

14 civilians, to add to the shelling and sniping already established by

15 Galic himself.

16 In our submission, as Judge Shahabud deen observed in Galic in

17 his opinion at paragraph 37, in reviewing the sentence the approach,

18 respectfully, should be this. He said:

19 "The question is not how the sentence imposed appears in absolute

20 terms; thus viewed a sentence of ..." in this case 33 years' imprisonment

21 "... may appear substantial. The question is how the sentence imposed

22 appears in relation to the sentence which is reasonably judged to be

23 merited by the gravity of the appellant's crimes."

24 There is a qualitative difference between 33 years and life, and

25 as the Appeals Chamber has implicitly recognised in Stakic even between

Page 149

1 40 years and life.

2 In our submission, Milosevic's crimes were "characterised by

3 exceptional brutality and cruelty, his participation was systematic,

4 prolonged and premeditated and he abused his senior position" of SRK

5 Corps commander. Those were the words used by this Chamber to describe

6 the conduct of General Galic in Your Honours' judgement at paragraph 455.

7 There is nothing to distinguish between Galic and Milosevic

8 sufficient to warrant the imposition of a sentence anything less than

9 life. Indeed, for this case, the case of Galic provides the very

10 comparator that His Honour Judge Meron said was lacking in his dissenting

11 opinion in Galic. Respecting the dissenting opinions in that case, the

12 majority of Judges in the Appeals Chamber considered that these crimes

13 warranted the imposition of a life sentence.

14 In any event, the magnitude of these crimes, their cruelty and

15 their brutality, the effect on the entire population of Sarajevo for

16 14 months, Milosevic's leading role, his abuse of a high position of

17 authority demonstrate that a life sentence is warranted. Given that this

18 sentence is significantly more serious than a sentence marked in terms of

19 years, even 33 years, the Trial Chamber demonstrably erred in imposing

20 such a sentence.

21 We ask Your Honours to allow the appeal to quash the sentence and

22 impose a sentence of life imprisonment. Your Honours, those are my

23 submissions unless I can assist you or your colleagues.

24 JUDGE POCAR: I thank you.

25 I think it's time to break now. We break for 20 minutes, as was