Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Tuesday, 21 July 2009

 2                           [Appeals Hearing]

 3                           [Open session]

 4                           [The appellant entered court]

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

 6             JUDGE POCAR:  Good morning, everybody.

 7             Mr. Registrar, would you please call the case.

 8             THE REGISTRAR:  Good morning, Your Honours.  Good morning to

 9     everyone in the courtroom.  This is case number IT-98-29/1-A, the

10     Prosecutor versus Dragomir Milosevic.

11             JUDGE POCAR:  Thank you.

12             May I first ask Mr. Milosevic if he can hear me and follow the

13     proceedings through the translation.

14             THE APPELLANT: [Interpretation] Thank you, Your Honour.  Your

15     Honours, I can hear you very well and understand and I am able to follow.

16     Thank you.

17             JUDGE POCAR:  Thank you.

18             I now call for the appearances.  For the Prosecution, please.

19             MR. ROGERS:  Good morning, Your Honours.  Paul Rogers appearing

20     for the Prosecution, together with my learned friends Ms. Barbara Goy,

21     Mr. Francois Boudreault, and Mr. Matteo Costi, and our case manager

22     today, Ms. Lourdes Galicia.

23             JUDGE POCAR:  Thank you.

24             For the Defence.

25             MR. TAPUSKOVIC: [Interpretation] Good morning, Your Honours.  My

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 1     name is Branislav Tapuskovic, attorney-at-law, and I represent

 2     Mr. Dragomir Milosevic; and my assistant is Madam Branislava Isailovic.

 3     Thank you.

 4             JUDGE POCAR:  I thank you.

 5             Now, this is the appeal hearing in the case of the Prosecutor

 6     versus Dragomir Milosevic.  At the outset, I will briefly summarise the

 7     appeals which are pending before the Appeals Chamber and the manner in

 8     which we will proceed this morning.

 9             Both Mr. Milosevic and the Prosecution have appealed the trial

10     judgement rendered on 12th December, 2007, by Trial Chamber III composed

11     of Judge Robinson, Kesia-Mbe Mindua, and Harhoff.

12             The Trial Chamber found Mr. Milosevic guilty pursuant to

13     Article 7(1) of the Statute of the crimes of terror, Count 1; murder,

14     Counts 2 and 5; and inhumane acts, Counts 3 and 6.  As a consequence of

15     the conviction entered under Count 1, the Trial Chamber dismissed the

16     charges of unlawful attacks against civilians under Counts 4 and 7, as

17     impermissibly cumulative on the ground that the elements of the crime of

18     unlawful attack against civilians are fully encompassed by the crime of

19     terror.  The Trial Chamber imposed a single sentence of 33 years of

20     imprisonment.

21             The Trial Chamber, in reaching its verdict and sentence, found

22     that during the indictment period, the SRK under Milosevic's command was

23     responsible for continuously sniping and shelling the area of Sarajevo,

24     resulting in the killing and serious injury of many civilians.  It noted

25     that throughout the siege, the civilian population was subjected to

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 1     conditions of extreme fear and insecurity, which, combined with the

 2     inability to leave the city, resulted in deep and irremovable mental

 3     scars on that population as a whole.  The Trial Chamber concluded that in

 4     these circumstances, every incident of sniping and shelling for which the

 5     SRK was found responsible was deliberately conducted with the intent to

 6     terrorise the civilian population in Sarajevo.  It found that these acts

 7     also qualified as unlawful attacks against civilians and civilian

 8     population under Article 3 of the Tribunal's Statute.

 9             Further, the Trial Chamber found that the SRK's military campaign

10     in Sarajevo was a "classical illustration of a large-scale and organised

11     attack, that is, a widespread and systematic attack" constitutive of

12     crimes against humanity.  The Trial Chamber further concluded that

13     Milosevic's orders to target civilians in Sarajevo formed part of the

14     continuous strategy of sniping and shelling of civilians commenced under

15     Galic's command.  It also found that he planned and ordered those attacks

16     with the intent to spread terror among the population.

17             I will start by recalling Mr. Milosevic's appeal.  Mr. Milosevic

18     filed his Notice of Appeal on 11 January 2008 and his Appeal Brief on

19     14 August 2008.  The Prosecution filed its Response Brief on

20     23 September 2008.  Mr. Milosevic's reply was filed on 9 October 2008.

21     Public redacted versions of the confidential briefs have been

22     subsequently filed by both parties.

23             In his appeal, Mr. Milosevic seeks an acquittal of all charges.

24     He sets forth 12 grounds of appeal.  In his first ground of appeal, he

25     argues that the Trial Chamber misapplied the law on the crime of terror

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 1     and the crimes against humanity of murder and inhumane acts, violated the

 2     presumption of innocence, and failed to establish beyond reasonable doubt

 3     the essential elements of the crimes he was convicted of.

 4             In his second and third grounds of appeal, Milosevic further

 5     contends that the Trial Chamber violated Rule 89 of the Rules of

 6     Procedure and Evidence by making findings not supported by evidence on

 7     the record and failing to consider the evidence as a whole.

 8             In his fourth ground of appeal, Milosevic alleges that the

 9     Trial Chamber erroneously set out and applied the law with respect to the

10     civilian status of the trams targeted in sniping incidents, the

11     definition of "siege" and on the issue of his alibi defence.

12             Furthermore, with his sixth to 11th ground of appeal, Milosevic

13     contests the Trial Chamber's factual findings that areas of Sarajevo were

14     civilian zones, that the SRK was behind specific sniper fire or mortar

15     shelling, as well as the findings concerning the possession, use, and

16     origin of aerial bombs.

17             Finally, in his 12th ground of appeal Milosevic challenges the

18     Trial Chamber's findings that he ordered the sniping and shelling of

19     civilians.

20             On the matter of sentencing, addressed in his fifth ground of

21     appeal, Milosevic argues that the Trial Chamber wrongly considered the

22     elements of the crimes as aggravating factors.

23             The Prosecution responds that Milosevic's appeal should be

24     dismissed in its entirety.

25             Let me now turn to the Prosecution's appeal.

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 1             The Prosecution filed its Notice of Appeal on 31st December 2007

 2     and its Appeal Brief on 30 January 2008.  Milosevic responded on

 3     6 August 2008.  The Prosecutor replied to Milosevic's Response on

 4     12th August, 2008.

 5             The Prosecution raises a single ground of appeal, arguing that

 6     the Trial Chamber abused its discretion by imposing a manifestly

 7     inadequate sentence.  It requests that the original sentence be replaced

 8     by a sentence of life imprisonment.  In response, Milosevic argues that

 9     the facts underlying his convictions were not established beyond

10     reasonable doubt, rendering the sentencing matters moot.  In the

11     alternative, he insists that all the relevant mitigating circumstances

12     taken into account by the Trial Chamber should be maintained.

13             During this appeal briefing, the parties may argue the grounds of

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

15     However, I would urge the parties not to simply repeat verbatim or

16     summarise extensively what is in the briefs, as the Court is aware of the

17     contents of the briefs and has studied them.  I also wish to note that in

18     the addendum to the Scheduling Order of 6 July 2009, the Appeals Chamber

19     has invited the parties to address specific issues during this hearing,

20     issues that do not have to be restated here now.  This invitation is

21     made, I want to stress, without prejudice to any matter the parties or

22     the Appeals Chamber will wish to raise and in no way constitutes an

23     expression of an opinion of the Appeals Chambers on the merits of the

24     appeals.

25             I would now like to briefly recall the criteria applicable to

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 1     errors of fact and law alleged on an appeal.  The appeal is not a trial

 2     de novo and the appellants must not merely repeat the case from the trial

 3     level.  Rather, in accordance with Article 25 of the Statute, the

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

 5     invalidate the decision or alleged errors of fact occasioning a

 6     miscarriage of justice.  Additionally, it should be recalled that the

 7     appellants have an obligation to provide precise references to materials

 8     supporting their arguments on appeal.

 9             Now, this hearing will proceed according to the addendum to the

10     Scheduling Order issued on 6th July, 2009.  The Defence will present its

11     submissions this morning for one hour, 30 minutes.  Following a pause,

12     they will continue their submissions for another 30 minutes.  Afterwards,

13     the Prosecution will present its response for one hour, and after one

14     hour 30 minutes' pause, continue for one more hour.  And accordingly, the

15     hearing will be proceed as scheduled with the adjustments that may be

16     necessary if they occur.

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

18     could present their submissions in a precise and clear manner.  I wish to

19     remind the parties that the Judges may interrupt them at any time to ask

20     questions or the Judges may prefer to ask questions following each

21     party's submission.  Let me finally clarify that of course the parties

22     need not use all the time allotted to them if they believe it's not

23     necessary to make full use of it.

24             Having elaborated on the manner in which we will proceed today, I

25     would now like to invite the Defence to present submissions in support of

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 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

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 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

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 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

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 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.

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 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:

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 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

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 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.

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 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

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 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

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 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

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 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

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 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

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 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

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 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

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 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

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 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

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 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

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 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

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 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

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 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

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 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

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 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."

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 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

Page 150

 1     in the Scheduling Order, so at 4.15 we reconvene for the response of the

 2     Defence.

 3                           --- Recess taken at 3.54 p.m.

 4                           --- On resuming at 4.15 p.m.

 5             JUDGE POCAR:  Well, I give now the floor to the Defence for their

 6     response to the Prosecution appeal on sentence.  You have the floor.

 7             MR. TAPUSKOVIC: [Interpretation] Your Honours, can we move into

 8     closed session for a moment?  I have a reason why I'm asking for this.

 9             JUDGE POCAR:  [Microphone not activated]

10             THE INTERPRETER:  Microphone for His Honour.

11             Microphone, Your Honour, please.

12             JUDGE POCAR:  [Microphone not activated]

13                           [Defence counsel confer]

14             MR. TAPUSKOVIC: [Interpretation] Can we move into closed session?

15             JUDGE POCAR:  [Microphone not activated]

16             MR. TAPUSKOVIC: [Interpretation] For a couple of seconds.

17             JUDGE POCAR:  [Microphone not activated]

18             THE INTERPRETER:  Microphone for His Honour, please.

19             JUDGE POCAR:  Can we move into private session.

20                           [Private session]

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 151











11  Page 151 redacted. Private session.















Page 152

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13                           [Open session]

14             THE REGISTRAR:  Your Honours, I'm sorry for the interruption,

15     we're back in open session.

16             JUDGE POCAR:  Okay.

17             So, please, you can proceed with your submissions, with your

18     response.

19             MR. TAPUSKOVIC: [Interpretation] Thank you, Your Honours.  I wish

20     to address a matter that is very important.  As a lawyer in criminal law,

21     I had never come upon a case where before someone's guilt was established

22     I would be dealing with mitigating circumstances.  At any rate, there is

23     not a single act that a human being may commit which would not be subject

24     to judgement or assessment, especially in a case such as this one

25     involving horrific events transpiring in the former Yugoslavia.  In most

Page 153

 1     of these cases the circumstances indeed amounted to a war conflict.  It

 2     has always been sensitive matters when officers are brought before a

 3     Court who have themselves personally not done anything unlawful.

 4             I will try to deal with the matter at hand for the short period

 5     of time remaining.  The branch of law I was dealing with, criminal law,

 6     in Yugoslavia, at a time when it was still a fortunate country, the issue

 7     of mitigating circumstances was always a very important one.  I simply

 8     cannot understand how it is possible for someone practicing in criminal

 9     law to say that something had been adjudicated in one way in a different

10     case and that this should be applied to the matter at hand.  There are no

11     two identical cases in criminal law, there have never been two identical

12     cases.  This may be in the interests of the Prosecution to secure another

13     life imprisonment; however, I should like to avoid any comparisons

14     between this case and the Galic case.

15             At the time of trials, archives were opened and documents are

16     available which indicate that there were two warring parties in all these

17     events alleged in the indictment.  One mitigating factor could be on the

18     issue of alibi to mention that the accused was wounded when a tank shell

19     was fired from the Zuc hill from a distance of 2 to 3 kilometres,

20     impacting an observation post and hitting Dragomir Milosevic in the head.

21     He survived the impact but lost one eye.  This serves to indicate the

22     circumstances in which he had to work.  He was in a trench at the time of

23     combat activities, and it goes to show something that I've been

24     discussing the whole day, i.e., the circumstances prevailing in that

25     period.

Page 154

 1             The Trial Chamber showed that the offensive activities conducted

 2     throughout that time by the BH army, in particular between May and the

 3     end of the war, definitely end until August, the Trial Chamber concluded

 4     that these activities were not decisive in arriving at its findings on

 5     this issue.  However, it is not possible not to proceed from the fact

 6     that these combat activities - and I do have sympathy for all those

 7     involved, all of us who hail from the area do feel for the individuals

 8     who experienced those times -- still, I cannot see how it can have any

 9     significance -- how it cannot have significance.  The fact that thousands

10     of civilians were killed on the Serb side.  We led evidence to that

11     effect.

12             This was a conflict.  War engenders fear on both sides.  One

13     needs to bear in mind that these events necessarily instilled fear on

14     both sides.  I did not called a single officer.  Had I managed to call

15     40 to 50 officers here who, together with Dragomir Milosevic, spent the

16     entire war in trenches, in their own yards, in their own front yards

17     outside their homes, there is not one among them who has not lost a

18     brother or a father.

19             Going back to what the Prosecutor said a moment ago, a shell was

20     fired because the order stated that fire should be opened on civilians.

21     Well, nowhere was it written that civilians should be targeted.  When

22     witnesses were testifying about civilians getting killed, there was

23     mention of the fact that the media kept reporting that civilians are

24     targeted.  The orders themselves stated that fire should be opened on

25     personnel.  I spoke of these orders repeatedly today.

Page 155

 1             Let's look at order 417, page 4 of the English version.  Each of

 2     the columns contain orders by General Prevljak to act or fire upon forces

 3     or personnel, upon men.  This is the usual army jargon, and if you look

 4     at each of these orders you will see that what is mentioned there is men

 5     or forces and not civilians.  There is nothing else that I can add on the

 6     issue of combat activities.

 7             Let me state that 40.000 Serbs lived in that town, and these were

 8     brothers and sisters and relatives of the people who were on the other

 9     side of the front line.  Do you think that this sort of activity could

10     have been employed on Sarajevo when people had their relatives living

11     there?  I'm referring to document 415.  There was fear present.  There

12     was the massacre in Kazani, et cetera.  There were such cases spreading

13     fear, but there is absolutely nothing that could be construed in order to

14     interpret the conduct of an individual and to base a sentence on that.

15             Galic was imposed a sentence of 20 years of imprisonment.  One of

16     the Judges in that case wanted a ten-year sentence of imprisonment for

17     him.  It is my position that you need to take these circumstances into

18     consideration.  Does a 70-year-old man need a life imprisonment and can

19     he be imposed life imprisonment in view of these circumstances?

20             To draw such parallels and to formulate such briefs where it is

21     stated that the Trial Chamber established that the crime was committed --

22     well, these are all individual circumstances.  We can't have

23     circumstances across the board.  For a man of his age who has spent this

24     much time in detention -- well, I know that you will be considering all

25     these factors before you.

Page 156

 1             Nermin Divovic, a boy of some 10 years of age met his end indeed

 2     in a tragic way.  I was, in my time, dealing with a great number of

 3     serious crimes, and I know that when it comes to acts qualified as murder

 4     there are certain allegations in the indictment that would not have even

 5     passed the test of the investigation stage.  When it comes to

 6     Nermin Divovic, the boy who tragically died in the way the Prosecution

 7     described, the autopsy report compellingly shows and indisputably

 8     shows - and this was also shown by expert witnesses and even though they

 9     were expert witnesses of the Defence this does not lessen their

10     expertise - the autopsy report, and it's the only autopsy report of that

11     sort which exists in the evidence, the autopsy report shows that there

12     were two trajectories, one passing through the body of the mother, who

13     survived, and this trajectory was completely in parallel with the ground;

14     the other trajectory passed behind the boy's head and went downward

15     toward the ground.

16             Throughout the war stories were manufactured of how children were

17     being killed in the ABiH-controlled part of Sarajevo.  I did refer to

18     that earlier on when I talked about the victims in the BH-held Sarajevo.

19     It will be up to you to evaluate the evidence, but let me refer to the

20     fact that two bullets in this case arrived from the BH army territory,

21     from the side which is opposite to where this notorious Metalka building

22     is located.  However, this incident had to be widely reported and it had

23     to be reported in the following day in the newspapers that the Serbs had

24     managed to kill a child with one bullet.  That's one matter.  The other

25     matter is how Your Honours will be deliberating on the Markale incident.

Page 157

 1             Even Rupert Smith himself said that it is not far-fetched to

 2     entertain the idea that it might have been Bosniaks attacking Bosniaks.

 3     Nicolai, including others, testified that these were not rumours but that

 4     this was the talk of Sarajevo itself, that the Bosniak forces, the forces

 5     stationed in Sarajevo, were prone to utilising their own people for

 6     political and military purposes.  And then if we look at all the victims

 7     who were allegedly found in that place - I wouldn't want to go back to

 8     the analysis that has to do with that - but one can definitely speak

 9     about it in a dramatic and affecting way that the Prosecutor refers to

10     it -- anyway, all the matters that have to do with Markale, please look

11     at the two photographs that I indicated and you will see that those two

12     photographs cannot be linked with the place where the incident occurred.

13     It was not possible to find a person in that place who was killed by

14     buckshot from a hunting rifle or a man who had been shot by a bullet in

15     some other location.

16             When you look at it in that way I think that some things should

17     not be left out of your review in some way, and I'm hoping that you will

18     re-evaluate all of these things, and then I hope that what I have said is

19     sufficient and that when you are making your finding on the sentence, I

20     think that all that has to do with the events that we referred to and

21     that the evidence that has to do with will go in support of everything

22     that I said at the beginning, and that is that you would first need to

23     establish whether this was found to be a civilian zone beyond all

24     reasonable doubt and then only after that would you need to approach the

25     evaluation of all the other matters.

Page 158

 1             Thank you.

 2             MR. ROGERS:  Your Honours, perhaps before you call on

 3     Mr. Milosevic, if he wishes to say anything, we could go back into

 4     private session and I can deal with the matter that was raised.

 5             JUDGE POCAR:  Okay.  That's fine.

 6             Can we go into private session.

 7                           [Private session]

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22                           [Open session]

23             THE REGISTRAR:  Your Honours, we're back in open session.

24             JUDGE POCAR:  Thank you.

25             So the Prosecution now has ten minutes to reply.

Page 160

 1             MR. ROGERS:  Your Honours, there's nothing that I would wish to

 2     add.  It's the submissions that I've already made, so I waive the right

 3     to reply to any other matters.

 4             JUDGE POCAR:  I thank you.

 5             Now we come to the end of the submissions of the parties.

 6     According to the Scheduling Order now I will turn to Mr. Milosevic, if he

 7     wants to address briefly personally the Appeals Chamber for no more than

 8     ten minutes he's allowed to do that.

 9             THE APPELLANT: [Interpretation] Your Honours, I thank you for

10     this opportunity to address you.  I'm going to speak a few words.  I

11     accept -- I expect them to be understood only in the way that I meant

12     them to be understood.  I would like to say something about the true seal

13     of events on the Sarajevo front.  I'm happy that it is no longer a front,

14     that it is a front that is in the past.  Very briefly I would like to say

15     something about my life.

16             I came to Sarajevo when I was 14 years old, where I continued my

17     schooling.  I had considerable support from my uncle who lived in

18     Sarajevo.  I continued my education in Belgrade and then again in

19     Sarajevo.  After that, my whole work and life were connected to Bosnia

20     and Herzegovina and primarily Sarajevo.  I fell in love in Sarajevo for

21     the first time.  I formed my family and I raised and educated my

22     children.  Sarajevo became my town and the town of my family.  It's a

23     place where I had my family, relatives, friends, colleagues, associates,

24     my best man, and neighbours.  In Sarajevo I contributed the taxes and the

25     tax for the construction of Sarajevo, just like any other regular citizen

Page 161

 1     of Sarajevo paid his dues.  I cooperated equally and socialised equally

 2     with everyone.

 3             I would also like to add - perhaps it's not that important - but

 4     I would say that my whole property was seized and taken from me in

 5     Sarajevo, my property and the property of my family.  Sarajevo is an

 6     integral part of who I am, a part of my personality.

 7             I expected that the search for truth and justice would have

 8     greater priority before this Tribunal.  The trial proceeded at a

 9     considerable pace and it was as if a record was being sought to complete

10     the trial.  I didn't have enough time for contacts with my lawyers.  I

11     was even denied to send notes in order to direct my lawyers in the

12     courtroom.  It seems that the evidence and the testimony of Defence

13     witnesses did not mean that much.  I feel that the procedure was

14     irregular and also the attitudes towards me, at least that's how I

15     experienced it.

16             My colleague combatants and my senior officers spoke in a manner

17     that would indicate that they were victims, but they were not understood

18     correctly.  There was the question of why they were brought to testify in

19     the first place.  It was essential to open up some of these matters more

20     widely.  Everything seemed to be happening in a certain context,

21     Your Honour.  There is also the fact that many factors and powerful

22     figures did not wish a peaceful resolution for the Sarajevo region.  The

23     government and the military leadership of Bosnia and Herzegovina sought

24     solutions exclusively on the battle-field.  The cease-fire and the end of

25     hostilities could have happened at any point in time.  I was never an

Page 162

 1     obstacle to such a way out.

 2             There are indications and confirmation that I had given my all to

 3     implement the Dayton Peace Accords.  This role of mine was seen properly

 4     by the French General Bachelet who knew how to appreciate.  (redacted)

 5     (redacted)

 6     (redacted)  General Bachelet, an honourable man,

 7     could see that the Sarajevo Romanija Corps and the people it was

 8     protecting in order to carry out this work had accepted to take their own

 9     dead from the ground, to gather them up, and as such move out in order to

10     make the implementation of this agreement possible.

11             The Defence placed all the documents at the disposal of this

12     Trial Chamber, the documents of the Sarajevo Romanija Corps on the one

13     hand and the documents of the 1st Corps of the Bosnia and Herzegovina

14     army on the other side.  And it can be clearly seen that the 1st Corps

15     and other units of the B&H army, from the 1st of August, 1994, until the

16     end of hostilities in 1995, were planning, conducting, and assaulting

17     along the entire Sarajevo front.  At that same time the Sarajevo Romanija

18     Corps did not conduct a single attack.  It was just working and fighting

19     to prevent a breakthrough by the other side or the advances by the other

20     side.

21             Your Honours, I, as a Corps commander, know best the danger that

22     we were in.  Officially I would like to state that it was even worse for

23     us than had we been in hell.  At the turbulent Sarajevo front and in the

24     heat of attacks of the forces of the 1st Corps, the MUP forces, the

25     HVO forces, and other components of the B&H army, it was not possible to

Page 163

 1     know if there would be advances from the north-west encircling Vogosca,

 2     Ilijas, Rajlovac, Ilidza, and Hadzici, or whether the forces of the

 3     12th Division of the land army and the MUP, there would be an advance out

 4     of Sarajevo to cut the roads, surround Grbavica, or whether the forces of

 5     the 14th Division of the land army from Igman would set off for Ilidza,

 6     Igman, or would they be directed towards Trnovo.

 7             All of these areas were defended by the Sarajevo Romanija Corps.

 8     The commander of the 12th Division of the land army of the B&H army, on

 9     the 1st of March, 1995, decided with their brigades to leave Sarajevo to

10     carry out attacks along selected axes.  The main reason cited by

11     him - and this has to be cited in the decisions - is to assist, provide

12     help to the 5th Corps in Bihac and this is why this was done.  I am

13     asking myself -- this document, D418, I'm asking who was threatening who

14     in this case and was any attention paid to the fact that when somebody

15     launches an attack without any reason, are they doing that because

16     they're under threat or because they are acting on their own whim.  This

17     document was admitted.

18             Commanders of the Bosnia and Herzegovina army at all levels made

19     decisions in their combat orders --

20             JUDGE POCAR:  Mr. Milosevic, I have to draw your attention to the

21     clock.  Your ten minutes have expired.  Can you conclude in one minute,

22     please.

23             THE APPELLANT: [Interpretation] Your Honour, I would just like to

24     ask you to be allowed to finish.  I think I'm almost at the end, but if

25     possible I don't want to finish without completing what I wish to say and

Page 164

 1     what you have given me the opportunity to say.  I kindly request to be

 2     allowed to do that.

 3             JUDGE POCAR:  Provided you remain within the time you have --

 4             THE APPELLANT: [Interpretation] -- they brought -- yes.

 5             The advances were based on decisions to cut certain axes,

 6     surround certain sectors, concentric fire, sniper fire, destroy, and come

 7     out of the lines, join the other forces, and so on -- well, there's

 8     nothing illegal about that.  This is something that assault forces do,

 9     but it's logical for the Sarajevo Romanija Corps, then, in that case to

10     defend itself.

11             What I am saying I am saying on the basis of documents where this

12     is stated.  The B&H army in the Sarajevo front, primarily the 1st Corps,

13     had a force of equivalent of 33 brigades, hill brigades, manoeuvring

14     brigades, motorised brigades, Muslim brigades, guards brigades, special

15     brigades, HVO detachments, and Mujahedin detachments.  These units were

16     named glorious units and chivalrous units, and they were all to be faced

17     by the Sarajevo Romanija Corps, who had to defend an area of

18     8.240 kilometres with its eight brigades, the Sarajevo front.  They

19     wanted to have a resolution by force.  They wanted to bring a resolution

20     by force, by using their pretty powerful forces.

21             Statements, documents, books that were written, as well as

22     assault actions, affirmed the option [as interpreted] that the Bosnia and

23     Herzegovina army had elected General Rasim Delic the commander of that

24     army, stated:

25             "Muslims will continue to fight regardless of peace initiatives.

Page 165

 1     The American peace initiative has no head or tail."

 2             This statement was given on the 28th of August, 1995, in

 3     Jablanica.  This assault operation was carried out, it was called Tegbir,

 4     it was initiated on the 14th of June.  Here I'm only noting that its

 5     consequence were many casualties on both sides.  I did not carry out this

 6     action.  I had to defend myself or oppose such a force.

 7             I know that the Prosecution should not be creating an image of

 8     the accused as a monster.  I don't know what exactly they wanted to do

 9     with this story about the residence of my children.  I do not like these

10     messages.  It is not tenable either that a protected witness, a highly

11     positioned official of the United Nations proclaims me a drunkard and in

12     written documents openly calls me a bandit.  I cannot stand drink, and if

13     he had perhaps mistaken our identities, then we need to see if his

14     testimony is accurate because he qualified me with epithets that cannot

15     really be applied to me, not even close.

16             JUDGE POCAR:  Mr. Milosevic, can you conclude your address,

17     please.

18             THE APPELLANT: [Interpretation] Very well, Your Honour.  Thank

19     you.

20             It is my deep regret and I condemn the numbers of people who were

21     wounded and killed.  I feel this deeply in my soul.  I know that no

22     mother gave birth to anyone so that they would get killed.  It's sad to

23     kill an animal or to break a tree, never mind to kill a human being.  And

24     I express my full readiness to pray on the graves of those who were

25     killed and to pray for the fate of seriously disabled persons.  I was

Page 166

 1     deeply unhappy when I saw the suffering of people and even now I feel

 2     discomfort and pain in my soul.  I've seen much suffering of fighters on

 3     the field of battle from the 1st Corps of the Bosnia and Herzegovina army

 4     and those from the Sarajevo Romanija Corps.  I know very well what it

 5     means for innocent civilians to suffer.  These are sorry and sad events.

 6             And in such a forceful conflict unfortunately I cannot go without

 7     mentioning the military casualties.  These are human beings too.  If you

 8     permit me one more minute to give an example.

 9             On the 18th of September, 1994, forces of the Bosnia and

10     Herzegovina army, of the 12th Division of that army, organised a

11     break-through towards the east.  In that advance that they executed and

12     the support they provided to those people, they actually killed seven

13     people.  I watched those people of theirs and I felt bad for them just

14     like I would feel bad about any person, about the way that they were

15     being treated in a building of -- there were eight soldiers of the

16     Sarajevo Romanija Corps who were killed and that were returned to us only

17     when they -- the bodies had began to decompose.

18             I'm talking about victims in each place and in each set of

19     circumstances.  If something -- if this is something that anybody will

20     accept and to take into account, I'm deeply regretful about those victims

21     and believe that that is something that should not have happened.  I was

22     not the cause of the demise of those victims, but I'm being held

23     responsible here before this Trial Chamber for what the Prosecution is

24     ascribing to me.

25             On the 1st of May, 1993, in Sarajevo, it was announced who war

Page 167

 1     criminals were.  In 1992, the names of war criminals were announced.

 2     Besides Kukanjac and Radovan Karadzic, it was also announced that

 3     Dragomir Milosevic was also a war criminal too, who, up until that time,

 4     did not fire a single bullet with his units.  I interpret that as

 5     something that was meant to happen.  It was supposed to happen and that

 6     I am a -- a case where it is impossible to prove adequately what happened

 7     and who was supposed to do what.

 8             I apologise for taking up so much time, but I felt compelled to

 9     state these things, even though they may not be taken into account at

10     all.

11             JUDGE POCAR:  I thank you.  Yes, Prosecutor, sorry.

12             MR. ROGERS:  Your Honours, I'm sorry to rise again.  We need to

13     go into private session briefly, please.

14             JUDGE POCAR:  Yes, we can go to private session.

15                           [Private session]

16   (redacted)

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Page 168

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 5                           [Open session]

 6             THE REGISTRAR:  Your Honours, we're back in open session.

 7             JUDGE POCAR:  [Microphone not activated].

 8             THE INTERPRETER:  Microphone, please, Your Honour.

 9             JUDGE POCAR:  There's always something wrong.

10             This concludes, I repeat, the appeals hearing in this case.  I

11     wish to express my -- on behalf of the Bench, my gratitude to the parties

12     for their submissions, as well as our thanks to all those cooperated with

13     the organisation of the hearing.  Special thanks to the interpreters who

14     made the dialogue between the parties and the Bench possible.  The appeal

15     judgement will be rendered in due course.

16             The Appeals Chamber will now rise.

17                           --- Whereupon the Appeals Hearing

18                           adjourned at 5.02 p.m.