Case No. IT-98-29-T

IN TRIAL CHAMBER I

Before:
Judge Alphons Orie
Judge Amin El Mahdi
Judge Rafael Nieto-Navia

Registrar:
Mr. Hans Holthuis

Judgement Of:
5 December 2003

PROSECUTOR

v.

STANISLAV GALIC

_________________________________

JUDGEMENT AND OPINION

_________________________________

The Office of the Prosecutor:

Mr. Mark Ierace
Mr. Chester Stamp
Mr. Daryl Mundis
Ms. Prashanthi Mahindaratne
Mr. Manoj Sachdeva

Counsel for the Accused:

Ms. Mara Pilipovic
Mr. Stéphane Piletta-Zanin

    I. INTRODUCTION

  1. Trial Chamber I of the International Tribunal (the “Trial Chamber”) is seized of a case which concerns events surrounding the military encirclement of the city of Sarajevo in 1992 by Bosnian Serb forces.

  2. The Prosecution alleges that “The siege of Sarajevo, as it came to be popularly known, was an episode of such notoriety in the conflict in the former Yugoslavia that one must go back to World War II to find a parallel in European history. Not since then had a professional army conducted a campaign of unrelenting violence against the inhabitants of a European city so as to reduce them to a state of medieval deprivation in which they were in constant fear of death. In the period covered in this Indictment, there was nowhere safe for a Sarajevan, not at home, at school, in a hospital, from deliberate attack”.1

  3. In the course of the three and a half years of the armed conflict in and around Sarajevo, three officers commanded the unit of the Bosnian-Serb Army (“VRS”) operating in the area of Sarajevo, the Sarajevo Romanija Corps (“SRK”). The second of those three officers, Major-General Stanislav Galic, is the accused in this case (“the Accused”). He was the commander for the longest period, almost two years, from around 10 September 1992 to 10 August 1994. The Prosecution alleges that over this period he conducted a protracted campaign of sniping and shelling against civilians in Sarajevo. Two schedules to the Indictment “set forth a small representative number of individual incidents for specificity of pleading”.2 At the end of the Prosecution case and pursuant to Rule 98 bis of the Rules of Procedure and Evidence of the International Tribunal, the Trial Chamber decided upon the Defence Motion for Acquittal that the Prosecution had failed to prove some of these scheduled sniping incidents.3

  4. The Prosecution alleges that General Galic incurs individual criminal responsibility under Articles 7(1) and 7(3) of the Statute for his acts and omissions in relation to the crime of terror (count 1), attacks on civilians (counts 4 and 7), murder (counts 2 and 5) and inhumane acts (counts 3 and 6) committed against civilians in the city of Sarajevo.4

  5. The Trial Chamber’s task is to decide whether the Prosecution’s allegations that SRK personnel committed the criminal acts alleged in the Indictment have been proved beyond reasonable doubt. It must then decide what, if any, criminal responsibility General Galic incurs for any such criminal acts committed by SRK personnel.

  6. This Judgement is rendered by a majority of the Trial Chamber’s judges.5 Judge Nieto-Navia, partly dissenting, appends his opinion to this Judgement. Portions of this Judgement where he dissents are mentioned as that of the Majority of the Trial Chamber (or the “Majority”).

  7. This Judgement is divided into eight Parts. Part I consists of this Introduction. Part II provides a legal framework for the making of legal findings on the facts to be set out in the following part. In this part, the Trial Chamber considers the legal elements of violations of the laws or customs of war and of crimes against humanity, then determines under what circumstances an accused can be convicted for more than one crime based upon the same set of facts, and lastly examines the principles affecting the attribution of criminal responsibility. The factual findings of the Trial Chamber are contained in Part III, beginning with general observations concerning terminology and evidence; they continue with a narrative overview of the events leading to the virtually complete encirclement of the ABiH-held parts of Sarajevo; the facts of the present case follow, in order to establish whether a campaign of sniping and shelling against civilians was conducted in Sarajevo by SRK-forces during the Indictment Period and whether it aimed at spreading terror as alleged by the Prosecution; finally, the Trial Chamber sets out its legal findings, namely whether the facts found, if any, constitute crimes. In Part IV of this Judgement, the Trial Chamber states its legal findings as to the criminal responsibility of the Accused. Part V addresses matters relating to sentencing and Part VI sets forth the disposition. Part VII set forth the separate and dissenting opinion of Judge Nieto-Navia. Finally Part VIII contains four Annexes: the Indictment against General Galic, the procedural history of the case, a glossary of terms and cases, and a set of two maps which are not authoritative and do not necessarily reflect any finding of the Trial Chamber but are attached exclusively in order to assist readers to better orient themselves.

    II. APPLICABLE LAW

  8. In this second part the Trial Chamber examines elements of the crimes charged in the Indictment under Articles 3 and 5 of the Statute.

    1. Prerequisites of Article 3 of the Statute

  9. For a crime to be adjudicated under Article 3 of the Statute (violation of the laws and customs of the war) the Trial Chamber must determine that a state of armed conflict existed at the time the crime was committed and that the crime was “closely related” to the armed conflict.6 According to the Appeals Chamber, an “armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State”.7

  10. In the Tadic Jurisdiction Decision, the Appeals Chamber held that “Article 3 is a general clause covering all violations of humanitarian law not falling under Article 2 or covered by Articles 4 or 5”8 and that it “functions as a residual clause designed to ensure that no serious violation of international humanitarian law is taken away from the jurisdiction of the International Tribunal.”9 Article 3 thus refers to a broad category of offences, providing a merely illustrative list in the article itself.10

  11. According to the same Appeals Chamber Decision, for criminal conduct to fall within the scope of Article 3 of the Statute, the following four conditions (“the Tadic conditions”) must be satisfied:

    (i) the violation must constitute an infringement of a rule of international humanitarian law;

    (ii) the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met;

    (iii) the violation must be “serious”, that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim; and

    (iv) the violation must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule.11

    The Tadic conditions limit the jurisdiction of the Tribunal to violations of the laws or customs of war that are at once recognized as criminally punishable and are “serious” enough to be dealt with by the Tribunal.

  12. The Indictment charges the Accused with violations of the laws or customs of war under Article 3 of the Statute, namely with one count of “unlawfully inflicting terror upon civilians” (Count 1) and with two counts of “attacks on civilians” ( Counts 4 and 7) pursuant to Article 51 of Additional Protocol I and Article 13 of Additional Protocol II to the Geneva Conventions of 1949. These offences are not expressly listed in Article 3 of the Statute. Starting with the crime of attack on civilians, the Trial Chamber will determine whether the offence can be brought under Article 3 of the Statute by verifying that the four Tadic conditions are met. The Trial Chamber will also inquire into the material and mental elements of the offence. It will then repeat this exercise for the crime of terror.

    2. Attack on Civilians as a Violation of the Laws or Customs of War

    (a) Introduction

  13. Count 4 of the Indictment reads:

    Violations of the Laws or Customs of War (attacks on civilians as set forth in Article 51 of Additional Protocol I and Article 13 of Additional Protocol II to the Geneva Conventions of 1949) punishable under Article 3 of the Statute of the Tribunal.

  14. The paragraph introducing Count 4 alleges that the Accused, General Galic, as commander of the SRK, “conducted a coordinated and protracted campaign of sniper attacks upon the civilian population of Sarajevo, killing and wounding a large number of civilians of all ages and both sexes, such attacks by their nature involving the deliberate targeting of civilians with direct fire weapons.”

  15. Count 7 of the Indictment is in terms identical to Count 4, except that the paragraph preceding Count 7 alleges that the Accused “conducted a coordinated and protracted campaign of artillery and mortar shelling onto civilian areas of Sarajevo and upon its civilian population. The campaign of shelling resulted in thousands of civilians being killed or injured.”

    (b) First and Second Tadic Conditions

  16. Counts 4 and 7 of the Indictment are clearly based on rules of international humanitarian law, namely Article 51(2) of Additional Protocol I and Article 13(2 ) of Additional Protocol II. Both provide, in relevant part, that: “The civilian population as such, as well as individual civilians, shall not be made the object of attack.” The first Tadic condition, that the violation must constitute an infringement of a rule of international humanitarian law, is thus fulfilled.

  17. As for the second Tadic condition, that the rule must be customary in nature or, if it belongs to treaty law, that the required conditions must be met, the Prosecution claims that the parties to the conflict were bound by Article 51 of Additional Protocol I and Article 13 of Additional Protocol II as a matter of both treaty law and customary law.12 In relation to the latter, “the prohibition on attacks against civilians [...] in Article 51 and 13 of Additional Protocols I and II reflect[s] customary international law applicable to all armed conflicts, international or non-international in character, at the time the offences material to the present Indictment are alleged to have been committed.”13 The Prosecution further submits that, should the conflict be found to be international, Additional Protocol I would apply as a matter of treaty law; or, should the conflict be found to be internal, Additional Protocol II would apply as a matter of treaty law and moreover the relevant provisions of Additional Protocol I would also apply because the parties to the conflict were bound by an agreement concluded under the auspices of the ICRC on 22 May 1992 (“the 22 May Agreement”) incorporating those provisions.14 According to the Prosecution, it was for this reason that it did not seek to prove at trial the international or non-international character of the conflict.15 During closing arguments, in response to questions put by the Trial Chamber regarding the applicability of the agreement of 22 May 1992, the Prosecution said that the parties to the conflict specifically agreed to abide by those provisions irrespective of whether Additional Protocol I would otherwise be applicable by its terms to the conflict in Bosnia.16

  18. The Defence at first did not dispute that “both parties to the armed conflict were bound to uphold the provisions of the Geneva Conventions and the Additional Protocols I and II”,17 although it did not specify whether this was on the basis of treaty or custom. The Defence took a different position in its Final Brief. There it claims that “the former JNA was not a participant in this armed conflict and that the conflict escalated after the withdrawal of the JNA from Bosnia and Herzegovina on 19 May 1992.”18 It qualifies the conflict as a “civil war with some elements of religious war”.19 Additionally, the Defence submits that “[n]o matter the content of the Agreement dated 22 May 1992, which indicates on [a] readiness to apply principles of protection foreseen by [...] Additional Protocols I and II, the Defence considers that Additional Protocol I could not be applied in relations between the belligerent parties”,20 since Additional Protocol I is limited in its applicability to international conflicts.21 It further states that “it is quite clear that regulations of Additional Protocol II have to be applied, not International Custom Law.”22 During closing arguments the Defence did not take a clear position regarding the applicability of the 22 May Agreement, although it expressed “some doubt” as to its status.23

  19. The jurisprudence of the Tribunal has already established that the principle of protection of civilians has evolved into a principle of customary international law applicable to all armed conflicts.24 Accordingly, the prohibition of attack on civilians embodied in the above-mentioned provisions reflects customary international law.25

  20. Moreover, as explained below, the same principle had also been brought into force by the parties by convention.

  21. Both warring parties were armed forces in the territory of a State which was originally part of the Socialist Federal Republic of Yugoslavia. The SFRY had ratified the Additional Protocols.26 The first Article of each Protocol states its scope of application. Additional Protocol I regulates international armed conflicts whereas Additional Protocol II regulates non-international armed conflicts.27 Parties to an armed conflict can also, by agreement, bring into force provisions of Additional Protocol I, regardless of the nature of the conflict.28

  22. The Trial Chamber does not deem it necessary to decide on the qualification of the conflict in and around Sarajevo. It notes that the warring parties entered into several agreements under the auspices of the ICRC. The first of these was the 22 May Agreement, by which the parties undertook to protect the civilian population from the effects of hostilities and to respect the principle prohibiting attacks against the civilian population.29 With regard to the conduct of hostilities, they agreed to bring into force, inter alia, Articles 35 to 42 and 48 to 58 of Additional Protocol I.30

  23. The Trial Chamber, being obliged ex officio to satisfy itself of the validity of this agreement as a source of applicable law, takes account of the fact that, in its letter dated 12 June 1995 addressed to the then Prosecutor of the Tribunal, Richard Goldstone, the ICRC confirmed that the formal conditions required for the entry into force of this agreement had been fulfilled.31

  24. Moreover, the parties to the 22 May Agreement reiterated their commitment to be bound by the agreement and to implement its provisions. The 22 May Agreement was concluded by representatives of the Republic of Bosnia-Herzegovina, the Serbian Democratic Party, and the Croatian Democratic Community. The same three parties, by the same representatives,32 subsequently signed three agreements and one declaration, the subject-matter of which was the implementation of the 22 May Agreement. On 23 May 1992, the parties convened “to discuss the implementation of the Agreement of 22 May 1992” and signed another agreement whereby they decided to each appoint a liaison officer to form a commission which would work under the auspices of the ICRC towards the resolution of humanitarian issues.33 The parties convened again on 4 to 6 June 1992 and concluded an agreement dated 6 June (“the 6 June Agreement ”) whereby they adopted a plan of action designed to ensure the safety of the ICRC while carrying out its activities. To this end the agreement specifies that the parties must “ensure regular meetings of the Liaison Officers’ Commission, organized under ICRC’s auspices”,34 “enforce respect for the red cross emblem, in accordance with Article 3 of Agreement No. 1 signed in Geneva on 22 May 1992”,35 and “undertake to ensure that the principles and rules of international humanitarian law and, in particular, Agreement No. 1 of 22 May 1992 are known to all combatants and to the civilian population”.36 On 27 August 1992, at a conference in London, each party37 also signed an identically phrased unilateral declaration called the “Programme of Action on Humanitarian Issues Agreed Between the Co-Chairmen to the Conference and the Parties to the Conflict” (the “Programme of Action on Humanitarian Issues ”). By this declaration each party recognized that:

    (i) all parties to the conflict are bound to comply with their obligations under International Humanitarian Law and in particular the Geneva Conventions of 1949 and the Additional Protocols thereto, and that persons who commit or order the commission of grave breaches are individually responsible […]

    (viii) that all such action should be in accordance with the agreement with the parties reached in Geneva on 22 May under auspices of the ICRC.38

    Finally, on 1 October 1992, the parties concluded an “Agreement on the Release and Transfer of Prisoners”, “on the basis of the Agreement of 22 May 1992.” The preamble to this agreement further refers to Chapter IV of the 6 June Agreement and the humanitarian plan of action accepted by the parties’ leaders in London on 27 August 1992.39

  25. The Trial Chamber finds that by virtue of the 22 May 1992 Agreement the parties to the conflict clearly agreed to abide by the relevant provisions of Additional Protocol I protecting civilians from hostilities. Therefore, Article 51, along with Articles 35 to 42 and 48 to 58 of Additional Protocol I, undoubtedly applied as conventional law between the parties to the conflict, including the VRS and the ABiH. The Trial Chamber thus finds that the second Tadic condition is met.

    (c) Third Tadic Condition

  26. The third requirement of the Tadic Jurisdiction Decision is that the breach of the rule must be “serious”, that is to say, it must constitute a breach of a Rule protecting important values and the breach must involve grave consequences for the victim.40

  27. The act of making the civilian population or individual civilians the object of attack (such as attacks committed through a campaign of sniping and shelling as alleged in the Indictment), resulting in death or injury to civilians, transgresses a core principle of international humanitarian law and constitutes without doubt a serious violation of the rule contained in the relevant part of Article 51(2) of Additional Protocol I. It would even qualify as a grave breach of Additional Protocol I.41 It has grave consequences for its victims. The Trial Chamber is therefore satisfied that the third Tadi c condition is fulfilled.

    (d) Fourth Tadic Condition

  28. In accordance with the fourth Tadic condition, a violation of the rule under examination must incur, under customary or conventional law, the individual criminal responsibility of the person breaching the rule.42

  29. The Appeals Chamber has found that “customary international law imposes criminal liability for serious violations of common Article 3, as supplemented by other general principles and rules on the protection of victims of internal armed conflict, and for breaching certain fundamental principles and rules regarding means and methods of combat in civil strife.”43 It has further expressly recognized that customary international law establishes that a violation of the principle prohibiting attacks on civilians entails individual criminal responsibility.44

  30. It should be noted that the intention of the States parties to Additional Protocol I to criminalize violations of Article 51(2) of Additional Protocol I is evidenced by the fact, mentioned above, that an attack on civilians is considered a grave breach of the Protocol, as defined by Article 85(3)(a) therein.45 The Trial Chamber has also noted that the “Programme of Action on Humanitarian Issues ” recognized that those who committed or ordered the commission of grave breaches were to be held individually responsible.46

  31. Moreover, national criminal codes have incorporated as a war crime the violation of the principle of civilian immunity from attack.47 This war crime was punishable under Article 142 of the 1990 Penal Code of the Socialist Federal Republic of Yugoslavia.48 In the Republic of Bosnia-Herzegovina it was made punishable by a decree-law of 11 April 1992.49 National military manuals also consistently sanction violations of the principle.50 For instance, paragraph 33 (2) of the 1988 Yugoslavia Regulations on the Application of International Laws of War in the Armed Forces of the SFRY condemns as war crimes “attack on civilians” and “deliberately bombing of the civilian population”.51

  32. It therefore follows that serious violations of the principle prohibiting attacks on civilians incur individual criminal responsibility under the laws of war, and that this was already the case at the time relevant to the Indictment. The fourth Tadic condition is met.

    (e) Material and Mental Elements

  33. The Trial Chamber will now consider the material and mental elements of the offence of attack on civilians.

    (i) Arguments of the Parties

  34. The Prosecution submits that the crime of attack on civilians comprises the following elements: (1) an attack resulted in civilian deaths, serious injury to civilians, or a combination thereof; (2) the civilian status of the population or of individual persons killed or seriously injured was known or should have been known to the perpetrator; and (3) the attack was wilfully directed at the civilian population or individual civilians.52 It relies on the second paragraph of Article 51 of Additional Protocol I as the legal foundation of this offence.53

  35. The Prosecution invokes Articles 50 and 52 of Additional Protocol I to define the notions of civilians, civilian objects, and military objectives in the context of this crime.54 It maintains that an attack is unlawful if the victims are civilians not taking active part in hostilities, and that the presumption enshrined in Article 50(1) of Additional Protocol I is the basis for determining a victim’s civilian status.55 Among the factors relevant to establishing the perpetrator’s knowledge of the status of the victims are: “(1) the physical appearance of the victims, including their gender, age, physical condition, dress and the character of the objects in their possession or close to them; and (2) the actions of the victims at the time they are killed or injured.”56

  36. The Prosecution maintains that the principles of distinction and proportionality, as set forth in the four 1949 Geneva Conventions and the Additional Protocols thereto, “lie at the heart of unlawful attack charges”.57 It states that the prohibition of attack on civilians is founded upon the principle of distinction, which requires commanders to distinguish between the civilian population and combatants and between civilian objects and military objectives at all times, and accordingly to direct hostilities only against military objectives.58 The Prosecution suggests that in accordance with this principle, the following types of attack are unlawful: (1) attacks deliberately directed against the civilian population as such, whether directed at particular civilian objects or at civilian areas generally ; (2) attacks aimed at military and civilian objectives without distinction; and (3) attacks directed at legitimate military objectives, which cause civilian losses clearly disproportionate to the military advantage anticipated.59

  37. In its analysis of the principle of proportionality,60 the Prosecution states that in order to establish the proportionality of a military attack, “the anticipated advantage to be gained from the particular military activity ” must be weighed against “the probable civilian losses”.61 When seeking to establish whether the proportionality principle is violated, the Prosecution urges the Trial Chamber to analyze the “concrete and direct military advantage” at the level of each sniping and shelling incident,62 and to consider whether the precautionary provisions contained in Article 57 of Additional Protocol I were complied with.63 It submits that the term “legitimate military objective” should be understood to “denote a military objective which may be lawfully targeted at the moment the commander makes the decision to launch the attack”, in accordance with the precautions laid out in Article 57(2)(b) of Additional Protocol I.64 As for the obligation of defending commanders to minimize casualties of civilians under their control contained in Article 58 of Additional Protocol I, the Prosecution takes the view that “this obligation is conditioned by what is deemed feasible” It further submits that failure of the defending party to comply with the obligation expressed in this provision does not relieve an attacking party of its duty to respect both the principle of distinction and the principle of proportionality when launching an attack.65

  38. The Defence does not challenge the Prosecution’s submissions regarding the elements of the crime of attack on civilians or offer an alternative definition of the offence. It maintains that a civilian is a person who has “no connection with the activities of the armed forces” and claims that this cannot be proven by merely describing the age, clothing and activity at the time of the incident, or physical attributes of an individual.66 According to the Defence, in order to determine the civilian status of a victim, “its assignments in the specified period of time” must be established.67

  39. The Defence submits further that the essence of the principle of proportionality “is to avoid infliction of excessive suffering to all those on the opposite belligerent side, whether civilians or soldiers”.68 It states that “the above mentioned principle is based upon two elements: the principle of soldier’s efficiency, and the principle of humanitarianism”.69

  40. The Defence mentions the obligation of the parties to an armed conflict to undertake the precautionary measures against the effects of attacks in order to protect civilians in their own territory.70 It does not however raise the issue of whether failure to remove one’s own civilians from dangerous circumstances would justify a violation by enemy forces of Article 51(2) of Additional Protocol I; it merely claims that it is difficult to avoid civilian casualties when the obligation is not complied with.71

    (ii) Discussion

  41. Although the Indictment refers in general terms to Article 51 of Additional Protocol I, the Trial Chamber understands the first sentence of the second paragraph of that article to be the legal basis of the charges of attack on civilians in Counts 4 and 7. This sentence will hereinafter be referred to as “the first part” of the second paragraph of Article 51 of Additional Protocol I, or simply as the “first part of Article 51(2)”.

  42. The constitutive elements of the offence of attack on civilians have not yet been the subject of a definitive statement by the Appeals Chamber. In only two cases before the Tribunal have persons been charged and tried of attack on civilians under Article 3 of the Statute pursuant to Article 51(2) of Additional Protocol I. In each case a brief exposition was given of the offence, together with the offence of attacks on civilian property. In the Blaskic case the Trial Chamber observed in relation to the actus reus that “the attack must have caused deaths and /or serious bodily injury within the civilian population or damage to civilian property. [...] Targeting civilians or civilian property is an offence when not justified by military necessity.”72 On the mens rea it found that “such an attack must have been conducted intentionally in the knowledge, or when it was impossible not to know, that civilians or civilian property were being targeted not through military necessity”.73 The Trial Chamber in the Kordic and Cerkez case held that “prohibited attacks are those launched deliberately against civilians or civilian objects in the course of an armed conflict and are not justified by military necessity. They must have caused deaths and/or serious bodily injuries within the civilian population or extensive damage to civilian objects”.74

  43. The Trial Chamber follows the above-mentioned jurisprudence to the extent that it states that an attack which causes death or serious bodily injury within the civilian population constitutes an offence. As noted above, such an attack when committed wilfully is punishable as a grave breach of Additional Protocol I.75 The question remains whether attacks resulting in non-serious civilian casualties, or in no casualties at all, may also entail the individual criminal responsibility of the perpetrator under the type of charge considered here, and thus fall within the jurisdiction of the Tribunal, even though they do not amount to grave breaches of Additional Protocol I. The present Indictment refers only to killing and wounding of civilians; therefore the Trial Chamber does not deem it necessary to express its opinion on that question.

  44. The Trial Chamber does not however subscribe to the view that the prohibited conduct set out in the first part of Article 51(2) of Additional Protocol I is adequately described as “targeting civilians when not justified by military necessity”.76 This provision states in clear language that civilians and the civilian population as such should not be the object of attack. It does not mention any exceptions. In particular, it does not contemplate derogating from this rule by invoking military necessity.77

  45. The Trial Chamber recalls that the provision in question explicitly confirms the customary rule that civilians must enjoy general protection against the danger arising from hostilities.78 The prohibition against attacking civilians stems from a fundamental principle of international humanitarian law, the principle of distinction, which obliges warring parties to distinguish at all times between the civilian population and combatants and between civilian objects and military objectives and accordingly to direct their operations only against military objectives.79 In its Advisory Opinion on the Legality of Nuclear Weapons, the International Court of Justice described the principle of distinction, along with the principle of protection of the civilian population, as “the cardinal principles contained in the texts constituting the fabric of humanitarian law” and stated that “States must never make civilians the object of attack [...].”80

  46. Part IV of Additional Protocol I, entitled “Civilian Population” (articles 48 to 58), develops and augments earlier legal protections afforded to civilians through specific rules aimed at guiding belligerents to respect and protect the civilian population and individual civilians during the conduct of hostilities.81 The general prohibition mentioned above forms integral part of and is complemented and reinforced by this set of rules. In order to properly define the conduct outlawed in the first part of Article 51(2) of Additional Protocol I, this rule must be interpreted in light of the ordinary meaning of the terms of Additional Protocol I, as well as of its spirit and purpose.82

  47. As already stated, the first part of Article 51(2) of Additional Protocol I proscribes making the civilian population as such, or individual civilians, the object of attack. According to Article 50 of Additional Protocol I, “a civilian is any person who does not belong to one of the categories of persons referred to in Article 4(A)(1), (2), (3) and (6) of the Third Geneva Convention83 and in Article 43 of Additional Protocol I.”84 For the purpose of the protection of victims of armed conflict, the term “civilian ” is defined negatively as anyone who is not a member of the armed forces or of an organized military group belonging to a party to the conflict. It is a matter of evidence in each particular case to determine whether an individual has the status of civilian.

  48. The protection from attack afforded to individual civilians by Article 51 of Additional Protocol I is suspended when and for such time as they directly participate in hostilities.85 To take a “direct ” part in the hostilities means acts of war which by their nature or purpose are likely to cause actual harm to the personnel or matériel of the enemy armed forces.86 As the Kupreskic Trial Chamber explained:

    the protection of civilian and civilian objects provided by modern international law may cease entirely or be reduced or suspended [...] if a group of civilians takes up arms [...] and engages in fighting against the enemy belligerent, they may be legitimately attacked by the enemy belligerent whether or not they meet the requirements laid down in Article 4(A)(2) of the Third Geneva Convention of 1949.87

    Combatants and other individuals directly engaged in hostilities are considered to be legitimate military targets.88

  49. The civilian population comprises all persons who are civilians, as defined above.89 The use of the expression “civilian population as such” in Article 51(2) of Additional Protocol I indicates that “the population must never be used as a target or as a tactical objective”.90

  50. The presence of individual combatants within the population does not change its civilian character.91 In order to promote the protection of civilians, combatants are under the obligation to distinguish themselves at all times from the civilian population; the generally accepted practice is that they do so by wearing uniforms, or at least a distinctive sign, and by carrying their weapons openly. In certain situations it may be difficult to ascertain the status of particular persons in the population. The clothing, activity, age, or sex of a person are among the factors which may be considered in deciding whether he or she is a civilian. A person shall be considered to be a civilian for as long as there is a doubt as to his or her real status.92 The Commentary to Additional Protocol I explains that the presumption of civilian status concerns “persons who have not committed hostile acts, but whose status seems doubtful because of the circumstances. They should be considered to be civilians until further information is available, and should therefore not be attacked”.93 The Trial Chamber understands that a person shall not be made the object of attack when it is not reasonable to believe, in the circumstances of the person contemplating the attack, including the information available to the latter, that the potential target is a combatant.

  51. As mentioned above, in accordance with the principles of distinction and protection of the civilian population, only military objectives may be lawfully attacked.94 A widely accepted definition of military objectives is given by Article 52 of Additional Protocol I as “those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage”.95 In case of doubt as to whether an object which is normally dedicated to civilian purposes is being used to make an effective contribution to military action, it shall be presumed not to be so used.96 The Trial Chamber understands that such an object shall not be attacked when it is not reasonable to believe, in the circumstances of the person contemplating the attack, including the information available to the latter, that the object is being used to make an effective contribution to military action.

  52. “Attack” is defined in Article 49 of Additional Protocol I as “acts of violence against the adversary, whether in offence or in defence.” The Commentary makes the point that “attack” is a technical term relating to a specific military operation limited in time and place, and covers attacks carried out both in offence and in defence.97 The jurisprudence of the Tribunal has defined “attack” as a course of conduct involving the commission of acts of violence.98 In order to be punishable under Article 3 of the Statute, these acts have to be carried out during the course of an armed conflict.

  53. In light of the discussion above, the Trial Chamber holds that the prohibited conduct set out in the first part of Article 51(2) is to direct an attack (as defined in Article 49 of Additional Protocol I) against the civilian population and against individual civilians not taking part in hostilities.

  54. The Trial Chamber will now consider the mental element of the offence of attack on civilians, when it results in death or serious injury to body or health. Article 85 of Additional Protocol I explains the intent required for the application of the first part of Article 51(2). It expressly qualifies as a grave breach the act of wilfully “making the civilian population or individual civilians the object of attack”.99 The Commentary to Article 85 of Additional Protocol I explains the term as follows:

    wilfully: the accused must have acted consciously and with intent, i.e., with his mind on the act and its consequences, and willing them ('criminal intent’ or 'malice aforethought’); this encompasses the concepts of 'wrongful intent’ or 'recklessness’, viz., the attitude of an agent who, without being certain of a particular result, accepts the possibility of it happening; on the other hand, ordinary negligence or lack of foresight is not covered, i.e., when a man acts without having his mind on the act or its consequences.100

    The Trial Chamber accepts this explanation, according to which the notion of “wilfully ” incorporates the concept of recklessness, whilst excluding mere negligence. The perpetrator who recklessly attacks civilians acts “wilfully”.

  55. For the mens rea recognized by Additional Protocol I to be proven, the Prosecution must show that the perpetrator was aware or should have been aware of the civilian status of the persons attacked. In case of doubt as to the status of a person, that person shall be considered to be a civilian. However, in such cases, the Prosecution must show that in the given circumstances a reasonable person could not have believed that the individual he or she attacked was a combatant.

  56. In sum, the Trial Chamber finds that the crime of attack on civilians is constituted of the elements common to offences falling under Article 3 of the Statute, as well as of the following specific elements:

    1. Acts of violence directed against the civilian population or individual civilians not taking direct part in hostilities causing death or serious injury to body or health within the civilian population.

    2. The offender wilfully made the civilian population or individual civilians not taking

    direct part in hostilities the object of those acts of violence.

  57. As regards the first element, the Trial Chamber agrees with previous Trial Chambers that indiscriminate attacks, that is to say, attacks which strike civilians or civilian objects and military objectives without distinction, may qualify as direct attacks against civilians.101 It notes that indiscriminate attacks are expressly prohibited by Additional Protocol I.102 This prohibition reflects a well-established rule of customary law applicable in all armed conflicts.103

  58. One type of indiscriminate attack violates the principle of proportionality.104 The practical application of the principle of distinction requires that those who plan or launch an attack take all feasible precautions to verify that the objectives attacked are neither civilians nor civilian objects, so as to spare civilians as much as possible.105 Once the military character of a target has been ascertained, commanders must consider whether striking this target is “expected to cause incidental loss of life, injury to civilians, damage to civilian objectives or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”106 If such casualties are expected to result, the attack should not be pursued.107 The basic obligation to spare civilians and civilian objects as much as possible must guide the attacking party when considering the proportionality of an attack.108 In determining whether an attack was proportionate it is necessary to examine whether a reasonably well-informed person in the circumstances of the actual perpetrator,109 making reasonable use of the information available to him or her, could have expected excessive civilian casualties to result from the attack.110

  59. To establish the mens rea of a disproportionate attack the Prosecution must prove, instead of the above-mentioned mens rea requirement, that the attack was launched wilfully and in knowledge of circumstances giving rise to the expectation of excessive civilian casualties.111

  60. The Trial Chamber considers that certain apparently disproportionate attacks may give rise to the inference that civilians were actually the object of attack. This is to be determined on a case-by-case basis in light of the available evidence.

  61. As suggested by the Defence, the parties to a conflict are under an obligation to remove civilians, to the maximum extent feasible from the vicinity of military objectives and to avoid locating military objectives within or near densely populated areas.112 However, the failure of a party to abide by this obligation does not relieve the attacking side of its duty to abide by the principles of distinction and proportionality when launching an attack.

    (f) Conclusion

  62. The Trial Chamber finds that an attack on civilian can be brought under Article 3 by virtue of customary international law and, in the instant case, also by virtue of conventional law and is constituted of acts of violence wilfully directed against the civilian population or individual civilians not taking direct part in hostilities causing death or serious injury to body or health within the civilian population.

    3. Terror Against the Civilian Population as a Violation of the Laws or Customs of War

    (a) Introduction

  63. This section of the Judgement expresses the view of the Majority of the Trial Chamber. Judge Nieto-Navia attaches a dissenting opinion.

  64. The first count of the Indictment reads:

    Count 1: Violations of the Laws or Customs of War (unlawfully inflicting terror upon civilians as set forth in Article 51 of Additional Protocol I and Article 13 of Additional Protocol II to the Geneva Conventions of 1949) punishable under Article 3 of the Statute of the Tribunal.

  65. The paragraph introducing Count 1 alleges that the Accused, General Galic, as commander of the SRK, “conducted a protracted campaign of shelling and sniping upon civilian areas of Sarajevo and upon the civilian population thereby inflicting terror and mental suffering upon its civilian population.” This introductory paragraph is headed “Infliction of terror”. The remaining six counts are divided into two groups which are headed, respectively, “Sniping” and “Shelling”. These are evidently descriptive categorizations of the counts, to which the Majority attaches no particular legal significance. Moreover, it will transpire in the course of the Majority’s discussion that “Infliction of terror” is not an appropriate designation of the offence considered here because actual infliction of terror is not a required element of the offence. The Majority will henceforth refer to the offence charged in Count 1 as “the crime of terror against the civilian population”, or simply “the crime of terror”, a purported violation of the laws or customs of war.113

  66. The charge, as such, of terror against the civilian population is one that until now has not been considered in a Tribunal judgement, although evidence of terrorization of civilians has been factored into convictions on other charges.114 This is also the first time an international tribunal has pronounced on the matter.115 After considering the arguments of the Parties, the Majority will examine in detail the legal foundations and other essential characteristics of the charge.

    (b) Consideration of the Arguments of the Parties

    (i) Prosecution

  67. In its Pre-trial Brief the Prosecution explained its position that the character of the armed conflict in Sarajevo as international or non-international was “irrelevant ” to the charges against the Accused.116 This was said to be because the 22 May Agreement117 made Article 51 of Additional Protocol I applicable to the conflict irrespective of its character.118 Thus the Prosecution did not concentrate in this case on proving the character of the conflict.

  68. The Trial Chamber has found that Article 51 was indeed part of the law regulating the conduct of the parties and that it was brought into operation at least by the 22 May Agreement. Since the Geneva Conventions and Additional Protocol I can be extended by agreement to any given conflict, and since the 22 May Agreement was not conditioned upon the Sarajevo conflict having, or assuming, a certain character (international or non-international), the Prosecution’s position, as set out above, is correct.

  69. The Prosecution further maintained that the prohibition against terrorizing the civilian population amounts to a rule of customary international law applicable to all armed conflicts. In support of this the Prosecution cited certain rules on aerial warfare prepared in the 1920s but not finalized, two UN resolutions from 1994 condemning atrocities in the former Yugoslavia, and the Spanish penal code from 1995.119 As will be made clear in later discussion, the Majority does not take a position in respect of this question.

  70. The Prosecution submitted that the following elements constitute the crime of terror:

    1. Unlawful acts or threats of violence.

    2. Which caused terror to spread among the civilian population.

    3. The acts or threats of violence were carried out with the primary purpose of spreading terror among the civilian population.

    In addition, according to the Prosecution’s proposal, there must be a nexus between the acts or threats of violence and the armed conflict, and the Accused must bear responsibility for the acts or threats under Article 7 of the Statute.120

  71. The Prosecution submitted that the first element in the list above, which is part of the actus reus of the offence, is “broad”, because it encompasses both acts and threats of violence.121 The Prosecution sees the acts of violence in the present case as consisting of systematic shelling and sniping of civilians. The Prosecution’s case is thus limited to these acts. As for “threats”, the alleged shelling and sniping of civilians created, according to the Prosecution, a constant threat that more such acts would be perpetrated at any moment.122 The “threats” in the present case are said to be of a kind implicit in the acts of violence. The Trial Chamber is thus not called upon to determine liability for threats that are not implicit, in the Prosecution’s sense.

  72. The “special intent requirement” (element 3) is, according to the Prosecution, the distinguishing feature of the crime of terror.123 The Prosecution has interpreted “primary purpose” as requiring that “the infliction of terror upon the civilian population was the predominant purpose served by the acts or threats of violence. It need not be established that the broader campaign in the Sarajevo theatre had this as its sole or only objective.”124 Where the special intent, or mens rea, cannot be proven directly, it may be “inferred from the nature, manner, timing, frequency and duration of the shelling and sniping of civilians.”125

  73. “As an element of the offence of terror [...i]t must [...] be established that terror was in fact caused”.126 In addition to proof of actual infliction of terror, the Prosecution requires a causal connection between the first and second elements (“2. Which caused...”). That is, there must have been not only unlawful acts and actual terror experienced by the population, but also a causal link between the acts and the terror. “[T]he offence of unlawfully inflicting terror [...] is distinguished also by its effect , which in the present case was the profound psychological impact on the population ”.127 The Prosecution does not cite any authority for these submissions.

  74. “Population”, according to the Prosecution, does not just mean any number of Sarajevo civilians: “the unlawful shelling and sniping campaigns [had] the result that much of the civilian population lived in a state of terror”.128 The implication that “population” is to be understood to mean the majority of the population, or at least a large segment of it, is found also in the following : “The requirement that terror be spread among the civilian population is satisfied even if certain civilians, or sectors of the population, were not so affected.”129

  75. In its preliminary submissions the Prosecution did not provide a legal definition of “terror” (i.e. of the emotional effect which figures in the purported second element of the offence), except to refer in a footnote to a dictionary definition of the word as “extreme fear”.130 In the course of trial, when the Prosecution’s expert on terror (a psychologist) was heard, terror was again rendered as extreme fear. The Prosecution later explicitly adopted its expert’s definition.131

  76. The Prosecution’s legal theory concerning the crime of terror was not elaborated or modified in later submissions.132 Except for the Additional Protocols, the Prosecution did not cite an authority for the three elements which, in its view, define the offence. The Majority makes the preliminary observation that the language of the prohibition common to the Additional Protocols, that “Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited”,133 does not on its face support the Prosecution’s second element, that the acts or threats of violence must have caused terror to spread among the civilian population.

    (ii) Defence

  77. The Defence in its preliminary submissions termed the Prosecution’s stand on the applicable law “unacceptable”, but did not dismiss outright the availability of the charge. It acknowledged that Article 51 of Additional Protocol I, which prohibits (in the Defence’s words) “illegal terror inflicted on civilians”, was binding upon the parties to the conflict.134

  78. The Defence stated that the intent to inflict terror must be demonstrable: “If the Prosecution is charging General Galic with having conducted a long-lasting shelling and sniping campaign designed to terrorize [the] civilian population [...] it must be established that there existed the intent to inflict terror on [the] civilian population by shelling and sniping.”135 Lastly, the Defence did not take issue with the actus reus element “of the criminal act of inflicting terror, as the Prosecution has qualified it”, namely acts of violence causing civilian casualties.136

  79. Thus, from the beginning of the case, the Defence joined the Prosecution in understanding that the scope of the actus reus of terror would be limited to the acts underlying Counts 4 and 7 of the Indictment (killing or severe injury of civilians through unlawful attacks), and that “threats” would not be a significant factor. The Defence’s only comment on threats was on a theoretical plane, when it stated that for threats of violence to come within the offence of terror they had to be specifically directed against the civilian population. “[The threat] must be serious. It must be real. And it must be capable to cause terror or spread terror among [the] civilian population.”137

  80. The Defence’s concern about Count 1 appears to have been limited to the question of multiplication of offences referenced to one and the same set of acts.138 (This is taken up by the Trial Chamber in its discussion of the law of cumulative convictions.) The implication is that the Defence did not contest the existence of a crime of terror.

  81. The Defence’s final written submissions on Count 1 repeat the submissions in its Pre-trial Brief.139 However, in another part of its Final Brief, the Defence notes the Prosecution’s position that “the civilian population was the subject of illegal attacks and terror [etc.]”,140 and then states:

    In order to accept the above mentioned, unfounded Prosecution’s conclusions, the Defence’s viewpoint is that the Prosecution must prove the following:

    a) The exact military actions that were conducted against the illegal targets and by which means (i.e. shelling or sniping), including the exact time and place,

    b) That, as part of these illegal actions, there was intention of targeting the civilians with the aim to terrorize,

    c) That the intention to kill the civilians existed,

    d) That the intention to inflict injuries, other than killings existed.141

    The difference between this list (which may or may not have been intended by the Defence as an alternative definition of the offence) and the Prosecution’s definition of the elements of the crime of terror is that the Defence does not seem to require proof that the civilian population did, in fact, experience terror (the second element in the Prosecution’s list), but does require proof of the perpetrator’s intent to kill or injure civilians.

  82. In yet another part of the Final Brief, however, the Defence does demand proof of actual infliction of terror, as well as a causal link between actual terror and unlawful violent acts:

    The prosecutor should have proven several things:

    1. that there was terror

    2. that this terror was not simply the result of war in an urban theatre, led in a legitimate way

    3. that this terror was the result of illegitimate acts

    4. performed by troops commanded by the Accused

    5. following his orders

    6. (alternatively) that the Accused was aware of the facts and (if he had not given the orders himself) that he had not punished them

    7. finally that the result was hoped for as such within the scope of a global plan.142

    If this was meant as a definition of the crime of terror, the Defence did not cite any authority for it.

  83. On the experiential aspect of terror, the Defence said: “It is underestimating the meaning of ‘terror’ to say that if an individual (or individuals) feels ‘extreme fear’ he feels terror.”143 Later, in its oral submissions at the trial’s end, the Defence asserted: “Inflicting of terror as an element of a criminal offence […] cannot be causing of any kind of terror or causing terror of any intensity […] It has to be of the highest intensity. It has to be long term. It has to be direct. And it has to be capable of causing long-term consequences.”144

  84. As noted in the preceding section, by the end of the trial the Defence seemed to have changed its position on the applicability of Additional Protocol I. In its Final Brief it wrote that the conflict had “the character of civil war […] it is quite clear that regulations of Additional Protocol II ha[ve] to be applied”.145 It submitted that Additional Protocol I is limited in its applicability to international conflicts by operation of Article 2 common to the Geneva Conventions.146 Moreover, in oral submissions on the last day of trial, the Defence expressed “some doubt” as to the status of the 22 May Agreement.147

  85. The Trial Chamber has already found that the 22 May Agreement was in effect during the relevant period, which confirms that the parts of Additional Protocol I referred to therein were operative during that period.148 Thus the Defence’s final position on the applicability of Additional Protocol I is of no consequence to the discussion of the crime of terror.149 The Majority notes that, in any case, the Defence unequivocally accepted the applicability of Additional Protocol II, which contains the same prohibition against terror as the first Protocol.

    (c) Discussion

  86. While the Parties have not raised the question of jurisdiction ratione materiae , the Majority will consider it ex officio, for it is fundamental to the exercise of competence.

  87. The Majority must decide whether the Tribunal has jurisdiction over the crime of terror against the civilian population, but only to the extent relevant to the charge in this case. That is to say, the Majority is not required to decide whether an offence of terror in a general sense falls within the jurisdiction of the Tribunal, but only whether a specific offence of killing and wounding civilians in time of armed conflict with the intention to inflict terror on the civilian population, as alleged in the Indictment, is an offence over which it has jurisdiction.150 While the Tribunal may have jurisdiction over other conceivable varieties of the crime of terror, it will be for Trial Chambers faced with charges correspondingly different from Count 1 of the present Indictment to decide that question.

  88. The Majority wishes to emphasize that nothing said below should be taken to limit the jurisdiction of the Tribunal in other cases.151

  89. As noted in the preceding section, in the Tadic decision on jurisdiction the Appeals Chamber said that four conditions (“the Tadic conditions”) must be met for an offence to be subject to prosecution under Article 3 of the Statute (violations of the laws or customs of law): (i) the violation must constitute an infringement of a rule of international humanitarian law; (ii) the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met; (iii) the violation must be serious, that is to say, it must constitute a breach of a rule protecting important values and the breach must involve grave consequences for the victim; and (iv) the violation must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule.152

  90. The discussion below begins with preliminary remarks on the Majority’s approach to treaty interpretation and the paramount importance of the nullum crimen sine lege principle. The Majority will then consider each of the Tadic conditions. The elements of the crime of terror are developed as part of the discussion of the fourth Tadic condition.

    (i) Preliminary remarks

  91. The Majority will instruct itself on two related matters of principle. In its interpretation of provisions of the Additional Protocols and of other treaties referred to below, the Majority will apply Article 31(1) of the 1969 Vienna Convention on the Law of Treaties, namely that “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”153 No word in a treaty will be presumed to be superfluous or to lack meaning or purpose.

  92. The Majority also acknowledges the importance of the principle found in Article 15 of the 1966 International Covenant on Civil and Political Rights, which states, in relevant part: “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. […] Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by the community of nations.”154

  93. The principle (known as nullum crimen sine lege) is meant to prevent the prosecution and punishment of a person for acts which were reasonably, and with knowledge of the laws in force, believed by that person not to be criminal at the time of their commission. In practice this means “that penal statutes must be strictly construed” and that the “paramount duty of the judicial interpreter [is] to read into the language of the legislature, honestly and faithfully, its plain and rational meaning and to promote its object.”155 Moreover:

    The effect of strict construction of the provisions of a criminal statute is that where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the canons of construction fail to solve, the benefit of the doubt should be given to the subject and against the legislature which has failed to explain itself.156

    (ii) First and Second Tadic Conditions

  94. The Indictment is not explicit as to which part of Article 51 of Additional Protocol I, or which part of Article 13 of Additional Protocol II, Count 1 is referenced to. Article 51 is an extensive provision in Part IV of the Protocol concerned with the protection of the civilian population. Yet it is clear from the submissions in this case that the intended reference of Count 1 is to sub-paragraph 2 of Article 51, which states:

    The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.

    The second sentence of this excerpt will henceforth be referred to as the “second part” of the second paragraph of Article 51, or simply as the “second part of 51 (2)”.

  95. The quoted passage is identical to sub-paragraph 2 of Article 13 of Additional Protocol II. Since the Trial Chamber has found that certain parts of Additional Protocol I, including Article 51 thereof, applied to the armed conflict in Sarajevo during the relevant time, the Majority takes Additional Protocol I to be the basis of Count 1. It is not necessary to decide whether Additional Protocol II was also applicable to the conflict. Moreover, the Majority is not called upon to decide whether Additional Protocol I came at any time into effect in the State of Bosnia -Herzegovina through fulfilment of the Protocol’s inherent conditions of application (Article 1 of the Protocol). The implementing instrument, on the evidence in this case, was the 22 May Agreement (as discussed in the preceding section).

  96. Thus the first two Tadic conditions are met: Count 1 bases itself on an actual rule of international humanitarian law, namely the rule represented by the second part of the second paragraph of Article 51 of Additional Protocol I. As for the rule’s applicability in the period covered by the Indictment, the rule had been brought into effect at least by the 22 May Agreement, which not only incorporated the second part of 51(2) by reference,157 but repeated the very prohibition “Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited” in the agreement proper.158

  97. The Majority emphasizes that it is not required to pronounce on whether the rule in question is also customary in nature. As stated above, it belongs to “treaty law”. This is enough to fulfil the second Tadic condition as articulated by the Appeals Chamber. Nevertheless, the Majority will proceed with additional caution here to avoid any possible misunderstanding of its position on this important question.

  98. The Appeals Chamber has said “that the International Tribunal is authorised to apply, in addition to customary international law, any treaty which: (i) was unquestionably binding on the parties at the time of the alleged offence; and (ii ) was not in conflict with or derogating from peremptory norms of international law, as are most customary rules of international humanitarian law.”159 In relation to the first point, the Majority understands that it stems from the unqualified imperative of respect for the nullum crimen sine lege principle. The fact that the 22 May Agreement was binding on the parties to the conflict, and that certain provisions of Additional Protocol I had thereby undoubtedly been brought into effect, means that in this general sense there is no affront to the principle of nullum crimen sine lege by the Majority’s determination. In relation to the Appeals Chamber’s second point, this raises the question of whether the second part of 51(2) in any way conflicts with, or derogates from, peremptory norms of international law. In the Majority’s view, it does not. What the second paragraph of Article 51, read as a whole, intends to say is that the prohibition against terror is a specific prohibition within the general prohibition of attack on civilians.160 The general prohibition is a peremptory norm of customary international law.161 It could be said that the specific prohibition also shares this peremptory character, for it protects the same value. However, to reiterate, the Majority is not required to decide this question. What is clear is that, by exemplifying and therefore according with the general norm, the rule against terror neither conflicts with nor derogates from peremptory norms of international law.

  99. The following considerations are also relevant. The Additional Protocols were debated and finalized at the 1974-1977 Diplomatic Conference under the auspices of the ICRC. A summary record of the proceedings has been preserved.162 The ICRC’s delegate to the committee to which Article 51(2) of Additional Protocol I was assigned in draft form163 said that the rule “merely reaffirmed existing international law”, without making a distinction between the provision’s first and second parts.164 This was the consistent attitude at the Conference. States’ concerns were for the most part limited to whether the object of the prohibition against terror should be the actor’s intent or the capacity of the methods employed to spread violence.165 Several States simply put on record their approval of the draft provision without proposing changes.

  100. To illustrate the insignificant level of controversy, the Majority mentions the committee’s summary of its first-session discussions of what was to become Article 51(2): “Some delegations had proposed an interpretation of ‘methods intended to spread terror’ going beyond the attacks referred to in the first sentence of the paragraph. Specific reference was made in this connexion to propaganda. The language of ‘intended to’166 also gave rise to some controversy. Some delegations suggested that the substantive element of intent would be too difficult to determine and that methods that in fact spread terror should be prohibited. Other delegations emphasized the problem of imposing responsibility for acts that might cause terror without terror having been intended.”167

  101. In the report on its second session, the committee stated: “The prohibition of ‘acts or threats of violence which have the primary object of spreading terror’ is directed to intentional conduct specifically directed toward the spreading of terror and excludes terror which was not intended by a belligerent and terror that is merely an incidental effect of acts of warfare which have another primary object and are in all other respects lawful.”168 What little disagreement there was about the draft provision was thus put to rest.169

  102. Article 51 of Additional Protocol I was adopted by the plenary of the Diplomatic Conference on 26 May 1977 with 77 in favour, one against, and 16 abstentions.170 France, the only state voting against, explained that it objected, for various reasons, to the provisions of paragraphs 4, 5, 7, and 8 of Article 51 (but not of paragraph 2).171 The concerns of the abstaining States were also confined to paragraphs 4, 5, 7, and 8.172

  103. Explicit reference to the terror clause is found twice in the States’ explanations of their votes on Article 51. In both cases the endorsement of the prohibition is strong and unqualified. The Byelorussian Soviet Socialist Republic noted the “criminal ” character of conduct which the prohibition aimed to counteract:

    Also very important from the standpoint of increasing the protection afforded to the civilian population is the provision in Article [51] concerning the prohibition of the use of force or threat of the use of force for the purpose of intimidating the civilian population. Intimidating peaceful citizens and spreading terror among the civilian population is well known to be one of the infamous methods widely resorted to by aggressors seeking to attain their criminal ends at whatever price.173

  104. The plenary adopted Additional Protocol I in whole by consensus on 8 June 1977.174 Following this, many States provided further explanations of their positions, but there was no further reference to the terror clause of Article 51(2).175 There were no treaty reservations of any relevance to this provision. A perusal of the travaux préparatoires of the Diplomatic Conference thus satisfies the Majority that all participating States condemned the strategy of terrorizing civilians as, in Byelorussia’s words, an “infamous method” of warfare.176

  105. These observations further support the view that the second part of 51(2) neither conflicts with nor derogates from peremptory norms of international law. It was meant, on the contrary, to be an exemplification of the general principle.

    (iii) Third Tadic Condition

  106. The Majority now considers the third Tadic condition, namely that the violation must be “serious” – that is to say, that it must constitute a breach of a rule protecting important values and the breach must involve grave consequences for the victim.177

  107. In the Majority’s opinion, this third condition, correctly interpreted, is not that the rule must be inherently “serious”, which would mean that every violation of it would also be serious, but that the alleged violation of the rule – that is, of a recognized humanitarian rule – must be serious for the violation to come within the jurisdiction of the Tribunal.

  108. In the present case, acts of violence of a very serious nature are alleged in the Indictment. In particular, Count 1 alleges a protracted campaign of shelling and sniping of civilians. A campaign of this nature cannot but cause death and injury to civilians over time, and allegedly this was the result of the Accused’s actions in this case. There is no doubt that making the civilian population or individual civilians the object of attack, with resulting death and injury to civilians, is a very serious violation of a basic rule of international humanitarian law. It would even qualify as a grave breach of Additional Protocol I.178

  109. Since doing that much is a serious violation, doing the same with the primary purpose of spreading terror among the civilian population can be no less serious, nor can it make the consequences for the victims any less grave. It is clear moreover from the travaux préparatoires of the Diplomatic Conference that the participating States without exception regarded the deliberate taking of measures to terrorize the civilian population as reprehensible as any attack upon the civilian population. Therefore the alleged violation is serious and the third condition is met.

  110. The Majority has not neglected the question of whether threats of violence, as opposed to acts of violence, could also involve grave consequences for the victim. However, because the question is not at issue in this case, the Majority is not required to address it.179

  111. It is perhaps worth reiterating Article 1 of the Tribunal’s Statute (“Competence of the International Tribunal”), that “The International Tribunal shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 […]” – the key notion for the purposes of this discussion is the seriousness of an offence.

  112. The Majority has demonstrated the seriousness of the violations alleged in this case.

    (iv) Fourth Tadic Condition

  113. The Majority now comes to examine the fourth Tadic condition, namely whether a serious violation of the prohibition against terrorizing the civilian population entails, under customary or conventional law, the individual criminal responsibility of the person breaching the rule. The issue here, in particular, is whether the intent to spread terror had already been criminalized by 1992. The Majority reiterates that it takes no position on whether a customary basis exists for a crime of terror as a violation of the laws or customs of war. Its discussion below amounts to a survey of statutory and conventional law relevant to the fulfilment of the fourth Tadic condition.

  114. To the Majority’s knowledge, the first conviction for terror against a civilian population was delivered in July 1947 by a court-martial sitting in Makassar in the Netherlands East-Indies (N.E.I.). The offences alleged in Motomura et al.180 were charged in the indictment as “systematic terrorism against persons suspected by the Japanese of punishable acts […] this systematic terrorism taking the form of repeated, regular and lengthy torture and/or ill-treatment, the seizing of men and women on the grounds of wild rumours, repeatedly striking them […] the aforesaid acts having led or at least contributed to the death, severe physical and mental suffering of many.”181 The court-martial’s jurisdiction was conferred by statute,182 Article 1 of which read, in relevant part:

    Under war crimes are understood acts which constitute a violation of the laws and usages of war committed in time of war by subjects of an enemy power or by foreigners in the service of the enemy, such as: […]

    2. Systematic terror.183 […]

    4. Torture of civilians. […]

    34. Indiscriminate mass arrests.

    35. Ill-treatment of interned civilians or prisoners. […]

  115. The Motomura court-martial convicted 13 of the 15 accused of “systematic terrorism practiced against civilians” for acts including unlawful mass arrests.184 The court found that those arrests had the effect of terrorizing the population, “for nobody, even the most innocent, was any longer certain of his liberty, and a person once arrested, even if absolutely innocent, could no longer be sure of health and life.”185 The associated torture and ill-treatment of interned civilians was also found to be a form of systematic terror.186 Seven of those convicted were sentenced to death and the rest to prison sentences ranging from 1 to 20 years.187

  116. The list of war crimes in the aforementioned N.E.I. statute reproduced with minor changes a list of war crimes proposed in March 1919 by the so-called Commission on Responsibilities, a body created by the Preliminary Peace Conference of Paris to inquire into breaches of the laws and customs of war committed by Germany and its allies during the 1914-1918 war.188 The Commission reported that it had found evidence of multiple violations of the rights of civilians and combatants, as well as a carefully planned and executed “system of terrorism”. It claimed that: “Not even prisoners, or wounded, or women, or children have been respected by belligerents who deliberately sought to strike terror into every heart for the purpose of repressing all resistance.”189 The Commission’s list of war crimes had “Murders and massacres; systematic terrorism ” of civilians as one item (the first in the list).190 The few trials held in 1921-1922 in Leipzig pursuant to the Treaty of Versailles are generally considered to have been a failure.191 In any event, they did not advance the concept of systematic terrorism created by the Commission.192

  117. The British and the Australians had also tried to make something of the “systematic terrorism” which came to life in 1919 and found its way into the post-Second World War N.E.I. statute. On 20 July 1945 the British delegation to a conference of nations known as the London Conference, which had assembled to negotiate the formation of the International Military Tribunal, proposed that terror against civilians in the context of armed conflict be criminalized. The delegation’s suggested definition of “Crimes”, under Article 6 of the draft IMT Charter, read, in part:

    The Tribunal shall have the power to try, convict and sentence any person who has, in any capacity whatever directed or participated in the planning, furtherance, or conduct of any or all of the following acts, designs, or attempts namely: [...]

    2. Systematic atrocities against or systematic terrorism or ill-treatment or murder of civilians

    3. Launching or waging war in a manner contrary to the laws, usages and customs of warfare

    and who is hereby declared therefore to be personally answerable for the violations of international law, of the laws of humanity, and of the dictates of public conscience.193

    A few days later, a revised definition which had gained the approval of the French was put forth by the British. It no longer made reference to “terrorism” as such, but used open-ended language (“Atrocities... include but are not limited to...”).194 The Charter in its final form used this open-ended formulation to define war crimes.

  118. Australia’s War Crimes Act of 1945 made reference to the work of the Commission on Responsibilities and included “systematic terrorism” in its category of war crimes.195

  119. The next relevant appearance of a prohibition against terror was in Article 33 of the 1949 Geneva Convention IV, which article states in part: “No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.” This protection extends only to persons “in the hands of a Party to the conflict ” (Article 4 of the Convention).196 Thus, purely by operation of Article 33, civilians in territory not occupied by the adversary are not protected against “measures of intimidation or of terrorism ” which the adversary might decide to direct against them.

  120. The most important subsequent development on the international stage was the unopposed emergence of Article 51(2) of Additional Protocol I (and of the identical provision in the second Protocol) in the Diplomatic Conference of 1974-1977, as described above. Additional Protocol I elaborated and extended the protections of the Geneva Conventions, including those of the fourth Convention on the protection of civilians in times of war. The Majority recalls that the scope of application of Additional Protocol I is given in its first Article, which states that the Protocol “shall apply in the situations referred to in Article 2 common to [the Geneva] Conventions.” Article 2 of the Conventions states, inter alia, that the Convention “ shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.” Consequently Additional Protocol I applies to the aforementioned situations to the extent feasible, as well as to situations such as that which the present Indictment is concerned with, in which civilians not in the hands of an attacking force allegedly become victims of attacks by that force. In other words, whereas the cited part of Article 33 of Geneva Convention IV brought protection from intimidation or terrorism to only a subset of civilians in the context of armed conflict (those in the hands of a Party to the conflict), Article 51(2) of the Protocol elaborated and extended the protection from terror to civilians whether or not in the hands of the Party to the conflict conducting the attack, to the extent consistent with a purposeful and logical interpretation of Additional Protocol I.

  121. The Majority now turns to consider a legislative development in the region relevant to this Indictment. Article 125 (“War Crime Against the Civilian Population”) in Chapter XI (“Criminal Offences Against Humanity and International Law”) of the 1960 Criminal Code of the Federal Republic of Yugoslavia read: “Whoever, in violation of the rules of international law in times of war, armed conflict or occupation issues orders for or performs […] the application of intimidating measures and terror […] shall be punished with severe imprisonment of at least five years or with the penalty of death.”197 The source of this may have been Article 33 of Geneva Convention IV, whose benefit, as noted above, is enjoyed by “protected persons”, namely those in the hands of a Party to the conflict. Yet Article 125 is formulated quite generally and does not seem to be limited to protected persons, in the sense of the Geneva Conventions. The 1964 Criminal Code was unchanged in this respect.198 The 1976 Criminal Code followed a different enumeration. The Chapter changed from XI to XVI, and the Article number from 125 to 142. The titles did not change. Article 142 came to read: “Whosoever, in violation of the rules of the international law during a war, an armed conflict or an occupation, orders […] imposition of measures [against the civilian population] aimed at inducing fear and terror […] or whosoever commits any of the said acts, shall be punished by imprisonment of not less than five years or by death.”199

  122. Following Yugoslavia’s ratification of Additional Protocol I on 11 March 1977, the new treaty was incorporated into Yugoslavia’s “[Armed Forces] Regulations on the Application of International Laws of War”. The Trial Chamber was provided with the 1988 edition.200 An order from the Federal President prefaces the regulations and tasks commanders of units with the responsibility “for the application of the international laws of war. The officer in charge shall institute proceedings against persons who violate the international laws of war for the pronouncement of the penalties prescribed by the law.”201 The applicable laws include Additional Protocol I.202 “Serious” violations of the laws of war are considered criminal offences.203 These include war crimes against a civilian population, namely “attack on civilians […] inhuman treatment [of civilians] inflicting great suffering or injury to bodily integrity or health […] application of measures of intimidation and terror204 and “deliberate bombardment of the civilian population”.205 In a later part, on means and methods of combat, the regulations state: “Attacking civilians for the purpose of terrorising them is especially prohibited.”206 The regulations point out that ignorance of the provisions of the laws of war “does not exonerate the transgressors from responsibility”,207 that the perpetrators of war crimes “may also answer before an international court, if such a court has been established”,208 and that the Criminal Code has been updated to criminalize and punish all aforementioned war crimes against the civilian population.209 These updates to the Criminal Code are evident in the version of the Code promulgated by the Federal Republic of Yugoslavia in 1990, whose Article 142 repeats the text of 1976 (excerpted in the paragraph above) yet is augmented by prohibitions derived from the Additional Protocols of 1977.210

  123. The “Serbian Republic” of Bosnia-Herzegovina did not disavow the regulatory regime which the Accused and other former JNA officers had laboured under while serving the Federation’s armed forces. An “Order on the Application of the Rules of the International Law of War in the Army of the Serbian Republic of Bosnia and Herzegovina”, signed by Radovan Karadzic on 13 May 1992 and published in the “Official Gazette of the Serbian People” on 13 June 1992, declared that “the Army […] shall apply and respect the rules of the international law of war […] includ[ing]: the international treaties signed, ratified or joined by the former Socialist Federal Republic of Yugoslavia; the customary international law of war; [and] the generally accepted principles of the international law of war. […] It is the duty of the competent superior officer to initiate proceedings for legal sanctions against individuals who violate the rules of the international law of war.”211 These “proceedings for legal sanctions” were set down in greater detail in the “ Guidelines for Determining Criteria for Criminal Prosecution” issued in 1992 by the Military Prosecutor’s Office at the Main Staff of the Armed Forces of Republika Srpska.212 Here the Military Prosecutor referred to the Criminal Code of the Federal Republic of Yugoslavia, which had been adopted by the “Serbian Republic” to the extent of preserving the title of the original Chapter – “Criminal Offences Against Humanity and International Law” – in which the updates referred to above in the Federation’s Armed Forces Regulations had been implemented.213 The Military Prosecutor noted the “unique nature” of that Chapter’s criminal offences, which is to be seen “in their seriousness, which is expressed in severe punishments, including the death penalty”.214 “These criminal offences take the form of direct execution of criminal and inhumane acts against the civilian population […] inhumane conduct, causing great suffering or injury to body or health [and] frightening and terrorising people.”215 The 1992 Guidelines instituted a procedure which relied on the army’s officer corps to report violations of the laws of war to the Military Prosecutor’s office.216 The Guidelines warned officers that should they “take no measures to prevent the […] acts themselves, and expose perpetrators to criminal prosecution, this in itself makes them answerable for these criminal offences.”217

  124. The 22 May 1992 Agreement states in its section on “Implementation” that each party “undertakes, when it is informed, in particular by the ICRC, of any allegation of violations of international humanitarian law, to open an enquiry promptly and pursue it conscientiously, and to take the necessary steps to put an end to the alleged violations or prevent their recurrence and to punish those responsible in accordance with the law in force.”218 Clearly the parties intended that serious violations of international humanitarian law would be prosecuted as criminal offences committed by individuals.219

  125. The developments reviewed so far demonstrate that, by the time the second part of 51(2) was added verbatim to the 22 May Agreement it already had a significant history of usage by direct or indirect reference in the region of the former Yugoslavia.

  126. There is at least one conviction for terrorism of the civilian population in the course of the Yugoslav conflict by a municipal court in the territory of the former Yugoslavia. In May 1997, the Split County Court in Croatia convicted Rajko Radulovic and other members of the army of “Republika Srpska” pursuant to provisions including Article 33 of Geneva Convention IV, Article 51 of Additional Protocol I, and Article 13 of Additional Protocol II, for, inter alia, “a plan of terrorising and mistreating the civilians”, “carr[ying out] the orders of their commanders with the goal to terrorise”, which included opening random fire against civilian areas and threatening to demolish, and indeed proceeding to demolish, a dam with the intention of drowning the approximately 30,000 people living downstream.220

  127. Finally, the fact that there existed, by 1992, individual criminal responsibility for serious violations of the rule against terror under at least conventional law, is evident from the content and context of Additional Protocol I. If a violation charged against the Accused in the present case is of the same nature as that which States at the Diplomatic Conference collectively considered a grave breach, individual criminal responsibility for the charge would thereby have been established. Terror in the present Indictment is not charged as a grave breach of Additional Protocol I. But with regard to whether there was, in 1992, individual criminal responsibility for a person committing a serious violation of the rule prohibiting terror, this can be answered in the affirmative where the serious violation took the form of serious injury or death caused to civilians. In such cases the acts of violence qualified, in themselves, as grave breaches of Additional Protocol I. Therefore the violation seen in all its elements (attack plus intent to terrorize) could not have been qualified as less criminal than a grave breach.

  128. The same conclusion is reached by another line of reasoning. Article 85 of Additional Protocol I is addressed to States, yet it delineates crimes, and legal elements of crimes, for which there is individual criminal responsibility. The Majority finds in Article 85’s universal acceptance in the Diplomatic Conference clear proof that certain violations of Article 51(2) of Additional Protocol I had been criminalized. In particular, as already explained in the preceding section, there was individual criminal responsibility for “making the civilian population or individual civilians the object of attack”, “when committed wilfully, in violation of the relevant provisions of this Protocol, and causing death or serious injury to body or health”.221 Alongside this component should be considered the unanimous and unqualified condemnation by the Diplomatic Conference of attacks against civilians intended to spread terror. That is, this specific intentional state – having the intent to spread terror – was also condemned. The serious violations alleged in the present case include both of the above components (wilfully attacking civilians resulting in death or serious injury plus the intent to terrorize them).

  129. Because the alleged violations would have been subject to penal sanction in 1992, both internationally and in the region of the former Yugoslavia including Bosnia-Herzegovina, the fourth Tadic condition is satisfied.

  130. Since all four conditions have now been satisfied, the Majority finds that serious violations of the second part of Article 51(2), and specifically the violations alleged in this case causing death or injury, entailed individual criminal responsibility in 1992. The Majority expresses no view as to whether the Tribunal also has jurisdiction over other forms of violation of the rule, such as the form consisting only of threats of violence, or the form comprising acts of violence not causing death or injury. This is not a question it has been called upon to decide.

  131. It now falls to the Majority to specify, in the light of what has been considered above, including the preliminary remarks on statutory interpretation, the material and mental elements of the offence of terror over which the Majority has found the Tribunal has jurisdiction. The Majority recalls the submissions of the Parties on the elements, which were summarized in the introduction to this section, and in particular the submission that actual infliction of terror is one of the elements of the offence. The Majority reiterates that the Parties’ submissions on the elements were tentative and were based on little authority.

  132. The Majority finds that Count 1 of the Indictment charges the Accused with serious violations of the rule in Article 51(2) of Additional Protocol I that “Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.” The present case does not involve “threats” (except in the narrow sense of implicit threats proposed by the Prosecution), and therefore the Majority is not required to pronounce on a crime of terror consisting only of threats. The present case also does not involve allegations of harm other than the causing of death or serious injury to civilians (in contrast, for example, with the Motomura case, where the harm was in the form of unlawful mass arrests and ill-treatment of civilians). In articulating the elements of the specific offence relevant to the disposition of this case, the Majority relies necessarily on the wording of Article 51(2) of Additional Protocol I. The Trial Chamber’s discussion of the crime of attack on civilians in the previous section is also relevant. That there is no uncertainty as to the meaning of the elements is demonstrated below with reference to the travaux préparatoires of the Diplomatic Conference. The Majority finds that the offence as here defined was criminalized in a precise and accessible manner by 1992, and that this was known or should have been known to the Accused. Therefore there is no affront to the principle of nullum crimen sine lege.

  133. In conclusion, the crime of terror against the civilian population in the form charged in the Indictment is constituted of the elements common to offences falling under Article 3 of the Statute, as well as of the following specific elements:

    1. Acts of violence directed against the civilian population or individual civilians not taking direct part in hostilities causing death or serious injury to body or health within the civilian population.

    2. The offender wilfully made the civilian population or individual civilians not taking direct part in hostilities the object of those acts of violence.

    3. The above offence was committed with the primary purpose of spreading terror among the civilian population.222

  134. The Majority rejects the Parties’ submissions that actual infliction of terror is an element of the crime of terror.223 The plain wording of Article 51(2), as well as the travaux préparatoires of the Diplomatic Conference exclude this from the definition of the offence.224 Since actual infliction of terror is not a constitutive legal element of the crime of terror, there is also no requirement to prove a causal connection between the unlawful acts of violence and the production of terror, as suggested by the Parties.225

  135. With respect to the “acts of violence”, these do not include legitimate attacks against combatants but only unlawful attacks against civilians.226

  136. “Primary purpose” signifies the mens rea of the crime of terror.227 It is to be understood as excluding dolus eventualis or recklessness from the intentional state specific to terror. Thus the Prosecution is required to prove not only that the Accused accepted the likelihood that terror would result from the illegal acts – or, in other words, that he was aware of the possibility that terror would result – but that that was the result which he specifically intended. The crime of terror is a specific-intent crime.228

  137. The meaning of “civilian population” was given in the section discussing the crime of attack on civilians. The Majority accepts the Prosecution’s rendering of “terror” as “extreme fear”. The travaux préparatoires of the Diplomatic Conference do not suggest a different meaning.

    (v) Conclusion

  138. The Majority is of the view that an offence constituted of acts of violence wilfully directed against the civilian population or individual civilians causing death or serious injury to body or health within the civilian population with the primary purpose of spreading terror among the civilian population – namely the crime of terror as a violation of the laws or customs of war – formed part of the law to which the Accused and his subordinates were subject to during the Indictment period. The Accused knew or should have known that this was so. Terror as a crime within international humanitarian law was made effective in this case by treaty law. The Tribunal has jurisdiction ratione materiae by way of Article 3 of the Statute. Whether the crime of terror also has a foundation in customary law is not a question which the Majority is required to answer.

    B. Offences Charged under Article 5 of the Statute

    1. Prerequisites of Article 5 of the Statute

  139. For a crime to be adjudicated under Article 5 of the Statute (crimes against humanity), there are two prerequisites: that there was an armed conflict, and that the alleged criminal acts occurred during that armed conflict.229 The latter “require[s] nothing more than the existence of an armed conflict at the relevant time and place.”230 No nexus between the underlying crime and the armed conflict is necessary.231

  140. With regard to the general elements of a crime against humanity under Article 5 of the Statute, the Trial Chamber follows the law as stated by the Appeals Chamber.232 The required elements related to actus reus are that:

    (i) there must be an “attack;”

    (ii) the underlying crime must be part of the attack;

    (iii) the attack must be directed against any civilian population;

    (iv) the attack must be widespread or systematic;

    The mens rea requirement is that the perpetrator knows of the wider context in which the underlying crime occurs and knows that his or her conduct is part of the attack.

  141. An “attack” may be defined as a course of conduct involving the commission of acts of violence.233 In the context of a crime against humanity, “attack” is not limited to armed combat.234 It may also encompass situations of mistreatment of persons taking no active part in hostilities, such as of a person in detention.235 In comparing the content of customary international law concerning crimes against humanity to the Tribunal’s Statute, the Appeals Chamber noted that “the ‘attack on the civilian population’ and the ‘armed conflict’ must be separate notions, although of course under Article 5 of the Statute the attack on ‘any civilian population’ may be part of an ‘armed conflict’”.236 In accordance with customary international law, the attack could precede, outlast, or continue during the armed conflict, but it need not be a part of it.237

  142. The phrase “directed against” is an expression which “specifies that in the context of a crime against humanity the civilian population is the primary object of the attack.”238 In order to determine whether the attack may be said to have been so directed, the following, inter alia, are to be considered: the means and method used in the course of the attack, the status of the victims, their number, the discriminatory nature of the attack, the nature of the crimes committed in its course, the resistance to the assailants at the time, and the extent to which the attacking force may be said to have complied or attempted to comply with the precautionary requirement of the laws of war.239

  143. The attack must be directed against a “civilian population.”240 A population may qualify as “civilian” even if non-civilians are among it, as long as the population is predominantly civilian.241 The definition of a “civilian” is expansive and includes individuals who at one time performed acts of resistance, as well as persons hors de combat when the crime was perpetrated.242 There is no requirement that the entire population of the area in which the attack is taking place must be subjected to that attack.243 It is sufficient to show that a certain number of individuals were targeted in the course of the attack, or that individuals were targeted in such a way as to compel the conclusion that the attack was in fact directed against a civilian “population,” rather than against a small and randomly selected number of individuals.244

  144. The Prosecution submits that, in the context of an armed conflict, the determination that an attack is unlawful in light of treaty and customary international law with respect to the principles of distinction and proportionality is critical in determining whether the general requirements of Article 5 have been met.245 Otherwise, according to the Prosecution, unintended civilian casualties resulting from a lawful attack on legitimate military objectives would amount to a crime against humanity under Article 5 and lawful combat would, in effect, become impossible.246 It therefore submits that an accused may be found guilty of a crime against humanity if he launches an unlawful attack against persons taking no active part in the hostilities when the general requirements of Article 5 have been established.247 The Trial Chamber accepts that when considering the general requirements of Article 5, the body of laws of war plays an important part in the assessment of the legality of the acts committed in the course of an armed conflict and whether the population may be said to have been targeted as such.248

  145. Evidence of attack by opposing forces on the civilian population to which the accused belongs may not be introduced unless it tends to prove or disprove an allegation made in an indictment, such as the Prosecution’s contention that there was a widespread or systematic attack against a civilian population.249 A submission that the opposing side is responsible for starting the hostilities is not relevant to disproving the allegation that there was an attack on the civilian population in question.250

  146. The attack must be widespread or systematic. “Widespread” denotes a large-scale attack with a large number of victims,251 while “systematic” refers to the organized nature of the attack.252 The assessment of what constitutes a widespread or systematic attack is relative to the civilian population under attack.253 The Trial Chamber must first identify the population which is the object of the attack and, in light of the means, methods, patterns, resources, participation of officials or authorities, and result of the attack upon that population, ascertain whether the attack was widespread or systematic.254

  147. The jurisprudence of the Tribunal has established that there is no requirement under customary international law that the attack be connected to a policy or plan.255 Evidence of a plan or policy may, however, be used in showing that the attack was widespread or systematic.256

  148. In addition to the intent to commit the underlying crime, the accused must know that there is an attack directed against the civilian population and that the acts performed by him or her are part of that attack.257 Knowledge of the details of the attack is not necessary,258 and it is not required that the accused shares the purpose or goal behind the attack.259 It is sufficient that through his or her acts or function the accused knowingly participated in the attack.260

    2. Crimes Alleged under Article 5 of the Statute

    (a) Murder

  149. Counts 2 and 5 of the Indictment charge the Accused with murder as a crime against humanity pursuant to Article 5(a) of the Statute. The counts are referenced to the Accused’s alleged conduct of a coordinated and protracted campaign of sniping, artillery, and mortar attacks upon civilian areas and the civilian population of Sarajevo, resulting in the death of civilians.

  150. The basic requirements for murder as a crime against humanity are that:261

    (a) the victim died;

    (b) the victim’s death was caused by an act or omission of the accused, or of a person or persons for whose acts or omissions the accused bears criminal responsibility; and

    (c) the act was done, or the omission was made, by the accused, or by a person or persons for whose acts or omissions the accused bears criminal responsibility, with an intention:
    (i) to kill, or
    (ii) to inflict serious injury, in reckless disregard of human life.262

    (b) Inhumane acts

  151. Counts 3 and 6 charge the Accused with inhumane acts as a crime against humanity pursuant to Article 5(i) of the Statute. The counts are referenced to the Accused’s alleged conduct of a coordinated and protracted campaign of sniping, artillery, and mortar attacks upon civilian areas and the civilian population of Sarajevo, resulting in the suffering and injury of civilians.

  152. The crime of inhumane acts is a residual clause for serious acts which are not otherwise enumerated in Article 5 but which require proof of the same chapeau elements.263 The elements of the crime of inhumane acts are that:264

    (a) there was an act or omission of similar seriousness to the other acts enumerated in Article 5;

    (b) the act or omission caused serious mental or physical suffering or injury265 or constituted a serious attack on human dignity; and

    (c) the act or omission was performed intentionally by the accused, or by a person or persons for whose acts and omissions the accused bears criminal responsibility.

  153. In order to assess the seriousness of an act or omission, consideration must be given to all the factual circumstances of the case. These circumstances may include the nature of the act or omission, the context in which it occurred, the personal circumstances of the victim including age, sex, and health, and the physical, mental, and moral effects of the act or omission upon the victim.266

  154. The intention to inflict inhumane acts is satisfied where the offender, at the time of the act or omission, had the intention to inflict serious physical or mental suffering or to commit a serious attack upon the human dignity of the victim, or where he knew that his or her act or omission was likely to cause serious physical or mental suffering or a serious attack upon human dignity.267

  155. Because some of the charges in this Indictment have the same underlying facts in common, the Trial Chamber will consider the law on cumulation of charges and convictions.

    C. Cumulative Charging and Convictions

    1. Cumulative Charging

  156. The Defence deems it “unacceptable” that the Accused be cumulatively charged with three different crimes (murder, inhumane acts, and attacks on civilians) on the basis of the same set of factual allegations.268 The Appeals Chamber of the Tribunal has pronounced on the issue of cumulative charging and stated that “cumulative charging constitutes the usual practice of both this Tribunal and the ICTR” and “is to be allowed in light of the fact that, prior to the presentation of all of the evidence, it is not possible to determine to a certainty which of the charges brought against an accused will be proven”.269 The Defence’s arguments with regard to cumulative charging are dismissed.

    2. Cumulative Convictions

  157. In the present case the criminal conduct alleged against the Accused is the same for Count 1 and Counts 4 and 7 under Article 3 of the Statute (violations of the laws and customs of war: terror upon the civilian population and attack on civilians ). The same alleged conduct serves as a basis also for the counts under Article 5 of the Statute (crimes against humanity: murders and inhumane acts). The Trial Chamber must decide in each case on which charges it is permissible to enter a conviction if the legal elements of the crimes were proved.

  158. According to the Appeals Chamber it is permissible to enter cumulative convictions under different statutory provisions to punish the same criminal acts if “each statutory provision involved has a materially distinct element not contained in the other. An element is materially distinct from another if it requires proof of a fact not contained in the other.”270 If it is not the case that each statutory provision involved has a materially distinct element, a conviction should be entered only under the more specific provision, namely the one with the additional element.271

    (a) Article 3: The Test Applied to Count 1 and Counts 4 and 7

  159. Count 1 is referenced to attacks on civilians by sniping and shelling, and Counts 4 and 7 are referenced, respectively, to the same attacks of sniping and shelling.

  160. The Majority of the Trial Chamber has found that the crime of terror in Count 1 is defined as “1. Acts of violence directed against the civilian population or individual civilians not taking direct part in hostilities causing death or serious injury to body or health within the civilian population. 2. The offender wilfully made the civilian population or individual civilians not taking direct part in hostilities the object of those acts of violence. 3. The above offence was committed with the primary purpose of spreading terror among the civilian population.”

  161. The Trial Chamber has found that the crime of attack on civilians in Counts 4 and 7 is defined as “1. Acts of violence directed against the civilian population or individual civilians not taking direct part in hostilities causing death or serious injury to body or health within the civilian population. 2. The offender wilfully made the civilian population or individual civilians not taking direct part in hostilities the object of those acts of violence.”

  162. Applying the aforementioned test, convictions for the crimes of terror and attack on civilians under Article 3 of the Statute based on the same conduct are not permissible. The legal elements are the same except that the crime of terror contains the distinct material element of “primary purpose of spreading terror.” This makes it more specific than the crime of attack on civilians. Therefore, if all relevant elements were proved, a conviction should be entered for Count 1 only.

    (b) Articles 3 and 5: Cumulation for War Crimes and Crimes against Humanity

  163. The Appeals Chamber has stated that it is permissible to cumulate convictions for the same acts under Articles 3 and 5 of the Statute.272 Therefore, a conviction for the crime of terror upon the civilian population (Article 3 of the Statute) and convictions for murder and inhumane acts (Article 5 of the Statute) may stand together.

    (c) Article 5: The Counts of Murder and Inhumane acts

  164. The counts of murder and inhumane acts as crimes against humanity are not based upon the same criminal conduct. They seek to punish, respectively, murder of civilians through sniping and shelling attacks (Article 5(a) of the Statute), and other harm suffered by civilians through sniping and shelling attacks, in particular serious injury (Article 5(i) of the Statute). Therefore the issue of cumulative convictions does not arise.

    D. Theories of Responsibility under Article 7 of the Statute

  165. The Indictment alleges that General Galic, as commander of the Sarajevo Romanija Corps, and pursuant to Article 7(1) of the Statute, bears individual criminal responsibility for planning, instigating, ordering, committing, or otherwise aiding and abetting in the planning, preparation, or execution of the campaign of shelling and sniping against the civilian population of Sarajevo.273 The Accused is also alleged to bear individual criminal responsibility pursuant to Article 7(3) of the Statute for the conduct of his subordinates.274

  166. Article 7 of the Statute provides for imposition of individual and superior responsibility on persons on the following basis:

    1. A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.

    2. […]

    3. The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.

    1. Individual Responsibility under Article 7 (1) of the Statute

  167. The Indictment, in describing the Accused’s responsibility, makes reference to each head of responsibility in Article 7(1).275 In the Prosecution’s Final Trial Brief reference is made to “ordering” as the basis of responsibility. It is within the Trial Chamber’s discretion to convict, if at all, the Accused under the appropriate head of responsibility within the limits set by the Indictment and insofar as the evidence permits.276

  168. The Trial Chamber considers, briefly, the case-law of the International Tribunals which elaborates the elements of the various heads of individual criminal responsibility in Article 7(1) of the Statute.277 Considering them in the order in which they appear in the Statute, “planning” has been defined to mean that one or more persons designed the commission of a crime, at both the preparatory and execution phases,278 and the crime was actually committed within the framework of that design279 by others.280 “Instigating” means prompting another to commit an offence, which is actually committed.281 It is sufficient to demonstrate that the instigation was “a clear contributing factor to the conduct of other person(s)”.282 It is not necessary to demonstrate that the crime would not have occurred without the accused’s involvement.283 “Ordering ” means a person in a position of authority using that authority to instruct another to commit an offence. The order does not need to be given in any particular form.284 “Committing” means that an “ accused participated, physically or otherwise directly, in the material elements of a crime under the Tribunal’s Statute”.285 Thus, it “covers first and foremost the physical perpetration of a crime by the offender himself.”286 “Aiding and abetting” means rendering a substantial contribution to the commission of a crime.287 These forms of participation in a crime may be performed through positive acts or through culpable omission.288 It has been held in relation to “instigating” that omissions amount to instigation in circumstances where a commander has created an environment permissive of criminal behaviour by subordinates.289 The Defence contests the applicability of that case-law and considers that “in all the cases (under Article 7(1)( a person must undertake an action that would contribute to the commission of a crime”.290

  169. In the Majority’s opinion, a superior may be found responsible under Article 7(1) where the superior’s conduct had a positive effect in bringing about the commission of crimes by his or her subordinates, provided the mens rea requirements for Article 7(1) responsibility are met. Under Article 7(3) (see further below) the subordinate perpetrator is not required to be supported in his conduct, or to be aware that the superior officer knew of the criminal conduct in question or that the superior did not intend to investigate or punish the conduct. More generally, there is no requirement of any form of active contribution or positive encouragement, explicit or implicit, as between superior and subordinate, and no requirement of awareness by the subordinate of the superior’s disposition, for superior liability to arise under Article 7(3). Where, however, the conduct of the superior supports the commission of crimes by subordinates through any form of active contribution or passive encouragement (stretching from forms of ordering through instigation to aiding and abetting, by action or inaction amounting to facilitation), the superior’s liability may be brought under Article 7(1) if the necessary mens rea is a part of the superior’s conduct. In such cases the subordinate will most likely be aware of the superior’s support or encouragement, although that is not strictly necessary. In the Majority’s view, the key point in all of this is that a superior with a guilty mind may not avoid Article 7(1) responsibility by relying on his or her silence or omissions or apparent omissions or understated participation or any mixture of overt and non-overt actions, where the effect of such conduct is to commission crimes by subordinates.

  170. The Trial Chamber notes that the regulations concerning the application of the laws of war to the armed forces of the SFRY, which would have been known to the Accused, provided under the heading “Responsibility for the acts of subordinates ” that, inter alia, “a military commander is responsible as a participant or an instigator if, by not taking measures against subordinates who violate the law of war, he allows his subordinates units to continue to commit the acts.”291 In situations where a person in authority under duty to suppress unlawful behaviour of subordinates of which he has notice does nothing to suppress that behaviour, the conclusion is allowed that that person, by positive acts or culpable omissions, directly participated in the commission of the crimes through one or more of the modes of participation described in Article 7(1).

  171. Proof of all forms of criminal responsibility can be given by direct or circumstantial evidence.292 For instance, “ordering ” – a form of responsibility emphasized by the Prosecution in its Final Trial Brief – may be inferred from a variety of factors, such as the number of illegal acts, the number, identity and type of troops involved, the effective command and control exerted over these troops, the logistics involved, the widespread occurrence of the illegal acts, the tactical tempo of operations, the modus operandi of similar acts, the officers and staff involved, the location of the superior at the time and the knowledge of that officer of criminal acts committed under his command.293

  172. In order for individual criminal responsibility to ensue, conduct must be coupled with intent. The requisite mens rea for all forms of participation under Article 7(1) is that the accused “acted in the awareness of the substantial likelihood that a criminal act or omission would occur as a consequence of his conduct.”294 The mens rea of the accused need not be explicit but may be inferred from the circumstances.295

    2. Article 7 (3) of the Statute

  173. The case-law of the International Tribunal establishes that the following three conditions must be met before a person can be held responsible for the criminal acts of another under Article 7(3) of the Statute: (1) a superior-subordinate relationship existed between the former and the latter; (2) the superior knew or had reason to know that the crime was about to be committed or had been committed; and (3) the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator.296 The Appeals Chamber has said that control must be effective for there to be a relevant relationship of superior to subordinate.297 Control is established if the commander had “the power or authority in either a de jure or a de facto form to prevent a subordinate’s crime or to punish the perpetrators of the crime after the crime is committed.”298 The Appeals Chamber emphasised that “in general, the possession of de jure power in itself may not suffice for the finding of command responsibility if it does not manifest in effective control, although a Court may presume that possession of such power prima facie results in effective control unless proof to the contrary is produced.”299

  174. In the absence of direct evidence of the superior’s actual knowledge of the offences committed by his or her subordinates, this knowledge may established through circumstantial evidence. The Trial Chamber may consider, inter alia, the indicia given by the United Nations Commission of Experts in its Final Report on the armed conflict in former Yugoslavia.300 The Trial Chamber also takes into consideration the fact that the evidence required to prove such knowledge for a commander operating within a highly disciplined and formalized chain of command with established reporting and monitoring systems is not as high as for those persons exercising more informal types of authority.

  175. In relation to the superior’s “having reason to know” that subordinates were about to commit or had committed offences, “a showing that a superior had some general information in his possession which would put him on notice of possible unlawful acts by his subordinates would be sufficient to prove that he had ‘reason to know’.”301 The information available to the superior may be in written or oral form. It need not to be explicit or specific.302 For instance, past behaviour of subordinates or a history of abuses might suggest the need to inquire further. It is not required that the superior had actually acquainted himself or herself with the information in his or her possession.303

  176. The evaluation of the action taken by individuals in positions of superior authority who have a legal duty to take all necessary and reasonable measures to prevent the commission of offences by their subordinates or, if such crimes have been committed, to punish the perpetrators, must be done on a case-by-case basis. Furthermore, it must be kept in mind that the superior is not obliged to perform the impossible; “a superior should only be held responsible for failing to take such measures that are within his material possibility”.304

  177. Finally, in cases where concurrent application of Articles 7(1) and 7(3) is possible because the requirements of the latter form of responsibility are satisfied alongside those of the former, the Trial Chamber has the discretion to choose the head of responsibility most appropriate to describe the criminal responsibility of the accused.305

    III. FACTUAL AND LEGAL FINDINGS

  178. In this third part, the Trial Chamber will explore what are the particular facts of the case and whether these particular facts support beyond reasonable doubt findings that the crimes alleged in the Indictment, charged under Articles 3 and 5 of the Statute and as as examined in Part II, were committed.

    A. General Remarks on Terminology and Evidence

    1. Introduction

  179. The Trial Chamber heard 171 witnesses, resulting in 22,016 pages of transcript. In addition, a total of 1,268 exhibits and 15 experts’ reports were admitted.

  180. In August 2003, the Prosecution disclosed material after the closing of the case pursuant, inter alia, to its obligations under Rule 68 of the Rules. The Defence reacted and regarded part of this material exculpatory. The Trial Chamber, upon review of the material disclosed, finds that, apart from one piece of evidence, the evidence lately disclosed by the Prosecution is redundant or does not concern the Indictment Period. The only piece of evidence not discussed at trial consists of a video interview about an incident where the Bosnian Croat Army (HVO) allegedly shelled ABiH-held territory in Sarajevo.306 The Trial Chamber does not find that information related to this incident, even if true, tends to suggest the innocence or mitigate the guilt of the Accused or may affect the credibility of Prosecution evidence; in fairness to the Accused, this material is however admitted into evidence for the purpose of a better understanding of the overall context of the conflict in Sarajevo during the Indictment period. On 18 November 2003, the Trial Chamber was informed that the Prosecution had disclosed additional material to the Defence, and received it pursuant to Rule 67(D) of the Rules. The Trial Chamber asked for a position of the Defence on this additional material. The Defence has however not filed any comment with the Trial Chamber in the following thirteen days. In the silence of the Defence on the character of the material, the Trial Chamber does not consider this material, and refrains from any decision on the matter.

    2. Definitions of “Campaign” and “Sniping”

    (a) Campaign

  181. The Indictment alleges the existence of a “campaign” without providing a definition of the term. The Prosecution’s understanding of the campaign can be derived relatively easily from the Indictment, which states that a “military strategy” of shelling and sniping was used to kill and wound the civilian inhabitants of Sarajevo; that this was “coordinated” and “protracted”; that the acts in question were “widespread or systematic”; and that they were performed between September 1992 and August 1994.307 In light of this, the Trial Chamber understands the word “campaign” in the context of the Indictment to cover military actions in the area of Sarajevo during the Indictment period involving widespread or systematic shelling and sniping of civilians resulting in their death or injury.

    (b) Sniping

  182. The Prosecution defines the term “sniping” as “fire from a small calibre weapon, such as [a] rifle or machine-gun, from a concealed, or partially concealed, position ”.308 The Defence contests this definition as being too broad and defines “sniping” as fire from “a special rifle with [an] optical sight” and claims that the SRK did not have such rifles.309

  183. The Indictment does not give a definition of “sniping”. However, the counts related to sniping activity refer to “deliberate targeting of civilians with direct fire weapons,”310 and Schedule 1 of the Indictment alleges incidents perpetrated with weapons such as machine-guns.311 The Accused was therefore on notice that the “sniping” alleged against him was not limited to incidents committed with special sniping rifles equipped with an optical sight. Furthermore, the common definition of sniping is given in terms of the direct targeting of an individual or object, a special rifle not being a necessary part of the definition.312 While it is true that both Witness DP36,313 an SRK soldier, and Mustafa Kovac,314 head of the Civil Defence in Sarajevo, limited the meaning to infantry weapons possessing an optical sight, Francis Briquemont, Commander of UN forces in Bosnia -Herzegovina in 1993-1994, defined a sniper as an elite firer who shoots from a long distance at individual targets,315 and John Hamill, an artillery officer who was a Military Observer with the United Nations (UNMO),316 said that a sniper, in a military sense, is somebody who will target specific individuals at long range and kill them.317 Hamill approved the definition of “sniping” in a report entitled “Weaponry in the Former Yugoslavia” written by Tetsuo Ani, a Canadian army officer:

    [“sniping”:] a term used indiscriminately in the conflict of the former Yugoslavia, applied usually to the targeting of civilians, with a variety of single-shot and multiple-shot (machine guns) weapons. The expression derives from the fact that the source of fire is usually so well concealed that it is difficult to pinpoint. Sniping, in the military sense is conducted for specific purposes, sometimes using specialised weapons that are expressly designed for sniping.318

  184. The Trial Chamber finds that in the context of the present case, sniping must be understood as direct targeting of individuals at a distance using any type of small calibre weapon.

    3. Evaluation of Evidence

  185. The Trial Chamber, mindful that the burden of proof lies with the Prosecution, has evaluated the evidence adduced at trial in accordance with the Statute, the Rules, and accepted international standards and general principles of law.

  186. The Indictment states that “All Counts in this indictment allege the totality of the campaigns of sniping and shelling against the civilian population but the scale was so great that the Schedules to the individual groups of counts in this indictment set forth only a small representative number of individual incidents for specificity of pleading.”319 The Indictment, insisting on the word “campaign,” set out to make a wide-ranging case against General Galic.

  187. The Appeals Chamber assented to this view, namely that the scheduling of certain incidents was necessary to satisfy the standard of specificity applying to indictments :

    an indictment pleaded in the very general terms in the body of this indictment, without at least some of the details given in the two schedules, would not have given adequate notice to Galic of the nature of the case he had to meet. […] Essential material facts omitted from the body of the indictment are the areas where the sniping and shelling caused injuries to the civilian inhabitants of Sarajevo, the approximate dates upon which the relevant events occurred, and also, in relation to the shelling, the areas from which the shelling originated. The only place where those material facts can be found is in the two schedules.320

  188. Thus the Schedules serve a procedural requirement – that of proper notice. They should not be understood as reducing the Prosecution’s case to the scheduled incidents, and the trial was not conducted on that understanding. Much evidence was led tending to support the Prosecution’s general case, which on the face of it (“shelling and sniping killed and wounded thousands of civilians”)321 goes beyond what could reasonably be based on scheduled incidents. Therefore, the Trial Chamber has paid due attention to the scheduled incidents, for they are alleged to exemplify the overall situation in Sarajevo. In respect of these incidents, the Trial Chamber gave particular attention to questions of distance between the victim and the most probable source of fire; distance between the location where the victim was hit and the confrontation line; combat activity going on at the time and the location of the incident, as well as relevant nearby presence of military activities or facilities; appearance of the victim as to age, gender, clothing; the activity the victim could appear to be engaged in; visibility of the victim due to weather, unobstructed line of sight or daylight. The Trial Chamber was hence in a position to assess in each case, in accordance with the law set out in Part II of this Judgement and in fairness to the Accused, whether a scheduled incident is beyond reasonable doubt representative of the alleged campaing of sniping and shelling or whether it is reasonable to believe that the victim was hit by ABiH forces, by a stray bullet, or taken for a combatant.

  189. At the same time, the Trial Chamber has given no less attention to evidence of non-scheduled sniping and shelling incidents as well as to evidence of other aspects of the situation in Sarajevo. The scheduled incidents have thus been considered by the Trial Chamber within a more general evidentiary context, reflecting how the great number of witnesses in the case understood them and explained them. Witness evidence together with documentary evidence has been chosen, combined, and arranged by the Trial Chamber in accordance with its relevance, the credibility of its source, and its probative value, with due regard to the fact that the present Indictment alleges unlawful conduct and responsibility for such conduct going beyond what is referred to in the scheduled incidents.

  190. The Trial Chamber was confronted with the difficulty that maps used or marked by witnesses had no scale indicated on them. Some of these maps did, however, indicate minutes of latitude. It is common knowledge that one degree of latitude equals approximately 111 kilometres, irrespective of location, and that a minute is 1/60th of one degree. On this basis, the Trial Chamber has been able to determine or verify distances between points marked by witnesses on maps with an acceptable degree of accuracy. The Trial Chamber agrees with the Defence that the scale of the map admitted into evidence as exhibit C2 is 1:50,000.322

  191. The Trial Chamber turns now to a review of events preceding the Indictment Period for a better understanding of the context in which the case is situated, in particular the history of the break-up of the Socialist Federal Republic of Yugoslavia (“SFRY”), which has been described in previous Judgements of this Tribunal and need not be repeated in lengthly detail here.323

    B. Events Leading to the Military Encirclement of Sarajevo in 1992

    1. Break-up of the SFRY

  192. From 1945 to 1990 the SFRY was composed of six republics: Croatia, Bosnia and Herzegovina (“BiH”),324 Macedonia, Montenegro, Serbia (comprising the autonomous regions of Kosovo and Vojvodina), and Slovenia. BiH was unique in that no ethnicity had a majority and therefore no distinct “Bosnian nation” was recognized within the constitutional order.325

  193. After 18 November 1990326 the Assembly of BiH was dominated by the three leading nationalist parties: the Croatian HDZ, the Serbian SDS, and the Muslim SDA. In Sarajevo, the three parties divided among themselves key positions at both municipal and republican levels.327 Alija Izetbegovic, a Muslim, became President of the BiH Republic.328

  194. Slovenia and Croatia declared their independence from the SFRY in June 1991 ; during the following months, they strove to establish themselves as sovereign states.329 This had an impact in BiH. In September 1991, the Main Board of the SDS recommended the formation of Serbian Autonomous Regions. The first of these was the region of Romanija-Birac in the Sarajevo area, which included, since its inception on 17 September 1991, the municipality of Pale and, from 24 December 1991, the municipality of Ilijas.330 On 15 October 1991, after the Assembly had adjourned for the day by its President Krajisnik, the SDS delegates departed; however, HDZ and SDA delegates reconvened and passed a “Declaration of Sovereignty.” The Declaration blamed the federal government for the disintegration of the SFRY and proclaimed the sovereignty of BiH.331

  195. On 24 October 1991, BiH Serbs formed the Assembly of the Serbian People of BiH332 and, in a plebiscite held on 9 and 10 November, overwhelmingly voted to remain part of the SFRY.333 By the end of 1991, Yugoslav People’s Army (“JNA”) troops and tanks, withdrawn from Slovenia and Croatia, headed towards strategic locations in BiH.334 On 9 January 1992, the Serbian Republic of BiH (Republika Srpska) was proclaimed with the aim of confederating part of BiH with the SFRY, or otherwise of declaring secession from BiH in order to join the SFRY.335 During the first months of 1992, Serbian institutions in competition with the ones controlled by the Presidency of the BiH Republic (“the Presidency”) were established throughout BiH, including in most of Sarajevo’s ten municipalities.336

  196. On 26 November 1991, the SFRY government requested the Security Council to send a peace-keeping mission to the SFRY.337 On 21 February 1992, the Security Council decided to establish the UN Protection Force (UNPROFOR) to “create the conditions of peace and security required for the negotiation of an overall settlement of the Yugoslav crisis”.338 Shortly thereafter, the Parliament of BiH organized a referendum on independence from the SFRY, held on 29 February and 1 March 1992 and boycotted by Bosnian Serbs. With full support from BiH Croats and Muslims, the Presidency declared BiH an independent state on 3 March 1992.339 In early March 1992, conflict broke out along ethnic lines in various locations in BiH.340 In April 1992, pursuant to a decision by the BiH Presidency, loyal Territorial Defence units, together with paramilitary groups, Bosnian-Croat forces (HVO), and Muslim JNA officers, were gradually incorporated into the Army of BiH (“ABiH”).341

    2. Sarajevo: Armed Conflict and Military Encirclement

  197. Sarajevo, the capital of BiH, is built in a hilly region along an east-west axis which follows the Miljacka River.342 By 1992, Sarajevo had grown into the most important political, cultural, industrial, and commercial centre of BiH.343 It was relevant to all BiH ethnic groups both as a symbol and for its strategic location.344

  198. Sarajevo was made up of ten municipalities: Stari Grad (Old Town), Centar ( Centre), Novo Sarajevo, Novi Grad, Vogosca, Ilidza, Pale, Ilijas, Hadzici, and Trnovo.345 According to the 1991 census, the municipality of Pale was the only one in which BiH Serbs constituted an absolute majority (around 69%). The Serbs were a simple majority in Ilidza and Ilijas. In Novo Sarajevo they were in approximately equal numbers to the Muslims.346

    (a) April 1992: Armed Conflict Erupts in Sarajevo

  199. In early March 1992, barricades and checkpoints were erected in Sarajevo by both SDS and SDA members.347 Forces loyal to the BiH Presidency seized strategic buildings and military equipment, while the SDS gradually took control of much of the city’s western and northern suburbs.348 Much evidence at trial highlighted the psychological impact of a killing of a Serb during a wedding party on 1 March 1992.349 Armed conflict broke out after the European Community recognized BiH as a sovereign state on 6 April 1992.350 Extensive gunfire erupted in Sarajevo, with each side accusing the other of having started the hostilities.351 Also on 6 April, according to the Donia Report, the JNA attacked the Ministry of Training Academy in Vrace, the central tramway depot, and the Old Town district with mortar, artillery, and tank fire, and JNA units seized control of Sarajevo’s airport.352 “The JNA expanded its control of approaches to the city by establishing road blocks along key roads. By the end of April, the contour of Sarajevo’s siege was largely established.”353 On 22 April 1992, a peace rally in front of the Assembly of the Republic was broken up by shots coming from the Holiday Inn.354

    (b) May 1992: Further Attacks in Sarajevo and Establishment of a Bosnian-Serb Army

  200. On 2 May 1992, a major JNA attack on the centre of Sarajevo occurred while President Izetbegovic was in Lisbon for negotiations. That day, Tarik Kupusovic, a member of the town council, witnessed tanks approaching from Lukavica, a neighbourhood in the southern part of Sarajevo, and opening fire on the Presidency building. Fire was returned from those buildings. Forces loyal to the BiH Presidency prevented the JNA from storming the Presidency, but only barely.355 “After that the town was exposed to very heavy shelling. A couple of days later the Bascarsija, the centre of old Sarajevo, was set alight, the national and university libraries, the railway station, the post office and many key buildings in town were heavily shelled and destroyed. […] This started already on the 2nd or 3rd of May and went on for several weeks, with interruptions, went [on] every day or every other day we experienced shocks. Zetra was destroyed, the Olympic Sports Hall, […] the railway station had gone, […] many apartments buildings had burned or several floors of those buildings and several apartments. […] The buildings that I mentioned are scattered all over town, so one could not identify a particular part of town being targeted, except for the buildings themselves, that were symbols of the town and were essential for its functioning, like the post office, the railway stations, the Zetra sports hall, and similar such facilities.”356

  201. After the JNA partially withdrew,357 the parliament of Republika Srpska on 12 May 1992 ordered the formation of the Bosnian -Serb Army (“VRS”),358 designating General Ratko Mladic Chief of its General Staff.359 On 22 May 1992 BiH was admitted as a member state of the United Nations.360 The Security Council called for the withdrawal of foreign forces, including the JNA, from BiH territory.361 That same day, General Mladic ordered the formation of the Sarajevo Romanija Corps (“ SRK”),362 one of the five constituent Corps of the VRS. It was to be located in the greater Sarajevo area, the former zone of responsibility of the 4th JNA Corps.363 JNA elements joined local Territorial Defence forces364 and participated in organizing and staffing the SRK.365 The SRK comprised overall about 18,000 soldiers366 divided into ten to thirteen brigades,367 ranging from a few dozen troops to several thousands,368 themselves divided into battalions and companies.369 The main SRK forces were positioned around what was colloquially called the inner ring of Sarajevo, in particular in the area of Ilidza, Nedarici and Grbavica.370 Until the end of 1992, seven SRK brigades were positioned in that part of confrontation lines constituting the “inner ring”, whose length was some 55 kilometres.371 Auxiliary forces of the Corps were positioned on the so-called exterior ring of the Sarajevo front, which length was some 180 kilometres.372

    (c) June/September 1992: Intensification of Attacks in Sarajevo and Further Deployment of UN forces

  202. The Trial Chamber was provided with evidence that, between May and September 1992, shelling of military and civilian targets within the city of Sarajevo by both sides continued,373 and fighting was intense and brutal.374

  203. On 8 June 1992, with Resolution 758, the Security Council enlarged the mandate and strength of UNPROFOR and authorized the deployment of UN Military Observers (“UNMOs”). By Security Council Resolution 761 of 29 June 1992, UNPROFOR was tasked with protecting Sarajevo airport, a strategic location south-west to the city, and with helping it function so that humanitarian aid could reach the population.375 In the summer of 1992, pursuant to an agreement with the UN, the SRK handed over Sarajevo airport to UNPROFOR.376 From that moment on, the airport was only to be used by UN personnel for UN purposes.377 UNPROFOR’s mandate was again broadened by Security Council Resolution 776 of 14 September 1992, to include the protection of convoys of humanitarian aid.378 At least three military battalions, French,379 Egyptian, and Ukrainian, were positioned in the city.380 Each consisted of around 500 to 600 soldiers.381 The headquarters of the UN troops in charge of “Sector Sarajevo” were in the Post Office (PTT) building in downtown Sarajevo382 and the warring factions had liaison offices there to maintain contact with UNPROFOR and file protests on alleged violations of rules and agreements by the other party.383

  204. On 1 September 1992, the ABiH troops positioned in and around Sarajevo formally came to be known as the 1st ABiH Corps.384 In 1993, some 75,000 troops of the 1st Corps were placed within the confrontation lines around Sarajevo. Approximately half of them were positioned in the city itself,385 while the other half was positioned along the confrontation lines outside the city.386 The two opposing forces in the Sarajevo sector were observed by military monitoring teams (UNMOs) in stations code-named LIMA (outside the city to cover SRK positions ) and PAPA (in the city to cover the territory controlled by the ABiH).387 There were around 60 observers as of February 1993, spread out over a total of 14 observation posts (11 LIMAs and 3 PAPAs).388 However, it was generally thought that, due to insufficient numbers, UNMOs could not effectively cover each assigned area.389

  205. Confrontation lines encircling the portions of the city under ABiH forces were in place by 10 September 1992, when General Galic took up his duties as SRK commander. The necessity for VRS forces – and for the SRK in particular – to “blockade” the city is recognized by the Radinovic Report, as well as the strategic objective of the ABiH of “de-blocking” the city.390 Members of the UNPROFOR present in Sarajevo clearly described the success of the SRK in creating “siege” conditions.391 The map attached to this Judgement in annex D shows the extent of the inner ring formed by the ABiH and the SRK confrontation lines facing each other in the city of Sarajevo. The confrontation lines remained relatively static throughout the Indictment Period.392

    C. Was there a Campaign of Sniping and Shelling by SRK forces against Civilians?

  206. The Prosecution alleges that “for forty-four months, the Sarajevo Romanija Corps implemented a military strategy which used shelling and sniping to kill, maim, wound and terrorise the civilian inhabitants of Sarajevo. The shelling and sniping killed and wounded thousands of civilians of both sexes and all ages, including children and the elderly”.393 The Defence submits that the “City was neither shelled, nor targeted from snipers. When the SRK units acted, they always acted in self-defence, and only and exclusively on legitimate military targets in the city and on enemy’s firing position”.394 It argues that a war was being waged in an urban setting, which “always includes collateral damages, especially when one side is not respecting its own obligations, like it was the case with the Muslim side, namely the obligation to remove civilians from the zone of military activities”, and “despite all precautions, it is not possible to control the opening of fire and the firing in urban conditions to avoid civilian casualties”.395 The Defence argues that the BiH Presidency intentionally attacked civilians on its side, pretending it came from the other belligerent party, to provoke the sympathy of the international community in favour of the BiH Presidency.396

  207. In this section, the Trial Chamber reviews the evidence of deliberate sniping and shelling of civilians, both under the heading of scheduled incidents and at a more general temporal and geographical level. In fairness to the Accused, but also because of the amount of evidence relating to the scheduled incidents and the manner in which it was introduced and dealt with, the Trial Chamber recalls that it paid due attention to those incidents. It tried to the extent that was possible and reasonable to assess each scheduled incident on its own terms, but also with a limited reference to other evidence concerning the situation of civilians in Sarajevo. By this method, the Trial Chamber will make findings on whether the Prosecution has proved that the SRK deliberately carried out any of the alleged scheduled sniping and shellig attacks attacks against civilians or against persons whose status should have been presumed to have been civilian.

  208. The Majority wishes to clarify at this point its reasoning in moving from the level of specific scheduled incidents to the level of a general campaign. It would be implausible to claim that 24 sniping attacks and 5 shelling attacks amounted to a “campaign”, in the sense above. The Majority makes no such claim. Spread out over a period of two years, the total of proved attacks, if any, could not in itself represent a convincing “widespread” or “systematic” manifestation of sniping and shelling of civilians. Therefore, the evidence which demonstrates whether the alleged scheduled incidents, if proved attacks, were not isolated incidents but representative of a campaign of sniping and shelling as alleged by the Prosecution is examined with no less due attention.

  209. The Trial Chamber will examine first general evidence of sniping and shelling at civilians in ABiH-held areas of Sarajevo, then turn to evidence of sniping and shelling at civilians in specific geographical areas of Sarajevo to consider whether, as alleged by the Prosecution, the sniping and shelling at civilians was conducted throughout the city of Sarajevo, that is in urban and rural neighbourhoods of Sarajevo.

    1. General Evidence of Sniping and Shelling at Civilians in ABIH-held Areas of Sarajevo during the Indictment Period

  210. The city of Sarajevo came under extensive gunfire and was heavily shelled during the Indictment Period. This is documented by UN reports, and other UN sources, which offer general assessments of the death or injury of Sarajevo civilians in the course of such attacks.397 John Hamill, a military observer who served with UNPROFOR from May 1993 to July 1994,398 explained that “Very, very few [shelling] incidents actually stand out” in his mind because there were “a whole series of attacks that went on killing civilians in the city of Sarajevo” during his stay there.399 Francis Thomas, a Canadian officer who oversaw UNMOs in Sarajevo from October 1993 to July 1994,400 testified that upon his arrival the bulk of the shelling was directed at the city of Sarajevo and he could detail cases in which UN representatives observed “artillery fire on the ground, hitting civilians”.401 A 1993 UNPROFOR report indicated that shelling had resulted in a “High level of civilian casualties relative to recent months”.402

  211. The Defence submits however that the evidence suggests that the ABiH carried out attacks againt their own civilians to attract sympathy of the international community. The Prosecution accepts that the Trial Record discloses that elements sympathetic or belonging to the ABiH may have attacked the Muslim population of Sarajevo although it argues that this evidence was inconclusive.403 The Trial Chamber notes in this respect that Pyers Tucker, a British officer who served with UNPROFOR, testified that with respect to the firing upon a funeral taking place in a cemetery north of Kosevo hospital, “people from [the United Nations] headquarters Sector Sarajevo, and I can name them if you need, told me that they had carried out investigations […] and that they believed that that fire had come from Bosniak forces”.404 Similarly, a Canadian officer with the UNPROFOR testified that it was “‘common knowledge’ that [investigations carried out by the United Nations] strongly pointed to the fact that the Muslim forces did, on occasion, shell their own civilians” though, “for political reasons,” that information was not made public.405 Richard Mole, Senior UNMO from September to December 1992, testified that he was “sure – though [he could not] give evidence of fact – that incidents occurred where, to perpetuate [the view that the population of Sarajevo was beleaguered] … the Presidency forces may well have fired upon their own city to maintain that beleaguered viewpoint”. He added that United Nations investigations of certain incidents occurring in the Sarajevo during the conflict had concluded that “there was an element of doubt as to [whether the SRK or the ABiH] had done the damage”.406 According to Michael Rose, the British general who commanded UNPROFOR forces in Bosnia-Herzegovina from January 1994 to January 1995, what “was certain is that the Bosnian governement forces would, from time to time, fire at the Serbs, at particular moments of political importance, in order to draw back fire on to Sarajevo so that the Bosnian government could demonstrate the continuing plight of the people in Sarajevo”.407

  212. On other occasions, UN sources also attributed civilian injuries and deaths to SRK actions, including deliberate targeting. According to General Francis Briquemont, who commanded UN forces in Bosnia-Herzegovina from 12 July 1993 to 24 January 1994,408 “There is no doubt that during the shelling” of Sarajevo by the SRK, “civilians were hit.”409 An ABiH source also attributed responsibility for civilian injuries and deaths in the city to the SRK. By letter dated 9 December 1993, ABiH General Rasim Delic complained to UNPROFOR that “the city of Sarajevo has been exposed to heavy shelling”, leading to “a great number of casualties among civilian population […] I take this opportunity to inform you that I have warned [the SRK] to stop the actions against the city of Sarajevo, otherwise I will have to issue an order to the units of the [ABiH] to respond to the same level.”410

  213. The Defence repeatedly proposed to witnesses who served the UN in Sarajevo that the physical damage was greater on the front line than in the city, implying that the casualties inflicted in the city were unintentional. The Trial Record shows however that there was more shelling going into the city and that civilians, and the civilian population as such, in ABiH-held areas of Sarajevo were targeted from SRK controlled territory.

  214. Hamill recounted an admission by an SRK officer to whom he spoke in relation to the Markale incident in February 1994: Colonel Cvetkovic “was the commanding officer of the Bosnian Serb army artillery regiment based in Mrkovici. We interviewed him in connection with this incident because he was designated by Republika Srpska authorities to deal with us. […] he also said that in the previous year, they had fired 30 to 40,000 rounds into the city and why were we so concerned about one round when they had fired so many”.411 An undated UNPROFOR military assessment of the situation in the city stated, without indicating its basis for doing so, that “Not all [SRK] shelling is provoked. The [SRK soldiers] often deliberately shell civilian targets in order to create civilian casualties.”412

  215. John Ashton, who arrived in Sarajevo in July 1992 as a photographer,413 remembered that during his stay in Sarajevo, “The majority of things – the targets I saw were civilian targets. I saw a lot of people go out to water lines. These were targeted specifically. And I saw people try to cut down trees. I saw snipers actually shoot at people.”414 Morten Hvaal, a Norwegian journalist covering the conflict from September 1992 to August 1994,415 witnessed civilians being shot at “more or less every day, if not every day”416 and estimated that he saw, or arrived within 30 minutes of, “50 to a hundred”417 instances where civilians were actually hit by small-arms fire. Mirsad Kucanin, a criminal inspector with the Centre of the Security Service in Sarajevo,418 performed more than a hundred investigations of shooting and shelling incidents in the city of Sarajevo, and “in all of them, casualties were civilians.”419 Kucanin knew of at least 30 instances during the conflict when UNPROFOR was informed of shooting directed at civilians and took action such as placing armoured personnel carriers to block lines of sight.420 Mustafa Kovac, who worked with the Civil Defence organization in Sarajevo,421 explained that frequent shelling had caused civilian casualties in the city in 1992.422

  216. Akif Mukanovic, soldier with the ABiH, said that he felt more secure at the frontline than elsewhere in Sarajevo because “fire was opened less often” at the confrontation lines.423 This is concordant with the explanation given by Milan Mandilovic, surgeon at the State Hospital, as to why civilian patients received at the State Hospital out-numbered combatants at least four to one.424 He said:

    Sarajevo is a relatively large city with quite a large population, and you couldn’t keep that entire population in a basement. The population had to move around. People went to work. They had to go and fetch foodstuffs or humanitarian aid. […] And it is precisely because of that that there were far more injured and wounded civilians coming into hospital. The soldiers were on the outskirts of town, and probably in trenches too, so that they did have some protection, and there were fewer of them, fewer soldiers than there were civilians.425

  217. The Trial Record also contains evidence that civilians were deliberately targeted while engaged in civilian activities or while in civilian locations.

  218. Ashton testified about fire-fighters targeted when tending fires started by shelling. He observed “an attack which lasted for an hour right next to the PTT building which hit a factory. The firemen came out to fight the fire and then of course there was a lull in the shelling and as soon as the firemen arrived they started firing again, the shells started coming in again.”426 In another occasion, during the shelling of a bakery compound, “the fire department responded despite the fact the shells continued to come down.” According to that witness, in that instance, UNPROFOR determined that the shelling had come from Grbavica, SRK-held territory.427

  219. Ambulances were also targeted. They were sometimes driven at night, without flashing their lights, and not on main roads to avoid being fired upon.428 Witness AD, an SRK soldier, testified that the Commander of the Ilijas Brigade gave orders to his mortar battery to target ambulances, a marketplace, funeral processions, and cemeteries further north from the city, in Mrakovo.429

  220. Hvaal testified that during the Indictment Period he attended funerals several times a week and saw that the Bosnian Serb army would shell them. On 20 to 30 occasions he claimed to have experienced a funeral procession being shelled. Hvaal pointed out that, over time, covering a cemetery became eventually very dangerous. Because of this, by the end of 1993 it “has become the rule” that funerals would be held only at night.430 Harding, a UNMO in Sarajevo from July 1992 until January 1993, said that funerals at the Lion Cemetery “took place all the time. Sometimes three or four at a time”. “Funerals were a fairly common thing to be attacked, and so it wasn’t unusual.” The attacks came from the north and north-east, “from the Bosnian Serb forces.” He gave evidence to the effect that the front line was so close at that point and that the Lion cemetery could be observed from it.431 Such attacks “happened a lot, it became normal and because it was considered normal, we didn’t make a report on it.”432 The digging of graves and holding of funeral services were conducted at night,433 and in some cases burials were not in cemeteries at all.434

  221. According to UN military personnel, trams were also deliberately targeted by Bosnian Serb forces. Fraser, an UNPROFOR representative in Sarajevo from April 1994 onwards, testified: “I can indicate to you there was one shooting in the city on the tram, where some people were shot and killed and they were identified as civilians.”435 Adrianus Van Baal, UNPROFOR Chief of Staff in Bosnia-Herzegovina in 1994, testified that on 16 March 1994 General Milovanovic, the Chief of the Main Staff of the VRS, threatened that if the trams in Sarajevo continued to run, he would ensure that they and their passengers would be targeted. Van Baal said that following the threat, the trams which continued to run were indeed targeted.436

  222. Civilians in ABiH-held areas of Sarajevo deferred even basic survival tasks to times of reduced visibility, such as foggy weather437 or night time, because they were targeted otherwise. Civilians would often collect wood at night, in particular, older people, “because they couldn’t move as fast and they knew it was risky to travel during the day.”438 Schools were closed, and temporary neighbourhood schools were established in cellars, to minimize the distance that children had to travel to their classes, and therefore their exposure to sniping and shelling.439 Many civilians lived for a long period of time in the cellars of their buildings in order to avoid the shells.440 They learned to move around as little as possible,441 rarely leaving their apartments:442 some old people were “literally dying of malnutrition because they were too terrified to come out.”443

  223. Because obtaining food and water was fraught with danger, since both involved queuing for prolonged periods with the risk of being targeted, Kovac testified that the Civil Defence varied the sites for the distribution of food provided by humanitarian agencies.444 When the water supply failed, international aid agencies supplied water pumps which were installed at suitable locations around the city.445 Residents had to wait, sometimes for a day, before their turn to fill their containers. UN troops had to frequently modify the locations where citizens gathered to receive humanitarian aid in order to avoid being targeted by shells.446

  224. Civilians venturing from their homes for these chores would often accompany each other, so that if they were wounded there would be assistance. One witness said she would always go out with someone, in case she was wounded, since she was living alone with three children. Sometimes children accompanied the women, to help carry the water.447 Civilians also developed alternative routes to traverse the city, which offered a greater degree of cover from sniper fire from SRK-held areas. Even so, these routes could afford no protection from shelling with indirect fire weapons, such as mortars.448

  225. To Kovac, “More or less every neighbourhood [of Sarajevo] was shelled during the conflict.”449 The Prosecution adduced detailed evidence in relation to specific areas of the city of Sarajevo held by ABiH forces to support its allegation that civilians therein were targeted throughout the Indictment Period from SRK-controlled areas.

    2. Sniping and Shelling of Civilians in Urban ABiH-held Areas of Sarajevo

    (a) General Grbavica Area

  226. The Prosecution alleges that the high-rise buildings in the area of Grbavica “were notorious among Sarajevans and internationals as a source of sniping fire directed to civilians”.450 It claims that “the suitability of this site for sniping civilians in the city was unparalleled, not only for the close proximity from which SRK forces could snipe into the heart of the city from a height, but more particularly because at that point the width of the city was quite narrow, exposing all traffic, including pedestrian, trams, buses and other vehicular traffic, that traversed the city on an east-west axis, to fire from these high-rise apartment buildings.” 451

  227. Grbavica was a neighbourhood in the Municipality of Novo Sarajevo located in the southern-central part of the city of Sarajevo. It was under SRK control throughout the Indictment period.452 Both parties are in agreement on this point. Maps marked by Prosecution and Defence witnesses indicate that the confrontation line in Grbavica ran along the Miljacka River, with Grbavica lying to the south.453 The area of Vrace, to the southwest of Grbavica, was also under the control of the SRK during the Indictment period.454

  228. The evidence shows that civilians in Novo Sarajevo were targeted from the SRK -controlled area of Grbavica. From October 1993 to March 1994, when Afzaal Niaz, an UNPROFOR representative, was on duty in Sarajevo, there was, according to this witness, frequent sniping from the south-eastern side of the confrontation line in Grbavica.455 Jacques Kolp, UNPROFOR Liaison Officer with the ABiH from March 1993 to November 1994, testified that it was common knowledge that sniper fire originated in the Grbavica area, “in the buildings on the other side of the river”.456 Aernout Van Lynden, a Dutch journalist who visited Sarajevo several times during the Indictment period,457 recounted that the sniper positions held by the SRK, in particular within Grbavica, were dangerous, as they allowed soldiers to “literally shoot down streets” in this central part of Sarajevo.458 John Ashton testified that “there was gunfire coming across the river from Grbavica directly into the city, between the buildings, near the university and near the Holiday Inn and near the museum”. He was later informed by SRK soldiers in Grbavica that “that’s where they had their front line set up and that’s where they were firing at people when they crossed the streets.”459

  229. Some areas of town were deliberately avoided by the population due to the danger of gunfire originating in Grbavica. The main thoroughfare of Sarajevo, part of which was called Marshal Tito Boulevard, and Marin Dvor, a central district, were exposed to frequent gunfire from that area. Jeremy Hermer, a UNMO at LIMA positions from August 1993 to January 1994,460 testified that the main avenue in Sarajevo, which runs parallel to the Miljacka River from Stari Grad into the western part of town, became known as “Sniper Alley.”461 Van Lynden indicated that much of this road, as well Marin Dvor Square, and the intersection near the Presidency building, were open to sniper fire from the high -rise buildings in Grbavica.462 He recalled seeing signs in some areas warning about sniping activity, as well as barriers across streets for protection of civilians from gunfire from those positions.463 Morten Hvaal, a Norwegian journalist covering the conflict from September 1992 to August 1994, said that throughout 1992 and 1993, before there were any effective anti-sniper measures in Sarajevo, he was frequently fired upon from buildings in SRK-controlled Grbavica when driving along “Sniper Alley”.464 From Grbavica the SRK “basically controlled a large chunk of the road that you had to travel to get to the western part of the city. So it was a case of picking up as much speed as you could in your car and going past there as fast as you possibly could”.465 He said that it was possible to see, particularly in the beginning of the war, “dust, smoke, even muzzle flashes partially because there was no one to engage them. They were basically at liberty to operate in a fairly relaxed manner [...] it was pretty easy to figure out where it was coming from.”466 Major Roy Thomas, a senior UNPROFOR Military Observer in Sector Sarajevo from October 1993 to July 1994, testified that civilians would use covered routes to avoid “Sniper Alley” although artillery would be brought to bear on those covered routes; to him, this was an indication that civilians were the targets.467 Fouad Sehbajraktarevic, a local resident, testified that “as you passed along Titova Street, you had the protection of buildings on either side. As soon as you reached Marin Dvor, it’s all over. There are snipers that can hit from any side from Grbavica.”468

  230. Several witnesses testified that the gunfire from Grbavica was aimed specifically at civilians. In December 1993, Hermer witnessed several rounds being fired directly at a crowd of civilians along Sniper Alley, near the government buildings. He recounted that:

    As the rounds hit the ground in front of us, the crowd which consisted of [...] between 20 and 50 people (s(imultaneously lowered their bodies and ducked their heads and moved into cover. Everyone did this simultaneously. It was if it was a well-rehearsed drill. [...] The only possible targets in that area were the civilians, the road and my vehicle. [...] Within a few seconds, there was more firing and what had happened effectively was that the crowd of people who had been moving from east to west across the road were now stuck either side of that road. I remember clearly that there was one mother [...] who was separated on one side of the road from her child who was on our side of the road. What had happened at that stage was that because the gun that was firing had a clear line of sight all the way down this road, this effectively split the city, at that point, into east and west. And any transit across that road was potentially lethal. [...] Each time somebody emerged from cover and tried to cross the road, another burst of automatic heavy machine-gun fire would come [...] crashing down in front of us. When nobody was moving, the gun wasn't firing.469

    David Fraser, an UNPROFOR representative who was in Sarajevo from April 1994 onwards, stated that “in the area of Sniper Alley, there were no military positions [...] just civilians walking along the street.” They were the main targets of the shooting.470 Ashton described the situation he witnessed in the central part of the city:

    I had seen [...] people trying to cross the bridges, cross the river in central Sarajevo, especially in Novo Sarajevo. I would watch them stop and hide behind a tree or behind a wall and then jump up and run, and then the shot would be fired. I watched at a major intersection near the Energoinvest building, which was another one of the most dangerous intersections in all of Sarajevo, because the sniping was consistent at that intersection. It was a wide, broad area that looked up towards the corner of Hrasno district and Grbavica where they intersected, but there was clearly a sniping position that fired down into that every day.471

    He said that containers were set up at intersections, such as near the Presidency and Energoinvest buildings and in the proximity of the Holiday Inn, to shield against fire coming from Grbavica.472 He pointed out that such barriers did not afford complete protection to civilians. When he visited SRK positions in Grbavica, he discovered that it was possible for SRK soldiers to see people crossing the gaps between the containers, and to target them as they crossed. Moreover, larger-calibre rounds would go right through the barriers. 473 On one occasion in the winter of 1993 to 1994, Hvaal was driving down Marshal Tito Boulevard when he came across an elderly woman lying in the street.474 She had been injured at an intersection with a history of heavy sniping from SRK positions.475 Before he could pull her to safety, she was struck in the head by a second bullet which killed her.476 On 5 December 1992, Van Lynden saw a civilian apartment block on Marshal Tito Boulevard being struck by incendiary bullet rounds from SRK territory.477 The incident was filmed by his crew.478 Van Lynden saw civilians escaping the resulting fire479 and was told by the people there that there had been no out-going fire to precipitate the attack.480

  231. Ashton described several instances of shelling on civilians. He testified about a mortar attack in December 1992 which killed a woman and wounded others in Novo Sarajevo.481 On February 1993, Ashton witnessed an SRK tank fire three shells into the area of the Holiday Inn near the museum, where there had been no hostile military activity. He said that civilians were in the street and French and Ukrainian UNPROFOR troops were stationed by some metal barriers.482 Francis Briquemont, commander of UN forces in Bosnia-Herzegovina from July 1993 to January 1994, said that when he arrived in Sarajevo and drove down “Sniper Alley” he saw that “almost all the buildings or civilian apartments were burned or destroyed or had been shelled.”483 He added that “The scope of the destruction on all of the buildings where people lived, all along Sniper Alley, [...] meant that those buildings were the systematic target of firing” prior to July 1993.484 UNPROFOR documents reported extensive shooting and shelling in the central area of Sarajevo during the Indictment period.485

  232. Mensur Jusic, a local resident, recalled a sniping attack which occurred in the spring of 1994 on Vojvode Putnika Street.486 It was evening and the witness was returning home from work. As he got off the tram, he heard a loud burst of gunfire and the sound of bullets hitting the asphalt. As he ran for cover, he saw a young girl crawling to safety. She had been hit by a sniper bullet. The witness picked her up and took her to a shielded passageway between the buildings. He did not see soldiers or any armed persons at that location nor anyone returning fire.487 Jusic testified that the gunfire had originated in Grbavica, across the Bratstvo-Jedinstvo Bridge.488 A second incident he witnessed occurred in the area of the Sarajevo railway station.489 Jusic saw a man on Brodska Street fall to the ground upon being struck by a bullet. Some people, who were not in uniform and did not carry weapons, pulled the man away. The gunfire continued.490 Jusic said that the victim was not carrying weapons and was dressed in civilian clothes, as were the other people in the vicinity.491 Based on previous experience with shootings at this location, he knew that the shot had been fired from the top of a certain group of tall (twenty-storey) buildings in Grbavica.492

  233. Mirsad Kucanin, a criminal investigator from Sarajevo, indicated on a map the location of four fifteen-storey buildings on Lenjinova Street, in the vicinity of the left bank of the Miljacka River, from where there was constant sniper fire.493 He also located the Grbavica shopping centre, a group of three twenty-storey buildings which he knew from personal experience were frequently used as firing positions to target civilians in the centre of the town and along Titova Street.494 He recalled having worked on three incidents involving sniping attacks carried out from the Grbavica shopping centre against trams.495 Akif Mukanovic, a resident of Hranso, confirmed that sniping attacks were carried out from that location.496

  234. Witness AJ testified that on 7 November 1992, in the afternoon, she was walking home from a neighbour’s house.497 She was dressed in civilian clothes.498 As she passed between two buildings499 near Darovalaca Krvi Street she heard a shot from the direction of Grbavica.500 A bullet struck her in the hip.501 She was taken to a first-aid station and later hospitalized.502 Witness AJ testified that there were no soldiers503 or weapons504 in the vicinity of the incident.505 According to the witness the gunfire originated in Grbavica.506 She had been clearly visible from the Grbavica shopping centre buildings as well as from other high-rise buildings in that neighbourhood.507 It was common knowledge, according to Witness AJ, that SRK snipers operated from there.508 Many people from her street had been killed or wounded by shots fired from those positions.509

  235. The Trial Chamber heard evidence about different SRK sniping positions located in high-rise buildings located on the southern side of the Miljacka River.

  236. From June 1992 until the beginning of May 1993, Witness D, an SRK soldier,510 was stationed at the entrance of four 15-storey buildings near Lenjinova Street in the vicinity of the Miljacka River.511 Using a map he indicated in court the positions where he and his platoon was deployed.512 He recalled that during his shifts soldiers from other units assigned to sniper duty would join his platoon at the tall buildings.513 The snipers would occupy the upper floors.514 “There were there every day.”515 He often heard the sound of gunfire coming from those floors.516 He had the opportunity to speak to the snipers.517 “They would usually say that they had hit someone.”518 Their equipment consisted of “very long-barrelled rifles” with telescopic sights, “some kind of binoculars with a rubber eyepiece on it.”519 “They had a separate telescope which was not mounted on the rifle. It was much broader, much wider, than the one on a rifle, and they were able to see the target better using this device.”520 They also had infrared sights.521

  237. Witness D said that ABiH snipers fired at his platoon’s positions in Grbavica 522 but “there was no fighting except this sniper fire”.523 According to the witness, his platoon received orders from the platoon commander, and from the company commander, to fire at anything that moved and that could jeopardize their positions.524 They were never instructed not to fire at civilians.525 On the other hand, however, several Defence witnesses who had been stationed in the area of Grbavica and the Jewish Cemetery during the conflict indicated that they were not given orders to target civilians.526

  238. Van Lynden recounted that in late September 1992 the Bosnian Serb Presidency permitted him to visit apartment blocks in Grbavica527 close to the Miljacka River,528 where he observed front-line sniping positions.529 He was taken to rooms in several buildings where there were different kinds of gun emplacements, including dark rooms “where there were sniper rifles” alongside sandbags behind window slits. He described the rifles as being long-barrelled and as having telescopic sights. Van Lynden knew from previous experience that the weapons he saw in those rooms were sniper rifles.530 On the floor he saw used cartridge cases. The soldiers were dressed in the uniform of the Yugoslav army.531 “They had walkie-talkies, small radios, and there were clearly other positions higher up or in other buildings, higher up the slope overlooking Sarajevo, who were in contact with these men on the front line positions, spotters.” He added: “It was clear that this was co-ordinated. It’s not just a man looking through one slit and deciding to do something if he sees something. There were others. It was a co-ordinated effort ”.532

  239. Hvaal said that in late 1993 or early 1994 he visited four high-rise buildings in Grbavica.533 There he saw “a fairly basic sniper position, not a very sophisticated one, heavily sandbagged.”534 Once inside, the only view out was through the window slit used by the sniper.535 He saw various types of weapon in those buildings, including an M-84, a general purpose machine gun locally known as a “death sower”.536

  240. At various times after June 1993, Ashton was taken by members of the SRK to front-line positions in apartment buildings in Grbavica.537 There he saw heavily sandbagged rooms from where snipers operated.538 Through the window slits he could see the area of Marin Dvor across the river, including the Holiday Inn and Tito barracks: “It was very easy to see where people could get shot crossing the intersections”.539 He indicated that there were “thousands and thousands of shell casings in the rooms. There was a lot of outgoing fire from that position.”540

  241. The Prosecution also alleges that the Jewish Cemetery was one of the prominent sources of sniper fire against civilians.541 The Jewish Cemetery of Sarajevo was located on the western slopes of Mount Trebevic. The evidence in the Trial Record indicates that both belligerent parties held positions in this area. Maps marked by Defence witnesses show that the confrontation lines were separated by the width of the cemetery. The SRK was positioned on the south-western side of the cemetery, while the ABiH was stationed along the north -eastern wall.542 These confrontation lines remained unchanged throughout the conflict.543 The area of the Jewish Cemetery was described by Defence witnesses as a particularly sensitive part of the frontline, where there was frequent exchange of fire between the warring parties.544

  242. The cemetery had a chapel located within its wall on the lower, northern end.545 The Trial Chamber heard conflicting evidence given by Defence witnesses regarding the party in control of the chapel. Both DP16, a soldier in the 3rd battalion of the SRK stationed in the area of the Jewish Cemetery,546 and DP11, another member of the same battalion,547 said that the chapel was under ABiH control.548 Izo Golic, an SRK soldier with the 1st Romanjia Brigade, said that no one held the chapel, “(i(t was closer to our positions”.549 Victor Vorobev, a Russian UNPROFOR representative stationed in this area on the SRK side, testified that the cemetery was not controlled by either party.550 The Trial Chamber did not hear specific evidence to the effect that civilians were targeted from the chapel of the Jewish Cemetery.551

  243. The Trial Chamber heard testimonies to the effect that snipers operated in the area of the Jewish cemetery of Sarajevo. General Michael Rose, the UNPROFOR commander for Bosnia-Herzegovina from January 1994 to January 1995, said that during his tenure in Sarajevo the Jewish cemetery always remained a dangerous source of fire.552 Kucanin indicated that fire was opened from the Jewish cemetery against civilians on the centre of Sarajevo.553 Van Lynden visited an SRK position near the Jewish cemetery, where there had been civilian houses prior to the war. Their positions were protected by tree trunks.554 They employed a system of mirrors which allowed them to remain under cover.555

  244. Lastly, as concerns non-scheduled incidents of sniping and shelling, international observers and senior hospital staff testified that the State Hospital, located in Marin Dvor,556 was regularly fired upon during the Indictment period from SRK-controlled territory resulting in injuries to patients and staff and significantly damaging the hospital infrastructure. Ashton, who lived at the State Hospital from the end of 1992 until the beginning of 1993, testified to this fact.557 According to the witness, every day during that period began with the shelling of the hospital from Mount Trebevic. Anti-aircraft weapons were also used in these attacks.558 Ashton recalled one particularly intense shelling incident on 23 September 1992 which seriously damaged three parts of the hospital.559 On that occasion, from the fourth floor of the main hospital building, he saw in the direction of Pale the firing of heavy-weapons from SRK-controlled territory.560 He also observed shells being fired on the hospital from SRK-controlled positions above the Jewish cemetery in Grbavica.561 In October 1992 he saw a tank fire three times at the hospital from SRK-controlled territory on the road leading to Pale.562 Attacks from Grbavica against the hospital were launched also in October 1992, December 1992, and January 1993.563 Another witness, Van Lynden, recalled being at the hospital towards the end of 1992 when a large explosion, which he attributed to tank fire, rocked the facility and damaged an elevator shaft.564 Sometime in March 1993, Ashton witnessed a member of the medical staff being injured by shrapnel in the arm and leg while bringing patients in through the front of the hospital.565

  245. Milan Mandilovic, surgeon at the State Hospital, testified that throughout the Indictment period, infantry fire caused great damage to the hospital.566 “The entire south facade, the east one as well, and partially the west, it was all bullet riddled from small arms.”567 According to the witness the fire “came from the slopes of the Trebevic mountain, the Jewish Cemetery, and the Vrace part of Grbavica settlement. [...] Those are the zones that would correspond to the south easterly, southern, and south western side.”568 Patients and hospital staff were wounded whilst in the hospital by sniper fire from those areas.569 He said that all twelve floors were damaged to some extent as result of shelling.570 The south side of the building, directly visible from SRK positions, was most severely shelled.571 Patients had to be moved to the north wing and to lower floors to be protected from the attacks.572 Bakir Nakas, the administrator of the State Hospital since May 1992,573 testified that the southern facade of the hospital, which faced the SRK-held territories of Vrace and Trebevic,574 was most exposed to fire, “almost 85 to 90 percent of hits were on that side”.575 Nakas recalled that, in October 1992, a large bullet from an anti-aircraft gun injured his secretary in her office.576 In August 1993 a bullet struck his office.577 According to the witness, these attacks originated in the areas of Vrace and Mount Trebevic.578 Carl Harding, a UNMO in Sarajevo from July 1992 until January 1993, inspected the State Hospital on 31 December 1992579 and found that all three hospital buildings had been damaged from shelling. A 155 mm shell had damaged the ground floor of the casualty reception building, while other fire had destroyed parts of the upper floors of the main building.580 The third building of the hospital, the annex, also bore the scars of artillery attacks.581 By January 1993, shelling had reduced the bed capacity of the hospital to 200 from its pre-conflict level of 480 beds.582

  246. The Prosecution tendered detailed evidence concerning two alleged examples of deliberate sniping of civilians from these areas which are identified in Schedule 1 of the Indictment under numbers 5 and 24.

    (i) Scheduled Sniping Incident 5583

  247. Milada Halili and her husband Sabri Halili testified that on the morning of 27 June 1993, at around noon, they were walking with Almasa Konjhodzic, Milada’s mother, to the PTT building.584 They were commemorating the death by sniper fire of a relative.585 As was common at the time, they had taken a long circuitous road to avoid areas targeted by snipers.586 As they approached the traffic lights at the intersection of Kranjcevica Street, in the vicinity of the Marshal Tito Barracks, they heard the sound of gunfire.587 Milada Halili, who was a bit ahead, ran across the intersection behind a barrier of containers which had been set up to protect against shooting from Grbavica.588 Frightened by the shot, Almasa Konjhodzic lost her balance and fell.589 Sabri Halili helped her to her feet and they continued.590 They had walked ten metres when Almasa Konjhodzic was struck by a bullet.591 Sabri Halili turned to see a pool of blood beneath his mother-in-law.592 The victim was taken to hospital where she died from the wound.593

  248. The Trial Chamber accepts the description of the incident as recounted by the witnesses and is satisfied that the victim was a civilian. The victim were wearing civilian clothes.594 Although Sabri Halili was a member of the ABiH, he was off-duty that day and was not dressed in uniform or carrying weapons.595

  249. The Defence submits that the victim was hit by a stray bullet which ricocheted during an exchange of fire and that she was not deliberately targeted.596 In the Defence’s view, it is also possible that the bullet was fired from ABiH positions and then ricocheted, striking the victim.597

  250. The following expresses the view of a majority of judges (“the Majority”). Judge Nieto-Navia dissents and expresses his view in the appended dissenting and separate opinion.

  251. The account of the incident shows that the victim and her family were near the traffic lights of the intersection, and had not yet reached the protection of the containers, when the first shot was fired. The second shot, which killed the victim, was fired as they crossed the intersection behind the barrier of containers. The testimony of the witnesses shows that there were no soldiers or other military targets in the vicinity of the incident.598 Milada Halili testified that there were people waiting for a bus opposite Marshal Tito Barracks.599 Sabri Halili said that there was no ongoing combat that day because a cease-fire had been concluded.600 An UNPROFOR document from 13 June 1993 confirms that a cease-fire was in place, but reports the situation as being “relatively tense due to SA [small-arms] fire and RT [artillery] shelling in the vicinity of Tito Barracks”.601 The Majority finds that the UNPROFOR report does not contradict the testimonies of the witnesses, for it does not provide sufficient information on the situation at the Kranjcevica Street intersection at the time of the incident. It also does not indicate in any way that this shooting incident was among the small-arms fire described; the witness did not speak about an exchange of fire but about the sound of a first and then second shot that hit the victim. Since the exact trajectory of the bullet which struck the victim is unclear from the evidence,602 the Majority cannot exclude that the victim was hit by a bullet that ricocheted. Nevertheless, the Majority understands the evidence to show beyond reasonable doubt that no military activity which could have accounted for the shooting was underway at the time of the incident in the vicinity of Marshal Tito Barracks and that the victim and her family were being targeted deliberately.

  252. The Defence argues that the victim could not be seen from SRK positions in Grbavica.603 Milada Halili testified that, although she did not see from where the bullet that hit her mother was fired, she heard the sound of gunfire coming from the direction of Grbavica.604 Sabri Halili said that the bullet which struck his mother-in-law came from the left of the direction in which they were walking, that is, from behind the containers.605 Both witnesses claimed that a tall white building in Grbavica, on the SRK side of the confrontation line, about 10 to 15 meters from the Miljacka River, was the source of fire.606 Jonathan Hinchliffe, a witness who testified about distances in relation to scheduled sniping incidents, determined the distance between the building indicated by the witnesses and the intersection to have been 665 metres.607 While the evidence is insufficient to conclude beyond reasonable doubt that the two shots were fired from the building indicated by the two witnesses, the visual evidence shows that there was an unobstructed line of sight from Grbavica to the intersection where the victim was shot.608 The fact that containers had been placed at the intersection to give protection from gunfire coming from Grbavica proves that that intersection was a dangerous one and had been targeted before. Based on these considerations, and on the testimony of the two witnesses as a whole, the only reasonable conclusion to be drawn from the evidence is, in the Majority’s opinion, that the bullet which killed Almasa Konjhodzic was fired from Grbavica. The evidence demonstrates Grbavica was under SRK control at the time of the incident.

  253. The Majority therefore finds that Almasa Konjhodzic, a civilian, was deliberately targeted and killed by a shot fired from SRK-controlled territory in Grbavica.

    (ii) Scheduled sniping incident number 24609

  254. Mensur Jusic testified that on 19 June 1994, at approximately 5 p.m., he was on a tram heading down Vojvode Putnika Street in the direction of Ilidza. 610 Witness M was on the same tram with her son aged four years. She was six months pregnant.611 It was a sunny day.612 As the tram approached the intersection of Vojvode Putnika and Trscanska Streets, slightly past Marin Dvor,613 Witness M heard a shot and saw that her son who was in a window seat had been injured.614 A man who had been standing by the tram’s door and a young woman had also been injured.615 Jusic also recalled hearing a shot. He saw a woman with a little boy covered in blood. He then realized that he too had been hit in the shin of his right leg, and noticed that another woman, standing to his right, was bleeding from her arm.616 The two witnesses testified that the tram continued, missing two stops, until it reached a safe place at Pofalici.617 No further shots were fired.618 The injured received medical assistance at a nearby emergency clinic.619

  255. The Trial Chamber accepts that the incident occurred as recounted by the witnesses. In particular, it is convinced that the tram was struck by a bullet, which injured three passengers, as it travelled down Vojvode Putnika Street towards Ilidza. It is further satisfied that the passengers in the tram were civilians. Moreover, the tram was visibly a civilian vehicle, which functioned during cease-fires, along a set route, and it could not have been confused for a military objective.

  256. The Defence submitted that neither the tram nor its passengers were deliberately targeted.620 It argued that there was daily combat activity in the area, so the tram could have been hit by a stray bullet or by a bullet that ricocheted.621 The testimony of the witnesses indicated that public transport was operational that day because a cease-fire was in force.622 Witness M testified that the morning had been calm and that there had been no incidents.623 The tram was not crowded at the time of the shooting and was not transporting any soldiers or any kind of military equipment.624 No military vehicles were present in the close vicinity of the location of the incident.625 The evidence does not suggest that any military activity was underway in the area. The Trial Chamber finds that the only reasonable inference to be drawn from the evidence is that the tram and its passengers were deliberately targeted.

  257. The Defence further submitted that the evidence is insufficient as to whether the bullet originated in SRK territory.626 It argued that both warring parties had positions in the area of the Jewish cemetery, so that the bullet was possibly fired from ABiH positions in this area.627 Bogdan Vidovic, a police officer who carried out a forensic investigation of the incident, testified that the bullet struck the left-hand side of the tram in the direction it was travelling.628 He said that the police could not establish the exact source of fire, since the tram had not stopped at the site of the shooting.629 The forensic investigation established only the general direction of fire and concluded that the shot originated in the areas of Grbavica or Vrace, which were SRK-controlled territory.630 Based on the bullet impact point on the left side of the tram, Jusic said that the shot was fired from SRK positions in the hills, in the direction of the Jewish cemetery or the slopes of Mount Trebevic, areas under SRK control.631 Witness M also believed that the shot was fired from SRK positions in the hills in the direction of Mount Trebevic, where the Jewish cemetery was located.632 The Trial Chamber notes that the Prosecution does not allege a specific source of fire for this incident, but claims that the different areas indicated by the witnesses were all under SRK control.633 It establishes, on the basis of the evidence and of maps available to the Trial Chamber, that the distance between the site where the incident occurred and the boundaries of the Jewish Cemetery was approximately 500 metres.634 Witnesses DP11 and DP16 indicated that the site of the shooting was not visible from SRK positions at the Jewish cemetery.635 The Defence, on the other hand, indicated that the site of the incident was visible from both sides of the confrontation line.636 A panoramic view from the intersection where the tram was shot and photographs of this intersection show that there was an unobstructed view of the intersection from the areas of the Jewish cemetery and Mount Trebevic.637 Considering the location of the tram when it was hit and that it was impacted on the left-hand side in the direction it was travelling, the fact that there was an unobstructed line of sight between the site of the event and the area of the Jewish Cemetery under the SRK control, the approximate distance between these two areas, lead the Trial Chamber to find that the only reasonable conclusion is that the shot which struck the tram was fired from this area held by the SRK.

  258. The Trial Chamber finds that a civilian vehicle was deliberately targeted from SRK-controlled territory in the area of the Jewish Cemetery, resulting in the wounding of three civilian passengers.

    (b) Hrasno Area

  259. The Prosecution alleges that the neighbourhood of Hrasno was exposed to fire from the upper reaches of Hrasno Brdo (Hrasno Hill) in the area of Ozrenska Street.638 The neighbourhood of Hrasno was a residential area located in the south-western part of Sarajevo, adjacent to Grbavica.

  260. Testimonies heard by the Trial Chamber indicate that civilians in the neighbourhood of Hrasno were exposed to shooting from several SRK positions. Witnesses described the area of Hrasno Brdo in the vicinity of Ozrenska Street as a regular source of gunfire. Nafa Taric, a victim of a sniping incident, testified that snipers targeted civilians from SRK positions there.639 Akif Mukanovic, a resident of Hranso, said that gunfire against civilians frequently originated from those positions after dark.640 Witness J testified that “during the entire war, there were well-known sniper spots ” at Ozrenska Street.641

  261. Evidence shows that the neighbourhood of Hrasno was under ABiH control, including the lower parts of Hrasno Brdo or Hrasno Hill. The witnesses indicated that the SRK also had positions on Hrasno Brdo, in the area of Ozrenska Street, which ran along the top of the hill. Witness DP10, who had been a soldier in the SRK’s stationed in the area of Grbavica,642 said that the SRK had positions on Hrasno Brdo which went up to the junction of Ozrenska and Moravska Street.643 Witness D also testified that the SRK was stationed in the higher parts of Hrasno Brdo, but said that the confrontation lines ran further west of this junction along Ozrenska Street. Between June 1992 and February 1993644 Witness D was stationed at various times at front-line positions at the intersection of Ozrenska Street and Milinkladska Street on Hrasno Brdo.645 Although he could not see the ABiH front-line positions from his location, they were about 50 metres down the hill.646 The witness drew a dotted line on a map to indicate the front line along Ozrenska Street.647 Two residents of Hrasno and two criminal investigators confirmed that higher parts of the hill, including the area of Ozrenska Street, were under SRK control, while lower parts were ABiH territory.648 The Trial Chamber is satisfied from the evidence that the SRK controlled upper parts of Hrasno Brdo, including the area of Ozrenska Street and the ABiH held the lower parts of the hill.

  262. Witness D, an SRK soldier, testified that from the positions of his unit on Ozrenska Street he was able to observe members of an SRK sniping unit operating from a two-storey house situated some 15 metres further up from where he was.649 The snipers would frequently change their positions and move from one house to another.650 Their equipment was similar to that which he saw in the tall buildings in Grbavica.651 They had long-barrelled rifles with telescopic sights, binoculars, and “something like a telescope” with high magnification.652 They also had infrared sights653 and a special kind of machine-gun with fitted optical sights.654 Witness D could see their weaponry protruding from the house. Very often he would hear the sound of firearms coming from there.655 On occasion he discussed with the snipers the nature of their targets. “They targeted civilians and soldiers alike.656 […] The shooting was usually at the intersections and the transversals, as they were called, which were built horizontally around town and could be seen very well from those positions.” These ‘transversals’ were described as “broad roads down the width of the city, not longitudinally, and they form intersections with the vertical roads.”657 Using binoculars he was able to see the containers that had been installed at these crossings for protection, as well as the people walking on the far side of the containers.658 “Sometimes people weren’t as safety-conscious and would cross at points where there were no containers.”659 The snipers confirmed to the witness that they were targeting persons at intersections where the barriers had been set up.660

  263. Van Lynden visited an SRK position in the higher area of Hrasno Hill.661 The gun emplacement he saw there had been dug in the garden outside a house.662 The soldiers had a machine gun, and “While one man manned the machine-gun, the other looked down with binoculars.”663 While the witness was there, one soldier opened fire. “When we asked what he had shot at, his answer was the ’Mujahedin’ by which he meant his opponents, the Bosnian Muslims”.664

  264. Civilians in Hrasno were targeted also from the area of Grbavica. In April 1993, Ashton was on board a bus in the Hrasno neighbourhood when the bus was fired upon.665 From the orientation of the bus and of the bullet marks, Ashton concluded that the gunfire originated from the area above the sports stadium in Grbavica.666 Witness I said that sniping from the shopping centre in Grbavica upon civilians in the area of Hrasno was common.667 Habib Trto also testified that gunfire was frequently directed from Grbavica against the intersection at the Dolac Malta bridge.668 Milada Halili, a resident of Hrasno, confirmed that civilians were targeted at this intersection.669 This situation prompted Almasa Konjhodzic, Milada Halili’s mother, to move from the witness’s house to the PTT building, where she was employed, in order to avoid crossing the Dolac Malta bridge every day.670 Several other persons had also moved there for this reason.671 Milada Halili testified that her apartment faced the Grbavica shopping centre and had been shot at from there.672

  265. Alija Mulaomerovic, the director of the Institute for Emergency Medical Services, which was located at 14 Darovalaca Krvi Street, currently called Kolodvorska Street,673 recounted that the Institute was shot at on numerous occasions from SRK territory. The staff believed that the shooting originated in Ozrenska Street on Hrasno Brdo,674 as well as from the former police school in Vrace.675 Mulaomerovic testified that the Institute was repeatedly shelled during the conflict and suffered serious damage.676 He could not, however, specify the source of fire: “it came from all directions”.677 The Institute’s staff was under constant threat from the gunfire and shelling the Institute was subject to.678

  266. The Prosecution tendered detailed evidence concerning four alleged examples of deliberate sniping of civilians in the general area of Hrasno which are identified in Schedule 1 of the Indictment under numbers 10, 15, 20 and 27.

    (i) Scheduled Sniping Incident 10679

  267. Nafa Taric testified that on 3 September 1993, at approximately 5 p.m., she and her eight-year-old daughter, Elma Taric, went out to get school books.680 Nafa Taric recalled it was a sunny and peaceful day.681 They walked from their apartment in Hrasno through the neighbourhood and down Ivana Krndelja Street.682 They crossed the street holding hands683 behind a line of containers which had been installed to provide protection against SRK snipers operating, according to the witness, from the area of Ozrenska Street on Hrasno Hill.684 As the two emerged from the cover of the containers, they were shot.685 A single bullet hit Nafa Taric’s left thigh, then grazed her daughter’s hand and penetrated her stomach.686 They fell to the ground.687 Nafa Taric said that another bullet “whizzed past our bodies as we lay there”.688 People who witnessed the incident689 did not dare approach them. 690 They managed to crawl away from the exposed position691 and were taken to hospital.692 The Trial Chamber is satisfied that the incident occurred as recounted by the witness.

  268. The Trial Chamber has no doubt that Nafa Taric and Elma Taric, who was 8 years old at the time, were civilians.

  269. The Defence submits that the victims were not deliberately targeted.693 Nafa Taric testified that there was no on-going military activity at the time of the incident.694 She said that there were neither soldiers, uniformed personnel nor any military equipment present in the immediate vicinity.695 According to the witness, the closest ABiH military command post was located approximately 500 to 800 metres from the Hrasno neighbourhood.696 The fact that the two victims were shot at as they emerged from behind the containers, and that a second shot was fired at them as they lay wounded, reveals that they were deliberately targeted and not wounded by accident.

  270. The Defence argues that the medical documentation tendered into the Trial Record does not explain “the angle of injury channel [sic] of the witness and her daughter”, making it impossible to establish the exact direction and source of fire.697 It further claims that Nafa Taric and her daughter could not have been shot from SRK positions on Ozrenska Street, since the location of the incident was not visible from these positions.698 The Trial Chamber considers that the absence of more detailed medical documentation or technical information on the point of entry of the bullet into the bodies of the victims is not crucial for determining the source of fire. Witness J, a police officer from the Novo Sarajevo Public Security Station who conducted an on-site investigation of the event,699 concluded that the shot had been fired from the SRK positions on Ozrenska Street.700 He based his conclusion not only on the common knowledge that snipers operated in that area,701 but also on the fact that the police was unable to immediately access the site of the incident because of on-going shooting from those positions.702 Nafa Taric recalled speaking to five people at the hospital where she was taken who had been injured by sniper fire originating in the area of Ozrenska Street within an hour of the incident in which she and her daughter were wounded.703 DP10 and DP16 testified that the site of the incident was not fully visible from SRK positions in Ozrenska Street.704 However, visual evidence presented to the Trial Chamber demonstrates that there was an unobstructed line of sight from SRK positions on Hrasno Brdo to the location of the incident.705 Taking this into account, the only reasonable inference is that Nafa and Elma Taric were injured by a shot fired from this area.

  271. The Trial Chamber is satisfied beyond reasonable doubt that Nafa and Elma Taric, civilians, were deliberately targeted from an SRK-controlled position.

    (ii) Scheduled Sniping Incident 15706

  272. Ramiz Velic, an employee of the Public Utilities Company in Sarajevo,707 testified that on 2 November 1993, at approximately 9.30 a.m., he was collecting rubbish with a front-end loader on Brace Ribara Street, in a settlement known as Trg Heroje (Heroes’ Square) in Hrasno.708 On this day he was being escorted by Egyptian forces in two UNPROFOR armored personnel carriers marked “UN”.709 He was wearing black corduroy trousers and a leather driver’s jacket.710 The loader and the trucks onto which the rubbish was being loaded were yellow.711

  273. Velic was being assisted by local residents using hands and shovels to load the rubbish.712 Blankets hung on a wire across the street as protection against sniper fire.713 As Velic reversed the loader he moved away from the blankets and the protection of one of the buildings into an open area where the UNPROFOR vehicles were, and was shot.714 Velic did not hear the shot over the noise made by the loader. When he sensed the bullet strike his left hand,715 he jumped out of the cabin and took cover behind a tyre.716 The shooting continued and he heard several bullets strike the left side of the vehicle.717 His colleagues later told him that they counted 64 bullet marks on the loader.718 After the shooting ceased, Velic was transported to hospital.719 The Trial Chamber is satisfied that the incident occurred as recounted by Velic.

  274. The Defence submits that either the loader was legitimately targeted because it was possibly being used for a military purpose,720 or that the victim was wounded by accident during an exchange of fire.721 Trial Chamber accepts Velic’s testimony that the loader was only used to load rubbish and that he was the only one who drove it during 1993.722 The loader was shot at when Velic moved into open space.723 Even if the attacker had not been able to see the clothing and the activity performed by Velic, the presence of the two UNPROFOR vehicles would have made the attacker aware that Velic was performing civilian duties. The Trial Chamber is not convinced by the Defence’s argument that Velic was accidentally hit. After he stepped out of the cabin, the loader was struck by dozens of bullets.724 Velic saw no other vehicles at the site of the incident apart from the loader, the yellow trucks and the UNPROFOR vehicles.725 There was no military presence or military equipment in the vicinity, according to the witness.726 The Trial Chamber concludes that Velic was deliberately targeted.

  275. The Defence further submitted that the Prosecution failed to establish the source of fire.727 Velic testified that, at the time he was hit, his left hand “was turned towards Vrace”.728 The source of gunfire, according to the witness, was the MUP academy in Vrace,729 under SRK control.730 Hinchliffe estimated the distance to the academy as 490 metres.731 Defence witnesses DP10 and DP16 gave inconsistent testimony concerning the line of sight from the academy.732 Visual evidence presented to the Trial Chamber demonstrates that the location of the incident was clearly visible from the SRK positions in Vrace.733 Considering the testimony of Velic, the position of the UNPROFOR APCs, and the existence of an unobstructed line of sight between the site of the incident and the area of Vrace, as well as the approximate distance between these two areas, the only reasonable inference is that the bullets fired at the loader, one of which hit the victim, originated, if not from the MUP academy, then at least from the area of Vrace.

  276. The Trial Chamber is satisfied beyond reasonable doubt that Ramiz Velic, a civilian, was deliberately targeted from SRK-controlled territory in Vrace.

    (iii) Scheduled Sniping Incident 20734

  277. In January 1994, Akif Mukanovic lived with his wife and two teenage children on the first floor of an apartment block on 27 Obala Jula in Hrasno.735 The apartment faced the direction of the confrontation lines, which were approximately 800 metres away.736 Bullets had hit the apartment on numerous occasions.737 To minimize the risk of being seen at night from SRK territory on Hrasno Brdo, the Mukanovic family would, in addition to blinds, use blankets to cover the windows at night.738

  278. Mukanovic testified that on 11 January 1994, he arrived home from work around 7p.m.739 It was already dark outside.740 His wife, Hatema,741 his two children, and a neighbour were at the dining room table.742 His wife was sitting with her back to the window.743 Mukanovic noticed that the blinds had not been covered with blankets.744 Because there was no electricity, a candle was lit on the table.745 The witness recalled that “There wasn’t any shooting, there wasn’t any fighting, or anything like that. There was just this bang, and we all jumped up. (...( And my wife at that point just got up and said, ‘I’m finished’. She took a step forward [...] went all pale and sunk to the floor”.746 According to Mukanovic, two bullets struck his apartment.747 One passed through the wooden frame of the left side of the window, looking outward,748 and wounded his wife in the right shoulder blade, cutting through her aorta and lodging in her body.749 A second bullet went through the left windowpane, across the dining-room and through the wall into the outside hallway of the building.750 Hatema Mukanovic was taken to the hospital but she did not survive the injury.751

  279. The Trial Chamber is satisfied that the incident occurred as recounted by the witness and that the victim and her family were civilians.

  280. The Defence submitted that the direction of fire cannot be ascertained because the angles at which the bullets struck were not established by the Prosecution.752 The Trial Chamber does not consider that information necessary to determine the direction or source of fire. Mukanovic testified that the shots came from the SRK positions on Hrasno Brdo.753 He indicated on a map and on photographs shown in court the location of those positions, which could be seen from his apartment, as well as the confrontation lines.754 He said that, when there was shooting at night, “One could see because they would be using tracing bullets. So you could see where the fire came from.”755 Witness J, a police officer at the Novo Sarajevo Public Security Station, conducted an on-site investigation of the incident.756 He explained that the bullet that hit the victim had left entry-exit marks, from which the police was able to determine the direction of fire.757 The forensic investigation concluded that the shots had come from SRK positions on Hrasno Brdo.758 Hinchliffe estimated the distance to be 760 metres.759 Visual evidence presented to the Trial Chamber shows that there was an unobstructed line of sight between Hrasno Brdo and Mukanovic’s apartment.760 The Trial Chamber concludes from the above that the victim was killed by a shot fired from territory on Hrasno Brdo under SRK control.

  281. The Defence further submits that the victim could not have been deliberately targeted, since she was not visible from SRK positions on Hrasno Brdo.761 In the Defence’s view, the victim was probably hit by accident by a stray bullet fired during ongoing combat. 762

  282. The following findings are that of the Majority of the Trial Chamber. A separate opinion by Judge Nieto-Navia dissenting from the Majority’s findings is attached to this Judgement.

  283. Mukanovic’s account establishes that two bullets were fired into his apartment. One bullet hit the glass pane and the other went through the window frame and struck the witness’s wife. Mukanovic testified that there had been no military personnel or equipment in the building and no military activity in the vicinity.763 He added that the day had been “pretty quiet, one of the calmer days”. There had been no shooting or shelling prior to the incident that evening.764 The Majority finds that the shots fired into Mukanovic’s apartment were not stray bullets but were deliberately aimed at the window of the witness’s apartment. There was a pattern of sniping of civilians in the area of Hrasno. Mukanovic and his family were aware of this danger and would hang blankets on windows to reduce the visibility of their apartment at night. However, on the evening of the incident only torn cotton curtains were drawn across the windows. The room they were sitting in was lit by a candle. There is evidence that the SRK snipers operating from Hrasno Brdo used infrared sights to view their targets after dark.765 However, the Prosecution has not established that such a device was used in this case. Nevertheless, taking into account the fact that there were no soldiers inside or in the proximity of the building and no combat activity was underway at the time, the attacker should have known that, by deliberately targeting a window (with a light) of an apartment in a residential block of flats, only civilian casualties would result.

  284. The Majority of the Trial Chamber finds that, after dark on 11 January 1994, two shots were fired deliberately at a candle-lit window of a civilian apartment block in Hrasno from SRK-controlled territory on Hrasno Brdo, killing Hatema Mukanovic, a civilian, and that the attack was carried out from SRK-controlled territory with the intention to kill or to seriously injure any civilian present in the candle -lit room.

    (iv) Scheduled Sniping Incident 27766

  285. Witness AG, a boy of 13, and Witness AH, his sister, testified that on the afternoon of 22 July 1994 they ventured out with their mother to visit a relative.767 It was a clear day.768 They stopped to look at a shoe-shop window on Miljenka Cvikovica Street.769 Witness AG got off his bicycle and stood nearby.770 He was at that moment shot in the lower part of this stomach.771 The bullet tore through the boy’s body and shattered the shop window.772 The family was given assistance by people who emerged from a nearby restaurant.773 Witness AG was taken to an emergency unit774 and then hospitalized for several days.775

  286. The Trial Chamber is satisfied that the incident occurred as recounted by the witnesses and that Witness AG was a civilian.

  287. The Defence submitted that Witness AG was not deliberately targeted from SRK positions but was wounded by a stray bullet from combat activity.776 The evidence shows, on the contrary, that there was no military activity in the area at the time of the incident. Witness AH testified that there was a cease-fire in place that day, and that she and her children had gone out precisely because there was no fighting.777 Witnesses AG and AH said that no soldiers or military vehicles were in the vicinity of the incident.778 No shooting was heard prior to the moment of the incident.779 Several children were playing nearby780 and the neighbourhood restaurant was open.781 The Trial Chamber therefore finds that the victim was not hit by a stray bullet but was deliberately targeted.

  288. The Defence further submitted that there was no clear line of sight from SRK positions to the location of the incident.782 Witnesses AG and AH did not claim to know where the shot originated from.783 The police investigation showed that, in fact, two shots had been fired in quick succession, the second bullet striking the restaurant nearby.784 From an examination of the bullet marks in the restaurant,785 the police concluded that the shots were fired from the Przulje house on Zagorska Street, on SRK-controlled territory on Hrasno Brdo.786 Given that the two bullets were fired in quick succession, the Trial Chamber concludes that they were fired, if not from the same weapon, then from the same location. Witness DP16 claimed that the site of the incident was not visible from SRK positions,787 however the visual evidence presented to the Trial Chamber demonstrates that a clear line of sight existed.788

  289. The Trial Chamber therefore finds that Witness AG, a civilian, was injured by a shot deliberately fired at him from SRK-controlled territory on Hrasno Brdo.

    (c) Alipasino Polje Area

  290. Alipasino Polje is a residential neighbourhood in the west of Sarajevo. It is bounded by Mojmilo hill and the neighbourhood of Dobrinja to the south, and by the neighbourhood of Nedarici to the west and south-west.789 The whole of Alipasino Polje was on the ABiH side of the confrontation line, which separated it from Nedarici.790 The line at this point extended from west to east and curved into ABiH-controlled territory. The result was that Nedarici was bordered on three sides by territory controlled by the ABiH; a west-running corridor connected this neighbourhood with the more expansive SRK-controlled territory to the west.791 The Prosecution adduced evidence to prove that attacks on civilians in Alipasino Polje were launched from the SRK-controlled territory of Nedarici, in particular from a collection of buildings known as the “School for the Blind.” That evidence was adduced in general and also in relation to specific scheduled sniping and shelling incidents, which are detailed below.

    (i) Nedjarici and the School for the Blind

  291. The Nedarici neighbourhood, where the SRK held a salient in the ABiH lines, consisted mostly of low buildings of one to two storeys.792 The portion of Nedarici east of Ante Babica Street and south of Djure Jaksica Street (now renamed Adija Mulebegovica), where there are higher buildings, was controlled by the ABiH together with Alipasino Polje. In certain areas, a street divided the two warring sides,793 but close to the Institute for the Blind, ABiH and SRK forces were only a few meters apart.794

  292. Fighting in the area was intense from the first months of the conflict, and soldiers from both sides constantly fired from and against the area. Mustafa Kovac, the head of the Civil Defence in Sarajevo during the war, and Commander Jacques Kolp, UNPROFOR Liaison Officer with the ABiH from March 1993 to November 1994, confirmed that a barricade was placed to protect civilians against sniping from the SRK-held part of Nedarici in Ante Babica Street.795 Kolp also stated that SRK snipers were known to fire from Nedarici against the tram line behind the Oslobodjenie building.796 Mirsad Kucanin, a member of Sarajevo Police force, stated that the perpendicular streets going towards Alipasino Polje (including Prvomajska Street), under ABiH control and inhabited mainly by BiH Muslims, were regularly targeted from Nedari ci.797 Kovac testified that bullets of different calibres, grenades or anti-aircraft guns, machine-guns, mortar grenades and shells and bullets from sniper weapons were fired from the Nedarici area.798 Fuad Djiho, a resident in the area, explained that the entire facades of the houses on Ante Babica Street were “pock-marked with shell pieces and grenades of all calibres and (the SRK( fired at apartment blocks where people lived.”799 According to Ismet Hadzic,800 commander of the Dobrinja Brigade of the ABiH, the shelling of Dobrinja took place from the Nedarici barracks, the area below the Institute of Theology, near Kasindolska Cesta.801

  293. Some specific incidents of alleged sniping from SRK positions were described by civilians during the course of the trial. Witness R, a woman hit while going to draw water from a well, recalled that on a winter day in 1992, she was facing Nedarici and, taking into account also the fact that the SRK “always shot at us from that part of Nedzarici”, she claimed that the bullet came from that area.802 Medina Omerovic, a girl living in the area, recounted that a sniping incident occurred in Spring 1994 on the northern part of Lukavicka Cesta, towards the confrontation line in Aleja Branka Bujica Street,803 causing the death of a 10-year old boy, Dejan Stefanovic.804 She testified that she could hear gunfire coming from “Nedarici” on her way to and from school, or on the road to her sister’s apartment.805 The witness believed that the fire came from the houses held by the SRK located on the right-hand side behind her building.806

  294. During trial, a considerable amount of evidence was tendered with regard to that group of buildings in Nedarici known as the “Institute for the Blind”, allegedly a major source of fire in SRK-held territory against civilians of the surrounding areas. Witnesses marked the confrontation line on a map in court as going south along Lukavicka Cesta street from the intersection where the Institute for the Blind is located.807

  295. Defence witnesses denied that shooting used to come from the Institute for the Blind. In particular, witnesses DP4, a member of the SRK company stationed in Nedarici, stated that he never saw rifles with telescopic sights there.808 Witness DP6 and witness DP8, both also SRK soldiers in Nedarici, stated that the view from the Institute for the Blind to Ante Babica street was obstructed.809 Witness DP6 also remarked that, although the SRK occupied the first floor of the Institute for the Blind, no fire could come from the upper two floors of that building, since it was dangerous to go there.810 The Trial Chamber was however confronted with UNMO daily situation reports pointing to the fact that the Institute for the Blind was indeed a source of sniping against civilians. A Report of 11 July 1994 describes the wounding of a 17-year old “Bosnian male” at the intersection of Ante Babica street with Aleja Branca Bujica, with UNMOs suspecting that “sniping came from BP859578” (the Institute for the Blind); the report also highlighted that it was “the third casualty (all civilians) in the same spot in the last few days.”811 With reference to the previous day, an“UNMO BH Command” report dated 13 July 1994 stated that the commander of 1st Battalion of the SRK Ilidza Brigade admitted that sniping did originate from Bravo PAPA 859578 (“House for the Blind People”), and “promised that there would be no more sniping from that place.”812

  296. Moreover, many residents of the neighbourhood, or the surrounding areas, asserted that the Institute for the Blind was indeed a source of sniping against civilians. Fajko Kadric, a member of the ABiH and of the Sarajevo Civilian Defence, stated that there was always danger from the Institute for the Blind and that his truck was hit a number of times on the same side at the intersection between Ante Babi ca street and Djure Jaksica street (later renamed Adija Mulebegovica).813 Both Fajko Kadric and his son Faruk, almost 16 years old at the time, believed that shooting on 4 October 1993 came from the Institute for the Blind.814 Marko Kapetanovic, a 60-year old resident of the area, and Fuad Djiho, a reserve policeman living in Alipasino Polje, testified that shooting on 13 March 1994 on Ante Babica Street came from the Institute for the Blind.815 Djiho stated that “it was common knowledge that (the Institute for the Blind and the Faculty of Theology were( one of the snipers’ strongholds.”816 Omerovic explained that, during the years of war, and based on what she heard, she gained a sense that sniping fire came from the Institute for the Blind and the surrounding area.817

  297. All these witnesses provided detailed evidence in relation to instances during which they were shot or instances where they witnessed shooting at civilians from SRK-controlled territory. The Prosecution specifically alleges these incidents under number 13, 21, 23, and 25 in Schedule 1 of the Indictment as representative of attacks on civilians from the SRK-held areas of Nedjarici.

    (ii) Scheduled Sniping Incident 13818

  298. Fajko Kadric was a butcher in Vojnicko Polje.819 He owned a refrigerated truck,820 with the mark “Mesnica” (The Butcher’s) written in large letters on the right -hand side,821 which he regularly used during the armed conflict mainly to transport water or flour for the Civilian Defence.822 On the morning of Monday 4 October 1993, Fajko Kadric was carrying flour from a bakery to the Civil Defence in Vojnicko Polje, now Saraj Polje, with his truck.823 Although Fajko Kadric also served in a small company of the 5th Motorized Brigade of the ABiH,824 he explained that, on the day of the incident, he was on duty, that is “civilian work.”825 Faruk Kadric insisted that his father did not use the truck for the army.826 Faruk Kadric was sitting in the second passenger seat to the right of Fajko Kadric, who was driving827 when at about 11:15 am,828 they turned left into Ante Babica street and headed south; the truck was travelling at a speed of about 20 to 30 km/h at the most, as it had a full load and was going uphill.829

  299. Both witnesses asserted that nobody was around except for an UNPROFOR APC, stationed to their right and about 100 meters down Ante Babica street, at the intersection with Djure Jaksica street (later renamed Adija Mulebegovica street).830 At the point where Aleja Branca Bujica forks off and the 10-storey high building of the student hostel (Studentski Dom) is located,831 an explosion was heard.832 Faruk Kadric was hit in the neck.833 Both father and son heard the sound of the shot coming from their right as they passed the intersection834 and asserted that the bullet most probably came from the Institute for the Blind.835

  300. Fajko Kadric continued to drive and stopped where the UNPROFOR APC was stationed.836 UNPROFOR soldiers helped them and transported Faruk to their dispensary.837 According to the doctors, the wound in the neck had been caused by a fragmentation bullet;838 several metal fragments are still visible on the X-rays of his neck and could not be removed as an operation would risk leaving him paralysed.839

  301. All the buildings in front of the Institute for the Blind were destroyed and had been levelled.840 Further, the student hostel was completely hollow and could be seen through.841 A small barricade had been placed at the intersection across Aleja Branca Bujica.842 After reviewing the evidence,843 Milan Kunjadic, the Defence expert on ballistics, conceded that he did not know the height of the barricade or the state of the buildings during the war and recognised that he could not exclude the possibility that the truck could be seen above the barricades and through the damaged buildings.844 He also acknowledged that a sniper might have been able to follow the truck above the barricade and through the hollow buildings, and be ready to shoot precisely when the cabin window emerged under the stipulated circumstances.845

  302. Although the Trial Chamber is convinced that Fajko Kadric was hit by a bullet, it finds it difficult to reconstruct the event with due certainty, in particular in respect of the position and the speed of the truck in relation to either barricades, both close to and further from the intersection, and to the nearby buildings, to conclude beyond reasonable doubt that the shot was fired deliberately from SRK -held territory to hit Fajko Kadric on the passenger seat of the truck.846 This incident can therefore not be accepted as exemplary of deliberate sniping by the SRK at civilians.

    (iii) Scheduled Sniping Incident 21847

  303. On 13 March 1994,848 Ivan Franji c, 63,849 and Augustin Vucic, 57,850 were wounded by one or more bullets on Ante Babica street. They were both civilians 851 and Catholic Croats living in the same neighbourhood.852 The evidence presented in respect of this shooting, as seen below, is inconsistent to the extent that it created insurmountable difficulties for the Trial Chamber to reconstruct the event in which Ivan Franjic and Augustin Vucic were hit by one or more bullets.

  304. Marko Kapetanovic, a man allegedly walking with them on that day, testified that he was not able to identify his own exact location or that of the victims at the time of the incident. In particular, the position he indicated on site while videotaped853 differed from the one he pointed to on a photograph presented to him during trial854 and from the one he had marked on a map out of court.855 In another portion of his testimony, he explained that his two friends were shot about 10 meters from the pedestrian crossing on the east side of Ante Babica street in front of the student hostel.856 Although these three locations are all within 200 meters one from the other and are all along Ante Babica street, the Trial Chamber is bound to take the discrepancies into consideration.

  305. Fuad Djiho, a policeman present on the scene who later extended help to the wounded men,857 testified that he found these men at two different locations: Vucic at approximately the same location as the one pointed to by Kapetanovic on the photograph,858 while Franjic was 70 or 80 meters south, along Ante Babica street.859

  306. Kapetanovic stated that a single bullet hit the two victims860 and grazed his own belt.861 He testified that he did not hear any specific noise made by the bullet and could not assert with certainty whether one or two bullets were fired;862 nonetheless, he assumed that the injury to the two men was caused by one single bullet,863 which had entered the stomach of Vucic above the navel.864 Djiho, on the other hand, testified that he clearly heard two separate shots.865

  307. Both witnesses assumed that the shooting came from the Institute for the Blind,866 but it is unclear on which basis they made this assertion.867 Djiho stated that the bullet came from Nedarici, which he was facing when he heard the shots.868 Kapetanovic stated that, since they were moving towards Dobrinja, he believed that the bullet came from their right;869 later in his testimony, he however seemed to indicate the low building (not established to be under SRK control) in front of the student hostel as the source of fire.870 Djiho explained that the Institute for the Blind and the Institute of Theology dominated Nedarici and that it was common knowledge that those two buildings were snipers’ strongholds.871 Both witnesses also indicated that the destruction of some buildings left an open view from the Institute for the Blind to the position of the victims.872 Djiho also declared that barricades were set up on Ante Babica street, across Aleja Branka Bujica;873 by contrast, Kapetanovi c stated that he never saw barricades at that location.874

  308. With regard to the aftermath of the incident, Kapetanovic testified that a man and a woman came to help the two injured men.875 Both Kapetanovic and Djiho indicated that they stopped a car to have Franjic taken to the hospital.876 Shortly thereafter, they stopped another car, which transported Vucic to Kosevo hospital.877 Franjic, now deceased, had instead made a statement to the Prosecution that a policeman had given him the first medical aid; he had not noticed Vucic or Kapetanovic close by.878

  309. In view of the inconsistencies of the evidence, in particular in relation to the exact location of the three men, the assumed source of fire, the time of the incident and the course of events after the men were hit, this incident cannot be accepted as exemplary of deliberate sniping by the SRK at civilians.

  310. The conclusions in the following incident express the views of the Majority of the Trial Chamber. Judge Nieto-Navia expresses his view in the attached separate and dissenting opinion.

    (iv) Scheduled Sniping Incident 23879

  311. Fatima Salcin, a middle-aged woman who was living in Alipasino Polje in 1994, testified that around 13 June1994 a cease-fire was in place and she and a relative of hers, Djemal Maljanovic, were returning from Dobrinja on foot to Alipasino Polje.880 As Salcin described the incident, suddenly her hand “just went up in the air”.881 A bullet had struck the palm of her right hand and had come out the other side.882 The sound of shooting then rang out.883 The witness thought it was a machine-gun burst.884 It was the first shooting she had heard all day.885 Salcin was dressed in a blue skirt and a leather jacket.886 She could not recall the exact time of the incident, but thought it was sometime in the evening, between 6 and 7.30 p.m.887 Although a light rain was falling, there was still some natural light.888 Maljanovic pulled Salcin down to the ground, where they remained until the shooting was over. With Maljanovic’s help she was taken to a hospital in Dobrinja.889 A discharge report from Dobrinja General Hospital shows that Fatima Salcin was admitted on 13 June 1994, with an “entry-and-exit wound to her right hand”, and discharged fifteen days later.890 Djzemal Maljanovic gave a similar account of the incident. In June 1994 the witness was 52 years old.891 He had joined the ABiH at the start of the war and was discharged in January 1993.892 He testified that on 13 June 1994 he and Salcin were walking home dressed in civilian clothes and unarmed.893 It was late afternoon, it was overcast, and it was drizzling.894 But visibility, according to the witness, was good.895 They had turned off Lukavicka street and were walking up the slope of Ive Andric a street when Salcin was shot.896 Maljanovic said that there had been some screening along Lukavicka street providing protection against snipers, but once they had started ascending Ive Andrica street they had become exposed.897 Once they had ascended above the level of the protective screens, Maljanovic “turned around [and] saw that it was dangerous. At that very moment there was a shot.”898 They fell to the ground and “then there was a second shot, which couldn’t hit us.”899 They rolled down the hill to safety. At the hospital the witness heard that two other people had been shot in the same area earlier in the day.900

  312. As to the existence of military targets in the vicinity of the incident, Fatima Salcin said that other people had been out in the streets in the area and as far as she could tell none of them were soldiers or in uniform.901 Nor did she notice any type of military equipment.902 Salcin was shown recent photographs of herself and Maljanovic standing approximately at the spot of the incident.903 In the distance behind them can be seen a cluster of buildings which Salcin identified as Nedarici. According to the witness the bullet which struck her hand came from this “general direction”, for it was from this direction that she had heard the sound of gunfire.904 Djzemal Maljanovic testified that at the time Salcin was shot there had been no soldiers or persons in military uniforms or military equipment in the immediate vicinity of the incident.905 He added that at the time of the incident there had been “machine-gun nests […] on the former barracks and […] on the Catholic monastery.”906 The barracks was the former JNA barracks located in Nedarici which during the conflict had come under the control of the Bosnian Serbs.907 Maljanovic marked on a map the position on Ive Andrica street where he and Salcin were when Salcin was shot, as well as the location of the nearest confrontation line, the barracks, and the so-called monastery.908 The barracks, as marked by the witness, lay approximately 1,000 metres north of the monastery. The place where Salcin was shot was about 1,400 metres southeast of the barracks and 1,100 metres east of the monastery.909 Maljanovic remarked that “they targeted us from the back”.910 Asked how he knew that the source of fire was the barracks or the monastery he answered that these were well known sniping nests and that more than 500 people had been killed along a stretch of road half a kilometre long, hence the protective screens erected on Lukavicka street.911

  313. Defence Witness DP5 was a member of the Territorial Defence in Nedarici and later an SRK officer located at the former JNA barracks in Nedarici.912 He testified that there was a cannon just east of where Salcin was shot which was used to fire at Nedarici.913 The gun emplacement, said the witness, was alongside a road cut into the hill and was concealed with camouflage netting, however its location could be seen with binoculars from atop the former JNA barracks in Nedarici. The ABiH crew operating it was stationed nearby.914 There was, according to DP5, exchange of fire between the two sides in this general area every two or three days. The witness did not specify any time period.915 He did not say whether the cannon was in place and operational in June 1994. Witness DP5 also testified that there was a water reservoir at a spot about 150 metres south of the location of the sniping incident which had been a JNA position before it was captured by the ABiH in the early months of the war.916

  314. In its final oral arguments the Prosecution did not claim that the shot came from the barracks or from the monastery but “from the vicinity of the cone that we see on the map [i.e. P3728 (incident 23], to the west of the front-line positions ” (the cone’s apex is the spot of the incident and its base is a north-south line about 200 metres long drawn against the eastern edge of the monastery).917 The Prosecution referred to the Defence’s submission in its acquittal motion that Salcin was the victim of a stray round, dismissing it as unsupported by the evidence. In the Prosecution’s view, the fact that the shooting continued is evidence that the two witnesses were specifically targeted. Without giving reasons, the Defence excluded the barracks as the source of fire and argued that when consideration is given to the fact that it was raining, that it was between 6 and 7.30 in the evening, and that the distance between the monastery and the site of the incident was considerable, Salcin and Maljanovic could not have been seen and so could not have been deliberately targeted.918 The possibility cannot be excluded, according to the Defence, that Salcin was shot accidentally.

  315. The issue for the Majority is whether Salcin and Maljanovic were deliberately targeted by the SRK and, if so, whether they were targeted as civilians. The evidence suggests that the bullet which struck Salcin in the hand came from behind her. At the time Salcin and Maljanovic were at least 300 metres east of the nearest confrontation line (which ran approximately north-south) and they were facing east.919 The evidence does not assist the Majority to determine the exact source of the gunfire. As for the direction, the only certainty is that the bullet struck Salcin’s palm and lifted her arm up in front of her. This suggests a westerly direction.

  316. The Majority is convinced that the shot was fired from within SRK-controlled territory, by SRK personnel, to the west of the confrontation line, for there is evidence920 that many people were killed or wounded in this area by fire from across the confrontation line and that protective screens had been erected in response to the attacks. There is evidence that two other persons had been shot from across the confrontation line earlier on 13 June 1994.921 There is no reason to believe that Salcin was shot by ABiH forces or by anyone else located in the narrow and exposed strip of land between the confrontation line and the position of the witnesses. Having inferred that the bullet (and any follow-up shots) came from SRK territory, the Majority must now consider whether Salcin and Maljanovic were deliberately targeted by the SRK. The two witnesses had been walking for some time before the incident occurred. They did not report that any military activity was underway in the area. Salcin believed a ceasefire was in effect and observed that other civilians were out and about at the time. Maljanovic was apprehensive about taking the shortcut to Alipasino Polje up along Ive Andrica street, not out of concern of being caught in any cross-fire but out of fear that if he and his companion rose above the level of the protective screens on Lukavicka street they would be exposed to SRK sniper fire, which was common in that area and had claimed many victims. If the cannon referred to by Witness DP5 was indeed operational at the relevant time, Salcin and Maljanovic could not have been reasonably confused with the crew operating it. The Majority accepts that the two witnesses had travelled the road between Alipasino Polje and Dobrinja before and were aware of the dangers. Their assessment of the prevailing conditions at the time of the incident must be given due weight. They did not walk into a fire fight. The evidence suggests that the shooting ceased after Salcin and Maljanovic rolled down the slope to safety. The Majority thus finds that the two witnesses were deliberately targeted from SRK-controlled territory.

  317. Salcin and Maljanovic were civilians, were dressed as civilians, and presented no conceivable military threat. The Trial Chamber, by majority of its members, finds that they were deliberately targeted from the SRK-controlled area, if not attacked as civilians, then in reckless disregard of their civilian status.

    (v) Scheduled Sniping Incident 25922

  318. On 26 June 1994, a sunny early evening, between 19:00 and 19:30 hours, Sanela Muratovic, 16, and Medina Omerovic, 17, were walking side by side from the house of Omerovic’s sister to Omerovic’s apartment in Djure Jaksica Street 17 (on the eastern side of Lukavicka Cesta), in the neighbourhood of Vojnicko Polje (Novi Grad).923 Muratovic, a civilian, was wearing a T-shirt, trousers and sneakers, while Omerovi c was wearing shorts.924 As the two young women were about to cross the street towards Omerovic’s apartment block, some soldiers in uniform warned them of incoming sniper fire; they therefore started running.925 Muratovic was shot on the right-hand shoulder, from the front side.926 Both the witness and Muratovic went on and took shelter in a trench located to their right;927 some of the soldiers who had warned them came to their rescue.928

  319. The spot where Muratovic was wounded (her right shoulder) and the fact that the witness, walking to the left of the victim, was not wounded, tend to indicate that the bullet came from their front right.929 The witness marked a confrontation line on the map of the area, placing it behind her apartment block, through the Institute for the Blind, an SRK position on Aleja Branca Bujica.930 The Trial Chamber, taking into account the maps and photographs discussed at trial as well as the testimony of Omerovic, which apart from minor inaccuracies, was clear, direct, consistent and reliable, finds that a bullet coming from the front on the right-hand side of the two girls could have been shot with precision from the Institute for the Blind. Some defence witnesses confirmed the presence of the SRK in the Institute for the Blind but testified that the building could not have been a source of sniping fire.931 The Trial Chamber is not convinced by the testimony of these witnesses. UNMO reports932 and other witnesses had found that the Institute of the School for Blind was a “ sniping nest” from where civilians were shot at.933 The Trial Chamber finds that the shot which hit the victim originated from the area of the Institute for the Blind.

  320. The Defence submits that the victim was hit “by chance” during combat;934 this contention seems based on an acknowledgement by the Prosecution that, in the area, there were daily clashes between the armies, ABiH soldiers were positioned in high-rise buildings and that soldiers had warned the two girls that they should not be going out because “there was firing”.935 The Trial Chamber notes that the warning was that “sniper fire had started and to hurry up.”936 The fact that one single shot was fired and directly hit Muratovic, finally, corroborates the finding that the incident was not caused by a “lost shot” during ongoing combat. In order to exclude the possibility of a bullet hitting Muratovic by mistake, or of a ricochet, the Trial Chamber takes into specific account the submission by Omerovic that soldiers were not garrisoned in the immediate vicinity of the spot where the incident occurred, and that the witness was not aware of any military facility nearby;937 moreover, no fighting was ongoing in the area at the time of the incident. The distance between the area of the Institute for the Blind and the position of the victim at the time of the incident was about 200 meters.938 At that distance, the age, the activity and the way the girls were dressed could not be ignored by the perpetrator. Their civilian status was thus obvious for anyone located at such a short distance.

  321. The Trial Chamber finds that Sanela Mutarovic, a civilian, was deliberately targeted from SRK-controlled territory.

    (vi) Scheduled Sniping Incident 26939

  322. In 1994, Rasid Dzonko, a man aged 67 years, lived on the 7th floor of an eight -storey apartment block at Senada Mandica Street, no. 5940 located in the area of Vojnicko Polje, a sub-part of Alipasino Polje. Dzonko shared the apartment with one of his daughters, Mediha Golo, and her husband.941 On a July evening, at about 22:30 hours, Dzonko, his three daughters, his son-in -law and two grandchildren gathered in the kitchen of the apartment to watch a football game on TV.942 D‘onko and his family would usually avoid staying in the kitchen because it faced the direction of the front line,943 and the balcony running along the kitchen had been damaged by shelling.944 Dzonko emphasised that the lights were off,945 the blinds of the kitchen window, which was covered with two blankets to block the view, were pulled down,946 and the bottom half of the glass door leading into the balcony was ‘covered’ with wood planks.947 According to Dzonko, “you couldn’t see anything”.948

  323. At approximately 22:45 hours, Dzonko was seated in front of the television set placed at one end of the kitchen, opposite the balcony door,949 when a bullet came through the kitchen door frame, ricocheted against the brick wall close to Dzonko, hit him in the middle of the back to the left side of his spine, exited through his stomach, then continued through a cupboard door and into a chandelier.950 Dzonko was taken to Dobrinja hospital for first aid and then to Kosevo hospital, where he stayed for 13 days.951 While in hospital, Dzonko was told by his son-in-law that members of a UN military organisation came to his apartment to take photographs of the impact points of the bullet which had hit him, and had removed the bullet.952

  324. The Prosecution submits that while the victim “was not visible to persons outside the balcony because of the nature of coverings over the windows the evidence that the television was on (at night) and facing the windows (in the direction of the SRK-held territory) and the fact that there was only one shot is persuasive evidence that it was intended and fired at the apartment deliberately, with the intent of shooting whoever was inside”.953

  325. The Defence argues that Dzonko is not a credible witness,954 and that the circumstances in which the incident occurred exclude the possibility of deliberate targeting.955 The Defence argues that the possibility of a direct shot is excluded because there was no line of sight between the front line and the victim’s apartment block and because the approximate distance between one of the suspected sources of fire (the Faculty of Theology) and the victim’s apartment is 1,000 metres. According to the Defence, for a bullet to “break through the wooden planks”, go “through the witness’s body, hit the wall, the door and the cabinet, the projectile must have been fired from a small distance”.956

  326. Although the testimony of Dzonko was disorderly, the main features of his testimony are consistent and reliable. D‘onko testified that people in the neighbourhood who heard about the incident assumed that the bullet which had hit him had been fired from the area of the School of Theology, widely known to be an SRK sniping nest.957 Dzonko had no doubt that that assumption was right “because it couldn’t have come from anywhere else. That was the only possible place”.958 He explained this was because of the bullet trajectory.959 The bullet came through the balcony door, which faced the direction of the Faculty of Theology as well as the front line.960 The distance between the Faculty of Theology, located in Nedjarici,961 and the spot where the victim was shot is approximately 1000 metres and the distance between the SRK front line and the victim’s apartment block is approximately 250 metres.962 Dzonko testified that his apartment block was on the side of the ABiH,963 and that although his apartment block was located behind two other apartment blocks, there was an open space of about 10 metres between these two buildings, thus there was a line of sight between his apartment and the front line.964 Dzonko pointed out on photographs tendered into evidence the location of the confrontation line and the Faculty of Theology, “where the Serbs fired from,”965 and explained that from that location, the Serbs “could target everything”.966 In these photographs, a line of sight can be seen between Dzonko’s apartment and the front line.967 Dzonko further testified that during the time he lived in his apartment close to the front line, “there was shooting and shelling almost every day”.968 Dzonko pointed out on photographs of his apartment block impact points of fire coming from the direction of the front line.969 He explained that the front entrance of his apartment block which faced the front line could not be used in daytime during the conflict because residents could be shot.970 Defence witness DP8, an SRK soldier stationed in Nedjarici in 1993, was shown a picture (P3279T) showing a line of sight between Nedjarici and Dzonko’s apartment block, and he admitted that there was a line of sight from the Faculty of Theology to the site of the incident.971

  327. D‘onko testified that there was "very little shooting" before he was shot and that he did not hear any shooting after he was shot.972 He emphasised that there were no soldiers positioned in the building where he lived at the time of the incident.973 He acknowledged that he sometimes saw unarmed Bosnian soldiers in groups of two or three going to have breakfast or lunch “when there was a lull in the fighting”,974 because there was a kitchen for them in another apartment block about 100-150 metres away from his.975 Some of these ABiH soldiers wore uniforms,976 and they would move through connecting trenches,977 which could be seen from Mediha Golo’s bedroom.978 The Trial Chamber takes due consideration of the fact that the witness was hit by a single ricocheting bullet fired through a door whose upper part was made of glass, while watching television on the 7th floor of an apartment building. Yet, the Trial Chamber cannot exclude the reasonable possibility that the bullet, which hit Dzonko, was fired during an exchange of fire since he testified that he heard “very little shooting” before he was shot. The Trial Chamber is thus unable to find that beyond reasonable doubt the victim was shot in a deliberate manner and cannot accept this incident as exemplary of a campaign of fire at civilians.

    (vii) Shelling incident in Alipasino Area

  328. The Trial Chamber heard evidence in relation to the shelling of the Alipasino Polje area. A report of the UNPROFOR stated that two shells landed in the area of Alipasino Polje one morning of 1993, killing 7 persons and wounding 54 others.979 Based on the results of a crater analysis, UNPROFOR determined that the projectiles were 120 mm mortar shells which had arrived from the southwest.980 UNPROFOR also indicated that possible sources of fire were located in the areas of “Nedarici … [or] Butmir … [or] Igman,” but concluded that “It is impossible to say with exactitude whether the shells are from the Bosnian or Serbian side.”981 Mykhaylo Tsynchenko, an Ukranian officer who served with the UN in Sarajevo from November 1993 to July 1994,982 remembered that on 11 January 1994 a “mortar mine detonated on a playground [in Alipasino Polje] … and that there were children playing there, and there were casualties among the children.”983 Referring to the same incident, a UNMO report confirmed that a location in “west Sarajevo was hit by 7 x 120 mm mortars”984 that day and that UNMOs had established that one person had been killed and four had been wounded.985 The authors of the report concluded that “it appears that the rounds came from the S.W. … [and that] it seems very likely that the rounds came from [SRK] weapons. However the evidence is not conclusive.”986 They added that “When questioned [the SRK] liaison officer strongly denied [SRK] responsibility.”987

  329. Other accounts supported UN reports that shelling in Alipasino Polje harmed civilians. John Ashton witnessed one shelling incident in December 1992,988 “at least an hour before dark,”989 which occurred “right outside the PTT [building where UN representatives were stationed] in which three people were killed, two others were wounded carrying wood that they had just cut.”990 He did not remember that there had been any soldiers among the victims.991 In the fall of 1993, local authorities of Sarajevo reported an incident where a shell landed on a classroom in a residential area of Alipasino Polje; the shell killed a teacher and three children aged between 6 and 9 as well as injuring 21 other adults and children.992 According to the report drafted about the incident, “The tail section of the shell was not found [on-site] because members of the [ABiH] had taken it away, but according to eye-witness statements and the assessment of the crime technician, it was a 120 mm shell fired from the direction of Nedarici.”993 Mirsad Kucanin remembered investigating an incident which also took place in the fall of 1993 in Alipasino Polje involving a single 120 mm mortar shell.994 The shell had landed in a residential area, killing three civilians and wounding 18 others,995 but that nearby there was “some kind of … a logistical base … where records of soldiers are kept. There was some kind of outpost there belonging to a unit.”996 Refik Agnanovic, who lived in Alipasino Polje for part of the conflict,997 remembered that on an unspecified date before 22 January 1994, the explosion of a shell killed a neighbour and his relative as they were unloading firewood.998 In view of the kind of impact of the shell left in the ground,999 he believed that the projectile had arrived from the west.1000 He added that the shells landed frequently in his neighbourhood.1001

  330. The Prosecution alleges the following specific shelling incident in Schedule 2 of the Indictment as representative of deliberate targeting of civilians in Alipa sino Polje and adduced detailed evidence to prove that shells launched from SRK- controlled territory targeted civilians in that area.

    (viii) Scheduled Shelling Incident 31002

  331. The two streets which are the focus of this incident were joined in a shape that is almost circular, as shown in Exhibit D1814, where the streets appear under their new names: Geteova (formerly Cetinjska) Street forms the northern half of the circle and Bosanska (formerly Klara Cetkin) Street the southern half. Within this circular shape, which was crossed by two other streets, were tall apartment blocks built along the edges of the four large plots of land formed by the intersecting streets; the centre of each plot was open parkland.1003 The distance between the site of the third scheduled shelling incident and the confrontation line to the west was about one kilometre.1004 A line drawn from the site of the incident running due west would cut through the northern tip of Nedarici, emerge into the ABiH-controlled territory of Stup, and after approximately 1,800 metres re-enter SRK territory south of Azici.1005

  332. In January 1994 Goran Todorovic was 12 years old and lived at No. 6 Klara Cetkin Street in Alipasino Polje.1006 On the 22nd of the month he was among a group of about ten children playing in a parking lot in front of his apartment block when he heard an explosion.1007 He testified that because the sound resonated between the buildings he could not tell where the sound of the explosion had come from; and that he later learned that two shells had exploded at that point, not one.1008 He ran towards the buildings for cover and just as he started climbing the staircase to his apartment another shell exploded, 10 to 15 metres away, wounding him.1009 Muhamed Kapetanovic was nearly ten years old in January 1994, when he was living at No. 2 Cetinjska Street.1010 On 22 January he was playing with four friends in a parking lot.1011 Another group of children was playing in Klara Cetkin Street.1012 Suddenly there was a loud explosion from one or two shells (the witness was not sure), whereupon the children ran for cover.1013 Just before Kapetanovic reached his building’s entrance, another shell exploded 10 metres behind the trailing child, killing him and wounding three of the others, including the witness, who suffered serious injuries to his leg.1014 Witness AI, who was 43 years old in 1994, testified that the morning of 22 January had been exceptionally peaceful, with no shooting.1015 A little after 11 a.m. he was walking along Klara Cetkin Street in Alipasino Polje where he lived, when he heard two explosions at a distance of 100 metres approximately.1016 Children playing a few metres ahead of him in a parking lot outside apartment blocks No. 2 and 4 ran to the buildings.1017 Before the witness himself could take cover, a third shell fell three to five metres to his left, the explosion throwing him into the air and seriously wounding him in the face.1018 Another witness, Refik Aganovic, was in his apartment on the 14th floor of No. 4 Klara Cetkin Street.1019 Around 1 p.m. he heard the “usual” hissing sound of a shell and then a loud explosion nearby.1020 About a minute or two later a second shell exploded.1021 The witness opened a west-facing window to see what had happened when a third explosion in front of the entrance to his block threw him back.1022 He rushed downstairs to the entrance where he saw a 13-year-old boy stagger over and die.1023 Another, younger, boy whom Aganovic said he tried to assist also died in those moments.1024 Other children, whom the witness did not recognize because they were covered in blood and were missing parts of their bodies, had also been killed.1025

  333. Witness Q was a police officer whose task was to conduct the opening stages of criminal investigations through inspection and collection of evidence at crime scenes.1026 The witness testified that he attended the site of the Alipasino Polje incident shortly after the explosions and found that two shells had hit the ground within 50 metres of each other. He saw blood and traces of tissue in the vicinity.1027 He informed the Trial Chamber that he himself lived in Alipasino Polje at the time, and that this was the first time the district had been shelled in about 26 days.1028 The report prepared by Witness Q, which is very brief, lists the names of six children killed by the shells.1029 Zdenko Eterovic was a judge and investigative magistrate who, in the period 1992 -1996 had carried out, according to his testimony, between 300 and 400 investigations, including 100 to 150 investigations of shelling or sniping attacks.1030 On 22 January 1994 he attended the site of the Alipasino Polje incident and prepared a report.1031 He was able to establish by interviewing witnesses and by observation of bodily remains at the site, as well as by visiting the two hospitals to which the casualties had been taken, that six children had been killed by the explosions and another three children and one adult (Witness AI) had been seriously injured.1032

  334. As to the source of fire, Goran Todorovic testified that he did not recall hearing the firing of the shells.1033 Muhamed Kapetanovic, who like Todorovic was outside playing, said he did not know which direction the shells had come from and did not mention hearing the firing of shells.1034 On the other hand, Witness AI testified that while he did not hear the first two shells being fired, in the “eerie silence” that followed their explosion, in something less than two minutes, he heard the hiss of the firing of the third shell, which exploded less than ten seconds later.1035 The firing sound came from “behind my back, from the part where Nedarici is”.1036 Witness AI, a civilian,1037 claimed familiarity with the sound of shelling originating in Nedarici because, as he put it, he lived in the immediate vicinity and was able to observe the shelling on a daily basis.1038 Refik Aganovic said his neighbourhood was frequently shelled, and altogether 10 people (nine of them children) from his apartment block had been killed in such attacks.1039 The witness suggested that the shells would generally come from the “west”.1040 Witness Q also said that, being a resident of Alipasino Polje, he was most fearful of the Nedarici settlement, which was directly visible from where he lived and which was under the control of the army of Republika Srpska.1041 From his apartment he would occasionally hear shells being fired from Nedarici towards Alipasino Polje.1042

  335. Mirza Sabljica and another ballistics specialist prepared a report on the incident.1043 The investigation team found traces from the explosion of three mortar shells, two 82 mm and one 120 mm, as well as the tail-fin from a 120 mm shell which had apparently hit the top of a building.1044 Sabljica confirmed the conclusions of his report, namely that one shell had impacted with the curb in front of No. 4 Klara Cetkin Street leaving a barely visible primary crater with star-shaped elliptical traces most clearly visible to the west of the crater – “slightly north in relation to true west”, according to the report – and measuring 120 cm; that another shell had impacted with the paved road in front of No. 3 Cetinjska Street leaving a 6 cm deep elliptical primary crater (15 cm by 20 cm) from which concentric lines emerged to form a larger ellipse with axes measuring 110 cm and 180 cm, the longer axis running west-east, with the distance of the crater from the western edge of this ellipse being the longest; and that a third shell (the 120 mm shell) had landed on soft ground in a park between Klara Cetkin Street and Rade Koncar Square, leaving a 40 cm deep crater, whose elliptical shape measured 80 cm and 110 cm, the longer axis oriented west-east with traces longer and more visible towards the west.1045 A total of six people had been killed by the first two shells, according to the report. Sabljica testified that on the basis of the “general pattern of destruction marks”, which, as noted, were more pronounced and longer in the westward direction, the investigation team concluded that two shells had landed from the west and one from just north of west – the rationale of the report being that the force of the explosion of a shell landing at an angle is downward-directed and therefore more destructive above the patch of ground lying in the direction of the shell’s approach.1046 Sabljica believed that all three shells originated in Nedarici, in the vicinity of the Institute for the Blind.1047 The report prepared by Witness Q also indicates that the shells “struck from the west (Nedarici)”. The witness testified that he had been able to determine the direction from the traces he found at the site.1048

  336. The Trial Chamber now summarizes the evidence on the existence of military activity and possible military targets in the vicinity of the incident. As indicated above, Alipasino Polje was quiet on the morning of the incident. Witness AI denied that there was a reserve police station in the area and said he had not seen any soldiers in the neighbourhood that day.1049 Likewise, Refik Aganovic, who had been walking in the neighbourhood shortly before the shells fell, testified that he had not noticed any kind of military activity.1050 One or two soldiers would be living in each apartment block, according to the witness, but there were no groups of soldiers or barracks in the area.1051 Goran Todorovic testified that he had not seen any soldiers or military activity in the vicinity of the playground.1052 He agreed, however, that the headquarters of a detachment known as Kulin Ban were located about 500 metres from the point of the second explosion.1053 Muhamed Kapetanovic also testified that while there were no soldiers or military activity in the vicinity of the incident, the staff of a detachment of local troops known as Kulin Ban was stationed in the basement of a residential building approximately 150 metres behind his apartment block, on the street then known as Rade Koncar Square.1054 Uniformed men would go from the detachment’s headquarters to the front line, and an armoured vehicle was often parked in front;1055 Kapetanovic last saw it four or five days prior to the incident.1056 Another witness, Mirsad Kucanin, a crime inspector, testified that the Kulin Ban unit was on Rade Koncar Square, about 200 metres from the site of the incident.1057 He described it as an administration office, and as the unit’s personnel department, and added that “mostly women” worked there and that no-one to his knowledge was in uniform.1058 But the witness also conceded that he did not have first-hand knowledge of Kulin Ban.1059 Zdenko Eterovic testified that his brother was a member of Kulin Ban, which he described as a Croatian unit based in Marin Dvor. He denied that Kulin Ban, or any military unit, was located in Alipasino Polje at the time of the incident.1060 Witness Q was shown a letter dated 24 June 1993, predating the incident by seven months, apparently from the Command of the ABiH’s 102 Motorized Brigade, ordering priority distribution of electricity to several of the brigade’s “localities”, including the “Basis of Stela (Zavnobih Square 17)”.1061 The witness acknowledged that the cited address of “Stela”, which he recalled as being a cafe, was between 50 and 100 metres from where the shells fell.1062 The witness also recalled that at the neighbouring Rade Koncar Square there was “some sort of” police station, but he could not remember anything more about it.1063 Witness AI testified that he did not know of any establishment called “Stela”, nor of a headquarters of the 102 Motorized Brigade, in Alipasino Polje.1064 Aganovic, Kapetanovic, Todorovic, and several other witnesses also testified that they had no knowledge of a “Stela” in the area, or at all.1065 Witness Vahid Karavelic said he had some recollection of a cafe named “Stela” but was not sure where it had been located; he said he did not think it had been a command post.1066

  337. The Defence did not dispute the allegation that three mortars shells, two 82 mm and one 120 mm, exploded in two streets and in a neighbouring park, as described above.1067 However, it argued that the place of origin of the shells has not been established;1068 that even if the shells in question originated in SRK-controlled territory, evidence adduced from Muhamed Kapetanovic established that a military unit had its headquarters a few dozen metres away from the site of the incident, so that the resulting civilian casualties must be understood as collateral;1069 that the possibility of a mistake cannot be completely excluded;1070 that the possibility of a staged attack by the ABiH (for propaganda purposes, presumably ) against territory under its control cannot be completely excluded;1071 and that a Prosecution “insider” witness, Witness AD, testified that he had never received an order to fire at children or playgrounds – from which the Defence claims it may be inferred that no other soldiers on the SRK side had received such orders.1072 The Defence adopted the arguments presented in the Vilicic Shelling Report in relation to the incident.

  338. The Prosecution submits that four mortar rounds (not three, as in the Indictment) were fired into Alipasino Polje in the early afternoon of 22 January 1994, three of which hit the ground, killing six children and wounding several more children as well as one adult civilian.1073 Possible military posts referred to in the evidence, even assuming they were operational at the time of the attack, were 200 metres or more away from the vicinity of the explosions, and this fact excludes the possibility of a sequence of firing errors.1074 The Prosecution cites evidence that SRK mortar units could expect their first shot to be accurate within 50 metres.1075

  339. Having considered all the evidence, the Trial Chamber finds beyond reasonable doubt that three mortar shells (two 82 mm and one 120 mm calibre), were fired into the residential neighbourhood of Alipasino Polje around noon on 22 January 1994, killing six children and injuring other civilians, including children. The evidence is insufficient to establish that a fourth shell was launched as part of this attack. The Trial Chamber accepts the unanimous testimony of the eyewitnesses that the attack was carried out on an otherwise quiet day during a lull in hostilities (a lull of many days, according to Witness Q). No activity of a military nature was underway in the neighbourhood, nor were any soldiers to be seen, and groups of children, including Todorovic and Kapetanovic, had gone out onto the streets to play. Witnesses AI and Aganovic had taken advantage of the local peace to go walking in their district.

  340. The Trial Chamber accepts the Defence’s argument that it has not been established beyond reasonable doubt that the shells were fired from the vicinity of the Institute for the Blind in Nedarici. Of the three witnesses who were outdoors at the time of the incident, only Witness AI claimed to have heard the sound of a mortar being fired, that is, the firing of the third shell, though not the firing of the first two. The Trial Chamber is not persuaded that Witness AI, who was at ground level on a street flanked by tall buildings at some distance from Nedarici, was in a position to accurately identify the sound he heard as the sound of a mortar being fired in Nedarici. The Trial Chamber has taken account of the testimony of Witnesses Q, AI, Kapetanovic, and Aganovic that this was not the first time Alipasino Polje had been attacked from Nedarici. Witness DP17 used Exhibit D1814 to mark the position of an SRK mortar unit he had seen in Nedarici sometime in 1993.1076 According to the witness, the unit was equipped with one 82 mm mortar and one 120 mm mortar.1077 Ismet Hadzic also testified to the presence of 82 mm and 120 mm mortar launchers in Nedarici during the relevant period.1078 This evidence is insufficient for establishing that Nedarici was the source of the shells on 22 January 1994.

  341. Nevertheless, the precise location or locations from which the three shells were fired is not critical to the Prosecution’s case, and none is alleged in the Indictment.1079 The Trial Chamber finds that Mirza Sabljica employed the correct methodology to determine the direction from which the shells had landed, and considering that the impact traces were considerably more pronounced to the west of the craters, it can safely be concluded that the shells came in from either the west or north of west. Employing Sabljica’s measurements, the Vilicic Shelling Report asserts that an “elliptical crater (with axis 0.15 and 0.20 m) and about 0.06 m deep in the asphalt surface [of Cetinjska Street] coincides to action of an 82 mm mortar shell having a drop speed Vc slightly over 68 m/s ( see Table 8 [of the Vilicic Shelling Report]) indicating that it was fired with the first increment charge and at elevation of about 85o, corresponding to the range of 250 m”.1080 The Trial Chamber disagrees with this statement. Table 8 of the report concerns concrete, not asphalt surfaces. Secondly, Table 8, which has to be read in conjunction with Table 1 of the report, states that a 4 cm deep crater can be caused by an 82 mm shell fired without a charge and falling at an angle of 85.2 degrees. But it also allows for the same crater depth to be caused by a shell landing at an angle closer to 46.5 degrees where it has been fired with one or more charges. In the former case the maximum range of the shell is 84 metres, according to Table 1, but in the latter case the range is up to 1,325 metres on the first charge (the approximate distance of Cetinjska Street from Nedarici), up to 2,218 metres on two charges, etc. The same is true, according to the report, of a 6 cm deep crater: that is, it can be caused by a steeply fired and relatively slow shell, or by a relatively fast shell fired at a gentler angle. The Vilicic Shelling Report asserts that “the clues on the ground do not provide enough evidence to determine the direction of fire”, and thereby concludes that the drop angle must have been close to 85 degrees.1081 But this is contrary to the undisputed fact that the impact traces were strongly elliptical and significantly displaced to the west.

  342. The Trial Chamber notes that no evidence has been received on the level of charge used to fire the 82 mm shells in this case. The pronounced asymmetry of the traces does, however, suggests that the angle of the shells was not steep. Therefore, the Trial Chamber disregards the conclusions of the Vilicic Shelling Report in relation to this incident. The Defence’s assertion that the attack could have been staged by the ABiH is not supported by any evidence and is therefore dismissed. The Trial Chamber reiterates that a mere hypothesis is not a basis for reasonable doubt. Some fact or allegation must be relied on to turn a mere possibility into a reasonable one. Moreover, concerning the alleged possibility that the ABiH mistakenly hit Alipasino Polje while aiming at Nedarici, for which there is not the slightest factual basis, the fact that the two locations are about a kilometre apart, would necessarily exclude such allegation.

  343. The Trial Chamber finds that the three shells were fired from SRK positions somewhere to the west of Alipasino Polje. If the 82 mm shells were indeed fired with the first increment charge as asserted in the Vilicic Shelling Report (something which has not been established), they most probably originated in Nedarici, which was under SRK control.1082 But if higher charges were used, giving an 82 mm shell a range of several kilometres, they could have been launched from SRK positions further afield, i.e. west or southwest of Stup.1083

  344. The final question is whether the shells were aimed by the SRK at a military target in Alipasino Polje. There is no evidence that the so-called “Basis of Stela ” was a military facility in January 1994. A letter dated June 1993 refers to Stela as a “locality” of the 102 Motorized Brigade, without further explanation. Only two witnesses had heard of Stela, and both thought it was a cafe. If indeed the “cafe” was only 50 to 100 metres from the incident site (as reported by Witness Q), no military activity was reported in its vicinity. Three witnesses mentioned the base of Kulin Ban, locating it at a distance of 500 metres (Todorovic), 150 metres (Kapetanovic), and 200 metres (Kucanin) from the site of the explosions. Kulin Ban’s entrance was on Rade Koncar Square, a street on the eastern side of the housing block. The western side of the block was formed by Cetinjska and Klara Cetkin Streets, which ran into each other. In between the two rows of buildings fronting the streets lay open parkland, and it was there that the 120 mm shell struck. The Trial Chamber recalls that all four eye-witnesses to the attack testified that the third (or final) shell fell on the streets to the west – that is, Cetinjska or Klara Cetkin. So did one of the earlier shells. It follows that the 120 mm shell struck the park either first or second in sequence. It was the closest to where Kulin Ban is said to have been housed. Therefore it cannot be said that the three shells fell progressively closer to Kulin Ban. Considering the sequence of the explosions, together with the fact that the shelling ceased after just three volleys were fired, all of which landed wide of Kulin Ban (two at a distance of at least 150 metres), the Trial Chamber concludes that Kulin Ban was not the intended target of this attack.

  345. The Trial Chamber thus finds that the third scheduled shelling incident constituted an attack that was, at the very least, indiscriminate as to its target (which nevertheless was primarily if not entirely a residential neighbourghood), and was carried out recklessly, resulting in civilian casualties.

    (d) Dobrinja Areas

  346. The residential settlement of Dobrinja, which is situated alongside the airport to the south-west of the city, was constructed as the athletes’ village for the winter Olympics in Sarajevo in 1984. In the early stages of the conflict prior to the Indictment Period, it was isolated from the rest of the city.1084 The confrontation lines on the eastern side of Dobrinja ran approximately along a street separating the SRK-controlled areas of Dobrinja I and IV from ABiH-controlled areas of Dobrinja II and III B.1085

    (i) Orthodox Church and School of Theology

  347. The Trial Chamber heard evidence from witnesses living in ABiH-controlled areas of Dobrinja about shooting incidents from SRK-controlled areas of Dobrinja I and IV and Nedjarici, and in particular from the areas of the Orthodox Church and the School of Theology.

  348. Eldar Hafizovic remembered that sometime around November 1992, he helped an adolescent girl who had been shot during the day as she ran across Oslobodalica Sarajeva street.1086 With the help of an ABiH soldier, he pulled the girl to safety1087 and noticed that the victim, who was wearing jeans and a T-shirt, had been wounded in the face.1088 After the girl was injured, tracer bullets continued to be fired, enabling Hafizovic to determine that the shooting originated from the direction of SRK-controlled territory in Dobrinja I.1089 According to Omer Hadziabdic, a resident of Dobrinja IIIB,1090 civilians in his neighbourhood were shot from 1992 through until 1994.1091 Nedim Gavranovic, a resident of Dobrinja III,1092 testified without elaborating on how he had determined the source of fire that women and children were shot in his neighbourhood from Dobrinja IV.1093 According to Ismet Hadzic, the commander of the ABiH Dobrinja brigade,1094 the SRK had positioned soldiers in elevated areas around Dobrinja “in order to shoot at the population.”1095

  349. Residents of ABiH-controlled areas of Dobrinja singled out an Orthodox Church in Dobrinja IV, which had been under construction when hostilities broke out and retained external scaffolding throughout the Indictment period,1096 as one of the sources of sniping fire against civilians in Dobrinja. That church could be seen from the three bridges that linked Dobrinja II to Dobrinja III.1097 Three bridges were mostly used: the bridge close to the eastern part of the confrontation line going from Emile Zola street to the square,1098 the bridge used for traffic connecting Dobrinja II and Dobrinja III, then a pedestrian bridge also connecting Dobrinja II and Dobrinja III.1099 Sadija Sahinovic, a resident of Dobrinja II, testified that during the conflict “shooting went on incessantly” from Dobrinja IV;1100 people who crossed the bridge1101 were sometimes "wounded there from the church".1102 “Snipers weren’t selective in their choice. They targeted children and women, everyone ”.1103

  350. Residents also testified that there was no electricity or water in their apartment throughout the conflict.1104 Sahinovi c and other inhabitants of Dobrinja II fetched drinking water from a well in Dobrinja C5 and washing water from the Dobrinja river, where there was a bridge connecting Dobrinja II to Dobrinja III.1105 They could not stay long at the river, because "there was a sniper there who had a good view of the whole river. And he would shoot sometimes all day long, and many, many people got wounded and got killed at the river."1106 Vahida Zametica, another resident of Dobrinja II, said that "many, many people got wounded and got killed at the river."1107 Her mother, her brother and she would go to the river for water. They were shot at when getting water on “many occasions.”1108 The front line was "close enough to be able to snipe at us every day and to kill us."1109 Sandbags, up to a height of two meters,1110 were placed along the length of the bridge on both sides, to protect civilians crossing the bridge.1111 A well was being dug so that people would not risk being wounded or killed while fetching water from the river.1112

  351. Sahinovic and Zametica both testified about the killing of the mother of Zametica, an incident specifically alleged in Schedule 1 of the Indictment, number 6, as evidence representative of a campaign of sniping fire against civilians.

    (ii) Scheduled Sniping Incident 61113

  352. Sadiha Sahinovic testified that on 11 July 1993, at about 2 or 3pm,1114 she went with her friend Munira Zametica to fetch water at the Dobrinja river.1115 Sniping had gone on throughout the day.1116 Sahinovic explained that she and Zametica found shelter with a group of 6, 7 persons in an area under the bridge where the river ran.1117 They did not dare to approach the riverbank until Zametica overcame her hesitation 1118 and approached the riverbank. She was filling her bucket with water when she was shot.1119 It was too dangerous for Sahinovic and for Vahida Zametica, the 16-year old daughter of the victim who came to assist once alerted of the incident, to leave the protection of the bridge.1120 The victim was lying face down in the river, blood coming out of her mouth. Vahida heard the shooting continue and saw the bullets hitting the water near her mother.1121 ABiH soldiers passing by the bridge saw what had happened, positioned themselves on the bridge behind sandbags and shot into the direction of the Orthodox Church.1122 The victim was pulled out of the water and taken to hospital; she died later that afternoon.1123

  353. The Defence claims that the victim could not have been hit from “VRS” positions because the Dobrinja River or the victim could not be seen from there; the Defence argues that ABiH soldiers had fortified positions on the bridge, that combat was ongoing at the time the incident occurred and that the victim was hit by a stray bullet.1124

  354. Sahinovic testified that the bullets directed at the victim originated from the Orthodox Church in Dobrinja.1125 She, like the victim’s daughter, indicated that shooting at the river always originated from the Orthodox Church.1126 This is both consistent with the side of the bridge at which those who had come to fetch water had taken shelter as with the observations in respect of continuing fire which prevented those present from removing the victim from the riverbank. SRK firing positions on the tower of the Orthodox Church and nearby high-rise buildings were confirmed by several witnesses.1127 Photographs of the area tendered into evidence demonstrate conclusively that there was a line of sight between the tower of the Orthodox Church and the spot where the victim was shot. The explanation given by witness DP9 as to why it was unlikely that SRK soldiers would fire from the Orthodox Church is not convincing.1128 The claim by the Defence that from the place where the victim was shot no line of sight existed to VRS positions is contradicted by evidence in the Trial Record, in particular photographs of the site. The victim was at the north-western side of the bridge when she was hit. The possible sources of fire from where one could hit a person below the bridge are very limited, due to the tunnel-shaped watercourse of some length under the bridge. This has the effect of narrowing the area from where there is a line of sight to the spot below the bridge. The tower of the Orthodox Church is within that narrow area. The evidence remains uncontradicted that the area of the Orthodox Church from where the fire came from was within SRK-controlled territory.1129 The Trial Chamber is satisfied beyond reasonable doubt that the Orthodox Church area, Dobrinja IV, was controlled by SRK forces.

  355. The Trial Chamber also rejects the defence’s claim that ABiH soldiers at that time held fortified positions on the bridge and that the victim was hit by a stray bullet fired during combat. Reliable testimony establishes that ABiH soldiers passed by after the event and only then opened return fire in the direction of the Orthodox Church. In the present case, the activity the victim was engaged in, the fact that civilians routinely fetched water at this location and her civilian clothing were indicia of the civilian status of the victim. At a disctance of 1100 metres (as determined by Hinchcliffe), the perpetrator would have been able to observe the civilian appearance of Zametica, a 48 year old civilian woman, if he was well equipped, or if no optical sight or binoculars had been available, the circumstances were such that disregarding the possibility that the victim was civilian was reckless.1130 Furthermore, the perpetrator repeateadly shot toward the victim preventing rescuers from approaching her. The Trial Chamber concludes that the perpetrator deliberately attacked the victim. The mere fact that at the distance of 1100 metres the chance of hitting a target deteriorates does not change this conclusion. The suggestion by the Defence that the cause of death should be doubted in the absence of specific forensic medical information is also rejected. The course of events sufficiently proves that Zametica’s death was a consequence of direct fire opened on her.

  356. The Trial Chamber finds that Munira Zametica, a civilian, was deliberately shot from SRK-held territory.

    (iii) Scheduled Sniping Incident 181131

  357. The Prosecution also called Sanija Dzevlan, who lived in Dobrinja IIIA,1132 to testify about an instance where she was shot in Dobrinja.1133 She testified that on 6 January 1994, she cycled to the hospital located in Dobrinja II to pick up medicines for her sick mother.1134 The day was particularly calm,1135 and she was wearing brown trousers, a yellow anorak and was not carrying arms.1136 While cycling back from the hospital located in Dobrinja II, at about 3 or 4 pm,1137 she was shot in the buttocks just after crossing one of the bridges connecting Dobrinja II to Dobrinja III.1138 She felt a blow and realised that she had been shot when she saw 3 or 4 bullets rebounding off the concrete around her.1139 She managed to keep riding her bicycle and reached her home.1140 Her neighbours helped her to the hospital where she remained for about 10 days.1141 She was wounded on the buttocks but the bullet(s) did not hit the bones.1142

  358. The Defence does not contest that the victim was a civilian nor that she was wounded by a bullet, while crossing the bridge on Emile Zola street.1143 The Trial Chamber is indeed satisfied beyond reasonable doubt that the clothing of the victim, the activity she was engaged in (riding a bicycle), the fact that she was unarmed, were indicia of Dzevlan’s civilian status and would have put a perpetrator on notice of her civilian status. But the Defence claims that the evidence is insufficient to establish the source of fire1144 and interprets the fact that several bullets were fired as proof that there was combat activity at the time.1145 It further maintains that it is unlikely that the bullets were fired from as far as the Orthodox Church and hit the victim’s buttocks, when, being on a bicycle, she was barely visible behind the 1-1.5 meter-high barricade. The Defence notes in that respect that her testimony regarding the time when the sandbags were placed is inconsistent with the testimony of Sadija Sahinovic and Vahida Zametica.1146 All this, in the Defence’s view, makes it impossible to conclude that she was deliberately targeted.1147

  359. Dzevlan testified however that she was cycling in the direction of Dobrinja III, leaving behind her the bridge which connected Dobrinja III to Dobrinja II, when she heard fire coming from her right, from Dobrinja IV, the area of the Ortodox Church.1148 Witness DP9 confirmed that the building Dzevlan pointed at on photographs1149 was the Orthodox Church.1150 Dzevlan further testified that the area of the “church” was held by the SRK forces.1151 The Trial Chamber finds that witness credible and her evidence reliable.1152 The Trial Chamber has already found that the area of the Orthodox Church in Dobrinja IV was under SRK control. The Trial Chamber finds that the bullets which hit the victim came from the area around the Orthodox Church, thus either the building of the Orthodox Church or a building in the vicinity of that Church. The evidence conclusively demonstrates that there was a line of sight between the area of the Orthodox Church and the spot where the victim was shot.1153 The witness did not deny that barricades extended the full length of the bridge and then approximately one metre past either side of the bridge, offering thus some protection, but testified that she was shot in the open area where the barricades end. A close examination of the photograph of the spot where Dzevlan was shot, P3264, shows that there was a line of sight between the site of the incident and the area of the Orthodox Church. The Trial Chamber finds that there was no ongoing combat activity at the time and in the vicinity of the incident.1154 The only reasonable inference is that the bullet, coming from Dzevlan’s right-hand side, came from the direction of the Orthodox Church located approximately 800 metres from the site of the incident.1155 That Church was identified by credible and reliable witnesses as a source of fire in Dobrinja IV. The Trial Chamber finds that Dzevlan was shot from SRK-controlled territory.

  360. Dzevlan testified that several bullets ricocheted around her, while she was riding her bicycle and after she was hit. The Trial Chamber is satisfied that the sequence of events demonstrates conclusively that Dzevlan was deliberately targeted. In sum, the Trial Chamber finds that the victim, a civilian, was deliberately targeted from SRK-controlled territory.

  361. The Prosecution also tendered detailed evidence concerning another alleged example of deliberate sniping at civilians from the SRK-controlled area of the School of Theology which is identified in Schedule 1 of the Indictment under number 22. The conclusions found in this incident are that of the Majority of the Trial Chamber. Judge Nieto-Navia dissents and expresses his views in the separate and dissenting opinion appended to this Judgement.

    (iv) Scheduled Sniping Incident 221156

  362. In 1994, Ramiz Grabovica, an ABiH conscript in logistics, was employed by the public transport company to drive civilians on a regularly scheduled bus route between the Alipasino bridge and Dobrinja during cease-fires.1157 On 25 May 1994, a sunny day,1158 at approximately 11:40 am,1159 Grabovica reached his last stop at the intersection of Nikole Demonje Street and Omladinskih Brigada Street in the centre of Dobrinja,1160 stopped the red and white bus, opened the three doors of the bus and turned off the engine to save fuel.1161 As he waited for passengers to board, Grabovica heard a single shot1162 coming from the direction of Nedarici, which was controlled by the SRK,1163 precipitating panic on the bus.1164 Passengers, nearly all women who were not wearing military uniform or carrying weapons 1165 believed that a sniper was shooting at them from the Faculty of Theology in Nedjarici,1166 a notorious SRK firing position at the time of the event.1167 He saw that two middle-aged women had been injured. The one sitting on the right side of the bus was holding her knee and the other sitting in the opposite side of the aisle was bleeding profusely.1168 Grabovica explained that “at that moment, I was also in panic, but I realised that I had to drive them to the hospital. […] I switched on the engine, closed the doors, even though all the other passengers were saying, 'open, open, because the sniper is shooting’. […] I closed the doors, started, and because the hospital was about a hundred metres away, I went over the sidewalk and through a grassy patch, and I made it to the hospital.” 1169 The victims, Sehadeta Plivac and Hajra Hafizovic, were taken off the bus and remained at the hospital where they received medical assistance.1170

  363. After the incident, Grabovica drove back to the depot at Velikih Drveta on the Alipasino bridge,1171 where he was interrogated by the local police, who inspected the bus and took photographs of the bullet impact point. The police disclosed their findings to Refik Sokolar, a police investigator at the Novi Grad Public Security Station, who found that the source of fire was the School of Theology in Nedjarici.1172 Grabovica testified that he did not hear shooting prior or subsequently to the incident.1173 He added that there were no soldiers, military equipment or military activity in the immediate vicinity of the site of the incident or along the route he took on that day,1174 but that he saw members of the local civilian police along the way.1175

  364. The Majority of the Trial Chamber is satisfied that the events occurred as recounted by Grabovica and that the passengers of the bus were civilians. Although Grabovica was a military conscript employed to transport civilians in a bus of the public transport company, he did not carry weapons and was not dressed in a military uniform.1176 There is no evidence in the Trial Record, which could suggest that the bus transported combatants or was used for a military activity. The bus was visibly a civilian vehicle, which only functioned during cease-fires along a regularly scheduled bus route.

  365. The Majority of the Trial Chamber is also satisfied that the passengers of the bus were targeted from the area of Nedjarici.1177 Grabovica testified that the engine of the bus was switched off and that the area was quiet when he heard a single shot hitting the bus and the sound of gunfire coming from the direction of Nedjarici. In that direction, the SRK frontline was approximately 750 metres away.1178 Grabovica testified that there was a line of sight from the Faculty of Theology to the site of the incident.1179 On photographs of that site, Grabovica pointed out a shopping centre and two houses erected several hundred metres away from the alleged origin of fire,1180 which did not exist at the time of the incident and obstruct the line of sight to the Faculty of Theology.1181 Grabovica testified that he was interrogated by the local police, who inspected the impact point of the bullet on the bus. The local police communicated the results of the inspection to Sokolar, who testified that the victims were hit by a ricocheting bullet fired from the direction of Nedjarici.1182 The Prosecution alleges two sources of fire in Nedjarici. One of these sources is indicated by a red circle close to the confrontation line, north-west to the site of the incident. Witness DP8 testified that there was no line of sight between these two points.1183 A close examination of the map P3728 (incident 22) shows that indeed there is no line of sight because high buildings located along the Bulevar Branioca Dobrinja obstruct the view. In relation to the source of fire alleged by Grabovica, the witness testified that there was a line of sight between the Faculty of Theology and the site of the incident. According to the Defence witness DP8, there was no line of sight from which a perpetrator could have fired from the Faculty of Theology, because houses erected between the frontline and the site of the incident obstructed the view to the site of the incident. Grabovica explained, however, that the small constructions seen on the photographs and which obstruct the view to Nedjarici did not exist at the time of the incident. Witness DP8 testified that the Faculty of Theology was the highest building in the area of Nedjarici, which mainly consisted of houses. A close examination of photographs of the area of the incident shows that there is indeed a line of sight between the site of the incident and the Faculty of Theology. The Trial Chamber further notes that the distance between these two points is approximately 1,500 metres. Although a distance of 1,500 metres is great for small arms fire to aim at a target, the Majority has no doubt that a bus is an object big enough to be seen and targeted at such a distance (from or around the Faculty of Theology to the site of the incident). There is no evidence however, which could allow it to conclude beyond reasonable doubt that the gunfire which hit the victims originated from the Faculty of Theology. Yet, the Majority cannot discount the fact that there was one line of sight between the site of the incident and Nedjarici. Considering the evidence that the fire originated from the direction of Nedjarici is reliable, the only reasonable inference is that the bullet, which hit the victims, was fired from the area of Nedjarici. The Majority is thus convinced that the bullet which hit the victims originated from Nedjarici. The Majority is further convinced by the evidence which demonstrates that the area of Nedjarici was controlled by the SRK at the time of the incident.1184

  366. The Defence argues that the Prosecution failed to prove that the bus was deliberately targeted.1185 The Defence emphasises that if the bus had been shot deliberately with the intention of killing or injuring someone, it would not have been hit in the area of the wheel, but on its window.1186 The Majority is satisfied that the bus Grabovica drove the day of the incident was easily recognisable even at a long distance as a civilian object, used for a regularly scheduled civilian activity. It could have not been mistaken for a military object. Grabovica testified that the morning had been quiet and that he did not hear shooting or military activities in the area, which could have explained the gunfire. The fact that a single bullet was fired towards the bus leads to the compelling inference that the passengers of the bus were deliberately targeted. The Majority finds that the passengers of the bus were deliberated targeted.

  367. The Majority of the Trial Chamber finds that the civilian passengers of a civilian vehicle were deliberately targeted from SRK-controlled territory and that such targeting resulted in the wounding of Sehadeta Plivac and Hajra Hafizovic.

    (v) Shelling Attacks on Civilians in Dobrinja Area

  368. In addition to shooting incidents, the Trial Record discloses that shelling occurred in ABiH-controlled areas of Dobrinja. UNPROFOR reported that five shells landed near Dobrinja II one summer evening of 1993, leaving two dead and 18 wounded,1187 and determined, after inspecting recovered shell fragments, that 82 mm mortar shells had been involved in the incident.1188 UNPROFOR also determined from a crater analysis that the shells had arrived from a northwestern direction1189 and concluded that,“taking into account the characteristics found on the ground [at the site of the explosion,] one can say [with] 95% [certainty] that the shooting came from the faculty of [Nedarici], which is found 1,300 m from the spot of the incident.”1190 UNPROFOR investigators added that the “very populated street [in Dobrinja where the incident had occurred] had been affected by hundreds of shells before this incident.”1191

  369. A resident of Dobrinja remembered two specific instances of shelling where he was injured. On 24 October 1992, Eldar Hafizovic was wounded during day-time in Dobrinja III at 5 Trg Junaka Socijalistickog.1192 He was with his grandmother on a balcony located on the fifth floor of a building cooking on a grill when a tank shell exploded about 1.5 metres away from him, injuring one of the fingers on his right hand as well as his right knee.1193 Because the balcony faced the area of Gavrica Brdo, which he believed was controlled by the SRK and where he had seen tanks in the past, Hafizovic concluded that Gavrica Brdo “was the only possible direction [the tank shell] could have come from.”1194 Hafizovic was injured on a second occasion on 13 January 1993 while attending a get-together with other young people in an apartment on the ground floor of a building in Dobrinja I.1195 At the time of the incident, the witness and his friends were using a gas light as it was late in the evening and there was no electricity.1196 Hafizovic remembered hearing a loud explosion and realised that he was injured in the head and bleeding.1197 He ran out into the street crying out for help1198 and heard SRK soldiers shouting from nearby confrontation lines: “Hey, you Balijas, how many of you did we kill this time?”1199 Hafizovic recalled that fragments from a 82 mm mortar shell were recovered by neighbours after the incident, but did not know where the shell had been fired from.1200

  370. Other residents of ABiH-controlled parts of Dobrinja explained that the whole area was shelled extensively during the conflict. Omer Hadzabdic testified that “Shelling took place on a daily basis. [SRK soldiers] were shelling targets according to their own choice … They were just firing at targets independently of whether they were civilians or military targets. I, myself, was a victim of a shell [on an unspecified date].”1201 Witness AE remembered that, in addition to shooting, civilians experienced shelling in Dobrinja “Day in, day out.”1202 Ismet Had zic explained that “Every single part of Dobrinja was exposed to severe shelling […] Thousands of shells were landing at the time. It was raining shells.”1203 He added that according to ABiH intelligence, the sources of this shelling were located at “[the] Nedarici Barracks … The area below the University of Theology in Nedarici, the area near Kasindolska Street […], Krtelji, Gornji Kotarac, Gavrica Brdo, the Lukavica Barracks, and the playground right above the barracks.”1204

  371. In Schedule 2 of the Indictment, the Prosecution alleges three specific instances under numbers 1, 2 and 4 where civilians in Dobrinja were attacked from SRK-controlled territory and adduced detailed evidence to prove that these attacks against civilians were launched by SRK forces. Incidents 1 and 2 express the views of the Majority of the Trial Chamber. Judge Nieto-Navia expresses his views in relation to these two shelling incidents in the appended separate and dissenting opinion.

    (vi) Scheduled Shelling Incident 11205

  372. On 1 June 1993,1206 some residents of Dobrinja decided to organize a football tournament in the community of Dobrinja IIIB.1207 It was a beautiful, sunny day.1208 Being aware of the danger of organising such an event, the residents looked for a safe place to hold the tournament.1209 The football pitch was set up in the corner of a parking lot,1210 which was bounded by six-storey apartment blocks on three sides and on the fourth side, which faced the north, by Mojmilo hill,1211 and was not visible from any point on the SRK side of the confrontation line.1212 Around 200 spectators, among whom were women and children, gathered to watch the teams play.1213 Children aged between 10 to 15 years positioned themselves next to some old cars, damaged by previous shelling, that had been overturned and placed around the football pitch to mark the field.1214 Some residents also came out onto the balconies of the apartment buildings surrounding the pitch to watch the football tournament.1215

  373. The first match of the tournament began at around 9 am and the second one started an hour later.1216 Some minutes after 10 am, during the second match, two shells exploded at the parking lot. Ismet Fazlic, a member of the civil defence, was the referee of the second game.1217 He recounted that about 10 to 20 minutes into that game, as they carried out a penalty kick, the first shell landed among the players in the centre of the pitch.1218 He was hit by shrapnel and sustained serious injuries in both legs as well as in other parts of his body.1219 He immediately saw that there were eleven young men on the ground,1220 eight of whom had died on the spot.1221 Fazlic said that “three of my players [were] totally dismembered, their legs and arms; it was only their track suit that held them together” and that many people around the pitch were on the ground.1222 Omer Hadziabdic, who was 15 years old at the time,1223 was watching the match from the overturned cars when the first shell struck the football pitch. He heard a very strong explosion which knocked him down. He was wounded by shrapnel in his leg.1224 Nedim Gavranovic, who was 12 years old at the time, was standing behind one of the goals when he heard the first explosion and felt a very strong blow.1225 He sustained an entry and exit wound in his right lower leg caused by shrapnel.1226

  374. The witnesses recounted that a second shell landed at almost the same spot within seconds of the first shell.1227 It fell in front of a young man and tore his leg off.1228 After the second explosion, those who could began running away from the parking lot to take cover. As Hadziabdic ran from the site, he was able to see many wounded people on the ground.1229

  375. The Majority is convinced that the shelling incident of 1 June 1993 in the residential settlement of Dobrinja IIIB occurred as recounted by eye-witnesses. It finds that two mortar shells landed at around 10.20am at the parking lot in the settlement of Dobrinja IIIB, where a crowd of approximately 200 people had gathered to watch the football tournament.

  376. After the event, the wounded were taken to the Dobrinja auxiliary hospital.1230 Some were later transferred to the Kosevo hospital.1231 While the witnesses agreed that the explosion on 1 June 1993 injured many people, there is disagreement as to the exact number of people killed or injured. Dr. Youssef Hajir, who worked at the Dobrinja hospital at the time, testified that he had never seen so many injured come to the hospital. 1232 The entire facility was filled with victims of the incident.1233 Although he did not recall the exact number of casualties, Dr. Hajir estimated that there were approximately 130 to 140 injured and 13 to 14 dead.1234 He stated that 90 of the injured were treated at the Dobrinja hospital and the rest was transferred to town, due to lack of capacity.1235 The Dobrinja hospital records contain a list of 136 names of the casualties, twelve of which are recorded as killed.1236 Gavranovic, who was among the wounded at the Dobrinja hospital, recounted that he saw many people he knew there.1237 He believed that 15 persons died and that approximately 50 to 70 were wounded.1238 Hadziabdic was taken to the Dobrinja hospital to be given first aid.1239 He also recognised many of those injured and killed and said that “mainly, those were men, most of them were civilians and children”, and friends his age.1240 Fazlic was among those transferred from the Dobrinja hospital to the Kosevo hospital, where he underwent treatment and remained for almost two months.1241 He believed that a total of 16 people were killed and 82 or 83 wounded, including children.1242 Ismet Hadzic, a resident of Dobrinja and the commander of the ABiH 5th Motorised Dobrinja Brigade, was not present when the incident occurred, but he recalled that the shells that fell that day killed 15 people, including children, and wounded 121 people, 56 of them severely.1243 It is noted that Exhibit D25, an ABiH 5th Motorised Dobrinja Brigade command report dated 1 June 1993, signed by Commander Ismet Hadzic, indicated that there were 11 killed and 87 wounded (six combatants killed and fifty-five wounded and five civilians killed and thirty-two wounded).1244 Dr. Janko Vilicic, the Defence’s expert in shelling, disagreed with the Prosecution’s alleged number of casualties (12 killed and 101 wounded), and stated that, given the position of the spectators around the football pitch when the explosions occurred, a total of 43 persons would be expected to have been hit by fragments from the two shells.1245 The Majority finds that the number of victims estimated by the theoretical model used by Vilicic is contradicted by the evidence. It finds that there is sufficient specific and credible evidence1246 to conclude that it has been shown beyond reasonable doubt that the explosion of 1 June 1993 in Dobrinja killed over 10 persons and injured approximately 100 others.

  377. The Defence submits that the shells were not deliberately fired by SRK forces upon civilians. Based on the conclusions of the Vilicic Report, the Defence argues that the shells could have been fired from ABiH territory.1247 One crater analysis investigation was conducted following the occurrence of the shelling incident by Brice Houdet, an UNPROFOR representative.1248 His report stated that the two mortar shells fired that day at Dobrinja IIIB were of a calibre of at least 81mm. Based on the splinter pattern of the shells, Houdet indicated that the mortars were fired from a direction of between 138 degrees (2420 mils) and 143 degrees (2500 mils).1249 Having calculated the minimum possible angle of descent of the shells (45,71 degrees ) and the minimum range at that angle, he concluded that these could have only been fired from the SRK side, “300 metres south of Lukavica”,1250 which is located to south of Dobrinja. Witness Y was present at the site of the event when the crater analysis was carried out. He testified that the shells landed at the foot of a building in Dobrinja and that the crater analysis showed that these shells were fired from a short range. He added that “in order to corroborate this statement made by specialists, the fact that these shells landed right next to a screen or a protection screen which was indeed the building over the parking (…) would go to show that the mortar shells could only have been fired from a short range and more specifically so in the direction of Lukavica”.1251 Christian Bergeron, Chef de Cabinet to UNPROFOR Commander of Sector Sarajevo from April 1993 to April 1994, was at the Sector Sarajevo Headquarters when Houdet prepared his report. He agreed that, based on Houdet’s analysis, the fire had come from SRK-held territory.1252 He added that “on the basis of the line of fire, the direction of fire, and by analysing the arc, we got to an area in which the mortar pieces were bound to have been sitting. And in the Dobrinja sector, this possible area where they could have been was entirely on the Serb side, and more specifically so, towards the south of Lukavica ”.1253 After the occurrence of the shelling incident, the craters were filled with a red plastic-like substance to preserve them.1254 John Hamill, a former UN Military Observer on the LIMA (SRK) side, met with Ismet Fazlic and others in Dobrinja on 18 September 2001 at the Prosecution’s request to examine the two shell impact sites.1255 Based on his analysis of the patterns of the mortar impacts on the ground, Hamill concluded that the shells had been fired from a direction of 2200 mils, i.e., east -south-east. He specifically pointed towards the area of Toplik, an area east of Sarajevo in the direction of Lukavica monitored by the UNPROFOR, as the source of fire.1256 Richard Higgs, a Prosecution’s expert witness on shelling, also inspected the shell imprints in the parking lot.1257 In his report, Higgs stated that, after examining the mortar crater, he agreed with Houdet’s findings that the shells were fired by a medium-size mortar and that the direction of fire was east -south-east and within SRK-held territory.1258 Higgs plotted two solid lines and two broken lines (to represent the margin of error ) on a map to show the direction of fire and to confirm Houdet’s finding that the location of the mortars was within SRK-held territory.1259

  378. Vilicic accepted that, based on the dimensions and shape of the craters, 81 to 82 mm shells could have been responsible for the explosions.1260 He disagreed however with Houdet’s findings regarding the direction and the source of fire.1261 In his report, Vilicic indicated that “the position of the plane of firing (firing direction) was determined by an inadequately reliable method (by compass) referred to markings from the shell action on the ground”.1262 In order to determine the direction of fire, Vilicic examined a set of 6 photographs1263 of the crater impacts taken on 21 November 1995, which were part of a forensic report prepared by a ballistic expert of the BiH Ministry of Interior that was not tendered into evidence. He affirmed that “it is possible to raise doubt in marked references (photographs 4 to 6), being that the markings in photographs 1 and 2 point to quite the opposite direction of firing”, i.e., towards ABiH-held territory in the northeast.1264 The Majority finds that Vilicic’s conclusion based the interpretation of these photographs does not materially refute the methodology used by Houdet to establish the direction of fire. No evidence in the Trial Record supports the Defence’s claim that the shells were fired from ABiH territory. The Majority is satisfied that the conclusions contained in Houdet’s report are not contradicted by investigations carried out by Higgs and Hamill. It is convinced that the shells that hit the football pitch were of a calibre of at least 81-82mm and originated from the direction east-south-east.

  379. Fazlic indicated that the confrontation line was somewhere between 130-210 metres from the site of the event and Omer Hadziabdic gave almost similar numbers (100-200 metres).1265 Higgs measured the distance on the map to be 320 metres.1266 Having closely examined and verified the accuracy of the assessment made by Higgs on the base of the maps available to the Trial Chamber,1267 it finds that the distance from the site of the event to the confrontation lines in the direction of the fire was approximately 300 metres.

  380. The Majority notes that, according to Houdet’s findings based on the minimum angle of descent and the minimum range at that angle, the mortars were located 300 metres south of Lukavica.1268 Higgs, based on his examination of the shell imprints on the ground, considered that the mortars could have been fired at a greater angle (50 to 55 degrees and 70 degrees ) and from a shorter range (500 to 600 metres) than that indicated by Houdet.1269 Vilicic, using a different methodology, gave similar figures. In order to determine the distance of the firing position, Vilicic used two elements: the crater dimensions and the drop angle of the mortar shells.1270 He observed that, according to the forensic report mentioned above, the depth of the crater was 3 cm, the radius was 15 cm and the tail fins of the shells were not recovered.1271 He also indicated that the probability of hitting the intended target was much lower if increment charges are used.1272 This information led him to the conclusion that the shells were fired from a closer distance with primary charge, landing at low impact speed. The second basis for his determination of the distance of the firing position was the drop angle of the mortar shells. Vilicic estimated that the damage caused to asphalt layers indicated that the two shells responsible for the incident had drop angles of between 63 and 70 degrees.1273 He maintained that the angle of descent of the shells was between 63 and 70 degrees and that the distance of firing was between 300 metres, which would correspond to the drop angle of 63 degrees, and 400 metres, which corresponds to the drop angle of 71 degrees, from the site of impact.1274 The Majority notes that Vilicic appears to have reversed these figures, as Table 9 of his report shows that a distance of 400 metres would correspond to an angle of 60 degrees. The Majority accepts that there is significant uncertainty concerning the reliability of the conclusions reached by Houdet in this respect, since a steeper angle of descent of a mortar shell could indicate that these were fired from a closer range. However, although the Indictment does not refer to the precise range of fire or the location of the mortars responsible for the attack, the absence of this information does not harm the Prosecution’s case. The Majority observes that, given the distance of the confrontation lines to the site of the event, even if the mortars had been fired with primary charge, as suggested by Vilicic, their source would have been SRK-controlled territory. Had the shells been launched from a greater distance, as suggested by Higgs and Hamill, they would have been located well-within the SRK side of the confrontation lines. Therefore, the Indictment’s allegation that the origin of fire was SRK-held territory has been made out.

  381. The Majority takes account of the previous testimonies of witnesses that recounted that the shelling of Dobrinja was a common occurrence.1275 Witnesses also told the Trial Chamber that the area of the parking lot was shelled on previous occasions. Nedim Gavranovic testified that shells landed at the parking lot “throughout the duration of the war, not every day, but occasionally”.1276 Ismet Fazlic said that the parking lot had been hit by shells on numerous occasions.1277 He remembered that the evening prior to the occurrence of the incident, a shell had impacted only 10 metres north of a playground next to the parking lot.1278

  382. The Defence submits, alternatively, that the intended target of this attack was a legitimate military objective.1279 In support of this view, the Defence argues that the ABiH had headquarters located in the proximity of the parking lot1280 and that a system of trenches ran only a dozen of metres away from this site.1281 The evidence indicates that the ABiH 5th Motorised Dobrinja Brigade headquarters were not in the area of the parking lot, but in the Dobrinja II settlement.1282 Two witnesses indicated, however, that there was a nuclear shelter of the Dobrinja IIIB community, located approximately 100 metres away from the parking lot behind a block of flats 1283 which was used by the ABiH forces.1284 Other witnesses, all inhabitants of Dobrinja, testified that the nuclear shelters in Dobrinja were not used as military facilities or served any military purpose.1285 The Majority finds that, regardless of whether the nuclear shelter located in the Dobrinja III settlement served as military facility, it is not reasonable to believe that it was the intended target of the attack, since an attack carried out with mortars shells cannot inflict significant damage, if any, on such a facility. Considering that only two shells were fired, that these fell in quick succession and landed at almost the same spot on the parking lot, and that the second shell did not land any closer to the nuclear shelter, the Majority concludes that this was not the intended target of the attack.

  383. The Majority heard contradictory evidence regarding the use of connecting trenches that existed in Dobrinja. Witness DP9 testified that a system of connecting trenches had been dug in the vicinity of the parking lot and that these were used by ABiH forces for “manpower and supplies”.1286 Ismet Hadzic and Witness R, on the other hand, testified that these connecting trenches were only used by civilians.1287 The Majority cannot reasonably exclude the possibility that these connecting trenches, although used by civilians, were also used by ABiH soldiers. However, considering the pattern of the firing and that the second shell fired did not fall any closer to the location of the trenches indicated by Witness DP9, the Majority concludes that these trenches were not the intended target of the attack.

  384. The Defence presented evidence that suggests the establishment of a second line of defence in Dobrinja.1288 The witnesses heard by the Trial Chamber testified that this second line of defence did not exist.1289 Considering that the evidence in the Trial Record insufficiently demonstrates the exact location, or even the existence, of the second line of defence in Dobrinja, the Trial Chamber concludes that the attack was not aimed at an alleged second line of defence.

  385. No other evidence gives the Majority reason to believe that any other military facility in this area was targeted, and missed.

  386. Witnesses heard by the Trial Chamber stated that a certain number of ABiH soldiers was present at the football match. Hadzic, the commander of the ABiH 5th Motorised Dobrinja Brigade, acknowledged that off-duty soldiers were among the casualties.1290 He was of the opinion that the proportion of civilian and military killed or injured that day was roughly fifty-fifty.1291 Exhibit D25, an ABiH 5th Motorised Dobrinja Brigade command report dated 1 June 1993 signed by Hadzic, indicates that there were “six combatants killed and fifty -five wounded and five civilians killed and thirty-two wounded”.1292 Two eye-witnesses of the event, Gavranovic and Hadziabdic, recalled seeing soldiers in uniform, although unarmed, among the spectators.1293 Hadziabdic believed that the soldiers made up approximately a third to one-half of the crowd present at the parking lot.1294 Gavranovic was of the opinion that approximately 20 to 30 percent of the crowd was made up of soldiers in uniform.1295 Yet, Fazlic, another eye-witness of the shelling incident, said that the crowd gathered for the football tournament was composed mainly of children, young people and a few women.1296 He told the Trial Chamber that no one present at the game was in military uniform or wearing a military insignia or carrying weapons, although some may have been off-duty police officers or soldiers.1297 According to this witness, all the players were wearing jogging or sports outfits.1298 The eye-witnesses of the event testified further that the football tournament took place on a quiet day when there was a lull in hostilities.1299 The Majority understands the evidence to show that there were soldiers present at the parking lot, who were off-duty, unarmed and not engaged in any military activity. It finds that, although soldiers were present at the improvised football pitch, the crowd gathered there was carrying out a civilian activity, i.e., playing football.

  387. The Defence submits that the football pitch was located very close to the confrontation lines,1300 where a civilian gathering would not normally be expected to take place.1301 According to the Defence, “the Bosnian-Serb forces could not see from any place whatsoever what was happening on the other side of the buildings”,1302 and “it is possible that soldiers heard noises and exclamations near the HQ location ”1303 and presumed that the ABiH was mounting an attack there.1304 It alleges that “this hypothesis should obviously be held in discharge so that if a fire [...] had come from the areas under SRK control, the collateral damage would have been here perfectly understandable and explainable”.1305 The evidence confirms the Defence’s submission that, due to its location, the parking lot was not visible from SRK lines.1306 One witness believed the crowd could not be heard from the SRK side of Dobrinja.1307 The Majority notes that the parking lot was shelled well after the tournament began. It finds that the Defence’s suggestion that, based on the noise made by the crowd yelling and cheering the game, the SRK forces could have suspected ABiH infantry troops to be preparing for attack is too improbable to accept, since these troops would not have normally revealed their presence to the enemy by making noise. Had the SRK forces launched two shells into a residential neighbourhood at random, without taking feasible precautions to verify the target of the attack, they would have unlawfully shelled a civilian area. The Majority notes that there is no evidence on the Trial Record that suggests that the SRK was informed of the event taking place in the parking lot. However, had the SRK troops been informed of this gathering and of the presence of ABiH soldiers there, and had intended to target these soldiers, this attack would nevertheless be unlawful. Although the number of soldiers present at the game was significant, an attack on a crowd of approximately 200 people, including numerous children, would clearly be expected to cause incidental loss of life and injuries to civilians excessive in relation to the direct and concrete military advantage anticipated. In light of its finding regarding the source and direction of fire, and taking account of the evidence that the neighbourhood of Dobrinja, including the area of the parking lot, was frequently shelled from SRK positions, the Majority finds that the first scheduled shelling incident constitutes an example of indiscriminate shelling by the SRK on a civilian area.

    (vii) Scheduled Shelling Incident 21308

  388. Enver Taslaman, an inhabitant of Dobrinja, testified that due to a water cut -off in Dobrinja, a suburb of Sarajevo, inhabitants of “C5”, a settlement in Dobrinja, replenished their water supply at well-known emergency water points.1309 One of the water points in “C5”, a well, was located in the front yard of the residence of the sister of the witness Husein Grebic, an off-duty soldier at that time.1310 Grebic testified that in the middle of the afternoon of 12 July 1993, a fairly clear day until 17:00 hours,1311 on his way to visit his sister,1312 he saw around a hundred or more canisters in the street.1313 While approaching his sister’s house, Grebic saw “quite a few people, women and children with lots of canisters, plastic canisters and buckets”, maybe twenty or twenty-five,1314 standing along the street leading to his sister’s house.1315 These people, mostly elderly, were waiting for their turn to enter into the front yard of the house through an iron gate guarded by Enver Taslaman. Taslaman, retired since 1978 and a member of the territorial defence in 1993, was tasked with ensuring that no more than two persons from the queue would enter the front yard or pump more than thirty litres of water from the well located some four or five meters from the gate.1316 Rasim Mehonic, a retiree who had been queuing with his wife and two daughters since dawn, testified that he was crouched next to Taslaman, waiting for his turn to collect water1317 when, at approximately 15:00 hours, a mortar shell exploded. Witness AE, who was sitting in the rear seat of a car parked along a garage door opposite the well felt heat on her face when the shell landed1318 and when she looked up, she saw blood and body pieces flying everywhere as well as heard screaming.1319 Mehonic felt the left side of his body hit by shrapnel; it was “covered in wounds”.1320 Next to him, Taslaman was hit on the arm and the left leg.1321 Grebic who was knocking at the door of his sister’s house, heard the sound of an explosion and felt the right side of his body burn.1322 He dived into the corridor of the house, expecting to hear a second shell’s explosion. He was then given first aid assistance by his sister and sister’s friend.1323

  389. After fifteen or twenty minutes, Grebic came out of the house. He saw “a lot of dead bodies and a lot of bodies in pieces”.1324 He believed that ten persons had been killed on the spot and that more had been wounded.1325 Taslaman described the scene after the shell had landed as “a massacre”: “the shrapnel was everywhere ”, “I saw corpses down by the canisters and then shrapnel everywhere, dead bodies on both sides”.1326 Mehonic fainted when he saw his wife’s and two daughters’ dead bodies.1327 Witness AE, also wounded by shrapnel, described how the body of an old man leaning on the fence near her had been completely destroyed.1328 Zineta Arifagic, deputy director of the Dobrinja hospital where the victims of the shelling incident had been transported, testified that a list of 30 persons injured or killed on 12 July 1993 by the shell which landed on Dobrinja “C5” well had been drawn up.1329 Witness AK-2, who investigated the incident upon the request of UNPROFOR stated in his report that the mortar shell killed 11 persons and wounded 13 others.1330

  390. The Majority is convinced that the shelling incident in Dobrinja C5 dated 12 July 1993 occurred as eye witnesses recounted it and that the mortar shell, which landed on the water collection point on 12 July 1993 in Dobrinja C5 at approximately 15:00 hours upon approximately 50-60 persons,1331 killed over ten persons and wounded over ten more.

  391. Three independent on-site investigations of the shelling incident were conducted by Hamdija Cavcic, a police investigator in the Department for Criminal and Technical Investigations in Sarajevo,1332 Witness AK-21333 and a UNMO, member of Witness AK-2’s team.1334 The tail fin of the mortar shell fired that day was found on the impact site and led Cavcic, Witness AK-2, corroborated by a UNMO, to the same conclusion that the mortar shell fired on 12 July 1993 in Dobrinja “C5” was of an 82 mm calibre. The Majority has no doubt that the conclusion reached by Cavcic and Witness AK-2 is correct and that the mortar shell which landed on 12 July 1993 in Dobrinja “C5” and which caused civilian casualties was of a calibre of 82 mm.

  392. The Defence refutes that the shell was fired from SRK-held territory, in particular, the Prosecution’s argument that “there is no place on the ABiH side of the confrontation line that the fire could conceivably have originated without it being known by the local populace”,1335 and argues that if “water distribution had been the target of the SRK within the scope of a campaign, there would obviously have been many more than the few examples found by the Prosecution”.1336

  393. The Majority notes that the conclusions contained in the reports of Cavcic and Witness AK-2 (corroborated by the report of a UNMO) were taken on the basis of their de visu examination of the impact spot. The pattern on the ground of the shell impact led them to the conclusion that the direction of fire was “most probably” from west-north-west.1337 The Defence expert witness Vilicic’s opinion that the direction of fire of the shell was most probably from “East-Southwest direction” was based on inverted pictures 1338 of the impact site and therefore cannot be seriously considered and is unreliable. The Majority finds the conclusion reached by both Cavcic and Witness AK-2 credible and reliable and is convinced that the fire originated from the direction west-north-west to the point of impact of the mortar shell.1339

  394. On the basis of that direction of fire, the Prosecution witness Richard Higgs drew an unbroken red line for the direction of fire and broken lines for the margin of error on a map of the area where the shell landed on 12 July 1993.1340 The Majority accepts that a close examination of these lines shows that there is no place on the ABIH side of the confrontation line - going through Dobrinja “C5 ” at about 125 to 200 metres to the south of the well and at about 250-300 metres to the west-north-west of the well-1341 where the fire could have originated without it being known by the local population.1342 The area between the Dobrinja “C5” settlement and the front lines was an open area. The queue of people hiding and waiting their turn to pump water from the well stretched along the street leading to Grebic’s sister’s house over several hundred metres.1343 Hadzic also testified that the Dobrinja settlement was a very acoustic area.1344 Higgs testified that if a mortar shell is fired from a 300 metre distance, people would probably hear the noise and detect the firing position.1345 Witnesses testified that they heard the noise made by the explosion of the mortar shell on the impact site, not the noise of the mortar shell being launched.1346

  395. Alternatively, the Defence submits that the intended target of the mortar shell fired on 12 July 1993 in Dobrinja “C5” was probably an ABiH military objective. There were several possible military targets in the area, one identified by the Defence as being the construction work for a trench leading to the Butmir-Dobrinja tunnel.1347 That trench was to be dug 120 metres away from the site of the incident. The command of the 2nd Battalion in Dobrinja was also about 120 metres to the north-east of the site of the incident and the closest ABiH front line in the direction of fire of the said mortar shell was about 250 metres away from the impact site.1348

  396. The Majority is convinced that there was no immediate military objectives near the well, which could have explained the firing of a shell in that area. Furthermore, the Majority heard evidence that the area around well where civilians pumped water was repeatedly shelled after the shelling incident of 12 July 1993;1349 Grebic recounted how a mortar shell landed in the yard where the well is located a week after the incident of 12 July 1992 took place and wounded his sister.1350 In view of the evidence in the Trial Record, the Majority is satisfied beyond reasonable doubt that the intended objective of the mortar shell fired on 12 July 1993 in Dobrinja “C5” was not the construction work for a trench leading to the airport tunnel, nor the ABiH command and frontlines, but the well where civilians were expected to be found and used.

  397. On the basis of the above, the Majority finds that the water queue of civilians in Dobrinja “C5” was deliberately targeted on 12 July 1993 by an 82 mm mortar shell fired from SRK-held territory.

    (viii) Scheduled Shelling Incident 41351

  398. In February 1994 Sabahudin Ljusa was 11 years old and was living at no. 3 Oslobodilaca Sarajeva Street.1352 Oslobodilaca Sarajeva Street ran approximately southwest to northeast. Immediately beyond its southern tip was Sarajevo airport. A line drawn due east from the site of the alleged incident would cross into SRK-controlled territory after no more than 600 metres. At a distance of about 1.8 kilometres to the east of this part of the line was Lukavica and the SRK’s headquarters.1353 On the 4th of that month humanitarian aid was brought by truck and unloaded into a warehouse at no. 10 Oslobodilaca Sarajeva Street, on the western side of the street. The witness was in the warehouse at the time. He crossed the street to get a broom from the offices at no. 9, from where the aid was being distributed. A crowd had assembled to receive it.1354 Ljusa was just about to cross back to the warehouse, when he “felt a very loud explosion and I realised that something had hit me in the chest.”1355 He was knocked to the ground. After getting up and checking his wounds he walked to a nearby clinic. Along the way he noticed three injured people and many more at the clinic.1356 He heard a second explosion while at the clinic.1357 Ljusa was taken to Dobrinja hospital and from there to Kosevo hospital where he remained for about three weeks.1358 Medical records confirm that he sustained severe shrapnel wounds to the chest.1359

  399. On the same day, Fata Spahicand three other women left their homes in Svrakino in Novi Grad to go to Dobrinja to trade cigarettes for flour.1360 In Dobrinja the playground by the parking lot where the trading was to take place was off Oslobodilaca Sarajeva Street. Spahicand her friends arrived around 10.30 a.m.1361 A group of about 20 women and children had gathered.1362 In a short while the witness heard a whistling sound, followed by the explosion of a shell falling on a nearby block of flats fronting Oslobodilaca Sarajeva Street.1363 She heard cries of help coming from that direction as she and others ran for cover to the entrance of a building where humanitarian aid was being distributed.1364 They remained in that place for about 15 minutes, after which they returned to the playground to retrieve their belongings.1365 Fata Spahicdescribed what happened as soon as they reached the playground:1366 “We heard this sound, and as we bent down, the shell landed near us.”1367 After a moment she noticed that some of the injured were crawling away from the site, while two of her friends and two boys she did not know were killed or were dying.1368 Spahicherself was injured.1369 An ambulance came and took the injured to a local surgery.1370 From there the witness heard the explosion of a third shell.1371