Tribunal Criminal Tribunal for the Former Yugoslavia

Page 21764

 1                          Wednesday, 7 May 2003

 2                          [Prosecution Closing Statement]

 3                          [Open session]

 4                          [The accused entered court]

 5                          --- Upon commencing at 9.05 a.m.

 6            JUDGE ORIE:  Good morning to everyone.  Madam Registrar, would you

 7    please call the case.

 8            THE REGISTRAR:  Case Number IT-98-29-T, the Prosecutor versus

 9    Stanislav Galic.

10            JUDGE ORIE:  Thank you, Madam Registrar.

11            Mr. Ierace, is it Mr. Stamp who's going to continue or...?

12            MR. IERACE:  Good morning, Mr. President.  Mr. Stamp will continue

13    for approximately 20 minutes, and then I will do the remaining part of our

14    oral submissions.

15            JUDGE ORIE:  That would be approximately a little bit less than an

16    hour then.  Mr. Stamp, please proceed.

17            MR. STAMP:  Thank you very much Mr. President.  Good morning to

18    all.

19            Yesterday, we were discussing incident 3 -- 5, five children were

20    killed, and Witness AI and other children, including the Witness

21    Todorovic, were wounded in front of 4 Clara Cetkin Street.  That is the

22    two southernmost impact sites.  The other 82-millimetre round fell a

23    little bit over 100 metres to the north of that along Osrenska Street and

24    killed one child and wounded three others.  In the Prosecution's closing

25    brief, it has already been argued that it is clear that the two

Page 21765

 1    120-millimetre rounds were fired first, and that is what caused the

 2    children and Witness AI to run towards the entrances.

 3            The Court invited and we will not show it now -- but the Court has

 4    invited to show Exhibits 3281F, that is a video with Todorovic showing

 5    where he and the other children were playing, and the route they took to

 6    run to the building at Klara Cetkin Street.  And that could be reviewed in

 7    juxtaposition with Exhibit 3281G, which is a video in which the witness

 8    Kapetanovic showed the investigator where that group ran from.  And the

 9    Court can get an idea as to the distance the kids would have to run,

10    especially having regard to the fact that they were running through snow.

11    There was snow on the ground and they were indeed sledding that day.

12            Consider, coupled with that, the fact that Witness AI heard the

13    two 120-millimetre rounds falling somewhere within Alipasino Polje before

14    they started to run.  What that indicates is that it is possibly probable

15    that the mission of the 120-millimetre is not necessarily the same as that

16    of the 82-millimetres.  Indeed, the fact that Witness AI did not hear the

17    120-millimetre being round fired indicated that they were fired from some

18    distance further behind the 82-millimetre rounds, as is evidence in

19    120-millimetre mortar round can fire over a distance of 120 metres -- I

20    beg your pardon.  Over a distance of 6.500 metres.

21            What then was the purpose of the two 82-millimetre rounds?  It is

22    submitted this was simply a furtherance of a policy of random fire into

23    areas where civilians were expected to be.  The Court will have to assess

24    the fact that the two 82-millimetre rounds fell in front of the two

25    apartments buildings where people, anybody there, children, whatever

Page 21766

 1    citizens were there, would have been expected to be escaping sometime

 2    after hearing the explosion of the 120-millimetre rounds.  If one

 3    82-millimetre mortar fired, then it would mean that the mortar would have

 4    had to be relayed from one entry to another entry.  If two 82 millimetre

 5    mortar fired, then the question arises:  What level of coincidence it is

 6    that these two separate mortar barrels would fire and hit at approximately

 7    the same time in that particular set of circumstances two entrances along

 8    those two roads?  It is submitted that the reasonable inference, the only

 9    reasonable inference, is that the entry to the buildings was the target,

10    and the persons who fired knew that persons would be escaping towards

11    those entries.  And on this particular occasion, there were very, very

12    tragic consequences.

13            In respect to incident 4, that is a very clear incident.  It is an

14    incident in which General Rose said that evidence quite clearly indicated

15    that the citizens gathered for rations were deliberately targeted by the

16    Bosnian Serb army.  It bears reiterating that the three 120-millimetre

17    rounds fell in a radius of 40 metres.  The evidence in respect of the

18    firing of mortars and artillery is that the firing can be corrected, and

19    correction means moving the barrel to get it on a target.  If the three

20    rounds fell within such a small radius, it is clear evidence as General

21    Rose suggested that this area where the civilians gathered was the

22    target.

23            Interestingly, as far as that incident is concerned, the two

24    120-millimetre mortar rounds that fell on the ground, lodged and

25    penetrated the ground to quite a significant agree, one of them actually

Page 21767

 1    shattered the ground.  The other one can be seen in video D64.  And the

 2    interesting thing is that nobody has raised any issue about the fact that

 3    this round was lodged in the concrete surface.  And it would be

 4    interesting to compare the video in respect to that round and the video in

 5    respect of the Markale incident where so many complaints have been raised.

 6            If that video D64 -- and this is just a short extract from it.

 7                          [Videotape played]

 8            MR. STAMP:  Thank you.  This is the mortar fin lodged in the

 9    concrete surface.  I should point out that I think the translation of the

10    report says asphalt surface, but it is quite clear from the photographs

11    and the video that that children's playground where the people were

12    gathered to buy the flour that was delivered with the humanitarian aid

13    rations was a concrete surface.

14            We could perhaps have a look at Exhibit P2279A, which is a video

15    in respect of the round -- well, not the round, the stabiliser fin lodged

16    in the Markale market.

17                          [Videotape played]

18            MR. STAMP:  Interestingly we see being excavated by an UNPROFOR

19    member with a knife.  It could be stopped now.  Thank you.

20            Although we're not aware, it has not been in evidence as to the

21    exact quality of the concrete and the exact quality of the asphalt in

22    Markale and the exact compaction of the dirt or soil beneath, the videos

23    and the pictures of those two are relatively similar, and no complaint is

24    made in respect to incident 4.  Indeed, not only General Rose had that

25    incident -- for -- with a clear example of targeting, without expressing

Page 21768

 1    any concern about the lodgement of the stabiliser fin so deeply into the

 2    concrete surface, but the experts who examined the scene of the impact at

 3    Markale, and this includes Sabljica, Cavcic, Zecevic, Hamill, and five

 4    other experts specifically brought together for this investigation because

 5    of their expertise.  All of them, the Bosnian experts, the international

 6    experts, all of them that examined the crater at Markale determined that

 7    it had been fired by 120-millimetre mortar, fired in a conventional manner

 8    from a mortar tube, that it exploded with an impact on the surface, not an

 9    underground explosion, there's no issue as to the round penetrating and

10    then exploding.  None of them expressed any surprise or concern or any

11    issue as to how far this stabiliser fin lodged.  This was something that

12    had been experienced clearly of all of them.  The first time, apparently,

13    that we're hearing that one can use formulas to say "it couldn't have

14    happened" is probably in this trial.

15            There have been arguments raised in respect to the photographs of

16    the fragments that were recovered.  These were photographs D60 and D61,

17    which we could have a look at quickly.  It was said that they are two

18    diameters indicated in the semi-circular parts of the fragments, and it is

19    also said that some of them indicate that there are different sized

20    threading.  A review of Exhibit P3806, which is on the screen now, which

21    is a cross-section showing the interior of the fuse shows that within the

22    fuse, there are many subsystems which are connected by screw fittings of

23    differing diameters with different-sized threading.  The result of the

24    explosion is that the entire system is stretched, becomes warped, and it

25    smashes into the ground.  Nothing in Exhibits D60 or D61 is inconsistent

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Page 21770

 1    with the Prosecution's case.

 2            The Chamber is also invited to have a look at P3802 which is a

 3    photograph of the fragmentation of a mortar shell.  One will see that in

 4    the middle of the circular fragments, the pieces are a little bit more

 5    chunky, I would say, than those going to one side of the round.  And to

 6    the left of the photograph, you'll see at the top the bits look like a

 7    little bit more like shards while those at the bottom are more like the

 8    pictures in the middle.  That middle part, the chunkier piece, is

 9    consistent with the Prosecution's case.  Because according to Dr. Vilicic

10    and Dr. Besic, the front ogival part of the 120-millimetre mortar round,

11    an explosion on contact, blasts away forming a crater.  The crime-scene

12    technician Besic said that he found the fragment in the crater.  So it

13    would be expected that these chunkier pieces which are part of the front

14    ogival part of the round with what is found in the crater.

15            And every shape that you see in D61 and D62 you can find among the

16    shapes of these rounds in the middle of the standard fragments from mortar

17    rounds.  Of course, the shardier rounds from the side -- I beg your

18    pardon, the shardier fragments, the sharper, longer fragments from the

19    side of the round, those are the fragments which are emitted, and those

20    fragments that of course be lodged in the bodies of the victims would have

21    been washed away with the blood and gore.

22            So when appraised in its totality, the evidence in respect of the

23    Markale incident is manifestly clear.  Even the Defence witness, the

24    Defence expert agrees on fundamental matters which support a clear

25    inference that it was fired from Mrkovici.  But that is not all.  The

Page 21771

 1    Prosecution had brought direct evidence of persons who were close to the

 2    line in the direction of fire, that are close to the Sharpstone feature

 3    area.  Witness AK heard it being fired.  Admittedly, she heard sounds over

 4    her house shortly after she heard it being fired, and she associated those

 5    sounds with the round travelling over her house.  It is, of course,

 6    impossible for her to hear the sound of the round travelling over her

 7    house.  So whatever she heard over her house is not associated with the

 8    sound, or not associated with the mortar, the flight of the mortar as it

 9    passed over her house.  But the fact is she did hear it fire.  And if

10    Exhibit 3666 is reviewed, one could see the exact location of her house in

11    respect to that part of the confrontation line along the line of fire.

12            More interestingly is evidence of Witness AF who had been a

13    combatant, was very, very familiar with the sound of mortars firing, more

14    so than the average citizen of Sarajevo.  He had been retired because of

15    personal difficulties.  And he was in his mother's backyard which was

16    located about 200 metres from the confrontation line.  And that area is

17    shown in Exhibit P3668 which is a map on which he marked the approximate

18    location of the line and -- I'm told that it is protected.  However, I

19    don't think the information on it would cause any difficulties because all

20    the names have been -- there is no name indicated on the map.  So perhaps

21    we could proceed without going into closed session.  I don't know.

22            THE REGISTRAR:  May I have the exhibit number, please.

23            MR. STAMP:  Exhibit P3668.  And I believe it was shown in open

24    court.

25            JUDGE ORIE:  What often happened, and we were confronted with that

Page 21772

 1    yesterday as well is that when a document was shown in open court,

 2    sometimes parts of it were invisible because they have been yellow

 3    stickers on it.  So before we look at it, I would first like to check that

 4    there's nothing on it.  Sometimes the names are...

 5            MR. STAMP:  Mr. President, I have ensured that the names are not

 6    on this part of it which we are going to show now.

 7            JUDGE ORIE:  Yes.  Then the other thing I'd like to check is

 8    whether it's really the name that's the reason.

 9            MR. STAMP:  Very well, Mr. President.  I think I could proceed

10    without it.  I would invite the Court to have a look at where he placed

11    the house in respect to the confrontation, and also to have a look at

12    Exhibit 3131 which is a set of photographs of the area of his house in

13    relation to where the confrontation line was.  One would see that there

14    was no obstacle or impediment for his hearing the sound of a mortar being

15    fired from beyond the line.  The Witness Higgs did say that the UNMOs use

16    their ears to determine where the mortar fire was coming from.  I beg your

17    pardon, it was Hamill who said.  Higgs added quite reasonably that sound

18    can be deflected.  That is why incident 1, as we explained in the brief,

19    we do not rely on Witness...

20            JUDGE ORIE:  Please proceed.

21            MR. STAMP:  I was indicating in incident 3, we would not rely on

22    Witness AI's testimony solely because there were buildings between where

23    he was and the firing point.  We rely on the evidence which excludes the

24    possibility that it could have been fired anywhere between where it landed

25    and the confrontation line.  And also the evidence of the ballistic

Page 21773

 1    examiners who established the direction of fire.  However, in respect of

 2    the Markale incident, the circumstances are quite different.  Witness AF

 3    was located at such a position that there's nothing which one could

 4    objectively say would have interfered with an accurate assessment of where

 5    the mortar was fired from.

 6            If I could quickly move on to a different area, with your leave,

 7    Mr. President, the Defence in its brief made a number of references, it

 8    has submitted misleading references, to the casualty figures that were

 9    evidenced in the expert statement of Ewa Tabeau, and as it was amplified

10    in her testimony.  The basic data regarding civilian casualties are

11    summarised in paper 1 of page 4, and the figures show that in every part

12    of Sarajevo there was a confrontation line.  And throughout the whole of

13    the indictment period, notwithstanding certain laws, usually as a result

14    of international pressure, civilians were being killed and wounded on a

15    daily basis.  One can glean that from the annexes to the expert

16    statement.  While the majority of those killed were men, many children,

17    women, and elderly were reported among casualties as well.  Among those

18    killed, there were 295 children, 670 women, 85 elderly.  Incidentally,

19    yesterday we heard that within the Bosnian government lines, 1.185

20    civilians were killed, and 4.701 were wounded.  Actually, those figures

21    are the numbers only for those who were killed by shelling and sniping

22    respectively.

23            It is said that the ratio of men to women killed was 83 per cent

24    to 17 per cent, and it is argued that this ratio is inconsistent with the

25    Prosecution's case.  This is a ratio for the overall total of killed

Page 21774

 1    persons, most of whom are soldiers, and very few of these soldiers were

 2    women.  Among the civilians were killed, if one looks at that specific

 3    subgroup, the civilians killed, the ratio is 55 per cent men, and 45 per

 4    cent women.  These figures indicate generally speaking that there was

 5    random targeting of the civilians.

 6            The Defence also at paragraph 703 and 704 of the closing brief

 7    calculated that there were only 100 civilian deaths in 1994, and argue

 8    that this figure rebuts an inference of a campaign of targeting

 9    civilians.  The contrary is true.  Table A 3.13 of the annexes to Tabeau's

10    expert statements records that in 1994, a total of 179 civilians were

11    killed with 146 of them occurring in the first two months.  The evidence

12    discloses a reason for the dramatic fall in the rate of killings after

13    February 1994, which is the month of the Markale incident when

14    international pressure was brought to bear.  And in the same vein, the

15    evidence also reveals the reason for the decrease in the rate of civilian

16    casualties over the indictment period.  In fact the evidence is, and I

17    think that was part of the homework of Ewa Tabeau, that the rates started

18    to decline after a few months of the war, even before the tenure of the

19    accused began.  And the reason from the evidence clearly is that as the

20    conflict dragged on, the survivor skills of the residents became more and

21    more acutely refined as a result of the rigorous lessons taught by past

22    traumatic experiences of the campaign.  They organised more effectively

23    and employed a variety of measures progressively improved over time to

24    protect themselves, like barriers at night, building trenches and

25    barricades for safe passage, and putting schools and performing religious

Page 21775












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Page 21776

 1    rites in basements.  Some of them even lived in their basements for

 2    months, coming out just to fetch the basic necessities of life.

 3            Mustafa Kovac, the chief of the civil defence, testified that

 4    these protective measures, the barricades erected in places deemed to be

 5    dangerous based on the number of casualties and the frequency of shooting

 6    in the past led to a significant decrease in the casualties.  In any case,

 7    it is reiterated here that the Prosecution's case is not that the aim was

 8    to kill and injure as many Sarajevans as possible, it was primarily to

 9    terrorise the population in furtherance of political objectives.  May it

10    please you, Mr. President, I would like to stop here. Thank you very much,

11    Your Honour.

12            JUDGE ORIE:  Thank you, Mr. Stamp.

13            I would take this opportunity to explain why I was a bit cautious

14    about showing any maps, because apart from names, sometimes witnesses

15    marked elements that would -- could be a clue to the place where they

16    lived, et cetera.

17            MR. STAMP:  I understand, Mr. President.  I realise that.

18            JUDGE ORIE:  Yes.  Mr. Ierace, you may proceed.

19            MR. IERACE:  Thank you, Mr. President.  I might start by picking

20    up on the last point made by Mr. Stamp.  In the evidence is a map marked

21    by Mlada Halili indicating the route that she and her husband and mother

22    took on the day that her mother was killed.  She explained that it was a

23    route used by Sarajevans to avoid as much as possible places in the city

24    which were exposed to sniper fire.  A well-used route.  The map is of poor

25    quality, but the marking is quite distinct.  And that's quite helpful in

Page 21777

 1    understanding one of the measures taken by civilians to protect

 2    themselves.

 3            Yesterday, at the time I sat down, I had been making some

 4    submissions in relation to the matchbox fire.  The fire chief,

 5    Mr. Jusufovic placed that as having occurred at Dolac Malta.  Both men,

 6    van Lynden and Jusufovic said that men, women, and children, all

 7    civilians, made their way as best they could out of the building.

 8    Jusufovic pointed out the lower levels were also set ablaze by the

 9    incendiary rounds, and when they attempted to use the fire brigade

10    extension ladder, the firefighters were shot at.

11            The Defence in relation to this incident at paragraph 807 said:

12    "Baron van Lynden declared not being able to dismiss that this building

13    would have been used prior to the attacks for sniper fires.  This only

14    mentioned by a war journalist means that in all likelihood, it was more

15    than a probability."  In other words, the Defence seeks to justify the

16    attack on the basis that it was used by snipers.

17            Firstly, that misstates the evidence of Baron van Lynden.  When

18    cross-examined about that use, he said it was a theoretical possibility.

19    He was convinced that it had not been used for military purposes.  But

20    even assuming it had been, it would grossly offend the principle of

21    proportionality to jeopardise so many civilian lives, lives of men, women,

22    and children, in order to burn out the highest residential building in

23    Sarajevo, because it had been used by snipers.  That assumes, but there is

24    no evidence of, namely, that it was used by snipers.

25            Mr. President, if we could move into private session for just a

Page 21778

 1    moment.

 2            JUDGE ORIE:  We'll move into private session.

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18                          [Open session]

19            MR. IERACE:  So that is consistent with the evidence of Witness D

20    as the source of fire being precisely on the line of houses occupied by

21    snipers who were equipped with night sights just to the north of Osrenska

22    Street.

23            If we please now go to the next slide.  We have that it on the

24    screen, I think.  Mr. President, here we see Dr. Radinovic's map for

25    Grbavica.  One will notice the large number of white circles marked by the

Page 21783

 1    Prosecution as being pre-indictment.  We see two entries for number 44.

 2    The foundational documents for those entries indicate that the target, in

 3    fact, should be in Vogosca, Hum, and Ogoska.  There is no explanation as

 4    to why they appear in Marin Dvor and Novo Sarajevo.  One also notices two

 5    number 49s which are references to boundaries of areas of responsibility

 6    with no explanation as to why they appear where they do.  We see two

 7    entries numbered 19.  In fact there are four entries for number 19 on the

 8    map as a whole, and of course I'm referring to various entries here which

 9    have not been marked white.

10            Next slide, please.  This is a portion of Kucanin's map of

11    Grbavica.  Next slide.  The yellow arrow indicates a position which

12    Mr. Kucanin indicated as a constant source of sniper fire against

13    civilians during the indictment period.  He described it as being a line

14    of four skyscrapers 15 storeys each.  One can see that it is along the

15    banks of the Miljacka  River which was indeed the confrontation line at

16    that stage.  A comparison with the maps marked by John Ashton indicates

17    they are the very same skyscrapers in which he was shown around in which

18    he saw thousands of spent shells.  A comparison with the maps of Witness D

19    indicates again, they are the same four skyscrapers that were gathered by

20    Witness D's platoon from which he observed snipers entering and leaving.

21            Baron van Lynden gave evidence that he went into skyscrapers in

22    the same area.  And indeed, alongside this block of four to the left -- to

23    the west is another block of four.  And in those skyscrapers, the ones

24    that were entered by Baron van Lynden, he not only saw dummies being

25    erected, he not only saw walkie-talkies being used by spotters for the

Page 21784

 1    snipers, but also saw the professional snipers with optical sights.

 2            From that block of four alongside this block, the Prosecution says

 3    Milada Halili's mother was shot.  It is important to remember the use of

 4    spotters, the use of telescopes, the use of walkie-talkies in considering

 5    whether civilians shot as they emerged from behind containers or shot from

 6    under trucks containing containers were hit from those known sources

 7    deliberately.

 8            Van Lynden visited these blocks with a military police escort

 9    provided personally by General Mladic in late September, 1992.  Therefore,

10    there can be no doubt that these professional snipers operating in the

11    first three weeks of the accused's tenure were doing so as part of the

12    SRK.  One and a half years later, Colonel Fraser in the closing months of

13    the accused's tenure described how the snipers operating from Grbavica

14    would in a morning ritual hit telegraph poles to indicate to the hundreds

15    of French troops trying to locate them that they were in position and

16    ready for action.  And there, they would wait each day for the civilians,

17    including children, according to Colonel Fraser, to appear.  Colonel

18    Fraser made clear he was referring to sniper alley, Marsal Tito Boulevard,

19    and only civilians used it.

20            A moment's reflection on that, if one considers day in and day out

21    for a year and a half, these snipers operated from Grbavica, it could only

22    have happened when one considers the link to General Mladic in September

23    1992 that the accused wanted it, intended it to happen.

24            Next slide -- go back one, please.  Another aspect of this map by

25    Kucanin is the numbers 6, 7, and 8 which appear in a marked area above the

Page 21785

 1    yellow area.  He said there were three snipings of trams that he

 2    investigated in the indictment period.  I will come back to that.

 3            Next slide.  This is a photograph taken by John Ashton from Marin

 4    Dvor looking south, and we see squarely in the middle of the photograph

 5    the Jewish cemetery which the Prosecution has called evidence to the

 6    effect was the source - SRK positions on the Jewish cemetery - of

 7    considerable fire against civilians in Marin Dvor in central Sarajevo.  In

 8    this photograph, we see the chapel at the bottom of the cemetery.

 9    Cemetery behind it.  And if one visually places over that image the

10    evidence as to the position, the undisputed evidence as to the position of

11    the SRK lines, it was agreed by both sides that certainly, they were at

12    the top of the cemetery and certainly they were to the right of the

13    cemetery as we view it.  This makes the point, this photograph, that even

14    if the SRK were not operating from the chapel, it didn't matter, because

15    from above the chapel, from the southern boundary of the cemetery where

16    they were located, they had a clear line of fire into the city.

17            Next image, please.  Here I now switch given the shortness of time

18    to incidents 11 and 2 which occurred at the Skenderija.  The Prosecution

19    says that the source of fire was a feature known as Baba rock.  This is

20    the sniping map for incident 11 marked by General Karavelic in dark blue

21    to indicate the forward confrontation line of SRK positions.  He placed

22    that line through Baba rock, and he also in so doing followed the road,

23    the road from Lukavica to Pale.  The Defence witnesses said "no, that's

24    not right.  The front-line position was to the south of the road.  They

25    didn't hold the road, therefore, they didn't hold Baba rock, and therefore

Page 21786

 1    they could not have been responsible."  They said "Baba rock was in

 2    neutral territory, was in no-man's-land."  Even if it was, it makes no

 3    different.  The fact that snipers operate from no-man's-land as opposed to

 4    confrontation lines is not a problem.

 5            Second point I wish to make is that the evidence is in support of

 6    the Prosecution proposition.  If we go to the next map, we see here a map

 7    marked by John Ashton of the same area.  If one looks at the squiggly road

 8    towards the centre of the map, and then we go back to the last image one

 9    can see, if one looks carefully in the centre of this map, the same

10    squiggly road.   In order to get an understanding that these two maps

11    cover the same area.  Back to the Ashton map, please.

12            Ashton marked this road because he said it was the route he took

13    when he travelled from Lukavica to Pale, and he was doing that at the time

14    of incidents 2 and 11.  How was he able to travel on a road on SRK

15    territory, initially venture into no-man's-land, continue driving south to

16    Pale, and then back again.  That doesn't make sense.  The only way he

17    could have done that was if the road was in SRK territory.  Mrs. Basara

18    Karavic [phoen] gave evidence that the road actually passed between the

19    two rock features, so you had rocks on one side of the road and then rocks

20    on the other.

21            The issue arose partly because General Karavelic didn't mark map

22    number 2 the same way that he marked map number 11.  He was shown map

23    number 2 first and then marked map number 11, giving rise to that

24    inconsistency. It was clearly an oversight.

25            Next map.  Another issue in relation to incident number 2 was

Page 21787












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Page 21788

 1    whether there were any legitimate targets.  This is a map marked by

 2    defence witness.  If one looks at the circle placed near the name

 3    Sirokaca, one sees a multiple road junction and immediately to the right

 4    of it a circle.  A witness said that was a school building that was used

 5    by artillery units.  The position of incident number 2 is to the left.

 6    One sees a road going up the screen from behind the letters RO.  And then

 7    as we follow it up, it forks.  The position of number 2 was to -- a little

 8    higher and to the left of that fork.  In other words, some 200 metres from

 9    the position of the school.

10            Next map, please.  This is Dr. Radinovic's map of the area.  We

11    see there is only one military target he has identified anywhere near

12    incident 2 or incident 11, 148.  He based it on a pre-indictment

13    reference.  Well it didn't exist at the time of incident 2.  But even if

14    it did, keeping in mind that the circles that he used had a diameter of

15    some 200 metres, when one looks at the scale on these maps, it is quite

16    misleading.  In other words, in relation to both incidents, there were no

17    nearby military targets that could be relevant to the incidents

18    themselves.

19            Next slide, please.  Now, Mrs. Basara Karavic described the source

20    of fire as being Baba rock or Ozmici [phoen].  And there was a little

21    un -- lack of clarity in relation to what she quite meant.  Was she saying

22    that Baba rock was also known as Ozmici or were they different place.  To

23    a degree, it didn't matter, because she said both places were in SRK

24    territory, enemy territory, and both were sources of fire.  If one goes

25    through the evidence looking for other references to Ozmici, one again

Page 21789

 1    comes back to investigator Kucanin who marked on his map in position

 2    number 2 Ozmici, which he described as being one of the highest sources of

 3    fire into the city against civilians during the indictment period.  Again,

 4    we see the squiggly road just beneath the 2 which helps us to position

 5    where Ozmici was, and it happens to be where Baba rock was as he has

 6    marked it.

 7            Next map, please.  This is Dr. Radinovic's map for Sedrenik, where

 8    we had two incidents, 3 and 8.  Sharpstone to the top left.  First

 9    observation, and perhaps the only one I need to make in the time I have is

10    that none of these targets are anywhere near the relevant incident

11    positions.  The same could be said for his map in relation to incidents 16

12    and 17.  There were no military targets marked anywhere near them.  I'll

13    leave these slides at this stage with just one more, if we could have

14    that.  The Defence in its written submissions complained that for all the

15    evidence of funerals being shelled, we saw no photographs of such a

16    thing.  And said that if there had been a photograph taken at the time

17    that a funeral was shelled, that would be helpful.  Here is such

18    photograph taken by journalist Vaal.  You will recall his evidence, that

19    he took this photograph of a woman gathering wood, and in the background

20    one sees Kosevo Hospital.  In the middle ground, he explained, there's a

21    funeral procession entering the line of symmetry.  He explained that

22    seconds after he took this photograph, it was shelled, and the funeral

23    procession scattered.  He wanted to run, the woman wouldn't.  He spoke to

24    her and asked her to accompany him to safety, but she wouldn't.  She had a

25    totally fatalistic attitude by that stage about survival.

Page 21790

 1            If the Defence wishes to see further images in relation to

 2    funerals, we also have the series of photographs taken by the UN military

 3    observer who investigated the shelling of a funeral at Lion cemetery where

 4    some of the funeral attendees sought refuge in the then-abandoned premises

 5    of PAPA 3 when a 24-year-old woman was hit by a mortar as she tried to

 6    enter the front door.

 7            Mr. President, that completes the images for the moment, returning

 8    now to some other matters -- going to some other matters I should say.  In

 9    their written submissions, the Defence stated that the scheduled sniping

10    incidents were not protested to the accused, thereby inferring that the

11    accused was deprived of an opportunity to investigate each incident.  But

12    if the Trial Chamber is satisfied that the accused was, at his level of

13    senior command, in fact ordering the campaign, failure to inform him of

14    these individual incidents is inconsequential.  Consistent with the

15    Prosecution thesis, the accused we have heard evidence failed to

16    investigate any of the multitude of protests in relation to the sniping of

17    civilians that were made to him personally and also through his liaison

18    staff which existed in that part for that very purpose, for receiving

19    protests.

20            Bergeron, who was the UN commander from April 1993 to April 1994

21    gave evidence that he regularly met with the accused, and he personally

22    protested to the accused through that 12-month period the sniping of men,

23    women, and children civilians by the SRK forces.  So there, out of the 23

24    months, is 12.  Colonel Fraser who commenced his period in April 1994 when

25    General Bergeron finished said that protests were made from then right

Page 21791

 1    through to the end of the accused's tenure.  And at that stage,

 2    increasingly in relation to specific incidents.  But Colonel Indic

 3    admitted to this Trial Chamber from the witness box that not one solitary

 4    incident of the shooting of a civilian was ever investigated by the

 5    Sarajevo-Romanija Corps.  Shooting of the UN was a different matter.  The

 6    accused would investigate those.  So we see that he would investigate when

 7    he was motivated to do so.  The explanation offered by Colonel Indic as to

 8    why the shooting of civilians was never investigated, that they didn't

 9    have sufficient information, is totally lacking in credibility.

10            Indeed, we saw that there were admissions at a lower level by the

11    SRK, that they were engaged in the business of sniping.  We have in

12    evidence a UN SITREP dated the 13th of July, 1994, issued through the

13    headquarters of General Van Baal noting that the battalion commander

14    responsible for the territory of the home for the blind in Nedzarici

15    admitted the SRK was sniping from it and promised "that there would be no

16    more sniping from that place."  The date of that admission was four weeks

17    before the accused was replaced, nine months after the shooting of Faruk

18    Hrncic [phoen] in his father's truck, four months after Franjic Greguric

19    [phoen] was shot, and three weeks after the shooting of Senalja

20    Meritenovic [phoen], the 16 year old sholt as she crossed the road, all

21    from the house for the blind.

22            I mentioned trams earlier.  Conspicuous by its complete absence

23    from the Defence case, and its written submissions, was any justification

24    for the targeting of trams.  Indeed, the accused could hardly justify that

25    behaviour.  Implicit in this blanket omission from the Defence case is by

Page 21792

 1    inference a concession to the Prosecution submission that it was without

 2    any justification at all.  And yet, the evidence establishes not only that

 3    such acts were perpetrated by SRK soldiers, but that it was ordered at the

 4    level of the SRK and VRS leadership.  I refer, of course, to the evidence

 5    of General Van Baal who was informed by the chief of staff of the VRS,

 6    General Milovanovic, that if the UN succeeded in getting the trams running

 7    in Sarajevo, they would be targeted.  General Rose said it was of great

 8    symbolical importance to get the trams running again in the aftermath of

 9    Markale and that this was achieved by April 1994.  And General Milovanovic

10    was as good as his word; the trams were targeted. Incident 24, for

11    instance, occurred two months after the trams were restarted.  In June

12    1994, a tram passing through Marin Dvor was shot, persons injured.

13            General Rose also said that he had "a memory of a suspicion at the

14    time that a Bosnian government sniper team may have fired on one of the

15    trams."  This serves to illustrate the issue of whether the Bosnians could

16    have been responsible for the crimes committed against the civilians and

17    not the accused.  In my opening of the Prosecution case, I said that the

18    commission of crimes were not confined to one side in this conflict.  And

19    indeed, we have heard evidence, such as that from General Rose, that there

20    were indications that Bosnians may have been responsible for some isolated

21    incidents against their own civilians.

22            So what is the relevance of this evidence in this trial in

23    relation to this accused?  Taking the evidence at its highest, assuming

24    hypothetically it occurred, the bare fact that the accused was not the

25    only one committing such crimes is of no assistance to him in his defence

Page 21793












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Page 21794

 1    at all.  It could only be relevant if it created a reasonable doubt that

 2    it was not the accused's subordinates who were responsible for

 3    perpetrating these offences.

 4            However, the evidence that the Prosecution relies upon that the

 5    accused's subordinates did commit the crimes charged and that he ordered

 6    it is not contingent upon disproving Bosnian perpetrations as well.  I

 7    refer in particular to the evidence of eyewitness accounts of the sources

 8    of fire, where eyewitnesses have seen the shells, the muzzles of the guns

 9    firing on SRK territory, the observations of UN military observers in the

10    Lima positions alongside the mortar units, the artillery places, watching

11    the shells laying indiscriminately in the city, watching the mortars being

12    kicked and then fired, Witness D watching drunking crews operating

13    mortars, and the evidence of admissions made at all times level of the

14    Sarajevo-Romanija Corps and the VRS, and threats and threats carried out.

15    None of that depends at all on disproving perpetrators on the Bosnian

16    side.  It's quite independent.

17            It's also pertinent in this regard to observe that time and again,

18    the witnesses called by the Prosecution who gave evidence that there were

19    indications that the Bosnians may have been responsible for some isolated

20    incidents against their own civilians were the very same witnesses who

21    gave the most damning evidence against the accused.  Patrick Henneberry is

22    one example who comes to mind.  There are others.  There was no

23    inconsistency in their minds and in their evidence with the guilt of the

24    accused.  He also demonstrated, incidentally, the impartiality of those

25    witnesses.  So it's not a question of either the accused or the Bosnians

Page 21795

 1    being responsible, but rather whether the Bosnians as well as the accused

 2    bore some responsibility for civilian casualties.

 3            And again, importantly, there was no evidence that fire from one

 4    part of Bosnian territory to another part of Bosnian territory resulted in

 5    significant casualties.  If it happened, the scale was small, and that

 6    observation was made by a number of senior UN witnesses.

 7            I emphasise that my argument on this point assumes that some on

 8    the Bosnian side did perpetrate such crimes.  It was not that conclusive.

 9    Richard Gray was a tragic figure.  His evidence lacked credibility for a

10    number of reasons, some of which at least went beyond his control.  The

11    Defence played an interview with a person who related the shooting of a

12    soldier by Bosnians, but they did not call him to give evidence, to be

13    tested under cross-examination, or even to explain where his information

14    came from.

15            To return now to the subject of the sniping of the trams.  Rose

16    said there was a suspicion that one tram was shot by Bosnian snipers, a

17    suspicion.  That does not detract from the evidence that the trams were

18    shot on multiple occasions by the SRK and that Milovanovic effectively

19    admitted it by threatening it and carrying it out.

20            To give another example in relation to Kosevo Hospital, our

21    written submissions detail the analysis of shell impacts on the hospital

22    in December 1992 and January 1993.  We heard evidence from Cutler and from

23    Harding of the detailed analysis carried out, the type of shells that were

24    used that were not possessed by the ABiH, but we also heard evidence from

25    Hamill who said that 12 months later, on the 5th of December, 1993, he was

Page 21796

 1    passing through Kosevo Hospital and he looked at an impact site we he

 2    deduced to be a tank shell and he formed the opinion that it was not fired

 3    from the area under the control of the SRK but, rather, fired from within

 4    the city.  He formed this impression, he said, from what he saw on the

 5    spot, not a complete analysis.  But assuming it was true, assuming that

 6    there had been a complete analysis, which there wasn't, and that it was

 7    fired from within the city, that does not detract at all from the evidence

 8    of Cutler and Harding in relation to what happened 12 months before, 11

 9    months before, in December 1992 and January 1993.  It's not either/or;

10    it's as well as.

11            This has some relevance also to the issue of terror.  The terror

12    count is the charge which best captures the criminality of the accused

13    partly because it puts in context all of the other charges and identifies

14    the true victims, namely, the civilian population as a whole.  If some on

15    the Bosnian side shot or shelled their own, or paramilitaries fought each

16    other on the Bosnian side, in the same fashion as with the other charges

17    the accused is not relieved of responsibility for his actions.  The

18    Defence argument, in other words, is built on a false premise, again,

19    assuming for the sake of the argument that civilians were in fact

20    terrorised by Bosnian actions and the war experience generally.  As

21    Dr. Turner noted terror can be a response to more than one stimulus

22    factor.  Put simply, if the evidence establishes that the objective of the

23    campaign undertaken by the accused was indeed to terrorise the civilian

24    population and if the evidence also establishes that the civilian

25    population were terrorised by the sniping and shelling from the SRK side,

Page 21797

 1    it doesn't matter that they also experienced terror as a result of living

 2    so close to an armed conflict in terms of its legitimate aspects.  It

 3    doesn't matter that they also felt terror as a result of fighting --

 4    infighting between paramilitaries, and it doesn't matter that some of the

 5    sniping and some of the shelling didn't come from the SRK side, if that

 6    was established, which it is not.  Terror does not have to have one

 7    source.

 8            Yesterday, I made submissions in relation to the issue of

 9    proportionality.  And to bring it down to the facts which are applied in

10    this case, one might contemplate the position of a typical sniper on the

11    SRK side, operating from the House of the Blind, from Sharpstone, from a

12    high-rise in Grbavica, from Baba rock.  What is it that we say applies to

13    that situation?  What is the law which operates?  Having regard to the

14    wording of Article 50, it comes down to this, that the shooter who has a

15    potential target in his sight should not shoot unless and until he can

16    eliminate any doubt as to the status of that person.  If he or she, the

17    sniper, remains unsure, then it is unlawful to shoot.  This was not a hot

18    conflict.  Here we did not have the heat of battle.  Here we did not have

19    immediate danger of being attacked, of being killed, if the sniper made a

20    wrong call.  No, here we had snipers operating from positions where they

21    were not under attack, where they could take their time and determine

22    whether or not a person should be targeted.

23            There were combats during the indictment period.  We've heard

24    about the battle of Otes, Zuc, some attacks on Hum.  But none of the

25    scheduled incidents relate to those battles, those conflicts, and none of

Page 21798

 1    the unscheduled, the multitude of unscheduled incidents that the

 2    Prosecution has led evidence of, relate to those conflicts; only in the

 3    sense that during the battle of Zuc, for example, the accused through his

 4    subordinates would indiscriminately shell the city to bring pressure to

 5    bear on the Bosnian authorities to better his position.

 6            Mr. President, I have moved faster than I have anticipated and I

 7    have some minutes left.  If there are any questions that Mr. President or

 8    Your Honours might have, then perhaps we could use the time in that way.

 9            JUDGE ORIE:  If there would be any questions, the Chamber would

10    prefer to put them to the parties after we have heard the closing

11    argument, both of the Prosecution and the Defence.

12            Mr. Ierace, I then understand that this concludes your closing

13    arguments.

14            MR. IERACE:  Yes, it does, Mr. President.

15            JUDGE ORIE:  Yes.

16            Ms. Pilipovic, is the Defence ready to start, or would you prefer

17    to have an earlier break and to start after the break?

18            MS. PILIPOVIC: [Interpretation] Yes, Your Honour.  As far as I'm

19    concerned, we can start right now.

20            JUDGE ORIE:  Yes.  General Galic, you'd like to move on.

21            Yes.  Then, Ms. Pilipovic, please proceed with your closing

22    argument.

23                          [Defence Closing Statement]

24            MS. PILIPOVIC: [Interpretation] Thank you, Your Honour.

25            Your Honours, good morning.  Good morning to everyone.  The

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Page 21800

 1    Defence counsel has listened to the Prosecution's final trial brief in

 2    which they have repeated their position that the evidence presented

 3    against General Galic as presented in their brief has been proved, has

 4    been supported.  The counsel has presented its position on these

 5    viewpoints in its trial brief, in its final trial brief, and we shall

 6    attempt not to repeat in our verbal final trial brief what was said in our

 7    trial brief, but we will also point to other facts that support the

 8    position of the Defence according to which none of the counts in the

 9    indictment against General Galic have been proved.

10            The Defence would like to point out that it bases its -- that the

11    the Prosecution bases its positions on very broad assumptions and it is

12    based on assumptions -- on conclusions reached by witnesses and not on

13    facts, and this is not something that is allowed for by criminal law.  The

14    Prosecution has had such an approach throughout the proceedings, and this

15    approach is manifested in its trial brief, in its final trial brief, where

16    it has analysed, first of all, the application of the law on the basis of

17    which the responsibility -- the criminal responsibility of General Galic

18    should be established.  And then it wants to fit some of the facts into

19    this mould, some of the facts that the Prosecution has examined

20    uncritically.  And on the basis of such fragments, such fragmentary

21    testimony, taken out of the testimony given by the witnesses, the

22    Prosecution has neglected physical evidence that should have and could

23    have been established by an analysis and by accessible written documents

24    that the Prosecution possessed.

25            The facts have to be proved and be supported by clear evidence,

Page 21801

 1    and they are not be supported by someone's conclusions and by assumptions.

 2    The only person -- the only body competent to reach decisions is the Trial

 3    Chamber, and they can base their conclusions on assumptions and

 4    conclusions of witnesses.  The witnesses are here only to present facts

 5    about which they have immediate and direct knowledge, and the Trial

 6    Chamber shall reach its findings on the basis of those facts, with regard

 7    to the events and with regard to the application of law.

 8            In order for the Defence to be able to respond to the

 9    Prosecution's positions, the Defence shall follow the same sort of system

10    in its final trial brief that the Prosecution had its in final trial brief

11    because the Defence does not want to repeat itself and it wants to quite

12    clearly indicate that the Prosecution's positions are absolutely erroneous

13    and will be of no assistance to the Trial Chamber.

14            With all due respect to the Trial Chamber, the Defence expects

15    that the Trial Chamber, when examining the events in the Sarajevo

16    battlefield, will first of all take into consideration the background of

17    the conflict and this will include who first prepared for the conflict,

18    how the conflict first broke out, how the first fighting broke out, and

19    then it will pay special attention to establishing the fact for the

20    scheduled incidents of sniping and shelling in Schedule 1 and 2 to the

21    indictment.  And after that, it will examine the application of the law,

22    if on the basis of facts it is established -- whether it's possible to

23    talk about the criminal responsibility, the legal responsibility, of

24    General Galic, that is to say, whether such criminal responsibility

25    exists.

Page 21802

 1            When presenting its positions on the application of law, in item 7

 2    of the final trial brief presented by the Prosecution, the Prosecution

 3    supports the thesis that it is possible to convict General Galic for

 4    counts 1, 4, and 7 which it charged pursuant to Article 3 of the Statute,

 5    which is a general article -- which a general article covers, the serious

 6    violation of humanitarian law, if as the Prosecution has said in item 4,

 7    if four conditions have been met, have been satisfied.  In its final trial

 8    brief, the Defence presented its positions in detail, the positions for

 9    which it does not accept the Prosecution's position and which is based on

10    the practice of this Tribunal.  It doesn't accept that Article 3 of the

11    Statute is a general rule which covers all violations of humanitarian law

12    which are not dealt with as crimes or contained in international customary

13    law.

14            The linguistic and the logical interpretation of that article,

15    namely that Article 3 excludes that possibly because it is quite obvious

16    that the course of the statute had in mind a special field of protection

17    in the course of an armed conflict; namely, he had in mind physical --

18    material goods, physical property.  The Defence wants to show that the

19    indictment as against General Galic also charges General Galic with acts

20    and omissions which are contained in Article 5 of the Statute.  In such a

21    case, it is not necessary with regard to these acts contained in

22    Article 5 -- it is not necessary to refer to Article 3, even if we

23    accepted that it would be correct to interpret these provisions of the

24    Statute, given the attitude of the Tribunal towards this to date.  The

25    Defence's position is that Article 5 of the Statute covers all other

Page 21803

 1    violations of international law.

 2            The Defence would like to indicate that it is necessary to clearly

 3    distinguish Article 5 from Article 3 of the Statute because it is quite

 4    obvious that Article 3 of the Statute is intended to cover violations of

 5    the laws and customs of war.  But it does not refer to physical persons,

 6    whereas Article 5 contains provisions that concern the protection of

 7    physical persons, that is to say, the protection of the civilian

 8    population.  If in Article 5 there are -- if Article 5 contains crimes,

 9    mentions crimes under which the acts of the accused could be placed, then

10    there is no justification for the Prosecution to refer to customary law

11    and to have other offences that would be considered as crimes under

12    Article 3 as well.

13            In item 8, or in paragraph 8 of its final trial brief, the

14    Prosecution provided its explanation of the unlawful infliction of terror

15    on the civilian population and it considers that this comes under

16    customary international law in accordance with the provisions of Article 3

17    of the Statute and which are -- with which one can be charged because of

18    violating the laws and customers of war.  The Defence has to point out

19    that it is not -- it does not understand what the Prosecution wanted to

20    claim in this part of its exposition, its presentation.  Did it want to

21    prove that these are elements of the crime of terror, or did it want to

22    claim that these are elements that must be present if one is to establish

23    someone's criminal possibility, elements which would constitute a crime?

24            And thus, in paragraph 8, the Prosecution mentioned a number of

25    elements that in the Defence's view can't constitute a crime because the

Page 21804

 1    element under number 5, item 8, in the Prosecution's final trial brief,

 2    that is under (e), this cannot be covered by descriptions of acts that

 3    would constitute a crime.  That is, (e), which says that the accused is

 4    guilty for acts or omissions according to 7(1) or 7(3) of the Statute,

 5    Article 7(1) or 7(3).  According to the Defence, one's criminal

 6    responsibility cannot be an element of a crime, cannot constitute an

 7    element of a crime.

 8            A quick analysis of the items 1 to 4.  And by doing this, the

 9    Defence would like to say that perhaps the Prosecution doesn't have a

10    clear idea of what constitutes the crime of inflicting unlawful terror on

11    the civilian population.  What does the Defence want to say?  We want to

12    say that the term "unlawful infliction of terror on civilian population"

13    cannot contain the word, the term "unlawful."  The unlawful nature of acts

14    against civilians is a basis for treating such acts as crimes.  And thus,

15    any act that is unlawful and that violates certain values, fails to

16    protect certain values, if it has certain social weight, it can thus be

17    treated as a crime.  If it has certain social consequences, it can thus be

18    treated as a crime.

19            JUDGE ORIE:  Ms. Pilipovic, if you could find a suitable moment

20    for a break within one or two minutes, that would be appreciated.

21            MS. PILIPOVIC: [Interpretation] I didn't receive any

22    interpretation, Your Honour, but I think that I realise that it is time

23    for a break.

24            JUDGE ORIE:  Yes.  After a certain period of time, one starts to

25    understand each other, sometimes even without words.

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Page 21806

 1            We'll have a break, and we'll resume at 11.00.

 2                          --- Recess taken at 10.31 a.m.

 3                          --- On resuming at 11.03 a.m.

 4            JUDGE ORIE:  Please proceed, Ms. Pilipovic.

 5            MS. PILIPOVIC: [Interpretation] Thank you, Your Honour.

 6            So, before the break, the Defence started analysing the Count 1 of

 7    the indictment, paragraph 8 of the final Prosecution brief, in which the

 8    Prosecution referred to elements of the criminal offence of the unlawful

 9    infliction of terror against civilian population.  It says under (a) that

10    "the element of unlawful act is a violence."  According to the Defence,

11    the question that has to be asked, whether threat can at all constitute an

12    element of unlawful behaviour in the condition of -- in the conditions of

13    an armed conflict when the warring parties are making threats in relation

14    to the operations of their units, and that question can also be phrased as

15    to whom these threats are addressed.

16            Now, the question can be asked whether the threats are addressed

17    to the armed forces by their representatives of the other warring party,

18    and it cannot be considered as being an element of the criminal offence

19    against a civilian population.  So according to the Defence, the threat

20    would have to be made or addressed to the civilian population so that it

21    can become part of or an element of the criminal offence of terror against

22    civilian population.

23            Theoretically, it is possible to envisage such a situation, that

24    when an announcement in the media or by direct address to an unspecified

25    number of persons that are on the side and the control of the other

Page 21807

 1    warring party, somebody issues a threat, and that must be considered a

 2    crime.  So the threat, according to the Prosecution, is an element of a

 3    criminal offence as unlawful infliction of terror against civilian

 4    population must be issued to an unspecified number of persons.  It must be

 5    serious.  It must be real.  And it must be capable to cause terror or

 6    spread terror among civilian population.

 7            The Defence has already stated that the unlawful nature of the

 8    acts is self-evident.  But as an element of the criminal offence, all of

 9    these acts have to be specified, or at least most of them, how this terror

10    can be caused and spread.  If we look in paragraph 8, Item 3 of the final

11    submission of Item (c) says that, "The acts of threat of violence are

12    issued with the intention of spreading terror on the civilian population."

13    Now, this position of the Prosecution can be acceptable in part, that when

14    the terror is spread, acts have to be undertaken not just unlawful, but

15    with the result of causing and spreading terror.  So the intent of the

16    perpetrator of these acts, when he undertakes these acts, must be

17    precisely this:  To cause terror or spread terror through these acts.

18            The Defence would also like to stress that the Prosecution has

19    insufficiently interpreted elements of the criminal offence of the

20    unlawful causing terror to civilian population, that the Prosecution

21    mentions or adopts in the indictment, and in further motions and

22    submissions and positions.  The Defence believes that the three proposed

23    elements in paragraph (h) of the final Prosecution brief, which is (a),

24    (b), and (c), elements under (a), (b), and (c), and particularly elements

25    under (a) and (b), can only constitute two elements, because item (a) and

Page 21808

 1    item (b), according to the Defence, can constitute just one element of

 2    this criminal offence.  While the second element of this criminal offence

 3    was proposed under item (c).  These two elements under (a) and (b) that

 4    could stem from the Prosecution's position, that is unlawful violence or

 5    threat of violence to do with the infliction of terror and spread of

 6    terror among civilian population should be more specific.  And pursuant to

 7    the four Geneva Conventions and Protocol II, when we are speaking about

 8    the case of the Prosecutor versus General Galic.

 9            Now the position on the application of Geneva Conventions and the

10    additional protocols I and II, the Defence has in detail interpreted and

11    spoken about in its final submission, and regardless of its positions

12    referred to in the pre-trial brief where the Defence is stated that it is

13    possible to accept that it was the obligation of the warring parties to

14    accept all provisions of protocols I and II and the Geneva Conventions of

15    1949, the Defence would like to repeat that in the specific case where

16    your Trial Chamber's decision is expected, the Protocol I should not be

17    taken into consideration because the Protocol number I is dealing with

18    relationships with the warring parties in international armed conflict.

19            According to the Defence, Protocol I, that is, the provisions of

20    Protocol I, should not be considered as legal rules because it is obvious

21    that the Prosecutor did not prove the nature of armed conflict in the

22    Sarajevo theatre and did not oppose the Defence's position that it is

23    civil war that we're dealing with here, that is, an internal conflict.

24    The Defence believes that it is groundless in this case that the

25    Prosecution refers to Article 51 of the additional Protocol I when giving

Page 21809

 1    elements of the criminal offence of the unlawful terrorise -- inflicting

 2    of terror on civilians.  Although in paragraph 2 of Article 51 of Protocol

 3    I, there is absolutely the same protection provided for to the civilian

 4    population as in paragraph 2 of Article 13, Protocol II, which furthers

 5    the position of the Defence that there is no place to -- that it is

 6    groundless to apply the provisions of Protocol I when we are dealing with

 7    the protection of civilian population during an internal conflict which --

 8    that has been to be done through the application of the provisions of

 9    Protocol II of the Geneva Conventions.

10            Now the criminal offences of the unlawful terror of civilians

11    cannot be generalised, but they have to be specified which are the violent

12    acts which can be undertaken with their main objective being spread of

13    fear among civilian population.  What has to be borne in mind is that the

14    Prosecutor has not been given any guidelines of what kind of criteria,

15    what kind of fear it should be, so that we can speak about the criminal

16    offence of causing or spreading terror.  The Defence believes that the

17    term of "terror" must be clearly defined as an element of a criminal

18    offence of unlawful infliction of terror on civilian population.  Without

19    this element, we cannot speak about a criminal offence.  It is an element

20    which has remained without an explanation.

21            And according to the Defence, the Prosecutor in Count 1 of the

22    indictment is charging General Galic for a nonexistent criminal offence.

23    I would like to stress that the Trial Chamber's role is not to decide on

24    what the criminal offence is.  The role of the Trial Chamber is to

25    establish certain events on the basis of facts and through assessment of

Page 21810

 1    evidence shown, establish whether these facts are sufficient so that they

 2    can be provided for under a certain criminal offence which has already

 3    been regulated.  If it hasn't, then there is no criminal offence.

 4            When we're speaking about the charging for unlawful terror, which

 5    according to the Prosecutor General Galic has carried out through a

 6    campaign of shelling and sniping on civilian areas and civilian

 7    population, what has not been mentioned is what kind of fear must exist.

 8    What the Prosecution said, instead, was that the civilian population was

 9    that civilian population suffered from psychological suffering, and that

10    these are the two sides of the same coin.  Fear, as a psychological

11    category, in any case is psychological suffering, mental suffering, and we

12    cannot speak about the term of fear or causing fear, and about a separate

13    causing of psychological suffering.

14            Inflicting of terror as an element of a criminal offence,

15    according to the Defence, cannot be causing of any kind of terror or

16    causing terror of any intensity so that the fear, that is, its infliction,

17    can be a constitutive element of a criminal offence and a significant

18    element.  It has to be of the highest intensity.  It has to be long term.

19    It has to be direct.  And it has to be capable of causing long-term

20    consequences.  These four elements, when they are fulfilled, when these

21    conditions are met, then we can speak about fear as being an element of

22    this criminal offence.

23            It is possible for a person to suffer from fear of high intensity,

24    which can make this person suffer for a long time and serious

25    consequences.  And within a short period of time, a person can suffer from

Page 21811

 1    this kind of fear without this intensity so that it can be -- constitute

 2    an element of the criminal offence of causing terror or spreading terror.

 3    When we're speaking about fear having to last for a long time, to be a

 4    long-term condition in order to confirm the second element of the criminal

 5    offence, the way it has been envisaged by the Prosecution, which is the

 6    intent to cause fear, because otherwise, then just one act that would

 7    cause fear in another person would then bring doubt about the intent of

 8    causing fear.  According to the Defence, in order to have the criminal

 9    offence of unlawful causing of terror against civilian population, what we

10    have to establish is also the intent to cause fear or spread fear among

11    the entire civilian population, or at least one part of the civilian

12    population in specific conditions.

13            When we are -- if we're dealing with a part of a civilian

14    population against there was an intent to spread terror among them, and

15    under this term, the Defence understands all four conditions for causing

16    fear, as we have already explained in the previous paragraph of this final

17    submission, then this would be a part of the civilian population that

18    would be physically separated or these acts of infliction of violence or

19    threats would have to be clearly defined as acts that are undertaken

20    precisely in order to inflict terror to that -- against that part of the

21    civilian population.  In their final submission, the Prosecution under

22    item 9 also talks of their position, that General Galic is also guilty of

23    attacks on -- unlawful attacks on civilians under Counts 4 and 7 of the

24    indictment in relation to Article 51 of the additional Protocol I and

25    Article 13 of additional Protocol II, and that would be shelling or

Page 21812

 1    sniping, and they would be also punishable under Article 3 of the statute.

 2            This precisely here, the Defence believes that its position is

 3    justified regarding the criminal offence of unlawful infliction of terror

 4    against civilian population.  The Defence states that the Prosecution has

 5    not provided enough evidence in relation to the existence of elements for

 6    the criminal offence that the Prosecution calls unlawful infliction of

 7    terror against civilian population and that the definition that has been

 8    suggested or proposed of this criminal offence by the Prosecution is not

 9    complete.  Therefore, practically, this criminal offence did not exist.

10    The Defence believes that it is necessary for acts of violence or threats

11    of violence have to be more strictly defined.  And when the Prosecution

12    states that the acts of General Galic, there are elements and criminal

13    offences that the Prosecution calls unlawful attacks on civilians as it is

14    stated in Counts 4 and 7 of the indictment, although the Defence states

15    that in the indictment there are no such words as "unlawful" but only

16    attacks on civilians, considering the provisions mentioned of the

17    additional protocols of the vehicles, while in the final submission the

18    Prosecution is speaking about the unlawful attacks on civilians.  The

19    Defence has already pointed in analysing the previous case under 8 that it

20    is unnecessary when we're speaking about the criminal offence to define it

21    as unlawful because only an unlawful act can be considered a criminal

22    offence.  And only in certain cases is a criminal offence.

23            What is important here is that the Prosecution should -- has been

24    suggesting, putting forward elements of a crime that in the Defence's

25    opinion are not acceptable because they don't point to any differences

Page 21813

 1    between the acts of violence and the act of threatening with violence in

 2    the elements that were suggested or put forward as the unlawful act of the

 3    infliction of terror on the civilian population in paragraph 8.  It is the

 4    Defence's opinion that the Prosecution relates such acts to death or

 5    serious injuries, as in the case of -- the act of unlawfully attacking

 6    civilians.  So we ask:  How is it possible to commit violent acts that

 7    would not result in death or serious injury?  And for those acts to

 8    represent acts that spread terror among the civilian population?

 9            In the Defence's position, terror can appear among the civilian

10    population if the civilian population hasn't been frightened by the

11    results that one might expect given the acts of violence.  And these

12    results would be death or serious injury.  So the impossibility of making

13    a distinction between these acts, the acts of violence that would be

14    different in these cases, and as we said, such acts have to be specified,

15    this impossibility doesn't allow the Prosecution to have two charges for

16    the same act.  And even less, to ask for the same of conviction that it

17    asks in Items 1, 4, and 7 -- in Counts 1, 4, and 7 for various criminal

18    acts that were committed through the same means, by sniping and shelling,

19    and having the same target; namely, civilians.

20            The Defence will now turn to paragraph 9 of the Prosecution's

21    final trial brief, where the Prosecution suggests that the crime of

22    unlawful attack against civilians can consist of the following, as I said

23    in Item 9:  The Prosecution said that the result of the attack was the

24    death of civilians or the serious injury of civilians or a combination of

25    the two; secondly, constituted by the civilian status of the population.

Page 21814

 1    They state that the civilian of the population or the individuals who were

 2    killed or were seriously injured was known or should have been known.

 3    They state that the attack was directed at the civilian population or at

 4    individuals.  There's a connection between the attack and the armed

 5    conflict, whether it's an international or internal conflict, and the

 6    accused is criminally responsible for the attack either under Article 7(1)

 7    or 7(3) of the statute.  The Defence again wants to indicate that element

 8    under (e) does not constitute a crime because one's criminal

 9    responsibility has to be established in the course of the proceedings

10    given the acts or omissions of the person in question so that the elements

11    suggested under (e) is not -- does not constitute a crime in the Defence's

12    opinion.  It is something that has to be established as the relation --

13    the attitude that an individual had towards the acts or the results of

14    those acts.  In the Defence's opinion, all four elements, the elements

15    listed under (a) and up until (d) must be cumulatively fulfilled if they

16    are to constitute an unlawful attack; or rather, if they are to constitute

17    a crime.

18            As what the Prosecution's position is in this case can be seen

19    from the description, the analysis of the described acts, which described

20    under Counts 4 and 7 in the indictment as unlawful attacks against

21    civilians carried out by campaign of sniping attacks, Count 4; or by

22    campaign of shelling civilian areas and of shelling civilian population

23    from artillery and mortar weapons.  That is stated in -- under Count 7.

24    In both cases, the Prosecution states that General Galic is guilty of a

25    criminal attack, an unlawful attack on civilians and divides his

Page 21815

 1    responsibility, treats his responsibilities on the basis of the weapons

 2    used.  In the elements suggested for this crime, the Prosecution does not

 3    suggest what sort of attacks should be carried out.  They only state that

 4    what is important is that there should be the intention to attack the

 5    civilian population or individual civilians, and that the result of these

 6    attacks should be the death or serious injury of civilians or a

 7    combination of these two factors.  Naturally, with the condition that

 8    allows for the application of Article 5 of the statute.

 9            In the indictment, the Prosecution in Schedule 1, it has specified

10    24 incidents that could be representative examples as the unlawful attack

11    on civilians -- of an unlawful attack on civilians.  And the Defence would

12    immediately like to indicate that if the acts of the accused examined with

13    regard to the elements -- the fact that the elements of carrying out a

14    criminal attack against a civilian have been met, then it is Defence's

15    position that a representative example cannot be underlined in the

16    examples put forth.  All that we find are examples that have not been --

17    that have been proved or that have not been proved.  This is a specific

18    criminal act.  An attack against the civilian population or individual

19    civilians is carried out as stated under Item (c) of the definition put

20    forward in Item 9 of the Prosecution's final trial brief.

21            In such case, it is necessary to say quite clearly that each such

22    attack, if we're talking about sniper attacks, each such attack has to be

23    proved.  It is not possible to assume that an attack was carried out

24    against a civilian population or rather against individual civilians.  It

25    appears that in this definition the Prosecution wants to find a way in

Page 21816

 1    which it could support its thesis, its positions, which in the Defence's

 2    opinion can't be supported.  They want to show there is an attack against

 3    the civilian population.  They want to present this as a general idea,

 4    that an attack was carried out against an unspecified but a significant

 5    number of civilians.  If we're talking about sniper attacks against

 6    civilians, then we can only talk about sniper attacks directed at

 7    individual civilians and not sniper attacks directed at the civilian

 8    population as a whole.

 9            Individual attacks against civilians, in the Defence's opinion,

10    have to be proved.  The Prosecution has failed to prove a significant

11    number of individual cases, and the conclusion that the Prosecution has

12    reached is of a general nature.  In the Defence's opinion, the Prosecution

13    has not proved intentional attacks against civilians in the 24 cases

14    described.

15            The element of intent when attacks were launched against a

16    civilian population or individual civilians has to be clearly established,

17    and it has to be proved that this was the intent, that this was decided by

18    the person who launched the attack, and that the attack was directed

19    against a civilian whose status was well-known or should have been

20    well-known to the person acting.  The Prosecution suggests or puts forward

21    as an element of crime and as a significant element of crime in the case

22    of attacks carried out against civilians, it suggests intent under (c),

23    and the Defence accepts this.  But we would like to ask how is it when

24    describing acts in Counts 2 and 4 of the indictment, they mention the

25    deliberate targeting of civilians from firearms, whereas under Counts 5

Page 21817

 1    and 7 in the indictment, no mention is made of the intentional, the

 2    deliberate shelling of civilians.  It is obvious that in the case of the

 3    criminal act carried out against civilians, the criminal shelling of

 4    civilians, the Prosecution did not refer to intent, the deliberate nature

 5    of such acts.  Is seems that it extrapolates such an intent from the fact

 6    that the principle of distinction and proportionality has been violated.

 7    And in the Defence's opinion, this is something that can't be accepted.

 8    Intent has a far stronger psychological connotation than acts that some

 9    individual may take, and has a far stronger psychological connotation than

10    the result that such an individual may desire.

11            Far stronger than the psychological connotation that is establish

12    when the principle of distinction and proportionality is violated.  If in

13    Count 4 of the indictment, the Prosecution referred to the deliberate

14    targeting of civilians from firearm, the direct firing, and in Count 7,

15    the Prosecution didn't mention the deliberate targeting of the civilian

16    population, but only linked this to the violation of the principle of

17    distinction and proportionality, if that is the case, this goes contrary

18    to the idea of a criminal offence constituted by an attack against

19    civilians, because in Item 7, there remains an essential element of a

20    crime which is put forward by the Prosecution in paragraph 9 (c) of the

21    Prosecution's final trial brief.  In other words, there is no intent.

22            As we said, the explanation of the principle of distinction and

23    proportionality is, in our opinion, linked to the intent to shell.  But in

24    paragraph 10, the Prosecution -- in paragraph 10 of its final trial brief,

25    the Prosecution states that the principle of distinction and

Page 21818

 1    proportionality lie at the heart of the charges for unlawful attacks.

 2            I apologise.

 3            We were referring to paragraph 10 in the Prosecution's final trial

 4    brief where it is stated that the principle of distinction and

 5    proportionality are at the heart of the charges, at the heart of the

 6    charges for unlawful attacks.  The Defence will try to examine these

 7    allegations of the Prosecution and the allegations of the Prosecution in

 8    paragraph 14 of the final brief where it is stated that a large number of

 9    indiscriminate and disproportionate attacks ordered by the accused were

10    present and they were carried out by the SRK forces that were under his

11    command and control.  And on that basis, it is possible to conclude that

12    certain civilians, certain members of the civilian population were the

13    subject of an attack which is contrary to Article 51, Item 2 of the

14    protocol -- of the additional protocol and Item 13 of Protocol II.  The

15    Prosecution didn't mention what sort of attacks were carried out, and

16    we're talking about the firearms and principle of distinction and

17    proportionality that were violated.  The Defence asks on the basis of what

18    evidence does the Prosecution claim that General Galic ordered a

19    significant number of indiscriminate and disproportionate attacks to be

20    carried out?  And on what basis did it then conclude that the civilian

21    population and individual civilians were the subject of specific attacks?

22            The principles of indiscriminate and disproportionate attacks are

23    not related to attacks carried out against the civilian population and

24    attacks carried out against civilian facilities because when the

25    Prosecution presents its principle on distinction in paragraph 17 of its

Page 21819

 1    final trial brief, the Defence would like to say that the Prosecution had

 2    the duty to present only those items, only those items that refer to the

 3    principle of distinction.  And these are items that a military commander

 4    has to respect if we're referring to the principle of distinction.  These

 5    are the obligations of a military commander to direct his operations

 6    against military targets alone.

 7            In paragraph 17 of its final trial brief, the Prosecution states

 8    that attacks carried out against the categories listed below present

 9    evidence, an evidentiary basis, that the attack was directed against the

10    civilian population, and then they mention elements listed under (a), (b),

11    and (c).  (A), as the Prosecution states, says that attacks directed

12    against civilians as such, whether they are directed against particular

13    targets or against civilian areas in general.  (B), attacks directed at

14    military and civilian targets without distinction.  And (c), attacks

15    directed at legitimate military targets which result in civilian victims,

16    a number of civilian victims which is disproportionate to the military

17    advantage that might be expected.  It is immediately obvious that the sort

18    of attacks that are described under (c) cannot by any means come under the

19    principle of distinction because such attacks according to the Prosecution

20    were carried out against legitimate military targets but violated the

21    principle of proportionality and could only be categorised under the

22    concept of proportionality.

23            The type of attack described under (a), in the Prosecution's

24    opinion, similarly has no connection to the principle of distinction

25    because the Prosecution mentions attacks, describes attacks which had been

Page 21820

 1    deliberately directed against civilians regardless whether these attacks

 2    were directed against civilian targets or civilian areas in general.  If

 3    some attack is directed deliberately against civilians, then we are no

 4    longer referring to the principle of distinction, that is to say, to the

 5    principle of distinguishing military from civilian targets because the

 6    attack is carried out with the intention of targeting a civilian object, a

 7    civilian target.  The principle of distinction is only relevant in the

 8    sort of attacks that the Prosecution cites under (b) in paragraph 17 where

 9    the attacks are directed at military and civilian targets without making

10    any distinction.  The Defence has to state that the principle of

11    distinction in the decisions taken by the competent commanders and this

12    does not necessarily have to be General Galic in this specific case.  This

13    principle was respected to the extent that it was possible to respect such

14    a principle under conditions of urban warfare.

15            We believe that in the conditions of the civil war, when it is

16    impossible to make strict distinctions between soldiers and civilians,

17    particularly if the civilian war was unfolding in urban where in the same

18    locations were soldiers and civilians, they were using the same facilities

19    which was shown in evidence, in such a situation, it is absolutely

20    impossible to fully respect the principle of distinction, that is, to use

21    selective firing.

22            Looking at these positions, the Defence would also like to say

23    that in paragraph 19 of its final brief, the Prosecution's opinion is that

24    the principle of distinction was violated on the basis of statements, that

25    because of a presence of a person which was not protected under item --

Page 21821

 1    paragraph 3 of Article 13 of the Additional Protocol II, there should not

 2    be an attack allowed against a whole group of civilians because the

 3    protection of civilian population, as the Prosecution says, would become

 4    completely illusory.  Now, the Prosecution sets off from an erroneous

 5    suposition that the SRK units carried out attacks on targets where there

 6    was no clear distinction between military and civilian targets and says

 7    that it is not lawful to target civilians, only if there was a soldier

 8    present there.

 9            However, the operations of SRK units were not directed in a single

10    case, when we are speaking about opening of direct fire, towards targets

11    that could be both military and civilian but exclusively towards targets

12    that were legitimate military targets.  The Prosecution has not proven

13    that there was any kind of artillery attack with direct fire that would

14    cause victims among civilian population.  The Prosecution has tried to

15    prove that there were incidents when SRK units fired weapons for indirect

16    shelling, that is, mortars, and that on those occasions civilians were

17    deliberately targeted, not that these incidents happened, occurred because

18    of the violation of the principle of distinction.  In any case, the

19    principle of distinction cannot be questioned in any of the scheduled

20    shelling incidents because throughout the proceedings, the Prosecution has

21    been trying to prove that these incidents occurred when civilians were

22    deliberately targeted.

23            In paragraphs 21 to 33, the Prosecution gave its view of the term

24    of the principle of proportionality and saying that it was necessary for

25    the commander to look at the situation, and according to the principle of

Page 21822

 1    proportionality, and according to the Prosecution, that would open up

 2    several issues.  The Prosecution believes that it is not sufficient just

 3    for the commander to decide that a proposed target is a legitimate

 4    military target, but it is also necessary, as they say, to follow the time

 5    factor because some legitimate military targets do not always represent

 6    legitimate targets.  Therefore, according to the Prosecutor, it is

 7    necessary to establish that the time when the decision is made there is a

 8    possibility for a partial or full destruction, taking, or neutralisation

 9    of the target in order to ensure definitive military advantage for the

10    side undertaking the operation or the action.

11            The Prosecutor believes that this is particularly necessary in a

12    situation where a large number of civilians are mixed with military

13    targets and with the dual use of facilities in urban conditions.  This

14    position of the Prosecution, this view of the Prosecution, according to

15    the Defence, is more linked to the principle of distinction.  The

16    Prosecution believes - and the Defence believes this to be erroneous -

17    that the principle of proportionality is in relation to the situation when

18    it is possible to expect for a military action would cause coincidental

19    loss of life of civilians.  What also needs to be mentioned is that a

20    commander, having decided on a legitimate military target, would expect

21    that the opposing warring side has behaved fully according to its duties

22    from the Geneva Conventions and that in those areas of combat operations

23    civilians are not present, that is, civilians are not present in the area

24    of the legitimate military target.

25            In paragraph 23, the Prosecutor says that the principle of

Page 21823

 1    proportionality is contained in provisions of Article 51(5)(b) of the

 2    Additional Protocol I which prohibits indiscriminate attacks.  We believe

 3    that the Prosecutor is confusing these two terms because "indiscriminate

 4    attack" means a nonselective selection of target.  Therefore, we are

 5    speaking about distinction, not proportionality.  Principle of

 6    proportionality is linked to the term of "ethics of warfare."  As the

 7    expert of the Defence Professor Doctor Radovan Radinovic stated in his

 8    report in paragraph 235, "when there are two principles of warfare that

 9    are conflicting here, the principle of military efficiency and the

10    principle of humaneness."  According to Mr. Radinovic, the principle of

11    military efficiency makes the commander use with maximal effect and

12    minimal losses on their side that they would carry out their military

13    task.  The second principle, the principle is of a proper behaviour

14    towards the enemy, which means restraining from activities that could

15    inflict on the enemy additional suffering that would go well over the

16    necessary force in order to neutralise the enemy and make him incapable.

17            When we're asking the question whether anybody is acting

18    disproportionately, then it is not a question whether anyone acted against

19    a legitimate military target, but the question asked is whether it was

20    necessary to use that amount of force that was used during carrying out of

21    a military operation, military task, and achieving the necessary military

22    success expected to be achieved by the operation undertaken.

23            The Defence would like to cite the example of violation of the

24    principle of proportionality during the war that the US waged in the

25    Philippines in 1945 when Manila was taken, when there was large losses

Page 21824

 1    that were inflicted on the enemy personnel, 100.000 civilians were

 2    killed.  And what was said is that most of them were killed during the

 3    exchange of fire.  What can we say about the 253 victims during the two

 4    years' war in Sarajevo?  Let us look at the example of NATO war in

 5    Yugoslavia in 1999 when there was a violation of the principle of

 6    proportionality wherewith minimal losses on their side, thousands of

 7    civilians were killed where Yugoslavia army could not be expected.

 8            In all these wars, the commanders were only bearing in mind what

 9    military objectives they had to achieve without worrying about the force

10    used and the way this force was used, whether it was justified or not.

11    The Defence has to stress, speaking of the question of proportionality,

12    that it was symptomatic regarding the bombing of Television Belgrade,

13    Wesley Clark said that we knew that the Serbian television will start

14    working again with alternative means.  There is not one single switch that

15    would switch off everything, but we thought it was a good move to hit it

16    and the political leadership agreed.  This was his interview on TV.

17            This target, as explained by Mr. Clark of hitting Belgrade

18    television when 16 persons were killed, this had nothing to do with the

19    military advantage.  They didn't even try to justify the military

20    advantage they were supposed to gain.  Such examples were nonexistent in

21    our case because the position of the Prosecutor that the SRK violated the

22    principle of disproportionality is groundless.

23            The Defence would like to speak about paragraph 33 of the final

24    submission of the Prosecution, speaking about the shelling of the football

25    match, saying that this was also one example of the violation of the

Page 21825

 1    principle of proportionality.  Before that, the Defence would like to

 2    mention that the proportionality of an attack cannot be looked at in the

 3    light of one single incident.  The Defence claims that 253 persons who

 4    were killed allegedly as a result of sniper actions as seen in the

 5    indictment is contrary to the principle of proportionality.  When we're

 6    looking at other similar examples in the history of warfare, doesn't point

 7    to the violation of this principle because the military success of the SRK

 8    in combat in Sarajevo is to keep 50.000 people in this part of the theatre

 9    of operations.

10            When I said that in paragraph 33 of their submission, the

11    Prosecutor says that the shelling of the football match, the shelling

12    incident number 1 from the annex number 2 of the indictment was

13    disproportionate, we have to say that this is contrary to the claim of the

14    Prosecutor so far that on that occasion, there was a deliberate targeting

15    of civilians.  This claim that this incident is an example of a

16    proportional violation of the proportionality principle, the principle

17    says that there was no military activity ongoing at that time near the

18    football match; second, soldiers were all of low rank, it was a holiday,

19    this was advertised, and it was probable that there would be a large

20    number of civilians present; and under item 3, that there was no

21    legitimate military target except for several soldiers nearby at the time

22    of the attack.  The Defence has to say that the reasons that the

23    Prosecutor is listing to justify his position is incomprehensible,

24    controversial, contradictory, and unacceptable.

25            First of all, during the armed conflict when we have daily combat,

Page 21826

 1    it is not necessary for military action when it is undertaken; (b),

 2    absolutely caused by a military action of the opposing side from the

 3    location towards which it is operation.  Now, the in the paragraph 33, the

 4    Prosecution says that the soldiers who were playing in the match, they

 5    were present there, but they were of low rank, and that that was one of

 6    the reasons that they shouldn't be allowed to have a military operation

 7    launched against them.  Now if the Prosecutor says that the soldiers who

 8    were playing at the match were legitimate military target, but by

 9    respecting the principle of proportionality, this target should not be

10    allowed because the soldiers were of low rank or because it could be

11    expected that there would be present a large group of civilians, then the

12    Prosecutor in this specific case needs to explain his position through the

13    evidence shown.  This -- none of the SRK members knew that there would be

14    a match because the match was not advertised, there would have been no

15    assumption that could be drawn that there would be a large number of

16    civilians present because the match was played on the front line near the

17    military targets, near the facilities of the command of the 5th Motorised

18    Brigade.  Third, now saying that there was no legitimate target near this

19    location, apart from a few soldiers, except for the soldiers, we find this

20    groundless, and we don't know which soldiers the Prosecution is referring

21    to.

22            Now, when we are speaking about the principle of proportionality,

23    we know when there is no legitimate military target then we cannot speak

24    about the violation of the principle of proportionality but we would have

25    to apply a different principle in that case.  When the Prosecution in Item

Page 21827

 1    2 admits that the soldiers were playing a football match but they were of

 2    a low rank and that would justify the decision for them not to be

 3    targeted, but in Item 3, the Prosecution says there were only a few

 4    soldiers present nearby, not on the location during the attack.  The

 5    Defence says this is a contradiction which in any case cannot be linked to

 6    the analysis of the application of the principle of proportionality.

 7            The Defence would like to stress that the Prosecution has not

 8    proven that the two mortar shells that landed on that day on the

 9    improvised football pitch from fired from the positions of the SRK units.

10    The Defence would like to stress that the Prosecution has not come up with

11    any exhibits, any evidence, that would confirm the operation of SRK

12    members in a way that would be contrary to the principles of distinction

13    and proportionality.  It seems that the Prosecution wishes to use general

14    and theoretical submissions and make the Trial Chamber conclude on the

15    basis of certain witnesses, UNPROFOR members, that there were such attacks

16    by SRK units; that would be nonselective, which would be a violation of

17    the principle of distinction and proportionality.

18            The Defence expects that the Trial Chamber on the basis of such

19    evidence and witness testimony by Kupusovic, Mandilovic, Kovac,

20    Mr. Tucker, Ashton, and of Mr. Baal, and for whom the Defence would like

21    to mention they were not eyewitnesses to any of the events that would be

22    proven here, in any of the elements regarding the deliberate attacks on

23    civilian population, they were not eyewitnesses.  The witnesses that I

24    have listed were not questioned regarding the circumstances of the events,

25    of every single event, of every single incident.  Without that, we cannot

Page 21828

 1    establish that there was deliberate targeting.

 2            The Defence would like to say that in the Sarajevo theatre of

 3    operations, throughout the time relevant to the indictment, there was a

 4    daily combat that went on, which has to be looked at as a whole, because

 5    much evidence has shown that the BH army, its 1st Corps, and it took

 6    certain military actions, military operations in one part of the front

 7    with the intention to cover planned operations at the other end of the

 8    front.  And in these cases as the Defence has already pointed out, it was

 9    allowed to use operations by SRK units on any part of the front against

10    legitimate military targets in order to prevent operations of the units of

11    the 1st Corps of the BH army.  So the claims made by the witness according

12    to which the SRK members acted in an indiscriminate way throughout the

13    town has not been proven, and it is absolutely erroneous.

14            In the Sarajevo battlefield -- in the part of the Sarajevo

15    battlefield which was under the control of the 1st BH Army Corps, as the

16    Defence expert Dr. Radovan Radinovic has stated, was an area that

17    contained over a thousand legitimate military targets, and each action

18    taken against such military targets were legitimate acts.  And a lack of

19    proof about civilian victims during those actions is proof that the

20    principle of distinction and proportionality were fully respected in the

21    course of those actions.

22            With reference to legitimate military targets, the Defence would

23    like to turn to a lack of understanding that our colleague Ierace

24    mentioned with regard to the designated numbers on the map of legitimate

25    military targets.  If we have understood this correctly, our colleague,

Page 21829

 1    Mr. Ierace, wanted to prove that Mr. Radinovic wasn't consistent when

 2    analysing the legitimate military targets on the Sarajevo battlefield

 3    because there were numbers on the expert's map that were repeated.  For

 4    example, number 47.  As the Defence would like to explain that the circle

 5    containing number 47 referred to by colleague Ierace was coloured

 6    according to the key -- the colour used was according to the key, which

 7    shows that it is a combat position and the facility of units in the

 8    expected areas.  That means that 47 is designated several command places

 9    in the positions of units within the brigade, and that could be the

10    command places -- the command posts of battalions or of companies, and

11    that is the reason for which those positions were designated by the same

12    number, because they belonged to the same brigade.  That was done in order

13    to avoid confusion.

14            We would like to point out that the list of legitimate military

15    targets was compiled mostly on the basis of documents emanating from the

16    BH army and that General Radinovic had a significant number of documents.

17    And we would like to quote Mr. Karavelic according to which he had 30

18    brigades under his command.  In such a case, the list of legitimate

19    military targets and of their positions on this map would be far greater.

20            Now, I'd like to point out that various documents have been

21    designated with this number from the list of documents from which the

22    expert took -- obtained information about the positions of units and their

23    command posts, routes, bunkers, and all other legitimate military targets.

24            The Defence would also like to turn to paragraph 34 to 37 of the

25    Prosecution's final trial brief in which the Prosecution, in the Defence's

Page 21830

 1    opinion, again theoretically examines the necessity of sparing the

 2    civilian population civilian facilities, and this was something that was

 3    never disputed by the Defence.  However, such theatrical considerations

 4    have no relevance to the decision reached in this case because the

 5    Prosecutor hasn't charged General Galic with unlawful acts directed

 6    against civilian facilities.  And nevertheless, the Defence would like to

 7    point out that all facilities that were the subject of the attack of the

 8    SRK, of the Sarajevo-Romanija Corps, were legitimate military targets, or

 9    at the time when action was taken, certain operations were ongoing at that

10    time, or the units of the 1st Corps were located in those facilities, or

11    those facilities were used for the needs of the BH army.

12            We would like to point out that all the buildings along the

13    Miljacka River which were under the control of the BH army, from the post

14    office building to the press office, from Solitara [phoen], from

15    Momajuzair [phoen], all these high-rise buildings were legitimate military

16    targets.

17            Contrary to the case of the TV building being bombed by NATO in

18    Belgrade, where there were several civilian victims, and NATO did state

19    that the TV building was legitimate military target, the Prosecution

20    didn't even mention and let alone prove that there were victims in the

21    course of action taken by the SRK against the post office or the

22    Oslobodenje building.  So the only possible conclusion is the SRK units,

23    during the fighting in the Sarjevo battlefield, did not take action

24    against civilian areas, did not target civilian areas and civilian

25    buildings.

Page 21831

 1            In paragraph 38 of its brief, the Prosecution analysed Article 5,

 2    crimes against humanity.  And in items 2, 3, 5, 6, it charges General

 3    Galic with crimes as a result of unlawful attacks committed by the forces

 4    under the command of General Galic.  The Prosecution claims that these

 5    attacks were carried out by snipers and by shelling, and the Prosecution

 6    says that the results of these actions were the killing of civilians and

 7    inhumane acts.  In the Defence's opinion, it is obvious that the

 8    Prosecution thinks that it is sufficient to establish that an attack was

 9    carried out and that the principle of distinction and proportionality was

10    was violated, and thus it is possible to consider such an attack as having

11    been carried out deliberately.  The Defence contests such a position.  And

12    if we are referring to the violation of the principle of distinction and

13    proportionality, it is not possible to talk about the deliberate targeting

14    of civilians.  And if the civilians aren't the subject of a deliberate

15    attack, there is no possibility of charging anyone with the crime of

16    inhumane acts or murder.

17            In paragraph 40 of its final brief, the Prosecution says that as a

18    crime against humanity -- that murder is a crime against humanity, and

19    this is a crime directed at General Galic under counts 2 and 5 of the

20    indictment and it represents the unlawful and intentional killing of an

21    individual.  It put forward certain elements of the crime of murder.

22            With regard to counts 2 and 5 in the indictment, it is obvious

23    that causing death, killing someone, is not an act carried out by someone

24    failing to act, by an omission.  It is a matter of acting by firing from

25    light weapons, sniping, or from heavy weapons, shelling.  In this case, it

Page 21832

 1    was necessary for the Prosecution to show that someone was killed by

 2    sniping or shelling and to prove that that act, whether it was a sniping

 3    act or a shelling act, was committed in order to kill that person.

 4    Therefore, it is necessary to prove that the intention of the person

 5    firing was to kill the individual in question.

 6            In item 41 of its final trial brief, the Prosecution analysed

 7    counts 3 and 6, inhumane acts.  In the Defence opinion, if sniping and

 8    shelling, even if the actions taken were unlawful, such actions don't

 9    violate human dignity.

10            In item 43 to 53, the Prosecution analyses the background of the

11    conflict.  In the Defence's opinion, it misleadingly misrepresented the

12    events in the political and social sphere of Sarajevo and the events

13    related to the beginning of the breakout -- to the beginning of the

14    conflict, and we believe that these allegations will be taken into account

15    by the Trial Chamber and that the Trial Chamber will not accept the way

16    that these events were presented by the Prosecution.  In the Defence's

17    opinion, we have presented reliable evidence on the basis of which it's

18    possible to establish the facts concerning all the social events and the

19    political and military actions that preceded other events and provoked the

20    beginning of the conflict in Sarajevo, which is an area in which three

21    peoples live.

22            The Defence has submitted written statements, and we have also

23    heard the oral testimony of Dr. Slavenko Terzic, Dr. Kosta Cavoski, Dr.

24    Jelena Guskova.  These were expert witnesses for the Defence who provided

25    significant information based on reliable historical sources.  And on the

Page 21833

 1    basis of this information, it is possible to reach the conclusions the

 2    Muslims in Sarajevo in all walks of social life, in all spheres of social

 3    life and of political life, acted in a manner that was contrary to the

 4    constitution, that violated the constitution.  Much of the evidence

 5    presented in the course of these proceedings and presented before this

 6    Trial Chamber - for example, the written statements, the written statement

 7    of Dr. Radovan Radinovic - has proved -- these documents proved that the

 8    Muslims were preparing to establish their supremacy by having -- their

 9    supremacy over the Serbs and the Croats by having a recourse to war.  And

10    at the time, in order to achieve this purpose, they formed paramilitary

11    formations.  The Patriotic League was the most organised such formation,

12    and according to the statements made by General Sefer Halilovic and

13    General Stejpan Siber, the army was formed by the SDA, the party army, and

14    it had been formed as early as February 1992.

15            It is the Defence's opinion that the Muslims provoked armed

16    conflict because they were preparing for war.  We would like to support

17    this claim of ours by referring to an article from Slobodna Bosna, dated

18    the 27th of March, and the title was "The Bosniaks have to prepare to

19    reach the war in Drina by having recourse to arms."  The Defence doesn't

20    want to tender this as an exhibit.  I said I just wanted to use this as an

21    example.

22            MR. IERACE:  I object, Mr. President.  And as I understand the

23    course my learned colleague proposes, it is to take the Trial Chamber to a

24    document which is not in evidence.  It is not so much the document but,

25    rather, the reference to material per se which is not in evidence to which

Page 21834

 1    I object.  Already there have been such references in the address.  But at

 2    this point, Mr. President, I make my objection.  Thank you.

 3            JUDGE ORIE:  Yes.  Ms. Pilipovic.

 4            MS. PILIPOVIC: [Interpretation] Yes.  Your Honour, I have

 5    understood the objection.  Now I'll move on to another subject.  But I

 6    didn't want to tender this, to present this article as evidence.  I just

 7    wanted to use this document as an example of the Muslims' position, the

 8    position of the Muslim people in Bosnia and Herzegovina.  The Defence will

 9    indicate that --

10            JUDGE ORIE:  Yes, let's first try to...  I see that it is on the

11    screen.  It is illegible for us at this very moment, so that would

12    prevent --

13            MS. PILIPOVIC: [Interpretation] Yes, Your Honours.  As I said I

14    wanted to use this as an example, thank you.  All I will say is that this

15    article, it's an article from Slobodna Bosna dated 27th of March, 2003.

16            JUDGE ORIE:  Ms. Pilipovic, the main party's objection was not

17    whether we see an illegible part of a newspaper on our screen, but whether

18    it is appropriate to refer to any material which is not in evidence.

19            MS. PILIPOVIC: [Interpretation] As I said, I just wanted to

20    illustrate the Defence's claims.  But given time restrictions, the Defence

21    will move on to other subjects.

22            JUDGE ORIE:  Yes.  Please proceed.

23            MS. PILIPOVIC: [Interpretation] Thank you.

24            The Defence would like to point out that the Party of Democratic

25    Action formed the Patriotic League and that given this position and having

Page 21835

 1    formed -- established an army, they demonstrated the militant nature of

 2    the SDA.  We would like to say that Sarajevo is a town in which the names

 3    of institutions, squares, and streets were changed, not just institutions

 4    that had names which derived from values established during the Second

 5    World War, but also derived from the cultural and social life and that had

 6    Croatian and Serbian connotations.  Before the conflict broke out, there

 7    were 160.000 Serbians living in Sarajevo, and now there are only several

 8    thousand.

 9            The Defence would like to point to a claim made by the Prosecution

10    in paragraph 53, which is unacceptable, according to which the

11    presentation of Milan Maudza at a meeting in May 1992 is considered to be

12    proof that Sarajevo was at that time established as a military objective.

13    In our opinion, that position is not acceptable not only because the

14    Prosecution didn't refer to the source from which this document was

15    obtained, but also because it was quite obvious that this document has

16    manipulated by the Prosecutor because expert Donia showed it without any

17    seals.  And after the Defence had contested its authenticity in the course

18    of the cross-examination of the Defence's witness, tried to tender as

19    evidence a copy from the committee of -- to try to get a copy introduced

20    as evidence which was provided by the seal from the committee of the war

21    crimes committee from BH; and thus, the source would have been secured.

22    It is also because the Prosecution has tried to avoid this primary source.

23      This is the Defence Exhibit D1926.  By comparing this with the primary

24    source, Exhibit D1926 which -- whose authenticity has not been contested

25    by the Prosecution, the secondary source and subjective information by

Page 21836

 1    some participant -- personal information provided by some participant, and

 2    the record from the 14th of May, 1992, these documents don't have any

 3    probative value and are undoubtedly irrelevant.

 4            The Defence would like to show the erroneous claims made by the

 5    Prosecution in paragraph 52 of its final trial brief according to which

 6    the witness Kupusovic on the 2nd of May, 1992, was the eyewitness of tanks

 7    that arrived from Lukavica and opened fire on the presidency and the town

 8    assembly.  And it was stated that fire was returned from those buildings.

 9    This is a claim referred to footnote 66 where reference is made to

10    transcript 7 -- page 718.  By analysing the transcript, the

11    Defence established that the witness Kupusovic did not claim on that page

12    that he had seen tanks, and that the tanks came from the direction of

13    Lukavica and that they opened fire on the presidency.  The witness

14    Kupusovic on page 718 stated that at the time, he was in Marin Dvor that

15    he was not an eyewitness of the events referred to by the Prosecution.

16            On page 719 of the transcript, when Mr. Kupusovic was being heard,

17    in response to a Prosecution question as to whether certain citizens were

18    killed in May 1992 and whether they fired from the presidency building

19    toward the barracks and the bank, the riverbank, the witness answered that

20    they did fire at the barracks; and in the Defence's opinion, this means

21    that fire was opened from the presidency building, not that fire was

22    returned, which is what the Prosecution would have us believe.  And it is

23    not correct to state in the transcript of Mr. Kupusovic that the tanks

24    came from Lukavica and opened fire on the presidency.

25            In its final brief, the Prosecution is also looking from 54 to 61

Page 21837

 1    at the pattern of sniping and shelling of the areas held by the BH army.

 2    The definition according to the Defence that's adopted by the Prosecution

 3    in order to describe the nature of this case cannot be accepted.  What the

 4    Prosecutor claims, that the international military personnel stationed in

 5    Bosnia also adopted the same meaning as the Prosecution has.   This is to

 6    do with Witness Indic in footnote 69 of the final brief that the sniper

 7    cannot be defined as the Prosecution has defined it.  The Prosecution

 8    claims that it has no consequence, that the term of "sniping" the way they

 9    are treating it is different from the usual military meaning, and this is

10    unacceptable.  First of all, the reason for the existence of snipers in an

11    army is precisely to have specific tasks; and to eliminate snipers on the

12    other side.

13            As a rule, this is done from a longer distance.  And that's why

14    it's important to accept that an important element of sniping is the

15    actual weapon that is fired.  This weapon has to have an optical sight

16    because absolute precision is required.  The Defence further claims that

17    in the final submission, it is unacceptable to say that the SRK soldiers

18    had rifles that had optical sights.  The claim of the Prosecution speaking

19    of a witness that allegedly said that this person had seen a rifle with an

20    optical sight cannot be accepted as proving that SRK units had these

21    rifles.

22            Further on in the submission, 54 to 60, it is not possible to see

23    what the Prosecution's position is regarding the pattern of shelling of

24    town areas because it would be concluded that the sniping was constant.

25    But the -- it is not clear whether the Prosecution believes that the

Page 21838

 1    exchange of fire in any case is sniping.  If this is so, then this

 2    position is thoroughly erroneous, because if the Prosecutor believes that

 3    the SRK soldiers were firing at random on the city and sniping, and that

 4    would be even less acceptable, particularly when there are claims that

 5    criminal offences of murder were committed, or inhumane acts that were not

 6    murder.  Since the Prosecutor himself said that this had to be done

 7    deliberately, with intent, while if we have random shooting, the intent is

 8    excluded.  As the Prosecutor cited yesterday, the sniping incident of case

 9    of are Rasid Dzonko.  The Prosecution wants to show that there was a

10    pattern of shelling.  In order to establish this pattern speaks about the

11    testimony of Witness Mandilovic and Kupusovic.  And in paragraphs 56 and

12    57 is speaking precisely about the statements of the testimonies of the

13    witnesses heard before this Chamber.

14            The Prosecution is also speaking about the testimony of Colonel

15    Cutler and Colonel Mole and Mr. Baal.  By analysing carefully what the

16    witnesses said, the Defence believes that a completely different

17    conclusion can be reached, contrary to the one that the Prosecution wishes

18    to impose.  If Witness Mole says that not a single day passed quietly

19    without shelling, then according to the Defence, it is obvious that combat

20    was ongoing.  And during one period of time, they were more intense; and

21    during another period of time, they were less intense.  But in any case,

22    it can be concluded that the cease-fires that were agreed upon were not

23    respected.  All of these witnesses that I have listed and that the

24    Prosecution mentions and speak about them, they said that there was a

25    daily shooting.  The Defence would like to stress that testimony of these

Page 21839

 1    witnesses and all the other witnesses spoke about deliberate targeting of

 2    witnesses, civilian facilities, for instance, Witness Ashton.  Can that be

 3    a basis for reaching the conclusion that there was indeed deliberate

 4    targeting of civilians?  Because they all form the same conclusions but

 5    they did not describe a single incident where they would explain a

 6    location where this happened, describe a victim or victims, describe the

 7    location where the projectile was fired from.  So that on the basis of all

 8    of this data, one could conclude whether this was correctly concluded or

 9    not.  So these generalised claims of the witnesses that there was shooting

10    in town without the witnesses listing, citing locations where the shells

11    landed, grenades landed, where the projectiles ended up, fired from

12    firearms, are of little assistance to establish facts in order to assess

13    whether there was deliberate targeting of civilians or whether civilians

14    were threatened or at risk because of the violation of principles of

15    distinction of proportionality.

16            The Prosecutor neglecting the fact that Sarajevo is only that part

17    of town which is represented by the old town at Bascarsija, going

18    towards -- west to Alipasino Polje, Dobrinja, while the areas of Zuc, Hum,

19    Pofalici, Vogosca, Ilidza, Lukavica, and Hadzici, the Prosecutor is

20    excluding these areas from the town.  The Defence is mentioning this

21    because the exhibit -- the evidence was shown, and this was also explained

22    in the report of Mr. Radinovic, that the Prosecution erroneously made up a

23    thesis that SRK units were on the dominant high elevations around

24    Sarajevo.

25            The Defence evidence was that the fire from the positions of the

Page 21840

 1    SRK was only opened as responding to fire.  It was only opened because of

 2    firing by the 1st Corps of the BH army.  What Defence has to say is that

 3    the units of the 1st Corps of the BH, they were the ones that from the

 4    very start of the conflict, or immediately after the conflict started,

 5    they were the ones that held all the high positions in Sarajevo, Zuc hill,

 6    Hum, Brijesko Brdo, Sokolje, Mojmilo.  They were even on the slopes of

 7    Trebevic, on the elevations of Debelo Brdo, Mala, and Velika Colina Kapa,

 8    and in the area of Sedam Suma and Grdonj.  I would also like to stress

 9    that the forces of the 1st corps of the BH army in the actual town had the

10    highest towns -- highest buildings in the town which is the executive

11    council, the business premises of UNIS, and Energoinvest.

12            We believe that we have analysed the evidence thoroughly in the

13    final submission and Defence does not wish to repeat itself.

14            JUDGE ORIE:  Ms. Pilipovic.

15            MS. PILIPOVIC: [Interpretation] Yes, Your Honour.

16            JUDGE ORIE:  [Previous translation continues]...words again.  You

17    saw me looking at the clock, if you would find a suitable moment to -- for

18    a break, please indicate so.

19            MS. PILIPOVIC: [Interpretation] Yes, Your Honour.  The Defence

20    just wishes to mention the witnesses mentioned by the Prosecution who

21    spoke about the daily shelling and sniping.  We wish to say that they were

22    not telling the full truth -- the whole truth.  There were -- they gave a

23    direct assessment of the exchange of fire and operations.  If it is true

24    that at some intervals, there were intense shelling, which the Defence

25    does not contest, we would like to point out that these were not acts of

Page 21841

 1    shelling towards the town as this was concluded by the witnesses or

 2    mentioned by the Prosecution.

 3            JUDGE ORIE:  Thank you, Ms. Pilipovic.

 4            We'll adjourn, and we'll resume in 20 minutes, at 10 minutes to

 5    10.00 [sic].

 6                          --- Recess taken at 12.32 p.m.

 7                          --- On resuming at 12.56 p.m.

 8            JUDGE ORIE:  Ms. Pilipovic.

 9            MS. PILIPOVIC: [Interpretation] Thank you, Your Honour.

10            Before the break, we were speaking about the intensity of shelling

11    and the assessing the witness testimony, the witnesses mentioned by the

12    Prosecution's brief.  The Defence would like to say that also, the

13    Prosecution referred to -- in paragraph 59 referred to the testimony of

14    witness Cutler about the intensity of firing.  What we have to bear in

15    mind is that in December there was intense combat ongoing for Otes, and at

16    that time, BH army forces during that period periodically tried to break

17    through the line of defence of the Sarajevo-Romanija Corps.  And their

18    intention was this line should have to be broken towards Ilidza.  The

19    evidence was demonstrated that there was constant combat in the Sarajevo

20    battlefield, so it's a normal conclusion that there was no pattern of

21    sniping or shelling as the Prosecutor wishes to show.  In its final

22    submission, the Prosecution also refers to whether there was direct

23    evidence on the criminal responsibility of General Galic.

24            Now, in paragraphs 82 to 91 of the final brief, the Prosecution is

25    dealing with direct responsibility of General Galic, according to the

Page 21842

 1    provisions under Article 7, Item 1 of the statute.  The position of the

 2    Prosecution is unacceptable for the Defence.  The Prosecution claim that

 3    the Prosecution witnesses expressed contrary testimony to the witnesses of

 4    the Defence.  This was to do with the experienced journalist, Witness AD,

 5    UNPROFOR witnesses, and they say that these are reliable witnesses and

 6    they have to be believed.  As far as witnesses AD and D are concerned --

 7            MR. IERACE:  Mr. President, might I be heard in private session.

 8            JUDGE ORIE:  Yes, we turn into private session.

 9                          [Private session]

10  [redacted]

11  [redacted]

12  [redacted]

13  [redacted]

14  [redacted]

15  [redacted]

16  [redacted]

17  [redacted]

18  [redacted]

19  [redacted]

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23  [redacted]

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 2  [redacted]

 3  [redacted]

 4  [redacted]

 5  [redacted]

 6  [redacted]

 7  [redacted]

 8  [redacted]

 9  [redacted]

10  [redacted]

11  [redacted]

12  [redacted]

13  [redacted]

14                          [Open session]

15            JUDGE ORIE:  Ms. Pilipovic, we are in open session.

16            MS. PILIPOVIC: [Interpretation] Yes, thank you, Your Honour.

17            When the Prosecution refers to the military personnel of the UN,

18    we would first of all like to point out that the Prosecution didn't

19    mention which witnesses, which UN members, spoke about the facts referred

20    to by the Prosecution about the information that they had - and the

21    Prosecution mentions it in paragraphs 82 and 91 - about the information

22    they had about trained snipers, about sniper rifles or sniper nests,

23    sniper positions in the SRK.  The Defence claims that individual

24    witnesses, UN members, for example, such as General Razek or Witness WV,

25    were not telling the truth, especially in the parts of their testimony

Page 21845

 1    that they gave before the Trial Chamber because the statements given by

 2    those witnesses contradict the statements that the witnesses gave to

 3    investigators from the OTP, the Office of the Prosecution.

 4            It is the Defence's position that not a single witness had

 5    information -- had direct information about how the members of the SRK

 6    were armed, nor did anyone confirm that there were snipers with

 7    professional sniper rifles within the Sarajevo-Romanija Corps.  The

 8    allegation of the Prosecution that as far as the professional sniping

 9    rifle is concerned, that it's not necessary for such a rifle to have an

10    optical sight, in the Defence's opinion this position is unacceptable.

11    According to the stories that there were -- that there was sniping

12    activity, as alleged by the Prosecution, it's not possible to establish

13    from where they took action, who acted, and against whom they acted.

14            The Defence would like to point out, and you, Your Honour, also

15    mentioned this in response to the Defence's motion for acquittal, when you

16    established that in three cases the Prosecution did not provide evidence

17    on the basis of which one could come to the conclusion and to establish

18    beyond any reasonable doubt that civilians were deliberately targeted from

19    the positions of the SRK units.  And this is why the Defence is again

20    repeating that the Prosecution cannot claim with regard to any single

21    incident - and we don't even know whether such incidents occurred - they

22    can't claim that such incidents with the intention of targeting civilians

23    and that the SRK or members of the SRK acted with such intent.

24            Now, the Defence would also like to add that in addition to the

25    fact that General Galic, after having assumed his post, managed to an

Page 21846

 1    extent to ensure that all the units in the zone of the SRK were under the

 2    command of the SRK, in spite of the fact that he managed -- in addition to

 3    the fact that he managed to do this, there is the fact that -- it is a

 4    fact that control was effectively established.  However, perhaps he did

 5    not succeed in fully establishing such control because given the size of

 6    the front, it was possible for individuals to act outside the practical

 7    and theoretical control of the SRK command.  And thus, the Prosecution

 8    with regard to the direct responsibility of General Galic has not provided

 9    sufficient evidence that would bear out such criminal responsibility of

10    the accused.

11            The Prosecution also claims that on the basis of protests that

12    were personally submitted to General Galic, either through liaison

13    officers or through officers at other positions, together with evidence,

14    as the Prosecution says, or as admitted or as admitted by other

15    subordinates, it claims that operations were continued in spite of the

16    protest that had been lodged.  We would like to point out - and this is

17    something that we said in our final trial brief - we would like to point

18    out that General Galic never personally received a protest and he didn't

19    receive any protests through subordinate officers either with regard to

20    any deliberate sniping of civilians.  Not a single Prosecution witness

21    supported such claims made by the Prosecution.  And with regard to the

22    Witness General Razek and Witness VV, with regard to their statements that

23    General Galic said that the Muslims had to be destroyed, these allegations

24    are incorrect.

25            JUDGE ORIE:  Mr. Ierace.

Page 21847

 1            MR. IERACE:  Mr. President, it's the same complaint as made

 2    previously in relation to a different witness, the same reason.

 3            JUDGE ORIE:  Yes.

 4            MS. PILIPOVIC: [Interpretation] Yes, Your Honour, but I think

 5    that we spoke about this witness yesterday, and that we weren't in

 6    private session.  I think that the Prosecution also referred to the

 7    testimony of this witness.  But I'll --

 8            JUDGE ORIE:  It's not clear in my mind.  But even if that would be

 9    the case, then the Prosecution would deserve to be reprimanded, if that

10    would be the case, but that would not entitle the Defence to continue

11    that way.

12            MS. PILIPOVIC: [Interpretation] Yes, Your Honour.  Very well.

13            JUDGE ORIE:  You would prefer now to go in private session for a

14    while?

15            MS. PILIPOVIC: [Interpretation] At this moment, I won't refer to

16    him within that context.  I won't mention the initials.  I will inform the

17    Trial Chamber when I reach the subject.

18            The Defence would like to point out that General Galic did not

19    receive a single protest from anyone, and I would like to repeat this yet

20    again, not a single protest regarding particular sniping incidents.  And

21    this means that there was no possibility of conducting any sort of

22    investigation into a given incident that occurred in the territory under

23    the control of the enemy side.

24            We would also like to point out that the BH army organs weren't

25    informed about the incidents of the alleged snipers, of the alleged sniper

Page 21848

 1    activity.  And if they weren't informed of such events - and this has been

 2    borne out by the evidence - then the UN representatives weren't informed

 3    of them either.  Not a single witness who was a UN member testified about

 4    being aware of any kind of protest being sent to the SRK command and that

 5    concerned individual sniping events.  I have to point out that such

 6    questions were put to all the witnesses by the Defence, to all the

 7    UNPROFOR members who testified before this Trial Chamber.

 8            The Defence would also like to remind the Trial Chamber that the

 9    evidence shows that from the corps commander and right down to the lowest

10    command of military units within the SRK - so from brigade commanders,

11    battalion commanders, company platoon commanders, detachment commanders -

12    we're referring to this chain of command, and we are claiming that each of

13    these commanders at each level was obliged to inform his superiors, and

14    this means that soldiers, first of all, had to inform the commanders of

15    detachments, and then the commander of detachment would have to inform the

16    commander of platoon, and the information would have to be relayed further

17    up the scale in that manner.  What we're trying to say is that the corps

18    commander cannot establish control of each and every soldier.  Even less

19    is it possible for each commander in the chain of command to be aware of

20    what a given soldier may have done, of what sort of acts a certain soldier

21    may have committed at the front line.  If we assume that he was involved

22    in sniping, he will never admit to his commander that he killed civilians,

23    and all witnesses for the Defence who were soldiers at the front line have

24    confirmed that according to the orders they received it was strictly

25    forbidden for them to target civilians.  Even if a soldier fired at a

Page 21849

 1    civilian, he would remain silent about that fact, in spite of the fact

 2    that he may not even have been in a position to know whether he had hit

 3    someone on the other side.  If he was sure he had hit someone, would he

 4    inform someone of this?  And if there was an order according to which

 5    civilians should not be targeted, then it would be clear to such a soldier

 6    that he would be punished.  This is why such soldiers remain silent, and

 7    no one within the chain of command, and especially not on the sixth level

 8    of command, no one was informed of such an incident and could not even

 9    have assumed that such acts occurred.

10            The evidence presented by the Defence has proved that in cases

11    of -- some cases of shelling, General Galic ordered investigations to be

12    carried out.  And DP35, the Defence witness, confirmed that the

13    investigations carried out showed that SRK units in those particular cases

14    were not involved.  They were not involved in those cases.

15            When the Prosecution referred to the evidence and the testimony of

16    General Rose according to which not only generals but also politicians in

17    military discussions doesn't have any importance, and this can only show

18    that to a certain extent, politics got involved in the system of command.

19    And General Radovan Radinovic has spoken about the difficulties that Galic

20    had in establishing SRK command.  He spoke about the -- he mentioned this

21    in his written statement.  We would like to point out that the Prosecution

22    has not proven that General Galic ordered sniper action of any kind

23    directed against civilians.  The Prosecution hasn't proved that any of his

24    acts encouraged or assisted attacks against such civilians.  They didn't

25    prove that he was informed about a single incident.  And in the Defence's

Page 21850

 1    opinion, the way in which General Galic behaved - who as we have already

 2    said is a highly moral person and soldier - there were no omissions or

 3    actions for which he would have to bear direct criminal responsibility.

 4    The allegations of the Prosecution set forth in paragraph 90, according to

 5    which the direct criminal responsibility is proven, has no foundation.  As

 6    we have just said, it hasn't been proved that General Galic participated

 7    in any way in any event in which snipers deliberately targeted civilians.

 8            The Prosecution in its final trial brief has also mentioned the

 9    command responsibility of General Galic pursuant to Article 7(3) of the

10    Statute.  In its final trial brief, the Defence has analysed each

11    individual incident, both of sniping and of shelling, in detail.  And in

12    our final trial brief, we have indicated that there is no evidence that

13    could be used to establish the guilt of any member of the SRK because

14    quite simply there was no evidence to prove that in any of the scheduled

15    incidents referred to by the Prosecution, in none of that evidence was it

16    established that civilians were deliberately targeted or that action was

17    taken that violated the principle of distinction and proportionality.

18            In paragraph 92 of its final trial brief, the Prosecution has

19    mixed up certain ideas, either intentionally or unintentionally.  First of

20    all, there was no evidence that would show that any organisation of the

21    SRK, there was a high level of command and control over subordinate

22    units.  But even if there were units or individuals who were out of

23    control, the Defence didn't present evidence that such individuals would

24    have targeted civilians and not individuals under the command of the SRK.

25    The Prosecution is claiming that the witness -- the witnesses for the

Page 21851

 1    Defence have established the chain of command.  This is not in dispute.

 2    The Defence has proved this through witnesses just to help the Trial

 3    Chamber to see that the level of command that the lowest units had right

 4    up to the command of the SRK.  And to show that each commander was held

 5    responsible for the military tasks that that commander performed.  This

 6    was not for the Defence to prove, that there were elements that did not

 7    fit into that chain of command.  On the contrary, the Defence tried to

 8    provide evidence that would prove that General Galic took all measures for

 9    the SRK units to respect that command after he had assumed command of

10    these units.

11            General Galic, as we said in our final trial brief, he succeeded

12    in doing this to a great extent with respect to individual paramilitary

13    formations that appeared in the zone under the control of the SRK.  There

14    were many cases and the Defence expert General Radovan Radinovic has also

15    spoken about this.  And in the documents disclosed, documents that the

16    Defence hasn't been able to present to the Trial Chamber, not all of

17    them, on that basis, it's possible to see to what extent General Galic

18    strove to place all units under the command of the SRK.  And it has also

19    shown how difficult it is.  Certain units were even disbanded, some

20    individuals were arrested and criminally prosecuted, too.  When General

21    Galic assumed the position of commander, it doesn't mean that there

22    weren't groups or individuals who functioned outside the chain of

23    command.  We would in particular like to point out that the front was 237

24    kilometres long and had a surface of over 2.000 square kilometres.

25    Naturally, the Defence did not try to prove that such groups or

Page 21852

 1    individuals from such groups targeted civilians, because it wasn't

 2    necessary since the Prosecution only provided evidence for the so-called

 3    scheduled incidents.  So the Defence concentrated on obtaining evidence,

 4    on presenting evidence to contest the allegations made by the Prosecution.

 5            The Defence would like to point out, and this is borne out by the

 6    evidence, that not a single event were civilians deliberately targeted

 7    from the divisions of the SRK.  Evidence hasn't shown where the

 8    projectiles came from, if we are referring to firearms, or where the

 9    shells came from if we are talking about mortars.  And it is quite

10    clear that it would be pointless to try and prove all the elements

11    of -- the criminal and legal responsibility of General Galic which should

12    be supported if he is to be held accountable on the basis of command

13    responsibility for the acts committed by his subordinates.  In other

14    words, we want to show that if in the incidents referred to, it hasn't

15    been shown that there were incidents of shelling or sniping.  If it hasn't

16    been shown that a single individual from the SRK participated in such acts

17    and if the deliberate targeting of civilians hasn't been proven in the

18    case of the incidents cited, then likewise, the illegal unlawful conduct

19    of someone from the SRK hasn't been proven.  And thus, the criminal

20    responsibility of General Galic for such acts has not been proven either.

21            The Prosecution in its final trial brief admits that it hasn't

22    been proven beyond any reasonable doubt that the superior command, the

23    main staff, ordered the corps command to take any kind of action against

24    civilians.  And thus, it is obvious that we can't talk about the planning

25    of such actions.  Even if individual incidents had been proven, but they

Page 21853

 1    haven't been proven, there should be reports from lower commands about

 2    these incidents, reports to the brigade command should have information

 3    about individual incidents in which there was unlawful targeting of

 4    civilians so that in this manner, General Galic could be informed of the

 5    event, if any.

 6            The exhibits of the Defence attached to the statement -- to the

 7    report, rather, of Mr. Radinovic, and exhibits of the Defence that were

 8    shown through the witness Milorad Bukva, DP34, DP14, and all the other

 9    documents of the SRK command that the Defence disclosed to the Prosecutor,

10    and as I said, we are not in a position to tender each and every single

11    one of these documents as evidence, they clearly show that not a single

12    report to the command of the brigades had any data regarding possible

13    incidents that occurred unlawfully.  And this demonstrates that General

14    Galic who received such reports was not informed about any incident that

15    would require him to launch an investigation regarding this incident.  The

16    Defence claims that General Galic always ordered launching of an

17    investigation regarding the incidents he was informed about.

18            Now, regarding the exhibits of the Defence attached to the report

19    of Dr. Radinovic, these are 260, 254, D255, and D248, the results of the

20    investigations were that there were no omissions in the way the SRK units

21    operated.  The Defence has already pointed out that the Prosecution

22    witnesses who were members of UNPROFOR -- had been members of UNPROFOR did

23    not establish the existence of any protests regarding individual

24    incidents, of scheduled incidents, of sniping.  The Defence has already

25    spoken about this, and this is included in the final brief, and we will

Page 21854

 1    speak more later about the shelling incidents.

 2            Specifically, about the claims of the Prosecution there were many

 3    incidents, sniping or shelling incidents, that were not included in the

 4    annexes of the indictment 1 and 2.  This is a claim that is groundless,

 5    according to the Defence, and it cannot even be discussed, particularly

 6    no evidence can be shown in relation to such events.

 7            The Prosecutor claims that General Galic ordered attacks against

 8    civilians.  And he uses circumstantial evidence for this which is

 9    unacceptable according to the Defence.  We have said -- we stated that

10    General Galic, that it has not proven that General Galic had ordered any

11    kind of attacks against civilians.  It has not been proven that General

12    Galic knew or had reason to know that his subordinates had carried out

13    such acts.  That would be considered as criminal offences under the

14    Article 2(2)(v) of the Statute.  As the Defence witnesses claim, General

15    Galic stated explicitly that civilians should not be targeted, and he had

16    no specific information that anything like that had occurred except in the

17    already described incidents of shelling when an investigation was launched

18    and the Defence had cited which Defence exhibits relate to this which

19    point to the existence of an investigation in relation to some information

20    that there was some shelling.  And the investigations were launched by

21    General Galic.

22            The Defence further would like to point that if General Galic had

23    not known that some incidents had happened, then he couldn't have any

24    measures undertaken to punish anyone for these incidents or to prevent the

25    repetition of such incidents, although we reiterate, and this was stressed

Page 21855

 1    by the Defence witnesses, there were orders issued constantly about the

 2    protection -- about the respective Geneva Conventions not to target

 3    civilians, and this was also mentioned by DP 5, DP 11, and other witnesses

 4    of the Defence who were soldiers on the front line.

 5            Defence would also like to stress something that we do not

 6    contest, that the way that the SRK was involved in the conflict against

 7    the BH army.  There was a high degree of organisation that was reached in

 8    the SRK.  But Defence does not understand why this is so important for the

 9    Prosecution regarding the communication.  When we are speaking about

10    specific incidents, we know that General Galic did not have such

11    information.  And the Prosecution referring to General -- to

12    Lieutenant-Colonel van Baal, and this is in paragraph 100 of the final

13    brief, and 101 regarding Colonel Mole or paragraph 102 or 103 regarding

14    Colonel Gardemeister.  They are irrelevant because it is not confirmed

15    that General Galic had any information about any incidents.  Also, the

16    Defence is also aware that the Prosecution is also speaking about the

17    testimony of Witness Tucker regarding the system of communications, the

18    general system of communications which mentions that General Mladic would

19    have to speak to someone in order to find something out, and that was

20    happening quickly.  And the Defence asked the question:  What is the

21    connection between General Galic with the communication system that

22    General Galic had with his subordinates?  Because if an army is well

23    organised, that General Mladic primarily was supposed to receive

24    information from General Galic.  Under paragraph 106 of the final brief,

25    the Prosecutor says that Witness Indic said that each brigade had their

Page 21856

 1    own artillery group, and that the use of the artillery was within the

 2    remit of the brigade command.  All the orders as a principle was issued by

 3    the brigade commander.  Such an order would then be logged in the report

 4    which is submitted to the corps command.

 5            The Defence do not contest such statements of Witness Indic

 6    because the chain of command precisely was as Witness Indic described it.

 7    In paragraph 105, the Prosecution relies on the testimony of Witness

 8    Carswell.  But before I start analysing the paragraph 105, we would like

 9    to point out that in paragraph 106 regarding the testimony of Witness

10    Indic, in fact, it is the Defence's claim which is supported here that

11    General Galic did not issue orders to units that were part of the brigade

12    but he issued orders, commands, written orders to the brigade commanders,

13    and they then later in their commands processed them and forwarded their

14    own orders to commanders of other units, to company commanders, their own

15    orders.  So -- and this is what the Defence wish to say regarding

16    paragraph 106 of the Prosecution final brief.

17            We have said, the Defence has said that paragraph 105 of the

18    Prosecution final brief, the Prosecution spoke of the testimony of

19    Witness Carswell about how the artillery command was carried out and how

20    lists and plans of targets were made.  The Defence can accept that there

21    was a scheme, there was a plan and lists of targets.  But we would like to

22    point out immediately that these schemes, plans, target lists were made up

23    only in relation to legitimate military targets.  Only if among the lists,

24    there were also facilities that before the war had been civilian

25    facilities and which before the conflict broke out had the status of

Page 21857

 1    civilian buildings, civilian facilities, and we have seen from the

 2    evidence that the Defence offered to the Trial Chamber, we know that we

 3    have seen in such buildings that had the status of civilian buildings,

 4    there were troops that were stationed, equipment, ammunition, and other

 5    items necessary for military.  So these buildings would be executive

 6    council, Hrasnica, Zenica, Vasa Miskin factory, and so on.  These

 7    buildings were mentioned many times in this courtroom.  So the Prosecutor

 8    never proved the unlawful nature of the SRK units' acts, nor did the

 9    Prosecutor prove that General Galic ever issued any unlawful orders.

10            It was not proved that General Galic -- it was not proved that

11    there were such firing and that General Galic could have known about

12    them.  And if he hadn't done anything to prevent such behaviour, if he

13    hadn't known but found out later and did not do anything to punish those

14    who had carried out illegitimate orders.  And therefore, there is no

15    criminal legal responsibility regarding General Galic.

16            Now, the Defence would like to say a few words about the claims of

17    the Prosecution that General Galic's subordinates had targeted civilians.

18    This is dealt with in paragraphs 107 to 128 of the final brief of the

19    Prosecution.  Now, the Defence would like to speak about the testimony

20    about the witness who was protected.  I would ask if we can go into closed

21    session.

22            JUDGE ORIE:  We'll turn into private session, I think, would be

23    sufficient, if you're just speaking about him.

24                          [Private session]

25  [redacted]

Page 21858

 1  [redacted]

 2  [redacted]

 3  [redacted]

 4  [redacted]

 5  [redacted]

 6  [redacted]

 7  [redacted]

 8  [redacted]

 9  [redacted]

10  [redacted]

11  [redacted]

12  [redacted]

13  [redacted]

14  [redacted]

15  [redacted]

16  [redacted]

17  [redacted]

18  [redacted]

19  [redacted]

20  [redacted]

21  [redacted]

22  [redacted]

23  [redacted]

24  [redacted]

25                          [Open session]

Page 21859

 1            JUDGE ORIE:  We are in open session.  Please proceed.

 2            MS. PILIPOVIC: [Interpretation] Thank you, Your Honour.  Thank

 3    you.

 4            If the position of the Prosecution is that through his testimony

 5    it has been proven that the witness was speaking about the snipers firing

 6    at civilians, the Defence would like to state here that this position is

 7    unacceptable.  First of all, this witness said that there were units --

 8    there were snipers in other units.  He didn't mention which units these

 9    were.  Also, this part of the testimony of Witness D is contradictory with

10    his more general testimony.  He said that occasionally, snipers joined his

11    unit, and he said he very frequently heard firing, and he also said that

12    he frequently spoke to them.  So what does that mean, "very frequently"?

13    When he said that they occasionally came, also, if it's very frequently,

14    then that would mean that he frequently spoke to them or he occasionally

15    spoke to them.

16            The witness also said that during those rare moments, they told

17    him that they had fired into an area where there were civilians, but he

18    had also said -- or he said that he wasn't sure whether he had actually

19    hit anyone.  Now, whether they had hit anyone, that is not proof that they

20    had actually hit somebody; occasional arrival of snipers who would come

21    according to the Defence.  That means they would appear only when they

22    were needed to target their snipers on the other side, those that were

23    located on Holiday Inn hotel.  And now, when the witness mentioned M76

24    rifle that the witness described, the Defence would like to state that

25    when we look at witness testimony of DP30, certainly the one who knows

Page 21860

 1    about the equipment and weapons, he would know whether this equipment was

 2    in existence in the Sarajevo-Romanija Corps.  Also, we will speak about

 3    the Witness D whose testimony states that he often saw mortars fire or

 4    shell Radnicka Street.  And he said that they were frequently intoxicated,

 5    they were not able to fire.  This is contradictory to Witness Carswell,

 6    Gardemeister, Prosecution witnesses, in relation to 103, 104 paragraphs in

 7    the Prosecution final brief who have stated that the SRK members who were

 8    on their firing positions were very efficient and very professional.

 9            So what this witness said, and the Prosecution wishes to admit his

10    testimony, that snipers had confirmed to him that they were firing at

11    people on crossroads where there were containers, that he had seen this,

12    this cannot be taken as truth, that this was targeting civilians because

13    this was done in order to protect the soldiers in those parts of the city

14    where the demarcation lines were very close.

15            Your Honours, bearing in mind the time...

16            JUDGE ORIE:  You'd find this a suitable to --

17            MS. PILIPOVIC: [Interpretation] I will continue tomorrow.

18            JUDGE ORIE:  Yes.  In a very global way, I calculate the time

19    still available, that would be 2 and a half hours for the Defence tomorrow

20    approximately.  I'll check with Madam Registrar.

21            MS. PILIPOVIC: [Interpretation] Thank you, Your Honour.

22            JUDGE ORIE:  Yes.  We'll then adjourn until tomorrow morning,

23    9.00, same courtroom.

24                          --- Whereupon the proceedings adjourned at

25                          1.45 p.m., to be reconvened on Thursday, the

Page 21861

 1                          8th of May, 2003, at 9.00 a.m.