Table of contents:
3. The perpetrator directed an attack.
3.1. Attack directly aimed at the civilian population or individual civilians
P.1. Evidence with regard to the identity of the perpetrator.
P.2. P.1. Evidence with regard to the source of the attack.
P.2.1. Evidence with regard to direction of attack.
P.2.2. Evidence of military presence in a particular area from which the attack was directed.
P.3. Evidence with regard to the identity of the perpetrator.
P.4. Evidence with regard to the source of the attack.
P.4.1. Evidence with regard to direction of attack.
P.4.2. Evidence of military presence in a particular area from which the attack was directed.
P.5. Evidence with regard to the identity of the perpetrator.
P.6. Evidence with regard to the source of the attack.
P.6.1. Evidence with regard to direction of attack.
P.6.2. Evidence of military presence in a particular area from which the attack was directed.
P.7. Evidence with regard to the identity of the perpetrator.
P.8. Evidence with regard to the source of the attack.
P.8.1. Evidence with regard to direction of attack.
P.8.2. Evidence of military presence in a particular area from which the attack was directed.
P.9. Evidence with regard to the identity of the perpetrator.
P.10. Evidence with regard to the source of the attack.
P.10.1. Evidence with regard to direction of attack.
P.10.2. Evidence of military presence in a particular area from which the attack was directed.
P.11. Evidence with regard to the identity of the perpetrator.
P.12. Evidence with regard to the source of the attack.
P.12.1. Evidence with regard to direction of attack.
P.12.2. Evidence of military presence in a particular area from which the attack was directed.
P.13. Evidence with regard to the identity of the perpetrator.
P.14. Evidence with regard to the source of the attack.
P.14.1. Evidence with regard to direction of attack.
P.14.2. Evidence of military presence in a particular area from which the attack was directed.
P.15. Evidence with regard to the identity of the perpetrator.
P.16. Evidence with regard to the source of the attack.
P.16.1. Evidence with regard to direction of attack.
P.16.2. Evidence of military presence in a particular area from which the attack was directed.
Element:
3. The perpetrator directed an attack.
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 282:
"Pursuant to Article 49(1) of Additional Protocol I to the Geneva Conventions "attacks" are acts of violence against the adversary, whether in offence or in defence. According to the ICRC Commentary an attack is understood as a "combat action" and refers to the use of armed force to carry out a military operation at the beginning or during the course of armed conflict.903"
"903. ICRC Commentary on the Additional Protocols, p 603. See also Kordic Appeals Judgement, para 47."
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement (AC), 17 December 2004, para. 47:
"The term attack is defined in Article 49 of Additional Protocol I as "acts of violence against the adversary, whether in offence or in defence".49 Therefore, in determining whether an unlawful attack on civilians occurred, the issue of who first made use of force is irrelevant."
"49. This definition applies to the crime of unlawful attacks against civilian objects as well."
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Decision on Defence Motion Requesting Judgement of Acquittal Pursuant to Rule 98 Bis (TC), 21 June 2004, paras. 49-50:
"49. The Accused is charged with participation in the crime of attacks on civilians, a violation of the laws or customs of war, as recognised by Article 51 of Additional Protocol I and Article 13 of Additional Protocol II. The Prosecution alleges that, even assuming that military objectives were present in the Old Town, in any event, civilian losses in human lives and property caused by the attack were excessive in relation to the concrete and direct military advantage anticipated.70
50. Pursuant to the Tribunals case-law, the crime of attacks on civilians is, as to the actus reus, an attack launched against a civilian population that caused deaths and/or serious bodily injury within that population,71 which, as to the mens rea, must have been conducted "intentionally in the knowledge, or when it was impossible not to know, that civilians were being targeted ".72 The presence of certain non- civilians among the targeted population does not change the character of that population. It must be of a "predominantly civilian nature".73 The following attacks are, among others, prohibited by Article 51: attacks the object of which is "the civilian population as such, as well as individual civilians" (§ 2); indiscriminate attacks, such as those which "are of a nature to strike military objectives and civilians or civilian objects without distinction" (§ 4) and those which "may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated" (§ 5 (b))."
"70. The Prosecution opening statement, T. 263-7.
71. See Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-T, Judgement, 3 March 2000 (hereinafter "Blaskic Trial Judgment"), para. 180, Prosecutor v. Dario Kordic and Mario Cerkez, Case No. IT-95-14/2-T, Judgement, 26 February 2001 (hereinafter "Kordic Trial Judgement"), para. 328 and Prosecutor v. Stanislav Galic, Case No. IT-98-29-T, Judgement, 5 December 2003 (hereinafter "Galic Trial Judgment"), para. 62.
72. See Blaskic Trial Judgement, para. 180. In the Blaskic and Kordic Trial Judgements an additional condition is mentioned, that the attack was launched not through military necessity (Ibid.). The Trial Chamber in the Galic case observed, however, that Article 51 (2) of Additional Protocol I states in clear language that civilians and the civilian population as such should not be the object of attack and does not mention any exceptions, in particular that provision does not contemplate derogating from that rule by invoking military necessity (Ibid., para. 44).
73. See Prosecutor v. Dusko Tadic, Case No. IT-94-1-T, Judgement, 7 May 1997 (hereinafter "Tadic Trial Judgement"), para. 638 and Blaskic Trial Judgement, para. 214."
Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, para. 52:
""Attack" is defined in Article 49 of Additional Protocol I as "acts of violence against the adversary, whether in offence or in defence." The Commentary makes the point that "attack" is a technical term relating to a specific military operation limited in time and place, and covers attacks carried out both in offence and in defence.97 The jurisprudence of the Tribunal has defined "attack" as a course of conduct involving the commission of acts of violence.98"
"97. ICRC Commentary, para. 4783.
98. Krnojelac Trial Judgment, para. 54; Kunarac Trial Judgment, para. 415."
3.1.A ttack directly aimed at the civilian population or individual civilians
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Decision (TC), 21 June 2004, paras. 49-50:
"49. The Accused is charged with participation in the crime of attacks on civilians, a violation of the laws or customs of war, as recognised by Article 51 of Additional Protocol I and Article 13 of Additional Protocol II. The Prosecution alleges that, even assuming that military objectives were present in the Old Town, in any event, civilian losses in human lives and property caused by the attack were excessive in relation to the concrete and direct military advantage anticipated.70
50. Pursuant to the Tribunals case-law, the crime of attacks on civilians is, as to the actus reus, an attack launched against a civilian population that caused deaths and/or serious bodily injury within that population,71 which, as to the mens rea, must have been conducted "intentionally in the knowledge, or when it was impossible not to know, that civilians were being targeted ".72 The presence of certain non- civilians among the targeted population does not change the character of that population. It must be of a "predominantly civilian nature".73 The following attacks are, among others, prohibited by Article 51: attacks the object of which is "the civilian population as such, as well as individual civilians" (§ 2); indiscriminate attacks, such as those which "are of a nature to strike military objectives and civilians or civilian objects without distinction" (§ 4) and those which "may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated" (§ 5 (b))."
"70. The Prosecution opening statement, T. 263-7.
71. See Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-T, Judgement, 3 March 2000 (hereinafter "Blaskic Trial Judgment"), para. 180, Prosecutor v. Dario Kordic and Mario Cerkez, Case No. IT-95-14/2-T, Judgement, 26 February 2001 (hereinafter "Kordic Trial Judgement"), para. 328 and Prosecutor v. Stanislav Galic, Case No. IT-98-29-T, Judgement, 5 December 2003 (hereinafter "Galic Trial Judgment"), para. 62.
72. See Blaskic Trial Judgement, para. 180. In the Blaskic and Kordic Trial Judgements an additional condition is mentioned, that the attack was launched not through military necessity (Ibid.). The Trial Chamber in the Galic case observed, however, that Article 51 (2) of Additional Protocol I states in clear language that civilians and the civilian population as such should not be the object of attack and does not mention any exceptions, in particular that provision does not contemplate derogating from that rule by invoking military necessity (Ibid., para. 44).
73. See Prosecutor v. Dusko Tadic, Case No. IT-94-1-T, Judgement, 7 May 1997 (hereinafter "Tadic Trial Judgement"), para. 638 and Blaskic Trial Judgement, para. 214."
ICRC Commentay on the Additional Protocol I, para. 3477:
"Sub-paragraph (b) [art. 85(3)(b)]
3477 This sub-paragraph is based on the same provisions as the preceding subparagraph, and in addition on Article 52 (General protection of civilian objects), which defines and generally protects civilian objects. The attacks concerned here are not those directly aimed at the civilian population or individual civilians, but attacks affecting the incidentally; "indiscriminate attacks" are defined and prohibited by Article 51 (Protection of the civilian population), paragraphs 4 and 5."
Prosecutor v. Stanislav Galic, Case No. IT-98-29-A, Judgement (AC), 30 November 2006, para. 132:
P.1. Evidence with regard to the identity of the perpetrator.
A.Legal source/authority and evidence:
The Prosecutor v. Momcilo Perisic, Case No. IT-04-81, Judgement (TC), 6 September 2011, para. 492:
492. The Trial Chamber finds beyond a reasonable doubt that on 23 November 1994 at around 16:00 hours, Afeza Karacic and Sabina Sabanic were each deliberately wounded on the right shoulder when the tram they were travelling on came under fire on Zmaja od Bosne Street, between the Technical School and Marshal Tito Barracks. The Trial Chamber also finds that Afeza Karacic and Sabina Sabanic were civilians not taking part in hostilities. The sniping fire came from the direction of the Metalka building to the south of the Miljacka River, which was under the control of VRS forces. The shot was fired by a member of the VRS.
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 284:
"284. The Chamber has already found that on 6 December 1991 there was an attack launched by the JNA forces against the Old Town of Dubrovnik.909 It is also the finding of the Chamber, as recorded earlier, that there were no military objectives within the Old Town and the attack was not launched or maintained in the belief that there were.910"
"909. See supra, paras 99-119 ; 121-145.
910. See supra, paras 193- 194."
P.2. P.1. Evidence with regard to the source of the attack.
P.2.1. Evidence with regard to direction of attack.
A.Legal source/authority and evidence:
The Prosecutor v. Momcilo Perisic, Case No. IT-04-81, Judgement (TC), 6 September 2011, para 357, 403, 549:
357. The Trial Chamber finds beyond a reasonable doubt that on 5 February 1994, a 120 mm mortar shell exploded in the Markale market killing at least 60 persons and wounding over 140 others. A cross-checking of the information contained in the list of people wounded that day in the Stari Grad area of Sarajevo with the information stemming from the lists of people admitted to local hospitals, including the exact time of admission and age of patients, allows for a finding that at least 45 people killed and 82 people wounded in the 5 February 1994 incident were civilians not taking part in hostilities. In reaching this finding, the Trial Chamber has also considered the location and the function played by the Markale market as a civilian public place.
403. The Trial Chamber finds beyond a reasonable doubt that on 18 June 1995 at about 11:40 hours, a 120mm mortar shell exploded at the Simon Bolivar School in Dobrinja, killing 7 and injuring 12 individuals.
549. In sum, the Trial Chamber is satisfied that the evidence presented on the siege of Sarajevo shows beyond a reasonable doubt that from September 1992 to November 1995, the SRK launched a campaign against the civilian population of Sarajevo characterised by a widespread and systematic shelling and sniping which resulted in the killings of hundreds of civilians and the wounding of thousands of others.
The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Case No. ICC - 01/04-01/07, Decision on confirmation of charges (PTC), 30 September 2008, para. 275, 277, 279, 281:
275. In the view of the Chamber, and as shown below, there is sufficient evidence to establish substantial grounds to believe that even if the attack launched on 24 February 2003 against the village of Bogoro was intended to target a military objective within the meaning of articles 51 and 52 AP I - the UPC military camp placed in the centre of the Bogoro village - it was also intended to target the civilian population or individual civilians not taking direct part in the hostilities who lived within the village of Bogoro as a way to secure control over the village and to be a reprisal against the Hema population there. It is therefore the view of the Chamber that the evidence tendered by the Prosecution is sufficient to establish substantial grounds to believe that, on 24 February 2003, FNI/FRPI combatants intentionally directed an attack on the civilian population of the village of Bogoro and that the object of the attack was the civilian population as such and those civilians not taking direct part in the hostilities.
277. The Chamber observes that a military camp occupied by UPC military personnel was in the centre of the village of Bogoro, where, according to the evidence, approximately 150 UPC soldiers were based. However, the evidence shows that the attack was not planned, executed, and directed solely against this military target but directed principally against the entire civilian population of the village. In the view of the Chamber, the evidence clearly demonstrates that the killing and/or displacement of the civilian population, together with the destruction of civilian property, was the strategy the perpetrators chose to secure control of the village once it had been seized.
279. At the time of the first attack in 2001, there was no military camp in the village, and only a few APC soldiers were present. In the view of the Chamber, this fact is relevant because it corroborates the finding that the attacks on the village of Bogoro were not aimed at military targets but at the wilful killing and/or expulsion of the Hema population, the destruction of the village, and the consequent Lendu/Ngiti assumption of control over the village.
281. The evidence also provides substantial grounds to believe that the intention of the FNI/FRPI combatants was that the civilian population and also the individual civilians not taking direct part in the 24 February 2003 attack would be the first target; that the object of the attack was the entire village and not just the military camp; and that the roads to and from the village were blocked by the attackers in order to kill any civilians attempting to flee. The evidence also shows that unarmed civilians, including women and small children, were attacked or burned alive inside their homes.
Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, paras. 257, 264, 270, 454, 466-491, 516, 535, 554:
"257. Considering the location of the tram when it was hit and that it was impacted on the left-hand side in the direction it was travelling, the fact that there was an unobstructed line of sight between the site of the event and the area of the Jewish Cemetery under the SRK control, the approximate distance between these two areas, lead the Trial Chamber to find that the only reasonable conclusion is that the shot which struck the tram was fired from this area held by the SRK."
"264. From the orientation of the bus and of the bullet marks, Ashton concluded that the gunfire originated from the area above the sports stadium in Grbavica.666"
"666. Ashton, T. 1384, 1386. The witness marked direction of fire on a map (P 3645)."
"270. The Trial Chamber considers that the absence of more detailed medical documentation or technical information on the point of entry of the bullet into the bodies of the victims is not crucial for determining the source of fire. Witness J, a police officer from the Novo Sarajevo Public Security Station who conducted an on-site investigation of the event,699 concluded that the shot had been fired from the SRK positions on Ozrenska Street.700 He based his conclusion not only on the common knowledge that snipers operated in that area,701 but also on the fact that the police was unable to immediately access the site of the incident because of on-going shooting from those positions.702 Nafa Taric recalled speaking to five people at the hospital where she was taken who had been injured by sniper fire originating in the area of Ozrenska Street within an hour of the incident in which she and her daughter were wounded.703 DP10 and DP16 testified that the site of the incident was not fully visible from SRK positions in Ozrenska Street.704 However, visual evidence presented to the Trial Chamber demonstrates that there was an unobstructed line of sight from SRK positions on Hrasno Brdo to the location of the incident.705 Taking this into account, the only reasonable inference is that Nafa and Elma Taric were injured by a shot fired from this area.
699. Witness J, T. 8057; D107 (Official report of the 4th Hrasno Police Station) (under seal). He found no bullet fragments at the scene. T. 8057.
700. D107 (Official report of the 4th Hrasno Police Station) (under seal). Hinchliffe took a laser range finder reading of the distance from the area of Tagolavska road, where he saw trenches and which he suspects was the area of the source of fire, to the spot where the victims were wounded to be 700 metres, Hincliffe, T. 12979-81.
701. Witness J, T. 8084.
702. Witness J, T. 8084.
703. Nafa Taric, T. 3195-8.
704. Witness DP10 said that the street where the incident occurred was only partially visible from the SRK positions, since a white building obstructed the line of sight. However, later in his testimony, he admitted that a line of sight did exist, although he said that the part of the intersection that was visible was in fact sheltered by screens, Witness DP10, T. 14373, 14397, 14411-5. Witness DP16 testified that the site of the incident was not visible from SRK lines, Witness DP16, T. 16576.
705. See photograph No. 1 of P3268 (set of photographs of site of incident); P3280I (videotape); P3279H (360 degree photograph of the location of scheduled sniping incident 10).
"454. Weapon specialists indicated that the noise made by the firing of a mortar can be used to determine the approximate direction of fire.1647 Hamill testified that an observer hearing the sound of a mortar being fired "will not [be able] to determine a location, just [a] direction."1648"
1647. Hamill, T. 6193-4; Kovacs, T. 11482-4; P3734 (Shelling report of Richard Higgs dated 12 February 2002).
1648. Hamill, T. 6193-4.
"ii. Range of Fire Related to the Angle of Descent
466. Following a variety of methods, several investigators and experts drew conclusions on the angle of descent of the mortar shell. By measurement and reconstruction of the impact site, and by interpretation of the shrapnels impact pattern, most experts were led to the conclusion that the angle of descent was close to 60 degrees.1676
467.The method of repositioning the tail fin in the tunnel and measurements on the tunnel after extraction of the tail fin have been challenged by Vilicic as unreliable. The Majority accepts that the removal of the tail-fin may have caused some disturbance to the shape of the tunnel. However, the shrapnel imprints recognized by experts as typical for an angle of descent of approximately 60 degrees, as well as the range calculated by Vilicic (55.6 to 62.5 degrees) based on measurements of the elliptical imprints by Sabljica, were not influenced by the disturbance of the tunnel and were consonant with the measurements performed by Zecevic, using a quadrant after having replaced the tailfin. The Majority notes that Zecevic has shown awareness of the possible disturbance of the tunnel and has testified that the lower part of the tunnel was relatively well preserved.
468. In its conclusions, the UN report rejected the measurements of the shells angle of descent (about 80 degrees) made on 5 February 1994 by Verdy who made a mathematical error, ignored the measures made by Russell (68-73 degrees) on the same day, and gives a range of 950 to 1,100 mils (53.4 to 61.9 degrees), which the report emphasised was determined on 11 February 1994.1677 The Majority understands that the UN Report endorsed the findings made by Khan and Hamill although it cautioned that on the basis of the condition of the crater it was not possible to estimate with any "acceptable degree of accuracy" the angle of descent. On this basis, the Majority rejects the measures of the shells angle of descent made by Verdy and Russell and accepts the range determined by Khan and Hamill, which is consistent with the results obtained from calculations based on measurements of earlier investigations.
469. The certain lower limit of the angle of descent is approximately 50 degrees, since at a lesser angle the shell would have collided with the surrounding buildings. On the basis of the evidence presented, the Majority finds that the shells angle of descent was approximately 60 degrees. Allowing for a margin of error of 5 degrees, the Majority finds that the angle of descent was not greater than 65 degrees.
470. The Defence claims that an exact angle of descent should be measured in order to determine whether the shell was fired from ABiH- or SRK-controlled territory. The Majority rejects this claim. Every measurement is by its very nature a measurement within a range. The more precise the measurement, the smaller the margin of error. The Majority considers that its finding as to the angle of decent are based not on one measurement method but on calculations based on the measurement of elliptical imprints, the interpretation of the shrapnel pattern by experts, and on other methods reviewed above. The Majority has also taken into consideration that measurements of a lesser precision were already adjusted to reflect the margin of error.
471. The UN report gives a range of 300 to 5,551 meters as the horizontal distance over which the mortar shell could have travelled. This stated range covers all possible angles of firing and charges.
472. The Majority accepts that from the angle of descent alone it is not possible to calculate the distance a shell travelled.1678 The number of charges (1 to 6) used in addition to the initial (0) charge progressively increase the distance a shell travels.1679
473. Thus a 120 mm mortar shell fired across a level field at an 0+1 charge at a steep angle (85?) and also landing at a steep angle (85.3 degrees) travels horizontally no more than 275 metres, whereas the same shell fired at an 0+6 charge at the same launch angle (85 degrees) and a similar angle of descent (86.2 degrees) travels more than 1,160 metres. If fired at a low angle (45 degrees) with a 0+1 charge the shell travels horizontally no more than 1,574 metres (and lands at around 47.3 degrees ), whereas the same shell fired at an 0+6 charge travels more than 6,400 meters (landing at around 55.6 degrees).1680
474. It was not until the trial stage that both Prosecution and Defence experts introduced into their analyses the relation between the tail-fins penetration into the ground of the market and the speed of the projectile at impact, an element ignored until then by any investigator or expert.
475. The experts reasoning is based upon the following. The depth of penetration of the tail-fin is indicative of the velocity of the shell upon impact. This velocity is of course related to the velocity of the shell at the moment it was fired1681. The velocity at firing depends on the number of increment charges used. As indicated above, the greater the velocity, the greater the distance travelled, where the shells launch angle is kept constant.
476. The mortar shell used in this case exploded on impact. The experts for both parties agree that the explosion creates a backwards thrust against the tail-fin. If the velocity of the shell, and therefore of the tail-fin, on impact had been 150 m/sec (taking the lowest figure presented to the Trial Chamber), the tail-fin would have just fallen to the ground. If the impact velocity was lesser, the tail -fin would have been propelled backwards. If the impact velocity had been greater, the tail-fin would have overcome the backwards thrust and continued forward.
477. In the present case, the tail-fin continued its trajectory in the forward direction at a speed reduced by 150 m/sec, but still sufficient to embed itself in the ground.1682
478. Zecevic estimated that the impact velocity of the shell must have been greater than 200 m/s for the tail-fin to have embedded itself at the depth he measured. In Zecevics opinion, such a velocity can only be achieved by a shell fired at a 0+4 charge or more. At an angle of descent of 65? the shell would have travelled more than 4.5 kilometres on an 0+4 charge. (As the Majority will explain below, even if, by taking the most favourable figures, an impact speed greater than 200 m/s could be achieved by the lower charge 0 + 3, this does not change the final conclusion.)
479. The Majority pauses here to note that Markale market is at an altitude of approximately 550 metres.1683 The confrontation line to the north-east of the market was at an altitude of some 400 metres higher. Continuing in the same direction past the confrontation line, the ground further rose to reach heights of up to 500 to 650 metres above the market at around 2-2. 5 kilometres past the line.
480. As discussed above, Vilicic at first stated that for the tail-fin to embed itself at the depth measured by Zecevic, the shell would have needed an impact velocity of 528.8 m/sec. This speed cannot be achieved by any known mortar. Vilicic based this calculation on the assumption that the ground of impact was of solid concrete for the entire depth of the tail-fins penetration. Confronted with evidence that the market had a top layer of 2 centimetres of asphalt resting on soil consisting of sand and stones,1684 Vilicic then reviewed his calculations and concluded that penetration of 20 cm by the tail -fin would require an impact velocity for the shell of 268.4 m/sec. A 120 mm mortar shell can achieve a speed of approximately 260 m/s if fired at an 0+6 charge and if the altitude of the impact site is 500 metres below the position from which the shell was fired.1685
481. In brief, both experts, basing themselves on a drop angle of 55 to 65 degrees, concluded that an 0+4 or greater charge would be required to attain the impact velocity necessary for the tail-fin to penetrate the ground to the extent it did. At the 65 degrees angle of descent (which is, according to the Majority, the maximum conceivable angle on the evidence), tables provided by both experts show that the horizontal distance the shell would have travelled comes close to 6,000 metres at charge 0+6 and more than 4,500 meters at charge 0+4.1686
482. It follows that the shell which exploded in Markale market travelled a distance considerably greater than 2,600 metres from the north-east direction, placing the position from which the shell was fired well within SRK-controlled territory.
483. Noting however that the Defence disputes the measure of the depth of penetration of the tail-fin in the ground, submitting that an error in that measure could lead to serious miscalculation of the range of fire, the Majority, out of an abundance of caution, will consider the possibility that the tail-fin penetrated the soil to a lesser depth than the one found by Zecevic and that the shell was fired with an 0+3 increment charge, and therefore that the shell travelled a shorter distance than the one determined above.
484. The Majority recalls briefly that on the day of the incident, Sabljica and Cavcic did not measure the depth of penetration of the tail-fin in the ground but measured a 9-centimetre deep crater. The day after the incident, Zecevic and his colleagues measured the depth of penetration of the tail-fin in the ground from the top asphalt layer to the bottom of the tunnel where the tail-fin had been embedded to be 200 to 250 mm, depending on the side of the hole measured. The UN representatives did not measure the depth of penetration of the tail-fin in the ground giving the reason that such a measurement should have been taken right after the tail-fin was removed from the ground of Markale market. However, Dubant noticed that during his crater examination conducted on 11 February 1994, the crater was still sharply defined and was 11 centimetres deep. There is no evidence in the Trial Record which casts doubt on the measurements made by the local investigative teams. The Majority is convinced that the crater caused by the explosion was approximately 9 centimetres deep and that the depth of the tunnel of the tail-fin and the depth of the crater were together 200-250 mm.
485. The Majority will allow that the shell which struck Markale market impacted on ground consisting of a mixture of soil and stones, thus ignoring the force that would have been required to overcome the higher level of resistance presented by a top layer of asphalt. This favours the Defence case. The Majority also uses the most conservative measurement of the depth of the tail-fins penetration, taking the length to be 10 cm. This, again, favours the Defence case.
486. To penetrate 10 cm of ground consisting of soil and stones, the tail-fin would need a post-explosion velocity of 57 m/sec.1687 This gives a shell impact velocity of 150+57=207 m/sec.
487. The firing velocity of a shell on an 0+3 charge is 211 m/s1688. The Majority understands from the evidence of the experts that the impact velocity of a shell fired over a level field is slightly less than its velocity at firing. A shell fired at the 0+3 charge will lose about 30 m/s of its velocity between firing and impact. However, where the altitude of the impact site is less than that of the firing site, the shell will also gain about 30 m/s from having a longer drop trajectory. As always, in choosing these figures1689 the Majority has interpreted the evidence in a fashion favourable to the Defence case.
488. A shell on an 0+3 charge fired over the height differential applicable in this case would have an impact velocity of around 211 m/s. This would be just sufficient for the tail-fin to embed itself to the stipulated depth. But it would also mean that, at a drop angle of 65 degrees, and taking into account a difference in altitude of 400 metres, the shell would have still travelled about 3.6 km from its point of origin to its point of impact. Once again, this places the point of origin well within SRK-controlled territory.
489. This further consideration assures the Majority that the experts findings are buffered by a large margin of safety. There is no doubt that, given the characteristics of the remains of the explosion of the 120 mm mortar shell at Markale market, the shell could not have been fired from any place on the ABiH side of the confrontation lines in a direction north-northeast of Markale market.
490. Finally, the Majority notes that a shell fired at the 0+2 charge1690 could not attain the required velocity over the given height differential for its tail-fin to penetrate the surface of Markale market to the measured extent.
iii. Non-technical Evidence in relation to the Source of Fire
491. The Majority also emphasises that non-technical evidence supports the finding that a heavy weapon was fired from the direction north-northeast of Markale market from SRK-controlled territory at the time of the incident. The Trial Chamber finds reliable the testimony of Witness AF who heard at the time of the incident the sound of a heavy weapon being fired from behind an SRK position, Spicasta Stijena, at Mrkovici. The fact that Witness AF was at his mothers house in Sedrenik when he heard that sound and not at his place in Vratnik does not cast doubt on his ability to assert a direction. The Majority is convinced by the evidence in the Trial Record, which establishes that the noise made by a firing mortar can be used to determine the approximate direction of fire."
"1676. Khan, 56-62 degrees, Hamill, 53-62 degrees; Zecevic Ballistic Report, 55-65 degrees; Vilicic Shelling Report, 55,6-62,5 degrees.
1677. The Majority notes that the UN report does not include the statement of Russell (the statements of the Frebat team, Verdy, Khan, Hamill, Grande and Dubant are included) and gives no reason for that ommission.
1678. It appears from the tables of fire attached to Vilicic Report that angles of descent are in some relation with angles of firing. In fact, decreasing the firing angle by one degree when closer to 90 degrees results in far greater distance gained than decreasing the firing angle by one degree when closer to 45 degrees. Therefore, upward changes of the firing angle in the area considered (between 50 and 65 degrees) increase the traveling distance much less than similar changes around the firing angle of 85 degrees.
1679. If the angle of firing remains unchanged.
1680. Table 2 in Vilicic Shelling Report.
1681. That a higher velocity at firing results in a higher velocity at impact is not only a fact of common knowledge but also clearly illustrated in Table 2 in Vilicic Shelling Report.
1682. The tail-fin of the mortar shell was found embedded in the ground; the UN team used a knife to remove the tail-fin from the ground. See the evidence above in relation to investigation by the UN and the local investigative team.
1683. Vilicic testified that the altitude of the Markale market was at 600 meters. Maps in evidence that contain contour lines indicate a slightly lesser altitude. Similarly Vilicic testified that no elevation higher than 1000 meters existed in the northerly direction up to Mrkovici, which is also contradicted by the maps, indicating elevations of above 1000 metres in and around locations called Gornji Mrkovici and Donji Mrkovici.
1684. C9 mentions "ground and stone".
1685. P3276.1 (Zecevic Shelling Report).
1686. Based on comparison of the tables in Zecevic Shelling Report, p. 6 and C8, C9.
1687. C8, C9.
1688. Table on p. 6 of Zecevic Ballistic Report, this value is more favorable to the Defence case than the value of 219 m/sec for V? given by Vilicic.
1689. The Majority took the most favourable figures from table 2 in Vilicic Shelling Report and C5: the loss of speed in flight was taken at minimum level, while the increase of speed caused by the difference of altitude was taken at a level, consistent with firing at an 0+3 charge, at a difference of altitude of 500 meters, both options resulting in a possibly higher speed of impact when firing at this lower charge.
1690. The velocity at firing at a 0+2 charge is approximately 40m/sec lower compared to firing at a 0+3 charge which velocity could not generate the velocity at impact needed to explain the embedment of the tailfin in the ground. But even if fired at a 0+2 level the shell would have been fired at a distance of 2577 m, which would still be approximately at the SRK-held confrontation line."
"516. According to witnesses who belonged to the latter army, SRK soldiers in the area did not fire at civilians,1783 but the Majority notes that evidence from other witnesses from a wide variety of backgrounds, including a senior UN representative in Sarajevo and residents of the city, indicates that civilians in ABiH-controlled territory in the vicinity of Spicasta Stijena regularly experienced being shot at.1784 Based on this last evidence, the unobstructed line of sight to Spicasta Stijena as well as the shooting which was directed at the car transporting Witness E to hospital and which came from the direction of this ridge, the Majority is satisfied that the bullet which injured Witness E was fired from the area of Spicasta Stijena. The Majority accepts in particular that since Witness E was kneeling and facing the ridge while playing with flowers, her posture would have caused her back to arch slightly, so that the bullet fired from Spicasta Stijena entered the upper part of her back before exiting through a lower region of her body."
"1783. Nikolic, T. 16002-3, 16049 and 16091-2; DP53, T. 16184; DP34, T. 17892; Knezevic, T. 18962-3.
1784. Thomas, T. 9325-6; ?ehbajraktarevic, T. 1792; Witness AF, T. 5485-6, 5490 and 5499; Jusovic, T. 4147-8 and Ocuz, T. 4176-7."
"535. Both parents believed that the bullet that had injured their daughter had been fired from a ridge known as Baba Stijena, because that location was visible from their house and was controlled by the SRK.1895 Two photographs and a video taken from the front door of the Pitas house show this entrance to be completely walled in by neighbouring houses and structures such as fences, offering only a narrow line of sight in the direction of Baba Stijena.1896 [ ] Hinchliffe measured the distance from Anisa Pitas house to Baba Stijena to be 895 metres1898 and maps tendered by the Defence in relation to this incident indicate that distance to be on the order of 900 metres.1899 The Trial Chamber also notes that the Defence argued that no medical documents were tendered which would "provide information about the position of entry-and-exit wound on the leg of Anisa Pita, or which would provide the possibility to determine the direction of wound canal, including the angle and the direction from where the bullet came from."1900 Nonetheless, based on the approximate distance of 900 metres and the existence of a line of sight from the Pitas front entrance only in the direction of Baba Stijena, the Majority is satisfied beyond reasonable doubt that Anisa Pita was injured by a shot fired from the area of that ridge."
"1895. Ekrem Pita, T. 3990-1 and 4001; Fatima Pita, T. 5879 and 5899-5900; P3280P (video of the location of scheduled incident number 2). Fatima Pita had also seen firing, mostly in the form of shelling, originating from the area of Baba Stijena at night when she left her cellar to go to the bathroom on the ground floor of her house, Fatima Pita, T. 5918 and 5925.
1896. P3266 (photograph taken from the location of scheduled incident number 2); P3279P (360 degree photograph of location of scheduled incident number 2); P3280P (video taken from the location scheduled incident number 2). A picture taken from the entrance to the Pitas house shows that a small tree lies in the direction of Baba Stijena, partially blocking the line of sight. P3267 (Photograph taken from entrance to the Pitas house). Ekrem Pita explained though that this tree was planted after the incident, Ekrem Pita, T. 3992.
1897. P3704 (Map of Sarajevo); Van Lynden, T. 2103; D1925 (Report by Defence military expert Radovan Radinovic).
1898. Hinchliffe, T. 12946. Ekrem Pita thought that the distance from his house to Baba Stijena was somewhere between 350 and 1,200 metres as the crow flies, but was unsure, Ekrem Pita, T. 3991 and 4003. Fatima Pita for her part estimated that distance to be between 200 and 300 metres, Fatima Pita, T. 5879.
1899. The Pitas house is separated from Baba Stijena by 5 centimetres on D49 (Map marked by Ekrem Pita). Although no scale is explicitly indicated on this map, the gridding appearing thereon would suggest that a measurement of 5.5 centimetres corresponds to 1,000 metres in actual distance D49 (Map marked by Ekrem Pita). Map D49 thus appears to indicate that the actual distance between the Pitas house and Baba Stijena is approximately (1,000/5.5) x 5 = 909 metres, Ekrem Pita, T. 3991 and 4003.
1900. Defence Final Trial Brief, para. 72. See also Acquittal Motion, para. 32."
"554. The Defence argues that it is not possible to determine the source of fire1971 because no on-site investigations were carried out to determine "the angle of descent in which the projectile, or part of the projectile, entered the body of Vildana Kapur".1972 The Trial Chamber does not consider the absence of on-site investigations or technical data concerning the point of entry of a bullet into the body critical to a determination of the source of fire. Sahic testified that she could see the SRK front line from Stara Cesta Street and that often the Stara Cesta Street area was targeted.1973 That front line was in the area north of Stara Cesta Street called Poljine, at a distance of approximately 300-400 metres from the spot where Vildana Kapur was shot.1974 Periodically, flashes of gunfire would be seen coming from Poljine.1975 Sahic further testified that on the day of the shooting, while she and her girlfriends were walking on Stara Cesta Street, the machine-gun flashes were visible in front of them on the SRK side of confrontation lines.1976 On the 360 degree photograph of the area where the shooting occurred, she pointed out a group of white houses beneath a rocky ridge with a dome on it where the shots had come from.1977 [ ] The Trial Chamber has no reason not to believe that Sahic was in a position to determine where the bullets striking the ground around her and her girlfriends came from. The Trial Chamber is satisfied beyond reasonable doubt that the bullet which wounded Vildana Kapur was fired from SRK-held territory."
"1971. Defence Final Trial Brief, para. 156.
1972. Id.
1973. [ahic, T. 2595.
1974. D153, D1793.
1975. Sahic, T. 2595.
1976. Sahic, T. 2595.
1977. Sahic, T. 2624."
P.2.2. Evidence of military presence in a particular area from which the attack was directed.
A.Legal source/authority and evidence:
Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, para. 294-295, 354, 511-512, 528, 530 :
"294. During trial, a considerable amount of evidence was tendered with regard to that group of buildings in Nedarici known as the "Institute for the Blind", allegedly a major source of fire in SRK-held territory against civilians of the surrounding areas. Witnesses marked the confrontation line on a map in court as going south along Lukavicka Cesta street from the intersection where the Institute for the Blind is located.807
295. [ ] With reference to the previous day, an"UNMO BH Command" report dated 13 July 1994 stated that the commander of 1st Battalion of the SRK Ilidza Brigade admitted that sniping did originate from Bravo PAPA 859578 ("House for the Blind People"), and "promised that there would be no more sniping from that place."812"
"807. Fajko Kadric, T. 3789-90; P3108 (map of the area); Faruk Kadric, T. 3742-3, showing the confrontation lines on D47, map of the area; however, the witness testified that he couldnt actually see the confrontation lines. All the buildings in front of the "blind Institute and the institute for children were destroyed", as those "below the institute for blind children, the Branka Bujica Street" (area marked on the map as Oslobodjenje-Studenski Dom, Zavod za Slijepe, Dom Penzionera). See also Kucanin, T. 4542, P3644.MK1 (map marked by witness). Faruk Kadric traced another confrontation line along Aleja Branca Bujica (now Aleja Bosne Srebrene), from Ante Babica street up the "Home for the Blind Children", D47 (map of the area marked by witness); Faruk Kadric, T. 3742-3. Witness DP4 marked Aleja Branca Bujica as SRK territory under constant fire from the ABiH; Witness DP4, T. 14137. [ ]
812. P2759 (UNMO report), page 4, para. 24; Witness DP17, T. 16856-61."
"354. The evidence remains uncontradicted that the area of the Orthodox Church from where the fire came from was within SRK-controlled territory.1129 The Trial Chamber is satisfied beyond reasonable doubt that the Orthodox Church area, Dobrinja IV, was controlled by SRK forces."
"1129. As mentioned above, the confrontation line at the eastern part of Dobrinja were along a street separating Dobrinja I and IV from Dobrinja II and III B and the buildings of Dobrinja IV and the Orthodox Church were placed within SRK-held territory, Dzevlan, T. 3516; Karavelic, T. 11816, P3728 (electronic map marked by Vahid Karavelic); P3732 (map marked by Ismet Hadzic); DP9, T. 14459, 14464, 14496; D1770 (map marked by witness); D1771 (electronic map marked by DP9)."
"511. The Trial Chamber heard uncontested testimonies to the effect that Spicasta Stijena was under the control of the SRK during the conflict. Witness DP53 and Vaso Nikolic, both SRK soldiers,1751 testified that they were sometimes posted in the immediate vicinity of Spicasta Stijena.1752 They explained that SRK troops manned trenches and an observation post there, from which soldiers could peer into certain sections of Sedrenik,1753 while the closest ABiH frontline lay approximately 50 metres below the ridgeline.1754 Witness DP20, also an SRK soldier,1755 occasionally went to this area1756 and confirmed that the SRK had deployed troops at Spicasta Stijena.1757 There was ongoing fighting between the ABiH and the SRK in this area1758 and in April 1993 for example, the ABiH captured an SRK trench on the ridgeline.1759 The SRK recaptured that trench a few days thereafter however1760 and overall the confrontation lines in the area did not change throughout the conflict except in limited instances.1761
512. Witnesses who did not belong to the SRK corroborated this evidence. Major Francis Thomas, a representative of the United Nations,1762 recalled visiting trenches belonging to the SRK near Spicasta Stijena.1763 Witness E, a resident of Sedrenik,1764 concluded that the SRK controlled the ridgeline based on the shouts and expletives which she could hear coming from there.1765 Nazija Ocuz, another resident of Sedrenik,1766 testified that she too believed that the SRK controlled Spicasta Stijena because she had seen two SRK soldiers arguing there during the conflict.1767"
"1751. Witness DP53, T. 16114-5; Nikolic, T. 15962.
1752. Witness DP53, T. 16165, 16169, 16177-8; Nikolic, T. 15961-2 and 15981.
1753. Witness DP53, T. 16170 and 16178; Nikolic, T. 15981.
1754. Witness DP53, T. 16153; Nikolic, T. 15982.
1755. Witness DP20, T. 15517.
1756. Witness DP20, T. 15777.
1757. Witness DP20, T. 15770-1.
1758. Witness DP53, T. 16144; Nikolic, T. 15975.
1759. Witness DP53, T. 16152-3; Nikolic, T. 15980 and 16005.
1760. Witness DP53, T. 16155.
1761. Witness DP53, T. 16124. One of the consequences of this ongoing fighting was that the trees on the ridgeline were damaged and felled as the conflict wore on, Witness DP53, T. 16194-5.
1762. Thomas, T. 9255.
1763. Thomas, T. 9325.
1764. Witness E, T. 4033.
1765. Witness E, T. 4067 and 4072-3.
1766. Ocuz, T. 4164.
1767. Ocuz, T. 4166 and 4188. "
"528. Maps marked by soldiers of both the SRK and the ABiH indicate that the two armies faced each other along a confrontation line located in the south-eastern quadrant of Sarajevo, with the ABiH controlling the northern base of Mount Trebevic.1842 Testimonies heard by the Trial Chamber corroborated this evidence. DP1, who provided humanitarian relief for the Serb population living in Sarajevo during the conflict,1843 explained that one of his acquaintances had dug trenches at the foot of Mount Trebevic for the ABiH.1844 Akif Mukanovic, a soldier of the ABiH deployed in that area,1845 confirmed the existence of such trenches.1846"
1842. D1778 (Map marked by Witness DP11); D1809 (Map marked by Witness DP16); P3728 (Map related to scheduled sniping incident number 11 marked by Vahid Karavelic).
1843. Witness DP1, T. 13252-3.
1844. Witness DP1, T. 13342 and 13346.
1845. Mukanovic, T. 3097.
1846. Mukanovic, T. 3097. 3099.
"530. In particular, Carl Harding, a UNMO serving in Sarajevo at the time Anisa Pita was shot,1862 explained that, except for one instance when the ABiH occupied a part of this road for a "short while"1863 before retreating,1864 the road leading to Pale was controlled by the SRK1865 and that the position of the confrontation lines in this area was "very static because the ground was very difficult [and] is very, very steep and closely wooded [so that] the road that went to Pale was a significant boundary for both sides."1866 The Trial Chamber is satisfied that this and the other evidence from a military expert for the Defence, an international journalist and a senior United Nations representative establish beyond reasonable doubt that the SRK operated from the general area of Baba Stijena."
1862. Harding served as a UNMO in Sarajevo from July 1992 to January 1993. Harding, T. 4311.
1863. Harding, T. 4459-60. Harding did not indicate when this attack took place.
1864. Harding, T. 4460. Witness DP11 confirmed that the ABiH frequently attacked this road. Witness DP11, T. 15064.
1865. Harding, T. 4462.
A.Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 287:
"287. [B. Attacks on civilians and civilian objects (Count 3 and 5)] "One or two particular aspects of the evidence related to the issue of a civilian population in the Old Town, and in the wider Dubrovnik, warrants particular note. On 6 December 1991 the attacking JNA soldiers could hear that a defence or air -raid alarm was sounded at about 0700 hours on 6 December 1991 in Dubrovnik.924 In his report concerning that day Lieutenant-Colonel Jovanovic, commanding the 3 /5 mtbr, purported to assume that after the alarm the city dwellers had hidden in shelters. Hence, as he asserted in evidence, he ordered firing on the basis that anyone who was still moving around in the Dubrovnik residential area was participating in combat activities.925 This view assumes, of course, the presence of civilians but seeks to justify the targeting of persons and vehicles moving about on the basis suggested. The view which Lieutenant -Colonel Jovanovic purported to hold on that day does not hold up to scrutiny. Common sense and the evidence of many witnesses in this case, confirms that the population of Dubrovnik was substantially civilian and that many civilian inhabitants had sound reasons for movement about Dubrovnik during the 10 ? hours of the attack. An obvious example is those trying to reach the wounded or to get them to hospital. Others sought better shelter as buildings were damaged or destroyed. Others sought to reach their homes or places of work. There are many more examples. The purported view of Lieutenant-Colonel Jovanovic stands in contradiction with the testimony of another JNA officer, Captain Nesic, who said that he did see city-dwellers, to whom he referred as "civilians", moving about. He specifically accepted that those civilians were not jeopardising him and his unit.926 The presence of civilians within the Old Town was also directly communicated to the JNA at command level by the protests they received on that day from the Crisis Staff. The JNA war diary contains the record of a complaint made by Minister Rudolf to the Accused. The complaint relates to casualties and wounded persons in Dubrovnik, as well as the hitting of the Franciscan Monastery.927 In the finding of the Chamber the view expressed by Lieutenant-Colonel Jovanovic, and on which he acted in targeting the mortars of the 3/5 mtbr which he commanded on 6 December 1991, was clearly false. It was contrived to try to justify what was in truth the indiscriminate targeting of civilian people, vehicles and buildings in the wider Dubrovnik (albeit to the north-west of the Old Town because the Old Town was beyond the range of his mortars) without any military justification."
"924. Captain Nesic, T 8230; Lieutenant -Colonel Jovanovic, T 8112-8113; Exhibit D108.
925. Exhibit D108.
926. Captain Nesic, T 8231.
927. Exhibit D96, p 71, entry at 1600 hours."
Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, paras. 56-57:
"56. In sum, the Trial Chamber finds that the crime of attack on civilians is constituted of the elements common to offences falling under Article 3 of the Statute, as well as of the following specific elements:
57. As regards the first element, the Trial Chamber agrees with previous Trial Chambers that indiscriminate attacks, that is to say, attacks which strike civilians or civilian objects and military objectives without distinction, may qualify as direct attacks against civilians.101 It notes that indiscriminate attacks are expressly prohibited by Additional Protocol I.102 This prohibition reflects a well-established rule of customary law applicable in all armed conflicts.103"
101. Other Trial Chambers have found that attacks which employ certain means of combat which cannot discriminate between civilians and civilian objects and military objectives are tantamount to direct targeting of civilians. For example, the Blaskic Trial Chamber inferred from the arms used in an attack carried out against the town of Stari Vitez that the perpetrators of the attack had wanted to target Muslim civilians, since these arms were difficult to guide accurately, their trajectory was "irregular" and non-linear, thus being likely to hit non-military targets. Blaskic Trial Judgement, paras 501, 512. In the Martic Rule 61 proceedings, the Trial Chamber regarded the use of an Orkan rocket with a cluster bomb warhead as evidence of the intent of the accused to deliberately attack the civilian population. The Chamber concluded that "in respect of its accuracy and striking force, the use of the Orkan rocket in this case was not designed to hit military target but to terrorise the civilians of Zagreb. These attacks are therefore contrary to the rules of customary and conventional international law". The Trial Chamber based this finding on the fact that the rocket was inaccurate, it landed in an area with no military objectives nearby, it was used as an antipersonnel weapon launched against the city of Zagreb and the accused indicated he intended to attack the city, Martic Rule 61 Decision, paras 23-31. It is relevant to note that the International Court of Justice has stated, with regard to the obligation of States not to make civilians the object of attack, that "they must consequently never use weapons that are incapable of distinguishing between civilian and military targets". ICJ Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, ICJ Report 1996, para. 78.
102. Article 51(4) of Additional Protocol I prohibits indiscriminate attacks and provides the first conventional definition of indiscriminate attacks. Paragraph (5) of the same provision provides examples of attacks considered to be indiscriminate. The Kupreskic Trial Chamber held, with regard to the prohibition of launching indiscriminate attacks, that "it is nevertheless beyond dispute that at a minimum, large numbers of casualties would have been interspersed among the combatants. The point which needs to be emphasised is the sacrosanct character of the duty to protect civilians". Even if it can be proved that the Muslim population of Ahmici was not entirely civilian but comprised some armed elements, still no justification would exist for widespread and indiscriminate attacks against civilians." Kupreskic Trial Judgement, para. 513. See also Blaskic Trial Judgement, paras 509-10.
103. As recognized by the Appeals Chamber, among the customary rules that have developed to govern both international conflicts and non-international strife is the protection of the civilian population against indiscriminate attacks. Tadic Jurisdiction Decision, para. 127. The Trial Chamber observes that, already in 1922, the Air Warfare Rules enunciated the prohibition on indiscriminate attacks, by providing that 뱖here military objectives were situated so that they could not be bombarded without the indiscriminate bombardment of the civilian population, the aircraft must abstain from the bombardments.?(Article 24 (3), Air Warfare Rules). These rules impose further limits to bombardments by providing in Article 24(4) that "in the immediate neighbourhood of the operations of land forces, the bombardments of cities, towns and villages, dwellings or buildings is legitimate provided that there exists a reasonable presumption that the military concentration is sufficiently important to justify such bombardments, having regard to the danger thus posed to the civilian population? Although these rules were never adopted in legally binding form, they are considered to be an authorative interpretation of the law. (See, e.g., L. Oppenheim, International Law vol II, 7th ed, 1960). The IX Hague Convention concerning Bombing of Naval Forces in Time of War of 1907 also recognized in its Article 12 that collateral civilian casualties might result and urged that precautions be taken to avoid or minimize them. In March 1938, during the Spanish Civil War, the British Prime Minister explained the protest of his country to General Franco over the bombing of Barcelona to members of the House of Commons by stating that "he one definite rule of international law, however, is that direct and deliberate bombing of non-combatants is in all circumstances illegal, and His Majesty Government protest was based on information which led them to the conclusion that the bombardments of Barcelona, carried on apparently random and without special aim at military objectives, was in fact of this nature.?House of Commons Debates, vol. 333, 23 March 1938, col. 1177). In June of that year, in reference to the same conflict, the Prime Minister affirmed before the House of Commons the existence of a rule or principle of international law prescribing that "reasonable care must be taken in attacking?military objectives so that by carelessness a civilian population in the neighbourhood is not bombed." (House of Common Debates, vol. 337, 21 June 1938, cols 937-8). In 1938, the Assembly and the Council of the League of Nations both condemned attacks carried out without sufficient precautions to safeguard the civilian population. The Assembly of the League of Nations expressed the concern that the civilian population be bombarded through negligence by stating, inter alia, that "any attack on legitimate military objectives must be carried out in such a way that civilian population in the neighbourhood are not bombed through negligence". In this same sense, the Council of the League of Nations also adopted a resolution condemning inter alia as "contrary to the conscience of mankind and to the principles of international law air attacks by the insurgents directed "by negligence" against civilian population." In its already cited Resolution 2444 (1968), the UN General Assembly affirmed that among the principles applicable to all armed conflicts was that "distinction must be made at all times between persons taking part in the hostilities and members of the civilian population to the effect that the latter be spared as much as possible." (G.A. Res. 2444, U.N. GAOR, 23rd Session, Supp. No. 18 U.N. Doc A/7218(1968)). Resolution 2675(1970) also stated that "in the conduct of military operations, every effort should be made to spare the civilian populations from the ravages of war, and all necessary precautions should be taken to avoid injury loss or damage to the civilian populations." (G.A. Res. 2675, U.N. GAOR, 25th Session, Supp. No. 28 U.N. Doc A/8028 (1970).
A.Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Decision on Defence Motion Requesting Judgement of Acquittal Pursuant to Rule 98 Bis (TC), 21 June 2004, paras. 49-50:
"49. The Accused is charged with participation in the crime of attacks on civilians, a violation of the laws or customs of war, as recognised by Article 51 of Additional Protocol I and Article 13 of Additional Protocol II. The Prosecution alleges that, even assuming that military objectives were present in the Old Town, in any event, civilian losses in human lives and property caused by the attack were excessive in relation to the concrete and direct military advantage anticipated.70
50. Pursuant to the Tribunals case-law, the crime of attacks on civilians is, as to the actus reus, an attack launched against a civilian population that caused deaths and/or serious bodily injury within that population,71 which, as to the mens rea, must have been conducted "intentionally in the knowledge, or when it was impossible not to know, that civilians were being targeted ".72 The presence of certain non- civilians among the targeted population does not change the character of that population. It must be of a "predominantly civilian nature".73 The following attacks are, among others, prohibited by Article 51: attacks the object of which is "the civilian population as such, as well as individual civilians" (§ 2); indiscriminate attacks, such as those which "are of a nature to strike military objectives and civilians or civilian objects without distinction" (§ 4) and those which "may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated" (§ 5 (b))."
"70. The Prosecution opening statement, T. 263-7.
71. See Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-T, Judgement, 3 March 2000 (hereinafter "Blaskic Trial Judgment"), para. 180, Prosecutor v. Dario Kordic and Mario Cerkez, Case No. IT-95-14/2-T, Judgement, 26 February 2001 (hereinafter "Kordic Trial Judgement"), para. 328 and Prosecutor v. Stanislav Galic, Case No. IT-98-29-T, Judgement, 5 December 2003 (hereinafter "Galic Trial Judgment"), para. 62.
72. See Blaskic Trial Judgement, para. 180. In the Blaskic and Kordic Trial Judgements an additional condition is mentioned, that the attack was launched not through military necessity (Ibid.). The Trial Chamber in the Galic case observed, however, that Article 51 (2) of Additional Protocol I states in clear language that civilians and the civilian population as such should not be the object of attack and does not mention any exceptions, in particular that provision does not contemplate derogating from that rule by invoking military necessity (Ibid., para. 44).
73. See Prosecutor v. Dusko Tadic, Case No. IT-94-1-T, Judgement, 7 May 1997 (hereinafter "Tadic Trial Judgement"), para. 638 and Blaskic Trial Judgement, para. 214."
P.3. Evidence with regard to the identity of the perpetrator.
A.Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 284:
"284. The Chamber has already found that on 6 December 1991 there was an attack launched by the JNA forces against the Old Town of Dubrovnik.909 It is also the finding of the Chamber, as recorded earlier, that there were no military objectives within the Old Town and the attack was not launched or maintained in the belief that there were.910"
"909. See supra, paras 99-119 ; 121-145.
910. See supra, paras 193- 194."
P.4. Evidence with regard to the source of the attack.
P.4.1. Evidence with regard to direction of attack.
A.Legal source/authority and evidence:
Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, paras. 257, 264, 270, 454, 466-491, 516, 535, 554:
"257. Considering the location of the tram when it was hit and that it was impacted on the left-hand side in the direction it was travelling, the fact that there was an unobstructed line of sight between the site of the event and the area of the Jewish Cemetery under the SRK control, the approximate distance between these two areas, lead the Trial Chamber to find that the only reasonable conclusion is that the shot which struck the tram was fired from this area held by the SRK."
"264. From the orientation of the bus and of the bullet marks, Ashton concluded that the gunfire originated from the area above the sports stadium in Grbavica.666"
"666. Ashton, T. 1384, 1386. The witness marked direction of fire on a map (P 3645)."
"270. The Trial Chamber considers that the absence of more detailed medical documentation or technical information on the point of entry of the bullet into the bodies of the victims is not crucial for determining the source of fire. Witness J, a police officer from the Novo Sarajevo Public Security Station who conducted an on-site investigation of the event,699 concluded that the shot had been fired from the SRK positions on Ozrenska Street.700 He based his conclusion not only on the common knowledge that snipers operated in that area,701 but also on the fact that the police was unable to immediately access the site of the incident because of on-going shooting from those positions.702 Nafa Taric recalled speaking to five people at the hospital where she was taken who had been injured by sniper fire originating in the area of Ozrenska Street within an hour of the incident in which she and her daughter were wounded.703 DP10 and DP16 testified that the site of the incident was not fully visible from SRK positions in Ozrenska Street.704 However, visual evidence presented to the Trial Chamber demonstrates that there was an unobstructed line of sight from SRK positions on Hrasno Brdo to the location of the incident.705 Taking this into account, the only reasonable inference is that Nafa and Elma Taric were injured by a shot fired from this area.
699. Witness J, T. 8057; D107 (Official report of the 4th Hrasno Police Station) (under seal). He found no bullet fragments at the scene. T. 8057.
700. D107 (Official report of the 4th Hrasno Police Station) (under seal). Hinchliffe took a laser range finder reading of the distance from the area of Tagolavska road, where he saw trenches and which he suspects was the area of the source of fire, to the spot where the victims were wounded to be 700 metres, Hincliffe, T. 12979-81.
701. Witness J, T. 8084.
702. Witness J, T. 8084.
703. Nafa Taric, T. 3195-8.
704. Witness DP10 said that the street where the incident occurred was only partially visible from the SRK positions, since a white building obstructed the line of sight. However, later in his testimony, he admitted that a line of sight did exist, although he said that the part of the intersection that was visible was in fact sheltered by screens, Witness DP10, T. 14373, 14397, 14411-5. Witness DP16 testified that the site of the incident was not visible from SRK lines, Witness DP16, T. 16576.
705. See photograph No. 1 of P3268 (set of photographs of site of incident); P3280I (videotape); P3279H (360 degree photograph of the location of scheduled sniping incident 10).
"454. Weapon specialists indicated that the noise made by the firing of a mortar can be used to determine the approximate direction of fire.1647 Hamill testified that an observer hearing the sound of a mortar being fired "will not [be able] to determine a location, just [a] direction."1648"
1647. Hamill, T. 6193-4; Kovacs, T. 11482-4; P3734 (Shelling report of Richard Higgs dated 12 February 2002).
1648. Hamill, T. 6193-4.
"ii. Range of Fire Related to the Angle of Descent
466. Following a variety of methods, several investigators and experts drew conclusions on the angle of descent of the mortar shell. By measurement and reconstruction of the impact site, and by interpretation of the shrapnels impact pattern, most experts were led to the conclusion that the angle of descent was close to 60 degrees.1676
467.The method of repositioning the tail fin in the tunnel and measurements on the tunnel after extraction of the tail fin have been challenged by Vilicic as unreliable. The Majority accepts that the removal of the tail-fin may have caused some disturbance to the shape of the tunnel. However, the shrapnel imprints recognized by experts as typical for an angle of descent of approximately 60 degrees, as well as the range calculated by Vilicic (55.6 to 62.5 degrees) based on measurements of the elliptical imprints by Sabljica, were not influenced by the disturbance of the tunnel and were consonant with the measurements performed by Zecevic, using a quadrant after having replaced the tailfin. The Majority notes that Zecevic has shown awareness of the possible disturbance of the tunnel and has testified that the lower part of the tunnel was relatively well preserved.
468. In its conclusions, the UN report rejected the measurements of the shells angle of descent (about 80 degrees) made on 5 February 1994 by Verdy who made a mathematical error, ignored the measures made by Russell (68-73 degrees) on the same day, and gives a range of 950 to 1,100 mils (53.4 to 61.9 degrees), which the report emphasised was determined on 11 February 1994.1677 The Majority understands that the UN Report endorsed the findings made by Khan and Hamill although it cautioned that on the basis of the condition of the crater it was not possible to estimate with any "acceptable degree of accuracy" the angle of descent. On this basis, the Majority rejects the measures of the shells angle of descent made by Verdy and Russell and accepts the range determined by Khan and Hamill, which is consistent with the results obtained from calculations based on measurements of earlier investigations.
469. The certain lower limit of the angle of descent is approximately 50 degrees, since at a lesser angle the shell would have collided with the surrounding buildings. On the basis of the evidence presented, the Majority finds that the shells angle of descent was approximately 60 degrees. Allowing for a margin of error of 5 degrees, the Majority finds that the angle of descent was not greater than 65 degrees.
470. The Defence claims that an exact angle of descent should be measured in order to determine whether the shell was fired from ABiH- or SRK-controlled territory. The Majority rejects this claim. Every measurement is by its very nature a measurement within a range. The more precise the measurement, the smaller the margin of error. The Majority considers that its finding as to the angle of decent are based not on one measurement method but on calculations based on the measurement of elliptical imprints, the interpretation of the shrapnel pattern by experts, and on other methods reviewed above. The Majority has also taken into consideration that measurements of a lesser precision were already adjusted to reflect the margin of error.
471. The UN report gives a range of 300 to 5,551 meters as the horizontal distance over which the mortar shell could have travelled. This stated range covers all possible angles of firing and charges.
472. The Majority accepts that from the angle of descent alone it is not possible to calculate the distance a shell travelled.1678 The number of charges (1 to 6) used in addition to the initial (0) charge progressively increase the distance a shell travels.1679
473. Thus a 120 mm mortar shell fired across a level field at an 0+1 charge at a steep angle (85?) and also landing at a steep angle (85.3 degrees) travels horizontally no more than 275 metres, whereas the same shell fired at an 0+6 charge at the same launch angle (85 degrees) and a similar angle of descent (86.2 degrees) travels more than 1,160 metres. If fired at a low angle (45 degrees) with a 0+1 charge the shell travels horizontally no more than 1,574 metres (and lands at around 47.3 degrees ), whereas the same shell fired at an 0+6 charge travels more than 6,400 meters (landing at around 55.6 degrees).1680
474. It was not until the trial stage that both Prosecution and Defence experts introduced into their analyses the relation between the tail-fins penetration into the ground of the market and the speed of the projectile at impact, an element ignored until then by any investigator or expert.
475. The experts reasoning is based upon the following. The depth of penetration of the tail-fin is indicative of the velocity of the shell upon impact. This velocity is of course related to the velocity of the shell at the moment it was fired1681. The velocity at firing depends on the number of increment charges used. As indicated above, the greater the velocity, the greater the distance travelled, where the shells launch angle is kept constant.
476. The mortar shell used in this case exploded on impact. The experts for both parties agree that the explosion creates a backwards thrust against the tail-fin. If the velocity of the shell, and therefore of the tail-fin, on impact had been 150 m/sec (taking the lowest figure presented to the Trial Chamber), the tail-fin would have just fallen to the ground. If the impact velocity was lesser, the tail -fin would have been propelled backwards. If the impact velocity had been greater, the tail-fin would have overcome the backwards thrust and continued forward.
477. In the present case, the tail-fin continued its trajectory in the forward direction at a speed reduced by 150 m/sec, but still sufficient to embed itself in the ground.1682
478. Zecevic estimated that the impact velocity of the shell must have been greater than 200 m/s for the tail-fin to have embedded itself at the depth he measured. In Zecevics opinion, such a velocity can only be achieved by a shell fired at a 0+4 charge or more. At an angle of descent of 65? the shell would have travelled more than 4.5 kilometres on an 0+4 charge. (As the Majority will explain below, even if, by taking the most favourable figures, an impact speed greater than 200 m/s could be achieved by the lower charge 0 + 3, this does not change the final conclusion.)
479. The Majority pauses here to note that Markale market is at an altitude of approximately 550 metres.1683 The confrontation line to the north-east of the market was at an altitude of some 400 metres higher. Continuing in the same direction past the confrontation line, the ground further rose to reach heights of up to 500 to 650 metres above the market at around 2-2. 5 kilometres past the line.
480. As discussed above, Vilicic at first stated that for the tail-fin to embed itself at the depth measured by Zecevic, the shell would have needed an impact velocity of 528.8 m/sec. This speed cannot be achieved by any known mortar. Vilicic based this calculation on the assumption that the ground of impact was of solid concrete for the entire depth of the tail-fins penetration. Confronted with evidence that the market had a top layer of 2 centimetres of asphalt resting on soil consisting of sand and stones,1684 Vilicic then reviewed his calculations and concluded that penetration of 20 cm by the tail -fin would require an impact velocity for the shell of 268.4 m/sec. A 120 mm mortar shell can achieve a speed of approximately 260 m/s if fired at an 0+6 charge and if the altitude of the impact site is 500 metres below the position from which the shell was fired.1685
481. In brief, both experts, basing themselves on a drop angle of 55 to 65 degrees, concluded that an 0+4 or greater charge would be required to attain the impact velocity necessary for the tail-fin to penetrate the ground to the extent it did. At the 65 degrees angle of descent (which is, according to the Majority, the maximum conceivable angle on the evidence), tables provided by both experts show that the horizontal distance the shell would have travelled comes close to 6,000 metres at charge 0+6 and more than 4,500 meters at charge 0+4.1686
482. It follows that the shell which exploded in Markale market travelled a distance considerably greater than 2,600 metres from the north-east direction, placing the position from which the shell was fired well within SRK-controlled territory.
483. Noting however that the Defence disputes the measure of the depth of penetration of the tail-fin in the ground, submitting that an error in that measure could lead to serious miscalculation of the range of fire, the Majority, out of an abundance of caution, will consider the possibility that the tail-fin penetrated the soil to a lesser depth than the one found by Zecevic and that the shell was fired with an 0+3 increment charge, and therefore that the shell travelled a shorter distance than the one determined above.
484. The Majority recalls briefly that on the day of the incident, Sabljica and Cavcic did not measure the depth of penetration of the tail-fin in the ground but measured a 9-centimetre deep crater. The day after the incident, Zecevic and his colleagues measured the depth of penetration of the tail-fin in the ground from the top asphalt layer to the bottom of the tunnel where the tail-fin had been embedded to be 200 to 250 mm, depending on the side of the hole measured. The UN representatives did not measure the depth of penetration of the tail-fin in the ground giving the reason that such a measurement should have been taken right after the tail-fin was removed from the ground of Markale market. However, Dubant noticed that during his crater examination conducted on 11 February 1994, the crater was still sharply defined and was 11 centimetres deep. There is no evidence in the Trial Record which casts doubt on the measurements made by the local investigative teams. The Majority is convinced that the crater caused by the explosion was approximately 9 centimetres deep and that the depth of the tunnel of the tail-fin and the depth of the crater were together 200-250 mm.
485. The Majority will allow that the shell which struck Markale market impacted on ground consisting of a mixture of soil and stones, thus ignoring the force that would have been required to overcome the higher level of resistance presented by a top layer of asphalt. This favours the Defence case. The Majority also uses the most conservative measurement of the depth of the tail-fins penetration, taking the length to be 10 cm. This, again, favours the Defence case.
486. To penetrate 10 cm of ground consisting of soil and stones, the tail-fin would need a post-explosion velocity of 57 m/sec.1687 This gives a shell impact velocity of 150+57=207 m/sec.
487. The firing velocity of a shell on an 0+3 charge is 211 m/s1688. The Majority understands from the evidence of the experts that the impact velocity of a shell fired over a level field is slightly less than its velocity at firing. A shell fired at the 0+3 charge will lose about 30 m/s of its velocity between firing and impact. However, where the altitude of the impact site is less than that of the firing site, the shell will also gain about 30 m/s from having a longer drop trajectory. As always, in choosing these figures1689 the Majority has interpreted the evidence in a fashion favourable to the Defence case.
488. A shell on an 0+3 charge fired over the height differential applicable in this case would have an impact velocity of around 211 m/s. This would be just sufficient for the tail-fin to embed itself to the stipulated depth. But it would also mean that, at a drop angle of 65 degrees, and taking into account a difference in altitude of 400 metres, the shell would have still travelled about 3.6 km from its point of origin to its point of impact. Once again, this places the point of origin well within SRK-controlled territory.
489. This further consideration assures the Majority that the experts findings are buffered by a large margin of safety. There is no doubt that, given the characteristics of the remains of the explosion of the 120 mm mortar shell at Markale market, the shell could not have been fired from any place on the ABiH side of the confrontation lines in a direction north-northeast of Markale market.
490. Finally, the Majority notes that a shell fired at the 0+2 charge1690 could not attain the required velocity over the given height differential for its tail-fin to penetrate the surface of Markale market to the measured extent.
iii. Non-technical Evidence in relation to the Source of Fire
491. The Majority also emphasises that non-technical evidence supports the finding that a heavy weapon was fired from the direction north-northeast of Markale market from SRK-controlled territory at the time of the incident. The Trial Chamber finds reliable the testimony of Witness AF who heard at the time of the incident the sound of a heavy weapon being fired from behind an SRK position, Spicasta Stijena, at Mrkovici. The fact that Witness AF was at his mothers house in Sedrenik when he heard that sound and not at his place in Vratnik does not cast doubt on his ability to assert a direction. The Majority is convinced by the evidence in the Trial Record, which establishes that the noise made by a firing mortar can be used to determine the approximate direction of fire."
"1676. Khan, 56-62 degrees, Hamill, 53-62 degrees; Zecevic Ballistic Report, 55-65 degrees; Vilicic Shelling Report, 55,6-62,5 degrees.
1677. The Majority notes that the UN report does not include the statement of Russell (the statements of the Frebat team, Verdy, Khan, Hamill, Grande and Dubant are included) and gives no reason for that ommission.
1678. It appears from the tables of fire attached to Vilicic Report that angles of descent are in some relation with angles of firing. In fact, decreasing the firing angle by one degree when closer to 90 degrees results in far greater distance gained than decreasing the firing angle by one degree when closer to 45 degrees. Therefore, upward changes of the firing angle in the area considered (between 50 and 65 degrees) increase the traveling distance much less than similar changes around the firing angle of 85 degrees.
1679. If the angle of firing remains unchanged.
1680. Table 2 in Vilicic Shelling Report.
1681. That a higher velocity at firing results in a higher velocity at impact is not only a fact of common knowledge but also clearly illustrated in Table 2 in Vilicic Shelling Report.
1682. The tail-fin of the mortar shell was found embedded in the ground; the UN team used a knife to remove the tail-fin from the ground. See the evidence above in relation to investigation by the UN and the local investigative team.
1683. Vilicic testified that the altitude of the Markale market was at 600 meters. Maps in evidence that contain contour lines indicate a slightly lesser altitude. Similarly Vilicic testified that no elevation higher than 1000 meters existed in the northerly direction up to Mrkovici, which is also contradicted by the maps, indicating elevations of above 1000 metres in and around locations called Gornji Mrkovici and Donji Mrkovici.
1684. C9 mentions "ground and stone".
1685. P3276.1 (Zecevic Shelling Report).
1686. Based on comparison of the tables in Zecevic Shelling Report, p. 6 and C8, C9.
1687. C8, C9.
1688. Table on p. 6 of Zecevic Ballistic Report, this value is more favorable to the Defence case than the value of 219 m/sec for V? given by Vilicic.
1689. The Majority took the most favourable figures from table 2 in Vilicic Shelling Report and C5: the loss of speed in flight was taken at minimum level, while the increase of speed caused by the difference of altitude was taken at a level, consistent with firing at an 0+3 charge, at a difference of altitude of 500 meters, both options resulting in a possibly higher speed of impact when firing at this lower charge.
1690. The velocity at firing at a 0+2 charge is approximately 40m/sec lower compared to firing at a 0+3 charge which velocity could not generate the velocity at impact needed to explain the embedment of the tailfin in the ground. But even if fired at a 0+2 level the shell would have been fired at a distance of 2577 m, which would still be approximately at the SRK-held confrontation line."
"516. According to witnesses who belonged to the latter army, SRK soldiers in the area did not fire at civilians,1783 but the Majority notes that evidence from other witnesses from a wide variety of backgrounds, including a senior UN representative in Sarajevo and residents of the city, indicates that civilians in ABiH-controlled territory in the vicinity of Spicasta Stijena regularly experienced being shot at.1784 Based on this last evidence, the unobstructed line of sight to Spicasta Stijena as well as the shooting which was directed at the car transporting Witness E to hospital and which came from the direction of this ridge, the Majority is satisfied that the bullet which injured Witness E was fired from the area of Spicasta Stijena. The Majority accepts in particular that since Witness E was kneeling and facing the ridge while playing with flowers, her posture would have caused her back to arch slightly, so that the bullet fired from Spicasta Stijena entered the upper part of her back before exiting through a lower region of her body."
"1783. Nikolic, T. 16002-3, 16049 and 16091-2; DP53, T. 16184; DP34, T. 17892; Knezevic, T. 18962-3.
1784. Thomas, T. 9325-6; ?ehbajraktarevic, T. 1792; Witness AF, T. 5485-6, 5490 and 5499; Jusovic, T. 4147-8 and Ocuz, T. 4176-7."
"535. Both parents believed that the bullet that had injured their daughter had been fired from a ridge known as Baba Stijena, because that location was visible from their house and was controlled by the SRK.1895 Two photographs and a video taken from the front door of the Pitas house show this entrance to be completely walled in by neighbouring houses and structures such as fences, offering only a narrow line of sight in the direction of Baba Stijena.1896 [ ] Hinchliffe measured the distance from Anisa Pitas house to Baba Stijena to be 895 metres1898 and maps tendered by the Defence in relation to this incident indicate that distance to be on the order of 900 metres.1899 The Trial Chamber also notes that the Defence argued that no medical documents were tendered which would "provide information about the position of entry-and-exit wound on the leg of Anisa Pita, or which would provide the possibility to determine the direction of wound canal, including the angle and the direction from where the bullet came from."1900 Nonetheless, based on the approximate distance of 900 metres and the existence of a line of sight from the Pitas front entrance only in the direction of Baba Stijena, the Majority is satisfied beyond reasonable doubt that Anisa Pita was injured by a shot fired from the area of that ridge."
"1895. Ekrem Pita, T. 3990-1 and 4001; Fatima Pita, T. 5879 and 5899-5900; P3280P (video of the location of scheduled incident number 2). Fatima Pita had also seen firing, mostly in the form of shelling, originating from the area of Baba Stijena at night when she left her cellar to go to the bathroom on the ground floor of her house, Fatima Pita, T. 5918 and 5925.
1896. P3266 (photograph taken from the location of scheduled incident number 2); P3279P (360 degree photograph of location of scheduled incident number 2); P3280P (video taken from the location scheduled incident number 2). A picture taken from the entrance to the Pitas house shows that a small tree lies in the direction of Baba Stijena, partially blocking the line of sight. P3267 (Photograph taken from entrance to the Pitas house). Ekrem Pita explained though that this tree was planted after the incident, Ekrem Pita, T. 3992.
1897. P3704 (Map of Sarajevo); Van Lynden, T. 2103; D1925 (Report by Defence military expert Radovan Radinovic).
1898. Hinchliffe, T. 12946. Ekrem Pita thought that the distance from his house to Baba Stijena was somewhere between 350 and 1,200 metres as the crow flies, but was unsure, Ekrem Pita, T. 3991 and 4003. Fatima Pita for her part estimated that distance to be between 200 and 300 metres, Fatima Pita, T. 5879.
1899. The Pitas house is separated from Baba Stijena by 5 centimetres on D49 (Map marked by Ekrem Pita). Although no scale is explicitly indicated on this map, the gridding appearing thereon would suggest that a measurement of 5.5 centimetres corresponds to 1,000 metres in actual distance D49 (Map marked by Ekrem Pita). Map D49 thus appears to indicate that the actual distance between the Pitas house and Baba Stijena is approximately (1,000/5.5) x 5 = 909 metres, Ekrem Pita, T. 3991 and 4003.
1900. Defence Final Trial Brief, para. 72. See also Acquittal Motion, para. 32."
"554. The Defence argues that it is not possible to determine the source of fire1971 because no on-site investigations were carried out to determine "the angle of descent in which the projectile, or part of the projectile, entered the body of Vildana Kapur".1972 The Trial Chamber does not consider the absence of on-site investigations or technical data concerning the point of entry of a bullet into the body critical to a determination of the source of fire. Sahic testified that she could see the SRK front line from Stara Cesta Street and that often the Stara Cesta Street area was targeted.1973 That front line was in the area north of Stara Cesta Street called Poljine, at a distance of approximately 300-400 metres from the spot where Vildana Kapur was shot.1974 Periodically, flashes of gunfire would be seen coming from Poljine.1975 Sahic further testified that on the day of the shooting, while she and her girlfriends were walking on Stara Cesta Street, the machine-gun flashes were visible in front of them on the SRK side of confrontation lines.1976 On the 360 degree photograph of the area where the shooting occurred, she pointed out a group of white houses beneath a rocky ridge with a dome on it where the shots had come from.1977 [ ] The Trial Chamber has no reason not to believe that Sahic was in a position to determine where the bullets striking the ground around her and her girlfriends came from. The Trial Chamber is satisfied beyond reasonable doubt that the bullet which wounded Vildana Kapur was fired from SRK-held territory."
"1971. Defence Final Trial Brief, para. 156.
1972. Id.
1973. [ahic, T. 2595.
1974. D153, D1793.
1975. Sahic, T. 2595.
1976. Sahic, T. 2595.
1977. Sahic, T. 2624."
P.4.2. Evidence of military presence in a particular area from which the attack was directed.
A.Legal source/authority and evidence:
The Prosecutor v. Momcilo Perisic, Case No. IT-04-81, Judgement (TC), 6 September 2011, para. 532
532. The Trial Chamber finds beyond a reasonable doubt that the tram, driven on 3 March 1995 by Slavica Livnjak, was deliberately hit by sniper fire in front of the Holiday Inn. The Trial Chamber also notes that the evidence shows that generally the trams were civilian vehicles not used for military purposes. The Trial Chamber is therefore satisfied that the only reasonable inference to be drawn from the evidence is that the victims were civilians not taking part in hostilities. The Trial Chamber also concludes that the shots were fired from the Metalka building in Grbavica, which was under the control of the VRS at the relevant time.
Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, para. 294-295, 354, 511-512, 528, 530 :
"294. During trial, a considerable amount of evidence was tendered with regard to that group of buildings in Nedarici known as the "Institute for the Blind", allegedly a major source of fire in SRK-held territory against civilians of the surrounding areas. Witnesses marked the confrontation line on a map in court as going south along Lukavicka Cesta street from the intersection where the Institute for the Blind is located.807
295. [ ] With reference to the previous day, an"UNMO BH Command" report dated 13 July 1994 stated that the commander of 1st Battalion of the SRK Ilidza Brigade admitted that sniping did originate from Bravo PAPA 859578 ("House for the Blind People"), and "promised that there would be no more sniping from that place."812"
"807. Fajko Kadric, T. 3789-90; P3108 (map of the area); Faruk Kadric, T. 3742-3, showing the confrontation lines on D47, map of the area; however, the witness testified that he couldnt actually see the confrontation lines. All the buildings in front of the "blind Institute and the institute for children were destroyed", as those "below the institute for blind children, the Branka Bujica Street" (area marked on the map as Oslobodjenje-Studenski Dom, Zavod za Slijepe, Dom Penzionera). See also Kucanin, T. 4542, P3644.MK1 (map marked by witness). Faruk Kadric traced another confrontation line along Aleja Branca Bujica (now Aleja Bosne Srebrene), from Ante Babica street up the "Home for the Blind Children", D47 (map of the area marked by witness); Faruk Kadric, T. 3742-3. Witness DP4 marked Aleja Branca Bujica as SRK territory under constant fire from the ABiH; Witness DP4, T. 14137. [ ]
812. P2759 (UNMO report), page 4, para. 24; Witness DP17, T. 16856-61."
"354. The evidence remains uncontradicted that the area of the Orthodox Church from where the fire came from was within SRK-controlled territory.1129 The Trial Chamber is satisfied beyond reasonable doubt that the Orthodox Church area, Dobrinja IV, was controlled by SRK forces."
"1129. As mentioned above, the confrontation line at the eastern part of Dobrinja were along a street separating Dobrinja I and IV from Dobrinja II and III B and the buildings of Dobrinja IV and the Orthodox Church were placed within SRK-held territory, Dzevlan, T. 3516; Karavelic, T. 11816, P3728 (electronic map marked by Vahid Karavelic); P3732 (map marked by Ismet Hadzic); DP9, T. 14459, 14464, 14496; D1770 (map marked by witness); D1771 (electronic map marked by DP9)."
"511. The Trial Chamber heard uncontested testimonies to the effect that Spicasta Stijena was under the control of the SRK during the conflict. Witness DP53 and Vaso Nikolic, both SRK soldiers,1751 testified that they were sometimes posted in the immediate vicinity of Spicasta Stijena.1752 They explained that SRK troops manned trenches and an observation post there, from which soldiers could peer into certain sections of Sedrenik,1753 while the closest ABiH frontline lay approximately 50 metres below the ridgeline.1754 Witness DP20, also an SRK soldier,1755 occasionally went to this area1756 and confirmed that the SRK had deployed troops at Spicasta Stijena.1757 There was ongoing fighting between the ABiH and the SRK in this area1758 and in April 1993 for example, the ABiH captured an SRK trench on the ridgeline.1759 The SRK recaptured that trench a few days thereafter however1760 and overall the confrontation lines in the area did not change throughout the conflict except in limited instances.1761
512. Witnesses who did not belong to the SRK corroborated this evidence. Major Francis Thomas, a representative of the United Nations,1762 recalled visiting trenches belonging to the SRK near Spicasta Stijena.1763 Witness E, a resident of Sedrenik,1764 concluded that the SRK controlled the ridgeline based on the shouts and expletives which she could hear coming from there.1765 Nazija Ocuz, another resident of Sedrenik,1766 testified that she too believed that the SRK controlled Spicasta Stijena because she had seen two SRK soldiers arguing there during the conflict.1767"
"1751. Witness DP53, T. 16114-5; Nikolic, T. 15962.
1752. Witness DP53, T. 16165, 16169, 16177-8; Nikolic, T. 15961-2 and 15981.
1753. Witness DP53, T. 16170 and 16178; Nikolic, T. 15981.
1754. Witness DP53, T. 16153; Nikolic, T. 15982.
1755. Witness DP20, T. 15517.
1756. Witness DP20, T. 15777.
1757. Witness DP20, T. 15770-1.
1758. Witness DP53, T. 16144; Nikolic, T. 15975.
1759. Witness DP53, T. 16152-3; Nikolic, T. 15980 and 16005.
1760. Witness DP53, T. 16155.
1761. Witness DP53, T. 16124. One of the consequences of this ongoing fighting was that the trees on the ridgeline were damaged and felled as the conflict wore on, Witness DP53, T. 16194-5.
1762. Thomas, T. 9255.
1763. Thomas, T. 9325.
1764. Witness E, T. 4033.
1765. Witness E, T. 4067 and 4072-3.
1766. Ocuz, T. 4164.
1767. Ocuz, T. 4166 and 4188. "
"528. Maps marked by soldiers of both the SRK and the ABiH indicate that the two armies faced each other along a confrontation line located in the south-eastern quadrant of Sarajevo, with the ABiH controlling the northern base of Mount Trebevic.1842 Testimonies heard by the Trial Chamber corroborated this evidence. DP1, who provided humanitarian relief for the Serb population living in Sarajevo during the conflict,1843 explained that one of his acquaintances had dug trenches at the foot of Mount Trebevic for the ABiH.1844 Akif Mukanovic, a soldier of the ABiH deployed in that area,1845 confirmed the existence of such trenches.1846"
1842. D1778 (Map marked by Witness DP11); D1809 (Map marked by Witness DP16); P3728 (Map related to scheduled sniping incident number 11 marked by Vahid Karavelic).
1843. Witness DP1, T. 13252-3.
1844. Witness DP1, T. 13342 and 13346.
1845. Mukanovic, T. 3097.
1846. Mukanovic, T. 3097. 3099.
"530. In particular, Carl Harding, a UNMO serving in Sarajevo at the time Anisa Pita was shot,1862 explained that, except for one instance when the ABiH occupied a part of this road for a "short while"1863 before retreating,1864 the road leading to Pale was controlled by the SRK1865 and that the position of the confrontation lines in this area was "very static because the ground was very difficult [and] is very, very steep and closely wooded [so that] the road that went to Pale was a significant boundary for both sides."1866 The Trial Chamber is satisfied that this and the other evidence from a military expert for the Defence, an international journalist and a senior United Nations representative establish beyond reasonable doubt that the SRK operated from the general area of Baba Stijena."
1862. Harding served as a UNMO in Sarajevo from July 1992 to January 1993. Harding, T. 4311.
1863. Harding, T. 4459-60. Harding did not indicate when this attack took place.
1864. Harding, T. 4460. Witness DP11 confirmed that the ABiH frequently attacked this road. Witness DP11, T. 15064.
1865. Harding, T. 4462.
A.Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 277:
"277. The Accused is charged, under Count 3 of the Indictment, with attacks on civilians, a violation of the laws or customs of war, as recognised by Article 51 of Additional Protocol I883 and Article 13 of Additional Protocol II884 to the Geneva Conventions of 1949. The Accused is charged under Count 5 with unlawful attacks on civilian objects, in breach of the laws and customs of war, as recognized by Article 52 of Additional Protocol I885 to the Geneva Conventions, and customary law.
"883. Article 51 of Additional Protocol I provides, in so far as relevant:
"1. The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations. To give effect to this protection, the following rules, which are additional to other applicable rules of international law, shall be observed in all circumstances. 2. The civilian population as such, as well as individual civilians, shall not be the object of attack. ... 3. Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities. 4. Indiscriminate attacks are prohibited. Indiscriminate attacks are: (a) Those which are not directed at a specific military objective; (b) Those which employ a method or means of combat which cannot be directed at a specific military objective; (c) Those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction. 5. Among others, the following types of attacks are to be considered as indiscriminate: (a) An attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects; and (b) An attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated [...] 8. Any violation of these prohibitions shall not release the Parties to the conflict from their legal obligations with respect to the civilian population and civilians, including the obligation to take the precautionary measures provided for in Article 57."
884. Article 13 of Additional Protocol II in its relevant part reads:
"1. The civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations. To give effect to this protection, the following rules shall be observed in all circumstances. 2. The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited. 3. Civilians shall enjoy the protection afforded by this Part, unless and for such time as they take a direct part in hostilities."
885. Article 52 of Additional Protocol I provides:
"1. Civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects which are not military objectives as defined in paragraph 2. 2. Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage. 3. In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used.""
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Decision on Defence Motion Requesting Judgement of Acquittal Pursuant to Rule 98 Bis (TC), 21 June 2004, paras. 49-50:
"49. The Accused is charged with participation in the crime of attacks on civilians, a violation of the laws or customs of war, as recognised by Article 51 of Additional Protocol I and Article 13 of Additional Protocol II. The Prosecution alleges that, even assuming that military objectives were present in the Old Town, in any event, civilian losses in human lives and property caused by the attack were excessive in relation to the concrete and direct military advantage anticipated.70
50. Pursuant to the Tribunals case-law, the crime of attacks on civilians is, as to the actus reus, an attack launched against a civilian population that caused deaths and/or serious bodily injury within that population,71 which, as to the mens rea, must have been conducted "intentionally in the knowledge, or when it was impossible not to know, that civilians were being targeted ".72 The presence of certain non- civilians among the targeted population does not change the character of that population. It must be of a "predominantly civilian nature".73 The following attacks are, among others, prohibited by Article 51: attacks the object of which is "the civilian population as such, as well as individual civilians" (§ 2); indiscriminate attacks, such as those which "are of a nature to strike military objectives and civilians or civilian objects without distinction" (§ 4) and those which "may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated" (§ 5 (b))."
"70. The Prosecution opening statement, T. 263-7.
71. See Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-T, Judgement, 3 March 2000 (hereinafter "Blaskic Trial Judgment"), para. 180, Prosecutor v. Dario Kordic and Mario Cerkez, Case No. IT-95-14/2-T, Judgement, 26 February 2001 (hereinafter "Kordic Trial Judgement"), para. 328 and Prosecutor v. Stanislav Galic, Case No. IT-98-29-T, Judgement, 5 December 2003 (hereinafter "Galic Trial Judgment"), para. 62.
72. See Blaskic Trial Judgement, para. 180. In the Blaskic and Kordic Trial Judgements an additional condition is mentioned, that the attack was launched not through military necessity (Ibid.). The Trial Chamber in the Galic case observed, however, that Article 51 (2) of Additional Protocol I states in clear language that civilians and the civilian population as such should not be the object of attack and does not mention any exceptions, in particular that provision does not contemplate derogating from that rule by invoking military necessity (Ibid., para. 44).
73. See Prosecutor v. Dusko Tadic, Case No. IT-94-1-T, Judgement, 7 May 1997 (hereinafter "Tadic Trial Judgement"), para. 638 and Blaskic Trial Judgement, para. 214."
Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, paras. 56-57:
"56. In sum, the Trial Chamber finds that the crime of attack on civilians is constituted of the elements common to offences falling under Article 3 of the Statute, as well as of the following specific elements:
57. As regards the first element, the Trial Chamber agrees with previous Trial Chambers that indiscriminate attacks, that is to say, attacks which strike civilians or civilian objects and military objectives without distinction, may qualify as direct attacks against civilians.101 It notes that indiscriminate attacks are expressly prohibited by Additional Protocol I.102 This prohibition reflects a well-established rule of customary law applicable in all armed conflicts.103"
101. Other Trial Chambers have found that attacks which employ certain means of combat which cannot discriminate between civilians and civilian objects and military objectives are tantamount to direct targeting of civilians. For example, the Blaskic Trial Chamber inferred from the arms used in an attack carried out against the town of Stari Vitez that the perpetrators of the attack had wanted to target Muslim civilians, since these arms were difficult to guide accurately, their trajectory was "irregular" and non-linear, thus being likely to hit non-military targets. Blaskic Trial Judgement, paras 501, 512. In the Martic Rule 61 proceedings, the Trial Chamber regarded the use of an Orkan rocket with a cluster bomb warhead as evidence of the intent of the accused to deliberately attack the civilian population. The Chamber concluded that "in respect of its accuracy and striking force, the use of the Orkan rocket in this case was not designed to hit military target but to terrorise the civilians of Zagreb. These attacks are therefore contrary to the rules of customary and conventional international law". The Trial Chamber based this finding on the fact that the rocket was inaccurate, it landed in an area with no military objectives nearby, it was used as an antipersonnel weapon launched against the city of Zagreb and the accused indicated he intended to attack the city, Martic Rule 61 Decision, paras 23-31. It is relevant to note that the International Court of Justice has stated, with regard to the obligation of States not to make civilians the object of attack, that "they must consequently never use weapons that are incapable of distinguishing between civilian and military targets". ICJ Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, ICJ Report 1996, para. 78.
102. Article 51(4) of Additional Protocol I prohibits indiscriminate attacks and provides the first conventional definition of indiscriminate attacks. Paragraph (5) of the same provision provides examples of attacks considered to be indiscriminate. The Kupreskic Trial Chamber held, with regard to the prohibition of launching indiscriminate attacks, that "it is nevertheless beyond dispute that at a minimum, large numbers of casualties would have been interspersed among the combatants. The point which needs to be emphasised is the sacrosanct character of the duty to protect civilians". Even if it can be proved that the Muslim population of Ahmici was not entirely civilian but comprised some armed elements, still no justification would exist for widespread and indiscriminate attacks against civilians." Kupreskic Trial Judgement, para. 513. See also Blaskic Trial Judgement, paras 509-10.
103. As recognized by the Appeals Chamber, among the customary rules that have developed to govern both international conflicts and non-international strife is the protection of the civilian population against indiscriminate attacks. Tadic Jurisdiction Decision, para. 127. The Trial Chamber observes that, already in 1922, the Air Warfare Rules enunciated the prohibition on indiscriminate attacks, by providing that 뱖here military objectives were situated so that they could not be bombarded without the indiscriminate bombardment of the civilian population, the aircraft must abstain from the bombardments.?(Article 24 (3), Air Warfare Rules). These rules impose further limits to bombardments by providing in Article 24(4) that "in the immediate neighbourhood of the operations of land forces, the bombardments of cities, towns and villages, dwellings or buildings is legitimate provided that there exists a reasonable presumption that the military concentration is sufficiently important to justify such bombardments, having regard to the danger thus posed to the civilian population? Although these rules were never adopted in legally binding form, they are considered to be an authorative interpretation of the law. (See, e.g., L. Oppenheim, International Law vol II, 7th ed, 1960). The IX Hague Convention concerning Bombing of Naval Forces in Time of War of 1907 also recognized in its Article 12 that collateral civilian casualties might result and urged that precautions be taken to avoid or minimize them. In March 1938, during the Spanish Civil War, the British Prime Minister explained the protest of his country to General Franco over the bombing of Barcelona to members of the House of Commons by stating that "he one definite rule of international law, however, is that direct and deliberate bombing of non-combatants is in all circumstances illegal, and His Majesty Government protest was based on information which led them to the conclusion that the bombardments of Barcelona, carried on apparently random and without special aim at military objectives, was in fact of this nature.?House of Commons Debates, vol. 333, 23 March 1938, col. 1177). In June of that year, in reference to the same conflict, the Prime Minister affirmed before the House of Commons the existence of a rule or principle of international law prescribing that "reasonable care must be taken in attacking?military objectives so that by carelessness a civilian population in the neighbourhood is not bombed." (House of Common Debates, vol. 337, 21 June 1938, cols 937-8). In 1938, the Assembly and the Council of the League of Nations both condemned attacks carried out without sufficient precautions to safeguard the civilian population. The Assembly of the League of Nations expressed the concern that the civilian population be bombarded through negligence by stating, inter alia, that "any attack on legitimate military objectives must be carried out in such a way that civilian population in the neighbourhood are not bombed through negligence". In this same sense, the Council of the League of Nations also adopted a resolution condemning inter alia as "contrary to the conscience of mankind and to the principles of international law air attacks by the insurgents directed "by negligence" against civilian population." In its already cited Resolution 2444 (1968), the UN General Assembly affirmed that among the principles applicable to all armed conflicts was that "distinction must be made at all times between persons taking part in the hostilities and members of the civilian population to the effect that the latter be spared as much as possible." (G.A. Res. 2444, U.N. GAOR, 23rd Session, Supp. No. 18 U.N. Doc A/7218(1968)). Resolution 2675(1970) also stated that "in the conduct of military operations, every effort should be made to spare the civilian populations from the ravages of war, and all necessary precautions should be taken to avoid injury loss or damage to the civilian populations." (G.A. Res. 2675, U.N. GAOR, 25th Session, Supp. No. 28 U.N. Doc A/8028 (1970).
Prosecutor v. Zoran Kuprekić et al., Case No. IT- 95-16-T, Judgement (TC), 14 January 2000, para. 524:
"524. In addition, attacks, even when they are directed against legitimate military targets, are unlawful if conducted using indiscriminate means or methods of warfare, or in such a way as to cause indiscriminate damage to civilians. These principles have to some extent been spelled out in Articles 57 and 58 of the First Additional Protocol of 1977. Such provisions, it would seem, are now part of customary international law, not only because they specify and flesh out general pre-existing norms, but also because they do not appear to be contested by any State, including those which have not ratified the Protocol. Admittedly, even these two provisions leave a wide margin of discretion to belligerents by using language that might be regarded as leaving the last word to the attacking party. Nevertheless this is an area where the elementary considerations of humanity rightly emphasised by the International Court of Justice in the Corfu Channel,776 Nicaragua777 and Legality of the Threat or Use of Nuclear Weapons778 cases should be fully used when interpreting and applying loose international rules , on the basis that they are illustrative of a general principle of international law."
"776. ICJ Reports, 1949, p. 22.
777. ICJ Reports, 1986, p. 112, para. 215.
778. ICJ Reports, 1996, p. 257, para. 79."
Dormann, Elements of War Crimes Sources and Commentary, pp. 137-8:
The ICJ, in its Advisory Opinon on the legality of the threat or use of nuclear wapons, held:
The Corut thus equated the use of indiscriminate weapons with a deliberate attack on civilians. The only existing treaty definition of an indiscriminate weapon may be seen in Art. 51(4)(b) and (c) API describing the characteristics of indiscriminate menas of combat as those:
In the Martic case (Rule 61 proceeding), the ICTY Trial Chamber held in the context of the prohibition on attacking civilians:
In addition to Art. 35(2) API, the Chamber explicitly referred to Arts. 51(4)(b) and 51(5)(b) API.15 With respect to the Prosecutions allegation that, in retaliation for a previous attack, the accused ordered the bombardment of civilians in Zagreb using Orkan rockets delivering cluster bombs, it found:
"14. ICTY, Review of the Indictment, The Prosecutor v. Milan Martic, IT-95-11-R61, 108 ILR 39 at 47, para. 18.
15. Ibid.
16. Ibid., para. 31, pp. 52 ff."
P.5. Evidence with regard to the identity of the perpetrator.
A.Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 284:
"284. The Chamber has already found that on 6 December 1991 there was an attack launched by the JNA forces against the Old Town of Dubrovnik.909 It is also the finding of the Chamber, as recorded earlier, that there were no military objectives within the Old Town and the attack was not launched or maintained in the belief that there were.910"
"909. See supra, paras 99-119 ; 121-145.
910. See supra, paras 193- 194."
P.6. Evidence with regard to the source of the attack.
P.6.1. Evidence with regard to direction of attack.
A.Legal source/authority and evidence:
Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, paras. 257, 264, 270, 454, 466-491, 516, 535, 554:
"257. Considering the location of the tram when it was hit and that it was impacted on the left-hand side in the direction it was travelling, the fact that there was an unobstructed line of sight between the site of the event and the area of the Jewish Cemetery under the SRK control, the approximate distance between these two areas, lead the Trial Chamber to find that the only reasonable conclusion is that the shot which struck the tram was fired from this area held by the SRK."
"264. From the orientation of the bus and of the bullet marks, Ashton concluded that the gunfire originated from the area above the sports stadium in Grbavica.666"
"666. Ashton, T. 1384, 1386. The witness marked direction of fire on a map (P 3645)."
"270. The Trial Chamber considers that the absence of more detailed medical documentation or technical information on the point of entry of the bullet into the bodies of the victims is not crucial for determining the source of fire. Witness J, a police officer from the Novo Sarajevo Public Security Station who conducted an on-site investigation of the event,699 concluded that the shot had been fired from the SRK positions on Ozrenska Street.700 He based his conclusion not only on the common knowledge that snipers operated in that area,701 but also on the fact that the police was unable to immediately access the site of the incident because of on-going shooting from those positions.702 Nafa Taric recalled speaking to five people at the hospital where she was taken who had been injured by sniper fire originating in the area of Ozrenska Street within an hour of the incident in which she and her daughter were wounded.703 DP10 and DP16 testified that the site of the incident was not fully visible from SRK positions in Ozrenska Street.704 However, visual evidence presented to the Trial Chamber demonstrates that there was an unobstructed line of sight from SRK positions on Hrasno Brdo to the location of the incident.705 Taking this into account, the only reasonable inference is that Nafa and Elma Taric were injured by a shot fired from this area.
699. Witness J, T. 8057; D107 (Official report of the 4th Hrasno Police Station) (under seal). He found no bullet fragments at the scene. T. 8057.
700. D107 (Official report of the 4th Hrasno Police Station) (under seal). Hinchliffe took a laser range finder reading of the distance from the area of Tagolavska road, where he saw trenches and which he suspects was the area of the source of fire, to the spot where the victims were wounded to be 700 metres, Hincliffe, T. 12979-81.
701. Witness J, T. 8084.
702. Witness J, T. 8084.
703. Nafa Taric, T. 3195-8.
704. Witness DP10 said that the street where the incident occurred was only partially visible from the SRK positions, since a white building obstructed the line of sight. However, later in his testimony, he admitted that a line of sight did exist, although he said that the part of the intersection that was visible was in fact sheltered by screens, Witness DP10, T. 14373, 14397, 14411-5. Witness DP16 testified that the site of the incident was not visible from SRK lines, Witness DP16, T. 16576.
705. See photograph No. 1 of P3268 (set of photographs of site of incident); P3280I (videotape); P3279H (360 degree photograph of the location of scheduled sniping incident 10).
"454. Weapon specialists indicated that the noise made by the firing of a mortar can be used to determine the approximate direction of fire.1647 Hamill testified that an observer hearing the sound of a mortar being fired "will not [be able] to determine a location, just [a] direction."1648"
1647. Hamill, T. 6193-4; Kovacs, T. 11482-4; P3734 (Shelling report of Richard Higgs dated 12 February 2002).
1648. Hamill, T. 6193-4.
"ii. Range of Fire Related to the Angle of Descent
466. Following a variety of methods, several investigators and experts drew conclusions on the angle of descent of the mortar shell. By measurement and reconstruction of the impact site, and by interpretation of the shrapnels impact pattern, most experts were led to the conclusion that the angle of descent was close to 60 degrees.1676
467.The method of repositioning the tail fin in the tunnel and measurements on the tunnel after extraction of the tail fin have been challenged by Vilicic as unreliable. The Majority accepts that the removal of the tail-fin may have caused some disturbance to the shape of the tunnel. However, the shrapnel imprints recognized by experts as typical for an angle of descent of approximately 60 degrees, as well as the range calculated by Vilicic (55.6 to 62.5 degrees) based on measurements of the elliptical imprints by Sabljica, were not influenced by the disturbance of the tunnel and were consonant with the measurements performed by Zecevic, using a quadrant after having replaced the tailfin. The Majority notes that Zecevic has shown awareness of the possible disturbance of the tunnel and has testified that the lower part of the tunnel was relatively well preserved.
468. In its conclusions, the UN report rejected the measurements of the shells angle of descent (about 80 degrees) made on 5 February 1994 by Verdy who made a mathematical error, ignored the measures made by Russell (68-73 degrees) on the same day, and gives a range of 950 to 1,100 mils (53.4 to 61.9 degrees), which the report emphasised was determined on 11 February 1994.1677 The Majority understands that the UN Report endorsed the findings made by Khan and Hamill although it cautioned that on the basis of the condition of the crater it was not possible to estimate with any "acceptable degree of accuracy" the angle of descent. On this basis, the Majority rejects the measures of the shells angle of descent made by Verdy and Russell and accepts the range determined by Khan and Hamill, which is consistent with the results obtained from calculations based on measurements of earlier investigations.
469. The certain lower limit of the angle of descent is approximately 50 degrees, since at a lesser angle the shell would have collided with the surrounding buildings. On the basis of the evidence presented, the Majority finds that the shells angle of descent was approximately 60 degrees. Allowing for a margin of error of 5 degrees, the Majority finds that the angle of descent was not greater than 65 degrees.
470. The Defence claims that an exact angle of descent should be measured in order to determine whether the shell was fired from ABiH- or SRK-controlled territory. The Majority rejects this claim. Every measurement is by its very nature a measurement within a range. The more precise the measurement, the smaller the margin of error. The Majority considers that its finding as to the angle of decent are based not on one measurement method but on calculations based on the measurement of elliptical imprints, the interpretation of the shrapnel pattern by experts, and on other methods reviewed above. The Majority has also taken into consideration that measurements of a lesser precision were already adjusted to reflect the margin of error.
471. The UN report gives a range of 300 to 5,551 meters as the horizontal distance over which the mortar shell could have travelled. This stated range covers all possible angles of firing and charges.
472. The Majority accepts that from the angle of descent alone it is not possible to calculate the distance a shell travelled.1678 The number of charges (1 to 6) used in addition to the initial (0) charge progressively increase the distance a shell travels.1679
473. Thus a 120 mm mortar shell fired across a level field at an 0+1 charge at a steep angle (85?) and also landing at a steep angle (85.3 degrees) travels horizontally no more than 275 metres, whereas the same shell fired at an 0+6 charge at the same launch angle (85 degrees) and a similar angle of descent (86.2 degrees) travels more than 1,160 metres. If fired at a low angle (45 degrees) with a 0+1 charge the shell travels horizontally no more than 1,574 metres (and lands at around 47.3 degrees ), whereas the same shell fired at an 0+6 charge travels more than 6,400 meters (landing at around 55.6 degrees).1680
474. It was not until the trial stage that both Prosecution and Defence experts introduced into their analyses the relation between the tail-fins penetration into the ground of the market and the speed of the projectile at impact, an element ignored until then by any investigator or expert.
475. The experts reasoning is based upon the following. The depth of penetration of the tail-fin is indicative of the velocity of the shell upon impact. This velocity is of course related to the velocity of the shell at the moment it was fired1681. The velocity at firing depends on the number of increment charges used. As indicated above, the greater the velocity, the greater the distance travelled, where the shells launch angle is kept constant.
476. The mortar shell used in this case exploded on impact. The experts for both parties agree that the explosion creates a backwards thrust against the tail-fin. If the velocity of the shell, and therefore of the tail-fin, on impact had been 150 m/sec (taking the lowest figure presented to the Trial Chamber), the tail-fin would have just fallen to the ground. If the impact velocity was lesser, the tail -fin would have been propelled backwards. If the impact velocity had been greater, the tail-fin would have overcome the backwards thrust and continued forward.
477. In the present case, the tail-fin continued its trajectory in the forward direction at a speed reduced by 150 m/sec, but still sufficient to embed itself in the ground.1682
478. Zecevic estimated that the impact velocity of the shell must have been greater than 200 m/s for the tail-fin to have embedded itself at the depth he measured. In Zecevics opinion, such a velocity can only be achieved by a shell fired at a 0+4 charge or more. At an angle of descent of 65? the shell would have travelled more than 4.5 kilometres on an 0+4 charge. (As the Majority will explain below, even if, by taking the most favourable figures, an impact speed greater than 200 m/s could be achieved by the lower charge 0 + 3, this does not change the final conclusion.)
479. The Majority pauses here to note that Markale market is at an altitude of approximately 550 metres.1683 The confrontation line to the north-east of the market was at an altitude of some 400 metres higher. Continuing in the same direction past the confrontation line, the ground further rose to reach heights of up to 500 to 650 metres above the market at around 2-2. 5 kilometres past the line.
480. As discussed above, Vilicic at first stated that for the tail-fin to embed itself at the depth measured by Zecevic, the shell would have needed an impact velocity of 528.8 m/sec. This speed cannot be achieved by any known mortar. Vilicic based this calculation on the assumption that the ground of impact was of solid concrete for the entire depth of the tail-fins penetration. Confronted with evidence that the market had a top layer of 2 centimetres of asphalt resting on soil consisting of sand and stones,1684 Vilicic then reviewed his calculations and concluded that penetration of 20 cm by the tail -fin would require an impact velocity for the shell of 268.4 m/sec. A 120 mm mortar shell can achieve a speed of approximately 260 m/s if fired at an 0+6 charge and if the altitude of the impact site is 500 metres below the position from which the shell was fired.1685
481. In brief, both experts, basing themselves on a drop angle of 55 to 65 degrees, concluded that an 0+4 or greater charge would be required to attain the impact velocity necessary for the tail-fin to penetrate the ground to the extent it did. At the 65 degrees angle of descent (which is, according to the Majority, the maximum conceivable angle on the evidence), tables provided by both experts show that the horizontal distance the shell would have travelled comes close to 6,000 metres at charge 0+6 and more than 4,500 meters at charge 0+4.1686
482. It follows that the shell which exploded in Markale market travelled a distance considerably greater than 2,600 metres from the north-east direction, placing the position from which the shell was fired well within SRK-controlled territory.
483. Noting however that the Defence disputes the measure of the depth of penetration of the tail-fin in the ground, submitting that an error in that measure could lead to serious miscalculation of the range of fire, the Majority, out of an abundance of caution, will consider the possibility that the tail-fin penetrated the soil to a lesser depth than the one found by Zecevic and that the shell was fired with an 0+3 increment charge, and therefore that the shell travelled a shorter distance than the one determined above.
484. The Majority recalls briefly that on the day of the incident, Sabljica and Cavcic did not measure the depth of penetration of the tail-fin in the ground but measured a 9-centimetre deep crater. The day after the incident, Zecevic and his colleagues measured the depth of penetration of the tail-fin in the ground from the top asphalt layer to the bottom of the tunnel where the tail-fin had been embedded to be 200 to 250 mm, depending on the side of the hole measured. The UN representatives did not measure the depth of penetration of the tail-fin in the ground giving the reason that such a measurement should have been taken right after the tail-fin was removed from the ground of Markale market. However, Dubant noticed that during his crater examination conducted on 11 February 1994, the crater was still sharply defined and was 11 centimetres deep. There is no evidence in the Trial Record which casts doubt on the measurements made by the local investigative teams. The Majority is convinced that the crater caused by the explosion was approximately 9 centimetres deep and that the depth of the tunnel of the tail-fin and the depth of the crater were together 200-250 mm.
485. The Majority will allow that the shell which struck Markale market impacted on ground consisting of a mixture of soil and stones, thus ignoring the force that would have been required to overcome the higher level of resistance presented by a top layer of asphalt. This favours the Defence case. The Majority also uses the most conservative measurement of the depth of the tail-fins penetration, taking the length to be 10 cm. This, again, favours the Defence case.
486. To penetrate 10 cm of ground consisting of soil and stones, the tail-fin would need a post-explosion velocity of 57 m/sec.1687 This gives a shell impact velocity of 150+57=207 m/sec.
487. The firing velocity of a shell on an 0+3 charge is 211 m/s1688. The Majority understands from the evidence of the experts that the impact velocity of a shell fired over a level field is slightly less than its velocity at firing. A shell fired at the 0+3 charge will lose about 30 m/s of its velocity between firing and impact. However, where the altitude of the impact site is less than that of the firing site, the shell will also gain about 30 m/s from having a longer drop trajectory. As always, in choosing these figures1689 the Majority has interpreted the evidence in a fashion favourable to the Defence case.
488. A shell on an 0+3 charge fired over the height differential applicable in this case would have an impact velocity of around 211 m/s. This would be just sufficient for the tail-fin to embed itself to the stipulated depth. But it would also mean that, at a drop angle of 65 degrees, and taking into account a difference in altitude of 400 metres, the shell would have still travelled about 3.6 km from its point of origin to its point of impact. Once again, this places the point of origin well within SRK-controlled territory.
489. This further consideration assures the Majority that the experts findings are buffered by a large margin of safety. There is no doubt that, given the characteristics of the remains of the explosion of the 120 mm mortar shell at Markale market, the shell could not have been fired from any place on the ABiH side of the confrontation lines in a direction north-northeast of Markale market.
490. Finally, the Majority notes that a shell fired at the 0+2 charge1690 could not attain the required velocity over the given height differential for its tail-fin to penetrate the surface of Markale market to the measured extent.
iii. Non-technical Evidence in relation to the Source of Fire
491. The Majority also emphasises that non-technical evidence supports the finding that a heavy weapon was fired from the direction north-northeast of Markale market from SRK-controlled territory at the time of the incident. The Trial Chamber finds reliable the testimony of Witness AF who heard at the time of the incident the sound of a heavy weapon being fired from behind an SRK position, Spicasta Stijena, at Mrkovici. The fact that Witness AF was at his mothers house in Sedrenik when he heard that sound and not at his place in Vratnik does not cast doubt on his ability to assert a direction. The Majority is convinced by the evidence in the Trial Record, which establishes that the noise made by a firing mortar can be used to determine the approximate direction of fire."
"1676. Khan, 56-62 degrees, Hamill, 53-62 degrees; Zecevic Ballistic Report, 55-65 degrees; Vilicic Shelling Report, 55,6-62,5 degrees.
1677. The Majority notes that the UN report does not include the statement of Russell (the statements of the Frebat team, Verdy, Khan, Hamill, Grande and Dubant are included) and gives no reason for that ommission.
1678. It appears from the tables of fire attached to Vilicic Report that angles of descent are in some relation with angles of firing. In fact, decreasing the firing angle by one degree when closer to 90 degrees results in far greater distance gained than decreasing the firing angle by one degree when closer to 45 degrees. Therefore, upward changes of the firing angle in the area considered (between 50 and 65 degrees) increase the traveling distance much less than similar changes around the firing angle of 85 degrees.
1679. If the angle of firing remains unchanged.
1680. Table 2 in Vilicic Shelling Report.
1681. That a higher velocity at firing results in a higher velocity at impact is not only a fact of common knowledge but also clearly illustrated in Table 2 in Vilicic Shelling Report.
1682. The tail-fin of the mortar shell was found embedded in the ground; the UN team used a knife to remove the tail-fin from the ground. See the evidence above in relation to investigation by the UN and the local investigative team.
1683. Vilicic testified that the altitude of the Markale market was at 600 meters. Maps in evidence that contain contour lines indicate a slightly lesser altitude. Similarly Vilicic testified that no elevation higher than 1000 meters existed in the northerly direction up to Mrkovici, which is also contradicted by the maps, indicating elevations of above 1000 metres in and around locations called Gornji Mrkovici and Donji Mrkovici.
1684. C9 mentions "ground and stone".
1685. P3276.1 (Zecevic Shelling Report).
1686. Based on comparison of the tables in Zecevic Shelling Report, p. 6 and C8, C9.
1687. C8, C9.
1688. Table on p. 6 of Zecevic Ballistic Report, this value is more favorable to the Defence case than the value of 219 m/sec for V? given by Vilicic.
1689. The Majority took the most favourable figures from table 2 in Vilicic Shelling Report and C5: the loss of speed in flight was taken at minimum level, while the increase of speed caused by the difference of altitude was taken at a level, consistent with firing at an 0+3 charge, at a difference of altitude of 500 meters, both options resulting in a possibly higher speed of impact when firing at this lower charge.
1690. The velocity at firing at a 0+2 charge is approximately 40m/sec lower compared to firing at a 0+3 charge which velocity could not generate the velocity at impact needed to explain the embedment of the tailfin in the ground. But even if fired at a 0+2 level the shell would have been fired at a distance of 2577 m, which would still be approximately at the SRK-held confrontation line."
"516. According to witnesses who belonged to the latter army, SRK soldiers in the area did not fire at civilians,1783 but the Majority notes that evidence from other witnesses from a wide variety of backgrounds, including a senior UN representative in Sarajevo and residents of the city, indicates that civilians in ABiH-controlled territory in the vicinity of Spicasta Stijena regularly experienced being shot at.1784 Based on this last evidence, the unobstructed line of sight to Spicasta Stijena as well as the shooting which was directed at the car transporting Witness E to hospital and which came from the direction of this ridge, the Majority is satisfied that the bullet which injured Witness E was fired from the area of Spicasta Stijena. The Majority accepts in particular that since Witness E was kneeling and facing the ridge while playing with flowers, her posture would have caused her back to arch slightly, so that the bullet fired from Spicasta Stijena entered the upper part of her back before exiting through a lower region of her body."
"1783. Nikolic, T. 16002-3, 16049 and 16091-2; DP53, T. 16184; DP34, T. 17892; Knezevic, T. 18962-3.
1784. Thomas, T. 9325-6; ?ehbajraktarevic, T. 1792; Witness AF, T. 5485-6, 5490 and 5499; Jusovic, T. 4147-8 and Ocuz, T. 4176-7."
"535. Both parents believed that the bullet that had injured their daughter had been fired from a ridge known as Baba Stijena, because that location was visible from their house and was controlled by the SRK.1895 Two photographs and a video taken from the front door of the Pitas house show this entrance to be completely walled in by neighbouring houses and structures such as fences, offering only a narrow line of sight in the direction of Baba Stijena.1896 [ ] Hinchliffe measured the distance from Anisa Pitas house to Baba Stijena to be 895 metres1898 and maps tendered by the Defence in relation to this incident indicate that distance to be on the order of 900 metres.1899 The Trial Chamber also notes that the Defence argued that no medical documents were tendered which would "provide information about the position of entry-and-exit wound on the leg of Anisa Pita, or which would provide the possibility to determine the direction of wound canal, including the angle and the direction from where the bullet came from."1900 Nonetheless, based on the approximate distance of 900 metres and the existence of a line of sight from the Pitas front entrance only in the direction of Baba Stijena, the Majority is satisfied beyond reasonable doubt that Anisa Pita was injured by a shot fired from the area of that ridge."
"1895. Ekrem Pita, T. 3990-1 and 4001; Fatima Pita, T. 5879 and 5899-5900; P3280P (video of the location of scheduled incident number 2). Fatima Pita had also seen firing, mostly in the form of shelling, originating from the area of Baba Stijena at night when she left her cellar to go to the bathroom on the ground floor of her house, Fatima Pita, T. 5918 and 5925.
1896. P3266 (photograph taken from the location of scheduled incident number 2); P3279P (360 degree photograph of location of scheduled incident number 2); P3280P (video taken from the location scheduled incident number 2). A picture taken from the entrance to the Pitas house shows that a small tree lies in the direction of Baba Stijena, partially blocking the line of sight. P3267 (Photograph taken from entrance to the Pitas house). Ekrem Pita explained though that this tree was planted after the incident, Ekrem Pita, T. 3992.
1897. P3704 (Map of Sarajevo); Van Lynden, T. 2103; D1925 (Report by Defence military expert Radovan Radinovic).
1898. Hinchliffe, T. 12946. Ekrem Pita thought that the distance from his house to Baba Stijena was somewhere between 350 and 1,200 metres as the crow flies, but was unsure, Ekrem Pita, T. 3991 and 4003. Fatima Pita for her part estimated that distance to be between 200 and 300 metres, Fatima Pita, T. 5879.
1899. The Pitas house is separated from Baba Stijena by 5 centimetres on D49 (Map marked by Ekrem Pita). Although no scale is explicitly indicated on this map, the gridding appearing thereon would suggest that a measurement of 5.5 centimetres corresponds to 1,000 metres in actual distance D49 (Map marked by Ekrem Pita). Map D49 thus appears to indicate that the actual distance between the Pitas house and Baba Stijena is approximately (1,000/5.5) x 5 = 909 metres, Ekrem Pita, T. 3991 and 4003.
1900. Defence Final Trial Brief, para. 72. See also Acquittal Motion, para. 32."
"554. The Defence argues that it is not possible to determine the source of fire1971 because no on-site investigations were carried out to determine "the angle of descent in which the projectile, or part of the projectile, entered the body of Vildana Kapur".1972 The Trial Chamber does not consider the absence of on-site investigations or technical data concerning the point of entry of a bullet into the body critical to a determination of the source of fire. Sahic testified that she could see the SRK front line from Stara Cesta Street and that often the Stara Cesta Street area was targeted.1973 That front line was in the area north of Stara Cesta Street called Poljine, at a distance of approximately 300-400 metres from the spot where Vildana Kapur was shot.1974 Periodically, flashes of gunfire would be seen coming from Poljine.1975 Sahic further testified that on the day of the shooting, while she and her girlfriends were walking on Stara Cesta Street, the machine-gun flashes were visible in front of them on the SRK side of confrontation lines.1976 On the 360 degree photograph of the area where the shooting occurred, she pointed out a group of white houses beneath a rocky ridge with a dome on it where the shots had come from.1977 [ ] The Trial Chamber has no reason not to believe that Sahic was in a position to determine where the bullets striking the ground around her and her girlfriends came from. The Trial Chamber is satisfied beyond reasonable doubt that the bullet which wounded Vildana Kapur was fired from SRK-held territory."
"1971. Defence Final Trial Brief, para. 156.
1972. Id.
1973. [ahic, T. 2595.
1974. D153, D1793.
1975. Sahic, T. 2595.
1976. Sahic, T. 2595.
1977. Sahic, T. 2624."
P.6.2. Evidence of military presence in a particular area from which the attack was directed.
A.Legal source/authority and evidence:
Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, para. 294-295, 354, 511-512, 528, 530 :
"294. During trial, a considerable amount of evidence was tendered with regard to that group of buildings in Nedarici known as the "Institute for the Blind", allegedly a major source of fire in SRK-held territory against civilians of the surrounding areas. Witnesses marked the confrontation line on a map in court as going south along Lukavicka Cesta street from the intersection where the Institute for the Blind is located.807
295. [ ] With reference to the previous day, an"UNMO BH Command" report dated 13 July 1994 stated that the commander of 1st Battalion of the SRK Ilidza Brigade admitted that sniping did originate from Bravo PAPA 859578 ("House for the Blind People"), and "promised that there would be no more sniping from that place."812"
"807. Fajko Kadric, T. 3789-90; P3108 (map of the area); Faruk Kadric, T. 3742-3, showing the confrontation lines on D47, map of the area; however, the witness testified that he couldnt actually see the confrontation lines. All the buildings in front of the "blind Institute and the institute for children were destroyed", as those "below the institute for blind children, the Branka Bujica Street" (area marked on the map as Oslobodjenje-Studenski Dom, Zavod za Slijepe, Dom Penzionera). See also Kucanin, T. 4542, P3644.MK1 (map marked by witness). Faruk Kadric traced another confrontation line along Aleja Branca Bujica (now Aleja Bosne Srebrene), from Ante Babica street up the "Home for the Blind Children", D47 (map of the area marked by witness); Faruk Kadric, T. 3742-3. Witness DP4 marked Aleja Branca Bujica as SRK territory under constant fire from the ABiH; Witness DP4, T. 14137. [ ]
812. P2759 (UNMO report), page 4, para. 24; Witness DP17, T. 16856-61."
"354. The evidence remains uncontradicted that the area of the Orthodox Church from where the fire came from was within SRK-controlled territory.1129 The Trial Chamber is satisfied beyond reasonable doubt that the Orthodox Church area, Dobrinja IV, was controlled by SRK forces."
"1129. As mentioned above, the confrontation line at the eastern part of Dobrinja were along a street separating Dobrinja I and IV from Dobrinja II and III B and the buildings of Dobrinja IV and the Orthodox Church were placed within SRK-held territory, Dzevlan, T. 3516; Karavelic, T. 11816, P3728 (electronic map marked by Vahid Karavelic); P3732 (map marked by Ismet Hadzic); DP9, T. 14459, 14464, 14496; D1770 (map marked by witness); D1771 (electronic map marked by DP9)."
"511. The Trial Chamber heard uncontested testimonies to the effect that Spicasta Stijena was under the control of the SRK during the conflict. Witness DP53 and Vaso Nikolic, both SRK soldiers,1751 testified that they were sometimes posted in the immediate vicinity of Spicasta Stijena.1752 They explained that SRK troops manned trenches and an observation post there, from which soldiers could peer into certain sections of Sedrenik,1753 while the closest ABiH frontline lay approximately 50 metres below the ridgeline.1754 Witness DP20, also an SRK soldier,1755 occasionally went to this area1756 and confirmed that the SRK had deployed troops at Spicasta Stijena.1757 There was ongoing fighting between the ABiH and the SRK in this area1758 and in April 1993 for example, the ABiH captured an SRK trench on the ridgeline.1759 The SRK recaptured that trench a few days thereafter however1760 and overall the confrontation lines in the area did not change throughout the conflict except in limited instances.1761
512. Witnesses who did not belong to the SRK corroborated this evidence. Major Francis Thomas, a representative of the United Nations,1762 recalled visiting trenches belonging to the SRK near Spicasta Stijena.1763 Witness E, a resident of Sedrenik,1764 concluded that the SRK controlled the ridgeline based on the shouts and expletives which she could hear coming from there.1765 Nazija Ocuz, another resident of Sedrenik,1766 testified that she too believed that the SRK controlled Spicasta Stijena because she had seen two SRK soldiers arguing there during the conflict.1767"
"1751. Witness DP53, T. 16114-5; Nikolic, T. 15962.
1752. Witness DP53, T. 16165, 16169, 16177-8; Nikolic, T. 15961-2 and 15981.
1753. Witness DP53, T. 16170 and 16178; Nikolic, T. 15981.
1754. Witness DP53, T. 16153; Nikolic, T. 15982.
1755. Witness DP20, T. 15517.
1756. Witness DP20, T. 15777.
1757. Witness DP20, T. 15770-1.
1758. Witness DP53, T. 16144; Nikolic, T. 15975.
1759. Witness DP53, T. 16152-3; Nikolic, T. 15980 and 16005.
1760. Witness DP53, T. 16155.
1761. Witness DP53, T. 16124. One of the consequences of this ongoing fighting was that the trees on the ridgeline were damaged and felled as the conflict wore on, Witness DP53, T. 16194-5.
1762. Thomas, T. 9255.
1763. Thomas, T. 9325.
1764. Witness E, T. 4033.
1765. Witness E, T. 4067 and 4072-3.
1766. Ocuz, T. 4164.
1767. Ocuz, T. 4166 and 4188. "
"528. Maps marked by soldiers of both the SRK and the ABiH indicate that the two armies faced each other along a confrontation line located in the south-eastern quadrant of Sarajevo, with the ABiH controlling the northern base of Mount Trebevic.1842 Testimonies heard by the Trial Chamber corroborated this evidence. DP1, who provided humanitarian relief for the Serb population living in Sarajevo during the conflict,1843 explained that one of his acquaintances had dug trenches at the foot of Mount Trebevic for the ABiH.1844 Akif Mukanovic, a soldier of the ABiH deployed in that area,1845 confirmed the existence of such trenches.1846"
1842. D1778 (Map marked by Witness DP11); D1809 (Map marked by Witness DP16); P3728 (Map related to scheduled sniping incident number 11 marked by Vahid Karavelic).
1843. Witness DP1, T. 13252-3.
1844. Witness DP1, T. 13342 and 13346.
1845. Mukanovic, T. 3097.
1846. Mukanovic, T. 3097. 3099.
"530. In particular, Carl Harding, a UNMO serving in Sarajevo at the time Anisa Pita was shot,1862 explained that, except for one instance when the ABiH occupied a part of this road for a "short while"1863 before retreating,1864 the road leading to Pale was controlled by the SRK1865 and that the position of the confrontation lines in this area was "very static because the ground was very difficult [and] is very, very steep and closely wooded [so that] the road that went to Pale was a significant boundary for both sides."1866 The Trial Chamber is satisfied that this and the other evidence from a military expert for the Defence, an international journalist and a senior United Nations representative establish beyond reasonable doubt that the SRK operated from the general area of Baba Stijena."
1862. Harding served as a UNMO in Sarajevo from July 1992 to January 1993. Harding, T. 4311.
1863. Harding, T. 4459-60. Harding did not indicate when this attack took place.
1864. Harding, T. 4460. Witness DP11 confirmed that the ABiH frequently attacked this road. Witness DP11, T. 15064.
1865. Harding, T. 4462.
A.Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 277:
"277. The Accused is charged, under Count 3 of the Indictment, with attacks on civilians, a violation of the laws or customs of war, as recognised by Article 51 of Additional Protocol I883 and Article 13 of Additional Protocol II884 to the Geneva Conventions of 1949. The Accused is charged under Count 5 with unlawful attacks on civilian objects, in breach of the laws and customs of war, as recognized by Article 52 of Additional Protocol I885 to the Geneva Conventions, and customary law.
"883. Article 51 of Additional Protocol I provides, in so far as relevant:
"1. The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations. To give effect to this protection, the following rules, which are additional to other applicable rules of international law, shall be observed in all circumstances. 2. The civilian population as such, as well as individual civilians, shall not be the object of attack. ... 3. Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities. 4. Indiscriminate attacks are prohibited. Indiscriminate attacks are: (a) Those which are not directed at a specific military objective; (b) Those which employ a method or means of combat which cannot be directed at a specific military objective; (c) Those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction. 5. Among others, the following types of attacks are to be considered as indiscriminate: (a) An attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects; and (b) An attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated [...] 8. Any violation of these prohibitions shall not release the Parties to the conflict from their legal obligations with respect to the civilian population and civilians, including the obligation to take the precautionary measures provided for in Article 57."
884. Article 13 of Additional Protocol II in its relevant part reads:
"1. The civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations. To give effect to this protection, the following rules shall be observed in all circumstances. 2. The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited. 3. Civilians shall enjoy the protection afforded by this Part, unless and for such time as they take a direct part in hostilities."
885. Article 52 of Additional Protocol I provides:
"1. Civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects which are not military objectives as defined in paragraph 2. 2. Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage. 3. In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used.""
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Decision on Defence Motion Requesting Judgement of Acquittal Pursuant to Rule 98 Bis (TC), 21 June 2004, paras. 49-50:
"49. The Accused is charged with participation in the crime of attacks on civilians, a violation of the laws or customs of war, as recognised by Article 51 of Additional Protocol I and Article 13 of Additional Protocol II. The Prosecution alleges that, even assuming that military objectives were present in the Old Town, in any event, civilian losses in human lives and property caused by the attack were excessive in relation to the concrete and direct military advantage anticipated.70
50. Pursuant to the Tribunals case-law, the crime of attacks on civilians is, as to the actus reus, an attack launched against a civilian population that caused deaths and/or serious bodily injury within that population,71 which, as to the mens rea, must have been conducted "intentionally in the knowledge, or when it was impossible not to know, that civilians were being targeted ".72 The presence of certain non- civilians among the targeted population does not change the character of that population. It must be of a "predominantly civilian nature".73 The following attacks are, among others, prohibited by Article 51: attacks the object of which is "the civilian population as such, as well as individual civilians" (§ 2); indiscriminate attacks, such as those which "are of a nature to strike military objectives and civilians or civilian objects without distinction" (§ 4) and those which "may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated" (§ 5 (b))."
"70. The Prosecution opening statement, T. 263-7.
71. See Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-T, Judgement, 3 March 2000 (hereinafter "Blaskic Trial Judgment"), para. 180, Prosecutor v. Dario Kordic and Mario Cerkez, Case No. IT-95-14/2-T, Judgement, 26 February 2001 (hereinafter "Kordic Trial Judgement"), para. 328 and Prosecutor v. Stanislav Galic, Case No. IT-98-29-T, Judgement, 5 December 2003 (hereinafter "Galic Trial Judgment"), para. 62.
72. See Blaskic Trial Judgement, para. 180. In the Blaskic and Kordic Trial Judgements an additional condition is mentioned, that the attack was launched not through military necessity (Ibid.). The Trial Chamber in the Galic case observed, however, that Article 51 (2) of Additional Protocol I states in clear language that civilians and the civilian population as such should not be the object of attack and does not mention any exceptions, in particular that provision does not contemplate derogating from that rule by invoking military necessity (Ibid., para. 44).
73. See Prosecutor v. Dusko Tadic, Case No. IT-94-1-T, Judgement, 7 May 1997 (hereinafter "Tadic Trial Judgement"), para. 638 and Blaskic Trial Judgement, para. 214."
Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, paras. 56-57:
"56. In sum, the Trial Chamber finds that the crime of attack on civilians is constituted of the elements common to offences falling under Article 3 of the Statute, as well as of the following specific elements:
1. Acts of violence directed against the civilian population or individual civilians not taking direct part in hostilities causing death or serious injury to body or health within the civilian population.
2. The offender wilfully made the civilian population or individual civilians not taking direct part in hostilities the object of those acts of violence.
57. As regards the first element, the Trial Chamber agrees with previous Trial Chambers that indiscriminate attacks, that is to say, attacks which strike civilians or civilian objects and military objectives without distinction, may qualify as direct attacks against civilians.101 It notes that indiscriminate attacks are expressly prohibited by Additional Protocol I.102 This prohibition reflects a well-established rule of customary law applicable in all armed conflicts.103"
101. Other Trial Chambers have found that attacks which employ certain means of combat which cannot discriminate between civilians and civilian objects and military objectives are tantamount to direct targeting of civilians. For example, the Blaskic Trial Chamber inferred from the arms used in an attack carried out against the town of Stari Vitez that the perpetrators of the attack had wanted to target Muslim civilians, since these arms were difficult to guide accurately, their trajectory was "irregular" and non-linear, thus being likely to hit non-military targets. Blaskic Trial Judgement, paras 501, 512. In the Martic Rule 61 proceedings, the Trial Chamber regarded the use of an Orkan rocket with a cluster bomb warhead as evidence of the intent of the accused to deliberately attack the civilian population. The Chamber concluded that "in respect of its accuracy and striking force, the use of the Orkan rocket in this case was not designed to hit military target but to terrorise the civilians of Zagreb. These attacks are therefore contrary to the rules of customary and conventional international law". The Trial Chamber based this finding on the fact that the rocket was inaccurate, it landed in an area with no military objectives nearby, it was used as an antipersonnel weapon launched against the city of Zagreb and the accused indicated he intended to attack the city, Martic Rule 61 Decision, paras 23-31. It is relevant to note that the International Court of Justice has stated, with regard to the obligation of States not to make civilians the object of attack, that "they must consequently never use weapons that are incapable of distinguishing between civilian and military targets". ICJ Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, ICJ Report 1996, para. 78.
102. Article 51(4) of Additional Protocol I prohibits indiscriminate attacks and provides the first conventional definition of indiscriminate attacks. Paragraph (5) of the same provision provides examples of attacks considered to be indiscriminate. The Kupreskic Trial Chamber held, with regard to the prohibition of launching indiscriminate attacks, that "it is nevertheless beyond dispute that at a minimum, large numbers of casualties would have been interspersed among the combatants. The point which needs to be emphasised is the sacrosanct character of the duty to protect civilians". Even if it can be proved that the Muslim population of Ahmici was not entirely civilian but comprised some armed elements, still no justification would exist for widespread and indiscriminate attacks against civilians." Kupreskic Trial Judgement, para. 513. See also Blaskic Trial Judgement, paras 509-10.
103. As recognized by the Appeals Chamber, among the customary rules that have developed to govern both international conflicts and non-international strife is the protection of the civilian population against indiscriminate attacks. Tadic Jurisdiction Decision, para. 127. The Trial Chamber observes that, already in 1922, the Air Warfare Rules enunciated the prohibition on indiscriminate attacks, by providing that 뱖here military objectives were situated so that they could not be bombarded without the indiscriminate bombardment of the civilian population, the aircraft must abstain from the bombardments.?(Article 24 (3), Air Warfare Rules). These rules impose further limits to bombardments by providing in Article 24(4) that "in the immediate neighbourhood of the operations of land forces, the bombardments of cities, towns and villages, dwellings or buildings is legitimate provided that there exists a reasonable presumption that the military concentration is sufficiently important to justify such bombardments, having regard to the danger thus posed to the civilian population? Although these rules were never adopted in legally binding form, they are considered to be an authorative interpretation of the law. (See, e.g., L. Oppenheim, International Law vol II, 7th ed, 1960). The IX Hague Convention concerning Bombing of Naval Forces in Time of War of 1907 also recognized in its Article 12 that collateral civilian casualties might result and urged that precautions be taken to avoid or minimize them. In March 1938, during the Spanish Civil War, the British Prime Minister explained the protest of his country to General Franco over the bombing of Barcelona to members of the House of Commons by stating that "he one definite rule of international law, however, is that direct and deliberate bombing of non-combatants is in all circumstances illegal, and His Majesty Government protest was based on information which led them to the conclusion that the bombardments of Barcelona, carried on apparently random and without special aim at military objectives, was in fact of this nature.?House of Commons Debates, vol. 333, 23 March 1938, col. 1177). In June of that year, in reference to the same conflict, the Prime Minister affirmed before the House of Commons the existence of a rule or principle of international law prescribing that "reasonable care must be taken in attacking?military objectives so that by carelessness a civilian population in the neighbourhood is not bombed." (House of Common Debates, vol. 337, 21 June 1938, cols 937-8). In 1938, the Assembly and the Council of the League of Nations both condemned attacks carried out without sufficient precautions to safeguard the civilian population. The Assembly of the League of Nations expressed the concern that the civilian population be bombarded through negligence by stating, inter alia, that "any attack on legitimate military objectives must be carried out in such a way that civilian population in the neighbourhood are not bombed through negligence". In this same sense, the Council of the League of Nations also adopted a resolution condemning inter alia as "contrary to the conscience of mankind and to the principles of international law air attacks by the insurgents directed "by negligence" against civilian population." In its already cited Resolution 2444 (1968), the UN General Assembly affirmed that among the principles applicable to all armed conflicts was that "distinction must be made at all times between persons taking part in the hostilities and members of the civilian population to the effect that the latter be spared as much as possible." (G.A. Res. 2444, U.N. GAOR, 23rd Session, Supp. No. 18 U.N. Doc A/7218(1968)). Resolution 2675(1970) also stated that "in the conduct of military operations, every effort should be made to spare the civilian populations from the ravages of war, and all necessary precautions should be taken to avoid injury loss or damage to the civilian populations." (G.A. Res. 2675, U.N. GAOR, 25th Session, Supp. No. 28 U.N. Doc A/8028 (1970).
Prosecutor v. Zoran Kuprekić et al., Case No. IT- 95-16-T, Judgement (TC), 14 January 2000, para. 524:
"524. In addition, attacks, even when they are directed against legitimate military targets, are unlawful if conducted using indiscriminate means or methods of warfare, or in such a way as to cause indiscriminate damage to civilians. These principles have to some extent been spelled out in Articles 57 and 58 of the First Additional Protocol of 1977. Such provisions, it would seem, are now part of customary international law, not only because they specify and flesh out general pre-existing norms, but also because they do not appear to be contested by any State, including those which have not ratified the Protocol. Admittedly, even these two provisions leave a wide margin of discretion to belligerents by using language that might be regarded as leaving the last word to the attacking party. Nevertheless this is an area where the elementary considerations of humanity rightly emphasised by the International Court of Justice in the Corfu Channel,776 Nicaragua777 and Legality of the Threat or Use of Nuclear Weapons778 cases should be fully used when interpreting and applying loose international rules , on the basis that they are illustrative of a general principle of international law."
"776. ICJ Reports, 1949, p. 22.
777. ICJ Reports, 1986, p. 112, para. 215.
778. ICJ Reports, 1996, p. 257, para. 79."
Dormann, Elements of War Crimes Sources and Commentary, pp. 137-8:
The ICJ, in its Advisory Opinon on the legality of the threat or use of nuclear wapons, held:
The Corut thus equated the use of indiscriminate weapons with a deliberate attack on civilians. The only existing treaty definition of an indiscriminate weapon may be seen in Art. 51(4)(b) and (c) API describing the characteristics of indiscriminate menas of combat as those:
(b) which employ a means of combat which cannot be directed at a specific military objective; or
(c) which employ a menas of combat the effects of which cannot be limited as required by this Protocol;
and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.
In the Martic case (Rule 61 proceeding), the ICTY Trial Chamber held in the context of the prohibition on attacking civilians:
In addition to Art. 35(2) API, the Chamber explicitly referred to Arts. 51(4)(b) and 51(5)(b) API.15 With respect to the Prosecutions allegation that, in retaliation for a previous attack, the accused ordered the bombardment of civilians in Zagreb using Orkan rockets delivering cluster bombs, it found:
"14. ICTY, Review of the Indictment, The Prosecutor v. Milan Martic, IT-95-11-R61, 108 ILR 39 at 47, para. 18.
15. Ibid.
16. Ibid., para. 31, pp. 52 ff."
P.7. Evidence with regard to the identity of the perpetrator.
A.Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 284:
"284. The Chamber has already found that on 6 December 1991 there was an attack launched by the JNA forces against the Old Town of Dubrovnik.909 It is also the finding of the Chamber, as recorded earlier, that there were no military objectives within the Old Town and the attack was not launched or maintained in the belief that there were.910"
"909. See supra, paras 99-119 ; 121-145.
910. See supra, paras 193- 194."
P.8. Evidence with regard to the source of the attack.
P.8.1. Evidence with regard to direction of attack.
A.Legal source/authority and evidence:
Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, paras. 257, 264, 270, 454, 466-491, 516, 535, 554:
"257. Considering the location of the tram when it was hit and that it was impacted on the left-hand side in the direction it was travelling, the fact that there was an unobstructed line of sight between the site of the event and the area of the Jewish Cemetery under the SRK control, the approximate distance between these two areas, lead the Trial Chamber to find that the only reasonable conclusion is that the shot which struck the tram was fired from this area held by the SRK."
"264. From the orientation of the bus and of the bullet marks, Ashton concluded that the gunfire originated from the area above the sports stadium in Grbavica.666"
"666. Ashton, T. 1384, 1386. The witness marked direction of fire on a map (P 3645)."
"270. The Trial Chamber considers that the absence of more detailed medical documentation or technical information on the point of entry of the bullet into the bodies of the victims is not crucial for determining the source of fire. Witness J, a police officer from the Novo Sarajevo Public Security Station who conducted an on-site investigation of the event,699 concluded that the shot had been fired from the SRK positions on Ozrenska Street.700 He based his conclusion not only on the common knowledge that snipers operated in that area,701 but also on the fact that the police was unable to immediately access the site of the incident because of on-going shooting from those positions.702 Nafa Taric recalled speaking to five people at the hospital where she was taken who had been injured by sniper fire originating in the area of Ozrenska Street within an hour of the incident in which she and her daughter were wounded.703 DP10 and DP16 testified that the site of the incident was not fully visible from SRK positions in Ozrenska Street.704 However, visual evidence presented to the Trial Chamber demonstrates that there was an unobstructed line of sight from SRK positions on Hrasno Brdo to the location of the incident.705 Taking this into account, the only reasonable inference is that Nafa and Elma Taric were injured by a shot fired from this area.
699. Witness J, T. 8057; D107 (Official report of the 4th Hrasno Police Station) (under seal). He found no bullet fragments at the scene. T. 8057.
700. D107 (Official report of the 4th Hrasno Police Station) (under seal). Hinchliffe took a laser range finder reading of the distance from the area of Tagolavska road, where he saw trenches and which he suspects was the area of the source of fire, to the spot where the victims were wounded to be 700 metres, Hincliffe, T. 12979-81.
701. Witness J, T. 8084.
702. Witness J, T. 8084.
703. Nafa Taric, T. 3195-8.
704. Witness DP10 said that the street where the incident occurred was only partially visible from the SRK positions, since a white building obstructed the line of sight. However, later in his testimony, he admitted that a line of sight did exist, although he said that the part of the intersection that was visible was in fact sheltered by screens, Witness DP10, T. 14373, 14397, 14411-5. Witness DP16 testified that the site of the incident was not visible from SRK lines, Witness DP16, T. 16576.
705. See photograph No. 1 of P3268 (set of photographs of site of incident); P3280I (videotape); P3279H (360 degree photograph of the location of scheduled sniping incident 10).
"454. Weapon specialists indicated that the noise made by the firing of a mortar can be used to determine the approximate direction of fire.1647 Hamill testified that an observer hearing the sound of a mortar being fired "will not [be able] to determine a location, just [a] direction."1648"
1647. Hamill, T. 6193-4; Kovacs, T. 11482-4; P3734 (Shelling report of Richard Higgs dated 12 February 2002).
1648. Hamill, T. 6193-4.
"ii. Range of Fire Related to the Angle of Descent
466. Following a variety of methods, several investigators and experts drew conclusions on the angle of descent of the mortar shell. By measurement and reconstruction of the impact site, and by interpretation of the shrapnels impact pattern, most experts were led to the conclusion that the angle of descent was close to 60 degrees.1676
467.The method of repositioning the tail fin in the tunnel and measurements on the tunnel after extraction of the tail fin have been challenged by Vilicic as unreliable. The Majority accepts that the removal of the tail-fin may have caused some disturbance to the shape of the tunnel. However, the shrapnel imprints recognized by experts as typical for an angle of descent of approximately 60 degrees, as well as the range calculated by Vilicic (55.6 to 62.5 degrees) based on measurements of the elliptical imprints by Sabljica, were not influenced by the disturbance of the tunnel and were consonant with the measurements performed by Zecevic, using a quadrant after having replaced the tailfin. The Majority notes that Zecevic has shown awareness of the possible disturbance of the tunnel and has testified that the lower part of the tunnel was relatively well preserved.
468. In its conclusions, the UN report rejected the measurements of the shells angle of descent (about 80 degrees) made on 5 February 1994 by Verdy who made a mathematical error, ignored the measures made by Russell (68-73 degrees) on the same day, and gives a range of 950 to 1,100 mils (53.4 to 61.9 degrees), which the report emphasised was determined on 11 February 1994.1677 The Majority understands that the UN Report endorsed the findings made by Khan and Hamill although it cautioned that on the basis of the condition of the crater it was not possible to estimate with any "acceptable degree of accuracy" the angle of descent. On this basis, the Majority rejects the measures of the shells angle of descent made by Verdy and Russell and accepts the range determined by Khan and Hamill, which is consistent with the results obtained from calculations based on measurements of earlier investigations.
469. The certain lower limit of the angle of descent is approximately 50 degrees, since at a lesser angle the shell would have collided with the surrounding buildings. On the basis of the evidence presented, the Majority finds that the shells angle of descent was approximately 60 degrees. Allowing for a margin of error of 5 degrees, the Majority finds that the angle of descent was not greater than 65 degrees.
470. The Defence claims that an exact angle of descent should be measured in order to determine whether the shell was fired from ABiH- or SRK-controlled territory. The Majority rejects this claim. Every measurement is by its very nature a measurement within a range. The more precise the measurement, the smaller the margin of error. The Majority considers that its finding as to the angle of decent are based not on one measurement method but on calculations based on the measurement of elliptical imprints, the interpretation of the shrapnel pattern by experts, and on other methods reviewed above. The Majority has also taken into consideration that measurements of a lesser precision were already adjusted to reflect the margin of error.
471. The UN report gives a range of 300 to 5,551 meters as the horizontal distance over which the mortar shell could have travelled. This stated range covers all possible angles of firing and charges.
472. The Majority accepts that from the angle of descent alone it is not possible to calculate the distance a shell travelled.1678 The number of charges (1 to 6) used in addition to the initial (0) charge progressively increase the distance a shell travels.1679
473. Thus a 120 mm mortar shell fired across a level field at an 0+1 charge at a steep angle (85?) and also landing at a steep angle (85.3 degrees) travels horizontally no more than 275 metres, whereas the same shell fired at an 0+6 charge at the same launch angle (85 degrees) and a similar angle of descent (86.2 degrees) travels more than 1,160 metres. If fired at a low angle (45 degrees) with a 0+1 charge the shell travels horizontally no more than 1,574 metres (and lands at around 47.3 degrees ), whereas the same shell fired at an 0+6 charge travels more than 6,400 meters (landing at around 55.6 degrees).1680
474. It was not until the trial stage that both Prosecution and Defence experts introduced into their analyses the relation between the tail-fins penetration into the ground of the market and the speed of the projectile at impact, an element ignored until then by any investigator or expert.
475. The experts reasoning is based upon the following. The depth of penetration of the tail-fin is indicative of the velocity of the shell upon impact. This velocity is of course related to the velocity of the shell at the moment it was fired1681. The velocity at firing depends on the number of increment charges used. As indicated above, the greater the velocity, the greater the distance travelled, where the shells launch angle is kept constant.
476. The mortar shell used in this case exploded on impact. The experts for both parties agree that the explosion creates a backwards thrust against the tail-fin. If the velocity of the shell, and therefore of the tail-fin, on impact had been 150 m/sec (taking the lowest figure presented to the Trial Chamber), the tail-fin would have just fallen to the ground. If the impact velocity was lesser, the tail -fin would have been propelled backwards. If the impact velocity had been greater, the tail-fin would have overcome the backwards thrust and continued forward.
477. In the present case, the tail-fin continued its trajectory in the forward direction at a speed reduced by 150 m/sec, but still sufficient to embed itself in the ground.1682
478. Zecevic estimated that the impact velocity of the shell must have been greater than 200 m/s for the tail-fin to have embedded itself at the depth he measured. In Zecevics opinion, such a velocity can only be achieved by a shell fired at a 0+4 charge or more. At an angle of descent of 65? the shell would have travelled more than 4.5 kilometres on an 0+4 charge. (As the Majority will explain below, even if, by taking the most favourable figures, an impact speed greater than 200 m/s could be achieved by the lower charge 0 + 3, this does not change the final conclusion.)
479. The Majority pauses here to note that Markale market is at an altitude of approximately 550 metres.1683 The confrontation line to the north-east of the market was at an altitude of some 400 metres higher. Continuing in the same direction past the confrontation line, the ground further rose to reach heights of up to 500 to 650 metres above the market at around 2-2. 5 kilometres past the line.
480. As discussed above, Vilicic at first stated that for the tail-fin to embed itself at the depth measured by Zecevic, the shell would have needed an impact velocity of 528.8 m/sec. This speed cannot be achieved by any known mortar. Vilicic based this calculation on the assumption that the ground of impact was of solid concrete for the entire depth of the tail-fins penetration. Confronted with evidence that the market had a top layer of 2 centimetres of asphalt resting on soil consisting of sand and stones,1684 Vilicic then reviewed his calculations and concluded that penetration of 20 cm by the tail -fin would require an impact velocity for the shell of 268.4 m/sec. A 120 mm mortar shell can achieve a speed of approximately 260 m/s if fired at an 0+6 charge and if the altitude of the impact site is 500 metres below the position from which the shell was fired.1685
481. In brief, both experts, basing themselves on a drop angle of 55 to 65 degrees, concluded that an 0+4 or greater charge would be required to attain the impact velocity necessary for the tail-fin to penetrate the ground to the extent it did. At the 65 degrees angle of descent (which is, according to the Majority, the maximum conceivable angle on the evidence), tables provided by both experts show that the horizontal distance the shell would have travelled comes close to 6,000 metres at charge 0+6 and more than 4,500 meters at charge 0+4.1686
482. It follows that the shell which exploded in Markale market travelled a distance considerably greater than 2,600 metres from the north-east direction, placing the position from which the shell was fired well within SRK-controlled territory.
483. Noting however that the Defence disputes the measure of the depth of penetration of the tail-fin in the ground, submitting that an error in that measure could lead to serious miscalculation of the range of fire, the Majority, out of an abundance of caution, will consider the possibility that the tail-fin penetrated the soil to a lesser depth than the one found by Zecevic and that the shell was fired with an 0+3 increment charge, and therefore that the shell travelled a shorter distance than the one determined above.
484. The Majority recalls briefly that on the day of the incident, Sabljica and Cavcic did not measure the depth of penetration of the tail-fin in the ground but measured a 9-centimetre deep crater. The day after the incident, Zecevic and his colleagues measured the depth of penetration of the tail-fin in the ground from the top asphalt layer to the bottom of the tunnel where the tail-fin had been embedded to be 200 to 250 mm, depending on the side of the hole measured. The UN representatives did not measure the depth of penetration of the tail-fin in the ground giving the reason that such a measurement should have been taken right after the tail-fin was removed from the ground of Markale market. However, Dubant noticed that during his crater examination conducted on 11 February 1994, the crater was still sharply defined and was 11 centimetres deep. There is no evidence in the Trial Record which casts doubt on the measurements made by the local investigative teams. The Majority is convinced that the crater caused by the explosion was approximately 9 centimetres deep and that the depth of the tunnel of the tail-fin and the depth of the crater were together 200-250 mm.
485. The Majority will allow that the shell which struck Markale market impacted on ground consisting of a mixture of soil and stones, thus ignoring the force that would have been required to overcome the higher level of resistance presented by a top layer of asphalt. This favours the Defence case. The Majority also uses the most conservative measurement of the depth of the tail-fins penetration, taking the length to be 10 cm. This, again, favours the Defence case.
486. To penetrate 10 cm of ground consisting of soil and stones, the tail-fin would need a post-explosion velocity of 57 m/sec.1687 This gives a shell impact velocity of 150+57=207 m/sec.
487. The firing velocity of a shell on an 0+3 charge is 211 m/s1688. The Majority understands from the evidence of the experts that the impact velocity of a shell fired over a level field is slightly less than its velocity at firing. A shell fired at the 0+3 charge will lose about 30 m/s of its velocity between firing and impact. However, where the altitude of the impact site is less than that of the firing site, the shell will also gain about 30 m/s from having a longer drop trajectory. As always, in choosing these figures1689 the Majority has interpreted the evidence in a fashion favourable to the Defence case.
488. A shell on an 0+3 charge fired over the height differential applicable in this case would have an impact velocity of around 211 m/s. This would be just sufficient for the tail-fin to embed itself to the stipulated depth. But it would also mean that, at a drop angle of 65 degrees, and taking into account a difference in altitude of 400 metres, the shell would have still travelled about 3.6 km from its point of origin to its point of impact. Once again, this places the point of origin well within SRK-controlled territory.
489. This further consideration assures the Majority that the experts findings are buffered by a large margin of safety. There is no doubt that, given the characteristics of the remains of the explosion of the 120 mm mortar shell at Markale market, the shell could not have been fired from any place on the ABiH side of the confrontation lines in a direction north-northeast of Markale market.
490. Finally, the Majority notes that a shell fired at the 0+2 charge1690 could not attain the required velocity over the given height differential for its tail-fin to penetrate the surface of Markale market to the measured extent.
iii. Non-technical Evidence in relation to the Source of Fire
491. The Majority also emphasises that non-technical evidence supports the finding that a heavy weapon was fired from the direction north-northeast of Markale market from SRK-controlled territory at the time of the incident. The Trial Chamber finds reliable the testimony of Witness AF who heard at the time of the incident the sound of a heavy weapon being fired from behind an SRK position, Spicasta Stijena, at Mrkovici. The fact that Witness AF was at his mothers house in Sedrenik when he heard that sound and not at his place in Vratnik does not cast doubt on his ability to assert a direction. The Majority is convinced by the evidence in the Trial Record, which establishes that the noise made by a firing mortar can be used to determine the approximate direction of fire."
"1676. Khan, 56-62 degrees, Hamill, 53-62 degrees; Zecevic Ballistic Report, 55-65 degrees; Vilicic Shelling Report, 55,6-62,5 degrees.
1677. The Majority notes that the UN report does not include the statement of Russell (the statements of the Frebat team, Verdy, Khan, Hamill, Grande and Dubant are included) and gives no reason for that ommission.
1678. It appears from the tables of fire attached to Vilicic Report that angles of descent are in some relation with angles of firing. In fact, decreasing the firing angle by one degree when closer to 90 degrees results in far greater distance gained than decreasing the firing angle by one degree when closer to 45 degrees. Therefore, upward changes of the firing angle in the area considered (between 50 and 65 degrees) increase the traveling distance much less than similar changes around the firing angle of 85 degrees.
1679. If the angle of firing remains unchanged.
1680. Table 2 in Vilicic Shelling Report.
1681. That a higher velocity at firing results in a higher velocity at impact is not only a fact of common knowledge but also clearly illustrated in Table 2 in Vilicic Shelling Report.
1682. The tail-fin of the mortar shell was found embedded in the ground; the UN team used a knife to remove the tail-fin from the ground. See the evidence above in relation to investigation by the UN and the local investigative team.
1683. Vilicic testified that the altitude of the Markale market was at 600 meters. Maps in evidence that contain contour lines indicate a slightly lesser altitude. Similarly Vilicic testified that no elevation higher than 1000 meters existed in the northerly direction up to Mrkovici, which is also contradicted by the maps, indicating elevations of above 1000 metres in and around locations called Gornji Mrkovici and Donji Mrkovici.
1684. C9 mentions "ground and stone".
1685. P3276.1 (Zecevic Shelling Report).
1686. Based on comparison of the tables in Zecevic Shelling Report, p. 6 and C8, C9.
1687. C8, C9.
1688. Table on p. 6 of Zecevic Ballistic Report, this value is more favorable to the Defence case than the value of 219 m/sec for V? given by Vilicic.
1689. The Majority took the most favourable figures from table 2 in Vilicic Shelling Report and C5: the loss of speed in flight was taken at minimum level, while the increase of speed caused by the difference of altitude was taken at a level, consistent with firing at an 0+3 charge, at a difference of altitude of 500 meters, both options resulting in a possibly higher speed of impact when firing at this lower charge.
1690. The velocity at firing at a 0+2 charge is approximately 40m/sec lower compared to firing at a 0+3 charge which velocity could not generate the velocity at impact needed to explain the embedment of the tailfin in the ground. But even if fired at a 0+2 level the shell would have been fired at a distance of 2577 m, which would still be approximately at the SRK-held confrontation line."
"516. According to witnesses who belonged to the latter army, SRK soldiers in the area did not fire at civilians,1783 but the Majority notes that evidence from other witnesses from a wide variety of backgrounds, including a senior UN representative in Sarajevo and residents of the city, indicates that civilians in ABiH-controlled territory in the vicinity of Spicasta Stijena regularly experienced being shot at.1784 Based on this last evidence, the unobstructed line of sight to Spicasta Stijena as well as the shooting which was directed at the car transporting Witness E to hospital and which came from the direction of this ridge, the Majority is satisfied that the bullet which injured Witness E was fired from the area of Spicasta Stijena. The Majority accepts in particular that since Witness E was kneeling and facing the ridge while playing with flowers, her posture would have caused her back to arch slightly, so that the bullet fired from Spicasta Stijena entered the upper part of her back before exiting through a lower region of her body."
"1783. Nikolic, T. 16002-3, 16049 and 16091-2; DP53, T. 16184; DP34, T. 17892; Knezevic, T. 18962-3.
1784. Thomas, T. 9325-6; ?ehbajraktarevic, T. 1792; Witness AF, T. 5485-6, 5490 and 5499; Jusovic, T. 4147-8 and Ocuz, T. 4176-7."
"535. Both parents believed that the bullet that had injured their daughter had been fired from a ridge known as Baba Stijena, because that location was visible from their house and was controlled by the SRK.1895 Two photographs and a video taken from the front door of the Pitas house show this entrance to be completely walled in by neighbouring houses and structures such as fences, offering only a narrow line of sight in the direction of Baba Stijena.1896 [ ] Hinchliffe measured the distance from Anisa Pitas house to Baba Stijena to be 895 metres1898 and maps tendered by the Defence in relation to this incident indicate that distance to be on the order of 900 metres.1899 The Trial Chamber also notes that the Defence argued that no medical documents were tendered which would "provide information about the position of entry-and-exit wound on the leg of Anisa Pita, or which would provide the possibility to determine the direction of wound canal, including the angle and the direction from where the bullet came from."1900 Nonetheless, based on the approximate distance of 900 metres and the existence of a line of sight from the Pitas front entrance only in the direction of Baba Stijena, the Majority is satisfied beyond reasonable doubt that Anisa Pita was injured by a shot fired from the area of that ridge."
"1895. Ekrem Pita, T. 3990-1 and 4001; Fatima Pita, T. 5879 and 5899-5900; P3280P (video of the location of scheduled incident number 2). Fatima Pita had also seen firing, mostly in the form of shelling, originating from the area of Baba Stijena at night when she left her cellar to go to the bathroom on the ground floor of her house, Fatima Pita, T. 5918 and 5925.
1896. P3266 (photograph taken from the location of scheduled incident number 2); P3279P (360 degree photograph of location of scheduled incident number 2); P3280P (video taken from the location scheduled incident number 2). A picture taken from the entrance to the Pitas house shows that a small tree lies in the direction of Baba Stijena, partially blocking the line of sight. P3267 (Photograph taken from entrance to the Pitas house). Ekrem Pita explained though that this tree was planted after the incident, Ekrem Pita, T. 3992.
1897. P3704 (Map of Sarajevo); Van Lynden, T. 2103; D1925 (Report by Defence military expert Radovan Radinovic).
1898. Hinchliffe, T. 12946. Ekrem Pita thought that the distance from his house to Baba Stijena was somewhere between 350 and 1,200 metres as the crow flies, but was unsure, Ekrem Pita, T. 3991 and 4003. Fatima Pita for her part estimated that distance to be between 200 and 300 metres, Fatima Pita, T. 5879.
1899. The Pitas house is separated from Baba Stijena by 5 centimetres on D49 (Map marked by Ekrem Pita). Although no scale is explicitly indicated on this map, the gridding appearing thereon would suggest that a measurement of 5.5 centimetres corresponds to 1,000 metres in actual distance D49 (Map marked by Ekrem Pita). Map D49 thus appears to indicate that the actual distance between the Pitas house and Baba Stijena is approximately (1,000/5.5) x 5 = 909 metres, Ekrem Pita, T. 3991 and 4003.
1900. Defence Final Trial Brief, para. 72. See also Acquittal Motion, para. 32."
"554. The Defence argues that it is not possible to determine the source of fire1971 because no on-site investigations were carried out to determine "the angle of descent in which the projectile, or part of the projectile, entered the body of Vildana Kapur".1972 The Trial Chamber does not consider the absence of on-site investigations or technical data concerning the point of entry of a bullet into the body critical to a determination of the source of fire. Sahic testified that she could see the SRK front line from Stara Cesta Street and that often the Stara Cesta Street area was targeted.1973 That front line was in the area north of Stara Cesta Street called Poljine, at a distance of approximately 300-400 metres from the spot where Vildana Kapur was shot.1974 Periodically, flashes of gunfire would be seen coming from Poljine.1975 Sahic further testified that on the day of the shooting, while she and her girlfriends were walking on Stara Cesta Street, the machine-gun flashes were visible in front of them on the SRK side of confrontation lines.1976 On the 360 degree photograph of the area where the shooting occurred, she pointed out a group of white houses beneath a rocky ridge with a dome on it where the shots had come from.1977 [ ] The Trial Chamber has no reason not to believe that Sahic was in a position to determine where the bullets striking the ground around her and her girlfriends came from. The Trial Chamber is satisfied beyond reasonable doubt that the bullet which wounded Vildana Kapur was fired from SRK-held territory."
"1971. Defence Final Trial Brief, para. 156.
1972. Id.
1973. [ahic, T. 2595.
1974. D153, D1793.
1975. Sahic, T. 2595.
1976. Sahic, T. 2595.
1977. Sahic, T. 2624."
P.8.2. Evidence of military presence in a particular area from which the attack was directed.
A.Legal source/authority and evidence:
Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, para. 294-295, 354, 511-512, 528, 530 :
"294. During trial, a considerable amount of evidence was tendered with regard to that group of buildings in Nedarici known as the "Institute for the Blind", allegedly a major source of fire in SRK-held territory against civilians of the surrounding areas. Witnesses marked the confrontation line on a map in court as going south along Lukavicka Cesta street from the intersection where the Institute for the Blind is located.807
295. [ ] With reference to the previous day, an"UNMO BH Command" report dated 13 July 1994 stated that the commander of 1st Battalion of the SRK Ilidza Brigade admitted that sniping did originate from Bravo PAPA 859578 ("House for the Blind People"), and "promised that there would be no more sniping from that place."812"
"807. Fajko Kadric, T. 3789-90; P3108 (map of the area); Faruk Kadric, T. 3742-3, showing the confrontation lines on D47, map of the area; however, the witness testified that he couldnt actually see the confrontation lines. All the buildings in front of the "blind Institute and the institute for children were destroyed", as those "below the institute for blind children, the Branka Bujica Street" (area marked on the map as Oslobodjenje-Studenski Dom, Zavod za Slijepe, Dom Penzionera). See also Kucanin, T. 4542, P3644.MK1 (map marked by witness). Faruk Kadric traced another confrontation line along Aleja Branca Bujica (now Aleja Bosne Srebrene), from Ante Babica street up the "Home for the Blind Children", D47 (map of the area marked by witness); Faruk Kadric, T. 3742-3. Witness DP4 marked Aleja Branca Bujica as SRK territory under constant fire from the ABiH; Witness DP4, T. 14137. [ ]
812. P2759 (UNMO report), page 4, para. 24; Witness DP17, T. 16856-61."
"354. The evidence remains uncontradicted that the area of the Orthodox Church from where the fire came from was within SRK-controlled territory.1129 The Trial Chamber is satisfied beyond reasonable doubt that the Orthodox Church area, Dobrinja IV, was controlled by SRK forces."
"1129. As mentioned above, the confrontation line at the eastern part of Dobrinja were along a street separating Dobrinja I and IV from Dobrinja II and III B and the buildings of Dobrinja IV and the Orthodox Church were placed within SRK-held territory, Dzevlan, T. 3516; Karavelic, T. 11816, P3728 (electronic map marked by Vahid Karavelic); P3732 (map marked by Ismet Hadzic); DP9, T. 14459, 14464, 14496; D1770 (map marked by witness); D1771 (electronic map marked by DP9)."
"511. The Trial Chamber heard uncontested testimonies to the effect that Spicasta Stijena was under the control of the SRK during the conflict. Witness DP53 and Vaso Nikolic, both SRK soldiers,1751 testified that they were sometimes posted in the immediate vicinity of Spicasta Stijena.1752 They explained that SRK troops manned trenches and an observation post there, from which soldiers could peer into certain sections of Sedrenik,1753 while the closest ABiH frontline lay approximately 50 metres below the ridgeline.1754 Witness DP20, also an SRK soldier,1755 occasionally went to this area1756 and confirmed that the SRK had deployed troops at Spicasta Stijena.1757 There was ongoing fighting between the ABiH and the SRK in this area1758 and in April 1993 for example, the ABiH captured an SRK trench on the ridgeline.1759 The SRK recaptured that trench a few days thereafter however1760 and overall the confrontation lines in the area did not change throughout the conflict except in limited instances.1761
512. Witnesses who did not belong to the SRK corroborated this evidence. Major Francis Thomas, a representative of the United Nations,1762 recalled visiting trenches belonging to the SRK near Spicasta Stijena.1763 Witness E, a resident of Sedrenik,1764 concluded that the SRK controlled the ridgeline based on the shouts and expletives which she could hear coming from there.1765 Nazija Ocuz, another resident of Sedrenik,1766 testified that she too believed that the SRK controlled Spicasta Stijena because she had seen two SRK soldiers arguing there during the conflict.1767"
"1751. Witness DP53, T. 16114-5; Nikolic, T. 15962.
1752. Witness DP53, T. 16165, 16169, 16177-8; Nikolic, T. 15961-2 and 15981.
1753. Witness DP53, T. 16170 and 16178; Nikolic, T. 15981.
1754. Witness DP53, T. 16153; Nikolic, T. 15982.
1755. Witness DP20, T. 15517.
1756. Witness DP20, T. 15777.
1757. Witness DP20, T. 15770-1.
1758. Witness DP53, T. 16144; Nikolic, T. 15975.
1759. Witness DP53, T. 16152-3; Nikolic, T. 15980 and 16005.
1760. Witness DP53, T. 16155.
1761. Witness DP53, T. 16124. One of the consequences of this ongoing fighting was that the trees on the ridgeline were damaged and felled as the conflict wore on, Witness DP53, T. 16194-5.
1762. Thomas, T. 9255.
1763. Thomas, T. 9325.
1764. Witness E, T. 4033.
1765. Witness E, T. 4067 and 4072-3.
1766. Ocuz, T. 4164.
1767. Ocuz, T. 4166 and 4188. "
"528. Maps marked by soldiers of both the SRK and the ABiH indicate that the two armies faced each other along a confrontation line located in the south-eastern quadrant of Sarajevo, with the ABiH controlling the northern base of Mount Trebevic.1842 Testimonies heard by the Trial Chamber corroborated this evidence. DP1, who provided humanitarian relief for the Serb population living in Sarajevo during the conflict,1843 explained that one of his acquaintances had dug trenches at the foot of Mount Trebevic for the ABiH.1844 Akif Mukanovic, a soldier of the ABiH deployed in that area,1845 confirmed the existence of such trenches.1846"
1842. D1778 (Map marked by Witness DP11); D1809 (Map marked by Witness DP16); P3728 (Map related to scheduled sniping incident number 11 marked by Vahid Karavelic).
1843. Witness DP1, T. 13252-3.
1844. Witness DP1, T. 13342 and 13346.
1845. Mukanovic, T. 3097.
1846. Mukanovic, T. 3097. 3099.
"530. In particular, Carl Harding, a UNMO serving in Sarajevo at the time Anisa Pita was shot,1862 explained that, except for one instance when the ABiH occupied a part of this road for a "short while"1863 before retreating,1864 the road leading to Pale was controlled by the SRK1865 and that the position of the confrontation lines in this area was "very static because the ground was very difficult [and] is very, very steep and closely wooded [so that] the road that went to Pale was a significant boundary for both sides."1866 The Trial Chamber is satisfied that this and the other evidence from a military expert for the Defence, an international journalist and a senior United Nations representative establish beyond reasonable doubt that the SRK operated from the general area of Baba Stijena."
1862. Harding served as a UNMO in Sarajevo from July 1992 to January 1993. Harding, T. 4311.
1863. Harding, T. 4459-60. Harding did not indicate when this attack took place.
1864. Harding, T. 4460. Witness DP11 confirmed that the ABiH frequently attacked this road. Witness DP11, T. 15064.
1865. Harding, T. 4462.
P.9. Evidence of indiscriminate charachter of weapons used
Prosecutor v Milan Martić, Case No. IT-95-11-T, Judgement (TC), 12 June 2007, para. 472:
"472. In examining the responsibility of Milan Martić for the crime of attacks on civilians under Article 3, the Trial Chamber recalls that a direct attack on civilians may be inferred from the indiscriminate character of the weapon used. The Trial Chamber has previously found that the M-87 Orkan was incapable of hitting specific targets. The Trial Chamber has also found that these attacks resulted in death and serious injury to the civilian population. Having regard in particular to the nature of the M-87 Orkan and the finding that Milan Martić knew of the effects of this weapon, the Trial Chamber finds that Milan Martić wilfully made the civilian population of Zagreb the object of this attack. Milan Martić therefore incurs individual criminal responsibility under Article 7(1) of the Statute for Count 19, attacks on civilians under Article 3."
A.Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 277:
"277. The Accused is charged, under Count 3 of the Indictment, with attacks on civilians, a violation of the laws or customs of war, as recognised by Article 51 of Additional Protocol I883 and Article 13 of Additional Protocol II884 to the Geneva Conventions of 1949. The Accused is charged under Count 5 with unlawful attacks on civilian objects, in breach of the laws and customs of war, as recognized by Article 52 of Additional Protocol I885 to the Geneva Conventions, and customary law.
"883. Article 51 of Additional Protocol I provides, in so far as relevant:
"1. The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations. To give effect to this protection, the following rules, which are additional to other applicable rules of international law, shall be observed in all circumstances. 2. The civilian population as such, as well as individual civilians, shall not be the object of attack. ... 3. Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities. 4. Indiscriminate attacks are prohibited. Indiscriminate attacks are: (a) Those which are not directed at a specific military objective; (b) Those which employ a method or means of combat which cannot be directed at a specific military objective; (c) Those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction. 5. Among others, the following types of attacks are to be considered as indiscriminate: (a) An attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects; and (b) An attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated [...] 8. Any violation of these prohibitions shall not release the Parties to the conflict from their legal obligations with respect to the civilian population and civilians, including the obligation to take the precautionary measures provided for in Article 57."
884. Article 13 of Additional Protocol II in its relevant part reads:
"1. The civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations. To give effect to this protection, the following rules shall be observed in all circumstances. 2. The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited. 3. Civilians shall enjoy the protection afforded by this Part, unless and for such time as they take a direct part in hostilities."
885. Article 52 of Additional Protocol I provides:
"1. Civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects which are not military objectives as defined in paragraph 2. 2. Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage. 3. In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used.""
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Decision on Defence Motion Requesting Judgement of Acquittal Pursuant to Rule 98 Bis (TC), 21 June 2004, paras. 49-50:
"49. The Accused is charged with participation in the crime of attacks on civilians, a violation of the laws or customs of war, as recognised by Article 51 of Additional Protocol I and Article 13 of Additional Protocol II. The Prosecution alleges that, even assuming that military objectives were present in the Old Town, in any event, civilian losses in human lives and property caused by the attack were excessive in relation to the concrete and direct military advantage anticipated.70
50. Pursuant to the Tribunals case-law, the crime of attacks on civilians is, as to the actus reus, an attack launched against a civilian population that caused deaths and/or serious bodily injury within that population,71 which, as to the mens rea, must have been conducted "intentionally in the knowledge, or when it was impossible not to know, that civilians were being targeted ".72 The presence of certain non- civilians among the targeted population does not change the character of that population. It must be of a "predominantly civilian nature".73 The following attacks are, among others, prohibited by Article 51: attacks the object of which is "the civilian population as such, as well as individual civilians" (§ 2); indiscriminate attacks, such as those which "are of a nature to strike military objectives and civilians or civilian objects without distinction" (§ 4) and those which "may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated" (§ 5 (b))."
"70. The Prosecution opening statement, T. 263-7.
71. See Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-T, Judgement, 3 March 2000 (hereinafter "Blaskic Trial Judgment"), para. 180, Prosecutor v. Dario Kordic and Mario Cerkez, Case No. IT-95-14/2-T, Judgement, 26 February 2001 (hereinafter "Kordic Trial Judgement"), para. 328 and Prosecutor v. Stanislav Galic, Case No. IT-98-29-T, Judgement, 5 December 2003 (hereinafter "Galic Trial Judgment"), para. 62.
72. See Blaskic Trial Judgement, para. 180. In the Blaskic and Kordic Trial Judgements an additional condition is mentioned, that the attack was launched not through military necessity (Ibid.). The Trial Chamber in the Galic case observed, however, that Article 51 (2) of Additional Protocol I states in clear language that civilians and the civilian population as such should not be the object of attack and does not mention any exceptions, in particular that provision does not contemplate derogating from that rule by invoking military necessity (Ibid., para. 44).
73. See Prosecutor v. Dusko Tadic, Case No. IT-94-1-T, Judgement, 7 May 1997 (hereinafter "Tadic Trial Judgement"), para. 638 and Blaskic Trial Judgement, para. 214."
Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, paras. 56-57:
"56. In sum, the Trial Chamber finds that the crime of attack on civilians is constituted of the elements common to offences falling under Article 3 of the Statute, as well as of the following specific elements:
1. Acts of violence directed against the civilian population or individual civilians not taking direct part in hostilities causing death or serious injury to body or health within the civilian population.
2. The offender wilfully made the civilian population or individual civilians not taking direct part in hostilities the object of those acts of violence.
101. Other Trial Chambers have found that attacks which employ certain means of combat which cannot discriminate between civilians and civilian objects and military objectives are tantamount to direct targeting of civilians. For example, the Blaskic Trial Chamber inferred from the arms used in an attack carried out against the town of Stari Vitez that the perpetrators of the attack had wanted to target Muslim civilians, since these arms were difficult to guide accurately, their trajectory was "irregular" and non-linear, thus being likely to hit non-military targets. Blaskic Trial Judgement, paras 501, 512. In the Martic Rule 61 proceedings, the Trial Chamber regarded the use of an Orkan rocket with a cluster bomb warhead as evidence of the intent of the accused to deliberately attack the civilian population. The Chamber concluded that "in respect of its accuracy and striking force, the use of the Orkan rocket in this case was not designed to hit military target but to terrorise the civilians of Zagreb. These attacks are therefore contrary to the rules of customary and conventional international law". The Trial Chamber based this finding on the fact that the rocket was inaccurate, it landed in an area with no military objectives nearby, it was used as an antipersonnel weapon launched against the city of Zagreb and the accused indicated he intended to attack the city, Martic Rule 61 Decision, paras 23-31. It is relevant to note that the International Court of Justice has stated, with regard to the obligation of States not to make civilians the object of attack, that "they must consequently never use weapons that are incapable of distinguishing between civilian and military targets". ICJ Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, ICJ Report 1996, para. 78.
102. Article 51(4) of Additional Protocol I prohibits indiscriminate attacks and provides the first conventional definition of indiscriminate attacks. Paragraph (5) of the same provision provides examples of attacks considered to be indiscriminate. The Kupreskic Trial Chamber held, with regard to the prohibition of launching indiscriminate attacks, that "it is nevertheless beyond dispute that at a minimum, large numbers of casualties would have been interspersed among the combatants. The point which needs to be emphasised is the sacrosanct character of the duty to protect civilians". Even if it can be proved that the Muslim population of Ahmici was not entirely civilian but comprised some armed elements, still no justification would exist for widespread and indiscriminate attacks against civilians." Kupreskic Trial Judgement, para. 513. See also Blaskic Trial Judgement, paras 509-10.
103. As recognized by the Appeals Chamber, among the customary rules that have developed to govern both international conflicts and non-international strife is the protection of the civilian population against indiscriminate attacks. Tadic Jurisdiction Decision, para. 127. The Trial Chamber observes that, already in 1922, the Air Warfare Rules enunciated the prohibition on indiscriminate attacks, by providing that 뱖here military objectives were situated so that they could not be bombarded without the indiscriminate bombardment of the civilian population, the aircraft must abstain from the bombardments.?(Article 24 (3), Air Warfare Rules). These rules impose further limits to bombardments by providing in Article 24(4) that "in the immediate neighbourhood of the operations of land forces, the bombardments of cities, towns and villages, dwellings or buildings is legitimate provided that there exists a reasonable presumption that the military concentration is sufficiently important to justify such bombardments, having regard to the danger thus posed to the civilian population? Although these rules were never adopted in legally binding form, they are considered to be an authorative interpretation of the law. (See, e.g., L. Oppenheim, International Law vol II, 7th ed, 1960). The IX Hague Convention concerning Bombing of Naval Forces in Time of War of 1907 also recognized in its Article 12 that collateral civilian casualties might result and urged that precautions be taken to avoid or minimize them. In March 1938, during the Spanish Civil War, the British Prime Minister explained the protest of his country to General Franco over the bombing of Barcelona to members of the House of Commons by stating that "he one definite rule of international law, however, is that direct and deliberate bombing of non-combatants is in all circumstances illegal, and His Majesty Government protest was based on information which led them to the conclusion that the bombardments of Barcelona, carried on apparently random and without special aim at military objectives, was in fact of this nature.?House of Commons Debates, vol. 333, 23 March 1938, col. 1177). In June of that year, in reference to the same conflict, the Prime Minister affirmed before the House of Commons the existence of a rule or principle of international law prescribing that "reasonable care must be taken in attacking?military objectives so that by carelessness a civilian population in the neighbourhood is not bombed." (House of Common Debates, vol. 337, 21 June 1938, cols 937-8). In 1938, the Assembly and the Council of the League of Nations both condemned attacks carried out without sufficient precautions to safeguard the civilian population. The Assembly of the League of Nations expressed the concern that the civilian population be bombarded through negligence by stating, inter alia, that "any attack on legitimate military objectives must be carried out in such a way that civilian population in the neighbourhood are not bombed through negligence". In this same sense, the Council of the League of Nations also adopted a resolution condemning inter alia as "contrary to the conscience of mankind and to the principles of international law air attacks by the insurgents directed "by negligence" against civilian population." In its already cited Resolution 2444 (1968), the UN General Assembly affirmed that among the principles applicable to all armed conflicts was that "distinction must be made at all times between persons taking part in the hostilities and members of the civilian population to the effect that the latter be spared as much as possible." (G.A. Res. 2444, U.N. GAOR, 23rd Session, Supp. No. 18 U.N. Doc A/7218(1968)). Resolution 2675(1970) also stated that "in the conduct of military operations, every effort should be made to spare the civilian populations from the ravages of war, and all necessary precautions should be taken to avoid injury loss or damage to the civilian populations." (G.A. Res. 2675, U.N. GAOR, 25th Session, Supp. No. 28 U.N. Doc A/8028 (1970).
Prosecutor v. Zoran Kuprekić et al., Case No. IT- 95-16-T, Judgement (TC), 14 January 2000, para. 524:
"524. In addition, attacks, even when they are directed against legitimate military targets, are unlawful if conducted using indiscriminate means or methods of warfare, or in such a way as to cause indiscriminate damage to civilians. These principles have to some extent been spelled out in Articles 57 and 58 of the First Additional Protocol of 1977. Such provisions, it would seem, are now part of customary international law, not only because they specify and flesh out general pre-existing norms, but also because they do not appear to be contested by any State, including those which have not ratified the Protocol. Admittedly, even these two provisions leave a wide margin of discretion to belligerents by using language that might be regarded as leaving the last word to the attacking party. Nevertheless this is an area where the elementary considerations of humanity rightly emphasised by the International Court of Justice in the Corfu Channel,776 Nicaragua777 and Legality of the Threat or Use of Nuclear Weapons778 cases should be fully used when interpreting and applying loose international rules , on the basis that they are illustrative of a general principle of international law."
"776. ICJ Reports, 1949, p. 22.
777. ICJ Reports, 1986, p. 112, para. 215.
778. ICJ Reports, 1996, p. 257, para. 79."
Dormann, Elements of War Crimes Sources and Commentary, pp. 137-8:
The ICJ, in its Advisory Opinon on the legality of the threat or use of nuclear wapons, held:
The Court thus equated the use of indiscriminate weapons with a deliberate attack on civilians. The only existing treaty definition of an indiscriminate weapon may be seen in Art. 51(4)(b) and (c) API describing the characteristics of indiscriminate means of combat as those:
(b) which employ a means of combat which cannot be directed at a specific military objective; or
(c) which employ a menas of combat the effects of which cannot be limited as required by this Protocol;
and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.
In the Martic case (Rule 61 proceeding), the ICTY Trial Chamber held in the context of the prohibition on attacking civilians:
In addition to Art. 35(2) API, the Chamber explicitly referred to Arts. 51(4)(b) and 51(5)(b) API.15 With respect to the Prosecutions allegation that, in retaliation for a previous attack, the accused ordered the bombardment of civilians in Zagreb using Orkan rockets delivering cluster bombs, it found:
"14. ICTY, Review of the Indictment, The Prosecutor v. Milan Martic, IT-95-11-R61, 108 ILR 39 at 47, para. 18.
15. Ibid.
16. Ibid., para. 31, pp. 52 ff."
P.10. Evidence with regard to the identity of the perpetrator.
A.Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 284:
"284. The Chamber has already found that on 6 December 1991 there was an attack launched by the JNA forces against the Old Town of Dubrovnik.909 It is also the finding of the Chamber, as recorded earlier, that there were no military objectives within the Old Town and the attack was not launched or maintained in the belief that there were.910"
"909. See supra, paras 99-119 ; 121-145.
910. See supra, paras 193- 194."
P.11. Evidence with regard to the source of the attack.
P.11.1. Evidence with regard to direction of attack.
A.Legal source/authority and evidence:
Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, paras. 257, 264, 270, 454, 466-491, 516, 535, 554:
"257. Considering the location of the tram when it was hit and that it was impacted on the left-hand side in the direction it was travelling, the fact that there was an unobstructed line of sight between the site of the event and the area of the Jewish Cemetery under the SRK control, the approximate distance between these two areas, lead the Trial Chamber to find that the only reasonable conclusion is that the shot which struck the tram was fired from this area held by the SRK."
"264. From the orientation of the bus and of the bullet marks, Ashton concluded that the gunfire originated from the area above the sports stadium in Grbavica.666"
"666. Ashton, T. 1384, 1386. The witness marked direction of fire on a map (P 3645)."
"270. The Trial Chamber considers that the absence of more detailed medical documentation or technical information on the point of entry of the bullet into the bodies of the victims is not crucial for determining the source of fire. Witness J, a police officer from the Novo Sarajevo Public Security Station who conducted an on-site investigation of the event,699 concluded that the shot had been fired from the SRK positions on Ozrenska Street.700 He based his conclusion not only on the common knowledge that snipers operated in that area,701 but also on the fact that the police was unable to immediately access the site of the incident because of on-going shooting from those positions.702 Nafa Taric recalled speaking to five people at the hospital where she was taken who had been injured by sniper fire originating in the area of Ozrenska Street within an hour of the incident in which she and her daughter were wounded.703 DP10 and DP16 testified that the site of the incident was not fully visible from SRK positions in Ozrenska Street.704 However, visual evidence presented to the Trial Chamber demonstrates that there was an unobstructed line of sight from SRK positions on Hrasno Brdo to the location of the incident.705 Taking this into account, the only reasonable inference is that Nafa and Elma Taric were injured by a shot fired from this area.
699. Witness J, T. 8057; D107 (Official report of the 4th Hrasno Police Station) (under seal). He found no bullet fragments at the scene. T. 8057.
700. D107 (Official report of the 4th Hrasno Police Station) (under seal). Hinchliffe took a laser range finder reading of the distance from the area of Tagolavska road, where he saw trenches and which he suspects was the area of the source of fire, to the spot where the victims were wounded to be 700 metres, Hincliffe, T. 12979-81.
701. Witness J, T. 8084.
702. Witness J, T. 8084.
703. Nafa Taric, T. 3195-8.
704. Witness DP10 said that the street where the incident occurred was only partially visible from the SRK positions, since a white building obstructed the line of sight. However, later in his testimony, he admitted that a line of sight did exist, although he said that the part of the intersection that was visible was in fact sheltered by screens, Witness DP10, T. 14373, 14397, 14411-5. Witness DP16 testified that the site of the incident was not visible from SRK lines, Witness DP16, T. 16576.
705. See photograph No. 1 of P3268 (set of photographs of site of incident); P3280I (videotape); P3279H (360 degree photograph of the location of scheduled sniping incident 10).
"454. Weapon specialists indicated that the noise made by the firing of a mortar can be used to determine the approximate direction of fire.1647 Hamill testified that an observer hearing the sound of a mortar being fired "will not [be able] to determine a location, just [a] direction."1648"
1647. Hamill, T. 6193-4; Kovacs, T. 11482-4; P3734 (Shelling report of Richard Higgs dated 12 February 2002).
1648. Hamill, T. 6193-4.
"ii. Range of Fire Related to the Angle of Descent
466. Following a variety of methods, several investigators and experts drew conclusions on the angle of descent of the mortar shell. By measurement and reconstruction of the impact site, and by interpretation of the shrapnels impact pattern, most experts were led to the conclusion that the angle of descent was close to 60 degrees.1676
467.The method of repositioning the tail fin in the tunnel and measurements on the tunnel after extraction of the tail fin have been challenged by Vilicic as unreliable. The Majority accepts that the removal of the tail-fin may have caused some disturbance to the shape of the tunnel. However, the shrapnel imprints recognized by experts as typical for an angle of descent of approximately 60 degrees, as well as the range calculated by Vilicic (55.6 to 62.5 degrees) based on measurements of the elliptical imprints by Sabljica, were not influenced by the disturbance of the tunnel and were consonant with the measurements performed by Zecevic, using a quadrant after having replaced the tailfin. The Majority notes that Zecevic has shown awareness of the possible disturbance of the tunnel and has testified that the lower part of the tunnel was relatively well preserved.
468. In its conclusions, the UN report rejected the measurements of the shells angle of descent (about 80 degrees) made on 5 February 1994 by Verdy who made a mathematical error, ignored the measures made by Russell (68-73 degrees) on the same day, and gives a range of 950 to 1,100 mils (53.4 to 61.9 degrees), which the report emphasised was determined on 11 February 1994.1677 The Majority understands that the UN Report endorsed the findings made by Khan and Hamill although it cautioned that on the basis of the condition of the crater it was not possible to estimate with any "acceptable degree of accuracy" the angle of descent. On this basis, the Majority rejects the measures of the shells angle of descent made by Verdy and Russell and accepts the range determined by Khan and Hamill, which is consistent with the results obtained from calculations based on measurements of earlier investigations.
469. The certain lower limit of the angle of descent is approximately 50 degrees, since at a lesser angle the shell would have collided with the surrounding buildings. On the basis of the evidence presented, the Majority finds that the shells angle of descent was approximately 60 degrees. Allowing for a margin of error of 5 degrees, the Majority finds that the angle of descent was not greater than 65 degrees.
470. The Defence claims that an exact angle of descent should be measured in order to determine whether the shell was fired from ABiH- or SRK-controlled territory. The Majority rejects this claim. Every measurement is by its very nature a measurement within a range. The more precise the measurement, the smaller the margin of error. The Majority considers that its finding as to the angle of decent are based not on one measurement method but on calculations based on the measurement of elliptical imprints, the interpretation of the shrapnel pattern by experts, and on other methods reviewed above. The Majority has also taken into consideration that measurements of a lesser precision were already adjusted to reflect the margin of error.
471. The UN report gives a range of 300 to 5,551 meters as the horizontal distance over which the mortar shell could have travelled. This stated range covers all possible angles of firing and charges.
472. The Majority accepts that from the angle of descent alone it is not possible to calculate the distance a shell travelled.1678 The number of charges (1 to 6) used in addition to the initial (0) charge progressively increase the distance a shell travels.1679
473. Thus a 120 mm mortar shell fired across a level field at an 0+1 charge at a steep angle (85?) and also landing at a steep angle (85.3 degrees) travels horizontally no more than 275 metres, whereas the same shell fired at an 0+6 charge at the same launch angle (85 degrees) and a similar angle of descent (86.2 degrees) travels more than 1,160 metres. If fired at a low angle (45 degrees) with a 0+1 charge the shell travels horizontally no more than 1,574 metres (and lands at around 47.3 degrees ), whereas the same shell fired at an 0+6 charge travels more than 6,400 meters (landing at around 55.6 degrees).1680
474. It was not until the trial stage that both Prosecution and Defence experts introduced into their analyses the relation between the tail-fins penetration into the ground of the market and the speed of the projectile at impact, an element ignored until then by any investigator or expert.
475. The experts reasoning is based upon the following. The depth of penetration of the tail-fin is indicative of the velocity of the shell upon impact. This velocity is of course related to the velocity of the shell at the moment it was fired1681. The velocity at firing depends on the number of increment charges used. As indicated above, the greater the velocity, the greater the distance travelled, where the shells launch angle is kept constant.
476. The mortar shell used in this case exploded on impact. The experts for both parties agree that the explosion creates a backwards thrust against the tail-fin. If the velocity of the shell, and therefore of the tail-fin, on impact had been 150 m/sec (taking the lowest figure presented to the Trial Chamber), the tail-fin would have just fallen to the ground. If the impact velocity was lesser, the tail -fin would have been propelled backwards. If the impact velocity had been greater, the tail-fin would have overcome the backwards thrust and continued forward.
477. In the present case, the tail-fin continued its trajectory in the forward direction at a speed reduced by 150 m/sec, but still sufficient to embed itself in the ground.1682
478. Zecevic estimated that the impact velocity of the shell must have been greater than 200 m/s for the tail-fin to have embedded itself at the depth he measured. In Zecevics opinion, such a velocity can only be achieved by a shell fired at a 0+4 charge or more. At an angle of descent of 65? the shell would have travelled more than 4.5 kilometres on an 0+4 charge. (As the Majority will explain below, even if, by taking the most favourable figures, an impact speed greater than 200 m/s could be achieved by the lower charge 0 + 3, this does not change the final conclusion.)
479. The Majority pauses here to note that Markale market is at an altitude of approximately 550 metres.1683 The confrontation line to the north-east of the market was at an altitude of some 400 metres higher. Continuing in the same direction past the confrontation line, the ground further rose to reach heights of up to 500 to 650 metres above the market at around 2-2. 5 kilometres past the line.
480. As discussed above, Vilicic at first stated that for the tail-fin to embed itself at the depth measured by Zecevic, the shell would have needed an impact velocity of 528.8 m/sec. This speed cannot be achieved by any known mortar. Vilicic based this calculation on the assumption that the ground of impact was of solid concrete for the entire depth of the tail-fins penetration. Confronted with evidence that the market had a top layer of 2 centimetres of asphalt resting on soil consisting of sand and stones,1684 Vilicic then reviewed his calculations and concluded that penetration of 20 cm by the tail -fin would require an impact velocity for the shell of 268.4 m/sec. A 120 mm mortar shell can achieve a speed of approximately 260 m/s if fired at an 0+6 charge and if the altitude of the impact site is 500 metres below the position from which the shell was fired.1685
481. In brief, both experts, basing themselves on a drop angle of 55 to 65 degrees, concluded that an 0+4 or greater charge would be required to attain the impact velocity necessary for the tail-fin to penetrate the ground to the extent it did. At the 65 degrees angle of descent (which is, according to the Majority, the maximum conceivable angle on the evidence), tables provided by both experts show that the horizontal distance the shell would have travelled comes close to 6,000 metres at charge 0+6 and more than 4,500 meters at charge 0+4.1686
482. It follows that the shell which exploded in Markale market travelled a distance considerably greater than 2,600 metres from the north-east direction, placing the position from which the shell was fired well within SRK-controlled territory.
483. Noting however that the Defence disputes the measure of the depth of penetration of the tail-fin in the ground, submitting that an error in that measure could lead to serious miscalculation of the range of fire, the Majority, out of an abundance of caution, will consider the possibility that the tail-fin penetrated the soil to a lesser depth than the one found by Zecevic and that the shell was fired with an 0+3 increment charge, and therefore that the shell travelled a shorter distance than the one determined above.
484. The Majority recalls briefly that on the day of the incident, Sabljica and Cavcic did not measure the depth of penetration of the tail-fin in the ground but measured a 9-centimetre deep crater. The day after the incident, Zecevic and his colleagues measured the depth of penetration of the tail-fin in the ground from the top asphalt layer to the bottom of the tunnel where the tail-fin had been embedded to be 200 to 250 mm, depending on the side of the hole measured. The UN representatives did not measure the depth of penetration of the tail-fin in the ground giving the reason that such a measurement should have been taken right after the tail-fin was removed from the ground of Markale market. However, Dubant noticed that during his crater examination conducted on 11 February 1994, the crater was still sharply defined and was 11 centimetres deep. There is no evidence in the Trial Record which casts doubt on the measurements made by the local investigative teams. The Majority is convinced that the crater caused by the explosion was approximately 9 centimetres deep and that the depth of the tunnel of the tail-fin and the depth of the crater were together 200-250 mm.
485. The Majority will allow that the shell which struck Markale market impacted on ground consisting of a mixture of soil and stones, thus ignoring the force that would have been required to overcome the higher level of resistance presented by a top layer of asphalt. This favours the Defence case. The Majority also uses the most conservative measurement of the depth of the tail-fins penetration, taking the length to be 10 cm. This, again, favours the Defence case.
486. To penetrate 10 cm of ground consisting of soil and stones, the tail-fin would need a post-explosion velocity of 57 m/sec.1687 This gives a shell impact velocity of 150+57=207 m/sec.
487. The firing velocity of a shell on an 0+3 charge is 211 m/s1688. The Majority understands from the evidence of the experts that the impact velocity of a shell fired over a level field is slightly less than its velocity at firing. A shell fired at the 0+3 charge will lose about 30 m/s of its velocity between firing and impact. However, where the altitude of the impact site is less than that of the firing site, the shell will also gain about 30 m/s from having a longer drop trajectory. As always, in choosing these figures1689 the Majority has interpreted the evidence in a fashion favourable to the Defence case.
488. A shell on an 0+3 charge fired over the height differential applicable in this case would have an impact velocity of around 211 m/s. This would be just sufficient for the tail-fin to embed itself to the stipulated depth. But it would also mean that, at a drop angle of 65 degrees, and taking into account a difference in altitude of 400 metres, the shell would have still travelled about 3.6 km from its point of origin to its point of impact. Once again, this places the point of origin well within SRK-controlled territory.
489. This further consideration assures the Majority that the experts findings are buffered by a large margin of safety. There is no doubt that, given the characteristics of the remains of the explosion of the 120 mm mortar shell at Markale market, the shell could not have been fired from any place on the ABiH side of the confrontation lines in a direction north-northeast of Markale market.
490. Finally, the Majority notes that a shell fired at the 0+2 charge1690 could not attain the required velocity over the given height differential for its tail-fin to penetrate the surface of Markale market to the measured extent.
iii. Non-technical Evidence in relation to the Source of Fire
491. The Majority also emphasises that non-technical evidence supports the finding that a heavy weapon was fired from the direction north-northeast of Markale market from SRK-controlled territory at the time of the incident. The Trial Chamber finds reliable the testimony of Witness AF who heard at the time of the incident the sound of a heavy weapon being fired from behind an SRK position, Spicasta Stijena, at Mrkovici. The fact that Witness AF was at his mothers house in Sedrenik when he heard that sound and not at his place in Vratnik does not cast doubt on his ability to assert a direction. The Majority is convinced by the evidence in the Trial Record, which establishes that the noise made by a firing mortar can be used to determine the approximate direction of fire."
"1676. Khan, 56-62 degrees, Hamill, 53-62 degrees; Zecevic Ballistic Report, 55-65 degrees; Vilicic Shelling Report, 55,6-62,5 degrees.
1677. The Majority notes that the UN report does not include the statement of Russell (the statements of the Frebat team, Verdy, Khan, Hamill, Grande and Dubant are included) and gives no reason for that ommission.
1678. It appears from the tables of fire attached to Vilicic Report that angles of descent are in some relation with angles of firing. In fact, decreasing the firing angle by one degree when closer to 90 degrees results in far greater distance gained than decreasing the firing angle by one degree when closer to 45 degrees. Therefore, upward changes of the firing angle in the area considered (between 50 and 65 degrees) increase the traveling distance much less than similar changes around the firing angle of 85 degrees.
1679. If the angle of firing remains unchanged.
1680. Table 2 in Vilicic Shelling Report.
1681. That a higher velocity at firing results in a higher velocity at impact is not only a fact of common knowledge but also clearly illustrated in Table 2 in Vilicic Shelling Report.
1682. The tail-fin of the mortar shell was found embedded in the ground; the UN team used a knife to remove the tail-fin from the ground. See the evidence above in relation to investigation by the UN and the local investigative team.
1683. Vilicic testified that the altitude of the Markale market was at 600 meters. Maps in evidence that contain contour lines indicate a slightly lesser altitude. Similarly Vilicic testified that no elevation higher than 1000 meters existed in the northerly direction up to Mrkovici, which is also contradicted by the maps, indicating elevations of above 1000 metres in and around locations called Gornji Mrkovici and Donji Mrkovici.
1684. C9 mentions "ground and stone".
1685. P3276.1 (Zecevic Shelling Report).
1686. Based on comparison of the tables in Zecevic Shelling Report, p. 6 and C8, C9.
1687. C8, C9.
1688. Table on p. 6 of Zecevic Ballistic Report, this value is more favorable to the Defence case than the value of 219 m/sec for V? given by Vilicic.
1689. The Majority took the most favourable figures from table 2 in Vilicic Shelling Report and C5: the loss of speed in flight was taken at minimum level, while the increase of speed caused by the difference of altitude was taken at a level, consistent with firing at an 0+3 charge, at a difference of altitude of 500 meters, both options resulting in a possibly higher speed of impact when firing at this lower charge.
1690. The velocity at firing at a 0+2 charge is approximately 40m/sec lower compared to firing at a 0+3 charge which velocity could not generate the velocity at impact needed to explain the embedment of the tailfin in the ground. But even if fired at a 0+2 level the shell would have been fired at a distance of 2577 m, which would still be approximately at the SRK-held confrontation line."
"516. According to witnesses who belonged to the latter army, SRK soldiers in the area did not fire at civilians,1783 but the Majority notes that evidence from other witnesses from a wide variety of backgrounds, including a senior UN representative in Sarajevo and residents of the city, indicates that civilians in ABiH-controlled territory in the vicinity of Spicasta Stijena regularly experienced being shot at.1784 Based on this last evidence, the unobstructed line of sight to Spicasta Stijena as well as the shooting which was directed at the car transporting Witness E to hospital and which came from the direction of this ridge, the Majority is satisfied that the bullet which injured Witness E was fired from the area of Spicasta Stijena. The Majority accepts in particular that since Witness E was kneeling and facing the ridge while playing with flowers, her posture would have caused her back to arch slightly, so that the bullet fired from Spicasta Stijena entered the upper part of her back before exiting through a lower region of her body."
"1783. Nikolic, T. 16002-3, 16049 and 16091-2; DP53, T. 16184; DP34, T. 17892; Knezevic, T. 18962-3.
1784. Thomas, T. 9325-6; ?ehbajraktarevic, T. 1792; Witness AF, T. 5485-6, 5490 and 5499; Jusovic, T. 4147-8 and Ocuz, T. 4176-7."
"535. Both parents believed that the bullet that had injured their daughter had been fired from a ridge known as Baba Stijena, because that location was visible from their house and was controlled by the SRK.1895 Two photographs and a video taken from the front door of the Pitas house show this entrance to be completely walled in by neighbouring houses and structures such as fences, offering only a narrow line of sight in the direction of Baba Stijena.1896 [ ] Hinchliffe measured the distance from Anisa Pitas house to Baba Stijena to be 895 metres1898 and maps tendered by the Defence in relation to this incident indicate that distance to be on the order of 900 metres.1899 The Trial Chamber also notes that the Defence argued that no medical documents were tendered which would "provide information about the position of entry-and-exit wound on the leg of Anisa Pita, or which would provide the possibility to determine the direction of wound canal, including the angle and the direction from where the bullet came from."1900 Nonetheless, based on the approximate distance of 900 metres and the existence of a line of sight from the Pitas front entrance only in the direction of Baba Stijena, the Majority is satisfied beyond reasonable doubt that Anisa Pita was injured by a shot fired from the area of that ridge."
"1895. Ekrem Pita, T. 3990-1 and 4001; Fatima Pita, T. 5879 and 5899-5900; P3280P (video of the location of scheduled incident number 2). Fatima Pita had also seen firing, mostly in the form of shelling, originating from the area of Baba Stijena at night when she left her cellar to go to the bathroom on the ground floor of her house, Fatima Pita, T. 5918 and 5925.
1896. P3266 (photograph taken from the location of scheduled incident number 2); P3279P (360 degree photograph of location of scheduled incident number 2); P3280P (video taken from the location scheduled incident number 2). A picture taken from the entrance to the Pitas house shows that a small tree lies in the direction of Baba Stijena, partially blocking the line of sight. P3267 (Photograph taken from entrance to the Pitas house). Ekrem Pita explained though that this tree was planted after the incident, Ekrem Pita, T. 3992.
1897. P3704 (Map of Sarajevo); Van Lynden, T. 2103; D1925 (Report by Defence military expert Radovan Radinovic).
1898. Hinchliffe, T. 12946. Ekrem Pita thought that the distance from his house to Baba Stijena was somewhere between 350 and 1,200 metres as the crow flies, but was unsure, Ekrem Pita, T. 3991 and 4003. Fatima Pita for her part estimated that distance to be between 200 and 300 metres, Fatima Pita, T. 5879.
1899. The Pitas house is separated from Baba Stijena by 5 centimetres on D49 (Map marked by Ekrem Pita). Although no scale is explicitly indicated on this map, the gridding appearing thereon would suggest that a measurement of 5.5 centimetres corresponds to 1,000 metres in actual distance D49 (Map marked by Ekrem Pita). Map D49 thus appears to indicate that the actual distance between the Pitas house and Baba Stijena is approximately (1,000/5.5) x 5 = 909 metres, Ekrem Pita, T. 3991 and 4003.
1900. Defence Final Trial Brief, para. 72. See also Acquittal Motion, para. 32."
"554. The Defence argues that it is not possible to determine the source of fire1971 because no on-site investigations were carried out to determine "the angle of descent in which the projectile, or part of the projectile, entered the body of Vildana Kapur".1972 The Trial Chamber does not consider the absence of on-site investigations or technical data concerning the point of entry of a bullet into the body critical to a determination of the source of fire. Sahic testified that she could see the SRK front line from Stara Cesta Street and that often the Stara Cesta Street area was targeted.1973 That front line was in the area north of Stara Cesta Street called Poljine, at a distance of approximately 300-400 metres from the spot where Vildana Kapur was shot.1974 Periodically, flashes of gunfire would be seen coming from Poljine.1975 Sahic further testified that on the day of the shooting, while she and her girlfriends were walking on Stara Cesta Street, the machine-gun flashes were visible in front of them on the SRK side of confrontation lines.1976 On the 360 degree photograph of the area where the shooting occurred, she pointed out a group of white houses beneath a rocky ridge with a dome on it where the shots had come from.1977 [ ] The Trial Chamber has no reason not to believe that Sahic was in a position to determine where the bullets striking the ground around her and her girlfriends came from. The Trial Chamber is satisfied beyond reasonable doubt that the bullet which wounded Vildana Kapur was fired from SRK-held territory."
"1971. Defence Final Trial Brief, para. 156.
1972. Id.
1973. [ahic, T. 2595.
1974. D153, D1793.
1975. Sahic, T. 2595.
1976. Sahic, T. 2595.
1977. Sahic, T. 2624."
P.11.2. Evidence of military presence in a particular area from which the attack was directed.
Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, paras. 294-295, 354, 511-512, 528, 530:
"294. During trial, a considerable amount of evidence was tendered with regard to that group of buildings in Nedarici known as the "Institute for the Blind", allegedly a major source of fire in SRK-held territory against civilians of the surrounding areas. Witnesses marked the confrontation line on a map in court as going south along Lukavicka Cesta street from the intersection where the Institute for the Blind is located.807
295. [ ] With reference to the previous day, an"UNMO BH Command" report dated 13 July 1994 stated that the commander of 1st Battalion of the SRK Ilidza Brigade admitted that sniping did originate from Bravo PAPA 859578 ("House for the Blind People"), and "promised that there would be no more sniping from that place."812"
"807. Fajko Kadric, T. 3789-90; P3108 (map of the area); Faruk Kadric, T. 3742-3, showing the confrontation lines on D47, map of the area; however, the witness testified that he couldnt actually see the confrontation lines. All the buildings in front of the "blind Institute and the institute for children were destroyed", as those "below the institute for blind children, the Branka Bujica Street" (area marked on the map as Oslobodjenje-Studenski Dom, Zavod za Slijepe, Dom Penzionera). See also Kucanin, T. 4542, P3644.MK1 (map marked by witness). Faruk Kadric traced another confrontation line along Aleja Branca Bujica (now Aleja Bosne Srebrene), from Ante Babica street up the "Home for the Blind Children", D47 (map of the area marked by witness); Faruk Kadric, T. 3742-3. Witness DP4 marked Aleja Branca Bujica as SRK territory under constant fire from the ABiH; Witness DP4, T. 14137. [ ]
812. P2759 (UNMO report), page 4, para. 24; Witness DP17, T. 16856-61."
"354. The evidence remains uncontradicted that the area of the Orthodox Church from where the fire came from was within SRK-controlled territory.1129 The Trial Chamber is satisfied beyond reasonable doubt that the Orthodox Church area, Dobrinja IV, was controlled by SRK forces."
"1129. As mentioned above, the confrontation line at the eastern part of Dobrinja were along a street separating Dobrinja I and IV from Dobrinja II and III B and the buildings of Dobrinja IV and the Orthodox Church were placed within SRK-held territory, Dzevlan, T. 3516; Karavelic, T. 11816, P3728 (electronic map marked by Vahid Karavelic); P3732 (map marked by Ismet Hadzic); DP9, T. 14459, 14464, 14496; D1770 (map marked by witness); D1771 (electronic map marked by DP9)."
"511. The Trial Chamber heard uncontested testimonies to the effect that Spicasta Stijena was under the control of the SRK during the conflict. Witness DP53 and Vaso Nikolic, both SRK soldiers,1751 testified that they were sometimes posted in the immediate vicinity of Spicasta Stijena.1752 They explained that SRK troops manned trenches and an observation post there, from which soldiers could peer into certain sections of Sedrenik,1753 while the closest ABiH frontline lay approximately 50 metres below the ridgeline.1754 Witness DP20, also an SRK soldier,1755 occasionally went to this area1756 and confirmed that the SRK had deployed troops at Spicasta Stijena.1757 There was ongoing fighting between the ABiH and the SRK in this area1758 and in April 1993 for example, the ABiH captured an SRK trench on the ridgeline.1759 The SRK recaptured that trench a few days thereafter however1760 and overall the confrontation lines in the area did not change throughout the conflict except in limited instances.1761
512. Witnesses who did not belong to the SRK corroborated this evidence. Major Francis Thomas, a representative of the United Nations,1762 recalled visiting trenches belonging to the SRK near Spicasta Stijena.1763 Witness E, a resident of Sedrenik,1764 concluded that the SRK controlled the ridgeline based on the shouts and expletives which she could hear coming from there.1765 Nazija Ocuz, another resident of Sedrenik,1766 testified that she too believed that the SRK controlled Spicasta Stijena because she had seen two SRK soldiers arguing there during the conflict.1767"
"1751. Witness DP53, T. 16114-5; Nikolic, T. 15962.
1752. Witness DP53, T. 16165, 16169, 16177-8; Nikolic, T. 15961-2 and 15981.
1753. Witness DP53, T. 16170 and 16178; Nikolic, T. 15981.
1754. Witness DP53, T. 16153; Nikolic, T. 15982.
1755. Witness DP20, T. 15517.
1756. Witness DP20, T. 15777.
1757. Witness DP20, T. 15770-1.
1758. Witness DP53, T. 16144; Nikolic, T. 15975.
1759. Witness DP53, T. 16152-3; Nikolic, T. 15980 and 16005.
1760. Witness DP53, T. 16155.
1761. Witness DP53, T. 16124. One of the consequences of this ongoing fighting was that the trees on the ridgeline were damaged and felled as the conflict wore on, Witness DP53, T. 16194-5.
1762. Thomas, T. 9255.
1763. Thomas, T. 9325.
1764. Witness E, T. 4033.
1765. Witness E, T. 4067 and 4072-3.
1766. Ocuz, T. 4164.
1767. Ocuz, T. 4166 and 4188. "
"528. Maps marked by soldiers of both the SRK and the ABiH indicate that the two armies faced each other along a confrontation line located in the south-eastern quadrant of Sarajevo, with the ABiH controlling the northern base of Mount Trebevic.1842 Testimonies heard by the Trial Chamber corroborated this evidence. DP1, who provided humanitarian relief for the Serb population living in Sarajevo during the conflict,1843 explained that one of his acquaintances had dug trenches at the foot of Mount Trebevic for the ABiH.1844 Akif Mukanovic, a soldier of the ABiH deployed in that area,1845 confirmed the existence of such trenches.1846"
1842. D1778 (Map marked by Witness DP11); D1809 (Map marked by Witness DP16); P3728 (Map related to scheduled sniping incident number 11 marked by Vahid Karavelic).
1843. Witness DP1, T. 13252-3.
1844. Witness DP1, T. 13342 and 13346.
1845. Mukanovic, T. 3097.
1846. Mukanovic, T. 3097. 3099.
"530. In particular, Carl Harding, a UNMO serving in Sarajevo at the time Anisa Pita was shot,1862 explained that, except for one instance when the ABiH occupied a part of this road for a "short while"1863 before retreating,1864 the road leading to Pale was controlled by the SRK1865 and that the position of the confrontation lines in this area was "very static because the ground was very difficult [and] is very, very steep and closely wooded [so that] the road that went to Pale was a significant boundary for both sides."1866 The Trial Chamber is satisfied that this and the other evidence from a military expert for the Defence, an international journalist and a senior United Nations representative establish beyond reasonable doubt that the SRK operated from the general area of Baba Stijena."
1862. Harding served as a UNMO in Sarajevo from July 1992 to January 1993. Harding, T. 4311.
1863. Harding, T. 4459-60. Harding did not indicate when this attack took place.
1864. Harding, T. 4460. Witness DP11 confirmed that the ABiH frequently attacked this road. Witness DP11, T. 15064.
1865. Harding, T. 4462.
A.Legal source/authority and evidence:
Prosecutor v. Zoran Kuprekić et al., Case No. IT- 95-16-T, Judgement (TC), 14 January 2000, para. 524:
"524. In the case of attacks on military objectives causing damage to civilians, international law contains a general principle prescribing that reasonable care must be taken in attacking military objectives so that civilians are not needlessly injured through carelessness. This principle, already referred to by the United Kingdom in 1938 with regard to the Spanish Civil War,775 has always been applied in conjunction with the principle of proportionality, whereby any incidental (and unintentional) damage to civilians must not be out of proportion to the direct military advantage gained by the military attack. In addition, attacks, even when they are directed against legitimate military targets, are unlawful if conducted using indiscriminate means or methods of warfare, or in such a way as to cause indiscriminate damage to civilians. These principles have to some extent been spelled out in Articles 57 and 58 of the First Additional Protocol of 1977. Such provisions, it would seem, are now part of customary international law, not only because they specify and flesh out general pre-existing norms, but also because they do not appear to be contested by any State, including those which have not ratified the Protocol. Admittedly, even these two provisions leave a wide margin of discretion to belligerents by using language that might be regarded as leaving the last word to the attacking party. Nevertheless this is an area where the elementary considerations of humanity rightly emphasised by the International Court of Justice in the Corfu Channel,776 Nicaragua777 and Legality of the Threat or Use of Nuclear Weapons778 cases should be fully used when interpreting and applying loose international rules , on the basis that they are illustrative of a general principle of international law."
"775. In his statement in the House of Commons on the Spanish civil war, the British Prime Minister stated that one of the rules applicable in any armed conflict was the rule whereby reasonable care must be taken in attacking [...] military objectives so that by carelessness a civilian population in the neighbourhood is not bombed (House of Commons, Debates, 21 June 1938, vol. 337, cols. 937-938)."
776. ICJ Reports, 1949, p. 22.
777. ICJ Reports, 1986, p. 112, para. 215.
778. ICJ Reports, 1996, p. 257, para. 79."
Additional Protocol I to the Geneva Conventions, art. 51(8):
"Art. 51 Protection of the civilian population
[ ]
8. Any violation of these prohibitions shall not release the Partis to the conflict from their legal obligations with respect to the civilian population and civilians, including the obligation to take the precautionary measures provided in Article 57 [Precautions in attack]."
Additional Protocol I to the Geneva Conventions, arts. 57 and 58:
"Art 57. Precautions in attack
1. In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects.
2. With respect to attacks, the following precautions shall be taken:
(a) those who plan or decide upon an attack shall:
(i) do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection but are military objectives within the meaning of paragraph 2 of Article 52 and that it is not prohibited by the provisions of this Protocol to attack them;
(ii) take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss or civilian life, injury to civilians and damage to civilian objects;
(iii) refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated;
(b) an attack shall be cancelled or suspended if it becomes apparent that the objective is not a military one or is subject to special protection or that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated;
(c) effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit.
3. When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects.
4. In the conduct of military operations at sea or in the air, each Party to the conflict shall, in conformity with its rights and duties under the rules of international law applicable in armed conflict, take all reasonable precautions to avoid losses of civilian lives and damage to civilian objects.
5. No provision of this article may be construed as authorizing any attacks against the civilian population, civilians or civilian objects.
Art 58. Precautions against the effects of attacks
The Parties to the conflict shall, to the maximum extent feasible:
(a) without prejudice to Article 49 of the Fourth Convention, endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives;
(b) avoid locating military objectives within or near densely populated areas;
(c) take the other necessary precautions to protect the civilian population, individual civilians and civilian objects under their control against the dangers resulting from military operations."
Additional Protocol I to the Geneva Conventions, art. 83(3)(a):
"3. In addition to the grave breaches defined in Article 11, the following acts shall be regarded as grave breaches of this Protocol, when committed wilfully, in violation of the relevant provisions of this Protocol, and causing death or serious injury to body or health:
(a) making the civilian population or individual civilians the object of attack;"
ICRC Commentary on the Additional Protocol, para. 3475:
"'Sub-paragraph' (a) [art. 85(3)(a)]
3475 According to Article 49 (Definition of attacks and scope of application), ' paragraph 1, the term "attacks" means "acts of violence against the adversary, whether in offence or defence". As defined in Article 50 (Definition of civilians and civilian population), ' anyone who is not a combatant is a civilian (cf. the provisions referred to in that article); in case of doubt regarding the status of a person, that person is to be considered as a civilian. The prohibition on attacking the civilian population and civilians -- i.e., isolated civilians -- is explicitly laid down in Article 51 (Protection of the civilian population), ' paragraph 2 (18) All precautions must be taken with a view to sparing civilians, both in planning and in carrying out an attack (cf. Article 57 -- Precautions in attack).'"
ICTY, Final Report to the Prosecutor by the Committee established to Review the NATO Bombing Campaign, para. 29:
"One of the principles underlying international humanitarian law is the principle of distinction, which obligates military commanders to distinguish between military objectives and civilian persons or objects. The practical application of this principle is effectively encapsulated in Article 57 of Additional Protocol which, in part, obligates those who plan or decide upon an attack to "do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects". The obligation to do everything feasible is high but not absolute. A military commander must set up an effective intelligence gathering system to collect and evaluate information concerning potential targets. The commander must also direct his forces to use available technical means to properly identify targets during operations. [ ]"
Dormann, Elements of War Crimes Sources and Commentary, p. 138:
"The requirement to take precautions with a view to sparing civilians
According to the ICRC Commentary on the grave breach as defined in Art. 85(3)(a) API, another element not explicitly mentioned is a constituent of the offence [art. 8(2)(b)(i)]:
This requirement seems to be well found.18 In two early decisions of the Tribunal arbitral mixte Greco-allemand in 1927 this position was clearly expressed."
"17. B. Zimmermann, Art. 85 in Y. Sandoz, C. Swinarski and B. Zimmermann (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (ICRC, Martinus Nijhoff, Geneva, 1987), no. 3475.
18. See also ICTY, Judgment, The Prosecutor v. Zoran Kupreskic and Others, IT-95-16-T, paras. 524 ff."
P.12. Evidence with regard to the identity of the perpetrator.
A.Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 284:
"284. The Chamber has already found that on 6 December 1991 there was an attack launched by the JNA forces against the Old Town of Dubrovnik.909 It is also the finding of the Chamber, as recorded earlier, that there were no military objectives within the Old Town and the attack was not launched or maintained in the belief that there were.910"
"909. See supra, paras 99-119 ; 121-145.
910. See supra, paras 193- 194."
P.13. Evidence with regard to the source of the attack.
P.13.1. Evidence with regard to direction of attack.
A.Legal source/authority and evidence:
Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, paras. 257, 264, 270, 454, 466-491, 516, 535, 554:
"257. Considering the location of the tram when it was hit and that it was impacted on the left-hand side in the direction it was travelling, the fact that there was an unobstructed line of sight between the site of the event and the area of the Jewish Cemetery under the SRK control, the approximate distance between these two areas, lead the Trial Chamber to find that the only reasonable conclusion is that the shot which struck the tram was fired from this area held by the SRK."
"264. From the orientation of the bus and of the bullet marks, Ashton concluded that the gunfire originated from the area above the sports stadium in Grbavica.666"
"666. Ashton, T. 1384, 1386. The witness marked direction of fire on a map (P 3645)."
"270. The Trial Chamber considers that the absence of more detailed medical documentation or technical information on the point of entry of the bullet into the bodies of the victims is not crucial for determining the source of fire. Witness J, a police officer from the Novo Sarajevo Public Security Station who conducted an on-site investigation of the event,699 concluded that the shot had been fired from the SRK positions on Ozrenska Street.700 He based his conclusion not only on the common knowledge that snipers operated in that area,701 but also on the fact that the police was unable to immediately access the site of the incident because of on-going shooting from those positions.702 Nafa Taric recalled speaking to five people at the hospital where she was taken who had been injured by sniper fire originating in the area of Ozrenska Street within an hour of the incident in which she and her daughter were wounded.703 DP10 and DP16 testified that the site of the incident was not fully visible from SRK positions in Ozrenska Street.704 However, visual evidence presented to the Trial Chamber demonstrates that there was an unobstructed line of sight from SRK positions on Hrasno Brdo to the location of the incident.705 Taking this into account, the only reasonable inference is that Nafa and Elma Taric were injured by a shot fired from this area.
699. Witness J, T. 8057; D107 (Official report of the 4th Hrasno Police Station) (under seal). He found no bullet fragments at the scene. T. 8057.
700. D107 (Official report of the 4th Hrasno Police Station) (under seal). Hinchliffe took a laser range finder reading of the distance from the area of Tagolavska road, where he saw trenches and which he suspects was the area of the source of fire, to the spot where the victims were wounded to be 700 metres, Hincliffe, T. 12979-81.
701. Witness J, T. 8084.
702. Witness J, T. 8084.
703. Nafa Taric, T. 3195-8.
704. Witness DP10 said that the street where the incident occurred was only partially visible from the SRK positions, since a white building obstructed the line of sight. However, later in his testimony, he admitted that a line of sight did exist, although he said that the part of the intersection that was visible was in fact sheltered by screens, Witness DP10, T. 14373, 14397, 14411-5. Witness DP16 testified that the site of the incident was not visible from SRK lines, Witness DP16, T. 16576.
705. See photograph No. 1 of P3268 (set of photographs of site of incident); P3280I (videotape); P3279H (360 degree photograph of the location of scheduled sniping incident 10).
"454. Weapon specialists indicated that the noise made by the firing of a mortar can be used to determine the approximate direction of fire.1647 Hamill testified that an observer hearing the sound of a mortar being fired "will not [be able] to determine a location, just [a] direction."1648"
1647. Hamill, T. 6193-4; Kovacs, T. 11482-4; P3734 (Shelling report of Richard Higgs dated 12 February 2002).
1648. Hamill, T. 6193-4.
"ii. Range of Fire Related to the Angle of Descent
466. Following a variety of methods, several investigators and experts drew conclusions on the angle of descent of the mortar shell. By measurement and reconstruction of the impact site, and by interpretation of the shrapnels impact pattern, most experts were led to the conclusion that the angle of descent was close to 60 degrees.1676
467.The method of repositioning the tail fin in the tunnel and measurements on the tunnel after extraction of the tail fin have been challenged by Vilicic as unreliable. The Majority accepts that the removal of the tail-fin may have caused some disturbance to the shape of the tunnel. However, the shrapnel imprints recognized by experts as typical for an angle of descent of approximately 60 degrees, as well as the range calculated by Vilicic (55.6 to 62.5 degrees) based on measurements of the elliptical imprints by Sabljica, were not influenced by the disturbance of the tunnel and were consonant with the measurements performed by Zecevic, using a quadrant after having replaced the tailfin. The Majority notes that Zecevic has shown awareness of the possible disturbance of the tunnel and has testified that the lower part of the tunnel was relatively well preserved.
468. In its conclusions, the UN report rejected the measurements of the shells angle of descent (about 80 degrees) made on 5 February 1994 by Verdy who made a mathematical error, ignored the measures made by Russell (68-73 degrees) on the same day, and gives a range of 950 to 1,100 mils (53.4 to 61.9 degrees), which the report emphasised was determined on 11 February 1994.1677 The Majority understands that the UN Report endorsed the findings made by Khan and Hamill although it cautioned that on the basis of the condition of the crater it was not possible to estimate with any "acceptable degree of accuracy" the angle of descent. On this basis, the Majority rejects the measures of the shells angle of descent made by Verdy and Russell and accepts the range determined by Khan and Hamill, which is consistent with the results obtained from calculations based on measurements of earlier investigations.
469. The certain lower limit of the angle of descent is approximately 50 degrees, since at a lesser angle the shell would have collided with the surrounding buildings. On the basis of the evidence presented, the Majority finds that the shells angle of descent was approximately 60 degrees. Allowing for a margin of error of 5 degrees, the Majority finds that the angle of descent was not greater than 65 degrees.
470. The Defence claims that an exact angle of descent should be measured in order to determine whether the shell was fired from ABiH- or SRK-controlled territory. The Majority rejects this claim. Every measurement is by its very nature a measurement within a range. The more precise the measurement, the smaller the margin of error. The Majority considers that its finding as to the angle of decent are based not on one measurement method but on calculations based on the measurement of elliptical imprints, the interpretation of the shrapnel pattern by experts, and on other methods reviewed above. The Majority has also taken into consideration that measurements of a lesser precision were already adjusted to reflect the margin of error.
471. The UN report gives a range of 300 to 5,551 meters as the horizontal distance over which the mortar shell could have travelled. This stated range covers all possible angles of firing and charges.
472. The Majority accepts that from the angle of descent alone it is not possible to calculate the distance a shell travelled.1678 The number of charges (1 to 6) used in addition to the initial (0) charge progressively increase the distance a shell travels.1679
473. Thus a 120 mm mortar shell fired across a level field at an 0+1 charge at a steep angle (85?) and also landing at a steep angle (85.3 degrees) travels horizontally no more than 275 metres, whereas the same shell fired at an 0+6 charge at the same launch angle (85 degrees) and a similar angle of descent (86.2 degrees) travels more than 1,160 metres. If fired at a low angle (45 degrees) with a 0+1 charge the shell travels horizontally no more than 1,574 metres (and lands at around 47.3 degrees ), whereas the same shell fired at an 0+6 charge travels more than 6,400 meters (landing at around 55.6 degrees).1680
474. It was not until the trial stage that both Prosecution and Defence experts introduced into their analyses the relation between the tail-fins penetration into the ground of the market and the speed of the projectile at impact, an element ignored until then by any investigator or expert.
475. The experts reasoning is based upon the following. The depth of penetration of the tail-fin is indicative of the velocity of the shell upon impact. This velocity is of course related to the velocity of the shell at the moment it was fired1681. The velocity at firing depends on the number of increment charges used. As indicated above, the greater the velocity, the greater the distance travelled, where the shells launch angle is kept constant.
476. The mortar shell used in this case exploded on impact. The experts for both parties agree that the explosion creates a backwards thrust against the tail-fin. If the velocity of the shell, and therefore of the tail-fin, on impact had been 150 m/sec (taking the lowest figure presented to the Trial Chamber), the tail-fin would have just fallen to the ground. If the impact velocity was lesser, the tail -fin would have been propelled backwards. If the impact velocity had been greater, the tail-fin would have overcome the backwards thrust and continued forward.
477. In the present case, the tail-fin continued its trajectory in the forward direction at a speed reduced by 150 m/sec, but still sufficient to embed itself in the ground.1682
478. Zecevic estimated that the impact velocity of the shell must have been greater than 200 m/s for the tail-fin to have embedded itself at the depth he measured. In Zecevics opinion, such a velocity can only be achieved by a shell fired at a 0+4 charge or more. At an angle of descent of 65? the shell would have travelled more than 4.5 kilometres on an 0+4 charge. (As the Majority will explain below, even if, by taking the most favourable figures, an impact speed greater than 200 m/s could be achieved by the lower charge 0 + 3, this does not change the final conclusion.)
479. The Majority pauses here to note that Markale market is at an altitude of approximately 550 metres.1683 The confrontation line to the north-east of the market was at an altitude of some 400 metres higher. Continuing in the same direction past the confrontation line, the ground further rose to reach heights of up to 500 to 650 metres above the market at around 2-2. 5 kilometres past the line.
480. As discussed above, Vilicic at first stated that for the tail-fin to embed itself at the depth measured by Zecevic, the shell would have needed an impact velocity of 528.8 m/sec. This speed cannot be achieved by any known mortar. Vilicic based this calculation on the assumption that the ground of impact was of solid concrete for the entire depth of the tail-fins penetration. Confronted with evidence that the market had a top layer of 2 centimetres of asphalt resting on soil consisting of sand and stones,1684 Vilicic then reviewed his calculations and concluded that penetration of 20 cm by the tail -fin would require an impact velocity for the shell of 268.4 m/sec. A 120 mm mortar shell can achieve a speed of approximately 260 m/s if fired at an 0+6 charge and if the altitude of the impact site is 500 metres below the position from which the shell was fired.1685
481. In brief, both experts, basing themselves on a drop angle of 55 to 65 degrees, concluded that an 0+4 or greater charge would be required to attain the impact velocity necessary for the tail-fin to penetrate the ground to the extent it did. At the 65 degrees angle of descent (which is, according to the Majority, the maximum conceivable angle on the evidence), tables provided by both experts show that the horizontal distance the shell would have travelled comes close to 6,000 metres at charge 0+6 and more than 4,500 meters at charge 0+4.1686
482. It follows that the shell which exploded in Markale market travelled a distance considerably greater than 2,600 metres from the north-east direction, placing the position from which the shell was fired well within SRK-controlled territory.
483. Noting however that the Defence disputes the measure of the depth of penetration of the tail-fin in the ground, submitting that an error in that measure could lead to serious miscalculation of the range of fire, the Majority, out of an abundance of caution, will consider the possibility that the tail-fin penetrated the soil to a lesser depth than the one found by Zecevic and that the shell was fired with an 0+3 increment charge, and therefore that the shell travelled a shorter distance than the one determined above.
484. The Majority recalls briefly that on the day of the incident, Sabljica and Cavcic did not measure the depth of penetration of the tail-fin in the ground but measured a 9-centimetre deep crater. The day after the incident, Zecevic and his colleagues measured the depth of penetration of the tail-fin in the ground from the top asphalt layer to the bottom of the tunnel where the tail-fin had been embedded to be 200 to 250 mm, depending on the side of the hole measured. The UN representatives did not measure the depth of penetration of the tail-fin in the ground giving the reason that such a measurement should have been taken right after the tail-fin was removed from the ground of Markale market. However, Dubant noticed that during his crater examination conducted on 11 February 1994, the crater was still sharply defined and was 11 centimetres deep. There is no evidence in the Trial Record which casts doubt on the measurements made by the local investigative teams. The Majority is convinced that the crater caused by the explosion was approximately 9 centimetres deep and that the depth of the tunnel of the tail-fin and the depth of the crater were together 200-250 mm.
485. The Majority will allow that the shell which struck Markale market impacted on ground consisting of a mixture of soil and stones, thus ignoring the force that would have been required to overcome the higher level of resistance presented by a top layer of asphalt. This favours the Defence case. The Majority also uses the most conservative measurement of the depth of the tail-fins penetration, taking the length to be 10 cm. This, again, favours the Defence case.
486. To penetrate 10 cm of ground consisting of soil and stones, the tail-fin would need a post-explosion velocity of 57 m/sec.1687 This gives a shell impact velocity of 150+57=207 m/sec.
487. The firing velocity of a shell on an 0+3 charge is 211 m/s1688. The Majority understands from the evidence of the experts that the impact velocity of a shell fired over a level field is slightly less than its velocity at firing. A shell fired at the 0+3 charge will lose about 30 m/s of its velocity between firing and impact. However, where the altitude of the impact site is less than that of the firing site, the shell will also gain about 30 m/s from having a longer drop trajectory. As always, in choosing these figures1689 the Majority has interpreted the evidence in a fashion favourable to the Defence case.
488. A shell on an 0+3 charge fired over the height differential applicable in this case would have an impact velocity of around 211 m/s. This would be just sufficient for the tail-fin to embed itself to the stipulated depth. But it would also mean that, at a drop angle of 65 degrees, and taking into account a difference in altitude of 400 metres, the shell would have still travelled about 3.6 km from its point of origin to its point of impact. Once again, this places the point of origin well within SRK-controlled territory.
489. This further consideration assures the Majority that the experts findings are buffered by a large margin of safety. There is no doubt that, given the characteristics of the remains of the explosion of the 120 mm mortar shell at Markale market, the shell could not have been fired from any place on the ABiH side of the confrontation lines in a direction north-northeast of Markale market.
490. Finally, the Majority notes that a shell fired at the 0+2 charge1690 could not attain the required velocity over the given height differential for its tail-fin to penetrate the surface of Markale market to the measured extent.
iii. Non-technical Evidence in relation to the Source of Fire
491. The Majority also emphasises that non-technical evidence supports the finding that a heavy weapon was fired from the direction north-northeast of Markale market from SRK-controlled territory at the time of the incident. The Trial Chamber finds reliable the testimony of Witness AF who heard at the time of the incident the sound of a heavy weapon being fired from behind an SRK position, Spicasta Stijena, at Mrkovici. The fact that Witness AF was at his mothers house in Sedrenik when he heard that sound and not at his place in Vratnik does not cast doubt on his ability to assert a direction. The Majority is convinced by the evidence in the Trial Record, which establishes that the noise made by a firing mortar can be used to determine the approximate direction of fire."
"1676. Khan, 56-62 degrees, Hamill, 53-62 degrees; Zecevic Ballistic Report, 55-65 degrees; Vilicic Shelling Report, 55,6-62,5 degrees.
1677. The Majority notes that the UN report does not include the statement of Russell (the statements of the Frebat team, Verdy, Khan, Hamill, Grande and Dubant are included) and gives no reason for that ommission.
1678. It appears from the tables of fire attached to Vilicic Report that angles of descent are in some relation with angles of firing. In fact, decreasing the firing angle by one degree when closer to 90 degrees results in far greater distance gained than decreasing the firing angle by one degree when closer to 45 degrees. Therefore, upward changes of the firing angle in the area considered (between 50 and 65 degrees) increase the traveling distance much less than similar changes around the firing angle of 85 degrees.
1679. If the angle of firing remains unchanged.
1680. Table 2 in Vilicic Shelling Report.
1681. That a higher velocity at firing results in a higher velocity at impact is not only a fact of common knowledge but also clearly illustrated in Table 2 in Vilicic Shelling Report.
1682. The tail-fin of the mortar shell was found embedded in the ground; the UN team used a knife to remove the tail-fin from the ground. See the evidence above in relation to investigation by the UN and the local investigative team.
1683. Vilicic testified that the altitude of the Markale market was at 600 meters. Maps in evidence that contain contour lines indicate a slightly lesser altitude. Similarly Vilicic testified that no elevation higher than 1000 meters existed in the northerly direction up to Mrkovici, which is also contradicted by the maps, indicating elevations of above 1000 metres in and around locations called Gornji Mrkovici and Donji Mrkovici.
1684. C9 mentions "ground and stone".
1685. P3276.1 (Zecevic Shelling Report).
1686. Based on comparison of the tables in Zecevic Shelling Report, p. 6 and C8, C9.
1687. C8, C9.
1688. Table on p. 6 of Zecevic Ballistic Report, this value is more favorable to the Defence case than the value of 219 m/sec for V? given by Vilicic.
1689. The Majority took the most favourable figures from table 2 in Vilicic Shelling Report and C5: the loss of speed in flight was taken at minimum level, while the increase of speed caused by the difference of altitude was taken at a level, consistent with firing at an 0+3 charge, at a difference of altitude of 500 meters, both options resulting in a possibly higher speed of impact when firing at this lower charge.
1690. The velocity at firing at a 0+2 charge is approximately 40m/sec lower compared to firing at a 0+3 charge which velocity could not generate the velocity at impact needed to explain the embedment of the tailfin in the ground. But even if fired at a 0+2 level the shell would have been fired at a distance of 2577 m, which would still be approximately at the SRK-held confrontation line."
"516. According to witnesses who belonged to the latter army, SRK soldiers in the area did not fire at civilians,1783 but the Majority notes that evidence from other witnesses from a wide variety of backgrounds, including a senior UN representative in Sarajevo and residents of the city, indicates that civilians in ABiH-controlled territory in the vicinity of Spicasta Stijena regularly experienced being shot at.1784 Based on this last evidence, the unobstructed line of sight to Spicasta Stijena as well as the shooting which was directed at the car transporting Witness E to hospital and which came from the direction of this ridge, the Majority is satisfied that the bullet which injured Witness E was fired from the area of Spicasta Stijena. The Majority accepts in particular that since Witness E was kneeling and facing the ridge while playing with flowers, her posture would have caused her back to arch slightly, so that the bullet fired from Spicasta Stijena entered the upper part of her back before exiting through a lower region of her body."
"1783. Nikolic, T. 16002-3, 16049 and 16091-2; DP53, T. 16184; DP34, T. 17892; Knezevic, T. 18962-3.
1784. Thomas, T. 9325-6; ?ehbajraktarevic, T. 1792; Witness AF, T. 5485-6, 5490 and 5499; Jusovic, T. 4147-8 and Ocuz, T. 4176-7."
"535. Both parents believed that the bullet that had injured their daughter had been fired from a ridge known as Baba Stijena, because that location was visible from their house and was controlled by the SRK.1895 Two photographs and a video taken from the front door of the Pitas house show this entrance to be completely walled in by neighbouring houses and structures such as fences, offering only a narrow line of sight in the direction of Baba Stijena.1896 [ ] Hinchliffe measured the distance from Anisa Pitas house to Baba Stijena to be 895 metres1898 and maps tendered by the Defence in relation to this incident indicate that distance to be on the order of 900 metres.1899 The Trial Chamber also notes that the Defence argued that no medical documents were tendered which would "provide information about the position of entry-and-exit wound on the leg of Anisa Pita, or which would provide the possibility to determine the direction of wound canal, including the angle and the direction from where the bullet came from."1900 Nonetheless, based on the approximate distance of 900 metres and the existence of a line of sight from the Pitas front entrance only in the direction of Baba Stijena, the Majority is satisfied beyond reasonable doubt that Anisa Pita was injured by a shot fired from the area of that ridge."
"1895. Ekrem Pita, T. 3990-1 and 4001; Fatima Pita, T. 5879 and 5899-5900; P3280P (video of the location of scheduled incident number 2). Fatima Pita had also seen firing, mostly in the form of shelling, originating from the area of Baba Stijena at night when she left her cellar to go to the bathroom on the ground floor of her house, Fatima Pita, T. 5918 and 5925.
1896. P3266 (photograph taken from the location of scheduled incident number 2); P3279P (360 degree photograph of location of scheduled incident number 2); P3280P (video taken from the location scheduled incident number 2). A picture taken from the entrance to the Pitas house shows that a small tree lies in the direction of Baba Stijena, partially blocking the line of sight. P3267 (Photograph taken from entrance to the Pitas house). Ekrem Pita explained though that this tree was planted after the incident, Ekrem Pita, T. 3992.
1897. P3704 (Map of Sarajevo); Van Lynden, T. 2103; D1925 (Report by Defence military expert Radovan Radinovic).
1898. Hinchliffe, T. 12946. Ekrem Pita thought that the distance from his house to Baba Stijena was somewhere between 350 and 1,200 metres as the crow flies, but was unsure, Ekrem Pita, T. 3991 and 4003. Fatima Pita for her part estimated that distance to be between 200 and 300 metres, Fatima Pita, T. 5879.
1899. The Pitas house is separated from Baba Stijena by 5 centimetres on D49 (Map marked by Ekrem Pita). Although no scale is explicitly indicated on this map, the gridding appearing thereon would suggest that a measurement of 5.5 centimetres corresponds to 1,000 metres in actual distance D49 (Map marked by Ekrem Pita). Map D49 thus appears to indicate that the actual distance between the Pitas house and Baba Stijena is approximately (1,000/5.5) x 5 = 909 metres, Ekrem Pita, T. 3991 and 4003.
1900. Defence Final Trial Brief, para. 72. See also Acquittal Motion, para. 32."
"554. The Defence argues that it is not possible to determine the source of fire1971 because no on-site investigations were carried out to determine "the angle of descent in which the projectile, or part of the projectile, entered the body of Vildana Kapur".1972 The Trial Chamber does not consider the absence of on-site investigations or technical data concerning the point of entry of a bullet into the body critical to a determination of the source of fire. Sahic testified that she could see the SRK front line from Stara Cesta Street and that often the Stara Cesta Street area was targeted.1973 That front line was in the area north of Stara Cesta Street called Poljine, at a distance of approximately 300-400 metres from the spot where Vildana Kapur was shot.1974 Periodically, flashes of gunfire would be seen coming from Poljine.1975 Sahic further testified that on the day of the shooting, while she and her girlfriends were walking on Stara Cesta Street, the machine-gun flashes were visible in front of them on the SRK side of confrontation lines.1976 On the 360 degree photograph of the area where the shooting occurred, she pointed out a group of white houses beneath a rocky ridge with a dome on it where the shots had come from.1977 [ ] The Trial Chamber has no reason not to believe that Sahic was in a position to determine where the bullets striking the ground around her and her girlfriends came from. The Trial Chamber is satisfied beyond reasonable doubt that the bullet which wounded Vildana Kapur was fired from SRK-held territory."
"1971. Defence Final Trial Brief, para. 156.
1972. Id.
1973. [ahic, T. 2595.
1974. D153, D1793.
1975. Sahic, T. 2595.
1976. Sahic, T. 2595.
1977. Sahic, T. 2624."
P.13.2. Evidence of military presence in a particular area from which the attack was directed.
A.Legal source/authority and evidence:
Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, para. 294-295, 354, 511-512, 528, 530 :
"294. During trial, a considerable amount of evidence was tendered with regard to that group of buildings in Nedarici known as the "Institute for the Blind", allegedly a major source of fire in SRK-held territory against civilians of the surrounding areas. Witnesses marked the confrontation line on a map in court as going south along Lukavicka Cesta street from the intersection where the Institute for the Blind is located.807
295. [ ] With reference to the previous day, an"UNMO BH Command" report dated 13 July 1994 stated that the commander of 1st Battalion of the SRK Ilidza Brigade admitted that sniping did originate from Bravo PAPA 859578 ("House for the Blind People"), and "promised that there would be no more sniping from that place."812"
"807. Fajko Kadric, T. 3789-90; P3108 (map of the area); Faruk Kadric, T. 3742-3, showing the confrontation lines on D47, map of the area; however, the witness testified that he couldnt actually see the confrontation lines. All the buildings in front of the "blind Institute and the institute for children were destroyed", as those "below the institute for blind children, the Branka Bujica Street" (area marked on the map as Oslobodjenje-Studenski Dom, Zavod za Slijepe, Dom Penzionera). See also Kucanin, T. 4542, P3644.MK1 (map marked by witness). Faruk Kadric traced another confrontation line along Aleja Branca Bujica (now Aleja Bosne Srebrene), from Ante Babica street up the "Home for the Blind Children", D47 (map of the area marked by witness); Faruk Kadric, T. 3742-3. Witness DP4 marked Aleja Branca Bujica as SRK territory under constant fire from the ABiH; Witness DP4, T. 14137. [ ]
812. P2759 (UNMO report), page 4, para. 24; Witness DP17, T. 16856-61."
"354. The evidence remains uncontradicted that the area of the Orthodox Church from where the fire came from was within SRK-controlled territory.1129 The Trial Chamber is satisfied beyond reasonable doubt that the Orthodox Church area, Dobrinja IV, was controlled by SRK forces."
"1129. As mentioned above, the confrontation line at the eastern part of Dobrinja were along a street separating Dobrinja I and IV from Dobrinja II and III B and the buildings of Dobrinja IV and the Orthodox Church were placed within SRK-held territory, Dzevlan, T. 3516; Karavelic, T. 11816, P3728 (electronic map marked by Vahid Karavelic); P3732 (map marked by Ismet Hadzic); DP9, T. 14459, 14464, 14496; D1770 (map marked by witness); D1771 (electronic map marked by DP9)."
"511. The Trial Chamber heard uncontested testimonies to the effect that Spicasta Stijena was under the control of the SRK during the conflict. Witness DP53 and Vaso Nikolic, both SRK soldiers,1751 testified that they were sometimes posted in the immediate vicinity of Spicasta Stijena.1752 They explained that SRK troops manned trenches and an observation post there, from which soldiers could peer into certain sections of Sedrenik,1753 while the closest ABiH frontline lay approximately 50 metres below the ridgeline.1754 Witness DP20, also an SRK soldier,1755 occasionally went to this area1756 and confirmed that the SRK had deployed troops at Spicasta Stijena.1757 There was ongoing fighting between the ABiH and the SRK in this area1758 and in April 1993 for example, the ABiH captured an SRK trench on the ridgeline.1759 The SRK recaptured that trench a few days thereafter however1760 and overall the confrontation lines in the area did not change throughout the conflict except in limited instances.1761
512. Witnesses who did not belong to the SRK corroborated this evidence. Major Francis Thomas, a representative of the United Nations,1762 recalled visiting trenches belonging to the SRK near Spicasta Stijena.1763 Witness E, a resident of Sedrenik,1764 concluded that the SRK controlled the ridgeline based on the shouts and expletives which she could hear coming from there.1765 Nazija Ocuz, another resident of Sedrenik,1766 testified that she too believed that the SRK controlled Spicasta Stijena because she had seen two SRK soldiers arguing there during the conflict.1767"
"1751. Witness DP53, T. 16114-5; Nikolic, T. 15962.
1752. Witness DP53, T. 16165, 16169, 16177-8; Nikolic, T. 15961-2 and 15981.
1753. Witness DP53, T. 16170 and 16178; Nikolic, T. 15981.
1754. Witness DP53, T. 16153; Nikolic, T. 15982.
1755. Witness DP20, T. 15517.
1756. Witness DP20, T. 15777.
1757. Witness DP20, T. 15770-1.
1758. Witness DP53, T. 16144; Nikolic, T. 15975.
1759. Witness DP53, T. 16152-3; Nikolic, T. 15980 and 16005.
1760. Witness DP53, T. 16155.
1761. Witness DP53, T. 16124. One of the consequences of this ongoing fighting was that the trees on the ridgeline were damaged and felled as the conflict wore on, Witness DP53, T. 16194-5.
1762. Thomas, T. 9255.
1763. Thomas, T. 9325.
1764. Witness E, T. 4033.
1765. Witness E, T. 4067 and 4072-3.
1766. Ocuz, T. 4164.
1767. Ocuz, T. 4166 and 4188. "
"528. Maps marked by soldiers of both the SRK and the ABiH indicate that the two armies faced each other along a confrontation line located in the south-eastern quadrant of Sarajevo, with the ABiH controlling the northern base of Mount Trebevic.1842 Testimonies heard by the Trial Chamber corroborated this evidence. DP1, who provided humanitarian relief for the Serb population living in Sarajevo during the conflict,1843 explained that one of his acquaintances had dug trenches at the foot of Mount Trebevic for the ABiH.1844 Akif Mukanovic, a soldier of the ABiH deployed in that area,1845 confirmed the existence of such trenches.1846"
1842. D1778 (Map marked by Witness DP11); D1809 (Map marked by Witness DP16); P3728 (Map related to scheduled sniping incident number 11 marked by Vahid Karavelic).
1843. Witness DP1, T. 13252-3.
1844. Witness DP1, T. 13342 and 13346.
1845. Mukanovic, T. 3097.
1846. Mukanovic, T. 3097. 3099.
"530. In particular, Carl Harding, a UNMO serving in Sarajevo at the time Anisa Pita was shot,1862 explained that, except for one instance when the ABiH occupied a part of this road for a "short while"1863 before retreating,1864 the road leading to Pale was controlled by the SRK1865 and that the position of the confrontation lines in this area was "very static because the ground was very difficult [and] is very, very steep and closely wooded [so that] the road that went to Pale was a significant boundary for both sides."1866 The Trial Chamber is satisfied that this and the other evidence from a military expert for the Defence, an international journalist and a senior United Nations representative establish beyond reasonable doubt that the SRK operated from the general area of Baba Stijena."
1862. Harding served as a UNMO in Sarajevo from July 1992 to January 1993. Harding, T. 4311.
1863. Harding, T. 4459-60. Harding did not indicate when this attack took place.
1864. Harding, T. 4460. Witness DP11 confirmed that the ABiH frequently attacked this road. Witness DP11, T. 15064.
1865. Harding, T. 4462.
A.Legal source/authority and evidence:
Prosecutor v. Zoran Kuprekić et al., Case No. IT- 95-16-T, Judgement (TC), 14 January 2000, paras . 527, 534:
"527. As for reprisals against civilians, under customary international law they are prohibited as long as civilians find themselves in the hands of the adversary. With regard to civilians in combat zones, reprisals against them are prohibited by Article 51(6) of the First Additional Protocol of 1977, whereas reprisals against civilian objects are outlawed by Article 52(1) of the same instrument.
[ ]
534. The existence of this rule was authoritatively confirmed, albeit indirectly, by the International Law Commission. In commenting on sub-paragraph d of Article 14 (now Article 50) of the Draft Articles on State Responsibility, which excludes from the regime of lawful countermeasures any conduct derogating from basic human rights, the Commission noted that Article 3 common to the four 1949 Geneva Conventions prohibits any reprisals in non-international armed conflicts with respect to the expressly prohibited acts as well as any other reprisal incompatible with the absolute requirement of humane treatment.793 It follows that, in the opinion of the Commission, reprisals against civilians in the combat zone are also prohibited. This view, according to the Trial Chamber, is correct. However, it must be supplemented by two propositions. First, Common Article 3 has by now become customary international law.794 Secondly, as the International Court of Justice rightly held in Nicaragua, it encapsulates fundamental legal standards of overarching value applicable both in international and internal armed conflicts.795 Indeed, it would be absurd to hold that while reprisals against civilians entailing a threat to life and physical safety are prohibited in civil wars, they are allowed in international armed conflicts as long as the civilians are in the combat zone."
"793. See the Commissions comments on the former Article 14 of the IInd Part of the Draft Articles in Yearbook of the International Law Commission, 1995, Volume II, Part Two, A/CN.4/SER.A/1995/Add.1 (Part 2) (State responsibility), para. 18, p. 72.
794. See in this regard Military and Paramilitary Activities in and Against Nicaragua (Merits), Judgment of 27 June 1986, ICJ Reports 1986, p. 113, especially at para. 218.
795. Ibid., p. 114 at para. 219."
Additional Protocol I to the Geneva Conventions, art. 51(6):
"Art. 51 Protection of the civilian population
[ ]
6. Attacks against the civilian population or civilians by way of reprisals are prohibited."
A.Legal source/authority and evidence:
Prosecutor v. Zoran Kuprekić et al., Case No. IT- 95-16-T, Judgement (TC), 14 January 2000, paras. 527, 534:
"527. As for reprisals against civilians, under customary international law they are prohibited as long as civilians find themselves in the hands of the adversary. With regard to civilians in combat zones, reprisals against them are prohibited by Article 51(6) of the First Additional Protocol of 1977, whereas reprisals against civilian objects are outlawed by Article 52(1) of the same instrument.
[ ]
534. The existence of this rule was authoritatively confirmed, albeit indirectly, by the International Law Commission. In commenting on sub-paragraph d of Article 14 (now Article 50) of the Draft Articles on State Responsibility, which excludes from the regime of lawful countermeasures any conduct derogating from basic human rights, the Commission noted that Article 3 common to the four 1949 Geneva Conventions prohibits any reprisals in non-international armed conflicts with respect to the expressly prohibited acts as well as any other reprisal incompatible with the absolute requirement of humane treatment.793 It follows that, in the opinion of the Commission, reprisals against civilians in the combat zone are also prohibited. This view, according to the Trial Chamber, is correct. However, it must be supplemented by two propositions. First, Common Article 3 has by now become customary international law.794 Secondly, as the International Court of Justice rightly held in Nicaragua, it encapsulates fundamental legal standards of overarching value applicable both in international and internal armed conflicts.795 Indeed, it would be absurd to hold that while reprisals against civilians entailing a threat to life and physical safety are prohibited in civil wars, they are allowed in international armed conflicts as long as the civilians are in the combat zone."
"793. See the Commissions comments on the former Article 14 of the IInd Part of the Draft Articles in Yearbook of the International Law Commission, 1995, Volume II, Part Two, A/CN.4/SER.A/1995/Add.1 (Part 2) (State responsibility), para. 18, p. 72.
794. See in this regard Military and Paramilitary Activities in and Against Nicaragua (Merits), Judgment of 27 June 1986, ICJ Reports 1986, p. 113, especially at para. 218.
795. Ibid., p. 114 at para. 219."
Additional Protocol I to the Geneva Conventions, art. 51(6):
"Art. 51 Protection of the civilian population
[ ]
6. Attacks against the civilian population or civilians by way of reprisals are prohibited."
P.14. Evidence with regard to the identity of the perpetrator.
A.Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 284:
"284. The Chamber has already found that on 6 December 1991 there was an attack launched by the JNA forces against the Old Town of Dubrovnik.909 It is also the finding of the Chamber, as recorded earlier, that there were no military objectives within the Old Town and the attack was not launched or maintained in the belief that there were.910"
"909. See supra, paras 99-119 ; 121-145.
910. See supra, paras 193- 194."
P.15. Evidence with regard to the source of the attack.
P.15.1. Evidence with regard to direction of attack.
A.Legal source/authority and evidence:
Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, paras. 257, 264, 270, 454, 466-491, 516, 535, 554:
"257. Considering the location of the tram when it was hit and that it was impacted on the left-hand side in the direction it was travelling, the fact that there was an unobstructed line of sight between the site of the event and the area of the Jewish Cemetery under the SRK control, the approximate distance between these two areas, lead the Trial Chamber to find that the only reasonable conclusion is that the shot which struck the tram was fired from this area held by the SRK."
"264. From the orientation of the bus and of the bullet marks, Ashton concluded that the gunfire originated from the area above the sports stadium in Grbavica.666"
"666. Ashton, T. 1384, 1386. The witness marked direction of fire on a map (P 3645)."
"270. The Trial Chamber considers that the absence of more detailed medical documentation or technical information on the point of entry of the bullet into the bodies of the victims is not crucial for determining the source of fire. Witness J, a police officer from the Novo Sarajevo Public Security Station who conducted an on-site investigation of the event,699 concluded that the shot had been fired from the SRK positions on Ozrenska Street.700 He based his conclusion not only on the common knowledge that snipers operated in that area,701 but also on the fact that the police was unable to immediately access the site of the incident because of on-going shooting from those positions.702 Nafa Taric recalled speaking to five people at the hospital where she was taken who had been injured by sniper fire originating in the area of Ozrenska Street within an hour of the incident in which she and her daughter were wounded.703 DP10 and DP16 testified that the site of the incident was not fully visible from SRK positions in Ozrenska Street.704 However, visual evidence presented to the Trial Chamber demonstrates that there was an unobstructed line of sight from SRK positions on Hrasno Brdo to the location of the incident.705 Taking this into account, the only reasonable inference is that Nafa and Elma Taric were injured by a shot fired from this area.
699. Witness J, T. 8057; D107 (Official report of the 4th Hrasno Police Station) (under seal). He found no bullet fragments at the scene. T. 8057.
700. D107 (Official report of the 4th Hrasno Police Station) (under seal). Hinchliffe took a laser range finder reading of the distance from the area of Tagolavska road, where he saw trenches and which he suspects was the area of the source of fire, to the spot where the victims were wounded to be 700 metres, Hincliffe, T. 12979-81.
701. Witness J, T. 8084.
702. Witness J, T. 8084.
703. Nafa Taric, T. 3195-8.
704. Witness DP10 said that the street where the incident occurred was only partially visible from the SRK positions, since a white building obstructed the line of sight. However, later in his testimony, he admitted that a line of sight did exist, although he said that the part of the intersection that was visible was in fact sheltered by screens, Witness DP10, T. 14373, 14397, 14411-5. Witness DP16 testified that the site of the incident was not visible from SRK lines, Witness DP16, T. 16576.
705. See photograph No. 1 of P3268 (set of photographs of site of incident); P3280I (videotape); P3279H (360 degree photograph of the location of scheduled sniping incident 10).
"454. Weapon specialists indicated that the noise made by the firing of a mortar can be used to determine the approximate direction of fire.1647 Hamill testified that an observer hearing the sound of a mortar being fired "will not [be able] to determine a location, just [a] direction."1648"
1647. Hamill, T. 6193-4; Kovacs, T. 11482-4; P3734 (Shelling report of Richard Higgs dated 12 February 2002).
1648. Hamill, T. 6193-4.
"ii. Range of Fire Related to the Angle of Descent
466. Following a variety of methods, several investigators and experts drew conclusions on the angle of descent of the mortar shell. By measurement and reconstruction of the impact site, and by interpretation of the shrapnels impact pattern, most experts were led to the conclusion that the angle of descent was close to 60 degrees.1676
467.The method of repositioning the tail fin in the tunnel and measurements on the tunnel after extraction of the tail fin have been challenged by Vilicic as unreliable. The Majority accepts that the removal of the tail-fin may have caused some disturbance to the shape of the tunnel. However, the shrapnel imprints recognized by experts as typical for an angle of descent of approximately 60 degrees, as well as the range calculated by Vilicic (55.6 to 62.5 degrees) based on measurements of the elliptical imprints by Sabljica, were not influenced by the disturbance of the tunnel and were consonant with the measurements performed by Zecevic, using a quadrant after having replaced the tailfin. The Majority notes that Zecevic has shown awareness of the possible disturbance of the tunnel and has testified that the lower part of the tunnel was relatively well preserved.
468. In its conclusions, the UN report rejected the measurements of the shells angle of descent (about 80 degrees) made on 5 February 1994 by Verdy who made a mathematical error, ignored the measures made by Russell (68-73 degrees) on the same day, and gives a range of 950 to 1,100 mils (53.4 to 61.9 degrees), which the report emphasised was determined on 11 February 1994.1677 The Majority understands that the UN Report endorsed the findings made by Khan and Hamill although it cautioned that on the basis of the condition of the crater it was not possible to estimate with any "acceptable degree of accuracy" the angle of descent. On this basis, the Majority rejects the measures of the shells angle of descent made by Verdy and Russell and accepts the range determined by Khan and Hamill, which is consistent with the results obtained from calculations based on measurements of earlier investigations.
469. The certain lower limit of the angle of descent is approximately 50 degrees, since at a lesser angle the shell would have collided with the surrounding buildings. On the basis of the evidence presented, the Majority finds that the shells angle of descent was approximately 60 degrees. Allowing for a margin of error of 5 degrees, the Majority finds that the angle of descent was not greater than 65 degrees.
470. The Defence claims that an exact angle of descent should be measured in order to determine whether the shell was fired from ABiH- or SRK-controlled territory. The Majority rejects this claim. Every measurement is by its very nature a measurement within a range. The more precise the measurement, the smaller the margin of error. The Majority considers that its finding as to the angle of decent are based not on one measurement method but on calculations based on the measurement of elliptical imprints, the interpretation of the shrapnel pattern by experts, and on other methods reviewed above. The Majority has also taken into consideration that measurements of a lesser precision were already adjusted to reflect the margin of error.
471. The UN report gives a range of 300 to 5,551 meters as the horizontal distance over which the mortar shell could have travelled. This stated range covers all possible angles of firing and charges.
472. The Majority accepts that from the angle of descent alone it is not possible to calculate the distance a shell travelled.1678 The number of charges (1 to 6) used in addition to the initial (0) charge progressively increase the distance a shell travels.1679
473. Thus a 120 mm mortar shell fired across a level field at an 0+1 charge at a steep angle (85?) and also landing at a steep angle (85.3 degrees) travels horizontally no more than 275 metres, whereas the same shell fired at an 0+6 charge at the same launch angle (85 degrees) and a similar angle of descent (86.2 degrees) travels more than 1,160 metres. If fired at a low angle (45 degrees) with a 0+1 charge the shell travels horizontally no more than 1,574 metres (and lands at around 47.3 degrees ), whereas the same shell fired at an 0+6 charge travels more than 6,400 meters (landing at around 55.6 degrees).1680
474. It was not until the trial stage that both Prosecution and Defence experts introduced into their analyses the relation between the tail-fins penetration into the ground of the market and the speed of the projectile at impact, an element ignored until then by any investigator or expert.
475. The experts reasoning is based upon the following. The depth of penetration of the tail-fin is indicative of the velocity of the shell upon impact. This velocity is of course related to the velocity of the shell at the moment it was fired1681. The velocity at firing depends on the number of increment charges used. As indicated above, the greater the velocity, the greater the distance travelled, where the shells launch angle is kept constant.
476. The mortar shell used in this case exploded on impact. The experts for both parties agree that the explosion creates a backwards thrust against the tail-fin. If the velocity of the shell, and therefore of the tail-fin, on impact had been 150 m/sec (taking the lowest figure presented to the Trial Chamber), the tail-fin would have just fallen to the ground. If the impact velocity was lesser, the tail -fin would have been propelled backwards. If the impact velocity had been greater, the tail-fin would have overcome the backwards thrust and continued forward.
477. In the present case, the tail-fin continued its trajectory in the forward direction at a speed reduced by 150 m/sec, but still sufficient to embed itself in the ground.1682
478. Zecevic estimated that the impact velocity of the shell must have been greater than 200 m/s for the tail-fin to have embedded itself at the depth he measured. In Zecevics opinion, such a velocity can only be achieved by a shell fired at a 0+4 charge or more. At an angle of descent of 65? the shell would have travelled more than 4.5 kilometres on an 0+4 charge. (As the Majority will explain below, even if, by taking the most favourable figures, an impact speed greater than 200 m/s could be achieved by the lower charge 0 + 3, this does not change the final conclusion.)
479. The Majority pauses here to note that Markale market is at an altitude of approximately 550 metres.1683 The confrontation line to the north-east of the market was at an altitude of some 400 metres higher. Continuing in the same direction past the confrontation line, the ground further rose to reach heights of up to 500 to 650 metres above the market at around 2-2. 5 kilometres past the line.
480. As discussed above, Vilicic at first stated that for the tail-fin to embed itself at the depth measured by Zecevic, the shell would have needed an impact velocity of 528.8 m/sec. This speed cannot be achieved by any known mortar. Vilicic based this calculation on the assumption that the ground of impact was of solid concrete for the entire depth of the tail-fins penetration. Confronted with evidence that the market had a top layer of 2 centimetres of asphalt resting on soil consisting of sand and stones,1684 Vilicic then reviewed his calculations and concluded that penetration of 20 cm by the tail -fin would require an impact velocity for the shell of 268.4 m/sec. A 120 mm mortar shell can achieve a speed of approximately 260 m/s if fired at an 0+6 charge and if the altitude of the impact site is 500 metres below the position from which the shell was fired.1685
481. In brief, both experts, basing themselves on a drop angle of 55 to 65 degrees, concluded that an 0+4 or greater charge would be required to attain the impact velocity necessary for the tail-fin to penetrate the ground to the extent it did. At the 65 degrees angle of descent (which is, according to the Majority, the maximum conceivable angle on the evidence), tables provided by both experts show that the horizontal distance the shell would have travelled comes close to 6,000 metres at charge 0+6 and more than 4,500 meters at charge 0+4.1686
482. It follows that the shell which exploded in Markale market travelled a distance considerably greater than 2,600 metres from the north-east direction, placing the position from which the shell was fired well within SRK-controlled territory.
483. Noting however that the Defence disputes the measure of the depth of penetration of the tail-fin in the ground, submitting that an error in that measure could lead to serious miscalculation of the range of fire, the Majority, out of an abundance of caution, will consider the possibility that the tail-fin penetrated the soil to a lesser depth than the one found by Zecevic and that the shell was fired with an 0+3 increment charge, and therefore that the shell travelled a shorter distance than the one determined above.
484. The Majority recalls briefly that on the day of the incident, Sabljica and Cavcic did not measure the depth of penetration of the tail-fin in the ground but measured a 9-centimetre deep crater. The day after the incident, Zecevic and his colleagues measured the depth of penetration of the tail-fin in the ground from the top asphalt layer to the bottom of the tunnel where the tail-fin had been embedded to be 200 to 250 mm, depending on the side of the hole measured. The UN representatives did not measure the depth of penetration of the tail-fin in the ground giving the reason that such a measurement should have been taken right after the tail-fin was removed from the ground of Markale market. However, Dubant noticed that during his crater examination conducted on 11 February 1994, the crater was still sharply defined and was 11 centimetres deep. There is no evidence in the Trial Record which casts doubt on the measurements made by the local investigative teams. The Majority is convinced that the crater caused by the explosion was approximately 9 centimetres deep and that the depth of the tunnel of the tail-fin and the depth of the crater were together 200-250 mm.
485. The Majority will allow that the shell which struck Markale market impacted on ground consisting of a mixture of soil and stones, thus ignoring the force that would have been required to overcome the higher level of resistance presented by a top layer of asphalt. This favours the Defence case. The Majority also uses the most conservative measurement of the depth of the tail-fins penetration, taking the length to be 10 cm. This, again, favours the Defence case.
486. To penetrate 10 cm of ground consisting of soil and stones, the tail-fin would need a post-explosion velocity of 57 m/sec.1687 This gives a shell impact velocity of 150+57=207 m/sec.
487. The firing velocity of a shell on an 0+3 charge is 211 m/s1688. The Majority understands from the evidence of the experts that the impact velocity of a shell fired over a level field is slightly less than its velocity at firing. A shell fired at the 0+3 charge will lose about 30 m/s of its velocity between firing and impact. However, where the altitude of the impact site is less than that of the firing site, the shell will also gain about 30 m/s from having a longer drop trajectory. As always, in choosing these figures1689 the Majority has interpreted the evidence in a fashion favourable to the Defence case.
488. A shell on an 0+3 charge fired over the height differential applicable in this case would have an impact velocity of around 211 m/s. This would be just sufficient for the tail-fin to embed itself to the stipulated depth. But it would also mean that, at a drop angle of 65 degrees, and taking into account a difference in altitude of 400 metres, the shell would have still travelled about 3.6 km from its point of origin to its point of impact. Once again, this places the point of origin well within SRK-controlled territory.
489. This further consideration assures the Majority that the experts findings are buffered by a large margin of safety. There is no doubt that, given the characteristics of the remains of the explosion of the 120 mm mortar shell at Markale market, the shell could not have been fired from any place on the ABiH side of the confrontation lines in a direction north-northeast of Markale market.
490. Finally, the Majority notes that a shell fired at the 0+2 charge1690 could not attain the required velocity over the given height differential for its tail-fin to penetrate the surface of Markale market to the measured extent.
iii. Non-technical Evidence in relation to the Source of Fire
491. The Majority also emphasises that non-technical evidence supports the finding that a heavy weapon was fired from the direction north-northeast of Markale market from SRK-controlled territory at the time of the incident. The Trial Chamber finds reliable the testimony of Witness AF who heard at the time of the incident the sound of a heavy weapon being fired from behind an SRK position, Spicasta Stijena, at Mrkovici. The fact that Witness AF was at his mothers house in Sedrenik when he heard that sound and not at his place in Vratnik does not cast doubt on his ability to assert a direction. The Majority is convinced by the evidence in the Trial Record, which establishes that the noise made by a firing mortar can be used to determine the approximate direction of fire."
"1676. Khan, 56-62 degrees, Hamill, 53-62 degrees; Zecevic Ballistic Report, 55-65 degrees; Vilicic Shelling Report, 55,6-62,5 degrees.
1677. The Majority notes that the UN report does not include the statement of Russell (the statements of the Frebat team, Verdy, Khan, Hamill, Grande and Dubant are included) and gives no reason for that ommission.
1678. It appears from the tables of fire attached to Vilicic Report that angles of descent are in some relation with angles of firing. In fact, decreasing the firing angle by one degree when closer to 90 degrees results in far greater distance gained than decreasing the firing angle by one degree when closer to 45 degrees. Therefore, upward changes of the firing angle in the area considered (between 50 and 65 degrees) increase the traveling distance much less than similar changes around the firing angle of 85 degrees.
1679. If the angle of firing remains unchanged.
1680. Table 2 in Vilicic Shelling Report.
1681. That a higher velocity at firing results in a higher velocity at impact is not only a fact of common knowledge but also clearly illustrated in Table 2 in Vilicic Shelling Report.
1682. The tail-fin of the mortar shell was found embedded in the ground; the UN team used a knife to remove the tail-fin from the ground. See the evidence above in relation to investigation by the UN and the local investigative team.
1683. Vilicic testified that the altitude of the Markale market was at 600 meters. Maps in evidence that contain contour lines indicate a slightly lesser altitude. Similarly Vilicic testified that no elevation higher than 1000 meters existed in the northerly direction up to Mrkovici, which is also contradicted by the maps, indicating elevations of above 1000 metres in and around locations called Gornji Mrkovici and Donji Mrkovici.
1684. C9 mentions "ground and stone".
1685. P3276.1 (Zecevic Shelling Report).
1686. Based on comparison of the tables in Zecevic Shelling Report, p. 6 and C8, C9.
1687. C8, C9.
1688. Table on p. 6 of Zecevic Ballistic Report, this value is more favorable to the Defence case than the value of 219 m/sec for V? given by Vilicic.
1689. The Majority took the most favourable figures from table 2 in Vilicic Shelling Report and C5: the loss of speed in flight was taken at minimum level, while the increase of speed caused by the difference of altitude was taken at a level, consistent with firing at an 0+3 charge, at a difference of altitude of 500 meters, both options resulting in a possibly higher speed of impact when firing at this lower charge.
1690. The velocity at firing at a 0+2 charge is approximately 40m/sec lower compared to firing at a 0+3 charge which velocity could not generate the velocity at impact needed to explain the embedment of the tailfin in the ground. But even if fired at a 0+2 level the shell would have been fired at a distance of 2577 m, which would still be approximately at the SRK-held confrontation line."
"516. According to witnesses who belonged to the latter army, SRK soldiers in the area did not fire at civilians,1783 but the Majority notes that evidence from other witnesses from a wide variety of backgrounds, including a senior UN representative in Sarajevo and residents of the city, indicates that civilians in ABiH-controlled territory in the vicinity of Spicasta Stijena regularly experienced being shot at.1784 Based on this last evidence, the unobstructed line of sight to Spicasta Stijena as well as the shooting which was directed at the car transporting Witness E to hospital and which came from the direction of this ridge, the Majority is satisfied that the bullet which injured Witness E was fired from the area of Spicasta Stijena. The Majority accepts in particular that since Witness E was kneeling and facing the ridge while playing with flowers, her posture would have caused her back to arch slightly, so that the bullet fired from Spicasta Stijena entered the upper part of her back before exiting through a lower region of her body."
"1783. Nikolic, T. 16002-3, 16049 and 16091-2; DP53, T. 16184; DP34, T. 17892; Knezevic, T. 18962-3.
1784. Thomas, T. 9325-6; ?ehbajraktarevic, T. 1792; Witness AF, T. 5485-6, 5490 and 5499; Jusovic, T. 4147-8 and Ocuz, T. 4176-7."
"535. Both parents believed that the bullet that had injured their daughter had been fired from a ridge known as Baba Stijena, because that location was visible from their house and was controlled by the SRK.1895 Two photographs and a video taken from the front door of the Pitas house show this entrance to be completely walled in by neighbouring houses and structures such as fences, offering only a narrow line of sight in the direction of Baba Stijena.1896 [ ] Hinchliffe measured the distance from Anisa Pitas house to Baba Stijena to be 895 metres1898 and maps tendered by the Defence in relation to this incident indicate that distance to be on the order of 900 metres.1899 The Trial Chamber also notes that the Defence argued that no medical documents were tendered which would "provide information about the position of entry-and-exit wound on the leg of Anisa Pita, or which would provide the possibility to determine the direction of wound canal, including the angle and the direction from where the bullet came from."1900 Nonetheless, based on the approximate distance of 900 metres and the existence of a line of sight from the Pitas front entrance only in the direction of Baba Stijena, the Majority is satisfied beyond reasonable doubt that Anisa Pita was injured by a shot fired from the area of that ridge."
"1895. Ekrem Pita, T. 3990-1 and 4001; Fatima Pita, T. 5879 and 5899-5900; P3280P (video of the location of scheduled incident number 2). Fatima Pita had also seen firing, mostly in the form of shelling, originating from the area of Baba Stijena at night when she left her cellar to go to the bathroom on the ground floor of her house, Fatima Pita, T. 5918 and 5925.
1896. P3266 (photograph taken from the location of scheduled incident number 2); P3279P (360 degree photograph of location of scheduled incident number 2); P3280P (video taken from the location scheduled incident number 2). A picture taken from the entrance to the Pitas house shows that a small tree lies in the direction of Baba Stijena, partially blocking the line of sight. P3267 (Photograph taken from entrance to the Pitas house). Ekrem Pita explained though that this tree was planted after the incident, Ekrem Pita, T. 3992.
1897. P3704 (Map of Sarajevo); Van Lynden, T. 2103; D1925 (Report by Defence military expert Radovan Radinovic).
1898. Hinchliffe, T. 12946. Ekrem Pita thought that the distance from his house to Baba Stijena was somewhere between 350 and 1,200 metres as the crow flies, but was unsure, Ekrem Pita, T. 3991 and 4003. Fatima Pita for her part estimated that distance to be between 200 and 300 metres, Fatima Pita, T. 5879.
1899. The Pitas house is separated from Baba Stijena by 5 centimetres on D49 (Map marked by Ekrem Pita). Although no scale is explicitly indicated on this map, the gridding appearing thereon would suggest that a measurement of 5.5 centimetres corresponds to 1,000 metres in actual distance D49 (Map marked by Ekrem Pita). Map D49 thus appears to indicate that the actual distance between the Pitas house and Baba Stijena is approximately (1,000/5.5) x 5 = 909 metres, Ekrem Pita, T. 3991 and 4003.
1900. Defence Final Trial Brief, para. 72. See also Acquittal Motion, para. 32."
"554. The Defence argues that it is not possible to determine the source of fire1971 because no on-site investigations were carried out to determine "the angle of descent in which the projectile, or part of the projectile, entered the body of Vildana Kapur".1972 The Trial Chamber does not consider the absence of on-site investigations or technical data concerning the point of entry of a bullet into the body critical to a determination of the source of fire. Sahic testified that she could see the SRK front line from Stara Cesta Street and that often the Stara Cesta Street area was targeted.1973 That front line was in the area north of Stara Cesta Street called Poljine, at a distance of approximately 300-400 metres from the spot where Vildana Kapur was shot.1974 Periodically, flashes of gunfire would be seen coming from Poljine.1975 Sahic further testified that on the day of the shooting, while she and her girlfriends were walking on Stara Cesta Street, the machine-gun flashes were visible in front of them on the SRK side of confrontation lines.1976 On the 360 degree photograph of the area where the shooting occurred, she pointed out a group of white houses beneath a rocky ridge with a dome on it where the shots had come from.1977 [ ] The Trial Chamber has no reason not to believe that Sahic was in a position to determine where the bullets striking the ground around her and her girlfriends came from. The Trial Chamber is satisfied beyond reasonable doubt that the bullet which wounded Vildana Kapur was fired from SRK-held territory."
"1971. Defence Final Trial Brief, para. 156.
1972. Id.
1973. [ahic, T. 2595.
1974. D153, D1793.
1975. Sahic, T. 2595.
1976. Sahic, T. 2595.
1977. Sahic, T. 2624."
P.15.2. Evidence of military presence in a particular area from which the attack was directed.
A.Legal source/authority and evidence:
Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, para. 294-295, 354, 511-512, 528, 530 :
"294. During trial, a considerable amount of evidence was tendered with regard to that group of buildings in Nedarici known as the "Institute for the Blind", allegedly a major source of fire in SRK-held territory against civilians of the surrounding areas. Witnesses marked the confrontation line on a map in court as going south along Lukavicka Cesta street from the intersection where the Institute for the Blind is located.807
295. [ ] With reference to the previous day, an"UNMO BH Command" report dated 13 July 1994 stated that the commander of 1st Battalion of the SRK Ilidza Brigade admitted that sniping did originate from Bravo PAPA 859578 ("House for the Blind People"), and "promised that there would be no more sniping from that place."812"
"807. Fajko Kadric, T. 3789-90; P3108 (map of the area); Faruk Kadric, T. 3742-3, showing the confrontation lines on D47, map of the area; however, the witness testified that he couldnt actually see the confrontation lines. All the buildings in front of the "blind Institute and the institute for children were destroyed", as those "below the institute for blind children, the Branka Bujica Street" (area marked on the map as Oslobodjenje-Studenski Dom, Zavod za Slijepe, Dom Penzionera). See also Kucanin, T. 4542, P3644.MK1 (map marked by witness). Faruk Kadric traced another confrontation line along Aleja Branca Bujica (now Aleja Bosne Srebrene), from Ante Babica street up the "Home for the Blind Children", D47 (map of the area marked by witness); Faruk Kadric, T. 3742-3. Witness DP4 marked Aleja Branca Bujica as SRK territory under constant fire from the ABiH; Witness DP4, T. 14137. [ ]
812. P2759 (UNMO report), page 4, para. 24; Witness DP17, T. 16856-61."
"354. The evidence remains uncontradicted that the area of the Orthodox Church from where the fire came from was within SRK-controlled territory.1129 The Trial Chamber is satisfied beyond reasonable doubt that the Orthodox Church area, Dobrinja IV, was controlled by SRK forces."
"1129. As mentioned above, the confrontation line at the eastern part of Dobrinja were along a street separating Dobrinja I and IV from Dobrinja II and III B and the buildings of Dobrinja IV and the Orthodox Church were placed within SRK-held territory, Dzevlan, T. 3516; Karavelic, T. 11816, P3728 (electronic map marked by Vahid Karavelic); P3732 (map marked by Ismet Hadzic); DP9, T. 14459, 14464, 14496; D1770 (map marked by witness); D1771 (electronic map marked by DP9)."
"511. The Trial Chamber heard uncontested testimonies to the effect that Spicasta Stijena was under the control of the SRK during the conflict. Witness DP53 and Vaso Nikolic, both SRK soldiers,1751 testified that they were sometimes posted in the immediate vicinity of Spicasta Stijena.1752 They explained that SRK troops manned trenches and an observation post there, from which soldiers could peer into certain sections of Sedrenik,1753 while the closest ABiH frontline lay approximately 50 metres below the ridgeline.1754 Witness DP20, also an SRK soldier,1755 occasionally went to this area1756 and confirmed that the SRK had deployed troops at Spicasta Stijena.1757 There was ongoing fighting between the ABiH and the SRK in this area1758 and in April 1993 for example, the ABiH captured an SRK trench on the ridgeline.1759 The SRK recaptured that trench a few days thereafter however1760 and overall the confrontation lines in the area did not change throughout the conflict except in limited instances.1761
512. Witnesses who did not belong to the SRK corroborated this evidence. Major Francis Thomas, a representative of the United Nations,1762 recalled visiting trenches belonging to the SRK near Spicasta Stijena.1763 Witness E, a resident of Sedrenik,1764 concluded that the SRK controlled the ridgeline based on the shouts and expletives which she could hear coming from there.1765 Nazija Ocuz, another resident of Sedrenik,1766 testified that she too believed that the SRK controlled Spicasta Stijena because she had seen two SRK soldiers arguing there during the conflict.1767"
"1751. Witness DP53, T. 16114-5; Nikolic, T. 15962.
1752. Witness DP53, T. 16165, 16169, 16177-8; Nikolic, T. 15961-2 and 15981.
1753. Witness DP53, T. 16170 and 16178; Nikolic, T. 15981.
1754. Witness DP53, T. 16153; Nikolic, T. 15982.
1755. Witness DP20, T. 15517.
1756. Witness DP20, T. 15777.
1757. Witness DP20, T. 15770-1.
1758. Witness DP53, T. 16144; Nikolic, T. 15975.
1759. Witness DP53, T. 16152-3; Nikolic, T. 15980 and 16005.
1760. Witness DP53, T. 16155.
1761. Witness DP53, T. 16124. One of the consequences of this ongoing fighting was that the trees on the ridgeline were damaged and felled as the conflict wore on, Witness DP53, T. 16194-5.
1762. Thomas, T. 9255.
1763. Thomas, T. 9325.
1764. Witness E, T. 4033.
1765. Witness E, T. 4067 and 4072-3.
1766. Ocuz, T. 4164.
1767. Ocuz, T. 4166 and 4188. "
"528. Maps marked by soldiers of both the SRK and the ABiH indicate that the two armies faced each other along a confrontation line located in the south-eastern quadrant of Sarajevo, with the ABiH controlling the northern base of Mount Trebevic.1842 Testimonies heard by the Trial Chamber corroborated this evidence. DP1, who provided humanitarian relief for the Serb population living in Sarajevo during the conflict,1843 explained that one of his acquaintances had dug trenches at the foot of Mount Trebevic for the ABiH.1844 Akif Mukanovic, a soldier of the ABiH deployed in that area,1845 confirmed the existence of such trenches.1846"
1842. D1778 (Map marked by Witness DP11); D1809 (Map marked by Witness DP16); P3728 (Map related to scheduled sniping incident number 11 marked by Vahid Karavelic).
1843. Witness DP1, T. 13252-3.
1844. Witness DP1, T. 13342 and 13346.
1845. Mukanovic, T. 3097.
1846. Mukanovic, T. 3097. 3099.
"530. In particular, Carl Harding, a UNMO serving in Sarajevo at the time Anisa Pita was shot,1862 explained that, except for one instance when the ABiH occupied a part of this road for a "short while"1863 before retreating,1864 the road leading to Pale was controlled by the SRK1865 and that the position of the confrontation lines in this area was "very static because the ground was very difficult [and] is very, very steep and closely wooded [so that] the road that went to Pale was a significant boundary for both sides."1866 The Trial Chamber is satisfied that this and the other evidence from a military expert for the Defence, an international journalist and a senior United Nations representative establish beyond reasonable doubt that the SRK operated from the general area of Baba Stijena."
1862. Harding served as a UNMO in Sarajevo from July 1992 to January 1993. Harding, T. 4311.
1863. Harding, T. 4459-60. Harding did not indicate when this attack took place.
1864. Harding, T. 4460. Witness DP11 confirmed that the ABiH frequently attacked this road. Witness DP11, T. 15064.
1865. Harding, T. 4462.
A.Legal source/authority and evidence:
Prosecutor v. Zoran Kuprekić et al., Case No. IT- 95-16-T, Judgement (TC), 14 January 2000, paras. 527, 534:
"527. As for reprisals against civilians, under customary international law they are prohibited as long as civilians find themselves in the hands of the adversary. With regard to civilians in combat zones, reprisals against them are prohibited by Article 51(6) of the First Additional Protocol of 1977, whereas reprisals against civilian objects are outlawed by Article 52(1) of the same instrument.
[ ]
534. The existence of this rule was authoritatively confirmed, albeit indirectly, by the International Law Commission. In commenting on sub-paragraph d of Article 14 (now Article 50) of the Draft Articles on State Responsibility, which excludes from the regime of lawful countermeasures any conduct derogating from basic human rights, the Commission noted that Article 3 common to the four 1949 Geneva Conventions prohibits any reprisals in non-international armed conflicts with respect to the expressly prohibited acts as well as any other reprisal incompatible with the absolute requirement of humane treatment.793 It follows that, in the opinion of the Commission, reprisals against civilians in the combat zone are also prohibited. This view, according to the Trial Chamber, is correct. However, it must be supplemented by two propositions. First, Common Article 3 has by now become customary international law.794 Secondly, as the International Court of Justice rightly held in Nicaragua, it encapsulates fundamental legal standards of overarching value applicable both in international and internal armed conflicts.795 Indeed, it would be absurd to hold that while reprisals against civilians entailing a threat to life and physical safety are prohibited in civil wars, they are allowed in international armed conflicts as long as the civilians are in the combat zone."
"793. See the Commissions comments on the former Article 14 of the IInd Part of the Draft Articles in Yearbook of the International Law Commission, 1995, Volume II, Part Two, A/CN.4/SER.A/1995/Add.1 (Part 2) (State responsibility), para. 18, p. 72.
794. See in this regard Military and Paramilitary Activities in and Against Nicaragua (Merits), Judgment of 27 June 1986, ICJ Reports 1986, p. 113, especially at para. 218.
795. Ibid., p. 114 at para. 219."
Additional Protocol I to the Geneva Conventions, art. 51(6):
"Art. 51 Protection of the civilian population
[ ]
6. Attacks against the civilian population or civilians by way of reprisals are prohibited."
P.16. Evidence with regard to the identity of the perpetrator.
A.Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 284:
"284. The Chamber has already found that on 6 December 1991 there was an attack launched by the JNA forces against the Old Town of Dubrovnik.909 It is also the finding of the Chamber, as recorded earlier, that there were no military objectives within the Old Town and the attack was not launched or maintained in the belief that there were.910"
"909. See supra, paras 99-119 ; 121-145.
P.17. Evidence with regard to the source of the attack.
P.17.1. Evidence with regard to direction of attack.
A.Legal source/authority and evidence:
Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, paras. 257, 264, 270, 454, 466-491, 516, 535, 554:
"257. Considering the location of the tram when it was hit and that it was impacted on the left-hand side in the direction it was travelling, the fact that there was an unobstructed line of sight between the site of the event and the area of the Jewish Cemetery under the SRK control, the approximate distance between these two areas, lead the Trial Chamber to find that the only reasonable conclusion is that the shot which struck the tram was fired from this area held by the SRK."
"264. From the orientation of the bus and of the bullet marks, Ashton concluded that the gunfire originated from the area above the sports stadium in Grbavica.666"
"666. Ashton, T. 1384, 1386. The witness marked direction of fire on a map (P 3645)."
"270. The Trial Chamber considers that the absence of more detailed medical documentation or technical information on the point of entry of the bullet into the bodies of the victims is not crucial for determining the source of fire. Witness J, a police officer from the Novo Sarajevo Public Security Station who conducted an on-site investigation of the event,699 concluded that the shot had been fired from the SRK positions on Ozrenska Street.700 He based his conclusion not only on the common knowledge that snipers operated in that area,701 but also on the fact that the police was unable to immediately access the site of the incident because of on-going shooting from those positions.702 Nafa Taric recalled speaking to five people at the hospital where she was taken who had been injured by sniper fire originating in the area of Ozrenska Street within an hour of the incident in which she and her daughter were wounded.703 DP10 and DP16 testified that the site of the incident was not fully visible from SRK positions in Ozrenska Street.704 However, visual evidence presented to the Trial Chamber demonstrates that there was an unobstructed line of sight from SRK positions on Hrasno Brdo to the location of the incident.705 Taking this into account, the only reasonable inference is that Nafa and Elma Taric were injured by a shot fired from this area.
699. Witness J, T. 8057; D107 (Official report of the 4th Hrasno Police Station) (under seal). He found no bullet fragments at the scene. T. 8057.
700. D107 (Official report of the 4th Hrasno Police Station) (under seal). Hinchliffe took a laser range finder reading of the distance from the area of Tagolavska road, where he saw trenches and which he suspects was the area of the source of fire, to the spot where the victims were wounded to be 700 metres, Hincliffe, T. 12979-81.
701. Witness J, T. 8084.
702. Witness J, T. 8084.
703. Nafa Taric, T. 3195-8.
704. Witness DP10 said that the street where the incident occurred was only partially visible from the SRK positions, since a white building obstructed the line of sight. However, later in his testimony, he admitted that a line of sight did exist, although he said that the part of the intersection that was visible was in fact sheltered by screens, Witness DP10, T. 14373, 14397, 14411-5. Witness DP16 testified that the site of the incident was not visible from SRK lines, Witness DP16, T. 16576.
705. See photograph No. 1 of P3268 (set of photographs of site of incident); P3280I (videotape); P3279H (360 degree photograph of the location of scheduled sniping incident 10).
"454. Weapon specialists indicated that the noise made by the firing of a mortar can be used to determine the approximate direction of fire.1647 Hamill testified that an observer hearing the sound of a mortar being fired "will not [be able] to determine a location, just [a] direction."1648"
1647. Hamill, T. 6193-4; Kovacs, T. 11482-4; P3734 (Shelling report of Richard Higgs dated 12 February 2002).
1648. Hamill, T. 6193-4.
"ii. Range of Fire Related to the Angle of Descent
466. Following a variety of methods, several investigators and experts drew conclusions on the angle of descent of the mortar shell. By measurement and reconstruction of the impact site, and by interpretation of the shrapnels impact pattern, most experts were led to the conclusion that the angle of descent was close to 60 degrees.1676
467.The method of repositioning the tail fin in the tunnel and measurements on the tunnel after extraction of the tail fin have been challenged by Vilicic as unreliable. The Majority accepts that the removal of the tail-fin may have caused some disturbance to the shape of the tunnel. However, the shrapnel imprints recognized by experts as typical for an angle of descent of approximately 60 degrees, as well as the range calculated by Vilicic (55.6 to 62.5 degrees) based on measurements of the elliptical imprints by Sabljica, were not influenced by the disturbance of the tunnel and were consonant with the measurements performed by Zecevic, using a quadrant after having replaced the tailfin. The Majority notes that Zecevic has shown awareness of the possible disturbance of the tunnel and has testified that the lower part of the tunnel was relatively well preserved.
468. In its conclusions, the UN report rejected the measurements of the shells angle of descent (about 80 degrees) made on 5 February 1994 by Verdy who made a mathematical error, ignored the measures made by Russell (68-73 degrees) on the same day, and gives a range of 950 to 1,100 mils (53.4 to 61.9 degrees), which the report emphasised was determined on 11 February 1994.1677 The Majority understands that the UN Report endorsed the findings made by Khan and Hamill although it cautioned that on the basis of the condition of the crater it was not possible to estimate with any "acceptable degree of accuracy" the angle of descent. On this basis, the Majority rejects the measures of the shells angle of descent made by Verdy and Russell and accepts the range determined by Khan and Hamill, which is consistent with the results obtained from calculations based on measurements of earlier investigations.
469. The certain lower limit of the angle of descent is approximately 50 degrees, since at a lesser angle the shell would have collided with the surrounding buildings. On the basis of the evidence presented, the Majority finds that the shells angle of descent was approximately 60 degrees. Allowing for a margin of error of 5 degrees, the Majority finds that the angle of descent was not greater than 65 degrees.
470. The Defence claims that an exact angle of descent should be measured in order to determine whether the shell was fired from ABiH- or SRK-controlled territory. The Majority rejects this claim. Every measurement is by its very nature a measurement within a range. The more precise the measurement, the smaller the margin of error. The Majority considers that its finding as to the angle of decent are based not on one measurement method but on calculations based on the measurement of elliptical imprints, the interpretation of the shrapnel pattern by experts, and on other methods reviewed above. The Majority has also taken into consideration that measurements of a lesser precision were already adjusted to reflect the margin of error.
471. The UN report gives a range of 300 to 5,551 meters as the horizontal distance over which the mortar shell could have travelled. This stated range covers all possible angles of firing and charges.
472. The Majority accepts that from the angle of descent alone it is not possible to calculate the distance a shell travelled.1678 The number of charges (1 to 6) used in addition to the initial (0) charge progressively increase the distance a shell travels.1679
473. Thus a 120 mm mortar shell fired across a level field at an 0+1 charge at a steep angle (85?) and also landing at a steep angle (85.3 degrees) travels horizontally no more than 275 metres, whereas the same shell fired at an 0+6 charge at the same launch angle (85 degrees) and a similar angle of descent (86.2 degrees) travels more than 1,160 metres. If fired at a low angle (45 degrees) with a 0+1 charge the shell travels horizontally no more than 1,574 metres (and lands at around 47.3 degrees ), whereas the same shell fired at an 0+6 charge travels more than 6,400 meters (landing at around 55.6 degrees).1680
474. It was not until the trial stage that both Prosecution and Defence experts introduced into their analyses the relation between the tail-fins penetration into the ground of the market and the speed of the projectile at impact, an element ignored until then by any investigator or expert.
475. The experts reasoning is based upon the following. The depth of penetration of the tail-fin is indicative of the velocity of the shell upon impact. This velocity is of course related to the velocity of the shell at the moment it was fired1681. The velocity at firing depends on the number of increment charges used. As indicated above, the greater the velocity, the greater the distance travelled, where the shells launch angle is kept constant.
476. The mortar shell used in this case exploded on impact. The experts for both parties agree that the explosion creates a backwards thrust against the tail-fin. If the velocity of the shell, and therefore of the tail-fin, on impact had been 150 m/sec (taking the lowest figure presented to the Trial Chamber), the tail-fin would have just fallen to the ground. If the impact velocity was lesser, the tail -fin would have been propelled backwards. If the impact velocity had been greater, the tail-fin would have overcome the backwards thrust and continued forward.
477. In the present case, the tail-fin continued its trajectory in the forward direction at a speed reduced by 150 m/sec, but still sufficient to embed itself in the ground.1682
478. Zecevic estimated that the impact velocity of the shell must have been greater than 200 m/s for the tail-fin to have embedded itself at the depth he measured. In Zecevics opinion, such a velocity can only be achieved by a shell fired at a 0+4 charge or more. At an angle of descent of 65? the shell would have travelled more than 4.5 kilometres on an 0+4 charge. (As the Majority will explain below, even if, by taking the most favourable figures, an impact speed greater than 200 m/s could be achieved by the lower charge 0 + 3, this does not change the final conclusion.)
479. The Majority pauses here to note that Markale market is at an altitude of approximately 550 metres.1683 The confrontation line to the north-east of the market was at an altitude of some 400 metres higher. Continuing in the same direction past the confrontation line, the ground further rose to reach heights of up to 500 to 650 metres above the market at around 2-2. 5 kilometres past the line.
480. As discussed above, Vilicic at first stated that for the tail-fin to embed itself at the depth measured by Zecevic, the shell would have needed an impact velocity of 528.8 m/sec. This speed cannot be achieved by any known mortar. Vilicic based this calculation on the assumption that the ground of impact was of solid concrete for the entire depth of the tail-fins penetration. Confronted with evidence that the market had a top layer of 2 centimetres of asphalt resting on soil consisting of sand and stones,1684 Vilicic then reviewed his calculations and concluded that penetration of 20 cm by the tail -fin would require an impact velocity for the shell of 268.4 m/sec. A 120 mm mortar shell can achieve a speed of approximately 260 m/s if fired at an 0+6 charge and if the altitude of the impact site is 500 metres below the position from which the shell was fired.1685
481. In brief, both experts, basing themselves on a drop angle of 55 to 65 degrees, concluded that an 0+4 or greater charge would be required to attain the impact velocity necessary for the tail-fin to penetrate the ground to the extent it did. At the 65 degrees angle of descent (which is, according to the Majority, the maximum conceivable angle on the evidence), tables provided by both experts show that the horizontal distance the shell would have travelled comes close to 6,000 metres at charge 0+6 and more than 4,500 meters at charge 0+4.1686
482. It follows that the shell which exploded in Markale market travelled a distance considerably greater than 2,600 metres from the north-east direction, placing the position from which the shell was fired well within SRK-controlled territory.
483. Noting however that the Defence disputes the measure of the depth of penetration of the tail-fin in the ground, submitting that an error in that measure could lead to serious miscalculation of the range of fire, the Majority, out of an abundance of caution, will consider the possibility that the tail-fin penetrated the soil to a lesser depth than the one found by Zecevic and that the shell was fired with an 0+3 increment charge, and therefore that the shell travelled a shorter distance than the one determined above.
484. The Majority recalls briefly that on the day of the incident, Sabljica and Cavcic did not measure the depth of penetration of the tail-fin in the ground but measured a 9-centimetre deep crater. The day after the incident, Zecevic and his colleagues measured the depth of penetration of the tail-fin in the ground from the top asphalt layer to the bottom of the tunnel where the tail-fin had been embedded to be 200 to 250 mm, depending on the side of the hole measured. The UN representatives did not measure the depth of penetration of the tail-fin in the ground giving the reason that such a measurement should have been taken right after the tail-fin was removed from the ground of Markale market. However, Dubant noticed that during his crater examination conducted on 11 February 1994, the crater was still sharply defined and was 11 centimetres deep. There is no evidence in the Trial Record which casts doubt on the measurements made by the local investigative teams. The Majority is convinced that the crater caused by the explosion was approximately 9 centimetres deep and that the depth of the tunnel of the tail-fin and the depth of the crater were together 200-250 mm.
485. The Majority will allow that the shell which struck Markale market impacted on ground consisting of a mixture of soil and stones, thus ignoring the force that would have been required to overcome the higher level of resistance presented by a top layer of asphalt. This favours the Defence case. The Majority also uses the most conservative measurement of the depth of the tail-fins penetration, taking the length to be 10 cm. This, again, favours the Defence case.
486. To penetrate 10 cm of ground consisting of soil and stones, the tail-fin would need a post-explosion velocity of 57 m/sec.1687 This gives a shell impact velocity of 150+57=207 m/sec.
487. The firing velocity of a shell on an 0+3 charge is 211 m/s1688. The Majority understands from the evidence of the experts that the impact velocity of a shell fired over a level field is slightly less than its velocity at firing. A shell fired at the 0+3 charge will lose about 30 m/s of its velocity between firing and impact. However, where the altitude of the impact site is less than that of the firing site, the shell will also gain about 30 m/s from having a longer drop trajectory. As always, in choosing these figures1689 the Majority has interpreted the evidence in a fashion favourable to the Defence case.
488. A shell on an 0+3 charge fired over the height differential applicable in this case would have an impact velocity of around 211 m/s. This would be just sufficient for the tail-fin to embed itself to the stipulated depth. But it would also mean that, at a drop angle of 65 degrees, and taking into account a difference in altitude of 400 metres, the shell would have still travelled about 3.6 km from its point of origin to its point of impact. Once again, this places the point of origin well within SRK-controlled territory.
489. This further consideration assures the Majority that the experts findings are buffered by a large margin of safety. There is no doubt that, given the characteristics of the remains of the explosion of the 120 mm mortar shell at Markale market, the shell could not have been fired from any place on the ABiH side of the confrontation lines in a direction north-northeast of Markale market.
490. Finally, the Majority notes that a shell fired at the 0+2 charge1690 could not attain the required velocity over the given height differential for its tail-fin to penetrate the surface of Markale market to the measured extent.
iii. Non-technical Evidence in relation to the Source of Fire
491. The Majority also emphasises that non-technical evidence supports the finding that a heavy weapon was fired from the direction north-northeast of Markale market from SRK-controlled territory at the time of the incident. The Trial Chamber finds reliable the testimony of Witness AF who heard at the time of the incident the sound of a heavy weapon being fired from behind an SRK position, Spicasta Stijena, at Mrkovici. The fact that Witness AF was at his mothers house in Sedrenik when he heard that sound and not at his place in Vratnik does not cast doubt on his ability to assert a direction. The Majority is convinced by the evidence in the Trial Record, which establishes that the noise made by a firing mortar can be used to determine the approximate direction of fire."
"1676. Khan, 56-62 degrees, Hamill, 53-62 degrees; Zecevic Ballistic Report, 55-65 degrees; Vilicic Shelling Report, 55,6-62,5 degrees.
1677. The Majority notes that the UN report does not include the statement of Russell (the statements of the Frebat team, Verdy, Khan, Hamill, Grande and Dubant are included) and gives no reason for that ommission.
1678. It appears from the tables of fire attached to Vilicic Report that angles of descent are in some relation with angles of firing. In fact, decreasing the firing angle by one degree when closer to 90 degrees results in far greater distance gained than decreasing the firing angle by one degree when closer to 45 degrees. Therefore, upward changes of the firing angle in the area considered (between 50 and 65 degrees) increase the traveling distance much less than similar changes around the firing angle of 85 degrees.
1679. If the angle of firing remains unchanged.
1680. Table 2 in Vilicic Shelling Report.
1681. That a higher velocity at firing results in a higher velocity at impact is not only a fact of common knowledge but also clearly illustrated in Table 2 in Vilicic Shelling Report.
1682. The tail-fin of the mortar shell was found embedded in the ground; the UN team used a knife to remove the tail-fin from the ground. See the evidence above in relation to investigation by the UN and the local investigative team.
1683. Vilicic testified that the altitude of the Markale market was at 600 meters. Maps in evidence that contain contour lines indicate a slightly lesser altitude. Similarly Vilicic testified that no elevation higher than 1000 meters existed in the northerly direction up to Mrkovici, which is also contradicted by the maps, indicating elevations of above 1000 metres in and around locations called Gornji Mrkovici and Donji Mrkovici.
1684. C9 mentions "ground and stone".
1685. P3276.1 (Zecevic Shelling Report).
1686. Based on comparison of the tables in Zecevic Shelling Report, p. 6 and C8, C9.
1687. C8, C9.
1688. Table on p. 6 of Zecevic Ballistic Report, this value is more favorable to the Defence case than the value of 219 m/sec for V? given by Vilicic.
1689. The Majority took the most favourable figures from table 2 in Vilicic Shelling Report and C5: the loss of speed in flight was taken at minimum level, while the increase of speed caused by the difference of altitude was taken at a level, consistent with firing at an 0+3 charge, at a difference of altitude of 500 meters, both options resulting in a possibly higher speed of impact when firing at this lower charge.
1690. The velocity at firing at a 0+2 charge is approximately 40m/sec lower compared to firing at a 0+3 charge which velocity could not generate the velocity at impact needed to explain the embedment of the tailfin in the ground. But even if fired at a 0+2 level the shell would have been fired at a distance of 2577 m, which would still be approximately at the SRK-held confrontation line."
"516. According to witnesses who belonged to the latter army, SRK soldiers in the area did not fire at civilians,1783 but the Majority notes that evidence from other witnesses from a wide variety of backgrounds, including a senior UN representative in Sarajevo and residents of the city, indicates that civilians in ABiH-controlled territory in the vicinity of Spicasta Stijena regularly experienced being shot at.1784 Based on this last evidence, the unobstructed line of sight to Spicasta Stijena as well as the shooting which was directed at the car transporting Witness E to hospital and which came from the direction of this ridge, the Majority is satisfied that the bullet which injured Witness E was fired from the area of Spicasta Stijena. The Majority accepts in particular that since Witness E was kneeling and facing the ridge while playing with flowers, her posture would have caused her back to arch slightly, so that the bullet fired from Spicasta Stijena entered the upper part of her back before exiting through a lower region of her body."
"1783. Nikolic, T. 16002-3, 16049 and 16091-2; DP53, T. 16184; DP34, T. 17892; Knezevic, T. 18962-3.
1784. Thomas, T. 9325-6; ?ehbajraktarevic, T. 1792; Witness AF, T. 5485-6, 5490 and 5499; Jusovic, T. 4147-8 and Ocuz, T. 4176-7."
"535. Both parents believed that the bullet that had injured their daughter had been fired from a ridge known as Baba Stijena, because that location was visible from their house and was controlled by the SRK.1895 Two photographs and a video taken from the front door of the Pitas house show this entrance to be completely walled in by neighbouring houses and structures such as fences, offering only a narrow line of sight in the direction of Baba Stijena.1896 [ ] Hinchliffe measured the distance from Anisa Pitas house to Baba Stijena to be 895 metres1898 and maps tendered by the Defence in relation to this incident indicate that distance to be on the order of 900 metres.1899 The Trial Chamber also notes that the Defence argued that no medical documents were tendered which would "provide information about the position of entry-and-exit wound on the leg of Anisa Pita, or which would provide the possibility to determine the direction of wound canal, including the angle and the direction from where the bullet came from."1900 Nonetheless, based on the approximate distance of 900 metres and the existence of a line of sight from the Pitas front entrance only in the direction of Baba Stijena, the Majority is satisfied beyond reasonable doubt that Anisa Pita was injured by a shot fired from the area of that ridge."
"1895. Ekrem Pita, T. 3990-1 and 4001; Fatima Pita, T. 5879 and 5899-5900; P3280P (video of the location of scheduled incident number 2). Fatima Pita had also seen firing, mostly in the form of shelling, originating from the area of Baba Stijena at night when she left her cellar to go to the bathroom on the ground floor of her house, Fatima Pita, T. 5918 and 5925.
1896. P3266 (photograph taken from the location of scheduled incident number 2); P3279P (360 degree photograph of location of scheduled incident number 2); P3280P (video taken from the location scheduled incident number 2). A picture taken from the entrance to the Pitas house shows that a small tree lies in the direction of Baba Stijena, partially blocking the line of sight. P3267 (Photograph taken from entrance to the Pitas house). Ekrem Pita explained though that this tree was planted after the incident, Ekrem Pita, T. 3992.
1897. P3704 (Map of Sarajevo); Van Lynden, T. 2103; D1925 (Report by Defence military expert Radovan Radinovic).
1898. Hinchliffe, T. 12946. Ekrem Pita thought that the distance from his house to Baba Stijena was somewhere between 350 and 1,200 metres as the crow flies, but was unsure, Ekrem Pita, T. 3991 and 4003. Fatima Pita for her part estimated that distance to be between 200 and 300 metres, Fatima Pita, T. 5879.
1899. The Pitas house is separated from Baba Stijena by 5 centimetres on D49 (Map marked by Ekrem Pita). Although no scale is explicitly indicated on this map, the gridding appearing thereon would suggest that a measurement of 5.5 centimetres corresponds to 1,000 metres in actual distance D49 (Map marked by Ekrem Pita). Map D49 thus appears to indicate that the actual distance between the Pitas house and Baba Stijena is approximately (1,000/5.5) x 5 = 909 metres, Ekrem Pita, T. 3991 and 4003.
1900. Defence Final Trial Brief, para. 72. See also Acquittal Motion, para. 32."
"554. The Defence argues that it is not possible to determine the source of fire1971 because no on-site investigations were carried out to determine "the angle of descent in which the projectile, or part of the projectile, entered the body of Vildana Kapur".1972 The Trial Chamber does not consider the absence of on-site investigations or technical data concerning the point of entry of a bullet into the body critical to a determination of the source of fire. Sahic testified that she could see the SRK front line from Stara Cesta Street and that often the Stara Cesta Street area was targeted.1973 That front line was in the area north of Stara Cesta Street called Poljine, at a distance of approximately 300-400 metres from the spot where Vildana Kapur was shot.1974 Periodically, flashes of gunfire would be seen coming from Poljine.1975 Sahic further testified that on the day of the shooting, while she and her girlfriends were walking on Stara Cesta Street, the machine-gun flashes were visible in front of them on the SRK side of confrontation lines.1976 On the 360 degree photograph of the area where the shooting occurred, she pointed out a group of white houses beneath a rocky ridge with a dome on it where the shots had come from.1977 [ ] The Trial Chamber has no reason not to believe that Sahic was in a position to determine where the bullets striking the ground around her and her girlfriends came from. The Trial Chamber is satisfied beyond reasonable doubt that the bullet which wounded Vildana Kapur was fired from SRK-held territory."
"1971. Defence Final Trial Brief, para. 156.
1972. Id.
1973. [ahic, T. 2595.
1974. D153, D1793.
1975. Sahic, T. 2595.
1976. Sahic, T. 2595.
1977. Sahic, T. 2624."
P.17.2. Evidence of military presence in a particular area from which the attack was directed.
A.Legal source/authority and evidence:
Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, para. 294-295, 354, 511-512, 528, 530 :
"294. During trial, a considerable amount of evidence was tendered with regard to that group of buildings in Nedarici known as the "Institute for the Blind", allegedly a major source of fire in SRK-held territory against civilians of the surrounding areas. Witnesses marked the confrontation line on a map in court as going south along Lukavicka Cesta street from the intersection where the Institute for the Blind is located.807
295. [ ] With reference to the previous day, an"UNMO BH Command" report dated 13 July 1994 stated that the commander of 1st Battalion of the SRK Ilidza Brigade admitted that sniping did originate from Bravo PAPA 859578 ("House for the Blind People"), and "promised that there would be no more sniping from that place."812"
"807. Fajko Kadric, T. 3789-90; P3108 (map of the area); Faruk Kadric, T. 3742-3, showing the confrontation lines on D47, map of the area; however, the witness testified that he couldnt actually see the confrontation lines. All the buildings in front of the "blind Institute and the institute for children were destroyed", as those "below the institute for blind children, the Branka Bujica Street" (area marked on the map as Oslobodjenje-Studenski Dom, Zavod za Slijepe, Dom Penzionera). See also Kucanin, T. 4542, P3644.MK1 (map marked by witness). Faruk Kadric traced another confrontation line along Aleja Branca Bujica (now Aleja Bosne Srebrene), from Ante Babica street up the "Home for the Blind Children", D47 (map of the area marked by witness); Faruk Kadric, T. 3742-3. Witness DP4 marked Aleja Branca Bujica as SRK territory under constant fire from the ABiH; Witness DP4, T. 14137. [ ]
812. P2759 (UNMO report), page 4, para. 24; Witness DP17, T. 16856-61."
"354. The evidence remains uncontradicted that the area of the Orthodox Church from where the fire came from was within SRK-controlled territory.1129 The Trial Chamber is satisfied beyond reasonable doubt that the Orthodox Church area, Dobrinja IV, was controlled by SRK forces."
"1129. As mentioned above, the confrontation line at the eastern part of Dobrinja were along a street separating Dobrinja I and IV from Dobrinja II and III B and the buildings of Dobrinja IV and the Orthodox Church were placed within SRK-held territory, Dzevlan, T. 3516; Karavelic, T. 11816, P3728 (electronic map marked by Vahid Karavelic); P3732 (map marked by Ismet Hadzic); DP9, T. 14459, 14464, 14496; D1770 (map marked by witness); D1771 (electronic map marked by DP9)."
"511. The Trial Chamber heard uncontested testimonies to the effect that Spicasta Stijena was under the control of the SRK during the conflict. Witness DP53 and Vaso Nikolic, both SRK soldiers,1751 testified that they were sometimes posted in the immediate vicinity of Spicasta Stijena.1752 They explained that SRK troops manned trenches and an observation post there, from which soldiers could peer into certain sections of Sedrenik,1753 while the closest ABiH frontline lay approximately 50 metres below the ridgeline.1754 Witness DP20, also an SRK soldier,1755 occasionally went to this area1756 and confirmed that the SRK had deployed troops at Spicasta Stijena.1757 There was ongoing fighting between the ABiH and the SRK in this area1758 and in April 1993 for example, the ABiH captured an SRK trench on the ridgeline.1759 The SRK recaptured that trench a few days thereafter however1760 and overall the confrontation lines in the area did not change throughout the conflict except in limited instances.1761
512. Witnesses who did not belong to the SRK corroborated this evidence. Major Francis Thomas, a representative of the United Nations,1762 recalled visiting trenches belonging to the SRK near Spicasta Stijena.1763 Witness E, a resident of Sedrenik,1764 concluded that the SRK controlled the ridgeline based on the shouts and expletives which she could hear coming from there.1765 Nazija Ocuz, another resident of Sedrenik,1766 testified that she too believed that the SRK controlled Spicasta Stijena because she had seen two SRK soldiers arguing there during the conflict.1767"
"1751. Witness DP53, T. 16114-5; Nikolic, T. 15962.
1752. Witness DP53, T. 16165, 16169, 16177-8; Nikolic, T. 15961-2 and 15981.
1753. Witness DP53, T. 16170 and 16178; Nikolic, T. 15981.
1754. Witness DP53, T. 16153; Nikolic, T. 15982.
1755. Witness DP20, T. 15517.
1756. Witness DP20, T. 15777.
1757. Witness DP20, T. 15770-1.
1758. Witness DP53, T. 16144; Nikolic, T. 15975.
1759. Witness DP53, T. 16152-3; Nikolic, T. 15980 and 16005.
1760. Witness DP53, T. 16155.
1761. Witness DP53, T. 16124. One of the consequences of this ongoing fighting was that the trees on the ridgeline were damaged and felled as the conflict wore on, Witness DP53, T. 16194-5.
1762. Thomas, T. 9255.
1763. Thomas, T. 9325.
1764. Witness E, T. 4033.
1765. Witness E, T. 4067 and 4072-3.
1766. Ocuz, T. 4164.
1767. Ocuz, T. 4166 and 4188. "
"528. Maps marked by soldiers of both the SRK and the ABiH indicate that the two armies faced each other along a confrontation line located in the south-eastern quadrant of Sarajevo, with the ABiH controlling the northern base of Mount Trebevic.1842 Testimonies heard by the Trial Chamber corroborated this evidence. DP1, who provided humanitarian relief for the Serb population living in Sarajevo during the conflict,1843 explained that one of his acquaintances had dug trenches at the foot of Mount Trebevic for the ABiH.1844 Akif Mukanovic, a soldier of the ABiH deployed in that area,1845 confirmed the existence of such trenches.1846"
1842. D1778 (Map marked by Witness DP11); D1809 (Map marked by Witness DP16); P3728 (Map related to scheduled sniping incident number 11 marked by Vahid Karavelic).
1843. Witness DP1, T. 13252-3.
1844. Witness DP1, T. 13342 and 13346.
1845. Mukanovic, T. 3097.
1846. Mukanovic, T. 3097. 3099.
"530. In particular, Carl Harding, a UNMO serving in Sarajevo at the time Anisa Pita was shot,1862 explained that, except for one instance when the ABiH occupied a part of this road for a "short while"1863 before retreating,1864 the road leading to Pale was controlled by the SRK1865 and that the position of the confrontation lines in this area was "very static because the ground was very difficult [and] is very, very steep and closely wooded [so that] the road that went to Pale was a significant boundary for both sides."1866 The Trial Chamber is satisfied that this and the other evidence from a military expert for the Defence, an international journalist and a senior United Nations representative establish beyond reasonable doubt that the SRK operated from the general area of Baba Stijena."
1862. Harding served as a UNMO in Sarajevo from July 1992 to January 1993. Harding, T. 4311.
1863. Harding, T. 4459-60. Harding did not indicate when this attack took place.
1864. Harding, T. 4460. Witness DP11 confirmed that the ABiH frequently attacked this road. Witness DP11, T. 15064.
1865. Harding, T. 4462.
