Table of contents:
4.1.1. Evidence of the civilian character of the population or individuals
P.17. Evidence of the character of the population being of purely civilian nature.
P.18. Evidence of the character of the population being of predominantly civilian nature.
P.20. Evidence showing that the attacked area was a living town.
P.20.1. Evidence of the number of the resident population of the attacked area.
P.20.3. Evidence showing that the attacked area being a living town was a renowned state of affairs.
4.1.2. Evidence of the civilians not taking direct part in hostilities
P.21. Evidence of the absence of civilian(s) abusing rights (i.e. taking up arms).
4.2. Distinction between civilians and military objects
4.2.1. Evidence of the non-existance of military objects in the attacked area
P.23. Evidence of the non-existance of military objects in the attacked area.
P.25. Evidence of the clearly visible boundaries of the attacked area.
P.26. Evidence of the demarcation etc being plain to see at a distance.
P.27. Evidence of the demarcation etc being obvious to the perpetrator at the time of the attack.
Element:
A.Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 282:
"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 As regards the notion of civilians, the Chamber notes that members of the civilian population are people who are not taking any active part in the hostilities, including members of the armed forces who laid down their arms and those persons placed hors de combat by sickness, wounds, detention or any other cause.904 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".905 Further, Article 50 (1) of Additional Protocol I provides for the assumption that in case of doubt whether a person is a civilian, that person shall be considered to be a civilian.906 The Chamber reiterates that "civilian property covers any property that could not be legitimately considered a military objective".907"
"903. ICRC Commentary on the Additional Protocols, p 603. See also Kordic Appeals Judgement, para 47.
904. Akayesu Trial Judgement, para 582; Blaskic Trial Judgement, para 214.
905. Tadic Trial Judgement, para 638; Blaskic Trial Judgement, para 214.
906. Kordic Appeals Judgement, paras 48-51.
907. Blaskic Trial Judgement, para 180. See also Kordic Appeals Judgement, para 53."
4.1.1. Evidence of the civilian character of the population or individuals
P.18. Evidence of the character of the population being of purely civilian nature.
The Prosecutor v. Momcilo Perisic, Case No. IT-04-81, Judgement (TC), 6 September 2011, para. 338, 365, 384:
338. Considering that such adjudicated facts have not been rebutted during the trial, the Trial Chamber finds beyond a reasonable doubt that on 22 January 1994 at around noon, three mortar shells exploded in the residential neighbourhood of Alipasino Polje, killing six children, seriously injuring another three children and one adult. The evidence establishes that all the victims of the attack, except for one, were children. The Trial Chamber finds that the only reasonable inference to be drawn from the evidence is that all the victims were civilians not taking part in hostilities at the time the incident occurred. The shells also fell in a civilian area with no military activities in the vicinity.
365. The Trial Chamber also finds that the only reasonable inference to be drawn from the evidence is that all the victims were civilians not taking part in hostilities at the time the incident occurred. The Trial Chamber bases its finding on: (i) the evidence that the flea market was a very densely populated civilian area and there were no military installations or activities around; (ii) the report of the civilian police stating that the victims were "civilians"; and (iii) the statements of eye-witnesses and injured referring to the civilian status of the victims and the fact that the victims were engaged, on the day of the incident, in civilian activities and had civilian clothes.
384. The Trial Chamber finds beyond a reasonable doubt that on 24 May 1995 at about 14:00 hours, a modified air bomb, FAB-250, exploded at Majdanska Street, killing two individuals and injuring six others. The Trial Chamber also finds that the only reasonable inference to be drawn from the evidence is that all the victims were civilians not taking part in hostilities at the time the incident occurred. The bomb fell inside the area of the transformer building, which is a civilian object, with no military personnel or military activity inside or in the proximity of that building. Furthermore, the victims were employees at the transformer building and/or engaged in civilian activities.
P.19. Evidence of the character of the population being of predominantly civilian nature.
A.Legal source/authority and evidence:
The Prosecutor v. Momcilo Perisic, Case No. IT-04-81, Judgement (TC), 6 September 2011, para. 365:
365. The Trial Chamber also finds that the only reasonable inference to be drawn from the evidence is that all the victims were civilians not taking part in hostilities at the time the incident occurred. The Trial Chamber bases its finding on: (i) the evidence that the flea market was a very densely populated civilian area and there were no military installations or activities around; (ii) the report of the civilian police stating that the victims were "civilians"; and (iii) the statements of eye-witnesses and injured referring to the civilian status of the victims and the fact that the victims were engaged, on the day of the incident, in civilian activities and had civilian clothes.
The Prosecutor v. Vlastimir Dordević, Case No. IT-05-87/1, Judgement (TC), 23 February 2011, para. 620, 622, 1721-22:
620. There is evidence which the Chamber accepts that on or around 28 March 1999, Zoje Osmani (Osmana) (67 years old) and Ajmone Citaku (81 years old), two of the women in the field in Izbica/Izbic, were burnt to death when the tractors they were sitting on were set on fire by members of the Serbian forces. There is also evidence that another woman, Zade Dragaj (71 years old), was killed by Serbian forces in the field on the same day. This evidence is corroborated by Liri Loshis evidence, that on 31 March 1999, the bodies of the three women were found and buried in Izbica/Izbic and that burnt tractors were found in the field. Forensic evidence [ ], established that the remains of some of the people buried in Izbica/Izbic were later exhumed from Petrovo Selo PJP Centre, in Serbia. In 2001, the bodies of Zoje Osmani (Osmana) and Zade Dragaj were exhumed from Petrovo Selo PJP Centre and examined by Serbian forensic experts. The autopsy reports concluded that no cause of death could be ascertained for Zoje Osmani (Osmana). However, it was reported that her bones had been exposed to high temperature. With respect to Zade Dragaj, the autopsy reports revealed that she died of gunshot wounds.The body of Ajmone Citaku was never found by the forensic experts. The overall evidence satisfies the Chamber that Zoje Osmani, Ajmone Citaku and Zade Dragaj were killed by Serbian forces on 28 March 1999 in Izbica/Izbic. The Chamber is satisfied that the three victims were unarmed and that they were not taking active part in the hostilities at the time they were killed. The Chamber is further satisfied that the victims were Kosovo Albanian.
622. Meanwhile the other group of about 70 men was escorted towards a wood to the east by members of the Serbian forces. Before the men had reached the wood, they were told to turn around and they were shot from behind. One of the men, Hajriz Dragaj (Draga), was hit by a bullet and fell on top of Mustafa Dragaj. Bodies covered with blood fell on top of Sadik Januzi. After the initial shooting, a member of the Serbian forces looked for survivors and seven or eight more shots were fired. One member of the Serbian forces then said: "Lets go, our work is over". Mustafa Dragaj identified the following men from this group as having died in the shooting: Bajram Bajra, Ilaz Bajra, Sali Dervishi, Ilaz Dervishi, Ilaz Devishi, Ali Draga, Cen Draga, Hajriz Draga, Ismet Draga, Murat Draga (Dragaj), Rrustem (Rustem) Draga, Zade (Zada) Dragaj, Fatmir Osmani, Ismajl Qelaj, Rexhep Qelaj, Metush Qelaj, Idriz Shala, Sali (Salih) Shala, Halim Shala, Deshevci Pajazit, Kujtim Shala, Kajtaz Islami, Hetem Osmanaj. Two men, Hajriz Dragaj (Draga) and Sadik Sherifi died later that day to the injuries they sustained during the shooting. The Chamber is satisfied that, at the time of their killing, these men were unarmed, in the custody of Serbian forces and, therefore, they were not taking active part in the hostilities. The Chamber is satisfied that these victims were Kosovo Albanians.
1721. The evidence established that on 26 March 1999, in Suva Reka/Suharek?, the following members of the Berisha family were shot by local police in the vicinity of the Berisha family compound on the street called "Restanski Put": Bujar, Sedat, Nexhat, Nexhmedin, Faton and Fatime (wife of Ismet and mother of Faton). On the basis of the forensic and eyewitness evidence the Chamber finds that all six of these people died as a result of being shot by MUP forces. None of these six individuals were armed, nor were they taking an active part in the hostilities, at the time they were killed. [ ] The Chamber is also satisfied that two elderly Berisha family members, left unnamed by the evidence, were injured when shot by MUP forces while running away from the site of these killings and then later were killed, when shot again, by MUP forces. They were unarmed. Notwithstanding the absence of forensic evidence, the Chamber is satisfied that the only inference open on the evidence is that these two elderly Berisha family members were killed when shot by MUP forces.
1722. [Among the] 32 Berisha family members, 18 were exhumed from a mass grave at the Batajnica SAJ Centre near Belgrade, some two and a half years later, and identified. The remains of the other 14 persons have not yet been located. Notwithstanding the absence of detailed forensic evidence for the remaining individuals, the Chamber finds on the totality of the evidence that all of these 32 Berisha family members died as a result of being shot by local MUP forces in the pizzeria, or as a result of the explosive force of one or more grenades which were thrown by local MUP forces into the pizzeria following the shootings. These Berisha family members were unarmed civilians, most were women and children, and were not taking any part in the hostilities at the time they were killed. Given that the victims, including women and children, had been confined in the pizzeria and were deliberately shot and exposed to grenade explosions in a confined area, the Chamber is satisfied that the perpetrators had the requisite intent to murder these 32 Berisha family members.
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 282:
"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 As regards the notion of civilians, the Chamber notes that members of the civilian population are people who are not taking any active part in the hostilities, including members of the armed forces who laid down their arms and those persons placed hors de combat by sickness, wounds, detention or any other cause.904 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".905 Further, Article 50 (1) of Additional Protocol I provides for the assumption that in case of doubt whether a person is a civilian, that person shall be considered to be a civilian.906 The Chamber reiterates that "civilian property covers any property that could not be legitimately considered a military objective".907"
"903. ICRC Commentary on the Additional Protocols, p 603. See also Kordic Appeals Judgement, para 47.
904. Akayesu Trial Judgement, para 582; Blaskic Trial Judgement, para 214.
905. Tadic Trial Judgement, para 638; Blaskic Trial Judgement, para 214.
906. Kordic Appeals Judgement, paras 48-51.
907. Blaskic Trial Judgement, para 180. See also Kordic Appeals Judgement, para 53."
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 It is possible that there may have been individuals in the Old Town on 6 December 1991 who were connected with the Croatian defending forces, however, any such persons did not fire on JNA forces or undertake any overt military activity. Their presence could not change the character of the population. It was properly characterised as a civilian population, and the objects located there were civilian objects. As regards the Defence submission concerning alleged military activities of the Crisis Staff, the headquarters of which was located in the Old Town,911 the Chamber notes that no persuasive evidence has been supplied to the effect that the Crisis Staff was conducting military operations from the Old Town.912 On the contrary, Delo Jusic testified that the Crisis Staff did not deal with issues of defence.913 Mato Valjalo stated that its members did not fight and did not wear uniforms.914 It was his testimony that the headquarters of the Territorial Defence was in Lapad.915 There is nothing in the evidence to suggest that the building of the Crisis Staff made "an effective contribution to military action" or that its destruction would offer "a definite military advantage ".916 Accordingly, the Chamber finds on the evidence in this case that the presence of the Crisis Staff in a building located in the Old Town did not render the building a legitimate military objective. The Chamber would also note that the building in question was not proved to have been damaged917 during the shelling so that this Defence submission apparently lacks factual foundation."
909. See supra, paras 99-119 ; 121-145.
910. See supra, paras 193- 194.
911. Defence Final Brief, paras 204 -206.
912. Prosecution Final Brief, paras 232-233.
913. Delo Jusic, T 3206-3207.
914. Mato Valjalo, T 2091.
915. Mato Valjalo, T 1997.
916. Article 52 para 2 of Additional Protocol I, see supra, footnote 885.
917. The headquarters of the Crisis Staff was located at the Rectors palace, Delo Jusic, T 3207; Dordje Ciganovic, T 2903. Slavko Grubisic testified: "At the rector's palace, as far as I was able to see from the outside, because a shell had landed between the cathedral and the rector's palace, from the north, or rather, the south side, from the cathedral, on those beautiful stones, there are still marks made by shrapnel. It's pock-marked by shrapnel still." T 1043. However, this evidence is not indicative of proving that the damage occurred as result of this shell. Moreover, P63/6, Annex 1 shows six projectile impacts marked as "4" and "6" in the northern and eastern area of the outer walls of the Rectors Palace as being damaged in October/November.
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 It is possible that there may have been individuals in the Old Town on 6 December 1991 who were connected with the Croatian defending forces, however, any such persons did not fire on JNA forces or undertake any overt military activity. Their presence could not change the character of the population. It was properly characterised as a civilian population, and the objects located there were civilian objects. As regards the Defence submission concerning alleged military activities of the Crisis Staff, the headquarters of which was located in the Old Town,911 the Chamber notes that no persuasive evidence has been supplied to the effect that the Crisis Staff was conducting military operations from the Old Town.912 On the contrary, Delo Jusic testified that the Crisis Staff did not deal with issues of defence.913 Mato Valjalo stated that its members did not fight and did not wear uniforms.914 It was his testimony that the headquarters of the Territorial Defence was in Lapad.915 There is nothing in the evidence to suggest that the building of the Crisis Staff made "an effective contribution to military action" or that its destruction would offer "a definite military advantage ".916 Accordingly, the Chamber finds on the evidence in this case that the presence of the Crisis Staff in a building located in the Old Town did not render the building a legitimate military objective. The Chamber would also note that the building in question was not proved to have been damaged917 during the shelling so that this Defence submission apparently lacks factual foundation."
909. See supra, paras 99-119 ; 121-145.
910. See supra, paras 193- 194.
911. Defence Final Brief, paras 204 -206.
912. Prosecution Final Brief, paras 232-233.
913. Delo Jusic, T 3206-3207.
914. Mato Valjalo, T 2091.
915. Mato Valjalo, T 1997.
916. Article 52 para 2 of Additional Protocol I, see supra, footnote 885.
917. The headquarters of the Crisis Staff was located at the Rectors palace, Delo Jusic, T 3207; Dordje Ciganovic, T 2903. Slavko Grubisic testified: "At the rector's palace, as far as I was able to see from the outside, because a shell had landed between the cathedral and the rector's palace, from the north, or rather, the south side, from the cathedral, on those beautiful stones, there are still marks made by shrapnel. It's pock-marked by shrapnel still." T 1043. However, this evidence is not indicative of proving that the damage occurred as result of this shell. Moreover, P63/6, Annex 1 shows six projectile impacts marked as "4" and "6" in the northern and eastern area of the outer walls of the Rectors Palace as being damaged in October/November.
P.21. Evidence showing that the attacked area was a living town.
P.21.1. Evidence of the number of the resident population of the attacked area.
The Prosecutor v. Momcilo Perisic, Case No. IT-04-81, Judgement (TC), 6 September 2011, para 467:
467. The Trial Chamber finds beyond a reasonable doubt that on 28 August 1995 shortly after 11:00 hours, a 120mm mortar shell hit the entrance of the City Market on Mula-Mustafe Baceskije street killing 38 persons and injuring 75 persons. The Trial Chamber also finds that the mortar shell was fired from the VRS-held territory on the slopes of Mt. Trebevic. Finally, no military activities were taking place in the area of the City Market and the persons present at the market were buying, selling or trading goods, in no way engaged in activities that could be perceived as military. In addition, the evidence shows that all the victims, except one, wore civilian clothes. The Trial Chamber therefore finds that the only reasonable inference to be drawn from the evidence is that the great majority of the victims were civilians not taking part in hostilities at the time the crime occurred.
P.21.3. Evidence showing that the attacked area being a living town was a renowned state of affairs.
A.Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 285:
"285. On 6 December 1991, the evidence is unequivocal that the Old Town was, as it still is, a living town. Though a protected World Heritage site, it had a substantial resident population of between 7,000 and 8,000,918 many of whom were also employed in the Old Town, as were very many others who came to the Old Town from the wider Dubrovnik to work.919 The Old Town was also a centre of commercial and local government activity and religious communities lived within its walls. Because of, and under the terms of, the JNA blockade, some women and children had temporarily left the Old Town, but many remained. In addition, families and individuals displaced by the JNA advance on Dubrovnik had found shelter in the Old Town.920 Some people from the wider Dubrovnik had also been able to take up temporary residence in the Old Town during the blockade in the belief that its World Heritage listing would give them protection from military attack.921 The existence of the Old Town as a living town was a renowned state of affairs which had existed for centuries. The residential situation in the wider Dubrovnik was, in many respects quite similar and a renowned state of affairs. The wider Dubrovnik was a substantial residential and commercial centre with a large resident population the numbers of whom had been swelled by refugees who had been displaced from other towns and villages by the JNA advance.922"
"918. Dr John Allcock, T 461-464 ; Exhibit P14.
919. Paul Davies, T 579.
920. Paul Davies, T 574.
921. Paul Davies, T 579.
922. With respect to the fact that the Old Town was a populated civilian town, the Chamber notes that a concert was held on 5 December 1991 to commemorate the 200 year anniversary of Mozarts death, Delo Jusic, T 3067."
4.1.2. Evidence of the civilians not taking direct part in hostilities
A.Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 282:
"282. As regards the notion of civilians, the Chamber notes that members of the civilian population are people who are not taking any active part in the hostilities, including members of the armed forces who laid down their arms and those persons placed hors de combat by sickness, wounds, detention or any other cause.904"
"904. Akayesu Trial Judgement, para 582; Blaskic Trial Judgement, para 214."
Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, paras. 48, 50-51:
"48. The protection from attack afforded to individual civilians by Article 51 of Additional Protocol I is suspended when and for such time as they directly participate in hostilities.85 To take a "direct " part in the hostilities means acts of war which by their nature or purpose are likely to cause actual harm to the personnel or matériel of the enemy armed forces.86 As the Kupreskic Trial Chamber explained:
the protection of civilian and civilian objects provided by modern international law may cease entirely or be reduced or suspended [...] if a group of civilians takes up arms [...] and engages in fighting against the enemy belligerent, they may be legitimately attacked by the enemy belligerent whether or not they meet the requirements laid down in Article 4(A)(2) of the Third Geneva Convention of 1949.87
Combatants and other individuals directly engaged in hostilities are considered to be legitimate military targets.88"
"85. See Article 51 (3) of Additional Protocol I.
86. ICRC Commentary, para. 1944.
87. Kupreskic Trial Judgement, paras 522-3. The Inter-American Commission of Human Rights also provided guidance as to the scope of civilian immunity, in the Tablada case, by stating that: "( )When civilians, such as those who attacked the Tablada base, assume the role of combatants by directly taking part in fighting, whether singly or as a member of a group, they thereby become legitimate military targets. As such, they are subject to direct individualised attack to the same extent as combatants. Thus, by virtue of their hostile acts, the Tablada attackers lost the benefits of the above mentioned precautions in attack and against the effects of indiscriminate or disproportionate attacks pertaining to peaceable civilians. In contrast, these humanitarian law rules continued to apply in full force with respect to those peaceable civilians present or living in the vicinity of the La Tablada base at the time of the hostilities." Juan Carlos Abella v. Argentina, Case 11.137, Report N? 55/97, Inter-Am. C.H.R., OEA/Ser.L/V/II.95 Doc. 7, p. 271, para. 178 (1997).
88. Combatant status implies not only being considered a legitimate military objective, but also being able to kill or wound other combatants or individuals participating in hostilities, and being entitled to special treatment when hors-de-combat, i.e. when surrendered, captured or wounded (See Article 41(2) of Additional Protocol I)."
"50. Furthermore, according to Article 51(3) of Additional Protocol I, civilians are protected against attacks, unless and for the time they take part directly in hostilities. The civilian population comprises all persons who are civilians and the presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.
51. Particular attention has to be paid to the situation of members of a Territorial Defence (TO) and as to whether they are to be considered as combatants at all times during the conflict or only when they directly take part in hostilities, that is, when they participate in acts of war which by nature or purpose are likely to cause actual harm to the personnel and equipment of the enemy's armed forces."
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4, Judgment (TC), 2 September 1998, para. 582:
"582. The Chamber considers that an act must be directed against the civilian population if it is to constitute a crime [ ]. Members of the civilian population are people who are not taking any active part in the hostilities, including members of the armed forces who laid down their arms and those persons placed hors de combat by sickness, wounds, detention or any other cause."
P.22. Evidence of the absence of civilian(s) abusing rights (i.e. taking up arms).
A.Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 284:
"284. Mato Valjalo stated that its members did not fight and did not wear uniforms.914"
"914. Mato Valjalo, T 2091."
Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, paras. 248, 364:
"248. Although Sabri Halili was a member of the ABiH, he was off-duty that day and was not dressed in uniform or carrying weapons.595"
"595. Sabri Halili, T. 2658, 2679-80, 2686, 2706; Milada Halili testified that her husband was a soldier but he didnt have a military uniform. He was not carrying any weapons that day because he was off duty, T. 2740. She said that she worked in "the kitchens of the ABiH" during the conflict. T. 2749-50, 2764."
"364. Although Grabovica was a military conscript employed to transport civilians in a bus of the public transport company, he did not carry weapons and was not dressed in a military uniform.1176 There is no evidence in the Trial Record, which could suggest that the bus transported combatants or was used for a military activity. The bus was visibly a civilian vehicle, which only functioned during cease-fires along a regularly scheduled bus route."
"1176. Grabovica, T. 3692."
4.2. Distinction between civilians and military objects
4.2.1. Evidence of the non-existance of military objects in the attacked area
P.24. Evidence of the non-existance of military objects in the attacked area.
A.Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 279:
"279. In the Chambers view, the facts established in this case make it unnecessary to consider many of the legal and factual issues raised by the submissions of the parties. We would however make the following general observations. The Indictment in this case is confined to an artillery attack on the Old Town which occurred on 6 December 1991. There was also shelling of the wider city of Dubrovnik on that day. The Old Town is a physically distinct part of the wider city. Its geographical location in the wider city, and its clearly visible boundaries as marked by the medieval walls that surround the Old Town, provide an immediate and obvious demarcation of the Old Town from the rest of the city. It is a demarcation which is plain to see at a distance892 and was obvious to the JNA forces on 6 December 1991. The Old Town is also legally distinct from the rest of the wider city because the Old Town, in its entirety including the medieval walls, enjoys a World Heritage listing and the protections and immunities that are consequent on that listing. In the context of this particular case there is a further basis for distinguishing the Old Town from the remainder of the wider city of Dubrovnik. As found by the Chamber in this decision, on 6 December 1991 there were a few Croatian military positions in the wider city of Dubrovnik that were relevant to the JNA attempt to capture Srdj that day, whereas there were none in the Old Town, and it was not believed by the JNA forces responsible for the shelling that there were.893 For all of these quite compelling reasons it is legally and factually appropriate, in the circumstances of this case, to consider the targeting and shelling of the Old Town in isolation, and in distinction from, the targeting and shelling of the remainder of the wider city of Dubrovnik. That is so for all counts."
"892. Exhibit C1/2.
893. See supra, paras 193- 194; 211."
A.Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, paras. 279, 284:
"279. In the Chambers view, the facts established in this case make it unnecessary to consider many of the legal and factual issues raised by the submissions of the parties. We would however make the following general observations. The Indictment in this case is confined to an artillery attack on the Old Town which occurred on 6 December 1991. There was also shelling of the wider city of Dubrovnik on that day. The Old Town is a physically distinct part of the wider city. Its geographical location in the wider city, and its clearly visible boundaries as marked by the medieval walls that surround the Old Town, provide an immediate and obvious demarcation of the Old Town from the rest of the city. It is a demarcation which is plain to see at a distance892 and was obvious to the JNA forces on 6 December 1991. The Old Town is also legally distinct from the rest of the wider city because the Old Town, in its entirety including the medieval walls, enjoys a World Heritage listing and the protections and immunities that are consequent on that listing. In the context of this particular case there is a further basis for distinguishing the Old Town from the remainder of the wider city of Dubrovnik. As found by the Chamber in this decision, on 6 December 1991 there were a few Croatian military positions in the wider city of Dubrovnik that were relevant to the JNA attempt to capture Srdj that day, whereas there were none in the Old Town, and it was not believed by the JNA forces responsible for the shelling that there were.893 For all of these quite compelling reasons it is legally and factually appropriate, in the circumstances of this case, to consider the targeting and shelling of the Old Town in isolation, and in distinction from, the targeting and shelling of the remainder of the wider city of Dubrovnik. That is so for all counts."
"892. Exhibit C1/2.
893. See supra, paras 193- 194; 211."
"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 It is possible that there may have been individuals in the Old Town on 6 December 1991 who were connected with the Croatian defending forces, however, any such persons did not fire on JNA forces or undertake any overt military activity. Their presence could not change the character of the population. It was properly characterised as a civilian population, and the objects located there were civilian objects. As regards the Defence submission concerning alleged military activities of the Crisis Staff, the headquarters of which was located in the Old Town,911 the Chamber notes that no persuasive evidence has been supplied to the effect that the Crisis Staff was conducting military operations from the Old Town.912 On the contrary, Delo Jusic testified that the Crisis Staff did not deal with issues of defence.913 Mato Valjalo stated that its members did not fight and did not wear uniforms.914 It was his testimony that the headquarters of the Territorial Defence was in Lapad.915 There is nothing in the evidence to suggest that the building of the Crisis Staff made "an effective contribution to military action" or that its destruction would offer "a definite military advantage ".916 Accordingly, the Chamber finds on the evidence in this case that the presence of the Crisis Staff in a building located in the Old Town did not render the building a legitimate military objective. The Chamber would also note that the building in question was not proved to have been damaged917 during the shelling so that this Defence submission apparently lacks factual foundation."
909. See supra, paras 99-119 ; 121-145.
910. See supra, paras 193- 194.
911. Defence Final Brief, paras 204 -206.
912. Prosecution Final Brief, paras 232-233.
913. Delo Jusic, T 3206-3207.
914. Mato Valjalo, T 2091.
915. Mato Valjalo, T 1997.
916. Article 52 para 2 of Additional Protocol I, see supra, footnote 885.
917. The headquarters of the Crisis Staff was located at the Rectors palace, Delo Jusic, T 3207; Dordje Ciganovic, T 2903. Slavko Grubisic testified: "At the rector's palace, as far as I was able to see from the outside, because a shell had landed between the cathedral and the rector's palace, from the north, or rather, the south side, from the cathedral, on those beautiful stones, there are still marks made by shrapnel. It's pock-marked by shrapnel still." T 1043. However, this evidence is not indicative of proving that the damage occurred as result of this shell. Moreover, P63/6, Annex 1 shows six projectile impacts marked as "4" and "6" in the northern and eastern area of the outer walls of the Rectors Palace as being damaged in October/November.
A.Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 279:
"279. In the Chambers view, the facts established in this case make it unnecessary to consider many of the legal and factual issues raised by the submissions of the parties. We would however make the following general observations. The Indictment in this case is confined to an artillery attack on the Old Town which occurred on 6 December 1991. There was also shelling of the wider city of Dubrovnik on that day. The Old Town is a physically distinct part of the wider city. Its geographical location in the wider city, and its clearly visible boundaries as marked by the medieval walls that surround the Old Town, provide an immediate and obvious demarcation of the Old Town from the rest of the city. It is a demarcation which is plain to see at a distance892 and was obvious to the JNA forces on 6 December 1991. The Old Town is also legally distinct from the rest of the wider city because the Old Town, in its entirety including the medieval walls, enjoys a World Heritage listing and the protections and immunities that are consequent on that listing. In the context of this particular case there is a further basis for distinguishing the Old Town from the remainder of the wider city of Dubrovnik. As found by the Chamber in this decision, on 6 December 1991 there were a few Croatian military positions in the wider city of Dubrovnik that were relevant to the JNA attempt to capture Srdj that day, whereas there were none in the Old Town, and it was not believed by the JNA forces responsible for the shelling that there were.893 For all of these quite compelling reasons it is legally and factually appropriate, in the circumstances of this case, to consider the targeting and shelling of the Old Town in isolation, and in distinction from, the targeting and shelling of the remainder of the wider city of Dubrovnik. That is so for all counts."
"892. Exhibit C1/2.
893. See supra, paras 193- 194; 211."
P.26. Evidence of the clearly visible boundaries of the attacked area.
P.27. Evidence of the demarcation etc being plain to see at a distance.
P.28. Evidence of the demarcation etc being obvious to the perpetrator at the time of the attack.
A.Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 279:
"279. In the Chambers view, the facts established in this case make it unnecessary to consider many of the legal and factual issues raised by the submissions of the parties. We would however make the following general observations. The Indictment in this case is confined to an artillery attack on the Old Town which occurred on 6 December 1991. There was also shelling of the wider city of Dubrovnik on that day. The Old Town is a physically distinct part of the wider city. Its geographical location in the wider city, and its clearly visible boundaries as marked by the medieval walls that surround the Old Town, provide an immediate and obvious demarcation of the Old Town from the rest of the city. It is a demarcation which is plain to see at a distance892 and was obvious to the JNA forces on 6 December 1991. The Old Town is also legally distinct from the rest of the wider city because the Old Town, in its entirety including the medieval walls, enjoys a World Heritage listing and the protections and immunities that are consequent on that listing. In the context of this particular case there is a further basis for distinguishing the Old Town from the remainder of the wider city of Dubrovnik. As found by the Chamber in this decision, on 6 December 1991 there were a few Croatian military positions in the wider city of Dubrovnik that were relevant to the JNA attempt to capture Srdj that day, whereas there were none in the Old Town, and it was not believed by the JNA forces responsible for the shelling that there were.893 For all of these quite compelling reasons it is legally and factually appropriate, in the circumstances of this case, to consider the targeting and shelling of the Old Town in isolation, and in distinction from, the targeting and shelling of the remainder of the wider city of Dubrovnik. That is so for all counts."
"892. Exhibit C1/2.
893. See supra, paras 193- 194; 211."
A.Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 279:
"279. In the Chambers view, the facts established in this case make it unnecessary to consider many of the legal and factual issues raised by the submissions of the parties. We would however make the following general observations. The Indictment in this case is confined to an artillery attack on the Old Town which occurred on 6 December 1991. There was also shelling of the wider city of Dubrovnik on that day. The Old Town is a physically distinct part of the wider city. Its geographical location in the wider city, and its clearly visible boundaries as marked by the medieval walls that surround the Old Town, provide an immediate and obvious demarcation of the Old Town from the rest of the city. It is a demarcation which is plain to see at a distance892 and was obvious to the JNA forces on 6 December 1991. The Old Town is also legally distinct from the rest of the wider city because the Old Town, in its entirety including the medieval walls, enjoys a World Heritage listing and the protections and immunities that are consequent on that listing. In the context of this particular case there is a further basis for distinguishing the Old Town from the remainder of the wider city of Dubrovnik. As found by the Chamber in this decision, on 6 December 1991 there were a few Croatian military positions in the wider city of Dubrovnik that were relevant to the JNA attempt to capture Srdj that day, whereas there were none in the Old Town, and it was not believed by the JNA forces responsible for the shelling that there were.893 For all of these quite compelling reasons it is legally and factually appropriate, in the circumstances of this case, to consider the targeting and shelling of the Old Town in isolation, and in distinction from, the targeting and shelling of the remainder of the wider city of Dubrovnik. That is so for all counts."
"892. Exhibit C1/2.
893. See supra, paras 193- 194; 211."
