CILRAP » Case Matrix Network » CMN Knowledge Hub » Means of Proof Digest » Art. 8 War crimes » Art. 8(2)(b) War crimes » Art. 8(2)(b)(ii) Attacking civilian objects » 5. [Particular mental element for Element 4]The perpetrator intended such civilian objects to be the object of the attack.

Element:

5. [Particular mental element for Element 4]The perpetrator intended such civilian objects to be the object of the attack.

P.12. Evidence with regard to ability to target (precision).

P.12.1. Evidence of the distance between the target and the perpetrator.

A. Legal source/authority and evidence:

Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, paras. 320-321:

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

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

"934. Defence Final Trial Brief, para. 405.

935. T. 13898-9.

936. Omerovic, T. 3844. She later confirmed that the soldiers 뱓old us to hurry up because a few moments before sniper fire had been opened? Omerovic, T. 3881.

937. The witness indicated that she had seen soldiers in her building and her sister뭩 apartment block earlier in 1994, but also said that she had never noticed soldiers on the street where the incident occurred. To her knowledge, the soldiers who assisted them were not quartered in that building, Omerovic, T. 3882, 3891.

938. Hinchliffe, T. 12994.

939. The Indictment alleges that on 17 July 1994, 밨asid Dzonko, a man aged 67 years, was shot and wounded in his back while sitting watching television in his apartment at Milanka Vitomira Street, presently Senada Mandica-Dende Street 5, in Vojnicko Polje, in the west end of Sarajevo? Schedule 1 to the Indictment."

B. Evidentiary comment:

While this case relates to targeting a civilian, instead of a civilian object, clear view is still indicative of being able to distinguish the target.

P.12.2. Evidence of the existence of a clear line of sight

A. Legal source/authority and evidence:

Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, para. 288:

"288 [] Witness DP16 claimed that the site of the incident was not visible from SRK positions,⁷⁸⁷ however the visual evidence presented to the Trial Chamber demonstrates that a clear line of sight existed.⁷⁸⁸"

787. He testified that, because the site of the shooting was at more than 1000 metres from SRK lines and due to "the configuration of the ground and the separation line in that area", this site was not visible from SRK positions, Witness DP16, T. 16577.

788. P2792 (set of photographs taken by the police); P3279W (360-degree photograph); P3280W (video of location of incident); P3269 (set of photographs pre-marked by witness AH).

[B.Evidentiary comment:]

P.12.3. Evidence of weather conditions facilitating good visibility

A. Legal source/authority and evidence:

Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, paras. 533, 542:

"533. The fog had lifted by the time Anisa Pita reached her house.¹⁸⁸⁴"

"1884. Fatima Pita, T. 5892."

"542. Although Bajram Sopi stated that the victim had been targeted twice, neither he nor Nura Barjaktarevic described the weather conditions at the time of the incident.¹⁹²¹ Whether the visibility would have permitted the deliberate targeting of Sacir Bosnic from a distance¹⁹²² cannot therefore be determined."

"1921. Bajraktarevic only indicated that the incident had occurred during summertime, Bajraktarevic, T. 5578.

1922. Hinchliffe measured the distance from the location of the incident to Baba Stijena to be 460 metres, Hinchliffe, T. 12982."

B. Evidentiary comment:

While this case relates to targeting a civilian, instead of a civilian object, clear view is still indicative of being able to distinguish the target.

P.12.4. Evidence of weapon or equipment that facilitates accuracy

A. Legal source/authority and evidence:

Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, para. 236:

"236. Their equipment consisted of "very long-barrelled rifles" with telescopic sights, "some kind of binoculars with a rubber eyepiece on it."⁵¹⁹ "They had a separate telescope which was not mounted on the rifle. It was much broader, much wider, than the one on a rifle, and they were able to see the target better using this device."⁵²⁰ They also had infrared sights.⁵²¹"

"519. Witness D, T. 1928-9. He identified one of their weapons as an M76 using P3648 (manual of weapons). T. 1936.

520. Witness D, T. 1934.

521. Id."

B. Evidentiary comment:

While this case relates to targeting a civilian, instead of a civilian object, clear view is still indicative of being able to distinguish the target.

P.12.5. Evidence of weaponry used.

A. Legal source/authority and evidence:

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005,para. 67:

"67. Wire-guided missiles were used by the JNA. Based on his view of the damage to the Old Town on 13 November 1991, Paul Davies concluded that the firing came from the south of Dubrovnik.¹⁷³ This was the side from which he had witnessed missiles being fired over the water towards the Old Town.¹⁷⁴ Captain Nesic, whose battalion was stationed at Zarkovica,¹⁷⁵ which is only approximately 2300 metres to the south of the Old Town, confirmed that the Old Town was shelled between 10 and at least 12 November 1991 by wire-guided "Maljutkas" missiles or rockets. It was his evidence that his unit was targeting Croatian firing positions over this period,¹⁷⁶ although there is clear reason for reservation about this, as there is with other aspects of his evidence as discussed later. According to Captain Nesic, Croatian forces were firing at the battalion in Zarkovica from the Old Town; he said Croatian forces were firing mortars from a machine gun post in the harbour and from the Pile gate.¹⁷⁷"

"173. Paul Davies, T 607.

174. Paul Davies, T 593 ; T 600 ; T 3565-3566.

175. Captain Nesic, T 8158.

176. Captain Nesic, T 8203. He testified that the quantity of ammunition used during this period and the objectives targeted were topics he discussed with his battalion commander.

177. Captain Nesic, T 8157-8158. Exhibit D19 is a map indicating the Croatian fire points as marked by Captain Nesic."

Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, footnote. 101:

"[] 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. []"

Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 512:

"512. The Trial Chamber inferred from the arms used that the perpetrators of the attack had wanted to affect Muslim civilians. The "baby-bombs" are indeed "home-made mortars"¹¹²⁸ which are difficult to guide accurately. Since their trajectory is "irregular" and non-linear¹¹²⁹, they are likely to hit non-military targets. In this case, these blind weapons were sent onto Stari Vitez where they killed and injured many Muslim civilians¹¹³⁰. They also resulted in substantial material civilian damage."¹¹³¹.

"1128. Defence Brief, p. 301.

1129. Witness Djidic, PT of 29 July 1997, pp. 1242-1243.

1130. P758 to 763.

1131. Witness Djidic, PT of 29 July 1997, pp. 1238-1239."

[B.Evidentiary comment:]

P.13. Evidence inferred from indiscriminate targeting.

A. Legal source/authority and evidence:

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 287:

"287. 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."

[B.Evidentiary comment:]

P.14. 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, paras. 279, 288-289:

"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 distance⁸⁹²and 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."

288. The Chamber has found that the Old Town was extensively targeted by JNA artillery and other weapons on 6 December 1991⁹²⁸ and that no military firing points or other objectives, real or believed, in the Old Town were targeted by the JNA.⁹²⁹ Hence, in the Chambers finding, the intent of the perpetrators was to target civilians and civilian objects in the Old Town. The Chamber has, in addition, found that a relatively few military objectives (actual or believed) in the wider city of Dubrovnik, but outside the Old Town, were targeted by JNA forces on 6 December 1991. These were, in most cases, widely separated and in positions distant from the Old Town. Shelling targeted at the Croatian military positions in the wider Dubrovnik, including those closer to the Old Town, and whether actual or believed positions, would not cause damage to the Old Town, for reasons given in this decision. That is so for all JNA weapons in use on 6 December 1991, including mortars. In addition to this, however, the Chamber has found there was also extensive targeting of non -military objectives outside the Old Town in the wider city of Dubrovnik.

289. As found elsewhere in this decision, the deliberate JNA shelling of the Old Town on 6 December 1991 has been proved to have resulted in the death of two civilians and caused injuries to civilians.⁹³⁰ There was also extensive damage to civilian objects.⁹³¹ Accordingly, and leaving aside for the present the issue of the Accuseds criminal responsibility, the Chamber finds that the elements of the offence of attacks on a civilian population and civilian objects have been established.

928. See supra, para 214.
929. See supra, paras 193-194.
930. See supra, paras 250; 259; 270; 276.
931. See infra, paras 326-327.

P.15. 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:

"892. Exhibit C1/2.

893. See supra, paras 193- 194; 211."

P.16. Evidence of the extensive targeting of non-military objects in and around the attacked area concerned.

A. Legal source/authority and evidence:

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 288:

"288. The Chamber has found that the Old Town was extensively targeted by JNA artillery and other weapons on 6 December 1991⁹²⁸ and that no military firing points or other objectives, real or believed, in the Old Town were targeted by the JNA.⁹²⁹Hence, in the Chambers finding, the intent of the perpetrators was to target civilians and civilian objects in the Old Town. The Chamber has, in addition, found that a relatively few military objectives (actual or believed) in the wider city of Dubrovnik, but outside the Old Town, were targeted by JNA forces on 6 December 1991. These were, in most cases, widely separated and in positions distant from the Old Town. Shelling targeted at the Croatian military positions in the wider Dubrovnik, including those closer to the Old Town, and whether actual or believed positions, would not cause damage to the Old Town, for reasons given in this decision. That is so for all JNA weapons in use on 6 December 1991, including mortars. In addition to this, however, the Chamber has found there was also extensive targeting of non -military objectives outside the Old Town in the wider city of Dubrovnik."

"928. See supra, para 214.

929. See supra, paras 193-194."