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 » 6.a [Mental element for Element 3] [Conduct of directing an attack:] The perpetrator meant to direct an attack.

Element:

6.a [Mental element for Element 3] [Conduct of directing an attack:] The perpetrator meant to direct an attack.

P.17. Evidence inferred from an utterance, a document, or a deed

P.17.1. Evidence that the perpetrator ordered the attack

A. Legal source/authority and evidence:

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, paras. 159, 162, 167:

"159. As has been mentioned, the Chamber also attaches weight to the significant evidence of a meeting around midday on 6 December 1991 between the Accused and Colm Doyle at the Accuseds headquarters at Trebinje. As recorded later, it is the Chambers finding that at that meeting the Accused told Colm Doyle that he had responded to an attack on his troops in Bosnia and Herzegovina by firing on the city of Dubrovnik.⁵¹⁴ For reasons it explains later, the Chamber finds this to be an admission of the Accused that he ordered the attack on the Srdj feature at Dubrovnik.⁵¹⁵"

"514. Colm Doyle, T 1716.

515. See infra, paras 166 -167."

"162. It is the evidence of Colm Doyle that the Accused, whilst courteous, appeared preoccupied during the meeting.⁵²³ It was said that much was happening that day.⁵²⁴ It is the witnesss evidence that after he and the Accused introduced each other and their missions, through a JNA interpreter, the Accused told him that he was angry because paramilitaries on the territory of Bosnia and Herzegovina had attacked his troops, which he could not tolerate, and that he had responded by firing on the city of Dubrovnik.⁵²⁵ The witness testified that these were the words of the Accused as conveyed to him by an official JNA interpreter,⁵²⁶ and that he was taken by surprise at what he saw as an admission by a senior military officer of an action taken against a city.⁵²⁷ As has already been noted, Colm Doyle had no knowledge of the attack on Dubrovnik before he met the Accused that day.⁵²⁸"

523. Colm Doyle, T 1715-1716.

524. Colm Doyle, T 1714.

525. Colm Doyle, T 1716.

526. Colm Doyle, T 1759-1761.

527. Colm Doyle, T 1716-1717.

528. Colm Doyle, T 1708-1709; 1716 -1717.

"167. While the words of the Accused to Colm Doyle can be interpreted as indicating that he ordered his troops to fire on the greater city of Dubrovnik, in the Chambers view his words are very well capable of being understood as an admission that the attack being made that day by the JNA was on his order. This was, as the Chamber has found, an attack directed at Srdj, but as will be discussed, the order to attack Srdj also contemplated some shelling of the city. This evidence leads the Chamber to conclude that what the Accused was in fact saying to Colm Doyle was that he responded to attacks on his troops in Bosnia and Herzegovina by having his troops attack the obviously advantageous and strategic Croatian "paramilitary" position in Dubrovnik which jeopardised JNA troops in the area, namely Srdj. His reference to the city is also consistent with an awareness that the city was indeed being shelled by his forces during the attack. The Chamber is conscious that this finding as to the meaning of his words is more favourable to the Accused than a more literal understanding. This admission by the Accused of his direct responsibility for the attack that day is also strongly consistent, in the Chambers view, with the military realities of the JNA, pursuant to which it is difficult indeed to conceive that the attack would have been launched at the level of the 9 VPS, without the concurrence of the 2 OG, especially at such a critical point of time because of the negotiations and the wider political activity we have mentioned.⁵⁴³"

"543. See supra, paras 79-81."

[B.Evidentiary comment:]

P.17.2. Evidence of meetings held in planning of or preparation for the attack

A. Legal source/authority and evidence:

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, paras. 85 86, 90 94:

"85. Other material events were occurring on 5 December 1991. Late in the afternoon, a meeting was held at the forward command post of the 9 VPS at Kupari near Zarkovica. The Chamber accepts the evidence that those at the meeting included Warship-Captain Zec who was Chief of Staff to Admiral Jokic, the operational officer of the 9 VPS Captain Kozaric, the assistant commander responsible for moral guidance of the 9 VPS Lieutenant-Colonel Zarkovic, the commander of the 107 OAG Lieutenant-Colonel Stamenov and the temporary commander of the 3/5 mtbr Lieutenant-Colonel Jovanovic. Also present was the commander of the 3/472 mtbr Captain Kovacevic, who provided the assault troops for the attack on Srdj the following morning.²⁴² The 3/472 mtbr had its 120mm mortar battery positioned inland from Dubrovnik in the Uskoplje region.²⁴³ Each of its companies also had four 82mm mortars.²⁴⁴ Those attending the Kupari meeting were all senior 9 VPS staff officers or commanders of 9 VPS units, at that time under the immediate command of Admiral Jokic, and the superior command of the Accused, as the 9 VPS was part of the 2 OG which the Accused commanded.²⁴⁵

86. Lieutenant-Colonel Jovanovic testified that Admiral Jokic himself attended the meeting and that during the meeting Captain Kovacevic outlined problems his troops were experiencing with the Croatian forces occupying Srdj and proposed that his troops should take Srdj in a quick action the next morning.²⁴⁶ This was to be accomplished before an anticipated ceasefire at 1200 hours. In a battle plan which Captain Kovacevic put forward, heavy artillery support was to be provided by the 107 OAG howitzers at Cilipi, as well as the heavy 120mm mortars of the 3/472 mtbr at Uskoplje and of the 3/5 mtbr at Osojnik.²⁴⁷"

"242. Lieutenant-Colonel Jovanovic, T 8079-8080; 8132.

243. Admiral Jokic, T 3863-3864; 3980 ; Exhibit P132.

244. Admiral Jokic, T 3840; 3980.

245. See infra, paras 384- 385."

"90. Much later on 5 December, in the evening, the company commanders of the 3/472 mtbr, were contacted by the duty communications officer at the 3/472 mtbrs command post in Gornji Brgat.²⁵⁶ They were requested to attend a meeting at the command of 91. Captain Jeremic in Ivanica.²⁵⁷ Shortly after everyone had assembled, Captain Kovacevic, the commander of the 3/ 472 mtbr, arrived.²⁵⁸ He informed them that the units of the 3/472 mtbr would launch an attack on Srdj the following day and began delegating tasks to the various units relating to the operation.²⁵⁹ The objective, he said, was to take Srdj quickly and hold onto the position, so as to be able to exercise control over the surrounding terrain. No other objectives were mentioned.²⁶⁰ Those who attended the meeting testified that Captain Kovacevic had said that the plan to attack Srdj had been approved by the superior command.²⁶¹ The Chamber notes that this clearly indicates at least the commander of the 9 VPS but could equally indicate the commander of the 2 OG. The company commanders inquired about artillery support for the attack and were told that support would come from the 120mm mortar company located in Uskoplje²⁶² as well as the units stationed in Cilipi (130mm howitzers) and Lieutenant-Colonel Jovanovics unit, the 3/5 mtbr, based at Osojnik (120mm mortars).²⁶³ Smaller mortars and cannons as well as rockets were company weapons under the command of those present.

91. In the Chambers view, the content of this discussion is significant. First, it offers clear support for the veracity of the evidence that Captain Kovacevic had earlier attended a meeting at Kupari at which the commanders of the Cilipi howitzer battery and of the 3/5 mtbr were present and the battle plan for the taking of Srdj the next day was put in place. Secondly, as the Cilipi howitzer battery and the 3/5 mtbr were not under Captain Kovacevics command, the involvement of those units demonstrates that the plan for the attack, and its implementation, involved coordinated planning at a higher level than the 3/472 mtbr. In this case the other units were each subject to the command of the 9 VPS, Admiral Jokic, and, at the next level, of the 2 OG, so the attack plan was consistent with the involvement of those two commands, or, at least, with the involvement of the command of the 9 VPS. Thirdly, it demonstrates the significance of artillery support for an attack such as this. The need for it was immediately a concern of those who were to actually lead the ground assault troops, and had been anticipated by those planning the attack at a higher level. The plan provided for the use of quite a formidable artillery capacity. In addition to the smaller 82mm mortars attached to each company of the 3/472 mtbr, there were two 120mm mortar companies, the anti-armour company at Zarkovica with an array of weapons, including recoilless cannons and Maljutka rockets, ZIS cannons and the heavy 130mm howitzer cannons at Cilipi. With limited exceptions, all of these had the capacity to fire at the wider Dubrovnik including Srdj and the Old Town. The exceptions were that the 120mm mortars of the 3/5 mtbr at Osojnik could not quite reach the Old Town, and the 120mm mortars at Uskoplje could not reach all of the suburbs or localities of Dubrovnik to the far northwest of the Old Town, although, between them, the two 120mm mortar batteries and the 82mm mortar battery at Strincijera could target the whole of Dubrovnik, including the Old Town. There were also other 82mm mortars batteries in the 3/472 mtbr but the evidence does not clearly identify their location. There is also a question about the range of the 82mm recoilless cannons at Zarkovica. This is considered later in these reasons, where the finding of the Chamber is made that these cannons could target Srdj and the Old Town from Zarko

92. After this meeting in Ivanica, Lieutenant Pesic, stationed in the village of Bosanka, was contacted by his commander, Captain Stojanovic, who had attended the meeting. Lieutenant Pesic was assigned the task of assembling a small squad of men to launch the assault against Srdj the next morning.²⁶⁴ Lieutenant Lemal who was at the Ivanica meeting was assigned the task of leading a second squad from his command post at Strincjera in the assault against Srdj.²⁶⁵ These squads were to have the support of two T-55 tanks as well as the various artillery batteries.²⁶⁶

93. Captain Pepic was at his unit on the evening of 5 December 1991 when he received an order from his commander, Lieutenant-Colonel Stamenov, commander of the 107 OAG, to go to the observation point at Zarkovica by 0600 hours on the following morning. Captain Pepic was ordered to lend fire support to the 3/472 mtbr in taking control of the Srdj feature. For this purpose he would be resubordinated to Captain Kovacevic.²⁶⁷ The observation post on Zarkovica was not always manned by members of Captain Pepics battery it was only when an attack was expected or an operation was to be launched.²⁶⁸ It is Captain Pepics evidence that his commander, Lieutenant-Colonel Stamenov, had attended the customary daily briefing of the command of the 9 VPS in Kupari and that it was here that he had received the information about the attack, which he had subsequently conveyed to Captain Pepic.²⁶⁹

94. Additional preparations for the attack were made during the night. During the Ivanica meeting, Lieutenant Lemal had requested equipment to support the mission, including flak jackets, plastic explosives and grenades. This was delivered to his position at Strincijera by Admiral Jokics Chief of Staff, Warship-Captain Zec, sometime before midnight,²⁷⁰ evidence which offers yet further confirmation of the direct involvement of the staff of the command of the 9 VPS, especially the Chief of Staff. Similarly, Lieutenant- Colonel Stojanovic had requested certain equipment to enable Lieutenant Pesic to carry out his assigned task in the attack on Srdj. During the night Lieutenant- Colonel Stojanovic was contacted by phone and asked to report to Zarkovica, where he picked up the equipment he had requested.²⁷¹"

"256. Captain Nesic, T 8164; Lieutenant -Colonel Stojanovic, T 7821; Lieutenant Lemal, T 7366.

257. Lieutenant-Colonel Stojanovic, T 7821; Lieutenant Lemal, T 7366.

258. Lieutenant Lemal, T 7366; 7458 -7459; Captain Nesic, T 8164.

259. Lieutenant Lemal, T 7368.

260. Lieutenant-Colonel Stojanovic, T 7822-7824; Captain Nesic, T 8165-8166.

261. Lieutenant-Colonel Stojanovic, T 7822; Lieutenant Lemal, T 7367.

262. Lieutenant-Colonel Stojanovic, T 7847-7848.

263. Lieutenant Lemal, T 736.

264. Lieutenant Pesic, T 7897.

265. Lieutenant Lemal, T 7368-7369.

266. Lieutenant-Colonel Stojanovic, T 7800 ; 7849-7853 ; Captain Nesic, T 8166 ; Lieutenant Lemal, T 7369; Lieutenant Pesic, T 7897.

267. Captain Pepic, T 7481-7482.

268. Captain Pepic, T 7482.

269. Captain Pepic, T 7490-7491.

270. Lieutenant Lemal, T 7369-7370.

271. Lieutenant-Colonel Stojanovic, T 7825. See also Captain Nesic, T 8167. He was located at Zarkovica and testified that Lieutenant-Colonel Stojanovic picked up some equipment for his troops on the evening of 5 December 1991."

[B.Evidentiary comment:]

P.17.3. Evidence of conversations indicating that the perpetrator knew the attack was occurring

A. Legal source/authority and evidence:

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 160:

"160. The total effect of the evidence about these issues leaves the Chamber persuaded that it should accept the evidence of Admiral Jokic that he and the Accused did speak by telephone about the shelling of Dubrovnik, and especially about the shelling of the Old Town, during the morning of 6 December 1991, and that they spoke more than once. Given evidence as to protests originating from Minister Rudolf and the ECMM monitors very early after shells commenced falling on the Old Town around or not long after 0600 hours,⁵¹⁶ the Chamber finds that an ECMM protest may well have reached General Kadijevic in Belgrade before 0700 hours that morning from the ECMM representative staff in Belgrade.⁵¹⁷ The Chamber is persuaded, therefore, that despite its reservation about some aspects of the evidence of Admiral Jokic as to his actions that morning, it should accept the evidence of Admiral Jokic that the first conversation he had with the Accused was at around 0700 hours and was a conversation in which the Accused reported that a protest about the shelling of Dubrovnik had already reached General Kadijevic. The Chamber has reservations about some of the other detail of that conversation, as recalled in the evidence of Admiral Jokic, which reservations were developed earlier in these reasons.⁵¹⁸"

"516. See supra, paras 101- 102.

517. Admiral Jokic, T 4050. See also Milovan Zorc, T 6639-6640.

518. See supra, para 152."

[B.Evidentiary comment:]

P.17.4. Evidence of an armed attack.

A. Legal source/authority and evidence:

ICRC, Study on Customary Rules of International Humanitarian Law, Volume II: Practice, Part I (2005), p. 649:

"55.In a resolution on Somalia adopted in 1994, the UN Security Council condemned "violence and armed attacks against persons engaged in peace-keeping efforts" and re-emphasised the importance it attached to "the safety and security of United Nations and other personnel engaged in peacekeeping throughout Somalia⁴⁸".

"⁴⁸UN Security Council, Res. 897, 4 February 1994, Preamble."

[B.Evidentiary comment:]

P.17.5. Evidence of beating and killing.

P.17.6. Evidence of placing a bomb.

P.17.7. Evidence of destroying property.

A. Legal source/authority and evidence:

ICRC, Study on Customary Rules of International Humanitarian Law, Volume II: Practice, Part I (2005), p. 635:

"343. In a resolution adopted in 1999 on the safety and security of humanitarian personnel and protection of UN personnel, the UN General Assembly strongly condemned "acts of destruction and looting" of the property of those participating in humanitarian operations.³⁴⁷ The General Assembly urged all states "to take the necessary measures to respect and ensure respect for the inviolability of United Nations premises".³⁴⁸"

"³⁴⁷UN General Assembly, Res. 54/192, 17 December 1999, preamble.

³⁴⁸ UN General Assembly, Res. 55/92, 17 December 1999, §2."

P.17.8. Evidence of placing mines.

A. Legal source/authority and evidence:

ICRC, Commentary on the Additionnal Protocols of 8 June 1997 to the Geneva Conventions of 12 August 1949, para.1081:

"During the above-mentionned enquiry the question arose whether the placing of mines constituted an attack. The general feeling was that there is an attack whenever a person is directly endangered by a mine laid".

[B.Evidentiary comment:]

P.17.9. Evidence of firing a missile at a carrier.

P.17.10. Evidence of a sniper shooting a peacekeeper.

A. Legal source/authority and evidence:

ICRC, Study on Customary Rules of International Humanitarian Law, Volume II: Practice, Part I (2005), p. 654:

"89. In 1995, in a statement by its President following the fatal shooting of a French peacekeeper by a sniper in Sarajevo, the UN Security Council condemned "in the strongest terms such acts direct at peace-keepers who are serving the cause of peace in the Republic of Bosnia and Herzegovina" and reiterated that such attacks "should not remain unpunished".⁸⁷"

"⁸⁷UN Security Council, Statement by the President, UN Doc. S/PRST/1995/, 14 April 1995."

[B.Evidentiary comment:]

P.17.11. Evidence of firing at humanitarian aid assistance workers or peacekeepers.

P.17.12. Evidence of planning the detention of peacekeepers and humanitarian assistance workers.

A. Legal source/authority and evidence:

ICRC, Study on Customary Rules of International Humanitarian Law, Volume II: Practice, Part I (2005), p. 649:

"⁵² UN Security Council, Res. 913, 22 April 1994, Preamble."

[B.Evidentiary comment:]

P.18. Evidence inferred from a circumstance.