Table of contents:
P.11. Evidence of that the object of the attack is a place of worship or other religious building.
P.11.1. Evidence that the object of the attack is a mosque.
P.11.2. Evidence that the object of the attack is a church.
P.11.3. Evidence that the object of the attack is a synagogue.
P.11.4. Evidence that the object of the attack is a monastery
P.11.5. Evidence that the object of the attack is a seminary.
P.11.6. Evidence that the object of the attack is tombs, tombstones or cemeteries.
P.12. Evidence of that the object of the attack is a school or educational building.
4.1.2. Evidence that the object of the attack is a historic monument.
P.13. Evidence of damage to palaces.
P.14. Evidence of great importance to the cultural heritage of peoples.
P.15. Evidence that the object of the attack is a hospital.
4.2. The objects were not military objectives.
P.16. Evidence of object lacking strategic importance.
Element:
A. Evidentiary comment:
The equivalent provision under the ICTY Statute, article 3(d), refers to "institutions" dedicated to specific protected purposes rather than "buildings". However the jurisprudence of the ICTY appears to treat the term "institutions" as referring to the physical buildings involved.
P.11. Evidence of that the object of the attack is a place of worship or other religious building.
P.11.1. Evidence that the object of the attack is a mosque.
A. Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 320:
"320. The Chamber also observes that among those buildings which were damaged in the attack, were monasteries, churches, a mosque, a synagogue and palaces.977 [ ]"
"977. E.g. Franciscan Monastery, Orthodox Church, St Vlaho (St Blaise) Church, Mosque, Synagogue, Onofrio Fountain, Cathedral etc. See Annex I, the buildings listed under Nos: J4, J16, J13, J19, J35, J7 and J12."
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement (AC), 17 December 2004, para. 589:
"589. [ ] The Trial Chamber further relied on Witness TW12,823 who testified
The evidence of Witness TW12 show clearly that the mosque was deliberately set on fire."
"823. Based on transcripts from the Blakić trial.
824. Blakić, T. 9532."
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 644 657:
"(ii) Bosanska Krupa
644. The Bosanska Krupa town mosque was mined by Bosnian Serb forces in April 1992. As a result of ensuing explosion, the minaret fell.1636 [ ] The mosque in the village of Arapusa was also destroyed by explosives.1638
(iii) Bosanski Novi
645. In early May or June 1992, the town mosque in Bosanski Novi was shelled and set on fire by Bosnian Serb soldiers.1639 The walls were badly damaged but the minaret remained standing. Heavy machinery was brought from Prijedor in order to knock down the minaret. When the mosque was destroyed, trucks arrived to remove the rubble from the mosque. The site was then flattened and used as a parking lot. The tombs of the cemetery were also removed.1640
646. Other Muslim institutions dedicated to religion in the municipality of Bosanski Novi were targeted by Bosnian Serb forces. The Vidorije mosque was burned down in May 1992.1641 The mosques in Prekosanje, Urije and Gornji Agici were also destroyed.1642 During an attack by Bosnian Serb forces on Suhaca, the two mosques in the village were badly damaged by the shelling.1643 The old wooden mosque in Blagaj Rijeka and its minaret was set on fire.1644 The mosque in Blagaj Japra was also damaged.1645 The minaret on the roof of the mosque in Donji Agici was blown off by an explosion and the roof structure collapsed.1646
(iv) Bosanski Petrovac
647. The mosques in the centre of Bosanski Petrovac town, named Donji Biscani and Srednji Biscani were damaged by Bosnian Serb forces in July 1992.1647 Following explosions, the minarets of the Donji Biscani and Srednji Biscani mosques fell to the ground. The following days the rubble was cleared away by trucks.1648 The minaret of the Rasinovac mosque was also blown up by Bosnian Serb forces.1649
(v) Celinac
648. The old wooden mosque in the town of Celinac was mined.1650 After the explosion, trucks cleared away what was left.1651 The smaller mosque in town and the little Catholic Chapel at the exit from town were also destroyed by Bosnian Serb forces. The latter was destroyed in mid 1992.1652
(vi) Donji Vakuf
649. The three mosques in the town of Donji Vakuf were targeted by Bosnian Serb forces.1653 The main mosque called Basdzamija was mined and as a result was completely destroyed.1654 The rubble of this mosque was loaded on trucks and thrown in the river Vrbas and on its banks. The location of the mosque was subsequently turned into a parking lot.1655 The other two mosques in town were set on fire.1656 A number of mosques were also destroyed by Bosnian Serb forces in the municipality. Three of the four mosques in the village of Prusac were damaged in August or September 1992. The mosques were riddled with bullets and some of the minarets were destroyed.1657 The mosque in the hamlet of Seherdzik was destroyed by men wearing JNA uniforms on 9 August 1992. Due to the explosion, the walls of the mosque collapsed but part of the minaret was left standing.1658 The mosque in the village of Sokolina was set on fire by men wearing olive grey uniforms in June 1992.1659
(vii) Kljuc
650. Mosques and other institutions dedicated to religion were destroyed in Kljuc by Bosnian Serb forces. The Kljuc town mosque and its minaret was destroyed in August 1992, during the night.1660 The Biljani Mosque was set on fire in the morning of 10 July 1992 when the village was attacked by Bosnian Serb forces.1661
(viii) Kotor Varos
651. During attacks on villages in Kotor Varos by Bosnian Serb forces in June and July 1992, the mosques in the villages of Vrbanjci and Hanifici were set on fire and mined.1662 [ ]
(ix) Prijedor
652. The most systematic and brutal infliction of damage to both Muslim and Catholic institutions dedicated to religion occurred in Prijedor. [ ]
653. In areas surrounding Prijedor town, institutions dedicated to religion were targeted by Bosnian Serb forces. [ ] In Kamicani, the mosque was set on fire.1667 The Mutnik mosque in Kozarac was destroyed in mid 1992.1668 The minaret of the mosque in Kozarusa was badly damaged.1669 The mosque in Gornji Puharska was razed to the ground.1670 The new mosque in Kevljani was completely destroyed by mines. The minaret and the mosque were blown up with explosives.1671 The Gornji Jakupovici mosques minaret was badly damaged by mines.1672
(x) Prnjavor
654. The town mosque in Prnjavor was targeted twice. On the first occasion it was damaged, and on the second it was razed to the ground.1673 Attacks by Bosnian Serb forces also took place in Prnjavor municipality. The mosque in Lisnja was damaged by shelling and set on fire in 1992, by Bosnian Serb forces. 1674 The mosque in Puraci was blown up.1675
(xi) Sanski Most
655. Mosques in Sanski Most were also subject to major damage by Bosnian Serb forces. The mosques in the villages of Capalj, Hrustovo, Lukavice, Kamengrad and Tomina were destroyed in 1992 by the Bosnian Serb forces.1676
(xii) Sipovo
656. In Sipovo, the Staro Sipovo, Besnjevo and Pljeva mosques were bombed during the night on 7 August 1992 by Bosnian Serb forces. The mosques and their minarets were completely destroyed and the tombstones in the vicinity were also damaged.1677
(xiii) Teslic
657. [ ] The mosques in the surrounding villages of Barici and Ruzevici were also destroyed by Bosnian Serb forces.1679"
"1636. Muho ]ehic, ex. P1913, 92bis statement, 02907042; BT-56, T. 17498.
[ ]
1638. Muho ]ehic, ex. P1913, 92bis statement, 02907043.
1639. BT-81, T. 13787-13788; Colin Kaiser, T. 16470-16471.
1640. Malik Kapetanovic, ex. P1912 , 92bis statement, 02907027; Colin Kaiser, T. 16470-16471. See, e.g., ex. P1183.2., "Supplement to the Report on the Damaging and Destruction of Muslim and Roman Catholic Sacral Buildings in the Municipalities of Bosanski Novi, Donji Vakuf, Kljuc, Kotor Varos, Prijedor and Sanski Most in the 1992-95 War, with specific reference to 1992".
1641. Malik Kapetanovic, ex. P1912 , 92bis statement, 02907027.
1642. Malik Kapetanovic, ex. P1912 , 92bis statement, 02907027; Colin Kaiser, T. 16470-16471; BT-83, T. 14087 .
1643. BT-50, ex. P1641, 92bis statement, 00672857 (under seal); BT-82, T.13969, 14012.
1644. Midho Alic, T. 13881; BT-49 , T.14223 (closed session).
1645. Midho Alic, T. 13881.
1646. Colin Kaiser, T. 16408; BT- 83, T. 14087
1647. Ahmed Hidic, T. 16254; Jovo Radojko, T. 20194; See, e.g., ex. P1863 which is a report prepared by a Muslim organisation in 1997 recording the total amount of destruction in Bosanki Petrovac during the war. The three mosques listed in the report were destroyed in July 1992 : Ahmed Hidic, T. 16254; Dzemal Fazlic, ex. P1978, 92bis statement, 00942944 ; Alem Jaganjac, ex. P1910, Rule 92bis Statement, 02907001.
1648. Alem Jaganjac, ex. P1910, 92bis statement, 02907001.
1649. Alem Jaganjac, ex. P1910, 92bis statement, 02907001; ex. P1863, "Report, Information on dead, wounded, displaced and missing persons", dated 25 March 1997, p. 6.
1650. Mehmet Talic, T. 24164; BT- 90, T. 17073 (closed session); Boro Mandic, T. 21374. See, e.g., ex. P1992 , "News item", dated 12 June 1992, which provides: "[I]n Celinac, at one oclock in the morning, one or more unknown perpetrators attacked the building of the Mosque Board with hand grenades." See, e.g., ex. P1788 which states "[ ] an Muslim place of worship in Prnjavor has been demolished. Some time before that, the one in Celinac was also demolished[ ]"
1651. BT-90, T. 17089 (closed session ).
1652. BT-90, T. 17074 (closed session ); Mehmet Talic, T. 24164.
1653. BT-103, T. 19954 (closed session); See, e.g., ex. P1750 "Document", reporting that "the mosques in Donji Vakuf,, where Moslems had lived in harmony with their Serbian neighbours for generations, are now empty and destroyed [ ]"; Dzevad Doslic, T. 14859-60.
1654. BT-103, T. 19954 (closed session ); BT-89, T. 14810-11 (closed session); Colin Kaiser, T. 16469.
1655. Dzevad Doslic, T. 14859-14860 .
1656. Dzevad Doslic, T. 14857-14862 ; Colin Kaiser, T. 16469.
1657. Senad Alkic, T. 14996.
1658. Hamdija Begovic, ex. P1908, 92bis statement, 02907117.
1659. Avdo Habib, ex. P1909, 92bis statement, 02907140.
1660. Samir Dedic, T. 10443-10444 .
1661. Dzevad Dzaferagic, 92bis statement, 02061866. The mosque was visited by the Trial Chamber and the Parties during the site visit which took place in March 2004.
1662. BT-74, ex. P2046, 92bis statement, 01076158 (under seal); Redjo Alagic, ex. P1915, 92bis statement , 02119435; Idriz Alekic, ex. P1895, 92bis statement, 02119431. Hanifici mosque was visited by the Trial Chamber and the Parties during the site visit which took place in March 2004.
[ ]
1667. Nerim Karagic, T. 6249.
1668. Ivo Atlija, T. 12035; BT-38 , ex. P556, T. 1650 (under seal); see, e.g., ex. P1128.35 "Photograph of the Mutnik mosque."
1669. BT-63, ex. P1968 T.11054-55 (under seal).
1670. Nusret Sivac, T. 6608.
1671. Colin Kaiser, T. 16404-05. This location was visited by the Trial Chamber and the Parties during the site visit which took place in March 2004.
1672. Colin Kaiser, T. 16408.
1673. Jasmin Odobasic, T. 15128; BT-51, ex. P1784, 92bis statement, 00635471 (under seal); see, e.g., ex. P1788, "Report", dated 22 June 1992, which states: "an Muslim place of worship in Prnjavor has been demolished." See, e.g., ex. P1789, "Document dated 6 August 1992", which states in para. 2: "All places of worship not belonging to the Serbian Orthodox Church are being demolished in the Teslic and Prnjavor areas."
1674. BT-91, T. 15898; Rusmir Mujani c, T. 16017.
1675. Jasmin Odobasic, T. 15130; Rusmir Mujanic, T. 16015-16018.
1676. BT-21, T. 8621-8623 (closed session); Rajif Begic, T. 6373-6375, 6394-6395; BT-93, T. 20428 (closed session); BT-23, T. 6422, 6444.
1677. BT-105, T. 19103. See, e .g., ex. P2404, "Document mentioning the destruction of the Staro Sipovo, Besnjevo and Pljeva mosques". BT-92 heard only about the destruction of the mosque in Besnjevo, T. 19856.
[ ]
1679. Mehmed Tenic, T. 16902-16903."
Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 607:
607. There is no dispute that the mosque in Sovici was blown up and destroyed.1486 The date of the destruction of the mosque is unclear; from the evidence presented at trial, however, the Chamber is satisfied that the mosque was destroyed between 18 and 20 April 1993.1487 Both the mosque in Sovici and the one in Doljani were destroyed.1488
1486. Naletilic Final Brief, p 33, states that "[t]he Defence does not dispute the Sovici mosque was blown up and destroyed, but there has not been evidence beyond reasonable doubt that this was accomplished under the command, order or direction of Naletilic". See also witness NN, T 12899-12900 and witness NW, T 14965-14966, both testifying for the Defence of Mladen Naletilic. In the earlier stages of the trial the Defence seems to have argued that the mosque was not recognisable as a mosque, see inter alia, witness A, T 550-552.
1487. Witness W testified that he learned in Ljubuski prison, i.e. after 18 April 1993, that the mosque had been destroyed, witness W, T 3180-3181. On 17 April 1993, the mosque was still intact, witness A, T 500. On 20 April, witness D heard a blast, and they later learned that the mosque had been destroyed; witness D, T 912 and T 945. Witness X could see the mosque burning from the Sovici school, witness X, T 3326, 3342 (confidential), in drawing conclusions form the rest of her testimony the day she saw the mosque burn was most probably 19 or 20 April 1993. Defence witness NW testified that the mosque was blown up on 18 April 1993, Defence witness NW, T 14965-14966. Witness B testified that during the night, he heard a very loud explosion and later he learned that the mosque had been blown up, witness B, T 790-791. Defence witness NN testified that the mosques in Sovici and Doljani had been blown up on 17, 18 or 19 May 1993, Defence witness NN, T 12899-12900, 12934 Witness Y testified that on 18 April 1993 he saw that the mosque was damaged, T 3389. Witness A testified that the mosque was not damaged on 17 April 1993, witness A, T 500-501; witness B, T 790-791. Exhibits PP 333 and PP 333.1 state that the mosque was destroyed after the hostilities.
1488. Witness Said Smajkic, T 4086-4087; exhibits PP 333, PP 333.1. See also exhibit PP 6.6, which is an aerial photograph of the destroyed mosque in Sovici; exhibits PP 8.6, PP 8.7, which are aerial photographs of the destroyed mosque in Doljani.
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, paras. 804, 806 807, 809:
"804. The Prosecution produced a video recording made in 1996 showing the damage to the villages of the Lasva Valley and surroundings.1707 The recording was taken from a helicopter and prepared by Lt. Colonel Jean-Pierre Capelle, who gave evidence about it.1708 [ ] In Kiseljak the minaret of the mosque has disappeared. The helicopter then travelled north, up the valley, over [ ] Hercezi, with a destroyed mosque; [ ] Svinjarevo, with a damaged mosque. [ ] The helicopter then travelled up the "Kacuni corridor", south-east of Busovaca (held by the ABiH during the war), passing over [ ]Ahmici, where there were many destroyed houses as well as some intact ones inhabited by Croats and where the minaret had fallen on the roof of the mosque. [ ]"
"1707 - Ex. Z2799.
1708 - Lt. Col. Jean-Pierre Capelle, T. 13308-43."
806. The evidence about the Kiseljak municipality was as follows. [ ] Witness TW12 described the attack on Grahovci, where the HVO came into the village to set fire to houses; he saw the HVO stealing cars, buses and cattle and saw HVO soldiers set fire to the mosque. Visnjica was attacked on 18 April 1993 and houses were set on fire.1717 [ ] The mosque was also looted.1719 [ ] The HVO attacked Svinjarevo on 18 April 1993. The mosque was burnt down and about 100 houses were destroyed. [ ] The Han Ploca mosque was set on fire first and then the houses.1727 [ ]
807. The evidence about the Vitez municipality may be summarised as follows:
[..]
(ii) Stari Vitez: [ ] Edib Zlotrg heard Pero Skopljak say that he ordered the shelling of the minaret at Stari Vitez because a Muslim sniper was operating from there.1733 Four mosques and one Muslim junior seminary were destroyed in Vitez municipality.1734
(iii) Ahmici: In the attack on 20 October 1992, the HVO used incendiaries on three to four houses and damaged 15 others. The top of the minaret of the mosque was hit by a shell.1735 On 17 April 1993 the rest of the mosque was destroyed.1736 On his visit to Ahmici on 22 April 1993, Colonel Bryan Watters saw burnt houses with charred remains inside, and destruction to the minaret and mosque.1737 [ ]"
"1717 - Witness D, T. 2057-58.
[ ]
1719 - Witness TW25, T. 6639.
[ ]
1727 - Witness TW08, T. 9003.
[ ]
1733 - Edib Zlotrg, T. 1703.
1734 - Ex. Z2715.
1735 - Abdulah Ahmic, T. 3551-53.
1736 - Abdulah Ahmic, T. 3588.
1737 - Ex. Z1504-1523; Dan Damon, T. 6632-33; Charles McLeod, T. 2688-90."
"809. Likewise (in respect of the offence of destruction of institutions dedicated to religion or education alleged in Counts 43 and 44), the HVO deliberately targeted mosques and other religious and educational institutions. This included the Ahmici mosque which the Trial Chamber finds was not used for military purposes but was deliberately destroyed by the HVO. Accordingly, the Trial Chamber finds that the underlying offences in Counts 43 and 44 are made out (save in relation to the locations deleted at the close of the prosecution case). [ ]"
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 351, 418 423, 511, 600, 618, 626:
"351. [ ]The witness Abdullah Ahmic explained that the HVO had first of all fired on the minaret of the Donji Ahmici mosque after the Muslims had used the mosque to call for the Croats to surrender their arms 597 . [ ]"
"597 - Witness Abdullah Ahmic, PT p. 3722."
"418. [ ] The witness Baggesen, ECMM observer, reported that "it was a whole area that was burning" 870. The report of the Joint Busovaca Commission, dated 21 April, showed that the ICRC had made enquiries that afternoon in Ahmici and noted that all the Muslims situated in Ahmici-west had left and that 90% of the houses together with the area's mosque, had been destroyed 871. [ ]"
871 - This information appears also in the report of the ECMM whose team accompanied the ICRC team. P242, "Report on inter-ethnic violence in Vitez, Busovaca and Zenica in April 1993", Annex N to ECMM H/S 720, 15 May 1993. Events reported by ECMM and UN, 13-30 April 1993, Annex R to ECMM H/S 720, 15 May 1993, p. R-7.
"419. Several religious edifices were destroyed. The Defence did not deny the destruction of the mosque at Donji Ahmici or of the matif mesjid873 at Gornji Ahmici. However, it did maintain that the reason for this destruction was that "the school and church in Ahmici became locations of fighting following the attack by the Fourth Military Police Battalion" 874 ."
"420. Conversely, the Prosecutor contended that "both mosques were deliberately mined and given the careful placement of the explosives inside the buildings, they must have been mined after HVO soldiers had control of the buildings" 875."
"421. The Trial Chamber notes at the outset that according to the witness Stewart, it was barely plausible that soldiers would have taken refuge in the mosque since it was impossible to defend 876. Furthermore, the mosque in Donji Ahmici was destroyed by explosives laid around the base of its minaret877. According to the witness Kaiser, this was "an expert job" which could only have been carried out by persons who knew exactly where to place the explosives878. The witness Zec stated that he had heard a Croatian soldier speaking on his radio asking for explosives "for the lower mosque in Ahmici"879. The destruction of the minaret was therefore premeditated and could not be justified by any military purpose whatsoever. The only reasons to explain such an act were reasons of discrimination."
"422. The Trial Chamber notes that that mosque had just been built. The inhabitants of Ahmici had collected the money to build it and were extremely proud of its architecture 880."
"423. It is undeniable that the matif mesjid in Gornji Ahmici was destroyed 881. The ECMM also noted the destruction of the mosque in the eastern quarter of the village 882."
"873 - Mosque with no minaret. P47
874 - Defence Brief, book X, p. 490.
875 - Prosecutor's Brief, book V, p. 45.
876 - Witness Stewart, PT p. 23864.
877 - Witness Thomas, PT pp. 2645-2650; PT p. 23660.
878 - Witness Kaiser, PT p. 10663. See also witness Thomas, PT p. 2650.
879 - Witness Zec, PT p. 4286-4287.
880 - Witness Baggesen, PT of 22 August 1997 p. 1931; Abdullah Ahmic, PT pp. 3769-3770.
881 - See in particular P47/49, P47/77, P47/78, P47/80, and P47/81.
882 - P242, "Report on inter-ethnic violence in Vitez, Busovaca and Zenica in April 1993", Events reported by ECMM and UN, 13-30 April 1993, Annex R to ECMM H/S 720, p. R-7."
"511. The explosion occurred near houses belonging to civilians, thus causing numerous civilian victims together with many possessions of a civilian or religious nature, such as the roof of the mosque. [ ]"
"600. The HVO soldiers pillaged 1343 and torched the Muslim homes of the village and drove away their inhabitants. They slightly damaged the mosque by setting fire to it 1344."
"1343. Witness LL, PT pp. 8062-8064.
1344 - Witness LL, PT p. 8031."
"618. [ ] The Han Ploca mosque was burned 1416 and its imam killed 1417. [ ]"
"1416 - Witness QQ, PT p. 8937; witness TT, PT pp. 9328-9329; witness UU, PT pp. 9532-9533.
1417 - Witness QQ, PT p. 8950; witness RR, PT pp. 8979-8980."
"626. [ ] The mosques in Behrici, Gomionica, Gromiljak, Visnjica and Han Ploca were also looted, damaged or demolished."
[B. Evidentiary comment:]
P.11.2. Evidence that the object of the attack is a church.
A. Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 320:
"320. The Chamber also observes that among those buildings which were damaged in the attack, were monasteries, churches, a mosque, a synagogue and palaces.977 [ ]"
"977. E.g. Franciscan Monastery, Orthodox Church, St Vlaho (St Blaise) Church, Mosque, Synagogue, Onofrio Fountain, Cathedral etc. See Annex I, the buildings listed under Nos: J4, J16, J13, J19, J35, J7 and J12."
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 644, 648, 651, 652, 657:
"(ii) Bosanska Krupa
644. [ ] The Roman Catholic Church in town was also destroyed.1637 [ ]"
"1637. BT-56, T. 17498."
"(v) Celinac
648. [ ] The smaller mosque in town and the little Catholic Chapel at the exit from town were also destroyed by Bosnian Serb forces. The latter was destroyed in mid 1992.1652"
"1652. BT-90, T. 17074 (closed session ); Mehmet Talic, T. 24164."
"(viii) Kotor Varos
651. [ ] The Roman Catholic Church in the town of Kotor Varos was also set on fire.1663"
"1663. BT-71, T. 17651. See, e.g. ex., P2185, "Extract from the Minutes of the 53rd session of Crisis Staff " held on 2 July 1992. This location was visited by the Trial Chamber and the Parties during the site visit which took place in March 2004."
"(ix) Prijedor
652. The most systematic and brutal infliction of damage to both Muslim and Catholic institutions dedicated to religion occurred in Prijedor. In late August 1992 Bosnian Serb soldiers broke into the Roman Catholic Church in Prijedor to plant explosives in it. At 0100 hours the explosives detonated and destroyed the church.1664 The police appeared indifferent to the reports on the events.1665"
"1664. Nusret Sivac, T. 6607-07; BT -28, ex. P557, 92bis statement, 01799804 (under seal); Kerim Mesanovic, T . 11247, 11255-11256.
1665. BT-28, ex. P557, 92bis statement, 01799805 (under seal)."
"(xiii) Teslic
657. In the town of Teslic, the Roman Catholic Church was demolished during an attack by the Serb forces in mid 1992.1678 [ ]"
"1678. Mehmed Tenic, T. 16902."
[B. Evidentiary comment:]
P.11.3. Evidence that the object of the attack is a synagogue.
A. Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 320:
"320. The Chamber also observes that among those buildings which were damaged in the attack, were monasteries, churches, a mosque, a synagogue and palaces.977 [ ]"
"977. E.g. Franciscan Monastery, Orthodox Church, St Vlaho (St Blaise) Church, Mosque, Synagogue, Onofrio Fountain, Cathedral etc. See Annex I, the buildings listed under Nos: J4, J16, J13, J19, J35, J7 and J12."
[B. Evidentiary comment:]
P.11.4. Evidence that the object of the attack is a monastery
A. Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 320:
"320. The Chamber also observes that among those buildings which were damaged in the attack, were monasteries, churches, a mosque, a synagogue and palaces.977"
"977. E.g. Franciscan Monastery, Orthodox Church, St Vlaho (St Blaise) Church, Mosque, Synagogue, Onofrio Fountain, Cathedral etc. See Annex I, the buildings listed under Nos: J4, J16, J13, J19, J35, J7 and J12."
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 643:
"643. On 9 April 1992, the Franciscan Monastery in Petricevac was damaged. The investigations carried out established that the Monastery was hit by a missile from a hand held rocket launcher.1635"
"1635. Ex. P144, "Report from the Banja Luka SJB", dated 9 April 1992."
[B. Evidentiary comment:]
P.11.5. Evidence that the object of the attack is a seminary.
A. Legal source/authority and evidence:
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 807:
"807. The evidence about the Vitez municipality may be summarised as follows:
(ii) Stari Vitez: [ ] Four mosques and one Muslim junior seminary were destroyed in Vitez municipality .1734"
"1734 - Ex. Z2715."
[B. Evidentiary comment:]
P.11.6. Evidence that the object of the attack is tombs, tombstones or cemeteries.
A. Legal source/authority and evidence:
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 656:
"656. [ ] The mosques and their minarets were completely destroyed and the tombstones in the vicinity were also damaged.1677"
"1677. BT-105, T. 19103. See, e .g., ex. P2404, "Document mentioning the destruction of the Staro Sipovo, Besnjevo and Pljeva mosques". BT-92 heard only about the destruction of the mosque in Besnjevo, T. 19856."
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para.806:
"806. [ ] The village was plundered and 131 of its 159 houses were destroyed , along with the Mekteb and the Turbe.1721"
"1721 - Witness TW04, T. 9262, 9264-64, 9269-72, 9278, 9280, 9311-15."
[B. Evidentiary comment:]
P.12. Evidence of that the object of the attack is a school or educational building.
A. Legal source/authority and evidence:
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para 91 92, 806 807:
"91. [ ] Article 1 of the Hague Convention of 1954 refers to property which is "of great importance to the cultural heritage" and not as in Article 53 of Additional Protocol I, to objects which "constitute the cultural or spiritual heritage". The Commentary on the Additional Protocols states that despite this difference in terminology, the basic idea is the same, and that the cultural or spiritual heritage covers objects whose value transcends geographical boundaries, and which are unique in character and are intimately associated with the history and culture of a people.102
92. The Appeals Chamber cannot see how all educational buildings fulfil these criteria. Therefore, the Appeals Chamber finds that the Trial Chamber erred when it considered that "educational institutions are undoubtedly immovable property of great importance to the cultural heritage of peoples".103 The Trial Chamber did not consider whether and under which conditions the destruction of educational buildings constituted a crime qua custom at the time it was allegedly committed. Although Hague Convention IV is considered by the Report of the Secretary-General as being without doubt part of international customary law,104 it does not explicitly refer to buildings dedicated to education. The same applies to Article 53 of Additional Protocol I and it is suggested that the adjective "cultural" used in Article 53 applies to historic monuments and works of art and cannot be construed as applying to all institutions dedicated to education such as schools. Schools are, however, explicitly mentioned in Article 52 of Additional Protocol I, which relates to schools, places of worship and other civilian buildings. Article 23(g) of the Hague Regulations states that it is especially forbidden to "destroy ( ) the enemys property, unless such destruction ( ) is imperatively demanded by the necessities of war." The Report of the Secretary-General states that the above instrument and the Regulations annexed thereto have beyond doubt become part of international customary law.105 There is no doubt that the crime envisaged of destruction of educational buildings was part of international customary law at the time it was allegedly committed."
"102. Commentary on the Additional Protocols, p. 646.
103. Trial Judgement, para. 360.
104. Report of the Secretary-General, para. 35.
105. Report of the Secretary-General, para. 35."
"806. [ ] Gomionica was also attacked on 18 April 1993. The village was plundered and 131 of its 159 houses were destroyed , along with the Mekteb and the Turbe.1721 [ ]
807. The evidence about the Vitez municipality may be summarised as follows:
(iv) Veceriska Donja Veceriska: The village was destroyed by explosives and fire during the HVO attack on 16 April 1993.1739 In Gacice the Muslim houses were burned and the Mekteb destroyed in the HVO attack of 20 April.1740"
"1721 - Witness TW04, T. 9262, 9264-64, 9269-72, 9278, 9280, 9311-15."
1739 - Witness V, T. 10391-96.
1740 - Witness AP, T. 15876-77; photographs, Ex. Z1760-63."
The ICTY Trial Chamber in Kordić (Judgment para. 360) considered that all educational institutions were protected institutions in respect of crimes under article 3(d) of the ICTY Statute. The Appeals Chamber disagreed, holding that not all educational institutions are necessarily culturally important enough to be protected under the 1954 Hague Convention criteria. The Tribunal did not consider whether educational institutions should nonetheless all be covered by article 3(d) because they are "institutions dedicated to charity and education". Article 8(2)(b)(ix) is worded slightly differently and appears to cover all educational buildings.
4.1.2. Evidence that the object of the attack is a historic monument.
P.13. Evidence of damage to palaces.
A. Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, paras. 313, 320:
"313. The Accused must answer charges that at least some degree of damage or destruction was sustained by 116959 buildings and structures in the course of the 6 December attack on the Old Town of Dubrovnik. These are listed in the Annex to the Rule 98bis Decision.960 They include the six buildings alleged to have been completely destroyed in the attack: namely: Palace Od Sigurate 1 (Festival Palace), Palace Od Sigurate 2, Palace Martinusic Sv. Josipa 1, Palace Od Puca 11, Palace Od Puca 16, Palace Sorkocevic Miha Pracata 6.961 In addition, the Prosecution submits that it has proven damage to the Institute for the Protection of Cultural Monuments (C1), a building not listed in the Annex, resulting from the 6 December attack on the Old Town.962"
"959. In the course of the Rule 98bis Decision, the original list of 450 buildings listed in Schedule II to the Indictment, which had been allegedly destroyed and damaged as a result of the 6 December shelling, was substantially reduced.
960. Rule 98bis Decision, Annex: Part A listed 96 buildings and structures identified in Schedule II of the Indictment; Part B listed 20 buildings and structures that could not be readily identified in Schedule II of the Indictment but which were located in the Old Town.
961. Indictment, para 23.
962. Prosecution Final Brief, paras 193-194."
"320. The Chamber also observes that among those buildings which were damaged in the attack, were monasteries, churches, a mosque, a synagogue and palaces.977 [ ]"
"977. E.g. Franciscan Monastery, Orthodox Church, St Vlaho (St Blaise) Church, Mosque, Synagogue, Onofrio Fountain, Cathedral etc. See Annex I, the buildings listed under Nos: J4, J16, J13, J19, J35, J7 and J12."
P.14. Evidence of great importance to the cultural heritage of peoples.
A. Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, paras. 21, 327:
"21. The Old Town of Dubrovnik is endowed with an exceptional architectural heritage, including palaces, churches and public buildings.35 The city first rose to prominence as a significant trading centre in the 13th century,36 and the oldest buildings in the Old Town date from this period.37 The fortifications of the Old Town, begun in the 12th century and completed in the mid 17th century, are widely regarded as some of the finest examples of city fortifications in Europe.38 Demilitarisation of this historic area was a precondition to the recognition of the Old Town as a World Heritage site by UNESCO in 1979.39 One of the unique features of the Old Town is that it has remained a living city. In fact, in 1991, the Old Town had an estimated population of between 7,000 and 8,000 residents.40 Within its city walls, the Old Town is fairly densely populated. Its palaces, which would previously have housed not more than a single noble family, have been divided up into flats and line the narrow streets of the Old Town. Stradun is the main street bisecting the Old Town on a west east axis.41"
"35. Exhibit P14, p 6.
36. Exhibit P14, p 2.
37. Exhibit P14, p 3.
38. Exhibit P14, p 5.
39. Exhibit P14, p 16.
40. See generally, John Allcock, T 461-464.
41. John Allcock, T 472."
"327. In relation to Count 6 specifically, the Chamber observes that the Old Town of Dubrovnik in its entirety989 was entered onto the World Heritage List in 1979 upon the nomination of the SFRY.990 The properties inscribed on the World Heritage List include those which, "because of their architecture, their homogeneity or their place in the landscape, are of outstanding universal value from the point of view of history, art or science."991 The Chamber is of the view that all the property within the Old Town, i.e. each structure or building, is within the scope of Article 3(d) of the Statute. The Chamber therefore concludes that the attack launched by the JNA forces against the Old Town on 6 December 1991 was an attack directed against cultural property within the meaning of Article 3(d) of the Statute, in so far as that provision relates to cultural property."
"989. The Old Town comprised: "The urban historical complex of Dubrovnik includes all the buildings erected from the XIIth to the XVIth century, within the precincts of the fortified walls. It covers an area of 15,2 ha [ ] The boundaries of the historical urban complex are precisely defined by the fortified walls, the former moats and, on the southern side, by the steep coast-line.", P63/2, p 1.
990. Colin Kaiser, T 2378-2379, Exhibits P63/2, P63/7; Exhibit P14, p 11.
991. Convention concerning the protection of the world cultural and natural heritage, adopted by the General Conference at its seventeenth session, Paris, 16 November 1972, Exhibit P63/11, Article 1."
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 411:
"411. Although the village of Ahmici had no strategic importance which justified the fighting, it was however of particular significance for the Muslim community in Bosnia. Many imams and mullahs came from there. For that reason, Muslims in Bosnia considered Ahmici to be a holy place. In that way, the village of Ahmici symbolised Muslim culture in Bosnia. The witness Watters was certain that Ahmici had been chosen as a target for that reason."
The ICTY has referred to article 27 of the Hague Regulations, article 53 of Additional Protocol I and the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict in interpreting which institutions are protected under article 3(d) of its statute: see Kordić Trial Judgment para. 359-362; Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001 para. 89-92; Brjdanin Trial Judgment para. 595-598.
Article 53 of Additonal Protocol I protects "historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples."
The 1954 Convention protects cultural property, which is defined in article I as:
The UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage, which in recalls articles 8(2)(b)(ix) and 8(2)(e)(iv), is expressed as addressing the intentional destruction of cultural heritage "including cultural heritage linked to a natural site." (article II(1))
P.15. Evidence that the object of the attack is a hospital.
A. Legal source/authority and evidence:
Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, paras. 244 245:
"244. Lastly, as concerns non-scheduled incidents of sniping and shelling, international observers and senior hospital staff testified that the State Hospital, located in Marin Dvor,556 was regularly fired upon during the Indictment period from SRK-controlled territory resulting in injuries to patients and staff and significantly damaging the hospital infrastructure. Ashton, who lived at the State Hospital from the end of 1992 until the beginning of 1993, testified to this fact.557 According to the witness, every day during that period began with the shelling of the hospital from Mount Trebevic. Anti-aircraft weapons were also used in these attacks.558 Ashton recalled one particularly intense shelling incident on 23 September 1992 which seriously damaged three parts of the hospital.559 On that occasion, from the fourth floor of the main hospital building, he saw in the direction of Pale the firing of heavy-weapons from SRK-controlled territory.560 He also observed shells being fired on the hospital from SRK-controlled positions above the Jewish cemetery in Grbavica.561 In October 1992 he saw a tank fire three times at the hospital from SRK-controlled territory on the road leading to Pale.562 Attacks from Grbavica against the hospital were launched also in October 1992, December 1992, and January 1993.563 Another witness, Van Lynden, recalled being at the hospital towards the end of 1992 when a large explosion, which he attributed to tank fire, rocked the facility and damaged an elevator shaft.564 Sometime in March 1993, Ashton witnessed a member of the medical staff being injured by shrapnel in the arm and leg while bringing patients in through the front of the hospital.565
245. Milan Mandilovic, surgeon at the State Hospital, testified that throughout the Indictment period, infantry fire caused great damage to the hospital.566 "The entire south facade, the east one as well, and partially the west, it was all bullet riddled from small arms."567 According to the witness the fire "came from the slopes of the Trebevic mountain, the Jewish Cemetery, and the Vrace part of Grbavica settlement. [...] Those are the zones that would correspond to the south easterly, southern, and south western side."568 Patients and hospital staff were wounded whilst in the hospital by sniper fire from those areas.569 He said that all twelve floors were damaged to some extent as result of shelling.570 The south side of the building, directly visible from SRK positions, was most severely shelled.571 Patients had to be moved to the north wing and to lower floors to be protected from the attacks.572 Bakir Nakas, the administrator of the State Hospital since May 1992,573 testified that the southern facade of the hospital, which faced the SRK-held territories of Vrace and Trebevic,574 was most exposed to fire, "almost 85 to 90 percent of hits were on that side".575 Nakas recalled that, in October 1992, a large bullet from an anti-aircraft gun injured his secretary in her office.576 In August 1993 a bullet struck his office.577 According to the witness, these attacks originated in the areas of Vrace and Mount Trebevic.578 Carl Harding, a UNMO in Sarajevo from July 1992 until January 1993, inspected the State Hospital on 31 December 1992579 and found that all three hospital buildings had been damaged from shelling. A 155 mm shell had damaged the ground floor of the casualty reception building, while other fire had destroyed parts of the upper floors of the main building.580 The third building of the hospital, the annex, also bore the scars of artillery attacks.581 By January 1993, shelling had reduced the bed capacity of the hospital to 200 from its pre-conflict level of 480 beds.582"
"556. Kupusovic, T. 664-5; Nakas, T. 1123; Ashton, T. 1282; Eterovic, T. 8844; P3645 (Map of Sarajevo marked by Ashton). This institution was also referred to at times as the "French" hospital, the "Army" hospital or the "Citizens" hospital, Kupusovic, T. 664-5; Harding, T. 4346-7.
557. Ashton, T. 1231.
558. Id.
559. Id.
560. Ashton, T. 1231 and 1235-6. Later, in 1994, Ashton visited the area of Pale where the fire had come from and was shown by SRK soldiers heavy weapons which were positioned in the vicinity, Ashton, T. 1236-7.
561. Ashton, T. 1232-3, 1243-4.
562. Ashton, T. 1244-5. In October 1992, he photographed the extensive damage done both to the fa?ade and rooms inside the hospital facing Grbavica, Ashton, T. 1393-4; P3641 (Selected photographs taken by Ashton).
563. Ashton, T. 1244. He was at the hospital during another shelling incident sometime in 1993; he climbed to one of the upper floors of the main building, peered towards Grbavica with his camera lens and saw a tank firing onto the hospital. T. 1394. Ashton had on hand a camera with high-definition lens he normally used for his profession, which enabled him to see at a distance, Ashton, T. 1245.
564. Van Lynden, T. 2140. Van Lynden also remembered going to the State hospital in May 1992 and observing that the medical facility "had been very badly shot up at that stage [of the conflict]", Van Lynden, T. 2089-90.
565. Ashton, T. 1266.
566. Mandilovic, T. 1090.
567. Mandilovic, T.1033-4
568. Mandilovic, T. 1034.
569. Mandilovic, T. 1034, 1036.
570. Mandilovic, T. 1013.
571. Mandilovic, T. 1013-4.
572. Mandilovic, T. 1020, 1036. The entire southern wing of the hospital was not operational throughout the war. All activities had to be transferred to the northern wing. During the intensive shelling, everything had to be transferred to the lower floors. The higher floors, that is, from the 5th to the 12th floor, were not operational. When the intensity of the shelling subsided, the activities of the hospital would move again to higher floors, T. 1090-1091.
573. Nakas, T. 1122-3.
574. Nakas, T.1123, 1129.
575. Nakas, T. 1126. After the first shelling of the hospital on 13 May 1992, the medical staff placed a large white flag with the Red Cross emblem in the southern section of the hospital facing Trebevic and the hill of Vrace, Nakas, T. 1123, 1182; Harding, T. 4348-50. The staff later took down this flag in September 1992 because exposure to gunfire had reduced it to tatters, Nakas, T. 1123-4.
576. Nakas, T. 1126-7.
577. Nakas, T. 1127. Judging by the location of the first impact, the witness concluded that the hits originated from the slope of Trebevic, which is an extension of Vrace hill, Nakas, T. 1127. He also testified that fragments from tank, artillery and mortar explosives were recovered at the hospital after shelling incidents, Nakas, T. 1190.
578. Nakas, T.1189-90.
579. P3661 (Battle damage assessment of State hospital dated January 1993 by Carl Harding).
580. Id.
581. Id.
582. Id."
B. Evidentiary comment:
The equivalent crime under the ICTY statute (article 3(d)) does not deal with attacks to hospitals and places where the sick and wounded are collected. The case law (e.g. Galić) has dealt with attacks on hospitals as willful attacks on civilans.
4.2. The objects were not military objectives.
A. Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 309 310:
"309. The Hague Regulations of 1907 make the protection of cultural property dependent on whether such property was used for military purposes.952 The Hague Convention of 1954 provides for an obligation to respect cultural property. This obligation has two explicit limbs, viz. to refrain "from any use of the property and its immediate surroundings for purposes which are likely to expose it to destruction or damage in the event or armed conflict", and, to refrain "from any act of hostility directed against such property."953 The Convention provides for a waiver of these obligations, however, but only when "military necessity imperatively requires such a waiver."954 The Additional Protocols prohibit the use of cultural property in support of military efforts, but make no explicit provision for the consequence of such a use, i. e. whether it affords a justification for acts of hostility against such property. Further, the Additional Protocols prohibit acts of hostility against cultural property, without any explicit reference to military necessity. However, the relevant provisions of both Additional Protocols are expressed to be "without prejudice to" the provisions of the Hague Convention of 1954.955 This suggests that in these respects, the Additional Protocols may not have affected the operation of the waiver provision of the Hague Convention of 1954 in cases where military necessity imperatively requires waiver. In this present case, no military necessity arises on the facts in respect of the shelling of the Old Town, so that this question need not be further considered. For the same reason, no consideration is necessary to the question of what distinction is intended (if any) by the word "imperatively" in the context of military necessity in Article 4, paragraph 2 of the Hague Convention of 1954.
310. Nevertheless, the established jurisprudence of the Tribunal confirming the "military purposes" exception956 which is consistent with the exceptions recognised by the Hague Regulations of 1907 and the Additional Protocols, persuades the Chamber that the protection accorded to cultural property is lost where such property is used for military purposes. Further, with regard to the differences between the Blakić and Naletilic Trial Judgements noted above (regarding the use of the immediate surroundings of cultural property for military purposes), and leaving aside any implication of the issue of imperative military necessity, the preferable view appears to be that it is the use of cultural property and not its location that determines whether and when the cultural property would lose its protection.957 Therefore, contrary to the Defence submission,958 the Chamber considers that the special protection awarded to cultural property itself may not be lost simply because of military activities or military installations in the immediate vicinity of the cultural property. In such a case, however, the practical result may be that it cannot be established that the acts which caused destruction of or damage to cultural property were "directed against" that cultural property, rather than the military installation or use in its immediate vicinity."
"952. Article 27 of The Hague Regulations of 1907 reads in the relevant part " provided they are not being used at the time for military purposes."
953. Article 4, para 1 of The Hague Convention of 1954.
954. Article 4, para 2 of The Hague Convention of 1954.
955. Article 53, Additional Protocol I; Article 16, Additional Protocol II.
956. Blakić Trial Judgement, para 185; Kordić Trial Judgement, para 362; Naletilic Trial Judgement, para 922; Brđanin Trial Judgement, para 598.
957. As Article 27 of The Hague Regulations explicitly refers to "in sieges and bombardments", it is not because of the location of cultural property, but because of their use when cultural property loses its protection. Article 16 of the Second Protocol of the Hague Convention of 1954 strengthens this view. It states, as a waiver of the protection of cultural property, that "when and as long as (i) that cultural property has, by its function, been made into a military objective". (emphasis added). See also Naletilic Trial Judgement, para 604.
958. Defence Final Trial Brief, paras 615, 617."
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement (AC), 17 December 2004, para. 53:
"53. Article 52(1) of Additional Protocol I prohibits explicitly attacks or reprisals on civilian objects. It defines civilian objects as "all objects which are not military objectives". Further, Article 52(1) defines military objectives as "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". Moreover, Article 52(3) of Additional Protocol I provides that in case of doubt as to 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. The Appeals Chamber notes that the imperative "in case of doubt" is limited to the expected conduct of a member of the military. However, when the latters criminal responsibility is at issue, the burden of proof as to whether an object is a civilian one rests on the Prosecution."
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 596 598:
"596. [ ] Institutions dedicated to religion must be presumed to have a civilian character and to enjoy the general protection to which these objects are entitled to under Article 52 of Additional Protocol I.1507 Pursuant to Article 52 of Additional Protocol I, institutions dedicated to religion as general civilian objects should not be attacked.1508 They may be attacked only when they become a military objective. 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 neutralisation, in the circumstances ruling at the time, offers a definite military advantage.1509
597. Further, the exception to the protection of institutions dedicated to religion is set out in Article 27 of the Hague Regulations:
598. The "military purpose" exception to the protection of institutions dedicated to religion has been confirmed consistently by this Tribunal.1511 The Trial Chamber agrees that the protection afforded under Article 3 (d) is lost if the property is used for military purposes."
"1507. The Jokic Sentencing Judgement stated that the prohibition to direct attacks against this kind of property is additional to the prohibition to attack civilian objects, para. 50. The Blakić Trial Judgement held that specific provisions of Article 3 of the Statute cover the provision of Additional Protocol I relating to unlawful attack upon civilian targets, See Blakić Trial Judgement, para. 170. Article 52 of Additional Protocol I is therefore imported in the Statute under Article 3.
1508. Additional Protocol I prohibits attacks on civilian objects in Article 52 (1) and describes civilian objects as "all objects which are not military objectives as defined in paragraph 2". Paragraph 3 states: " 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 no to be so used."
1509. Article 52 (2) Additional Protocol I. The definition of military objective in Article 52 (2) is today considered to be customary law (States not party to Additional Protocol I, such as the United States, Turkey and India confirmed the customary law nature of this provision during the 1999 Diplomatic Conference that adopted the Second Protocol to the 1954 Convention on Protection of Cultural Property).
1510. Other Conventions provide for an exception to the protection: Article 5 of the Hague Convention IX which applies to bombardments by naval forces, provides: "[a]ll the necessary measures must be taken by the commander to spare as far as possible sacred edifices, buildings used for artistic, scientific, or charitable purposes, historic monuments, hospitals, and places where the sick or wounded are collected, on the understanding that they are not used at same time for military purposes." Article 4 of the Convention for the Protection of Cultural Property also provides that cultural property, including institutions dedicated to religion, shall not be subject to any act of hostility nor used for purposes which are likely to expose it to destruction or damage in the event of armed conflict, with the exception of "imperative military necessity ". See, e.g., Article 5 of the Roerich Pact.
1511. Blakić Trial Judgement , para. 185; Kordić Trial Judgement, para. 362; Naletilic Trial Judgement , para. 605."
Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, para. 51:
"51. As mentioned above, in accordance with the principles of distinction and protection of the civilian population, only military objectives may be lawfully attacked.94 A widely accepted definition of military objectives is given by Article 52 of Additional Protocol I as "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".95 In case of doubt as to whether an object which is normally dedicated to civilian purposes is being used to make an effective contribution to military action, it shall be presumed not to be so used.96 The Trial Chamber understands that such an object shall not be attacked when it is not reasonable to believe, in the circumstances of the person contemplating the attack, including the information available to the latter, that the object is being used to make an effective contribution to military action."
"94 - Article 52(2) of Additional Protocol I. See Kordić Trial Judgement, para. 327.
95 - Article 52(2) of Additional Protocol I.
96 - Article 52(3) of Additional Protocol I."
Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 604:
"604. The Chamber respectfully rejects that protected institutions "must not have been in the vicinity of military objectives". The Chamber does not concur with the view that the mere fact that an institution is in the "immediate vicinity of military objective" justifies its destruction.1484"
"1484. This conclusion follows from Article 27 of the Hague Regulations."
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 185:
"185. The damage or destruction must have been committed intentionally to institutions which may clearly be identified as dedicated to religion or education and which were not being used for military purposes at the time of the acts. In addition, the institutions must not have been in the immediate vicinity of military objectives."
Prosecutor v. Zoran Kuprekić et al., Case No. IT- 95-16-T, Judgement (TC), 14 January 2000, para. 523:
"523. In the case of clear abuse of their rights by civilians, international rules operate to lift that protection which would otherwise be owed to them. Thus, for instance, under Article 19 of the Fourth Geneva Convention, the special protection against attacks granted to civilian hospitals shall cease, subject to certain conditions , if the hospital "(is used) to commit, outside (its) humanitarian duties, acts harmful to the enemy", for example if an artillery post is set up on top of the hospital."
B. Evidentiary comment:
Article 3(d) of the ICTY Statute does expressly not contain any equivalent of the proviso in article 8(2)(b)(ix) ("provided they are not military objectives"). However, the Tribunal has held that the offence is not made out where the otherwise protected object was being used for military purposes.
The Trial Chamber in Blakić went further and stated that no offence was committed if the protected object was "in the immediate vicinity of military objectives" (Judgment para.185). The Trial Chamber in Naletilic rejected that approach, saying that "the mere fact that an institution is in the immediate vicinity of military objective justifies its destruction." (Judgment para. 604). In Strugar (Judgment at para. 310) the Trial Chamber favoured the approach in Naletilic, saying that
According to the ICTY Trial Chamber in the Brđanin Judgment, "institutions dedicated to religion must be presumed to have a civilian character " (see para. 596). As the Chamber in that case did not deal with other types of cultural buildings protected from attack, it is not clear whether it would have extended the presumption to other protected buildings. But the Appeals Chamber in Kordić (at para. 53) decided soon after, but without referring expressly to the Trial Judgment in Brđanin, that:
The footnote to the heading of article 8(2)(b)(ix) in the Elements of Crimes document, which provides that: "The presence in the locality of persons specially protected under the Geneva Conventions of 1949 or of police forces retained for the solie purpose of maintaining law and order does not by itself render the locality a military objective."
P.16. Evidence of object lacking strategic importance.
A. Legal source/authority and evidence:
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 411:
"411. Although the village of Ahmici had no strategic importance which justified the fighting, it was however of particular significance for the Muslim community in Bosnia. [ ]"
A. Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 72, 122, 183 184, 189, 190, 284, 288:
"72. No Croatian artillery was positioned in the Old Town of Dubrovnik in November 1991.196 However, there were JNA reports of shooting incidents from the Old Town walls and turrets in the beginning of November. These reports do not, however, indicate that the Croatian forces were positioned on the Old Town walls and turrets throughout the rest of November.197 A number of witnesses testified that there was no outgoing fire from the Old Town in November.198 Individuals armed with light weapons, such as pistols, could be observed moving around the Old Town but there were no set defence positions.199"
"196. Paul Davies, T 627-628.
197. Admiral Jokic, T 4963-4973.
198. Paul Davies, T 603; Captain Negodic, T 5260-5261.
199. Paul Davies, T 3601."
"122. [ ] The Chamber notes that the references to fire from the direction of Dubrovnik, or the wider Dubrovnik, are not evidence of firing from the Old Town. The Chamber also observes that the firing from the area of tennis courts at Babin Kuk is an apparent misdescription; other evidence indicates this to have been from the area of tennis courts at Hotel Libertas. Both the Hotel Libertas and Babin Kuk are well to the northwest of the Old Town."
"183. By way of general observation, to which the Chamber attaches significant weight, the Chamber notes that by 6 December 1991 there were quite compelling circumstances against the proposition that the Croatian defenders had defensive military positions in the Old Town. To do so was a clear violation of the World Heritage protected status of the Old Town. The Chamber accepts there was a prevailing concern by the citizens of the Old Town not to violate the military free status of the Old Town.592 That is the view of the Chamber, notwithstanding suggestions in the evidence that at times in earlier stages of the conflict there were violations of this by Croatian defending forces.593 Whether or not that was so, in particular by early December 1991, independent ECMM military monitors had again established themselves at Dubrovnik and were specifically concerned inter alia to look out for violations of ceasefire agreements.594 United Nations Agency officials had also arrived, including the witness Colin Kaiser who was actually staying in the Old Town on 5 and 6 December, for whom the protection, and military free status, of the Old Town were matters of direct responsibility.595 The events over the preceding weeks had also attracted reporters and cameramen of the world media to Dubrovnik and the Old Town.596
184. The presence of these various independent observers, who were alert to observe activities in the Old Town especially any military operations, highlights the improbability that the Croatian defenders would establish or utilise defensive positions in the Old Town, or fire artillery or other weapons from the Old Town, and that any such activity could go undetected. No one of the witnesses from these independent interests who gave evidence observed any defensive positions, any military activity, or any artillery or other firing from the Old Town on 5 or 6 December 1991.597"
"592. Captain Negodic, T 5240; 5242 ; The evidence shows that the Old Town was generally free from military positions (Nikola Jovic, T 2966; Lucijana Peko, T 1877; 1955-1960; Captain Negodic, T 5240 -5242; Delo Jusic, T 3124-3125; Zineta Ogresta T 3494; Mato Valjalo T 2012). The local authorities imposed a ban on armed persons to enter the Old Town and special checks were carried out at the town gates in order to enforce the ban (Nikola Jovic, T 2988-2989; Captain Negodic, T 5240-5241; Ivo Vlasica T 3424-3425). However, a small number of soldiers could occasionally be seen in the streets of the Old Town, sometimes with rifles or pistols (Dordje Ciganovic, T 2902; Nikola Jovic, T 2985-2986; Colin Kaiser, T 2466; Mato Valjalo, T 2011; Lieutenant-Colonel Stojanovic, T 7816-7820; Captain Negodic, T 5240). The Trial Chamber disregards the evidence of Ivo Grbic to the effect that no uniformed persons were present in the Old Town, considering that it is in contradiction with the majority of the evidence on the issue and the witness was by no means in a position to assess the situation in all the places within the town walls, T 1415-1418. A similar testimony given by Slobodan Vukovic is likewise to be approached with caution, as that witness was not present in the Old Town on that day, until late evening, T 6144-6145; T 5825-5826.
593. Admiral Jokic, T 4970-4972.
594. Per Hvalkof, T 2237-2238.
595. Colin Kaiser, T 2379-2380; 2471 -2480.
596. Paul Davies, T 568-569.
597. Lars Brolund, T 874; Per Hvalkof, T 2218-2219."
"189. The Chamber finds itself entirely convinced by the evidence of Captain Negodic that the only active anti-aircraft weapon of the Croatian defenders in this vicinity was located by the base of the cable car,630 i.e. outside the Old Town in a position which offered some protection from JNA fire but from which it could be used against attacking JNA aircraft, Srdj and Zarkovica. [ ]"
"630. Captain Negodic, T 5215-5216 ; 5221."
"190. [ ] Some witnesses excluded the presence of any heavy weaponry, armaments or artillery in the Old Town.636 Ivo Grbic, Captain Negodic and Ivo Vlasica testified that no anti-aircraft weapon was located in the Old Town.637 Nikola Jovic and Per Hvalkof said there were no mortars there.638 According to Jozef Poje, a military expert, the Old Town is not a favourable place for the firing of a mortar because of the dense population, the narrow streets and the high buildings, and because there are only hard firing surfaces.639 Captain Negodic pointed out that the Old Town was made of stone and its streets are very narrow. It was his opinion that placing any weapon there would have caused more damage to the surrounding houses than to the enemy.640 The narrowness of the streets and the height of the buildings would preclude a mortar being sighted on any anticipated JNA target in most locations."
"636. Delo Jusic T 3124, Zineta Ogresta T 3494, Mato Valjalo T 2011, Per Hvalkof T 2221.
637. Ivo Grbic, T 1451; Captain Negodic, T 5226 ; Ivo Vlasica, T 3362.
638. Nikola Jovic, T 2966; 3010-3011 ; 3014; Per Hvalkof, T 2219.
639. Jozef Poje, T 6224.
640. Captain Negodic, T 5241. Per Hvalkof also doubted whether the Old Town was suitable for mortars, T 2219."
"284. [ ] 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. [ ]
"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."
"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. [ ]"
"928. See supra, para 214.
929. See supra, paras 193-194."
Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, para. 508:
"508. The witnesses indicated further that, despite occasional outgoing ABiH fire from hospital ground, the SRK attacks were in fact directed at the hospital and served no military purpose. As result of the incident reported to Cutler, Harding re-visited the Kosevo hospital in January 1993 to assess whether it was being shelled as result of SRK counter-battery fire, or deliberately targeted.1740 He could not find any of the distinctive traces usually left by mortars.1741 On the basis of his observations at the Hospital, Harding concluded that:
"1740. Mole, T. 11140; Harding, T. 4371-2.
1741. Harding, T. 4371-3.
1742. Harding, T. 4372."
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 404, 407, 421:
"404. The Defence also invoked the presence of units of the 325th ABiH Mountain Brigade in Ahmici and the neighbouring villages. General Blakić claimed that the command of these units was located at the primary school in Ahmici. But documents submitted in support of that assertion mention only the village of Ahmici with no further details as to the number of soldiers, the amount of equipment there or the precise location of their headquarters. Moreover, the "defense" orders issued by the accused on the eve of the attack did not mention the presence of the 325th Brigade at all."
"407. The Trial Chamber also notes that much of the evidence contradicted the Defence submission that the ABiH forces were preparing for combat. Witness Abdullah Ahmic, inter alia, described the armed Muslim units present in the Ahmici area in April 1993 to the Trial Chamber. According to his testimony, the territorial defence was starting to organise in the area and consisted of about 120 men812 whose main task was to carry out night watches 813. According to that witness, their participation was purely voluntary and there was no disciplinary sanction for those who failed to take their turn on guard814. It was therefore a sort of civil defence 815 rather than an army strictly speaking. The members of the territorial defence were very badly equipped and most of them were dressed as civilians and did not think of themselves as soldiers816. There was no barracks in Ahmici 817. Witness Hadihasanović confirmed this information, stating that owing to the lack of men and of equipment, and in particular of barracks, the only armed presence in the village of Ahmici and those nearby was a territorial defence unit from Zenica in case of a Serb parachute attack 818. The Trial Chamber notes moreover that the HVO had already disarmed the Muslim forces in these villages in October 1992, following the conflicts which occurred when a roadblock was erected by Muslim forces on the main Busovaca to Vitez road at Ahmici . 819"
"812 - Witness Abdullah Ahmic, PT pp. 3720-3721 and 3788-3789.
813 - Witness Abdullah Ahmic, PT p. 3721.
814 - Witness Abdullah Ahmic, PT pp. 3831-3833.
815 - Witness Abdullah Ahmic, PT pp. 3788-3789.
816 - Witness Abdullah Ahmic, PT pp. 3720-3721 and 3787-3789. See also Witness Kavazovic (PT of 27 August 1997 pp. 2354-2355 and 2452-2453) who stated that he joined the TO voluntarily and nonetheless thought of himself as a civilian when he was not in uniform. In fact, he only wore his uniform during the day and in the evening went back home and did not exercise any official function. In other words, he thought of himself as a soldier when he was in uniform and as a civilian when he was not.
817 - Witness Abdullah Ahmic, PT pp. 3802-3803.
818 - Witness Hadihasanović, PT pp. 23221-23225.
819 - P647: report submitted by the then Colonel Blakic to the authorities in Mostar 21 October 1992."
"421. The Trial Chamber notes at the outset that according to the witness Stewart, it was barely plausible that soldiers would have taken refuge in the mosque since it was impossible to defend. Furthermore, the mosque in Donji Ahmici was destroyed by explosives laid around the base of its minaret. According to the witness Kaiser, this was "an expert job" which could only have been carried out by persons who knew exactly where to place the explosives. The witness Zec stated that he had heard a Croatian soldier speaking on his radio asking for explosives "for the lower mosque in Ahmici". The destruction of the minaret was therefore premeditated and could not be justified by any military purpose whatsoever."
A. Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, paras. 196, 203:
"196. The Chamber now records aspects of the evidence of the Croatian military positions. A detailed description of the Croatian military positions in the town of Dubrovnik was given by Captain Negodic, who commanded the Croatian artillery defence on 6 December 1991, though not the anti-aircraft weapons. It was his evidence that two 82mm mortars were located from 100 to 120 metres to the east from the city walls of the Old Town, at Lazareti. As the main purpose of that position was to prevent a possible attempt by JNA infantry to breakthrough from the area between Bosanka and Zarkovica, the mortars did not fire on 6 December 1991.654 Ammunition, which was in scarce supply because of the blockade, had been stored in readiness near that position, underneath steps leading down the wall. On 6 December 1991, two mortars and four shells were there.655 Captain Negodic testified that a combat position for an anti-aircraft weapon was located outside the Old Town near the lower part of the cable-car which goes up to Fort Srdj.656 This position is about 150 metres from the wall of the Old Town. There was a position for an anti -aircraft weapon to the east from the Old Town, in the Ploce area, at Zlatni Potok. It is his evidence that the weapon placed there did not fire on 6 December 1991.657 Captain Negodic said that there was a group of 10 or 15 infantry men in Gradac Park whose task was to prevent entry into a small harbour.658 He also mentioned that in the park there was an alternative position for an anti-aircraft weapon.659 Captain Negodic stated that on 6 December 1991 a 76mm ZIS cannon was positioned at Mala Petka. According to the witness, the weapon fired with four shells towards the area of Pobrezje and Knezovi. Captain Negodic said that, subsequently, the ammunition from that position was transferred to the position near the Iva Vojnovica street.660 It was the Captains testimony that even further to the northwest, near the camping ground of Solitudo, there was a position for three 120mm mortars and three 82mm mortars. On 6 December 1991 those weapons fired towards the fortress at Srdj and Strincjera.661 A position for a three-barrel cannon was located near Solitudo at Orsan, Lazaret, which is far to the northwest from the Old Town. On 6 December 1991 that weapon fired towards the area of Srdj.662 An anti-aircraft weapon, a mobile 20mm single-barrelled gun, was positioned at the bay near the Lapad Hotel. It was deployed on 6 December 1991.663 According to Captain Negodic, a single-barrel 128mm rocket-launcher was positioned on a small hill 150 metres north of the Libertas Hotel. On 6 December 1991 it fired one rocket at Zarkovica.664 Two 82mm mortars were positioned near the SDK building. This is to the northwest and well away from the Old Town. On 6 December 1991 they fired at the area of the fortress of Srdj, as well as the Zarkovica-Bosanka road.665 The position was so well hidden that even when it was firing, it was not visible from the JNA positions.666 After 1130 hours on that day the mortars positioned there were out of ammunition.667 Captain Negodic testified that a 76mm ZIS cannon was positioned under a bridge at the Iva Vojnovica street. The testimony of the witness was that on 6 December 1991 that cannon fired with about 170 shells at the area of the fortress of Srdj and at Zarkovica.668 He further referred to a Maljutka positioned near the President Hotel669 and a recoilless cannon located at a small bay at Solitudo,670 neither of which was deployed on 6 December 1991."
"654. Captain Negodic, T 5187-5189.
655. Captain Negodic, T 5194-5195 ; Admiral Jokic, T 4963-4966 ; Exhibit P146.
656. Captain Negodic, T 5221.
657. Captain Negodic, T 5225-5226.
658. Captain Negodic, T 5463-5464.
659. Captain Negodic, T 5215-5216.
660. Captain Negodic, T 5182-5186 ; 5430; Exhibit P159.
661. Captain Negodic, T 5174-5175 ; 5430 ; Exhibit P159.
662. Captain Negodic, T 5213-5214 ; Exhibit P160.
663. Captain Negodic, T 5215, 5323 ; Exhibit P160.
664. Captain Negodic, T 5176-5179 ; Exhibit P159.
665. Captain Negodic, T 5186-5187.
666. Captain Negodic, T 5343.
667. Captain Negodic, T 5233 and 5428.
668. Captain Negodic, T 5180-5181, 5395-5396, 5422-5424.
669. Captain Negodic, T 5167-5168 ; Exhibit P159.
670. Captain Negodic, T 5170-5173 ; Exhibit P159."
"203. The firing positions described in the preceding paragraphs are located various distances from the Old Town. All are outside the Old Town. Some of them are so remote from the Old Town that any attempt to neutralise them by the JNA forces, even using the most imprecise weapons, could not affect the Old Town. As regards the positions which are closer to the Old Town, the Chamber heard expert evidence as to which positions in the vicinity of the Old Town, if targeted by the JNA, would give rise to a risk of incidental shelling of the Old Town."
P.19. Evidence of undoubtedly civilian use of the object.
A. Legal source/authority and evidence:
Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, paras. 255, 497:
"255. [ ] It is further satisfied that the passengers in the tram were civilians. Moreover, the tram was visibly a civilian vehicle, which functioned during cease-fires, along a set route, and it could not have been confused for a military objective. [ ]"
"497. [ ] Witnesses called by both the Prosecution and the Defence provided uncontested testimonies that Kosevo Hospital was a widely known civilian medical facility.1695"
"1695 - Many witnesses confirmed that either they or persons they knew were treated at the hospital during the conflict in Sarajevo. See for example Witness L, T. 2524, 2570; Jusovic, T. 4150; Bokailo, T. 5052; Witness AK-1, T. 5484; Dzonko, T. 5648; Kapetanovic, T. 5769; Pita, T. 5915; Fazlic, T. 6611-2; Gavranovic, T. 6715; Menzilovic, T. 7045; Mehonic, T. 7331; Witness AI, T. 7666; Ljusa, T. 7866-7, 7879; Kapetanovic, T. 7957; Arifagic, T. 12713; Witness DP51, T. 13627."
