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)(v) Attacking undefended places » 3. The perpetrator attacked one or more towns, villages, dwellings or buildings.

Element:

3. The perpetrator attacked one or more towns, villages, dwellings or buildings.

3.1.1. Evidence of an attack on one or more towns, villages, dwellings or buildings.

P.1. Evidence of combat actions.

A. Legal source/authority and evidence:

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 282:

"282. Pursuant to Article 49(1) of Additional Protocol I to the Geneva Conventions "attacks" are acts of violence against the adversary, whether in offence or in defence. According to the ICRC Commentary an attack is understood as a "combat action" and refers to the use of armed force to carry out a military operation at the beginning or during the course of armed conflict.⁹⁰³[]"

"⁹⁰³ ICRC Commentary on the Additional Protocols, p 603. See also Kordić Appeals Judgment, para 47."

P.2. Evidence of acts of violence.

A. Legal source/authority and evidence:

Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, para. 52:

"52."Attack" is defined in Article 49 of Additional Protocol I as "acts of violence against the adversary, whether in offence or in defence." The Commentary makes the point that "attack" is a technical term relating to a specific military operation limited in time and place, and covers attacks carried out both in offence and in defence.⁹⁷ The jurisprudence of the Tribunal has defined "attack" as a course of conduct involving the commission of acts of violence.^98"

"⁹⁷ ICRC Commentary, para. 4783.

⁹⁸ Krnojelac Trial Judgment, para. 54; Kunarac Trial Judgment, para. 415."

P.3. Evidence of shelling.

A. Legal source/authority and evidence:

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, , paras. 50, 62 64, 99 105:

"50. On 23 -24 October 1991, the Old Town was shelled for the first time.¹⁰⁹ The JNA artillery fire was directed at the Old Town, Lapad, Gruz, and Ploce.¹¹⁰ The shelling began around noon¹¹¹ and lasted for about an hour.¹¹² Until then the inhabitants had thought that they were safe in the Old Town as it had UNESCO status.¹¹³ The shelling caused damage to several buildings in the Old Town.¹¹⁴"

"109. Ivo Grbic, T 1347-1348; Ivan Mustac, T 1461.

110. Captain Negodic, T 5164.

111. Ivan Mustac, T 1461-1462.

112. Lucijana Peko, T 1845-1846.

113. Delo Jusic, T 1358-1359; Lucijana Peko, T 1843-1844

114. The shelling caused damage to : (a) the atrium of the Sponza Palace (Ivan Mustac, T 1462); (b) the roof of the Rupe museum (Lucijana Peko, T 1847; Ivo Grbic, T 1349-1350); and buildings on both sides of the Boskovica Street (Lucijana Peko, T 1848-1849; Ivo Grbic, T 1349-1350 ); see also Delo Jusic, confirming damage in respect to one building in the street, T 1358-1359. There may have been damage to other buildings. See infra , paras 318-319."

"62. Despite these orders, on 9, 10, 11, and 12 November 1991, in the context of the JNA operations ordered on 9 November, Dubrovnik, including the Old Town, was shelled. The fact that Dubrovnik, especially the Old Town, was again shelled in this November period has been clearly established.¹⁴⁸ In determining the location, duration and intensity of the shelling in November, the Chamber has had, inter alia, recourse to the evidence of Paul Davies, a British journalist and the reports of ECMM monitors, admitted through Per Hvalkof. The Chamber finds that a period of concentrated shelling of Dubrovnik commenced on 9 November 1991 and effectively ended on 12 November 1991, although there were individual incidents that occurred on 13 November. On 9 November in a protest letter to the Accused, Per Hvalkof, then head of Regional Centre of the ECMM in Split reports as follows : "Our monitor teams in Dubrovnik have this morning reported shelling in Dubrovnik by JNA forces on land and sea, starting before 0900 hours. I strongly protest against this serious breach of the ceasefire, which I request be restored immediately."¹⁴⁹ On Paul Daviess evidence the shelling also started on 9 November 1991.¹⁵⁰ It continued on 10 November,¹⁵¹ at which point the Old Town itself first came under attack. An ECMM report from that day records "heavy shelling" from land (Zarkovica) and sea.¹⁵² In particular, it notes the launching of "several mortars shelling, gun fire as well as at least 5 anti-tanks rockets against the Old city walls and the Old port. Some shellings, as reported, touched the Old inner city."¹⁵³ That same day, Paul Davies and his team, while investigating reports that the Old Town had been hit, heard what they believed to be mortars hitting the Old Town. They were told that there had been three others before.¹⁵⁴ They were shown the damage to the Franciscan complex in the Old Town, including the monastery and the convent.¹⁵⁵

63. On 11 November 1991 the attack on Dubrovnik intensified.¹⁵⁶ In the context of a much broader attack on Dubrovnik, a lot of shells were falling very close to the Old Town, as well as within the Old Town itself.¹⁵⁷ Paul Davies and his team were filming the shelling on 11 November 1991. On his evidence, the shelling was so heavy that day that he and his team were able to recognise a pattern of noise, followed by the trajectory of the shell and the point of impact.¹⁵⁸ An ECMM monitor stated in his report on 11 November that on that evening he could see the old port on fire, as well as part of the city beyond the walls.¹⁵⁹

64. The shelling continued on 12 November. The ECMM monitors reported sporadic shelling in the morning, which escalated in the afternoon. They also recorded a "continuation of the burning fire in the city", although it is not clear if this refers to the Old Town.¹⁶⁰ It was the evidence of Paul Davies that the attack that day, unlike the previous days of shelling, was concentrated on the Old Town.¹⁶¹ He characterised the attack on the Old Town that day as "deliberate" and "sustained ".¹⁶² He and his team filmed between 15 and 17 impacts of wire-guided missiles, although he testified that the total number of such missiles used on 12 November 1991 against the Old Town was probably somewhere between 30 and 100.¹⁶³ The wire-guided missiles hit the walls of the Old Town, the boats moored in the sheltered area in the port of the Old Town, as well as hitting locations within the Old Town.¹⁶⁴ The evidence establishes that the shelling of the Old Town on 12 November was intense.¹⁶⁵"

"148. Ivo Grbic, T 1352-1354; Ivo Vlasica, T 3320; T 3326; Lucijano Peko, T 1847-1848; Captain Negodic, T 5257-5262.

149. Exhibit P61, tab 10. See also Exhibit P61, tab 23, p 5.

150. Paul Davies, T 577.

151. See inter alia, a protest letter from Per Hvalkof dated 10 November 1991 reporting continuing heavy shelling of Dubrovnik by JNA.

152. Exhibit P61, tab 22.

153. Exhibit P61, tab 22 (emphasis omitted).

154. Paul Davies, T 588.

155. Paul Davies, T 588. According to Captain Negodic the shelling caused damage to 45 places of worship, T 5259. Ivo Grbic gave evidence that the Lovrijenac fort and private boats in the harbour were also damaged by the attack, T 1352-1354; T 1454. There may have been damage to other buildings. See infra, paras 318-319.

156. Paul Davies, T 589; T 3600.

157. Paul Davies, T 589.

158. Paul Davies, T 591.

159. Exhibit P61, tab 22.

160. Exhibit P61, tab 22.

161. Paul Davies, T 597-598.

162. Paul Davies, T 597.

163. Paul Davies, T 599.

164. Paul Davies, T 600.

165. Paul Davies indicated that he and his team had counted 1000 incoming explosions that day, after which they stopped recording them. Paul Davies, T 607."

"99. Well before sunrise, at around 0550 hours on the morning of 6 December 1991, residents of the Old Town of Dubrovnik awoke to the sound of explosions. An artillery attack had commenced. It continued for most of the day with a brief but not complete lull a little after 1115 hours. Especially in the afternoon, it tended to be somewhat sporadic. Initially, the firing was mainly concentrated on, but not confined to, the area around Mount Srdj, the prominent geographical feature of Dubrovnik located nearly one kilometre to the north of the Old Town. There was a Napoleonic stone fortress, a large stone cross and a communications tower at Srdj.²⁸⁰

100. Zineta Ogresta, residing at Od Sigurate Street 2 in the Old Town, and Mato Valjalo, who was staying with his father-in-law in his apartment in the Old Town on Prijeko Street,²⁸¹ both saw shells falling on the fortress at Mount Srdj around or just after 0600 hours.²⁸² Ivo Vlasica [] saw Srdj on his left where "large-scale shelling had started and a great deal of shooting".²⁸³ The ECMM monitors, who were located at the Hotel Argentina, less than one kilometre to the southeast of the Old Town, maintained a log sheet of events that day.²⁸⁴ The first entry at 0600 hours reads as follows: "Shelling from land and sea towards the fortress close to the TV tower (Srdj) and the harbour commenced." The log indicates that this shelling was still in progress at 0640 hours.²⁸⁵[] At 0612 hours it is recorded that the ECMM lodged the following protest with Admiral Jokic: "We strongly protest against the bombing of several parts of Dubrovnik that started at about 0600 hours on 6 December 1991 and insist on an immediate cessation of fire." A similar protest from the Dubrovnik Crisis Staff is reflected in the next entry and reads as follows: "We strongly protest against the unprovoked strong artillery fire at 0550 hours this morning from the Strincjera and Dubrave areas of the Srdj feature, and tank and mortar fire on Dubrovnik."²⁸⁷

101. There were several people in Nikola Jovics shop at Miha Pracata 11²⁸⁸, which had opened for business as usual that morning around 0600 hours, by the time the shells started falling on the Old Town.²⁸⁹ Nikola Jovic described the scene in his shop that morning:

Ivo Vlasica, from the vantage point of his shop on Od Puca street in the Old Town, first saw a shell landing on the Old Town between 0630 and 0700 hours on the morning of 6 December.²⁹¹ Witness A, who was sheltering in the bathroom of his apartment in the Old Town²⁹² at the time, testified that the shells started to fall "right around the building itself" from 0600 hours onwards. He testified that: "From 0600 oclock practically every second, every other second, a shell would fall in various places within the old walls."²⁹³ The Chamber regards this description of the frequency of the shelling as impressionistic rather than accurate. From the windows in his attic, which looked out onto Stradun,²⁹⁴ Witness A saw construction material falling from the roofs and buildings on the Stradun.²⁹⁵ He described the scene that day as a kind of hell:

At 0710 hours a shell exploded in the attic of Ivo Grbics house at Od Puca 16 in the Old Town. A further shell at 0720 hours caused the attic to catch alight.²⁹⁷

102. The ECMM monitors, located in Hotel Argentina, recorded their first sighting of impacts in the Old Town at 0720 hours. At 0725 hours it is written: "Five impacts in the Old City close to and in the harbour area. Constant artillery and mortar shelling in progress. More impacts in the Old Town". Then at 0732 hours: "Minimum 10 11 impacts in the old city so far."²⁹⁸ The Chamber notes that references in the ECMM log to the Old City are to what the Chamber refers to as the Old Town.

103. As the protests and other evidence records, some shelling occurred on residential areas of Dubrovnik, including the Old Town and on the port of the Old Town, virtually from the outset of the attack, notwithstanding an initial primary concentration on Srdj.

104. At 0800 hours a shell landed in the street directly outside Nikola Jovics shop in the Old Town on Miha Pracata street: "There was a bang and the door opened wide. Shrapnel was flying around the shop. The till was shattered and so was the door. There was a lot of dust in the air and for a while we didnt know where we were."²⁹⁹ Nikola Jovic described the fire he saw when the shell landed:

The entry in the ECMM log sheet at 0845 hours, after recording the initial impacts in the Old Town reads: "Up till now continuous shelling. Several (rounds) impacts fairly close to hotel. Broken windows etc."³⁰¹

105. A compilation of video footage from some 15 domestic and foreign photographers of the events of 6 December 1991 in Dubrovnik was compiled by Mr Benic³⁰² and admitted as an exhibit in this case.³⁰³ Some of the film clips from that day are date stamped and others are time stamped. The impression given is that the editor has sought to maintain chronological order in presenting events, however, there is no guarantee that this was in fact achieved. The video shows military activity, including artillery fire, on and around Srdj between at least 0648 and 0713 hours. Sometime between 0705 hours and 0713 hours that morning, the Dubrovnik defence warning siren sounded.³⁰⁴ The two subsequent clips, neither of which are time-stamped and which bear the logo "SAR", show smoke coming from the Old Town and an explosion in the Old Town (in the vicinity of the Dominican monastery).³⁰⁵ The first time-stamped clip showing smoke coming from the Old Town and recording the sounds of explosions were recorded at 0747 hours.³⁰⁶"

"280. Exhibit C1/1, pp 6 and 8; Exhibit C1/2.

281. Exhibit P54, house marked as 1.

282. Zineta Ogresta, T 3464-3465; Mato Valjalo, T 2000-2001.

283. Ivo Vlasica, T 3321. Colin Kaiser, a UNESCO representative, who was staying in the Old Town at the Institute for the Protection of Cultural Heritage opposite the Dominican Monastery, also testified that, initially, the explosions appeared to be coming from the direction of Mount Srdj. Colin Kaiser, T 2430-2432. Ivo Grbic who lived at Od Puca 16 in the Old Town, having been awoken at 05:50 hours stole a glance from his window towards Mount Srdj where he observed "constant explosions and thick smoke rising". Ivo Grbic, T 1357-1359.

284. Exhibit P61, tab 30.

285. Exhibit P61, tab 30."

287. Exhibit P162, pp 10-11.

288. Nikola Jovic, T 2926.

289. Nikola Jovic, T 2932-2933.

290. Nikola Jovic, T 2934-2935.

291. Ivo Vlasica, T 3310; 3321.

292. Witness A, T 3624-3626.

293. Witness A, T 3626-3627.

294. Witness A, T 3625.

295. Witness A, T 3627.

296. Witness A, T 3627.

297. Ivo Grbic, T 1360-1361.

298. Exhibit P61, tab 30.

299. Nikola Jovic, T 2936-2937.

300. Nikola Jovic, T 2938.

301. Exhibit P61, tab 30.

302. Ivo Grbic, T 1422-1423. Mr Benic was a journalist from the Dubrovnik Television.

303. Exhibit P66.

304. The siren can be heard clearly in the clip time-stamped 0713 hours, but not in the previous clip time-stamped 0705 hours. See Exhibit P66 at 31.01 minutes. See also, Exhibit D108.

305. Exhibit P66 at 31.14 and 31. 16 minutes.

306. Exhibit P66 at 31.20 minutes."

P.4. Evidence of fireing a single combat weapon.

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."

P.5. Evidence of setting building on fire.

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.806:

"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. [] The HVO attacked Svinjarevo on 18 April 1993. The mosque was burnt down and about 100 houses were destroyed. Only two houses remained intact and these were Croat houses .¹⁷²⁰ [] The Han Ploca mosque was set on fire first and then the houses.¹⁷²⁷"

"1720. Witness TW13, T. 9696, 9701-02 (acording to Witness TW13, one house remained intact); Witness AM, T. 15586.

[]

1727. Witness TW08, T. 9003."

B. Evidentiary comment:

The above case is about a building, which does not fall within the buildings protected by this article, however it is evidence of an attack.

P.6. Evidence of bombing.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para.656:

"(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"

"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."

B. Evidentiary comment:

The above case is about a building, which does not fall within the buildings protectde by this article, however it is evidence of an attack.

P.7. Evidence of missile attacks.

A. Legal source/authority and evidence:

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

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

"173. Paul Davies, T 607.

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

175. Captain Nesic, T 8158.

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

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

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para.643:

"(i) Banja Luka

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:

The above case is about a building, which does not fall within the buildings protectde by this article, however it is evidence of an attack.

3.1.2. Evidence of the target of attack being one or more towns, villages, dwellings or buildings.

P.8. Evidence of damage to civilian objects.

A. Legal source/authority and evidence:

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, paras.65, 280, 316, 318 319, 326:

65. On 13 November 1991, the ECMM monitors reported only "sporadic shooting in the morning" with the situation quietening down as from 1200 hours.¹⁶⁶ Paul Davies testified that he was able to visit the Old Town briefly on that day and see the damage. His evidence was that there had been:

"166. Exhibit P61, tab 22.

167. Paul Davies, T 606."

"280. [] Further, the Appeals Chamber confirmed that criminal responsibility for unlawful attacks requires the proof of a result, namely of the death of or injury to civilians, or damage to civilian objects.⁸⁹⁷ With respect to the scale of the damage required, the Appeals Chamber, while not discussing the issue in detail, appeared to endorse previous jurisprudence that damage to civilian objects be extensive.⁸⁹⁸ In the present case however, in light of the extensiveness of the damage found to have been caused, the Chamber finds no need to elaborate further on the issue and will proceed on the basis that if extensive damage is required, it has been established in fact in this case."

"316. In general terms, the Chambers findings on these Counts are based on the evidence which it has accepted of citizens of Dubrovnik⁹⁶⁸ or persons visiting the Old Town during or immediately after the attack,⁹⁶⁹ and evidence such as that of a monitor from the ECMM, Per Hvalkof, who walked around in the Old Town on the day after the attack and described the town as "horrible" looking and "very badly damaged"; he thought the Old Town looked like a "missile garbage lot".⁹⁷⁰ In reaching its finding the Chamber has also relied on video evidence⁹⁷¹ and various reports compiled after the attack, and has been assisted by its site visit.⁹⁷² The Chamber has also relied on this evidence in the determination of how many, and exactly which, buildings and structures were damaged during the 6 December shelling of the Old Town."

"968. Lucijana Peko, T 1966-1967; Zineta Ogresta, T 3475; Witness A, T 3636; Nikola Jovic, T 2952, 2964-2965; Slavko Grubisic, T 1045; Slobodan Vukovic, T 5826-5829.

969. Dordje Ciganovic, T 2734-2735 ; Lars Brolund, T 879-881; Per Hvalkof, T 2208, 2214; Minister Rudolf, T 5619; Colin Kaiser, T 2435-2436.

970. Per Hvalkof, T 2214, T 2208.

971. Exhibit P66 at 34:51-37:00; 37:38-37:53; Exhibit P145 at 00:08-21:15; Exhibit P78 at 13:40-43:29.

972. Exhibit P164 describes the damage as "significant", p 2; Exhibit P63/6 "Houses were smoking, rubble was everywhere and the streets were dangerous as broken tiles were being thrown down from the roofs and cornices and bits of roof threatened to fall off, though this did not prevent anyone from passing by anyway [] the people of Dubrovnik [] stared at the damage in astonishment.", p 32; Exhibit C1/1, pp 16-23."

"318. The Chamber finds that of the 116 buildings and structures it listed in the Annex to its Rule 98bis Decision, 52 were destroyed or damaged during the 6 December shelling of the Old Town by the JNA. The Chambers findings in relation to these 52 buildings and structures are included in an Annex attached to this Judgment, and the evidence upon which the Chamber has relied in making these findings is referenced therein.⁹⁷⁴ The Chamber will set out below why it cannot be satisfied to the required standard that the other 64 buildings and structures of the 116, and the additional building (C 1), were destroyed or damaged in that attack. The Chamber emphasises that the list of 52 should not be understood as representing an exhaustive list of the buildings and structures damaged during the 6 December 1991 JNA attack. The Chamber has necessarily had to confine its findings to those buildings listed in the Indictment and which remained listed in the Annex to the Rule 98bis Decision. In particular, it was not always possible to relate evidence of damage to the buildings listed therein.

319. The nature and extent of the damage to the 52 buildings and structures from the 6 December 1991 attack varied considerably as is apparent from the evidence identified in the footnotes in the Annex. It is unnecessary to attempt to detail all of the damage in this decision. The most seriously affected were six buildings which were completely destroyed, i.e. burned out, on 6 December 1991.⁹⁷⁵ Several of the 52 buildings and structures had sustained some degree of damage from earlier shelling in October and November.⁹⁷⁶ This earlier damage has been identified by the Chamber so that it is not attributed to the 6 December 1991 attack. In the result, from its analysis of the damage, the Chamber is satisfied that the previously damaged buildings sustained further and significant damage during the 6 December attack."

"974. See Annex I. The Chamber has retained both the sequential numbers, corresponding to the original 450 buildings and structures as they appear in Schedule II to the Indictment, and the sequential numbers (A1-A96 and B1-B20) given in the course of the Rule 98 bis Decision, for the purposes of identification.

975. See Annex I Nos: J9, J10, J11, J20, J21 and J26. For the Chambers position on the Defence argument that five out of the six burnt buildings were owned "by persons from Serbia or Montenegro " (Defence Final Brief, para 518), see supra paras 180-181.

976. Amongst the structures which sustained damage during the October and November shelling of the Old Town were the Franciscan monastery, Sponza Palace and the city port. See supra, paras 50 and 62."

"326. In relation to Count 4 specifically, the Chamber finds that the Old Town sustained damage on a large scale as a result of the 6 December 1991 JNA attack. In this regard, the Chamber has considered the following factors: that 52 individually identifiable buildings and structures were destroyed or damaged; that the damaged or destroyed buildings and structures were located throughout the Old Town and included the ramparts surrounding it; that a large number of damaged houses bordered the main central axis of the Old Town, the Stradun, which itself was damaged, or were in the immediate vicinity thereof; and finally, that overall the damage varied from totally destroyed, i.e. burned out, buildings to more minor damage to parts of buildings and structures.

Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, para. 244, 499:

"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. []"

"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."

"499. [] Consequently, on 30 December 1992, Harding decided to conduct a battle damage assessment of the hospital in order to identify how the damage caused by shelling affected the hospitals operations.¹⁷¹¹ He found that the hospital had been hit by artillery, anti-aircraft artillery (AAA) and possibly tank fire. The third floor had received several direct hits by 122mm artillery and 40mm AAA. One room in the intensive care unit had also been directly hit and damaged beyond repair by 20, 40 and 82 mm shells fired from a north-easternly direction.¹⁷¹²"

"1711 - P3660 (Battle damage assessment of Koevo Hospital dated January 1993 by Carl Harding). Harding also reviewed the damage caused to the State Hospital on the next day, Harding, T. 4338 . See P3661.

1712 - P3660 (Battle damage assessment of Koevo Hospital dated January 1993 by Carl Harding). As a result of the shelling, the whole casualty reception building was poorly heated and in certain parts, the temperature did not rise above 5?C; the building also lacked electricity and running water."

Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 804:

"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 The recording started south of Kiseljak by showing the village of Tulica where most of the roofs have disappeared from the houses. In Kiseljak the minaret of the mosque has disappeared. The helicopter then travelled north, up the valley, over Visnjica, where almost all the houses were gutted; Polje Visnjica, with intact Croat houses among the destroyed houses; Hercezi, with a destroyed mosque; Behrici, where almost all the houses were destroyed; Gomionica, where the destruction is almost total; Svinjarevo, with a damaged mosque. Throughout there were scenes of totally destroyed houses with their roofs off or gutted houses with roofs on, but windows blackened. All this is in countryside which is wooded, green and mountainous. The helicopter then travelled up the "Kacuni corridor", south-east of Busovaca (held by the ABiH during the war), passing over Ocehnici where the destruction was clear; Busovac a itself, where some destruction was visible; Strane and Merdani in the Lasva Valley where there was clear destruction; and then up the Vitez-Busovaca road 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. Houses were being rebuilt in [antici and Pirici. The helicopter then travelled over Gacice, Veceriska and Stari Vitez, which show extensive destruction."

"1707 - Ex. Z2799.

1708 - Lt. Col. Jean-Pierre Capelle, T. 13308-43."

Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 180:

"180. [] the Trial Chamber deems that the attack must have caused [] damage to civilian property."

B. Evidentiary comment:

The ICTY jurisprudence requires evidence of damage to civilian (protected) objects resulting from the attack (although in Strugar it left open the question of whether that damage had to be extensive):

P.9. Evidence of presence of military units or artillery capable of carrying out such an attack.

A. Legal source/authority and evidence:

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, paras. 90 91:

"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 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. [] 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 Zarkovica."

"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."

P.10. Not required: Evidence of attacker being first offender.

A. Legal source/authority and evidence:

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 282:

"282. Pursuant to Article 49(1) of Additional Protocol I to the Geneva Conventions "attacks" are acts of violence against the adversary, whether in offence or in defence. According to the ICRC C an attack is understood as a "combat action" and refers to the use of armed force to carry out a military operation at the beginning or during the course of armed conflict.⁹⁰³[]"

"903. ICRC Commentary on the Additional Protocols, p 603. See also Kordić Appeals Judgment, para 47."

Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 47:

"47. The term attack is defined in Article 49 of Additional Protocol I as "acts of violence against the adversary, whether in offence or in defence".⁴⁹ Therefore, in determining whether an unlawful attack on civilians occurred, the issue of who first made use of force is irrelevant."

"49. This definition applies to the crime of unlawful attacks against civilian objects as well."

P.11. Not required: Evidence of actual damage.

A. Evidentiary comment:

Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary (2003), p. 153:

"As for all war crimes involving certain unlawful attacks, the PrepCom discussed rather intensively whether this war crime requires actual damage to personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission as a result. [] For the crime to be committed it would be sufficient that, for example, an attack was launched against any of the objectives mentioned in this crime, even though, due to the failure of the weapon system, the intended target was not hit".

P.12. Not included: Evidence of attack of religious institutions etc.

A. Legal source/authority and evidence:

Prosecutor v. Miroslac Deronjić, Case No. IT-02-61, Judgement (TC), 30 March 2004, para. 122:

"122. The destruction of an institution dedicated to religion is not listed under Article 5 of the Statute, but it was held in Stakic that "the seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science", a crime punishable under Article 3 (d) of the Statute, when perpetrated with the requisite discriminatory intent, amounts to Persecutions.^252"

252. Stakic Trial Judgment, paras 765-768.

B. Evidentiary comment:

While the Articles are numbered differently, religious institutions are protected in the ICC statute at articles 8(2)(e)(iv) and 8(2)(b)(ix).