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 » 6.a [Mental element for Element 3] [Conduct of attacking:] The perpetrator meant to attack one or more towns, villages, dwellings or buildings.

Element:

6.a [Mental element for Element 3] [Conduct of attacking:] The perpetrator meant to attack one or more towns, villages, dwellings or buildings.

P.24. Evidence inferred from an utterance, a document, or a deed.

P.24.1. Evidence inferred from the perpetrator ordering the attack.

A. Legal source/authority and evidence:

Prosecutor v. Miroslac Deronjić, Case No. IT-02-61, Judgement (TC), 30 March 2004, paras. 87-88:

"87. On the evening of 8 May 1992 at the session of the Crisis Staff, Miroslav Deronjic, in his capacity as President of the Crisis Staff of Bratunac, gave the order to the Bratunac TO, including the police forces in Bratunac,¹⁸⁴ to attack the village of Glogova, burn part of it down, and forcibly displace its Bosnian Muslim residents. Miroslav Deronjic was aware on 8 May 1992 that he was ordering the attack on an undefended and disarmed village.¹⁸⁵ However, since the Accused was unable to command the JNA units, he only asked them whether they would participate in this.¹⁸⁶ He asked Reljic to take an active role rather than simply observing the attack.¹⁸⁷ Captain Reljic informed the Crisis Staff that the JNA unit would also participate in the operation.¹⁸⁸ Additionally, one of the deputies who was present there said: "Yes, the army will participate, Mr. Deronjic".¹⁸⁹"

88. Furthermore, the Bratunac Crisis Staff debated the issue of burning Glogova. Miroslav Deronjic said that while it was impossible to forecast the events in Glogova, some houses should be set on fire as a warning to the Muslims in order to spread panic and fear among them and part of the houses should be preserved for refugees. Miroslav Deronjic also said that if fighting erupted, he did not care what happened to the houses.190

184. Deronjic Testimony, T. 144.

185. Indictment, paras 29.

186. Deronjic Testimony, T. 144.

187. Ibid., T. 146, 148.

188. Factual Basis, para. 35; Deronjic Testimony, T. 144.

189. Deronjic Testimony, T. 148.

190 Factual Basis, para. 34.

P.24.2. Evidence inferred from expressing a lack of interest in protecting civilian property.

A. Legal source/authority and evidence:

Prosecutor v. Miroslac Deronjić, Case No. IT-02-61, Judgement (TC), 30 March 2004, para. 88:

190. Factual Basis, para. 34.

P.24.3. Evidenec inferred from acting out of revenge.

A. Legal source/authority and evidence:

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

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

"514. Colm Doyle, T 1716.

515. See infra, paras 166 -167."

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

523. Colm Doyle, T 1715-1716.

524. Colm Doyle, T 1714.

525. Colm Doyle, T 1716.

526. Colm Doyle, T 1759-1761.

527. Colm Doyle, T 1716-1717.

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

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

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

P.24.4. Evidence inferred from a confession.

A. Legal source/authority and evidence:

Prosecutor v. Miroslac Deronjić, Case No. IT-02-61, Judgement (TC), 30 March 2004, para. 90:

"90. The attack on Glogova was a joint operation. The attacking forces were comprised of members of the JNA (Reljic's unit), the Bratunac TO, the Bratunac police, and paramilitary "volunteers" from Serbia (hereinafter "attacking forces"). Miroslav Deronjic confessed that he co-ordinated and monitored the attack on Glogova.¹⁹³ However, during the Sentencing Hearing, he claimed that he did not know that the "volunteers" would participate in this action in Glogova.^194"

193. Factual Basis, para. 36; Deronjic Testimony, T. 159-60.

194. Deronjic Testimony, T. 145.

P.24.5. Evidence inferred from meetings held in planning of or preparation for the attack.

A. Legal source/authority and evidence:

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, paras. 85 86, 90 91:

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

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

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

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

244. Admiral Jokic, T 3840; 3980.

245. See infra, paras 384- 385."

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

"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.

91. In the Chambers view, the content of this discussion is significant. First, it offers clear support for the veracity of the evidence that Captain Kova~evi} had earlier attended a meeting at Kupari at which the commanders of the Cilipi howitzer battery and of the 3/5 mtbr were present and the battle plan for the taking of Sr| the next day was put in place. Secondly, as the Cilipi howitzer battery and the 3/5 mtbr were not under Captain Kovacevics command, the involvement of those units demonstrates that the plan for the attack, and its implementation, involved coordinated planning at a higher level than the 3/472 mtbr. In this case the other units were each subject to the command of the 9 VPS, Admiral Joki}, and, at the next level, of the 2 OG, so the attack plan was consistent with the involvement of those two commands, or, at least, with the involvement of the command of the 9 VPS. Thirdly, it demonstrates the significance of artillery support for an attack such as this. The need for it was immediately a concern of those who were to actually lead the ground assault troops, and had been anticipated by those planning the attack at a higher level. The plan provided for the use of quite a formidable artillery capacity. In addition to the smaller 82mm mortars attached to each company of the 3/472 mtbr, there were two 120mm mortar companies, the anti-armour company at Zarkovica with an array of weapons, including recoilless cannons and Maljutka rockets, ZIS cannons and the heavy 130mm howitzer cannons at Cilipi. With limited exceptions, all of these had the capacity to fire at the wider Dubrovnik including Srd 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 Srd and the Old Town from Zarkovica.

P.25. Evidence inferred from a circumstance.