Table of contents:
3. The perpetrator directed an attack.
P.1. Evidence of attack occurring
P.2. Evidence with regard to the identity of the perpetrator.
P.3. P.1. Evidence with regard to the source of the attack.
P.3.1. Evidence with regard to direction of attack.
P.3.2. Evidence of military presence in a particular area from which the attack was directed.
Element:
3. The perpetrator directed an attack.
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 Kordic Appeals Judgement, para 47."
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement (AC), 17 December 2004, 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."
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Decision on Defence Motion Requesting Judgement of Acquittal Pursuant to Rule 98bis (TC), 21 June 2004, paras. 49-50:
"49. The Accused is charged with participation in the crime of attacks on civilians, a violation of the laws or customs of war, as recognised by Article 51 of Additional Protocol I and Article 13 of Additional Protocol II. The Prosecution alleges that, even assuming that military objectives were present in the Old Town, in any event, civilian losses in human lives and property caused by the attack were excessive in relation to the concrete and direct military advantage anticipated.70
50. Pursuant to the Tribunal’s case-law, the crime of attacks on civilians is, as to the actus reus, an attack launched against a civilian population that caused deaths and/or serious bodily injury within that population,71 which, as to the mens rea, must have been conducted "intentionally in the knowledge, or when it was impossible not to know, that civilians were being targeted ".72 The presence of certain non- civilians among the targeted population does not change the character of that population. It must be of a "predominantly civilian nature".73 The following attacks are, among others, prohibited by Article 51: attacks the object of which is "the civilian population as such, as well as individual civilians" (§ 2); indiscriminate attacks, such as those which "are of a nature to strike military objectives and civilians or civilian objects without distinction" (§ 4) and those which "may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated" (§ 5 (b))."
"70. The Prosecution opening statement, T. 263-7.
71. See Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-T, Judgement, 3 March 2000 (hereinafter "Blaskic Trial Judgment"), para. 180, Prosecutor v. Dario Kordic and Mario Cerkez, Case No. IT-95-14/2-T, Judgement, 26 February 2001 (hereinafter "Kordic Trial Judgement"), para. 328 and Prosecutor v. Stanislav Galic, Case No. IT-98-29-T, Judgement, 5 December 2003 (hereinafter "Galic Trial Judgment"), para. 62.
72. See Blaskic Trial Judgement, para. 180. In the Blaskic and Kordic Trial Judgements an additional condition is mentioned, that the attack was launched not through military necessity (Ibid.). The Trial Chamber in the Galic case observed, however, that Article 51 (2) of Additional Protocol I states in clear language that civilians and the civilian population as such should not be the object of attack and does not mention any exceptions, in particular that provision does not contemplate derogating from that rule by invoking military necessity (Ibid., para. 44).
73. See Prosecutor v. Dusko Tadic, Case No. IT-94-1-T, Judgement, 7 May 1997 (hereinafter "Tadic Trial Judgement"), para. 638 and Blaskic Trial Judgement, para. 214."
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."
ICRC Commentay on the Additional Protocol I, para. 3477:
"‘Sub-paragraph’ (b) [art. 85(3)(b)]
3477 This sub-paragraph is based on the same provisions as the preceding subparagraph, and in addition on Article 52 (General protection of civilian objects), ‘which defines and generally protects civilian objects. The attacks concerned here are not those directly aimed at the civilian population or individual civilians, but attacks affecting the incidentally; "indiscriminate attacks" are defined and prohibited by Article 51 (Protection of the civilian population),’ paragraphs 4 and 5."
''451. Article 49 of Additional Protocol I defines “attacks” as “acts of violence against the adversary, whether in offence or defence”. Accordingly, the issue of who made use of force first is irrelevant.''
P.1. Evidence of attack occurring
A. Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, paras. 100, 103:
"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
"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."
Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, para. 463:
"463. The Trial Chamber finds that a projectile exploded in Markale market on 5 February 1994 between 12:00-12:30 hours. […] Both the local and UN investigation teams concluded, after having inspected the tail fin, the recovered shrapnel, and the traces left on the ground (as reflected in the Sabljica Ballistic Report, the Zecevic Ballistic Report, and the UN Report) that the explosion at Markale market was caused by a 120 mm mortar shell which exploded upon contact with the ground."
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, paras. 184, 524-525:
"184. The Trial Chamber finds that in the context of the present case, sniping must be understood as direct targeting of individuals at a distance using any type of small calibre weapon."
"524. The Trial Chamber heard testimonies from witnesses from Sarajevo who visited or knew about civilian casualties in the area of Sedrenik and who testified that the people living there were subjected to regular small-arms fire.[…]
525. United Nations representatives also testified that civilians in Sedrenik were subjected to small-arms fire during the Indictment Period."
[B. Evidentiary comment:]
P.2. Evidence with regard to the identity of the perpetrator.
A. Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 284:
"284. The Chamber has already found that on 6 December 1991 there was an attack launched by the JNA forces against the Old Town of Dubrovnik.909 It is also the finding of the Chamber, as recorded earlier, that there were no military objectives within the Old Town and the attack was not launched or maintained in the belief that there were.910"
"909. See supra, paras 99-119 ; 121-145.
910. See supra, paras 193- 194."
P.3. P.1. Evidence with regard to the source of the attack.
P.3.1. Evidence with regard to direction of attack.
A. Legal source/authority and evidence:
Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, paras. 257, 264, 270, 454, 466-491, 516, 535, 554:
"257. Considering the location of the tram when it was hit and that it was impacted on the left-hand side in the direction it was travelling, the fact that there was an unobstructed line of sight between the site of the event and the area of the Jewish Cemetery under the SRK control, the approximate distance between these two areas, lead the Trial Chamber to find that the only reasonable conclusion is that the shot which struck the tram was fired from this area held by the SRK."
"264. From the orientation of the bus and of the bullet marks, Ashton concluded that the gunfire originated from the area above the sports stadium in Grbavica.666"
"666. Ashton, T. 1384, 1386. The witness marked direction of fire on a map (P 3645)."
"270. The Trial Chamber considers that the absence of more detailed medical documentation or technical information on the point of entry of the bullet into the bodies of the victims is not crucial for determining the source of fire. Witness J, a police officer from the Novo Sarajevo Public Security Station who conducted an on-site investigation of the event,699 concluded that the shot had been fired from the SRK positions on Ozrenska Street.700 He based his conclusion not only on the common knowledge that snipers operated in that area,701 but also on the fact that the police was unable to immediately access the site of the incident because of on-going shooting from those positions.702 Nafa Taric recalled speaking to five people at the hospital where she was taken who had been injured by sniper fire originating in the area of Ozrenska Street within an hour of the incident in which she and her daughter were wounded.703 DP10 and DP16 testified that the site of the incident was not fully visible from SRK positions in Ozrenska Street.704 However, visual evidence presented to the Trial Chamber demonstrates that there was an unobstructed line of sight from SRK positions on Hrasno Brdo to the location of the incident.705 Taking this into account, the only reasonable inference is that Nafa and Elma Taric were injured by a shot fired from this area.
699. Witness J, T. 8057; D107 (Official report of the 4th Hrasno Police Station) (under seal). He found no bullet fragments at the scene. T. 8057.
700. D107 (Official report of the 4th Hrasno Police Station) (under seal). Hinchliffe took a laser range finder reading of the distance from the area of Tagolavska road, where he saw trenches and which he suspects was the area of the source of fire, to the spot where the victims were wounded to be 700 metres, Hincliffe, T. 12979-81.
701. Witness J, T. 8084.
702. Witness J, T. 8084.
703. Nafa Taric, T. 3195-8.
704. Witness DP10 said that the street where the incident occurred was only partially visible from the SRK positions, since a white building obstructed the line of sight. However, later in his testimony, he admitted that a line of sight did exist, although he said that the part of the intersection that was visible was in fact sheltered by screens, Witness DP10, T. 14373, 14397, 14411-5. Witness DP16 testified that the site of the incident was not visible from SRK lines, Witness DP16, T. 16576.
705. See photograph No. 1 of P3268 (set of photographs of site of incident); P3280I (videotape); P3279H (360 degree photograph of the location of scheduled sniping incident 10).
"454. Weapon specialists indicated that the noise made by the firing of a mortar can be used to determine the approximate direction of fire.1647 Hamill testified that an observer hearing the sound of a mortar being fired "will not [be able] to determine a location, just [a] direction."1648"
1647. Hamill, T. 6193-4; Kovacs, T. 11482-4; P3734 (Shelling report of Richard Higgs dated 12 February 2002).
1648. Hamill, T. 6193-4.
"ii. Range of Fire Related to the Angle of Descent
466. Following a variety of methods, several investigators and experts drew conclusions on the angle of descent of the mortar shell. By measurement and reconstruction of the impact site, and by interpretation of the shrapnel’s impact pattern, most experts were led to the conclusion that the angle of descent was close to 60 degrees.1676
467. The method of repositioning the tail fin in the tunnel and measurements on the tunnel after extraction of the tail fin have been challenged by Vilicic as unreliable. The Majority accepts that the removal of the tail-fin may have caused some disturbance to the shape of the tunnel. However, the shrapnel imprints recognized by experts as typical for an angle of descent of approximately 60 degrees, as well as the range calculated by Vilicic (55.6 to 62.5 degrees) based on measurements of the elliptical imprints by Sabljica, were not influenced by the disturbance of the tunnel and were consonant with the measurements performed by Zecevic, using a quadrant after having replaced the tailfin. The Majority notes that Zecevic has shown awareness of the possible disturbance of the tunnel and has testified that the lower part of the tunnel was relatively well preserved.
468. In its conclusions, the UN report rejected the measurements of the shell’s angle of descent (about 80 degrees) made on 5 February 1994 by Verdy who made a mathematical error, ignored the measures made by Russell (68-73 degrees) on the same day, and gives a range of 950 to 1,100 mils (53.4 to 61.9 degrees), which the report emphasised was determined on 11 February 1994.1677 The Majority understands that the UN Report endorsed the findings made by Khan and Hamill although it cautioned that on the basis of the condition of the crater it was not possible to estimate with any "acceptable degree of accuracy" the angle of descent. On this basis, the Majority rejects the measures of the shell’s angle of descent made by Verdy and Russell and accepts the range determined by Khan and Hamill, which is consistent with the results obtained from calculations based on measurements of earlier investigations.
469. The certain lower limit of the angle of descent is approximately 50 degrees, since at a lesser angle the shell would have collided with the surrounding buildings. On the basis of the evidence presented, the Majority finds that the shell’s angle of descent was approximately 60 degrees. Allowing for a margin of error of 5 degrees, the Majority finds that the angle of descent was not greater than 65 degrees.
470. The Defence claims that an exact angle of descent should be measured in order to determine whether the shell was fired from ABiH- or SRK-controlled territory. The Majority rejects this claim. Every measurement is by its very nature a measurement within a range. The more precise the measurement, the smaller the margin of error. The Majority considers that its finding as to the angle of decent are based not on one measurement method but on calculations based on the measurement of elliptical imprints, the interpretation of the shrapnel pattern by experts, and on other methods reviewed above. The Majority has also taken into consideration that measurements of a lesser precision were already adjusted to reflect the margin of error.
471. The UN report gives a range of 300 to 5,551 meters as the horizontal distance over which the mortar shell could have travelled. This stated range covers all possible angles of firing and charges.
472. The Majority accepts that from the angle of descent alone it is not possible to calculate the distance a shell travelled.1678 The number of charges (1 to 6) used in addition to the initial (0) charge progressively increase the distance a shell travels.1679
473. Thus a 120 mm mortar shell fired across a level field at an 0+1 charge at a steep angle (85?) and also landing at a steep angle (85.3 degrees) travels horizontally no more than 275 metres, whereas the same shell fired at an 0+6 charge at the same launch angle (85 degrees) and a similar angle of descent (86.2 degrees) travels more than 1,160 metres. If fired at a low angle (45 degrees) with a 0+1 charge the shell travels horizontally no more than 1,574 metres (and lands at around 47.3 degrees ), whereas the same shell fired at an 0+6 charge travels more than 6,400 meters (landing at around 55.6 degrees).1680
474. It was not until the trial stage that both Prosecution and Defence experts introduced into their analyses the relation between the tail-fin’s penetration into the ground of the market and the speed of the projectile at impact, an element ignored until then by any investigator or expert.
475. The experts’ reasoning is based upon the following. The depth of penetration of the tail-fin is indicative of the velocity of the shell upon impact. This velocity is of course related to the velocity of the shell at the moment it was fired1681. The velocity at firing depends on the number of increment charges used. As indicated above, the greater the velocity, the greater the distance travelled, where the shell’s launch angle is kept constant.
476. The mortar shell used in this case exploded on impact. The experts for both parties agree that the explosion creates a backwards thrust against the tail-fin. If the velocity of the shell, and therefore of the tail-fin, on impact had been 150 m/sec (taking the lowest figure presented to the Trial Chamber), the tail-fin would have just fallen to the ground. If the impact velocity was lesser, the tail -fin would have been propelled backwards. If the impact velocity had been greater, the tail-fin would have overcome the backwards thrust and continued forward.
477. In the present case, the tail-fin continued its trajectory in the forward direction at a speed reduced by 150 m/sec, but still sufficient to embed itself in the ground.1682
478. Zecevic estimated that the impact velocity of the shell must have been greater than 200 m/s for the tail-fin to have embedded itself at the depth he measured. In Zecevic’s opinion, such a velocity can only be achieved by a shell fired at a 0+4 charge or more. At an angle of descent of 65? the shell would have travelled more than 4.5 kilometres on an 0+4 charge. (As the Majority will explain below, even if, by taking the most favourable figures, an impact speed greater than 200 m/s could be achieved by the lower charge 0 + 3, this does not change the final conclusion.)
479. The Majority pauses here to note that Markale market is at an altitude of approximately 550 metres.1683 The confrontation line to the north-east of the market was at an altitude of some 400 metres higher. Continuing in the same direction past the confrontation line, the ground further rose to reach heights of up to 500 to 650 metres above the market at around 2-2. 5 kilometres past the line.
480. As discussed above, Vilicic at first stated that for the tail-fin to embed itself at the depth measured by Zecevic, the shell would have needed an impact velocity of 528.8 m/sec. This speed cannot be achieved by any known mortar. Vilicic based this calculation on the assumption that the ground of impact was of solid concrete for the entire depth of the tail-fin’s penetration. Confronted with evidence that the market had a top layer of 2 centimetres of asphalt resting on soil consisting of sand and stones,1684 Vilicic then reviewed his calculations and concluded that penetration of 20 cm by the tail -fin would require an impact velocity for the shell of 268.4 m/sec. A 120 mm mortar shell can achieve a speed of approximately 260 m/s if fired at an 0+6 charge and if the altitude of the impact site is 500 metres below the position from which the shell was fired.1685
481. In brief, both experts, basing themselves on a drop angle of 55 to 65 degrees, concluded that an 0+4 or greater charge would be required to attain the impact velocity necessary for the tail-fin to penetrate the ground to the extent it did. At the 65 degrees angle of descent (which is, according to the Majority, the maximum conceivable angle on the evidence), tables provided by both experts show that the horizontal distance the shell would have travelled comes close to 6,000 metres at charge 0+6 and more than 4,500 meters at charge 0+4.1686
482. It follows that the shell which exploded in Markale market travelled a distance considerably greater than 2,600 metres from the north-east direction, placing the position from which the shell was fired well within SRK-controlled territory.
483. Noting however that the Defence disputes the measure of the depth of penetration of the tail-fin in the ground, submitting that an error in that measure could lead to serious miscalculation of the range of fire, the Majority, out of an abundance of caution, will consider the possibility that the tail-fin penetrated the soil to a lesser depth than the one found by Zecevic and that the shell was fired with an 0+3 increment charge, and therefore that the shell travelled a shorter distance than the one determined above.
484. The Majority recalls briefly that on the day of the incident, Sabljica and Cavcic did not measure the depth of penetration of the tail-fin in the ground but measured a 9-centimetre deep crater. The day after the incident, Zecevic and his colleagues measured the depth of penetration of the tail-fin in the ground from the top asphalt layer to the bottom of the tunnel where the tail-fin had been embedded to be 200 to 250 mm, depending on the side of the hole measured. The UN representatives did not measure the depth of penetration of the tail-fin in the ground giving the reason that such a measurement should have been taken right after the tail-fin was removed from the ground of Markale market. However, Dubant noticed that during his crater examination conducted on 11 February 1994, the crater was still sharply defined and was 11 centimetres deep. There is no evidence in the Trial Record which casts doubt on the measurements made by the local investigative teams. The Majority is convinced that the crater caused by the explosion was approximately 9 centimetres deep and that the depth of the tunnel of the tail-fin and the depth of the crater were together 200-250 mm.
485. The Majority will allow that the shell which struck Markale market impacted on ground consisting of a mixture of soil and stones, thus ignoring the force that would have been required to overcome the higher level of resistance presented by a top layer of asphalt. This favours the Defence case. The Majority also uses the most conservative measurement of the depth of the tail-fin’s penetration, taking the length to be 10 cm. This, again, favours the Defence case.
486. To penetrate 10 cm of ground consisting of soil and stones, the tail-fin would need a post-explosion velocity of 57 m/sec.1687 This gives a shell impact velocity of 150+57=207 m/sec.
487. The firing velocity of a shell on an 0+3 charge is 211 m/s1688. The Majority understands from the evidence of the experts that the impact velocity of a shell fired over a level field is slightly less than its velocity at firing. A shell fired at the 0+3 charge will lose about 30 m/s of its velocity between firing and impact. However, where the altitude of the impact site is less than that of the firing site, the shell will also gain about 30 m/s from having a longer drop trajectory. As always, in choosing these figures1689 the Majority has interpreted the evidence in a fashion favourable to the Defence case.
488. A shell on an 0+3 charge fired over the height differential applicable in this case would have an impact velocity of around 211 m/s. This would be just sufficient for the tail-fin to embed itself to the stipulated depth. But it would also mean that, at a drop angle of 65 degrees, and taking into account a difference in altitude of 400 metres, the shell would have still travelled about 3.6 km from its point of origin to its point of impact. Once again, this places the point of origin well within SRK-controlled territory.
489. This further consideration assures the Majority that the experts’ findings are buffered by a large margin of safety. There is no doubt that, given the characteristics of the remains of the explosion of the 120 mm mortar shell at Markale market, the shell could not have been fired from any place on the ABiH side of the confrontation lines in a direction north-northeast of Markale market.
490. Finally, the Majority notes that a shell fired at the 0+2 charge1690 could not attain the required velocity over the given height differential for its tail-fin to penetrate the surface of Markale market to the measured extent.
iii. Non-technical Evidence in relation to the Source of Fire
491. The Majority also emphasises that non-technical evidence supports the finding that a heavy weapon was fired from the direction north-northeast of Markale market from SRK-controlled territory at the time of the incident. The Trial Chamber finds reliable the testimony of Witness AF who heard at the time of the incident the sound of a heavy weapon being fired from behind an SRK position, Spicasta Stijena, at Mrkovici. The fact that Witness AF was at his mother’s house in Sedrenik when he heard that sound and not at his place in Vratnik does not cast doubt on his ability to assert a direction. The Majority is convinced by the evidence in the Trial Record, which establishes that the noise made by a firing mortar can be used to determine the approximate direction of fire."
"1676. Khan, 56-62 degrees, Hamill, 53-62 degrees; Zecevic Ballistic Report, 55-65 degrees; Vilicic Shelling Report, 55,6-62,5 degrees.
1677. The Majority notes that the UN report does not include the statement of Russell (the statements of the Frebat team, Verdy, Khan, Hamill, Grande and Dubant are included) and gives no reason for that ommission.
1678. It appears from the tables of fire attached to Vilicic Report that angles of descent are in some relation with angles of firing. In fact, decreasing the firing angle by one degree when closer to 90 degrees results in far greater distance gained than decreasing the firing angle by one degree when closer to 45 degrees. Therefore, upward changes of the firing angle in the area considered (between 50 and 65 degrees) increase the traveling distance much less than similar changes around the firing angle of 85 degrees.
1679. If the angle of firing remains unchanged.
1680. Table 2 in Vilicic Shelling Report.
1681. That a higher velocity at firing results in a higher velocity at impact is not only a fact of common knowledge but also clearly illustrated in Table 2 in Vilicic Shelling Report.
1682. The tail-fin of the mortar shell was found embedded in the ground; the UN team used a knife to remove the tail-fin from the ground. See the evidence above in relation to investigation by the UN and the local investigative team.
1683. Vilicic testified that the altitude of the Markale market was at 600 meters. Maps in evidence that contain contour lines indicate a slightly lesser altitude. Similarly Vilicic testified that no elevation higher than 1000 meters existed in the northerly direction up to Mrkovici, which is also contradicted by the maps, indicating elevations of above 1000 metres in and around locations called Gornji Mrkovici and Donji Mrkovici.
1684. C9 mentions "ground and stone".
1685. P3276.1 (Zecevic Shelling Report).
1686. Based on comparison of the tables in Zecevic Shelling Report, p. 6 and C8, C9.
1687. C8, C9.
1688. Table on p. 6 of Zecevic Ballistic Report, this value is more favorable to the Defence case than the value of 219 m/sec for V? given by Vilicic.
1689. The Majority took the most favourable figures from table 2 in Vilicic Shelling Report and C5: the loss of speed in flight was taken at minimum level, while the increase of speed caused by the difference of altitude was taken at a level, consistent with firing at an 0+3 charge, at a difference of altitude of 500 meters, both options resulting in a possibly higher speed of impact when firing at this lower charge.
1690. The velocity at firing at a 0+2 charge is approximately 40m/sec lower compared to firing at a 0+3 charge which velocity could not generate the velocity at impact needed to explain the embedment of the tailfin in the ground. But even if fired at a 0+2 level the shell would have been fired at a distance of 2577 m, which would still be approximately at the SRK-held confrontation line."
"516. According to witnesses who belonged to the latter army, SRK soldiers in the area did not fire at civilians,1783 but the Majority notes that evidence from other witnesses from a wide variety of backgrounds, including a senior UN representative in Sarajevo and residents of the city, indicates that civilians in ABiH-controlled territory in the vicinity of Spicasta Stijena regularly experienced being shot at.1784 Based on this last evidence, the unobstructed line of sight to Spicasta Stijena as well as the shooting which was directed at the car transporting Witness E to hospital and which came from the direction of this ridge, the Majority is satisfied that the bullet which injured Witness E was fired from the area of Spicasta Stijena. The Majority accepts in particular that since Witness E was kneeling and facing the ridge while playing with flowers, her posture would have caused her back to arch slightly, so that the bullet fired from Spicasta Stijena entered the upper part of her back before exiting through a lower region of her body."
"1783. Nikolic, T. 16002-3, 16049 and 16091-2; DP53, T. 16184; DP34, T. 17892; Knezevic, T. 18962-3.
1784. Thomas, T. 9325-6; ?ehbajraktarevic, T. 1792; Witness AF, T. 5485-6, 5490 and 5499; Jusovic, T. 4147-8 and Ocuz, T. 4176-7."
"535. Both parents believed that the bullet that had injured their daughter had been fired from a ridge known as Baba Stijena, because that location was visible from their house and was controlled by the SRK.1895 Two photographs and a video taken from the front door of the Pitas’ house show this entrance to be completely walled in by neighbouring houses and structures such as fences, offering only a narrow line of sight in the direction of Baba Stijena.1896 […] Hinchliffe measured the distance from Anisa Pita’s house to Baba Stijena to be 895 metres1898 and maps tendered by the Defence in relation to this incident indicate that distance to be on the order of 900 metres.1899 The Trial Chamber also notes that the Defence argued that no medical documents were tendered which would "provide information about the position of entry-and-exit wound on the leg of Anisa Pita, or which would provide the possibility to determine the direction of wound canal, including the angle and the direction from where the bullet came from."1900 Nonetheless, based on the approximate distance of 900 metres and the existence of a line of sight from the Pitas’ front entrance only in the direction of Baba Stijena, the Majority is satisfied beyond reasonable doubt that Anisa Pita was injured by a shot fired from the area of that ridge."
"1895. Ekrem Pita, T. 3990-1 and 4001; Fatima Pita, T. 5879 and 5899-5900; P3280P (video of the location of scheduled incident number 2). Fatima Pita had also seen firing, mostly in the form of shelling, originating from the area of Baba Stijena at night when she left her cellar to go to the bathroom on the ground floor of her house, Fatima Pita, T. 5918 and 5925.
1896. P3266 (photograph taken from the location of scheduled incident number 2); P3279P (360 degree photograph of location of scheduled incident number 2); P3280P (video taken from the location scheduled incident number 2). A picture taken from the entrance to the Pita’s house shows that a small tree lies in the direction of Baba Stijena, partially blocking the line of sight. P3267 (Photograph taken from entrance to the Pitas’ house). Ekrem Pita explained though that this tree was planted after the incident, Ekrem Pita, T. 3992.
1897. P3704 (Map of Sarajevo); Van Lynden, T. 2103; D1925 (Report by Defence military expert Radovan Radinovic).
1898. Hinchliffe, T. 12946. Ekrem Pita thought that the distance from his house to Baba Stijena was somewhere between 350 and 1,200 metres as the crow flies, but was unsure, Ekrem Pita, T. 3991 and 4003. Fatima Pita for her part estimated that distance to be between 200 and 300 metres, Fatima Pita, T. 5879.
1899. The Pitas’ house is separated from Baba Stijena by 5 centimetres on D49 (Map marked by Ekrem Pita). Although no scale is explicitly indicated on this map, the gridding appearing thereon would suggest that a measurement of 5.5 centimetres corresponds to 1,000 metres in actual distance D49 (Map marked by Ekrem Pita). Map D49 thus appears to indicate that the actual distance between the Pitas’ house and Baba Stijena is approximately (1,000/5.5) x 5 = 909 metres, Ekrem Pita, T. 3991 and 4003.
1900. Defence Final Trial Brief, para. 72. See also Acquittal Motion, para. 32."
"554. The Defence argues that it is not possible to determine the source of fire1971 because no on-site investigations were carried out to determine "the angle of descent in which the projectile, or part of the projectile, entered the body of Vildana Kapur".1972 The Trial Chamber does not consider the absence of on-site investigations or technical data concerning the point of entry of a bullet into the body critical to a determination of the source of fire. Sahic testified that she could see the SRK front line from Stara Cesta Street and that often the Stara Cesta Street area was targeted.1973 That front line was in the area north of Stara Cesta Street called Poljine, at a distance of approximately 300-400 metres from the spot where Vildana Kapur was shot.1974 Periodically, flashes of gunfire would be seen coming from Poljine.1975 Sahic further testified that on the day of the shooting, while she and her girlfriends were walking on Stara Cesta Street, the machine-gun flashes were visible in front of them on the SRK side of confrontation lines.1976 On the 360 degree photograph of the area where the shooting occurred, she pointed out a group of white houses beneath a rocky ridge with a dome on it where the shots had come from.1977 […] The Trial Chamber has no reason not to believe that Sahic was in a position to determine where the bullets striking the ground around her and her girlfriends came from. The Trial Chamber is satisfied beyond reasonable doubt that the bullet which wounded Vildana Kapur was fired from SRK-held territory."
"1971. Defence Final Trial Brief, para. 156.
1972. Id.
1973. [ahic, T. 2595.
1974. D153, D1793.
1975. Sahic, T. 2595.
1976. Sahic, T. 2595.
1977. Sahic, T. 2624."
[B. Evidentiary comment:]
P.3.2. Evidence of military presence in a particular area from which the attack was directed.
A. Legal source/authority and evidence:
Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, paras. 294-295, 354, 511-512, 528, 530:
"294. During trial, a considerable amount of evidence was tendered with regard to that group of buildings in Nedarici known as the "Institute for the Blind", allegedly a major source of fire in SRK-held territory against civilians of the surrounding areas. Witnesses marked the confrontation line on a map in court as going south along Lukavicka Cesta street from the intersection where the Institute for the Blind is located.807
295. […] With reference to the previous day, an"UNMO BH Command" report dated 13 July 1994 stated that the commander of 1st Battalion of the SRK Ilidza Brigade admitted that sniping did originate from Bravo PAPA 859578 ("House for the Blind People"), and "promised that there would be no more sniping from that place."812"
"807. Fajko Kadric, T. 3789-90; P3108 (map of the area); Faruk Kadric, T. 3742-3, showing the confrontation lines on D47, map of the area; however, the witness testified that he couldn’t actually see the confrontation lines. All the buildings in front of the "blind Institute and the institute for children were destroyed", as those "below the institute for blind children, the Branka Bujica Street" (area marked on the map as Oslobodjenje-Studenski Dom, Zavod za Slijepe, Dom Penzionera). See also Kucanin, T. 4542, P3644.MK1 (map marked by witness). Faruk Kadric traced another confrontation line along Aleja Branca Bujica (now Aleja Bosne Srebrene), from Ante Babica street up the "Home for the Blind Children", D47 (map of the area marked by witness); Faruk Kadric, T. 3742-3. Witness DP4 marked Aleja Branca Bujica as SRK territory under constant fire from the ABiH; Witness DP4, T. 14137. […]
812. P2759 (UNMO report), page 4, para. 24; Witness DP17, T. 16856-61."
"354. The evidence remains uncontradicted that the area of the Orthodox Church from where the fire came from was within SRK-controlled territory.1129 The Trial Chamber is satisfied beyond reasonable doubt that the Orthodox Church area, Dobrinja IV, was controlled by SRK forces."
"1129. As mentioned above, the confrontation line at the eastern part of Dobrinja were along a street separating Dobrinja I and IV from Dobrinja II and III B and the buildings of Dobrinja IV and the Orthodox Church were placed within SRK-held territory, Dzevlan, T. 3516; Karavelic, T. 11816, P3728 (electronic map marked by Vahid Karavelic); P3732 (map marked by Ismet Hadzic); DP9, T. 14459, 14464, 14496; D1770 (map marked by witness); D1771 (electronic map marked by DP9)."
"511. The Trial Chamber heard uncontested testimonies to the effect that Spicasta Stijena was under the control of the SRK during the conflict. Witness DP53 and Vaso Nikolic, both SRK soldiers,1751 testified that they were sometimes posted in the immediate vicinity of Spicasta Stijena.1752 They explained that SRK troops manned trenches and an observation post there, from which soldiers could peer into certain sections of Sedrenik,1753 while the closest ABiH frontline lay approximately 50 metres below the ridgeline.1754 Witness DP20, also an SRK soldier,1755 occasionally went to this area1756 and confirmed that the SRK had deployed troops at Spicasta Stijena.1757 There was ongoing fighting between the ABiH and the SRK in this area1758 and in April 1993 for example, the ABiH captured an SRK trench on the ridgeline.1759 The SRK recaptured that trench a few days thereafter however1760 and overall the confrontation lines in the area did not change throughout the conflict except in limited instances.1761
512. Witnesses who did not belong to the SRK corroborated this evidence. Major Francis Thomas, a representative of the United Nations,1762 recalled visiting trenches belonging to the SRK near Spicasta Stijena.1763 Witness E, a resident of Sedrenik,1764 concluded that the SRK controlled the ridgeline based on the shouts and expletives which she could hear coming from there.1765 Nazija Ocuz, another resident of Sedrenik,1766 testified that she too believed that the SRK controlled Spicasta Stijena because she had seen two SRK soldiers arguing there during the conflict.1767"
"1751. Witness DP53, T. 16114-5; Nikolic, T. 15962.
1752. Witness DP53, T. 16165, 16169, 16177-8; Nikolic, T. 15961-2 and 15981.
1753. Witness DP53, T. 16170 and 16178; Nikolic, T. 15981.
1754. Witness DP53, T. 16153; Nikolic, T. 15982.
1755. Witness DP20, T. 15517.
1756. Witness DP20, T. 15777.
1757. Witness DP20, T. 15770-1.
1758. Witness DP53, T. 16144; Nikolic, T. 15975.
1759. Witness DP53, T. 16152-3; Nikolic, T. 15980 and 16005.
1760. Witness DP53, T. 16155.
1761. Witness DP53, T. 16124. One of the consequences of this ongoing fighting was that the trees on the ridgeline were damaged and felled as the conflict wore on, Witness DP53, T. 16194-5.
1762. Thomas, T. 9255.
1763. Thomas, T. 9325.
1764. Witness E, T. 4033.
1765. Witness E, T. 4067 and 4072-3.
1766. Ocuz, T. 4164.
1767. Ocuz, T. 4166 and 4188. "
"528. Maps marked by soldiers of both the SRK and the ABiH indicate that the two armies faced each other along a confrontation line located in the south-eastern quadrant of Sarajevo, with the ABiH controlling the northern base of Mount Trebevic.1842 Testimonies heard by the Trial Chamber corroborated this evidence. DP1, who provided humanitarian relief for the Serb population living in Sarajevo during the conflict,1843 explained that one of his acquaintances had dug trenches at the foot of Mount Trebevic for the ABiH.1844 Akif Mukanovic, a soldier of the ABiH deployed in that area,1845 confirmed the existence of such trenches.1846"
1842. D1778 (Map marked by Witness DP11); D1809 (Map marked by Witness DP16); P3728 (Map related to scheduled sniping incident number 11 marked by Vahid Karavelic).
1843. Witness DP1, T. 13252-3.
1844. Witness DP1, T. 13342 and 13346.
1845. Mukanovic, T. 3097.
1846. Mukanovic, T. 3097. 3099.
"530. In particular, Carl Harding, a UNMO serving in Sarajevo at the time Anisa Pita was shot,1862 explained that, except for one instance when the ABiH occupied a part of this road for a "short while"1863 before retreating,1864 the road leading to Pale was controlled by the SRK1865 and that the position of the confrontation lines in this area was "very static because the ground was very difficult … [and] is very, very steep and closely wooded [so that] the road that went to Pale was a significant boundary for both sides."1866 The Trial Chamber is satisfied that this and the other evidence from a military expert for the Defence, an international journalist and a senior United Nations representative establish beyond reasonable doubt that the SRK operated from the general area of Baba Stijena."
1862. Harding served as a UNMO in Sarajevo from July 1992 to January 1993. Harding, T. 4311.
1863. Harding, T. 4459-60. Harding did not indicate when this attack took place.
1864. Harding, T. 4460. Witness DP11 confirmed that the ABiH frequently attacked this road. Witness DP11, T. 15064.
1865. Harding, T. 4462.
[B. Evidentiary comment:]
