3. The perpetrator directed an attack.

3.1.1. Evidence of attack occurring.

P.1. Evidence of shelling.

P.2. Evidence of the use of explosives or mines.

P.3. Evidence of setting building on fire.

P.4. Evidence of bombing.

P.5. Evidence of missile attacks.

P.6. Evidence of the use of machinery and trucks to destroy buildings

3.1.2. Evidence of result of attack.

P.7. Evidence of damage to protected civilian objects.

3.1.3. Evidence concerning the source of the attack.

P.8. Evidence concerning direction of attack.

P.9. Evidence of military presence in a particular area from which the attack was directed.

P.10. Existence/presence of military units and/or artillery capable of carrying out such an attack.

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 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 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.”

B. Evidentiary comment:

The equivalent provision under the ICTY Statute (article 3(d)) does not expressly contain an element of “attack”. It requires “seizure of, destruction or willful damage done to” particular protected institutions. However the ICTY has interpreted the provision as requiring the existence of an “attack”.

3.1.1. Evidence of attack occurring.

P.1. 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, 107 – 110, 133:

“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 Davies’s 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 Jovic’s 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 o’clock 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 Grbic’s 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 Jovic’s 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 didn’t 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.”

“107. The precise pattern of the shelling and the details of its ebbs and flows on 6 December 1991 are again, imprecise. As mentioned above, the Chamber has had recourse to the ECMM log sheet³⁰⁷ which, despite the matters just mentioned, offers a useful account giving some indication of the frequency and intensity of the explosions throughout the day. The Chamber accepts from this log and other evidence³⁰⁸ that the most intense periods of shelling occurred in the morning hours, between 0900-0930 and about 1100 hours. The relevant entries in the ECMM log read as follows :

As noted by the ECMM monitors, the Chamber finds that a considerable drop in the frequency of the shelling occurred late-morning. Some evidence suggests this could have occurred a little after 1100 hours,³⁰⁹ at which time the frequency was noted by the ECMM monitors to be slowing. However, they did precisely identify a considerable drop in frequency at 1119 hours. It is not the case that the shelling ever ceased entirely, but the frequency of shots slowed considerably. This lull was not long-lived, however, and shelling picked up again, well before 1200 hours, and continued though more sporadically.

108. It was at around 1130 hours that Nikola Jovic and his sister left the shop in Miha Pracata street and walked through the Od Puca street, through Stradun, out of the Old Town through the Pile Gate, towards Boninovo and home to Gruz, which indicates that the intensity of the shelling at this time had considerably eased.³¹⁰ It continued, however, as described by the visual and oral evidence. For example, the building where Lucijano Peko³¹¹ was staying on Prijeko Street was hit sometime between 1100 and 1200 hours on 6 December. As she described it, the building shook, like it was an earthquake.³¹² She and the other residents felt totally unprotected, and, around 1300 hours when the shelling was a little less intense, they all moved to a neighbouring building which could provide a little more protection.³¹³ Other residents of the Old Town also suffered direct hits during this time. The roof of Witness A’s building was hit by a projectile sometime between 1200 and 1300 hours.³¹⁴ When he later had a chance to inspect the damage, Witness A discovered that two projectiles of different calibres had hit the roof. He found the stabiliser fin of one of the mortar shells, 120mm calibre, on the sofa right below the point of damage.³¹⁵ The ECMM log records sporadic shelling prior to 1200 hours which appeared to be in the direction of the Old Town. The monitors also recorded artillery fire.

109. Returning to the compilation video of the attack, it demonstrates that by 0934 hours, many boats in the harbour of the Old Town had been hit and were billowing black smoke into the atmosphere above the Old Town.³¹⁶ These appeared to be the larger vessels. A clip, without date or time-stamp, which appears later in the chronology of the video, shows a car driving down Stradun. The Chamber is of the view that this clip is out of time order in the video and should be placed earlier because in this clip there is a noticeable lack of damage and debris on the Stradun. This indicates it was filmed earlier in the day, as confirmed by other evidence, e.g. the testimony of Witness A who described damage to the Stradun from 0600 hours onwards.³¹⁷ The video also contains a clip, time-stamped 1243 hours, which indicates that by this time the Old Town had sustained considerable damage. Subject to these comments, in the Chamber’s finding, the video provides an intermittent overview of the Old Town during the attack and clearly reveals fires burning fiercely in many of its locales.³¹⁸

110. One witness who was present in the Old Town that day puts the final cessation of shelling as early as around 1500 hours.³¹⁹ However, the ECMM log records an entry “No shelling for 20 minutes”, at 1630 hours, which is followed by a record of at least four explosions (position identified) after which it is noted that the ceasefire appears to be holding, but some shelling occurring “NW of Hotel Argentina”. There were other reports of sporadic shelling into the early evening.³²⁰ At 1915 hours, the entry in the ECMM log indicates that there is nothing to report and that there has been “no shelling to the best of our knowledge”. The entry at 1925 hours records the end of the general emergency alert over Dubrovnik.³²¹ The Chamber finds that shelling decreased noticeably from around 1500 hours and had substantially ceased by a little after 1630 hours, i.e. the shelling of Dubrovnik, including the Old Town, had continued for over ten and a half hours on 6 December 1991.”

“307. Exhibit P61, tab 30.

308. Exhibit P164, a Report on enemy combat operations on 5 and 6 December 1991 by the Defence command of Dubrovnik, states that the “fiercest fighting took place between 0900 and 1000 hours when the enemy directed all artillery pieces to fire on the old and new towns, which inflicted serious damage on the old town.”

309. Colin Kaiser testified that around 1100 hours the shelling decreased to almost nothing, although shells were still falling periodically, T 2433.

310. Nikola Jovic, T 2948.

311. Lucijana Peko had moved with her family on 7 October 1991, from an area of greater Dubronvik called Sveti Jakov, to stay with a friend in her house on Prijeko Street in the Old Town, T 1841-1843. The family had made the decision to move because it was felt that the Old Town was protected and would not come under attack, T 1844.

312. Lucijana Peko, T 1848-1849.

313. Lucijana Peko, T 1849.

314. Witness A, T 3627-3628.

315. Witness A, T 3633-3634.

316. Exhibit P66 (at 31:37 and 31 :40).

317. See for example, Witness A, T 3627.

318. Exhibit P66 (at 32:13).

319. Colin Kaiser, T 2432-2435.

320. Witness A, T 3633.

321. See generally, Exhibit P61, tab 30.”

“133. By way of marked contrast to the evidence of Captain Nesic, there is the evidence of Witness B, a JNA soldier at Zarkovica that day, who was responsible for carrying Maljutka rockets between the trucks and the store room on Zarkovica, or directly to the firing positions themselves.³⁹² His evidence is that while the artillery attack from Zarkovica initially targeted Srdj, once the JNA infantry set out, the attack was directed towards Dubrovnik:³⁹³ “The Old Town, the New Town, and that island on the left-hand side” ³⁹⁴ i.e. Lokrum. Witness B testified that two or three times during the day for between five and ten minutes at a time, he was able to observe what was happening in the city of Dubrovnik below, from a vantage point on Zarkovica directly facing the Old Town.³⁹⁵ He observed shells falling on the Old Town:

It was the evidence of Witness B that over 100 Maljutka missiles alone, i.e. not including the cannons, were fired from Zarkovica that day.³⁹⁷ He testified that the firing only stopped around 1500 hours on 6 December 1991, which is consistent with the experience of those in the Old Town.³⁹⁸”

“392. Witness B, T 5037-5038; T 5042.

393. Witness B, T 5037.

394. Witness B, T 5037.

395. Witness B, T 5043; Exhibit P154.

396. Witness B, T 5043-5044.

397. Witness B, T 5053.

398. Witness B, T 5052-5053.”

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 645 – 646, 654:

“645. In early May or June 1992, the town mosque in Bosanski Novi was shelled and set on fire by Bosnian Serb soldiers.¹⁶³⁹ The walls were badly damaged but the minaret remained standing. Heavy machinery was brought from Prijedor in order to knock down the minaret. When the mosque was destroyed, trucks arrived to remove the rubble from the mosque. The site was then flattened and used as a parking lot. The tombs of the cemetery were also removed.¹⁶⁴⁰”

“646. Other Muslim institutions dedicated to religion in the municipality of Bosanski Novi were targeted by Bosnian Serb forces. […] During an attack by Bosnian Serb forces on Suhaca, the two mosques in the village were badly damaged by the shelling.¹⁶⁴³ […]”

“1639. BT-81, T. 13787-13788; Colin Kaiser, T. 16470-16471.

1640. Malik Kapetanovic, ex. P1912 , 92bis statement, 02907027; Colin Kaiser, T. 16470-16471. See, e.g., ex. P1183.2., “Supplement to the Report on the Damaging and Destruction of Muslim and Roman Catholic Sacral Buildings in the Municipalities of Bosanski Novi, Donji Vakuf, Kljuc, Kotor Varos, Prijedor and Sanski Most in the 1992-95 War, with specific reference to 1992”.

[…]

“1643. BT-50, ex. P1641, 92bis statement, 00672857 (under seal); BT-82, T.13969, 14012.”

“654. The town mosque in Prnjavor was targeted twice. On the first occasion it was damaged, and on the second it was razed to the ground.¹⁶⁷³ Attacks by Bosnian Serb forces also took place in Prnjavor municipality. The mosque in Lisnja was damaged by shelling and set on fire in 1992, by Bosnian Serb forces. ¹⁶⁷⁴ […]”

“1673. Jasmin Odobasic, T. 15128; BT-51, ex. P1784, 92bis statement, 00635471 (under seal); see, e.g., ex. P1788, “Report”, dated 22 June 1992, which states: “an Muslim place of worship in Prnjavor has been demolished.” See, e.g., ex. P1789, “Document dated 6 August 1992”, which states in para. 2: “All places of worship not belonging to the Serbian Orthodox Church are being demolished in the Teslic and Prnjavor areas.”

1674. BT-91, T. 15898; Rusmir Mujani c, T. 16017.”

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. […]”

Prosecutor v Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, para. 297:

“297. The Trial Chamber is satisfied that the mosque in Hambarine was shelled during the attack on Hambarine.⁷⁰⁵”

“705. Witness C, T. 2303 and Nermin Karagic, T. 5207.”

Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 807:

“807. The evidence about the Vitez municipality may be summarised as follows:

[…]

(ii) Stari Vitez: […] Edib Zlotrg heard Pero Skopljak say that he ordered the shelling of the minaret at Stari Vitez because a Muslim sniper was operating from there.¹⁷³³ Four mosques and one Muslim junior seminary were destroyed in Vitez municipality.¹⁷³⁴

(iii) Ahmici: In the attack on 20 October 1992, the HVO used incendiaries on three to four houses and damaged 15 others. The top of the minaret of the mosque was hit by a shell.¹⁷³⁵ […]”

“1733. Edib Zlotrg, T. 1703.

1734. Ex. Z2715.

1735. Abdulah Ahmic, T. 3551-53.”

P.2. Evidence of the use of explosives or mines.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 644, 646- 649, 651- 654:

“644. The Bosanska Krupa town mosque was mined by Bosnian Serb forces in April 1992. As a result of ensuing explosion, the minaret fell.¹⁶³⁶ The Roman Catholic Church in town was also destroyed.¹⁶³⁷ The mosque in the village of Arapusa was also destroyed by explosives.¹⁶³⁸”

“1636. Muho ]ehic, ex. P1913, 92bis statement, 02907042; BT-56, T. 17498.

1637. BT-56, T. 17498.

1638. Muho ]ehic, ex. P1913, 92bis statement, 02907043.”

“(iii) Bosanski Novi

[…]

646. Other Muslim institutions dedicated to religion in the municipality of Bosanski Novi were targeted by Bosnian Serb forces. […] The minaret on the roof of the mosque in Donji Agici was blown off by an explosion and the roof structure collapsed.¹⁶⁴⁶

(iv) Bosanski Petrovac

647. The mosques in the centre of Bosanski Petrovac town, named Donji Biscani and Srednji Biscani were damaged by Bosnian Serb forces in July 1992.¹⁶⁴⁷ Following explosions, the minarets of the Donji Biscani and Srednji Biscani mosques fell to the ground. The following days the rubble was cleared away by trucks.¹⁶⁴⁸ The minaret of the Rasinovac mosque was also blown up by Bosnian Serb forces.¹⁶⁴⁹

(v) Celinac

648. The old wooden mosque in the town of Celinac was mined.¹⁶⁵⁰ After the explosion, trucks cleared away what was left.¹⁶⁵¹ The smaller mosque in town and the little Catholic Chapel at the exit from town were also destroyed by Bosnian Serb forces. The latter was destroyed in mid 1992.¹⁶⁵²

(vi) Donji Vakuf

649. The three mosques in the town of Donji Vakuf were targeted by Bosnian Serb forces.¹⁶⁵³ The main mosque called Basdzamija was mined and as a result was completely destroyed.¹⁶⁵⁴ […] The mosque in the hamlet of Seherdzik was destroyed by men wearing JNA uniforms on 9 August 1992. Due to the explosion, the walls of the mosque collapsed but part of the minaret was left standing.¹⁶⁵⁸ […]

“(viii) Kotor Varos

651. During attacks on villages in Kotor Varos by Bosnian Serb forces in June and July 1992, the mosques in the villages of Vrbanjci and Hanifici were set on fire and mined.¹⁶⁶² […]

(ix) Prijedor

652. The most systematic and brutal infliction of damage to both Muslim and Catholic institutions dedicated to religion occurred in Prijedor. In late August 1992 Bosnian Serb soldiers broke into the Roman Catholic Church in Prijedor to plant explosives in it. At 0100 hours the explosives detonated and destroyed the church.¹⁶⁶⁴ The police appeared indifferent to the reports on the events.¹⁶⁶⁵

653. […] The new mosque in Kevljani was completely destroyed by mines. The minaret and the mosque were blown up with explosives.¹⁶⁷¹ The Gornji Jakupovici mosque’s minaret was badly damaged by mines.¹⁶⁷²

(x) Prnjavor

654. […] The mosque in Puraci was blown up.¹⁶⁷⁵”

“1646. Colin Kaiser, T. 16408; BT- 83, T. 14087

1647. Ahmed Hidic, T. 16254; Jovo Radojko, T. 20194; See, e.g., ex. P1863 which is a report prepared by a Muslim organisation in 1997 recording the total amount of destruction in Bosanki Petrovac during the war. The three mosques listed in the report were destroyed in July 1992 : Ahmed Hidic, T. 16254; Dzemal Fazlic, ex. P1978, 92bis statement, 00942944 ; Alem Jaganjac, ex. P1910, Rule 92bis Statement, 02907001.

1648. Alem Jaganjac, ex. P1910, 92bis statement, 02907001.

1649. Alem Jaganjac, ex. P1910, 92bis statement, 02907001; ex. P1863, “Report, Information on dead, wounded, displaced and missing persons”, dated 25 March 1997, p. 6.

1650. Mehmet Talic, T. 24164; BT- 90, T. 17073 (closed session); Boro Mandic, T. 21374. See, e.g., ex. P1992 , “News item”, dated 12 June 1992, which provides: “[I]n Celinac, at one o’clock in the morning, one or more unknown perpetrators attacked the building of the Mosque Board with hand grenades.” See, e.g., ex. P1788 which states “[…] an Muslim place of worship in Prnjavor has been demolished. Some time before that, the one in Celinac was also demolished[…]”

1651. BT-90, T. 17089 (closed session ).

1652. BT-90, T. 17074 (closed session ); Mehmet Talic, T. 24164.

1653. BT-103, T. 19954 (closed session); See, e.g., ex. P1750 “Document”, reporting that “the mosques in Donji Vakuf,, where Moslems had lived in harmony with their Serbian neighbours for generations, are now empty and destroyed […]”; Dzevad Doslic, T. 14859-60.

1654. BT-103, T. 19954 (closed session ); BT-89, T. 14810-11 (closed session); Colin Kaiser, T. 16469.

[…]

1658. Hamdija Begovic, ex. P1908, 92bis statement, 02907117.

[…]

1662. BT-74, ex. P2046, 92bis statement, 01076158 (under seal); Redjo Alagic, ex. P1915, 92bis statement , 02119435; Idriz Alekic, ex. P1895, 92bis statement, 02119431. Hanifici mosque was visited by the Trial Chamber and the Parties during the site visit which took place in March 2004.

[…]

1664. Nusret Sivac, T. 6607-07; BT -28, ex. P557, 92bis statement, 01799804 (under seal); Kerim Mesanovic, T . 11247, 11255-11256.

1665. BT-28, ex. P557, 92bis statement, 01799805 (under seal).

[…]

1671. Colin Kaiser, T. 16404-05. This location was visited by the Trial Chamber and the Parties during the site visit which took place in March 2004.

1672. Colin Kaiser, T. 16408.

[…]

1675. Jasmin Odobasic, T. 15130; Rusmir Mujanic, T. 16015-16018.”

Prosecutor v Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, para.304:

“(j) Prijedor Catholic church - 28 August 1992

304. The Trial Chamber finds that the Catholic church in Prijedor was blown up in the early hours of 28 August 1992. Prior to its destruction, the Catholic church in Prijedor was subjected to several searches by the police and army. The soldiers insisted that there was a sharp-shooter in the steeple. On 28 August 1992 at around 01:00 the church was blown up by a group of soldiers and police.⁷¹⁷ A very loud explosion could be heard and pieces of the debris flew through the air.⁷¹⁸ Nusret Sivac, who had also heard the explosion and seen the destruction of the church, further testified that he later saw a group of men, including Dusan Miljus and Vljiko Hrgar, trying to destroy the church completely. They claimed that it was on account of the threat posed to pedestrians by the leaning bell tower.⁷¹⁹ Several other witnesses confirmed that the Catholic church in Priejdor had been destroyed by Serbs.⁷²⁰”

“717. Witness AA, 92 bis statement, 9 October 2000, p. 4.

718. Nijaz Kapetanovic, T. 2952-54.

719. Nusret Sivac, T. 6606 – 08.

720. Minka Cehajic, T. 3102, Witness H, 92 bis transcript in Sikirica,T. 2257, Ibrahim Beglerbegovic, T. 4142, and Witness DF, T. 10099.”

Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 607:

“607. There is no dispute that the mosque in Sovici was blown up and destroyed.¹⁴⁸⁶ The date of the destruction of the mosque is unclear; from the evidence presented at trial, however, the Chamber is satisfied that the mosque was destroyed between 18 and 20 April 1993.¹⁴⁸⁷ Both the mosque in Sovici and the one in Doljani were destroyed.¹⁴⁸⁸”

“1486. Naletilic Final Brief, p 33, states that “[t]he Defence does not dispute the Sovici mosque was blown up and destroyed, but there has not been evidence beyond reasonable doubt that this was accomplished under the command, order or direction of Naletilic”. See also witness NN, T 12899-12900 and witness NW, T 14965-14966, both testifying for the Defence of Mladen Naletilic. In the earlier stages of the trial the Defence seems to have argued that the mosque was not recognisable as a mosque, see inter alia, witness A, T 550-552.

1487. Witness W testified that he learned in Ljubuski prison, i.e. after 18 April 1993, that the mosque had been destroyed, witness W, T 3180-3181. On 17 April 1993, the mosque was still intact, witness A, T 500. On 20 April, witness D heard a blast, and they later learned that the mosque had been destroyed; witness D, T 912 and T 945. Witness X could see the mosque burning from the Sovici school, witness X, T 3326, 3342 (confidential), in drawing conclusions form the rest of her testimony the day she saw the mosque burn was most probably 19 or 20 April 1993. Defence witness NW testified that the mosque was blown up on 18 April 1993, Defence witness NW, T 14965-14966. Witness B testified that during the night, he heard a very loud explosion and later he learned that the mosque had been blown up, witness B, T 790-791. Defence witness NN testified that the mosques in Sovici and Doljani had been blown up on 17, 18 or 19 May 1993, Defence witness NN, T 12899-12900, 12934 Witness Y testified that on 18 April 1993 he saw that the mosque was damaged, T 3389. Witness A testified that the mosque was not damaged on 17 April 1993, witness A, T 500-501; witness B, T 790-791. Exhibits PP 333 and PP 333.1 state that the mosque was destroyed after the hostilities.

1488. Witness Said Smajkic, T 4086-4087; exhibits PP 333, PP 333.1. See also exhibit PP 6.6, which is an aerial photograph of the destroyed mosque in Sovici; exhibits PP 8.6, PP 8.7, which are aerial photographs of the destroyed mosque in Doljani.”

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 421:

“421. The Trial Chamber notes at the outset that according to the witness Stewart, it was barely plausible that soldiers would have taken refuge in the mosque since it was impossible to defend⁸⁷⁶. Furthermore , the mosque in Donji Ahmici was destroyed by explosives laid around the base of its minaret ⁸⁷⁷ . According to the witness Kaiser, this was "an expert job" which could only have been carried out by persons who knew exactly where to place the explosives ⁸⁷⁸ . The witness Zec stated that he had heard a Croatian soldier speaking on his radio asking for explosives "for the lower mosque in Ahmici" ⁸⁷⁹ . The destruction of the minaret was therefore premeditated and could not be justified by any military purpose whatsoever. The only reasons to explain such an act were reasons of discrimination.

“876.Witness Stewart, PT p. 23864.

877. Witness Thomas, PT pp. 2645-2650; PT p. 23660.

878. Witness Kaiser, PT p. 10663. See also witness Thomas, PT p. 2650.

879. Witness Zec, PT p. 4286-4287.”

P.3. 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-A, Judgement (AC), 17 December 2004, para. 589:

“589. […] The Trial Chamber further relied on Witness TW12,823 who testified

The evidence of Witness TW12 show clearly that the mosque was deliberately set on fire.”

823. Based on transcripts from the Blaškić trial.

824. Blaškić , T. 9532.”

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 645 – 646, 649-651, 653- 654:

“(iii) Bosanski Novi

645. In early May or June 1992, the town mosque in Bosanski Novi was shelled and set on fire by Bosnian Serb soldiers.¹⁶³⁹ […]

646. Other Muslim institutions dedicated to religion in the municipality of Bosanski Novi were targeted by Bosnian Serb forces. The Vidorije mosque was burned down in May 1992.¹⁶⁴¹ […] The old wooden mosque in Blagaj Rijeka and its minaret was set on fire.¹⁶⁴⁴ […]”

“1639. BT-81, T. 13787-13788; Colin Kaiser, T. 16470-16471.

[…]

1641. Malik Kapetanovic, ex. P1912 , 92bis statement, 02907027.

[…]

1644. Midho Alic, T. 13881; BT-49 , T.14223 (closed session).”

“(vi) Donji Vakuf

649. […] The mosque in the village of Sokolina was set on fire by men wearing olive grey uniforms in June 1992.¹⁶⁵⁹

(vii) Kljuc

650. [...] The Biljani Mosque was set on fire in the morning of 10 July 1992 when the village was attacked by Bosnian Serb forces.¹⁶⁶¹

(viii) Kotor Varos

651. During attacks on villages in Kotor Varos by Bosnian Serb forces in June and July 1992, the mosques in the villages of Vrbanjci and Hanifici were set on fire and mined.¹⁶⁶² The Roman Catholic Church in the town of Kotor Varos was also set on fire.¹⁶⁶³

653. In areas surrounding Prijedor town, institutions dedicated to religion were targeted by Bosnian Serb forces. In Brisevo, the Bosnian Serb military burned down the Roman Catholic church.¹⁶⁶⁶ In Kamicani, the mosque was set on fire.¹⁶⁶⁷ […]

(x) Prnjavor

654. […] The mosque in Lisnja was damaged by shelling and set on fire in 1992, by Bosnian Serb forces. ¹⁶⁷⁴ […]”

“1659. Avdo Habib, ex. P1909, 92bis statement, 02907140.

[…]

1661. Dzevad Dzaferagic, 92bis statement, 02061866. The mosque was visited by the Trial Chamber and the Parties during the site visit which took place in March 2004.

1662. BT-74, ex. P2046, 92bis statement, 01076158 (under seal); Redjo Alagic, ex. P1915, 92bis statement , 02119435; Idriz Alekic, ex. P1895, 92bis statement, 02119431. Hanifici mosque was visited by the Trial Chamber and the Parties during the site visit which took place in March 2004.

1663. BT-71, T. 17651. See, e.g. ex., P2185, “Extract from the Minutes of the 53rd session of Crisis Staff ” held on 2 July 1992. This location was visited by the Trial Chamber and the Parties during the site visit which took place in March 2004.

[…]

1666. Ivo Atlija, T. 5589; see , e.g., ex. 1525/S186 “Videotape showing the remains of the Roman Catholic church”.

1667. Nerim Karagic, T. 6249.

[…]

1674. BT-91, T. 15898; Rusmir Mujani c, T. 16017.”

Prosecutor v Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, paras. 298, 301:

(d) Mosques in Prijedor - May 1992

298. Based on the evidence of several witnesses, the Trial Chamber finds that two mosques⁷⁰⁷ were already⁷⁰⁸ destroyed in May 1992, amongst them, the Carsijka mosque. “The first to be struck in the old town and in Zagrad, the Bereg part of the town, were the mosques. Both mosques had been hit and destroyed and burned during the first – the initial onslaught.”⁷⁰⁹ A group of men identified as Milenko Milic, Momcilo Radanovic, Cigo and Milorad Vokic (personal bodyguard to Simo Drljaca) entered the yard outside the main mosque in Prijedor and set it alight.⁷¹⁰

“707. See also infra (k).

708. See infra para. 305

709. Nusret Sivac, T. 6575.

710. Nusret Sivac, T. 6575-76 and T. 6603-06; Exh. S213, photograph 4; Minka Cehajic, T. 3102; Witness B, T. 2214.”

“(g) Kamicani mosque - June 1992

301. The mosque in Kamicani was destroyed by Serbs. Both witnesses T and U testified that they saw the mosque being set alight.⁷¹²

“712. Witness U, T. 5882, Witness T, 92 bis transcript in Kvocka, T. 2624.”

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.”

P.4. 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.”

P.5. 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.”

P.6. Evidence of the use of machinery and trucks to destroy buildings

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 645, 647 – 649:

“(iii) Bosanski Novi

645. In early May or June 1992, the town mosque in Bosanski Novi was shelled and set on fire by Bosnian Serb soldiers.¹⁶³⁹ The walls were badly damaged but the minaret remained standing. Heavy machinery was brought from Prijedor in order to knock down the minaret. When the mosque was destroyed, trucks arrived to remove the rubble from the mosque. The site was then flattened and used as a parking lot. The tombs of the cemetery were also removed.¹⁶⁴⁰”

“1639. BT-81, T. 13787-13788; Colin Kaiser, T. 16470-16471.

1640. Malik Kapetanovic, ex. P1912 , 92bis statement, 02907027; Colin Kaiser, T. 16470-16471. See, e.g., ex. P1183.2., “Supplement to the Report on the Damaging and Destruction of Muslim and Roman Catholic Sacral Buildings in the Municipalities of Bosanski Novi, Donji Vakuf, Kljuc, Kotor Varos, Prijedor and Sanski Most in the 1992-95 War, with specific reference to 1992”.”

“(iv) Bosanski Petrovac

647. The mosques in the centre of Bosanski Petrovac town, named Donji Biscani and Srednji Biscani were damaged by Bosnian Serb forces in July 1992.¹⁶⁴⁷ Following explosions, the minarets of the Donji Biscani and Srednji Biscani mosques fell to the ground. The following days the rubble was cleared away by trucks.¹⁶⁴⁸ […]

(v) Celinac

648. The old wooden mosque in the town of Celinac was mined.¹⁶⁵⁰ After the explosion, trucks cleared away what was left.¹⁶⁵¹ […]

(vi) Donji Vakuf

649. The three mosques in the town of Donji Vakuf were targeted by Bosnian Serb forces.¹⁶⁵³ The main mosque called Basdzamija was mined and as a result was completely destroyed.¹⁶⁵⁴ The rubble of this mosque was loaded on trucks and thrown in the river Vrbas and on its banks. The location of the mosque was subsequently turned into a parking lot.¹⁶⁵⁵ […]”

“1647. Ahmed Hidic, T. 16254; Jovo Radojko, T. 20194; See, e.g., ex. P1863 which is a report prepared by a Muslim organisation in 1997 recording the total amount of destruction in Bosanki Petrovac during the war. The three mosques listed in the report were destroyed in July 1992 : Ahmed Hidic, T. 16254; Dzemal Fazlic, ex. P1978, 92bis statement, 00942944 ; Alem Jaganjac, ex. P1910, Rule 92bis Statement, 02907001.

1648. Alem Jaganjac, ex. P1910, 92bis statement, 02907001.

[…]

1650. Mehmet Talic, T. 24164; BT- 90, T. 17073 (closed session); Boro Mandic, T. 21374. See, e.g., ex. P1992 , “News item”, dated 12 June 1992, which provides: “[I]n Celinac, at one o’clock in the morning, one or more unknown perpetrators attacked the building of the Mosque Board with hand grenades.” See, e.g., ex. P1788 which states “[…] an Muslim place of worship in Prnjavor has been demolished. Some time before that, the one in Celinac was also demolished[…]”

1651. BT-90, T. 17089 (closed session ).

[…]

1653. BT-103, T. 19954 (closed session); See, e.g., ex. P1750 “Document”, reporting that “the mosques in Donji Vakuf,, where Moslems had lived in harmony with their Serbian neighbours for generations, are now empty and destroyed […]”; Dzevad Doslic, T. 14859-60.

1654. BT-103, T. 19954 (closed session ); BT-89, T. 14810-11 (closed session); Colin Kaiser, T. 16469.

1655. Dzevad Doslic, T. 14859-14860.”

3.1.2. Evidence of result of attack.

P.7. Evidence of damage to protected 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, 316, 318 – 319, 326 – 327:

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.”

“316. In general terms, the Chamber’s 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 Chamber’s findings in relation to these 52 buildings and structures are included in an Annex attached to this Judgement, 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 Chamber’s 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.

327. In relation to Count 6 specifically, the Chamber observes that the Old Town of Dubrovnik in its entirety⁹⁸⁹ was entered onto the World Heritage List in 1979 upon the nomination of the SFRY.⁹⁹⁰ The properties inscribed on the World Heritage List include those which, “because of their architecture, their homogeneity or their place in the landscape, are of outstanding universal value from the point of view of history, art or science.”⁹⁹¹ The Chamber is of the view that all the property within the Old Town, i.e. each structure or building, is within the scope of Article 3(d) of the Statute. The Chamber therefore concludes that the attack launched by the JNA forces against the Old Town on 6 December 1991 was an attack directed against cultural property within the meaning of Article 3(d) of the Statute, in so far as that provision relates to cultural property.”

“989. The Old Town comprised: “The urban historical complex of Dubrovnik includes all the buildings erected from the XIIth to the XVIth century, within the precincts of the fortified walls. It covers an area of 15,2 ha […] The boundaries of the historical urban complex are precisely defined by the fortified walls, the former moats and, on the southern side, by the steep coast-line.”, P63/2, p 1.

990. Colin Kaiser, T 2378-2379, Exhibits P63/2, P63/7; Exhibit P14, p 11.

991. Convention concerning the protection of the world cultural and natural heritage, adopted by the General Conference at its seventeenth session, Paris, 16 November 1972, Exhibit P63/11, Article 1.”

Prosecutor v. 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 hospital’s 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 Koševo 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 Koševo 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.”

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):

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 280:

“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. ⁸⁹⁹”

However, article 8(2)(b)(ix) is worded differently from article 3(d) of the ICTY Statute. The latter requires “seizure of, destruction or wilful damage done” to the protected institutions and usually the court has been considering destruction or wilful damage. It might be that the different wording of the Rome Statute means that evidence of resulting damage is not necessarily, although presumably it would still be relevant in proving that an attack had occurred.

Prosecutor v. Tihomir Blaškić, 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.”

3.1.3. Evidence concerning the source of the attack.

P.8. Evidence concerning 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, 454, 466 – 491, 499, 516, 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).”

“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.”

“499. […] He established that the fire had originated from Poljine and Trebevic,¹⁷¹³ both areas being within SRK-held territory during the Indictment period. During his testimony in court, Harding added that “(t(he damage that I inspected was on the vertical sides of the hospital and so did not come from the city centre”.¹⁷¹⁴”

“1713 - P3660 (Battle damage assessment of Koševo Hospital dated January 1993 by Carl Harding).

1714 - Harding, T. 6445.”

“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.”

“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.”

P.9. 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.

1866. Harding, T. 4447.”

P.10. Existence/presence of military units and/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 mtbr’s 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 Jovanovic’s 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 Chamber’s 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.”