Table of contents:
5.1. Evidence showing that the protected building was intended to be the object of the attack
P.20. Evidence indicating the intent to cause the destruction or damage of protected objects.
P.20.1. Evidence of persistent shooting or high frequency weapon use.
P.20.2. Evidence of a motive for intentionally attacking the protected objects
P.21.1. Evidence indicating the absence of military activity/targets in the area.
5.2. Evidence that the perpetrator knew the building had protected status
P.22. Evidence inferred from a circumstance.
P.22.1. Evidence that the special/protected nature of the object of the attack was well known.
Element:
A. Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 329:
329. As to the mens rea element for both crimes the Chamber makes the following observations. In relation to Count 4, the Chamber infers the direct perpetrators intent to destroy or damage property from the findings that the attack on the Old Town was deliberate, and that the direct perpetrators were aware of the civilian character of the Old Town.994 Similarly, for Count 6, the direct perpetrators intent to deliberately destroy cultural property is inferred by the Chamber from the evidence of the deliberate attack on the Old Town,995 the unique cultural and historical character of which was a matter of renown, as was the Old Towns status as a UNESCO World Heritage site.996 As a further evidentiary issue regarding this last factor, the Chamber accepts the evidence that protective UNESCO emblems were visible, from the JNA positions at Zarkovica and elsewhere, above the Old Town on 6 December 1991.997
994. See supra, paras 214; 285-288.
995. See supra, para 214.
996. See supra, para 21.
997. The video evidence shows clearly visible emblems indicating that the buildings and the structures within the Old Town were protected, Minceta Fort, Exhibit P78 at 13:11-13:20, 13:05-13:10, 17:19 -17:27, 38:21-38:32. See especially the evidence of Witness B, a JNA soldier positioned at Zarkovica during the attack on the Old Town on 6 December 1991. He testified that, on 6 December 1991, he observed some flags flying over the buildings. He personally did not know what the flags meant, but the others were saying that those flags were there to protect the section of the town in the sense that that portion of the town was not to be targeted, T 5047-5048. Colin Kaiser further testified about the raising of three UN flags over three bastions of the walls of the Old Town on 27 November 1991, T 2384-2387.
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para.599:
599. With respect to the mens rea requisite of destruction or devastation of property under Article 3 (d), the jurisprudence of this Tribunal is consistent by stating that the mens rea requirement is intent (dolus directus ).1512 The Trial Chamber holds that as religious institutions enjoy the minimum protection afforded to civilian objects the mens rea requisite for this offence should be equivalent to that required for the destruction or devastation of property under Article 3 (b).1513 The Trial Chamber, therefore, is of the opinion that the destruction or wilful damage done to institutions dedicated to religion must have been either perpetrated intentionally, with the knowledge and will of the proscribed result or in reckless disregard of the substantial likelihood of the destruction or damage.
1512. Kordić Trial Judgement , para. 361; Blakić Trial Judgement, para. 185; Naletilic Trial Judgement , para. 605. International instruments on the protection of religious institutions (cultural property) are silent on the matter. The only provision which requires wilful commission is Article 85 (4)(d) of Additional Protocol I which elevates the destruction of recognised historic monuments, works of art or places of worship to a grave breach and thus to a war crime (Article 85, paragraph 5), upon the presence of specific requirements.
1513. See IX.D.1.(b), Wanton destruction of cities, towns and villages, or devastion not justified by military necessity.
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 361:
361. [ ] The destruction or damage is committed wilfully and the accused intends by his acts to cause the destruction or damage of institutions dedicated to religion or education and not used for a military purpose. [ ]
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para 185:
185. The damage or destruction must have been committed intentionally to institutions which may clearly be identified as dedicated to religion or education and which were not being used for military purposes at the time of the acts. [...]
B. Evidentiary Comment
In Brđanin the ICTY Trial Chamber held (Judgment, para. 599) that in respect of the equivalent offence under article 3(d) of the ITCY statute, the mens rea requirement is that:
However so far the jurisprudence of the ICTY has dealt with destruction or damage perpetrated intentionally.
The use of a specific intent requirement in article 8(2)(b)(ix) seems to indicate that recklessness may be insufficient under the Rome Statute.
5.1. Evidence showing that the protected building was intended to be the object of the attack
P.20. Evidence indicating the intent to cause the destruction or damage of protected objects.
P.20.1. Evidence of persistent shooting or high frequency weapon use.
A. Legal source/authority and evidence:
Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, paras. 274, 435, 551, 555:
274. [ .] The Trial Chamber is not convinced by the Defences argument that Velic was accidentally hit. After he stepped out of the cabin, the loader was struck by dozens of bullets.724 [ ]
724 - Velic said that the gunfire had totally damaged the tyres, the front part of the loader and the reservoir, all which had to be replaced, Velic, T. 2807-8, 2813.
435. [ ]With respect to another instance of shelling, an UNPROFOR report indicated that UN representatives had recorded over 400 artillery and mortar impacts on a single day in 1993 in the general area of Stari Grad.1527 The authors of the report concluded that There is no doubt that civilians [in that area] were deliberately targeted [because of the] unusually high volume of fire [there], which would seem to have no military value.[ ]1528
1527 - P925 (UNPROFOR report admitted under seal).
1528 - Id. The UNPROFOR report implied that the party responsible for this shelling was the SRK.
551. [ ]Witness K recounted how, while Witness G was being taken to cover by a neighbour and herself - both also dressed in civilian clothing- the three of them were repeatedly shot at, one or more perpetrators waiting for them to stand up and run several meters before shooting again. The Trial Chamber is satisfied beyond reasonable doubt that in view of Witness Ks account of the incident, one or more perpetrators were deliberately targeting civilians. [ ]
555. [ ] The shooting continued while they ran for shelter to the orchard, indicating that they were the intended target. And despite their having moved into the orchard, the shooting continued. [ ]
[B. Evidentiary comment:]
P.20.2. Evidence of a motive for intentionally attacking the protected objects
A. Legal source/authority and evidence:
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000 paras. 425 426:
425. The methods of attack and the scale of the crimes committed against the Muslim population or the edifices symbolising their culture sufficed to establish beyond reasonable doubt that the attack was aimed at the Muslim civilian population. An ECMM observer noted that, further to his visit to Ahmici on 22 April 1993, "apart from the systematic destruction and the religious edifices that had been dynamited, what was most striking was the fact that certain houses remained intact, inhabited even, and one wondered how those islands had been able to survive such a show of violence" 890. Several international observers who went to the village a few days after the attack on Ahmici reported finding "a phenomenon of a ferocity and a brutality almost impossible to describe" 891. The accused went to Ahmici on the morning of 27 April and noted the scale of the damage: houses burnt , livestock slaughtered and an entirely deserted village 892. He conceded, both to the Commission on Human Rights representatives on 5 May 1993893 and in his testimony894 before the Trial Chamber that crimes had been committed in Ahmici.
426. Witness Baggesen said of the attack on Ahmici: "We think that this operation, military operation against the civilian population was to scare them and to show what would happen to other villages and the Muslim inhabitants in other villages if they did not move out. So I think this was an example to show"895, especially given what Ahmici symbolised for the Muslim community.
890 - PT p. 23584.
891 - Witness Thomas, PT pp. 2672 and 2674.
892 - Witness Blakic, PT pp. 19036-19037.
893 - P 184; witness Marin, PT p. 13631.
894 - Witness Blakic, PT pp. 19025-19026: "I toured a part of the village. I saw burned houses in the village, and there was still some embers. They may have been burned during the night or set fire to. I saw the minaret and mosque and other signs of destruction".
895 - Witness Baggesen, PT of 22 august 1997 p. 1935.
[B. Evidentiary comment:]
P.21.1. Evidence indicating the absence of military activity/targets in the area.
A. Legal source/authority and evidence:
Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, paras. 251, 256, 269, 287, 517:
251. The account of the incident shows that the victim and her family were near the traffic lights of the intersection, and had not yet reached the protection of the containers, when the first shot was fired. The second shot, which killed the victim, was fired as they crossed the intersection behind the barrier of containers. [ ] the witness did not speak about an exchange of fire but about the sound of a first and then second shot that hit the victim. Since the exact trajectory of the bullet which struck the victim is unclear from the evidence,602 the Majority cannot exclude that the victim was hit by a bullet that ricocheted. Nevertheless, the Majority understands the evidence to show beyond reasonable doubt that no military activity which could have accounted for the shooting was underway at the time of the incident in the vicinity of Marshal Tito Barracks and that the victim and her family were being targeted deliberately.
602 - Sabri Halili believed that the bullet that struck his mother-in-law had probably ricocheted from the asphalt, then hitting Ms. Konjhodzic. Sabri Halili, T. 2716. Milada Halili believed her mother had been directly targeted and had not been hit by a bullet that ricocheted, because the intersection where her mother was shot was visible from the skyscrapers in Grbavica, Milada Halili, T. 2757.
256. The Defence submitted that neither the tram nor its passengers were deliberately targeted.620 It argued that there was daily combat activity in the area, so the tram could have been hit by a stray bullet or by a bullet that ricocheted.621 The testimony of the witnesses indicated that public transport was operational that day because a cease-fire was in force.622 Witness M testified that the morning had been calm and that there had been no incidents.623 The tram was not crowded at the time of the shooting and was not transporting any soldiers or any kind of military equipment.624 No military vehicles were present in the close vicinity of the location of the incident.625 The evidence does not suggest that any military activity was underway in the area. The Trial Chamber finds that the only reasonable inference to be drawn from the evidence is that the tram and its passengers were deliberately targeted.
620 - Defence Final Trial Brief, para. 387. It claims that ?igf the shooter had such an intention, he would shoot at the window where he could, possibly, see the ones who were sitting or standing, i.e. the shooter would not target the lower part of a tram which, objectively, is hard to cause any sort of consequence, except to damage the tram just a bit. Defence Final Trial Brief, para. 383.
621 - Defence Final Trial Brief, paras 386, 387, 389.
622 - Witness M, T. 3340; Jusic, T. 3223; Vigodic, T. 4242; P3656 (set of 8 photographs taken by the police). People can be seen walking around on the street at the Pofalici stop on a photograph shown in court (See P3656).
623 - Witness M, T. 3340.
624 - Witness M, T. 3341-2, 3355; Jusic, T. 3227, 3241. In a statement given to OTP in 1995, Witness M had stated that there were ABiH and UNPROFOR soliders at the Pofalici stop. During cross-examination, she testified that she did not recall the presence of any ABiH soldiers at this stop and said that, if any, there were two or three soldiers there, T. 3365-6, 3368. She said that the Pofalici stop was two stops further from where the tram was shot, T. 3370.
625 - Jusic, T. 3240.
269. The Defence submits that the victims were not deliberately targeted.693 Nafa Taric testified that there was no on-going military activity at the time of the incident.694 She said that there were neither soldiers, uniformed personnel nor any military equipment present in the immediate vicinity.695 According to the witness, the closest ABiH military command post was located approximately 500 to 800 metres from the Hrasno neighbourhood.696 The fact that the two victims were shot at as they emerged from behind the containers, and that a second shot was fired at them as they lay wounded, reveals that they were deliberately targeted and not wounded by accident.
693 - Defence Final Trial Brief, para. 174. The Defence alleges that it was not possible for the perpetrator to have had such a quick reaction and fire at the victims as soon as they left the protection of the containers, Defence Final Trial Brief, para. 174.
694 - Nafa Taric, T. 3131.
695 - Nafa Taric, T. 3133.
696 - Nafa Taric, T. 3183. She believed the confrontation lines were about one kilometre away, T. 3165.
287. The Defence submitted that Witness AG was not deliberately targeted from SRK positions but was wounded by a stray bullet from combat activity.776 The evidence shows, on the contrary, that there was no military activity in the area at the time of the incident. Witness AH testified that there was a cease-fire in place that day, and that she and her children had gone out precisely because there was no fighting.777 Witnesses AG and AH said that no soldiers or military vehicles were in the vicinity of the incident.778 No shooting was heard prior to the moment of the incident.779 Several children were playing nearby780 and the neighbourhood restaurant was open.781 The Trial Chamber therefore finds that the victim was not hit by a stray bullet but was deliberately targeted.
776 - Defence Final Trial Brief, paras 437-8. According to the Defence, the fact that only two shots were fired and that no attempt was made by the perpetrator to hit other people present in the area indicates that the victim was not intentionally targeted, Defence Final Trial Brief, para. 435. Dusan Dunjic, the medical forensic expert for the Defence indicated that, due to the absence of information such as a detailed description of the nature of the wound sustained by the victim and his body position at the time of the incident, it was not possible to determine the type of projectile responsible for his injury or whether he was directly targeted or hit by a bullet that ricocheted, D1921 (Report by medical forensic expert for the Defence Dusan Dunjic), pp 44-46.
777 - Witness AH, T. 6267.
778 - Witness AG, T. 6298, 6324; Witness AH T. 6248-9. Witness AG did not notice any military equipment nearby or any military vehicles parked in the parking lot in front of the shop, Witness AG, T. 6291, 6319. Witness AH testified that she did not see soldiers inside the restaurant when she went back for the bicycle, Witness AH, T. 6270.
779 - Witness AG, T. 6288. He said that, because he was in a state of shock after being wounded, he did not recall whether there was any shooting after he was injured, T. 6288.
780 - Witness AG recalled there were some 5 or 6 children playing very close to him at the time, and thought they probably ran away afterwards, Witness AG T. 6288, 6322. See also D80, Witness AH, T. 6277.
781 - The Official Note of the Centre of Security Department, drafted by Kucanin, indicated that there were 10 people inside the restaurant at the time of the shooting, but that no one there was injured, P2790 (Official Note of the Centre of Security Department dated 22 July 1994 signed by Kucanin).
517. Although the distance of approximately 1,111 metres between Spicasta Stijena and the site of the incident1785 is significant, the Majority of the Trial Chamber is satisfied beyond reasonable doubt that Witness E was targeted deliberately. There was no military equipement or personnel near Witness E at the time and place of the incident.1786 The victim, a child, was kneeling to play with flowers at the time of the incident so that the exposure of her body to a stray bullet fired over such a distance would have been small. In addition, although the two attacks might have been unrelated, some time after she was shot, Witness E along with others was targeted again from the direction of Spicasta Stijena as she was being taken to the hospital.
1785 - Hinchcliffe, T. 12959. Witness E indicated on map P3243 the approximate position of her house in relation to [picasta Stijena. Witness E, T. 4072. Although that map does not include an explicit scale, the gridding appearing thereon suggests that the distance between the house and [picasta Stijena is a little over 1 kilometre, in substantial agreement with the measurement of Jonathan Hinchliffe. Witness E herself estimated that distance to be 2-3 kilometers by road, but added that the distance as the crow flies was probably less, Witness E, T. 4094.
1786 - Witness E, T. 4069 and 4099-4100. Witness E recalled that people, including at times soldiers, would regularly pass through the yard of her house, Witness E, T. 4052. She did not rule out that a couple of soldiers might have passed through the yard earlier during the day, but she was alone in the garden at the time of the incident, Witness E, T. 4052 and 4069.
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, paras. 203 212:
203. The firing positions described in the preceding paragraphs are located various distances from the Old Town. All are outside the Old Town. Some of them are so remote from the Old Town that any attempt to neutralise them by the JNA forces, even using the most imprecise weapons, could not affect the Old Town. As regards the positions which are closer to the Old Town, the Chamber heard expert evidence as to which positions in the vicinity of the Old Town, if targeted by the JNA, would give rise to a risk of incidental shelling of the Old Town.
204. Jozef Poje, a ballistics expert for the Prosecution, assessed the dispersion patterns for mortar shells targeted at various positions in the vicinity of the Old Town. It was assumed by Mr Poje that they would be fired at from Zarkovica, Bosanka, Uskoplje and Srdj by 82mm and 120mm mortars. The targets included Ploce, Bogisica Park, a position located about 150-200 metres north of the Old Town at the foot of the cable car, and Gradac Park. The expert concluded that the targeting of any of those positions by the JNA forces would not lead to shells falling on the Old Town, except for the one position at the foot of the cable car to the north of the Old Town, if fired at from Uskoplje with a 120mm mortar.701 This evidence was based on JNA dispersion tables. Some of the target and firing positions assumed by Mr Poje are not relevant because the evidence does not establish that they were targets or firing points respectively.702 While both 82mm and 120mm dispersion patterns are given for each firing position, no doubt out of caution, the evidence shows that only one or other was used at each firing point. The measurement of distances of target points to the Old Town was not accurate in every case,703 which has an effect in one case in particular the foot of the cable car704 ? and the Chamber notes that no account was taken of weather conditions on 6 December 1991,705 whereas weather conditions can affect the dispersion pattern of shells as they land in the target area.
205. The Defence called another ballistics expert, Janko Vilicic. The Chamber observes that it is quite difficult to relate the factual basis on which this expert formed his opinions to the evidence on which the Chamber must decide this case. He has, for example, identified, as JNA firing positions for mortars, locations which are not mentioned in the evidence led before the Chamber, and he has not dealt with some positions which are shown to have been JNA firing positions on 6 December 1991.706 As a further example, critical to the factual basis on which he has reached a material opinion are calculations or deductions he has made about the amount of ammunition that he believes must have been expended by various JNA firing positions on the day. These deductions appear to be based, inter alia, on a witness statement which is not in evidence.707 Further, a war diary referred to by the expert in this connection, does not contain information on which the expert appears to have based one of his conclusions. Mr Vilicic relies on that diary to show the number of shells fired from three JNA positions,708 despite the fact that the diary makes no reference to firing at any of the alleged Croatian positions mentioned in his report. The diary provides detailed figures only in respect of the Croatian positions at Lazaret, the Neptun Hotel, Libertas Hotel, Nuncijata and Sustjepan.709 The experts conclusion based on these figures was that the number of shells was considerably lower than that required by JNA norms for neutralising firing positions.710 Mr Vilicic relies on the evidence of Captain Negodic to show that the presence of Flying Charlie vehicles in the vicinity of the Old Town increased the risk of projectiles landing in the Old Town,711 whereas that witness ruled out the possibility of such vehicles being used by the Croatians.712 One critical factual basis for his most material opinion is that at no time on 6 December 1991 did JNA forces ever target the Old Town.713 This, in the Chambers finding, is an entirely false factual basis.
206. Mr Vilicic also placed very considerable reliance on the weather conditions which he assumed prevailed on 6 December 1991. It was his opinion that on 6 December 1991, these significantly affected the dispersion patterns for mortar shells. However, he did not have actual weather details for 6 December 1991.714 Instead, his opinion in this respect is based on assumed weather conditions which are based on generally prevailing or average weather conditions for the month of December.715 Wind conditions in particular affect his calculations. In respect of the actual wind conditions on the day, there are clear visual indications in the video evidence of wind conditions quite different from those assumed by Mr Vilicic for his calculations.716 The Chamber points out that the expert himself regarded the wind direction as one of the most important meteorological conditions and wrote in his report that wrongly determined weather conditions could cause errors in preparing initial firing data.717
207. It was assumed by Mr Vilicic that JNA forces fired with 120mm mortars from Ledenica, with 76mm ZIS cannons from the Vrastica sector, with 82mm mortars from the Dubac and Rajcevici sector, and with 82mm mortars from Strincijera. His report considers as targets hypothetical Croatian positions at Srdj, Bogisica Park, Gradac Park, as well as positions located 200 metres east of Ploce, 100 metres north of the Old Town and 500 metres west of the Old Town.718 It was the opinion of Mr Vilicic that on 6 December 1991, given the meteorological conditions he had assumed, firing with mortars from those assumed JNA firing positions at any target which was less than 500 metres from the Old Town would lead to at least some of the shells landing in the Old Town.719 In his opinion, 500 metres was the minimum safe distance for a target.720 It followed in his opinion that by having firing positions within 500 metres of the Old Town, the Croatian defenders imperilled the Old Town. His opinion went even further. It was his opinion that all the damage to the Old Town on 6 December 1991 could have been caused by JNA mortars targeted at Croatian military positions outside the Old Town, but within 500 metres of it. In other words, it is the effect of his opinion that none of the damage to the Old Town was intended by the JNA. It did not result from intentional shelling of the Old Town, but, in the conditions prevailing, occurred because the Croatian defenders imperilled the Old Town by the placement of their military positions.
208. The Chamber is not able to accept the opinions of Mr Vilicic. For the reasons already indicated they are based, in material respects, on assumed factual bases which do not accord with the evidence. In addition to those matters, his opinions as to where JNA mortar shells would have predominantly fallen in the Old Town do not accord with this Chambers findings as to the actual distribution of damage in the Old Town.721 Further, the extent of damage is far greater than is attributable to the number of shells he assumes the JNA fired that day. And his assumptions do not allow for any deliberate targeting of the Old Town, or of shipping in the old port immediately outside the Old Town, by the JNA on 6 December 1991, whereas the evidence has established that each of those things occurred.
209. There are even further reasons which caution against the acceptance of Mr Vilicics opinions. Even if it is assumed that all the Croatian military positions relied on by Mr Vilicic, which were within 500 metres of the Old Town, actually existed on 6 December 1991, which is not the finding of the Chamber, the evidence indicates that some of them were not known to the JNA on the day, or if known were not considered worthy of serious attention. Croatian firing positions at the cable car and in the Ploce area, east of the Old Town, were mentioned only by the officer in charge of the Croatian artillery, Captain Negodic, while the former JNA commanders and witnesses did not refer to them in their testimony.722 Other positions in close proximity to the Old Town are said to have been observed by some of the JNA witnesses.723 But, they were not regarded as of primary concern, since they do not appear in JNA reports and records. Only the report prepared by Captain Nesic makes reference to the position at the tunnel near the Lovrijenac fortress, which in Captain Nesics testimony was in Gradac Park.724 However, even if the report were to be believed, which is not the position of the Chamber, it provides that the number of shells fired at that position was five.725 Five is far less than required, according to the references referred to by Mr Vilicic, for neutralising an enemy weapon. Therefore, Mr. Vilicics calculations in this respect were on the basis of far more JNA shells directed at this position than five. As pointed out above, there were no attempts to fire at the Flying Charlie allegedly observed by Captain Nesic,726 the presence of which, in the opinion of Mr Vilicic, increased the number of impacts of mortar shells within the walls of the Old Town. The attackers seem to have been much more focused on the firing positions well outside the Old Town, especially near the Libertas Hotel and at Babin Kuk, and also at Solitudo or Lazaret.727 The Chamber considers that in view of these matters the issue whether the targeting of firing points in close proximity to the Old Town led to the damage on 6 December 1991 becomes theoretical rather than real.
210. It should also be noted that in an apparent attempt to be of as much assistance as possible to the Chamber, the Prosecution expert, Mr Poje, assumed that there was targeting by the JNA of each of the Croatian military positions identified in his report. That is not shown to be the case. The reports of both experts should not be taken as evidence that the Croatian positions assumed in those reports were in fact targeted. In the case of the Defence expert, Mr Vilicic, but not in the case of the Prosecution expert, Mr Poje, Mr Vilicic went on to express opinions which assumed that there was targeting of those Croatian positions, i.e. the opinion that all the damage to the Old Town could have been caused by JNA mortars targeted at Croatian positions outside the Old Town. The evidence does not support that assumption, nor does it provide a foundation for the view that all of them might have been targeted. As Mr Poje did not venture into such issues, his report is not affected in this respect. On another aspect, the Chamber accepts that regard is appropriate to the weather conditions on 6 December 1991 in assessing the dispersion to be anticipated of mortar shells fired at specific targets. As this is not apparently taken into account by Mr Poje, his opinion cannot be accepted without a degree of reservation. There are other differences between the approaches of the two experts but, in the Chambers appreciation of the issues they raise, what has been considered already is sufficient to indicate why neither report is able to be directly applied by the Chamber. While Mr Pojes report can only be accepted by the Chamber with reservation, the Chamber finds it is unable to accept the opinions of Mr Vilicic because there are so many matters on which his report is based which are not established, or which are contradicted by the evidence.
211. In the Chambers finding, the most that can be made of the evidence of the experts is that if Croatian military positions, outside, but in close proximity to, the Old Town, had in fact been targeted by JNA mortars on 6 December 1991, it is possible that some of the shells fired might have fallen within the Old Town. For reasons already given, few of the possible Croatian military targets considered by the experts were the subject of JNA targeting by mortars, and none of them were the subject of intensive or prolonged firing. In view of the above-mentioned shortcomings of the expert reports and the differences between them, the Chamber is unable to rely exclusively on one or the other in determining which targets in close proximity to the Old Town could give rise to a risk of incidental shelling of the Old Town. Given the seriousness of its reservations in respect of the report of Mr Vilicic and the disparity between his opinions and those of Mr Poje, the Chamber is not able to accept his opinion that targeting a position less than 500 metres from the Old Town walls could result in mortar shells landing in the Old Town on 6 December 1991. In any event, the Chamber observes that both expert reports almost concordantly state that the alleged positions at the Bogisica and Gradac Parks, which are the only two positions in the vicinity of the Old Town identified by some JNA witnesses, could not pose a significant threat to the Old Town. Even the report of Mr Vilicic states that the shelling of the Bogisica Park would not result in shells landing in the Old Town once corrections had been made to the firing data.728 On the other hand, the only target in close proximity to the Old Town, which both experts regarded as dangerous to the Old Town, was the position at the foot of the cable car.729 This was referred to only in the testimony of Captain Negodic. Neither the JNA witnesses nor the JNA reports or other documents make reference to that position. There is no evidence that this position was actually targeted by the JNA on 6 December 1991.
212 .At trial the suggestion was put to some witnesses that the shelling of the Old Town resulted from errors made by the Croatian defenders firing in particular from the area of Babin Kuk. However, the Chamber notes, for example, that the firing position at the Solitudo camp is located at some distance from the Old Town and the direct line from there to Zarkovica does not pass over the Old Town but to the landward side of it.730 Therefore, this suggestion does not appear to be a practical reality. As regards the position under the bridge at Iva Vojnovica Street, the ZIS-cannon placed there could not successfully target the Old Town, because it is a direct line-of-sight firing weapon and the Old Town cannot be seen from that position.731 The possibility of the Croatians firing erroneously into the Old Town was directly discounted by Captain Negodic, who pointed out that the trajectories of missiles fired towards Srdj and Zarkovica did not pass over the Old Town.732 The witness also ruled out a suggestion that any of the Croatian units or individuals would have fired into the Old Town intentionally.733 Jozef Poje was of a similar view as regards the trajectories and described the probability of erroneous targeting of the Old Town as very small and above all theoretical.734 The Chamber regards the suggestion of intentional targeting to be extreme and so improbable or theoretical that it can be disregarded. With regard to the suggestion that error by the Croatian artillery caused damage to the Old Town, the only support in the evidence is an opinion expressed by the Defence expert, Mr Vilicic, that one shell hole in the pavement of Stradun, near the St Blaise church, was caused by a mortar shell from the west. Mr Vilicic noted that debris had been thrown to the west of the hole, while concrete slabs were raised on the eastern side of the hole.735 He was of the view that the material coming from the hole was thrown backwards to the side where the angle of the mortar projectile was smaller relative to the ground. On this basis Mr Vilicic concluded that the shell must have come from the west.736 The Chamber approaches this testimony with caution, as the expert did not inspect the place himself and relied only on video shots, nor was there any certainty that the material around the hole had not been moved before the video had been made.737 This is of particular importance in view of the evidence of extensive cleaning-up operations after the shelling,738 some evidence of which in that vicinity can be seen in the video. Importantly, this proposition of Mr Vilicic was not put to the Prosecution expert, so that there has been no opportunity for the Prosecution expert to assist the Chamber on this issue. The Chamber considers that, given its weak foundation and the abundance of evidence to the contrary, this proposition must be disregarded.
701. Jozef Poje, T 6208-6210; 6217 -6218; 6222; Exhibit P184/2a ; 184/4.
702. Jozef Poje admitted that if there were no 120mm mortars located at Zarkovica, Bosanka and Srdj, part of his conclusions would be irrelevant, T 6318.
703. Jozef Poje, T 6399-6410; 6402 -6404; 6405.
704. Jozef Poje, T 6402-6404.
705. Jozef Poje, T 6321.
706. Exhibit D115, pp 5-6.
707. Exhibit D115, fn 66.
708. Exhibit D115, p 89.
709. Exhibit D96, p 68.
710. Exhibit D115, p 89.
711. Exhibit D115, pp 88, 97 and 98.
712. Captain Negodic, T 5234; 5344 -5345; 5367.
713. Exhibit D115, p 98; Janko Vilicic, T 8365.
714. Janko Vilicic, T 8317.
715. Exhibit D115, Annex 5.
716. The expert assumed that there was a Bura wind on 6 December 1991, T 8317-8319. The main direction of the Bura wind is from north-east to south-west, T 8405, whereas the video evidence available to the Chamber shows a wind blowing from the south to the north, Exhibit P78; Exhibit P66 at 31:19.
717. Exhibit D115, p 42.
718. Janko Vilicic, T 8305; 8345; 8346 and 8356.
719. Janko Vilicic, T 8349-8350.
720. Janko Vilicic, T 8348-8349.
721. Exhibit D115, pp 94a and 94b ; see infra the Chambers findings as to the objects damaged on 6 December 1991, paras 316-330; see Annex I.
722. Captain Pepic even testified that he did not observe any firing from the slopes of Srdj in the area of the Old Town, T 7501.
723. Bogisica Park and Gradac Park, see supra paras 201-202.
724. Exhibit D113; Captain Nesic, T 8174 and 8272.
725. Exhibit D113.
726. Captain Nesic, T 8274.
727. Captain Pepic, T 7527-7530; Exhibit D113; Exhibit D96, pp 67-75.
728. Exhibit D115, pp 51-53; 59-60.
729. Exhibit P184/5. The report of Mr Vilicic does not refer to the foot of the cable car itself, but to a position located 100 metres north of the Old Town. However, the location of that position is very close to that of the cable car. Exhibit D115, pp 77-85; T 8345.
730. Exhibit C1/1, p 10.
731. Exhibit C1/1, p 12.
732. Captain Negodic, T 5276.
733. Captain Negodic, T 5276.
734. Jozef Poje, T 6232; Exhibit P184/1, p 27.
735. Exhibit P78 at 19:27; Exhibit P145 at 00:58.
736. Janko Vilicic, T 8361-8363; 8369-8380; 8500-8504.
737. Janko Vilicic, T 8380-8381.
738. See supra, para 178.
Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, paras. 508, 537:
508. The witnesses indicated further that, despite occasional outgoing ABiH fire from hospital ground, the SRK attacks were in fact directed at the hospital and served no military purpose. As result of the incident reported to Cutler, Harding re-visited the Kosevo hospital in January 1993 to assess whether it was being shelled as result of SRK counter-battery fire, or deliberately targeted.1740 He could not find any of the distinctive traces usually left by mortars.1741 On the basis of his observations at the Hospital, Harding concluded that:
1740 - Mole, T. 11140; Harding, T. 4371-2.
1741 - Harding, T. 4371-3.
1742 - Harding, T. 4372.
537. The Majority is also satisfied that Anisa Pita was targeted deliberately. The argument that a stray bullet could have covered the distance from the area of Baba Stijena to the Pitas house along a narrow line of sight, without colliding with surrounding obstacles such as houses, to hit a small child is unpersuasive.
[B. Evidentiary comment:]
5.2. Evidence that the perpetrator knew the building had protected status
P.22. Evidence inferred from a circumstance.
P.22.1. Evidence that the special/protected nature of the object of the attack was well known.
A. Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 329:
329. As to the mens rea element for both crimes the Chamber makes the following observations. In relation to Count 4, the Chamber infers the direct perpetrators intent to destroy or damage property from the findings that the attack on the Old Town was deliberate, and that the direct perpetrators were aware of the civilian character of the Old Town.994 Similarly, for Count 6, the direct perpetrators intent to deliberately destroy cultural property is inferred by the Chamber from the evidence of the deliberate attack on the Old Town,995 the unique cultural and historical character of which was a matter of renown, as was the Old Towns status as a UNESCO World Heritage site.996 As a further evidentiary issue regarding this last factor, the Chamber accepts the evidence that protective UNESCO emblems were visible, from the JNA positions at Zarkovica and elsewhere, above the Old Town on 6 December 1991.997
994. See supra, paras 214; 285-288.
995. See supra, para 214.
996. See supra, para 21.
997. The video evidence shows clearly visible emblems indicating that the buildings and the structures within the Old Town were protected, Minceta Fort, Exhibit P78 at 13:11-13:20, 13:05-13:10, 17:19 -17:27, 38:21-38:32. See especially the evidence of Witness B, a JNA soldier positioned at Zarkovica during the attack on the Old Town on 6 December 1991. He testified that, on 6 December 1991, he observed some flags flying over the buildings. He personally did not know what the flags meant, but the others were saying that those flags were there to protect the section of the town in the sense that that portion of the town was not to be targeted, T 5047-5048. Colin Kaiser further testified about the raising of three UN flags over three bastions of the walls of the Old Town on 27 November 1991, T 2384-2387.
Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, para. 497:
497. [ ] Witnesses called by both the Prosecution and the Defence provided uncontested testimonies that Kosevo Hospital was a widely known civilian medical facility.1695
1695 - Many witnesses confirmed that either they or persons they knew were treated at the hospital during the conflict in Sarajevo. See for example Witness L, T. 2524, 2570; Jusovic, T. 4150; Bokailo, T. 5052; Witness AK-1, T. 5484; Dzonko, T. 5648; Kapetanovic, T. 5769; Pita, T. 5915; Fazlic, T. 6611-2; Gavranovic, T. 6715; Menzilovic, T. 7045; Mehonic, T. 7331; Witness AI, T. 7666; Ljusa, T. 7866-7, 7879; Kapetanovic, T. 7957; Arifagic, T. 12713; Witness DP51, T. 13627.
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 329:
329. As to the mens rea element for both crimes the Chamber makes the following observations. [ ] As a further evidentiary issue regarding this last factor, the Chamber accepts the evidence that protective UNESCO emblems were visible, from the JNA positions at Zarkovica and elsewhere, above the Old Town on 6 December 1991.997
997. The video evidence shows clearly visible emblems indicating that the buildings and the structures within the Old Town were protected, Minceta Fort, Exhibit P78 at 13:11-13:20, 13:05-13:10, 17:19 -17:27, 38:21-38:32. See especially the evidence of Witness B, a JNA soldier positioned at Zarkovica during the attack on the Old Town on 6 December 1991. He testified that, on 6 December 1991, he observed some flags flying over the buildings. He personally did not know what the flags meant, but the others were saying that those flags were there to protect the section of the town in the sense that that portion of the town was not to be targeted, T 5047-5048. Colin Kaiser further testified about the raising of three UN flags over three bastions of the walls of the Old Town on 27 November 1991, T 2384-2387.
Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, para. 245 footnote 575:
575. Nakas, T. 1126. After the first shelling of the hospital on 13 May 1992, the medical staff placed a large white flag with the Red Cross emblem in the southern section of the hospital facing Trebevic and the hill of Vrace, Nakas, T. 1123, 1182; Harding, T. 4348-50. The staff later took down this flag in September 1992 because exposure to gunfire had reduced it to tatters, Nakas, T. 1123-4.
[B. Evidentiary comment:]
