Table of contents:
P.15. Evidence inferred from an utterance, a document, or a deed.
P.15.2. Evidence inferred from the perpetrators presence during the forcible displacement.
P.15.3. Evidence inferred from the perpetrator ordering or planning forcible displacement.
P.16. Evidence inferred from a circumstance.
P.16.5. Evidence of the perpetrators knowledge of what constitutes a civilian population.
P.16.6. Evidence inferred from the clothing of the person.
P.16.7. Evidence inferred from the population being unarmed.
P.16.9. Evidence inferred from the non-existance of military objects in the attacked area.
Element:
P.15. Evidence inferred from an utterance, a document, or a deed.
A. Legal source/authority and evidence:
Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, paras. 339, 422, 436:
339. General Krstić attended two of the three meetings convened by General Mladic at the Hotel Fontana dealing with issues relating to the fate of the civilian population from Srebrenica. The first meeting he attended was held on 11 July 1995 at 2300 hours and the second on 12 July 1995 at 1000 hours.899 At these meetings General Krstić represented the Drina Corps and he sat next to General Mladic, although he did not speak.900
899. Krstić, T. 6208-6209, 6213-6214.
900. Mandzic, T. 974, 987-989, 1042; Witness B, T. 886, 925-926; P 40.
422. The Prosecutions case against General Krstić was based on layer upon layer of circumstantial evidence as well as critical pieces of direct evidence, which reveals his developing knowledge of, and participation in, the executions. Although, on 11 or 12 July 1995, he had been appointed as Commander of the new VRS operation against Zepa, General Krstić remained informed of events occurring back in Srebrenica. General Krstić attended two meetings at the Hotel Fontana with General Mladic, relating to the fate of the Bosnian Muslim civilians from Srebrenica. Furthermore, he was involved in organising the transport of the Bosnian Muslim civilians from Potocari and, on 12 July 1995, was present in Potocari while the transportation operation was being carried out. General Krstić remained fully informed of matters relating to the Bosnian Muslim column, including the capture and detention of the prisoners.
436. As a result of his attendance at the Hotel Fontana meetings on 11 and 12 July 1995, General Krstić was fully appraised of the catastrophic humanitarian situation confronting the Bosnian Muslim refugees in Potocari and he was put on notice that the survival of the Bosnian Muslim population was in question following the take -over of Srebrenica (para. 343).
[B. Evidentiary comment:]
P.15.2. Evidence inferred from the perpetrators presence during the forcible displacement.
A. Legal source/authority and evidence:
Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Judgement (TC), 17 January 2005, para. 758:
758. The Trial Chamber further finds that Colonel Blagojevic knew of the assistance rendered by members of his brigade, and that the acts undertaken by them assisted in the commission of forcible transfer. As discussed above, Colonel Blagojevic, as a commander involved in the Krivaja 95 operation, knew the objective and result of that operation: the elimination of the Srebrenica enclave. This objective necessarily entailed removing the Bosnian Muslim population from that area. Over the course of 12-14 July, Colonel Blagojevic, through his presence at the IKM, in Srebrenica town and in Bratunac, would have seen for himself the manifestation of that objective as busload after busload of Bosnian Muslim women, children and elderly travelled from Potocari to Kladanj through Bratunac, and then the temporary detention of the Bosnian Muslim men in Bratunac pending their transfer out of the area. He further knew of the role played by members of his brigade in this operation. Colonel Blagojevic knew that the forcible transfer was carried out on discriminatory grounds, as the objective of the forcible transfer was to remove the Bosnian Muslims from that part of Bosnia.
Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, paras. 354, 422, 465, 609:
354. The Trial Chamber finds that General Krstić was in Potocari for between an hour and two hours in the afternoon of 12 July 1995 and that he was present with other VRS officers, including General Mladic, overseeing the bussing of the Bosnian Muslim women, children and elderly. The Trial Chamber rejects the evidence given by General Krstić that he was only present for a few minutes at the Potocari checkpoint and that he had no knowledge of anything that was occurring in Potocari involving the Srebrenica refugees. As a result of his presence in Potocari on the afternoon of 12 July 1995, General Krstić must have known of the appalling conditions facing the Bosnian Muslim refugees and the general mistreatment inflicted by VRS soldiers on that day.
422. The Prosecutions case against General Krstić was based on layer upon layer of circumstantial evidence as well as critical pieces of direct evidence, which reveals his developing knowledge of, and participation in, the executions. Although, on 11 or 12 July 1995, he had been appointed as Commander of the new VRS operation against Zepa, General Krstić remained informed of events occurring back in Srebrenica. General Krstić attended two meetings at the Hotel Fontana with General Mladic, relating to the fate of the Bosnian Muslim civilians from Srebrenica. Furthermore, he was involved in organising the transport of the Bosnian Muslim civilians from Potocari and, on 12 July 1995, was present in Potocari while the transportation operation was being carried out. General Krstić remained fully informed of matters relating to the Bosnian Muslim column, including the capture and detention of the prisoners.
465. General Krstić was in Potocari for between an hour and two hours in the early afternoon of 12 July 1995, and he was present with other VRS officers, including General Mladic, overseeing the bussing of the Bosnian Muslim women, children and elderly. As a result of his presence in Potocari, General Krstić must have known of the appalling conditions facing the Bosnian Muslim refugees and the general mistreatment inflicted by VRS soldiers on that day (para. 354).
609. The Trial Chamber has similarly concluded that General Krstić was fully aware of the ongoing humanitarian crisis at Potocari as a result of his presence at the hotel Fontana meeting, on 11 July at 2300 hours, where General Mladic and Colonel Karremans of Dutchbat discussed the urgency of the situation, and, at the meeting on 12 July, when General Mladic decided that the VRS would organise the evacuation of the Bosnian Muslim women, children and elderly. Following this meeting, General Krstić was present himself at Potocari, for one to two hours, thus he could not help but be aware of the piteous conditions of the civilians and their mistreatment by VRS soldiers on that day.1359
1359. Supra paras. 340, 354.
[B. Evidentiary comment:]
P.15.3. Evidence inferred from the perpetrator ordering or planning forcible displacement.
A. Legal source/authority and evidence:
Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 608:
608. The evidence establishes that General Krstić, along with others, played a significant role in the organisation of the transportation of the civilians from Potocari. Specifically, the Trial Chamber has concluded that, on 12 July, General Krstić ordered the procurement of buses and their subsequent departure carrying the civilians from Potocari. At some later stage, he personally inquired about the number of buses already en route. The Trial Chamber has also found that General Krstić ordered the securing of the road from Luke to Kladanj up to the tunnel where the people on the buses were to disembark. It has further been established that General Krstić knew that this was a forcible, not a voluntary, transfer.1358
1358. Supra paras. 340, 344.
[B. Evidentiary comment:]
P.16. Evidence inferred from a circumstance.
A. Legal source/authority and evidence:
Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Judgement (TC), 17 January 2005, para. 758:
758. The Trial Chamber further finds that Colonel Blagojevic knew of the assistance rendered by members of his brigade, and that the acts undertaken by them assisted in the commission of forcible transfer. As discussed above, Colonel Blagojevic, as a commander involved in the Krivaja 95 operation, knew the objective and result of that operation: the elimination of the Srebrenica enclave. This objective necessarily entailed removing the Bosnian Muslim population from that area. Over the course of 12-14 July, Colonel Blagojevic, through his presence at the IKM, in Srebrenica town and in Bratunac, would have seen for himself the manifestation of that objective as busload after busload of Bosnian Muslim women, children and elderly travelled from Potocari to Kladanj through Bratunac, and then the temporary detention of the Bosnian Muslim men in Bratunac pending their transfer out of the area. He further knew of the role played by members of his brigade in this operation. Colonel Blagojevic knew that the forcible transfer was carried out on discriminatory grounds, as the objective of the forcible transfer was to remove the Bosnian Muslims from that part of Bosnia.
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 582:
582. The Trial Chamber is satisfied that the Accused was aware that his public statements and the decisions of the ARK Crisis Staff on disarmament and on setting up the Agency substantially assisted in the commission of deportation and forcible transfer of non-Serbs. The crimes of deportation and forcible transfer were an integral part of the Strategic Plan, which the Accused espoused throughout in the awareness that it could only be implemented through force and fear, and the implementation of which he coordinated in his position as President of the ARK Crisis Staff.1485 He was also aware of the intent of the municipal authorities, the police and the army to deport and forcibly transfer the non-Serb population.
1485. See VI.D., The Role of the ARK Crisis Staff in the Implementation of the Strategic Plan, supra .
Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, paras. 554, 556, 564:
554. The Chamber is satisfied that Vinko Martinovic had command responsibility pursuant to Article 7(3) of the Statute. Members of his unit, including Ernest Takac and Dolma participated in the unlawful transfer and Vinko Martinovic knew about their behaviour and did nothing to prevent it, but rather participated in it. Vinko Martinovic is responsible under Article 7(3) of the Statute. The responsibility of Vinko Martinovic is most appropriately described under Article 7 (1) of the Statute.
556. The Chamber has found that Vinko Skrobo ATG was involved in the unlawful transfer on 13 and 14 June 1993 and that Mladen Naletilic was in an a command position in relation to this unit.1414 The Chamber finds that based on the regular occurrence of such transfers Mladen Naletili c knew or had reasons to know and did nothing to prevent or punish.
1414. See supra paras 91-94 and 100.
564. Vinko Martinovic had command responsibility pursuant to Article 7(3) of the Statute since members of his unit participated in the unlawful transfer and Vinko Martinovic knew about their behaviour and did nothing to prevent it and on occasion actively participated. The responsibility of Vinko Martinovic is most appropriately described as committing unlawful transfer pursuant to Article 7(1) of the Statute.
Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, paras. 335, 422:
335. Despite efforts to distance himself from Krivaja 95, particularly the second phase involving the capture of Srebrenica, the Trial Chamber is left without doubt that General Krstić was no ordinary participant in these events. Regardless of whether or not he was completely sidelined upon the arrival of General Mladic, it is clear that General Krstić was fully informed of the conduct of the operation. Given his position as Deputy Commander/Chief of Staff of the Drina Corps and his prominent role in the drafting and execution of Krivaja 95, the Trial Chamber finds that General Krstić must have known the VRS military activities against Srebrenica were calculated to trigger a humanitarian crisis, eventually leading to the elimination of the enclave. He thus played a leading role in the events that forced the terrorised civilian population of Srebrenica to flee the town in fear of their lives and move toward Potocari, setting the stage for the crimes that followed. From his vantage point at the FCP in the hills of Pribicevac, he had an unobstructed view of the impact of the shelling upon the terrorised Bosnian Muslim residents of Srebrenica town.888 It is inconceivable that a commander so actively involved in the campaign would not have been aware of such an obvious cause and effect relationship between the shelling and the exodus of residents from Srebrenica that was apparent to virtually all UN military personnel in the area.889
888. Butler, T. 4187.
889. See the discussion supra paras. 122-125.
422. The Prosecutions case against General Krstić was based on layer upon layer of circumstantial evidence as well as critical pieces of direct evidence, which reveals his developing knowledge of, and participation in, the executions. Although, on 11 or 12 July 1995, he had been appointed as Commander of the new VRS operation against Zepa, General Krstić remained informed of events occurring back in Srebrenica. General Krstić attended two meetings at the Hotel Fontana with General Mladic, relating to the fate of the Bosnian Muslim civilians from Srebrenica. Furthermore, he was involved in organising the transport of the Bosnian Muslim civilians from Potocari and, on 12 July 1995, was present in Potocari while the transportation operation was being carried out. General Krstić remained fully informed of matters relating to the Bosnian Muslim column, including the capture and detention of the prisoners.
Prosecutor v. Duko Tadić, Case No. IT-94-1-T, Judgement (TC), 7 May 1997, para. 459:
459. The accused's presence at the Trnopolje camp when the surviving prisoners were deported to Croatia is significant evidence with regard to the charge in this subparagraph. The question remains, however, whether when the accused was participating in the seizure and selection of non-Serbs, as established above, he knew that the majority of the prisoners who survived would be deported. His presence at the Trnopolje camp when thousands of prisoners were being removed is relevant in this regard, as is his description of himself in his work report as an "earnest SDS member and an enthusiastic supporter of the idea of creating Republika Srpska", both of which embrace the notion of an ethnically pure Serbian territory. Additionally, in his role as SDS President in Kozarac, he must have had knowledge of the SDS programme, which included the vision of a Greater Serbia. Witnesses including Witness AA provided evidence which not only showed that the accused knew of this goal but that he was an active supporter of it. Witness AA testified to an argument about politics that the accused had with Sefik Sivac shortly before the conflict in which the accused said that the area "would be a Greater Serbia, it would be theirs, and that we, Muslims, will not be there, that there will be no place for us there".
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Judgement (TC), 17 January 2005, para. 758:
758. The Trial Chamber further finds that Colonel Blagojevic knew of the assistance rendered by members of his brigade, and that the acts undertaken by them assisted in the commission of forcible transfer. As discussed above, Colonel Blagojevic, as a commander involved in the Krivaja 95 operation, knew the objective and result of that operation: the elimination of the Srebrenica enclave. This objective necessarily entailed removing the Bosnian Muslim population from that area. Over the course of 12-14 July, Colonel Blagojevic, through his presence at the IKM, in Srebrenica town and in Bratunac, would have seen for himself the manifestation of that objective as busload after busload of Bosnian Muslim women, children and elderly travelled from Potocari to Kladanj through Bratunac, and then the temporary detention of the Bosnian Muslim men in Bratunac pending their transfer out of the area. He further knew of the role played by members of his brigade in this operation. Colonel Blagojevic knew that the forcible transfer was carried out on discriminatory grounds, as the objective of the forcible transfer was to remove the Bosnian Muslims from that part of Bosnia.
Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 335:
335. Despite efforts to distance himself from Krivaja 95, particularly the second phase involving the capture of Srebrenica, the Trial Chamber is left without doubt that General Krstić was no ordinary participant in these events. Regardless of whether or not he was completely sidelined upon the arrival of General Mladic, it is clear that General Krstić was fully informed of the conduct of the operation. Given his position as Deputy Commander/Chief of Staff of the Drina Corps and his prominent role in the drafting and execution of Krivaja 95, the Trial Chamber finds that General Krstić must have known the VRS military activities against Srebrenica were calculated to trigger a humanitarian crisis, eventually leading to the elimination of the enclave. He thus played a leading role in the events that forced the terrorised civilian population of Srebrenica to flee the town in fear of their lives and move toward Potocari, setting the stage for the crimes that followed. From his vantage point at the FCP in the hills of Pribicevac, he had an unobstructed view of the impact of the shelling upon the terrorised Bosnian Muslim residents of Srebrenica town.888 It is inconceivable that a commander so actively involved in the campaign would not have been aware of such an obvious cause and effect relationship between the shelling and the exodus of residents from Srebrenica that was apparent to virtually all UN military personnel in the area.889
888. Butler, T. 4187.
889. See the discussion supra paras. 122-125.
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, paras. 556, 558:
556. The Chamber has found that Vinko Skrobo ATG was involved in the unlawful transfer on 13 and 14 June 1993 and that Mladen Naletilic was in an a [sic] command position in relation to this unit.1414 The Chamber finds that based on the regular occurrence of such transfers Mladen Naletili c knew or had reasons to know and did nothing to prevent or punish.
1414. See supra paras 91-94 and 100.
558. The Chamber finds on the basis of Military Police reports1421 considered in the context of witness ACs testimony of the regularity of such operations that Mladen Naleitlic knew or had reason to know of this activity. The regular occurrence of such transfers was sufficient to put Mladen Naletilic on notice. Mladen Naletilic choose to do nothing to prevent or to punish but rather communicated to his subordinates that he endorsed the behaviour. Therefore, the Chamber is satisfied that Mladen Naletilic is responsible as a commander under Article 7(3) of the Statute.
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 566:
566. The Chamber found that Vinko Martinovic and the Vinko Skrobo ATG participated in unlawful transfer on 29 September 1993. Mladen Naletilic was in command of this unit.1431 The Chamber is further satisfied that Mladen Naletilic knew or had reasons to know. Mladen Naletilic was put on notice by the regularity of such transfers, as discussed above, his deputy Ivan Anderbak was informed about this specific event and did nothing to prevent or to punish. The Chamber finds that such conduct was condoned by the leadership of KB. Mladen Naletilic is responsible under Article 7(3) of the Statute.
1431. See supra paras 91-94, 100.
[B. Evidentiary comment:]
P.16.5. Evidence of the perpetrators knowledge of what constitutes a civilian population.
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement (AC), 17 December 2004, para. 48-50:
48. [ ] [A] civilian is any person who does not belong to one of the categories of persons referred to in Article 4A(1), (2), (3) and (6) of the Third Geneva Convention and in Article 43 of this Protocol. In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.
The Appeals Chamber notes that the imperative in case of doubt is limited to the expected conduct of a member of the military. However, when the latters criminal responsibility is at issue, the burden of proof as to whether a person is a civilian rests on the Prosecution.51
49. Article 4A(1), (2), (3) and (6) of Geneva Convention III reads:
(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.
(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:
(a) that of being commanded by a person responsible for his subordinates ;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.
(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.
50. Article 43 of Additional Protocol I sets out a definition of armed forces covering the different categories of the above-mentioned Article 4 of Geneva Convention III.52 Read together, Articles 43 and 50 of Additional Protocol I and Article 4A of Geneva Convention III establish that members of armed forces (other than medical personnel and chaplains) and members of militias or volunteer corps forming part of such armed forces are combatants and cannot claim civilian status. Neither can members of organized resistance groups, provided that they are commanded by a person responsible for his subordinates, that they have a fixed distinctive sign recognizable at a distance, that they carry arms openly, and that they conduct their operations in accordance with the laws and customs of war.
50. See in particular, G.A. Res. 2444 and 2675.
51. See Blakić Appeal Judgement, para. 111.
52. Commentary on the Additional Protocols, para. 1916.
Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, para. 50:
50. The presence of individual combatants within the population does not change its civilian character.91 In order to promote the protection of civilians, combatants are under the obligation to distinguish themselves at all times from the civilian population; the generally accepted practice is that they do so by wearing uniforms, or at least a distinctive sign, and by carrying their weapons openly. In certain situations it may be difficult to ascertain the status of particular persons in the population. The clothing, activity, age, or sex of a person are among the factors which may be considered in deciding whether he or she is a civilian. A person shall be considered to be a civilian for as long as there is a doubt as to his or her real status.92 The Commentary to Additional Protocol I explains that the presumption of civilian status concerns persons who have not committed hostile acts, but whose status seems doubtful because of the circumstances. They should be considered to be civilians until further information is available, and should therefore not be attacked.93 The Trial Chamber understands that a person shall not be made the object of attack when it is not reasonable to believe, in the circumstances of the person contemplating the attack, including the information available to the latter, that the potential target is a combatant.
91. See Article 50(3) of Additional Protocol I. The Commentary to this paragraph notes that: (i(n
wartime condition it is inevitable that individuals belonging to the category of combatants become intermingled with the civilian population, for example, soldiers on leave visiting their families.However, provided that these are not regular units with fairly large numbers, this does not in any way change the civilian character of a population. ICRC Commentary, para. 1922.
92. See Article 50(1) of Additional Protocol I.
93. ICRC Commentary, para. 1920.
[B. Evidentiary comment:]
P.16.6. Evidence inferred from the clothing of the person.
A. Legal source/authority and evidence:
Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, paras. 357-358, 429, 515, 533, 553:
357. The Prosecution also called Sanija Dzevlan, who lived in Dobrinja IIIA,1132 to testify about an instance where she was shot in Dobrinja.1133 She testified that on 6 January 1994, she cycled to the hospital located in Dobrinja II to pick up medicines for her sick mother.1134 The day was particularly calm,1135 and she was wearing brown trousers, a yellow anorak and was not carrying arms.1136 While cycling back from the hospital located in Dobrinja II, at about 3 or 4 pm,1137 she was shot in the buttocks just after crossing one of the bridges connecting Dobrinja II to Dobrinja III.1138 [ ]
358. [ ] The Trial Chamber is indeed satisfied beyond reasonable doubt that the clothing of the person, the activity she was engaged in (riding a bicycle), the fact that she was unarmed, were indicia of Dzevlans civilian status and would have put a perpetrator on notice of her civilian status.
1132. Dzevlan, T. 3515.
1133. Dzevlan was aged 32 at the time of the incident, Dzevlan, T. 3513.
1134. Dzevelan, T. 3517-8, 3556.
1135. Dzevlan, T. 3517-9. She testified that she did not hear any shelling or sniping before she left her house, otherwise she would have not done so, Dzevlan, T. 3519, 3536-7, 3542. The Defence confronted her with UN documents reporting shelling activity that day in Sarajevo, D45 (UN report of the week up to 6 January 1994), D44 (UNPROFOR document about shelling activity on 6 January 1994 in Sarajevo). The witness responded that the shelling of all neighbourhoods mentioned in these documents was too distant for her to hear, Dzevlan, T. 3542. The UN document D44 reports shelling on Stup, @uc, Alipasin Most, Smilevici, Rajlovac, Lukavica, Grbavica and Vogosca. The UN document D45 reports shelling on the areas of the Jewish cemetery, Grbavica, the airport, the Holiday Inn, the Central Bank; the area near the Presidency building on 6 January 1994.
1136. Dzevlan, T. 3518. Dzevlan testified that at the time of the incident she was the only passer-by in the area and was not carrying weapons. She added that there had been no soldiers or uniformed people or military equipment in the area, Dzevlan, T. 3518.
1137. Dzevlan, T. 3518, 3523.
1138. Dzevlan, T. 3519; P3280.L (the witness indicated the spot where she was shot and where the bullets came from while the video was playing, T. 3521); P3279.L (direction she was cycling to, T. 3522-3), Dzevlan testified that she did not know the name of the bridge she had crossed when she came back from the hospital in Dobrinja II. Dzevlan, T. 3535. Upon the Defences question that the bridge could be called the Emile Zola Bridge, she responded that possibly it is but emphasised that I dont know what the bridge is called, not even today, Dzevlan, T. 3535. She recognised the bridge she had crossed on 6 January 1994 on photographs shown to her and on the video of the scene of the incident played in court (P3280L), P3264 (photograph where she marks with a circle part of the Church that is visible ); P3114 (map where the witness marked as circle number 1 the spot where she was shot and as circle number 2 the suspected source of fire); T. 3527-9; Sokolar marked on the map P3097 the location of the hospital, placing it at an equal distance between the pedestrian bridge connecting Dobrinja II and III and the traffic bridge also connecting Dobrinja II and III, Sokolar, T. 3583.
429.The Majority finds that, regardless of the exact colour in which Ramiza Kundo was dressed. she was wearing a long colourful skirt (red or violet),1510 a shirt and a pullover 1511 and in view of the activity in which she was engaged at the time of the incident, the perpetrator, or a reasonable person in those circumstances, should not have ignored the probability of Ramiza Kundo being a civilian. The Majority therefore concludes that the person was targeted from the SRK-controlled area, if not with the intention to attack her as a civilian, then at least in full awareness of the high risk that the target was a civilian.
1510. Ramiza Kundo, T. 5942, stating that her skirt was violet; P3673 (Witness Statement of Ramiza Kundo), p. 3, where the skirt is described as red.
1511. Menzilovic, T. 6989.
515. Witness E testified that on the day of the incident, she was a 9 year-old girl with long hair and was maximum 150 centimetres tall.1771 The weather was sunny and Witness E, who was wearing dark trousers and a blue jacket [ ]
1771. P1025.1 (English translation of hospitalisation record of Witness E under seal); P3654 (Pseudonym sheet for Witness E under seal); Witness E, T. 4084 and 4090.
533. [ ] At the time of the incident, Anisa Pita was wearing a dark red jacket, blue dungarees, a cap and white tennis shoes with laces.1888
1888. Fatima Pita, T. 5900; Ekrem Pita, T. 3988 (closed session).
553. The Trial Chamber is also satisfied beyond reasonable doubt that the three girls were civilians and that they could not be confused with members of an armed force. On the morning of the incident, the weather was fine, the friends were dressed in civilian clothes (tee-shirts and denims) and were engaged in a civilian activity.
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 407:
407. The members of the territorial defence were very badly equipped and most of them were dressed as civilians and did not think of themselves as soldiers.
P.16.7. Evidence inferred from the population being unarmed.
A. Legal source/authority and evidence:
Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, para. 232:
232. Jusic said that the person was not carrying weapons and was dressed in civilian clothes, as were the other people in the vicinity.491
491. Jusic, T. 3250-1.
521. Id.
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 407, 409:
407. The members of the territorial defence were very badly equipped and most of them were dressed as civilians and did not think of themselves as soldiers.816 [ ]
816. Witness Abdullah Ahmic, PT pp. 3720-3721 and 3787-3789. See also Witness Kavazovic (PT of 27 August 1997 pp. 2354-2355 and 2452-2453) who stated that he joined the TO voluntarily and nonetheless thought of himself as a civilian when he was not in uniform. In fact, he only wore his uniform during the day and in the evening went back home and did not exercise any official function. In other words, he thought of himself as a soldier when he was in uniform and as a civilian when he was not.
409. Furthermore, the bodies he saw were not in uniform 824 and not a single weapon was found in the destroyed buildings.825
824 Evidence confirmed, inter alia, by witness Kujawinski, PT pp. 4112-4113.
825 Witness Thomas, PT of 24 September 1997 pp. 2583-2588 and 2645-2650.
[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. 286:
286. In addition to this long established and renowned state of affairs, it is clear from the evidence that the JNA forces had both the wider Dubrovnik and the Old Town under direct observation from many positions since its forces had closed in on Dubrovnik in November.923 The presence and movements of a large civil population, in both the Old Town and the wider Dubrovnik, of necessity would have been obvious to this close military observation. Of course, JNA leaders, including the Accused and Admiral Jokic were directly concerned with negotiations with inter alia representatives of the civilian population. Further, one apparent objective of the JNA blockade of Dubrovnik was to force capitulation of the Croatian defending forces by the extreme hardship the civilian population was being compelled to endure by virtue of the blockade. In the Chambers finding it is particularly obvious that the presence of a large civilian population in the Old Town, as well as in the wider Dubrovnik, was known to the JNA attackers, in particular the Accused and his subordinates, who variously ordered, planned and directed the forces during the attack.
923. See supra, paras 56-60 ; 70.
[B. Evidentiary comment:]
P.16.9. Evidence inferred from the non-existance of military objects in the attacked area.
A. Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, paras. 279, 288:
279. In the Chambers view, the facts established in this case make it unnecessary to consider many of the legal and factual issues raised by the submissions of the parties. We would however make the following general observations. The Indictment in this case is confined to an artillery attack on the Old Town which occurred on 6 December 1991. There was also shelling of the wider city of Dubrovnik on that day. The Old Town is a physically distinct part of the wider city. Its geographical location in the wider city, and its clearly visible boundaries as marked by the medieval walls that surround the Old Town, provide an immediate and obvious demarcation of the Old Town from the rest of the city. It is a demarcation which is plain to see at a distance892 and was obvious to the JNA forces on 6 December 1991. The Old Town is also legally distinct from the rest of the wider city because the Old Town, in its entirety including the medieval walls, enjoys a World Heritage listing and the protections and immunities that are consequent on that listing. In the context of this particular case there is a further basis for distinguishing the Old Town from the remainder of the wider city of Dubrovnik. As found by the Chamber in this decision, on 6 December 1991 there were a few Croatian military positions in the wider city of Dubrovnik that were relevant to the JNA attempt to capture Srdj that day, whereas there were none in the Old Town, and it was not believed by the JNA forces responsible for the shelling that there were.893 For all of these quite compelling reasons it is legally and factually appropriate, in the circumstances of this case, to consider the targeting and shelling of the Old Town in isolation, and in distinction from, the targeting and shelling of the remainder of the wider city of Dubrovnik. That is so for all counts.
892. Exhibit C1/2.
893. See supra, paras 193- 194; 211.
288. The Chamber has found that the Old Town was extensively targeted by JNA artillery and other weapons on 6 December 1991928 and that no military firing points or other objectives, real or believed, in the Old Town were targeted by the JNA.929 Hence, in the Chambers finding, the intent of the perpetrators was to target civilians and civilian objects in the Old Town. The Chamber has, in addition, found that a relatively few military objectives (actual or believed) in the wider city of Dubrovnik, but outside the Old Town, were targeted by JNA forces on 6 December 1991. These were, in most cases, widely separated and in positions distant from the Old Town. Shelling targeted at the Croatian military positions in the wider Dubrovnik, including those closer to the Old Town, and whether actual or believed positions, would not cause damage to the Old Town, for reasons given in this decision. That is so for all JNA weapons in use on 6 December 1991, including mortars. In addition to this, however, the Chamber has found there was also extensive targeting of non -military objectives outside the Old Town in the wider city of Dubrovnik.
928. See supra, para 214.
929. See supra, paras 193-194.
930. See supra, paras 250; 259; 270; 276.
931. See infra, paras 326-327.
[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. 284:
284. The Chamber has already found that on 6 December 1991 there was an attack launched by the JNA forces against the Old Town of Dubrovnik.909 It is also the finding of the Chamber, as recorded earlier, that there were no military objectives within the Old Town and the attack was not launched or maintained in the belief that there were.910 It is possible that there may have been individuals in the Old Town on 6 December 1991 who were connected with the Croatian defending forces, however, any such persons did not fire on JNA forces or undertake any overt military activity. Their presence could not change the character of the population. It was properly characterised as a civilian population, and the objects located there were civilian objects. As regards the Defence submission concerning alleged military activities of the Crisis Staff, the headquarters of which was located in the Old Town,911 the Chamber notes that no persuasive evidence has been supplied to the effect that the Crisis Staff was conducting military operations from the Old Town.912 On the contrary, Delo Jusic testified that the Crisis Staff did not deal with issues of defence.913 Mato Valjalo stated that its members did not fight and did not wear uniforms.914 It was his testimony that the headquarters of the Territorial Defence was in Lapad.915 There is nothing in the evidence to suggest that the building of the Crisis Staff made an effective contribution to military action or that its destruction would offer a definite military advantage .916 Accordingly, the Chamber finds on the evidence in this case that the presence of the Crisis Staff in a building located in the Old Town did not render the building a legitimate military objective. The Chamber would also note that the building in question was not proved to have been damaged917 during the shelling so that this Defence submission apparently lacks factual foundation.
909. See supra, paras 99-119 ; 121-145.
910. See supra, paras 193- 194.
911. Defence Final Brief, paras 204 -206.
912. Prosecution Final Brief, paras 232-233.
913. Delo Jusic, T 3206-3207.
914. Mato Valjalo, T 2091.
915. Mato Valjalo, T 1997.
916. Article 52 para 2 of Additional Protocol I, see supra, footnote 885.
917. The headquarters of the Crisis Staff was located at the Rectors palace, Delo Jusic, T 3207; Dordje Ciganovic, T 2903. Slavko Grubisic testified: At the rector's palace, as far as I was able to see from the outside, because a shell had landed between the cathedral and the rector's palace, from the north, or rather, the south side, from the cathedral, on those beautiful stones, there are still marks made by shrapnel. It's pock-marked by shrapnel still. T 1043. However, this evidence is not indicative of proving that the damage occurred as result of this shell. Moreover, P63/6, Annex 1 shows six projectile impacts marked as 4 and 6 in the northern and eastern area of the outer walls of the Rectors Palace as being damaged in October/November.
[B. Evidentiary comment:]
