3. The perpetrator directed an attack.

P.1. Evidence of requirements for an attack.

P.2. Evidence of attack occurring.

P.3. Evidence with regard to direction of attack.

P.4. Evidence of military presence in a particular area from which the attack was directed.

3. The perpetrator directed an attack.

P.1. Evidence of requirements for an attack.

A. Legal source/authority and evidence:

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 282:

"282. Pursuant to Article 49(1) of Additional Protocol I to the Geneva Conventions "attacks" are acts of violence against the adversary, whether in offence or in defence. According to the ICRC Commentary an attack is understood as a "combat action" and refers to the use of armed force to carry out a military operation at the beginning or during the course of armed conflict.⁹⁰³ […]"

"⁹⁰³ ICRC Commentary on the Additional Protocols, p 603. See also Kordić Appeals Judgment, para 47."

Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement (AC), 17 December 2004, para. 47:

"47. The term attack is defined in Article 49 of Additional Protocol I as "acts of violence against the adversary, whether in offence or in defence".⁴⁹ Therefore, in determining whether an unlawful attack on civilians occurred, the issue of who first made use of force is irrelevant."

"49. This definition applies to the crime of unlawful attacks against civilian objects as well."

Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, para. 52:

"52."Attack" is defined in Article 49 of Additional Protocol I as "acts of violence against the adversary, whether in offence or in defence." The Commentary makes the point that "attack" is a technical term relating to a specific military operation limited in time and place, and covers attacks carried out both in offence and in defence.⁹⁷ The jurisprudence of the Tribunal has defined "attack" as a course of conduct involving the commission of acts of violence.^98"

"⁹⁷ ICRC Commentary, para. 4783.

⁹⁸ Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 54; Kunarac Trial Judgment, para. 415."

Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Judgement – Volume 1 (TC), 31 March 2016, para. 204:

204. For the same reasons, the Chamber, by a majority, Judge Lattanzi dissenting, was not in a position to find that the following crimes were committed in the period covered by the Indictment:

 a.      wanton destruction, or devastation not justified by military necessity of the city and homes of Vukovar;172 homes in the village of Svrake (Greater Sarajevo);173 of the city and homes in Ilijaš (Greater Sarajevo); 174 the city and homes of Mostar;175 and the villages of Donja Bijenja, Gornja Bijenja, Postoljani, Presjeka, Kljuna, Borovčići, Krusevljani, Pridvorci and Hrušta (Nevesinje municipality);176

172. The majority notes that, overall, concerning all the allegations of destruction, in order to find that destruction was committed as a war crime, not justified by any military necessity, the majority first had to be in a position to assess the proportionality of such destruction, the forces that were present and, in particular, the level of resistance offered to the Serbian forces. In the case at hand, however, the evidence in the case file only shows the actions of the Serbian forces. Under these circumstances, the majority was unable to qualify this destruction as a war crime. On the destruction in Vukovar, the majority relied on the following evidence: the Decision of 8 February 2010, Annex; Vesna Bosanac; Emil Čakalić; Dragutin Berghofer; Goran Stoparić; VS-002; VS-021; VS-051; P55; P57; P91; P183; P195; P261; P268 under seal; P275; P278; P291; P407; P594; P595; P603; P844 under seal; P845; P921; P1001; P1076; P1161 under seal; P1260; P1291; P1373 under seal; P1374 under seal; P1376 under seal; P1377 under seal.

173. The majority relied on the following evidence: Safet Sejdić; P463; P1346.

174. During the attack on Lješevo village, Serbian forces, including in particular Vaske’s unit, members of the Ilijaš TO, but also other Serbs whose affiliation to a particular unit has not been established, destroyed a number of houses and barns, including those of Munib Bulbul, Ismet Omanović and Nimza Sidić. Nevertheless, the majority does not have the supplementary evidence that would enable it to establish whether a considerable amount of property was destroyed. The majority relied on the following evidence: VS-1055; VS-1111; P449 under seal; P451 under seal; P840.

175. Staring in April 1992, the JNA, which included SRS volunteers in its ranks, attacked the city of Mostar and, from mid-May of the same year, shelled the city indiscriminately with mortars for 30 hours. The majority can therefore reasonably infer that a significant amount of property was destroyed. Nonetheless, the majority does not have sufficient evidence at its disposal to find beyond all reasonable doubt that this destruction was not justified by military necessity. The majority relied on the following evidence: Zoran Rankić; VS-1067; C11; P31; P524; P659 under seal; P843; P846; P1052 under seal; P1074.

176. The majority relied on the following evidence: the Decision of 23 July 2010, Annex; Ibrahim Kujan; Vojislav Dabić; VS-1022; VS-1051; P483 under seal; P524; P880 under seal; P881 under seal.

b.     deliberate destruction of sacred sites of Muslims in Zvornik;177 of the mosque of Svrake/Semizovac and the Roman Catholic church of Semizovac, in the Vogošća municipality (Greater Sarajevo); 178 of the three mosques of Stari Ilijaš, Gornja Misoča and Donja Misoča, as well as other institutions dedicated to the Muslim or Catholic religion in the area of Ilijaš (Greater Sarajevo);179 of the Sevri Hadži-Hasan mosque and the Franciscan church in Mostar;180 and of several mosques and one Catholic church after the Serbian forces had taken control of the town of Nevesinje in June 1992.181

177. The majority relied on the following evidence: András Riedlmayer; VS-037; VS-038; P444; P1044; P1045; P1144 under seal; P1401 under seal.

178. The majority was able to establish that the mosque at Svrake/Semizovac and the Roman Catholic church at Semizovac were completely or partially destroyed. Yet, the majority does not have other information that would enable it to identify, for example, the perpetrators. The majority relied on the following evidence: Safet Sejdić; P1045.

179. The majority was able to note this destruction, but was not in a position to establish that it occurred during the period covered by the Indictment. The majority relied on the following evidence: VS-1055; P840; P1045.

180. The Chamber accepts the testimony of the expert András Riedlmayer who testified to the destruction between April and May 1992 of the Sevri Hadži-Hasan mosque in Mostar. The Chamber also accepts the evidence of Zoran Tot who said in his written statement that, in the period between March and May 1992, Srđan Ðurić, a member of the SRS volunteers, went out at night into the city of Mostar carrying two to four hand-held rocket launchers, and opened fire of his own accord on the minaret of a mosque in Mostar. The majority notes that the statements of Zoran Tot and the evidence provided by Expert Witness András Riedlmayer are mutually corroborative on the destruction of the minaret of a mosque, and that this was an isolated act. The majority also notes that the periods indicated by these two witnesses concerning this destruction overlap. The majority deems, nonetheless, that it is not in a position to establish a link between these two testimonies because of, on the one hand, a lack of precision between the dates indicated as the time of the mosque’s destruction and, on the other hand, even if in both cases the destruction of the minaret of a mosque is involved, the majority is not able to find beyond all reasonable doubt that the mosque Zoran Tot described as having been destroyed by Srđan Ðurić was indeed the Sevri Hadži-Hasan mosque whose destruction is described in the expert report of András Riedlmayer. The majority finds that the Sevri Hadži-Hasan mosque in Mostar was destroyed in an isolated act, but the available evidence does not allow it to determine either the exact circumstances or the perpetrators of this destruction. Similarly, the majority notes that the available evidence does not allow it to make any precise finding on the time of the destruction of the Franciscan church. The majority is therefore unable to find beyond all reasonable doubt that these incidents fall within the period of the Indictment. The majority relied on the following evidence: “Decision on Expert Status of András Riedlmayer”, 8 May 2008; András Riedlmayer; P843; P1044; P1045.

181. The majority relied on the following evidence: Ibrahim Kujan; András Riedlmayer; VS-1067; P524; P880 under seal; P1045; P1052 under seal.

P.2. Evidence of attack occurring.

A. Legal source/authority and evidence:

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, paras. 100, 103:

"100. Zineta Ogresta, residing at Od Sigurate Street 2 in the Old Town, and Mato Valjalo, who was staying with his father-in-law in his apartment in the Old Town on Prijeko Street,²⁸¹ both saw shells falling on the fortress at Mount Srdj around or just after 0600 hours.²⁸² Ivo Vlasica […] saw Srdj on his left where " large-scale shelling had started and a great deal of shooting".²⁸³ The ECMM monitors, who were located at the Hotel Argentina, less than one kilometre to the southeast of the Old Town, maintained a log sheet of events that day.²⁸⁴ The first entry at 0600 hours reads as follows: "Shelling from land and sea towards the fortress close to the TV tower (Srdj) and the harbour commenced." The log indicates that this shelling was still in progress at 0640 hours.²⁸⁵ […] At 0612 hours it is recorded that the ECMM lodged the following protest with Admiral Jokic: "We strongly protest against the bombing of several parts of Dubrovnik that started at about 0600 hours on 6 December 1991 and insist on an immediate cessation of fire." A similar protest from the Dubrovnik Crisis Staff is reflected in the next entry and reads as follows: "We strongly protest against the unprovoked strong artillery fire at 0550 hours this morning from the Strincjera and Dubrave areas of the Srdj feature, and tank and mortar fire on Dubrovnik."²⁸⁷

"103. As the protests and other evidence records, some shelling occurred on residential areas of Dubrovnik, including the Old Town and on the port of the Old Town, virtually from the outset of the attack, notwithstanding an initial primary concentration on Srdj."

Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, ICTY, 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."

P.3. Evidence with regard to direction of attack.

A. Legal source/authority and evidence:

Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, paras. 257, 264, 470:

"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)."

"470. 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."

P.4. 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. 354, 511-512, 528 :

"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.

 Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Judgement – Volume 1 (TC), 31 March 2016, para. 5:

"5. The first pillar is the allegation that the Accused was associated with the crimes by virtue of his participation in a JCE, which also included local and national authorities, such as the President of the Republic of Serbia, Slobodan Milošević, military leaders and their deputies, as well as paramilitaries and volunteer units called “Chetniks” and “Šešeljevci”. In addition to war propaganda and incitement to hatred against non-Serbs, Vojislav Šešelj’s main role was distinguished by his involvement in the recruitment and organisation of volunteers, who were sent into the field and integrated into units of the “Serbian Forces”, who are claimed to have carried out attacks and sieges during the conflict in several municipalities in Croatia and Bosnia and Herzegovina. It is alleged that these “Serbian Forces” committed murders, acts of torture and cruel treatment against numerous non-Serb civilians, notably Croats and Muslims.² It is also alleged that they forcibly displaced non-Serb civilians and deported them, waging a campaign of ethnic cleansing against them […]"

"2. In its brief, the Prosecution mentions crimes committed against persons placed hors de combat and prisoners of war, without clarifying whether the Accused is also charged with these crimes. In light of the rights of the Defence, the Chamber took into account and examined only those allegations explicitly set out in the Indictment."