Table of contents:
5. Such towns, villages, dwellings or buildings did not constitute military objectives.
P.17. Evidence of motives of ethnic cleaning for attack.
P.18. Evidence of the object(s) lacking strategic importance.
P.19. Evidence of the absence of a military objective or activity connected to the object of attack.
P.20. Evidence of relevant military targets being located elsewhere.
P.21. Evidence of the attacked area being physically distinct from any military objects.
P.23. Evidence of the demarcation etc being at the time of the attack.
Element:
5. Such towns, villages, dwellings or buildings did not constitute military objectives.
P.17. Evidence of motives of ethnic cleaning for attack.
A. Legal souce/authority and evidence:
Prosecutor v. Zoran Kuprekić et al., Case No. IT- 95-16-T, Judgement (TC), 14 January 2000, para. 183:
"183. Akhavan shared the view of Lt.-Col. Watters that Ahmici was not a military target but an undefended village and that the civilian inhabitants who were victims of the attack offered no military resistance. The attack on Ahmici lasted only one day, with the take-over and destruction completed on 16 April 1993. The exact number of victims was impossible to determine with certainty since many bodies could not be recovered from the rubble due to the danger of unexploded mines and booby-traps. Three hundred of the original Muslim inhabitants were still missing and in addition to these locals there had also been a large number of refugees in Ahmici on the day of the attack who had yet to be accounted for. Akhavan stated in cross-examination that although there were atrocities against Croats, for instance the beheading of a Croat in Miletici apparently committed as a reprisal for Ahmici by rogue Mujahedin, looking at central Bosnia as a whole, the Muslims were disproportionately victimised. There was a climate of fear and terror in the region that everyone experienced, but allegations of large-scale atrocities committed against Croats, for example in Zenica, were not credible at the time.224 The attack on Ahmici was part of a pattern, according to Akhavan, namely that of establishing control by means of "ethnic cleansing" and there had been simultaneous and concerted attacks on Ahmici and surrounding villages."
224. Payam Akhavan, T. 1330-1331. and T. 1241-1242.
P.18. Evidence of the object(s) lacking strategic importance.
A. Legal source/authority and evidence:
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 411:
"411. Although the village of Ahmici had no strategic importance which justified the fighting, it was however of particular significance for the Muslim community in Bosnia. [ ]"
P.19. Evidence of the absence of a military objective or activity connected to the object of attack.
A. Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 184:
"597. Lars Brolund, T 874; Per Hvalkof, T 2218-2219."
Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, para. 508:
"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:
[i]f there was offensive action taken as a direct result of those mortars, it can be referred to as counter battery fire. However, when I went to the hospital, there was fresh damage as it was only a week or two after I conducted a battle damage assessment. And had the hospital been damaged by a 76 millimetre anti-tank rounds or armour-piercing rounds, and some of these rounds were presented to me, these rounds had hit the building very high up. So even if they had been fired whilst the mortar was firing, they would have been completely ineffective. Six or seven rounds had hit the hospital, and obviously they had been fired by a weapon aimed at the hospital rather than at any mortars that may or may not have been there. So the hospital had been attacked, and it was not a suitable weapon to use as counter battery fire [ ] By high up, I mean that if it was counter battery fire, it would be aimed at something on the ground, but it obviously wasn't because it was on the first or second storey of the building. So if it had been fired at the same time as the mortars were firing, there was no way at all that it would ever have hit the mortars because it was just fired at the building. The building was the target, not any mortars.1742"
"1740. Mole, T. 11140; Harding, T. 4371-2.
1741. Harding, T. 4371-3.
1742. Harding, T. 4372."
Prosecutor v. Zoran Kuprekić et al., Case No. IT- 95-16-T, Judgement (TC), 14 January 2000, para. 761:
"761. The entirety of the evidence brought before the Trial Chamber shows that the attack by the Croats was a planned and highly organised operation. The use of different classes of heavy weaponry such as rocket launchers and anti-aircraft guns proves that it was not only an operation by a special purpose unit like the Jokers, who did not dispose of such an arsenal, but that the HVO as a professional army was itself actively involved in the attack. The Trial Chamber is satisfied that there were no significant military units or installations of the BiH present in the area of the village at the time of the attack, but that the HVO and Military Police actually exploited the absence of the BiH for a surprise attack on the village."
P.20. Evidence of relevant military targets being located elsewhere.
A. Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 203:
"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."
P.21. Evidence of the attacked area being physically distinct from any military objects.
A. Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 279:
"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."
A. Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, paras. 279, 284:
"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."
"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.
P.23. Evidence of the demarcation etc being at the time of the attack.
A. Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, paras. 279, 288-289:
"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.
289. As found elsewhere in this decision, the deliberate JNA shelling of the Old Town on 6 December 1991 has been proved to have resulted in the death of two civilians and caused injuries to civilians.930 There was also extensive damage to civilian objects.931 Accordingly, and leaving aside for the present the issue of the Accuseds criminal responsibility, the Chamber finds that the elements of the offence of attacks on a civilian population and civilian objects have been established.
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.
