CILRAP » Case Matrix Network » CMN Knowledge Hub » Means of Proof Digest » Art. 8 War crimes » Art. 8(2)(e) War crimes » Art. 8(2)(e)(i) Attacking civilians » 5. [Particular mental element for Element 4] The perpetrator intended the civilian population as such or individual civilians not taking direct part in hostilities to be the object of the attack.

Element:

5. [Particular mental element for Element 4] The perpetrator intended the civilian population as such or individual civilians not taking direct part in hostilities to be the object of the attack.

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 therefore concludes that the crime of attacks on civilians or civilian objects, as a crime falling within the scope of Article 3 of the Statute, is, as to actus reus, an attack directed against a civilian population or individual civilians, or civilian objects, causing death and/or serious injury within the civilian population, or damage to the civilian objects. As regards mens rea, such an attack must have been conducted with the intent of making the civilian population or individual civilians, or civilian objects, the object of the attack. For reasons stated above,⁹⁰⁸ the issue whether a standard lower than that of a direct intent may also be sufficient does not arise in the present case."

"908. See supra, para 281."

Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on 24 March 2016 – Volume I of IV (TC), 24 March 2016, paras. 458-461:

''458. In Count 9 of the Indictment, the Accused is alleged to be criminally responsible for acts of violence the primary purpose of which was to spread terror among the civilian population of Sarajevo as a violation of the laws or customs of war, punishable under Article 3 of the Statute. While Article 3 does not explicitly refer to the offence of terror as such, the Appeals Chamber has held that this offence meets the threshold requirements for war crimes and is therefore covered by Article 3 of the Statute. The prohibition of terror stems from Article 51(2) of Additional Protocol I and Article 13(2) of Additional Protocol II, both of which prohibit “acts or threats of violence the primary purpose of which is to spread terror among the civilian population” and both of which have been deemed by the Appeals Chamber to be part of customary international law.''

''459. The following elements need to be established before the Chamber can enter a conviction for terror: (a) acts or threats of violence directed against the civilian population or individual civilians not taking direct part in hostilities; (b) the perpetrator wilfully made the civilian population or individual civilians not taking direct part in hostilities the object of those acts of violence; (c) the above was committed with the primary purpose of spreading terror among the civilian population.''

''460. The actus reus of terror consists of acts or threats of violence directed against the civilian population or individual civilians not taking direct part in hostilities. As such, it is similar to the actus reus of unlawful attacks on civilians. Accordingly, as is the case with unlawful attacks on civilians, the acts or threats of violence constituting terror need not be limited to direct attacks on civilians or threats thereof, but may include indiscriminate or disproportionate attacks. In addition, they do not include legitimate attacks against combatants.''

''461. The nature of the acts or threats of violence directed against the civilian population or individual civilians can vary. The Appeals Chamber has held that causing death or serious injury to body or health represents only one of the possible modes of commission of terror and thus is not an element of the offence per se. What is required—for this offence to fall under the jurisdiction of the Tribunal—is that the victims suffer grave consequences resulting from the acts or threats of violence, which may include but are not limited to death and/or serious injury to body or health. However, while “extensive trauma and psychological damage form part of the acts or threats of violence”, the actual infliction of terror on the civilian population is not a legal requirement of this offence.''

Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on 24 March 2016 – Volume I of IV (TC), 24 March 2016, paras. 450, 456-457:

"450. As for the elements of the offence of unlawful attacks on civilians, they consist of (i) acts of violence directed against the civilian population or individual civilians not taking a direct part in hostilities causing death or serious injury to body or health within the civilian population (actus reus) and (ii) the offender wilfully making the civilian population or individual civilians not taking a direct part in hostilities the object of those acts of violence (mens rea)."

"456. For unlawful attacks on civilians to be established, the Prosecution must show that the perpetrator wilfully made the civilian population or individual civilians the object of the acts of violence. In other words, the perpetrator has to act consciously and with intent, willing the act and its consequences. This encompasses the concept of recklessness but not negligence."

"457. For the mens rea to be established, the Prosecution must also show that the perpetrator was aware, or should have been aware, of the civilian status of the persons attacked. In cases of doubt as to the status of those persons, the Prosecution must show that a reasonable person could not have believed that the individuals attacked were combatants. In addition, it is not required to establish the intent to attack particular civilians; rather, it is prohibited to make the civilian population as such, as well as individual civilians, the object of an attack."

5.1. Knowledge of the perpetrator about the civilian status of the object of the attack

A. Legal source/authority and evidence:

Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement (AC), 17 December 2004, para. 48-50:

"48. The civilian population as such shall not be the object of attack.⁵⁰ This fundamental principle of international customary law is specified in Articles 51(2), and 51(3) of Additional Protocol I. Article 50(1) of Additional Protocol I states that

[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 latter’s 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;

(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 Blaskic 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."

5.1.1. Evidence indicative of the knowledge of the perpetrator with regard to the civilian status of the victim

P.9. Evidence with regard to the victim.

P.9.1. Evidence of the clothing of the victim.

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 victim, the activity she was engaged in (riding a bicycle), the fact that she was unarmed, were indicia of Dzevlan’s 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 Defence’s question that the bridge could be called the Emile Zola Bridge, she responded that "possibly it is" but emphasised that "I don’t 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 victim 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 Blaškić, 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.9.2. Evidence of the activity the victim was engaged in.

Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, paras. 515, 547-548, 584 :

"515. Approximately one hour and a half after being outside in the yard, she was hit by a single bullet as she was kneeling to play by herself with flowers near a wall in the front of her house […]"

"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.

1772. Witness E, T. 4034-5."

"547. Witness G testified that on 25 June 1993 he was picking lettuce in the vegetable plot of his farm in Kobilja Glava when, around 13:20 hours, he heard sounds of shooting from Orahov Brijeg.¹⁹³¹ He lay down for two or three minutes and when he got up, he was shot in the back.¹⁹³² […]

548. The Trial Chamber has no doubt either that Witness G had civilian status on the day of the incident. The activity in which he was involved and the manner in which he was dressed (he was dressed in no more than a pair of shorts) were without any doubt the activity and dress of a civilian."

"1931. Witness G, T. 2396-7.

1932. Witness G, T. 2397-8."

"584. […] The Majority heard reliable evidence that civilians were targeted during funerals, in ambulances, in hospitals, on trams, on buses, when driving or cycling, at home, while tending gardens or fires or clearing rubbish in the city. […] Other witnesses testified about civilians being targeted while crossing intersections in Novo Sarajevo, in Hrasno, in Dobrinja, in Novi Grad, in Alipasino Polje, or in Stari Grad. […] Residents of urban or rural areas of Sarajevo testified about the targeting of civilians fetching water […] Civilians were targeted while shopping (shelling incident 5 in Stari Grad), while gathered in square (shelling incident 4 in Alipasino Polje) or during sportive festivities organised on a public day (shelling 1 in Dobrinja). Even children were targeted in schools, or while playing outside, riding a bicycle, near their home, or in the street."

[B. Evidentiary comment:]

P.9.3. Evidence of the age of the victim.

P.9.4. Evidence of the sex of the victim.

A. Legal source/authority and evidence:

Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, para. 50:

"91. See Article 50(3) of Additional Protocol I. The Commentary to this paragraph notes that:

"in 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.9.5. Evidence of the victim 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 victim was not carrying weapons and was dressed in civilian clothes, as were the other people in the vicinity.⁴⁹¹"

"491. Jusic, T. 3250-1."

Prosecutor v. Tihomir Blaškić, 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 uniform824 and not a single weapon was found in the destroyed buildings825."

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:]

P.10. Evidence with regard to the circumstance.

P.10.1. Evidence of the presence of UNPROFOR vehicles.

A. Legal source/authority and evidence:

Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, para. 274:

"274. Even if the attacker had not been able to see the clothing and the activity performed by Velic, the presence of the two UNPROFOR vehicles would have made the attacker aware that Velic was performing civilian duties."

[B. Evidentiary comment:]

P.10.2. Evidence of the presence of women and/or children.

A. Legal source/authority and evidence:

Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, para. 515:

"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"

"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."

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 409:

"409. Furthermore, the bodies he saw were not in uniform and not a single weapon was found in the destroyed buildings. On the contrary, there were women and children amongst the bodies strewn on the ground."

[B. Evidentiary comment:]

P.10.3. Evidence of the presence of armed elements does not deprive a civilian group of its character.

A. Legal source/authority and evidence:

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, paras. 282, 284:

"282. The presence of certain non-civilians among the targeted population does not change the character of that population. It must be of a "predominantly civilian nature".⁹⁰⁵ Further, Article 50 (1) of Additional Protocol I provides for the assumption that in case of doubt whether a person is a civilian, that person shall be considered to be a civilian.⁹⁰⁶ […]

"284. 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."

"905. Tadic Trial Judgement, para 638; Blaskic Trial Judgement, para 214.

906. Kordic Appeals Judgement, paras 48-51."

Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement (AC), 17 December 2004, para. 50:

"50. The civilian population comprises all persons who are civilians and the presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character."

Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, para. 387:

"387. Although the number of soldiers present at the [football] game was significant, an attack on a crowd of approximately 200 people, including numerous children, would clearly be expected to cause incidental loss of life and injuries to civilians excessive in relation to the direct and concrete military advantage anticipated. In light of its finding regarding the source and direction of fire, and taking account of the evidence that the neighbourhood of Dobrinja, including the area of the parking lot, was frequently shelled from SRK positions, the Majority finds that the first scheduled shelling incident constitutes an example of indiscriminate shelling by the SRK on a civilian area."

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 407:

"407. The Trial Chamber also notes that much of the evidence contradicted the Defence submission that the ABiH forces were preparing for combat. […] Witness Hadzihasanovic confirmed this information, stating that owing to the lack of men and of equipment, and in particular of barracks, the only armed presence in the village of Ahmici and those nearby was a territorial defence unit from Zenica in case of a Serb parachute attack. […]"

Prosecutor v. Zoran Kupreškić et al., Case No. IT- 95-16-T, Judgement (TC), 14 January 2000, para. 513:

"513. […] the sacrosanct character of the duty to protect civilians, […]. Even if it can be proved that the Muslim population of Ahmici was not entirely civilian but comprised some armed elements, still no justification would exist for widespread and indiscriminate attacks against civilians. […]"

[B. Evidentiary comment:]

P.11. Evidence with regard to ability to target the victim.

P.11.1. Evidence of the distance between the victim and the perpetrator.

A. Legal source/authority and evidence:

Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, paras. 320-321, 355-356:

"320. The Defence submits that the victim was hit "by chance" during combat;⁹³⁴this contention seems based on an acknowledgement by the Prosecution that, in the area, there were daily clashes between the armies, ABiH soldiers were positioned in high-rise buildings and that soldiers had warned the two girls that they should not be going out because "there was firing".⁹³⁵The Trial Chamber notes that the warning was that "sniper fire had started and to hurry up."⁹³⁶The fact that one single shot was fired and directly hit Muratovic, finally, corroborates the finding that the incident was not caused by a "lost shot" during ongoing combat. In order to exclude the possibility of a bullet hitting Muratovic by mistake, or of a ricochet, the Trial Chamber takes into specific account the submission by Omerovic that soldiers were not garrisoned in the immediate vicinity of the spot where the incident occurred, and that the witness was not aware of any military facility nearby;⁹³⁷moreover, no fighting was ongoing in the area at the time of the incident. The distance between the area of the Institute for the Blind and the position of the victim at the time of the incident was about 200 meters.⁹³⁸ At that distance, the age, the activity and the way the girls were dressed could not be ignored by the perpetrator. Their civilian status was thus obvious for anyone located at such a short distance.

321. The Trial Chamber finds that Sanela Mutarovic, a civilian, was deliberately targeted from SRK-controlled territory."

"934. Defence Final Trial Brief, para. 405.

935. T. 13898-9.

936. Omerovic, T. 3844. She later confirmed that the soldiers 뱓old us to hurry up because a few moments before sniper fire had been opened? Omerovic, T. 3881.

937. The witness indicated that she had seen soldiers in her building and her sister뭩 apartment block earlier in 1994, but also said that she had never noticed soldiers on the street where the incident occurred. To her knowledge, the soldiers who assisted them were not quartered in that building, Omerovic, T. 3882, 3891.

938. Hinchliffe, T. 12994.

939. The Indictment alleges that on 17 July 1994, 밨asid Dzonko, a man aged 67 years, was shot and wounded in his back while sitting watching television in his apartment at Milanka Vitomira Street, presently Senada Mandica-Dende Street 5, in Vojnicko Polje, in the west end of Sarajevo? Schedule 1 to the Indictment."

"355. The Trial Chamber also rejects the defence claim that ABiH soldiers at that time held fortified positions on the bridge and that the victim was hit by a stray bullet fired during combat. Reliable testimony establishes that ABiH soldiers passed by after the event and only then opened return fire in the direction of the Orthodox Church. In the present case, the activity the victim was engaged in, the fact that civilians routinely fetched water at this location and her civilian clothing were indicia of the civilian status of the victim. At a disctance of 1100 metres (as determined by Hinchcliffe), the perpetrator would have been able to observe the civilian appearance of Zametica, a 48 year old civilian woman, if he was well equipped, or if no optical sight or binoculars had been available, the circumstances were such that disregarding the possibility that the victim was civilian was reckless.1130 Furthermore, the perpetrator repeateadly shot toward the victim preventing rescuers from approaching her. The Trial Chamber concludes that the perpetrator deliberately attacked the victim. The mere fact that at the distance of 1100 metres the chance of hitting a target deteriorates does not change this conclusion. The suggestion by the Defence that the cause of death should be doubted in the absence of specific forensic medical information is also rejected. The course of events sufficiently proves that Zametica death was a consequence of direct fire opened on her.

356. The Trial Chamber finds that Munira Zametica, a civilian, was deliberately shot from SRK-held territory."

1130 There is some discrepancy as to the colour of the clothing of the victim. Vahida Zametica testified that her mother wore a brown skirt (T. 3486), while [ahinovi} testified that the victim was wearing a multicoloured skirt (T. 3426). The Trial Chamber recalls that such details have a bearing if the clothing of the victim could have led the perpetrator – along with other details such as the carrying of a weapon or involvement in a military activity - to believe that the person targeted was not a civilian.

[B. Evidentiary comment:]

P.11.2. Evidence of the level of luminocity (light conditions) at the time of the incident.

A. Legal source/authority and evidence:

Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, paras. 521-523:

"521. Although Mejra Jusovic’s did not indicate explicitly the light conditions at the time of the incident, the Majority is satisfied that the circumstances of the incident establish that the victim could only have been shot at deliberately. Mejra Jusovic did not report that there was any ongoing fighting at the time of the incident ¹⁸⁰⁵ and heard only two shots being fired before a third one hit her, as she lay on the ground. Furthermore, the victim was an easier target since she was not moving and the perpetrator was positioned higher up, in the elevated area of Spicasta Stijena. The sequence of events demonstrates conclusively that the victim, targeted by several bullets and in such a position, was made the object of the attacks. In reaching this conclusion, the Majority is aware that Witness E, a resident of Sedrenik,¹⁸⁰⁶ who marked on a map the position of trenches in the area immediately west of Pasino Brdo¹⁸⁰⁷ warned during her testimony about her placement of the trenches as she "can't read maps very well"¹⁸⁰⁸and she "never went to [these] trenches,"¹⁸⁰⁹ relying instead on information she had heard from others when she was a little girl.¹⁸¹⁰The Majority also notes that evidence from SRK soldiers posted in the area indicates that there were a series of ABiH trenches immediately behind the front lines at Spicasta Stijena 50 metres below the rigde,¹⁸¹¹without any suggestion that there were additional ones close to the site of the incident.

522. Although it is convinced that at 6:00 hours in a July morning there is light, given the absence of explicit indications as to the exact level of luminosity at the time of the incident, the Majority cannot exclude the possibility that the person firing at Mejra Jusovic failed to notice that she was a middle-aged civilian woman carrying wood. Nonetheless, the Majority is satisfied that the absence of military presence in the area of the incident,¹⁸¹² which consisted of open space except for three nearby houses,¹⁸¹³should have cautioned the perpetrator to confirm the military status of his victim before firing.

523. The Majority therefore finds that Mejra Jusovic was fired upon from SRK-controlled territory in reckless disregard of the possibility that she was a civilian."

[B. Evidentiary comment:]

P.11.3. Evidence of the existence of a clear line of sight

A. Legal source/authority and evidence:

Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, paras. 288, 359, 550:

"288. Witness DP16 claimed that the site of the incident was not visible from SRK positions,⁷⁸⁷ however the visual evidence presented to the Trial Chamber demonstrates that a clear line of sight existed.⁷⁸⁸"

787. He testified that, because the site of the shooting was at more than 1000 metres from SRK lines and due to "the configuration of the ground and the separation line in that area", this site was not visible from SRK positions, Witness DP16, T. 16577.

788. P2792 (set of photographs taken by the police); P3279W (360-degree photograph); P3280W (video of location of incident); P3269 (set of photographs pre-marked by witness AH).

"359. The evidence conclusively demonstrates that there was a line of sight between the area of the Orthodox Church and the spot where the victim was shot.¹¹⁵³"

"1153. The photograph P3264 evidences that there was a line of sight from the Orthodox Church or buildings of Dobrinja IV to the spot in Dobrinja III where the victim was shot, P3264 (photograph taken from the bridge and the line of sight to the Orthodox Church). Dzevlan recalled that the day after she was shot, a man was shot at same spot, in the open area at the end of the bridge, where she was shot in Dobrinja III allegedly by SRK forces; the spot was then considered dangerous, Dzevlan, T. 3529. As a result, in addition to barricades made of sandbags, which extended the full length of the bridge and then approximately one metre past either side of the bridge, barricades were installed either side of the bridge by the civilian protection shortly thereafter, Dzevlan, T. 3525, 3529; P3264 (photograph taken from the bridge)."

"550. The video and photographs of the area tendered into evidence further demonstrate that there was a line a sight between the area around "Tica’s House" and the spot where Witness G was wounded."

[B. Evidentiary comment:]

P.11.4. Evidence of weather conditions facilitating good visibility

A. Legal source/authority and evidence:

Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, paras. 416, 515, 533, 542 :

"416. […] [T]he Prosecution has not presented decisive evidence to […] address the issue of visibility of people crossing the runway at night, to show the possible impact of night-vision devices on the ability of the SRK to target specific objects on the runway […]

"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 […]had gone outside into her front yard to play underneath a window of her house in Sedrenik.¹⁷⁷² Approximately one hour and a half after being outside in the yard, she was hit by a single bullet as she was kneeling to play by herself with flowers near a wall in the front of her house […]"

"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.

1772. Witness E, T. 4034-5."

"533. The fog had lifted by the time Anisa Pita reached her house.¹⁸⁸⁴"

"1884. Fatima Pita, T. 5892."

"542. Although Bajram Sopi stated that the victim had been targeted twice, neither he nor Nura Barjaktarevic described the weather conditions at the time of the incident.¹⁹²¹ Whether the visibility would have permitted the deliberate targeting of Sacir Bosnic from a distance¹⁹²² cannot therefore be determined."

"1921. Bajraktarevic only indicated that the incident had occurred during summertime, Bajraktarevic, T. 5578.

1922. Hinchliffe measured the distance from the location of the incident to Baba Stijena to be 460 metres, Hinchliffe, T. 12982."

[B. Evidentiary comment:]

P.11.5. Evidence of weapon or equipment that facilitates accuracy

A. Legal source/authority and evidence:

Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, para. 236:

"236. Their equipment consisted of "very long-barrelled rifles" with telescopic sights, "some kind of binoculars with a rubber eyepiece on it."⁵¹⁹ "They had a separate telescope which was not mounted on the rifle. It was much broader, much wider, than the one on a rifle, and they were able to see the target better using this device."⁵²⁰ They also had infrared sights.⁵²¹"

"519. Witness D, T. 1928-9. He identified one of their weapons as an M76 using P3648 (manual of weapons). T. 1936.

520. Witness D, T. 1934.

521. Id."

[B. Evidentiary comment:]

5.1.2. Evidence indicative of the knowledge of the perpetrator with regard to the presence of the civilian population in the attacked area

P.12. Evidence showing that the attacked area was under direct observation of the attacking forces.

P.12.1. Evidence showing that the attacked area was under direct observation of the attacking forces since its forces had closed in on the attacked area before the attack.

P.13. Evidence showing that the presence and movements of a large civilian population being obvious to close military observation.

P.14. Evidence showing that the military leaders of the attacking forces were directly concerned with negotiations with representatives of the civilian population.

P.16. Evidence of the presence of a civilian population in the attacked area being long established and renowned state of affairs.

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 Chamber’s 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."

P.17. Evidence of the complaints/protests communicated to the attacking forces with regard to casualties, wounded persons etc.

A. Legal source/authority and evidence:

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 287:

"287. One or two particular aspects of the evidence related to the issue of a civilian population in the Old Town, and in the wider Dubrovnik, warrants particular note. On 6 December 1991 the attacking JNA soldiers could hear that a defence or air -raid alarm was sounded at about 0700 hours on 6 December 1991 in Dubrovnik.⁹²⁴ In his report concerning that day Lieutenant-Colonel Jovanovic, commanding the 3 /5 mtbr, purported to assume that after the alarm the city dwellers had hidden in shelters. Hence, as he asserted in evidence, he ordered firing on the basis that anyone who was still moving around in the Dubrovnik residential area was participating in combat activities.⁹²⁵ This view assumes, of course, the presence of civilians but seeks to justify the targeting of persons and vehicles moving about on the basis suggested. The view which Lieutenant -Colonel Jovanovic purported to hold on that day does not hold up to scrutiny. Common sense and the evidence of many witnesses in this case, confirms that the population of Dubrovnik was substantially civilian and that many civilian inhabitants had sound reasons for movement about Dubrovnik during the 10 ? hours of the attack. An obvious example is those trying to reach the wounded or to get them to hospital. Others sought better shelter as buildings were damaged or destroyed. Others sought to reach their homes or places of work. There are many more examples. The purported view of Lieutenant-Colonel Jovanovic stands in contradiction with the testimony of another JNA officer, Captain Nesic, who said that he did see city-dwellers, to whom he referred as "civilians", moving about. He specifically accepted that those civilians were not jeopardising him and his unit.⁹²⁶ The presence of civilians within the Old Town was also directly communicated to the JNA at command level by the protests they received on that day from the Crisis Staff. The JNA war diary contains the record of a complaint made by Minister Rudolf to the Accused. The complaint relates to casualties and wounded persons in Dubrovnik, as well as the hitting of the Franciscan Monastery.⁹²⁷ In the finding of the Chamber the view expressed by Lieutenant-Colonel Jovanovic, and on which he acted in targeting the mortars of the 3/5 mtbr which he commanded on 6 December 1991, was clearly false. It was contrived to try to justify what was in truth the indiscriminate targeting of civilian people, vehicles and buildings in the wider Dubrovnik (albeit to the north-west of the Old Town because the Old Town was beyond the range of his mortars) without any military justification."

"924. Captain Nesic, T 8230; Lieutenant -Colonel Jovanovic, T 8112-8113; Exhibit D108.

925. Exhibit D108.

926. Captain Nesic, T 8231.

927. Exhibit D96, p 71, entry at 1600 hours."

5.1.3. Evidence of the non-existance of military objects in the attacked area

P.18. Evidence of 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, 288-289:

"279. In the Chamber’s 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 distance⁸⁹²and 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 Chamber’s 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 Accused’s 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.

5.1.4. Evidence showing that the attack was not launced or maintained in the belief that there were military objectives

A. Legal source/authority and evidence:

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, paras. 279, 284, 288-289:

"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 Rector’s 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 Rector’s Palace as being damaged in October/November.

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.

5.1.5. Evidence showing that the attacked area is physically distinct from the area where military objects exist

A. Legal source/authority and evidence:

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 279:

"892. Exhibit C1/2.

893. See supra, paras 193- 194; 211."

P.19. Evidence of the geographical location of the attacked area in relation to the area where military objects exist.

P.20. Evidence of the clearly visible boundaries of the attacked area.

P.20.1. Evidence of the clearly visible boundaries of the attacked area as marked by the medieval walls that surround the area.

P.21. Evidence of the demarcation etc being plain to see at a distance.

P.22. Evidence of the demarcation etc being obvious to the perpetrator 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:

"892. Exhibit C1/2.

893. See supra, paras 193- 194; 211."

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.

5.1.6. Evidence showing that the attacked area is legally distinct from the area where military objects exist

P.23. Evidence showing that the attacked area enjoys a World Heritage listing and the protections and immunities that are consequent on that listing.

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:

"892. Exhibit C1/2.

893. See supra, paras 193- 194; 211."

5.2.I ntent of the perpetrator to target civilians (Also consider the means of proof listed under 5.1. above)

Please also consider the means of proof listed under 5.1. above.

P.24. Evidence of the absence of military objects and/or military activity in the vicinity of the attacked area.

P.24.1. Evidence of a cease-fire.

A. Legal source/authority and evidence:

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, paras. 283-284, 288, 450 :

"283. The Chamber therefore concludes that the crime of attacks on civilians or civilian objects, as a crime falling within the scope of Article 3 of the Statute, is, as to actus reus, an attack directed against a civilian population or individual civilians, or civilian objects, causing death and/or serious injury within the civilian population, or damage to the civilian objects. As regards mens rea, such an attack must have been conducted with the intent of making the civilian population or individual civilians, or civilian objects, the object of the attack. For reasons stated above,⁹⁰⁸ the issue whether a standard lower than that of a direct intent may also be sufficient does not arise in the present case."

"908. See supra, para 281."

284. […] 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. […]

"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.

928. See supra, para 214.

929. See supra, paras 193-194."

"450. In the present case, the essential criminal conduct was an artillery attack against the Old Town inhabited by a civilian population. In the course of that attack civilians were killed and injured. The essential criminal conduct of the perpetrators is directly and comprehensively reflected in Count 3. The offence of attacks on civilians, involved an attack directed against a civilian population, causing death, and also serious injury, with the intent of making the civilian population the object of the attack. Given these circumstances, in the present case, the offence of murder adds no materially distinct element, nor does the offence of cruel treatment the gravamen of which is fully absorbed by the circumstances in which this attack on civilians occurred."

Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, paras. 230, 234, 359, 494-496, 508, 557:

"230. David Fraser, an UNPROFOR representative who was in Sarajevo from April 1994 onwards, stated that "in the area of Sniper Alley, there were no military positions [...] just civilians walking along the street.""

"234. Witness AJ testified that there were no soldiers⁵⁰³ or weapons⁵⁰⁴ in the vicinity of the incident.⁵⁰⁵"

"503. Witness AJ, T. 7150.

504. Witness AJ, T. 7144, 7150-1.

505. Witness AJ, T. 7144."

"359. The Trial Chamber finds that there was no ongoing combat activity at the time and in the vicinity of the incident.¹¹⁵⁴"

1154. As seen supra, the victim testified that shelling taking place in other places of the city could not be heard.

"h. Conclusion on Deliberateness of the Attack

494. Evidence in the Trial Record establishes that a target, such as Markale market, can be hit from a great distance with one shot if the area is pre-recorded. Niaz testified that in the four months preceding the incident at Markale market, about 10 to 12 mortar shells fell around Markale market and that most of them were of a 120 mm calibre and originated from the direction north-northeast of Sedrenik. The UNMOs who wanted to investigate these attacks were not allowed access to the northeast area of the city controlled by the SRK. After the Markale incident, Hamill visited an SRK representative positioned in the northeastern area of the city, Colonel Cvetkovic, who confirmed to him that there were a number of 120 mm mortars in Mrkovi ci and along the estimated direction of fire to the north-northeast of Markale.

495. The Majority is convinced that the mortar shell which struck Markale was fired deliberately at the market. That market drew large numbers of people. There was no reason to consider the market area as a military objective. Evidence was presented in relation to the status of the "December 22" building located by the market, which manufactured uniforms for the police and the army. It is unclear whether manufacturing was still on-going at the time of the incident but in any case it is not reasonable to consider that the employees of such a manufacturing plant would be considered legitimate targets.

496. In sum, the Majority finds beyond reasonable doubt that the 120 mm mortar shell fired at Markale market on 5 February 1994, which killed over 60 persons and wounded over 140 others, was deliberately fired from SRK-controlled territory."

"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."

"557. Witness L testified that the incident occurred in the "early morning hours",²⁰⁰⁴ that although there was no fighting in the area, the area was full of troops.²⁰⁰⁵ The evidence also shows that there was a check-point in the vicinity of the incident. Because it is reasonably possible that, in view of the location of the victim and other conditions such as the presence of troops and a check-point in the vicinity, SRK forces reasonably considered Witness L to be an enemy soldier advancing toward the frontline, the Trial Chamber is left with some doubt as to whether Witness L was deliberately targeted as a civilian. Therefore, the Trial Chamber cannot conclude beyond reasonable doubt that Witness L was deliberately targeted as a civilian and cannot consider this incident as representative of a campaign of fire against civilians."

"2004. Witness L, T. 2554.

2005. Witness L, T. 2553, 2556-7."

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 409:

"409. […] this village contained no legitimate military targets and there was no organised resistance to the attack". The accused himself admitted before the Trial Chamber that the "villagers of Ahmici, that is Bosniak Muslims," had been the victims of the attack without there having been any attempt to distinguish between the civilian population and combatants."

[B. Evidentiary comment:]

P.25. Evidence showing that no military objects, real or believed, in the attacked area were targeted.

P.26. Evidence of the extensive targeting of non-military objects in and around the attacked area concerned.

A. Legal source/authority and evidence:

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 288:

"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.⁹²⁹Hence, in the Chamber’s 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."

P.27. Evidence of repeated shooting on civilians.

A. Legal source/authority and evidence:

Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, paras 551, 555:

"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 K’s 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."

P.28. Evidence of the indiscrimate nature of a weapon employed.

P.28.1. Evidence of the use of a weapon that is difficult to guide accurately.

P.28.2. Evidence of the use of a weapon that is likely to hit non-military targets due to irregular and non-linear trajectory.

P.28.3. Evidence showing that a rocket landed in an area with no military objectives nearby.

A. Legal source/authority and evidence:

Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, footnote. 101:

"[…] In the Martic Rule 61 proceedings, the Trial Chamber regarded the use of an Orkan rocket with a cluster bomb warhead as evidence of the intent of the accused to deliberately attack the civilian population. The Chamber concluded that "in respect of its accuracy and striking force, the use of the Orkan rocket in this case was not designed to hit military target but to terrorise the civilians of Zagreb. These attacks are therefore contrary to the rules of customary and conventional international law". The Trial Chamber based this finding on the fact that the rocket was inaccurate, it landed in an area with no military objectives nearby, it was used as an antipersonnel weapon launched against the city of Zagreb and the accused indicated he intended to attack the city, Martic Rule 61 Decision, paras. 23-31. […]"

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 512:

"512. The Trial Chamber inferred from the arms used that the perpetrators of the attack had wanted to affect Muslim civilians. The "baby-bombs" are indeed "home-made mortars"¹¹²⁸ which are difficult to guide accurately. Since their trajectory is "irregular" and non-linear¹¹²⁹, they are likely to hit non-military targets. In this case, these blind weapons were sent onto Stari Vitez where they killed and injured many Muslim civilians¹¹³⁰. They also resulted in substantial material civilian damage."¹¹³¹.

"1128. Defence Brief, p. 301.

1129. Witness Djidic, PT of 29 July 1997, pp. 1242-1243.

1130. P758 to 763.

1131. Witness Djidic, PT of 29 July 1997, pp. 1238-1239."

[B. Evidentiary comment:]

P.29. Evidence of failure to take all necessary precautions to avoid injury, loss or damage to the civilian population.

A. Legal source/authority and evidence:

Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, paras. 336, 344, 345, 355, 429, 522-523:

"336. […] He agreed, however, that the headquarters of a detachment known as Kulin Ban were located about 500 metres from the point of the second explosion.¹⁰⁵³ Muhamed Kapetanovic also testified that while there were no soldiers or military activity in the vicinity of the incident […].

"1053. Todorovic, T. 8028-30."

"344. […] The Trial Chamber recalls that all four eye-witnesses to the attack testified that the third (or final) shell fell on the streets to the west – that is, Cetinjska or Klara Cetkin. So did one of the earlier shells. It follows that the 120 mm shell struck the park either first or second in sequence. It was the closest to where Kulin Ban is said to have been housed. Therefore it cannot be said that the three shells fell progressively closer to Kulin Ban. Considering the sequence of the explosions, together with the fact that the shelling ceased after just three volleys were fired, all of which landed wide of Kulin Ban (two at a distance of at least 150 metres), the Trial Chamber concludes that Kulin Ban was not the intended target of this attack.

345. The Trial Chamber thus finds that the third scheduled shelling incident constituted an attack that was, at the very least, indiscriminate as to its target (which nevertheless was primarily if not entirely a residential neighbourghood [sic]), and was carried out recklessly, resulting in civilian casualties."

"355. […] In the present case, the activity the victim was engaged in, the fact that civilians routinely fetched water at this location and her civilian clothing were indicia of the civilian status of the victim. At a disctance of 1100 metres (as determined by Hinchcliffe), the perpetrator would have been able to observe the civilian appearance of Zametica, a 48 year old civilian woman, if he was well equipped, or if no optical sight or binoculars had been available, the circumstances were such that disregarding the possibility that the victim was civilian was reckless.¹¹³⁰"

"1130. There is some discrepancy as to the colour of the clothing of the victim. Vahida Zametica testified that her mother wore a brown skirt (T. 3486), while [ahinovic testified that the victim was wearing a multicoloured skirt (T. 3426). The Trial Chamber recalls that such details have a bearing if the clothing of the victim could have led the perpetrator – along with other details such as the carrying of a weapon or involvement in a military activity. to believe that the person targeted was not 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."

"522. Although it is convinced that at 6:00 hours in a July morning there is light, given the absence of explicit indications as to the exact level of luminosity at the time of the incident, the Majority cannot exclude the possibility that the person firing at Mejra Jusovic failed to notice that she was a middle-aged civilian woman carrying wood. Nonetheless, the Majority is satisfied that the absence of military presence in the area of the incident,¹⁸¹² which consisted of open space except for three nearby houses,¹⁸¹³ should have cautioned the perpetrator to confirm the military status of his victim before firing.

523. The Majority therefore finds that Mejra Jusovic was fired upon from SRK-controlled territory in reckless disregard of the possibility that she was a civilian."

"1812. Jusovic, T. 4212. Mejra Jusovic did not indicate during her testimony that there was any ongoing military exchange which she could hear at the time of the incident. Another resident of Sedrenik, Nazija Ocuz, testified that from 1992 through 1994, she never saw any heavy military equipment or weapons in the area where both Mejra Jusovic and she collected firewood at night, Ocuz, T. 4174-6.

1813. P3279R (360 degree pphotograph of the location of scheduled sniping incident number 8)."

P.30. Evidence disproving accident caused by stray or ricocheting bullet

P.30.1. Evidence showing that one single shot was fired and directly hit the victim.

P.30.2. Evidence showing that soldiers were not garrisoned in the immediate vicinity of the spot where the incident occurred.

P.30.3. Evidence of the absence of military object nearby.

P.30.4. Evidence of the absence of any fighting ongoing in the area at the time of the incident.

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, 320-321, 517, 537:

"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)."

321. The Trial Chamber finds that Sanela Mutarovic, a civilian, was deliberately targeted from SRK-controlled territory."

"934. Defence Final Trial Brief, para. 405.

935. T. 13898-9.

936. Omerovic, T. 3844. She later confirmed that the soldiers 뱓old us to hurry up because a few moments before sniper fire had been opened? Omerovic, T. 3881.

938. Hinchliffe, T. 12994.

"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."

"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:]

P.31. Evidence showing that the market area being attacked drew large number of people.

A. Legal source/authority and evidence:

Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, paras. 494-496:

"h. Conclusion on Deliberateness of the Attack