INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING
APPLICATION OF THE INTERNATIONAL CONVENTION FOR THE SUPPRESSION
OF THE FINANCING OF TERRORISM AND OF THE INTERNATIONAL CONVENTION
ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION
(UKRAINE V. RUSSIAN FEDERATION)
VOLUME XIV OF THE ANNEXES
TO THE MEMORIAL
SUBMITTED BY UKRAINE
12 JUNE 2018
TABLE OF CONTENTS
Annex 465 Prosecutor v. Martiü, Case No. IT-95-11-T, Trial Chamber Judgment, paras. 4
n.4, 472 (12 June 2007)
Annex 466 Prosecutor v. Dragomir Miloševiü, Case No. IT-98-29/1-T, Trial Chamber
Judgment, p. 291, para. 881 (12 December 2007)
Annex 465
Prosecutor v. Marti, Case No. IT-95-11-T, Trial Chamber Judgment, paras. 4 n.4, 472 (12 June
2007)
UNITED
NATIONS
Case No. IT-95-11-T
Date: 12 June 2007
International Tribunal for the Prosecution of
Persons Responsible for Serious Violations of
International Humanitarian Law Committed in
the Territory of Former Yugoslavia since 1991
Original: English
IN TRIAL CHAMBER I
Before: Judge Bakone Justice Moloto, Presiding
Judge Janet Nosworthy
Judge Frank Höpfel
Registrar: Mr. Hans Holthuis
Judgement of: 12 June 2007
PROSECUTOR
v.
MILAN MARTI]
JUDGEMENT
The Office of the Prosecutor:
Mr. Alex Whiting
Ms. Anna Richterova
Mr. Colin Black
Ms. Nisha Valabhji
Counsel for Milan Marti:
Mr. Predrag Milovan~evi}
Mr. Nikola Perovi}
Case No. IT-95-11-T 2 12 June 2007
Contents
List of abbreviations and acronyms .................................................................................................5
I. INTRODUCTION..........................................................................................................................7
A. The Accused Milan Marti..........................................................................................................7
B. Overview of the case against Milan Marti.................................................................................7
C. Interpretation of the Indictment...................................................................................................9
D. General considerations regarding the evaluation of evidence ..................................................12
1. General...................................................................................................................................12
2. Witnesses whose evidence has been assessed with particular caution ..................................15
II. APPLICABLE LAW ..................................................................................................................18
A. General requirements of Article 3 of the Statute ......................................................................18
1. Generally................................................................................................................................18
2. Existence of an armed conflict and the nexus requirement ...................................................19
3. The Tadi conditions..............................................................................................................20
4. “Persons taking no active part in the hostilities” ...................................................................21
B. General requirements of Article 5 of the Statute.......................................................................21
1. Elements.................................................................................................................................21
2. Applicability of Article 5 to non-civilians .............................................................................23
C. Murder.......................................................................................................................................27
D. Extermination............................................................................................................................28
E. Attacks on civilians ...................................................................................................................29
F. Torture .......................................................................................................................................30
G. Cruel treatment..........................................................................................................................32
H. Other inhumane acts..................................................................................................................32
I. Imprisonment..............................................................................................................................33
J. Wanton destruction of villages, or devastation not justified by military necessity....................34
K. Destruction or wilful damage done to institutions dedicated to education or religion .............36
L. Plunder of public or private property ........................................................................................37
M. Deportation and other inhumane acts (forcible transfer)..........................................................38
N. Persecution ................................................................................................................................40
O. The Defence’s challenge to the concept of JCE .......................................................................42
III. FACTUAL FINDINGS.............................................................................................................43
A. Background ...............................................................................................................................43
B. The SAO Krajina.......................................................................................................................44
1. Development of the SAO Krajina..........................................................................................44
2. Support provided to the SAO Krajina....................................................................................49
3. Training camp in Golubi and “Marti’s Police” ..................................................................51
C. The RSK....................................................................................................................................53
1. Development of the RSK .......................................................................................................53
2. Cooperation with and assistance from Serbia........................................................................58
D. Armed clashes between Serb and Croatian forces ....................................................................60
1. During spring and summer of 1991 .......................................................................................60
2. Hrvatska Dubica, Cerovljani and Ba}in.................................................................................63
(a) Take-over of Hrvatska Kostajnica and Hrvatska Dubica....................................................... 63
(b) Hrvatska Dubica..................................................................................................................... 64
(c) Cerovljani ............................................................................................................................... 68
(d) Ba}in and surroundings.......................................................................................................... 69
(e) Destruction in Cerovljani, Hrvatska Dubica, and Bain after December 1991...................... 71
3. Saborsko area .........................................................................................................................72
(a) Municipality of Plaški ............................................................................................................ 72
Case No. IT-95-11-T 3 12 June 2007
(b) Lipovaa................................................................................................................................. 73
(c) Poljanak and Vukovii ........................................................................................................... 76
(d) Saborsko................................................................................................................................. 79
(i) Attack on Saborsko on 12 November 1991 ........................................................................ 81
(ii) Killings in Saborsko on 12 November 1991...................................................................... 83
4. [kabrnja and Nadin................................................................................................................86
(a) [kabrnja, Nadin and surrounding villages ............................................................................. 86
(b) Situation in Škabrnja, Nadin and surroundings prior to 18 November 1991......................... 86
(c) Attack on [kabrnja and Nadin on 18 and 19 November 1991............................................... 88
(d) Evidence of units present in Škabrnja.................................................................................... 90
(e) Killings in Škabrnja and Nadin .............................................................................................. 92
(i) Killings at Slavko Šegari’s house in Ambar on 18 November 1991 ................................ 92
(ii) Killings at Petar Pavi~i}’s house in Škabrnja on 18 November 1991 ............................... 93
(iii) Killings at Pere Sopi’s house in Nadin on 19 November 1991 ...................................... 95
(iv) Other killings in Škabrnja and Nadin ............................................................................... 96
(f) Investigations into the events in Škabrnja and Nadin on 18 and 19 November 1991 .......... 100
(g) Destruction in [kabrnja and Nadin ...................................................................................... 100
5. Bru{ka ..................................................................................................................................101
E. Detention-related crimes .........................................................................................................104
1. SJB in Titova Korenica........................................................................................................104
2. Detention facilities in Benkovac..........................................................................................105
3. Detention facilities in Knin..................................................................................................105
(a) Detention at the JNA 9th Corps barracks.............................................................................. 106
(b) Detention facility at the old hospital in Knin ....................................................................... 107
F. Crimes of deportation and forcible transfer.............................................................................110
G. Attacks on Zagreb on 2 and 3 May 1995 ................................................................................113
1. “Operation Flash” ................................................................................................................113
2. Shelling of Zagreb................................................................................................................114
(a) 1 May 1995 – Preparation for attack.................................................................................... 114
(b) 2 May 1995 .......................................................................................................................... 114
(c) 3 May 1995........................................................................................................................... 116
3. Involvement of the RSK leadership in the shelling of Zagreb.............................................117
H. Acts of persecution carried out against non-Serbs in the SAO Krajina and the RSK ............120
1. 1991......................................................................................................................................120
2. 1992......................................................................................................................................121
3. 1993-1995 ............................................................................................................................122
I. The political objective of the Serb leadership ..........................................................................122
J. Milan Marti’s knowledge of and reactions to crimes committed...........................................125
IV. RESPONSIBILITY OF MILAN MARTI ..........................................................................129
A. Findings on the crimes charged ..............................................................................................129
1. General requirements of Article 3 of the Statute .................................................................129
2. General requirements under Article 5 of the Statute ...........................................................131
3. Counts 1, 3 to 4, and 12 to 14 – Persecution, murder, destruction and plunder (Articles 3
and 5).................................................................................................................................132
(a) Hrvatska Dubica................................................................................................................... 132
(b) Cerovljani............................................................................................................................. 134
(c) Bain and surroundings........................................................................................................ 135
(d) Lipovaa and neighbouring hamlets .................................................................................... 137
(e) Vukovii and Poljanak ......................................................................................................... 138
(f) Saborsko ............................................................................................................................... 140
(g) Vaganac................................................................................................................................ 142
(h) Škabrnja ............................................................................................................................... 143
(i) Bruška ................................................................................................................................... 147
4. Count 2 – Extermination......................................................................................................148
Case No. IT-95-11-T 4 12 June 2007
5. Counts 1 and 5 to 9 – Detention-related crimes and persecution ........................................149
(a) Detention facility at the JNA 9th Corps barracks in Knin..................................................... 149
(b) Detention facility at the old hospital in Knin ....................................................................... 150
(c) Detention facility at the SJB in Titova Korenica ................................................................. 151
(d) Detention facilities in Benkovac .......................................................................................... 152
6. Counts 1, 10 and 11 – Persecution, deportation and forcible transfer.................................153
7. Counts 1 and 15 to 19 – Shelling of Zagreb on 2 and 3 May 1995 .....................................155
B. Findings on the individual criminal responsibility of Milan Marti .......................................156
1. JCE pursuant to Article 7(1) of the Statute..........................................................................156
2. Ordering pursuant to Article 7(1) of the Statute ..................................................................158
3. Findings on Counts 1 to 14 ..................................................................................................158
(a) Common purpose ................................................................................................................. 158
(b) Plurality of persons .............................................................................................................. 160
(c) Milan Marti’s participation in the JCE ............................................................................... 161
4. Findings on Counts 1 and 15 to 19 ......................................................................................164
(a) Milan Marti’s ordering of the shelling of Zagreb on 2 and 3 May 1995............................ 164
(b) Military targets in Zagreb and the nature of the M/87 Orkan .............................................. 165
(c) Defence argument on reprisals ............................................................................................. 166
(d) General requirements of Article 3 and Article 5 of the Statute............................................ 168
(e) Counts 15 and 16 – Murder.................................................................................................. 169
(f) Counts 17 and 18 – Inhumane acts under Article 5(i) and cruel treatment under Article 3. 169
(g) Count 19 – Attacks on civilians under Article 3.................................................................. 169
(h) Count 1 – Persecution .......................................................................................................... 170
C. Cumulative convictions...........................................................................................................170
D. Summary of the Trial Chamber’s findings in relation to each count......................................172
V. SENTENCING LAW AND FACTS........................................................................................173
A. Applicable law ........................................................................................................................173
1. Principles and purposes of sentencing .................................................................................175
2. Gravity and individual circumstances of the convicted person ...........................................175
3. Aggravating and mitigating factors .....................................................................................177
(a) Aggravating circumstances .................................................................................................. 178
(b) Mitigating circumstances ..................................................................................................... 180
4. General practice regarding sentencing in the former Yugoslavia........................................183
VI. DISPOSITION.........................................................................................................................185
ANNEX A – PROCEDURAL HISTORY....................................................................................187
A. Pre-trial proceedings ...............................................................................................................187
B. Trial proceedings.....................................................................................................................189
1. Overview..............................................................................................................................189
2. Testimony and evidence of Milan Babi} .............................................................................191
3. Site visit ...............................................................................................................................193
ANNEX B – LIST OF CASES, SOURCES AND SHORT CITES ...........................................194
C. ICTY........................................................................................................................................194
D. ICTR........................................................................................................................................197
E. ICJ............................................................................................................................................197
F. Other ........................................................................................................................................197
Case No. IT-95-11-T 5 12 June 2007
List of abbreviations and acronyms
Additional Protocol I Protocol Additional to the Geneva Conventions of 12 August
1949, and Relating to the Protection of Victims of International
Armed Conflicts (Protocol I), Geneva, 12 December 1977
Additional Protocol II Protocol Additional to the Geneva Conventions of 12 August
1949, and Relating to the Protection of Victims of Non-
International Armed Conflicts (Protocol II), Geneva, 12
December 1977
APC Armoured Personnel Carrier (vehicle)
BiH Bosnia and Herzegovina
Common Article 3 Article 3 common to the four Geneva Conventions of 1949
Defence Defence of Milan Marti
Defence Final Trial Brief Final trial brief of Milan Marti, filed confidentially on 5 Jan
2007; public version filed on 17 Jan 2007
ECHR European Convention for the Protection of Human Rights and
Fundamental Freedoms, Rome, 4 November 1950
Ex. Exhibit
fn Footnote
FNU First name unknown
Geneva Convention III Geneva Convention Relative to the Treatment of Prisoners of War
of 12 August 1949
Geneva Convention IV Geneva Convention Relative to the Protection of Civilian Persons
in Time of War of 12 August 1949
Geneva Conventions Geneva Conventions I to IV of 12 August 1949
HDZ Croatian Democratic Union
HVO Croatian Armed Forces
ICCPR International Covenant on Civil and Political Rights, G.A. res.
2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc.
A/6316 (1966), 999 U.N.T.S. 171
ICRC International Committee of the Red Cross
Indictment Second Amended Indictment in this case, filed on 9 Dec 2005
JCE Joint criminal enterprise pursuant to Article 7(1) of the Statute
JNA Yugoslav People’s Army
MUP Ministry of Interior
p. Page
pp Pages
para. Paragraph
paras Paragraphs
PJM Special Police Brigade
Prosecution The Office of the Prosecutor
Prosecution Final Trial Brief Final Trial Brief of the Prosecution, filed confidentially on 5 Jan
2007; public version filed on 17 Jan 2007
Rules Rules of Procedure and Evidence of the Tribunal
Rules of Detention Rules Governing the Detention of Persons Awaiting Trial or
Appeal Before the Tribunal or Otherwise Detained on the
Authority of the ICTY
RS Republika Srpska in Bosnia and Herzegovina
RSK Republic of Serbian Krajina
SAO Serbian Autonomous District
SDB State Security Service
SDS Serbian Democratic Party
SFRY Socialist Federal Republic of Yugoslavia
Case No. IT-95-11-T 6 12 June 2007
SJB Public Security Station, i.e. police station
SNC Serbian National Council
Statute Statute of the International Tribunal for the Former Yugoslavia
established by Security Council Resolution 827, as amended by
Resolution 1481
SUP Secretariat for Internal Affairs
SVK Army of the Republic of Serbian Krajina
T. Page in the transcript of this trial
TO Territorial Defence
UN United Nations
UNCIVPOL United Nations Civilian Police
UNCRO United Nations Confidence Restoration Operation
UNDU United Nations Detention Unit
UNMO United Nations Military Observers
UNPA United Nations Protected Area
UNPROFOR United Nations Protection Force
VRS Army of the Republika Srpska
VJ Army of the Federal Republic of Yugoslavia
Z-4 Plan Zagreb 4 Plan
ZNG Croatian National Guards Corps
Case No. IT-95-11-T 7 12 June 2007
I. INTRODUCTION
A. The Accused Milan Marti
1. Milan Marti was born on 18 November 1954 in the village of Žagrovi, Knin municipality
in the Republic of Croatia, SFRY.1 He graduated from the Post-Secondary Police School in Zagreb
and between 1976 and 1981 worked as a policeman at the Public Security Station (“SJB”) in
Šibenik. After 1982, Milan Marti was a Junior Police Inspector in Knin and was eventually
promoted to Chief of the SJB.2
2. From 4 January 1991 until August 1995, Milan Marti held various positions within the
Serbian Autonomous Region of Krajina (“SAO Krajina”) and the Republic of Serbian Krajina
(“RSK”) governments, including Chief of the Police in Knin, Secretary for Internal Affairs of the
SAO Krajina, Minister of Defence of the SAO Krajina, Deputy Commander of the TO of the SAO
Krajina, Minister of the Interior of the SAO Krajina and of the RSK, and President of the RSK.3
B. Overview of the case against Milan Marti
3. The Prosecutor (“Prosecution”) charges Milan Marti with 19 counts brought under Article
3 and Article 5 of the Statute of the Tribunal (“Statute”).4
4. The Prosecution alleges that Serb forces, comprised of, inter alia, units of the Yugoslav
People’s Army (”JNA”), later the Yugoslav Army (“VJ”), the Republika Srpska (“RS”) army
(“VRS”), the Territorial Defence (“TO”), and forces of the Ministry of the Interior (“MUP”) of both
the SAO Krajina, later the RSK, and the Republic of Serbia (“Serbia”), including the police forces
of the SAO Krajina and the RSK, commonly referred to as “Marti’s Police”, and paramilitary
units, committed persecutions in the SAO Krajina and the RSK between August 1991 and
December 1995. It is further alleged that these acts of persecution included the extermination and
murder of hundreds of Croats, Muslims and other non-Serb civilians, including in the villages of
Hrvatska Dubica, Cerovljani, Bain, Saborsko, Poljanak (including the hamlet of Vukovii),
Lipovaa (and neighbouring villages), Škabrnja, Nadin, and Bruška (including the hamlet of
Marinovii), the prolonged and routine imprisonment of hundreds of Croats, Muslims and non-Serb
1 Ex. 76. See also Ex. 493, p. 1, which provides Milan Marti’s birthplace as “Žagori near Knin”.
2 Ex. 493, p. 1.
3 See infra paras 135, 151, 156.
4 Article 3: Counts 4 and 16: Murder, Count 8, Torture, Counts 9 and 18: Cruel treatment, Count 12: Wanton
destruction of villages, or devastation not justified by military necessity, Count 13: Destruction or wilful damage done
to institutions dedicated to education or religion, Count 14: Plunder of public or private property, Count 19: Attacks on
civilians. Article 5: Count 1: Persecutions, Count 2: Extermination, Counts 3 and 15: Murder, Count 5: Imprisonment,
Count 6: Torture, Count 7 and 17: Inhumane Acts, Count 10: Deportation, Count 11: Other inhumane Acts (Forcible
transfer).
Case No. IT-95-11-T 8 12 June 2007
civilians in specified detention facilities, the torture and inhumane treatment of prisoners, and the
deportation and forcible transfer of tens of thousands of non-Serb civilians from the territory of the
SAO Krajina and the RSK. In addition, it is alleged that public and private property in the SAO
Krajina and the RSK was intentionally destroyed or plundered, including buildings dedicated to
religion or education, that restrictive and discriminatory measures were imposed against the Croat,
Muslim and other non-Serb civilian population. Moreover, it is alleged that unlawful attacks were
carried out on Zagreb and undefended Croat and Muslim villages.
5. For each count, individual criminal responsibility is charged under both Article 7(1) and (3)
of the Statute. The Prosecution alleges that Milan Marti participated in a joint criminal enterprise
(“JCE”) together with, among others, Slobodan Miloševi, Veljko Kadijevi, Blagoje Adži, Milan
Babi, Jovica Staniši, Franko “Frenki” Simatovi, Radovan Karadži, Ratko Mladi and other
named and unnamed individuals of, inter alia, the JNA, later the VJ, the RSK army (“SVK”), the
VRS, the TO, and forces of the MUP of both the SAO Krajina, later the RSK, and Serbia, including
“Marti’s Police”, and the State Security Service (“SDB”) of Serbia, and Serb paramilitary forces. It
is alleged that the JCE came into existence before 1 August 1991 and continued until at least
August 1995, and that the common purpose of the JCE was “the forcible removal of a majority of
the Croat, Muslim and other non-Serb population from approximately one-third of the territory of
the Republic of Croatia “Croatia” and large parts of the Republic of Bosnia and Herzegovina
“BiH” in order to make them part of a new Serb-dominated state.”5 The Prosecution alleges that
all crimes charged in the Indictment were within the object of the JCE and that at all relevant times
Milan Marti held the necessary state of mind for the commission of each of these crimes. In the
alternative, the Prosecution alleges that the crimes enumerated in Counts 1 to 9 and 12 to 19 were a
natural and foreseeable consequence of the execution of the common purpose of the JCE and that
Milan Marti was aware that such crimes were the possible outcome of the execution of the JCE.
6. The Prosecution alleges that Milan Marti participated in the JCE by, inter alia, creating,
financing, supplying, training and directing the “Marti’s Police” and the TO of the SAO Krajina
and the RSK, and by creating, training and directing special police forces of the SDB of Serbia.
Moreover, the Prosecution alleges that Milan Marti participated in the planning, preparation and
execution of the take-over of territories in the SAO Krajina and RSK territory, and that Milan
Marti personally participated in military actions and subsequent crimes of these forces, including
in the subsequent removal of the non-Serb population.
5 Indictment, paras 4, 6.
Case No. IT-95-11-T 9 12 June 2007
7. The Prosecution also charges Milan Marti with responsibility for each count pursuant to
Article 7(1) for having planned, instigated, ordered, committed or otherwise aided and abetted in
the planning, preparation, execution and commission of these crimes.
8. The Prosecution alleges that Milan Marti, by virtue of the various positions he held from
1991 to 1995 in the SAO Krajina and the RSK, is individually criminally responsible pursuant to
Article 7(3) of the Statute as a superior for failing to prevent or punish the crimes charged and
allegedly committed by the above-mentioned forces.
C. Interpretation of the Indictment
9. Pursuant to Article 18(4) of the Statute, an indictment shall contain “a concise statement of
the facts and the crime or crimes with which the accused is charged”. According to the well
established jurisprudence of the Tribunal, this means that the indictment must set out the material
facts underpinning the charges “with enough detail to inform a defendant clearly of the charges
against him so that he may prepare his defence.”6
10. Some paragraphs of the Indictment identify specific victims and/or sites of alleged crimes,7
while other paragraphs of the Indictment use a non-exhaustive enumeration of victims and crime
sites.8 The Trial Chamber also heard evidence regarding victims and sites of crimes, which are not
specified in the Indictment. Having regard to the right of the accused to be informed promptly and
in detail of the nature and cause of the charges against him,9 and in view of the degree of specificity
required in the Indictment, the Trial Chamber has considered the evidence as described below.10
6 Kupreški et al. Appeal Judgement, para. 88. See also Naletili} and Martinovi} Appeal Judgement, para. 23; Staki}
Appeal Judgement, para. 116; Kvo~ka et al. Appeal Judgement, para. 28; Bla{ki} Appeal Judgement, para. 209.
7 E.g. paras 26, 28-29, 32-34 and 39 of the Indictment.
8 E.g. paras 23(a), 23(b)-(d), 30-31 of the Indictment.
9 Article 21(4) (a) of the Statute.
10 The Appeals Chamber in Kupreški et al. held that: “A decisive factor in determining the degree of specificity with
which the Prosecution is required to particularise the facts of its case in the indictment is the nature of the alleged
criminal conduct charged to the accused,” Kupreški et al. Appeal Judgement, para. 89 (emphasis added). In a case
based upon individual responsibility where it is not alleged that the accused personally committed the acts for which he
is to be held responsible, what is most material is the conduct of the accused by which he may be found to have
planned, instigated, ordered, committed or otherwise aided and abetted, Prosecutor v. Milorad Krnojelac, Case No. IT-
97-25-PT, Decision on Preliminary Motion on Form of Amended Indictment, 11 Feb 2000, para. 18. Where it is alleged
that the accused planned, instigated, ordered, or aided and abetted the alleged crimes, the Prosecution is required to
identify the “particular acts” or “the particular course of conduct” on the part of the accused which forms the basis for
the charges in question, Naletili} and Martinovi} Appeal Judgement, para. 24. If the Prosecution relies upon a theory of
JCE, it must plead the purpose of the enterprise, the identity of the participants, and the nature of the accused’s
participation in the enterprise, Kvo~ka et al. Appeal Judgement, para. 28. The degree of precision required for the
material facts relating to those acts of other persons is higher than that required for an allegation of superior
responsibility, but lower than where the accused is alleged to have personally done the acts in question, Prosecutor v.
Milorad Krnojelac, Case No. IT-97-25-PT, Decision on Preliminary Motion on Form of Amended Indictment, 11 Feb
2000, para. 18. See also Prli} Decision, para. 46. Furthermore, in certain cases “the sheer scale of the alleged crimes
‘makes it impracticable to require a high degree of specificity in such matters as the identity of the victims and the dates
for the commission of the crimes,’” Kupreški et al. Appeal Judgement, para. 89.
Case No. IT-95-11-T 10 12 June 2007
11. In determining the innocence or guilt of Milan Marti in relation to the charges in
paragraphs 26, 28, 29, and 32 to 34 of the Indictment, in light of the wording of these paragraphs,11
the Trial Chamber has only considered evidence concerning victims listed in Annex 1 of the
Indictment.
12. In determining the innocence or guilt of Milan Marti in relation to the charges in
paragraphs 27, 30 and 31 of the Indictment, in light of the wording of these paragraphs, the Trial
Chamber has considered evidence concerning victims who are not listed in Annex I to the
Indictment but who are proven beyond reasonable doubt as having been killed during the events
described in those paragraphs.12
13. In determining the innocence or guilt of Milan Marti under Count 1 (Persecutions), the
Trial Chamber has considered evidence concerning unlisted victims of the events described in
paragraph 23(a) of the Indictment only with respect to the events described in paragraphs 27, 30 and
31 of the Indictment.
14. Concerning the events described in paragraphs 23(b) to (d) of the Indictment relevant to
crimes allegedly committed in detention facilities, the Trial Chamber is of the view that the range of
crime sites shall correspond to the scope of paragraph 39 of the Indictment.
15. As to paragraph 39 of the Indictment, and in relation to Count 5 (Imprisonment), Counts 6
and 8 (Torture), Count 7 (Inhumane acts) and Count 9 (Cruel treatment), in light of the wording of
paragraph 38 of the Indictment, the Trial Chamber finds that the relevant time period applicable to
these counts is from August 1991 to December 1992. The Trial Chamber finds that this time period
shall also govern paragraphs 23(b) to (d) of the Indictment relating to Count 1 (Persecutions), which
concern the same events.
16. In determining the innocence or guilt of Milan Marti under Count 12 (Wanton destruction
or devastation), Count 13 (Destruction or wilful damage done to institutions dedicated to education
or religion) and Count 14 (Plunder), in light of the wording of paragraph 47 of the Indictment, the
11 These paragraphs provide an exhaustive enumeration of victims allegedly killed in each village and further identify
each victim by referring to Annex I to the Indictment listing their names. Paragraph 26 refers to “fifty-six victims”
allegedly killed in a location near the village of Bain and “thirty civilians from Bain and twenty-four from the villages
Dubica and Cerovljani” allegedly killed into an unknown location. Paragraph 28 refers to “seven civilians” allegedly
killed in Lipova~a. Paragraph 29 refers to the alleged execution of “ten civilians” in Vukovii near Poljanak. Paragraph
32 refers to the killing of “seven non-Serb civilians” in the village of Nadin; paragraph 34 refers to “ten civilians,
among them nine Croats” allegedly killed in the village of Bru{ka (emphasis in original).
12 These paragraphs provide a non-exhaustive enumeration of victims allegedly killed in each village. Paragraph 27
alleges that members of Marti’s Police and other Serb forces entered the villages of Saborsko, Poljanak and Lipova~a
and they allegedly killed “all remaining non-Serb inhabitants they found”. Paragraph 30 alleges that “members of
Marti’s Police and the JNA and the TO entered the village of Saborsko where they allegedly killed at least twenty-nine
Case No. IT-95-11-T 11 12 June 2007
Trial Chamber has considered only evidence concerning destruction and plunder allegedly
committed in the villages listed in paragraph 47 during the period between August and December
1991. The Trial Chamber further finds that this time period shall also govern paragraph 23(j) of the
Indictment relating to Count 1, which concerns the same events.
17. There are situations where the Trial Chamber is satisfied that the Defence has been put on
notice of the Prosecution’s case regarding a particular unspecified victim or crime site that is not
specifically included in the Indictment, in a manner which has allowed the Defence to prepare its
case adequately.13 In such cases, the Trial Chamber has considered this evidence as a basis for a
conviction under the relevant counts.
18. The Trial Chamber notes that in cases where the evidence on unspecified victims and crime
sites was not relied upon to determine the innocence or guilt of Milan Marti, such evidence has
been utilised, where appropriate, as corroborative of a consistent pattern of conduct, from which
inference may be drawn relevant to the elements of crimes with which Milan Marti is charged.14
19. The Trial Chamber notes that the Prosecution has decided “not to pursue those crimes
alleged in the indictment that occurred in Bosnia and Herzegovina, with the exception of those
crimes occurring in Bosanski Novi (including Bosanski sic Kostajnica …).”15 At the Rule 98 bis
stage of the trial, the Prosecution stated that it had reviewed the evidence and concluded that the
evidence did not, even under the standard applicable pursuant to Rule 98 bis, support a conviction
on the factual allegations under Counts 5 to 9 concerning detention at the Bosanska Kostajnica SJB
and the Bosanski Novi SJB.16 The Trial Chamber will therefore only consider evidence relating to
Croat civilians”. Paragraph 31 alleges that members of Marti’s Police and other Serb forces entered Škabrnja and
allegedly “killed at least thirty-eight non-Serb civilians in their homes or in the streets” (emphasis in original).
13 The Prosecution Pre-Trial Brief, its opening statement and Rule 65 ter witness summaries provided to the Defence
sufficiently in advance could satisfy this requirement, Naletili} and Martinovi} Appeal Judgement, paras 27, 45;
Kupre{ki} et al. Appeal Judgement, paras 114-124; Kvo~ka et al. Appeal Judgement, paras 34, 43-54; Gacumbitsi
Appeal Judgement, paras 55-58. The relevant factors to be considered should be: the timing of these filings, the
relevance of the information to the ability of the accused to prepare his defence, and the impact of the newly-disclosed
material facts on the Prosecution case, Ntakirutimana Appeal Judgement, para. 27; Kupreški et al. Appeal Judgement,
paras 119-121. The mere provision of witness statements or of potential exhibits by the Prosecution pursuant to the
disclosure requirements does not suffice to inform an accused of material facts which the Prosecution intends to prove
at trial, Naletili} and Martinovi} Appeal Judgement, para. 27; Ntakirutimana Appeal Judgement, para. 27, citing
Prosecution v. Radoslav Branin and Momir Tali, Case No. IT-99-36-PT, Decision on Form of Further Amended
Indictment and Prosecution Application to Amend, 26 Jun 2001, para. 62. The Defence’s submissions at trial, for
example in a motion for judgement of acquittal, Final Trial Brief or closing arguments, may in some instances assist in
an assessment as to what extent the Defence was put on notice of the Prosecution’s case and was able to respond to the
Prosecution’s allegations, Naletili} and Martinovi} Appeal Judgement, para. 27, citing Kvoka et al. Appeal Judgement,
paras 52, 53; Kordi and erkez Appeal Judgement, para. 148. Cf. Mrk{i} et al. Decision, para. 19.
14 Rule 93 of the Rules; Kvo~ka et al. Trial Judgement, fn 7, paras 547, 556; Krnojelac Trial Judgement, para. 230.
15 Prosecution’s Estimate of Time Required for Prosecution Case, 23 November 2005, para. 2; Pre-Trial Conference, 12
Dec 2005, T. 222.
16 Indictment, paras 39 (d) and (e), respectively; Rule 98 bis arguments, 26 Jun 2006, T. 5889-5890.
Case No. IT-95-11-T 12 12 June 2007
Bosanski Novi and Bosanska Kostajnica under Counts 1 (except evidence under paragraph 23(b) of
the Indictment, which concerns detention), 10 and 11.
D. General considerations regarding the evaluation of evidence
1. General
20. The Trial Chamber has considered the charges against Milan Marti in light of the entire
trial record, and in this regard has carefully assessed and weighed the evidence in accordance with
the Statute and its Rules of Procedure and Evidence (“Rules”). Where no guidance is given by these
sources, it has assessed the evidence in such a way as will best favour a fair determination of the
case and which is consistent with the spirit of the Statute and the general principles of law.17
21. Article 21(3) of the Statute provides that the accused shall be presumed innocent until
proven guilty.18 The Prosecution therefore bears the burden of proving the guilt of the accused, and
in accordance with Rule 87(A) of the Rules, the Prosecution must do so beyond reasonable doubt.19
In determining whether the Prosecution has done so with respect to each particular count, the Trial
Chamber has carefully considered whether there is any reasonable conclusion available from the
evidence other than the guilt of the accused.20
22. Article 21(4)(g) of the Statute provides that no accused shall be compelled to testify against
himself. In the present case, Milan Marti exercised his right not to testify.21 No adverse inferences
were drawn from the fact that he did not testify.
23. Pursuant to Rule 84 bis of the Rules, Milan Marti made a statement on 13 December
2005.22 In accordance with Rule 84 bis (B) of the Rules, the Trial Chamber has considered the
probative value, if any, of the statement and has found that the statement does not have any
probative value.23
17 Rule 89(B) of the Rules.
18 This provision is in accordance with all major human rights instruments, see e.g. International Covenant on Civil and
Political Rights, Article 14(2); European Convention on Human Rights, Article 6(2).
19 E.g. Krnojelac Trial Judgement, para. 66; Limaj et al. Trial Judgement, para. 10. See also Ntakirutimana Appeal
Judgement, para. 140; Niyitegeka Appeal Judgement, para. 60. The fact that the Defence has not challenged certain
factual allegations contained in the Indictment does not mean that the Trial Chamber has accepted these facts to be
proven. Furthermore, the Trial Chamber interprets the standard “beyond reasonable doubt” to mean a high degree of
probability; it does not mean certainty or proof beyond a shadow of a doubt.
20 elibii Appeal Judgement, para. 458.
21 Hearing, 24 Aug 2006, T. 7122.
22 Hearing, 13 Dec 2005, T. 296-318.
23 With respect to the opening statement of Milan Marti, see Rule 84 bis (B) of the Rules.
Case No. IT-95-11-T 13 12 June 2007
24. The Trial Chamber issued a decision adopting guidelines on the standards governing the
admission of evidence.24 In addition to direct evidence, the Trial Chamber has admitted hearsay and
circumstantial evidence.25 In evaluating the probative value of hearsay evidence, the Trial Chamber
has carefully considered all indicia of its reliability, including whether the evidence was “voluntary,
truthful and trustworthy”, and has considered its content and the circumstances under which the
evidence arose.26 In some instances, the Trial Chamber has relied upon circumstantial evidence in
order to determine whether or not a certain conclusion could be drawn. The Trial Chamber recalls
that the conclusion must be the only reasonable conclusion available.27
25. In evaluating the evidence given viva voce, the demeanour and conduct of witnesses has
been considered. The Trial Chamber has also given due regard to the individual circumstances of a
witness, including the witness’ possible involvement in the events and fear of self-incrimination, the
witness’ relationship with Milan Marti and any protective measures granted to the witness. The
Trial Chamber has also assessed the internal consistency of each witness’ testimony and other
features of his or her evidence, as well as whether there is corroborating evidence. Mindful that the
evidence presented in this case relates to events which occurred between 1991 and 1995, the Trial
Chamber has in general not treated minor discrepancies between the evidence of witnesses, or
between the evidence of a particular witness in court and his or her prior statement, as discrediting
their evidence where that witness nevertheless recounted the essence of an incident charged in
acceptable detail.28
26. In some instances only one witness has given evidence of an incident with which Milan
Marti has been charged. In this regard the Trial Chamber recalls that the Appeals Chamber has
held that the testimony of a single witness on a material fact does not, as a matter of law, require
corroboration.29
27. Pursuant to Rule 92 bis and Rule 92 ter, which allow the admission of written statements
and former testimony of witnesses with or without cross-examination, the Trial Chamber has
admitted such statements and testimony in lieu of viva voce testimony. As regards evidence in
24 Decision Adopting Guidelines on the Standards Governing the Admission of Evidence, 19 Jan 2006 (“Guidelines”).
25 Hearsay evidence is evidence of facts not within the testifying witness’ own knowledge, Halilovi} Trial Judgement,
para. 15; Blagojevi} and Joki} Trial Judgement, para. 21. See also Prosecutor v. Zlatko Aleksovski, Case No. IT-95-
14/1-AR73, Decision on Prosecutor’s Appeal on Admissibility of Evidence, 16 Feb 1999, para. 14. Circumstantial
evidence is evidence of circumstances surrounding an event or offence from which a fact at issue may be reasonably
inferred, Blagojevi} and Joki} Trial Judgement, para. 21; Brðanin Trial Judgement, para. 35; Guidelines, para. 10.
26 Prosecutor v. Du{ko Tadi, Case No. IT-94-1-T, Decision on Defence Motion on Hearsay, 5 Aug 1996, para. 16. See
also Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-AR73, Decision on Prosecutor’s Appeal on Admissibility of
Evidence, 16 Feb 1999, para. 15, cited in the Guidelines, Annex, para. 8.
27 elebii Appeal Judgement, para. 458.
28 Kupreški et al. Appeal Judgement, para. 31. See also elebii Appeal Judgement, paras 485, 496-498.
29 Tadi} Appeal Judgement, para. 65; Aleksovski Appeal Judgement, para. 62; Kupreški et al. Appeal Judgement, para.
33.
Case No. IT-95-11-T 14 12 June 2007
statements and testimony admitted without cross-examination, the Trial Chamber recalls that
“evidence which the statement contains may lead to a conviction only if there is other evidence
which corroborates the statement”.30 Such “other evidence” may include other witnesses’
testimony, documentary evidence or video evidence.31
28. The Parties tendered into evidence a statement of agreed facts pursuant to Rule 65 ter (H).
The Trial Chamber admitted the evidence based on the agreed facts subject “to the tests of
relevance, probative value and reliability” in accordance with Rule 89 of the Rules.32
29. The Trial Chamber has also assessed and weighed the testimony of expert witnesses. When
weighing an expert’s oral and written evidence, the Trial Chamber considered factors such as “the
professional competence of the expert, the methodologies used by the expert and the credibility of
the findings made in light of these factors and other evidence accepted by the Trial Chamber.”33 In
addition, the Trial Chamber has duly taken into consideration all factors relevant to the position or
positions held by an expert witness, such as his or her status as an employee of the Prosecution or a
party-related agency, as well as his or her involvement in the respective party’s case preparations.34
The Trial Chamber also carefully examined the limitation of the expertise of each expert witness
and the relevance and reliability of his or her evidence.35
30 Prosecutor v. Stanislav Gali, Case No. IT-98-29-AR73.2, Decision on Interlocutory Appeal concerning Rule 92 bis
(C), 7 Jun 2002, fn 34.
31 Blagojevi} and Joki} Trial Judgement, para. 26; Halilovi} Trial Judgement, para. 19.
32 Halilovi} Trial Judgement, para. 20; Blagojevi} and Joki} Trial Judgement, para. 28. See also Prosecutor v. Vidoje
Blagojevi} and Dragan Jovi}, Case No. IT-02-60-T, Decision on Prosecution’s Motion for Judicial Notice of
Adjudicated Facts and Documentary Evidence, 19 Dec 2003, para. 13.
33 Vasiljevi Trial Judgement, para. 20; Blagojevi} and Joki} Trial Judgement, para. 27.
34 The Trial Chamber notes in this regard Reynaud Theunens, who is an employee of the Office of the Prosecutor of the
ICTY and who was accepted as a military expert for the Prosecution; Ivan Gruji}, who is the President of the Croatian
Government Commission for Detainees and Missing Persons and Assistant Minister of the government of the Republic
of Croatia and who was accepted as an expert in the field of exhumation for the Prosecution; Davor Strinovi}, who is a
member of the Croatian Government Commission for Detainees and Missing Persons and who was accepted as a
forensic expert for the Prosecution; Jo`ef Poje who is an employee of the Ministry of Defence of the Republic of
Slovenia and who was accepted as an artillery expert for the Prosecution; and Mladen Lon~ar who is a coordinator of
the National Programme of Psychosocial Aid to the War Victims within the government of the Republic of Croatia and
who was accepted as an expert in the field of psychiatry for the Prosecution. See also Decision on Defence’s Motion to
Exclude the Evidence of Reynaud Theunens and to Call an Independent Military Expert with Confidential Annexes A,
B, C, D and E, 28 Nov 2006, p. 5; Decision on Prosecution’s Motions for Admission of Transcripts Pursuant to Rule 92
bis (D) and of Expert Reports Pursuant to Rule 94 bis, 13 Jan 2006, paras 39-41. See further Prosecutor v. Milan
Milutinovi} et al., Oral Decision, 13 Jul 2006, T. 840-844. See also Milutinovi} et al. Decision, para. 10.
35 In this regard, the Trial Chamber is of the view that the factors to be examined in determining the admission of an
expert report, indicated in its Decision on Defence’s Submission of the Expert Report of Professor Smilja Avramov
Pursuant to Rule 94 bis, 9 November 2006, paras 5-12, are mutatis mutandis applicable when assessing the weight to be
attached to an expert’s evidence in light of the entire trial record. The Trial Chamber further observes that an expert
witness may not offer his opinion on the criminal liability of the accused, a matter which falls within the sole
jurisdiction of the Chamber at the close of the trial, Decision on Defence’s Submission on the Expert Report of Milisav
Sekuli} Pursuant Rule 94 bis, and on Prosecution’s Motion to Exclude Certain Sections of the Military Expert Report of
Milisav Sekuli}, and on Prosecution Motion to Reconsider Order of 7 November 2006, 13 Nov 2006, p. 5 with further
references.
Case No. IT-95-11-T 15 12 June 2007
30. In order to assess the authenticity of documentary evidence, the Trial Chamber considered
the source of the evidence and its chain of custody, to the extent known. The Trial Chamber did not
consider unsigned, undated or unstamped documents a priori to be void of authenticity.
Furthermore, when the Trial Chamber was satisfied of the authenticity of a particular document, it
did not automatically accept the statements contained therein to be an accurate portrayal of the
facts.36 The Trial Chamber evaluated all evidence within the context of the trial record as a whole.37
31. Between 25 and 30 September 2006, the Trial Chamber and the Parties conducted a site visit
to locations in the Republic of Croatia. The locations visited were Zagreb, Hrvatska Dubica,
Cerovljani, Bain, Slunj, Hrvatska Kostajnica, Dvor na Uni, Saborsko, Poljanak (including the
hamlet of Vukovii), Lipovaa, Vaganac, Hrvatska Korenica, [kabrnja, Nadin, Bru{ka (including
the hamlet of Marinovii), Knin, Vrpolje and Golubi. The purpose of the site visit was to obtain
first-hand observations of the geography and topography of the relevant areas, which are of direct
consequence to the counts with which Milan Marti is charged.
2. Witnesses whose evidence has been assessed with particular caution
32. The Trial Chamber considers that the testimony of the following witnesses should be
assessed with particular caution in light of the circumstances surrounding their testimony: Milan
Babi}, Ari Kerkkanen, Witness MM-003 and Witness MM-079.
33. On 15 to 17, 20 and 21 February and 2 and 3 March 2006, Milan Babi}, who was previously
convicted by this Tribunal, testified as a witness for the Prosecution. However, Milan Babi died
prior to the completion of his cross-examination.38 The Trial Chamber has assessed the evidence of
Milan Babi in light of the entire trial record, taking into account the full range of circumstances
surrounding his testimony.39 The Trial Chamber has given due consideration to the fact that the
Defence was unable to complete the cross-examination of Milan Babi}. In this regard, the Trial
Chamber recalls the practice of the Tribunal requiring corroboration of evidence which has not been
cross-examined when such evidence leads to a conviction of an accused.40 In order to remedy or
36 Guidelines, para. 5. The Trial Chamber notes in this respect that it has admitted into evidence excerpts of books, e.g.
Ex. 24, Ex. 860, Ex. 238, Ex. 793, Ex. 476, Ex. 870, Ex. 874, Ex. 937, Ex. 931, Ex. 1011. The Trial Chamber has
considered only the parts of the books admitted in light of the trial record as a whole.
37 Guidelines, para. 6.
38 The Defence filed a motion to exclude the evidence of Milan Babi} from the trial record as a result of the incomplete
cross-examination. On 9 June 2006, the Trial Chamber denied the motion. This Decision was affirmed by the Appeals
Chamber on 14 September 2006. See infra paras 537-540. As a result, the evidence of Milan Babi as a whole remains
in the record.
39 In this regard, the Trial Chamber recalls its Decision on Defence Motion to Exclude the Testimony of Witness Milan
Babi}, Together with Associated Exhibits, From Evidence, 9 Jun 2006, paras 71-76.
40 Prosecutor v. Stanislav Gali, Case No. IT-98-29-AR73.2, Decision on Interlocutory Appeal concerning Rule 92 bis,
7 Jun 2002, fn 34; Br|anin Trial Judgement, 1 Sep 2004, fn 944; Decision on Defence Motion to Exclude the
Testimony of Witness Milan Babi}, Together with Associated Exhibits, From Evidence, 9 Jun 2006, paras 73-75.
Case No. IT-95-11-T 16 12 June 2007
ameliorate any potential unfairness which might arise out of the incomplete cross-examination, the
Trial Chamber afforded the Defence an opportunity to file the following additional evidence: (i) a
list of the portions of the evidence-in-chief of Milan Babi} upon which it intended, but was unable,
to cross-examine as a result of his death, and (ii) any documents it intended to use in order to
challenge those specific portions of Milan Babi}’s evidence-in-chief.41 The Defence availed itself
of this opportunity and tendered excerpts of Milan Babi’s interviews with the Prosecution.42 In
response, and in view of the fact that the Prosecution was unable to re-examine Milan Babi, the
Prosecution tendered other portions of those same interviews.43 The Trial Chamber gave close
attention to these documents in its assessment of the parts of Milan Babi}’s testimony which were
not subject to cross-examination or re-examination.
34. Furthermore, the Trial Chamber considered the alleged inconsistencies between Milan
Babi}’s testimony and his prior testimony or statements as well as the fact that Milan Babi} testified
pursuant to a plea agreement.44 In relation to the latter, the Trial Chamber took into consideration
that some charges against Milan Babi} were dropped without prejudice, that the Appeals Chamber
had decided upon his appeal against his sentence at the time he appeared before this Trial Chamber,
and that he testified under solemn declaration.45 The Trial Chamber has also considered that Milan
Babi} pled guilty as co-perpetrator in a joint criminal enterprise which allegedly comprised, inter
alia, Milan Marti}. The Trial Chamber is therefore of the view that Milan Babi’s evidence should
be treated with caution and requires corroboration.
35. On 4, 5 and 9 May 2006, Ari Kerkkanen, who was previously employed as a Criminal
Intelligence Analyst by the Prosecution, testified before the Trial Chamber as a witness for the
Prosecution.46 His written statement was admitted in redacted form on 19 April 2006.47 The Trial
Chamber recalls that Ari Kerkkanen was one of the organisers of, and participants in, several
archive missions undertaken by the Prosecution, including to the Croatian State Archive, to collect
documents on the MUP of the SAO Krajina and of the RSK.48 The Trial Chamber observes that
both during his testimony and in his written statement on the documents collected, Ari Kerkkanen
presented views on and drew conclusions from the information contained in the documents,
41 Decision on Defence Motion to Exclude the Testimony of Witness Milan Babi}, Together with Associated Exhibits,
From Evidence, 9 Jun 2006, para. 81.
42 Defence’s Submission Pursuant to the Trial Chamber’s Order of 9 Jun 2006, 4 Oct 2006.
43 Prosecution’s Response to the Defence’s Submission Pursuant to the Trial Chamber’s Order of 9 June 2006, 16 Oct
2006.
44 Motion to Exclude the Testimony of Witness Milan Babi}, Together with Associated Exhibits, From Evidence, 2
May 2006, paras 22-31 and Annex A.
45 Decision on Defence Motion to Exclude the Testimony of Witness Milan Babi}, Together with Associated Exhibits,
From Evidence, 9 Jun 2006, para. 76; Blagojevi} and Joki} Trial Judgement, para. 24.
46 Ex. 459, p. 2; Ari Kerkkanen, 4 May 2006, T. 3997.
47 Decision on the Prosecution Motion for the Admission of a Statement of a Witness Pursuant to Rule 89(F), with
Confidential Annex A, filed confidentially on 28 Apr 2006.
Case No. IT-95-11-T 17 12 June 2007
although he neither possesses expertise in this area nor personal knowledge of the information.49
Accordingly, the Trial Chamber has attached no weight whatsoever to such views, conclusions and
analyses of Ari Kerkkanen.
36. Witness MM-003 testified from 8 to 10 March 2006. In its Final Trial Brief, the Prosecution
accepted that the evidence of Witness MM-003 should be examined “with care” since “he sought
and received assistance from the OTP in order to remain in the country where he is now living”.50
The Defence submitted that this would be a factor negating the credibility of his testimony.51 On 9
April 2007, the Prosecution sent a letter to the Defence disclosing details of its assistance provided
to Witness MM-003 in his asylum case.52
37. Witness MM-079 testified on 31 March, 3 and 4 April 2006. In its Final Trial Brief, the
Prosecution acknowledged that the evidence of Witness MM-079 should be “scrutinized with care”
since “he said that he hoped to receive the assistance of the OTP to remain in the country where he
is relocated.”53 Witness MM-079 testified that after his lawyer had suggested that he contact the
Tribunal to seek assistance with his asylum, he was interviewed by the Prosecution, and that he was
subsequently informed that the Prosecution had written a letter to the authorities of the state where
he currently lives to ask that he be allowed to stay there until he finishes testifying at the Tribunal.54
The Trial Chamber notes that the Defence did not raise objections as to the credibility of this
witness.
38. The Trial Chamber notes that both Witness MM-003 and Witness MM-079 sought
assistance from the Prosecution, which also provided such assistance to both witnesses. The Trial
Chamber therefore considers that there is significant doubt as to the credibility of both witnesses
and has consequently given weight only to the parts of their respective evidence which are
corroborated by other evidence.
48 Ex. 459, pp 2-4.
49 Prosecution’s Reply to Defense Response to Prosecution’s Motion for Admission of Statement of Witness MM-014
Pursuant to Rule 89 (F), filed confidentially on 19 Apr 2006, para. 6, where the Prosecution acknowledges that Ari
Kerkkanen lacks expertise.
50 Prosecution Final Trial Brief, para. 44.
51 Witness MM-003, 10 Mar 2006, T. 2175-2188; Defence Closing Argument, 11 Jan 2007, T. 11330-11331.
52 Letter from Alex Whiting to Predrag Milovan~evi}, dated 9 April 2007. The Trial Chamber was copied on this letter.
53 Prosecution Final Trial Brief, para. 85; Witness MM-079, 31 Mar 2006, T. 3025-3028.
54 Witness MM-079, 31 Mar 2006, T. 3025-3026.
Case No. IT-95-11-T 18 12 June 2007
II. APPLICABLE LAW
A. General requirements of Article 3 of the Statute
1. Generally
39. Milan Marti is charged with the following crimes as violations of the laws and customs of
war punishable under Article 3 of the Statute: murder, torture and cruel treatment, based on
Article 3 common to the four Geneva Conventions of 12 August 1949 (“Common Article 3”), and
attacks on civilians based on Article 51(2) of Additional Protocol I and Article 13(2) of Additional
Protocol II.55 In addition, Milan Marti is charged with wanton destruction of villages, or
devastation not justified by military necessity, destruction or wilful damage done to institutions
dedicated to education or religion, and plunder of public or private property, punishable under
Article 3 (b), (d) and (e), respectively.56 Article 3 of the Statute provides in its relevant parts:
The International Tribunal shall have the power to prosecute persons violating the laws or customs
of war. Such violations shall include, but not be limited to: …
(b) wanton destruction of cities, towns or villages, or devastation not justified by military
necessity; …
(d) seizure of, destruction or wilful damage done to institutions dedicated to religion, charity
and education, the arts and sciences, historic monuments and works of art and science;
(e) plunder of public or private property.
40. Article 3 of the Statute has been defined in the jurisprudence of the Tribunal as a general
clause covering all violations of international humanitarian law not covered by Articles 2, 4 or 5 of
the Statute.57 The application of Article 3 of the Statute requires a determination that a state of
armed conflict existed at the time the crime was committed and that the alleged crime was “closely
55 Counts 4 and 16 (murder), Count 8 (torture), Counts 9 and 18 (cruel treatment), Count 19 (attacks on civilians) of the
Indictment. Common Article 3, in its relevant parts, reads:
In case of armed conflict not of an international character occurring in the territory of one of the
High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the
following provisions;
(1) Persons taking no active part in the hostilities, including members of armed forces who have
laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other
cause, shall in all circumstances be treated humanely, without any adverse distinction founded on
race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end the following acts are and shall remain prohibited at any time and in any place
whatsoever with respect to the abovementioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and
torture; …
56 Counts 12-14 of the Indictment.
57 Tadi} Jurisdiction Decision, para. 89, re-affirmed in ^elebi}i Appeal Judgement, paras 133-136.
Case No. IT-95-11-T 19 12 June 2007
related” to the armed conflict.58 Furthermore, four conditions, known as the Tadi} conditions, must
be fulfilled for a crime to fall within the jurisdiction of the Tribunal.59
2. Existence of an armed conflict and the nexus requirement
41. An armed conflict exists “whenever there is a resort to armed force between States or
protracted armed violence between governmental authorities and organised groups or between such
groups within a State.”60 Until a general conclusion of peace or a peaceful settlement is reached,
international humanitarian law continues to apply “in the whole territory of the warring States or, in
the case of internal conflicts, the whole territory under the control of a party, whether or not actual
combat takes place there”.61
42. Common Article 3 requires the warring parties to abide by certain fundamental
humanitarian standards by ensuring “the application of the rules of humanity which are recognized
as essential by civilized nations” and as such the provisions of Common Article 3 have general
applicability.62 When an accused is charged with violation of Article 3 of the Statute, it is
immaterial whether the armed conflict was international or non-international in nature.63
43. When the alleged crime did not occur at a time and place in which fighting was actually
taking place, “it would be sufficient … that the alleged crimes were closely related to hostilities
occurring in other parts of the territories controlled by the parties to the conflict.”64 The crime “need
not have been planned or supported by some form of policy”.65 The armed conflict “need not have
been causal to the commission of the crime, but the existence of an armed conflict must, at a
minimum, have played a substantial part in the perpetrator’s ability to commit it, his decision to
commit it, the manner in which it was committed or the purpose for which it was committed.”66
58 Tadi} Jurisdiction Decision, paras 67-70.
59 Tadi} Jurisdiction Decision, para. 94. See also Kunarac et al. Appeal Judgement, para. 66.
60 Tadi} Jurisdiction Decision, para. 70. The term “protracted” is significant in excluding mere cases of civil unrest or
single acts of terrorism in cases of non-international conflicts, see Kordi} and ^erkez Appeal Judgement, para. 341.
61 Tadi} Jurisdiction Decision, para. 70. See also Kunarac et al. Appeal Judgement, paras 57, 64. In para. 64, the
Appeals Chamber held that: “the Prosecutor did not have to prove that there was an armed conflict in each and every
square inch of the general area. The state of armed conflict is not limited to the areas of actual military combat but
exists across the entire territory under the control of the warring parties.”
62 ICRC Commentary on Geneva Convention IV, p. 34.
63 Tadi} Jurisdiction Decision, para. 137; ^elebi}i Appeal Judgement, paras 140, 147-150, 420, where the Appeals
Chamber held that the provisions of Common Article 3 are applicable to both international and non-international
conflicts. See also Gali Appeal Judgement, para. 120.
64 Kunarac et al. Appeal Judgement, para. 57. The Trial Chamber notes that the term “hostilities” is not synonymous
with the term “armed conflict.” An armed conflict may continue to exist after the hostilities in an area have ceased. The
state of armed conflict ends when a peace agreement has been achieved or – in case of a non-international conflict – if a
peaceful settlement has been reached, see Tadi} Jurisdiction Decision, para. 70.
65 Kunarac et al. Appeal Judgement, para. 58.
66 Kunarac et al. Appeal Judgement, para. 58.
Case No. IT-95-11-T 20 12 June 2007
However, “it is essential, … that a Trial Chamber establish the existence of a geographical and
temporal linkage between the crimes ascribed to the accused and the armed conflict.”67
3. The Tadi conditions
44. The four Tadi conditions referred to above are: (i) the violation must constitute an
infringement of a rule of international humanitarian law; (ii) the rule must be customary in nature,
or, if it belongs to treaty law, the required conditions must be met;68 (iii) the violation must be
“serious”, that is to say, it must constitute a breach of a rule protecting important values, and the
breach must involve grave consequences for the victim; and (iv) the violation of the rule must
entail, under customary or conventional law, the individual criminal responsibility of the person
breaching the rule.69
45. With regard to murder, torture and cruel treatment, the Appeals Chamber has held that
Common Article 3 “is indeed regarded as being part of customary international law, and serious
violations thereof would at once satisfy the four requirements”.70 In relation to attacks on civilians,
the Appeals Chamber in Strugar held that “the principles” contained in Article 51(2) of Additional
Protocol I and Article 13(2) of Additional Protocol II have attained the status of customary
international law.71 Moreover, it is clear that attacks against civilians undoubtedly breach rules
protecting important values and involves grave consequences for the victim.72 The Appeals
Chamber in Strugar also found that “customary international law establishes that a violation of
these principles entails individual criminal responsibility.”73
46. Concerning the crimes of wanton destruction of villages, or devastation, and destruction or
wilful damage done to institutions dedicated to education or religion, it is established in the
jurisprudence of the Tribunal that the crimes meet the four Tadi conditions.74 Concerning the
67 Staki} Appeal Judgement, para. 342.
68 These conditions are that the treaty (i) was unquestionably binding on the parties at the time of the alleged offence;
and (ii) was not in conflict with or derogated from peremptory norms of international law, as are most customary rules
of international humanitarian law, Tadi} Jurisdiction Decision, para. 143.
69 Tadi} Jurisdiction Decision, para. 94. See also Kunarac et al. Appeal Judgement, para. 66.
70 Kunarac et al. Appeal Judgement, para. 68, referring to Tadi} Jurisdiction Decision, paras 98-34 and ^elebi}i Appeal
Judgement, para. 125.
71 Prosecutor v. Pavle Strugar et al., Case No. IT-01-42-AR72, Decision on Interlocutory Appeal, 22 Nov 2002, 22
Nov 2002, para. 9; Blaški Appeal Judgement, paras 157-158.
72 Gali Trial Judgement, paras 27, 45; Strugar Trial Judgement, para. 221.
73 Prosecutor v. Pavle Strugar et al., Case No. IT-01-42-AR72, Decision on Interlocutory Appeal, 22 Nov 2002, 22
Nov 2002, para. 10.
74 Regarding wanton destruction of villages, or devastation not justified by military necessity pursuant to Article 3(b) of
the Statute, see Hadžihasanovi and Kubura Rule 98 bis Appeal Decision, para. 30 (see also paras 28-29); Br|anin
Trial Judgement, para. 157; Strugar Trial Judgement, para. 231. Regarding destruction or wilful damage done to
institutions dedicated to education or religion pursuant to Article 3(d), see Hadžihasanovi and Kubura Rule 98 bis
Appeal Decision, paras 44-48, with further references; Hadžihasanovi and Kubura Trial Judgement, para. 63; Br|anin
Trial Judgement, para. 157; Strugar Trial Judgement, para. 232.
Case No. IT-95-11-T 21 12 June 2007
crime of plunder, it is well-established that the first, second and fourth conditions are met.75 As
regards the third condition, the Trial Chamber finds that the jurisprudence establishes that the crime
is a breach of a rule protecting important values,76 and that whether the breach involves grave
consequences for the victim has to be decided on a case-by-case basis.77
4. “Persons taking no active part in the hostilities”
47. In relation to charges based on Common Article 3, including in this case, the charges of
murder, torture and cruel treatment, the Prosecution must prove that the victim was taking no active
part in the hostilities when the crime was committed.78 The perpetrator of the crime must have
known or should have been aware that the victim was taking no active part in the hostilities.79 It is
the specific situation of the victim at the moment the crime was committed that must be taken into
account in determining the victim’s protection under Common Article 3.80
B. General requirements of Article 5 of the Statute
1. Elements
48. Milan Marti is charged with the following crimes against humanity punishable under
Article 5 of the Statute: murder, extermination, deportation, imprisonment, torture, persecution, and
other inhumane acts (including forcible transfer). Article 5 of the Statute provides:
The International Tribunal shall have the power to prosecute persons responsible for the following
crimes when committed in armed conflict, whether international or internal in character, and
directed against any civilian population:
(a) murder;
(b) extermination;
(c) enslavement;
(d) deportation;
(e) imprisonment;
(f) torture;
(g) rape;
(h) persecutions on political, racial and religious grounds;
(i) other inhumane acts.
In order to constitute a crime against humanity under Article 5 of the Statute, the acts of the accused
must have been carried out during armed conflict, whether international or non-international in
75 Hadžihasanovi and Kubura Rule 98 bis Appeal Decision, paras 37-38, with further references.
76 Kordi} and ^erkez Appeal Judgement, para. 81.
77 Kordi} and ^erkez Appeal Judgement, paras 82-83.
78 ^elebii Appeal Judgement, para. 420; Tadi} Trial Judgement, para. 615.
79 Halilovi} Trial Judgement, para. 36; Kraji{nik Trial Judgement, para. 847.
80 Tadi} Trial Judgement, paras 615-616; Halilovi} Trial Judgement, paras 33-34. See also ICRC Commentary on
Geneva Convention III, p. 39: “a man who has surrendered individually is entitled to the same humane treatment as he
would receive if the whole army to which he belongs had capitulated. The important thing is that the man in question
will be taking no further part in the fighting.”
Case No. IT-95-11-T 22 12 June 2007
character.81 This is a jurisdictional requirement which is satisfied by proof that there was an armed
conflict and that objectively the acts of the accused were linked geographically as well as
temporally with the armed conflict.82
49. The acts of the accused must have formed part of a widespread or systematic attack directed
against any civilian population.83 Five elements have been set out in the jurisprudence for the
establishment of this requirement:
(1) ‘Attack’ may be defined as a course of conduct involving the commission of acts of violence.84
It is not limited to the use of armed force but may also encompass any mistreatment of the civilian
population.85 ‘Attack’ is a concept different from that of “armed conflict”. The attack may precede,
outlast or continue during the armed conflict and need not be part of it.86
(2) The attack must be directed against any civilian population, that is, it must be established that
the civilian population was the primary object of the attack.87 It is not required that the entire
population be subjected to the attack, however the Chamber must be satisfied that the attack was in
fact directed against a civilian “population”, rather than against a limited and randomly selected
number of individuals.88
(3) The attack must be widespread or systematic. ‘Widespread’ refers to the large-scale nature of
the attack and the number of targeted persons, while the phrase ‘systematic’ refers to the organised
81 Tadi} Jurisdiction Decision, paras 70, 142; Kunarac et al. Appeal Judgement, para. 86. See infra section II A.
82 Kunarac et al. Appeal Judgement, paras 83-84, referring to Tadi Appeal Judgement, paras 249, 251.
83 Blaški Appeal Judgement, para. 98 (with further references).
84 Kunarac et al. Trial Judgement, para. 415, affirmed by Kunarac et al. Appeal Judgement, para. 89.
85 Kunarac et al. Appeal Judgement, para. 86.
86 Tadi} Appeal Judgement, para. 251; Kunarac et al. Appeal Judgement, para. 86.
87 Kunarac et al. Appeal Judgement, para. 91. See also Blaški Appeal Judgement, paras 110-115, where the Appeals
Chamber discussed in detail the scope of the term “civilian population”.
88 Kunarac et al. Appeal Judgement, para. 90. The Appeals Chamber also held (para. 91) that:
in order to determine whether the attack may be said to have been so directed, the Trial Chamber
will consider, inter alia, the means and method used in the course of the attack, the status of the
victims, their number, the discriminatory nature of the attack, the nature of the crimes committed
in its course, the resistance to the assailants at the time and the extent to which the attacking force
may be said to have complied or attempted to comply with the precautionary requirements of the
laws of war. To the extent that the alleged crimes against humanity were committed in the course
of an armed conflict, the laws of war provide a benchmark against which the Chamber may assess
the nature of the attack and the legality of the acts committed in its midst.
Case No. IT-95-11-T 23 12 June 2007
nature of the acts of violence and the improbability of their random occurrence.89 It is settled
jurisprudence that the existence of a plan need not be proven.90
(4) The acts of the perpetrator must objectively form part of the attack on the civilian population.
However, it is not required that the acts be committed in the midst of the attack. A crime which is
committed before or after the main attack or away from it must be sufficiently connected with the
attack and not be an isolated act.91
(5) The perpetrator must have known of the attack on the civilian population and that his or her acts
formed part of the attack, or at least have taken the risk that his or her acts were part of the attack.92
However, the perpetrator need not know of the details of the attack.93 It is the attack, not the acts of
the accused, which must be directed against the target population.94
2. Applicability of Article 5 to non-civilians
50. As a preliminary point, the Trial Chamber notes that it is well established that the term
“civilian population” in the general requirements of Article 5 should be given a broad definition and
that the presence of combatants within a civilian population does not necessarily alter its
characterisation as such.95
51. The Trial Chamber now turns to the question of the required status of the victims under
Article 5. As held by the Appeals Chamber in Bla{ki, “the status of the victim as a civilian” is one
of the elements which characterises a crime against humanity.96 In defining the term “civilian”, the
Appeals Chamber in Bla{ki relied upon the provisions of Article 50 of Additional Protocol I,
89 Kordi} and ^erkez Appeal Judgement, para. 94 (with further references). Relevant factors include “the consequences
of the attack upon the targeted population, the number of victims, the nature of the acts, the possible participation of
officials or authorities, and any identifiable patterns of crimes”, Kunarac et al. Appeal Judgement, para. 95.
90 Bla{ki} Appeal Judgement, para. 120 (with further references), also holding that the existence of a plan “may be
evidentially relevant in proving that an attack was directed against a civilian population and that it was widespread or
systematic”, ibid.
91 Kunarac et al. Appeal Judgement, paras 85, 99-101 (with further references). A crime would be regarded as an
“isolated act” when it is so far removed from that attack that, having considered the context and circumstances in which
it was committed, it cannot reasonably be said to have been part of the attack, ibid.
92 Kunarac et al. Appeal Judgement, paras 99, 102, also holding (para. 103) that “the motives of the accused for taking
part in the attack are irrelevant and a crime against humanity may be committed for purely personal reasons.”
93 Kunarac et al. Appeal Judgement, para. 102.
94 Kordi} and ^erkez Appeal Judgement, para. 99; Kunarac et al. Appeal Judgement, para. 103.
95 Article 50 of Additional Protocol I provides that the “civilian population comprises all persons who are civilians” and
that 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.” See also Bla{ki Appeal Judgement, which held that “thus, in
order to determine whether the presence of soldiers within a civilian population deprives the population of its civilian
character, the number of soldiers, as well as whether they are on leave, must be examined,” para. 115.
96 Bla{ki Appeal Judgement, para. 107.
Case No. IT-95-11-T 24 12 June 2007
which it found “may largely be viewed as reflecting customary law.”97 Article 50 of Additional
Protocol I defines civilians as follows:
1. A civilian is any person who does not belong to one of the categories of persons referred to in
Article 4 A (1), (2), (3) and (6) of the Third 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.98
In light of this finding of the Appeals Chamber, the Trial Chamber finds no reason why Article 50
of Additional Protocol I should not also be applied when determining to the status of victims under
Article 5 of the Statute.
52. The Appeals Chamber in Blaški further held that, “read together, Article 50 of Additional
Protocol I and Article 4A of Geneva Convention III establish that members of the armed forces, and
members of militias or volunteer corps forming part of such armed forces, cannot claim civilian
status”.99 The Bla{ki Appeals Chamber continued that neither may “members of organized
resistance groups” claim civilian status, provided that they are commanded by a person responsible
97 Bla{ki Appeal Judgement, para. 110.
98 Article 4 A (1), (2), (3) and (6), of Geneva Convention III provides:
A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the
following categories, who have fallen into the power of the enemy:
1. Members of the armed forces of a Party to the conflict as well as members of militias or
volunteer corps forming part of such armed forces.
2. Members of other militias and members of other volunteer corps, including those of organized
resistance movements, belonging to a Party to the conflict and operating in or outside their own
territory, even if this territory is occupied, provided that such militias or volunteer corps, including
such organized resistance movements, fulfil the following conditions:
(a) That of being commanded by a person responsible for his subordinates;
(b) That of having a fixed distinctive sign recognizable at a distance;
(c) That of carrying arms openly;
(d) That of conducting their operations in accordance with the laws and customs of war.
3. Members of regular armed forces who profess allegiance to a government or an authority not
recognized by the Detaining Power. …
6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take
up arms to resist the invading forces, without having had time to form themselves into regular
armed units, provided they carry arms openly and respect the laws and customs of war.“
Article 43 of Additional Protocol I provides:
1. The armed forces of a Party to a conflict consist of all organized armed forces, groups and units
which are under a command responsible to that Party for the conduct of its subordinates, even if
that Party is represented by a government or an authority not recognized by an adverse Party. Such
armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce
compliance with the rules of international law applicable in armed conflict.
2. Members of the armed forces of a Party to a conflict (other than medical personnel and
chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have
the right to participate directly in hostilities.
3. Whenever a Party to a conflict incorporates a paramilitary or armed law enforcement agency
into its armed forces it shall so notify the other Parties to the conflict.
Case No. IT-95-11-T 25 12 June 2007
for his subordinates, that they have a fixed distinctive sign recognisable at a distance, that they carry
arms openly, and that they conduct their operations in accordance with the laws and customs of
war.100 In determining the status of the victim at the time the crimes were committed, the Appeals
Chamber held that:
the specific situation of the victim at the time the crimes are committed may not be determinative
of his civilian or non-civilian status. If he is indeed a member of an armed organization, the fact
that he is not armed or in combat at the time of the commission of crimes, does not accord him
civilian status.101
53. The Appeals Chamber in Kordi and erkez appears to have taken a different approach to
that taken by the Appeals Chamber in Bla{ki, by expanding the concept of “civilian”. The Appeals
Chamber in Kordi and erkez repeated the language of the Appeals Chamber in Bla{ki in relying
upon Article 50 of Additional Protocol I as part of customary international law.102 It also followed
the Appeals Chamber in Bla{ki, finding that “during an armed conflict, until a soldier is
demobilized, he is considered a combatant whether or not he is in combat, or for the time being
armed.”103 However, the Kordi and erkez Appeals Chamber continued, concerning evidence
underlying, inter alia, Count 7, murder under Article 5 of the Statute:
read together, the above excerpts … constitute evidence that numerous persons were killed
during their arrest, simply because they were Muslims, and ABiH soldiers were killed after their
arrest, after being placed hors de combat. These persons, wilfully killed by Croat forces, were
without doubt … “civilians” in the sense of Article 5 of the Statute.104
Nevertheless, the Appeals Chamber appears to have followed the reasoning of the Appeals
Chamber in Bla{ki in overturning the finding of the Trial Chamber in relation to the killing of a
man and a woman shot by the HVO in their apartment. It held that “as TO members, the two
victims are to be considered as ‘combatants’ and cannot claim the status of civilians.”105
54. The Appeals Chamber in Gali supported the view of the Bla{ki Appeal Chamber that a
person hors de combat is not a civilian in the context of international humanitarian law:
Persons hors de combat are certainly protected in armed conflicts through Common Article 3 of
the Geneva Conventions. This reflects a principle of customary international law. Even hors de
combat, however, they would still be members of the armed forces of a party to the conflict and
therefore fall under the category of persons referred to in Article 4(A)(1) of the Third Geneva
99 Bla{ki Appeal Judgement, para. 113.
100 Bla{ki Appeal Judgement, para. 113, referring to Article 4 A of Geneva Convention III.
101 Bla{ki Appeal Judgement, para. 114.
102 Kordi} and ^erkez Appeal Judgement, para. 97.
103 Kordi} and ^erkez Appeal Judgement, para. 421. See also para. 50.
104 Kordi} and ^erkez Appeal Judgement, paras 421-422. The Appeals Chamber thus upheld the Trial Chamber’s
finding of murder under Article 5 and wilful killing under Article 2.
105 Kordi} and ^erkez Appeal Judgement, para. 458. The Appeals Chamber also found that “members of the armed
forces resting in their homes in the area of the conflict, as well as members of the TO residing in their homes, remain
combatants whether or not they are in combat, or for the time being armed,” Kordi} and ^erkez Appeal Judgement,
para. 51. The Appeals Chamber also only applied the crime of imprisonment to those who were proved at trial to be
civilians, ibid. paras 591-640.
Case No. IT-95-11-T 26 12 June 2007
Convention; as such, they are not civilians in the context of Article 50, paragraph 1, of Additional
Protocol I. Common Article 3 of the Geneva Conventions supports this conclusion in referring to
“persons taking no active part in the hostilities, including members of armed forces who have laid
down their arms and those placed hors de combat by sickness, wounds, detention, or any other
cause” (emphasis added).106
55. The Trial Chamber agrees with the findings of the Appeals Chamber in Bla{ki and Gali
that the term civilian is one which is narrowly defined. The Trial Chamber does not, therefore,
follow the logic of the Appeals Chamber in Kordi and erkez, which appeared to expand the term
“civilian” to cover persons hors de combat. In the view of the Trial Chamber, such an interpretation
is not in keeping with the definition of civilians as set out in Article 50 which the Appeals Chamber
found “may be largely viewed as reflecting customary international law”.107 As held by the Appeals
Chamber in Bla{ki and Gali, the fact that a person, who is not a civilian according to Article 4A
of Geneva Convention III and Article 43 Additional Protocol I, is not armed or in combat, or is hors
de combat at the time of the commission of crime, does not render them civilian for the purposes of
Article 5 of the Statute.
56. That Article 5 of the Statute is applicable to civilians is in keeping with the fundamental
principle of the distinction between civilians and combatants, which permeates the laws of war and
international humanitarian law. In this respect, the Trial Chamber recalls the ICRC Commentary to
Article 50 of Additional Protocol I, which provides that:
the principle of the protection of the civilian population is inseparable from the principle of the
distinction which should be made between military and civilian persons. In view of the latter
principle, it is essential to have a clear definition of each of these categories.108
Article 5 of the Statute defines crimes against humanity more narrowly than required under
customary international law by including a requirement of a nexus between the crime and the armed
conflict.109 This requirement in Article 5 necessarily links crimes against humanity to an armed
conflict in which distinction must be made between combatants and non-combatants. Therefore, to
allow for the term “civilians” to include all persons who were not actively participating in combat,
106 Gali Appeal Judgement, fn 437.
107 Bla{ki Appeal Judgement, para. 110. The Trial Chamber recalls that the Appeals Chamber in Kordi} and ^erkez
relied upon the Appeals Chamber in Bla{ki: “The Appeals Chamber considers that Article 50 of Additional Protocol I
contains a definition of civilians and civilian populations, and the provisions in this article may largely be viewed as
reflecting customary law. As a result, they are relevant to the consideration at issue under Article 5 of the Statute,
concerning crimes against humanity” (footnotes omitted), Kordi} and ^erkez Appeal Judgement, para. 97.
108 ICRC Commentary on Additional Protocols, para. 1911.
109 Tadi Jurisdiction Decision, paras 140-141, wherein the Appeals Chamber stated (ibid. para. 141) that:
It is by now a settled rule of customary international law that crimes against humanity do not
require a connection to international armed conflict. Indeed, as the Prosecutor points out,
customary international law may not require a connection between crimes against humanity and
any conflict at all. Thus, by requiring that crimes against humanity be committed in either internal
or international armed conflict, the Security Council may have defined the crime in Article 5 more
narrowly than necessary under customary international law. There is no question, however, that
the definition of crimes against humanity adopted by the Security Council in Article 5 comports
with the principle of nullum crimen sine lege.
Case No. IT-95-11-T 27 12 June 2007
including those who were hors de combat, at the time of the crime would impermissibly blur this
necessary distinction.
C. Murder
57. Milan Marti is charged with murder, both as a violation of the laws or customs of war
pursuant to Article 3 of the Statute (Counts 4 and 16) and as a crime against humanity pursuant to
Article 5(a) of the Statute (Counts 3 and 15).
58. The elements of the crime of murder under Article 3 and under Article 5 are identical, with
the exception that the respective general requirements for the application of these provisions must
be met.110 The common elements are the following:
1. the death of a victim;
2. the death was the result of an act or omission of the accused or of one or more persons for
whom the accused is criminally responsible;
3. the act or omission was committed with intent to kill, or in the knowledge that death was a
probable consequence of the act or omission.111
59. For the proof of the death of the victim, there is no requirement that the body be recovered.
Rather, the death may be established by circumstantial evidence, provided it is the only reasonable
inference available from the evidence.112
60. The mens rea of murder is the intent to kill, including indirect intent, that is the knowledge
that the death of the victim was a probable consequence of the act or omission.113 This Trial
Chamber does not consider it to be sufficient that the perpetrator knew that death would be a
possible consequence of his act or omission.114 In connection with the identity of victims, it is not
required for the perpetrator to have intended to target a certain individual; indiscriminate intent to
kill whoever is fatally injured as a result of his action is sufficient.
110 Kordi} and erkez Trial Judgement, paras 229, 233, 236; Br|anin Trial Judgement, para. 380; Strugar Trial
Judgement, para. 236; Ori} Trial Judgement, para. 345.
111 Kvo~ka et al. Appeal Judgement, para. 261.
112 Kvo~ka et al. Appeal Judgement, para. 260; Br|anin Trial Judgement, paras 383-385; Krnojelac Trial Judgement,
paras 326-327; Tadi} Trial Judgement, para. 240. Relevant factors to be considered include, but are not limited to, proof
of incidents of mistreatment directed against the victim, patterns of mistreatment and disappearances of other victims,
the coincident or near-coincident time of death of other victims, the fact that the victims were present in an area where
an armed attack was carried out, when, where and the circumstances in which the victim was last seen, behaviour of
soldiers in the vicinity, as well as towards other civilians, at the relevant time, and lack of contact by the victim with
others whom he/she would have been expected to contact, such as his/her family, Halilovi} Trial Judgement, para. 37;
Krnojelac Trial Judgement, para. 327.
113 Strugar Trial Judgement, paras 235-236; Limaj et al. Trial Judgement, para. 241. See also Ori} Trial Judgement,
para. 348. Neither negligence nor gross negligence on the part of the perpetrator is sufficient to satisfy the mental
element, Staki} Trial Judgement, para. 587; Br|anin Trial Judgement, para. 386; Ori} Trial Judgement, para. 348.
114 Strugar Trial Judgement, para. 236.
Case No. IT-95-11-T 28 12 June 2007
D. Extermination
61. Milan Marti is charged with extermination, a crime against humanity under Article 5(b) of
the Statute (Count 2).
62. Extermination is the act of killing on a large scale.115 The crime of extermination subsumes
the elements of murder.116 The actus reus consists of any act or omission, which contributes
directly or indirectly to the killing of a large number of individuals.117 The actus reus also includes
subjecting a large number of people “to conditions of living that would inevitably lead to death”.118
63. The requirement that killings occurred on a large scale does not suggest a numerical
minimum.119 An assessment of whether this requirement has been met must be made on the basis of
a case-by-case analysis of all relevant factors.120 Extermination may be established “on an
accumulation of separate and unrelated incidents, meaning on an aggregated basis”, where a large
number of killings did not occur during a single incident in a concentrated place over a short
period.121
64. It is not required that the perpetrator targeted the victims on national, ethnical, racial or
religious grounds.122 Neither is a “vast scheme of collective murder”, nor knowledge of such a
scheme, an element of extermination.123 Moreover, it is not necessary that the victims of
extermination be precisely identified by name; it is sufficient for it to be proven that killings
occurred on a large scale.124
65. The mens rea element of extermination requires that the act or omission was committed
with the intent to kill persons on a large scale or in the knowledge that the deaths of a large number
of people were a probable consequence of the act or omission.125 In other words, the mens rea
encompasses direct intent and indirect intent.126
115 Ntakirutimana Appeal Judgement, para. 516 and fn 880; Staki} Appeal Judgement, para. 259.
116 Kraji{nik Trial Judgement, para. 716. As regards the elements of murder, see infra section II C.
117 Vasiljevi Trial Judgement, para. 229; Br|anin Trial Judgement, para. 389. See also Rutaganda Trial Judgement,
para. 83; Musema Trial Judgement, para. 219.
118 Staki} Appeal Judgement, para. 259; Ntakirutimana Appeal Judgement, para. 522.
119 Staki} Appeal Judgement, para. 260; Ntakirutimana Appeal Judgement, para. 516.
120 Staki Trial Judgement, para. 640; Br|anin Trial Judgement, para. 391; Blagojevi} and Joki} Trial Judgement, para.
573. The relevant factors include “the time and place of the killings, the selection of the victims, and the manner in
which they were targeted”, Kraji{nik Trial Judgement, para. 716. See also Nahimana et al. Trial Judgement, para. 1061.
121 Br|anin Trial Judgement, para. 391. See also Staki Trial Judgement, para. 640.
122 Krsti} Trial Judgement, paras 499-500; Staki Trial Judgement, para. 639.
123 Staki Appeal Judgement, paras 258-259. See also Krsti} Appeal Judgement, para. 225.
124 Ntakirutimana Appeal Judgement, para. 521, endorsed by Staki Appeal Judgement, fn 552.
125 Staki} Appeal Judgement, para. 259; Ntakirutimana Appeal Judgement, para. 522.
126 Krsti Trial Judgement, para. 495; Staki Trial Judgement, paras 587, 641-642; Br|anin Trial Judgement, para. 395.
Case No. IT-95-11-T 29 12 June 2007
E. Attacks on civilians
66. Milan Marti is charged with attacks on civilians, a violation of the laws or customs of war
pursuant to Article 3 of the Statute (Count 19).
67. The crime of attacks on civilians is based upon Article 51(2) of Additional Protocol I and
Article 13(2) of Additional Protocol II, both of which provide, in their relevant parts, that “the
civilian population as such, as well as individual civilians, shall not be made the object of
attack.”127
68. Article 49 of Additional Protocol I defines the term “attack” as “acts of violence against the
adversary, whether in offence or in defence”.128 In relation to attacks on civilians, the Appeals
Chamber in Blaški held that there is an absolute prohibition in customary international law against
the targeting of civilians.129 In Kordi} and ^erkez, the Appeals Chamber held that “the prohibition
against attacking civilians and civilian objects may not be derogated from because of military
necessity”.130 According to Article 52(2) of Additional Protocol I only military objectives may be
lawfully attacked, that is “those objects which by their nature, location, purpose or use make an
effective contribution to military action and whose total or partial destruction, capture or
neutralization, in the circumstances ruling at the time, offers a definite military advantage”.131
69. The prohibition against targeting the civilian population does not exclude the possibility of
legitimate civilian casualties incidental to an attack aimed at military targets.132 However, such
casualties must not be disproportionate to the concrete and direct military advantage anticipated
before the attack.133 In particular, indiscriminate attacks, that is attacks which affect civilians or
civilian objects and military objects without distinction, may also be qualified as direct attacks on
127 The Indictment provides: “Count 19: Attacks on civilians, a Violation of the Laws or Customs of War, as recognised
by Article 51(2) of Additional Protocol I and Article 13(2) of Additional Protocol II to the Geneva Conventions of
1949, punishable under Articles 3 and 7(1) and 7(3) of the Statute of the Tribunal”.
128 This definition of attack has been endorsed in Kordi} and ^erkez Appeal Judgement, para. 47.
129 Bla{ki} Appeal Judgement, para. 109; Gali} Appeal Judgement, para. 190.
130 Kordi} and ^erkez Appeal Judgement, para. 54 (as revised by Corrigendum of 26 January 2005).
131 Article 52(2) of Additional Protocol I. See also Kordi and ^erkez Appeal Judgement, para. 53. In this context, see
the Trial Chamber’s discussion on reprisals, infra section IV B 4 (c).
132 Gali} Appeal Judgement, para. 190.
133 Gali} Appeal Judgement, para. 190. The Appeals Chamber also endorsed the Trial Chamber’s finding in Gali}
according to which the parties to a conflict have an obligation “to remove civilians, to the maximum extent feasible
from the vicinity of military objectives and to avoid locating military objectives within or near densely populated
areas”. However, “the failure of a party to abide by this obligation does not relieve the attacking side of its duty to abide
by the principles of distinction and proportionality when launching an attack”, Gali} Appeal Judgement, para. 194.
Case No. IT-95-11-T 30 12 June 2007
civilians.134 In this regard, a direct attack against civilians can be inferred from the indiscriminate
character of the weapon used.135
70. It is an element of the crime that the attacks resulted in death or serious bodily injury within
the civilian population at the time of such attacks.136
71. The Trial Chamber recalls that the Appeals Chamber has considered that “Article 50 of
Additional Protocol I contains a definition of civilians and civilian populations”, which may largely
be viewed as reflecting customary law.137
72. The mens rea required for attacks against civilians is direct and indirect intent.138
F. Torture
73. Milan Marti is charged with torture as a crime against humanity under Article 5(f) of the
Statute (Count 6), and as a violation of the laws or customs of war under Article 3 of the Statute
(Count 8), respectively.
74. The torture of persons not taking an active part in hostilities is expressly prohibited by the
Geneva Conventions and the Additional Protocols, both in international and non-international
134 Gali} Appeal Judgement, para. 132, referring to Gali} Trial Judgement, para. 57. See also ICJ Advisory Opinion:
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, I.C.J. Reports 1996, para. 78.
135 Gali} Appeal Judgement, para. 132. The Appeals Chamber upheld the Trial Chamber’s finding in Gali} which
relied, inter alia, on the Marti} Rule 61 Decision, 8 Mar 1996, paras 23-31, according to which the Trial Chamber
regarded the use of a cluster bomb warhead as evidence of Milan Marti’s intent to deliberately attack the civilian
population. The Appeals Chamber noted also that the Trial Chamber is, in principle, entitled to determine on a case-bycase
basis that the indiscriminate character of an attack can assist it in determining whether the attack was directed
against the civilian population. Among the elements that the Trial Chamber may take into account in its determination
as to whether the attack was directed against civilians are “the means and method used in the course of the attack, the
status of the victims, their number, … the nature of the crimes committed in its course, the resistance to the assailants
at the time and the extent to which the attacking force may be said to have complied or attempted to comply with the
precautionary requirements of the laws of war”, Gali} Appeal Judgement, para. 132 referring to Kunarac et al. Appeal
Judgement, para. 91 and Blaški Appeal Judgement, para. 106.
136 Kordi and ^erkez Appeal Judgement, paras 55-67.
137 Kordi} and ^erkez Appeal Judgement, para. 97; Blaški Appeal Judgement, para. 110. The Appeals Chamber based
its holding on the ICRC Commentary on Additional Protocols, pp 611-612 (regarding Article 50(3) of Additional
Protocol I), which explains the principle as follows:
In war time conditions 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.
138 Article 85(3)(a) of Additional Protocol I qualifies as a grave breach the act of “wilfully … making the civilian
population or individual civilians the object of attack”. The ICRC Commentary on Additional Protocols, para. 3474,
concerning this provision reads: “wilfully: the accused must have acted consciously and with intent, i.e., with his mind
on the act and its consequences, and willing them (‘criminal intent’ or 'malice aforethought’); this encompasses the
concepts of 'wrongful intent’ or 'recklessness’, viz., the attitude of an agent who, without being certain of a particular
result, accepts the possibility of it happening; on the other hand, ordinary negligence or lack of foresight is not covered,
i.e., when a man acts without having his mind on the act or its consequences.” See also Gali Appeal Judgement, para.
140.
Case No. IT-95-11-T 31 12 June 2007
armed conflicts.139 The definition of torture is identical under both Article 3 and Article 5 of the
Statute.140 It comprises the following elements:
1. The intentional infliction, by act or omission, of severe pain or suffering, whether physical
or mental;
2. the act or omission must have occurred in order to obtain information or a confession, or to
punish, intimidate or coerce the victim or a third person, or to discriminate, on any ground,
against the victim or a third person (“prohibited purpose”).141
75. The pain and suffering inflicted during acts of torture is more severe than the pain and
suffering inflicted during other forms of mistreatment and cruel treatment.142 The Trial Chamber
will assess on a case-by-case basis whether the acts or omissions charged as torture, inflicted severe
physical or mental pain or suffering on the part of the victim.143 In its assessment of the severity of
the pain or suffering inflicted, the Trial Chamber may take several factors into account, including
the duration of the suffering inflicted, the nature of the crimes, the physical or mental condition of
the victim, the effect of the acts on the victim, the victim’s age, and the victim’s position of
inferiority to the perpetrator.144
76. In the jurisprudence of the Tribunal several acts have been listed as rising to the level of
seriousness necessary to constitute torture. These acts include beatings, administering electric
shocks, forcing victims to watch executions of others, rape, forcing victims to bury the bodies of
their neighbours and friends, and causing burn injuries.145
77. As to the mens rea, the perpetrator’s acts or omissions must be committed for a prohibited
purpose. The definition of torture provides a non-exhaustive list of prohibited purposes.146 There is
no requirement that the act of the perpetrator be committed solely or predominantly to serve this
prohibited purpose.147 Once the conduct has been carried out for one of the prohibited purposes, it
139 ^elebi}i Trial Judgement, para. 446, referring in fn 455 to Article 12 Geneva Conventions I and II; Article 50
Geneva Convention I; Article 51 Geneva Convention II; Articles 17, 87 and 130 Geneva Convention III; Articles 32
and 147 Geneva Convention IV; Common Article 3 Geneva Conventions I–IV; Article 75 Additional Protocol I;
Article 4 Additional Protocol II.
140 The definition of torture is largely based on the 1984 Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, which entered into force on 26 June 1987.
141 See e.g. Kunarac et al. Appeal Judgement, paras 142-144; Brðanin Trial Judgement, para. 481; Furunzd`ija Trial
Judgement, para. 162.
142 Br|anin Trial Judgement, para. 483. See also ^elebi}i Trial Judgement, para. 468.
143 Naletili} and Martinovi} Appeal Judgement, para. 299; ^elebi}i Trial Judgement, para. 469.
144 Naletili} and Martinovi} Appeal Judgement, para. 300; Br|anin Trial Judgement, para. 484, citing Kvo~ka et al.
Trial Judgement, para. 143 and Krnojelac Trial Judgement, para. 182.
145 See e.g. Kunarac et al. Appeal Judgement, para. 151; ^elebi}i Trial Judgement, para. 495-496, 971, 973, 976-77;
Naletili} and Martinovi} Trial Judgement, paras 350-352; Branin Trial Judgement, paras 492, 503-511, 524.
146 ^elebi}i Trial Judgement, para. 470; Br|anin Trial Judgement, para. 487.
147 Kunarac et al. Appeal Judgement, para. 155; ^elebi}i Trial Judgement, para. 470.
Case No. IT-95-11-T 32 12 June 2007
is immaterial whether there is another purpose behind the conduct.148 In addition, it needs to be
established that the perpetrator acted or omitted to act with direct or indirect intent.
G. Cruel treatment
78. Milan Marti} is charged with cruel treatment as a violation of the laws or customs of war, as
recognised in Common Article 3, pursuant to Article 3(1)(a) of the Statute (Counts 9 and 18).
79. The crime of cruel treatment is defined in the jurisprudence as an intentional act or omission
causing serious mental or physical suffering or injury, or constituting a serious attack on human
dignity, committed against a person not taking an active part in hostilities.149 The perpetrator must
be shown to have acted with direct intent or with indirect intent, that is, in the knowledge that cruel
treatment was a likely consequence of his act or omission.150
80. It is not required that the suffering caused by the cruel treatment be “lasting”.151 In its
assessment of the seriousness of the act or omission, the Trial Chamber will take all circumstances
into consideration, including factors such as the age and health of the victim, and the physical and
mental effects of the crime upon the victim.152 Moreover, it is not required that the seriousness of
the suffering or injury amounts to the level of seriousness required for torture.153
H. Other inhumane acts
81. Milan Marti} is charged with three counts of other inhumane acts, as crimes against
humanity pursuant to Article 5(i) of the Statute. Count 7 charges Milan Marti} with “inhumane
acts” in relation to events in detention centres, Count 11 charges Milan Marti with “inhumane acts
(forcible transfers)” in relation to the removal of non-Serb inhabitants of the SAO Krajina and the
RSK, and Count 17 charges Milan Marti with “inhumane acts” in relation to the shelling of
Zagreb.154
148 Kunarac et al. Appeal Judgement, para. 155.
149 ^elebi}i Appeal Judgement, para. 424; Limaj et al. Trial Judgement, para. 231.
150 The Trial Chamber notes that in the jurisprudence “likely” is synonymous to “probable”, see e.g. Prosecutor v.
Radoslav Br|anin and Momir Tali}, Decision on Form of Further Amended Indictment and Prosecution Application to
Amend, 26 Jun 2001, para. 29; Simi} et al. Trial Judgement, para. 76, citing Vasiljevi} Trial Judgement, para. 236;
Limaj et al. Trial Judgement, para. 231.
151 Kunarac et al. Trial Judgement, para. 501.
152 Simi} et al. Trial Judgement, para. 75; Vasiljevi} Trial Judgement, para. 235; Krnojelac Trial Judgement, para. 131.
153 ^elebi}i Trial Judgement, para. 510; Kordi} and ^erkez Trial Judgement, para. 245. See supra section II F.
154 The elements of the crime of other inhumane acts (forcible transfer) are discussed in the context of deportation
pursuant to Article 5(d) of the Statute, see infra section II M.
Case No. IT-95-11-T 33 12 June 2007
82. “Other inhumane acts” is a residual category of crimes against humanity recognised as
forming part of customary international law.155 It must be emphasised that the Trial Chamber must
exercise great caution in finding that an alleged act, which is not regulated elsewhere in Article 5 of
the Statute, amounts to “other inhumane acts” within the meaning of Article 5(i).156
83. In addition to meeting the general requirements for application of Article 5, an act or
omission must satisfy the following elements to fall within the category of other inhumane acts:
1. the act or omission was of similar seriousness to the other crimes enumerated in Article 5;
2. the act or omission caused serious mental or physical suffering or injury, or constituted a
serious attack on human dignity; and
3. the act or omission was carried out intentionally by the accused or by persons for whom the
accused bears criminal responsibility.157
84. The element of “similar seriousness” is to be evaluated in light of all factual circumstances,
including the nature of the act or omission, the context within which it occurred, the individual
circumstances of the victim as well as the physical and mental effects on the victim.158 There is no
requirement that the effects on the victim be long-term, however any such effects will form part of
the determination whether the act or omission meets the “similar seriousness” requirement.159
85. The mens rea required is that the perpetrator had direct or indirect intent to inflict, by act or
omission, serious physical or mental suffering or to commit a serious attack on the victim’s human
dignity.160
I. Imprisonment
86. Milan Marti} is charged with imprisonment as a crime against humanity pursuant to Article
5(e) of the Statute (Count 5).
155 Staki Appeal Judgement, para. 315, noting in fn 649 that the category of other inhumane acts was included in Art.
6(c) of the Nuremberg Charter, Art. 5(c) of the Tokyo Charter, and Art. II(1)(c) of Control Council Law No. 10, and
that convictions have been entered on this ground. The Appeals Chamber also noted “that numerous human rights
treaties also prohibit inhuman and degrading treatment”, including the ICCPR and the ECHR, ibid. Kordi and erkez
Appeal Judgement, para. 117, affirming Kupreški et al. Trial Judgement, para. 563.
156 Kordi and erkez Appeal Judgement, para. 117. In that case, the Appeals Chamber noted that “‘other inhumane
acts’ were charged exclusively as injuries”, ibid. See also Blagojevi and Joki Trial Judgement, para. 625, which held
in relation to Article 5(i) that “norms of criminal law must always provide individuals with sufficient notice of what is
criminal behaviour and what is not.”
157 Kordi and erkez Appeal Judgement, para. 117. See also Krnojelac Trial Judgement, paras 130-131; Vasiljevi}
Trial Judgement, para. 234.
158 Gali Trial Judgement para. 153; Vasiljevi} Trial Judgement, para. 235; Krnojelac Trial Judgement, para. 131;
^elebi}i Trial Judgement, para. 536; Kunarac et al. Trial Judgement, para. 501.
159 Vasiljevi Trial Judgement, para. 235.
160 Krnojelac Trial Judgement, para. 132; Vasiljevic Trial Judgement, para. 236; Kayishema and Ruzindana Trial
Judgement, para. 153.
Case No. IT-95-11-T 34 12 June 2007
87. Imprisonment is defined as arbitrary imprisonment, that is the deprivation of liberty of an
individual without due process of law.161
88. Deprivation of liberty can be achieved by an act or omission on the part of the
perpetrator.162 The act or omission must be committed with the intent to deprive a civilian of his or
her physical liberty without due process of law or in the reasonable knowledge that his act or
omission was likely to cause the deprivation of physical liberty without due process of law.163
J. Wanton destruction of villages, or devastation not justified by military necessity
89. Milan Marti is charged with wanton destruction of villages, or devastation not justified by
military necessity, violations of the laws or customs of war pursuant to Article 3(b) of the
Statute.164
90. The following elements must be proven in relation to these violations:
1. the destruction of property has occurred on a large scale;
2. the destruction was not justified by military necessity; and
3. the perpetrator acted with the intent to destroy the property in question or in reckless
disregard of the likelihood of its destruction.165
91. The Trial Chamber considers that there is no material difference between the elements of the
crimes of wanton destruction and devastation in the context of this case.166
161 Kordi} and ^erkez Appeal Judgement, para. 116. The Appeals Chamber noted that the Trial Chamber had used the
term “individual” in the sense of the term “civilian”, Kordi} and ^erkez Appeal Judgement, fn 139. The Trial Chamber
notes that the Appeals Chamber also included the requirement “as part of a widespread or systematic attack directed
against a civilian population” in its definition of the crime of imprisonment. The Trial Chamber recalls that this is a
general requirement for crimes against humanity. Accordingly, this requirement does not need to be included in the
definition of elements of the crime of imprisonment.
162 Krnojelac Trial Judgement, para. 115, cited in Simi} et al. Trial Judgement, paras 64-65.
163 Simi} et al. Trial Judgement, paras 64-65, citing Krnojelac Trial Judgement, para. 115. The Trial Chamber notes that
the Trial Chambers in Krnojelac and in Simi} et al. included that the acts or omission be “performed by the accused or
a person or persons for whom the accused bears criminal responsibility”, ibid. (emphasis added). The Trial Chamber
considers that these words comprise definitions included in elements of Article 7(1) and 7(3) and that there is no need to
include them in the definition of a crime.
164 Had`ihasanovi} and Kubura Rule 98 bis Appeal Decision, para. 26; Br|anin Trial Judgement, para. 591. Article
3(b) of the Statute is derived from Article 23(g) of the Hague Convention (IV) of 1907 and the annexed Regulations
(“Hague Regulations”). Article 23 of the Hague Regulations reads, in its relevant part:
In addition to the prohibitions provided by special Conventions, it is especially forbidden: …
(g) To destroy or seize the enemy's property, unless such destruction or seizure be imperatively
demanded by the necessities of war; …
165 Kordi} and ^erkez Appeal Judgement, para. 74, reiterating Kordi} and ^erkez Trial Judgement, para. 346. See also
Naletili and Martinovi} Trial Judgement, para. 579; Had`ihasanovi} and Kubura Trial Judgement, para. 41; Ori} Trial
Judgement, para. 581.
166 For a similar opinion with which this Trial Chamber agrees, see Strugar Trial Judgement, paras 290-297, reaching
this conclusion both from a linguistic point of view and with reference to international instruments (e.g. Article 6(B) of
Case No. IT-95-11-T 35 12 June 2007
92. The element of destruction of property “on a large scale” requires that a considerable
number of objects were destroyed. However, it is not required that a city, town or village has been
destroyed in its entirety.167 The Trial Chamber will assess on a case-by-case basis whether the
extent of any proven destruction of a particular village was of sufficient scale to meet this
element.168
93. The destruction or devastation of property is prohibited, except where justified by military
necessity.169 The Trial Chamber considers that military necessity may justify the infliction of
collateral damage to civilian objects and as such constitutes an exception to the principles of the
protection of civilian objects.170 The protection of civilian objects may cease entirely or be reduced
or suspended when belligerents cannot avoid causing collateral damage to civilian property even
though the object of a military attack is comprised of military objectives.171 In order to establish
that the destruction was not justified by military necessity, the Prosecution has to prove not only
that the destruction occurred, but also when and how the destruction occurred.172 An assertion of
military necessity or the absence thereof will be assessed on a case-by-case basis. In principle,
destruction carried out before fighting begins or after fighting has ceased cannot be justified by
claiming military necessity.173
94. The mens rea of wanton destruction and devastation under Article 3(b) of the Statute is that
the perpetrator acted with direct or indirect intent.174
the Nuremberg Charter; Article II (1)(b) of Control Council Law No. 10) treating “destruction” and “devastation”
together. See also Brðanin Trial Judgement, paras 591-593.
167 Ori} Trial Judgement, para. 585; Had`ihasanovi} and Kubura Trial Judgement, para. 43.
168 Ori} Trial Judgement, para. 585. The Trial Chamber in Had`ihasanovi} and Kubura held that “destruction is large
scale either when a large quantity of property has been destroyed or when the value of a single destroyed object is
sufficiently great”, Had`ihasanovi} and Kubura Trial Judgement, para. 43.
169 Kordi} and ^erkez Appeal Judgement, para. 495; Kordi} and ^erkez Trial Judgement, para. 346; Naletili and
Martinovi} Trial Judgement, para. 579; Br|anin Trial Judgement, para. 592; Strugar Trial Judgement, para. 295;
Had`ihasanovi} and Kubura Trial Judgement, para. 45. Article 14 of the 1863 Lieber Code provides that “military
necessity, as understood in modern civilized nations, consists in the necessity of those measures which are
indispensable for securing the ends of war, and which are lawful according to the modern law and usages of war”.
170 Had`ihasanovi} and Kubura Trial Judgement, para. 45; Gali} Appeal Judgement, para. 190.
171 Kupreški et al. Trial Judgement, para. 522, cited by Had`ihasanovi} and Kubura Trial Judgement, para. 45.
172 Kordi} and ^erkez Appeal Judgement, para. 495.
173 Ori} Trial Judgement, para. 588; Naletili and Martinovi} Trial Judgement, para. 589. However, there may be rare
occasions in which pre-emptive destruction could arguably fall within the scope of ‘military necessity’, when such
destruction is reasonably connected with the overcoming of enemy forces, Ori} Trial Judgement, para. 588.
174 Kordi} and ^erkez Trial Judgement, para. 346; Naletili and Martinovi} Trial Judgement, fn 1440; Br|anin Trial
Judgement, para. 593; Strugar Trial Judgement, para. 296; Had`ihasanovi} and Kubura Trial Judgement, para. 40; Ori}
Trial Judgement, para. 589.
Case No. IT-95-11-T 36 12 June 2007
K. Destruction or wilful damage done to institutions dedicated to education or religion
95. Milan Marti is charged with destruction or wilful damage done to institutions dedicated to
religion or education, a violation of the laws or customs of war pursuant to Article 3(d) of the
Statute (Count 13).175
96. The crime of destruction or wilful damage done to institutions dedicated to religion or
education has the following elements:176
1. an act has caused damage to, or destruction of, an institution dedicated to religion or
education;
2. the damaged or destroyed institution was not used for military purposes at the time of the
act; and
3. the act was carried out with intent to destroy or damage, or in reckless disregard of the
likelihood of the destruction or damage to the institution in question.
97. Article 3(d) of the Statute is considered as comprising of two types of protection for
cultural, historical, and religious monuments: general protection and special protection.177 General
protection applies to civilian objects, that is all objects which are not military objects.178 Special
protection is granted to “historic monuments, works of art, and places of worship, provided they
constitute the cultural or spiritual heritage of peoples”.179 The “cultural or spiritual heritage of
peoples” covers “objects whose value transcends geographical boundaries, and which are unique in
character and are intimately associated with the history and culture of a people”.180 Thus, special
protection does not encompass all the buildings or institutions dedicated to education or religion.181
175 Article 3(d) of the Statute prohibits “seizure of, destruction or wilful damage done to institutions dedicated to
religion, charity and education, the arts and sciences, historic monuments and works of art and science.” Article 3(d) of
the Statute is derived from Articles 27 and 56 of the Hague Regulations, and also has its basis in the Hague Convention
for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954 (“1954 Hague Convention”),
Articles 52 and 53 of Additional Protocol I, and Article 16 of Additional Protocol II, Kordi} and ^erkez Appeal
Judgement, paras 89-91; Had`ihasanovi} and Kubura Rule 98 bis Appeal Decision, paras 45-46; Br|anin Trial
Judgement, para. 595; Strugar Trial Judgement, paras 303-306.
176 Strugar Trial Judgement, para. 312.
177 Kordi} and ^erkez Appeal Judgement, paras 89-91; Had`ihasanovi} and Kubura Rule 98 bis Appeal Decision, para.
45. General protection is codified, inter alia, in Article 52 of Additional Protocol I.
178 Kordi} and ^erkez Appeal Judgement, para. 89; Had`ihasanovi} and Kubura Rule 98 bis Appeal Decision, para. 45.
179 Kordi} and ^erkez Appeal Judgement, para. 90; Had`ihasanovi} and Kubura Rule 98 bis Appeal Decision, para. 46,
both referring to Article 53 of Additional Protocol I. Article 16 of Additional Protocol II reiterates the protection for the
same categories of property. See also Article 1(a) of the 1954 Hague Convention, which also codifies the special
protection.
180 Kordi} and ^erkez Appeal Judgement, para. 91; ICRC Commentary on Additional Protocols, paras 2063-2068
(regarding Article 53 of Additional Protocol I), paras 4840-4844 (regarding Article 16 of Additional Protocol II).
181 Kordi} and ^erkez Appeal Judgement, paras 89-90, 92; Br|anin Trial Judgement, fn 1505.
Case No. IT-95-11-T 37 12 June 2007
98. The protection of institutions dedicated to religion or education is lost if such institutions are
used for a military purpose.182 The Trial Chamber considers that this exception applies both to
general protection and special protection under Article 3(d) of the Statute.183 However, the
protection is not lost simply because military activities or military installations are situated in the
immediate vicinity of the institution. It is the use of an institution and not its location which is the
decisive factor.184
99. The mens rea of this crime is that the perpetrator acted with direct or indirect intent.185
L. Plunder of public or private property
100. Milan Marti is charged with plunder of public and private property, a violation of the laws
or customs of war pursuant to Article 3(e) of the Statute (Count 14).186
101. Plunder of public or private property under Article 3(e) of the Statute is committed “when
private or public property is appropriated intentionally and unlawfully”.187 The prohibition of
plunder includes “all forms of unlawful appropriation of property in armed conflict for which
individual criminal responsibility attaches under international law, including those acts traditionally
described as ‘pillage’”.188 There is no difference between public and private property under the
Statute.189
102. For the crime of plunder to be established, the appropriation of private or public property
must be done without lawful basis or legal justification. Belligerent occupants may, in certain
instances, lawfully use private or public property in the occupied territory for their military
needs.190 A party to the conflict is also allowed to seise enemy military equipment captured or
found on the battlefield as war booty, with the exception that the personal belongings of the
182 Kordi} and ^erkez Trial Judgement, paras 361-362; Naletili} and Martinovi} Trial Judgement, para. 605; Br|anin
Trial Judgement, para. 598; Strugar Trial Judgement, para. 310; Had`ihasanovi} and Kubura Trial Judgement, paras
58, 60-61.
183 Had`ihasanovi} and Kubura Trial Judgement, paras 60-61. See also ICRC Commentary on Additional Protocols,
paras 2069-2079 (regarding Article 53 of Additional Protocol I).
184 Naletili} and Martinovi} Trial Judgement, para. 605; Strugar Trial Judgement, para. 310.
185 Br|anin Trial Judgement, para. 599; Had`ihasanovi} and Kubura Trial Judgement, para. 59.
186 The offence of plunder has also been codified in the following instruments: Article 6(b) of the Nuremberg Charter
and Article 2(1)(b) of Control Council Law No. 10, punishing the war crime of “plunder of public and private
property”; Articles 28 and 47 of the Hague Regulations, Article 7 of Hague Convention IX, and Article 33 of Geneva
Convention IV, Article 4(2)(g) of Additional Protocol II, prohibiting pillage; Article 46 of the Hague Regulations,
prohibiting confiscation of private property.
187 Kordi} and ^erkez Appeal Judgement, para. 84.
188 Kordi} and ^erkez Appeal Judgement, para. 79. See also Bla{ki} Appeal Judgement, para. 147. Acts of unjustified
appropriation of property range from isolated acts of looting, theft or plunder committed by individuals for private gain,
to organised seizure of property in violation of the rights of the owners, undertaken within the framework of a
systematic economic exploitation of the targeted area, ^elebi}i Trial Judgement, para. 590; Jeliši} Trial Judgement,
para. 48; Kordi} and ^erkez Trial Judgement, para. 352.
189 Kordi} and ^erkez Appeal Judgement, para. 79.
Case No. IT-95-11-T 38 12 June 2007
prisoners of war may not be taken away.191 According to the Hague Regulations, forcible
contribution of money, requisition for the needs of the occupying army, and seizure of material
obviously related to the conduct of military operations, though restricted, are lawful in principle.192
103. It is required that the property unlawfully appropriated be of “sufficient monetary value” for
its appropriation to involve grave consequences for the victim.193 The assessment of whether a
piece of property holds the required value “can only be made on a case-by-case basis and only in
conjunction with the general circumstances of the crime”.194 This requirement could be met in cases
where appropriations take place vis-à-vis a large number of people, even though they do not lead to
grave consequences for each individual.195 What needs to be considered here is “the overall effect
on the civilian population and the multitude of offences committed”.196
104. With respect to the mens rea of this crime, the unlawful appropriation of property must have
been perpetrated with either direct or indirect intent.197
M. Deportation and other inhumane acts (forcible transfer)
105. Milan Marti is charged with deportation and other inhumane acts (forcible transfers) under
Article 5(d) and (i), respectively (Counts 10 and 11).198
106. The protected interests underlying the prohibitions against deportation and forcible transfer
“include the right of the victim to stay in his or her home and community and the right not to be
deprived of his or her property by being forcibly displaced to another location.”199
190 Naletili} and Martinovi} Trial Judgement, para. 616; Had`ihasanovi} and Kubura Trial Judgement, para. 51.
191 Had`ihasanovi} and Kubura Trial Judgement, para. 51. See also Lieber Code, Article 45; Hague Regulations,
Article 4; Geneva Convention III, Article 18 (1).
192 Hague Regulations, Articles 51-53. Article 52 provides that “Requisitions in kind and services shall not be
demanded from municipalities or inhabitants except for the needs of the army of occupation. They shall be in
proportion to the resources of the country, and of such a nature as not to involve the inhabitants in the obligation of
taking part in military operations against their own country. Such requisitions and services shall only be demanded on
the authority of the commander in the locality occupied. Contributions in kind shall as far is possible be paid for in
cash; if not, a receipt shall be given and the payment of the amount due shall be made as soon as possible”. See also
Geneva Convention IV, Articles 55(2) and 57; Naletili} and Martinovi} Trial Judgement, para. 616; Simi} et al. Trial
Judgement, para. 100. Article 4(2)(g) of Additional Protocol II prohibits pillage in non-international armed conflicts,
see Had`ihasanovi} and Kubura Trial Judgement, para. 52; Customary International Humanitarian Law, ICRC,
Volume I, pp 181-182.
193 ^elebi}i Trial Judgement, para. 1154, referred to by Kordi} and ^erkez Trial Judgement, para. 352 and later upheld
by Kordi} and ^erkez Appeal Judgement, para. 82.
194 Kordi} and ^erkez Appeal Judgement, para. 82; Hadžihasanovi and Kubura Trial Judgement, para. 55.
195 Kordi} and ^erkez Appeal Judgement, para. 83; Naletili} and Martinovi} Trial Judgement, para. 614;
Had`ihasanovi} and Kubura Trial Judgement, para. 55.
196 Kordi} and ^erkez Appeal Judgement, para. 83.
197 Had`ihasanovi} and Kubura Trial Judgement, para. 50; Ori} Decision on the Motion for Acquittal pursuant to Rule
98 bis, Hearing, 8 Jun 2005, T. 9027.
198 In this judgement, the term “forcible transfer” will be used concerning displacement charged in Count 11.
199 Staki Appeal Judgement, para. 277, accepting Staki Trial Judgement, para. 681.
Case No. IT-95-11-T 39 12 June 2007
107. The actus reus of deportation is “the forced displacement of persons by expulsion or other
forms of coercion from the area in which they are lawfully present, across a de jure border or, in
certain circumstances, a de facto border, without grounds permitted under international law.”200 The
actus reus of forcible transfer is the forced displacement of persons within national boundaries.201
108. The element that the displacement be forced requires that the victims had no genuine choice
in their displacement.202 In situations where the victims have consented, or even requested, their
removal, that consent “must be real in the sense that it is given voluntarily and as a result of the
individual’s free will, assessed in the light of surrounding circumstances.”203
109. International law permits involuntary displacements on humanitarian grounds.204 Thus, in
cases where displacements are permitted on humanitarian grounds, the act of displacement cannot
constitute the actus reus of deportation or forcible transfer.205 However, displacements for
humanitarian reasons are not justifiable where the humanitarian crisis that caused the displacement
is itself the result of the accused’s own unlawful activity.206
110. With regard to deportation, the Staki Appeals Chamber found that “the default principle
under customary international law … is that there must be expulsion across a de jure border to
another country.”207 The Appeals Chamber has also held that under certain circumstances
displacement across a de facto border may be sufficient to amount to deportation.208
111. The mens rea of deportation is that the perpetrator must intend to displace the victims across
the border.209 The mens rea of forcible transfer is that the perpetrator must intend to displace the
200 Staki Appeal Judgement, para. 278.
201 Staki Appeal Judgement, para. 317.
202 Staki Appeal Judgement, para. 279. The absence of genuine choice has been interpreted to include displacement as
a result of threats or the use of force, fear of violence, and illegal detention, Krnojelac Appeal Judgement, para. 229.
The Appeals Chamber has held that factors other than force may render an act involuntary, such as taking advantage of
coercive circumstances, Kunarac et al. Appeal Judgement, para. 129 (in the context of rape).
203 Staki Appeal Judgement, para. 279, referring to Krnojelac Appeal Judgement para. 299 and Kunarac et al. Appeal
Judgement, paras 127-128 (the latter in the context of rape).
204 Article 49(2) of Geneva Convention IV, which is applicable to international armed conflict, provides that “the
Occupying Power may undertake total or partial evacuation of a given area if the security of the population or
imperative military reasons so demand.” Similarly, Article 17 of Additional Protocol II, which is applicable to noninternational
armed conflict, provides that “the displacement of the civilian population shall not be ordered for reasons
related to the conflict unless the security of the civilians involved or imperative military reasons so demand.” While
Article 17 of Additional Protocol II does not use the term “evacuation” it is clear from reading the provision that the
same temporary measure as described in Article 49(2) of Geneva Convention IV is intended.
205 Staki Appeal Judgement, para. 286, noting that “the participation of an NGO in facilitating displacements does not
in and of itself render an otherwise unlawful transfer lawful”, ibid.
206 Staki Appeal Judgement, para. 287.
207 Staki Appeal Judgement, para. 300.
208 In general, the question whether a particular de facto border is sufficient for the purposes of the crime of deportation
should be examined on a case by case basis in light of customary international law, Staki Appeal Judgement, para. 300,
(footnotes omitted).
209 Staki Appeal Judgement, para. 278.
Case No. IT-95-11-T 40 12 June 2007
victims within the relevant national border.210 It is not necessary for either crime that the perpetrator
intends the displacement to be permanent.211
N. Persecution
112. Milan Marti is charged with persecution, as a crime against humanity pursuant to Article
5(h) of the Statute (Count 1).
113. The crime of persecution consists of an act or omission, which:
1. discriminates in fact and which denies or infringes upon a fundamental right laid down in
international customary or treaty law; and
2. was carried out deliberately with the intention to discriminate on political, racial or religious
grounds.212
114. Each of the three grounds listed is in itself sufficient to qualify conduct as persecution,
notwithstanding the conjunctive “and” in the text of Article 5(h).213
115. What distinguishes persecution from other crimes against humanity is that the underlying
act is committed on discriminatory grounds.214 There is no comprehensive list of the acts which
may constitute persecution.215 Such acts may be one of those listed under Article 5 of the Statute, or
one of the acts constituting a crime under other articles of the Statute.216 Furthermore, a persecutory
act need not be prohibited explicitly either in Article 5 or elsewhere in the Statute.217
116. It is not the case, however, that any act, if committed with the requisite discriminatory
intent, amounts to persecutions as a crime against humanity.218 There must be clearly defined limits
on the expansion of the types of acts which qualify as persecution.219 In order to amount to
persecutions, the act must constitute a denial or infringement of a fundamental right laid down in
210 Staki Appeal Judgement, para. 317.
211 Staki Appeal Judgement, paras 278, 317.
212 Kvoka et al. Appeal Judgement, para. 320; Krnojelac Appeal Judgement para. 185; Vasiljevi Appeal Judgement
para. 113; Bla{ki Appeal Judgement, para. 131; Kordi and ^erkez Appeal Judgement para. 101; Staki Appeal
Judgement, para. 327.
213 Tadi} Trial Judgement, para. 713. See e.g. Krnojelac Appeal Judgement, para. 184.
214 Kupre{ki et al. Trial Judgement, para. 607.
215 Vasiljevi Trial Judgement, para. 246, citing Tadi Trial Judgement, para. 694; Kupre{ki et al. Trial Judgement,
paras 567-568, 614; Bla{ki Trial Judgement, 218-219; Kordi and erkez Trial Judgement, para. 192; Krnojelac Trial
Judgement, para. 433.
216 Krnojelac Appeal Judgement, para. 219.
217 Kupre{ki et al. Trial Judgement, para. 614. The Trial Chamber in Tadi held that “the persecutory act must be
intended to cause, and result in, an infringement on an individual’s enjoyment of a basic or fundamental right”, Tadi
Trial Judgement, para. 715. Furthermore, it has been held that the acts themselves do not have to be inherently criminal,
but they may become criminal and persecutory if committed with discriminatory intent, Kvo~ka et al. Trial Judgement,
para. 186. See also Tadi Trial Judgement, para. 710.
218 Bla{ki Appeal Judgement, para. 139.
219 Kupre{ki et al. Trial Judgement, para. 618; Kordi and erkez Trial Judgement para. 194.
Case No. IT-95-11-T 41 12 June 2007
customary international law.220 Furthermore, not every act which constitutes a denial or
infringement of a fundamental right is serious enough to constitute persecution. Acts of persecution
must be of equal gravity to the acts enumerated under Article 5.221
117. A single act or omission may be sufficient to constitute persecution “as long as this act or
omission discriminates in fact and was carried out deliberately with the intention to discriminate on
one of the listed grounds.”222 Therefore, the act or omission itself must have discriminatory
consequences and not just be carried out with discriminatory intent.223
118. It has been held that an act is discriminatory when a victim is targeted because of
membership of a “group defined by the perpetrator on a political, racial or religious basis”.224
However, it is not necessary that a victim actually be a member of the targeted group. Thus, a Serb
mistaken for a Muslim may still be the victim of the crime of persecution.225
119. The jurisprudence holds that the following acts, which the Prosecution has charged under
Count 1 of the Indictment, may constitute the underlying acts of the crime of persecution:
extermination and murder; imprisonment, inhumane living conditions, torture, beatings, sexual
assault, unlawful attacks on civilians, restrictive and discriminatory measures, robbery, deportation
or forcible transfer, destruction of homes, other public and private property, cultural institutions,
historic monuments and sacred sites.226
220 Kordi Appeal Judgement, para. 103; Bla{ki Appeal Judgement, para. 139.
221 Bla{ki Appeal Judgement, para. 160; Kupre{ki et al. Trial Judgement para. 619.
222 Vasiljevi Appeal Judgement, para. 113. See also Kordi and erkez Appeal Judgement, para. 102.
223 Bla{ki Appeal Judgement, para. 135. See also Blagojevi} and Joki} Trial Judgement, para. 583; Staki Trial
Judgement, para. 733.
224 Blagojevi} and Joki} Trial Judgement, para. 583.
225 Krnojelac Appeal Judgement para. 185.
226 Bla{ki Appeal Judgement, paras 143, 153, 155, 159; Kordi and erkez Appeal Judgement paras 104-106, 108,
672; Krnojelac Appeal Judgement, paras 221-222; Branin Trial Judgement, paras 999, 1029 et seq; Krnojelac Trial
Judgement, paras 438-443; Kupre{ki et al. Trial Judgement, para. 615; Staki Trial Judgement, para. 757 (holding that
“not only rape, but also any other sexual assault falling short of actual penetration is punishable as persecution”);
Tadi Trial Judgement, para. 717. While robbery has not previously been expressly considered as a crime which may
constitute an underlying act of persecutions, the Trial Chamber notes that the fundamental right to property is
recognised in the Tribunal’s jurisprudence, see e.g. Bla{kiæ Appeal Judgement, para. 145, Blagojeviæ Trial Judgement,
paras 593-594; Naleteliæ and Martinoviæ Trial Judgement, para. 699 (and authorities cited therein); Kordiæ and ^erkez
Appeal Judgement, para. 81. The Trial Chamber further notes that destruction of property may constitute an underlying
act of the crime of persecutions, see e.g. Bla{kiæ Appeal Judgement, para. 146 (and authorities cited therein); Kordiæ
and ^erkez Appeal Judgement, para. 108. Aggravated forms of crimes against property in the context of plunder under
Article 3 of the Statute have been recognised as acts of persecutions, see e.g. Kupre{ki et al. Trial Judgement, para.
631; Kordiæ and Èerkez Trial Judgement, para. 205. Moreover, theft and robbery have been considered in the context of
a persecutory campaign, see e.g. Kvoèka et al. Trial Judgement, para. 496, in which the Trial Chamber held “the
Accused was involved in the extortion of detainees and stealing money from detainees in Omarska camp, which in this
context can be characterized as part of the harassment inflicted upon detainees in the camp and thus a part of the
persecutory campaign”. See also Kvoka et al. Trial Judgement, para. 731, Kordiæ and Èerkez Trial Judgement, paras
514-520. The Trial Chamber is therefore satisfied that the appropriation of property with violence in the form of
robbery may constitute an underlying act of the crime of persecution if perpetrated with the requisite intent. In relation
to destruction, the Trial Chamber in Kupre{ki et al. found that the comprehensive destruction of homes and property,
Case No. IT-95-11-T 42 12 June 2007
120. The crime of persecution requires evidence of a specific intent to discriminate on political,
racial or religious grounds.227 This intent must be aimed at a group, rather than an individual; thus
the mens rea “is the specific intent to cause injury to a human being because he belongs to a
particular community or group.”228
121. Discriminatory intent may be inferred, for example from the discriminatory nature of an
attack characterised as a crime against humanity provided that the circumstances surrounding the
commission of the alleged acts substantiate the existence of such intent.229 However, discriminatory
intent may not be inferred directly from the general discriminatory nature of such an attack, that is
such a context may not in and of itself amount to evidence of discriminatory intent.230
122. Circumstances which may be taken into consideration when inferring discriminatory intent
include “the systematic nature of the crimes committed against a racial or religious group and the
general attitude of the alleged perpetrator as demonstrated by his behaviour”.231 Generally, such
specific intent can only be inferred from “objective facts and the general conduct of an accused seen
in its entirety.”232
O. The Defence’s challenge to the concept of JCE
123. In its closing arguments, the Defence submitted that JCE is not envisaged in the Statute as a
mode of liability and that its existence and applicability can only be established by the United
Nations Security Council.233 The Defence therefore submits that the application of JCE in the
instant case is beyond the competence of the Trial Chamber.234 This conclusion, in the Defence’s
view, is not affected by the consideration that JCE has been applied in previous cases.235
which constituted the destruction of the livelihood of a certain population, may constitute a gross or blatant denial of
fundamental rights, and if committed on discriminatory grounds, could amount to persecutions, Kupre{ki et al. Trial
Judgement, para. 631. The Trial Chamber in Kordi and erkez held that the destruction and damage of religious or
educational institutions may constitute persecution, Kordi and erkez Trial Judgement, para. 207. In relation to
plunder, the Appeals Chamber in Kordi and erkez held that it must be considered whether an act of plunder,
committed separately or cumulatively, with discriminatory intent in concreto amounts to persecutions being of an equal
gravity as the other crimes against humanity listed in Article 5 of the Statute, Kordi and erkez Appeal Judgement
para. 109. See also Bla{ki Trial Judgement, para. 227; Kordi and erkez Trial Judgement para. 205; Kupre{ki et al.
Trial Judgement para. 631; Tadi Trial Judgement paras 707, 710.
227 Kvoka et al. Appeal Judgement, para. 460; Bla{ki Appeal Judgement, para. 165.
228 Kordi and erkez Appeal Judgement, para. 111.
229 Bla{ki Appeal Judgement, para. 164, citing Krnojelac Appeal Judgement, 184. See also Kordi and erkez Appeal
Judgement paras 110, 950; Kvoka et al. Appeal Judgement para. 366; Naleteli} and Martinovi} Appeal Judgement,
paras 131, 146, 572.
230 Kvo~ka et al. Appeal Judgement, para. 460 (emphasis added).
231 Kvo~ka et al. Appeal Judgement, para. 460.
232 Kordi} and ^erkez Appeal Judgement, para. 715.
233 Defence Closing Argument, 11 Jan 2007, T. 11325-11327.
234 Ibid.
235 Ibid.
Case No. IT-95-11-T 43 12 June 2007
124. The Trial Chamber will discuss JCE as a mode of liability later in the judgement.236
However, as the Defence has effectively raised a jurisdictional challenge in relation to the
application of JCE to the instant case, the Trial Chamber considers it necessary to deal with the
Defence submission in the present section.
125. The principle of individual criminal responsibility is laid down in Article 7(1) of the Statute,
which provides as follows:
A person who planned, instigated, ordered, committed or otherwise aided and abetted in the
planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute,
shall be individually responsible for the crime.
126. The Appeals Chamber found that the Statute does not confine itself to providing for
jurisdiction over those persons who plan, instigate, order, physically perpetrate a crime or otherwise
aid and abet in its planning, preparation or execution.237 This is established jurisprudence. In other
words, the Statute does not exclude other modes of liability such as JCE, which are based in
customary international law. After reviewing relevant treaties and national legislation, as well as
several post-World War II war-crimes cases, the Appeals Chamber held that JCE existed as a mode
of individual criminal responsibility in customary international law at the time of the events in the
former Yugoslavia.238 The Appeals Chamber therefore found that JCE is a form of “commission”
under Article 7(1) of the Statute for which the Tribunal has jurisdiction ratione personae. The
Defence argument is therefore dismissed.
III. FACTUAL FINDINGS
A. Background
127. In April and May 1990, multi-party elections were held in the Socialist Republic of
Croatia.239 The Croatian Democratic Union (“HDZ”) won 41.5% of the votes and two-thirds of the
seats in the Parliament.240 On 30 May 1990, the HDZ candidate Franjo Tu|man was elected
President of the Presidency of the Socialist Republic of Croatia.241 As a result of the elections, the
236 See infra Section IV, B 1.
237 Tadi Appeal Judgement, para. 190.
238 Tadi Appeal Judgement, para. 226. See also Br|anin Appeal Judgement, paras 363-365.
239 Ex. 820, Agreed Facts, para. 3. See also Veljko D‘akula, 16 Jan 2006, T. 344; Milan Babi}, 3 Mar 2006, T. 1852;
Vlado Vukovi}, 27 Mar 2006, T. 2681; Witness MM-036, 4 Apr 2006, T. 3198; Ratko Liina, 14 Aug 2006, T. 6370.
240 Ex. 820, Agreed Facts, para. 3. See also Milan Babi}, 15 Feb 2006, T. 1358, 21 Feb 2006, T. 1720; Witness MM-
022, 20 Mar 2006, T. 2321; Vlado Vukovi}, 27 Mar 2006, T. 2681; Witness MM-078, 25 May 2006, T. 4481; Witness
MM-096, 18 Aug 2006, T. 6728.
241 Ex. 820, Agreed Facts, para. 3. See also Veljko D‘akula, 17 Jan 2006, T. 453-454; Milan Babi}, 21 Feb 2006, T.
1720.
Case No. IT-95-11-T 44 12 June 2007
Serbian Democratic Party (“SDS”) gained power in the municipalities of Benkovac, Donji Lapac,
Graac, Glina, Korenica, Knin, Obrovac, and Vojni.242
128. On 25 July 1990, a Serbian Assembly was established in Srb, north of Knin, as the political
representation of the Serbian people in Croatia.243 The Serbian Assembly declared sovereignty and
autonomy of the Serb people in Croatia.244 On 31 July 1990, Milan Babi} became president of the
Serbian National Council (“SNC”), the executive body of the Serbian Assembly.245 On 16 August
1990, the SNC called for a referendum on the autonomy of Serbs in Croatia to be held between 19
August and 2 September 1990.246 The following day, 17 August 1990, the Government of Croatia
declared the referendum illegal. The Croatian police moved towards several Serb-majority towns in
the Krajina region and removed weaponry from the SJBs.247 Serbs responded by putting up
barricades in Knin and surroundings.248 The referendum was held between 19 August and 2
September 1990: 97.7% voted in favour of autonomy.249
B. The SAO Krajina
1. Development of the SAO Krajina
129. On 21 December 1990, the SAO Krajina was proclaimed by the municipalities of the
regions of Northern Dalmatia and Lika, in south-western Croatia.250 Article 1 of the Statute of the
SAO Krajina defined the SAO Krajina as “a form of territorial autonomy within the Republic of
Croatia” on which the Constitution of the Republic of Croatia, state laws and the Statute of the SAO
Krajina were applied.251
242 Veljko D‘akula, 16 Jan 2006, T. 344; Milan Babi, 15 Feb 2006, T. 1359; Witness MM-037, 28 Mar 2006, T. 2767-
2668; Ratko Liina, 14 Aug 2006, T. 6381-6382, 6403-6404; Branko Popovi}, 8 Sep 2006, T. 7996-7997. The SDS’
aims and goals included “creating conditions for the full self-confirmation of the spiritual and cultural identity of each
Yugoslav people by itself, independently of which federal unit it belonged to; ensuring constitutional possibility for
establishing territorial autonomies inside the federal units, if the population on the territories with a special ethnic
composition or cultural and historical identity decides so on a referendum”, Ex. 138. See also Veljko D‘akula, 16 Jan
2006, T. 344; Ratko Liina, 14 Aug 2006, T. 6371; Ex. 23, pp 20, 24-25.
243 Ex. 820, Agreed Facts, para. 4. See also Ex. 23, p. 25.
244 Ex. 820, Agreed Facts, para. 4. See also Veljko D‘akula, 16 Jan 2006, T. 385, 18 Jan 2006, T. 507; Milan Babi}, 21
Feb 2006, T. 1743-1744; Ratko Liina, 15 Aug 2006, T. 6497, 17 Aug 2006, T. 6693-6696; Lazar Macura, 13 Sep
2006, T. 8272; Ex. 141.
245 Milan Babi, 15 Feb 2006, T. 1327.
246 Ex. 820, Agreed Facts, para. 5. See also Ex. 179.
247 Witness MM-096, 18 Aug 2006, T. 6755, 6761-6762, 6769. See also Ex. 22; Ex. 23.
248 This is also referred to as the “Log Revolution”, Ex. 820, Agreed Facts, para. 6. See also Ex. 496, p. 6; Ex. 497;
Witness MM-003, 8 Mar 2006, T. 1968-1969; Witness MM-078, 25 May 2006, T. 4475; Ratko Liina, 14 Aug 2006, T.
6397, 6400; Witness MM-096, 18 Aug 2006, T. 6777-6778.
249 Ex. 820, Agreed Facts, para. 7. See also Veljko D‘akula, 18 Jan 2006, T. 508; Milan Babi}, 21 Feb 2006, T. 1746-
1747, 2 Mar 2006, T. 1771; Ex. 142.
250 Ex. 820, Agreed Facts, para. 9. See also Milan Babi, 21 Feb 2006, T. 1747; Ex. 143.
251 Ex. 820, Agreed Facts, para. 9. See also Milan Babi, 21 Feb 2006, T. 1747-1748. Art 4 of the Statute provided that
“the Serbian Autonomous District of Krajina shall have territory that is comprised of territories of the present Union
of Municipalities of Northern Dalamatia and Lika, territories of municipalities with majority Serbian populations which
Case No. IT-95-11-T 45 12 June 2007
130. On 22 December 1990, the Parliament of Croatia adopted a new constitution, wherein
Croatia was defined as “the national state of the Croatian nation and a state of members of other
nations and minorities who are citizens: Serbs … who are guaranteed equality with citizens of
Croatian nationality …”.252 The Serb population in the Krajina region considered that by the
adoption of the new constitution, they had been deprived of the right to be a constituent nation in
Croatia, which would include the right of self-determination.253
131. On 4 January 1991, the Executive Council of the SAO Krajina established the Regional
Secretariat for Internal Affairs (“SUP”) in Knin.254 On the same date, Milan Marti} was appointed
the Secretary for Internal Affairs of the SAO Krajina.255 On 5 January 1991, the Executive Council
informed the MUP of Croatia that the establishment of the SUP revoked the authority of the MUP
of Croatia in the SAO Krajina territory.256
132. In March 1991, there were armed clashes in Pakrac in Western Slavonia and in Plitvice
between Titova Korenica and Saborsko between Croatian MUP special police forces and the police
of the SAO Krajina. In both of these clashes, the JNA intervened to separate the two sides.257
133. On 1 April 1991, Milan Babi} as President of the Executive Council of the SAO Krajina
ordered mobilisation of the TO and volunteer units of the SAO Krajina.258 However, the evidence
shows that between January and August 1991 the municipal TO staffs and units only existed on
paper.259 In the same order, Milan Babi requested the MUP of Serbia to provide technical and
adopt decisions to joint the Serbian Autonomous District of Krajina, and settlements in which Serbian people comprise
the majority of the population and which have voted at a referendum in favour of joining one of the existing or newly
established municipalities with a majority Serbian population”, Ex. 143.
252 Ex. 910, p. 9; Veljko D‘akula, 18 Jan 2006, T. 513.
253 Ratko Liina, 14 Aug 2006, T. 6386, 16 Aug 2006, T. 6542-6543; Witness MM-090, 1 Sep 2006, T. 7563-7573.
254 Ex. 183. The SUP in Knin included SJBs of Obrovac, Benkovac, Knin, Graac, Titova Korenica, Donji Lapac, Dvor
na Uni, Glina, Kostajnica, Vojni}, ibid.; Witness MM-096, 21 Aug 2006, T. 6829, 6831-6832. See also Ex. 182; Ex.
181; Reynaud Theunens, 26 Jan 2006, T. 686-687; Ex. 1042, Tab 2; Ex. 1043, Tab 2, DVD 3, pp 10-16; Ex. 1044.
255 Ex. 820, Agreed Facts, para. 10. See also Milan Babi}, 15 Feb 2006, T. 1397-1398, 1406, 2 Mar 2006, T. 1800;
Reynaud Theunens, 3 Feb 2006, T. 1013; Ex. 33.
256 Ex. 183. See also Ex. 485, Decree on Internal Organisation and Operation of the Ministry of the Interior, providing
that there were two services within the MUP, the Public Security Service and the State Security Service (Art. 7), and
that in the event of a state of war or imminent threat of war “special police units” would be formed (Art. 6a).
257 Veljko Džakula, 18 Jan 2006, T. 516-517; Milan Babi, 17 Feb 2006, T. 1506-1507, 1510-1513, (also testifying that
a Croat and a Serb policeman were killed), 20 Feb 2006, T. 1600; Marko Vukovi, 24 Mar 2006, T. 2571; Vlado
Vukovi, 27 Mar 2006, T. 2651, 2686-2688, 28 Mar 2006, T. 2722, 2729; Witness MM-037, 28 Mar 2006, T. 2758; Ex.
268, T. 11621; Slobodan Peri}, 7 Sep 2006, T. 7908-7910; Lazar Macura, 12 Sep 2006, T. 8208; Stevo Plejo, 20 Sep
2006, T. 8676-8677; Nikola Medakovi, 9 Oct 2006, T. 8957-8958; Ex. 476, p. 251.
258 Ex. 29. In the SFRY, the TO was organised, funded and equipped on the level of the Republics of the SFRY,
Reynaud Theunens, 26 Jan 2006, T. 656; Ex. 6, p. 6. See also Ex. 147.
259 Milan Babi, 15 Feb 2006, T. 1393-1395, testifying that the only armed units of the SAO Krajina during this time
period were the Milicija Krajine and volunteer units, see also Radoslav Maksi}, 6 Feb 2006, T. 1154-1155, 1171. Ex.
30 providing (p. 1) that the Benkovac municipality TO staff, following a decision by the SAO Krajina Government of
15 July 1991, began “forming and arming the TO units of Benkovac Municipality on 17 July 1991”. It is also stated (p.
1) that “the most difficult problem during the beginning of the formation of TO units was that there was a very small
quantity of weapons available.”
Case No. IT-95-11-T 46 12 June 2007
personnel support to the SUP of the SAO Krajina.260 Also on 1 April 1991, the Executive Council
of the SAO Krajina passed a decision joining the SAO Krajina to Serbia, wherein it was stipulated
that the constitution and laws of Serbia, as well as the constitutional-legal system of the SFRY,
were to apply in the SAO Krajina.261 It was also decided that a referendum was to be held on the
question: “are you in favour of the annexation of the SAO Krajina to the Republic of Serbia on the
30th of April?”262 The President of Serbia, Slobodan Milo{evi}, publicly opposed the referendum on
joining the SAO Krajina with Serbia, stating that the ballot would have to read instead “in favour of
remaining in Yugoslavia”; moreover, he asked that the decision on the annexation of the SAO
Krajina to Serbia, be withdrawn.263
134. On 12 May 1991, after the intervention of Slobodan Miloševi, the referendum was held on
the following question: “are you in favour of the SAO Krajina joining the Republic of Serbia and
staying in Yugoslavia with Serbia, Montenegro and others who wish to preserve Yugoslavia?” with
99.8% voting in favour.264 On 16 May 1991, the Assembly of the SAO Krajina approved the
outcome of the referendum and stated that “the territory of the SAO Krajina is a constitutive part of
the unified state territory of the Republic of Serbia”.265 Both Milan Babi} and Milan Marti
publicly expressed views that SAO Krajina belonged with Serbia.266 On 19 May 1991, a
referendum was held in Croatia, except in predominantly Serb areas, concerning independence of
Croatia from Yugoslavia. 94.1% of those voting came out in favour of independence.267
135. On 29 May 1991, the SAO Krajina government was established with Milan Babi as
President.268 Milan Babi appointed Milan Marti as Minister of Defence.269 On the same day, the
Assembly of the SAO Krajina established “special purpose police units” named Milicija Krajine, in
addition to the previously established Public Security Service police and State Security Service
police.270 The Milicija Krajine was established within the MUP, but was put under the authority of
260 Ex. 29.
261 Ex. 820, Agreed Facts, para. 11. See also Milan Babi}, 16 Feb 2006, T. 1511; Ex. 144; Ex. 145.
262 Milan Babi}, 2 Mar 2006, T. 1824, 1830-1832; Ex. 148.
263 Ex. 235. See also Ex. 201, p. 3; Mile Daki, 25 Oct 2006, T. 10025-10026; Milan Babi, 16 Feb 2006, T. 1476-1477,
2 Mar 2006, T. 1830-1831; Lazar Macura, 14 Sep 2006, T. 8326.
264 Ex. 820, Agreed Facts, para. 13. See also Milan Babi}, 2 Mar 2006, T. 1830; Ex. 146; Ex. 148; Ex. 234.
265 Ex. 613, Art. 3, p. 45. See also Ex. 149. Following this decision, an SAO Krajina delegation went to Belgrade to
present the results of the referendum as well as the request on the annexation of the SAO Krajina to Serbia, however the
delegation was not received by the Serbian Assembly, Lazar Macura, 12 Sep 2006, T. 8201-8203. See also Ljubica
Vujani, 15 Sep 2006, T. 8479-8480, 18 Sep 2006, T. 8535-8538; Ex. 956.
266 Ex. 973; Ex. 955, pp 3-4. See also Witness MM-105, 1 Nov 2006, T. 10496-10497. On 29 May 1991, the Assembly
of the SAO Krajina passed the Constitutional Law of the SAO Krajina which defined the SAO Krajina as part of the
federative Yugoslavia, Ex. 820, Agreed Facts, para. 13.
267 Ex. 820, Agreed Facts, para. 14. See also Ex. 1019, p. 5.
268 Milan Babi}, 15 Feb 2006, T. 1328.
269 Milan Babi}, 15 Feb 2006, T. 1405-1407. See also Ex. 154.
270 Ex. 820, Agreed Facts, para. 15. See also Ex. 485. The Public Security Service was responsible for maintaining law
and order. The SDB handled political crime, terrorism, extremism, and intelligence work. The Milicija Krajine units
Case No. IT-95-11-T 47 12 June 2007
the Ministry of Defence.271 The Milicija Krajine units wore patches on the sleeves of their uniforms
reading in Cyrillic “Milicija Krajine”.272 On 27 June 1991, Milan Marti was appointed Minister of
Interior.273 According to Milan Babi}, on this day Milan Marti withdrew from his position as
Minister of Defence.274
136. On 25 June 1991, Croatia and Slovenia declared independence from Yugoslavia.275
However, on 8 July 1991, an international agreement was reached that Croatia and Slovenia would
suspend implementation of their independence until 8 October 1991.276
137. On 1 August 1991, the SAO Krajina government decided to apply the Law on Defence of
Serbia in the SAO Krajina. Accordingly, the Milicija Krajine units together with the TO made up
the armed forces of the SAO Krajina.277 The evidence shows that the TO used JNA solid-colour
uniforms with patches reading “SAO Krajina” in Cyrillic, on the sleeve.278 Milan Babi, as
President, was the Commander of the TO of the SAO Krajina.279 On 8 August 1991, Milan Marti
was appointed Deputy Commander of the TO of the SAO Krajina, in which position he remained
defended the territorial integrity of the SAO Krajina, secured vital facilities, infiltrated sabotage groups, and could
also be used in military operations, Radoslav Maksi}, 6 Feb 2006, T. 1169-1170; Witness MM-079, 31 Mar 2006, T.
3030-3031; Nikola Medakovi}, 10 Oct 2006, T. 9054; Witness MM-117, 18 Oct 2006, T. 9674; Ex. 32.
271 Ex. 820, Agreed Facts, para. 15. The Trial Chamber notes the evidence that a clash occurred between Milan Babi
and Milan Marti as a result of the former’s decision to appoint Dušan Vještika as Minister of Interior, and that
according to Milan Babi, Milan Marti only accepted the appointment as Minister of Defence on condition that he
“could still maintain his control over the special police units which were being trained at Golubi}”, Milan Babi, 15 Feb
2006, T. 1406, 1408; Ex. 44; Ex. 544; Ex. 1028, Group 2, p. 13. See also Ex. 485, Art. 6b, according to which the
“leader” of the future Milicija Krajine Service would be accountable to the Minister of the Interior.
272 Vlado Vukovi}, 27 Mar 2006, T. 2701-2703; Nikola Medakovi}, 10 Oct 2006, T. 9052; Ex. 266.
273 Ex. 820, Agreed Facts, para. 16. See also Milan Babi}, 15 Feb 2006, T. 1408, 2 Mar 2006, T. 1803-1804; Ex. 34.
With the establishment of the government in May 1991, the SUP of the SAO Krajina was changed into the MUP of the
SAO Krajina, Milan Babi}, 15 Feb 2006, T. 1406-1407; Ex. 44. On 1 August 1991, a decision was reached about the
application of the law on internal affairs of the Republic of Serbia on the territory of Krajina, Milan Babi}, 15 Feb 2006,
T. 1403-1404.
274 Milan Babi}, 15 Feb 2006, T. 1407. The Trial Chamber notes that while Ex. 582, dated 23 July 1991 and Ex. 215,
dated 19 August 1991, refer to Milan Marti} as Minister of Defence, it however accepts the evidence of Milan Babi.
275 Ex. 820, Agreed Facts, para. 14.
276 Ex. 820, Agreed Facts, para. 17. See also Milan Babi}, 2 Mar 2006, T. 1836, 3 March 2006, T. 1882, 1887, 1923.
277 Ex. 31, Art. 5.
278 Witness MM-037, 28 Mar 2006, T. 2787-2788, 29 Mar 2006, T. 2813; Ex. 188. Regarding JNA uniforms, see infra
fn 283.
279 Ex. 31, Art. 6. The Trial Chamber notes that the Milicija Krajine is not mentioned in this provision, Milan Babi, 16
Feb 2006, T. 1422-1424. See also Ex. 189; Radoslav Maksi, 6 Feb 2006, T. 1154.
Case No. IT-95-11-T 48 12 June 2007
until 30 September 1991.280 He continued to hold the position of Minister of the Interior while he
was Deputy Commander of the TO.281
138. As will be discussed below, there were several ongoing clashes between Croatian armed
forces and formations and the forces of the SAO Krajina from the spring of 1991, including in
Kijevo, Drniš, Hrvatska Dubica, Saborsko, and Škabrnja.282 During the second half of 1991, there
were numerous cease-fire agreements and agreements on the withdrawal of the JNA from
Croatia.283 On 23 November, the Vance Plan was signed by the President of Croatia Franjo
Tu|man, the President of Serbia Slobodan Milo{evi} and the SFRY Federal Secretary for Defence
General Veljko Kadijevi}.284 The Vance Plan made provision for the deployment of a United
Nations Protection Force (“UNPROFOR”) in the Krajina, Western Slavonia and Eastern Slavonia,
for demilitarisation, and eventual return of refugees and displaced persons.285 Importantly, the
Vance Plan stated that “the role of the United Nations troops would be to ensure that the areas
remained demilitarised and that all persons residing in them were protected from fear of armed
attack.”286
139. On 30 November 1991, the SAO Krajina adopted its own Law on Defence, whereby the
Law on Defence of Serbia ceased to apply in the SAO Krajina.287 According to the new law, the TO
280 Ex. 820, Agreed Facts, para. 19. See also Milan Babi, 15 Feb 2006, T. 1395-1396, 16 Feb 2006, T. 1435-1437,
testifying that in early August 1991 Slobodan Miloševi requested him to appoint Milan Marti as Commander of the
TO, however he refused to do this because Milan Marti “was not qualified to hold that position, that this was
something that a general of the army should do”, and that Milan Marti was instead appointed Deputy Commander of
the TO to prevent him from becoming “independent of the government”; Radoslav Maksi}, an officer in the SAO
Krajina TO and subsequently TO Commander, testifying that he had numerous meetings with Milan Babi} as Supreme
Commander and only rarely with Milan Marti}, Radoslav Maksi}, 7 Feb 2006, T. 1230-1231; Reynaud Theunens, 6 Feb
2006, T. 1128-1129; Ex. 37.
281 Milan Babi}, 15 Feb 2006, T. 1395-1396, 16 Feb 2006, T. 1436. See also Ex. 121; Reynaud Theunens, 6 Feb 2006,
T. 1128-1129.
282 See infra paras 161-171, 173-175, 220-224, 236-243.
283 These cease-fire agreements included the Brioni Moratorium, Ex. 820, Agreed Facts, para. 17. See also Veljko
Džakula, 18 Jan 2006, T. 527-528; Milan Babi}, 2 Mar 2006, T. 1834-1835, 3 Mar 2006, T. 1871-1872; the Carrington
Plan, Milan Babi}, 20 Feb 2006, T. 1614-1615, 1634-1635; Lazar Macura, 14 Sep 2006, T. 8328. On 8 October 1991,
the JNA and the Croatian armed forces signed an agreement, under the auspices of the European Community,
concerning the withdrawal of JNA units from Croatia, Ex. 240; Milan Babi}, 3 March 2006, T. 1922-1923. In the
SFRY, JNA was a federal institution, Reynaud Theunens, 26 Jan 2006, T. 656; Ex. 6, p. 6. The evidence shows that
JNA soldiers wore solid-colour uniforms, which witnesses described as olive-grey or olive-green in colour. The
evidence also shows that from 1992 or 1993 camouflage uniforms were introduced for JNA units. The caps had a fivepointed
star and the officers had shoulder patches to denote rank, Vlado Vukovi}, 27 Mar 2006, T. 2706; Lazar Macura,
15 Sep 2006, T. 8401, 8405.
284 Ex. 820, Agreed Facts, para. 22. See also Milan Babi}, 20 Feb 2006, T. 1639, 3 March 2006, T. 1914, 1923-1924;
Lazar Macura, 14 Sep 2006, T. 8329; Ex. 948.
285 Veljko D‘akula, 16 Jan 2006, T. 406-407; Milan Babi}, 20 Feb 2006, T. 1635; Charles Kirudja, 30 May 2006, T.
4787-4788, 1 Jun 2006, T. 4901-4902; Lazar Macura, 13 Sep 2006, T. 8225-8231, 14 Sep 2006, T. 8337; Ex. 115; Ex.
478, p. 1. A cease-fire agreement was subsequently signed on 2 January 1992, Ex. 820, Agreed Facts, para. 24. See also
Veljko D‘akula, 18 Jan 2006, T. 559; Charles Kirudja, 31 May 2006, T. 4888; Slobodan Jar~evi}, 13 Jul 2006, T. 6196-
6197; Ex. 766.
286 Ex. 115, paras 7, 10-11.
287 Ex. 36.
Case No. IT-95-11-T 49 12 June 2007
was “part of the unified armed forces of the SFRY” and the President of the SAO Krajina led “the
armed forces in times of peace and in times of war.”288
2. Support provided to the SAO Krajina
140. As early as August 1990 and through the summer of 1991, officials of the MUP of Serbia,
including the Chief of the SDB, Jovica Stani{i}, and an official thereof, Franko “Frenki” Simatovi,
met with the SAO Krajina leadership, in particular with Milan Marti, concerning the provision of
financial, logistical and military assistance.289 From January 1991, Milan Marti went on occasion
to Belgrade to meet with these officials and with Radmilo Bogdanovi, the Minister of the Interior
of Serbia, concerning the provision of support to the SAO Krajina.290
141. The SAO Krajina budget was very small as a result of Croatia having ceased to provide
budget allocations to Serb municipalities in May 1991.291 The SAO Krajina government, including
Milan Marti}, sent requests to the government of Serbia for military assistance and the evidence
shows that these requests were frequently met.292 The police of the SAO Krajina were mainly
288 Ex. 36, Articles 6 and 31.
289 Milan Babi, 17 Feb 2006, T. 1524-1526; Witness MM-003, 8 Mar 2006, T. 1987-1988, 1991-1992. See also
Radoslav Maksi}, 6 Feb 2006, T. 1179-1180.
290 Milan Babi, 17 Feb 2006, T. 1525; Witness MM-003, 8 Mar 2006, T. 1994-1995; 10 Mar 2006, T. 2134. See also
Milan Babi}, 15 Feb 2006, T. 1392, 16 Feb 2006, T. 1426-1427; Witness MM-079, 3 Apr 2006, T. 3061; Rade Rašeta,
2 May 2006, T. 3921-3924; Witness MM-018, 9 Jun 2006, T. 5354; Ex. 460; Ex. 619. Milan Babi} testified that on
Slobodan Milo{evi}’s recommendation he met the Ministry of Defence of Serbia to discuss the need to finance and
equip the TO “a couple of times” in September of 1991 and in November 1991 in Belgrade, Milan Babi, 16 Feb 2006,
T. 1461-1462, 1464. On 1 August 1991, Milan Babi}, as President of the SAO Krajina, abolished the SDB of the SAO
Krajina, and thereby the SDB of Serbia, on the territory of the SAO Krajina. Milan Babi testified that this was done in
order to establish government control over Ministry of Defence of the SAO Krajina. However, the decision was
ultimately unsuccessful, which Milan Babi claimed was due to the close ties between the SDB of Serbia and the MUP
of the SAO Krajina, Ex. 187; Milan Babi}, 16 Feb 2006, T. 1417, 1420 onwards, 2 Mar 2006, T. 1802; Ex. 523
(confirming that the SDB of Serbia was still active and operating in the SAO Krajina in November 1991). See also
Witness MM-079, 3 Apr 2006, T. 3078-3079. Milan Babi} also testified that he asked Slobodan Milo{evi} to remove
Franko Simatovi from the SAO Krajina, which eventually happened, however by the time of the attack on Lovinac,
Franko Simatovi had returned, Milan Babi, 16 Feb 2006, T. 1431. Furthermore, Milan Babi testified that Milan
Marti was controlled by the SDB of Serbia and by Slobodan Milo{evi} to such an extent that a “parallel structure” was
created to the SAO Krajina government and authorities. According to Milan Babi, this parallel structure included the
Minister of the Interior of Serbia, Radmilo Bogdanovi}, officials of the SDB of Serbia, in particular Jovica Stani{i},
Franko Simatovi}, and Captain Dragan Vasiljkovi}, and some representatives of the SDS and of the police in the Serb
municipalities in the Krajina, Milan Babi}, 15 Feb 2006, T. 1390-1393, 20 Feb 2006, T. 1601-1602. The Trial Chamber
notes that Milan Babi characterised Milan Marti as “the most powerful man within the parallel structure in the SAO
Krajina” and that he was unable to give orders to Milan Marti, Milan Babi}, 15 Feb 2006, T. 1390-1392; Ex. 1037,
Group 11, pp 4-6 where Milan Babi} defines himself as a “spokesman” of the people in Krajina who was incapable of
ordering Milan Marti}. Contrary to this, Mile Daki}, testified that Milan Marti “was a clerk, an administrator in the
SAO government who was far below Milan Babi}.” Mile Daki recognised that Milan Marti} “may have out-topped
Babi} in terms of popularity, the press coverage he received and so on and so forth. However, Milan Babi} was the
political figure at the head of the SAO Krajina leadership”, Mile Daki}, 25 Oct 2006, T. 10021-10022.
291 Milan Babi, 16 Feb 2006, T. 1454-1455, testifying that also the SAO Krajina ceased payments to Croatia, T. 1458-
1459; Witness MM-003, 9 Mar 2006, T. 2086-2087.
292 Milan Babi}, 16 Feb 2006, T. 1460; Radoslav Maksi}, 7 Feb 2006, T. 1243-1244; Ex. 41; Ex. 129; Ex. 190; Ex. 193.
See also Ex. 204; Milan Dragi{i}, 19 Sep 2006, T. 8644, testifying that Milan Babi desired to create a Serb army of the
SAO Krajina, something which Milan Marti opposed, instead advocating cooperation with the JNA.
Case No. IT-95-11-T 50 12 June 2007
financed with funds and material from the MUP and SDB of Serbia.293 Moreover, there is evidence
that weapons were sent from Serbia by Radmilo Bogdanovi via Bosanski Novi, BiH, to the SAO
Krajina.294 Beginning at the end of April 1991, Dušan Smiljani}, Chief of Security of the JNA 10th
Zagreb Corps, made contact with leading figures in the SDS in the SAO Krajina and provided large
amounts of infantry and artillery weapons to Serbs in Krajina from JNA depots.295
142. The SFRY Federal Secretariat of National Defence of the JNA (“SSNO”) made unit and
personnel changes within the SAO Krajina armed forces.296 There is evidence that beginning after
the summer of 1991, the SAO Krajina TO was subordinate to the JNA.297 There is also evidence of
operational cooperation between the JNA and the armed forces of the SAO Krajina. Any
resubordination of MUP units to the JNA for temporary assignment required prior approval of the
Minister of Interior of the SAO Krajina.298 When resubordinated, the MUP unit would be under the
command of the JNA unit commander. However, if the MUP unit was merely acting in cooperation
or concert with the JNA unit, it would remain under the command of the MUP commander.299 After
293 Milan Babi, 16 Feb 2006, T. 1458-1460; Radoslav Maksi, 6 Feb 2006, T. 1179-1180; Witness MM-003, 8 Mar
2006, T. 1982-1984, 1987-1988, 9 Mar 2006, T. 2086-2087; Lazar Macura, 14 Sep 2006, T. 8339; Ex. 213. The Krajina
was a poor area with few indigenous resources and it was dependent on the life-line that came through BiH from Serbia,
Peter Galbraith, 25 Apr 2006, T. 3756. See also Ex. 498.
294 Milan Babi, 17 Feb 2006, T. 1527, 1575. See also Milan Babi, 17 Feb 2006, T. 1544-1545, 20 Feb 2006, T. 1603.
Ex. 476, p. 283, wherein Borisav Jovi, a member of the SFRY Presidency, describes a meeting with Slobodan
Miloševi, Veljko Kadijevi and Blagoje Adži on 5 April 1991 and stating that the “Serb nation in Croatia” had not
armed itself but was counting on protection by the JNA.
295 Ex. 206. Milan Babi testified to meeting with Dušan Smiljani during the summer of 1991, Milan Babi, 17 Feb
2006, T. 1531-1532. See also Ex. 24, p. 77, wherein Veljko Kadijevi} stated that “the future army of the Serbian
Krajina was actually built up in the course of fighting, and equipped by the JNA with corresponding arms and
material”; Ex. 857, p. 5, wherein Željko “Arkan” Raznjatovi stated that he provided weapons and money to “Knin”.
296 Witness MM-037, 28 Mar 2006, T. 2782-2783, 29 Mar 2006, T. 2823-2825, Ex. 268, T. 11579-11580; Ex. 120; Ex.
122; Ex. 124.
297 Nikola Medakovi}, 9 Oct 2006, T. 8991; Borislav Ðukic, 19 Oct 2006, T. 9771-9772; Ex. 26. Milan Babi
encountered resistance from the JNA concerning the appointments to TO positions which he made during the spring
and summer of 1991. However, the resistance ceased in September 1991 when Milan Babi began signing appointments
of officers who had been sent from Belgrade. In this respect, the Trial Chamber notes that on 28 November 1991
Radoslav Maksi succeded Ilija Ðuji as TO Commander and that Radoslav Maksi testified that only the SSNO could
appoint him as TO commander, Milan Babi}, 16 Feb 2006, T. 1445-1447, 17 Feb 2006, T. 1568, 20 Feb 2006, T. 1588-
1590; Radoslav Maksi}, 6 Feb 2006, T. 1153-1155, 1186, 7 Feb 2006, T. 1197; Ex. 121; Ex. 128; Ex. 219. The SAO
Krajina TO Staff in Knin was subordinated to the 9th Corps of the JNA, headquartered in Knin. The 9th Corps was
subordinated to the JNA Naval Military District, headquartered in Split. The 9th Corps was composed, inter alia, of the
221st Motorised Brigade, commanded by Borislav Ðuki until April 1992, the 180th Motorised Brigade (headquartered
at the barracks in Benkovac), the 2nd TO Brigade, 1st TO Partisan Brigade, and a military police battalion, Milan Babi},
16 Feb 2006, T. 1448-1449, 17 Feb 2006, T. 1568, 20 Feb 2006, T. 1583, 1593; Radoslav Maksi}, 6 Feb 2006, T. 1153-
1155, 1160-1161, 7 Feb 2006, T. 1254-1255; Witness MM-080, 8 Jun 2006, T. 5245-5246, 5279-5280; Borislav Ðuki,
18 Oct 2006, T. 9684-9686; Ex. 49.
298 Radoslav Maksi}, 6 Feb 2006, T. 1166-1167. The Minister of the Interior and the MUP would be copied on the
resulting order, or at least the parts relating to the MUP units participating in the operation. When resubordinated,
regular police units would normally be employed to secure the implementation of the operation, by securing roads,
buildings or areas from ambushes and sabotage actions. They could also provide personal security. However, in view of
their strength and level of training for combat activities these units could not really participate in combat operations. If
regular police units of a company or higher strength were involved, they could however take part in combat activities
but this happened rarely, Radoslav Maksi}, 6 Feb 2006, T. 1166-1167, 1171-1174. In this respect, the Trial Chamber
recalls the evidence that in August and September 1991, Milan Marti cooperated with the 9th JNA Corps concerning
coordination between JNA and MUP units, Milan Babi, 16 Feb 2006, T. 1445-1446.
299 Radoslav Maksi}, 6 Feb 2006, T. 1173-1174.
Case No. IT-95-11-T 51 12 June 2007
the completion of a mission where it had been resubordinated, the MUP unit would return into the
structure of the MUP.300 For the purpose of combat operations, TO units could also be
resubordinated to JNA units.301 When resubordinating, the largest unit of either the TO or the JNA
would command, which would normally be the JNA unit in a given area. Such resubordination of
TO units would be carried out by the JNA.302
143. In early September 1991, Milan Marti} was arrested and detained for one to two days by the
police in Otoka, close to Bosanska Krupa in BiH, which was a mostly Muslim area.303 The evidence
shows that there was strong coordination between the leaderships of the SAO Krajina, Serbia and
BiH, through Milan Babi, Slobodan Miloševi, Radovan Karad`i}, and Jovica Staniši, in securing
Milan Marti’s release.304
3. Training camp in Golubi and “Marti’s Police”
144. In early 1991, the SUP in Knin established a training camp in Golubi, a small village
located approximately 9 kilometres north of Knin, because Milan Marti} wanted properly trained
police officers.305 There is evidence that this training camp still existed in 1993.306 The training
camp was run and funded by the MUP of the SAO Krajina and by the MUP and SDB of Serbia.307
Furthermore, there is evidence that Milan Marti visited the camp.308 Captain Dragan Vasiljkovi
300 Radoslav Maksi}, 7 Feb 2006, T. 1188.
301 Witness MM-080, 8 Jun 2006, T. 5303.
302 Radoslav Maksi}, 6 Feb 2006, T. 1160-1161, 1167, 7 Feb 2006, T. 1262, also testifying that if a MUP unit was the
largest unit in an operation then any participating TO units would be resubordinated to the MUP unit. Ex. 47 gives an
example of a JNA platoon of T-34 tanks, which was resubordinated to the 1st TO Brigade (p. 2). See also Reynaud
Theunens, 26 Jan 2006, T. 718; Ex. 130.
303 Milan Babi}, 16 Feb 2006, T. 1441-1442, 20 Feb 2006, T. 1616-1618; Ex. 206.
304 Ex. 223; Ex. 224; Ex. 225; Ex. 226; Ex. 227.
305 Milan Babi}, 16 Feb 2006, T. 1426-1427, 17 Feb 2006, T. 1539-1541, 1543-1544; Witness MM-003, 8 Mar 2006, T.
1999-2000, 2002, 10 Mar 2006, T. 2149-2150, 2195-2196; Ex. 268, T. 11569-11570, 11572; Witness MM-078, 24 May
2006, T. 4435-4437, 25 May 2006, T. 4538-4539; Witness MM-096, 22 Aug 2006, T. 6948, 23 Aug 2006, T. 6955, 25
Aug 2006, T. 7194; Witness MM-090, 4 Sep 2006, T. 7636; Lazar Macura, 14 Sep 2006, T. 8318; Stevo Plejo, 20 Sep
2006, T. 8692-8694, 8705; Nikola Medakovi}, 9 Oct 2006, T. 8965-8966, 10 Oct 2006, T. 9051, 9054; Borislav Ðuki},
20 Oct 2006, T. 9815-9816, 23 Oct 2006, T. 9946, 9949; Dragan Kneževi}, 3 Nov 2006, T. 10698-10699; Ex. 244; Ex.
464; Ex. 619; Ex. 623; Ex. 627; Ex. 674; Ex. 675. See also Witness MM-037, 28 Mar 2006, T. 2804; Ex. 1042, Tab 2;
Ex. 1043, Tab 2, DVD 4, pp 19-27; Ex. 1044.
306 Dragan Kneževi}, 3 Nov 2006, T. 10723; Ex. 674; Ex. 675. There is also evidence that training camps were
established in [amarica, Bru{ka and Korenica and that the SDB of Serbia was involved in the training in Bruška and
Korenica, Milan Babi}, 17 Feb 2006, T. 1541-1542, 1546-1547; Witness MM-003, 8 Mar 2006, T. 2002-2003, 10 Mar
2006, T. 2205; Ante Marinovi}, 23 Mar 2006, T. 2510; Rade Ra{eta, 2 May 2006, T. 3922; Witness MM-078, 24 May
2006, T. 4435-4436; Ex. 565; Ex. 567; Ex. 568; Ex. 613, p. 25 (ERN 02011443).
307 Milan Babi}, 16 Feb 2006, T. 1459, 17 Feb 2006, T. 1539-1543 (testifying that Milan Marti’s assistant “was in
charge of the administration of the camp” and “was overseeing the whole camp”), 2 Mar 2006, T. 1822; Witness MM-
003, 8 Mar 2006, T. 1999, 2001-2004, 9 Mar 2006, T. 2086; Witness MM-079, 31 Mar 2006, T. 3050; Witness MM-
078, 24 May 2006, T. 4436-4438; Lazar Macura, 14 Sep 2006, T. 8327-8328; Borislav Ðuki}, 23 Oct 2006, T. 9949-
9950. See also Witness MM-078, 25 May 2006, T. 4539, 4547-4548; Ex. 244; Ex. 620; Ex. 621; Ex. 622; Ex. 623; Ex.
624; Ex. 677.
308 Witness MM-078, 24 May 2006, T. 4436-4437, 25 May 2006, T. 4547-4548.
Case No. IT-95-11-T 52 12 June 2007
from the SDB of Serbia trained special purpose units at the Golubi camp and was paid for this
service by the SDB of Serbia.309
145. The training in Golubi included: drill practice, ambush training, ideological training geared
towards loyalty to the state, not political parties, weapons training (including artillery training,
mining training, sniper shooting and target practice), physical exercise, training in the securing of
persons, self-protection and abseiling.310 On average the training lasted for approximately 20
days.311 Some witnesses testified that the training was classical police training,312 whereas other
witnesses testified that the training was of a military nature.313 Based on the elements of the training
described above, the Trial Chamber finds that the training in Golubi was predominantly military in
character.
146. The trainees wore blue camouflage uniforms, which were different from ordinary police
uniforms.314 There is evidence that some trainees wore a patch on their sleeve, which was semicircular
with the words Milicija Krajine and the Serbian tricolour.315 The training groups consisted
of between 40 and 100 trainees per group.316 The men who had trained at Golubi} set up further
units and trained people in their municipalities.317
147. There is evidence of groups referred to as “Marti’s Police” and “Marti’s Men
(Martievci)” who were active in the territory of the SAO Krajina and the RSK during the
Indictment period. Some witnesses testified that the term Marti}’s Police or Marti}’s men
(Marti}evci) referred to all those who had completed the training at the Golubi} camp and were
309 Witness MM-003, 10 Mar 2006, T. 2209-2210; Milan Babi, 16 Feb 2006, T. 1427, 1429-1430, 17 Feb 2006, T.
1543; Ex. 478, p. 2; Ex. 626.
310 Milan Babi}, 17 Feb 2006, T. 1541-1544, 2 Mar 2006, T. 1822; Witness MM-003, 8 Mar 2006, T. 2002-2005;
Witness MM-078,24 May 2006, T. 4412, 25 May 2006, T. 4539; Stevo Plejo, 20 Sep 2006, T. 8693-8695, 21 Sep 2006,
T. 8782; Nikola Medakovi}, 9 Oct 2006, T. 8968-8969, 10 Oct 2006, T. 9074-9075, 12 Oct 2006, T. 9281, 9284, 9286;
Borislav Ðuki}, 20 Oct 2006, T. 9815-9816; Dragan Kneževi}, 03 Nov 2006, T. 10699-10700; Ex. 622.
311 Stevo Plejo, 20 Sep 2006, T. 8693-8695; Nikola Medakovi}, 9 Oct 2006, T. 8968; Borislav Ðuki}, 23 Oct 2006, T.
9946; Dragan Kneževi}, 3 Nov 2006, T. 10698; Ex. 620.
312 Stevo Plejo, 20 Sep 2006, T. 8694. See also Witness MM-078, 25 May 2006, T. 4506; Dragan Kneževi}, 3 Nov
2006, T. 10703.
313 Witness MM-003, 9 Mar 2006, T. 2100; Witness MM-096, 25 Aug 2006, T. 7196. See also Milan Babi}, 15 Feb
2006, T. 1382, 2 Mar 2006, T. 1769-1770.
314 Dragan Kneževi}, 3 Nov 2006, T. 10723-10724.
315 Nikola Medakovi}, 9 Oct 2006, T. 8969, 10 Oct 2006, T. 9052-9053, 12 Oct 2006, T. 9289; Ex. 266, Milicija
Krajine patch. Dragan Kneževi} testified that the only emblems the trainees had was the Yugoslav tricolour on the
beret, Dragan Kneževi}, 3 Nov 2006, T. 10724.
316 Borislav Ðuki}, 20 Oct 2006, T. 9817. See also Witness MM-003, 10 Mar 2006, T. 2195; Stevo Plejo, 20 Sep 2006,
T. 8694, 8696-8697; Ex. 625, selection of JNA operative intelligence reports, p. 1, mentioning that 150 people were
being trained at Golubi} before 12 May 1991; Ex. 464, List of persons from Knin municipality region who finished
training in Golubi} settlement, listing 190 people who finished training at Golubi}. Ex. 625, selection of JNA operative
intelligence reports, p. 1.
317 Milan Babi}, 17 Feb 2006, T. 1542-1543; Witness MM-003, 8 Mar 2006, T. 2006; Stevo Plejo, 20 Sep 2006, T.
8696-8697, 9704-9705, 21 Sep 2006, T. 8793-8794; Nikola Medakovi}, 10 Oct 2006, T. 9051; Dragan Kneževi}, 3 Nov
2006, T. 10698-10699, 10722; Ex. 568; Ex. 600; Ex. 620; Ex. 1028, L0079797. See also Ex. 471.
Case No. IT-95-11-T 53 12 June 2007
employed in the SJBs.318 One witness testified that the reason for that name was that Milan Marti}
established the Golubi} training camp.319 Other witnesses testified that these terms referred
generally to the police force of the SAO Krajina and the RSK.320 Nikola Medakovi, who was the
commander of the Milicija Krajine unit in Plaški in 1991, testified that the members of that unit
were trained at the Golubi} training camp and that they were referred to as “Marti’s men”.321
Witness MM-037 called all of those who were led by Nikola Medakovi} “Marti}’s police”.322
148. The evidence shows that groups trained in Golubi were, in some instances, referred to as
Marti’s Men or Marti’s Police (Martievci). However, the evidence is insufficient to conclude
that all groups that were referred to by these names, or referred to themselves by these names, were
trained in Golubi. The evidence also shows that members of the Milicija Krajine were trained in
Golubi. The evidence is insufficient to conclude that all members of the police of the SAO Krajina
were referred to as Marti’s Men or Marti’s Police (Martievci).
C. The RSK
1. Development of the RSK
149. On 19 December 1991, the RSK was proclaimed by the Assembly of the SAO Krajina with
Milan Babi} as its President, and the RSK Constitution was passed.323 The TO constituted the
318 Witness MM-078, 24 May 2006, T. 4439. According Witness MM-078, these policemen were called Marti’s Men
or the Martievci, and considered by the citizens to be specialists or an elite, more capable, trained “and even more
loyal to the system”, as compared to the other policemen in the SJBs. The reason for the name was that “Marti set up
the whole thing and … it was after him that … they were named”, Witness MM-078, 24 May 2006, T. 4439.
Hamdija Krupi} testified that there were also policemen in the municipality Bosanski Novi, BiH, who had undergone
the training in Golubi “to carry out special tasks” and were called “Marti’s Police”. These men were from the Bosnian
Krajina, Hamdija Krupi}, 30 Mar 2006, T. 2958-2960. According to Witness MM-037, younger policemen at the Pla{ki
SJB were sent to Golubi} for training, and when they returned, they started to call themselves “Marti}’s police”,
Witness MM-037, 28 Mar 2006, T. 2749, 2804, Ex. 268, T. 11569-11570. The Trial Chamber notes that the units that
had been trained at Golubi were also called the Special Police, Specials, Specialists or Special Purpose Units of the
Krajina police, Witness MM-003, 8 Mar 2006, T. 2006-2007, 10 Mar 2006, T. 2195-2196; Milan Babi}, 17 Feb 2006,
T. 1539-1541; Ex. 1028, L0079768.
319 Witness MM-078, 24 May 2006, T. 4439.
320 Radoslav Maksi testified that the term Martievci or Marti’s Men was a colloquial term which referred “to the
police force of the SAO Krajina MUP”, Radoslav Maksi}, 7 Feb 2006, T. 1191. Witness MM-096 also testified that
the term was used to refer to the entire police force in the SAO Krajina and the RSK “or even something much broader,
sometimes even all the citizens who were wearing uniforms”, Witness MM-096, 25 Aug 2006, T. 7194. Witness MM-
003 testified that the term Marti}’s police, the abbreviated name of which was Martievci and Marti’s Men, “applied to
the overall police” of the SAO Krajina, Witness MM-003, 10 Mar 2006, T. 2194 -2195.
321 Nikola Medakovi, 9 Oct 2006, T. 8965-8966, 8999, 10 Oct 2006, T. 9051, 9056, also testifying that in May 1991,
he met with Milan Marti in Knin to request weapons to reinforce the Plaški municipality police, and that Milan Marti
replied that long-barrelled weapons could only be given to persons who had been trained in Golubi. See also Ex. 507,
p. 2, providing that Nikola Medakovi} was commander of the Marti}evci or “Marti}’s men” and that this unit was part
of the regular police commanded by Du{an Latas.
322 Witness MM-037, 28 Mar 2006, T. 2795.
323 Ex. 820, Agreed Facts, para. 23. See also Reynaud Theunens, 27 Jan 2006, T. 759; Witness MM-090, 29 Aug 2006,
T. 7373; Witness MM-090, 5 Sep 2006, T. 7777-7779. The RSK was defined as a national state of the Serbian people
and of all the citizens residing therein, Ex. 820, Agreed Facts, para. 23.
Case No. IT-95-11-T 54 12 June 2007
armed forces of the RSK.324 On 16 February 1992, the government fell as Milan Babi} was
removed from the office of President of the RSK by the RSK Assembly due to his opposition to
Slobodan Milo{evi} in respect of the Vance Plan.325 Milan Marti}, who had previously opposed the
Vance Plan, now publicly supported the adoption of the Vance Plan.326 After Milan Babi} was
removed from office, the Vance plan was adopted by the Assembly of the RSK.327
150. On 21 February 1992, the UN Security Council adopted Resolution 743 implementing the
Vance Plan and establishing UNPROFOR in certain areas of Croatia designated as “United Nations
Protected Areas” (“UNPAs”).328 The UNPAs were areas where Serbs constituted the majority or a
substantial minority of the population and where inter-communal tensions had previously led to
armed conflict.329 The Vance Plan defined three UNPAs, which covered four sectors: UNPA
Krajina, covering Sector South (Lika and Dalmatia) and Sector North (Banija and Kordun), UNPA
Western Slavonia, covering Sector West, and UNPA Eastern Slavonia, covering Sector East.330 The
UNPAs were to be demilitarised, with all armed forces to be either withdrawn or disbanded.331
However, the plan foresaw maintaining the local police who could carry weapons and wear
uniforms.332 UN police monitors, UNCIVPOL, were to ensure that the local police carried out their
duties without discriminating or violating human rights.333 UNCIVPOL reported any incidents both
324 Ex. 166, Art. 102. See also Ex. 6, p. 123.
325 Milan Babi}, 20 Feb 2006, T. 1639-1642, 1644 (testifying that he wanted a change in the Vance Plan to the effect
that the JNA would remain in the Krajina as a military force that would protect the Krajina until a political solution
was found for the status); Lazar Macura, 12 Sep 2006, T. 8206. See also Ex. 657; Charles Kirudja, 31 May 2006, T.
4888; Slobodan Jar~evi}, 13 Jul 2006, T. 6196-6197; Lazar Macura, 13 Sep 2006, T. 8226-8231, 14 Sep 2006, T. 8337,
8396-8397.
326 Milan Babi}, 20 Feb 2006, T. 1644-1645; Mile Daki}, 25 Oct 2006, T. 10044; Ex. 230. See also Lazar Macura, 14
Sep 2006, T. 8347.
327 Veljko D‘akula, 16 Jan 2006, T. 405-406; Borislav Ðuki}, 23 Oct 2006, T. 9936.
328 Ex. 820, Agreed Facts, para. 25. See also Veljko D‘akula, 18 Jan 2006, T. 559; Peter Galbraith, 25 Apr 2006, T.
3744; John McElligott, 26 May 2006, T. 4553-4554; Charles Kirudja, 30 May 2006, T. 4785-4786, 1 Jun 2006, T.
4901-4905; Ratko Li~ina, 15 Aug 2006, T. 6435, 17 Aug 2006, T. 6629-6630; Lazar Macura, 14 Sep 2006, T. 8332;
Borislav Ðuki}, 23 Oct 2006, T. 9903-9904; Ex. 115.
329 Ex. 820, Agreed Facts, para. 25. See also Veljko D‘akula, 18 Jan 2006, T. 559; Ex. 864.
330 Veljko D‘akula, 18 January 2006, T. 559, 19 Jan 2006, T. 610; Ex. 115; Ex. 61; Ex. 724. Charles Kirudja, 31 May
2006, T. 4805. The Croats and the Serbs differed in their interpretation of the borders of the UNPAs, with the Croats
seeing the borders of municipalities as borders of the UNPAs and the Serbs seeing the confrontation line as the border
of the UNPAs, Charles Kirudja, 31 May 2006, T. 4805-4809; Ex. 746.
331 Ex. 820, Agreed Facts, para. 25, providing that as UNPROFOR assumed its responsibilities, all JNA forces deployed
in Croatia would be relocated outside Croatia. See also Veljko D‘akula, 16 Jan 2006, T. 407; John McElligott, 26 May
2006, T. 4553; Charles Kirudja, 30 May 2006, T. 4788, 31 May 2006, T. 4810, 1 Jun 2006, T. 4902-4903; Slobodan
Jar~evi}, 13 Jul 2006, T. 6197-6198, 6245; Slobodan Peri}, 6 Sep 2006, T. 7837-7838; Witness MM-117, 13 Oct 2006,
T. 9353; Borislav Ðuki}, 19 Oct 2006, T. 9721-9722, 23 Oct 2006, T. 9904; Ex. 115.
332 Borislav Ðuki}, 19 Oct 2006, T. 9723. The weapons were to be placed under a double-key system; one key for
UNPROFOR and one key for the RSK authorities, Charles Kirudja, 31 May 2006, T. 4818-4819, 4821-4822; Slobodan
Jar~evi}, 13 Jul 2006, T. 6198-6199, 6244; Ratko Li~ina, 15 Aug 2006, T. 6436-6437; Witness MM-096, 22 Aug 2006,
T. 6879; Slobodan Peri}, 6 Sep 2006, T. 7838; Borislav Ðuki}, 23 Oct 2006, T. 9904; Ex. 748.
333 Ex. 115; John McElligott, 26 May 2006, T. 4553, 4555-4557, 29 May 2006, T. 4660-4662, 4669-4673, 30 May
2006, T. 4770-4771; Witness MM-096, 22 Aug 2006, T. 6880-6882; Ex. 721; Ex. 722; Ex. 723; Ex. 725. Milan Marti}
issued instructions regulating in detail the mode of cooperation with UNPROFOR and UNCIVPOL, Witness MM-117,
18 Oct 2006, T. 9648-9649.
Case No. IT-95-11-T 55 12 June 2007
within its own chain of command, as well as to the relevant Croatian or RSK local police, however
in serious cases reports were also sent directly to the relevant government.334
151. On 26 February 1992, the SAO Western Slavonia and the SAO Eastern Slavonia, Baranja
and Western Šrem joined the RSK.335 In the new RSK government, Zdravko Zeevi} became Prime
Minister, Goran Had‘i was elected President, and Milan Marti} was re-elected Minister of the
Interior.336 In April 1992, UNPROFOR troops started arriving in the UNPAs.337 In addition,
UNPROFOR was also mandated to patrol the so-called “pink zones” outside the UNPAs, which
were areas under JNA control, in many instances with a significant Serb presence.338
152. The evidence shows that the RSK was not demilitarised in its entirety in accordance with the
Vance Plan.339 On 28 April 1992, Special Police (“PJM”) Brigades and a PJM Administration were
established within the RSK Ministry of Defence by the SSNO of Serbia.340 General Borislav Ðuki,
a JNA officer, was appointed Chief of the PJM Administration.341 The PJM Brigades were
connected both to the Ministry of Defence and to the MUP of the RSK.342 The members of PJM
units wore blue uniforms and used the side arms and the equipment of the TO.343 There is also
evidence that TO vehicles were repainted in blue and used by the PJM.344 On 18 May 1992, the
334 John McElligott, 26 May 2006, T. 4565-4567, 29 May 2006, T. 4669-4671, 4676-4679, 30 May 2006, T. 4731,
4733; Witness MM-096, 22 Aug 2006, T. 6881-6882, 6929-6931, 24 Aug 2006, T. 7106.
335 Ex. 820, Agreed Facts, para. 26. See also Veljko Džakula, 16 Jan 2006, T. 347-348 (testifying that the SAO Western
Slavonia had been declared on 12 August 1991), 358; Ratko Liina, 15 Aug 2006, T. 6493.
336 Ex. 820, Agreed Facts, para. 26. Slobodan Jarevi} was Minister of Foreign Affairs of the RSK from October 1992
to April 1994, when he was replaced by Milan Babi}, Slobodan Jarevi, 12 Jul 2006, T. 6133, T. 6169; Ex. 191. See
also Veljko Džakula, 16 Jan 2006, T. 358, 19 Jan 2006, T. 621.
337 Charles Kirudja, 30 May 2006, T. 4781, 4789, 31 May 2006, T. 4804-4805; Witness MM-096, 22 Aug 2006, T.
6873.
338 Veljko D‘akula, 19 Jan 2006, T. 610-611; John McElligott, 26 May 2006, T. 4569, 29 May 2006, T. 4629-4630. See
also Charles Kirudja, 31 May 2006, T. 4805-4809.
339 Veljko D‘akula, 16 Jan 2006, T. 406-407; Milan Babi}, 20 Feb 2006, T. 1645; Slobodan Jar~evi}, 13 Jul 2006, T.
6245, 6248; Ex. 75, pp 2-4. See also Borislav Ðuki}, 19 Oct 2006, T. 9722.
340 Ex. 978. The PJM brigades were subordinated to the PJM Administration in both peacetime and wartime, Ex. 978, p.
2, item 10; Borislav Ðuki}, 19 Oct 2006, T. 9723-9724, 9730.
341 Ex. 71; Borislav Ðukic, 19 Oct 2006, T. 9740-9741; Ex. 633. See also Ex. 978; Witness MM-117, 18 Oct 2006, T.
9676-9677.
342 Borislav Ðuki, 19 Oct 2006, T. 9793-9794, also testifying that “the professional part of the execution of the task
was connected to the MUP” that the PJM Brigades “carried out tasks from within the police force and were linked to
the Minister of the Interior”, 23 Oct 2006, T. 9911-9913; Ex. 72.
343 Charles Kirudja, 31 May 2006, T. 4816; Ex. 747; Slobodan Peri}, 7 Sep 2006, T. 7942-7943.
344 Slobodan Peri}, 7 Sep 2006, T. 7942-7943. See also Ex. 68; Ex. 696. In Ex. 747, p. 4, Charles Kirudja wrote:
The recent emergence of a newly fortified militia is hard not to notice. Former military vehicles
have been repainted from green to blue – the colors of the present police force. Many of the
militiamen have begun to sport new blue uniforms and appear to be deployed along the front line.
See further Ex. 73; Ex. 74; Ex. 75; Ex. 730; Ex. 864; Ex. 985.
Case No. IT-95-11-T 56 12 June 2007
SVK was established.345 In peacetime, the SVK was to consist of TO units, however in the event of
imminent threat of war and during wartime the PJM units would join the SVK.346
153. The RSK leadership was against the demilitarisation of the RSK, asserting it would be
unable to defend itself in the event of Croatian attacks.347 Thus, the Vance Plan was interpreted by
the RSK authorities to mean that UNPROFOR was to protect the population in the areas of
deployment.348 In this context, the Trial Chamber notes that Croatian forces carried out several
armed incursions into the UNPAs between 1992 and 1995, including on the Miljevac plateau on 21
June 1992, Maslenica on 22 January 1993, Medak pocket on 9 and 12 September 1993, and
Operation Flash from 1 May 1995.349
154. During the spring of 1992, the road which went through the so-called Posavina Corridor, a
predominantly Bosnian Croat strip of land in north-eastern BiH, had been blocked in the region of
Doboj by Croatian forces in alliance with the forces of BiH.350 The area was of strategic importance
as it linked the Croatian and Bosnian Krajina regions with Serbia.351 In two phases, during the
summer and late autumn of 1992, a military operation known as “Koridor 92” was carried out in the
Posavina Corridor. While there is evidence that the objective of the operation was to resolve a
humanitarian situation which had arisen as a result of the blocking of the road near Doboj, there is
significant evidence that the main objective was to link Serb lands.352 As part of the operation, the
345 Ex. 6, p. 141, citing Constitutional Amendment No. VIII.
346 Law on Defence as amended, cited in Ex. 6, p. 142.
347 Veljko D‘akula, 16 Jan 2006, T. 405-406; Milan Babi}, 20 Feb 2006, T. 1644; John McElligott, 29 May 2006, T.
4631; Slobodan Jar~evi}, 13 Jul 2006, T. 6199-6200; Ratko Li~ina, 15 Aug 2006, T. 6439-6440; Ex. 574, p. 1; Ex. 750.
See also Charles Kirudja, 31 May 2006, T. 4837-4838, 1 Jun 2006, T. 4981-4982; Borislav Ðuki}, 19 Oct 2006, T.
9721-9722.
348 Ratko Li~ina, 15 Aug 2006, T. 6439; Witness MM-096, 22 Aug 2006, T. 6880; Witness MM-090, 31 Aug 2006, T.
7484-7485.
349 John McElligott, 29 May 2006, T. 4631-4632, 4641, 4648-4649; Charles Kirudja, 1 Jun 2006, T. 4921-4922, 4928,
4942-4943; Ratko Li~ina, 15 Aug 2006, T. 6450-6453, 6462-6464; Witness MM-096, 22 Aug 2006, T. 6880; Witness
MM-090, 4 Sep 2006, T. 7706-7707; Slobodan Peri}, 6 Sep 2006, T. 7841; Witness MM-117, 13 Oct 2006, T. 9383-
9384, 9388; Patrick Barriot, 9 Nov 2006, T. 10764; Ex. 75, pp 1-2; Ex. 885. After the incursions on Maslenica and
Medak pocket, the RSK removed weapons from storage depots, Charles Kirudja, 31 May 2006, T. 4819-4822, 1 Jun
2006, T. 4981-4982; Ratko Li~ina, 17 Aug 2006, T. 6635. See also Peter Galbraith, 25 Apr 2006, T. 3795-3796;
Slobodan Peri}, 7 Sep 2006, T. 7945-7946.
350 Veljko Džakula, 17 Jan 2006, T. 432, 19 Jan 2006, T. 588; Charles Kirudja, 1 Jun 2006, T. 4966; Slobodan Jar~evi},
13 Jul 2006, T. 6192; Borislav Ðuki}, 19 Oct 2006, T. 9778-9779, 9788-9789, 23 Oct 2006, T. 9918 (testifying that as a
result of the blocking of the road a difficult humanitarian situation arose in Krajina and Bosanska Krajina); Witness
MM-105, 2 Nov 2006, T. 10610; Ex. 6, p. 169; Ex. 103. See also Reynaud Theunens, 27 Jan 2006, T. 796-797.
351 The importance of this area was stated by Milan Marti in an article in Vojska Krajine, 3 Jun 1993, p. 3, see Ex. 6, p.
169. See also Reynaud Theunens, 27 Jan 2006, T. 797. Moreover, on 12 May 1992, at a session of the Assembly of the
Serbian People in BiH, the President of the RS Radovan Karad`i} announced as a strategic goal of the Serb people to
establish a corridor between the Krajina region and Semberija in Serbia in order to “integrate the Serbian lands”, Ex.
45, pp 13-14; Veljko Džakula, 19 Jan 2006, T. 589; Slobodan Jar~evi}, 13 Jul 2006, T. 6192.
352 Regarding the humanitarian situation, see Borislav Ðuki} 19 Oct 2006, T. 9779, 9788-9789; Witness MM-105, 2
Nov 2006, T. 10609 (see also Veljko Džakula, 17 Jan 2006, T. 589; Ex. 6, p. 169; Reynaud Theunens, 27 Jan 2006, T.
813). The Trial Chamber notes that of these witnesses only Borislav Ðuki testified to the existence of a grave
humanitarian situation. Regarding the linking of Serb lands, see Ex. 944; Lazar Macura, 15 Sep 2006, T. 8412-8413;
Ex. 45, pp 13-14; Slobodan Jar~evi}, 13 Jul 2006, T. 6192 (see also Witness MM-003, 9 Mar 2006, T. 2040-2041).
Case No. IT-95-11-T 57 12 June 2007
whole of the Posavina area was devastated; many houses were torched and many civilians,
including Croats, were killed.353
155. On 20 April 1993, the RSK Supreme Defence Council was established, which was
composed of the President of the RSK, the Prime Minister, the Minister of Defence, the Minister of
the Interior, and the Commander of the SVK.354 The President of the RSK “led the SVK in times
of peace and war, in accordance with the RSK Constitution and decisions adopted by the Supreme
Defence Council, and presided over the Supreme Defence Council”.355 The Supreme Defence
Council was mandated to “adopt decisions on the readiness, mobilisation and deployment of the
SVK and on other matters in accordance with the Constitution and the law.”356
156. On 25 January 1994, Milan Marti was elected President of the RSK, defeating Milan
Babi.357 On 21 April 1994, a new government was formed under Milan Marti, inter alia, with
Borislav Mikeli} as Prime Minister and Milan Babi as Foreign Minister.358 The new government’s
aim was to achieve “sovereignty of the RSK and the right of the Serb people to self-determination
and unification with other parts of the Serb people.”359
157. Following on from the Zagreb Agreement, which had been signed on 29 March 1994,360 in
January 1995 the Z-4 Plan was presented, envisaging a high degree of autonomy within Croatia for
the Krajina region and that Eastern Slavonia, Baranja, and Šrem, and Western Slavonia would be
353 Veljko Džakula, 19 Jan 2006, T. 590-592, 613, also stating that he heard that “there was damage inflicted and
destruction wrought in places where there was no direct fighting or combat”, and that the Posavina Corridor was “razed
to the ground, devastated and laid to waste”.
354 Ex. 78, p. 3.
355 Ex. 78, p. 3. See also Ex. 79, Art. 40, p. 1.
356 Ex. 78, p. 4.
357 Ex. 820, Agreed Facts, para. 29.
358 The government also comprised Ilija Priji as Minister of Interior and Rade Tanja as Minister of Defence, Milan
Babi, 15 Feb 2006, T. 1328-1329; Witness MM-117, 18 Oct 2006, T. 9646; Ex. 970, p. 2. Milan Babi} remained as
Foreign Minister until 27 July 1995 when he became Prime Minister, Milan Babi, 15 Feb 2006, T. 1328-1329; Nikola
Dobrijevi}, 10 Nov 2006, T. 10855, 10902.
359 Ex. 970, p. 2 (quoting Borislav Mikeli as saying that “our negotiating position is and will be territorial integrity and
sovereignty of the Republic of Serb Krajina. The RSK will sooner or later unite with the Serb republic and Montenegro
into a unified state”). See also Witness MM-117, 16 Oct 2006, T. 9494-9495, 9483-9484.
360 The Zagreb Agreement foresaw the creation of two cantons within Croatia and also regulated the withdrawal of all
indirect weaponry and artillery from the border between Croatia and the RSK. Moreover, all weapons were to be under
UN control, Slobodan Jar~evi}, 12 Jul 2006, T. 6167-6168; Charles Kirudja, 1 Jun 2006, T. 4935-4936; Ex. 929. Two
economic agreements ensued, signed in November and early December 1994, and the RSK government undertook
measures to abide by these agreements, Milan Babi}, 21 Feb 2006, T. 1660; Peter Galbraith, 25 Apr 2006, T. 3743-
3745, 3794, 3815, 3796-3797; Charles Kirudja, 1 Jun 2006, T. 4935-4936; Slobodan Jar~evi}, 12 Jul 2006, T. 6169,
6175; Ratko Li~ina, 15 Aug 2006, T. 6451-6452; Slobodan Peri}, 6 Sep 2006, T. 7841. Previously during 1993, several
unsuccessful attempts had been made at concluding agreements between Croatia and the RSK: the Daruvar Agreement
on 18 February 1993 (Veljko D‘akula, 16 Jan 2006, T. 359-362; Milan Babi}, 20 Feb 2006, T. 1653-1654; Witness
MM-105, 1 Nov 2006, T. 10534-10535, 10573-10574, in April 1993, an agreement was negotiated in Geneva
(Slobodan Jar~evi}, 14 Jul 2006, T. 6281-6282), the Erdut Agreement in July 1993 (Slobodan Jar~evi}, 12 Jul 2006, T.
6151-6153, T. 6162-6163; Ex. 876), the Oslo agreement on 4 November 1993 (Slobodan Jar~evi}, 12 Jul 2006, T.
6157-6160), the Dobanovci Negotiations in December 1993 (Peter Galbraith, 25 Apr 2006, T. 3741; Slobodan Jar~evi},
12 Jul 2006, T. 6163-6165).
Case No. IT-95-11-T 58 12 June 2007
reincorporated into Croatia with lesser forms of autonomy.361 The Z-4 Plan provided for a five-year
transition period for the restoration of full sovereignty for Croatia.362 On 30 January 1995, Milan
Marti}, as President of the RSK, refused to accept the Z-4 Plan, as Croatia had announced that it
would not accept an extension of UNPROFOR’s mandate.363 The mandate was eventually extended
in March 1995 and focused on reconstruction and cooperation, however Milan Marti} continued to
refuse to negotiate the Z-4 Plan because the reshaped UNPROFOR, now called UNCRO, was not a
protection force.364 There is evidence that Milan Marti acted under the instruction of Slobodan
Milo{evi} to reject the Z-4 Plan.365 The negotiations between the RSK and Croatia continued
through the first half of 1995, with the RSK government appearing seemingly more amenable to the
Z-4 plan.366
158. On 2 August 1995, Milan Babi, as Prime Minister of the RSK, accepted the Z-4 Plan “in
substance”.367 On 4 August 1995, the Croatian Army and police forces launched a military
operation, called Operation Storm, on the RSK and the UNPAs, which eventually resulted in them
taking control of the territory of the RSK.368
2. Cooperation with and assistance from Serbia
159. Throughout 1992, 1993 and 1994, the RSK leadership, including Milan Marti, requested
financial, logistical and military support from Serbia on numerous occasions, including directly
from Slobodan Miloševi.369 Most of these requests were fulfilled, and support was given to the
RSK MUP370 and to the TO and the SVK.371 In January 1992, Milan Marti} stated that cooperation
361 Veljko D‘akula, 17 Jan 2006, T. 440-441, 19 Jan 2006, T. 596-597; Milan Babi}, 20 Feb 2006, T. 1654; Peter
Galbraith, 25 Apr 2006, T. 3742-3743, 3754-3755 (testifying that the Krajina area was to have the right to its own flag
and language and competence to decide on legislature, housing, education, culture, public services, energy, business
and many other aspects of its society); Slobodan Jar~evi}, 12 Jul 2006, T. 6177-6178; Slobodan Peri}, 7 Sep 2006, T.
7944-7945; Lazar Macura, 13 Sep 2006, T. 8232; Ex. 381.
362 Veljko D‘akula, 19 Jan 2006, T. 597; Peter Galbraith, 25 Apr 2006, T. 3803.
363 Milan Babi}, 20 Feb 2006, T. 1654-1655; Peter Galbraith, 25 Apr 2006, T. 3749-3751, 3801-3802; Slobodan
Jar~evi}, 14 Jul 2006, T. 6299-6300; Lazar Macura, 13 Sep 2006, T. 8233, 14 Sep 2006, T. 8349.
364 Peter Galbraith, 25 Apr 2006, T. 3750, 3801-3802; Slobodan Jar~evi}, 12 Jul 2006, T. 6181-6183. See also Lazar
Macura, 14 Sep 2006, T. 8350.
365 Rade Ra{eta, 2 May 2006, T. 3918-3919 (testifying that Slobodan Miloševi told Milan Marti to reject the Z-4 Plan
a priori); Mile Daki, 25 Oct 2006, T. 10055-10056 (testifying that the RSK leadership was “awaiting a response from
Belgrade which was a higher level that was deciding about whether the Z-4 Plan would be accepted or not”). See
also Peter Galbraith, 25 Apr 2006, T. 3751-3753; Charles Kirudja, 1 Jun 2006, T. 4957; Ex. 769, p. 2.
366 Peter Galbraith, 25 Apr 2006, T. 3793; Witness MM-117, 16 Oct 2006, T. 9450-9451, 17 Oct 2006, T. 9596; Ex.
391.
367 Milan Babi}, 20 Feb 2006, T. 1656-1657; Peter Galbraith, 25 Apr 2006, T. 3747-3749. See also Witness MM-117,
18 Oct 2006, T. 9623-9625.
368 Ex. 820, Agreed Facts, para. 32.
369 Ex. 11 (identical to Ex. 659); Ex. 12; Ex. 68; Ex. 69; Ex. 194; Ex. 707; Ex. 840; Peter Galbraith, 25 Apr 2006, T.
3756-3757.
370 The RSK MUP received support from Serbia and the JNA/VJ, in many cases pursuant to a standing SSNO order of
20 April 1992 concerning supply of ammunition to the RSK MUP: Ex. 67; Ex. 692; Ex. 694; Ex. 695; Ex. 697; Ex. 698;
Ex. 699, Ex. 700, Ex. 701, Ex. 702, Ex. 703, and Ex. 704. Milan Babi testified that in 1992 the RSK police was
financed in the same way as in 1991 with the SAO Krajina, Milan Babi, 16 Feb 2006, T. 1465.
Case No. IT-95-11-T 59 12 June 2007
with Serbia never ceased and was good.372 There is evidence describing the relationship between
the RSK and Serbia as one “between two states” although the RSK listened to “the opinions of our
ally.”373 There was a representation office in Belgrade of the RSK Foreign Minister’s office.374 The
RSK Minister of Foreign Affairs was paid by Serbia as a result of being employed by the Ministry
of Foreign Affairs of Serbia.375 As President of the RSK, Milan Marti} enjoyed the full support of
the VJ.376
160. In respect of the cooperation between the RSK and the RS, the Trial Chamber notes the
evidence regarding operation Koridor 92.377 Both phases of the operation included units of the RSK
police, PJM and TO, and the operation was led by the VRS and RS police.378 Milan Marti visited
the Posavina Corridor on several occasions during the first phase of the operation in June and July
1992.379 During the second phase of Operation Corridor, two RSK PJM brigades participated.380
Milan Marti and Borislav Ðuki commanded a “strong” RSK police detachment during this phase
of operation Koridor 92.381 The evidence shows that following operation Koridor 92, Milan
Marti’s popularity in the RSK increased significantly.382
371 Milan Babi}, 16 Feb 2006, T. 1466-1467. The support from Serbia to the SVK covered all aspects of its functioning,
including personnel, operational and logistical support, Rade Rašeta, 2 May 2006, T. 3894-3896 (between 150-200 VJ
officers were seconded to the SVK to leading positions), T. 3903 (testifying that the SVK and the VJ “were actually one
and the same organisation, but positioned at two different locations”), T. 3907-3910, 3953-3954, Rade Rašeta, 3 May
2006, T. 3978; Slobodan Peri}, 7 Sep 2006, T. 7933; Lazar Macura, 14 Sep 2006, T. 8338-8339; Borislav Ðukic, 23
Oct 2006, T. 9927-9928; Ex. 63, p. 2; Ex. 64; Ex. 65, Ex. 456. The SSNO continued to order organisational changes in
the SAO Krajina TO, Ex. 62; Ex. 71; Ex. 978. See also Ex. 6, pp 161-68; Reynaud Theunens, 27 Jan 2006, T. 806.
372 Ex. 951, p. 1.
373 Slobodan Jarevi, 13 Jul 2006, T. 6254.
374 Slobodan Jarevi, 12 Jul 2006, T. 6139, 13 Jul 2006, T. 6253-6254.
375 Slobodan Jarevi, 12 Jul 2006, T. 6139, 13 Jul 2006, T. 6170, 6253-6254, 14 Jul 2006, T. 6322-6323.
376 Rade Rašeta, 2 May 2006, T. 3907-3908. The JNA became the VJ when the SFRY ceased to exist and Serbia and the
Republic of Montenegro made up the Federal Republic of Yugoslavia, Lazar Macura, 15 Sep 2006, T. 8428.
377 See supra para. 154.
378 On 5 June 1992, Milan Marti ordered the SUPs and MUP Brigades in the RSK to form “volunteer police
companies” of 120 men each and armed with automatic weapons and wearing Krajina police insignia “in order to carry
out tasks of interest for the RSK and the Serbian people as a whole”, Ex. 635. On 10 June 1992, Milan Marti ordered
these units to march along certain axes into BiH, Ex. 461. The RSK MUP forces formed part of TG-2, commanded by
Colonel Mile Novakovi, and were deployed in BiH at least as of 24 June 1992, Ex. 634, pp 4, 9. On 19 June 1992, the
Ministers’ Cabinet of the RSK MUP announced that RSK MUP units were participating in Operation Corridor,
Reynaud Theunens, 27 Jan 2006, T. 813; Ex. 646. See also Ex. 6, p. 170; Ex. 568.
379 Ex. 634, pp 14, 48, 63, 93, 123.
380 Ex. 87 (Order, dated 13 November 1992, for the two PJM brigades to participate “with the aim of expanding the
corridor and liberating all Serbian Territories”).
381 Veljko Džakula, 17 Jan 2006, T. 432-433. See also Witness MM-003, 9 Mar 2006, T. 2041, 10 Mar 2006, T. 2211.
There is also evidence that on 22 November 1992 Milan Marti, Borislav Ðuki and General Momir Tali of the VRS
held a meeting to assess “the situation regarding the forthcoming combat operations” in the area of Gradaac and
Orašje, see Ex. 6, p. 173.
382 Veljko Džakula, 16 Jan 2006, T. 404.
Case No. IT-95-11-T 60 12 June 2007
D. Armed clashes between Serb and Croatian forces
1. During spring and summer of 1991
161. Several armed clashes occurred between Croatian and SAO Krajina armed forces in several
locations during the spring and summer of 1991.383
162. As noted above, in March 1991 there were armed clashes in Pakrac and in Plitvice between
Croatian MUP special police forces and the police of the SAO Krajina. On both occasions, the JNA
intervened after these clashes to separate the two sides.384
163. In June 1991, there was a Croatian SJB in Lovinac, in Graac municipality north-west of
Knin, and as a consequence the village was attacked by the police of the SAO Krajina.385 Witness
MM-003 testified that Milan Marti was in command of this attack. The Trial Chamber recalls its
finding that the evidence of Witness MM-003 requires corroboration and notes that this piece of
evidence is uncorroborated. However, the Trial Chamber notes Milan Babi’s testimony that Milan
Marti “participated” in the attack together with Franko Simatovi.386 While the evidence does not
support a finding that Milan Marti commanded the attack on Lovinac, the Trial Chamber finds it
established beyond reasonable doubt that Milan Marti participated in the attack.387
164. On 2 July 1991, the village of Ljubovo, south-west of Titova Korenica, was attacked by the
Milicija Krajine because members of the Croatian MUP had stationed themselves there following
the conflict in Plitvice. In public statements, Milan Marti said that this attack was carried out
because an ultimatum of the SAO Krajina government had expired which required that all members
and units of the Croatian MUP withdraw from the SAO Krajina territory and because of arrests and
mistreatment by Croats of Serbs in the area of Lika.388
383 There is also evidence that there were several similar armed clashes and attacks in other villages during the spring
and summer of 1991, including in Potkonje, Vrpolje, and Liki Osik: Potkonje and Vrpolje: Sometime before June
1991, about 60 members of the SAO Krajina police raided the small Croat villages of Potkonje and Vrpolje located in
the municipality of Knin, allegedly to locate a radio transmitter. Nobody was killed in this action, however the incident
caused the civilian population to leave the area, Witness MM-078, 24 May 2006, T. 4453, 25 May 2006, T. 4520-4521;
Witness MM-096, 21 Aug 2006, T. 6846-6849 (testifying that 60 automatic rifles and ammunition were found with
some persons, that criminal charges were brought against them but that they were eventually released), 24 Aug 2006, T.
7067-7068, 7072-7073; Ex. 1037, L0092049. Liki Osik: On 2 July 1991, Croatian police in the town of Liki Osik
were attacked by “Krajina forces”, Ex. 214, p. 3, wherein Milan Marti described this as “our first offensive action”.
384 See supra para. 132.
385 Milan Babi}, 16 Feb 2006, T. 1432-1433; Witness MM-003, 8 Mar 2006, T. 2010-2011; Ratko Liina, 14 Aug 2006,
T. 6408.
386 Witness MM-003, 8 Mar 2006, T. 2010-2011; Milan Babi}, 16 Feb 2006, T. 1432-1433.
387 The Trial Chamber recalls its findings that Milan Babi’s evidence, as well as that of Witness MM-003, requires
corroboration, see supra section I D 2. The Trial Chamber considers, however, that where the evidence of one of these
witnesses corroborates the evidence of the other, such corroboration is sufficient.
388 Ex. 211; Ex. 973; Ex. 975. See also MM-003, 8 Mar 2006, T. 2005-2006. Ratko Liina testified that the SAO
Krajina police only reacted to the establishment of Croatian SJBs in municipalities where the Serbs were in majority, as
Case No. IT-95-11-T 61 12 June 2007
165. In mid-July 1991, the town of Glina, located in the Banija area north-west of Dvor, was
attacked by a unit under the command of Captain Dragan Vasiljkovi.389 The JNA intervened after
the attack by creating a buffer zone.390 On 25 July 1991, the village of Struga, a few kilometres
north of Dvor along the Una river, was attacked by units under the command of Captain Dragan
Vasiljkovi and the Glina War Staff: 50 members of a “special forces” unit, 50 policemen and 700
civilians participated in the operation.391 Following the attack, the JNA intervened and created a
buffer zone.392
166. On 26 August 1991, the Croat village of Kijevo, situated 15 kilometres east of Knin, was
attacked because the MUP of Croatia had established an SJB in the village.393 The decision to
attack Kijevo was taken by Milan Marti in coordination with the JNA and followed an ultimatum
issued by him to the Croatian SJB, in which he stated that “you and your leadership have brought
relations between the Serbian and Croatian populations to such a state that further co-existence in
our Serbian territories of the SAO Krajina is impossible”.394 In relation to the civilian population in
Kijevo, the ultimatum provided that:
We also want to advise the population of Kijevo to find safe shelters on time so that there should
be no casualties among them. We would like to stress that we want co-existence and
understanding between the residents of the Serbian villages and the Croatian population in Kijevo,
and we guarantee civil and human rights to everyone .395
167. Units of the JNA 9th Corps in Knin, the Milicija Krajine and the local TO participated in the
attack.396 The evidence establishes that there was coordination between the JNA and the MUP, and
that the JNA was in command of the participating forces.397 The evidence is inconsistent as to the
strength of the Croatian forces present in Kijevo.398 Prior to the attack, between 23 and 25 August
was the case in Plitvice (Titova Korenica municipality), in Lovinac (Graac municipality), in Kijevo (Knin
municipality), in Kruševo (Obrovac municipality), in Škabrnja (Benkovac municipality), in Vidusevac (Glina
municipality), Ratko Liina, 14 Aug 2006, T. 6428, 15 Aug 2006, T. 6507-6508.
389 Aernout van Lynden, 2 Jun 2006, T. 5002, 5012-5014.
390 Aernout van Lynden, 2 Jun 2006, T. 4996-4999, 5007.
391 Ex. 587. See also Ex. 582 (stating that Milan Marti, Captain Dragan Vasiljkovi and Bogdan Vajagi met on 23
July 1991 to discuss the situation in the Banija area).
392 Aernout van Lynden, 2 Jun 2006, T. 5008. See also Ex. 587, p. 1.
393 Milan Babi}, 17 Feb 2006, T. 1553-1556; Ex. 1037, L0079681.
394 Ex. 820, Agreed Facts, para. 20. See also Milan Babi}, 16 Feb 2006, T. 1438-1439, 17 Feb 2006, T. 1555, Ex. 1037,
Group 11, L0079292-3, L0079682; Ex. 212.
395 Ex. 212; Milan Babi}, 17 Feb 2006, T. 1555. See also Ex. 496, p. 11; Ex. 1037, L0079294, L0079682.
396 Milan Babi}, 17 Feb 2006, T. 1558-1559; Milan Dragi{i}, 19 Sep 2006, T. 8655-8656.
397 Ex. 45, p. 48; Ex. 496, p. 11. See also Witness MM-003, 09 Mar 2006, T. 2035.
398 Witness MM-078, 24 May 2006, T. 4443 (members of the Croatian MUP were billeted in the culture hall in Kijevo).
Milan Dragi{i}, 19 Sep 2006, T. 8655-8656 (there were at least 300 armed men in Kijevo, including ZNG); Borislav
Ðuki}, 20 Oct 2006, T. 9875 (there was a gradual reinforcement of the Croatian forces in Kijevo, which eventually
numbered 1,000 men).
Case No. IT-95-11-T 62 12 June 2007
1991, the commander of the Croatian SJB evacuated almost the entire civilian population of
Kijevo.399
168. The attack on Kijevo on 26 August 1991 only lasted a few hours.400 There is differing
evidence as to the purpose of the attack. Witnesses testified that the purpose was “to cleanse Kijevo
of its Croatian population”, to link up the two Serb villages of Polace and Civljani on either side of
Kijevo, to “liberate the area”, and to provide for further advancement of the JNA.401 Borislav
Ðuki, who at the time was commander of Tactical Group 1 (“TG-1”) of the JNA 9th Corps in Knin,
testified that the attack had not been planned beforehand but was provoked by a Croatian attack on
25 August 1991 on buffer zones previously established by TG-1. According to Borislav Ðuki, the
purpose of the attack was to lift the blockade along the Kijevo road, set up by the Croatian SJB in
Kijevo.402
169. The Catholic church in Kijevo was damaged during the attack, and was later destroyed.403
The evidence also shows that private houses were looted and torched.404
170. On 28 August 1991, TG-1 of the JNA 9th Corps also attacked the mixed Croat and Serb
village of Vrlika, located south of Knin near Kijevo.405 After the attack, an SJB of the SAO Krajina
MUP was established in Vrlika.406 Subsequently, members of this SJB indirectly participated in the
widespread looting by allowing lorries carrying looted goods to proceed towards Knin.407
171. On 16 September 1991, Drniš, which is located near Knin and at the time was 75% Croat,
was attacked by forces and artillery of TG-1 of the JNA 9th Corps.408 During the attack, and the
following days, the centre of Drniš was almost completely destroyed.409 Widespread looting was
399 Borislav Ðuki}, 20 Oct 2006, T. 9872.
400 Borislav Ðuki}, 20 Oct 2006, T. 9880.
401 Witness MM-003, 9 Mar 2006, T. 2030, 2032-2035; Witness MM-078, 24 May 2006, T. 4443.
402 Borislav Ðuki}, 20 Oct 2006, T. 9871-9873, 9875-9876; Milan Dragi{i}, 19 Sep 2006, T. 8655-8656. Milan Babi
testified that the residents of Kijevo had blocked the road, Milan Babi, 17 Feb 2006, T. 1551-1552. See also Ex. 105.
403 Milan Babi}, 3 Mar 2006, T. 1931; Witness MM-078, 24 May 2006, T. 4444; Borislav Ðuki, 19 Oct 2006, T. 9767,
20 Oct 2006, T. 9886; Ex. 106 (reporting that ZNG was deployed in the church).
404 Witness MM-078, 24 May 2006, T. 4434-4435; Borislav Ðuki}, 20 Oct 2006, T. 9885-9886. See also Ex. 496.
405 Milan Babi}, 17 Feb 2006, T. 1567; Witness MM-078, 24 May 2006, T. 4444; Borislav Ðuki}, 20 Oct 2006, T.
9887.
406 Witness MM-078, 24 May 2006, T. 4445.
407 Witness MM-078, 24 May 2006, T. 4445; Borislav Ðuki}, 20 Oct 2006, T. 9887-9888 (testifying that the JNA lifted
the Croatian siege of Vrlika and that the JNA did not participate in looting); Ex. 221.
408 Witness MM-078, 24 May 2006, T. 4446, 4450-4451; Borislav Ðuki, 20 Oct 2006, T. 9888, 9894-9895; Ex. 984,
pp 7-12. Two JNA military facilities were located outside of Drniš and were blocked by the Croatian forces, Borislav
Ðuki, 20 Oct 2006, T. 9888-9889. There was no Croatian SJB in Drniš, Witness MM-078, 24 May 2006, T. 4452.
409 Witness MM-078, 24 May 2006, T. 4450, 25 May 2006, T. 4542.
Case No. IT-95-11-T 63 12 June 2007
committed by members of the JNA and the MUP and by local citizens.410 Approximately 10-15
days after the attack, an SJB of the SAO Krajina MUP was set up in Drniš.411
172. Following these attacks, several larger clashes and attacks occurred in predominantly Croat
areas of the SAO Krajina. These will be more fully described below.
2. Hrvatska Dubica, Cerovljani and Ba}in
(a) Take-over of Hrvatska Kostajnica and Hrvatska Dubica
173. In 1990, Hrvatska Dubica, Cerovljani and Ba}in were mixed or predominantly Croat
villages in the Hrvatska Kostajnica municipality situated in north-eastern Croatia.412 In 1990,
Hrvatska Dubica had around 2,000 to 2,500 inhabitants.413 Cerovljani is situated about three to six
kilometres north of Hrvatska Dubica and in 1990 its population was some 500 people.414 Ba}in is
situated about three to five kilometres west of Hrvatska Dubica and in 1990 it had 200 to 500
inhabitants.415
174. In the area of Hrvatska Kostajnica, there was intensive fighting during August and
September 1991, which lasted until the beginning of October.416 In September 1991, Milan Marti}
went together with Colonel Dušan Smiljani}, Chief of Security of the JNA 10th Zagreb Corps, to
coordinate combat activities in relation to the “liberation of Kostajnica”.417
175. On 12 or 13 September 1991, Serb forces, including the SAO Krajina TO, took control over
Hrvatska Kostajnica.418 The special police unit of the SAO Krajina police at Dvor na Uni
participated and cooperated with the TO.419 Following the takeover of Hrvatska Kostajnica, the
410 Witness MM-078, 24 May 2006, T. 4450; Borislav Ðuki}, 20 Oct 2006, T. 9889-9890.
411 Witness MM-078, 24 May 2006, T. 4452.
412 Villages surrounding Hrvatska Dubica are Ba}in, Cerovljani, Predore (about eight kilometres from Hrvatska
Dubica), Slabinja, @ivaja. Directly adjacent to Hrvatska Dubica across the river Una on the side of BiH is Bosanska
Dubica, which in 1990 had approximately 10,000 inhabitants (about 40% Serbs, 45% Muslims and 500 Croats). @ivaja
(situated slightly north of Cerovljani and about eight to fifteen kilometres from Hrvatska Dubica) and Slabinja (ten to
fifteen kilometres west of Hrvatska Dubica) were predominantly Serb villages, Witness MM-022, 20 Mar 2006, T.
2278, 2361; Witness MM-025, 12 Jun 2006, T. 5410, 5422-5424; Ex. 265, pp 2-3; Nikola Dobrijevi, 10 Nov 2006, T.
10883-10884; Mijo Cipri, Ex. 274, p. 2; Ex. 23, Atlas p. 21. See also Ex. 301, p. 3; Ex. 1042, Tab 2; Ex. 1043, Tab 2,
DVD 1, pp 42-59 and DVD 2, pp 1-7; Ex. 1044.
413 Ex. 265, p. 2; Ex. 301, p. 2, in 1991, the population was 50% Croat and 38% Serb.
414 Ex. 265, p. 2. In 1991, 52.9% were Croats, and 39.5% were Serbs, Ex. 301, p. 3.
415 Witness MM-022, 20 Mar 2006, T. 2278; Ex. 265, p. 3; Mijo Cipri, Ex. 274, p. 2; Ex. 301, p. 1, also stating that
94.9% were Croat, and 1.5% were Serb.
416 Milan Babi, 20 Feb 2006, T. 1597-98; Ex. 1034, L0092283; Ex. 1042, Tab 2; Ex. 1043, Tab 2, DVD 2, pp 7-8; Ex.
1044.
417 Milan Babi}, 16 Feb 2006, T. 1441-1442. See also Ex. 206; Milan Babi}, 17 Feb 2006, T. 1532-1533.
418 Nikola Dobrijevi, 10 Nov 2006, T. 10873, 10878, 10882-10883. Nikola Dobrijevi testified that among 500 or 600
members of the TO, there were 111 Croats and a few percent of Muslims, Nikola Dobrijevi, 10 Nov 2006, T. 10881-
10882, 13 Nov 2006 T. 10980-10981; Antun Blaževi, Ex. 273, p. 2.
419 Ex. 568, p. 3; Nikola Dobrijevi, 13 Nov 2006, T. 10955. See also Ex. 957, p. 2, stating that as of 2 September 1991
“there are strong MUP forces in Dubica and [ita”.
Case No. IT-95-11-T 64 12 June 2007
operation continued in order to take over the rest of the villages along the axis between Kostajnica
and Novska, including the villages of Hrvatska Dubica, Cerovljani and Ba}in.420 A front line
between the SAO Krajina and Croatian forces was established from Sunja to Hrvatska Dubica and
further towards Novska.421 Following this operation, there were daily conflicts on the front line.422
(b) Hrvatska Dubica
176. In 1991, the Croatian MUP took over the SJB in Hrvatska Dubica.423 From mid-1991, ZNG
units were formed in Hrvatska Dubica.424 Around the same time, the Serb inhabitants started to
move out of Hrvatska Dubica.425
177. After the occupation of Hrvatska Kostajnica around 12 or 13 September, Hrvatska Dubica
was shelled from Hrvatska Kostajnica and from Bosanska Dubica, BiH.426 Subsequently, the ZNG
and Croatian MUP withdrew from Hrvatska Dubica and the surrounding villages and the civilian
inhabitants started to leave.427 After 13 September 1991, only about 60 Croats, mainly elderly and
women, remained in Hrvatska Dubica.428
178. An SAO Krajina TO force and a police force, including a unit of the Milicija Krajine
consisting of 30 policemen from the area, were set up in Hrvatska Dubica.429 Veljko “Velja”
Raunovi}, his son Stevo Raunovi} and Momilo Kovaevi were in charge of the Milicija
Krajine unit, which had a command post at the old school building in Hrvatska Dubica.430 There
420 Nikola Dobrijevi, 10 Nov 2006, T. 10883-10884; Antun Blaževi, Ex. 273, pp 2-3; Mijo Cipri, Ex. 274, pp 3-4;
Ex. 568, p. 4; Ex. 599, p. 5.
421 Nikola Dobrijevi, 10 Nov 2006, T. 10884-10886. According to Witness MM-022, the front line was between
Jasenovac and Sunja along the Sava River, Witness MM-022, 20 Mar 2006, T. 2350-2351.
422 Nikola Dobrijevi, 10 Nov 2006, T. 10886.
423 Josip Josipovi, 6 Apr 2006, T. 3338.
424 Witness MM-022, 20 Mar 2006, T. 2281-2283, 2324. There were about four units, each made up of four to five men,
who did not have uniforms. The units had one firearm between them and some carried personal hunting rifles. The
headquarters was in Hrvatska Dubica, close to the bridge between Hrvatska Dubica and Bosanska Dubica, Ex. 265, p.
5; Josip Josipovi, 6 Apr 2006, T. 3297-3298, 3348.
425 Witness MM-022, 20 Mar 2006, T. 2284, 2325, 2330; Ana Kesi, 21 Mar 2006, T. 2385; Josip Josipovi, 6 Apr
2006, T. 3304-3305, 3333-3334; Witness MM-025, 12 Jun 2006, T. 5421.
426 Tomislav Kozaranin, Ex. 828, p. 2. See also Antun Blaževi, Ex. 273, p. 2.
427 Witness MM-022, 20 Mar 2006, T. 2281, 2286-2287, 2289; Josip Josipovi, 6 Apr 2006, T. 3298, 3346-3347;
Witness MM-025, 12 Jun 2006, T. 5414, 5421, Ex. 265, p. 4; Tomislav Kozaranin, Ex. 828, p. 2.
428 Witness MM-022, 20 Mar 2006, T. 2292-2293; Ana Kesi, 21 Mar 2006, T. 2385-2386; Witness MM-025, 12 Jun
2006, T. 5421-5422, Ex. 265, p. 4.
429 Witness MM-022, 20 Mar 2006, T. 2289-2290, 2293, 2316, 2336, 2350; Josip Josipovi, 6 Apr 2006, T. 3297-3298.
430 Witness MM-022, 20 Mar 2006, T. 2291, 2297-2298, 2308; Josip Josipovi, 6 Apr 2006, T. 3309-3310, 3314. Other
Milicija Krajine members were Mirko Sarac, Milan Petrovi, Ðore Ratkovi, Ðuro Jerini, Marjan Prvalo, Mladen
Pozar, Rajko Paukovi, Dubravko Paukovi, Mico Tepi, and Branko Kotur, Josip Josipovi, 6 Apr 2006, T. 3309,
3318.
Case No. IT-95-11-T 65 12 June 2007
were “reservists” in @ivaja under the command of Stevo Borojevi.431 The reservists wore old
military olive-green-grey uniforms.432
179. On 15 September 1991, the JNA, the TO and the police surrounded Predore, approximately
8 kilometres from Hrvatska Dubica, and proceeded to search houses.433 They rounded up people
and took six or seven, including Josip Josipovi, a ZNG member, to the Sava river to reconnoitre
the area using them as a live shield, and then returned them to the village.434 Josip Josipovi} and his
cousin Mi}o ]ori} were then taken to Dubika Brda where they were detained for one month.435
Thereafter, they were transferred to the school building in Hrvatska Dubica, which was used as a
command post by Serb forces, including the TO and the police.436 Present at the school building
were Momilo Kovaevi} and Veljko Radjunovi}, who issued orders and participated in the
beatings of detainees at the school building.437 Josip Josipovi} identified Mom~ilo Kovaevi},
Stevo Radjunovi}, Mirko Šarac, Milan Petrovi}, Djordje Ratkovi}, Djuro Jerini}, Marjan Prvalo
and Miša Pozar as the soldiers guarding them.438 Josip Josipovi} testified that he overheard the
soldiers discussing amongst themselves and understood them as saying that they were receiving
orders from Milan Marti}.439
180. After the take-over of Hrvatska Dubica until mid-October 1991, some houses were torched
in Hrvatska Dubica: approximately eight belonged to Croats, two belonged to couples of mixed
marriages, and one belonged to a Serb.440 There was also widespread looting, committed by the
JNA, the TO, the Milicija Krajine, and local Serbs.441 Detained Croats were also forced to loot.442
All the houses of people who had fled, both Croats and Serbs, were looted and cars, tractors, tools,
431 Witness MM-022, 20 Mar 2006, T. 2289, 2293.
432 Witness MM-022, 20 Mar 2006, T. 2293. The Serb forces in the area at the time wore a variety of insignia, including
the five-pointed star and emblems with the inscription “SAO Krajina”, with “Milicija Krajine”, with a double-headed
eagle and crossed swords, with four Cyrillic “S”. It was not possible to tell to which unit soldiers belonged. There is
also evidence of soldiers with patches reading “Special Police Units”, “Blue”, and “Ugljevik”, worn by Serbs who came
from BiH, Josip Josipovi, 6 Apr 2006, T. 3299-3300, 3300-3303, 3353, 7 Apr 2006, T. 3382-3383; Ex. 266; Ex. 288.
433 Josip Josipovi, 6 Apr 2006, T. 3294, 3309, 3349-3350.
434 Josip Josipovi, 6 Apr 2006, T. 3310, 3350.
435 Josip Josipovi}, 6 Apr 2006, T. 3310-3311. The Trial Chamber considers that the Defence has not been put on notice
regarding a detention facility in Dubika Brda and will not consider this evidence for a conviction, see supra section I
C.
436 Josip Josipovi}, 6 Apr 2006, T. 3311, 3314.
437 Josip Josipovi}, 6 Apr 2006, T. 3314.
438 Josip Josipovi}, 6 Apr 2006, T. 3318, 7 Apr 2006, T. 3375.
439 Josip Josipovi, 6 Apr 2006, T. 3356.
440 Witness MM-022, 20 Mar 2006, T. 2295-2296.
441 Witness MM-022, 20 Mar 2006, T. 2293-2295, 2336.
442 Josip Josipovi, 6 Apr 2006, T. 3312-3313.
Case No. IT-95-11-T 66 12 June 2007
machinery, furniture and cattle were stolen.443 Serbs who had withdrawn from the areas of Pakrac
and Lipik moved into the houses of the people who had fled.444
181. In the morning on 20 October 1991, a truck bearing the insignia “Milicija SAO Krajina”
with Veljko Raunovi}, Radovan [o{a and a man nicknamed “Janjeta” came to Ana Kesi}’s house
and told her and her sister-in-law Katarina to come with them and attend a meeting.445 Thereafter
the truck picked up several other civilians and brought them to the fire station in Hrvatska
Dubica.446 On the same date, Tomislav Kozaranin was told by Branko Majstorovi, who was
wearing a JNA uniform, to go to the fire station to attend a meeting, which he did.447 A second bus
arrived at the fire station after ten minutes bringing another 20 people.448 In total, there were then
more than 40 people in the fire station but more people arrived later.449 They were mostly Croats,
although there were also Serbs and Muslims.450
182. The people in the fire station were guarded by Katarina “Kaa” Peki and Stevo Raunovic,
who were armed and wore JNA uniforms, and a man with the last name Kovaevi.451 The
detainees were not free to leave.452 Every two or three hours there was a change of guard, and the
detainees’ names would be read out from a list to check no one was missing.453 Over the course of
the day, eleven of the detainees were released or managed to escape, including Tomislav
Kozaranin.454
183. Several witnesses testified to having heard, including from Serb soldiers in Hrvatska
Dubica, that the people detained in the fire station on 20 October 1991 were taken the following day
443 Witness MM-022, 20 Mar 2006, T. 2294-2296; Ana Kesi}, 21 Mar 2006, T. 2383. See also Josip Josipovi}, 6 Apr
2006, T. 3313.
444 Witness MM-022, 20 Mar 2006, T. 2296.
445 Witness MM-022, 20 Mar 2006, T. 2298-2301; Ana Kesi, 21 Mar 2006, T. 2388-2390, Ex. 258, p. 2.
446 Those who were picked up included Vera Frankovi, Veronika Stankovi, Pavle Kropf, Bara Kropf and her
daughter, an 80-year old man nicknamed “Brico”, Danica Krizmanovi, Ruza Dikuli, Sofija Dikuli, and Nikola
Lonar, Witness MM-022, 20 Mar 2006, T. 2299-2301; Ana Kesi, 21 Mar 2006, T. 2388-2389, Ex. 258, p. 2. The
Trial Chamber considers that Vera Stankovi, born 1915, is Veronika Stankovi in Annex I to the Indictment, that Pavle
Kropf, aged 60, is Pavao Kropf in Annex I, that Bara Kropf, aged 60, is Barbara Kropf in Annex I, and that Nikola
Lonar is Nikola Lonarevi in Annex I. See also Josip Josipovi, 6 Apr 2006, T. 3324; Ex. 1042, Tab 2; Ex. 1043, Tab
2, DVD 1, pp 49-53.
447 Tomislav Kozaranin, Ex. 828, p. 2.
448 Witness MM-022, 20 Mar 2006, T. 2301.
449 Witness MM-022, 20 Mar 2006, T. 2301-2302. See also Ex. 380, pp 10, 12.
450 Witness MM-022, 20 Mar 2006, T. 2303.
451 Witness MM-022, 20 Mar 2006, T. 2343-2344; Tomislav Kozaranin, Ex. 828, p. 3; Ex. 380, pp 11-12.
452 Tomislav Kozaranin, Ex. 828, p. 3
453 Witness MM-022, 20 Mar 2006, T. 2302, 2343-2344. Two Serbs, Mio Kesonja and Ðuro Kesonja, made a list of all
the people who remained in Hrvatska Dubica during the period of their occupation, Tomislav Kozaranin, Ex. 828, pp
3-4.
454 Those released were three Serbs, one Muslim and seven Croats whose Serb neighbours or friends contacted the
guards, Witness MM-022, 20 Mar 2006, T. 2304-2306, 2360; Ana Kesi, 21 Mar 2006, T. 2390, 2393-2394, Ex. 258,
pp 2-3; Tomislav Kozaranin, Ex. 828, p. 3; Ex. 380, pp 11-12.
Case No. IT-95-11-T 67 12 June 2007
to a place called Kre~ane near Ba}in where they were killed.455 The bodies of the following 32
civilians, who the evidence shows had been detained in the fire station on 20 October 1991, were
subsequently exhumed from several graves, including one at Kre~ane near Ba}in:456 Katarina
Alavan~i}, Terezija Alavan~i}, Josip Antolovi},457 Marija Batinovi},458 Mara ]ori},459 Mijo
]ovi},460 Marija Deli}, Ana Dikuli}, Ru`a Dikuli}, Sofija Dikuli}, Antun \uki}, Marija “Maca”
\uki},461 Ana Feri}, Juraj Feri}, Kata Feri}, Filip Juki}, Marija Juki}, Antun Krivaji}, Barbara
Kropf, Pavao Kropf, Ivan Kuli{i},462 Nikola Lon~ari}, Antun Mucavac,463 Ivo Pezo, Sofija Pezo,
Anka Piktaja,464 [tjepan Sabljar, Veronika Stankovi}, Antun [vra~i}, Marija [vra~i}, Ana Tepi},465
and Katarina Vladi.466 Moreover, the evidence shows that the following 9 civilians, whose bodies
have not been recovered, were detained in the fire station on 20 October 1991 and killed the
following day at Kreane near Bain: [tjepan Dikuli}, Antun \urinovi}, Jozo Karanovi}, Reza
Krivaji}, Du{an Tepi}, Ivan Trnini}, Ivo Trnini}, Kata Trnini} and Terezija Trnini}.467 Although
their bodies have not been recovered, in light of the fact that they were detained in the fire station at
the same time as the above-mentioned 32 persons who were subsequently killed, the Trial Chamber
considers that it has been established beyond reasonable doubt that they were killed.468 All of the
above victims were Croats, except for Ana Tepi} and Du{an Tepi}, who were Serbs.469
184. After Tomislav Kozar~anin fled from the fire station, he hid for seven or eight days. When
he returned to his house, he was picked up by Ðuro Majstorovi and two others with the same
surname. They wore JNA uniforms and carried automatic rifles. He was handcuffed, blindfolded
455 Witness MM-022, 20 Mar 2006, T. 2310-2311; Josip Josipovi, 6 Apr 2006, T. 3324-3325, 3354; Ana Kesi, 21
Mar 2006, T. 2381-2382, Ex. 258, p. 3; Tomislav Kozaranin, Ex. 828, p. 3. See also Ex. 265, p. 6; Ex. 257.
456 In 1997, 56 bodies were exhumed from a mass grave in Kreane near Ba}in, Davor Strinovi, 12 Apr 2006, T. 3669;
Ana Kesi}, Ex. 258, p. 3; Tomislav Kozaranin, Ex. 828, p. 3; Antun Blaževi, Ex. 273, p. 4; Mijo Cipri, Ex. 274, p. 4;
Ex. 301, p. 1; Ex. 380; Ex. 1042, Tab 2; Ex. 1043, Tab 2, DVD 2, pp 5-7; Ex. 1044.
457 Ex. 315.
458 Ex. 316.
459 Ex. 310; Josip Josipovi}, 6 Apr 2006, T. 3324-3325.
460 Ex. 317.
461 Ex. 308.
462 There is evidence that an individual called “Ivo Kuliša” remained in Hrvatska Dubica, Tomislav Kozaranin, Ex.
828, p. 2. However, the Trial Chamber cannot conclude that this person is the same person as Ivan Kuli{i}.
463 Ex. 307.
464 Ex. 314.
465 Ex. 306.
466 With respect to these 32 individuals, see Ex. 257 (listing all of them except for Marija Batinovi}); Witness MM-022,
20 Mar 2006, T. 2312-2313; Ex. 302, Ex. 323. Ex. 302 indicates that all of them except for Marija Deli} and Ivo Pezo,
were exhumed from a mass grave in Kre~ane near Ba}in. Ex. 323 identifies their causes of death as either gunshot
wounds, trauma wounds or blast wounds, except for Ivan Kuli{i}, for whom Ex. 323 states the cause of death as
unknown. Ex. 257 also lists FNU Juki}, FNU Krni} and FNU [esti} as having been detained in the fire station. There is
no further evidence concerning these persons and in view of this lack of evidence the Trial Chamber is unable to
identify them. Having regard to the Trial Chamber’s finding as to the interpretation of the Indictment (see supra section
I C) the Trial Chamber will not make any further finding regarding these persons.
467 Ex. 257; Ex. 302; Ex. 323.
468 In this respect, the Trial Chamber notes the evidence of Mijo Cipri that there is a possibility that bodies were
washed away from the mass grave at Kreane near Bain as that grave is on the bank of the river Una, Mijo Cipri}, Ex.
274, 7-8 Nov 2000, p. 4. See also Ex. 1042; Ex. 1043, DVD 2, pp 5-7.
Case No. IT-95-11-T 68 12 June 2007
and beaten, after which he was taken in their car to an abandoned house. He was beaten throughout
the journey, which resulted in broken ribs, and his legs were cut with a knife. They then drove him
to another location, removed his handcuffs and abandoned him. A Serb later took him to the SJB in
Hrvatska Dubica, where he described what had happened to him.470
185. After Ana Kesi} and her sister-in-law Katarina were released from the fire station, they
heard from one of their relatives, Milan [esti}, that three neighbours had been killed and that he dug
graves for them.471 There is no other evidence as to these three persons.472 The Trial Chamber finds
that the evidence is insufficient to establish beyond reasonable doubt that these three persons were
killed.473
(c) Cerovljani
186. Following the advice of the Croatian police and ZNG, most of the residents of Cerovljani
left the village in August and early September 1991, after which only elderly people remained.474
187. On 13 and 21 September 1991, Serbs came to Cerovljani and burnt Croat houses.475 The
Serbs who came on 21 September were armed and about fifty in number, the majority wearing
civilian clothes, although a few wore military uniforms.476 The commander was Nikola Begovi
from Babin Rijeka near Hrvatska Kostajnica and most of the members were from Živaja, Šaš and
the surroundings of Hrvatska Dubica.477 On 24 September, the armed Serbs came again in the
afternoon and shooting could be heard; that night three dead bodies were found.478 On the same
date, the houses of \uro Petrovi}, Nikola Dragocaja}, Anka Bari{i} and @eljko Blinja were torched
469 Witness MM-022, 20 Mar 2006, T. 2313.
470 Tomislav Kozaranin, Ex. 828, p. 3.
471 Ana Kesi}, Ex. 258, p. 3.
472 These three were Luka Krni}, [tef Uska and FNU Batinovi}, Ana Kesi, 21 Mar 2006, T. 2381, Ex. 258, p. 3. Annex
I to the Indictment contains two individuals with the last name Batinovi}, however the Trial Chamber cannot find that
this individual is the same person as either of those mentioned in Annex I.
473 There is evidence that Milan [esti} disappeared from Hrvatska Dubica, Ana Kesi, 21 Mar 2006, T. 2381, Ex. 258,
p. 3. See also Ex. 302, p. 4. Documentary evidence also shows that Mijo Mi{i} disappeared from Hrvatska Dubica, Ex.
302, p. 4. Milan [esti} and Mijo Mi{i} are mentioned in Annex I to the Indictment as victims killed in Ba}in and
surroundings. However, in view of the evidence regarding these persons provided to the Trial Chamber (Ex. 302, Ex.
323), the Trial Chamber cannot conclude that these individuals are dead or were killed. Maca Dikuli} (age 86) is listed
in Annex I to the Indictment. There is evidence that she remained in Hrvatska Dubica after the occupation, Ana Kesi},
Ex. 258, p. 3; Tomislav Kozaranin, Ex. 828, p. 2. However, no other information is provided to the Trial Chamber in
relation to this person (Ex. 302, Ex. 303). The Trial Chamber cannot conclude that this individual is dead or was killed.
474 Antun Blaževi, Ex. 273, p. 3.
475 Antun Blaževi, Ex. 273, p. 3. On 13 September 1991, “the Serbs” burnt three Croatian houses which were on the
@ivaja side of Cerovljani. On 21 September, they burnt three more, Antun Blaževi}, Ex. 273, p. 3.
476 Antun Blaževi, Ex. 273, p. 3.
477 Antun Blaževi, Ex. 273, p. 3.
478 The victims were Barbara Blinja, Nikola Liki, and Ðuro Petrovi, Antun Blaževi, Ex. 273, pp 3-4. The Trial
Chamber finds that these victims were killed by armed Serbs from Živaja under the command of Nikola Begovi. The
Trial Chamber notes that Barbara Blinja Nikola Liki, and Ðuro Petrovi are not listed in Annex I to the Indictment.
The Trial Chamber considers that the Defence has not been on notice regarding these killings and will therefore not
enter a conviction based on them. See supra section I C.
Case No. IT-95-11-T 69 12 June 2007
by the Serbs and rocket launchers were fired at the Catholic church which damaged the bell
tower.479 Some of the armed Serbs also stole the car of Antun Bla`evi}.480
188. The evidence shows that some time in October 1991, unidentified armed Serbs gathered the
remaining civilians in Cerovljani into the local community centre under the pretext of having a
meeting, following which they were detained for the night. The next morning they were taken
away.481 The bodies of Marija Antolovi,482 Ana Blinja,483 Josip Blinja,484 Katarina Blinja,485
Andrija Liki,486 Ana Lonar,487 and Kata Lonar (born 1906)488 were subsequently discovered in
the mass grave in Kreane near Bain.489 Another woman also by the name of Kata Lonar, who
was a Croat, remained in the village throughout the occupation because she had “connections with
the Serbs”.490 The bodies of Nikola Blinja, Antun Lonar and Nikola Zaoevi, who were also
rounded up, have not been recovered.491 In relation to Nikola Zaoevi, the Trial Chamber notes
that he is not mentioned in Annex I to the Indictment and recalls its interpretation of the Indictment
in this respect.492 Moreover, the Trial Chamber considers that the Defence has not been on notice
concerning this victim and the Trial Chamber is therefore unable to consider this victim further.
With regard to Nikola Blinja and Antun Lonar, in light of the evidence that they were detained
with the other persons named above, all of whom were subsequently killed, the Trial Chamber finds
it established beyond reasonable doubt that also they were killed at the same time.
(d) Ba}in and surroundings
189. Following the take-over of Bain, all the inhabitants left, with the exception of around thirty
mostly elderly civilians, among whom were the following 22 persons: @eljko Abaza, Matija
Barunovi}, Antun Bunjevac, Tomo Bunjevac, Antun ^ori}, Barica ^ori}, Josip ^ori} (30 years
old), another man by the name of Josip ^ori} (60 years old), Vera ^ori}, Nikola Felbabi}, Grga
Glavini}, Anka Josipovi}, Ankica Josipovi}, Ivan Josipovi}, Josip Karagi}, Kata Lon~ar (born
1931), [tjepan Lon~ar, Antun Ordani}, Luka Ordani}, Antun Pavi}, Matija Pavi}, and Nikola
479 Antun Blaževi}, Ex. 273, p. 3.
480 Antun Blaževi}, Ex. 273, p. 3.
481 Antun Blaževi, Ex. 273, p. 4.
482 Antun Blaževi, Ex. 273, p. 4; Ex. 302; Ex. 311; Ex. 323, p. 4.
483 Antun Blaževi, Ex. 273, 23 Jun 2003, p. 1; Ex. 302; Ex. 323, p. 4.
484 Antun Blaževi, Ex. 273, p. 4; Ex. 302; Ex. 323, p. 4.
485 Antun Blaževi, Ex. 273, 23 Jun 2003, p. 1; Ex. 302; Ex. 323, p. 4.
486 Antun Blaževi, Ex. 273, p. 4; Ex. 302; Ex. 309; Ex. 323, p. 5.
487 Antun Blaževi, Ex. 273, p. 4; Ex. 302; Ex. 323, p. 5.
488 Antun Blaževi, Ex. 273, p. 4; Ex. 302; Ex. 313; Ex. 323, p. 5.
489 Antun Blaževi, Ex. 273, p. 4, 23 Jun 2003, p. 1; Ex. 302.
490 Antun Blaževi, Ex. 273, p. 4.
491 Antun Blaževi, Ex 273, p. 4; Ex. 302 (regarding Nikola Blinja and Antun Lonar).
492 See supra section I C.
Case No. IT-95-11-T 70 12 June 2007
Vrpoljac.493 The evidence shows that @eljko Abaza was detained in mid-October in a toilet in the
old school building in Hrvatska Dubica, that he was later killed by members of the Milicija Krajine,
and that his body was thrown into the Una river by those members.494 The evidence further shows
that the bodies of Antun Bunjevac and Tomo Bunjevac were exhumed from individual graves in
Hrvatska Dubica.495 There is no exhumation evidence concerning the other persons listed above.
The Trial Chamber notes the evidence that in October 1991 all of the people who remained in the
village were taken to Kre~ane near Bain, where they were killed along with a number of others
who were brought from Cerovljani and Hrvatska Dubica.496
190. In light of the evidence that Željko Abaza was killed in Hrvatska Dubica and not buried but
thrown into the Una river, and that Antun Bunjevac and Tomo Bunjevac were buried in Hrvatska
Dubica, the Trial Chamber cannot conclude that the above-named persons were killed as one group.
However, the Trial Chamber takes particular note of the situation in the area in October 1991 and
that there is no evidence of fighting going on in Bain proper at this time. The Trial Chamber
further recalls the evidence that numerous killings of persons from Hrvatska Dubica, Cerovljani and
Bain were committed in Kre~ane near Bain around 21 October 1991. In this connection, the Trial
Chamber recalls that it visited Bain and Kre~ane during the site visit to Croatia, and notes that
Kre~ane is on the outskirts of Bain and less than a ten-minute walk from the Catholic church in
Bain.497 In light of the above, and the totality of the evidence, the Trial Chamber therefore
considers that the evidence proves beyond reasonable doubt that the above-named persons were
killed around October 1991, albeit not necessarily on one occasion or at one and the same location.
191. Annex I to the Indictment lists Ivo Barunovi, Nikola Barunovi, Kata Bunjevac, Vera
Juki, Terezija Kramari, Mijo Krni, Marija Mila{inovi, Marija [esti and Soka Volarevi as
having been killed in or around Bain. The evidence shows that Vera Juki, Terezija Kramari,
Mijo Krni, Marija Mila{inovi, Marija [esti and Soka Volarevi were exhumed from the mass
493 Mijo Cipri, Ex. 274, p. 3.
494 Josip Josipovi was detained together with Željko Abaza, Antun Kne‘evi} and Idriz auševi}. Idriz auševi} was
killed by persons under Veljko Raunovi’s and Momilo Kovaevi’s command at the old school building in Hrvatska
Dubica. Three days later, Željko Abaza and Ante Kne‘evi} had their throats slit and Josip Josipovi} and Mio ori
were forced by Stevo Raunovi, Momilo Kovaevi, Mirko Sarac, Milan Petrovi, Ðore Ratkovi, Ðuro Jerini,
Marjan Prvalo, and Mladen Pozar to load the dead bodies of Željko Abaza and Antun Kne‘evi} onto a truck.
Subsequently, the truck drove the three of them and the two bodies to the river and the bodies were thrown into the
water by the same Serbs, Josip Josipovi}, 6 Apr 2006, T. 3315-3320, 7 Apr 2006, T. 3375-3377. The Trial Chamber
finds that these three individuals were killed. However, none of these victims are mentioned in Annex I to the
Indictment. The Trial Chamber considers that the Defence has not been on notice with regard to these killings and will
not consider this evidence for a conviction. In this regard, the Trial Chamber recalls its findings on the interpretation of
the indictment, see supra section I C. See also Mijo Cipri, Ex. 274, p. 3; Ex. 1042, Tab 2; Ex. 1043, Tab 2, DVD 1, pp
46-48.
495 Ex. 302; Ex. 323.
496 Mijo Cipri, Ex. 274, p. 3.
497 See Ex. 1043, DVD 2, pp 5-6; Ex. 1044, pp 5, 8-9.
Case No. IT-95-11-T 71 12 June 2007
grave in Kreane near Bain.498 Moreover, the evidence shows that Nikola Barunovi was exhumed
from the mass grave at Višnjevaki Bok, where Ivo Pezo, who had previously been detained at the
fire station in Hrvatska Dubica, was also exhumed.499 Furthermore, Ivo Barunovi was exhumed
from an individual grave in Bain.500 With regard to Kata Bunjevac, the evidence shows that she
went missing from Kostriima, however there is no further evidence in relation to her.501 The Trial
Chamber concludes that the above-mentioned victims were killed, except for Ivo Barunovi and
Kata Bunjevac, in relation to whom the Trial Chamber finds that the evidence is insufficient to
establish beyond reasonable doubt that they were killed.
192. With respect to the following 22 individuals listed in Annex I to the Indictment, no evidence
has been provided to the Trial Chamber: Sofija Bari}, Marija Barunovi}, Anka Batinovi}, Danica
Ðuki}, Kata Ðuki}, Liza Ðuki}, Iva Juki}, Marija Juratovi}, Janja Juri}, Marija Krni}, [tefo Krni},
Ivica Kuli{i}, Mijo Lazi}, Anka Liki}, Antun Liki}, Jelka Liki}, Antun Lon~arevi}, Janja Luji},
Dragica Matijevi}, Mara Mucavac, Jula [esti} and Pero Vukovi}.502 The Trial Chamber therefore
finds that there is insufficient evidence to establish beyond reasonable doubt that these individuals
were killed. With regard to Nevenka Perkovi}, Vlado Perkovi} and Zoran Perkovi}, who are also
listed in Annex I to the Indictment, the evidence shows that they were found alive.503
(e) Destruction in Cerovljani, Hrvatska Dubica, and Bain after December 1991504
193. Prior to August 1993, a Catholic church in Hrvatska Dubica was razed to the ground and its
foundations were removed.505 The Orthodox church remained intact and was still standing in
1995.506 Towards the end of 1992 and beginning of 1993, looting and torching of houses was
carried out by local Serbs.507 By 1995, many houses in Hrvatska Dubica belonging to Croats had
been destroyed.508 The part of the village which contained both Serb and Croat houses remained
intact.509 By 1995, most houses had been looted.510
498 Ex. 302. Regarding Soka Volarevi, see also Ex. 312; Ex. 323.
499 Ex. 302. Ex. 323 indicates that the cause of death of Nikola Barunovi} was a blast wound and that the cause of death
of the other victims was gunshot wounds.
500 Ex. 302; Ex. 323, providing that the cause of death is unknown.
501 Ex. 302; Ex. 323.
502 Ex. 302, pp 2-4, indicating that there is no information on these individuals.
503 Ex. 302, p. 4; Ivan Gruji}, 10 Apr 2006, T. 3476.
504 The Trial Chamber recalls that the period governing the Indictment as to Counts 12 to 14 is 1 August 1991-31
December 1992, Indictment, para. 47.
505 Witness MM-022, 20 Mar 2006, T. 2365; Ana Kesi}, 21 Mar 2006, T. 2383. See also Mijo Cipri}, Ex. 274, p. 3; Ex.
1042, Tab 2; Ex. 1043, Tab 2, DVD 1, pp 53-54; Ex. 1044.
506 Ana Kesi}, 21 Mar 2006, T. 2383. See also Ex. 1042, Tab 2; Ex. 1043, Tab 2, DVD 1, pp 54-59; Ex. 1044.
507 Tomislav Kozar~anin, Ex. 828, p. 4.
508 Ana Kesi}, 21 Mar 2006, T. 2383, Ex. 258, p. 3; Witness MM-022, 20 Mar 2006, T. 2361; Mijo Cipri}, Ex. 274, p.
3.
509 Mijo Cipri}, Ex. 274, pp 3-4.
510 Witness MM-022, 20 Mar 2006, T. 2318; Tomislav Kozar~anin, Ex. 828, p. 4.
Case No. IT-95-11-T 72 12 June 2007
194. There is evidence that by 1995, Croat houses in Cerovljani had been burnt or blown up, and
that the Catholic church had been destroyed.511
195. There is evidence that by 1995, half of the houses in Ba}in were destroyed or torched.512
The Catholic church in Ba}in had been completely destroyed.513 Many houses in the surrounding
villages suffered damage, and the village of Predore was razed to the ground.514
3. Saborsko area
196. Saborsko is located in north-western Croatia and stretches seven kilometres along the
Korenica-Ogulin road, which goes through Plitvice, Poljanak, Saborsko, Li~ka Jasenica, Pla{ki, and
Josipdol before reaching Ogulin.515 Purely or predominantly Croat villages were located south of
Saborsko near the Plitvice Lakes,516 whereas Serb villages, such as Plaški and Lika Jasenica, were
located to the north of Saborsko.517
(a) Municipality of Plaški
197. In 1990, Pla{ki was within the municipality of Ogulin.518 Following a referendum, Pla{ki
formed its own municipality and joined the SAO Krajina. Nikola Medakovi} became the first
president of the new municipality.519 Plaški municipality comprised inter alia the Serb villages of
Vojnovac, Plaški, Blata and Lika Jasenica and was surrounded by Croat villages.520
198. Following the armed clash in Plitvice in March 1991, a split occurred in the Plaški SJB,
whereby policemen of Croat origin left the SJB and were replaced with Serb policemen from the
511 Witness MM-022, 20 Mar 2006, T. 2362-2363; Antun Blaževi}, Ex. 273, p. 4; Mijo Cipri}, Ex. 274, p. 3. See also
Ex. 1042, Tab 2; Ex. 1043, Tab 2, DVD 2, pp 1-2; Ex. 1044.
512 Witness MM-022, 20 Mar 2006, T. 2362; Mijo Cipri}, Ex. 274, p. 3.
513 Mijo Cipri}, Ex. 274, p. 3.
514 Witness MM-022, 20 Mar 2006, T. 2362.
515 Ex. 22, Map 8; Ex. 23, p. 19; Marko Vukovi, 24 Mar 2006, T. 2610; Vlado Vukovi, 27 Mar 2006, T. 2655, 2710;
Witness MM-037, 28 Mar 2006, T. 2797; Nikola Medakovi, 9 Oct 2006, T. 8961; Ana Bi}ani}, Ex. 276, p. 2. See also
Ex. 1042, Tab 2; Ex. 1043, Tab 2, DVD 2, pp 30-41 and DVD 3, pp 1-10; Ex. 1044.
516 Such as Serti Poljana and Poljanak, Marko Vukovi, 24 Mar 2006, T. 2568.
517 Other Serb villages in this area were Blata, Plavca Draga, Haski, Latin, and Vojnovac, Marko Vukovi, 24 Mar
2006, T. 2568; Witness MM-037, 28 Mar 2006, T. 2747; Nikola Medakovi, 9 Oct 2006, T. 8946. There were JNA
barracks and a large fuel depot in Lika Jasenica, Vlado Vukovi, 27 Mar 2006, T. 2655; Marko Vukovi, 24 Mar 2006,
T. 2574, 2605; Witness MM-037, 28 Mar 2006, T. 2751-2752; Nikola Medakovi, 9 Oct 2006, T. 8972.
518 Witness MM-037, 28 Mar 2006, T. 2746-2747; Nikola Medakovi, 9 Oct 2006, T. 8945-8947, 10 Oct 2006, T. 9086.
519 Witness MM-037, 28 Mar 2006, T. 2747-2748, Ex. 268, T. 11570, 11572; Nikola Medakovi, 9 Oct 2006, T. 8948,
10 Oct 2006, T. 9055.
520 The Croat villages included Slunj, Ogulin, the area of Stajnica, Lipice, and Saborsko, Witness MM-037, 28 Mar
2006, T. 2746-2748, 2770-2771; Nikola Medakovi, 9 Oct 2006, T. 8975-8976, 10 Oct 2006, T. 9046.
Case No. IT-95-11-T 73 12 June 2007
area.521 After this, the SJB consisted of 10 to 15 employees and the Chief of the SJB was Du{an
Lataš.522
199. During the spring and early summer of 1991, a unit of the Milicija Krajine was set up in
Plaški following training at Golubi. Nikola Medakovi, who had also undergone the training,
commanded the unit, which at its fullest capacity consisted of 50 policemen.523 The members of the
unit called themselves “Marti’s Police”.524 In September 1991, a TO Brigade was established in
Plaški into which members of the Milicija Krajine unit were transferred.525
200. Following the armed clash in Plitvice and through the summer of 1991, both Serb and Croat
forces set up roadblocks on the road from Saborsko through Li~ka Jasenica to Ogulin.526 After the
summer 1991, the road was closed by the Croatian MUP which set up barriers in Josipdol to the
north of Plaški and Saborsko to the south, which resulted in a blockade of Plaški as well as the JNA
training grounds in Slunj.527 There were neither telephone lines nor electricity, nor basic necessities,
such as food or medicine.528
(b) Lipovaa
201. Lipova~a was in the municipality of Slunj, approximately 25 kilometres from Saborsko and
18 kilometres from the town of Slunj and the former training ground of the JNA 5th Military District
521 The reason for the split was that the policemen of Croat ethnicity refused to sign a pledge of allegiance to the SAO
Krajina, Marko Vukovi, 24 Mar 2006, T. 2570-2571; Vlado Vukovi, 27 Mar 2006, T. 2653; Nikola Medakovi, 10
Oct 2006, T. 9094; Witness MM-037, Ex. 268, T. 11569, 11616. Regarding the clash in Plitvice, see supra para. 132.
522 Witness MM-037, 28 Mar 2006, T. 2749, 2751, 29 Mar 2006, T. 2821, Ex. 268, T. 11568-11569; Nikola
Medakovi, 9 Oct 2006, T. 8959, 8971, 8973.
523 Nikola Medakovi, 9 Oct 2006, T. 8965-8966, 8970, 10 Oct 2006, T. 9051, 9054; Witness MM-037, 28 Mar 2006,
T. 2748, 2804, Ex. 268, T. 11569-11570, 11572.
524 Witness MM-037, 28 Mar 2006, T. 2749, Ex. 268, T. 11570; Ex. 507, p. 2.
525 Nikola Medakovi, 10 Oct 2006, T. 9054. The evidence is unclear as to whether all members of the Milicija Krajine
unit became part of the TO Brigade at this point in time. Nikola Medakovi testified that 15-20 Milicija Krajine
members refused to join the TO Brigade and established a group of their own under the command of Rade Milanovi.
Eventually, though it is unclear when, this group was subsumed “in other units”, Nikola Medakovi, 10 Oct 2006, T.
9054, 9058-9070. The TO had semi-automatic rifles, machine-guns and olive-drab uniforms, Nikola Medakovi, 10 Oct
2006, T. 9112-9113; Witness MM-037, 28 Mar 2006, T. 2787-2788, Ex. 268, T. 11577-11579; Ana Bi}ani}, Ex. 276, p.
2. By the summer of 1991, there were Serb forces including police, TO and JNA, in both Pla{ki and in Plitvice, on both
sides of the villages of Saborsko, Vukovi}i and Poljanak, Nikola Medakovi, 10 Oct 2006, T. 9047.
526 Vehicles and passengers were searched and communications in the area were affected, Marko Vukovi, 24 Mar
2006, T. 2569, 2571, 2630; Vlado Vukovi, 27 Mar 2006, T. 2656, 28 Mar 2006, T. 2722; Witness MM-037, 28 Mar
2006, T. 2758-2759, Ex. 268, T. 11567-11568, 11588, 11617; Nikola Medakovi, 9 Oct 2006, T. 8974, 10 Oct 2006, T.
9044, 9120; Ana Bi}ani}, Ex. 276, p. 2.
527 Vlado Vukovi, 27 Mar 2006, T. 2694; Nikola Medakovi, 9 Oct 2006, T. 8961, 8975-8977, 10 Oct 2006, T. 9097-
9098 (testifying that after August, the JNA could not pass the road between Slunj and Plitvice, because the town of
Slunj was under control of the Croatian MUP), 12 Oct 2006, T. 9273-9275; Witness MM-037, Ex. 268, T. 11567,
11588, 11633-11636. The JNA training grounds in Slunj stretched from Slunj towards Saborsko and Plaški, Marko
Vukovi, 24 Mar 2006, T. 2574, 2604-2605; Vlado Vukovi, 27 Mar 2006, T. 2710-2711; Nikola Medakovi, 10 Oct
2006, T. 9096; Witness MM-037, Ex. 268, T. 11585. See also Reynaud Theunens, 3 Feb 2006, T. 1051; Ex. 1042, Tab
2; Ex. 1043, Tab 2, DVD 2, pp 11-15.
528 Nikola Medakovi, 9 Oct 2006, T. 8976.
Case No. IT-95-11-T 74 12 June 2007
in Slunj.529 In 1991, Lipova~a was a predominantly Croat village with a total of 267 inhabitants.530
The Croat inhabitants of Lipova~a had guards with a few rifles mounted along the road that passed
through the village in case the JNA troops would arrive.531 There were a few ZNG forces in the
nearby Dre‘nik Grad, Rakovica and Slunj.532 In 1991, helicopters were used by the JNA to carry
weapons and ammunition, which were distributed to local Serbs.533
202. At the end of September or in early October 1991, the JNA entered Lipovaa and almost all
civilian inhabitants fled, with the exception of about 20-50 people.534 The JNA stayed for seven to
eight days and fired from tanks at the Croatian police in Dre`nik Grad and Rakovica and a Catholic
church in Dre`nik Grad.535 During this stay, some JNA soldiers warned a witness that “when we
leave, beware of the reserve forces of those paramilitary units “who would” beat the people, set
houses on fire, loot “and who would kill” regardless of age.”536 When the JNA troops left, several
of the people who remained in the village fled to the forest and spent the night there.537
203. Sometime in October 1991, after the JNA had left, armed units including “Serb paramilitary
units” from the region and outside of the region arrived in Lipova~a.538 These forces were called
“reserve forces, Marti}’s troops or Marti}’s army”, and that they wore uniforms “like the ones that
the army had”.539
204. On 27 October 1991, a JNA Miltary Police unit led by Milan Popovi}, together with
members of the TO and uniformed local Serbs, arrived in the village of Nova Kršlja adjacent to
Lipovaa.540 The JNA soldiers wore JNA uniforms whereas the TO soldiers wore black
uniforms.541 They arrested all of the young Croat men, including Ivan Marjanovi}’s son Marijan,542
529 Witness MM-036, 4 Apr 2006, T. 3183-3184, 3201; Nikola Medakovi}, 10 Oct 2006, T. 9096; Ex. 1042, Tab 2; Ex.
1043, Tab 2, DVD 2, pp 21-24; Ex. 1044.
530 Ivan Gruji}, 12 Apr 2006, T. 3629. Ex. 301, p. 9. About 60 houses belonged to Croats and about 15 houses belonged
to Serbs, Witness MM-036, 4 Apr 2006, T. 3183-3184; Ex. 301, p. 9, states that 83.15% were Croats, and 16.48% were
Serbs. It is near the Croat villages of Dre`nik, Rakovica, Selište, atrinja, Smaljanac and Nova Kr{lja and the Serb
villages of Stara Kr{lja, Jamari, Mucila, Witness MM-036, 4 Apr 2006, T. 3184; Ivan Marjanovi}, Ex. 426, T. 25005,
25013; Ex. 23, p. 19; Ex. 1044.
531 Witness MM-036, 4 Apr 2006, T. 3200-3201.
532 Witness MM-036, 4 Apr 2006, T. 3204.
533 Witness MM-036, 4 Apr 2006, T. 3186-3187, T. 3189, 3206-3207.
534 Witness MM-036, 4 Apr 2006, T. 3190.
535 Witness MM-036, 4 Apr 2006, T. 3205, 3210.
536 Witness MM-036, 4 Apr 2006, T. 3191-3192, 3208.
537 Witness MM-036, 4 Apr 2006, T. 3207.
538 Witness MM-036, 4 Apr 2006, T. 3190-3191.
539 Witness MM-036, 4 Apr 2006, T. 3207, T. 3191. The Trial Chamber notes that Witness MM-036 testified that to
him a paramilitary unit is the same thing as a reserve force or the TO, Witness MM-036, 4 Apr 2006, T. 3207.
540 Ivan Marjanovi}, Ex. 426, T. 25005-25006, 25035, Milan Popovi} wore a standard JNA uniform and a cap with the
five pointed star; Ivan Marjanovi}, Ex. 427, p. 2.
541 Ivan Marjanovi}, Ex. 427, p. 2.
542 Ivan Marjanovi}’s son was released after 15 days with bruises all over his body, Ivan Marjanovi}, Ex. 426, T. 25006,
25032, upon his return the JNA gave him the choice of joining the army or of performing forced labour.
Case No. IT-95-11-T 75 12 June 2007
and searched Ivan Marjanovi}’s house for weapons.543 On the next day, the soldiers returned to
Ivan Marjanovi}’s house and demanded that he surrender his rifle to them, even though he did not
have one.544 The soldiers then beat him severely, kicked him in the groin and broke his wrist.545
They again returned the next day and told him he was not allowed to leave his house or its
immediate surroundings.546
205. At the end of October 1991, some time after the arrival of the paramilitary units, the bodies
of Franjo Brozin~evi}, Marija Brozin~evi}, Mira Brozin~evi}, and Katarina Cindri} were found in
Franjo Brozin~evi}’s house in Lipovaa.547 All four victims were dressed in civilian clothes and had
been killed by gunshots.548
206. Between 29 and 31 October 1991, Ne|o Kotur, a local Serb commander,549 came to the
house of Ivan Marjanovi} and told him that “the Serbs” had killed some Croats and told Ivan
Marjanovi} to go with him to Lipova~a to bury the victims.550 Ne|o Kotur, Ivan Marjanovi}, and
three other Croat villagers, drove to Lipova~a and passed a checkpoint manned by “Marti}’s
men”.551
207. The group of men arrived in Lipova~a at 0900 hours and went to the house of Mate
Brozin~evi}, where they found his body in the kitchen with several bullet holes in the stomach.552
Mate’s wife, Ro`a, had also been shot, and the body of their son Mirko was lying at the entrance to
the bedroom with a bullet hole in the neck.553 All victims wore civilian clothing.554
543 Ivan Marjanovi}, Ex. 426, T. 25006, 25035.
544 Ivan Marjanovi}, Ex. 426, T. 25007.
545 Ivan Marjanovi}, Ex. 426, T. 25007, Ex. 427, p. 3.
546 Ivan Marjanovi}, Ex. 426, T. 25007.
547 Witness MM-036, 4 Apr 2006, T. 3192; Ex. 1042, Tab 2; Ex. 1043, Tab 2, DVD 2, pp 21-23.
548 Witness MM-036, 4 Apr 2006, T. 3193-3194; Ivan Marjanovi}, Ex. 426, T. 25007, 25009, Ex. 427, p. 4; Ex. 304, pp
8-12; Ex. 323, p. 2. See also Ex. 375, pp 5-8, indicating that the deaths of these four victims were violent.
549 The Trial Chamber notes that Ivan Marjanovi’s evidence is contradictory as to the uniform that Ne|o Kotur was
wearing. In his testimony in the Miloševi trial, he testified that Neo Kotur was dressed in the JNA uniform of a
reserve officer and a JNA hat with a red star, Ivan Marjanovi}, Ex. 426, T. 25007, 25023-25037. In a statement given in
2001, Ivan Marjanovi} stated that Ne|o Kotur was wearing a black police uniform, with a patch of the SAO Krajina on
it and a knit cap with a cockade, Ivan Marjanovi}, Ex. 427, p. 3. The Trial Chamber cannot draw any conclusions on the
basis of this evidence.
550 Ivan Marjanovi}, Ex. 426, T. 25007, Ex. 427, p. 3.
551 Ivan Marjanovi}, Ex. 426, T. 25007, Ex. 427, p. 3.
552 Ivan Marjanovi}, Ex. 426, T. 25007; Ex. 323, p. 2. See also Ex. 304, pp 6-7; Ex. 375, pp 3-4; Ex. 1042, Tab 2; Ex.
1043, Tab 2, DVD 2, pp 23-24.
553 Ivan Marjanovi}, Ex. 426, T. 25007; Ex. 323, p. 2. See also Ex. 304, pp 4-6; Ex. 375, pp 2-3; Witness MM-036, 4
Apr 2006, T. 3194.
554 Ex. 304, pp 4-7; Ex. 375, pp 2-4; Ivan Marjanovi}, Ex. 426, T. 25007, 25009, 25022, Ex. 427, p. 4; Ex. 375, pp 2-4.
Case No. IT-95-11-T 76 12 June 2007
208. In June 1996, the above-mentioned seven individuals, who are listed in the Indictment, were
exhumed from mass graves in Lipovaa Drežnika.555
209. Milan Babi} travelled to Lipova~a and villages in the surrounding area in 1993 and testified
that he saw “villages which used to be populated by Croats and Croat houses were devastated and
there were no Croat residents any more.”556 Upon returning to Lipova~a in 1995, Witness MM-036
found Lipovaa and other villages in the municipality looted and burnt.557
(c) Poljanak and Vukovii
210. Poljanak is located about 14 kilometres south-east of Saborsko and 8 km north-west of
Plitvice.558 In 1991, there were around 30-50 predominantly Croat households in Poljanak.559 The
Croat hamlet of Vukovii, which is less than one kilometre away from Poljanak, consisted of about
six or seven houses.560
211. Poljanak was shelled for the first time on 28 August 1991 and was shelled daily after that.561
A few families initially left but returned two to three days later.562
212. On 5 September 1991, women with small children and minors in Poljanak and the
surrounding villages left for Kraljevica, south-east of the city of Rijeka on the Adriatic coast.563
Vukovii was shelled at around noon on 8 October 1991, after which there was shooting in the
village by unidentified armed Serbs.564 The next morning, Tomo Vukovi was found dead in front
of his burnt down house and at least two more houses had burnt down.565 Around 14 October 1991,
Mile Lonar, an invalid man, and his father, Ivan Lonar, were found hanged in their house.566
555 Ex. 302. The Trial Chamber notes that also the following persons were killed in Lipovaa: Ana Pemper, Barbara
Vukovi}, Juraj [ebalj, Juraj Conjar, and Milan Smol~i}, Ex. 304, pp 13-15; Ex. 375, pp 9-10. These victims are not
listed in the Indictment. The Trial Chamber recalls its findings regarding the interpretation of the Indictment and
concludes that the Defence has not been on notice regarding these victims, see supra paras section I C.
556 Milan Babi}, 20 Feb 2006, T. 1600-1601.
557 Witness MM-036, 4 April 2006, T. 3195. See also id at T. 3211.
558 Marica Vukovi, 22 Mar 2006, T. 2403-2404; Ex. 1042, Tab 2; Ex. 1043, Tab 2, DVD 2, pp 24-26; Ex. 1044.
559 Marica Vukovi, 22 Mar 2006, T. 2403, 2438, 2451; Witness MM-038, 24 Mar 2006, T. 2563.
560 Witness MM-038, 24 Mar 2006, T. 2451, 2457, 2561; Ex. 1042, Tab 2; Ex. 1043, Tab 2, DVD 2, pp 26-29; Ex.
1044.
561 Marica Vukovi, 22 Mar 2006, T. 2411.
562 Marica Vukovi, 22 Mar 2006, T. 2414. The shelling usually came from Bigina Poljana, a Serb village, Plitvice and
Rastovaa, a Croat village that had been burnt down and occupied by Serbs, Marica Vukovi, 22 Mar 2006, T. 2415-
2416. These villages were about a kilometre away from Poljanak, Marica Vukovi, 22 Mar 2006, T. 2442. Marica
Vukovi did not know which units were stationed in these villages, ibid.
563 Marica Vukovi, 22 Mar 2006, T. 2408, 2414-2415.
564 Marica Vukovi, 22 Mar 2006, T. 2417.
565 Marica Vukovi, 22 Mar 2006, T. 2404, 2416-2417 (testifying that the houses were “Pero’s house and Aunt
Lucilja’s house”); Ex. 261, p. 2; Ex. 376, pp 6-7, concluding that Tomo Vukovi was killed by a gunshot to the thorax;
Witness MM-038, 24 Mar 2006, T. 2561-2562. The Trial Chamber notes that although paragraph 27 of the Indictment
refers to Poljanak, paragraph 29 refers to the hamlet of Vukovii near Poljanak. Moreover, the Rule 65 ter summaries of
Marica Vukovi and Witness MM-038 contain references to the killing of Tomo Vukovi. The Trial Chamber considers
Case No. IT-95-11-T 77 12 June 2007
213. There were no Croatian military units in Poljanak in the summer and autumn of 1991.567
However, there was a civilian protection force that would keep watch, but the members were either
unarmed or had two to three hunting rifles at their disposal.568
214. On 7 November 1991, there was a large group of soldiers present in Vukovii. The soldiers
were dressed in green camouflage uniforms and their commanders wore JNA caps with a red
star.569 There were local people among these troops and there was also a JNA special unit present
from Niš, Serbia, who wore darker camouflage uniforms.570 The soldiers came to Nikola “Šojka”
Vukovi’s house in Vukovii and lined up and killed Dane Vukovi (son of Poldin), Dane Vukovi
(son of Mate),571 Lucija Vukovi, Milka Vukovi, Vjekoslav Vukovi, Joso Matovina and Nikola
Matovina.572 Nikola “Šojka” Vukovi (born 1926) was too sick to leave the house and was shot
from the window while lying in his bed.573 All killed individuals were Croat civilians.574 The
evidence shows that one or two houses were burnt in Vukovi}i on 7 November 1991 by members of
these units.575
215. The Defence pointed out certain discrepancies in the evidence concerning how the killings
in Vukovii on 7 November 1991 were carried out.576 However, the Trial Chamber considers that
these discrepancies are not material and therefore do not affect its finding that these killings were
committed.
216. Also on 7 November 1991, 20 armed soldiers dressed in camouflage and olive-drab
uniforms surrounded the house of Marica Vukovi, a Croat, in Poljanak.577 Marica Vukovi did not
know where the soldiers were from but concluded that some must be locals because they appeared
well informed about Marica Vukovi and her family.578 As soon as they arrived, the soldiers
that the reference in paragraph 27 to Poljanak includes the hamlet of Vukovii and that the Defence has therefore been
on notice in relation to the killing of Tomo Vukovi.
566 Marica Vukovi, 22 Mar 2006, T. 2419-2420, 2445. It is not clear from the evidence whether these men committed
suicide or were killed; see also Ex. 261, p. 3.
567 Marica Vukovi, 22 Mar 2006, T. 2412-2413.
568 Marica Vukovi, 22 Mar 2006, T. 2414, 2423; Ex. 261, p. 3; Witness MM-038, 23 Mar 2006, T. 2555.
569 Ex. 261, p. 5. It is not clear how many soldiers there actually were in Vukovii on that day. One witness stated that
there were between 90-100 soldiers, Witness MM-038, 23 Mar 2006, T. 2549-2551.
570 Witness MM-038, 23 Mar 2006, T. 2551-2552, 2560, 2563-2564 (also testifying that the local people wore the same
uniforms and served as guides); Milan Babi, 20 Feb 2006, T. 1599-1600; Radoslav Maksi, 7 Feb 2006, T. 1253; Ex.
261, p. 5.
571 Ex. 262; Ex. 302, p. 6.
572 Ex. 261, p. 4; Witness MM-038, 23 Mar 2006, T. 2535-2542. See also Marica Vukovi, 22 Mar 2006, T. 2432; Ex.
376; Ex. 302, p. 6; Ex. 323; Ex. 715; Ex. 1042, Tab 2; Ex. 1043, Tab 2, DVD 2, pp 26-29.
573 Ex. 261, p. 4; Ex. 376, p. 5; Ex. 302; Ex. 323.
574 Witness MM-038, 23 Mar 2006, T. 2519.
575 Witness MM-038, 23 Mar 2006, T. 2551, 24 Mar 2006, T. 2562, Ex. 261, p. 5.
576 Witness MM-038, 23 Mar 2006, T. 2535-2542; Ex. 262; Ex. 263; Ex. 264.
577 Marica Vukovi, 22 Mar 2006, T. 2443-2444, 2455. See also id.at T. 2424, 2450; Ex. 1042, Tab 2; Ex. 1043, Tab 2,
DVD 2, pp 24-26.
578 Marica Vukovi, 22 Mar 2006, T. 2424, 2426, 2446-2447.
Case No. IT-95-11-T 78 12 June 2007
“captured” Marica Vukovi and the others present in the house.579 The soldiers tied the arms of
Marica Vukovi’s husband Nikola Vukovi (born 1938) and her father Ivan Vukovi.580 Marica
Vukovi, her daughter Mira Vukovi, her mother-in-law Jelena Vukovi and her neighbour Marija
Vukovi were put under a plum tree where they were slapped, insulted and interrogated.581 One of
the soldiers threatened Marica Vukovi and also put a knife at her throat.582 The soldier wore a
glove and said that it was “so that I won't get my hand bloody when I slit the throats of
Ustashas.”583
217. The women were separated from Ivan Vukovi and Nikola Vukovi (born 1938) and taken
to a nearby maize field whereupon two or three other soldiers came from the direction of Vukovii,
together with a boy. The boy was put with the women.584 Subsequently, shooting was heard from
the house where Ivan Vukovi and Nikola Vukovi had been left.585
218. Soon thereafter, a soldier came to the women and told them to flee. The women and the boy
hid in the woods for a few hours.586 After having seen some cars move away from the village,
Marica Vukovi returned to her house and then came across the bodies of her father and husband in
the maize field.587 She saw that her husband’s “brains were shattered” and that her father’s “skull
wasn’t in place any more”.588 On that day, neither her husband nor her father was armed or wearing
a uniform, nor were they members of a military force or the police.589
219. The evidence shows that several houses, sheds and cars were burnt in Poljanak on 7
November 1991, by the soldiers present in the village. The evidence also shows that before the
houses were burnt private property was looted or destroyed.590 When torching the houses, some
soldiers made comments, such as “Milo{evi} built the house and Milo{evi} is going to destroy it”
and “what’s Tu|man done for you? All you are going to get from him is a bullet in your head”.591
579 Marica Vukovi, 22 Mar 2006, T. 2424-2425.
580 The Trial Chamber notes that both Marica Vukovi’s husband and her uncle were named Nikola Vukovi, that her
husband was born 1938, and that her uncle was nicknamed “Šojka” (born 1926), Marica Vukovi, 22 Mar 2006, T.
2424-2425. Both Nikola Vukovi and Ivan Vukovi were Croat, Marica Vukovi, 22 Mar 2006, T. 2405.
581 Marica Vukovi, 22 Mar 2006, T. 2425, 2454.
582 Marica Vukovi, 22 Mar 2006, T. 2426.
583 Marica Vukovi, 22 Mar 2006, T. 2426-2427.
584 Marica Vukovi, 22 Mar 2006, T. 2425-2426.
585 Ex. 261, p. 5.
586 Marica Vukovi, 22 Mar 2006, T. 2427-2429.
587 Marica Vukovi, 22 Mar 2006, T. 2429.
588 Marica Vukovi, 22 Mar 2006, T. 2430, also testifying that she wrapped the bodies in blankets which were later
found during the exhumation; Ex. 376, pp 2-5. See also Ex. 323; Ex. 302.
589 Marica Vukovi, 22 Mar 2006, T. 2430.
590 Marica Vukovi, 22 Mar 2006, T. 2428-2429, 2457, also testifying that the soldiers took people out of houses and
cars and then set fire to them. Ex. 259, 11 photographs of houses and places described by Marica Vukovi. See also
Milan Babi}, 20 Feb 2006, T. 1600-1601, testifying that in 1993 he found Poljanak devastated and there were no Croat
residents there anymore.
591 Marica Vukovi, 22 Mar 2006, T. 2428.
Case No. IT-95-11-T 79 12 June 2007
(d) Saborsko
220. In early 1991, there were 600 to 850 people, mostly Croats, living in the 300 households of
Saborsko.592 In the centre of Saborsko, there was a large church called the church of St. John.
Slightly outside the centre, there was a smaller church, the church of the Mother of God.593
221. On 2 April 1991, the Croat members of the Ogulin SJB established an outpost in
Saborsko.594 There were around 30 policemen, armed with automatic rifles and pistols, who
engaged in regular police work but also manned check-points in case of an attack on Saborsko.595
Between April and August 1991, JNA armoured vehicles were allowed to pass through roadblocks
and patrolled daily through Saborsko going between Plitvice and Li~ka Jasenica.596 From around
June 1991, about 20 or 30 local men were organised in Saborsko and patrolled the village at night
carrying “hunting guns or some military rifles.”597 Between June and August 1991, Saborsko was
fired upon with rifle and artillery fire. It was mostly one of the churches and the school that were
shot at and the fire came from Li~ka Jasenica and from Pi{tenik hill.598
222. In the early morning of 5 August 1991, Saborsko was shelled by mortars from the direction
of the Lika Jasenica JNA barracks.599 Shells fell on the cemetery and central parts of the village.600
At the time of the shelling, a Croatian special police unit from Duga Resa, numbering 20-30
policemen, had taken up a defence line at the primary school in the centre of the village.601 On the
592 Vlado Vukovi, 27 Mar 2006, T. 2648-2649, 2679, 28 Mar 2006, T. 2730; Marko Vukovi, 24 Mar 2006, T. 2567-
2568; Ana Bi}ani}, Ex. 276, p. 2; Milan Babi, 20 Feb 2006, T. 1600; In 1991, Saborsko had 852 inhabitants (93.9%
were Croat, and 3.3% were Serbs), Ex. 301, p. 7.
593 Nikola Medakovi, 9 Oct 2006, T. 9014; Ana Bi}ani}, Ex. 276, p. 5. See also Ex. 1042, Tab 2; Ex. 1043, Tab 2,
DVD 2, pp 30-35, 38-39.
594 Vlado Vukovi, 27 Mar 2006, T. 2651-2652; Marko Vukovi, 24 Mar 2006, T. 2572-2573, 2598; Lazar Macura, 14
Sep 2006, T. 8321; Nikola Medakovi, 9 Oct 2006, T. 8960.
595 Marko Vukovi, 24 Mar 2006, T. 2572-2573, 2602-2603; Vlado Vukovi, 27 Mar 2006, T. 2654, 2686, 2689;
Nikola Medakovi}, 9 Oct 2006, T. 8962-8963, also testifying that the outpost in Saborsko consisted of about 60 men,
id. at T. 8960.
596 Marko Vukovi, 24 Mar 2006, T. 2574; Vlado Vukovi, 27 Mar 2006, T. 2655; Nikola Medakovi, 10 Oct 2006, T.
9095; Ana Bi}ani}, Ex. 276, p. 3.
597 Ana Bi}ani}, Ex. 276, p. 3.
598 Ana Bi}ani}, Ex. 276, p. 2. In July 1991, Croatian social workers evacuated several elderly persons, younger women
and children, ibid, p. 3. As a result of the attacks in June and July 1991, 10 people were killed, including Ivica
Krizmani}, Marko Krizmani}, Tomo Matovina, Ante Kova~i}, Pere Matovina and Joso Matovina, and there was a large
number of wounded, id. at p. 3.
599 Marica Vukovi, 22 Mar 2006, T. 2412, 2441; Marko Vukovi, 24 Mar 2006, T. 2574-2576, 2608; Vlado Vukovi,
27 Mar 2006, T. 2657-2659, 28 Mar 2006, T. 2724; Nikola Medakovi, 10 Oct 2006, T. 9122; Ana Bi}ani}, Ex. 276, p.
3. See also Marko Vukovi, 24 Mar 2006, T. 2577-2578; Ex. 38; Ex. 1042, Tab 2; Ex. 1043, Tab 2, DVD 3, pp 5-8.
Vlado Vukovi also testified, in relation to who fired upon Saborsko, that “it’s well-known who it is; it’s the JNA and
the local leaders, so-called Marti's men”, Vlado Vukovi, 27 Mar 2006, T. 2658. Based solely on this evidence, the
Trial Chamber is unable to draw a conclusion as to who was responsible for this shelling.
600 Vlado Vukovi}, 27 Mar 2006, T. 2659, 2692.
601 Marko Vukovi, 24 Mar 2006, T. 2576 (also testifying that this unit fled towards Slunj at 2200 or 2300 hours in the
evening), 2606-2607; Vlado Vukovi, 27 Mar 2006, T. 2658, 2690-2692 (also testifying that the unit arrived in late July
1991 and that it was armed with side arms and long-barrelled weapons), 28 Mar 2006, 2732; Nikola Medakovi, 9 Oct
2006, T. 8963. Nikola Medakovi testified that less than 50 metres from the church of the Mother of God, there were
fortified Croat positions which constituted a line of defence, Nikola Medakovi, 9 Oct 2006, T. 9015-9016.
Case No. IT-95-11-T 80 12 June 2007
night of 5 August 1991, most of the civilian population of Saborsko fled through Rakovica to
Grabovac, where the Red Cross had arrived with three buses. About 100 to 150 civilians were
evacuated to areas under Croatian control, whereas around 400 persons returned to Saborsko in the
following days.602
223. After 5 August 1991, Saborsko was shelled almost every day from various directions,
including from the direction of the barracks at Lika Jasenica.603 After this date, the policemen
stationed at the Saborsko outpost were no longer engaged in regular police work, but were deployed
in combat positions.604 On 6 August 1991, 15-20 policemen armed with rifles and pistols came
from Slunj to support the Saborsko police.605 When the unit from Slunj had left, further
reinforcements arrived from Drežnik Grad.606 The church of St. John was the most hit during the
shelling, though many other buildings in Saborsko were also damaged.607 Around this time, there
was also an attempt by the Serb side to take Kušelj, a hamlet of Saborsko, in which some members
of the Croatian forces were wounded and killed.608
224. Around 25 September 1991, a unit of the Croatian MUP reserve was deployed from Zagreb
to support the defence of Saborsko. The unit consisted of between 100 and 200 persons who were
armed with automatic rifles, sub-machine guns, two mortars and an anti-aircraft gun.609 The unit
took up positions around Saborsko, in the hamlets of Sivnik, Alan, Kušelj, Borik and Strk, and
remained until Saborsko fell on 12 November 1991.610 There is evidence that the Croatian MUP
reserve unit was partly deployed in the church of St. John, which was used as an observation point,
machinegun nest and ammunition store.611 In early October, there was an armed clash in the area of
Sertic Poljana.612 In October 1991, a convoy carrying food and weapons arrived in Saborsko,
escorted by between 20 and 50 reserve policemen armed with automatic and semi-automatic rifles.
These policemen remained in Saborsko.613 Beginning on 4 November 1991, Croatian MUP and
ZNG forces, including from Saborsko, launched an attack on the barracks at Li~ka Jasenica and an
602 Marica Vukovi 22 Mar 2006, T. 2412; Marko Vukovi, 24 Mar 2006, T. 2578-2579, 2607-2608, 2629; Vlado
Vukovi, 27 Mar 2006, T. 2659, 2693; Nikola Medakovi, 10 Oct 2006, T. 9048; Ana Bi}ani}, Ex. 276, p. 3.
603 Marko Vukovi, 24 Mar 2006, T. 2584-2586 (also testifying about aerial attacks); Vlado Vukovi, 27 Mar 2006, T.
2659; Ana Bi~ani}, Ex. 276, p. 3; Jure Vukovi, Ex. 277, p. 2.
604 Vlado Vukovi, 27 Mar 2006, T. 2696-2697.
605 This unit took up positions in some of the hamlets of Saborsko and stayed at least for 12 days, Marko Vukovi, 24
Mar 2006, T. 2579-2580, 2608-2611; Vlado Vukovi, 27 Mar 2006, T. 2692, 2694 (testifying that this reinforcement
remained in Saborsko for “two or three days”).
606 Marko Vukovi, 24 Mar 2006, T. 2609.
607 Vlado Vukovi}, 27 Mar 2006, T. 2659-2660.
608 Marko Vukovi, 24 Mar 2006, T. 2585.
609 Marko Vukovi, 24 Mar 2006, T. 2580, 2588, 2597-2598; 2614-2615, 2620; Vlado Vukovi, 27 Mar 2006, T. 2660-
2662 (testifying at T. 2661 that the members of this unit wore green uniforms), 2695-2696; Nikola Medakovi, 9 Oct
2006, T. 8964, 8981, 8983, 11 Oct 2006, T. 9134.
610 Marko Vukovi, 24 Mar 2006, T. 2584, 2618. See also Nikola Medakovi, 9 Oct 2006, T. 8984.
611 Nikola Medakovi}, 9 Oct 2006, T. 9028-9029.
612 Marko Vukovi, 24 Mar 2006, T. 2619-2620.
Case No. IT-95-11-T 81 12 June 2007
area called Glibodolski Kri` nearby.614 During the attack, Serb civilians were killed by the Croatian
forces.615 The Croatian attack was eventually repelled on 8 November 1991.616
(i) Attack on Saborsko on 12 November 1991
225. Saborsko was attacked mid-morning on 12 November 1991 by Tactical Group 2 (“TG-2”),
under the command of Colonel ^edomir Bulat, and the 5th Partisan Brigade, both of which were
within the structure of the JNA 13th Corps.617 A unit of the Pla{ki SDB,618 the Plaški TO Brigade619
and Milicija Krajine units participated in the attack.620 Within the Plaški TO Brigade, a battalion
consisting of three companies under the command of Bogdan Grba participated.621
226. The attack commenced with aerial bombing followed by an artillery attack.622 Afterwards,
ground units, including tanks, moved in on Saborsko from three axes.623 During the attack, the
church of St. John was hit by a tank shell but the tower remained standing.624 The church of the
613 Marko Vukovi, 24 Mar 2006, T. 2586, 2621-2622; Ana Biani, Ex. 276, p. 3
614 Nikola Medakovi, 9 Oct 2006, T. 8984-8987, 9003-9004, 11 Oct 2006, T. 9173-9174; Ex. 108, items 3-9; Ex. 962.
Fire was guided in from Saborsko because it was at a higher elevation than Lika Jasenica, ibid. The presence in
Saborsko, between September and November 1991, of a small number of ZNG members is confirmed by Marko
Vukovi, 24 Mar 2006, T. 2612-2614, 2628; Ex. 52.
615 Witness MM-037, 28 Mar 2006, T. 2754-2755, 2781-2783; Ex. 268, T. 11625-16266; Nikola Medakovi, 9 Oct
2006, T. 8985-8987, 8993-8995, 11 Oct 2006, T. 9167, 9174-9177, 12 Oct 2006, 9268-9269; Ex. 108, item 13; Ex. 605,
pp 1-2.
616 Witness MM-037, 28 Mar 2006, T. 2752, 2780-2781; Nikola Medakovi, 11 Oct 2006, T. 9180.
617 Radoslav Maksi, 7 Feb 2006, T. 1235 (also testifying that the 13th Corps had a forward command post in the village
of Mukinje in the vicinity of Saborsko); Milan Babi, 20 Feb 2006, T. 1599-1600; Witness MM-037, 28 Mar 2006, T.
2789-2790, 2798; Ex. 268, T. 11591; Nikola Medakovi, 9 Oct 2006, T. 8988-8989, 8998-8999, 9009, 12 Oct 2006, T.
9225-9226; Imra Agoti, Ex. 398, T. 23315, 23402; Ex. 51, pp 2-3; Ex. 52, p. 3; Ex. 108, item 18; Ex. 422; Ex. 507, p.
4; Ex. 603; Ex. 605. p. 2. TG-2 was established on 23 October 1991 by the 5th Army District, Ex. 960; Ex. 507, p. 4.
618 Ex. 603; Ex. 605, p. 1.
619 The Plaški TO Brigade was subordinated to TG-2, Witness MM-037, 28 Mar 2006, T. 2751, 2789-2790; Ex. 51, pp
2-3; Ex. 52, p. 3.
620 Ex. 605, p. 1.
621 These companies were of an ad hoc nature and were extracted from the TO Brigade and the police in Plaški, Nikola
Medakovi, 10 Oct 2006, T. 9104; Ex. 607. Nikola Medakovi testified that his company consisted of about 60 men,
including former members of the Milicija Krajine unit in Plaški who had been transferred to the Plaški TO Brigade in
September 1991, Nikola Medakovi, 9 Oct 2006, T. 8988, 8990-8992, 8998-8999, 10 Oct 2006, T. 9055, 12 Oct 2006,
T. 9287; Witness MM-037, 28 Mar 2006, T. 2751, 2794-2795, 29 Mar 2006, T. 2821; Ex. 607, p. 2; Ex. 507, p. 4. The
company in the middle was commanded by Ðuro Ogrizovi, Nikola Medakovi, 9 Oct 2006, T. 9018, 10 Oct 2006, T.
9103; Ex. 607, p. 3; Ex. 608, p. 3; Witness MM-037, 28 March 2006, T. 2803-2804. An armoured company with about
ten tanks advanced in the centre of the three companies, along the asphalt road, Nikola Medakovi, 9 Oct 2006, T.
9014, 9018; Jure Vukovi, Ex. 277, p. 2.
622 Witness MM-037, 28 Mar 2006, T. 2798, stating that the attack started just after 0900 hours. See also Ex. 268, T.
11593-11594, 11627 (stating that the artillery consisted of mortars and tanks positioned on elevations surrounding
Saborsko and in Slunj); Nikola Medakovi, 9 Oct 2006, T. 9010-9011, 11 Oct 2006, T. 9160; Ana Bi}ani}, Ex. 276, p.
3; Jure Vukovi, Ex. 277, p. 2; Imra Agoti}, Ex. 398, T. 23314-23315; Ex. 422; Ex. 507, p. 4; Ex. 608, p. 2. One of the
bombs from the airplanes fell on the house of a neighbour of Jure Vukovi and three floors of the house collapsed, Jure
Vukovi, Ex. 277, p. 2.
623 Nikola Medakovi, 9 Oct 2006, T. 9009 (testifying that his company started in the village of Momilovii, went
towards Vukeli Poljana and Borik), 9017-9019 (at T. 9018 testifying that one company went towards Sivnik, that Ðuro
Ogrizovi led the company in the centre, including ten tanks, going towards Saborsko itself along the road). See also
Witness MM-037, 28 Mar 2006, T. 2798, 29 Mar 2006, T. 2798, 2803, Ex. 268, T. 11595; Nikola Medakovi, 12 Oct
2006, T. 9238; Jure Vukovi, Ex. 277, p. 2; Ex. 607, p. 3. Ex. 608, p. 3.
624 Witness MM-037, 28 Mar 2006, T. 2753; Jure Vukovi}, Ex. 277, p. 2.
Case No. IT-95-11-T 82 12 June 2007
Mother of God was also shelled and damaged during the attack.625 That church was used as an
observation post because there was a clear view of the Lika Jasenica barracks from it.626 The
fighting went on until some point between 1400 hours and 1700 hours; the tanks withdrew around
1800 hours.627 There were no casualties on the Serb side whereas “on the Croatian MUP side”
there were 50 dead.628
227. After the attack, there were many Serb soldiers and policemen in the centre of Saborsko.629
The evidence shows that a shop was looted by Zdravko Peji and individuals with the last names
Ceki or Cveki, and Momilovi, both of whom were members of Ðuro “Snjaka” Ogrizovi’s
company.630 An individual identified as “Pei” together with Željko “Buba” Mudri and Nedeljko
“Kia” Trbojevi, as well as “other Marti’s men” drove away in private cars they found in
Saborsko.631 Moreover, all the tractors in Saborsko were driven away, subsequently to be put up for
auction, and household goods were stolen by plunderers.632 There is also evidence that more than
50 cattle from Saborsko were brought to Pla{ki and that 17 sheep were taken to Kuni.633 Many
houses in Saborsko were set alight and burnt after the attack.634 The evidence shows that the
perpetrators, who were engaged in the burning of the houses included Nedeljko “Kia” Trbojevi,
“Pei”, Željko “Buba” Mudri, as well as “other Marti’s men”.635 Houses in the hamlets of Tuk
and Dumenii, and in the Serb hamlet of Solaje, were also set alight.636 In Borik, both Croat and
Serb houses were burned.637 By mid-December 1991, both the church of St. John and the church of
the Mother of God had been destroyed.638 By 1995, the whole of Saborsko, including the school,
625 Nikola Medakovi, 9 Oct 2006, T. 9015-9016.
626 Nikola Medakovi, 9 Oct 2006, T. 9016, testifying that there was a clear line of sight between the church of the
Mother of God and the Lika Jasenica barracks.
627 Nikola Medakovi, 9 Oct 2006, T. 9017-9019; Ex. 108, item 18.
628 Ex. 605, p. 3. See also Witness MM-037, 29 Mar 2006, 2812, Ex. 268, T. 11596.
629 Witness MM-037, Ex. 268, T. 11599-11601; Nikola Medakovi, 11 Oct 2006, T. 9188, 12 Oct 2006, T. 9236-9237;
Ex. 507, p. 4.
630 Witness MM-037, 28 Mar 2006, T. 2803, 29 Mar 2006, 2808-2810; Ex. 268, T. 11597-11600.
631 Ex. 507, p. 4-5 (on p. 4 Nedeljko Trbojevi’s nickname is listed as “Kiin”), providing, inter alia, that Mate
Matovina’s car was taken by Željko “Buba” Mudri, and that Jura Matovina’s lorry was torched in Saborsko. Ex. 606
lists Miloš Momilovi and Željko Mudri as members of the “Reconnaissance-sabotage squad (Special forces) in
Plaški” within the DB. Nikola Medakovi testified that both these individuals went to the training ground in Slunj and
were mobilised in the JNA after the Milicija Krajine unit was merged into the TO Brigade, Nikola Medakovi, 10 Oct
2006, T. 9106.
632 Ex. 507, p. 4, also providing that nearly every household in Saborsko had a tractor.
633 Nikola Medakovi, 9 Oct 2006, T. 9025; Ex. 507, p. 4; Ex. 963, p. 2, providing that Slavko Dumen~i} saw a man in
military uniform, recognised as Milan Grkovi}, move 25 sheep.
634 Milan Babi testified that by 1993 Saborsko, Poljanak and Lipovaa contained no Croat residents and that Croat
houses were devastated, Milan Babi}, 20 Feb 2006, T. 1600-1601.
635 Ex. 507, p. 5, also provides that “Nedeljko Trbojevi … went from house to house …, hurled grenades into
cellars and set hay stacks on fire burning around 20 houses”.
636 Vlado Vukovi}, 27 Mar 2006, T. 2714; Witness MM-037, 28 Mar 2006, T. 2803, Ex. 268, T. 11597-11598; Imra
Agoti}, Ex. 398, T. 23315-23316; Ex. 507, pp 4-5.
637 Vlado Vukovi}, 28 Mar 2006, T. 2730, 2733; Ex. 1042, Tab 2; Ex. 1043, Tab 2, DVD 3, pp 3-4.
638 Witness MM-037, 28 Mar 2006, T. 2753; Nikola Medakovi}, 12 Oct 2006, T. 9245.
Case No. IT-95-11-T 83 12 June 2007
had been destroyed.639 The only houses left standing were two Serb houses, which had been very
badly damaged.640
228. Following the attack, most of the inhabitants of Saborsko fled to Karlovac, Zagreb, and
Ogulin.641 However, about 30 to 60 elderly villagers remained in the village and were brought to
the Li~ka Jasenica barracks by the Plaški TO. After spending the night at the barracks, they were
taken by bus towards Ogulin and released in territory controlled by the Croatian side.642
(ii) Killings in Saborsko on 12 November 1991
229. During the aerial bombing of 12 November 1991, Ana Bi}ani} and her husband Milan
Bi}ani}, took shelter in the basement of Petar “Krtan” Bi}ani}’s house, where around 20 people had
gathered, including the young boy, Jure Vukovi.643 Once it became quiet outside in the afternoon,
Milan Biani} heard someone say “give me the matches” which led him to believe that soldiers,
who had entered the village, were burning houses and that they were going to be burned inside.644
In order to prevent this, they waved a white undershirt tied to a piece of wood through the basement
door, shouting that they were civilians.645 There were soldiers outside wearing camouflage and
olive-grey uniforms, as well as two soldiers dressed in “Serbian dark grey uniforms and wearing
helmets with a five pointed red star”.646 The soldiers told all of the villagers to come out of the
basement.647 The soldiers were armed and spoke in a Serbian dialect.648 Some of the soldiers swore
at them, saying “fuck your Ustaša mother” and that all of them should be slaughtered.649
230. One of the soldiers threw a hand grenade into the empty basement.650 The soldiers separated
the men from the women and lined them up opposite each other.651 The soldiers searched the men
639 Marko Vukovi}, 24 Mar 2006, T. 2590, 2631; Ana Biani}, Ex. 276, p. 4; Vlado Vukovi}, 27 Mar 2006, T. 2674-
2675.
640 Witness MM-039, Ex. 277, p. 4.
641 Vlado Vukovi, 28 Mar 2006, T. 2727. See also Imra Agoti}, Ex. 398, T. 23315-23316, testifying that in more or
less all Croat villages in the area, including Vagnac, Drežnik Grad and Rakovica, civilians were displaced, after which
the houses and all facilities were devastated.
642 Witness MM-037, 28 Mar 2006, T. 2801-2803, Ex. 268, T. 11603-11604, 11612-11613, 11637; Nikola Medakovi,
9 Oct 2006, T. 9019-9020. See also Ex. 963, pp 2-3.
643 Ana Bi}ani}, Ex. 276, p. 3. The persons in the basement were: Petar Bi}ani} and his wife Kate Bi}ani}, Ana Bi}ani}
and her husband, Ivan Vukovi}, Nikola Bi}ani}, Pero Bi}ani}, Jure [trk and his wife Kate [trk, Jure Vukovi} and his
half brother whose name was also Jure Vukovi} (nicknamed Jura Zenkov), Kate Vukovi} and her son Jure Vukovi}
(who was 8-10 years old), a second woman named Ana Bi}ani}, Bara Bi}ani}, Ana Vukovi}, Jeka Vukovi}, a third
woman named Ana Bi}ani} (born 1924), Marija Hodak, Jeka Duman~i}, and Marija [trk, Ana Bi}ani}, Ex. 276, p. 3;
Jure Vukovi, Ex. 277, p. 2. See also Ex. 1042, Tab 2; Ex. 1043, Tab 2, DVD 3, pp 1-2.
644 Ana Bi}ani}, Ex. 276, p. 3; Jure Vukovi, Ex. 277, pp 2-3
645 Ana Bi}ani}, Ex. 276, p. 3; Jure Vukovi, Ex. 277, p. 3.
646 Ana Bi}ani}, Ex. 276, p. 4.
647 Ana Bi}ani}, Ex. 276, p. 4; Jure Vukovi, Ex. 277, p. 3.
648 Ana Bi}ani}, Ex. 276, p. 4; Jure Vukovi, Ex. 277, p. 3.
649 Ana Bi}ani}, Ex. 276, p. 4; Jure Vukovi, Ex. 277, p. 3.
650 Ana Bi}ani}, Ex. 276, p. 4; Jure Vukovi, Ex. 277, p. 3.
651 Ana Bi}ani}, Ex. 276, p. 4; Jure Vukovi, Ex. 277, p. 3; Marko Vukovi, 24 Mar 2006, T. 2588.
Case No. IT-95-11-T 84 12 June 2007
and took their money and valuables.652 While the men were being searched, one soldier hit Jure
[trk and Milan Bi}ani}.653 After about 15 minutes, the men were taken around a corner of Ivan
Bi}ani}’s house.654 Two soldiers wearing Serbian dark grey uniforms shot and killed the men with
automatic rifle fire.655 The following seven men were killed: Milan Bi}ani}, Nikola Bi}ani}, Petar
Bi}ani}, Jure [trk,656 Ivan Vukovi}, Jure Vukovi} and his half brother also named Jure Vukovi}.657
231. After the killings, the two soldiers returned to the rest of the group.658 One of the two
soldiers pointed the gun at Ana Bi}ani} and told them that they had an hour to leave or they would
be killed.659 As they ran away the soldiers shot at them.660 Jeka Vukovi} fell, and that was the last
time that Jure Vukovi} saw her.661 They fled towards Borik and after three days, on 15 November
1991, they came to the HVO barracks in Lipice, east of Saborsko.662
232. After the attack on Saborsko, Nikola Medakovi}, in his capacity as president of the
municipality of Plaški, issued an order to bury human corpses after which he received a report that
the bodies of more than 20 people had been buried, including civilian women and elderly men.663
652 Ana Bi}ani}, Ex. 276, p. 4.
653 Ana Bi}ani}, Ex. 276, p. 4.
654 Ana Bi}ani}, Ex. 276, p. 4; Jure Vukovi, Ex. 277, p. 3.
655 Ana Bi}ani}, Ex. 276, p. 4; Jure Vukovi, Ex. 277, p. 3. See also Marko Vukovi, 24 Mar 2006, T. 2588-2589.
656 Jure Vukovi, Ex. 277, p. 3; Ana Bi}ani, Ex. 276, p. 4 (mentioning him as “Juraj”). The Trial Chamber notes that
Annex I to the Indictment lists a Josip Štrk but cannot conclude that this is the same individual. However, the Trial
Chamber recalls its interpretation of the Indictment in this respect and will consider the killing of Jure Štrk for a
conviction, see supra section I C.
657 Ana Bi}ani}, Ex. 276, p. 4; Jure Vukovi, Ex. 277, p. 3. Witness MM-037 was told in the evening on 12 November
1991 by a Serb soldier that five or six soldiers had killed Petar “Krtan” Biani and two more men. Witness MM-037
believed that perpetrators were a group of “renegades”, members of Marti’s Police, who thought Petar Biani was
carrying a lot of money on him, Witness MM-037, 28 Mar 2006, T. 2800-2801. Witness MM-037 further named Ðuro
“Snjaka” Ogrizovi and individuals called Lecin, Cveki and Peji, Witness MM-037, 29 Mar 2006, T. 2814-2815; Ex.
268, T. 11602, 11608-11609, 11613-11614, 11638-11639. The Trial Chamber notes the evidence that a Pei or Peji
was “the worst of all Marti’s men” and that he, together with Željko “Buba” Mudri, boasted about having “shot dead
eight people in front of the Centre in Saborsko”, Ex. 507, p. 4. However, the Trial Chamber cannot conclude beyond
reasonable doubt that this reference to killings in the centre of Saborsko refers to the killings at Petar “Krtan” Bi}ani}’s
house. Vlado Vukovi} knows of one family that was killed as well as his aunt and uncle who had gone to their Serb
neighbours’ house seeking protection but were nonetheless killed, Vlado Vukovi, 28 Mar 2006, T. 2730, 2733. The
Trial Chamber notes that victims with the last name “Bi}ani}” are listed as “Bi~ani}” in Annex I to the Indictment. See
also Marko Vukovi, 24 Mar 2006, T. 2588-2589. The Trial Chamber has also been furnished with evidence that during
the attack on Saborsko, Kata Dumani~i} and Nikola “Dika” Dumani~i} were killed in front of their house, Ex. 963, p. 2.
The Trial Chamber considers that similar names Kata Dumeni~i} and Nikola Dumeni~i} listed in Annex I to the
Indictment refer to these victims, and will consider these persons for a conviction.
658 Ana Bi}ani}, Ex. 276, p. 4.
659 Ana Bi}ani}, Ex. 276, p. 4; Jure Vukovi, Ex. 277, pp 3-4; Marko Vukovi, 24 Mar 2006, T. 2588.
660 Jure Vukovi, Ex. 277, p. 4.
661 Jure Vukovi, Ex. 277, p. 4. Annex I to the Indictment lists a Jela Vukovi and the Trial Chamber considers this to
refer to Jeka Vukovi.
662 Ana Bi}ani}, Ex. 276, p. 4; Jure Vukovi, Ex. 277, p. 4.
663 Nikola Medakovi, 9 Oct 2006, T. 9021-9022, 9027-9028, 10 Oct 2006, T. 9250. Nikola Medakovi testified that the
victims were to be buried as close as possible to where they had been killed and with everything found on them,
including identification, Nikola Medakovi, 9 Oct 2006, T. 9027.
Case No. IT-95-11-T 85 12 June 2007
233. Beginning in October 1995, several grave sites were exhumed in Saborsko.664 The biggest
site was at Popov Šanac, located close to the church of St. John, where the following 14 victims
were found: Ana Bi~ani}, Milan Bi~ani}, Nikola Bi~ani}, Petar Bi~ani}, Kata Dumen~i}, Nikola
Dumen~i}, Mate Matovina (born 1895), Milan Matovina, Mate [pehar, Ivan Vukovi}, Jeka
Vukovi}, Jure Vukovi} (born 1929), Jure Vukovi} (born 1930), and Petar Vukovi}.665 In the grave
site at Borik, the following three victims were found: Darko Dumen~i}, Ivica Dumen~i}, and Josip
[trk.666 The following ten victims were found in individual graves in Saborsko: Leopold Conjar,
Ante Dumen~i}, Ivan Matovina, Kata Matovina (born 1920), Kata Matovina (born 1918), Lucija
Matovina, Marija Matovina, Marta Matovina, Slavica Matovina, and Slavko Serti}.667
234. Considering in particular that there is direct evidence regarding the killing of eight of the
victims exhumed from the mass grave in Popov Šanac, the Trial Chamber finds that all 14 victims
exhumed from that mass grave were killed in Saborsko on 12 November 1991. Moreover, based on
evidence indicating their causes of death, the Trial Chamber considers it established beyond
reasonable doubt that also Ivica Dumen~i}, Kata Matovina (born 1920) and Slavko Serti} were
killed in Saborsko on 12 November 1991. Furthermore, considering that Darko Dumen~i} and Josip
[trk were found in the same mass grave as Ivica Dumen~i}, who was killed on 12 November 1991,
the Trial Chamber considers it established beyond reasonable doubt that these two persons were
killed on the same date. Lastly, while the body of Jure/Juraj Štrk has not been recovered, the direct
evidence establishes that he was killed on 12 November 1991. The Trial Chamber therefore finds
beyond reasonable doubt that 20 persons were killed on 12 November 1991. For the remaining
victims (Leopold Conjar, Ante Dumeni, Ivan Matovina, Kata Matovina (born 1918), Lucija
Matovina, Marija Matovina, Marta Matovina, and Slavica Matovina), the evidence is insufficient to
establish when, where and by whom they were killed.
664 Marko Vukovi, 24 Mar 2006, T. 2590-2591; Vlado Vukovi, 27 Mar 2006, T. 2676; Davor Strinovi, 12 Apr 2006,
T. 3667. See also Ex. 302.
665 Vlado Vukovi, 27 Mar 2006, T. 2676; Marko Vukovi, 24 Mar 2006, T. 2591; Ivan Gruji, 10 Apr 2006, T. 3477;
Ex. 302; Ex. 323 (providing that the cause of death was gunshot wounds for Mate Matovina (born 1895), Mate Špehar,
Ivan Vukovi, Jela Vukovi, Jure Vukovi (born 1929), Jure Vukovi (born 1930), and Petar Vukovi); Ex. 963
(regarding Kata Dumeni and Nikola Dumeni). See also Nikola Medakovi, 12 Oct 2006, T. 9244-9245. The Trial
Chamber visited Popov Šanac during the site visit, Ex. 1042, Tab 2; Ex. 1043, Tab 2, DVD 2, pp 36-38.
666 Ex. 302; Ex. 323, providing that the cause of death for Ivica Dumeni was “probably trauma wounds”. See also Ex.
1042, Tab 2; Ex. 1043, Tab 2, DVD 2, pp 40-41.
667 Ex. 323 (providing that the cause of death of Slavko Serti and Kata Matovina (born 1920) were gunshot wounds).
Mate Matovina (in Annex I to the Indictment listed with birth date unknown) is listed as killed in the list of victims
which was created by the Office for Detainees and Missing Persons of the Government of Croatia, Davor Strinovi, 12
Apr 2006, T. 3667-3668. His body was not exhumed from any of the graves and there is no other evidence concerning
his alleged death. Based on the evidence, therefore, the Trial Chamber is unable to find that this Mate Matovina is dead.
See also Ex. 302.
Case No. IT-95-11-T 86 12 June 2007
4. [kabrnja and Nadin
(a) [kabrnja, Nadin and surrounding villages
235. Škabrnja is located in south-western Croatia and in 1991 formed part of the municipality of
Zadar, which bordered the Benkovac municipality to the south-east.668 Škabrnja had about 2,000
inhabitants and was almost exclusively Croat.669 There were three churches in and around [kabrnja,
the church of the Assumption of the Virgin in the centre of Škabrnja, St. Mary’s Church in the
hamlet of Ambar, and St. Luke’s Church to the west of the centre of [kabrnja.670 In 1991, Nadin
was located in the Benkovac municipality and was approximately three kilometres south-east of
[kabrnja.671 Nadin, which was also almost exclusively Croat, had between 300 and 660 inhabitants
living in approximately 120 to 150 houses.672 Croat villages were located to the south of Škabrnja,
whereas predominantly Serb villages were located to the north and north-east of Škabrnja, towards
Benkovac municipality.673
(b) Situation in Škabrnja, Nadin and surroundings prior to 18 November 1991
236. In August 1991, running water and electricity to Nadin had been switched off from
Benkovac.674 Around September 1991, approximately 240 Croatian reserve police members and
local volunteers were present in [kabrnja.675 In September 1991, [kabrnja and Nadin were shelled
and subjected to aerial bombings, including by cluster bombs.676 On 2 October 1991, three villagers
668 Marko Miljani, 30 Mar 2006, T. 2915; Zoran Laki, 26 Oct 2006, T. 10151; Ex. 22, Map 8; Ex. 23, pp 24-25; Ex.
1042, Tab 2; Ex. 1043, Tab 2, DVD 4, pp 31-50 and DVD 5, pp 1-12.
669 Marko Miljani, 29 Mar 2006, T. 2862; Zoran Laki, 26 Oct 2006, T. 10164; Ex. 301, p. 4; Marko Miljani, 29 Mar
2006, T. 2862; Jasna Denona, 9 Feb 2006, T. 1280; Tomislav [egari}, Ex. 826, p. 2; Ex. 301, p. 4 (providing that 1991,
97.59% were Croats, and 2.15% were Serbs).
670 Neven Šegari, 29 Mar 2006, T. 2848 (referring to Ex. 271, ERN 0468-7818); Luka Brki, 7 Apr 2006, T. 3393-
3394; Ex. 109, p. 1; Ex. 1042, Tab 2; Ex. 1043, Tab 2, DVD 4, pp 42-50 and DVD 5, pp 8-12; Ex. 1044.
671 Witness MM-083, 16 Jun 2006, T. 5730; Zoran Laki}, 26 Oct 2006, T. 10151; Nada Pupovac, 31 Oct 2006, T.
10366; Ex. 1042, Tab 2; Ex. 1043, Tab 2, DVD 5, pp 12-20; Ex. 1044.
672 Witness MM-083, 16 Jun 2006, T. 5730-5731; Marko Miljani, 29 Mar 2006, T. 2862; Ex. 301 (97.6% were Croats
and 1.95% were Serbs).
673 Marko Miljani, 29 Mar 2006, T. 2862 (testifying that Biljane was an exclusively Serb village and that some Croat
villages surrounding Škabrnja, including Donji Zemunik, had some Serb population); Zoran Laki, 27 Oct 2006, T.
10229-10230.
674 Witness MM-083, 16 Jun 2006, T. 5731.
675 Marko Miljani, 29 Mar 2006, T. 2862-2864 (testifying that following an order from the Chief of the Zadar police
administration, Marko Miljani, a Croatian MUP member, placed road check-points near Biljane and Zemunik and
erected two barricades in Škabrnja; there was also a manned check-point in the hamlet of Ambar, Luka Brki, 7 Apr
2006, T. 3391-3392), 2864-2865 (testifying that they were armed with six light machine-guns, two hand-held launchers,
automatic and semi-automatic rifles and pistols), Marko Miljani, 30 Mar 2006, T. 2890-2891; Luka Brki, 5 Apr 2006,
T. 3224-3226 (testifying that the village guards wore second-hand uniforms from East Germany and that he was issued
with a an automatic rifle three to five days prior to 18 November 1991). There were also mortars in [kabrnja, Witness
MM-080, 8 Jun 2006, T. 5254-5255; Ex. 116, p. 2. In Nadin at this time, the only weapons were hunting rifles, Witness
MM-083, 16 Jun 2006, T. 5731.
676 Marko Miljani, 29 Mar 2006, T. 2863, 2871; Tomislav [egari}, Ex. 826, p. 2. There is also evidence of snipers
shooting at Škabrnja, Neven Šegari, Ex. 251, p. 2. Nadin was shelled on 18 September 1991 from the direction of the
Case No. IT-95-11-T 87 12 June 2007
were killed, and it was decided to evacuate the civilian population, following which only members
of the reserve police force and the volunteers remained in [kabrnja to guard the village.677 Around
2 October 1991, Nadin was attacked by the JNA, whereupon two men were killed.678 This attack
was conducted in order to deblockade the road from Benkovac to the airport in Zemunik.679 On 9
October 1991, an agreement was concluded between, inter alia, the 9th Corps command located in
Knin and representatives of the Zadar municipality on cessation of combat operations, raising of the
blockade of Zadar, and a pull-out of JNA from the Zadar garrison and the Zemunik airport to
Benkovac.680
237. On 10 October 1991, Marko Miljani} was appointed commander for the defence of
[kabrnja, Nadin, Gornji Zemunik, Donji Zemunik, Prkos, Gorica, Galovac and Glavica.681 This
defence force was called the Škabrnja Independent Battalion and consisted of some 730 reserve
police and volunteers from the local area.682 The Škabrnja Independent Battalion placed minefields
in and around Škabrnja.683 On 6 November 1991, the villagers who had been evacuated on 2
October returned to Škabrnja.684
238. In 1991, units of the JNA 9th Corps, of the Benkovac TO and of the SAO Krajina police
were active in the area of Northern Dalmatia, including in the areas around [kabrnja, Nadin and
Bru{ka.685 The 180th Motorised Brigade was located in Benkovac and was within the structure of
Serb villages of either Biljane or Lišane, following which women and children went to the Croat village of Polaa,
Witness MM-083, 16 Jun 2006, T. 5732.
677 Marko Miljani, 29 Mar 2006, T. 2863, 2865; Tomislav [egari}, Ex. 826, p. 2; Neven Šegari, Ex. 251, p. 2.
678 Witness MM-083, 16 Jun 2006, T. 5732-5733.
679 Nada Pupovac, 30 Oct 2006, T. 10342-10344 (testifying that the attack was ultimately unsuccessful due to
minefields on the Benkovac side of Nadin), 10421-10422; Zoran Laki, 27 Oct 2006, T. 10214-10216. According to
Witness MM-080, from the direction of [kabrnja, some of the Croat forces opened fire on JNA vehicles that moved
along the Benkovac-Zemunik road to Zemunik airport, where the JNA was based. According to information available to
the JNA, an independent battalion located in [kabrnja and consisting of 250 to 300 men, opened fire upon the JNA
vehicles, Witness MM-080, 8 Jun 2006, T. 5250, 5254-5255, 5260. See also Ex. 40, a report of the SAO Krajina TO,
indicates that on 16 September 1991, Milan Marti} ordered the Benkovac TO Staff to “provide as many men as possible
for Lieutenant Colonel @ivanovi} who would command the operation to lift the blockade of Zemunik”.
680 Milan Babi, 20 Feb 2006, T. 1604-1605; Ex. 1030. The Trial Chamber is unable to conclude on the basis of the
evidence whether this agreement was complied with, see Zoran Laki, 26 Oct 2006, T. 10148-10152 (testifying that the
pull-out of the JNA was obstructed by the ZNG and Croatian police), 27 Oct 2006, T. 10221-10222; Ex. 991 (providing
that by 14 October 1991 there had been no major difficulties during the evacuation of the Zadar garrison). Witness
MM-080 testified that during November 1991 the JNA convoys from Zadar garrison and Zemunik airport were shot at
by Croatian forces before they reached Biljane Donje, Witness MM-080, 8 Jun 2006, T. 5251, 5253, 5260. See also Ex.
784; Nada Pupovac, 31 Oct 2006, T. 10443.
681 Marko Miljani, 29 Mar 2006, T. 2885, 30 Mar 2006, T. 2895-2897; Luka Brki, 7 Apr 2006, T. 3388.
682 Marko Miljani, 29 Mar 2006, T. 2885, 30 Mar 2006, T. 2890-2891, 2908; Luka Brki, 5 Apr 2006, T. 3227, 7 Apr
2006, T. 3388-3389; Witness MM-080, 8 Jun 2006, T. 5254-5255. See also Zoran Laki, 26 Oct 2006, T. 10166, 27 Oct
2006, T. 10173.
683 Marko Miljani, 30 Mar 2006, T. 2895; Luka Brki, 7 Apr 2006, T. 3411-3412; Nada Pupovac, 30 Oct 2006, T.
10342-10343, 10349, 10368, 31 Oct 2006, T. 10368, 10448-10449; Zoran Laki}, 27 Oct 2006, T. 10173-10174.
684 Marko Miljani, 29 Mar 2006, T. 2868 (testifying that this happened following the signature in The Hague of a
truce); Tomislav [egari}, Ex. 826, p. 2; Neven Šegari, Ex. 251, p. 2.
685 Milan Babi, 20 Feb 2006, T. 1601; Ex. 1036.
Case No. IT-95-11-T 88 12 June 2007
the 9th Corps in Knin.686 In the autumn of 1991, the commander of the TO in Benkovac was Zoran
Laki}.687 The Chief of the SJB in Benkovac was Bo{ko Dra`i}.688
(c) Attack on [kabrnja and Nadin on 18 and 19 November 1991
239. Between 0600 and 0700 hours in the morning of 18 November 1991, a JNA mechanised
infantry unit of between 80 to 200 men with eight to nine APCs and three tanks advanced from the
Serb village of Smil~i} towards [kabrnja.689 The TO, including members of the Benkovac TO, also
participated in this operation and were resubordinated to the JNA.690 This JNA force was under the
command of Lieutenant-Colonel Mom~ilo Bogunovi} of the JNA 180th Motorised Brigade.691
There is evidence that both the Croatian and the Serb sides had mortars and artillery.692 From
around 0700 hours, Nadin was shelled from the direction of the Serb villages of Biljane or Lišane,
and the shelling continued throughout the day.693 Most of the women and children left Nadin and
went to Polaca, Zaton and Zadar, while only men and a few women remained in the village.694 At
around 0730 hours, Škabrnja was subjected to intensive shelling, also from the direction of Biljane
or Lišane, which lasted until 1230 hours.695
686 Witness MM-080, 8 Jun 2006, T. 5246. See also Nada Pupovac, 30 Oct 2006, T. 10339.
687 Zoran Laki, 26 Oct 2006, T. 10128-10130.
688 Witness MM-080, 8 Jun 2006, T. 5246. See also Ex. 959.
689 Luka Brki, 5 Apr 2006, T. 3225-3227 (testifying that the Škabrnja village guard was deployed during the night
between 17 and 18 November 1991, see also Luka Brki}, 5 Apr 2006, T. 3256, 7 Apr 2006, T. 3395, 3434-3435; Zoran
Laki, 26 Oct 2006, T. 10155-10156, 10159-10160, 10166 (testifying that about 110 men took part); Nada Pupovac, 30
Oct 2006, T. 10349 (testifying that “some 200 soldiers on the part of the JNA” participated); Neven Šegari, Ex. 251, p.
4. Command posts were established in Gornji Biljani and in the hamlet of Trljuge, Luka Brki, 5 Apr 2006, T. 3255).
See also Ex. 285 (which makes reference to tanks and APCs (called “BOVs”) in the areas of Ambar, west of Škabrnja
and in Biljane Donje). There is also evidence that some of the column went through Gornji Zemunik and that before
reaching Ambar some of the vehicles turned to the church of St. Luke, Luka Brki, 7 Apr 2006, T. 3434; Ex. 285; Ex.
107, p. 1. Luka Brki testified that Captain Dragan’s White Eagles (“Beli Orlovi”) participated in the attack on
Škabrnja, however the Trial Chamber notes that it has not been furnished with any evidence that Captain Dragan
commanded a unit by this name, Luka Brki, 7 Apr 2006, T. 3427.
690 Nada Pupovac, 30 Oct 2006, T. 10345, 31 Oct 2006, T. 10399, 10425; Ex. 107, pp 1, 3-4 (indicating that the TO was
to seal off the area and prevent intervention and that coordination between the TO and the JNA was initially poor but
improved). Zoran Laki testified that the Benkovac TO participated with a unit of 25-30 men, who were deployed in the
hamlet Skori in the Biljani Donji area and that 12 of these TO members relocated wounded civilians and soldiers to
Biljani Donji using two minibuses and an ambulance, Zoran Laki, 26 Oct 2006, T. 10158-10159, 10163, 10168, 27
Oct 2006, T. 10178, 10248, 30 Oct 2006, T. 10278; Nada Pupovac, 30 Oct 2006, T. 10345, 10347, 10356-10358, 31
Oct 2006, T. 10445. Some of the JNA tank crews were manned to full strength by TO members from other locations,
Zoran Laki, 26 Oct 2006, T. 10156 (see also Marko Miljani, 30 Mar 2006, T. 2929, testifying that he was told that
some tank crews included volunteers from Serbia; Ex. 616, regarding volunteers from Serbia and BiH who were joined
with the Benkovac TO). The Trial Chamber notes that Ex. 116, Ex. 117, Ex. 118, Ex. 411 and Ex. 614 provide that
members of TO were present in Škabrnja and Nadin on 18 and 19 November 1991. The Trial Chamber notes Zoran
Laki’s testimony that no other units from the Benkovac TO, than those listed above, participated in the attack, Zoran
Laki, 27 Oct 2006, T. 10190-10192, 30 Oct 2006, T. 10277. On the participation of the TO in the attack see also
Veljko Džakula, 17 Jan 2006, T. 417-418.
691 Witness MM-080, 8 Jun 2006, T. 5262; Ex. 107. See also Zoran Laki, 26 Oct 2006, T. 10154.
692 Luka Brki, 5 Apr 2006, T. 3256, Zoran Laki, 26 Oct 2006, T. 10166, Ex. 285, Nada Pupovac, 30 Oct 2006, T.
10354-10355, 31 Oct 2006, T. 10369.
693 Witness MM-083, 16 Jun 2006, T. 5732, 5735, 5737.
694 Witness MM-083, 16 Jun 2006, T. 5734-5735.
695 Marko Miljani, 29 Mar 2006, T. 2869; Neven Šegari, Ex. 251, p. 4; Tomislav Šegari, Ex. 826, pp 2-3.
Case No. IT-95-11-T 89 12 June 2007
240. When the column reached the junction of the roads leading to Biljani Donji and Zadar,
Lieutenant Miodrag Stevanovi} and a soldier were killed after having left their APC.696 The
evidence is conflicting as to the reason for their leaving the APC.697 Thereafter, intensive fire
commenced.698 Croatian forces shot at the JNA tanks and soldiers including from some of the
houses.699 A ZNG unit fired rockets at the JNA column from the elevation Ražovljeva Glavica.700
Helicopters were also used by the JNA to deploy ground troops in the vicinity of Škabrnja.701
Cluster bombs dropped from JNA aircraft were also used in the attack.702
241. The church of the Assumption of the Virgin in the centre of Škabrnja was shot at by a JNA
tank.703 At one point, tanks attempted to enter the church of the Assumption of the Virgin but were
stopped by Captain Jankovi, a member of the JNA.704 Following this, and without authorisation by
Captain Jankovi, several soldiers entered the church and fired their weapons.705 A tank opened fire
in the direction of the school in Škabrnja.706 There is evidence that fire was opened on private
houses by tanks and using hand-held rocket launchers.707
696 Nada Pupovac, 30 Oct 2006, T. 10345-10346; Zoran Laki, 26 Oct 2006, T. 1016, 27 Oct 2006, T. 10232-10233.
697 Neven Šegari, 29 Mar 2006, T. 2835, testifying that no warning was given; Nada Pupovac, 30 Oct 2006, T. 10351-
10353; Zoran Laki, 26 Oct 2006, T. 10161, both testifying that a warning was given by Lieutenant Stevanovi using a
megaphone after they left the APC.
698 Marko Miljani, 29 Mar 2006, T. 2869, testifying that fire was opened first by the JNA column and artillery at
around 0730 hours; Luka Brki, 5 Apr 2006, T. 3229-3231 (testifying that shells hit his brother’s house), 3255
(testifying that the map in Ex. 285 accurately describes that fire was first opened on Škabrnja at 0730 hours from the
direction of Ambar), 7 Apr 2006, T. 3397, 3417; Zoran Laki, 26 Oct 2006, T. 10161-10162, 27 Oct 2006, T. 10174,
10233-10234; Nada Pupovac, 30 Oct 2006, T. 10347, 10354; Tomislav [egari}, Ex. 826, p. 2; Ex. 984, Annex 9.
699 Marko Miljani, 29 Mar 2006, T. 2876 (testifying that around 1400 hours he and Luka Škara were by the church of
the Assumption of the Virgin and tried to hit the tanks which had entered the village centre using a hand-held rocket
launcher, but they stopped because civilians, including women, children and old men were around the tanks with their
hands on their necks); Luka Brki, 5 Apr 2006, T. 3232-3233, 3246, 3248; Nada Pupovac, 30 Oct 2006, T. 10356,
10358, 31 Oct 2006, T. 10392; Zoran Laki, 27 Oct 2006, T. 10173-10174 See also Ex. 109.
700 Nada Pupovac, 30 Oct 2006, T. 10354-10355, 31 Oct 2006, T. 10369. See also Marko Miljani, 30 Mar 2006, T.
2901-2902, confirming that a ZNG unit was present at this elevation.
701 Marko Miljani, 29 Mar 2006, T. 2870, 2075 (testifying that helicopters arrived at a meadow called Jabuka three or
four times and deployed troops about 30 troops each time, who wore “dark uniforms”). The Trial Chamber notes that
Zoran Laki testified (27 Oct 2006, T. 10239-10240) that he heard neither helicopters nor airplanes during the attack.
However, the Trial Chamber does not find this evidence credible in light of the direct evidence, Marko Miljani, 29 Mar
2006, T. 2870; Luka Brki, 5 Apr 2006, T. 3230; Neven Šegari, Ex. 251, p. 4.
702 Marko Miljani, 29 Mar 2006, T. 2870, 30 Mar 2006, T. 2925; Luka Brki, 5 Apr 2006, T. 3230; 7 Apr 2006, T.
3393-3394.
703 Luka Brki, 7 Apr 2006, T. 3393, 3417; Ex. 984, Annex 9; Ex. 922, p. 7. Nada Pupovac testified that the bell tower
was shot at by the tank because there was a Croatian machine-gun nest there, Nada Pupovac, 30 Oct 2006, T. 10355-
10356, 31 Oct 2006, T. 10431-10433, 1 Nov 2006, T. 10458. The Trial Chamber does not find this evidence convincing
in light of the contrary evidence.
704 Luka Brki, 5 Apr 2006, T. 3242-3243.
705 Luka Brki, 5 Apr 2006, T. 3242-3243.
706 Luka Brki, 5 Apr 2006, T. 3239.
707 Luka Brki, 5 Apr 2006, T. 3239, 3246 (testifying that sniper fire was opened from a private house which was
subsequently targeted by a tank); Zoran Laki, 27 Oct 2006, T. 10175; Ex. 117, p. 3; Ex. 984, Annex 9, Statement of
Svetka Miljani}, Statement of Snježana Ferica.
Case No. IT-95-11-T 90 12 June 2007
242. During the fighting, civilians fled south.708 Civilians were also taken out of Škabrnja by
JNA and TO forces and transported to territory under the control of Croatian forces.709 Village
guards Luka Brki, Ante “Neno” Gurlica and Marin Gurlica were taken by bus to Benkovac, where
they stayed overnight after which they were taken to Knin.710 About half of Škabrnja was controlled
by the Serb forces by 1400 hours.711 The fighting in Škabrnja lasted until dusk.712 There were two
dead and several wounded on the Serb side, whereas the Croatian side suffered about 15 killed.713
243. At 0500 hours in the morning of 19 November 1991, the Croatian forces withdrew from
Škabrnja.714 Around 0700 hours, the JNA convoy left Škabrnja and advanced along the road
towards Nadin, which was subsequently shelled.715 The convoy passed through Nadin around 1400
hours after which it withdrew to the Benkovac barracks.716 During the night of 19 September 1991,
“everything was burning” in Nadin.717
(d) Evidence of units present in Škabrnja
244. The Trial Chamber has been furnished with evidence describing the units present in
Škabrnja on 18 November 1991. The evidence shows that the JNA units were composed of soldiers
of different ethnicities.718 The JNA units were composed of regular soldiers and reservists from
708 Marko Miljani, 29 Mar 2006, T. 2880; Zoran Laki, 30 Oct 2006, T. 10311, testifying that more than 1,500
civilians of [kabrnja withdrew in the direction of Zadar; Bo{ko Brki}, Ex. 275, p. 2, stating that around 100 villagers
fled to a quarry in the forest, a pre-arranged meeting point should the village come under attack, after which they went
by foot to Prkos where buses eventually picked them up.
709 Luka Brki, 5 Apr 2006, T. 3251-3252. Nada Pupovac testified that over 150 uninjured civilians were taken by the
TO, first to Benkovac and then to a junction near the Croat village of Pristeg and the Serb village of Ceranje Gornje
where they crossed over to “Croatian territory”, Nada Pupovac, 31 Oct 2006, T. 10364, 10370. Zoran Laki testified
that when he arrived in Škabrnja at 1700 hours on 18 November 1991, he saw 120 or 130 civilians put up at the primary
school, and a nursery school, and that later that evening they were transported to “Croatian forces” using buses of the
“transport company of Benkovac”, Zoran Laki, 26 Oct 2006, T. 10164.
710 Luka Brki, 5 Apr 2006, T. 3233 (testifying that these three were members of the village guard but that they had
removed their camouflage uniforms by the time they were captured), 3250-3253 (also testifying that Ante “Neno”
Gurlica was beaten by a soldier before being transported away and that the three of them were beaten as they entered
the bus taking them to Benkovac), 3264-3265. See infra paras 278, 281.
711 Marko Miljani, 29 Mar 2006, T. 2880.
712 Marko Miljani, 29 Mar 2006, T. 2869-2870 (also testifying that civilians were killed in the shelling); Luka Brki, 7
Apr 2006, T. 3417; Zoran Laki, 26 Oct 2006, T. 10162-10163; Neven Šegari, Ex. 251, p. 5; Ivica Bilaver, Ex. 821, p.
2; Tomislav [egari}, Ex. 826, p. 2; Ex. 984, Annex 9. See also Nada Pupovac, 30 Oct 2006, T. 10354-10355. At one
point, the Croatian side blew up the reserve ammunition of the JNA, Marko Miljani, 29 Mar 2006, T. 2870-2871, 30
Mar 2006, T. 2902.
713 Marko Miljani, 29 Mar 2006, T. 2878; Zoran Laki, 26 Oct 2006, T. 10170; Ex. 377.
714 Marko Miljani, 30 Mar 2006, T. 2904-2905; Witness MM-083, 16 Jun 2006, T. 5736-5737; Nada Pupovac, 31 Oct
2006, T. 10365. See also Zoran Laki, 26 Oct 2006, T. 10165. After the hostilities had ended, the JNA found automatic
rifles, pistols, sniper rifles, mortars, anti-aircraft guns, and handheld rocket launchers, which were brought to the
Benkovac barracks, Zoran Laki, 26 Oct 2006, T. 10166-10167, 27 Oct 2006, T. 10173; Nada Pupovac, 31 Oct 2006, T.
10369. Luka Brki testified that when he was taken from Škabrnja to Benkovac he saw a large pile of weapons which
he believed were confiscated in Škabrnja, Luka Brki, 7 Apr 2006, T. 3406-3407.
715 Nada Pupovac, 31 Oct 2006, T. 10366-10367; Witness MM-083, 16 Jun 2006, T. 5738.
716 Nada Pupovac, 31 Oct 2006, T. 10366-10367; 10369-10370.
717 Witness MM-083, 16 Jun 2006, T. 5745-5746.
718 Luka Brki, 5 Apr 2006, T. 3243-3245, 7 Apr 2006, 3405-3406, 3420, 3441-3442 (stating that he believed Captain
Jankovi was a Serb).
Case No. IT-95-11-T 91 12 June 2007
neighbouring Serb villages.719 In addition to the uniforms ordinarily worn by members of the JNA,
officers of the JNA present in Škabrnja wore a mix of camouflage uniforms and ceremonial
uniforms.720
245. The TO present in Škabrnja wore the same uniforms, caps and helmets as the JNA.721
However, the TO also wore the Serbian flag on their uniforms and some members had a white band
on the left shoulder.722 There is evidence that some TO soldiers wore SAO Krajina patches on their
uniforms.723
246. Paramilitary units, in the evidence often referred to simply as “Chetniks”, were present in
Škabrnja and wore various kinds of JNA uniforms, some with an insignia with four Cyrillic “S”,
and different kinds of hats, including berets, fur hats with cockades and hats.724 Their faces were
painted, however the evidence shows that at least some of them appeared to be local.725
247. The evidence is insufficient to conclude whether members of the SAO Krajina MUP
participated in the attack on Škabrnja on 18 and 19 November 1991.726 The Prosecution alleges that
Goran Opai was a member of the police and present in Škabrnja at the time of the operation in
Škabrnja.727 The Defence denies both allegations.728 The Trial Chamber finds that the evidence
establishes beyond reasonable doubt that Goran Opai was a member of the Benkovac SJB special
unit on 18 and 19 November 1991. However, while the evidence establishes beyond reasonable
doubt that Goran Opai was present in Škabrnja at some point on 18 November 1991, it is
719 Luka Brki, 7 Apr 2006, T. 3419, 3421 (listing the villages of Zemunik Gornje, Veljane, Biljane, Gornje Biljane,
Djevrske, Kistanje, Lišane, and Rastevi), 3429-3430, 3440-3441.
720 Luka Brki, 5 Apr 2006, T. 3236-3237; Nada Pupovac, 31 Oct 2006, T. 10452-10453. For a description of the JNA
uniforms, see supra fn 283.
721 Nada Pupovac, 31 Oct 2006, T. 10452-10453. See also Ex. 117.
722 Nada Pupovac, 31 Oct 2006, T. 10453; Ex. 117, p. 3.
723 Luka Brki, 5 Apr 2006, T. 3237, 7 Apr 2006, T. 3426-3427.
724 Marko Miljani, 30 Mar 2006, T. 2918-2919; Tomislav [egari}, Ex. 826, pp 3, 5-6; Ex. 118, p. 1.
725 Tomislav [egari}, Ex. 826, pp 3-4.
726 Zoran Laki, 27 Oct 2006, T. 10258; Nada Pupovac, 31 Oct 2006, T. 10396, 10428; Milan Babi, 20 Feb 2006, T.
1607, Ex. 1036, L0092006; Ex. 116; Ex. 614. See also Ex. 411.
727 Prosecution Final Trial Brief, paras 189-190. The Prosecution relies upon Witness MM-003, 8 Mar 2006, T. 2024
(testifying that Goran Opai was a member of the “Benkovac special police” at the time of the operation in [kabrnja);
Milan Babi, 20 Feb 2006, T. 1607 (testifying that he had heard “that it wasn’t true that Goran Opai … had been
involved in the fighting all the time but that he had been there at the outset but later left”; see also Ex. 1036); Ex. 411
(identifying Goran Opai as a member of the Benkovac police special unit and that he gives information that killings
were committed in Škabrnja); Ex. 511, p. 18 (an undated typed list which provides that Goran Opai was a member of
the Benkovac police until 31 Oct 1991).
728 Defence Final Trial Brief, para. 19. The Defence relies upon Zoran Laki, 27 Oct 2006, T. 10258, 10263-10264, 30
Oct 2006, T. 10272 (testifying that Goran Opai was not a member of the Benkovac SJB and that he did not take part
in the fighting, see also Nada Pupovac, 31 Oct 2006, T. 10396, 10428); Ex. 116 (providing that “according to
unconfirmed data” members of “Opai’s group” carried out killings in Nadin); Ex. 511, p. 18.
Case No. IT-95-11-T 92 12 June 2007
insufficient to establish beyond reasonable doubt that he participated in events or crimes in
Škabrnja or Nadin on 18 or 19 November 1991.729
(e) Killings in Škabrnja and Nadin
(i) Killings at Slavko Šegari’s house in Ambar on 18 November 1991
248. In the morning of 18 November 1991, Neven [egari}, Ivica Bilaver, Lucia Šegari, Krsto
Šegari, Maja Grgica Šegari, Željko Šegari, Josip Miljani and Stana Vickovi were hiding in the
cellar of Slavko Šegari’s house in Ambar.730 Shortly after the first shelling, there was banging on
the door and they heard a voice outside asking who was in the cellar.731 They heard someone
outside say “Come out you Ustase, we are going to slaughter you all”.732 When the people in the
cellar opened the door, about ten JNA soldiers entered.733 The soldiers’ faces were painted, and
they wore plain olive green uniforms with a red star on the buttons and on the epaulets.734 After
having taken a rifle and a pistol which were elsewhere in the house, some of the soldiers left.735
Shortly thereafter five or six “Serb volunteers, who were from the neighbouring villages” arrived.736
They threatened the people in the cellar and forced them out; everyone left the cellar except Lucia
Šegari.737 Just as the people exited the cellar, Neven Šegari saw a ”Chetnik” fire a burst of
gunfire into the cellar.738 About five minutes later, when Neven Šegari and Željko Šegari were
forced to enter the cellar to look for weapons, Neven Šegari saw that Lucia Šegari was lying dead
729 Regarding membership in the Benkovac SJB “special unit”, the Trial Chamber notes Ex. 411, Ex. 511 and Milan
Babi, 20 Feb 2006, T. 1601, 1607 (see also Ex. 1036). The Trial Chamber notes that in this respect Witness MM-003’s
testimony is corroborated (Witness MM-003, 8 Mar 2006, T. 2024). Regarding his presence in Škabrnja and Nadin, the
Trial Chamber notes Milan Babi’s hearsay evidence that Goran Opai was only present at the “outset” in Škabrnja on
18 November 1991, that Nada Pupovac, who was present in Škabrnja 18 November 1991, denies Goran Opai’s
presence, and that Ex. 116 only refers to “unconfirmed data” that “Opai’s group” killed members of a family in Nadin
and three unidentified captives from Škabrnja. The Trial Chamber considers that the contrary evidence of Witness MM-
003 is not sufficiently credible in this respect. The Trial Chamber notes the hearsay evidence (Marko Miljani, 29 Mar
2006, T. 2879-2880) that Goran Opai, nicknamed “Klempa”, was heard over the radio in Škabrnja on 18 November
1991, but cannot make any finding based on this evidence (see also Milan Babi, 20 Feb 2006, T. 1607; Ex. 1036).
730 Neven Šegari stated that he was in the cellar with his grandmother Lucia Šegari (age 62), his grandfather Krsto
Šegari (age 60 or 61), his cousin Željko Šegari (age 14 or 15), his great grandmother Maja Grgica Šegari (age 94),
Ivo Bilaver (age 14 or 15), and Josip/Joso Miljani. However, right before the attack, Maja Grgica Šegari was brought
back to Neven Šegari’s father Mile Šegari’s house, Neven Šegari, 29 Mar 2006, T. 2836, 2841-2842, Ex. 251, pp 3,
5; Ivica Bilaver, Ex. 821, p. 2 (also stating that the house was close to St. Mary’s church in Ambar); Ex. 270, F-2. Ivica
Bilaver was 14 or 15 years old, Neven Šegari, 29 Mar 2006, T. 2836; Ivica Bilaver, Ex. 821, p. 2. See also Ex. 1042,
Tab 2; Ex. 1043, Tab 2, DVD 4, pp 32-38.
731 Neven Šegari, Ex. 251, p. 3.
732 Neven Šegari, Ex. 251, p. 3. There is also evidence that women and children were being called “Usta{as” and were
insulted, Ex. 984, Annex 9, Statement of Svotka Miljani}, Statement of Snježana Ferica.
733 Neven Šegari, 29 Mar 2006, T. 2855-2856, Ex. 251, p. 3.
734 Neven Šegari, Ex. 251, p. 3.
735 Ivica Bilaver, Ex. 821, p. 2; Neven Šegari, 29 Mar 2006, T. 2834-2835, 2855-2856, Ex. 251, p. 3.
736 Neven Šegari, Ex. 251, p. 3; Neven Šegari, 29 Mar 2006, T. 2856; Ivica Bilaver, Ex. 821, p. 2.
737 Neven Šegari, Ex. 251, p. 3.
738 Neven Šegari, Ex. 251, p. 3.
Case No. IT-95-11-T 93 12 June 2007
a few metres from the door.739 As Neven Šegari again left the cellar he saw Stana Vickovi} and
Josip Miljani} being forced to kneel after which a soldier, wearing a camouflage uniform with a
patch on his sleeve reading “SAO Krajina”, shot them in the head.740 After this, Krsto Šegari was
beaten by five or six soldiers wearing green camouflage uniforms with SAO Krajina patches on
their sleeves and red stars on the buttons, including Ðuro Kosovi, whom Neven Šegari
recognised.741 Ðuro Kosovi then shot Krsto Šegari in the back of the head.742 The soldiers
standing around outside at this point in time were a mix of JNA soldiers and soldiers with SAO
Krajina patches on their camouflage uniforms.743
249. After this, Ðuro Kosovi, using a list of inhabitants in the village, questioned Neven [egari
about where some of the inhabitants lived and if they had weapons.744 When Neven Šegari said
that he did not know, Ðuro Kosovi left.745 Subsequently, the soldier who had killed Stana
Vickovi and Josip Miljani forced Neven Šegari and Željko Šegari against the wall of the house,
however a “JNA officer” intervened and prevented their killing.746 The soldiers then took Ivica
Bilaver, Neven [egari} and Željko [egari} to Smil~i}.747
(ii) Killings at Petar Pavi~i}’s house in Škabrnja on 18 November 1991748
250. When the attack on [kabrnja started, Tomislav [egari} hid in the cellar of Petar “Pe{o”
Pavi~i}’s house in Škabrnja together with about 25 to 30 civilians, including women, children and
739 Neven Šegari, Ex. 251, p. 3. The Trial Chamber notes that Ex. 305, autopsy report, p. 22, list a Luca Šegari, born
1920, who was identified by inter alia her two sons Slavko Šegari and Mile Šegari (see also Ex. 323, p. 10; Ex. 302).
The autopsy report indicates that she was shot multiple times but that she died from a shot at close range to the head.
Ex. 377, p. 12, lists a Luca Šegari, born 1922, who was killed by gunshot to the head. The Trial Chamber finds that
this evidence refers to Lucia Šegari. In this context, the Trial Chamber notes Ex. 270, F-14, which lists a Lucka
Šegari, however due to the discrepancies between Ex. 305 and Ex. 270, F-14, the Trial Chamber cannot conclude that
Ex. 270, F-14 refers to Lucia Šegari. Neven Šegari testified that Ex. 270, F-14 does not show Lucia Šegari, Neven
Šegari, 29 Mar 2006, T. 2840.
740 Neven Šegari, Ex. 251, p. 3. Regarding Stana Vickovi}, Ex. 344; Ex. 825, ERN 0469-0704; Ex. 377, p. 13, listing
him as a “Croat civilian”; Ex. 323, p. 9; Ex. 302. Regarding Josip Miljani}, Ex. 360; Ex. 825, ERN 0469-0706; Ex. 377,
p. 9, listing him as a “Croat civilian”; Ex. 323, p. 9; Ex. 302. The Trial Chamber notes that Ivica Bilaver’s statement
(Ex. 821, p. 2) is less detailed than that of Neven Šegari but does not find that the discrepancy between their evidence
gives rise to reasonable doubt as to the killing of Stana Vickovi and Josip Miljani. At one point, either when Lucia
Šegari or the group of adults was shot, Ivica Bilaver was wounded in the leg by a ricochet, Ivica Bilaver, Ex. 821, p. 2;
Neven Šegari, Ex. 251, p. 3; Ex. 270, F-2, (Neven Šegari, 29 Mar 2006, T. 2841-2842, correcting the identities of the
bodies in this photo).
741 Neven Šegari, 29 Mar 2006, T. 2857; Ex. 251, p. 3 (also stating that Ðuro Kosovi was from Smokovi).
742 Neven Šegari, Ex. 251, p. 3; Ex. 270, F-4 and F-5 (see also Neven Šegari, 29 Mar 2006, T. 2841-2842); Ex. 350;
Ex. 825, ERN 0469-0704; Ex. 377, p. 12, listing him as a “Croat civilian”; Ex. 323, p. 9; Ex. 302.
743 Neven Šegari, Ex. 251, p. 3. Neven Šegari testified that a few of them were from a neighbouring village, Neven
Šegari, 29 Mar 2006, T. 2856-2857.
744 The list included the names of Mile Šegari, Slavko Miljani, see infra para. 255. Branko Šegari, Marko Bilaver,
Marko Miljani, and Stipe Miljani, Neven [egari}, Ex. 251, pp 3-4.
745 Neven Šegari, 29 Mar 2006, T. 2834, Ex. 251, p. 4.
746 Neven Šegari, 29 Mar 2006, T. 2832, 2834, Ex. 251, p. 4.
747 Neven Šegari, Ex. 251, p. 4; Ivica Bilaver, Ex. 821, pp 2-3 (also stating that he saw that the house of Stana
Vickovi} was burning). Ivica Bilaver was taken to the hospital in Benkovac, Ivica Bilaver, Ex. 821, p. 3.
748 The Trial Chamber notes that Ivan Jeli stated that Pešo was the nickname of Petar Pavii, Ivan Jeli, Ex. 825, p. 3.
Case No. IT-95-11-T 94 12 June 2007
elderly people.749 Around 1230 hours the shelling ceased, and there was silence for around 20
minutes whereupon Eva [egari} went outside the cellar.750 Shortly thereafter, Tomislav [egari
heard men shouting that everyone should come out of the cellar or they would throw in hand
grenades.751 The people in the cellar started to leave with their hands up. Outside near the entrance
to the cellar, there was a group of more than ten armed “Chetniks” from the local area who wore
camouflage uniforms and a variety of headgear.752
251. As they left the cellar, people were pulled to the side and killed by the “Chetniks”. Some of
these people were first beaten with rifle butts and then killed.753 The following persons were killed
outside Petar Pavii’s house:754 Jozo Brki},755 Jozo Miljani},756 Slavka Miljani},757 Mile
Pavi~i},758 Petar Pavi~i},759 Ilija Ražov,760 Kata “Soka” Rogi},761 Ivica [egari},762 Rade [egari}763
749 Tomislav [egari}, Ex. 826, p. 3 (at p. 4 explaining that the house was located in the centre of Škabrnja). Ex. 270,
Photo F-9 depicts the basement of Petar “Pešo” Pavi~i}’s house, Neven Šegari, 29 Mar 2006, T. 2845. See also Ex.
1042, Tab 2; Ex. 1043, Tab 2, DVD 4, pp 39-42.
750 Tomislav [egari}, Ex. 826, p. 3.
751 Tomislav [egari}, Ex. 826, p. 3.
752 Tomislav [egari}, Ex. 826, pp 3-4, stating that he particularly remembers one called “Kosovi” but stated that that
was a common surname of people coming from the village of Zemunik.
753 Tomislav [egari}, Ex. 826, p. 3; Ex. 984, Annex 9, statement of Svetka Miljani}.
754 Ex. 984, Annex 9, Statement of Svetka Miljani}. The Trial Chamber notes that Ex. 984, Annex 9, statement of
Snježana Ferica, lists an “Iviša Ražov” and concludes that this refers to Ive Ražov. There is no further evidence
regarding this person and the Trial Chamber cannot conclude beyond reasonable doubt that Ive Ražov was among those
killed outside Petar Pavii’s house. In relation to this victim, the Trial Chamber recalls its findings on the interpretation
of the Indictment, see supra paras section I C.
755 Ex. 354, Autopsy report; Ex. 984; Annex 9, Statement of Svetka Miljani}; Ex. 270, F-6 (Neven Šegari, 29 Mar
2006, T. 2844); Ex. 825, ERN 0469-0706; Ex. 323, p. 9; Ex. 302; Ex. 377, p. 6, listing him as a “Croat civilian”. The
Trial Chamber notes that Annex I to the Indictment lists a Joso Brki as killed in Škabrnja and finds that this refers to
the same victim.
756 Ex. 984, Annex 9, Statement of Svetka Miljani}. The Trial Chamber notes that Annex I to the Indictment lists a
Josip Miljani and recalls its finding that this person was killed at Slavko Šegari’s house in Ambar. The Trial Chamber
recalls that Petar Pavi~i}’s house was located in the centre of Škabrnja and not in the hamlet of Ambar (Tomislav
[egari}, Ex. 826, p. 4). The Trial Chamber therefore considers that Jozo Miljani, who was killed at Petar Pavi~i}’s
house, is a different person from Josip Miljani} who is listed in Annex I to the Indictment.
757 Ex. 984, Annex 9, Statement of Svetka Miljani}, stating that her husband Jozo Miljani and her mother-in-law
Slavka Miljani were killed at this house. The Trial Chamber notes that Annex I to the Indictment lists a Slavko
Miljani but considers in light of the information in this statement that this is a different person. In relation to this
victim, the Trial Chamber recalls its findings on the interpretation of the Indictment, see supra section I C.
758 Ex. 362, Autopsy report; Ex. 984; Annex 9, Statement of Svetka Miljani}; Ex. 270, F-10 and F-11 (Neven Šegari,
29 Mar 2006, T. 2846); Ex. 825, ERN 0469-0708; Ex. 323, p. 9; Ex. 302; Ex. 377, p. 3, listing him as a “Croat
defender”. See also Ex. 377, pp 3-4.
759 Tomislav [egari}, Ex. 826, p. 3, stating that he saw the dead body of Petar “Pešo” Pavii outside the house; Ex.
365, Autopsy report; Ex. 984; Annex 9, Statement of Svetka Miljani}; Ex. 825, ERN 0469-0708; Ex. 323, p. 9; Ex. 302;
Ex. 377, p. 10, listing him as a “Croat civilian”.
759 Ex. 362, Autopsy report; Ex. 984; Annex 9, Statement of Svetka Miljani}; Ex. 270, F-10 and F-11 (Neven Šegari,
29 Mar 2006, T. 2846); Ex. 825, ERN 0469-0708; Ex. 323, p. 9; Ex. 302; Ex. 377, p. 3, listing him as a “Croat
defender”.
760 Neven Šegari, 29 Mar 2006, T. 2844, testifying that the person in Ex. 270, F-5, is Ilija Ražov. In relation to this
victim, the Trial Chamber recalls its findings on the interpretation of the Indictment, see supra section I C.
761 Neven Šegari, 29 Mar 2006, T. 2841-2843; Tomislav [egari}, Ex. 826, p. 4; Ex. 270, F-3 (Neven [egari}, 29 Mar
2006, T. 2841-2843); Ex. 338, Autopsy report; Ex. 984, Annex 9, Statement of Svetka Miljani} and statement of
Snježana Ferica; Ex. 825, ERN 0469-0702; Ex. 323, p. 9; Ex. 302; Ex. 377, p. 11, listing her as a “Croat civilian”.
762 Ex. 363, Autopsy report; Ex. 984; Annex 9, Statement of Svetka Miljani}; Ex. 825, ERN 0469-0708; Ex. 323, p. 9;
Ex. 302; Ex. 377, p. 4, listing him as a “Croat defender”. See also Ex. 377, pp 3-4.
Case No. IT-95-11-T 95 12 June 2007
and Vice Šegari.764 After this, women and children were lined up and insulted and asked where
their men were.765 Subsequently, they were made to walk towards Ambar while being threatened by
the “Chetniks”.766 There were many JNA officers and soldiers in the area and the JNA officers
prevented the “Chetniks” from further killings.767
(iii) Killings at Pere Sopi’s house in Nadin on 19 November 1991
252. On 19 November 1991, soldiers wearing JNA uniforms came to the house of Pere Sopi in
Nadin where they found Novica Atelj, Stoja Brki, Danka Brzoja, Ika irjak, Maša irjak, Jakov
Šestan and Marija Šestan. After having taken Novica Atelj and killed him outside the house, the
soldiers returned to the house and killed the remaining civilians.768
763 Ex. 358, Autopsy report; Ex. 984, Annex 9, Statement of Svetka Miljani and statement of Snježana Ferica; Ex. 270,
F-8 (Neven Šegari, 29 Mar 2006, T. 2845); Ex. 825, ERN 0469-0706; Ex. 323, p. 9; Ex. 302; Ex. 377, p. 12, listing
him as a “Croat civilian”.
764 Tomislav [egari}, Ex. 826, p. 3, stating that he saw the dead body of Vice Šegari outside the house; Ex. 359,
Autopsy report, Ex. 984; Annex 9, Statement of Svetka Miljani}; Ex. 825, ERN 0469-0706; Ex. 323, p. 9; Ex. 302; Ex.
377, p. 12, listing him as a “Croat civilian”.
765 Ex. 984, Annex 9, Statement of Svetka Miljani}, Annex 9, Statement of Snježana Ferica.
766 Tomislav [egari}, Ex. 826, p. 4.
767 Tomislav [egari}, Ex. 826, p. 4.
768 Witness MM-083, 16 Jun 2006, T. 5736-5745; Ex: 109, p. 3; Ex. 302; Ex. 323, p. 7; Ex. 324 to Ex. 330 (these
autopsy reports show that each victim was shot in the head at point-blank range as well as between five and eleven
times from a distance of more than one metre); Ex. 825 ERN 0469-0710, 0469-0712, 0469-0714 (indicating that all
victims wore civilian clothes). See also Ex. 1042, Tab 2; Ex. 1043, Tab 2, DVD 5, pp 12-20.
Case No. IT-95-11-T 96 12 June 2007
(iv) Other killings in Škabrnja and Nadin
253. Grgica “Maja” Šegari, who was between 80 and 96 years old and infirm as a result of a
stroke, was killed in Mile Šegari’s house in Ambar on 18 November 1991.769
254. Ante Ra`ov was killed on 18 November 1991 in Škabrnja. The evidence shows that Ante
Ražov was beaten and had one of his ears cut off before being shot in the head in front of his
mother.770 Ante Ražov is listed in Annex I to the Indictment as a civilian victim. However, the
evidence shows that he was a member of the Croatian defence force in Škabrnja. Nevertheless, it is
established beyond reasonable doubt that he was not taking an active part in the hostilities when he
was killed. In this respect, the Trial Chamber considers that the Defence has been put on notice of
this victim by virtue of Annex I to the Indictment. The evidence is insufficient to conclude who
perpetrated this killing.
255. Slavko Miljani was killed in Škabrnja on 18 November 1991. Slavko Miljani is listed in
Annex I to the Indictment as a civilian victim, however the evidence shows that he was a member
of the Croatian defence force in Škabrnja.771 The Trial Chamber finds that it has not been
established beyond reasonable doubt that Slavko Miljani was taking no active part in the hostilities
at the time of his death.
256. On 18 November 1991, several “Chetniks” beat on the road from the centre of Škabrnja
towards Ambar. Thereafter, the “Chetniks” put Šime Šegari and Bude Šegari in a JNA APC,
which drove away in the direction of Biljani. Subsequently, their bodies were handed over to their
relatives. The evidence shows that [ime [egari} and Bude [egari} were members of the Croatian
defence force in Škabrnja.772 The evidence further shows that they were taken to Knin where they
were killed.773
257. There is also evidence that the following persons were killed in Škabrnja and Nadin on 18 or
19 November 1991: Ivan Babi, Luka Bilaver, Marija Brki} (born 1943), Marko Brki}, Željko
769 Marko Miljani, 30 Mar 2006, T. 2920; Neven Šegari, Ex. 251, p. 5; Ex. 356, Autopsy report; Ex. 377, p. 12, listing
her as a “Croat civilian”; Ex. 825, ERN 0469-0706. See also Ex. 323, p. 9; Ex. 302.
770 Marko Miljani, 29 Mar 2006, T. 2871; Ex. 270, F-1 (Neven [egari}, 29 Mar 2006, T. 2841); Ex. 364, Autopsy
report; Ex. 825, ERN 0469-0708; Ex. 377, p. 3, listing him as a “Croat defender”; Ex. 323, p. 9; Ex. 302. See also Nada
Pupovac, 31 Oct 2006, T. 10414, testifying that she heard that there had been a man without an ear, Ex. 117, p. 4 (a
member of the military police battalion stated that a ZNG member had been shot behind a house and that members of
the TO had cut off his ear); Ex. 411, Report on the murder of civilians in [kabrnja.
771 Slavko Miljani is listed as a civilian in Annex I to the Indictment. Ex. 357, Autopsy report; Ex. 825, ERN 0469-
0706; Ex. 377, p. 3, listing him as a “Croat defender”; Ex. 323, p. 9; Ex. 302. See also Tomislav [egari}, Ex. 826, p. 5.
772 Tomislav [egari}, Ex. 826, p. 4. The Trial Chamber notes that each is listed as a “Croat defender” in Ex. 377, p. 4.
773 Ex. 825, ERN 0469-0702, ERN 0469-0722, 0469-0727. Regarding the injuries on Šime Šegari, Ex. 333, Autopsy
report, and Ex. 825, ERN 0469-0702. See also Ex. 323, p. 9; Ex. 302. The Trial Chamber notes that Bude Šegari is not
listed in Annex I of the Indictment and refers to the section on the interpretation of the Indictment, see supra section I
C. The Trial Chamber has not been provided with an autopsy report concerning Bude Šegari.
Case No. IT-95-11-T 97 12 June 2007
urkovi, Marija Dra`ina, Ana Juri}, Grgo Juri}, Petar Juri}, Niko Pavi~i}i, Josip Perica, Ljubo
Perica, Ivan Ražov, Jela Ra`ov, Branko Rogi, Nikola Rogi}, Kljajo Šegari, Lucka/Luca Šegari,
Mara @ili}, Pavica @ili}, Roko @ili}, Tadija @ili} and Marko @upan.774
258. There is evidence that Petar Rogi and Miljenko Šegari from Škabrnja were killed in
Benkovac on 18 November 1991.775 There is also evidence that Milka Žili from Škabrnja was
wounded by a shell and died in Zadar on 18 November 1991.776
774 The Trial Chamber notes that Kljajo Šegari, Lucka/Luca Šegari, Luka Bilaver, and Branko Rogi are not listed as
civilian victims in Annex I to the Indictment but recalls its findings regarding the interpretation of the Indictment, para.
13. Regarding Ivan Babi, Ex. 305, Autopsy report, pp 24-25 (killed by shrapnel); Ex. 377, p. 5, listing him as a “Croat
civilian”; Ex. 323, p. 10; Ex. 302. Regarding Luka Bilaver, Ex. 270, F-15 (on which photograph the victim is wearing
civilian clothes). The Trial Chamber notes that Ex. 377, p. 5, and Ex. 825 ERN 0469-0718 contain a person with the
same name who died of hypothermia on 1 December 1991. However, the Trial Chamber cannot conclude that this is the
same person as Luka Bilaver in Ex. 270, F-15. Regarding Marija Brki}, Ex. 334, Autopsy report (killed by gunshot to
the head inflicted from close range); Ex. 825, ERN 0469-0702; Ex. 377, p. 6, listing her as a “Croat civilian”; Ex. 323,
p. 9; Ex. 302. Regarding Marko Brki}, Ex. 361, Autopsy report (killed by gunshots to the head inflicted at point-blank
range); Ex. 825, ERN 0469-0708; Ex. 377, p. 7, listing him as a “Croat civilian”; Ex. 323, p. 9; Ex. 302. Regarding
Željko urkovi, Ex. 335, Autopsy report; Ex. 825, ERN 0469-0702 (killed by several gunshots including one inflicted
at point-blank range to the head). The Trial Chamber notes that Ex. 270, F-17, contains a “Zoran urkovi. In light of
the details provided in the autopsy report and visible on F-17, the Trial Chamber concludes beyond reasonable doubt
that this is Željko urkovi. The Trial Chamber notes that on the photograph F-17 the victim is dressed in civilian
clothes. Regarding Marija Dra`ina, Ex. 367, Autopsy report (killed by gunshot to the head inflicted at point-blank
range); Ex. 825, ERN 0469-0710; Ex. 377, p. 7, listing her as a “Croat civilian”; Ex. 302; Ex. 323, p. 9. Regarding Ana
Juri}, Ex. 332, Autopsy report (killed by blunt trauma to the head); Ex. 377, p. 8, listing “Anica Juri}” as a “Croat
civilian”; Ex. 323, p. 9; Ex. 302. Regarding Grgo Juri}, Ex. 355, Autopsy report (killed by multiple gunshot wounds to
the head inflicted at a distance of a maximum of one metre); Ex. 825, ERN 0469-0706; Ex. 377, p. 8, listing him as a
“Croat civilian”; Ex. 323, p. 9; Ex. 302. Regarding Petar Juri}, Ex. 346, Autopsy report (killed by gunshots to the head
inflicted from a point-blank to close range); Ex. 825, ERN 0469-0704; Ex. 377, p. 9, listing him as a “Croat civilian”;
Ex. 323, p. 9; Ex. 302. Regarding Niko Pavi~i}i, Autopsy report Ex. 343 (killed by gunshots to the head and thorax
inflicted from close range); Ex. 825, ERN 0469-0704; Ex. 377, p. 9, listing him as a “Croat civilian”; Ex. 323, p. 9; Ex.
302. Regarding Josip Perica, Ex. 331, Autopsy report (killed by gunshots, including to the head at point-blank range);
Ex. 825, ERN 0469-0702; Ex. 377, p. 10, listing him as a “Croat civilian”; Ex. 323, p. 9; Ex. 302 (listed as “Joso”).
Regarding Ljubo Perica, Ex. 347, Autopsy report (killed by several gunshot wounds, including to the head at pointblank
range); Ex. 825, ERN 0469-0704; Ex. 377, p. 10, listing him as a “Croat civilian”; Ex. 323, p. 9; Ex. 302.
Regarding Ivan Ra`ov, Ex. 345, Autopsy report (killed by gunshots, including two shots to the neck inflicted from a
relatively close range); Ex. 825, ERN 0469-0704; Ex. 377, p. 11, listing him as a “Croat civilian”; Ex. 323, p. 9; Ex.
302. Regarding Jela Ra`ov, Ex. 368, Autopsy report (killed by two gunshots to the head inflicted at point-blank range);
Ex. 825, ERN 0469-0718; Ex. 377, p. 11, listing her as a “Croat civilian”; Ex. 323, p. 9; Ex. 302. Regarding Branko
Rogi, Ex. 270, F-16. There is no further evidence of this victim. Regarding Nikola Rogi}, Ex. 339, Autopsy report
(killed by several gunshots, including one to the head inflicted at point-blank range); Ex. 825, ERN 0469-0702; Ex.
377, p. 11, listing him as a “Croat civilian”; Ex. 323, p. 9; Ex. 302. Regarding Kljajo Šegari: Ex. 270, F-4 (on which
photograph the victim is wearing civilian clothes); Neven Šegari, 29 Mar 2006, T. 2840, 2843. Regarding Lucka/Luca
Šegari, Ex. 270, F- 14 (on which photograph the victim is wearing civilian clothes). There is no further evidence of
this victim. Regarding Mara @ili}, Ex. 353, Autopsy report (killed by several gunshots inflicted from a distance of more
than one metre); Ex. 825, ERN 0469-0706; Ex. 377, p. 13, listing her as a “Croat civilian”; Ex. 323, p. 9; Ex. 302.
Regarding Pavica @ili}, Ex. 352, Autopsy report (killed by blast wounds); Ex. 825, ERN 0469-0706; Ex. 377, p. 13,
listing her as a “Croat civilian”; Ex. 323, p. 9; Ex. 302. Regarding Roko @ili}, Ex. 342, Autopsy report (killed by
gunshots, including two inflicted to the head at point-blank range); Ex. 825, ERN 0469-0704; Ex. 377, p. 14, listing him
as a “Croat civilian”; Ex. 323, p. 9; Ex. 302. Regarding Tadija @ili}, Ex. 351, Autopsy report (killed by several
gunshots, including to the head inflicted at point-blank range); Ex. 825, ERN 0469-0706; Ex. 377, p. 14, listing him as a
“Croat civilian”; Ex. 323, p. 9; Ex. 302. Regarding Marko @upan, Ex. 366, Autopsy report (killed by two gunshots,
including to the head inflicted at point-blank range); Ex. 825, ERN 0469-0710; Ex. 377, p. 14, listing him as a “Croat
civilian”; Ex. 323, p. 9; Ex. 302. There is also evidence of killings of unidentified victims in Škabrnja and Nadin on 18
and 19 November 1991, Marko Miljani, 29 Mar 2006, T. 2877-2878, 30 Mar 2006, T. 2914, 2920; Bo{ko Brki}, Ex.
275, p. 2; Ex. 109; Ex. 116; Ex. 117; Ex. 614. The Trial Chamber is unable to make any further findings on the basis of
this evidence, in particular whether it concerns any of the proven killings.
Case No. IT-95-11-T 98 12 June 2007
259. Annex I to the Indictment lists the following persons as civilian victims killed in Škabrnja
on 18 November 1991, however the evidence shows that they were “Croat defenders”: Vladimir
Horvat, Nediljko Juri}, Ga{par Perica, Marko Rogi}, Nediljko [kara and Stanko Vickovi}.777
260. Following the attack on Škabrnja, some civilians remained in the village.778 In December
1991, there were JNA soldiers in the village and machine-gun nests in the houses along the
roads.779 The evidence shows that a TO brigade under JNA command was stationed in the
village.780 Bo{ko Brki} returned numerous times in secret to Škabrnja to visit his parents, Mate
Brki} and Josipa Brki}, who had remained in the village.781 Kata Perica, Marija Bilaver, Anica
Pavi~ic and Eva Pavi~i} would come to his parents’ house every evening to sleep.782 At some point
after December 1991, Boško Brki was unable to see his parents due to the situation in the
village.783 His parents told him that every day “Chetniks” would come to them and both threaten
and pretend to protect them.784 The “Chetniks” had long beards and wore uniforms with “Chetnik
insignia”.785 By mid-January 1992, there were only a few JNA soldiers in the village, however
about 50 to 70 soldiers with “SAO Krajina” and White Eagle insignia on their camouflage uniforms
were guarding and patrolling the village.786 On 11 March 1992, Anica Pavi~i and Eva Pavi~i
775 Neither of these persons is listed in Annex I to the Indictment. The Trial Chamber recalls its findings regarding the
interpretation of the Indictment, see supra section I C, and that it will consequently consider these victims for a
conviction. Regarding Petar Rogi, Ex. 825, ERN 0469-0722 (listed as killed); Ex. 377, p. 12 (listed as tortured and
beaten to death on 18 November 1991 in Benkovac). Regarding Miljenko Šegari, Ex. 377, p. 4 (listed as a “Croat
defender” and captured, tortured and beaten to death in Benkovac).
776 Milka Žili is not listed in Annex I to the Indictment. The Trial Chamber recalls its findings regarding the
interpretation of the Indictment, para. 13. Ex. 825, ERN 0469-0722; Ex. 377, p. 13, listing her as “Croat civilian”.
777 Regarding Vladimir Horvat, Ex. 336, Autopsy report (killed by gunshots, including by a shot to the head inflicted at
point-blank range); Ex. 825, ERN 0469-0702; Ex. 377, p. 2, listing him as a “Croat defender”; Ex. 323, p. 9; Ex. 323, p.
9; Ex. 302. Regarding Nediljko Juri}: Ex. 349, Autopsy report (killed by several gunshots from a distance of more than
one metre); Ex. 825, ERN 0469-0704; Ex. 377, pp 2-3, listing him as a “Croat defender”; Ex. 323, p. 9; Ex. 302.
Regarding Ga{par Perica: Ex. 348, Autopsy report (killed by several gunshot wounds, including two shots to the head
inflicted from a close range); Ex. 825, ERN 0469-0704; Ex. 377, p. 3, listing him as a “Croat defender”; Ex. 302.
Regarding Marko Rogi}: Ex. 340, Autopsy report (killed by several gunshots, including one to the head inflicted at
point-blank range); Ex. 825, ERN 0469-0702; Ex. 377, p. 4, listing him as a “Croat defender”; Ex. 323, p. 9; Ex. 302.
Regarding Nediljko [kara: Ex. 341, Autopsy report (killed by several gunshots from a distance of more than one metre
and by blast wounds); Ex. 825, ERN 0469-0704; Ex. 377, p. 5, listing him as a “Croat defender”; Ex. 323, p. 9; Ex. 302.
Regarding Stanko Vickovi}: Ex. 337, Autopsy report (killed by several gunshot wounds from a distance of more than
one metre, including by a shot to the head which was the fatal wound); Ex. 825, ERN 0469-0702; Ex. 377, p. 5, listing
him as a “Croat defender”; Ex. 323, p. 9; Ex. 302.
778 Marko Miljani, 29 Mar 2006, T. 2877; Bo{ko Brki}, Ex. 275, p. 2.
779 Bo{ko Brki}, Ex. 275, p. 3.
780 Zoran Laki, 30 Oct 2006, T. 10289.
781 Mate Brki was confined to a wheelchair as the result of a stroke, Bo{ko Brki}, Ex. 275, pp 2-3.
782 Bo{ko Brki}, Ex. 275, p. 3.
783 Bo{ko Brki}, Ex. 275, p. 3.
784 Bo{ko Brki}, Ex. 275, p. 3, also stating that his parents told him that the JNA soldiers had told them that they should
be careful as “the Chetniks” would kill them.
785 Bo{ko Brki}, Ex. 275, p. 3, also stating that his parents recognised two local Serbs among them.
786 Bo{ko Brki}, Ex. 275, p. 3.
Case No. IT-95-11-T 99 12 June 2007
came to the house and found Marija Bilaver, Mate Brki}, Josipa Brki} and Kata Perica dead on the
floor.787
261. The evidence shows that killings occurred from 18 November 1991 until 11 March 1992.788
In 1996, 26 bodies were exhumed from a mass grave site near the school in Škabrnja.789 In addition
to the four victims just mentioned, the exhumed bodies were identified as: Grgo Bilaver, Peka
Bilaver, Šime Bilaver, Ana Brki, Kata Brki (born 1935), Kata Brki (born 1939), Marija Brki
(born 1906), Mijat Brki, Luka iak, Jure Erli, Dumica Gospi, Ljubomir Ivkovi, Neelko
Ivkovi, Tereza Ivkovi, Jela Juri, Simica Jurjevi, Mirko Kardum, Grgica Ražov, Marko Ražov,
Simo Ražov, Pera Škara, Božo Stura and Draginja Stura.790
787 Bo{ko Brki}, Ex. 275, pp 2-3, also stating that Anica Pavi~i and Eva Pavi~i immediately fled to Prkos where they
told Bo{ko Brki} what had happened. The Trial Chamber notes that the period listed in the Indictment for the killings in
[kabrnja after 18 November 1991 is until and including February 1992, and that these killings took place in March
1992. However, the Trial Chamber finds that the Defence was put on notice through the inclusion of these names in
Annex I to the Indictment and the summary of Boško Brki’s evidence in the Prosecution’s 65 ter submission of 7 May
2004, which specifically describes this incident and connects it with Count 1 (Persecutions), Count 2 (Extermination),
and Counts 3 and 4 (Murder). The Trial Chamber notes that Mate Brki is listed as Mato Brki in Annex I to the
Indictment. The autopsy report of the victims provide that they wore civilian clothes at the time of their death (Mate
Brki}, Ex. 373, body no. 6; Josipa Brki}, Ex. 374, body no. 7; Kata Perica, Ex. 374, body no. 9; Marija Bilaver, Ex.
373, body no. 8). Moreover, Ex. 377 also lists all four victims as civilians. See also Ex. 302; Ex. 323.
788 Ex. 305; Ex. 377. The Trial Chamber also notes that Ex. 107, p. 7, 16 provides for 10 December 1991 “in [kabrnja
TO members kill one elderly person each day” and for 15 February 1992 “another dead body in the village of
[kabrnja”.
789 Ivan Gruji}, 10 Apr 2006, T. 3477-3479; Davor Strinovi, 12 Apr 2006, T. 3670-3671; Ex. 305; Ex. 373; Ex. 374;
Ex. 1042, Tab 2; Ex. 1043, Tab 2, DVD 5, p. 1.
790 Grgo Bilaver, Ex. 305, pp 15-16, killed by a gunshot to the chest. See also Ex. 302; Ex. 323, p.10; Ex. 377, p. 5.
Peka Bilaver, Ex. 305, pp 19-20, killed by gunshot. See also Ex. 302; Ex. 323, p. 10; Ex. 377, p. 6. Ana Brki, Ex. 305,
pp 21-22, killed by an explosion. See also Ex. 302; Ex. 323, p. 10; Ex. 377, p. 6. Kata Brki (born 1935), Ex. 374, pp 3-
4, killed by gunshot. See also Ex. 302; Ex. 323, p. 10. Kata Brki (born 1939), Ex. 374, p. 6, killed by gunshot to the
head. See also Ex. 302; Ex. 323, p. 10, Ex. 377, p. 6. Marija Brki, Ex. 373, p. 2, killed by gunshot to the thorax and
blunt trauma to the head. See also Ex. 302; Ex. 323, p. 10. Mijat Brki, Ex. 305, pp 6-7, killed by gunshot. See also Ex.
302; Ex. 323, p. 10; Ex. 377, p. 7. Jure Erli, Ex. 305, pp 8-9, killed by shrapnel but Ex. 377, p. 7, provides that he was
shot. See also Ex. 302; Ex. 323, p.10. Dumica Gospi, Ex. 305, pp 18-19, killed by explosion but Ex. 377, p. 7, provides
that she was shot. See also Ex. 302; Ex. 323, p. 10. Ljubomir Ivkovi, Ex. 374, pp 12-13, killed by shrapnel. See also
Ex. 302; Ex. 323, p. 10; Ex. 377, p. 8. Neelko Ivkovi, Ex. 305, pp 11-12, killed by gunshot wounds to the chest. The
Trial Chamber notes that this victim is listed as a “Croat defender” in Ex. 377, p. 2, however his body when exhumed
was dressed in civilian clothing. See also Ex. 302; Ex. 323, p. 10. Tereza Ivkovi, Ex. 373, pp 5-6, killed by a blow to
the head with a sharp instrument. See also Ex. 302; Ex. 323, p. 10; Ex. 377, p. 8. Simica Jurjevi, Ex. 305, p. 9,
compression of the head and thorax. The Trial Chamber notes that Ex. 377, p. 9, provides that this victim was run over
by a heavy vehicle. See also Ex. 302; Ex. 323, p. 10. Mirko Kardum, Ex. 305, pp 2-3, killed by shrapnel. See also Ex.
302; Ex. 323, p. 10, Ex. 377, p. 9. Simo Ražov, Ex. 305, pp 17-18, killed by gunshot to the head. The Trial Chamber
notes that Ex. 377, p. 11, lists a victim called Šime Ražov born 1938, which is the same birth year as listed in Ex. 305
for Simo Ražov. The Trial Chamber notes that Annex I to the Indictment lists a Šime Ražov, born 1938, and concludes
that this is the same person as listed in Ex. 305 and Ex. 377. See also Ex. 302; Ex 323, p. 10. Grgica Ražov, Ex. 305, pp
12-14, killed by gunshot to the head. See also Ex. 302; Ex. 323, p. 10; Ex. 377, p. 10. Marko Ražov, Ex. 305, pp 14-15,
killed by gunshot to the head. See also Ex. 302; Ex. 323, pp 10; Ex. 377, p. 11. Pera Škara, Ex. 374, pp 10-11, killed by
shrapnel. See also Ex. 302; Ex. 323, p. 10; Ex. 377, p. 13. Božo Stura, Ex. 374, pp 6-7, killed by blows to the head with
a sharp instrument. See also Ex. 302; Ex. 323, p. 10. Draginja Stura, Ex. 373, p. 3, killed by multiple gunshot wounds.
See also Ex. 302; Ex. 323, p. 10. Regarding Šime Bilaver, Luka iak, and Jela Juri: The Trial Chamber notes that
Šime Bilaver and Luka iak are recorded as having died of natural causes (Ex. 373, p. 5 and Ex. 305, pp 5-6
respectively). This evidence is therefore not relevant and will not be considered for a conviction. Jela Juri is recorded
as having been killed by shrapnel (Ex. 305, pp 4-5; Ex. 825, ERN 0469-0702). The Trial Chamber notes that this victim
is not listed in Annex I to the Indictment, and recalls its findings regarding the interpretation of the Indictment, see
supra section I C. The Trial Chamber concludes that the Defence has not been on sufficient notice regarding this victim.
Case No. IT-95-11-T 100 12 June 2007
(f) Investigations into the events in Škabrnja and Nadin on 18 and 19 November 1991
262. On 20 November 1991, the JNA Naval Military District in Split, on the request of the
European Community Monitoring Mission, asked the JNA 9th Corps command to provide a report
by the following day on the killings in Škabrnja and Nadin on 18 and 19 November 1991.791 There
is evidence that an on-site investigation was carried out in cooperation with the Benkovac SJB.792
The 180th Motorised Brigade conducted interviews, although not pursuant to superior orders.793
Following the interviews, reports were sent to the JNA 9th Corps command.794
(g) Destruction in [kabrnja and Nadin
263. As noted above, during the attack on 18 and 19 November 1991 cluster bombs were
dropped on Škabrnja with resulting damage to buildings. Moreover, private houses and the school
were shot at by tanks and with hand-held rockets, and the church of the Assumption of the Virgin
was also shot at by a tank.795 Marko Miljani testified that by 19 November 1991, 30 to 40% of the
houses in Škabrnja had been “destroyed” and that also the church of the Assumption of the Virgin
and the school had been “destroyed”.796 The Trial Chamber notes that the only evidence of
destruction of this church on 18 or 19 November 1991 is that a tank fired at the bell tower.797 As
noted above, “soldiers” entered this church and fired their weapons.798 Furthermore, looting was
committed by local Serbs and Serb paramilitaries.799 There is also evidence that volunteers from
Serbia and BiH, who were joined to the Benkovac TO, participated during the attack on Škabrnja
and that they looted and robbed.800
264. After the attack on Škabrnja and until February 1992, Serb paramilitary forces and local
Serbs looted and burnt houses in Škabrnja.801 The evidence is inconclusive as to when Škabrnja was
destroyed.802 However, by 1994 about 90 to 95% of Škabrnja was destroyed and the church of St.
791 Ex. 60. On 23 November 1991, the JNA handed over 35 bodies from [kabrnja to the Civilian Protection of the
Zadar, Biograd, Benkovac and Obrovac municipalities. By 5 December 1991, a further 13 bodies from Škabrnja and
Nadin had been received from the JNA, Ivan Jeli}, Ex. 825, pp 2-3 and attached documents.
792 Zoran Laki, 27 Oct 2006, T. 10254; Marko Miljani, 29 Mar 2006, T. 2881, 30 Mar 2006, T. 2914, 2927; Ex. 270.
793 Ex. 109; Ex. 116; Ex. 117; Ex. 118; Ex. 411; Ex. 615. The Trial Chamber notes that Ex. 116, Ex. 117, Ex. 118, Ex.
411, Ex. 614, and Ex. 615 contain the names of alleged perpetrators of killings. However, the Trial Chamber finds that
the evidence is insufficient to link any of the named persons to the above-mentioned killings in Škabrnja and Nadin on
18 and 19 November 1991.
794 Witness MM-080, 8 Jun 2006, T. 5270-5271, 5279-5280.
795 See supra paras 236, 241.
796 Marko Miljani, 30 Mar 2006, T. 2925; Neven Šegari, 29 Mar 2006, T. 2848 (describing the school as ”blown up”
and ”torched”). The Trial Chamber recalls that a JNA tank fired in the direction of the school, see supra para. 241.
797 See infra para. 395.
798 See supra para. 241.
799 Ex. 107, p. 3; Ex. 922, p. 7; Bo{ko Brki}, Ex. 275, p. 3.
800 Ex. 616, pp 2, 13-14. It is also alleged that these persons committed killings of unidentified individuals, id at p. 2.
801 Bo{ko Brki}, Ex. 275, p. 3; Ex. 107, p. 3; Ex. 984, Annex 9.
802 Zoran Laki}, 30 Oct 2006, T. 10294-10295, 10303, testifying that in November 1992 Škabrnja was no more
damaged than it had been one year earlier and that the damage was not as shown in Ex. 271 and Ex. 272 but that there
Case No. IT-95-11-T 101 12 June 2007
Mary in Ambar and the church of St. Luke near the centre of Škabrnja were badly damaged.803 By
October or November 1995, all the houses in Škabrnja and the church of the Assumption of the
Virgin had been destroyed.804 By 1996, the church as well as the houses in Nadin had been looted,
destroyed and burnt down.805
5. Bru{ka
265. Bru{ka is located about 15 kilometres east of Benkovac.806 In 1991, about 400 people lived
there, and the village was predominantly Croat.807 Marinovi}i is a hamlet in Bru{ka comprising of
eight houses, which in 1991 was inhabited by Croats.808
266. From the spring of 1991, there was a Croatian reserve police force in Bru{ka, however, they
did not have regular shifts, uniforms or weapons.809 The “Militia Krajina, Martic’s police” set up
barricades which cut off the bus line between Zadar and Benkovac.810 Armed men identifying
themselves as “Martic’s men” or “Martic’s Militia” came to Bru{ka almost every day to scare the
inhabitants.811 The armed men called the villagers Ustašas and said that Bru{ka would be a part of a
Greater Serbia and that the people of Bru{ka should leave.812 However, as of December 1991
almost all of the inhabitants of Bru{ka were still living there.813
267. On the evening of 21 December 1991, Ante Marinovi} was at home playing cards with his
brother Du{an Marinovi}, his father Roko Marinovi}, his uncle Petar Marinovi} and Sveto
Draa.814 Ante Marinovi}’s grandfather and Ljilja Marinovi}, the wife of Du{an Marinovi}, were
upstairs with two children of theirs, Jure and Donja, and with the children of Sveto Draa and Soka
was damage to roofs of houses from mortar shells and holes in the walls of buildings made by artillery and tank fire,
ibid. Zoran Laki} testified that the kind of extensive damage to buildings in Škabrnja shown in the photographs may
have occurred in 1993 or 1994 following Croatian attacks on the municipalities of Benkovac, Obrovac, Gracac and
(partly) Knin, ibid. Boško Brki stated that by December 1992 Škabrnja had been completely destroyed, Boško Brki,
Ex. 275, p. 4.
803 Marko Miljani} 30 Mar 2006, T. 2925 (testifying that houses had been blown up with explosives and razed to the
ground, rather than having been hit by shells), 2926.
804 Neven Šegari 29 Mar 2006, T. 2848, 2851; Luka Brki}, 5 Apr 2006, T. 3290.
805 Witness MM-083, 16 Jun 2006, T. 5747 (testifying to the taking of a tractor, and furniture and appliances).
806 Jasna Denona, 9 Feb 2006, T. 1293; Ex. 23, p. 25. See also Ex. 1042, Tab 2; Ex. 1043, Tab 2, DVD 5, pp 22-41; Ex.
1044.
807 Ex. 301, p. 6, states that there were 474 inhabitants in Bru{ka and that 89.54% were Croats, and 10.46% were Serbs;
Jasna Denona, 9 Feb 2006, T. 1269; Ante Marinovi, 23 Mar 2006. T. 2472.
808 Jasna Denona, 9 Feb 2006, T. 1269. The villages surrounding Bru{ka are Medvia, Zelengrad, Karin, Brgud,
Bjeline, and Kalanja Draga. Zelengrad, Karin, Brgud, and Kalanja Draga were Serb; Medvia was half-Serb and half-
Croat; and Bjeline was 20% Croat and 80% Serb, Ante Marinovi, 23 Mar 2006. T. 2472-2473.
809 Ante Marinovi, 23 Mar 2006. T. 2471, 2492.
810 Jasna Denona, 9 Feb 2006, T. 1270, 1305.
811 Ante Marinovi, 23 Mar 2006. T. 2493, T. 2479-2480, 2498, also testifying that these men mostly came from
Medvia. Ante Marinovi further testified that they would say “You have no business here. This is Serb. You can go
away,” and would call the people Ustašas, telling them that Bru{ka would be a part of a Greater Serbia, ibid.
812 Ante Marinovi, 23 Mar 2006. T. 2480, testifying that the villagers of Bru{ka were not armed and thus could not
protect themselves.
813 Ante Marinovi, 23 Mar 2006. T. 2480.
Case No. IT-95-11-T 102 12 June 2007
Draa.815 The men were not armed and were dressed in civilian clothes, except Sveto Draa who
was a Serb member of the JNA, and who was wearing an olive-drab uniform.816 Although Ante
Marinovi} was a reserve police officer at the time, he was not on active duty that night.817
268. At around 2000 or 2030 hours, three members of the Milicija Krajine barged into the house,
took the men outside, lined them up against a wall and started shooting.818 Du{an Marinovi} and
Roko Marinovi} were killed and Ante Marinovi} was wounded.819 Sveto Draa and Petar
Marinovi} ran away but were chased and killed near the gate.820
269. The same evening Jasna Denona was in her family home, which was close to Roko
Marinovi’s house, with her mother and her neighbours, Soka and Dragan Marinovi}.821 Jasna
Denona, her mother and Dragan Marinovi} were Croats, and Soka was a Serb.822 At about the same
time as the Milicija Krajine came to Roko Marinovi’s house, men identifying themselves as the
Milicija Krajine and as “Marti}’s men” came to the door.823 Dragan Marinovi} went to answer the
door.824 The women fled out into the garden and across a wall.825 As they were running Jasna
Denona heard one of the men shout “they got away”, after which the men started shooting at them
and Jasna Denona was hit.826 Her mother came back and helped her move behind a wall in the
vineyard, where they hid together with Jeka and Soka for about two hours.827 Jeka then went to
check what was happening in the house closest to them, which was the house of Roko Marinovi}.828
They followed her and saw that at the gate of the yard she had found the dead body of her husband,
814 Ante Marinovi, 23 Mar 2006. T. 2481-2483, 2498; Ex. 1042, Tab 2; Ex. 1043, Tab 2, DVD 5, pp 32-41.
815 Ante Marinovi, 23 Mar 2006. T. 2481; Jasna Denona, 9 Feb 2006, T. 1291.
816 Ante Marinovi, 23 Mar 2006. T. 2481-2482; Jasna Denona, 9 Feb 2006, T. 1290.
817 Ante Marinovi, 23 Mar 2006. T. 2481-2482.
818 Ante Marinovi, 23 Mar 2006. T. 2482-2484, (at T. 2483 testifying that they had “Milicija Krajine” on the sleeves of
their uniforms).
819 Ante Marinovi, 23 Mar 2006. T. 2484. Ante Marinovi} was shot seven times: twice in the left thigh, or above the
left thigh, twice in the arm, twice above the right hip, and once in the hand, Ante Marinovi, 23 Mar 2006. T. 2484. See
also Ex. 370, p. 2; Jasna Denona, 9 Feb 2006, T. 1274-1275. With respect to Du{an Marinovi} and Roko Marinovi},
see, Ex. 370, also indicating that they wore civilian clothes; Ex. 323, p. 8, indicating that they were killed by gunshot.
See also Ex. 302; Ex. 378.
820 Ante Marinovi, 23 Mar 2006. T. 2484.
821 Jasna Denona, 9 Feb 2006, T. 1270-1271; Ex. 1042, Tab 2; Ex. 1043, Tab 2, DVD 5, pp 22-31.
822 Jasna Denona, 9 Feb 2006, T. 1271.
823 Jasna Denona, 9 Feb 2006, T. 1271-1272, 1281.
824 Jasna Denona, 9 Feb 2006, T. 1272, 1286, testifying that he was 23 years old.
825 Jasna Denona, 9 Feb 2006, T. 1272.
826 Jasna Denona, 9 Feb 2006, T. 1272-1273, 1276-1277. Today she has 50% disability, with her right arm being much
weaker than her left arm as well as being disfigured, id. at T. 1279.
827 Jasna Denona, 9 Feb 2006, T. 1273.
828 Jasna Denona, 9 Feb 2006, T. 1273-1274.
Case No. IT-95-11-T 103 12 June 2007
Petar Marinovi}, and of her neighbour, Sveto Draa.829 In the front yard she had found the dead
bodies of Roko Marinovi} and his son, Du{an Marinovi}.830
270. Joso Marinovi} came to the house and told them that both his son, Dragan Marinovi}, and
his wife, Ika Marinovi}, had been killed.831 Later that night Dusan Draa, the father of Sveto Draa,
came and told them that there were four more dead bodies in Marinovii.832 The following morning
they discovered that the dead bodies belonged to Krsto Marinovi}, Draginja Marinovi}, his wife
Stana Marinovi}, and her mother-in-law, Manda Marinovi}.833 Jasna Denona’s mother and
neighbour Kata saw their bodies and told her that they had been shot and that their bodies were
“bullet riddled”.834
271. The next day at 1800 hours an ambulance arrived with a policewoman from Benkovac who
interviewed Jasna Denona about what had happened.835
272. There were investigations into the killings in Bru{ka. A JNA report from 11 March 1992
and one on 4 April 1992, confirmed that there were killings in Bru{ka on 21 December 1991 and
indicate that the killings may have been motivated by revenge by a named individual.836 There was
also an on-site investigation team from Benkovac, an investigative judge and people from the SJB
involved in the investigation at Bru{ka.837
273. By 1995, most of Bruška had been destroyed.838
829 Jasna Denona, 9 Feb 2006, T. 1274. With respect to Petar Marinovi}, Ex. 369, which also provides that he wore
civilian clothes; Ex. 323, p. 8, providing that he was killed by gunshots. See also Ex. 302; Ex. 378. As regards Sveto
Draa, Ex. 302. The Trial Chamber notes that no autopsy report has been provided concerning Sveto Draa.
830 Jasna Denona, 9 Feb 2006, T. 1274.
831 Jasna Denona, 9 Feb 2006, T. 1275; Ex. 372, also stating that they wore civilian clothes; Ex. 323, p. 8, stating that
they were killed by gunshot. See also Ex. 302; Ex. 378.
832 Jasna Denona, 9 Feb 2006, T. 1275.
833 Jasna Denona, 9 Feb 2006, T. 1275.
834 Jasna Denona, 9 Feb 2006, T. 1275; Ex. 369 (regarding Krsto Marinovi}, Draginja Marinovi}); Ex. 371 (regarding
Stana Marinovi} and Manda Marinovi}); Ex. 323, p. 8, providing that they were killed by gunshot. Ex. 369 and Ex. 371
also indicate that all the four victims wore civilian clothes. See also Ex. 302; Ex. 378.
835 Jasna Denona, 9 Feb 2006, T. 1277-1278.
836 Ex. 403, dated 11 March 1992, pp 2-3, see also Imra Agoti}, Ex. 398, T. 23277-23278; MM-096, 22 Aug 2006, T.
6901; Ex. 404, p. 2 (in the report, the author states that he believed this information to be true and that it was from a
reliable source, ibid).
837 MM-080, 8 Jun 2006, T. 5281-5282, 5318. See also Ex. 617; Ex. 618. Jasna Denona was interviewed by Benkovac
police, Ex. 134; Jasna Denona, 9 Feb 2006, T. 1281-1284. Witness MM-096 testified that there was information that the
perpetrators were Serbs, but “Nobody said specifically the SAO Krajina Police.”, Witness MM-096, 24 Aug 2006, T.
7092, 7095-7096. See also MM-080, 8 Jun 2006, T. 5318. Neither MM-080 nor Jasna Denona ever heard of anyone
having been punished for the killings in Bru{ka on 21 December 1991, Jasna Denona, 9 Feb 2006, T. 1281; MM-080, 8
Jun 2006, T. 5318.
838 Ante Marinovi, 23 Mar 2006, T. 2509; Jasna Denona, 9 Feb 2006, T. 1279-1280, 1307.
Case No. IT-95-11-T 104 12 June 2007
E. Detention-related crimes
1. SJB in Titova Korenica
274. The SJB in Titova Korenica, which was subordinated to the SUP in Knin, was used as a
detention facility.839 The facility consisted of three cells.840 At the facility, there were Milicija
Krajine as well as persons in camouflage uniforms and JNA uniforms.841
275. Vlado Vukovi}, a Croatian policeman, was detained at the SJB for approximately ten days
together with Ignjac Ivanus, an SJB commander from Zagorje, and Nikola Pemper.842 He was never
informed why he was arrested and detained, rather his captors “would just say vulgar words and
that the Republic of Croatia would cost us dearly”.843 On several occasions while detained at the
SJB, Vlado Vukovi} was beaten by people who referred to themselves as “Marti}’s men” and by
people wearing camouflage uniforms and by “the JNA in olive-drab uniforms”.844 During the
beatings, members of the Milicija Krajine were present but did nothing to stop the beatings.845 On
one occasion, Vlado Vukovi} was cut on the face.846
276. The Trial Chamber has also received evidence of the detention of a Croat civilian named
Milan Pavli} for about 15 days, and of Perica Biani} and Ivica Biani}, both members of the
Poljanak civilian protection force, for nine months and one month, respectively. All three were
severely mistreated at the SJB.847
839 Vlado Vukovi}, 27 Mar 2006, T. 2669; MM-096, 21 Aug 2006, T. 6829, 6831-6832. The Trial Chamber notes that
prior to his detention in Titova Korenica, Vlado Vukovi had been detained in the Pla{ki SJB, where he was mistreated
and beaten by men who referred to themselves as “Marti}’s men”(see Vlado Vukovi, 27 Mar 2006, T. 2665-2667).
However, the Trial Chamber notes that as the detention facility in Pla{ki SJB is not listed in paragraph 39 of the
Indictment, it considers that the Defence was not put on notice of this detention. In this regard, the Trial Chamber
recalls its finding regarding the interpretation of the Indictment. See supra section I C. See also Ex. 1042, Tab 2; Ex.
1043, Tab 2, DVD 2, pp 15-16; Ex. 1044, Map of Titova Korenica area.
840 Vlado Vukovi}, 27 Mar 2006, T. 2669-2670. Vlado Vukovi} was however not able to see whether there were other
people detained in the other cells of the SJB, ibid.
841 Vlado Vukovi}, 27 Mar 2006, T. 2669, 2712.
842 Vlado Vukovi}, 27 Mar 2006, T. 2679, 2674. The Trial Chamber notes that there is no evidence that Nikola Pemper
was mistreated at the Titova Korenica SJB.
843 Vlado Vukovi}, 27 Mar 2006, T. 2669, T. 2672, 2674.
844 Vlado Vukovi}, 27 Mar 2006, T. 2712-2713.
845 Vlado Vukovi}, 27 Mar 2006, T. 2671-2672.
846 Vlado Vukovi}, 27 Mar 2006, T. 2671-2672. Vlado Vukovi} was subsequently transferred to the Željeva military
airport in Biha} where he was beaten by people wearing the uniforms of the Military Police. On 28 October 1991,
Vlado Vukovi} was transferred to a hangar at the military training ground in Manja~a, BiH. On 9 November 1991, he
was exchanged in Slavonski and Bosanski Samac, Vlado Vukovi}, 27 Mar 2006, T. 2672-2674.
847 Marica Vukovi}, 22 Mar 2006, T. 2418-2419, 2422-2423, also testifying that Milan Pavli sustained a broken nose
and “a broken head”, and that Perica Biani lost approximately half his body weight and was very traumatised. The
Trial Chamber notes the evidence of Ivan Gruji that between 1991 and 1995 there were 22 prisoners detained in
“Plaški-Korenica” and 5 persons detained at “Korenica”, Ex. 300, p. 10. The Trial Chamber is unable to draw any
conclusions based on Ivan Gruji’s evidence in this respect.
Case No. IT-95-11-T 105 12 June 2007
2. Detention facilities in Benkovac848
277. On 14 October 1991, Ivan Atelj and [ime ^a~i} were arrested in Zagrad by a member of the
“Marti}’s police” and taken to the SJB in Benkovac.849 While being questioned they were
threatened and beaten. After 19 days of detention, Ivan Atelj and [ime ^a~i} were moved to the old
hospital in Knin, in the latter’s case on the order of Milan Marti.850
278. Following the attack on Škabrnja on 18 November 1991, around 40 inhabitants, including
the village guard Luka Brki, the three children Tomislav [egari}, Tomislav Gurlica and Marin
Juri}, were taken to a kindergarten in Benkovac across the street from the JNA barracks.851 During
the night, more people were brought there.852 They were interrogated by JNA soldiers.853 The next
morning, Tomislav [egari}, Tomislav Gurlica and Marin Juri} were taken to the “communal store”
in Biljani, northwest of Benkovac, where they were subjected to insults and threats all day by
“Chetniks”.854 Toward the evening, they were driven back to the kindergarten; at that time the other
detainees were gone.855 On 20 November 1991, they were released a short distance from the Croat
village of Pristeg.856
3. Detention facilities in Knin
279. There were two detention facilities in Knin, one at the barracks of the JNA 9th Corps and
one at the old hospital.857 The evidence shows that between 1991 and 1995, between 650 and 700
were detained in Knin.858
848 The Indictment does not refer to detention facilities in Benkovac specifically. However, the Trial Chamber notes that
the Prosecution Pre-Trial Brief (para. 50) contains a reference to detention of the non-Serb male population in
Benkovac and Knin. Moreover, the Trial Chamber notes that the 65 ter summaries of Neven Šegari, Tomislav Šegari
and Luka Brki refer to detention in Benkovac. Lastly, the Trial Chamber notes that the Defence called Witness MM-
096 who testified, inter alia, about detention in the Benkovac SJB.
849 Ex. 959, pp 1-4. Witness MM-090 testified that Šime ai was “taken prisoner as a prisoner of war”, Witness MM-
090, 4 Sep 2006, T. 7667. Immediately after their arrest, Ivan Atelj and [ime ^a~i} were beaten and a third person was
shot in the leg. At the Benkovac SJB, [ime ^a~i} and Ivan Atelj were tied to a bench. They were questioned by Bo{ko
Dra`i}, the Chief of the Benkovac SJB, about Croatian army positions in Nadin and other places near Zadar, as well as
weapons used by the Croatian army. Ivan Atelj was beaten after every question and he was also threatened with a knife
to his throat. The detainees were beaten and kicked with boots, fists and wooden sticks in the face and other parts of the
body. They were not allowed to wash despite their being covered in blood. Ivan Atelj named several persons as being
involved in the beatings and interrogations, including Bo{ko Dra`i}.
850 Ex. 959, p. 4; Ex. 529.
851 Luka Brki}, 5 Apr 2006, T. 3225-3226, 3252, 7 Apr 2006, T. 3390; Tomislav [egari}, Ex. 826, p. 4. The Trial
Chamber notes that it heard hearsay evidence that a man named Davor Luki} was detained at the barracks in Benkovac
or at the Benkovac SJB, Witness MM-096, 25 Aug 2006, T. 7179-7180.
852 Tomislav [egari}, Ex. 826, p. 4.
853 Tomislav [egari}, Ex. 826, p. 4. Apart from the JNA soldiers, there were Serbs paramilitaries wearing different
kinds of uniforms, including some with an insignia with four Cyrillic “S”. Tomislav [egari} believes that most of them
were local Serbs, Tomislav [egari}, Ex. 826, pp 4-6.
854 One person held a knife to Tomislav [egari}’s neck, Tomislav [egari}, Ex. 826, pp 4-5.
855 Tomislav [egari}, Ex. 826, p. 5.
856 Tomislav [egari}, Ex. 826, p. 5.
857 Milan Babi}, 20 Feb 2006, T. 1616; Ex. 8, p. 3; Mladen Lon~ar, 12 Jun 2006, T. 5435.
Case No. IT-95-11-T 106 12 June 2007
(a) Detention at the JNA 9th Corps barracks
280. The barracks of the JNA 9th Corps is a large complex, which includes several buildings, a
heliport and some warehouses.859
281. On 19 November 1991, Luka Brki}, Ante “Neno” Gurlica and Marin Gurlica were brought
by truck to the JNA barracks in Knin by men wearing JNA uniforms.860 While they were taken to
the barracks, they were beaten and verbally abused.861
282. Luka Brki} was detained at various locations at the JNA barracks with between 8 and 17
people, ranging from 30 to 80 years old.862 The detainees were severely beaten for at least twenty
days.863 The detainees did not receive medical treatment,864 there was insufficient food and
water,865 and there were no sanitary facilities.866
283. Luka Brki} was also detained at the sports hall of the barracks with between 75 and 200
people, mostly Croats.867 The detainees were occasionally severely beaten.868 There were limited
sanitary facilities and a 200-litre barrel next to the door that was used to urinate in.869 Ratko Mladi,
the then-Commander of the 9th Corps, twice visited the detainees at the sports hall.870 Ratko Mladi
taunted them, saying “if you don't do what you are told … your fate will be the same as the fate of
the inhabitants from Škabrnja.”871 The detainees were “displayed as Ustashas” and made to “take an
oath for the King and the fatherland, the Serbian fatherland”.872
858 Ex. 300, p. 10; Ex. 008, p. 3. See also Mladen Lon~ar, 12 Jun 2006, T. 5435, Ex. 841, pp 92-93; Ex. 922, p. 15.
859 Luka Brki}, 5 Apr 2006, T. 3266-3267. See also Ex. 1042, Tab 2; Ex. 1043, Tab 2, DVD 4, pp 3-17.
860 Luka Brki}, 5 Apr 2006, T. 3264-3266.
861 Luka Brki}, 5 Apr 2006, T. 3264.
862 Luka Brki}, 5 Apr 2006, T. 3251, 3264, 3268-3269, 3289, 7 Apr 2006, T. 3407; Ex. 286; Ex. 287. The Trial
Chamber notes among others Ante “Neno” Gurlica, Marin Gurlica, a civilian named Petar Gurlica, and a man named
Jero/Jere Miskovi}, who was born 1912.
863 Luka Brki}, 5 Apr 2006, T. 3271-3272: “In those rooms they beat us severely. I couldn't stand up. So somebody
could help me stand up. If I was lying down, I couldn't stand up. If I was sitting, I couldn't get up from the chair. There
was a vet who was there for 15 days. He couldn’t sleep, so he helped me. For 20 days I slept standing up. If I lied down,
I couldn't stand up. Everything was wet on the ground. It would freeze. So it was very difficult”. Then they were taken
to another location on the premises of the barracks, where they were beaten, Luka Brki}, 5 Apr 2006, T. 3267.
864 Luka Brki}, 5 Apr 2006, T. 3269, 3272, testifying also that Jere Miskovi had a bad leg: “His leg was falling apart.
He had thrombosis.”
865 Luka Brki}, 5 Apr 2006, T. 3270-3271, testifying that during the first three days, they did not receive any water, that
the amount of drinking water they later received was limited, and that they did not have any water to wash themselves.
866 Luka Brki}, 5 Apr 2006, T. 3270, testifying that they tore up a coat that belonged to Petar Gurlica and used it as
toilet paper, that the detainees used a 30-litre bucket instead of a bathroom, and that some persons who were in a state
of delirium defecated next to the door and other detainees had to clean up after them. The detained were provided with
one blanket each and had to sleep on the concrete floor, ibid.
867 Luka Brki}, 5 Apr 2006, T. 3272, 3274, 7 Apr 2006, T. 3430-3431.
868 Luka Brki}, 5 Apr 2006, T. 3272, 3274-3275.
869 Luka Brki}, 5 Apr 2006, T. 3274-3275.
870 Luka Brki}, 5 Apr 2006, T. 3274-3275.
871 Luka Brki}, 5 Apr 2006, T. 3275.
872 Luka Brki}, 5 Apr 2006, T. 3264, 3267-3268.
Case No. IT-95-11-T 107 12 June 2007
284. While being detained in the JNA barracks, in addition to JNA soldiers, Luka Brki saw
soldiers wearing SAO Krajina insignia and the White Eagles (“Beli Orlovi”) insignia.873
(b) Detention facility at the old hospital in Knin
285. In early 1991, a detention facility was established on the premises of the old hospital in the
centre of Knin.874 This facility was sometimes referred to as “Marti}’s prison” and the “District
Prison”.875 A section of the hospital was used as a dormitory by “Captain Dragan’s men and
members of the JNA reserve force”.876 From the summer of 1991, the Ministry of Justice of the
SAO Krajina took over control of the old hospital from the TO and hired professional guards.877 On
28 September 1992, the Assembly of the RSK formally established the District Prison in Knin.878
286. On 2 October 1991, Stanko Ersti} was arrested in Medvia near Bruška by the Milicija
Krajine and brought to the old hospital in Knin.879 He was detained with another 120 prisoners, all
non-Serbs from Croat or mixed villages in the Krajina region.880 Except for 20 members of the
ZNG who had been captured during the fighting in Kijevo, all detainees were Croat civilians.881 He
was detained in a room with approximately 12 people.882 In his view, “all the guards were
paramilitary and part of ‘Marti}’s militia’”.883 He testified to haing seen Ratko Mladi} at the old
hospital.884 On 2 November, Stanko Ersti and approximately 100 non-Serb prisoners were
exchanged for approximately 60 Serb prisoners.885 Twenty Croats from Lika remained in the
prison.886 Members of “Special Military Police Unit”, dressed in JNA uniforms, took them to the
873 Luka Brki}, 5 Apr 2006, T. 3243-3244, 3273, 7 Apr 2006, T. 3407. Later on, Luka Brki heard that “there were all
sorts of people there; Marti's men and others”, id. at T. 3407.
874 Witness MM-090, 29 Aug 2006, T. 7382-7383, 30 Aug 2006, T. 7428-7429; Luka Brki}, 5 Apr 2006, T. 3277, 3283.
The establishment took several months, Witness MM-090, 29 Aug 2006, T. 7381. See also Ex. 1042, Tab 2; Ex. 1043,
Tab 2, DVD 3, pp 20-67 and DVD 4, pp 1-3.
875 Luka Brki}, 5 Apr 2006, T. 3276-3277, 7 Apr 2006, T. 3408; Witness MM-90, 30 Aug 2006, T. 7428; Stevo Plejo,
20 Sep 2006, T. 8724.
876 Stanko Ersti}, Ex. 392, T. 24972; Stevo Plejo, 22 Sep 2006, T. 8900.
877 Stevo Plejo, 20 Sep 2006, T. 8725; Witness MM-090, 4 Sep 2006, T. 7658-7659; Milan Babi}, 20 Feb 2006, T.
1612-1613. See also Ex. 906. As of 17 August 1991, a total of 15 people were employed at the old hospital, Ex. 906, pp
10-19. By October 1992, approximately 30 people were listed as employees of the prison, Ex. 903. The 15 people who
started work on 17 August 1991 were all still employed at that time, Ex. 923, pp 1-2, 7.
878 Ex. 906, pp 10-19; Ex. 923, pp 1-2.
879 Stanko Ersti}, 26 Apr 2006, T. 3873, 3875-3877; Ex. 396, p. 3.
880 Stanko Ersti}, 26 Apr 2006, T. 3874; Stanko Ersti}, Ex. 396, p. 4; Stanko Ersti}, Ex. 392, T. 24996-24997.
881 Stanko Ersti}, Ex. 396, p. 4; Stanko Ersti}, Ex. 392, T. 24996. After the establishment of the Prisoner Exchange
Commission, the JNA would bring prisoners of war to be temporarily held at the old hospital until the time of their
exchange, Witness MM-090, 4 Sep 2006, T. 7674-7675. Ivan Atelj shared his cell with Denis Dr~a, a Serb who was
beaten and accused of being a “Serbian traitor”, Ex. 959, p. 5.
882 Stanko Ersti}, Ex. 392, T. 24980.
883 Stanko Ersti}, Ex. 396, p. 3.
884 Stanko Ersti}, Ex. 396, p. 3; Stanko Ersti}, Ex. 392, T. 24972.
885 Stanko Ersti}, 26 Apr 2006, T. 3874-3875, Ex. 392, T. 24973; Ex. 959, pp 4-5. The Trial Chamber notes that Stevo
Plejo has disputed the veracity of this document, Stevo Plejo, 22 Sep 2006, T. 8884. The Trial Chamber notes that this
document contains an Official Note which was written on 3 May 1992 and that much of the information therein is
corroborated by other evidence.
886 Stanko Ersti}, Ex. 392, T. 24982.
Case No. IT-95-11-T 108 12 June 2007
JNA barracks in Knin, where they were loaded onto buses. Afterwards they were driven to Pakovo
Selo where buses from the Croatian side picked them up.887
287. Luka Brki} was brought to the old hospital from the JNA barracks in Knin.888 In his
opinion, “it was the police or the army who operated there.”889 He also saw another 30 prisoners
brought to the old hospital the day he arrived.890 Luka Brki was detained in a small room together
with nine people.891 After approximately 12 days, he was transferred to the ground floor of another
wing of the old hospital, which was under the control of the JNA. There, he joined the people who
had initially been detained with him at the JNA 9th Corps barracks.892
288. The detainees were threatened and beaten every day for long periods, often by several
guards at a time using rifle butts, truncheons, and wooden staves.893 The detainees were
interrogated and also beaten by shift commanders.894 The detainees also had cocked revolvers
pressed against their temples, were beaten on their kidneys until they were swollen, and were
denied the use of toilet facilities.895 They were forced to drink urine and to clean toilets with their
bare hands.896 They had their heads forced into toilets.897 They also had their personal belongings
stolen.898 There is evidence of sexual abuse of some detainees899 and that detainees were subjected
to sleep deprivation.900 There was insufficient food.901 The detainees were verbally abused by the
guards, who said things like “the Croatian nation has to be destroyed”, “all Croats have to be killed;
Split and Zadar are burning, Šibenik will burn as well”.902 On one occasion, Vojislav Šešelj visited
the old hospital and insulted the detainees, asking them “how many Serbian children they
slaughtered, how many mothers”.903
887 Stanko Ersti, Ex. 392, T. 24972-24973, 26 Apr 2006, T. 3874-3875.
888 Luka Brki}, 5 Apr 2006, T. 3252, 3266, 3276-3277, 7 Apr 2006, T. 3390, 3408.
889 Luka Brki}, 7 Apr 2006, T. 3439.
890 Luka Brki}, 5 Apr 2006, T. 3279-3280, 3285. See also Ex. 518, p. 4; Ex. 286.
891 Luka Brki, 5 Apr 2006, T. 3279, 7 Apr 2006, T. 3438.
892 Luka Brki}, 5 Apr 2006, T. 3282-3283.
893 Stanko Ersti}, Ex. 392, T. 24971, 24980, 24983; Ex. 959, p. 5. Luka Brki}, 5 Apr 2006, T. 3280-3281, testifying that
he was dragged into the hallway several times, where he was beaten by four or five men and that the beatings became
more frequent as it became known that the detainees were going to be exchanged.
894 Ex. 959, p. 5. See also Ex. 919, under number 209 H; Ex. 286, p. 1; Ex. 287, p. 1.
895 Ex. 984, pp 23-24.
896 Ex. 984, pp 23-24.
897 Ex. 984, pp 23-24.
898 Ex. 984, pp 23-24.
899 Former detainees reported that detainees were sexually abused through forced mutual oral sex or oral sex with prison
guards, and mutual masturbation, Ex. 984, p. 24. See also Luka Brki} 5 Apr 2006, T. 3283, testifying that he heard that
there had been attempts to rape men in the room next to his.
900 Ex. 392, T. 24980, 24983; Ex. 959, p. 5; Ex. 984, pp 23-24.
901 Stanko Ersti}, Ex. 392, T. 24980, 24983; Ex. 959, p. 5; Ex. 984, p. 23-24 (reporting that detainees had inadequate
food, being fed only three eggs a day and that one former detainee lost over twenty kilograms during his detention).
902 Stanko Ersti, Ex. 396, p. 4.
903 Ex. 959, p. 7.
Case No. IT-95-11-T 109 12 June 2007
289. “Marti}’s police”, wearing blue uniforms, carried out beatings together with people in
camouflage uniforms.904 Ivan Atelj, who was also detained and beaten at the old hospital, stated
that while Stevo Plejo and Jovica Novakovi} were in charge of the old hospital prison, they
“allowed beatings of prisoners by civilians, Serbian prisoners, ‘Marti}’s Special Forces members’
and all others who wanted to beat them.”905
290. From his mistreatment in detention, Luka Brki} sustained permanent injuries to his stomach
and contracted Hepatitis B. He is still receiving medical treatment.906 Stanko Ersti} sustained two
broken ribs and one cracked rib, while Ivan Atelj sustained three broken ribs and injuries to his
spine.907
291. On at least one occasion the leadership of the prison was informed that detainees had been
mistreated by guards. Disciplinary measures were taken against the responsible guards.908 However,
the guards were not removed from the prison but were only suspended and reinstated later.909
292. The International Committee of the Red Cross (“ICRC”) was allowed to visit the detainees
at the old hospital.910 During the visits, some prisoners did not dare to tell the ICRC representatives
that they were being beaten, for fear of being “really beaten up”. The detainees who had been badly
beaten and seriously injured were transferred to other rooms where the ICRC representatives could
not visit them.911
293. As of August 1991, any detainee held at the old hospital was supposed to be detained on the
basis of a decision by a judge.912 There is no evidence that Luka Brki} or Stanko Ersti} were ever
charged with any crime or that they were brought before a judge or military panel to assess the
legality of their detention. However, Ivan Atelj stated that he was charged and that the indictment
904 Luka Brki}, 5 Apr 2006, T. 3280-3283, also testifying that a member of the “Marti}’s police” was the most violent
during the beatings. Luka Brki} knew some of the members of the “Marti}’s police”. He specifically mentions the
“Grahovac brothers from Smilj~i}i”, Djuro from Plavno and Momir upa~, ibid. The Trial Chamber further notes that a
Kazimir Graovac from Smilj~i}i is listed on Ex. 906, Employee list old hospital May 1993, p. 13. The Trial Chamber
notes that Momo upa~ and Kazimir Grahovac are mentioned as guards at the prison by Ivan Atelj, Ex. 959, p. 6.
905 Ex. 959, p. 5. Although Stevo Plejo testified that as soon as professional guards started working in the old hospital,
they were able to prevent anyone entering the prison, Stevo Plejo, 21 Sep 2006, T. 8811. The Trial Chamber does not
find this piece of testimony credible in light of the surrounding evidence. See also Luka Brki, 5 Apr 2006, T. 3280-
3281, testifying that people came from outside of the old hospital to beat detainees.
906 Luka Brki}, 5 Apr 2006, T. 3291.
907 Stanko Ersti}, Ex. 392, T. 24971; Ex. 959, p. 5.
908 Witness MM-090, 29 Aug 2006, T. 7386-7387, 30 Aug 2006, T. 7432; Stevo Plejo, 20 Sep 2006, T. 8735-8737.
909 Stevo Plejo, 22 Sep 2006, T. 8849-8850. Stevo Plejo testified that he had asked Risto Matkovi}, the then-Minister of
Justice, to replace Jovica Novakovi} because Novakovi} had been present when guards were “slapping prisoners
about in his presence” and had done nothing about that. Jovica Novakovi} was suspended and later reinstated in a lower
position. Stevo Plejo, 20 Sep 2006, T. 8730-8733, 8742; Ex. 905; Ex. 923.
910 Stanko Ersti}, Ex. 392, T. 24981; Stevo Plejo, 20 Sep 2006, T. 8737-8738; Witness MM-090, 29 Aug 2006, T. 7386-
7387.
911 Stanko Ersti}, Ex. 392, T. 24981, 25000.
912 Witness MM-090, 4 Sep 2006, T. 7674-7675.
Case No. IT-95-11-T 110 12 June 2007
was presented to him verbally, but he was not brought before a judge.913 Denis Dr~a, the Serb cellmate
of Ivan Atelj, was released on 11 February 1992, by a decision of the Knin District Court.914
Out of approximately 300 detainees at the old hospital between mid-1991 and mid-1992, only 13
people were released upon the decision of a court.915
294. In October 1991, Milan Marti} was seen in the prison wearing a camouflage uniform with
the insignia of the Milicija Krajine.916
F. Crimes of deportation and forcible transfer
295. In addition to evidence of displacement of the Croat population in the SAO Krajina and
RSK discussed above, the Trial Chamber notes the following evidence concerning deportation and
forcible transfer.917
296. Beginning in 1990, Croat businesses and properties were blown up in Knin and there was
constant pressure on the local Croat population.918 From around April 1991, discriminatory policies
were applied against Croats, and Croat houses in the Knin area were searched for weapons.919
Following the fighting in the Hrvatska Kostajnica, Knin and Glina areas in August 1991, Croat
civilians began to leave their homes to go to Zagreb, Sisak and other places.920
297. Due to the situation prevailing in the Knin area, the Croat population began to fear for their
safety and began requesting authorisation from the RSK authorities to leave the RSK territory.921
The insecurity of the Croats was also aggravated by speeches of Milan Marti on the radio that he
could not guarantee their safety, particularly in the area of Knin.922 As a result, in the period
between 1992 and 1993 the RSK police directed the Croat population towards Croat settlements
913 Ex. 959, p. 7.
914 Ex. 919, under no. 240 S.
915 Ex. 919, also providing that one detainee was handed over to the Military Police on orders of the Public Prosecutor,
ibid., under nr. 202 S. See also Ex. 895, pp 10-11, a Human Rights Watch Report, according to which in August 1991
the Knin prison held 51 prisoners to be exchanged and none of whom had been charged or provided with a defence
attorney.
916 Stanko Ersti}, 26 Apr 2006, T. 3869-3870. In this respect, the Trial Chamber recalls the evidence that on 12
December 1991, a meeting was held between Milan Marti and chiefs of SJBs during which it was mentioned that in
“Krajina prisons in Korenica, Glina, Vrgin Most, Slunj and Knin” there were 128 persons detained, mostly members of
the ZNG and the Croatian MUP, Ex. 518, p. 4 (report signed by Milan Marti).
917 See supra paras 167, 177, 180, 186, 189, 202, 209, 212, 222, 228, 236-237, 239, 242.
918 Witness MM-078, 24 May 2006, T. 4461-4462.
919 Milan Babi}, 16 Feb 2006, T. 1418; Witness MM-078, 24 May 2006, T. 4461-4462, 25 May 2006, T. 4521; See also
Witness MM-096, 24 Aug 2006, T. 7067, 7072-7073.
920 Nikola Dobrijevi, 13 Nov 2006, T. 10977; Ex. 1017 (providing that in August 1991 there were 650 displaced
people in Zagreb who were mostly from Glina and Knin, that most people from Glina had gone to Velica Gorica, that
all of Kostajnica had been “evacuated” and some 2,500 had fled to Bosanski Novi and to Zagreb). See also Milan
Babi}, 17 Feb 2006, T. 1572-1574, 20 Feb 2006, T. 1598.
921 Witness MM-117, 13 Oct 2006, T. 9399
922 Witness MM-078, 25 May 2006, T. 4518.
Case No. IT-95-11-T 111 12 June 2007
near Knin, such as Vrpolje and Kninsko Polje.923 In Vrpolje, which was five kilometres north of
Knin, a cultural centre was used as a gathering point for Croats, who had requested authorisation to
leave the RSK.924 The Knin police secured the area at the cultural centre.925 The conditions there
were poor and the Croats were not free to leave but had to wait for an agreement to be reached
between the RSK Government, international organisations and the Croatian authorities before they
could be transferred.926 The police from Knin organised and escorted bus convoys from Vrpolje to
Šibenik and across Lika to Karlobag.927
298. A decision on the conditions upon which Croats and other nationalities could return to the
RSK was adopted by the RSK government on 21 April 1992.928 However, in September 1992,
UNPROFOR reported that “it might be unrealistic to carry out any return of displaced persons in
the forthcoming future” due to the likelihood of hostile acts being carried out against returning
Croats.929
299. There is considerable evidence that similar displacement of the Croat population as a result
of harassment and intimidation occurred elsewhere in the SAO Krajina, and subsequently RSK,
territory and continued until the end of 1994.930 The evidence shows that harrassment and
923 Milan Babi}, 20 Feb 2006, T. 1646-1647; Ex. 897 (providing that “local Milicija” guarded residents of the village of
Vrpolje, who had been forced to leave their homes and that the Milicija had three buses to transport the Croats to
territories under Croatian control but that this had not been done as confirmation had not been received that the Croatian
side was ready to receive them). See also Witness MM-096, 25 Aug 2006, T. 7153.
924 Milan Babi}, 20 Feb 2006, T. 1647; MM-078, 24 May 2006, T. 4460-4461. Croats would travel to Vrpolje in their
own vehicles and were accommodated at the cultural centre for up to three days, Witness MM-078, 24 May 2006, T.
4460-4461, 25 May 2006, T. 4545-4546, 4468; Ex. 729 (providing that Vrpolje was a “safe haven” for the Croats). See
also Ex. 1042, Tab 2; Ex. 1043, Tab 2, DVD 4, pp 27-31; Ex. 1044.
925 Witness MM-078, 25 May 2006, T. 4465, 4519-4520 (also testifying that the police assisted the Croats in leaving the
RSK, ibid., T. 4465). See also Witness MM-117, 13 Oct 2006, T. 9399.
926 Witness MM-078, 25 May 2006, T. 4468 (testifying that the Croats were provided with blankets and only small
quantities of food).
927 Witness MM-078, 25 May 2006, T. 4468.
928 Ex. 758; Charles Kirudja, 31 May 2006, T. 4872-4873.
929 Ex. 731, p. 3.
930 Witness MM-078, 24 May 2006, T. 4460-4461, 25 May 2006, T. 4466; Witness MM-096, 22 Aug 2006, T. 6914-
6917 (testifying that Croats, who were afraid for their lives, were put up in schools and other public buildings in
Benkovac by the municipality Crisis Staff which organised a convoy that was escorted by the RSK police until the
confrontation line in Zemunik); Milan Babi}, 20 Feb 2006, T. 1598; Ex. 551, p. 1 (providing that by April 1992 there
were almost no Croats left in Glina); Ex. 726 (listing in summary form 497 crimes committed against the Croat
population in Sector South and reporting on five instances of forced evictions of Croats and subsequent transfer to
Croatia of one of the victims); Ex. 729, p. 1 (providing that over 100 Croats had left their homes in the Medvida area
and were living in caves, fields and forests, that around 50 Croats had filed requests with the civil police in Drniš to
leave); Ex. 736 (providing that 10 Croats were transferred from Medvida to the Croat side on 2 October 1992, that 16
Croats were transferred to the Croat side on 16 October 1992 from Medvia Kruševo and Obrovac and that during one
month 155 applications to leave the RSK territory had been received in Benkovac); Ex. 761 (reporting on the expulsion
of 5 Croats from Liko Petrovo Selo, dated 16 July 1992, see also Charles Kirudja, 31 May 2006, T. 4879-4880); Ex.
762, p. 3 (reporting the expulsion by “a group of uniformed persons” of 12 Croats from the village Korana in the
municipality of Korenica, see also Charles Kirudja, 31 May 2006, T. 4882-4883); Ex. 865, p. 25 (reporting that before
being granted permission to leave Sector South the Croats were forced to sign a statement that their departure was
voluntary); Ex. 971, p. 3 (providing that 16 persons from Podlapac had expressed a wish to be transferred to Croatia);
Ex. 985, pp 4-5 (reporting that Croat families were gathered from their houses and transported by bus to areas outside
the UNPAs). See also Ex. 75, p. 5 (reporting that the non-Serb population in Sector North was “very small”).
Case No. IT-95-11-T 112 12 June 2007
intimidation of the Croat population was carried out on a large scale by the police and by local
Serbs in the territory.931 On 14 June 1993, Milan Marti met with Cedric Thornberry, the
UNPROFOR Director of Civil Affairs, concerning, inter alia, the issue of Croats who wanted to
leave the RSK. During the meeting, Milan Marti requested that Croats who wished to leave the
RSK sign statements that no one had put pressure on them to leave and that these statements bear
the signature of either Cedric Thornberry or another United Nations representative. Cedric
Thornberry agreed to these requests.932
300. The RSK authorities cooperated with the authorities in Bosanski Novi, BiH, regarding the
displacement of the non-Serb population from that municipality.933 There is evidence that the RSK
MUP was to be involved in providing security for an organised “safe departure” of Muslims and
other non-Serbs in the direction of Croatia, Slovenia, Austria, and Germany in July 1992.934
301. In June 1993, the RSK population was 433,595 citizens, the ethnic break-down of which
was 92% Serbs, 7% Croats and 2% others.935 The Prosecution expert Ivan Gruji testified that
220,338 persons of non-Serb ethnicity were forcibly expelled “in the aggression against the
Republic of Croatia”.936 Ivan Gruji was unable to explain with certainty how many of these
persons were expelled from the territories which comprised the SAO Krajina and later the RSK.937
The Trial Chamber therefore finds that it cannot rely on the evidence of Ivan Gruji to determine
931 Witness MM-079, 3 Apr 2006, T. 3111 (testifying that “several people said that Marti}'s policemen went door-todoor
telling people to leave Knin, that is the SAO Krajina”); John McElligott, 26 May 2006, T. 4581, 4614-4615; Ex.
728, p. 3 (providing also that in the month of October 1992 five Croats were murdered and that houses vacated by
Croats have been burned down); Ex. 731 (reporting that “the Serb side” is building up a climate of threat and fear of
aggression out of ongoing incidents, that the “Militia is expanding ethnic cleansing systematically”, and that the “Serb
side” warned against returning Croats without RSK consent because “the recent acts against Croatians here can be
considered as indication of what would happen on larger scale”); Ex. 732 (listing incidents of murder, destruction and
intimidation of Croats in the Benkovac, Borovac, and Knin areas by the local police); Ex. 734 (letter reporting on
beating and robbing of elderly and helpless people in the Vrlika area by members of the “Militia”); Ex. 736 (listing a
number of incidents of violence, including murders, theft and destruction, aimed at Croats in Korenica, Zaluznica, Knin,
Vrlika, Benkovac); Ex. 738 (providing that many Croats wanted to leave the UNPA due to not feeling safe); Ex. 757, p.
3 (providing that in Sector North by July 1992 about 22,000 Croats were listed as “Missing/Displaced”). See also Ex.
75; Ex. 866; Ex. 985.
932 Ex. 965, p. 8.
933 Ex. 752; Ex. 753; Ex. 754; Ex. 755; Ex. 756; Ex. 757, p. 7. Charles Kirudja testified that during the first organised
convoy directed to Croatia, up to 8,000 Bosnian Muslims were expelled. He explained that the Muslims were not
leaving voluntarily, Charles Kirudja, 31 May 2006, T. 4849, 4857-4863, 4871.
934 Ex. 754.
935 Ex. 178, ERN 0113-2359. This is further broken down by area (Eastern Slavonia, Western Srem and Baranja: 95%
Serbs, 4% Croats, 1% others, Banija: 97% Serbs, 2% Croats, 1% others, Kordun: 98% Serbs, 2% Croats, Lika: 93%
Serbs, 5% Croats, 2% others, Northern Dalmatia: 90% Serbs, 10% Croats, and Western Slavonia: 73% Serbs, 25%
Croats, 2% others), see ERN 0113-2360. Witness MM-096 testified that by 1994 “quite a lot of inhabitants had left the
territory of the RSK”, 25 Aug 2006, T. 7139. See also Witness MM-090, 4 Sep 2006, T. 7703-7704.
936 Ex. 291, pp 18-19.
937 Ivan Gruji, 12 Apr 2006, T. 3597, testifying that he provided the Trial Chamber “with numbers that apply to the
existing, current division into counties in Croatia” and “basically it covers the SAO Krajina municipalities as well.
Counties were partly occupied, and the people recorded as expelled were expelled solely from these occupied
territories.”
Case No. IT-95-11-T 113 12 June 2007
the exact number of persons of Croat and other non-Serb ethnicities who left the territory of the
SAO Krajina and RSK during the period of the Indictment.
G. Attacks on Zagreb on 2 and 3 May 1995
1. “Operation Flash”
302. In the early morning hours of 1 May 1995, armed forces of Croatia launched a military
offensive known as Operation Flash.938 The Trial Chamber has been provided conflicting evidence
as to the purpose of this operation. There is evidence that the purpose was to take control over
Western Slavonia (Sector West).939 There is evidence that the operation was Croatia’s response to
Milan Marti’s decision to close the Zagreb-Belgrade motorway.940 There is also evidence that
Croatia planned its attack long before the closure.941 Two Croatian guard brigades, one regular HV
brigade, and special police forces were involved in the operation.942 Negotiations to find a peaceful
settlement took place during the operation,943 and agreements were reached on 3 May 1995.944
Operation Flash ended around 4 May 1995 with the RSK losing control over Western Slavonia.945
A large part of the Serb population fled the area of Western Slavonia.946
938 Veljko Džakula, 16 Jan 2006, T. 381; Milan Babi}, 21 Feb 2006, T. 1659; Peter Galbraith, 25 Apr 2006, T. 3805-
3806; Mile Daki, 26 Oct 2006, T. 10082.
939 Peter Galbraith, 25 Apr 2006, T. 3805-3806; Mile Daki}, 25 Oct 2006, T. 10058. See also Ex. 99, p. 6.
940 Milan Babi}, 21 Feb 2006, T. 1660-1661; Peter Galbraith, 25 Apr 2006, T. 3805-3806; Ex. 933, p. 5. On 28 April
1995, a Serb was killed at one of the rest areas on the motorway just outside Sector West, and in retaliation local Serbs
fired on motorists inside that Sector and Milan Marti} decided to close down the motorway. Peter Galbraith, 25 Apr
2006, T. 3805-3806; Mile Daki}, 25 Oct 2006, T. 10058; Ex. 933, p. 2; Ex. 99, p. 4. Milan Babi} stated that during
negotiations it was already agreed that the motorway would be reopened, but Milan Marti} discarded that possibility
and said he would not allow that to happen, Milan Babi}, 21 Feb 2006, T. 1667. Documentary evidence presented to the
Trial Chamber corroborated Milan Marti}’s refusal to open the motorway even though it was ready to be reopened, Ex.
789, p. 5; Ex. 233, intercepted telephone conversation, p. 5 (Ex. 789 and Ex. 233 are the same intercepted
conversation); Ex. 99, p. 5.
941 In his book titled “All My Battles”, Janko Bobetko, Chief of the Main Staff of the Croatian Army during Operation
Flash, wrote that the initial operation was planned on 5 December 1994 and completed on 4 May 1995 as part of the
overall plan of preparations for the final operations by the Croatian Army of what would later become “Operation
Storm”, Ex. 931, pp 8, 9-12, 17; Slobodan Peri}, 6 Sep 2006, T. 7846-7847, 7849. See also Ex. 933, p. 27; Ex. 934, pp
1-3. The Croatian military command warned UNPROFOR in advance about the Operation, during the morning of 1
May 1995, Reynaud Theunens, 3 Feb 2006, T. 1087; Slobodan Peri}, 6 Sep 2006, T. 7845; Ex. 930.
942 Reynaud Theunens, 3 Feb 2006, T. 1081.
943 Witness MM-117, 13 Oct 2006, T. 9402-9403. The Serb delegation asked for a cessation of hostilities to become
effective immediately at midnight on 1 May 1995, but this was rejected by the Croatian side, Witness MM-117, 13 Oct
2006, T. 9406.
944 On 3 May 1995, members of the international community met in Knin to agree on the text of the agreement which
was accepted by both the Serbs and the Croats that same day, Witness MM-117, 13 Oct 2006, T. 9408-9409. It was
agreed that military activities would cease and thereafter UNPROFOR forces would be in a position to act in the area,
Witness MM-117, 17 Oct 2006, T. 9596. On 3 May the Serbian delegation in Geneva accepted the entire offer of the
international community for the resolution of the crisis in the relations between the Republic of the Serbian Krajina and
Croatia, Witness MM-117, 18 Oct 2006, T. 9650-9651. See also Ex. 112; Ex. 935.
945 Milan Babi}, 21 Feb, 2006, T. 1660-1661; Veljko Džakula, 18 Jan 2006, T. 568; Peter Galbraith, 25 Apr 2006, T.
3820; Slobodan Peri}, 6 Sep 2006, T. 7848. See also Ex. 99, p. 14; Ex. 112.
946 Witness MM-117, 13 Oct 2006, T. 9401-9402; Reynaud Theunens, 3 Feb 2006, T. 1097; Ex. 99, p. 14. According to
Witness MM-003 the entire Serb population was expelled from Western Slavonia, Witness MM-003, 10 Mar 2006, T.
2170-2171. Slobodan Peri} stated that 20,000 people left the area, Slobodan Peri}, 6 Sep 2006, T. 7866. See also Veljko
Case No. IT-95-11-T 114 12 June 2007
2. Shelling of Zagreb
(a) 1 May 1995 – Preparation for attack
303. On 1 May 1995, a meeting was held between, inter alia, Milan Marti}, the Chief of the SVK
Main Staff General Milan ^eleketi}, the Prime Minister and ministers of the RSK government. The
meeting concerned the proposal of the Supreme Defence Council to deal with the situation which
had arisen in Western Slavonia resulting from Operation Flash during the morning that day. The
evidence shows that both peaceful solutions, involving negotiations and a surrender of parts of
Western Slavonia, and non-peaceful solutions were discussed and that Milan Marti}, Milan
^eleketi} and the most senior officers of the SVK Main Staff were in favour of the latter.947 At
1300 hours on 1 May 1995, Milan eleketi, in the presence of inter alia Milan Marti}, ordered
artillery fire on Sisak, south-east of Zagreb.948 The evidence shows that the reason for the attack
was “to retaliate against the HV who had carried out an aggression on the Western Slavonia.”949
Artillery fire was opened at 1700 on 1 May 1995.950
304. On 1 May 1995, Milan eleketi ordered the M-87 Orkan unit of the SVK to “be alert and
ready for engagement on his order” and directed them to march from the Knin area to take up
positions in Vojni, 50 kilometres south of Zagreb, by 1400 hours that day.951
(b) 2 May 1995
305. In the mid-morning on 2 May 1995,952 without warning,953 Orkan rockets hit Zagreb.954
Rockets struck the centre of the city, including: Strossmayer Square, Matica Hrvatska Street,
Džakula, 18 Jan 2006, T. 571-572 (testifying that there were about 1,250 victims); Ivan Gruji}, 12 Apr 2006, T. 3633
(that 168 persons were killed during Operation Flash); Rade Ra{eta, 3 May 2006, T. 3970-3971 (testifying that there
were about 100 victims); Slobodan Peri}, 6 Sep 2006, T. 7866, 7 Sep 2006, T. 7947-7948 (testifying that the number of
identified victims was 284, including 77 elderly, 30 women and 10 children but that the total number of killed during
Operation Flash was 1,200).
947 Rade Rašeta, 2 May 2006, T. 3932-3933, 3940; Ex. 95.
948 Rade Ra{eta, 2 May 2006, T. 3930-3931; Ex. 93 provides that “members of the Supreme Defence Council” were
present when the order was given. However, Rade Ra{eta, who was present, testified that it was a meeting of Milan
eleketi and his closest associates, his “collegium”, Rade Ra{eta, 2 May 2006, T. 3930. Milan eleketi was
appointed Commander of the Main Staff of the SVK by Milan Marti on 22 February 1994, Ex. 80; Ex. 83.
949 Ex. 93.
950 Ex. 93.
951 Ex. 92. The M-87 Orkan is a self-propelled long-range multiple rocket launching system, Ex. 7, p. 38; Jo`ef Poje, 6
Jun 2006, T. 5123. See infra section IV B 4 (b). In 1995, the Orkan rocket launchers were subordinated to Commander
Lieutenant General eleketi}, as Chief of the Main Staff of the SVK, Rade Ra{eta, 2 May 2006, T. 3935; Jo`ef Poje, 6
Jun 2006, T. 5110-5111. The evidence also shows that the use of the Orkan was subject to the approval of the
commander of the Main Staff of the SVK, Jo`ef Poje, 6 Jun 2006, T. 5112-5113; Ex. 781, p. 11, p. 25; Ex. 780, p. 13;
Ex. 7, pp 62-63.
952 Peter Galbraith, 25 Apr 2006, T. 3769; Branko Lazarevi}, 14 Jun 2006, T. 5624; Aleksandra Szekely, Ex. 824, p. 2.
953 Branko Lazarevi}, 14 Jun 2006, T. 5623, 15 Jun 2006, T. 5715; Peter Galbraith, 25 Apr 2006, T. 3762; Sanja
Risovi}, 14 Jun 2006, T. 5577; Ra{eljka Grmoja, 19 Jun 2006, T. 5784; Mina @unac, 20 Jun 2006, T. 5810-5811.
954 Ex. 95, p. 3, wherein on 2 May 1995, Rade Ra{eta informed his counterparts in the VJ that the SVK fired eight
rockets from “an Orkan multiple rocket launcher on the Banski Dvori/ Presidential Palace/, the Ministry of Defence and
Case No. IT-95-11-T 115 12 June 2007
Petrinjska Street, Boskovi}eva Street and Mrazovi}eva Street as well as Dra{kovi}eva Street, the
intersection of Vla{ka and Dra{kovi}eva Streets and a school building in Kri`ani}eva Street, the
village of Ple{o near Zagreb/Ple{o airport,955 and the airport itself.956
306. Five persons were killed during these rocket attacks. The body of Damir Dra~i} was found
lying on the sidewalk at Vla{ka Street.957 Ana Muteveli} was killed when a tram was hit at the
intersection of Dra{kovi}eva and Vla{ka Streets.958 The body of Stjepan Krhen was found in the
courtyard of No. 41 Vla{ka Street.959 Ivanka Kova~ died at the trauma clinic in Dra{koviceva Street
from the injuries she sustained some 700 metres from the hospital.960 Ivan Brodar was injured on
Dra{kovi}eva Street and died as a result of his injuries on 3 May 1995.961
307. A number of witnesses, who were injured during the shelling of Zagreb on 2 May 1995,
testified before the Trial Chamber, many of whom still suffer from the injuries sustained on that
day. Sanja Bunti was injured in Strossmayer Square.962 She received injuries to her head and
legs.963 Aleksandra Szekely was injured while waiting at the intersection of Bo{kovieva-
Pleso airport”; Ex. 303; Ex. 94, p. 2, indicating that on 2 May 1995 UNPROFOR heard 5 rockets being fired from Glina
and it was assessed that these were the Orkans which impacted in Zagreb.
955 Branko Lazarevi}, 15 Jun 2006, T. 5656-5657, 14 Jun 2006, T. 5629; Ivan Mikul~i}, 14 Jun 2006, T. 5598, 5617-
5618; Ex. 805; Ex. 1043, T. 3-11. Ple{o village is around 500 meters from Zagreb/Ple{o Airport, Ivan Mikul~i}, 14 Jun
2006, T. 5597, 5608. See also Ex. 1042, Tab 2; Ex. 1043, Tab 2, DVD 1, pp 3-11, pp 12-16, pp 18-31.
956 Branko Lazarevi}, 14 Jun 2006, T. 5629. The Trial Chamber heard testimony that while the official name of the
airport was “Zagreb” it was locally referred to as “Ple{o”, Ivan Mikul~i}, 14 Jun 2006, T. 5607. Ex. 810 shows the
damage inside the perimeter of Zagreb/Ple{o Airport. See also Ex. 1042, Tab 2; Ex. 1043, Tab 2, DVD 1, pp 1-2.
957 Ex. 805, Plan 2, No. 2. See also Ex. 799, p. 46, p. 81; Branko Lazarevi}, 14 Jun 2006, T. 5634, 15 Jun 2006, T.
5700. His injuries were sustained while he was in his car, Ex. 805, Plan 2, marked with a number 3; Branko Lazarevi},
15 Jun 2006, T. 5666-5667. An exhibit shows the body of Damir Dra~i}, Ex. 386, F-53 and F-54; Branko Lazarevi}, 15
Jun 2006, T. 5673-5674. See also Ex. 383, at 8 min. 8 sec.; Branko Lazarevi}, 14 Jun 2006, T. 5627.
958 Branko Lazarevi}, 15 Jun 2006, T. 5658. Ana Muteveli} was killed while on a tram, Branko Lazarevi}, 14 Jun 2006,
T. 5634. See also Ex. 799, p. 81; Branko Lazarevi}, 15 Jun 2006, T. 5700. Ex. 805, Plan 2, marked with a number 1,
indicates the location where the body of Ana Muteveli} was found, Branko Lazarevi, 15 Jun 2006, T. 5666. Ex. 386,
F-35 and F-36 show her body, Branko Lazarevi}, 14 Jun 2006, T. 5626, 15 Jun 2006, T. 5671. See also Ex. 383 at 7
min. 41 sec; Ex. 804, at the location marked in the map as number 1, Branko Lazarevi}, 15 Jun 2006, T. 5658. Ex. 386,
F-1 shows Dra{kovieva St., Mina @unac, 20 Jun 2006, T. 5825. Ex. 386, F-30 shows the intersection of Vla{ka and
Dra{kovi}eva streets, Mina @unac, 20 Jun 2006, T. 5825.
959 Ex. 805, Plan 2, No. 3 marks the site where Stjepan Krhen was found during the on-site investigation, Branko
Lazarevi}, 15 Jun 2006, T. 5667. See also Ex. 799, p. 81; Branko Lazarevi, 15 Jun 2006, T. 5700. Stjepan Krhen had
sustained several injuries on his body, on his chest, and on his legs, and had succumbed to his wounds “immediately”,
Branko Lazarevi}, 14 Jun 2006, T. 5634-5635; Ex. 799, p. 47. Ex. 386, F-98 and F-99 show Stjepan Krhen, Branko
Lazarevi}, 15 Jun 2006, T. 5674.
960 Branko Lazarevi}, 14 Jun 2006, T. 5635. See also Ex. 799, p. 81; Branko Lazarevi}, 15 Jun 2006, T. 5700. The
cause of her death is indicated as "explosive wounds of the head, of the body, and the extremities”, Ex. 800; Branko
Lazarevi, 14 Jun 2006, T. 5639-5640.
961 Branko Lazarevi}, 14 Jun 2006, T. 5638-5639, 5641. He was aged 77 at the time of the shelling, and suffered
multiple traumas of the head, chest, and lower extremities, Branko Lazarevi}, 14 Jun 2006, T. 5638-5639. See also Ex.
799, p. 71; Branko Lazarevi}, 14 Jun 2006, T. 5640-5641; Ex. 801.
962 Sanja Bunti}, 19 Jun 2006, T. 5761-5763.
963 She received injuries to the upper part of both her legs from shrapnel and pellets, as well as two pellets which lodged
in her head, one hitting the bone causing a splinter fracture, Sanja Bunti}, 19 Jun 2006, T. 5776-5777. She still has
pieces of shrapnel in her liver, which require considerable follow-ups; she also has constant headaches caused by the
shrapnel in her head, Sanja Bunti}, 19 Jun 2006, T. 5768-5769, 5777.
Case No. IT-95-11-T 116 12 June 2007
Petrinjska, and received injuries to the left side of her body and her left leg.964 Mina @unac was
injured in Vla{ka Street.965 She received injuries to her leg, hip, hand and head.966 Ra{eljka Grmoja
was 17 years old at the time of the rocket attack on Zagreb and was in her school in Kri`ani}eva
Street967 when she was injured in her shoulder and eye.968 Ivan Mikul~i} was injured at his house in
Ple{o village near Zagreb on 2 May 1995,969 and received injuries in his back.970 There is evidence
that in total 160 people were injured during the attack on 2 May 1995.971
308. The Trial Chamber finds that as a result of the shelling on 2 May 1995, Ana Muteveli},
Damir Dra~i}, Stjepan Krhen, Ivanka Kova~ and Ivan Brodar were killed, and at least 160 people
were injured.
(c) 3 May 1995
309. At midday on 3 May 1995,972 Zagreb was again shelled by Orkan rockets973 on the
following locations: Ma`urani}eva Square, Marshall Tito Square where the Croatian National
Theatre was located, and Klaieva Street Children’s Hospital.974
964 She had received approximately twelve pieces of shrapnel, six of which still remain in her body, Aleksandra
Szekely, Ex. 824, p. 3.
965 Mina @unac, 20 Jun 2006, T. 5811-5812, T. 5826; Ex. 819; Ex. 386, F-50, F-52.
966 Mina @unac, 20 Jun 2006, T. 5819. She sustained serious injuries to her right leg, and one part of her foot was
amputated, Mina @unac, 20 Jun 2006, T. 5822. She also sustained injuries to her right hand, hip and head. She spent “all
in all” about a year in the hospital, Mina @unac, 20 Jun 2006, T. 5823-5824. Ex. 818, photographs showing injuries
caused to Mina @unac. She still has over 45 pieces of shrapnel in her leg and had seven surgeries during the first couple
of months, and after that three more. Mina @unac, 20 Jun 2006, T. 5824. She still suffers constant pain and has trouble
walking, as well as problems with her hand and with writing, Mina @unac, 20 Jun 2006, T. 5827-5830.
967 Kri`ani}eva St. School is a ten-minute walk from Ban Jelai} square, Ra{eljka Grmoja, 19 Jun 2006, T. 5780-5781.
968 Ra{eljka Grmoja, 19 Jun 2006, T. 5781-5782. She received shrapnel in her left shoulder and glass in her left eye,
Ra{eljka Grmoja, 19 Jun 2006, T. 5781-5782, T. 5793; Ex. 813, Photograph of Kri`ani}eva Street School marked by
Ra{eljka Grmoja, showing the window where she was injured. See also her explanation of this photo, Ra{eljka Grmoja,
19 Jun 2006, T. 5785-5787. It took her a month to go back to school and she suffered psychological trauma for a year or
two after the event, Ra{eljka Grmoja, 19 Jun 2006, T. 5794-5795.
969 Ivan Mikul~i}, 14 Jun 2006, T. 5598-5599.
970 He was injured in his spine and some of the shrapnel remains to this day, Ivan Mikul~i}, 14 Jun 2006, T. 5600. See
also Ex. 796, medical report; Ex. 797, granting him the status of civilian war invalid of group X with 20% permanent
disability; Ivan Mikul~i}, 14 Jun 2006, T. 5601. Ex. 798, map on which Ivan Mikul~i} indicated his house and where
cluster bombs had fallen. Ex. 809, indicates damage caused in Ple{o village.
971 Ex. 799, pp 63-80; Branko Lazarevi, 15 Jun 2006, T. 5700. Of the 146 victims listed as injured in the Indictment for
2 May 1995, Ex. 799 contains the names of 144 victims, Ex. 799, pp 63-80. The Trial Chamber does not find any
reason to doubt that 160 people were injured. (Two persons listed as injured (Ines Mali} and Stipe Mili~evi}) in Annex
II to the Indictment are found neither in this exhibit nor in other evidence). See also Ex. 303, listing 203 persons
wounded and 5 persons killed on 2 and 3 May 1995, of which 7 wounded and 1 killed were “MUP.HV”. The document
states that all of these “MUP.HV” were “out of service”, the Trial Chamber interprets this, in light of the principle of in
dubio pro reo as meaning that they were off-duty and not that they were no longer enlisted in the army or police.
972 Božica Lisak, Ex. 822, p. 2; Sanja Risovi, 14 Jun 2006, T. 5580.
973 Ex. 303; Ex. 94, p. 4, indicating that on 3 May 1995, UNMO heard the firing of rockets approximately from 5
kilometres northeast of Vrginmost and afterwards observed the movement of an M-87 “Orkan” rocket launcher during
the same time as the attack against Zagreb.
974 Branko Lazarevi, 15 Jun 2006, T. 5648-5649, 5659-5660; Ex. 805. Rockets also landed in the suburbs, Novi Zagreb
(ehi) and Žitnjak, but caused no damage, Branko Lazarevi}, 15 Jun 2006, T. 5649; Ex. 811. See also Ex. 1042, Tab 2;
Ex. 1043, Tab 2, DVD 1, pp 32-36.
Case No. IT-95-11-T 117 12 June 2007
310. Two people were killed in this attack. Luka Skra~i} was injured on 3 May 1995, and died in
hospital on 6 June 1995.975 Ivan Markulin, a bomb disposal technician and police officer, died when
the bomblet he was trying to deactivate exploded outside Klai}eva Street Children’s Hospital.976
311. The Trial Chamber heard evidence from some of those who were injured on 3 May 1995.
Sanja Risovi} was at Klai}eva Street Children’s Hospital with her 4 month-old daughter when she
was injured to her shoulders, stomach, right leg, foot and back.977 Shortly after midday, 18 people,
including Božica Lisak, were injured when bombs fell through the glass roof of the Croatian
National Theatre.978 Božica Lisak was severely injured by 27 pieces of shrapnel.979 Milan Smoljan
was injured in his knee by bomblets when he was at Mažurani}eva Square, near the Croatian
National Theatre.980
312. In total, 54 persons were injured as a result of the shelling on Zagreb on 3 May 1995.981
313. The Trial Chamber finds that Luka Skra~i} and Ivan Markulin were killed and that 54
people were injured as a result of the shelling on 3 May 1995.
3. Involvement of the RSK leadership in the shelling of Zagreb
314. There is evidence that Milan Marti had considered shelling of Zagreb prior to 2 May 1995.
Already in 1992 and 1993, Milan Marti}, as Minister of the Interior, considered attacking Zagreb as
975 Branko Lazarevi}, 15 Jun 2006, T. 5652-5653, 5723. Ex. 803, containing the autopsy report for Ivan Brodar, shows
that Luka Skra~i} had died a violent death as a result of a pneumonia which had developed after having suffered
explosive wounds. The Exhibit establishes that there was a cause-effect relation between the injuries which Luka
Skra~i} sustained on 3 May 1995, and his subsequent death, Branko Lazarevi}, 15 Jun 2006, T. 5653. Ex. 802, p. 53
indicates that Luka Skra~i} suffered a blast wound to the head with an alien object lodged in his brain and was in a
coma on 3 May 1995. See also Sanja Risovi}, 14 Jun 2006, T. 5595.
976 Branko Lazarevi}, 15 Jun 2006, T. 5650-5651; Ex. 802, pp 40-41. Ex. 387, F-26, is the site where the bomblet
exploded in the hands of Ivan Markulin, Branko Lazarevi}, 15 Jun 2006, T. 5687.
977 Sanja Risovi, 14 Jun 2006, T. 5580-5584. She was wounded in her right shoulder blade, and one part of her back
muscle had to be removed as well as her shoulder blade. Her ribs were fractured and her lungs injured. She had shrapnel
wedged in her stomach muscle. She was also injured in her right leg and left foot, Sanja Risovi, 14 Jun 2006, T. 5585;
Ex. 794; Ex. 795. Sanja Risovi was in hospital until 16 June 1995 and then at a rehabilitation centre until 10 August
1995. She has had a total of eleven surgical procedures because of her injuries. She still spends three weeks of every
year in rehabilitation and suffers from rheumatoid arthritis which is aggravated by stress and shock. Sanja Risovi, 14
Jun 2006, T. 5586-5588. Sanja Risovi also testified that she saw three other injured persons at Klai}eva Street
Hospital: Mirna Kostovi, Zvonko Bakula and a pregnant lady, Sanja Risovi, 14 Jun 2006, T. 5584, 5594-5595; Ex.
802, pp 57-58.
978 Božica Lisak, Ex. 822, pp 2-3, stating that Božica Lisak, Matea Puko, Dubravko Kol{ek, Barbara Novkovi, and
Kri{tof Pastor were injured.
979 Božica Lisak, Ex. 822, p. 3. Božica Lisak was injured by 27 pieces of shrapnel in her body, mostly in her legs and
feet and one in her neck. She spent four weeks in Vinogradska Hospital in Zagreb and had the casts removed in July
and then spent a month in rehabilitation. As a result of her injuries Božica Lisak has 50% invalidity, ibid.
980 Milan Smoljan, Ex. 823, 28 Apr 2004, p. 2. He also saw other persons injured and bleeding, Milan Smoljan, Ex. 823,
28 Apr 2004, pp 2-3.
981 Ex. 802, pp 50-57, contains the names of all 48 victims listed in Annex II to the Indictment. See also Ex. 303, see
supra fn 971.
Case No. IT-95-11-T 118 12 June 2007
a response to Croatian attacks on RSK cities.982 On 9 June 1993, Milan Marti, as Minister of the
Interior, informed Slobodan Milo{evi} that the P-65 LUNA rocket system had been moved to the
area of Banija and Kordun in order to prevent aggression or to carry out possible attacks on Zagreb,
should RSK towns come under attack.983
315. On 5 September 1994, Ratko Mladi}, the Commander of the Main Staff of the VRS,
requested Milan Marti} to approve the loan of 15 Orkan rockets in order to manufacture such
rockets for the VRS.984
316. In a meeting on 24 October 1994 with Peter Galbraith, the United States Ambassador to
Croatia, Milan Marti threatened to shell Zagreb.985 Milan Marti} stated “in effect that attacking
civilian targets in Zagreb, attacking the city itself was an option, a way in which the RSK could
respond to … a Croatian attack on the RSK”.986 Peter Galbraith warned Milan Marti} that a rocket
attack on Zagreb would be a crime.987
317. On 10 February 1995, Milan Marti, in a speech to the commanding officers of the SVK
stated emphatically that “no one can stop us to fire at Zagreb, Osijek, Vinkovci, Zadar, Karlovac,
Split”.988
318. In a newspaper article published in Serbia on 24 March 1995, Milan eleketi is reported as
stating:
In the case of the Ustasha aggression, we will certainly not miss the opportunity to hit them where
it hurts the most. We know their weak spots and where it hurts the most. Weak points are city
squares and we know who goes there – civilians. I have already said this and was criticised a little.
Well now, they may ask which squares and in which cities. I shall reply that that’s a military
secret. We shall make a decision about it and I think we will be precise. It is hard to say these
words because there are, as I said, civilians in the squares, innocent people. However, if we are in
war (and we are waging a filthy war for which they are first and foremost to blame), then there
will be no mercy. Not only will we be merciless but, as a commander, I shall decided sic where
we will direct our attacks, when and where it hurts the most.989
982 The Trial Chamber also notes Milan Marti}’s statement on 18 July 1992 that “it would be better … for Tu|man
and his soldiers not to touch us again because that would compel us to head forcefully for Zagreb and to turn it into
Vukovar,” Ex. 119, p. 2.
983 Ex. 12, p. 2. See also Reynaud Theunens, 27 Jan 2006, T. 808. Further evidence that shelling of Zagreb was
considered in 1993 can be seen from a report from the 51st Infantry Brigade Command, which states “unless Croatia
withdraws from occupied territories, the following operations will continue: hits on Zagreb with large missiles which
have not been used yet and which the world does not know of”, Ex. 89, p. 2.
984 Ex. 475.
985 Peter Galbraith, 25 Apr 2006, T. 3757-3759.
986 Peter Galbraith, 25 Apr 2006, T. 3778. Peter Galbraith also testified that he warned Milan Marti} that the RSK
would not be able to survive Croatian military action, to which Milan Marti} responded that the RSK had the ability to
defend itself and to attack Zagreb, Peter Galbraith, 25 Apr 2006, T. 3814-3815.
987 Peter Galbraith, 25 Apr 2006, T. 3759.
988 Ex. 90, p. 6.
989 Ex. 91, p. 6; Reynaud Theunens, 27 Jan 2006, T. 827. In this article, Milan eleketi} refers to Milan Marti} as “my
supreme commander”, Ex. 91, p. 4.
Case No. IT-95-11-T 119 12 June 2007
319. On 3 May 1995, Milan Marti} stated:
As a counter measure to what Tudjman did to you here, we have shelled all their cities: Sisak
several times and Karlovac, Zagreb yesterday and today. This was done for you. … Today, an
ultimatum followed if they continue to attack our besieged forces, we will continue to attack
Zagreb and destroy their cities.990
In a conversation on 3 May 1995 between Slobodan Milo{evi} and Borisav Mikeli}, the Prime
Minister of the RSK, Slobodan Milo{evi} said that Milan Marti} was “boasting about having
shelled Zagreb.”991
320. In a radio interview on 5 May 1995, Milan Marti stated:
That order was given by me, personally, as a retaliation to Franjo Tuman and his staff for the
order he had given to commit aggression against the Western Slavonia ….992
At a meeting in Knin on 5 May 1995 with UN Special Envoy, Yasushi Akashi, Milan Marti} stated
in response to Yasushi Akashi’s condemnation of the rocket attacks on Zagreb that “had I not
ordered the rocket attacks … they would have continued to bomb our cities”.993 Milan Marti
threatened to resume the shelling of Zagreb if their conditions were not met, and spoke of “massive
rocket attacks on Zagreb which would leave 100,000 people dead”.994 In an interview published on
16 May 1995, Milan Marti is reported as saying that he felt justified in ordering the rocket attacks
because he was aiming at military installations.995 Milan Marti also appeared on television
admitting to having ordered the shelling.996
321. The RSK Commission charged with determining responsibility for the fall of Western
Slavonia found that:
the course of events in Western Slavonia required of the SVK Main Staff to intervene in order to
provide assistance to the 18th Corps … however, no opinions were sought from the commanding
officers of the SVK Main Staff. Decisions were made by the Commander and the President and
stances and orders were given on the telephone (there are no written orders).997
990 Ex. 388; See also Branko Lazarevi}, 15 Jun 2006, T. 5692-5693.
991 Ex. 233, p. 6, Transcript of intercepted telephone conversation between Slobodan Milo{evi} and Borisav Mikeli}.
See also Milan Babi}, 21 Feb 2006, T. 1666-1668.
992 Ex. 389. In an article in Agence France Presse published on 6 May 1995, Milan Marti is reported as saying “I
personally gave the order to bombard Zagreb as a response to (Croatian President) Franjo Tuman and the Croatian
leadership behind the aggression on Western Slavonia and crimes on civilians”, Ex. 1001. See also Ex. 98.
993 Ex. 97, para. 13. As regards the Defence’s argument concerning reprisals, see infra section IV B 4 (c).
994 Ex. 97, paras 4, 15.
995 Ex. 390. See infra section IV B 4 (c), concerning the Defence’s argument on reprisals. See also Patrick Barriot, 9
Nov 2006, T. 10780-10785; Witness MM-117, 17 Oct 2006, T. 9599-9600. See however Peter Galbraith, 25 Apr 2006,
T. 3778.
996 Branko Lazarevi}, 15 Jun 2006, T. 5690-5691; Milan Babi}, 21 Feb 2006, T. 1661. Peter Galbraith testified that in
media statements Milan Marti “took credit” for this first day of attacks, Peter Galbraith, 25 Apr 2006, T. 3774.
997 Ex. 100, para. 9.
Case No. IT-95-11-T 120 12 June 2007
Rade Ra{eta, Chief of Security of the SVK Main Staff, confirmed that members of the Main Staff
were not consulted about the decision to shell Zagreb.998 The RSK Fact-Finding Commission on the
Causes and Manner of the Fall of Western Slavonia found that among those responsible for the fall
of Western Slavonia was “President of the RSK, Milan Marti, for exceeding his authority as set by
the constitution by blocking and preventing the work of the Supreme Defence Council”.999
322. Milan ^eleketi} resigned on 15 May 1995, giving as a reason having failed to keep his
promise “that not one milimetre of the territory of the RSK” would be lost.1000 Peter Galbraith
testified that following the shelling, there was a change in the SVK and that Milan ^eleketi} was
replaced. He believed that this was as a result of Slobodan Milo{evi}’s instructions.1001
H. Acts of persecution carried out against non-Serbs in the SAO Krajina and the RSK
323. The Trial Chamber has been presented with considerable evidence that acts of
discrimination and intimidation were carried out against the non-Serb population in the SAO
Krajina and the RSK during the Indictment period. Count 1 of the Indictment charges Milan Marti
with a wide range of acts of persecution. Many of these are also charged as separate counts in the
Indictment and have been dealt with above. In addition, however, the Trial Chamber notes below
the following additional evidence.
1. 1991
324. There is evidence of Croats being killed in 1991,1002 having their property stolen,1003 having
their houses burned,1004 that Croat villages and towns were destroyed, including churches and
religious buildings, 1005 and that Croats were arbitrarily dismissed from their jobs.1006
998 Rade Ra{eta, 2 May 2006, T. 3943-3944, commenting on Ex. 100. General eleketi tried to transfer the order over
the phone, however the decision “should have been collectively taken. We should all have been familiar with the order.
In this case, this went through the closest associates of the commander.” Ibid.
999 Ex. 99, p. 21.
1000 Ex. 101. The Trial Chamber notes that in his letter of resignation, General eleketi specifically refers to “our
doctrine of reprisal at the chosen vital targets of the combatant”; Rade Ra{eta, 2 May 2006, T. 3944-3945. Rade Ra{eta
was present at a meeting of the Supreme Defence Council when General Milan ^eleketi} informed of his resignation
and confirmed the reason for the resignation, Rade Ra{eta, 2 May 2006, T. 3930, 3 May 2006, T. 3973.
1001 Peter Galbraith, 25 Apr 2006, T. 3757.
1002 Ex. 922, reporting inter alia that between 5 and 14 August 1991 “Serbian paramilitary groups” reportedly killed
five Croats from the village of Lovinac (Gracac), p. 3, and on 16 August 1991 four Croatian men were reported to have
been killed when they returned to the village of Peki (Vrginmost) to feed their livestock; the village had been occupied
by “Serbian forces”. On 13 October 1991, 13 people were reported to have been killed in [iroka Kula (Gospi}) by a
mob led by a “Serbian police officer” and that the “Serbian leader of the local police” ordered the remaining Croats to
assemble for evacuation, when they assembled “Serbian paramilitary groups” began looting the homes and shot at the
villagers. The bodies of those who were killed were thrown into their homes which had been set on fire, p. 4-5. On 16
and 17 December 1991, five civilians were reportedly killed in the village of Jasenice (Obrovac) pp 10-11. Ex. 922,
Helsinki Watch Report sent to Slobodan Milo{evi} and General Blagoje Adži}, dated 21 January 1992; Marica
Vukovi}, 22 Mar 2006, T. 2452-2453 testifying that around a hundred people were killed in the 10 or 15 villages
around Vukovi}i. See also Ex. 133, an order from the Glina TO Staff dated 4 October 1991 ordering TO units “when
Case No. IT-95-11-T 121 12 June 2007
325. A MUP report of 12 December 1991, signed by Milan Marti, reported on the collection of
trucks, passenger vehicles and household items “as war booty from citizens in the war zones and
stored in collection centres”.1007
326. Following the fall of Slunj in November 1991, Marinko Mudri} reported seeing many
burned houses, particularly in Rakovica and Slunj, including a department store, restaurants, an SJB
and a hotel, as well as many private houses. He saw “uniformed men and members of the Krajina
police in Slunj” as well as “Pei and Željko ‘Buba’ Mudri” stealing cars.1008 Police as well as
Serb civilians were engaged in looting in the villages of Rakovica, Slunj, Saborsko and
Poljanak.1009 Attacks on Modru{ki Sabljaki and Medvedi and Plivelii were led by “Peji} and
Zelko ‘Buba’ Mudri, accompanied by some 30 of Marti}’s men”, who stole tractors and
plundered houses before setting them on fire.1010 On 21 November 1991, in Dabar a uniformed
group led by Predrag Baklaji} killed Stipe Brajkovi}, raided Croat houses and stole property.1011
2. 1992
327. During 1992 on the territory of the RSK, there was a continuation of incidents of
killings,1012 harassment,1013 robbery, beatings, burning of houses,1014 theft,1015 and destruction of
churches1016 carried out against the non-Serb population.1017
mopping up the terrain in Glina, to spare Pajo Buba{ and his wife, who is a Serb, and their house: they have been
verified as loyal people.”
1003 Ex. 984, p. 19 reports that there was widespread looting around Drni{ by ‘reservists in JNA uniforms’. Borislav
Ðuki} testified to requesting measures from the 9th Corps command in Knin to be taken against the looters and that
seized looted property was sent to the JNA Knin logistics base, Borislav Ðuki}, 20 Oct 2006, T. 9890. Witness MM-
078 testified that both the army and the police were involved in the looting and that the police would let the trucks with
looted goods through check-points, Witness MM-078, 25 May 2006, T. 4533.
1004 Marica Vukovi}, 22 Mar 2006, T. 2411, 2442 (testifying that on 28 August 1991, the village of Rastovaca (Nova
Gradiska) was set on fire by “Serbs”). Marko Vukovi} testified that after the attack on Grabovac some houses and a
motel were torched and burnt, as well as the motel, Marko Vukovi}, 24 Mar 2006, T. 2634.
1005 Witness MM-078, 24 May 2006, T. 4450. During the attack in September 1991 the centre of Drni{ was
“completely” destroyed, Ex. 984, para. 5.3, p. 16; Borislav Ðuki}, 20 Oct 2006, T. 9896. Regarding damage to houses
and churches and looting in Kijevo, see Witness MM-078, 24 May 2006, T. 4434-4435. Borislav Ðuki} testified that
there were no JNA units in Kijevo on 27 August 1991, Borislav Ðuki}, 20 Oct 2006, T. 9885-9886; Witness MM-078,
24 May 2006, T. 4444, T. 4527-4528; Borislav Ðuki}, 19 Oct 2006, T. 9768-9769; Ex. 106, Report of Ratko Mladi,
JNA 9th Corps, to General Staff of the SFRY concerning the attack on Kijevo, dated 4 October 1991; Milan Babi, 17
Feb 2006, T. 1559-1560.
1006 Ex. 895, pp 22-24.
1007 Ex. 518, p. 4, signed by Milan Marti} as Minister of the Interior.
1008 Ex. 507, Official Note on Saborsko Operation, dated 7 April 1992, p. 5. One of the cars they stole was afterwards in
use by the Pla{ki SJB, ibid.
1009 Witness MM-037, 29 Mar 2006, T. 2821-2822.
1010 Ex. 507, Official Note on Saborsko Operation, dated 7 April 1992, p. 6.
1011 Ex. 561, Report of MUP concerning the activities of Predrag Baklaji}, dated 14 July 1993. See also Ex. 43, a
request of the commander of the 2nd Lika TO Brigade to Milan Marti to disband the unit of Predrag Baklaji, which
had previously been trained in Golubi, because it was engaged in looting in November 1991 in Vrhovine near Dabar.
1012 On 18 January 1992, the engi family were killed in their house in Ervenik Village, Knin municipality by three
members of the TO. The same three perpetrators also set fire to houses, sheds and barns in the village, Ex. 974; see also
Witness MM-117, 17 Oct 2006, T. 9565, T. 9559-9560. Ex. 732. Ex. 75, dated 28 September 1992. Ex. 737, reporting
Case No. IT-95-11-T 122 12 June 2007
3. 1993-1995
328. Throughout 1993, there were further reports of killings,1018 intimidation,1019 and theft.1020
By 1995, several Croat villages had been attacked and destroyed, including Rakovica,1021 Poljanak,
Kuselj, Saborsko, Korana, Rastovaca, Celiste, Smoljanac, Dreznik, Rakovac, Lipovaca,
Vaganac,1022 Hrvatska Dubica1023 and Medvi|a.1024
I. The political objective of the Serb leadership
329. The President of Serbia, Slobodan Milo{evi}, publicly supported the preservation of
Yugoslavia as a federation of which, inter alia, the SAO Krajina would form a part.1025 However,
that in Slunj a Croat was beaten to death and his father beaten into a coma by three persons in local “Milicija” uniforms,
John McElligott, 26 May 2006, T. 4606-4607. See also Ex. 739; Ex. 732.
1013 Ex. 763, reporting on “a disturbing pattern of abuse, harassment and discriminatory treatment of Croats particularly
in 7 villages south of Glina town” as well as murders, destruction of houses and terrorising of residents by “roaming
gangsters”. Also reporting on discriminatory distribution of humanitarian aid by the “local red cross” and that buses
refused to stop at bus stops. See also Charles Kirudja, 31 May 2006, T. 4885-4886; Ex. 739; Ex. 728.
1014 Ex. 732, UNCIVPOL situation report for Sector South, dated 29 May 1992; John McElligott, 26 May 2006, T.
4579, T. 4606-4607; Ex. 728; Ex. 736.
1015 Ex. 733, reporting that local police officers wearing uniforms with “Serbian Krajina” or “policemen” based in the
Vrlika Sinj area were consistently stealing from elderly Croatian people. See also Ex. 728.
1016 Ex. 735, dated 2 October 1992, reporting of the destruction by explosives of St Anna’s Church in Zvjerinac, which
is part of the village of Kosovo, south of Knin, on 1 October. See also John McElligott, 26 May 2006, T. 4601-4602,
4606-4607. Ex. 737, UNCIVPOL daily situation report for 6 and 7 November 1992, dated 8 November 1992.
1017 See also Ex. 75, dated 28 September 1992. UNCIVPOL’s Report for October 1992 lists numerous incidents of
killings, thefts, destruction and looting, Ex. 736. A United Nations Report on the Human Rights situation in the former
Yugoslavia, dated 17 November 1992, reports from Sector South that United Nations staff were collecting evidence of
murders, robberies, looting and other forms of criminal violence “often related to ethnic cleansing”, Ex. 865, United
Nations report on the situation of Human Rights in the territory of the former Yugoslavia dated 17 November 1992,
paras 78-81. See also Ex. 728; Witness MM-117, 16 Oct 2006, T. 9472-9473, testifying that according to the Ministry
of the Interior in 1992 there were 6,000 criminal reports which included looting and to a great extent that Croats were
the victims of these crimes. Ex. 864, Further Report by the Secretary-General of the United Nations to the Security
Council pursuant to UN resolution 743, dated 24 November 1992. Ex. 727. Ex. 726, Reporting on 497 crimes against
Croats only in Sector South between August 1992 and May 1993. See also John McElligott, 26 May 2006, T. 4616-
4617, 30 May 2006, T. 4731-4732.
1018 See Ex. 741. Ex. 726, Reporting on 497 crimes against Croats only in Sector South between August 1992 and May
1993; John McElligott, 26 May 2006, T. 4616-4617, 30 May 2006, T. 4731-4732. UNCIVPOL reported that the
Benkovac police had reported between 11 and 17 Croats murdered and one woman raped “in the previous week”, Ex.
729, Daily Situation Report from UNCIVPOL HQ Sector South, dated 22 February 1993. Concerning evidence of rape,
see also Marica Vukovi}, 22 Mar 2006, T. 2453-2454. Ex. 743, reporting on the killing of an elderly Croat woman in
Luka-Drage. Ex. 744, reporting on robbery and assault of Ivica Begi} aged 69 by four men in “military uniforms”,
shooting of Kata Begi} and murder of Ana Vracar, all being Croats living in Podlapaa, Titova Korenica on 12 July
1993, and the shooting of Milka Bilusic on 16 Jun 1993 in Ljuboti} by four men “dressed in uniforms of soldiers”, as
well as the beating and murder of Marija Sari} from Lukar Drage by “Serbian soldiers” on 7 June 1991. See also MM-
117, 13 Oct 2006, T. 9358.
1019 See also Ex. 729, Ex. 743, reporting that “Captain Dragan’s soldiers” harassed an elderly Croat near Bru{ka.
1020 Ex. 743, UNCIVPOL Report for Sector South for June and July 1993, dated July 1993.
1021 Vlado Vukovi}, 27 Mar 2006, T. 2675-2676.
1022 Marica Vukovi}, 22 Mar 2006, T. 2451. See also Ex. 1042, Tab 2; Ex. 1043, Tab 2, DVD 2, p. 17; Ex. 1044.
1023 Josip Josipovi}, 6 Apr 2006, T. 3325-3326.
1024 Stanko Ersti}, Ex. 392, T. 24974.
1025 Ex. 200; Ex. 201; Ex. 202; Ex. 979. See also Milan Babi}, 16 Feb 2006, T. 1415-1416, (testifying that Slobodan
Miloševi endorsed a “firm type of federation” along with the preservation of the right of self-determination of people
who were in majority in an area), T. 1488-1489, 15 Feb 2006, T. 1384-1385, 2 Mar 2006, T. 1781, 3 Mar 2006, T.
1925; Lazar Macura, 14 Sep 2006, T. 8326-8327. In this respect, the Trial Chamber recalls the evidence concerning the
referendum held on 12 May 1991, see supra para. 134.
Case No. IT-95-11-T 123 12 June 2007
Slobodan Miloševi covertly intended the creation of a Serb state.1026 Milan Babi testified that
Slobodan Miloševi intended the creation of such a Serb state through the establishment of
paramilitary forces and the provocation of incidents in order to allow for JNA intervention, initially
with the aim to separate the warring parties but subsequently in order to secure territories envisaged
to be part of a future Serb state.1027 In Milan Babi’s view, Slobodan Milo{evi} advocated this
political objective from the summer of 1990 until the end of 1991.1028
330. Through the summer of 1991, the objective of the JNA was to protect the Serbs against
attacks by Croatian armed formations and prevent occupation of cities under Serb control.1029 At the
end of the summer 1991 and coinciding with the attack on Kijevo, the JNA became an active
participant in Croatia on the side of the SAO Krajina. According to the SFRY Federal Secretary for
Defence, General Veljko Kadijevi}, the task of the JNA became one of protecting “the Serb people
in Croatia in such a way that all regions with a majority Serb population would be completely freed
from the presence of the Croatian army and the Croatian authorities”.1030 Veljko Kadijevi also
noted that among ”the principal ideas” behind the deployment of the JNA during the second phase
was “full co-ordination with Serb insurgents in the Serbian Krajina”.1031
331. On 3 October 1991, Veljko Kadijevi} stated that the objective of the JNA in the conflict was
“to restore control in crisis areas, to protect the Serbian population from persecution and
annihilation”.1032 On 12 October 1991, General Blagoje Adži, Chief of the General Staff of the
JNA, stated that the main task of the JNA was to prevent “the spread of interethnic conflicts and the
recurrence of genocide against the Serbian people in Croatia.”1033 On 25 October 1991, at a meeting
of, among others, Slobodan Miloševi, Veljko Kadijevi and Blagoje Adži, Slobodan Miloševi
stated that “we have helped the Serbs in Croatia abundantly and we will continue to do so until
the end”.1034
1026 Ex. 201; Milan Babi}, 16 Feb 2006, T. 1415-1416, 21 Feb 2006, T. 1672; Witness MM-117, 16 Oct 2006, T. 9491-
9497; Mile Daki}, 25 Oct 2006, T. 10025-10026; Ex. 1039, Group 13, pp 4-8.
1027 Milan Babi}, 16 Feb 2006, T. 1416, 17 Feb 2006, T. 1572-1574.
1028 Milan Babi}, 2 Mar 2006, T. 1806.
1029 Milan Babi}, 17 Feb 2006, T. 1503-1506; Ex. 476, ERN: 03023105, noting that at a meeting on 4 April 1991,
Slobodan Miloševi, Veljko Kadijevi, Blagoje Adži and Borisav Jovi agreed that “the military will not allow the
Croatian police to occupy Knin and other Serb cities which are now under Serb control”. Slobodan Peri}, a lieutenant
colonel in the 5th JNA Military District in Zagreb, testified that at his “operational level” he did not have the impression
that the strategic goal of the JNA was to prepare the Serbs for a war against Croatia or that the JNA was “tasked with
preparing the Serb people for their own defence”, Slobodan Peri, 7 Sep 2006, T. 7913. However, the Trial Chamber is
of the view that at his operational level, Slobodan Peri} would not have been aware of the specific strategic goal. See
also Ex. 24, p. 68, ERN: 00362704; Ex. 26.
1030 Ex. 24, p. 73, ERN: 00362709. See also Ex. 27, p. 3.
1031 Ex. 24, pp 73-74, 77, ERN: 00362709-00362710, 00362713. See also Ex. 214; Ex. 477; Ex. 973.
1032 Ex. 25, p. 3.
1033 Ex. 26.
1034 Ex. 476, p. 358, ERN: 03023174.
Case No. IT-95-11-T 124 12 June 2007
332. Several witnesses explained that the JNA’s role changed because Croatia considered the
JNA a hostile army and in September 1991 had ordered the ZNG and police to block and seize JNA
facilities across Croatia in order to immobilise the JNA.1035 According to some witnesses, the JNA
therefore intervened only to defend itself.1036
333. The SAO Krajina, and subsequently the RSK, leadership endorsed Slobodan Miloševi’s
vision to create a Serb-dominated state.1037 In early July 1991, Milan Marti stated that the Milicija
Krajine were “defending Serbian land and the Serbs’ ethnic area”.1038 Similarly, on 19 August 1991
Milan Marti stated that he would accept no autonomy and that “the territories controlled by the
police and the Territorial Defence of the Serbian Autonomous Region of Krajina will forever
remain Serbian”.1039 Milan Babi embraced the same view, stating on 5 September 1991 that “the
Serbs are recognised in every part of Yugoslav State territory as a nation, which they will continue
to be within the part of the state that remains as a whole following the secession of the former
Socialist Republic of Croatia’s real territory and all Slovenia.”1040 On 12 December 1991, Milan
Marti stated that “nobody … has the right to deny the Serbian people the right to live in their
own country”.1041
334. On 14 May 1992, Mile Pašpalj, the President of the RSK Parliament, expressed the need to
establish “the state of Serbian Krajina” in order to survive.1042 On 3 July 1992, Milan Marti
criticised the presidents of the Banija and Kordun municipal assemblies for their decision to form
autonomous districts because the RSK had “paid in blood the corridor we won and linked up
Serbian territories”.1043 At a meeting on 14 June 1993 with Cedric Thornberry, the UNPROFOR
Director of Civil Affairs, Milan Marti} stated that the “joint life of Croats and Serbs in one State is
1035 Milan Babi}, 17 Feb 2006, T. 1563, 3 Mar 2006, T. 1887, 1898; Radoslav Maksi, 7 Feb 2006, T. 1222; Slobodan
Peri}, 6 Sep 2006, T. 7871, 7 Sep 2006, T. 7922; Milan Dragi{i}, 19 Sep 2006, T. 8657; Borislav Ðuki}, 18 Oct 2006,
T. 9694-9695, 20 Oct 2006, T. 9846-9847, 9850; Imra Agoti}, Ex. 398, T. 23266; Ex. 238, p. 110.
1036 Slobodan Peri}, 7 Sep 2006, T. 7923-7924, 7926-7928; Milan Dragi{i}, 19 Sep 2006, T. 8601.
1037 Veljko Džakula, 16 Jan 2006, T. 404-405, testifying that during 1991 and 1992, Milan Marti worked for the
“recognition and joining the association of Serb lands, Republika Srpska, and Serbia”; Milan Babi}, 16 Feb 2006, T.
1476-1477, 2 Mar 2006, T. 1830-1832; Ante Marinovi, 23 Mar 2006, T. 2474; Witness MM-078, 25 May 2006, T.
4498; Witness MM-117, 16 Oct 2006, T. 9491-9496; Mile Daki}, 25 Oct 2006, T. 10025; Ex. 201, p. 3; Ex. 213; Ex.
474, p. 4; Ex. 912. According to the Constitutional Law of the SAO Krajina “the SAO Krajina shall represent a form
of political and territorial autonomy within the Federative Yugoslavia ….”, see Ex. 151, Art. 1. Moreover, the header
or the stamp of several official SAO Krajina documents in evidence show that the SAO Krajina was considered to form
part of the SFRY, see e.g. Ex. 34; Ex. 35; Ex. 3; Ex. 42; Ex. 188; Ex. 190; Ex. 467. The Law on Defence of the RSK,
adopted 23 March 1992, also provided that the RSK armed forces were a “composite part” of the armed forces of the
SFRY, Ex. 6, p. 123.
1038 Ex. 498, p. 4. See also Ex. 205; Ex. 973; Ex. 975; Milan Babi}, 17 Feb 2006, T. 1518; Witness MM-117, 17 Oct
2006, T. 9586-9587.
1039 Ex. 215.
1040 Ex. 236, p. 5.
1041 Ex. 518, p. 3.
1042 Ex. 750, p. 2. See also Slobodan Jarevi}, 14 Jul 2006, T. 6292-6293; Ex. 861; Ex. 862.
1043 Ex. 77, p. 3. See also Slobodan Jarevi, 13 Jul 2006, T. 6192-6194.
Case No. IT-95-11-T 125 12 June 2007
impossible because of genocide politic sic of Croatia. We want to separate in 2 states … I am
convinced that we will be good neighbors as separate states.”1044
335. Efforts to unify the Croatian Krajina and the Bosnian Krajina continued throughout 1992
until 1995. The evidence shows that the RSK leadership sought an alliance, and eventually
unification, with the RS in BiH and that Milan Marti was in favour of such unification.1045 A letter
dated 3 April 1993 from, inter alia, Milan Marti} as Minister of the Interior to the Assembly of the
RS, written on behalf of “the Serbs from the RSK”, advocates a joinder of the “two Serbian states
as the first stage in the establishment of a state of all Serbs”.1046 Moreover, in this regard, the Trial
Chamber recalls the evidence concerning operation Koridor 92.1047
336. On 21 January 1994, during the election campaign for the RSK presidential elections, Milan
Marti stated that he would “speed up the process of unification” and “pass on the baton to our all
Serbian leader Slobodan Milo{evi}.”1048
J. Milan Marti’s knowledge of and reactions to crimes committed
337. Several witnesses testified that in his capacity as Minster of the Interior, Milan Marti was
de jure and de facto in control of the SAO Krajina and RSK police from 1991 through 1993.1049 As
Minister of the Interior, Milan Marti was kept informed concerning the activities of the SJBs and
maintained “excellent communications” with the units subordinated to the MUP.1050 The evidence
shows that information concerning military activities during the autumn of 1991 was sent to Milan
Marti.1051 Moreover, information regarding crimes committed in the SAO Krajina and the RSK
1044 Ex. 965, p. 5.
1045 Veljko Džakula, 17 Jan 2006, T. 436; Rade Rašeta, 2 May 2006, T. 3925-3926, T. 3961-3962, testifying that in the
summer of 1994 Radovan Karad‘i} met in Knin with the RSK leadership about the ways in which the RSK and the RS
could come closer on political and military levels in view of possible future unification; Ex. 6, p. 168 describing the
Prijedor Declaration of 31 October 1992; Ex. 110, paras 4-5; Ex. 475; Ex. 656, p. 3; Ex. 660; Ex. 868, p. 3.
1046 Ex. 976. The other signatories of the letter are the RSK General Staff Commander Mile Novakovi, the Minister of
Defence Stojan Španovi, and the Chief of Staff of the RSK General Staff Borislav Ðuki.
1047 See supra paras 154, 160.
1048 Ex. 14, p. 1; Ex. 660. See also Milan Babi, 16 Feb 2006, T. 1475-1476; Ex. 504; Ex. 868, p. 3, in which, in July
1994, Goran Had‘i}, President of the RSK, stated that: “our aim is well known, and this is a unified Serbian state”.
1049 Veljko Džakula, 16 Jan 2006, T. 400-403, also testifying that Milan Marti} was “a person who had authority, who
was obeyed, whose orders were complied with” and that “if someone failed to comply with an order of his, he could be
quite rough. He could be angry. He could threaten that they would be replaced”; Stevo Plejo, 20 Sep 2006, T. 8702-
8703, 21 Sep 2006, T. 8797-8798, see also Aernout van Lynden, 2 Jun 2006, T. 5017-5018; Nikola Medakovi, 9 Oct
2006, T. 8965-8966, 8968; Mile Daki, 25 Oct 2006, T. 10023. See also Milan Babi, 15 Feb 2006, T. 1407, Ex. 1028,
ERN: L0079770, p. 24; Stevo Plejo, 20 Sep 2006, T. 8703; Ex. 44. On 23 August 1993, Milan Marti} suspended the
work of the RSK SDB, pending restructuring of the SDB, because “the political and security situation has deteriorated
and the work of certain ministry departments has been blocked”, Ex. 525.
1050 Radoslav Maksi}, 6 Feb 2006, T. 1177-1178. See also Witness MM-003, 8 Mar 2006, T. 1979-1981, testifying
about meetings with chiefs of SJBs.
1051 Ex. 957, dated 1 to 2 September 1991, provides that information had been received from, inter alia, Kistanje,
Plaški, Graac, Glina, Kostajnica, and Dubica Štica, concerning fighting and “mopping up” activities. It is unclear in
which capacity Milan Marti received this information, Minister of the Interior or Deputy Commander of the TO. See
also Radoslav Maksi, 6 Feb 2006, T. 1177, testifying that the TO sent reports to the MUP.
Case No. IT-95-11-T 126 12 June 2007
was regularly reported to Milan Marti. In particular, police inspectors, who carried out
investigations into crimes on the ground, reported to the MUP and Milan Marti during the time
period of 1991 to 1995 pursuant to reporting regulations.1052 Defence witness Slobodan Jarevi,
who was the Foreign Minister of the RSK from October 1992 until April 1994, testified that crimes
committed in the territory of the RSK, including those charged in the Indictment against Milan
Marti, were discussed at government sessions.1053 The evidence also shows that there were
numerous contacts between UNPROFOR and the RSK government, including the SJBs, regarding
crimes committed on the ground by members of the MUP.1054
338. There is evidence that Milan Marti stressed that the police should act in accordance with
the law and that the police should never differentiate between citizens based on ethnic political,
religious, or other affiliation.1055 Moreover, the evidence shows that Milan Marti in some cases
took measures to address the criminal behaviour of members of the MUP and of other units.1056 At
some point during 1991, there was an incident where Croat prisoners were mistreated by “a
1052 Witness MM-096, 25 Aug 2006, T. 7188-7189. Pursuant to an SFRY Regulation of 1974, the SJBs had a reporting
obligation to the SUP and to the MUP, and these obligations were complied with. On 20 May 1992, this regulation was
superseded by the “Mandatory Instruction on Implementation and Information in Internal Affairs Organs in the
Republic of Serbian Krajina”, which was issued by Milan Marti in his capacity as Minister of the Interior, Ex. 893,
Witness MM-096, 23 Aug 2006, T. 6971-6974. Pursuant to this very detailed Instruction (item 9), “the internal affairs
organ shall urgently inform the MUP about all important incidents and trends, and measures undertaken”. Moreover,
the MUP’s “permanent duty service” was under an obligation to “compile daily information about incidents, trends and
measures undertaken” (item 11), regarding the permanent duty service, see also Witness MM-096, 25 Aug 2006, T.
7172-7173. If a report contained information concerning two or more casualties, the SJB would not only report to the
SUP but would immediately inform also the MUP in Knin, Witness MM-096, 25 Aug 2006, T. 7171-7172.
1053 Slobodan Jarevi, 13 Jul 2006, T. 6209-6210, also testifying that in his capacity as Foreign Minister, he sent a
letter to the UN Security Council wherein he attempted to explain the situation attending those crimes. Moreover,
Slobodan Jarevi testified that the RSK government “did not take any steps against the members of any other nation or
ethnic group”, Slobodan Jarevi, 13 Jul 2006, T. 6212. In his view, it was difficult for the RSK government to protect
the Croats who remained in the RSK because many of the crimes were committed out of revenge for losing family
members, Slobodan Jarevi, 13 Jul 2006, T. 6209.
1054 Witness MM-096, 25 Aug 2006, T. 7185. On 24 August 1992, Cedric Thornberry, the Director for Civil Affairs of
UNPROFOR, sent a letter to the RSK Ilija Priji} concerning crimes in the Vrlika area committed by the police,
requesting the policemen who were engaging in such crimes be removed from the force, Ex. 734. See also Ex. 733; Ex.
735; Ex. 736; Ex. 737; Ex. 739; Ex. 740. Milan Marti} issued instructions regulating in detail the mode of cooperation
with UNPROFOR and UNCIVPOL, according to which all organs of the RSK MUP should be at the disposal of
UNCIVPOL, which was permitted to observe at the SJBs and to act in response to complaints by RSK citizens, Witness
MM-117, 18 Oct 2006, T. 9647-9649. The Trial Chamber notes that in the Secretary-General’s report of 28 September
1992, it was reported that “the overall failure to cooperate with UNPROFOR has undermined UNPROFOR’s ability to
fulfil its police monitoring functions, Ex. 75, para. 17 (see also para. 18). Charles Kirudja testified about interference by
RSK authorities with UNPROFOR’s mission, Charles Kirudja, 31 May 2006, T. 4828 (see also T. 4832-4833 regarding
arrests of UNPROFOR members). See also Ex. 757.
1055 Radoslav Maksi, 7 Feb 2006, T. 1231; Witness MM-096, 21 Aug 2006, T. 6845-6846; Witness MM-117, 13 Oct
2006, T. 9339, 9346, 17 Oct 2006, T. 9580-9582. There is evidence that in August 1991, Milan Marti was aware that
prisoners were taken from Kijevo to the Knin SJB. On one occasion he told the police transferring prisoners to “please
make sure that none of the people are harmed or killed”. When asked why, by police officer Bozo Ceko, Milan Marti
answered “these people have to be exchanged. They are prisoners”, Dragan Kne‘evi}, 3 Nov 2006, T. 10674. The Trial
Chamber also notes that some measures were taken by the JNA 9th Corps to prevent crimes, including to carry out
investigations by military prosecutors, Borislav Ðuki}, 23 Oct 2006, T. 9920-9921. See also Ex. 27; Ex. 965, p. 5.
1056 Witness MM-003, 8 Mar 2006, T. 2025, testifying that Milan Marti} was informed that looting was perpetrated by
the police in areas where fighting had occurred and that he disapproved of this and changed the commanders of the
police in the villages “where there were major problems and where he had indications of things like that going on”.
Case No. IT-95-11-T 127 12 June 2007
commanding officer” at the training camp in Golubi wherefore Captain Dragan Vasiljkovi
requested Milan Marti take measures.1057 Milan Marti expelled the commanding officer, but
eventually this person was allowed to stay on at Golubi.1058 In November 1991, an attempt was
made by Veljko Raunovi} and Mile Mi{ljenovi} to secede, inter alia, Hrvatska Dubica from the
Hrvatska Kostajnica municipality and annex it to Bosanska Dubica.1059 The evidence shows that
Milan Marti visited the area after the president of the Hrvatska Kostajnica municipality had
requested assistance and that Milan Marti} disbanded Veljko Raunovi}’s police unit and replaced
it with a military police unit of the JNA Banja Luka Corps.1060 In January 1992, SJBs were set up in
Hrvatska Kostajnica and Šaš, after which some of the renegade groups were imprisoned or entered
the legal formations of the SAO Krajina.1061 However, the Trial Chamber also heard evidence that
after a certain period the JNA unit was expelled and the previously disbanded unit was reinstalled.
1062
339. On 19 February 1992, Milan Marti} ordered the disbandment of an RSK MUP Special
Purpose unit commanded by Predrag Baklaji} due to information that this unit had been involved in
criminal activities, including several murders, and incidents of robbery, theft and destruction.1063
This disbandment was ultimately not carried through and the unit continued with criminal activities
in 1992.1064 On 1 April 1993, Milan Marti} requested the MUP of Serbia to provide 20-30
inspectors to deal with homicides and property offences which were “rapidly increasing recently in
the RSK”.1065 On 7 September 1993, Milan Marti} ordered the arrest of members of certain
paramilitary groups, who were suspected of committing organised crimes.1066 There is evidence that
the unit Arkan’s Tigers, under the command of Željko “Arkan” Raznjatovi, left the territory of the
RSK in 1993 after an order had been issued by the SVK commander Mile Novakovi and Milan
1057 Stevo Plejo, 20 Sep 2006, T. 8702.
1058 Stevo Plejo, 20 Sep 2006, T. 8702-8703, 21 Sep 2006, T. 8796-8798.
1059 Witness MM-022, 20 Mar 2006, T. 2315-2317, 2352-2353.
1060 Witness MM-022, 20 Mar 2006, T. 2316-2318, 2352-2353; Josip Josipovi, 6 Apr 2006, T. 3322; Nikola
Dobrijevi, 10 Nov 2006, T. 10890-10901, 10895-10896. See also Ex. 290, p. 2, stating that the “local Chetniks”,
including Mom~ilo Kova~evi} and Stevo Raun, controlled the area, and were in conflict with “Marti}’s men”; Ex. 600,
indicating that in September 1991 Stevan Borojevi} requested that he and his unit remain under the command of Milan
Marti}; Ex. 601, indicating that on 13 January 1992 Stevan Borojevi} was under the command of Milan Marti}; Ex.
602. See further Nikola Dobrijevi, 13 Nov 2006, T. 10983-10985, 10112-10113.
1061 Nikola Dobrijevi, 10 Nov 2006, T. 10889-10890, 10892-10893, 10896-10897, 13 Nov 2006, T. 10943, 10989.
1062 Josip Josipovi, 6 Apr 2006, T. 3322.
1063 Ex. 43; Ex. 563; Ex. 566, providing that the arrest, in February 1992, of the leaders and several members of this unit
only temporarily stopped its activities and that as a result of “inadequate judicial measures” and a “poor political
situation in Krajina” this unit could resume its criminal activities. See further Ex. 561, which reports on murders in
Dabar of seven civilians; Ex. 560, which provides that the “Minister of the Interior be informed about the content of
this Information, since Baklaji} refers to him as his order issuing authority and the only one he is subordinated to.”
1064 Ex. 563.
1065 Ex. 665.
1066 Ex. 541. See also Witness MM-096, 22 Aug 2006, T. 6919, 25 Aug 2006, T. 7173-7174, testifying that sometime
between 1993 and 1994 Milan Marti} ordered that perpetrators of serious crimes, particularly murders, be arrested.
Case No. IT-95-11-T 128 12 June 2007
Marti as Minister of the Interior.1067 Lastly, there is some evidence that criminal investigations
were carried out and that perpetrators were brought to justice.1068
340. There is no further evidence that measures were taken to address the widespread criminal
activities which the evidence shows occurred in the SAO Krajina and the RSK from 1991 through
1995.1069 Rather, there is evidence which shows the contrary. After the attack on Struga, Captain
Dragan Vasiljkovi} arrested ten members of the TO in Dvor, who were allegedly responsible for
killing several civilians. Subsequently, Milan Marti arrived in Dvor and ordered Captain Dragan
Vasiljkovi} to release the ten men, which he did.1070
341. Rade Rašeta testified that on one occasion Milan Marti} told him that “he could not make
himself hate Croats” and “whoever was saying that he was a nationalist and hated Croats was
wrong”.1071 Witness MM-003 testified that Milan Marti} did not express hatred towards the Croat
population, but rather that “he hated the chequerboard emblem” and that “he hated Tudjman
most of all”.1072 The Trial Chamber heard evidence that during the summer and autumn of 1991
Milan Marti instructed persons involved in humanitarian assistance to treat both Croat and Serb
refugees arriving from Drni{ equally.1073 Slobodan Jarevi testified that Milan Marti
“demonstrated the nobility of his character” by looking after refugees who arrived from BiH in
1994 despite the difficulties that the RSK was facing due to international sanctions.1074 However,
the Trial Chamber notes the evidence concerning the return of Croat refugees, which was a
condition of the Vance Plan and which Milan Marti} was clearly against and in fact obstructed.1075
1067 Witness MM-096, 22 Aug 2006, T. 6921-6922, 6925, 24 Aug 2006, T. 7038-7039. The Trial Chamber notes that
there is no evidence that this unit was suspected of having committed crimes.
1068 Witness MM-117, 13 Oct 2006, T. 9346-9347, 9351, concerning the murder of the engi family in 1992 near
Knin, T. 9392-9393, concerning incidents in 1993, including murders, which may have been motivated by revenge by
Serbs, and that the police identified several perpetrators and filed criminal reports for further judicial proceedings.
Further, in relation to Milan Marti’s authority to take measures, see Ex. 38, Report to the SAO Krajina TO Staff, dated
6 August 1991, providing that Milan Marti issued a cease-fire order due to the visit of the SFRY Vice-President
Branko Kosti; Ex. 40, reporting that Milan Marti issued an order to the Benkovac TO staff on 16 September 1991 resubordinating
TO members of the Benkovac TO to a unit of Lieutenant Colonel Živanovi for lifting the blockade of
the Zemunik airport; Ex. 521; Ex. 602, order of Milan Marti}, dated 26 Nov 1991, that “all persons wearing camouflage
uniforms who are not members of the SAO Krajina police […] have to return the insignia of police members and report
to the recruiting office in Kostajnica in order to join [JNA]”. See also Nikola Dobrijevi, 13 Nov 2006, T. 11013.
1069 See supra section III H. In this respect, the Trial Chamber recalls the testimony of Josip Josipovi} that neither
Momilo Kovaevi nor Stevo Raunovi were investigated or prosecuted concerning crimes committed in the
Hrvatska Dubica area, Josip Josipovi}, 7 Apr 2006, T. 3373.
1070 Aernout van Lynden, 2 Jun 2006, T. 5017-5019, 5038-5039; Ex. 587; Ex. 588. See also Ex. 1042, Tab 2; Ex. 1043,
Tab 2, DVD 2, pp 8-11; Ex. 1044.
1071 Rade Rašeta, 2 May 2006, T. 3901. See also Charles Kirudja, 1 Jun 2006, T. 4961; Witness MM-096, 21 Aug 2006,
T. 6846; Witness MM-090, 31 Aug 2006, T. 7482, 7522; Witness MM-117, 13 Oct 2006, T. 9336, 9339; Witness MM-
105, 2 Nov 2006, T. 10623; Ex. 966, p. 1.
1072 Witness MM-003, 9 Mar 2006, T. 2105-2106.
1073 Ljubica Vujani}, 18 Sep 2006, T. 8499-8501. See also Ljubica Vujani}, 18 Sep 2006, T. 8498-8499.
1074 Slobodan Jarevi}, 12 Jul 2006, T. 6172-6173.
1075 See supra para. 138. Milan Babi, 20 Feb 2006, T. 1645-1647, 1651-53, testifying that Milan Marti} never stated
that the right conditions existed for the return of refugees. See also Veljko Džakula, 16 Jan 2006, T. 405, 407, 17 Jan
Case No. IT-95-11-T 129 12 June 2007
342. The evidence shows that Milan Marti actively advocated and pursued the goal of creating
an ethnically Serb state in spite of his awareness of the serious and widespread crimes, which were
being perpetrated against the Croat and other non-Serb civilian population as a result of this policy.
While the Trial Chamber notes the evidence presented above that Milan Marti did not personally
express hatred towards Croats or other non-Serbs, and on one occasion instructed that Serb and
Croat refugees be treated equally, this evidence does not serve to outweigh the substantial evidence
of Milan Marti’s conscious disregard for the fate of the Croat and other non-Serb population and
persistent pursuance of the goal to create a Serb state.
IV. RESPONSIBILITY OF MILAN MARTI
A. Findings on the crimes charged
1. General requirements of Article 3 of the Statute
343. The Defence submitted that an armed rebellion organised by Croatian authorities existed in
the territory of Croatia from 1990 to 1992 “when Yugoslavia de facto ceased to exist”.1076 It is
alleged that this rebellion was aimed at achieving the independence of Croatia. The Defence claims
that the federal authorities of the SFRY in Belgrade, including the Presidency, the federal Defence
Ministry, the SSNO and the JNA lawfully acted with the aim to suppress this armed rebellion.1077
The Defence further claims that the SAO Krajina leadership, the police and the TO had a duty to
comply with the order and instructions of the federal authorities.1078 The Prosecution submits that
an armed conflict existed during the Indictment period and that the SAO Krajina leadership,
including Milan Marti}, directly participated in the armed conflict.1079
2006, T. 410-411; John McElligott, 29 May 2006, T. 4707-4708; Charles Kirudja, 31 May 2006, T. 4881; Ex. 232; Ex.
761, a message concerning the expulsion of 5 Croats from Liko Petrovo Selo, which was copied to Milan Marti but to
which he never replied, Charles Kirudja, 31 May 2006, T. 4879-4881. However, according to Slobodan Jar~evi} Milan
Marti} was of the view that both Serbs and Croats should be allowed to return, Slobodan Jarevi, 14 Jul 2006, T. 6331,
6333. See also Witness MM-105, 2 Nov 2006, T. 10620-10621. The Trial Chamber notes Milan Marti’s reaction to
information received in June 1991 that Croat refugees in Šibenik from the Knin area had been beaten and harassed by
the SAO Krajina police. As for the injuries, Milan Marti said “Well, they can injure themselves, inflict injuries on
themselves and then show this and say that somebody had beaten them” and that Marti}'s Police beat no one without a
reason. Moreover, Milan Marti said that he had “told the refugees that if they wanted to stay they could stay, but
they had to respect the laws of the SAO Krajina”, something which they rejected and therefore left, Witness MM-079,
3 Apr 2006, T. 3112-3113. Lastly, the Trial Chamber notes that on 23 November 1994 Charles Kirudja met with
Slobodan Miloševi} and Milan Marti} in Belgrade during which meeting Milan Marti was not amenable to letting
humanitarian assistance go to the Muslim population in the Biha pocket in BiH according to a plan devised by Charles
Kirudja and Yasushi Akashi. Milan Marti had to be ordered by Slobodan Miloševi to let the assistance go through,
Charles Kirudja, 1 Jun 2006, T. 4897, 4962, 4965; Ex. 765. See also Ex. 85.
1076 Defence Closing Statement, T. 11257-11258; T. 11264-11267
1077 Defence Closing Statement, T. 11262-11268.
1078 Defence Closing Statement, T. 11264-11267. In addition, the Defence submits that during the hostilities a violation
of Article 3 of Additional Protocol II was carried out by foreign states, see ibid. at T. 11260-11262. The Trial Chamber
does not find it necessary to consider this argument.
1079 Prosecution Rebuttal, T. 11375-11378. See also Prosecution Final Trial Brief, paras 356-357.
Case No. IT-95-11-T 130 12 June 2007
344. Armed clashes erupted between Serbs and Croats from April 1991 in the territory of Croatia.
The police and local people from both sides participated in the hostilities. Following these armed
clashes, the JNA intervened to separate the sides by establishing buffer zones. From August 1991,
the hostilities intensified with the direct involvement of the JNA and the Serb forces of the SAO
Krajina. During the summer and autumn of 1991, numerous attacks were carried out on Croat
majority villages by the JNA acting in coordination with the TO and the Milicija Krajine.1080 The
evidence further shows that throughout 1991, the SAO Krajina leadership, including Milan Marti},
played an active role in the conflict. During the conduct of the hostilities, the SAO Krajina
leadership requested and obtained military assistance from Serbia.1081 The leadership participated in
the establishment of a training camp, which was predominantly military in character where
members of the Milicija Krajine were trained. These units subsequently directly participated in the
hostilities.1082 Furthermore, evidence shows that the leadership established the armed forces of the
SAO Krajina, made up of the TO and the Milicija Krajine, and cooperated with the JNA in
organising operations on the ground.1083 During this period, Croatian authorities organised the
Croatian army, inter alia, by forming a special military unit, the ZNG, which was employed in the
hostilities.1084
345. From the end of 1991, several cease-fire agreements and agreements on the withdrawal of
the JNA from Croatia were adopted.1085 In particular, the Trial Chamber notes the adoption on 21
February 1992 of the UN Security Council Resolution 743 implementing the Vance Plan and
establishing UNPROFOR in the UNPAs.1086 However, the peace plan did not end the conflict,
which continued in Croatia and also extended into northern BiH, and which continued through 1995
with several attacks and incursions from both sides.1087
346. The Trial Chamber finds that the crimes which Milan Marti} is charged with were closely
related to the conflict. In this regard, the Trial Chamber notes that the perpetrators of the crimes
included members of the JNA, the TO and the Milicija Krajine, who were involved in the conduct
of hostilities.
1080 See supra section III D.
1081 See supra section III B 2.
1082 See supra section III B 3; section III D.
1083 The Trial Chamber notes that the SAO Krajina leadership had meetings with JNA commanders in order to plan
operations on the ground. See, for example, supra para. 174, referring to a meeting between Milan Marti} and Colonel
Dusan Smiljani}, Chief of Security of the JNA 10th Zagreb Corps in relation to the take-over of the Kostajnica area.
1084 The Trial Chamber notes that ZNG were found in areas such as Kijevo, Hrvatska Dubica, Saborsko and [kabrnja
where attacks were carried out by the JNA and the Serb forces.
1085 See supra para. 138.
1086 See supra para. 150.
1087 See supra paras 153-154, 158, 303-313, 327-328.
Case No. IT-95-11-T 131 12 June 2007
347. The Trial Chamber finds that a state of armed conflict existed in the relevant territories of
Croatia and BiH during the time relevant to the crimes charged in the Indictment. The Defence’s
argument concerning an armed rebellion is therefore dismissed. Moreover, the Trial Chamber finds
that the crimes charged were committed in the context of the armed conflict. Consequently, the
Trial Chamber has jurisdiction over all crimes charged in the Indictment and general requirements
of Article 3 of the Statute have been fully satisfied.
2. General requirements under Article 5 of the Statute
348. The Trial Chamber recalls its finding regarding the existence of an armed conflict and finds
that crimes with which Milan Marti has been charged were linked geographically and temporally
with the armed conflict.
349. From around June 1991 through December 1991, military operations and raids were carried
out against predominantly Croat villages in the SAO Krajina, including by the Milicija Krajine, the
JNA and the TO.1088 The attacked villages included Potkonije, Vrpolje, Glina, Kijevo, Drni{,
Hrvatska Kostajnica, Cerovljani, Hrvatska Dubica, Ba}in, Saborsko, Poljanak, Lipovaa, [kabrnja,
Nadin and Bru{ka. Villagers were left with no choice but to flee. During or immediately after the
attacks, villagers who stayed behind were killed and beaten. Private and public property, including
churches and schools, were destroyed and looted. Hundreds of Croat and other non-Serb civilians
and members of Croatian armed forces and formations were captured during and after the attacks
and were detained in Knin and other locations, where they were subjected to severe
mistreatment.1089 Moreover, grave discriminatory measures were taken against the Croat population
throughout 1991.1090
350. There is evidence that there were unarmed or poorly armed Croatian protection forces in the
villages of Lipova~a, Poljanak and Bru{ka.1091 The Trial Chamber considers that this does not alter
the civilian nature of the attacked population.1092 Croatian armed forces and formations, consisting
of several hundred men, were present in [kabrnja and in Saborsko and fought against the JNA, the
TO and the police forces of the SAO Krajina.1093 However, considering the size of the civilian
population in these areas, the Trial Chamber finds that the presence of Croatian armed forces and
formations in the Škabrnja and Saborsko areas does not affect the civilian character of the attacked
population.
1088 See supra section III D.
1089 See supra section III D; section III E.
1090 See supra paras 324-326.
1091 See supra paras 201, 213, 266. There were ZNG and Croatian police forces in Hrvatska Dubica and the surrounding
villages. However, they withdrew from the villages around 13 September 1991, see supra para. 177.
Case No. IT-95-11-T 132 12 June 2007
351. Acts of violence and intimidation against the Croat and other non-Serb population, including
killings, beatings, robbery, theft, harassment and destruction of houses and Catholic churches, were
prevalent in the RSK during the period between 1992 and 1995, and resulted in an exodus of the
Croat and other non-Serb population from the territory of the RSK.1094 The Trial Chamber also
recalls the evidence regarding operation “Koridor 92”. As a result of this operation, the Posavina
area was devastated, and many civilians, including Croats, were killed.1095 There is also evidence
that in July 1992, the RSK authorities cooperated with the authorities of Bosanski Novi, BiH, in the
displacement of the non-Serb population from Bosanski Novi to Croatia and other countries.1096
352. The Trial Chamber finds that there was a widespread and systematic attack directed against
the Croat and other non-Serb civilian population in the relevant territories of Croatia and BiH
during the time relevant to the crimes charged in the Indictment.
353. The evidence presented establishes beyond reasonable doubt that the perpetrators of the
crimes charged in the Indictment knew about the attack on the civilian population and that their acts
were part thereof.
3. Counts 1, 3 to 4, and 12 to 14 – Persecution, murder, destruction and plunder (Articles 3 and 5)
(a) Hrvatska Dubica1097
354. The Trial Chamber finds that the following 41 persons were detained in the fire station in
Hrvatska Dubica on 20 October 1991 and intentionally killed the following day at Kreane near
Bain: Katarina Alavan~i}, Terezija Alavan~i}, Josip Antolovi}, Marija Batinovi}, Mara ]ori},
Mijo ]ovi}, Marija Deli}, Ana Dikuli}, Ru`a Dikuli}, Sofija Dikuli}, [tjepan Dikuli}, Antun
\uki}, Marija \uki}, Antun \urinovi}, Ana Feri}, Juraj Feri}, Kata Feri}, Filip Juki}, Marija Juki},
Jozo Karanovi}, Antun Krivaji}, Reza Krivaji}, Barbara Kropf, Pavao Kropf, Ivan Kuli{i}, Nikola
Lon~ari}, Antun Mucavac, Ivo Pezo, Sofija Pezo, Anka Piktaja, [tjepan Sabljar, Veronika
Stankovi}, Antun [vra~i}, Marija [vra~i}, Ana Tepi}, Du{an Tepi}, Ivan Trnini}, Ivo Trnini}, Kata
Trnini}, Terezija Trnini}, and Katarina Vladi}. The Trial Chamber finds that it has been proven
beyond reasonable doubt that all victims were civilians and that they were taking no active part in
the hostilities at the time of their deaths. Based on the evidence concerning the organised rounding
up, detention and guarding of the civilians at the fire station by the Milicija Krajine, and the
evidence that the victims were killed only one day subsequent to their detention, the Trial Chamber
1092 Article 50 of Additional Protocol I; Blaški Appeal Judgement, para. 115. See supra fn 95.
1093 See supra paras 224 (regarding Saborsko), 236-237 (regarding [kabrnja).
1094 See supra section III F; section III H 2-3.
1095 See supra para. 154.
1096 See supra para. 300.
Case No. IT-95-11-T 133 12 June 2007
considers it established beyond reasonable doubt that the Milicija Krajine was responsible for these
killings. The Trial Chamber finds that all the elements of murder as a crime against humanity
(Count 3) and as a violation of the laws or customs of war (Count 4) have been established.
355. The Trial Chamber heard evidence that between mid-September 1991 and mid-October
1991, approximately ten Croat or mixed ethnicity houses were destroyed in Hrvatska Dubica.1098
There is evidence that “reservists” were involved in these acts. The Trial Chamber notes in
particular that by mid-September 1991 there were only some 60 mainly elderly people remaining in
the village and considers that this destruction was not justified by military necessity. However, the
Trial Chamber considers that the destruction of 10 houses in a village of some 400 to 500
households gives rise to doubt as to whether this destruction can be considered as destruction on a
large scale. The Trial Chamber therefore finds that the elements of wanton destruction of villages or
devastation not justified by military necessity (Count 12) have not been met.
356. In relation to the destruction of the Catholic church in Hrvatska Dubica, the Trial Chamber
considers that the evidence does not establish beyond reasonable doubt that it was destroyed before
December 1991.1099 For these reasons, the Trial Chamber concludes that the elements of the crime
of destruction or wilful damage done to institutions dedicated to education or religion (Count 13)
have not been met.
357. The Trial Chamber heard evidence that the JNA, TO and Milicija Krajine took part in
looting of Croat houses in Hrvatska Dubica from mid-September 1991 and stole cars, tractors, tools,
machinery, furniture and cattle.1100 The Trial Chamber finds that this intentional appropriation of
property was carried out without lawful basis or legal justification. Furthermore, given the scale of
the looting, the Trial Chamber finds that it resulted in grave consequences for the victims, having
regard to the overall effect on the civilian population and the multitude of offences committed. The
Trial Chamber finds that all the elements of the crime of plunder of public or private property
(Count 14) have been established.
358. The Trial Chamber recalls that among the persons rounded up in the fire station in Hrvatska
Dubica, the clear majority were Croats. The Trial Chamber notes that there were also Serbs among
those rounded up. However, the evidence shows that three Serbs managed to leave the fire station
and that seven Croats managed to leave the fire station after their Serb neighbours or friends had
contacted the guards. The Trial Chamber finds that the killings of the above-mentioned 41 victims
1097 See supra section III D 2 (b).
1098 See supra para. 180.
1099 See supra para. 194.
1100 See supra para. 180.
Case No. IT-95-11-T 134 12 June 2007
were carried out with intent to discriminate on the basis of Croat ethnicity. The elements of the
crime of persecutions (Count 1) have therefore been met in relation to these killings.
(b) Cerovljani1101
359. The Trial Chamber finds that the following persons from Cerovljani were intentionally
killed: Marija Antolovi, Ana Blinja, Josip Blinja, Katarina Blinja, Nikola Blinja, Andrija Liki,
Ana Lonar, Antun Lonar, and Kata Lonar (born 1906). The Trial Chamber recalls the manner in
which the victims from Hrvatska Dubica were rounded up and detained in the fire station on 20
October 1991 and that they were subsequently killed on 21 October 1991 at Kreane near Bain and
buried in the mass grave at that location. Furthermore, the Trial Chamber recalls its finding that the
Milicija Krajine was responsible for the killing of the victims detained in the fire station. The Trial
Chamber considers that the rounding up, detention and killing of the above-named victims from
Cerovljani is almost identical to the events in Hrvatska Dubica, including that most of the victims
were buried at the mass grave in Kreane. It is therefore established beyond reasonable doubt that
the above-mentioned victims from Cerovljani were killed on or around 20 or 21 October 1991
either by the Milicija Krajine, or units of the JNA or the TO, or a combination of some of them that
the Trial Chamber has found were present in the area at this time. The Trial Chamber considers it
proven beyond reasonable doubt that these victims were civilians and that they were not taking an
active part in the hostilities at the time of their deaths. The Trial Chamber therefore concludes that
all the elements of murder as a crime against humanity (Count 3) and as a violation of the laws or
customs of war (Count 4) have been established.
360. The Trial Chamber finds that on 13, 21 and 24 September 1991, armed Serbs from Živaja
under the command of Nikola Begovi burnt 10 houses in Cerovljani.1102 The Trial Chamber finds
that in a small village of some 500 people, the destruction of 10 houses must be regarded as
destruction on a large scale. The Trial Chamber finds that there is evidence that this destruction was
not carried out for reasons of military necessity. In this regard, the Trial Chamber notes in particular
the evidence that only elderly persons remained in Cerovljani and that the armed Serbs came on
three separate occasions. Finally, the intent of the perpetrators may be inferred from the repeated
and deliberate nature of the attacks, as well as from the absence of any military necessity. The Trial
Chamber therefore finds that the elements of wanton destruction of villages or devastation not
justified by military necessity (Count 12) have been met.
1101 See supra section III D 2 (c).
1102 See supra para. 187.
Case No. IT-95-11-T 135 12 June 2007
361. The Trial Chamber finds that on 24 September 1991 the same armed Serbs damaged the
Catholic church in Cerovljani.1103 The Trial Chamber finds that it has been proven that the church
was not used for military purposes at the time it was damaged. The intent of the perpetrators to
cause damage may be inferred from the fact that it occurred without any military necessity and as
part of a series of repeated attacks targeting property in Cerovljani. The Trial Chamber therefore
concludes that the elements of the crime of destruction or wilful damage done to institutions
dedicated to education or religion (Count 13) have been met.
362. The Trial Chamber heard evidence that the car of Antun Bla`evi} was stolen by the same
armed Serbs mentioned above.1104 Given the circumstances of this appropriation, the Trial Chamber
considers that it was done without any lawful basis or legal justification. However, it is required
that the property be of “sufficient monetary value” for its appropriation to involve grave
consequences for the victim. While the Trial Chamber finds that a personal vehicle is an item of
some value, the evidence is insufficient to establish that this particular appropriation resulted in
grave consequences for the victim. The elements of the crime of plunder of public or private
property under Article 3 (Count 14) have therefore not been met.
363. The Trial Chamber considers the totality of the evidence in relation to the events in
Cerovljani in September and October 1991 to establish that the Croat civilian population and Croat
property, including the Catholic church, were the objects of attack. In this respect, the Trial
Chamber recalls the systematic and repeated incursions into the village by armed Serbs with
resulting killings and destruction. Moreover, the Trial Chamber recalls that a Croat civilian, Kata
Lonar, survived the occupation because she had connections with the Serbs.1105 The Trial Chamber
therefore finds it established beyond reasonable doubt that the killings of the ten victims referred to
above were carried out with intent to discriminate on the basis of Croat ethnicity. Moreover, the
Trial Chamber considers the evidence to establish beyond reasonable doubt that the destruction of
private houses and of the Catholic church was carried out with the same discriminatory intent. The
elements of the crime of persecutions (Count 1) have therefore been met in relation to the killings
and the destruction in Cerovljani.
(c) Bain and surroundings1106
364. The Trial Chamber recalls that Vera Juki, Terezija Kramari, Mijo Krni, Marija
Mila{inovi, Marija [esti and Soka Volarevi were exhumed from the mass grave at Kreane near
1103 Ibid.
1104 Ibid.
1105 See supra para. 188.
1106 See supra section III D 2 (d).
Case No. IT-95-11-T 136 12 June 2007
Bain, and that Nikola Barunovi was exhumed from the mass grave at Višnjevaki Bok, where Ivo
Pezo, who had previously been detained at the fire station in Hrvatska Dubica, was also exhumed.
On the basis of this evidence, the Trial Chamber considers it established beyond reasonable doubt
that these seven victims were killed at or around the same time as the victims from Hrvatska Dubica
and Cerovljani were killed. Moreover, the Trial Chamber considers it established beyond
reasonable doubt that these victims were intentionally killed either by the Milicija Krajine, or units
of the JNA or the TO, or a combination of some of them which the Trial Chamber has found were
present in the area from mid-October 1991. The Trial Chamber finds it established beyond
reasonable doubt that the victims were civilians and that they were taking no active part in the
hostilities at the time of their deaths. The Trial Chamber concludes that the elements of murder as a
crime against humanity (Count 3) and as a violation of the laws or customs of war (Count 4) have
been established.
365. The Trial Chamber finds that the following 21 persons from Ba}in were intentionally killed
around October 1991: Matija Barunovi}, Antun Bunjevac, Tomo Bunjevac, Antun ^ori}, Barica
^ori}, Josip ^ori}, Josip ^ori}, Vera ^ori}, Nikola Felbabi}, Grga Glavini}, Anka Josipovi},
Ankica Josipovi}, Ivan Josipovi}, Josip Karagi}, Kata Lon~ar (born 1931), [tjepan Lon~ar, Antun
Ordani}, Luka Ordani}, Antun Pavi}, Matija Pavi} and Nikola Vrpoljac.1107 The Trial Chamber
finds it established beyond reasonable doubt that the victims were civilians and that they were
taking no active part in the hostilities at the time of their deaths. Based on the totality of the
evidence, the Trial Chamber finds it established beyond reasonable doubt that the above-mentioned
victims from Bain were killed around October 1991 either by the Milicija Krajine, or units of the
JNA or the TO, or a combination of some of them which the Trial Chamber has found were present
in the area at this time. The Trial Chamber finds that the elements of crimes of murder as a crime
against humanity (Count 3) and of murder as a violation of the laws or customs of war (Count 4)
have been established.
366. In relation to the destruction of houses and the Catholic church in Bain, it has not been
proven beyond reasonable doubt that the destruction occurred before December 1991.1108 For these
reasons, the Trial Chamber concludes that the elements of the crime of wanton destruction of
villages or devastation not justified by military necessity (Count 12) and of the crime of destruction
or wilful damage done to institutions dedicated to education or religion (Count 13) have not been
met.
1107 The Trial Chamber recalls that it will not consider the killing of Željko Abaza for a conviction, see supra fn 494.
See also supra section I C.
1108 See supra para. 195.
Case No. IT-95-11-T 137 12 June 2007
367. The Trial Chamber recalls that in 1991 the population in Bain was 95% Croat and 1.5%
Serb. Even making allowance for the possibility that there may have been a few Serbs among the 21
victims referred to above, this does not affect the Trial Chamber’s assessment that these killings
were carried out with intent to discriminate on the basis of Croat ethnicity. With regard to the six
victims exhumed from the mass graves in Kreane near Bain and in Višnjevaki Bok, the Trial
Chamber recalls its findings regarding the killing of persons from Cerovljani and Hrvatska Dubica
and finds that also these six killings were carried out with intent to discriminate on the basis of
Croat ethnicity. The Trial Chamber therefore finds that all the elements of the crime of persecution
(Count 1) have been met.
(d) Lipovaa and neighbouring hamlets1109
368. The Trial Chamber recalls that Franjo Brozin~evi}, Marija Brozin~evi}, Mate Brozin~evi},
Mira Brozin~evi} Mirko Brozin~evi}, Ro`a Brozin~evi} and Katarina Cindri} were killed in
Lipovaa towards the end of October 1991. The evidence shows beyond reasonable doubt that the
victims were civilians and were not taking an active part in the hostilities at the time of their deaths.
The Trial Chamber recalls the warning given by the JNA to the inhabitants of Lipovaa to beware
of paramilitary forces who followed after the JNA. The Trial Chamber further recalls that after the
departure of the JNA, paramilitary forces arrived in Lipovaa and Nova Kršlja from mid-October
and that after their arrival the dead bodies of the above-mentioned victims were discovered. The
Trial Chamber therefore considers it established beyond reasonable doubt that these intentional
killings were perpetrated by Serb paramilitary forces. The Trial Chamber concludes that the
elements of murder as a crime against humanity (Count 3) and as a violation of the laws or customs
of war (Count 4) have been established.
369. The Trial Chamber heard evidence that at the end of September or early October 1991, the
JNA arrived in Lipovaa and fired its tanks at and damaged the Catholic church in Drežnik Grad
nearby.1110 The Trial Chamber has not been furnished with evidence that the church was not being
used for military purposes at the time it was damaged. In this respect, the Trial Chamber notes that
the Croatian police were also present in Drežnik Grad at the time. The Trial Chamber therefore
concludes that the elements of the crime of destruction or wilful damage done to institutions
dedicated to education or religion (Count 13) have not been met.
370. The Trial Chamber recalls that in 1991 the population in Lipovaa was 83% Croat and 16%
Serb. Moreover, the Trial Chamber recalls the warning to the villagers by members of the JNA to
1109 See supra section III D 3 (b).
1110 See supra para. 202.
Case No. IT-95-11-T 138 12 June 2007
beware of Serb paramilitary units who followed after the JNA and that such paramilitary units
arrived after the JNA had left.1111 The evidence shows that after their arrival, Mate Brozin~evi},
Ro`a Brozin~evi}, and Mirko Brozin~evi}, all Croats, were killed.1112 The Trial Chamber finds the
evidence to establish beyond reasonable doubt that these killings were carried out with intent to
discriminate on the basis of Croat ethnicity. Moreover, in light of the totality of the evidence, the
Trial Chamber also finds that the killings of Franjo Brozin~evi}, Mira Brozin~evi}, Marija
Brozin~evi}, and Katarina Cindri} were carried out with the same discriminatory intent. The Trial
Chamber therefore finds that all the elements of the crime of persecution (Count 1) have been met.
(e) Vukovii and Poljanak1113
371. The Trial Chamber finds that Tomo Vukovi was intentionally killed by unidentified armed
Serbs in Vukovii on 8 October 1991. The Trial Chamber considers it proven beyond reasonable
doubt that Tomo Vukovi was a civilian and that he was not taking an active part in the hostilities at
the time of his death.1114 Moreover, the Trial Chamber finds that Joso Matovina, Nikola Matovina,
Dane Vukovi (son of Poldin), Dane Vukovi (son of Mate), Lucija Vukovi, Milka Vukovi,
Nikola “Šojka” Vukovi (born 1926) and Vjekoslav Vukovi were intentionally killed on 7
November 1991. The Trial Chamber finds that all victims were civilians and that none of them were
taking an active part in the hostilities at the time of their deaths. The Trial Chamber finds that on 7
November 1991 there was a mixture of JNA soldiers, including members of a JNA special unit
from Niš, as well as local armed men present in Vukovii. The Trial Chamber finds it proven
beyond reasonable doubt that these groups of soldiers were responsible for the killings of these
victims.
372. In relation to the killings in Poljanak, the Trial Chamber finds that Ivan Vukovi and Nikola
Vukovi (born 1938) were intentionally killed on 7 November 1991. The Trial Chamber finds that
these victims were civilians and that neither of them was taking an active part in the hostilities at
the time of their deaths. The evidence shows beyond reasonable doubt that the killings were
perpetrated by around 20 armed soldiers present in Poljanak on 7 November 1991, who wore
camouflage and olive-green uniforms and some of whom had arrived from the direction of
Vukovii just before the killing of Ivan Vukovi and Nikola Vukovi.
1111 Ibid.
1112 See supra para. 207.
1113 See supra section III D 3 (c).
1114 The Trial Chamber notes in particular Ex. 376, pp 6-7 which provides that Tomo Vukovi was killed as he tried to
escape from his house which had been set on fire.
Case No. IT-95-11-T 139 12 June 2007
373. The Trial Chamber concludes that the elements of murder as a crime against humanity
(Count 3) and as a violation of the laws or customs of war (Count 4) have been established for the
killings in Vukovii and Poljanak.
374. The Trial Chamber finds that at least three houses were destroyed in Vukovii as a result of
the shelling on 8 October 1991 and that one or two further houses were burnt in Vukovi}i on 7
November 1991.1115 The Trial Chamber finds beyond doubt that in a village consisting of some six
or seven houses, the burning of four or five houses constitutes destruction on a large scale. The
evidence is insufficient to identify the perpetrators of the destruction on 8 October 1991. With
regard to the destruction on 7 November 1991, the Trial Chamber recalls its finding regarding the
presence in Vukovii on this date of a large group of soldiers.1116 The Trial Chamber concludes that
the destruction was perpetrated by members of these units. The circumstances of the destruction on
7 November 1991 show beyond reasonable doubt that the destruction was not justified by military
necessity and that the destruction was carried out intentionally. The Trial Chamber concludes that
all the elements of the crimes of wanton destruction of villages or devastation of villages not
justified by military necessity (Count 12) have been met.
375. With regard to Poljanak, the evidence establishes that several houses, sheds and cars were
burnt on 7 November 1991 by the soldiers present in the village.1117 The Trial Chamber considers
that the evidence establishes beyond reasonable doubt that the destruction occurred on a large scale.
The Trial Chamber is satisfied that the destruction was not carried out for reasons of military
necessity and that it was perpetrated intentionally. The Trial Chamber therefore finds that the
elements of destruction of villages or devastation not justified by military necessity (Count 12) have
been met.
376. The Trial Chamber also heard evidence that some private property was looted in
Poljanak.1118 However, the Trial Chamber was not presented with evidence which would enable it
to conclude that the property appropriated was of sufficient monetary value to involve grave
consequences for the relevant victims. The Trial Chamber therefore finds that the elements of
plunder of public or private property (Count 14) have not been met.
377. The Trial Chamber recalls that all victims from Vukovii and Poljanak were Croats. The
Trial Chamber also recalls that one of the soldiers in Poljanak boasted that he slit the throats of
1115 See supra para. 214.
1116 Ibid.
1117 See supra para. 219.
1118 Ibid.
Case No. IT-95-11-T 140 12 June 2007
Ustašas.1119 The Trial Chamber finds that the above-mentioned killings in Vukovii and Poljanak
were carried out with intent to discriminate on the basis of Croat ethnicity. The Trial Chamber
therefore finds that all the elements of the crime of persecution (Count 1) have been met.
378. The Trial Chamber recalls that all the houses that were destroyed in Vukovii and Poljanak
belonged to Croats. Moreover, the evidence shows that while burning houses in Poljanak the
soldiers made comments, such as “Milo{evi} built the house and Milo{evi} is going to destroy it”
and “what’s Tu|man done for you? All you are going to get from him is a bullet in your head”.1120
The Trial Chamber finds it established beyond reasonable doubt that the destruction in Vukovii
and Poljanak was carried out with intent to discriminate on the basis of Croat ethnicity. The Trial
Chamber therefore concludes that all the elements of the crime of persecution (Count 1) have been
met.
(f) Saborsko1121
379. The Trial Chamber finds that 20 persons were intentionally killed in Saborsko on 12
November 1991: Ana Bi~ani}, Milan Bi~ani}, Nikola Bi~ani}, Petar Bi~ani}, Darko Dumen~i},
Ivica Dumen~i}, Kata Dumen~i}, Nikola Dumen~i}, Kata Matovina (born 1920), Mate Matovina
(born 1895), Milan Matovina, Slavko Serti}, Mate [pehar, Josip [trk, Jure/Juraj Štrk, Ivan
Vukovi}, Jeka/Jela Vukovi}, Jure Vukovi} (born 1929), Jure Vukovi} (born 1930), and Petar
Vukovi}. With regard to the killings at Petar Biani’s house, the evidence establishes that the two
perpetrators wore Serbian dark grey uniforms and helmets with a five pointed red star. The Trial
Chamber finds that they were members of units present in Saborsko after the attack on 12
November 1991. With regard to the other twelve victims, the Trial Chamber finds it established
beyond reasonable doubt that they were killed by members of units present in Saborsko after the
attack on 12 November 1991. The evidence proves that the eight persons killed at Petar “Krtan”
Bi~ani}’s house were civilians and that they were not taking an active part in the hostilities at the
time of their deaths. Furthermore, the Trial Chamber concludes, based on the totality of the
evidence, that Ana Bi~ani}, Kata Dumen~i}, Nikola Dumen~i}, Kata Matovina, and Mate Matovina
were civilians and that they were not taking an active part in the hostilities at the time of their
deaths. With regard to Darko Dumen~i}, Ivica Dumen~i}, Milan Matovina, Slavko Serti}, Mate
[pehar, Josip [trk, and Petar Vukovi, the Trial Chamber finds that the evidence is insufficient to
establish beyond reasonable doubt whether they were civilians or taking no active part in the
1119 See supra para. 216.
1120 See supra para. 219.
1121 See supra Section III D 3.
Case No. IT-95-11-T 141 12 June 2007
hostilities at the time of their deaths.1122 In conclusion, the Trial Chamber finds that the elements of
murder as a crime against humanity (Count 3) and as a violation of the laws or customs of war
(Count 4) have been established for the killings of the following 13 victims: Ana Bi~ani}, Milan
Bi}ani}, Nikola Bi}ani}, Petar Bi}ani}, Kata Dumen~i}, Nikola Dumen~i}, Kata Matovina, Mate
Matovina, Jure [trk, Ivan Vukovi}, Jela Vukovi, Jure Vukovi}, and his half brother also named
Jure Vukovi}.
380. The Trial Chamber finds that during the shellings of Saborsko from August 1991 until the
attack on 12 November 1991, the church of St. John and civilian buildings and homes were
damaged. The evidence shows that there was a significant armed presence in and around Saborsko
during this time period and that from at least September 1991 until the fall of Saborsko on 12
November 1991 a Croatian MUP reserve force was deployed in the church of St. John, which was
used as an observation post, machinegun nest and for ammunition storage.1123 While the evidence
establishes that the shelling of Saborsko was carried out from several directions, including from the
direction of the JNA barracks at Lika Jasenica, it is insufficient to conclude which units were
responsible for the shelling. The Trial Chamber further finds that both the church of St. John and
the church of the Mother of God were hit during the attack on 12 November 1991. With regard to
the latter church, the evidence establishes that it was used as a military observation post on 12
November 1991. The Trial Chamber therefore finds prior to the attack on 12 November 1991 the
church of St. John was used for a military purpose and that during the attack on 12 November both
churches were used for military purposes. The Prosecution has thus failed to meet its burden of
proof in this respect. There is further evidence that the two churches were destroyed by mid-
December 1991. However, the evidence is insufficient to establish who carried out this destruction.
The Trial Chamber therefore finds that the elements of destruction or wilful damage done to
institutions dedicated to education or religion (Count 13) have not been met.
381. The Trial Chamber finds that after the attack on Saborsko, civilian houses and property were
burnt on a large scale by the Serb forces which entered the village.1124 The Trial Chamber finds that
this burning was carried out deliberately and was not justified by military necessity, noting in
particular the evidence that the attack had ceased at the time this destruction took place.
Consequently, the elements of the crime of wanton destruction of villages or devastation not
justified by military necessity (Count 12) have been met.
1122 In this regard, the Trial Chamber has taken into account the evidence that 20 to 30 villagers were organised into
armed patrols from June 1991 (see supra para. 221) and the range of the ages of the male victims referred to at the time
of their death (between 19 and 59 years old).
1123 See supra para. 224.
1124 See supra para. 227.
Case No. IT-95-11-T 142 12 June 2007
382. The Trial Chamber heard evidence that Serb soldiers and policemen who participated in the
attack looted shops and businesses and took tractors, cars and livestock.1125 The Trial Chamber
finds that this looting was done on a large scale, noting in particular the evidence that nearly every
household in Saborsko had a tractor stolen.1126 The Trial Chamber finds that this appropriation
resulted in grave consequences for the victims, taking into account the overall effect on the civilian
population and the multitude of offences committed. Furthermore, the evidence establishes that this
appropriation was done intentionally and without lawful basis or legal justification. The elements of
the crime of plunder of public or private property under Article 3 (Count 14) have therefore been
met.
383. The Trial Chamber recalls that some of the soldiers present in Saborsko abused the
inhabitants with profanities such as “Fuck your Ustasha mother” and that all Croat villagers should
be slaughtered.1127 The Trial Chamber further recalls that Saborsko was 93.9% Croat and 3.3%
Serb.1128 Even making allowance for the possibility that there may have been a few Serbs among
the 13 victims referred to above, this does not affect the Trial Chamber’s overall assessment that
these killings were carried out with intent to discriminate on the basis of Croat ethnicity. The Trial
Chamber therefore concludes that all the elements of the crime of persecution (Count 1) have been
met.
384. The Trial Chamber recalls that the crime of wanton destruction of villages or devastation not
justified by military necessity was committed. The evidence shows that houses were burnt in Tuk,
Dumenii, Solaje and Borik.1129 The evidence further shows that Solaje was a Serb hamlet and that
in Borik both Serb and Croat houses were burnt. Therefore, the Trial Chamber does not find it
established beyond reasonable doubt that these acts of destruction were carried out with intent to
discriminate on the basis of Croat ethnicity. The Trial Chamber therefore concludes that the
elements of the crime of persecution (Count 1) have not been met.
(g) Vaganac
385. The Indictment charges that destruction and looting was committed in Vaganac, however
the Trial Chamber has not been furnished with evidence supporting these charges. For these
reasons, the Trial Chamber concludes that the elements of the crime of wanton destruction of
villages or devastation not justified by military necessity (Count 12), of the crime of destruction or
1125 Ibid.
1126 See supra fn 632.
1127 See supra para. 229.
1128 See supra fn 592.
1129 See supra para. 227.
Case No. IT-95-11-T 143 12 June 2007
wilful damage done to institutions dedicated to education or religion (Count 13) and of the crime of
plunder of public or private property under Article 3 (Count 14) have not been met.
(h) Škabrnja1130
386. The Trial Chamber recalls that Josip Miljani}, Krsto Šegari, Lucia Šegari and Stana
Vickovi} were killed at Slavko Šegari’s house in Ambar on 18 November 1991. The Trial
Chamber finds that Krsto Šegari was intentionally killed by Ðuro Kosovi, a local paramilitary
soldier wearing a camouflage uniform with an SAO Krajina patch and who participated together
with other SAO Krajina forces in the attack on Škabrnja. The Trial Chamber further finds that the
evidence establishes beyond reasonable doubt that Josip Miljani, Stana Vickovi, and Lucia
Šegari were intentionally killed by other members of such paramilitary soldiers. The Trial
Chamber finds that all four victims were civilians and that none of them were taking an active part
in the hostilities at the time of their deaths. The Trial Chamber concludes that all of the elements of
murder as a crime against humanity (Count 3) and as a violation of the laws or customs of war
(Count 4) have been established for the above-mentioned killings.
387. The Trial Chamber finds that Jozo Brki, Jozo Miljani, Slavka Miljani, Petar Pavii,
Mile Pavii, Ilija Ražov, Kata “Soka” Rogi, Ivica Šegari, Rade Šegari and Vice Šegari were
intentionally killed outside Petar Pavii’s house in Škabrnja on 18 November 1991. The
perpetrators of these killings were members of local paramilitary units, who participated, together
with other SAO Krajina forces, in the attack on Škabrnja and who wore camouflage uniforms and
different sorts of headgear. Mile Pavii and Ivica Šegari are listed in Annex I to the Indictment as
civilian victims, however the evidence shows that both were members of the Croatian defence force
in Škabrnja. The evidence shows that neither of them were taking an active part in the hostilities at
the time of their deaths. The Trial Chamber concludes that the remainder of the victims were
civilians and were not taking an active part in the hostilities at the time of their deaths. The Trial
Chamber finds that the elements of murder as a crime against humanity (Count 3) and as a violation
of the laws or customs of war (Count 4) have been established for the killings of Jozo Brki, Jozo
Miljani, Slavka Miljani, Petar Pavii, Ilija Ražov, Kata “Soka” Rogi, Rade Šegari, and Vice
Šegari. With regard to Mile Pavii and Ivica Šegari, the Trial Chamber finds that the elements of
murder, as a violation of the laws or customs of war (Count 4), have been established.
388. The Trial Chamber finds that Novica Atelj, Stoja Brki, Danka Brzoja, Ika irjak, Maša
irjak, Marija Šestan and Jakov Šestan were intentionally killed at Pere Sopi’s house in Nadin on
19 November 1991 by soldiers wearing JNA uniforms. The Trial Chamber finds that these victims
1130 See supra section III D 4.
Case No. IT-95-11-T 144 12 June 2007
were civilians and were not taking an active part in the hostilities at the time of their deaths. The
Trial Chamber finds that the elements of murder as a crime against humanity (Count 3) and as a
violation of the laws or customs of war (Count 4) have been established for these killings.
389. The Trial Chamber finds that the following civilians were killed in Škabrnja, Nadin or
Benkovac on 18 and 19 November 1991: Ivan Babi, Luka Bilaver, Marija Brki} (born 1943),
Marko Brki}, Željko urkovi, Marija Dra`ina, Ana Juri}, Grgo Juri}, Petar Juri}, Niko Pavi~i}i,
Josip Perica, Ljubo Perica, Ivan Ražov, Jela Ra`ov, Branko Rogi, Nikola Rogi}, Petar Rogi,
Kljajo Šegari, Lucka/Luca Šegari, Grgica “Maja” Šegari, Mara @ili}, Milka Žili, Pavica @ili},
Roko @ili}, Tadija @ili} and Marko @upan. The Trial Chamber further finds that these victims were
taking no active part in the hostilities at the time of their deaths. The Trial Chamber finds that it has
been proven beyond reasonable doubt that these victims, with the exception of Petar Rogi, were
intentionally killed by members of the units, including JNA and TO units, which took part in the
attack on Škabrnja and Nadin on 18 and 19 November 1991. With regard to Petar Rogi, the Trial
Chamber finds that he was intentionally killed in Benkovac by unidentified perpetrators after
having been taken from Škabrnja. The Trial Chamber finds that the elements of murder as a crime
against humanity (Count 3) and as a violation of the laws or customs of war (Count 4) have been
established for these killings, except for the killing of Petar Rogi}.
390. The Trial Chamber finds that the following members of the Croatian defence forces present
in Škabrnja and Nadin were killed on 18 and 19 November 1991: Vladimir Horvat, Nediljko Juri},
Slavko Miljani, Ga{par Perica, Ante Ra`ov, Marko Rogi}, Bude [egari}, Miljenko Šegari, [ime
[egari}, Nediljko [kara and Stanko Vickovi}. The evidence as to cause of death establishes beyond
doubt that Ante Ražov, Šime Šegari and Miljenko Šegari were not taking an active part in the
hostilities at the time of their deaths. The evidence further establishes beyond reasonable doubt that
Vladimir Horvat, Ga{par Perica, and Marko Rogi} were not taking an active part in the hostilities at
the time of their deaths. The Trial Chamber finds that it has been proven beyond reasonable doubt
that these victims, with the exception of Šime Šegari and Miljenko Šegari, were intentionally
killed by members of the units, including JNA and TO units, which took part in the attack on
Škabrnja and Nadin on 18 and 19 November 1991. With regard to Miljenko Šegari, the Trial
Chamber finds that he was intentionally killed in Benkovac by unidentified perpetrators after
having been taken from Škabrnja. With regard to Šime Šegari, the evidence establishes beyond
reasonable doubt that he was taking no active part in the hostilities when he was intentionally killed
in Knin by unidentified perpetrators after having been put by paramilitary soldiers in a JNA APC in
Škabrnja. With regard to Slavko Miljani, Bude Šegari, Nediljko Juri, Nediljko Škara, and Stanko
Vickovi} the evidence is insufficient to establish that at the time of their deaths they were taking no
active part in the hostilities.
Case No. IT-95-11-T 145 12 June 2007
391. The Trial Chamber finds that the elements of murder as a violation of the laws or customs of
war (Count 4) have been established for Ante Ra`ov, Vladimir Horvat, Ga{par Perica, Marko Rogi}
and Šime Šegari, but not for Miljenko Šegari.
392. The Trial Chamber finds that Marija Bilaver, Josipa Brki}, Mate Brki} and Kata Perica were
killed in Škabrnja on 11 March 1992. Moreover, the Trial Chamber finds that the following persons
were killed between 18 November 1991 and 11 March 1992: Grgo Bilaver, Peka Bilaver, Ana
Brki, Mijat Brki, Jure Erli, Dumica Gospi, Ljubomir Ivkovi, Neelko Ivkovi, Tereza Ivkovi,
Simica Jurjevi, Mirko Kardum, Simo Ražov, Grgica Ražov, Marko Ražov, and Pera Škara. The
Trial Chamber finds all of these victims, except Neelko Ivkovi, were civilians and were taking no
active part in the hostilities at the time of their deaths. The Trial Chamber finds that it has been
proven beyond reasonable doubt that these victims were intentionally killed by members of the
units that took part in the attack on Škabrnja and Nadin on 18 and 19 November 1991, or which
were subsequently present in the area of Škabrnja following the attack and until March 1992. These
units included JNA units, units from a TO brigade under JNA command, and paramilitary units.
The Trial Chamber finds that the elements of murder as a crime against humanity (Count 3) and as
a violation of the laws or customs of war (Count 4) have been established, except with regard to
Neelko Ivkovi, who the evidence establishes was a “Croat defender”. However, it has not been
established beyond reasonable doubt that he was not taking an active part in the hostilities at the
time of his death.
393. With regard to Kata Brki (born 1935), Kata Brki (born 1939), Marija Brki (born 1906),
Božo Stura, and Draginja Stura, the evidence is insufficient to conclude whether they were killed
between 18 November 1991 and 11 March 1992. With regard to Neelko Ivkovi, the evidence
shows that he was a member of the Croatian defence forces and that he was killed on 19 November
1991. The evidence is insufficient to conclude that he was not taking active part in the hostilities at
the time of his death. The Trial Chamber finds that the elements of murder as a crime against
humanity (Count 3) and as a violation of the laws or customs of war (Count 4) have not been
established for these killings.
394. The Trial Chamber recalls the evidence that there was intensive shelling in Škabrnja on the
morning of the attack.1131 Moreover, there is evidence that fire was opened on private houses by
JNA tanks and using hand-held rocket launchers.1132 The Trial Chamber recalls the evidence that
members of Croatian forces were in some of the houses in Škabrnja.1133 In the Trial Chamber’s
1131 See supra para. 239.
1132 See supra para. 241.
1133 See supra para. 240.
Case No. IT-95-11-T 146 12 June 2007
opinion, this gives rise to reasonable doubt as to whether the destruction resulting from these
actions was carried out for the purposes of military necessity. The elements of wanton destruction
of villages or devastation not justified by military necessity (Count 12) have therefore not been met.
395. There is evidence that during the attack, the church of the Assumption of the Virgin in the
centre of Škabrnja was shot at by a JNA tank. Furthermore, several soldiers entered the church and
fired their weapons.1134 The Trial Chamber finds that the church of the Assumption of the Virgin
was not used for military purposes at the time of this damage and furthermore that the
circumstances surrounding this damage establishes the intent of the perpetrators to cause such
damage. The Trial Chamber notes the evidence that on 18 November 1991 a JNA tank opened fire
in the direction of the school in Škabrnja and that by 19 November 1991 the school had been
destroyed. However, the Trial Chamber considers the evidence to be insufficient to show that the
school was not being used for military purposes at the time it was damaged. The Trial Chamber
finds that the elements of the crime of destruction or wilful damage done to institutions dedicated to
education or religion (Count 13) have been met in relation to the church of the Assumption of the
Virgin.
396. The Trial Chamber heard evidence that looting was committed in Škabrnja by soldiers under
the command of the Benkovac TO, by Serb paramilitaries, and by local Serbs after the attack.1135
However, the Trial Chamber was not presented with sufficient evidence as to the nature or scale of
such looting in order to enable it to establish whether the property appropriated was of sufficient
monetary value to result in grave consequences for the victims. The Trial Chamber therefore finds
that the elements of the crime of plunder of public or private property (Count 14) have not been
met.
397. The Indictment charges that destruction and looting was committed in Nadin, however the
Trial Chamber has not been furnished with evidence supporting these charges. For these reasons,
the Trial Chamber concludes that the elements of the crime of wanton destruction of villages or
devastation not justified by military necessity (Count 12), of the crime of destruction or wilful
damage done to institutions dedicated to education or religion (Count 13) and of the crime of
plunder of public or private property under Article 3 (Count 14) have not been met.
398. The Trial Chamber recalls that the majority of the victims in Škabrnja and Nadin, referred to
above, were of Croat ethnicity. The evidence shows that soldiers present in Škabrnja threatened
villagers hiding in the basements, saying “Come out you Usta{e, we are going to slaughter you all”
1134 See supra para. 241.
1135 See supra para. 263.
Case No. IT-95-11-T 147 12 June 2007
and that even women and children were being called “Usta{as” and were insulted by soldiers.1136
The Trial Chamber further recalls that Škabrnja and Nadin were almost exclusively Croat
villages.1137 Even making allowance for the possibility that there may have been a few Serbs among
the victims referred to above, this does not affect the Trial Chamber’s overall assessment that these
killings were carried out with intent to discriminate on the basis of Croat ethnicity. The Trial
Chamber therefore concludes that all the elements of the crime of persecution (Count 1) have been
met.
399. The Trial Chamber recalls that the church of the Assumption of the Virgin was destroyed
and that it was not used for military purposes at the time of the destruction. The Trial Chamber
recalls the manner in which the church was destroyed and concludes that this destruction was
carried out with the same discriminatory intent as referred to above. The Trial Chamber therefore
concludes that the elements of the crime of persecution (Count 1) have been met.
(i) Bruška1138
400. The Trial Chamber finds that Sveto Dra~a, Dragan Marinovi}, Draginja Marinovi}, Du{an
Marinovi}, Ika Marinovi}, Krsto Marinovi}, Manda Marinovi}, Petar Marinovi}, Roko Marinovi}
and Stana Marinovi} were intentionally killed in Bru{ka on 21 December 1991 by the Milicija
Krajine. The Trial Chamber considers that the JNA reports which indicate that these killings were
carried out in revenge do not disturb this finding.1139 With the exception of Sveto Draa, all victims
were civilians and were not taking an active part in the hostilities at the time of their deaths. The
Trial Chamber finds that the elements of murder as a crime against humanity (Count 3) and as a
violation of the laws or customs of war (Count 4) have been established for these victims.
401. With regard to Sveto Draa, the Trial Chamber concludes that he was a member of the JNA
and that he was wearing an olive-drab uniform when he was killed. The Trial Chamber recalls that
the JNA fought on the same side as the Milicija Krajine. For these reasons, the Trial Chamber
concludes that the elements of the crime of murder as a violation of the laws or customs of war
(Count 4) have not been met.
402. The evidence presented to the Trial Chamber is insufficient to establish when the destruction
occurred in Bruška and who carried out this destruction.1140 For these reasons, the Trial Chamber
1136 See supra para. 248.
1137 See supra para. 235.
1138 See supra section III D 5.
1139 See supra para. 272.
1140 See supra para. 273.
Case No. IT-95-11-T 148 12 June 2007
concludes that the elements of wanton destruction of villages or devastation not justified by military
necessity (Count 12) have not been met.
403. The Trial Chamber recalls that prior to the above-mentioned killings in Bruška, armed men
identifying themselves as “Martic’s men” or “Martic’s Militia” would come to Bru{ka daily to
intimidate the inhabitants, calling them “Usta{as”, and telling them that Bru{ka would be a part of a
Greater Serbia and that they should leave.1141 The Trial Chamber further recalls that the victims,
with the exception of Sveto Draa, were Croats. The Trial Chamber therefore finds it established
beyond reasonable doubt that these killings were carried out with intent to discriminate on the basis
of Croat ethnicity. Trial Chamber therefore concludes that the elements of the crime of persecution
(Count 1) have been met for all victims except Sveto Draa.
4. Count 2 – Extermination
404. The Trial Chamber recalls that the crime of extermination does not require a minimum
number of victims and that it may be established by an accumulation of separate and unrelated
killings. However, the Trial Chamber stresses that it is nevertheless a requirement that the evidence
supports a finding that the killings occurred on a large scale. In the present case, the Trial Chamber
has examined the killing incidents charged under Count 2 and has, in particular, considered the
evidence that the crimes were committed within a limited period of time and within a limited
territory. Having considered these factors, as well as the totality of the evidence surrounding the
killing incidents charged as extermination, the Trial Chamber finds that the evidence is insufficient
to establish that the crime of extermination was committed on an accumulated basis. Thus, the
element that the killings be committed on large scale has not been met.
405. The Prosecution has argued in the alternative that, should the Trial Chamber not find
extermination on the basis of an accumulation of all the killings charged, the killings committed “at
Bain” would amount to extermination in and of themselves.1142 The Trial Chamber understands
this to refer to the killings carried out at Kreane near Bain. The killings committed at Kreane
were without doubt grave, particularly considering the organised and callous manner in which the
evidence shows that they were carried out. However, the Trial Chamber cannot agree with the
Prosecution. These killings, even taken together, cannot be considered as having been committed on
a large scale. In other words, the killings at Kreane near Bain do not meet the element of
massiveness required for extermination.
1141 See supra para. 266.
1142 Prosecution Final Trial Brief, para. 397.
Case No. IT-95-11-T 149 12 June 2007
406. In conclusion, the Trial Chamber finds that the elements of the crime of extermination as a
crime against humanity (Count 2) have not been met.
5. Counts 1 and 5 to 9 – Detention-related crimes and persecution
(a) Detention facility at the JNA 9th Corps barracks in Knin1143
407. The Trial Chamber finds that between 75 and 200 persons were detained at several locations
at the premises of the JNA 9th Corps barracks in Knin. Among the detainees were both Croat and
other non-Serb civilians, and members of Croatian armed forces and formations. The Trial Chamber
finds that the former category of detainees were deprived of their liberty without due process of
law.
408. The Trial Chamber heard evidence of many instances of beatings and mistreatment of the
detainees at the JNA 9th Corps barracks. The Trial Chamber finds, in light of all the circumstances
in which beatings and mistreatment were carried out, that such acts caused serious physical and/or
mental suffering to the detainees. The Trial Chamber further finds that in some instances the
mistreatment was carried out intentionally for the prohibited purpose of intimidating the victims.1144
409. The Trial Chamber finds that the detainees at the JNA 9th Corps barracks were detained by
the JNA. Moreover, while the evidence is insufficient to establish who carried out the beatings and
the mistreatment at the premises of the JNA 9th Corps barracks, the Trial Chamber concludes that
the beatings and mistreatment were carried out at locations under the control of the JNA.
410. The Trial Chamber finds that the elements of the crimes of imprisonment (Count 5), torture
(Counts 6 and 8), other inhumane acts (Count 7), and cruel treatment (Count 9) have been met in
relation to the civilian detainees at the JNA 9th Corps barracks, including Petar Gurlica and Jere
Miskovi. With regard to the detainees who were not civilian, including Luka Brki, Ante “Neno”
Gurlica and Marin Gurlica, the Trial Chamber finds that the elements of the crimes of torture
(Count 8) and cruel treatment (Count 9) have been established.
411. The Trial Chamber recalls that most of those imprisoned in the JNA barracks in Knin were
not of Serb ethnicity. Moreover, the Trial Chamber recalls the discriminatory remarks of Ratko
Mladi} when he visited the sports hall at the JNA barracks premises and that he threatened the
detainees, saying that their fate would be the same as that of the people from [kabrnja.1145
Furthermore, the Trial Chamber recalls that the detainees were forced to take oaths “for the King
1143 See supra section III E 3 (a).
1144 See supra para. 283.
1145 Ibid.
Case No. IT-95-11-T 150 12 June 2007
and the fatherland, the Serbian fatherland”.1146 The Trial Chamber finds the evidence to establish
beyond reasonable doubt that the crimes of imprisonment, torture, inhumane acts, and cruel
treatment were carried out with intent to discriminate on the basis of ethnicity. The Trial Chamber
therefore concludes that all the elements of the crime of persecution (Count 1) have been met in
relation to the civilians who were detained at the JNA barracks.
(b) Detention facility at the old hospital in Knin1147
412. The Trial Chamber finds that from mid-1991 to mid-1992 between 120 and 300 persons
were detained in the old hospital in Knin. Among the detainees were both Croats and other non-
Serb civilians and members of Croatian armed forces and formations. The Trial Chamber finds that
the majority of the former category of detainees were deprived of their liberty without due process
of law. The Trial Chamber concludes that the elements of the crime of imprisonment under Count 5
have been met.
413. The Trial Chamber heard evidence of many instances of beatings and mistreatment of
detainees at the old hospital.1148 The Trial Chamber finds, in light of all the circumstances in which
beatings and mistreatment were carried out, that such acts caused serious physical and/or mental
suffering to the detainees. The Trial Chamber further finds that in some instances the mistreatment
was carried out intentionally for the prohibited purposes of obtaining information and/or to
discriminate against them because of their ethnicity.1149
414. The Trial Chamber finds that as of the summer of 1991, the detention facility at the old
hospital in Knin was run by the Ministry of Justice of the SAO Krajina. The evidence establishes
beyond reasonable doubt that the beatings, mistreatment and torture of the detainees was carried
out, inter alia, by members of the MUP, referred to by witnesses as “Marti’s police”, wearing blue
police uniforms, by the Milicija Krajine and by persons wearing camouflage uniforms.1150
Moreover, the evidence shows beyond reasonable doubt that the leadership permitted civilians from
outside the old hospital and Serb detainees to beat and mistreat the non-Serb detainees.
415. The Trial Chamber finds that the elements of the crimes of torture (Counts 6 and 8), other
inhumane acts (Count 7), and cruel treatment (Count 9) have been met in relation to the civilian
1146 Ibid.
1147 See supra section III E 3 (b).
1148 See supra paras 288-289.
1149 See supra para. 288.
1150 In this respect, the Trial Chamber notes in particular the evidence that members of the Milicija Krajine brought
Stanko Ersti to the old hospital, that members of “Marti’s Special Forces” carried out beatings, and that Milan Marti
was present on one occasion wearing camouflage uniform with the Milicija Krajine patch on the sleeve, see supra para.
286.
Case No. IT-95-11-T 151 12 June 2007
detainees. With regard to the detainees who were not civilian, the Trial Chamber finds that the
elements of the crimes of torture (Count 8) and cruel treatment (Count 9) have been met.
416. The Trial Chamber recalls that at the old hospital in Knin there were Croat and other non-
Serb detainees. The evidence shows that detainees were insulted by the guards, saying that “the
Croatian nation has to be destroyed” and that “all Croats have to be killed”.1151 On one occasion,
Vojislav Šešelj, from the Serbian Radical Party, visited the old hospital and asked the detainees
“how many Serbian children they slaughtered, how many mothers”.1152 The Trial Chamber finds
the evidence to establish beyond reasonable doubt that the crimes of imprisonment, torture,
inhumane acts, and cruel treatment were carried out with intent to discriminate on the basis of
ethnicity. The Trial Chamber therefore concludes that all the elements of the crime of persecution
(Count 1) have been met in relation to the civilians who were detained at the old hospital in Knin.
(c) Detention facility at the SJB in Titova Korenica1153
417. The Trial Chamber heard evidence that the following persons were detained in the SJB in
Titova Korenica for periods ranging between 10 days and 9 months: Vlado Vukovi}, Ignjac Ivanus,
Nikola Pemper, Milan Pavli}, Perica Bi}ani} and Ivica Bi}ani}. The Trial Chamber recalls that they
were all Croats. However, the Trial Chamber notes that Vlado Vukovi} and Ignjac Ivanus were
Croatian policemen and that Perica Bi}ani} and Ivica Bi}ani} were members of the civilian
protection force of Poljanak. Therefore, at the moment of their detention these persons did not hold
the status of civilians, as opposed to Milan Pavli, who the evidence shows was a civilian. The Trial
Chamber has not received evidence as to whether Nikola Pemper was a civilian. Furthermore, the
Trial Chamber has not received evidence that he was mistreated at the Titova Korenica SJB. With
regard to the other the persons detained at the Titova Korenica SJB, the Trial Chamber finds that
the evidence is insufficient to establish that they were civilians. With regard to Milan Pavli, the
Trial Chamber cannot establish beyond reasonable doubt he was detained without due process of
law, and the Trial Chamber therefore finds that the elements of the crime of imprisonment (Count
5) have not been met.
418. The Trial Chamber heard evidence that while detained, Vlado Vukovi} was subjected to
beatings and mistreatment, inter alia, by members of the MUP, who called themselves “Marti’s
men”, and by persons in camouflage uniforms. The evidence shows that members of the Milicija
Krajine were present during the beatings but did nothing to stop the beatings. Moreover, the Trial
Chamber notes the evidence that Milan Pavli} and Perica Bi}ani} were severely mistreated. The
1151 See supra para. 288.
1152 Ibid.
Case No. IT-95-11-T 152 12 June 2007
Trial Chamber finds, in light of all the circumstances in which the beatings and mistreatment were
carried out, that they caused serious physical and/or mental suffering to the detainees. The Trial
Chamber further finds that the mistreatment of Vlado Vukovi was carried out intentionally for the
prohibited purpose of intimidating him.1154
419. With regard to Milan Pavli, the Trial Chamber finds that the elements of the crime of
inhumane acts (Count 7) have been met. However, the Trial Chamber has not received evidence to
establish the elements of torture (Count 6) or persecutions (Count 1). With regard to the other
detainees at the SJB, the Trial Chamber finds that the elements of the crimes of cruel treatment
(Count 9), and, in relation to Vlado Vukovi, also torture (Count 8), have been met.
(d) Detention facilities in Benkovac1155
420. The Trial Chamber finds that two Croats, Ivan Atelj and [ime ai}, were detained in the
SJB in Benkovac for 19 days. There is insufficient evidence to conclude that these persons were
civilians. However, the evidence establishes that they were taking no active part in the hostilities.
421. During interrogations at the Benkovac SJB, Ivan Atelj and [ime ^a~i} were threatened and
subjected to severe beatings by the policemen. The Trial Chamber finds that the beatings caused
serious physical and mental suffering to the detainees. The Trial Chamber also finds that the
mistreatment was carried out intentionally in order to obtain information.
422. The Trial Chamber concludes that the elements of the crimes of imprisonment (Count 5),
torture (Count 6), inhumane acts (Count 7), and persecutions (Count 1) have not been met.
However, the elements of the crimes of torture (Count 8) and cruel treatment (Count 9) have been
met.
423. The Trial Chamber finds that at least 40 non-Serb civilians and members of the Croatian
armed forces and formations, including Luka Brki, Tomislav [egari}, Tomislav Gurlica and Marin
Juri}, were detained by the JNA at the kindergarten in Benkovac following the attack on Škabrnja.
While the Trial Chamber considers that these persons were detained without due process of law, the
Trial Chamber finds that this detention is more appropriately described as part of the crime of
deportation to which these persons were later subjected. The Trial Chamber therefore finds that the
elements of the crime of imprisonment (Count 5) have not been established .
1153 See supra section III E 1.
1154 See supra para. 275.
1155 See supra section III E 2.
Case No. IT-95-11-T 153 12 June 2007
424. The evidence is insufficient as to whether the detainees at the kindergarten in Benkovac
were mistreated. Thus, the Trial Chamber concludes that the elements of the crimes of inhumane
acts (Count 7), torture (Counts 6 and 8), and cruel treatment (Count 9) have not been met. The
evidence shows that Tomislav [egari}, Tomislav Gurlica and Marin Juri} were taken from the
kindergarten to the communal store in Biljani by the same individuals who detained them at the
kindergarten. In Biljani, they were threatened and insulted after which they were brought back to
the kindergarten.1156 The Trial Chamber concludes, considering in particular the age of the three
victims, that they were subjected to inhumane acts and cruel treatment in Biljani. The elements of
these crimes (Counts 7 and 9) have therefore been met. However, the elements of torture (Counts 6
and 8) have not been met.
425. With regard to the mistreatment of Tomislav [egari}, Tomislav Gurlica and Marin Juri}, the
Trial Chamber finds that the evidence is insufficient to establish that these acts were carried out
with intent to discriminate on the basis of Croat ethnicity. The Trial Chamber therefore concludes
that the elements of the crime of persecution (Count 1) have not been met.
6. Counts 1, 10 and 11 – Persecution, deportation and forcible transfer1157
426. From 1990 through the spring of 1991, the Croat and non-Serb population in the Knin area
was subjected to increasingly severe forms of discriminatory treatment.1158 From June 1991,
military operations were carried out by the SAO Krajina police, including the Milicija Krajine, the
JNA and the TO against predominantly Croat villages, including Lovinac, Ljubovo, Glina, and
Struga.1159 This further raised the tensions. Following Milan Marti’s ultimatum to the inhabitants
of Kijevo, most of the Croat population was evacuated after which the JNA 9th Corps, the Milicija
Krajine and the local TO attacked the village.1160 The attack resulted in destruction of houses,
damage to the church and looting. In August 1991, Croat civilians were displaced from the areas of
Knin and Glina to areas under Croatian control.1161 After the attack on Kijevo, the villages of Vrlika
and Drni{ were attacked. Destruction and looting were carried out following these attacks.1162 There
is further evidence that in 1991 Croats were killed by Serb forces in various locations in the SAO
Krajina.1163
1156 See supra para. 278.
1157 See supra section III F.
1158 See supra para. 296.
1159 See supra paras 163-165.
1160 See supra paras 166-168.
1161 See supra para. 296.
1162 See supra paras 170-171.
1163 See supra para. 324.
Case No. IT-95-11-T 154 12 June 2007
427. From August 1991 and into early 1992, forces of the TO and the police of the SAO Krajina
and of the JNA attacked Croat-majority villages and areas, including the villages of Hrvatska
Kostajnica, Cerovljani, Hrvatska Dubica, Ba}in, Saborsko, Poljanak, Lipovaa, [kabrnja and
Nadin. The displacement of the non-Serb population which followed these attacks was not merely
the consequence of military action, but the primary objective of it. This conclusion is supported by
the evidence of a generally similar pattern to the attacks. The area or village in question would be
shelled, after which ground units would enter. After the fighting had subsided, acts of killing and
violence would be committed by the forces against the civilian non-Serb population who had not
managed to flee during the attack. Houses, churches and property would be destroyed in order to
prevent their return and widespread looting would be carried out. In some instances the police and
the TO of the SAO Krajina organised transport for the non-Serb population in order to remove it
from SAO Krajina territory to locations under Croatian control. Moreover, members of the non-
Serb population would be rounded up and taken away to detention facilities, including in central
Knin, and eventually exchanged and transported to areas under Croatian control.1164
428. The Trial Chamber considers the evidence to establish beyond reasonable doubt that the
systematic acts of violence and intimidation carried out, inter alia, by the JNA, the TO and the
Milicija Krajine against the non-Serb population in the villages created a coercive atmosphere in
which the non-Serb population did not have a genuine choice in their displacement. Based on this
evidence, the Trial Chamber concludes that the intention behind these acts was to drive out the non-
Serb population from the territory of the SAO Krajina. In this respect, the Trial Chamber recalls
that the forces in question also undertook direct actions to remove those who had not fled to
territories under Croatian control. The Trial Chamber also recalls that in spite of this intention to
remove the non-Serb population from the territory of the SAO Krajina, in some instances the non-
Serb population left their homes temporarily as a result of the acts of violence and intimidation and
subsequently returned.
429. Based on the above, the Trial Chamber concludes that by the end of 1991 large numbers of
the non-Serb population had been forcibly removed from the territory of the SAO Krajina to
territories under the control of Croatia. The elements of the crime of deportation (Count 10) have
therefore been met. Moreover, the Trial Chamber concludes that in some instances, due to the
existing coercive atmosphere existing during this time period, members of the non-Serb population
1164 In relation to Hrvatska Kostajnica, see section III D 2 (a), Hrvatska Dubica, see section III D 2 (b), Cervoljani, see
section III D 2 (c), Bain, see section III D 2 (d) see also section III D 2 (e). In relation to Lipovaa, see section III D 3
(b). Poljanak and Vukovii, see section III D 3 (c). Saborsko, see section III D 3 (d). Škabrnja, see section III D 4.
Case No. IT-95-11-T 155 12 June 2007
fled their homes without going to territories under Croatian control.1165 In such instances, the
elements of the crime of other inhumane acts (forcible transfer) (Count 11) have been met.
430. With regard to the period from 1992 to 1995, the Trial Chamber has been furnished with a
substantial amount of evidence of massive and widespread acts of violence and intimidation
committed against the non-Serb population, which were pervasive throughout the RSK territory.1166
The Trial Chamber notes, in particular, that during this time period there was a continuation of
incidents of killings, beatings, robbery and theft, harassment, and extensive destruction of houses
and Catholic churches carried out against the non-Serb population.1167 These acts created a coercive
atmosphere which had the effect of forcing out the non-Serb population from the territory of the
RSK. As a consequence, almost the entire non-Serb population left the RSK. Moreover, in some
instances the RSK authorities provided transportation and escorts in order to remove the non-Serb
population to territories under Croatian control. Furthermore, the Trial Chamber recalls that in July
1992 the RSK authorities cooperated with the authorities in Bosanski Novi, BiH, in the
displacement of the non-Serb population from that municipality to Croatia, Slovenia, Austria and
Germany.1168
431. Based on the substantial evidence referred to above, the Trial Chamber finds that due to the
coercive atmosphere in the RSK from 1992 through 1995, almost the entire non-Serb population
was forcibly removed to territories under the control of Croatia. The elements of the crime of
deportation (Count 10) have therefore been met.
432. In light of the evidence referred to above, which establishes that acts of killing,
mistreatment, deportation, forcible transfer, destruction and other acts of intimidation were carried
out with the intent to discriminate on the basis of ethnicity, the Trial Chamber finds that all the
elements of persecution (Count 1) have been met for the period from August 1991 through 1995.
7. Counts 1 and 15 to 19 – Shelling of Zagreb on 2 and 3 May 19951169
433. The Trial Chamber will consider Counts 15 to 19 in the following section.1170
1165 See supra paras 202, 211, 222.
1166 See supra paras 327-328.
1167 Ibid.
1168 See supra para. 300.
1169 See supra section III G.
1170 See infra section IV B 4.
Case No. IT-95-11-T 156 12 June 2007
B. Findings on the individual criminal responsibility of Milan Marti
434. Milan Marti is charged with individual criminal responsibility pursuant to Article 7(1) in its
entirety in relation to each Count. Article 7(1) of the Statute provides:
A person who planned, instigated, ordered, committed or otherwise aided and abetted in the
planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute,
shall be individually responsible for the crime.
With regard to Counts 3 to 14, and Count 1 insofar as it relates to these counts, the Trial Chamber
finds that the individual criminal responsibility of Milan Marti is one of JCE pursuant to Article
7(1) of the Statute. With regard to Counts 15 to 19, and Count 1 insofar as it relates to these counts,
the Trial Chamber finds that the individual criminal responsibility of Milan Marti is one of
ordering pursuant to Article 7(1) of the Statute. Other modes of liability pursuant to Article 7(1) and
7(3) of the Statute will not be considered.
1. JCE pursuant to Article 7(1) of the Statute
435. JCE is established as a form of liability within the meaning of “commission” under Article
7(1) of the Statute.1171 The Appeals Chamber found that “whoever contributes to the commission of
crimes by a group of persons or some members of a group, in execution of a common criminal
purpose, may be held to be criminally liable, subject to certain conditions”.1172 Three categories of
JCE have been identified in customary international law.1173 The Prosecution charges Milan Marti
pursuant to the “first” and “third” categories of JCE.1174 As stated by the Appeals Chamber,
regardless of the categories of JCE, a conviction requires a finding that the accused participated in a
JCE. There are three requirements for such a finding: a plurality of persons, the existence of a
1171 Tadi Appeal Judgement, para. 190. See also Prosecutor v. Milan Milutinovi}, Nikola [ainovi} and Dragoljub
Ojdani}, Case No. IT-99-37-AR72, Decision on Dragoljub Ojdani}’s Motion Challenging Jurisdiction – Joint Criminal
Enterprise, 21 May 2003, paras 20, 31; Staki} Appeal Judgement, para. 62 and the jurisprudence cited therein.
1172 Tadi Appeal Judgement, para. 190.
1173 Tadi Appeal Judgement, para. 220.
1174 Indictment, para. 5. The first form of JCE is described by the Appeals Chamber as follows: “all-co-defendants,
acting pursuant to a common design, possess the same criminal intention; for instance, the formulation of a plan among
the co-perpetrators to kill, where, in effecting this common design (and even if each co-perpetrator carries out a
different role within it), they nevertheless all possess the intent to kill. The objective and subjective prerequisites for
imputing criminal responsibility to a participant who did not, or cannot be proven to have, effected the killing are as
follows: (i) the accused must voluntarily participate in one aspect of the common design (for instance, by inflicting nonfatal
violence upon the victim, or by providing material assistance to or facilitating the activities of his co-perpetrators);
and (ii) the accused, even if not personally effecting the killing, must nevertheless intend this result,” Tadi Appeal
Judgement, para. 196; the third is characterized as follows: “a common design to pursue one course of conduct where
one of the perpetrators commits an act which, while outside the common design, was nevertheless a natural and
foreseeable consequence of the effecting of that common purpose. An example of this would be a common, shared
intention on the part of a group to forcibly remove members of one ethnicity from their town, village or region (to effect
‘ethnic cleansing’) with the consequence that, in the course of doing so, one or more of the victims is shot and killed,”
Tadi Appeal Judgement, para. 204.
Case No. IT-95-11-T 157 12 June 2007
common purpose (or plan) which amounts to or involves the commission of a crime provided for in
the Statute and the participation of the accused in this common purpose.1175
436. A JCE exists when a plurality of persons participate in the realisation of a common criminal
purpose. However, they need not be organised in a military, political or administrative structure.1176
437. The first form of JCE requires the existence of a common purpose, which amounts to, or
involves the commission of one or more crimes provided for in the Statute.1177 The common
purpose need not be previously arranged or formulated and may materialise extemporaneously.1178
438. It is not required that the principal perpetrators of the crimes which are part of the common
purpose be members of a JCE.1179 An accused or another member of a JCE may use the principal
perpetrators to carry out the actus reus of a crime. However, “an essential requirement in order to
impute to any accused member of the JCE liability for a crime committed by another person is that
the crime in question forms part of the common criminal purpose.”1180 This may be inferred, inter
alia, from the fact that “the accused or any other member of the JCE closely cooperated with the
principal perpetrator in order to further the common criminal purpose.”1181
439. For the first form of JCE, it is also required that the accused must both intend the
commission of the crime and intend to participate in a common plan aimed at its commission.1182
For the third form of JCE, the accused is held responsible for a crime outside the common purpose
if, under the circumstances of the case, (i) it was foreseeable that such a crime might be perpetrated
by one or other members of the group and (ii) the accused willingly took that risk (dolus eventualis).
The crime must be shown to have been foreseeable to the accused in particular.1183
440. The requirement of participation for both forms of JCE is satisfied when the accused
assisted or contributed to the execution of the common purpose. The accused need not have
1175 Br|anin Appeal Judgement, para. 364.
1176 Vasiljevi} Appeal Judgement, para. 100, referring to Tadi Appeal Judgement, para. 227.
1177 Br|anin Appeal Judgement, para. 418. The Appeals Chamber stated that the Trial Chamber should make a finding
that the criminal purpose is not “merely the same, but also common to all of the persons acting together within a joint
criminal enterprise”, Br|anin Appeal Judgement, para. 430.
1178 Br|anin Appeal Judgement, para. 418.
1179 Br|anin Appeal Judgement, para. 410.
1180 Br|anin Appeal Judgement, para. 418.
1181 Br|anin Appeal Judgement, para. 410. See also paras 413, 418, noting that the requirement that the crime be part of
a common purpose is a matter of evidence.
1182 Branin Appeal Judgement, para. 365. The Appeals Chamber also noted that “a Chamber can only find that the
accused has the requisite intent if this is the only reasonable inference on the evidence”, id. para. 429.
1183 Br|anin Appeal Judgement, para. 365. The Appeals Chamber has clarified that it is not a requirement that the crime
which was foreseeable was carried out by a member of the JCE, but that it may be perpetrated also by one or more
persons used by a member of the JCE in order to carry out the actus reus of the crimes forming part of the common
purpose, id. para. 411.
Case No. IT-95-11-T 158 12 June 2007
performed any part of the actus reus of the perpetrated crime.1184 It is also not required that his
participation be necessary or substantial to the crimes for which the accused is found
responsible.1185 Nevertheless, it should at least be a significant contribution to the crimes for which
the accused is to be found responsible.1186
2. Ordering pursuant to Article 7(1) of the Statute
441. Ordering requires that a person in a position of authority instructs another person to commit
a crime.1187 It is required that the crime in question was actually committed by the principal
perpetrators.1188 It is sufficient that the person ordering the crime possesses authority, whether de
jure or de facto.1189 This authority may be proved expressly or may be reasonably implied from the
evidence.1190 The mens rea is either direct intent in relation to the perpetrator’s own ordering or
indirect intent, that is, a person, who orders with the awareness of the substantial likelihood that a
crime will be committed in the execution of that order, has the requisite mens rea for this mode of
liability under Article 7(1) of the Statute.1191
3. Findings on Counts 1 to 14
(a) Common purpose
442. The Prosecution alleges that the common purpose of the JCE was ”the forcible removal of a
majority of the Croat, Muslim and other non-Serb population from approximately one-third of the
territory of the Republic of Croatia “Croatia” and large parts of the Republic of Bosnia and
Herzegovina “BiH”, in order to make them part of a new Serb-dominated state.”1192 The evidence
establishes the existence, as of early 1991, of a political objective to unite Serb areas in Croatia and
in BiH with Serbia in order to establish an unified territory.1193 Moreover, the evidence establishes
that the SAO Krajina, and subsequently the RSK, government and authorities fully embraced and
advocated this objective, and strove to accomplish it in cooperation with the Serb leaderships in
Serbia and in the RS in BiH.1194 The Trial Chamber considers that such an objective, that is to unite
with other ethnically similar areas, in and of itself does not amount to a common purpose within the
1184 Kvoka et al. Appeal Judgement, para. 99; Staki} Appeal Judgement, para. 64.
1185 Br|anin Appeal Judgement, para. 430; Kvoka et al. Appeal Judgement, para. 98.
1186 Br|anin Appeal Judgement, para. 430.
1187 Kordi} and ^erkez Appeal Judgement, para. 28; Gacumbitsi Appeal Judgement, para. 182.
1188 Br|anin Trial Judgement, para. 267 (with further references).
1189 Br|anin Trial Judgement, para. 270. See also Kordi} and ^erkez Appeal Judgement, para. 28, in which it is held
that a formal superior-subordinate relationship is not required.
1190 Br|anin Trial Judgement, para. 270; Limaj et al. Trial Judgement, para. 515.
1191 See Kordi and erkez Appeal Judgement, paras 29-30; Blaški Appeal Judgement, para. 42.
1192 Indictment, para. 4.
1193 See supra Section III I.
1194 Ibid.
Case No. IT-95-11-T 159 12 June 2007
meaning of the law on JCE pursuant to Article 7(1) of the Statute. However, where the creation of
such territories is intended to be implemented through the commission of crimes within the Statute
this may be sufficient to amount to a common criminal purpose.
443. The Trial Chamber recalls that several armed clashes occurred during the spring and early
summer of 1991 between SAO Krajina and Croatian armed forces and formations.1195 Initially,
these clashes were the result of tensions between the Croatian and SAO Krajina police and the
climate of fear and mistrust between the Serb and Croat inhabitants. The evidence shows that
beginning with the armed attack on the predominantly Croat village of Kijevo in August 1991, the
SAO Krajina MUP and TO forces cooperated with the JNA. As of this point in time, the JNA was
firmly involved on the side of the SAO Krajina authorities in the struggle to take control of territory
in order to unite predominantly Serb areas.1196 The Trial Chamber recalls the ultimatum given by
Milan Marti on 26 August 1991 in relation to the imminent attack on Kijevo that “you and your
leadership have brought relations between the Serbian and Croatian populations to such a state that
further co-existence in our Serbian territories of the SAO Krajina is impossible”.1197 From at least
this point in time until early 1992, several other predominantly Croatian villages were attacked by
forces of the TO and the police forces of the SAO Krajina and of the JNA acting in cooperation.1198
The Trial Chamber recalls that these attacks followed a generally similar pattern, which involved
the killing and the removal of the Croat population.1199 Furthermore, after these attacks, widespread
crimes of violence and intimidation and crimes against private and public property were perpetrated
against the Croat population, including detention in facilities run by MUP forces of the SAO
Krajina and the JNA.1200 The threat clearly expressed in Milan Marti’s ultimatum was therefore
carried out throughout the territory of the SAO Krajina in this period through the commission of
widespread and grave crimes which created an atmosphere of fear in which the further presence of
Croats and other non-Serbs in these territories was made impossible. In this respect, the Trial
Chamber has concluded that the displacement of the non-Serb population was not a mere side-effect
but rather a primary objective of the attacks.1201
444. Widespread acts of violence and intimidation intensified against the non-Serb population
and became pervasive throughout the RSK territory from 1992 to 1995.1202 These acts were
committed by members of the TO and the police of the RSK, and of the JNA, as well as members
1195 See supra Section III D 1.
1196 See supra paras 166-168, 170-171; section III I.
1197 See supra para. 166.
1198 See supra section III D 2-5 (see also paras 170-171); section IV A 6.
1199 See supra section IV A 6.
1200 Ibid.
1201 Ibid.
1202 See supra section III H 2-3; section IV A 6.
Case No. IT-95-11-T 160 12 June 2007
of the local Serb population, and created such a coercive atmosphere that the Croat and other non-
Serb inhabitants of the RSK were left with no option but to flee.1203
445. From at least August 1991, the political objective to unite Serb areas in Croatia and in BiH
with Serbia in order to establish a unified territory was implemented through widespread and
systematic armed attacks on predominantly Croat and other non-Serb areas and through the
commission of acts of violence and intimidation. In the Trial Chamber’s view, this campaign of
violence and intimidation against the Croat and non-Serb population was a consequence of the
position taken by the SAO Krajina and subsequently the RSK leadership that co-existence with the
Croat and other non-Serb population, in Milan Marti}’s words, ”in our Serbian territories of the
SAO Krajina”, was impossible.1204 Thus, the implementation of the political objective to establish a
unified Serb territory in these circumstances necessitated the forcible removal of the non-Serb
population from the SAO Krajina and RSK territory. The Trial Chamber therefore finds beyond
reasonable doubt that the common purpose of the JCE was the establishment of an ethnically Serb
territory through the displacement of the Croat and other non-Serb population, as charged in Counts
10 and 11.
(b) Plurality of persons
446. The Trial Chamber has been furnished with a substantial amount of evidence that the
objective to unite Serb territories was espoused by the leaderships in Serbia, in the RS in BiH, and
in the SAO Krajina and the RSK.1205 The SAO Krajina, and later the RSK, government which
included Milan Babi and Milan Marti, sought and received significant financial, logistical and
military support from Serbia, including from the MUP and SDB of Serbia, and from the RS in
BiH.1206 Milan Marti also admitted that he had himself “personally never ceased this cooperation”
and that there was “good cooperation with the leadership of Serbia, notably the MUP.”1207 In fact,
the evidence shows that the police of the SAO Krajina were mainly financed with funds and
material from the MUP and the SDB of Serbia.1208 This support continued from 1991 to 1995 and
even included modifications regarding units and personnel within the armed forces of the SAO
Krajina and of the RSK.1209 There is evidence that the cooperation between the armed forces of the
SAO Krajina, and later the RSK, and the JNA was extensive and covered such major military
actions as those carried out in Kijevo, Hrvatska Kostajnica, Saborsko and in Škabrnja, as well as
1203 See supra section IV A 6.
1204 See supra para. 166.
1205 See supra section III I
1206 See supra section III B 2; section III C 2.
1207 See supra section III C 2, referring to Ex. 951, p. 1.
1208 See supra section III B 2.
1209 See supra section III B 2; section III C 2. See also para. 142.
Case No. IT-95-11-T 161 12 June 2007
operation Koridor 92.1210 In this respect, the Trial Chamber recalls the evidence that the SVK and
the VJ were in reality one and the same organisation, only located at two separate locations.1211
Moreover, the evidence of Milan Marti’s arrest in 1991 gives a clear example of joint cooperation
between political leaders in the SAO Krajina, in the RS in BiH and in Serbia.1212 The Trial
Chamber has been furnished with evidence that this type of cooperation continued until 1995.1213
The Trial Chamber therefore finds that at least Blagoje Adži, Milan Babi}, Radmilo Bogdanovi,
Veljko Kadijevi}, Radovan Karad`i}, Slobodan Miloševi, Ratko Mladi, Vojislav [e{elj, Franko
“Frenki” Simatovi, Jovica Staniši, and Captain Dragan Vasiljkovi participated in the furtherance
of the above-mentioned common criminal purpose.
(c) Milan Marti’s participation in the JCE
447. As noted above, the Prosecution alleges that Milan Marti participated in the JCE in a
number of ways.1214
448. Milan Marti’s contacts with other members of the JCE had already begun during the
autumn of 1990 and intensified during 1991 and onwards.1215 The evidence shows that these
contacts were close and direct and that as a result, substantive financial, logistical and military
support was rendered to the SAO Krajina and the RSK.1216 The evidence is clear that Milan Marti
actively worked together with the other JCE participants to fulfil the objective of a united Serb
state, something which he expressed publicly on several occasions between 1991 and 1995.1217
449. Milan Marti was considered one of the most important and influential political figures in
the SAO Krajina and the RSK governments.1218 During his tenure as Minister of the Interior of the
SAO Krajina and RSK, Milan Marti exercised absolute authority over the MUP, including the
power to intervene on an individual level by appointing and removing chiefs of the SJBs as well as
the authority to disband units within the MUP.1219
450. The evidence shows that the displacement of the non-Serb population had commenced in
and around Knin already in 1991. The ultimatum issued by Milan Marti to the Croatian SJB and
the inhabitants of Kijevo at the end of August 1991 is indicative of Milan Marti’s mindset in
1210 See supra section III C 1; section III D 1-5. With regard to Kijevo, the Trial Chamber notes in particular Ex. 45, p.
48, see supra fn 397.
1211 See supra fn 371.
1212 See supra section III B 2.
1213 See supra section III C 2.
1214 Indictment, para. 7. See supra para. 6.
1215 See supra section III B 2.
1216 See supra section III B 2; section III C 2.
1217 See supra section III B; section III C.
1218 See supra section III J.
Case No. IT-95-11-T 162 12 June 2007
relation to the Croat population of the SAO Krajina.1220 Furthermore, Milan Marti contributed to
this displacement by fuelling the atmosphere of insecurity and fear through radio speeches wherein
he stated he could not guarantee the safety of the non-Serb population.1221
451. There is no doubt that Milan Marti was aware that the non-Serb population was being
driven out as a result of the coercive atmosphere in the SAO Krajina and the RSK. The sheer scale
of the widespread and pervasive crimes against the non-Serb population of the SAO Krajina and the
RSK must have made such crimes common knowledge.1222 The Trial Chamber recalls that crimes
committed within the territory of the RSK were discussed at RSK government sessions.1223
Furthermore, Milan Marti and the MUP were informed by UNCIVPOL of the multitude of crimes
which were being committed against the non-Serb population.1224 Here, the Trial Chamber recalls
that Milan Marti himself issued detailed instructions concerning the cooperation of the MUP with
UNPROFOR and UNCIVPOL, and concerning reporting obligations within the MUP. The evidence
shows that these instructions were adhered to.1225 Moreover, the Trial Chamber recalls that Milan
Marti disbanded both Predrag Baklaji’s unit and Veljko Raunovi’s police unit due to criminal
activities. However, despite the substantial evidence concerning ongoing crimes committed by the
MUP throughout the territory of the SAO Krajina and the RSK, the Trial Chamber has only been
presented with evidence of a few examples where Milan Marti intervened to punish members of
the MUP who had behaved in a criminal manner.1226 The Trial Chamber cannot but conclude that
Milan Marti deliberately refrained from intervening against perpetrators who committed crimes
against the non-Serb population.
452. The evidence establishes that Milan Marti actively participated in the forcible removal of
the non-Serb population both through his own actions and those of the members of the MUP. There
is evidence of direct acts of deportation perpetrated by MUP forces, which resulted in the removal
from the SAO Krajina and RSK territory of the non-Serb population.1227 In this respect, the Trial
Chamber recalls in particular the collection centre at Vrpolje, only a few kilometres north of Knin,
1219 Ibid.
1220 See supra para. 166.
1221 See supra section III F.
1222 The Trial Chamber recalls the testimony of Slobodan Jarevi, the Foreign Minister of the RSK, that the RSK
government “did not take any steps against the members of any other nation or ethnic group” and that it was difficult
for the RSK government to protect the Croats who remained in the RSK because many of the crimes were committed
out of a revenge for losing family members, see supra fn 1053. In view of the pervasive nature of the crimes committed
against the non-Serb population, the Trial Chamber does not find this evidence credible. In this respect, the Trial
Chamber also recalls the evidence that Milan Marti was aware of the various detention facilities, which existed in the
SAO Krajina and the RSK, see supra para. 294; Ex. 518; Ex. 919.
1223 See supra section III J.
1224 Ibid.
1225 Ibid.
1226 Ibid.
1227 See supra section III D 2-5; section III F.
Case No. IT-95-11-T 163 12 June 2007
which was secured by members of the Knin SJB and to which they directed the non-Serb
population, who desired to leave the RSK territory. Members of the Knin SJB organised bus
transport of the non-Serb population to areas under Croatian control. During a meeting with Cedric
Thornberry on 14 June 1993, Milan Marti requested that Croats who wished to leave the RSK sign
statements that no one had put pressure on them to leave.1228 Milan Marti was aware of the
persecutory and coercive atmosphere which existed and had existed in the SAO Krajina and RSK
territory for a long time and that those non-Serbs who expressed a desire to leave the territory did so
without having a genuine choice in their displacement. Moreover, there is evidence that Milan
Marti repeatedly and publicly opposed the return of refugees.1229
453. The Trial Chamber therefore concludes that Milan Marti intended to forcibly displace the
non-Serb population from the territory of the SAO Krajina, and subsequently the RSK, and actively
participated in the furtherance of the common purpose of the JCE.
454. The Trial Chamber finds that the crimes found to have been perpetrated against the non-
Serb population under Counts 3 to 9, Counts 12 to 14, and Count 1 insofar as it relates to these
counts, were outside of the common purpose of the JCE. However, the Trial Chamber recalls that
Milan Marti was aware that the non-Serb population was being subjected to widespread and
systematic crimes, including killings, unlawful detentions, beatings while detained, and crimes
against property, as a result of the coercive atmosphere in the SAO Krajina and the RSK. The Trial
Chamber considers that this atmosphere was created and sustained by the actions of Milan Marti
and other members of the JCE. The Trial Chamber therefore finds that the crimes which have been
found to be outside the common purpose were foreseeable to Milan Marti. Furthermore, the
evidence includes only scarce reference to Milan Marti acting to take measures to prevent or
punish such crimes. Moreover, despite the overwhelming evidence of the scale and gravity of the
crimes being committed against the non-Serb population, Milan Marti persisted in pursuing the
common purpose of the JCE. Thus, the Trial Chamber considers it proven beyond reasonable doubt
that Milan Marti willingly took the risk that the crimes which have been found to be outside the
common purpose might be perpetrated against the non-Serb population.
455. The Trial Chamber finds that Milan Marti incurs individual criminal responsibility
pursuant to Article 7(1) of the Statute for Counts 3 to 14, and Count 1, insofar as it relates to these
counts.
1228 See supra para. 299.
1229 See supra para. 341.
Case No. IT-95-11-T 164 12 June 2007
4. Findings on Counts 1 and 15 to 19
(a) Milan Marti’s ordering of the shelling of Zagreb on 2 and 3 May 1995
456. The Trial Chamber recalls that Milan Marti} repeatedly admitted in media statements that he
had ordered the shelling of Zagreb on 2 and 3 May 1995. In this Trial Chamber’s view, this is
persuasive evidence, which is further supported by circumstantial evidence.
457. The evidence shows that already in 1992 and 1993 Milan Marti}, as Minister of the Interior,
considered attacking Zagreb as a response to Croatian attacks on RSK cities.1230 Moreover, as
President of the RSK on 24 October 1994, Milan Marti} threatened to strike Zagreb with rockets if
the situation deteriorated.1231
458. The Trial Chamber recalls that following the start of Operation Flash in the early morning
hours on 1 May 1995, the Chief of the SVK Main Staff General Milan ^eleketi} deployed the M-87
Orkan unit to Vojni} 50 kilometres south of Zagreb. The Trial Chamber further recalls that during a
meeting which was held on 1 May 1995, Milan Marti and Milan eleketi were in favour of a nonpeaceful
solution. Following this meeting, at 1300 hours and in the presence of Milan Marti}, Milan
^eleketi} issued an order to several military commanders to shell Sisak.1232 The evidence shows
that Sisak was shelled at 1700 hours on 1 May 1995. The Trial Chamber finds that the abovementioned
evidence establishes that Milan Marti} was involved from the beginning in the RSK’s
military response to Operation Flash. The Trial Chamber notes the evidence of Patrick Barriot that
Milan Marti} merely took responsibility for the ordering of the shelling of Zagreb, and that Patrick
Barriot came to this conclusion on “an analysis of his personality”.1233 In light of the significant
evidence to the contrary presented above, the Trial Chamber finds his testimony unconvincing.
459. The Trial Chamber recalls that according to the RSK Constitution, the President led the
SVK in times of peace and war in accordance with the Constitution and the decisions of the
Supreme Defence Council.1234 Accordingly, any decision to shell Zagreb should have been taken by
the collegiate body of the Supreme Defence Council. However, the evidence establishes that Milan
Marti and Milan eleketi circumvented the Supreme Defence Council. The Trial Chamber recalls
the evidence of Rade Ra{eta, Chief of Security of the SVK Main Staff, that the decisions to shell
Zagreb on 2 and 3 May 1995 were not taken by the Supreme Defence Council but by the SVK
1230 See supra section III G 3.
1231 Ibid.
1232 Ibid.
1233 Patrick Barriot, 9 Nov 2006, T. 10773-10774, 10777-10778, 10 Nov 2006, T. 10841.
1234 See supra para. 155.
Case No. IT-95-11-T 165 12 June 2007
Commander and the President of the RSK.1235 This is further supported by reports of the two RSK
commissions referred to above.1236
460. In light of the totality of the evidence, the Trial Chamber finds beyond reasonable doubt that
Milan Marti} ordered the shelling of Zagreb on 2 and 3 May 1995.
(b) Military targets in Zagreb and the nature of the M/87 Orkan
461. The Defence argues that there were military targets in Zagreb at the time of the attacks on 2
and 3 May 1995, including the Ministry of Interior, Ministry of Defence, Zagreb/Plešo airport
which had a military purpose, and the Presidential Palace.1237 The Trial Chamber notes the report of
2 May 1995 from the SVK Main Staff to the VJ General Staff, which provides that the following
targets in Zagreb were fired at by Orkan rockets on that day: the Ministry of Defence, the
Presidential Palace and Zagreb/Ple{o airport.1238 The Trial Chamber notes that of these targets, the
only one that was hit was Zagreb/Plešo airport, where one bomblet landed in a parking lot.1239 The
report also provides that “according to our source, the Ministry of Defence in Kri`ani}eva Street
was hit.” However, the Trial Chamber notes that the Ministry of Defence is not located in this street
but in the nearby Baureova Street.1240 The Trial Chamber notes that two police buildings in Matica
Hrvatska Street also received damage, to the roof and upper floors, on 2 May 1995.1241 However, as
will be shown below, the presence or otherwise of military targets in Zagreb is irrelevant in light of
the nature of the M-87 Orkan.
462. The M-87 Orkan is a non-guided projectile, the primary military use of which is to target
soldiers and armoured vehicles.1242 Each rocket may contain either a cluster warhead with 288 socalled
bomblets or 24 anti-tank shells.1243 The evidence shows that rockets with cluster warheads
containing bomblets were launched in the attacks on Zagreb on 2 and 3 May 1995.1244 Each
bomblet contains 420 pellets of 3mm in diameter.1245 The bomblets are ejected from the rocket at a
1235 See supra para. 321.
1236 Ibid.
1237 Defence Final Trial Brief, paras 90, 147. See also Ex. 1042, Tab 2; Ex. 1043, Tab 2, DVD 1, pp 31, 37, 42.
1238 Ex. 95, p. 3.
1239 Branko Lazarevi}, 14 Jun 2006, T. 5629; Ex. 810; Ex. 1042, Tab 2; Ex. 1043, Tab 2, DVD 1, pp 1-2.
1240 Branko Lazarevi}, 15 Jun 2006, T. 5663-5664 (testifying that the Ministry complex is 300 by 400 metres and
includes military facilities and institutions); Ex. 1042, Tab 2; Ex. 1043, Tab 2, DVD 1, pp 30-31; Ex. 814; Jo`ef Poje, 7
Jun 2006, T. 5211.
1241 Ex. 808, F-86 to F-89; Ex. 807, F-34 to F-68; Ex. 806; Branko Lazarevi}, 14 Jun 2006, T. 5628, 15 Jun 2006, T.
5676, 5678.
1242 Jo`ef Poje, 6 Jun 2006, T. 5067-5068, 5136; Ex. 7, p. 38.
1243 Ex. 7, pp 23, 44; Jo`ef Poje, 6 Jun 2006, T. 5068-5069. See also Ex. 94, p. 8; Jo`ef Poje, 6 Jun 2006, T. 5103, 5129-
5130, 5133-5134.
1244 Jo`ef Poje, 7 Jun 2006, T. 5159; Reynaud Theunens, 27 Jan 2006, T. 824-825; Ex. 772; Ex. 775; Branko Lazarevi},
15 Jun 2006, T. 5689; Ex. 809, F-65, F-66.
1245 Jo`ef Poje, 6 Jun 2006, T. 5133; Ex. 7, p. 23; Ex. 94, p. 8.
Case No. IT-95-11-T 166 12 June 2007
height of 800-1,000m above the targeted area and explode upon impact, releasing the pellets.1246
The maximum firing range of the M-87 Orkan is 50 kilometres.1247 The dispersion error of the
rocket at 800-1,000m in the air increases with the firing range. Fired from the maximum range, this
error is about 1,000m in any direction.1248 The area of dispersion of the bomblets on the ground is
about two hectares.1249 Each pellet has a lethal range of ten metres.1250
463. The evidence shows that the M-87 Orkan was fired on 2 and 3 May 1995 from the Vojni
area, near Slavsko Polje, between 47 and 51 kilometres from Zagreb. However, the Trial Chamber
notes in this respect that the weapon was fired from the extreme of its range. Moreover, the Trial
Chamber notes the characteristics of the weapon, it being a non-guided high dispersion weapon.
The Trial Chamber therefore concludes that the M-87 Orkan, by virtue of its characteristics and the
firing range in this specific instance, was incapable of hitting specific targets. For these reasons, the
Trial Chamber also finds that the M-87 Orkan is an indiscriminate weapon, the use of which in
densely populated civilian areas, such as Zagreb, will result in the infliction of severe casualties. By
2 May 1995, the effects of firing the M-87 Orkan on Zagreb were known to those involved.1251
Furthermore, before the decision was made to once again use this weapon on Zagreb on 3 May
1995, the full impact of using such an indiscriminate weapon was known beyond doubt as a result
of the extensive media coverage on 2 May 1995 of the effects of the attack on Zagreb.
(c) Defence argument on reprisals
464. The Defence submits that the shelling of Zagreb may be considered lawful reprisal, carried
out with the aim of putting an end to violations of international humanitarian law committed by “the
Croatian military and police forces”.1252 In particular, the Defence submits that the shelling of
1246 Jo`ef Poje, 6 Jun 2006, T. 5129-5130, 5133; Ex. 7, pp 23, 44; Ex. 94, p. 8.
1247 Jo`ef Poje, 6 Jun 2006, T. 5066-5067; Ex. 7, p. 47.
1248 Firing a rocket from a distance of 49 kilometres results in an elliptical area of dispersion of 972m by 1032m, Jo`ef
Poje, 6 Jun 2006, T. 5100-5103; Ex. 776; Ex. 778; Ex. 779. See also Ex. 777 (showing the area of dispersion for the
distance of 40 kilometres). Rade Ra{eta, 2 May 2006, T. 3939, testified that “persons who are familiar with these
artillery pieces knew that they were intended for targeting wider areas and not points, and that as such they could entail
a lot of casualties”. In this respect, Jo`ef Poje testified that it would have been easy to conclude what the consequences
of using the Orkan would be, however allowed for the possibility that not everyone is familiar with the consequences of
using this weapon, Jo`ef Poje, 6 Jun 2006, T. 5113-5114. See also Jo`ef Poje, 6 Jun 2006, T. 5064-5065, 5108, 5118, 7
Jun 2006, T. 5155-5156, 5190-5192, 5233-5234; Ex. 7, pp 19, 38, 61, 66-68.
1249 Ex. 7, p. 23; Jo`ef Poje, 6 Jun 2006, T. 5069; Ex. 94, p. 8; Ex. 771. If the warhead opens along the edge of the
dispersion ellipse, it is possible that part of the bomblets fall outside of the ellipse, by approximately 100 m (since the
surface area on which the bomblets drop is two hectares), Jo`ef Poje, 6 Jun 2006, T. 5103.
1250 Ex. 7, pp 23, 44.
1251 See supra section III G 2.
1252 Defence Final Trial Brief, paras 86-93. See also paras 114-136. This argument was contested by the Prosecution,
see Prosecution Closing Argument, 10 Jan 2006, T. 11221-11223.
Case No. IT-95-11-T 167 12 June 2007
Zagreb was a reaction to Operation Flash, which was in breach of the cease fire agreement, and
“conducted without any respect to the norms of international humanitarian law”.1253
465. In the law of armed conflict, belligerent reprisals are acts resorted to by one belligerent
which would otherwise be unlawful, but which are rendered lawful by the fact that they are taken in
response to a violation of that law committed by the other belligerent.1254 Reprisals are therefore
drastic and exceptional measures employed by one belligerent for the sole purpose of seeking
compliance with the law of armed conflict by the opposite party. It follows that reprisals, in order to
be considered lawful, are subject to strict conditions. These conditions are well-established in
customary law and are set forth below.1255
466. Reprisals may be used only as a last resort and only when all other means have proven to be
ineffective.1256 This limitation entails that reprisals may be exercised only after a prior and formal
warning has been given, which has failed to put an end to the violations committed by the
adversary.1257 In addition, reprisals may only be taken after a decision to this effect has been made
at the highest political or military level. 1258
467. A further requirement is that the measures taken must be proportionate to the initial
violation of the law of armed conflict of the opposite party.1259 According to this condition, the
reprisals must cease as soon as they have achieved their purpose of putting an end to the breach
which provoked them.1260 Finally, acts of reprisal must respect the “laws of humanity and dictates
of public conscience”.1261 The Trial Chamber interprets this condition to mean that reprisals must
1253 Defence Final Trial Brief, para. 125.
1254 Commentary ICRC, para. 3427, citing the definition of reprisal adopted by the Institut de droit international in
Annuaire 708-11, 1934 and defining reprisal as follows: “compulsory measures, derogating from the ordinary rules of
such law, taken by a belligerent following unlawful acts to its detriment committed by another belligerent and which
intend to compel the latter, by injuring it, to observe the law”.
1255 See Commentary ICRC on Additional Protocols, para. 3457, which reports that the discussion about the issue of
reprisal at the Diplomatic Conference on the adoption of the Additional Protocols to the Geneva Conventions showed
agreement among the States on some minimum restrictions, as spelled out in the main text. Kupreski} et al. Trial
Judgement, para. 535.
1256 Ibid. For example, the YPA Military Manual of the SFRY (FRY) (1988), para. 29 states that “before they undertake
reprisals, the armed forces of the SFRY shall try to force the enemy to respect the laws of war by means of other
methods for preventing violations of such laws”. A similar wording is contained in the military manuals of numerous
States, including, inter alia, Canada, LOAC Manual (1999), p. 15-3, para. 17; United States, Field Manual (1956), para.
497(b); Germany, Military Manual (1992), para. 478; Netherlands, Military Manual (1993), p. IV-5; United Kingdom
Military Manual (1958), para. 646; Ecuador’s Naval Manual (1989), para. 6.2.3.1; New Zealand, Military Manual
(1992), para. 1606(4)(c) and (d); Spain, LOAC Manual (1996), Vol. I, para.2.3.b. (6). Several of the above references to
military manuals were extracted from Customary International Humanitarian Law, Volume II, pp 3328-3337.
1257 Commentary ICRC on Additional Protocols, para. 3457; Kupreski} et al. Trial Judgement, para. 535.
1258 Ibid.
1259 Commentary ICRC on Additional Protocols, para. 3457; Kupreski} et al. Trial Judgement, para. 535.
1260 Ibid.
1261 Ibid.
Case No. IT-95-11-T 168 12 June 2007
be exercised, to the extent possible, in keeping with the principle of the protection of the civilian
population in armed conflict and the general prohibition of targeting civilians.1262
468. The Trial Chamber finds that the evidence presented to the Trial Chamber regarding the
shelling of Zagreb fails to show that the conditions for lawful reprisals have been met. First, even if
the Trial Chamber was to assume that the Croatian forces had engaged in serious violations of
international humanitarian law during Operation Flash, the evidence shows that the shelling was not
carried out as a last resort, after having exhausted all other means. Indeed, the Trial Chamber has
been provided with evidence that peace negotiations were ongoing during Operation Flash, until 3
May 1995.1263 Furthermore, no formal warning was given prior to the shelling that acts of reprisals
would be carried out in reaction to the alleged violations conducted during Operation Flash.1264 The
Trial Chamber cannot therefore find that the shelling of Zagreb constituted a lawful reprisal and
does not consider it necessary to analyse the issue of reprisal any further. The Defence argument, in
this regard, is consequently dismissed.
(d) General requirements of Article 3 and Article 5 of the Statute
469. The Trial Chamber recalls its findings concerning the existence of an armed conflict in the
territories relevant to the crimes charged in the Indictment. The Trial Chamber considers the
shelling of Zagreb on 2 and 3 May 1995, and the crimes in relation to this shelling with which
Milan Marti has been charged, were related to the armed conflict in such a way as to meet the
relevant general requirements of Article 3 and Article 5 of the Statute. Moreover, in particular due
to the characteristics of the M-87 Orkan and due to the large-scale nature of the attack, the Trial
Chamber finds that the shelling constituted a widespread attack directed against the civilian
population of Zagreb. Furthermore, the Trial Chamber considers it proven beyond doubt that Milan
Marti} was aware of this attack on the civilian population and that his ordering of the shelling
formed part of the attack. The Trial Chamber therefore concludes that the general requirements of
Article 3 and Article 5 of the Statute have been met.
1262 See supra section II E.
1263 See supra para. 302.
1264 See supra section III G 1-2. In this regard, the Trial Chamber notes that the threat to shell Zagreb given by Milan
Marti} to Ambassador Peter Galbraith on 24 October 1994 cannot be considered a warning for the purpose of reprisal
for at least three reasons: it was given long before Operation Flash commenced, it was not addressed directly to the
Croatian authorities, and it lacked any elements of formality. The same is true for the speech given by Milan Marti} on
10 February 1995 to the SVK commanding officers and for the interview of Milan eleketi reported in a newspaper
article on 24 March 1995. The Trial Chamber notes also that with regard to the interview of Milan eleketi, it could
not be considered as a warning for the purpose of reprisal since it was not given by the highest political or military
authority.
Case No. IT-95-11-T 169 12 June 2007
(e) Counts 15 and 16 – Murder
470. The Trial Chamber finds that the deaths of Ana Muteveli}, Damir Dra~i}, Stjepan Krhen,
Ivanka Kova~, Ivan Brodar, Luka Skra~i} and Ivan Markulin were caused as a result of the rocket
attacks on Zagreb, which were ordered by Milan Marti. Having regard in particular to the Trial
Chamber’s findings concerning the nature of the M-87 Orkan and that Milan Marti, who ordered
the use of the M-87 Orkan, was aware that death was a probable consequence of this attack, the
Trial Chamber finds that the mental element of the crime of murder is established. The Trial
Chamber recalls that Ivan Markulin was a member of the Croatian MUP and that he was in the
process of deactivating a bomb at the time of his death and was not taking an active part in the
hostilities. The Trial Chamber therefore finds that Milan Marti bears individual criminal
responsibility under Article 7(1) of the Statute for Counts 15 and 16 for the murder of Ana
Muteveli}, Damir Dra~i}, Stjepan Krhen, Ivanka Kova~, Ivan Brodar, and Luka Skra~i}. The Trial
Chamber further finds that Milan Marti bears individual criminal responsibility under Article 7(1)
of the Statute for Count 16 for the murder of Ivan Markulin.
(f) Counts 17 and 18 – Inhumane acts under Article 5(i) and cruel treatment under Article 3
471. The Trial Chamber finds that the evidence from persons injured during the shelling of
Zagreb is representative of the injuries and suffering caused to the 214 persons who were injured on
2 and 3 May 1995. The Trial Chamber therefore concludes that the shelling caused serious mental
and/or physical suffering to those injured. The Trial Chamber considers that Milan Marti knew that
the shelling was likely to cause such suffering, and thus intentionally committed acts which amount
to cruel treatment under Article 3 and inhumane acts under Article 5 against these persons. The
Trial Chamber recalls that of the persons injured, 7 were not civilians. The Trial Chamber therefore
finds Milan Marti incurs individual criminal responsibility under Article 7(1) of the Statute for
Count 17, other inhumane acts under Article 5(i), and for Count 18 for cruel treatment under Article
3 in relation to 207 victims and for Count 18, cruel treatment under Article 3, in relation to the other
7 victims.
(g) Count 19 – Attacks on civilians under Article 3
472. In examining the responsibility of Milan Marti for the crime of attacks on civilians under
Article 3, the Trial Chamber recalls that a direct attack on civilians may be inferred from the
indiscriminate character of the weapon used. The Trial Chamber has previously found that the M-87
Orkan was incapable of hitting specific targets.1265 The Trial Chamber has also found that these
1265 See supra section IV B 4 (b).
Case No. IT-95-11-T 170 12 June 2007
attacks resulted in death and serious injury to the civilian population. Having regard in particular to
the nature of the M-87 Orkan and the finding that Milan Marti knew of the effects of this weapon,
the Trial Chamber finds that Milan Marti wilfully made the civilian population of Zagreb the
object of this attack. Milan Marti therefore incurs individual criminal responsibility under Article
7(1) of the Statute for Count 19, attacks on civilians under Article 3.
(h) Count 1 – Persecution
473. The Trial Chamber recalls the situation prevailing prior to the shelling of Zagreb, including
the launch of Operation Flash by Croatian armed forces. Moreover, the Trial Chamber recalls that
prior to the shelling of Sisak and Zagreb, Milan Marti considered the shelling of Croatian cities as
a response to Croatian attacks on RSK cities. However, the Trial Chamber has not found any
evidence which would persuade it beyond reasonable doubt that Milan Marti intended to commit
such attacks, including the attacks which were eventually carried out on Zagreb on 2 and 3 May
1995, with discriminatory intent on the basis of ethnicity. Rather, the evidence shows that Milan
Marti intended to shell the city of Zagreb in order to retaliate on Croatia and to stop further
Croatian attacks on the RSK. While an attack on a city, such as in this case, is without doubt grave,
the Trial Chamber cannot find that it establishes in and of itself that it was carried out with the
requisite intent. The Trial Chamber therefore concludes that the elements of the crime of
persecution (Count 1) have not been established.
C. Cumulative convictions
474. Cumulative convictions, that is multiple convictions entered under different statutory
provisions in relation to the same conduct, are permissible only if each statutory provision involved
has a materially distinct element not contained in the other. An element is materially distinct from
another if it requires proof of a fact not required by the other element. Where this test is not met, the
Trial Chamber will enter a conviction only under the more specific provision.1266
475. Milan Marti} has been found criminally responsible for the crime of persecution (Count 1)
and for the crimes charged in Counts 3 to 19.1267 The acts underlying the findings of persecution
include the acts underlying the findings of the crimes under Counts 3 to 14. Persecution requires a
1266 elebii Appeal Judgement, paras 412-413. This test has been further clarified by the Appeals Chamber in Kordi}
and ^erkez as follows: “when applying the elebii test, what must be considered are the legal elements of each
offence, not the acts or omissions giving rise to the offence. What each offence requires, as a matter of law, is the
pertinent inquiry. The Appeals Chamber will permit multiple convictions for the same act or omission where it clearly
violates multiple distinct provisions of the Statute, where each statutory provision contains a materially distinct element
not contained in the other(s), and which element requires proof of a fact which the elements of the other statutory
provision(s) do not. …”, Kordi} and ^erkez Appeal Judgement, para. 1033 (footnotes omitted). See also Kunarac et
al. Appeal Judgement, para. 177; Staki} Appeal Judgement, paras 355-358.
Case No. IT-95-11-T 171 12 June 2007
materially distinct element that is not present as an element in any of the other crimes, that is proof
that the act or omission discriminated in fact and that the act or omission was committed with the
specific intent to discriminate on the basis of one of the grounds listed in Article 5.1268 The other
crimes under Counts 3 to 14 require proof of materially distinct elements, which are not present in
the crime of persecution. As a result, cumulative conviction is permissible for persecution and for
the crimes found to have been committed under Counts 3 to 14.
476. Milan Marti} has been found criminally responsible for the following crimes, charged under
Article 3 and Article 5 of the Statute, which are based on the same conduct: murder as a crime
against humanity (Count 3) and murder as a violation of the laws and customs of war (Count 4),1269
torture as a crime against humanity (Count 6) and torture as a violation of the laws or customs of
war (Count 8),1270 inhumane acts as a crime against humanity (Count 7) and cruel treatment as a
violation of the laws or customs of war (Count 9),1271 murder as a crime against humanity (Count
15) and murder as a violation of the laws and customs of war (Count 16),1272 and inhumane acts as
a crime against humanity (Count 17) and cruel treatment as a violation of the laws or customs of
war (Count 18).1273 Crimes under Article 3 of the Statute require a materially distinct element to be
proven which is not required for the crimes under Article 5 of the Statute, that is the nexus between
the acts of the accused and the armed conflict. Crimes under Article 5 of the Statute require a
materially distinct element that is not required for the crimes under Article 3 of the Statute, a
widespread or systematic attack directed against any civilian population. Therefore, cumulative
convictions are permissible under Article 3 and Article 5.1274
477. Milan Marti} has been found criminally responsible for the crimes of torture (Count 6) and
inhumane acts (Count 7) as crimes against humanity, in relation to the same conduct.1275 The crime
of torture has a materially distinct element, that is, the act or omission must have been carried out
for a prohibited purpose. This element is not required for the crime of inhumane acts. However, the
crime of inhumane acts does not require proof of a materially distinct element.1276 Accordingly, a
cumulative conviction for the two crimes is not permissible and the Trial Chamber will enter a
conviction for the crime of torture only. The same reasoning applies to the crime of torture and the
1267 See supra section IV A, B.
1268 Staki} Appeal Judgement, paras 359-364; Kordi} and ^erkez Appeal Judgement, para. 1041.
1269 See supra paras 354, 359, 364, 365, 368, 373, 379, 386-389, 392, 400.
1270 See supra paras 410, 415.
1271 See supra paras 410, 415, 419, 424.
1272 See supra para. 471.
1273 See supra para. 472.
1274 Jeliši} Appeal Judgement, para. 82.
1275 See supra paras 410, 415.
1276 Kunarac et al. Appeal Judgement, paras 142, 144, confirming Kunarac et al. Trial Judgement, para. 497. See also
Br|anin Trial Judgement, para. 481; Krnojelac Trial Judgement, para. 181.
Case No. IT-95-11-T 172 12 June 2007
crime of cruel treatment as violations of laws and customs of war, for which Milan Marti has been
found criminally responsible in relation to the same conduct.1277
478. In relation to the shelling of Zagreb, Milan Marti} has been found criminally responsible for
the crimes of murder (Count 16), cruel treatment (Count 18), and attacks on civilians (Count 19), all
violations of laws and customs of war under Article 3.1278 These crimes are based on the same
conduct. The crime of attacks on civilians requires the existence of an attack directed against a
civilian population, the killings of, or infliction of serious bodily injury to, civilians as a
consequence of the attack, and the intent to make the civilian population the object of attack. As the
crime of attacks on civilians requires materially distinct elements not required for murder or cruel
treatment, the latter crimes are absorbed by the crime of attacks on civilians. As a result, cumulative
conviction for these crimes is not permissible and the Trial Chamber will only enter a conviction for
the crime of attacks on civilians.1279
D. Summary of the Trial Chamber’s findings in relation to each count
479. The Trial Chamber finds Milan Marti NOT GUILTY of:
Count 2: Extermination, a crime against humanity
480. The Trial Chamber finds Milan Marti GUILTY pursuant to Article 7(1) of the Statute on
the following counts:
Count 1: Persecutions, a crime against humanity;1280
Count 3: Murder, a crime against humanity;1281
Count 4: Murder, a violation of the laws or customs of war;1282
Count 5: Imprisonment, a crime against humanity;1283
Count 6: Torture, a crime against humanity;1284
Count 7: Inhumane acts, a crime against humanity;1285
1277 See supra paras 410, 415, 419, 422.
1278 See supra paras 471, 472, 473.
1279 Strugar Trial Judgement, para. 449.
1280 See supra paras 358, 363, 367, 370, 377-378, 383, 398-399, 403, 411, 416, 432. Hence acquitting Milan Marti} as
to the rest of the charges under Count 1, see supra paras 384, 403, 419, 422, 425,474.
1281 See supra paras 354, 359, 364-365, 368, 373, 379, 386-389, 392, 400. Hence acquitting Milan Marti} as to the rest
of the charges under Count 3, see supra paras 387, 389-393, 401.
1282 See supra paras 354, 359, 364-365, 368, 373, 379, 386-389, 391-392, 400. Hence acquitting Milan Marti} as to the
rest of the charges under Count 4, see supra paras 389-393, 401.
1283 See supra paras 410, 412. Hence acquitting Milan Marti} as to the rest of the charges under Count 5, see supra
paras 417, 422, 423.
1284 See supra paras 410, 415. Hence acquitting Milan Marti} as to the rest of the charges under Count 6, see supra
paras 419, 422, 424.
1285 See supra paras 410, 415, 419, 424. Hence acquitting Milan Marti} as to the rest of the charges under Count 7, see
supra para. 422, 424.
Case No. IT-95-11-T 173 12 June 2007
Count 8: Torture, a violation of the laws or customs of war;1286
Count 9: Cruel treatment, a violation of the laws or customs of war;1287
Count 10: Deportation, a crime against humanity;1288
Count 11: Forcible transfer, a crime against humanity;1289
Count 12: Wanton destruction of villages, or devastation not justified by military
necessity, a violation of the laws or customs of war;1290
Count 13: Destruction or wilful damage done to institutions dedicated to education or
religion, a violation of the laws or customs of war;1291
Count 14: Plunder of public or private property, a violation of the laws or customs of
war;1292
Count 15: Murder, a crime against humanity;1293
Count 16: Murder, a violation of the laws or customs of war;1294
Count 17: Inhumane acts, a crime against humanity;1295
Count 18: Cruel treatment, a violation of the laws or customs of war;1296
Count 19: Attacks on civilians, a violation of the laws or customs of war.1297
While the Trial Chamber has found that the elements have been established for the crimes charged
under Count 16 and Count 18, in view of the fact that these crimes are absorbed by the crime of
attacks on civilians under Count 19, the Trial Chamber will only enter a conviction with respect to
the crime of attacks on civilians.
V. SENTENCING LAW AND FACTS
A. Applicable law
481. The relevant provisions covering sentencing are set out in Article 24 of the Statute and Rule
101 of the Rules of Procedure and Evidence. Article 24 of the Statute provides:
1286 See supra paras 410, 415, 419, 422. Hence acquitting Milan Marti} as to the rest of the charges under Count 8, see
supra paras 424.
1287 See supra paras 410, 415, 419, 422, 424. Hence acquitting Milan Marti} as to the rest of the charges under Count 9,
see supra para. 424.
1288 See supra para. 431.
1289 See supra para. 429.
1290 See supra paras 360, 374-375, 381. Hence acquitting Milan Marti} as to the rest of the charges under Count 12, see
supra paras 355, 366, 385, 394, 397, 402.
1291 See supra paras 361, 395. Hence acquitting Milan Marti} as to the rest of the charges under Count 13, see supra
paras 356, 366, 369, 380, 385, 397.
1292 See supra paras 357, 382. Hence acquitting Milan Marti} as to the rest of the charges under Count 14, see supra
paras 362, 376, 385, 396-397.
1293 See supra para. 471.
1294 See supra para. 471.
1295 See supra para. 472.
1296 See supra para. 472.
1297 See supra para. 473.
Case No. IT-95-11-T 174 12 June 2007
1. The penalty imposed by the Trial Chamber shall be limited to imprisonment. In determining the
terms of imprisonment, the Trial Chambers shall have recourse to the general practice regarding
prison sentences in the courts of the former Yugoslavia.
2. In imposing the sentences, the Trial Chambers should take into account such factors as the
gravity of the offence and the individual circumstances of the convicted person.
3. In addition to imprisonment, the Trial Chambers may order the return of any property and
proceeds acquired by criminal conduct, including by means of duress, to their rightful owners.
Rule 101 of the Rules of Procedure and Evidence provides:
(A) A convicted person may be sentenced to imprisonment for a term up to and including the
remainder of the convicted person’s life.
(B) In determining the sentence, the Trial Chamber shall take into account the factors
mentioned in Article 24, paragraph 2, of the Statute, as well as such factors as:
(i) any aggravating circumstances;
(ii) any mitigating circumstances including the substantial cooperation with the Prosecutor by the
convicted person before or after conviction;
(iii) the general practice regarding prison sentences in the courts of the former Yugoslavia;
(iv) the extent to which any penalty imposed by a court of any State on the convicted person for
the same act has already been served, as referred to in Article 10, paragraph 3, of the Statute.
(C) Credit shall be given to the convicted person for the period, if any, during which the
convicted person was detained in custody pending surrender to the Tribunal or pending trial or
appeal.
These provisions set forth factors to be taken into consideration by the Trial Chamber when
deciding a sentence.1298 They do not constitute binding limitations on the Trial Chamber’s discretion
to impose a sentence,1299 which must always be decided based on the facts of each particular
case.1300
482. The Appeals Chamber has held that the sentencing practice of the Tribunal in cases
involving similar circumstances is but one factor which a Chamber must consider when exercising
its discretion in imposing a sentence.1301
The Appeals Chamber has held that comparisons between
cases as regards sentencing are not reliable as the sole basis for sentencing.1302 On the other hand,
“a previous decision on sentence may indeed provide guidance if it relates to the same offence and
was committed in substantially similar circumstances”.1303 However, this assistance may be
limited,1304 as “when comparing a case to the same offence committed in substantially similar
circumstances, the Trial Chamber still has an overriding obligation to tailor a penalty to fit the
1298 Rule 101(B) of the Rules. See also Krsti Appeal Judgement, para. 241; elebii Appeal Judgement, para. 716.
1299 Krsti Appeal Judgement, paras 241-242; elebii Appeal Judgement, paras, 715, 718, 780. See also Kambanda
Appeal Judgement, para. 124; Furundžija Appeal Judgement, para. 238.
1300 Krsti Appeal Judgement, para. 241; Jelisi Appeal Judgement, para. 101; elebii Appeal Judgement, para. 717.
1301 Krsti Appeal Judgement, para. 248; elebii Appeal Judgement, para. 757.
1302 elebii Appeal Judgement, para. 719.
1303 Momir Nikoli Sentencing Appeal Judgement, para. 38, citing Furund‘jia Appeal Judgement, para. 250; elebii
Appeal Judgement, para. 720.
1304 elebii Appeal Judgement, para. 721.
Case No. IT-95-11-T 175 12 June 2007
gravity of the crime and the individual circumstances of the accused, which include the
consideration of both aggravating and mitigating circumstances.”1305
483. The Prosecution recalls the sentencing judgement of Milan Babi}, who was sentenced by the
Tribunal to a period of 13 years’ imprisonment for his criminal conduct, to which he pled guilty.
The Prosecution submits that the culpability of Milan Marti} should be compared with that of Milan
Babi}, whose conduct occurred within a more limited time (1 August 1991 to 15 February 1992),
who cooperated with the Tribunal, and who testified in three trials and therefore received a lower
sentence than he otherwise might have.1306 The Trial Chamber considers that guidance may be had
from the Babi} case, however such guidance will necessarily be limited.
1. Principles and purposes of sentencing
484. The jurisprudence of the Tribunal has consistently held that the main purposes of sentencing
for crimes within the jurisdiction of the Tribunal are deterrence and retribution.1307 The penalties
imposed by the Tribunal must, in general, have sufficient deterrent value to dissuade those who
would consider committing similar crimes from doing so.1308 However, deterrence “must not be
accorded undue prominence in the overall assessment of the sentences to be imposed on persons
convicted by the International Tribunal”.1309 Moreover, “unlike vengeance, retribution incorporates
a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and
nothing more”.1310 However, a sentence imposed “should make plain the condemnation of the
international community of the behaviour in question.”1311 A third purpose of sentencing is
rehabilitation which, while it may be considered a relevant factor, “is not one which should be
given undue weight”.1312
2. Gravity and individual circumstances of the convicted person
485. Article 24(2) of the Statute provides that in imposing sentences Trial Chambers should take
into account such factors as the gravity of the offence and the individual circumstances of the
convicted person. The Appeals Chamber has held that the gravity of the offence is a primary
1305 Momir Nikoli Sentencing Appeal Judgement, para. 38, citing elebii Appeal Judgement, paras 717, 719.
1306 Prosecution Closing Argument, 10 Jan 2007, T. 11231.
1307 elebii Appeal Judgement, para. 806; Aleksovski Appeal Judgement, para. 185. See also Furund‘ija, Trial
Judgement, para. 288; Tadi} Sentencing Judgement, paras 7-9; Kupreški} et al. Trial Judgement, para. 848. As regards
deterrence, see also elebii Appeal Judgement, para. 800, citing Tadi Jurisdiction Decision, para. 72.
1308 Kordi and erkez Appeal Judgement, para. 1078.
1309 Kordi and erkez Appeal Judgement, para. 1078; elebii Appeal Judgement, para. 801; Aleksovski Appeal
Judgement, para. 185; Tadi Sentencing Appeal Judgement, para. 48.
1310 Kordi and erkez Appeal Judgement, para. 1075 (emphasis in original). See also Aleksovski Appeal Judgement,
para. 185; Dragan Nikoli Sentencing Judgement, para. 140.
1311 Aleksovski Appeal Judgement, para. 185, citing Erdemovi Sentencing Judgement, paras 64-65.
Case No. IT-95-11-T 176 12 June 2007
consideration in imposing a sentence.1313 There is no hierarchy of crimes within the jurisdiction of
the Tribunal.1314 Sentences must reflect the inherent gravity or totality of the criminal conduct of
the accused, requiring a consideration of the particular circumstances of the case, as well as the
form and degree of the participation of the accused in the crime.1315
486. The Appeals Chamber has found that factors to be considered include the discriminatory
nature of the crimes where this is not considered as an element of a conviction,1316 and the
vulnerability of the victims.1317 The Appeals Chamber has also held that the consequences of the
crime upon the victim directly injured is always relevant to sentencing;1318
further factors, such as
the effects of the crime on relatives of the immediate victims, may also be considered.1319
487. The Prosecution submits that the crimes with which Milan Marti is charged are of serious
gravity and directs the Trial Chamber’s attention to persecutions as a crime against humanity and
crimes involving the intentional deprivation of life.1320 The Prosecution further submits that the
targeted group in this case was predominantly civilian and included women, children and the
elderly.1321
488. Milan Marti} has been found responsible for, inter alia, the crimes of murder,
imprisonment, torture, cruel treatment, destruction, including of buildings dedicated to religion as
well as plunder, directed against people of Croat ethnicity. Many of these crimes were committed
with discriminatory intent. The Trial Chamber agrees with the Prosecution that the fact that the
crimes were committed with discriminatory intent is a factor to be taken into consideration when
assessing the gravity of the criminal conduct of Milan Marti.
489. Milan Marti} has also been found guilty of the crimes of deportation and other inhumane
acts (forcible transfer). The Trial Chamber particularly notes that the non-Serb population was
subjected to widespread and systematic crimes, including killings, beatings, and crimes against
1312 elebii Appeal Judgement, para. 806. See also Deronji Sentencing Appeal Judgement, paras 135-137; Staki
Appeal Judgement, paras 400-402.
1313 Blaski Appeal Judgement, para. 683; elebii Appeal Judgement, para. 731; Kupreški et al. Appeal Judgement,
para. 442. See also Aleksovski Appeal Judgement, para. 182.
1314 Staki Appeal Judgement, para. 375.
1315 Blaški Appeal Judgement, para. 683, citing Furund`ija Appeal Judgement, para. 249. See also Èelebiæi Appeal
Judgement para. 731, citing Kupreški et al. Trial Judgement, para. 852, cited in the Aleksovski Appeal Judgement at
para. 182. See also elebii Appeal Judgement, para. 769; Staki Trial Judgement, para. 903.
1316 Kvoka et al. Trial Judgement, para. 702.
1317 Bla{ki Appeal Judgement, para. 683; Kunarac et al. Appeal Judgement, para. 352.
1318 Blaški Appeal Judgement, para. 683; Krnojelac Trial Judgement, para. 512.
1319 Blaški Appeal Judgement, para. 683; Krnojelac Appeal Judgement, para. 260. The Trial Chamber in elebii held
that: “The gravity of the offences of the kind charged has always been determined by the effect on the victim or, at the
most, on persons associated with the crime and nearest relations. Gravity is determined in personam and is not one of a
universal effect,” elebii Trial Judgement, para. 1226.
1320 Prosecution Final Trial Brief, para. 478.
1321 Prosecution Final Trial Brief, para. 480; Prosecution Closing Argument, 10 Jan 2007, T. 11234.
Case No. IT-95-11-T 177 12 June 2007
property, as a result of the coercive atmosphere in the SAO Krajina and the RSK between 1991 and
1995, and that as a result almost all of the Croat and other non-Serb population were forcibly
displaced. The scale and systematic nature of these crimes are factors which the Trial Chamber
considers to be of particular gravity.
490. The Trial Chamber recalls that the majority of the crimes for which Milan Marti} has been
found guilty were committed against elderly persons or against people held in detention.
Furthermore, the majority of the victims were civilians. The special vulnerability of these groups of
victims adds to the gravity of the crimes for which Milan Marti} has been found guilty.
491. The Trial Chamber recalls the effects of the crimes committed on victims and their families.
Virtually the entire Croat and other non-Serb population was expelled and many had their houses
and property burnt and looted. Appalling acts of inhumane treatment, including torture, were
committed in detention facilities against Croat and other non-Serb detainees. The Trial Chamber
recalls in particular the testimony of some victims of these crimes concerning the suffering they
endured and continue to endure as a result of these crimes. Moreover, the Trial Chamber recalls the
horrific injuries and the serious suffering inflicted on civilians as a consequence of the
indiscriminate attacks on Zagreb ordered by Milan Marti. The impact and long-lasting effects of
these crimes, for which Milan Marti is individually criminally responsible, including as a direct
perpetrator, render them especially grave.
492. In relation to “the individual circumstances of the convicted person”, the Appeals Chamber
has held that while such circumstances can be either mitigating or aggravating, family concerns
should, in principle, be a mitigating factor.1322 The Trial Chamber will consider this factor in the
following section.
3. Aggravating and mitigating factors
493. The Statute and the Rules require the Trial Chamber to take account of both aggravating and
mitigating circumstances when imposing a sentence.1323 The Appeals Chamber has held that the
weight to be attached to such circumstances is a matter within the Trial Chamber’s discretion.1324
1322 Kunarac et al. Appeal Judgement, para. 362; Erdemovi Second Sentencing Judgement, para. 16; Tadi Sentencing
Judgement, para. 26.
1323 See above Article 24 of the Statute and Rule 101 of the Rules; elebii Appeal Judgement, para. 717.
1324 elebii Appeal Judgement, paras 718, 777, 780; Bla{ki Appeal Judgement, para. 696.
Case No. IT-95-11-T 178 12 June 2007
Factors which a Trial Chamber takes into account as aspects of the gravity of the crime cannot
additionally be taken into account as separate aggravating circumstances, and vice versa.1325
494. While mitigating circumstances not directly related to the offence may be considered, with
regard to aggravating circumstances only those relating directly to the commission of the offence
may be considered.1326 Furthermore, the absence of a mitigating factor can never serve as an
aggravating factor.1327
(a) Aggravating circumstances
495. Aggravating circumstances must be proved by the Prosecution beyond reasonable doubt.1328
Such factors include: (i) the position of the accused, that is, his position of leadership, his level in
the command structure, or his role in the broader context of the conflict of the former
Yugoslavia;1329 (ii) the discriminatory intent1330
or the discriminatory state of mind for crimes for
which such a state of mind is not an element or ingredient of the crime;1331
(iii) the length of time
during which the crime continued;1332
(iv) active and direct criminal participation, if linked to a
high-rank position of command,1333
the accused’s role as fellow perpetrator,1334 and the active
participation of a superior in the criminal acts of subordinates;1335 (v) the informed, willing or
enthusiastic participation in crime;1336 (vi) premeditation and motive;1337 (vii) the sexual, violent,
and humiliating nature of the acts and the vulnerability of the victims;1338 (viii) the status of the
1325 Deronji Sentencing Appeal Judgement, para. 106, citing Krnojelac Trial Judgement, para. 517; Plav{i} Sentencing
Judgement, para. 58; Banovi} Sentencing Judgement, para. 53. See also Momir Nikoli Sentencing Appeal Judgement,
para. 58; Obrenovi} Sentencing Judgement, para. 101; ^e{i} Sentencing Judgement, para. 53.
1326 Kunarac et al. Trial Judgement, para. 850.
1327 Bla{ki Appeal Judgement, para. 687, citing elebii Appeal Judgement, paras 763, 783; Plavši Sentencing
Judgement, para. 64; Kunarac et al. Trial Judgement, para. 847.
1328 Bla{ki Appeal Judgement, para. 686, citing elebii Appeal Judgement, para. 763.
1329 Ibid., citing Joki} Sentencing Judgement, paras 61-62. See also Tadi Sentencing Appeal Judgement, paras 55-56.
The Appeals Chamber in Staki noted that “in considering the superior position in connection with Article 7(1), the
Appeals Chamber recalls that it is settled in the jurisprudence of the Tribunal that superior position itself does not
constitute an aggravating factor. Rather it is the abuse of such position which may be considered an aggravating factor,”
Staki Appeal Judgement, para. 411, citing Kayishema and Ruzindana Appeal Judgement, paras 358-359; Babi
Sentencing Appeal Judgement, para. 80; Kamuhanda Appeal Judgement, para. 347.
1330 Ibid., citing Vasiljevi Appeal Judgement, paras 172-173. See also Vasiljevi Trial Judgement, para. 277, holding
that “the discriminatory purpose of the crimes and the selection of victims based on their ethnicity … can only
constitute an aggravating factor where the crime for which an accused is convicted does not include a discriminatory
state of mind as an element. The crime of persecution in Article 5(h) of the Statute already includes such an element.
Such a discriminatory state of mind goes to the seriousness of the offence, but it may not additionally aggravate that
offence.” (Emphasis added). See also Kunarac et al. Appeal Judgement, para. 357.
1331 Bla{ki Appeal Judgement, para. 686, referring to Kunarac et al. Appeal Judgement, para. 357, citing Tadi} Appeal
Judgement, para. 305. See also Todorovi Sentencing Judgement, para. 57.
1332 Ibid., referring to Kunarac et al. Appeal Judgement, para. 356; Todorovi Sentencing Judgement, para. 65.
1333 Ibid., referring to Krsti Trial Judgement, para. 708.
1334 Ibid., referring to Furundžija Trial Judgement, para. 281.
1335 Ibid., referring to elebii Appeal Judgement, paras 736-737.
1336 Ibid., referring to Jelisi Appeal Judgement, para. 86; Kayishema and Ruzindana Appeal Judgement, para. 351.
1337 Ibid., referring to Krsti Trial Judgement, paras 711-712. See also Krsti} Appeal Judgement, para. 258.
1338 Ibid., referring to Kunarac et al. Trial Judgement, para. 867; Kunarac et al. Appeal Judgement, para. 352.
Case No. IT-95-11-T 179 12 June 2007
victims, their age and number, and the effect of the crimes on them;1339 (ix) civilian detainees;1340
(x) the character of the accused;1341
and (xi) the circumstances of the offences generally.1342
496. Furthermore, it has also been held that the refusal of an accused to testify cannot be taken
into account in the determination of the sentence.1343
497. The Prosecution submits that the fact that the criminal conduct lasted from 1991 to 1995
throughout the Krajina region should be treated as an aggravating factor in sentencing.1344
Moreover, the Prosecution submits that the following additional factors are relevant as aggravating
circumstances: the discriminatory intent with which the crimes were committed (except for the
crime of persecution where discriminatory intent is an element of the crime); the scale of the crimes
(except for the crime of extermination where scale is an element); premeditation of the crimes; the
willing and enthusiastic participation of the accused; and that crimes were committed against
civilian detainees.1345
498. The Trial Chamber recalls that throughout the period relevant for the Indictment, Milan
Marti} held high positions within the SAO Krajina, and subsequently the RSK, including Minister
of Interior and President of the RSK. The evidence shows that Milan Marti} was one of the most
important and influential political figures in the SAO Krajina and the RSK governments and that as
Minister of the Interior he exercised absolute authority over the MUP. As President of the RSK,
Milan Marti held the highest political office and controlled the armed forces of the RSK. The Trial
Chamber considers that in holding such positions, Milan Marti} was obligated to prevent the
commission of crimes and to ensure that all inhabitants of the territories under his authority enjoyed
respect for human rights. However, the evidence presented to the Trial Chamber proves beyond
reasonable doubt that Milan Marti} abused his positions and that he, through continuous and
systematic efforts to create an ethnically Serb territory, promoted an atmosphere of mistrust and
fear between Serbs and non-Serbs, in particular Croats. In doing so, Milan Marti contributed
significantly to the furtherance of the common purpose of the JCE, of which he was a key member
in the SAO Krajina and the RSK. The Trial Chamber considers that these factors are aggravating
circumstances when determining Milan Marti}’s sentence.
1339 Ibid., referring to Kunarac et al. Trial Judgement, paras 864, 866; Kunarac et al. Appeal Judgement, para. 355.
1340 Ibid., referring to Furundžija Trial Judgement, para. 283.
1341 Ibid., referring to elebii Appeal Judgement, para. 788.
1342 Ibid., referring to Tadi Sentencing Judgement, para. 19.
1343 elebii Appeal Judgement, para. 783; Bla{ki Appeal Judgement, para. 687; Plavši Sentencing Judgement, para.
64. See also elebii Appeal Judgement, para. 763; Kunarac et al. Trial Judgement, para. 847, cited in Bla{ki Appeal
Judgement, ibid.
1344 Prosecution Closing Argument, 10 Jan 2007, T. 11231, 11234, 11236.
1345 Prosecution Closing Argument, 10 Jan 2007, T. 11231; Prosecution Final Trial Brief, para. 482.
Case No. IT-95-11-T 180 12 June 2007
499. Furthermore, the Trial Chamber considers that the widespread criminal conduct which
covered the entire territory of the SAO Krajina and the RSK during a period of more than four years
serves as an aggravating circumstance.
500. The Trial Chamber recalls that the vulnerability and status of the victims, as well as the
discriminatory intent associated with the crimes were taken into account in assessing the gravity of
the crimes for which Milan Marti has been found guilty. Therefore, these factors cannot be
additionally considered as aggravating circumstances.
(b) Mitigating circumstances
501. Mitigating factors have to be proven “on a balance of probabilities”, that is “the
circumstance in question must have existed 'more probably than not’.”1346 Factors to be taken into
account may include the following: (i) co-operation with the Prosecution;1347
(ii) the admission of
guilt or a guilty plea;1348
(iii) an expression of remorse;1349
(iv) voluntary surrender;1350
(v) good
character with no prior criminal convictions;1351
(vi) comportment in detention;1352
(vii) personal
and family circumstances;1353 (viii) the character of the accused subsequent to the conflict;1354
(ix)
duress1355
and indirect participation;1356 (x) diminished mental responsibility;1357
(xi) age;1358
and
(xii) assistance to detainees or victims.1359
Poor health is to be considered only in exceptional or
rare cases.1360
502. The Prosecution submits that it cannot identify any mitigating circumstances warranting a
reduction in sentence. Furthermore, the Prosecution submits that Milan Marti has failed to
demonstrate any remorse.1361
1346 Babi Sentencing Appeal Judgement, para. 43.
1347 Bla{ki Appeal Judgement, para. 696. See also Joki Sentencing Judgement, paras 95-96; Todorovi} Sentencing
Judgement, para. 88; Kvo~ka et al. Appeal Judgement, para. 722.
1348 Bla{ki Appeal Judgement, para. 696, referring to Jelisi Appeal Judgement, para. 122; Joki Sentencing
Judgement, para. 76.
1349 Ibid., referring to Joki} Sentencing Judgement, para. 89; Erdemovi Second Sentencing Judgement, para. 16(iii).
1350 Ibid., referring to Joki} Sentencing Judgement, para. 73.
1351 Ibid., referring to Erdemovi Second Sentencing Judgement, para. 16(i); Kupreški et al. Appeal Judgement, para.
459.
1352 Ibid., referring to Joki} Sentencing Judgement, para. 100; Dragan Nikoli} Sentencing Judgement, para. 268.
1353 Ibid., referring to Kunarac et al. Appeal Judgement, paras 362, 408.
1354 Ibid., referring to Joki} Sentencing Judgement, paras 90-91, 103.
1355 Ibid., referring to Erdemovi Second Sentencing Judgement, para. 17.
1356 Ibid., referring to Krsti Appeal Judgement, para. 273.
1357 Ibid., referring to elebii Appeal Judgement, para. 590.
1358 Ibid., referring to Joki Sentencing Judgement, para. 100.
1359 Ibid., referring to Sikirica et al. Sentencing Judgement, paras 195, 229.
1360 Ibid., referring to Krsti Appeal Judgement, para. 271; Milan Simi Sentencing Judgement, para. 98.
1361 Prosecution Final Trial Brief, para. 483.
Case No. IT-95-11-T 181 12 June 2007
503. The Defence submits that before the indictment period Milan Marti} had a reputation of
being a professional and successful police inspector in Knin and that he was considered a person of
broad-minded views and moral integrity.1362 Moreover, the Defence relies on the testimony of MM-
078 who stated that “he was not aware of any such case where Mr. Marti} ordered someone to do
something harmful to someone else”.1363
504. The Trial Chamber notes, in this respect, the Prosecution submission that Witness MM-078
also testified that Milan Marti} abused his position as a police inspector in Knin by using coercive
means on suspects, forcing them to make statements or admissions against their will, beating
prisoners and detaining persons without sufficient evidence.1364 As a consequence, Milan Marti}
was suspended from his position.1365
505. The Trial Chamber finds that the direct and specific evidence given by Witness MM-078
concerning examples of Milan Marti}’s abuse of position is credible and outweighs the Witness
MM-078’s evidence referred to by the Defence, as well as other similarly general statements
concerning Milan Marti’s character. The Trial Chamber therefore finds that the conduct of Milan
Marti} prior to the indictment period cannot serve as a mitigating factor.
506. The Defence argued in its closing arguments that Milan Marti} was not driven by
“chauvinism, intolerance, ruthlessness in relation to members of a certain religion or ethnic group:
Muslims and Croats”. The Defence recalled the testimonies of witnesses who stated that they never
observed any traces of hatred or any kind of intolerance in Milan Marti} against members of Croat
community.1366 The Defence further referred to the testimony of Charles Kirudja, who testified that
during his meetings with Milan Marti} he did not get the impression that Milan Marti} wanted to
expel or destroy any other peoples or to mistreat them in any way.1367
507. The Trial Chamber recalls that during the summer and autumn of 1991, Milan Marti
instructed persons involved in humanitarian assistance to treat both Croat and Serb refugees
arriving from Drni{ equally.1368 The Trial Chamber further recalls Slobodan Jarevi’s testimony
that Milan Marti “demonstrated the nobility of his character” by looking after refugees who
1362 Witness MM-096, 21 Aug 2006, T. 6825-6826; Witness MM-116, 28 Aug, T. 7257.
1363 Witness MM-078, 25 May 2006, T. 4499. Defence’s Submission Concerning Individual Circumstances of the
Accused Milan Marti}, 30 May 2007, para. 9.
1364 Witness MM-078, 24 May 2006, T. 4393-4395; Prosecution Submission Regarding Individual Circumstances of the
Accused, 30 May 2007, para. 3.
1365 Witness MM-078, 24 May 2006, T. 4396; Prosecution Submission Regarding Individual Circumstances of the
Accused, 30 May 2007, para. 3.
1366 Defence Closing Argument, 10 Jan 2007, T. 11241. See also Defence’s Submission Concerning Individual
Circumstances of the Accused Milan Marti}, 30 May 2007, paras 11-12.
1367 Charles Kirudja, 1 Jun 2006, T. 4961; Defence’s Submission Concerning Individual Circumstances of the Accused
Milan Marti}, 30 May 2007, para. 10.
Case No. IT-95-11-T 182 12 June 2007
arrived from BiH in 1994, despite the difficulties which the RSK was facing due to international
sanctions.1369
508. The Trial Chamber considers that even though there is evidence showing positive traits in
the character of Milan Marti} and that sporadic help was given by him to Croats and other non-
Serbs, the effect thereof is diminished by the fact that Milan Marti at all times relevant for the
crimes for which he has been found guilty, held positions in which he was able and obliged to take
measures to prevent or punish acts of violence.1370 The Trial Chamber recalls that in such a case,
sporadic benevolent acts or ineffective assistance may be disregarded.1371 The Trial Chamber finds
that neither the personality of Milan Marti} nor any sporadic acts of assistance given to Croats and
other non-Serbs can be treated as mitigating circumstances in this case. The Trial Chamber also
finds that neither the age of Milan Marti}, nor his family situation at the time of the commission of
the crimes can be treated as mitigating circumstances in this case.1372
509. As to Milan Marti’s situation since the commission of the crimes for which he has been
found guilty, the Defence submits that Milan Marti} and his family were expelled and displaced
following “Operation Storm”.1373 The Trial Chamber considers this to be a mitigating circumstance
of limited weight.
510. The Trial Chamber notes that the first Indictment against Milan Marti} was confirmed on 25
July 1995 and made public on 23 January 1996.1374 According to Milan Marti’s own admission on
the last day of the trial, he was aware of the first Indictment issued against him.1375 In this respect,
the Trial Chamber recalls the decision taken during the pre-trial phase in this case wherein it was
considered that Milan Martic’s surrender on 15 May 2002 was not necessarily fully voluntary.1376
The Trial Chamber notes that Milan Marti evaded justice for around seven years in the knowledge
that an indictment was issued against him. Rather than surrender in order to respond to the charges
brought against him, he chose to publicly make disparaging remarks about the Tribunal.1377 The
1368 Ljubica Vujani}, 18 Sep 2006, T. 8498-8501.
1369 Slobodan Jarevi}, 12 Jul 2006, T. 6172-6173.
1370 See supra section III J.
1371 elebii Appeal Judgement, para. 776; e{i} Sentencing Judgement, para. 79. See also Kraji{nik Trial Judgement,
para. 1162.
1372 Ex. 494, L0107131.
1373 Defence’s Submission Concerning Individual Circumstances of the Accused Milan Marti}, 30 May 2007, para. 3.
1374 Review of the Indictment, 25 Jul 1995; Advertisement of Indictment, 23 Jan 1996.
1375 Statement of the Accused, 12 Jan 2007, T. 11441.
1376 The Trial Chamber considered that Milan Marti}’s surrender to the Tribunal in 2000 was at least partially caused by
the enactment of the Law on Co-operation by the FRY, making his further hiding almost impossible, see Decision on
the Motion for Provisional Release, 10 Oct 2002, pp 3-4.
1377 Prosecution’s Response to Motion for Provisional Release Filed by the Accused Milan Marti}, 18 July 2002, para.
14 and Addendum; Prosecution Submission Regarding Individual Circumstances of the Accused, 30 May 2007, para 4.
Case No. IT-95-11-T 183 12 June 2007
Trial Chamber finds that the fact that Milan Marti} surrendered to the Tribunal in 2002, although
constituting a mitigating factor in this case, will be given only minimal weight.
511. The Trial Chamber notes the Defence’s submission of the neuropsychiatrist’s opinion
describing Milan Marti} as having “a stable personality structure with a dominating quantum of
emotions” and finding him to be “socially integrated, non-conflictive and conciliatory”.1378
However, in light of Milan Marti}’s conduct demonstrated during the trial, especially the fact that
he did not express any remorse for any of the crimes for which he has been found guilty, the Trial
Chamber rejects this opinion.
4. General practice regarding sentencing in the former Yugoslavia
512. Article 24(1) of the Statute provides that “Trial Chambers shall have recourse to the general
practice regarding prison sentences in the courts of the former Yugoslavia”. The jurisprudence of
the Tribunal has consistently held that this does not require the Trial Chambers to conform to the
practice regarding prison sentences in the courts of the Former Yugoslavia; it only requires that the
Trial Chambers take that practice into account.1379
513. The Trial Chamber reviews this practice only as an aid in determining the appropriate
penalty and may impose a sentence less than or in excess of the punishment that would be
applicable under the sentencing law of the former Yugoslavia.1380
514. The Criminal Code of the Socialist Federal Republic of Yugoslavia (“SFRY Criminal
Code”) regulated sentencing law in the territory at issue during the Indictment period.1381 Article 41
of that Code provides the various factors to be taken into account in determining the sentence,
including mitigating and aggravating circumstances, the degree of criminal responsibility, the
motives of the accused, his personal circumstances, and his conduct after the commission of the
crime.
515. In terms of punishment, Article 34 of the SFRY Criminal Code provides that the court could
impose capital punishment, imprisonment, a fine, and confiscation of property. Article 38 of the
SFRY Criminal Code provides further that prison sentences could not exceed 15 years unless the
crime was eligible for the death penalty, in which case the term of imprisonment could not exceed
1378 Defence’s Submission Concerning Individual Circumstances of the Accused Milan Marti}, 30 May 2007, para. 13.
1379 elebii Appeal Judgement, para. 813, citing Serushago Sentencing Appeal Judgement, para. 30. See also Tadi
Sentencing Appeal Judgement, para. 21; Kunarac et al. Appeal Judgement, para. 377; Jelisi Appeal Judgement, paras
116-117; Staki Appeal Judgement, para. 398.
1380 Staki} Appeal Judgement, para. 398.
Case No. IT-95-11-T 184 12 June 2007
20 years.1382 The Trial Chamber recalls that Article 24 of the Statute limits it to imposing a sentence
of imprisonment. In this context, the Appeals Chamber has held that it does not violate the principle
of nulla poena sine lege to impose sentences in excess of 20 years.1383
516. Having considered all of the evidence and the arguments of the Parties, and based upon the
factual and legal findings as determined in this judgement, the Trial Chamber decides as follows:
1381 Adopted by the SFRY Assembly at the Session of Federal Council held on 28 September 1976; declared by decree
of the President of the Republic on 28 September 1976; published in the Official Gazette SFRY No. 44 of 8 October
1976; took effect on 1 July 1977.
1382 Due to the gravity of the crimes at issue, the accused would have been aware that such actions constituted serious
violations of international humanitarian law, punishable by the harshest of penalties, see ^elebii Appeal Judgement,
paras 816-817; Blaški Appeal Judgement, para. 681. Furthermore, the Trial Chamber notes that violations of Articles
142 (“War crime against the civilian population”), 148 (“Making use of forbidden means of warfare”) provide for a
minimum sentence of five years imprisonment with a maximum sentence of death; Article 151 (“Destruction of cultural
and historical monuments”) mandates a sentence of at least one year imprisonment; and Article 154 (“Racial and other
discrimination”) allows for a sentencing range of 6 months to five years of imprisonment.
1383 Staki Appeal Judgement, para. 398.
Case No. IT-95-11-T 185 12 June 2007
VI. DISPOSITION
517. The Trial Chamber finds Milan Marti NOT GUILTY of:
Count 2: Extermination, a crime against humanity
518. The Trial Chamber finds Milan Marti GUILTY pursuant to Article 7(1) of the Statute on
the following counts:
Count 1: Persecutions, a crime against humanity
Count 3: Murder, a crime against humanity
Count 4: Murder, a violation of the laws or customs of war
Count 5: Imprisonment, a crime against humanity
Count 6: Torture, a crime against humanity
Count 7: Inhumane acts, a crime against humanity
Count 8: Torture, a violation of the laws or customs of war
Count 9: Cruel treatment, a violation of the laws or customs of war
Count 10: Deportation, a crime against humanity
Count 11: Forcible transfer, a crime against humanity
Count 12: Wanton destruction of villages, or devastation not justified by military
necessity, a violation of the laws or customs of war
Count 13: Destruction or wilful damage done to institutions dedicated to education or
religion, a violation of the laws or customs of war
Count 14: Plunder of public or private property, a violation of the laws or customs of war
Count 15: Murder, a crime against humanity
Count 17: Inhumane acts, a crime against humanity
Count 19: Attacks on civilians, a violation of the laws or customs of war
519. The Trial Chamber sentences Milan Marti to a single sentence of thirty-five (35) years of
imprisonment.
Case No. IT-95-11-T 186 12 June 2007
520. Milan Marti has been detained since 15 May 2002. Pursuant to Rule 101(C) of the Rules,
Milan Marti is entitled to credit for time spent in detention, which as of the date of this judgement
amounts to 1,855 days, and for such additional time he may serve pending the determination of any
appeal. Pursuant to Rule 103(C) of the Rules, Milan Marti shall remain in the custody of the
Tribunal pending finalisation of arrangements for his transfer to the State where he shall serve his
sentence.
Done in English and French, the English version being authoritative.
Janet Nosworthy Bakone Justice Moloto Frank Höpfel
Judge Presiding Judge Judge
Dated this twelfth day of June 2007
At The Hague
The Netherlands
Seal of the Tribunal
Case No. IT-95-11-T 187 12 June 2007
ANNEX A – PROCEDURAL HISTORY
A. Pre-trial proceedings
521. The Initial Indictment against Milan Marti} was confirmed on 25 July 1995, with corrected
or amended versions subsequently filed on 26 August 2002, 18 December 2002 and 14 July 2003,
and the Second Amended Indictment being filed on 9 September 2003.1384
522. On 8 March 1996, an international arrest warrant was issued for Milan Marti.1385 On 15
May 2002, Milan Marti} surrendered and was transferred to the Tribunal, and ordered to be
detained at the UNDU in The Hague.1386 At the initial appearance on 21 May 2002, Milan Marti}
pled not guilty to all charges, and on 28 January 2003, Milan Marti pled not guilty to all additional
charges and allegations of the Amended Indictment.1387
523. During his initial appearance, Milan Marti was represented by Strahinja Kastratovi},
temporarily assigned by the Registrar from 31 May 2002 until 13 June 2002.1388 On 13 December
2002, in light of Milan Marti’s request for the withdrawal of Strahinja Kastratovi} and of the
communication from the latter stating unwillingness to represent Milan Marti}, the Registrar
assigned Predrag Milovan~evi} as counsel for Milan Marti.1389
524. On 10 October 2002, the Trial Camber denied the Defence requests for provisional release
of Milan Marti, and on 12 September 2005, the Trial Chamber denied a further motion for
provisional release.1390
1384 Review of the Indictment, 25 Jul 1995; Motion to Request Leave to File an Amended Indictment, 26 Aug 2002;
Decision on the Prosecution; Motion to file a Corrected Amended Indictment, 13 Dec 2002; Prosecution Motion to file
Amended Indictment pursuant to Trial Chamber’s Decision on Preliminary Motion against the Amended Indictment, 14
Jul 2003. In relation to the Amended Indictment, on 2 Jun 2003 the Trial Chamber granted in part the Defence
Preliminary Motion pursuant to Rule 72A (ii) of the Rules on Procedure and Evidence against the Amended Indictment
dated 18 Dec 2002, and 17 Mar 2003, and ordered the Prosecution to file a new Amended Indictment clarifying
inconsistencies, see Decision on Preliminary Motion against the Amended Indictment, 2 Jun 2003. On 5 Sep 2003, the
Trial Chamber denied a further preliminary motion filed by the Defence against the Amended Indictment, declaring it
as frivolous, and ordered the Prosecution to file the Amended Indictment, to be known as the Second Amended
Indictment, which the Prosecution did on 9 Sep 2003. On 9 Dec 2005, the Second Amended Indictment was re-filed due
to a numbering mistake.
1385 Decision of the Registrar, 8 Mar 1996.
1386 Order for Detention, 15 May 2002.
1387 Initial Appearance, 21 May 2002, T. 11-13. Further Appearance and Status Conference, 28 Jan 2003, T. 74-80.
1388 Decision of the Registrar, 31 May 2002. On 14 June 2002, the Registrar assigned Gert-Jan Knoops as counsel for a
period of 100 days, Decision of the Registrar, 14 Jun 2002. Following an appeal by Strahinja Kastratovi} and order by
the Trial Chamber, on 16 August 2002, the Registrar withdrew the assignment of Gert-Jan Knoops and assigned
Strahinja Kastratovi}, Defence’s Appeal against the Decision of Registry, 18 Jun 2002; Decision on Appeal against
Decision of Registry, 2 Aug 2002; Decision of the Registrar, 16 Aug 2002.
1389 Decision of the Registrar, 13 Dec 2002.
1390 The Trial Chamber noted several factors which substantially weighed against the Defence’s contention that there
was no risk of flight: Milan Marti had shown capacity for evading arrest for a prolonged period of time, he had used
false names, had the means and know-how to obtain false documents, had publicly and repeatedly displayed disregard
Case No. IT-95-11-T 188 12 June 2007
525. The Prosecution disclosed supporting material to the Defence pursuant to Rule 66(A)(i) and
(ii) on 21 May 2002, and 26 August 2002.1391 On 7 May 2004, the Prosecution disclosed material
previously undisclosed to the Defence pursuant to Rule 65 ter (E)(iii). On 22 January 2004, the
Prosecution assured the Trial Chamber that it had disclosed all Rule 66 (A) material, except for that
which the Trial Chamber had agreed to delay disclosure.1392 On 5 March 2004, the Prosecution
disclosed to the Defence exculpatory material relative to Rule 68. On 2 November 2004, the
Prosecution recognised that the “Statement of Matters that are not in Dispute”, which was attached
to the Defence’s Pre-Trial Brief, accurately reflected the agreement between the Parties.1393
526. Status Conferences were held on 23 September 2002, 28 January 2003, 29 May 2003, 29
September 2003, 22 January 2004, 21 September 2004, 19 May 2005, 15 September 2005, and 22
November 2005.
527. The Prosecution filed its Pre-Trial Brief on 7 May 2004. On 1 November 2004, after having
been given an extension of 47 days, the Defence submitted its Pre-Trial Brief.
528. On 10 November 2005, the Trial Chamber denied a Prosecution Motion for Joinder of the
cases of Milan Marti}, Jovica Stani{i}, Franko Simatovi} and Vojislav [e{elj on the basis that the
case against Milan Marti} had been ready for trial for some time and that Milan Marti had been in
detention for over three years and four months, and therefore the trial should commence with the
shortest possible delay.1394
529. On 15 December 2005, the Trial Chamber granted in part the Prosecution Motion for Leave
to Amend its Rule 65 ter Exhibits List by adding 719 documents and video footage to the
Prosecution exhibit list.1395 The Trial Chamber denied the motion insofar as it sought the addition
for the Tribunal, and had publicly announced his willingness to resort to violence in the case of forcible apprehension.
Moreover, the Trial Chamber noted that Milan Marti’s surrender was not necessarily fully voluntary. On 13 October
2002, the Defence applied for leave to appeal the Trial Chamber’s Decision of 10 October 2002. The Appeals Chamber
dismissed the application on 18 Dec 2002. See also Milan Marti}’s Request for Provisional Release until Beginning of
Trial, dated 21 June 2002, and filed on 10 July 2002; Motion for Provisional Release, 9 Jul 2002; Second Motion for
Provisional Release, 25 Apr 2005.
1391 Initial Appearance, 21 May 2002, T. 13. Prosecution’s Material in Support of the Amended Indictment, 26 Aug
2002. An addendum of supporting materials for the Amended Indictment being submitted on 18 November 2002,
Prosecution’s Addendum of Supporting Materials in Support of Amended Indictment.
1392 Status Conference, 22 January 2004, T. 105-106.
1393 Defence Pre-Trial Brief Pursuant to Rule 65 ter (F) with a Confidential Annex, 1 Nov 2004. See Prosecution Pre-
Trial Brief, 7 May 2004. Prosecution’s Submission to Defence’s Pre-Trial Brief, 2 Nov 2004; at the Rule 65ter
conference on 14 Sep 2005, both the Prosecution and the Defence stated that they could not go further than the already
agreed facts, Rule 65 ter Conference, 14 Sep 2005.
1394 Decision on Prosecution Motion for Joinder, 10 Nov 2005. Prosecution Motion for Joinder, 30 May 2005. Response
to the Prosecution’s Motion for Joinder, 13 Jun 2005.
1395 Prosecution’s Motion for Leave to Amend Its Rule 65 ter Exhibit List, 17 Aug 2005; Decision on Prosecution’s
Motion to Amend Its Rule 65 ter Exhibit List, 15 Dec 2005.
Case No. IT-95-11-T 189 12 June 2007
of material pertaining to the charges concerning Prnjavor, [ipovo and Bosanska Gradi{ka,
regarding which areas the Prosecution had previously stated that it would not lead evidence.1396
530. On 18 November 2005, the President of the Tribunal assigned Judge Bakone Justice Moloto
(South Africa) to the present case, and on 1 December 2005, the President of the Tribunal ordered
that the Bench be composed of Judge Bakone Justice Moloto, presiding, Judge Janet Nosworthy
(Jamaica) and Judge Frank Höpfel (Austria).1397 The Pre-Trial Conference was held on 12
December 2005 and the Pre-Defence Conference was held on 7 July 2006.
B. Trial proceedings
1. Overview
531. Pursuant to Rule 84 bis of the Rules, Milan Martic made an opening statement on 13
December 2005 and in-court statements on 13 March 2006 and 12 January 2007.1398 The
Prosecution case started on 13 December 2005 and concluded on 20 June 2006.1399 Guidelines on
the Standards Governing the Admission of Evidence, and Guidelines Governing the Presentation of
Evidence and the Conduct of Counsel in Court, were adopted on 19 January 2006, and 13 April
2006, respectively.1400
532. The Prosecution called 45 viva voce witnesses, four of whom testified pursuant to Rule 89
(F), and 12 of whom testified pursuant to former Rule 92 bis (E).1401 16 witness statements were
admitted into evidence pursuant to former Rule 92 bis (B), two witness statements were admitted
pursuant to former Rule 92 bis (C), and transcripts of nine witnesses were admitted pursuant to
1396 Prosecution Notification Regarding Certain Witnesses on its Rule 65 ter List, 24 Nov 2005.
1397 Order Replacing a Judge in a Case before a Trial Chamber, 18 Nov 2005. Order Assigning Judges to a Case in a
Trial Chamber, 1 Dec 2005. During the pre-Trial phase, on 15 May 2002, the President of the Tribunal transferred the
case to Trial Chamber I, consisting of Judge Liu Daqun (China), presiding, Judge Amin El Mahdi (Egypt) and Judge
Alphonsus Orie (The Netherlands). Order of the President Assigning a Case to a Trial Chamber, 15 May 2002. On 30
May 2003, the President of the Tribunal ordered the composition of the Trial Chamber as Judge Amin El Mahdi, Judge
Alphonsus Orie and Judge Joaquín Martín Canivell (Spain). Order Assigning a Case to a Trial Chamber, 30 May 2003.
On 2 June 2003, Judge Liu Daqun, as Presiding Judge of Trial Chamber I, designated Judge Alphonsus Orie as
Presiding Judge in the case. Order Designating a Presiding Judge for the Case, 2 Jun 2003. On 7 June 2005, the
President of the Tribunal assigned the case to Trial Chamber III. Order Reassigning a Case to a Trial Chamber, 7 Jun
2005. The case was reassigned to Trial Chamber I on 4 July 2005. Order Reassigning a Case to a Trial Chamber and
Referring the Joinder Motion, 4 Jul 2005.
1398 Hearing, 13 Dec 2005, T. 296-318. Hearing, 13 March 2006, T. 2222-2224. Hearing, 12 Jan 2007, T. 11441-11442.
1399 Hearing, 13 Dec 2005, T. 261; Hearing, 20 Jun 2006, T. 5835-5836.
1400 Decision Adopting Guidelines on the Standards Governing the Admission of Evidence, 19 Jan 2006 (with Annex
A). Decision Adopting Guidelines on the Standards Governing the Presentation of Evidence and the Conduct of
Counsel in Court, 13 Apr 2004 (with Annex A). The Guidelines were revised on 19 May 2006; Revised Version of the
Decision Adopting Guidelines on the Standards Governing the Presentation of Evidence and the Conduct of Counsel in
Court, 19 May 2006.
1401 Decision on Prosecution’s Motion for Admission of Statement of Witness Milan Babi Pursuant to Rule 89 (F), 10
Feb 2006; Decision on the Prosecution Motion for the Admission of a Statement of a Witness Pursuant to Rule 89(F),
with Confidential Annex A, 28 Apr 2006; Oral Decision on Prosecution’s Motion for Admission of Statements of
Witnesses MM-016 and MM-018 Pursuant to Rule 89 (F), 9 May 2006, T. 4151-4152.
Case No. IT-95-11-T 190 12 June 2007
former Rule 92 bis (D).1402 The testimonies of three witnesses of the Prosecution were heard via
videoconference link.1403 On 13 January 2006, the Trial Chamber granted the Defence’s request for
cross-examination of five Prosecution experts but dismissed the Defence’s objections that the
individuals could not, based on their qualifications, be considered as experts, and the objections
concerning the impartiality of the experts, and the reliability of the reports.1404 One subpoena was
issued by the Trial Chamber for one witness at the request of the Prosecution.1405 The Trial
Chamber also issued one order for the temporary transfer of a detained witness.1406 The Trial
Chamber admitted 901 exhibits tendered into evidence by the Prosecution.
533. On 26 June 2006, the Defence presented oral submissions pursuant to Rule 98 bis of the
Rules, moving for an acquittal on all counts.1407 The Prosecution responded on the same day and
opposed the Defence submissions in their entirety.1408 On 3 July 2006, the Trial Chamber rejected
the Defence motion in all respects.1409
534. The Defence case began on 11 July 2006 and ended on 16 November 2006.1410 The Trial
Chamber heard 22 viva voce witnesses, two of whom testified pursuant to Rule 92 ter.1411 The
testimony of one Defence witness was heard via video-conference link.1412 On 13 January 2006, the
Trial Chamber granted a Prosecution motion requesting assignment of pseudonyms to certain
witnesses, that certain witnesses would testify in closed session, and that certain confidential
material would not be disclosed to the public.1413 On 18 August 2006, the Trial Chamber granted a
Defence motion requesting the assignment of a pseudonym to a witness and closed session
1402 Decision on Prosecution’s Motions for the Admission of Written Evidence Pursuant to Rule 92 Bis of the Rules, 16
Jan 2006; Decision on Prosecution Motions on Admission of Written Statements Pursuant to Rule 92 Bis (C), 15 Jun
2006; Decision on Prosecution’s Motions for Admission of Transcripts Pursuant to Rule 92 bis (D) and of Expert
Reports Pursuant to Rule 94 bis, 13 Jan 2006; Oral Decisions on Prosecution’s Second Rule 92 bis Motion of 25 January 2006,
15 Feb 2006, T. 1322-1323, and 2 May 2006, T. 3889-3890; Oral Decision to Admit the Statement of Witness MM-
038, 23 Mar 2006, T. 2464.
1403 Hearing, 2 Mar 2006, T. 1751-1752.
1404 Decision on the Prosecution’s Motions for Admission of Transcripts Pursuant to Rule 92 bis (d) and of Expert
Reports Pursuant to Rule 94 bis, 13 Jan 2006.
1405 Subpoena to a Witness to Appear for a Meeting with the Prosecution, 16 Sep 2005.
1406 Order for Transfer of a Detained Witness, 13 Jan 2006.
1407 Hearing, 26 Jun 2006, T. 5841-5886.
1408 Hearing, 26 Jun 2006, T. 5886-5925, Hearing, 27 Jun 2006, T. 5927-5939.
1409 Hearing, 3 Jul 2006, T. 5959-5971.
1410 Hearing, 11 Jul 2006, T. 6024-6025; Hearing, 16 Nov 2006, T. 11142-11143.
1411 Rule 92 ter was adopted at the Extraordinary Plenary Session on 13 Sep 2006 and codifies the procedure, which had
developed pursuant to Rule 89(F), see Miloševi Decision. According to the Rule 92 bis (C), Rule 92 ter also applies to
witnesses who appear for cross-examination, i.e. witnesses who were formerly called pursuant to Rule 92 bis (E).
Before the introduction of Rule 92 ter, Rule 89 (F) was applied in determining the admission of such evidence.
1412 Decision on Defence Motion for the Testimony of Professor Simlja Avramov Via Video-Conference Link, 10 Nov
2006.
1413 Decision on Prosecution Second Motion for Protective Measures with Confidential Annexes A, C and E, and
Confidential and Ex-Parte Annexes B, D, and F, 13 Jan 2006. A previous Prosecution request for protective measures
had been granted on 18 December 2003, Order on Prosecution Motion for Non-Disclosure of Materials Provided
Pursuant to Rules 66(A)(Ii) and 68 and for Protective Measures for Witnesses During the Pre-Trial Phase. See also
Decision on Prosecution’s Motion for Variation of Protective Measures, 17 Mar 2006.
Case No. IT-95-11-T 191 12 June 2007
testimony.1414 Additional protective measures for witnesses were granted orally during the trial.1415
The Trial Chamber issued 20 orders for safe conduct at the request of the Defence. In total, the Trial
Chamber admitted 90 Defence exhibits into evidence. The Trial Chamber also admitted 24 exhibits
as Chambers exhibits.
535. On 28 November 2006, the Trial Chamber denied the Prosecution’s motion to admit
evidence in rebuttal on the basis that it did not meet the standard for admission as rebuttal evidence
pursuant to Rule 85(A)(iii).1416
536. On 5 January 2007, the final trial briefs of the Prosecution and the Defence were filed.
Closing arguments were heard on 10, 11 and 12 January 2007. On 9 April 2007, the Prosecution
sent a letter to the Defence disclosing details of its assistance provided to Witness MM-003 in his
asylum case.1417 On 24 May 2007, the Trial Chamber ordered the Parties to make written
submissions regarding the individual circumstances of Milan Marti because the Trial Chamber
considered that the Parties had not adequately addressed this in their final trial briefs or closing
arguments as was their duty under the Statute and under the Rules.1418
2. Testimony and evidence of Milan Babi}
537. On 6 March 2006, the trial was adjourned until 8 March 2006 on account of the death of
Milan Babi} on 5 March 2006 at the United Nations Detention Unit, where he was being detained
for the duration of his testimony as a Prosecution’s witness.1419 On 8 March 2006, the question of
whether Milan Babi’s death affected his evidence was raised in court and the Trial Chamber
ordered the Parties to address the matter of Milan Babi’s evidence “at an appropriate moment”,
and that the trial proceed in the meantime.1420 On 9 June 2006, having heard the submissions of the
Parties, the Trial Chamber rejected the Defence’s arguments, determining that, pursuant to Rule 89
1414 Decision on Defence Motion for Protective Measures for Witnesses MM-096, MM-116 and MM-090, 18 Aug 2006.
1415 Hearing, 8 Mar 2006, T. 1943; Hearing, 15 Mar 2006, T. 2265-2267; Hearing, 4 Apr 2006, T. 3178-3179; Hearing,
23 Mar 2006, T. 2467; Hearing, 5 May 2006, T. 4073-4075; Hearing, 14 Aug 2006, T. 6430; Hearing, 11 Oct 2006, T.
9129-9130; Hearing, 31 Oct 2006, 10388-10389.
1416 Decision on Prosecution Motion to Admit Evidence in Rebuttal Pursuant to Rule 92 bis, with Annexes A, B and C,
28 Nov 2006. See Prosecution Motion to Admit Evidence in Rebuttal Pursuant to Rule 92 bis, with Annexes A, B and
C, 16 Nov 2006.
1417 Letter from Alex Whiting to Predrag Milovan~evi}, 9 Apr 2007. The Trial Chamber was copied on this letter.
1418 Order for submissions, 24 May 2006; Prosecution Submission Regarding Individual Circumstances of the Accused,
30 May 2007; Defence’s Submission Concerning Individual Circumstances of the Accused Milan Marti}, 30 May 2007.
Each Party filed a response on 1 Jun 2007.
1419 Hearing, 6 Mar 2006, T. 1935-1936.
1420 Hearing, 8 Mar 2006, T. 1945-1948.
Case No. IT-95-11-T 192 12 June 2007
(D) of the Rules, in spite of the incomplete cross-examination the need to ensure a fair trial did not
outweigh the probative value of the evidence of Milan Babi}.1421
538. On 20 June 2006, the Trial Chamber granted certification for appeal of the Trial Chamber’s
decision of 9 June 2006 to the Defence.1422 On 10 July 2006, after being given an enlargement of
time by the Appeals Chamber, the Defence filed its interlocutory appeal.1423 The Appeals Chamber
dismissed the Defence’s appeal on 14 September 2006.1424 On 30 September 2006, the Trial
Chamber denied the Defence’s motion for reconsideration and modification of the Trial Chamber’s
order of 9 June 2006.1425
539. On 17 November 2006, the Trial Chamber admitted into evidence excerpts of Milan Babi}’s
Prosecution Interviews submitted by the Defence to it pursuant to the Trial Chamber’s order of 9
June 2006.1426
540. On 28 November 2006, the Trial Chamber dismissed the Defence Motion requesting the
Trial Chamber to order Judge Kevin Parker, the Vice-President of the Tribunal, to disclose to the
Defence the full statements obtained during the inquiry on Milan Babi}’c death, having found that it
1421 Decision on Defence Motion to Exclude Testimony of Witness Milan Babi}, Together with Associated Exhibits,
from Evidence, 9 June 2006. See supra para. 33. Prosecution’s Submissions Regarding the Evidence of Witness Milan
Babi, 6 April 2006. The Prosecution submitted that Milan Babi}’s evidence bore numerous indicia of reliability, such
as the fact that the testimony was given under oath, in open session, in the presence of the Accused, was subject to three
days of cross-examination and was in large part corroborated by other evidence, both documentary and testimonial.
Motion to Exclude Testimony of Witness Milan Babi}, Together with Associated Exhibits, from Evidence, 2 May 2006.
In its motion filed on 2 May 2006, the Defence requested the Trial Chamber to exclude the testimony of Milan Babi}
from the trial record on the basis that it was so lacking in indicia of reliability that it had no probative value, and in any
case that it was substantially outweighed by the need to ensure a fair trial. On 8 May 2006, the Prosecution filed its
Response to the Defence Motion to Exclude Testimony of Witness Milan Babi}, Together with Associated Exhibits,
from Evidence. The Defence replied on 15 May 2006.
1422 Decision on Defence Application for Certification of Appeal Pursuant to Rule 73 (B), 20 June 2006. See also
Prosecution’s Response to Defence Application for Certification of Appeal Pursuant to Rule 73 (B), 19 June 2006.
Appeal against the Trial Chamber’s Decision on the Evidence of Witness Milan Babi}, 10 July 2006. On 20 July 2006,
the Prosecution filed its Response to Defence Interlocutory Appeal against the Trial Chamber’s Decision on the
Evidence of Witness Milan Babi}.
1423 Decision on Motion for Enlargement of Time, 23 Jun 2006.
1424 Decision on Appeal against the Trial Chamber’s Decision on the Evidence of Witness Milan Babi}, 14 September
2006. The Appeals Chamber found that the Defence had failed to demonstrate any of the discernible errors allegedly
committed by the Trial Chamber that would result in prejudice.
1425 Decision on Defence Motion for Reconsideration and Modification of the Trial Chamber’s Order of 9 June 2006, 30
Sep 2006. The Defence Motion was rejected, inter alia, on the basis that it was not shown by the Defence that there had
been a change of circumstances, which would require the Trial Chamber to reconsider its decision See Defence Motion
for Reconsideration and Modification of the Trial Chamber’s Order of 9 June 2006, 24 September 2006. Prosecution’s
Response to the Defence Motion for Reconsideration and Modification of the Trial Chamber’s Order of 9 June 2006, 28
September 2006.
1426 Decision on Defence’s Submission Pursuant to the Trial Chamber’s Order of 9 June 2006, 17 Nov 2006. see
Defence’s Submission Pursuant to the Trial Chamber’s Order of 9 June 2006, 4 Oct 2006. Prosecution’s Response to
the Defence’s Submission Pursuant to the Trial Chamber’s Order of 9 June 2006, 16 October 2006.
Case No. IT-95-11-T 193 12 June 2007
was not the proper forum before which a request for review of the decision taken by Judge Parker
could be brought.1427
3. Site visit
541. The Trial Chamber and the Parties carried out a site visit between 25 and 30 September
2006, pursuant to the Trial Chamber’s Order of 16 May 2006 on Site visit.1428 An audiovisual
record was made of the site visit. The record was subsequently transcribed and both the record and
the transcripts thereof were admitted into evidence by the Trial Chamber.1429
1427 Decision on Defence’s Motion for Access to Full Statements Obtained in the Inquiry of the Death of Milan Babi},
28 Nov 2006. See Defence’s Motion for Access to Full Statements Obtained in the Inquiry of the Death of Milan Babi},
13 Nov 2006.
1428 The locations visited were Zagreb, Hrvatska Dubica, Cerovljani, Bain, Slunj, Hrvatska Kostajnica, Dvor na Uni,
Saborsko, Poljanak (including the hamlet of Vukovii), Lipovaa, Vaganac, Hrvatska Korenica, [kabrnja, Nadin,
Bru{ka (including the hamlet of Marinovii), Knin, Vrpolje and Golubi.
1429 Order On Site Visit, 16 May 2006. Order on Itinerary for the Site Visit, 23 Jun 2006. Decision on Admission into
Evidence of Record of Site Visit, 28 Nov 2006. Ex. 1042: video record; Ex. 1043: transcript. See also Prosecution’s
Proposal of Locations to Visit During Proposed Site Visit, filed confidentially on 6 Apr 2006. Defence Submission
Regarding sites to be Visited during the Proposed Site Visit, filed confidentially on 9 May 2006. Prosecution Response
to Defence Submission Regarding Sites to be Visited During the Proposed Site Visit, 10 May 2006. See also Order to
Redact Site Visit Record, 6 June 2007.
Case No. IT-95-11-T 194 12 June 2007
ANNEX B – LIST OF CASES, SOURCES AND SHORT CITES
C. ICTY
Aleksovski Appeal Judgement Prosecutor v. Zlatko Aleksovski, Case No. IT-95-
14/1-A, Judgement, 24 Mar 2000
Babi Sentencing Appeal Judgement Prosecutor v. Milan Babi}, Case No. IT-03-72,
Judgement on Sentencing Appeal, Judgement, 18 Jul
2005
Banovi} Sentencing Judgement Prosecutor v. Predrag Banovi}, Case No. IT-02-65/1-
S, Sentencing Judgement, 28 Oct 2003
Blagojevi} and Joki} Trial Judgement Prosecutor v. Vidoje Blagojevi} and Dragan Joki},
Case No. IT-02-60-T, Judgement, 17 Jan 2005
Bla{ki} Appeal Judgement Prosecutor v. Tihomir Blaški, Case No. IT-95-14-A,
Judgement, 29 Jul 2004
Brðanin Appeal Judgement Prosecutor v. Radoslav Branin, Case No. IT-99-36-
A, Judgement, 3 Apr 2007
Brðanin Trial Judgement Prosecutor v. Radoslav Branin, Case No. IT-99-36-
T, Judgement, 1 Sep 2004
^elebi}i Appeal Judgement Prosecutor v. Zejnil Delali, Zdravko Muci (a.k.a.
“Pavo”), Hazim Deli and Esad Landzo (a.k.a.
“Zenga”), Case No. IT-96-21-A, Judgement, 20 Feb
2001
^elebi}i Trial Judgement Prosecutor v. Zejnil Delali, Zdravko Muci (a.k.a.
“Pavo”), Hazim Deli and Esad Landzo (a.k.a.
“Zenga”), Case No. IT-96-21-T, Judgement, 16 Nov
1998
^e{i} Sentencing Judgement Prosecutor v. Ranko ^e{i}, Case No. IT-95-10-1,
Sentencing Judgement, 11 Mar 2004
Deronji Sentencing Appeal Judgement Prosecutor v. Miroslav Deronji}, Case No. IT-02-61,
Judgement on Sentencing Appeal, 29 Jul 2005
Dragan Nikoli Sentencing Judgement Prosecutor v. Dragan Nikoli}, Case No. IT-94-02,
Sentencing Judgement, 18 Dec 2003
Erdemovi Sentencing Judgement Prosecutor v. Drazan Erdemovi}, Case No. IT-96-22,
Sentencing Judgement, 29 Nov 1996
Erdemovi Second Sentencing Judgement Prosecutor v. Dra`en Erdemovi}, Case No. IT-96-22-
Tbis, Sentencing Judgement, 5 Mar 1998
Furund`ija Appeal Judgement Prosecutor v. Anto Furund`ija, Case No. IT-95-17/1-
A, Judgment, 21 Jul 2000
Furund`ija Trial Judgement Prosecutor v. Anto Furund`ija, Case No. IT-95-17/1-
T, Judgement, 10 Dec 1998
Gali Appeal Judgement Prosecutor v. Stanislav Gali, Case No. IT-98-29-A,
Judgement, 30 Nov 2006
Gali Trial Judgement Prosecutor v. Stanislav Gali, Case No. IT-98-29-T,
Judgement, 14 Dec 2003
Hadžihasanovi and Kubura Rule 98 bis
Appeal Decision
Prosecutor v. Enver Hadžihasanovi and Amir
Kubura, Case No. IT-01-47-AR 73.3, Decision on
Joint Defence Interlocutory Appeal of Trial Chamber
Decision on Rule 98 bis Motions for Acquittal, 11
Case No. IT-95-11-T 195 12 June 2007
Mar 2005
Halilovi Trial Judgement Prosecutor v. Sefer Halilovi, Case No. IT-01-48-T,
Judgement, 16 Nov 2005
Jelisi Appeal Judgement Prosecutor v. Goran Jelisi, Case No. IT-95-10-A,
Judgement, 5 Jul 2001
Joki} Sentencing Judgement Prosecutor v. Miodrag Joki}, Case No. IT-01-42-1-T,
Sentencing Judgement, 18 Mar 2004
Kordi} and ^erkez Appeal Judgement Prosecutor v. Dario Kordi and Mario ^erkez, Case
No. IT- 95-14/2-A, Judgement, 17 Dec 2004
Kordi} and ^erkez Trial Judgement
Prosecutor v. Dario Kordi and Mario erkez, Case
No. IT- 95-14/2-T, Judgement, 26 Feb 2001
Krajišnik Trial Judgement Prosecutor v. Momilo Krajišnik, Case No. IT-00-39-
T, 27 Sep 2006
Krnojelac Appeal Judgement Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-
A, Judgement, 17 Sep 2003
Krnojelac Trial Judgement Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-
T, Judgement, 15 Mar 2002
Krsti Appeal Judgement Prosecutor v. Radislav Krsti}, Case No. IT-98-33-A,
Judgement, 19 Apr 2004
Krsti} Trial Judgement Prosecution v. Radislav Krsti}, Case No. IT -98-33-T,
Judgement, 2 Aug 2001
Kunarac et al. Appeal Judgement Prosecutor v. Dragoljub Kunarac et al., Case No. IT-
96-22&23-/1-A, Judgement, 12 Jun 2002
Kunarac et al. Trial Judgement Prosecutor v. Dragoljub Kunarac, Radomir Kovac
and Zoran Vukovi, Case No. IT-96-22&23-/1-T,
Judgement, 21 February 2001
Kupre{ki} et al. Appeal Judgement Prosecutor v. Zoran Kupreški, Mirjan Kupreški,
Vlatko Kupreški, Drago Josipovi and Vladimir
Šanti} (aka “Vlado”), Case No. IT-95-16-A,
Judgement, 23 Oct 2001
Kupre{ki} et al. Trial Judgement Prosecutor v. Zoran Kupreški, Mirjan Kupreški,
Vlatko Kupreški, Drago Josipovi, Dragan Papi}
and Vladimir Šanti} ( aka “Vlado”), Case No. IT-95-
16-T, Judgement, 14 Jan 2000
Kvo~ka et al. Appeal Judgement Prosecutor v. Miroslav Kvoka, Milojica Kos, Mlao
Radi, Zoran Žigi and Dragoljub Prca, Case No.
IT-98-30/1-A, Judgement, 28 Feb 2005
Kvo~ka et al. Trial Judgement Prosecutor v. Miroslav Kvoka, Milojica Kos, Mlao
Radi, Zoran Žigi and Dragoljub Prca, Case No.
IT-98-30/1-T, Judgement, 2 Nov 2001
Limaj et al. Trial Judgement Prosecutor v. Fatmir Limaj, Haradin Bala and Isak
Musliu, Case No. IT-03-66-T, Judgement,
30 Nov 2005
Milan Simi Sentencing Judgement Prosecutor v. Milan Simi, Case No. IT-95-9/2,
Sentencing Judgement, 17 Oct 2002
Milo{evi} Decision Prosecutor v. Slobodan Miloševi, Decision on
Interlocutory Appeal on the Admissibility of
Evidence-in-Chief in the Form of Written Statements,
30 Sep 2003
Milutinovi} et al. Decision Prosecutor v. Milan Milutinovi} et al., Case No. ITCase
No. IT-95-11-T 196 12 June 2007
05-87-T, Decision on Prosecution Request for
Certification of Interlocutory Appeal of Decision on
Admission of Witness Philip Coo’s Expert Report, 30
Aug 2006
Momir Nikoli Sentencing Appeal Judgement Prosecutor v. Momir Nikoli, Case No. IT-02-60/1-A,
Judgement on Sentencing Appeal, 8 Mar 2006
Mrk{i} et al. Decision Prosecutor v. Mile Mrk{i} et al., Case No. IT-95-
13/1-T, Decision on Motion Seeking Clarification
with Regard to Count 1 of the Indictment, 19 May
2006
Naletili} and Martinovi} Appeal Judgement Prosecutor v. Mladen Naletili (a.k.a. “Tuta”) and
Vinko Martinovi (a.k.a. “Štela”), Case No. IT-98-
34-A, Judgement, 3 May 2006
Naletili} and Martinovi} Trial Judgement Prosecutor v. Mladen Naletili (a.k.a. “Tuta”) and
Vinko Martinovi (a.k.a. “Stela”), Case No. IT-98-
34-T, Judgement, 31 Mar 2003
Obrenovi} Sentencing Judgement Prosecutor v. Dragan Obrenovi, Case No. IT-02-
60/2, Sentencing Judgement, 10 December 2003
Ori} Trial Judgement Prosecutor v. Naser Ori}, Case No. IT-03-68,
Judgement, 30 Jun 2006
Plav{i} Sentencing Judgement Prosecutor v. Biljana Plav{i}, Case No. IT-00-
39&40/1-S, Sentencing Judgement, 27 Feb 2003
Prli} Decision Prosecutor v. Jadranko Prli} et al., Case No. IT-04-
74-PT, Decision on Defence Preliminary Motions
Alleging Defect in the Form of the Indictment, 22 Jul
2005
Sikirica et al. Sentencing Judgement Prosecutor v. Du{ko Sikirica et al., Case No. IT-95-8,
Sentencing Judgement, 13 November 2001
Simi} et al. Trial Judgement Prosecutor v. Blagoje Simi, Miroslav Tadi, and
Simo Zari, Case No. IT-95-9, Judgement, 17 Oct
2003
Staki} Appeal Judgement Prosecutor v. Milomir Staki, Case No. IT-97-24-A,
Judgement, 22 Mar 2006
Staki} Trial Judgement Prosecutor v. Milomir Staki, Case No. IT-97-24-T,
Judgement, 29 Oct 2003
Strugar Trial Judgement Prosecutor v. Pavle Strugar, Case No. IT- 01-42-T,
Judgement, 31 Jan 2005
Tadi} Sentencing Appeal Judgement Prosecutor v. Duško Tadi (a.k.a. “Dule”), Case No.
IT-94-1-A and IT-94-1-Abis, Judgement in
Sentencing Appeals, 26 Jan 2000
Tadi} Appeal Judgement Prosecutor v. Duško Tadi (a.k.a. “Dule”), Case No.
IT-94-1-A, Judgement, 15 Jul 1999
Tadi} Sentencing Judgement Prosecutor v. Du{ko Tadi} (a.k.a. “Dule”), Case No.
IT-94-1-Tbis-R117, Sentencing Judgement, 11 Nov
1999
Tadi} Trial Judgement Prosecutor v. Du{ko Tadi}, Case No. IT-94-1-T,
Judgement, 14 Jul 1997
Tadi Jurisdiction Decision Prosecutor v. Du{ko Tadi}, Case No. IT-94-1-AR72,
Decision on the Defence Motion for Interlocutory
Appeal on Jurisdiction, 2 Oct 1995
Case No. IT-95-11-T 197 12 June 2007
Todorovi} Sentencing Judgement Prosecutor v. Stevan Todorovi}, Case No. IT-95-9-1,
Sentencing Judgement, 31 Jul 2001
Vasiljevi} Appeal Judgement Prosecutor v. Mitar Vasiljevi}, Case No. IT-98-32-A,
Judgement, 25 Feb 2004
Vasiljevi} Trial Judgement Prosecutor v. Mitar Vasiljevi, Case No. IT-98-32-T,
Judgement, 29 Nor 2002
D. ICTR
Akayesu Trial Judgement Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-
4-T, Judgement, 2 Sep 1998
Gacumbitsi Appeal Judgement Prosecutor v. Sylvestre Gacumbitsi, Case No. ICTR-
2001-64-A, Judgement, 7 Jul 2006
Kambanda Appeal Judgement Prosecutor v. Jean Kambanda, Case No. ICTR-97-
23-A, Judgement, 19 Oct 2000
Kamuhanda Appeal Judgement Prosecutor v. Jean de Dieu Kamuhanda, Case No.
ICTR-99-54A-A, Judgement, 19 Sept 2005
Kayishema and Ruzindana Appeal
Judgement
Prosecutor v. Clément Kayishema and Obed
Ruzindana, Case No. ICTR-95-1-A, Judgement,
1 Jun 2001
Kayishema and Ruzindana Trial Judgement Prosecutor v. Clement Kayishema and Obed
Ruzindana, Case No. ICTR-95-1-T, Judgement, 21
May 1991
Musema Trial Judgement Prosecutor v. Alfred Musema, Case No. ICTR-96-13-
T, Judgement, 27 Jan 2000
Nahimana et al. Trial Judgement Prosecutor v. Ferdinand Nahimana et al., Case No.
ICTR-99-52-T, Judgement, 3 Dec 2003
Niyitegeka Appeal Judgement Prosecutor v. Eliézer Niyitegeka, Case No. ICTR-96-
14-A, Judgement, 9 Jul 2004
Ntakirutimana Appeal Judgement Prosecutor v. Elizaphan Ntakirutimana and Gérard
Ntakirutimana, Cases Nos. ICTR-96-10-A and ICTR-
96-17-A, Judgement, 13 Dec 2004
Rutaganda Trial Judgement Prosecutor v. Georges Anderson Nderubumwe
Rutaganda, Case No. ICTR-96-3-T, Judgement, 6
Dec 1999
Serushago Sentencing Appeal Judgement Prosecutor v. Omar Serushago, Case No. ICTR-98-
39-A, Judgement (Reasons), 6 Apr 2000
E. ICJ
ICJ Advisory Opinion Legality of the Threat or Use of Nuclear Weapons,
ICJ Advisory Opinion of 8 Jul 1996, I.C.J. Reports
1996
F. Other
ICRC Commentary on Geneva Convention
III
Jean S. Pictet, ed., Commentary: Geneva Convention
III Relative to the Treatment of Prisoners of War
(Geneva: ICRC, 1960)
ICRC Commentary on Geneva Convention
IV
Jean S. Pictet, ed., Commentary: Geneva Convention
IV Relative to the Protection of Civilian Persons in
Time of War (Geneva: ICRC, 1958)
Case No. IT-95-11-T 198 12 June 2007
ICRC Commentary on Additional Protocols Yves Sandoz, Christoph Swinarski and Bruno
Zimmernmann, eds., Commentary on the Additional
Protocols of 8 June 1977 to the Geneva Convention
of 12 August 1949 (Dordrecht: Martin Nijhoff
Publishers, 1987)
Customary International Humanitarian Law,
ICRC
Jean-Marie Henckaerts and Louise Doswald-Beck,
eds., International Committee of the Red Cross:
Customary International Humanitarian Law, Volume
I: Rules and Volume II: Practice (Cambridge:
Cambridge University Press, 2005)
Annex 466
Prosecutor v. Dragomir Miloševi, Case No. IT-98-29/1-T, Trial Chamber Judgment, p. 291,
para. 881 (12 December 2007)
UNITED
NATIONS
Case No. IT-98-29/1-T
Date: 12 December 2007
International Tribunal for the Prosecution of
Persons Responsible for Serious Violations of
International Humanitarian Law Committed in the
Territory of the Former Yugoslavia since 1991 Original: English
IN THE TRIAL CHAMBER III
Before: Judge Patrick Robinson, Presiding
Judge Antoine Kesia-Mbe Mindua
Judge Frederik Harhoff
Registrar: Mr. Hans Holthuis
Judgement of: 12 December 2007
PROSECUTOR
v.
DRAGOMIR MILO[EVI]
PUBLIC
JUDGEMENT
The Office of the Prosecutor:
Mr. Stefan Waespi
Ms. Carolyn Edgerton
Mr. John Docherty
Mr. Manoj Sachdeva
Ms. Maxine Marcus
Mr. Salvatore Cannata
Counsel for the Accused:
Mr. Branislav Tapu{kovi}
Ms. Branislava Isailovi}
CONTENTS
I. INTRODUCTION..........................................................................................................................1
II. EVIDENCE ...................................................................................................................................3
A. RELEVANT FACTUAL BACKGROUND ............................................................................................3
1. Sarajevo....................................................................................................................................3
2. Historical Background .............................................................................................................4
(a) The 1990 Elections................................................................................................................... 4
(b) Military Preparations for War .................................................................................................. 8
3. United Nations in Sarajevo ....................................................................................................10
(a) Structure of United Nations Mission...................................................................................... 10
(b) United Nations Area of Responsibility .................................................................................. 12
(c) Mandate.................................................................................................................................. 12
4. Peace Initiatives .....................................................................................................................15
(a) Demilitarised Zone - 14 August 1993 .................................................................................... 16
(b) Total Exclusion Zone (TEZ) - 9 February 1994 .................................................................... 17
(c) Anti-sniping Agreement - 14 August 1994 ............................................................................ 18
(d) Comprehensive Cessation of Hostilities Agreement - 23 December 1994............................ 20
(e) Collapse of TEZ Arrangements and NATO Attacks.............................................................. 21
B. MILITARY STRUCTURES AND CONFRONTATION LINES ...............................................................23
1. Structure of Military Units.....................................................................................................23
(a) VRS and SRK......................................................................................................................... 23
(b) ABiH and 1st Corps ................................................................................................................ 25
2. Weaponry...............................................................................................................................26
(a) Weaponry Available to the VRS and ABiH........................................................................... 26
(b) Specific Weapons................................................................................................................... 30
(i) Mortars................................................................................................................................ 30
(ii) Modified Air Bombs.......................................................................................................... 31
a. The Possession of Air Bombs by the VRS and the ABiH............................................... 35
Findings........................................................................................................................... 37
(iii) Snipers and Sniper Rifles ................................................................................................. 38
3. Areas of Responsibility and Confrontation Lines – SRK and 1st Corps of the ABiH...........39
(a) Central Parts of Sarajevo: Grbavica, Marindvor, Hrasno, Novo Sarajevo and Elevations .... 40
(b) South-East: Debelo Brdo, Zlatište, olina Kapa, Mount Trebevi........................................ 41
(c) South-West: Dobrinja, Nearii, Mojmilo Hill, Ilidža, Lukavica, Hrasnica, Sokolovii,
Mount Igman......................................................................................................................... 42
(d) North-West: Sokolje Hill, Vogoša, Ilijaš, Žu~ Hill, Hum Hill............................................. 44
(e) North-East: Sedrenik, Špicasta Stijena, Grdonj, Hreša.......................................................... 46
Findings ................................................................................................................................... 48
C. SARAJEVO 1992 TO AUGUST 1994..............................................................................................49
1. SRK Sniping and Shelling of Areas within the Confrontation Lines ....................................50
2. Effect on the Civilian Population within the Confrontation Lines ........................................53
3. Defence Evidence of ABiH Activities from 1992 to 1994 ....................................................58
D. CHALLENGE TO THE RELIABILITY OF THE INVESTIGATION BY BIH POLICE AND BIH POLICE
REPORTS...................................................................................................................................60
E. EVIDENCE PERTAINING TO THE “CAMPAIGN” IN THE INDICTMENT PERIOD.................................67
1. Patterns of Sniping and Shelling of Sarajevo ........................................................................67
2. Sniping and Shelling by the SRK ..........................................................................................69
3. Sniping during the Indictment Period ....................................................................................71
(a) Sniping by the SRK................................................................................................................ 72
(i) Public Transport.................................................................................................................. 74
(ii) Marindvor and Zmaja od Bosne ........................................................................................ 77
(iii) Other Sniping Locations................................................................................................... 79
(b) Anti-sniping Measures ........................................................................................................... 80
(c) Sniping by the ABiH .............................................................................................................. 81
4. Sniping Incidents Representative of the “Campaign” ...........................................................84
(a) Unscheduled Sniping Incidents .............................................................................................. 84
Finding..................................................................................................................................... 85
(b) Scheduled Sniping Incidents.................................................................................................. 86
(i) Sniping of Targets on Zmaja od Bosne .............................................................................. 86
a. Sniping of Alma ]utuna on 8 October 1994 ................................................................... 86
Findings........................................................................................................................... 90
b. Sniping of Hajrudin Hamidi} on 21 November 1994 ..................................................... 91
Findings........................................................................................................................... 93
c. Sniping of Hafiza Kara~i} and Sabina [abani} on 23 November 1994 .......................... 94
Findings........................................................................................................................... 97
d. Sniping of Senad Kešmer, Alma ^ehaji} and Alija Holjan on 27 February 1995.......... 97
Findings......................................................................................................................... 103
e. Sniping of Azem Agovi} and Alen Gi~evi} on 3 March 1995...................................... 104
Findings......................................................................................................................... 108
f. Sniping of D`enana Sokolovi} and Nermin Divovi} on 18 November 1994 ................ 109
Findings......................................................................................................................... 114
(ii) Sniping of Targets in Sedrenik ........................................................................................ 115
a. Sniping of Sanela Dedovi} on 22 November 1994 ....................................................... 115
Findings......................................................................................................................... 118
b. Sniping of Dervi{a Selmanovi} on 10 December 1994 ................................................ 118
Findings......................................................................................................................... 121
c. Sniping of Tarik Žuni} on 6 March 1995 ...................................................................... 122
Findings......................................................................................................................... 126
(iii) Sniping of Targets Elsewhere in Sarajevo...................................................................... 126
a. Sniping of Adnan Kasapovi} on 24 October 1994 ........................................................ 127
Findings......................................................................................................................... 131
b. Sniping of Fata Guta on 8 November 1994................................................................... 133
Findings......................................................................................................................... 135
c. Sniping of [emsa ^ovrk on 3 May 1995....................................................................... 136
Findings......................................................................................................................... 138
5. Shelling during the Indictment Period .................................................................................139
(a) Shelling by the SRK............................................................................................................. 139
(b) Shelling by the ABiH........................................................................................................... 145
6. Shelling Incidents Representative of the “Campaign”.........................................................147
(a) Unscheduled Shelling Incidents ........................................................................................... 147
Finding .............................................................................................................................. 148
(b) Scheduled Shelling Incidents ............................................................................................... 149
(i) Shelling of Livanjska Street on 8 November 1994........................................................... 149
Findings............................................................................................................................. 155
(ii) Shelling of Ba{~ar{ija Flea Market on 22 December 1994 ............................................. 156
Findings............................................................................................................................. 159
(iii) Shelling of a Residential Area in Hrasnica on 7 April 1995 .......................................... 159
Findings............................................................................................................................. 165
(iv) Shelling of Safeta Zajke Street on 24 May 1995 ............................................................ 166
Findings............................................................................................................................. 169
(v) Shelling of Majdanska Street on 24 May 1995................................................................ 170
Findings............................................................................................................................. 173
(vi) Shelling of Safeta Had`i}a Street on 26 May 1995 ........................................................ 174
Findings............................................................................................................................. 177
(vii) Shelling of the UMC and Oncology Department, Dositejeva, on 16 June 1995........... 178
Findings............................................................................................................................. 179
(viii) Shelling of Trg Me|unarodnog Prijateljstva on 16 June 1995 ..................................... 180
Findings............................................................................................................................. 183
(ix) Shelling of ^obanija Street on 16 June 1995.................................................................. 184
Findings............................................................................................................................. 185
(x) Shelling of a Water Distribution Point in Dobrinja on 18 June 1995 .............................. 186
Findings............................................................................................................................. 191
(xi) Shelling of TV Building on 28 June 1995 ...................................................................... 192
Findings............................................................................................................................. 205
(xii) Shelling of Buni~ki Potok Street on 1 July 1995........................................................... 206
Findings............................................................................................................................. 211
(xiii) Shelling of Bjela{ni~ka Street in Sokolovi}i on 23 July 1995...................................... 212
Findings............................................................................................................................. 215
(xiv) Shelling of the BITAS Building on 22 August 1995.................................................... 216
Findings............................................................................................................................. 220
(xv) Shelling of the Markale Market on 28 August 1995...................................................... 220
a. Number of dead and wounded....................................................................................... 221
b. Investigation of the Incident; Type of Shell.................................................................. 224
c. Direction of Fire ............................................................................................................ 225
d. Origin of Fire................................................................................................................. 227
e. Military Activities on 28 August 1995 .......................................................................... 230
f. Defence Submission of Tampering................................................................................ 230
g. Evidence of Col. Andrey Demurenko ........................................................................... 234
Findings......................................................................................................................... 238
7. Effects of Shelling and Sniping on Civilians.......................................................................241
(a) Daily Life ............................................................................................................................. 242
(b) Physical Impact .................................................................................................................... 245
(c) Psychological Impact ........................................................................................................... 247
(d) Ability to Leave Sarajevo .................................................................................................... 249
8. “Campaign” Strategy ...........................................................................................................251
9. The Defence Challenge to the Prosecution Allegation of a “Campaign”............................254
(a) Shelling of SRK-held Territories ......................................................................................... 255
(b) Sniping into SRK-held Territories ....................................................................................... 257
(i) Specific Sniping Incidents against Bosnian Serbs ............................................................ 258
(c) Defence Allegations of Provocation by the ABiH ............................................................... 259
(d) ABiH Offensives.................................................................................................................. 261
(e) Effect of Conflict on Bosnian Serbs..................................................................................... 264
General Findings on Sniping and Shelling ............................................................................ 266
F. EVIDENCE RELATING TO ROLE ACCUSED .................................................................................267
(a) Leadership of the Accused ................................................................................................... 267
(b) Involvement in and Awareness of Shelling and Sniping ..................................................... 270
(i) Effective Control............................................................................................................... 270
a. Effective Control over Sniping...................................................................................... 271
b. Effective Control over Shelling..................................................................................... 273
c. Effective Control over the Use of Modified Air Bombs ............................................... 274
(ii) Evidence Relating to the Defence of ‘Alibi’ ................................................................... 275
(iii) Orders of the Accused .................................................................................................... 277
(iv) Orders by the Accused to Prevent the Shooting of Civilians.......................................... 278
(v) Involvement in Attacks on UNPROFOR......................................................................... 279
(vi) Intent and Awareness of Crimes..................................................................................... 280
a. Awareness of Crimes..................................................................................................... 280
b. Intent of the Accused..................................................................................................... 282
(c) Investigations and Disciplinary Measures............................................................................ 284
III. FINDINGS ON THE COUNTS AND CRIMINAL LIABILITY OF THE ACCUSED...287
A. COUNT 1: TERROR....................................................................................................................287
1. General Requirements of Article 3 of the Statute................................................................287
2. The Crime of Terror.............................................................................................................288
(a) Actus Reus ............................................................................................................................ 289
(b) Mens Rea.............................................................................................................................. 290
(c) The Concept of “Terror” ...................................................................................................... 291
3. Evaluation of the Evidence ..................................................................................................293
(a) Civilian Status of the Population.......................................................................................... 293
(b) Terror ................................................................................................................................... 298
4. Counts 2 and 5: Murder .......................................................................................................301
(a) Attack ................................................................................................................................... 302
(b) Nexus between the Acts of the Perpetrator and the Attack.................................................. 302
(c) Directed against any Civilian Population............................................................................. 303
(d) Widespread or Systematic.................................................................................................... 304
(e) Mens Rea.............................................................................................................................. 305
5. Counts 3 and 6: Inhumane Acts...........................................................................................306
6. Counts 4 and 7: Unlawful Attacks against Civilians ...........................................................308
(a) Attack on Civilians............................................................................................................... 308
(b) Actus Reus ............................................................................................................................ 309
(c) Mens Rea.............................................................................................................................. 311
B. INDIVIDUAL CRIMINAL LIABILITY OF THE ACCUSED ................................................................312
1. Findings on Planning and Ordering .....................................................................................313
(a) Defence of “Alibi” ............................................................................................................... 317
(b) Conclusions.......................................................................................................................... 318
2. Has the Prosecution Charged the Individual Criminal Responsibility of the Accused under
Article 7(3) of the Statute as an Alternative to his Liability under Article 7(1) of the
Statute? ..............................................................................................................................319
IV. SENTENCING.........................................................................................................................320
1. Gravity and Individual Circumstances of the Convicted Person .........................................320
2. Aggravating and Mitigating Factors ....................................................................................322
(a) Aggravating Circumstances ................................................................................................. 322
(b) Mitigating Circumstances .................................................................................................... 324
3. General Practice Regarding Sentencing in the Former Yugoslavia.....................................325
V. DISPOSITION ..........................................................................................................................326
VI. ANNEX.....................................................................................................................................327
A. GLOSSARY................................................................................................................................327
General Abbreviations .............................................................................................................327
ICTY ........................................................................................................................................329
ICTR ........................................................................................................................................331
SCSL........................................................................................................................................332
1
Case No IT-98-29/1-T 12 December 2007
I. INTRODUCTION
1. The Accused, Dragomir Milo{evi}, is a Bosnian Serb, who was the commander of the
Sarajevo Romanija Corps (“SRK”) of the Army of the Republika Srpska (“VRS”) from August
1994 to November 1995. This case relates to alleged crimes that took place during the alleged siege
of Sarajevo in that time period.
2. Before the armed conflict started, the Accused was an officer in the Yugoslav People’s
Army (“JNA”). He served as a regimental Chief of Staff and Chief of Staff of the 49th Motorised
Brigade at Lukavica, which was part of the 4th Corps, 2nd Military District, based in Sarajevo.1
Sometime in 1990, the Accused became the Commander of the 216th Mountain Brigade of the
JNA.2 From 19 May 1992 onwards, he served as Commander of the 1st Romanija Infantry Brigade.3
From February 1993 until approximately April 1993, he was a staff officer in the VRS Drina
Corps.4 From on or about 6 July 1993, the Accused served as Chief of Staff and Deputy
Commander in the SRK under its commander Gen. Stanislav Gali.5 The Accused became
Commander of the SRK on or about 10 August 1994 and remained in that position until on or about
21 November 1995.6 He then held the rank of Major General and was immediately subordinate to
the Main Staff of the VRS, and Gen. Ratko Mladi}.7
3. The Accused was originally indicted with Stanislav Gali}.8 On 26 March 1999, the
Prosecution filed a revised Indictment with Dragomir Milo{evi} as the only Accused. The Accused
voluntarily surrendered to the authorities of Serbia and Montenegro and was transferred to the
United Nations Detention Unit in The Hague on 3 December 2004.9 At his initial appearance on
7 December 2004, the Accused pleaded not guilty to all counts insofar as they pertained to charges
against him.10 Following the decision of the Trial Chamber on a requested amendment of the
1 Agreed Facts, admitted into evidence by decisions of the Trial Chamber on 10 April 2007 (“Agreed Facts”), 2.
2 Agreed Fact 3; Stevan Veljovi, 30 May 2007, T. 5815 – 5816; Stevan Veljovi, 24 May 2007, T. 5712.
3 Agreed Facts 4, 5; Stevan Veljovi, 24 May 2007, T. 5712, 30 May 2007, T. 5817.
4 Agreed Fact 6.
5 Agreed Fact 7. See also, e.g., P661, Order by the SRK deputy commander, dated 16 July 1993; P662, Order by SRK
deputy commander, dated 17 January 1994; P208, Order by SRK deputy commander, dated 29 July 1994.
6 Agreed Fact 8. See also, e.g., T-15, 13 July 2007, T. 8307; Vaso Elez, 7 June 2007, T. 6323; Zoran Samardži, 13
June 2007, T. 6630; Zoran Trapara, 26 June 2007, T. 7300 – 7301; T-52, 28 June 2007, T. 7436.
7 See infra, Section II.F(b)(i) Effective Control
8 Prosecutor v. Stanislav Gali and Dragomir Miloševi, Case No. IT-98-29-I, Indictment, confirmed on 24 April 1998.
9 Initial Appearance Hearing, 7 Dec 2004, T. 3; Decision on Defence Motion for Provisional Release, 13 July 2005,
paras 13 - 19.
10 Initial Appearance Hearing, 7 Dec 2004, T. 1 – 15.
2
Case No IT-98-29/1-T 12 December 2007
Indictment and on the application of Rule 73bis (D) of the Rules of Procedure and Evidence,11 the
Prosecutor filed the Amended Indictment on 18 December 2006 (“Indictment”).
4. The trial opened on 10 January 2007 and the presentation of evidence and the arguments of
the Parties ended with the Closing Arguments on 10 October 2007. In total, the evidence of 138
witnesses was presented; there were 84 witnesses for the Prosecution and 53 witnesses for the
Defence. In addition, two persons appeared as witnesses for the Trial Chamber. A total of 935
exhibits for the Prosecution were admitted into evidence, as were 522 exhibits for the Defence.
Finally, 16 sets of photographs were admitted into evidence as court exhibits.
5. The Indictment charges the Accused with one count of terror as a violation of the laws or
customs of war, two counts of murder as a crime against humanity, two counts of inhumane acts as
a crime against humanity and two counts of unlawful attacks on civilians as a violation of the laws
or customs of war.
6. The Prosecution alleged that the Accused, as commander of the SRK, inherited, from Gen.
Stanislav Gali}, and perpetuated a “campaign of shelling and sniping” of civilians, civilian areas
and the civilian population of Sarajevo. This “campaign” was allegedly conducted by Bosnian Serb
forces comprising or attached to the SRK or affiliated with the VRS. It alleged that the attacks were
deliberate, indiscriminate or excessive and disproportionate in relation to the anticipated concrete
and direct military advantage. Also, according to the Prosecution, the alleged “campaign” had the
primary purpose of spreading terror within the civilian population of Sarajevo. The Prosecution
clarified that the incidents enumerated in the schedules to the Indictment are representative of the
“campaign”.
7. The Defence submitted that the Accused is not guilty and should, therefore, be acquitted.
The main Defence argument was that during the entire conflict in Bosnia and Herzegovina, the area
of Sarajevo and its environs was the theatre of serious conflict and heavy fighting. Accordingly, in
the Defence submission, one “cannot characterise this as a civilian area and speak of civilians as the
sole target at the time of the Indictment.”12
8. In accordance with Article 21(3) of the Statute, the Accused is presumed innocent until
proven guilty. The Appeals Chamber recently clarified that a Trial Chamber may only find an
accused guilty of a crime if the Prosecution has proved beyond reasonable doubt each element of
11 Prosecutor v. Dragomir Milo{evi}, Case No IT-98-29/1-PT, Decision on Amendment of Indictment and Application
of Rule 73bis (D), 12 December 2006.
12 Defence Closing Arguments, T. 9525.
3
Case No IT-98-29/1-T 12 December 2007
that crime and the mode of liability and any fact which is indispensable for the conviction.13 The
Prosecution, therefore, bears the burden of proving the guilt of the Accused and it must do so
beyond reasonable doubt. In evaluating circumstantial evidence, the Trial Chamber recalls that any
conclusion drawn from such evidence “must be the only reasonable conclusion available.”14
Findings in this Judgement are made on the basis of proof beyond reasonable doubt.
9. In its assessment of the case, the Trial Chamber considered the entirety of the trial record
and evaluated all the evidence that was presented and duly apportioned the weight to be given to it.
It emphasises that if a piece of evidence is not mentioned in this Judgement, that does not mean that
it has not been considered.
II. EVIDENCE
A. Relevant Factual Background
1. Sarajevo
10. The city of Sarajevo is the capital of the Republic of Bosnia and Herzegovina (“BiH”) and is
situated in a valley on an east-west axis along the Miljacka River.15 The city is a densely-populated
urban area, surrounded by steep slopes.16 To the East, the city centre is constituted by the residential
and commercial old town, which spreads up the adjacent hillsides.17 To the West, there are new
municipalities comprising residential and commercial areas on more open ground.18 The central
area of Sarajevo is composed of six municipalities, namely Sarajevo Centar, Ilid`a, Novi Grad,
Novo Sarajevo, Stari Grad and Vogo{a.19 The broader Sarajevo area includes four other
municipalities, which are Had`i}i, Ilija{, Pale and Trnovo.20 By 1990, the city had over half a
million residents.21
13 Prosecutor v. Sefer Halilovi}, Case No. IT-01-48-A, Judgement, 16 October 2007 (“Halilovi Appeal Judgement”),
para. 125.
14 Prosecutor v. Zejnil Delali et al., Case No. IT-96-21-A, Judgement, 20 February 2001 (“^elebi}i Appeal
Judgement”), para. 458.
15 David Harland, 15 Jan 2007, T. 364, 369 – 370; W-138, 1 Feb 2007, T. 1432 – 1433; P104, Street map of Sarajevo;
Agreed Fact 16.
16 Agreed fact 17; W-138, 1 Feb 2007, T. 1432 – 1433; Sanjin Hasanefendi}, 16 Feb 2007, T. 2291; W-50, 28 Feb
2007, T. 2889; Stevan Veljovi}, 24 May 2007, T. 5719 – 5721.
17 Agreed fact 18.
18 Agreed fact 19.
19 Ewa Tabeau, 1 May 2007, T. 5442 – 5443, 5457 – 5458; Adjudicated Facts, admitted into evidence by decisions of
the Trial Chamber on 10 April 2007 and 18 July 2007 (“Adjudicated Facts”), 19. Milorad Kati} testified that in 1994,
the city of Serb Sarajevo was established, consisting of six municipalities, all bearing the same name as the
municipalities of the central area of Sarajevo, Milorad Kati}, 1 June 2007, T. 6007. Cf. Zoran Samard`i}, 13 June 2007,
T. 6638 – 6639.
20 Ewa Tabeau, 1 May 2007, T. 5442 – 5443, 5457 – 5458; Adjudicated Fact 19.
21 P472, Expert report Robert Donia on the making of the Sarajevo siege 1990 – 1994, dated December 2006 (“Expert
report Robert Donia”), p. 6.
4
Case No IT-98-29/1-T 12 December 2007
11. Sarajevo was well-known as a multi-ethnic, multi-religious city, with a long history of
religious and cultural tolerance.22 Robert Donia, who testified for the Prosecution as an expert on
the history of Bosnia and Herzegovina, stated that a “multiethnic life” flourished in Sarajevo.23
Several Defence witnesses testified that no problems existed between the different ethnic groups in
Sarajevo.24 In 1991, the ethnic composition of the population of Sarajevo was similar to the
population of Bosnia and Herzegovina in general; according to Robert Donia, it was “simply
impossible” to define areas of Bosnia and Herzegovina on the basis of ethnicity.25 However, in
Sarajevo, the percentage of Bosnian Muslims was somewhat higher and the city housed
considerably less Bosnian Croats.26 The municipalities of Had`i}i, Ilija{, Pale and Trnovo had,
compared to the rest of Sarajevo, a somewhat higher percentage of Bosnian Serbs.27
2. Historical Background
(a) The 1990 Elections
12. The first multi-party elections in the Socialist Federal Republic of Yugoslavia (“SFRY”)
were held in the republics of Croatia and Slovenia in April and May 1990.28 Elections in the other
republics, including Bosnia and Herzegovina, took place in November and December 1990.29
According to Robert Donia, the elections took place in a context of differing views as to whether
the republics should have greater autonomy from the SFRY or whether the SFRY should be further
strengthened.30
13. In the November 1990 elections in Bosnia and Herzegovina, the three nationalist parties
prevailed.31 The Serb Democratic Party (“SDS”) won the majority of votes of the Bosnian Serbs,
the Croatian Democratic Party (“HDZ”) won most of the votes of Bosnian Croats and the Party of
Democratic Action (“SDA”) was supported by the majority of Bosnian Muslims.32 In Sarajevo, the
percentage of people who voted for non-nationalist candidates was higher than in the Republic as a
22 Milan Mandilovi}, 18 Jan 2007, T. 609; Dženana Sokolovi}, 22 Jan 2007, T. 763 – 764.
23 P472, Expert report Robert Donia, p. 7.
24 Sini{a Krsman, 5 June 2007, T. 6232, 6 June 2007, T. 6247; Vaso Elez, 6 June 2007, T. 6304 – 6305; Zoran
Samard`i}, 13 June 2007, T. 6614 – 6615; Luka Jovi}, 14 June 2007, T. 6694 – 6695; T-2, 20 June 2007, T. 6961.
25 Robert Donia, 16 Mar 2007, T. 3927 – 3928; P472, Expert report Robert Donia, pp 6 - 8, Appendix B. According to
the 1991 census, approximately 1.4 million Serbs, about 770,000 Croats, and approximately two million Muslims, lived
in Bosnia and Herzegovina, ibid. See also Adjudicated Fact 2.
26 P472, Expert report Robert Donia, p. 7. Approximately ten per cent of Sarajevans referred to themselves as
“Yugoslavs”, P472, Expert report Robert Donia, pp 7 – 8.
27 P472, Expert report Robert Donia, p. 8. See also Adjudicated Facts 20 – 21 and, in relation to Rajlovac, Sini{a
Krsman, 5 June 2007, T. 6231.
28 P472, Expert report Robert Donia, p. 5.
29 P472, Expert report Robert Donia, p. 5.
30 Robert Donia, 16 Mar 2007, T. 3949 – 3951; P472, Expert report Robert Donia, p. 9.
31 P472, Expert report Robert Donia, p. 5; Adjudicated Fact 3.
32 P472, Expert report Robert Donia, p. 5.
5
Case No IT-98-29/1-T 12 December 2007
whole.33 Still, together the three nationalist parties won over 50 per cent of seats in the city council
of Sarajevo.34 After the elections, the leaders of the SDA, the SDS and HDZ divided key positions
amongst themselves.35 In November 1990, Alija Izetbegovi} became President of the Bosnia and
Herzegovina Republic.36
14. Robert Donia gave evidence that shortly after the 1990 elections, the SDS leaders started to
promote regional “communities of municipalities” with the purpose of securing control over the
Bosnian Serb-inhabited areas of Bosnia and Herzegovina.37 In April 1991, SDS delegates in the
municipal assembly of Pale, which was the Sarajevo municipality with the highest percentage of
Bosnian Serb inhabitants and SDS municipal assembly delegates, announced their intention to
secede from “the city of Sarajevo.”38
15. In the autumn of 1991, the Serb Autonomous Region (“SAO”) Romanija-Bira was
proclaimed in the Sarajevo area.39 In December 1991, the SDS Main Board directed SDS municipal
boards throughout Bosnia and Herzegovina to establish Bosnian Serb institutions, including a
“Crisis Staff of the Serb People” and an “Assembly of the Serb People” or a “Serb Municipality”.40
At the end of 1991 and the beginning of 1992, Bosnian Serb nationalists in the area of Sarajevo
created separate, parallel Bosnian Serb institutions at the city and municipal levels.41 On 24
December 1991, the SDS formed a Crisis Staff for Sarajevo.42 Also in December 1991, the SAO
Romanija was created as a separate entity from SAO Bira so that it could focus on Sarajevo and its
surrounding areas.43
16. At the same time, leaders of the SDA and the HDZ took steps towards greater sovereignty or
independence for Bosnia and Herzegovina.44 In October 1991, President Alija Izetbegovi} led SDA
33 P472, Expert report Robert Donia, p. 8.
34 P472, Expert report Robert Donia, p. 8. Regarding Novo Sarajevo, see Milorad Kati}, 31 May 2007, T. 5959, 5962.
35 P472, Expert report Robert Donia, p. 9; Adjudicated Fact 3.
36 Adjudicated Fact 4.
37 P472, Expert report Robert Donia, p. 10.
38 P472, Expert report Robert Donia, p. 10. This followed shortly after SDS leaders formally declared the first
Bosnian Serb-led regional body, the “Community of Municipalities of Bosnian Krajina”, in north-west Bosnia and
Herzegovina, ibid.
39 P472, Expert report Robert Donia, p. 11. At the same time, three other SAOs were proclaimed, ibid; Adjudicated
Fact 6.
40 P472, Expert report Robert Donia, pp 13 - 14. SDS members dominated these institutions, ibid. Rade Ivanovi}
testified that a Crisis Staff was created in Trnovo. He was questioned extensively on the matter, but denied knowledge
of P757, SDS instructions on the organisation of the Serbian people, as did Rade Ivanovic, 4 July 2007, T. 7653 – 7655,
6 July 2007, T. 7796 – 7809; Milorad Kati}, 4 June 2007, T. 6123 – 6124. Cf. P808, Minutes of SDS Crisis Staff
Trnovo meeting held on 29 April 1992 (“Minutes Trnovo Crises Staff”); P810, Minutes of Territorial Defence
Command of the Serbian people; P758, Report on activities by Serbian municipality of Novo Sarajevo, dated 5 June
1992.
41 P472, Expert report Robert Donia, pp 12 - 14.
42 P472, Expert report Robert Donia, p. 14. This Crisis Staff included members of the SDS Main Board, Ibid.
43 P472, Expert report Robert Donia, p. 12.
44 P472, Expert report Robert Donia, p. 12.
6
Case No IT-98-29/1-T 12 December 2007
and HDZ delegates in promoting a “Platform of the Presidency of the Socialist Republic of BiH”
and a “Declaration of Sovereignty” in the Bosnian Assembly, which was opposed by the SDS
members.45 In the early hours of 15 October 1991, and in the absence of SDS delegates, the
Platform and the Declaration were approved by HDZ and SDA delegates.46
17. On 9 and 10 November 1991, the SDS held a plebiscite, asking voters whether they wished
to remain in the SFRY.47 In his report, Robert Donia stated that “few non-Serbs voted” and that
Bosnian Serbs voted overwhelmingly to remain in the SFRY.48 The outcome of the plebiscite was
cited by SDS as justification for establishing a separate Serb state within Bosnia and Herzegovina.49
18. The above events were taking place in the context of the establishment of the European
Community Conference on Yugoslavia and the invitation from the European Community’s (“EC”)
Arbitration Commission, headed by Robert Badinter (“Badinter Commission”), to SFRY republics
to apply to be recognised as independent states.50 The Presidency of Bosnia and Herzegovina voted
to apply to the Badinter Commission on 20 December 1991, which led to the SDS leaders taking
further steps to establish a separate Bosnian Serb state.51 On 9 January 1992, the Bosnian Serb
Assembly proclaimed the “Serb Republic of BiH.”52
19. On 11 January 1992, the Badinter Commission recommended that Bosnia and Herzegovina
hold a referendum on its independence.53 Despite denunciations by the Bosnian Serb Assembly
against such a referendum, it was held at the end of February 1992.54 Bosnian Muslims and Croats
voted overwhelmingly for independence, while a large number of Bosnian Serbs boycotted the
referendum.55 Following the referendum, the EC declared its intent to recognise Bosnia and
Herzegovina as an independent state.56
20. On 2 March 1992, SDS members and supporters took up arms and set up barricades at key
transit points throughout Sarajevo.57 SDA members also erected barricades, often directly opposite
45 P472, Expert report Robert Donia, p. 12; Adjudicated Fact 7.
46 P472, Expert report Robert Donia, p. 12.
47 P472, Expert report Robert Donia, p. 13.
48 P472, Expert report Robert Donia, p. 13; Adjudicated Fact 8.
49 P472, Expert report Robert Donia, p. 13.
50 P472, Expert report Robert Donia, pp 20 - 21.
51 P472, Expert report Robert Donia, p. 21. See also D134, Minutes from 189th session of the President of the SFRY on
2 March 1992.
52 P472, Expert report Robert Donia, pp 20 - 21; Adjudicated Fact 10.
53 P472, Expert report Robert Donia, p. 21.
54 P472, Expert report Robert Donia, p. 21.
55 P472, Expert report Robert Donia, p. 21.
56 P472, Expert report Robert Donia, p. 21.
57 P472, Expert report Robert Donia, pp 21 -22; Luka Jovi}, 14 June 2007, T. 6693 – 6694; Adjudicated Fact 23.
7
Case No IT-98-29/1-T 12 December 2007
the SDS barriers.58 SDS party leaders said that the erection of the barricades was a spontaneous
response to a shooting at a wedding in Sarajevo’s Old Orthodox Church, in which the bridegroom’s
father was killed and an Orthodox priest was injured.59 T-48, a SRK soldier during the Indictment
period, testified that “after the killing at the wedding in Sarajevo, things escalated”.60 There was a
large protest in Sarajevo on 2 March 1992 demanding the removal of the barricades.61 The
barricades were removed that night, but some were re-erected on 3 March 1992.62 Also on 3 March
1992, the Presidency of Bosnia and Herzegovina declared the Republic an independent state.63
21. Peace demonstrations occurred intermittently over the next month.64 However, Defence
witness Dra`en Maunaga, a SRK soldier, gave evidence describing how there were “groupings in
the town along ethnic lines” and spoke of distrust arising between ethnic groups.65
22. BiH became independent on 7 April 1992, according to Robert Donia “by virtue of EC and
United States recognition”.66 Just prior to its recognition, large scale violence broke out in
Sarajevo.67 Milorad Kati}, the President of the Novo Sarajevo municipal assembly during the
Indictment period, heard reports of clashes and, when shots were heard in his home district of
Vraca, “people started to gather spontaneously and started asking for weapons because they
panicked”.68 A peace march that had begun on the night of 5 April 1992 was broken up when
gunfire from the roof of the Holiday Inn Hotel (“Holiday Inn”), which for some weeks had been the
SDS headquarters, killed some demonstrators.69 When the BiH police entered the building, they
arrested six gunmen but “Karad`i}, his entourage, and other gunmen had already left the hotel.”70
On the night of 6 April 1992, the central tramway depot and the old city were shelled and JNA units
took control of Sarajevo Airport.71
58 P472, Expert report Robert Donia, pp 21 p 22; Luka Jovi, 14 June 2007, T. 6693 – 6694; Adjudicated Fact 23. Bakir
Naka{ did not agree with the Defence submission that the SDS barricades were erected in response to this killing and
barricades put up by the SDA. Rather, he said, the SDS put up barricades in response to the referendum, Bakir Nakaš,
29 Jan 2007, T. 1131 – 1132.
59 P472, Expert report Robert Donia, p. 22. See also D134, Minutes from 189th session of the President of the SFRY on
2 March 1992. According to Sini{a Krsman, “he was killed only because he was carrying a Serb flag”, Sini{a Krsman,
5 June 2007, T. 6232.
60 T-48, 22 June 2007, T. 7057 – 7058, 7130.
61 P472, Expert report Robert Donia, p. 22.
62 P472, Expert report Robert Donia, p. 22.
63 Adjudicated Fact 15.
64 P472, Expert report Robert Donia, p. 22.
65 Dražen Maunaga, 11 June 2007, T. 6468 – 6469, 6470 – 6471, 6477.
66 P472, Expert report Robert Donia, p. 21.
67 P472, Expert report Robert Donia, p. 23; Adjudicated Fact 25.
68 Milorad Kati}, 31 May 2007, T. 5965 – 5966, 5976 – 5977. See also Dražen Maunaga, 11 June 2007, T. 6474.
Robert Donia mentions, in his report, that the police academy in Vraca was attacked on 5 April 1992, P472, Expert
report Robert Donia, p. 23. Adjudicated Fact 26 states that it was the JNA that attacked the academy in Vraca.
69 P472, Expert report Robert Donia, p. 23.
70 P472, Expert report Robert Donia, p. 23.
71 P472, Expert report Robert Donia, p. 23.
8
Case No IT-98-29/1-T 12 December 2007
23. On 27 April 1992, the SFRY was re-organised so that it consisted of only the republics of
Serbia and Montenegro, along with Kosovo and Vojvodina, and a new constitution was adopted.72
On the same day, the BiH Presidency ordered the JNA to withdraw from BiH, and when it failed to
do so, special police of the BiH Ministry of Interior (“MUP”) and other units loyal to the BiH
Government surrounded some of the JNA facilities in Sarajevo.73 The JNA soldiers and the army
command were deprived of food and electricity, and some clashes ensued, resulting in casualties.74
According to Dra`en Maunaga, “the barracks were constantly under pressure and there were
attempts to break into them, to take and seize weapons”.75 In addition, Radomir Visnji}, Assistant
Commander for Logistics in the SRK 1st Sarajevo Brigade, testified that there was a “massacre” of
officers, non-commissioned officers and other staff in Skenderija.76 The JNA troops and their
equipment were hostages in the negotiations that followed to ensure their withdrawal from BiH.77
24. According to Col. Luka Dragi~evi}, Assistant Commander for Morale, Religious and Legal
issues in the SRK during the Indictment period, when the JNA were withdrawing from BiH,
incidents took place in which JNA soldiers were killed. The “most outstanding example” was the
pullout of the command of the “2nd Army” under the auspices of UNPROFOR, during which “a
marching column and a convoy of vehicles was cut in two and over 100 men were killed on
Dobrovoljaka Street” on 2 May 1992.78 On 4 May 1992, the Yugoslav Presidency also ordered the
withdrawal of JNA forces from BiH within 15 days, which resulted in the JNA leaving “most heavy
weaponry” and the vast majority of troops in the hands of the Bosnian Serb forces.79 On 22 May
1992, BiH became a member state of the United Nations.80
(b) Military Preparations for War
25. From 1990 onwards, the JNA gradually became dominated by Serb and Montenegrin
officers; members from other nationalities left the JNA, often to join the forces that the JNA were
72 P472, Expert report Robert Donia, p. 31.
73 P472, Expert report Robert Donia, pp 31 – 32; Bakir Naka{, 29 Jan 2007, T. 1134; Milan Mandilovi}, 18 Jan 2007,
T. 611; Stevan Veljovi}, 24 May 2007, T. 5709 – 5710; Goran Kova~evi}, 12 June 2007, T. 6545.
74 Luka Dragi~evi}, 26 Mar 2007, T. 4005 – 4006; Stevan Veljovi}, 24 May 2007, T. 5711 – 5712; Bakir Naka{, 29 Jan
2007, T. 1134.
75 Dražen Maunaga, 11 June 2007, T. 6476.
76 Radomir Visnji}, 25 June 2007, T. 7228 – 7229, 7236.
77 P472, Expert report Robert Donia, p. 32.
78 Luka Dragi~evi}, 26 Mar 2007, T. 3970, 4006 – 4007; Bakir Naka{, 29 Jan 2007, T. 1133 – 1134; Stevan Veljovi},
24 May 2007, T. 5711; Dragan Simi}, 5 June 2007, T. 6163; Dražen Maunaga, 11 June 2007, T. 6475 – 6476.
79 P472, Expert report Robert Donia, p. 24; Stevan Veljovi}, 24 May 2007, T. 5710 – 5711; Milosav Gagovi}, 23 July
2007, T. 8689, 8691; Rupert Smith, 7 Mar 2007, T. 3359; Džemaludin Luinovi, 1 Mar 2007, T. 2966; Luka
Dragievi, 26 Mar 2007, T. 4007; W-156, P625, p. 35 (under seal); Dražen Maunaga, 11 June 2007, T. 6476–6477,
12 June 2007, T. 6513; Momilo Gojkovi, 13 July 2007, T. 8246; P819, Excerpt from Bosnian Serb Assembly
50th session on15 and 16 April 1995.
80 Agreed Fact 21; Adjudicated Fact 45.
9
Case No IT-98-29/1-T 12 December 2007
fighting.81 Robert Donia noted that the “inclination” of many JNA officers to support the Bosnian
Serbs became well-known.82
26. In 1991 and early 1992, the three nationalist groups, the SDS, the HDZ and the SDA began
to prepare militarily for war.83 While the SDS, co-ordinating with JNA units in Bosnia and
Herzegovina, secured political control in Bosnian Serb-inhabited areas, “the JNA’s redeployment
of arms to the SDS was to bestow military advantages on the Bosnian Serb nationalists when armed
conflict began in April 1992.”84 In a speech to the 50th Bosnian Serb Assembly session in April
1995, Radovan Karad`i} said: “distribution of arms was carried out thanks to the JNA. What
could be withdrawn was withdrawn and distributed to the people in Bosnian Serb areas, but it was
the SDS which organised the people and created the army.”85
27. Evidence was also presented concerning Territorial Defence (“TO”) units and paramilitary
groups. Robert Donia explained that the locally organised TO constituted an integral component of
the SFRY’s system of defence.86 TO units were designed to operate even in the absence of the JNA
and were, consequently, provided with light weapons.87 In May 1990, the JNA ordered the removal
of weapons from the control of local TO units to its own armoury, citing concerns about the
security of the weapons.88 According to Robert Donia, while this order was largely complied with,
many TO units in Bosnia and Herzegovina either retained their weapons or acquired new weapons
in 1991 and early 1992.89
28. Bosnian Muslim leaders of SDA “sponsored the creation of two paramilitary groups”: the
Patriotic League and the Green Berets.90 The Patriotic League was formally established as a party
instrument of the SDA on 10 June 1991 and it was effectively organised by January 1992.91 Robert
Donia noted that the Patriotic League had a large number of volunteers, but that there was a “great
paucity of weaponry and ammunition.”92 Col. Dragi~evi}, on the other hand, testified that the
Patriotic League and the Green Berets came from Croatia and went to Bosnia and Herzegovina
81 Robert Donia, 16 Mar 2007, T. 3958; P472, Expert report Robert Donia, p. 17.
82 P472, Expert report Robert Donia, p. 18.
83 P472, Expert report Robert Donia, p. 16.
84 P472, Expert report Robert Donia, pp 16, 20.
85 P472, Expert report Robert Donia, pp 19 - 20.
86 Robert Donia, 16 Mar 2007, T. 3959 – 3960; P472, Expert report Robert Donia, p. 17. See also Goran Kova~evi},
13 June 2007, T. 6576 – 6577.
87 Robert Donia, 16 Mar 2007, T. 3959 – 3960; P472, Expert report Robert Donia, p. 17.
88 P472, Expert report Robert Donia, p. 17.
89 P472, Expert report Robert Donia, p. 17. See also Radomir Visnji}, 25 June 2007, T. 7225 – 7226; Goran Kova~evi},
13 June 2007, T. 6566 – 6567.
90 Robert Donia, 16 Mar 2007, T. 3951; P472, Expert report Robert Donia, p. 16.
91 Robert Donia, 16 Mar 2007, T. 3951, 3952 – 3953; Dražen Maunaga, 11 June 2007, T. 6470 – 6472; D133, Excerpts
from the book “The Cunning Strategy” by Sefer Halilovi. Cf Vahid Karaveli}, 27 Mar 2007, T. 4139.
92 Robert Donia, 16 Mar 2007, T. 3952 – 3953.
10
Case No IT-98-29/1-T 12 December 2007
“already trained and with battle experience.”93 Defence witnesses testified about the fear that
resulted from the arming of Bosnian Muslims and the behaviour of the Green Berets and the
Patriotic League.94
29. In the two months following the outbreak of violence on 6 April 1992, civilian leaders of all
groups consolidated their military organisations. This resulted in the establishment of the Croatian
Defence Council (“HVO”), the Armed Forces of the Republic of Bosnia and Herzegovina
(“ABiH”) and the VRS.95 The first step in the creation of the ABiH was an order from the BiH
Presidency consolidating the armed units under the Republic’s TO command.96 Radomir Visnji},
testifying for the Defence, noted that the HVO and the ABiH co-operated until 1993, when conflict
broke out between the BiH and Croatia.97
3. United Nations in Sarajevo
30. The Trial Chamber heard the evidence of many former members of United Nations
Protection Force (“UNPROFOR”) and United Nations Military Observers (“UNMO”) as to the
mandate and tasks of the international forces deployed in Sarajevo during the Indictment period.
The evidence set out in this section is largely uncontested.
(a) Structure of United Nations Mission
31. During the Indictment period, Gen. Bertrand Janvier was the commander of UNPROFOR
for the entire SFRY.98 The UNPROFOR headquarters for the SFRY were in Zagreb.99 There were
subordinate commanders for Croatia, Macedonia and BiH, the latter being situated in Sarajevo.100
During the Indictment period, Gen. Michael Rose was the UNPROFOR Commander for BiH until
23 January 1995, at which point he was succeeded by Gen. Rupert Smith.101 Brig. Gen. Brinkman
93 Luka Dragi~evi}, 26 Mar 2007, T. 4004.
94 Sini{a Krsman, 6 June 2007, T. 6239 – 6240; Vaso Elez, 6 June 2007, T. 6303 – 6304; Dražen Maunaga, 11 June
2007, T. 6470 – 6471, 6472 – 6475; Luka Jovi}, 14 June 2007, T. 6694 – 6695; Miroslav Peji}, 16 July 2007, T. 8362,
8364; T-9, 16 July 2007, T. 8341 – 8342.
95 P472, Expert report Robert Donia, p. 24; Sini{a Krsman, 6 June 2007, T. 6245; Ljuban Mrkovi}, 12 July 2007,
T. 8134; Vaso Elez, 7 June 2007, T. 6320; T-7, 18 June 2007, T. 6802; Adjudicated Facts 17, 48.
96 P472, Expert report Robert Donia, p. 24. See also Radomir Visnji}, 25 June 2007, T. 7226 – 7227.
97 Radomir Visnji}, 25 June 2007, T. 7227; Martin Bell, 27 Apr 2007, T. 5282.
98 Andrey Demurenko, 5 July 2007, T. 7684; Cornelis Hendrik Nicolai, 24 Jan 2007, T. 931; Rupert Smith, P334, p. 7.
99 P472, Expert report Robert Donia, p. 33.
100 Cornelis Hendrik Nicolai, 24 Jan 2007, T. 931; Rupert Smith, 7 Mar 2007, T. 3295 – 3297.
101 David Fraser, 7 Feb 2007, T. 1758; Rupert Smith, 7 Mar 2007, T. 3339. At the time Rupert Smith arrived in
Sarajevo, he held the rank of Lt. Col., Rupert Smith, P334, p. 2.
11
Case No IT-98-29/1-T 12 December 2007
was the UNPROFOR Chief of Staff for Bosnia and Herzegovina from mid-1994 onwards.102 He
was replaced by Maj. Gen. Cornelis Hendrik Nicolai on 28 February 1995.103
32. The UNPROFOR mission in Bosnia and Herzegovina was divided into three main sectors,
Sector Sarajevo, Sector North-East and the Sector South-West, each with its own commander.104
The headquarters of Sector Sarajevo was located in the PTT Building in Sarajevo.105 Sector
Sarajevo had deputy commanders, one of whom was the Chief of Staff.106
33. UNMO for BiH was was organised in three sectors: Sector North, Sector South and Sector
Sarajevo.107 The UNMO Chief for Bosnia and Herzegovina also had a liaison officer in Pale.108 The
UNMO headquarters of Sector Sarajevo was also located in the PTT Building.109 The UNMO
Sector Sarajevo was headed by a senior military observer, in a one-year rotation.110 In Sector
Sarajevo, UNMOs in SRK barracks in Lukavica acted as liaison officers.111
34. According to Maj. Gen. Nicolai, UNMOs were part of the UNPROFOR command structure
but reported directly to the UNMO headquarters in Zagreb.112 Maj. Ronald Eimers, a Dutch
UNMO, recalled that, unlike higher command levels, UNPROFOR Sarajevo did not exercise much
control and command over UNMO Sarajevo.113 However, as the operations rooms of the
UNPROFOR Sector Sarajevo headquarters and UNMO Sector Sarajevo headquarters were next to
each other in the same building, there were frequent contacts between the UNMO Chief for BiH
and the UNPROFOR Commander in Sarajevo.114
102 Rupert Smith, P334, p. 2; For tasks of a Chief of Staff, see Cornelis Hendrik Nicolai, 24 Jan 2007, T. 936, 970.
103 Cornelis Hendrik Nicolai, 24 Jan 2007, T. 930.
104 Cornelis Hendrik Nicolai, 24 Jan 2007, T. 930 – 931; David Fraser, 7 Feb 2007, T. 1757 – 1758; W-46, P387, p. 7
(under seal). In addition, there was a small command for the Biha area, Cornelis Hendrik Nicolai, 24 Jan 2007, T. 931.
The sector commanders were subordinated to the UNPROFOR commander for Bosnia and Herzegovina, Cornelis
Hendrik Nicolai, 24 Jan 2007, T. 930.
105 Agreed Facts 22, 41; David Harland, 15 Jan 2007, T. 342; Louis Fortin, P27, p. 15; P19, UNPROFOR sitrep, 2 July
1995, p. 3.
106 Andrey Demurenko, 5 July 2007, T. 7725 – 7728; Cornelis Hendrik Nicolai, 24 Jan 2007, T. 936, 25 Jan 2007,
T. 1045.
107 Ghulam Muhammad Mohatarem, 19 Jan 2007, T. 700. Sector North was based in Tuzla, Sector South was based in
Konji}. There were also teams in Gora`de, Žepa, and Srebrenica, ibid.
108 Ghulam Muhammad Mohatarem, 19 Jan 2007, T. 699 – 700.
109 Per Anton Brennskag, 8 Mar 2007, T. 3478; Thomas Knustad, 13 Feb 2007, T. 1986; Asam Butt, 14 Feb 2007,
T. 2159; Harry Konings, 12 Mar 2007, T. 3555.
110 Ghulam Muhammad Mohatarem, 19 Jan 2007, T. 700.
111 Ronald Eimers, 20 Apr 2007, T. 4788. The call sign to contact these liaisons officers was “Lima”, ibid.
112 Cornelis Hendrik Nicolai, 24 Jan 2007, T. 932. See also Ghulam Muhammad Mohatarem, 19 Jan 2007, T. 699 –
700, who testified that his immediate superior was in Zagreb but that his tasks included advising the UNPROFOR
Commander.
113 Ronald Eimers, P585, pp 2 - 3; Louis Fortin, P27, p. 6; W-46, 16 Mar 2007, T. 3900 (closed session).
114 Ghulam Muhammad Mohatarem, 19 Jan 2007, T. 699; Thomas Hansen, 2 Apr 2007. T. 4383 – 4384. Ronald Eimers
stated that when he reported to the PTT Building, he saw personnel from the UNMO headquarters and sector command
going into each other’s offices, which implied a sharing of information, but that he did not know of any formal sharing
of information, Ronald Eimers, P585, p. 3.
12
Case No IT-98-29/1-T 12 December 2007
(b) United Nations Area of Responsibility
35. The UNPROFOR area of responsibility included the area within the confrontation lines, as
well as the surrounding area, extending up to 20 kilometres.115 UNPROFOR Observation Posts
(“OPs”) were mainly situated on the confrontation lines between the territories held by the ABiH
and the SRK.116 Additional posts were situated in the area of the Grbavica Stadium and on Mojmilo
Hill.117 From this latter OP, several places, particularly Sarajevo Airport, were monitored.118
UNPROFOR also held positions on Mali Hum, on Igman Road, Debelo Brdo and the Vrbanja
Bridge.119
36. UNMO teams were stationed on Bosnian Serb territory as well as on Bosnian Muslim
territory.120 However, most of the United Nations presence was in ABiH-controlled areas, where
there was sufficient freedom of movement to allow the UNMOs to carry out their mandate.121 There
were four UNMO teams stationed in Sector Sarajevo. Each UNMO team was assigned to a different
part of the city. One team was located in the eastern part of Sarajevo; two teams were deployed in
the centre of Sarajevo, one of those inside the confrontation lines and the other in Grbavica; and a
final team was in the western part of the city.122 As it was with UNPROFOR OPs, many of the
UNMO OPs were situated on the confrontation lines between the two warring factions.123
(c) Mandate
37. UNPROFOR was initially mandated to operate as a peacekeeping force in Croatia to
monitor compliance with the Vance Plan of January 1992.124 This mandate was later expanded to
include the territory of BiH.125 By 1993, UNPROFOR’s mandate as it applied throughout BiH,
including Sarajevo, was expanded to allow it to “deter attacks against the safe areas, monitor the
cease-fire, promote the withdrawal of military or paramilitary units other than those of the
115 Andrey Demurenko, 5 July 2007, T. 7664 – 7665; D285, Map of Sarajevo marked by Andrey Demurenko.
116 Louis Fortin, 17 Jan 2007, T. 516.
117 Louis Fortin, 17 Jan 2007, T. 516, 521; Asam Butt, 15 Feb 2007, T. 2179; P223, Photograph marked by Asam Butt.
118 Louis Fortin, 17 Jan 2007, T. 521; Ismet Hadži}, 6 Mar 2007, T. 3215. See also P331, Map of Sarajevo, for the
location of this OP.
119 David Harland, 16 Jan 2007, T. 442; David Fraser, 7 Feb 2007, T. 1766; Asam Butt, 15 Feb 2007, T. 2179, 2221 –
2223; Milorad Kati}, 4 June 2007, T. 6071; P5, Codicil to the Anti-sniping Agreement, dated 1 October 1994 P752,
Photograph of Sarajevo.
120 Asam Butt, 14 Feb 2007, T. 2159 – 2160.
121 Ghulam Muhammad Mohatarem, 19 Jan 2007, T. 712.
122 Thomas Knustad, 13 Feb 2007, T. 1986 – 1987; Asam Butt, 14 Feb 2007, T. 2152 – 2153.
123 W-46, 16 Mar 2007, T. 3867 – 3868 (closed session).
124 P472, Expert report Robert Donia, p. 33. See also Adjudicated Fact 13.
125 P472, Expert report Robert Donia, p. 33; Adjudicated Facts 36 – 37.
13
Case No IT-98-29/1-T 12 December 2007
Government of the Republic of Bosnia and Herzegovina, and to occupy some key points on the
ground”.126
38. UNPROFOR Sector Sarajevo was responsible, inter alia, for observing the confrontation
lines, facilitating the provision of humanitarian relief to the population and standing impartially
between the two warring factions.127 UNPROFOR considered it one of its tasks to create conditions
conducive to ending the hostilities.128 It tried to reach agreements with all parties and supervised
compliance with these agreements.129 It talked to both warring factions about sniping and shelling
incidents and about freedom of movement for the inhabitants of Sarajevo.130 In case of violations of
agreements, UNPROFOR sent protest letters to the parties.131 Military force could be deployed in
order to enforce compliance with the agreements but was considered as the ultimate measure.132
39. UNMOs were unarmed.133 Their tasks were to observe, investigate and report on the general
situation, including the military and humanitarian situation, in the areas where they were
deployed.134 According to Maj. Gen. Nicolai, UNMOs played an important role in monitoring the
compliance with agreements and cease-fires by the warring parties.135 In Sarajevo, UNMOs were
also tasked with observing and investigating shelling and sniping incidents.136
126 P472, Expert report Robert Donia, p. 33; P931, Security Council resolution 836 (1993), 4 June 1993, para. 5. By
Security Council resolution 824 of 6 May 1993, the “protected zones”, one of which was Sarajevo, became part of
UNPROFOR’s mandate, David Harland, 15 Jan 2007, T. 358; P930, Security Council resolution 824 (1993), 6 May
1993, para. 3.
127 P472, Expert report Robert Donia, p. 33; P931, Security Council resolution 836 (1993), 4 June 1993, para. 5; Louis
Fortin, 17 Jan 2007, T. 514; Cornelis Hendrik Nicolai, 24 Jan 2007, T. 983; W-46, 16 Mar 2007, T. 3867 (closed
session); Adjudicated Fact 39.
128 Cornelis Hendrik Nicolai, 24 Jan 2007, T. 954 – 956.
129 Cornelis Hendrik Nicolai, 24 Jan 2007, T. 933; Louis Fortin, 17 Jan 2007, T. 528 – 529. See e.g. P3, UNPROFOR
cable on Anti-sniping Agreement, dated 15 August 1994; P4, Memo on implementation of Anti-sniping Agreement,
dated 18 August 1994.
130 In Sarajevo, UNPROFOR forces tried to deter both sides, though primarily the Bosnian Serbs, from shooting at
civilians, David Fraser, 7 Feb 2007, T. 1771 – 1772, 8 Feb 2007, T. 1814; P202, UNPROFOR report on anti-sniping
measures, dated 25 June 1994 (“UNPROFOR report, 25 June 1994”). See also David Harland, 15 Jan 2007, T. 358,
364; Cornelis Hendrik Nicolai, 24 Jan 2007, T. 954 – 955; P630, Report of meeting between Sector Sarajevo and SRK,
dated 18 September 1995; P19, UNPROFOR situation report (“sitrep”), dated 2 July 1995; P20, UNPROFOR sitrep,
dated 8 July 1995.
131 Cornelis Hendrik Nicolai, 24 Jan 2007, T. 933 – 934.
132 Cornelis Hendrik Nicolai, 24 Jan 2007, T. 933 – 934, 954 – 955, 983.
133 Cornelis Hendrik Nicolai, 24 Jan 2007, T. 932; Thomas Hansen, 2 Apr 2007, T. 4388. UNMOs were traditionally
not armed. However, John Jordan gave evidence that occasionally, military observers carried handguns, John Jordan,
22 Feb 2007, T. 2693. Also, Lt. Col. Brennskag testified that he was an armed military observer, Per Anton Brennskag,
8 Mar 2007, T. 3449.
134 Thorbjorn Overgard, 18 Jan 2007, T. 629; Ronald Eimers, 20 Apr 2007, T. 4784; Thomas Hansen, 2 Apr 2007,
T. 4378 – 4379; Hussain Ijaz, 27 Apr 2007, T. 5405 – 5406. In this regard, Lt. Col. Konings testified that UNMOs lived
in civilian areas so that they could be approached directly by the civilians. Harry Konings, 12 Mar 2007, T. 3552 –
3553.
135 Cornelis Hendrik Nicolai, 24 Jan 2007, T. 930, 933 – 934; Thomas Knustad, 13 Feb 2007, T. 1988; T-52, 28 June
2007, T. 7471; Per Anton Brennskag, 8 Mar 2007, T. 3501; Ghulam Muhammad Mohatarem, 19 Jan 2007, T. 698 –
699.
136 Thomas Knustad, 13 Feb 2007, T. 1988; T-52, 28 June 2007, T. 7471.
14
Case No IT-98-29/1-T 12 December 2007
40. According to Brig. Ghulam Muhammad Mohatarem, UNMO Chief in BiH from February
1995 to January 1996, UNPROFOR personnel and UNMOs could react to sniping or shelling
incidents by sending out protest letters and by investigating the incidents.137 However, the Trial
Chamber notes the protest letters it received in evidence were all sent by UNPROFOR, not by
UNMOs.
41. UNPROFOR wrote protest letters in response to incidents of sniping or shelling of civilians
and situations of non-compliance with intervention measures of the parties about which it was
informed.138 There were two types: “regular protests” and “strong protests”, which could be either
written or oral.139 According to Maj. Gen. Nicolai, the purpose of protest letters was twofold: they
served as an official confirmation carrying “a bit more authority than a message by phone”, and
they had registration purposes.140 With the filing of these protests an administrative record was
established as to how often the parties were warned.141
42. Protest letters were most frequently sent to the SRK,142 but were also sent to the ABiH.143
According to Lt. Col. Fortin, Military Assistant to the UNPROFOR Commander of Sector Sarajevo,
UNPROFOR always sought confirmation as to whether the Bosnian Serbs had received the protest
letters. If the letter was not hand-delivered, confirmation would be sought via telephone.144
43. Some witnesses did not recall UNPROFOR ever receiving a response to a letter of
protest.145 Maj. Gen. Nicolai testified, however, that he normally received responses to protest
letters from the SRK, either in written form or by telephone, usually consisting of denial of
involvement in the actions in relation to which the protest letter had been sent.146 At other times it
was said that the actions were a response to provocation “by the other side”, either by weapons fire
or by the preparation of an offensive.147 David Harland, a Civil Affairs Officer with UNPROFOR,
137 Ghulam Muhammad Mohatarem, 19 Jan 2007, T. 698, 709.
138 Cornelis Hendrik Nicolai, 24 Jan 2007, T. 933 – 934; W-156, P625, p. 10 (under seal); David Harland, 15 Jan 2007,
T. 347 – 348, P1, MT, T. 27003; Louis Fortin, 16 Jan 2007, T. 480 – 481. Protest letters to the SRK would be sent in
Serbian and English, Cornelis Hendrik Nicolai, 24 Jan 2007, T. 944 – 945. P30 is a protest letter concerning the
treatment of captured UN soldiers, P30, Protest letter, dated 3 June 1995. P32 is an example of a protest letter written
by Gen. Gobillard to the Accused, Louis Fortin, 16 Jan 2007, T. 482 – 483; P32, Protest letter, dated 3 June 1995.
139 W-156, P625, p. 10 (under seal). The Sector had a section in charge of preparing and transmitting the protests.
140 Cornelis Hendrik Nicolai, 24 Jan 2007, T. 934.
141 Cornelis Hendrik Nicolai, 24 Jan 2007, T. 935.
142 Cornelis Hendrik Nicolai, 24 Jan 2007, T. 953. See also David Fraser, 8 Feb 2007, T. 1814; W-156, P625, p. 10
(under seal).
143 See e.g. D111, Letter by Gen. Van Baal to the Deputy Commander of the ABiH, dated 12 August 1994. The letters
to the ABiH were sent to the ABiH corps commander, Louis Fortin, 16 Jan 2007, T. 479.
144 Louis Fortin, 16 Jan 2007, T. 484.
145 Louis Fortin, 16 Jan 2007, T. 484; W-156, 27 Apr 2007, T. 5347 (closed session).
146 Cornelis Hendrik Nicolai, 24 Jan 2007, T. 950.
147 Cornelis Hendrik Nicolai, 24 Jan 2007, T. 950; David Harland, 15 Jan 2007, T. 347 – 349.
15
Case No IT-98-29/1-T 12 December 2007
and Maj. Eimers noted that, in general, the protest letters did not lead to any change in the
behaviour of the Bosnian Serbs.148
44. UNPROFOR could also respond by use of force; for example, in sniping incidents, its
troops could return fire.149 It could only respond to firing, including shelling, with small-calibre
weapons because it did not possess heavy weaponry.150 In addition, armoured personnel carriers
(“APCs”) were dispatched to dangerous parts of the city for monitoring and protection purposes.151
These vehicles also functioned as a mobile protective screen behind which people could walk in
some safety from sniping.152
45. UNPROFOR had radars at its disposal with which movements and the positions of the VRS
could be followed.153 It could threaten the use of air force.154 Although, according to United Nations
Security Council Resolution 824, air force could be used in defending safe areas, the actual use of
air force was deemed disproportionate in most cases as it involved the danger of collateral
damage.155 Attacks by air force had to be authorised under a “dual-key system”, in which NATO
and UNPROFOR agreed to initiate the attacks.156
4. Peace Initiatives
46. Evidence of various peace initiatives launched by UNPROFOR, both before and during the
Indictment period, was presented during trial.157 Many of these agreements co-existed. In its Final
Brief, the Defence argued that the “stance of the leaders of the BH Army was to fake a defence in
order to better attack and never to accept a truce or the demilitarisation of Sarajevo.”158
148 David Harland, 15 Jan 2007, T. 321, 347 – 349; Ronald Eimers, P585, pp 6, 10.
149 Ghulam Muhammad Mohatarem, 19 Jan 2007, T. 708 – 709; Cornelis Hendrik Nicolai, 24 Jan 2007, T. 954 – 956;
Louis Fortin, 16 Jan 2007, T. 487.
150 Cornelis Hendrik Nicolai, 24 Jan 2007, T. 934.
151 Louis Fortin, 16 Jan 2007, T. 487 – 489; Cornelis Hendrik Nicolai, 24 Jan 2007, T. 954 – 956; Martin Bell, 26 Apr
2007, T. 5248; Asam Butt, 14 Feb 2007, T. 2161 – 2162; W-156, 27 Apr, T. 5325 – 5326 (closed session). See also
P35, Map marked by Louis Fortin; P613, Videoclip of sniping on Zmaja od Bosne. There were also patrols in certain
areas, Cornelis Hendrik Nicolai, 24 Jan 2007, T. 954 – 956.
152 See P612, Videoclip of events in Sarajevo; P613, Videoclip of sniping on Zmaja od Bosne; Asam Butt, 14 Feb 2007,
T. 2161 – 2162.
153 Ghulam Muhammad Mohatarem, 19 Jan 2007, T. 737. For more evidence regarding these radars, see infra,
II.E.6.(b)(xv) Shelling of the Markale Market on 28 August 1995.
154 Cornelis Hendrik Nicolai, 24 Jan 2007, T. 934.
155 Cornelis Hendrik Nicolai, 24 Jan 2007, T. 955, 25 Jan 2007, T. 1042; David Fraser, 7 Feb 2007, T. 1798. See also
P44, Memorandum on meeting between Gen. Smith and Gen. Meille, dated 26 June 1995.
156 David Harland, 16 Jan 2007, T. 434 –435, 437 – 438, P2, MT, T. 28688 – 28689; Rupert Smith, 7 Mar 2007,
T. 3375, 3415 – 3416, P334, p. 22.
157 See for peace-initiatives during the pre-Indictment period, P472, Expert report Robert Donia, pp 33 - 38, mentioning
the establishment of the International Conference on the Former Yugoslavia (“ICFY”) and agreement by Radovan
Karad`i}, the Vance Plan, Vance-Owen Peace Plan, the Owen-Stoltenberg Plan, the Washington Agreement; see also
Stevan Veljovi}, 29 May 2007, T. 5740.
158 Defence Final Brief, paras 78 – 83.
16
Case No IT-98-29/1-T 12 December 2007
47. There were periods of cease-fire throughout the war.159 In its Closing Brief, the Prosecution
submitted that cease-fires were meaningless, noting that all the scheduled sniping incidents, in
which a tram was shot, took place during cease-fires.160 Evidence of both Prosecution and Defence
witnesses showed that the cease-fires did not last more than a few days and that there was no
guarantee that one would not be wounded or killed during a cease-fire.161 There is evidence that the
SRK violated cease-fires,162 as did the ABiH.163
(a) Demilitarised Zone - 14 August 1993
48. A demilitarised zone (“DMZ”), which included Sarajevo Airport and a “large part” of
Mount Igman, was established in Sarajevo on 14 August 1993.164 The area of the DMZ overlapped
with the Total Exclusion Zone (“TEZ”), discussed below.165 In its Final Brief, the Defence argued
that the DMZ in the Igman area was under de facto control of the ABiH from the time of its
creation until the end of the conflict and was, consequently, a “legitimate military objective”.166 In
this regard, the Trial Chamber notes, for example, an UNPROFOR memorandum that describes the
use of the DMZ as assembly and refuge areas for ABiH troops.167 However, the evidence indicates
violations of the DMZ by both parties.168
159 Alija Holjan, P526, p. 2; Fikreta Pa~ariz, P643, p. 9; Slavica Livnjak, P95, p. 2.
160 Prosecution Closing Brief, para. 50.
161 Zoran Samard`i}, 13 June 2007, T. 6629, 6630; Slobodan Bjelica, 24 July 2007, T. 8777; Milan Peji}, 21 June 2007,
T. 7038 – 7039; Hafiza Karai, P115, p. 1; W-118, 6 Feb 2007, T. 1637 – 1638; Alija Holjan, P526, p. 2; Fikreta
Pa~ariz, P643, p. 9; Slavica Livnjak, P95, p. 2.
162 See e.g. Sniping of Alma utuna; Sniping Dženana Sokolovi and Nermin Divovi; Sniping of Afeza Karai and
Sabina Šabani; Sniping of Azem Agovi and Alen Gievi; Sniping of Senad Kešmer, Alma Mulaosmanovi and Alija
Holjan; Sniping of [emsa ^ovrk; Shelling of Livanjska Street. Cf. Vaso Elez, 7 June 2007, T. 6327 – 6328.
163 Luka Dragi~evi}, 26 Mar 2007, T. 401; Milorad Ko{arac, 26 July 2007, T. 8870 – 8871, 8879 – 8881; Vaso Elez,
7 June 2007, T. 6326.
164 David Harland, P2, MT. 28650; W-46, 16 Mar 2007, T. 3877 – 3878 (closed session).
165 W-46, 16 Mar 2007, T. 3877 (closed session). See also Louis Fortin, 17 Jan 2007, T. 545 – 546; David Harland,
15 Jan 2007, T. 340, who testified that TEZs were sometimes “neutrally known” as DMZs.
166 Defence Final Brief, paras 36, 59 – 60. The Defence cites David Harland who stated that the DMZ came de facto
under ABiH control because the ABiH transited through the zone and established points of control beyond it. The latter
did not take place until “probably” the end of 1994. It also argued that the ABiH was “constantly violating the DMZ to
realise its strategy” of counter-attacking from outside of Sarajevo, para. 106.
167 D5, Notes on meeting between Gen. Gobilliard and Ejup Gani}, dated 2 October 1994 (“Notes on meeting, dated
2 October 1994”), p. 2; W-46, 16 Mar 2007, T. 3881 – 3882 (closed session); Stevan Veljovi}, 29 May 2007, T. 5756 –
5757, 5762; D187, Report on 1st Corps combat achievements, dated 1 November 1994. See also on another violation of
the DMZ David Fraser, 8 Feb 2007, T. 1889; W-46, 16 Mar 2007, T. 3884 – 3885 (closed session), P387, p. 19 (under
seal); T-41, 18 July 2007, T. 8530 – 8531, 8533; D132, UNPROFOR memorandum on Mount Igman incident, dated
7 October 1994, p. 2; D131, Statement of Yasushi Akashi, dated 7 October 1994; P867, UNPROFOR daily sitrep,
14 December 1994, p. 2; D336, Photograph; D337, Photograph.
168 W-46, 16 Mar 2007, T. 3877, 3879 – 3880, 3894 (closed session), P387, pp 19, 21 – 22 (under seal); David Harland,
P2, MT. 28651. See also Stevan Veljovi}, 29 May 2007, T. 5757; P7, UNPROFOR message about meeting with
Bosnian Serb leaders, dated 19 November 1994, p. 2; P8, UNPROFOR memo, dated 23 November 1994, p. 1.
17
Case No IT-98-29/1-T 12 December 2007
(b) Total Exclusion Zone (TEZ) - 9 February 1994
49. On 9 February 1994, the VRS and the ABiH agreed, inter alia, to a cease-fire, the
establishment of a TEZ in Sarajevo, the interposition of UNPROFOR between the two sides and the
placement of heavy weapons in so-called Weapons Collection Points (“WCPs”), which were
monitored by UNPROFOR.169 The TEZ encompassed the area within a 20-kilometre radius around
Sarajevo.170 Within the TEZ, all heavy weapons had to be withdrawn to the WCPs.171 In this
respect, QMS Richard Higgs, Prosecution expert on mortars, testified that mortars of a calibre of
around 85 mm are classed as medium weapons; 120 mm mortars are classed as heavy weapons.172
There were nine WCPs in and around Sarajevo; two were in ABiH-controlled territory and seven
were in SRK-held territory.173 Failure by either side to comply with this agreement could result in
NATO air strikes or the imposition of sanctions.174
50. The Defence submitted in its Final Brief that “the SRK withdrew most of its heavy weapons
from the Ni{i}i zone to the north and from the Trnovo zone to the south of its area of responsibility”
and that “the SRK generally respected the agreement, but during the offensive of the BH Army in
the spring of 1995, they took some weapons to respond to the artillery attacks carried out by the BH
Army.”175 The withdrawal of heavy weapons from the TEZ during the command of the Accused
was confirmed by two Defence witnesses.176 However, the evidence showed that neither the SRK
nor the ABiH adhered to the TEZ and that they kept heavy weaponry within the 20-kilometre zone
around Sarajevo, and outside WCPs, at times throughout the Indictment period.177
169 See e.g. Cornelis Hendrik Nicolai, 24 Jan 2007, T. 941 – 942; Rupert Smith, 7 Mar 2007, T. 3395; David Harland,
15 Jan 2007, T. 340, P1, MT. 26944, P2, MT. 28673 – 28674; Louis Fortin, 17 Jan 2007, T. 514, 545 – 546, P27, p. 4;
W-46, P387, p. 8 (under seal); D6, UNPROFOR weekly BH political assessment, dated 17 February 1994
(“UNPROFOR weekly BH political assessment, 17 February 1994”), pp 2, 6.
170 W-46, 16 Mar 2007, T. 3876 – 3877 (closed session); Vahid Karaveli}, 28 Mar 2007, T. 4229; David Harland,
15 Jan 2007, T. 340; Milorad Kati}, 4 June 2007, T. 6135 – 6136; P917, SRK map showing the TEZ.
171 Louis Fortin, 17 Jan 2007, T. 546; Cornelis Hendrik Nicolai, 24 Jan 2007, T. 941 – 942; Rupert Smith, 7 Mar 2007,
T. 3388, 3395; W-46, 15 Mar 2007, T. 3828 (closed session), P387, pp 6, 8 (under seal); Vahid Karaveli}, 28 Mar 2007,
T. 4229; W-156, 27 Apr 2007, T. 5363 (closed session); David Harland, P2, MT. 28674; Sini{a Krsman, 6 June 2007,
T. 6251 – 6252. Sini{a Krsman acknowledged in cross-examination 20-millimetre guns mounted on vehicles were also
excluded, Sini{a Krsman, 6 June 2007, T. 6274. The Trial Chamber notes that Brig. Mohatarem testified that the WCPs
were established pursuant to the COHA, Ghulam Muhammad Mohatarem, 19 Jan 2007, T. 707. See also infra,
II.A.4.(d) Comprehensive Cessation of Hostilities Agreement - 23 December 1994.
172 Richard Higgs, 23 Apr 2007, T. 4999; P588, Report by Richard Higgs, dated 3 August 2006 (“Expert report Richard
Higgs”), p. 2.
173 Ghulam Muhammad Mohatarem, 19 Jan 2007, T. 707; W-46, 15 Mar 2007, T. 3828 (closed session); P869,
UNPROFOR daily sitrep, dated 10 December 1994.
174 Rupert Smith, 7 Mar 2007, T. 3395; W-46, 15 Mar 2007, T. 3879 (closed session). The Trial Chamber notes,
however, that the warring factions did have access to their heavy weaponry and permission to conduct maintenance
under the supervision of “UN personnel”, Cornelis Hendrik Nicolai, 24 Jan 2007, T. 941 – 942; D6, UNPROFOR
weekly BH political assessment, 17 February 1994, pp 2 - 3.
175 Defence Final Brief, para. 72.
176 Stjepan \uki}, 3 July 2007, T. 7506; Rade Ivanovi}, 4 July 2007, T. 7642.
177 As to the SRK, see David Harland, 15 Jan 2007, T. 340, P1, MT. 26945 – 26946; Ghulam Muhammad Mohatarem,
19 Jan 2007, T. 707 – 708; Rupert Smith, 7 Mar 2007, T. 3387; Ronald Eimers, P585, p. 7; D213, Report by SRK
18
Case No IT-98-29/1-T 12 December 2007
51. Shortly after the cease-fire came into force, UNPROFOR reported that the agreement was
“working well”, being interrupted by only minor violations.178 However, the Defence argued that by
August 1994, the February 1994 cease-fire was “already a dead letter.”179 David Harland confirmed
that the ABiH often violated the cease-fire during the period of 10 February 1994 to 24 April
1994.180 He commented that ABiH fire drew return fire of the SRK onto the city.181 An order, dated
1 January 1995, from Gen. Rasim Deli}, Commander of the ABiH, shows that the ABiH also
violated agreed terms relating to WCPs.182
52. Evidence was presented that the SRK violated the WCP arrangements both before and
during the Indictment period.183 On 21 August 1994, the Accused ordered the camouflage of heavy
weapons in the TEZ.184 The Accused “strictly” prohibited “unauthorised appropriation and use of
heavy weapons kept at the collection points under UNPROFOR control. If the need arises to
appropriate and use these weapons, the Command of the Sarajevo Corps Command will seek
approval from the Main Staff of the Army of Republika Srpska.”185 Evidence shows that the SRK
weapons in the WCPs could be, and “very often” were, used from those positions “to fire onto the
city.”186
(c) Anti-sniping Agreement - 14 August 1994
53. UNPROFOR initiated negotiations on an anti-sniping agreement in response to civilian
casualties on both sides that were caused by sniping.187 Negotiations were carried out from the end
Commander, dated 19 September 1994, p. 1; D4, Memo on meetings in Pale and Sarajevo, dated 20 September 1994,
p. 3; P760, UNPROFOR sitrep, dated 10 December 1994, p. 2; P339, Notes of meeting between Gen. Smith and
Radovan Karad`i}, dated 5 April 1995. Cf. Sini{a Krsman, 6 June 2007, T. 6274 – 6275, 6277.
As to the ABiH, see David Harland, 15 Jan 2007, T. 390; W-46, 16 Mar 2007, T. 3881 – 3882 (closed session); Luka
Dragi~evi}, 26 Mar 2007, T. 4010; D3, UNPROFOR memo on ABiH attack on 18 September 1994, dated
19 September 1994; D4, Memo on meetings in Pale and Sarajevo, dated 20 September 1994, p. 2; D5, Notes on
meeting, 2 October 1994, p. 2; D53, ABiH Order on procedure towards UNPROFOR, dated 30 September 1994
(“ABiH order, 30 September 1994”), p. 1; D150, Order by Vahid Karaveli}, dated 12 November 1994, p. 1.
178 D6, UNPROFOR weekly BH political assessment, 17 February 1994, p. 3.
179 Defence Final Brief, para. 73.
180 David Harland, P2, MT. 28675. See also Vahid Karaveli}, 28 Mar 2007, T. 4229 – 4230.
181 David Harland, P2, MT. 28675.
182 D303, Order by Rasim Deli} on the implementation of COHA, dated 1 January 1995, pp 2, 4.
183 See e.g. Rupert Smith, 7 Mar 2007, T. 3316 – 3317; Cornelis Hendrik Nicolai, 24 Jan 2007, T. 941 – 942; Ronald
Eimers, P585, p. 7; P844, UNMO daily sitrep, dated 4 June 1995, p. 12; P877, UNMO daily sitrep, dated 28 February
1995, p. 10; P918, List of technical and material equipment, dated 21 February 1995. Cf. Milan Mandi}, 4 July 2007,
T. 7585 – 7586 7600 – 7601.
184 P667, Order by the SRK Commander to Camouflage Weapons, 21 August 1994, p. 2. See also P802, Proposal by
SRK Deputy Commander, 10 February 1994, pp 1 - 2.
185 P667, Order by the SRK Commander to Camouflage Weapons, 21 August 1994, p. 2.
186 W-46, 15 Mar 2007, T. 3828 (closed session), P387, p. 23 (under seal); Rupert Smith, P334, p. 13; Louis Fortin,
P27, p. 10; P102, Protest letter, dated 26 April 1995.
187 David Fraser, 8 Feb 2007, T. 1820, 1872 – 1873; David Harland, 15 Jan 2007, T. 334 – 336. See also T-52, 28 June
2007, T. 7468 – 7469; P13, Report on anti-sniping project, dated 24 April 1995.
19
Case No IT-98-29/1-T 12 December 2007
of July 1994 until 14 August 1994.188 On 14 August 1994, the “Agreement on Elimination of
Sniping Activities in Sarajevo Region” (“Anti-sniping Agreement”) was signed by Maj. Gen. Vahid
Karaveli} and the Accused.189 In its Closing Brief, the Prosecution cite “negotiating, signing and
implementing an anti-sniping agreement”, as well as “local cease-fire agreements”, as an indication
of the Accused’s effective control.190
54. The Anti-sniping Agreement was followed up by meetings about implementation measures,
some implementation agreements and a codicil to the Anti-sniping Agreement, which were intended
to increase the effectiveness of the Agreement.191 An UNPROFOR memorandum dated 18 August
1994 noted that, “the authorities of the two warring parties have declared they gave orders to their
own forces to stop sniping activities ….”192
55. In the month following the coming into force of the Anti-sniping Agreement, UNPROFOR
reported that it “had many positive results … but that this result is not totally satisfactory.”193
David Harland testified that sniping stopped as a result of the Anti-sniping Agreement for a period
of at least six weeks after it was signed, and that the reduction in sniping continued over several
months.194 However, several UNPROFOR reports document violations of the Anti-sniping
Agreement by both sides.195
56. Col. Dragi~evi}, while denying that the SRK violated the Anti-sniping Agreement, testified
that there were civilian casualties on both sides as a result of sniper fire.196 According to Brig. Gen.
David Fraser, Military Assistant to the Commander of UNPROFOR Sector Sarajevo from April
188 David Harland, 15 Jan 2007, T. 334 – 335. They were attended by Mustafa Hajrulahovi}, and Gen. Karaveli} and
Hasan Muratovi} on the “Bosnian side”, and Dragomir Milo{evi}, “who was relatively new at that stage”, Professor
Koljevi} and Gen. Tolimir on the “Serb side”. Others “came and went.” UNPROFOR wanted large-scale, continous
plastic screens erected in areas of ABiH and SRK territory to prevent sniping, see P13, Report on anti-sniping project,
24 April 1995. Ultimately, this was not agreed upon by the parties, David Harland, 15 Jan 2007, T. 337, 393.
189 P206, Anti-sniping Agreement, dated 14 August 1994; David Harland, P2, MT. 28683.
190 Prosecution Closing Brief, para. 469.
191 David Harland, 15 Jan 2007, T. 338; P666, Memorandum to SRK command, dated 15 August 1994, p. 2; P4, Memo
on implementation of Anti-sniping Agreement, 18 August 1994; P5, Codicil to the Anti-sniping Agreement, 1 October
1994.
192 P4, Memo on implementation of Anti-sniping Agreement, 18 August 1994, p. 1; David Harland disagreed with the
proposition that the ABiH did not honour the commitment to publicly promote the Anti-sniping Agreement, while the
SRK did, David Harland, 15 Jan 2007, T. 394 – 395.
193 P207, UNPROFOR proposal of assessment of Anti-sniping Agreement, dated 15 September 1994, p. 3.
194 David Harland, 15 Jan 2007, T. 337, 16 Jan 2007, T. 408, P1, MT. 26952; W-46, P387, p. 14 (under seal); P207,
UNPROFOR proposal of assessment of Anti-sniping Agreement, 15 September 1994.
195 P6, UNPROFOR cable on violations of Anti-sniping Agreement, dated 12 September 1994 (“UNPROFOR cable, 12
September 1994”); P24, UNPROFOR report on meetings with Bosnian Government officials, dated 12 March 1995
(“UNPROFOR report, 12 March 1995”); P204, Protest letter, 9 October 1994; P793, UNPROFOR report on violations
of Anti-sniping Agreement, dated 8 September 1994. See also W-156, P625, pp 19, 27 (under seal); D64, Order by
Fikret Prevljak, dated 19 September 1995.
196 Luka Dragi~evi}, 26 Mar 2007, T. 4031 – 4032. See also T-52, 28 June 2007, T. 7469 – 7470.
20
Case No IT-98-29/1-T 12 December 2007
1994 to May 1995, sniping posed “a significant problem” before the Anti-sniping Agreement, and
after it, sniping continued to be a problem.197
(d) Comprehensive Cessation of Hostilities Agreement - 23 December 1994
57. A comprehensive Cessation of Hostilities Agreement (“COHA”) was signed on
23 December 1994.198 There is evidence that the SRK command ordered its troops to comply with
the COHA.199 Col. Dragi~evi} testified that the SRK abided by the terms of the COHA.200
58. On 28 December 1994, UNPROFOR reported that “the cease-fire agreement seems to be
holding, generally, with incidents of fire reduced by over 90% from pre-24 December levels”, but
that “Sarajevo remains tense, with concern that BiH activity will provoke a BSA reaction.”201 David
Harland testified that the cessation of hostilities lasted approximately four months.202 However,
Milan Mandilovi}, Chief of the Ear, Nose and Throat Surgery Department of the State Hospital in
1994 and 1995, rejected this, stating that, “it was completely impossible to have such a long period
of peace in the besieged town of Sarajevo.”203
59. In this respect, there is evidence that the SRK violated the COHA. Gen. Smith testified that
the Bosnian Serbs initiated the breakdown of the COHA.204 Towards March 1995, there was an
“alarming upsurge in military activity.”205 In March 1995, Gen. Smith concluded that both the
ABiH and the VRS had decided that the COHA was finished.206
60. There is also evidence of violations of the COHA by the ABiH.207 On 1 January 1995, in
respect of the COHA, Gen. Deli} ordered: “Should the agreement be observed, the time should be
197 David Fraser, 8 Feb 2007, T. 1822 – 1823. See also P11, Report on implementation of COHA, dated 29 March 1995,
p. 2.
198 Ronald Eimers, P584, p. 4. Parties to the Agreement were Alija Izetbegovi}, Rasim Deli}, Radovan Karad`i}, Ratko
Mladi}, and Kre{imir Zubak and Vladimir [olji} and witnessed by Yasushi Akashi and Michael Rose. See also Goran
Kova~evi}, 13 June 2007, T. 6562; Stevan Veljovi}, 29 May 2007, T. 5763.
199 D214, Order on ceasefire, dated 25 December 1994; D137, SRK Command Instructions, dated 26 December 1994.
See also Sini{a Krsman, 6 June 2007, T. 6255; Goran Kova~evi}, 12 June 2007, T. 6554.
200 Luka Dragi~evi}, 26 Mar 2007, T. 4018.
201 P836, UNPROFOR daily sitrep, dated 28 December 1994, pp 1, 2.
202 David Harland, 16 Jan 2007, T. 407 – 408. See also Vlajko Bozi}, 17 July 2007, T. 8430 – 8432; Martin Bell,
26 Apr 2007, T. 5235 – 5236, 5243 – 5244, 5246, 5251; T-53, 11 June 2007, T. 6399; Dražen Maunaga, 12 June 2007,
T. 6497.
203 Milan Mandilovi}, 18 Jan 2007, T. 620. He continued “you would have maybe a couple of days of cease-fire and
then the hostilities would escalate and the international community would intervene; then there would be more
escalation, ibid.
204 Rupert Smith, 7 Mar 2007, T. 3310.
205 Ronald Eimers, 20 Apr 2007, T. 4809, 4813, P584, p. 4; P11, Report on implementation of COHA, 29 March 1995.
See also Rupert Smith, 7 Mar 2007, T. 3310.
206 Rupert Smith, P334, pp 8, 10. See also Ronald Eimers, 20 Apr 2007, T. 4809, 4813. P339, Notes of meeting between
Gen. Smith and Radovan Karad`i}, 5 April 1995; P25, UNPROFOR cable on meetings with Bosnian Government
officials, dated 14 March 1995 (“UNPROFOR cable, 14 March 1995”), p. 3.
207 See UNMO sitreps referring to ceasefire violations by the ABiH: P850, UNMO daily sitrep, dated 9 July 1995, pp 2,
11 - 12; P841, UNMO daily sitrep, dated 19 August 1995, p. 12.
21
Case No IT-98-29/1-T 12 December 2007
used for the training of soldiers, units and commands … and preparations for ensuing combat
activities.”208 In response to questions by the Defence, Maj. Gen. Nicolai testified that he was not
aware of the ABiH preparing for an offensive during the period the cease-fire was in force.209
According to David Harland, UNPROFOR protested heavily against violations of cease-fires by the
ABiH and threatened to use air strikes.210 However, the ABiH was not sanctioned for breaches of
the COHA by the use of NATO air force.211
(e) Collapse of TEZ Arrangements and NATO Attacks
61. Gen. Smith and Lt. Col. Fortin testified that the TEZ arrangements collapsed in May
1995.212 An UNPROFOR report, dated 19 May 1995, states that, “as widely predicated, the heavy
weapons Total Exclusion Zone around Sarajevo has largely collapsed. Following the decision of
UNPROFOR headquarters not to call on NATO air power to enforce the zone, both sides have
begun using their heavy weapons with vigour. More than 1,500 detonations were recorded around
the city on Tuesday; and more than 1,200 on Wednesday. The daily average until two weeks ago
was less than 20.”213
62. On 24 May 1995, the SRK removed weapons from WCPs, following an increase in the
fighting, and refused to return them.214 Gen. Smith issued an ultimatum to re-establish the TEZ but
this was ignored, resulting in NATO air strikes on bunkers in an ammunitions depot outside Pale on
25 May 1995.215 During the night of 25 May 1995, the shelling of safe areas in BiH, including
Sarajevo, by the VRS, continued.216 On 25 and 26 May 1995, the SRK again took a number of
heavy weapons from WCPs.217 NATO again targeted the ammunitions depot outside Pale on the 26
208 D303, Order by Rasim Deli} on implementation of COHA, 1 January 1995, p. 4. See also Stevan Veljovi}, 29 May
2007, T. 5766, 5771 – 5772; T-53, 11 June 2007, T. 6402; Dražen Maunaga, 12 June 2007, T. 6504 – 6505; Ljuban
Mrkovi}, 12 July 2007, T. 8148 – 8149.
209 Cornelis Hendrik Nicolai, 24 Jan 2007, T. 976 – 977.
210 David Harland, P2, MT. 28651 – 28652. See also e.g. P391, UNPROFOR report on ABiH and SRK shelling and
sniping, dated 17 November 1994 (“UNPROFOR report, 17 November 1994”).
211 Luka Dragi~evi}, 26 Mar 2007, T. 4021; Louis Fortin, 17 Jan 2007, T. 544; Harry Konings, 13 Mar 2007, T. 3654.
212 Louis Fortin, 17 Jan 2007, T. 546; Rupert Smith, 7 Mar 2007, T. 3316 – 3317, P334, pp 12, 13. See also David
Harland, P1, MT. 26945 – 26946.
213 D12, UNPROFOR weekly sitrep, dated 19 May 1995 (“UNPROFOR weekly sitrep, 19 May 1995”), p. 2. On these
NATO air strikes, see Rupert Smith, 7 Mar 2007, T. 3352 – 3354, P334, p. 12; D451, UNPROFOR daily info summary,
dated 8 May 1995, pp 1 - 2.
214 Rupert Smith, P334, p. 13; David Harland, P1, MT. 26957.
215 Rupert Smith, 7 Mar 2007, T. 3394 – 3396, P334, p. 13; Cornelis Hendrik Nicolai, 24 Jan 2007, T. 942 – 943,
25 Jan 2007, T. 1041; Luka Dragi~evi}, 26 Mar 2007, T. 4021 – 4022, 4052 –4054; T-7, 19 June 2007, T. 6852; W-46,
P387, p. 30 (under seal); Louis Fortin, 17 Jan 2007, T. 543, P27, pp 7, 10; P340, Outgoing code cable, dated 26 May
1995, p. 1.
216 Cornelis Hendrik Nicolai, 24 Jan 2007, T. 943; Rupert Smith, 7 Mar 2007, T. 3395 – 3397, P334, pp 13 – 14; P340,
Outgoing code cable, 26 May 1995, p. 1; W-46, P387, p. 30 (under seal); Louis Fortin, P27, p. 11.
217 Luka Dragi~evi}, 26 Mar 2007, T. 4021 – 4022.
22
Case No IT-98-29/1-T 12 December 2007
May 1995.218 Col. Dragi~evi} testified that the SRK removed the weapons from the WCPs because
of the threat to the SRK by the ABiH.219
63. On 18 June 1995, UNPROFOR withdrew from all WCPs around Sarajevo because
UNPROFOR units could no longer be deployed safely in isolated parts of SRK-held territory.220
After the shelling of the Markale Market on 28 August 1995, new NATO air attacks were
ordered.221 During the night of 29 August 1995, air attacks against Bosnian Serb positions began.222
These attacks lasted until 1 September 1995.223 They were stopped until 4 September 1995 to allow
meetings between UNPROFOR Commander, Gen. Janvier, and Gen. Mladi} regarding, inter alia,
the withdrawal of all heavy weapons from the TEZs.224 The NATO attacks, targeting the wider area
of Sarajevo, resumed on 5 September 1995 and lasted until 14 September 1995.225 In these attacks,
NATO was supported by a major bombardment of Bosnian Serb positions around Sarajevo by the
UNPROFOR Rapid Reaction Force.226 In response to Defence questions, Gen. Smith and David
Harland testified that the targets were chosen “quite precisely” and that they were all of military
character.227 According to Milorad Kati}, two barracks at Lukavica were hit by NATO attacks, but
no targets in Grbavica were.228 On 13 September 1995, a 72-hour pause was agreed and extended
until 20 September 1995.229
64. On 15 September 1995, representatives of the VRS, including the Accused, and
UNPROFOR representatives agreed a cease-fire and withdrawal of VRS troops from the area
surrounding Sarajevo.230 On the same day, the Accused ordered the “pull-out of 50 per cent of
218 Cornelis Hendrik Nicolai, 25 Jan 2007, T. 1041; Rupert Smith, 7 Mar 2007, T. 3394 – 3397, P334, p. 14; T-7,
19 June 2007, T. 6852; Louis Fortin, P27, p. 10; P340, Outgoing code cable, 26 May 1995, pp 1 - 2.
219 Luka Dragi~evi}, 26 Mar 2007, T. 4021, 4052, 27 Mar 2007, T. 4075 – 4076. See also Milorad Kati}, 1 June 2007,
T. 6050. The Trial Chamber notes that it also heard evidence of a Defence witness who recalled having artillery support
during the ABiH summer 1995 offensive at Golo Brdo, Milorad Ko{arac, 26 July 2007, T. 8879, 8902 – 8903, 8904.
220 W-156, 27 Apr 2007, T. 5352 (closed session); P16, UNPROFOR sitrep, dated 24 June 1995.
221 David Harland, 16 Jan 2007, T. 434 –435, 437 – 438, P2, MT. 28688 – 28689; Rupert Smith, 7 Mar 2007, T. 3375,
3415 – 3416, P334, p. 22; See also confirming 29 August 1995 as the date of the decision, Cornelis Hendrik Nicolai,
25 Jan 2007, T. 1021 – 1022. See infra, II.E.6(b)(xv) Shelling of the Markale Market on 28 August 1995.
222 David Harland, 16 Jan 2007, T. 437, P2, MT. 28687. According to witness Milorad Kati}, the bombing started the
31 August 1995, Milorad Kati}, 1 June 2007, T. 6050. See also Harry Konings, 13 Mar 2007, T. 3654.
223 David Harland, 16 Jan 2007, T. 438; Rupert Smith, P334, p. 23.
224 Rupert Smith, 7 Mar 2007, T. 3412 – 3413, P334, p. 23.
225 Rupert Smith, P334, p. 23.
226 David Harland, 16 Jan 2007, T. 438.
227 David Harland, 16 Jan 2007, T. 439; Rupert Smith, 7 Mar 2007, T. 3415 – 3416.
228 Milorad Kati}, 1 June 2007, T. 6050, 6052 – 6053.
229 Rupert Smith, P334, p. 23.
230 Rupert Smith, P334, p. 23; Ghulam Muhammad Mohatarem, 19 Jan 2007, T. 736; W-156, 27 Apr 2007, T. 5364 –
5366 (closed session), P625, pp 6 - 7 (under seal).
23
Case No IT-98-29/1-T 12 December 2007
heavy weapons from the Sarajevo exclusion zone ....”231 In the following days, most of the heavy
weapons were withdrawn from Sarajevo.232
65. On 5 October 1995, a 60-day cease-fire was agreed upon; this was to come into force on
10 October 1995, on the condition that the utilities in Sarajevo were reconnected.233 On 11 October
1995, the parties agreed to the cease-fire as of 12 October 1995.234 The fighting subsided by
14 October 1995.235
B. Military Structures and Confrontation Lines
66. The Trial Chamber received extensive evidence about the military units deployed in and
around Sarajevo, namely the SRK and the 1st Corps of the ABiH. Witnesses gave evidence about
the establishment and command structure of the different military units as well as the weaponry and
equipment available. In addition, numerous documents relating to the military units were admitted
into evidence.
1. Structure of Military Units
(a) VRS and SRK
67. On 12 May 1992, the Bosnian Serb Assembly voted to establish the VRS and designated
Gen. Mladi as its commander.236 The VRS was formed from parts of the JNA, and TO and
volunteer units.237 As President of the Republic, Radovan Karadži was the Supreme Commander
of the VRS.238 Gen. Mladi} commanded the VRS from the centre and did not delegate much.239
According to Gen. Smith, he was always familiar with events that were occurring in Sarajevo.240
68. Each of the JNA corps in BiH was renamed while retaining most of its personnel and
weaponry.241 The Sarajevo-based 4th Corps of the JNA became the SRK,242 which had its
231 P736, Order by the SRK Commander on pull-out of weapons from exclusion zone, dated 15 September 1995.
232 W-156, 27 Apr 2007, T. 5365 (closed session), P625, pp 7, 8 (under seal); Rupert Smith, P334, p. 23; Ghulam
Muhammad Mohatarem, 19 Jan 2007, T. 736.
233 Rupert Smith, P334, p. 24.
234 Rupert Smith, P334, p. 24; David Harland, P1, MT T. 26983.
235 Rupert Smith, P334, p. 24.
236 Agreed Fact 20; Adjudicated Fact 44; Stevan Veljovi, 29 May 2007, T. 5730; P472, Expert report Robert Donia,
p. 24.
237 Ljuban Mrkovi 12 July 2007, T. 8136; Vahid Karaveli, P492, p. 17. See also Rupert Smith, 7 Mar 2007, T. 3360 –
3361; Luka Dragievi, 26 Mar 2007, T. 4005; Milosav Gagovi, 23 July 2007, T. 8706 – 8707; P770, Order by
Tomislav [ipi, dated 22 May 1992.
238 Agreed Fact 9; Rupert Smith, 7 Mar 2007, T. 3366 – 3367; P336, VRS directive, dated 17 March 1995. See also
Rupert Smith, 7 Mar 2007, T. 3304, 3306 – 3307, P334, p. 4.
239 Gen. Mladi respected the chain of command in the VRS and “his influence could be felt at a very low level”,
Rupert Smith, 7 Mar 2007, T. 3298 – 3299, 3301, 3373.
240 Rupert Smith, 7 Mar 2007, T. 3299, 3300.
241 P472, Expert report Robert Donia, p. 24. See also Desimir Gagovi, 23 Aug 2007, T. 9157 – 9158.
24
Case No IT-98-29/1-T 12 December 2007
headquarters in the Lukavica Barracks.243 Apart from the SRK, the VRS was comprised of five
other corps.244 Nearly all soldiers of the VRS were Serbs, most of whom had been living in BiH.245
There is evidence that many officers of the VRS were officers of the former JNA.246 However,
some Defence witnesses testified that their particular SRK units had only a few former JNA officers
or none at all.247 The VRS was supported by the government in Belgrade with logistics, money and
matériel.248
69. During his tenure as Corps Commander, the Accused was in charge of approximately
18,000 troops.249 The SRK brigades varied in size according to the communities from which they
were established.250 The troops were mostly reservists who had been recruited locally.251 Police
units sometimes assisted SRK units at the confrontation lines.252 The SRK had professional mortar
crews.253 Maj. Eimers stated that both sides could handle mortars very well and could hit what they
were targeting if they had the grid references.254 The SRK also had snipers.255 However, several
Defence witnesses testified that their particular military units did not have any snipers.256
242 Agreed Fact 14; P472, Expert report Robert Donia, p. 24; Milosav Gagovi, 23 July 2007, T. 8703 – 8704. See also
Radomir Visnji, 25 June 2007, T. 7233.
243 David Fraser, 8 Feb 2007, T. 1805, 1807, 1832 – 1833; Stevan Veljovi, 29 May 2007, T. 5770; T-53, 11 June 2007,
T. 6425 – 6426; W-156, P625, p. 8 (under seal); John Jordan, P267, p. 9; D207, Map marked by Dragan Simi.
244 See e.g. P335, Order on combat readiness, dated 23 January 1995; P337, VRS directive, dated 31 March 1995.
245 Luka Dragievi, 26 Mar 2007, T. 4007 – 4008; Rupert Smith, 7 Mar 2007, T. 3360 – 3361; Vaso Elez, 7 June
2007, T. 6322 – 6323.
246 W-156, P625, p. 36 (under seal). See also Rupert Smith, 7 Mar 2007, T. 3359.
247 Ljuban Mrkovi, 12 July 2007, T. 8135 – 8136, 13 July 2007, T. 8203 – 8205, 8208 – 8210; Vlajko Bo`i, 17 July
2007, T. 8403; Milosav Gagovi, 23 July 2007, T. 8693 – 8694. See also Borislav Kovaevi, 9 July 2007, T. 7888.
248 David Harland, P1, MT. 26968 – 26969, 27008 – 27009; P817, Report to SRK command, dated 30 June 1994; P819,
Excerpt from Bosnian Serb Assembly 50th session on 15 and 16 April 1995.
249 Agreed Fact 11; Stevan Veljovi, 24 May 2007, T. 5718, 5719; Ljuban Mrkovi, 13 July 2007, T. 8200 – 8201.
250 Borislav Kovaevi, 10 July 2007, T. 7930, 7960. Ilijaš Brigade had 1,500-1,700 “combatants”.
251 W-156, 27 Apr 2007, T. 5367 (closed session), P625, p. 24 (under seal). See also Sini{a Krsman, 6 June 2007,
T. 6236; T-53, 7 June 2007, T. 6386; Zoran Trapara, 26 June 2007, T. 7326; Stjepan Ðuki, 28 June 2007, T. 7498;
Miroslav Peji, 16 July 2007, T. 8365. The Trial Chamber heard evidence of “weekend warriors” or irregular units
being present in and around Sarajevo, mostly in the early stages of the conflict, Martin Bell, 27 Apr 2007, T. 5288 –
5289; Vahid Karaveli, P492, p. 17; David Harland, P1, MT. 26952 – 26953. See also Milosav Gagovi, 23 July 2007,
T. 8708 – 8711; Cornelis Hendrik Nicolai, 24 Jan 2007, T. 1002 – 1003, 25 Jan 2007, 1044; John Jordan, 22 Feb 2007,
T. 2695 – 2696, P267, p. 10; Ismet Hadži, 6 Mar 2007, T. 3230 – 3232; P913, Intercepted conversation, dated 13 May
1992. Cf. Ghulam Muhammad Mohatarem, 19 Jan 2007, T. 708; Ronald Eimers, 20 Apr 2007, T. 4791 – 4792, P585,
p. 8. The Trial Chamber notes that the Defence made no specific submissions as to rogue elements operating from
territory held by the SRK.
252 Rade Ivanovi, 4 July 2007, T. 7632, 7643, 7647, 6 July 2007, T. 7808 – 7813; Vlastimir Glava{, 24 July 2007,
T. 8729, 8731 – 8732; T-15, 13 July 2007, T. 8299, 8315 – 8316. Cf. Simo Tu{evljak, 11 July 2007, T. 8044.
253 Cornelis Hendrik Nicolai, 24 Jan 2007, T. 961 – 962; John Jordan, 21 Feb 2007, T. 2642 – 2643, P267, p. 7; W-12,
2 Mar 2007, T. 3058; Ronald Eimers, 20 April 2007, T. 4785 – 4786.
254 Ronald Eimers, P585, p. 5. See also John Jordan, 21 Feb 2007, T. 2642 – 2643, P267, p. 7.
255 David Harland, 16 Jan 2007, T. 459; Vahid Karaveli, 27 Mar 2007, T. 4100 – 4101; Martin Bell, 27 Apr 2007,
T. 5288; Stevan Veljovi, 30 May 2007, T. 5835; Ljuban Mrkovi, 13 July 2007, T. 8211; P680, Order for Training,
dated 5 January 1995; P684, Order on assigning and dispatching sniper instructors, dated 19 January 1995; P688, Order
by the SRK Commander to train SRK units, dated 29 January 1995; P763, Request for equipment and snipers, dated
25 June 1992.
256 Sini{a Krsman 6 June 2007, T. 6288 – 6289, 6291, 6293; Milan Mandi, 4 July 2007, T. 7594, 7595; Borislav
Kovaevi, 10 July 2007, T. 7935; Momilo Gojkovi, 13 July 2007, T. 8269, 8275; Vlajko Bo`i, 17 July 2007,
T. 8404 – 8405, 8445 – 8447.
25
Case No IT-98-29/1-T 12 December 2007
(b) ABiH and 1st Corps
70. The ABiH was formed in 1992 from TO units, parts of the Patriotic League and other
military and paramilitary units.257 The ABiH was primarily Bosnian Muslim.258
71. President Alija Izetbegovi} was Supreme Commander of the ABiH.259 Gen. Deli} was the
Commander of the General Staff of the ABiH.260 The ABiH had eight corps.261 A report by the
Chief of Administration of the ABiH on manning levels stated that the ABiH had a total number of
227,256 troops on 1 August 1994.262
72. According to David Harland, Gen. Deli only had limited control of forces in Sarajevo at the
beginning of the war but, as time went on, command and control in the ABiH improved, although it
never reached the high level maintained in the VRS.263 Maj. Gen. Karaveli also testified that up
until some time in 1994, the ABiH General Staff did not have proper command and control over its
corps.264 ABiH troops and officers were poorly educated and trained, in comparison to the SRK.265
The weaponry was scarce and not well-maintained and this sometimes led to soldiers accidentally
wounding themselves.266
73. Maj. Gen. Karaveli was the Commander of the 1st Corps of the ABiH from summer 1993
until September 1995.267 The Commander of the 1st Corps was directly subordinate to the
Commander of the General Staff of the ABiH.268 According to Maj. Gen. Karaveli, the 1st Corps
was organised along JNA doctrinal lines.269
257 Stevan Veljovi, 24 May 2007, T. 5714; Milosav Gagovi, 23 July 2007, T. 8672; Vahid Karaveli}, P492, p. 5.
258 T-52, 28 June 2007, T. 7477 – 7478; D106, Report on manning levels in the ABiH, dated 24 August 1994, p. 1.
259 Vahid Karaveli}, 28 Mar 2007, T. 4159; T-7, 19 June 2007, T. 6844.
260 Stevan Veljovi, 29 May 2007, T. 5760; Rupert Smith, P334, p. 3.
261 D106, Report on manning levels in the ABiH, 24 August 1994, p. 1. The Trial Chamber notes that a VRS directive
dated 17 March 1995 stated that the ABiH was organised in six corps, 112 brigades, and 45 independent battalions,
artillery battalions, numbering approximately 270,000 men, P336, VRS Directive, dated 17 March 1995, p. 4.
262 D106, Report on manning levels in the ABiH, 24 August 1994, p. 1.
263 David Harland, 15 Jan 2007, T. 374.
264 Vahid Karaveli, P495, GT. 18097. In the words of Vahid Karaveli}, the General Staff was more or less “excluded
from plans for combat activities” and the corps themselves were mostly engaged in the planning of combat activities,
ibid. See also D157, Letter by Rasim Deli, dated 19 September 1994.
265 Vahid Karaveli}, P495, GT. 17654; Rupert Smith, 7 Mar 2007, T. 3360. See also Ronald Eimers, 20 Apr 2007,
T. 4788 – 4789, P585, p. 8; Stevan Veljovi, 29 May 2007, T. 5767 – 5768, 30 May 2007, T. 5824, 5837.
266 Ljuban Mrkovi, 12 July 2007, T. 8156 – 8158; Maj. Gen. Karaveli estimated that, by the first half of 1993, less
than one third of the man-power of the ABiH had weapons, Vahid Karaveli, P492, p. 7, P495, GT. 18154.
267 Vahid Karaveli, P492, p. 4.
268 Vahid Karaveli, P495, GT. 17982. See also Ismet Hadži, 6 Mar 2007, T. 3222 – 3223.
269 Vahid Karaveli, P495, GT. 18084 – 18086, 18088 – 18090.
26
Case No IT-98-29/1-T 12 December 2007
74. The headquarters of the 1st Corps was in the centre of Sarajevo, in Daniela Ozme Street,
number 7.270 It was surrounded by civilian buildings so that “it would be very difficult … to
engage.”271 In fact, the building was never hit.272
75. The 1st Corps was created from TO units and parts of the Patriotic League on 1 September
1992.273 It had some 75,000 troops during the conflict, of which approximately 40,000 to 45,000
were stationed in Sarajevo.274
76. From the end of 1994, the 1st Corps consisted of the 12th, 14th, and the 16th Divisions. The
12th Division was in Sarajevo and had between 30,000 and 40,000 soldiers.275 Gen. Fikret Prevljak
was the Commander of the 12th Division.276
77. According to Maj. Gen. Karaveli, the 1st Corps had its own sharpshooters, but no separate
sniper unit. Sometimes, depending on the combat situation, sniper groups were created.277
Witnesses testified that the 1st Corps of the ABiH, like the SRK, had good command and control
over their snipers.278
2. Weaponry
(a) Weaponry Available to the VRS and ABiH
78. Col. Dragievi testified that from the beginning of the war, the ABiH and the SRK had
essentially the same type of weaponry, “depending on the depots that were under their control”.279
79. The JNA had a “whole array of truly powerful weapons” and the VRS took over the
majority of those weapons.280 It also took over weapons from the reserve forces of the police.281
270 Ghulam Muhammad Mohatarem, 19 Jan 2007, T. 741; David Fraser, 8 Feb 2007, T. 1832. Vahid Karaveli stated
that, “for the greater part of the war,” the command headquarters was in the city of Sarajevo, Vahid Karaveli, 27 Mar
2007, T. 4086 – 4087, P492, pp 5, 7. W-57 testified that the ABiH command headquarters was a forward command post
in the Igman area outside the city and that an administrative part was in Sokolovi Kolonija, W-57, 17 Apr 2007,
T. 4571; D165, Map marked by W-57.
271 David Fraser, 8 Feb 2007, T. 1832. See also David Fraser, 8 Feb 2007, T. 1835.
272 Ghulam Muhammad Mohatarem, 19 Jan 2007, T. 741; David Fraser, 8 Feb 2007, T. 1832.
273 Vahid Karaveli, P492, p. 5, P494, GT. 11904 – 11905, P495, GT. 17625.
274 Adjudicated Fact 53; Stevan Veljovi, 24 May 2007, T. 5719; Vahid Karaveli, P492, p. 7, P493, p. 5, P494,
GT. 11787, P495, GT. 17629. See also Ljuban Mrkovi, 13 July 2007, T. 8201; D106, Report on manning levels in the
ABiH, 24 August 1994, p. 1.
275 Ismet Hadži, 6 Mar 2007, T. 3272 – 3273; Vahid Karaveli, 27 Mar 2007, T. 4148, P492, p. 5, P495, GT. 18122,
18134, 18135.
276 Ismet Hadži, 6 Mar 2007, T. 3223. See also David Fraser, 8 Feb 2007, T. 1831 – 1832.
277 Vahid Karaveli, P493, p. 8, P494, GT. 11949 – 11953. See also Ismet Hadži, 6 Mar 2007, T. 3228 – 3232, 3284;
John Jordan, P267, p. 8; W-156, P625, p. 34 (under seal); D251, Order from Safet Zajko on more effective engagement
of snipers, dated 5 March 1993 (“Order, 5 March 1993”).
278 David Harland, 16 Jan 2007, T. 459.
279 Luka Dragievi, 26 Mar 2007, T. 4045, 4050 – 4051. See also Branislav Duki, 18 Jun 2007, T. 6788.
280 D`emaludin Luinovi}, 1 Mar 2007, T. 2966; Milosav Gagovi, 23 July 2007, T. 8691.
27
Case No IT-98-29/1-T 12 December 2007
The SRK had more heavy weaponry than the 1st Corps of the ABiH.282 Apart from tanks, APCs and
other combat vehicles, its weaponry included howitzers, guided missiles, guns, multiple rocket
launchers and mortars.283
80. Defence witnesses testified that the battalions, companies and platoons of the SRK had
mostly infantry weapons and no heavy weapons.284 SRK units also had precision rifles, in
particular, “7.9 millimetre calibre sniper 76” weapons.285 The Trial Chamber was also shown
written requests for large amounts of “sniper bullets”.286
81. The 1st Corps of the ABiH possessed howitzers, guns, rocket launchers, anti-armour and
anti-fortification launchers, anti-aircraft machine guns, different types of cannons, up to 100
mortars, as well as a large quantity of hand-grenades.287 The evidence of the number of tanks
281 Vlajko Bo`i, 17 July 2007, T. 8402 – 8403.
282 Rupert Smith, 7 Mar 2007, T. 3360; David Harland, P2, MT. 28701.
283 Ghulam Muhammad Mohatarem, 19 Jan 2007, T. 752; Harry Konings, 12 Mar 2007, T. 3561; Vahid Karaveli,
27 Mar 2007, T. 4105, P493, p. 4; Martin Bell, 26 Apr 2007, T. 5261; Stevan Veljovi, 29 May 2007, T. 5805, 30 May
2007, T. 5835; Sini{a Krsman, 6 June 2007, T. 6268 – 6269, 6298; Vaso Elez, 6 June 2007, T. 6313; Zoran Samardži,
13 June 2007, T. 6625; T-2, 20 June 2007, T. 6933 – 6934; T-48, 22 June 2007, T. 7134, 7148 – 7149; Predrag Trapara,
27 June 2007, T. 7390 – 7391; Stjepan Ðuki, 3 July 2007, T. 7506; Milan Mandi, 4 July 2007, T. 7577; Borislav
Kovaevi, 9 July 2007, T. 7900 – 7901, 7903; Ljuban Mrkovi, 13 July 2007, T. 8198 – 8200; Miroslav Peji, 16 July
2007, T. 8372, 8386 – 8387; David Harland, P2, MT. 28701; John Jordan, P267, p. 7; P502, Military map of Sarajevo
marked by Vahid Karaveli; W-156, P625, pp 23 - 24 (under seal); P669, Order by SRK Commander, dated 27 August
1994; P707, SRK report, dated 15 May 1995; P817, Report to SRK command, dated 30 June 1994. See also T-53,
11 June 2007, T. 6391 – 6393; P392, Protest letter, dated 3 December 1994; P620, Videoclip.
284 Dragan Simi}, 5 June 2007, T. 6182 – 6183, 6195; Vaso Elez, 6 June 2007, T. 6304, 6313; Zoran Samardži,
13 June 2007, T. 6625; Anelko Dragaš, 22 June 2007, T. 7071, 7121; T-48, 22 June 2007, T. 7134, 7150; Predrag
Trapara, 27 June 2007, T. 7377, 7390 – 7392; Milan Mandi 4 July 2007, T. 7577; Borislav Kovaevi, 9 July 2007,
T. 7900 – 7901; 7903; Momilo Gojkovi, 13 July 2007, T. 8257, 8272; T-15, 13 July 2007, T. 8319; T-9, 16 July
2007, T. 8348; Vlajko Bo`i, 17 July 2007, T. 8408 – 8409, 8468 – 8471; Milorad Ko{arac, 26 July 2007, T. 8878.
285 Vahid Karaveli, P494, GT. 11796; Ismet Hadži, 6 Mar 2007, T. 3230. According to Prosecution expert Patrick van
der Weijden, the Dragunov and M76 rifle were the most common sniper rifles in the inventory of the VRS with the
majority being the M76 type, P514, Report of Patrick van der Weijden on sniping incidents in Sarajevo 94-95, dated
23 March 2007 (“Expert report Patrick van der Weijden”), pp 58, 60. Cf. Ivan Stamenov, 22 Aug 2007, T. 9023, 9058;
D360, Forensic ballistics expert report by Ivan Stamenov, dated July 2007 (“Expert report Ivan Stamenov”), pp 2 - 3, 8
- 9.
286 See e.g. P765, Report on expenditure of ammunition, dated 11 January 1995 (under seal), authenticated by T-53,
11 June 2007, T. 6408 – 6409, 6420; P766, Request for ammunition, dated 16 June 1995, authenticated by T-53,
11 June 2007, T. 6452; P775, Request for ammunition, dated 28 June 1995; P729, Request by SRK Commander,
27 July 1995. According to Prosecution expert Lt. Van der Weijden, both 7.62 mm and 7.92 m bullets could be used
with the M76; the Dragunov rifle could be used with 7.62 mm bullets, P514, Expert report Patrick van der Weijden,
p. 58. Col. Stamenov also testified that the 7.62 mm calibre could be used by automatic rifles, Kalashnikov, light
machine-guns, machine-guns M84 and by M76 sniper Dragunov, Ivan Stamenov, 22 August 2007, T. 9058. Col.
Stamenov further testified that 7.9 mm bullets could be used with light machine guns, and with M76, Ivan Stamenov,
22 Aug 2007, T. 9023. See also Stevan Veljovi, 30 May 2007, T. 5835.
287 David Fraser, 8 Feb 2007, T. 1851, D46, Military map marked by David Fraser; W-137, 19 Feb 2007, T. 2480; Ismet
Hadži, 6 Mar 2007, T. 3216 – 3217; Stevan Veljovi, 29 May 2007, T. 5754, 5761, 5795, 5804 – 5806; Dražen
Maunaga, 12 June 2007, T. 6487; T-48, 22 June 2007, T. 7169; T-60, 25 July 2007, T. 8789; Vahid Karaveli, P493,
p. 6, P494, GT. 11961 – 11964; John Jordan, P267, p. 8; D187, Report on 1st Corps combat achievements, 1 November
1994; D225, Order by Rasim Deli}, dated 18 December 1994; D144, Order by Fikret Prevljak, dated 11 June 1995;
D195, Order of Sifet Pod`i}, dated 13 June 1995; D193, combat report by Rasid Sobo, dated 16 June 1995; D217,
Interim combat report by Fikret Prevljak, dated 1 July 1995 (“Interim combat report by Fikret Prevljak, 1 July 1995”).
28
Case No IT-98-29/1-T 12 December 2007
available to the ABiH in Sarajevo ranges from one tank to twelve tanks.288 There is evidence that
the ABiH also had mortars mounted on vehicles.289
82. Berko Zeevi, Prosecution expert on modified air bombs, testified that 82 mm shells, made
of cast steel, were produced in the Livnica foundry in the broad area of Alipašino Polje. The
maximum calibre that could have been produced within Sarajevo was 120 mm, but these were not
produced at the foundry.290 According to Maj. Gen. Karaveli, the 1st Corps used ammunition from
countries such as the United States of America, Croatia, Germany and some Islamic countries, and
ten to 20 per cent came from old JNA stores.291
83. With regard to sniper weapons, some witnesses denied that the ABiH had modern precision
rifles appropriate for sniping and testified that normal hunting rifles were used instead.292 However,
there is evidence that before and during the Indictment period, the ABiH did have sniper weapons,
including sniper rifles with optical sights.293 T-53, a member of the SRK, testified that optical sights
for sniper rifles were manufactured in Zrak Factory under ABiH control in Sarajevo.294 In the
opinion of Lt. Patrick van der Weijden, Prosecution expert on sniping, it is very likely that the same
sniping weapons were available to the ABiH and the VRS.295
84. There is evidence that neither the SRK nor the 1st Corps of the ABiH removed all heavy
weaponry when the TEZ came into force.296 Requests for ammunition for heavy weapons in 1994
and 1995 show that the SRK used their heavy weaponry during the Indictment period.297 For
example, on 25 July 1995, a request from 1st Sarajevo Mechanised Brigade for, inter alia, 40 pieces
of 120 mm rounds was approved. According to an order issued, the ammunition was intended for
288 Vahid Karaveli, P494, GT. 11792, 11794, 11960, P495, GT. 18105, 18115 – 18116, 18153; Ghulam Muhammad
Mohatarem, 19 Jan 2007, T. 752; Per Anton Brennskag, 8 Mar 2007, T. 3489; T-7, 19 June 2007, T. 6848; D34, Report
to the ABiH Supreme Command Staff, dated 12 August 1994, p. 1; D187, Report on 1st Corps combat achievements,
1 November 1994.
289 Stevan Veljovi, 29 May 2007, T. 5807.
290 Berko Zeevi, 20 Apr 2007, T. 4886 – 4887, D171, pp 1 - 2.
291 Vahid Karaveli, P493, p. 6. See also Stevan Veljovi}, 24 May 2007, T. 5714 – 5715; Goran Kovaevi, 12 June
2007, T. 6538 – 6541; Ljuban Mrkovi, 12 July 2007, T. 8151; Vlajko Bozi}, 17 July 2007, T. 8402; Milosav Gagovi,
23 July 2007, T. 8689 – 8691.
292 Ismet Hadži, 6 Mar 2007, T. 3230 – 3231; Vlajko Bozi}, 17 July 2007, T. 8402. See also Sanjin Hasanefendi,
16 Feb 2007, T. 2405 – 2406; W-12, 2 Mar 2007, T. 3069 – 3070.
293 Ismet Hadži, 6 Mar 2007, T. 3256; W-156, 27 Apr 2007, T. 5395 – 5396 (closed session), P625, p. 34 (under seal);
Radomir Visnji, 26 June 2007, T. 7289; D250, Order by Esad Paldn concerning use of cold storage depot, dated
18 September 1993 (“Order, 18 September 1993”); D99, Order by Nedžad Ajnadži, dated 14 February 1994; D107,
Report by Fikret Prevljak to 1st Corps command, dated 26 June 1995, pp 1 - 2 (“Report by Fikret Prevljak, 26 June
1995”); D64, Order by Fikret Prevljak, dated 19 September 1995.
294 T-53, 11 June 2007, T. 6422 – 6423.
295 Patrick van der Weijden, 29 Mar 2007, T. 4318.
296 Rupert Smith, 7 Mar 2007, T. 3357; Stevan Veljovi, 29 May 2007, T. 5754; Ljuban Mrkovi}, 12 July 2007,
T. 8138. See supra, para. 50.
297 P766, Request for ammunition, dated 16 June 1995; P776, Request for ammunition, dated 1 July 1995; P805, Order
to issue ammunition, dated 25 July 1995.
29
Case No IT-98-29/1-T 12 December 2007
“the replenishment of your units on the inner ring”.298 There is evidence that the SRK also had
access to and used heavy weapons which were stored in the WCPs.299
85. Several Prosecution witnesses testified that the SRK had better equipment and weapons than
the 1st Corps of the ABiH and that their troops and officers were better trained.300 For example, the
legend to a map used by the SRK showed an imbalance in available weaponry between the ABiH
and the SRK.301
86. The Bosnian Muslims had a numerical advantage in troop strength over the Bosnian
Serbs.302 Maj. Gen. Karaveli testified that the “inferiority” of the 1st Corps in terms of weaponry
was not compensated by manpower because equipment and technological development was a
decisive factor.303
87. However, there is also evidence that the equipment of the SRK was of mediocre quality and
the SRK had difficulties with maintenance and replenishment.304 According to Col. Dragievi,
when he became assistant commander on 22 November 1994, there was a shortage of food, fuel and
ammunition and weapons, especially large calibre weapons.305 T-53 testified that there were
problems with ammunition, but that the VRS Main Staff in most cases approved requests for
ammunition for infantry weapons.306 According to T-53, supplies of spare parts, fuel and
ammunition were problematic but the principal problem was “how to get fuel to the units” in
1994.307 However, Maj. Eimers did not believe that the Bosnian Serbs encountered any logistical
problems.308 Defence witnesses also testified that the Pretis Factory in Vogoša, which was under
the control of the SRK, produced ammunition during the war.309
88. Evidence was presented that the ABiH received better equipment and weaponry at the end
of 1994 or in 1995 and that this put the Bosnian Serbs in a relatively weaker position.310 T-53
298 P805, Order to issue ammunition.
299 See supra, paras 50, 52.
300 Ghulam Muhammad Mohatarem, 19 Jan 2007, T. 752; Rupert Smith, 7 Mar 2007, T. 3358; David Harland, P1,
MT. 26971; Vahid Karaveli, P495, GT. 17654; Ronald Eimers, P585, p. 8; W-156, P625, p. 24 (under seal).
301 P506, Text area cut-out of map.
302 David Harland, 16 Jan 2007, T. 415, P1, MT. 26961; Rupert Smith, 7 Mar 2007, T. 3359; Luka Dragievi, 26 Mar
2007, T. 4050; Stevan Veljovi, 24 May 2007, T. 5718; Goran Kovaevi, 13 June 2007, T. 6565; Borislav Kovaevi},
9 July 2007, T. 7893, 7895, 7902.
303 Vahid Karaveli, 29 Mar 2007, T. 4270.
304 W-156, P625, pp 24, 30, 35 (under seal). See also Anelko Dragaš, 22 June 2007, T. 7073 – 7074; Ljuban Mrkovi,
13 July 2007, T. 8197 – 8198; Vahid Karaveli, P493, p. 9.
305 Luka Dragievi, 26 Mar 2007, T. 4009 – 4010, 4015 – 4016.
306 T-53, 11 June 2007, T. 6396 – 6397, 6403 – 6405, 6432 – 6433.
307 Ibid., T. 6399, 6403.
308 Ronald Eimers, P585, p. 9.
309 T-53, 11 June 2007, T. 6440 – 6441; Goran Kovaevi, 12 June 2007, T. 6538 – 6540, 13 June 2007, T. 6601.
310 David Harland, 16 Jan 2007, T. 415 – 416, P1, MT. 26961; Ghulam Muhammad Mohatarem, 19 Jan 2007, T. 751;
Rupert Smith, 7 Mar 2007, T. 3359; Luka Dragievi, 26 Mar 2007, T. 4050 – 4051; W-156, 27 Apr 2007, T. 5356
30
Case No IT-98-29/1-T 12 December 2007
testified that the supply for the ABiH was “far better” at a time when the SRK was facing a supply
shortage.311 Maj. Eimers testified that, during the winter of 1994 and 1995, the ABiH was obviously
getting support and equipment from other nations.312 David Harland testified that by the end of the
war, the ABiH was “reasonably well equipped, organised and trained”.313 A VRS directive of 17
March 1995 listed a multitude of weapons possessed by the ABiH.314 However, Gen. Smith testified
that he saw no evidence to support that amount of weapons in the city of Sarajevo.315 Many
witnesses testified that the increase in weapons was primarily confined to light weapons and that the
ABiH never completely rectified the imbalance in heavy weapons.316
(b) Specific Weapons
(i) Mortars
89. Prosecution witnesses testified that mortars are generally used to target areas, rather than
individual targets.317 Prosecution and Defence witnesses testified that mortars are designed to kill
personnel.318 QMS Higgs, expert for the Prosecution on mortars, testified that the maximum range
of an 82 mm mortar is approximately 4,500 metres, whereas the maximum range of a 120 mm
mortar is between seven and eight kilometres.319 In his report, Maj. Gen. Desimir Garovi}, the
Defence expert on mortars, lists 4,850 metres as the maximum range for 82 mm mortars and
6,340 metres for 120 mm mortars.320
90. QMS Higgs testified that the use of mortars tends “to be controlled very closely” by the
military command because mortars are valuable assets.321 He added that “medium and heavy
mortars are controlled at command level.”322 In his opinion, mortars are not moved unless this is
ordered “by the commander.”323
(closed session); Vaso Elez, 7 June 2007, T. 6333 – 6334; D183, Sitrep on update of situation in Sarajevo, dated 1 July
1995 (“UNPROFOR HQ sitrep, 1 July 1995”); P19, UNPROFOR sitrep, dated 2 July 1995, p. 3.
311 T-53, 11 June 2007, T. 6412, 6440.
312 Ronald Eimers, 20 Apr 2007, T. 4807, P585, p. 9.
313 David Harland, P2, MT. 28702.
314 P336, VRS Directive, dated 17 March 1995, p. 4.
315 Rupert Smith, 7 Mar 2007, T. 3368 – 3370.
316 David Harland, 16 Jan 2007, T. 415 – 416, P2, MT. 28701 – 28702; Ghulam Muhammad Mohatarem, 19 Jan 2007,
T. 752; Rupert Smith, 7 Mar 2007, T. 3358, 3407 – 3408.
317 Thorbjorn Overgard, 19 Jan 2007, T. 695 – 696; Harry Konings, 12 Mar 2007, T. 3561 – 3562.
318 W-138, 30 Jan 2007, T. 1210; Richard Higgs, 23 Apr 2007, T. 5000; T-48, 22 June 2007, T. 7150 – 7152; Desimir
Garovi}, 24 Aug 2007, T. 9184 – 9185.
319 Richard Higgs, 23 Apr 2007, T. 5001. See also Vlajko Bozi}, 17 July 2007, T. 8470.
320 D366, Expert report on incidents of mortar and aircraft bomb shelling by Desimir Garovi}, dated 2007 (“Expert
report Desimir Garovi}”), pp 4, 6.
321 Richard Higgs, 23 Apr 2007, T. 5005.
322 Ibid., T. 5006.
323 Ibid., 24 Apr 2007, T. 5077 – 5078.
31
Case No IT-98-29/1-T 12 December 2007
91. Some witnesses testified that mortars are accurate weapons.324 According to QMS Higgs, “a
proficient detachment with training can easily hit targets, throughout its ranges, to an accuracy of
less than 40 metres.”325 The Defence put to QMS Higgs that the deviation of the first shells in
relation to the target could go up to “128 metres in direction and up to 312 metres in distance.”326
He explained that all mortars have deviations and that, in general, the first mortar shells fired at a
target are less accurate than later shells.327 QMS Higgs, and W-137 and Ned`ib \ozo, both BiH
police officers, gave evidence as to factors that contribute to the precision of mortars, such as
experience of a mortar crew, the experience and skills of the observer, the stability of the base plate,
the pre-recording of targets and the weather.328 When a mortar remains located in one place for an
extended period of time, the stability of the base plate increases and, as a result, so does the
accuracy of the mortar, unless it was not fired for some time and the weather conditions changed.329
Maj. Gen. Garovi}, testified that artillery is often moved, sometimes two or three times a day,
because the warring factions try to detect the firing positions and destroy the artillery weapons at
those positions.330 QMS Higgs testified that during the conflict in Sarajevo, mortars remained in the
same position for some time in order to achieve higher stability.331
(ii) Modified Air Bombs
92. The Trial Chamber heard evidence that among the weapons used for shelling Sarajevo, the
VRS used modified air bombs.332 An air bomb is ordinarily dropped from an aeroplane flying over
an area.333 However, several Prosecution witnesses testified that the VRS attached rockets to air
bombs and fired them from launch pads on the ground.334
324 W-137, 19 Feb 2007, T. 2416 – 2417; Richard Higgs, 23 Apr 2007, T. 5002, 24 Apr 2007, T. 5084 – 5085. Cf.
Thorbjorn Overgard, 19 Jan 2007, T. 680 – 681; Stevan Veljovi}, 30 May 2007, T. 5876 – 5877.
325 P588, Expert report Richard Higgs, p. 2. See also W-138, 30 Jan 2007, T. 1211.
326 Richard Higgs, 24 Apr 2007, T. 5084.
327 Ibid., T. 5084.
328 W-137, 19 Feb 2007, T. 2417; Richard Higgs, 23 Apr 2007, T. 5003 – 5005, 24 Apr 2007, T. 5075 – 5077, 5084 –
5085, P588, Expert report Richard Higgs, p. 3; Ned`ib \ozo, P363, p. 3.
329 Richard Higgs, 23 Apr 2007, T. 5003 – 5004, 24 Apr 2007, T. 5081 – 5083; Ned`ib \ozo, P363, p. 3.
330 Desimir Garovi}, 23 Aug 2007, T. 9109. Cf. Richard Higgs, 24 Apr 2007, T. 5077 – 5078.
331 Richard Higgs, 23 Apr 2007, T. 4997, 5004, 24 Apr 2007, T. 5055 – 5056.
332 The Trial Chamber notes the term ‘KREMA’ was also used to describe modified air bombs, W-156, 27 Apr 2007,
T. 5330, 5344 – 5345 (closed session). See also Berko Ze~evi}, 20 Apr 2007, T. 4824, 4827, 23 Apr 2007, T. 4982.
333 Thorbjorn Overgard, 18 Jan 2007, T. 639; Thomas Knustad, 13 Feb 2007, T. 1989; Asam Butt, 15 Feb 2007,
T. 2193; Desimir Garovi}, 23 Aug 2007, T. 9152.
334 Thorbjorn Overgard, 18 Jan 2007, T. 640; Ghulam Muhammad Mohatarem, 19 Jan 2007, T. 715; Cornelis Hendrik
Nicolai, 24 Jan 2007, T. 963; David Fraser, 8 Feb 2007, T. 1826; Thomas Knustad, 13 Feb 2007, T. 1989 – 1991;
Bogdan Vidovi}, 14 Feb 2007, T. 2084 – 2085; W-137, 19 Feb 2007, T. 2421 – 2422; Per Anton Brennskag, 8 Mar
2007, T. 3450; Berko Ze~evi}, 20 Apr 2007, T. 4822 – 4823, 4829 – 4830; W-57, P539, p. 3 (under seal). See also
P716, Report by Ilidža Brigade, dated 10 June 1995.
32
Case No IT-98-29/1-T 12 December 2007
93. The explosive charge of the air bombs varied between 100 kilograms and 250 kilograms.335
Two types of air bombs were used in Sarajevo: the FAB-100 and the FAB-250.336 The numbers in
the name indicate the approximate weight of the bombs.337 Evidence showed that air bombs were
produced in the Pretis Factory, which was used by the SRK during the Indictment period.338 Berko
Ze~evi}, Prosecution expert on modified air bombs, testified that the FAB-100 had TNT as its
explosive charge, whereas the typical explosive charge for a FAB-250 was a fuel-air mixture.339
94. In his report, Berko Ze~evi} explained that fuel-air explosions cause a lethal wave of
overpressure and destroy everything and everyone in the blast.340 He noted that the effects of a blast
wave of a fuel-air explosion could vary, depending on the type of location it hit as well as weather
conditions.341 Also, due to the blast wave, strange phenomena could occur: areas in the middle of a
building could stay completely intact because the blast wave hit both sides of the area.342 As a
special characteristic, he mentioned that a bomb with a fuel-air explosive left little to no shrapnel
around the point of detonation and left remnants of the casing of the bomb after the explosion.343
Such a bomb differed from a bomb carrying TNT, which resulted in a lot of shrapnel around the
point of detonation but no remnants of the bomb’s body.344 According to Bakir Naka{, a doctor at
the State Hospital at the time, he received patients with the “so-called blast syndrome”, which
meant that the patient suffered injuries to their internal organs. This type of injury is not necessarily
accompanied by shrapnel wounds or blood.345
95. The modified air bombs were launched from improvised systems on the back of trucks.346
Berko Ze~evi} listed the effective range of a FAB-100 as 4,145 to 5,560 metres and the effective
range of a FAB-250 as 5,820 to 7,680 metres.347
335 Berko Ze~evi}, 20 Apr 2007, T. 4820. See also Bogdan Vidovi}, 14 Feb 2007, T. 2085; Asam Butt, 15 Feb 2007,
T. 2194.
336 Berko Ze~evi}, 20 Apr 2007, T. 4820.
337 Ibid.; P586, Expert report by Berko Ze~evi} on modified air bombs, dated February 2007 (“Expert report Berko
Ze~evi}”), p. 9.
338 Berko Ze~evi}, 20 Apr 2007, T. 4822, 4825 – 4826; Milomir [oja, 24 Apr 2007, T. 5115 – 5116; P714, Requisition
of 50 air bombs, dated 4 June 1995; P716, Report by Ilidža Brigade, dated 10 June 1995; P720, Combat report, dated 27
June 1995, p. 2; P721, Order by VRS Main Staff, dated 28 June 1995; P719, Report to SRK Command, dated 23 July
1995; P731, Order by SRK Head of Artillery, dated 10 August 1995.
339 Berko Ze~evi}, 23 Apr 2007, T. 4942 – 4943.
340 Ibid., 20 Apr 2007, T. 4821 – 4822, 23 Apr 2007, T. 4943 – 4946; P586, Expert report Berko Ze~evi}, pp 105 - 114.
341 P586, Expert report Berko Ze~evi}, p. 106.
342 P586, Expert report Berko Ze~evi}, p. 106.
343 Berko Ze~evi}, 23 Apr 2007, T. 4821 – 4822, 4946, 4960 – 4961. See also W-138, 30 Jan 2007, T. 1210.
344 Berko Ze~evi}, 23 Apr 2007, T. 4946; P586, Expert report Berko Ze~evi}, pp 107 - 109.
345 Bakir Naka{, 29 Jan 2007, T. 1107 – 1108.
346 Berko Ze~evi}, 20 Apr 2007, T. 4843; P586, Expert report Berko Ze~evi}, p. 101; W-116, P548, p. 3 (under seal).
See also W-57, 17 Apr 2007, T. 4552, P539, p. 4 (under seal); Milomir [oja, 25 Apr 2007, T. 5150; Stevan Veljovi},
29 May 2007, T. 5801, 31 May 2007, T. 5909 – 5910; P731, Order by SRK Head of Artillery, 10 August 1995.
347 Berko Ze~evi}, 20 Apr 2007, T. 4837, 4841 – 4842; P586, Expert report Berko Zeevi, pp 87 - 88. See also
Thomas Knustad, 13 Feb 2007, T. 1990.
33
Case No IT-98-29/1-T 12 December 2007
96. Witnesses described modified air bombs as having some very distinct characteristics. They
described seeing a smoke trail from the rockets propelling the air bomb through the air.348 They
recalled that the bombs were slow-moving and made a distinctive, loud sound; some witnesses
described hearing a sound which resembled a low-flying aeroplane just before one of these bombs
landed.349 Berko Ze~evi} testified that this sound was caused by air going through the rockets and
that this sound could only be heard if one stands “laterally” from the flight path of the bomb.350
According to Ekrem Suljevi}, a member of the BiH Counter Sabotage Protection Department
(“KDZ”) during the Indictment period, modified air bomb craters were distinct from craters caused
by other weaponry; a modified air bomb left a big hole if it hit the ground, and it left “large scale
ruin” if it hit a building.351
97. Several witnesses testified that once a modified air bomb was launched, its flight path could
not be managed; it could only be directed at a general area.352 As a result, modified air bombs were
described as “a highly inaccurate weapon, but nonetheless a weapon with extremely high explosive
force.”353 Lt. Com. Thomas Knustad, a Norwegian UNMO in Sarajevo, estimated that a modified
air bomb could deviate from its intended target by as much as one kilometre.354 Berko Ze~evi}
noted that in addition to the inherent inaccuracy of air bombs and unguided missiles, the
unprofessional way the rockets were mounted under the air bomb increased the risk of deviation of
the bomb while in flight.355 He testified that modified air bombs were “uncontrollable.”356
According to Maj. Stevan Veljovi}, testifying for the Defence, modified air bombs were
“completely inaccurate” and “highly destructive”.357
98. Several witnesses with military backgrounds testified that modified air bombs were
inappropriate weapons and served no military purpose.358 Lt. Col. Asam Butt, while commenting
that in a purely military environment a modified air bomb would have a negligible effect, testified
348 Per Anton Brennskag, 8 Mar 2007, T. 3450 – 3451; Thomas Hansen, 2 Apr 2007, T. 4357 – 4358.
349 Thorbjorn Overgard, 19 Jan 2007, T. 676; Thomas Knustad, 13 Feb 2007, T. 1990 – 1991; Bogdan Vidovi}, 14 Feb
2007, T. 2084, 2108; W-137, 19 Feb 2007, T. 2423; Džemaludin Luinovi}, 1 Mar 2007, T. 2965; W-107, 12 Mar 2007,
T. 3513, 3516; An|a Gotovac, 3 Apr 2007, T. 4463; Berko Ze~evi}, 23 Apr 2007, T. 4968; David Harland, P1,
MT. 26959; W-95, P520, p. 2 (under seal).
350 Berko Ze~evi}, 23 Apr 2007, T. 4983 – 4984.
351 Ekrem Suljevi}, 2 Mar 2007, T. 3096. See also W-138, 30 Jan 2007, T. 1209.
352 Thorbjorn Overgard, 18 Jan 2007, T. 643 – 644, 19 Jan 2007, T. 679 – 680, 695; Ghulam Muhammad Mohatarem,
19 Jan 2007, T. 717; David Fraser, 8 Feb 2007, T. 1826; Thomas Knustad, 13 Feb 2007, T. 1990; Asam Butt, 15 Feb
2007, T. 2193 – 2194; W-137, 19 Feb 2007, T. 2422; Thomas Hansen, 2 Apr 2007, T. 4357 – 4358; Ekrem Suljevi},
P310, p. 3; W-116, P548, p. 3 (under seal).
353 Cornelis Hendrik Nicolai, 24 Jan 2007, T. 963. See also Thomas Knustad, 13 Feb 2007, T. 1990; W-137, 19 Feb
2007, T. 2422; Ekrem Suljevi}, P 310, p. 3; Ned`ib \ozo, P 364, p. 2; W-116, P548, p. 3 (under seal).
354 Thomas Knustad, 13 Feb 2007, T. 1990.
355 Berko Ze~evi}, 20 Apr 2007, T. 4830 – 4832, 4849 – 4850.
356 Ibid., T. 4905. See also Stevan Veljovi}, 31 May 2007, T. 5912.
357 Stevan Veljovi}, 31 May 2007, T. 5912.
358 David Fraser, 8 Feb 2007, T. 1826; Thomas Knustad, 13 Feb 2007, T. 1990, 1992; Asam Butt, 15 Feb 2007,
T. 2194; Martin Bell, 26 Apr 2007, T. 5262 – 5263.
34
Case No IT-98-29/1-T 12 December 2007
that the weapon could be used to hit buildings in populated areas, giving some “kind of profit” to
the side using the weapon.359 Maj. Thorbjorn Overgard, a Norwegian UNMO, and Brig. Gen. Fraser
could not think of any situation in which a commander of an army would choose to use a modified
air bomb.360 Similarly, according to Lt. Com. Knustad, any forces deployed around Sarajevo would
have known that the use of modified air bombs in such a densely-populated city, full of civilian
houses very close to each other, would result in a lot of destruction and damage to the civilian
population and infrastructure.361 Lt. Com. Knustad was of the opinion that modified air bombs were
designed to create fear.362
99. Maj. Gen. Garovi} contested the evidence on modified air bombs and, in particular, the
evidence on technical aspects as provided by Berko Ze~evi}. He asserted that the JNA possessed
FAB-250s and FAB-100s, but only filled with conventional TNT explosives.363 Further, he testified
that fuel-air explosives did not cause casualties in the manner described in Berko Ze~evi}’s report.
Rather, he said, fuel-air explosives were designed to kill personnel, while causing very little damage
to structures.364 If an air bomb were to hit a city, or a market, he would expect “hundreds of
casualties, even up to a thousand people.”365 Similarly, another Defence witness who testified about
modified air bombs, Capt. 1st Class Ljuban Mrkovi}, said that the destructive power of an air bomb
was such that “within a radius of 150 metres nothing would remain standing.”366 According to Maj.
Gen. Garovi}, several witnesses claimed to have been in the epicentre of the explosion without
suffering any consequence, which he deemed impossible.367 In his opinion, persons exposed to the
explosion of FAB-250s, filled with conventional TNT or fuel-air explosives, within the radius of
150 metres outside a reinforced concrete shelter, would suffer fatal injuries.368 He concluded that
despite material evidence found on the sites of shelling incidents, “such as parts of rocket engines
and other traces, the manner in which the explosion occurred and the marks left on the objects,
cannot be accepted as FAB-250 explosion sites”, and noted that rocket motors “can be placed at a
location with a purpose.”369 In relation to the absence of shrapnel, he commented that when there
359 Asam Butt, 15 Feb 2007, T. 2194.
360 Thorbjorn Overgard, 18 Jan 2007, T. 643 – 644, 19 Jan 2007, T. 696; David Fraser, 8 Feb 2007, T. 1826. See also,
W-57, P539, p. 3 (under seal).
361 Thomas Knustad, 13 Feb 2007, T. 1991 – 1992. See also, Cornelis Hendrik Nicolai, 24 Jan 2007, T. 963 – 964;
Asam Butt, 15 Feb 2007, T. 2194; Sanjin Hasanefendi}, 16 Feb 2007, T. 2326.
362 Thomas Knustad, 13 Feb 2007, T. 1990. See also, Berko Ze~evi}, 20 Apr 2007, T. 4904; W-57, P539, p. 3 (under
seal).
363 D366, Expert report Desimir Garovi}, p. 16.
364 Desimir Garovi}, 23 Aug 2007, T. 9152 – 9153.
365 Ibid., T. 9153.
366 Ljuban Mrkovi}, 13 July 2007, T. 8233. The Trial Chamber notes that the witness testified that before the conflict,
he held the rank of Captain 1st Class in the JNA. There is no evidence as to what rank he held in the SRK during the
conflict.
367 Desimir Garovi}, 23 Aug 2007, T. 9154; D366, Expert report Desimir Garovi}, p. 16.
368 Ibid.
369 D366, Expert report Desimir Garovi}, p. 16.
35
Case No IT-98-29/1-T 12 December 2007
were no shrapnel marks, that meant that an explosive device without a case exploded and that “a
certain quantity of classical explosive detonated in a certain way can create an explosion that causes
destruction but does not generate fragments that would kill personnel.”370
100. When asked to comment on the alleged inaccuracy of modified air bombs, Maj. Gen.
Garovi} testified that, if the evidence of Berko Ze~evi} were to be accepted, “taking into account
the deployment of the forces on both sides, one could give no guarantees and one could not even
begin to guess what site such a projectile could hit.”371
101. The Trial Chamber notes that, in his report, Maj. Gen. Garovi} referred to publications
pertaining to FAB-250 air bombs but he did not specify exactly what publications provided the
basis for his findings. An examination of his sources does not enable the Trial Chamber to
determine what section pertains to air bombs and fuel-air explosives. His evidence as to the result of
an explosion of an air bomb with a fuel-air explosive is contradicted by the evidence of witnesses
and documentary evidence discussed above.372
a. The Possession of Air Bombs by the VRS and the ABiH
102. When asked about the availability of air bombs and the use of modified air bombs by the
SRK, a number of witnesses testified that they had never heard about modified air bombs or that
they did not know whether air bombs were launched from the ground.373 However, there is
extensive documentary evidence showing that the SRK requested and received “100/105 kilogram”,
150 kilogram and 250 kilogram air bombs in 1994 and 1995.374 Evidence also shows that the SRK
possessed and constructed modified air bombs and air bomb launchers.375 For example, on 10 June
370 Desimir Garovic, 23 Aug 2007, T. 9155.
371 Ibid., T. 9151.
372 For the documentary evidence, see also supra, Section II.B.2.(b)(ii) Modified Air Bombs; infra, II.E.6. Shelling
Incidents Representative of the “Campaign”.
373 Luka Dragievi, 27 Mar 2007, T. 4069, 4071 – 4075; Sini{a Krsman, 6 June 2007, T. 6278 – 6280, 6284 – 6286;
T-53, 11 June 2007, T. 6405 – 6407, 6457 – 6459; Zoran Trapara, 26 June 2007, T. 7343 – 7345; Milan Mandi, 4 July
2007, T. 7596 –7599, 7615 – 7616; Borislav Kovaevi, 10 July 2007, T. 7939; Ljuban Mrkovi, 13 July 2007, T. 8222
– 8225; Miroslav Peji, 16 July 2007, T. 8387; Vlajko Bozi, 17 July 2007, T. 8472 – 8476.
374 P765, Report on expenditure of ammunition, 11 January 1995 (under seal); P790, Report by Milivoj [olar to VRS,
dated 12 May 1995; P714, Requisition of 50 air bombs, 4 June 1995; P761, Order to deliver air bombs, dated 17 June
1995; P767, Request for ammunition, dated 22 June 1995; P720, Combat report, 27 June 1995; P721, Order by VRS
Main Staff, 28 June 1995; P776, Request for ammunition, 1 July 1995; P907, Order by SRK commander, dated 11 July
1995; P722, Request by the SRK Commander, dated 15 July 1995; P724, Order by VRS Main Staff, dated 20 July
1995; P727, Request by the 3rd Sarajevo Infantry Brigade, dated 25 July 1995; P729, Request by the SRK Commander,
27 July 1995; P768, Order issuing SRK units, dated 4 August 1995; P936, Report of the receipt of material supplies and
funds, dated 5 August 1995; P732, Order by the SRK command, dated 27 August 1995. See also David Harland, P1,
MT. 26959; David Fraser, 8 Feb 2007, T. 1825; Asam Butt, 15 Feb 2007, T. 2193.
375 Milomir [oja, 25 Apr 2007, T. 5121 – 5127; P506, Text area cut-out of map; P508, Request by SRK artillery
commander, dated 8 June 1995; P509, Report by Igman Brigade, dated 9 June 1995; P510, Report by First Romanija
Brigade, dated 10 June 1995; P511, Report by Ilidža Brigade, dated 12 June 1995. P508 to P511 were shown to Vahid
Karaveli, 27 Mar 2007, T. 4119. P716, Report by Ilidža Brigade, dated 10 June 1995; P512, Report of 3rd Sarajevo
36
Case No IT-98-29/1-T 12 December 2007
1995, the Ilidža Brigade reported to the SRK command that they had provided all means for the
production of air bombs and requested the SRK command to provide them with 90 engines for air
bombs.376 On 11 July 1995, several brigades were ordered to issue air bombs and a certain Maj.
Simi was ordered to request another two air bombs from the Pretis Factory and prepare a
deployment plan for an air bomb launcher.377 Some Defence witnesses testified that they had heard
about attempts to use air bombs and that SRK soldiers were killed during these attempts.378
103. The Defence alluded to the possibility of the possession of modified air bombs by the ABiH.
Maj. Veljovi testified that intelligence organs informed him during the war, especially in 1994 and
1995, that the ABiH imported or manufactured air bombs. However, he never saw documents
relating to this.379 The Defence produced a transcript of the 291st session of the Presidency of the
BiH recording a debate concerning an expected delivery of 800 aerial bombs by 26 aircraft. The
transcript also documents President Alija Izetbegovi} saying that these aircraft had not yet
arrived.380 David Harland did not confirm the Defence suggestion put to him that the ABiH
procured 800 air bombs.381
104. Several other witnesses testified that the ABiH did not have air bombs or air bomb
launchers.382 Furthermore, Maj. Gen. Karaveli said that neither the ABiH nor the 1st Corps had any
other weapons as powerful or of the same calibre as modified air bombs.383 The legend to a map
used by the SRK indicated that the SRK had two air bomb launchers whereas the ABiH did not
have any.384
105. Both Berko Zeevi and W-137, a member of the BiH KDZ during the Indictment period,
testified that air bombs would have been useless because the ABiH did not have the necessary
components to modify them. Moreover, electricity, fuel and proper machinery were lacking.385
Berko Zeevi further testified that it was not possible to import the components, in particular, the
Infantry Brigade, dated 14 June 1995; P663, Report from SRK Command, dated 15 June 1995; P907, Order by SRK
commander, dated 11 July 1995; P719, Report to SRK command, 23 July 1995; P731, Order by SRK Head of Artillery,
10 August 1995; P803, Request by 1st Sarajevo Mechanised Brigade, dated 20 August 1995; P804, Order to deliver air
bomb launcher, dated 22 August 1995.
376 P716, Report by Ilidža Brigade, 10 June 1995.
377 P907, Order by SRK commander, 11 July 1995.
378 Stevan Veljovi}, 29 May 2007, T. 5801, 31 May 2007, T. 5909 – 5910; Ljuban Mrkovi, 13 July 2007, T. 8223 –
8224. See also Milomir [oja, 25 Apr 2007, T. 5121 – 5123; T-2, 20 June 2007, T. 6950.
379 Stevan Veljovi, 31 May 2007, T. 5916 – 5917. See also Goran Kovaevi}, 12 June 2007, T. 6538 – 6539.
380 D305, Transcript of the 291st session of the BiH Presidency, dated 10 August 1995, pp 5, 7.
381 David Harland, 16 Jan 2007, T. 440.
382 Thorbjorn Overgard, 18 Jan 2007, T. 647; David Fraser, 8 Feb 2007, T. 1826 – 1827; Asam Butt, 15 Feb 2007,
T. 2195, 2217 – 2218; W-137, 19 Feb 2007, T. 2476 – 2477, 20 Feb 2007, T. 2517; Berko Zeevi, 20 Apr 2007,
T. 4851 – 4852, 4898 – 4899; Vahid Karaveli, 27 Mar 2007, T. 4109 – 4111; Milomir [oja, 25 Apr 2007, T. 5126;
Martin Bell, 26 Apr 2007, T. 5263; John Jordan, P267, p. 8.
383 Vahid Karaveli, 27 Mar 2007, T. 4109 – 4111, P493, p. 7.
384 P506, Text area cut-out of map.
385 W-137, 19 Feb 2007, T. 2477; Berko Zeevi, 20 Apr 2007, T. 4851 – 4852, 4896 – 4898.
37
Case No IT-98-29/1-T 12 December 2007
rocket motors and the fuel-air mixture, into Bosnia and Herzegovina, and that it was not possible to
transport air bombs and launchers through the tunnel.386 While he confirmed that there was a fuse
factory in Bugojno, Croatia, which was under the control of the ABiH, Berko Zeevi testified that
even if the bombs and rockets were available or purchased from Serbia and Croatia, as suggested by
the Defence, and if a launcher got to Sarajevo, the fuel-air explosive would still not be available.387
106. W-137 testified that unexploded modified air bombs were totally unusable and could not be
re-launched. Rather, the bombs were disarmed in order to retrieve at least “some crumbs of
explosive”.388 This was confirmed by Berko Zeevi.389 Out of every kilogram of explosive taken
from such a weapon, his unit was able to manufacture ten rifle grenades but not an air bomb.390 The
ABiH also had surrogate explosives, but Berko Zeevi testified that the supply of explosives to the
territory under the control of the ABiH remained problematic in 1994.391
Findings
107. The Trial Chamber finds that air bombs were modified in order to enable their launch from
the ground. It is also established that some of these modified air bombs carried fuel-air explosives,
rather than only TNT. The Trial Chamber bases its finding on the evidence of expert witness Berko
Zeevi, whose evidence on air bombs and fuel-air explosives and their effects was supported by
UNMOs, BiH police investigation reports and Bakir Naka{. The Trial Chamber further finds that
the SRK possessed such modified air bombs and launchers in 1994 and 1995. The Trial Chamber
bases this finding on the extensive documentary evidence and the testimony of witness Maj.
Veljovi}. The Trial Chamber is not convinced that the ABiH also had modified air bombs during
the Indictment period. The Defence suggestion to this effect was consistently rejected by all
Prosecution witnesses who were asked about it. They said that the ABiH could neither produce air
bombs, nor transport them through the tunnel and did not possess any rockets to attach them to air
bombs. The evidence of Defence witnesses Maj. Veljovi} and Goran Kovaevi}, a soldier in the
SRK, does not indicate that the ABiH was in possession of modified air bombs. The Trial Chamber,
therefore, finds that the ABiH did not possess modified air bombs.
108. Although this finding may be considered to be sufficient to dispose of the incidents of
shelling involving the use of modified air bombs, which will be discussed in Section II.E.6 below,
386 Berko Zeevi, 20 Apr 2007, T. 4851 – 4853, 4897 – 4898.
387 Ibid., T. 4897 – 4898.
388 W-137, 19 Feb 2007, T. 2480 – 2481.
389 Berko Zeevi, 20 Apr 2007, T. 4895 – 4896, D173, p. 10.
390 Ibid., T. 4895 – 4896, 4900 – 4901, D173, p. 10.
391 Ibid., T. 4900. See also D174, Order by Enver Hadžihasanovi, dated 3 November 1994.
38
Case No IT-98-29/1-T 12 December 2007
the Trial Chamber will nonetheless make a determination about the responsibility for those
incidents on the basis of all the evidence.
(iii) Snipers and Sniper Rifles
109. Lt. Van der Weijden testified for the Prosecution as an expert on sniping. He explained in
his report that snipers are expert marksmen who are adept at detecting, observing, stalking and
neutralising key enemy personnel or equipment.392 Essential material for a sniper is a precision rifle
with an optical scope.393 Brig. Gen. Fraser said the following about the qualitites of a sniper:
“A very specialised, highly skilled shooter who has an excellent field-craft in the
ability to move in and out of places without being seen. And his targets are of a
particularly high value. And we want to use him to capitalise on his
marksmanship and his field-craft to get in and out of positions”.394
110. According to Lt. Van der Weijden, shooting ranges in built-up areas were at an average of
75 metres and long shots were possible only from dominating positions with an overview from
above.395 Snipers had a choice of weapons and used a heavier calibre for longer ranges.396 Gen.
Smith testified that a sniper generally uses a rifle with a range of about 400 to 600 metres.397 In an
overview of available weapons, provided by Lt. Van der Weijden, the M70 rifle is listed as having
the lowest maximum effective range: 250 to 400 metres.398 During cross-examination, he dismissed
the possibility that the M70 rifle was the weapon most likely used for all incidents listed in the
schedules to the Indictment; he maintained that position because of the M70’s lack of accuracy both
at distances over 200 metres and, when used in its automatic mode, in hitting targets over 50 metres
away from the shooter.399 Lt. Van der Weijden’s report shows that the highest maximum effective
range for rifles, 800 metres, could be achieved with the Zastava M76 and the SVD Dragunov or its
Yugoslavian copy M91.400 For these two weapons, he noted that, in normal circumstances, the
maximum effective range was “more towards 600 metres.”401 He also listed three machine guns,
the M53, the M84 and the M87, which were used by the VRS, with a maximum effective range
between 600 and 2,000 metres.402 Col. Stamenov, appearing as an expert on sniping for the
392 P514, Expert report Patrick van der Weijden, p. 4.
393 P514, Expert report Patrick van der Weijden, p. 5. See also W-46, 16 Mar 2007, T. 3912 (closed session). Brig. Gen.
Fraser gave evidence that to rifles used by snipers are normally referred to as “sniper rifles”, David Fraser, 8 Feb 2007,
T. 1859; see also W-138, 1 Feb 2007, T. 1406.
394 David Fraser, 8 Feb 2007, T. 1859.
395 Patrick van der Weijden, 29 Mar 2007, T. 4294 – 4295; P514, Expert report Patrick van der Weijden, p. 6.
396 David Fraser, 8 Feb 2007, T. 1860.
397 Rupert Smith, 7 Mar 2007, T. 3318 – 3319. See also W-46, 16 Mar 2007, T. 3912 (closed session).
398 P514, Expert report Patrick van der Weijden, p. 58.
399 Patrick van der Weijden, 29 Mar 2007, T. 4311 – 4318.
400 P514, Expert report Patrick van der Weijden, p. 58. See also Ivan Stamenov, 22 Aug 2007, T. 9023.
401 P514, Expert report Patrick van der Weijden, p. 58.
402 P514, Expert report Patrick van der Weijden, p. 58.
39
Case No IT-98-29/1-T 12 December 2007
Defence, confirmed the firing range for many of the guns discussed by Lt. Van der Weijden.403 Two
Defence witnesses put the maximum range at which one can use automatic weapons for precise
targeting at between 100 and 300 metres.404 When not used for precise targeting, the reported
ranges were between 1,000 and 2,000 metres.405 The Trial Chamber notes that both these witnesses
were SRK soldiers and did not testify to possessing special knowledge in relation to sniping.
3. Areas of Responsibility and Confrontation Lines – SRK and 1st Corps of the ABiH
111. The Trial Chamber heard several witnesses and received documentary evidence, such as
military maps from both Parties, pertaining to the areas of responsibility of the SRK and the ABiH.
The Trial Chamber notes that, with the exception of the confrontation line at [picasta Stijena, the
location of the confrontation lines in and around Sarajevo and the areas of responsibility of the two
armies were largely uncontested. In this respect, it is also noted that the Defence, in crossexamination
and during the presentation of its case, led evidence mostly pertaining to the hills and
elevations that were within the confrontation lines.
112. Overall, the SRK was responsible for a triangular zone in Central Bosnia around Sarajevo
between Vi{egrad, Kladanj and Igman.406 The area of responsibility of the SRK included the
following places: the south of Sarajevo, including Lukavica, Vraca, Grbavica, Zlatište, parts of
Dobrinja and the area up to Mount Trebevi,407 the hills south and south-west of Sarajevo,408 the
Rajlovac area in the north-west of Sarajevo towards Mrkovii, including [picasta Stijena, also
known as Sharpstone,409 the north-east of Sarajevo410 and the area of Pale.411 According to Maj.
Gen. Karaveli, the SRK had four main artillery positions in the hills surrounding Sarajevo from
which they could reach any part of town.412
403 D360, Expert report Ivan Stamenov, pp 5 - 10. The Trial Chamber notes that in his report, he did not list the effective
range for the M76 and the Dragunov sniping rifles.
404 T-48, 22 June 2007, T. 7170; Milan Mandi}, 4 July 2007, T. 7603.
405 T-48, 22 June 2007, T. 7170; Milan Mandi}, 4 July 2007, T. 7603.
406 W-156, P625, p. 8 (under seal); D59, Military map of Sarajevo area.
407 Stevan Veljovi, 30 May 2007, T. 5819 – 5821; Milorad Kati, 1 June 2007, T. 6032, 4 June 2007, T. 6071; Zoran
Trapara, 26 June 2007, T. 7321 – 7322; P740, Map marked by Stevan Veljovi; P789, Cut-out of military map of
Sarajevo; P194, Military map of Sarajevo; D59, Military map of Sarajevo area.
408 T-39, 21 June 2007, T. 6996 – 6997; P588, Expert report Richard Higgs, 28 August 1995, p. 14; P789, Cut-out of
military map of Sarajevo; P194, Military map of Sarajevo; D59, Military map of Sarajevo area.
409 Sini{a Krsman, 6 June 2007, T. 6294 – 6295; Goran Kovaevi, 13 June 2007, T. 6592 – 6593; T-9, 16 July 2007,
T. 8347, 8359 – 8360; D316, Map marked by T-9; P788, Military map of Sarajevo; D59, Military map of Sarajevo area;
D293, Map marked by T-37 (under seal).
410 Stevan Veljovi, 29 May 2007, T. 5744; Borislav Kovaevi, 10 July 2007, T. 7909 – 7910, 7931, 7962; P788,
Military map of Sarajevo; D59, Military map of Sarajevo area; P194, Military map of Sarajevo.
411 P788, Military map of Sarajevo; D59, Military map of Sarajevo area.
412 Vahid Karaveli, 27 Mar 2007, T. 4101 – 4105, 4108 – 4109; P502, Map of Sarajevo marked by Vahid Karaveli;
see also P802, Proposal by SRK Deputy Commander, 10 February 1994, p. 2; P504, Map of Sarajevo marked by Vahid
Karaveli; D59, Military map of the area of Sarajevo; P788, Military map of Sarajevo; P789, Military map of Sarajevo.
40
Case No IT-98-29/1-T 12 December 2007
113. The ABiH held the eastern part of the city of Sarajevo, including very densely-populated
parts of Sarajevo, such as the area of Stari Grad and Centar, part of Grbavica,413 and the southwestern
part of Sarajevo,414 Hrasnica, Sokolovi Kolonija, and Butmir,415 and the hills in the north
of Sarajevo.416
(a) Central Parts of Sarajevo: Grbavica, Marindvor, Hrasno, Novo Sarajevo and Elevations
114. Most of Grbavica was controlled by the SRK, but was surrounded on three sides by the
ABiH: Hrasno, part of Hrasno Hill in the West, the northern bank of the Miljacka River and Debelo
Brdo in the East were held by the ABiH.417 In the Grbavica area, the Miljacka River constituted the
northern confrontation line, with the ABiH north of the river and the SRK south of the river.418
According to Maj. Veljovi, the positions in Grbavica remained more or less unchanged during the
war.419
115. North of that area, Marindvor was ABiH-held territory.420 The separation line along the
Miljacka River was about 200 to 300 metres from the Holiday Inn, on the street named Zmaja od
Bosne, also known as ‘Sniper Alley’.421 The stretch of land opposite Grbavica, and between the
confrontation line and the Zmaja od Bosne, was quite heavily built and was controlled by the
ABiH.422
116. On the eastern confrontation line, in Grbavica, the area from Vrbanja Bridge towards the
Jewish cemetery up to the foot of Debelo Brdo was held by the SRK.423 The Jewish Cemetery is
413 W-12, 1 Mar 2007, T. 3042, 2 Mar 2007, T. 3065; P194, Military map of Sarajevo; D46, Map marked by David
Fraser; P500, Map marked by Vahid Karaveli. See also P588, Expert report Richard Higgs, 28 August 1995, p. 14.
414 Ismet Hadži, 5 Mar 2007, T. 3193 – 3194, 3196; P194, Military map of Sarajevo.
415 W-57, 17 Apr 2007, T. 4573 – 4574; T-2. 20 June 2007, T. 6959. See also infra, paras 899-900, 904.
416 P194, Military map of Sarajevo; D59, Military map of Sarajevo area.
417 David Harland, 15 Jan 2007, T. 369 – 370, P2, MT. 28631; W-12, 2 Mar 2007, T. 3066; Milan Mandilovi, 17 Jan
2007, T. 564; Slavica Livnjak, 23 Jan 2007, T. 860, 872; Luka Dragievi, 26 Mar 2007, T. 4012; Vaso Elez, 7 June
2007, T. 6324 – 6325; Mirza Sabljica, 19 Apr 2007, T. 4742, 4743; T-41, 18 July 2007, T. 8515 – 8516; D177, Map
marked by Milomir [oja; D197, Map marked by Milorad Kati; D200, Map of Sarajevo marked by Milorad Kati;
D215, Map marked by Vaso Elez; D264, Map marked by Radomir Visnji. See also Louis Fortin, 17 Jan 2007, T. 518.
418 David Fraser, 7 Feb 2007, T. 1774 – 1775, 8 Feb 2007, 1855; Slavica Livnjak, 23 Jan 2007, T. 860; W-54, 12 Feb
2007, T. 1967 – 1968; Vaso Elez, 6 June 2007, T. 6309, T. 6312 – 6313, 7 June 2007, T. 6352; W-118, 6 Feb 2007,
T. 1636; Milorad Kati, 5 June 2007, T. 6157 – 6158; W-35, 22 Jan 2007, T. 831 – 832; David Harland, P2,
MT. 28631; D215, Map marked by Vaso Elez; D218, Photograph marked by Vaso Elez; P201, Photograph marked by
David Fraser; P223, Photograph marked by Asam Butt.
419 Stevan Veljovi, 29 May 2007, T. 5734.
420 W-54, 12 Feb 2007, T. 1962 – 1963, 1970 – 1971, Asam Butt, 15 Feb 2007, T. 2251 – 2252; Afeza Karai, 30 Jan
2007, T. 1193; Milorad Kati, 4 June 2007, T. 6092; T-61, 9 July 2007, T. 7838; D68, Photograph marked by Asam
Butt; D49, Map marked by David Fraser; D79, Photograph marked by John Jordan; D218, Photograph marked by Vaso
Elez.
421 Alen Gievi, 5 Feb 2007, T. 1558 – 1559, 1561, 1569; P163, p. 2; P165, Map marked by Alen Gievi; P166,
Photograph marked by Alen Gievi. Cf. Slavica Livnjak, 23 Jan 2007, T. 860; P95, p. 3. See also infra, Section
II.E.3.(a)(i) Public Transport and II.E.3.(a)(ii) Marindvor and Zmaja od Bosne, for more information on ‘Sniper Alley’.
422 David Fraser, 8 Feb 2007, T. 1867; D49, Map marked by David Fraser.
423 Stevan Veljovi, 30 May 2007, T. 5858, 5860 – 5861; Vaso Elez, 6 June 2007, T. 6306, 6311–6312; D218,
Photograph marked by Vaso Elez.
41
Case No IT-98-29/1-T 12 December 2007
located on the slopes of Debelo Brdo, towards the south-east of Grbavica.424 Witnesses testified that
the area of the Jewish Cemetery was held by the SRK throughout the war.425 However, Maj.
Veljovi and Sanjin Hasanefendi, a BiH police officer, testified that the SRK did not hold the
Jewish Cemetery completely, but only the part facing Grbavica.426 T-7, who lived inside the
confrontation lines before the Indictment period, testified that both armies’ trenches were about
“one block of flats or one wall” apart.427
(b) South-East: Debelo Brdo, Zlatište, olina Kapa, Mount Trebevi
117. The hills Debelo Brdo and olina Kapa were at the foot of Mount Trebevi}.428 olina Kapa
was one of the hills or ridges belonging to Mount Trebevi.429 Zlatište Hill was to the west of
olina Kapa and overlooked Debelo Brdo.430
118. Debelo Brdo, from where Grbavica and the Jewish Cemetery were visible, was held by the
ABiH.431 olina Kapa was held by the ABiH.432 Both Debelo Brdo and olina Kapa overlooked
Sarajevo.433 Debelo Brdo dominated Marindvor, Grbavica and the Jewish Cemetery and provided a
clear view of, for example, Zmaja od Bosne.434 The SRK held Mount Trebevi and Vidikovac, at
the peak of Mount Trebevi.435 The SRK held the area south of Debelo Brdo and the Zlatište Hill,
424 Ghulam Mohammed Mohatarem, 19 Jan 2007, T. 747.
425 Milan Mandilovi, 17 Jan 2007, T. 564; Afeza Karai}, 29 Jan 2007, T. 1184 – 1185.
426 Stevan Veljovi, 30 May 2007, T. 5823; Sanjin Hasanefendi, 16 Feb 2007, T. 2382 – 2385. See also Mirza
Sabljica, 19 Apr 2007, T. 4743 – 4744; Vaso Elez, 6 June 2007, T. 6306, 7 June 2007, T. 6324 – 6325.
427 T-7, 18 June 2007, T. 6801 – 6802.
428 W-12, 2 Mar 2007, T. 3066; Predrag Trapara, 27 June 2007, T. 7398; P752, Photograph of Sarajevo overlooking
Debelo Brdo; P791, Map marked by Siniša Krman.
429 Bakir Nakaš, 29 Jan 2007, T. 1126.
430 Stevan Veljovi, 24 May 2007, T. 5726, 30 May 2007, T. 5862; D328, Photograph marked by T-41; D208,
Photograph marked by Dragan Simi}; D310, Map marked by Momilo Gojkovi.
431 W-12, 1 Mar 2007, T. 3042; Bakir Nakaš, 29 Jan 2007, T. 1125 – 1126; David Fraser, 7 Feb 2007, T. 1767, 8 Feb,
T. 1846–1847; Asam Butt, 15 Feb 2007, T. 2234; Mirza Sabljica, 19 Apr 2007, T. 4739; Stevan Veljovi}, 30 May
2007, T. 5852, 5858; See also Stevan Veljovi}, 24 May 2007, T. 5726, 29 May 2007, T. 5734; Vaso Elez, 7 June 2007,
T. 6325; Milorad Kati}, 1 June 2007, T. 6011, 4 June 2007, T. 6071–6072, 6074–6075; Dragan Simi, 5 June 2007,
T. 6185; Ghulam Muhammad Mohatarem, 19 Jan 2007, T. 746; Zoran Trapara, 26 June 2006, T. 7301–7302; T-41,
18 July 2007, T. 8516; D328, Photograph marked by T-41; P209, Map marked by Thomas Knustad; P742, Map marked
by Stevan Veljovi}.
432 W-12, 1 Mar 2007, T. 3039, 3042; Huso Palo, 5 Feb 2007, T. 1545–1546; Thomas Knustad, 13 Feb 2007, T. 2025 –
2026; Vahid Karaveli}, 28 Mar 2007, T. 4228; Zoran Trapara, 26 June 2006, T. 7301, 7302; Predrag Trapara, 27 June
2007, T. 7373 – 7374. Cf. Mirza Sabljica, 19 Apr 2007, T. 4739; Kemal Buo, 2 Feb 2007, T. 1509 – 1510.
433 W-138, 1 Feb 2007, T. 1432–1433; Thomas Knustad, 13 Feb 2007, T. 2025 – 2026.
434 David Fraser, 8 Feb, T. 1847; W-138, 1 Feb 2007, T. 1431; Sanjin Hasanefendi}, 16 Feb 2007, T. 2384; See also
Sanjin Hasanefendi 16 Feb 2007, T. 2386 – 2387; Milan Mandilovi}, 17 Jan 2007, T. 604 – 605; Stevan Veljovi,
30 May 2007, T. 5863; Milorad Kati, 4 June 2007, T. 6075; D70, Aerial photograph marked by Sanjin Hasanefendi}
showing Debelo Brdo, Hrasno and Jewish Cemetery on 28 February 2007 (“Photograph marked by Sanjin
Hasandefendi}).
435 Stevan Veljovi, 24 May 2007, T. 5720, 5725; Zoran Trapara, 26 June 2006, T. 7301–7302; Andrey Demurenko,
5 July 2007, T. 7728 – 7729; Predrag Trapara, 27 June 2007, T. 7373; W-12, 2 Mar 2007, T. 3068 – 3069.
42
Case No IT-98-29/1-T 12 December 2007
overlooking the city.436 The stretch of land between Zlatište and Debelo Brdo was “a buffer zone, a
no man’s land”.437
(c) South-West: Dobrinja, Nearii, Mojmilo Hill, Ilidža, Lukavica, Hrasnica, Sokolovii,
Mount Igman
119. The settlement of Dobrinja was split between the warring factions.438 Ismet Had`i} testified
that the settlement had 45,000 inhabitants before the war and that the Bosnian Muslim side had
27,000 inhabitants after it was split.439 There were two confrontation lines, one running through
Dobrinja V and the airport settlement towards Sarajevo Airport, and another one in the eastern part
between Dobrinja IV and Osloboenja.440 According to Ismet Hadži, the separation line in the
airport settlement was “a road five wide.”441 In Dobrinja IV, the separation line was the Indira
Gandhi Street. SRK soldiers were in high-rise buildings and opposite the Orthodox Church that was
on SRK-held territory.442 Dobrinja II and Dobrinja III were controlled by the ABiH.443 The ABiH
Dobrinja Brigade consisted of approximately 2,200 troops.444
120. Ismet Hadži testified that Dobrinja was encircled by the Bosnian Serb forces, and that the
SRK controlled 80 per cent of all movement in Dobrinja.445 However, the complete encirclement of
Dobrinja is not supported by any other evidence. Ismet Hadži testified that inside the Dobrinja
settlement communication trenches for civilian purposes linked various parts of the settlement but
that there were no barracks or places where battalions or companies were billeted.446 He denied that
there were firing positions in civilian structures but testified that only abandoned and burned
436 David Fraser, 7 Feb 2007, T. 1767, 8 Feb, T. 1846 – 1848; Predrag Trapara, 27 June 2007, T. 7374; Stevan Veljovi,
30 May 2007, T. 5852, 5858; Milorad Kati, 4 June 2007, T. 6074 – 6075, T. 6079–6080, 1 June 2007, T. 6011;
Radomir Visnji, 25 June 2007, T. 7235 – 7236; P209, Map marked by Thomas Knustad; D208, Photograph marked by
Dragan Simi.
437 Dragan Simi, 5 June 2007, T. 6185; D210, Photograph marked by Dragan Simi.
438 W-28, 22 Feb 2007, T. 2762; Slavica Livnjak, 23 Jan 2007, T. 873.
439 Ismet Hadži, 5 Mar 2007, T. 3189, 6 Mar 2007, T. 3212. The Trial Chamber notes that, although Ismet Had`i} was
commander of the ABiH 155th Brigade during the Indictment period, it received no information from the parties about
his rank and will therefore refer to him by name, omitting his rank hereinafter.
440 Ismet Hadži, 6 Mar 2007, T. 3208 – 3209; Slavica Livnjak, 23 Jan 2007, T. 873; Enes Jašarevi, 1 Mar 2007,
T. 3020; Stevan Veljovi, 29 May 2007, T. 5734; Luka Jovi, 18 June 2007, T. 6732 – 6733;W-138, 1 Feb 2007,
T. 1412 – 1414; David Harland, P2, MT. 28631; P328, Map marked by Ismet Hadži; P330, Map marked by Ismet
Hadži; D276, Map marked by Predrag Trapara; D283, Map marked by Rade Ivanovi; see also Ne|eljko U~ur, 26 July
2007, T. 8911 – 8912; D323, Photograph of apartment building in Dobrinja.
441 Ismet Hadži, 6 Mar 2007, T. 3213.
442 Neeljko U~ur, 26 July 2007, T. 8919 – 8923; D235, Map marked by Luka Jovi. See also Luka Jovi, 14 June
2007, T. 6705, June 2007, T. 6730 – 6731; W-138, 1 Feb 2007, T. 1412; D237, Diagram marked by Luka Jovi}.
443 Ismet Hadži, 6 Mar 2007, T. 3209 – 3210; Luka Jovi, 18 June 2007, T. 6730; P330, Map of Dobrinja marked by
Ismet Hadži; P333, Photograph marked by Ismet Hadži.
444 Isment Had`i}, 5 Mar 2007, T. 3191.
445 Ismet Hadži, 5 Mar 2007, T. 3195, 6 Mar 2007, T. 3234. See also P329, Map marked by Ismet Hadži.
446 Ismet Hadži, 6 Mar 2007, T. 3219.
43
Case No IT-98-29/1-T 12 December 2007
buildings on the edges of Dobrinja neighbourhood were used by the military.447 He further testified
that the ABiH trenches on Mojmilo Hill, dug in 1995, avoided all residential buildings.448 T-31
testified that he saw armed civilians in Dobrinja but that, more often, he saw soldiers on their way
to their positions.449
121. Nearii, north of the airport, was controlled by the SRK, but it was bordered by ABiH-held
territory from three sides: Alipašino Polje, Mojmilo and Stup.450 Stup Hill to the north-west of
Nearii, was held by the ABiH,451 and so were Butmir and Kotorac, located south of the runway of
the airport.452
122. During the Indictment period, the largest part of Mojmilo Hill was held by the ABiH.453 The
eastern side of Mojmilo Hill and the area from there up to Vraca were under the control of the
SRK.454 The SRK was on the slopes facing Nearii in the west.455 Bosnian Serb forces held lines at
the top of the hills and, at the southern foot of Mojmilo Hill, they occupied one of the barracks in
Lukavica.456 Predrag Trapara, a soldier in the 1st Sarajevo Mechanised Brigade, testified that from
their positions at Mojmilo Hill, the ABiH could control the area of Lukavica, all the way up to
Toplik, as well as Dobrinja IV, the “Stari Celovac” settlement and Nearii.457
123. The SRK held Ilidža.458 Milomir [oja, an electrical engineer who worked at the
Energoinvest Company during the Indictment period, testified that most of the confrontation line in
Ilidža was very close to residential areas.459 Further to the north-west of Ilid`a, Osijek, Butila and
447 Ismet Hadži, 6 Mar 2007, T. 3266 – 3267. See also, Ismet Hadži, 6 Mar 2007, T. 3217; Dražen Maunaga, 12 June
2007, T. 6486.
448 Ismet Hadži, 6 Mar 2007, T. 3266 – 3267.
449 T-31, 14 June 2007, T. 6674 – 6675.
450 David Harland, 15 Jan 2007, T. 370 – 371; D177, Map marked by Milomir [oja; D248, Map marked by T-2. See
also, Louis Fortin, 17 Jan 2007, T. 518; T-2, 20 June 2007, T. 6915; Luka Dragievi, 26 Mar 2007, T. 4012; T-48,
22 June 2007, T. 7135 – 7136, 7186; W-62, 23 Jan 2007, T. 892–893; D260, Map marked by T-48; D278, Map marked
by T-52.
451 Milan Peji, 21 June 2007, T. 7036; Predrag Trapara, 27 June 2007, T. 7373; Vlastimir Glavaš, 24 July 2007,
T. 8746; Mirza Sabljica, 19 Apr 2007, T. 4741; D110, Order by Rizvo Pleh, dated 20 May 1995.
452 Azra [isi, 27 Feb 2007, T. 2860; Dražen Maunaga, 12 June 2007, T. 6486; P104, Street map of Sarajevo.
453 Ismet Hadži, 6 Mar 2007, T. 3213 – 3215, 3263 – 3264; Milorad Kati, 31 May 2007, T. 5975 – 5976; Vahid
Karaveli}, 28 Mar, T. 4228; Kemal Buo, 2 Feb 2007, T. 1510; Milan Peji, 21 June 2007, T. 7035, 7051 – 7052; T-53,
7 June 2007, T. 6355 – 6356; Dražen Maunaga, 12 June 2007, T. 6481; Predrag Trapara, 27 June 2007, T. 7374, 7413;
Mirza Sabljica, 19 Apr 2007, T. 4739; Louis Fortin, 17 Jan 2007, T. 521; David Fraser, 7 Feb 2007, T. 1770, 8 Feb
2007, T. 1848; Zoran Trapara, 26 June 2006, T. 7302; Goran Kovaevi, 13 June 2007, T. 6605; Luka Jovi, 14 June
2007, T. 6700; Stjepan Djuki, 3 July 2007, T. 7509; Borislav Kovaevi, 9 July 2007, T. 7899; Stevan Veljovi,
24 May 2007, T. 5720; P194, Military map of Sarajevo.
454 Ismet Hadži, 6 Mar 2007, T. 3263–3264; D59, Military map of Sarajevo area.
455 Dražen Maunaga, 12 June 2007, T. 6481, 6514; D59, Military map of Sarajevo area.
456 Ismet Hadži, 6 Mar 2007, T. 3264; Milan Mandi, 3 July 2007, T. 7557–7558; Stevan Veljovi, 30 May 2007,
T. 5827; D207, Map marked by Dragan Simi. See also, para. 68.
457 Predrag Trapara, 27 June 2007, T. 7378.
458 Hussain Ijaz, 27 Apr 2007, T. 5403; Luka Dragievi, 26 Mar 2007, T. 4012; Per Anton Brennskag, 8 Mar 2007,
T. 3452–3453; P347, Map marked by Per Anton Brennskag.
459 Milomir Šoja, 25 Apr 2007, T. 5162.
44
Case No IT-98-29/1-T 12 December 2007
Blažuj were also under the control of the SRK.460 Evidence shows that there were mortars, air bomb
launchers and air bombs in these locations.461 Sokolovii, also known as Sokolovi Kolonija, south
of Ilidža, was held by the ABiH.462 The SRK also held territory between Ilidža and Lukavica.463
124. The SRK held Lukavica, which is five or six kilometres east of Ilid`a.464 W-57, a BiH police
officer, testified that Golo Brdo, south-east of Lukavica was held by the SRK. He said that it
offered a “perfect view” of the whole area under ABiH control, the “free territory”, Hrasnica,
Butmir and Sokolovii, and that one could “observe and immediately fire upon any military
movement or movement of pedestrians, civilians and vehicles”.465
125. Mount Igman overlooked the general area of Hrasnica and beyond.466 Mount Bjelašnica was
in the south-west and, according to Lt. Col. Fortin, also dominated the city.467 In 1994, the ABiH
controlled 80 per cent of Mount Igman.468 Poljane, an area on Mount Igman, was held by the
SRK.469 W-57 testified that from the part of Mount Igman controlled by the ABiH, there was a good
view of the surroundings of Ilidža, where there were areas under the control of both the SRK and
the ABiH.470 Maj. Veljovi testified that from its positions on Mount Igman, the ABiH was able to
control the Vojkovii and the Ilidža areas.471 Zoran Trapara, a soldier in the SRK 1st Sarajevo
Brigade, testified that the ABiH had “full control” over the SRK positions.472
(d) North-West: Sokolje Hill, Vogoša, Ilijaš, Žu~ Hill, Hum Hill
126. The confrontation line in the north-west of Sarajevo ran from the Miljacka River along the
railway tracks towards the north to the Rajlovac Barracks.473
127. The ABiH held Briješko Brdo, a little elevation of 100 metres, east of the tracks close to the
neighbourhood of Sokolje, which itself was a Bosnian Serb neighbourhood.474 Further north,
460 Milomir [oja, 25 Apr 2007, T. 5122; Siniša Krsman, 6 June 2007, T. 6281; Milomir Šoja, 25 Apr 2007, T. 5126.
461 Milomir [oja, 25Apr 2007, T. 5121 – 5126; P707, SRK report on artillery positions, 15 May 1995.
462 Goran Kovaevi, 13 June 2007, T. 6605.
463 David Harland, 15 Jan 2007, T. 371; D59, Military map of Sarajevo area.
464 Thorbjorn Overgard, 19 Jan 2007, T. 658; David Fraser, 8 Feb 2007, T. 1843; David Harland, 15 Jan 2007, T. 371;
D45, Map marked by David Fraser; D59, Military map of Sarajevo area.
465 W-57, 17 Apr 2007, T. 4572. See also Milorad Košarac, 26 July 2007, T. 8879.
466 W-138, 1 Feb 2007, T. 1435 – 1436.
467 Louis Fortin, 17 Jan 2007, T. 522.
468 Stevan Veljovi, 29 May 2007, T. 5737, 5739; Milan Peji, 21 June 2007, T. 7052; Borislav Kovaevi, 9 July 2007,
T. 7899; Ljuban Mrkovi, 12 July 2007, T. 8141, 8142. See also Ronald Eimers, P585, p. 5.
469 Milomir [oja, 25 Apr 2007, T. 5173.
470 W-57, 17 Apr 2007, T. 4573 – 4574.
471 Stevan Veljovi, 29 May 2007, T. 5738.
472 Zoran Trapara, 26 June 2007, T. 7307.
473 Siniša Krsman, 6 June 2007, T. 6241; T-2, 20 June 2007, T. 6931; Stevan Veljovi, 24 May 2007, T. 5724 – 5725;
D211, Map marked by Siniša Krsman.
474 W-138, 1 Feb 2007, T. 1435; Siniša Krsman, 6 June 2007, T. 6242; Bakir Nakaš, 29 Jan 2007, T. 1127.
45
Case No IT-98-29/1-T 12 December 2007
Sokolje Hill was also controlled by the ABiH.475 Capt. 1st Class Mrkovi, a SRK security officer
and deployed at the aeronautical institute in Rajlovac, testified that the ABiH could control SRKheld
Rajlovac and the Rajlovac Barracks, at the foot of Sokolje and Žu Hills.476
128. Vogoša and the area to the west and north-west of the confrontation line were controlled by
the SRK during the Indictment period.477 The Pretis factory in Vogoša was under the control of the
SRK.478 Ilijaš was also controlled by the SRK.479 Borislav Kovaevi, a member of the SRK Ilija{
Brigade, testified that Breza was within the territory of the ABiH. The positions of the ABiH were
on the boundary between Breza and Ilijaš, and remained there until the end of the war.480
129. The ABiH controlled Žu~ Hill, which overlooked Vogoša.481 ABiH howitzers were
positioned close to @u~ Hill.482 Ismet Hadži testified that Bosnian Serb forces were at the outskirts
of a settlement at the foot of Žu~ Hill and that, throughout the war, the ABiH tried to push them
away from the settlement.483 The SRK held the north-western slopes of Žu~ Hill towards Vogoša
and Rajlovac.484 Maj. Veljovi testified that Žu Hill was “a very strong feature” which controlled
“the entire area ... of the south-western front”.485
130. Hum Hill was held by the ABiH until the end of the war.486 Lt. Col. Butt, who was the team
leader of an UNMO team on Mali Hum, testified that the slopes towards the city from Žu Hill and
Mali Hum were under the control of the ABiH.487 He denied the Defence suggestion that units of
475 Zoran Trapara, 26 June 2006, T. 7302; T-37, 10 July 2007, T. 7970; Predrag Trapara, 27 June 2007, T. 7373; Ljuban
Mrkovi, 12 July 2007, T. 8141; D302, Map marked by Ljuban Mrkovi.
476 Ljuban Mrkovi, 12 July 2007, T. 8139, 8141; Luka Dragievi, 26 Mar 2007, T. 4012; D302, Map marked by
Ljuban Mrkovi.
477 Ronald Eimers, 20 Apr 2007, T. 4795; Milomir Šoja, 25 Apr 2007, T. 5126; Bakir Nakaš, 29 Jan 2007, T. 1127;
Luka Dragievi, 26 Mar 2007, T. 4012; Milomir [oja, 25 Apr 2007, T. 5126; P194, Military map of Sarajevo; D59,
Military map of Sarajevo area.
478 T-53, 11 June 2007, T. 6440 – 6442; David Harland, 15 Jan 2007, T. 368; D226, Map marked by Goran Kovaevi.
479 Zoran Samardži, 13 June 2007, T. 6632; Milomir [oja, 24 Apr 2007, T. 5125 – 5126.
480 Borislav Kovaevi, 9 July 2007, T. 7904–7905, 8034; D59, Military map of Sarajevo area.
481 David Harland, 15 Jan 2007, T. 367 – 369; David Fraser, 7 Feb 2007, T. 1770, 8 Feb 2007, T. 1853, 1854; Mirza
Sabljica, 19 Apr 2007, T. 4739; W-138, 1 Feb 2007, T. 1434 – 1435; Ana Gotovac, 3 Apr 2007, T. 4458; Stevan
Veljovi, 24 May 2007, T. 5724, 29 May 2007, T. 5731 – 5732; Milan Peji, 21 June 2007, T. 7035, 7051 – 7052;
Predrag Trapara, 27 June 2007, T. 7373 – 7374; T-37, 10 July 2007, T.7967 – 7970; T-9, 16 July 2007, T. 8343;
Dražen Maunaga, 12 June 2007, T. 6496; Borislav Kovaevi, 9 July 2007, T. 7899; Ljuban Mrkovi, 12 July 2007,
T. 8141; Predrag Carki, 19 June 2007, T. 6870; D47, Military map marked by David Fraser showing the hills Žu and
Hum (“Military map marked by David Fraser”).
482 David Fraser, 8 Feb 2007, T. 1853; D47, Military map marked by David Fraser.
483 Ismet Hadži, 6 Mar 2007, T. 3271; Sanjin Hasanefendi, 16 Feb 2007, T. 2393.
484 Milan Peji, 21 June 2007, T. 7052. See also T-37, 10 July 2007, T. 7989.
485 Stevan Veljovi, 24 May 2007, T. 5723.
486 Mirza Sabljica, 19 Apr 2007, T. 4739; Sanjin Hasanefendi, 16 Feb 2007, T. 2392; Harry Konings, 13 Mar 2007,
T. 3613; Zoran Trapara, 26 June 2006, T. 7302; Predrag Trapara, 27 June 2007, T. 7373, 7395; T-9, 16 July 2007,
T. 8347; Stevan Veljovi, 24 May 2007, T. 5724; Dražen Maunaga, 12 June 2007, T. 6496; Predrag Carki, 19 June
2007, T. 6870 – 6871; Milan Peji, 21 June 2007, T. 7036; Stjepan Ðuki, 3 July 2007, T. 7509; Borislav Kovaevi,
9 July 2007, T. 7899.
487 Asam Butt, 14 Feb 2007, T. 2159, 15 Feb 2007, T. 2224.
46
Case No IT-98-29/1-T 12 December 2007
the ABiH were on the entire hill Veliki Hum.488 From Mali Hum, Lt. Col. Butt added, one had an
excellent view of Sarajevo, especially of Skenderija, the Jewish Cemetery, Vrbanja Bridge, the
Marshal Tito Barracks and Debelo Brdo.489
(e) North-East: Sedrenik, Špicasta Stijena, Grdonj, Hreša
131. Sedrenik was a settlement in the north-east of Sarajevo, and was held by the ABiH.490 The
confrontation line in the Sedrenik area ran across the hills.491 [picasta Stijena, or Sharpstone, was a
ridge located about 300 to 500 metres north-east of Grdonj.492 Vlajko Bo`i, Assistant to the Chief
of Staff of Operations in the SRK 3rd Sarajevo Brigade, testified that [picasta Stijena was about 60
metres high, 200 metres long and that the top was about 20 metres wide.493 The Defence argued that
the inhabitants of the area did not know or use the name [picasta Stijena during the conflict. The
Trial Chamber does not need to pronounce on the name of the ridge. In this Judgement, it will use
the name that was most used by witnesses, which is [picasta Stijena. Grdonj was the broader
feature near [picasta Stijena.494 The area was forested, but, during the conflict, some trees were
destroyed.495
132. The Prosecution contends that “there is no doubt whatsoever that the SRK controlled the
[picasta Stijena ridge line and that they would fire down into the village of Sedrenik, killing and
injuring civilians.”496 Witnesses for the Prosecution and the Defence testified that [picasta Stijena
was held by the SRK but also testified that the confrontation lines between both warring factions
were close.497
133. Defence witness Maj. Veljovi} testified that the ABiH had full control of [picasta Stijena,
and that the SRK “did not have a single position on the edge of [picasta Stijena”.498 He testified
that the SRK was 300 metres behind the ABiH, on the other side of the ridge, 100 metres away
488 Asam Butt, 15 Feb 2007, T. 2223.
489 Asam Butt, 15 Feb 2007, T. 2223, 2224. See also Milorad Kati, 1 June 2007, T. 6017.
490 Vlajko Bozi, 17 July 2007, T. 8422. Cf. Mirza Sabljica, 19 Apr 2007, T. 4739.
491 Harry Konings, 13 Mar 2007, T. 3611 – 3613; D59, Military map of Sarajevo area.
492 Vahid Karaveli, 27 Mar 2007, T. 4089, 4094 – 4096; Nedžib Ðozo, 14 Mar, T. 3684, 3725; D123, Photograph
marked by Nedžib Ðozo; P171, 360 Photograph; P366, Photograph marked by Nedžib Ðozo. See also Derviša
Selmanovi, 5 Feb 2007, T. 1594, 1606 – 1607.
493 Vlajko Bozi, 17 July 2007, T. 8415, 8459–8460. The Trial Chamber was not provided with information as to the
rank of Vlajko Bozi} during the Indictment period.
494 Stevan Veljovi, 29 May 2007, T. 5745; D318, Photograph marked by Vlajko Bozi; D317, Photograph marked by
T-9.
495 T-15, 13 July 2007, T. 8333, 8334.
496 Prosecution Closing Brief, para. 155.
497 David Fraser, 8 Feb 2007, T. 1849; Thomas Knustad, 13 Feb 2007, T. 2046; Nedžib Ðozo, 14 Mar 2007, T. 3684,
3685; Vahid Karaveli, 27 Mar, T. 4093; Harry Konings, 13 Mar, T. 3613; Siniša Krsman, 6 June 2007, T. 6295, 6299;
Anelko Dragaš, 22 June 2007, T. 7078.
498 Stevan Veljovi, 30 May 2007, T. 5865 – 5868, 5875, 5891 – 5892.
47
Case No IT-98-29/1-T 12 December 2007
from the cliff.499 Vlajko Bo`i testified that the SRK positions were at least 50 metres behind the
ridge and that the ABiH was some 150 metres away from the ridge.500 According to Vlajko Bo`i
and T-15, a police officer with the RS police, it was impossible to set up an observation post or a
position on the ridge because the terrain was said to have been mined in 1992 and it was exposed to
cross-fire from both sides.501 T-15 also testified that he and his fellow soldiers never went up on the
ridge to fire onto Sedrenik, except during combat activities.502 Both T-15 and Anelko Dragaš, a
soldier of the 3rd Sarajevo Brigade during the Indictment period, testified that there were no SRK
snipers,503 but Prosecution witnesses, such as Nedžib Ðozo, and Tarik @uni}, a civilian who lived in
Sedrenik at the time, testified that [picasta Stijena was a well-known SRK sniper location.504
According to Lt. Van der Weijden, traces of the Bosnian Serb-held trenches were still visible on the
ridgeline in November 2006.505
134. The Defence also focused on whether there were ABiH positions on Grdonj Hill.506 This
was confirmed by several witnesses.507 Maj. Gen. Karaveli testified that the ABiH had a
communication trench on the slopes of Grdonj which ran from the very last settlement on the slopes
to the houses close to the very top. The ABiH had one-third of the slope of Grdonj under its control,
namely, the slope of Grdonj above Sedrenik, facing the town. The rest was held by the SRK.508
Nežib Ðozo testified that the ABiH was not directly at the foot of [picasta Stijena, but had trenches
to the left and to the right towards Grdonj. The ABiH trenches were facing [picasta Stijena and the
general area towards Barica in the north.509
135. According to Maj. Gen. Karaveli}, one could observe and cover almost all of the
municipalities of Stari Grad and Centar from Grdonj and [picasta Stijena, which also provided a
499 Stevan Veljovi, 30 May 2007, T. 5865 – 5867, 5875, 5891, 5892; T-15, 13 July 2007, T. 8304, 8306, 8314, 8317 –
8318; Anelko Dragaš, 22 June 2007, T. 7083, 7112; P743, Photograph marked by Stevan Veljovi; D312, Photograph
marked by T-15. See also D256, Photograph marked by Anelko Dragaš; D257, Photograph marked by Anelko
Dragaš; D258, Photograph marked by Anelko Dragaš.
500 Vlajko Bozi, 17 July 2007, T. 8415, 8450 – 8454.
501 Vlajko Bozi, 17 July 2007, T. 8455 – 8457, 8459 – 8460, 8463 – 8465; T-15, 13 July 2007, T. 8305, 8306, 8320 –
8323, 8330 – 8331, 8336. See also Anelko Dragaš, 22 June 2007, T. 7083, 7112.
502 T-15, 13 July 2007, T. 8332 – 8333.
503 Anelko Dragaš, 22 June 2007, T. 7072; T-15, 13 July 2007, T. 8332 – 8333.
504 Nedžib Ðozo, 14 Mar 2007, T. 3702, 3704; Tarik Zuni}, 7 Feb 2007, T. 1738 – 1739; P366, Photograph marked by
Nedžib Ðozo; D123, Photograph marked by Nedžib Ðozo; D320, Photograph marked by Vlajko Bosic. See also infra,
para. 232 and II.E.4(b)(ii) Sniping of Targets in Sedrenik.
505 P514, Expert report Patrick van der Weijden, pp 41 - 43.
506 Defence Final Brief, para. 51.
507 Nedžib Ðozo, 14 Mar, T. 3699, 3725 – 3726; Mirza Sabljica, 19 Apr 2007, T. 4739; D123, Photograph marked by
Nedžib Ðozo; see also Stevan Veljovi, 29 May 2007, T. 5731; Zoran Trapara, 26 June 2006, T. 7301 – 7302; Predrag
Trapara, 27 June 2007, T. 7373; D46, Military map marked by David Fraser.
508 Vahid Karaveli, 28 Mar 2007, T. 4228.
509 Nedžib Ðozo, 14 Mar 2007, T. 3688–3689; Anelko Dragaš, 22 June 2007, T. 7090 – 7091; Vlajko Bozi, 17 July
2007, T. 8424; D257, Photograph marked by Anelko Dragaš; D258, Photograph marked by Anelko Dragaš.
48
Case No IT-98-29/1-T 12 December 2007
good view on Sedrenik.510 The terrain was very steep, and this allowed for a solid defence.511
Vlajko Bo`i testified that from Grdonj, one could control the area to the north of Grdonj, which
included Mrkovii, and Pionirska Dolina, as well as the area south of the hill, including Sedrenik.512
136. Anelko Dragaš testified that the SRK controlled the area from Poljine to the cross-roads
called Smreka behind [picasta Stijena.513 He further testified that the SRK positions were just
below Grdonj Hill.514 He explained that the SRK was at a geographical feature called Jagomir at the
foot of Grdonj Hill, in the area of Pionirska Dolina.515 Hreša was further in the east of Sarajevo and
a main SRK firing position was located there.516
Findings
137. The evidence shows that the confrontation lines were in the hills surrounding Sarajevo, but
they also ran through the central parts of Sarajevo, in particular, in the Grbavica area and around
Ne|ari}i and Ilid`a, which were very densely-populated areas.517
138. In general, the floor of the Sarajevo valley was controlled by the ABiH, while the majority
of the surrounding mountains were controlled by the SRK.518 Evidence shows that the ABiH also
controlled several hills and elevations close to the central parts of Sarajevo, such as Debelo Brdo,
olina Kapa, Mojmilo Hill, Žu Hill and Hum Hill. However, most of these hills, or elevations, in
particular, those on the confrontation lines in the south and in the south-east, were overlooked by
territory controlled by the SRK.519 The ABiH held most of the Igman area in the south-west.520
510 Vahid Karaveli, 27 Mar 2007, T. 4090; 4093 – 4096; Nedžib Ðozo, 14 Mar, T. 3725; D123, Photograph marked by
Nedžib Ðozo; P366, Photograph marked by Nedžib Ðozo; see also Vlajko Bozi, 17 July 2007, T. 8452; D46, Military
map marked by David Fraser.
511 Vahid Karaveli, 27 Mar 2007, T. 4093.
512 Vlajko Bo`i, 17 July 2007, T. 8422; Stevan Veljovi, 29 May 2007, T. 5745; Anelko Dragaš, 22 June 2007,
T. 7080 – 7082.
513 Anelko Dragaš, 22 June 2007, T. 7076–7077; Milorad Košarac, 26 July 2007, T. 8885. See also Vlajko Bozi,
17 July 2007, T. 8450.
514 Anelko Dragaš, 22 June 2007, T. 7077; P743, Photograph marked by Stevan Veljovi.
515 Anelko Dragaš, 22 June 2007, T. 7059, 7107; D255, Map marked by Anelko Dragaš.
516 Predrag Trapara, 27 June 2007, T. 7373; Vahid Karaveli, 27 Mar 2007, T. 4101 – 4102, 4108 – 4109; P502,
Military map of Sarajevo marked by Vahid Karaveli}.
517 Luka Dragievi, 26 Mar 2007, T. 4012, 4044; Thomas Knustad, 13 Feb 2007, T. 2045–2046; D59, Military map of
Sarajevo area.
518 David Harland, 15 Jan 2007, T. 367 – 369, P1, MT. 26962 – 26963; Cornelis Hendrik Nicolai, 24 Jan 2007, T. 1000;
Kemal Buo, 2 Feb 2007, T. 1509; Richard Higgs, 24 Apr 2007, T. 5055; Mirza Sabljica, 19 Apr 2007, T. 4738 – 4739;
Slavica Livnjak, 23 Jan 2007, T. 860; John Jordan, 21 Feb 2007, T. 2631; P194, Military map of Sarajevo. See also,
e.g., Harry Konings, 13 Mar, T. 3612; Zoran Trapara, 26 June 2006, T. 7301 – 7302; D285, Map marked by Andrey
Demurenko; but cf. Stevan Veljovi, 30 May 2007, T. 5851, 5852, 5864.
519 Predrag Trapara, 27 June 2007, T. 7397 – 7398.
520 See supra, para. 125.
49
Case No IT-98-29/1-T 12 December 2007
139. While the ABiH was in an area within the confrontation lines, the SRK had firing positions
all around Sarajevo.521 Sarajevo was thus encircled by the SRK.522 This situation lasted throughout
the Indictment period.523
140. The Trial Chamber concludes from an examination of the evidence as a whole that the
[picasta Stijena ridge was held by the SRK, and the ABiH was located at the foot of the hill. It does
so on the basis of the evidence of a vast number of witnesses, some of whom testified for the
Defence. Lt. Com. Knustad, a Norwegian UNMO, testified that he saw a modified air bomb being
fired from [picasta Stijena. Other witnesses include Maj. Gen. Karaveli}, Lt. Col. Harry Konings
and Sini{a Krsman. There are two pieces of evidence that might be construed as support for the
Defence position that the ridge was held by the ABiH. First, Maj. Veljovi} testified that the SRK
were 200 to 300 metres behind the ridge line. Second, two witnesses, An|elko Draga{ and T-15
testified that, during the effort of the ABiH to break the siege in 1994 and 1995, the ridge was twice
held by the ABiH for a short time. However, their testimony is that within a period of about two
days, the ridge was retaken by the SRK. The Trial Chamber does not see the first piece of evidence
as disturbing its finding, because, even if the SRK were not on the top of the ridge, but 200 to 300
metres behind, they would still be in a position to access the ridge and utilise it as a firing position.
The second item of evidence does not contradict the finding since it indicates that the ridge was
retaken by the SRK.
C. Sarajevo 1992 to August 1994
141. The Trial Chamber sees the evidence led by the Prosecution and Defence on the pre-
Indictment period as background evidence with varying degrees of importance for the issues in the
case.
142. Insofar as the Prosecution is concerned, the evidence is relied on to show that a “campaign
of shelling and sniping” existed at that time and that the Accused was aware of it and, more
significantly, that he continued it during the Indictment period. The outbreak of the conflict in
Sarajevo and the period of between 10 September 1992 and 10 August 1994 were adjudicated upon
in the Gali} case. In this regard, the Trial Chamber follows the Appeals Chamber decision that
521 W-138, 1 Febr 2007, T. 1433. See also Milosav Gagovi, 23 July 2007, T. 8717 – 8719; Ronald Eimers, 20 Apr
2007, T. 4785 – 4786.
522 See e.g. D59, Military map of Sarajevo area; P741, Map marked by Stevan Veljovi}.
523 Andrey Demurenko, 5 July 2007, T. 7731; Cornelis Hendrik Nicolai, 24 Jan 2007, T. 961; D285, Map marked by
Andrey Demurenko. See also Stevan Veljovi, 29 May 2007, T. 5740.
50
Case No IT-98-29/1-T 12 December 2007
proof of knowledge on the part of the Accused of crimes committed under the command of Gen.
Gali} is to be led separately from judicial notice of their existence.524
143. Insofar as the evidence led by the Defence is concerned, the Trial Chamber’s understanding
is that the evidence was relied on to show that an armed conflict between the ABiH and the VRS
existed prior to the Indictment period and that this conflict was fought at a very high level of
intensity. This level of intensity, according to the Defence, also characterised the conflict during the
Indictment period and many Bosnian Serbs were killed or injured in this conflict; the Defence
argued that the many deaths and injuries during the conflict were a direct result of the conflict being
waged at this high level of intensity and this is the explanation for the deaths and injuries sustained
by the civilian population. In those circumstances, the Defence submits that the Prosecution is
wrong to seek to attribute to the SRK an intention to terrorise the civilian population.
144. The Defence led a great deal of evidence on the pre-Indictment period. In the Trial
Chamber’s view, most of this evidence has no direct bearing on the central issue in the case, that is,
the criminal liability of the Accused. Certainly, the Defence was not able at any time, in response to
many urgings from the Bench, to demonstrate how the evidence impacted on the criminal liability
of the Accused. For that reason, the Trial Chamber decided not to include in the Judgement all of
the evidence adduced by the Defence on the pre-Indictment period, but rather to confine itself to
what might be described as a representative sample of that evidence. However, the Trial Chamber
has considered all of the evidence adduced by the Defence relating to that period.
1. SRK Sniping and Shelling of Areas within the Confrontation Lines
145. As discussed above, large scale violence broke out in Sarajevo just prior to 7 April 1992.525
According to Robert Donia, the Prosecution expert on the history of Bosnia and Herzegovina,
armed fighting took place in Sarajevo on most days of April 1992, although it was “punctuated by
internationally-negotiated cease-fires that lasted at most three days.”526 Martin Bell, a journalist for
the BBC, explained that the first few days of the conflict were very confusing days of street fighting
between armies, militias and gangs.527 However, by the end of April 1992, “the contour of
524 Prosecutor v. Dragomir Milo{evi}, Case No IT-98-29/1-AR73.1, Decision on Interlocutory Appeals against Trial
Chamber’s Decision on Prosecution’s for Judicial Notice on Adjudicated Facts and Prosecution’s Catalogue of Agreed
Facts, dated 26 June 2007.
525 P472, Expert report Robert Donia, p. 23; An|elko Draga{, 22 June 2007, T. 7057. See supra, para 22.
526 P472, Expert report Robert Donia, p. 31.
527 Martin Bell, 26 Apr 2007, T. 5239.
51
Case No IT-98-29/1-T 12 December 2007
Sarajevo’s siege was largely established” and from then on, the city of Sarajevo was surrounded for
most of the war.528
146. The city of Sarajevo and its inhabitants inside the confrontation lines were continuously
subjected to shelling and sniping, a phenomenon that featured throughout the conflict, although the
amount of firing was not at a constant level.529 According to Martin Bell, the summer of 1992 was
one of the periods with the highest casualty numbers and the most intense fighting.530 David
Harland, a UN Civil Affairs Officer, stated that in the period 1993 to 1995, 1993 was the most
militarily active year.531 In a report dated 3 November 1993, David Harland wrote that:
“the Serbs have been militarily more active than usual recently. … Sarajevo and Gora`de have
both been under heavy bombardment in the past week. In response to BiH mortar fire, the Old
Town of Sarajevo received almost 500 shells in a one-hour period on the 27th of October. The Old
Town, which has the highest percentage of Muslims of any Sarajevo area, is densely
populated.”532
147. Civilians lived very close to the confrontation lines.533 W-57 stated that given the location of
the confrontation lines, Bosnian Serb fire was, in at least 70 per cent of cases, directed against
civilians and residential areas.534 According to W-107, “… we had been encircled in Sarajevo
from all sides, and we were under fire from all sides. Everybody shot at us constantly, like beasts.
They were trying to kill as many of us as they could.”535 Around mid-May 1992, it became apparent
to Martin Bell that the greater number of casualties on the BiH Government-held side of Sarajevo
was civilians.536 Martin Bell testified that most of the shooting went unrecorded and unmarked by
the press; “it was part of daily life.”537 In his view, civilians would not have been casualties if a
distinction had been made between them and military personnel.538
148. The Trial Chamber heard evidence that civilians were caught in the fighting.539 However,
civilians were also direct targets of shelling and sniping or casualties of indiscriminate firing.540 On
528 See, e.g., David Harland, 15 Jan 2007, T. 344; Ismet Had`i}, 5 Mar 2007, T. 3188 – 3189, 3193, 3433; P472, Expert
report Robert Donia, p. 31; Adjudicated fact 27. The presence of the tunnel formed reason for David Fraser and Andrey
Demurenko to testifiy that the encirclement was not complete, David Fraser 8 Feb 2007, T. 1840; Andrey Demurenko,
21 August 2007, T. 9007.
529 Martin Bell, 26 Apr 2007, T. 5238 – 5240.
530 Martin Bell, 26 April 2997, T. 5240.
531 David Harland, P1, MT. 26937.
532 David Harland, P1, MT. 26939.
533 W-107, 12 Mar 2007, T. 3529 – 3532; T-60, 25 July 2007, T. 8792 (private session).
534 P538, W-57, p. 2 (under seal).
535 W-107, 12 Mar 2007, T. 3511.
536 Martin Bell, 26 Apr 2007, T. 5239. See also John Jordan, P267, p. 7; P268, Video of interview with John Jordan.
537 Martin Bell, 27 Apr 2007, T. 5290 – 5291. See also John Jordan, P267, p. 5.
538 Martin Bell, 26 Apr 2007, T. 5238 – 5239.
539 Martin Bell, 26 Apr 2007, T. 5268; Alen Gi~evi}, 5 Feb 2007, T. 1566 – 1567.
540 See for example P785, UNMO daily sitrep, dated 11 July 1994, p. 5; W-12, 2 Mar 2007, T. 3074, P307, p. 2 (under
seal).
52
Case No IT-98-29/1-T 12 December 2007
24 August 1992, Tadeusz Mazowiecki, Special Rapporteur of the UN Commission on Human
Rights, visited Sarajevo. He stated in his report:
“The siege, including the shelling of population centres and the cutting off of supplies of food and
other essential goods, is another tactic … The city is shelled on a regular basis, in what appears
to be a deliberate attempt to spread terror among the population. Snipers shoot innocent civilians.
The mission visited the hospital, and was able to see many civilian victims. It was also able to see
the damage done to the hospital itself, which has been deliberately shelled on several occasions,
despite the proper display of the internationally recognized Red Cross symbol.”541
149. Evidence indicates that during 1992 and 1993, the SRK had snipers, and civilians were
targeted with sniper fire.542 With respect to shelling, the SRK had positions in the hills around
Sarajevo from which they could, and did, shell the city.543 Milan Mandi}, who testified for the
Defence, recalled that his involvement in combat actions with the SRK 1st Sarajevo Brigade meant
that he had to fire at his brother, who resided in Dolac Malta.544 Other witnesses testified that
civilians were sniped and shelled while collecting water, queuing for food or otherwise going about
their daily lives.545
150. Evidence was presented regarding the shelling of Markale Market on 5 February 1994
(“Markale Market I”), in which 69 people died and over 90 people were wounded.546 John Jordan, a
fire fighter and founder of the Global Operation Fire Rescue Services (“GOFRS”), recalled telling a
journalist reporting on Markale Market I that the incident was not unusual because 60 people had
died in the previous week, “but they died in twos and threes, not in one large incident.”547
151. There were two main civilian hospitals in the ABiH-controlled area of Sarajevo during the
conflict, the Ko{evo Hospital in the north-east of Sarajevo and the State Hospital in the area of
Marindvor.548 The State Hospital was the target of shelling and sniping in the 1992 to 1994 period.
There is evidence that following the decision of the JNA to evacuate the hospital on 9 May 1992,
541 Cited in P472, Expert report Robert Donia, p. 35.
542 See e.g. P610, Videoclip of events in Sarajevo; Martin Bell, 27 Apr 2007, T. 5290 – 5291. See also supra, II.B.1.
Structure of Military Units.
543 See supra, II.B.3. Areas of Responsibilities and Confronation Lines - SRK and 1st Corps of the ABiH. See also
Martin Bell, 26 Apr 2007, T. 5256 – 5257; D116, Statement by W-107, 17 May 2006 (“Statement by W-107”), p. 4
(under seal); P815, UNPROFOR cable, dated 30 May 1992.
544 Milan Mandi}, 3 July 2007, T. 7558 – 7559.
545 Martin Bell, 26 Apr 2007, T. 5259, 27 Apr 2007, 5290; Bogdan Vidovi}, 13 Feb 2007, T. 2061 – 2062, 14 Feb 2007,
T. 2115; Mirza Sabljica, 19 Apr 2007, T. 4700 – 4701, 4703; W-107, 12 Mar 2007, T. 3510 – 3512; W-57, P538, p. 2
(under seal); John Jordan, P267, p. 7.
546 Sead Beži}, 21 Feb 2007, T. 2609, 2619; Mirza Sabljica, 19 Apr 2007, T. 4703.
547 John Jordan, P267, p. 5.
548 Milan Mandilovi}, 17 Jan 2007, T. 559, 561; Bakir Naka{, 25 Jan 2007, T. 1066 – 1067, 1068 – 1069; P46, Map
marked by Milan Mandilovi}; P105, Map marked by Bakir Naka{. The Trial Chamber notes that before the onset of
hostilities in Sarajevo, the State Hospital was a JNA military hospital, although around 65 per cent of its capacity was
used by civilians, but that from 10 May 1992, it was a civilian hospital, Milan Mandilovi}, 17 Jan 2007, T. 559 – 560,
18 Jan 2007, T. 614; Bakir Naka{, 25 Jan 2007, T. 1067, 1068 – 1069, 29 Jan 2007, T. 1141 – 1143. According to
Bakir Naka{, there was a rehabilitation centre in the premises of the Hospital, which was also used by ABiH soldiers,
Bakir Naka{, 25 Jan 2007, T. 1068 – 1069.
53
Case No IT-98-29/1-T 12 December 2007
the VRS deliberately targeted it and was “intent on destroying vital parts of the hospital.”549
According to Bakir Naka{, the Director of the State Hospital, the worst period of targeting of the
State Hospital was 13 to 16 May 1992, when the hospital was hit by about 40 shells.550 The
patients’ rooms on the south side of the hospital were no longer used.551
152. T-61, a Bosnian Serb doctor who worked at the Ko{evo Hospital until January 1994, said
that Ko{evo Hospital was “always” shelled after fire by the ABiH from a school located in the
Faculty of Civil Engineering, approximately 25 to 65 metres away from the hospital’s traumatology
clinic.552 T-61 said that there was a command post of the Patriotic League located in buildings in
the vicinity of the Ko{evo Hospital, including “in most of the schools and kindergartens I know
of”.553
153. Following his visit to Sarajevo at the end of August 1992, Tadeusz Mazowiecki noted that
“Serb forces” had attacked cultural centres, including mosques, the Olympic Museum, the Oriental
Institute, and Muslim, Catholic, and Serbian Orthodox religious institutions from May to August
1992.554 A day after his departure from Sarajevo, “Serb forces” attacked the National and
University Library and the offices of Osloboenje, the daily newspaper.555 Other landmark
buildings, such as the parliamentary office buildings, and the south face of the Holiday Inn were
destroyed by shelling.556
2. Effect on the Civilian Population within the Confrontation Lines
154. The evidence of Prosecution expert Ewa Tabeau and Defence witnesses Maj. Veljovi} and
Milorad Kati} was that, at the start of the conflict, the population in the ten municipalities of
Sarajevo comprised approximately 500,000 persons.557 A large body of evidence was presented
showing the movement in early 1992 of non-Serb populations out of Bosnian Serb-held areas of
Sarajevo and its environs and into Bosnian Muslim-held areas, and this was at least to some extent
549 Bakir Naka{, 29 Jan 2007, T. 1141 – 1143; P472, Expert report Robert Donia, pp 28 - 29, citing Dragan Kalini},
Minister of Health of the Serbian Republic of Bosnia and Herzegovina.
550 Bakir Naka{, 29 Jan 2007, T. 1141.
551 Bakir Naka{, 29 Jan 2007, T. 1141.
552 T-61, 9 July 2007, T. 7830 – 7831; D289, Record of an interview with T-61, 11 March 1996 (“Interview with T-61”)
(under seal), p. 1.
553 T-61, 9 July 2007, T. 7832. See also D289, Interview with T-61 (under seal).
554 P472, Expert report Robert Donia, p. 35. See also Azra [i{i}, 27 Feb 2007, T. 2832 – 2833.
555 P472, Expert report Robert Donia, p. 35.
556 Martin Bell, 26 Apr 2007, T. 5238, 5260; John Jordan, 21 Feb 2007, T. 2649; P270, Videoclip of fire fighting;
Adjudicated Facts 33, 34.
557 P637, Expert report on the killed and wounded persons from the siege of Sarajevo by Ewa Tabeau and Arve Hetland,
dated 19 March 2007 (“Expert report Ewa Tabeau”), p. 67; Stevan Veljovi}, 29 May 2007, T. 5930; Milorad Kati},
29 May 2007, T. 5959, 5975.
54
Case No IT-98-29/1-T 12 December 2007
involuntary.558 In Hrasnica alone, the population increased, from approximately 30,000 to 50,000
persons, due to an influx of Bosnian Muslims from areas such as Trnovo and Eastern Bosnia.559
155. In relation to the movement of the population, the Defence brought evidence indicating that
people moved from Bosnian Serb areas of Sarajevo to Bosnian Muslim areas, and vice versa,
through organised exchanges of people.560 Milorad Kati} testified that on 24 March 1994, the
Bosnian Serb and Muslim civilian authorities, with the assistance of UNPROFOR, opened the
Brotherhood and Unity Bridge to enable people from both sides of the Miljacka River to cross to
the other side.561
156. In respect of the possibility for persons to move across the confrontation lines, the Trial
Chamber notes that neither the duration of the organised exchanges nor how many persons were
exchanged is clear from the evidence. Certainly, the evidence does not suggest that there was any
large scale, systematic exchange of persons in the latter part of the conflict.
157. Maj. Veljovi} testified that during the war “it was also possible to leave the town with the
assistance of UN forces, and there were other ways to leave the town since there were people who
were well-connected and probably with some kind of remuneration they managed to be sent
towards the Serb-held territories.”562 Capt. 1st Class Mrkovi} testified that between 9 April 1992
and June 1992, while he was still with the JNA, he helped organise daily flights from Sarajevo
Airport for the evacuation of people from Sarajevo.563 According to Capt. 1st Class Mrkovi},
“nearly 1,000 citizens of Sarajevo”, without distinction as to ethnicity, were evacuated each day
from the airport in that period.564
158. Similarly, at the start of the conflict there were about 150,000 Bosnian Serbs in Sarajevo.565
Milorad Kati} testified that many Bosnian Serbs left Sarajevo, or went to parts of the city that were
558 Ismet Had`i}, 5 Mar 2007, T. 3188 – 3189; W-107, 12 Mar 2007, T. 3506 – 3508, 3529 – 3532, 3541; Zoran
Samard`i}, 13 June 2007, T. 6640 – 6641, 6644; Luka Jovi}, 14 June 2007, T. 6695 – 6697; Miroslav Peji}, 16 July
2007, T. 8390 – 8392; W-13, P535, p. 2 (under seal); David Harland, P2, MT. 28635 – 28636; W-57, P538, p. 2 (under
seal); W-95, P520, p. 2 (under seal); D116, Statement by W-107, p. 3 (under seal); P472, Expert report Robert Donia,
p. 30; P756, UNCIVPOL report, dated 30 September 1992, pp 1 - 2; P772, Order by Tomislav [ipi, dated 9 June
1992, p. 2; P779, Intercept of conversation on 14 June 1992, p. 3; P808, Minutes Trnovo Crisis Staff. See also P758,
Report on activities of Serbian municipality Novo Sarajevo, 5 June 1992, p. 3.
559 W-57, 17 Apr 2007, T. 4548.
560 T-31, 14 June 2007, T. 6677; D201, Statement of Muvedeta Tanovi} taken by MUP, date 11 April 1993 (“Statement
of Muvedeta Tanovi”), p. 3; D2, UNPROFOR weekly BH political assessment, dated 3 November 1993
(“UNPROFOR weekly BH political assessment, 3 November 1993”), p. 3.
561 Milorad Kati}, 1 June 2007, T. 5991 – 5992. See also, T-31, 14 June 2007, T. 6677; T-7, 19 June 2007, T. 6851;
Predrag arki}, 19 June 2007, T. 6884.
562 Stevan Veljovi}, 24 May 2007, T. 5713.
563 Ljuban Mrkovi}, 12 July 2007, T. 8134 – 8135.
564 Ljuban Mrkovi}, 12 July 2007, T. 8134 – 8135.
55
Case No IT-98-29/1-T 12 December 2007
predominantly Bosnian Serb, such as parts of Vogo{a, Ilijaš and Novo Sarajevo municipalities,
and Lukavica.566 Milan Mandilovi} said that nobody was forced to stay or to leave but that “quite a
few Serbs stayed.”567 However, David Harland said that many others, Bosnian Serbs and non-
Bosnian Serbs alike, who wished to leave the city, were prevented from doing so by the Bosnian
Muslim authorities.568 Witnesses estimated that between 40,000 and 60,000 Bosnian Serbs
remained in Sarajevo within the confrontation lines.569
159. Similarly, according to David Harland, approximately 100,000 out of 400,000 to 500,000
non-Bosnian Serb or mixed marriage inhabitants of Sarajevo found themselves in Bosnian Serbheld
territory at the beginning of the conflict.570 Many of those 100,000 people fled to Bosnian
Muslim-held parts of Sarajevo, while some managed to leave BiH and some others were killed.571
160. David Harland testified that, based on information provided to the UN by Bosnian Serb
hospitals and information available from within the city, the UN estimated that approximately 90
per cent of all civilians who were killed in Sarajevo were killed inside the confrontation lines, that
is, on ABiH-held territory.572 The Trial Chamber heard of many instances in which witnesses or
people they knew were killed or injured as a result of sniping and shelling during the first two years
of the conflict.573 In some of these cases, witnesses specified that the projectile had come from
Bosnian Serb-held territory.574
161. One of the consequences of the sniping and shelling into the city of Sarajevo was that there
was no safe place in Sarajevo.575 When David Harland arrived in Sarajevo in the first half of 1993,
the streets were entirely and “eerily empty” except for some burnt-out vehicles.576 There was
constant background noise, either small-arms fire from the front lines around the city or from the
heavy weapons, “detonations from the Serbian bombardment.”577 People would come out for “very,
565 Milorad Kati}, 31 May 2007, T. 5975; P637, Expert report Ewa Tabeau, p. 67; David Harland, P2, MT. 28634 –
28635. According to David Harland, a “great majority” of them were in areas that were immediately taken under the
control of the “Serb forces”, David Harland, P2, MT. 28635.
566 Milorad Kati}, 31 May 2007, T. 5974 – 5975.
567 Milan Mandilovi}, 18 Jan 2007, T. 608 – 610.
568 David Harland, 15 Jan 2007, T. 358 – 359, P2, MT. 28635 – 28636.
569 Ne|eljko U~ur, 26 July 2007, T. 8915; David Harland, P2, MT. 28635.
570 David Harland, P2, MT. 28634.
571 Milan Mandilovi}, 18 Jan 2007, T. 608 – 610; David Harland, P2, MT. 28634.
572 David Harland, P2, MT. 28677.
573 W-12, 1 Mar 2007, T. 3035 – 3036, P307, p. 2 (under seal); W-107, 12 Mar 2007, T. 3510 – 3513; Slavica Livnjak,
P95, p. 2; Huso Palo, P162, p. 2; Alen Gievi, P164, p. 3; Alma Mulaosmanovi}, P179, p. 3; D`emaludin Luinovi},
P298, p. 3; Avdo Vatri, P647, pp 7, 13; Ned`ib \ozo, P363, p. 3; W-95, P520, p. 3 (under seal); Fadila Serdarevi},
P641, p. 5; Fikreta Pa~ariz, P643, p. 10.
574 See, e.g., Alen Gievi, P164, p. 3; Alija Holjan, P526, p. 3; Slavica Livnjak, P95, p. 3; D`emaludin Luinovi}, P298,
p. 3; Avdo Vatri, P647, p. 7; Ned`ib \ozo, P363, p. 3; Fadila Serdarevi}, P641, p. 5.
575 Bakir Naka{, 25 Jan 2007, T. 1075 – 1076.
576 David Harland, 15 Jan 2007, T. 323.
577 David Harland, 15 Jan 2007, T. 323.
56
Case No IT-98-29/1-T 12 December 2007
very short periods” to collect water from water-dispensing points or food and then “they would
scurry back into their homes.”578
162. The trams in Sarajevo stopped operating during the battle that took place on 2 May 1992
and did not start again until February or March 1994.579 Alternative routes, or “rat runs”, were
established by civilians in Sarajevo so as to minimise the amount of time they needed to be outside
and to ensure safe movement from one place to another.580 Video evidence was presented to the
Trial Chamber showing civilians running from one point to another, particularly when they had to
cross open spaces.581
163. Bakir Naka{ explained how in the period of 1992 to 1994 the way of life changed for the
people in Sarajevo:
“we managed to get by using only a litre of drinking water every day. We got used to it. We got
used to living, getting on without electricity, without drinking water. There was no such thing as
lifts or elevators in the city of Sarajevo because there was not enough electricity to run one, to
operate one. Every day on your way to work you ran the risk of being killed or injured. Each day’s
work meant exposing yourself to the risk of being added to the long list of the killed and
wounded.”582
164. The Security Council was concerned about the situation and passed a number of resolutions
addressing the matter.583 On 13 August 1992, the Security Council noted in Security Council
resolution 771:
“continuing reports of widespread violations of international humanitarian law including …
deliberate attacks on non-combatants, hospitals, and ambulances, impeding the delivery of food
and medical supplies to the civilian population, and wanton devastation of property.”584
165. With regard to fuel, an UNPROFOR report noted that in November 1993, notwithstanding
an agreement between the Bosnian Muslims and Bosnian Serbs on the distribution of wood and coal
in the Sarajevo region, “the Serbs are still blocking the fuel convoys waiting to come into the
city.”585 UNPROFOR reported in February 1994 that the BiH Government accused the Bosnian
Serbs of turning off the gas supply lines; this was denied by the Bosnian Serbs, who said that the
578 David Harland, 15 Jan 2007, T. 323.
579 Martin Bell, 26 Apr 2007, T. 5249.
580 Martin Bell, 26 Apr 2007, T. 5243; P610, Videoclip of events in Sarajevo.
581 P609, Videoclip of sniping in Sarajevo; P610, Videoclip of events in Sarajevo; P613, Videoclip of sniping on Zmaja
od Bosne.
582 Bakir Naka{, 25 Jan 2007, T. 1062 – 1063.
583 P472, Expert report Robert Donia, p. 34, referring, inter alia, to Security Council resolution 757 (30 May 1992).
584 P472, Expert report Robert Donia, p. 34, omission in the original.
585 D2, UNPROFOR weekly BH political assessment, 3 November 1993, p. 3.
57
Case No IT-98-29/1-T 12 December 2007
problem originated in Serbia.586 At this time, night-time temperatures were falling below -20
degrees centigrade.587 People died as a result of the lack of heating.588
166. David Harland testified that during 1994 the Bosnian Serbs usually let in enough food that
the people in Sarajevo did not starve to death.589 However, in addition to the evidence that the
Bosnian Serbs placed impediments in the way of delivery of humanitarian aid, at the beginning of
1994, UNPROFOR reported that the Bosnian Muslim authorities in Sarajevo appeared to be
diverting “even more food than usual away from intended beneficiaries”.590 It reported that the
civilian population in Sarajevo may have been receiving less than one-third of the aid brought into
the city.591 As for the remainder of the food aid, it was reported that some was sold on the black
market and some went to the military; however, most was unaccounted for.592
167. The Trial Chamber heard evidence that fire fighters within the confrontation lines had to
work under shell and sniper fire.593 In early 1993, almost 20 per cent of the Bosnian Muslim fire
fighters were being killed or wounded while fighting fires.594 In September 1993, GOFRS instituted
a protection programme for Bosnian Muslim fire fighters, following which no Bosnian Muslim fire
fighter was killed.595 GOFRS volunteers were also targeted and, as a consequence, they carried
arms and shot at snipers.596 John Jordan stated that when fighting fires on the SRK side, GOFRS
volunteers “seldom” came under fire from snipers or from shelling.597
168. A video clip shown during the trial depicted fire fighters, including John Jordan, fighting a
fire that was raging in a multi-storey building in December 1993, while at the same time being shot
at by snipers.598 The same video clip also depicted John Jordan assisting in an attempted rescue of
two children from a collapsed building in a residential district.599 In this instance, the rescuers came
under “lengthy inconsistent artillery” fire.600 John Jordan testified that the rescue would not have
586 D6, UNPROFOR weekly BH political assessment, 17 February 1994, p. 3.
587 D6, UNPROFOR weekly BH political assessment, 17 February 1994, p. 3.
588 David Harland, P1, MT. 26944 – 26945.
589 David Harland, 15 Jan 2007, T. 344, 375.
590 D6, UNPROFOR weekly BH political assessment, 17 February 1994, p. 3; David Harland, 15 Jan 2007, T. 382 –
383.
591 D6, UNPROFOR weekly BH political assessment, 17 February 1994, p. 3; David Harland, 15 Jan 2007, T. 382 –
383.
592 D6, UNPROFOR weekly BH political assessment, 17 February 1994, p. 3.
593 John Jordan, 21 Feb 2007, T. 2647 – 2648; P270, Videoclip of fire fighting.
594 John Jordan, 22 Feb 2007, T. 2700 – 2701.
595 John Jordan, 22 Feb 2007, T. 2700 – 2701.
596 John Jordan, 21 Feb 2007, T. 2658, 22 Feb 2007, T. 2693, P267, p. 6.
597 John Jordan, P267, p. 5.
598 John Jordan, 21 Feb 2007, T. 2647 – 2648; P269, Video of interview with John Jordan.
599 John Jordan, 21 Feb 2007, T. 2647 – 2648; P269, Video of interview with John Jordan.
600 John Jordan, 21 Feb 2007, T. 2647; P269, Video of interview with John Jordan. Only one of the children survived.
58
Case No IT-98-29/1-T 12 December 2007
been possible if UNPROFOR had not brokered a temporary cease-fire with the SRK, enabling the
UNPROFOR troops to assist in the rescue with heavy equipment.601
3. Defence Evidence of ABiH Activities from 1992 to 1994
169. Defence witnesses gave evidence concerning ABiH attacks against units of the SRK during
the pre-Indictment period.602 There is also evidence regarding shelling of the SRK and Bosnian
Serb civilians and civilian areas by the ABiH.603 For example, Zoran Samard`i}, a soldier within
the SRK, explained that in 1993, “there was lots of fighting and many shells fell on the urban area
of Had`i}i.”604 On 13 April 1993, his friend was injured by shrapnel in the street.605 After visiting
that friend, Zoran Samard`i} returned home to find that his 13-year-old son was dead, as was his
son’s 11-year-old friend, Srdjan Zuza.606
170. The Defence put to Robert Donia that “several thousand” Bosnian Serbs were killed in
Sarajevo in 1992.607 He disagreed, saying that one demographer had estimated that 151 Bosnian
Serbs were killed in encounters with Croat or Bosnian Muslim “irregulars” within Sarajevo in 1992
although, in his view, the number of Bosnian Serbs killed by artillery fire and sniping and tank fire
was much greater than that.608 However, he maintained that the figure of 2,511 individuals included
in a RS Government report was “unquestionably high.”609
171. According to Martin Bell, civilians in SRK-held territory were also targeted.610 Evidence
indicates that the ABiH had and used snipers in the pre-Indictment period.611 Witnesses testified
about incidents in which they, family members, friends or civilians generally were shot by the
ABiH.612 In two UNPROFOR reports, dated 15 October 1993 and 16 October 1993, Radovan
601 John Jordan, 21 Feb 2007, T. 2647 – 2648.
602 Milorad Kati}, 31 May 2007, T. 5975 – 5976; Vaso Elez, 7 June 2007, T. 6345 – 6346; Zoran Samard`i}, 14 June
2007, T. 6651 – 6652; Predrag ^arki}, 19 June 2007, T. 6869 – 6870, 6871 – 6872; Radomir Visnji}, 25 June 2007,
T. 7228, 7239 – 7245, 7260, 7261; Rade Ivanovi}, 4 July 2007, T. 7625 – 7626, 7631, 7633; T-15, 13 July 2007,
T. 8291 – 8292; T-9, 16 July 2007, T. 8344 – 8345.
603 Stevan Veljovi}, 29 May 2007, T. 5747, 5749; Vaso Elez, 7 June 2007, T. 6332 – 6333; T-53, 7 June 2007, T. 6387
– 6388; Goran Kova~evi}, 12 June 2007, T. 6544 – 6545; T-39, 21 June 2007, T. 6994 – 6995; T-48, 22 June 2007,
T. 7133 – 7134; T-37, 10 July 2007, T. 7983; T-20, D496, p. 2 (under seal); Dragan Orli}, D497, p. 3; D185, SRK
combat report, dated 13 September 1992 (“SRK combat report, 13 September 1992”).
604 Zoran Samard`i}, 13 June 2007, T. 6626 – 6627.
605 Zoran Samard`i}, 13 June 2007, T. 6626 – 6627.
606 Zoran Samard`i}, 13 June 2007, T. 6626 – 6627, 6628; D229, Death certificate of Stasa Samard`i}, dated 18 May
1993.
607 Robert Donia, 16 Mar 2007, T. 3962 – 3963.
608 Robert Donia, 16 Mar 2007, T. 3963.
609 Robert Donia, 16 Mar 2007, T. 3963.
610 Martin Bell, 26 Apr 2007, T. 5239, 5253 – 5254.
611 Milorad Kati}, 31 May 2007, T. 5983 – 5984; T-2, 20 June 2007, T. 6924 – 2926; Kosta Kosovi}, 10 July 2007,
T. 7995; D185, SRK combat report, 13 September 1992; D251, Order, 5 March 1993.
612 See e.g. Dragan Simi}, 5 June 2007, T. 6164; Vaso Elez, 7 June 2007, T. 6332; T-2, 20 June 2007, T. 6920, 6924,
6936 – 6939, 6949; T-61, 9 July 2007, T. 7837 – 7838; Mom~ilo Gojkovi}, 13 July 2007, T. 8253 – 8254.
59
Case No IT-98-29/1-T 12 December 2007
Karad`i} reportedly said that Bosnian Muslim shelling and sniping was a big problem.613 T-5
recalled, “every day I would watch civilians getting killed on the streets, and we were helpless to
assist them because we were also exposed to danger. I personally saw when a boy was hit. His
mother went up to him to help. The mother was also hit. And they remained there on the street until
it got dark. No one was able to help them.”614
172. Milorad Kati} also testified about the death and injury of people in Bosnian Serb-held parts
of Sarajevo during the pre-Indictment period.615 Witnesses also spoke of feeling frightened,
threatened and unsafe.616 Others spoke of civilians living close to the confrontation lines.617
Radomir Vi{nji}, testifying for the Defence, recalled that anti-sniping barriers were put up in
Bosnian Serb areas in the pre-Indictment period.618 Defence witness T-5, a civilian from Grbavica,
testified that after May 1992, “we spent the whole day in the basement, and at night we would
supply ourselves with food and water and we were able to go out during the night. During the day,
we didn’t dare to because there was shooting, constant shooting.”619 Luka Jovi}, a member of an
SRK Armoured Battalion, spoke of the lack of water and electricity in the Bosnian Serb-held areas
of Dobrinja.620
173. Defence witness Milan Peji}, a doctor, testified that in 1992 there were no hospitals in
Blažuj.621 Following an attack in late April 1992 at a hotel in Ilid`a, he treated people in a motel,
giving them first aid.622 Milorad Kati} said that, in 1992, wounded persons were taken to Pale, a
journey that took a minimum of three or four hours by road.623 Later, Zica Hospital was established
in Blažuj, approximately six kilometres away from Ne|ari}i.624 According to the Prosecution
witness Milomir [oja, this was the only hospital in the area and civilians and military personnel
alike were treated there.625 However, major surgery could not be carried out at Zica Hospital.626
613 David Harland, P1, MT. 26950.
614 T-5, 25 June 2007, T. 7209 – 7210.
615 Milorad Kati}, 31 May 2007, T. 5970 – 5971, 5373 – 5374, 1 June 2007, T. 5993; D198, Article from Srpska
Vojska, dated 25 January 1994.
616 T-7, 19 June 2007, T. 6848 – 6850; Radomir Visnji}, 25 June 2007, T. 7260.
617 Vaso Elez, 6 June 2007, T. 6308 – 6310; Luka Jovi}, 14 June 2007, T. 6697 – 6698.
618 Radomir Visnji}, 25 June 2007, T. 7245; T-44, D498, p. 3 (under seal).
619 T-5, 25 June 2007, T. 7208. See also Luka Jovi}, 14 June 2007, T. 6716.
620 Luka Jovi}, 14 June 2007, T. 6697 – 6698.
621 Milan Peji}, 21 June 2007, T. 7027.
622 Milan Peji}, 21 June 2007, T. 7027 – 7028. See also Milomir [oja, 25 Apr 2007, T. 5165.
623 Milorad Kati}, 1 June 2007, T. 6023. See also Radomir Visnji}, 25 June 2007, T. 7238 – 7239.
624 Milan Pejic, 21 June 2007, T. 7033; Milorad Kati}, 1 June 2007, T. 6023. See also Milomir [oja, 25 Apr 2007,
T. 5165.
625 Milomir [oja, 25 Apr 2007, T. 5165. See also Milorad Kati}, 1 June 2007, T. 6022 – 6023.
626 T-48, 22 June 2007, T. 7136.
60
Case No IT-98-29/1-T 12 December 2007
Milorad Kati} testified that the lack of facilities at all the hospitals, including the hospitals of
Kasindol and Pale, meant that the seriously wounded had to be transferred to Belgrade.627
D. Challenge to the Reliability of the Investigation by BiH Police and BiH Police Reports
174. The Defence, in its Final Brief, argued that the reports of the BiH police should be excluded
from the evidence pursuant to Rule 95 of the Rules of Procedure and Evidence (“Rules”).628 In
particular, it argued that the MUP forces formed part of the ABiH.629 Moreover, the BiH police did
not respect the criminal procedure in force at the time by leaving crime scenes unguarded, not
registering the statements of possible eyewitnesses or not including the names of eyewitnesses in
their investigative reports; crime scenes were cleaned up before investigations were carried out; the
investigators were not properly trained and military experts were never part of investigation teams;
the methods used to establish a causal link between the killed or injured person and the incident, as
well as the civilian status of the victim, were unacceptable because victims were not photographed
nor was biological material gathered at the scene, “medical reports were never of interest to the
Bosnian police investigators”, and the means of determining the status of victims was
unverifiable.630
175. Several BiH police officers testified that the police only investigated cases of shelling and
sniping if there were casualties or heavy damage.631 Upon being informed that an incident occurred,
an investigative team was set up, which was led by an investigative judge.632 The unarmed team,
which did not wear uniforms, generally also included a criminal inspector, a forensic technician or a
crime scene officer and, if the incident concerned a shelling, a member of a bomb squad.633 The
bomb squad member was part of the KDZ, the members of which were trained in detecting,
deactivating and disarming explosive devices.634 Each member of the investigative team was
responsible for different aspects of the investigations.635 In response to questions by the Defence,
627 Milorad Kati}, 1 June 2007, T. 6023 – 6024.
628 Defence Final Brief, dated 1 October 2007 (“Defence Final Brief”), paras 158 – 168.
629 Defence Final Brief, paras 64, 120, 122, 158.
630 Defence Final Brief, paras 158 – 167.
631 Bogdan Vidovi}, 14 Feb 2007, T. 2110; Sanjin Hasanefendi}, 16 Feb 2007, T. 2295 – 2296; Sead Be{i}, 21 Feb
2007, T. 2607 – 2608; Zlatko Meedovi}, P649, p. 11.
632 W-138, 31 Jan 2007, T. 1318 – 1319; Bogdan Vidovi}, 14 Feb 2007, T. 2116 – 2117; Sanjin Hasanefendi}, 16 Feb
2007, T. 2293; W-137, 20 Feb 2007, T. 2521; W-28, 22 Feb 2007, T. 2708 – 2709; Ned`ib \ozo, 14 Mar 2007,
T. 3706, 3708 – 3709; W-116, 17 Apr 2007, T. 4614 – 4616.
633 W-138, 30 Jan 2007, T. 1207, 1 Feb 2007, T. 1432, 1436 – 1437; Sanjin Hasanefendi}, 16 Feb 2007, T. 2293 –
2295, 2355; W-137, 19 Feb 2007, T. 2478 – 2479; W-28, 22 Feb 2007, T. 2708 – 2709, 2726 – 2727; W-116, 18 Apr
2007, T. 4648 – 4649, P549, p. 2, P551, p. 2; Zlatko Meedovi}, P649, p. 11.
634 W-137, 19 Feb 2007, T. 2410; Ekrem Suljevi}, 2 Mar 2007, T. 3094 – 3095, 3111; W-116, 18 Apr 2007, T. 4632.
635 W-138, 30 Jan 2007, T. 1206 – 1207, 1211 – 1214; Sead Be{i}, 20 Feb 2007, T. 2576, 2581; W-116, 17 Apr 2007,
T. 4616, 18 Apr 2007, T. 4632 – 4633, 4650 – 4651, P548, p. 2, P549, p. 2; Mirza Sabljica, 19 Apr 2007, T. 4694 –
4695, 4709 – 4710, 4737, 4756 – 4757, 4778. See also, Kemal Bu}o, 2 Feb 2007, T. 1498 – 1504, 1514, P158, p. 2;
Bogdan Vidovi}, 13 Feb 2007, T. 2060; Sanjin Hasanefendi}, 16 Feb 2007, T. 2291 – 2295, 2324, 2327; W-137,
19 Feb 2007, T. 2410 – 2412; W-28, 22 Feb 2007, T. 2709 – 2710, 2718 – 2719, 2732 – 2733, 2747; Ekrem Suljevi},
61
Case No IT-98-29/1-T 12 December 2007
Prosecution witnesses testified that it was not always possible for an investigative judge to be
present during the investigation; many investigative reports indicate the extent to which the
investigative judge was involved.636 These witnesses noted that under law in BiH, it was possible
that another member of the investigation team would take charge of the investigation in the absence
of the judge.637 The RS police did not assist in the investigations inside the city of Sarajevo,
although it would have been allowed.638 Defence witness Simo Tu{evljak, chief of security of the
RS police, testified in cross-examination that he could only recall two instances in which the RS
police offered to assist the BiH police in its investigation.639
176. The Defence argued that military experts ought to have participated in the investigation
teams.640 BiH police officers testified that the members of investigative teams were trained in
investigation techniques, including the determination of direction of fire, through courses and field
experience, and were sometimes taught techniques by UN personnel. If officers were inexperienced,
they conducted their tasks under the supervision of a more experienced police officer.641
177. Several BiH police officers testified that until the investigative team arrived, the scene was
secured by police officers from the local police stations.642 The Defence argued that no reports of
police officers from local police stations were tendered into evidence, even though they “were
supposed to evacuate the dead and wounded before the arrival of the Security Centre police.”643
178. Witnesses for the Prosecution testified that UNMOs attended the scenes of shelling or
sniping incidents on a regular basis.644 UNPROFOR was also involved in some investigations.645
2 Mar 2007, T. 3094 – 3095, 3101 – 3102, 5 Mar 2007, T. 3184 – 3185; W-91, 14 Mar 2007, T. 3740; Vekaz Turkovi},
26 Apr 2007, T. 5224. See e.g. P582, Criminal investigation file, dated 12 November 1994, p. 1.
636 W-137, 20 Feb 2007, T. 2521 – 2522; W-28, 22 Feb 2007, T. 2708 – 2709; Ned`ib \ozo, 14 Mar 2007, T. 3708 –
3709.
637 Ned`ib \ozo, 14 Mar 2007, T. 3708 – 3709; W-91, 15 Mar 2007, T. 3792. See also, W-28, 22 Feb 2007, T. 2708 –
2709.
638 Sead Be{i}, 21 Feb 2007, T. 2605 – 2606.
639 Simo Tu{evljak, 11 July 2007, T. 8043 – 8044, 12 July 2007, T. 8104 – 8105.
640 Defence Final Brief, para. 161.
641 W-138, 30 Jan 2007, T. 1204 – 1205 (private session); Bogdan Vidovi}, 13 Feb 2007, T. 2059, 14 Feb 2007,
T. 2109; Sanjin Hasanefendi}, 16 Feb 2007, T. 2287; W-137, 19 Feb 2007, T. 2409, 2412 – 2414; Sead Be{i}, 20 Feb
2007, T. 2568, 2575, 21 Feb 2007, T. 2607 – 2609; Ekrem Suljevi}, 2 Mar 2007, T. 3094 – 3095, 3105 – 3106; W-116,
18 Apr 2007, T. 4648 – 4649; Mirza Sabljica, 19 Apr 2007, T. 4694 – 4695, 4698 – 4699; Vekaz Turkovi}, 26 Apr
2007, T. 5217 – 5219. See also Kemal Bu}o, 2 Feb 2007, T. 1500 – 1501; W-28, 22 Feb 2007, T. 2707 (private
session); Ned`ib \ozo, 14 Mar 2007, T. 3681. Zlatko Meedovi} stated he gained sufficient knowledge on ballistic
traces of military shells from studying literature before the war started, Zlatko Meedovi}, P649, pp 2, 11.
642 W-28, 22 Feb 2007, T. 2730 – 2731 (private session); W-91, 15 Mar 2007, T. 3769; Vekaz Turkovi}, 25 Apr 2007,
T. 5191; W-116, P551, p. 2 (under seal).
643 Defence Final Brief, para. 159.
644 Thorbjorn Overgard, 18 Jan 2007, T. 637; Asam Butt, 14 Feb 2007, T. 2160, 2162; Harry Konings, 12 Mar 2007,
T. 3555 – 3556; W-57, 17 Apr 2007, T. 4593; W-116, 18 Apr 2007, T. 4649.
645 W-156, P625, p. 21 (under seal); W-46, P387, p. 15 (under seal).
62
Case No IT-98-29/1-T 12 December 2007
However, UN personnel and the BiH police largely conducted separate investigations.646 Upon
completion of the police investigation, a report would be drawn up containing the results of the
investigation and results from the crime laboratory.647 If UN personnel were present at the scene,
and if they provided relevant information or made comments, this was reflected in the investigative
report.648 The report was sent to the Prosecutor’s office in Sarajevo by the police or the
investigative judge.649
179. The Defence argued that the evidence shows that UNMOs were sometimes not permitted to
attend sites of shelling or sniping, or hospitals and morgues, and that this was one of the factors
which, according to the Defence, casts substantial doubt on the credibility of the BiH police
reports.650 However, Maj. Overgard testified that, in general, there were no restrictions on the
movement of UNMOs.651
180. The Trial Chamber heard evidence from several witnesses of the method by which the
direction of fire was established by the BiH police and the UN. When investigating shelling
incidents during the Indictment period, the BiH police and UN personnel used the same basic
method for determining the origin or direction of fire.652 QMS Higgs, the Prosecution expert on
mortars, was of the opinion that the BiH police were very competent in crater analysis and used the
correct methodology to determine the direction of fire.653 Defence expert Maj. Gen. Garovi}
challenged the investigations by the BiH police, saying that the methods used would not allow for a
determination of the origin of fire.654 However, the Trial Chamber notes that the BiH police reports
646 Thorbjorn Overgard, 19 Jan 2007, T. 662; Harry Konings, 12 Mar 2007, T. 3556; Thomas Hansen, 2 Apr 2007,
T. 4388 – 4389; Ned`ib \ozo, P364, p. 2; Ronald Eimers, P585, p. 5.
647 W-138, 1 Feb 2007, T. 1350; Bogdan Vidovi}, 13 Feb 2007, T. 2060; Sead Be{i}, 21 Feb 2007, T. 2597; W-28,
22 Feb 2007, T. 2709, 2748; Mirza Sabljica, 19 Apr 2007, T. 4709; Vekaz Turkovi}, 25 Apr 2007, T. 5191. See also
Asam Butt, 14 Feb 2007, T. 2160; Harry Konings, 12 Mar 2007, T. 3555 – 3556; Hussain Ijaz, 27 Apr 2007, T. 5411 –
5412; Ned`ib \ozo, P363, p. 2, P364, p. 2.
648 Bogdan Vidovi}, 14 Feb 2007, T. 2144 – 2145; W-28, 22 Feb 2007, T. 2749 – 2750; Ekrem Suljevi}, 2 Mar 2007,
T. 3102. See also Thorbjorn Overgard, 19 Jan 2007, T. 662; Harry Konings, 12 Mar 2007, T. 3556; Ronald Eimers,
P585, pp 2, 5; P266, Criminal investigation file, dated 29 August 1995.
649 Sead Be{i}, 21 Feb 2007, T. 2597; W-28, 22 Feb 2007, T. 2719, 2724 – 2725, 2765 (private session); Ekrem
Suljevi}, 2 Mar 2007, T. 3102; Vekaz Turkovi}, 25 Apr 2007, T. 5191 – 5193; W-116, P549, p. 2.
650 Defence Final Brief, paras 153 – 157.
651 Thorbjorn Overgard, 19 Jan 2007, T. 688 – 691. See also David Harland, 16 Jan 2007, T. 442; Ghulam Muhammad
Mohatarem, 19 Jan 2007, T. 712; Thomas Knustad, 13 Feb 2007, T. 2011; Asam Butt, 15 Feb 2007, T. 2233; W-137,
20 Feb 2007, T. 2497 – 2498; Per Anton Brennskag, 8 Mar 2007, T. 3501; W-46, 15 Mar 2007, T. 3817 – 3818 (closed
session), 16 Mar 2007, T. 3897, 3904 – 3905 (closed session); Ronald Eimers, 20 Apr 2007, T. 4798 – 4799, 4802,
P585, p. 7; W-156, 27 Apr 2007, T. 5359 – 5361 (closed session), P625, pp 17, 23, 31 (under seal); Hussain Ijaz,
27 Apr 2007, T. 5411 – 5412; D7, UNPROFOR daily sitrep, dated 2 December 1994 (“UNPROFOR daily sitrep,
2 December 1994”), p. 3; D73, UNMO HQ daily sitrep, dated 19 June 1995 (“UNMO daily sitrep, 19 June 1995”),
p. 12; P9, UNPROFOR daily sitrep, dated 25 November 1994, p. 5; P19, UNPROFOR sitrep, dated 2 July 1995, p. 2.
652 Mirza Sabljica, 19 Apr 2007, T. 4696. See also Thorbjorn Overgard, 18 Jan 2007, T. 635. Before their deployment to
Sarajevo, UNMOs were specifically trained in crater analysis and technical aspects of weaponry, Thorbjorn Overgard,
19 Jan 2007, T. 656 – 657; Thomas Knustad, 13 Feb 2007, T. 1989; Asam Butt, 14 Feb 2007, T. 2151 – 2152; Harry
Konings, 12 Mar 2007, T. 3550, 3573 – 3574.
653 Richard Higgs, 23 Apr 2007, T. 5015.
654 Desimir Garovi}, 23 Aug 2007, T. 9130; D366, Expert report Desimir Garovi}, p. 13.
63
Case No IT-98-29/1-T 12 December 2007
and the investigation reports by UNMO did not indicate an exact position as the origin of fire of
shells. Rather, the reports consistently provided a direction of fire with a margin of error.
Sometimes the recorded margin of error was as high as ten degrees. In cases where an exact
location was mentioned, this was based on statements of witnesses who saw the launch of the
projectile.
181. The BiH police and UNMOs also investigated shelling incidents involving modified air
bombs.655 W-137 and W-116 gave evidence that it was “slightly” or “much more” difficult to
determine direction of fire for modified air bombs because of the sort of crater they produced.656
However, if the modified air bomb struck a vertical object, such as a high-rise building, it was easy
to determine the direction of fire on the basis of the marks left by the explosion; in case the bomb
had first ricocheted, it was possible to determine the direction of fire based on the ricochet marks.657
Berko Ze~evi} clarified that if an air bomb, whether modified or not, hits a target at an angle of
around 25 degrees or less, it could ricochet rather than explode because the fuse would not be the
first part of the bomb to hit an obstacle.658 Sanjin Hasanefendi} and Berko Ze~evi} said that the
direction of fire of these bombs was determined through an analysis of the centre of the explosion
and the traces left by the explosion; these traces were used to estimate the angle of descent.659 Maj.
Gen. Garovi} testified that on the basis of a crater caused by an air bomb, and using a magnetic
compass, nothing could be determined in respect of origin of fire because there is only inaccurate
data about the effects of a modified air bomb.660
182. As was the case in shelling incidents, due to continuing fire, police officers were often
unable to investigate a sniping scene immediately after the incident occurred.661 Sometimes the
investigative team only drove past the location of an incident without stopping to gather forensic
evidence at that location.662
183. The Trial Chamber notes that the Defence, specifically with regard to sniping incidents,
argued that the methods to establish the origin of fire were not appropriate in the circumstances. In
particular, and by way of example, it argued that certain factors do not support BiH police findings
655 Thorbjorn Overgard, 18 Jan 2007, T. 634; W-138, 30 Jan 2007, T. 1208 – 1209; W-28, 22 Feb 2007, T. 2708; Per
Anton Brennskag, 8 Mar 2007, T. 3467.
656 W-137, 19 Feb 2007, T. 2422; W-116, 18 Apr 2007, T. 4670.
657 W-138, 30 Jan 2007, T. 1209, 31 Jan 2007, T. 1318 – 1320; W-137, 19 Feb 2007, T. 2422.
658 Berko Ze~evi}, 20 Apr 2007, T. 4842; W-137, 19 Feb 2007, T. 2424; P586, Expert report Berko Ze~evi}, p. 179.
659 Sanjin Hasanefendi}, 16 Feb 2007, T. 2327 – 2329; Berko Ze~evi}, 20 Apr 2007, T. 4850 – 4851. See also W-138,
1 Feb 2007, T. 1349 – 1350; W-137, 19 Feb 2007, T. 2471.
660 Desimir Garovi}, 23 Aug 2007, T. 9151.
661 Kemal Bu}o, 2 Feb 2007, T. 1519 – 1520; W-28, 22 Feb 2007, T. 2718; Mirza Sabljica, 19 Apr 2007, T. 4749;
Vekaz Turkovi}, 26 Apr 2007, T. 5226; P582, Criminal investigation file, p. 1. See also, Section II.E.6.(b)(i) Shelling of
Livanjska Street on 8 November 1994.
662 Kemal Bu}o, 2 Feb 2007, T. 1518 – 1520.
64
Case No IT-98-29/1-T 12 December 2007
on origin of fire in cases of sniping.663 These factors include: the location of the confrontation lines,
which would often cross certain buildings and were very near to each other; that snipers often
changed positions; the existence of rumours about certain sniper positions, which would have
resulted in the police officers not truly investigating the origin of fire; the possibility of so-called
“stray bullets” and ricochets; and that the police officers did not take into account pre-existing
damage to buildings when making their findings. Finally, the Defence also drew attention to the fact
that witnesses testified that the ABiH shot at individuals in order to create panic.
184. Col. Stamenov, the Defence expert on sniping, was specifically asked about the
investigations into sniping conducted by the BiH police and whether he agreed with the findings of
the police. In his report, he stated that the process used by the BiH police was “unscientific, based
on arbitrary and hypothetical assumptions, making use of arbitrary data and as such cannot lead to a
truthful conclusion founded on scientific facts.”664 During his testimony, he said that in an urban
environment it is “extremely difficult” to establish the origin of fire, because such an environment
causes “multiple deflection of the sound” and that this effect can cause a situation where it sounds
like the shot comes from one location, when, in actual fact, it was fired from another.665
185. Witnesses testified, when asked by the Defence, that there were instances in which the
evidence at the scene was tampered with, or even planted.666 Media reports by the BiH of targeted
civilians inside Sarajevo by the SRK were often regarded by SRK brigade commanders as “false”
allegations and “propaganda”.667 Lt. Col. Konings, a Dutch UNMO, confirmed that there were
rumours that bodies were “dragged around the city” and were planted in locations other than where
those people had died, in order to make the number of killed persons appear higher.668 He testified
that on his arrival in Sarajevo he was briefed by UNPROFOR to “be alert to the possibility of
bodies being planted at scenes”, but that he never saw any evidence to support this rumour.669 He
also testified that he never heard from his superiors that bodies were planted to serve military and
political interests of BiH.670 Another witness recalled one incident in which UN “investigators”
were not allowed to attend a shelling scene for a number of hours and that upon arrival at the scene
663 Defence Final Brief, para 168.
664 D360, Expert report Ivan Stamenov, p. 14.
665 Ivan Stamenov, 22 Aug 2007, T. 9031, 9033.
666 W-138, 1 Feb 2007, T. 1362, 1374, 1379 – 1380; W-137, 20 Feb 2007, T. 2553; Berko Ze~evi}, 23 Apr 2007,
T. 4956, 4972.
667 Vlajko Bozi}, 17 July 2007, T. 8448 – 8449.
668 Harry Konings, 12 Mar 2007, T. 3558 – 3559.
669 Harry Konings, 12 Mar 2007, T. 3559, 13 Mar 2007, T. 3644.
670 Harry Konings, 13 Mar 2007, T. 3643 – 3645. The Trial Chamber notes that the Defence put this proposition to him,
quoting Gen. Nicolai’s testimony regarding the Markale Market II shelling, in which he stated that the possibility that
people could be used as an instrument for the highest interest of the state was “an option that we did not exclude”,
Cornelis Hendrik Nicolai, 25 Jan 2007, T. 1039.
65
Case No IT-98-29/1-T 12 December 2007
they found debris which “could not have been the result of firing coming from the Serbs.”671 This
witness said that manipulation was something that had to be “reckoned with.”672
186. Several BiH police officers disagreed with the Defence assertions that evidence was
tampered with. They explained that often there were no bodies at the scenes of incidents because
local people took the victims to hospital or to the morgue.673 According to W-137, “those
collecting the bodies were never entirely certain whether the body was dead or still alive.”674 As for
the cleaning up of blood marks at the scene, it was said that this was a “perfectly normal, natural
human reaction.”675 W-116 testified that it would be “naive” and an “exaggeration” to think that
people in Sarajevo would be shelling themselves with “over two million shells over four years”.676
From early 1994 until the end of the war, W-137 conducted “a couple of hundred” mortar crater
analyses.677 He believed that it was impossible for anyone to try and tamper with a crater, not only
because there would be too many witnesses to such an activity, but also because in order to falsify
traces in hard surfaces, such as asphalt, so as to make them appear to have been caused by shrapnel,
one would have to hammer hard at the surface.678 People walking over the crater could not change
the traces left in the surface.679
187. The Trial Chamber observes that the evidence from Defence witnesses as to the working
methods of the RS police shows that the methods of investigating the incident site by the RS police
were almost identical to the methods of the BiH police. The similarities include the following: the
RS police teams also had an investigative judge; it was the responsibility of the police to secure the
scene; photographs and blood samples would be taken of the bodies of victims at the scene, but the
police also came to the morgue to photograph the victims; an on-site investigation was often not
conducted immediately, due to continuing fire; and the investigation reports were sent to the
relevant prosecutor’s office.680 Furthermore, it was not always possible to conduct a full autopsy,
for instance, in cases of numerous victims or unavailability of medical experts only an external
examination of the body would take place.681
671 W-46, 16 Mar 2007, T. 3897 (closed session).
672 W-46, 16 Mar 2007, T. 3895 (closed session), P387, p. 15 (under seal).
673 Vekaz Turkovi}, 26 Apr 2007, T. 5225 – 5226; W-28, 22 Feb 2007, T. 2731 – 2734. See also Mirza Sabljica, 19 Apr
2007, T. 4757 – 4758.
674 W-137, 20 Feb 2007, T. 2501.
675 W-137, 20 Feb 2007, T. 2502.
676 W-116, 18 Apr 2007, T. 4662 – 4663.
677 W-137, 19 Feb 2007, T. 2414.
678 W-137, 19 Feb 2007, T. 2418, 2430.
679 W-137, 19 Feb 2007, T. 2430.
680 Simo Tu{evljak, 11 July 2007, T. 8043, 8066, 8069, 8089 – 8090, 8100 – 8102; Ivica Milosavljevic, 24 Aug 2007,
T. 9237 – 9240, 27 Aug 2007, T. 9252.
681 Ivica Milosavljevi, 24 Aug 2007, T. 9238 – 9239, 9243 – 9244, 9248 – 9249, 27 Aug 2007, T. 9251 – 9253.
66
Case No IT-98-29/1-T 12 December 2007
188. The Defence submitted in its Final Brief that the MUP forces formed part of the ABiH.682
An intelligence report by the SRK stated that there were between 11,000 and 12,000 members of
the BiH MUP in the city of Sarajevo.683 Goran Kovaevi testified that BiH MUP units and special
police units remained directly involved throughout the conflict, by taking part in “riots and sabotage
action”.684 However, Maj. Gen. Karaveli testified that the ABiH and the civilian police were two
separate entities.685 The BiH MUP forces were not under the control of the army, but remained
under the control of the BiH Government and the BiH MUP.686 He denied that special BiH MUP
units were subordinated to his command or that reserve police officers fought as ABiH
combatants.687 However, he explained that sometimes police units were assigned for certain combat
actions and that an agreement was reached between Gen. Deli} and BiH MUP that these police
forces could be used by brigade commanders in a specific area.688 If assistance was requested for a
special operation, a BiH MUP unit was temporarily placed under the command of the 1st Corps.689
Orders of Gen. Prevljak confirm that special MUP units, among them the Bosna and Lasta
detachments, were engaged in operations with the ABiH.690
189. As to the Defence reliance in its Final Brief on Rule 95 it is passing strange that an
argument to the effect that Prosecution evidence contravenes that Rule was not presented during the
trial. That Rule vests the Trial Chamber with a discretion to exclude evidence obtained by methods
which cast substantial doubt on its reliability or if its admission is antithetical to, and would
seriously damage, the integrity of the proceedings. While it is not precluded for a Party to invoke
Rule 95 for the first time in its Final Brief, it would seem that a Party who is serious about its
reliance on the Rule would have raised this argument during the trial; the reason being that a Trial
Chamber, in determining the applicability of Rule 95, would in many cases consider it necessary to
hold a trial within a trial - clearly, a procedure that would not ordinarily take place at the stage of
the presentation of a final brief. In the circumstances of this case, it is sufficient for the Trial
Chamber to say that the Defence adduced no evidence to substantiate its submission as to the
application of Rule 95. Although the Trial Chamber acknowledges that there were shortcomings in
some of the procedures adopted by the BiH police investigation teams, it is satisfied that the reports
produced by the teams are generally reliable and provide a sufficient basis for the Trial Chamber’s
682 Defence Final Brief, paras 64, 120, 122, 158.
683 P691, Intelligence information by SRK, dated 2 April 1995.
684 Goran Kovaevi}, 12 June 2007, T. 6542 – 6543, 6601.
685 Vahid Karaveli, 27 Mar 2007, T. 4082 – 4083.
686 Vahid Karaveli, P492, pp 14 - 15.
687 Vahid Karaveli, 28 Mar 2007, T. 4154 – 4155, P494, GT. 11788.
688 Vahid Karaveli, 28 Mar 2007, T. 4159.
689 Vahid Karaveli, P492, pp 14 - 15. That happened no more than five times in 1994 and 1995, Vahid Karaveli,
27 Mar 2007, T. 4083 – 4084.
690 D62, Order by Fikret Prevljak, dated 23 August 1995, p. 1. See also D61, Order by Fikret Prevljak, dated 6 July
1995; D143, Order by Fikret Prevljak on use of Sarajevo CSB Police Units, dated 8 May 1995.
67
Case No IT-98-29/1-T 12 December 2007
findings. The Trial Chamber is in a position to rely on the reports for its findings to the degree
required by the law.
190. The Trial Chamber was presented with evidence that special BiH police units occasionally
took part in combat activities. However, the Trial Chamber finds that these units did not form part
of the ABiH throughout the Indictment period. The evidence shows that the units stayed under
separate command of the Bosnian government and the BiH MUP. The evidence does not support a
finding that the regular police was an integral part of the ABiH troops, nor does it support a finding
that the regular police assisted in combat operations during ABiH offensives.
191. The Trial Chamber, when deciding on sniping incidents, will make its own determination on
the direction of fire and, where necessary and possible, on the origin of fire. In doing so, it will be
mindful of the arguments presented by the Defence, which are set out in paragraph 183 above.
E. Evidence pertaining to the “Campaign” in the Indictment Period
192. As set out in the Indictment, the Prosecution has charged the Accused with conducting “a
campaign of shelling and sniping upon civilian areas of Sarajevo and upon the civilian population
which had the primary purpose of spreading terror among the civilian population. Civilians were
killed or seriously injured as a result.”691 The Defence submitted that “there can be no doubt that
this conflict caused many deaths and injuries on both sides, that the situation for civilians was grim
on both sides and varied depending on military activities” but the situation in Sarajevo, as presented
in “the reports”, was one-sided and “inquiries often turned out superficial to facilitate political
decisions.”692
193. In its Final Brief, the Defence submitted that the SRK desired peace and that it only
undertook military actions in defence of its territory and the civilian population in its territory.693
However, David Harland and others testified that there was an organised campaign implemented in
Sarajevo, which was orchestrated at high political and military levels of the VRS, and that the
objectives of the campaign were multiple.694
1. Patterns of Sniping and Shelling of Sarajevo
194. The Trial Chamber heard extensive evidence regarding sniping and shelling of Sarajevo
during the Indictment period, both as part of military activity and as directed against civilians.
691 Indictment, para. 22. See also e.g. Prosecution Closing Brief, para. 4.
692 Defence Final Brief, para. 125.
693 Defence Final Brief, paras 75 – 77.
68
Case No IT-98-29/1-T 12 December 2007
195. The evidence indicates that during the Indictment period, the people living in the area of
Sarajevo within the confrontation lines were continuously shelled and sniped, although some
witnesses noted that the level of intensity varied, particularly with regard to shelling.695 Ewa
Tabeau, the Prosecution statistician and demographic expert, testified that her analysis of the
number of persons wounded as a result of sniping during the Indictment period indicated that the
level of sniping was almost constant, independent of the fluctuations and the intensity of the armed
conflict.696 Martin Bell recalled that the quieter periods tended to be around mid-winter and that
summer was always the worst.697 Many witnesses described the summer months of 1995 as the
most intensive period of sniping and shelling of the city, paralleling the most intensive fighting
between the two warring factions at the frontlines.698 Witnesses also described feeling a sense of
surprise and disquiet when there was no shelling on a particular day because shelling occurred so
regularly.699
196. John Jordan recalled that in nice weather, “people came out, made it a target-rich
environment and the snipers got busy.”700 An increase in sniping on both sides reportedly took
place from 25 June 1994.701 UNPROFOR reported that in the week ending 2 July 1995, sniper
activity had spread to the Old Town and areas to the west that were previously considered to be
reasonably safe.702
197. Berko Zeevi}, Prosecution expert on air bombs, testified that artillery and mortar
explosions were a daily occurrence in Sarajevo.703 Maj. Overgard testified that in November and
December 1994, he investigated incidents of shelling on a nearly daily basis, while Maj. Eimers, a
Dutch UNMO, testified that in November 1994 it was relatively quiet from the point of view of
shelling.704 Maj. Gen. Nicolai testified that the first few months of 1995 were “fairly quiet” and that
694 On 10 December 1994, David Harland wrote that Gen. Brinkman no longer found it useful to protest against
incidents, as they were dealing with an organised campaign: David Harland, P1, MT. 26955.
695 Martin Bell, 26 Apr 2007, T. 5240, 5243 – 5244; Milan Mandilovi}, 17 Jan 2007, T. 570, 18 Jan 2007, T. 621;
Bogdan Vidovi}, 13 Feb 2007, T. 2061; Sanjin Hasanefendi}, 16 Feb 2007, T. 2296; Ziba [ubo, P280, p. 2; W-57,
P538, p. 2 (under seal); Nefa [ljivo, P532, p. 2; Ismet Ali, P640, p. 8; Sead Be{i}, 20 Feb 2007, T. 2576; Mirza
Sabljica, 19 Apr 2007, T. 4695, 4735 – 4736.
696 Ewa Tabeau, 1 May 2007, T. 5504 – 5505; P637, Expert report Ewa Tabeau, pp 56 - 57. See also Sanjin
Hasanefendi}, 16 Feb 2007, T. 2296; W-12, 2 Mar 2007, T. 3074 – 3075; Rupert Smith, 7 Mar 2007, T. 3317 – 3318.
697 Martin Bell, 26 Apr 2007, T. 5240.
698 Bogdan Vidovi}, 13 Feb 2007, T. 2060 – 2061; Sanjin Hasanefendi}, 16 Feb 2007, T. 2296, 2372; W-12, 2 Mar
2007, T. 3075 – 3076; Mirza Sabljica, 19 Apr 2007, T. 4736; Martin Bell, 26 Apr 2007, T. 5243 – 5244, 5246; David
Harland, 15 Jan 2007, T. 327 – 330; P15, UNPROFOR sitrep, dated 3 June 1995, pp 2, 3. See also Rupert Smith, 7 Mar
2007, T. 3316 – 3318; John Jordan, P267, p. 10.
699 Ghulam Muhammad Mohatarem, 19 Jan 2007, T. 703; Hussain Ijaz, 27 Apr 2007, T. 5416; Ziba [ubo, P280, p. 2.
700 John Jordan, 21 Feb 2007, T. 2632. See also Sanela Dedovi}, 29 Jan 2007, T. 1176 – 1177.
701 David Fraser, 8 Feb 2007, T. 1871; P202, UNPROFOR report on anti-sniping measures, 25 June 1994, pp 1 - 2;
P207, UNPROFOR proposal of assessment of Anti-sniping Agreement, 15 September 1994, pp 4 - 5.
702 P19, UNPROFOR sitrep, 2 July 1995, p. 3.
703 Berko Zeevi}, 20 Apr 2007, T. 4818 – 4819.
704 Thorbjorn Overgard, 18 Jan 2007, T. 636; Ronald Eimers, 20 Apr 2007, T. 4799; Cornelis Hendrik Nicolai, 25 Jan
2007, T. 1007 – 1008.
69
Case No IT-98-29/1-T 12 December 2007
there was “anything from no firing incidents to a few hundred firing incidents” per day, in
comparison to May and June 1995, when there were a few thousand firing incidents in a day.705 The
level of shelling at the end of June 1995 was so high that the four teams of UNMOs deployed
around Sarajevo had to prioritise the incidents they investigated, based on whether or not there were
casualties, because they could not investigate them all.706 Lt. Com. Knustad recalled that in July and
August 1995, there were more than 100 impacts around the city per day.707 Gen. Smith stated that
during the later part of August 1995, tension around Sarajevo increased and a pattern of random
shelling by “the Serbs” of a few rounds a day was established by the end of that month.708
2. Sniping and Shelling by the SRK
198. Evidence was led that civilians and civilian areas in Sarajevo were sniped and shelled by the
SRK.709 According to Brig. Gen. Fraser, the Bosnian Serbs controlled “all the movement and
situation inside the city, including the psychological aspects of the city” and they used all means
available to them to retain that control through sniping and shelling.710 Kemal Bu}o testified “we
were cannon fodder. We were just clay pigeons for them to fire at. And they fired at will.”711 Martin
Bell, who has reported from 100 countries and 15 war zones, including the Vietnam War, the Gulf
War and Croatia, testified that “of all of the conflicts I have reported, I would say there was the
least distinction between soldiers and civilians when it came to targeting.”712 In response to
questions by the Trial Chamber, he testified that he had never previously seen the targeting of
civilians on the scale that existed during the conflict in Sarajevo and termed it “the second war”.713
199. The Trial Chamber notes the Defence submission that the “combat zones, as well as the
confrontation lines and everything in the vicinity of the confrontation line, were legitimate military
targets.”714 A number of witnesses, who were SRK soldiers during the Indictment period, testified
705 Cornelis Hendrik Nicolai, 24 Jan 2007, T. 940.
706 Thomas Knustad, 13 Feb 2007, T. 1992 – 1993; Asam Butt, 15 Feb 2007, T. 2192 – 2193.
707 Thomas Knustad, 13 Feb 2007, T. 1992 – 1993. See also Bogdan Vidovi}, 13 Feb 2007, T. 2066, recalled
conducting six to seven on-site investigations into shelling per day in July and August 1995.
708 Rupert Smith, P334, p. 22.
709 David Harland, 16 Jan 2007, T. 451 – 452; Thorbjorn Overgard, 18 Jan 2007, T. 635 – 636; Ghulam Muhammad
Mohatarem, 19 Jan 2007, T. 706 – 707; Cornelis Hendrik Nicolai, 24 Jan 2007, T. 965 – 966; W-118, 6 Feb 2007,
T. 1637; David Fraser, 7 Feb 2007, T. 1770 – 1771; Rupert Smith, 7 Mar 2007, T. 3310 – 3311; Vahid Karaveli},
27 Mar 2007, T. 4086; Martin Bell, 27 Apr 2007, T. 5288; Milan Pejic, 21 June 2007, T. 7044 – 7045; Louis Fortin,
P27, p. 7; Kemal Bu}o, P158, p. 2; Ronald Eimers, P585, pp 5 - 7; P20, UNPROFOR sitrep, 8 Jul 1995, p. 2; P232,
Photograph marked by Sanjin Hasanefendi}. See also infra, Sections II.E.3 Sniping during the Indictment Period,
II.E.4. Sniping Incidents Representative of the “Campaign” and II.E.6. Shelling Incidents Representative of the
“Campaign”.
710 David Fraser, 8 Feb 2007, T. 1825.
711 Kemal Buo, 2 Feb 2007, T. 1509 – 1510.
712 Martin Bell, 26 Apr 2007, T. 5236, 5238 – 5239.
713 Martin Bell, 27 Apr 2007, T. 5286 – 5287, 5288 – 5289.
714 Defence Final Brief, para. 38.
70
Case No IT-98-29/1-T 12 December 2007
that they did not fire on civilians and were ordered not to do so.715 In addition, there is some
evidence indicating that when there were casualties caused by sniping or shelling on ABiHcontrolled
territory, it was assumed that the firing had come from SRK-held territory.716
200. Throughout the war, the BiH police continued to investigate crimes, such as burglary or
homicide that were not necessarily related to the war.717 However, the police officers who came to
testify before the Trial Chamber gave evidence that in 1994 and 1995 their work predominantly
concerned investigation of incidents of sniping or shelling.718 The experience was comparable to
that of the police in other parts of Sarajevo, who received calls for assistance from all over
Sarajevo, at any time of the day or the night and all year round.719 A spreadsheet prepared by the
Prosecution and presented to the Trial Chamber through a police officer, showed that between 30
August 1994 and 9 November 1995, there were 214 sniping and shelling incidents investigated by
the BiH police.720
201. Several witnesses, police officers and UN personnel, testified about their investigations of
sniping and shelling during the Indictment period. W-116 stated that from 1993 until the end of the
conflict, 99 per cent of his work concerned crimes against civilians and that a large percentage of
the cases involving civilian deaths by sniping and shelling were committed by “the military”.721
Sanjin Hasanefendi}, a forensic officer with the BiH police, attended approximately 200 scenes of
shelling and 50 scenes of sniping from August 1994 to November 1995, while several others could
not be attended due to ongoing sniper fire.722 Lt. Col. Konings was involved in the investigations of
at least 100 sniping and shelling incidents, 40 or 50 of which involved civilian casualties.723 Maj.
Overgard estimated, in relation to the investigations he carried out in Hrasnica, that 30 to 40
civilians were killed as a result of shelling and sniping.724
715 Stevan Veljovi}, 30 May 2007, T. 5851; Siniša Krsman, 6 Jun 2007, T. 6296 – 6297; Luka Jovi}, 14 Jun 2007,
T. 6706 – 6708, 18 Jun 2007, T. 6727 – 6728; T-39, 21 Jun 2007, T. 7014; T-48, 22 June 2007, T. 7177, 7179 – 7181;
Radomir Visnji}, 26 Jun 2007, T. 7294; T-52, 28 Jun 2007, T. 7472 – 7476; Milan Mandi}, 4 Jul 2007, T. 7611; Vlajko
Bozi, 17 Jul 2007, T. 8483 – 8484, 8477 – 8479; Borislav Kovaevi, 10 Jul 2007, T. 7912 – 7913, 7918 – 7919, 7949
– 7950, 7954; T-15, 13 Jul 2007, T. 8332 – 8334; Ne|eljko U~ur, 26 Jul 2007, T. 8912, 8923 – 8926, 8931; Stjepan
Djukic, 3 Jul 2007, T. 7537 – 7538.
716 David Harland, 16 Jan 2007, T. 406; Ghulam Muhammad Mohatarem, 19 Jan 2007, T. 729 – 730.
717 W-138, 1 Feb 2007, T. 1401 – 1402; Sanjin Hasanefendi}, 16 Feb 2007, T. 2291 – 2292.
718 Bogdan Vidovi}, 13 Feb 2007, T. 2066; W-116, 17 Apr 2007, T. 4616; Vekaz Turkovi}, 25 Apr 2007, T. 5180.
719 Vekaz Turkovi}, 25 Apr 2007, T. 5180, 5212 – 5213.
720 P602, Spreadsheet showing law enforcement reports from Sarajevo. The Trial Chamber notes that the spreadsheet
lists 215 incidents. One incident is listed twice (no. 28).
721 W-116, P549, p. 2 (under seal).
722 Sanjin Hasanefendi}, 16 Feb 2007, T. 2292, 2295 – 2296. See also Mirza Sabljica, 19 Apr 2007, T. 4696; W-138,
30 Jan 2007, T. 1206.
723 Harry Konings, 12 Mar 2007, T. 3554 – 3555.
724 Thorbjorn Overgard, 18 Jan 2007, T. 652.
71
Case No IT-98-29/1-T 12 December 2007
202. Bogdan Vidovi}, a forensic officer with the BiH police, testified that it was not determined
in any of the investigations of sniping and shelling that the origin of fire was the ABiH.725 Sanjin
Hasanefendi} and W-28 said that they never investigated a case in which it turned out that the
victim was killed as a result of being involved in military activity or where the incident took place
in the course of a combat operation.726
203. In addition, John Jordan testified that most of the fire against the GOFRS volunteers came
from the SRK and usually from high ground or a building.727 In determining the side responsible for
firing at them, John Jordan and the GOFRS volunteers took into account their knowledge of who
controlled particular buildings and what threat those occupied buildings posed to their operations on
a daily basis.728 He also stated that he was told that throughout the war, local fire fighters were
informed by former colleagues “on the Serb side” that there would be shooting along certain routes,
enabling them to avoid those areas when getting to a fire.729
3. Sniping during the Indictment Period
204. Both armies had snipers.730 According to Brig. Gen. Fraser, the Bosnian Serb snipers were
very skilled.731 For example, after arriving at their positions, Bosnian Serb snipers fired at a
telephone pole to indicate that they were there, fired a couple of shots to check windage and
distance and “to set themselves up for the day’s activities”, and, at the end of the day, they
sometimes shot at one of the UN vehicles “to announce” that they were leaving.732
205. There is evidence that not all the sniping of civilians was intentional. For example, while
some civilians were intentionally targeted, others were killed by stray bullets during an exchange of
fire between the opposing forces, particularly due to the proximity of the confrontation lines to
civilian areas.733 Brig. Gen. Fraser testified that ricochets were very possible.734 However,
725 Bogdan Vidovi}, 13 Feb 2007, T. 2065 – 2066; See also Sanjin Hasanefendi}, 16 Feb 2007, T. 2296 – 2297; John
Jordan, 21 Feb 2007, T. 2636 – 2637, 2640.
726 Sanjin Hasanefendi}, 16 Feb 2007, T. 2296; W-28, 22 Feb 2007, T. 2723.
727 John Jordan, 21 Feb 2007, T. 2636, P267, p. 6.
728 John Jordan, 21 Feb 2007, T. 2640 – 2641.
729 John Jordan, P267, p. 5.
730 David Harland, 16 Jan 2007, T. 407, 459; David Fraser, 7 Feb 2007, T. 1762; Ismet Hadži, 6 Mar 2007, T. 3228 –
3232, 3284; Martin Bell, 27 Apr 2007, T. 5288; Stevan Veljovi, 30 May 2007, T. 5835; T-2, 20 Jun 2007, T. 6920,
6922, 6936; John Jordan, P267, p. 8; Vahid Karaveli, P493, p. 8, P494, GT. 11950 – 11953; P6, UNPROFOR cable on
violation of Anti-sniping Agreement, 12 September 1994; P680, Order to prepare for training in 1995, dated 5 January
1995; P684, Order on assigning and dispatching sniper instructors, dated 19 January 1995; P688, Order by the SRK
Commander to train SRK units, dated 29 January 1995, p. 1; P763, Request for equipment and snipers for Rajlovac
Brigade, 25 June 1992; P206, Anti-Sniping Agreement, 14 August 1994. Cf. Sini{a Krsman 6 June 2007, T. 6288 –
6291, 6293; Vlajko Bo`i, 17 July 2007, T. 8404 – 8405, 8446 – 8447; Milan Mandi, 4 July 2007, T. 7594, 7595;
Dženana Sokolovi}, 22 Jan 2007, T. 808 – 809. See also supra, paras 69, 77.
731 David Fraser, 7 Feb 2007, T. 1789. See also W-156, P625, p. 34 (under seal).
732 David Fraser, 7 Feb 2007, T. 1789.
733 Mirza Sabljica, 19 Apr 2007, T. 4756, 4758; W-138, 1 Feb 2007, T. 1413 – 1414.
72
Case No IT-98-29/1-T 12 December 2007
Maj. Gen. Nicolai testified that while it was difficult to determine whether the targeting of civilians
was deliberate in all cases, “considering the quality of the Bosnian Serb forces, when that happened,
it was deliberate.”735
(a) Sniping by the SRK
206. The Trial Chamber heard evidence that civilians inside the confrontation lines were killed or
injured as a result of sniping from SRK-held territory.736
207. Lt. Van der Weijden testified that a shooter would be able to distinguish between a
combatant and a non-combatant.737 He cited a number of factors that would enable a sniper to make
such a distinction: in the case of a child, the comparative height between the adult and the child; the
difference in the type of movement of an individual, for example, a combatant would not carry a
bundle of wood out in the open but would, instead, move quickly between positions and make use
of the cover around him; colour of clothing, hairstyles, accessories; the absence of weapons.738 In
sum, he teestified that, “it’s just the little things that add up to making conclusions.”739 He further
testified that some of the sniping incidents he reported on involved longer distances, for example,
between 600 to 800 metres in cloudy conditions, over which it is very difficult to distinguish
between a civilian or non-combatant and a combatant.740 However, under the rules of engagement,
one is only allowed to fire a shot after positive identification of the target and until that has been
done, the sniper should withhold his fire.741
208. Snipers targeted places where civilians gathered, including, for example, markets, trams and
where people queued for food and water.742 Sometimes snipers would shoot at the water containers
people were carrying.743 Witnesses recalled going to collect water late at night or very early in the
morning to avoid sniping.744
734 David Fraser, 8 Feb 2007, T. 1866, 1875 – 1876.
735 Cornelis Hendrik Nicolai, 24 Jan 2007, T. 962.
736 Bakir Naka{, 25 Jan 2007, T. 1071; Thorbjorn Overgard, 18 Jan 2007, T. 648 – 649. Ismet Had`i}, 6 Mar 2007,
T. 3222; Milan Mandi}, 4 Jul 2007, T. 7609; Sanela Dedovi, P110, p. 2; W-95, P520, p. 2 (under seal); Nefa [ljivo,
P531, p. 2. See also infra, Section II.E.3. Sniping during the Indictment Period, II.E.4. Sniping Incidents Representative
of the “Campaign”.
737 Patrick van der Weijden, 29 Mar 2007, T. 4278 – 4280.
738 Patrick van der Weijden, 29 Mar 2007, T. 4278 – 4280.
739 Patrick van der Weijden, 29 Mar 2007, T. 4280.
740 Patrick van der Weijden, 29 Mar 2007, T. 4286 – 4287.
741 Patrick van der Weijden, 29 Mar 2007, T. 4286 – 4287.
742 Azra [i{i}, 27 Feb 2007, T. 2830 – 2832; David Harland, P1, MT. 26956; Rialda Musaefendi}, P295, p. 4; Alija
Holjan, P526, pp 2 - 3;.P19, UNPROFOR sitrep, 2 July 1995, p. 3.
743 Rialda Musaefendi}, P295, p. 4.
744 Azra [i{i}, 27 Feb 2007, T. 2831; Rialda Musaefendi}, P295, p. 4.
73
Case No IT-98-29/1-T 12 December 2007
209. Rialda Musaefendi} recalled that two drivers were killed trying to deliver bread.745 On one
occasion, she saw that the bread had bullets in it as a result of the truck being fired on by Bosnian
Serbs.746 Shots were fired at work parties and people carrying out repairs on tram tracks or power
lines.747 In order not to get hit by sniper fire, people drove at high speed, and this sometimes
resulted in car accidents.748 W-138 testified: “People were being killed by snipers while they were
running across streets. I myself had to run away from snipers when I tried to cross the street because
people in civilian clothes crossing the streets were particularly targeted by snipers.”749
210. The level of sniping meant that it was not possible for emergency vehicles to respond to
emergency calls; in general, people were taken to the hospital by others who were at the scene of
the sniping or shelling.750 John Jordan testified that the GOFRS volunteers would respond to the
casualties, particularly if the victim was wounded and in an exposed position, because GOFRS had
an armoured ambulance.751
211. Although Bogdan Vidovi} testified that it was hard to single out a particular neighbourhood
in Sarajevo that was more susceptible to sniping than another, other witnesses identified specific
areas that were known to be used by snipers and to be particularly dangerous for civilians.752
Dangerous places were marked with warning signs, which read, “Sniper fire: Watch out, don’t go
there.”753 Generally, these areas were short distances from the confrontation lines.754 According to
Ismet Hadži}, year after year, snipers would shoot from one location for a day or two, following
which it would be quiet for 15 to 20 days before the spot was “reactivated” for a couple more
days.755 He explained that all these “hot spots” were on Bosnian Serb-held territory.756
212. On the question of SRK snipers, Maj. Veljovi} said “if we had any snipers, we probably did
have, they could only be deployed on our positions to target enemy soldiers and we were not within
the range of the city. Our snipers were not within the range of the city. ….”757
745 Rialda Musaefendi}, P295, p. 4.
746 Rialda Musaefendi}, P295, p. 5.
747 Avdo Vatri, P647, pp 7, 12.
748 John Jordan, P267, pp 5 - 6.
749 W-138, 1 Feb 2007, T. 1414.
750 W-62, 23 Jan 2007, T. 888; John Jordan, P267, p. 4; P613, Videoclip of sniping on Zmaja od Bosne; P622,
Videoclip of events in Sarajevo; P623, Videoclip of events in Sarajevo. See also infra, Section II.E.4. Sniping Incidents
Representative of the “Campaign”.
751 John Jordan, 21 Feb 2007, T. 2662.
752 Bogdan Vidovi}, 13 Feb 2007, T. 2063. See also, W-62, 24 Jan 2007, T. 925 – 926; W-138, 1 Feb 2007, T. 1405 –
1406; Nefa [ljivo, P531, p. 2; Fikreta Pa~ariz, P643, p. 9; Avdo Vatri, P647, p. 7.
753 W-138, 1 Feb 2007, T. 1405 – 1406; W-118, P175, p. 3 (under seal).
754 Cornelis Hendrik Nicolai, 24 Jan 2007, T. 965 – 966; Ghulam Muhammad Mohatarem, 19 Jan 2007, T. 706.
755 Ismet Had`i}, 6 Mar 2007, T. 3222.
756 Ismet Had`i}, 6 Mar 2007, T. 3220 – 3222.
757 Stevan Veljovi}, 30 May 2007, T. 5835.
74
Case No IT-98-29/1-T 12 December 2007
213. In light of the evidence outlined in this section, the Trial Chamber does not accept
Maj. Veljovi}’s testimony that the SRK did not use snipers to target the city.
(i) Public Transport
214. Trams and people on trams were targeted.758 On days that they worked, trams were the
primary means of transportation.759 Furthermore, trams were hugely symbolic for people in
Sarajevo.760 According to Brig. Gen. Fraser:
“trams were a favourite target of snipers inside of Sarajevo because of the psychological impact it
had on the people of Sarajevo. The people looked to the tram, and if it was running, things were
reasonably good; if it was stopped, it meant that the situation was grave and that sent shudders
throughout the city. So shooting at a tram had a significant psychological impact on the city.”761
215. According to Avdo Vatri, the sniping of trams was a “common occurrence”; the tram
company, GRAS, tried to protect the tram drivers by putting steel plate on the area in which they
sat.762 Slavica Livnjak stated that, as a tram driver, she was exposed to dangerous situations all the
time.763
216. In addition to being a target of sniper fire, trams were also targeted by shelling, forcing
trams to the depot, which was also shelled “on many occasions”, destroying several trams.764 It had
to be determined on a daily basis whether it was safe to operate trams that day.765 According to
witnesses, the Bosnian Muslim authorities decided whether the trams would run.766
217. Trams were vulnerable on the street Zmaja od Bosne, the so-called ‘Sniper Alley’,
especially in the area between the Museum and the Holiday Inn where the tram tracks bend, making
an S-curve.767 Slavica Livnjak remembered bending her head every time she drove past Holiday
Inn.768 Trams were also particularly vulnerable in the areas of the Marshal Tito Barracks, Pofali}i
758 Milan Mandilovi}, 18 Jan 2007, T. 600; Mirza Sabljica, 19 Apr 2007, T. 4733 – 4734; Martin Bell, 26 Apr 2007,
T. 5249; Slavica Livnjak, P95, p. 2; W-118, P175, p. 2 (under seal); Alija Holjan, P526, p. 2; Avdo Vatri, P647, pp 8,
13; P10, UNPROFOR weekly sitrep, dated 10 December 1994, p. 7; P614, Videoclip of sniping of tram.
759 Slavica Livnjak, 23 Jan 2007, T. 875 – 876; Avdo Vatri, P647, p. 8; David Fraser, 8 Feb 2007, T. 1879 – 1880.
760 Martin Bell, 26 Apr 2007, T. 5249.
761 David Fraser, 7 Feb 2007, T. 1793.
762 Avdo Vatri, P647, p. 8. See also Mirza Sabljica, 19 Apr 2007, T. 4733 – 4734.
763 Slavica Livnjak, P95, p. 2.
764 W-54, 6 Feb 2007, T. 1692 – 1693. See also Avdo Vatri, P647, pp 7 - 8, 12.
765 W-118, 6 Feb 2007, T. 1635, 1638 – 1639, P175, p. 2 (under seal); Slavica Livnjak, P95, p. 2. See also P11, Report
on implementation of COHA, 29 March 1995, p. 1.
766 David Fraser, 8 Feb 2007, T. 1880; W-118, 6 Feb 2007, T. 1624 – 1625.
767 Slavica Livnjak, 23 Jan 2007, T. 870, P94, p. 2, P95, p. 2; W-91, 15 Mar 2007, T. 3800 – 3801; Martin Bell, 26 Apr
2007, T. 5249; D`emaludin Luinovi}, P298, p. 2; Avdo Vatri, P647, p. 12; P583, Photograph marked by Mirza
Sabljica; See also infra, Section II.E.4(b)(i) Sniping of Targets on Zmaja od Bosne.
768 Slavica Livnjak, P95, p. 3.
75
Case No IT-98-29/1-T 12 December 2007
and close to the Bristol Hotel.769 Witnesses said that the trams were fired upon by the SRK from
Grbavica.770 Brig. Gen. Fraser expressed the view that rather than aiming generally at a moving
tram, snipers would probably try to pick out a target inside that tram, since a sniper with the skill of
a Bosnian Serb sniper looking onto Zmaja od Bosne would be unlikely to hit a tram by a mistake.771
218. A number of witnesses expressed their view that trams are not military targets. Avdo Vatri
stated that, to the best of his knowledge, the ABiH never allowed the movement of troops or
equipment using a GRAS tram or bus.772
219. Lt. Van der Weijden noted in his expert report that a tram is a means of public transport for
civilians.773 Lt. Van der Weijden testified that a tram is not well-suited for military use or
transportation of military personnel because it is a relatively slow-moving vehicle, it is not able to
deviate from the tracks, it is often brightly coloured, has lots of windows and is not armoured.774
There was no reason to identify a tram as a threat, or its passengers as combatants.775 He also said
that it would be “very possible” for a sniper in Grbavica to know that he was shooting at a tram on
Zmaja od Bosne, as distinct from a military vehicle.776 This was confirmed by Col. Stamenov, who
testified that from a distance of 312 metres, it is not possible to mistake a tram for any kind of
legitimate military target, “if the tram is clearly visible”.777 Lt. Van der Weijden also stated that as
previous incidents with civilian victims where trams had been fired upon were widely reported in
the media, it must have been known to snipers that only civilians used the trams.778
220. In addition to sniping, the operation of trams was impeded by the irregular power supply.
According to Avdo Vatri, turning off the power supply is the simplest and fastest way to disable a
tram network.779 The Bosnian Serbs controlled Reljevo transformer station and, as such, in 1994
and 1995, they could stop the operation of the trams if they chose to, which, according to Avdo
769 Slavica Livnjak, 23 Jan 2007, T. 870 – 871, P95, p. 2; Kemal Buo, P158, p. 2; D22, Map marked by Slavica
Livnjak showing dangerous areas for trams along Sniper alley (“Map marked by Slavica Livnjak”).
770 Bogdan Vidovi}, 13 Feb 2007, T. 2065; Slavica Livnjak, P95, p. 3; Sabina [abani}, P153, p. 2; Kemal Buo, P158,
p. 2. See also, Section II.E.4(b)(i) Sniping of Targets on Zmaja od Bosne.
771 David Fraser, 7 Feb 2007, T. 1793, 1795.
772 Avdo Vatri, P647, p. 8.
773 P514, Expert report Patrick van der Weijden, p. 38.
774 Patrick van der Weijden, 29 Mar 2007, T. 4284 – 4285; P514, Expert report Patrick van der Weijden, pp 21, 27, 30,
34, 38.
775 P514, Expert report Patrick van der Weijden, pp 21, 27, 30, 34, 38.
776 Patrick van der Weijden, 29 Mar 2007, T. 4285.
777 Ivan Stamenov, 22 Aug 2007, T. 9078.
778 P514, Expert report Patrick van der Weijden, pp 21, 27, 30, 34, 38.
779 Avdo Vatri, P647, p. 6.
76
Case No IT-98-29/1-T 12 December 2007
Vatri, they “often” did.780 Avdo Vatri said that “it seemed as though the Serbs would allow the
trams to start operating just so that they could shoot at the passengers on the trams.”781
221. Buses were also subject to sniping as well as shelling.782 In 1995, a bus line was established
in Dobrinja to “do away with the fear of the siege.”783 Buses operated to take people who were
under work obligation, that is, obligatory civilian engagement for the war effort, to their place of
work.784 Those that remained road-worthy ran throughout cease-fires.785 Buses did not drive along
the same routes as those taken by the trams.786
222. With respect to all incidents of sniping of trams, the Defence argued that the evidence shows
that the trams were running just behind the confrontation lines and through an area where there was
almost constant fighting going on.787 The Defence also submitted that the “Bosnian authorities
preferred to have the trams used” despite the existence of a street further away from the
confrontation line, along which buses could have operated safely.788
223. The Trial Chamber finds that the evidence does not support these submissions. On the
contrary, the evidence shows that trams did not run during periods when there was combat activity
and that trams were told to return to the depot if combat activity began. The Trial Chamber also
notes that the bus line that was established to carry people on an alternative route to ‘Sniper Alley’
also came under fire.
224. Further, on the basis of the evidence, the Trial Chamber is satisfied that the trams targeted in
the city of Sarajevo had civilian status. In this regard, the Trial Chamber notes that all evidence
shows that a tram is not suitable for military use. Furthermore, it was a well-known fact among
people living in Sarajevo that civilians used the trams. This was also made clear from media reports
during the relevant time period. The fact that one or two soldiers were travelling on a tram which
was targeted by sniper fire does not change its civilian status.
780 Avdo Vatri, P647, pp 6, 7, 12.
781 Avdo Vatri, P647, p. 8.
782 Slavica Livnjak, 23 Jan 2007, T. 875 – 876; W-35, 23 Jan 2007, T. 840 – 841; W-138, 31 Jan 2007, T. 1325 – 1326;
Ismet Had`i}, 6 Mar 2007, T. 3237.
783 Ismet Had`i}, 6 Mar 2007, T. 3237.
784 Milomir [oja, 24 Apr 2007, T. 5113; Slavica Livnjak, 23 Jan 2007, T. 876.
785 W-35, 23 Jan 2007, T. 840 – 841.
786 Slavica Livnjak, 23 Jan 2007, T. 875.
787 Defence Final Brief, para. 179.
788 Defence Final Brief, paras 88, 101.
77
Case No IT-98-29/1-T 12 December 2007
(ii) Marindvor and Zmaja od Bosne
225. Milan Mandilovi} testified that there was an excellent view of Marindvor from the Jewish
Cemetery and that the distance the snipers had to shoot from the Jewish Cemetery and Grbavica to
Marindvor was short.789 Marindvor was a dangerous place because it was in the open, causing
people to run across the street and it was a matter of luck whether they were hit or not.790
226. The most infamous place for sniping was the street Zmaja od Bosne, which ran along the
city’s east-west axis; it was under constant sniper fire.791 According to an UNPROFOR report, in
early July 1995, “despite the reduction in military activity around the city, the harassment by
sniping and shelling of the civilian population continues almost unabated. ... Almost no civilians
now use the city’s main east-west thoroughfare (‘Sniper Alley’) – so much so that snipers who used
to work that area now seem to have relocated ….”792
227. The area of Zmaja od Bosne around the Museum and the Holiday Inn was particularly
vulnerable.793 In the experience of Martin Bell, most of the sniping incidents happened in the area
in front of the Holiday Inn and about 400 to 500 metres to the East in what became known as
“Snipers’ Corner”.794 Martin Bell expressed the view that ‘Sniper Alley’ and areas around the
Museum and the Holiday Inn were especially vulnerable because people mostly lived on the west
side of the city but went to jobs in the centre.795
228. There were a number of buildings in the vicinity of Zmaja od Bosne, principally on the
south bank of the Miljacka River in SRK-held territory, where snipers could get into good
positions.796 Witnesses testified that the source of the sniper fire along ‘Sniper Alley’ was Grbavica
in SRK-held territory; the Metalka Building and the “sky-scrapers”, high-rise buildings in Grbavica,
were well-known SRK sniper positions.797 The “sky-scrapers” were located on Lenjinova Street,
789 Milan Mandilovi}, 17 Jan 2007, T. 565 – 566. See also, Avdo Vatri, P647, p. 12.
790 W-118, P175, p. 3 (under seal).
791 Ghulam Muhammad Mohatarem, 19 Jan 2007, T. 706 – 707; David Fraser, 8 Feb 2007, T. 1879; Bogdan Vidovi},
13 Feb 2007, T. 2063; Sabina [abani}, 2 Feb 2007, T. 1474 – 1475; Asam Butt, 14 Feb 2007, T. 2161 – 2162; Sanjin
Hasanefendi}, 16 Feb 2007, T. 2298, 2304; Martin Bell, 26 Apr 2007, T. 5241; Alma Mulaosmanovi}, P179, p. 2;
D`emaludin Luinovi}, P298, p. 2; Fikreta Pa~ariz, P643, p. 9; P9, UNPROFOR daily sitrep, 25 November 1994, p. 5;
P195, Map marked by David Fraser; P201, Photograph marked by David Fraser; P609, Video sniping in Sarajevo.
792 P20, UNPROFOR sitrep, 8 July 1995, p. 2.
793 Ghulam Muhammad Mohatarem, 19 Jan 2007, T. 706 – 707; Asam Butt, 14 Feb 2007, T. 2161 – 2162; Martin Bell,
26 Apr 2007, T. 5241; Slavica Livnjak, P95, p. 2; P9, UNPROFOR daily sitrep, 25 November 1994, p. 5; P760,
UNPROFOR sitrep, 10 December 1994, p. 3. See also supra, II.E.3(a)(i) Public Transport.
794 Martin Bell, 27 Apr 2007, T. 5285.
795 Martin Bell, 26 Apr 2007, T. 5241; P609, Videoclip sniping in Sarajevo; Sabina [abani}, 2 Feb 2007, T. 1474 –
1475.
796 David Fraser, 7 Feb 2007, T. 1761 – 1762, 1777 – 1778.
797 See, e.g., Ghulam Muhammad Mohatarem, 19 Jan 2007, T. 706 – 707; W-118, 6 Feb 2007, T. 1622 – 1623, 1636,
P174, p. 2 (under seal); Alija Holjan, 4 Apr 2007, T. 4473, P525, p. 2, P526, p. 3; Bogdan Vidovi}, 13 Feb 2007,
T. 2063, 14 Feb 2007, T. 2112; Mirza Sabljica, 19 Apr 2007, T. 4732, 4760 – 4761; Vahid Karaveli}, 27 Mar 2007,
78
Case No IT-98-29/1-T 12 December 2007
directly across the Marshal Tito Barracks.798 The Metalka Building was located at the end of Franje
Rakog Street, across the Miljacka River, about 300 metres from the Holiday Inn and the
Museum.799 Rooms in the higher floors of this building offered a direct and clear view of the area
between the National Museum and the Faculty of Philosophy.800 Milorad Kati} suggested that, if
there were snipers in the Metalka Building, it would have been possible to fire at trams on ‘Sniper
Alley’ from there.801 The SRK was also positioned in the Invest Bank Building and their snipers
could fire from the top of this building onto Zmaja od Bosne.802
229. Milorad Kati} distinguished between shooting and sniping and rejected the proposition that
there were snipers positioned in Grbavica.803 He testified that while he saw men with rifles going in
and out of the Metalka Building, the rifles did not have telescopic sights.804 However, he also
agreed that there were men with rifles positioned on the upper floors of the Metalka Building and
the Invest Bank Building, and that the two streets that ran parallel to each other from these
buildings, could form a “funnel” through which one could hit targets on Zmaja od Bosne.805 He
further agreed that “a human being could be effectively engaged from those buildings on the VRS
side of the river to Marindvor with or without a telescopic sight.”806
T. 4088, 4090; Huso Palo, 5 Feb 2007, T. 1535, 1547, P162, p. 2; W-35, 22 Jan 2007, T. 824; P92, p. 3 (under seal);
Dženana Sokolovi, 22 Jan 2007, T. 787, 807 – 808; Milorad Kati}, 5 June 2007, T. 6157; David Harland, P1,
MT. 26962; Kemal Buo, P158, p. 2; Fikreta Pa~ariz, P643, p. 9; Avdo Vatri, P647, p. 12; D20, Photograph marked by
W-35; P161, Official note, p. 2; P176, Map marked by W-118; P181, Photograph marked by Alma Mulaosmanovi;
P201, Photograph marked by David Fraser; D215, Map marked by Vaso Elez; P515, Photograph marked by Patrick van
der Weijden; P754, Photograph marked by Milorad Kati}; P941, Videoclip of sniping incident (under seal). See also
e.g. Sniping of an UNPROFOR soldier from the Metalka Building, 15 April 1995, Asam Butt, 14 Feb 2007, T. 2161 –
2165, 15 Feb 2007, T. 2167 – 2171, 2190 – 2192, 2246 – 2253; W-46, 15 Mar 2007, T. 3834 – 3836 (closed session);
P222, Photograph marked by Asam Butt; P223, Photograph marked by Asam Butt; D68, Photograph marked by Asam
Butt. Cf. Alen Gievi, 5 Feb 2007, T. 1569.
798 P104, Street map of Sarajevo; P157, Photograph marked by Sabina Šabani; P181, Photograph marked by Alma
Mulaosmanovi}; D215, Map marked by Vaso Elez.
799 See, e.g., W-35, 22 January 2007, T. 831, P92, p. 3 (under seal); John Jordan, 21 Feb 2007, T. 2652; P515,
Photograph marked by Patrick van der Weijden; P97, Photograph marked by Slavica Livnjak; P166, Photograph
marked by Alen Gievi; P222, Photograph marked by Asam Butt; P223, Photograph marked by Asam Butt; P583,
Photograph marked by Mirza Sabljica; P754, Photograph marked by Milorad Kati}; C14, Photographs taken during site
visit, pp 14 - 18, 24 - 29; C3, Photographs taken during site visit, pp 12 - 20.
800 Slavica Livnjak, 23 Jan 2007, T. 862; Patrick van der Weijden, 29 Mar 2007, T. 4279, 4283; Mirza Sabljica, 19 Apr
2007, T. 4732, 4760; P97, Photograph marked by Slavica Livnjak; P166, Photograph marked by Alen Gievi; P222,
Photograph marked by Asam Butt; P223, Photograph marked by Asam Butt; P514, Expert report Patrick van der
Weijden, p. 32; P515, Photograph marked by Patrick van der Weijden; P583, Photograph marked by Mirza Sabljica;
P754, Photograph marked by Milorad Kati}; C3, Photographs taken during site visit, pp 1, 4 - 5, 7 - 11, 13 - 20; C14,
Photographs taken during site visit, pp 24 - 29.
801 Milorad Kati}, 4 June 2007, T. 6093; P754, Photograph marked by Milorad Kati}.
802 Milorad Kati}, 4 June 2007, T. 6092 – 6093, 5 June 2007, T. 6157 – 6158; Vaso Elez, 7 June 2007, T. 6375 – 6376,
6378; Radomir Visnji}, 26 June 2007, T. 7286 – 7287; P754, Photograph marked by Milorad Kati}; P764, Photograph
marked by Vaso Elez; D217, Interim combat report by Fikret Prevljak, 1 July 1995; D220, Photograph marked by Vaso
Elez.
803 Milorad Kati}, 4 June 2007, T. 6106.
804 Milorad Kati}, 4 June 2007, T. 6100 – 6101; 6106 – 6107.
805 Milorad Kati}, 4 June 2007, T. 6106 – 6107. See also Patrick van der Weijden, 29 Mar 2007, T. 4282; P515,
Photograph marked by Patrick van der Weijden; Vaso Elez, 7 June 2007, T. 6376.
806 Milorad Kati}, 4 June 2007, T. 6107.
79
Case No IT-98-29/1-T 12 December 2007
230. A number of witnesses recounted their visits to Bosnian Serb sniper nests in Grbavica.807
For example, Brig. Gen. Fraser recounted how, escorted by Bosnian Serbs, he visited a SRK sniper
nest in a three- or four-storey red brick building in Grbavica in the spring or summer of 1995.808 He
saw “spider holes” punched in the wall of the building, from where one could look towards the
Bosnian Muslim side of the Miljacka River, which he concluded were good positions for snipers.809
On being confronted with the testimony of witnesses who had visited SRK sniper nests in Grbavica,
Milorad Kati} testified that at the time of his visit, there were “just rank-and-file soldiers of the
Republika Srpska army. They were not specials. They were not snipers.”810
(iii) Other Sniping Locations
231. Other areas that were particularly exposed to sniping were concentrated around intersections
and bridges across the Miljacka River.811 For instance, the Butmir Bridge and civilians using the
bridge were targeted.812 Sokolovi}i, Skenderija, the railway station and the area near Koševo
Stadium were also under “constant” sniper fire, as was Dobrinja.813
232. There were SRK sniper positions in the hills around Sarajevo.814 Witnesses testified that
people were killed by fire from Špicasta Stijena,815 Mount Trebevi,816 Vraca,817 the Jewish
Cemetery, and the curve of the Lukavica-Pale road above Skenderija, precisely above Debelo
Brdo.818 Rijalda Musaefendi testified that there were Bosnian Serb snipers in the hills above
807 Louis Fortin, 16 Jan 2007, T. 490, P27, p. 8; W-46, 16 Mar 2007, T. 3913 (closed session); David Harland, P1,
MT. 26963.
808 David Fraser, 7 Feb 2007, T. 1776; P201, Photograph marked by David Fraser.
809 David Fraser, 7 Feb 2007, T. 1777 – 1778.
810 Milorad Kati}, 4 June 2007, T. 6105
811 Sanjin Hasanefendi}, 16 Feb 2007, T. 2297, 2304; Ismet Had`i}, 6 Mar 2007, T. 3220 – 3222; Harry Konings,
13 Mar 2007, T. 3554 – 3555; Alen Gievi, P164, p. 2; Alma Mulaosmanovi}, P179, p. 2; Azem Agovi, P211, p. 1;
D`emaludin Luinovi}, P298, p. 2; P232, Photograph marked by Sanjin Hasandefendi}.
812 Thorbjorn Overgard, 18 Jan 2007, T. 651 – 652; P203, UNPROFOR report on incidents of 6 and 7 September 1994,
dated 14 September 1994 (“UNPROFOR report, 14 September 1994”); Ronald Eimers, P585, p. 9.
813 Ismet Ali, P640, p. 8; Avdo Vatri, P647, p. 12; W-82, P228, p. 2; Harry Konings, 13 Mar 2007, T. 3604; Sanela
Dedovi, P110, p. 2; Ned`ib \ozo, 14 Mar 2007, T. 3695 – 3696; Azra [i{i}, 27 Feb 2007, T. 2861; Enes Jašarevi},
1 Mar 2007, 3020 – 3021; P304, Map marked by Enes Jašarevi}.
814 Patrick van der Weijden, 29 Mar 2007, T. 4295; Stevan Veljovi, 30 May 2007, T. 5851–5852; Derviša Selmanovi,
P170, p. 3; W-95, P520, p. 2 (under seal). See also Rijalda Musaefendi, 28 Feb 2007, T. 2932 – 2933.
815 Tarik Zuni, 7 Feb 2007, T. 1728, P185, p. 2; David Fraser, 7 Feb 2007, T. 1773 – 1774; Harry Konings, 13 Mar
2007, T. 3604; Ned`ib \ozo, 14 Mar 2007, T. 3694 – 3696, P363, p. 2; Vahid Karaveli}, 27 Mar 2007, T. 4088;
Derviša Selmanovi, P170, p. 3; Siniša Krsman, 6 June 2007, T. 6294 – 6295.
816 W-12, 1 Mar 2007, T. 3042, 2 Mar 2007, T. 3065, 3068 – 3069, P307, p. 2 (under seal); Stevan Veljovi, 24 May
2007, T. 5724 – 5727; Predrag Trapara, 27 June 2007, T. 7373 – 7374; Derviša Selmanovi, P170, p.3; Azem Agovi,
P211, p. 1; Ned`ib \ozo, P363, p. 2; P104, Street map of Sarajevo; P910, Video of sniping position in Mount Trebevi}.
817 Alma Mulaosmanovi}, 6 Feb 2007, T. 1673 – 1674.
818 Vahid Karaveli}, 27 Mar 2007, T. 4088 – 4089; Mirza Sabljica, 19 Apr 2007, T. 4744; Milan Mandi, 4 July 2007,
T. 7595. The Trial Chamber recalls that evidence indicating that both the Jewish cemetery and Debelo Brdo were held
by both the VRS and the ABiH. See supra Section II.B.3. Areas of Responsibility and Confrontation Lines -SRK and 1st
Corps of the ABiH.
80
Case No IT-98-29/1-T 12 December 2007
Hrasno and in the Grbavica Stadium.819 Many witnesses testified that Špicasta Stijena and the
Jewish Cemetery were very active sniping positions used by the SRK.820 Ned`ib \ozo testified that
approximately 100 civilians were wounded and killed in Sedrenik by sniper fire from [picasta
Stijena during the conflict.821 Martin Bell testified that he visited a number of sniper positions in
Bosnian Serb-held territory, most of which were on the “high road to Pale”, including a position at
Trebinje to which, in the words of Martin Bell, “Karad`i} liked to take us.”822
233. Nearii, which was under the control of the Bosnian Serb forces, was also a source of
sniper fire.823 The Trial Chamber heard evidence that shooting came from the School of the Blind, a
centre for blind children and children with impaired vision, a two-storey building located in
Neari}i.824 The School of the Blind was close to apartment buildings in Vojniko Polje, Alipašino
Polje, and Osloboenja, which were ABiH-held areas.825
(b) Anti-sniping Measures
234. Anti-sniping barriers, in the form of large screens, improvised walls, blankets, transport
containers and old trucks, were set up around the city in order to block the view of the snipers and
provide people some cover against sniping.826 Bogdan Vidovi} said that the containers only offered
limited protection; sometimes a bullet would pass through a container and hit a person behind it and
sometimes the snipers would fire over a container onto the people behind it.827
819 Rijalda Musaefendi, 28 Feb 2007, T. 2932 – 2934, P295, p. 4. See also Mirza Sabljica, 19 Apr 2007, T. 4741–
4743; Predrag Carki, 19 June 2007, T. 6884; P104, Street map of Sarajevo; D197, Map marked by Milorad Kati. Cf.
Sanjin Hasanefendi, 16 Feb 2007, T. 2301, 2389 – 2390; Slavica Livnjak, 23 Jan 2007, T. 872;
820 See infra, Section II.E.4(B)(ii) Seniping of Targets in Sedrenik and paras 132 – 135, 140. Cf. Stevan Veljovi, 30
May 2007, T. 5865 – 5868, 5875, 5892; P742, Map marked by Stevan Veljovi; P743, Photograph marked by Stevan
Veljovi.
821 Ned`ib \ozo, 14 Mar 2007, T. 3694 – 3696, 3705. He testified that he could not guarantee that there were exactly
100, but this information could be found in the register, kept for the purpose, at the Stari Grad police station.
822 Martin Bell, 26 Apr 2007, T. 5256 – 5257; P617, Videoclip of interview with Radovan Karadži}.
823 W-62, 24 Jan 2007, T. 925 – 926; Azra [i{i}, 27 Feb 2007, T. 2861; Enes Jašarevi}, 1 Mar 2007, T. 3004, 3021;
Kosta Kosovi}, 11 July 2007, T. 8010; Avdo Vatri, P647, p. 12; P304, Map marked by Enes Jašarevi}. Cf. T-52,
28 June 2007, 7471 – 7476. The Trial Chamber notes that the “nursing home” and the Faculty of Theology in Nearii
were also held by the SRK, T-48, 22 June 2007, T. 7147 – 7148, 7158; T-52, 28 June 2007, T. 7443.
824 W-62, 23 Jan 2007, T. 892 – 893, 899 – 900; T-48, 22 June 2007, T. 7147 – 7148; P784, UNMO daily sitrep, dated
12 July 1994, p. 4 (under seal); P785, UNMO daily sitrep, dated 11 July 1994, p. 5; P941, Videoclip of sniping incident
(under seal); D278, Map marked by T-52; D279, Photograph marked by T-52; P783, Map marked by T-48. Cf. T-52,
28 June 2007, T. 7468, 7493 – 7494. See infra, Section II.E.4(b)(iii)a. Sniping of Adnan Kasapovi}.
825 W-62, 23 Jan 2007, T. 892 – 893, 900; T-48, 22 June 2007, T. 7147 – 7148, 7158 – 7159, 7169–7170; T-52, 28 June
2007, T. 7430 – 7432, 7443, 7458; T-60, 25 July 2007, T. 8815 – 8817, 8843 – 8844; P100, Photograph marked by W-
62; P783, Map marked by T-48; D278, Map marked by T-52; D279, Photograph marked by T-52; D352, Photograph
marked by T-60 (under seal).
826 Milan Mandilovi}, 18 Jan 2007, T. 603; Alen Gi~evi}, 5 Feb 2007, T. 1563; Asam Butt, 14 Feb 2007, T. 2161 –
2162, 2165; Sanjin Hasanefendi}, 16 Feb 2007, T. 2299, 2300; Azra [i{i}, 27 Feb 2007, T. 2832; Ned`ib \ozo, 14 Mar
2007, T. 3695 – 3696; Martin Bell, 26 Apr 2007, T. 5242; T-48, 22 June 2007, T. 7167; Milan Mandi}, 4 July 2007,
T. 7608 – 7609; Sanela Dedovi, P110, p. 2; P616, Videoclip of events in Sarajevo.
827 Bogdan Vidovi}, 13 Feb 2007, T. 2064.
81
Case No IT-98-29/1-T 12 December 2007
235. The Trial Chamber admitted into evidence video footage, which depicts a moving
UNPROPOR APC with people sheltering behind it.828 When shown to Martin Bell, he said:
“I think it’s one of the iconic images of the war. The French were trying to bring confidence to the
people and a degree of security down there …. They instituted this idea of the slowly moving
armoured vehicle with the people sheltering. And I think it conveys probably more than any single
sniping incident the daily perils of the people in the city.”829
236. The UNPROFOR Anti-Sniping Task Force was established in response to the “extreme
worry and fear” felt by the population as a result of the sniping.830 Its personnel were deployed
permanently in APCs in certain locations, including along Zmaja od Bosne and the “Salvation
Route”.831 Its positioning was in response to reports received from UNPROFOR battalions that
showed that almost all of the sniper fire aimed at UNPROFOR or the population of Sarajevo came
from snipers who were in the “Serb sector” on the other side of the Miljacka River.832 However,
evidence shows that the ABiH also fired upon UNPROFOR.833 The Anti-Sniping Task Force and
other UNPROFOR troops recorded the sniping incidents that took place and undertook self-defence
actions.834
(c) Sniping by the ABiH
237. Throughout the trial, the Defence put questions to witnesses concerning the sniping of
civilians, including Bosnian Muslims, in Sarajevo by the ABiH.835 In its Closing Brief, the
Prosecution submitted that, “any theories or suppositions that the ABiH sniped or fired at their
own people are entirely unsupported by the evidence and purely speculative.”836
238. David Harland testified that the issue of the ABiH sniping Bosnian Muslims was “a very
sensitive subject at the time” and was a “common allegation” of “the Serb side”.837 Witnesses spoke
of a gap between rumours of ABiH sniping of civilians and factual events; despite the rumours, they
828 Martin Bell, 26 Apr 2007, T. 5247; P612, Videoclip showing events in Sarajevo.
829 Martin Bell, 26 Apr 2007, T. 5247; P612, Videoclip showing events in Sarajevo.
830 W-46, 15 Mar 2007, T. 3815 (closed session). See also John Jordan, 21 Feb 2007, T. 2632, 2661 – 2662.
831 Alen Gievi, 5 Feb 2007, T. 1563; David Fraser, 7 Feb 2007, T. 1784 – 1785; W-46, 15 Mar 2007, T. 3811 (closed
session); Asam Butt, 14 Feb 2007, T. 2161 – 2162; Slavica Livnjak, 23 Jan 2007, T. 877; P34, Map marked by Louis
Fortin; P168, Photograph marked by Alen Gievi; P613, Videoclip of sniping on Zmaja od Bosne (The Trial Chamber
notes that this footage could be from pre-Indictment period).
832 David Fraser, 7 Feb 2007, T. 1784 – 1785; W-46, 15 Mar 2007, T. 3811 (closed session).
833 See, e.g., David Harland, 15 Jan 2007, T. 399 – 400, 16 Jan 2007, T. 413 – 414; Louis Fortin, 16 Jan 2007, T. 485,
P27, p. 7; Ismet Had`i}, 8 Mar 2007, T. 3446; Predrag Trapara, 27 June 2007, T. 7384; P34, Map marked by Louis
Fortin; D7, UNPROFOR daily sitrep, 2 December 1994, p. 7; D113, Letter by Van Baal, dated 15 August 1994; D147,
Letter by Gen. Gobilliard, dated 11 November 1994.
834 David Fraser, 7 Feb 2007, T. 1778; W-46, 15 Mar 2007, T. 3811 (closed session); P202, UNPROFOR report on antisniping
measures, 25 June 1994, p. 2; P203, UNPROFOR report, 14 September 1994, pp 3 - 5.
835 Milorad Kati}, 1 June 2007, T. 6040.
836 Prosecution Closing Brief, para. 161.
837 David Harland, 15 Jan 2007, T. 336 – 337.
82
Case No IT-98-29/1-T 12 December 2007
did not know of such cases.838 According to David Harland, in less than one per cent of the total
cases there was serious reason to believe that people on Bosnian Muslim territory were killed by
fire originating from ABiH-held territory and “certainly more than 90 per cent of the victims on the
Bosnian side, when we could identify where the shots had come from, appeared to have been shot
from the Serb side of the confrontation line.”839 Furthermore, David Harland testified that there
were “several dozens” of Bosnian Serbs killed within the confrontation lines but that there was no
general policy of the ABiH to snipe Bosnian Serbs in Sarajevo.840 According to David Harland,
most Bosnian Serbs who were killed in Sarajevo were killed by Bosnian Serb fire from outside the
confrontation lines, either through sniping or shelling.841
239. In response to questions by the Defence, Brig. Gen. Fraser testified that “any building” on
the Bosnian Muslim side of ‘Sniper Alley’ could have been a sniper position.842 He identified the
UNIS Buildings and the Assembly Building as ABiH sniper positions, agreeing that they gave a
good view of ‘Sniper Alley’ and that they were “possibly” good positions from which to shoot on
civilians and trams.843 However, he clarified his statements in the following terms: “By the same
token, ... I only knew of one case where allegedly the Muslims were firing at their own people,
and I didn’t hear of anything else along ‘Sniper’s Alley’, of positions that they would be using
against that road.”844
240. The strip of land north of the Miljacka River, up to the Marshal Tito Barracks and north of
the four high-rise buildings, was under ABiH control.845 There were trenches from Marindvor to the
technical faculty and the electrical utility company.846 The Holiday Inn, the Museum, the
Parliament, the School for Technology, the UNIS Buildings, the Energoinvest Building and the
Marshal Tito Barracks were all prominent features located in Marindvor, and were held by the
838 Asam Butt, 15 Feb 2007, T. 2187 – 2189; Thomas Knustad, 13 Feb 2007, T. 2043; Martin Bell, 26 Apr 2007,
T. 5266 – 5267, 27 Apr 2007, T. 5286 – 5287. See also, John Jordan, 21 Feb 2007, T. 2646 – 2647.
839 David Harland, 15 Jan 2007, T. 337, 16 Jan 2007, T. 451 – 452; David Fraser, 8 Feb 2007, T. 1877 – 1878; D179,
UN report on investigation into sniping incident of 4 September 1994, dated 6 September 1994; D51, UNPROFOR
Compte rendu d’incident on 4 September 1994, dated 5 September 1994.
840 David Harland, 15 Jan 2007, T. 331 – 332, 395, P2, MT. 28661 – 28662, 28684. See also, Ismet Had`i}, 6 Mar
2007, T. 3250.
841 David Harland, P2, MT. 28661.
842 David Fraser, 8 Feb 2007, T. 1869 – 1870, 1778.
843 David Fraser, 8 Feb 2007, T. 1870, 1778; D50, Photograph marked by David Fraser. He agreed that he could not
exclude the possibility that other buildings were ABiH sniping positions. In this respect, John Jordan testified that “it
would be correct to assume” that the ABiH had sniper positions in the UNIS Towers but he noted that it was a “lousy”
sniper position because it was an isolated building with a lot of glass, John Jordan, 21 Feb 2007, T. 2667 – 2669. See
D79, Photograph marked by John Jordan.
844 David Fraser, 8 Feb 2007, T. 1870; W-46, 15 Mar 2007, T. 3815 (closed session).
845 Alma Mulaosmanovi, 6 Feb 2007, T. 1664 – 1665, 1679 – 1680.
846 Radomir Visnji, 25 June 2007, T. 7254 – 7255.
83
Case No IT-98-29/1-T 12 December 2007
ABiH.847 Vaso Elez testified about other buildings that the ABiH held, such as the School of
Economics, the Wood Processing School, the Faculty of Mechanical Engineering, the Unioninvest
Building, the National Museum and the railway station, but no apartment buildings.848 The Faculty
of Natural Sciences and Mathematics and the Faculty of Philosophy were also held by the ABiH.849
241. Milorad Kati} noted that the former Marshal Tito Barracks, where members of the ABiH
were billeted, were located to the West of the Holiday Inn and that troops could be deployed there
as needed.850 Brig. Gen. Fraser testified that it was possible but unlikely that a civilian would be
caught in cross-fire coming from one of the high-rise buildings in Grbavica and buildings on
Bosnian Muslim territory.851 He said that snipers are skilled marksmen who take time to line up a
target and that it is unlikely that they would miss their target.852
242. The Defence argued that the ABiH could also have fired onto Zmaja od Bosne from
positions in the so-called “Red Building”, behind the Invest Bank Building, close to the Metalka
Building.853 Milorad Kati} testified that it was possible for ABiH snipers located in the “Red
Building” to fire upon trams travelling along Zmaja od Bosne.854 However, on being shown a series
of images of the area, Milorad Kati} agreed that from the area on Zmaja od Bosne, where trams
were most regularly sniped, it was not possible to see the Red Building.855 Witnesses testified that
the confrontation line ran behind the Red Building.856
847 Afeza Karai, 30 Jan 2007, T. 1193 – 1194; Asam Butt, 15 Feb 2007, T. 2251, 2252; Martin Bell, 26 Apr 2007, T.
5275 – 5276; David Fraser, 8 Feb 2007, T. 1869; W-54, 12 Feb, T. 1962, 1970 – 1971; Milorad Kati, 4 June 2007,
T. 6092; T-61, 9 July 2007, T. 7838; D49, Map marked by David Fraser; D50, Photograph marked by David Fraser;
D68, Photograph marked by Asam Butt; D79, Photograph marked by John Jordan.
848 Vaso Elez, 6 June 2007, T. 6310; D218, Photograph marked by Vaso Elez.
849 T-41, T. 8498 – 8503; Milorad Kati, 4 June 2007, T. 6092; D324, Photograph of Faculty of Mathematics and
Natural Sciences.
850 Milorad Kati}, 4 June 2007, T. 6092, 6094 – 6095, testified that the Marshal Tito Barracks were about 500 metres
behind the Holiday Inn and ABiH troops were physically located near the confrontation line, controlling the area in
which the Museum and Faculty of Philosophy were located.
851 David Fraser, 8 Feb 2007, T. 1865 – 1866. See also, D65, Letter by Vahid Karaveli, dated 27 August 1994.
852 David Fraser, 8 Feb 2007, T. 1865 – 1866.
853 Asam Butt, 15 Feb 2007, T. 2178, 2249 – 2250; Mirza Sabljica, 19 Apr 2007, T. 4732, 4760; Milorad Kati, 4 June
2007, T. 6092; P223, Photograph marked by Asam Butt; D169, Photograph marked by Mirza Sabljica; P583,
Photograph marked by Mirza Sabljica; D220, Photograph marked by Vaso Elez. The Trial Chamber notes that this
building was occupied by troops of both the SRK and the ABiH: Asam Butt, 15 Feb 2007, T. 2174; Mirza Sabljica, 19
Apr 2007, T. 4760 – 4761; Vaso Elez, 7 June 2007, T. 6374; P223, Photograph marked by Asam Butt.
854 Milorad Kati}, 4 June 2007, T. 6108. See also, P754, Photograph marked by Milorad Kati}.
855 Milorad Kati}, 1 June 2007, T. 6115.
856 Asam Butt, 15 Feb 2007, T. 2178; P223, Photograph marked by Asam Butt. See also, Mirza Sabljica, 19 Apr 2007,
T. 4732, 4760; D169, Photograph marked by Mirza Sabljica; P583, Photograph marked by Mirza Sabljica; Milorad
Kati testified that the King Tvrtko Battalion of the ABiH was there, Milorad Kati, 4 June 2007, T. 6092.
84
Case No IT-98-29/1-T 12 December 2007
243. Other witnesses dismissed the proposition that the ABiH sniped Bosnian Muslim
civilians.857 In response to a question about whether he had heard that the ABiH fired at Bosnian
Muslims, Gen. Smith testified that “nobody ever produced any evidence of this happening.”858
4. Sniping Incidents Representative of the “Campaign”
244. Prosecution expert on sniping, Lt. Van der Weijden, examined the incidents enumerated in
the First Schedule to the Indictment in his expert report and drew conclusions about the direction
and origin of fire as well as about the weapons used. The Defence ballistic expert, Col. Stamenov,
also examined the incidents and emphasised in his report that the type of weapon used and the
origin of fire cannot be established without material traces recorded at the site, establishing the
nature of the damage to the tram, the entry and exit wounds of the victims, and the type and origin
of the wounds. He pointed out that not all of that information was available for all of the
incidents.859
245. The Trial Chamber will now consider specific incidents of sniping. In determining whether
the crimes were committed, it will take into consideration the following factors: (i) whether the
person who was killed or seriously wounded was a civilian; (ii) the type of weapon that inflicted the
injury; and (iii) whether, as the Prosecution alleges, the shots were fired from Bosnian Serb-held
territory. In this regard, the Trial Chamber will pay particular attention to the direction and origin of
fire.
(a) Unscheduled Sniping Incidents
246. In addition to the scheduled incidents, the Prosecution also presented evidence of
unscheduled sniping incidents, that is, evidence of sniping that was not contained in the schedules
to the Indictment.860 This evidence included incidents in which civilians were sniped at from
Grbavica and other locations in Sarajevo.861 Some witnesses specified SRK-held territory as the
origin of fire.862 By way of example, the Trial Chamber discusses one of the unscheduled incidents.
857 Harry Konings, 13 Mar 2007, T. 3648; Rijalda Musaefendi}, 28 Feb 2007, T. 2928; Bogdan Vidovi}, 14 Feb 2007,
T. 2122 – 2128, 2134; Kemal Buo, 2 Feb 2007, T. 1497.
858 Rupert Smith, 7 Mar 2007, T. 3343.
859 D360, Expert report Ivan Stamenov, pp 16, 19, 20.
860 See supra, para. 6.
861 Kemal Bu}o, P158, p. 2; Alen Gievi, P163, p. 3; John Jordan, P267, pp 5, 6, 9 See e.g. Sniping of a tram at
Marindvor, autumn 1994: W-54, 12 Feb 2007, T. 1942, 1944 – 1945, 1953; Sniping of a police officer at the “National
Restaurant”, autumn 1994: Bogdan Vidovi}, 13 Feb 2007, T. 2067 – 2068, 14 Feb 2007, T. 2079, 2114 – 2115, 2148,
D63, Statement by Bogdan Vidovi}, dated 17 May 2006, p. 2; Sniping of a girl in apartment building at Marindvor 8
November 1994: Mirza Sabljica, 19 Apr 2007, T. 4730 – 4735, 4749 – 4758, 4760 – 4763; W-116, 18 Apr 2007, T.
4664 – 4668, P549, p. 2; P582, Criminal investigation file, p. 2; P583, Photograph marked by Mirza Sabljica; D166,
Map marked by W-116; Sniping of a tram on Zmaja od Bosne, 23 November 1994: Kemal Bu}o, P158, p. 2; P461,
Medical certificate for Emira Tanovi}; P462, Death certificate for Kemal Tanovi}; Sniping of a tram at the
85
Case No IT-98-29/1-T 12 December 2007
247. At around 2345 hours on 14 May 1995, Jasmina Tabakovi}, a lawyer, was in her bedroom in
an apartment in Dobrinja, which faced Bosnian Serb positions in Dobrinja I.863 She was shot in her
chest and died.864 The bullet passed through the plastic sheet that had replaced the window, passed
through her body and eventually lodged in the wall behind a wardrobe.865
248. On 15 May 1995, the BiH police investigated the sniping of Jasmina Tabakovi}.866 The BiH
police did not have reports of combat activity for the evening of 14 May 1994, but the father of
Jasmina Tabakovi} testified that during the evening, shots had been fired from the Bosnian Serb
positions in Dobrinja I.867 When asked by the Defence, W-28 agreed that Dobrinja was divided
between ABiH and SRK forces.868
249. The trajectory of the bullet was determined, using a piece of string to connect the traces in
the room.869 It was established that the shot had come from SRK positions in Dobrinja I.870 W-138
remembered that, at first glance, the bullet appeared to be a 7.62 mm calibre rifle bullet.871
Finding
250. On the basis of the evidence of witnesses W-28, W-138 and documentary evidence, the
Trial Chamber is satisfied that Jasmina Tabakovi}, a civilian, was killed by a shot while she was in
her bedroom in Dobrinja. The shots came from SRK-held territory in Dobrinja I. There is nothing in
the evidence suggesting that the shot could have been fired by anyone other than a member of the
SRK. The Trial Chamber concludes that the shots were fired by a member of the SRK.
Elektroprivada Building, 14 February 1995: Bogdan Vidovi}, 14 Feb 2007, T. 2092 – 2093; P219, Criminal
investigation file, dated 15 February 1995; Sniping of boy on bicycle at the Alipašin Mosque, 25 June 1995: David
Harland, 15 Jan 2007, T. 349 – 350; P19, UNPROFOR sitrep, 2 July 1995.
862 Derviša Selmanovi, P170, p. 3; Ronald Eimers, P584, p. 4; Alija Holjan, P526, p. 3; Slavica Livnjak, P94, pp 2 – 3.
See, e.g., Sniping of a bus on the logistic route, 18 March 1995: Ronald Eimers, P584, p. 4, P585, p. 9.
863 W-28, 22 Feb 2007, T. 2722; P796, Criminal investigation file, dated 15 May 1995, p. 2. The Trial Chamber notes
that this document has also been admitted as D83. However, the Trial Chamber did not receive an English translation of
D83.
864 P796, Criminal investigation file, p. 2.
865 W-28, 22 Feb 2007, T. 2722; W-138, 31 Jan 2007, T. 1336 – 1337; P769, Criminal investigation file, p. 2. W-28
also mentioned damage to the curtains in the room, W-28, 22 Feb 2007, T. 2722.
866 W-28, 22 Feb 2007, T. 2722, 2762 (private session); W-138, 31 Jan 2007, T. 1336 – 1337; P796, Criminal
investigation file.
867 W-28, 22 Feb 2007, T. 2722; P796, Criminal investigation file, p. 3.
868 W-28, 22 Feb 2007, T. 2762 (private session). See also, supra, paras 119 – 120.
869 W-138, 31 Jan 2007, T. 1338, 1342; W-138, 1 Feb 2007, 1347; P796, Criminal investigation file, p. 2.
870 W-138, 31 Jan 2007, T. 1337 – 1338; P796, Criminal investigation file, p. 2.
871 W-138, 31 Jan 2007, T. 1339.
86
Case No IT-98-29/1-T 12 December 2007
(b) Scheduled Sniping Incidents
(i) Sniping of Targets on Zmaja od Bosne
251. Five of the scheduled incidents which took place in the area of Zmaja od Bosne, also known
as ‘Sniper Alley’, involved trams. In that regard, the Trial Chamber recalls its previous finding
regarding the civilian nature of the trams.872
252. The Defence put forward a general argument with regard to all tram incidents that it was
“not possible to conclude beyond any reasonable doubt the source of the shots that hit the
tramways, particularly since the tramway travelled just behind the combat positions of BH Army
units, through a combat zone that was almost always active.”873 The Trial Chamber recalls that the
stretch of land between the confrontation line and Zmaja od Bosne was controlled by the ABiH, and
that Grbavica on the southern side of the confrontation line and high-rise buildings, such as the
Metalka Building, were held by the SRK.874 The Trial Chamber will examine the evidence
presented with regard to each incident and decide whether it is possible to determine that the trams
were fired at from SRK-held positions.
a. Sniping of Alma ]utuna on 8 October 1994
253. The Trial Chamber was presented with evidence of three incidents of sniping on Zmaja od
Bosne on 8 October 1994, all of which are connected and happened within a very short time
span.875 One of these incidents is in the First Schedule to the Indictment.
254. On 8 October 1994, Alma utuna was shot while she was travelling on a tram on Zmaja od
Bosne.876 She got on the tram at the stop “Socijalno”, together with her husband, to go
downtown.877 She was wearing a red and black blouse and jeans.878 No ABiH soldiers were on the
tram and there were no military activities or establishments in the area.879 A cease-fire was in place
that day.880
872 See supra, paras 224.
873 Defence Final Brief, para. 179.
874 See supra, paras 112, 114 – 116.
875 See infra, paras 261 et seq.
876 W-35, 22 Jan 2007, T. 822, 828.
877 W-35, 22 Jan 2007, T. 826, 829, P91, p. 2 (under seal), P92, p. 3 (under seal).
878 W-35, P92, p. 3 (under seal).
879 W-35, 22 Jan 2007, T. 827 – 828; W-35, 23 Jan 2007, 847 – 848; P92, p. 3 (under seal); W-28, 22 February 2007,
T. 2752.
880 W-35, 22 Jan 2007, T. 824 – 825, P91, p. 2 (under seal), P92, p. 3 (under seal).
87
Case No IT-98-29/1-T 12 December 2007
255. Shots were fired at and hit the crowded tram around 1200 and 1210 hours, when it was
running east, in the direction of the Presidency Building and Bašaršija,881 between the National
Museum and the Faculty of Philosophy, in front of the Holiday Inn.882 At this point, the tram tracks
made an S-curve.883
256. When the shooting started, people panicked and tried to seek shelter behind the seats.884
There were bursts of fire first aimed at the upper section of the tram and then at the lower section of
the tram.885 Alma utuna was standing next to the middle door of the tram, and was facing
Grbavica.886 She was wounded on the left side of her head by a piece of shard.887 She was also shot
in her right upper leg; the shot severed an artery in her leg.888 An exit wound was on her right
hip.889 The tram continued to the Presidency Building, but after that Alma ]utuna lost
consciousness.890 When Alma utuna was taken to the State Hospital, she was “clinically dead”.891
However, following surgery carried out immediately after her arrival, she recovered and was
discharged from the hospital 35 days later.892 The circulation in her leg is still poor and she needs
help with day-to-day activities.893
257. Prosecution expert Lt. Van der Weijden concluded in his report that the likely location of
the shooter was the Metalka Building, a high-rise building he visited in Grbavica.894 The alleged
shooting position was 310 to 320 metres from the place where the incident took place.895 W-35 also
881 W-35, 22 Jan 2007, T. 830 – 831, 835, P93, Photograph marked by W-35; D20, Photograph marked by W-35; D21,
Photograph marked by W-35; P941, Videoclip of sniping incident (under seal); P794, Criminal investigation file, pp 1 –
2.
882 W-35, 22 Jan 2007, T. 824, 835 – 837, P91, p. 2 (under seal), P92, p. 3 (under seal); P93, Photograph marked by W-
35; D20, Photograph marked by W-35; P941, Videoclip of sniping incident (under seal); W-28, 22 February 2007,
T. 2721; P278, Photograph marked by W-28.
883 W-35, 22 Jan 2007, T. 825 – 826, 829; P93, Photograph marked by W-35, D20, Photograph marked by W-35; D21,
Photograph marked by W-35. See also, Ivan Stamenov, 22 Aug 2007, T. 9078; Slavica Livnjak, 23 Jan 2007, T. 858,
866, P94, p. 2.
884 W-35, 22 Jan 2007, T. 827 – 828, 831, P91, p. 2 (under seal).
885 W-35, P92, p. 3 (under seal).
886 W-35, 22 Jan 2007, T. 826, 23 Jan 2007, T. 850 – 851, P91, p. 2 (under seal), P92, p. 3 (under seal); D21,
Photograph marked by W-35.
887 W-35, 22 Jan 2007, T. 824, P92, p. 3 (under seal).
888 W-35, 22 Jan 2007, T. 824 – 825, P91, p. 3 (under seal); P92, p. 3 (under seal); P451, Medical report, p. 3 (under
seal); P452, Medical record, p. 1 (under seal); P941, Videoclip of sniping incident (under seal). See also, P794,
Criminal investigation file, p. 4.
889 W-35, P91, p. 2 (under seal).
890 W-35, 22 Jan 2007, T. 831, P91, p. 2 (under seal).
891 W-35, 22 Jan 2007, T. 824, P92, p. 3 (under seal). See also, P794, Criminal investigation file, p. 3.
892 P451, Medical report, p. 3 (under seal); P452 Medical record, p. 1 (under seal).
893 W-35, P91, p. 3 (under seal), P92, p. 3 (under seal).
894 Lt. Van der Weijden also examined the possibility that the shots had come from the Jewish Cemetery, but excluded
this possibility, P514, Expert report Patrick van der Weijden, p. 20; P515, Photograph marked by Patrick van der
Weijden; P104, Street map of Sarajevo; P583, Photograph marked by Mirza Sabljica; P97, Photograph marked by
Slavica Livnjak; P222, Photograph marked by Asam Butt; P223, Photograph marked by Asam Butt; P166, Photograph
marked by Alen Gievi; P754, Photograph marked by Milorad Kati}.
895 P514, Expert report Patrick van der Weijden, pp 18, 20; P104, Street map of Sarajevo; Ivan Stamenov, 22 Aug 2007,
T. 9059.
88
Case No IT-98-29/1-T 12 December 2007
testified that the shots came from the Metalka Building.896 In this respect, the Trial Chamber recalls
that the Metalka Building was held by the SRK and was known as a sniper location.897
258. Lt. Van der Weijden further testified that the location where the tram was hit was directly
visible from the Metalka Building.898 Expert for the Defence, Col. Stamenov, also testified that one
could see parts of Zmaja od Bosne and the Holiday Inn from the Metalka Building.899 However, he
added that the Metalka Building would not have been visible from a tram located just after the Scurve
and travelling east.900 Moreover, based on a NATO weather report for Sarajevo, he testified
that the weather on 8 October 1994 was “rainy and foggy”. That NATO report stated that there was
rain and fog in the early morning in the area of the Sarajevo airport.901 W-35 testified that it was a
nice and sunny day.902
259. Since the tram was not a stationary target, Lt. Van der Weijden recorded the time during
which the tram would have been exposed to a shooter at the Metalka Building, and the time was at
least eight seconds.903 At the S-curve, trams had to slow down.904 Slavica Livnjak, a tram driver,
explained that, when negotiating the S-curve, the tram started to bend and the two tram cars were
facing two different directions.905 Col. Stamenov also testified that, in the S-curve, there would be
an angle between the front and the rear part of the tram, depending on the width of the tracks.906 He
confirmed that a tram has to slow down in order to enter an S-curve, and that after the curve it takes
some distance to accelerate so that the area over which the tram is moving slowly is greater than
just the S-curve itself.907
260. In terms of the type of weapon used, Lt. Van der Weijden concluded that automatic fire,
most likely with a M84 or M53 machinegun, was probably used since there were a number of
victims and several shots were fired at a rapid rate.908 He explained that machineguns are more
896 W-35, 22 Jan 2007, T. 824, 832, P92, p. 3 (under seal).
897 See supra, para. 228.
898 P514, Expert report Patrick van der Weijden, p. 20. See also, W-35, 22 Jan 2007, T. 824 – 825, 829, 836, 850 – 851,
P92, p. 3 (under seal); P93, Photograph marked by W-35; P97, Photograph marked by Slavica Livnjak.
899 Ivan Stamenov, 22 Aug 2007, T. 9055, commenting on C3, Photographs taken during site visit, p. 1.
900 Ivan Stamenov, 22 Aug 2007, T. 9054, commenting on C14, Photographs taken during site visit, p. 22.
901 Ivan Stamenov, 22 Aug 2007, T. 9030; D362, NATO weather report for Sarajevo, p. 2.
902 W-35, 22 Jan 2007, T. 827, P92, p. 3 (under seal).
903 P514, Expert report Patrick van der Weijden, p. 20. See also, C14, Photographs taken during site visit, pp 2 – 7.
904 W-35, 22 Jan 2007, T. 825 – 826, 829; Slavica Livnjak, P95, p. 2; P93, Photograph marked by W-35, D20,
Photograph marked by W-35; D21, Photograph marked by W-35.
905 Slavica Livnjak, 23 Jan 2007, T. 858, 865, 866 – 867, P94, p. 2.
906 Ivan Stamenov, 22 Aug 2007, T. 9053; D365, Drawing made by Ivan Stamenov.
907 Ivan Stamenov, 22 Aug 2007, T. 9078.
908 Patrick van der Weijden, 29 Mar 2007, T. 4280, 4324; P514, Expert report Patrick van der Weijden, p. 18, Appendix
A.
89
Case No IT-98-29/1-T 12 December 2007
effective against a moving target like a tram, which is only visible temporarily.909 The BiH police
commented that the damage to the tram was “probably caused by a ‘death sower’.”910
261. The Trial Chamber notes that further to the shooting of the tram carrying Alma utuna,
there is evidence of two other sniping incidents that took place in the same area and within minutes
of each other.911 The BiH police investigation file stated that on 8 October 1994, fire was opened on
two trams near the Museum, including the tram carrying Alma utuna, from the “aggressor’s
positions” in Grbavica.912 The driver of one of the trams told the BiH police that he thought the
shots had come from the Metalka Building.913 During the on-site investigation, the investigation
team found two stationary trams that were damaged and with traces of fire, and blood stains and
broken glass on the inside of the tram.914
262. Moreover, evidence also shows that shortly after the second tram was targeted, four children
between 12 and 14 years of age, running in the same area, near the Faculty of Philosophy and the
Executive Council, were shot and wounded.915 W-54 recalled that the children were shot from the
Metalka Building.916 While the trams and the children were being shot at, an UNPROFOR team
was taking cover behind one of its vehicles stationed on the sidewalk.917 It was reported that the
sniping of the two trams and the children had resulted in 11 casualties, including Alma utuna.918
263. Evidence suggested that Gen. Rose passed by the incident site at the moment that the
children were shot.919 UNPROFOR reported that on 8 October 1994, a tram was fired at with three
bursts of fire in the area of the Holiday Inn, resulting in the death of one civilian and the wounding
of 11.920 It reported that “the fire was answered as coming from the Bosnian Serb Army in the
area of the Jewish Cemetery. Investigation is ongoing”.921 A later UNPROFOR report recounted
that Gen. Mladi was informed by Gen. Rose about the incident and about the casualties.922 Gen.
Mladi denied that Bosnian Serb soldiers were involved and claimed that the shootings came from
the “Holiday Inn (i.e. the Bosnian Muslim side)” and that it was all “a scenario” engineered by the
909 P514, Expert report Patrick van der Weijden, p. 18, Appendix A.
910 P794, Criminal investigation file, p. 2. In that regard, the Trial Chamber recalls the evidence of Tarik Žuni, who
used these words to describe a M84 machine gun, Tarik Žuni, 7 Feb 2007, T. 1740.
911 W-35, 22 Jan 2007, T. 827, P92, p. 3 (under seal); P794, Criminal investigation file, pp 1 – 2.
912 P794, Criminal investigation file, pp 1 – 2.
913 P794, Criminal investigation file, p. 2.
914 P794, Criminal investigation file, p. 2.
915 W-54, 12 Feb 2007, T. 1944 – 1946; P794, Criminal investigation file, p. 2.
916 W-54, 12 Feb 2007, T. 1945.
917 W-54, 12 Feb 2007, T. 1944; P794, Criminal investigation file, p. 2.
918 P794, Criminal investigation file, pp 3 – 4; P448, P449, P450, Medical records (all under seal).
919 W-46, 15 Mar 2007, T. 3824 – 3825 (closed session); P388, UNPROFOR report, dated 13 October 1994.
920 P853, UNPROFOR daily sitrep, dated 8 October 1994, p. 3.
921 Ibid.
90
Case No IT-98-29/1-T 12 December 2007
other side.923 During the meeting, an UNPROFOR technical expert assured Gen. Mladi} that the
shooting had not come from the “Holiday Inn side”.924
264. The Defence confronted W-28, who was part of the BiH police investigation team, with a
letter by Gen. Rose addressed to President Alija Izetbegovi protesting against sniping incidents
that took place on 8 October 1994 “in the City of Sarajevo from both sides of the line of
confrontation”.925 W-28 was not able to comment on the letter, but testified that he was not aware of
military activities on that day.926 The Trial Chamber notes that this same letter was sent to Radovan
Karad`i}.927 However, these letters do not refer to any specific incident or any specific location in
or around Sarajevo.
Findings
265. As to the Defence submission of poor visibility on that day, the Trial Chamber notes that the
NATO report reflects that on 8 October 1994 at around 1200 or 1210 hours, when the shooting took
place, it was neither raining nor foggy and that the visibility was 6,000 metres.928 Therefore, the
Trial Chamber is satisfied that the visibility was sufficient to allow a sniper at the Metalka Building
to identify and target a tram negotiating the S-curve.929
266. On the basis of the evidence of eyewitnesses, experts for the Prosecution and Defence, the
BiH police report and photographic evidence, the Trial Chamber is satisfied that the tram was shot
at the S-curve on Zmaja od Bosne with machinegun fire and that Alma utuna, a civilian, was hit
and seriously injured in her right upper leg. There is no evidence that the shots originated from
ABiH-held territory. The Trial Chamber is satisfied that the shots came from the direction of the
Metalka Building, which was held by the SRK. In light of the fact that nothing in the evidence
suggests that the shots came from anyone other than a member of the SRK, the Trial Chamber finds
that the shots were fired by a member of the SRK.
922 P389, UNPROFOR report, dated 10 October 1994, p. 2: seven people were injured and one died; W-46, 15 Mar
2007, T. 3825 – 3826 (closed session).
923 P389, UNPROFOR report, 10 October 1994, p. 2.
924 Ibid.
925 W-28, 22 February 2007, T. 2752; D80, Protest letters from General Rose to Gani}/ Izetbegovi}/ Karad`i}, dated 9
October 1994 (“Protest letter, 9 October 1994”), p. 3.
926 W-28, 22 February 2007, T. 2752.
927 D80, Protest letter, 9 October 1994, p. 4.
928 D362, NATO weather report for Sarajevo, p. 2.
929 C14, Photographs taken during site visit, pp 24 – 26.
91
Case No IT-98-29/1-T 12 December 2007
b. Sniping of Hajrudin Hamidi} on 21 November 1994
267. The twenty-first of November 1994 was a cold day.930 The trams were operating that
morning. However, the centre of Sarajevo came under shell-fire and due to the intensity of the
shelling, the trams could not reach Baš~aršija and were ordered to return to the depot at Alipašin
Most.931 A tram driver, Hajrudin Hamidi}, picked up a group of passengers while driving the empty
tram back to the depot.932 The passengers were mainly women and children, as well as some elderly
and young people.933 No military personnel got onto the tram with that group of passengers.934
268. When the tram reached the intersection between the National Museum and the Holiday Inn
at about 1100 hours, a projectile fell one or one and a half metres in front of the tram.935 There was
a huge impact and detonation, which W-54 attributed to a shell rather than to a rifle grenade.936 The
explosion was very loud.937 W-54 saw that the windscreen was shattered, the front section of the
tram was damaged, all the windows were broken and there was shrapnel inside the tram.938 Blood
was trickling down the face of Hajrudin Hamidi}.939 His glasses had been shattered and he was
bleeding profusely.940
269. The tram tracks were not smashed or bent by the explosion, so W-54 inferred that the
projectile had landed either between or to the left of the rails.941 After the explosion, the tram kept
moving.942 The tram driver told his passengers: “Lie down. We’re all going to be killed.”943 The
passengers were panicking; the women and children were screaming and crying, pleading with the
driver to continue, and making comments such as: “We’re going to be killed.”944
270. Immediately following the explosion, when the tram had travelled approximately another 50
metres and had gone past the Marshal Tito Barracks, snipers started shooting repeatedly at the left-
930 W-54, 6 Feb 2007, T. 1695.
931 W-54, 6 Feb 2007, T. 1639, 1693 – 1694; Avdo Vatri, P647, p. 5.
932 W-54, 12 Feb 2007, T. 1949.
933 W-54, 6 Feb 2007, T. 1695.
934 W-54, 6 Feb 2007, T. 1695.
935 W-54, 6 Feb 2007, 1695 – 1696, 12 Feb 2007, 1968; D56, Police file, dated November/December 1994 (“Police
file”), p. 2 (under seal).
936 W-54, 6 Feb 2007, T. 1695 – 1696, 12 Feb 2007, T. 1950 – 1951, 1959.
937 W-54, 12 Feb 2007, T. 1959.
938 W-54, 6 Feb 2007, T. 1696 – 1697, 12 Feb 2007, T. 1950 – 1951, 1961.
939 W-54, 6 Feb 2007, T. 1696, 12 Feb 2007, T. 1951.
940 W-54, 12 Feb 2007, T. 1950 – 1951. In that regard, the Prosecution submitted that Hajrudin Hamidi} was not
wounded as a result of sniper fire as alleged in the Indictment and that the evidence pertaining to this incident could go
to support a finding on Counts 3 and 4 of the Indictment, Trial Hearing, 6 Feb 2007, T. 1681 – 1682.
941 W-54, 12 Feb 2007, T. 1960.
942 W-54, 6 Feb 2007, T. 1696, 12 Feb 2007, T. 1955, 1970.
943 W-54, 6 Feb 2007, T. 1696.
944 W-54, 6 Feb 2007, T. 1696.
92
Case No IT-98-29/1-T 12 December 2007
hand side of the tram.945 The sniping continued until the tram reached Pofalii and stopped at the
stop “Socijalno” or “Elektroprivreda”.946 A wounded woman disembarked from the tram and an
ambulance was called to assist.947 Apart from this woman, W-54 was not aware of any other person
being injured by the sniping during the tram journey.948
271. W-54 testified that, after the Elektroprivreda stop, the tram continued to Dolac Malta, where
it was safe to stop and where the other passengers disembarked.949 At that location, in that area of
Hrasno, there were no Bosnian Serb soldiers and snipers on the left bank of the Miljacka River, as
Hrasno was under the control of ABiH.950 The tram driver then drove the tram to the depot.951
272. According to W-54, the snipers were stationed approximately 400 to 500 metres from the
tram.952 W-54 testified that all shots, including the shot causing the large explosion, came from the
high-rise buildings at Grbavica, that is, Lenjinova Street, numbers 6, 8 and 10.953 W-54 knew that
these high-rise buildings were controlled by the SRK because at least one building displayed the
Serb flag.954 The BiH police, on the basis of an analysis of the remains of the projectile, concluded
that the direction of fire was 184 degrees, which corresponded to the direction of a high-rise
building in Grbavica.955 The Trial Chamber recalls that other evidence also shows that the high-rise
buildings in Grbavica were held by the SRK.956
273. The BiH police further concluded that the explosion was caused by a M80 hand-held rocket
projectile.957 This type of projectile was used by the JNA, and had a range of 1,300 metres.958 Lt.
Van der Weijden came to a different conclusion regarding the nature of the initial explosion.
According to him, the explosion was most likely caused by a M84 or M53 machinegun.959 In his
view, a bullet hit an electrical circuit, since a short circuit could cause a loud bang similar to a small
explosion.960
945 W-54, 12 Feb 2007, T. 1968.
946 W-54, 6 Feb 2007, T. 1696, 12 Feb 2007, T. 1941, 1955 – 1956.
947 W-54, 6 Feb 2007, T. 1698, 12 Feb 2007, T. 1951, 1957.
948 W-54, 6 Feb 2007, T. 1951, 1954, 1698; D56, Police file, p. 5 (under seal).
949 W-54, 6 Feb 2007, T. 1696 – 1697.
950 W-54, 6 Feb 2007, T. 1696 – 1697.
951 W-54, 12 Feb 2007, T. 1949; D56, Police file, p. 5 (under seal).
952 W-54, 6 Feb 2007, T. 1696 – 1697, 1698, 12 Feb 2007, T. 1955 -1956, 1959 – 1960, 1968 – 1969; D55, Statement
of W-54, dated 20 May 2006, p. 2 (under seal).
953 W-54, 6 Feb 2007, T. 1696 – 1698, 12 Feb 2007, T. 1955, 1958, 1959; D56, Police file, p. 5 (under seal). The Trial
Chamber takes also note of D215, Map marked by Vaso Elez; D218, Photograph marked by Vaso Elez.
954 W-54, 6 Feb 2007, T. 1696, 12 Feb 2007, T. 1955.
955 D56, Police file, p. 4 (under seal).
956 See supra, para. 228.
957 D56, Police file, p. 4 (under seal).
958 D56, Police file, p. 4 (under seal).
959 P514, Expert report Patrick van der Weijden, p. 36.
960 P514, Expert report Patrick van der Weijden, p. 36.
93
Case No IT-98-29/1-T 12 December 2007
274. Lt. Van der Weijden’s assessment of the location of the incident site and likely shooter
location differed from the testimony of W-54. Lt. Van der Weijden visited the incident site as well
as the likely location of the shooter on 29 November 2006.961 Although the trees were leafless and
visibility was just over 450 metres at the incident site due to fog, there was still sufficient vision to
determine the direction and approximate location of the shooter.962 According to Lt. Van der
Weijden, the information provided by the victim led him to determine that the Grbavica area was
the source of fire. However, this was contradictory to the location identified in the reports provided
by the Prosecution, which indicated a location that was not visible from the Grbavica area, but was
in clear view of the area west of the Jewish Cemetery that was also known for sniping activity.963
According to Lt. Van der Weijden, the Grbavica area was not the origin of fire in this incident.964
Findings
275. The Trial Chamber notes that the evidence of W-54 and Lt. Van der Weijden differed in the
following areas: the exact location of the initial explosion; the exact location of the tram when it
was hit by subsequent sniper fire; the type of weapon that caused the explosion; and the direction of
fire. Lt. Van der Weijden’s report did not take into account the high-rise buildings as possible
sniper locations and did not take into account that the remains of a M80 rocket projectile had been
located at the site of the explosion.965 Nor does his report show that he knew of the subsequent
sniping of the tram. The Trial Chamber further notes that neither of the Parties put any questions to
Lt. Van der Weijden in relation to this specific incident. The Trial Chamber finds that Lt. Van der
Weijden based his opinion on incomplete information. He was not asked to provide a new
assessment, in which he could have taken into account the fact that traces of a rocket projectile were
found.
276. On the basis of the testimony of W-54 and the BiH police report, the Trial Chamber finds
that the tram was hit by a M80 hand-held rocket and that Hajrudin Hamidi}, a civilian and the
driver of the tram, was seriously injured as a result of this explosion. The Trial Chamber is also
satisfied that the tram was fired at with sniper fire immediately after being targeted by the rocket
projectile. There is no evidence to suggest that these shots originated from ABiH-held territory. The
sniper fire and the rocket projectile originated from the high-rise buildings at Grbavica which were
961 P514, Expert report Patrick van der Weijden, p. 37.
962 P514, Expert report Patrick van der Weijden, p. 37.
963 P514, Expert report Patrick van der Weijden, p. 37. The Trial Chamber notes that Lt. Van der Weijden did not
indicate which warring party was in these areas.
964 P514, Expert report Patrick van der Weijden, p. 37.
965 P514, Expert report Patrick van der Weijden, pp 36 – 38. It is possible that Lt. Van der Weijden was not provided
with all relevant information prior to investigating this scheduled incident.
94
Case No IT-98-29/1-T 12 December 2007
held by the SRK. In light of the fact that there is nothing in the evidence suggesting that the shot
could have been fired by anyone other than a member of the SRK, the Trial Chamber concludes that
the shots were fired by a member of the SRK.
c. Sniping of Hafiza Kara~i} and Sabina [abani} on 23 November 1994
277. On 23 November 1994, Afeza Karai and her sister went to the market in Bašaršija.966
According to Afeza Karai, there was a cease-fire in place that day, which had been announced on
the radio two or three days earlier.967 There was no fighting between the warring parties.968 In the
afternoon, Afeza Karai and her sister decided to take a tram back to Otoka, where they lived.969
On the same day just before 1600 hours, Sabina Šabani left work to take a tram home.970 Sabina
Šabani and Afeza Karai travelled on the same crowded tram.971
278. It was a clear day and there was still natural light at that time of the afternoon.972 There were
no leaves on the trees.973 No soldiers were on the tram, and there were no soldiers or any ABiH
vehicles in the area.974
279. From Bašaršija, the tram ran towards the West, on Zmaja od Bosne, in the direction of the
Technical School and the Marshal Tito Barracks.975 Tram drivers were instructed not to stop in the
area because trams were very exposed to shooting.976 When the tram reached the area of Marindvor,
it was shot by a sniper.977
280. Huso Palo, the tram driver, heard a shot from his left side, to the South.978 Witnesses
reported that there was only one shot which came through an open window of the tram.979 Most of
the passengers threw themselves on the floor, imploring the tram driver to take shelter.980
966 Afeza Karai, P115, p. 2.
967 Afeza Karai, P115, p. 2.
968 Sabina Šabani, 2 Feb 2007, T. 1457-1458.
969 Afeza Karai, 29 Jan 2007, T. 1182 – 1183, P115, p. 2; P104, Street map of Sarajevo.
970 Sabina Šabani, 2 Feb 2007, T. 1445, 1447, P153, p. 2.
971 Afeza Karai, 29 Jan 2007, T. 1185; Sabina Šabani, 2 Feb 2007, T. 1457, P153, p. 2; Kemal Buo, P158, p. 2;
P161, Official note, p. 2; P212, Official report, p. 1.
972 Afeza Karai, 29 Jan 2007, T. 1185, P115, p. 2; Sabina Šabani, 2 Feb 2007, T. 1457, P154, p. 2.
973 Afeza Karai, 29 Jan 2007, T. 1185.
974 Afeza Karai, 29 Jan 2007, T. 1185, P115, p. 2; Huso Palo, P162, p. 2; Sabina Šabani, P154, p. 2.
975 Afeza Karai, P115, p. 2; Huso Palo, P162, p. 2; P941 Videoclip with Afeza Karai (under seal); P104, Street map
of Sarajevo.
976 Afeza Karai, 29 Jan 2007, T. 1185 – 1186, P115, p. 2; Huso Palo, 5 Feb 2007, T. 1541, 1544, P162, p. 2.
977 Huso Palo, 5 Feb 2007, T. 1535 – 1536; Sabina Šabani, 2 Feb 2007, T. 1449; Afeza Karai, P114, p. 2, P115, p. 2;
Kemal Buo, 2 Feb 2007, T. 1495 – 1496, P158, p. 2; P161, Official note, p. 2; P212, Official report, p. 1; P155,
Photograph marked by Sabina Šabani; P157, Photograph marked by Sabina Šabani; P160, Photograph marked by
Kemal Buo; D36, Photograph marked by Sabina Šabani; D20, Photograph marked by W-35; P104, Street map of
Sarajevo.
978 Huso Palo, 5 Feb 2007, T. 1536, 1539, 1547, P162, pp 2 – 3.
95
Case No IT-98-29/1-T 12 December 2007
281. Afeza Karai was standing in the middle of the tram, at the connecting platform between
the front and the rear cars of the tram, facing east, when she was shot.981 She was wearing a brown
jacket and trousers.982 Afeza Karai did not hear any shots, she just felt a powerful impact against
her shoulder and heard other passengers screaming.983 The bullet, which came from her right,
entered her upper right shoulder and exited slightly lower on the right arm, severing a nerve.984
282. Sabina Šabani was standing at the back of the front section of the tram, facing Grbavica.985
She did not hear the shot either and did not realise that she was wounded until she got off the tram
and started to lose consciousness.986 She was hit in the front right shoulder and the bullet exited two
inches lower at the back of the same shoulder.987
283. The tram continued further down the street and stopped in a sheltered area at the Marshal
Tito Barracks. The injured people got off the tram.988 The two wounded, Afeza Karai and Sabina
Šabani, were taken to the Koševo Hospital Trauma Clinic.989 Afeza Karai had several operations
as a result of which her arm was shortened by six centimetres.990 Due to her injuries, she has 80 per
cent disability; she cannot drive a car or write properly and has difficulty eating with her right
hand.991 Sabina Šabani stayed in hospital for four days.992 She could not use her arm properly and
had difficulty eating and getting dressed, leaving her unable to work until March 1995.993
284. Kemal Buo, a state security inspector for the BiH police, reported that Afeza Karai and
Sabina Šabani had been hit by one single bullet which fragmented.994 W-91 was also involved in
the investigation of the sniping of two trams which occurred on 23 November 1994.995 W-91 stated
that it was common for the Bosnian Serb Army to fire fragmentation bullets at trams that would
979 Huso Palo, 5 Feb 2007, T. 1537 – 1538; Kemal Buo, 2 Feb 2007, T. 1518, P158, p. 2, P159, Information report,
p. 1; P161, Official note, p. 2; P212, Official report, p. 1.
980 Afeza Karai, 30 Jan 2007, T. 1197, P114, p. 2; Huso Palo, 5 Feb 2007, T. 1536, 1539; Sabina Šabani, 2 Feb 2007,
T. 1448, P153, p. 2.
981 Afeza Karai, 29 Jan 2007, T. 1182 – 1183, P114, p. 2; P941, Videoclip with Afeza Karai (under seal).
982 Afeza Karai, 29 Jan 2007, T. 1182 – 1183, 1185, P114, p. 2.
983 Afeza Karai, 30 Jan 2007, T. 1196, 1201, P114, p. 2.
984 Afeza Karai, 29 Jan 2007, T. 1184, 30 Jan 2007, 1194, P114, p. 2; P941, Videoclip with Afeza Karai (under
seal); P161, Official note, p. 2.
985 Sabina [abani}, P153, p. 2.
986 Sabina Šabani, 2 Feb 2007, T. 1450, 1476, P153, p. 2.
987 Sabina Šabani, 2 Feb 2007, T. 1458, P153, p. 2.
988 Afeza Karai, 30 Jan 2007, T. 1189, P114, p. 2; Huso Palo, 5 Feb 2007, T. 1536, P162, p. 3; Sabina Šabani, 2 Feb
2007, T. 1450, P153, p. 2; P161, Official note, p. 2; D36, Photograph marked by Sabina Šabani.
989 Sabina Šabani, 2 Feb 2007, T. 1484, P153, p. 2; Afeza Karai P114, p. 2; P161, Official note, p. 2; P212, Official
report, p. 1; P459, Medical certificate (under seal); P460, Medical certificate (under seal).
990 Afeza Karai, P114, p. 2, P115, p. 2.
991 Afeza Karai, 30 Jan 2007, T. 1190, P114, p. 2, P115, p. 2.
992 Sabina [abani}, P153, p. 2.
993 Sabina [abani}, P153, p. 2.
994 Kemal Buo, P158, p. 2; P161, Official note, p. 2; P212, Official report, p. 1.
995 W-91, P371, p. 2 (under seal).
96
Case No IT-98-29/1-T 12 December 2007
fragment on impact, even through glass.996 In W-91’s view, the use of fragmentation bullets had
two advantages: first, they could hit more than one person.997 Second, they avoided leaving behind
a single exit hole and this prevented the Bosnian Muslims from using certain methods to determine
the origin of fire, such as putting a tube through the holes.998
285. However, Col. Stamenov testified that, to his knowledge, there were no fragmentation
bullets in the SRK’s arsenal, neither for rifles nor for machineguns.999 Lt. Van der Weijden also
concluded that several shots were fired, most likely from a M84 or M53 machinegun.1000
286. There was conflicting evidence regarding the location where the tram was hit and the origin
of fire. Afeza Karai testified that the tram was hit at the Holiday Inn, just before the National
Museum.1001 Lt. Van der Weijden also appears to have conducted his analysis of this incident based
on the assumption that the tram was hit in front of the Holiday Inn.1002 However, in a statement
Afeza Karai gave in 1995, she indicated that the tram was hit at the Marshal Tito Barracks.1003 All
other evidence indicated that the tram was shot between the School of Engineering and the Marshal
Tito Barracks.1004
287. As to the origin of fire, all witnesses gave evidence that the shot came from the direction of
Grbavica, but differed as to the exact location. During her testimony in court, Afeza Karai
indicated that the shots came from the Metalka Building.1005 According to Lt. Van der Weijden, the
likely location of the shooter was the Metalka Building.1006 The Trial Chamber recalls that the
Metalka Building was a known Bosnian Serb sniper position.1007 However, Sabina Šabani, Kemal
996 W-91, P371, p. 2 (under seal).
997 W-91, P371, p. 2 (under seal).
998 W-91, P371, p. 2 (under seal).
999 Ivan Stamenov, 22 Aug 2007, T. 9051, 9085.
1000 Patrick van der Weijden, 29 Mar 2007, T. 4324; P514, Expert report Patrick van der Weijden, pp 25, 27, Appendix
A. The Trial Chamber notes that it has not been provided with information as to which statements Lt. Van der Weijden
reviewed.
1001 Afeza Karai, 30 Jan 2007, T. 1191; P104, Street map of Sarajevo; P116, Photograph marked by Afeza Karai;
P941, Videoclip with Afeza Karai (under seal); P119, 360 photograph.
1002 P514, Expert report Patrick van der Weijden, pp 25 – 26.
1003 Afeza Karai, P114, p. 2; In her written statement from 2006, she changed this to “The location where the tram
was shot was near the Tito Barracks as written, but it should be correctly described as Marindvor area.” P115, p. 2.
1004 Huso Palo, 5 Feb 2007, T. 1535 – 1536; Sabina Šabani, 2 Feb 2007, T. 1449; Afeza Karai, P114, p. 2, P115, p.
2; Kemal Buo, 2 Feb 2007, T. 1495 – 1496, P158, p. 2; P161, Official note, p. 2; P212, Official report, p. 1; P155,
Photograph marked by Sabina Šabani; P157, Photograph marked by Sabina Šabani; P160, Photograph marked by
Kemal Buo; D36, Photograph marked by Sabina Šabani; D20, Photograph marked by W-35; P104, Street map of
Sarajevo.
1005 Afeza Karai, 30 Jan 2007, T. 1192 – 1193. During her testimony, Afeza Karai indicated where the Metalka
Building was located, but did not explicitly say that the shots came from there; P941, Videoclip with Afeza Karai
(under seal); P119, 360 photograph.
1006 P514, Expert report Patrick van der Weijden, pp 25 – 26; P515, Photograph marked by Patrick van der Weijden;
P104, Street map of Sarajevo; P583, Photograph marked by Mirza Sabljica; P97, Photograph marked by Slavica
Livnjak; P222, Photograph marked by Asam Butt; P223, Photograph marked by Asam Butt; P166, Photograph marked
by Alen Gievi; P754, Photograph marked by Milorad Kati}.
1007 See supra, para 228.
97
Case No IT-98-29/1-T 12 December 2007
Buo and Huso Palo gave evidence that the shot was fired from one of the high-rise buildings on
Lenjinova Street, which offered a direct line of sight onto the area between the two museums,
where the tram was shot.1008 The Trial Chamber recalls that these buildings were also known
Bosnian Serb sniper positions.1009
Findings
288. On the basis of the evidence of eyewitnesses, including Hafiza Kara~i} and Sabina [abani},
and the BiH police report, the Trial Chamber finds that the tram was shot at the intersection in front
of the Holiday Inn, or shortly thereafter in front of the Marshal Tito Barracks between the two
museums. The origin of fire was either the high-rise buildings on Lenjinova Street or the Metalka
Building. The Trial Chamber recalls that both locations were held by the SRK.
289. There is no evidence to suggest that the shots came from ABiH-held territory. In light of the
evidence from all witnesses that the shots came from SRK-held territory, it is not necessary for the
Trial Chamber to resolve the conflicting evidence as to the precise location of the tram and the
origin of fire. Moreover, the evidence shows that weapons were used with a calibre and range
sufficient to hit the tram and to cause the serious injuries sustained by Sabina Šabani and Afeza
Karai. The question whether the two civilians were injured by a fragmentation bullet or by
multiple shots has no bearing on the findings of the Trial Chamber. In light of the fact that there is
nothing in the evidence suggesting that the shot could have been fired by anyone other than a
member of the SRK, the Trial Chamber concludes that the shots were fired by a member of the
SRK.
d. Sniping of Senad Kešmer, Alma ^ehaji} and Alija Holjan on 27 February
1995
290. W-118 was driving a tram that was fired upon on 27 February 1995 on Zmaja od Bosne.1010
The crowded tram was travelling westwards, from the centre of town toward Ilidža.1011 According
1008 Kemal Buo, 2 Feb 2007, T. 1495, P158, p. 2. According to Kemal Buo, the origin of fire was determined by a
CSB ballistic team and also by UNPROFOR; Huso Palo, 5 Feb 2007, T. 1535, 1539, 1547, P162, pp 2 – 3; Sabina
Šabani, 2 Feb 2007, T. 1453 – 1455, P154, p. 2; P157, Photograph marked by Sabina Šabani; P161, Official note, p.
2; P104, Street map of Sarajevo; D215, Map marked by Vaso Elez.
1009 See supra, para. 228.
1010 W-118, 5 Feb 2007, T. 1616, 6 Feb 2007, T. 1628, P174, p. 2 (under seal).
1011 W-118, 5 Feb 2007, T. 1616, 6 Feb 2007, T. 1624, 1629 – 1630, P175, p. 2 (under seal); Alma Mulaosmanovi, 6
Feb 2007, T. 1652, 1657; Alija Holjan, 4 Apr 2007, T. 4473, P524, p. 1, P525, p. 2, P526, p. 2; D39, Photograph
marked by W-118.
98
Case No IT-98-29/1-T 12 December 2007
to W-118, there was a cease-fire in place and it was a peaceful day.1012 The weather conditions
allowed for good visibility, with neither fog nor rain.1013
291. Alma Mulaosmanovi, maiden name ^ehaji}, aged 18, was on the tram on her way back
home from school.1014 She was wearing a light purple jacket, blue jeans, tennis shoes, and a green
blouse.1015 On the tram, she stood facing the Marshal Tito Barracks.1016 Alija Holjan, a foreman of a
street cleaning crew, was sitting on the right-side of the tram, next to an exit.1017 W-118 recounted
how the shooting started around noon, when the tram was about 20 metres west of the tram stop at
the Marshal Tito Barracks.1018 Alija Holjan and Alma Mulaosmanovi} also testified that the tram
was near the Marshal Tito Barracks when it came under fire.1019 W-118 heard a loud noise, and, at
first, thought that the wires were breaking.1020 Alija Holjan and Alma Mulaosmanovi} both heard
shots hitting the left side of the tram.1021 They described how the passengers tried to take cover
from the bullets.1022 Alma Mulaosmanovi testified:
“Just as all other passengers, I was just waiting to be hit. In that crouching position I just prayed to
God, because shots were heard hitting the tram, that I wouldn’t be hit in the spine or any such part
that would leave me paralysed.”1023
292. Alma Mulaosmanovi sustained what she called a “light injury” in her left arm from a
bullet.1024 It entered on the front at her elbow, passed through the muscle, “slid down” the bone and
exited on her lower arm.1025 Alija Holjan felt a blow to the right shoulder blade area.1026 He started
to bleed.1027 A bullet had struck him in the back, passing from left to right.1028 He saw that about
1012 W-118, 6 Feb 2007, T. 1624, 1637, 1648, P174, p. 2 (under seal). See also, D475, D476, D477, D478, D478,
Regular combat reports, 25 – 27 February 1995.
1013 W-118, P175, p. 2 (under seal); Alma Mulaosmanovi, 6 Feb 2007, T. 1657; Alija Holjan, P526, p. 2.
1014 Alma Mulaosmanovi, 6 Feb 2007, T. 1649.
1015 Alma Mulaosmanovi, 6 Feb 2007, T. 1652, 1657, P179, pp 2 – 3.
1016 Alma Mulaosmanovi, 6 Feb 2007, T. 1652, 1658, 1661 – 1662, P178, p. 2, P179, p. 3.
1017 Alija Holjan, 4 Apr 2007, T. 4470, 4472, 4479, P524, p. 1, P525, p. 2.
1018 W-118, 5 Feb 2007, T. 1616, 6 Feb 2007, T. 1630, 1633, 1640, P174, p. 2 (under seal); P176, Map marked by W-
118; P177, Photograph marked by W-118; D39, Photograph marked by W-118; D40, Map marked by W-118. See also,
Alija Holjan, P524, p. 1, P525, p. 2; Alma Mulaosmanovi, P178, p. 2.
1019 Alma Mulaosmanovi, 6 Feb 2007, T. 1652 – 1653, 1661, 1663 – 1664; P180, Map marked by Alma
Mulaosmanovi; P181, Photograph marked by Alma Mulaosmanovi; D42, Photograph marked by Alma
Mulaosmanovi. See also, Alma Mulaosmanovi, P179, p. 2; Alija Holjan, 4 Apr 2007, T. 4476 – 4477, P524, p. 1,
P525, p. 2,
1020 W-118, 6 Feb 2007, T. 1625.
1021 Alija Holjan, 4 Apr 2007, T. 4479, P524, p. 1, P525, p. 2. Alma Mulaosmanovi, 6 Feb 2007, T. 1658, P178, p. 2,
P179, pp 2 – 3.
1022 Alija Holjan, 4 Apr 2007, T. 4479, P524, p. 1; Alma Mulaosmanovi, 6 Feb 2007, T. 1658, P178, p. 2, P179, pp 2 –
3.
1023 Alma Mulaosmanovi, 6 Feb 2007, T. 1658.
1024 Alma Mulaosmanovi, 6 Feb 2007, T. 1653, 1656, 1658, P178 p. 2, P179, p. 3.
1025 Alma Mulaosmanovi, 6 Feb 2007, T. 1656.
1026 Alija Holjan, P524, p. 1, P525, p. 2, P526, p. 3.
1027 Alija Holjan, P525, p. 2, P526, p. 3.
1028 Alija Holjan, P525, p. 2.
99
Case No IT-98-29/1-T 12 December 2007
four other people were injured during the shooting of the tram.1029 He saw a woman who was
seriously wounded in the leg and he later heard that she died in the hospital.1030 W-118 did not hear
any gunfire and only realised that the tram had been shot at when she heard people screaming.1031
She turned around and saw passengers lying down on the floor and someone bleeding.1032 Then W-
118 thought that the whole length of the tram had been targeted; it felt like a “burst of fire”.1033
293. Alma Mulaosmanovi} recalled that the shooting continued until they reached shelter in front
of a police station.1034 W-118 continued to drive for about 50 metres and stopped the tram at the
Faculty of Natural Sciences and Mathematics to seek shelter.1035 At that point, passengers tried to
leave the tram.1036
294. Alma Mulaosmanovi and Alija Holjan were taken to the first-aid station of the State
Hospital, and an elderly man and woman were also brought there.1037 Alija Holjan was sent home
from the hospital, but he continued to receive outpatient treatment and was on sick leave for one
month.1038 Since the injury, he cannot use his right hand for extended periods of time and
experiences pain when the weather changes.1039 He has been declared 20 per cent disabled.1040 W-
118 said that the incident had a psychological as well as a physical impact on her life.1041 Since the
incident, W-118 no longer works as a tram driver.1042
295. UNPROFOR and BiH police who were deployed at the junction of the Faculty of Natural
Sciences and Mathematics inspected the tram immediately after the incident.1043 30 bullet holes and
1029 Alija Holjan, 4 Apr 2007, T. 4478, P525, p. 2, P526, p. 3.
1030 Alija Holjan, 4 Apr 2007, T. 4478, P525, p. 2.
1031 W-118, 6 Feb 2007, T. 1625, P175, p. 2 (under seal).
1032 W-118, 6 Feb 2007, T. 1625, P175, p. 2 (under seal).
1033 W-118, 6 Feb 2007, T. 1625, P175, p. 2 (under seal).
1034 Alma Mulaosmanovi, 6 Feb 2007, T. 1653, 1662, P178, p. 2, P179 p. 3.
1035 W-118, 6 Feb 2007, T. 1620, P174, p. 2 (under seal), P175, p. 2 (under seal); D39, Photograph marked by W-118.
1036 W-118, 6 Feb 2007, T. 1623. In her written statements, W-118 refers to the faculty of natural sciences as the
Faculty of Mathematics. See also, Alija Holjan, P524, p. 1, P525, p. 2; Alma Mulaosmanovi, 6 Feb 2007, T. 1653;
P180, Map marked by Alma Mulaosmanovi; Sabina Sabani, 2 Feb 2007, T. 1473; D36, Photograph marked by Sabina
Sabani. The Trial Chamber will refer to that building as the Faculty of Natural Sciences and Mathematics.
1037 Alma Mulaosmanovi, 6 Feb 2007, T. 1658, 1679, P178, p. 2, P179, p. 3; P453, Medical record (under seal); Alija
Holjan, P524, p. 1, P525, p. 2, P526, p. 3.
1038 Alija Holjan, P524, p. 1, P525, p. 2; P470, Medical record (under seal), pp 1- 2 Alija Holjan, P524, p. 1.
1039 Alija Holjan, P524, p. 1, P525, p. 2.
1040 Alija Holjan, P526, p. 3.
1041 W-118, 6 Feb 2007, T. 1626 – 1627.
1042 W-118, 6 Feb 2007, T. 1626.
1043 W-118, P174, p. 2 (under seal), P175, p. 2 (under seal). In this regard the Trial Chamber notes that neither of the
parties submitted a criminal investigation file of this incident, however, it also notes that Alija Holjan gave a statement
to the BiH Police.
100
Case No IT-98-29/1-T 12 December 2007
marks were found on the left side of the tram just below and on the windows.1044 The tram could
not be driven normally anymore because one of the control wires had been hit.1045
296. W-118, Alija Holjan and Alma Mulaosmanovi} all gave evidence that the shots had come
from the high-rise buildings in Grbavica, to the South of the tram. The Trial Chamber recalls that
the high-rises were held by the SRK.1046 Alma Mulaosmanovi explained that the high-rise
buildings and the Vraca Hills were visible and that she was “within their field of vision.”1047 She
further noted that “had the shots come from a closer area, it would have been louder.”1048
According to W-118 and Alma Mulaosmanovi, the area where the tram came under fire was
known to be dangerous since it was “an open space and in good view.”1049 According to Alija
Holjan, there was a passage between the buildings toward the Technical School and that was the
only place where one could see the tram from Grbavica.1050
297. W-118 testified that she saw one ABiH soldier on the tram, standing next to her.1051
However, Alma Mulaosmanovi does not remember seeing any ABiH soldiers on the tram.1052 W-
118 and Alija Holjan also testified that there were no soldiers or vehicles near the tram on that day
and there was nothing else of a military nature in the area.1053 The Marshal Tito Barracks was the
closest military facility to the location where the tram was hit.1054
298. The Defence suggested that there was occasional shooting and fighting, between the two
warring factions, something W-118 could not confirm.1055 In fact, W-118, Alma Mulaosmanovi
and Alija Holjan all testified that there was no combat activity near or around the tram on the day of
the incident.1056 Alma Mulaosmanovi} also testified that there were trees, probably both evergreens
and deciduous, between the tram tracks and the Miljacka River that obstructed the view to the river
1044 W-118, P174, p. 2 (under seal), 6 Feb 2007, T. 1626.
1045 W-118, P175, p. 2 (under seal).
1046 See supra, para. 228. See also, D41, Report from General Rose’s Headquarters to UNPROFOR Headquarters in
Zagreb describing incidents of 27 February 1995, dated 28 February 1995 (“UNPROFOR HQ sitrep, 28 February
1995”), p. 23.
1047 Alma Mulaosmanovi, 6 Feb 2007, T. 1657 – 1658, 1672, 1674.
1048 Alma Mulaosmanovi, 6 Feb 2007, T. 1654.
1049 W-118, 6 Feb 2007, T. 1624; Alma Mulaosmanovi, 6 Feb 2007, T. 1657.
1050 Alija Holjan, P525, p. 2.
1051 W-118, 6 Feb 2007, T. 1623, P175, p. 2 (under seal).
1052 Alma Mulaosmanovi, 6 Feb 2007, T. 1656.
1053 W-118, 6 Feb 2007, T. 1623 – 1624, P175, p. 2 (under seal); Alija Holjan, 4 Apr 2007, T. 4471, 4474 – 4475, P526,
p. 3.
1054 Alma Mulaosmanovi, P179, p. 3; W-118, P175, p. 2 (under seal).
1055 W-118, 6 Feb 2007, T. 1637.
1056 W-118, 6 Feb 2007, T. 1624, 1637, 1648, P174, p. 2 (under seal); Alma Mulaosmanovi, 6 Feb 2007, T. 1656; Alija
Holjan, 4 Apr 2007, T. 4471.
101
Case No IT-98-29/1-T 12 December 2007
and “the area between the warring factions.”1057 Alija Holjan testified that the confrontation line
may have been about 1,000 metres away on the hills from the place where the tram was shot.1058
299. The Defence raised the possibility that the shots which hit the tram may have been the result
of fighting at the Vrbanja Bridge. When asked by the Defence whether the first shots she heard
were the shots that hit the tram, Alma Mulaosmanovi explained that she thought that she heard
shots being fired before the tram was hit, but that she was not certain.1059 In response to the Defence
question whether she thought the earlier shots had come from the territory controlled by the ABiH,
she testified that:
“It was even the same sort of sound when the bullets were fired. There was no change at all to the
sound, not in terms of the distance. This was several moments before the tram was hit; therefore, it
is very difficult to determine. The tram was moving and the time lag between the two was very
short. There was not much fighting going on or anything.”1060
During cross-examination, Alija Holjan explained that he did not hear any shooting before the
incident and he was sure that the shots only came from the left side.1061
300. An UNPROFOR report of the same day, tendered by the Defence, stated that eight shots
were fired at a tram near the Holiday Inn, resulting in one confirmed civilian casualty and three
other possible casualties. The report pointed out that the origin of the shots was assessed from the
“Vrbanja Bridge/Red building area” where a “fire fight” between the SRK and the ABiH had
occurred at the same time.1062 A few pages later, the report stated that UNMO had investigated the
alleged sniper fire and confirmed that the tram was hit by nine shots at the Holiday Inn and that the
fire came from the South.1063
301. W-118 and Alma Mulaosmanovi were confronted with this information during crossexamination.
W-118 explained that this report probably did not refer to the incident on her tram, as
it stated that there was a “fire fight” between the two factions.1064 Alma Mulaosmanovi could also
not confirm that there had been a “fire fight” between the warring factions at the time of the
incident.1065 Further, the report referred to the area “near” the Holiday Inn, which, according to W-
118, could have been a reference to the area of Marindvor and Holiday Inn and not to the area
further down, near the Marshal Tito Barracks where the tram was hit.1066 The area of the “Vrbanja
1057 Alma Mulaosmanovi, 6 Feb 2007, T. 1664 – 1665; D42, Photograph marked by Alma Mulaosmanovi.
1058 Alija Holjan, 4 Apr 2007, T. 4473, P526, p. 3.
1059 Alma Mulaosmanovi, 6 Feb 2007, T. 1662.
1060 Alma Mulaosmanovi, 6 Feb 2007, T. 1666 – 1667; D42, Photograph marked by Alma Mulaosmanovi.
1061 Alija Holjan, 4 Apr 2007, T. 4479 – 4480.
1062 D41, UNPROFOR HQ sitrep, 28 February 1995, pp 2, 9.
1063 D41, UNPROFOR HQ sitrep, 28 February 1995, p. 23.
1064 W-118, 6 Feb 2007, T. 1642 – 1645.
1065 Alma Mulaosmanovi, 6 Feb 2007, T. 1671 – 1672.
1066 D41, UNPROFOR HQ sitrep, 28 February 1995, p. 2; W-118, 6 Feb 2007, T. 1642 – 1644.
102
Case No IT-98-29/1-T 12 December 2007
Bridge/Red building”, as indicated as origin of fire in the UNPROFOR report, was, according to W-
118, not the same as the Grbavica area she had indicated as the origin of fire.1067 This was
confirmed by Alma Mulaosmanovi, who marked the two different neighbourhoods on a
photograph.1068
302. Brig. Gen. David Fraser was also questioned by the Defence about the UNPROFOR report.
He explained that the report comprised information from different levels of command.1069 He
testified that discrepancies in the report, such as the number of shots, are not unusual in this kind of
report.1070 According to Brig. Gen. Fraser, the report, read as a whole, shows that there were two
concurrent occurrences: a fire fight at the Vrbanja Bridge, and sniping against a tram.1071 He could
not confirm, based on the information in the report, that it was the shooting from the Vrbanja
Bridge that hit the tram.1072 Instead he testified, “I am reading the report as if the tram was
actually specifically targeted, from what the words are saying here, “sniper fire against a tram.”
That is a very deliberate, definite action.”1073
303. Lt. Van der Weijden was not questioned about this incident by either of the parties. In his
report, he concluded that automatic fire, most likely from a M84 or M53 machinegun, was used
since there were a number of victims and several shots were fired at a rapid rate.1074 It is observed
that the UNPROFOR report also makes mention of a machinegun cease-fire violation in relation to
the incident on the tram.1075
304. Lt. Van der Weijden further stated in his report that the likely location of the sniper was the
Metalka Building.1076 However, the Trial Chamber notes that Lt. Van der Weijden placed the tram
at the intersection between the Museum and the Holiday Inn, some distance to the east of the place
where the eyewitnesses indicated the tram was hit. W-118, Alma Mulaosmanovi and Alija Holjan,
1067 D41, UNPROFOR HQ sitrep, 28 February 1995, p. 2; W-118, 6 Feb 2007, T. 1647 – 1648.
1068 Alma Mulaosmanovi, 6 Feb 2007, T. 1676 – 1677; P181, Photograph marked by Alma Mulaosmanovi; P182,
Photograph marked by Alma Mulaosmanovi.
1069 David Fraser, 8 Feb 2007, T. 1881 – 1882.
1070 David Fraser, 8 Feb 2007, T. 1885.
1071 David Fraser, 8 Feb 2007, T. 1887 – 1888.
1072 David Fraser, 8 Feb 2007, T. 1887.
1073 David Fraser, 8 Feb 2007, T. 1887.
1074 P514, Expert report Patrick van der Weijden, p. 28, Appendix A.
1075 D41, UNPROFOR HQ sitrep, 28 February 1995, p. 9; David Fraser, 8 Feb 2007, T. 1884.
1076 P514, Expert report Patrick van der Weijden, p. 29; P515, Photograph marked by Patrick van der Weijden; P104,
Street map of Sarajevo; P583, Photograph marked by Mirza Sabljica; P97, Photograph marked by Slavica Livnjak;
P222, Photograph marked by Asam Butt; P223, Photograph marked by Asam Butt; P166, Photograph marked by Alen
Gievi; P754, Photograph marked by Milorad Kati}.
103
Case No IT-98-29/1-T 12 December 2007
all gave evidence that the shot was fired from one of the high-rise buildings located on Lenjinova
Street in Grbavica.1077
305. Col. Stamenov stated in his report that it was impossible to identify the location from which
the projectile was fired with any certainty, since neither the exact location of the tram when the fire
started, nor the direction of fire, nor the type of weapon used was established.1078
Findings
306. The Trial Chamber is in a position to rule out the possibility that the projectile came from
the Vrbanja Bridge, where the evidence clearly shows that there was a fire-fight between the two
parties, because the maps and photographs discussed in court indicate that there was no line of sight
between the Vrbanja Bridge and the tram. There were no high-rise buildings at that bridge and the
path of a bullet from that position, shot towards the Marshal Tito Barracks, would have been
obstructed by several buildings.1079 This finding is in no way affected by the conflicting evidence as
to where the tram was hit, be it at the Holiday Inn or at the Marshal Tito Barracks.
307. In view of the fact that there was no clear line of sight between the Metalka Building and the
tram at the Marshal Tito Barracks, the Trial Chamber finds that the projectile was fired from the
high-rise buildings in Grbavica, in SRK-held territory. There is no evidence that the shots
originated from ABiH territory. The Trial Chamber finds that there was a clear view from the highrise
buildings on Lenjinova Street in Grbavica onto the intersection at the Marshal Tito Barracks.
The Trial Chamber’s finding is supported by the consistent testimony of eyewitnesses as to the
origin of fire and the location of the tram.
308. The Trial Chamber also finds that Alija Holjan and Alma Mulaosmanovi}, both civilians,
were seriously injured in this incident.
309. The only evidence pertaining to Senad Kešmer, who was one of the victims mentioned in
the Indictment, was an extract from a medical record from a hospital in Sarajevo, dated 27 February
1995, which stated that Senad Kešmer received treatment at an out-patient clinic and was
discharged for home treatment.1080 The Trial Chamber is able to make a finding that Senad Kešmer
suffered an injury, but is not in a position to attribute this injury to the SRK because the only
1077 W-118, 6 Feb 2007, T. 1620, 1622 – 1623, 1636, P174, p. 2 (under seal); P176, Map marked by W-118; P177,
Photograph marked by W-118; Alma Mulaosmanovi, 6 Feb 2007, T. 1653 – 1655, 1657, 1678, P178, p. 2, P179, p. 2;
P180, Map marked by Alma Mulaosmanovi; P181, Photograph marked by Alma Mulaosmanovi; Alija Holjan, 4 Apr
2007, T. 4473, P525, p. 2, P526, p. 3; P104, Street map of Sarajevo; D215, Map marked by Vaso Elez.
1078 D360, Expert report Ivan Stamenov, p. 16.
1079 See P181, Photograph marked by Alma Mulaosmanovi; P182, Photograph marked by Alma Mulaosmanovi.
104
Case No IT-98-29/1-T 12 December 2007
evidence is a medical record that is silent with regard to the circumstances under which Senad
Kešmer sustained his injury.
310. In addition, the Trial Chamber received medical documentation with regard to two other
persons who sustained gunshot wounds on the same day.1081 However, it is not clear whether the
two persons were victims of the incident on the tram on 27 February 1995. The UNPROFOR
report, in different sections, variously referred to three to four injured persons, but only confirmed
one casualty, a woman who was injured in her leg and underwent surgery.1082 This information is
corroborated by W-118’s and Alija Holjan’s testimony.1083 In addition to Alija Holjan and Alma
Mulaosmanovi} being injured on the tram, the evidence shows that one unknown woman was shot
in the leg. The Trial Chamber is, therefore, satisfied that at least three persons were seriously
injured on the tram on 27 February 1995 by shots originating from SRK-held territory. In light of
the fact that there is nothing in the evidence suggesting that the shot could have been fired by
anyone other than a member of the SRK, the Trial Chamber concludes that the shots were fired by a
member of the SRK.
e. Sniping of Azem Agovi} and Alen Gi~evi} on 3 March 1995
311. The third of March 1995 was the Muslim Bajram holiday.1084 There was no military activity
that morning.1085 A cease-fire was in place.1086 At around noon, a tram driven by Slavica Livnjak
was travelling along Zmaja od Bosne from west to east, that is, from engi Vila toward
Bašaršija.1087
312. Alen Gievi, his girlfriend and Azem Agovi were among the many passengers on the
tram.1088 Alen Gievi was wearing black trousers and was standing just behind the middle part of
the tram, next to the third door on the right-hand side, facing the SRK-held positions of Vraca and
the Jewish Cemetery.1089 Grbavica and the southern part of town were to his right.1090 He had been a
1080 P468, Medical record (under seal).
1081 P465, Medical record (under seal); P469, Medical record (under seal).
1082 D41, UNPROFOR HQ sitrep, 28 February 1995, pp 2, 9, 23.
1083 W-118, 6 Feb 2007, T. 1626, P174, p. 2; Alija Holjan, 4 Apr 2007, T. 4478, P525, p. 2.
1084 Alen Gievi, P164, p. 3, Azem Agovi, P210, p. 2, P211, p. 2.
1085 Slavica Livnjak, 23 Jan 2007, T. 863, P95, p. 3; Alen Gievi, 5 Feb 2007, T. 1566, P163, p. 2; Azem Agovi, 13
Feb 2007, T. 2052, P210, p. 2, P211, p. 2.
1086 Slavica Livnjak, 23 Jan 2007, T. 859 – 860, 862, P95, p. 2; Alen Gievi, P164, p. 2; Azem Agovi, P211, p. 2.
1087 Slavica Livnjak, 23 Jan 2007, T. 857, P94, p. 2, P95, p. 3; Alen Gievi, 5 Feb 2007, T. 1556, P163, p. 2, P164, p.
3; Azem Agovi, P210, p. 2, P211, p. 2.; W-118, P174, p. 2 (under seal); Zlatko Me|edovi,P649, p. 6; P96,
Photograph marked by Slavica Livnjak; D23, Criminal investigation file, pp 2, 4, 5, 7.
1088 Alen Gievi, P163, p. 2, P164, p. 3; Azem Agovi, P210, p. 2, P211, p. 2.
1089 Alen Gievi, 5 Feb 2007, T. 1556, P163, p. 2, P164, pp 2 – 3.
1090 Alen Gievi, 5 Feb 2007, T. 1556.
105
Case No IT-98-29/1-T 12 December 2007
member of the ABiH, but had been demobilised from the army nine months before this incident.1091
Azem Agovi was seated facing the rear of the tram, with Grbavica to his left.1092 He was wearing a
three-piece grey suit.1093
313. When the tram passed the area between the Parliament and the Faculty of Philosophy, Azem
Agovi heard firing.1094 Alen Gievi, Azem Agovi and Slavica Livnjak testified that the tram was
hit in the area of the Holiday Inn, close to the National Museum, just before the S-curve in the tram
tracks.1095 There were no military institutions, vehicles or equipment present in the vicinity; the
closest military facility was the Marshal Tito Barracks.1096
314. The passengers screamed and threw themselves on the floor in panic. Alen Gievi
explained that “we all fell, on the one hand because the tram swerved and on the other hand because
bullets started flying.”1097 He immediately felt severe pain just above his right knee and he was
bleeding.1098 Azem Agovi explained that he suddenly felt severe pain just above his left hip; a
bullet had entered just above his left hip and passed through his body and exited on the right
side.1099 Azem Agovi saw that a young man and a child had been wounded as well.1100 Alen
Gievi testified that another man, sitting between him and the door was injured and was
bleeding.1101 Slavica Livnjak saw that an old man and a young man, located in the second tram car,
were wounded.1102 The investigation conducted after the incident confirmed that Alen Gievi,
Azem Agovi and a third person had been injured during the incident.1103
1091 Alen Gievi, 5 Feb 2007, T. 1571 – 1572, P164, p. 3.
1092 Slavica Livnjak, P94, p. 2, P95, p. 3, stating that the tram was carrying about 100 “civilians”; Azem Agovi, 13 Feb
2007, T. 2052, P210, p. 2, P211, p. 2.
1093 Azem Agovi, 13 Feb 2007, T. 2052, P211, p. 2.
1094 Azem Agovi, P211, p. 2.
1095 Slavica Livnjak, 23 Jan 2007, T. 858, 862, 864, P94, p. 2, P95, p. 3; Alen Gievi, 5 Feb 2007, T. 1557, 1561 –
1562, P163, pp 2, 6; Azem Agovi, P210, p. 2; P165, Map marked by Alen Gievi; P166, Photograph marked by Alen
Gievi; P167, Photograph marked by Alen Gievi; P96, Photograph marked by Slavica Livnjak; P97, Photograph
marked by Slavica Livnjak; D23, Criminal investigation file, pp 2, 4 – 5, 7-8. For S-curve, see also, supra, paras 217,
255, 257.
1096 Alen Gievi, P163, p. 2, P164, p. 3; Azem Agovi, P211, p. 3. According to Alen Gievi the Marshal Tito
Barracks was about 900 metres away; Slavica Livnjak, 23 Jan 2007, T. 863, 877 – 878, P94, p. 2, P95, p. 3, Slavica
Livnjak, 23 Jan 2007, T. 877.
1097 Alen Gievi, 5 Feb 2007, T. 1573, P163, p. 2, P164, p. 3; Slavica Livnjak, P95, p. 3.
1098 Alen Gievi, 5 Feb 2007, T. 1557, P163, p. 2, P164, p. 3; D23, Criminal investigation file, pp 4, 8; Zlatko
Me|edovi, P649, p. 7.
1099 Azem Agovi, 13 Feb 2007, T. 2053, P210, p. 2, P211, p. 2; D23, Criminal investigation file, pp 4, 8; P454,
Medical record (under seal); Zlatko Me|edovi, P649, p. 7.
1100 Azem Agovi, P210, p. 2, P211, p. 2.
1101 Alen Gievi, 5 Feb 2007, T. 1579 – 1580, P163, p. 2.
1102 Slavica Livnjak, 23 Jan 2007, T. 869, P95, p. 3.
1103 D23, Criminal investigation file, pp 2, 4 – 5, 8.
106
Case No IT-98-29/1-T 12 December 2007
315. The tram continued until it reached some containers near an old “tobacco building”, near the
Executive Council Building, which offered shelter from sniper fire.1104 According to the BiH police
report, the tram was hit between the accordion and the first door of the second car, at the level of
the seat.1105 Alen Gievi left the tram and did not talk to the tram driver or to the police after the
incident.1106 He walked to the State Hospital with the help of his girlfriend.1107 A part of the bullet
was lodged in his knee and was extracted seven days later.1108 Alen Gievi still suffers from this
injury; his blood circulation is poor, he feels pain in his tibia and gets tired quickly.1109 Azem
Agovi} was brought by a car to Koševo Hospital where he stayed for a month, 16 days of which
were in intensive care.1110 He required treatment for another three years and initially could not walk
far, drive a car or carry heavy things.1111
316. There was evidence that on the same day, just after the incident occurred, W-118 was
driving a tram from Remiza towards the centre of the town.1112 She stopped the tram behind
containers where three trams other trams were already taking shelter.1113 W-118 further stated that,
after a while, Bosnian Serbs started shooting from the direction of Grbavica and that UNPROFOR
soldiers fired back in that direction.1114 One UNPROFOR soldier was injured and taken to
hospital.1115 W-118 explained that the cross-fire lasted for 15 minutes.1116
317. Azem Agovi} stated that the bullet that hit him came from a building in Zagrebaka Street,
located at the edge of Grbavica.1117 According to Alen Gievi, there were two or three shots, but
he was not sure whether they were fired from one or several different locations.1118 He stated that he
was sure that the shot came from the direction of the Jewish Cemetery, based on the sounds of the
shots.1119 During his testimony in court, he explained that he assumed the shots came from one of
the high-rise buildings in Grbavica or from the Metalka Building.1120 Slavica Livnjak also testified
1104 Alen Gievi, 5 Feb 2007, T. 1580, P163, p. 2, P164, p. 3; Azem Agovi, P210, p. 2, P211, p. 3; Slavica Livnjak, 23
Jan 2007, T. 863, P95, p. 3.
1105 Slavica Livnjak, 23 Jan 2007, T. 868 – 869; D23, Criminal investigation file, pp 2, 5, 7-8.
1106 Alen Gievi, 5 Feb 2007, T. 1574; W-118, P174, p. 2 (under seal).
1107 Alen Gievi, 5 Feb 2007, T. 1578, P163, p. 2, P164, p. 3; Slavica Livnjak, P95, p. 3; W-118, P174, p. 2 (under
seal); D23, Criminal investigation file, pp 2, 5.
1108 Alen Gievi, 5 Feb 2007, T. 1580, 1582, P163, p. 2; P454, Medical record (under seal).
1109 Alen Gievi, P163, p. 2.
1110 Azem Agovi, P210, p. 2, P211, p. 3; P466, Medical record (under seal); Slavica Livnjak, P95, p. 3; D23, Criminal
investigation file, pp 2, 5.
1111 Azem Agovi, P210, p. 2, P211, p. 3.
1112 W-118, P174, p. 2 (under seal).
1113 W-118, P174, p. 2 (under seal).
1114 W-118, P174, p. 2 (under seal); Zlatko Me|edovi, P649, p. 7.
1115 W-118, P174, p. 2 (under seal); D23, Criminal investigation file, pp 2, 5, 8.
1116 W-118, P174, p. 2 (under seal).
1117 Azem Agovi, P210, p. 2, P211, p. 2; D220, Photograph marked by Vaso Elez; P104, Street map of Sarajevo.
1118 Alen Gievi, 5 Feb 2007, T. 1559 – 1560, 1573, P163, p. 2, P164, p. 3.
1119 Alen Gievi, P163, p. 2.
1120 P165, Map marked by Alen Gievi; P166, Photograph marked by Alen Gievi; Alen Gievi, 5 Feb 2007, T.
1559, 1561.
107
Case No IT-98-29/1-T 12 December 2007
that the shots came from the direction of the Metalka Building in Grbavica.1121 The BiH police
investigation team were not able to determine the origin of fire.1122
318. Lt. Van der Weijden, in his report, also concluded that the fire originated from the Metalka
Building.1123 He pointed out that the tram took at least eight seconds to pass the S-curve.1124 In this
respect, the Trial Chamber recalls the evidence of Lt. Van der Weijden and Col. Stamenov as to the
visibility of trams at the S-curve.1125 It also recalls its earlier finding that at the start of the S-curve,
where the tracks cross the road, the Metalka Building is visible.1126
319. According to Azem Agovi and Alen Gievi, the third of March was a sunny day.1127
However, according to Col. Stamenov, it was raining in the morning of 3 March 1995 and the
visibility was poor, and that according to a NATO weather report, it was a bit overcast at noon.1128
320. An on-site investigation conducted on the same day, established that “a single bullet” fired
from “aggressor positions” at Grbavica had hit the tram.1129 When Alen Gievi was confronted
with this information during cross-examination, he maintained that he knew two to three shots were
fired at the tram, because he “heard it” and “felt it”.1130 In response to questions from the Defence,
W-91, a police officer who investigated the incident, testified that the BiH police was not able to
determine the exact location of the sniper because the tram continued moving after it was shot, in
order to take cover in the safe area.1131 In general, he testified, trams were shot at from the South,
from the Grbavica area.1132 Col. Stamenov’s report does not address the origin of fire in this
incident.
321. In terms of the type of weapon used, Lt. Van der Weijden concluded that automatic fire,
most likely from a M84 or M53 machinegun, was probably used as there were a number of victims
and several shots were fired at a rapid rate.1133 The criminal investigation file also stated that
“automatic” fire had been opened on the tram.1134 In his written statement, W-91 stated that it was
1121 Slavica Livnjak, 23 Jan 2007, T. 860, 862, P94, p. 2, P95, p. 3; P97, Photograph marked by Slavica Livnjak.
1122 Zlatko Me|edovi,P649, p. 3.
1123 P514, Expert report Patrick van der Weijden, p. 32. Lt. Van der Weijden considered the Jewish Cemetery as a
possible location, but dismissed that possibility, ibid.
1124 P514, Expert report Patrick van der Weijden, p. 33. See also, C14, Photographs taken during site visit, pp 2 – 7.
1125 See supra, paras 258 – 259.
1126 See supra, paras 265; C14, Photographs taken during site visit, pp 24 – 26.
1127 Slavica Livnjak, 23 Jan 2007, T. 863, P95, p. 3; Azem Agovi, 13 Feb 2007, T. 2052, P211, p. 2.
1128 Ivan Stamenov, 22 Aug 2007, T. 9030; D362, NATO weather report for Sarajevo, p. 3.
1129 D23, Criminal investigation file, pp 2, 4 – 5, 7; W-91, 15 Mar 2007, T. 3793, 3795; Zlatko Me|edovi, P649, pp 6
– 7.
1130 Alen Gievi, 5 Feb 2007, T. 1578, P163, p. 2.
1131 W-91, 15 Mar 2007, T. 3801.
1132 W-91, 15 Mar 2007, T. 3800. See also, D23, Criminal investigation file, p. 2.
1133 P514, Expert report Patrick van der Weijden, p. 31, Appendix A.
1134 D23, Criminal investigation file, pp 4, 7.
108
Case No IT-98-29/1-T 12 December 2007
common for the Bosnian Serb Army to fire fragmentation bullets at the trams.1135 However, from
the information in the criminal investigation file he could not conclude that the bullet which hit the
tram was a fragmentation bullet.1136 Col. Stamenov stated in his report that there were no material
traces on the basis of which one could establish with any certainty whether two or three persons
were wounded by a single projectile.1137 He also testified that with the sniper weapons likely to
have been used in this incident, there is no such bullet that would have a fragmentation effect.1138 In
his opinion, the incident could not be classified as a sniper attack.1139
Findings
322. On the basis of the evidence of witnesses, including eyewitnesses and documentary
evidence, the Trial Chamber finds that the tram was shot in front of the Holiday Inn, just before the
S-curve, and that Azem Agovi and Alen Gievi, both civilians, were seriously injured by the
shots. In its Final Brief, the Defence drew attention to the fact that the police was unable to
establish the direction of fire.1140 However, the Trial Chamber finds that, although the exact location
of the shooter could not be established by the BiH police, all eyewitnesses and the Prosecution
expert Lt. Van der Weijden confirm that the shots came from Grbavica, which, the Trial Chamber
recalls, was SRK-held territory.1141 The Defence further submitted that there is a discrepancy
between the number of bullets and the number of victims.1142 The Trial Chamber is satisfied that
more than one bullet hit the tram and injured Azem Agovi and Alen Gievi.
323. As for the Defence arguments relating to the poor visibility on that day, the Trial Chamber
notes that the NATO weather report reflects that at around noon, when the incident took place, there
was no rain or fog and the visibility was between 7,000 to 8,000 metres.1143 Therefore, the Trial
Chamber is satisfied that the visibility was sufficient for a shooter to identify the victims as
civilians.
324. In relation to the general argument by the Defence that ABiH troops were positioned
between the tram tracks and the SRK-held area of Grbavica - a claim that was also confirmed by
W-91 - the Trial Chamber finds that there is no evidence that the shots actually came from the
ABiH-held territory; rather, the evidence is that shots came from SRK-held territory. In light of the
1135 W-91, P371, p. 2 (under seal).
1136 W-91, 15 Mar 2007, T. 3795 – 3796, P371, p. 2 (under seal).
1137 D360, Expert report Ivan Stamenov, p. 16.
1138 Ivan Stamenov, 22 Aug 2007, T. 9051.
1139 D360, Expert report Ivan Stamenov, p. 16.
1140 Defence Final Brief, para. 180.
1141 See supra, para. 228.
1142 Defence Final Brief, para. 180.
109
Case No IT-98-29/1-T 12 December 2007
fact that there is nothing in the evidence suggesting that the shot could have been fired by anyone
other than a member of the SRK, the Trial Chamber concludes that the shots were fired by a
member of the SRK.
f. Sniping of D`enana Sokolovi} and Nermin Divovi} on 18 November 1994
325. In the evening of 17 November 1994, Dženana Sokolovi, her seven-year-old son Nermin
Divovi, and her eight-year-old daughter Enida Divovi went to Hrasno to collect firewood.1144 The
day after, around noon, they returned to their home in Bistrik.1145 According to Dženana Sokolovi,
there was a cease-fire in place on 18 November 1994 and the trams were running.1146 It was a nice
day.1147
326. There were no soldiers around and no combat going on in the area at the time of the
incident.1148 However, John Jordan testified that snipers were active in the area that day and there
had been a few instances of people being shot and wounded.1149 UNPROFOR soldiers guarded the
area on Zmaja od Bosne around the cross-road near the Holiday Inn, and GOFRS volunteers were
also present in the area.1150
327. While walking down the Zmaja od Bosne, in the area of Holiday Inn and the Faculty of
Philosophy, Enida Divovi, who was walking in front of her mother and brother, started to cross the
Franje Rakog Street, which runs perpendicular to the Zmaja od Bosne.1151 Dženana Sokolovi and
her son, Nermin Divovi, followed, walking side by side, talking to each other.1152 Nermin Divovi
was to the left of her, holding onto her jacket.1153 As they crossed the Franje Rakog Street, at the
zebra-crossing, Dženana Sokolovi and Nermin Divovi were shot.1154 They had walked past the
1143 D362, NATO weather report for Sarajevo, p. 2.
1144 Dženana Sokolovi, 22 Jan 2007, T. 764 – 765.
1145 Dženana Sokolovi, 22 Jan 2007, T. 763, 765.
1146 Dženana Sokolovi, 22 Jan 2007, T. 765 – 766.
1147 John Jordan, 21 Feb 2007, T. 2650. See also, Dženana Sokolovi, 22 Jan 2007, T. 772 – 773.
1148 Dženana Sokolovi, 22 Jan 2007, T. 810; D19, Criminal investigation file, D`enana Sokolovi} (“Criminal
investigation file”), p. 2.
1149 John Jordan, 21 Feb 2007, T. 2650, P267, p. 3. See also, P868, UNPROFOR daily sitrep, dated 18 November 1994,
p. 8.
1150 Dženana Sokolovi, 22 Jan 2007, T. 786; John Jordan, 21 Feb 2007, T. 2650, P267, p. 3; D19, Criminal
investigation file, p. 2.
1151 Dženana Sokolovi, 22 Jan 2007, T. 766, 769; D19, Criminal investigation file, p. 1, P104, Street map of Sarajevo.
1152 Dženana Sokolovi, 22 Jan 2007, T. 785; P88, Photograph marked by Dženana Sokolovi.
1153 Dženana Sokolovi, 22 Jan 2007, T. 773, 784; P941, Videoclip with Dženana Sokolovi (under seal).
1154 Dženana Sokolovi, 22 Jan 2007, T. 773, 784; John Jordan, 21 Feb 2007, T. 2651, 2666, 2671 – 2672, 2677; D19,
Criminal investigation file, pp 1, 3; P271, Videoclip of sniping incident; P272, Photo from the “Providence Journal –
Bulletin”; D79, Photograph marked by John Jordan; P868, UNPROFOR daily sitrep, 18 November 1994, p. 8.
110
Case No IT-98-29/1-T 12 December 2007
Museum by that time.1155 Dženana Sokolovi saw her son fall down, but she did not realise that he
had been shot until later.1156 She also did not realise until later that she herself had been shot.1157
328. After the incident, two APCs of the UNPROFOR French Battalion arrived and parked in the
Franje Rakog Street.1158 An GOFRS armoured ambulance also arrived and parked as a protection
between the source of gun-fire and Nermin Divovi, who was lying on the zebra-crossing.1159
Nermin Divovi died on the way to the hospital and was taken to the mortuary.1160 Dženana
Sokolovi and her daughter were taken to Koševo Hospital by a UN vehicle.1161 Dženana Sokolovi
underwent surgery and stayed in hospital for seven or eight days.1162 She was unable to attend her
son’s funeral.1163 Since the incident, she has not been able to hold a full-time job.1164
329. Lt. Van der Weijden determined the direction of the shot and the location of the shooter.1165
His report and other evidence showed that the shots came from the Metalka Building, which was
located at the end of the Franje Rakog Street and across the river.1166 According to Lt. Van der
Weijden, the shooter was at a distance of 312 metres from the victims.1167 Rooms in the Metalka
Building offered a direct and clear view of the area between the Museum and the Faculty of
Philosophy.1168 Lt. Van der Weijden concluded that the possible rifles used were Zastava M76,
SVD Dragunov/M91 or Zastava M59/66, or semi-automatic rifles or machine guns, such as M53,
M84 or M87.1169 From the Metalka Building, it would have been possible to identify Dženana
1155 Dženana Sokolovi, 22 Jan 2007, T. 785; John Jordan, 21 Feb 2007, T. 2651; P271, Videoclip of sniping incident;
P272, Photo from the “Providence Journal – Bulletin”.
1156 Dženana Sokolovi, 22 Jan 2007, T. 766 – 767, 779, 796 – 797.
1157 Dženana Sokolovi, 22 Jan 2007, T. 799, 800.
1158 D19, Criminal investigation file, p. 4; Sead Beši, 21 Feb 2007, T. 2601 – 2602.
1159 P271, Videoclip of sniping incident; P272, Photo from the “Providence Journal – Bulletin”; John Jordan, 21 Feb
2007, T. 2650 – 2651, 2652.
1160 Dženana Sokolovi, 22 Jan 2007, T. 780; John Jordan, 21 Feb 2007, T. 2650; D19, Criminal investigation file, p. 2,
4; P271, Videoclip of sniping incident.
1161 Dženana Sokolovi, 22 Jan 2007, T. 793; John Jordan, 21 Feb 2007, T. 2650; P271, Videoclip of sniping incident.
1162 Dženana Sokolovi, 22 Jan 2007, T. 780 – 781; Bakir Nakaš, 25 Jan 2007, 1086 – 1087, 1088; P456, Medical
record, pp 2 – 4 (under seal).
1163 Dženana Sokolovi, 22 Jan 2007, T. 780.
1164 Dženana Sokolovi, 22 Jan 2007, T. 780.
1165 P514, Expert report Patrick van der Weijden, p. 23.
1166 P514, Expert report Patrick van der Weijden, p. 23; P515, Photograph marked by Patrick van der Weijden. See also,
D19, Criminal investigation file, p. 1; P868, UNPROFOR daily sitrep, 18 November 1994; P583, Photograph marked
by Mirza Sabljica; P97, Photograph marked by Slavica Livnjak; P222, Photograph marked by Asam Butt; P223,
Photograph marked by Asam Butt; P166, Photograph marked by Alen Gievi; P754, Photograph marked by Milorad
Kati}; C14, Photographs taken during site visit, pp 14 – 18, 24 – 29; C3, Photographs taken during site visit, pp 12 –
20; P88, Photograph marked by Dženana Sokolovi; P941, Videoclip with Dženana Sokolovi (under seal); D79,
Photograph marked by John Jordan.
1167 Patrick van der Weijden, 29 Mar 2007, T. 4278, 4283; P514, Expert report Patrick van der Weijden, pp 23, 24;
P515, Photograph marked by Patrick van der Weijden; P583, Photograph marked by Mirza Sabljica; P97, Photograph
marked by Slavica Livnjak; P222, Photograph marked by Asam Butt; P223, Photograph marked by Asam Butt; P166,
Photograph marked by Alen Gievi; P754, Photograph marked by Milorad Kati}.
1168 Patrick van der Weijden, 29 Mar 2007, T. 4279; P514, Expert report Patrick van der Weijden, pp 23 – 24; P515,
Photograph marked by Patrick van der Weijden; C14, Photographs taken during site visit, pp 14 – 18, 24 – 29; C3,
Photographs taken during site visit, pp 12 – 20.
1169 P514, Expert report Patrick van der Weijden, p. 22, Appendix A.
111
Case No IT-98-29/1-T 12 December 2007
Sokolovi and her child as an adult and a child, even with the naked eye as the relative size of the
child compared to the mother was very obvious at that range.1170 According to Lt. Van der Weijden,
there was no reason to mistake the victims for combatants.1171
330. Dženana Sokolovi gave conflicting evidence about the exact location of the incident.
During examination-in-chief, she indicated that she and her son were shot as they crossed the Franje
Rakog Street.1172 During cross-examination, she confirmed that they had been shot on the zebracrossing.
1173 Then she explained that she had been confused with regard to the location of the shots
and again said that they were at the sidewalk before the zebra-crossing.1174 She testified that the
precise location of the incident was the one shown in the investigation video, that is, on the sidewalk
closer to the Museum.1175
331. There was also conflicting evidence about the direction of the shot. She sometimes said that
she was hit from the left side.1176 However, she consistently indicated with her hands that the bullet
entered her abdomen on the right side and exited on the left side.1177 She explained that she was a
“little confused” about what is left and what is right.1178
332. The Defence, during cross-examination and in the presentation of its evidence, drew
attention to the entry and exit wounds of both victims. It submitted that the shots could have
originated from ABiH-held territory. According to the medical records of Dženana Sokolovi, the
entry wound was on the left side and the exit wound on the right side.1179 Šefik Bešli, the doctor
who performed the operation on Dženana Sokolovi, explained that the information in the medical
record that the entry wound was on the “paramedian left” and the exit wound to the “paramedian
right” was a mistake made by the doctor who wrote the notes.1180 Šefik Bešli also explained that
the hospital had large numbers of patients, and it was mainly the young doctors who noted down the
information.1181 The doctors may have looked at two or three patients at a time and then written
down information; it was then that this particular doctor might have “switched” the sides in this
1170 Patrick van der Weijden, 29 Mar 2007, T. 4277 – 4278; P514, Expert report Patrick van der Weijden, p. 24.
1171 P514, Expert report Patrick van der Weijden, p. 24.
1172 Dženana Sokolovi, 22 Jan 2007, T. 773 – 774.
1173 Dženana Sokolovi, 22 Jan 2007, T. 784.
1174 Dženana Sokolovi, 22 Jan 2007, T. 804 – 805. See also, P89, 360 Photograph; P941, Videoclip with Dženana
Sokolovi (under seal); D18, Photograph marked by Dženana Sokolovi.
1175 Dženana Sokolovi, 22 Jan 2007, T. 804 – 805.
1176 Dženana Sokolovi, 22 Jan 2007, T. 772. 797.
1177 Dženana Sokolovi, 22 Jan 2007, T. 797, 812; P941, Videoclip with Dženana Sokolovi (under seal).
1178 Dženana Sokolovi, 22 Jan 2007, T. 795.
1179 P456, Medical record, p. 3 (emphasis added) (under seal). Dr. Bakir Nakaš, who was the Director of the Sarajevo
State Hospital during the Indictment period, explained during his testimony that "paramedian" means from the central
axis of the body to the left or to the right, Bakir Nakaš, 25 Jan 2007, 1087.
1180 Šefik Bešli, 3 Apr 2007, T. 4419 – 4420, 4425.
1181 Šefik Bešli, 3 Apr 2007, T. 4426.
112
Case No IT-98-29/1-T 12 December 2007
report.1182 He explained that the correct information was always obtained by looking at the
patient.1183
333. The testimony of both D`enana Sokolovi} and [efik Be{li} was that the bullet entered from
the right side of Dženana Sokolovi’s body and exited on the left side.1184 Šefik Bešli testified that,
based on his experience with gun-shot victims, a review of the medical documentation of her
injuries and his own recent physical examination of her, the entry wound was on the right side and
the exit wound was on the left side of her body.1185 He explained that an entry wound is smaller
than an exit wound and that Dženana Sokolovi’s wound on her left side was larger than the wound
on the right side, thus indicating that the projectile exited her body on the left side and that the
projectile travelled from her right to her left side.1186 The scars of Dženana Sokolovi were typical
of scars resulting from injuries sustained by a bullet.1187 The Defence asked whether it was possible
that the scars on her body had been altered. He replied that there would be a possibility that she had
surgery on the scars, but he dismissed the possibility that a surgeon would create a scar resembling
an exit wound.1188
334. The Defence asked [efik Be{li} whether there was a difference in height between the entry
and exit wounds on the body of Dženana Sokolovi. He replied that the wounds were practically
parallel to each other.1189 In this respect, the Defence expert Col. Stamenov testified that up to 500
metres, the ballistic trajectory of a bullet is almost straight.1190 He testified that if a person is shot
from an elevation, the trajectory would not be parallel to the ground.1191
335. Witnesses testified that the same bullet that had passed through Dženana Sokolovi went
through the head of her son and killed him.1192 Other evidence, introduced by the Defence, suggests
that Nermin Divovi} was shot first, after which the bullet that killed him passed through his
mother’s abdomen.1193
1182 Šefik Bešli, 3 Apr 2007, T. 4426, 4427.
1183 Šefik Bešli, 3 Apr 2007, T. 4429, 4436.
1184 Dženana Sokolovi, 22 Jan 2007, T. 797, 807, 812; Šefik Bešli, 3 Apr 2007, T. 4419 – 4420, 4422 – 44323, P521,
p. 2, D19, Criminal investigation file, p. 4; P941, Videoclip with Dženana Sokolovi (under seal).
1185 Šefik Bešli, 3 Apr 2007, T. 4422 – 4423, 4440 – 4441, P521, p. 2.
1186 Šefik Bešli, 3 Apr 2007, T. 4422, 4429, 4450, P521, p. 2; Bakir Nakaš, 25 Jan 2007, 1088.
1187 Šefik Bešli, 3 Apr 2007, T. 4438.
1188 [efik Be{li}, 3 Apr 2007, T. 4436 – 4438.
1189 Šefik Bešli, 3 Apr 2007, T. 4443; P941, Videoclip with Dženana Sokolovi (under seal).
1190 Ivan Stamenov, 22 Aug 2007, T. 9037 – 9041.
1191 Ivan Stamenov, 22 Aug 2007, T. 9042 – 9043.
1192 Dženana Sokolovi, 22 Jan 2007, T. 772, 779; John Jordan, 22 Feb 2007, T. 2702 – 2703, P267, p. 3.
1193 D19, Criminal investigation file, p. 1.
113
Case No IT-98-29/1-T 12 December 2007
336. Nermin Divovi was killed by a bullet that entered from the right-hand side of his cheek and
exited on the left-hand side of his neck.1194 He was not very tall; his head reached Dženana
Sokolovi’s waist.1195 The Defence tendered a criminal investigation file indicating that the entry
wound was at the back of Nermin Divovi’s head, above the right ear and that the exit wound was
on the face, below the left eye.1196 However, this evidence is neither supported by the Record of
Autopsy on Nermin Divovi nor by the video evidence showing the boy shortly after he was
shot.1197
337. The Defence expert on forensic medicine, Ivica Milosavljevi}, was asked to review the
medical record of D`enana Sokolovi} and the death certificate of Nermin Divovi}, both contained
in a police investigation file tendered by the Defence.1198 Ivica Milosavljevi} testified that the
Autopsy report on Nermin Divovi} showed that he sustained a gun-shot wound to the head and that
the angle of the shot was from below upwards, and from left to right.1199 In relation to the injuries of
D`enana Sokolovi}, he testified that the medical record showed that D`enana Sokolovi} sustained
an entry wound on the left-hand side of her body and an exit wound on the right side of her
body.1200 He commented that the surgeon “probably assumed that the wounds are located
symmetrically”, indicating to him that the projectile had moved parallel to the ground.1201 He
challenged the notion that scars could be used as an indication of the entry or exit wound.1202 In his
opinion, the horizontal trajectory of the projectile that hit D`enana Sokolovi} and the bullet
trajectory shown by the Autopsy Record on Nermin Divovi}, “clearly indicated that these two
persons were injured by two different projectiles.”1203 He further testified that a bullet, when
passing through a human body, does not retain sufficient kinetic energy to subsequently “pierce the
skin on the human body, much less any bones.”1204
338. In cross-examination, the Prosecution confronted Ivica Milosavljevi} with the opinion he
expressed in his report, namely, that the documentation provided to him was insufficient to draw
any conclusions, and asked how he could base his conclusions about the two victims on those
documents. Ivica Milosavljevi} reiterated that the documentation was insufficient to draw forensic
1194 P457 Record of autopsy, p.1 (under seal); Bakir Nakaš, 25 Jan 2007, T. 1085.
1195 Dženana Sokolovi, 22 Jan 2007, T. 786.
1196 D19, Criminal investigation file, p. 4.
1197 P457, Record of autopsy, p.1 (under seal); P271, Videoclip of sniping incident.
1198 Ivica Milosavljevi, 27 Aug 2007, T. 9280 – 9282, 9283 – 9284; D19, Criminal investigation file.
1199 Ivica Milosavljevi, 27 Aug 2007, T. 9280 – 9281.
1200 Ivica Milosavljevi, 27 Aug 2007, T. 9281 – 9282.
1201 Ivica Milosavljevi, 27 Aug 2007, T. 9282.
1202 Ivica Milosavljevi, 27 Aug 2007, T. 9283 – 9284.
1203 Ivica Milosavljevi, 27 Aug 2007, T. 9284.
1204 Ivica Milosavljevi, 27 Aug 2007, T. 9283 – 9284.
114
Case No IT-98-29/1-T 12 December 2007
conclusions and said that the opinion he expressed in court was a “professional supposition.”1205 He
clarified that he could only indicate exactly where the entry and exit wounds were located and what
the direction of the projectile had been.1206 He could not provide more accurate details.1207 In
response to further questions by the Prosecution, he conceded that he only reviewed the medical
documentation provided in the police investigation file, and that he had not been provided with a
statement by [efik Be{li}; he had not tried to contact him or the forensic pathologist who conducted
the autopsy of Nermin Divovi}.1208 The Trial Chamber notes that he did not examine the victims.
Findings
339. There are discrepancies in Dženana Sokolovi’s evidence and in the documentary evidence
with regard to the exact location where she and her son were shot.1209 The Trial Chamber finds that
in spite of those discrepancies, it is clear from the expert report of Lt. Van der Weijden and from
photographic and video evidence in the case that a sniper located in the Metalka Building could
have targeted the victims on both possible locations on Zmaja od Bosne.1210
340. Having considered all the evidence concerning the direction of fire, the medical record of
Dženana Sokolovi, including the circumstances under which the notes on that record were written,
the Trial Chamber is satisfied that Dženana Sokolovi was shot in the right side of her body and
that the bullet went through her abdomen and exited on the left side, continuing through Nermin
Divovi’s head. The video taken immediately after the incident also shows that the locations of the
entry and exit wounds on Nermin Divovi were accurately described in Nermin Divovi’s autopsy
report, and not in the criminal investigation file. Therefore, the opinion of Ivica Milosavljevi} that
the bullet that killed Nermin Divovi} travelled from left to right was based on incorrect information.
341. There is no evidence indicating that the shots came from ABiH-held territory. The Trial
Chamber finds the evidence of Lt. Van der Weijden convincing and concludes that the only
reasonable inference to be drawn is that the shot that killed Nermin Divovi} and wounded Dzenana
Sokolovi}, both civilians, originated from the Metalka Building, a known SRK sniper position. In
light of the fact that there is nothing in the evidence suggesting that the shot could have been fired
1205 Ivica Milosavljevi, 27 Aug 2007, T. 9287 – 9288.
1206 Ivica Milosavljevi, 27 Aug 2007, T. 9288.
1207 Ivica Milosavljevi, 27 Aug 2007, T. 9288.
1208 Ivica Milosavljevi, 27 Aug 2007, T. 9288 – 9290.
1209 The evidence suggesting the were on the zebra-crossing is: Dženana Sokolovi, 22 Jan 2007, T. 773, 784; John
Jordan, 21 Feb 2007, T. 2651, 2666, 2671 – 2672, 2677; D19, Criminal investigation file, pp 1, 3; P271, Videoclip of
sniping incident; P272, Photo from the “Providence Journal – Bulletin”; D79, Photograph marked by John Jordan. The
evidence suggesting they were shot before the zebra-crossing is: Dženana Sokolovi, 22 Jan 2007, T. 775, 804 – 805;
P89, 360 photograph; P941, Videoclip with Dženana Sokolovi; D18, Photograph marked by Dženana Sokolovi.
115
Case No IT-98-29/1-T 12 December 2007
by anyone other than a member of the SRK, the Trial Chamber concludes that the shots were fired
by a member of the SRK.
(ii) Sniping of Targets in Sedrenik
342. Three sniping incidents took place in the area of Sedrenik. The Defence submitted in its
Final Brief that the sector of Sedrenik was a “military zone throughout the conflict and particularly
during the time material to the Indictment.”1211 Witnesses described Sedrenik as a “purely”
residential neighbourhood during the Indictment period.1212 The Trial Chamber recalls that Špicasta
Stijena was held by the SRK and that ABiH forces were positioned in trenches at Grdonj and at the
foot of [picasta Stijena.1213 Based on the evidence of Dervi{a Selmanovi}, Ned`ib \ozo, Tarik
@uni} and Lt. Col. Konings, the Trial Chamber finds that Sedrenik was a civilian area, with a
civilian population. The Trial Chamber’s analysis of the status of Sedrenik is set out elsewhere in
this Judgement and is to be read in conjunction with this paragraph.1214
a. Sniping of Sanela Dedovi} on 22 November 1994
343. On 22 November 1994, Sanela Dedovi}, 13 years old, was walking to the school on
Saburina Street.1215 She did not see any soldiers, military equipment, or possible military targets,
nor was there any combat going on at the time.1216 Sanela Dedovi} testified that it was not raining
and that the visibility was good.1217
344. There were two routes by which Sanela Dedovi} could get to town from her house. The first
was via the Rogina, Sedrenik and Redzepa Gorusanovica intersection.1218 The second was between
houses and through gardens.1219 She decided to take the first route, knowing that approximately 100
metres of the intersection were dangerous.1220 She stated that she would use the intersection on days
1210 P514, Expert report Patrick van der Weijden, p. 23; C14, Photographs taken during site visit, pp 14 – 18, 24 – 29;
C3, Photographs taken during site visit, pp 12 – 20.
1211 Defence Final Brief, para. 184.
1212 Nedžib Ðozo, P363, p. 2; Derviša Selmanovi, P169, p. 2; P514, Expert report Patrick van der Weijden, p. 49.
1213 See supra, para. 140.
1214 See infra, para. 901.
1215 Sanela Dedovi}, 29 Jan 2007, T. 1152, 1154, P109, p. 2, P110, p. 2; P117, Official note, 22 November 1994, p. 1;
P118, Statement of Sanela Dedovi}, dated 13 November 1995, p. 1.
1216 Sanela Dedovi}, 29 Jan 2007, T. 1156, 1176, P109, p. 2.
1217 Sanela Dedovi}, 29 Jan 2007, T. 1155 – 1156.
1218 Sanela Dedovi}, 29 Jan 2007, T. 1154 – 1155, P109, p. 2, P110, p. 2; P118, Statement of Sanela Dedovi},
13 November 1995, p. 1.
1219 Sanela Dedovi}, 29 Jan 2007, T. 1155, P109, p. 2.
1220 Sanela Dedovi}, 29 Jan 2007, T. 1154 – 1155, P109, p. 2, P110, p. 2; P118, Statement of Sanela Dedovi}, 13
November 1995, p. 1. She testified that she chose that route because the backyard and gardens would have been muddy,
which would have made her new shoes dirty, Sanela Dedovi}, 29 Jan 2007, T. 1155.
116
Case No IT-98-29/1-T 12 December 2007
when she did not hear shooting.1221 As she did not hear any shooting on 22 November 1994, she
decided to run across the intersection.1222
345. When Sanela Dedovi} was running across the intersection at around 1110 hours, in order to
reach Rogica Street, she was facing away from [picasta Stijena.1223 From Rogica Street, she would
not have had [picasta Stijena within her view because the street sloped downward.1224 While still
on the intersection, she first felt pain and then heard the sound of the shot.1225 The bullet came from
behind her.1226 The bullet first ricocheted against the asphalt ground, splintered and then a bit of
shrapnel hit her left ankle.1227 Sanela Dedovi} saw blood and hopped on one foot to a shelter behind
a house; people from the house immediately came to help her.1228
346. One of those persons informed UNMOs who were stationed in the area.1229 After the
UNMOs arrived at the shelter, another shot was fired, preventing anyone else from approaching the
intersection.1230 The UNMOs transported Sanela Dedovi immediately to the Ko{evo Hospital
where she was admitted at the Trauma Clinic.1231
347. At the hospital, a lead “fragment” was surgically removed from her ankle.1232 She was in
hospital for about 22 days.1233 According to Sanela Dedovi}, she was hit by a piece of a
fragmentation bullet.1234 Lt. Van der Weijden stated that if the victim had sustained a direct hit, she
would have suffered more serious injuries than she did.1235
348. In 1995, Sanela Dedovi stated that she still felt pain in her ankle during the night, after
walking to school during the day.1236 She also sometimes had seizures and cramps, which she never
experienced prior to being injured.1237
1221 Sanela Dedovi, P110, p. 2, P109, p. 2.
1222 Sanela Dedovi}, 29 Jan 2007, T. 1155.
1223 Sanela Dedovi}, 29 Jan 2007, T. 1154, 1163, 1168, 1174; P118, Statement of Sanela Dedovi}, 13 November 1995,
p. 1; P117, Official note, p. 1.
1224 Sanela Dedovi}, 29 Jan 2007, T. 1163 – 1164.
1225 Sanela Dedovi}, 29 Jan 2007, T. 1174, P109, p. 2.
1226 Sanela Dedovi}, 29 Jan 2007, T. 1164.
1227 Sanela Dedovi}, 29 Jan 2007, T. 1170, 1174, P109, p. 2; P118, Statement Sanela Dedovi}, 13 November 1995, p. 1;
D360, Expert report Ivan Stamenov, p. 19.
1228 Sanela Dedovi}, 29 Jan 2007, T. 1174; P118, Statement of Sanela Dedovi}, 13 November 1995, p. 1.
1229 P118, Statement of Sanela Dedovi}, 13 November 1995, p. 1.
1230 Sanela Dedovi}, 29 Jan 2007, T. 1174 – 1175; P118, Statement of Sanela Dedovi}, 13 November 1995, p. 1.
1231 P118, Statement Sanela Dedovi}, 13 November 1995, p. 1. See also, P117, Official note, p. 1.
1232 Sanela Dedovi}, 29 Jan 2007, T. 1170, P109, p. 2; P117, Official note, p. 1; P458, Medical report Sanela Dedovi},
p. 1 (under seal).
1233 P118, Statement of Sanela Dedovi}, 13 November 1995, p. 1.
1234 Sanela Dedovi}, 29 Jan 2007, T. 1170.
1235 P514, Expert report Patrick van der Weijden, p. 40.
1236 Sanela Dedovi}, P109, p. 2.
1237 Sanela Dedovi}, P110, p. 2; P118, Statement of Sanela Dedovi}, 13 November 1995, p. 1.
117
Case No IT-98-29/1-T 12 December 2007
349. Sanela Dedovi} testified that the bullet that hit her came from [picasta Stijena.1238
According to her, the confrontation line ran along the entire length of [picasta Stijena, with SRK
soldiers on the top of [picasta Stijena and ABiH soldiers at its foot.1239 She testified that it was
well-known that there was a SRK sniper’s nest on the ridgeline.1240 In her written statement, Sanela
Dedovi said that people knew Sedrenik was a dangerous place to live, as it was exposed to sniping
from [picasta Stijena, but that there was no other place to go.1241 A sign warned the residents:
“Caution: Sniper”.1242 In the opinion of Sanela Dedovi}, [picasta Stijena was the only Bosnian
Serb-held position from which it was possible to shoot at people crossing the intersection.1243 The
Trial Chamber recalls that the confrontation line ran at the foot of [picasta Stijena and that SRK
soldiers controlled the ridge.1244
350. In cross-examination, Sanela Dedovi} testified that she did not know whether there was
further shooting or not on the day she was injured, as she was in hospital at that stage.1245 However,
she stated that after 22 November 1994, the intersection was guarded by UNMOs with an APC
which was aimed in the direction of [picasta Stijena.1246
351. Lt. Van der Weijden visited the incident site on 29 November 2006, which, in weather and
seasonal conditions, more or less matched the time of year of the incident.1247 The trees were
leafless.1248 The ridgeline was approximately 850 to 1,100 metres from the incident site, but in clear
view.1249 In his view, it was only possible to have fired from the ridgeline or just below it, where the
SRK positions were.1250 Certain houses and the hillsides, which are now devoid of trees, would
have blocked the view from ABiH positions to the incident site at that time.1251
352. According to Lt. Van der Weijden, the sniper weapon used was most likely a M76 or M91
sniper rifle.1252 However, these weapons would have been at the limit of their capabilities at the
1238 Sanela Dedovi}, 29 Jan 2007, T. 1163; P112, Map marked by Sanela Dedovi}.
1239 Sanela Dedovi}, 29 Jan 2007, T. 1171, 1172.
1240 Sanela Dedovi}, 29 Jan 2007, T. 1164; P113, 360º photograph.
1241 Sanela Dedovi}, P110, p. 2.
1242 Sanela Dedovi}, 29 Jan 2007, T. 1164.
1243 Sanela Dedovi, P109, p. 2.
1244 See supra, para. 140.
1245 Sanela Dedovi}, 29 Jan 2007, T. 1176.
1246 Sanela Dedovi, P109, p. 2.
1247 P514, Expert report Patrick van der Weijden, p. 41.
1248 P514, Expert report Patrick van der Weijden, p. 41.
1249 P514, Expert report Patrick van der Weijden, p. 41; Ivan Stamenov, 22 Aug 2007, T. 9059 – 9060 (900 to 1,200
metres). Sanela Dedovi}, 29 Jan 2007, T. 1172 – 1173 estimated the distance between herself and the Bosnian Serb
forces as being three kilometres, but then stated it to be 200 – 300 metres, Sanela Dedovi}, 29 Jan 2007, T. 1173 –
1174.
1250 P514, Expert report Patrick van der Weijden, p. 41.
1251 P514, Expert report Patrick van der Weijden, p. 41.
1252 P514, Expert report Patrick van der Weijden, p. 40.
118
Case No IT-98-29/1-T 12 December 2007
distance from which Sanela Dedovi} was shot.1253 Lt. Van der Weijden stated that the weapon was
not a machinegun as the victim described hearing one shot only.1254 As a final possibility, Lt. Van
der Weijden stated that the weapon used may have been a hunting rifle, particularly because these
rifles were “omnipresent” before and during the war.1255
353. According to Lt. Van der Weijden, the clothes worn by Sanela Dedovi} would have enabled
the shooter to identify her as a civilian.1256 The range would have made it difficult to see the colours
of the clothing with the naked eye, but the colours would have been visible with optics mounted on
the rifle.1257 As the victim was 13 years old at the time and not of adult height, he concluded that
there was no reason to identify the victim as a combatant.1258
Findings
354. On the basis of the evidence of Sanela Dedovi and of Lt. Van der Weijden, the Trial
Chamber finds that Sanela Dedovi, a civilian, was shot and seriously wounded in the ankle by a
fragment of a bullet fired from a sniper weapon. There is no evidence indicating that the shot came
from ABiH-held territory. The shot originated from the ridge [picasta Stijena, which was controlled
by the SRK. In light of the fact that there is nothing in the evidence suggesting that the shot could
have been fired by anyone other than a member of the SRK, the Trial Chamber concludes that the
shots were fired by a member of the SRK.
b. Sniping of Dervi{a Selmanovi} on 10 December 1994
355. In the morning of 10 December 1994, there was constant sniper fire into Sedrenik from
Špicasta Stijena.1259 It was a dry, partly overcast day.1260 According to Derviša Selmanovi, there
were no military institutions or vehicles present in the vicinity of Sedrenik and there were no
soldiers in the area at the time.1261 No fighting was going on between the warring parties.1262
1253 P514, Expert report Patrick van der Weijden, p. 40.
1254 P514, Expert report Patrick van der Weijden, p. 40.
1255 P514, Expert report Patrick van der Weijden, p. 40.
1256 P514, Expert report Patrick van der Weijden, p. 43.
1257 P514, Expert report Patrick van der Weijden, p. 43.
1258 P514, Expert report Patrick van der Weijden, p. 43.
1259 P368, Official note, dated 12 March 1995, p. 1.
1260 Derviša Selmanovi, 5 Feb 2007, T. 1586, 1607, P170, p. 3.
1261 Derviša Selmanovi, 5 Feb 2007, T. 1586, P170, p. 3.
1262 Derviša Selmanovi, 5 Feb 2007, T. 1586; Nedžib Ðozo, 14 Mar 2007, T. 3703, P363, p. 2.
119
Case No IT-98-29/1-T 12 December 2007
356. At around 1100 hours, Derviša Selmanovi went out into a friend’s garden to get firewood,
which had been stacked between the house and a garage.1263 She suddenly felt a sharp pain in her
knee and a burning sensation in her leg.1264 A bullet had struck her knee on the inside of her leg and
had exited on the outside of the leg.1265 Derviša Selmanovi sought shelter behind the house.
Immediately afterwards, “another 20 to 30 bullets” were fired at the house.1266
357. Derviša Selmanovi’s neighbour helped her to call an ambulance.1267 Due to the constant
sniper fire from Špicasta Stijena, the ambulance could not come to where she was; instead she was
taken by an UNPROFOR patrol to the place where the ambulance was.1268 She was then taken to
the Koševo Hospital, where it was established that she had received a light wound and she was sent
home on the same day.1269 In 2006, Derviša Selmanovi stated that she still felt pain in her knee
when she stood or walked for a long time or when the weather changed.1270
358. The same day, Nedžib Ðozo, a BiH police officer, was notified that “there was shooting in
the area of Sedrenik from Špicasta Stijena and that a female had been wounded by sniper shot.”1271
According to Nedžib Ðozo, the investigation team that was set up was unable to visit the exact
location in Sedrenik where the victim was wounded because “single shots aiming at specific places
where people were milling or moving around” were constantly fired from Špicasta Stijena.1272 He
rejected the Defence suggestion that there was ongoing fighting and firing between the two sides or
that there were stray bullets coming from both sides without specifically targeting anyone.1273
359. According to Derviša Selmanovi and Nedžib Ðozo, the shooting came from the direction
of Špicasta Stijena.1274 This was confirmed by Lt. Van der Weijden.1275 When she was shot, Derviša
Selmanovi was approximately 900 to 1,050 metres from the Bosnian Serb positions on Špicasta
1263 Derviša Selmanovi, 5 Feb 2007, T. 1589 – 1590, P170, p. 3; Nedžib Ðozo, 14 Mar 2007, T. 3699; P367,
Investigation report, dated 14 December 1994, p. 1; P368, Official note, p. 1; P171, 360 photograph; P365, Map
marked by Nedžib Ðozo; P366, Photograph marked by Nedžib Ðozo.
1264 Derviša Selmanovi, P170, p. 3; P368, Official note, p. 1.
1265 Derviša Selmanovi, 5 Feb 2007, T. 1590, P169, p. 2; P171, 360 photograph; Nedžib Ðozo, 14 Mar 2007, T. 3691;
P463, Medical record (under seal).
1266 P368, Official note, p. 1.
1267 Derviša Selmanovi, P170, p. 3; P368, Official note, p. 1.
1268 Derviša Selmanovi, 5 Feb 2007, T. 1604, P170, p. 3; P368, Official note, p. 1.
1269 Derviša Selmanovi, P170, p. 3; P367, Investigation report, p. 1; Nedžib Ðozo, 14 Mar 2007, T. 3686, 3692; P368,
Official note, p. 1; P463, Medical record (under seal).
1270 Derviša Selmanovi, P169, p. 2; P368, Official note, p. 2.
1271 Nedžib Ðozo, 14 Mar 2007, T. 3685.
1272 Nedžib Ðozo, 14 Mar 2007, T. 3704. See also, P363, p. 2; P367, Investigation report, p. 1.
1273 Nedžib Ðozo, 14 Mar 2007, T. 3703.
1274 Derviša Selmanovi, 5 Feb 2007, T. 1592 – 1593, 1606, P169, p. 2; Nedžib Ðozo, 14 Mar 2007, T. 3685 – 3686;
P172, Videoclip of sniping incident; P365, Map marked by Nedžib Ðozo.
1275 P514, Expert report Patrick van der Weijden, pp 45 – 46.
120
Case No IT-98-29/1-T 12 December 2007
Stijena.1276 Col. Stamenov agreed that a sniper with the proper weapon would have no difficulty
hitting a target at ranges of between 900 and 1,200 metres.1277 However, he cited a witness
statement indicating that at the time of the incident it was foggy and the visibility was poor.1278
360. Derviša Selmanovi and Nedžib Ðozo testified that the shot that hit Derviša Selmanovi
could not have come from the ABiH positions which were blocked from sight.1279 Lt. Van der
Weijden noted in his report that the line of sight was blocked by a wooden shack and a tree trunk,
and that, during the conflict, trees on the hillsides obstructed the view of the Bosnian Muslim forces
even more.1280 According to Lt. Van der Weijden and Ned`ib \ozo, the only possible shooting
position from which the location of the incident could be seen was Špicasta Stijena.1281
361. On the basis of the evidence of Derviša Selmanovi that around 20 shots were fired, Lt. Van
der Weijden concluded that either a M53 or a M84 machinegun was used.1282 In his view, the
distance from which Derviša Selmanovi was shot made it difficult, but not impossible, to identify
her as a civilian.1283 However, the fact that Derviša Selmanovi was collecting firewood at the time
she was shot “should have been enough to identify her as a civilian”.1284 In addition, she was 49
years-old at the time, and, according to Lt. Van der Weijden, her movements would have been
slower than those of a younger person.1285 He believes there was no reason to identify Derviša
Selmanovi as a combatant.1286 Finally, he explained that if civilians were in the vicinity, a sniper
had to take every precaution to prevent firing at civilians and if the sniper could not identify a
person, he should have refrained from firing.1287
362. There was evidence about Derviša Selmanovi’s status as a civilian. Since 1994, Derviša
Selmanovi was employed as a cook assistant in the ABiH.1288 She explained that her place of work
1276 P514, Expert report Patrick van der Weijden, p. 45; Ivan Stamenov, 22 Aug 2007, T. 9060 (900 to 1,200 metres);
Cf. Derviša Selmanovi, P170, p. 3 (200 metres).
1277 Ivan Stamenov, 22 Aug 2007, T. 9060.
1278 Ivan Stamenov, 22 Aug 2007, T. 9030.
1279 Nedžib Ðozo, 14 Mar 2007, T. 3690, 3699, P363, p. 2; P366, Photograph marked by Nedžib Ðozo; D123,
Photograph marked by Nedžib Ðozo; P514, Expert report Patrick van der Weijden, p. 45. Nedžib Ðozo testified that
ABiH forces would not shoot at Sedrenik, as the ABiH units there were made up of residents of Sedrenik. Shooting at
Sedrenik would mean shooting at their relatives and their neighbours. In addition, the ABiH troops would have had to
turn their backs to the “Serbian forces.” Nedžib Ðozo, 14 Mar 2007, T. 3690. During cross-examination, Derviša
Selmanovi explained that the bullet must have come from [picasta Stijena because it was closer to Sedrenik, Derviša
Selmanovi, 5 Feb 2007, T. 1603, 1607; P171, 360 photograph.
1280 P514, Expert report Patrick van der Weijden, p. 45.
1281 P514, Expert report Patrick van der Weijden, pp 44 – 46; Nedžib Ðozo, P363, p. 2.
1282 P514, Expert report Patrick van der Weijden, p. 44; Ivan Stamenov, 22 Aug 2007, T. 9060.
1283 P514, Expert report Patrick van der Weijden, p. 47.
1284 P514, Expert report Patrick van der Weijden, p. 47.
1285 P514, Expert report Patrick van der Weijden, p. 47.
1286 P514, Expert report Patrick van der Weijden, p. 47.
1287 P514, Expert report Patrick van der Weijden, p. 47.
1288 Derviša Selmanovi, P170, p. 2.
121
Case No IT-98-29/1-T 12 December 2007
was located near the Koševo Hospital and that she walked to and from her work every day.1289 She
was given “some form of a uniform” as a cook assistant, but she had been advised by army officials
not to wear this uniform while coming to or returning home after work.1290 She explained in crossexamination
that she did not wear the uniform.1291 Hence, she was always dressed in civilian clothes
on her way to and from work.1292 She explained, in response to further Defence questions, that on
the way to and from her place of work, she did not often see people with weapons who did not wear
a uniform.1293 Derviša Selmanovi testified that, at the time of the incident, she was wearing
civilian clothing.1294 Ned`ib Ðozo testified that she was not “a member of the BH army”.1295
363. The Trial Chamber received conflicting evidence with regard to Derviša Selmanovi’s
injury. According to the police report, she was wounded in her left leg.1296 Ned`ib \ozo testified
that it was only when Derviša Selmanovic was interviewed in March 1995 that it was established
that she was in fact wounded in her right leg.1297 The Trial Chamber saw a video recorded by the
Prosecution, in which Derviša Selmanovi said that the shooting came from her right side and that
she was hit on the outside of her right leg.1298 However, during her testimony, she said that this was
wrong and that the shooting actually came from her left side and that the bullet entered on the inner
side of her right leg.1299 Derviša Selmanovi explained that she had been confused during the
recording of the video when using the right hand to show where the shooting came from.1300
Findings
364. On the basis of the evidence of Derviša Selmanovi and Nedžib Ðozo, the experts and
documentary evidence, the Trial Chamber finds that Derviša Selmanovi was shot with a
machinegun and seriously wounded in her leg when she was in the backyard of a house in Sedrenik,
and that the shots came from the SRK-controlled ridge [picasta Stijena. The Trial Chamber accepts
that Derviša Selmanovi was confused during the recording of the video, but it is satisfied that her
evidence that she was wounded in her right leg is correct. As regards the origin of fire, the Trial
Chamber takes into consideration the evidence as to the location of the SRK and ABiH troops and
1289 Derviša Selmanovi, P170, p. 2.
1290 Derviša Selmanovi, P170, p. 2.
1291 Derviša Selmanovi, 5 Feb 2007, T. 1603 – 1604.
1292 Derviša Selmanovi, P170, p. 2.
1293 Derviša Selmanovi, 5 Feb 2007, T. 1603 – 1604.
1294 Derviša Selmanovi, P170, p. 3.
1295 Nedžib Ðozo, 14 Mar 2007, T. 3703.
1296 P367, Investigation report, p. 1. See also, Nedžib Ðozo, 14 Mar 2007, T. 3691 – 3692.
1297 Nedžib Ðozo, 14 Mar 2007, T. 3691, 3694, P363, p. 2; P368, Official note, p. 1.
1298 P172, Videoclip of sniping incident.
1299 Derviša Selmanovi, 5 Feb 2007, T. 1590, 1592 – 1593.
1300 Derviša Selmanovi, 5 Feb 2007, T. 1592 – 1593, 1606. She explained that she was hit when she started to walk
with her right foot, Derviša Selmanovi, 5 Feb 2007, T. 1593.
122
Case No IT-98-29/1-T 12 December 2007
the evidence that the line of sight of ABiH troops toward Dervi{a Selmanovi} was blocked. The
latter evidence convinces the Trial Chamber that the shots did not come from ABiH-held territory
but from SRK-held [picasta Stijena. In light of the fact that there is nothing in the evidence
suggesting that the shot could have been fired by anyone other than a member of the SRK, the Trial
Chamber concludes that the shots were fired by a member of the SRK.
365. On the question of Derviša Selmanovi’s status as a civilian, the Defence, during its closing
arguments, argued that she was a member of the ABiH and that she had been told at work not to
wear a uniform because she would be safer if she was wearing civilian clothes.1301 The Trial
Chamber accepts her evidence that she was not wearing a uniform and that she was always dressed
in civilian clothing. This distinction in dress is clear and it would have been obvious to an SRK
shooter who had optical sights. Moreover, at the time of the shooting, Derviša Selmanovi was
gathering fire wood in a private garden and did not carry any weapon.
366. The status of a “civilian” is defined negatively in Article 50 of Additional Protocol I. The
Trial Chamber’s analysis of the definition of a civilian is carried out elsewhere in this Judgement
and is to be read in conjunction with this paragraph.1302 The Trial Chamber finds that Dervi{a
Selmanovi}, as an unarmed cook, would fall under Article 4A(4) of the Third Geneva Convention,
and thus is to be considered a civilian, according to Article 50 of Additional Protocol I.1303
c. Sniping of Tarik Žuni} on 6 March 1995
367. On 6 March 1995, Tarik Žuni, aged 14 years, was walking home from his school in the
Pofalii area to Sedrenik.1304 He was wearing jeans and a green jacket and was carrying a blue
rucksack.1305 It was a cloudy day, but there was no fog.1306 On the route to and from school, there
was no weaponry, and there were no trenches, military installations or barracks in the part of the
1301 Defence Closing Arguments, 10 October 2007, T. 9531 – 9532.
1302 See infra, paras 945 – 947.
1303 Article 4 A (4) of Geneva Convention III states:
“Persons who accompany the armed forces without actually being members thereof, such as civilian members of
military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for
the welfare of the armed forces, provided that they have received authorization, from the armed forces which they
accompany, who shall provide them for that purpose with an identity card similar to the annexed model.”
1304 Tarik Žuni, 7 Feb 2007, T. 1707 – 1708, 1730, P185, p. 2; P186, Map marked by Tarik Žuni.
1305 Tarik Žuni, 7 Feb 2007, T. 1724 – 1725, P184, p. 2.
1306 Tarik Zuni, P184, p. 2.
123
Case No IT-98-29/1-T 12 December 2007
town where he lived.1307 If there was shooting or shelling in the morning, Tarik Žuni usually did
not go to school. However, on the morning of 6 March 1995, there had been no shooting.1308
368. At around 1300 hours, Tarik Žuni was walking on Sedrenik Street about 100 metres from
his home.1309 He stated that, in the middle of Sedrenik Street, there was a sheet of canvas, fixed to
wooden sticks, to hide the people from the sight of the snipers at [picasta Stijena.1310 After passing
the canvas, Tarik Žuni heard two shots.1311 At that moment, he was close to a little shop; a fence
and a family house were on his right-hand side.1312 He was carrying the rucksack on his right
shoulder, holding it with his right hand.1313 Upon hearing the shots, Tarik Žuni} took shelter and did
not realise immediately that he had been hit.1314
369. Tarik Žuni testified that he was hit in his right hand by a single bullet.1315 The bullet
entered the palm of his hand and exited at the wrist.1316 He testified that, “I was lucky to have
walked not so fast; otherwise, I would have been dead.”1317 The Defence pointed out that the
medical record stated “entry wound in distal part of right underarm from the radial side, and exit
point in the thenar area”, but Tarik Žuni maintained that he was shot in his hand.1318 This was
confirmed in the police report on the incident that was tendered by the Defence.1319 Tarik Žuni
recalled that the bullet went through his jacket from left to right, before hitting his hand.1320
370. Lying under cover for 30 minutes, during which time the sniping continued, he waited for
help to arrive.1321 He testified that, “I could hear the bullets and the shots being fired.”1322 He heard
both single shots and bursts of fire and he immediately recognised that the shots were fired from the
M84 machinegun as the sound is distinct from the sound of ordinary guns.1323 In cross-examination,
1307 Tarik Žuni, 7 Feb 2007, T. 1746 – 1747, P185, p. 2; P186, Map marked by Tarik Žuni.
1308 Tarik Zuni, P184, p. 2. The Defence tendered daily combat reports dated 5 and 7 March 1995. These reports show
that it was a quiet period in the area of responsibility of the 101st Motorized Brigade of the ABiH, D482, Daily combat
report, dated 5 March 1995; D483, Daily combat report, dated 7 March 1995.
1309 Tarik Žuni, 7 Feb 2007, T. 1708, 1718, 1719, 1748 – 1749, P184, p. 2; P187, Photograph marked by Tarik Žuni;
P188, Photograph marked by Tarik Žuni; P191, Photograph marked by Tarik Žuni; P193, Photograph marked by
Tarik Žuni.
1310 Tarik Žuni, P184, p. 2.
1311 Tarik Žuni, P184, p. 2.
1312 Tarik Žuni, 7 Feb 2007, T. 1719, 1751; P190, 360 photograph; P191, Photograph marked by Tarik Žuni; P192,
Photograph marked by Tarik Žuni; P193, Photograph marked by Tarik Žuni; D43, Official note, dated 10 and 11
March 1995 (“Official note”), p. 1.
1313 Tarik Žuni, 7 Feb 2007, T. 1725.
1314 Tarik Žuni, P184, p. 2.
1315 Tarik Žuni, 7 Feb 2007, T. 1725, 1734, 1741, P184, p. 2. See also, D43, Official note, p. 1.
1316 Tarik Žuni, 7 Feb 2007, T. 1725, 1741.
1317 Tarik Žuni, 7 Feb 2007, T. 1725.
1318 Tarik Žuni, 7 Feb 2007, T. 1737 – 1738; P189, Medical record, dated 10 November 1995.
1319 D43, Official note, pp 2 – 3.
1320 Tarik Žuni, 7 Feb 2007, T. 1725, 1741, P184, p. 2; P189, Medical record.
1321 Tarik Žuni, 7 Feb 2007, T. 1727, P185, p. 2.
1322 Tarik Žuni, 7 Feb 2007, T. 1727.
1323 Tarik Žuni, 7 Feb 2007, T. 1740, P184, p. 2.
124
Case No IT-98-29/1-T 12 December 2007
he testified that he had never seen a M84 machinegun, but that he learned to distinguish the sound
because he had heard many shots, and as he put it, “I lived there. I survived. … I listened to
people older than me all the time.”1324
371. Tarik Žuni said a civilian vehicle stopped, but the ongoing shooting prevented the driver
from helping him; he believed the vehicle may have been shot.1325 He also said that some people
tried to help him and that one man was hit.1326 Soon after, a UN APC stopped and transported him
to the Koševo Hospital.1327 Only after the APC had picked him up, did the shooting stop.1328 After
his wound had been dressed at the hospital, he was sent home.1329 In 1995, he stated that he
sometimes suffered pain when the weather changed.1330
372. The official note of the BiH police on the incident stated that due to firing from “the
aggressor’s positions” at the place where Tarik Žuni was wounded, an on-site investigation could
not be conducted.1331 It also reported that Tarik Žuni was wounded by a bullet fired from
“aggressor’s positions at Špicasta Stijena.”1332
373. Similarly, Tarik Žuni testified that the shots came from the direction of Špicasta Stijena.1333
He also testified that the confrontation line and the Bosnian Serb positions at Špicasta Stijena were
visible from the place where he was shot, but that the Bosnian Muslim positions were not, as they
were at the foot of the hill.1334 He explained that the SRK was on the top of Špicasta Stijena and on
a higher ground than the ABiH positions and that the ABiH positions were closer than the Bosnian
Serb positions.1335 In that regard, the Trial Chamber recalls the location of the confrontation line at
the foot of [picasta Stijena.1336 Tarik Žuni explained that he was sure the shots were fired from
Špicasta Stijena because of the entry and exit points of his wound and because snipers fired from
[picasta Stijena all the time.1337 Tarik Žuni stated that many civilians had been hit by snipers in
this area, especially in Sedrenik Street.1338 During cross-examination, he confirmed that it was
1324 Tarik Žuni, 7 Feb 2007, T. 1740, P185, p. 2.
1325 Tarik Zuni, P184, p. 2, P185, p. 2.
1326 Tarik Žuni, 7 Feb 2007, T. 1745, P185, p. 2.
1327 Tarik Zuni, P184, p. 2.
1328 Tarik Žuni, 7 Feb 2007, T. 1746.
1329 Tarik Zuni, P184, p. 2; D43, Official note, p. 3.
1330 Tarik Zuni, P184, p. 2.
1331 D43, Official note, p. 1.
1332 Ibid.
1333 Tarik Žuni, 7 Feb 2007, T. 1722, 1725, 1753, P184, p. 2; P188, Photograph marked by Tarik Žuni; P190, 360
photograph; P200, Photograph marked by Tarik Žuni.
1334 Tarik Žuni, 7 Feb 2007, T. 1708, 1722 – 1723.
1335 Tarik Žuni, 7 Feb 2007, T. 1723, 1726 – 1727, 1742.
1336 See supra, para 140.
1337 Tarik Žuni, 7 Feb 2007, T. 1738 – 1739, 1753 – 1754, P184, p. 2; P192, Photograph marked by Tarik Žuni.
1338 Tarik Zuni, P184, p. 2.
125
Case No IT-98-29/1-T 12 December 2007
possible to fire at targets in the street from Trebevi, “an area held by the Serbs”, but not with
small-calibre weapons.1339
374. Lt. Van der Weijden, who visited the incident site, stated that there was a clear view of the
incident site from the ridgeline.1340 He stated in his report that the road where the victim was
walking had a wall measuring one metre high at the side facing Špicasta Stijena.1341 He also stated
that the street was partly shielded from view of Špicasta Stijena by screens.1342 The fence at which
Tarik Žuni was shot had several bullet holes; this strengthened Lt. Van der Weijden’s opinion that
shooting came from the direction of Špicasta Stijena.1343
375. Tarik Žuni estimated that the distance to the confrontation lines was 700 to 900 metres.1344
He explained that he knew where the confrontation lines were because he later walked up to the line
previously held by the SRK.1345 Lt. Van der Weijden confirmed in his report that the distance from
the ridgeline to the incident site was approximately 650 to 900 metres.1346 Col. Stamenov agreed
that a sniper with the proper equipment would have no difficulty hitting a target at ranges of
between 900 and 1,200 metres.1347
376. Lt. Van der Weijden stated in his report that it was likely that the M84 machinegun had been
used during this incident since it was a “burst at a longer range”.1348 Other possible weapons were
M87 or M53 machineguns. However, he added that if the M87 had been used, the victim most
likely would have had no hand left because of the power of the ammunition.1349 He confirmed that
it is possible for people to tell the difference between the rate of fire of a M53 and a M84, especially
after living in war-like conditions for a long time.1350
377. Evidence was led as to whether Tarik Žuni could have been identified as a combatant.
Tarik Žuni testified that there were no houses or other obstacles between him and the frontline, nor
were there ABiH positions in the vicinity of his home.1351 Tarik Žuni sometimes heard ABiH
troops moving past his house and to the confrontation lines. However, he testified that that
1339 Tarik Žuni, 7 Feb 2007, T. 1739, P184, p. 2.
1340 P514, Expert report Patrick van der Weijden, p. 49.
1341 P514, Expert report Patrick van der Weijden, p. 49.
1342 P514, Expert report Patrick van der Weijden, p. 49.
1343 P514, Expert report Patrick van der Weijden, p. 49.
1344 Tarik Žuni, 7 Feb 2007, T. 1709, 1713, P184, p. 2.
1345 Tarik Žuni, 7 Feb 2007, T. 1714, 1723 – 1724, 1744.
1346 P514, Expert report Patrick van der Weijden, p. 49.
1347 Ivan Stamenov, 22 Aug 2007, T. 9060.
1348 P514, Expert report Patrick van der Weijden, p. 48.
1349 P514, Expert report Patrick van der Weijden, p. 48.
1350 P514, Expert report Patrick van der Weijden, p. 48.
1351 Tarik Žuni, 7 Feb 2007, T. 1712; P187, Photograph marked by Tarik Žuni
126
Case No IT-98-29/1-T 12 December 2007
happened during night time so that civilians were not put at risk.1352 During cross-examination,
Tarik Žuni explained that he was too young to be involved in the army.1353 Lt. Van der Weijden
stated in his report that a boy of 14 years of age can, if he reached adult height, sometimes be
mistaken for an adult.1354 He concluded that since the street was partly shielded, and there was some
growth preventing the victim from being viewed from Špicasta Stijena, and, since the boy was
moving, the shooter could not have seen the victim completely.1355 This would have made it
“impossible” to determine if the victim was a combatant or not.1356 However, according to Lt. Van
der Weijden, the village and the area were inhabited by civilians at that time. As the Bosnian Serbs
had a good view of the village from their positions at Špicasta Stijena, they would have had ample
opportunity to observe the village and its inhabitants, and thereby identify the majority of the
inhabitants as non-combatants.1357 Lt. Van der Weijden concluded that there was no reason to
identify the boy as a combatant.1358
Findings
378. There is no evidence indicating that the shot that wounded Tarik Žuni came from ABiHheld
territory. The Trial Chamber is satisfied that Tarik Žuni, a civilian, was shot and seriously
wounded by a machine gun from SRK-held positions at [picasta Stijena when he was walking on
Sedrenik Street and appeared from behind a sheet of canvas. On the basis of the evidence of Lt. Van
der Weijden and evidence as to the clothes worn by Tarik @uni} on that day, the Trial Chamber is
satisfied that there was no reason for the sniper to mistake him for a combatant.
(iii) Sniping of Targets Elsewhere in Sarajevo
379. Three scheduled sniping incidents took place in Vojniko Polje, Gazin Han and Dobrinja.
The Defence submitted in its Final Brief that Vojniko Polje was a “military zone full of military
targets” and that Dobrinja was a “military zone with constant military activity”.1359 T-60 testified
that there was firing from artillery weapons and light machine guns from behind the high-rise
buildings in Alipašino Polje, which was ABiH-held territory, and that there was shooting from
Vojniko Polje with light weapons; the SRK would respond to these attacks with artillery and gun
1352 Tarik Žuni, 7 Feb 2007, T. 1712, 1747.
1353 Tarik Žuni, 7 Feb 2007, T. 1741, 1746, 1750.
1354 P514, Expert report Patrick van der Weijden, p. 49.
1355 P514, Expert report Patrick van der Weijden, p. 49.
1356 P514, Expert report Patrick van der Weijden, p. 49.
1357 P514, Expert report Patrick van der Weijden, p. 49.
1358 P514, Expert report Patrick van der Weijden, p. 49.
1359 Defence Final Brief, paras 181 and 186.
127
Case No IT-98-29/1-T 12 December 2007
fire.1360 The Trial Chamber recalls its previous findings regarding the confrontation lines in
Vojniko Polje and in Dobrinja.1361 It finds that Vojniko Polje and Dobrinja were civilian areas.1362
The Trial Chamber’s analysis of the status of Sedrenik is set out elsewhere in the Judgement and is
to be read in conjunction with this paragraph.1363
a. Sniping of Adnan Kasapovi} on 24 October 1994
380. W-62 testified that in the early morning of 24 October 1994, Adnan Kasapovi and two of
his friends, all fourteen years of age, went to the so-called Vemeks department store in Vojniko
Polje.1364 It was Adnan Kasapovi}’s fourteenth birthday.1365 Adnan Kasapovi was dressed in a
black or grey tracksuit, the other two were wearing a blue tracksuit and jeans and a black T-shirt,
respectively.1366 There was no military activity in the area that day, nor were ABiH soldiers in the
area.1367
381. Just outside and to one side of the Vemeks department store there was a passageway running
through the building.1368 The passageway was to the right of Adnan Kasapovi} and his friends as
they walked towards the department store.1369 The passageway was about 10 metres long, and
became about half a metre narrower in the middle, although a car could pass through the
passageway.1370 The ceiling of the passageway was about three to three and a half metres high.1371
This location was known to be very dangerous because of sniping through the passageway.1372
382. About 50 metres from the passageway, there was an ABiH dormitory, also described as
“some kind of an ABiH army command post” or “the staff”.1373 The dormitory was a privatelyowned
flat where ABiH soldiers were billeted during the war.1374 Soldiers could be seen there at
times, both in uniform and plain clothes.1375 The passageway was not used by the soldiers.1376
1360 T-60, 25 July 2007, T. 8818 – 8821.
1361 See supra, paras 119 - 120 and infra, para. 902.
1362 See supra, paras 119 - 120 and infra, para. 903.
1363 See infra, para. 901.
1364 W-62, 23 Jan 2007, T. 880, 882 – 885. See also, Ermin Kre~o, P646, pp 5, 8.
1365 W-62, 23 Jan 2007, T. 888 – 889.
1366 W-62, 23 Jan 2007, T. 889; P514, Expert report Patrick van der Weijden, p. 13.
1367 W-62, 23 Jan 2007, T. 889, 890, 24 Jan 2007, T. 924.
1368 W-62, 23 Jan 2007, T. 885; P99, 360 photograph; P100, Photograph marked by W-62; Ermin Kre~o, P646, pp 5, 8.
1369 W-62, 23 Jan 2007, T. 902, 909; P100, Photograph marked by W-62; Ivan Stamenov, 22 Aug 2007, T. 9045 –
1946.
1370 W-62, 23 Jan 2007, T. 907, 908; Patrick van der Weijden, 29 Mar 2007, T. 4299; T-52, 28 June 2007, T. 7433; C10,
Photograph taken during site visit, p. 1.
1371 W-62, 23 Jan 2007, T. 906.
1372 W-62, 23 Jan 2007, T. 890, 24 Jan 2007, T. 924.
1373 W-62, 24 Jan 2007, T. 924; Ermin Kre~o, P646, pp 5, 8.
1374 W-62, 23 Jan 2007, T. 889, 917, 24 Jan 2007, T. 922 – 923; Ermin Kre~o, P646, p. 8.
1375 W-62, 24 Jan 2007, T. 922 – 923.
128
Case No IT-98-29/1-T 12 December 2007
383. W-62 and Ermin Kre~o gave evidence that there was a low wall running adjacent to and out
from the department store.1377 It joined the side of the passageway closest to the department
store.1378 Ermin Kre~o stepped onto the wall, and Adnan Kasapovi was just about to do the same,
when W-62 and Ermin Kre~o heard a shot.1379 W-62 grabbed hold of Adnan Kasapovi and only
then realised that Adnan Kasapovi had been shot.1380 W-62 started to pull Adnan Kasapovi
towards the department store.1381 They called out to people in the dormitory.1382 While W-62 was
pulling Adnan Kasapovi} toward the department store he heard another shot.1383 Some soldiers
came with a bandage and a stretcher to help them.1384
384. The bullet had entered from the front right shoulder of Adnan Kasapovi’s body, passed to
the left of his lungs and exited near his back left shoulder.1385 The soldiers placed the bandage on
Adnan Kasapovi and put him in a civilian vehicle, but Adnan Kasapovi died on the way to the
Dobrinja Hospital.1386
385. On the other side of the department store building and visible through the passageway was
the School of the Blind.1387 The School consisted of two larger buildings with two smaller ones
between them.1388 It had three floors and was 20 to 25 metres high.1389 Witnesses gave different
estimates of the distance to the School of the Blind from the passageway, ranging from 150 metres
to 300 metres.1390 According to W-62, the shot that killed Adnan Kasapovi came from the School
of the Blind, through the passageway.1391 He testified that he knew that shooting had come from the
School of the Blind because there were holes between the third floor and the roof.1392 Defence
witness T-52 testified that the whole facade of the School of the Blind was damaged by bullet holes,
1376 W-62, 23 Jan 2007, T. 889, 24 Jan 2007, T. 924.
1377 W-62, 23 Jan 2007, T. 885; Ermin Kre~o, P646, p. 5. See also, P941, Videoclip of sniping incident (under seal);
C10, Photograph taken during site visit, p. 1.
1378 P941, Videoclip of sniping incident (under seal); C10, Photograph taken during site visit, p. 1.
1379 W-62, 23 Jan 2007, T. 885; Ermin Kre~o, P646, pp 5, 8; P941, Videoclip of sniping incident (under seal).
1380 W-62, 23 Jan 2007, T. 886.
1381 W-62, 23 Jan 2007, T. 886; Ermin Kre~o, P646, pp 5, 8.
1382 Ermin Kre~o, P646, p. 8.
1383 W-62, 23 Jan 2007, T. 886.
1384 W-62, 23 Jan 2007, T. 886, 918, 920; Ermin Kre~o, P646, p. 5.
1385 W-62, 23 Jan 2007, T. 886 – 887; T. 909; Ermin Kre~o, P646, pp 5, 8; P514 Expert report Patrick van der Weijden,
p. 11.
1386 W-62, 23 Jan 2007, T. 887 – 888; Ermin Kre~o, P646, pp 5, 8 – 9.
1387 W-62, 23 Jan 2007, T. 892, 899 – 900; T-48, 22 June 2007, T. 7147 – 7148; P941, Videoclip of sniping incident
(under seal); D278, Map marked by T-52; D279, Photograph marked by T-52; P783, Map marked by T-48.
1388 W-62, 23 Jan 2007, T. 892 – 894; T-48, 22 June 2007, T. 7147 – 7148; T-41, 18 July 2007, T. 8562; P99, 360°
photograph; P100, Photograph marked by W-62.
1389 W-62, 23 Jan 2007, T. 900; T-52, 28 June 2007, T. 7429; Patrick van der Weijden, 29 Mar 2007, T. 4301, 4306.
1390 W-62, 24 Jan 2007, T. 924 (150 metres); P514 Expert report Patrick van der Weijden, p. 13 (250 – 300 metres);
Patrick van der Weijden, 29 Mar 2007, T. 4297, 4301; Ivan Stamenov, 22 Aug 2007, T. 9059 (250-300 metres); T-52,
28 June 2007, T. 7434 – 7435 (200-300 metres).
1391 W-62, 23 Jan 2007, T. 894, 902; P99, 360 photograph; P100, Photograph marked by W-62; P941, Videoclip of
sniping incident (under seal).
1392 W-62, 23 Jan 2007, T. 899 – 900, 912 – 913, 914 – 915; P909, Photograph of the School of the Blind.
129
Case No IT-98-29/1-T 12 December 2007
but he could not recall any bigger holes.1393 The Trial Chamber recalls that the School of the Blind
was held by the SRK and was known as a sniper location.1394
386. There was conflicting evidence about whether the line of sight could have been obstructed.
According to W-62, on that day nothing obstructed the view from the School of the Blind to the
place where Adnan Kasapovi was shot.1395 Garages under the control of the ABiH were located
between the School of the Blind and the passageway, but those were not high enough to obstruct the
view.1396 When shown a photograph taken during the Trial Chamber’s on-site visit, Defence
witnesses T-48 and T-52 confirmed that there was a line of sight from the School of the Blind into
the passageway.1397 However, T-48 denied that there was a direct line of sight from the School of
the Blind to the passageway at the time of the incident because both warring parties had set up
screens and barricades to make it possible for the people to move safely.1398 T-52 confirmed that, in
general, screens were present from the beginning of the conflict in 1992 until the end of the war,
thus obstructing the view between the School of the Blind and the passageway.1399 T-52 could not
remember if there were any screens at that location on 24 October 1994.1400
387. After Adnan Kasapovi died, the residents put a blanket at the passageway as protection
against shooting.1401 However, after only a few days the blanket was “torn in ribbons” as a result of
shooting.1402
388. T-52 further testified that the SRK positions in the School of the Blind during the conflict
were on the ground floor where the soldiers slept and held position.1403 During attacks, the soldiers
opened fire from trenches in that position.1404 T-52 testified that the soldiers would only go up to
the first floor to observe the enemy positions, but almost never to the second floor because they
could be seen from the outside.1405 T-52 denied that the SRK would use the second floor for
shooting.1406 He testified that soldiers who were on duty in the School of the Blind had infantry
1393 T-52, 28 June 2007, T. 7430, 7488 – 7489. See also, T-41, 19 July 2007, T. 8600 – 8601, P909, Photograph of the
School of the Blind.
1394 See supra, para. 233.
1395 W-62, 23 Jan 2007, T. 893, 24 Jan 2007, T. 925.
1396 W-62, 23 Jan 2007, T. 899; T-48, 22 June 2007, T. 7164, T-52, 28 June 2007, T. 7432; P100, Photograph marked
by W-62; D24, Photograph marked by W-62; D279, Photograph marked by T-52.
1397 T-48, 22 June 2007, T. 7184; T-52, 28 June 2007, T. 7433 – 7434, 7462; C10, Photographs taken during site visit,
pp 1 – 2.
1398 T-48, 22 June 2007, T. 7165 – 7167; P100, Photograph marked by W-62.
1399 T-52, 28 June 2007, T. 7432, 7434 – 7435, 7441 – 7442, 7460, 7464; D279, Photograph marked by T-52.
1400 T-52, 28 June 2007, T. 7462 – 7463.
1401 W-62, 23 Jan 2007, T. 890, 892.
1402 W-62, 23 Jan 2007, T. 890. See also, T-52, 28 June 2007, T. 7487, 7490.
1403 T-52, 28 June 2007, T. 7429.
1404 T-52, 28 June 2007, T. 7429, 7447 – 7448.
1405 T-52, 28 June 2007, T. 7448 – 7449, 7450 – 7451, 7453 – 7456, 7489.
1406 T-52, 28 June 2007, T. 7455.
130
Case No IT-98-29/1-T 12 December 2007
weapons and hand-grenades and that there was an order from the brigade command not to shoot at
civilians.1407 T-60 testified that people did not want to go to the area between the School of the
Blind and the high buildings in Vojniko Polje, because of fear of “provocative actions” from the
ABiH.1408
389. In his report and during his testimony, Lt. Van der Weijden expressed the opinion that the
only possible points of origin of fire were within the complex of the School of the Blind.1409 The
passageway acted as a funnel that pointed back to the general location of the shooter and the
darkness of the passageway highlighted the location of the victim.1410 If one looked through the
passageway from the place where Adnan Kasapovi} was shot, the location of the shooter would be
visible.1411 When Col. Stamenov was shown a photograph taken during the site visit, he confirmed
this.1412 However, he testified that the victim could have been shot from any building situated in
that direction or from a different direction.1413 Moreover, Col. Stamenov testified that the visibility
was poor on 24 October 1994, based on a NATO weather report for Sarajevo that the weather was a
bit foggy in the morning.1414 According to W-62, however, the weather was nice on 24 October
1994.1415 The Defence, in its Final Brief, submitted that a shooter, “on this misty morning” could
have reasonably taken the boys for combatants.1416
390. Lt. Van der Weijden testified that Adnan Kasapovi} was killed by a shot from a M76 or
M91 rifle.1417 According to Lt. Van der Weijden, it would have been possible, from the range at
which Adnan Kasapovi was shot, to determine if he was carrying weapons or if he was a
combatant.1418 Finally, Lt. Van der Weijden concluded that the shot was not fired either from the
South, North or East, because, in his view, had it been fired from those directions, the boys would
have been able to escape through the passageway.1419 In this respect, the Trial Chamber notes that
the boys were walking towards the South and would have remained visible to any sniper shooting at
them from the South, North or East when taking shelter at the department store.1420 However,
1407 T-52, 28 June 2007, T. 7465, 7470.
1408 T-60, 25 July 2007, T. 8819 – 8820; D352, Photograph marked by T-60 (under seal).
1409 Patrick van der Weijden, 29 Mar 2007, T. 4296, 4302, 4304 – 4306; P514, Expert report Patrick van der Weijden,
pp 11 – 12.
1410 Patrick van der Weijden, 29 Mar 2007, T. 4305; P514, Expert report Patrick van der Weijden, pp 12 – 13.
1411 Patrick van der Weijden, 29 Mar 2007, T. 4305 – 4306.
1412 Ivan Stamenov, 22 Aug 2007, T. 9044; C10, Photographs taken during site visit, p. 1.
1413 Ivan Stamenov, 22 Aug 2007, T. 9049 – 9050; C10, Photographs taken during site visit, p. 1.
1414 Ivan Stamenov, 22 Aug 2007, T. 9030; D362, NATO weather report for Sarajevo, p. 3.
1415 W-62, 23 Jan 2007, T. 889 – 890.
1416 Defence Final Brief, para. 181.
1417 P514, Expert report Patrick van der Weijden, p. 11 (7,62x54R ammunition).
1418 P514, Expert report Patrick van der Weijden, p. 13.
1419 Patrick van der Weijden, 29 Mar 2007, T. 4304 – 4305.
1420 Patrick van der Weijden, 29 Mar 2007, T. 4304 – 4305.
131
Case No IT-98-29/1-T 12 December 2007
neither W-62 nor Ermin Kre~o gave evidence of being shot at while taking shelter at the department
store after having passed the passageway.
391. The Defence questioned Lt. Van der Weijden about how a shooter could see a target from
the School of the Blind, considering the difference in elevation between the School and the
passageway. Lt. Van der Weijden explained that the bullet’s trajectory is such that over longer
distances between the point of origin and the target, the bullet travels above the line of sight of the
shooter and only meets up with the target at a certain distance.1421 Col. Stamenov confirmed this.1422
The further away the target, the bigger the curve, but the line is almost straight for the first 500
metres.1423 Col. Stamenov testified that a M76 rifle was a “very successful” sniper rifle for distances
up to 500 metres.1424 Over a distance of approximately 300 metres, a bullet, when at its highest
point above the line of vision, travels at approximately 20 centimetres above that line.1425 Lt. Van
der Weijden concluded that from 300 to 320 metres distance at a height of 20 metres, there is no
difficulty in seeing the target and being able to shoot at it without the bullet striking the roof of the
passageway.1426
392. Further, the Defence expert witness Col. Stamenov emphasised that no information about
the entry and exit wound of the victim, or the angle at which the projectile or a fragment entered the
victim’s chest was available, although this information was crucial when determining the origin of
fire.1427 However, during cross-examination, he confirmed that the trajectory of a bullet in a body
can change and that it may be difficult in those cases to establish the direction of fire based on that
information.1428
Findings
393. On the basis of the evidence of eyewitnesses W-62 and Ermin Kre~o, the Trial Chamber is
satisfied that on 24 October 1994, Adnan Kasapovi}, a 14-year-old boy and a civilian, was shot and
killed when walking by a passageway in Vojniko Polje.1429 There is no evidence suggesting that
the shot originated from ABiH-held territory. The evidence from eyewitnesses and the Prosecution
1421 Patrick van der Weijden, 29 Mar 2007, T. 4297; P516, Sketch by Patrick van der Weijden.
1422 Ivan Stamenov, 22 Aug 2007, T. 9039; D363, Drawing made by Ivan Stamenov.
1423 Ivan Stamenov, 22 Aug 2007, T. 9039, 9040; D363, Drawing made by Ivan Stamenov.
1424 Ivan Stamenov, 22 Aug 2007, T. 9040 – 9041.
1425 Patrick van der Weijden, 29 Mar 2007, T. 4297, 4299; Ivan Stamenov, 22 Aug 2007, T. 9040; D363, Drawing made
by Ivan Stamenov.
1426 Patrick van der Weijden, 29 Mar 2007, T. 4297 – 4299, 4300, 4301, 4305 – 4306; P516, Sketch by Patrick van der
Weijden.
1427 Ivan Stamenov, 22 Aug 2007, T. 9035 – 9038, 9048, 9049, 9050; D360, Expert report Ivan Stamenov, p. 19.
1428 Ivan Stamenov, 22 Aug 2007, T. 9070 – 9071, 9084.
1429 The Trial Chamber notes that the Indictment specifies the location as “alley adjoining Ðore Andrijevia Kuna
Street”.
132
Case No IT-98-29/1-T 12 December 2007
expert Lt. Van der Weijden shows that the shots came from the School of the Blind, a known sniper
location of the SRK. In light of the fact that there is nothing in the evidence suggesting that the shot
could have been fired by anyone other than a member of the SRK, the Trial Chamber concludes that
the shots were fired by a member of the SRK.
394. With regard to the issue of presence of screens that would have obstructed the view of the
shooter from the School of the Blind, the Trial Chamber takes into account the testimony of three
witnesses. First, T-48 said that there was no direct line of sight at the time the incident because of
the presence of screens. Second, T-48’s evidence was confirmed by T-52. However, T-52 could not
say whether there were any screens on the particular day of the incident. He testified to the presence
of screens generally as a protective measure until the end of the war. Third, W-62 said that on that
day, nothing obstructed the view from the School of the Blind to the place of shooting and that the
blankets were hung up in the passageway only after the incident as a protective measure. It is
important to note that neither T-48 nor T-52 was present at the location when the incident took
place. The Trial Chamber accepts the evidence of W-62, who was an eyewitness to the incident,
and, therefore, finds that nothing obstructed the view from the School of the Blind.
395. Based on the evidence of W-62 and Lt. Van der Weijden, the Trial Chamber is also satisfied
that there was a direct line of sight from the School of the Blind to the passageway. Significantly,
when Defence expert witness Col. Stamenov was shown the photograph of the passageway, he
confirmed that there was a direct line of sight from the School of the Blind to the passageway. The
Trial Chamber also notes that T-52, who was positioned in the School of the Blind, did not deny
that the SRK soldiers at times went to upper floors of the School of the Blind. It is not convinced by
his testimony that they never shot from that position. The Trial Chamber finds that the sniper in the
School of the Blind, particularly with the benefit of telescopic sights and from the upper floors of
the School of the Blind, had a clear view of Adnan Kasapovi}.
396. Col. Stamenov raised two other points: first, he was shown a NATO weather report for that
particular day which stated that it was foggy and overcast, and he concluded that the visibility was
poor on that day. On the other hand, W-62 testified that it was a nice day. The Trial Chamber is
convinced that there was sufficient visibility in the early morning of that day for a shooter with
telescopic sight to see Adnan Kasapovi}. This finding is buttressed by the NATO weather report
tendered into evidence by the Defence which shows that in the early morning hours, the visibility
was between 900 to 2,000 metres compared to the distance between the School of the Blind and
Adnan Kasapovi, which was established to be approximately 300 to 320 metres and, therefore,
well within the optical range of the shooter.
133
Case No IT-98-29/1-T 12 December 2007
397. Second, Col. Stamenov argued that the lack of any medical report as to the entry and exit
wound was crucial for the determination of origin of the fire. However, the Trial Chamber notes
that in cross-examination, he confirmed that the trajectory of a bullet in a body can change and that
it may be difficult in those cases to establish the direction of fire with the help of that information.
The Trial Chamber, therefore, attaches no weight to that argument.
b. Sniping of Fata Guta on 8 November 1994
398. In the morning of 8 November 1994, Fata Guta and W-50 left the house of W-50 in Gazin
Han, Stari Grad municipality, in the eastern part of Sarajevo, to fetch some water from the
Mošanica spring.1430 W-50 and Fata Guta were dressed in “civilian clothing”.1431 W-50 carried
jerry cans with a rope over her shoulders.1432
399. They walked down a pathway from the house towards the main road.1433 About three to five
metres before they had reached the main road, Fata Guta was hit by a bullet in her left hand.1434 W-
50 heard Fata Guta crying that she had been hit as she fell to the ground.1435 There were two shots at
the time Fata Guta was wounded.1436 W-50 testified that there were no military targets or any
military activity in the neighbourhood where Fata Guta was shot.1437 W-50 testified that the
pathway she and Fata Guta were walking on was in a civilian area but known to be dangerous
because of sniping.1438
400. Fata Guta was bleeding profusely and W-50 helped her to move behind a holiday cottage
where she administered first aid.1439 Since the sniping continued, they stayed behind the cottage for
about 20 minutes.1440 After that W-50 took Fata Guta to the nearest doctor in Gazin Han to get
medical care.1441 On their way to and from the doctor, W-50 could hear the sound of gunshots from
the direction of Zeija Glava, which is located in the East.1442 W-50 and Fata Guta had to take a
1430 W-50, 28 Feb 2007, T. 2867 – 2868 (redacted), 2888 (redacted), 2900 (redacted); D90, Map of Sarajevo marked by
W-50 (under seal).
1431 P514, Expert report Patrick van der Weijden, p. 53.
1432 W-50, 28 Feb 2007, T. 2868, P514, Expert report Patrick van der Weijden, p. 53.
1433 W-50, 28 Feb 2007, T. 2871 – 2872; P290, p. 2 (under seal); P292, Photograph marked by W-50.
1434 W-50, 28 Feb 2007, T. 2868, 2870, 2871 – 2872, 2891 – 2893, P290, p. 2 (under seal); P291, Videoclip of W-50
(under seal); P293, Photograph marked by W-50; P294, Criminal investigation file, dated 8 November 1994, p. 4; P455,
Medical record Fata Guta (under seal); P514, Expert report Patrick van der Weijden, p. 51; D89, Photograph marked by
W-50.
1435 W-50, P290, p. 2 (under seal); P514, Expert report Patrick van der Weijden, p. 51.
1436 W-50, 28 Feb 2007, T. 2869.
1437 W-50, 28 Feb 2007, T. 2869, P290, p. 2 (under seal).
1438 W-50, P290, p. 2 (under seal).
1439 W-50, 28 Feb 2007, T. 2868, 2872 – 2873, P290, p. 2 (under seal); P293, Photograph marked by W-50.
1440 W-50, 28 Feb 2007, T. 2873, P290, p. 2 (under seal).
1441 W-50, 28 Feb 2007, T. 2873, P290, p. 2 (under seal); P514, Expert report Patrick van der Weijden, p. 51.
1442 W-50, 28 Feb 2007, T. 2875, 2888; D90, Map of Sarajevo marked by W-50 (under seal).
134
Case No IT-98-29/1-T 12 December 2007
different route on their return from the doctor.1443 They passed by what W-50 called an ABiH
“headquarters”, but there were no soldiers.1444 The ABiH “headquarters” was located close to the
Bosnian Serb positions, by the roadside, not far from the place where Fata Guta was wounded.1445
According to W-50, the headquarters was staffed by civilians, some of whom were protecting the
neighbourhood from the Bosnian Serbs, but there were no weapons at that location.1446
401. Later that same day Fata Guta received further treatment for her injuries at the Koševo
Hospital.1447 Fata Guta went to an outpatient’s clinic daily for ten days to dress the wound.1448
402. According to W-50, Fata Guta was hit by a shot that came from the direction of Zeija
Glava, which was a Bosnian Serb-held position.1449 W-50 was sure the shots came from the
direction of Zeija Glava because she clearly heard the whistling sound of the bullet from that
location.1450 She was also certain that the shots were directed at Fata Guta and herself.1451 It seemed
that the sniper was intent on killing them because more shots tracked their movements behind cover
and there was no one else around.1452
403. Lt. Van der Weijden concluded that the weapon used was either a M76 or M91 semiautomatic
sniper rifle.1453 This rifle would have enabled the shooter to rapidly fire consecutive
shots, which would not have been possible with a bolt-action rifle.1454 Lt. Van der Weijden
explained that Zeija Glava is located at least 1,200 metres away from the incident site and that
such a distance is beyond the shooting range of M76 or M91 sniper rifles.1455 Shots against moving
targets using such kind of weapons are extremely difficult at a range of 1,200 metres.1456 W-50 and
Fata Guta were moving when they were shot at, indicating that the shooter was able to follow them
visually.1457 Considering the available optics for M76 or M91 sniper rifles, the shooter would not
have been able to follow the targets from the location of Zeija Glava.1458 Even if the shooter had
1443 W-50, 28 Feb 2007, T. 2887, 2901.
1444 W-50, 28 Feb 2007, T. 2886 – 2887. The Trial Chamber notes that Enes Jašarevi testified that the word
“headquarters” is used not exclusively used for “military headquarters”, but can also denote a regular work place, Enes
Jašarevi, 1 Mar 2007, T. 3023.
1445 W-50, 28 Feb 2007, T. 2887 – 2888.
1446 W-50, 28 Feb 2007, T. 2888.
1447 P294, Criminal investigation file, pp 3, 4; P455, Medical record Fata Guta (under seal).
1448 W-50, 28 Feb 2007, T. 2901, P290, p. 2 (under seal); P455, Medical record Fata Guta (under seal).
1449 W-50, 28 Feb 2007, T. 2866 – 2867, 2868, 2873, 2882 – 2883, 2884 – 2885, P290, p. 2 (under seal); P293,
Photograph marked by W-50; P294, Criminal investigation file, pp 1, 3-4.
1450 W-50, 28 Feb 2007, T. 2875.
1451 W-50, 28 Feb 2007, T. 2869.
1452 P514, Expert report Patrick van der Weijden, p. 51.
1453 P514, Expert report Patrick van der Weijden, p. 51.
1454 P514, Expert report Patrick van der Weijden, p. 51.
1455 P514, Expert report Patrick van der Weijden, p. 51.
1456 P514, Expert report Patrick van der Weijden, p. 51.
1457 P514, Expert report Patrick van der Weijden, p. 51.
1458 P514, Expert report Patrick van der Weijden, p. 51.
135
Case No IT-98-29/1-T 12 December 2007
access to better optics, the flight time of the bullet would have prevented the shooter from reacting
to the movements of the targets.1459 According to Lt. Van der Weijden, the shooter who fired at W-
50 and Fata Guta must have been in a different position, but in the same line as that of Zeija
Glava.1460
404. South-east of the incident site was a Bosnian Muslim position, which, however, did not offer
a good view of the site.1461 According to Lt. Van der Weijden, the shots were, therefore, not fired
from that location.1462 Between Zeija Glava and the location of the incident, there was an
abandoned area, a so-called “no man’s land”.1463 According to Lt. Van der Weijden, this area could
have been easily infiltrated from Zeija Glava.1464 He believed that snipers had indeed infiltrated the
no man’s land and taken up positions in one of the abandoned houses, which were located 300 to
475 metres away from the incident site.1465 He explained that, when a sniper fired from a room in a
house, the room would muffle the sound and it would be very difficult to pinpoint the location due
to the echoes of the shots between the walls of the surrounding houses.1466
405. Lt. Van der Weijden stated that since the incident took place in the morning, a shooter
facing towards the West, had the sun in his back and W-50 and Fata Guta had the sun in their
faces.1467 This, together with the optics on the rifle, gave the shooter an optimal opportunity to
identify the targets.1468
Findings
406. The Trial Chamber finds that Fata Guta was shot and seriously wounded in her hand while
she was on her way to fetch water from the Mošanica spring in Gazin Han. Although W-50
testified that the shots came from Zeija Glava, the evidence adduced by expert witness Lt. Van der
Weijden indicates that Zeija Glava could not have been the shooter's position because of the
insufficient range of the weapons, and that the shots must have come from the abandoned area
closer to the incident site. The Trial Chamber notes that the evidence does not clearly indicate who
had access to and could have infiltrated the abandoned area. The Trial Chamber, therefore, finds
1459 P514, Expert report Patrick van der Weijden, p. 51.
1460 P514, Expert report Patrick van der Weijden, p. 51. See also, D360, Expert report Ivan Stamenov, p. 19.
1461 P514, Expert report Patrick van der Weijden, pp 52-53.
1462 P514, Expert report Patrick van der Weijden, pp 52-53.
1463 P514, Expert report Patrick van der Weijden, pp 52-53.
1464 P514, Expert report Patrick van der Weijden, pp 52-53.
1465 P514, Expert report Patrick van der Weijden, p. 53.
1466 P514, Expert report Patrick van der Weijden, p. 53.
1467 P514, Expert report Patrick van der Weijden, p. 53.
1468 P514, Expert report Patrick van der Weijden, pp 53 – 54.
136
Case No IT-98-29/1-T 12 December 2007
that the evidence presented is insufficient to conclude that it was an SRK sniper who shot at Fata
Guta from a position in the abandoned area.
c. Sniping of [emsa ^ovrk on 3 May 1995
407. The third of May 1995 was a sunny and warm day.1469 In the area of Dobrinja, there was
usually a lot of military activity.1470 However, it was peaceful on that day and a cease-fire was in
place.1471
408. The ground floors of the apartment buildings in Dobrinja C5, which is located close to
Sarajevo Airport, were often shot at, owing to the proximity of the area to the confrontation line.1472
For this reason, residents normally used the cellar to enter the buildings.1473 Every building had its
own entrance to a cellar, located at the backside.1474 [emsa ^ovrk, a woman aged 27 years old, was
walking towards the main entrance of building number 4, on Josipa Kra{a Street, holding the hand
of her five-year-old son.1475
409. [emsa ^ovrk was close to the entrance when a guard, who was a civilian, called her
loudly.1476 She stopped and turned towards the direction of the houses at the confrontation line.1477
At this moment, [emsa ^ovrk was hit by a bullet on the right side of her abdomen and fell to the
ground.1478 She was moved by a neighbour and another man to a house about five or six metres
across the street from the building.1479 Shortly afterwards, she was transferred to the Dobrinja
Hospital where she underwent surgery and stayed for seven days.1480
410. Lt. Van der Weijden concluded that the shooting position was 200 to 300 metres from the
place where [emsa ^ovrk was hit, in the direction of the airport on SRK-held territory.1481 W-32
said that the shots came from an area that was between some houses, and originated from the
1469 W-32, 4 Apr 2007, T. 4485.
1470 W-32, 4 Apr 2007, T. 4502 – 4503.
1471 W-32, 4 Apr 2007, T. 4485, 4502.
1472 W-32, 4 Apr 2007, T. 4484, P528, p. 1 (under seal); P104, Street map of Sarajevo.
1473 W-32, 4 Apr 2007, T. 4484 – 4486, 4500.
1474 W-32, 4 Apr 2007, T. 4485 – 4486.
1475 W-32, 4 Apr 2007, T. 4486, P528, p. 1 (under seal), P529, p. 2 (under seal).
1476 W-32, 4 Apr 2007, T. 4494, 4498, 4500, P528, p. 1 (under seal). The Defence tried to ascertain in crossexamination
the exact position of [emsa ^ovrk when she was hit. According to the testimony of W-32, [emsa ^ovrk
passed a garage at her left in order to reach the hallway of the house, W-32, 4 Apr 2007, T. 4494 – 4495.
1477 W-32, 4 Apr 2007, T. 4486 – 4487, 4494, 4499, 4501, P529, p. 2 (under seal); P530, Videoclip of sniping incidents
(under seal).
1478 W-32, 4 Apr 2007, T. 4487, 4494, P528, p. 1 (under seal), P529, p. 2 (under seal); P530, Videoclip of sniping
incidents (under seal).
1479 W-32, P528, p. 1 (under seal), P529, p. 2 (under seal).
1480 P471, Medical report, p. 2 (under seal); W-32, P528, p. 1 (under seal).
1481 P514, Expert report Patrick Patrick van der Weijden, p. 14. W-32 estimated the distance as approximately 100
metres, W-32, 4 Apr 2007, T. 4493; P530, Videoclip of sniping incidents (under seal).
137
Case No IT-98-29/1-T 12 December 2007
houses near the airport.1482 These houses were also in the direction of the confrontation line.1483 In
response to a question by the Defence, W-32 said that the shot came “probably from the front
line.”1484 In her view, the shots did not come from the airport because one could not see the airport
directly from the place where [emsa ^ovrk was hit.1485 Rather, the shots came from the airport
settlements.1486 W-32 did not know who was firing in this area or where the shots into Dobrinja C5
generally came from.1487 According to W-32, the territory where the buildings of the airport
settlement were located was controlled by “the aggressor”.1488
411. Lt. Van der Weijden did not regard the airport as a possible origin of fire, because between
the buildings of Dobrinja C5 and the airport there are open fields with shrubs, blocking the view
from a low or ground position.1489 Furthermore, the airport was under the control of UNPROFOR
which was patrolling the area with very strict rules of engagement towards combatants.1490 Instead,
he found that the houses to the West of the place where [emsa ^ovrk was hit were suitable
positions for sniping, giving a shooter the height and the means to shoot from a concealed
position.1491 Lt. Van der Weijden concluded that the shooter was at a long range because of the
difference in time between the sound of the shot and the impact.1492 He also explained that, from a
distance of 200 to 300 metres, a person with a five-year-old child could easily have been identified
as civilian, even with the naked eye.1493
412. In cross-examination, the Defence suggested that there were several streets and rows of
buildings between the confrontation line and the place where [emsa ^ovrk was shot.1494 W-32
responded that there was only one other building between Josipa Kra{a Street, number 4, and the
confrontation line.1495 On a map tendered by the Defence, the confrontation line as of September
1995 is depicted as running through the middle of the airport settlement.1496 Thus the houses
marked in Lt. Van der Weijden’s report as possible sniping positions would not have been located
in territory controlled by the SRK.1497 However, another map, tendered by the Prosecution,
1482 W-32, 4 Apr 2007, T. 4493; P530, Videoclip of sniping incidents (under seal).
1483 W-32, 4 Apr 2007, T. 4495, 4501 – 4502, 4503.
1484 W-32, 4 Apr 2007, T. 4503.
1485 W-32, 4 Apr 2007, T. 4501 – 4502.
1486 W-32, P528, p. 1 (under seal).
1487 W-32, 4 Apr 2007, T. 4503.
1488 W-32, 4 Apr 2007, T. 4492, P528, p. 1 (under seal). See also, Azra [i{i}, 27 Feb 2007, T. 2851 – 2852; P288, Map
marked by Azra [i{i}.
1489 P514, Expert report Patrick van der Weijden, p. 15.
1490 P514, Expert report Patrick van der Weijden, p. 15.
1491 P514, Expert report Patrick van der Weijden, p. 15.
1492 P514, Expert report Patrick van der Weijden, p. 14.
1493 P514, Expert report Patrick van der Weijden, p. 16.
1494 W-32, 4 Apr 2007, T. 4501.
1495 W-32, 4 Apr 2007, T. 4501.
1496 D164, Map of Dobrinja marked by W-32; P328, Map marked by Ismet Had`i}; Ismet Had`i}, 5 Mar 2007, T. 3201.
1497 D164, Map of Dobrinja marked by W-32; P514, Expert report Patrick van der Weijden, p. 16.
138
Case No IT-98-29/1-T 12 December 2007
indicates that the confrontation line was just behind the first buildings on the eastern side of the
airport settlement, so that some of the possible sniper positions were indeed in SRK-controlled
territory.1498 Further, the confrontation line, as drawn by Ismet Ha|`i}, ran through a building.1499
There is no indication that this part of the confrontation line differed between 1994 and 1995. Ismet
Ha|`i}, the Commander of 1st Dobrinja Brigade/155th Mountain Brigade, explained that from the
beginning until the end of the war the separation line remained unchanged.1500 The confrontation
line ran along the road through the settlement of Dobrinja 5, the river, and the village towards the
airport settlement.1501 Ismet Ha|ži further testified that the separation line between ABiH and VRS
forces was only a road “five wide”.1502 According to him, there were Bosnian Muslim forces in one
part of the settlement and across the road in other buildings, there were Bosnian Serb forces.1503
413. Based on the information that the victim was hit with a single shot and that the closest
buildings from where the shot could have been fired was at least 200 metres, Lt. Van der Weijden
believed that it was unlikely that a machine gun was used to shoot [emsa ^ovrk.1504 He concluded
that the shot was most likely fired with a M76 or M91 sniper rifle.1505
Findings
414. The Trial Chamber finds that [emsa ^ovrk, a civilian, was shot and seriously wounded
while she was walking on Josipa Kra{a Street in Dobrinja C5. However, it is not in a position to
conclude that the victim was shot from a sniping position located in SRK-controlled territory. The
evidence as to the exact location of the confrontation line in the airport settlement is very
conflicting and inconclusive. A map tendered by the Defence shows that the confrontation line ran
through the middle of the airport settlement, with the result that the house marked in Lt. Van der
Weijden’s report as possible sniping position would not be located in SRK-controlled territory. On
another map, tendered by the Prosecution, the confrontation line is shown as running behind the
first building of the eastern side of the airport settlement, thereby possibly placing the sniping
position in areas controlled by the SRK. The Trial Chamber also notes that one of the buildings
from which [emsa ^ovrk could have been shot was shared by the two armies. In light of all the
1498 P330, Map marked by Ismet Had`i}. See also, D360, Expert report Ivan Stamenov, p. 31.
1499 P330, Map marked by Ismet Had`i}.
1500 Ismet Had`i}, 5 Mar 2007, T. 3198.
1501 Ismet Had`i}, 6 Mar 2007, T. 3204 – 3205; Enes Ja{arevi}, 1 Mar 2007, T. 3020 – 3021.
1502 Ismet Had`i}, 6 Mar 2007, T. 3213.
1503 Ismet Had`i}, 6 Mar 2007, T. 3213. See also, W-28, 22 Feb 2007, T. 2762; W-46, 15 Mar 2007, T. 3835 (closed
session), P387, p. 28 (under seal).
1504 P514, Expert report Patrick van der Weijden, p. 14.
1505 P514, Expert report Patrick van der Weijden, p. 14.
139
Case No IT-98-29/1-T 12 December 2007
evidence, the Trial Chamber is not satisfied that the victim was shot from a position on the territory
controlled by SRK.
5. Shelling during the Indictment Period
415. David Harland estimated that during the course of the war about half a million shells were
fired at Sarajevo: “Sometimes we were able to determine very exactly where they came from and
sometimes we weren’t. In nearly a hundred per cent of the cases, that is, with the exception of two
or three, when we could confirm, we confirmed that they came from the Serb side.”1506 He also
stated that during the period of 1993 to 1995, roughly 1,000 shells per day landed on Sarajevo, with
a lull in 1994 due to the cease-fire of that year.1507
416. The Trial Chamber recalls its finding that the SRK had modified air bombs and launched
them from the ground.1508 There is also evidence that air bombs, phosphorous bombs and other
improvised weapons were used by the SRK.1509 Nedzib \o`o explained that the “Serb forces”
located on the slopes of Mount Trebevi} filled natural gas containers with explosives, put rubber
tires around the containers and rolled them down the slope from Osmice.1510 An UNPROFOR
report noted that in the evening of 27 August 1995, “the BSA rolled a barrel full of fuel and
explosive material from the Sharpstone Hill to explode at the bottom, they did so two times,
although it did not cause casualties, it caused a lot of fear among the people there.”1511
(a) Shelling by the SRK
417. Evidence was led that the civilian population in the city of Sarajevo was regularly the target
of shelling by the SRK,1512 including heavy shelling with modified air bombs in the city of
Sarajevo, and other parts of the front.1513 The Trial Chamber heard that the location of Sarajevo in a
valley and the positions of the SRK on the hills around Sarajevo meant that the SRK could shell
1506 David Harland, P2, MT. 28668 – 28669.
1507 David Harland, P1, MT. 26937. See also, W-137, 20 Feb 2007, T. 2559; W-12, 2 Mar 2007, T. 3073.
1508 See supra, para 107.
1509 See also, Milomir [oja, 25 Apr 2007, T. 5121 – 5126; Martin Bell, 26 Apr 2007, T. 5240 – 5241, 5263 – 5264;
Stevan Veljovi, 29 May 2007, T. 5801; Ljuban Mrkovi, 13 July 2007, T. 8223 – 8224.
1510 Ned`ib \ozo, 14 Mar 2007, T. 3711 – 3713. See also, supra, Section II.B.2.(b)(ii) Modified Air Bombs.
1511 P21, UNPROFOR sitrep, dated 28 August 1995, p. 5.
1512 Cornelis Hendrik Nicolai, 24 Jan 2007, T. 962 – 963; Ghulam Muhammad Mohatarem, 19 Jan 2007, T. 703;
Thorbjorn Overgard, 18 Jan 2007, T. 639, 651 – 652; W-12, 2 Mar 2007, T. 3074 – 3075; Ismet Had`i}, 6 Mar 2007, T.
3211; Rijalda Musaefendi}, 28 Feb 2007, T. 2936; Huso Palo, P 162, p. 2; Tarik Zuni, P185, p.3; W-57, P538, p. 2
(under seal); Ronald Eimers, P584, pp 2, 4, P585, pp 4, 5, 6, 7; P10, UNPROFOR weekly sitrep, 10 December 1994, pp
5 - 6; P19, UNPROFOR sitrep, 2 July 1995, p. 2; P343, Protest letter from Rupert Smith to Gen. Mladi}, dated 26 June
1995. See also P777, 1st Ilid`a Infantry Brigade command daily report, dated 21 June 1995, p. 2; T-2, 20 June 2007, T.
6959).
1513 See, e.g., P586, Expert report of Berko Zeevi}, p. 75; Berko Zeevi}, 20 Apr 2007, T. 4918 – 4919; W-137, 19 Feb
2007, T. 2471; Ekrem Suljevi}, P310, p. 2.
140
Case No IT-98-29/1-T 12 December 2007
Sarajevo without restriction.1514 As described by Martin Bell, the “burden of the bombardment fell
on the civilians trapped in the city.”1515
418. Maj. Eimers noted that the Bosnian Serb Liaison Officers usually acknowledged that the
firing had come from their side but “if we thought it was a civilian target they would often call it a
military target.”1516 Similarly, Brig. Mohatarem testified that when UNPROFOR confronted the
“Serb commanders” with information about sniping or shelling, they would accept that they had
been firing at their military counterparts, but they would not accept that they had been shooting at
civilians.1517 In Brig. Mohatarem’s view, “they didn’t care about it, actually.”1518 Lt. Col. Konings
explained that, in his view, there were very few military targets inside the city of Sarajevo, and that
in most incidents of shelling he investigated, there were no military targets involved.1519
419. Maj. Veljovi}, who testified for the Defence, rejected the proposition that the SRK
intentionally targeted the civilian population and areas inside the confrontation lines by shelling,
maintaining that “there was never any order issued to fire any heavy weaponry on Ba{~ar{ija,
engi} Vila, or any part of the town, except on the separation line and military positions. Mortars
were used to target military positions, but there was a strict ban referring to all other parts.”1520 He
further explained that “there was no mistake-free firing”; a projectile might miss a target by 50 to
100 metres and fall “into a built-up inhabited area of town” if, for example, the sufficient charge
was not used, the gunpowder was damp or a soldier who was “upset, psychologically” forgot to
measure the right angle.1521
420. A number of witnesses expressed the view that the shelling was carried out in an
indiscriminate manner.1522 David Harland explained that in 1993 and 1994, but probably more in
the latter half of 1994, the shelling was not concentrated against military targets. Instead, shells
were dropped apparently randomly across densely-populated civilian areas in a way that would
cause a small number of casualties in a large number of places.1523 Lt. Col. Konings testified that
1514 W-116, 18 Apr 2007, T. 4687. See also, P617, Videoclip of interview with Radovan Karadži}.
1515 Martin Bell, 27 Apr 2007, T. 5279. See also, John Jordan, P267, p. 6.
1516 Ronald Eimers, P585, p. 4, 20 Apr 2007, T. 4786. See supra, Section II.B.1(a) VRS and SRK.
1517 Ghulam Muhammad Mohatarem, 19 Jan 2007, T. 709 – 710.
1518 Ghulam Muhammad Mohatarem, 19 Jan 2007, T. 709 – 710.
1519 Harry Konings, 12 Mar 2007, T. 3560.
1520 Stevan Veljovi}, 29 May 2007, T. 5754, 5806. See also, Simo Tuševljak, 11 July 2007, T. 8085, 12 July 2007, T.
8109, 8112; Ljuban Mrkovi}, 12 July 2007, T. 8158.
1521 Stevan Veljovi}, 30 May 2007, T. 5854 – 5855, 5856.
1522 Ismet Had`i}, 6 Mar 2007, T. 3211, 3236; W-12, 2 Mar 2007, T. 3074 – 3075; Thomas Knustad, 13 Feb 2007, T.
1993; W-137, 20 Feb 2007, T. 2553; Tarik Žuni}, P185, p. 3; W-156, P625, p. 11 (under seal); John Jordan, P267, p. 6.
See also, P619, Videoclip of shelling in Sarajevo.
1523 David Harland, 15 Jan 2007, T. 330 – 331; David Harland, P1, MT. 26951. See also, John Jordan, P267, p. 7.
141
Case No IT-98-29/1-T 12 December 2007
one of the consequences of using mortars as “harassing fire”, as it was used in Sarajevo, is the
infliction of a lot of harm, especially against civilians.1524
421. Milan Mandilovi} recalled that on 16, 17, and 18 June 1995, the start of an ABiH offensive,
Sarajevo was intensively shelled: “Terrible detonations were heard in town; a large number of
shells landed in the town.”1525 The “attempt to lift the blockade” and the Markale Market II incident
that took place on 28 August 1995 were “firmly etched” in Milan Mandilovi}’s mind “because they
marked the onset of terrible, complete destruction.”1526
422. UNPROFOR reports recorded numerous incidents of shelling of Bosnian Muslim-held areas
of Sarajevo, many of which resulted in causalities.1527 In approximately half of the shelling
investigations Bogdan Vidovi} attended, from August 1994 until November 1995, there were
civilian casualties.1528
423. Witnesses described civilian areas that were regularly targeted by shelling. Such areas
included parks, cemeteries, market places and places where people collected water.1529 Azra [i{i}
recalled that it was “a risky business” to leave one’s apartment building to collect food from 100 to
200 metres away because of the shelling.1530
424. Sanjin Hasanefendi} testified that the entire Novo Sarajevo municipality was exposed to
artillery fire, but added that the residential areas of Heroes’ Square, Pofali}i and Vele{i}i were the
most exposed.1531 Nefa [ljivo stated that there was shelling in Hrasnica and W-82 stated that there
was a lot of shelling in Sokolovi}i.1532 Evidence also indicates that civilian buildings were regularly
shelled and that shells regularly landed very near to peoples’ houses.1533 A number of witnesses
testified about the shelling of their homes and surrounding areas from [picasta Stijena and other
Bosnian Serb-held areas.1534 W-12 said that there was nothing which could be done about the
1524 Harry Konings, 12 Mar 2007, T. 3560.
1525 Milan Mandilovi}, 18 Jan 2007, T. 617 – 618. See also supra, paras 784 - 785.
1526 Milan Mandilovi}, 17 Jan 2007, T. 570 – 571.
1527 See infra, Section IIE.7.b Physical Impact. For an example, see P12, UNPROFOR daily sitrep, dated 14 April 1995,
p. 2; Ned`ib \ozo, 14 Mar 2007, T. 3705 – 3706.
1528 Bogdan Vidovi}, 13 Feb 2007, T. 2066 – 2067.
1529 David Harland, 15 Jan 2007, T. 345; Thomas Knustad, 13 Feb 2007, T. 1993; P16, UNPROFOR sitrep, 24 June
1995, p. 3; P19, UNPROFOR sitrep, 2 July 1995, p. 3.
1530 Azra [i{i}, 27 Feb 2007, T. 2830. See also, Rialda Musaefendi}, P295, p. 4.
1531 Sanjin Hasanefendi}, 16 Feb 2007, T. 2303, 2391; P232, Photograph marked by Sanjin Hasanefendi}. See also,
Predrag Carki, 19 June 2007, T. 6870 – 6871; D70, Photograph marked by Sanjin Hasanefendi}; P850, UNMO sitrep,
9 July 1995, pp 2, 11.
1532 Nefa [ljivo, P531, p. 2, P532, p. 2; W-82, P228, p. 2 (under seal).
1533 Harry Konings, 13 Mar 2007, T. 3603; W-57, P538, p. 2 (under seal); Nefa [ljivo, P531, p. 2, P532, p. 2;
UNPROFOR protest letter, 2 December 1994, p. 3.
1534 Bogdan Vidovi}, 13 Feb 2007, T. 2062; Harry Konings, 13 Mar 2007, T. 3603; Kemal Bu}o, 2 Feb 2007, T. 1510;
Sanela Dedovi, P110, p.2; W-12, P307, p. 2 (under seal); Tarik Žuni}, P185, pp 2 – 3.
142
Case No IT-98-29/1-T 12 December 2007
shelling except putting sandbags against the windows of the house and covering the windows with
blankets.1535
425. As was the case before the Indictment period, the hospitals within the confrontation lines
were shelled and sniped.1536 The Trial Chamber heard evidence that during the Indictment period,
the State Hospital was hit about a dozen times and shells landed in its compound.1537 The southern
part of the hospital, facing the frontline, was affected much more than other parts.1538 Witnesses
stated that the fire came from the Jewish Cemetery, Grbavica, Mount Trebevi} and Vraca.1539 Milan
Mandilovi} stated that all the floors in the hospital were affected by the destructive impact of
artillery weapons and that there was not a single window of the hospital that was not broken.1540
426. According to witnesses, there were no military facilities in the immediate vicinity of the
State Hospital in 1994 and 1995.1541 Milan Mandilovi}, a doctor at the State Hospital, testified that,
during the Indictment period, he never saw the ABiH firing mortars from the grounds of the
hospital nor did he see ABiH tanks or heavy weaponry in or around the hospital complex.1542 He
noted that the hospital’s location between two streets would have required weapons with a
manoeuvrability that such weapons did not have.1543 Maj. Gen. Karaveli} noted that his command
post was 200 to 300 metres from the hospital, and testified that he immediately dispatched police to
investigate reports of firing from the State Hospital and the Ko{evo Hospital and that they “never
found anything” to indicate the presence of mobile mortars near the hospitals.1544 However, T-60
stated that on a weekly basis from mid-1994 until November 1995, he saw a cannon perhaps 20
metres away from the gate of the hospital and within the perimeter of the hospital, being fired
mostly on the neighbourhood of Vraca.1545 According to T-60, the Bosnian Serbs responded to this
only when heavy artillery was fired upon their positions.1546
427. The Ko{evo Hospital and the area around it were also shelled.1547 Maj. Gen. Nicolai testified
that the Ko{evo Hospital was shelled by the SRK on 16 May 1995.1548 He stated that the
1535 W-12, P307, p. 2 (under seal).
1536 See supra, Section II.C.a. Sniping and Shelling of Areas within the Confrontation Lines.
1537 Bakir Naka{, 25 Jan 2007, T. 1071.
1538 Milan Mandilovi}, 17 Jan 2007, T. 563 – 564, 18 Jan 2007, 604; P47, Photograph of State Hospital.
1539 Milan Mandilovi}, 17 Jan 2007, T. 564; Bakir Naka{, 25 Jan 2007, T. 1070 – 1071, 29 Jan 2007, T. 1143. See also
supra, Section II.B.3 Areas of Responsibility and Confrontation Lines - SRK and 1st Corps of the ABiH.
1540 Milan Mandilovi}, 17 Jan 2007, T. 563 – 564, 584; P47, Photograph of State Hospital.
1541 Bakir Naka{, 25 Jan 2007, T. 1068 – 1069, 29 Jan 2007, T. 1121 – 1122; Milan Mandilovic, 17 Jan 2007, T. 562.
1542 Milan Mandilovi}, 17 Jan 2007, T. 562.
1543 Milan Mandilovi}, 17 Jan 2007, T. 562.
1544 Vahid Karaveli, P494, GT. 12030.
1545 T-60, 25 July 2007, T. 8796, 8799 – 8801, 8846 – 8850, 8853 – 8857; P916, Map marked by T-60 (under seal).
1546 T-60, 25 July 2007, T. 8796, 8799 – 8800.
1547 Thomas Knustad, 13 Feb 2007, T. 1993; Cornelis Hendrik Nicolai, 24 Jan 2007, T. 992 – 995; T-61, 9 July 2007, T.
7870 – 7873; Fadila Serdarevi}, P641, p. 6.
1548 Cornelis Hendrik Nicolai, 24 Jan 2007, T. 992.
143
Case No IT-98-29/1-T 12 December 2007
headquarters of a unit of the ABiH was situated near the Zetra Stadium, which was about one
kilometre away from the Koševo Hospital.1549 Maj. Gen. Karaveli stated that it could not be
confirmed that the 1st Corps had fired from its grounds.1550 However, there is evidence of ABiH
firing from the area around the hospital. An UNMO report dated 17 June 1995 recorded that while
the Ko{evo Hospital was hit, “outgoing rounds” had been observed in the area.1551 T-61, a Bosnian
Serb doctor who worked at the Ko{evo Hospital until January 1994, testified that throughout the
whole war, soldiers were present in the area around the hospital.1552 However, Maj. Gen. Nicolai
testified that the SRK’s aim would have had to be “awfully inaccurate” to miss the ABiH
headquarters by one kilometre and instead hit the hospital.1553
428. The evidence of witness T-60 pertaining to the presence of a cannon in the vicinity of the
State Hospital is not supported by other evidence. Bakir Naka{, the Director of the State Hospital,
did not confirm that the ABiH was present inside the compound of the State Hospital, or in its
immediate vicinity.1554 This was confirmed by Milan Mandilovi}, but he was not asked in crossexamination
about the presence of ABiH in and around the hospital. The evidence pertaining to
Ko{evo Hospital does not show that the ABiH was located in the compound of the hospital itself.
There is no evidence that the civilian status of the hospitals changed during the Indictment period.
In light of all the evidence relating to this matter, including that of the skill of the mortar crews, the
Trial Chamber is satisfied that both hospitals were intentionally targeted by the SRK. As a matter of
international humanitarian law, hospitals are not legitimate military targets.
429. The “Blue Routes”, which were established in early 1994, were land routes over which basic
necessities, such as food and medical supplies, could be brought into Sarajevo and which allowed
civilians to move between different areas.1555 One of the Blue Routes, referred to by some witnesses
as the “convoy road”, ran over Mount Igman into Hrasnica. Witnesses testified that the ABiH
controlled the convoy road and that it was used by the ABiH, civilians and humanitarian aid
workers.1556 However, Lt. Col. Louis Fortin only saw UNHCR and Bosnian Muslim humanitarian
aid convoys on the convoy road and he never saw any ABiH military convoys or any ABiH arms
being transported there.1557 According to other witnesses, it was not possible to be sure whether at a
1549 Cornelis Hendrik Nicolai, 24 Jan 2007, T. 992 – 995. See also, P391, UNPROFOR report, 17 November 1994, p. 2.
1550 Vahid Karaveli, P494, GT. 11884.
1551 P891, UNMO daily sitrep, dated 17 June 1995, pp 13-14.
1552 T-61, 9 July 2007, T. 7832 – 7833, 7855-7856, 7860.
1553 Cornelis Hendrik Nicolai, 24 Jan 2007, T. 992 – 995.
1554 Bakir Naka{, 25 Jan 2007, T. 1068 – 1069, 29 Jan 2007, T. 1121 – 1122.
1555 David Harland, 16 Jan 2007, T. 461, P2, MT. 28638; Ismet Had`i}, 6 Mar 2007, T. 3237; Milan Mandilovi}, 17 Jan
2007, T. 569.
1556 David Fraser, 8 Feb 2007, T. 1842; Thorbjorn Overgard, 19 Jan 2007, T. 687; Hussain Ijaz, 27 Apr 2007, T. 5405;
Ronald Eimers, P585, p. 7. See also supra, para. 125, regarding Mount Igman.
1557 Louis Fortin, 17 Jan 2007, T. 547. See also, Ronald Eimers, 20 Apr 2007, T. 4812–4813.
144
Case No IT-98-29/1-T 12 December 2007
particular time the road was being used by civilians or the ABiH. Maj. Eimers stated that the same
vehicle was sometimes used for both military and civilian purposes, and the road was most
frequently used when it was dark.1558
430. There is evidence that no distinction was made as to who was on the convoy road; the UN,
civilians, military personnel, humanitarian aid convoys and NGO personnel were all fired at by the
SRK.1559 Col. Hussain Ijaz, a Pakistani UNMO, testified that if there was a vehicle moving on the
convoy road, “rest assured that it will be fired upon” from Ilid`a.1560 In the view of David Harland,
the SRK would shoot at convoys to try and stop them at times of greater political tension.1561 Gen.
Smith stated that he expected the Bosnian Serbs to try and close the convoy road as part of their
strategy to “maintain the siege as tightly as they could”, as this was one of the only routes by which
supplies could be brought into Sarajevo.1562 During cross-examination, Brig. Gen. Fraser conceded
that the road could be considered a “legitimate military target”, but only so long as “you don’t kill
civilians”.1563
431. In its Final Brief, the Defence submitted that the convoy road was a “legitimate military
objective”, stating that the road “was also used by UNPROFOR convoys, but its true masters were
the BiH Government and the ABiH.”1564 The Prosecution argued that the convoy road was used by
civilians, the UN and ABiH, and that it was “impossible for the SRK to be sure that the target was
military. The SRK fire onto the Igman Road was indiscriminate” and another example of “the
Accused’s failure to follow the principle of distinction.”1565
432. During the period of May, June and July 1995, the SRK also targeted UNPROFOR with
shelling.1566 According to David Harland, the reason behind the shelling was an attempt to limit the
UN’s observation activities.1567 On 29 June 1995, the PTT Building was shelled with three mortar
1558 Ronald Eimers, 20 Apr 2007, T. 4811 – 4812.
1559 David Harland, 15 Jan 2007, T. 344; Thorbjorn Overgard, 18 Jan 2007, T. 651 – 652; Ronald Eimers, 20 Apr 2007,
T. 4811 – 4812, P584, p. 3, P585, p. 7; Ismet Had`i}, 6 Mar 2007, T. 3237; Hussain Ijaz, 27 Apr 2007, T. 5406 – 5409;
P203, UNPROFOR report, 14 September 1994, pp 4, 7; P20, UNPROFOR sitrep, 8 July 1995, p. 3.
1560 Hussain Ijaz, 27 Apr 2007, T. 5406 – 5409; P634, Map of Sarajevo marked by Hussain Ijaz. See also, Thorbjorn
Overgard, 18 Jan 2007, T. 650 – 651; Ronald Eimers, 20 Apr 2007, T. 4808, 4812 – 4813, P585, P. 6.
1561 David Harland, 15 Jan 2007, T. 345.
1562 Rupert Smith, 7 Mar 2007, T. 3310, P334, pp 9 – 10. See also, David Harland, 16 Jan 2007, T. 461, 464 – 465; P24,
UNPROFOR report, 12 March 1995, pp 1 – 2; P25, UNPROFOR cable, 14 March 1995, p. 2; P11, Report on
implementation of COHA, 29 March 1995, p. 4; P16, UNPROFOR sitrep, 24 June 1995, p. 4.
1563 David Fraser, 8 Feb 2007, T. 1842.
1564 Defence Final Brief, paras 59 – 60.
1565 Prosecution Closing Brief, para. 375.
1566 David Harland, 15 Jan 2007, T. 345 – 346; Ghulam Muhammad Mohatarem, 19 Jan 2007, T. 716 – 717; P17,
UNPROFOR report, dated 30 June 1995; D12, UNPROFOR weekly sitrep, 19 May 1995, p. 2; P843, UNMO daily
sitrep, dated 23 July 1995, pp 2 - 3; P893, UNPROFOR daily sitrep, dated 22 June 1995, p. 3; P898, UNMO daily
sitrep, dated 3 July 1995, p. 2; D140, Order by the SRK Commander banning fire at UN forces, 25 July 1995; P745,
UNPROFOR Military Police report, dated 27 August 1995. Cf. Stevan Veljovi}, 30 May 2007, T. 5875 – 5876.
1567 David Harland, 15 Jan 2007, T. 346. See also, P17, UNPROFOR report, 30 June 1995.
145
Case No IT-98-29/1-T 12 December 2007
rounds.1568 Two of the mortar shells hit the PTT Building and one fell next to it.1569 Lt. Col. Fortin
believed that the PTT Building was directly targeted by the SRK:
“Col. Meille phoned Ini} who did not deny it was their doing, however he said it was not
intended to hit us, but rather the Bosnian mortar positions situated near the PTT. This situation had
occurred in the past, but the Serbs had been more accurate in their targeting. We took it to be a
warning about the use of our own mortars against them.” 1570
(b) Shelling by the ABiH
433. The Defence questioned witnesses on the possibility of the ABiH firing at their own people
within the confrontation lines. Evidence was presented that the ABiH fired at areas within the city
of Sarajevo.1571 Brig. Gen. Fraser recalled that on 18 and 19 September 1995, there were two mortar
attacks onto the city within approximately 40 minutes of each other.1572 Both shelling incidents had
the same point of impact, resulting in twice the number of casualties.1573 The crater analysis, part of
the investigation into the incidents that was carried out jointly with the BiH police and
UNPROFOR, indicated that the shells had come from two different directions; the first rounds came
from SRK-held territory, the second rounds came from Bosnian Muslim-held territory.1574 Brig.
Gen. Fraser characterised this incident as one “that was precipitated by the Serbs but finished off by
the Bosnians, the Muslims.”1575
434. According to T-60, the ABiH fired from Alipa{ino Polje over Vojniko Polje, which was
100 metres from Alipa{ino Polje, and that many buildings in Vojniko Polje “were damaged more
from the side where BH army had its positions than from the side where the Serb army had its
positions.”1576 The Trial Chamber recalls that Alipa{ino Polje and Vojniko Polje were located in
ABiH-held territory.1577
435. However, Lt. Com. Knustad testified that, in the investigations in which they were involved,
it was not determined that the ABiH shelled the Bosnian Muslim population.1578 He further noted
1568 Louis Fortin, P27, p. 15; P19, UNPROFOR sitrep, 2 July 1995, p. 3.
1569 Louis Fortin, P27, p. 15.
1570 Louis Fortin, P27, p. 15. See also, P19, UNPROFOR sitrep, 2 July 1995, p. 3. An UNPROFOR report addressing
the shelling stated “The Serbs seem to have no qualms about using counter-battery fire against Bosnian weapons close
to UN facilities. They may also be using the proximity of Bosnian weapons as a convenient excuse for targeting
UNPROFOR – as appears to have been the case with last night’s shelling of the PTT building”, D183, UNPROFOR
HQ sitrep, 1 July 1995, p. 2.
1571 John Jordan, 21 Feb 2007, T. 2639, P267, p. 6; T-7, 19 Jun 2007, T. 6843 – 6844; Sini{a Krsman, 6 Jun 2007, T.
6254 – 6255.
1572 David Fraser, 7 Feb 2007, T. 1779.
1573 David Fraser, 7 Feb 2007, T. 1779.
1574 David Fraser, 7 Feb 2007, T. 1779 – 1780.
1575 David Fraser, 7 Feb 2007, T. 1778.
1576 T-60, 25 July 2007, T. 8795 – 8796.
1577 See supra, para. 121, and infra, para. 902. See also, T-52, 28 June 2007, T. 7432, 7458; D279, Photograph marked
by T-52; T-60, 25 July 2007, T. 8815 – 8817, 8843 – 8844; D352, Photograph marked by T-60 (under seal).
1578 Thomas Knustad, 13 Feb 2007, T. 2006 – 2007, 2030, 2042 – 2043.
146
Case No IT-98-29/1-T 12 December 2007
that, “we were very well aware of the fact that the government army did not have very much heavy
weapons at all.”1579
436. In addition, according to John Jordan, rumours that the ABiH fired at the Bosnian Muslim
population circulated among the various groups of people in and around Sarajevo, “particularly
among the folks on the BSA side.”1580 Neither John Jordan nor Gen. Smith believed these
rumours.1581 John Jordan testified that he “didn’t think that the ABiH had the ability to pull that
off without everyone knowing it.”1582
437. Witnesses also testified that they had heard that the ABiH staged incidents for propaganda
purposes or to gain sympathy, but they did not see such incidents themselves. Brig. Gen. Fraser
recalled that he was told by French UNPROFOR soldiers that they had seen ABiH soldiers filming
a staged attack on children, in which no one was actually hurt, for broadcast on television.1583
According to David Harland, the UN in Sarajevo felt that the Bosnian Muslims wanted the media to
see the Bosnian Serbs attacking, so the Bosnian Muslims sometimes had to create the conditions for
that to happen.1584 Martin Bell testified that the ABiH and the Bosnian Muslim Government were
facing a very critical situation, especially with regard to their relative lack of heavy weapons, that
is, that they would only be able to break the siege by making “sacrificial attacks”, which they
attempted.1585 However, he also expressed his view that while the “Government forces” had an
interest in trying to break the siege and attracting the sympathy and intervention of the outside
world, he had “no evidence whatever that they would fire on their own people to do that” and did
not give credence to such stories.1586
438. In cross-examination, Gen. Smith stated that he heard that the ABiH and the Bosnian
Muslim Government used the civilian population in order to “attain certain military and political
goals” but that he never saw any evidence to support the assertions that “always came from the
other side.”1587 In addition, Ismet Ha|`i} rejected the Defence proposition that the ABiH was
“causing incidents in Sarajevo” as a “smoke-screen” to divert attention away from the use of the
1579 Thomas Knustad, 13 Feb 2007, T. 2006 – 2007, 2034. Cf. Stevan Veljovi, 31 May 2007, T. 5857, 5916 – 5917.
1580 John Jordan, 21 Feb 2007, T. 2640.
1581 John Jordan, 21 Feb 2007, T. 2640; Rupert Smith, 7 Mar 2007, T. 3338, 3340.
1582 John Jordan, 21 Feb 2007, T. 2640.
1583 David Fraser, 7 Feb 2007, T. 1781.
1584 David Harland, P2, MT. 28699. See also, W-46, 15 Mar 2007, T. 3817 – 3818, 3895, 16 Mar 2007, T. 3908 – 3909
(closed session), P387, p. 15 (under seal); T-48, 22 June 2007, T. 7180 – 7181; Vlajko Bo`i}, 17 July 2007, T. 8484.
1585 Martin Bell, 27 Apr 2007, T. 5286 – 5287.
1586 Martin Bell, 26 Apr 2007, T. 5266 – 5267.
1587 Rupert Smith, 7 Mar 2007, T. 3342, 3343.
147
Case No IT-98-29/1-T 12 December 2007
tunnel.1588 He stated: “we went through the tunnel trying to breakthrough the siege and to try and
drive “the aggressor” away, so that we could live in Sarajevo.”1589
6. Shelling Incidents Representative of the “Campaign”
439. In addition to the scheduled shelling incidents, the Prosecution presented evidence of
specific unscheduled shelling incidents, that is, incidents which are not enumerated in the Second
Schedule to the Indictment. This evidence includes incidents in which shelling from SRK-held
positions and from other locations caused civilian casualties.1590 The Trial Chamber will not address
all of them. However, it has taken them into account in its deliberations. By way of example, the
Trial Chamber presents one of the incidents below.
(a) Unscheduled Shelling Incidents
440. On 28 June 1995, at about 1030 hours, a modified air bomb hit an apartment building on
Geteova Street, number 5.1591 Three people died in the explosion and seven people were injured.1592
The explosion destroyed apartments on five floors, some apartments being completely destroyed,
1588 Ismet Had`i}, 6 Mar 2007, T. 3288 – 3289.
1589 Ismet Had`i}, 6 Mar 2007, T. 3289.
1590 See e.g. Shelling in Hrasnica, Sokolovii and Butmir from Ilidža, 17 November 1994: Ronald Eimers, P584, p. 3;
Shelling in the Centar Municipality from Mrkovii, 22 May 1995: P798, Official report, pp 1 – 2 (under seal); Shelling
in the Centar Municipality from Grbavica, 11 June 1995: P220, Criminal investigation file; Bogdan Vidovi}, 14 Feb
2007, T. 2094, 2100 – 2101; Shelling in Alipašino Polje from Ilidža, 22 June 1995: W-138, 30 Jan 2007, T. 1212, 1217,
1224, 1230, 1233, 1235 – 1238, 1240 – 1241, 31 Jan 2007, T. 1264 – 1265, 1 Feb 2007, T. 1350 – 1351, 1379 – 1381,
1384 – 1393; W-137, 20 Feb 2007, T. 2534 – 2537; Per Anton Brennskag, 8 Mar 2007, T. 3495 – 3496, 3499 – 3500;
P121, Set of reports regarding shelling Geteova Street, number 12 (under seal); P122, Sketch of shelling site; P125, Set
of photographs regarding shelling Geteova Street, number 12; P130, Forensic report by KDZ, dated 18 July 1995;
Shelling in Dobrinja from Lukavica, 25 June 1995: P800, Official report, dated 26 June 1995 (under seal); P801, Report
by KDZ, dated 26 September 1995; Shelling on Koševo Street from Žlatište, 26 June 1995: P325, Official report, dated
26 June 1995; Shelling on the TV Building from Rajlovac, 29 June 1995: W-116, P550, pp 2 – 3 (under seal); Shelling
in Novo Sarajevo from Mrkovii and Biosko, 30 June 1995: P233, Criminal investigation file, dated 30 June 1995, p. 2;
P234, Set of photographs regarding shelling Paromlinska Street, p. 2; P235, Forensic report by KDZ, dated 16 July
1995; Sanjin Hasanefendi}, 16 Feb 2007, T. 2307 – 2311; Shelling in Novo Sarajevo from Vraca, 18 July 1995: Sanjin
Hasanefendi}, 16 Feb 2007, T. 2311 – 2314, 2361 – 2367, 2369 – 6370; P236, Official note, dated 19 July 1995; P238,
Forensic report by KDZ, dated 22 September 1995; P237, Forensic report, dated 18 July 1995; P849, UNMO daily
sitrep, dated 19 July 1995, p. 19; Shelling of apartment block in the old town from Špicasta Stijena, 28/29 August 1995:
Harry Konings, 13 Mar 2007, T. 3603. For evidence pertaining to shelling from other, unspecified locations, See e.g.
Shelling of the State Hospital, late summer 1994: Milan Mandilovi, 17 Jan 2007, T. 564, 566 – 567, 18 Jan 2007, T.
595; Shelling of an apartment building in Hrasno, 5 July 1995: Sanjin Hasanefendi, 16 Feb 2007, T. 2376 – 2377;
Shelling of a bus in Dobrinja, 18 August 1995: W-138, 31 Jan 2007, T. 1325 – 1333, 1335, 1 Feb 2007, T. 1349 –
1351, 1418 – 1421; P148, Forensic investigation file, dated 18 August 1995 (under seal).
1591 W-138, 30 Jan 2007, T. 1241, 31 Jan 2007, T. 1286 – 1287, 1 Feb 2007, T. 1350 – 1351; W-28, P276, p. 2; P138,
Forensic report, dated 28 June 1995 (“Forensic report”), p. 1.
1592 W-28, P276, p. 2; P140, Official note, dated 27 July 1995, p. 1; P141, Official note, dated 28 June 1995, p. 2; The
Trial Chamber notes that P138 reports that two people were killed and six people suffered injuries, P138, Forensic
report, p. 1. W-138 testified that later information indicated that there were additional casualties, W-138, 31 Jan 2007,
T. 1293 – 1294.
148
Case No IT-98-29/1-T 12 December 2007
while others were partially destroyed.1593 The three persons who were killed and the seven who
were injured all lived in the apartment building.1594
441. Remnants of the projectile were retrieved from one of the apartments.1595 Those traces were
sent for analysis.1596 The traces were determined to be rocket motors and a plate, which “most
probably came from the propellant assembly of a modified FAB-250 aircraft bomb, calibre 325
mm.”1597 Based on the trace evidence and the “state of the site”, the azimuth was determined to
have been 261 degrees, with a margin of error of 25 degrees, indicating that the projectile was fired
from the direction of Ilid`a, SRK-held territory.1598
442. Berko Ze~evi}, the expert for the Prosecution on modified air bombs, analysed the evidence
regarding this shelling incident. In his report, he states that the azimuth was 285 degrees, with a
distance from the launch site of 6,000 metres, “that is, the wider area of Butila.”1599 Ilid`a is located
to the south-west of Alipa{ino Polje, whereas Butila is located to the north-west of Alipa{ino
Polje.1600 The Trial Chamber notes that the finding of the BiH police on the azimuth includes a
large margin of error and that 281 degrees falls within that margin of error. The Trial Chamber
further notes that the effective range of a FAB-250 air bomb is between 5,780 and 7,680 metres.1601
Finding
443. The Trial Chamber recalls its earlier finding that the ABiH was not in possession of
modified air bombs.1602 The Trial Chamber is satisfied that the modified air bomb originated from
SRK-held territory, either Ilid`a or Butila, and that it was launched by a member of the SRK. The
Trial Chamber is also satisfied that three people died and seven people were injured in the
explosion, all of them civilians living in the residential apartment building at Geteova Street,
number 5.
1593 P139, Set of photographs regarding shelling Geteova Street, number 5, pp 3 – 4; P141, Official note, p. 2; W-138
testified that three floors were destroyed, W-138, 31 Jan 2007, T. 1289 – 1292. See also, P586, Expert report of Berko
Zeevi, p. 151. The Trial Chamber notes that the photographs show that the apartments on three floors were
completely destroyed and that apartments below those show significant damage. In addition, the Trial Chamber notes
that W-138 confirmed that he took the photographs, W-138, 31 Jan 2007, T. 1289, 1294.
1594 P141, Official note, p. 2
1595 W-28, P276, p. 2; P141, Official note, pp 1 – 2.
1596 P142, Official note, dated 25 July 1995, p. 1.
1597 Ibid, p. 3.
1598 P141, Official note, p. 2; P138, Forensic report, p. 1; W-138, D32, p. 2 (under seal).
1599 P586, Expert report Berko Ze~evi}, p. 151.
1600 D59, Military map of Sarajevo area.
1601 P586, Expert report Berko Ze~evi}, p. 88.
1602 See supra, para. 107.
149
Case No IT-98-29/1-T 12 December 2007
(b) Scheduled Shelling Incidents
(i) Shelling of Livanjska Street on 8 November 1994
444. During the war, Ismet Ali} lived in Ko{evsko Brdo and Fikret Mujezinovi} lived on
Livanjska Street, Centar Muncipality, despite the danger posed by random sniping and shelling.1603
They stated that this was a purely residential area, with houses, a school and a police station at the
end of Livanjska Street, and there were no military establishments in the vicinity.1604 However,
there was a Red Cross kitchen and an ABiH military kitchen on another nearby street.1605 Fikret
Mujezinovi} testified that the military kitchen was used to prepare meals for the ABiH soldiers
deployed on the confrontation lines around Sarajevo. It remained closed through the day, shutting
down at 0500 hours, and opening again only at 1700 hours in order to enable delivery of food to the
soldiers between 2000 hours and 2400 hours, or until 0500 hours, when the street would ordinarily
be deserted. Everybody working at the kitchen wore civilian clothes and nobody in uniform was
allowed near the kitchen, not even soldiers returning from the front.1606 Men delivered the food to
soldiers at positions approximately two to two and a half kilometres away.1607 The confrontation
line was an estimated one kilometre away from this area.1608 There was a cease-fire in force on 8
November 1994 and there had been no shelling for some time.1609
445. On 8 November 1995, three shells impacted on Livanjska Street, between 1515 hours and
1800 hours.1610 Ismet Ali}, who was a boy at the time, was readying to play football with friends in
a playground on Livanjska Street, approximately 300 metres from the school playground. There
were 10 to 15 people in the area, including children returning from school.1611 Fikret Mujezinovi}, a
cook at the Red Cross kitchen, was at the Veteran Union office, from where he distributed parcels
to the families of the dead and wounded.1612 At about 1500 hours, Lejla Hod`i}, a girl around 12 to
14 years of age, came to his office and asked for a parcel. Given that parcels were only distributed
1603 Ismet Ali}, P640, p. 8; Fikret Mujezinovi}, 27 Feb 2007, T. 2792.
1604 Ismet Ali}, P640, p. 8; Fikret Mujezinovi}, 27 Feb 2007, T. 2794.
1605 Fikret Mujezinovi}, 27 Feb 2007, T. 2793; D87, Map marked by Fikret Mujezinovi}, 27 Feb 2007. This street is
now called Antuna Hangija, previously known as Mitra Trifunovica.
1606 Fikret Mujezinovi}, 27 Feb 2007, T. 2793 – 2794.
1607 Fikret Mujezinovi}, 27 Feb 2007, T. 2806.
1608 Ismet Ali}, P640, p. 9; Fikret Mujezinovi}, 27 Feb 2007, T. 2806.
1609 Ismet Ali}, P640, p. 5. A number of other witnesses described a “lull” in fighting in the latter months of 1994, see
infra, para. 782.
1610 The Trial Chamber notes that Livanjska Street is now called Bra}e Begi}, Fikret Mujezinovi}, 27 Feb 2007, T.
2825.
1611 Ismet Ali}, P640, p. 5.
1612 Fikret Mujezinovi}, 27 Feb 2007, T. 2793.
150
Case No IT-98-29/1-T 12 December 2007
after 1800 hours, Fikret Mujezinovi} asked her to come back later. Lejla Hod`i} walked back to the
house at number 26, which was about 25 to 30 metres from the office.1613
446. Suddenly, there was the sound of something fast-moving followed by a loud explosion (“the
first shell”).1614 The explosion threw Ismet Ali} over the fence at which he was standing and,
fearing more shelling, he took shelter in an apartment.1615 Fikret Mujezinovi}, who was in the
Veteran Union office, fell to the floor, later opening the door to find “shrapnel falling all over the
ground”.1616 He ran over to where the shell had exploded, which was not far away.1617
447. According to Ismet Ali}, shrapnel from the blast wounded his cheek, and two of his friends,
Adis Tinjak and Ceha Cehaji}, were wounded in the stomach and rushed to the hospital.1618 Ismet
Ali} was taken to hospital half an hour later. The piece of shrapnel is still lodged in his cheek.1619
Dino Bleki~, a young boy, sustained life-threatening injuries to his abdomen and died at the
hospital.1620 A woman named Nena Deljanin was seriously injured inside the building at number 26
and was declared dead on arrival at the hospital.1621 Fikret Mujezinovi} testified that he lifted Lejla
Hod`i} to put her in a car when he realised that she had received an injury to her head and had died.
He also said that he put the remains of her brains in his jacket pocket and zipped it up.1622 W-91
testified that in the course of BiH police investigation, pieces of brain were found in a pool of
blood, although the team did not find any victim at the scene, and that it later transpired that Lejla
Hod`i} had suffered a serious head wound and was missing a piece of her brain.1623 The criminal
investigation file showed that six persons were seriously injured, and Lejla Hod`i} and Nena
Deljanin were killed as a result of the first shell.1624
448. The Defence presented a death certificate for the victim Lejla Hod`i}, arguing that it
indicated that her brains remained intact and within her head.1625 It submitted that if her brain was
intact, it could not have been on the street as depicted in the video of the incident that was admitted
1613 Fikret Mujezinovi}, 27 Feb 2007, T. 2795.
1614 Ismet Ali}, P640, p. 8; Fikret Mujezinovi}, 27 Feb 2007, T. 2795.
1615 Ismet Ali}, P640, p. 8.
1616 Fikret Mujezinovi}, 27 Feb 2007, T. 2795.
1617 Fikret Mujezinovi}, 27 Feb 2007, T. 2795.
1618 Ismet Ali}, P640, p. 5; Fikret Mujezinovi}, 27 Feb 2007, T. 2797.
1619 Ismet Ali}, P640, p. 8.
1620 Fikret Mujezinovi}, 27 Feb 2007, T. 2796; W-91, 14 Mar 1994, T. 3738; P284, Official report, dated 8 November
1994 (“Official report”), p. 2 (under seal). The Trial Chamber notes that the victim Dino Bleki~ was first referred to as
female and then as male, but in P284, Official report, p. 2 (under seal), the victim is referred to as male.
1621 Fikret Mujezinovi}, 27 Feb 2007, T. 2799, 2804, 2815; P284, Official report, p. 2 (under seal).
1622 Fikret Mujezinovi}, 27 Feb 2007, T. 2798; P283, Photograph marked by Fikret Mujezinovi}.
1623 W-91, 15 Mar 2007, T. 3776, 3777 (private session); P377, Video of first shell in Livanjska Street, dated 8
November 1994.
1624 P284, Official report, pp 1, 2 (under seal). Cf. At the hospital, Ismet Ali} saw the bloody clothes of two wounded
persons and later learnt of three children who had died in the same incident, Ismet Ali}, P640, p. 9.
1625 See W-91, 15 Mar 2007. T. 3778 – 3779 (private session), 3782 – 3783 (private session); D127, Death certificate of
victim Lejla Hod`i}, 8 Nov 1994.
151
Case No IT-98-29/1-T 12 December 2007
into evidence.1626 It further argued that the incident site was “reconstructed” by the BiH police
under order of the investigative judge. Both of these arguments were made in support of the
Defence submission that the first shelling incident had been staged.1627
449. The impact of the first shell on Livanjska Street was investigated both by the French
Battalion of UNPROFOR and the BiH police. Local police arrived within 20 to 45 minutes of the
explosion; Fikret Mujezinovi} recalled that they secured the scene and requested children be kept
inside the school building since “people were expecting another shell to be fired”.1628 The BiH
police investigative team found the tail-fin embedded in the crater, in the asphalt, as occurs most
commonly in softer grounds.1629 The lodging of the tail-fin in the crater, along with other
accompanying circumstances, indicated to QMS Richard Higgs that “the mortar was probably fired
on a higher charge”.1630 The criminal investigation took about “one and a half hours, maybe two”
by which time it was dusk.1631 As will be discussed later in this section, around that time, two more
shells struck Livanjska Street.
450. After the UNPROFOR investigators arrived, a member of that battalion was prevented by
the BiH police from removing the tail-fin of the first shell from the ground.1632 The UNPROFOR
investigators left soon after, stating they would return in about 20 minutes.1633 However, the
UNPROFOR investigators only returned to the site of the impact of the first shell on Livanjska
Street the following day, having made a media statement that their investigation team had been
denied access to the site.1634
451. The investigation of the BiH police determined that the first shell had come from the
“aggressor’s position” “from the north, five degrees west”, exploding in front of the house at
number 26 at 1525 hours.1635 The subsequent and more detailed investigation report by the KDZ
determined that the shell was fired from the north-west, “in the direction of Poljine” and the angle
of descent was determined as 62 degrees.1636 The KDZ also found that the 82 mm mortar shell was
1626 W-91, 14 Mar 2007, T. 3734, 15 Mar 2007, T. 3782 – 3783.
1627 W-91, 15 Mar 2007, 3782 – 3783; P377, Video of first shell in Livanjska Street.
1628 Fikret Mujezinovi}, 27 Feb 2007, T. 2799 – 2800, 2809. See also, P284, Official report (under seal).
1629 W-91, 14 Mar 2007, T. 3750; Mirza Sablji}a, 19 Apr 2007, T. 4711, 4717; P578, UNPROFOR report, dated 9
November 1994, p. 2; D85, Official report on shelling incident of 8 November 1994 (“Official report”), p. 6. See also,
Richard Higgs, 24 Apr 2007, T. 5034.
1630 Richard Higgs, 24 Apr 2007, T. 5034.
1631 Fikret Mujezinovi}, 27 Feb 2007, T. 2800, 2810.
1632 Fikret Mujezinovi}, 27 Feb 2007, T. 2799 – 2800.
1633 Fikret Mujezinovi}, 27 Feb 2007, T. 2809; W-91, 14 Mar 2007, T. 3747.
1634 Fikret Mujezinovi}, 27 Feb 2007, T. 2815 – 2816; W-91, 15 Mar 2007, T. 3754.
1635 P284, Official report, pp 1, 2 (under seal).
1636 D85, Official report, p. 6.
152
Case No IT-98-29/1-T 12 December 2007
of model M74, a type formerly used by the JNA.1637 The UNPROFOR report corresponded with the
BiH police findings and identified the most “suspected area” as between Brijeg and Izlaze “on the
Serbian side”, slightly north-west of Livanjska Street.1638
452. QMS Higgs testified that, on the basis of the angle of descent and the position of the tail-fin
found embedded at the site, it was possible that the shell originated in Poljine, about 500 to 600
metres north of the confrontation line.1639 The Trial Chamber notes that the distance from Livanjska
Street to the confrontation line was approximately 700 metres to 1,000 metres, taking the origin of
fire well beyond the confrontation line and to Poljine, the area north-west of Sarajevo that was
under the control of the 1st Battalion of the SRK 3rd Sarajevo Brigade.1640
453. The Defence suggested the BiH police investigation into the first shelling continued on
9 November 1994.1641 Fikret Mujezinovi} professed no knowledge of this, and testified that the
investigators made their findings on 8 November 1994, at the end of the on-site investigation.1642
W-91 testified that although the BiH police did return to Livanjska Street the following day, it was
to investigate the second and third shelling incidents that took place later on the same day, as well
as to “reconstruct” the site of the first shelling for the purposes of the UNPROFOR investigation, as
they were required to do by the investigative judge.1643
454. While evidence of investigations into the first shelling incident was presented by the
Prosecution, the Defence tendered evidence of two shells following at 1725 hours and 1730 hours,
respectively.1644 The BiH police report tendered by the Defence makes reference to the
UNPROFOR investigation of the first shelling incident in front of house number 26, while the local
police was investigating the two later incidents around house number 36.1645 The BiH police report
also stated in conclusion that “all three mines were undoubtedly fired from the enemy
positions.”1646 Viewed collectively, the UNPROFOR reports on the shelling of Livanjska Street
address three incidents in all, as do the reports of the BiH police.
1637 W-91, 14 Mar 2007, T. 3738; Mirza Sablji}a, 19 Apr 2007, T. 4710; D85, Official report, p. 6; P578, UNPROFOR
report, p. 1.
1638 W-91, 14 Mar 2007, T. 3755; Mirza Sablji}a, 19 Apr 2007, T. 4722; D85, Official report, p. 4; P578, UNPROFOR
report, pp 2 – 3.
1639 Richard Higgs, 24 Apr 2007, T. 5035.
1640 Ismet Ali}, P640, p. 9; Fikret Mujezinovi}, 27 Feb 2007, T. 2806 – 2807; P595, Map marked by Richard Higgs. For
evidence pertaining to SRK control over area of Poljine, see infra Section II.B.3(d). See also, An|elko Draga{, 22 Jun
2007, T. 7076 – 7077; T-48, 22 Jun 2007, T. 7135 – 7136; Vlajko Bo`i}, 17 Jul 2007, T. 8404, 8409.
1641 Fikret Mujezinovi}, 27 Feb 2007, T. 2810; W-91, 15 Mar 2007, T. 3788 – 3789.
1642 Fikret Mujezinovi}, 27 Feb 2007, T. 2810, 2812.
1643 W-91, 14 Mar 2007, T. 3734, 3754 – 3755, 15 Mar 2007, T. 3788 – 3789.
1644 P578, UNPROFOR report; P284, Official report (under seal); D84, UNPROFOR report; D85, Official report.
1645 Mirza Sablji}a, 19 Apr 2007, T. 4705; D85, Official report, p. 3.
1646 D85, Official report, p. 7.
153
Case No IT-98-29/1-T 12 December 2007
455. As noted above, Livanjska Street was shelled two more times on 8 November 1994, at 1725
hours and at 1730 hours. The second shell impacted at 1725 hours and exploded on the asphalt
surface across the road from house number 36, about 30 to 40 metres behind where people were
assembled, near the entrance of the school building and on the right-hand side pavement, if viewed
from east to west.1647 “Several minutes later” a third shell landed in the yard of house number 36,
seven to ten metres away from the impact site of the second shell.1648 A woman, Razija [teta, was
found injured in the street and Muharem Ala|juz sustained a minor shrapnel wound while arranging
for Razija [teta to be driven to the hospital. 1649 Razija [teta died as a result of the wounds she
sustained.1650
456. The investigations by the KDZ and UNPROFOR into the second and third shells were
conducted simultaneously, but independently of one another, on 9 November 1994.1651 While
coinciding in several aspects, the investigative teams reached differing conclusions regarding the
possible direction of fire. In its Final Brief, the Defence highlighted this inconsistency.1652 The KDZ
report ascertained the angle of descent of the second and third shells, an 82 mm M68 mortar shell,
also formally used by the JNA, was 67 degrees.1653 The report concluded that the shells had been
fired “20 degrees from the east, probably from the wider area of [picasta Stijena occupied by the
aggressors,” although later in the report, it states that the direction of fire was north-east.1654 On
being asked about this description of the probable direction of fire in the KDZ report, QMS Higgs
testified that it was a terminological error in the presentation of direction, and not an error in the
ballistics calculations; he said that “the pattern of this crater is a good one.”1655 Mirza Sablji}a
attributed the error to the fact that Dragan Miokovi}, the inspector who compiled the report, was a
homicide investigator.1656 Later in the KDZ report, it is stated that the shells came from the northeast.
1657 Both Mirza Sablji}a and QMS Higgs interpreted “20 degrees from the east” as “from the
north to the east”, that is, north-east.1658 They both concurred in the finding.1659
1647 Fikret Mujezinovi}, 27 Feb 2007, T. 2801, 2810; D84, UNPROFOR report, p. 1; D85, Official report, p. 2; Ismet
Ali}, P640, p. 8.
1648 Fikret Mujezinovi}, 27 Feb 2007, T. 2801; W-91, 14 Mar 2007, T. 3748; D84, UNPROFOR report, p. 1; D85,
Official report p. 3.
1649 Fikret Mujezinovi}, 27 Feb 2007, T. 2801; D85, Official report pp 3, 9 – 12.
1650 D85, Official report pp 3, 11, 14.
1651 W-91, 15 Mar 2007, T. 3790.
1652 Defence Final Brief, para. 190.
1653 D85, Official report p. 6.
1654 D85, Official report, p. 3.
1655 Richard Higgs, 24 Apr 2007, T. 5038.
1656 Mirza Sabljica, 19 Apr 2007, T. 4726.
1657 D85, Official report, p. 6.
1658 Mirza Sabljica, 19 Apr 2007, T. 4726, 4764 – 4766; Richard Higgs, 24 Apr 2007, T. 5038 – 5039.
1659 Mirza Sabljica, 19 Apr 2007, T. 4766 – 4767; Richard Higgs, 24 Apr 2007, T. 5039.
154
Case No IT-98-29/1-T 12 December 2007
457. The UNPROFOR investigation found that it was “obvious” that the same mortar had fired
the two shells, and concluded that the angle of descent of the two shells was between 70 to 75
degrees.1660 It found that to fire the 82 mm shells from SRK-held territory, the angle had to be
below 60 degrees.1661 As a result, UNPROFOR found that “it is possible to conclude that the most
suspected areas are under the control of BiH.”1662
458. The inconsistency between the directions of fire was attributed to the fact that the
UNPROFOR team employed Finnish mortar tables for an 82 mm calibre shell, and these were
different from the tables for JNA-produced mortars that were used by the BiH police investigative
team.1663 Mirza Sabljica testified that the two teams relied on “different charges and different
ranges” and he noticed that the “maximum charge zero plus six in the Finnish tables had the range
twice the shorter one than applicable to those manufactured in the former Yugoslavia.”1664 In
response to questions put to him by the Defence, Mirza Sabljica reiterated that north-east was
definitely the direction of fire and declined to comment on the origin of fire, be it [picasta Stijena,
Grdonj, Orlovac or other locations to the north-east, as it was not an issue he had considered.1665
Mirza Sabljica also disagreed with the suggestion of the Defence that the shell could have come
from the north-west, as the shrapnel traces on the surface were too clear to allow for such errors.1666
459. QMS Higgs testified that the spray pattern indicated the angle of descent was closer to 60 to
65 degrees as determined by the BiH investigation.1667 The estimate of 60 to 65 degrees “gives the
mortar a lot longer range”, making it possible for the shells to have been “fired from a distance in
excess of four kilometres away” and “well beyond the confrontation line”.1668 QMS Higgs also took
account of the fact that nobody heard the second and third shells being fired, even though the shells
passed along very built-up residential areas. He also considered the lack of witnesses to the
“tremendous muzzle flash” that the mortar gives off upon being fired, which would have been
visible at 1725 hours in winter from miles away.1669 He testified that the shells could have been
fired from the other side of the confrontation line, over and behind the steep escarpment, and that
this would have muffled the sound.1670 QMS Higgs testified that based on his experience the “most
logical position” from which the second and third shells were fired was in territory held by the
1660 D84, UNPROFOR report, p. 2.
1661 D84, UNPROFOR report, p. 3.
1662 D84, UNPROFOR report, p. 3.
1663 W-91, 14 Mar 2007, T. 3757. Regarding the reason for the different mortar tables, see Per Anton Brennskag, P345,
p. 2.
1664 Mirza Sabljica, 19 Apr 2007, T. 4729.
1665 Mirza Sabljica, 19 Apr 2007, T. 4775 – 4776.
1666 Mirza Sabljica, 19 Apr 2007, T. 4775 – 4776.
1667 Richard Higgs, 24 Apr 2007, T. 5042; P590, Supplement to information report Richard Higgs, p. 3.
1668 Richard Higgs, 24 Apr 2007, T. 5047.
1669 Richard Higgs, 24 Apr 2007, T. 5043.
1670 Richard Higgs, 24 Apr 2007, T. 5042 – 5043.
155
Case No IT-98-29/1-T 12 December 2007
SRK, although in response to a question by the Defence, he could not categorically rule out the
possibility that the shell came from ABiH-held territory.1671
460. The Trial Chamber notes that the direction of fire of the second and third shell was
determined to be the north-east by both BiH police and UNPROFOR. This was confirmed by QMS
Higgs, Mirza Sabljica and W-91, all of whom testified that the origin of fire was SRK-held
territory.1672 The Defence, relying on one of the UNPROFOR reports on the incident, suggested that
the second and third shells were fired from ABiH-held territory.1673
461. On the issue of the possible purpose of such mortar attacks, QMS Higgs said that “a single
round fired into the centre of a populated area” does not present the prospect of obtaining any
military objective.1674 The only possible purpose would have been “to cause civilian casualties and
to put basically terror into the minds of the people in that area”.1675 In his opinion, the delay of
several minutes between the second and third shell at Livanjska Street was not intended to achieve
any military objective.1676 Given that 82 mm mortars are capable of firing 20 rounds a minute, the
delay was aimed at allowing time for people from the area to gather around and treat casualties,
thereby “catching more people in the area than were there in the first place” – “a tactic used by
terrorist organisations with bombs”.1677
Findings
462. On the afternoon of 8 November 1994, three shells exploded on Livanjska Street. On the
basis of the evidence of a number of witnesses, as well as the documentary evidence, the Trial
Chamber is satisfied that the first shell exploded on Livanjska Street in the afternoon of 8
November 1994. The Trial Chamber rejects the Defence argument that the first shelling was staged
since there is no evidence to support such an assertion, and it is contrary to eyewitness evidence
from Fikret Mujezinovi} and Ismet Ali}, and the evidence of W-91.
463. The Trial Chamber accepts the consistent evidence regarding the direction and origin of fire
of the first shell, that is, that it came from a north-westerly direction, and more precisely, Poljine,
which was under the control of the SRK. The Trial Chamber is satisfied that this shell was fired by
members of the SRK.
1671 Richard Higgs, 24 Apr 2007, T. 5044, 5100 – 5103.
1672 W-91, 14 Mar 2007, T. 3734, 3748; D84, UNPROFOR report, p. 4; Mirza Sabljica, 19 Apr 2007, T. 4765.
1673 D84, UNPROFOR report, p. 3.
1674 Richard Higgs, 24 Apr 2007, T. 5030.
1675 Richard Higgs, 24 Apr 2007, T. 5036.
1676 Richard Higgs, 24 Apr 2007, T. 5045.
1677 Richard Higgs, 24 Apr 2007, T. 5045.
156
Case No IT-98-29/1-T 12 December 2007
464. Although the evidence regarding the direction of fire of the second and third shells that hit
Livanjska Street is conflicting, the Trial Chamber is satisfied that, on the basis of the Mirza
Sablijca’s evidence, this inconsistency resulted from the UNPROFOR investigators’ erroneous
reliance upon Finnish mortar tables. The BiH police and QMS Higgs concluded that the direction of
fire was north-east, and from SRK-held territory. Furthermore, according to QMS Higgs, the range
of the 82 mm mortar and the angle of descent, together with his other observations, indicated that
the origin of fire was beyond the confrontation line, and thus SRK-held territory. In the
circumstances, the Trial Chamber finds that the second and third shells were fired from SRK-held
territory in the north-east and that the shells were fired by members of the SRK.
465. The evidence establishes that three civilians, Lejla Hod`i}, Dino Bleki} and Nena Deljanin,
were killed and six civilians were seriously injured as a result of the explosion of the first shell.
Evidence also shows that two civilians were injured by the explosions of the second and third
shells; Muharem Ala|juz was lightly injured and Razija [teta later died of her injuries. The Trial
Chamber finds that at least four civilians were killed and six civilians were seriously injured as a
result of the three shells that impacted on Livanjska Street on 8 November 1994.
(ii) Shelling of Ba{~ar{ija Flea Market on 22 December 1994
466. On the foggy morning of 22 December 1994, at around 0910 hours, two shells exploded on
the Ba{~ar{ija flea market.1678 Ba{~ar{ija was a part of town that W-12 knew well, since he lived in
Bistrik, a neighbouring suburb also in the old part of the city.1679 Bašaršija is a neighbourhood in
the old town of Sarajevo, in a north-easterly direction from Vrbanja Bridge. It was the most
important historical cultural part of the town of Sarajevo.1680 The area was under the control of the
ABiH, which also held Bistrik.1681 According to Maj. Stevan Veljovi}, a SRK operations officer,
the houses and buildings in Bašaršija were protected and remained intact throughout the war.1682
Ba{~ar{ija, including the flea market, was a civilian area.1683 While W-28 stated that there was no
military activity on 22 December 1994, W-12 recalled that, with the exception of this incident, there
was only sporadic shooting that day.1684 There were ABiH trenches at Brajkovac, at the foot of
1678 W-12, 1 Mar T. 3041, 2 Mar 2007, T. 3061, 3067 – 3068; D124, Criminal investigation file, dated 22 December
1994, p. 7; D101, Statement of Hanga Tsori Hammerton, p. 2; W-28, P275, p. 2; Ned`ib \ozo, 14 Mar 2007, T. 3715.
1679 W-12, 1 Mar 2007, T. 3039, 2 Mar 2007, T. 3071.
1680 Stevan Veljovi, 29 May 2007, T. 5751 – 5752.
1681 W-54, 12 Feb 2007, T. 1967–1968; W-12, 1 Mar 2007, T. 3042; Milorad Kati}, 31 May 2007, T. 5980; Predrag
Trapara, 27 June 2007, T. 7373 – 7374; P308, Map marked by W-12; D197, Map marked by Milorad Kati}. “Stari
Grad” was ABiH-held territory: David Harland, P2, MT. 28631.
1682 Stevan Veljovi, 29 May 2007, T. 5751 – 5752. See also, D186, Order by the SRK commander about full combat
readiness, dated 12 August 1994, p. 2.
1683 W-28, P275, p. 2.
1684 W-28, P275, p. 2; W-12, 2 Mar 2007, T. 3064.
157
Case No IT-98-29/1-T 12 December 2007
Mount Trebevi}, and about 50 metres diagonally south of the location where W-12 was walking at
the time of the incident.1685
467. W-12 was walking southwards, with Ba{~ar{ija to the West and Mount Trebevi} to the
East.1686 He heard a loud sound like a round being fired from a powerful, heavy weapon, such as a
cannon or gun.1687 “Several seconds” later, he heard a detonation, which led W-12 to conclude that
the shell had landed in Ba{~ar{ija although, due to the fog, W-12 did not see where the shell
impacted.1688 W-12 heard the sound of one shell being fired, but had no clear recollection of a
second round being fired.1689 However, from the sound, W-12 concluded that the shell was fired
from Vidikovac, a part of Mount Trebevi}, which was Bosnian Serb-held territory.1690 W-12 did not
see the shell being fired or in flight.1691 The Defence submitted, in its Final Brief, that, while
eyewitnesses heard the sound of an explosion, they heard neither the sound of the projectile being
fired nor its flight.1692
468. According to W-12, the fact that two shells exploded in the Ba{~ar{ija flea market was
confirmed on the radio and by his neighbours later in the day.1693 The explosions resulted in civilian
casualties; two civilians were killed and seven or eight were injured, three of them seriously.1694
469. Independent investigations were carried out by the KDZ, the UNPROFOR French Battalion,
and two UNMOs, Maj. Hanga Tsori Hammerton, a Kenyan UNMO, and Maj. Ilonyosi, an UNMO
from Nigeria.1695 Based on the crater analysis and fragments found on the scene, the BiH police
concluded that two 76 mm shells were fired from a gun or cannon.1696 No stablising fin was found
embedded in the crater to suggest that the projectile was a mortar shell.1697 On the basis of the
shrapnel fragments shown to him, Maj. Hammerton concluded that two 82 mm mortar shells had
been fired, although he could not establish the range.1698 The UNMO’s conclusion regarding the
calibre of shells was put to Ekrem Suljevi} by the Defence. Ekrem Suljevi} ruled out the possibility
1685 W-12, 2 Mar 2007, T. 3065.
1686 W-12, 2 Mar 2007, T. 3047.
1687 W-12, 1 Mar 2007, T. 3037.
1688 W-12, 1 Mar 2007, T. 3038, 3043, 2 Mar 2007, T. 3048, 3070.
1689 W-12, 2 Mar 2007, T. 3076 – 3078, P307, p. 2; P308, Map marked by W-12.
1690 W-12, 1 Mar 2007, T. 3039 – 3041, 2 Mar 2007, T. 3062, P306, p. 2; P308, Map marked by W-12. See also, W-28,
P275, p. 2. See also supra, para. 118.
1691 W-12, 1 Mar 2007, T. 3038 – 3039, 3043.
1692 Defence Final Brief, para. 191.
1693 W-12, 2 Mar 2007, T. 3077.
1694 D124, Criminal investigation file, pp 2, 3, 4; P833, UNMO daily sitrep, dated 23 December 1994, p. 6; P317,
Witness statements; P315, Investigation report, dated 22 December 1994, p. 1; W-12, 2 Mar 2007, T. 3077; D101,
Statement of Hanga Tsori Hammerton, p. 3.
1695 Ekrem Suljevi}, 2 Mar 2007, T. 3114; D101, Statement of Hanga Tsori Hammerton, p. 2.
1696 Ekrem Suljevi}, P310, p. 3; P315, Investigation report, p. 1.
1697 Ekrem Suljevi}, 2 Mar 2007, T. 3116 – 3117. See also, D101, Statement of Hanga Tsori Hammerton, p. 2.
1698 D101, Statement of Hanga Tsori Hammerton, p. 2.
158
Case No IT-98-29/1-T 12 December 2007
that the projectile was a 82 mm shell due to the evidence gathered on-site, including the crater and
the fragments collected.1699 He also testified that the munition was familiar to the investigative
team, based on characteristic markings on the fragments; the munition was one that the JNA had
possessed.1700 Ekrem Suljevi} further testified that no member of the investigative team differed on
the assessment regarding the calibre.1701
470. The KDZ calculated the azimuth as 159 degrees, a south-easterly direction, that is, from
Mount Trebevi} “where the enemy positions are located.”1702 During cross-examination, Ekrem
Suljevi} clarified that the investigative team did not calculate the distance from which the shell was
fired or the angle of descent.1703 The UNMO report concurred with the KDZ on the direction of fire,
determining that the direction of fire was 160 degrees, which was south, south-east of the impact
site.1704
471. The Defence submitted, in its Final Brief, that the alleged victims of the incident were not
found at the scene of the shelling, even though the BiH police arrived within 15 minutes of the
shelling.1705 In this regard, during cross-examination, Ned`ib \ozo, who investigated the incident,
confirmed that the dead and wounded were not found at the scene and testified that it was normal
for investigators not to see bodies at the scene, since “you cannot leave wounded or killed lying
about.”1706 Ekrem Suljevi} disagreed with the Defence suggestion that the nature of wounds could
be helpful indicators of the type of weapon employed.1707
472. The Defence argued that the explosions at the Ba{~ar{ija flea market were the result of a
bomb that had been previously planted there. However, it did not present any evidence in support of
this assertion. Nor did it suggest this possibility to the KDZ member, Ekrem Suljevi}. Ned`ib \ozo
testified that none of the fragments found on-site indicated that they were part of a “manufactured
device”.1708
1699 Ekrem Suljevi}, 2 Mar 2007, T. 3116, 5 Mar 2007, T. 3130 – 3132.
1700 Ekrem Suljevi}, 5 Mar 2007, T. 3132 – 3133, P310, p. 3.
1701 Ekrem Suljevi}, 5 Mar 2007, T. 3184.
1702 P315, Investigation report, p. 1; Ekrem Suljevi}, 5 Mar 2007, T. 3128 – 3129, P310, p. 3; D102, Map marked by
Ekrem Suljevi}; W-28, P275, p. 2.
1703 Ekrem Suljevi}, 2 Mar 2007, T. 3116.
1704 Ekrem Suljevi}, 2 Mar 2007, T. 3114; D101, Statement of Hanga Tsori Hammerton, p. 2.
1705 Defence Final Brief, para. 191.
1706 Ned`ib \ozo, 14 Mar 2007, T. 3716.
1707 Ekrem Suljevi}, 2 Mar 2007, T. 3120.
1708 Ned`ib \ozo, 14 Mar 2007, T. 3728.
159
Case No IT-98-29/1-T 12 December 2007
Findings
473. On 22 December 1994, two shells exploded at the Ba{~ar{ija flea market. While recognising
the discrepancy in the evidence regarding the calibre of the shell that exploded at the flea market,
the Trial Chamber is satisfied, on the basis of the investigations carried out by both the BiH police
and the UNMOs, that the direction of fire was south-east, that is, from Mount Trebevi}.
Furthermore, the Trial Chamber notes that the BiH police identified “the enemy positions” as the
origin of fire, as did W-12, who heard the shell being fired and determined it was fired from
Vidikovac, a part of Mount Trebevi}, which was Bosnian Serb-held territory. On the basis of this
evidence, the Trial Chamber finds that the shell was fired from SRK-held territory and that it was
fired by members of the SRK.
474. With regard to the Defence submission that the alleged victims were not found by the BiH
police on the scene, the Trial Chamber recalls that evidence was presented in respect of this
incident, as well as others, that after a shelling the wounded and bodies of the dead were removed
from the scene as quickly as possible. On the basis of evidence from witnesses and the BiH police
report, the Trial Chamber is satisfied that at least seven civilians were injured, three of whom were
seriously injured, and two civilians were killed as a result of the shelling of the Ba{~ar{ija flea
market.
(iii) Shelling of a Residential Area in Hrasnica on 7 April 1995
475. In April 1995, Ziba [ubo, a homemaker, was living with her husband Zemir, her twin sons
Elmir and Elvir, her daughter Emira Brajlovi}, and grandson Elvis Brajilovi} in a two-storey house
at Alekse [anti}a Street, number 1, Hrasnica, Ilid`a Municipality.1709 Ziba [ubo’s cousin, Ziba
^ustovi}, lived with her daughter, Aldijana, who was twelve or thirteen years old in 1995, in a
smaller house two metres away but in the same yard.1710
476. On 7 April 1995, it was sunny and there was good visibility.1711 In the morning of that day
W-57, a police investigator, was having coffee with his colleagues when, at about 0850 hours, they
heard a sound like a landing plane.1712 The sound stopped and was followed by a different sound,
something like a whoosh.1713 W-57 “could feel” that the projectile flew slowly in comparison to
artillery projectiles.1714 One or two seconds later, W-57 and his colleagues heard a very strong
1709 Ziba [ubo, P279, p. 1, P280, p. 2; P544, Photograph of homes marked by W-57.
1710 Ziba [ubo, P280, p. 2.
1711 W-57, P539, p. 2 (under seal).
1712 W-57, P538, p. 4 (under seal), P539, p. 2 (under seal).
1713 W-57, P539, p. 2 (under seal).
1714 W-57, P538, p. 4 (under seal).
160
Case No IT-98-29/1-T 12 December 2007
explosion from the centre of Hrasnica.1715 They felt the detonation, pressure and compression from
the explosion, and this prompted them to lie on the floor, in anticipation of a second explosion.1716
The investigators heard a sound, “like everything was breaking in the neighbourhood.”1717 Maj.
Thorbjorn Overgard also recalled hearing a noise like an aeroplane before the explosion.1718
477. At that time, Ziba [ubo’s daughter and husband had gone off to work.1719 Ziba [ubo was
alone in the house with her sons and grandson, who were asleep in rooms on the first floor.1720 Ziba
[ubo had invited Ziba ^ustovi} over for coffee.1721 However, she never made it to Ziba [ubo’s
house.1722
478. At about 0850 hours, a shell fell and destroyed Ziba [ubo’s house.1723 When the shell
exploded, the windows suddenly went dark.1724 Objects started falling on Ziba [ubo.1725 She did not
hear any sound but she immediately realised that a shell had exploded because the house was
“caving in and falling apart.”1726 Ziba [ubo felt pain from objects hitting her and she was
effectively buried in rubble.1727 The roof and first floor of the house were destroyed and the top of
the house collapsed to the ground floor.1728 She then heard her children calling for her and
crying.1729 She shouted to them to run away and get to safety.1730 Ziba [ubo crawled through the
rubble and once she reached the top, she saw her children running across the street in their
underwear. She noticed that her grandson was wounded.1731
479. According to W-57, there was no military activity that morning; it was very quiet.1732
However, there is evidence that at about this time there was an increase in military activity.1733 Maj.
Overgard did not think that the house on which the bomb landed could have been a military target;
“there were no signs of military flags …. It was not different from all the other houses in
1715 W-57, P538, p. 4, P539, p. 2 (under seal).
1716 W-57, P539, p. 2(under seal).
1717 W-57, P538, p. 4 (under seal), P539, p. 2 (under seal).
1718 Thorbjorn Overgard, 19 Jan 2007, T. 676.
1719 Ziba [ubo, P279, p. 1, P280, p. 2.
1720 Ziba [ubo, P280, p. 2.
1721 Ziba [ubo, P279, p. 1, P280, p. 2.
1722 Ziba [ubo, P280, p. 2.
1723 Ziba [ubo, P279, p. 1.
1724 Ziba [ubo, P279, p. 1, P280, p. 2.
1725 Ziba [ubo, P280, p. 2.
1726 Ziba [ubo, P280, pp 2, 3.
1727 Ziba [ubo, P280, p. 3.
1728 W-57, P539, p. 3 (under seal); Ziba [ubo, P279, p. 1, P280, p. 3.
1729 Ziba [ubo, P280, p. 3.
1730 Ziba [ubo, P279, p. 1, P280, p. 3.
1731 Ziba [ubo, P279, p. 1, P280, p. 3.
1732 W-57, 17 Apr 2007, T. 4588.
1733 Martin Bell, 27 Apr 2007, T. 5311; W-57, 17 Apr 2007, T. 4565; P825, UNMO sitrep, dated 7 April 1995, p. 2. See
also infra, Section II.E.9(d) ABiH Offensives.
161
Case No IT-98-29/1-T 12 December 2007
Hrasnica.”1734 In its Final Brief, the Defence submits that there were military activities between the
Famos Factory and the Igman Road.1735 The Trial Chamber notes that, on the basis of the map
marked by W-57, the Famos Factory was approximately one to one and half kilometres from the
incident site.1736 W-57 also estimated that the Igman Road was about 300 to 400 metres above the
settlement where the incident happened.1737 He thought the point of impact of the air bomb was
very far from the ABiH Brigade and the Company headquarters located in Hrasnica, but closer to
the UNMOs’ accommodation, which he estimated to be about 800 to 900 metres from the Battalion
Headquarters and one kilometre from the Company Headquarters.1738 Maj. Overgard testifed that
the Igman Road, on which there was civilian and military traffic, was more than a kilometre from
the site of the incident.1739
480. In that regard, the Defence made a more general submission that Hrasnica was a military
area.1740 The Trial Chamber’s analysis of the civilian status of Hrasnica is carried out elsewhere in
this Judgement, and is to be read in conjunction with this paragraph.1741 The Trial Chamber finds
that Hrasnica was a civilian area.
481. Ziba ^ustovi} was killed by the shell explosion.1742 Ziba [ubo fainted when she saw Ziba
^ustovi}; half of her head was missing and she was covered in blood.1743 She does not recall what
happened after; she only remembers that she later found herself sitting at the bottom of the rubble,
where she regained consciousness. However, she lost consciousness again after telling a neighbour,
Zijo Mujanovi}, to look for Ziba ^ustovi}.1744 When Ziba [ubo woke up, she was in a hospital.1745
There were a number of injured people who were taken to hospital as well as people with minor
injuries, such as cuts and bruises.1746
1734 Thorbjorn Overgard, 19 Jan 2007, T. 676.
1735 Defence Final Brief, para. 202.
1736 P540, Map marked by W-57.
1737 W-57, 17 Apr 2007, T. 4566.
1738 Thorbjorn Overgard, 18 Jan 2007, T. 648; D17, Map marked by Thorbjorn Overgard.
1739 Thorbjorn Overgard, 19 Jan 2007, T. 687, 693 – 694. See also, supra, paras 429 – 431.
1740 Defence Final Brief, para. 202.
1741 See infra, paras 899 – 900.
1742 Ziba [ubo, P280, p. 3; W-57, 17 Apr 2007, T. 4578, P539, p. 3 (under seal); P420, Death certificate of Ziba
^ustovi}, dated 7 April 1995 (under seal); P542, Official report on shelling of Hrasnica on 7 April 1995, dated 7 April
1995, p. 2; P825, UNMO sitrep, also reports the death of Ziba ^ustovi}.
1743 Ziba [ubo, P280, p. 3, P279, p. 1; P281, P282, Photographs of Ziba [ubo’s house.
1744 Ziba [ubo, P279, p. 1, P280, p.3.
1745 Ziba [ubo, P279, p. 1, P280, p. 3.
1746 W-57, P539, p. 3 (under seal). According to W-57, one civilian was killed and three civilians were wounded, W-57,
P538, p. 4 (under seal).
162
Case No IT-98-29/1-T 12 December 2007
482. Ziba [ubo still has back and arm pain from the injuries she suffered; her hearing is impaired
and, since the day of the shelling, she suffers from high blood pressure.1747 One of her sons also has
problems hearing.1748
483. On leaving the police station, W-57 saw a lot of smoke and dust about 150 metres from the
office in the south-easterly direction.1749 W-57 went to the site immediately and saw that the brick
house on which the bomb impacted was totally destroyed.1750 Another small house next door was
also destroyed and about twenty other nearby houses suffered damage. Some were severely
damaged.1751 The BiH police report lists ten houses that suffered “extensive damage”.1752 Similarly,
the KDZ report states that eleven damaged houses were photographed and sketched.1753 All
windows of the buildings in a semi-circle from the impact location were broken.1754 However, many
houses had already suffered damage from previous explosions in the past four years, making it
difficult to distinguish between damage caused by this explosion and pre-existing damage.1755 W-57
secured the site.1756
484. An investigation team, of which W-57 and W-116 were members, returned to the scene at
about 1500 hours to conduct the investigation.1757 The investigation was concluded by 1600 hours
that day.1758 Trace evidence, including fragments of an air bomb and rockets were discovered at the
site and sent for analysis.1759 According to W-116, the day after the incident, two more engines and
the container with rocket fuel were found.1760
485. An investigation was also carried out by UNMOs on 8 April 1995.1761 Maj. Overgard
recounted that, after the explosion occurred, the UNMOs stationed in Hrasnica first tried
unsuccessfully to contact the BiH police. They then went to the site of the explosion, where Maj.
Overgard testified he saw the damage caused by the explosion and the feet of a person wearing a
1747 Ziba [ubo, P280, p. 3.
1748 Ziba [ubo, P280, p. 3.
1749 W-57, P539, p. 2 (under seal), P538, p. 4 (under seal).
1750 W-57, P538, p. 4 (under seal), P539, p 3 (under seal); P84, Set of photographs.
1751 Thorbjorn Overgard, 18 Jan 2007, T. 646; W-116, 18 Apr 2007, T. 4622; W-57, P539, p. 3 (under seal).
1752 P542, Official report, p. 2.
1753 P553, Forensic report, dated 7 April 1995, p. 1 (under seal).
1754 W-57, P538, p. 4 (under seal).
1755 W-116, 18 Apr 2007, T. 4653 – 4654; W-57, 17 Apr 2007, T. 4565.
1756 W-57, P539, p. 3 (under seal).
1757 W-57, 17 Apr 2007, T. 4551, P539, p. 3 (under seal); P542, Official report, p. 1; For evidence pertaining to the
membership of the investigative team and its activities, see W-116, 17 Apr 2007, T. 4616 – 4617, 18 Apr 2007, T. 4622
– 4623, 4656, P548, pp 2 – 3; W-57, 17 Apr 2007, T. 4582 – 4583, P539, p. 3 (under seal); P552, Sketches from
criminal report (under seal); P553, Forensic report (under seal); P554, Set of photographs.
1758 W-57, 17 Apr 2007, T. 4583; P542, Official report, p. 2.
1759 W-116, P548, p. 3; W-57, P538, p. 4 (under seal); P542, Official report, p. 2; P553, Forensic report (under seal).
1760 W-116, P548, p. 3.
1761 Thorbjorn Overgard, 19 Jan 2007, T. 662; P224, UNMO report, dated 10 April 1995, p. 1. Cf. P542, Official report,
p. 1.
163
Case No IT-98-29/1-T 12 December 2007
camouflage uniform under the bricks.1762 The Commander of ABiH’s 4th Motorised Brigade was at
the site and sent the UNMOs home, where they were kept under the guard of three ABiH soldiers,
posted outside their house, until approximately 1900 hours.1763 At around 1900 hours, Maj.
Overgard and another UNMO, Calum Gunn, went to the site but it was too dark to investigate.1764
The next morning, the ABiH guards were back.1765
486. Maj. Overgard thought the ABiH did not trust them to do a proper investigation into such an
important incident and that it did not want the UNMOs to disturb the investigation of the BiH
police.1766 However, according to W-57, the UNMOs performed the investigation together with the
ABiH on 7 April 1995 and the ABiH tried to be as co-operative as possible.1767 He also stated that
the UNMOs were merely advised to stay indoors until things got quieter and confirmed that there
were armed men around the UNMO residence. He claimed that they were not there to prevent the
UNMOs from leaving but rather to ensure their safety. He stated that “things were getting very
tense” and that he was afraid that something might happen to them.1768 According to W-57, the
UNMOs could move freely after the BiH investigation was completed.1769
487. At approximately 1300 hours on 8 November 1994, the UNMOs were able to investigate the
scene.1770 The person, wearing camouflage, whose feet Maj. Overgard had seen coming out from
under the bricks was not there anymore, but Maj. Overgard thought the person could have been a
soldier on leave or just a civilian wearing these clothes.1771 It was only later that Maj. Overgard
saw, at the morgue, the body of the woman killed in the explosion.1772
488. The BiH police and UNMO investigations concluded that the SRK had used a modified air
bomb to target Hrasnica.1773 The UNMO team relied on traces found on the scene, witnesses’
statements and the noise the UNMOs heard before the bomb landed.1774 Maj. Overgard dismissed
the possibility that the damage could have been caused by ammunition placed inside the house
1762 Thorbjorn Overgard, 18 Jan 2007, T. 641, 19 Jan 2007, T. 665 –667.
1763 Thorbjorn Overgard, 18 Jan 2007, T. 641, 19 Jan 2007, T. 669, 671.
1764 Thorbjorn Overgard, 19 Jan 2007, T. 672.
1765 Thorbjorn Overgard, 19 Jan 2007, T. 672.
1766 Thorbjorn Overgard, 18 Jan 2007, T. 642, 19 Jan 2007, T. 673.
1767 W-57, 17 Apr 2007, T. 4584; P542, Official report, p. 2. See also, W-116, 17 Apr 2007, T. 4617, 18 Apr 2007, T.
4658 – 4659, 4660.
1768 W-57, 17 Apr 2007, T. 4590 – 4592.
1769 W-57, 17 Apr 2007, T. 4593.
1770 Thorbjorn Overgard, 18 Jan 2007, T. 641 – 642, 19 Jan 2007, T. 673 – 674.
1771 Thorbjorn Overgard, 19 Jan 2007, T. 674 – 675.
1772 Thorbjorn Overgard, 19 Jan 2007, T. 666.
1773 W-57, 17 Apr 2007, T. 4558, P538, p. 4 (under seal); P541, Protest letter from the ABiH to UNPROFOR, 7 April
1995; P224, UNMO report; Thorbjorn Overgard, 18 Jan 2007, T. 639 – 642; P83, Map marked by Thorbjorn Overgard;
D15, Map showing location of Sierra Sierra 2. See also Berko Ze~evi}, 23 Apr 2007, T. 4974 – 4976.
1774 Thorbjorn Overgard, 19 Jan 2007, T. 676, 693.
164
Case No IT-98-29/1-T 12 December 2007
because the bricks were drawn into the house.1775 Martin Bell reported the incident for the BBC and
recalled that it was, to his knowledge, the first use of a “propelled aircraft bomb” in Sarajevo.1776
489. W-57 interviewed a number of people from the settlement of Sokolovi} Kolonija, which lies
between Ilid`a and Hrasnica, who had seen the bomb in flight, leaving a trail of smoke that
indicated it had come from the north-west.1777 An eyewitness told W-57 that he saw the bomb in
flight.1778 Another witness had seen the bomb being fired.1779 ABiH reconnaissance observers
posted at Mount Igman had seen what appeared to be a rocket launcher truck near the water supply
building in Ilid`a by.1780 However, they did not see the projectile being launched.1781 Eyewitnesses
told W-116 that the bomb was launched from the yard of a factory in Ilid`a, from a truck that had
come out of the factory.1782 The Trial Chamber notes the Defence submission that the witnesses
were all members of the ABiH. The Defence further suggested that the incident had been staged.1783
490. The investigations by both the BiH police and UNMOs concluded that the modified air
bomb was launched from an area near a factory in Ilid`a, a Bosnian Serb controlled area, at a
distance of approximately four kilometres from the point of impact.1784 The place eyewitnesses
identified as the origin of fire was a position held by the VRS.1785 Berko Ze~evi}, an expert on
modified air bombs, concluded that the area between Rimski Most and Plandi{te, west of Ilid`a,
was a possible launch area, which was consistent with the conclusions of the ABiH and UNMO
investigators.1786
491. Furthermore, an order from the SRK, dated 6 April 1995 and signed by the Accused, stated
“the Ilid`a Brigade will immediately prepare a launcher with an aerial bomb and transport the
bomb for launching. … The most profitable target must be selected in Hrasnica or Sokolovi}
Kolonija, where the greatest casualties and material damage would be inflicted.”1787 According to a
1775 Thorbjorn Overgard, 19 Jan 2007, T. 675.
1776 Martin Bell, 26 Apr 2007, T. 5261 – 5162, 27 Apr 2007, T. 5304, D178, p. 14; P621, BBC report on 7 April 1995
incident in Hrasnica.
1777 W-57, 17 Apr 2007, T. 4547, P538, p. 4 (under seal), P539, pp 2, 4 (under seal); P540, map marked by W-57.
1778 W-57, P538, p. 4 (under seal).
1779 W-57, P538, p. 4 (under seal); P586, Expert report Berko Ze~evi}, p. 116.
1780 W-57, 17 Apr 2007, T. 4552.
1781 W-57, P539, p. 4 (under seal).
1782 W-116, P548, p. 3.
1783 See, e.g., Defence Final Brief, para. 202.
1784 Thorbjorn Overgard, 18 Jan 2007, T. 640; W-57, 17 Apr 2007, T. 4558, P539, pp 3, 4 (under seal); W-116, P548, p.
3.
1785 W-57, 17 Apr 2007, T. 4552, P538, p. 5 (under seal); W-116, P548, p. 3.
1786 P586, Expert report Berko Ze~evi}, p. 118.
1787 P226, Order by SRK commander to prepare air bomb launcher, dated 6 April 1995 (“Order by SRK commander, 6
April 1995”).
165
Case No IT-98-29/1-T 12 December 2007
SRK combat report from the SRK, dated 7 April 1995, a 250 kilogram aerial bomb was launched at
the centre of Hrasnica on 7 April 1995.1788 W-116 stated that the attack was aimed at civilians.1789
Findings
492. On the basis of witness testimony, including from W-57 and Maj. Overgard, and the BiH
police and UNMO investigation reports, and Berko Ze~evi}’s evidence, the Trial Chamber is
satisfied that the projectile that exploded in Hrasnica on 7 April 1995 was a modified air bomb. The
Trial Chamber also recalls its earlier finding that the ABiH did not have or use modified air bombs;
only the SRK possessed and used them.
493. The Trial Chamber is also satisfied, on the basis of the evidence of Ziba [ubo, W-57, Ziba
]ustovi}’s death certificate, and the BiH police and UNMO reports, that one civilian was killed and
three civilians were injured, one of them seriously, as a result of the explosion of the modified air
bomb.
494. In addition to the death and injuries suffered, there is witness, photographic and
documentary evidence of extensive damage caused to houses around the area where the modified
air bomb exploded, including the complete destruction of Ziba [ubo’s house and the house next
door. The Trial Chamber finds that the explosion of the modified air bomb caused substantial
damage to houses in the vicinity of the explosion; the explosion completely destroyed two houses
and damaged at least ten other houses nearby.
495. The evidence from the BiH and UNMO investigations, eyewitnesses, and Berko Ze~evi} is
consistent as to the direction from which the modified air bomb was fired. While some of the
eyewitnesses were members of the ABiH, others were not. The Trial Chamber rejects the Defence
submission that it should find the evidence of the ABiH observer eyewitnesses not credible because
they were members of the ABiH. The Trial Chamber does not view this as having any bearing on
the determination of the direction of fire made by the BiH police, UNMOs and Berko Ze~evi}.
Moreover, on 6 April 1995, the Accused ordered the Ilid`a Brigade to target an area of Hrasnica or
Sokolovi} Kolonija where “the greatest casualities and material damage would be inflicted.” This
was followed by an SRK combat report dated 7 April 1995, that reported there was a lauching of an
aerial bomb at Hrasnica that day. The Trial Chamber finds that the modified air bomb that exploded
in Hrasnica on 7 April 1995 was fired from the area north-west of the impact site, in the area of
1788 P225, SRK combat report, dated 7 April 1995. See also Asam Butt, 15 Feb 2007, T. 2210 – 2211, who also testified
that a “strong connection” existed between the two orders.
1789 W-116, P548, p. 3. See also P541, Protest letter from the ABiH to UNPROFOR, 7 April 1995.
166
Case No IT-98-29/1-T 12 December 2007
Ilid`a, an area that was controlled by the SRK and that the modified air bomb was launced by
members of the SRK.
(iv) Shelling of Safeta Zajke Street on 24 May 1995
496. In May 1995, An|a Gotovac lived in Safeta Zajke Street, number 43, near the railway
technical school, across the tracks behind the Television Building, in the Novi Grad
Municipality.1790 At about 1000 hours on 24 May 1995, she was sitting outside, at a table in front of
her garage.1791 Enes Ja{arevi} was working in an electric transformer station in the vicinity.1792
497. It was a quiet day with no ABiH troops present and there had been no shooting between
0930 and 1000 hours.1793 The Trial Chamber notes the Defence submission that in May 1995 there
was fighting “in the normal combat zones, namely Butmir/Ilid`a, Grbavica/Debelo Brdo” and, at
the end of May, the most intense fighting was in Sedrenik and Zetra.1794 When shown a report by
the Defence, pertaining to ABiH operations conducted 24 May 1995, Enes Ja{arevi} testified that
he did not notice any military activity “coming from Sarajevo” on that day.1795 The Defence
submits, in its Final Brief, that the presence of tyres in a photograph could indicate that there was a
military facility nearby.1796 However, when W-116 was questioned by the Defence during crossexamination
about their presence, he testified that a car repair workshop was there and that Safeta
Zajke Street was a residential area with only civilian houses.1797 An|a Gotovac testified that she
never saw any ABiH positions or equipment in her street or neighbourhood.1798 However, she
confirmed, when asked by the Defence, that soldiers would pass through her street in order to go to
the ABiH-held @u~ Hill. She explained that because she lived downhill, they were “not exactly”
passing through her neighbourhood.1799 Berko Ze~evi} noted in his report that apart from civilian
settlements, the area showed an abundance of civilian objects in the vicinity, such as the Bosnia
Radio and Television Building (“TV Building”), the @ica factory, the transformer station in
Majdanska Street, which was hit later that day, the Novi Grad Municipal Assembly, all of which
were very close to the point of impact.1800
1790 An|a Gotovac, P522, p. 2; P556, Map marked by W-116.
1791 An|a Gotovac, P523, p. 2.
1792 Enes Ja{arevi}, 1 Mar 2007, T. 2987; D96, Witness Statement by Enes Ja{arevi}, dated 10 March 1997 (“Statement
by Enes Ja{arevi}”), p. 2.
1793 Andja Gotovac, 3 Apr 2007, T. 4463; Enes Ja{arevi}, 1 Mar 2007, T. 2991 – 2992.
1794 Defence Final Brief, para. 117. See supra, Section II.E.9.(d) ABiH Offensives.
1795 Enes Ja{arevi}, 1 Mar 2007, T. 3011 – 3013; D95, Report by Vahid Karaveli}, dated 24 May 1995, p. 2.
1796 P562, Photographs, p. 7 (under seal).
1797 W-116, 18 Apr 2007, T. 4682 – 4683.
1798 An|a Gotovac, 3 Apr 2007, T. 4455, 4457 – 4458, 4459, 4462, P522, p. 2. See also W-116, 18 Apr 2007, T. 4682 –
4684.
1799 An|a Gotovac, 3 Apr 2007, T. 4458.
1800 P586, Expert report Berko Ze~evi}, p. 125.
167
Case No IT-98-29/1-T 12 December 2007
498. That day, around 0945 hours, a projectile fell on the asphalt surface in the centre of Safeta
Zajke Street, opposite An|a Gotovac’s house.1801 Ana Gotovac testified that she heard something
that sounded like a plane. Before she could raise her head, there was an explosion.1802 She grabbed
the table but it was pulled out of her hands by the force of the blast, which then blew her away.1803
An|a Gotovac heard a lot of screaming.1804 The roof of her house was destroyed.1805
499. A piece of shrapnel was lodged deep into An|a Gotovac’s left shoulder, and this injury
required surgery.1806 She was later discharged from hospital but needed after-care for two
months.1807 She still has breathing problems and cannot lean back on her left side.1808 Also, she is
“permanently affected by the constant fear that she felt during that three and a half years.”1809 She
takes medication “to calm her nerves” and cannot sleep more than three or four hours a night.1810
500. An|a Gotovac’s neighbour was wounded and another person lost his legs.1811 They were
taken to the hospital.1812 Investigators found that Ai{a Hrustan and Ivo Mileti} were killed in the
explosion and five civilians, including An|a Gotovac, were seriously wounded and six houses were
damaged.1813
501. An|a Gotovac did not know which direction the projectile came from. She was told by
different people that it came from Hre{a and Trebevi}.1814 Enes Ja{arevi} was indoors when he
heard a bomb fly over. He had the impression that it went towards or behind the TV Building.1815
Everyone in his building got scared; some people ran for shelter. Enes Ja{arevi} heard a dull
1801 W-116, P550, p. 3 (under seal); P557, Sketch of the point of impact made by W-116 (under seal); P586, Expert
report Berko Ze~evi}, p. 121.
1802 An|a Gotovac, 3 Apr 2007, T. 4463, P523, p. 2.
1803 An|a Gotovac, P523, p. 2.
1804 An|a Gotovac, P523, p. 2.
1805 An|a Gotovac, 3 Apr 2007, T. 4454, P523, p. 2.
1806 An|a Gotovac, 3 Apr 2007, T. 4454, P523, p. 2.
1807 An|a Gotovac, P523, p. 2.
1808 An|a Gotovac, P523, p. 2.
1809 An|a Gotovac, P522, p. 2.
1810 An|a Gotovac, P522, p. 2.
1811 An|a Gotovac, 3 Apr 2007, T. 4463, P523, p. 2.
1812 An|a Gotovac, P523, p. 2.
1813 W-116, P550, p. 3 (under seal); W-116, 18 Apr 2007, T. 4626; P562, Photographs (under seal); P586, Expert report
Berko Ze~evi}, p. 121; P560, P566, Official report, dated 24 May 1995, p. 2 (under seal). The Trial Chamber notes
P560 and P566 refer to the same report; P559, KDZ forensic report, dated 24 May 1995, p. 1 (under seal); P421, P422,
P424, P426, P427 (under seal), Medical records respectively for Fanjo Toli}, Ai{a Hrustan, D`emal Kukuljac, Igor
Vu~i~evi} and An|a Gotovac.
1814 An|a Gotovac, 3 Apr 2007, T. 4463, P523, p. 2.
1815 Enes Ja{arevi}, 1 Mar 2007, T. 2994 – 2995; D96, Statement by Enes Ja{arevi}, p. 2; D97, Statement by Enes
Ja{arevi}, dated 19 May 2007, p. 2.
168
Case No IT-98-29/1-T 12 December 2007
impact, but he could not see where the bomb landed.1816 However, when asked by the Defence,
Enes Ja{arevi} testified that he did not see where the bomb came from.1817
502. The BiH police was informed of the incident at about 1400 hours that day and an
investigative team was established and sent to the site.1818 The explosion caused a crater 250
centimetres long by 130 centimetres wide and 30 centimetres deep.1819 During cross-examination,
W-116, a forensic technician for the BiH police, explained that the bodies of the victims who were
killed in this incident were transported to a mortuary situated on the other side of the town, and this
explained why someone else from his department took the photos of the bodies of the victims.1820
503. Based on the evidence gathered at the scene and sent to them by the BiH police, W-137 and
other KDZ experts concluded that the projectile was a FAB-250 air bomb, propelled by five 122
mm GRAD rockets.1821 Berko Ze~evi}, in his report, wrote that rocket motors were found in the
crater, along with several metal parts, stabilisers and parts of the fuse.1822 He concluded that it was
“undeniable” that the modified air bomb had three 122 mm GRAD rocket motors, despite the
conflicing opinions in the reports on the incident regarding both the number and calibre of rocket
motors that were found.1823 Berko Ze~evi} noted that in light of the multiple explosions, the features
of the crater, the effect on the house and surrounding buildings, witnesses’ statements that they felt
burning and strong pressure, the smoking house described by a witness and that doors and windows
were knocked out, he could only conclude that the projectile was a “classic case of fuel-air aircraft
bomb.”1824
504. The Defence submitted, in its Final Brief, that there was conflicting evidence regarding the
direction from which the modified air bomb was fired.1825 The Defence identified a translation error
in the BiH police report; in the original version of the report it is said that the “length of the crater
was turned towards the south”, while the translation states that the crater stretches south-east.1826
The Trial Chamber notes that, notwithstanding the error in translation, the report states that the
1816 Enes Ja{arevi}, 1 Mar 2007, T. 2994 – 2995.
1817 Enes Ja{arevi}, 1 Mar 2007, T. 2987, 2994, 3030 – 3031.
1818 P560, P566, Official report, pp 1 – 3 (under seal). See also supra, Section II.D Challenge to the Reliability of the
Investigations by BiH Police and BiH Police Reports.
1819 W-116, P550, p. 3 (under seal); P144, Photographs, pp 6 – 7; P559, KDZ forensic report, p. 1 (under seal).
1820 W-116, 17 Apr 2007, T. 4615, 18 Apr 2007, T. 4634; P562, Photographs (under seal).
1821 W-137, 19 Feb 2007, T. 2472 – 2473; P260, P561, KDZ report, dated 5 June 1994 (under seal); P559, KDZ
forensic report, p. 2 (under seal).
1822 P586, Expert report Berko Ze~evi}, p. 121.
1823 P586, Expert report Berko Ze~evi}, p. 122.
1824 P586, Expert report Berko Ze~evi}, pp 122 – 125.
1825 Defence Final Brief, para. 203.
1826 Defence Final Brief, para. 203. See also W-116, 18 Apr 2007, T. 4685; P560, P566, Official report, p. 1 (under
seal). In P560 the translation error has been corrected.
169
Case No IT-98-29/1-T 12 December 2007
projectile came from the “aggressor postions in the Lukavica area.”1827 W-116 established that the
projectile had come from the south-east, which could be determined from the angle of the funnelshaped
crater.1828 He also observed fragments of the projectile embedded in the asphalt that
indicated this direction. Usually, W-116’s team had ballistic experts to help them determine the
direction of fire but in this specific instance, it was W-116 who did it.1829 He was not entirely
certain that the direction of fire he determined was precise because he was not a ballistic expert.1830
The KDZ report identifies the direction of fire as south-east, which is the Lukavica area, and the
BiH police report mentions Lukavica as the probable origin of the projectile.1831
505. Based on the findings of the investigators, Berko Ze~evi} determined that the azimuth was
155 degrees, with a margin of error of plus or minus five degrees.1832 Berko Ze~evi} found an angle
of descent of 20 degrees and he estimated the launching point to be at a distance of 5,800 metres or
more from the point of impact.1833 His findings are consistent with those of the BiH police.1834
506. W-116 testified, during cross-examination, that the investigators did not look into any
activity or fire coming from @u~ Hill that could have been the cause of damage because the damage
was too extensive to be from mortar or tank shells, which would have given them a reason to
investigate that possibility.1835
Findings
507. The Trial Chamber accepts the conclusions of the KDZ, including those of W-137, and of
Berko Ze~evi}, and finds that a FAB-250 air bomb with fuel-air explosive, propelled by at least
three rockets, hit Safeta Zajke Street on the morning of 24 May 1995. The Trial Chamber is,
therefore, satisfied that the modified air bomb was fired from the SRK-controlled area of Lukavica.
The Trial Chamber further recalls its earlier finding that the ABiH did not have or use modified air
bombs; only the SRK possessed and used them. On the basis of evidence of An|a Gotovac, the BiH
police reports, and medical records, the Trial Chamber is satisfied that two civilians were killed and
five civilians were seriously injured as a result of the explosion of the modified air bomb.
1827 P560, P566, Official report, p. 2 (under seal).
1828 W-116, 18 Apr 2007, T. 4629, P550 (under seal), p. 4; P558, Map marked by W-116; P564, Map marked by W-
116; P559, KDZ forensic report, p. 1 (under seal).
1829 W-116, 18 Apr 2007, T. 4629, 4669 – 4670.
1830 W-116, 18 Apr 2007, T. 4630.
1831 P560, P566, Official report, p. 1 (under seal). Cf. W-116 took a photograph of the crime scene in which one can see
the fragments of the projectile embedded in the ground and showing a south-westerly direction: W-116, 18 Apr 2007,
T. 4686 – 4687; P562, Photographs (under seal).
1832 P586, Expert report Berko Ze~evi}, p. 123.
1833 Berko Ze~evi}, 20 Apr 2007, T. 4856; P586, Expert report Berko Ze~evi}, p. 124.
1834 P586, Expert report Berko Ze~evi}, p. 125.
1835 W-116, 18 Apr 2007, T. 4683 – 4684.
170
Case No IT-98-29/1-T 12 December 2007
508. The Trial Chamber received conflicting evidence about the direction from which the
modified air bomb came. W-116, a police officer but not a ballistic expert, testified that he
determined the direction was south-east. The BiH police report identified the direction of fire as
south, but Lukavica as the probable origin of fire. Berko Ze~evi} concluded that the launching point
was 5,800 metres from the impact point, in a south-easterly direction, in the Lukavica area.
Although there is some inconsistency as to the direction of fire, the evidence of the investigative
reports, including the KDZ report, and Berko Ze~evi}, points to the Lukavica area as the origin of
fire. Furthermore, given both the possible range of the FAB-250 and the likely range of the bomb in
this incident, whether the modified air bomb was fired from south or south-east, the origin of fire
would have been within SRK-held territory in any case.1836 The Trial Chamber is, therefore,
satisfied that the modified air bomb was fired from the SRK-controlled area of Lukavica and that it
was launched by members of the SRK.
(v) Shelling of Majdanska Street on 24 May 1995
509. On 24 May 1995, Enes Ja{arevi} was working as an electrician at the transformer station
near the TV Building, proximate to Novi Grad municipality.1837 That day he was supposed to go to
Vogo{}a but, as a result of heavy shelling in the Sarajevo area and particularly the Novi Grad
muncipality, he did not go.1838
510. At around 1000 hours an air bomb flew over Enes Ja{arevi} and fell somewhere behind the
TV Building.1839 After that “nothing happened and we continued our duty and we were sitting
around our work place.”1840 Sometime after 1300 hours, there was no work left to do and Enes
Ja{arevi} decided to leave. He left the building with Sulejman Prasko, the foreman, who began to
weed the small vegetable patch adjacent to the entrance of the transformer station.1841 Enes
Ja{arevi} waited for a colleague, Salko Slato, with whom he intended to cover part of the journey
home.1842
511. At approximately 1400 hours, Salko Slato arrived and the two men exited through the gates
of the transformer station. Enes Ja{arevi} testified that he heard a sound which he believed to be an
aeroplane, coming from the direction of Mojmilo Hill.1843 He looked around but no aeroplane was
1836 See D59, Military map of Sarajevo area.
1837 Enes Ja{arevi}, 1 Mar 2007, T. 2987; W-116, 18 Apr 2007, T. 4635; P560, P566, Offical report (under seal); P300,
Map marked by Enes Ja{arevi}.
1838 D96, Statement by Enes Ja{arevi}, p. 2; W-116, 18 Apr 2007, T. 4635.
1839 D96, Statement by Enes Ja{arevi}, p. 2; Enes Ja{arevi}, 1 Mar 2007, T. 3030 – 3031.
1840 Enes Ja{arevi}, 1 Mar 2007, T. 2995.
1841 Enes Ja{arevi}, 1 Mar 2007, T. 2995 – 2996.
1842 Enes Ja{arevi}, 1 Mar 2007, T. 2995.
1843 Enes Ja{arevi}, 1 Mar 2007, T. 2995 – 2996, 3026, 3028.
171
Case No IT-98-29/1-T 12 December 2007
visible, even though “the sound was coming closer and closer and becoming stronger and
stronger.”1844
512. Enes Ja{arevi} explained that he saw a dark object hit a pylon inside the compound of the
transformer station and “there was a strong flash”; he fell on his stomach.1845 The pylon that had
been hit by the bomb started to collapse and he thought it was going to collapse on him. However,
an overhead power line prevented this.1846
513. Enes Ja{arevi} testified that, after the pylon collapsed, he turned over and there was
something on his right and left leg and “a kind of contraction in his right arm.”1847 He tried to
remove his leather jacket but he was unable to do so as a piece of shrapnel had attached the sleeve
to his elbow.1848 The entrance gate to the transformer station had been jammed shut and Salko
Slato, who was only slightly injured, tried to jump over the fence in order to see what had happened
to Suljeman Prasko, who was still inside.1849 Enes Ja{arevi} approached the fence and saw the
foreman lying there, his mouth still moving.1850 However, someone told him that Suljeman Prasko
was already dead.1851
514. The Defence presented an ABiH combat report indicating that on that day there was intense
fire by the ABiH resulting in “significant consumption of all types of ammunition.”1852 Enes
Ja{arevi} disagreed with the Defence proposition that the transformer station was a military
headquarters and that it was a legitimate target; he did not agree either that his profession, as an
electrician, implied an obligation to provide for the needs of the ABiH.1853 He testified that he was
not in the ABiH and that “it was just a transformer station with people working there, not wearing
uniforms or anything. We just had our kit, our tools, on us and that was that.”1854 The report of the
BiH police pertaining to the incident noted that the modified air bomb exploded in a populated area
where there were no combat positions of the ABiH nor were there any combat activities being
conducted against the SRK in that area.1855
1844 Enes Ja{arevi}, 1 Mar 2007, T. 2996.
1845 Enes Ja{arevi}, 1 Mar 2007, T. 2996; P303, Photograph marked by Enes Ja{arevi}.
1846 Enes Ja{arevi}, 1 Mar 2007, T. 2996.
1847 Enes Ja{arevi}, 1 Mar 2007, T. 2997.
1848 Enes Ja{arevi}, 1 Mar 2007, T. 2997.
1849 Enes Ja{arevi}, 1 Mar 2007, T. 2997.
1850 Enes Ja{arevi}, 1 Mar 2007, T. 2997 – 2998.
1851 Enes Ja{arevi}, 1 Mar 2007, T. 2998; P429, Death certificate of victim Suljeman Prasko, dated 25 May 1995.
1852 D95, Report by Vahid Karaveli}, 24 May 1995, p. 2.
1853 Enes Ja{arevi}, 1 Mar 2007, T. 3018 – 3019.
1854 Enes Ja{arevi}, 1 Mar 2007, T. 3022 – 3023.
1855 P566, Official report, p. 3 (under seal).
172
Case No IT-98-29/1-T 12 December 2007
515. Enes Ja{arevi} testified that somebody came from the direction of the TV Building and then
a car came along and asked whether there were any casualties.1856 He was put in the car and was
taken to the State Hospital. The criminal investigation file showed that, in total, six civilians,
including Enes Ja{arevi} and Salko Slato were wounded, five of them seriously, and that Sulejman
Prasko and Nezir Huseinovi} were killed.1857
516. The incident was investigated by the BiH police, with members of UNPROFOR being
present.1858 Members of the Novi Grad Police Station had secured the site. W-116 stated the shell
exploded, damaging a high-tension electric tower, a 110-kilowatt transformer and several buildings
within a radius of about 200 metres.1859 The BiH police found a large crater measuring five metres
long by one and a half metres wide and one and a half metres deep.1860 A number of parts of a VBR
rocket were found in and around the crater as well as shrapnel and parts of an aerial bomb.1861
Forensic analysis concluded that the pieces of the projectile collected by the BiH police from the
incident site, “probably belonged to a device made of an FAB-250 M72 contact fuse aircraft bomb
and five 122 mm GRAD type rockets which were used as a power unit.”1862 Evidence was
presented to the Trial Chamber that the effective range of a FAB-250 is 5,820 metres to 7,680
metres.1863
517. The KDZ on-site forensic investigation concluded that the modified air bomb was fired from
the Pavlovac area in the south-east.1864 However, the investigation of the BiH police determined
that the crater made by the modified air bomb faced “south”, indicating that the modified air bomb
and the VBR rockets had been fired from the same place as the earlier bomb that day at Safeta
Zajke Street, namely, Lukavica, where the “aggressor’s firing line is situated”.1865
518. In his report, Berko Ze~evi} commented that “the incoming angle was determined from the
sketch of the place of the incident.” However, “the incident shows the general picture of the
situation at the place of impact, but it does not allow for precise assessment of the incoming angle
of the bomb.”1866 In court, Berko Ze~evi} testified that it was not possible to establish the incoming
1856 Enes Ja{arevi}, 1 Mar 2007, T. 2997 – 2998.
1857 P566, Official report, p. 3 (under seal); P424, Medical report of D`emal Kukuljac (under seal).
1858 P566, Official report, p. 2 (under seal); P302, Colour photographs.
1859 W-116, P550, 11 Mar 1997, p. 4.
1860 P566, Official report, p. 2 (under seal).
1861 P566, Official report, p. 2 (under seal); W-116, P550, p. 4.
1862 P313, KDZ investigation file, dated 24 May 1995, p. 3 (under seal); W-116 testified that “it was probably a
modified air bomb, because not a single projectile of smaller calibre could have produced such huge devastation”, W-
116, 18 Apr 2007, T. 4638. See also P586, Expert report Berko Zeevi, pp 126 – 128.
1863 See infra, para. 95.
1864 P313, KDZ investigation file, p. 1 (under seal); P563, Criminal investigation file, p. 2 (under seal); W-116, 18 Apr
2007, T. 4637, 4689, P550, p. 4; P564, Map marked by W-116.
1865 P566, Official report, pp 1 – 3 (under seal); Enes Ja{arevi}, 1 Mar 2007, T. 3026 – 3028.
1866 P586, Expert report Berko Zeevi, p. 123.
173
Case No IT-98-29/1-T 12 December 2007
angle of the projectile. Nevertheless, taking the shelling of Safeta Zajke Street and Majdanska
Street as incidents that occurred on the same day, within approximately four hours of one another
and bearing in mind the fact that Mojmilo Hill was behind the incident sites, he found it “only
logical” that the launching sites in both cases were similar; consequently the incoming angle was, in
his view, at a minimum of 20 degrees in order to have been able to hit the transformer station. From
this analysis, he concluded that “the location for the launcher has to be at a minimum range of 4,800
metres” and that the launch site would be “within the broader area of Lukavica”.1867
Findings
519. Evidence shows that a bomb exploded on Majdanska Street in the afternoon of 24 May
1995. Enes Ja{arevi} testified to hearing the sound of an aeroplane before a projectile impacted
inside the transformer station and exploded. The BiH investigation file records that the BiH police
found parts of a rocket, shrapnel and parts of an aerial bomb. Similarly, as evidence shows, the
KDZ investigation concluded that the projectile was probably a FAB-250 modified air bomb. The
Trial Chamber is satisfied that the projectile that exploded on Majdanska Street was a FAB-250
modified air bomb.
520. The Trial Chamber heard evidence from Enes Ja{arevi} that he was seriously injured and
that Suljeman Prasko was killed by the explosion. The BiH police report indicated that, along with
Enes Ja{arevi}, five others were injured, including his colleague Salko Slato, and that Nezir
Husinovi} was also killed. Two civilians were killed, and six civilians were injured, five of them
seriously, as a result of the explosion on Majdanska Street.
521. While the KDZ investigation concluded that the direction of fire was south-east and that the
origin of fire was the Pavlovac region, the BiH police and Berko Ze~evi} concluded that the
direction of fire was south, and that the origin of fire was the same as for the shelling incident on
Safeta Zajke Street that took place the same day, that is, Lukavica. Berko Ze~evi} estimated that the
modified air bomb was launched from a minimum distance of 4,800 metres from the incident site.
The Trial Chamber recalls that the areas of Lukavica and Palovac were both controlled by the SRK
and, given both the possible range of the FAB-250 and the likely range of the bomb in this incident,
the origin of fire would have been within SRK-held territory in any case.1868 The Trial Chamber
further recalls its earlier finding that the ABiH did not have or use modified air bombs; only the
SRK possessed and used them. The Trial Chamber finds that the modified air bomb that exploded
1867 Berko Ze~evi}, 20 Apr 2007, T. 4858.
1868 See supra, para. 95.
174
Case No IT-98-29/1-T 12 December 2007
in Majdanska Street originated from SRK-held territory and that it was launched by members of the
SRK.
(vi) Shelling of Safeta Had`i}a Street on 26 May 1995
522. The weather was good on 26 May 1995, in Safeta Had`i}a Street, Novi Grad
Municipality.1869 Safeta Had`i}a Street was a residential area with apartment buildings and offices,
close to the Majdanska Street.1870 W-13 was sitting on the road in front of his apartment
building.1871 There were some 40 to 50 other persons also sitting in front of their apartment
buildings.1872 D`emaludin Luinovi} was standing at the municipal building, about 250 metres from
his home.1873
523. It was a quiet day with no military operation going on in the area.1874 Some offices were
intermittently used by uniformed soldiers.1875 According to D`emaludin Luinovi}, there was no
military unit in this area, but there were people who had been mobilised, some for the army, some
for the police.1876 He, himself, was a reserve policeman, wore a camouflage uniform and carried a
semi-automatic rifle, a pistol and a truncheon.1877 However, D`emaludin Luinovi} denied ever
having used the weapons or having taked part in military activities.1878 In its Final Brief, the
Defence submitted that this incident took place “on the same day as NATO dropped aerial bombs
on Sarajevo.”1879
524. At about 1100 hours, D`emaludin Luinovi} saw “something big”, like a “low-flying
aeroplane”, coming slowly from the direction of Ilid`a.1880 W-13 described a sound that was
different to the usual sound of shells; the sound of “a helicopter flying some 15 metres above the
1869 W-13, 5 Apr 2007, T. 4535.
1870 W-138, 31 Jan 2007, T. 1323. D`emaludin Luinovi} testified that there were no mortars or any heavy weapons in
the area and that the nearest ABiH soldiers were around three kilometres away and the nearest frontline was in Ne|ari}i,
at around 4.5 kilometres distance. Having consulted a map, the Trial Chamber doubts the latter distance and rather
considers it closer. D`emaludin Luinovi} also testified that the closest military establishment was the Ramiz Sal~in
barracks, which was approximately one kilometre away: D`emaludin Luinovi}, 28 Feb 2007, T. 2951, 2952 – 2953,
2957 – 2958, 1 Mar 2007, T. 2963, P298, p. 3. The Trial Chamber notes that W-138 also referred to Majdanska Street,
but that at the time of the incident the entire area was called Safeta Had`i}a Street, W-138, 31 Jan 2007, T. 1307, 1322.
1871 W-13, 5 Apr 2007, T. 4535.
1872 W-13, 5 Apr 2007, T. 4535, P535, p. 3 (under seal).
1873 D`emaludin Luinovi}, 28 Feb 2007, T. 2946, 1 Mar 2007, T. 2962, P297, p. 2, P298, p. 2.
1874 W-138, 1 Feb 2007, T. 1359 – 1360; W-13, 5 Apr 2007, T. 4535.
1875 W-138, 31 Jan 2007, T. 1323; P146, Map marked by W-138.
1876 D`emaludin Luinovi}, 28 Feb 2007, T. 2950 – 2951.
1877 D`emaludin Luinovi}, 28 Feb 2007, T. 2944, 2946, 2955 – 2956, P297, p. 2.
1878 D`emaludin Luinovi}, 28 Feb 2007, T. 2956, 1 Mar 2007, T. 2962; D`emaludin Luinovi} further denied the
Defence suggestion that his private workshop was used to camouflage mortars during the war, D`emaludin Luinovi}, 1
Mar 2007, T. 2975. However, the workshop was used by the ABiH during the war, D`emaludin Luinovi}, P297, p. 2.
1879 Defence Final Brief, fn. 446.
1880 D`emaludin Luinovi}, 28 Feb 2007, T. 2944, 2946 – 2947, 2950, 1 Mar 2007, T. 2965, 2970 – 2971, P297, p. 2,
P298, p. 2; P299, Photograph marked by D`emaludin Luinovi}. See also W-13, P535, p. 3 (under seal); P799, Official
175
Case No IT-98-29/1-T 12 December 2007
buildings very low.”1881 According to W-138, seconds later, the area was hit by ten shells and a
modified air bomb.1882 The modified air bomb hit the roof of Safeta Had`i}a Street, number 52,
destroying four apartments on the fifth floor and two on the fourth floor, while seriously damaging
two apartments on the third floor.1883
525. Not all of the multiple shells fired at Safeta Had`i}a Street on 26 May 1995 exploded.1884
One shell hit the tarmac without exploding, ricocheted and then hit the house at Majdanska Street
8-b, causing a hole of two metres by two metres.1885 Another unexploded shell landed in front of the
north-west wall in the yard of Safeta Had`i}a Street, number 70, causing a 200 centimetre by 80
centimetre by 35 centimetre crater.1886 Another shell hit the south-west wall of Safeta Had`i}a
Street, number 102.1887 Compared to the considerable damage caused by the modified projectile, the
damage here was much less.1888 Another crater caused by an artillery explosion, was found in the
yard between building numbers 110 and 102.1889 The next shell hit and destroyed a car, parked
behind building number 110.1890 Further, one crater was found in the yard of the D`emaludin
Mu{ovi} elementary school, another crater on the asphalt playground of the school and a third
crater was found between the school and Safeta Had`i}a Street, number 102.1891 Other buildings hit
by shells were buildings number 110, where the projectile tore through the flat concrete roof and
damaged one apartment on the fifth floor, and number 143, where the projectile caused material
damage when it hit the roof.1892 Furthermore, the window panes of buildings numbered 100, 102,
report and note, p. 2 (under seal); P586, Expert report Berko Zeevi, p. 129. Cf. P143, Report of on-site investigation,
dated 26 May 1995, p. 1 (under seal).
1881 W-13, 5 Apr 2007, T. 4537, P535, p. 3 (under seal); D33, Statement of W-138, dated 24 April 2006, p. 2 (under
seal).
1882 W-138, 31 Jan 2007, T. 1307, 1 Feb 2007, T. 1359; P146, Map marked by W-138. See also P143, Investigation
report, p. 1 (under seal); P299, Photograph marked by D`emaludin Luinovi}; P799, Official report and note, pp 1, 11
(under seal); D`emaludin Luinovi}, 28 Feb 2007, T. 2944, 2947, 2948 – 2949, 2972, 1 Mar 2007, T. 2965, P297, p. 2,
P298, p. 3.
1883 W-138, 31 Jan 2007, T. 1310 – 1311, 1314 – 1315; P144, Photographs of shelling, pp 14 – 15; D`emaludin
Luinovi}, 1 Mar 2007, T. 2969; Berko Ze~evi}, 23 Apr 2007, T. 4952; P586, Expert report Berko Zeevi, p. 129;
P143, Investigation report, p. 1 (under seal); P145, Analyses of projectile traces, dated 19 June 1995, p. 1, confirmed by
Ekrem Suljevi} in P311, dated 10 March 1997, p. 2; P799, Official report and note, pp 2, 11 (under seal); W-13, P535,
p. 3 (under seal).
1884 P143, Investigation report, p. 1 (under seal). Cf. D`emaludin Luinovi} testified that all shells exploded, D`emaludin
Luinovi}, 1 Mar 2007, T. 2983.
1885 D`emaludin Luinovi}, 28 Feb 2007, T. 2949, 1 Mar 2007, T. 2973, 2983, P297, p. 2, P298, p. 3; W-138, 31 Jan
2007, T. 1307 – 1308, 1314, 1 Feb 2007, T. 1360; P143, Investigation report, p. 1 (under seal). See also, P144,
Photographs, p. 12; P799, Official report and note, pp 2, 12 (under seal). The Trial Chamber notes that according to the
official report of the KDZ the projectile exploded when it hit the house, P799, Official report and note, p. 2 (under seal).
1886 W-138, 31 Jan 2007, T. 1314, P144, p. 9; P799, Official report and note, pp 2, 11 (under seal).
1887 W-138, 31 Jan 2007, T. 1310, P144, p. 5; P799, Official report and note, p. 1 (under seal).
1888 W-138, 31 Jan 2007, T. 1311; P799, Official report and note, p. 1 (under seal).
1889 P799, Official report and note, pp 1, 11 (under seal).
1890 W-138, 31 Jan 2007, T. 1312, P144, pp 3 – 4. The Trial Chamber notes that the car was, according to the official
report and the official note of the KDZ, parked behind building number 102, Safeta Had`i}a Street: P799, Official
report and note, pp 1, 11 (under seal).
1891 W-138, 31 Jan 2007, T. 1312 – 1313, P144, pp 6 – 8; P799, Official report and note, pp 1 – 2, 11 (under seal).
1892 P799, Official report and note, pp 2, 12 (under seal).
176
Case No IT-98-29/1-T 12 December 2007
108 and 110 broke.1893 In cross-examination, D`emaludin Luinovi} confirmed a report that there
were no civilian casualties resulting from the attack with smaller shells that followed the big
one.1894
526. After the powerful explosion, the persons on the road took cover in nearby buildings.1895
D`emaludin Luinovi} described the moments after the impact as “there was so much dust in the air
and bits of concrete flying all over the place; mortar off the walls; doors and windows smashed; bits
flying through the air. There was rubble strewn all across the road”, and it was difficult to see.1896
W-13 and his daughter were injured; W-13 was taken to Ko{evo Hospital in a private car.1897
527. D`emaludin Luinovi} ran back to his house, which was opposite the building hit by the
modified air bomb, and watched the site from his front yard with his father.1898 He saw injured
persons but, in cross-examination said he did not see a body being carried out of the building.1899
Among the injured persons, several had been injured in the neighbouring building, number 46, and
some in the entrance hall of number 48.1900
528. There is some contradictory evidence as to the number of people injured in this incident.
The Prosecution alleged that two persons were seriously injured and 15 were slightly injured.1901
Medical records confirm four injured persons, one of them seriously.1902 An official note by the
KDZ, dated 26 May 1995, mentions two persons as seriously wounded.1903 This note also lists
fourteen slightly injured persons.1904 A report by the KDZ, dated 1 June 1995, lists two seriously
wounded, the same as in the official note, and 15 slightly injured persons.1905 There is one person in
the official note listed as injured who does not appear in the KDZ report and there are two persons
1893 P799, Official report and note, p. 1 (under seal).
1894 D`emaludin Luinovi}, 1 Mar 2007, T. 2970. See also P799, Official report and note, p. 7 (under seal).
1895 W-13, 5 Apr 2007, T. 4534; D`emaludin Luinovi}, 1 Mar 2007, T. 2965, 2971, P298, p. 2.
1896 D`emaludin Luinovi}, 28 Feb 2007, T. 2948, 1 Mar 2007, T. 2965. See also W-13, P535, p. 3 (under seal).
1897 W-13, 5 Apr 2007, T. 4533, 4538, P535, p. 3 (under seal).
1898 D`emaludin Luinovi}, 28 Feb 2007, T. 2948.
1899 D`emaludin Luinovi}, 1 Mar 2007, 2969 – 2970. Two men were injured when they fell in a hole because they did
not notice that the metal cover had been blown off: W-13, P535, p. 3 (under seal). See also, W-138, 31 Jan 2007, T.
1308; W-13, 5 Apr 2007, T. 4536 – 4537; P799, Official report and note, p. 1 (under seal).
1900 P799, Official report and note, pp 3, 11 (under seal).
1901 Indictment, Second Schedule.
1902 P430, P431, P433, Medical records (under seal).
1903 P799, Official report and note, p. 11 (under seal). One of the two seriously injured victims stayed 18 days in
Sarajevo State Hospital, P431, Medical record (under seal). See also, P586, Expert report Berko Zeevi, p. 129.
1904 P799, Official report and note, p. 11 (under seal).
1905 P799, Official report and note, p. 3 (under seal). See also, P586, Expert report Berko Ze~evi}, p. 129; P433, Medical
record (under seal). According to the medical record, two victims sustained severe injuries and were released for
treatment at home. Another victim stayed 14 days in hospital.
177
Case No IT-98-29/1-T 12 December 2007
in the report who are not listed in the official note.1906 However, one of the latter two is also
mentioned in Berko Zeevi’s expert report as “bleeding from the lungs.”1907
529. According to a KDZ report, the smaller projectiles were 90 mm armour-piercing explosive
artillery projectiles.1908 The investigation conducted by the KDZ into the incident concluded that the
projectile was “probably a … contact fuse high explosive shell in 88 mm calibre” and that “this
type of projectile is rather old and was a part of the former JNA weaponry.”1909 In an analysis of
projectile traces by the KDZ, the large bomb was described as “the remains of a modified aircraft
bomb made of several GRAD-type 122 mm rocket projectiles.”1910
530. With regard to the direction from which the modified air bomb had come, a number of
witnesses referred to the West and, in particular, the Ilid`a-Rajlovac area.1911 One KDZ report refers
to positions in the west as the direction of fire of the shells and to Lukavica in the south as the
launching point for the modified air bomb.1912 Prosecution expert Berko Ze~evi} stated that the
shells had come from the direction of Lukavica, but that the modified air bomb had come from the
Ilid`a-Rajlovac direction.1913 He emphasised the “good synchronisation of SRK units in Ilid`a and
Lukavica.”1914 In calculating the angle of descent, Berko Ze~evi} came to the conclusion that the
modified air bomb was launched from a minimum distance of around 5,800 metres, which
corresponds to the wider area of Butila, located between Rajlovac and Ilid`a.1915
Findings
531. The Trial Chamber accepts the testimony of witnesses that they had heard a sound like an
aeroplane, that there was a very large explosion and extensive damage. The Trial Chamber also had
investigative reports and the report of Berko Ze~evi}. The Trial Chamber is satisfied that after the
explosion of the modified air bomb, a number of shells landed on Safeta Had`i}a Street; some of
1906 P799, Official report and note, pp 3, 11 (under seal).
1907 P586, Expert report Berko Zeevi, p. 129.
1908 P799, Official report and note, p. 2 (under seal). W-138 noticed on this shell some “Nazi symbols” like the
swastika, a symbol with wings and a serial number engraved by a machine, W-138, 31 Jan 2007, T. 1308, 1 Feb 2007,
T. 1359, 1360, 1362 – 1363; P143, Investigation report, p. 1 (under seal). Confronted by the Defence, W-138 denied
that he brought the unexploded projectile with the “Nazi symbols” to the site to use it for propaganda purposes against
the Serbs, W-138, 1 Feb 2007, T. 1362.
1909 P799, Official report and note, p. 8 (under seal).
1910 P145, Analyses of projectile traces, 19 June 1995, p. 3. See also, P586, Expert report Berko Zeevi, pp 129 – 130;
P799, Official report and note, p. 2 (under seal).
1911 D`emaludin Luinovi}, 28 Feb 2007, T. 2944, 2949 – 2950, 1 Mar 2007, T. 2971, P297, p. 2, P298, p. 2; P299,
Photograph marked by D`emaludin Luinovi}; P143, Investigation report, p. 1 (under seal); D32, Statement of W-138, p.
2 (under seal); P145, Analyses of projectile traces, p. 1. See also, P586, Expert report Berko Zeevi, p. 129.
1912 P799, Official report and note, p. 3 (under seal).
1913 P586, Expert report Berko Zeevi, pp 129 – 130.
1914 P586, Expert report Berko Zeevi, p. 129. See also, Thorbjorn Overgard, 18 Jan 2007, T. 640.
1915 P586, Expert report Berko Zeevi, pp 131 – 132.
178
Case No IT-98-29/1-T 12 December 2007
them exploded. The Trial Chamber finds that it was a modified air bomb that hit Safeta Had`i}a
Street on 26 May 1995. The Trial Chamber also recalls its earlier finding that the ABiH did not
have or use modified air bombs; only the SRK possessed and used them.
532. The Trial Chamber is satisfied that, on the basis of the investigative reports and the
conclusions of Berko Ze~evi}, at least 14 persons were slightly injured and two persons were
seriously injured as a result of this shelling. These persons were all civilians.
533. Most of the evidence pertaining to the direction from which the modified air bomb came
indicates that the direction was the Ilid`a-Rajlovac area, that is, north-west of Safeta Had`i}a Street.
The Trial Chamber notes that a single KDZ report states the direction was south. Even if the
direction of fire was south, that would still be within an area under the control of the SRK. The
Trial Chamber is satisfied that the modified air bomb was fired from the area of Ilid`a-Rajlovac,
which was SRK-held territory and that it was launched by members of the SRK.
(vii) Shelling of the UMC and Oncology Department, Dositejeva, on 16 June 1995
534. No witness evidence was led in respect of this shelling incident. However, the incident is the
subject of police reports, which were authenticated by Ekrem Suljevi}, a member of the KDZ.1916
Berko Ze~evi} also discussed this incident in his report.
535. On the morning of 16 June 1995, an explosion occurred at the University Medical Centre
(“UMC”), Department of Radiology and Oncology, at Dositejeva Street, number 4a.1917 As a result
of the explosion, three people were slightly injured; the buildings of five companies and some
apartments situated in the vicinity of the UMC were destroyed.1918
536. An investigation into the explosion was conducted by the BiH police, the next day, on 17
June 1995, during which multiple fragments of rockets were found in the UMC building.1919 The
investigation concluded that a modified air bomb had hit the roof of the UMC; it had exploded on
the window frame of a toilet on the first floor of the building.1920 Berko Ze~evi} agreed with the
1916 Ekrem Suljevi}, 2 Mar 2007, T. 3099 – 3101.
1917 P321, Forensic report, dated 17 June 1995; P324, Report by KDZ, dated 19 June 1995, stating that the explosion
occurred at around 1105 hours; P217, Official report, dated 17 June 1995.
1918 P321, Forensic report, p. 1; P217, Official report, p. 1; P323, Photographs; P586, Expert report Berko Ze~evi}, p.
134. The Trial Chamber notes that in P324, Report by KDZ, it is reported that four people were injured. However, that
report, unlike the other two reports, P321 and P217, does not list the names of the people who were injured.
1919 P321, Forensic report, p. 2; P323, Photographs; P324, Report by KDZ, pp 1, 4 – 5; P217, Official report, p. 1.
1920 P321, Forensic report, p. 1; P324, Report by KDZ, p. 5.
179
Case No IT-98-29/1-T 12 December 2007
BiH investigators that the explosive device was a modified air bomb.1921 He also agreed that the
bomb exploded “inside the first floor”.1922
537. The investigation also concluded that the azimuth was north-west, at 348 degrees, plus or
minus ten degrees.1923 The KDZ later determined, as a result of its investigation, that the modified
air bomb had been fired from “enemy positions” in the surrounding area of Pionirska Dolina.1924
Berko Ze~evi} disagreed with their determination on the azimuth, saying that it was “unacceptable,
because the investigators did not define the method they used to determine the incoming angle with
such precision.”1925 He noted that if the azimuth of the BiH police were to be accepted, this would
place the possible launch site “deep in the canyon within the Pretis Factory in Vogo{}a.”1926 Based
on his analysis of the shelling incident on ^obanija Street, which showed that another modified air
bomb came from the direction of the Pretis Factory and struck that street, as well as based on an
analysis of the surrounding terrain, he determined that the direction of fire was 315 degrees, plus or
minus ten degrees, placing the launch site at a distance of 5,820 metres from the impact site and
inside the compound of the Pretis Factory.1927
Findings
538. On 16 June 1995, a projectile exploded at the UMC. On the basis of the BiH police reports
and Berko Ze~evi}’s report, the Trial Chamber is satisfied that the projectile was a modified air
bomb. The Trial Chamber also recalls its earlier finding that the ABiH did not have or use modified
air bombs; only the SRK possessed and used them. On the basis of the police reports and
photographs, the Trial Chamber finds that three or four civilians were injured as a result of the
explosion, and that some surrounding buildings were destroyed.
539. The evidence regarding the direction and origin of fire is inconsistent. While the BiH police
put the direction of fire at almost north, Berko Ze~evi}, after dismissing this determination,
concluded that the direction of fire was closer to north-west. Although the direction from where the
bomb came was not established with any certainty, in light of Berko Ze~evi}’s evidence that it was
fired almost six kilometres from the impact site, the Trial Chamber is satisfied that the modified air
1921 P586, Expert report Berko Ze~evi}, p. 134.
1922 P586, Expert report Berko Ze~evi}, p. 134.
1923 P321, Forensic report, p. 1; P322, Investigation file, dated 17 June 1995 (“Investigation file”), p. 1; P324, Report by
KDZ, pp 1, 4.
1924 P324, Report by KDZ, p. 5.
1925 P586, Expert report Berko Ze~evi}, p. 134.
1926 P586, Expert report Berko Ze~evi}, p. 135.
1927 P586, Expert report Berko Ze~evi}, p. 135.
180
Case No IT-98-29/1-T 12 December 2007
bomb was fired from outside the confrontation lines and within SRK-held territory and that it was
launched by members of the SRK.
540. The Trial Chamber notes the submission in the Defence Final Brief that there was an ABiH
offensive at the time of the incident and that all along the confrontation lines it was “very intense”.
It understands this submission to mean that the intensity of the offensive somehow absolves the
SRK of criminal liability for the use of modified air bombs on this day. The Trial Chamber rejects
this submission and stresses that there was nothing in the circumstances in which the modified air
bomb was launched that would absolve the Accused of liability, should the Trial Chamber
determine that the SRK forces responsible for the launch were under his control and command.
(viii) Shelling of Trg Me|unarodnog Prijateljstva on 16 June 1995
541. On 16 June 1995, there was fine weather and good visibility.1928 That day, W-107, a
homemaker, was in the local commune centre in Alipa{ino Polje, along with four men.1929
542. Trg Me|unarodnog Prijateljstva, number 10, was located in a residential area, in Alipa{ino
Polje, and across the street from the PTT Building, where UNPROFOR Sector Sarajevo
Headquarters was based.1930 The headquarters of the civil defence was located in Trg
Me|unarodnog Prijateljstva, number 10.1931 According to W-107, the civil defence was a civilian
institution.1932 Humanitarian aid was delivered to the headquarters and civil defence personnel
distributed medicines, firewood and food to the civilian population.1933 Humanitarian organisations,
including the Red Cross, came there. No soldiers assisted the civil defence, nor were they present in
its facilities.1934 There was no military installation or facility in the vicinity.1935 In response to
questions by the Defence, W-107 testified she had worked for the Territorial Defence (“TO”).1936
However, W-107 testified that she was not employed by the TO nor did she have a salary or
medical insurance.1937 She understood the TO to be the same as civil protection.1938 W-107 further
1928 D116, Statement by W-107, p. 2 (under seal).
1929 D116, Statement by W-107, p. 2 (under seal).
1930 W-116, P550, p. 3 (under seal); W-107, 12 Mar 2007, T. 3508, 3545. See also supra, para. 32.
1931 W-107, 12 Mar 2007, T. 3509.
1932 W-107, 12 Mar 2007, T. 3509, 3513 – 3514, 3545, 3546.
1933 W-107, 12 Mar 2007, T. 3509, 3515, 3523 – 3524.
1934 W-107, 12 Mar 2007, T. 3514 – 3515.
1935 W-107, 12 Mar 2007, T. 3515.
1936 W-107, 12 Mar 2007, T. 3522; D115, Statement by W-107, dated 12 March 1997 (“Statement by W-107”), p. 2
(under seal).
1937 W-107, 12 Mar 2007, T. 3522 – 3523.
1938 W-107, 12 Mar 2007, T. 3522.
181
Case No IT-98-29/1-T 12 December 2007
testified that it was the TO which was attached to the municipal centre, where she sometimes went
to deliver letters.1939
543. During the day of 16 June 1995, there was sporadic shooting and sniping in Alipa{ino
Polje.1940 The Defence submitted that the incident took place on the day the ABiH launched “an
offensive on all fronts against the SRK.”1941
544. Between 1520 and 1530 hours, W-107 heard a sound “like an aeroplane flying through the
room.”1942 The sound was “loud and strong.”1943 Moments later, an explosion occurred
approximately 10 to 15 metres from the local community centre.1944 According to W-107, the bomb
fell in the meadow on the edge of an asphalt path next to one of the entrances to the local commune
centre.1945 The entrance was at the backside of the lower of two high-rise buildings.1946
545. As a result of the explosion, everyone in the room was thrown into the air and to different
corners of the room.1947 There was debris everywhere.1948 W-107 fell onto a large table and then
against the wall, a distance of approximately ten metres.1949 She had scratches on the right side of
her body and was “all swollen.”1950 Afterwards, she felt “some pain” in her liver and lungs and a
buzzing noise in her ears for about one month.1951 She could not hear properly for about one year
and suffered from headaches after the incident.1952 In total, seven people were slightly injured.1953
546. Immediately after the blast, the injured people were taken by civil defence workers to a
shelter, which was located approximately ten metres around the corner from the local commune
centre.1954 W-107 stayed in the shelter for three to five days.1955 W-107 testified that all she recalled
1939 W-107, 12 Mar 2007, T. 3522, 3524. The Trial Chamber notes that the municipal centre of the TO was not identical
to the local commune centre.
1940 D116, Statement by W-107, p. 2 (under seal).
1941 Defence Final Brief, para. 206.
1942 W-107, 12 Mar 2007, T. 3513, 3516; D116, Statement by W-107, p. 2 (under seal).
1943 D116, Statement by W-107, p. 2 (under seal).
1944 W-116, 18 Apr 2007, T. 4645, P550, p. 3 (under seal); W-107, 12 Mar 2007, T. 3513, 3514; Berko Ze~evi}, 23 Apr
2007, T. 4960 – 4961.
1945 W-107, 12 Mar 2007, T. 3519, 3535; P354, Photograph marked by W-107.
1946 W-107, 12 Mar 2007, T. 3538, 3543; P354, Photograph marked by W-107.
1947 W-107, 12 Mar 2007, T. 3513, 3516.
1948 W-107, 12 Mar 2007, T. 3517.
1949 D116, Statement by W-107, p. 2 (under seal).
1950 W-107, 12 Mar 2007, T. 3516.
1951 D115, Statement by W-107, p. 2 (under seal).
1952 D116, Statement by W-107, p. 2 (under seal).
1953 W-116, 18 Apr 2007, T. 4645; P567, Official note, dated 16 June 1995, p. 1 (under seal); P568, On-site
investigation report, dated 26 June 1995, p. 1 (under seal).
1954 W-107, 12 Mar 2007, T. 3517.
1955 W-107, 12 Mar 2007, T. 3516.
182
Case No IT-98-29/1-T 12 December 2007
was the screaming and moaning of many people around her in the shelter, among them children and
small babies.1956
547. The blast destroyed the room of the local commune centre completely and only the exterior
walls remained.1957 “Substantial material damage” was inflicted on the surrounding buildings.1958
Windows and balconies were damaged.1959 According to a witness, if a projectile of such a
devastating and destructive power had hit the building directly, it would have demolished it
completely.1960
548. Due to the heavy shelling, BiH police were only able to investigate the incident ten days
later, on 26 June 1995.1961 According to the investigative team’s report, the scene of the incident
had been altered.1962 In its Final Brief, the Defence submited that this delay in carrying out the
investigation “is why everything in the Bosnian police report stems from the policeman’s
imagination.”1963
549. The official note states that the explosion caused a crater 1100 centimetres long, 780
centimetres wide and approximately 250 centimetres deep.1964 W-116 testified that the “huge
funnel-shaped crater” pointed in the direction of Lukavica, which is situated south-east from
Alipa{ino Polje.1965 The official note on the incident stated that the modified air bomb was “fired
probably from the aggressor’s positions in or near Lukavica.”1966 In response to questions by the
Defence, W-107 said that the area of Mojmilo Hill is located between Alipa{ino Polje and
Lukavica.1967 That area was occupied primarily by the ABiH.1968
550. However, the KDZ report on the on-site investigation stated that the projectile, “probably a
modified air bomb with four inbuilt rocket engines”, “came from the direction of the aggressor’s
positions in the west.”1969 In an earlier statement, W-116 identified the direction from which the
bomb had come as the west, although, as noted above, W-116 testified that the direction was south-
1956 W-107, 12 Mar 2007, T. 3516 – 3517.
1957 W-107, 12 Mar 2007, T. 3517; D116, Statement by W-107, p. 2 (under seal).
1958 W-116, 18 Apr 2007, T. 4645; W-116, P550, p. 3 (under seal).
1959 D116, Statement by W-107, p. 3 (under seal).
1960 W-116, 18 Apr 2007, T. 4647.
1961 W-116, 18 Apr 2007, T. 4674 – 4675; P567, Official note, p. 1 (under seal), also tendered as P353.
1962 P567, Official note, p. 1 (under seal).
1963 Defence Final Brief, para. 206.
1964 P567, Official note, p. 1 (under seal); P568, On-site investigation report, p. 1 (under seal); W-116, P550, p. 3 (under
seal); The Trial Chamber notes that the date on the first page of the report says 16 June 1995. However the content of
the report indicates that it was written on or after 26 June 1995.
1965 W-116, 18 Apr 2007, T. 4678; D167, Map marked by W-116.
1966 W-116, 18 Apr 2007, T. 4678; P567, Official note, p. 1 (under seal).
1967 W-107, 12 Mar 2007, T. 3540.
1968 See supra, paras 121 - 122.
1969 P568, On-site investigation report, p. 1 (under seal).
183
Case No IT-98-29/1-T 12 December 2007
east. In his statement, W-116 noted that ballistics experts had also concluded that the projectile
came from the west.1970 Berko Ze~evi} agreed with this conclusion, on the basis of his analysis of
the incident.1971 He determined that the approximate range from where the projectile came was
5,000 metres, the broader area of Butila.1972
Findings
551. The Trial Chamber notes W-107’s testimony that she heard the sound of an aeroplane before
the explosion and the evidence of the extensive damage caused to the area around the impact site.
Furthermore, the BiH police and Berko Ze~evi} determined that the projectile was a modified air
bomb. W-116’s testimony and the BiH police on-site investigation report show that the explosion of
the projectile injured seven civilians, including W-107. W-107 suffered serious injuries. On the
basis of the evidence, the Trial Chamber finds that the projectile that exploded was a modified air
bomb and that the explosion injured seven people. The Trial Chamber also recalls its earlier finding
that the ABiH did not have or use modified air bombs; only the SRK possessed and used them.
552. With regard to the direction of fire, the Trial Chamber notes that both areas identified by the
BiH police and Berko Ze~evi}, to the south-east and to the west of the incident site, were, in any
event, occupied by the SRK. The Defence elicited evidence in cross-examination that the area of
Mojmilo Hill, which was occupied primarily by the ABiH, lies between the point of impact and the
south-easterly direction, which one witness testified was the origin of fire. No evidence was led by
the Defence that the modified air bomb came from a position under the control of the ABiH. On the
basis of the evidence in its totality, in particular, Berko Ze~evi}’s evidence that the projectile was
launched from an approximate range of 5,000 metres, and that, in any event, the areas identified by
the BiH police and Berko Ze~evi} were both occupied by the SRK, the Trial Chamber is satisfied
that this modified air bomb was fired from a position under the control of the SRK and that it was
launched by members of the SRK.
553. The Trial Chamber recalls that it already rejected the Defence submission relating to the
intensity of the conflict on 16 June 1995.
1970 W-116, P550, p. 3 (under seal); P569, dated 26 June 1995 (“On-site sketch”), p. 2 (under seal).
1971 Berko Ze~evi}, 20 Apr 2007, T. 4858 – 4859. In establishing the minimum angle at which the modified air bomb
was fired, Berko Ze~evi} considered the conditions of the surroundings and of the immediate neighbourhood, in
particular the height of the buildings next to the impact site, ibid.
1972 Berko Ze~evi}, 20 Apr 2007, T. 4859; P586, Expert report Berko Ze~evi}, pp 137, 149 – 150. Additionally, Berko
Zeevi emphasised that modified air bomb launchers were mounted on trucks. Therefore, the launching site also
184
Case No IT-98-29/1-T 12 December 2007
(ix) Shelling of ^obanija Street on 16 June 1995
554. At around 1710 hours on 16 June 1995, in the Centar Muncipality, a projectile struck a
boiler room on ^obanija Street, number 7, causing damage to the building in which the boiler was
located and wounding a number of persons.1973
555. According to Bogdan Vidovi}, a member of the KDZ, ^obanija Street was residential and
the nearest military target was in Bistrik where UNPROFOR was stationed.1974 He did not hear of
the presence of any soldiers at ^obanija Street at the time the projectile struck.1975
556. Bogdan Vidovi} testified that three people were injured in the explosion.1976 Similarly, the
BiH police investigation file named three people who were injured.1977 The KDZ report on the
incident stated that five people were injured, although the names of these people are not
provided.1978 Furthermore, the Trial Chamber received the medical records of only two persons,
who lived at ^obanija Street, number 9a; one person was wounded in the right eye, while the other
sustained an injury to her left ear, a broken arm and suffered from a headache and vomiting.1979 The
Trial Chamber notes that according to the photograph file it is not clear where the victims were
when they were wounded.1980 However, these two people were mentioned in the BiH police
investigation file.
557. Bogdan Vidovi} recalled that witnesses reported that they had heard a sound “like a lorry
flying through the air.”1981 During the investigation, the scene was photographed and pieces of the
projectile were collected for analysis. The BiH police investigators and the KDZ investigators
determined that a FAB-250 air bomb had been used.1982 Berko Ze~evi} confirmed in his report that
the projectile had been a modified air bomb, filled with a fuel-air mixture.1983
depends on the availability and accessibility of roads in the area. He took these factors into consideration in determining
the possible position of firing, Berko Ze~evi}, 20 Apr 2007, T. 4859.
1973 P213, Investigation file, dated 17 June 1995, p. 1; P215, KDZ investigation file, dated 17 June 1995, p. 1; P216,
Photographs; P217, Official report, 17 June 1995, p. 2.
1974 P214, Map marked by Bogdan Vidovi}; Bogdan Vidovi}, 14 Feb 2007, T. 2087.
1975 Bogdan Vidovi}, 14 Feb 2007, T. 2087.
1976 Bogdan Vidovi}, 14 Feb 2007, T. 2085. In cross-examination, he confirmed this number of wounded, Bogdan
Vidovi}, 14 Feb 2007, T. 2108.
1977 P217, Official report, 17 June 1995, p. 1.
1978 P215, KDZ investigation file. See also, P586, Expert report Berko Ze~evi}, p. 139.
1979 P218, Medical records, pp 2 – 3, 7 – 8.
1980 P216, Photographs, p. 1.
1981 Bogdan Vidovi}, 14 Feb 2007, T. 2084.
1982 Bogdan Vidovi}, 14 Feb 2007, T. 2083; P213, Investigation file, p. 1; P215, KDZ investigation file, p. 2.
1983 P586, Expert report Berko Ze~evi}, p. 141.
185
Case No IT-98-29/1-T 12 December 2007
558. The BiH police investigators concluded, based on the point of impact in the boiler room,
that the modified air bomb came from a north-easterly direction.1984 However, in a police report
summarising all the investigations conducted on 16 June 1995 and the KDZ report, the direction
indicated was north-west.1985 According to Bogdan Vidovi}, this aggregate police report was
drafted for police purposes and should reflect the content of the investigative reports for that
day.1986 He testified that if the modified air bomb had come from the north-west, it would have
struck a different building.1987 However, he acknowledged that the member of the bomb squad
made a determination on the direction of fire.1988
559. Based on his finding that the boiler room was the point of impact and the height of the
building opposite that point, Berko Ze~evi} determined a minimum angle of descent of
approximately 25 degrees.1989 This enabled him to look at the surrounding areas, at a distance that
would allow for the calculated angle of descent. He found that the only broader area from which the
modified air bomb could have been fired was the area around the compound of the Pretis Factory,
to the north-west of ^obanija Street.1990 In his report, he noted that this finding is further supported
by the findings on the shelling of the UMC Oncology Department in Dositejeva Street, number 4,
which was shelled on the same day.1991
Findings
560. On the basis of the evidence presented, the Trial Chamber finds that the projectile that
exploded on ^obanija Street in the evening of 16 June 1995 was a modified air bomb. The Trial
Chamber is also satisfied, on the basis of witness testimony, the BiH police and KDZ reports, and
the medical records presented to it, that at least three civilians were injured, two of whom seriously,
as a result of the explosion of the modified air bomb.
561. There is conflicting evidence regarding the direction of fire. The BiH police report and the
testimony of Bogdan Vidovi} point to north-east as the direction from which the modified air bomb
came. However, the KDZ and Berko Ze~evi} concluded that it came from the north-west. The Trial
1984 Bogdan Vidovi}, 14 Feb 2007, T. 2080, 2083, 2099; P213, Investigation file, p. 1; P221, Map marked by Bogdan
Vidovi}. The Trial Chamber notes that the English translation of P213 lists north-west as the direction of fire. Bogdan
Vidovi}, the interpreters in the courtroom and the Defence confirmed that this was a mistake in translation, Bogdan
Vidovi}, 14 Feb 2007, T. 2080 – 2081, 2082.
1985 P217, Official report, p. 2; P215, KDZ investigation file, p. 2.
1986 Bogdan Vidovi}, 14 Feb 2007, T. 2097 – 2099, 2102.
1987 Bogdan Vidovi}, 14 Feb 2007, T. 2098.
1988 Bogdan Vidovi}, 14 Feb 2007, T. 2098. The Trial Chamber notes that the bomb squad member was a member of
the KDZ, see supra, para. 175 and 180.
1989 Berko Ze~evi}, 20 Apr 2007, T. 4860 – 4861; P586, Expert report Berko Ze~evi}, p. 141.
1990 Berko Ze~evi}, 20 Apr 2007, T. 4861; P586, Expert report Berko Ze~evi}, pp 141 – 142.
186
Case No IT-98-29/1-T 12 December 2007
Chamber recalls the range of a FAB-250 as 5,820 metres to 7,680 metres. With regard to this
incident, and with reference to the 16 June 1995 shelling incident at the UMC Oncology
Department in Dositejeva Street, number 4, Berko Ze~evi} concluded that a modified air bomb
fired from the Pretis Factory at a range of 5,800 metres could have hit ^obanija Street. The Trial
Chamber is satisfied that at that range, and taking account of the possible range of a FAB-250, the
origin of fire would have been outside the confrontation lines and within SRK-held territory,
whether the modified air bomb was fired from an area north-east or north-west of ^obanija Street.
The Trial Chamber also recalls its earlier finding that the ABiH did not have or use modified air
bombs; only the SRK possessed and used them. The Trial Chamber finds that the modified air
bomb was launched by members of the SRK.
562. The Trial Chamber recalls that it already rejected the Defence submission about the intensity
of the conflict on 16 June 1995.
(x) Shelling of a Water Distribution Point in Dobrinja on 18 June 1995
563. Some time during the armed conflict in Sarajevo, the Simon Bolivar School in Dobrinja
burned down and was destroyed.1992 During the Indictment period, this previously destroyed
building was used as a shelter for people gathering water from a concealed pump in an inner
courtyard of the school.1993 The location of the pump prevented anyone outside the school seeing
the people waiting in line.1994 A member of the civilian protection, an elderly man named Muharem,
operated the pump when it was decided it was safe to do so.1995
564. W-137, a police officer, testified that there were “no military facilities around or any
military strongholds built near the school.”1996 According to Luka Jovi}, the Simon Bolivar School
in Dobrinja was “well-sheltered from all sides”.1997 In cross-examination, W-137 agreed with the
Defence that the Simon Bolivar School was approximately 400 to 500 metres from the
confrontation lines between the ABiH and the VRS in Dobrinja.1998 He testified that the school was
not a particularly interesting target, because it was much lower than the surrounding buildings.1999
1991 P586, Expert report Berko Ze~evi}, pp 142 – 143. See also supra, Section II.E.6(b)(vii), Shelling of the UMC and
Oncology Department, Dositejeva, on 16 June 1995.
1992 W-137, 19 Feb 2007, T. 2460, 20 Feb 2007, T. 2501; Azra [i{i}, 27 Feb 2007, T. 2836, 2837.
1993 W-137, 19 Feb 2007, T. 2459, 2464, 2482; Azra [i{i}, 27 Feb 2007, T. 2837; P258, Photographs, p. 1.
1994 W-137, 19 Feb 2007, T. 2482; Azra [i{i}, 27 Feb 2007, T. 2855.
1995 Azra [i{i}, 27 Feb 2007, T. 2836, 2849 – 2850.
1996 W-137, 19 Feb 2007, T. 2460. See also P259, Criminal investigation file, dated 19 June 1995, p. 3 (under seal).
1997 Luka Jovi, 14 June 2007, T. 6703, D235, Map marked by Luka Jovi. He testified that there were bunkers in that
school and a family house near that school where the ABiH entered, and there were some containers used by
construction workers from Slovenia, and used to construct a bunker full of bags of soil, ibid. See also P333, Photograph
marked by Ismet Hadži.
1998 W-137, 19 Feb 2007, T. 2483.
1999 W-137, 19 Feb 2007, T. 2490.
187
Case No IT-98-29/1-T 12 December 2007
Ismet Hadži, Commander of the ABiH 155th Mountain Brigade, testified that there was no ABiH
weapon or firing position on a roof of the building near the school.2000 However, he indicated the
location where the command of the Brigade was based on a photograph, which shows that this
building is approximately 200 metres away from the school.2001 Ismet Had`i} further testified that
on 18 June 1995, the focus of the military activity was at Treskavica and Igman, rather than at
Dobrinja.2002 Azra [i{i}, resident of Dobrinja at the time of the shelling, testified that the morning
itself had been quite peaceful.2003
565. In its Final Brief, the Defence submitted that the school was “on the first frontline in the
middle of an ABiH offensive” and that on that day the police were present on the location of the
explosion, which “was not common.”2004
566. In order to get to the pump inside the school, one had to cross the playground of the school
and this area was covered by snipers.2005 Policemen warned people not to go to the water
distribution point in groups, but, rather, go there one by one.2006 On 17 June 1995, there had been
shelling in Dobrinja.2007 Until 18 June 1995, no one had been killed or injured at the pump.2008
567. On 18 June 1995, the residents of the neighbourhood were again warned not to go to the
school as a group.2009 When Azra [i{i} went there, approximately 50 persons were waiting to get
water.2010 This group consisted of mostly women and children, but also included some men; some
lived in the same building as Azra [i{i}.2011 About six persons were standing around the pump;
others were waiting behind a wall.2012 Azra [i{i} was waiting in line, talking to two people she
knew, when a shell exploded near the pump.2013 She testified that immediately after the explosion,
“everything went black before my eyes.”2014 One of the persons Azra [i{i} had been speaking to
was dead; Azra [i{i} and the other person next to her were wounded.2015 Azra [i{i} was taken to the
Dobrinja Hospital, which was near the school.2016 According to W-137, the shell exploded ten
2000 Ismet Hadži, 6 Mar 2007, T. 3268. The Trial Chamber notes that it was not provided with Ismet Had`i}’s rank.
2001 P333, Photograph marked by Ismet Had`i}.
2002 Ismet Had`i}, 6 Mar 2007, T. 3227.
2003 Azra [i{i}, 27 Feb 2007, T. 2840.
2004 Defence Final Brief, para. 192.
2005 Azra [i{i}, 27 Feb 2007, T. 2861.
2006 Azra [i{i}, 27 Feb 2007, T. 2835 – 2836.
2007 Azra [i{i}, 27 Feb 2007, T. 2834.
2008 Azra [i{i}, 27 Feb 2007, T. 2840.
2009 Azra [i{i}, 27 Feb 2007, T. 2835 – 2836, 2854.
2010 Azra [i{i}, 27 Feb 2007, T. 2835.
2011 Azra [i{i}, 27 Feb 2007, T. 2835.
2012 Azra [i{i}, 27 Feb 2007, T. 2838.
2013 Azra [i{i}, 27 Feb 2007, T. 2836, 2856.
2014 Azra [i{i}, 27 Feb 2007, T. 2856.
2015 Azra [i{i}, 27 Feb 2007, T. 2856.
2016 Azra [i{i}, 27 Feb 2007, T. 2842.
188
Case No IT-98-29/1-T 12 December 2007
centimetres above the heads of several people.2017 He recalled that the upper part of the bodies was
injured because “the shrapnel rain virtually fell on the people there.”2018
568. A BiH police report shows that the shell exploded at about 1140 hours.2019 An investigative
team arrived at the scene approximately one hour later; in the meantime, the scene was secured by
two members of the local police station.2020 The investigative team found a crater on the left wall, at
a height of around 3.2 metres to four metres, and shrapnel marks on the wall.2021 A tail-fin of a 120
mm mortar shell was found in the gym on the other side of the wall.2022 Based on the traces on the
wall and their calculations, the BiH police determined that the shell originated from the north-west
“where the aggressor barracks in Ned`ari}i are located.”2023
569. In response to questions by the Defence, W-137 explained that the tail fin had not, as
suggested by the Defence, bounced back on impact, but had continued as a result of the shell
exploding on the edge of the wall, ending up in the gym.2024 The BiH police were thus unable to use
the tail fin in determining the direction of fire; this determination was, therefore, made on the basis
of the marks left on the wall.2025 W-137 confirmed that the media reported an incorrect direction of
fire, saying that the media “often portray distorted pictures.”2026
570. An UNMO team arrived at the scene after the investigation of the BiH police had
concluded.2027 In cross-examination, W-137 was confronted with a statement of Capt. Thomas
Hansen, a Danish UNMO who had investigated this incident.2028 The statement showed that Capt.
Hansen determined, on the basis of marks on the wall, that the shell had come from a westerly to
north-westerly direction.2029 Capt. Hansen continued, “when you see the confrontation line, West
to North-West, from the point of impact, it is almost impossible to determine whether the shell was
fired by a BiH mortar or a BSA mortar. With the possible ranges for a 120 mm shell, it could have
been fired from either side.”2030 W-137 commented that the statement of Capt. Hansen was
2017 W-137, 19 Feb 2007, T. 2459.
2018 W-137, 19 Feb 2007, T. 2459, 2465.
2019 P259, Criminal investigation file, p. 2 (under seal).
2020 P259, Criminal investigation file, p. 1 (under seal); W-137, 20 Feb 2007, T. 2502.
2021 W-137, 19 Feb 2007, T. 2464 – 2465; P259, Criminal investigation file, p. 2 (under seal); P257, Photographs
marked by W-137; P589, Expert report by Richard Higgs, dated 21 December 2006 (“Second expert report Richard
Higgs”), p. 17.
2022 W-137, 19 Feb 2007, T. 2461, 2464; P259, Criminal investigation file, p. 2 (under seal). See also D72, Statement of
Thomas Hansen, dated 8, 9 September 1992 (“Statement of Thomas Hansen”), p. 2.
2023 W-137, 19 Feb 2007, T. 2461; P259, Criminal investigation file, p. 2 (under seal).
2024 W-137, 19 Feb 2007, T. 2487, 2488.
2025 W-137, 19 Feb 2007, T. 2487.
2026 W-137, 20 Feb 2007, T. 2505 – 2506, 2509 – 2510.
2027 W-137, 20 Feb 2007, T. 2502; D72, Statement of Thomas Hansen, p. 2; D74, UNMO daily sitrep, dated 18 June
1995 (“UNMO daily sitrep, 18 June 1995”), pp 6 – 7.
2028 W-137, 19 Feb 2007, T. 2491 – 2493.
2029 D72, Statement of Thomas Hansen, p. 2.
2030 D72, Statement of Thomas Hansen, p. 3.
189
Case No IT-98-29/1-T 12 December 2007
inaccurate and incompetent, because the specified direction was far too unspecific.2031 When shown
an UNMO report referring to the incident, W-137 repeated his opinion that what was claimed in the
report was too unspecific to warrant attention.2032 The Trial Chamber notes that the basis for the
UNMO report would have been Capt. Hansen’s investigation.
571. QMS Richard Higgs, the Prosecution expert on mortars, evaluated the evidence on this
incident and commented that the BiH police had used a sound methodology during their
investigation and agreed with the finding of the police on the direction of fire.2033 In his report, he
emphasised that the bearing as determined by the BiH police could only be seen as an
approximation of the direction of fire, but he testified that the identified location “was the most
likely firing position.”2034 In cross-examination, he reiterated that in view of the location of the
school in relation to other buildings around it, the shell could have come from only one
direction.2035 QMS Higgs testified that a calculation of the angle of descent was not possible,
because there was no clear crater pattern as a result of the shell hitting the wall.2036
572. As a result of the shelling, seven people were killed and 11 or 12 were wounded, at least
four of them seriously.2037 The bodies of the deceased were photographed in the morgue.2038 Capt.
Hansen stated that on 18 June 1995, he saw seven bodies in the morgue, all with “fragment
impacts” to the head.2039 W-137 testified that he believed that all victims were civilians.2040
573. The Defence challenged the allegation that seven people died in this explosion, arguing that
the bodies of people had been removed from the scene and that the Bosnian Muslim media reported
this as a shelling by the Bosnian Serbs, which was used by the BiH Government to request a lift of
the weapons embargo.2041 It also argued that the UNMO report showed that trace evidence had
already been removed from the scene by the time the UNMO team arrived.2042
2031 W-137, 19 Feb 2007, T. 2491.
2032 W-137, 19 Feb 2007, T. 2496; D73, UNMO daily sitrep, 19 June 1995, p. 12.
2033 Richard Higgs, 24 Apr 2007, T. 5048; P589, Second expert report Richard Higgs, pp 16 – 17.
2034 Richard Higgs, 24 Apr 2007, T. 5048; P589, Second expert report Richard Higgs, pp 18 – 19.
2035 Richard Higgs, 24 Apr 2007, T. 5062, 5063 – 5064. See also Richard Higgs, 24 Apr 2007, T. 5047 – 5048.
2036 Richard Higgs, 24 Apr 2007, T. 5064.
2037 Azra [i{i}, 27 Feb 2007, T. 2838 – 2840, 2841; P654, Death certificate for Bahrija Sijer~i}; P655, Death certificate
for Kenan ^izmi}; P656, Death certificate for Izet Kadi}; P657, Death certificate for Re{ad Imamovi}; P658, Death
certificate for Sulejman Mehmedovi}; P659, Death certificate for Safet Loncar; P660, Death certificate for Nura
Loncar; P259, Criminal investigation file, pp 1, 2 – 3 (under seal); P258, Photographs, pp 5 – 10. W-137 authenticated
the photographs, W-137, 19 Feb 2007, T. 2468; P651, P652, P653, Medical records. See also P16, UNPROFOR sitrep,
dated 24 June 1995, p. 3; D74, UNMO daily sitrep, 18 June 1995, p. 6; D73, UNMO daily sitrep, 19 June 1995, p. 12.
2038 W-137, 20 Feb 2007, T. 2503; P258, Photographs, pp 5 – 10.
2039 D72, Statement of Thomas Hansen, p. 2.
2040 W-137, 19 Feb 2007, T. 2460.
2041 W-137, 20 Feb 2007, T. 2500 – 2502, 2503 – 2506, 2509 – 2512.
2042 W-137, 19 Feb 2007, T. 2495 – 2496; D73, UNMO daily sitrep, 19 June 1995, p. 12.
190
Case No IT-98-29/1-T 12 December 2007
574. Ekrem Suljevi}, a member of the KDZ, testified that he took part in the investigation and
confirmed the authenticity of the police report which was tendered into evidence by the
Prosecution.2043 As to the removal of trace evidence, W-137 testified that blood marks and other
material were usually removed once an investigation was over.2044 He testified that the removal of
blood marks was done because “there was a huge shock” and that not removing those traces would
have been “a huge offence to the honour of the victims themselves.”2045 He did not know who
removed the traces of blood.2046 However, while on the scene, W-137 found “a lot of blood and
body parts.”2047 The Trial Chamber notes that the photographs that were tendered into evidence
show the presence of blood and body parts at the scene.2048 In addition, Capt. Hansen stated that
when he arrived at the scene, blood and human parts were still there.2049 W-137 also disagreed that
evidence had been removed from the scene, saying that the traces of the impact on the wall
remained intact, thus allowing for a determination of the direction of fire to be made.2050 In
response to the Defence suggestion that the shelling was used to request a lifting of the arms
embargo, W-137 testified that the government official, Haris Silajdzi}, often called for such a lifting
so that the Bosnian Muslims would be able to defend themselves.2051
575. Defence expert on mortars, Maj. Gen. Garovi}, concluded on the basis of the absence of
shrapnel marks in the photographs of the scene, that there was no evidence of a mortar explosion at
the school.2052 The Defence questioned QMS Higgs about the absence of shrapnel marks in the
photographs he used to determine the direction of fire.2053 QMS Higgs confirmed that the
photographs did not show shrapnel marks on the ground.2054 He explained that this was possible
because of the place of impact of the shell; since it hit the edge of a wall at an angle, “the blast
would have gone beyond the surface of the wall” and “if there was going to be any shrapnel marks,
they would probably have been on the ground around where the people were. But that’s a number
of metres away from the point of burst, so their markings would have been obviously not as
prominent as they are when a mortar round strikes the ground.”2055
2043 Ekrem Suljevi}, 5 Mar 2007, T. 3150, 3169, 3176 – 3177.
2044 W-137, 20 Feb 2007, T. 2500 – 2501.
2045 W-137, 20 Feb 2007, T. 2503.
2046 W-137, 20 Feb 2007, T. 2502.
2047 W-137, 20 Feb 2007, T. 2500.
2048 P258, Photographs, pp 4 – 5.
2049 D72, Statement by Thomas Hansen, p. 2.
2050 W-137, 20 Feb 2007, T. 2504.
2051 W-137, 20 Feb 2007, T. 2509 – 2510.
2052 Desimir Garovi}, 23 Aug 2007, T. 9151.
2053 Richard Higgs, 24 Apr 2007, T. 5096 – 5098.
2054 Richard Higgs, 24 Apr 2007, T. 5096.
2055 Richard Higgs, 24 Apr 2007, T. 5097 – 5098.
191
Case No IT-98-29/1-T 12 December 2007
576. Azra [i{i} testified that she thought this had been a deliberate attack against civilians.2056 In
cross-examination, QMS Higgs testified that one would have to see the school in order to accurately
fire onto the target.2057 He did not visit all possible firing positions in order to determine whether
the school was visible from all of them.2058 Luka Jovi}, testifying for the Defence, said that the
school was not visible from Dobrinja I or Dobrinja IV.2059 However, QMS Higgs testified that,
irrespective of where the shell was fired from, “firing a single round onto a location where civilians
are present is obviously being down sic to kill civilians, to either form terror in the minds of those
people, or to achieve some other wish of a commander, which I really could only guess at what that
could be.”2060 In response to further questions from the Defence, QMS Higgs testified that he had
no evidence to support a finding that the shell came from ABiH-held territory.2061 He also noted that
he was aware that the confrontation lines were close to the school, but that he had no information
indicating that there was heavy fighting going on at the time of the incident. Furthermore, if heavy
fighting was going on, the sound of one mortar being fired would not have been easily
distinguishable from it.2062
Findings
577. The Defence response to the Prosecution case on this incident is an allegation that the
shelling was staged; in fact, the Defence, through Maj. Gen. Garovi}, argued that far from the
explosion being the result of a mortar shell fired from some distance, the explosion was in fact
static. The main, if not the only, point made by Maj. Gen. Garovi} in support of the Defence case is
that in the photos there was an absence of shrapnel marks on the wall indicating that a mortar shell
had not exploded. The Defence put its allegation that the shelling was staged to a number of
witnesses, who all unequivocally rejected the possibility. The Trial Chamber finds credible the
explanation for the absence of shrapnel offered by QMS Higgs. He explained that the absence was
due to the fact that the shell hit the edge of a wall at an angle and that “the blast would have gone
beyond the surface of the wall”. The Trial Chamber also finds credible the evidence of Azra [i{i},
QMS Higgs and Capt. Hansen that the shell that exploded was a mortar shell. The Trial Chamber is
satisfied, on the basis of the evidence, that on 18 June 1995, a mortar shell exploded on a wall near
a water pump located in the Simon Bolivar School in Dobrinja.
2056 Azra [i{i}, 27 Feb 2007, T. 2840.
2057 Richard Higgs, 24 Apr 2007, T. 5067.
2058 Richard Higgs, 24 Apr 2007, T. 5067. He did not know whether the civilians would have been visible to the person
firing the shell, Richard Higgs, 24 Apr 2007, T. 5096.
2059 Luka Jovi}, 14 June 2007, T. 6703, 18 June 2007, T. 6735.
2060 Richard Higgs, 24 Apr 2007, T. 5072.
2061 Richard Higgs, 24 Apr 2007, T. 5072.
2062 Richard Higgs, 24 Apr 2007, T. 5095 – 5096, 5103.
192
Case No IT-98-29/1-T 12 December 2007
578. The Trial Chamber finds, on the basis of the evidence, including witness testimony, death
certificates and medical records and the BiH criminal investigation file, that seven civilians were
killed and 11 or 12 civilians were injured, four seriously, by the explosion of the mortar shell.
579. On the basis of the evidence in its totality, the Trial Chamber is unable to conclude that this
mortar shell was fired from the territory under the control of the SRK. The BiH police determined
that the direction of fire to be north-west of the incident site, locating the origin of fire in the
Ne|ari}i barracks of the SRK, and this was confirmed by QMS Higgs. On the other hand, Capt.
Hansen concluded that the shell came from a west to north-west direction. Capt. Hansen’s point was
that it was not possible to determine that the shell was fired by the ABiH or the SRK because the
possible range of a 120 mm shell could place the origin in either ABiH or SRK-held territory. In the
circumstances, therefore, the Trial Chamber is not satisfied that the mortar was launched from
SRK-held territory.
(xi) Shelling of TV Building on 28 June 1995
580. The World Wide Television Company had its offices in the TV Building on [este
Proleterske Brigade Street, number 4.2063 The TV Building has ten floors.2064 The second floor has
its own roof and it is separated from another part of the building by a large atrium.2065 In the
morning of 28 June 1995, Rialda Musaefendi}, who was an assistant to the producer of the World
Wide Television Company at the time, was in the office on the second floor of the TV Building.2066
Fadila Serdarevi} and Mehmed Kamber were also in the TV Building with about seven other
people.2067 The UNMOs Lt. Col. Louis Fortin and Capt. Thomas Hansen were in the PTT
Building.2068 John Jordan was in engi} Vila.2069
581. Lt. Col. Fortin stated that on 28 June 1995 there was heavy fire around the city.2070 The Trial
Chamber received evidence that the ABiH was engaged in an attack against the Bosnian Serbs in
Stup and Ne|ari}i that day, which started at 0830 hours.2071 John Jordan stated that, up until the
2063 Rialda Musaefendi}, P295, p. 2; D92, Statement of Rialda Musaefendi} to the ABiH police, dated 19 July 1995
(“Statement of Rialda Musaefendi}”), p. 1; P135, Forensic report on the TV Building shelling, dated 17 July 1995
(“Forensic report”), p. 1; W-138, 1 Feb 27, T. 1440. The Trial Chamber notes that [este Proleterske Brigade Street is
now known as Bulevar Me{e Selimovi}a.
2064 Rialda Musaefendi}, P295, p. 2.
2065 Rialda Musaefendi}, P295, p. 2.
2066 Rialda Musaefendi}, P295, p. 2; D92, Statement of Rialda Musaefendi}, p. 1.
2067 Fadila Serdarevi}, P641, pp 5, 9; Mehmed Kamber, P645, p. 5.
2068 Thomas Hansen, 2 Apr 2007, T. 4334; Louis Fortin, P27, p. 14.
2069 John Jordan, P267, p. 8.
2070 Louis Fortin, P27, p. 14.
2071 D183, UNPROFOR HQ sitrep, 1 July 1995; P45, UNPROFOR interoffice memo, dated 28 June 1995; Louis Fortin,
P27, p. 14. See also infra, para. 787.
193
Case No IT-98-29/1-T 12 December 2007
explosion at the TV Building, it had been relatively quiet that day, “with a mortar here and
there”.2072
582. Evidence was led regarding the status of the TV Building and the area around it. John
Jordan did not hear any outgoing fire from the area.2073 Several witnesses testified that there was no
military target or activity, nor any ABiH mortars, tanks or military hardware, inside or around the
TV Building.2074 Fadila Serdarevi}, who was in the TV Building, stated that she was not a soldier,
that she never wore a uniform and that she did not see any soldiers around the TV Building.2075
583. However, Lt. Col. Fortin testified that there were ABiH mortars in the vicinity, in a field
500 metres north of and behind the TV Building.2076 He thought that the ABiH mortars could not be
seen.2077 During cross-examination, he agreed that the ABiH placed heavy weapons close to
UNPROFOR positions.2078 He also agreed with the Defence that there were densely-populated areas
around mortar positions and that, by placing mortars there, one would “run into the problem of
collateral damage”.2079 However, Lt. Col. Fortin also believed that the ABiH moved its weapons a
lot in the course of their June offensive, and that the Bosnian Serb retaliations were usually
accurate.2080
584. At around 0900 hours on 28 June 1995, witnesses stated that they heard the sound of a very
strong impact.2081 Rialda Musaefendi} stated that this was followed by a sound similar to “a
thousand tiny feet walking on pebbles.”2082 After they heard the sound of the impact, Rialda
Musaefendi} and Fadila Serdarevi} took cover but since there was no immediate explosion they got
to their feet again.2083 Then there was “a huge detonation and flash”.2084 During cross examination,
Rialda Musaefendi} testified that, although it seemed to be a long time, she did not know how much
time elapsed between the first impact sound and the detonation.2085
2072 John Jordan, P267, p. 8.
2073 John Jordan, P267, p. 8.
2074 W-138, 31 Jan 2007, T. 1282; Rialda Musaefendi}, 28 Feb 2007, T. 2911; W-28, P275, p. 2 (under seal); John
Jordan, P267, p. 8. See also W-156, 27 Apr 2007, T. 5376, 5377 (closed session).
2075 Fadila Serdarevi}, P641, p. 9.
2076 Louis Fortin, 17 Jan 2007, T. 541, P27, p. 14.
2077 Louis Fortin, 17 Jan 2007, T. 551 – 552, 554 – 555.
2078 Louis Fortin, 17 Jan 2007, T. 535; P19, UNPROFOR sitrep, 2 July 1995, pp 3, 4.
2079 Louis Fortin, 17 Jan 2007, T. 541.
2080 Louis Fortin, 17 Jan 2007, T. 537, 552.
2081 Rialda Musaefendi}, 28 Feb 2007, T. 2910 – 2911, 2915 – 2916, P295, p. 2; D92, Statement of Rialda
Musaefendi}, p. 1; Mehmed Kamber, P645, p. 5; Fadila Serdarevi}, P641, p. 5; W-138, 30 Jan 2007, T. 1242.
2082 Rialda Musaefendi}, 28 Feb 2007, T. 2916, P295, p. 2.
2083 Rialda Musaefendi}, P295, p. 2; Fadila Serdarevi}, P641, p. 5.
2084 Rialda Musaefendi}, 28 Feb 2007, T. 2916, P295, p. 2; Fadila Serdarevi}, P641, p. 5.
2085 Rialda Musaefendi}, 28 Feb 2007, T. 2918, 2923.
194
Case No IT-98-29/1-T 12 December 2007
585. Fadila Serdarevi} felt a strong hit on her face and she fell on her back.2086 She felt an intense
heat on her face and was temporarily blinded.2087 Rialda Musaefendi} stated that when she looked
at the windows, they, and everything that had been on the window sills, were flying towards her.2088
She recalled lying at the end of the office near the door, covered by debris and items of
furniture.2089 She had hit her head and lost consciousness.2090 Another employee helped Rialda
Musaefendi} walk down the stairs.2091 She saw a lot of damage and “quite an amount of blood
everywhere” and heard the sound of people screaming.2092 When Fadila Serdarevi} was able to see
again with one eye, she saw people around her covered in blood, who were screaming and shouting
and “looked like they had no faces”.2093 Fadila Serdarevi} started to walk to leave the building.2094
However, she panicked and could not walk anymore.2095 Fadila Serdarevi} lay down on the floor
until a colleague carried her out.2096
586. W-138, a crime technician with the BiH police, testified that there were two other
explosions that morning, at roughly the same time.2097 The TV Building was heavily damaged, all
windows were broken and the ceiling collapsed.2098 Rialda Musaefendi} stated that the office was
“completely destroyed; “there were broken pieces of furniture lying everywhere”.2099 She saw a
body lying on the floor, to her right, as she was exiting the building.2100 She provided the
Prosecution with a DVD showing footage of the incident, shot by Mladen Pehar, a cameraman for a
German TV station, who was on the second floor of the TV Building, in the same corridor as Rialda
Musaefendi}, when the bomb hit.2101 The footage recorded the sound of the explosion and captured
the first moments after the explosion and the immediate effects, and showed extensive damage to
the interior and exterior of the TV Building, as well as injured persons.2102
2086 Fadila Serdarevi}, P641, p. 5.
2087 Fadila Serdarevi}, P641, p. 5.
2088 Rialda Musaefendi}, P295, p. 2.
2089 Rialda Musaefendi}, P295, p. 2.
2090 Rialda Musaefendi}, P295, p. 2.
2091 Rialda Musaefendi}, 28 Feb 2007, T. 2906.
2092 Rialda Musaefendi}, P295, p. 3.
2093 Fadila Serdarevi}, P641, p. 5.
2094 Fadila Serdarevi}, P641, p. 5.
2095 Fadila Serdarevi}, P641, p. 5.
2096 Fadila Serdarevi}, P641, p. 5.
2097 W-138, 30 Jan 2007, T. 1243.
2098 Mehmed Kamber, P645, p. 5; W-138, 30 Jan 2007, T. 1244; P133, Photograph file.
2099 Rialda Musaefendi}, P295, p. 2; D92, Statement of Rialda Musaefendi}, p. 1.
2100 Rialda Musaefendi}, 28 Feb 2007, T. 2911 – 2912.
2101 Rialda Musaefendi}, 28 Feb 2007, T. 2914; D91, Video footage of the TV Building shelling.
2102 Rialda Musaefendi}, 28 Feb 2007, T. 2915; D91, Video footage of the TV Building shelling.
195
Case No IT-98-29/1-T 12 December 2007
587. As a result of the explosion, about 30 persons were wounded.2103 Rialda Musaefendi} and
Fadila Serdarevi} were taken to Ko{evo hospital, along with all the other injured persons.2104 Fadila
Serdarevi} had cuts all over her face and neck and stayed in hospital for seven days.2105 Rialda
Musaefendi} had a cut above her eye and her eyes were damaged by the dust and debris.2106 A piece
of shrapnel was embedded in her right cheek.2107 Other material was also embedded in her head and
body and she stated: “it was as if my whole body had been peppered by this material”.2108 Rialda
Musaefendi} regularly returned to the hospital for treatment.2109 During cross-examination, the
Defence asked her why only one medical record attested to her injuries. Rialda Musaefendi} replied
that nobody worried about paperwork during the war and she had thus not collected medical
certificates about her condition.2110
588. Rialda Musaefendi} now has difficulty with her eyes; from time to time they get very sore,
they are very sensitive and she always has to wear glasses.2111 She still has material embedded in
her body but she can “function relatively normally”.2112 Mehmed Kamber received cuts and
suffered a 40 per cent loss of hearing “during” the blast.2113
589. One person, a security officer named Ibrahim [alaka, was killed.2114 W-138 testified that the
investigative team found the body of Ibrahim [alaka inside the TV Building. However, he testified
that the evidence showed that Ibrahim [alaka had died on the staircase and had then been brought
inside from there.2115 W-138 testified that Ibrahim [alaka had a multitude of wounds on the
backside of his body. The autopsy later showed that the wounds were caused by concrete fragments,
which had hit him in his back.2116
2103 Louis Fortin, P27, p. 14; Rialda Musaefendi}, P295, p. 3; P586, Expert report Berko Ze~evi}, p. 144; P134, Police
investigation file, p. 1; P135, Forensic report, p. 1; P49, P50, P51, P52, P53, P54, P55, P56, P57, P58, P60, P61, P62,
P63, P65, P66, P67, P68, P69, P70, P126 (under seal), Medical records, respectively for Rialda Mustaefendi}, Mehmed
Kamber, Fadila Serdarevi}, Ahmet Kulender, Zijad Jusufbegovi}, ibid., Nadira Kulender, ibid., Marija Bajramovi},
Mirko Lisov, Rajko Joksimovi}, Umihana Prguda, Alija Imamovi}, D`emal Terovi}, Sanela Bajramovi}, Asja Resavac,
Feridoun Hemani, Hamed Elzayegh, Alica ]urtovi}, Jasmina Abaz.
2104 Rialda Musaefendi}, 28 Feb 2007, T. 2908 – 2909, P295, p. 3.
2105 Fadila Serdarevi}, P641, p. 6.
2106 Rialda Musaefendi}, 28 Feb 2007, T. 2909, P295, pp 2 – 3; P49, Medical records, dated 17 July 1995.
2107 Rialda Musaefendi}, 28 Feb 2007, T. 2906 – 2907, P295, p. 3.
2108 Rialda Musaefendi}, 28 Feb 2007, T. 2925, P295, p. 3. Over the following few weeks this material began to come
out of her body, ibid.
2109 Rialda Musaefendi}, P295, p. 3.
2110 Rialda Musaefendi}, 28 Feb 2007, T. 2926; P49, Medical records, 17 July 1995.
2111 Rialda Musaefendi}, P295, p. 3.
2112 Rialda Musaefendi}, P295, p. 3.
2113 Mehmed Kamber, P645, p. 5.
2114 W-138, 31 Jan 2007, T. 1274, 1275; Rialda Musaefendi}, P295, p. 3; D33, Statement of W-138, p. 2 (under seal);
P586, Expert report Berko Ze~evi}, p. 144; P134, BiH police investigation file on the TV Building shelling, dated 28
June 1995 (“Police investigation file”), pp 1, 3; P135, Forensic report, p. 1; P126, Autopsy report of Ibrahim [alaka,
dated 29 June 1995.
2115 W-138, 31 Jan 2007, T. 1274 – 1275; P132, Blueprint sketch marked by W-138.
2116 W-138, 31 Jan 2007, T. 1276; P133, Photograph file, pp 8, 10.
196
Case No IT-98-29/1-T 12 December 2007
590. The Defence questioned W-138 extensively on his investigation into the death of Ibrahim
[akala. During cross examination, the Defence put to W-138 that he had planted the body inside the
building and that he had smeared the blood on the staircase, all of which the witness denied.2117 The
Defence also confronted W-138 with a prior statement, in which Ibrahim [alaka is said to have
been at the northern side of the atrium and to have run across it, to the staircase, immediately after
the projectile ricocheted.2118 W-138 stated that he had given this statement eleven years after the
incident and that he had added details, which he had heard from witnesses later; he denied the
allegation of the Defence that he was lying.2119 W-138 also denied the Defence allegations that he
had staged the incident and the death of Ibrahim [alaka and that he had thereby committed a war
crime and was obstructing justice and misleading the court.2120
591. The Defence also questioned Rialda Musaefendi} on the possibility of the body of Ibrahim
[alaka being planted. In response, she testified that there were about 12 persons in her office before
the bomb hit the building and that it would have been impossible to bring a body into the room
without being noticed and stopped because of the presence of numerous local and foreign
journalists and the security monitoring of the building.2121
592. After the explosion, word reached the Novi Grad BiH police station that an explosion had
occurred and a team headed by an investigative judge, and including KDZ experts, was set up.2122
In addition, Berko Ze~evi}, together with a ballistics and an explosives expert, carried out an
independent investigation upon the request of the investigative judge.2123 Berko Ze~evi} and his
colleagues arrived on site about one hour to one hour and a half after the explosion.2124 Berko
Ze~evi} went to the TV Building first and then was called to a nearby site where another projectile
had just landed; he stayed there for about 15 to 20 minutes and returned to the TV Building, where
he stayed until 1700 hours.2125 Berko Ze~evi} did not see any UNMOs at the TV Building but he
thought they could have come when he was at the other explosion site.2126
593. Capt. Hansen, who was summoned by the Trial Chamber as a court witness, testified that he
and another UNMO went to the TV Building. Efforts by the Trial Chamber to contact the other
2117 W-138, 1 Feb 2007, T. 1373 – 1374, 1378.
2118 W-138, 1 Feb 2007, T. 1375 – 1376; D33, Statement of W-138, p. 2 (under seal).
2119 W-138, 1 Feb 2007, T. 1376 – 1377.
2120 W-138, 1 Feb 2007, T. 1377.
2121 Rialda Musaefendi}, 28 Feb 2007, T. 2912 – 2913.
2122 W-138, 30 Jan 2007, T. 1206 – 1207, 1242, 31 Jan 2007, T. 1269; W-28, P275, p. 2 (under seal); P134, Police
investigation file, p. 1.
2123 Berko Ze~evi}, 20 Apr 2007, T. 4861 – 4862. They were assisted by police officers who took pictures for reporting
purposes, ibid.
2124 Berko Ze~evi}, 20 Apr 2007, T. 4862.
2125 Berko Ze~evi}, 20 Apr 2007, T. 4869.
2126 Berko Ze~evi}, 20 Apr 2007, T. 4869.
197
Case No IT-98-29/1-T 12 December 2007
UNMO in order to have him testify were unsuccessful. Capt. Hansen denied having been present
during the police investigation, although his presence is reflected in the police report.2127 Capt.
Hansen and the other UNMO did not participate in the investigations because the BiH police and
military did not allow them to do so. Shelling was still ongoing and they were taken to a room “for
their safety”, from which they were free to leave if they wished. 2128 They waited there for about
two hours before leaving.
594. The projectile landed in an inner courtyard of the TV Building and, initially, the
investigators did not understand how the projectile had come to land at that location so they
climbed on the roof to investigate.2129 They found a ricochet mark on the roof, which led them to
the second point of impact against the eastern wall of the courtyard.2130 According to W-138, Ekrem
Suljevi} and Berko Ze~evi}, the projectile ricocheted from the roof of the TV Building, continuing
its trajectory flying over Studio C. It hit a wall opposite Studio C, between the first and the second
floor, from which it ricocheted again to finally land and explode right next to the eastern wall of
Studio C.2131 W-138 stated that the second point of impact, where the projectile ricocheted for the
second time, was identified because it caused burn marks on the wall, which were not present on
other areas that were simply damaged by objects and debris flying.2132 W-138 added that the TV
Building had not been targeted before.2133 However, Martin Bell testified that the TV Building had
been targeted throughout the war.2134
595. Berko Ze~evi} and the investigative team found that the projectile left a large mark on the
roof of one metre by 1.5 metres by 0.2 metre deep, a larger opening on the exterior wall and interior
wall of Studio C and a crater in the ground, up to 1.5 metres deep, 1.5 metres wide and three metres
long.2135 When he saw the damage on the TV Building, W-138 thought it could not have been
caused by weapons with which he was experienced, such as mortar or artillery shells.2136 In his
report, Berko Ze~evi} wrote that there was extensive damage where the projectile exploded, which
showed no traces of a fragmentation effect, and looked like damage caused by a blast wave
2127 Thomas Hansen, 2 Apr 2007, T. 4342; P134, Police investigation file, p. 1.
2128 Thomas Hansen, 2 Apr 2007, T. 4339 – 4344.
2129 W-138, 31 Jan 2007, T. 1269 – 1270.
2130 W-138, 31 Jan 2007, T. 1269 – 1270.
2131 W-138, 30 Jan 2007, T. 1242, 1245 – 1246, 1252 – 1253, 1256 – 1257, 31 Jan 2007, T. 1269; Ekrem Suljevi},
P310, p. 2; P586, Expert report Berko Ze~evi}, pp 144, 147, 148; Rialda Musaefendi}, 28 Feb 2007, T. 2905, 2928;
P136, Photograph marked by W-138.
2132 W-138, 31 Jan 2007, T. 1268 – 1269.
2133 W-138, 31 Jan 2007, T. 1271.
2134 Martin Bell, 27 Apr 2007, T. 5302.
2135 P586, Expert report Berko Ze~evi}, p. 144; P134, Police investigation file, p. 2; P135, Forensic report, p. 2; W-138,
30 Jan 2007, T. 1255 – 1256, 1267; P133, Photograph file, pp 4, 6.
2136 W-138, 30 Jan 2007, T. 1245.
198
Case No IT-98-29/1-T 12 December 2007
explosion.2137 In his view, his conclusion that a type of air bomb with fuel-air explosive and two
explosive charges detonated within a few seconds of each other was corroborated by witness
statements that spoke of two explosions.2138 The conclusions of the BiH police investigation also
pointed to the use of this kind of explosive device.2139
596. A total of 41 fragments were analysed by the KDZ, which determined that 38 of the
fragments came from the air bomb; one fragment was found to have been part of “the carrier of the
aerial bomb” and the last two fragments were found to have been part of a fuse, but one of those
fragments “probably did not belong to the device which exploded.”2140 Both Berko Ze~evi} and
the investigative team concluded that the projectile was most probably a high-impact 250 kilogram
modified air bomb with fuel-air explosive, although its motors were not found.2141
597. A few days before handing his report to the investigative judge, Berko Ze~evi} was invited
to a meeting with someone from the Defence Ministry and two officers from the Security Service of
the ABiH Main Staff.2142 They asked Berko Ze~evi} to change his conclusion so as to state that the
projectile was a TNT bomb because, according to Berko Ze~evi}, these men were under the
impression that a TNT bomb could cause more damage than a fuel-air bomb.2143 He refused to
change his report. He testified that the fact that he was asked to change his report did not cast any
doubt on the quality of the police reports on this incident.2144
598. Ekrem Suljevi} stated that, on the basis of information and experience he accumulated since
the shelling, he could say that an air bomb, most probably a 250 kilogram bomb, was definitely
used.2145 On being asked by the Defence, Ekrem Suljevi} maintained his conclusion that the
projectile was a modified air bomb despite not finding any rocket motors on the scene.2146 He added
later that he thought the projectile probably lost the engines in flight, and to him, this was an
indication of the unreliable nature of the weapon.2147 Also during cross-examination, the Defence
presented Ekrem Suljevi} with a sketch of the projectile made by the UNMO who observed the
2137 P586, Expert report Berko Ze~evi}, pp 145, 148.
2138 P586, Expert report Berko Ze~evi}, pp 148, 149.
2139 P134, Police investigation file, p. 3; P135, Forensic report, p. 3.
2140 P135, Forensic report, pp 2 – 4. See also Rialda Musaefendi}, P295, p. 2.
2141 W-138, 30 Jan 2007, T. 1242, 1 Feb 2007, T. 1354; Ekrem Suljevi}, P310, p. 2; W-28, P275, p. 2 (under seal);
P586, Expert report Berko Ze~evi}, pp 145, 147; P135, Forensic report, pp 3, 4; W-46, 16 Mar 2007, T. 3846 (closed
session).
2142 Berko Ze~evi}, 20 Apr 2007, T. 4870 – 4871.
2143 Berko Ze~evi}, 20 Apr 2007, T. 4870 – 4871.
2144 Berko Ze~evi}, 20 Apr 2007, T. 4871 – 4872.
2145 Ekrem Suljevi}, P310, p. 2.
2146 Ekrem Suljevi}, 2 Mar 2007, T. 3123 – 3124.
2147 Ekrem Suljevi}, 5 Mar 2007, T. 3175 – 3176.
199
Case No IT-98-29/1-T 12 December 2007
incident from the PTT Building.2148 The sketch depicts an air bomb, 20 centimetres in diameter and
60 centimetres in length, which Ekrem Suljevi} thought it was impossible given the extent of the
damage he observed at the scene. He estimated that the diameter of the projectile had to be at least
40 centimetres.2149 He also observed that the report mentioned a short, wide projectile, and this
constitutes a discrepancy with the measurements given on the sketch.2150
599. The Defence asked W-138 whether he was an expert in modified air bombs to which he
replied that he had received training in ballistics that was sufficient to enable him to determine the
type of projectile.2151 The Defence also put to W-138 that the investigators did not find any traces of
rockets and that there was a possibility that the projectile dropped its motors during the flight.2152
W-138 replied that the investigation carried on for several days pursuant to a decision by the
investigating judge but that he was only there on the day of the incident.2153 On that day, he did not
find the rockets, as is stated in the report, but he testified that it is possible that the rockets were
found later by the investigators who continued to work on this incident.2154 The Defence asked W-
138 whether he or someone from his team had fired this rocket, in order to stage the incident and to
mock justice, thereby misusing their power. W-138 answered that neither he, nor anyone from his
team, had done that.2155
600. Further evidence to support the finding of Berko Ze~evi} on the type of warhead that
exploded on the TV Building was provided by Bakir Naka{, the Director of the State Hospital,
where many of the victims were treated that day. The latter testified that some of the injuries treated
were from shrapnel and debris from the building but most were from blast-shock.2156 John Jordan
and Martin Bell also recalled that the TV Building was hit by a modified air bomb.2157 Rialda
Musaefendi} stated that she later learnt that the explosion was caused by a 250 kilogram air bomb
that had an engine mounted on it.2158
601. On the basis of the evidence at the scene, including the ricochet marks on the roof and the
explosion site, the investigative team determined the direction of fire.2159 The BiH police
investigation file noted the azimuth as 288 degrees, that is, north-west of the incident site, in the
2148 Ekrem Suljevi}, 5 Mar 2007, T. 3170; D103, UNMO report on shelling of TV building with sketch, dated 29 June
1995 (“UNMO report with sketch”).
2149 Ekrem Suljevi}, 5 Mar 2007, T. 3170 – 3172; D103, UNMO report with sketch.
2150 Ekrem Suljevi}, 5 Mar 2007, T. 3175.
2151 W-138, 1 Feb 2007, T. 1354 – 1355.
2152 W-138, 1 Feb 2007, T. 1367.
2153 W-138, 1 Feb 2007, T. 1367.
2154 W-138, 1 Feb 2007, T. 1367.
2155 W-138, 1 Feb 2007, T. 1367 – 1368, 1371 – 1372, 1372 – 1373.
2156 Bakir Naka{, 29 Jan 2007, T. 1107.
2157 Martin Bell, 26 Apr 2007, T. 5263; John Jordan, P267, p. 8.
2158 Rialda Musaefendi}, P295, p. 3.
200
Case No IT-98-29/1-T 12 December 2007
area of Rajlovac, “where the aggressor was located.”2160 According to W-28, the on-site ballistics
expert, the bomb came from 288 degrees west.2161 The KDZ forensic report noted the azimuth was
280 degrees, plus or minus ten degrees.2162
602. Berko Ze~evi} also concluded that the modified air bomb had come from a direction of 280
degrees, plus or minus ten degrees, at an angle of of descent of 25 degrees and from a minimum
distance of 5,800 metres. He placed the launch point in the wider area between Doglodi and, the
more distant, Butila, which, the Trial Chamber notes, is north-west of the TV Building.2163 He
stated that the most important factor in establishing these figures was the impact traces on the
roof.2164 According to Berko Ze~evi}, these traces would have been very different had the bomb
been launched from a distance of one kilometre.2165
603. W-28 stated that he was sure the bomb came from enemy positions because there was
another report from the Stup police station, a subdivision of the BiH Ilid`a police station, which
recorded that the rockets fired on and around 28 June 1995 were fired from “enemy positions.”2166
W-28 did not see the report, but he knew it had been sent to the BiH Department of Genocide.2167
604. Ekrem Suljevi} stated that the direction of fire was confirmed by eyewitnesses.2168 Rialda
Musaefendi} testified that she was told that others had seen the bomb before it hit the TV Building
and that it appeared to come from the direction of Ilidža, which she stated, lay to the west of the TV
Building and was held by the SRK throughout the war.2169
605. Ekrem Suljevi} thought that the TV Building had been deliberately targeted, despite the
known inaccuracy of the aircraft bombs, because a day later another aircraft bomb was fired and it
landed about 100 metres away from the same building, an event confirmed by Mehmed Kamber.2170
606. Lt. Col. Per Anton Brennskag, at the time an UNMO in the Pofali}i UNMO team, saw the
incident from OP-4, in Vitkovac.2171 He testified to seeing the bomb being launched from the area
2159 W-138, 30 Jan 2007, T. 1245, 31 Jan 2007, T. 1282 – 1283, 1321; Ekrem Suljevi}, P310, p. 2.
2160 P134, Police investigation file, p. 3.
2161 W-28, P275, p. 2 (under seal).
2162 P135, Forensic report, p. 3.
2163 Berko Ze~evi}, 20 Apr 2007, T. 4872, 23 Apr 2007, T. 4969; P586, Expert report Berko Ze~evi}, pp 145, 147, 149,
150.
2164 Berko Ze~evi}, 20 Apr 2007, T. 4872.
2165 Berko Ze~evi}, 20 Apr 2007, T. 4873 – 4876.
2166 W-28, P275, p. 2 (under seal). The Trial Chamber notes that it did not receive this Ilid`a police station report.
2167 W-28, P275, p. 2 (under seal).
2168 Ekrem Suljevi}, P310, p. 2.
2169 Rialda Musaefendi}, 28 Feb 2007, T. 2928 – 2929, P295, p. 3.
2170 Ekrem Suljevi}, P310, p. 3; Mehmed Kamber, P645, p. 5.
2171 Per Anton Brennskag, 8 Mar 2007, T. 3452, 3458 – 3459; P348, Map marked by Per Anton Brennskag.
201
Case No IT-98-29/1-T 12 December 2007
of Ilid`a, a SRK-held area, a straight smoke trail and, finally, an impact on the TV Building.2172 He
specified that the smoke trail did not go all the way to the TV Building.2173 During his testimony,
Lt. Col Brennskag was shown a report on the incident written by Capt. Hansen, which stated that
the UNMOs at OP-4 were taking cover at the time of the incident and therefore could not provide
information about it.2174 Lt. Col. Brennskag denied having taken cover during the incident and
testified that he never saw Capt. Hansen at OP-4.2175 He testified that he reported his sighting orally,
although he did not remember to whom.2176
607. The Defence submission was that the origin of fire was ABiH-held territory.2177 The
Defence presented several witnesses with a report and a statement of UNMO Capt. Hansen,
according to which another UNMO said that he saw the projectile being fired from ABiH-held
territory. The other UNMO reported that the launch site was about 1,800 metres from the nearest
confrontation line, and that the projectile flew over the parking lot of the PTT Building.2178 During
his testimony before the Trial Chamber, Capt. Hansen confirmed he had not seen the incident
himself; rather, the other UNMO came to the PTT Building and reported to him what he had seen,
and indicated to Capt. Hansen the exact position from the place where the bomb was launched, and
he included this location in his report.2179 Lt. Col. Brennskag testified that if the modified air bomb
had been launched from the location indicated by Capt. Hansen, it would have been launched nearly
horizontally; Lt. Col. Brennskag witnessed the flight of four or five air bombs during the war and he
never saw one being launched horizontally.2180 He added that the projectile he witnessed coming
from Ilid`a could not have passed over the point identified by Capt. Hansen as being the origin of
fire.2181
608. Capt. Hansen estimated that about 300 to 500 people were working in the PTT Building at
the time, but the blinds were drawn on most of the building’s windows.2182 He did not consider it
unusual that no one else saw the projectile because people were sheltering from the ongoing
2172 Per Anton Brennskag, 8 Mar 2007, T. 3452, 3455, 3464, 3465, 3475; D114, P347, P348, Maps marked by Per
Anton Brennskag.
2173 Per Anton Brennskag, 8 Mar 2007, T. 3456, 3476.
2174 Per Anton Brennskag, 8 Mar 2007, T. 3458 – 3459; P894, UNMO report by Capt. Hansen on shelling of TV
Building, dated 29 June 1995 (“UNMO Capt. Hansen’s report”). The Trial Chamber notes that this report was also
given an MFI number, D31 and placed under seal. The Trial Chamber will refer to the exhibit number P894.
2175 Per Anton Brennskag, 8 Mar 2007, T. 3458 – 3459.
2176 Per Anton Brennskag, 8 Mar 2007, T. 3481 – 3482.
2177 See, e.g., Defence Final Brief, para. 207.
2178 P894, UNMO Capt. Hansen’s report; D72, Statement of Thomas Hansen, p. 3. See, e.g., Thomas Knustad, 13 Feb
2007, T. 2031 – 2033.
2179 Thomas Hansen, 2 Apr 2007, T. 4334 – 4335; P894, UNMO Capt. Hansen’s report.
2180 Per Anton Brennskag, 8 Mar 2007, T. 3466.
2181 Per Anton Brennskag, 8 Mar 2007, T. 3464 – 3465.
2182 Thomas Hansen, 2 Apr 2007, T. 4339.
202
Case No IT-98-29/1-T 12 December 2007
shelling.2183 Capt. Hansen agreed that it was possible that the UNMO he spoke to made a
mistake.2184 However, he also testified that, at the time he wrote his report, he was aware of the
implications it may have. He believed his conclusions to be correct and the UNMO’s report to be
credible.2185 The same day, he went to the ABiH Liaison Officer in the PTT Building and had a
conversation with him, which, according to Capt. Hansen, was misinterpreted and led to a conflict
between him and the ABiH.2186
609. Capt. Hansen did not encounter anyone else who saw the launching from ABiH-held
territory or saw a launcher truck.2187 Lt. Col. Butt did not remember that this report or the events
described in it were ever discussed in any of his team-leader meetings, although they were supposed
to be.2188 W-137 disagreed with the description of the events recounted in Capt. Hansen’s statement
and testified that the language of the report and its content carried little weight because it was based
on hearsay and did not “resemble any proper military report of expertise.”2189 Gen. Smith did not
remember the TV Building incident specifically but stated that, had the ABiH fired at the TV
Building, it would have been brought to his attention and he would have been surprised to hear
it.2190
610. Wg. Cdr. Andrew Knowles was summoned by the Trial Chamber as a court witness because
the Trial Chamber, after reviewing documents, concluded that he could provide information
relevant to the case. He testified that he worked in the PTT Building as Deputy Operations Officer,
with Capt. Hansen, the Chief Operations Officer and ABiH liaison officers.2191 He recalled that on
the morning of 28 June 1995, he was in the PTT car park with Capt. Hansen.2192 The Trial Chamber
notes that Capt. Hansen testified that he was in the PTT Building at the time the incident
occurred.2193
611. Wg. Cdr. Knowles testified that he and Capt. Hansen heard the sound of a launch and then
“caught sight of a low, flat, almost direct-fire type trajectory, slow moving that flew straight across
to a front horizontally and hit the TV Building and a couple of buildings up.”2194 After that, Wg.
2183 Thomas Hansen, 2 Apr 2007, T. 4361.
2184 Thomas Hansen, 2 Apr 2007, T. 4348 – 4349.
2185 Thomas Hansen, 2 Apr 2007, T. 4375 – 4376.
2186 See P519, UNMO report, dated 5 July 1995.
2187 Thomas Hansen, 2 Apr 2007, T. 4376.
2188 Asam Butt, 15 Feb 2007, T. 2218 – 2219.
2189 W-137, 20 Feb 2007, T. 2515 – 2516.
2190 Rupert Smith, 7 Mar 2007, T. 3402 – 3404. See also, Rialda Musaefendi}, 28 Feb 2007, T. 2938 – 2939; Martin
Bell, 27 Apr 2007, T. 5303, 5304 – 5305, 5306; W-156, 27 Apr 2007, T. 5344 – 5345 (closed session).
2191 Andrew Knowles, 25 Sept 2007, T. 9325.
2192 Andrew Knowles, 25 Sept 2007, T. 9326 – 9327, 9334, 9335, 9376, 9392; P517, Map of the area of the TV
Building in Sarajevo; P518, Colour photo from upper parking lot of PTT Building.
2193 Thomas Hansen, 2 Apr 2007, T. 4334.
2194 Andrew Knowles, 25 Sept 2007, T. 9334 – 9335.
203
Case No IT-98-29/1-T 12 December 2007
Cdr. Knowles testified, there was a detonation within seconds.2195 However, he conceded the
projectile could have, in fact, crossed over and landed behind the TV Building.2196 He also accepted
the possibility, suggested to him by the Prosecutor, that at the time he caught sight of the projectile,
it was already in flight and therefore could have come from further away than he thought it had.2197
Wg. Cdr. Knowles confirmed that he saw a launch signature consisting of a point of smoke on the
ground, which would have corresponded to the launch point unless, by a coincidence, there was
something else happening at that spot.2198 According to Wg. Cdr. Knowles, a patrol was sent out to
investigate the suspected launch site. However, no evidence of a launch was found at that
location.2199 He also accepted that, given that shelling was abundant in Sarajevo at that time, the
smoke signature could have been “something else happening.”2200
612. When asked to assess what kind of projectile he saw, Wg. Cdr. Knowles testified that the
projectile he saw was too big to be any kind of mortar or artillery shell.2201 He stated:
“This projectile whatever it was some sic, I would suggest an improvised type device,
obviously being used in a method that it was not designed from. And wherever it was launched
from, the initial launch would have provided it with its energy and then it seemed in a direct mode
to be travelling horizontally under its own momentum until it impacted where it impacted. I do not
recall a rocket motor being attached to this or if it had, it would have burnt out initially in the early
phase of its flight and the rest was ballistic.”2202
613. When he saw the projectile in flight, it did not have a smoke trail. Wg. Cdr. Knowles
testified that the projectile came from the north-west; he and Capt. Hansen tracked it all the way
into the TV Building.2203 Wg. Cdr. Knowles testified that, in order to have come from the Ilid`a
area, the projectile would have had to fly over the PTT Building and therefore, unless it was in its
terminal ballistic phase, dropping down, it could not have hit the TV Building without hitting
something else in its path.2204
614. When confronted with the conclusions of the investigations and evidence pointing to the
SRK launching the projectile on that day, Wg. Cdr. Knowles stated it was possible that what he had
witnessed was a “secondary event”, a coincidental and simultaneous round coming from a different
direction that may not have been the one which struck the TV Building.2205 However, he did not
remember seeing any report of any other impact on the TV Building on that day or on the following
2195 Andrew Knowles, 25 Sept 2007, T. 9376.
2196 Andrew Knowles, 25 Sept 2007, T. 9376.
2197 Andrew Knowles, 25 Sept 2007, T. 9389 – 9390.
2198 Andrew Knowles, 25 Sept 2007, T. 9341 – 9342.
2199 Andrew Knowles, 25 Sept 2007, T. 9339.
2200 Andrew Knowles, 25 Sept 2007, T. 9342.
2201 Andrew Knowles, 25 Sept 2007, T. 9400.
2202 Andrew Knowles, 25 Sept 2007, T. 9400 – 9401.
2203 Andrew Knowles, 25 Sept 2007, T. 9346 – 9347.
2204 Andrew Knowles, 25 Sept 2007, T. 9347 – 9348.
204
Case No IT-98-29/1-T 12 December 2007
day.2206 He accepted that he could have been mistaken about the fact that he was with Capt. Hansen
in the car park, but stood firm on his statements about the flight path which he witnessed.2207
615. The Trial Chamber also received evidence pertaining to this incident originating from the
SRK. An SRK report on the situation at the front, signed by the Accused and dated 30 June 1995,
stated:
“Our artillery forces are responding with precision to the Muslim artillery attacks. In one such
response on 28 June they hit the BHRTV, radio and television centre, the centre of media lies
against the just struggle of the Serb people.”2208
Maj. Veljovi} was asked to comment on this document. He testified that it referred to artillery and
not to modified air bombs.2209 Wg. Cdr. Knowles also accepted the proposition of the Defence that
it was possible that the warring factions would have boasted about things that they never did in
order to boost the morale of troops.2210
616. The Trial Chamber also received evidence in the form of minutes of a meeting between
liaison officers of UNPROFOR and SRK Ilid`a Brigade. The document stated that the SRK officer:
“acknowledged that Krema rockets had been fired on the city of Sarajevo (about a dozen). This
was psychological warfare, aimed at upsetting the Bosnian soldiers engaged on the Treskavica
front who would be worried about the safety of their families in Sarajevo. He said that the Bosnian
authorities tried to conceal the efficiency of these shots by keeping the press in the Television
Building. In fact, two Krema rockets were launched on the Television Building. One of them hit it
and consequently, according to Captain Novak, the journalists were able to report on the incident
and the Bosnian soldiers were informed about the existence of these weapons called Terror.”2211
617. The Trial Chamber was presented with a protest letter sent by Col. Meille to the Accused,
concerning, inter alia, the TV Building incident, which stated that the origin of fire was SRK-held
territory and in which the Accused was urged to stop “these violations of humanitarian law”.2212
This letter was forwarded by Maj. Gen. Nicolai, who, in a cover letter, stated, “I write to you to
protest most strongly about the recent and still continued indiscriminate and deliberate shelling of
the residential places of the city of Sarajevo, which unfortunately results in casualties amongst
innocent civilian population.”2213 The Defence argued, in its Final Brief, that this shelling incident
2205 Andrew Knowles, 25 Sept 2007, T. 9363, 9397.
2206 Andrew Knowles, 25 Sept 2007, T. 9397 – 9398.
2207 Andrew Knowles, 25 Sept 2007, T. 9392, 9393, 9398.
2208 P42, P152, Report by the SRK commander, dated 30 June 1995.
2209 Stevan Veljovi}, 31 May 2007, T. 5920.
2210 Andrew Knowles, 25 Sept 2007, T. 9395.
2211 P629, UNPROFOR meeting minutes, dated 9 July 1995. See also, W-156, 27 Apr 2007, T. 5329 – 5330 (closed
session).
2212 P633, Protest letter to the SRK Commander, dated 30 June 1995 (under seal). The Trial Chamber notes that this
letter is also P18. See also W-156, 27 Apr 2007, T. 5344 (closed session).
2213 P103, Protest letter, dated 1 July 1995. See also, Cornelis Hendrik Nicolai, 24 Jan 2007, T. 951.
205
Case No IT-98-29/1-T 12 December 2007
was “instructive” with regard to the means at the Accused’s disposal to carry out investigations
following the letters of protest sent to him by UNPROFOR.2214
Findings
618. On the basis of the evidence, the Trial Chamber is satisfied that on 28 August 1995, a
modified air bomb hit the TV Building and exploded. There was no real challenge by the Defence
that it was a modified air bomb that hit the TV Building. In any event, the Trial Chamber is
supported in its finding by testimony of several witnesses, and the reports of Berko Ze~evi} and the
BiH police.
619. The evidence shows that approximately 30 civilians were wounded, some seriously. The
Defence challenged a number of Prosecution witnesses regarding the death of Ibrahim [alaka,
suggesting to them that his death was staged. All the witnesses rejected that suggestion. While
Ibrahim [alaka may have been moved inside the TV Building from the staircase on which he was
killed, the Trial Chamber is satisfied on the basis of the evidence, including the BiH police reports
and the autopsy report, that Ibrahim [alaka, a civilian, was killed in the explosion.
620. The Defence challenged the Prosecution evidence on the origin of fire, focusing mainly on
the report of Capt. Hansen. The latter testified that the modified air bomb was fired from ABiHheld
territory. The Trial Chamber notes that the evidence recorded in the report is hearsay. Lt. Col.
Brennskag, an eyewitness to the incident, was shown Capt. Hansen’s report and dismissed the
possibility that the modified air bomb was fired from ABiH-held territory because he saw it being
fired from Ilid`a. W-137 also dismissed Capt. Hansen’s report, saying that its language and content
carried little weight because it was based on hearsay and did not “resemble any proper military
report of expertise.”
621. The Trial Chamber must also assess the evidence of Wg. Cdr. Knowles, who testified that
he saw a projectile flying from ABiH-held territory. However, in the view of the Trial Chamber, he
displayed considerable uncertainty as to whether this was the projectile that hit the TV Building.
The Trial Chamber is bound to say that it found Wg. Cdr. Knowles’ evidence vague and full of
caveats. In assessing the weight to be attached to Capt. Hansen’s evidence, as against the rest of the
evidence, the Trial Chamber cannot ignore its hearsay character and that it stands alone as the
evidence which positively seeks to identify ABiH territory as the origin of fire. On the other hand,
the Trial Chamber has before it evidence of the SRK origin of the bomb that is first-hand from
several witnesses, including Lt. Col. Brennskag and the reports of the BiH police, including the
2214 Defence Final Brief, para. 207.
206
Case No IT-98-29/1-T 12 December 2007
KDZ, and Berko Ze~evi}. The Trial Chamber also recalls its earlier finding that the ABiH did not
have or use modified air bombs; only the SRK possessed and used them.
622. The most cogent evidence supporting the Prosecution case that the modified air bomb came
from SRK-held territory is the report from the Accused, referred to in paragraph 615 above, which
includes what is tantamount to an acknowledgement on his part that the SRK launched a bomb at
the TV Building on 28 June 1995. The Trial Chamber attaches no weight to Wg. Cdr. Knowles’
acceptance of the Defence proposition that warring factions would have boasted about things they
never did in order to boost the morale of their troops.
623. In sum, the Trial Chamber is satisfied that the modified air bomb that hit the TV Building on
28 June 1995 was fired from the area around Ilid`a, which, the evidence shows, was SRK-held
territory and that it was launched by members of the SRK.
(xii) Shelling of Buni~ki Potok Street on 1 July 1995
624. Zejna Šljivo lived on Buni~ki Potok Street, number 233, in Hrasnica, at the foot of Mount
Igman. In the evening of 1 July 1995, she was at home, in the kitchen, with her two daughters, Nefa
and Jasmina, Jasmina’s husband, Nedžad, and their four year old daughter Emira.2215 At the same
time, W-95 was in the garden of another house on Buni~ki Potok Street with about nine other
persons.2216 Fikreta Pa~ariz was in the basement or the ground floor of her home on Buni~ki Potok
Street, with her husband, Hamo Pa~ariz, and their children.2217
625. Col. Hussain Ijaz, an UNMO from Pakistan, was posted in Hrasnica at the time.2218 He
stated that he was sitting in the kitchen, on the second floor of the house where his team was
stationed, while the rest of his team was sitting in the office, in an adjacent room.2219
626. At around 2100 hours, the inhabitants of Buni~ki Potok Street in Hrasnica heard a noise,
which, according to W-95, Col. Ijaz and Fikreta Pa~ariz, was similar to that of an aeroplane.2220 W-
95, Col. Ijaz, Zejna Šljivo and Fikreta Pa~ariz then all heard a big explosion.2221
2215 Zejna Šljivo, P642, p. 5.
2216 W-95, P520, p. 2 (under seal).
2217 Fikreta Pa~ariz, P643, p. 9.
2218 Hussain Ijaz, 27 Apr 2007, T. 5400. The Trial Chamber notes that this witness was a Major in the Pakistani Army at
the time of the incident. For the purposes of this Judgement, the Trial Chamber will refer to this witness by his current
rank.
2219 Hussain Ijaz, 27 Apr 2007, T. 5413.
2220 Hussain Ijaz, 1 May 2007, T. 5430; Nefa [ljivo, 5 Apr 2007, T. 4512, P531, p. 2, P532, p. 2; W-95, P520, p. 2
(under seal); Zejna [ljivo, P642, p. 5; Fikreta Pa~ariz, P643, p. 9.
2221 Hussain Ijaz, 27 Apr 2007, T. 5414; W-95, P520, p. 2 (under seal); Zejna Šljivo, P642, p. 5; Fikreta Pa~ariz, P643,
p. 6.
207
Case No IT-98-29/1-T 12 December 2007
627. A projectile hit Zejna [ljivo’s garage, which was connected to her house, exploded, and the
house collapsed around her.2222 Her family was screaming and there was dust everywhere.2223 The
family managed to get outside but Zejna Šljivo fell down and injured her forehead.2224 Nefa [ljivo
received cuts on her back. While most of her family members received cuts to the face, her brotherin-
law’s wrist was broken.2225 Zejna Šljivo’s other daughter, Jasmina, ran to get help and, when she
came back, she said that “UNPROFOR soldiers” had been wounded in the blast.2226 Zejna Šljivo
and her family went to the outpatients’ clinic, and then to the ]amil Mari} War Hospital in
Hrasnica, to receive treatment for their injuries.2227 At the hospital, Nefa Šljivo saw a number of her
neighbours who had also been injured: one man with a severe head injury, one woman with “many
scars” on her face and another with an injury to her shoulder.2228 According to Zejna Šljivo, during
the time she was at the hospital, the shelling continued.2229
628. The window of the kitchen where Col. Ijaz was sitting came away from the wall and fell on
him; he received injuries to his right shoulder and left leg.2230 A Bangladeshi UNMO was also
injured.2231 Col. Ijaz was later evacuated to the hospital in Hrasnica and then to a French hospital in
Sarajevo.2232
629. W-95 saw roofing tiles and bricks being blasted away by the force of the explosion and she
was thrown against the wall of the garage.2233 She received injuries to her left shoulder as a result of
being hit by shrapnel, which doctors at the ]amil Mari} War Hospital in Hrasnica were unable to
remove.2234 She recalled that a man named Kadi} and a woman named Naza Pamuk were also
injured and that many of the wounded were brought to that same hospital.2235
630. Fikreta Pa~ariz’s home was heavily damaged and was no longer habitable.2236 Five or six
surrounding houses were also damaged.2237 Fikreta Pa~ariz suffered cuts to her face, head and
2222 Nefa [ljivo, 5 Apr 2007, T. 4508, T. 4511, P531, p. 2, P532, p. 2; Zejna Šljivo, P642, p. 5; Fikreta Pa~ariz, P643, p.
6. See also P603, Official report, dated 4 July 1995, pp 1, 3, which states that the bomb landed on Buni~ki Potok Street,
233. The Trial Chamber notes, however, that in P604, Forensic report by KDZ, dated 13 July 1995 (“Forensic report”),
p. 1, and P586, Expert report Berko Ze~evi}, p. 159, the impact site is said to be Buni~ki Potok Street, number 231.
2223 Nefa [ljivo, P532, p. 2.
2224 Zejna Šljivo, P642, p. 5.
2225 Nefa [ljivo, 5 Apr 2007, T. 4508, P532, p. 2; Zejna Šljivo, P642, p. 5.
2226 Zejna Šljivo, P642, p. 5.
2227 Zejna Šljivo, P642, p. 5; Nefa Sljivo, 5 Apr 2007, T. 4508, P532, p. 2.
2228 Nefa [ljivo, P532, p. 2.
2229 Zejna Šljivo, P642, p. 5.
2230 Hussain Ijaz, 27 Apr 2007, T. 5414 – 5415.
2231 Hussain Ijaz, 27 Apr 2007, T. 5415.
2232 Hussain Ijaz, 27 Apr 2007, T. 5416, 5418.
2233 W-95, P520, pp 2 – 3 (under seal).
2234 W-95, 2 Apr 2007, T. 4410 – 4411, P520, p. 3 (under seal).
2235 W-95, 2 Apr 2007, T. 4410, P520, p. 3 (under seal). According to W-95, there was not enough room for everyone to
be treated indoors.
2236 Fikreta Pa~ariz, P643, pp 6, 10.
208
Case No IT-98-29/1-T 12 December 2007
neck.2238 Her husband, Hamo Pa~ariz, and children were not hurt, although her husband and
mother-in-law were in shock.2239 Her father-in-law, Duran Pa~ariz, was seriously injured.2240
Fikreta Pa~ariz and her father-in-law were taken to the Hrasnica Hospital, where they received
treatment.2241 Duran Pa~ariz died from a heart attack on 18 July 1995.2242 According to Fikreta
Pa~ariz, the injuries and the shock of the bombing accounted for his death.2243 Fikreta Pa~ariz
continues to live with “psychological traumas”.2244 She also stated that many neighbours were
injured in the explosion.2245 According to reports by the BiH police, two persons were seriously
wounded and eleven others were slightly wounded in the explosion.2246
631. The BiH police was informed at approximately 2215 hours that an explosion had occurred at
Buni~ki Potok Street, number 233, and that, at the same time, damage had been found on Alekse
[anti}a Street, number 50.2247 The latter house was located around 150 metres away from the site of
the explosion on Buni~ki Potok Street.2248 On 2 July 1995, the investigative team went to Buni~ki
Potok Street to investigate the explosion; a crater measuring 3.5 by 2.8 metres in diameter and 1.10
metres deep was found in front of the house.2249 Afterwards, the investigative team went to the
house on Alekse [anti}a Street, where it found fragments in a large crater, measuring 6.10 by 2.40
metres, in the garden.2250 One of the fragments found carried Cyrillic letters and numbers.2251
632. The BiH police investigators determined that one projectile, with a concussion warhead, that
is, a modified air bomb, impacted on Alekse [anti}a Street, number 50, and ricocheted to hit
Buni~ki Potok Street, number 233.2252 The conclusion was that “the concussion warhead projectile
2237 Fikreta Pa~ariz, P643, pp 6, 9.
2238 Fikreta Pa~ariz, P643, pp 6, 9.
2239 Fikreta Pa~ariz, P643, pp 6, 9.
2240 Fikreta Pa~ariz, P643, pp 6, 9.
2241 Fikreta Pa~ariz, P643, pp 6, 10.
2242 Fikreta Pa~ariz, P643, p. 6.
2243 Fikreta Pa~ariz, P643, pp 6, 10.
2244 Fikreta Pa~ariz, P643, p 6, 10.
2245 Fikreta Pa~ariz, P643, pp 6, 9.
2246 P603, Official report, pp 1 – 3; P604, Forensic report, p. 1. Enes Kadi} and Nedjad Bostand`i} were seriously
wounded, Kemal Mortuza, Husein Ijaz, Fikreta Pa}ariz, Duran Pa}ariz, Naza Pamuk, Hata Mulaosmanovi}, Emira
Kadi}, Zeina [ljivo, Nefa [ljivo, Emir Bostand`i} and Jasmina Bostand`i} were lightly injured. The BiH police also
received reports from the hospital in Hrasnica regarding injuries sustained by certain individuals, see Vekaz Turkovi},
26 Apr 2007, T. 5208, 5227 – 5228; P603, Official report, p. 1.
2247 P603, Official report, p. 1.
2248 P603, Official report, p. 1.
2249 P603, Official report, pp 1 – 3.
2250 P603, Official report, p. 4.
2251 P603, Official report, p. 4.
2252 P603, Official report, p. 4; P604, Forensic report, p. 1. The Trial Chamber notes that this type of projectile belongs
to the category of air bombs, see supra, Section II.B.2(b)(ii) Modified Air Bombs.
209
Case No IT-98-29/1-T 12 December 2007
was most probably …. unfastened from the rest of the projectile there, that is, it got loose and
landed and exploded about 150 metres away from the said house in Buni~ki Potok.”2253
633. Berko Ze~evi} also concluded that the projectile that exploded on Buni~ki Potok Street was
a modified air bomb.2254 In his report, Berko Ze~evi} stated that, “the damage and the direction of
the blast wave effect point to the fact that the aircraft bomb had probably been charged with some
kind of fuel-air explosive.”2255 However, Berko Ze~evi} arrived at a different conclusion from the
BiH police investigators; he concluded that two modified air bombs hit two locations that were
close to one another in a relatively short space of time.2256 In court, Berko Ze~evi} testified that he
was able to calculate the direction and the angle of descent and concluded that “there were two
separate cases and that the report saying that the rocket, after hitting the ground, deviated by 90
degrees and hit the roof of a house on Buni~ki Potok Street was absolutely not authenticate”
because it was impossible to manipulate the flight of an unguided projectile, and because the
deviation of 90 degrees was too high to be considered a ricochet.2257 Furthermore, according to
Berko Ze~evi}, a warhead had a larger mass than rocket motors do and thus “it isn’t logical that
rocket motors are grounded and the warhead which has a larger mass should be found ahead of
it.”2258 The Trial Chamber notes that during cross-examination, Vekaz Turkovi} testified that while
he had taken part in the investigation and worked on the report of the forensic on-site investigation,
he had not signed it himself, and could not, therefore, attest to the accuracy of all the information it
contained.2259 At the time of his appearance before the Trial Chamber, Vekaz Turkovi} was aware
of the conclusions reached by Berko Ze~evi} and believed it possible that they were correct.2260
634. Fikreta Pa~ariz also stated that there were two bombs, the first of which did not explode, and
the second of which exploded 15 minutes later on the garage near her house.2261 Fikreta Pa~ariz
explained that whilst other shells splintered into shrapnel when they exploded, this bomb did
not.2262 She was later told that the bomb contained 250 kilograms of explosives.2263
2253 P603, Official report, p. 4. See also, Vekaz Turkovi}, P600, p. 3.
2254 P586, Expert report Berko Ze~evi}, p. 158. See also, Hussain Ijaz, 27 Apr 2007, T. 5416; Nefa [ljivo, 5 Apr 2007,
T. 4515; W-95, P520, p. 3 (under seal).
2255 P586, Expert report Berko Ze~evi}, p. 159.
2256 Berko Ze~evi}, 20 Apr 2007, T. 4877 – 4878. See also, P586, Expert report Berko Ze~evi}, p. 159.
2257 Berko Ze~evi}, 20 Apr 2007, T. 4878.
2258 Berko Ze~evi}, 20 Apr 2007, T. 4878.
2259 Vekaz Turkovi}, 26 Apr 2007, T. 5227 – 5228, referring to P604, Forensic report.
2260 Vekaz Turkovi}, 26 Apr 2007, T. 5207 – 5208.
2261 Fikreta Pa~ariz, P643, p. 6.
2262 Fikreta Pa~ariz, P643, p. 6.
2263 Fikreta Pa~ariz, P643, p. 6.
210
Case No IT-98-29/1-T 12 December 2007
635. In its Final Brief, the Defence submitted that the BiH police did not find any shrapnel at the
impact sites.2264 The BiH police report, cited by the Defence in support of its submission, stated that
the BiH police found “several shell fragments of different shapes and dimensions” in and around
the crater in Buni~ki Potok Street and two rocket motors and “several fragments of the rocket motor
body were found in the garden” on Alekse [anti}a Street.2265 The forensic report, also cited by the
Defence, noted that “pieces of projectile” were found, but there is no information in the report
concerning “other traces” or “items found at the scene”.2266 When confronted with the fact that the
BiH police report did not mention pieces of shrapnel being found on the locations that sustained
heavy damage, Vekaz Turkovi} explained that the standard procedure at the time was to try and
collect a sufficient amount of trace evidence that could serve to establish the type of weapon; it was
impossible to collect all pieces of shrapnel due to the vast amount of shrapnel found at shelling sites
and gathering all this trace evidence was considered unnecessary.2267 The Trial Chamber further
recalls the evidence of Berko Ze~evi} that a bomb with fuel-air explosive leaves remnants of the
bomb’s body after the explosion but little to no shrapnel around the point of detonation.2268
636. The BiH police investigators concluded that the modified air bomb was fired “from the
aggressor’s positions in the north, the surrounding area of Ilid`a.”2269 Vekaz Turkovi} stated that
this conclusion was reached by examining the first place of impact of the bomb and how it had
ricocheted thereafter and hit the second house; the bomb “had to have been launched from the
direction of Ilid`a and nowhere else.”2270 The forensic report stated that the projectile was launched
from the north.2271
637. Berko Ze~evi} determined the direction of fire as north-west of the impact site but he could
not precisely establish the angle of descent.2272 However, when testifying before the Trial Chamber,
he stated that the direction of fire was, in principle, similar to that determined by the BiH police,
which was that it came from the direction of Ilid`a. The angle of descent and distance it travelled
were around 25 degrees and 5,000 metres respectively.2273 In order to arrive at these conclusions, he
relied on the topography of Sarajevo, photographs of the scene and the information about the
damage.2274 Berko Ze~evi} wrote in his report that “the incoming direction of this projectile could
2264 Defence Final Brief, para. 208.
2265 P603, Official report, pp 3 – 4.
2266 P604, Forensic report, pp 1 – 2.
2267 Vekaz Turkovi}, 26 Apr 2007, T. 5232 – 5233, P600, p. 3.
2268 See supra para. 94.
2269 P603, Official report, pp 3 – 4; Vekaz Turkovi}, P600, p. 3.
2270 Vekaz Turkovi}, P601, p. 3.
2271 P604, Forensic report, p. 1.
2272 P586, Expert report Berko Ze~evi}, p. 159.
2273 Berko Ze~evi}, 20 Apr 2007, T. 4879 – 4880.
2274 Berko Ze~evi}, 20 Apr 2007, T. 4880.
211
Case No IT-98-29/1-T 12 December 2007
not be determined on the basis of the effects on the ground, but it was possible to determine the
location of the place where the modified bomb hit the ground, in view of the incidents in Alekse
[anti}a Street, which are very close to the place of this incident. On the basis of those facts, it can
be concluded that the probable incoming angle is similar and that the launch site should also be in
the area of Plandi{te.”2275 The Trial Chamber notes that the area of Plandi{te is slightly north-west
of Ilid`a.2276
638. The Defence submitted that this incident took place after “menaces” from the mayor of
Sarajevo.2277 The UNPROFOR report cited by the Defence referred to a breakdown in the
relationship between UNPROFOR and that, on 30 June 1995, the mayor of Sarajevo hinted at
retaliation against UNPROFOR “if it did nothing to help the city.”2278 However, no evidence was
presented during trial indicating that the ABiH may have fired the modified air bombs that impacted
in Hrasnica on 1 July 1995, or, moreover, that it targeted UNPROFOR with the modified air bombs
on that date. The UNPROFOR report further stated that in the week preceding 1 July 1995 the SRK
“counter-attacked” the eastern slopes of Mount Igman to the south of Sarajevo and pushed the
ABiH back from “vital roads.”2279 According to the report, the SRK told the UN that it would
“launch punitive counter-attacks against the urban area” and that the SRK “responded to the
Bosnian offensive by resuming a fairly indiscriminate bombardment of the downtown area.”2280
Findings
639. The Trial Chamber is satisfied, on the basis of the evidence as a whole and, particularly the
evidence of Berko Ze~evi}, that two modified air bombs fell on the evening of 1 July 1995, one on
Buni~ki Potok Street and the other on Alekse [anti}a Street. It is established on the basis of the
testimony of Zejna [ljivo, W-95 and Fikreta Pa~ariz, and the BiH police report, that the explosion
on Buni~ki Potok Street caused injuries to 13 civilians, two of whom were seriously injured.
640. The BiH police report identified Ilid`a as the origin of fire. Berko Ze~evi} concluded that
the modified air bomb on Buni~ki Potok Street had been fired from the north-west, and testified that
the direction was, in principle, the same as that determined by the BiH police. The KDZ report
stated that the direction of fire was north. The Trial Chamber notes that the area of Ilid`a is north,
north-west of the impact site and recalls that evidence was presented indicating that the area around
2275 P586, Expert report Berko Ze~evi}, p. 160.
2276 See,e,g, D59, Military map of Sarajevo area.
2277 Defence Final Brief, para. 208.
2278 P19, UNPROFOR sitrep, pp 4 – 5.
2279 P19, UNPROFOR sitrep, p. 2.
2280 P19, UNPROFOR sitrep, p. 2.
212
Case No IT-98-29/1-T 12 December 2007
Ilid`a was SRK-held territory.2281 The Trial Chamber also recalls its earlier finding that the ABiH
did not have or use modified air bombs; only the SRK possessed and used them. The Trial Chamber
is satisfied that the modified air bombs were fired from the Ilid`a area, which was controlled by the
SRK and that it was launched by members of the SRK.
(xiii) Shelling of Bjela{ni~ka Street in Sokolovi}i on 23 July 1995
641. In the afternoon of 23 July 1995, two bombs landed in Sokolovi} Kolonija, otherwise called
Sokolovi}i, but did not explode.2282 According to Edisa Kr{o, the shelling then stopped and people
came out onto the street.2283 W-82 went to see the unexploded bombs and then returned home where
she did some housework until 1800 hours, when she invited “some ladies” for coffee.2284
642. W-82 stated that she was sitting outside a house on Bjela{ni~ka Street, at 1830 hours, with
four friends, when she saw a blinding flash.2285 Simultaneously, she felt something hit her right
shoulder and felt blood on her shoulder and chest, near her neck.2286 She said that there had been no
warning.2287 Edisa Kr{o stated that at about 1915 hours, she came out of her house, located at
Bjela{ni~ka Street, number 24 and stood in front of it, talking with her mother, a neighbour and her
little daughter.2288 She heard a strange noise, similar to an aircraft engine and saw a dark object
flying in the air with a trail of black smoke in a spiral shape.2289 She also stated she saw “something
like a burning ball” in the air, which hit the tallest building in the neighbourhood, a three-story
apartment building, and exploded with a loud noise.2290 Edisa Kr{o’s mother lay down on the
ground immediately, while the neighbour ran to an air-raid shelter with her daughter. Edisa Kr{o
became frightened and ran into the house, up the stairs, where a piece of broken brick hit her on the
head; she fell unconscious.2291 Edisa Kr{o regained consciousness and realised she was bleeding;
she got up and was hit on the head again, this time by a piece of gutter. She lost consciousness
2281 See supra, para. 123.
2282 W-82, 16 Feb 2007, T. 2273, 2280 – 2281, P228 (under seal), p. 2; Edisa Kr{o, P644, p. 5.
2283 Edisa Kr{o, P644, p. 5.
2284 W-82, 16 Feb 2007, T. 2281.
2285 W-82, 16 Feb 2007, T. 2265, P229 (under seal). The Trial Chamber notes that the time estimate given by this
witness was 45 minutes earlier than the time which was consistently confirmed by the other evidence pertaining to this
incident: see for example P608, Forensic report by KDZ, dated 24 July 1995, p. 1; Edisa Kr{o, P644, p. 5; P586, Expert
report Berko Ze~evi}, p. 162.
2286 W-82, 16 Feb 2007, T. 2263 – 2264, P229, p. 2 (under seal).
2287 W-82, P229, p. 3 (under seal).
2288 Edisa Kr{o, P644, p. 5.
2289 Edisa Kr{o, P644, p. 5.
2290 Edisa Kr{o, P644, p. 5. The Trial Chamber notes that it is stated in P586, Expert report Berko Ze~evi}, p. 162, that
the building hit by the projectile, Bjela{ni~ka Street 54, was two storeys high.
2291 Edisa Kr{o, P644, p. 5.
213
Case No IT-98-29/1-T 12 December 2007
again and was taken to the ]amil Mari} Hospital in Hransica by car and admitted to the intensive
care unit.2292
643. After the explosion, W-82 heard people crying and shouting.2293 She had trouble standing,
but managed to stand on the second attempt and tried to run.2294 W-82 heard her son saying that
others were also injured.2295 As she was trying to run, her neighbours grabbed her and took her to
Sokolovi} Kolonija, where she received first aid, and then brought her to the ]amil Mari} Hospital
where she stayed for three days.2296 In her first statement, dated 8 March 1997, W-82 stated that she
had been lightly injured and, in her second statement, on 22 May 2006, she said that she received
severe lacerations to her right shoulder and top of her chest.2297 Her skin had “peeled off and was
hanging down.”2298 There were two pieces of shrapnel embedded deep in her body, which still
remain.2299 W-82 still feels pain in her right shoulder and from the pieces of shrapnel inside.2300
Two of the women with whom W-82 was sitting were killed.2301 The two other women received
superficial lacerations and bruising.2302
644. Edisa Kr{o recalled that the hospital was very crowded.2303 As her injury was not very
serious, Edisa Kr{o was permitted to go home and continue her treatment there.2304 As a result of
her injury, however, Edisa Kr{o could not continue her studies or travel to Sarajevo, she had
nightmares for a month and suffered from a stomach problem and headaches up until 1997.2305 In
total, eleven people were injured and two were killed in this incident.2306
645. The house in which W-82 was staying in Bjela{ni~ka Street was “almost completely
destroyed”;2307 the top and ground floors were “badly damaged”, the framework of the doors and
2292 Edisa Kr{o, P644, pp 5, 6.
2293 W-82, P228, p. 2 (under seal).
2294 W-82, 16 Feb 2007, T. 2273, 2282, P229, p. 2 (under seal).
2295 W-82, P229, p. 2 (under seal).
2296 W-82, 16 Feb 2007, T. 2273, 2282, P229, p. 2 (under seal).
2297 W-82, P228, p. 2 (under seal), P229, p. 2 (under seal).
2298 W-82, P229, p. 2 (under seal).
2299 W-82, P229, p. 2 (under seal).
2300 W-82, P228, p. 2 (under seal). W-82’s medical certificate was admitted as item 42 of P106 (under seal).
2301 W-82, P229, p. 2 (under seal); Vekaz Turkovi}, 26 Apr 2007, T. 5212, P600, p. 3; P608, Forensic report, p. 1.
2302 W-82, P229, p. 2 (under seal).
2303 Edisa Kr{o, P644, p. 6.
2304 Edisa Kr{o, P644, p. 6.
2305 Edisa Kr{o, P644, p. 6.
2306 W-82, P229, p. 3 (under seal); P606, Criminal investigation file, dated 23 July 1995, p. 3; P586, Expert report
Berko Ze~evi}, p. 162; P436, P437, P438, P439, P440, P441, P442, P443, P444, P445, P446, P447, Medical records
from the ]amil Mari} hospital for Hajrija Tabakovi}, Admir Baru~ija, Arnes ^erkez, Adis Kr{o, Alija Mrakovi}, Mejra
Lindov, Elvedin Rahi}, Ha{ija Mrakovi}, Admir Baru~ija, Izet Bijelonja, Hasan ^erkez, Adnan Bijelonja (all under
seal). The Trial Chamber notes that in her 8 March 1997 statement, W-82 recalled that 17 people were wounded, six of
them children: W-82, P228 (under seal), p. 2.
2307 W-82, P229, p. 3 (under seal); Vekaz Turkovi}, P600, p. 3; P608, Forensic report, p. 1.
214
Case No IT-98-29/1-T 12 December 2007
windows were damaged and the roof tiles were blown away.2308 She stated that the bomb had
landed on a house 15 metres away from where she was.2309 That house was completely
destroyed.2310 Five or six nearby houses were heavily damaged as were a lot of vehicles.2311 Edisa
Kr{o saw a large hole in the house opposite hers, “as if a draft had blown through it”.2312 She stated
that “about 200 houses in the settlement”, including her house, had been damaged due to the blast
that day.2313
646. The BiH police carried out the investigation on the same day.2314 Vekaz Turkovi}, a crimescene
technician with the BiH police, found parts of rocket motors on the first floor and in the
kitchen of Bjela{ni~ka Street, number 44.2315 In his forensic report, he noted significant damage to
houses and vehicles in the neighbourhood, as well as injuries to people.2316 He conclude that a
rocket missile with a concussion warhead, that is, a modified air bomb, had landed on Bjela{ni~ka
Street, number 54.2317 He stated he was “satisfied that the deaths, injuries and damage was caused
by a device similar to the other air bombs that he had examined.”2318 During cross-examination,
Vekaz Turkovi} testified that the bodies of the two women who died had been removed when he
carried out his investigation, and this is why they do not appear in the photographs he took of the
scene.2319
647. In its Final Brief, the Defence submitted that the BiH police did not find any shrapnel on the
incident site.2320 During cross-examination, Vekaz Turkovi} conceded that there was no mention in
the BiH police report of shrapnel that could have been taken for analysis in order to determine what
kind of projectile exploded.2321
648. In his expert report, Berko Ze~evi} noted the absence of traces on the interior walls of
Bjela{ni~ka Street, number 54 and surrounding buildings, and concluded that the projectile could
not have been a FAB-250 bomb filled with conventional TNT explosives, which has “a minimum
2308 W-82, P229, p. 3 (under seal).
2309 W-82, P229, p. 3 (under seal).
2310 W-82, P229, p. 3 (under seal), P228, p. 3 (under seal); P608, Forensic report, p. 1.
2311 W-82, P228, p. 3 (under seal); P608, Forensic report, p. 1.
2312 Edisa Kr{o, P644, p. 5.
2313 Edisa Kr{o, P644, p. 6.
2314 Vekaz Turkovi}, P600, p. 3.
2315 Vekaz Turkovi}, 26 April 2007, T. 5233 – 5234, P600, p. 3; P608, Forensic report, pp 1, 3.
2316 P608, Forensic report, pp 1, 2.
2317 P608, Forensic report, pp 1, 2; The Trial Chamber notes that this type of projectile belongs to the category of air
bombs, see supra, Section II.B.2(b)(ii) Modified Air Bombs.
2318 Vekaz Turkovi}, P600, p.3.
2319 Vekaz Turkovi}, 26 Apr 2007, T. 5225; P607, Photographs.
2320 Defence Final Brief, para. 209.
2321 Vekaz Turkovi}, 26 April 2007, T. 5234, P600, p.3.
215
Case No IT-98-29/1-T 12 December 2007
of 11,000 fragments”.2322 Consistent with the BiH police finding, Berko Ze~evi} determined that
the projectile was a modified air bomb with fuel-air explosive.2323
649. W-82 did not know the direction from which the bomb came.2324 Berko Ze~evi} noted that
the Bosnian Muslim investigators determined that the incoming direction of the projectile was
north-west.2325 Based on the photographs taken at the scene, Berko Ze~evi} estimated the angle of
descent of the projectile to be 25 degrees. He estimated the direction that the projectile came from
to be about 320 degrees, that is, from a north-westerly direction, which avoided a trajectory over the
heavily-populated parts of Ilid`a.2326 Berko Ze~evi} concluded that the probable launch site of this
air bomb was in the wider area of the settlement of Osijek, over five kilometres away from the place
where the bomb landed.2327
Findings
650. On 23 July 1995, a modified air bomb exploded on Bjela{ni~ka Street. In its Final Brief, the
Defence made the argument that the BiH police report did not mention the presence of shrapnel. It
is not clear to what end this argument was made, but if it is to suggest that the absence of shrapnel
was not consistent with the use of a modified air bomb, it is sufficient for the Trial Chamber to
recall the testimony of Verkaz Turkovi} that (i) it was impossible to collect all the pieces of
shrapnel and it was standard procedure to collect an amount of evidence sufficient to establish the
type of weapon, and (ii) the BiH police collected parts of rocket motors. Evidence in this case is
that the presence of rocket motors indicates the explosion was caused by modified air bombs.
651. On the basis of the evidence, including witness testimony, medical records, and the
investigative and expert reports, the Trial Chamber is satisfied that two civilians were killed and 11
civilians were injured, some seriously, as a result of the explosion of the modified air bomb.
2322 P586, Expert report Berko Ze~evi}, p. 164.
2323 P586, Expert report Berko Ze~evi}, pp 162, 164. See also supra, para. 93.
2324 W-82, P229, p. 3 (under seal). The Trial Chamber notes that the statement of Edisa Kr{o was admitted in redacted
form pursuant to Rule 92 bis of the Rules. The Trial Chamber, in deciding on the admission of this statement, applied
the law, as set in Prosecutor v. Stanislav Gali}, where the Appeals Chamber held that “a written statement containing
conclusions by a witness “as to the direction from which the particular shell had been fired, could … be of substantial
importance to the Prosecution case if it is the vital link in demonstrating that the shell … was fired from a gun
emplacement manned by immediately proximate subordinates of the accused.” The Trial Chamber, therefore, ordered
the redaction of the section of the statement of Edisa Kr{o detailing the direction of fire, see Decision on Prosecution
Motion for Admission of Written Statements pursuant to Rule 92 bis and ter of the Rules of Procedure and Evidence,
with Confidential Annex A, dated 27 February 2007.
2325 P586, Expert report Berko Ze~evi}, p. 162. See also P606, Criminal investigation file, p. 4.
2326 P586, Expert report Berko Ze~evi}, p. 164. See also supra, para. 123.
2327 P586, Expert report Berko Ze~evi}, p. 164.
216
Case No IT-98-29/1-T 12 December 2007
652. The Trial Chamber also recalls its earlier finding that the ABiH did not have or use modified
air bombs; only the SRK possessed and used them. The Trial Chamber finds that it has been
established that the modified air bomb was fired from a north-westerly direction, from SRKcontrolled
territory and that it was launched by members of the SRK.
(xiv) Shelling of the BITAS Building on 22 August 1995
653. On 22 August 1995, the BITAS Building on Zmaja od Bosne, number 64 was shelled.2328
Sanjin Hasanefendi} did not recall any ABiH military activity in the area on 22 August 1995, nor
did he see any active ABiH forces in the area.2329 The BITAS Building was located approximately
100 metres from the Novo Sarajevo Police Station.2330 Other buildings in the immediate vicinity of
the BITAS Building and the police station included residential buildings, a post office, a Catholic
church, office buildings, the Socijalno Building and the Elektroprivreda Building.2331
654. Sanjin Hasanefendi} testified that he was at the Novo Sarajevo Police Station when the
BITAS Building was shelled.2332 There was a loud droning sound he had never heard before
followed by a powerful explosion.2333
655. At the moment of the explosion, Irhad Lukavac was in a Golf car parked outside the
building that was next to the Gol Restaurant at Zmaja od Bosne, number 66, just west of the BITAS
Building.2334 The Golf car was heavily damaged by the explosion.2335 Irhad Lukavac sustained
injuries to his chest, got out of his car and fell on the ground next to the restaurant, where citizens
gathered to help him.2336 He was put in an unidentified car and taken to hospital.2337 However, he
succumbed to his injuries on the way there and died.2338 Another car was also heavily damaged.2339
656. The Defence argued that the lack of photographs showing blood marks on the location
where Irhad Lukavac had collapsed, indicated that he was not killed at the location identified by
Sanjin Hasanefendi}.2340 However, Sanjin Hasanefendi} testified that he photographed the blood
2328 Sanjin Hasanefendi}, 16 Feb 2007, T. 2315 – 2316; P244, Official note shelling BITAS Building, dated 25 August
1995, p. 1; P230, Map marked by Sanjin Hasanefendi}; P231, Map marked by Sanjin Hasanefendi}; P232, P239,
Photograph marked by Sanjin Hasanefendi}.
2329 Sanjin Hasanefendi}, 16 Feb 2007, T. 2336, 2355.
2330 Sanjin Hasanefendi}, 16 Feb 2007, T. 2316; P239, Photograph marked by Sanjin Hasanefendi}.
2331 Sanjin Hasanefendi}, 16 Feb 2007, T. 2316 – 2317; P239, Photograph marked by Sanjin Hasanefendi}.
2332 Sanjin Hasanefendi}, 16 Feb 2007, T. 2317.
2333 Sanjin Hasanefendi}, 16 Feb 2007, T. 2317.
2334 Sanjin Hasanefendi}, 16 Feb 2007, T. 2356; P244, Official note, p. 2.
2335 P244, Official note, p. 3.
2336 Sanjin Hasanefendi}, 16 Feb 2007, T. 2356; P244, Official note, p. 2; P435, Medical record (under seal).
2337 Sanjin Hasanefendi}, 16 Feb 2007, T. 2356; P244, Official note, p. 2.
2338 Sanjin Hasanefendi}, 16 Feb 2007, T. 2356; P244, Official note, p. 2.
2339 P244, Official note, p. 3.
2340 Defence Final Brief, para. 210; Sanjin Hasanefendi}, 16 Feb 2007, T. 2356, 2357, 2358.
217
Case No IT-98-29/1-T 12 December 2007
marks inside the vehicle as evidence of the place where the victim was injured.2341 Sanjin
Hasanefendi} also testified that the victim was taken away quickly in a car.2342 Finally, he said that
the type of damage to the car clearly indicated that it had been caught in the explosion.2343
657. Another person was slightly injured; Sanjin Hasanefendi} confirmed the police report that
Alija Muharemovi} was walking down Zmaja od Bosne when the explosion occurred and he
sustained light injuries to his right lower leg.2344 He was taken to Omer Masli} Medical Centre,
where he received medical treatment and was sent home.2345 The police investigation file did not
contain medical records for this victim. In response to questions of the Defence about this, Sanjin
Hasanefendi} stated that as a forensic technician, he was not responsible for collecting medical
documentation. 2346
658. Sanjin Hasanefendi} left the police station shortly after the explosion, but returned there due
to the severity of the shelling in the Novo Sarajevo municipality.2347 As a result of the shelling,
Sanjin Hasanefendi} and his colleagues could not carry out an on-site investigation at the BITAS
Building until the next day.2348 The scene of the incident was secured by two police officers of the
Novo Sarajevo Police Station during the night of 22 August 1995.2349
659. The Trial Chamber heard evidence that the explosion created considerable damage to the
BITAS Building, in particular on the west side of the building.2350 Over twelve rooms on four floors
on the side the projectile impacted were completely destroyed, and doors, windows and walls in all
offices on both sides of the building were damaged.2351 The staircase running between the second,
third and fourth floors collapsed, and the elevator was destroyed.2352 Photographic evidence shows
that a large part of the outer wall on the west side of the building was blasted away.2353 The police
report on the incident notes that the exact number of rooms damaged by the explosion could not be
determined because the police found it impossible to enter the building.2354
2341 Sanjin Hasanefendi}, 16 Feb 2007, T. 2359.
2342 Sanjin Hasanefendi}, 16 Feb 2007, T. 2360.
2343 Sanjin Hasanefendi}, 16 Feb 2007, T. 2359 – 2360.
2344 Sanjin Hasanefendi}, 16 Feb 2007, T. 2356; P244, Official note, p. 2.
2345 P244, Official note, p. 2.
2346 Sanjin Hasanefendi}, 16 Feb 2007, T. 2352, 2353.
2347 Sanjin Hasanefendi}, 16 Feb 2007, T. 2317 – 2318.
2348 Sanjin Hasanefendi}, 16 Feb 2007, T. 2318.
2349 Sanjin Hasanefendi}, 16 Feb 2007, T. 2318, 2360; P244, Official note, p. 1.
2350 Sanjin Hasanefendi}, 16 Feb 2007, T. 2321, 2328; P244, Official note, p. 2; P241, Photograph of BITAS Building.
2351 Sanjin Hasanefendi}, 16 Feb 2007, T. 2328; P240, Photograph marked by Sanjin Hasanefendi}; P244, Official note,
p. 2.
2352 P244, Official note, p. 3; P586, Expert report Berko Ze~evi}, pp 167 – 169.
2353 P240, Photograph marked by Sanjin Hasanefendi}. See also, P586, Expert report Berko Ze~evi}, pp 167 – 169.
2354 P244, Official note, p. 3.
218
Case No IT-98-29/1-T 12 December 2007
660. The police report shows that the BITAS Building was not the only building that was
damaged; surrounding buildings to the North, South and West of the BITAS Building were all
damaged to some degree.2355 The apartment of [a}ira Jugovi}, on the fourth floor of Zmaja od
Bosne, number 66, was seriously damaged when a fragment came through the window causing a
fire in the apartment.2356 Many of the rooms burned down completely before the fire could be
extinguished.2357
661. A number of metal fragments, measuring between 30 and 120 centimetres, were determined
by the BiH Police to be parts of an explosive device which probably had been modified.2358 To the
knowledge of Sanjin Hasanefendi}, the ABiH did not possess the size or calibre of the device which
exploded on 22 August 1995.2359 The Defence put to Sanjin Hasanefendi} that it was possible that
the BITAS Building had been hit by many different projectiles around the same time. In response,
Sanjin Hasanefendi} said that this assertion was not supported by evidence, and that evidence of
one modified air bomb had been found at the scene.2360 He also rejected the Defence suggestion that
the modified air bomb could have torn through the building, causing the damage, rather than
explode inside the building.2361
662. According to the investigative team report, the first point of impact for the projectile was the
glass of the staircase in the south-west side of the BITAS Building, between the second and third
floors.2362 The subsequent explosion occurred within the building, on the staircase itself.2363 Berko
Ze~evi}, stated that the severe damage to the horizontal concrete beam above the second floor
marks the exact place where the projectile “probably entered” the building.2364 Based on the
evidence of damage to the exterior walls of the two highest floors on the north-east side of the
building, he concluded that the projectile “probably” ricocheted off the staircase, towards the third
floor before exploding.2365 According to Berko Ze~evi}, the effects of the projectile inside the
staircase bore the hallmarks of a “volumetric weapon”.2366 The effects of the projectile inside the
2355 P244, Official note, p. 3.
2356 Ibid.
2357 Ibid.
2358 Sanjin Hasanefendi}, 16 Feb 2007, T. 2322, 2354; P242, Photograph; P243, Forensic report on shelling of BITAS
Building, dated 23 August 1995, p. 2.
2359 Sanjin Hasanefendi}, 16 Feb 2007, T. 2336.
2360 Sanjin Hasanefendi}, 16 Feb 2007, T. 2354.
2361 Sanjin Hasanefendi}, 16 Feb 2007, T. 2354.
2362 P244, Official note, p. 2; P243, Forensic report, p. 2; Sanjin Hasanefendi}, 16 Feb 2007, T. 2318 – 2319, 2324;
P240, Photograph marked by Sanjin Hasanefendi}.
2363 P244, Official note, p. 2; P243, Forensic report, p. 2; Sanjin Hasanefendi}, 16 Feb 2007, T. 2318 – 2319, 2354;
P240, Photograph marked by Sanjin Hasanefendi}.
2364 P586, Expert report Berko Ze~evi}, p. 167.
2365 P586, Expert report Berko Ze~evi}, p. 168.
2366 P586, Expert report Berko Ze~evi}, p. 169.
219
Case No IT-98-29/1-T 12 December 2007
staircase were more pronounced on structures of low resistance, while there were no “pronounced
fragmentation effects”.2367
663. Sanjin Hasanefendi} stated in a document dated 10 March 1997 that the direction of fire was
“south”.2368 When confronted with this prior statement in cross-examination, Sanjin Hasanefendi}
stated that bomb squad technicians and other investigators “may always take a broader area to
describe the direction of fire.”2369
664. The BiH police determined the direction of fire with reference to the centre of the explosion
in relation to the location of air bomb fragments.2370 The forensic investigation team, including the
bomb squad technician, determined that the direction of fire of the projectile that struck the BITAS
Building was the “aggressor’s positions at Rajlovac,” to the “south-west” of the BITAS
Building.2371 Based on the police reports and the findings in other shelling incidents near the BITAS
Building, Berko Ze~evi} also concluded that the projectile came from the wider area of
Rajlovac.2372 In reaching this conclusion, he estimated the direction of fire as 275 degrees.2373 The
incoming trajectory did not run above populated areas controlled by the SRK.2374 The Trial
Chamber notes in this respect that the wider area of Rajlovac is to the west to north-west of the
BITAS Building.
665. The Trial Chamber recalls that in his report, Berko Ze~evi} indicated the effective range of a
FAB-250 was 5,820 metres to 7,680 metres.2375 Berko Ze~evi} placed the probable launch site at
approximately 6,700 metres from the point of impact.2376 He estimated that the angle of descent was
approximately 25 to 30 degrees.2377 The Trial Chamber notes that a table provided in the report of
Berko Ze~evi} shows that a modified air bomb, fired at an angle of 30 degrees, would be close to
the ground or would hit the ground at approximately 6,500 metres from the firing point and a
modified air bomb, fired at an angle of 35 degrees would be close to the ground or would hit the
ground at approximately 7, 200 metres and at relatively low angles.2378
2367 P586, Expert report Berko Ze~evi}, p. 169.
2368 Sanjin Hasanefendi}, 16 Feb 2007, T. 2349, 2350.
2369 Sanjin Hasanefendi}, 16 Feb 2007, T. 2350.
2370 Sanjin Hasanefendi}, 16 Feb 2007, T. 2324, 2327, 2328, 2330; P243, Forensic report, pp 1 – 2.
2371 Sanjin Hasanefendi}, 16 Feb 2007, T. 2324, 2356; P243, Forensic report, p. 1; P244, Official note, p. 2; P241, P245,
P247, P248, Photographs; P246, Photograph marked by Sanjin Hasanefendi}.
2372 P586, Expert report Berko Ze~evi}, pp 167 – 170. Berko Ze~evi} took into account the findings related to the
shelling of Trg Me|unarodnog, Prijateljstva Square, Geteova Street and Safeta Had`i}a Street.
2373 P586, Expert report Berko Ze~evi}, p. 169.
2374 P586, Expert report Berko Ze~evi}, p. 169.
2375 See supra, para. 95 and P586, Expert report of Berko Zeevi, pp 87 – 88.
2376 P586, Expert report Berko Ze~evi}, p. 170.
2377 P586, Expert report Berko Ze~evi}, p. 170.
2378 P586, Expert report Berko Ze~evi}, p. 88.
220
Case No IT-98-29/1-T 12 December 2007
666. The south-west direction of fire was corroborated by two eyewitnesses who saw the
projectile flying above ^engi} Vila, west of the BITAS Building.2379 Sanjin Hasanefendi} did not
know whether official statements were taken from these eyewitnesses, but knew that they spoke to
the crime police inspector.2380 However, the Trial Chamber notes that it is unclear who these
witnesses were. While witnesses Abdulah ^an~ar and Zada Borovina were identified in the forensic
report as being in the BITAS Building at the time of the explosion, Sanjin Hasanefendi} testified
that the eyewitnesses said that “they were at the time in ^engi} Vila neighbourhood.”2381
667. The Defence did not present evidence specifically challenging this shelling incident during
its case, either in cross-examination or in the presentation of its case. However, the Defence expert,
Maj. Gen. Garovi}, generally challenged the existence of modified air bombs and the existence of
fuel-air explosives.2382
Findings
668. On 22 August 1995 a modified air bomb exploded on the BITAS Building. As a result of the
explosion, it has been established that one person, a civilian, was killed and another person was
slightly injured. In this regard, the Trial Chamber recalls witness testimony and a BiH police report.
The Trial Chamber also recalls its earlier finding that the ABiH did not have or use modified air
bombs; only the SRK possessed and used them.
669. While the evidence from the witnesses as to the direction from which the modified air bomb
came was conflicting, all the areas identified as the possible origin of fire were under the control of
the SRK. The Trial Chamber is satisfied on the basis of the evidence as a whole, particularly the
consistent conclusions of the BiH police and the KDZ, as set out in their reports, and Berko
Ze~evi}, that the modified air bomb was fired from the area of Rajlovac, an area under the control
of the SRK and that it was launched by members of the SRK.
(xv) Shelling of the Markale Market on 28 August 1995
670. The weather on 28 August 1995 was clear, with a light breeze and few clouds.2383 There
were two markets on Mula Mustafe Ba{eskije Street, which according to W-137, “constituted the
2379 Sanjin Hasanefendi}, 16 Feb 2007, T. 2326, 2329 – 2330, 2334, 2347 – 2348.
2380 Sanjin Hasanefendi}, 16 Feb 2007, T. 2334, 2347 – 2348.
2381 Sanjin Hasanefendi}, 16 Feb 2007, T. 2347; P244, Official note, p. 3, reads that Abdullah ^an~ar was at his
doorman post in the BITAS building at the moment of the explosion. Zada Borovina, employee of DP BITAS, was on
the fifth floor at the moment of the explosion and was brought down by firemen.
2382 See supra, paras 99 – 101.
221
Case No IT-98-29/1-T 12 December 2007
greatest concentration of shops selling food in Sarajevo at the time.”2384 One of the markets was the
indoor market at Markale, which was about 200 metres from the other, outdoor, market. Sead Be{i}
explained that vendors sold cigarettes and various goods at the exit of Markale Market.2385 Lt. Col.
Konings, a Dutch UNMO, testified that he passed by the Markale Market early on 28 August 1995
and recalled seeing a lot of civilians gathered there, engaging in trading activities on the sidewalk
and everywhere on the street and that he “did not trust the situation”.2386 At 1110 hours that day, a
shell exploded on the street, just in front of the indoor market.2387
671. The Defence challenged the evidence regarding this incident on multiple grounds. It argued
that the incident was a staged event. In this regard it argued that an explosive device had been
planted at the Markale Market. Moreover, it challenged the total number of victims, suggesting that
bodies could have been planted in the area so as to make it appear as though many people had died
there. It also challenged the direction of fire and the angle of descent that were calculated by the
BiH police, UNPROFOR and UNMO. In doing so, it focused, inter alia, on the fact that the radar
systems around Sarajevo did not register the firing of the shell that struck the street in front the
Markale Market.
a. Number of dead and wounded
672. When he arrived at the scene, W-137 saw that all the victims of the shelling were being
rushed to hospital in the trunks of many cars, without distinction as to whether the victims were
wounded or dead. The persons collecting the bodies could not be certain that the victims were alive
and thus, he said, picked everyone up in order to get them to the hospital as fast as possible.2388
When asked by the Defence why it was permitted that the dead bodies be removed from the scene,
W-137 explained that he saw this happening right after the incident, but that the police or UN
members had not yet arrived at the scene and that it was just civilians who were evacuating the
casualties as fast as possible.2389
673. Djula Leka, a homemaker and mother of five children, was a long term resident of
Sarajevo.2390 When the shell exploded, she was just outside the Markale Market and in front of the
2383 D58, ICTY information report, dated 2 October 2003 (“ICTY information report”), p. 1; D121, ICTY information
report, dated 3 September 2003 (“ICTY information report”), p. 3; P255, Criminal investigation file, dated 29 August
1995, p. 1.
2384 W-137, 20 Feb 2007, T. 2544; D75, Photograph marked by W-137.
2385 Sead Be{i}, 20 Feb 2007, T. 2577.
2386 Harry Konings, 12 Mar 2007, T. 3587 – 3590, 13 Mar 2007, T. 3677 – 3678; D121, ICTY information report, p. 1.
2387 Sead Be{i}, 20 Feb 2007, T. 2570; Djula Leka, P650, p. 2; P21, UNPROFOR sitrep, 28 August 1995, p. 5.
2388 W-137, 20 Feb 2007, T. 2501, 2556; P255, Criminal investigation file, p. 2.
2389 W-137, 20 Feb 2007, T. 2557.
2390 Djula Leka, P650, p. 2.
222
Case No IT-98-29/1-T 12 December 2007
indoor market, about five to seven metres from the place of impact.2391 She was injured in the
explosion.2392 Djula Leka’s brother-in-law was killed in the explosion and was lying about ten
metres away from her.2393 She asked a policeman she knew to help her. He stopped a car to
transport her to the hospital but the car was “full of dead bodies” so she refused to get in it.2394 The
policeman then stopped a taxi, which transported her to the hospital.2395 Djula Leka stayed in the
hospital for four to five days.2396 She still feels some pain in her shoulder and chest as a result of the
injuries she received from the explosion.2397
674. The shell landed four or five metres behind Mesuda Klari} and Ismet Klari}.2398
Immediately after the explosion Mesuda Klari} felt like she was not fully conscious or able to see
properly what was going on.2399 When she came to, she found herself sitting on the ground with her
husband next to her.2400 He told her, “I lost my arm”.2401 She was bleeding heavily from her leg.2402
She saw a lot of people lying on the street toward the cathedral.2403 Medusa Klari} was put in a car
and her husband was put in the trunk of another car.2404 As her husband was being placed in the car,
she saw that his foot was missing and that he was also wounded in the groin.2405 In the car that took
Medusa Klari} to the hospital, there were also a young girl and a young man; she saw that the foot
of the young girl had been severed.2406 At the hospital, Medusa Klari} and Ismet Klari} were both
taken immediately to surgery. Ismet Klari} did not survive. 2407 Medusa Klari} still has pieces of
shrapnel in her body, one in her back, one near the kidney area and one below her right knee.2408
675. Milan Mandilovi}, at the time a surgeon at the State Hospital, and Bakir Naka{, who is now
the Director of the same hospital, were at the hospital on the day of the incident and recalled
receiving a large number of seriously wounded civilians. Bakir Naka{ saw about 80 victims from
the Markale Market at the hospital that day.2409 The medical staff had to resort to conducting triage
2391 Djula Leka, P650, p. 2.
2392 Djula Leka, P650, p. 2.
2393 Djula Leka, P650, p. 2.
2394 Djula Leka, P650, p. 2.
2395 Djula Leka, P650, p. 2.
2396 Djula Leka, P650, p. 2.
2397 Djula Leka, P650, p. 2.
2398 Mesuda Klari}, P648, p. 2.
2399 Mesuda Klari}, P648, p. 2.
2400 Mesuda Klari}, P648, p. 2.
2401 Mesuda Klari}, P648, p. 2.
2402 Mesuda Klari}, P648, p. 2.
2403 Mesuda Klari}, P648, p. 2.
2404 Mesuda Klari}, P648, pp 2 – 3.
2405 Mesuda Klari}, P648, p. 3.
2406 Mesuda Klari}, P648, p. 3. The Trial Chamber notes that Sead Be{i} was shown photos of the site of the explosion
and identified body parts of victims, Sead Be{i}, 21 Feb 2007, T. 2615 – 2616; P264, Photographs of impact site, dated
28 August 1995, pp 2, 3, 4, 5 and 6.
2407 Mesuda Klari}, P648, p. 3.
2408 Mesuda Klari}, P648, p. 3.
2409 Bakir Naka{, 29 Jan 2007, T. 1115.
223
Case No IT-98-29/1-T 12 December 2007
of the victims.2410 Milan Mandilovi} and Bakir Naka{ testified that a great majority of the victims
they saw were civilians and, given the place where the incident occurred, even the few persons
wearing military clothes were probably there buying groceries.2411
676. W-28, a Bosnian Muslim police investigator, went to the morgue and hospitals with “UN
observers” and a judge to verify how many people were killed or wounded.2412 He recorded that 35
persons were killed and 78 were wounded, although some of the wounded later died.2413 Sead Be{i}
testified that about 30 more persons died as a consequence of this incident and that his team found
body parts of victims, lower extremities such as feet and legs on the scene of the incident.2414 The
findings of W-28’s investigation were that 40 people were killed.2415 The Trial Chamber received
death certificates for twelve victims, including one anonymous person.2416 In addition, it received a
list containing the names of 35 deceased and 85 wounded.2417 Finally, the Defence tendered a report
of an ABiH Brigade, which stated that one of its members was killed in this incident. The report
shows that this soldier was off-duty at the time.2418
677. Lt. Col. Konings recalled that, when he arrived at the scene with his team, the bodies of the
victims had been evacuated but there were still body parts and blood everywhere.2419 The Defence
asked him whether he thought a single 120 mm mortar shell could do this type of damage. He said
that he believed it could, given the particularities of the case, such as the amount of people gathered
at the impact site, the building surrounding the site, which prevented the pressure from the blast
from getting away and the presence of a lot of glass from the windows of the buildings.2420
According to Ned`ib \ozo, Markale Market was the only place where the aggressor could kill a
great number of people with only one shell.2421
2410 Milan Mandilovi}, 17 Jan 2007, T. 573; Bakir Naka{, 29 Jan 2007, T. 1106; Sead Be{i}, 20 Feb 2007, T. 2569.
2411 Milan Mandilovi}, 17 Jan 2007, T. 573; Bakir Naka{, 29 Jan 2007, T. 1106.
2412 W-28, P275, p. 3; Rupert Smith, P334, p. 22.
2413 W-28, P275, p. 3; D10, UNPROFOR HQ daily sitrep, dated 29 August 1995 (“UNPROFOR daily sitrep, 29 August
1995”), p. 3; Lt. Col. Konings went to the morgue between 1200 and 1300 hours and recorded 38 dead, Harry Konings,
12 Mar 2007, T. 3581 – 3582; P252, Criminal investigation file by KDZ, dated 29 August 1995, p. 1; P255, Criminal
investigation file, pp 3 – 5.
2414 Sead Be{i}, 20 Feb 2007, T. 2573 – 2574, 21 Feb 2007, T. 2592 – 2593; Harry Konings, 12 Mar 2007, T. 3581;
P262, Criminal investigation sketch.
2415 W-28, P275, p. 3.
2416 P71, P72, P73, P74, P75, P76, P77, P78, P79, P80, P81, P82, Medical records respectively for an anonymous
person, Andreya Svoboda, Ru`a Gali}, Samir Marevac, Rasim Koso, Ajkuna Cokali}, Osman Leventa, D`evad Hod`i},
Zijad Bejti}, Merd`ana Obrali}, Amira Guberovi}, Samir Tupuzovi}, dated 28 and 29 August 1995.
2417 P266, Criminal investigation file, dated 29 August 1995, containing a list of names of 35 killed victims and mention
of 85 wounded.
2418 D461, Interim report on death of unit member, 112th Vite{ka Brigade, dated 28 August 1995, p. 1.
2419 D119, Statement of Harry Konings, dated 26 April 1996 (“Statement of Harry Konings”), p. 3; D120, ICTY
information report, dated 6 October 2003 (“ICTY information report”), p. 3.
2420 Harry Konings, 13 Mar 2007, T. 3639 – 3640.
2421 Ned`ib \ozo, P363, p. 3.
224
Case No IT-98-29/1-T 12 December 2007
678. One investigation was carried out by the BiH police and a team of UNMOs, including Lt.
Col. Konings.2422 Sead Be{i} was part of the BiH police team.2423 Lt. Col. Konings also participated
in a meeting to discuss the investigation with the BiH police the next day.2424 UNPROFOR also led
an investigation with a team of French UNPROFOR members.2425
b. Investigation of the Incident; Type of Shell
679. The first BIH police officers arrived within minutes after the explosion at the Markale
Market. W-137, a KDZ technician, testified that he was in the area with a colleague when he heard
a lot of cars sounding their horns. He saw “human arms and legs sticking out of the cars.” He
arrived about seven minutes after seeing the cars as he and his colleague went back to the police
station to gather their equipment.2426 He described the scene he found there as “the last, deepest
circle of Dante’s hell”.2427
680. The BiH investigators, the UNMOs and UNPROFOR all concluded that the shell that
exploded outside Markale Market was a 120 mm mortar shell.2428 Lt. Col. Konings identified the
crater as “very clear”, showing that the projectile was a mortar shell.2429 The UNPROFOR
investigations concluded that the 120 mm mortar shell was of Bosnian Serb manufacture.2430 Its
tail- fin was found between 20 and 50 metres from the place of impact, damaged and bent. There
were Cyrillic signs on it.2431 Lt. Col. Konings testified that it was expected that a tail-fin of such
mortar shells would be found at a distance from the point of impact.2432 Sead Be{i} explained that
the tail-fin could have been moved by anyone at the scene trying to help evacuate the dead and
wounded.2433
2422 Harry Konings, 12 Mar 2007, T. 3565 – 3567; D117, UNMO Patrol Report, dated 29 August 1995; D119,
Statement of Harry Konings, p. 2; D121, ICTY information report, p. 2; Sead Besi}, 20 Feb 2007, T. 2568; P255,
Criminal investigation file, p. 1.
2423 Sead Be{i}, 20 Feb 2007, T. 2568. W-137 testified that, given the gravity of the incident, the BiH investigation
lasted longer than usual, that is, for one or two hours, while the UNPROFOR French artillery experts only stayed onsite
for about 5 to 10 minutes, W-137, 19 Feb 2007, T. 2429 – 2430.
2424 Harry Konings, 12 Mar 2007, T. 3593; P266, Criminal investigation file, dated 29 August 1995, p. 1.
2425 Rupert Smith, 7 Mar 2007, T. 3336; Harry Konings, 12 Mar 2007, T. 3565 – 3567; P355, Video footage.
2426 W-137, 20 Feb 2007, T. 2549 – 2550.
2427 W-137, 19 Feb 2007, T. 2417 – 2418.
2428 P252, KDZ investigation file, p. 4; P255, Criminal investigation file, p. 1; Ghulam Muhammad Mohatarem, 19 Jan
2007, T. 732.
2429 Harry Konings, 12 Mar 2007, T. 3570; P265, Photo composition of street with impact crater.
2430 P631, UNPROFOR Sector Sarajevo final report, dated 6 September 1995 (“UNPROFOR final report”), p. 1; P357,
UNPROFOR investigation report, dated 8 September 1995 (“UNPROFOR investigation report”), P. 3; Berko Ze~evi}
confirmed that the ABiH did not have these weapons, D171, Interview of Berko Ze~evi}, dated 21, 27 June 2001, p. 2.
2431 Harry Konings, 12 Mar 2007, T. 3571; D119, Statement of Harry Konings, p. 3; Sead Be{i}, 20 Feb 2007, T. 2582;
P255, Criminal investigation file, p. 2; D120, ICTY information report, p. 3.
2432 Harry Konings, 13 Mar 2007, T. 3673.
2433 Sead Be{i}, 20 Feb 2007, T. 2584.
225
Case No IT-98-29/1-T 12 December 2007
c. Direction of Fire
681. The explosion created a crater in the road, close to the pavement; there was a lot of blood
around it.2434 Sead Be{i} testified that the shrapnel damage to both the lower part of the wall of the
Markale Market on the south side of the street and the building on the north side of the street at a
greater height; that damage along with the fact that people sustained injuries to their lower limbs on
the south side of the street, indicated that the projectile came from the south.2435 He also testified
that the fact that much less shrapnel damage appeared on the wall of the Markale Market than on
the north side could be explained by the circumstance that most victims were standing south of the
point of impact and that most of the shrapnel hit them instead of the Markale Market wall.2436
682. The ballistic expert of the BiH police, the UNMO team and the French UNPROFOR team
that conducted the initial investigation of the crater all found that the shell came from a direction of
170 degrees, that is, the direction of Trebevi}, which was SRK-held territory.2437 QMS Richard
Higgs, the Prosecution expert on mortars, upon reviewing the traces left by the mortar shell that
impacted in front of Markale Market, also concluded that the direction of fire for this round was
170 degrees.2438
683. Immediately before the shelling of the Markale Market, four other shells fell in the same
neighbourhood.2439 The investigation of these other shelling incidents was done by BiH police. As
far as W-28 could recall, all five shells came from the same direction.2440 UNPROFOR included all
five shells in its investigation. As noted above, it initially found that the direction of fire of the fifth
shell, which landed in front of the Markale Market, was 170 degrees. However, because the
direction of fire for the four other shells was determined to be between 220 and 240 degrees, the
crater was again investigated. UNPROFOR then reached the conclusion that there “was an
anomaly” with the shell that landed in front of Markale Market and that the round was fired “most
likely from 220 - 240 degrees”.2441
684. The possibility of a ricochet was discussed with several witnesses. Maj. Gen. Nicolai
recalled that the fifth shell struck the roof of a building in the vicinity of the Markale Market,
2434 W-137, 19 Feb 2007, T. 2418.
2435 Sead Be{i}, 20 Feb 2007, T. 2578 – 2580; P261, Photograph marked by Sead Be{i}; W-137, 20 Feb 2007, T. 2555
– 2556.
2436 Sead Be{i}, 21 Feb 2007, T. 2612 – 2615, D78, Photograph marked by Sead Be{i}.
2437 Thomas Knustad, 13 Feb 2007, T. 1999 – 2000; Harry Konings, 12 Mar 2007, T. 3572 – 3573; 3575 – 3576; D119,
Statement of Harry Konings, p. 3; W-28, P275, p. 3; P252, KDZ investigation file, p. 4; P255, Criminal investigation
file, p. 2; P357, UNPROFOR investigation report, pp 3, 21; P209, Map marked by Thomas Knustad.
2438 Richard Higgs, 23 Apr 2007, T. 5018.
2439 P21, UNPROFOR sitrep, 28 August 1995, p. 5.
2440 W-28, P275, p. 3; Ned`ib \ozo, P363, pp 2 -3; P255, Criminal investigation file, p. 2.
2441 P357, UNPROFOR investigation report, pp 3, 21.
226
Case No IT-98-29/1-T 12 December 2007
ricocheted off the roof and exploded in the air, causing a lot of casualties.2442 However, as to the
possibility of the fifth shell ricocheting off the roof, W-137 testified that the shell fell directly on the
street. He clarified that if the shell had hit a roof or another obstacle it would have immediately
exploded, thus leaving traces of the explosion at that location, rather than on the street.2443 He also
ruled out the possibility that the shell hit the roof, because people went up to the roof to look down
onto the scene.2444 Lt. Col. Konings also excluded the possibility that the projectile could have
ricocheted before impacting.2445 While a ricochet was theoretically possible, the projectile would
have, most likely, landed without exploding.2446
685. Lt. Col. Konings did not reach a conclusion as to the origin of fire on the day he investigated
the incident.2447 The firing point of the four other shells and the last one seemed to be different,
since it was 220 to 240 degrees, as opposed to 170 degrees, or “2.850 mils”, for the shell which
landed at the Markale Market.2448 The final conclusion of the UNPROFOR, however, was that all
five shells had been fired from the same weapon and from the Lukavica area.2449 Lt. Col. Konings
thought it was “completely possible” that the fifth mortar shell and the other four came from two
different locations, and he testified that he still believed this to be the case.2450
686. The BiH police investigators, the French UNPROFOR team and the UNMO team calculated
that the minimum angle of descent was 67 to 70 degrees.2451 QMS Higgs also concluded, on the
basis of the characteristics of the crater, that the angle of descent must have been between 67 and 70
degrees.2452 He testified that on the basis of the photographs of the scene and the conclusions of the
investigating teams, with the exception of the final UNPROFOR conclusion, the crater of the
Markale Market impact was too shallow to be able to determine the angle of descent based on the
fuse furrow.2453 The evidence of QMS Higgs showed that fuse furrows generally appear when a
mortar shell impacts on soft ground. The fuse of the shell causes a hole in the ground, typically up
to 50 centimetres deep. QMS Higgs clarified that the fuse furrow should not be used for a
determination of the direction of fire, but could be accurately used for a determination of the angle
2442 Cornelis Hendrik Nicolai, 25 Jan 2007, T. 1024 – 1025, 1028.
2443 W-137, 19 Feb 2007, T. 2420 – 2421, 20 Feb 2007, T. 2554.
2444 W-137, 20 Feb 2007, T. 2554.
2445 D120, ICTY information report, p. 3.
2446 Harry Konings, 13 Mar 2007, T. 3597 – 3599; P357, UNPROFOR investigation report, p. 3.
2447 Harry Konings, 12 Mar 2007, T. 3591 – 3593.
2448 Harry Konings, 13 Mar 2007, T. 3596.
2449 P357, UNPROFOR investigation report, p. 3.
2450 Harry Konings, 13 Mar 2007, T. 3599 – 3601, 3634 – 3635; P357, UNPROFOR investigation report.
2451 W-137, 19 Feb 2007, T. 2453; Harry Konings, 12 Mar 2007, T. 3575 – 3576; P631, UNPROFOR final report, p. 8;
P253, Sketch of the scene and minimum angle of descent, dated 29 August 1995; D119, Statement of Harry Konings, p.
3.
2452 Richard Higgs, 23 Apr 2007, T. 5019 – 5020.
2453 Richard Higgs, 23 Apr 2007, T. 5015 – 5017; P357, UNPROFOR investigation report, pp 6, 9.
227
Case No IT-98-29/1-T 12 December 2007
of descent.2454 However, the fuse furrow was the basis for the renewed calculation of the direction
of fire by UNPROFOR.2455
687. The Defence tendered an article on the incident by Bosnian Serb scientist, Miroljub
Vuka{inovi}, who wrote that, after an analysis of television footage, it was obvious that the
measurements for the calculation of angle of descent of the shell “had been altered” in order to
obtain an angle of descent at which the shell would not hit the roof of the building.2456 In the article,
he concluded that the shell explosion was most probably carried out in static conditions, at an angle
between 50 and 60 degrees. He wrote that if a shell had been fired from a VRS position at an angle
of descent of between 50 and 60 degrees, it would have exploded on the building’s roof.2457 Berko
Ze~evi}, Prosecution expert on modified air bombs, commented that, although excellent in theory,
the conclusions of this Miloljub Vuka{inovi} were erroneous because they were based on inaccurate
data. He also concluded that the angle of descent was a minimum of 70 degrees and agreed with
Miroljub Vuka{inovi}’s position that if a shell had arrived at an angle of 50 to 60 degrees, the
projectile would have struck the roof of the building.2458
d. Origin of Fire
688. W-137’s conclusion was that the shell came from the slopes of Mount Trebevi}, which were
controlled by the SRK.2459 UNPROFOR initially also arrived at this conclusion from their
investigation.2460 However, the UNPROFOR investigations concluded that the shell had come from
“2850 mils”, an area located a few kilometres east of Lukavica.2461 Gen. Smith stated that, after the
investigation, he decided that “the rounds came from the Serb side.”2462 None of the reports, either
from the BiH police or from UNPROFOR, concluded that the shell had been launched from ABiHheld
territory.2463 The Defence put to David Harland that the first investigative report was that there
was doubt about the origin of fire because it was impossible to determine the level of charge used to
fire the projectiles. However, he testified that Gen. Smith had asked for a review of the report and
2454 Richard Higgs, 23 Apr 2007, T. 5010 – 5011.
2455 P357, UNPROFOR investigation report, p. 3.
2456 D175, Article on ballistic analysis of the Markale Market II incident by Miroljub Vuka{inovi} (“Article by Miroljub
Vuka{inovi}”), p. 3.
2457 D175, Article by Miroljub Vuka{inovi}, p. 16.
2458 Berko Ze~evi}, 23 Apr 2007, T. 4936 – 4937.
2459 W-137, 19 Feb 2007, T. 2433 – 2434.
2460 P21, UNPROFOR sitrep, 28 August 1995, p. 5.
2461 P631, UNPROFOR final report, pp 1, 9.
2462 Rupert Smith, P334, p. 22.
2463 Rupert Smith, 7 Mar 2007, T. 3336.
228
Case No IT-98-29/1-T 12 December 2007
David Harland was there when the technical team found, “beyond reasonable doubt”, that the shell
had been fired from Bosnian Serb positions.2464
689. Lt. Col. Konings considered the possibility that the round had been fired from ABiH-held
territory with one charge attached to the shell but rejected this as not being “normal military
behaviour”.2465 In his report, he noted that the BiH police team “worked very hard” to convince the
UNMOs that the round came from Bosnian Serb-held territory before he had decided on the most
probable firing position.2466 Lt. Col. Konings later based his conclusion that the shell had come
from Bosnian Serb-held territory on the fact that no UNMO had recorded any shell coming from
within the frontline, that no radar had recorded the launching which indicated that the trajectory was
below the beam of the radar and that it was a long range shot. With regard to the latter, the acoustic
system did not pick up any firing and, therefore, the launching point must have been far away.2467
Further, Lt. Col. Konings explained that had this projectile been fired with the lowest charge of
zero, the origin of fire would have been near OP-1.2468 The Trial Chamber notes that OP-1 was
located at ^olina Kapa overlooking the central downtown area of Sarajevo.2469
690. The UNMOs Lt. Com. Thomas Knustad and Maj. Paul Conway were posted at OP-1 and
they heard an impact and explosion after which they observed smoke coming from the area of
Markale, about 2,000 metres from where they were. Lt. Com. Knustad was confident that the round,
which resulted in the explosion that he heard and observed from his post, was not fired from within
his area of responsibility.2470 Lt. Com. Knustad estimated that the maximum distance at which a 120
mm mortar shell can be heard is at least four to five kilometres.2471 He therefore excluded the
possibility that the shell was fired from within ABiH-held territory because he would have heard
it.2472 In this respect, Defence expert Maj. Gen. Garovi} conceded that mountains or hills would
muffle or deflect the sound, if the mountains or hills were along the shell’s trajectory.2473
691. QMS Higgs testified that, depending on the type of charge used, there were four ranges that
the mortar shell could have been fired from: 900, 1,600, 2,400 or 3,000 metres. The first possibility
placed the launch close to an urban area, where many people would have heard the launching, the
2464 David Harland, 16 Jan 2007, T. 433, 436.
2465 D119, Statement of Harry Konings, p. 4.
2466 Harry Konings, 13 Mar 2007, T. 3616 – 3617; P85, Handwritten UNMO report, dated 28 August 1995, p 2.
2467 Harry Konings, 13 Mar 2007, T. 3602 – 3603, 3622, D119, Statement of Harry Konings, p. 4; D121, ICTY
information report, p. 2; Rupert Smith, 7 Mar 2007, T. 3336 – 3337; Richard Higgs, 24 Apr 2007, T. 5092; W-156, 27
Apr 2007, T. 5393 (closed session); P255, Criminal investigation file, p. 2.
2468 Harry Konings, 12 Mar 2007, T. 3585 – 3586.
2469 D120, ICTY information report, p. 2.
2470 Cornelis Hendrik Nicolai, 25 Jan 2007, T. 1025 – 1026; Thomas Knustad, 13 Feb 2007, T. 1993 – 1995, 1996 –
1997; D58, ICTY information report, p. 1.
2471 Thomas Knustad, 13 Feb 2007, T. 2003 – 2004.
2472 Thomas Knustad, 13 Feb 2007, T. 2004 – 2006; 2023, 2039, 2048 – 2049.
229
Case No IT-98-29/1-T 12 December 2007
second one placed it between frontlines, which, in the view of the witness, was tactically unsound,
and the third one, at 2,400 metres, placed it on higher ground in SRK-held territory, which was,
according to QMS Higgs, the most probable location.2474 He also testified that, although the
downtown area was visible from that distance, the exact location of the Markale Market was hidden
by the buildings surrounding it but he believed it was still possible to target that area because at the
time both warring parties most likely had pre-recorded targets.2475 W-137 testified that mortars were
very accurate weapons, which allowed targeting precise enough to hit a particular street and that the
Bosnian Serbs were very good at targeting with them.2476
692. The inner-city neighbourhood where the five shells fell on 28 August 1995 was a civilian
area without any military activity.2477 Lt. Com. Knustad stated that he could not imagine what could
actually have been the target of these rounds.2478 QMS Higgs testified that there was no military
advantage to firing a single round into a built-up area and that the goal was probably to terrorise the
civilian population.2479 Lt. Col. Konings testified that, after spending five months in Sarajevo and
observing the use of mortars shells, this incident fitted perfectly the pattern of mortar rounds fired
anywhere on the city, not aimed at military targets and in the form of a “harassing fire against the
civilians.”2480
693. The Defence emphasised that the radars around Sarajevo did not register the shell that struck
the street outside the Markale Market. In his article that was tendered by the Defence, Miroljub
Vuka{inovi} noted that the shell was neither heard by the UNMOs, nor detected by the radars
monitoring artillery fire.2481 W-137 testified that the French UNPROFOR contingent had provided a
radar system to Sarajevo at the beginning of the war, which broke down shortly thereafter.2482
According to him, without the radar, no one could locate precisely the origin of fire but it was
established that the ABiH had not been firing any mortars on that day.2483 The Defence put to him
that the Dutch and the British also had radar systems and that these did not register a single shell
that fell in the area that day; W-137 would not comment on that.2484 Lt. Col. Konings testified that
he knew of a British Cymbeline radar system as well as one operated by the French but that they
2473 Desimir Garovi}, 24 Aug 2007, T. 9188 – 9189.
2474 Richard Higgs, 24 Apr 2007, T. 5024 – 5028, 5055 – 5056; 5105.
2475 Richard Higgs, 24 Apr 2007, T. 5028 – 5030.
2476 W-137, 20 Feb 2007, T. 2547 – 2548, 2550 – 2551.
2477 W-28, P275, p. 3; D119, Statement of Harry Konings, p. 4; P255, Criminal investigation file, p. 2.
2478 Thomas Knustad, 13 Feb 2007, T. 1998.
2479 Richard Higgs, 24 Apr 2007, T. 5030.
2480 Harry Konings, 13 Mar 2007, T. 3623 – 3624, 3636 – 3637.
2481 D175, Article by Miroljub Vuka{inovi}, p. 1.
2482 W-137, 19 Feb 2007, T. 2432.
2483 W-137, 19 Feb 2007, T. 2433.
2484 W-137, 20 Feb 2007, T. 2552 – 2553.
230
Case No IT-98-29/1-T 12 December 2007
were in the UNPROFOR chain of command with which they had no contact.2485 Maj. Gen. Nicolai
commented that normally the radar would have registered the shell, but he immediately noted that
the coverage of the radar “might not have been 100 per cent.”2486 The UNPROFOR report on this
incident, however, clarified why the launch of the mortar was not recorded: it read that the radar
was set to detect the trajectory of a mortar fired at a distance of 950 metres or less. Any round fired
from a distance between 1,500 and 3,000 metres would have had a trajectory that would have
passed under the radar beam.2487 The report noted that the distance to the confrontation line from
the impact point was 1,050 metres.2488
e. Military Activities on 28 August 1995
694. According to Bakir Naka{, 28 August 1995 was a peaceful day.2489 However, an
UNPROFOR report shows that on 28 August 1995 there was ongoing military activity in several
places in and around Sarajevo, and a total of 1,746 firing incidents were recorded, as well as a high
number of explosions. At approximately 1230 hours, a church in Ilid`a was hit, killing members of
a wedding party. More shelling between the ABiH and VRS ensued, that lasted the entire day, with
the VRS reportedly doing most of the shelling. By 2000 hours, another five “rockets” had been
fired “toward downtown again.”2490
f. Defence Submission of Tampering
695. Between the shelling of the Markale Market and the start of the NATO bombing in the night
of 29 August 1995, Gen. Smith had three conversations with Gen. Mladi}, during which Gen.
Mladi} denied responsibility for the shelling and requested an inquiry.2491 In these three
conversations, Gen. Mladi} denied that the VRS had shelled the market and said that it was a
Bosnian Muslim attack designed to discredit the VRS.2492 In the first conversation, Gen. Mladi}
urged Gen. Smith to set up a joint investigation team, comprising UNPROFOR, BiH and Bosnian
Serb representatives.2493 Gen. Smith agreed to consider doing so but told Gen. Mladi} that all the
information he had indicated that it was a Bosnian Serb attack.2494 In the second conversation, Gen.
2485 Harry Konings, 13 Mar 2007, T. 3666.
2486 Cornelis Hendrik Nicolai, 25 Jan 2007, T. 1024 – 1026, 1027.
2487 P357, UNPROFOR investigation report, p. 3.
2488 P357, UNPROFOR investigation report, p. 3.
2489 Bakir Naka{, 29 Jan 2007, T. 1106.
2490 P21, UNPROFOR sitrep, 28 August 1995, pp 1, 5.
2491 Rupert Smith, P334, p. 22; P733, SRK order dated 28 August 1995, requesting troops to report firing at Sarajevo
between 1000 and 1200 hours with weapons of 80 mm calibre and more, p. 1.
2492 Cornelis Hendrik Nicolai, 25 Jan 2007, T. 1015 – 1016; Rupert Smith, P334, p. 22.
2493 Rupert Smith, P334, p. 22.
2494 Rupert Smith, P334, p. 22.
231
Case No IT-98-29/1-T 12 December 2007
Mladi} reported to Gen. Smith that his investigations had concluded that no VRS forces were
involved in the attack.2495 Gen. Smith told Gen. Mladi} that the UNMO investigation had
established that the round responsible for killing the victims was a 120 mm mortar round, probably
fired from the south.2496 Gen. Mladi} again requested that a joint commission be established to
investigate the attack which he believed would “vindicate” his forces.2497 In the third conversation,
Gen. Smith informed Gen. Mladi} that it was beyond reasonable doubt that the shells had come
from the SRK territory and that the firing point was between 3.5 and 4 kilometres south-west of the
impact point.2498 Gen. Mladi} again denied that the shell had originated from SRK firing positions.
Gen. Smith did not believe him.2499 Gen. Mladi} again stated that there were a number of
indications to suggest that the shelling had been orchestrated by the BiH.2500 There is no evidence
that a joint investigation was ever undertaken.
696. W-137 was asked by the Defence if it was possible that the crater outside the Markale
Market could have been tampered with. He rejected this possibility because he thought it was
impossible for anyone to have tampered with the crater given the number of people present at the
scene and trying to help the victims.2501 Furthermore, he testified that the crime scene was secured
by police officers who did not allow anyone near the crime-scene until the BiH police investigation
team arrived.2502 Sead Be{i} was asked why no vehicle was hit when the shell exploded and he
answered that one motorcyclist was hit and that it was not a very busy street at the time. He was
also asked whether a vehicle could flatten the tail-fin of the shell in the manner the tail-fin found at
the scene was flattened. Sead Be{i} testified that while it was possible, it was absolutely not true
that the shell was planted and exploded there.2503 The Defence also questioned the presence of
bicycles against the wall of the building of the south side of the street which did not seem to have
been damaged at all. W-137 explained that they were probably not there when the shell landed but
had been put against this wall later, in order to make way for the vehicles which were evacuating
the victims.2504 The Trial Chamber notes that video footage taken immediately after the incident
shows that one bicycle was already standing against the wall of the Markale Market and that a
2495 Rupert Smith, P334, p. 22.
2496 Rupert Smith, P334, p. 22.
2497 Rupert Smith, P334, p. 22.
2498 Rupert Smith, P334, p. 23.
2499 Rupert Smith, 7 Mar 2007, T. 3337 – 3338, P334, p. 23; Cornelis Hendrik Nicolai, 25 Jan 2007, T. 1021.
2500 Rupert Smith, P334, p. 23.
2501 W-137, 19 Feb 2007, T. 2418 – 2419.
2502 Sead Be{i}, 20 Feb 2007, T. 2569.
2503 Sead Be{i}, 21 Feb 2007, T. 2619 – 2621.
2504 W-137, 20 Feb 2007, T. 2554 – 2555; P250 Photograph of impact site marked by W-137.
232
Case No IT-98-29/1-T 12 December 2007
person later moved another bicycle from the street and placed it against the wall of the Markale
Market.2505
697. Defence expert Maj. Gen. Garovi} testified that it was impossible for a 120 mm mortar shell
to kill approximately 43 persons. He disagreed with the Prosecution that people located beyond 50
to 70 metres from a 120 mm explosion site would sustain injuries.2506 It would normally kill about
ten persons and the others would not even be wounded.2507 Ivica Milosavljevi}, Defence expert on
forensic medicine, testified that he could not be certain that the victims were killed at the spot
where it is alleged that they lost their lives.2508 Based on photographs of the victims, Ivica
Milosavljevi} identified wounds caused by gunshots at a range of less than one metre, rather than
shrapnel wounds.2509 However, he also testified that some of the photographs showed wounds
inflicted by shrapnel.2510
698. Ivica Milosavljevi} also reviewed video footage shot at the scene right after the incident and
concluded that a victim seen on the footage was probably not killed at the scene because a victim
appeared in a location where previously only a cardboard box was visible.2511 He further testified
that the basis of his assumption that the victims’ bodies had been placed at the scene was that, on
the video footage, victims seemed to be moved and, in some instances, there was a lack of blood
marks.2512 Ivica Milosavljevi} accepted that, when asked by the Prosecution, that he did not see any
autopsy report, but he explained that no such reports were included in the material provided to him
by the Defence for review. He was concerned about this because “a forensic medical examination in
the absence of this type of documentation is simply impossible.”2513 He agreed with the Prosecution
that shrapnel comes in different sizes and shapes and it is not the only thing that can kill a person at
an explosion scene.2514
699. The Defence suggested to W-137 that the victims were not killed at the location of the
incident. W-137 said this was “absolutely untrue” and said that “pieces of brain, of skulls, of fingers
were found”, that shrapnel “severed off people’s feet completely” and that there were so much body
parts on the crime scene that, “had this been planted, it would have been noticed by hundreds of
2505 P622, Videoclip of events in Sarajevo; P623, Videoclip of events in Sarajevo.
2506 Desimir Garovi}, 24 Aug 2007, T. 9186.
2507 Desimir Garovi}, 24 Aug 2007, T. 9227, D368, Sketch of mortar kill radius made by Desimir Garovi}.
2508 Ivica Milosavljevi}, 27 Aug 2007, T. 9256; P623, Videoclip of events in Sarajevo.
2509 Ivica Milosavljevi}, 27 Aug 2007, T. 9258, 9259 – 9261, 9266, 9269, 9271; D370, Photograph marked by Ivica
Milosavljevi}; D371 Photograph marked by Ivica Milosavljevi}.
2510 Ivica Milosavljevi}, 27 Aug 2007, T. 9262 – 9263.
2511 Ivica Milosavljevi}, 27 Aug 2007, T. 9275 – 9279, 9316 – 9317.
2512 Ivica Milosavljevi}, 27 Aug 2007, T. 9306 – 9309.
2513 Ivica Milosavljevi}, 27 Aug 2007, T. 9290 – 9291, 9297 – 9298, 9300; 9313 – 9314.
2514 Ivica Milosavljevi}, 27 Aug 2007, T. 9302 – 9304.
233
Case No IT-98-29/1-T 12 December 2007
witnesses. So both theoretically and practically it was impossible.”2515 Lt. Col. Konings also
testified that, in his view, it was not possible to stage this shelling incident by bringing and
unloading dead bodies from elsewhere, given the many people he saw gathered at Markale that
morning and the fact that no other similar incident had been previously reported in which so many
persons were killed.2516 However, he did confirm that there were rumours at the time that bodies
were occasionally planted but he did not comment on the veracity of these rumours.2517
700. Maj. Gen. Garovi} testified that, on the basis of photographs, the crater appeared to be two
centimetres deep; in his view, that could indicate that the shell came in at a low velocity, or that it
was set off in static conditions.2518 He agreed with the determination of the direction of fire of about
175 degrees and thought it impossible to make a mistake regarding this direction.2519 He also
assessed two sketches of the incident made by the investigators, which he deemed to be inaccurate.
Maj. Gen. Garovi} used the “photogrametric method” in order to assess the measurements made at
the scene by the investigators.2520 He established measurements of the scene on the basis of the
panoramic photographs and applied them to the two sketches and concluded that, according to his
calculations, it was impossible for the shell to land on the street without hitting the roof of the
Markale Market.2521 However, Maj. Gen. Garovi} agreed that it was possible that the shell did not
hit the building.2522 He further accepted the Prosecution’s proposition that he was never present at
the site of the explosion and, therefore, did not take his measurements at the scene, unlike the
investigators whose results he disagreed with.2523 He also said that he was “acquainted with
photogrametrics”, but was not an expert in the field.2524
701. The Prosecution suggested that Maj. Gen. Garovi} used firing tables for a different kind of
projectile from the one that exploded at the Markale Market.2525 Maj. Gen. Garovi} testified that,
although the difference between the two different projectiles warranted different firing tables and
the ranges may vary, it did not make a difference with regard to ballistics.2526 He also accepted the
Prosecutor’s proposition that he had not reviewed any evidence suggesting that this was a static
explosion, or encountered any person who suggested that he or she planted an explosive device at
2515 W-137, 20 Feb 2007, T. 2557.
2516 Harry Konings, 12 Mar 2007, T. 3588 – 3590; D121, ICTY information report, p. 2.
2517 Harry Konings, 13 Mar 2007, T. 3643.
2518 Desimir Garovi}, 23 Aug 2007, T. 9135.
2519 Desimir Garovi}, 23 Aug 2007, T. 9136.
2520 Desimir Garovi}, 23 Aug 2007, T. 9144; D175, Article by Miroljub Vuka{inovi}, p. 1; D367, Photograph of
Markale Market marked by Desimir Garovi}.
2521 Desimir Garovi}, 23 Aug 2007, T. 9136 – 9138, 24 Aug, T. 9209 – 9212; P253, Sketch of the scene and minimum
angle of descent, 29 August 1995; P254, Sketch marked by W-137.
2522 Desimir Garovi}, 23 Aug 2007, T. 9141.
2523 Desimir Garovi}, 24 Aug 2007, T. 9203 – 9204.
2524 Desimir Garovi}, 24 Aug 2007, T. 9204.
2525 Desimir Garovi}, 24 Aug 2007, T. 9180 – 9183.
234
Case No IT-98-29/1-T 12 December 2007
the scene; this possibility was a guess on his part.2527 However, Maj. Gen. Garovi} testified that,
based on the visible traces and the documentation, he believed preparations for a static explosion
were carried out.2528 In these circumstances, he testified that there would be no important distinction
between the projectile flying in at low velocity or exploding in static conditions.2529
702. The Defence put to W-137 that the five shells that fell in the area of Markale Market on 28
August 1995 “were in fact explosions that were planted and activated by telecommand, … and
there were no victims at all when these explosions occurred.” W-137 vehemently denied this
submission.2530 QMS Higgs also testified that it was very unlikely the mortar shell had been planted
and fired in a static position at the location because there were no traces of elements which would
have been necessary to accomplish this: a frame would have been needed to hold the shell in
position and there was no trace of secondary debris; the shell would have needed to be fired, either
by a secondary charge or by removing the fuse and placing a charge in it, which would have
affected the pattern of the crater.2531 He disagreed with the Defence proposition that the logical
conclusion to draw from the evidence that no one had heard the shell and no radar system had
recorded it, was that the shell had been planted at the location.2532
g. Evidence of Col. Andrey Demurenko
703. Defence witness Col. Andrey Demurenko, Chief of Staff of UNPROFOR Sector Sarajevo in
1995, testified that he was at the UNPROFOR headquarters in the PTT Building when the
explosion occurred and that he went to the site of the incident to observe the crater and give
instructions to the UNPROFOR members working at the site, following which he went back to the
headquarters.2533 Upon his return to the headquarters, he learned that the spokesperson for
UNPROFOR in BiH had declared in a press conference that the SRK was responsible for the
incident at the Markale Market.2534
704. Col. Demurenko presented to the Trial Chamber an order from Gen. Bachelet, in which it is
said that the shelling of Sarajevo would be used for appropriate NATO air strikes. In Col.
Demurenko’s opinion, this meant that the shelling could be used as a pretext for NATO air
2526 Desimir Garovi}, 24 Aug 2007, T. 9180 – 9183.
2527 Desimir Garovi}, 24 Aug 2007, T. 9212 – 9214, 9215 – 9217.
2528 Desimir Garovi}, 24 Aug 2007, T. 9212 – 9215.
2529 Desimir Garovi}, 24 Aug 2007, T. 9214 – 9215.
2530 W-137, 20 Feb 2007, T. 2553 – 2554.
2531 Richard Higgs, 24 Apr 2007, T. 5031 – 5032, 5109 – 5110.
2532 Richard Higgs, 24 Apr 2007, T. 5094.
2533 Andrey Demurenko, 5 July 2007, T. 7679, 6 July 2007, T. 7739.
2534 Andrey Demurenko, 5 July 2007, T.7679 – 7680.
235
Case No IT-98-29/1-T 12 December 2007
strikes.2535 In this regard, he testified that the press conference given by the UN spokesman shortly
after the incident, in which it was alleged the SRK was responsible, was “another signal” to the
same effect, “saying that NATO air strikes had been pre-planned and the only thing they were
waiting for was a reason, was a justification.”2536 It prompted him to undertake his own
investigation, in order not to “let the Serbs be blamed for everything, without trying to be
impartial.”2537 The group of people he worked with in his investigation were all Russian
nationals.2538 They worked for three days, from 29 to 31 August 1995, and reached conclusions on 1
September 1995.2539
705. The investigation concluded that the SRK could not have fired the shell.2540 Col. Demurenko
testified that he tried to communicate the result of his investigation to Gen. Bachelet but that he was
discouraged by his Aide de Camp, a Canadian officer, who told him that there was no chance his
conclusions would be made public.2541 No one witnessed the conversation between Col. Demurenko
and the Aide de Camp.2542 Col. Demurenko testified that he did not look for a possibility to
approach Gen. Bachelet.2543 However, he decided to publicise the results of his investigation and,
on 2 September 1995, gave an interview with Associated Press.2544 Col. Demurenko testified that,
he received death threats the following day from Capt. Salajdzi}, an ABiH liaison officer.2545
However, he testified that he did not report this to anyone.2546
706. Lt. Col. Konings stated that he had heard about a senior UN official claiming publicly that
the shell came from within the confrontation lines and he remembered being annoyed because that
person had not participated in the investigation and could therefore, in his view, not comment on
it.2547 When confronted with the results of Col. Demurenko’s investigation that there was “one
chance in one million that this shell came from Bosnian Serb held territory”, David Harland
testified that Col. Demurenko’s assessment was deemed factually incorrect by a team of experts of
the UN.2548
2535 Andrey Demurenko, 21 Aug 2007, T. 8981.
2536 Andrey Demurenko, 21 Aug 2007, T. 8984.
2537 Andrey Demurenko, 5 July 2007, T. 7681, 21 Aug 2007, T. 8984. He first obtained authorisation to proceed with
the investigation with his superior, Gen. Bachelet: Andrey Demurenko, 5 July 2007, T. 7697.
2538 Andrey Demurenko, 6 July 2007, T. 7758 – 7759.
2539 Andrey Demurenko, 5 July 2007, T. 7692.
2540 Andrey Demurenko, 5 July 2007, T. 7693.
2541 Andrey Demurenko, 5 July 2007, T. 7697, 6 July 2007, T. 7768.
2542 Andrey Demurenko, 6 July 2007, T. 7769.
2543 Andrey Demurenko, 6 July 2007, T. 7773 – 7774.
2544 Andrey Demurenko, 5 July 2007, T. 7697 – 7698, 6 July 2007, T. 7750; D356, UNPROFOR memo, dated 29 Aug
1995, p. 1.
2545 Andrey Demurenko, 5 July 2007, T. 7714 – 7715.
2546 Andrey Demurenko, 5 July 2007, T. 7716 – 7717.
2547 D121, ICTY information report, p. 3.
2548 David Harland, 16 Jan 2007, T. 434.
236
Case No IT-98-29/1-T 12 December 2007
707. David Harland testified that Gen. Smith, upon his advice, gave a press statement that his
investigation showed that it was not clear who had fired the shell. He knew at the time that the shots
came from SRK-held territory but, because he was planning to call for NATO air strikes, he chose
to make that statement so as not to alert the Bosnian Serbs and allow for some time to evacuate UN
personnel from Bosnian Serb-held territory.2549 Brig. Mohatarem testified that the air strikes were
requested but they were called off within 24 hours, on 30 August 1995, because of Col.
Demurenko’s public declaration about the origin of the shots. A verification of all agencies’ initial
investigations was called for and it reached the same conclusions as initially, except for a
discrepancy with regard to the angle of the shot that made many casualties.2550
708. Col. Demurenko did not dispute the technical findings of the BiH police or other
investigators as to the direction of fire or the angle of descent. He did, however, disagree with the
conclusion of the “UN experts” regarding the origin of fire. After visiting the locations of the
possible firing positions, he questioned whether they were suitable for mortar launching.2551
709. Col. Demurenko’s team, using firing tables, first established all the possible firing
locations.2552 In response to the Prosecution, who put to him that the tables that were used were for
M52 mortar shells while the evidence pointed to the use of a M74 shell, he testified that the firing
tables were identical for these two types of shells.2553 Col. Demurenko’s team then went to the
possible firing locations, which were in the direction of fire established by all the investigations and
on Bosnian Serb-held territory, and took photographs at these locations. His team concluded that it
was not possible to fire from any of them.2554 Col. Demurenko was unable to find all of the
photographs he had taken at the time.2555 He testified that there were stones in three of these firing
positions, making it impossible to secure a plate at these locations, while the fourth location was in
a wooded area through which the shell could not have passed.2556 Col. Demurenko also pointed to
locations on a map showing very steep slopes, on which it was impossible to place a mortar.2557
2549 David Harland, 16 Jan 2007, T. 434 – 435.
2550 Ghulam Muhammad Mohatarem, 19 Jan 2007, T. 718 – 719, 730 – 732, 734 – 735.
2551 Andrey Demurenko, 5 July 2007, T.7699 – 7703, 21 Aug 2007, T. 8943, 8947 – 8948.
2552 Andrey Demurenko, 6 July 2007, T. 7759.
2553 Andrey Demurenko, 21 Aug 2007, T. 8944 – 8945; P252, KDZ investigation file, p. 2; P925, Still from the video
interview of Andrey Demurenko.
2554 Andrey Demurenko, 5 July 2007, T. 7699 – 7703; D357, D358, Colour photographs of Andrey Demurenko pointing
to wooded area; D359, Colour photograph of Andrey Demurenko pointing to open field; P927, Colour photograph with
Andrey Demurenko pointing towards vantage point; P922, Sketch from Andrey Demurenko with handwritten notes
showing mortar trajectories.
2555 Andrey Demurenko, 21 Aug 2007, T. 8959.
2556 Andrey Demurenko, 5 July 2007, T. 7704 – 7705, 21 Aug 2007, T. 8991.
2557 P807 Military map of Sarajevo area marked by Andrey Demurenko; Andrey Demurenko, 6 July 2007, T. 7789 –
7790.
237
Case No IT-98-29/1-T 12 December 2007
710. The Prosecution questioned Col. Demurenko extensively about the locations he visited with
his team and repeatedly asked at where, in relation to the Markale Market, the locations were found.
Col. Demurenko explained during cross-examination that he could no longer recall exactly which
line was established as the direction of fire; he refused to say whether it was 170 or 176 degrees.
However, he said that “based on the material …, they made theoretical calculations as to the line
that had to be verified and that was related to the initial investigation by the Bosnian authorities and
UNPROFOR.”2558 A diagram that was drawn by Col. Demurenko shows that he visited locations
that were along one line, with a bearing of 2850 mils. The diagram also contains lines to show a
margin of error, but does not show that Col. Demurenko visited any points between the line at 2850
mils and the margins of error.
711. The Prosecution showed Col. Demurenko a series of photographs taken recently at the
possible firing positions at a bearing of 176 degrees from the Markale Market but he could not
confirm that these were the places he had visited twelve years earlier.2559 One of the photographs
showed a meadow.2560 Col. Demurenko testified that although he visited a meadow during his
investigation, he did not find any traces of a mortar launcher, such as marks in the ground or traces
of gunpowder.2561 Col. Demurenko explained during examination-in-chief and re-examination that
he could calculate possible firing locations with a margin of error of ten to 15 metres, and this
enabled him to visit the locations and look in their immediate vicinity for signs of mortars.2562 The
Prosecution showed Col. Demurenko one of the photographs he himself had taken at one of the
locations he and his team visited. Col. Demurenko agreed that, from this location, there was a view
of the city of Sarajevo and it was possible to fire a mortar or even a tank directly at the city.2563
712. Finally, with regard to his investigation, Col. Demurenko testified in cross-examination that
he had kept the results of his investigation in his personal archives but there was no final report
because the conclusion of the team’s work “boiled down to one sentence. The statement made by
the Spokesperson is false. This could not have been a shell from the Serb side.”2564
713. Col. Demurenko also explained his view of what had taken place at the Markale Market. He
testified that the chances that “the first shell” of a round of shells aimed at a narrow street would hit
that street are “one in a million”.2565 According to him, there were indications that this was not a
2558 Andrey Demurenko, 21 Aug 2007, T. 8999.
2559 P923, P926, Photographs taken in the area of Mount Trebevi}; Andrey Demurenko, 21 Aug 2007, T. 8956 – 8957,
8962.
2560 P923, Photograph taken in the area of Mount Trebevi}.
2561 Andrey Demurenko, 21 Aug 2007, T. 8956 – 8957, 8964 – 8965.
2562 Andrey Demurenko, 5 July 2007, T. 7706, 21 Aug 2007, T. 8992.
2563 Andrey Demurenko, 21 Aug 2007, T. 8969.
2564 Andrey Demurenko, 6 July 2007, T. 7760, 7765 – 7766.
2565 Andrey Demurenko, 5 July 2007, T. 7708.
238
Case No IT-98-29/1-T 12 December 2007
shelling incident but, rather, an explosion caused by “terrorists”; one shell had caused many
casualties while four others on that same day had not, and that was the second occurrence of such
an incident causing many casualties in the vicinity of the Markale Market between 1994 and 1995.
He also deemed it improbable that a mortar shell and its fragments would kill over 100 people.
Furthermore, he noted that there were no traces of the shell recorded by the radar systems in
Sarajevo.2566 Consequently, while a mortar shell dropped from a rooftop would not explode, he
explained that an explosion could be simulated by using a different explosive device to fire the shell
and that the crater would look similar to that of an actual mortar shell launched from far away.2567
Findings
714. There are many areas of controversy surrounding this incident. However, the Trial Chamber
begins with one area which is non-controversial. On 28 August 1995, at 1110 hours, there was an
explosion on Mula Mustafe Ba{eskije Street, just outside the Markale Market.
715. The following areas are hotly contested by the Parties: (i) the calibre of the mortar; (ii)
whether the mortar was fired from another location, as argued by the Prosecution, or planted at the
scene, as argued by the Defence; (iii) if fired from another location, whether the mortar was fired
from SRK-held territory.
716. The Prosecution led evidence from W-28, W-137, Sead Be{i}, Lt. Col. Konings, Maj. Gen.
Nicolai and QMS Higgs, and presented documentary evidence, that a 120 mm mortar shell that
struck the street in the vicinity of Markale Market, killing 35 persons and wounding 78, was fired
from SRK-held territory.
717. Defence witness, Maj. Gen. Garovi} put the general Defence case of tampering by testifying
that it was impossible for a 120 mm mortar to kill 43 persons. He also testified that, on the basis of
the photographs, which showed the crater to be about two centimetres deep, the shell came in at a
low velocity or it was set off in static conditions. In cross-examination, he agreed he was never
present at the scene and did not take measurements at the scene, unlike the investigators, with
whose results he disagreed. The Trial Chamber observes that Maj. Gen. Garovi}’s conclusions were
based on his use of the photogrametric method to assess the measurements made at the scene by the
investigators. In cross-examination, he said he was “acquainted” with the method but was not an
expert in the field.
2566 Andrey Demurenko, 5 July 2007, T. 7718.
2567 Andrey Demurenko, 5 July 2007, T. 7719.
239
Case No IT-98-29/1-T 12 December 2007
718. The Trial Chamber does not find Maj. Gen. Garovi}’s evidence to be reliable. He did not
convince the Trial Chamber of his grasp of the photogrametric method and its reliability for the
purpose of establishing the angle of descent of a projectile in this particular incident. The Trial
Chamber does not discount Maj. Gen. Garovi}’s testimony that, based on the visible traces and
documentation, he believed preparations for a static explosion were carried out. However, in the
Trial Chamber’s view, this does not take the matter any further because he did not visit the site and
he derived his conclusion from photographs on the basis of a method that the Trial Chamber has
found unreliable. The Trial Chamber finds persuasive QMS Higgs’ testimony that it was unlikely
that the shell had been planted, because a frame would have been needed to hold the shell in
position, but there were no traces of secondary debris. Moreover, in his view, the shell would have
had to be activated by a secondary charge or by removing the fuse and placing a charge in it, and
that would have affected the pattern of the crater. Furthermore, the Trial Chamber finds the
possibility that the mortar ricocheted is not supported by the evidence.
719. The Trial Chamber also takes note of the article on the incident by Miroljub Vuka{inovi},
published as part of the Military Technical Institute of the Army of Yugoslavia 97 Symposium in
Belgrade. His conclusions, that it was obvious that the measurements for the calculation of the
angle of descent of the shell were altered and that the shell exploded in static conditions, were based
on an analysis of television footage. These conclusions were dismissed by Berko Ze~evi}, who said
that they were erroneous because they were based on inaccurate data. The Trial Chamber is not
convinced by Miroljub Vuka{inovi}’s conclusions and notes that the calculations of the angle of
descent of the BiH police, the UNMOs and UNPROFOR were based on measurements taken at the
scene. The Trial Chamber sees no reason to question those measurements. Furthermore, the Trial
Chamber is persuaded by the evidence of the BiH police, the UNMOs and the first UNPROFOR
investigation, which concluded that the direction of fire was 170 degrees, that is, Mount Trebevi},
which was SRK-held territory.
720. Ivica Milosavljevi}, the Defence expert on forensic medicine, made essentially two points.
He was not certain that the victims were killed at the spot where it is alleged by the Prosecution that
they lost their lives and, in his view, the victims’ wounds were not caused by shrapnel, but by
gunshots. However, the Trial Chamber observes that he agreed that: (i) some of the photographs
showed wounds inflicted by shrapnel; (ii) shrapnel wounds come in all shapes and sizes and that
shrapnel was not the only thing that could kill a person at an explosion scene; (iii) he did not see
any autopsy reports. With regard to the latter, the Trial Chamber notes, therefore, that the data
relied upon by Ivica Milosavljevi} was incomplete and his views are based entirely on his
interpretation of the photographs.
240
Case No IT-98-29/1-T 12 December 2007
721. The Defence and Ivica Milosavljevi} made a lot of the video footage, which at one point in
time showed no body at a particular location and at the same location some time thereafter showed
the presence of a victim’s body. The evidence indicates that bodies were being moved in the
interests of the health and security of the victims and to clear the street. The evidence also indicates
that the scene immediately after the explosion was characterised by a general confusion and panic.
In such a situation, the Trial Chamber does not find the movement of bodies remarkable. In the
circumstances, it attaches no weight to this evidence pertaining to the video footage. The Trial
Chamber also notes the evidence of Lt. Col. Konings and W-137, both of whom rejected the
Defence proposition that the victims were not killed at the scene of the explosion. Lt. Col. Konings
testified that it was not possible to stage this shelling incident by bringing dead bodies from
elsewhere, given the many people he saw gathered at the Markale Market that morning and the fact
that no other similar incident, killing that many people was reported in Sarajevo before this one. W-
137 testified that there were so many body parts at the scene that if they had been brought in from
elsewhere, this would have been noticed by hundreds of people. The Trial Chamber finds that at
least 35 persons died and at least 78 persons were wounded, many of them seriously. The great
majority of wounded were civilians. Only one of the deceased was a soldier of the ABiH. The Trial
Chamber is satisfied that the other 34 deceased were civilians.
722. Col. Demurenko testified that a mortar had exploded in front of Markale Market but that it
was not fired from SRK positions. He went to the possible firing locations in SRK-held territory
that he identified and concluded for each of the locations that either it was not possible to fire a
mortar from the location or there were no visible traces which would have indicated a mortar was
fired from the location. Col. Demurenko could not testify as to exactly which bearing he used when
he visited the possible firing locations identified by his team. The Prosecution showed Col.
Demurenko a satellite photograph indicating the difference in the bearing identified by
UNPROFOR and the bearing he had identified while testifying in examination-in-chief. However,
he also said he used the bearing that was calculated by UNPROFOR. Col. Demurenko testified he
could calculate the possible firing locations with a margin of deviation of ten to 15 metres and that
enabled him to search the location within those points. The Trial Chamber recalls the evidence that
any bearing calculated by UNPROFOR or the BiH police had a margin of error of approximately
ten degrees, confirmed by QMS Higgs. It is clear that this margin of error covered a wider area than
was covered by the locations visited by Col. Demurenko on the basis of a margin of deviation of no
more than ten to 15 metres. The Trial Chamber, therefore, has a difficulty accepting Col.
Demurenko’s conclusions dismissing any possibility that the shell was fired from SRK-held
territory. This determination is consistent with the Prosecution’s line of cross-examination that Col.
Demurenko confined himself to too narrow an area in seeking to identify the possible launching
241
Case No IT-98-29/1-T 12 December 2007
sites. It is significant that Col. Demurenko never answered the Prosecution’s questions on this point
with any clarity, in fact the Trial Chamber characterises his responses as vague and evasive.
723. Col. Demurenko also testified that the Markale explosion was not a result of shelling but
rather was one caused by terrorists. He further made the point that no traces of the shell were
recorded by the Cymbeline radar system. This point was also made by the Defence in crossexamination.
The short answer to this is given by an UNPROFOR report which explained that the
launch of the mortar was not recorded because the radar was set to detect the trajectory of a mortar
shell fired at a distance of 950 metres or less and, consequently, the trajectory of any round fired
from a distance of between 1,500 and 3,000 metres would have passed under the radar beam. The
Trial Chamber accepts this explanation.
724. In the circumstances, the Trial Chamber is satisfied that the mortar shell that struck the
street in the vicinity of the Markale Market was fired from the territory under the control of the
SRK and that it was fired by members of the SRK.
7. Effects of Shelling and Sniping on Civilians
725. In its Final Brief, the Defence submitted that the period covered by the Indictment “differed
in many ways from the preceding period of the conflict.”2568 However, witnesses said that during
the Indictment period the day-to-day life of civilians in Sarajevo did not differ in many ways from
what it had been like in 1992 and 1993.2569 Milan Mandilovi} testified that while 1994 and 1995
were “somewhat easier” in comparison to the previous years, “the population was exhausted, both
psychologically and physically.”2570 Col. Demurenko, Chief of Staff of UNPROFOR Sector
Sarajevo from January 1995 to December 1995, testified that “if one looks at the human suffering,
then it was a case of a full siege, just like in Leningrad during Second World War.”2571 He
expressed his surprise at the “ambivalent attitude, blunted attitude toward life” and the prevalent
atmosphere of “lethargy” in Sarajevo.2572 He agreed with the Prosecution that one possible
explanation for the lethargy was that as a result of having been under siege for three years, “people
had lost their will to lead a normal life.”2573 Martin Bell explained that:
2568 Defence Final Brief, para. 129.
2569 Bakir Naka{, 25 Jan 2007, T. 1062; Milan Mandilovi}, 18 Jan 2007, T. 617. See supra, Section II.C.2 Effect on the
Civilian Population within the Confrontation Lines.
2570 Milan Mandilovi}, 17 Jan 2007, T. 569 – 570, 18 Jan 2007, T. 605 – 606.
2571 Andrey Demurenko, 21 Aug 2007, T. 9007. See also, Milorad Kati}, 1 June 2007, T. 6039.
2572 Andrey Demurenko, 5 July 2007, T. 7667, 7731 – 7732.
2573 Andrey Demurenko, 5 July 2007, T. 7732.
242
Case No IT-98-29/1-T 12 December 2007
“the civilians inside the confrontation lines looked haggard, they looked hunted. Their only
business of the day was to get through the day, to survive. Survival was what it was about. They
were truly desperate times.”2574
(a) Daily Life
726. Civilians in the ABiH-held territory suffered from many privations, such as shortages of
food, water, power, gas and electricity, for much of the war.2575 According to Bakir Naka{, the dayto-
day life of those residing in Sarajevo during the Indictment period was not very different from
the lives of people in 1992 and 1993:
“The city was still under siege, no electricity, no regular water supply, no regular energy supply;
under shelling and sniping continually. Life was not normal in any way for the residents of
Sarajevo, nor was our work, the work of health workers in the city’s health institutions. Likewise,
we lacked all energy supplies, electricity, and our supplies were reduced, limited, in terms of
medical supplies, food and such like.”2576
727. Evidence indicates that the availability of food, water and power fluctuated.2577 According
to witnesses, the SRK largely controlled the utilities in Sarajevo.2578 According to David Harland,
the “Bosnian Serbs” said that Radovan Karad`i}, in particular, wanted to cut off the Sarajevo water
supply “and other things”, but that there was “influence” from Serbia not to do so.2579 UNPROFOR
reported that at the end of June 1995 efforts to restore gas, water and electricity were blocked by the
“Serb military”, despite agreements to restore the utilities between Bosnian Muslim and Bosnian
Serb civil leaders. Zdravko Tolimir stated that there would be no restoration of utilities until the
fighting around Sarajevo was over.2580
728. As of May or June 1992, Sarajevo did not, in general, have electricity.2581 Martin Bell stated
that there were periods during winter lulls in fighting when gas and electricity were intermittently
restored.2582 People used wood for fuel, including the doors of a school in Novo Sarajevo.2583
2574 Martin Bell, 26 Apr 2007, T. 5264.
2575 Martin Bell, 26 Apr 2007, T. 5258, 5259; David Harland, 16 Jan 2007, T. 454.; P618, Videoclip showing aspects of
humanitarian situation in Sarajevo; Azra [i{i}, 27 Feb 2007, T. 2830 – 2831; Alma Mulaosmanovi}, P179, p. 3; An|a
Gotovac, P522, p. 2; Rialda Musaefendi}, P295, p. 4; W-156, P625, p. 11 (under seal). Cf. Goran Kovacevic, 13 June
2007, T. 6602.
2576 Bakir Naka{, 25 Jan 2007, T. 1062.
2577 Martin Bell, 26 Apr 2007, T. 5258; Milan Mandilovic, 18 Jan 2007, T. 621 – 622; P12, UNPROFOR daily sitrep,
14 April 1995, p. 3; D12, UNPROFOR weekly sitrep, 19 May 1995, p. 4.
2578 David Harland, 15 Jan 2007, T. 352 – 353; Azra Si{i}, 27 Feb 2007, T. 2848 – 2849; David Harland, P1, MT.
26955; W-156, P625, pp 39 – 40 (under seal); John Jordan, P267, p. 7. See also P15, UNPROFOR sitrep, 3 June 1995,
pp 3 – 4; P10, UNPROFOR weekly sitrep, 10 December 1994, pp 5, 6; P16, UNPROFOR sitrep, 24 June 1995, pp 4 –
5; P19, UNPROFOR sitrep, 2 July 1995, p. 6; D12, UNPROFOR weekly sitrep, 19 May 1995, p. 4; P23, Minutes of
meeting on implementation of ceasefire agreement, dated 6 October 1995, pp 1, 3. See also supra, Section II.E.8
“Campaign” Strategy.
2579 David Harland, P1, MT. 26972.
2580 P16, UNPROFOR sitrep, 24 June 1995, pp 4 – 5.
2581 Milan Mandilovi}, 17 Jan 2007, T. 569 – 570; Azra [i{i}, 27 Feb 2007, T. 2830 – 2831.
2582 Martin Bell, 26 Apr 2007, T. 5258, 27 Apr 2007, 5283 – 5284.
Dzenana Sokolovic, 22 Jan 2007, T. 764; Martin Bell, 26 Apr 2007, T. 5258; Dzemaludin Luinovic, 28 Feb 2007, T.
2953; P618, Videoclip showing aspects of humanitarian situation in Sarajevo.
243
Case No IT-98-29/1-T 12 December 2007
Witnesses testified that, in 1994 and 1995, there were transformer stations functioning in Sarajevo;
but there was no regularity in the distribution of electricity during that time because, for example,
overhead power lines were brought down as a result of the fighting or the power pylons were
destroyed “for a more permanent interruption of supply.”2584 Milorad Kati} recalled that, in such a
situation, repairmen from both sides went together with UNPROFOR, “so that no one would get
hurt during the intervention.”2585 Further, he agreed with the Prosecution, that this would involve
arranging a temporary cease-fire. With “representatives of UNPROFOR and the electric company
on both sides and also with representatives of the gas or water works companies, it was agreed to
have this repair work done by jointly formed work details, and this practice was pursued in 1994
and 1995, all the way up to the time of the Dayton Accords.”2586 Goran Kova~evi} stated that with
the exception of when power lines were brought down by the fighting, the electricity supply “never
ceased.”2587 He also noted that “they” could cut-off supply from “Sarajevo gas station”, which
“normally didn’t happen because those were all under UNPROFOR control.”2588 No other evidence
was presented that the gas stations were under UNPROFOR control.
729. Inhabitants of Sarajevo were “constantly hungry and short of food.”2589 The Sarajevo bakery
did not always operate during the war due to shortages of flour and electricity, and also because it
was a “favourite target for being shelled.”2590 The evidence indicates that food shortages meant that
civilians living inside the confrontation lines were substantially dependent on humanitarian food
aid.2591 Rialda Musaefendi} stated that after the Bosnian Serbs closed “the line” in the direction of
Stup, it was no longer possible to buy food and they became largely reliant on humanitarian aid.2592
730. According to witnesses, the Blue Routes were opened intermittently during the Indictment
period.2593 At such times, and when airplanes carrying humanitarian aid were able to land at
Sarajevo Airport, the food situation improved.2594 However, the Blue Routes were subject to SRK
2584 Enes Ja{arevi}, 1 Mar 2007, T. 2988 – 2990; Avdo Vatri, P647, p. 6. See also, Milan Mandilovi}, 17 Jan 2007, T.
569 – 570; Milorad Kati}, 1 June 2007, T. 6031.
2585 Milorad Kati}, 1 June 2007, T. 6031.
2586 Milorad Kati}, 4 June 2007, T. 6129 – 6130. See also, Goran Kova~evi}, 12 June 2007, T. 6556.
2587 Goran Kova~evi}, 12 June 2007, T. 6556.
2588 Goran Kova~evi}, 12 June 2007, T. 6556.
2589 Rialda Musaefendi}, P295, p. 4; D`emaludin Luinovi}, 28 Feb 2007, T. 2956 – 2957; W-57, P539, p. 4 (under
seal).
2590 Rialda Musaefendi}, P295, p. 5; D116, Statement by W-107, p. 3 (under seal). See, e.g., P15, UNPROFOR sitrep, 3
June 1995, p. 3 which stated that the “Sarajevo Bakery, which depends on UNHCR for approximately 48 tons of flour
per day and is the sole producer of bread in the city, used up its flour stocks yesterday.”
2591 W-62, 23 Jan 2007, T. 881 – 882; Azra [i{i}, 27 Feb 2007, T. 2830 – 2831; Martin Bell, 26 Apr 2007, T. 5258;
P618, Videoclip showing aspects of humanitarian situation in Sarajevo; P15, UNPROFOR sitrep, 3 June 1995, p. 3;
P19, UNPROFOR sitrep, 2 July 1995, p. 6.
2592 Rialda Musaefendi}, P295, p. 4.
2593 Milan Mandilovi}, 17 Jan 2007, T. 569, 18 Jan 2007, 617; David Harland, 16 Jan 2007, T. 461, P2, MT. 28638.
2594 Martin Bell, 26 Apr 2007, T. 5258, 27 Apr 2007, 5283 – 5284; Milan Mandilovi}, 18 Jan 2007, T. 617.
244
Case No IT-98-29/1-T 12 December 2007
fire and closure.2595 Martin Bell stated that from April 1995 “the plight of the civilians inside
Sarajevo was as desperate as it had been at any time.”2596 At the end of May and early June 1995,
the food situation in Sarajevo was rapidly deteriorating due to the closure of the land routes and the
ongoing suspension of the humanitarian airlift as a result of the closure of Sarajevo Airport on 8
April 1995.2597 An UNPROFOR report dated 19 May 1995 stated that UNHCR was only able to
bring in 50 per cent of the city’s food needs by land.2598 Food convoys that reached Sarajevo on 22
June 1995 after a period of four weeks without any transport provided for only 20 per cent of the
total need for food.2599
731. Rialda Musaefendi} stated that there was a pervading fear that the water would run out and
the inhabitants of Sarajevo would not be able to get new supplies.2600 Water came in water
tankers.2601 There were also water pumps and wells in the city, and Martin Bell stated that people
also took water from the river.2602 Rialda Musaefendi} collected water on a daily basis from the
Hrasno reservoir.2603 An UNPROFOR report noted that in May and early June 1995, all sources of
water, producing about 15 per cent of the pre-cut off level, were located in the eastern part of
Sarajevo.2604 As such, water assistance was to be focused on the western part of the city.2605 The
report noted that Grbavica was relatively better off for water because its water supply came from a
gravity-fed source and that Ilid`a “may be facing problems”; but it was difficult to verify due to
lack of communication.2606
732. Evidence indicates that the provision of medical services was severely affected as a result of
the ongoing conflict. There was not enough electricity to run the machines or elevators and the State
Hospital even rationed the use of generators.2607 Food preparation, laundry and sterilisation were all
done using firewood, or gas, if available.2608 Small tanks were built to preserve water, which was
occasionally provided by tankers, for a few days.2609 However, “only the most vital parts of the
hospital were provided with electricity and the minimal quantities of water.”2610 There was no
2595 See supra, Section II.E.5(a) Shelling by the SRK.
2596 Martin Bell, 26 Apr 2007, T. 5258.
2597 P15, UNPROFOR sitrep, 3 June 1995, p. 3; P19, UNPROFOR sitrep, 2 July 1995, p. 6.
2598 D12, UNPROFOR weekly sitrep, 19 May 1995, p. 3.
2599 David Harland, 15 Jan 2007, T. 344. See also Rialda Musaefendi}, P295, p. 4; P16, UNPROFOR sitrep, 24 June
1995, p. 4.
2600 Rialda Musaefendi}, P295, p. 4.
2601 W-62, 23 Jan 2007, T. 882; P618, Videoclip showing aspects of humanitarian situation in Sarajevo.
2602 Martin Bell, 26 Apr 2007, T. 5258; P618, Videoclip showing aspects of humanitarian situation in Sarajevo.
2603 Rialda Musaefendi}, P295, p. 4.
2604 P15, UNPROFOR sitrep, 3 June 1995, p. 4.
2605 Ibid.
2606 Ibid.
2607 Bakir Naka{, 25 Jan 2007, T. 1074; Milan Mandilovi}, 17 Jan 2007, T. 569 – 570.
2608 Bakir Naka{, 25 Jan 2007, T. 1074.
2609 Bakir Naka{, 25 Jan 2007, T. 1074 – 1075.
2610 Bakir Naka{, 25 Jan 2007, T. 1075.
245
Case No IT-98-29/1-T 12 December 2007
regular heating in the hospital, with the exception of one heater that was installed by using gas as an
open source of energy.2611 Bakir Naka{ stated that it “was so risky that I really don’t understand
how part of this hospital didn’t blow up, because the gas was often cut off. There were leakages and
things like that.”2612
733. There were not enough medical supplies. Medicines and medical supplies were distributed
between the State Hospital and the Medical Clinical Centre based on an estimate of the number of
surgeries and patients to be treated.2613 The outpatient and emergency wards were supplied 100 per
cent by the World Health Organisation.2614 In addition, the UN made provisions to evacuate
“humanitarian cases”, that is, people who were sick or wounded.2615 Bosnian Serbs would often
raise concerns with UNPROFOR about the time it took persons on SRK-held territory to get to a
hospital or about the inadequate facilities at the hospitals.2616 T-61 testified that on the Bosnian Serb
side, the situation regarding medical equipment was “much worse” since it had no stocks.2617
However, according to David Harland, the conditions in the hospitals on the Bosnian Muslim side
were “vastly worse” than those on the Bosnian Serb side.2618
(b) Physical Impact
734. The Trial Chamber heard testimony from several witnesses and received evidence in form of
documents that throughout 1994 and 1995, civilians inside the confrontation lines suffered death
and injury as a result of the SRK shelling and sniping.2619
735. The Trial Chamber heard evidence that at the State Hospital “not a week passed without
there having been persons brought in, either due to sniping or shelling … we would constantly
admit persons.”2620 The number of civilian casualties fluctuated during this period due to increased
2611 Bakir Naka{, 25 Jan 2007, T. 1075.
2612 Bakir Naka{, 25 Jan 2007, T. 1075.
2613 Bakir Naka{, 25 Jan 2007, T. 1075.
2614 Bakir Naka{, 25 Jan 2007, T. 1075.
2615 David Harland, P2, MT. 28638.
2616 David Harland, 16 Jan 2007, T. 456.
2617 T-61, 9 July 2007, T. 7883.
2618 David Harland, 16 Jan 2007, T. 456 – 457.
2619 Bakir Naka{, 29 Jan 2007, T. 1099 – 1100; W-137, 20 Feb 2007, T. 2498 – 2499; Milan Mandilovi}, 18 Jan 2007,
T. 596; Andrey Demurenko, 5 July 2007, T. 7676; W-95, P520, p. 3 (under seal); Rupert Smith, P334, p. 12; P6,
UNPROFOR cable, 12 September 1994; P10, UNPROFOR weekly sitrep, 10 December 1994, p. 5; P16, UNPROFOR
sitrep, 24 June 1995, pp 1, 3; P12, UNPROFOR daily sitrep, 14 April 1995, p. 2; P19, UNPROFOR sitrep, 2 July 1995,
p. 2; P20, UNPROFOR sitrep, 8 July 1995, p. 2; P391, UNPROFOR report, 17 November 1994, p. 2; P760,
UNPROFOR sitrep, 10 December 1994, p. 2; P793, UNPROFOR report on violations of Anti-sniping Agreement, pp 1
– 2; D10, UNPROFOR daily sitrep, 28 Aug 1995, pp 2 – 3. See also supra, Section II.E.1-6.
2620 Milan Mandilovi}, 17 Jan 2007, T. 571.
246
Case No IT-98-29/1-T 12 December 2007
movement of civilians across Sarajevo or increased shelling.2621 John Jordan testified that the
majority of victims from shelling and sniping were women and children.2622
736. Between August 1994 and October 1995, about ten per cent of the total number of civilian
patients Bakir Naka{ treated were sniping casualties and about 90 per cent were shelling
casualties.2623 Milan Mandilovi} testified that approximately 80 per cent of the casualties brought to
the State Hospital were civilians, and 20 per cent were military personnel.2624
737. A spreadsheet prepared by the Prosecution and presented to the Trial Chamber through a
police officer, showed 329 persons were wounded and 95 persons were killed in 214 shelling and
sniping incidents investigated by the Bosnian Muslim police between 30 August 1994 and 9
November 1995.2625 Brig. Mohatarem testified that in the month of May 1995 more than 70
civilians were killed and about 250 were injured.2626 Based upon records maintained after 1992, and
information from others, W-57 estimated that from late 1992 until the end of the war, between
1,800 and 2,000 residents were killed in Hrasnica as a result of sniping and shelling, while 5,000 to
10,000 inhabitants were wounded either once or more.2627
738. The Trial Chamber does not consider the spreadsheet an exhaustive account of the number
of persons killed during the conflict. The evidence clearly showed that more than 95 persons were
killed in sniping and shelling incidents.
739. In addition, the Trial Chamber notes that Ewa Tabeau presented evidence of the number of
dead and wounded as a result of shelling and sniping during the Indictment period. During trial and
in its Final Brief, the Defence challenged the evidence of Ewa Tabeau on a number of grounds,
including that the six municipalities to which her findings related were divided between the warring
parties during the conflict and, as a result, her report could not assist the Trial Chamber with
“knowing the number of dead and injured in the part of Sarajevo exposed to the military activity of
2621 Milan Mandilovi}, 17 Jan 2007, T. 571; Bakir Naka{, 29 Jan 2007, T. 1105.
2622 John Jordan, P267, pp 5, 9.
2623 Bakir Naka{, 25 Jan 2007, T. 1082, 1085 – 1086, 29 Jan 2007, T. 1104 – 1105. He further testified that he treated
115 people injured by sniping of which 74 were civilians, including eight children. See also, P107, Spreadsheet
showing victims of sniping (under seal).
2624 Milan Mandilovi}, 17 Jan 2007, T. 571 – 572. He stated that the following was taken into account to determine
whether someone was a civilian or military: “One of the significant elements involved in the admission of patients was
their personal background and their personal data, names, age, place of birth, and so on, and it was on the basis of this
that we would admit them. Also what was taken into account was the way the patients were brought into the hospital,
whether it was by way of a vehicle belonging to an organisation or institution or whether they were brought in by
people, passers-by, their friends or members of their family. In addition to that, military personnel would have military
IDs on them, they would be in uniform; and on the basis of that, we could easily establish whether a person was a
civilian or military personnel”, Milan Mandilovi}, 17 Jan 2007, T. 572 – 573.
2625 P602, Spreadsheet showing law enforcement reports from Sarajevo. The Trial Chamber notes that the spreadsheet
lists 215 incidents. One incident is listed twice (no. 28).
2626 Ghulam Muhammad Mohatarem, 19 Jan 2007, T. 713.
2627 W-57, 17 Apr 2007, T. 4548 – 4549, P538, p. 2 (under seal).
247
Case No IT-98-29/1-T 12 December 2007
units under the control of the Accused.”2628 Ewa Tabeau acknowledged that she “didn’t pay
attention to what army controlled what areas” as this was beyond her “interest” in this report.2629
The Prosecution argued that Ewa Tabeau “was not attributing deaths to anyone” but simply
presenting evidence of war-related deaths, on which the Parties could make submissions.2630
(c) Psychological Impact
740. Evidence shows that the conflict impacted psychologically on people of all ethnicities in
Sarajevo. Witnesses described the immense psychological impact that the conflict had on the
civilians, adults and children alike, who lived within the confrontation lines.2631 Bakir Naka{
testified that very often the number of patients who would come to the hospital with “mental
disturbances” was greater than those who came in with various physical wounds and injuries.2632
People were affected by the knowledge that one might be killed or wounded any day and by living
in a city under siege for such a long time without basic necessities.2633
741. The Trial Chamber also heard that John Jordan responded to a number of incidents over the
years in Sarajevo where one member, often the youngest member, of a family was shot.2634 It was
his view that “when you’re targeting civilians like this, particularly families who may or may not
be Muslim, shooting the child has the effect of literally disembowelling the whole family.”2635
742. Witnesses testified that they felt constantly afraid in Sarajevo as a result of the sniping and
shelling.2636 People risked their lives every time they ventured out.2637 It was dangerous to collect
food and water.2638 W-107 stated that her daughters often returned from collecting water or
2628 Defence Final Brief, paras 139 – 140.
2629 Ewa Tabeau, 2 May 2007, T. 5552.
2630 Ewa Tabeau, 2 May 2007, T. 5549.
2631 Bakir Naka{, 29 Jan 2007, T. 1108, 1147; Milan Mandilovi}, 17 Jan 2007, T. 569; Fadila Serdarevi}, P641, pp 5, 6,
9, P643, p. 10; P539, W-57, p. 4 (under seal); Nefa [ljivo, P531, p. 2. Cf. T-61, 9 July 2007, T. 7879 – 7880.
2632 Bakir Naka{, 29 Jan 2007, T. 1101 – 1102.
2633 Bakir Naka{, 29 Jan 2007, T. 1108; Milan Mandilovi}, 17 Jan 2007, T. 569 – 570; Ismet Had`i}, 6 Mar 2007, T.
3234.
2634 John Jordan, 22 Feb 2007, T. 2697 – 2698.
2635 John Jordan, 22 Feb 2007, T. 2697 – 2698.
2636 Afeza Kara~i}, 29 Jan 2007, T. 1186; Alma Mulaosmanovi}, 6 Feb 2007, T. 1658 – 1659, 1672, 1674; Azra [i{i},
27 Feb 2007, T. 2832 – 2833; Sanjin Hasanefendi}, 16 Feb 2007, T. 2302; P232, Photograph marked by Sanjin
Hasanefendi}. See also, Enes Ja{arevi}, 1 Mar 2007, T. 3003; Slavica Livnjak, 23 Jan 2007, T. 872; T-61, 9 July 2007,
T. 7880, 7881; W-62, 24 Jan 2007, T. 925 – 926; Sanela Dedovi, P110, pp 2, 3; Ismet Ali, P640, p. 3; W-32, P529, p.
2; An|a Gotovac, P522, p. 2; Derviša Selmanovi, 5 Feb 2007, T. 1596, P170, p.3; Fikreta Pa~ariz, P643, p. 9; Sabina
[abani}, P154, p. 2; W-57, P539, p. 4 (under seal); D116, Statement by W-107, p. 4 (under seal).
2637 W-118, 6 Feb 2007, T. 1637 – 1638; Enes Ja{arevi}, 1 Mar 2007, T. 3003 – 3004; Azem Agovi, P211, p. 2; Alma
Mulaosmanovi}, P179, p. 3; Derviša Selmanovi, P170, p. 3; Slavica Livnjak, P95, p. 2. See T-61, 9 July 2007, T. 7880
– 7881; P304, Map marked by Enes Ja{arevi}; P539, W-57, p. 4 (under seal).
2638 See, e.g., supra, Section II.E.4.(b)(i)f and II.E.4.(b)(ii)b. See also, W-62, 23 Jan 2007, T. 881 – 882; Alija Holjan,
P526, p. 3; D116, Statement by W-107, p. 4 (under seal).
248
Case No IT-98-29/1-T 12 December 2007
firewood and “I would find that they had soiled their clothes because of the fear that they had.”2639
As described by W-57, they lived under “the constant threat of death.”2640
743. Witnesses also testified that it made no difference whether one was inside one’s apartment
or on the street or in a tram; people in Sarajevo knew that they could be shot at any moment and
that shells could land anywhere.2641 People felt safer during lulls in the shelling and sniping but
even then one was not safe and there was no way of knowing when the shelling and sniping would
resume.2642 Alma Mulaosmanovi} stated:
“Wherever you were, moving out or sitting in your home, we could hear the shots passing by
throughout the war, including the shells. You could never know where they were going to land.
They just whizzed by, and as soon as it passed it was a kind of relief. …
But it wasn’t safe inside the flat either. You had to go out eventually to fetch things. … It was
dangerous all over the place. One of my friends died on her balcony which had a concrete wall just
in front. … Nowhere was safe.”2643
744. According to witnesses, there were very few places where one could be entirely safe from
shelling, except underground, under fortified cover or in the cave down by the Miljacka River.2644
As was the case during the first two years of the war, people would vary the routes that they took
according to the areas of the city that were known to be particularly dangerous in order to ensure
they were concealed from the view of snipers as much as possible, including by finding alternative
ways to enter their homes.2645 Video evidence was presented showing civilians running between
one point and another, particularly when they had to cross open spaces.2646 Similarly, it was
dangerous to travel from Dobrinja into the city and vice versa and, consequently, there was little
communication between the two areas.2647 Witnesses spoke of it being a matter of “luck” that dayto-
day, and throughout the war, they were not injured or killed.2648 W-35 testified that “most of our
lives during the four years were spent in cellars.”2649
2639 D116, Statement by W-107, p. 5 (under seal).
2640 W-57, P539, p. 4 (under seal).
2641 W-46, 15 Mar 2007, T. 3815 (closed session); Alma Mulaosmanovi}, 6 Feb 2007, T. 1674; Enes Ja{arevi},
1 Mar 2007, T. 3003; Azra [i{i}, 27 Feb 2007, T. 2832 – 2833; Sabina [abani}, P154, p. 2; Nefa [ljivo, P531, p. 2;
Tarik Zuni, P185, p. 3; Derviša Selmanovi, P170, p. 3.
2642 Sanela Dedovi, P110, p. 2; W-95, P520, p. 2 (under seal); Ismet Ali, P640, p. 8.
2643 Alma Mulaosmanovi}, 6 Feb 2007, T. 1659, 1666, 1674. See also, Afeza Kara~i}, 29 Jan 2007, T. 1186.
2644 Martin Bell, 26 Apr 2007, T. 5242; John Jordan, P267, p. 6; D116, Statement by W-107, p. 4 (under seal).
2645 Asam Butt, 15 Feb 2007, T. 2178 – 2179; Ismet Had`i}, 6 Mar 2007, T. 3212; Alma Mulaosmanovi}, P178, p. 2;
Sanela Dedovi, P110, p. 3; Ned`ib \ozo, P363, p. 2. See also, supra, Section II.E.3(b) Anti-sniping Measures
2646 P612, Videoclip of events in Sarajevo.
2647 Martin Bell, 26 Apr 2007, T. 5242; Enes Ja{arevi}, 1 Mar 2007, T. 3003.
2648 W-118, P175, p. 3 (under seal); D`emaludin Luinovi}, P298, p. 2.
2649 W-35, 23 January 2007, T. 849.
249
Case No IT-98-29/1-T 12 December 2007
745. Azem Agovi said he got used to living with the dangers.2650 For other witnesses, it was a
struggle just to survive.2651 Referring to a modified air bomb exploding in Sokolovi}i, W-82 stated
that “they could have coped” with the sniping and shelling of the neighbourhood “until the air bomb
landed on 23 July 1995.”2652 As recounted by Ismet Had`i}:
“At the beginning of the war, it was a disaster, psychologically speaking. It affected not only the
people who were killed and their families but the entire neighbourhood around the area where
someone had been killed. In 1994 and 1995, it became the normal thing, although to say it was
normal is horrific. Only the families who had their family members killed were affected. But as for
the others, they just saw one person less. That was the mental state of the population. Death was
the most common thing in 1994 and 1995, although the psychological burden was somewhat less
than in the initial two years.”2653
746. For Ismet Ali}, the time during the war was “like a vacuum, where life was just empty.”2654
It took a long time for life to return to normalcy.2655 Some witnesses continue to suffer the
psychological effects of the war by, for example, needing medication to remain calm, being unable
to work, experiencing anxiety, difficulty sleeping, waking during the night because of thunder and
believing it is an attack by the Bosnian Serbs, and being frightened by loud noise.2656 Elderly people
were not able to get on with life and many still suffer psychologically from the effects of the
war.2657
(d) Ability to Leave Sarajevo
747. The Trial Chamber heard evidence that, while some civilians managed to get out of Sarajevo
early in the war, others were mostly trapped inside the confrontation lines encircling Sarajevo.2658
Bosnian Serbs, primarily those in the neighbourhoods under the control of the ABiH, expressed to
David Harland their desire to leave Sarajevo because the city was “under siege” and they were at
great risk of being killed, but were unable to do so mainly because Bosnian Muslim authorities
would not allow it.2659
748. Martin Bell testified that the civilians behind the Bosnian Serb lines were able to get out to
safer territory, if they wished.2660 Milorad Kati} testified that people were able to leave the Bosnian
2650 Azem Agovi, P211, p. 3.
2651 W-57, P539, p. 4 (under seal); Nefa [ljivo, P531, p. 2; D116, Statement by W-107, p. 5 (under seal).
2652 W-82, P228, p. 2. See supra, Section II.E.6(b)(xiii) Shelling of Bjela{ni~ka Street in Sokolovi}i on 23 July 1995.
2653 Ismet Had`i}, 6 Mar 2007, T. 3234.
2654 Ismet Ali, P640, p. 9.
2655 Ismet Ali, P640, p. 9.
2656 Ismet Ali, P640, p. 9; Alma Mulaosmanovi}, 6 Feb 2007, T. 1658 – 1659, 1660, P179, p. 3; An|a Gotovac, P522,
p. 2; Derviša Selmanovi, P170, p. 3; Fikreta Pa~ariz, P643, p. 10; Sabina [abani}, P154, p. 2; W-95, P520, p. 3 (under
seal); D116, Statement by W-107, p. 5 (under seal).
2657 Ismet Ali}, P640, p. 9. See also, D116, Statement by W-107, p. 5 (under seal).
2658 Martin Bell, 26 Apr 2007, T. 5264, 27 Apr 2007, T. 5279; W-54, 6 Feb 2007, T. 1692.
2659 David Harland, 15 Jan 2007, T. 358-359, 16 Jan 2007, T. 449.
2660 Martin Bell, 27 Apr 2007, T. 5279.
250
Case No IT-98-29/1-T 12 December 2007
Serb-held areas for Bosnian Muslim-held areas, and vice versa, by walking over the Brotherhood
and Unity Bridge.2661
749. The Trial Chamber also heard that so long as they had permission, people could leave and
return to Sarajevo through the tunnel.2662 Witnesses rejected the Defence submissions that only
Bosnian Muslim citizens were able to leave and any Bosnian Serbs who used the tunnel would be
killed on the other side.2663 Several witnesses testified that they had passed through the tunnel on
multiple occasions.2664 However, Martin Bell testified that civilians were not able to evacuate the
city on any significant scale.2665
750. Evidence was presented in respect of the use of the tunnel for both humanitarian and
military purposes. Witnesses confirmed that the tunnel was used for purposes which included
passage of soldiers and wounded, and food supplies and various types of ammunition and
weapons.2666 According to Defence witness T-52, the SRK did not fire at the tunnel because
civilians were always together with the soldiers and the ABiH made use of that to safely take up
positions on the surrounding hills.2667 According to Milan Mandi}, the SRK command knew of the
ABiH tactic of mixing with civilians and expressly forbade opening any fire.2668 However, Maj.
Gen. Karaveli} testified that there was shelling, regardless of who or what was going through the
tunnel.2669 Col. Dragi~evi} concluded that the tunnel eliminated the concept of any kind of siege,
since ABiH units would go through the tunnel and take up positions in Ilija{, Ilidža and the Nisi}i
plateau.2670 However, Maj. Gen. Karaveli} disagreed that the tunnel changed the status of the
siege.2671 Ismet Had`i}, commander of the ABiH 155th Brigade, explained that the ABiH went
through the tunnel to break through the siege in order to liberate Sarajevo.2672
751. The Trial Chamber finds that in the period covered by this Indictment, Sarajevo was
effectively besieged by the SRK. If, by virtue of the limited possibilities offered by the tunnel, this
2661 Milorad Kati}, 1 June 2007, T. 6039. See also supra, Section II.C.2 Effect on the Civilian Population within the
Confrontation Lines.
2662 David Harland, 15 Jan 2007, T. 379; W-138, 1 Feb 2007, T. 1425 – 1427.
2663 David Harland, 15 Jan 2007, T. 380; W-138, 1 Feb 2007, T. 1425 – 1429.
2664 Bakir Naka{, 29 Jan 2007, T. 1144 – 1145; W-137, 19 Feb 2007, T. 2480; John Jordan, 21 Feb 2007, T. 2646; Nefa
[ljivo, 5 Apr 2007, T. 4513 – 4514, 4516, 4517; W-57 P539, p. 4 (under seal).
2665 Martin Bell, 27 Apr 2007, T. 5280.
2666 Vahid Karaveli}, 27 Mar 2007, T. 4143 – 4144, P492, p. 13. See also, Rupert Smith, 7 Mar 2007, T. 3358; David
Harland, 15 Jan 2007, T. 377 – 378; David Fraser, 8 Feb 2007, T. 1840; Luka Dragi~evi}, 26 Mar 2007, T. 4011;
Martin Bell, 27 Apr 2007, T. 5279 – 5280; Zoran Trapara, 26 June 2007, T. 7307 – 7308; Ljuban Mrkovi}, 12 July
2007, T. 8149 – 8151, 8190 – 8191; D152, Order by Fikret Prevljak, dated 13 April 1995.
2667 T-52, 28 June 2007, T. 7437, 7461.
2668 Milan Mandi}, 3 July 2007, T. 7561.
2669 Vahid Karaveli}, 28 Mar 2007, T. 4225; Ghulam Muhammad Mohatarem, 19 Jan 2007, T. 714; Rupert Smith, 7
Mar 2007, T. 3351 – 3352, P334, p. 12; Thorbjorn Overgard, 19 Jan 2007, T. 687; Nefa [ljivo, 5 Apr 2007, T. 4517.
2670 Luka Dragi~evi}, 26 Mar 2007, T. 4042 – 4043.
2671 Vahid Karaveli}, 28 Mar 2007, T. 4223.
2672 Ismet Had`i}, 6 Mar 2007, T. 3288 – 3289.
251
Case No IT-98-29/1-T 12 December 2007
was not a siege in the classical sense of a city being surrounded, it was certainly a siege in the sense
that it was a military operation, characterised by a persistent attack or campaign over a period of
fourteen months, during which the civilian population was denied regular access to food, water,
medicine and other essential supplies, and deprived of its right to leave the city freely at its own will
and pace. The purpose of the siege of Sarajevo was to compel the BiH Government to capitulate.
8. “Campaign” Strategy
752. In the Prosecutions submissions, the Accused conducted a campaign of shelling and sniping
upon civilian areas of Sarajevo and upon the civilian population “which had the primary purpose of
spreading terror among the civilian population.”2673 The Prosecution further submitted that the SRK
intended to terrorise the civilians of Sarajevo with its campaign, “and they did so”.2674
753. David Harland testified that the campaign was part of a strategy to force the Bosnian
Muslims, through the application of “pressure”, to capitulate on terms favourable to the Bosnian
Serbs.2675 As such, 1992 and 1993 were largely devoted to the Bosnian Serbs gaining territory and
then removing the non-Bosnian Serb populations from BiH.2676 In 1994, according to David
Harland, the Bosnian Serbs thought that they were achieving their objectives.2677 Radovan Karadži}
and Mom~ilo Kraji{nik had explained that their tactic was to hold onto the land that they had gained
and to make the Bosnian Muslim Government understand that it did not have any military options
available and that the suffering of the Bosnian Muslim people would only increase if the
Government did not agree to a political settlement.2678 The political settlement “would lead to
Bosnian Serb independence within defined borders, no reversal of ethnic cleansing and a substantial
acceptance of the territory” the Bosnian Serbs held.2679 At this time, the Bosnian Serbs also agreed
to a number of measures to stabilise the situation in Sarajevo, such as cease-fires and measures to
reduce the sniping of civilians, the opening of the Blue Routes, the turning on of some electricity
2673 Indictment, para. 22. See also, Prosecution Final Brief, para. 4: “the SRK, under the Accused’s command,
conducted a politically motivated campaign of terror against the civilian population of Sarajevo. The campaign involved
sniping, shelling and air bombing a city under siege. It ran from the beginning to end of the Amended Indictment
period, in all areas of Sarajevo, at all times of day, and in all months of the year. Its targets were civilians. Not only did
the Accused inherit this campaign, he intensified it.”
2674 Prosecution Closing Arguments, 9 Oct 2007, T. 9473.
2675 David Harland, 15 Jan 2007, T. 324 – 330, P1, MT. 26933, 26935, 26954, 26996, P2, MT. 28654. See also, Rupert
Smith, 7 Mar 2007, T. 3310.
2676 David Harland, 15 Jan 2007, T. 327 – 330, P1, MT. 26936 – 26937, 26953.
2677 David Harland, 15 Jan 2007, T. 328.
2678 David Harland, 15 Jan 2007, T. 328.
2679 David Harland, 15 Jan 2007, T. 328.
252
Case No IT-98-29/1-T 12 December 2007
and water and the re-starting of the trams.2680 Consequently, 1994 was a relatively quiet and stable
year in terms of military activity.2681 David Harland explained:
“They thought that time was on their side. They said, you know, we hold all the land, we dominate
all the high ground, we can apply pressure - as they called it - the shelling and the sniping and the
cutting off of the water and gas and electricity and food to the Muslim population.”2682
754. Towards the end of 1994 and in 1995, there was a “sharp deterioration” in the situation,
which continued up until the end of the conflict.2683 David Harland recalled Mom~ilo Kraji{nik
explaining that “the Serbs” felt that they had perhaps miscalculated and that the Bosnian Muslims
were not going to capitulate.2684 As a result, they had decided to “apply pressure more directly.”2685
The Bosnian Serbs returned to a pattern of more intense use of both military and non-military
means against Sarajevo so as to force the Bosnian Muslim Government to enter into a peace
agreement.2686
755. Witnesses who worked with UNPROFOR at the time believed that the purpose of the
campaign of shelling and sniping was to exert pressure on the Bosnian Muslims by terrorising the
civilian population.2687 Gen. Smith testified that, with the exception of countering a specific attack,
it was his understanding that shelling and sniping of civilian areas in Sarajevo was “essentially to
terrorise, to wear down the resolve of the defender, to hold the presence of the Serb pressure
evidently in the minds of people on a daily basis.”2688 David Harland found it “particularly
alarming” that Radovan Karad`i} and his associates directly said “we will use this Serbiansupported
war machine to make life impossible for the civilians”, to “terrorise” the civilians in
order to reach a particular political goal.2689 Similarly, Lt. Col. Fortin said that it was his assessment
that in Sarajevo sniping was used by the SRK “as a terrorist tactic” more than anything else “since
the Bosnian Serbs had nothing to gain militarily and a lot to lose politically.”2690
756. The deprivation of the civilian population in Sarajevo of food, water and power was also “a
common theme” of the Bosnian Serb strategy to force the Bosnian Muslim Government to accept a
2680 David Harland, 15 Jan 2007, T. 329, 331, 384 – 385.
2681 David Harland, 15 Jan 2007, T. 327 – 330, T. 384 – 385, P1, MT. 26937.
2682 David Harland, 15 Jan 2007, T. 328.
2683 David Harland, 15 Jan 2007, T. 327 – 330, P1, MT. 26937.
2684 David Harland, 15 Jan 2007, T. 329, 331.
2685 David Harland, 15 Jan 2007, T. 324 – 325, 327 – 331.
2686 David Harland, 15 Jan 2007, T. 327 – 331.
2687 Harry Konings, 12 Mar 2007, T. 3560; W-46, 15 Mar 2007, T. 3815 (closed session), P387, pp 14 – 15 (under seal);
W-156, 27 Apr 2007, T. 5329 (closed session), P625, pp 18, 21 (under seal); Ronald Eimers, P585, p. 5.
2688 Rupert Smith, 7 Mar 2007, T. 3311. See also, W-46, 15 Mar 2007, T. 3815 (closed session); David Harland, 15 Jan
2007, T. 325 – 327, P1, MT. 26936.
2689 David Harland, P1, MT. 27004.
2690 Louis Fortin, P27, p. 7.
253
Case No IT-98-29/1-T 12 December 2007
peace agreement.2691 David Harland testified that “whenever the Bosnians would try any sort of
military activity, the Serbs would retaliate against the city as a whole and the civilian population by
cutting off the electricity or limiting the amount of water or, in particular, stopping convoys of food
or increasing their bombardment of civilian areas.”2692
757. The Trial Chamber heard evidence that in some instances the shelling and sniping of civilian
areas by the SRK was in response to ABiH attacks, but that this “retaliatory” shelling and sniping
was not directed at the ABiH forces; rather, it “consisted of arbitrary firing at the city.”2693 David
Harland commented that “the retaliation was principally against civilians.”2694 Maj. Eimers also
testified that retaliation was twice as hard from the SRK side and that “there was a couple of times
that we got word that there were Serb civilians killed on one day, and then we could predict the next
day we would get mortars incoming in the area where I lived, yes. And that actually happened.”2695
758. UNPROFOR requested the SRK not to respond to an ABiH attack launched on 18
September 1994 by shooting into the city.2696 A witness described an ABiH attack on a Bosnian
Serb checkpoint on 6 October 1994, following which the Bosnian Serbs retaliated by firing into the
city and on civilians.2697 Gen. Smith recalled that at the end of May 1995, the VRS shelled all safe
areas in BiH, including Sarajevo, in response to the NATO bombing of the Pale ammunition depot
on 25 May 1995, which itself was a consequence of “flared up” fighting between the warring
factions on 24 May 1995.2698 Similarly, UNPROFOR reported that at the end of June and early July
1995, the “Bosnian Serbs have responded to the Bosnian Muslim offensive by resuming a fairly
indiscriminate bombardment of the downtown area, and by increasing sniper activity.”2699 Brig.
Gen. Fraser, in recalling an incident where the Bosnian Muslims had fired at the SRK headquarters
in Lukavica, said that “the barrage of fire” that came back from the Bosnian Serbs was not aimed at
the source of the Bosnian Muslim fire but “it was just fired at the city. In fact, it was firing all
around Debelo Brdo and the area just around Miljacka River, on the Muslim side.”2700 The SRK
2691 David Harland, 15 Jan 2007, T. 324 – 325; David Harland, P1, MT. 26953, 27004. Cf. Ljuban Mrkovi}, 12 July
2007, T. 8185 – 8186.
2692 David Harland, 16 Jan 2007, T. 454.
2693 Cornelis Hendrik Nicolai, 25 Jan 2007, T. 1049, 1051 – 1052, 1055 – 1056; Asam Butt, 15 Feb 2007, T. 2229 –
2231; Rupert Smith, 7 Mar 2007, T. 3349, 3392 – 3393, P334, p. 13; P20, UNPROFOR sitrep, 2 July 1995, p. 2; P103,
Protest letter, 1 July 1995, pp 1 – 2.
2694 David Harland, 16 Jan 2007, T. 455.
2695 Ronald Eimers, 20 Apr 2007, T. 4792 – 4793.
2696 David Harland, 15 Jan 2007, T. 387 – 388; D3, UNPROFOR Memo on 18 September 1994 ABiH attack, pp 2 – 3.
2697 W-46, 15 Mar 2007, T. 3821 – 3822, 3823 (closed session).
2698 Rupert Smith, 7 Mar 2007, T. 3322, P334, pp 13 – 14.
2699 P19, UNPROFOR sitrep, 2 July 1995, p. 2.
2700 David Fraser, 7 Feb 2007, T. 1796.
254
Case No IT-98-29/1-T 12 December 2007
could have defended their positions just as effectively by using less fire and causing fewer civilian
victims.2701
759. Civilians and civilian areas were sniped and shelled when the SRK had not achieved
particular military objectives. Following a failed attack by the SRK to take Debelo Brdo on 16 to 17
May 1995, “they rained Sarajevo town with artillery, with mortars; snipers were active all along
the confrontation line. … In those two days, I think, they were very heavy on civilians.”2702 Bakir
Naka{ recalled that shelling or sniping was more intense, and the number of casualties higher, after
failed negotiations or if some territories were lost elsewhere in BiH.2703
760. A further objective of the campaign was to maintain a psychological upper hand over
UNPROFOR in order to prevent the UN from taking action.2704 David Harland testified that
Mom~ilo Kraji{nik threatened the international community and the Bosnian Muslims in a similar
manner.2705 In his view, the Bosnian Serbs saw UNPROFOR as working contrary to their war effort
by facilitating humanitarian support and started to actively obstruct the effort of UNPROFOR to
bring humanitarian relief in Sarajevo.2706 He recalled that, in response to the threat of retailiatory
measures by the Security Council, Radovan Karad`i} threatened that the Bosnian Serbs would
attack the UN and that they would impose restrictions on utilities, like gas and water, to make life
more miserable for the Bosnian Muslims in Sarajevo unless the Security Council stopped
threatening the “essential lifeline” with Serbia.2707 Moreover, according to David Harland, the
nature of the campaign – causing small numbers of casualties in a large number of places – kept the
level of “terror” high but also forestalled any dramatic events around which an international
response would coalesce.2708
9. The Defence Challenge to the Prosecution Allegation of a “Campaign”
761. Throughout the trial, the Defence adduced evidence of shelling, sniping and other activities
by the ABiH. The Trial Chamber will analyse this evidence in the section containing the
Considerations on the Counts and determine its relevance to the Indictment, and where a finding of
relevance is made, the weight to be attached to that evidence. The evidence is set out here as part of
the case presented by the Defence.
2701 W-156, P625, p. 24 (under seal).
2702 Ghulam Muhammad Mohatarem, 19 Jan 2007, T. 713.
2703 Bakir Naka{, 25 Jan 2007, T. 1076 – 1077. See also, Ghulam Muhammad Mohatarem, 19 Jan 2007, T. 703, 740.
2704 W-156, 27 Apr 2007, T. 5331 (closed session), P625, pp 18, 21 (under seal); David Harland, P1, MT. 26936. W-46,
P387, p. 14 (under seal).
2705 David Harland, P1, MT. 27005.
2706 David Harland, P1, MT. 26955 – 26956.
2707 David Harland, P1, MT. 26979; P14, Notes of meeting between Smith and Karad`i}, dated 21 May 1995, p. 3.
2708 David Harland, 15 Jan 2007, T. 330 – 331.
255
Case No IT-98-29/1-T 12 December 2007
762. The Prosecution argued that the conduct of the ABiH and the suffering of the Bosnian Serb
population, although regretable, are not relevant to this case as the evidence pertaining to these
matters does not affect the criminal liability of the Accused.
(a) Shelling of SRK-held Territories
763. Evidence was presented regarding shelling by the ABiH.2709 Prosecution and Defence
witnesses testified that the ABiH fired, for example, mortars, from inside the confrontation lines,
including from Mount Igman,2710 Hrasnica and Mojmilo Hill,2711 Hum Hill,2712 Debelo Brdo,2713
olina Kapa2714 and Alipa{ino Polje.2715
764. Slobodan Bjelica, a journalist with the Bosnian Serbian newspaper in Grbavica (Sarajevske
Srpske Novine) during the Indictment period, testified that many buildings in Grbavica were
damaged by the ABiH with heavy weaponry in 1994 and 1995.2716 He testified that “mostly” the
destruction of these buildings happened during exchanges of fire, but on “quite a few occasions” it
happened during cease-fires.2717
765. Brig. Ghulam Muhammed Mohatarem, Chief UNMO for BiH from February 1995 to
January 1996, recalled two instances of ABiH shelling.2718 Lt. Col. Konings, UNMO in Sarajevo,
testified that although he never saw it personally, he heard from other UNMOs that the ABiH fired
mortars from inside the confrontation line but never had any proof of it.2719
766. Witnesses testified that certain roads in and around Sarajevo were shelled by the ABiH. The
Lukavica-Pale road, which was used by civilians for many purposes, including the transportation of
2709 Luka Jovi}, 14 June 2007, T. 6711; Milorad Kati}, 1 June 2007, T. 6018; D236, Analysis of consumption of
ammunition, dated 20 July 1995; D12, UNPROFOR weekly sitrep, 19 May 1995, p. 2.
2710 Branislav Duki}, 18 June 2007, T. 6788; Zoran Trapara, 26 June 2007, T. 7311; T-39, 21 June 2007, T. 6994 –
6995; T-41, 18 July 2007, T. 8525 – 8526; T-48, 25 Jun 2007, T. 7202; Sinisa Krsman, 6 June 2007, T. 6254 –6255;
Drazen Maunaga, 12 Jun 2007, T. 6486 – 6487; D333, Photograph marked by T-41; D334, Photograph of Ne|zarici.
2711 T-39, 21 June 2007, T. 6994 – 6995; T-48, 22 June 2007, T. 7149; Drazen Maunaga, 12 June 2007, T. 6486 – 6487.
See also, T-41, 18 July 2007, T. 8521; Milan Peji}, 21 June 2007, T. 7053; D330, Photograph marked by T-41; D332,
Photograph marked by T-41.
2712 T-41, 18 July 2007, T. 8524; D332, Photograph marked by T-41.
2713 Momilo Gojkovi, 13 July 2007, T. 8255. See also, Stevan Veljovi, 30 May 2007, T. 5860–5861; Dragan Simi,
5 June 2007, T. 6186, 6218–6219; D208, Photograph marked by Dragan Simi.
2714 Slobodan Bjelica, 24 July 2007, T. 8758 – 8759. Momilo Gojkovi, 13 July 2007, T. 8255, 8264; T-41, 18 July
2007, T. 8553–8554.
2715 T-60, 25 July 2007, T. 8793 – 8795 (private session), 8821; T-48, 22 June 2007, T. 7170 – 7171; D262, Photograph
marked by T-48; D352, Photograph marked by T-60 (under seal). See also, Sections II.E.3(c), II.E.5(b) and II.E.9(c)
and (d).
2716 Slobodan Bjelica, 24 July 2007, T. 8766 – 8768; D347, Photograph; D348, Photograph.
2717 Slobodan Bjelica, 24 July 2007, T. 8768 – 8769.
2718 Ghulam Muhammad Mohatarem, 19 Jan 2007, T. 701, 737 – 738; Cornelis Hendrik Nicolai, 24 Jan 2007, T. 990 –
991, 25 Jan 2007, T. 1014.
2719 Harry Konings, 12 Mar 2007, T. 3559 – 3560, 13 Mar 2007, T. 3624 – 3625
256
Case No IT-98-29/1-T 12 December 2007
people to hospitals, and by the military, was under “constant” targeting by the ABiH.2720 During
cross-examination, T-41 said that he was certain that the ABiH opened fire on the road because of
the location of their positions and agreed that it was “common knowledge” that the ABiH attacked
the road.2721 Milomir [oja, employee at Energoinvest Automatika from December 1994, heard that
on the road between Ilid`a and Pale, from Ilid`a to Rajlovac and towards Vogo{a, persons and
vehicles were often fired upon, although he did not say who was responsible for this firing.2722 The
Trial Chamber notes that the Defence stressed, on a number of occasions, the military importance of
the Lukavica-Pale road to the SRK. For example, in its Final Brief, the Defence submits, “had the
ABiH forces taken control of this route it could have caused the total defeat of the SRK.”2723
767. Evidence was presented regarding the deaths of civilians as a result of the shelling.2724
Vlastimir Glava{, a police officer in Ilid`a during the Indictment period, testified that on 28 August
1995, he got married at Vrelo Bosne, in the Ilid`a municipality.2725 As the wedding ceremony drew
to a close and guests started leaving the church, “shells started falling from the direction of Igman,
all around the church and my wedding guests.”2726 A total of 12 shells fell; 47 people were
wounded and a cousin of the bride was killed.2727 During cross-examination, Vlastimir Glava{
testified that the shells had come from Mount Igman, which he knew was held by the ABiH.2728 He
agreed with the Prosecution suggestion that it was “logical” to assume that “if shells land in your
area, it sic comes from the people surrounding you.”2729 An UNPROFOR sitrep recorded that the
Bosnian Serb Army had reported three mortar rounds had fallen on a church in Ilid`a.2730 In the
2720 Milorad Kati}, 1 June 2007, T. 6018, 6019, 6047 – 6048; Zoran Trapara, 26 June 2007, T. 7310, 7322 – 7323;
Momcilo Gojkovi}, 13 July 2007, T. 8253 – 8254; T-9, 16 July 2007, T. 8350 – 8351; Predrag Trapara, 27 June 2007,
T. 7377–7378, 7383; T-41, 18 July 2007, T. 8517 – 8520, 8545 – 8548; Slobodan Bjelica, 24 July 2007, T. 8761; T-15,
13 July 2007, T. 8301. See also, Vlajko Bo`i}, 17 July 2007, T. 8432 – 8433, 8435 – 8436; Milomir [oja, 25 Apr 2007,
T. 5168; D200, Map of Sarajevo marked by Milorad Kati; D310, Map marked by Momcilo Gojkovi}; D328,
Photograph marked by T-41; D329, Photograph marked by T-41; P908, Photograph marked by T-41.
2721 T-41, 18 July 2007, T. 8547 – 8548. See also, Ljuban Mrkovi, 12 July 2007, T. 8141–8142.
2722 Milomir [oja, 25 Apr 2007, T. 5168. See also, Vlajko Bo`i}, 17 July 2007, T. 8419 – 8420; D318, Photograph
marked by Vlajko Bo`i}.
2723 Defence Final Brief, para. 57.
2724 T-48, 22 June 2007, T. 7133 – 7134; Sini{a Krsman, 6 June 2007, T. 6258, 6260; Vlajko Bo`i}, 17 Jul 2007, T.
8433 – 8435; Zoran Samard`i}, 13 June 2007, T. 6636 – 6637; Andrey Demurenko, 5 July 2007, T. 7677; T-61, 9 Jul
2007, T. 7851 – 7852, 7863 – 7864; T-9, 16 July 2007, T. 8345, 8358 – 8359. See also, supra Section II.E.9(d) ABiH
Offensives; T-2, 20 June 2007, T. 6934 – 6935; Milorad Ko{orac, 26 July 2007, T. 8882; T-53, 11 June 2007, T. 6412;
Predrag Trapara, 27 June 2007, T. 7388; Stjepan Djuki}, 3 July 2007, T. 7527 – 7528; Stevan Veljovi}, 29 May 2007,
T. 5787 – 5788; D300, Official report of the RS Crime Police Department, dated 2 May 1995.
2725 Vlastimir Glava{, 24 July 2007, T. 8739 – 8740.
2726 Vlastimir Glava{, 24 July 2007, T. 8739 – 8740.
2727 Vlastimir Glava{, 24 July 2007, T. 8739 – 8740, 8745; D343, Official report of RS Police, dated 7 September 1995.
See also, T-39, 21 June 2007, T. 7000; Milan Peji}, 21 June 2007, T. 7044.
2728 Vlastimir Glava{, 24 July 2007, T. 8747 – 8748.
2729 Vlastimir Glava{, 24 July 2007, T. 8747 – 8748.
2730 P21, UNPROFOR sitrep, 28 August 1995, p. 1.
257
Case No IT-98-29/1-T 12 December 2007
report, it was stated that the ABiH was responsible for the shelling, although this information was
unconfirmed.2731
(b) Sniping into SRK-held Territories
768. There is evidence that the ABiH undertook sniping.2732 In a report to the UN Secretary-
General, David Harland testified that sniping was a way for the Bosnian Muslims to strike back
when “the Serbs” held most of the heavy weapons, controlled the high ground and most of the gas,
water and electricity.2733
769. There was evidence of the death or injury of Bosnian Serb civilians as a result of ABiH
sniping.2734 Milan Peji} recalled that during cease-fires, both civilians and military personnel were
injured by sniping, although there was not the large numbers of wounded that resulted from
shelling.2735 He testified: “It was very hard because there were children who were wounded in front
of the school, while riding bicycles, in the streets. There was civilians who were wounded, women,
children.”2736
770. As in Bosnian Muslim-held areas, tarpaulins and sheets were put up on lines across the
roads, and other barriers were constructed, in Bosnian Serb-held areas to block the view of the
snipers.2737 Passages were constructed so that civilians and soldiers could move from place to place
2731 P21, UNPROFOR sitrep, 28 August 1995, pp 4, 5.
2732 David Harland, 15 Jan 2007, T. 332, P2, MT. 28696, 28697. See also, W-46, 15 Mar 2007, T. 3816 (closed
session), P387, pp 14 – 15 (under seal); Vahid Karaveli, P492, p. 11, P493, p. 8, P494, GT. 11949 – 11953, 11957;
Ismet Hadži, 6 Mar 2007, T. 3257 – 3258, 6 Mar 2007, T. 3228 – 3231, 3284; David Harland, 16 Jan 2007, T. 459;
W-156, P625, p. 34 (under seal); John Jordan, P267, p. 8; D99, Order by Ned`ad Ajnad`i}, 14 Feb 1994, p. 1; D107,
Order by Fikret Prevljak, 26 June 1995, p. 1; D251, Order, 5 March 1993. See also supra, para. 77.
2733 David Harland, P2, MT. 28696.
2734 Vaso Elez, 7 June 2007, T. 6345 – 6346, 6379; T-41, 18 Jul 2007, T. 8494, 8495, 8497 – 8501, 8511, 8559 – 8560;
T-2, 20 June 2007, T. 6947; Martin Bell, 26 Apr 2007, T. 5253; D104, Report by FRY Committee for Compiling Data
on Crimes against Humanity and International Law, dated January 1998, p. 11; D220, Photograph marked by Vaso
Elez, 7 June 2007; D324, Photograph of Faculty of Mathematics and Natural Sciences; P207, UNPROFOR proposal of
assessment of Anti-sniping Agreement, 15 September 1994, p. 4; P391, UNPROFOR report, 17 November 1994, p. 2.
See also, Vlajko Bo`i}, 17 July 2007, T. 8419 – 8420; Milorad Ko{orac, 26 July 2007, T. 8882; Simo Tu{evljak, 11
July 2007, T. 8068 – 8069, 12 July 2007, T. 8105, 8117 – 8119; D300, Official report of RS Crime Police Department,
2 May 1995. Cf. Luka Jovi}, 18 June 2007, T. 6729 – 6730.
2735 Milan Peji}, 21 June 2007, T. 7038 – 7039.
2736 Milan Peji}, 21 June 2007, T. 7038 – 7039.
2737 Martin Bell, 27 Apr 2007, T. 5288 – 5289; T-48, 22 June 2007, T. 7170 – 7171; T-41, 18 July 2007, T. 8511 –
8512, 8537 – 8538; D325, Photograph; D327, Photograph of Ne|zarici; D355, Photograph; D338, Video. Note that in
cross-examination, the Prosecution stated that on the video, the drive appeared relaxed, contrary to the witness’s
testimony that there was constant danger: see T-41, 18 July 2007, T. 8540 – 8544; Slobodan Bjelica, 24 July 2007, T.
8761, 8771 – 8872; Vlastimir Glava{, 24 July 2007, T. 8746; T-48, 22 June 2007, T. 7167; Milan Mandi}, 4 July 2007,
T. 7608 – 7609; T-7, 19 June 2007, T. 6851; Milorad Kati}, 1 June 2007, T. 5992, 6033, 6034.
258
Case No IT-98-29/1-T 12 December 2007
concealed.2738 Slobodan Bjelica testified that there were “at least” 50 sign posts in Grbavica
warning people of the presence of snipers.2739
771. Witnesses testified that there were military targets, as well as civilians, in Grbavica.2740
According to David Harland, the sniper fire from the “Bosnian Government” “tended to be
concentrated from a relatively small number of buildings overlooking Grbavica.”2741 Several
witnesses testified that Grbavica was exposed to fire from numerous locations under the control of
the ABiH, for example, Mojmilo Hill, Debelo Brdo, the Loris Building, Hum Hill and Pofali}i.2742
772. Luka Jovi} testified that the ABiH was “constantly exerting pressure” on people living in
Dobrijna IV by firing shots from Dobrinja II and III.2743 T-60 testified that “prolonged bouts of rifle
fire” came from Alipa{ino Polje and that Vojni~ko Polje, an ABiH-held area between Neari}i and
Alipa{ino Polje, was known as the “lair of snipers.”2744
(i) Specific Sniping Incidents against Bosnian Serbs
773. On 11 March 1995 at approximately 1630 hours, the daughter of Ne|elko U~ur and another
young girl, were killed by ABiH sniper fire while in front of the building, Rave Jankovi} Street,
number 59, in Grbavica.2745 Ne|elko U~ur, soldier of the SRK 1st Sarajevo Brigade at the time, said
that three men in uniform, including himself, were also there and that the men in uniform were not
shot at.2746 The Prosecution submitted that the perpetrators of this sniping had been punished by the
Bosnian Muslim authorities.2747 Nedejko U~ur and Simo Tu{evljak could not confirm that the
2738 Radomir Visnji}, 25 June 2007, T. 7246 – 7247; T-41, 18 July 2007, T. 8497 – 8498; T-7, 19 June 2007, T. 6851;
D323, Photograph of apartment building in Dobrinja; D327, Photograph of Ne|zarici; D350, Photograph of Grbavica;
T-7, 19 June 2007, T. 6851.
2739 Slobodan Bjelica, 24 July 2007, T. 8770 – 8771; Ne|eljko U~ur, 26 July 2007, T. 8917 – 8918; D349, Photograph;
D355, Photograph.
2740 Zoran Trapara, 26 June 2007, T. 7321; Vaso Elez, 7 June 2007, T. 6340 – 6341: David Fraser, 7 Feb 2007, T. 1792
– 1793. See also, Slobodan Bjelica, 24 July 2007, T. 8764 – 8765.
2741 David Harland, 15 Jan 2007, T. 331 – 332.
2742 T-5, 25 June 2007, T. 7222; Radomir Visnji}, 25 June 2007, T. 7254–7255; Sinisa Krsman, 6 June 2007, T. 6254;
Vaso Elez, 6 June 2007, T. 6307, 6310, 6312 – 6313, 7 June 2007, T. 6324 – 6325, 6333 – 6334; Stevan Veljovi, 24
May 2007, T. 5719–5721, 29 May 2007, T. 5744–5745; Milorad Kati, 31 May 2007, T. 5981, 1 June 2007, T. 6036,
5 June 2007, T. 6157–6158; T-41, 18 July 2007, T. 8515–8516, 8521; Mirza Sabljica, 19 Apr 2007, T. 4742–4746;
Stevan Veljovi, 29 May 2007, T. 5744; Slobodan Bjelica, 24 July 2007, T. 8777–8779; D218, Photograph marked by
Vaso Elez; D331, Photograph marked by T-41.
2743 Luka Jovi}, 14 Jun 2007, T. 6697 – 6698, 6714. See also, D238, Report on consumption of ammunition, dated 20
June 1995.
2744 T-60, 25 July 2007, T. 8821, 8857.
2745 Ne|eljko U~ur, 26 July 2007, T. 8909 – 8910; Predrag Carkic, 19 June 2007, T. 6887 – 6888; Simo Tu{evljak, 11
July 2007, T. 8071, 8077 (private session); David Harland, 16 Jan 2007, T. 461, 464; Rupert Smith, P334, pp 9 – 10;
P24, UNPROFOR report, 12 March 1995, pp 1 – 2; D301, UNPROFOR report on sniping in Grbavica, dated 13 March
1995 (under seal). See also, Slobodan Bjelica, 24 July 2007, T. 8763; Milorad Kati}, 1 June 2007, T. 6037.
2746 Ne|eljko U~ur, 26 July 2007, T. 8911, 8918.
2747 See P24, UNPROFOR report, 12 March 1995, pp 1 – 2; P25, UNPROFOR cable, 14 March 1995, p. 2.
259
Case No IT-98-29/1-T 12 December 2007
perpetrators had been punished when confronted with this information during crossexamination.
2748
774. Vaso Elez, a soldier in the SRK 1st Sarajevo Brigade, testified that he had heard about
Bosnian Serbs who tried to cross the Miljacka River “and these attempts ended in the Miljacka.”2749
He also heard about attempts to cross sides, over a street near the Grbavica stadium.2750 An ABiH
combat report noted that on 15 October 1994, “at 2015 hours, our guard, who is at Palma, noticed
an escapee who tried to escape to the aggressor’s side. He opened fire and on that occasion he
wounded him.”2751 According to another ABiH combat report dated 7 April 1995, a woman was
similarly shot while attempting to cross into Novo Sarajevo around 1930 hours.2752 Milorad Kati}
acknowledged that the ABiH report on the incident only stated the facts of the incidents and did not
mention that the incident took place in the dark along the confrontation line.2753 During crossexamination,
Vaso Elez agreed with the Prosecution that this incident concerned an individual who
was trying to cross the lines between two opposing forces in the dark.2754 Vaso Elez went on to state
that there were “several cases” like the one described in the ABiH combat report; “I don’t know the
actual names involved but quite a few things like that happened.”2755
(c) Defence Allegations of Provocation by the ABiH
775. The Defence submitted that “units of the BH Army sometimes opened fire in order to draw
fire from SRK units so as to portray the latter to the international community as the side that
violated the cease-fire.”2756 Some witnesses testified that the SRK only fired in response to ABiH
firing.2757 In cross-examination, Martin Bell maintained his earlier statement that:
“If there was a general pattern to the fighting in the Sarajevo during the whole of the siege, it was
that the Muslims would attack outwards with small arms and infantry, and the Serbs would
respond with artillery because that was their strength. The world therefore got an impression that
Sarajevo was under constant and unprovoked bombardment. However, the war was being waged
by both sides. I would even say that the Muslims had a political interest in provoking the Serbs to
use their heavy artillery.”2758
776. According to Maj. Gen. Nicolai, UNPROFOR Chief of Staff from 28 February 1995 to 2
September 1995, the ABiH “regularly” fired from various locations around the city that were “very
2748 Ne|eljko U~ur, 26 July 2007, T. 8929 – 8930; Simo Tu{evljak, 12 July 2007, T. 8120 – 8122.
2749 Vaso Elez, 7 June 2007, T. 6327.
2750 Vaso Elez, 7 June 2007, T. 6327.
2751 D216, Daily combat report by Enis Srna, dated 15 October 1994; Vaso Elez, 7 June 2007, T. 6329, 6331 – 6332.
2752 Milorad Kati}, 1 June 2007, T. 6040 – 6041; D205, ABiH daily combat report by Sifat Pod`i}, dated 7 April 1995.
2753 Milorad Kati}, 4 June 2007, T. 6133, 6134 – 6135; D205, ABiH daily combat report by Sifat Pod`i}, 7 April 1995.
2754 Vaso Elez, 7 June 2007, T. 6358, 6359 – 6360.
2755 Vaso Elez, 7 June 2007, T. 6332 – 6333.
2756 See Defence Final Brief, para. 84.
2757 See e.g. Borislav Kova~evi}, 10 July 2007, T. 7938 – 7939; T-60, 25 July 2007, T. 8800.
2758 Martin Bell, 26 Apr 2007, T. 5272, D178, p. 14.
260
Case No IT-98-29/1-T 12 December 2007
often” “very close” to UN positions, namely the PTT Building, the Zetra ice stadium and the
Marshal Tito Barracks, and that it used “mobile mortars”.2759 He testified that he was informed
about such incidents by UNMOs and UNPROFOR personnel, from whom he had heard of
“definitely more” than ten other incidents of ABiH provocation.2760 In this regard, Maj. Gen.
Karaveli, Commander of the 1st Corps of the ABiH, denied knowledge of the existence of “mobile
mortars” within the ABiH and said that the term was fabricated by the SRK and promoted through
UNPROFOR, in order to conceal actions by the SRK.2761
777. There is evidence that there were varying opinions within UNPROFOR as to the reason the
ABiH shot from positions near to UNPROFOR’s location. While some assumed or believed that the
shooting was intended to draw SRK fire onto UNPROFOR, others noted UNPROFOR was used as
a shield for ABiH actions or that the proximity of the weapons near UNPROFOR positions was due
to an increase in weaponry in the city at that time.2762 An UNPROFOR report, dated 2 July 1995,
stated: “Either way, there has been an increase in the number of Serb shells hitting UNPROFOR
targets. The Sector does not consider this to be wayward counter-battery fire from the Serbs, but
direct targeting.”2763
778. Maj. Gen. Nicolai confirmed as “an example of the Bosnian attitude” an instance when
Hasan Muratovi}, a Minister in the Bosnian Muslim Government, complained about sniping at a
water distribution point in Hrasno and asked for UN protection.2764 Maj. Gen. Nicolai told Hasan
Muratovi} that placing the water distribution point on Heroes’ Square, near the confrontation line
and in full sight of the SRK, was a way of provoking the sniping and he suggested that the water
distribution point be moved to a safer location.2765
779. Some witnesses recalled specific instances of provocation.2766 Other witnesses rejected the
notion that the ABiH engaged in provocation. For example, Ismet Had`i} dismissed the suggestion,
as put to him by the Defence, that the ABiH provoked the SRK in Sarajevo in order to “attract the
2759 Cornelis Hendrik Nicolai, 24 Jan 2007, T. 964, 996 – 997, 25 Jan 2007, T. 1048 – 1049; P898, UNMO daily sitrep,
3 July 1995. See also, Rupert Smith, 7 Mar 2007, T. 3355 – 3556; W-156, 27 Apr 2007, T. 5372 – 5374 (closed
session); Luka Dragi~evi}, 26 Mar 2007, T. 4035; David Harland, 16 Jan 2007, T. 430.
2760 Cornelis Hendrik Nicolai, 25 Jan 2007, T. 1048. See also, Stevan Veljovi}, 29 May 2007, T. 5807.
2761 Vahid Karavelic, 27 Mar 2007, T. 4144 – 4145, P493, p. 5, P494, GT. 11884, 12030.
2762 Cornelis Hendrik Nicolai, 24 Jan 2007, T. 997 – 998; Rupert Smith, 7 Mar 2007, T. 3355 – 3556; W-156, 27 Apr
2007, T. 5356 – 5357 (closed session); D183, UNPROFOR HQ sitrep, 1 July 1995, p. 2; P19, UNPROFOR sitrep, 2
July 1995, p. 3.
2763 P19, UNPROFOR sitrep, 2 July 1995, p. 4.
2764 Cornelis Hendrik Nicolai, 24 Jan 2007, T. 1004.
2765 Cornelis Hendrik Nicolai, 24 Jan 2007, T. 1004.
2766 Martin Bell, 27 Apr 2007, T. 5287; Cornelis Hendrik Nicolai, 24 Jan 2007, T. 984 – 988; Momcilo Gojkovi}, 13
July 2007, T. 8254; Miroslav Peji}, 16 July 2007, T. 8368 – 8369; Radomir Visnji}, 25 June 2007, T. 7265; T-60, 25
July 2007, T. 8819 – 8820; D217, Interim combat report by Fikret Prevljak, 1 July 1995, pp 1 – 2; D237, Diagram
marked by Luka Jovi}.
261
Case No IT-98-29/1-T 12 December 2007
attention of the Serbian forces” and then focus ABiH operations outside Sarajevo.2767 W-137
rejected as “an insane idea” the Defence proposition that the ABiH fired from civilian areas, such as
water collection points, to provoke the SRK.2768
(d) ABiH Offensives
780. The Trial Chamber received a considerable amount of evidence, mainly presented by the
Defence, pertaining to offensives carried out by ABiH in and around Sarajevo during the Indictment
period, and particularly during the summer months of 1995.
781. There is evidence that ABiH offensive action increased in August and September 1994.2769
On 18 September 1994, the ABiH launched an attack on SRK positions in eastern Sarajevo,2770
including around [picasta Stijena, leading to SRK retaliatory action to retake territories.2771
According to Maj. Eimers, the ABiH also attacked western Sarajevo, attempting to break the siege
of Sarajevo from the “Igman Olympic Road area to get into the direction of Gorad`e” by firing 200
mortar shells an hour.2772 In addition, Zoran Trapara recalled that from August 1994, the ABiH
were regrouping outside Sarajevo, using the tunnel and via Mount Igman.2773 According to him, this
regrouping continued through May 1995 “and onwards”; the ABiH “were preparing for a frontal
attack on all Serb positions.”2774 The Trial Chamber notes that the 14th Division of the 1st Corps of
the ABiH had its command post in Tarin and its area of responsibility was the Igman area.2775
782. Following this period of military action, there was, according to a number of witnesses, a
“lull” in the fighting from the latter months of 1994 and until the summer months of 1995.2776 Other
evidence shows combat activity in and around Sarajevo during that time.2777
2767 Ismet Had`i}, 6 Mar 2007, T. 3289.
2768 W-137, 20 Feb 2007, T. 2514.
2769 D158, Order by Rasim Deli}, dated 2 November 1994; Vahid Karaveli}, 28 Mar 2007, T. 4240, P493, p. 3.
2770 David Harland, 15 Jan 2007, T. 387 – 389, P2, MT. 28687; D3, UNPROFOR Memo on 18 Sep 1994 ABiH attack;
D4, Memo of Pale and Sarajevo Meetings, 20 September 1994.
2771 An|elko Draga{, 22 June 2007, T. 7065 – 7066; Vlajko Bo`i}, 17 July 2007, T. 8429, 8467 – 8468; T-15, 13 July
2007, T. 8311; D156, Daily combat report by Vahid Karaveli}, dated 19 September 1994; Vahid Karaveli}, 28 Mar
2007, T. 4237.
2772 Ronald Eimers, 20 Apr 2007, T. 4807, P585, p. 5. See also, T-39, 21 June 2007, T. 6997; D187, Report on 1st Corps
combat achievements, 1 November 1994.
2773 Zoran Trapara, 26 June 2007, T. 7311. See also, T-2, 20 June 2007, T. 6934 – 6935; Borislav Kova~evi}, 9 July
2007, T. 7892; D275, Order by Fikret Prevljak, dated 6 August 1995; Ismet Had`i}, 6 Mar 2007, T. 3287, 3289.
2774 Zoran Trapara, 26 June 2007, T. 7311 – 7312. See also, Stevan Veljovi, 29 May 2007, T. 5759.
2775 Ismet Hadži, 6 Mar 2007, T. 3273.
2776 T-2, 20 June 2007, T. 6934 – 6935; T-5, 25 June 2007, T. 7214 – 7215; T-9, 16 July 2007, T. 8355 – 8356; T-39,
21 June 2007, T. 6998; T-52, 28 June 2007, T. 7436 – 7437; Zoran Trapara, 26 June 2007, T. 7304, 7311; Borislav
Kova~evi}, 9 July 2007, T. 7891; Stjepan Djuki}, 3 July 2007, T. 7513, 7514; Vlajko Bo`i}, 17 July 2007, T. 8431 –
8432; Ljuban Mrkovi}, 12 July 2007, T. 8144, 8164; Simo Tu{evljak, 11 July 2007, T. 8045 – 8046; Vlastimir Glava{,
24 July 2007, T. 8739; Dragan Simi}, 5 June 2007, T. 6175; Milorad Kati}, 1 June 2007, T. 6037; Martin Bell, 27 Apr
2007, T. 5280 – 5281; Andrey Demurenko, 5 July 2007, T. 7671, 12 July 2007, T. 8183 – 8184; P836, UNPROFOR
262
Case No IT-98-29/1-T 12 December 2007
783. According to Gen. Smith, UNPROFOR had observed from March 1995 “the general
opening up” of an ABiH offensive that began in June 1995.2778 Radovan Karad`i} informed Gen.
Smith, at a meeting on 5 April 1995, that the VRS had decided to launch a counter-attack, although
it was likely to bring the Bosnian Serbs into confrontation with the UN and NATO.2779 In addition,
Radovan Karad`i} told Gen. Smith that if the Bosnians launched an offensive to open up a land
corridor to Sarajevo, as his intelligence told him would happen, “we will take Sarajevo.”2780
784. The ABiH mounted a series of attacks against SRK positions in May 1995.2781 On 8 June
1995, Maj. Gen. Karaveli} ordered the 1st Corps to carry out a co-ordinated “simultaneous”
attack.”2782 According to Maj. Veljovi}, this operation, which began at 0310 hours on 15 June 1995,
was code-named “Operation T-95” and 61.5 per cent of the “total potential army of Bosnia and
Herzegovina” was involved, that is, between 130,000 to 135,000 men, against “a corps” of 18,000
men.2783 The evidence of the total number of ABiH soldiers as presented by Maj. Veljovi} is not
supported by other evidence, although his evidence regarding the number of soldiers in the SRK is
supported by other evidence, as discussed elsewhere in this Judgement.2784 The Trial Chamber notes
that, according to Stevan Veljovi}, the attack affected, for example, the areas of Viseko and Kaluk
towards Vogošca, @u~, Semizovac, the Ni{i}i river valley from the direction of Debelo Brdo,
Žlatiste, Hreša and the Lukavica Barracks.2785
785. There is detailed evidence before the Trial Chamber regarding this major ABiH offensive, in
which the “Bosnians attacked Serb positions all along the confrontation line, attacking out of the
sitrep, 28 December 1994; P873, UNMO daily sitrep, dated 26 January 1995; P874, UNMO daily sitrep, dated 14
February 1995.
2777 Milan Mandi}, 3 July 2007, T. 7561; Vlajko Bo`i}, 17 July 2007, T. 8413 – 8414; T-2, 20 June 2007, T. 6933,
6934; Borislav Kova~evi}, 9 July 2007, T. 7891; Simo Tu{evljak, 12 July 2007, T. 8111 – 8112; Sini{a Krsman, 6 June
2007, T. 6251; Zoran Trapara, 26 June 2007, T. 7307, 7311 – 7312; P866, UNPROFOR daily sitrep, dated 18
November 1994, p. 6; P867, UNPROFOR daily sitrep, 14 December 1994, p. 4; P877, UNMO daily sitrep, 28 February
1995, p. 8. See also, Louis Fortin, P27, p. 10; Ronald Eimers, P584, p. 4. See also, P765, Report on expenditure of
ammunition, 11 January 1995 (under seal), which records the use of ammunition by the SRK during November and
December 1994, including 136,080 7.62 mm bullets for automatic rifles and tracers, 900 sniper bullets and three aerial
bombs.
2778 Rupert Smith, 7 Mar 2007, T. 3379, 3392, P334, p. 7. See also, W-156, 27 Apr 2007, T. 5351 (closed session);
Ljuban Mrkovi}, 12 July 2007, T. 8144.
2779 Rupert Smith, P334, p. 10.
2780 Rupert Smith, P334, p. 11. See also, Ronald Eimers, P585, p. 9.
2781 Harry Konings, 13 Mar 2007, T. 3651 – 3652; Mom~ilo Gojkovi}, 13 Jul 2007, T. 8259 – 8260D308, Combat
report, dated 24 May 1995; Louis Fortin, P27, p. 10. See also, Stevan Veljovi}, 29 May 2007, T. 5773, 5775 – 5776;
D188, Interim combat report by Vahid Karaveli}, dated 5 May 1995; D189, Combat report by Vahid Karaveli}, dated 5
May 1995.
2782 D190, Order of Vahid Karaveli} for attack, dated 8 June 1995, p. 4. See also, Stevan Veljovi}, 29 May 2007, T.
5785.
2783 Stevan Veljovi}, 29 May 2007, T. 5784. See also, Martin Bell, 27 Apr 2007, T. 5287; Zoran Trapara, 26 June 2007,
T. 7315; D191, Daily combat report, dated 16 June 1995; D192, Combat report, dated 16 June 1995.
2784 See supra, Section II.B.1(b) ABiH and 1st Corps, and para. 69.
2785 Stevan Veljovi}, 29 May 2007, T. 5787.
263
Case No IT-98-29/1-T 12 December 2007
city, and into it, from the South, West and North”.2786 The offensive was intended to “break the
siege of Sarajevo”.2787 Maj. Veljovi} testified that, from 15 June 1995 until 21 June 1995, there
were “intensive” attacks on the northern and southern fronts.2788
786. T-53 stated that as a result of the ABiH attacks, the civilians on the territory held by the
SRK were “concerned about their lives” and the lives of their families.2789 He testified:
“everyone rose to defend the Serb positions, from those aged 18 to senior citizens who were still
strong enough to carry a weapon. Rest assured that this was the only reason that the area was
actually defended. The BH army operations were incredible, mind-boggling, the fiercest since the
beginning of the war. Only those determined to defend their homes could remain.”2790
787. Evidence shows that the attacks were “fierce” in the last week of June 1995 and the first
week of July 1995, with attacks along several parts of the confrontation lines, including
Grbavica,2791 Dobrinja I and IV, Hrasno, the Lukavica-Trebevi}-Pale road and [picasta Stijena.2792
Furthermore, UNPROFOR reported that on 28 June 1995, “the BiH launched an infantry attack
against Serb-populated settlement of Neari}i, supported by mortar and artillery fire. The attack
was repelled.”2793 Another witness testified that Neari}i was inhabited by civilians, as were other
areas, but there were also Bosnian Serb trenches and military facilities.2794 Still further witness and
documentary evidence concerns ongoing combat actions throughout July2795 and August 1995.2796
2786 W-156, 27 Apr 2007, T. 5350 – 5351, 5362 – 5363 (closed session); P16, UNPROFOR sitrep, 24 June 1995, pp 1-
2; D159, Report by Fikret Prevljak on active combat actions, dated 4 July 1995; T-53, 11 Jun 2007, T. 6409; D139,
SRK report on 15 June 1995 ABiH offensive, dated 16 June 1995, p. 1; D118, Report by Fikret Prevljak, dated 4 July
1995. Evidence was also presented regarding attacks that took place on 20 and 21 June 1995: T-2, 20 Jun 2007, T.
6977; D217, Interim combat report by Fikret Prevljak, I July 1995, p. 1; D313, Combat report, dated 20 June 1995;
P777, 1st Ilid`a Infantry Brigade command daily report, 21 June 1995, p. 1. See also, Zoran Samard`i}, 13 Jun 2007, T.
6636; Rupert Smith, P334, p. 15; P891, UNMO daily sitrep, 17 June 1995; P892, UNMO daily sitrep, dated 18 June
1995.
2787 Differing views as to the purpose of this offensive were presented before the Trial Chamber. D282, Report by Vahid
Karaveli}, dated 15 June 1995, p. 1, stated the objective of the offensive was “to break the siege of Sarajevo”; W-156,
27 Apr 2007, T. 5372 – 5374 (closed session). D183, UNPROFOR HQ sitrep, 1 July 1995, p. 2, reported that the
“Bosnian objectives seem to be to tie down Serb forces around the city, while they chip away at the Serb defenses in
areas of their choosing”; D107, Report by Fikret Prevljak, 26 June 1995. Cf. T-53, 11 Jun 2007, T. 6410.
2788 Stevan Veljovi}, 29 May 2007, T. 5787, 5793 – 5794. See also, T-9, 16 July 2007, T. 8355 – 8358; Asam Butt, 15
Feb 2007, T. 2237; Vaso Elez, 7 June 2007, T. 6333 – 6334; Luka Dragi~evi}, 26 Mar 2007, T. 4025.
2789 T-53, 11 June 2007, T. 6411. See also, Simo Tu{evljak, 11 July 2007, T. 8045 – 8046.
2790 T-53, 11 June 2007, T. 6411. See also, T-2, 20 June 2007, T. 6934 – 6935.
2791 Vaso Elez, 7 June 2007, T, 6340 – 6341, 6342; D220, Photograph marked by Vaso Elez.
2792 Sini{a Krsman, 6 Jun 2007, T. 6257 – 6258; D273, Combat report by Fikret Prevljak, dated 25 June 1995; Radomir
Visnji}, 25 Jun 2007, T. 7262 – 7263; D107, Report by Fikret Prevljak, 26 June 1995; Sini{a Krsman, 6 Jun 2007, T.
6257 – 6258. See also, Zoran Trapara, 26 Jun 2007, T. 7315 – 7317, 7320 – 7321; Predrag Trapara, 27 Jun 2007, T.
7385 – 7387; P19, UNPROFOR sitrep, 2 Jul 1995, p. 2; Vaso Elez, 7 Jun 2007, T. 6335, 6341, 6342; D217, Interim
combat report by Fikret Prevljak, 1 July 1995, p. 1; D220, Photograph marked by Vaso Elez; D313, Combat report, 26
June 1995; P847, UNMO daily sitrep, dated 22 June 1995; Radomir Visnji}, 25 Jun 2007, T. 7262 – 7263.
2793 D183, UNPROFOR HQ sitrep, 1 July 1995, p. 2. See also, Louis Fortin, 16 Jan 2007, T. 476; W-156, 27 Apr 2007,
T. 5354 – 5355 (closed session), P19, UNPROFOR sitrep, 2 July 1995; P767, Request for ammunition, 22 June 1995.
2794 W-156, 27 Apr 2007, T. 5377 (closed session). See also, T-48, 22 June 2007, T. 7147–7148, 7158; T-52, 28 June
2007, T. 7426, 7436, 7443.
2795 Goran Kova~evi}, 13 June 2007, T. 6563; T-48, 22 June 2007, T. 7145; T-52, 28 June 2007, T. 7438; T-52, 28 June
2007, T. 7439. See also, Vahid Karaveli}, 29 Mar 2007, T. 4251; D61, Order by Fikret Prevljak, 6 July 1995; D219,
264
Case No IT-98-29/1-T 12 December 2007
788. A number of Defence witnesses also gave evidence regarding combat activity in areas of
BiH that may be considered to be outside the geographical scope of the Indictment, including,
Semizovac-Srednje, the Vare{ municipality and the Ni{i}i Plateau2797 and the Treskavica and
Trnovo area.2798 Borislav Kova~evi} explained that during the ABiH attack on SRK positions at the
Ni{i}i Plateau on the morning of 15 June 1995, there was a lot of shelling and that while shells
landed on the frontlines, shells also “overshot, landing in the rear on civilians.”2799 Milan Peji}, a
doctor during the war, testified that in 1995 there were “intense attacks”, particularly in the Bla`uj
area by the ABiH.2800 He said that this was a “well-known offensive in which we had a large
number of wounded” and that it was “just shelling, indiscriminate shelling.”2801
(e) Effect of Conflict on Bosnian Serbs
789. The Trial Chamber heard evidence that the Bosnian Serb civilians who lived in and around
Sarajevo suffered hardships during the conflict.2802 Martin Bell testified that while there were fewer
civilians in SRK-held areas, because those who were not men of military age could get out, there
was anger and anxiety about the sniper activity and, in that regard, “there was no monopoly of
suffering and that certainly … applied to the Serbs.”2803 T-60 testified that the conflict was very
hard for “all citizens” but that the Bosnian Serb population living in the ABiH-held territory “had
Order by Enver Hadzihasanovi} for Rasim Deli}, dated 11 July 1995; Vaso Elez, 7 June 2007, T. 6344, 6368 – 6370;
D272, Report by Fikret Prevljak, dated 21 July 1995. See also, P764, Photograph marked by Vaso Elez; Radomir
Visnji}, 25 June 2007, T. 7260 – 7261; P898, UNMO daily sitrep, 3 July 1995; P901, UNMO daily sitrep, dated 6 July
1995; P850, UNMO daily sitrep, 9 July 1995; P849, UNMO daily sitrep, 20 July 1995; P903, UNMO daily sitrep, dated
21 July 1995; P843, UNMO daily sitrep, 23 July 1995; P848, UNMO daily sitrep, dated 26 July 1995; P19,
UNPROFOR sitrep, 2 July 1995, p. 1; W-156, 27 Apr 2007, T. 5354 – 5355 (closed session); Cf. Luka Dragi~evi}, 26
Mar 2007, T. 4051; Stevan Veljovi}, 29 May 2007, T. 5784 – 5785; Ronald Eimers, P585, p. 9.
2796 T-53, 11 Jun 2007, T. 6412 – 6413; D62, Order by Fikret Prevljak, 23 Aug 1995; P840, UNMO daily sitrep, dated
15 August 1995, p. 2; P841, UNMO daily sitrep, 19 August 1995; P842, UNMO daily sitrep, 21 August 1995; P845,
UNMO daily sitrep, dated 29 August 1995; P851, UNMO daily sitrep, dated 30 August 1995; P768, Order issuing SRK
units with air bombs, 24 August 1995.
2797 Stevan Veljovi}, 29 May 2007, T. 5799; Vlastimir Glava{, 24 July 2007, T. 8732; Dragan Simi}, 5 June 2007, T.
6173, 6175; Vlajko Bo`i}, 17 July 2007, T. 8430 – 8436; Stjepan Djuki}, 3 July 2007, T. 7526 – 7528; Borislav
Kova~evi}, 9 July 2007, T. 7890 – 7893; T-9, 16 July 2007, T. 8350 – 8351,8354 – 8356; Drazen Maunaga, 12 June
2007, T. 6507; Miroslav Peji}, 16 July 2007, T. 8373 – 8374; D282, Report by Vahid Karaveli}, 15 June 1995; D290,
Report from Kakanj Command Post, dated 7 November 1994; D474, Regular combat report by Izet Berkovac, dated 18
June 1995; P766, Request for ammunition, 16 June 1995.
2798 Stevan Veljovi}, 29 May 2007, T. 5771 – 5773; Rade Ivanovi}, 4 July 2007, T. 7642 – 7643; T-53, 11 June 2007,
T. 6400; T-61, 9 July 2007, T. 7852 – 7853; Drazen Maunaga, 12 June 2007, T. 6497 – 6498, 6507; Radomir Visnji},
25 June 2007, T. 7260; D188, Interim combat report by Vahid Karaveli}, 5 May 1995.
2799 Borislav Kova~evi}, 9 July 2007, T. 7893 – 7894.
2800 Milan Peji}, 21 June 2007, T. 7039.
2801 Milan Peji}, 21 June 2007, T. 7039.
2802 Vaso Elez, 7 June 2007, T. 6346 – 6347; Cf. Stevan Veljovi}, 31 May 2007, T. 5929.
2803 Martin Bell, 26 Apr 2007, T. 5253.
265
Case No IT-98-29/1-T 12 December 2007
particular difficulties taking this in.”2804 The Trial Chamber also heard evidence that the effects of
the siege were especially acute for the civilians living inside the confrontation lines.2805
790. In Bosnian Serb territory, the population faced difficulties getting food, water and
electricity.2806 Vaso Elez testified that the sanctions imposed on RS by Serbia and Montenegro
exacerbated the food shortage and Bosnian Serb civilians and soldiers outside the confrontation
lines relied upon humanitarian aid.2807 Zoran Trapara testified that the Bosnian Serb population was
in a “worse” situation than the population within the confrontation lines: “They were being financed
by the whole world. They brought food to Sarajevo by plane. 90 per cent of the food that came to
Sarajevo was sent to the town. Nothing reached the Serb parts.”2808 However, T-61 testified that, as
far as he was aware, food supplies were “somewhat better” on the Bosnian Serb side, than on the
Bosnian Muslim side, although he testified that humanitarian aid was distributed “very unevenly, to
the detriment of the Serb side.”2809
791. People were very fearful.2810 Zoran Trapara recalled, “my house, where I lived, where I
slept, was 2 or 300 metres away from the front line, and it was exposed to sniper fire and barrage
fire on a daily basis and shelling as well from the Muslim side.”2811 Luka Jovi} testified that he and
his family rarely went outside and, when they did, they left through a window in a neighbouring
apartment.2812 It was too dangerous to leave Dobrinja IV during the day because one might be shot,
so they left to get food only at night.2813
792. With regard to the period of the ABiH offensive, Col. Dragi~evi} testified that it was not
possible to conduct investigations into the deaths of civilians on SRK-held territory, “we were not
even able to bury them peacefully.”2814 Simo Tu{evljak confirmed that the Bosnian Serb police sent
217 official reports of its investigations into “war crimes” committed against Bosnian Serb civilians
2804 T-60, 25 Jul 2007, T. 8799. See also, Slobodan Bjelica, 24 Jul 2007, T. 8772 – 8773; Ljuban Mrkovi}, 12 Jul 2007,
T. 8184 – 8185.
2805 Martin Bell, 26 Apr 2007, T. 5264; David Harland, 15 Jan 2007, T. 372. Cf. Rupert Smith, 7 Mar 2007, T. 3380.
2806 Ljuban Mrkovi}, 12 July 2007, T. 8184 – 8185; T-61, 9 July 2007, T. 7883. See also, Zoran Samard`i}, 13 June
2007, T. 6635; Milorad Kati}, 1 June 2007, T. 6031 – 6032; Luka Jovi}, 14 June 2007, T. 6700; D354, Photograph.
2807 Vaso Elez, 7 June 2007, T. 6323, 6346. Trial Chamber notes that according to David Harland, on 4 August 1994,
the FRY imposed sanctions on the VRS, which remained in force when the Accused became SRK Commander: David
Harland, 15 Jan 2007, T. 391 – 392. See also, Zoran Samard`i}, 13 June 2007, T. 6629 – 6630; Goran Kova~evi}, 12
June 2007, T. 6556; Zoran Trapara, 26 June 2007, T. 7351 – 7352.
2808 Zoran Trapara, 26 June 2007, T. 7351 – 7352.
2809 T-61, 9 July 2007, T. 7883.
2810 Ljuban Mrkovi}, 12 July 2007, T. 8184 – 8185; T-61, 9 July 2007, T. 7883; T-48, 22 June 2007, T. 7133 – 7134;
Simo Tu{evljak, 11 July 2007, T. 8045; Milorad Kati}, 1 June 2007, T. 6014 – 6015; Drazen Maunaga, 12 June 2007,
T. 6506 – 6507; Miroslav Peji}, 16 July 2007, T. 8390.
2811 Zoran Trapara, 26 June 2007, T. 7350.
2812 Luka Jovi}, 14 June 2007, T. 6700.
2813 Luka Jovi}, 14 June 2007, T. 6705 – 6706. See D235, Map marked by Luka Jovi}.
2814 Luka Dragi~evi}, 26 Mar 2007, T. 4040 – 4041.
266
Case No IT-98-29/1-T 12 December 2007
to the Office of the Prosecutor of the Tribunal.2815 According to Ivica Milosavljevi}, between 1991
and 1995, autopsies were performed on 4,000 people killed in “war-affected areas” and he carried
out 1,000 external examinations in order to establish the cause of death of persons killed in the
“war-affected areas.”2816 Furthermore, there are Bosnian Serbs whose fate remains unknown.2817
793. Defence witnesses expressed their views that the death of Bosnian Serbs was never
publicised. Slobodan Bjelica testified that “we” received reports every day about civilian casualties
in Bosnian Serb territory, but that despite trying to disseminate information about the suffering of
the Bosnian Serbs to the international press, nothing was published.2818 T-5, who lived in Grbavica
during the conflict, testified that “we listened to Muslim media non-stop”, which referred to the
killing of “scores” of “Serbian soldiers” but never mentioned the deaths of civilians, while
describing the situation on the Bosnian Muslim side in opposite terms: “We felt this was adding
insult to injury.”2819
General Findings on Sniping and Shelling
794. There is abundant evidence from specific incidents as well as from other witness and
documentary evidence about general sniping locations and targets, that sniper fire against civilians
within the confrontation lines primarily came from SRK-held territory.2820 As a result of the
sniping, civilians were seriously injured or killed. The Trial Chamber finds that the only reasonable
inference to be drawn from this evidence is that the shots, originating from SRK-held territory, were
fired by members of the SRK.
795. In relation to the Defence allegation that the ABiH shelled Bosnian Muslims living within
the confrontation lines, the Trial Chamber notes that it heard no such evidence. Instead, the Trial
Chamber heard evidence from a number of witnesses, including UN officials, that the ABiH did not
shell their own population. The Trial Chamber further notes that allegations about the ABiH staging
incidents for propaganda purposes or to gain sympathy, was not supported by evidence showing
that such cases actually occurred. The Trial Chamber finds that the most that can be made of the
evidence presented is that there were rumours, primarily from the SRK-side, that the ABiH shelled
civilians living within the confrontation lines and staged incidents in order to gain sympathy from
the outside world.
2815 Simo Tu{evljak, 11 July 2007, T. 8063, 8081 – 8083.
2816 Ivica Milosavljevi}, 24 Aug 2007, T. 9237
2817 David Harland, P1, MT. 27012 – 27013.
2818 Slobodan Bjelica, 24 July 2007, T. 8761 – 8764.
2819 T-5, 25 June 2007, T. 7215.
2820 See supra, Section II.B.3 Areas of Responsibility and Confrontation Lines - SRK and 1st Corps of the ABiH;
Section II.E.1 - II.E.4, II.E.8.
267
Case No IT-98-29/1-T 12 December 2007
796. The Trial Chamber heard voluminous evidence that shelling against civilians within the
confrontation lines primarily came from SRK-held territory and that, as a result of the shelling,
civilians were seriously injured or killed. This evidence includes witness testimony from military
officials, UN personnel, local residents and victims. The Trial Chamber finds that the only
reasonable inference to be drawn from this evidence is that the shells, originating from SRK-held
territory, were launched by SRK troops.
797. The Defence argued that an armed conflict between the ABiH and the VRS existed prior to
the Indictment period and that this conflict was fought at a very high level of intensity. In particular,
the Defence argued that the terror that existed, and with which the Accused is charged, was a result
of this armed conflict. The Trial Chamber rejects the argument that the terror with which the
Accused is charged resulted from the intensity of the armed conflict. No evidence was brought to
support that submission.
798. In relation to the submission that the ABiH launched offensives resulting in the death of
Bosnian Serbs, the Trial Chamber finds that although evidence has been presented of such offences
and deaths, no submission was made linking those ABiH activities with the criminal liability of the
Accused. To put it more bluntly, in the circumstances of this case, the Trial Chamber does not see
how this could exonerate the Accused.
799. The Trial Chamber takes this opportunity to express its sympathy for all victims of the
conflict, both Bosnian Muslims and Bosnian Serbs.
F. Evidence Relating to Role Accused
(a) Leadership of the Accused
800. David Harland testified that the Accused was a forceful and commanding personality with a
“rather more commanding presence” than his predecessor Gen. Gali.2821 He appeared “competent
as a commander”, but at the same time seemed to be “somewhat troubled by what he was
doing.”2822 Col. Dragievi and Maj. Veljovi testified that the Accused was a “man of high moral
values”, an “altruist”, “a professional of the highest ranking”, “an extraordinary personality” and
that his personality was “commendable”.2823
2821 David Harland, 15 Jan 2007, T. 353.
2822 David Fraser, 7 Feb 2007, T. 1782.
2823 Luka Dragievi, 26 Mar 2007, T. 3989 – 3990; Stevan Veljovi, 31 May 2007, T. 5925.
268
Case No IT-98-29/1-T 12 December 2007
801. The SRK headquarters in Lukavica functioned well.2824 According to Col. Dragievi, the
Accused made decisions on the basis of proposals by his officers, such as his assistant commanders
or the Chief of Staff.2825 The Accused held regular meetings with his subordinate staff, once or
twice a month, and held briefings after visiting the confrontation lines.2826
802. Maj. Eimers, Maj. Veljovi and Col. Dragievi testified that the Accused held a “tight
chain of command” and that the command structure under the Accused was “rather rigid”.2827 There
is evidence that the Accused, while being Deputy Commander and Chief of Staff of the SRK, tried
to improve the level of command and control within the SRK.2828 After he had become SRK
Commander, the Accused also issued orders aimed at improving command and control within the
corps.2829 For example, on 16 September 1994, the Accused ordered that regular combat reports
accounting for the situation at 1500 hours each day be delivered on a daily basis to the SRK
command by 1600 hours.2830
803. There is also evidence that the Accused, in his capacity as SRK Commander, controlled the
use of ammunition.2831 For example, on 23 April 1995, he ordered all unit commands to submit
information on the daily use of all types of ammunition. He also ordered that the quantities of
ammunition issued and consumed be monitored and registered.2832 On several occasions, he warned
subordinate officers not to allow unnecessary use of ammunition.2833
2824 Rupert Smith, 7 Mar 2007, T. 3360; John Jordan, P267, p. 9. See also supra, Section II.B.1(a) VRS and SRK.
2825 Luka Dragievi, 27 Mar 2007, T. 4067. See also, Luka Dragievi, 27 Mar 2007, T. 4062 – 4063; Stevan Veljovi,
31 May 2007, T. 5911. See e.g. P679, Order about meeting with brigade and individual unit commanders, dated 2
January 1995.
2826 Luka Dragievi, 27 Mar 2007, T. 4062 – 4063; Stevan Veljovi, 30 May 2007, T. 5832, 5840. See also, P735,
Order on meeting between the corps commander and unit commanders, dated 14 September 1995.
2827 Ronald Eimers, 20 Apr 2007, T. 4789 – 4790; Stevan Veljovi, 29 May 2007, T. 5764; W-156, P625, p. 9, 32
(under seal). See also, Luka Dragievi, 26 Mar 2007, T. 3999 – 4000.
2828 David Fraser, 8 Feb 2007, T. 1824; P208, Order by SRK Deputy Commander, dated 29 July 1994.
2829 P671, Clarification order by the SRK Commander, dated 16 September 1994; P676, Warning by the SRK
Commander, dated 22 November 1994; P678, Order by the SRK Commander, dated 26 November 1994; P686, Order
by the SRK Commander on daily reporting, dated 22 January 1995; P730, Order by the SRK Commander, dated 30 July
1995.
2830 P671, Clarification order by the SRK Commander, 16 September 1994 See also, P686, Order by the SRK
Commander on daily reporting, 22 January 1995.
2831 P702, Order by SRK Commander re ammunition, dated 23 April 1995; P710, Order by the SRK Commander re
unnecessary use of ammunition, dated 22 May 1995; P723, Warning by the SRK Commander re ammunition, dated 19
July 1995; P728, Order by the SRK Commander re ammunition, dated 26 July 1995.
2832 P702, Order by SRK Commander re ammunition, 23 April 1995.
2833 P710, Order by the SRK Commander, 22 May 1995; P723, Warning by the SRK Commander re ammunition, 19
July 1995; P728, Order by the SRK Commander re ammunition, 26 July 1995.
269
Case No IT-98-29/1-T 12 December 2007
804. The Accused regularly toured the confrontation lines and visited the different SRK units at
their positions.2834 Col. Dragievi testified that he spent 90 per cent of his time in the field with
subordinate units.2835 The Accused also visited the Bosnian Serb civilian population.2836
805. Maj. Veljovi testified that the Accused was highly respected by the officers and soldiers
because “he was always there where the fighting was at its worst. He was not always just sitting in
his office or where the civilians were.”2837 Other Defence witnesses confirmed that the Accused was
highly esteemed by the soldiers because he visited them at the confrontation lines and because he
took good care of their needs.2838
806. Maj. Veljovi said that the Accused was “the only corps commander who visited virtually
every trench. This was supposed to be done by an operations officer, but, no, he was the one always
in the field.”2839 The Accused himself highlighted this aspect in a letter to Gen. Mladi dated 19
May 1996, in which he presents a review of his work as SRK Commander. In the letter, the
Accused claimed that:
“I never stayed away from my troops for a single day, nor did I ever work in any commands.
Nevertheless, I was always a commander, both up to company level and above, only in part
serving as Chief of Staff. Had it not been for my success and the huge effort that I put in, I would
never have lasted in these respective roles for this long.”2840
He continued:
“During my further involvement with the SRK, my commitment never wavered. There was no
task that I found difficult, and key features were liberated that were of strategic significance to the
defence of the SRK’s zone of responsibility in the June offensive back in 1995. The two-month
large-scale enemy offensive was stopped and crushed without any panic in 1995.
My control of the situation was fully consolidated.”2841
807. When the Accused became commander, the military situation stabilised and the SRK
strengthened their positions.2842 Maj. Veljovi testified that the Accused’s position was that the
2834 Stevan Veljovi, 29 May 2007, T. 5770, 20 May 2007, T. 5837; Zoran Trapara, 26 June 2007, T. 7348 – 7349;
Anelko Dragaš, 22 June 2007, T. 7067; Vaso Elez, 7 June 2007, T. 6326, 6360 – 6361; Stjepan Djuki, 3 July 2007, T.
7513 – 7514; Milorad Ko{orac, 26 July 2007, T. 8871 – 8872, 8873; Milorad Kati, 1 June 2007, T. 6058 – 6059;
Sinisa Krsman, 6 June 2007, T. 6266 – 6267; Goran Kovaevi, 13 June 2007, T. 6582 – 6583; Luka Dragievi, 26
Mar 2007, T. 3999 – 4000; Dragan Simi, 5 June 2007, T. 6172 – 6173, 6177.
2835 Luka Dragievi, 26 Mar 2007, T. 3989. See also, Sinisa Krsman, 6 June 2007, T. 6267.
2836 T-39, 21 June 2007, T. 6998; Anelko Dragaš, 22 June 2007, T. 7067; Milorad Kati, 1 June 2007, T. 6032 – 6033.
2837 Stevan Veljovi, 30 May 2007, T. 5837.
2838 Anelko Dragaš, 22 June 2007, T. 7067, 7122; Sinisa Krsman, 6 June 2007, T. 6266 – 6267; Radomir Visnji, 25
June 2007, T. 7259 – 7260; Dragan Simi, 5 June 2007, T. 6215; Milorad Kati, 1 June 2007, T. 6032 – 6033, 6058,
6005 – 6006; Milorad Ko{orac, 26 July 2007, T. 8874 – 8875.
2839 Stevan Veljovi, 31 May 2007, T. 5926 – 5927; Stevan Veljovi, 30 May 2007, T. 5840; Anelko Dragaš, 22 June
2007, T. 7122.
2840 P738, Letter by SRK Commander to Gen. Ratko Mladi, dated 19 May 1996, p. 2.
2841Ibid., p. 3.
2842 Borislav Kovaevi, 9 July 2007, T. 7891; Stjepan Djuki, 3 July 2007, T. 7534 – 7535.
270
Case No IT-98-29/1-T 12 December 2007
corps should take defensive positions because the SRK expected attacks by the ABiH “any minute”
and because the corps had “suffered enormous losses in the preceding period of the war”.2843
(b) Involvement in and Awareness of Shelling and Sniping
808. The Trial Chamber was presented with evidence relating to the involvement of the Accused
in crimes committed by SRK forces in Sarajevo, in particular, in the sniping and shelling of
civilians. The Prosecution argues in its Closing Brief that evidence in this case shows the Accused
had effective control over the SRK as a whole.2844
(i) Effective Control
809. Prosecution and Defence witnesses testified that the Accused exercised “effective
command” over the SRK and over operations around the city of Sarajevo and that the chain of
command functioned well.2845 In the view of Maj. Eimers, the Bosnian Serbs had excellent
command and control by phone and by radio.2846 Orders were often communicated to the lower
levels orally, again by phone or radio.2847 The operation centres of the brigades received daily
reports and prepared reports which were sent to the corps command.2848 The corps operations centre
could also enquire from brigade operations officers whether certain orders were carried out.2849
810. There is evidence about the relationship between the Main Staff of the VRS and the SRK
command. Col. Dragievi testified that the responsibilities and duties of the corps commander
were clearly set.2850 Maj. Veljovi testified that the Accused could order assault actions in relation
to smaller features, but he had to seek approval from a superior command for wider scale action.2851
Col. Dragievi testified that the Accused always abided by the decisions of the Main Staff of the
VRS.2852 Brig. Gen. Fraser affirmed the superior-subordinate relationship between Gen. Mladi and
the Accused.2853 Another witness stated that, in his opinion, all the incidents in Sarajevo were
“orchestrated, guided, and designed” by Gen. Mladi and that liaison officer Col. Ini was
2843 Stevan Veljovi, 29 May 2007, T. 5770 – 5771.
2844 Prosecution Closing Brief, pp 128 – 135, 138 – 140.
2845 David Fraser, 7 Feb 2007, T. 1784, 8 Feb 2007, T. 1810 – 1811; Ronald Eimers, 20 Apr 2007, T. 4790; Cornelis
Hendrik Nicolai, 25 Jan 2007, T. 1046; Predrag Trapara, 27 June 2007, T. 7389; Milorad Kati, 1 June 2007, T. 6059 –
6060; P1, MT. 26951, 25691; W-156, P625, p. 9 (under seal).
2846 Ronald Eimers, 20 Apr 2007, T. 4788 – 4790, P585, p. 8.
2847 Milorad Kati, 1 June 2007, T. 6059 – 6060; T-2, 20 June 2007, T. 6931; T-48, 22 June 2007, T. 7153; Stevan
Veljovi, 30 May 2007, T. 5837.
2848 Stevan Veljovi, 30 May 2007, T. 5824 – 5825.
2849 Stevan Veljovi, 30 May 2007, T. 5832.
2850 Luka Dragievi, 27 Mar 2007, T. 4065.
2851 Stevan Veljovi, 31 May 2007, T. 5953 – 5955.
2852 Luka Dragievi, 26 Mar 2007, T. 3991.
2853 David Fraser, 8 Feb 2007, T. 1818 – 1819.
271
Case No IT-98-29/1-T 12 December 2007
“Mladi’s eyes” and had more power than the Accused.2854 He described the Accused as “a man of
straw”.2855 In court, during examination-in-chief, the witness clarified that what he meant to express
was that, in the overall military structure and organisation, Gen. Mladi decided on the strategic
conception and design of the operations while the Accused was the one who carried them out and
had operational and tactical command and control.2856 Gen. Mladi had a “particular eye on
Sarajevo” and the Accused, therefore, only had limited freedom of action on a strategic level but the
Accused “kept total mastery of the means needed to implement locally a certain number of
actions”.2857
811. Ismet Hadži, commander of an ABiH brigade, had the impression that the Accused
exercised more freedom than his predecessor Gen. Gali.2858 Near the end of the war, Ismet Hadži
had the feeling that the Accused could make decisions without approval from the Main Staff of the
VRS.2859 In his view, the SRK under the command of the Accused used a more “systematic
approach”, and the SRK activities were “more subtle”, “more precise” and “more dangerous” than
during the time of Gen. Gali.2860
a. Effective Control over Sniping
812. Gen. Smith testified that day-to-day activities of snipers would normally be controlled at
“around battalion level”.2861 However, he noted that sniping could also be controlled at a higher
level.2862 Brig. Gen. Fraser gave evidence that the deployment of snipers is generally decided at a
“higher level within the army” because snipers are “a highly specialised skill set” and it was
important to apply them to very precise targets.2863
813. Witnesses gave evidence about who commanded and controlled sniping activity by the SRK
in Sarajevo. Maj. Veljovi testified that the Accused would issue general orders as to how to engage
2854 W-46, P387, p. 11 (under seal).
2855 W-46, P387, p. 11 (under seal).
2856 W-46, 15 Mar 2007, T. 3806 – 3808, 16 Mar 2007, T. 3851 – 3852 (closed session).
2857 W-46, 15 Mar 2007, T. 3808 (closed session).
2858 Ismet Hadži, 6 Mar 2007, T. 3236.
2859 Ismet Hadži, 6 Mar 2007, T. 3236.
2860 Ismet Hadži mentioned the targeting of infrastructures, such as local heating facilities and intersections in order to
“achieve maximum effect”, Ismet Hadži, 6 Mar 2007, T. 3236; he referred to the shelling of the Simon Bolivar School
and the TV building and incidents where a sniper killed two or three people with one shot, Ismet Hadži, 6 Mar 2007,
T. 3260. For these incidents, see supra, Section II.E.6(b)(x) Shelling of a Water Distribution Point in Dobrinja on 18
June 1995; Section II.E.6(b)(xi) Shelling of TV Building; Section II.E.4(b)(i)f Sniping of D`enana Sokolovi} and
Nermin Divovi} on 18 November 1994. He also referred to a change in the shelling methods leading to levelling the
target.
2861 Rupert Smith, 7 Mar 2007, T. 3318 – 3320; See also, P514, Expert report Patrick van der Weijden, p. 3.
2862 Rupert Smith, 7 Mar 2007, T. 3320 – 3321.
2863 David Fraser, 7 Feb 2007, T. 1784 – 1785. See also, P514, Expert report Patrick van der Weijden, p. 3; P387, p. 15
(under seal).
272
Case No IT-98-29/1-T 12 December 2007
a target and the lower level commander would then organise the firing position.2864 The
organisation of firing systems at the positions was done by the squad, regiment, battalion or platoon
commanders.2865
814. Several other witnesses testified that the snipers of the SRK did not operate in a random
manner, but that their operation was co-ordinated by the SRK command.2866 Documentary evidence
further shows that the Accused issued several orders relating to snipers, sniper training and sniper
ammunition.2867
815. The Accused was involved in anti-sniping agreements with UNPROFOR. For example, on
14 August, in the first days of his command, he signed the Anti-sniping Agreement.2868 Witnesses
testified that, after the signing of the Anti-sniping Agreement, the number of sniper casualties
immediately and sharply declined, although this did not last more than two or three months.2869
816. The Accused’s control over sniping activity in Sarajevo is also confirmed by one of his
assistant commanders. Col. Lugonja wrote in a memorandum pertaining to the implementation of
an anti-sniping agreement, dated 15 August 1994, that “sniping is to be stopped only by orders and
the inner organisation and accordingly by taking adequate measures.” He further noted, regarding
his proposals for the implementation of the agreement, that “the final decision will be taken by
commander General Miloševi.”2870
2864 Stevan Veljovi, 31 May 2007, T. 5955 – 5956.
2865 Stevan Veljovi, 31 May 2007, T. 5955 – 5956.
2866 David Fraser, 7 Feb 2007, T. 1784 - 1785, “As a battalion commander, I would control the snipers; as a brigade
commander, I would control how we would employ snipers because of the paucity of numbers; but more importantly is
the effect that you're looking for in the application of this skill set.” See also, P514, Expert Report Van der Weijden, p.
3; David Harland, 16 Jan 2007, T. 459; W-46, 15 Mar 2007, T. 3812 – 3813 (closed session), 16 Mar 2007, T. 3853
(closed session); P387, p. 11 (under seal); W-156, P625, pp 17, 18, 24 (under seal).
2867 Vlajko Bo`i, 17 July 2007, T. 8405 – 8406, 8442 – 8443, 8445 – 8447; T-53, 11 June 2007, T. 6459 – 6461, 6464
– 6466; P683, Order by the SRK Commander on detachment and transfer of sniper instructors, dated 19 January 1995.
See also, Ivan Stamenov, 22 Aug 2007, T. 9034 – 9035; Stevan Veljovi, 29 May 2007, T. 5769; P664, Request for
inspection of weapons, dated 6 July 1994; P680, Order to prepare for training in 1995, 5 January 1995; P681, Report to
Sarajevo command on training, dated 13 January 1995; P682, Report to SRK command on implementation of training
in 1994 and recommendation for sniper course, dated 15 January 1995; P684, Order on assigning and dispatching sniper
instructors, 19 January 1995; P685, Report to SRK Command on training of officers for sniping squads, 21 January
1995; P688, Order by the SRK Commander to train SRK units in 1995, 29 January 1995, p. 6; P690, Analysis prepared
by Maj. Stevan Veljovi on training, dated 6 February 1995; P729, Request by the SRK Commander for replenishment
of ammunition, dated 27 July 199; P766, Request for ammunition, 16 June 1995.
2868 See supra, Section II.A.4(c) Anti-sniping Agreement - 14 Auguust 1994.
2869 David Harland, 15 Jan 2007, T. 337, 16 Jan 2007, 459; W-46, 15 Mar 2007, T. 3812 – 3813 (closed session), 16
Mar 2007, T. 3850, 3851 (closed session). See also, W-46, P387, p. 14 (under seal); David Fraser, 7 Feb 2007, T. 1784,
8 Feb 2007, T. 1820 – 1821; P666, Memorandum to SRK command, 15 August 1994, p. 2
2870 P666, Memorandum to SRK command, 15 August 1994, p. 2.
273
Case No IT-98-29/1-T 12 December 2007
b. Effective Control over Shelling
817. Witnesses also gave evidence about who commanded and controlled the shelling by the
SRK. Gen. Smith stated that normal military procedure prescribes that artillery fire is controlled “at
the highest practical point” because it might influence events across the whole area. In his view,
within the SRK, the artillery fire was “probably” controlled at the corps level.2871 QMS Higgs
testified that heavy and medium mortars are controlled at command level in order to prevent “lower
rank local commanders from just firing at something and wasting such a valuable asset.”2872
818. Other witnesses also testified that the Accused controlled the shelling activities of the
SRK.2873 Maj. Eimers, stated that at times requests for temporary cease-fires were sent to the
Lukavica Barracks from checkpoints and within seconds the SRK command stopped “their
guns”.2874 Maj. Veljovi testified that the Main Staff would issue orders relating to cease-fires and
that the orders were then carried out by the subordinate commanders.2875 Defence witnesses
confirmed that there were orders issued not to shoot during cease-fire. Zoran Trapara testified that
there was an express order to his unit not to shoot during a cease-fire with any kind of weapon.2876
Milan Mandi testified that after the Accused became commander, in August 1994, until mid-
October 1994, the soldiers were under orders not to fire infantry or artillery.2877
819. Evidence further shows that the Accused issued orders pertaining to positions of artillery
pieces and to artillery ammunition.2878 During the case, evidence was led that the SRK sometimes
used heavy weapons from WCPs.2879 One witness believed that the orders to use heavy weapons,
which were excluded under the TEZ agreement, were given by the SRK Commander.2880
820. There is also evidence suggesting that the Accused planned to withhold heavy weaponry
that fell under the TEZ. At the time when he was still Deputy SRK Commander, the Accused
submitted a proposal to Gen. Gali to set aside artillery pieces and camouflage them. This involved:
2871 Rupert Smith, 7 Mar 2007, T. 3318 – 3320.
2872 Richard Higgs, 23 Apr 2007, T. 5005 – 5006.
2873 Ghulam Muhammad Mohatarem, 19 Jan 2007, T. 704; W-46, 15 Mar 2007, T. 3816 – 3817, 3830 – 3831 (closed
session), 16 Mar 2007, T. 3853 (closed session); Borislav Kovaevi, 9 July 2007, T. 7906.
2874 Ronald Eimers, P585, p. 8.
2875 Stevan Veljovi, 29 May 2007, T. 5764.
2876 Zoran Trapara, 26 June 2007, T. 7349.
2877 Milan Mandi, 3 July 2007, T. 7560. See also, D214, Order on cease-fire, 25 December 1994.
2878 P667, Order by the SRK Commander to camouflage weapons, dated 21 August 1994. See also T-53, 11 June 2007,
T. 6460 – 6461, 6464 – 6465; Predrag Trapara, 27 June 2007, T. 7414; P687, Request for ammunition, dated 23
January 1995; P697, Order by the SRK Commander on inspection, dated 9 April 1995; P710, Order by the SRK
Commander, 22 May 1995; P729, Request by the SRK Commander for replenishment of ammunition, dated 27 July
1995.
2879 See supra, Section IIA.4(b) Total Exclusion Zone (TEZ) - 9 February 1994.
2880 W-46, 15 Mar 2007, T. 3829 – 3830 (closed session).
274
Case No IT-98-29/1-T 12 December 2007
“a diversionary tactic to set aside the equipment that is out of order and for which we do not have
sufficient quantities of ammunition ... Remaining artillery pieces were previously moved from
firing positions and camouflaged and the artillery pieces from the HK were placed in their
positions. The UN monitors have been informed about the current VP. ... we believe that by
fulfilling the requirements in the above-mentioned manner, we would not reduce b/g combat
readiness of the SRK and at the same time we would not create an image of being uncooperative
with the UN.”2881
821. The Accused was involved in negotiations with UNPROFOR about the withdrawal of heavy
weapons.2882 As discussed in paragraph 52 of this Judgement, the plan to camouflage heavy
weaponry was put into effect when the Accused was commander of the SRK.
c. Effective Control over the Use of Modified Air Bombs
822. Evidence shows that the SRK used modified air bombs, and air bomb launchers and that the
Accused was directly involved in the deployment of these weapons.2883 For example, on 15 July
1995, the Accused requested the Main Staff of the VRS to approve the issuance of 100 FAB-100s
and 100 FAB-250s.2884 The Trial Chamber also received evidence that the Accused ordered the use
of air bomb launchers from as early as August 1994. On 10 August 1994, on one of the first days as
Commander of the SRK, the Accused ordered that air bomb launchers be “ready for firing at
Moševiko Brdo structure and 2 launchers for firing at Gradina, Konjsko Brdo and Velika
Bukva.”2885
823. Maj. Veljovi believed that the Accused would have had to seek approval regarding air
bombs from the Main Staff, “because this ammunition and some refurbishing probably was under
the jurisdiction of the Ministry of Defence.”2886 Further, in June 1994 the VRS Main Staff issued an
order to the SRK. Maj. Gen. Milovanovi stressed that it was the Main Staff of the VRS that was to
decide on the use of air bombs: if the Main Staff of the VRS approved, “possibly a Corps”, and “not
a brigade according to its own plan.”2887 This order was issued before the Accused became
commander of the SRK.2888
2881 P802, Proposal by SRK Commander, 10 February 1994.
2882P8, UNPROFOR memo, 23 November 1994; P625, pp 6, 7 (under seal), W-156, 27 Apr 2007, T. 5332 – 5334
(closed session); P630, Report of meeting between Sector Sarajevo and SRK, 18 September 1995. See also supra,
Section II.A.4(b) Total Exclusion Zone (TEZ) - 9 February 1994.
2883 See supra, Section II.B.2(b)(ii)a Modified Air Bombs. See also, P891, UNMO daily sitrep, 17 June 1995, p. 13;
P892, UNMO daily sitrep, 18 June 1995, pp 1 – 2.
2884 P722, Request by the SRK Commander, 17 July 1995. See also, P767, Request for ammunition, dated 22 June
1995; T-53, 11 June 2007, T. 6456 – 6457; P714, Requisition of 50 air bombs, 4 June 1995; P768, Order issuing SRK
units with air bombs, dated 24 August 1995.
2885 P665, Order by the SRK Commander for further operation, dated 10 August 1994, p. 3. See also, P696, Order by
SRK Commander, dated 4 April 1995, p. 1.
2886 Stevan Veljovi, 31 May 2007, T. 5955.
2887 P739, Order by the VRS to SRK command about requisition of aerial bombs, dated 12 June 1994.
2888 The VRS order was dated 12 June 1994.
275
Case No IT-98-29/1-T 12 December 2007
824. In an order to the Accused, dated 26 April 1995, Gen. Mladi stated that “we are in
possession of information that you are planning to use two air bombs against enemy targets and
settlements in the area of Sarajevo, in the evening or during the night of 26.04.1995” and he
reminded the Accused that it was his duty to inform him about the planned use of air bombs.2889
According to one witness, the document confirms that the SRK commander had freedom of action
regarding the modus operandi “within a larger aggression strategy” and that the SRK commander
was the person who had tactical coordination of the action on the field.2890
825. In a report to the VRS Main Staff dated 15 June 1995, the Accused wrote that air bomb
launchers “are grouped in the brigades in the north western part of the front and are used throughout
the SRK zone of responsibility as required and as decided by the SRK commander.”2891
826. There is further evidence that the air bomb launchers were used to fire several rounds of air
bombs. On 21 April 1995, the Accused ordered the preparation of launchers for air bombs and to
ensure that “four to six aerial bombs can be launched simultaneously against the designated target,
the condition being that they must hit the target, which means that provisions have to be made for
more bombs so that, in the event of a miss, the next projectile lands on the target.”2892
(ii) Evidence Relating to the Defence of ‘Alibi’
827. The Defence argued that for the period of 6 August to 10 September 1995, the Accused is
entitled to the defence of alibi since he was absent from the area where the crimes with which he is
charged in the Indictment were committed and since ^edo Sladoje took up all the command
responsibilities in the SRK over that period.2893 The Defence submitted that the Accused was de
facto unable to carry out his command duties at the time and, therefore, cannot be held responsible
for what took place in his absence, or, in particular, for not conducting an investigation into the
Markale Market II incident.2894
828. In its Closing Brief, the Prosecution dismisses “the claim by the Defence” that the Accused
was not responsible for the Markale Market II incident. It also submitted that there is no evidence
that the Accused disciplined or prosecuted anyone for the Markale Market II incident.2895
2889 P394, Order from Gen. Ratko Mladi to the SRK Commander, dated 26 April 1995.
2890 W-46, 15 Mar 2007, T. 3816 – 3817, 3837 – 3838 (closed session).
2891 P663, Report from SRK command, 15 June 1995.
2892 P701, Order by the SRK Commander on preparations for action “Talas-I”, dated 21 April 1995, p. 2.
2893 Defence Pre-Trial Brief, 27 February 2006, para. 10.
2894 Defence closing arguments, 10 October 2007, T. 9565.
2895 Prosecution closing arguments, 9 October 2007, T. 9434, 9436.
276
Case No IT-98-29/1-T 12 December 2007
829. Evidence was presented indicating that at the beginning of August 1995, the Accused left
Sarajevo for Belgrade, where he received treatment for an injury to his right eye that he had
sustained on 17 May 1995.2896 The Accused was wounded when a tank round, which was fired from
Mount Žu~, about two or three kilometres away, hit an observation post, situated above Zlati{te and
the Lukavica-Trbevica-Pale road, where he was.2897 He received medical attention immediately at
the medical station next to the observation post.2898
830. From mid-June 1995, and until he left for Belgrade, the Accused was in the field during the
offensives against the Ni{i}i Plateau and Trnovo.2899 Authorisation for the Accused to travel to
Belgrade was given by the Main Staff of the SRK.2900 Dragan Simi} drove the Accused to Belgrade
via Lukavica, Han Pijesak and Zvornik.2901 When they reached Belgrade, Dragan Simi} took the
Accused to the Slavija Hotel.2902 Dragan Simi} then left Belgrade for his village, where he remained
until early September.2903 According to his medical file, the Accused was admitted to the VMA Eye
Clinic in Belgrade on 8 or 9 August 1995 and discharged on 21 August 1995.2904 Two reports from
the Belgrade Military Medical Academy dated 4 September 1995 and 25 September 1995, indicate
that the Accused had regular check-ups every two to three weeks and ongoing treatment.2905 In
early September 1995, Dragan Simi} picked up the Accused from the barracks in Han Pijesak and
drove him back to the forward command post via the Lukavica Barracks.2906
831. Witnesses testified that the Accused was absent from combat positions around Sarajevo for
approximately one month while he was receiving treatment for his eye injury.2907 During the time
he was in Belgrade, Col. Sladoje, the SRK Chief of Staff, assumed the command responsibilities of
the SRK.2908
2896 D340, Medical file for Dragomir Milo{evi}, dated 28 August 1996, pp 1, 2; Luka Dragi~evi}, 26 Mar 2007, T.
3999; Dragan Simi}, 5 June 2007, T. 6192, 6196, 6224 – 6225; T. 41, 18 July 2007, T. 8521, 8534, 8535 – 8536;
Stevan Velijovi}, 30 May 2007, T. 5842, 5847 – 5848.
2897 Dragan Simi}, 5 June 2007, T. 6190, 6192, 6196; Stevan Velijovi}, 30 May 2007, T. 5841, 5852; D209, Sketch
made by Dragan Simi}, dated 5 June 2007; D210, Photograph marked by Dragan Simi}; P741, Map marked by Stevan
Velijovi}, 30 May 2007.
2898 Dragan Simi}, 5 June 2007, T. 6196.
2899 Dragan Simi}, 5 June 2007, T. 6205 – 6206.
2900 Dragan Simi}, 5 June 2007, T. 6225.
2901 Dragan Simi}, 5 June 2007, T. 6206, 6225.
2902 Dragan Simi}, 5 June 2007, T. 6225.
2903 Dragan Simi}, 5 June 2007, T. 6206, 6225.
2904 D340, Medical file for Dragomir Milo{evi}, 28 August 1996, p. 3. See also, P344, UN Documents relating to
meetings with Mladi, dated 14 August 1995, p. 6.
2905 D340, Medical file for Dragomir Milo{evi}, p. 5. See also, pp 6 -7.
2906 Dragan Simi}, 5 June 2007, T. 6206, 6226.
2907 Dragan Simi}, 5 June 2007, T. 6206; Stevan Veljovi}, 31 May 2007, T. 5943; T.41, 18 July 2007 T. 8534 – 8536.
2908 Luka Dragi~evi}, 26 Mar 2007, T. 4050; Stevan Veljovi}, 30 May 2007, T. 5843; See, e.g., P732, Order by the SRK
command, 27 August 1995; P733, Order signed by ^edo Sladoje, “in lieu of the Commander,” 28 August 1995; P734,
SRK order, “Commander represented by”, 7 September 1995.
277
Case No IT-98-29/1-T 12 December 2007
832. According to Col. Dragi~evi}, the Accused returned to Sarajevo on 10 September 1995, and
resumed command of the SRK.2909 Similarly, Dragan Simi} testified that when he returned the
Accused to the forward command post, the Lukavica Barracks had been damaged during the NATO
air strikes and evacuated.2910 Col. Dragi~evi} assumed that the Accused was informed of the events
leading to the NATO airstrikes because, “it is a matter of course as far as the military is concerned
that the commander has to be aware of what was going on in the previous period.”2911 Maj. Veljovi}
testified that “it was his duty to fully brief him.”2912 The Trial Chamber rejects the defence of alibi
and sets out the reasons in paragraphs 972 to 977 of this Judgement.
(iii) Orders of the Accused
833. The Trial Chamber received evidence pertaining to the Accused personally ordered the
shelling of Hrasnica on 7 April 1995 with a modified air bomb.2913
834. On 19 April 1995, the Accused in response to information indicating that “the enemy is
preparing for actions”, ordered all units to have “launching pads and aerial bombs ready for firing
on the town.”2914
835. On 16 May 1995, the Accused ordered the Ilidža Brigade to “immediately prepare an aerial
bomb launcher with at least five aerial bombs” to be ready to fire at his command, with the
launchers being “roughly aimed at the airport”.2915 The Accused further ordered the SRK 3rd
Sarajevo Brigade to “immediately transfer their aerial bomb launcher to the Trebevi sector (near
what used to be Jugobanka) with five aerial bombs” and to “inform the SRK Command of their
readiness for movement and arrival at destination.”2916
836. With regard to the shelling of the TV Building on 28 June 1995, the Trial Chamber notes
that the Accused highlighted this incident in a report on the situation at the front. He wrote:
“The Serbian soldiers are displaying unprecedented heroism, not letting the enemy get closer to
their homes and families. The VRS Main Staff commander, Gen. Ratko Mladi, commended the
heroism of units in the north-western part of the front, and numerous congratulations also arrived
from unit commands and civilian government institutions. Our artillery forces are responding with
2909 Luka Dragi~evi}, 26 Mar 2007, T. 3999, 4049.
2910 Dragan Simi}, 5 June 2007, T. 6206.
2911 Luka Dragi~evi}, 26 Mar 2007, T. 4050.
2912 Stevan Veljovi}, 30 May 2007, T. 5843 – 5844.
2913 See supra, Section II.E.6(b)(iii) Shelling of a Residential Area in Hrasnica on 7 April 1995; P225, SRK combat
report, 7 April 1995, p. 2. See also, Stevan Veljovi}, 31 May 2007, T. 5913 – 5915.
2914 D141, Order by the SRK Commander on full combat readiness, dated 19 April 1995, p. 1.
2915 P395, Order by the SRK Commander to prepare air bomb launcher, dated 16 May 1995.
2916 Ibid.
278
Case No IT-98-29/1-T 12 December 2007
precision to the Muslim artillery attacks. In one such response on 28 June they hit the BH Radio
and Television Centre, the centre of media lies against the just struggle of the Serbian people.”2917
(iv) Orders by the Accused to Prevent the Shooting of Civilians
837. Several Defence witnesses testified that the Accused issued orders not to shoot at civilians,
and to abide by the Geneva Conventions. According to T-48, the soldiers were “under constant
orders not to open fire unnecessarily, not to target civilians.”2918 Dragan Simi, the Accused’s
driver, testified that the Accused constantly reiterated that the soldiers should only return fire if
attacked directly in their trenches, and to fire only at the military targets which fired at them. He
further testified that the Accused insisted that “they must under no circumstances fire at
civilians.”2919 Lastly, Dragan Simi testified that the Accused constantly told the soldiers to take
care and not to fire without any need.2920 Sini{a Krsman also testified that the Accused told the
soldiers to be careful, not to shoot when unnecessary, to spare the ammunition and to guard their
lives and the territory in which they lived.2921
838. According to Milorad Ko{orac, the Accused requested, during a visit of his unit, that the
notice board in the command centre, where medical certificates, travel orders, and also a copy of an
excerpt from the Geneva Conventions on the rules of waging the war were posted, be put in a more
visible place. After the Accused had left, the soldiers, according to Milorad Ko{orac, made the
following comments: “Is this guy normal or what? These other guys are violating the cease-fire.
One of our guys was just shot, and this commander is asking the battalion to comply with all
this.”2922 During cross-examination, he was asked whether he could give the names of other persons
present at the scene who could confirm this and he gave the name of Ranko Blagov~anin but said he
was not able to locate this person at the time of the hearing.2923
839. According to Maj. Veljovi, wherever he went, the Accused told the soldiers and officers
that “fire should only be opened at enemy soldiers and no one else”.2924 He testified that the
Accused also specifically demanded that the soldiers did not target populated areas.2925
2917 P42, P152 Report by the SRK Commander, 30 June 1995.
2918 T-48, 22 June 2007, T. 7177. See also, ibid., T. 7180 – 7181; Stevan Veljovi, 30 May 2007, T. 5854; Luka Jovi,
18 June 2007, T. 6728; Vlajko Bo`i, 17 July 2007, T. 8477 – 8479. Witnesses testified that the Accused issued strict
directives, in accordance with the Geneva Conventions, and warned his troops for disciplinary measures; he did not
entrust individual officers to carry the message to the troops so he went from one position to the next to ensure that his
orders were passed on, Radomir Visnji, 25 June 2007, T. 7259 – 7260. See also, ibid., 26 June 2007, T. 7294.
2919 Dragan Simi, 5 June 2007, T. 6176.
2920 Ibid., T. 6174, 6214 – 6215. See also, Milorad Ko{orac, 26 July 2007, T. 8874 – 8876.
2921 Sini{a Krsman, 6 June 2007, T. 6266 – 6267.
2922 Milorad Ko{orac, 26 July 2007, T. 8871 – 8872.
2923 Ibid., T. 8897.
2924 Stevan Veljovi, 29 May 2007, T. 5748, 5770 – 5771, 30 May 2007, T. 5827, 5839 – 5840, 31 May 2007, T. 5926
– 5927.
2925 Ibid., 31 May 2007, T. 5925.
279
Case No IT-98-29/1-T 12 December 2007
Furthermore, he testified that, at every position he visited, the Accused constantly reminded his
troops to strictly observe the Geneva Conventions and even warned them of their accountability.2926
840. There is one written order in evidence in which the Accused prohibited sniping. Close to the
end of the war, on 1 October 1995, the Accused issued an order to all units of the SRK “pursuant to
the order of the VRS Main Staff ..., the demonstrated need to stop any firing on the town of
Sarajevo, and in order to continue preventing sniper fire on the town”, in which he prohibited, until
further notice, “any sniper fire on the town of Sarajevo and all commanders and commanders of
units shall inform every single soldier of this order.”2927 The order further read: “In the event that
the Muslims fire from the town of Sarajevo on our units, immediately inform the Corps Command,
who shall form a commission through the UNPROFOR Command of Sector Sarajevo to go to the
firing position to establish the weapon used and the consequences of the fire.”2928
(v) Involvement in Attacks on UNPROFOR
841. Witnesses gave evidence about the Accused’s involvement in attacks on members of
UNPROFOR.2929 One witness stated that the incidents directed at UNPROFOR soldiers were
planned and carried out by “Bosnian Serbs at the highest level”.2930 He did not believe that “a local
leader” would have made such a decision.2931 Col. Dragievi was asked for some clarifications by
the Trial Chamber and testified that orders relating to UNPROFOR were issued by the Main Staff
of the VRS and were handed down by the Accused and his subordinates.2932 However, he stressed
during cross-examination, that neither the Accused nor anyone else from the VRS ever issued any
order to act against UNPROFOR soldiers.2933
842. Documentary evidence shows that the Accused, at times, prohibited attacks on
UNPROFOR,2934 but other documentary evidence suggests that attacks on UNPROFOR were also
carried out following orders of the Accused.2935 For instance, an order to all Brigade commands,
2926 Ibid., 29 May 2007, T. 5770 – 5771, 31 May 2007, T. 5926 – 5927.
2927 P737, Order by the SRK Commander on sniper fire, dated 1 October 1995.
2928 Ibid.
2929 See, for evidence pertaining to attacks on UNPROFOR, e.g., paras 236, 432.
2930 W-46, P387, p. 10 (under seal).
2931 Ibid.
2932 Luka Dragievi, 26 Mar 2007, T. 4057.
2933 Ibid., T. 4034 – 4035.
2934 P661, Order by the SRK deputy commander, 16 July 1993; P662, Order by the SRK deputy commander, 17 January
1994; P677, Order by the SRK Commander, dated 24 November 1994; D140, Order by Luka Dragievi, banning fire
at the UN forces and equipment, acting for the SRK Commander, dated 25 July 1995 (“Order by Luka Dragi~evi},
acting for the SRK Commander, 25 July 1995”).
2935 P751, Order by SRK Commander, dated 26 November 1994; P396, Order by the SRK Commander, dated 27 May
1995; D140, Order by Luka Dragievi, acting for the SRK Commander, 25 July 1995. See also, P341, Order of SRK
Commander, dated 27 May 1995; Rupert Smith, 7 Mar 2007, T. 3325 – 3526; W-46, 16 Mar 2007, T. 3843 – 3844
(closed session), P387, p. 16 (under seal); Luka Dragievi, 26 Mar 2007, T. 4022, 4055 – 4056.
280
Case No IT-98-29/1-T 12 December 2007
signed by the Accused on 17 January 1994, asks SRK troops to “prevent any incidents with the
forces of UNPROFOR and other international organisations”,2936 while an order to the Commander
of the Ilija{ Brigade, signed by the Accused on 26 November 1994, reads “You are to fire at the
centre of deployed UNPROFOR forces.”2937
(vi) Intent and Awareness of Crimes
843. Evidence shows that the Accused was well-informed about the situation of the troops under
his command.2938 Lower level units regularly sent reports to the higher commands, as he himself
had ordered.2939 The reports also included information about civilian casualties.2940
844. Maj. Veljovi} agreed with an assessment of Col. Lugonja that the SRK had good
information about ABiH positions, command posts, and movement.2941
a. Awareness of Crimes
845. In its Closing Brief, the Prosecution submits that there is uncontradicted testimony which
shows that the Accused knew of his troops behaviour.2942 Evidence shows that the Accused knew
about allegations that SRK forces had targeted civilians. As described above, the Accused regularly
visited SRK units at the confrontations lines in order to get an impression of the situation in the
field.2943 These visits included SRK-held areas from which civilians were targeted.2944 Dragan
Simi testified that, in the period from end December 1994 to May 1995, the Accused mostly went
to Grbavica and Nearii.2945 As evidence presented in this case shows, there were a lot of sniping
incidents in Grbavica and Nearii.2946 It is reasonable to infer that the Accused, who was the
commander of the SRK and who regularly visited SRK units in these areas, was aware of the crimes
that were committed.
846. Evidence shows that the Accused received numerous protest letters from UNPROFOR about
crimes committed by SRK troops. UNPROFOR Gen. Gobilliard, Col. Meille and Maj. Gen. Nicolai
2936 P662, Order by the SRK deputy commander, 17 January 1994.
2937 P751, Order by SRK Commander, 26 November 1994.
2938 Anelko Dragaš, 22 June 2007, T. 7123.
2939 Zoran Trapara, 26 June 2007, T. 7332 – 7333.
2940 Stevan Veljovi, 30 May 2007, T. 5856.
2941 Ibid., T. 5837 – 5838, 5850 – 5851.
2942 Prosecution Closing Brief, pp 140 – 144.
2943 See supra, paras. 804 – 806.
2944 See supra, Sections II.E.3.(a)(ii), II.E.4.b(i) and II.E.4(b)(iii)(a).
2945 Dragan Simi, 5 June 2007, T. 6175 – 6176. See also, T-48, 22 June 2007, T. 7157.
2946 See supra, Sections II.E.3.(a)(ii), II.E.4.b(i) and II.E.4(b)(iii)(a).
281
Case No IT-98-29/1-T 12 December 2007
sent many protest letters to the Accused.2947 Lt. Col. Fortin testified that protest letters to the
Bosnian Serb side were addressed to the SRK Commander.2948 According to Brig. Mohatarem,
UNMOs also lodged protests.2949 However, they would normally not file protests with the SRK, but
“with Pale.”2950
847. UNPROFOR Sector Sarajevo would often protest against Bosnian Serbs shooting at the
Igman road.2951 In case of a shooting incident on ‘Sniper Alley’, protests were issued by the
UNPROFOR battalion and by Gen. Gobilliard; verbal protests were conveyed by the liaison
officers, whereas written protests were sent to the Accused.2952 One witness testified that the
UNPROFOR Sector Commander never received any answer to his protest letters.2953 However,
according to the witness, it was “certain that the information was always received” by the
Accused.2954 However, Maj. Gen. Nicolai testified that he normally received responses to protest
letters from the SRK, either in written form or by telephone. Usually, the response consisted of a
denial of involvement in the actions in relation to which the protest letter had been sent.2955 At other
times, it was said that the actions were a response to provocation “by the other side”, either by fire
or by preparing an offensive.2956 In general, David Harland and Maj. Eimers said, the protest letters
did not lead to any change in the behaviour of the Bosnian Serbs.2957
848. One witness stated that the Accused was almost always willing to meet with Gen.
Gobilliard.2958 However, the Bosnian Serb commanders were rather dismissive about sniping or
other violations. According to Brig. Mohatarem, they would not accept that they had been shooting
at civilians. He added: “They didn't care about it, actually.”2959
849. A protest letter dated 2 December 1994 was sent to the Accused regarding the shooting of
AT3 missiles from a place near the Jewish Cemetery on the Presidency Building, on a cinema and
on the Ministry of Interior in Sarajevo. After the plane in which Yasushi Akashi arrived in Sarajevo
2947 Louis Fortin, P27, p. 7; P28, Protest letter, dated 2 June 1995; P29, Protest letter, dated 3 June 1995; P31, Protest
letter, dated 3 June 1995; P32, Protest letter, 3 June 1995. See also, Cornelis Hendrik Nicolai, 24 Jan 2007, T. 937, 947
– 949.
2948 Louis Fortin, 16 Jan 2007, T. 479, P27, p. 7.
2949 Ghulam Muhammad Mohatarem, 19 Jan 2007, T. 708 – 709.
2950 Ibid.
2951 W-46, P387, p. 11 (under seal).
2952 Ibid., p. 13 (under seal).
2953 W-46, 16 Mar 2007, T. 3850 (closed session). See also, Louis Fortin, 16 Jan 2007, T. 484; W-156, 27 Apr 2007, T.
5347 (closed session).
2954 W-46, P387, p. 13 (under seal).
2955 Cornelis Hendrik Nicolai, 24 Jan 2007, T. 950.
2956 David Harland, 15 Jan 2007, T. 347 – 349; Cornelis Hendrik Nicolai, 24 Jan 2007, T. 950.
2957 David Harland, 15 Jan 2007, T. 347 – 349; Ronald Eimers, P585, pp 6, 10.
2958 W-46, P387, p. 13 (under seal).
2959 Ghulam Muhammad Mohatarem, 19 Jan 2007, T. 709 – 710; P392, Protest letter, 2 December 1994; W-46, P387, p.
25 (under seal).
282
Case No IT-98-29/1-T 12 December 2007
in February 1995 was hit, a protest was conveyed to the Accused, to the SRK headquarters and to
the VRS headquarters in Pale.2960
850. Around the twentieth of May 1995, when the SRK started using weapons from the WCPs,
several protest letters were written.2961 Brig. Mohatarem testified that in May 1995 alone, eight or
nine protest letters were sent.2962 Lt. Col. Fortin issued an ultimatum that if the Bosnian Serbs did
not return the weapons to the WCPs, then “we would bomb. They did not and we bombed.”2963
851. On 8 June 1995, Gen. Gobilliard protested against the launching of “violent attacks with
artillery and tanks all along the southern side of the confrontation line, particularly in the area of
Debelo Brdo, Staro Brdo, Zlatište road, Jewish Cemetery and Bosut Barracks. One tank even fired
from inside Grbavica and incendiary rounds were also observed.”2964 He requested the Accused,
“once more, ... to issue orders to prevent the situation from deteriorating to the point where a
diplomatic solution is no longer possible” and he reminded the Accused that he was “responsible
for the acts of the troops who implement your orders.”2965
852. There are also protest letters in evidence which relate to the scheduled incidents in this case.
In a letter dated 30 June 1995, Col. Meille lodged a protest with the Accused regarding several
shelling attacks on civilian targets in the city of Sarajevo on 28 and 29 June 1995, in particular, the
shelling of the TV Building on 28 June 1995, the shelling of a residential area in Alipašino Polje,
the firing at residential buildings in the city centre and the shelling of the PTT Building on 29 June
1995.2966 A copy of that letter was sent by Maj. Gen. Nicolai to Gen. Deli and to Gen. Mladi on 1
July 1995.2967
b. Intent of the Accused
853. Brig. Gen. Fraser testified that it appeared to him that there was “a commander’s intent in
play around the city of Sarajevo with respect to sniping incidents”.2968 He testified that there was
sniping in different areas of Sarajevo, along ‘Sniper Alley’, around the airport, and around the area
2960 Ghulam Muhammad Mohatarem, 19 Jan 2007, T. 728.
2961 Louis Fortin, P27, p. 7.
2962 Ghulam Muhammad Mohatarem, 19 Jan 2007, T. 722 – 723. See, e.g., W-46, P387, p. 29 (under seal).
2963 Louis Fortin, P27, p. 7. See also, para. 62.
2964 P33, Protest letter, dated 8 June 1995.
2965 Ibid.
2966 P18, Protest letter, dated 30 June 1995.
2967 P87, Protest letter, dated 1 July 1995; P103, Protest letter, 1 July 1995. See also, Ghulam Muhammad Mohatarem,
19 Jan 2007, T. 722 – 723; Louis Fortin, P27, p. 15.
2968 David Fraser, 7 Feb 2007, T. 1772 – 1773.
283
Case No IT-98-29/1-T 12 December 2007
of [picasta Stijena, these areas were all under the control of different SRK brigades, and sniping on
these areas indicated a “higher commander’s intent.”2969
854. On 6 April 1995, the Accused issued an order to the Ilid`a Brigade to “immediately prepare
a launcher with an aerial bomb and transport the bomb for launching.” Further, the order stated that
“the most profitable target must be selected in Hrasnica or Sokolovi} Kolonija where the
greatest casualties and material damage would be inflicted.”2970
855. There is also evidence that on 5 November 1994, the Accused attended a meeting in
Vogoša at which allegedly the decision was taken to shell civilian targets. In an order dated 7
November 1994, Gen. Mladi} stated:
“I have an information that on 5 November 1994 a meeting took place between local Serb leaders
of Serbian Sarajevo in Vogoša, at which the Sarajevo-Romanija Corps Commander was also
present, and at which a decision was made to block the UNPROFOR, to confiscate heavy technical
equipment under the UNPROFOR’s control, and to shell civilian targets in Sarajevo with heavy
weaponry.”2971
856. Milorad Kati confirmed that the leadership of “Serb Sarajevo” met from time to time in
Vogoša.2972 With regard to Gen. Mladi’s order of 7 November 1994, Milorad Kati testified that
Gen. Mladi was probably misinformed about the meeting on 5 November 1994.2973 In that order,
Gen. Mladi} further stated that he “forbids all use of weapons of bigger calibre on civilian targets
in Sarajevo without my approval.”2974 Milorad Kati agreed that this sentence could be interpreted
to mean that fire from all other smaller calibre weapons was allowed, as was put to him by the
Prosecution, but testified that he did not believe that this was a fair reading.2975
857. On 12 or 16 August 1994, during his first days as SRK commander, the Accused issued an
order to bring the SRK units to full combat readiness. He ordered the 4th Mixed Artillery Regiment
to “draw up a fire plan in the region of Bašaršija and Vrbanja. Fire is to be open in compliance
with the order of the SRK commander.”2976 Maj. Veljovi explained that the SRK could not respond
to ABiH mortar attacks, which originated from olina Kapa, and other features because this might
have destroyed the cultural and historical area of Bašaršija and brought about the “condemnation
by the international community and the United Nations”.2977 Moreover, he testified that the order
2969 David Fraser, 7 Feb 2007, T. 1772 – 1773.
2970 P226, Order by SRK Commander, 6 April 1995.
2971 P496, Order by Gen. Mladi} on combat activities, dated 7 November 1994 (“Order by Gen. Mladi}, 7 November
1994”).
2972 Milorad Kati}, 1 June 2007, T. 6061. See also, P675, Order by SRK Commander, dated 16 November 1994.
2973 Milorad Kati, 1 June 2007, T. 6004 – 6005; P496, Order by Gen. Mladi}, 7 November 1994.
2974 P496, Order by Gen. Mladi}, 7 November 1994.
2975 Milorad Kati, 4 June 2007, T. 6066 – 6067; P496, Order by Gen. Mladi}, 7 November 1994.
2976 D186, Order by the SRK Commander about full combat readiness, 12, 16 August 1994, p. 2.
2977 Stevan Veljovi, 29 May 2007, T. 5752.
284
Case No IT-98-29/1-T 12 December 2007
was that the buildings, roads, the civilian population and movements of people “shall not be
targeted at any cost, except on specific orders”.2978 The Accused strictly required, according to Maj.
Veljovi, that it be made clear to subordinate units that targets in Bašaršija could be engaged only
and solely on his orders.2979 According to Maj. Veljovi, the Accused never issued such an
order.2980
(c) Investigations and Disciplinary Measures
858. The Prosecution submits that the Accused “had the SRK’s properly functioning military
investigation and justice system available to him, and could have used that system to prevent and/or
punish the criminal acts of his troops.”2981
859. Evidence was led relating to whether the Accused initiated investigations or criminal or
disciplinary proceedings against SRK soldiers who had committed crimes.
860. The VRS regulations, setting out the application of international humanitarian law since
June 1992, were based on JNA regulations and provided, in relevant parts:
“Commanders and commanding officers and each member of the army or other armed formation
taking part in combat activities shall be responsible for the application of the rules of international
laws of war.
The competent superior officer shall initiate proceedings for sanctions as provided by the law
against individuals who violate the international laws of war.”2982
861. On 19 June 1995, the Accused informed all SRK officers and unit members that the law on
military courts and the law on the military prosecutor’s office during a state of war applied.2983
Col. Dragievi confirmed that these regulations were in place during the Indictment period.2984 He
explained that if a commander in the SRK became aware of a violation of the international laws of
war, he had a duty to report that up the chain of command. If a violation was reported to the corps
commander, the commander was obliged to initiate proceedings and send an appropriate document
to the military prosecutor.2985 Information on such violations was also included in regular
reports.2986 There were two or three military prosecutors within the VRS.2987
2978 Stevan Veljovi, 29 May 2007, T. 5752.
2979 Ibid., T. 5753 – 5754.
2980 Ibid., T. 5752 – 5754.
2981 Prosecution Closing Brief, p. 148.
2982 P475, Order on the application of the rules of international law of war in the VRS, dated 13 June 1992. See also,
Luka Dragievi, 26 Mar 2007, T. 3972 – 3973; P474, SFRY Army Regulations, dated 1988, pp 14 - 15.
2983 P718, Order by SRK Commander, dated 19 June 1995.
2984 Luka Dragievi, 26 Mar 2007, T. 3973.
2985 Ibid., T. 3973 – 3976, 3996 – 3997, 27 Mar 2007, T. 4064. See also, Simo Tu{evljak, 11 July 2007, T. 8097.
2986 Luka Dragievi, 26 Mar 2007, T. 3973 – 3974.
2987 Simo Tu{evljak, 11 July 2007, T. 8097 – 8098.
285
Case No IT-98-29/1-T 12 December 2007
862. Evidence shows that the office of the military prosecutor received reports from the SRK and
its subordinate units.2988 Col. Dragievi, the SRK Assistant Commander for Morale, Religious and
Legal Affairs, testified that he never learned or heard of any instances where the Accused reported a
violation of international humanitarian law to the military prosecutor. He testified that he would
have been informed about such a report.2989
863. The legal department of the SRK, in turn, received monthly reports from the military
prosecutor’s office for Sarajevo of criminal proceedings against members of the SRK and the
outcome of any such proceeding.2990 During regular briefing sessions, the legal department
informed members of the SRK corps command of the content of the reports.2991 However, the
reports did not contain any information about criminal proceedings against SRK members on war
crime charges.
864. The civilian Crime Prevention Department of Sarajevo would hand over a case file to the
military prosecutor’s office, if it was established that the alleged perpetrator of a particular crime
was a member of the VRS.2992 Simo Tuševljak could not say how many times this happened or
whether this happened often.2993 He testified that the communication between this department and
the military prosecutor was very rare.2994 However, he did not recall one single instance between
1993 and 1995 in which he undertook an investigation of war crimes against a member of the SRK
that he had to refer to the military prosecutor.2995
865. The military police of the SRK also conducted investigations.2996 The intelligence and
security organ as well as the corps commander would be informed about the outcome of these
2988 P480, Report by Col. Dragievi, 22 March 1995; P481, Report by Col. Dragievi to SRK command on crimes in
March 1995, dated 19 April 1995 (“Report by Col. Dragi~evi}, 19 April 1995”); P482, Information on Crime Levels in
March 1995, dated 19 April 1995; P478, Report by Col. Dragievi to SRK command on crimes in May 1995, dated 8
June 1995 (“Report by Col. Dragi~evi}, 8 June 1995”); P485, Information on Crime Statistics for June 1995, dated 26
July 1995.
2989 Luka Dragievi, 26 Mar 2007, T. 3983 – 3984, 4036 – 4037.
2990 Luka Dragievi, 26 Mar 2007, T. 3974 – 3975; P479, Report of the military prosecutor on crime trends in
December 1994, dated 17 January 1995; P483, Report of the military prosecutor on crime trends in April 1995, dated 1
May 1995; P476, Report of the military prosecutor about crimes committed in May 1995, dated 2 June 1995; P477,
Report of the military prosecutor on crime trends in May 1995, dated 6 June 1995; P484, Report of the military
prosecutor on crime trends in June 1995, dated 11 July 1995; P486, Report of the military prosecutor on crime trends in
July 1995, dated 2 August 1995; P487, Report of the military prosecutor on crime trends in August 1995, dated 5
September 1995; P488, Report of the military prosecutor on crime trends in October 1995, dated 13 November 1995.
2991 Luka Dragievi, 26 Mar 2007, T. 3976; P480, Report by Col. Dragievi to SRK command on crimes in February
1995, dated 22 March 1995 (“Report by Col. Dragi~evi}, 22 March 1995”). See also, P481, Report by Col. Dragievi,
19 April 1995; P482, Information on crime levels in March 1995, 19 April 1995; P478, Report by Col. Dragievi, 8
June 1995; P485, Information on crime statistics for June 1995, 26 July 1995.
2992 Simo Tuševljak, 11 July 2007, T. 8096 – 8099.
2993 Ibid., T. 8098 – 8100.
2994 Ibid., T. 8097 – 8098.
2995 Ibid., 12 July 2007, T. 8113.
2996 D185, SRK combat report, 13 September 1992; P670, Report on the work of the 4th Military Police Battalion, dated
4 September 1994.
286
Case No IT-98-29/1-T 12 December 2007
investigations.2997 However, there is no evidence that the military police investigated war crimes
committed by the SRK forces. Witnesses testified that they were not aware of any investigations or
proceedings relating to war crimes committed by SRK members. Predrag Trapara testified that he
had no information from any source on any military prosecutions, administrative discipline,
inquiries, or investigations into allegations that troops of SRK had committed war crimes and
atrocities in the Indictment period.2998
866. Evidence shows that disciplinary proceedings against SRK soldiers were conducted and
disciplinary measures taken. However, these proceedings and measures did not concern violations
of international humanitarian law.2999 On 18 March 1995, the Accused pronounced a disciplinary
prison sentence against a SRK soldier for desertion.3000 On 22 April 1995, the Accused ordered the
commander of the Praanski Battalion to pronounce disciplinary measures or sentences for
members of his battalion who violated military discipline and to report to him if members
committed major disciplinary offences.3001 Furthermore, Col. Dragievi testified that the Accused
was successful in implementing a prohibition on the use of alcohol in the field and in controlling the
use of alcohol.3002 According to Col. Dragievi, short prison sentences for people found to be
intoxicated were pronounced, either by the Accused directly or by an appropriate order to the
superior officer of the intoxicated soldier.3003
867. On 25 May 1995, the Accused responded to an order by the Main Staff of the VRS to bring
“charges of criminal and disciplinary responsibility … against SRK soldiers, officers and
commands because of the loss of territory and MTS and deaths, wounding and disappearance of
combatants in the area of the Niši plateau and Trnovo axis during 1994.”3004 The Accused
requested more time for investigation and suggested that a commission be formed.3005 Whether a
commission was eventually established, was not clarified during trial.
2997 Stevan Veljovi, 30 May 2007, T. 5825; P715, Clarification on disciplinary responsibility, dated 4 June 1995.
2998 Predrag Trapara, 27 June 2007, T. 7404; Vlajko Bo`i}, 17 July 2007, T. 8449.
2999 P668, Report on investigation of Capt. 1st class Milidrag, dated 26 August 1994; P695, Order on disciplinary
measures, dated 2 April 1995.
3000 P693, Pronouncement of disciplinary sentence, dated 18 March 1995; P699, Decision on reduction of disciplinary
sentence, dated 16 April 1995.
3001 P490, Order by SRK Commander, dated 22 April 1995. The Trial Chamber notes that Praanski Battalion was
within the Sarajevo-Romanija Corps, Luka Dragievi, 26 Mar 2007, T. 3987.
3002 Luka Dragievi, 26 Mar 2007, T. 3990.
3003 Ibid.
3004 P711, Request by SRK Commander to Main Staff, dated 25 May 1995, p. 1.
3005 Ibid.
287
Case No IT-98-29/1-T 12 December 2007
III. FINDINGS ON THE COUNTS AND CRIMINAL LIABILITY OF THE
ACCUSED
868. As a general rule, in its findings the Trial Chamber will not repeat the evidence that has
already been set out in extenso. The Trial Chamber will, instead, refer to the relevant areas of the
Judgement that provide the foundation for its decisions.
A. Count 1: Terror
869. Under this count, the Prosecution charged the Accused with criminal responsibility under
Articles 7(1) and 7(3) for the crime of terror as a violation of the laws or customs of war. It must
first be established whether violations of the laws or customs of war were committed. This gives
rise to a discussion of the requirements under Article 3 of the Statute as well as a discussion of the
legal elements of the crime of terror.
1. General Requirements of Article 3 of the Statute
870. Article 3 of the Statute is a residual clause which covers all serious violations of
humanitarian law not covered by Articles 2, 4 or 5 of the Statute.3006 There are two preliminary
jurisdictional requirements for the application of Article 3 of the Statute: there must be an armed
conflict, whether international or internal, at the time material to the Indictment, and the alleged
crime must be closely related to this armed conflict (“nexus requirement”).3007 Furthermore, four
additional conditions, known as the Tadi} conditions, must be fulfilled for a crime to fall within the
jurisdiction of the Tribunal.3008 The Trial Chamber finds that the Tadi} conditions are met in respect
of the relevant crimes.
3006 Prosecution v. Tadi}, Case No. IT-94-1-AR72, Appeals Chamber Decision on Jurisdiction, 2 October 1995 (“Tadi}
Jurisdiction Decision”), para. 91. Gali}, Appeal Judgement, para. 118; Kunarac et al. Appeal Judgement, para. 68;
^elebi}i Appeal Judgement, para.125; Prosecution v. Milan Marti}, Trial Judgement, para. 40 (“Marti} Trial
Judgement”).
3007 Tadi} Jurisdiction Decision, paras 67 – 70, 137; Staki} Appeal Judgement, para. 342; Kunarac Appeal Judgement,
para 55; Gali} Appeal Judgement, para. 120; ^elebi}i Appeal Judgement, paras 140, 147 – 150 and 420; Two criteria
have been established in the case-law of the Tribunal in order to exclude mere cases of civil unrest or single acts of
terrorism in cases of non-international conflicts. The intensity of the conflict and the organisation of the parties should
be assessed in light of the evidence relating to the case, see Kordi} and ^erkez Appeal Judgement, para. 341; Tadi}
Trial Judgement, para. 562; Aleksovski Trial Judgement, para. 43; ^elebii Trial Judgement, para. 184.
3008 Tadi} Jurisdiction Decision, para. 94. See also, e.g. Kunarac Appeal Judgement, para. 66; Marti} Trial Judgement,
para. 40; Prosecution v. Mile Mrk{i}, Trial Judgement, para. 405. For an offence to fall under the scope of Article 3 of
the Statute, four conditions must be met:
(i) the violation must constitute an infringement of a rule of international humanitarian law;
(ii) the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met;
(iii) the violation must be serious, that is to say that it must constitute a breach of a rule protecting important values and
the breach must involve grave consequences for the victim;
(iv) the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of
the person breaching the rule.
288
Case No IT-98-29/1-T 12 December 2007
871. The test to determine the existence of an armed conflict was set out in the Tadi} Jurisdiction
Decision and has been applied consistently by the Tribunal thereafter:
“An armed conflict exists whenever there is a resort to armed force between States or protracted
armed violence between governmental authorities and organised armed groups or between such
groups within a State.”3009
Crimes committed anywhere in the territory under the control of a party to the conflict, until a
peaceful settlement of the conflict is achieved, fall within the jurisdiction of the Tribunal.3010 A
sufficient link between the alleged acts of the accused and the armed conflict as a whole must be
established in order to meet the jurisdictional requirements of Article 3 of the Statute.3011
872. In the Indictment, the Prosecution alleged that an armed conflict existed in BiH at all
material times relevant to the Indictment.3012 The Trial Chamber notes that the Defence did not
dispute that an armed conflict took place in BiH during the Indictment period.3013 Indeed, the
existence of an armed conflict was central to the Defence case; the Defence argued that the intensity
of the conflict showed that the activities of the SRK were a necessary and legitimate response to
ABiH activities, rather than being directed at the civilian population.3014 In addition, the Trial
Chamber heard evidence from several witnesses who confirmed the existence of an armed conflict
between the SRK and the ABiH during the Indictment period.3015 There is abundant evidence of a
linkage between the acts of the Accused and the armed conflict. One need only refer to the evidence
of the orders given by the Accused to various brigades and other units, for example, the report of
the Accused regarding the TV Building.
2. The Crime of Terror
873. Count 1 of the Indictment is charged pursuant to Article 3 of the Statute and Article 51 of
Additional Protocol I and Article 13 of Additional Protocol II. Article 51(2) of Additional Protocol I
and Article 13(2) of Additional Protocol II are similarly worded as follows:
3009 Tadi} Jurisdiction Decision, para. 70. See also, Kordi} and ^erkez Appeal Judgement, para. 341; Tadi Trial
Judgement, paras 561 – 571.
3010 Tadi} Jurisdiction Decision, para. 70; Kunarac Appeal Judgement, para. 57; Prosecution v. Milan Marti}, Trial
Judgement, para. 41; Prosecution v. Mile Mrk{i} et al., Trial Judgement, para. 406 (“Mrksi} et al. Trial Judgement”).
3011 Tadi} Trial Judgement, paras 572 – 573.
3012 Indictment, para. 26.
3013 Defence Opening Statement, 24 May 2007, T. 5686 – 5688; Defence Pre-Trial Brief, para. 17; Defence Closing
Brief, para. 211 et seq. Adjudicated Facts 16, 25 to 35, which refer to the existence of an armed conflict in Bosnia and
Herzegovina in the time between 1992 and 1994.
3014 Defence Opening Statement, 24 May 2007, T. 5686 – 5688, 5697; Trial Hearing, 27 June 2007, T. 7380, 3 July
2007, T. 7518 – 7519, 4 July 2007, T. 7622 – 7623; Defence Closing Arguments, T. 9498.
3015 See e.g. Milorad Kati}, 1 June 2007, T. 6049 – 6050; Ne|eljko U~ur, 26 July 2007, T. 8930; Asam Butt, 15 Feb
2007, T. 2240 – 2242, 2244; Martin Bell, 26 Apr 2007, T. 5271, 5273, 27 Apr 2007, T. 5280 – 5282, D178, p. 7; T-39,
21 June 2007, T. 6998 – 6999; D1, UNPROFOR report on meeting with Karadzi} and others, dated 7 October 1994;
D2, UNPROFOR weekly BH Political Assessment, 3 November 1993, p. 1; D155, Letter by Enver Had`ihasanovi},
dated 15 September 1994; P42, P152, Report by the SRK Commander, 30 June 1995.
289
Case No IT-98-29/1-T 12 December 2007
“The civilian population as such, as well as individual civilians, shall not be the object of attack.
Acts or threats of violence the primary purpose of which is to spread terror among the civilian
population are prohibited.”
The first sentence incorporates a general prohibition of attacks on civilians, while the second
sentence prohibits a specific form of attacks on civilians.3016
874. The crime alleged in the Indictment is that of acts or threats of violence, the primary purpose
of which is to spread terror among the civilian population (“crime of terror”). This crime was
considered for the first time by this Tribunal in the Gali case.3017 The Appeals Chamber held that
the crime of terror was both prohibited and criminalised under customary international law. The
crime falls under Article 3 of the Statute as a violation of the laws or customs of war and the
Tribunal has jurisdiction over the crime.3018
875. In addition to the elements common to offences under Article 3 of the Statute, the Trial
Chamber and the Appeals Chamber in the Gali case found that for the crime of terror the following
specific elements need to be met:
1. Acts or threats of violence directed against the civilian population or individual civilians not
taking direct part in hostilities causing death or serious injury to body or health within the civilian
population;
2. The offender wilfully made the civilian population or individual civilians not taking direct part
in hostilities the object of those acts of violence;
3. The above offence was committed with the primary purpose of spreading terror among the
civilian population.3019
(a) Actus Reus
876. The Appeals Chamber in the Gali case held that the actus reus of the crime of terror is
constituted by acts or threats of violence directed against the civilian population or individual
civilians causing death or serious injury to body or health within the civilian population or to
individual civilians.3020
877. Like the crime of unlawful attacks against civilians, the crime of terror is not limited to
direct attacks against civilians, but may also include indiscriminate or disproportionate attacks or
threats thereof.3021 Similarly, acts and threats of violence do not include legitimate attacks against
3016 Gali Appeal Judgement, para. 87; Gali Trial Judgement, para. 98.
3017 Gali Trial Judgement and Appeal Judgement.
3018 Gali Appeal Judgement, paras 86 – 87, 90, 98; Gali} Trial Judgement, paras 86 – 138.
3019 Gali Trial Judgement, para. 133; Gali Appeal Judgement, paras 100, 101.
3020 Gali Appeal Judgement, paras 100, 101.
3021 Gali Appeal Judgement, para. 102. See infra, para. 944.
290
Case No IT-98-29/1-T 12 December 2007
combatants but only unlawful attacks against civilians.3022 While the nature of the acts or threats of
violence may vary, the important element, as outlined below, is that the acts or threats of violence
are committed with the specific intent to spread terror among the civilian population.3023
(b) Mens Rea
878. As the Trial Chamber in the Gali case held, the crime of terror is a “specific intent
crime.”3024 The mens rea of the crime of terror consists of a general intent and a specific intent. The
general intent is that the offender must have wilfully made the civilian population or an individual
civilian the object of acts or threats of violence.3025 The specific intent is “spreading terror among
the civilian population.”3026
879. The Trial Chamber in the Gali case defined the crime of terror as “wilfully” making the
civilian population or individual civilians not taking direct part in hostilities the object of acts of
violence with “the primary purpose of spreading terror among the civilian population.”3027
“Primary” does not mean that the infliction of terror is the only objective of the acts or threats of
violence. Other purposes may exist simultaneously with the purpose of spreading terror among the
civilian population, provided that the intent to spread terror is principal among the aims of the acts
of violence.3028 Perpetrators committing the crime of terror may have military, political or other
goals. Consequently, the war crime of terror does not require proof of ultimate military or political
goals.3029
880. While the actual infliction of death or serious harm to body or health is a required element
of the crime of terror, both the Trial Chamber and the Appeals Chamber in the Gali case held that
actual infliction of ‘terror’ on the civilian population is not an element of the crime.3030 The fact that
the civilian population suffered and experienced terror during an armed conflict may, however,
serve as corroboration of the intent to terrorise.
881. As the Appeals Chamber held, the specific intent of the crime of terror can be inferred from
the circumstances of the acts or threats of violence, that is, from their nature, manner, timing and
3022 Gali Trial Judgement, para. 135; Gali Appeals Judgement, para. 102.
3023 Gali Appeal Judgement, para. 102.
3024 Gali Trial Judgement, para. 137.
3025 The requirement of wilfulness is laid down in Article 85 (3) of Additional Protocol I.
3026 Gali Appeal Judgement, para. 104; Gali Trial Judgement, para. 133.
3027 Gali Trial Judgement, para. 133.
3028 Gali Appeal Judgement, para.104.
3029 The Trial Chamber notes that an element of political pressure is expressed in a number of international conventions
dealing with ‘terror’/ ’terrorism’ outside the scope of international humanitarian law.
3030 Gali Appeal Judgement, para. 104; Gali Trial Judgement, paras 65, 134.
291
Case No IT-98-29/1-T 12 December 2007
duration.3031 In that regard, this Trial Chamber notes, attacks during cease-fires and truces or longterm
and persistent attacks against civilians, as well as indiscriminate attacks, may be taken as
indicia of the intent to spread terror. The Trial Chamber considers that the specific intent may also
be inferred from the site of the attack. The fact that, during the siege, civilians were targeted and
attacked at sites, well-known to be frequented by them during their daily activities, such as market
places, water distribution points, on public transport, and so on, may provide strong indicia of the
intent to spread terror.
882. In sum, the crime of terror requires the same legal elements as the crime of unlawful attacks
against civilians. However, it is different from the crime of unlawful attacks against civilians in that
it requires the additional mental element of the “primary purpose of spreading terror.”3032 The crime
of terror, therefore, constitutes an “aggravated”, more serious form of, unlawful attack on civilians.
The law on unlawful attacks against civilians is set out in Section III.A.6 below.
(c) The Concept of “Terror”
883. ‘Terror’ is the key term in the formulation of the crime of terror. The Trial Chamber in the
Gali case noted that the Prosecution did not provide a definition of ‘terror’ in its preliminary
submissions, but that, in the course of the trial, it adopted a definition given by an expert which
equated ‘terror’ with “extreme fear”.3033 That Trial Chamber also cited the Defence submission that
“terror has to be of the highest intensity. It has to be long-term. It has to be direct. And it has to be
capable of causing long-term-consequences”.3034 The Trial Chamber in the Gali case ultimately
accepted the Prosecution’s rendering of terror as “extreme fear”.3035 Like the Trial Chamber, the
Appeals Chamber in the Gali case did not define the term ‘terror’. In a footnote, the Appeals
Chamber merely noted that “terror could be defined, as the Trial Chamber did, as ‘extreme
fear’”.3036 As such, neither the Trial Chamber nor the Appeals Chamber in the Gali} case carried
out an examination of the term ‘terror’.3037
3031 Gali Appeal Judgement, para. 104.
3032 See also, Gali Trial Judgment, para. 162.
3033 Gali Trial Judgement, para. 75 referring to the Prosecution Response to Acquittal Motion, para. 16.
3034 Gali Trial Judgement, para. 83 referring to Defence Closing Arguments, T. 21810.
3035 Gali Trial Judgement, para. 137.
3036 Gali Appeals Judgement, fn 320.
3037 The Trial Chamber in the Gali case did not consider it necessary to enter into a discussion of what it called
“’‘political’ terrorist violence” and its regulation in various international instruments; Gali Trial Judgement, fn 222
and fn 150. Unlike the Statute of this Tribunal, the Statutes of the International Criminal Tribunal for Rwanda (“ICTR”)
and of the Special Court for Sierra Leone (“SCSL”) enumerate ‘acts of terrorism’ in their respective articles dealing
with serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II. In its first
judgement issued on 20 June 2007, the SCSL found that the accused were criminally responsible for, inter alia, the
crime “acts of terrorism” pursuant to Article 3(d) of the SCSL Statute. In dealing with the elements of the crime “acts of
terrorism”, the SCSL, however, simply reproduced the elements set out by the Trial Chamber in the Gali case. The
292
Case No IT-98-29/1-T 12 December 2007
884. ‘Terror’, in its ordinary meaning, denotes “the state of being terrified or greatly frightened;
intense fear, fright or dread” or the “action or quality of causing dread; terrific quality or
terribleness.”3038
885. When asked by the Trial Chamber to define ‘terror’ during its Closing Arguments, the
Prosecution gave the following definition:
“No one knew whether they might be the next victim. It affected every waking moment of their
lives. People for 15 months over the period of this indictment knew absolutely no sense of safety
anywhere in the city. Terror is ... the intentional deprivation of a sense of security. It’s been sic
the primal fear that people feel when they see someone in front of them gunned down and that
moment of panic when they try and run to help the victim, waiting for the next shots to come, and
you’ve had ample evidence about that.”3039
“And it’s not just ... the fear that comes from being nearby the combat. This is a fear calculated
to demoralise, to disrupt, to take away any sense of security from a body of people who have
nothing ... to do with the combat.”3040
During its closing arguments, the Defence stated the following when addressing the issue of terror:
“The terror that my learned friend spoke about, the primordial fear which the primal fear, this fear
was there for everyone, it was felt by everyone, civilians and soldiers alike. If someone had a
strategy of terrorising and killing civilians, it would not have been possible for several thousand of
their soldiers to be killed. ... This shows that that area was a theatre of heavy fighting, of serious
conflicts, and one cannot characterise this as a civilian area and speak of civilians as the sole
targets at the time of the events in this indictment.”3041
The Defence thereby appeared to challenge the terror charge on the basis that there was heavy
fighting in all of Sarajevo which caused terror among everyone.
886. The Trial Chamber finds that the response of the Prosecution captures the essence of what
the term terror denotes.
887. The Trial Chamber emphasises that the existence of an armed conflict constitutes a general
requirement of Article 3 of the Statute and also of the crime of terror pursuant to Article 51 of
Additional Protocol I and Article 13 of Additional Protocol II. In that regard, the Trial Chamber
notes a growing tendency in international law to distinguish between terror in times of peace and
terror in a situation of armed conflict as understood in international humanitarian law.3042 However,
ICTR thus far has not dealt with a case involving “acts of terrorism”: Prosecutor v. Alex Tamba Brima, Brima Bazzy
Tamara, Santigie Borbor Kanu, Case No. SCSL-04-16-T, Judgement, 20 June 2007.
3038 Oxford English Dictionary, Second Edition 1989, ‘terror’; ‘Terror-bombing’ denotes “intensive and indiscriminate
bombing designed to frighten a country into surrender”. ‘Reign of terror’ denotes “a state of things in which the general
community live in dread of death or outrage”.
3039 Prosecution Closing arguments, 9 Oct 2007, T. 9468.
3040 Prosecution Closing arguments, 9 Oct 2007, T. 9472.
3041 Defence Closing arguments, 10 Oct 2007, T. 9525.
3042 Most international conventions are confined to terror not governed by international humanitarian law. The
International Convention against the Taking of Hostages of 1979, Art. 12; International Convention for the Suppression
of Terrorist Bombings 1997 (A/Res/52/164 or UNTS 284), Art. 19(2); Nuclear Terrorism Convention of 2005
293
Case No IT-98-29/1-T 12 December 2007
the Trial Chamber observes that attacks directed against the civilian population are equally
prohibited in the international instruments dealing with the crime of terror in peace time.
888. The Trial Chamber also notes that the crime of terror only covers acts or threats of violence
which are specifically intended to spread terror among the civilian population. It must be
established that the terror goes beyond the fear that is only the accompanying effect of the activities
of armed forces in armed conflict. The prohibition of spreading terror among a civilian population
must therefore always be distinguished from the effects that acts of legitimate warfare can have on a
civilian population.3043 The Trial Chamber notes that a certain degree of fear and intimidation
among the civilian population is present in nearly every armed conflict.3044 The closer the theatre of
war is to the civilian population, the more it will suffer from fear and intimidation. This is
particularly the case in an armed conflict conducted in an urban environment, where even legitimate
attacks against combatants may result in intense fear and intimidation among the civilian
population, but to constitute terror, an intent to instil fear beyond this level is required. Therefore,
the circumstances of a particular armed conflict must be taken into account in determining whether
the crime of terror has been committed, or whether the perpetrators intended to “spread terror
among a civilian population.”
3. Evaluation of the Evidence
(a) Civilian Status of the Population
889. The status of the population in Sarajevo during the conflict is of critical significance to the
Indictment as a whole. The Prosecution’s case is that the population of Sarajevo had a civilian
status. However, the Defence challenged this with regard to Sarajevo as a whole and for a number
of particular areas within the confrontation lines. A determination as to whether the population was
civilian or not is necessary in respect of every count. For that reason, it is convenient to consider
and determine that question at this stage.
(A/Res/59/290). The scope of the Draft Comprehensive Convention on Terrorism was, and still is, a very contentious
issue and was considered a “key central focus”, Currently, the Draft Comprehensive Convention against International
Terrorism contains an exemption for the activities of armed forces during an armed conflict. Article 20(2) (A/61/37,
Report of the Ad Hoc Committee established by General Assembly resolution 51/210 of 17 December 1996, Tenth
Session (27 February – 3 March 2006), p. 4; A/62/37, Report of the Ad Hoc Committee established by General
Assembly resolution 51/210 of 17 December 1996, Eleventh Session (5, 6 and 15 February 2007), p. 6. See also, for a
distinction of terrorism “in times of peace” and in times of armed conflict: Antonio Cassese, The Multifaceted Criminal
Notion of Terrorism in International Law, 4 JICJ 2006, 933 ff. argues that a customary rule on the crime of terrorism in
peace time has already evolved.
3043 Gali Trial Judgement, para. 101.
3044 See also, French delegation, Official Records, vol. XIV, p. 65: “in traditional war attacks could not fail to spread
terror among the civilian population: what should be prohibited ... was the intention to do so.”
294
Case No IT-98-29/1-T 12 December 2007
890. In its Final Brief, the Defence argued that the Prosecution did not show beyond reasonable
doubt that acts of violence “were directed against the civilian population as such or against civilian
persons and facilities and were indiscriminate, given that combat between the warring parties in the
city of Sarajevo took place in military zones that were either completely free of civilians or
deprived of their civilian status owing to the high number of military targets present among the
civilians and civilian property.”3045 This argument has two parts. First, the Defence challenges the
allegation that the underlying crimes were committed as part of a widespread or systematic attack
directed against any civilian population and thus challenges the applicability of Article 5 of the
Statute. Second, the Defence challenges the Prosecution allegation that the acts of violence were
directed against individual civilians or a civilian population and thus the further allegation that the
crimes of terror and unlawful attacks against civilians under Article 3 of the Statute were
committed.
891. During its closing arguments, the Defence expanded on this challenge, saying that “it must
be established beyond reasonable doubt that it was, indeed, a civilian area and that it was, indeed, a
civilian population and that this man sitting today before you in the dock had no other intention than
to use his powerful army against that civilian population.”3046 The argument of the Defence is
particularly focused on the summer months of 1995, the period during which the ABiH launched an
offensive.3047
892. The Defence also argued that the ABiH intentionally mixed military targets with civilian
targets, by “setting up ABiH headquarters in civilian-looking buildings,” “mixing uniformed
fighters with non-combatants” and by having members of the ABiH move between trenches without
uniform.3048 The Defence concludes that, “as several brigades of the BH Army 1st Corps had their
combat positions, headquarters, and weapons depots in the city of Sarajevo on territory under BH
Army control, one can reasonably conclude that military targets were common on that territory.”3049
893. During its closing arguments, the Prosecution responded to the Defence argument. It
submitted that “any Defence argument that the reason civilians were killed and injured was due to
the deliberate intermingling by the ABiH of military targets with civilians and civilian objects is an
attempt to draw attention away from the charges at hand. If the Defence is saying that the Accused
had information that civilians were mixed among military targets, the Accused was under an
obligation to gather sufficient information to ensure that in any attacks against such a target, the
3045 Defence Final Brief, p. 80.
3046 Defence Closing Arguments, T. 9498.
3047 For evidence pertaining to this offensive, see Section II.E.9(d) ABiH Offensives.
3048 Defence Final Brief, paras 100 – 102.
3049 Defence Final Brief, para. 102.
295
Case No IT-98-29/1-T 12 December 2007
anticipated military advantage outweighed the anticipated loss to civilian life.”3050 It further
submitted that even if “certain civilian objects become legitimate objects of attack, any such attack
must still be conducted with respect for the principles of distinction and proportionality.”3051
894. The status of a population may change due to the flow of civilians and combatants.3052 The
evidence showed that the ABiH 1st Corps had between 60,000 and 78,000 troops during the
conflict, of which approximately 40,000 to 45,000 were stationed in Sarajevo.3053 The establishment
of the 12th Division of the ABiH did not change this number significantly.3054
895. The evidence of Prosecution expert Ewa Tabeau and Defence witness Maj. Veljovi} showed
that at the start of the conflict there were approximately 500,000 persons in the ten municipalities of
Sarajevo.3055 After the start of the conflict, approximately 40,000 to 60,000, out of 150,000,
Bosnian Serbs remained inside the confrontation lines and many of the approximately 100,000
Bosnian Muslims moved to the Bosnian Muslim-dominated areas inside the confrontation lines.3056
In Hrasnica alone, the population increased from approximately 30,000 to 50,000 persons, due to an
influx of Bosnian Muslims from areas such as Trnovo and Eastern Bosnia.3057 The evidence showed
that at the very start of the conflict, people were evacuated from the area of Sarajevo, but there is no
evidence that large population movements occurred as the conflict continued.3058
896. Taking into account all the population fluctuations at the start of the war, the Trial Chamber
finds that the populated urban areas within the confrontation lines were civilian in status. For
example, the evidence showed that in the Bosnian Muslim-held territory of Dobrinja alone, the
population numbered 27,000 persons, with the presence of approximately 2,200 troops of the
Dobrinja Brigade, and that the Old Town, located well within the confrontation lines, was a
densely-populated area.3059 The Trial Chamber further notes that the 40,000 to 45,000 troops of the
1st Corps were not all stationed in densely-populated areas. Rather, many soldiers were deployed in
trenches or positions along the confrontation lines.3060 While acknowledging that in the normal run
of military activities, some soldiers would visit their homes, in the view of the Trial Chamber, the
overall effect of that movement would not have altered the civilian status of those urban areas.
3050 Prosecution Closing Arguments, T. 9418.
3051 Prosecution Closing Arguments, T. 9419.
3052 See infra, Section III.A.6 Counts 4 and 7: Unlawful Attacks against Civilians.
3053 See supra Section II.B.1(b) ABiH Structure.
3054 See supra Section II.B.1(b) ABiH Structure
3055 P637, Expert report Ewa Tabeau, p. 67; Stevan Veljovi}, 31 May 2007, T. 5930, 5959, 5975.
3056 See supra, Section II.C. Sarajevo 1992 - 1994.
3057 W-57, 17 Apr 2007, T. 4548.
3058 See supra, Section II.C. Sarajevo 1992 - 1994.
3059 See supra, paras. 119 - 120, 466.
3060 See, e.g., Sections II.B.3(e); II.E.9(d) ABiH Offensives.
296
Case No IT-98-29/1-T 12 December 2007
897. There is evidence that the troops of the 1st Corps were supported by troops of other ABiH
corps during the summer offensive. However, there is no evidence to suggest a massive influx of
ABiH troops into the urban areas within the confrontation lines in Sarajevo which could have
altered the civilian status of that area.
898. It is clear that military targets existed inside the confrontation lines. For example, an ABiH
military map showed around 30 command posts of ABiH units throughout the entire area inside the
confrontation lines.3061 However, these military targets, too, cannot be said to be of such great
numbers that they would deprive the entire urban area within the confrontation lines of its civilian
status. In the circumstances, therefore, the Defence submission that the entire area inside the
confrontation lines of Sarajevo was a military area is rejected, and the Trial Chamber finds that the
area had civilian status.
899. The Defence also submitted that certain areas within the confrontation lines were “military
zones”, namely Hrasnica, Sedrenik and Vojni~ko Polje. The shelling incidents in Hrasnica took
place on 7 April 1995, 1 July 1995 and 23 July 1995. The evidence pertaining to the period of the
end of March and early April 1995 shows that that there was fighting in the general area around
Mount Igman and Treskavi}a.3062 The evidence also shows that fighting occurred along the
confrontation lines, including at the lines at the Famos Factory. However, most of the fighting took
place many kilometres away from Hrasnica.3063 Furthermore, the evidence does not show troop
movement through Hrasnica on their way from Sarajevo to the Mount Igman and Tre{kavica areas,
or vice versa, on a scale that would alter the civilian status of Hrasnica in April 1995.
900. With particular regard to the time period in which the scheduled shelling incident of 1 July
1995 took place in Hrasnica, an ABiH combat report, dated 1 July 1995, shows that troops of the
12th Division, stationed inside the confrontation lines, attacked the Ne|ari}i barracks, located
several kilometres from Hrasnica.3064 However, there is no indication in the evidence that ABiH
troops moved through Hrasnica on a scale that would alter the civilian status of the area. On the
basis of the evidence discussed above, the civilian status of Hrasnica remained unchanged in April
1995 and during the summer offensive in 1995.
901. It is significant that the Defence offered absolutely nothing to substantiate its submission
that Sedrenik was a military zone. On the contrary, Ned`ib \ozo, a BiH police officer who
3061 P194, Military map of Sarajevo.
3062 P696, Order by SRK Commander, 4 April 1995; D509, ABiH combat report, dated 3 April 1995; D59, Military
map.
3063 P696, Order by SRK Commander, 4 April 1995; P883, UNMO daily sitrep, dated 4 April 1995; P226, Order by
SRK Commander, 6 April 1995. See also supra, Section II.E.9(d) ABiH Offensives.
3064 D425, ABiH combat report, dated 1 July 1995.
297
Case No IT-98-29/1-T 12 December 2007
investigated many sniping incidents in Sedrenik, testified that “there was no military activity in that
neighbourhood; it was a purely residential area.”3065 Dervi{a Selmanovi} stated that Sedrenik was a
“strictly civilian neighbourhood.”3066 On the basis of her evidence as to the time she lived in
Sedrenik, the Trial Chamber is satisfied that Dervi{a Selmanovi} was sufficiently familiar with the
settlement to speak to its civilian nature. Similarly, Tarik @uni} said, in cross-examination, that
ABiH troops did move through the area on their way to the trenches, but did so only at night in
order not to endanger the civilians living in Sedrenik. Finally, Lt. Col. Harry Konings, team leader
of the UNMO team that was deployed in Sedrenik, testified that, as was common for UNMO teams,
their team base in Sedrenik was located “in the middle of the civilian population.”3067 The Trial
Chamber finds that the neighbourhood of Sedrenik was located close to confrontation lines.
However, its proximity to the confrontation lines does not alter Sedrenik’s civilian status, nor does
the military activity that took place at the confrontation lines. Moreover, the Trial Chamber finds
that there was no military asset in Sedrenik that could alter its civilian status. In light of the
evidence, the Trial Chamber finds that Sedrenik was, contrary to the Defence submission, a civilian
area with a civilian population.
902. In respect of Vojni~ko Polje, the evidence shows that the confrontation line ran just in front
of the School of the Blind. Defence witness T-60, a civilian who lived in an apartment building in
Vojniko Polje, testified that, in 1994 and 1995, most of the buildings in his area were inhabited by
the ABiH.3068 He stated that he did not see any civilians and that “one could only observe troops
there, either in camouflage military uniforms or in civilian clothes but with weapons.”3069 When
asked about the building with the passageway where Adnan Kasapovi} was shot on 24 October
1994, T-52 testified that he never went there, but that he could see the ABiH soldiers there.3070
903. Prosecution witnesses W-62 and Ermin Kre~o testified that during the war there was an
ABiH dormitory in the vicinity of the passageway where Adnan Kasapovi} was shot. They also
spoke about going to visit friends who lived in the same neighbourhood; this shows that civilians
were present in the area. While, as stated above, T-60 said that “most” of the buildings were
inhabited by the ABiH and that he did not see any civilians, he also gave evidence of the presence
of civilians in the area; T-60 testified that he lived in one of the apartment buildings in Vojni~ko
Polje and other civilians lived in his building. His testimony that civilians were only living in his
building is not supported by the evidence of W-62 and Ermin Kre~o, who lived in another
3065 Ned`ib \ozo, P363, p. 2.
3066 Dervisa Selmanovi}, P169, p. 2.
3067 Harry Konings, 12 Mar 2007, T. 3553 – 3554.
3068 T-60, 25 July 2997, T 8815- 8816; D352, Photograph marked by T-60 (under seal).
3069 T-60, 25 July 2007, T. 8817, 8843 - 8844; D352, Photograph marked by T-60 (under seal)
3070 T-52, 28 June 2007, T7458; D279, Photograph marked by T-52.
298
Case No IT-98-29/1-T 12 December 2007
apartment building. Furthermore, Defence witness T-52 testified that the ABiH held positions in the
high-rise buildings in Vojniko Polje and Alipašino Polje.3071 However, in cross-examination, he
confirmed that the high-rise buildings in Vojniko Polje, in front of the School of the Blind, were
probably inhabited by civilians in 1994 – 1995, but said that he did not see them.3072 Similarly, T-
48 thought that civilians lived in the apartment buildings, although he also did not see them. On the
basis of the evidence of these witnesses, the Trial Chamber is satisfied that Vojni~ko Polje was a
civilian area and finds that the presence of an ABiH dormitory does not alter the civilian status of
this area.
904. In sum, the Trial Chamber rejects the Defence submission that the entire area of Sarajevo
was a military zone and that the areas of Hrasnica, Sedrenik and Vojni~ko Polje were also military
zones. Instead, the Trial Chamber reiterates its earlier findings that these areas had civilian status.
(b) Terror
905. As to the evidence pertaining to the crime of terror, the Trial Chamber recalls its earlier
finding that the SRK was responsible for the sniping and shelling of the area within the
confrontation lines. It also found that as a result, civilians were seriously injured or killed.3073 The
evidence adduced in relation to sniping amply supports the charge of terror. In addition to the
evidence pertaining to the scheduled incidents, the Trial Chamber heard other evidence of shelling
and sniping of the civilians and the civilian population inside the confrontation lines in Sarajevo.
The evidence shows that civilians were continuously exposed to shelling and sniping and that
numerous civilians were wounded or killed, although some witnesses noted that the level of
intensity varied, particularly with regard to shelling.3074 The varying intensity notwithstanding, the
evidence of Berko Ze~evi} and several UNMOs shows that artillery and mortar explosions were a
daily occurrence in Sarajevo.
906. The Defence challenged the terror charge by leading evidence designed to show that the
SRK troops acted only in response to provocation or in order to protect their families.3075 It argued
that the SRK desired peace.3076 The Trial Chamber understands this argument to be a challenge to
the intent element for the crime of unlawful attacks against civilians. In this respect, the Trial
Chamber recalls that in prohibiting attacks against civilians and civilian objects, Article 49 of
3071 T-52, 28 June 2007, T. 7432; D279, Photograph marked by T-52.
3072 T-52, 28 June 2007, T. 7458.
3073 See supra, paras 794, 796.
3074 See supra, Sections II.E.5 Shelling during Indictment Period; II.E.1 Patterns of Sniping and Shelling of Sarajevo.
3075 Defence Final Brief, paras 75 – 77. See also supra, Sections II.E.9.(c) Defence Allegations of Provocations;
II.E.9(d) ABiH Offensives.
3076 Defence Final Brief, paras 75 – 77.
299
Case No IT-98-29/1-T 12 December 2007
Additional Protocol I defines “attacks” as meaning “acts of violence against the adversary, whether
in offence or defence”.3077 There is an unconditional and absolute prohibition on the targeting of
civilians in customary international law:3078 Any attack directed at the civilian population is
prohibited, regardless of the military motive.
907. A number of Prosecution witnesses, including Ismet Had`i}, John Jordan, Lt. Com. Thomas
Knustad and W-137, testified that the shelling was carried out in an indiscriminate manner.3079 Lt.
Col. Konings stated that one of the consequences of using mortars as “harassment fire”, as it was
used in Sarajevo, is the infliction of a lot of harm, especially against civilians.3080 No area in
Sarajevo was safe from the shells; the Trial Chamber heard of shells striking in Hrasnica, Sokolovi}
Kolonija, Marindvor, Alipa{ino Polje, Dobrinja, Ba{~ar{ija, Ko{evo Polje, Alipa{in Most, Hrasno
and many other locations throughout Sarajevo. The shelling was aimed at civilian areas, such as
parks, cemeteries, market places and water collection points. Azra [i{i} recalled that it was “very
risky” to leave one’s apartment building to collect food from 100 to 200 metres away because of the
shelling.3081
908. Sniping was also pervasive throughout the city. Witnesses testified that civilians were killed
by fire from Špicasta Stijena, Grbavica, Mount Trebevi, Vraca, the Jewish Cemetery, and the
curve of the Lukavica-Pale road above Skenderija, and above Debelo Brdo.3082 John Jordan recalled
that in nice weather the snipers were particularly active, “people came out, made it a target-rich
environment and the snipers got busy.”3083 Snipers targeted places where civilians gathered,
including, for example, where people queued for and collected water. Sometimes snipers would
shoot at the water containers people were carrying. Witnesses recalled going to collect water late at
night or very early in the morning, when there was no sniping.3084 Bogdan Vidovi} testified that it
was hard to single out a particular neighbourhood in Sarajevo that was more susceptible to sniping
than another.3085 However, there were areas around Sarajevo that were known to be used by snipers
and to be particularly dangerous for civilians.3086 Trams and buses, and people on them, were
targeted.3087 In the general area of the Marindvor, people had to run across the street and it was a
matter of luck whether they were hit or not.3088 The Holiday Inn area of the main thoroughfare,
3077 Emphasis added.
3078 Bla{ki} Appeal Judgement, para. 109; Kordi and erkez Appeal Judgement, para. 54.
3079 See, e.g., supra, paras 420, 758.
3080 See supra, para. 420.
3081 See supra, para. 423, and, generally, Section II.E.5 Shelling during the Indictment Period.
3082 See supra para. 323, and, generally, Section II.E.3 Sniping during the Indictment Period.
3083 See supra, para. 198.
3084 See supra para. 208.
3085 Bogdan Vidovi}, 13 Feb 2007, T. 2063. See also, W-62, 24 Jan 2007, T. 925 – 926. Cf. Nefa [ljivo, P531, p. 2.
3086 See supra paras 211, and Sections II.E.3(ii) Marindvor and Zmaja od Bosne.
3087 See supra, Section II.E.3(a)(i) Public Transport.
3088 W-118, P175, p. 3 (under seal).
300
Case No IT-98-29/1-T 12 December 2007
Zmaja od Bosne, was dubbed ‘Sniper Alley’ in a direct reference to the numerous incidents
involving sniper fire in that area.
909. The evidence shows that the very role of snipers requires that any shot they take is
deliberate, intended to kill or seriously injure the target. Some witnesses testified that the SRK
snipers were very skilled.3089 The Trial Chamber heard evidence of a number of trams being shot at
and several passengers being killed or seriously injured. The evidence shows that these incidents
took place during cease-fires. There are passages in the evidence that clearly demonstrate the sheer
fear and horror experienced by those passengers. Nothing illustrates more graphically the intent of
the perpetrators and the victimisation of the passengers than the evidence that was repeated time
and again of a tram slowing down to pass the S-curve and being deliberately targeted while it was
so doing. Slavica Livnjak described how she would bend her head every time she negotiated the
S-curve with her tram. The tram and its passengers were virtually sitting ducks or, to use another
avian metaphor, in the words of a witness, “clay pigeons.”3090
910. Not only was the civilian population starved and deprived of its opportunity to leave the city
for fourteen months, it was also subjected during that period to conditions which would inevitably
instil extreme fear and create insecurity by virtue of the incessant sniping and shelling of the city.
The inability to escape from this trap of horror for any extended period of time unavoidably
weakened the besieged population’s will to resist, and worse, it left deep and irremovable mental
scars on that population as a whole.
911. The Trial Chamber finds that every incident of sniping resulting in death or serious injury
that has been referred to earlier in the Judgement, and in respect of which it found that the sniping
originated from Bosnian Serb-held territory and was carried out by members of the SRK, is an
example of terror within the meaning of Count 1.
912. Furthermore, in light of the evidence referred to earlier in the Judgement on the basis of
which the Trial Chamber found that the SRK was responsible for shelling civilians and civilian
areas by modified air bombs, and particularly in light of the evidence of the indiscriminate nature of
the modified air bomb, the knowledge of the SRK of that indiscriminate character, the gravity of the
injuries and the number of deaths caused by the use of these highly inaccurate bombs, the Trial
Chamber finds that terror within the meaning of Count 1 was committed by the SRK forces. In this
respect, the Trial Chamber also recalls its earlier finding that only the SRK possessed and used
modified air bombs to target the civilian areas in Sarajevo. It is perfectly reasonable for the Trial
3089 See supra, paras 109, 204, 241.
3090 See supra, para. 198.
301
Case No IT-98-29/1-T 12 December 2007
Chamber to infer an intent to terrorise from the very use by the SRK of this highly inaccurate and
indiscriminate weapon, the modified air bomb.
913. In light of the evidence referred to earlier in the Judgement on the basis of which the Trial
Chamber found that the SRK was responsible for shelling civilians and civilian areas, and
particularly in light of the evidence as to the accuracy of mortars and the skill of the SRK mortar
crews, the firing of numerous shells into the city, the gravity of the injuries and the number of
deaths caused by mortar fire, the Trial Chamber finds that the deliberate targeting of civilians in the
city, with these accurate weapons, fired in such high numbers, constitutes terror within the meaning
of Count 1. Since it is acknowledged that a mortar is an accurate weapon and that the crew thereof
were highly trained, the Trial Chamber is entitled to infer from the use of that weapon an intent to
terrorise.
4. Counts 2 and 5: Murder
914. Under Counts 2 and 5, the Prosecution charged the Accused with criminal responsibility
under Articles 7(1) and 7(3) of the Statute for the crime of murder, a crime against humanity. In
order to substantiate these charges, the Prosecution must establish that murder as a crime against
humanity was committed by SRK troops. The Trial Chamber must, therefore, consider what
constitutes a crime against humanity and what constitutes the crime of murder.
915. In order for the Tribunal to have jurisdiction under Article 5, the crime must have been
committed in armed conflict.3091 The phrase “committed in armed conflict” requires only “the
existence of an armed conflict at the relevant time and place.”3092 The underlying crimes need not
be closely related to the armed conflict; it suffices that they be linked geographically and temporally
with it.3093 This requirement is purely jurisdictional and does not constitute a substantive element of
a crime against humanity.3094
916. In order to constitute a crime against humanity, the acts of an accused must be part of a
widespread or systematic attack directed against a civilian population. As interpreted by the
Appeals Chamber, this phrase encompasses five elements.3095
3091 Kunarac Appeal Judgement, para. 82; Tadi} Appeal Judgement, para. 249; Gali} Trial Judgement, para. 139;
Mrksic et al. Trial Judgement, para. 429.
3092 Tadi} Appeal Judgement, para. 249; Mrksic et al. Trial Judgement, para. 430.
3093 Kunarac Appeal Judgement, paras 83, 86; Tadi} Appeal Judgement, paras 249, 251; Gali} Trial Judgement, para.
139; Kupre{ki} Trial Judgement, para. 546; Mrksic et al. Trial Judgement, para. 432.
3094 Kunarac Appeal Judgement, para. 83; Tadi} Appeal Judgement, para. 249.
3095 The five elements are (i) there must be an attack; (ii) the acts of the perpetrator must be part of the attack; (iii) the
attack must be directed at any civilian population; (iv) the attack must be widespread or systematic; (v) the perpetrator
knows that his acts constitute part of a pattern of widespread or systematic crimes directed against a civilian population
302
Case No IT-98-29/1-T 12 December 2007
(a) Attack
917. When assessing whether an attack against a particular civilian population occurred, it is not
relevant whether the other side also committed atrocities against its opponent’s civilian
population.3096 Evidence of this nature is not relevant unless it tends to prove or disprove any of the
allegations made in the Indictment, particularly to refute the allegation that there was a widespread
or systematic attack against a civilian population.3097 Such an allegation cannot be disproved by a
submission that the other side is responsible for starting the hostilities.3098 The Trial Chamber finds
that there is an abundance of evidence of attacks by SRK troops.
(b) Nexus between the Acts of the Perpetrator and the Attack
918. The required nexus between the acts of the perpetrator and the attack consists of two
elements: (i) the commission of an act which, by its nature and consequences, is objectively part of
the attack; together with (ii) knowledge on the part of the perpetrator that there is an attack on the
civilian population and that his act is part thereof.3099
919. While the acts of the perpetrator must be “part of” the attack against the civilian population,
they need not be committed in the midst of that attack.3100 As the Appeals Chamber in Kunarac
stated, a crime:
“which is committed before or after the main attack against the civilian population or away from it
could still, if sufficiently connected, be part of that attack. The crime must not, however, be an
isolated act. A crime would be regarded as an ’isolated act’ when it is so far removed from that
attack that, having considered the context and circumstances in which it was committed, it cannot
reasonably be said to have been part of the attack.”3101
920. The Trial Chamber finds on the basis of the evidence that the required nexus exists.
and knows that his acts fit into such a pattern. Kunarac Appeal Judgement, para. 85, endorsing Kunarac Trial
Judgement, para. 410; Marti} Trial Judgement, para. 49; Mrksic et al. Trial Judgement, para. 435.
3096 Kunarac Appeal Judgement, para. 87. The Appeals Chamber continues: “The existence of an attack from one side
against the other side’s civilian population would neither justify the attack by that other side against the civilian
population of its opponent nor displace the conclusion that the other side’s forces were in fact targeting a civilian
population as such,” citing Kupre{ki} Trial Judgement.
3097 Kunarac Appeal Judgement; para. 88; Gali} Trial Judgement, para. 145.
3098 Kunarac Appeal Judgement, para. 88; Gali} Trial Judgement, para. 145.
3099 Kunarac Appeal Judgement, para. 99; Tadi} Appeal Judgement, paras 248, 251, 271.
3100 Tadi} Appeals Judgement, para. 248; Naletili Trial Judgement, para. 234; Kordi Trial Judgement, para. 178;
Mrksic et al. Trial Judgement, para. 438.
3101 Kunarac Appeal Judgement, para. 100; Kupre{ki} Trial Judgement, para. 550; Tadi} Trial Judgement, para. 119.
303
Case No IT-98-29/1-T 12 December 2007
(c) Directed against any Civilian Population
921. As held by the Appeals Chamber in Kunarac, the term “directed against any civilian
population” signifies that “the civilian population is the primary object of attack.”3102 In assessing
whether the civilian population was the primary object of attack, the following factors, inter alia,
are to be considered: the means and method used in the course of the attack, the status of the
victims, their number, the discriminatory nature of the attack, the nature of the crimes committed in
the course of the attack, the resistance to the assailants at the time and the extent to which the
attacking force may be said to have complied or attempted to comply with the precautionary
requirements of the laws of war.3103
922. The term “civilian population”, broadly interpreted, refers to a population that is
predominantly civilian.3104 The civilian population comprises all persons who are civilians.3105 It is
important to recall that the presence of soldiers does not necessarily deprive a civilian population of
its civilian character.3106 As the Appeals Chamber ruled in Kordi} and erkez:
“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.”3107
923. In Gali, the Appeals Chamber clarified that when the status of a population has yet to be
determined, or the status may be changing due to the flow of civilians and military personnel, the
conclusion is somewhat different.3108 In Bla{ki}, the Appeals Chamber found that the number of
soldiers present within a civilian population, along with the purpose of their presence, must both be
examined to ascertain whether they deprive the population of its civilian nature.3109 The Appeals
Chamber quoted from the ICRC Commentary on the issue:
“… in wartime conditions 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.”3110
3102 Kunarac Appeal Judgement, para. 91. See also, Kordi} and erkez Appeal Judgement, para. 96; Bla{ki} Appeal
Judgement, para. 106; Gali} Trial Judgement, para. 142; Marti} Trial Judgement, para. 49(2); Mrksic et al. Trial
Judgement, para. 440.
3103 Ibid.
3104 Jelisi} Trial Judgement, para. 54; Kupre{ki} Trial Judgement, paras 547 – 549; Naletili} Trial Judgement, para. 235;
Kordi} and erkez Trial Judgement, para. 180; Blagojevi} and Joki} Trial Judgement, para. 544; Mrksic et al. Trial
Judgement, paras 442, 458.
3105 Article 50(2), Additional Protocol I.
3106 Gali} Appeal Judgement, para. 144, citing Bla{ki} Appeal Judgement, para. 115 (also paras 110, 113); Gali} Trial
Judgement, para. 143.
3107 Kordi} and erkez Appeal Judgement, para. 50. See also, Gali} Appeal Judgement, para. 144.
3108 Gali} Appeal Judgement, para. 137.
3109 Bla{ki} Appeal Judgement, para. 110 – 116. See also, Kordi} and erkez Appeal Judgement, para. 97.
3110 ICRC Commentary, para. 1922.
304
Case No IT-98-29/1-T 12 December 2007
924. It is sufficient to show that enough individuals were targeted in the course of the attack, or
that they were targeted in such a way that the attack was, in fact, directed against a civilian
“population” and not against a limited and randomly-selected number of individuals.3111 The Trial
Chamber has already found, in relation to Count 1, that the attacks of the SRK troops were directed
against the civilian population. 3112
(d) Widespread or Systematic
925. In the context of a crime against humanity, an attack must be “widespread” or “systematic”
but need not be both.3113 The Trial Chamber recalls the case-law of the Tribunal, according to
which the phrase “widespread” denotes the large-scale nature of the attack and the number of
targeted persons, while the phrase “systematic” refers to the organised nature of the acts of violence
and the improbability of their random occurrence.3114
926. The assessment of whether an attack is widespread or systematic is relative to the civilian
population under attack and a Trial Chamber must, in light of the means, methods, resources and
result of the attack upon the population, ascertain whether the attack was indeed widespread or
systematic.3115
927. As to the widespread nature of the attack, there is evidence of a very large number of attacks
by way of mortars, modified air bombs and sniping, spread out over the entire city of Sarajevo over
a prolonged period of time. There is evidence of a very large number of persons targeted on trams
and in other locations. Although the Prosecution has based the Indictment on a campaign of shelling
and sniping carried out by the SRK, the Trial Chamber does not consider it necessary to examine
whether there was in fact a campaign. A campaign is a military strategy; it is not an ingredient of
any of the charges in the Indictment, be that terror, murder or inhumane acts. In the particular
context of a crime against humanity, the Trial Chamber needs to be satisfied that there was a
widespread or systematic attack and not that a campaign was carried out. It may be that proof of the
existence of a campaign would also be proof of a widespread or systematic attack, but the Trial
Chamber considers it important to distinguish between the term “campaign”, which is merely
descriptive or illustrative of the Prosecution’s case and the legal ingredients of the charges. In the
instant case, the Trial Chamber is satisfied that the evidence substantiates the widespread character
3111 ICRC Commentary, para. 1922. See also, Mrksic et al. Trial Judgement, para. 458.
3112 See infra, paras. 905 - 907, 910, 913.
3113 See e.g. Staki} Appeal Judgement, para. 246; Kordi} and erkez Appeal Judgement, para. 93.
3114 See e.g. Kordi} and erkez Appeal Judgement, para. 94; Bla{ki} Appeal Judgement, para. 101; Kunarac Appeal
Judgement, para. 94.
3115 Kunarac Appeal Judgement, para. 95, endorsing Kunarac Trial Judgement, para. 430. See also, Gali} Trial
Judgement, para. 146.
305
Case No IT-98-29/1-T 12 December 2007
of the attack. As to the systematic nature of the attacks, the Trial Chamber refers to the evidence of
the organised manner in which trams were sniped during the negotiation of the S-curve on Zmaja
od Bosne and the use of shelling and sniping by the SRK as both a means of retaliation and to
achieve political objectives.
928. In short, the features of the campaign - the 24 proven scheduled incidents of sniping and
shelling, the unscheduled incidents of sniping and shelling, the other evidence pertaining to shelling
and sniping, the large number of persons targeted by the shelling and sniping, the structure and
pattern evident in the shelling and sniping, the clear correlation between conflict in BiH as a whole
and the shelling of Sarajevo by the SRK - provide a classical illustration of a large-scale and
organised attack, that is, a widespread and systematic attack.
(e) Mens Rea
929. The mens rea element of a crime against humanity is fulfilled when the perpetrator has the
requisite intent to commit the underlying offence(s) charged and when he knows both that there is
an attack on the civilian population and that his acts form part of that attack.3116 The perpetrator
need not know the details of the attack nor need he share the purpose or goal behind the attack.3117
Factors such as the perpetrator’s proximity to the area of criminal activity can be applied to infer
knowledge of the crimes.3118 Knowledge of certain events, not necessarily every individual attack,
is sufficient to warrant the conclusion that the perpetrator had notice of the wider context and nature
of the crimes.3119
930. Clearly, in the circumstances of this case, it is proper to infer that the SRK troops, who were
the instruments of the attacks on the civilian population, had the requisite intent to commit the
various offences charged in the Indictment, and that they knew of the attacks on the civilian
population and their acts formed part of those attacks. The circumstances were such that it must
have been obvious to the SRK troops that they were targeting a civilian population.
931. For the crime of murder to be established, it must be shown that a victim died and that the
victim’s death was caused by an act or omission.3120 To satisfy the mens rea for murder it is further
3116 Kordi} and erkez Appeal Judgement, para. 99; Bla{ki} Appeal Judgement, para. 124; Kunarac Appeal Judgement,
paras 99, 102; Tadi} Appeal Judgement, para. 248; Gali} Trial Judgement, para. 140.
3117 Kunarac Appeal Judgement, paras 102, 103; Bla{ki} Appeal Judgement, para. 122; Gali} Trial Judgement, para.
148.
3118 Limaj et al. Appeal Judgement, para. 218; Blagojevi} and Joki} Appeal Judgement, paras 66, 75-76.
3119 Blagojevi} and Joki} Appeal Judgement, para 102.
3120 Gali Appeal Judgement, paras 147 – 149; Kvoka et al. Appeal Judgement, para. 261.
306
Case No IT-98-29/1-T 12 December 2007
required that there was an act or omission, with the intention to kill (animus necandi) or to inflict
grievous bodily harm, in the reasonable knowledge that it might lead to death.3121
932. The Trial Chamber received a great deal of evidence of incidents resulting in death which
qualify as murder. This evidence includes (i) sniping by SRK troops of civilians resulting in
death,3122 and (ii) shelling by SRK troops, resulting in death.3123 An examination of this vast body
of evidence satisfies the Trial Chamber that these were acts carried out by the SRK troops, resulting
in death of civilians, and done with the intent to kill or cause grievous bodily harm.
5. Counts 3 and 6: Inhumane Acts
933. Under Counts 3 and 6 of the Indictment, the Accused is charged with inhumane acts, a
crime against humanity, pursuant to Articles 5(i), 7(1) and 7(3) of the Statute as a consequence of
conducting, as the Commander of the SRK, a co-ordinated and protracted campaign of sniping and
shelling attacks upon the civilian population in Sarajevo and onto civilian areas of Sarajevo, which
killed and wounded a large number of civilians of all ages and both sexes.
934. “Other inhumane acts”, as provided for in Article 5(i) of the Statute, functions as a residual
category for serious crimes that are not otherwise enumerated in Article 5, but which require proof
of the same chapeau elements.3124 The particular elements of the crime of inhumane acts are: (i)
there was an act or omission of similar seriousness to the other acts enumerated in Article 5; (ii) the
act or omission caused serious mental or physical suffering or injury or constituted a serious attack
on human dignity; and (iii) the act or omission was performed intentionally.3125 The Appeals
Chamber in Gali} noted that the Trial Chamber in that case pointed to “numerous acts” that qualify
as “other inhumane acts”, namely, the deliberate sniping and shelling by members of the SRK
forces that inflicted serious injuries on civilians.3126
935. The mens rea for the crime of inhumane acts is satisfied if, at the time of the act or
omission, the perpetrator had the intention to inflict serious physical or mental suffering or to
commit a serious attack upon the human dignity of the victim, or the perpetrator knew that his or
3121 Kvoka et al. Appeal Judgement, para. 261.
3122 See supra, Section II.E.3. Sniping during the Indictment Period.
3123 See supra, Section II.E.6. Shelling during the Indictment Period
3124 Kordi} and erkez Appeals Judgement, para. 117; Marti} Trial Judgement, para. 82; Kayishema and Ruzindana
Trial Judgement, paras 149 – 150.
3125 Vasiljevi} Trial Judgement, para. 234, affirmed in Vasiljevi} Appeals Judgement, para. 165; Gali} Trial Judgement,
para. 152. See also, Kordi} and erkez Appeals Judgement, para. 117; Marti} Trial Judgement, para. 83; Blagojevi}
and Joki} Trial Judgement, para. 626; Krnojelac Trial Judgement, para. 130; Kajelijeli Trial Judgement, paras 932 –
933; Kayishema and Ruzindana Trial Judgement, para. 151.
3126 Gali} Appeal Judgement, para. 158.
307
Case No IT-98-29/1-T 12 December 2007
her act or omission was likely to cause serious physical or mental suffering or a serious attack upon
human dignity.3127
936. The extensive evidence presented of the numerous acts of sniping and shelling of civilians
and civilian areas within the confrontation lines by the SRK includes evidence from witnesses, BiH
police reports, UNPROFOR and UNMO reports, such as daily situation reports, and SRK orders
and reports.3128 That evidence shows that, although there were areas that were understood to be
more dangerous than others, civilians in all areas of Sarajevo were susceptible to being shot or
falling victim to an attack by mortars, other artillery weapons and modified air bombs.3129 The
location of the city within hills and mountains enabled the SRK to shell it without restriction.3130
And, in the words of Martin Bell, the “burden of the bombardment fell on the civilians trapped in
the city.”3131
937. For a period of almost 15 months, civilians, including women, and boys and girls, of varying
ages, were targeted by SRK snipers while at home, while gathering food, water or firewood
necessary for survival, while going to work and while driving trams.3132 Witnesses also described
being at home, involved in daily activities such as talking with neighbours or drinking coffee, at the
moment a shell or bomb exploded on, or in the vicinity of, their houses.3133 Market places, tram
lines and water collection points were targeted with shells.3134 As described in the findings on
Count 1, the victims sustained serious injuries, which had serious physical and psychological
impacts on them.3135
938. On the basis of the evidence it has examined, the Trial Chamber is satisfied that the acts of
sniping and shelling of civilians by the SRK troops caused serious mental or physical suffering to
civilians within the confrontation lines and that they were acts of similar gravity to the other acts
enumerated in Article 5 of the Statute. The Trial Chamber finds that, on the basis of the above
factors, at the time of the acts of sniping and shelling, the members of the SRK who carried out
those acts had the intent to inflict serious physical or mental suffering or to commit a serious attack
upon the human dignity of the victims, or they knew that their acts were likely to cause serious
physical or mental suffering or a serious attack upon human dignity.
3127 Gali} Trial Judgement, para. 154; Blagojevi} and Joki} Trial Judgement, para. 628. See also, Kordi} and erkez
Appeals Judgement, para. 117.
3128 See supra Section II.E. Evidence Pertaining to Alleged “Campaign” in the Indictment Period.
3129 See, e.g., supra, paras. 196 - 498, 211, 217, 227.
3130 See supra paras 417, 138 - 140.
3131 See supra, paras 417, 420, 422; Martin Bell, 27 Apr 2007, T. 5279.
3132 See supra, Section II.E.4 in general, and in particular, paras 208 -211, 214 - 217, 225 - 228, 247 - 250.
3133 See supra, e.g., Sections. II.E.6(b)(iii), (iv), (vi) and (xii)
3134 See supra, Sections II.E.6(b)(ii), (xv) and para 423.
3135 See supra paras 905, 907, 910, 913; Section II.E.7(b), (c).
308
Case No IT-98-29/1-T 12 December 2007
6. Counts 4 and 7: Unlawful Attacks against Civilians
939. Counts 4 and 7 of the Indictment read:
“Unlawful Attacks on Civilians, a Violation of the Laws or Customs of War,
punishable under Article 51 of Additional Protocol I and Article 13 of Additional
Protocol II to the Geneva Conventions of 1949, and Articles 3, 7(1) and 7(3) of
the Statute of the Tribunal.”
The counts allege that the Accused conducted a campaign of sniping and shelling against the
civilian population and civilian areas of Sarajevo, which involved deliberate and/or indiscriminate
targeting of civilians and resulted in over a thousand civilians being killed or injured. Specifically in
relation to shelling, it is alleged that the shelling was excessive and disproportionate to the concrete
and military advantage anticipated.3136
(a) Attack on Civilians
940. Counts 4 and 7 of the Indictment refer to Article 51 of Additional Protocol I and Article 13
of Additional Protocol II to the Geneva Conventions of 1949, which read, in their relevant parts:
“The civilian population as such, as well as individual civilians, shall not be the object of attack.”
941. This general prohibition is well-established in customary international law and is based on
the principles of distinction, precaution and protection.3137 The principle of distinction obliges
warring parties to distinguish at all times between the civilian population and combatants, and
between civilian objects and military objectives and ensure that operations will only be directed
against military objectives.3138 Article 57(2)(a)(ii) of Additional Protocol I requires those who plan
or decide upon an attack to take all feasible precautions in the choice of means and methods of
attack with a view to avoiding, and in any event to minimising, incidental loss of civilian life, injury
to civilians and damage to civilian objects. The principle of protection ensures that the civilian
population and individual civilians enjoy general protection against dangers arising from military
3136 Indictment, paras 24 – 25.
3137 Gali Appeal Judgement para. 119, Kordi and erkez Appeal Judgement, paras 40 – 42; Blaški Appeal
Judgement, para. 109; Prosecutor v. Pavle Strugar et al., IT-02-42-AR72, Decision on Interlocutory Appeal, 22
November 2002, para. 9; Prosecutor v. Dario Kordi and Mario ]erkez, IT-95-14/2-PT, Decision on the Joint Defence
Motion to Dismiss the Amended Indictment for Lack of Jurisdiction Based on the Limited Jurisdictional Reach of
Articles 2 & 3, 2 March 1999, para. 31. See also, Prosecutor v. Enver Had`ihasanovi} et al., IT-01-47-AR73.3,
Decision on Joint Defence Interlocutory Appeal of Trial Chamber Decision on Rule 98bis Motions for Acquittal, 11
March 2005, para. 28.
3138 See Article 48 of Additional Protocol I, which describes the principle of distinction as a basic rule. Additional
Protocol II does not contain a similar provision.
309
Case No IT-98-29/1-T 12 December 2007
operations.3139 Together, these three principles form the foundation of international humanitarian
law.
(b) Actus Reus
942. The actus reus of the crime of unlawful attacks on civilians is acts of violence directed
against the civilian population or individual civilians causing death or serious injury to body or
health within the civilian population.3140
943. Article 49 of Additional Protocol I defines “attacks” as “acts of violence against the
adversary, whether in offence or defence.” An “attack” is a technical term relating to a specific
military operation limited in time and place, and covers attacks carried out both in offence and
defence.3141 The case-law of the Tribunal, in relation to crimes charged under Article 5 of the
Statute, has defined “attack” as a course of conduct involving the commission of acts of
violence.3142 In Gali, the Trial Chamber held that the prohibited conduct set out in Article 51(2) of
Additional Protocol I is to direct an attack, as defined in Article 49 of Additional Protocol I, against
the civilian population and against individual civilians not taking part in hostilities.3143
944. Article 51(2) of Additional Protocol I and Article 13(2) of Additional Protocol II clearly
state that civilians and the civilian population should not be the object of attacks. There is an
unconditional and absolute prohibition on the targeting of civilians in customary international
law.3144 Therefore, any attack directed at the civilian population is prohibited, regardless of the
military motive.
945. The meaning of “civilian” is defined in Article 50(1) of Additional Protocol I, which reads:
“A civilian is any person who does not belong to one of the categories of persons referred to in
Article 4 (A) (1), (2), (3) and (6) of the Third Convention3145 and in Article 43 of this Protocol.3146
In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.”
3139 See Article 51(1) of Additional Protocol I and Article 13(1) of Additional Protocol II.
3140 Gali Trial Judgement, para. 56.
3141 ICRC Commentary, para. 4783, as quoted in Gali Trial Judgement, para. 52.
3142 Kunarac et al. Trial Judgement, para. 415; Krnojelac Trial Judgement, para. 54. See also, Gali Trial Judgement,
para. 52.
3143 Gali Trial Judgement, paras 53 and 56. See also, Gali Appeal Judgement, paras 129-138.
3144 Bla{ki} Appeal Judgement, para. 109; Kordi and erkez Appeal Judgement, para. 54.
3145 Article 4 of Geneva Convention III states: A. Prisoners of war, in the sense of the present Convention, are persons
belonging to the one of the following categories, who have fallen into the power of the enemy:
(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming
part of such armed forces.
(2) Members of other militias and members of other volunteer corps, including those of organized resistance
movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is
occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the
following conditions: (a) that of being commanded by a person responsible for his subordinates; (b) that of having a
fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly;
310
Case No IT-98-29/1-T 12 December 2007
That is, the term “civilian” is defined negatively, to include any person who is not a member of the
armed forces or an organised military group belonging to a party to the conflict.3147 In some
circumstances it may be difficult to ascertain whether a person is a civilian.
946. The generally accepted practice is that combatants distinguish themselves by wearing
uniforms, or, at the least, a distinctive sign, and by carrying their weapons openly.3148 Other factors
that may help determine whether a person is a civilian include his or her clothing, activity, age or
sex.3149 In cases of doubt whether a person is a civilian, that person shall be considered to be a
civilian.3150 As stated in the Commentary on Additional Protocol I, the presumption of civilian
status applies to:
“[p]ersons 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.”3151
947. The protection afforded to individual civilians by Article 51 of Additional Protocol I
continues until such time as civilians take a direct part in hostilities.3152 There is a need to
distinguish between direct participation in hostilities and participation in the war effort.3153 To take
direct part in hostilities means to engage in acts of war which, by their nature or purpose, are likely
to cause actual harm to the personnel or matériel of the enemy armed forces.3154 A civilian who
takes part in armed combat loses his or her immunity and becomes a legitimate target.3155
948. To constitute a violation of the prohibition of attacks against civilians, the attack must be
directed at individual civilians or the civilian population.3156 In this regard, the Appeals Chamber
has held that whether an attack is so directed can be inferred from many factors, including the
(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.
3146 Article 43 (1) of Additional Protocol I states:
The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a
command responsible to that Party for the conduct or its subordinates, even if that Party is represented by a government
or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system
which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.
3147 Gali Trial Judgement, para. 47.
3148 See Article 44 (7) Additional Protocol I; Gali Trial Judgement, para. 50.
3149 Gali Trial Judgement, para. 50.
3150 Article 50(1) of Additional Protocol I.
3151 ICRC Commentary, para. 1920.
3152 Article 51(3) of Additional Protocol I. See also, Article 13(3) of Additional Protocol II.
3153 ICRC Commentary, para. 1945.
3154 ICRC Commentary, para. 1944.
3155 ICRC Commentary, para. 1944.
3156 Gali Appeal Judgement, paras 132, 133; Gali Trial Judgement, paras 57, 60.
311
Case No IT-98-29/1-T 12 December 2007
means and method used in the course of the attack, the status and number of the victims, the nature
of the crimes committed, the extent to which the attacking force may be said to have complied or
attempted to comply with the precautionary requirements of the laws of war and the indiscriminate
nature of the weapon used.3157
949. The parties to a conflict are under an obligation to remove civilians, to the maximum extent
feasible, from the vicinity of military objectives and to avoid locating military objectives within or
near densely-populated areas.3158 However, the failure of a party to abide by this obligation does not
relieve the attacking side of its duty to abide by the principles of distinction and proportionality
when launching an attack.3159
950. The unlawful attack must have resulted in death or serious injury to body or health within
the civilian population.3160
(c) Mens Rea
951. The Prosecution must establish that the Accused wilfully made the civilian population or
individual civilians the object of acts of violence.3161 Article 85 of Additional Protocol I describes
the intent required for the application of the first part of Article 51(2). It qualifies as a grave breach
the act of wilfully “making the civilian population or individual civilians the object of attack”.3162
According to the Commentary on Article 85 of Additional Protocol I, the term “wilfully”:
“wilfully: the accused must have acted consciously and with the intent, i.e., with his mind on the
act and its consequences, and willing them (“criminal intent” or “malice aforethought”); this
encompasses the concepts of “wrongful intent” or “recklessness”, viz., the attitude of an agent
who, without being certain of a particular result, accepts the possibility of it happening; on the
other hand, ordinary negligence or lack of foresight is not covered, i.e., where a man acts without
having his mind on the act or its consequences.”3163
As confirmed by the Gali Appeals Chamber, the notion of “wilfully” incorporates the concept of
recklessness, whilst mere negligence is excluded.3164
952. In order to establish the mens rea for the offence, it must be shown that the perpetrator was
aware or should have been aware of the civilian status of the persons attacked. In cases of doubt, the
3157 Gali Appeal Judgement, para. 132. See also, Kunarac et al. Appeal Judgement, para. 91; Blaški Appeal
Judgement, para. 106.
3158 See Article 58 of Additional Protocol I.
3159 Gali Appeal Judgement, para. 133, confirming Gali Trial Judgement, para. 60.
3160 Bla{ki} Trial Judgement, para. 180; Kordi} and erkez Trial Judgement, para. 328, confirmed in Kordi Appeal
Judgement, paras 57, 67; Gali Trial Judgement, para. 43.
3161 Gali Trial Judgement, para. 56, approved in Gali Appeal Judgement, para. 140.
3162 Article 85 (3) of Additional Protocol I.
3163 ICRC Commentary, para. 3474, Gali Appeal Judgement para. 140, confirming Gali Trial Judgement, para. 54.
3164 Gali Appeal Judgement para. 140, confirming Gali Trial Judgement, para. 54.
312
Case No IT-98-29/1-T 12 December 2007
Prosecution must show that, in the given circumstances, a reasonable person could not have
believed that the individual he or she attacked was a combatant.3165
953. The Trial Chamber recalls its finding that the crime of terror shares the same elements with
the crime of unlawful attacks against civilians, except for the additional requirement that to
constitute terror it must be established that the acts were committed with the primary purpose of
spreading terror among the civilian population. It follows, therefore, that the acts which the Trial
Chamber found to have constituted terror must a fortiori also constitute unlawful attacks against
civilians and civilian population, and the Trial Chamber so finds.
B. Individual Criminal Liability of the Accused
954. All the counts charge the Accused with responsibility under Article 7(1) and 7(3) of the
Statute. Article 7(1) of the Statute provides:
“A person who planned, instigated, ordered, committed or otherwise aided and abetted in the
planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute,
shall be individually responsible for the crime.”
The Accused is charged with planning, ordering, or in the alternative, aiding and abetting the
crimes.
955. In order to establish individual criminal responsibility for planning, ordering or aiding and
abetting of a crime, proof is required that the crime in question has actually been committed by the
principal perpetrator(s) (“the underlying crime”).3166 If the underlying crime has been established,
the Trial Chamber will assess the individual criminal responsibility of the Accused for that crime.
956. Planning is established when it is proven that one or more persons contemplated the
commission of one or more crimes provided for in the Statute, which were later perpetrated.3167 If a
person is convicted of having committed a crime, his involvement in the planning of the crime can
only be considered as an aggravating factor.3168
957. Ordering requires that a person in a position of authority, whether de jure or de facto,
instructs another person to commit a crime.3169 This authority may be proved expressly or may be
reasonably implied from the evidence.3170
3165 Gali Trial Judgement, para. 55.
3166 See Br|anin Trial Judgement, para. 267, with further references.
3167 Kordi} and ^erkez Appeal Judgement, para. 26.
3168 Kordi} and ^erkez Trial Judgement, para. 386; Staki} Trial Judgement, para. 443.
3169 Kordi} and ^erkez Appeal Judgement, para. 28; Gacumbitsi Appeal Judgement, para. 182; Br|anin Trial
Judgement, para. 270.
313
Case No IT-98-29/1-T 12 December 2007
958. The mens rea for the modes of liability of planning and ordering requires that the perpetrator
must have acted or omitted to act with direct intent or indirect intent in relation to their own
planning or ordering.3171 In the latter instance of indirect intent, a perpetrator who orders or plans an
act or omission with an awareness of the substantial likelihood that a crime will be committed in the
execution of the order or plan has the requisite mens rea for establishing responsibility under
Article 7(1) in relation to ordering or planning. Planning or ordering with such awareness has to be
regarded as accepting that crime.3172
1. Findings on Planning and Ordering
959. It was not in dispute that the Accused was the de jure commander of the SRK during the
Indictment period. The evidence showed that, at least as far as the theatre of Sarajevo was
concerned, the Accused was in command over the SRK troops. The evidence further showed that he
held a “tight chain of command” within the SRK. According to Maj. Stevan Veljovi}, testifying for
the Defence, the SRK operations centre verified whether orders were carried out. There was a
strong reporting chain in place. Evidence in the form of orders and requests showed that the
Accused was actively engaged in a number of matters, including the levels of ammunition and the
selection of individual members of the SRK for sniper training. In addition, several Defence
witnesses confirmed that the Accused was highly respected by his subordinates, who were very
disciplined and followed his orders.3173
960. There is evidence that the Accused did not devise a strategy for Sarajevo on his own.
Clearly, the Main Staff of the VRS and Gen. Mladi} were also involved in decisions as to the
military strategy of the VRS and the SRK. However, the evidence shows that the Accused was able
to implement the greater strategy in a manner he saw fit. The evidence also shows that the Accused
decided on the deployment of weapons, for example, on the placement of artillery batteries and
movement of modified air bomb launchers.
961. There is an abundance of evidence that the Accused acted in furtherance of orders by the
VRS Main Staff, for example, with respect to orders pertaining to UNPROFOR. Within his
authority as Commander of the SRK, the Accused issued orders that prohibited attacks against
UNPROFOR, but also ordered attacks on UNPROFOR. Whether those orders to attack
UNPROFOR were the result of a revised strategy by the Main Staff is immaterial. The Accused
relayed those orders to his own troops.
3170 Br|anin Trial Judgement, para. 270; Limaj et al. Trial Judgement, para. 515.
3171 Kordi} and ^erkez Appeal Judgement, paras 29 – 32.
314
Case No IT-98-29/1-T 12 December 2007
962. The evidence indicated quite clearly that the Accused was in charge of sniping activities and
the only reasonable inference to be drawn is that he planned and ordered those activities. For
example, one of the first actions taken by the Accused, when he became Commander of the SRK,
was to sign the Anti-sniping Agreement of 14 August 1994. He had been involved in the
negotiations of this agreement prior to being appointed SRK Commander. The evidence
demonstrated that this agreement was implemented to some extent. The fact that sniping occurred
over an extended period of time in different areas of Sarajevo on territory under the control of
different SRK brigades, shows, in the Trial Chamber’s view, that the operation of snipers was coordinated
at the SRK command level, that is, by the Accused. In addition, the Trial Chamber recalls
the evidence that the Accused issued numerous orders relating to training, equipment and the
deployment of snipers. Although the Trial Chamber was not presented with any written order of the
Accused unequivocally ordering the sniping of civilians, the evidence shows that SRK snipers did
not operate in a random manner, and the Trial Chamber is satisfied that the entire sniping campaign
was under the control of the Accused. Other examples of planning and ordering by the Accused are
an order to stop sniping, and an order for combat readiness and to draw up a firing plan onto the Old
Town.
963. Many orders of the Accused, in which he decided on the placement of mortars and in which
he specified the areas these mortars were to engage, show that within the SRK, it was the Accused
who decided on the use of mortars and the methods of shelling.
964. There are several orders in evidence, in which the Accused requested air bombs, sometimes
in large numbers, or in which he ordered that precise quantities of air bombs be issued to various
SRK brigades. He also ordered the construction of launchers of modified air bombs.3174 The
Accused stated in a report that air bomb launchers “are used throughout the SRK zone of
responsibility as required and as decided by the SRK commander.”3175 There is abundant evidence
of the Accused planning and ordering the shelling of civilian areas, including, in particular, the TV
Building and the shelling of Hrasnica on 7 April 1995.3176
965. There is also evidence of ordering and planning by the Accused that calls for special
attention. On the one hand, there is an abundance of evidence of a campaign of sniping and shelling
3172 Kordi} and ^erkez Appeal Judgement, paras 29 – 32. The Trial Chamber notes that the Appeals Chamber has not
identified this element for the mode of liability of “committing”.
3173 See supra, paras 801 - 804 and Section II.F(a).
3174 P722, Request by the SRK Commander, 17 July 1995. See also, P767, Request for ammunition, dated 22 June
1995; P768, Order issuing SRK units with air bombs, 24 August 1995; P714, Requisition of 50 air bombs, 4 June 1995:
FAB-105 and FAB-250 were to be issued to the Rajlovac Infantry Brigade, to the Ilijaš Infantry Brigade, to the Ilid`a
Infantry Brigade, the Igman Infantry Brigade and to the 3rd Sarajevo Infantry Brigade and to the SRK reserve.
3175 P663, Report from SRK command, 15 June 1995.
3176 See supra, Section II.E.6(b) (iii) and (xi).
315
Case No IT-98-29/1-T 12 December 2007
carried out consistently throughout the Indictment period by the SRK forces of which the Accused
was the commander. On the other hand, some evidence has been presented that on a number of
occasions during his visits to the troops, the Accused instructed his men on the confrontation line to
abide by the Geneva Conventions and not to shoot at civilians. On one particular occasion, on 1
October 1995, he issued an order not to shoot at civilians. In addition, there is also evidence that
there were instructions to adhere to the COHA.3177 The issue is the impact of the latter three pieces
of evidence on a finding by the Trial Chamber that the Accused ordered and planned the crimes
charged; in particular, does that evidence contradict a finding of having ordered and planned? In
approaching this question, the Trial Chamber must have regard to the burden that is placed on the
Prosecution to establish the charges beyond reasonable doubt.
966. The Trial Chamber considers that it must examine the evidence of the two sets of
circumstances as a whole and ask itself whether, at the end of the day, it is satisfied beyond
reasonable doubt that the Accused planned and ordered the campaign. In doing so, the Trial
Chamber must determine what weight is to be attached to the various items of evidence. It
disregards the evidence that, in October 1995, the Accused issued an order prohibiting sniping,
because that order was issued virtually at the end of the conflict. It is observed that the last incident
charged in the Indictment occurred on 28 August 1995 and the Dayton Accords were signed a
month later. The Trial Chamber does not disregard the evidence that the Accused, on certain
occasions, instructed his soldiers to abide by the Geneva Conventions and not to shoot civilians or
that there were instructions to adhere to the COHA. However, an examination of the evidence in its
totality obliges the Trial Chamber to look at the vast body of evidence as to the campaign of
shelling and sniping. When the Trial Chamber does that, it sees a design, a consistency and a
pattern that is only explicable on the basis of a system characterised by a tight command and
control. The evidence shows that the Accused was in command and control of his troops, who
carried out this campaign of sniping and shelling. The Trial Chamber need only mention the order
to shell Hrasnica with a modified air bomb and his acknowledgement of success of the SRK troops
in shelling the TV Building.3178 The Trial Chamber is convinced that, notwithstanding the evidence
of the above-mentioned instructions and orders, the campaign was such that not only must it have
had the consent of the Accused, but it must also have been carried out on his instructions and
orders.
967. As far as the crime of terror is concerned, the Trial Chamber recalls that the Prosecution
must prove that the Accused had a specific intent to spread terror among a civilian population.3179
3177 See supra, paras 837 - 840.
3178 See supra, Sections II.E.6(b)(iii) and (xi)
3179 See supra, Section III.A.2(b) The Crime of Terror.
316
Case No IT-98-29/1-T 12 December 2007
The Trial Chamber recalls its finding that the members of the SRK acted with the specific intent to
spread terror. With regard to the intent of the Accused, the Trial Chamber notes the prolonged
period over which the civilian population of Sarajevo was under attack. The evidence led in this
case shows that the civilian population of Sarajevo had been subjected to shelling and sniping under
the command of Gen. Gali for about 24 months. The widespread nature of these crimes must have
put the Accused on notice about the involvement of SRK troops in these crimes and the effects of
these crimes on the civilians inside the confrontation lines. When he became SRK Commander, the
Accused knew that the continuation of sniping and shelling under his command would further
increase the suffering and despair of the civilian population. Nevertheless, he continued the sniping
and shelling of civilians and civilian area over a period of another 15 months.
968. In Gen. Rupert Smith’s view, the shelling and sniping of civilian areas and civilians in
Sarajevo was “essentially to terrorise, to wear down the resolve of the defender, to hold the
presence of the Serb pressure evidently in the minds of people on a daily basis.” His evidence was
supported by other witnesses who were deployed with UNPROFOR in Sarajevo during the
Indictment period. One witness described the SRK activities under the command of the Accused as
“more subtle”, “more precise” and “more dangerous” than during the time of Gen. Gali.3180
969. As the evidence showed, trams and buses were a particular focus of the sniping activity
during the Indictment period. Trams and buses only ran during cease-fires. The Accused must have
known that the resumption of public transport was an encouraging sign for the civilian population in
Sarajevo, and he also knew that targeting of trams and buses would have a particularly devastating
psychological effect.
970. The use of the modified air bombs is another clear indication of the Accused’s intent to
spread terror. The highly destructive force and the psychological effects these bombs had on the
civilian population were obvious to anyone. The decision by the Accused to use modified air bombs
against civilian targets can, therefore, only be interpreted as demonstrating the intent to spread
terror.
971. The evidence shows that the shelling was indiscriminate, and aimed at causing the
maximum amount of casualties.3181 In addition, there was sometimes a delay between the first and
later shells, which, according to witnesses, was to terrorise the civilian population, because they
could never be sure when the shelling would stop.
3180 Ismet Hadži, 6 Mar 2007, T. 3236, 3260.
3181 See supra, paras 905, 907.
317
Case No IT-98-29/1-T 12 December 2007
(a) Defence of “Alibi”
972. Evidence was presented to the Trial Chamber indicating that at the beginning of August
1995, the Accused left Sarajevo for Belgrade, where he received treatment for an injury to his right
eye. He was discharged from hospital on 21 August 1995 and he returned to Sarajevo in early
September 1995.3182 At the time when the shelling of the Markale Market took place, on 28 August
1995, the Accused was, therefore, not present in the area of Sarajevo.
973. The Defence, for the period from 6 August to 10 September 1995, “enters the defence of
alibi since in the relevant period he was not on the sites where the crimes he is charged with in the
Indictment were committed and since all the command responsibilities in the Sarajevo Romanija
Corps were taken over by Mr ^edo Sladoje.”3183 In its closing arguments, the Defence submitted
that, as the Accused “was unable to carry out that duty de facto at the time, he cannot be held
responsible ….”3184
974. The Prosecution, in its Final Brief, dismissed “the claim by the Defence” that the Accused
was not responsible for the Markale Market II incident, arguing:
“The massacre of 28 August 1995 was the result of the continued operation of a campaign that the
Accused commanded for a long time before he left for Belgrade. That this terror campaign
continued in the absence of the Accused is not exculpatory of the Accused; to the contrary it is
inculpatory, as it shows what a thorough job the Accused had done of integrating the terror
campaign into the SRK’s operations.”3185
975. The Indictment against the Accused is typical of the indictments laid by the Prosecution in
leadership cases in this Tribunal. The essence of those cases is that the accused, who is in a position
of leadership, planned and ordered the commission of the crime. Those cases do not proceed on the
basis that, to employ the phrase used by the Appeals Chamber in Gali}, the Accused “personally,
physically” committed the crimes.3186 There is an abundance of evidence in this case showing that
the Accused not only planned and ordered the campaign of sniping and shelling, but also that this
campaign was characterised by a degree of consistency and pattern which was only achievable
under the leadership of a person who was in full control of the SRK troops. The Trial Chamber has
already examined evidence that shows that the Accused held a tight chain of command. In such a
situation, therefore, the mere absence of the Accused from the site of the execution of the crimes
and the fact that his responsibilities had been taken over by the SRK Chief of Staff ^edomir Sladoje
3182 See supra para. 830.
3183 Defence Pre-Trial Brief, 27 February 2006, para. 10.
3184 Defence Closing Arguments, 10 Oct 2007, T. 9546, 9564 – 9565.
3185 Prosecution Closing Brief, para. 470. See also, Prosecution Closing Arguments, 9 Oct 2007, T. 9434, 9436 – 9437;
Defence Closing Arguments, 10 Oct 2007, T. 9559.
3186 Prosecutor v Stanislav Gali}, Case No. IT-98-29-AR-73.2, “Appeals Chamber Decision on Interlocutory Appeal
concerning Rule 92 bis (C)”, dated 7 June 2002, para. 10(a).
318
Case No IT-98-29/1-T 12 December 2007
would not relieve him of responsibility, if the Trial Chamber is otherwise satisfied that the crimes
that took place in his absence formed part of the campaign of sniping and shelling that he had
planned and ordered.
976. The Trial Chamber observes that his period of absence from Sarajevo was not very long. It
was not three months or six months; it was, in fact, only five weeks. When that factor is placed
alongside the finding that the shelling and sniping that took place in that period fell squarely within
the overall pattern of the campaign, the Trial Chamber is in a position to infer that those activities
were planned and ordered by the Accused.
977. The Trial Chamber also notes that the short period of the Accused’s absence falls in the
latter part of his tenure as SRK Commander. By the summer of 1995, the shelling and sniping was
already being conducted on the orders of the Accused for approximately one year. The evidence
further shows that there was an increase in the level of fighting in March and April 1995 and from
June 1995 onwards, as a result of ABiH offensives. The response of the Accused to those offensives
was to shell civilian areas within the confrontation lines. During the Accused’s absence in August
and at the beginning of September 1995, the shelling and sniping of civilian areas continued in the
same manner as before. The Trial Chamber finds that the ongoing shelling of civilian areas in
August and early September 1995 falls squarely within the overall plan and and general orders of
the Accused and, accordingly, dismisses the defence of alibi.
(b) Conclusions
978. The Trial Chamber has no doubt that the orders by the Accused to target civilians in
Sarajevo formed part of a strategy, a plan, to continue the shelling and sniping of civilians in
Sarajevo which commenced under the Accused’s predecessor Gen. Gali. The scheduled and
unscheduled incidents are not single incidents or sporadic occurrences; rather, they fit in a pattern
of shelling and sniping contemplated and implemented by the Accused during his tenure as
Commander of the SRK. The Trial Chamber cannot but conclude that the Accused intended to plan
and order the shelling and sniping of civilians and civilian areas of Sarajevo. The Trial Chamber is
also satisfied that the Accused ordered and planned the shelling and sniping of the civilian
population and individual civilians in Sarajevo with the intent to spread terror among that
population.
979. On the basis of the analysis of the evidence, the Trial Chamber finds that the Accused
ordered and planned terror, as charged under Count 1, ordered and planned murder as charged
under Counts 2 and 5, ordered and planned inhumane acts, as charged under Counts 3 and 6, and
319
Case No IT-98-29/1-T 12 December 2007
unlawful attacks against civilians, as charged under Counts 4 and 7. This finding makes it
unnecessary to consider aiding and abetting.
980. The incidents that the Trial Chamber has found not to be proven do not in any way affect its
findings on the responsibility of the Accused for the crimes charged in the Indictment.
981. In light of the finding that the Accused ordered and planned terror, the Trial Chamber will
not enter a conviction for the crime of unlawful attacks against civilians, as charged under Counts 4
and 7 of the Indictment.
2. Has the Prosecution Charged the Individual Criminal Responsibility of the Accused under
Article 7(3) of the Statute as an Alternative to his Liability under Article 7(1) of the Statute?
982. Paragraph 21 of the Indictment provides that pursuant to Article 7(3) of the Statute,
“Dragomir Milo{evi} is also criminally responsible for the crimes in this Indictment ….” This
would seem to indicate that the charge under Article 7(3) is not an alternative to liability under
Article 7(1), but is in addition to that liability. Counts 1 to 7 all charge the Accused with
responsibility for the crimes, punishable under, inter alia, Articles 7(1) and 7(3) of the Statute,
indicating that the Accused is charged under both Article 7(1) and 7(3).
983. However, paragraph 448 of the Prosecution’s Closing Brief states that the Accused is
criminally responsible under Article 7(1) “and, also in the alternative, even though Gen. Milo{evi}
was in effective control of the SRK and knew of the crimes being committed, he did not take
reasonable and necessary steps either to prevent the crimes or punish those who committed them,
which makes him guilty under Article 7(3) of the Statute.” Paragraph 537 of the Prosecution’s
Closing Brief also states that, “in the alternative, Gen. Milo{evi} is criminally responsible under
7(3) of the Statute.” The Closing Brief would, therefore, seem to make clear that the Accused is
charged under Article 7(1), and alternatively under Article 7(3). The Prosecution’s Closing
Arguments also refer to Article 7(3) in the alternative to Article 7(1).3187
984. There is a conflict between the Indictment, on the one hand, and the Prosecution’s Closing
Brief and Closing Arguments on the other, as to whether the Accused is charged under Article 7(3)
alternatively to, or in addition to, Article 7(1). However, in light of the finding of guilt under Article
3187 Prosecution Closing Arguments, 9 Oct 2007, T. 9424.
320
Case No IT-98-29/1-T 12 December 2007
7(1), it is not necessary to consider the Accused’s responsibility under Article 7(3) of the
Statute.3188
IV. SENTENCING
985. The Trial Chamber found the Accused guilty of planning and ordering the crimes of terror,
under Count 1, murder, under Counts 2 and 4 and inhumane acts, under Count 3 and 5. For a
determination of a sentence, the Trial Chamber must examine the applicable law on this matter.
986. The relevant provisions concerning sentencing are set out in Article 24 of the Statute and
Rule 101 of the Rules. These provisions set forth factors to be taken into consideration by a Trial
Chamber when it is determining a sentence.3189
987. The case-law of the Tribunal has consistently held that the main purposes of sentencing for
crimes within the jurisdiction of the Tribunal are deterrence and retribution.3190 In addition, a third
purpose of sentencing is rehabilitation which, while it may be considered a relevant factor, “is not
one which should be given undue weight”.3191
988. The Trial Chamber observes that in Gali}, the Appeals Chamber overturned Gen. Gali}’s
sentence of 20 years and increased it to a term of life imprisonment. This Trial Chamber does not
construe that decision as restricting the exercise of its discretion in the sentence to be imposed in
this case; that decision relates to a different accused in a different set of circumstances, and the
paramount consideration in sentencing is that the sentence must fit the individual circumstances of
the convicted person.
1. Gravity and Individual Circumstances of the Convicted Person
989. Article 24(2) of the Statute provides that in imposing sentences, Trial Chambers should take
into account such factors as the gravity of the offence and the individual circumstances of the
convicted person. The Appeals Chamber has held that the gravity of the offence is a primary
consideration in imposing a sentence.3192 There is no hierarchy of crimes within the jurisdiction of
3188 Blaški Appeal Judgement, para. 91; Kršti Trial Judgement, paras 605, 652, endorsed by Appeals Chamber in
Kršti Appeal Judgement, fn. 250; Kordi and erkez Appeal Judgement, para. 34; Kvoka et al. Appeal Judgement,
para. 104; Kajelijeli Appeal Judgement, paras 81, 82; Naletili and Martinovi Appeal Judgement, para. 368.
3189 Krsti Appeal Judgement, paras 241 – 242; Jelisi Appeal Judgement, para. 101; elebii Appeal Judgement, paras
715, 717, 718, 780. See also, Kambanda Appeal Judgement, para. 124; Furundžija Appeal Judgement, para. 238;
Marti} Trial Judgement, para. 481.
3190 elebii Appeal Judgement, para. 806; Aleksovski Appeal Judgement, para. 185. See also, Furund‘ija, Trial
Judgement, para. 288; Tadi} Sentencing Trial Judgement, paras 7 – 9; Zelenovi} Sentencing Trial Judgement, para. 31.
3191 elebii Appeal Judgement, para. 806. See also, Deronji Sentencing Appeal Judgement, paras 135 – 137; Staki
Appeal Judgement, para 402.
3192 Blaski Appeal Judgement, para. 683; elebii Appeal Judgement, para. 731; Kupreški et al. Appeal Judgement,
para. 442. See also, Aleksovski Appeal Judgement, para. 182; Marti} Trial Judgement, para. 485.
321
Case No IT-98-29/1-T 12 December 2007
the Tribunal.3193 Sentences must reflect the inherent gravity or totality of the criminal conduct of the
accused, requiring a consideration of the particular circumstances of the case, as well as the form
and degree of the participation of the accused in the crime.3194
990. The Appeals Chamber has also held that the consequences of the crime upon the victims
directly injured, namely the extent of the long-term physical, psychological and emotional suffering
of the victim, is always relevant to sentencing.3195 Further factors, such as the effects of the crime
on relatives of the immediate victims, may also be considered.3196
991. The Accused is convicted of planning and ordering the crimes of terror, murder and
inhumane acts. All of these crimes are very serious and were committed during a campaign of
sniping and shelling over a period of 14 months. The civilian population in Sarajevo was virtually
completely encircled and had only limited possibilities of leaving the city, so as to remove
themselves from the hazardous and threatening circumstances. In effect, the civilian population was
trapped inside the confrontation lines and the Trial Chamber has, in fact, found that Sarajevo was
besieged. The behaviour of the SRK troops was characterised by indiscriminate shelling of civilian
areas and sniping of civilians and civilian objects in the besieged city. As a result of the sniping and
shelling, many civilians in Sarajevo were killed or seriously injured.
992. The crime of terror is a specific crime, with an intent that is particularly indicative of a
disregard for human life and integrity. The acts of the SRK troops were geared to striking persons at
the very core of their being, by instilling a sense of insecurity and fear that affected every aspect of
their lives. The civilians in Sarajevo were subjected to acts of violence that were aimed at depriving
them of any sense of security. The evidence shows that they suffered immensely as a result of the
campaign of sniping and shelling.
993. The evidence also shows that the SRK succeeded in spreading the terror it intended to cause.
The resulting suffering of the civilian population is an element of the crime of inhumane acts and is
relevant for an assessment of the gravity of the crimes. As described by many witnesses, there was
no safe place to be found in Sarajevo; one could be killed or injured anywhere and anytime. W-107
stated that her daughters often returned from collecting water or firewood and “I would find that
they had soiled their clothes because of the fear that they had.”3197 Another witness described how
3193 Staki Appeal Judgement, para. 375.
3194 Gali} Appeal Judgement, para. 409; Blaški Appeal Judgement, para. 683, citing Furund`ija Appeal Judgement,
para. 249. See also, Èelebiæi Appeal Judgement paras 731, 769; Staki Trial Judgement, para. 903.
3195 Blaški Appeal Judgement, para. 683; Krnojelac Trial Judgement, para. 512. See also, Zelenovi} Sentencing Trial
Judgement, para. 38; eši Sentencing Trial Judgement, para. 32; Babi Sentencing Trial Judgement, para. 47.
3196 Blaški Appeal Judgement, para. 683; Krnojelac Appeal Judgement, para. 260. See also, elebii Trial Judgement,
para. 1226.
3197 D116, Statement by W-107, p. 5 (under seal).
322
Case No IT-98-29/1-T 12 December 2007
the civilians in Sarajevo lived under “the constant threat of death.”3198 The terror and suffering that
was caused in this case left the victims with physical and mental scars that even twelve years later
have not disappeared; it is very likely that these scars will never disappear.
994. By planning and ordering the crimes of terror, murder and inhumane acts, the Accused made
the entire civilian population of Sarajevo the direct target of countless acts of violence, and acted in
direct breach of the basic principles of international humanitarian law.
2. Aggravating and Mitigating Factors
995. The Statute and the Rules require the Trial Chamber to take into account both aggravating
and mitigating circumstances when imposing a sentence.3199 Factors which a Trial Chamber takes
into account as aspects of the gravity of the crime cannot additionally be taken into account as
separate aggravating circumstances, and vice versa.3200
(a) Aggravating Circumstances
996. Aggravating circumstances must be proved by the Prosecution beyond reasonable doubt.3201
Such factors include: (i) the position of the accused, that is, his position of leadership, his level in
the command structure, or his role in the broader context of the conflict of the former
Yugoslavia;3202 (ii) the length of time during which the crime continued;3203 (iii) active and direct
criminal participation, if linked to a high-rank position of command,3204 and the active participation
of a superior in the criminal acts of subordinates;3205 (iv) premeditation and motive;3206 (v) the
violent, and humiliating nature of the acts and the vulnerability of the victims;3207 (vi) the status of
3198 W-57, P539, p. 4 (under seal).
3199 See supra, Article 24 of the Statute and Rule 101 of the Rules; elebii Appeal Judgement, para. 717.
3200 Deronji Sentencing Appeal Judgement, para. 106, citing Krnojelac Trial Judgement, para. 517; Plav{i} Sentencing
Trial Judgement, para. 58; Banovi} Sentencing Trial Judgement, para. 53. See also, Momir Nikoli Sentencing Appeal
Judgement, para. 58.
3201 Bla{ki Appeal Judgement, para. 686, citing elebii Appeal Judgement, para. 763.
3202 Blagojevi} and Joki} Appeal Judgement, para. 324; Gali} Appeal Judgement, para. 412; Bla{ki Appeal Judgement,
para. 686, citing Joki} Sentencing Trial Judgement, paras 61 – 62. The Appeals Chamber in Staki noted that “in
considering the superior position in connection with Article 7(1), the Appeals Chamber recalls that it is settled in the
jurisprudence of the Tribunal that superior position itself does not constitute an aggravating factor. Rather it is the abuse
of such position which may be considered an aggravating factor,” Staki Appeal Judgement, para. 411, citing
Kayishema and Ruzindana Appeal Judgement, paras 358 – 359.
3203 Bla{ki Appeal Judgement, para. 686, referring to Kunarac et al. Appeal Judgement, para. 356; Todorovi
Sentencing Trial Judgement, para. 65.
3204 Bla{ki Appeal Judgement, para. 686, referring to Krsti Trial Judgement, para. 708.
3205 Bla{ki Appeal Judgement, para. 686, referring to elebii Appeal Judgement, paras 736 – 737.
3206 Bla{ki Appeal Judgement, para. 686, referring to Krsti Trial Judgement, paras 711 – 712. See also, Krsti} Appeal
Judgement, para. 258.
3207 Bla{ki Appeal Judgement, para. 686, referring to Kunarac et al. Trial Judgement, para. 867; Kunarac et al. Appeal
Judgement, para. 352. See also, Zelenovi} Sentencing Trial Judgement, para. 39.
323
Case No IT-98-29/1-T 12 December 2007
the victims, their age and number, and the effect of the crimes on them;3208 (vii) the character of the
accused;3209
and (viii) the circumstances of the offences generally.3210
997. The Prosecution submitted that the physical and psychological suffering of the victims and
the Accused’s position of authority should be taken into consideration as aggravating
circumstances. The Defence did not respond to the Prosecution’s submissions.
998. On the basis of the evidence the Trial Chamber takes into consideration the following
circumstances as aggravating the culpability of the Accused.
999. First, the Accused was the Commander of the SRK, the corps that conducted a protracted
campaign of sniping and shelling of civilians, civilian areas and the civilian population of Sarajevo.
The Accused was a career officer and served as the Chief of Staff of the SRK before becoming its
commander. As corps commander, he held one of the highest positions within the VRS, and was
directly subordinated to the highest organ of the VRS, the Main Staff. The evidence showed that the
Accused was highly respected by the officers and soldiers of the SRK. The Accused had a special
responsibility to uphold the standards of international humanitarian law. The Trial Chamber
considers that the Accused’s position as commander of the SRK obligated him to prevent the
commission of crimes and to ensure that the troops under his command conducted themselves with
respect for international humanitarian law. However, the evidence presented to the Trial Chamber
shows that the Accused abused his position and that he, through his orders, planned and ordered
gross and systematic violations of international humanitarian law.
1000. Second, the Accused willingly continued the campaign for over a year. By his planning and
ordering the continuation of the sniping and shelling of civilians and civilian areas, he played a very
active role in the commission of the crimes.
1001. Moreover, the Accused introduced to the Sarajevo theatre, and made regular use of, a highly
inaccurate weapon with great explosive power: the modified air bomb. It is plain from the evidence
that the indiscriminate nature of these weapons was known within the SRK. The modified air
bombs could only be directed at a general area, making it impossible to predict where they would
strike. Each time a modified air bomb was launched, the Accused was playing with the lives of the
civilians in Sarajevo. The psychological effect of these bombs was tremendous. As one witness
testified, referring to the modified air bombing in Sokolovi}i, the inhabitants of that settlement
“could have coped” with the sniping and shelling of the neighbourhood “until the air bomb landed
3208 Bla{ki Appeal Judgement, para. 686, referring to Kunarac et al. Trial Judgement, paras 864, 866; Kunarac et al.
Appeal Judgement, para. 355. See also, Zelenovi} Sentencing Trial Judgement, para. 40.
3209 Bla{ki Appeal Judgement, para. 686, referring to elebii Appeal Judgement, para. 788.
324
Case No IT-98-29/1-T 12 December 2007
on 23 July 1995.”3211 The repeated use of the blatantly inaccurate modified air bombs is an
aggravating factor.
(b) Mitigating Circumstances
1002. Mitigating factors have to be proven “on a balance of probabilities”, that is, “the
circumstance in question must have existed ‘more probably than not’.”3212 Factors to be taken into
account may include the following: (i) an expression of remorse;3213
(ii) voluntary surrender;3214
(iii)
good character with no prior criminal convictions;3215
(iv) comportment in detention;3216
(v)
personal and family circumstances;3217 (vi) the character of the accused subsequent to the
conflict;3218 and (vii) age.3219
With regard to the method for calculating the impact on a sentence of
mitigating circumstances, the Appeals Chamber has held that, “any modification of sentence needs
to be assessed in light of all the circumstances of the case and cannot be limited to a simple
mathematical diminution of sentence otherwise to be imposed.”3220
1003. The Prosecution submitted that there were no circumstances “that mitigate the culpability of
the Accused.” The Defence did not put forward any submissions as to mitigating circumstances that
the Trial Chamber should consider. The Trial Chamber will take into account the following factors
in mitigation of the sentence that is to be imposed: the Accused voluntarily surrendered to the
authorities of Serbia and Montenegro before being transferred to The Hague; David Fraser’s
evidence that the Accused appeared to be “somewhat troubled by what he was doing”; Col.
Dragi~evi}’s evidence that the Accused was an “altruist” and Maj. Veljovi}’s testimony that the
Accused was a “man of high moral values”; the negotiation and signing of the Anti-sniping
Agreement by the Accused; and the orders issued by the Accused not to shoot civilians and to abide
by the Geneva Conventions.
3210 Bla{ki Appeal Judgement, para. 686, referring to Tadi Sentencing Trial Judgement, para. 19.
3211 See supra, Section II.E.6(b)(xiii).
3212 Babi Sentencing Appeal Judgement, para. 43. See also, Gali} Appeal Judgement, para. 414; Bralo Appeal
Sentencing Trial Judgement, paras 56, 62 – 63.
3213 Bla{ki Appeal Judgement, para. 696, referring to Joki} Sentencing Trial Judgement, para. 89; Erdemovi Second
Sentencing Trial Judgement, para. 16(iii).
3214 Gali} Appeal Judgement, para. 426. See also, Bla{ki Appeal Judgement, para. 686, referring to Joki} Sentencing
Trial Judgement, para. 73.
3215 Bla{ki Appeal Judgement, para. 696, referring to Erdemovi Second Sentencing Trial Judgement, para. 16(i);
Kupreški et al. Appeal Judgement, para. 459.
3216 Bla{ki Appeal Judgement, para. 696, referring to Joki} Sentencing Trial Judgement, para. 100; Dragan Nikoli}
Sentencing Trial Judgement, para. 268.
3217 Bla{ki Appeal Judgement, para. 696, referring to Kunarac et al. Appeal Judgement, paras 362, 408; Tadi
Sentencing Trial Judgement, para. 26.
3218 Bla{ki Appeal Judgement, para. 696, referring to Joki} Sentencing Trial Judgement, paras 90 – 91, 103.
3219 Bla{ki Appeal Judgement, para. 696, referring to Joki Sentencing Trial Judgement, para. 100.
3220 Bralo Appeal Sentencing Trial Judgement, para. 85.
325
Case No IT-98-29/1-T 12 December 2007
3. General Practice Regarding Sentencing in the Former Yugoslavia
1004. Article 24(1) of the Statute provides that “Trial Chambers shall have recourse to the general
practice regarding prison sentences in the courts of the former Yugoslavia”.3221 The case-law of the
Tribunal has consistently held that this does not require Trial Chambers to conform to the practice
regarding prison sentences in the courts of the former Yugoslavia; it only requires that Trial
Chambers take that practice into account.3222
1005. During the Indictment period, the sentencing law as it pertains to international crimes in BiH
was regulated by the Criminal Code of the SFRY (“SFRY Criminal Code”).3223 Article 142 of the
SFRY Criminal Code punishes war crimes against civilians, including killings, inhumane treatment,
and application of measures of intimidation and terror, with a minimum sentence of five years’
imprisonment or the death penalty, or by a maximum 20 years in prison, extendible to 40 years in
certain circumstances.3224 The Trial Chamber recalls that under Article 24 of the Statute the
maximum penalty is life imprisonment.
3221 See also, Dragan Nikoli Appeal Sentencing Trial Judgement, para. 85.
3222 See e.g. elebii Appeal Judgement, paras 813, 816, 820; Tadi Sentencing Appeal Judgement, para. 21; Kunarac
et al. Appeal Judgement, para. 377; Jelisi Appeal Judgement, paras 116 – 117; Staki Appeal Judgement, para. 398;
Gali} Appeal Judgement, para. 443.
3223 The Code was adopted by the Federal Assembly on 28 September 1976, and has been in force since 1 July 1977.
3224 SFRY Criminal Code, art. 38(2), 142. Article 38 provides that a prison sentence may not exceed 15 years unless the
crime was eligible for the death penalty, in which case the term of imprisonment could not exceed 20 years.
326
Case No IT-98-29/1-T 12 December 2007
V. DISPOSITION
1006. The Trial Chamber finds the Accused, Dragomir Milo{evi}, GUILTY pursuant to Article
7(1) of the Statute on the following counts:
Count 1, terror, a violation of the laws or customs of war;
Count 2, murder, a crime against humanity;
Count 3, inhumane acts, a crime against humanity;
Count 5, murder, a crime against humanity;
Count 6, inhumane acts, a crime against humanity;
1007. The finding of guilt on Count 1 has the consequence that Counts 4 and 7, unlawful attacks
against civilians, a violation of the laws or customs of war are DISMISSED.
1008. The Trial Chamber sentences Dragomir Milo{evi} to a single sentence of thirty-three (33)
years of imprisonment.
1009. Dragomir Milo{evi} has been detained since 3 December 2004. Pursuant to Rule 101(C) of
the Rules, Dragomir Milo{evi} is entitled to credit for time spent in detention so far. Pursuant to
Rule 103(C) of the Rules, Dragomir Milo{evi} shall remain in the custody of the Tribunal pending
finalisation of arrangements for his transfer to the State where he will serve his sentence.
Done on this twelfth day of December 2007,
in The Hague, the Netherlands,
in English and French, the English text being authoritative.
Judge Patrick Robinson
Presiding
Judge Antoine Kesia-
Mbe Mindua
Judge Frederik Harhoff
Seal of the Tribunal
327
Case No IT-98-29/1-T 12 December 2007
VI. ANNEX
A. Glossary
General Abbreviations
ABiH Armed Forces of the Republic of Bosnia and
Herzegovina
APC Armoured Personnel Carrier
Additional Protocol I Protocol Additional to the Geneva Conventions of 12
August 1949, and Relating to the Protection of Victims
of International Armed Conflicts (Protocol I), 8 June
1977
Additional Protocol II Protocol Additional to the Geneva Conventions of 12
August 1949, and Relating to the Protection of Victims
of Non-International Armed Conflicts (Protocol II), 8
June 1977
Adjudicated Facts Adjudicated Facts admitted into evidence by decisions
of the Trial Chamber on 10 April 2007 and 18 July
2007.
Agreed Facts Facts agreed to by the Parties, admitted by decision of
the Trial Chamber on 10 April 2007.
Anti-sniping Agreement Agreement on Elimination of Sniping Activities in
Sarajevo Region of 14 August 1994
Badinter Commission European Community’s Arbitration Commission, under
the chairmanship of Robert Badinter
BiH Bosnia and Herzegovina
Brig. Brigadier
Brig. Gen. Brigadier General
C Chamber exhibit
Capt. Captain
COHA Cessation of Hostilities Agreement of 23 December
1994
Col. Colonel
D Defence exhibit admitted into evidence
Defence Final Brief Defence Final Brief (Rule 86 (b)), with public annex A,
filed on 1 October 2007
DMZ Demilitarised zone
EC European Community
Gen. General
Geneva Convention III Geneva Convention Relative to the Treatment of
Prisoners of War, 12 August, 1949
GOFRS Global Operation Fire Rescue Services
HDZ Croatian Democratic Party
HVO Croatian Defence Council
ICRC International Committee of the Red Cross
ICRC Commentary Commentary on the Additional Protocols of 8 June
1977 to the Geneva Conventions of 12 August 1949,
International Committee of the Red Cross, Geneva,
1987.
ICTR International Criminal Tribunal for the Prosecution of
Persons Responsible for Genocide and Other Serious
328
Case No IT-98-29/1-T 12 December 2007
Violations of International Humanitarian Law
Committed in the Territory of Rwanda and Rwandan
Citizens responsible for genocide and other such
violations committed in the territory of neighbouring
States, between 1 January 1994 and 31 December 1994
ICTY International Tribunal for the Prosecution of Persons
Responsible for Serious Violations of International
Humanitarian Law Committed in the Territory of the
Former Yugoslavia since 1991
GT. Transcript page from hearings in the case Prosecutor v.
Stanislav Gali}, Case No. IT-98-29-T.
Indictment Amended Indictment in the case of Prosecutor v.
Dragomir Milo{evi}, Case No IT-98-29/1-PT, filed 18
December 2006
Indictment period From August 1994 to November 1995
JNA Yugoslav People’s Army
KDZ Counter Sabotage Protection Department of Bosnian
Muslim Ministry of Interior
Lt. Lieutenant
Lt. Col. Lieutenant Colonel
Lt. Com. Lieutenant Commander
Maj. Major
Maj. Gen. Major General
Markale Market I Shelling of Markale Market on 5 February 1994
MT. Transcript page from hearings in the case Prosecutor v.
Slobodan Miloševi}, Case No. IT-02-54-T.
MUP Ministry of Interior
OP UNPROFOR Observation Post
P Prosecution exhibit admitted into evidence
p. Page
pp Pages
para. Paragraph
paras Paragraphs
Prosecution Closing Brief Closing Brief of the Prosecution, filed on 1 October
2007
QMS Quartermaster Sergeant
Republika Srpska Serbian Republic of Bosnia and Herzegovina
RS Republika Srpska
Rules The Rules of Procedure and Evidence of the
International Criminal Tribunal for the Former
Yugoslavia
SAO Serb Autonomous Region
Scheduled incidents Incidents contained in the schedules to the Indictment
SDA Party of Democratic Action
SDS Serbian Democratic Party
SFRY Socialist Federal Republic of Yugoslavia
SRK Sarajevo Romanija Corps
Statute Statute of the International Criminal Tribunal for the
Former Yugoslavia
T. Transcript page from hearings at trial in the present
case. All transcript page numbers referred to are from
the unofficial, uncorrected version of the transcript,
unless specified otherwise. Minor differences may
329
Case No IT-98-29/1-T 12 December 2007
therefore exist between the pagination therein and that
of the final transcripts released to the public. The Trial
Chamber accepts no responsibility for the corrections to
or mistakes in these transcripts. In case of doubt, the
video-tape of a hearing is to be revisited.
TEZ Total Exclusion Zone
TO Territorial Defence
UN United Nations
UNHCR UN High Commissioner for Refugees
UNMO United Nations Military Observers
UNPROFOR United Nations Protection Force
VRS Republika Srpska Army
WCP Weapons Collection Point
List of Cases
ICTY
Aleksovski Trial Judgement Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-T,
Judgement, 25 June 1999
Aleksovski Appeal Judgement Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-A,
Judgement, 24 March 2000
Babi Sentencing Trial Judgement Prosecutor v. Milan Babi}, Case No. IT-03-72-S,
Sentencing Judgement, 29 June 2004
Banovi} Sentencing Trial Judgement Prosecutor v. Predrag Banovi}, Case No. IT-02-65/1-S,
Sentencing Judgement, 28 October 2003
Blagojevi} and Joki} Trial
Judgement
Prosecutor v. Vidoje Blagojevi} and Dragan Joki}, Case
No. IT-02-60-T, Judgement, 17 January 2005
Blagojevi} and Joki} Appeal
Judgement
Prosecutor v. Vidoje Blagojevi} and Dragan Joki}, Case
No. IT-02-60-A, Judgement, 9 May 2007
Bla{ki} Appeal Judgement
Prosecutor v. Tihomir Bla{ki}, Case No. IT-95-14-A,
Judgement, 29 July 2004
Bralo Sentencing Appeal Judgement Prosecutor v. Miroslav Bralo, Case No. IT-95-17-A,
Judgement on Sentencing Appeal, 2 April 2007
Branin Trial Judgement Prosecutor v. Radoslav Branin, Case No. IT-99-36-T,
Judgement, 1 September 2004
elebii Trial Judgement
Prosecutor v. Zejnil Delali et al., Case No. IT-96-21-T,
Judgement, 16 November 1998
elebii Appeal Judgement
Prosecutor v. Zejnil Delali et al., Case No. IT-96-21-A,
Judgement, 20 February 2001
eši Sentencing Trial Judgement Prosecutor v. Ranko ^e{i}, Case No. IT-95-10-S,
Sentencing Judgement, 11 March 2004
Deronji Sentencing Appeal
Judgement
Prosecutor v. Miroslav Deronji}, Case No. IT-02-61-A,
Judgement on Sentencing Appeal, 29 July 2005
Dragan Nikoli Sentencing Trial
Judgement
Prosecutor v. Dragan Nikoli}, Case No. IT-94-02-S,
Sentencing Judgement, 18 December 2003
Erdemovi Second Sentencing
Judgement
Prosecutor v. Dra`en Erdemovi}, Case No. IT-96-22-
Tbis, Sentencing Judgement, 5 March 1998
Furund`ija Trial Judgement Prosecutor v. Anto Furund`ija, Case No. IT-95-17/1-T,
Judgement, 10 December 1998
Furund`ija Appeal Judgement Prosecutor v. Anto Furund`ija, Case No. IT-95-17/1-A,
330
Case No IT-98-29/1-T 12 December 2007
Judgement, 21 July 2000
Gali Trial Judgement
Prosecutor v. Stanislav Gali}, Case No. IT-98-29-T,
Judgement 5 December 2003
Gali Appeal Judgement
Prosecutor v. Stanislav Gali}, Case No. IT-98-29-A,
Judgement, 30 November 2006
Hadžihasanovi and Kubura,
Interlocutory Appeal Decision
Prosecutor v. Enver Hadžihasanovi and Amir Kubura,
Case No IT-01-47-AR73.3, Decision on Joint Defence
Interlocutory Appeal of Trial Chamber Decision on Rule
98bis Motions for Acquittal, 11 March 2005
Halilovi Appeal Judgement Prosecutor v. Sefer Halilovi, Case No. IT-01-48-A,
Judgement, 16 October 2007
Jelisi Trial Judgement Prosecutor v. Goran Jelisi, Case No. IT-95-10-T,
Judgement, 14 December 1999
Jelisi} Appeal Judgement Prosecutor v. Goran Jelisi, Case No. IT-95-10-A,
Judgement, 5 July 2001
Joki Sentencing Trial Judgement Prosecutor v. Miodrag Joki}, Case No. IT-01-42-1-T,
Sentencing Judgement, 18 March 2004
Kordi} and erkez Jurisdiction
Decision
Prosecutor v. Dario Kordi} and Mario erkez, Case No.
IT-95-14/2-PT, Decision on the Joint Defence Motion to
Dismiss the Amended Indictment for Lack of Jurisdiction
Based on the Limited Jurisdictional Reach of Articles 2
and 3, 2 March 1999
Kordi} and erkez Trial Judgement
Prosecutor v. Dario Kordi} and Mario erkez, Case No.
IT-95-14/2-T, Judgement, 26 February 2001
Kordi} and erkez Appeal
Judgement
Prosecutor v. Dario Kordi} and Mario erkez, Case No.
IT-95-14/2-A, Judgement, 17 December 2004
Krsti} Trial Judgement
Prosecutor v. Radislav Krsti}, Case No. IT-98-33-T,
Judgement, 2 August 2001
Krsti} Appeal Judgement
Prosecutor v. Radislav Krsti}, Case No. IT-98-33-A,
Judgement, 19 April 2004
Krnojelac Trial Judgement
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T,
Judgement, 15 March 2002
Krnojelac Appeal Judgement
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A,
Judgement, 17 September 2003
Kunarac et al. Trial Judgement
Prosecutor v. Dragoljub Kunarac, et al., IT-96-23 and
IT-96-23/1-T, Judgement, 22 February 2001
Kunarac et al. Appeal Judgement Prosecutor v. Dragoljub Kunarac et al., Case No. IT-96-
23 & IT-96-23/1-A, Judgement, 12 June 2002
Kupre{ki} et al. Trial Judgement
Prosecutor v. Zoran Kupre{ki} et al., Case No. IT-95-16-
T, Judgement, 14 January 2000
Kupre{ki} et al. Appeal Judgement
Prosecutor v. Zoran Kupre{ki} et al., Case No. IT-95-16-
A, Judgement, 23 October 2001
Kvoka et al. Appeal Judgement
Prosecutor v. Miroslav Kvoka et al., Case No. IT-98-
30/1-A, Judgement, 28 February 2005
Limaj et al. Trial Judgement Prosecutor v. Limaj et al., Case No. IT-03-66-T,
Judgement, 30 November 2005
Limaj et al. Appeal Judgement Prosecutor v. Limaj et al., Case No. IT-03-66-A,
Judgement, 27 September 2007
Marti} Trial Judgement Prosecutor v. Milan Marti}, Case No. IT-95-11-T,
Judgement, 12 June 2007
Momir Nikoli} Sentencing Appeal
Judgement
Prosecutor v. Momir Nikoli, Case No. IT-02-60/1-A,
Judgement on Sentencing Appeal, 8 March 2006
331
Case No IT-98-29/1-T 12 December 2007
Mrk{i et al. Order for Review of
the Indictment
Prosecutor v Mrk{i} et al., Case No. IT-95-13-R61,
Order for Review in Open Court of the Indictment by
Trial Chamber I (Rule 61 of the Rules of Procedure and
Evidence), 6 March 1996
Mrk{i et al. Trial Judgement Prosecutor v. Mile Mrk{i et al., Case No. IT-95-13/1-T,
Judgement, 27 September 2007
Naletili and Martinovi Trial
Judgement
Prosecutor v. Naletili and Martinovi (a.k.a “Tuta and
Stela)”, Case No.IT-98-34-T, Judgement, 31 March 2003
Naletili and Martinovi Appeal
Judgement
Prosecutor v. Naletili and Martinovi (a.k.a “Tuta and
Stela)”, Case No.IT-98-34-A, Judgement, 3 May 2006
Plav{i} Sentencing Trial Judgement Prosecutor v. Biljana Plav{i}, Case No. IT-00-39&40/1-
S, Sentencing Judgement, 27 February 2003
Staki} Trial Judgement
Prosecutor v. Milomir Staki}, Case No. IT-97-24-T,
Judgement, 31 July 2003
Staki} Appeal Judgement Prosecutor v. Milomir Staki}, Case No. IT-97-24-A,
Judgement, 22 March 2006
Strugar et al. Decision on
Interlocutory Appeal
Prosecutor v. Pavle Strugar et al., Case No. IT-02-42-
R72, Decision on Interlocutory Appeal, 22 November
2002
Tadi} Jurisdiction Decision Prosecutor v. Dusko Tadi} a.k.a “Dule”, Case No. IT-
94-1-A Decision on Defence Motion for Interlocutory
Appeal on Jurisdiction, 2 October 1995
Tadi} Trial Judgement
Prosecutor v. Dusko Tadi}, Case No. IT-94-1-T,
Judgement, 7 May 1997
Tadi} Appeal Judgement Prosecutor v. Dusko Tadi}, Case No. IT-94-1-A,
Judgement, 15 July 1999
Tadi} Sentencing Trial Judgement Prosecutor v. Du{ko Tadi} (a.k.a. “Dule”), Case No. IT-
94-1-Tbis-R117, Sentencing Judgement, 11 November
1999
Tadi Sentencing Appeal Judgement Prosecutor v. Dusko Tadi, Case No. IT-94-1-Abis,
Sentencing Judgement, 26 January 2000
Todorovi Sentencing Trial
Judgement
Prosecutor v. Stevan Todorovi}, Case No. IT-95-9-1,
Sentencing Judgement, 31 July 2001
Vasiljevi} Trial Judgement
Prosecutor v. Mitar Vasiljevi}, Case No. IT-98-32-T,
Judgement, 29 November 2002
Vasiljevi} Appeal Judgement
Prosecutor v. Mitar Vasiljevi}, Case No. IT-98-32-A,
Judgement, 25 February 2004
Zelenovi} Sentencing Trial
Judgement
Proseuctor v. Dragan Zelenovi}, Case No. IT-96-23/2-S,
Sentencing Judgement, 4 April 2007
ICTR
Gacumbitsi Appeal Judgement Prosecutor v. Sylvestre Gacumbitsi, Case No. ICTR-
2001-64-A, Judgement, 7 July 2006
Kajelijeli Trial Judgement
Prosecutor v. Juvénal Kajelijeli, Case No. ICTR-98-44AT,
Judgement and Sentence, 1 December 2003
Kajelijeli Appeal Judgement Prosecutor v. Juvénal Kajelijeli, Case No. ICTR-98-44AA,
Judgement, 23 May 2005
Kambanda Appeal Judgement Prosecutor v. Jean Kambanda, Case No. ICTR-97-23-A,
Judgement, 19 October 2000
332
Case No IT-98-29/1-T 12 December 2007
Kayishema and Ruzindana Trial
Judgement
Prosecutor v. Clément Kayishema and Obed Ruzindana,
Case No. ICTR-95-1-T, Judgement, 21 May 1999
Kayishema and Ruzindana Appeal
Judgement
Prosecutor v. Clément Kayishema and Obed Ruzindana,
Case No. ICTR-95-1-A, Judgement, 1 June 2001
SCSL
The AFRC Accused Trial Judgement Prosecutor v. Alex Tamba Brima, Brima Bazzy Tamara,
Santigie Borbor Kanu, Case No. SCSL-04-16-T,
Judgement, 20 June 2007
Volume XIV - Annexes 465-466