1 Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94-1-AR72,2 October 1995, paragraph 94. The four conditions 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; (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 must entail, under customary or international law, the individual criminal responsibility of the person breaching the rule.”

* This document was reproduced and reformatted from the text appearing at the ICTY website (visited June 15, 2004)<http://www.un.org/icty.> Due to the extreme length of the document, the ILM office has abbreviated this case in conjunction with the ICTY Office of the Prosecutor. Please note that the table of contents is replicated in its entirety, including those sections removed.

1 Prosecution Opening Statement, T. 562-3.

2 The First Schedule refers to sniping incidents allegedly committed against civilians by forces under the command and control of the Accused. The Second Schedule lists a number of shelling incidents allegedly committed against civilian targets by forces under the command and control of the Accused, Indictment, para. 15.

3 See Decision on Acquittal (details of that decision are mentioned in Annex B of this Judgement).

4 See the Indictment in Annex A. General Galić is charged with four crimes against humanity (murder and inhumane acts) under Article 5 of the Statute and with three violations of the laws or customs of war (inflicting terror on civilians and attacks on civilians) under Article 3 of the Statute.

5 Rule 98 ter (C): the judgement shall be rendered by a majority of judges.

6 Tadić Jurisdiction Decision, para. 94.

7 Id., para. 70.

8 Id, para. 89.

9 Id., para. 91.

10 Tadić Jurisdiction Decision, para. 89; Kunarac Trial Judgement, para. 401; Furundžija Trial Judgement, paras 131-133.

11 Tadi ćJurisdiction Decision, para. 94.

12 Prosecution Pre-Trial Brief, para. 137; Prosecution Final Trial Brief, paras 11 to 15.

13 Prosecution Pre-Trial Brief, para. 137; Prosecution Final Trial Brief, para. 15.

14 Prosecution Pre-Trial Brief, para. 136; Prosecution Final Trial Brief, paras 11 and 12; Prosecution Closing Arguments, T. 21950 (private session).

15 Prosecution Pre-Trial Brief, para. 132.

16 Prosecution Closing Arguments, T. 21970

17 Defence Pre-Trial Brief, para. 8.11. Both parties also stipulated that “[a]ll parties to the armed conflict were required to abide by the laws and customs governing the conduct of war” (Schedule of Facts Stipulated to by the Parties, 26 October 2001, stipulated fact No. 23).

18 Defence Final Trial Brief, para. 1093.

19 Id., para. 1096.

20 Id., para. 971.

21 Id., paras 971-2.

22 Id., para. 977.

23 Defence Closing Arguments, T. 21966-73.

24 Tadi ćJurisdiction Decision, para. 127; Kupreški ćtrial Judgement, para. 521.

25 Strugar Interlocutory Appeal, para. 10; Martic Rule 61 Decision, para. 10. See also Kordi ćJurisdiction Decision, para. 31.

26 Both instruments were ratified by the Socialist Federal Republic of Yugoslavia (SRFY) on 11 June 1979. The Republic of Bosnia- Herzegovina deposited its Declaration of Succession on 31 December 1992, declaring it became party to the Geneva Conventions and the Additional Protocols as of the date of its independence, 6 March 1992.

27 See Article 1 of Additional Protocol I and Article 1 of Additional Protocol II to the Geneva Conventions of 1949.

28 Parties to an armed conflict may agree to bring into force provisions applicable to international armed conflicts. This is reflected in Common Article 3 to the Geneva Conventions and Article 96 of Additional Protocol I.

29 P58 (22 May Agreement), para. 2.3. The parties agreed to apply Articles 13 to 34 of the Fourth Geneva Convention of 1949. In addition, paragraph 2.3 of the 22 May Agreement specifically provides that: “The civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations. They shall not be made the object of attack.“

30 P58 (22 May Agreement), para. 2.5. Each party also agreed to undertake “when it is informed, in particular by the ICRC, of any allegation of violations of international humanitarian law, to open an enquiry promptly and pursue it conscientiously, and to take the necessary steps to put an end to the alleged violations or prevent their recurrence and to punish those responsible in accordance with the law in force” (para. 5).

31 Letter dated 12 June 1995, para. A (DDM/JUR 95/931 MSS/RBR). Copy available at ICTY Library.

32 The representatives were Mr. K. Trnka, representative of the President of the Republic of Bosnia-Herzegovina, Mr. D. Kalinik, representative of the President of the Serbian Democratic Party, Mr. S. Sito Coric, representative of the President of the Croatian Democratic Community.

33 This agreement deals with matters such as the exchange and release of prisoners, measures to be taken to de-block populations or objects, identification of humanitarian corridors, and security guarantees to be afforded to the ICRC. Copy available at ICTY Library.

34 6 June Agreement, Section II, para. 6. Copy available at ICTY Library.

35 Id., para. 7.

36 Id., para. 10.

37 The three parties to conflict were represented in London by Radovan Karadžić, President of the Serbian Democratic Party, Alija Izetbegovic, President of the Republic of Bosnia-Herzegovina and Mate Boban, President of the HDZ.

38 Programme of Action on Humanitarian Issues, Article 3. Copy available at ICTY library.

39 Agreement on the Release and Transfer of Prisoners, Preamble. Copy available at ICTY library. The October Agreement further stated that: “All prisoners not accused of, or sentenced for, grave breaches of International Humanitarian Law as defined in Art. 50 of the First, Art. 51 of the Second, Art. 130 of the Third and Art. 147 of the Fourth Geneva Convention, as well as in Art. 85 of Additional Protocol I, will be unilaterally and unconditionally released.” Id., Art. 3 ( emphasis added).

40 Tadi ćJurisdiction Decision, para. 94.

41 See Art. 85(3) of Additional Protocol I

42 Tadić Jurisdiction Decision, para. 94.

43 Id., para. 134.

44 Strugar Interlocutory Appeal, para. 10.

45 See Art. 85(3) (a) of Additional Protocol I. See also ICRC Commentary, paras 1932, 1941.

46 See the Programme of Action on Humanitarian Issues, Article 3(i); October Agreement, Article 3.

47 See, e.g., Law of 16 June 1993 relative to the repression of serious violations of international humanitarian law, Belgium, Chapter 1§3, No.ll; Swedish Penal Code, Chap. 22, §6, No. 3 and 4 (1990); Hungarian Criminal Code, Chapter XI, Section 160 (1978); Philippine Criminal Code, Article 334 (1964); Criminal Code of Mozambique, Article 83 (1987); Italian Criminal Military Code of War, Article 185 (1941); Spanish Penal Code, Article 611 (1) (1995); Croatian Penal Code, Article 120 (1) (1991).

48 Original code (Službeni list SFRJ, br. 38/90) available at ICTY Library.

49 BiH Decree law of 11 April 1992 (Službeni list RbiH, br. 2/92) available at ICTY Library.

50 See, e.g., United States Field Manual No. 27-10: The Law of Land Warfare, para. 25 (1976); United Kingdom Manual of Military Law, chap. 4, para. 88 (1958); German Military Manual (Humanitäres Völkrerrecht in bewaffneten Konflikten-Handbuch), paras 404 and 451 (1992) (English translation available at ICTY library); Canadian Law of Armed Conflict at the Operational and Tactical Level, Section 4, paras 15 and 22 (1992); Dutch “Soldiers Handbook” (Handboek voorde Soldaat), VS 2-1350, Chapter VII, Art. 34 (1974); Australian Law of Armed Conflict Commander's Guide (ADFP 37 Supplement 1), para. 1302 (1994); New Zealand Interim Law of Armed Conflict Manual, para. 517 (1992); Canadian Law of Armed Conflict at the Operational and Tactical Level, Section 4, paras 15, 22 (1992); Soviet Minister of Defence Order No. 75 of 16 February 1990 on the Publication of the Geneva Conventions of 12 August 1949 relative to the Protection of Victims of War and their Additional Protocols (1990), art. 8, para. (f). (French translation available at the ICRC's web site:)

51 P5 (1988 Yugoslavia Regulations on the Application of International Laws of War in the Armed Forces of the SRFY), para. 33.

52 Prosecution Pre-Trial Brief, para. 160; Prosecution Final Trial Brief, para. 9. The Prosecution submits that, in addition, two common elements of Article 3 of the Statute must be met, namely that: (1) there was a nexus between the attack and an armed conflict; and (2) the accused bears individual criminal responsibility for the attack under either Article 7(1) or 7(3) of the Statute. Prosecution Final Trial Brief, para. 9.

53 Prosecution Pre-Trial Brief, paras 133, 139; Prosecution Final Trial Brief, para. 9.

54 Prosecution Pre-Trial Brief, paras 155-6; Prosecution Final Trial Brief, paras 16-17.

55 Prosecution Response to Defence Motion to Acquit, para. 9.

56 Prosecution Pre-Trial Brief, para. 165.

57 Prosecution Final Trial Brief, para. 10.

58 Id., para. 16.

59 Prosecution Pre-Trial Brief, para. 157; Prosecution Final Trial Brief, para. 17.

60 Prosecution Final Trial Brief, paras 21-33.

61 Id., para. 23.

62 Id., para. 24.

63 Id., paras 25-29.

64 Id., para. 22.

65 W., paras 669-76.

66 Defence Motion to Acquit, paras 8(b). The Defence point to the difficulties of distinguishing between civilians and combatants in the context of urban warfare. Defence Final Trial Brief, paras 464-82, 707-10.

67 Defence Final Trial Brief, paras 464-82.

68 Id., para. 810.

69 Id., para. 812.

70 In its Pre-Trial Brief, the Defence asserts that civilian casualties caused during the conflict in Sarajevo were due to the failure of the ABiH to respect its obligations under Article 58 of Additional Protocol I. Defence Pre-Trial Brief, paras 8.14-8.15. In its Final Trial Brief, the Defence submits that the failure of the ABiH to remove the civilian population from the proximity of military objectives was a violation of its obligations under Article 28 of the Fourth Geneva Convention. Defence Final Trial Brief, para. 537.

71 Defence Final Trial Brief, paras 13-14, 986.

72 Blaškic Trial Judgement, para. 180.

73 Id., para. 180.

74 Kordi ć Trial Judgement, para. 328.

75 See Article 85(3)(a) of Additional Protocol I.

76 In its broad sense, military necessity means “doing what is necessary to achieve a war aim.” (Dictionary of International Law of Armed Conflict, ed. ICRC, 1992). The principle of military necessity acknowledges the potential for unavoidable civilian death and injury ancillary to the conduct of legitimate military operations. However, this principle requires that destroying a particular military objective will provide some type of advantage in weakening the enemy military forces. Under no circumstance are civilians to be considered legitimate military targets. Consequently, attacking civilians or the civilian population as such cannot be justified by invoking military necessity. See also Art. 57(5) of Additional Protocol I. The following finding by the Nuremberg Tribunal in the United States v. List case provides some guidance in this respect: “Military necessity permits a belligerent, subject to the laws of war, to apply any amount and kind of force to compel the complete submission of the enemy with the least possible expenditure of time, life, and money […] It permits the destruction of life of armed enemies and other persons whose destruction is incidentally unavoidable by the armed conflicts of the war; it allows the capturing of armed enemies and others of peculiar danger, but does not permit the killing of innocent inhabitants for purposes of revenge or the satisfaction of a lust to kill. The destruction of property to be lawful must be imperatively demanded by the necessities of war. Destruction as an end in itself is a violation of international law. There must be some reasonable connection between the destruction of property and the overcoming of the enemy forces.” (11 Trials of War Criminals before the Nuremberg Military Tribunals 1253-4 (1950)).

77 It should be noted further that, in Article 51(6), Additional Protocol I explicitly prohibits “attacks against the civilian population or civilians by way of reprisals.” This prohibition is based on the principle of protection of civilians. At ratification of Additional Protocol I, a number of states made statements of interpretation which appeared to keep open the possibility of reprisals, subject to certain requirements. For example, Italy's statement of interpretation included the following: “Italy will react to serious and systematic violations by an enemy of the obligations imposed by Additional Protocol I and in particular its Articles 51 and 52 with all means admissible under international law in order to prevent any further violations.” (Statements of Understanding made by Italy (27 February 1986). See also, e.g., Statement of Understanding made by the United Kingdom (28 January 1998)). The Trial Chamber will not pronounce itself on the legal consequences of these declarations. However, it notes that the language of Article 51 (6) of Additional Protocol I implies that the prohibition against reprisals cannot be waived on the grounds of military necessity.

78 The Trial Chamber notes that, already in 1868, the Preamble to the St Petersburg Declaration stated that the “technical limits at which the necessities of war ought to yield to the requirements of humanity” and that the weakening of the military forces of the enemy should be “the only legitimate object which states should endeavour to accomplish during war.” The Brussels Declaration of 1874 stated in its articles 15-18 that civilian dwellings are immune from attacks. This Declaration laid the groundwork for the Fourth Hague Convention of 1907, which established in its Article 25 that “the attack or bombardment, by any means whatever, of undefended towns, villages, dwellings or building, is forbidden.” In 1937, during the Spanish Civil War, Prime Minister Chamberlain, in the British House of Commons, made explicit reference to the rule forbidding attacks on the civilian population as such. In June 1938, following the German and Italian air forces operations during this conflict and similar attacks carried out by Japan in China, he stated in the House of Commons that one of the three rules or principles of international law equally applicable to air, land, or sea warfare in any armed conflict was the rule whereby “it is against international law to bomb civilians as such and to make deliberate attacks upon civilian populations.” (House of Commons Debates, Vol. 337,21 June 1938. cols. 937-8). This same rule was later reaffirmed by the Assembly of the League of Nations in 1938, which adopted a resolution on 30 September 1938 regarding both the Spanish Civil War and the Chinese-Japanese War, stating in general terms that “intentional bombing of civilian population is illegal.” The applicability of this rule in all armed conflicts was further corroborated by General Assembly Resolutions 2444 (1968) and 2675 (1970), both adopted unanimously. In its Resolution 2444, the General Assembly affirmed that “the following principles for observance by all governmental and other authorities responsible for action in armed conflicts: (b) that it is prohibited to launch attacks against the civilian populations as such.” (G.A. Res. 2444, U.N. GAOR, 23rd Session, Supp. No. 18 U.N. Doc A/7218( 1968)). In its Resolution 2675, it stated that “the following basic principles for the protection of civilian populations in armed conflicts, without prejudice to their future elaboration within the framework of progressive development of the international law or armed conflict (4) [Civilian populations as such should not be the object of military operations.” (G.A. Res. 2675, U.N. GAOR 25th Session, Supp. No. 28 U.N. Doc A/8028 (1970)). Evidence of the existence of opinio iuris regarding the prohibition against attacking civilians and its applicability in all armed conflicts can also be found in the Resolution adopted by the Institute of International Law in its Edinburgh session in 1969, entitled “The Distinction between Military Objectives and Non-Military Objectives in General and Particularly the Problems Associated with Weapons of Mass Destruction.” It noted that “[e]xisting international law prohibits all armed attacks on the civilian populations as such […].” (D. Schindler and J. Toman, The Laws of Armed Conflicts, Martinus Nihjoff Publisher, 1988, pp 265-6). The customary status of this prohibition is further borne out of the travaux préparatoires of the Additional Protocols. For example, the United Kingdom delegate in the Diplomatic Conference observed that paragraphs 1 to 3 of Article 51 entitled “protection of the civilian population” contain “a valuable reaffirmation of existing customary rules of international law” designed to protect civilians. (See 6 Official Records, p. 164). For the Ukrainian delegate, paragraph 2 is “in line with the generally recognized rules of international law” (Ibid, p. 201). The Canadian delegate indicated that many of the provisions of Article 51 are “codification of customary international law” (Ibid, p. 179). The ICRC Commentary describes Article 51 as a “key article in the Protocol” and as an “indispensable provision.” It also points out that Article 51 was originally presented as one of the provisions to which reservations were prohibited (O.R. X, p. 251, CDDH/405/Rev.l). The idea of having a core of provisions to which no reservation would be allowed was eventually rejected, but some delegations nevertheless expressed the view that reservations to this article would be incompatible with object and purpose of the treaty. (O.R. VI, p. 167, CDDH/SR.41, paras 135-7; p. 187, Id. Annex (GDR), pp 192-3 (Mexico)). See also ICRC Commentary, para. 1930.

79 See Article 48 of Additional Protocol I. This article enunciates the principle of distinction as a basic rule.

80 ICJ Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, ICJ Report 1996, para. 78. The International Court of Justice further asserted that “these fundamental rules are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law.” Id., para.79.

81 Article 51(1) of Additional Protocol I states clearly that “the civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations.” To give effect to this protection, the following rules, which are additional to other applicable rules of international law, shall be observed in all circumstances.” Among the instruments that provide rules for the protection of civilians are, inter alia, the Hague Regulations, annexed to the 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land and the Fourth Geneva Convention of 1949.

82 The Trial Chamber recalls that the principle of nullum crimen sine lege “ does not prevent a court, either at the national or international level, from determining an issue through a process of interpretation and clarification as to the elements of a particular crime[,] nor does it prevent a court from relying on previous decisions which reflect an interpretation as to the meaning to be ascribed to particular ingredients of a crime.” Aleksovski Appeal Judgement, para. 127.

83 Art 4 of the Third Geneva Convention states, inter alia: “ 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.“

84 Art 43 of Additional Protocol I states: “ 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 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. 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.“

85 See Article 51 (3) of Additional Protocol I.

86 ICRC Commentary, para. 1944.

87 KupreškićTrial Judgement, paras 522-3. The Inter-American Commission of Human Rights also provided guidance as to the scope of civilian immunity, in the Tablada case, by stating that:“(…)When civilians, such as those who attacked the Tablada base, assume the role of combatants by directly taking part in fighting, whether singly or as a member of a group, they thereby become legitimate military targets. As such, they are subject to direct individualised attack to the same extent as combatants. Thus, by virtue of their hostile acts, the Tablada attackers lost the benefits of the above mentioned precautions in attack and against the effects of indiscriminate or disproportionate attacks pertaining to peaceable civilians. In contrast, these humanitarian law rules continued to apply in full force with respect to those peaceable civilians present or living in the vicinity of the La Tablada base at the time of the hostilities.” Juan Carlos Abella v. Argentina, Case 11.137, Report N° 55/97, Inter-Am. C.H.R., OEA/Ser.L/V/II.95 Doc. 7, p. 271, para. 178 (1997).

88 Combatant status implies not only being considered a legitimate military objective, but also being able to kill or wound other combatants or individuals participating in hostilities, and being entitled to special treatment when hors-de-combat, i.e. when surrendered, captured or wounded (See Article 41(2) of Additional Protocol I).

89 See Article 50(1) of Additional Protocol I.

90 See ICRC Commentary, para. 1938. The terms of this provision of Additional Protocol I reflect the language of General Assembly Resolutions 2444 (1968) and 2675 (1970). The Appeals Chamber has considered these resolutions to be declaratory of customary international law in this field. See TadićDecision on Jurisdiction, para. 112.

91 See Article 50(3) of Additional Protocol I. The Commentary to this paragraph notes that:” [i]n wartime condition it is inevitable that individuals belonging to the category of combatants become intermingled with the civilian population, for example, soldiers on leave visiting their families. However, provided that these are not regular units with fairly large numbers, this does not in any way change the civilian character of a population.” ICRC Commentary, para. 1922.

92 See Article 50( 1) of Additional Protocol I.

93 ICRC Commentary, para. 1920.

94 Article 52(2) of Additional Protocol I. See Kordi ć TrialJudgement, para. 327.

95 Article 52(2) of Additional Protocol I.

96 Article 52(3) of Additional Protocol I.

97 ICRC Commentary, para. 4783.

98 Krnojelac Trial Judgment, para. 54; Kunarac Trial Judgment, para. 415.

99 See Article 85(3)(a) of Additional Protocol I.

100 ICRC Commentary, para. 3474.

101 Other Trial Chambers have found that attacks which employ certain means of combat which cannot discriminate between civilians and civilian objects and military objectives are tantamount to direct targeting of civilians. For example, the Blaški ć Trial Chamber inferred from the arms used in an attack carried out against the town of Stari Vitez that the perpetrators of the attack had wanted to target Muslim civilians, since these arms were difficult to guide accurately, their trajectory was “irregular” and non-linear, thus being likely to hit non-military targets. Blaški ćTrial Judgement, paras 501, 512. In the Manic Rule 61 proceedings, the Trial Chamber regarded the use of an Orkan rocket with a cluster bomb warhead as evidence of the intent of the accused to deliberately attack the civilian population. The Chamber concluded that “in respect of its accuracy and striking force, the use of the Orkan rocket in this case was not designed to hit military target but to terrorise the civilians of Zagreb. These attacks are therefore contrary to the rules of customary and conventional international law.” The Trial Chamber based this finding on the fact that the rocket was inaccurate, it landed in an area with no military objectives nearby, it was used as an antipersonnel weapon launched against the city of Zagreb and the accused indicated he intended to attack the city, Martic Rule 61 Decision, paras 23-31. It is relevant to note that the International Court of Justice has stated, with regard to the obligation of States not to make civilians the object of attack, that “they must consequently never use weapons that are incapable of distinguishing between civilian and military targets,” ICJ Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, ICJ Report 1996, para. 78.

102 Article 51(4) of Additional Protocol I prohibits indiscriminate attacks and provides the first conventional definition of indiscriminate attacks.Paragraph (5) of the same provision provides examples of attacks considered to be indiscriminate.TheKupreškićTrial Chamber held, with regard to the prohibition of launching indiscriminate attacks, that “it is nevertheless beyond dispute that at a minimum, large numbers of casualties would have been interspersed among the combatants.The point which needs to be emphasised is the sacrosanct character of the duty to protect civilians […] Even if it can be proved that the Muslim population of Ahmici was not entirely civilian but comprised some armed elements, still no justification would exist for widespread and indiscriminate attacks against civilians.” KupreškićTrial Judgement, para. 513.See also Blaškić trial Judgement, paras 509-10.

103 As recognized by the Appeals Chamber, among the customary rules that have developed to govern both international conflicts and non-international strife is the protection of the civilian population against indiscriminate attacks. Tadić Jurisdiction Decision, para. 127. The Trial Chamber observes that, already in 1922, the Air Warfare Rules enunciated the prohibition on indiscriminate attacks, by providing that “where military objectives were situated so that they could not be bombarded without the indiscriminate bombardment of the civilian population, the aircraft must abstain from the bombardments.” (Article 24 (3), Air Warfare Rules). These rules impose further limits to bombardments by providing in Article 24(4) that “in the immediate neighbourhood of the operations of land forces, the bombardments of cities, towns and villages, dwellings or buildings is legitimate provided that there exists a reasonable presumption that the military concentration is sufficiently important to justify such bombardments, having regard to the danger thus posed to the civilian population.” Although these rules were never adopted in legally binding form, they are considered to be an authorative interpretation of the law.(See, e.g., L. Oppenheim, International Law vol II, 7th ed, 1960). The IX Hague Convention concerning Bombing of Naval Forces in Time of War of 1907 also recognized in its Article 12 that collateral civilian casualties might result and urged that precautions be taken to avoid or minimize them. In March 1938, during the Spanish Civil War, the British Prime Minister explained the protest of his country to General Franco over the bombing of Barcelona to members of the House of Commons by stating that “The one definite rule of international law, however, is that direct and deliberate bombing of non-combatants is in all circumstances illegal, and His Majesty's Government's protest was based on information which led them to the conclusion that the bombardments of Barcelona, carried on apparently random and without special aim at military objectives, was in fact of this nature.“(House of Commons Debates, vol. 333, 23 March 1938, col. 1177). In June of that year, in reference to the same conflict, the Prime Minister affirmed before the House of Commons the existence of a rule or principle of international law prescribing that “reasonable care must be taken in attacking….military objectives so that by carelessness a civilian population in the neighbourhood is not bombed.” (House of Common Debates, vol. 337, 21 June 1938, cols 937-8). In 1938, the Assembly and the Council of the League of Nations both condemned attacks carried out without sufficient precautions to safeguard the civilian population. The Assembly of the League of Nations expressed the concern that the civilian population be bombarded through negligence by stating, inter alia, that “any attack on legitimate military objectives must be carried out in such a way that civilian population in the neighbourhood are not bombed through negligence.” In this same sense, the Council of the League of Nations also adopted a resolution condemning inter alia as “contrary to the conscience of mankind and to the principles of international law air attacks by the insurgents directed “by negligence’ against civilian population.” In its already cited Resolution 2444 (1968), the UN General Assembly affirmed that among the principles applicable to all armed conflicts was that “a distinction must be made at all times between persons taking part in the hostilities and members of the civilian population to the effect that the latter be spared as much as possible.” (G.A. Res. 2444, U.N. GAOR, 23rd Session, Supp. No. 18 U.N. Doc A/7218(1968)). Resolution 2675(1970) also stated that “in the conduct of military operations, every effort should be made to spare the civilian populations from the ravages of war, and all necessary precautions should be taken to avoid injury loss or damage to the civilian populations.” (G.A. Res. 2675, U.N. GAOR, 25th Session, Supp. No. 28 U.N. Doc A/8028 (1970).

104 The principle of proportionality, inherent to both the principles of humanity and military necessity upon which the law of conduct of hostilities is based, may be inferred, inter alia, from Articles 15 and 22 of the Lieber Code and from Article 24 of the 1924 Hague Air Warfare Rules. This principle was codified in Article 51 (5)(b) and Article 57(2)(a)(iii) and (b) of Additional Protocol I. It should be noted that these provisions do not make explicit reference to the term “proportionality” but speak of “excessive” incidental civilian losses. Article 51(5) of Additional Protocol I provides that “(a(mong others, the following types of attacks are to be considered as indiscriminate: […] (b) an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.” Article 57(2) of Additional Protocol I states that: “(2). With respect to attacks, the following precautions shall be taken: (a) […] (iii) refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated; (b) an attack shall be cancelled or suspended if it becomes apparent that the objective is not a military one or is subject to special protection or that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.“

105 See Article 57(2) of Additional Protocol I. The precautions required by Article 57(2)(a) must be “feasible” and, in this context, “feasible” means that which is practicable or practically possible. The French version of this paragraph reads: “faire tout ce qui est pratiquement possible […]” (emphasis added). Italy stated in a declaration submitted upon ratification of Additional Protocol I that “feasible” must be understood to mean that which is “practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations.” (See Statements of Understanding made by Italy (27 February 1986)). Several states have submitted similar declarations pertaining to Additional Protocol I, with no objections raised by other state parties. (See Statements of Understanding of Belgium (20 May 1986), The Netherlands (26 June 1987), Spain (21 April 1989), Canada (20 November 1990), Germany (14 February 1991), Australia (21 June 1991), and Egypt (9 October 1992). In another context, the European Commission and Court of Human Rights examined a case of “armed clash” in which a woman, standing in the doorway of her home, had been killed in the course of a supposed ambush operation carried out against members of an alleged armed group. Regarding the obligation to avoid incidental civilian losses, the Commission considered that the planning and control of the operation needed to be assessed .” .. not only in the context of the apparent targets of an operation but, particularly where the use of force is envisaged in the vicinity of the civilian population, with regard to the avoidance of incidental loss of life and injury to others” (Ergi v. Turkey No. 23818/94, Decision on admissibility of 2 March 1995, 80 D &R 157, Commission Report of 20 May 1997). The Court explicitly noted that the responsibility of the State “may also be engaged where ? the security forcesg fail to take all feasible precautions in the choice of means and methods of security operation mounted against an opposing group with the view to avoiding, or at least, minimising incidental loss of civilian life” (Ergi v. Turkey, Judgement of 28 July 1998, para. 79).

106 See Article 51(5)(b) of Additional Protocol I. The travaux préparatoires of Additional Protocol I indicate that the expression “concrete and direct” was intended to show that the advantage must be “substantial and relatively close”, and that “advantages which are hardly perceptible and those which would only appear in the long term should be disregarded.” ICRC Commentary, para. 2209. The Commentary explains that “a military advantage can only consist in ground gained or in annihilating or in weakening the enemy armed forces.” ICRC Commentary, para. 2218. Australia and New Zealand stated at the time of ratification, in almost identical wording, that “the term “concrete and direct military advantage anticipated', used in Articles 51 and 57 of Additional Protocol I, means bonafide expectation that the attack will make a relevant and proportional contribution to the objective of the military attack involved.” (See Statements of Understanding made by New Zealand (8 February 1988) and Australia (21 June 1991)).

107 See Article 57(2)(b) of Additional Protocol I.

108 The ICRC Commentary acknowledges that “the disproportion between losses and damages caused and the military advantages anticipated raises a Delićate problem; in some situations there will be no room for doubt, while in other situations there may be reason for hesitation. In such situations, the interests of the civilian population should prevail.” ICRC Commentary, para. 1979.

109 The Trial Chamber notes that the rule of proportionality does not refer to the actual damage caused nor to the military advantage achieved by an attack, but instead uses the words “expected” and “anticipated”. When ratifying Additional Protocol I, Germany stated that “the decision taken by the person responsible has to be judged on the basis of all information available to him at the relevant time, and not on the basis of hindsight.” ﹛See Statements of Understanding made by Germany (14 February 1991)). Similar declarations were also made by Switzerland (17 February 1982), Italy (27 February 1986), Belgium (20 May 1986), The Netherlands (26 June 1987), New Zealand (8 February 1988), Spain (21 April 1989), Canada (20 November 1990), and Australia (21 June 1991). No other party to Additional Protocol I has raised objections to these declarations.

110 Military manuals provide guidance as to the practical application of this test. The Canadian Law of Armed Conflict at the Operational and Tactical Level, Section 5, para. 27 (1992) indicates, for example, that “consideration must be paid to the honest judgement of responsible commanders, based on the information reasonably available to them at the relevant time, taking fully into account the urgent and difficult circumstances under which such judgements are usually made” and indicates that the proportionality test must be examined on the basis of “what a reasonable person would do” in such circumstances. The Australian Defence Force, Law of Armed Conflict — Commander's Guide (1994), at p. 9-10, and the New Zealand Interim Law of Armed Conflict Manual, at para. 515(4), contain a similar provision. See also, e.g., Yugoslav Regulation on the Application of international Laws of War in the Armed Forces of the SRFY, para. 72 (1988).

111 See Article 85(3)(b) of Additional Protocol I.

112 See Article 58 of Additional Protocol I.

113 The Prosecution refers to it as “the offence of terror“: see, for example, Prosecution Pre-trial Brief, para. 25.

114 In the Čelebi ćicase, acts of intimidation creating an “atmosphere of terror” in prison camps were punished as grave breaches of the Geneva Conventions (torture or inhuman treatment) and as violations of Article 3 common to the Geneva Conventions (torture or cruel treatment): Čelebići Trial Judgement, paras 976, 1056, 1086-91, and 1119. In the Blaškic case “the atmosphere of terror reigning in the detention facilities” was part of the factual basis leading to the Accused in that case being convicted for the crimes of inhuman treatment (a grave breach) and cruel treatment (a violation of the laws or customs of law): Blaškic Trial Judgement, paras 695, 700, and 732-3. Blaškic's additional conviction for “unlawful attack” on civilians was based in part upon the finding that his soldiers “terrorised the civilians by intensive shelling, murders and sheer violence” (Id., para. 630; also paras 505, 511). And in the Krsti ćcase, General Krstić was accused of persecutions, a crime against humanity, on the basis of his alleged participation in “the terrorising of Bosnian Muslim civilians“: Krsti ć Tnal Judgement, para. 533. The Trial Chamber found that a “terror campaign“ was in existence: “Numerous witnesses gave evidence that, during Operation Krivaja 95, the VRS shelled the Srebrenica enclave intensively with the apparent intent to terrify the populace” (Id., para. 122). Moreover: “On 12 and 13 July 1995, upon the arrival of Serb forces in Potocari, the Bosnian Muslim refugees taking shelter in and around the compound were subjected to a terror campaign comprised of threats, insults, looting and burning of nearby houses, beatings, rapes, and murders” (Id., para. 150). The Trial Chamber in Krstić characterized “the crimes of terror”, and the forcible transfer of the women, children, and elderly at Potocari as constituting persecution and inhumane acts (Id., para. 607; see also paras 1, 41, 44, 46, 147, 153, 292, 364, 517, 527, 537, 653, 668, 671, 677). See also Martic Rule 61 Decision, paras 23-31 (use of rocket was not designed to strike a military target but to terrorize the civilian population of Zagreb contrary to the rules of international law); and Nikolic Sentencing Judgement, para. 38.

115 The Special Court for Sierra Leone has issued several indictments containing counts of “acts of terrorism” (“terrorizing the civilian population“) brought pursuant to Article 3 common to the Geneva Conventions and to Additional Protocol II; see .

116 Prosecution Pre-trial Brief, para. 132.

117 P. 58.

118 Prosecution Pre-trial Brief, para. 136.

119 Id., para. 141. The Prosecution Final Trial Brief (para. 8, fn. 5) simply referred back to the submissions in the Pre-trial Brief.

120 Prosecution Pre-trial Brief, para. 142. These elements were repeated without change in the Prosecution Final Trial Brief (para. 8).

121 Prosecution Pre-trial Brief, para. 144.

122 Id., para. 144.

123 Id., paras 143, 148.

124 Id., para. 149.

125 Id., para. 150.

126 Id., para. 25 (emphasis added).

127 Id., paras 142-3 (emphasis added).

128 Id., para. 145 (emphasis added).

129 Id, para. 147.

130 Id., 109.

131 Response to Acquittal Motion, para. 16.

132 As mentioned above, para. 8 of the Prosecution Final Trial Brief simply reverts to the submissions in the Pre-trial Brief.

133 Art. 51(2) of Additional Protocol I and Art. 13(2) of Additional Protocol II.

134 Defence Pre-trial Brief, paras 8.11, 8.23, 8.24.

135 Id, para. 8.20.

136 Id., para. 8.20.

137 Defence Closing Arguments, T. 21807.

138 Defence Pre-trial Brief, paras 8.21-8.24.

139 See Defence Final Trial Brief, paras 1097-104.

140 Id., para. 445.

141 Id., para. 446.

142 Id, para. 888.

143 Id., para. 584.

144 Defence Closing Arguments, T. 21810.

145 Defence Final Trial Brief, para. 977.

146 Id., paras 971-2.

147 T. 21966-73.

148 See supra, paras 23-4.

149 It should be noted, however, that the Defence's submissions on the constraining effect of Article 2 common (“Common Article 2“) to the Geneva Conventions on the applicability of Additional Protocol I are not accurate. While it is true that the scope of that Protocol's application is given in Article 1 of the protocol as corresponding to the situations referred to in Common Article 2 — namely “to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties,” as well as “to all cases of partial or total occupation of the territory of a High Contracting Party” — clearly this does not have the effect of limiting the application of the Conventions and the Protocol to the cases mentioned above. Thus a unilateral declaration pursuant to Article 96 of Additional Protocol I by the representative authority of a people “fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination” may be enough to bring into force the Conventions and the Protocol, even though the authority is not a state power. More pertinently, Article 3 common to the Geneva Conventions enables parties to a non-international armed conflict to bring into force all or part of the Conventions and, by extension, all or part of Additional Protocol I supplementing the Conventions.

150 The Majority is aware that several international instruments exist outlawing “terrorism” in various forms. The Majority necessarily limits itself to the legal regime that has been developed with reference to conventional armed conflict between States, or between governmental authorities and organized armed groups, or between such groups within a State. In other words, the Majority proceeds on the understanding that the present case will have a basis, if at all, in the legal regime of the Geneva Conventions and the Additional Protocols and not in international efforts directed against “political” varieties of terrorism. The Majority would also note that “terrorism” has never been singly defined under international law. The first international attempt at codification of “terrorism“ was the 1937 League of Nations Convention for the Prevention and Punishment of Terrorism, 19 LNOJ 23 (1938), which however did not receive sufficient ratifications and was not pursued. Since that time the international community has followed a thematic approach to the characterization of international terrorism, with subject-specific conventions such as the 1963 Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft, 2 ILM 1042 (1963); the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft, 860 UNTS 105; the 1971 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, 974 UNTS 177; the 1973 Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, 13 ILM 41 (1974); the 1979 International Convention Against the Taking of Hostages, 18 ILM 1460(1979); 1997 International Convention for the Suppression of Terrorist Bombings, 37 ILM 249(1998); 1999 International Convention for the Suppression of the Financing of Terrorism, 39 ILM 270 (2000); and Convention on the Suppression of Acts of Nuclear Terrorism (in process of negotiation), UN Doc. A/C6/53/L4, Annex I (1998). This incomplete list of relevant. global instruments also does not include regional anti-terrorism agreements. Related resolutions of the UN General Assembly include the 1994 Declaration on Measures to Eliminate International Terrorism, UN Doc. A/RES/49/60, and the 1995 Measures to Eliminate Terrorism, UN Doc. A/RES/50/53 (“that criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to justify them“). The prohibition of terror against the civilian population in times of war, which (as discussed below) is given expression in Geneva Convention IV and the Additional Protocols, is another example of the thematic, subject-specific, approach to “terrorism”.

151 As will be seen, one of the Majority's conclusions is that proof of actual infliction of terror is not a legal element of the crime under any interpretation of Article 51 (2) of Additional Protocol I. This finding does not, of course, amount to a narrowing of the Tribunal's jurisdiction; on the contrary, the Majority's rejection of this supposed element proposed by the Prosecution leads to a broader definition of the offence.

152 TadićJurisdiction Decision, para. 94.

153 Reprinted in 8 ILM 679 (1969).

154 999 UNTS 171.

155 ČelebićiTrial Judgement, para. 408.

156 Id., para. 413. On the principle of legality see also Aleksovski Appeal Judgement, paras 126-7 (“the principle of nullum crimen sine lege … does not prevent a court, either at the national or international level, from determining an issue through a process of interpretation and clarification as to the elements of a particular crime“); and VasiljevićTrial Judgement, para. 193 (“the Trial Chamber must further satisfy itself that the criminal conduct in question was sufficiently defined and was sufficiently accessible at the relevant time for it to warrant a criminal conviction and sentencing under the criminal heading chosen by the Prosecution“).

157 See P58 (22 May Agreement), para. 2.5.

158 Id., para. 2.3.

159 Tradić Decision on Jurisdiction, para. 143. This was also the view of Security Council members. Speaking at a meeting of the Council on 25 May 1993, at which the Tribunal's Statute was adopted, France's representative commented that “the expression ‘laws or customs of war’ used in Article 3 of the Statute covers specifically, in the opinion of France, all the obligations that flow from the humanitarian law agreements in force on the territory of the former Yugoslavia at the time when the offences were committed” (UN Doc. S/PV.3217, p. 11). The representatives of the United States and the United Kingdom expressed the same view (Id., pp 15 and 19, respectively).

160 See ICRC Commentary, para. 4785: “Attacks aimed at terrorizing are just one type of attack, but they are particularly reprehensible. Attempts have been made for a long time to prohibit such attacks, for they are frequent and inflict particularly cruel suffering upon the civilian population.” (Emphasis added.) While the second part of 51(2) uses the expression “acts or threats of violence”, and not “attacks”, the concept of “attack” is defined in Article 49 of Additional Protocol I as “acts of violence.“

161 See the discussion in the preceding section on the crime of attack on civilians. See as well ICRC Commentary, para. 1923. The Trial Chamber also notes that in a 1995 decision on the applicability of Additional Protocol II to the conflict in Colombia, the Constitutional Court of Colombia accepted the customary-law status of Article 13 of the Protocol, including the prohibition against terror: Ruling No. C-225/95, excerpted in translation in M. Sassòli and A. A. Bouvier (eds.), How Does Law Protect in War? (Geneva: ICRC, 1999), p. 1366 (para. 30) (henceforth “Sassòli &Bouvier“).

162 Ojficial Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, 17 vols. (Geneva: ICRC, 1974-77) (henceforth “Records“).

163 The draft provision was then numbered 46.

164 Records, vol. XIV, p. 36.

165 Id., vol. XIV, pp 48-75.

166 The original formulation of the second part was: “In particular, methods intended to spread terror among the civilian population are prohibited.“

167 Records, vol. XV, p. 241.

168 Id., vol. XV, p. 274.

169 Id., vol. XV, pp 328-31.

170 Id.,vol. VI, p. 163.

171 Id., vol. VI, pp 161-2; see also vol. VII, p. 193.

172 Id, vol. VI, pp 164-8, 187-8 (FRG).

173 Id., vol. VI, p. 177. See also the comments of the Ukrainian Soviet Socialist Republic, Id., vol. VI, p. 201.

174 Id., vol. VII, pp 194 and 205, respectively.

175 Id., vol. VII, pp 191-251.

176 By 1992, when there were around 191 countries in the world, 118 States had ratified Additional Protocol I and five had signed the treaty without ratifying it. The State of Bosnia-Herzegovina succeeded to the Protocol on 31 December 1992. This information is available at the ICRC's web site: .

177 Tadić Jurisdiction Decision, para. 94.

178 See Art. 85(3) of Additional Protocol I.

179 Certain threats of violence would undoubtedly involve grave consequences. For example, a credible and well publicized threat to bombard a civilian settlement indiscriminately, or to attack with massively destructive weapons, will most probably spread extreme fear among civilians and result in other serious consequences, such as displacement of sections of the civilian population.

180 Trial of Shigeki Motomura and 15 Others, 13 Law R. Trials War Crim. 138 (“Motomura case“).

181 Id, pp. 138-9.

182 Decree No. 44 (1946), in Staatsblad van Nederlandsch-Indië, 1946.

183 “Systematische terreur” in original, which translates as systematic terror and not terrorism.

184 Motomura case, p. 140.

185 Id.,p. 143.

186 Id, p. 144.

187 Id, p. 140.

188 On the Commission on Responsibilities, see UN War Crimes Commission, History of the United Nations War Crimes Commission and the Development of the Laws of War (London: HMSO, 1948), Ch. III.

189 Cited in Id., pp. 33-4.

190 See, Id., pp. 34-5 (reproduction of the Commission's list of war crimes).

191 Id., p. 51.

192 Id., pp. 48-51 (summaries of cases heard).

193 Reproduced in Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials, London, 1945 (Washington D.C.: US Government Printing Office, 1949), p. 312.

194 Id, p. 390.

195 See 5 Law R. Trials War Crim. 94-97.

196 Armed forces manuals soon incorporated the prohibition. See, for example, United States Field Manual No. 27-10: The Law of Land Warfare (Washington D.C.: Department of the Army), para. 272 (1956); United Kingdom Manual of Military Law, Part III: The Law of War on Land (London: The War Office, HMSO), para. 42 (1958).

197 Criminal Code 1960 (Belgrade: Union of Jurists’ Associations, 1960), pp. 48-9, emphasis added.

198 See Criminal Code 1964, translated by M. Damaška (Beograd: Institute of Comparative Law), Art. 125. The words “use of measures of intimidation and terror” appear instead, a difference in translation.

199 Unattributed translation available at ICTY Library. The translation was checked against the original Code (Slu·beni list SFRJ, br. 44/76), also available at the ICTY Library.

200 P5.1 (translation). Other post-1977 military manuals from around the world cite terror as an impermissible means of warfare or refer to Article 51(2) of Additional Protocol I. See, for example, German Military Manual (Humanitäres Völkrerrecht in bewaffneten Konflikten-Handbuch), Section 451 (1992) (English translation available at ICTY library); New Zealand Interim Law of Armed Conflict Manual, Article 517 (1992); Soviet Minister of Defence Order No. 75 of 16 February 1990 on the Publication of the Geneva Conventions of 12 August 1949 relative to the Protection of Victims of War and their Additional Protocols, Article 5, para, (o) (1990) (French translation available at the ICRC's web site: .).

201 P5.1,p. 6.

202 Id., p. 11.

203 Id, p. 14.

204 Id., p. 18, emphasis added.

205 Id., p. 19.

206 Id., p. 29.

207 Id, p. 14.

208 Id., p. 15.

209 Id., p. 20.

210 The Criminal Code of 1990 was published in Slu·beni list SFRJ, br. 38/90 and is available at ICTY Library.

211 P82.1 (translation).

212 P276.1 (translation).

213 Id, p. 3.

214 Id,p. 1.

215 Id., p. 7 (emphasis added).

216 Id, p. 8.

217 Id, p. 8.

218 Para. 5 of the 22 May agreement, emphasis added.

219 The 22 May Agreement did not make explicit reference to Article 85 of Additional Protocol I (“repression of breaches“), although it incorporated the grave breaches regime by committing the parties to the terms of Geneva Conventions I and II (para. 2.1 of the 22 May Agreement). Subsequent agreements among the parties to the conflict, cited in the preceding section, also indicate an intention to prosecute those responsible for serious violations of international humanitarian law. See, e.g., Article 3(1) of the Programme for Action on Humanitarian Issues and Article 3 of the October Agreement.

220 Prosecutor v. R. Radulovic et al, Split County Court, Republic of Croatia, Case No. K-15/95, Verdict of 26 May 1997; excerpted in translation in Sassòli &Bouvier, pp 1263-8. The events considered in this case occurred between September 1991 and January 1993.

221 See Art. 85(3) (in part) of Additional Protocol I. See also ICRC Commentary, para. 1932 and para. 1941.

222 As stated in an earlier, the Majority has not considered it necessary to enter into discussion of “political” terrorist violence and of attempts to regulate it through international conventions. Nevertheless, for comparative purposes, it may be of interest that the 1999 International Convention for the Suppression of the Financing of Terrorism, 39 ILM 270 (2000), defines terrorism as including: “Art. 2:… (b) Any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.“

223 This is not to say that the factual allegations in the indictment concerning actual infliction of terror do not remain relevant to the case. These will be discussed later in the Judgement.

224 Certain States attempted to have intent substituted with actual infliction of terror: see the joint proposal by Algeria et al., Records, vol. Ill, p. 205, as well as the proposals by Mongolia (Id., vol. XIV, p. 53), Iraq ﹛Id., vol. XIV, p. 54), Indonesia (Id., vol. XIV, p. 55), and USSR (Id., vol. XIV, p. 73). Other States tried for “acts capable of spreading terror” (see, e.g., Ghana et al., Id., vol. III, p. 203). All these proposals failed and the intent requirement was kept.

225 Prosecution Pre-trial Brief, paras 25, 142-3; Defence Final Trial Brief, para. 888.

226 This is clear from the travaux préparatoires of the Diplomatic Conference. For example, Romania, Records, vol. Ill, pp. 200-1 (reprisals and other unlawful attacks); GDR, Id., vol. IV, p. 79 (reprisals or terror attacks); Indonesia, Id., vol. XIV, p. 55 (attack on the civilian population and the spreading of terror should be given “almost the same emphasis“); Ukrainian SSR: “Article (51( widens the scope of protection for the civilian population and individual civilians, who under no circumstances shall be the object of attack. In particular, paragraph 2 explicitly prohibits acts or threats of violence the primary purpose of which is to spread terror among the civilian population; this is in line with the generally recognized rules of international law, which lay down that Parties to the conflict shall not make the civilian population an object of attack” (Id., vol. VI, p. 201).

227 ICRC Commentary, para. 1940: “the Conference wished to indicate that the prohibition covers acts intended to spread terror.“

228 At the Diplomatic Conference, Egypt said that the words “intended to” in the original version should be replaced by some other expression “in view of the difficulty of establishing intent” (Records, vol. XIV, pp. 56-7). France responded that “In traditional wars attacks could not fail to spread terror among the civilian population. What should be prohibited in paragraph 1 is the intention to do so” (Id., vol. XIV, p. 65). The comments by Iran should also be noted: “Although objections had been raised to the phrase 'methods intended to spread terror’ in paragraph 1, methods of war undoubtedly did spread terror among the civilian population, and those used exclusively or mainly for that purpose should be prohibited” (Id., vol. XIV, p. 64). Reporting on its second session, Committee III stated: “The prohibition of acts or threats of violence which have the primary object of spreading terror’ is directed to intentional conduct specifically directed toward the spreading of terror and excludes terror which was not intended by a belligerent and terror that is merely an incidental effect of acts of warfare which have another primary object and are in all other respects lawful” (Id., vol. XV, p. 274, emphasis added).

229 Kunarac Appeal Judgement, para. 86; Tadić Appeal Judgement, para. 249; Tadić Jurisdiction Decision, para. 141.

230 Tadi ćAppeal Judgement, para. 249.

231 Tadi ćAppeal Judgement, para. 249 and 251.

232 Kunarac Appeal Judgement, para. 85.

233 Krnojelac Trial Judgement, para. 54; Kunarac Trial Judgement, para. 415.

234 Kunarac Trial Judgement, para. 416.

235 Id., para. 416 endorsed by Kunarac Appeal Judgement, para. 89.

236 Kunarac Appeal Judgement, para. 86 quoting Tadić Appeal Judgement, para. 251.

237 Kunarac Appeal Judgement, para. 86; Tadić Appeal Judgement, para. 251.

238 Kunarac Trial Judgement, para. 421, endorsed by Kunarac Appeal Judgement, para. 91.

239 Kunarac Appeal Judgement, para. 91.

240 Krnojelac Trial Judgement, para. 56; Kunarac Trial Judgement, paras 421-426.

241 Krnojelac Trial Judgment, para. 56; Kunarac Trial Judgement, para. 425; Tadi ć Trial Judgement, para. 638.

242 Krnojelac Trial Judgement, para. 56; Kupreški ć Trial Judgement, paras 547-549; Blaški ćTrial Judgement, para. 214; Jelisi ć Trial Judgement, para. 54.

243 Kunarac Appeal Judgement, para. 90.

244 Id.

245 Prosecution Final Trial Brief, para. 38.

246 Id., para. 38.

247 Id., para. 38.

248 Krnojelac Trial Judgment at para. 54.

249 Id., para. 88.

250 Id.

251 Id., para. 94.

252 Id., citing inter alia the discussion in Tadi ć Trial Judgement, para. 648.

253 Kunarac Appeal Judgement, para. 95; Kunarac Trial Judgement, para. 430.

254 Id.

255 Id. (and discussion thereof).

256 Id., para. 98.

257 Id., para. 102.

258 Id., para. 102.

259 Id., para. 103.

260 Krnojelac Trial Judgment, para. 59; Kunarac Trial Judgment, para. 434; BlaškićTrial Judgment, para. 251.

261 Vasiljevi ć Trial Judgement, para. 205; Krnojelac Trial Judgement, para. 324; Kordić Trial Judgement, para. 236; Kupreški ć Trial Judgement, paras 560-1; Rutaganda Trial Judgement, para. 80-1; Akayesu Trial Judgement, para. 589.

262 Čelebi ćiTrial Judgement, para. 439. The element of inflicting “serious injury” is expressed as infliction of “grievous bodily harm or serious injury” in, e.g., Vasiljević Trial Judgement, para. 205; Krnojelac Trial Judgement, para. 324

263 VasiljevicTrial Judgement, para. 234; Krnojelac Trial Judgement, para. 130; Kvočka Trial Judgement, para. 206; Kordićand Čerkez Trial Judgement, para. 269

264 Vasiljevi ćTrial Judgement, para. 234; Krnojelac Trial Judgement, par 130; Kayishema Trial Judgement, paras 151, 154.

265 Kvočka Trial Judgment, para. 208; Blaškic Trial Judgment, para. 239.

266 Vasiljevi ćTrial Judgement, para. 235; Krnojelac Trial Judgement, para. 131; Čelebi ćiTrial Judgment, para. 536; Jelisi ćTrial Judgment para. 57; Kunarac Trial Judgment, para. 501.

267 Vasiljevi ć Trial Judgement, para. 236; Krnojelac Trial Judgement, para. 132; Kayishema Trial Judgement, para. 153.

268 The Defence contends that cumulative charging under Counts 1 (Infliction of terror), 4 (attacks on civilians through sniping) and 7 (attacks on civilians through shelling) constitutes an error of law since, under all three Counts, the protected object is constituted by the civilian population and “illegal action against civilians can not be qualified as three different criminal offences only on the grounds of the armament from which [sic] the action is taken,” Defence Pre-Trial Brief, paras 8.18, 8.19, 8.24; Defence Final Trial Brief, paras 1099, 1101, 1102, 1104.

269 Čelebi ćiAppeal Judgement, para. 400; see also Kupreškić Appeal Judgement, para. 385.

270 Čelebi ći Appeal Judgment, para. 412.

271 Čelebi ćiAppeal Judgment, para. 413.

272 Jelisi ćAppeals Judgment, para. 82. Article 3 of the Statute requires a close link between the acts of the accused and the armed conflict; that element is not required for crimes under Article 5. Article 5 requires proof that the act of the Accused formed part of a widespread or systematic attack against a civilian population; that element is not required for crimes falling under Article 3 of the Statute. It follows that each crime under these Articles has a distinct material element to be proven at trial not required by the other. The test is met and it is permissible to cumulatively convict under both statutory provisions.

273 Indictment, para. 10.

274 Id., para. 11.

275 Id., para. 10.

276 Furundžija Trial Judgement, para. 189, Kupreškić Trial Judgement, para. 746; Kunarac Trial Judgement, para. 388, Krstić Trial Judgement, para. 602.

277 Cf. Article 6(1) of the Statute of the ICTR. See also the Prosecution Pre-trial Brief (paras 69 etseq.) and the Defence's submissions on Article 7 in its Pre-trial Brief (paras 6.1-6.35).

278 Akayesu Trial Judgement, para. 480. See also Blaškic Trial Judgement, para. 279; Kordić trial Judgement, para. 386 quoting the Akayesu Trial Judgement.

279 Akayesu Trial Judgement, para. 473.

280 If the person planning a crime also commits it, he or her is only punished for the commission of the crime and not for its planning, Kordić Judgement, para. 386 (quoting the Blaškić Trial Judgement, para. 278).

281 Akayesu Trial Judgement, para. 482; Blaškic Trial Judgement, para. 280; Kordić trial Judgement, para. 387.

282 Kvočka Trial Judgement, para. 252, citing Kordić Trial Judgement, para. 387.

283 Kvočka Trial Judgement, para. 252, citing Kordić Trial Judgement, para. 387.

284 Krstić Trial Judgement, para. 601, citing Akayesu Trial Judgement, para. 483; Blaškic Trial Judgement, para. 281; Kordić Trial Judgement, para. 388.

285 Kvočka Trial Judgement, paras 250-1.

286 Tadić Appeal Judgement, para. 188.

287 Aleksovski Appeal Judgement, paras 162-4.

288 Tadić Appeal Judgement, para. 188.

289 Blaškić trial Judgement, para. 337.

290 Defence Pre-trial Brief, paras 6.3-6.4.

291 Čelebići Trial Judgement, para. 341, quoted in Blaškić trial Judgement, para. 238.

292 Rule 61 Decision of 13 September 1996, Case No. IT-95-12, Prosecutor v. Ivica Rajić, paras 59-61; Kordić Trial Judgement, para. 388; Martinovic Trial Judgement, para. 61; see also Abbaye Ardenne case (Trial of SS Brigadenfuhrer Kurt Meyer), Case n. 22, Canadian Military Court in Aurich (Germany), in Law Reports of Trials of War Criminals, volume IV, pp 97-112, stating that “[t]here is no evidence that anyone heard any particular words uttered by the accused which would constitute an order, but it is not essential that such evidence be adduced. The giving of the order may be proven circumstantially; that is to say, you may consider the facts you find to be proved bearing upon the question whether the alleged order was given, and if you find that the only reasonable inference is that an order […] was given by the accused at the time and place alleged, and that the [order was complied with], you may properly find the accused guilty.” Inferences of this kind were also drawn by the International Military Tribunal for the Far-East sitting at Tokyo, Japan (IMTFE); see section “Massacres were ordered” in Röling and Rüter (eds.), The Tokyo Judgement, Amsterdam, 1977, vol. I, page 400, where massacres of prisoners of war were inferred to have occurred in various detention camps based on only one order in relation to one camp coupled with testimonies with regard to other camps

293 See Čelebići Trial Judgement, para. 384-6; Blaškić Trial Judgement, para. 307. Some of these factors were cited in the UN Commission of Experts, Final Report, S/1994/627, 27 May 1994.

294 Kvoćka Trial Judgement, para. 251, citing Tadić Trial Judgement, para. 688 and Čelebići Trial Judgement, para. 327.

295 Čelebići Trial Judgement, para. 328.

296 Čelebići Trial Judgement, para. 346; Aleksovski Trial Judgement, para. 69; Blaškić Trial Judgement, para. 294; Kordić Trial Judgement, para. 401; Kunarac Trial Judgement, para. 395, Krstić Trial Judgement, para. 604; Kvočka Trial Judgement para. 314.

297 Čelebići Appeal Judgement, paras 255-6.

298 Id., paras 192, 256.

299 Id., para. 197.

300 Čelebići Trial Judgement, para. 386, quoting the Commission of Experts Report, p. 17.

301 Čelebići Appeal Judgement, para. 238.

302 Id., para. 238.

303 Id., para. 239.

304 Čelebići Trial Judgement, para. 395.

305 Krnojelac Trial Judgement, para. 173; see also Krstić Trial Judgement, para. 652.

306 The video interview is contained in a CD-rom marked with the ERN number V000-0120.

307 In its Final Trial Brief, the Prosecution elaborated the notion of a “campaign”, to the extent of alleging that it was “covert” (para. 62), that it had an “intensity” which was “modulated” (para. 67) and was “sensitive to international pressure” (para. 68), that it featured “widespread indiscriminate shelling” (para. 163), and that it was “widespread and systematic” (para. 571). In its closing arguments, the Prosecution associated the notion of “campaign” with a “pattern of behaviour”, “resources … marshalled to achieve a particular objective”, “degree of planning”, “allocation of assets”, and so forth (T. 21991-2). The Trial Chamber does not find any of these submissions as substantially adding essential elements to the notion of “campaign” referred to in the Indictment.

308 Prosecution Pre-Trial Brief, 3.

309 Defence Final Trial Brief, para. 11; Acquittal Motion, para. 11.

310 Indictment, counts 2 to 4.

311 See for instance Scheduled Sniping Incident 15.

312 The Oxford English Dictionary (2nd edition, 1991) defines “to snipe” as “to shoot or fire at (men, etc.) one at a time, usually from cover and at long range.” The Collins Shorter Dictionary and Thesaurus (1995) gives this variety: “to shoot at enemy from cover.“ Webster's New Universal Unabridged Dictionary (1996) has it as “to shoot at individuals as opportunity offers from a concealed or distant position.“

313 Witness DP36, T. 18103.

314 Kovač, T. 836-7.

315 Briquemont, T. 10165-6.

316 Hamill, T. 6060.

317 Hamill, T. 6156.

318 P3675, p. 8; Hamill, T. 6208-10. Milenko Indie, liaison officer of the SRK, referred to “sniping” even more broadly, indicating that all infantry weapons were referred to as snipers during the war: T. 18570.

319 Indictment, para. 15.

320 Prosecutor v. Stanislav Galić, Decision [Appeals Chamber] on Application by Defence for Leave to Appeal, 30 November 2001, para. 16.

321 Indictment, para. 4(a), see Annex A.

393 See Indictment, para. 4 (a).

394 Defence Final Trial Brief, para. 11 ( omitted).

395 Id., para. 13.

396 Id., paras 837-849.

2088 Radinović Report, para.178.

2089 Radinović Report, paras 185 et seq

2090 Philipps,T. 11530-1.

2091 Mole, T. 10991.

2092 Henneberry, T. 8595.

2093 DP17, T. 16819.

2094 Witness Y, T. 10886.

2095 DP34. T. 17908: durine his Corns 1 DP34, T. 17908: during his Corps briefings, General Galić was always very calm, even when discussions arose about whether his orders had been fully complied with.

2096 DP17, T. 16791-2; DP35, T. 17519-20, Radinović Report, Filing Page number 8023 (Order for undisturbed passing of humanitarian aid, delivery, by General Galić, dated 15 May 1993).

2097 Fraser, T. 11199-11200.

2098 The relationship between the two men was one of a deciding senior commander to an obedient and disciplined subordinate (Tucker, T. 9910 — closed session).

2099 Fraser, T. 11201; General Galić seemed to work well with his direct superior; Mladić had the authority to approve the humanitarian convoys (Indjic, T. 18542,18654) and he relied on the Corps commander to ensure safe passage to all the convoys (Indjic, T. 18673, 18768).

2100 Philipps, T. 11531. Philipps referred to a letter signed by Dragomar Milošević indicating General Galić's departure. General Galic's chiefs of staff were Dragan Marcetic from September 1992 to June 1993 and Milošević from June 1993 to August 1994, Philipps, T. 11531; see also T. 446-9, 453-4.

2101 See map C2 marked by DP35 showing the Forward Command Posts.

2102 Radinović Report, para. 200. According to the Defence military expert Radinović, usually, such high ranking commands are stationed within the operative depth and at a safe distance.

2103 Prosecution Final Trial Brief, para. 94; Defence Final Trial Brief, para. 18; Defence Pre-trial Brief, para. 2.20.

2104 Prosecution pre-Trial Brief, para. 4.

2105 Prosecution pre-Trial Brief, para. 35.

2106 Prosecution Pre-Trial Brief, para. 35.

2107 Prosecution Final Trial Brief, para. 86; The Prosecution seeks to establish the Accused's guilt by reliance upon various bodies of complementary and corroborative evidence, such as General Galić's high degree of command and control generally, and admission and threats made by him that he was indeed deliberately targeting civilians, either specifically or by indiscriminate fire, Prosecution Pre-trial Brief, para. 85-91; Prosecution Final Trial Brief, para. 2.

2108 Defence Pre-trial Brief, para. 7.14.

2109 Prosecution Final Trial Brief, para. 95.

2110 Defence Final Trial Brief, para. 24.

2389 DP34, T. 17867.

2390 DP34, T. 17868.

2391 See supra, para 174.

2392 The SRK was composed of 18,000 troops while the ABiH numbered approximately twice that number of troops.

2393 DP17, T. 16764, 16820, 16820; see also DP6, T. 14071, DP4, T. 14215-6.

2394 Radinović Report; see, for example, Ex. D1492.1 (Order signed by General Galić dated 15 September 1993).

2395 DP17, T. 16865.

2396 DP17, T. 16764, T. 16866.

2397 DP17, T. 16828, 16830: the witness also stated that it is “entitled to repeat” standing orders to ensure compliance.

2398 Exhibit D1492 is an order by General Galić to his troops dated 15 September 1993; one of the items of the order concerns a reminder to comply with the Geneva Conventions.

2399 DP35, T. 17620.

2400 DP14, T. 15905.

2401 DP34, T. 17920.

2402 Briquemont, Briquemont T. 10057-8, stated that “Not one single political leader, whether Serb, Croat or Muslim, ever came out against that sniper activity in public“ see also Harding, T. 4477.Google Scholar

2403 DP35, T. 17647-8.

2404 DP34, T. 17922.

2405 Id.

2406 Id.

2407 DP34, T. 17923.

2408 Id.

2409 DP34, T. 17924, 17826.

2410 DP10, T. 14390-1.

2411 DP9, T. 14510.

2412 DP9,T. 14511-2.

2413 Id.

2414 Gardemeister, T. 8953; the exact location was Skenderija, Gardemeister, T. 8975.

2415 Gardemeister, T. 8953-4: he travelled to Vogosca where he met the SRK Chief of Staff (Milošević), and Colonel Milovanović, who was the responsible commander of two brigades in the north. He was given permission to travel, together with a liaison officer, Colonel Bartula, to the site where they thought the fire had originated. He noted there was a direct line to the French UNPROFOR camp and concluded that the fire originated from that position because (i) the calibre used was not normally used by the ABiH; (ii) the direction fitted the BSA position; and (iii) there was no record of outgoing Abih mortar or artillery fire in UNMO logbooks at the relevant time. When he informed the Bosnian Serb Army Colonels of his conclusion, Colonel Bartula denied that the Bosnian Serb Army positions had fired the artillery shots, and said: “you can report whatever you want, but we are not to blame, it is the Bosniak side to blame.“

2416 Gardemeister, T. 8954.

2417 Indjic, T. 18687; T. 18565-6.

2418 Prosecution Final Trial Brief, para. 192.

2419 The Prosecution claims that circumstantial evidence such as admissions by senior subordinates, “and independently, in conjunction with evidence to the effect that the Accused enjoyed a disciplined chain of command and an effective chain of communication“ (Prosecution's Final Brief, para. 192) corroborate the evidence that allows the inference that the Accused was simply acting in accordance with a pre-established plan.

2420 Donta Report, p. 11.

2421 Donia Report, p. 13.

2422 P3683 (minutes of meeting with presidents of municipalities in the zone of responsibility of the “division of the 1st Partizan Brigade“), p. 3.

2423 P3683, p. 4.

2424 Abdel-Razek, T. 11600-1, 11644.

2425 Witness W, T. 9607-08

2426 Carswell, T. 8345.

2427 O'Keeffe, T. 9184-6.

2428 Henneberry, T. 8590-1.

2429 Mole, T. 9836-7.

2430 Ashton, T. 1295.

2431 Ashton, T. 1296.

2432 Henneberry, T. 8577-8.

2433 Henneberry, T. 8579.

2434 Henneberry, T. 8579-80 (“orders were usually transmitted verbally,” T. 8580).

2435 Henneberry, T. 8561.

2436 Henneberry, T. 8557-9, T. 8572.

2437 Henneberry, T. 8604.

2438 Prosecution Final Trial Brief, para. 86.

2439 Defence Final Trial Brief, para. 522.

2440 Defence Final Trial Brief, para. 534.

2441 See in Radinović Report, filing page number 8023.

2442 Fraser recalled in particular that incident when SRK snipers along the “Sniper Alley” made their position known to the French soldiers of the SFOR.

2443 Bergeron, T. 11268.

2444 Prosecution Final Trial Brief, paras 778-81.

2445 “The measure of the Accused's criminality, comprises the fact of injury and death to the civilians who were the direct victims of the campaign, the mental suffering in the form of the terror occasioned to them and other civilians as a result of the campaign, and the physical impact on the ordinary lives of civilians during the indictment period as they survived under the constant threat of being shelled or sniped. Further, it is relevant to take into account the lasting effects of the campaign on the survivors.” For instance, Jusfovic said of the lasting effects of the terror: “The traumas have affected all of us, including the fire fighters. It was a traumatic experience. The first time that ten of us fire fighters went to Austria, in Split, we walked around and this was in 1998. We were walking along the seaside and a ship anchored, and we heard a whistle. And we all threw ourselves to the ground. People thought that we had gone mad. We thought it was a shell. So you see, the memory stuck in our minds,” (T. 6541), Prosecution Final Trial Brief, para. 778.

2446 Prosecution Final Trial Brief, para. 779.

2447 Id, para. 780-1.

2448 Defence Final Trial Brief, paras 1129-1140.

2449 Id., para. 1142; Closing argument, T. 21870.

2450 Defence Final Trial Brief, para. 1144.

2451 Id, para. 1145.

2452 Id., para. 1146.

2453 Id, paras 1147-8.

2454 Id, para. 1149.

2455 Id, paras 1151-3.

2456 Article 23 states, in pertinent part, that “1. The Trial Chambers shall pronounce judgements and impose sentences and penalties on persons convicted of serious violations of international humanitarian law.“

2457 Article 24 states: “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.“

2458 Rule 87(C) states “ ?igf the Trial Chamber finds the accused guilty on one or more of the charges contained in the indictment, it shall impose a sentence in respect of each finding of guilt and indicate whether such sentences shall be served consecutively or concurrently, unless it decides to exercise its power to impose a single sentence reflecting the totality of the criminal conduct of the accused.”

2459 (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 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.

2460 Aleksovski Appeals Judgment, para. 185; Čelebi ćiAppeal Judgement, para. 806; Tadić Sentencing Appeal Judgement, para. 48.

2461 Blaški ćTrial Judgement, paras 779-80; Kvočka Trial Judgement, para. 704.

2462 Kvo čka Trial Judgement, para. 701; citing the Trial Chamber in the Čelebi ćicase which stated that the gravity of the offence was “[b]y far the most important consideration, which may be regarded as the litmus test for the appropriate sentence,” Čelebi ćiTrial Judgement, para. 1225.

2463 Čelebi ćiAppeal Judgement, para. 741.

2464 Kvočka Trial Judgement, para. 701, citing the Čelebi ćiTrial Judgement, para. 1226, Erdemovi ćAppeals Sentencing Judgement, para. 15; Kambanda Sentencing Judgement, para. 42; Kayishema Trial Judgement, para. 26; Kordi ć Trial Judgement, para. 852.

2465 Krsti ć Trial Judgement, para. 704.

2466 See supra, Blaški ć Trial Judgement, paras 779-80; Kvočka Trial Judgement, para. 704.

2467 Plasvic Sentencing Judgment, para. 84.

2468 Kunarac Trial Judgement, para. 868.

2469 Jelisi ć Trial Judgement, para. 124, Furundžija Trial Judgement, para. 284.

2470 The Trial Chamber bears in mind that” [t]he same elements should not be reviewed a first time as a constitutive element of the crime and a second time as an aggravating circumstance,” Krsti ć TrialJudgement, para. 707.

2471 Vasiljevi ć Trial udgement, para. 278.

2472 Krsti ć Trial Judgement, paras 705 et seq; see also ČelebićiAppeal Judgement, para. 847.

2473 Kvočka Trial Judgement, para. 705.

2474 Čelebi ćiAppeal Judgement, para. 763.

2475 Tadi ćAppeals Sentencing Judgement, para. 21.

2476 Article 41(1) of the Criminal Code of the SFRY (adopted on 28 September 1976, entered into force on 1 July 1977) states (in translation); “The court shall determine the sentence for the perpetrator of a given crime within the limits prescribed by the law for this crime, bearing in mind the purpose of the punishment and taking into account all the circumstances that could lead to this sentence being more or less severe, in particular: the degree of criminal responsibility, the motives of the crime, the degree of the threat or damage to protected property, the circumstances under which the crime was committed, the background of the perpetrator, his personal circumstances and behaviour after the commission of the crime as well as other circumstances which relate to the character of the perpetrator.“

2477 See Chapter XVI of the Criminal Code of the former Yugoslavia “Crimes Against Humanity and International Law,” Articles 141 and 142(1) dealt with the crimes of genocide and other war crimes committed against civilians. See also Articles 142-156 and Articles 38 “Imprisonment,” 41 “Sentences,” and 48 “Coincidence of several offences.” Crimes against peace and international law, including the crime of genocide and war crimes against a civilian population, were punishable by a sentence of 5-15 years in prison, by the death penalty or by 20 years in prison if a prison sentence was substituted for the death penalty.

2478 Kordić Trial Judgement, para. 849.

2479 Kvočka Trial Judgement, para. 700.

2480 Fraser stated that “to get inside to a target who is surrounded by non-combatants [is] a soldier's worst nightmare,” T. 11238.

2481 Tucker stated that:” To put it bluntly, the more suffering the better because that played to the television cameras and would ultimately lead to the pressure that they wanted in order to achieve international intervention.” Tucker, T. 10030-1.

2482 The Prosecution is unclear in its formulation of a sentence but uses the plural “life sentences”. The Chamber considers that the Prosecution suggests a life imprisonment sentence for each proven offence.

1 Fraser, T. 11238.[…]

72 See for example Tadi ćExtension of Time-Limit Appeal Decision at para. 73; Čelebi ćiTrial Judgment at para. 601, Jelisi ć Trial Judgment at para. 108. See also Akayesu Trial Judgment at para. 319.

73 These incidents are scheduled sniping incidents 2, 3, 8, 16, 17, 20, 22 and 23 as well as scheduled shelling incidents 1,2 and 5.[…]

370 In doing so, I am mindful that the word “campaign” as used in the Judgment broadly covers “military actions in the area of Sarajevo during the Indictment Period involving widespread or systematic shelling and sniping of civilians resulting in their death or injury.“ Para. 181 of Judgment.

371 Para. 9 of this Opinion.

372 Ex. P3731 (Expert report by Ewa Tabeau and others) at p. 5.

373 To be precise, these authors estimated that the total actual number of Muslims killed in ABiH-controlled territory during the Indictment Period was 4,352. Ex. P3731 (Expert report by Ewa Tabeau and others) at p. 48.

374 Ex. P3731 (Expert report by Ewa Tabeau and others) at p. 27.

375 Ex. P3731 (Expert report by Ewa Tabeau and others) at p. 27. No corresponding figures were provided for the monthly number of civilians injured.

376 See for example Prosecution Final Brief at para. 137.

377 The survival skills developed by civilians in Sarajevo would account for part of this significant decrease.

378 Para. 7 and 13 of this Opinion.

379 Para. 123 - 124 of Judgment.

380 Witness AD, T. 10686 - 10687.

381 Para. 138 of Judgment.

382 Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993) at para. 34. See also Ojdanic Interlocutory Appeal Decision at para. 9.

383 Vasiljevi ć Trial Judgment at para. 196.

384 Ojdanic Interlocutory Appeal Decision at para. 9.

385 Ojdanic Interlocutory Appeal Decision at para. 10.

386 Vasiljevi ć Trial Judgment at para. 201.

387 Count 1 of the Indictment.

388 Para. 97 and 113 of Judgment.

389 Para. 127 of Judgment. The Majority apparently interprets the Tadić Jurisdiction Decision to mean that an offence may fall under the jurisdiction of the Tribunal, even if it did not exist as a form of liability under international customary law, by application of any treaty which was unquestionably binding on parties at the time of the alleged offence and which was not in conflict or derogated from peremptory norms of international law. Such an interpretation departs from the established jurisprudence of the Tribunal, as previous Trial Chambers and the Appeals Chamber have consistently sought confirmation that a particular offence existed as a form of liability under international customary law before concluding that it fell within the jurisdiction of the Tribunal. See for example Vasiljević Trial Judgment at para. 193 et seq. ; Krnolejac Trial Judgment, para. 177 et seq. and para. 350 et seq. ; Kunarac et al. Trial Judgment at para. 518 et seq.; Celibici Trial Judgment at para. 414 -418; Kunarac et al Appeal Judgment at para. 124 and 146-148; Furundžija Appeal Judgment at para. 111.

390 See para. 96 of Judgment quoting Article 51 (2) of the Additional Protocol I and the 22 May Agreement.

391 The Geneva Conventions and Additional Protocols provide rules regarding the conduct of hostilities during a conflict. Violations of only a selected number of these provisions are described as “grave breaches” by these instruments and entail individual criminal responsibility. See for example Article 147 of the 1949 Geneva Convention IV and Article 85 of Additional Protocol I.

392 See for example para. 114 - 122 and 126 of Judgment and Prosecution Pre-Trial Brief at para. 141.

393 Para. 596 of Judgment.'

394 Para. 598 - 599 of Judgment.

395 Para. 749 of Judgment.

396 See for example Ex. D205.1 (Order signed by General Galic dated 15 May 1993) and Ex. D1492.1 (Order signed by General Galić dated 15 September 1993).

397 Those witnesses are Witness DP4, Witness DP5, Witness DP6, Witness DP8, Witness DP9, Witness DP10, Witness DPI 1, Witness DP14, Witness DP16, Witness DP17, Witness DP20, Witness DP23, Witness DP34, Gordan Vukovic, Sinisa Krsman and Vaso Nikolic.

398 Ex. D201.1 (Letter from General Galić to UNPROFOR dated 28 November 1992) and Ex. D255.1 (Order signed by General Galić dated 20 August 1993).

399 Para. 745 of Judgment.

400 Henneberry, T. 8590-8591.

401 Henneberry, T. 8677.

402 Henneberry, T. 8680.

403 This UN representative recalled only that “there was a general perception that other events within Bosnia were key pressure points which, if events were not going according to the Serb side's plans, the city of Sarajevo, which was to all intents and purposes in a hostage situation, would be used as a counter pressure point for the events elsewhere in Sarajevo.” Mole, T. 10988.

404 Para. 743 of Judgment.

405 Para. 743 of Judgment.

406 Abdel-Razek, T. 11596.

407 Para. 13 of this Opinion. The Majority also argues that the testimony of SRK soldier Witness DP35 helps establish that SRK troops fired “either in a deliberately indiscriminate manner or specifically against civilians” in the area of the airport. Para. 743 of Judgment. I respectfully submit that the Majority's interpretation of the evidence is incorrect. Witness DP35 was questioned extensively about the shooting taking place in the area of the airport and explained that the SRK believed that some of the persons in that area were trying to smuggle explosives into the city; he remembered in particular that on one occasion in March 1993, a lorry containing ammunition had exploded after being hit at night as it tried to cross the runway. Witness DP35, T. 17670 - 17671. Witness DP35 also testified that SRK soldiers posted in the area did not have night-sights and could not tell if, among the soldiers crossing the runway, there were civilians. Witness DP35, T. 17604 - 17605.

408 Para. 168 of Judgment.

409 Para. 170 of Judgment.

410 Para. 745 of Judgment (emphasis added).

411 Para. 749 of Judgment (emphasis added).

412 Krnojelac Trial Judgment at para. 92.

413 See for example para. 615 - 619, 657, 667 - 668, 677 - 678, 711 and 714 of Judgment.

414 Para. 765 of Judgment.

415 Para. 749 of Judgment.

416 See for example paras 9 - 14 of this Opinion

417 Fraser, T. 11238.