1. The Third Amended Indictment alleges that three people were seriously injured. In its Rule 98bis Decision, the Trial Chamber found that there was not enough evidence capable of sustaining a conviction in respect of Nikola Jovic on Count 2, cruel treatment.
2. Indictment, paras 3 and 12.
3. Jokic Sentencing Judgement. The Judgement is presently pending appeal. Admiral Jokic, Captain Kovacevic, the Accused and a fourth named indictee were originally charged together in February 2001 for violations of the laws or customs of war committed by alleged attacks on Dubrovnik between 1 October and 31 December 1991. The charges against the fourth individual were withdrawn in July 2001, and the cases against the remaining three were eventually separated.
4. Rule 87(A) of the Rules provides, in its relevant part: “[…] A finding of guilt may be reached only when a majority of the Trial Chamber is satisfied that guilt has been proven beyond reasonable doubt.”
5. Celebici Appeals Judgement, para 458.
6. Naletilic Trial Judgement, para 10; Vasiljevic Trial Judgement, para 21.
7. Aleksovski Appeals Judgement, para 62.
8. Exhibit P20, tab 9 (Badinter Commission Opinion No. 1). The SFRY was composed of six republics: Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Serbia and Slovenia.
9. See infra, para 15. Republic of Slovenia Assembly Declaration of Independence, 25 June 1991.
10. UNSC Resolution 713 (1991) of 25 September 1991; UNSC Resolution 721 (1991) of 27 November 1991; UNSC Resolution 724 (1991) of 15 December 1991; EC Declaration on the Situation in Yugoslavia, adopted at the Extraordinary EPC Ministerial Meeting, The Hague, 5 July 1991(EC Press Release p 61/91); Memorandum of Understanding on the Monitor Mission to Yugoslavia, 13 July 1991 (Review of International Affairs, Vol. XLII (5.X-5. XI 1991), p 21.
11. In this section, the Chamber has taken judicial notice of facts of common knowledge pursuant to Rule 94 (A) of the Rules, which provides: “A Trial Chamber shall not require proof of facts of common knowledge but shall take judicial notice thereof”.
12. JNA is the acronym for “Jugoslavenska Narodnra Armija”
13. Exhibit P204 (Expert Report of Milovan Zorc). Command and control of the armed forces was executed by the Federal Secretary of National Defence in accordance with the authority invested in him by the SFRY Presidency. In the event of the Federal Secretary’s absence, the chief of the General Staff acted as his deputy.
14. Also referred to as the Minister of Defence.
15. Admiral Jokic, T 3869-3870; 4111 -4113.
16. Exhibit P20, tabs 2, 3, 4; Ljerka Alajbeg, T 672-674.
17. Ljerka Alajbeg, T 672-674.
18. Ljerka Alajbeg, T 672-674; Nikola Samardzic, T 970.
19. Ljerka Alajbeg, T 671; T 2829. On 5 December, 1991 the Croatian Parliament declared that it would no longer recognize the authorities in Belgrade: “ In accordance with the decision of the Assembly of the Republic of Croatia of 8 October 1991, by which the legitimacy and legality of all bodies of the former Socialist Federal Republic of Yugoslavia was revoked, the Assembly of the Republic of Croatia does not recognise, and rejects all activities by Ante Markovic, Prime Minister of the former federal government and Budimir Loncar, a minister in that government, that could have consequences of any kind for the Republic of Croatia”: P20, tab 8, Decision dated 5 December 1991, para 8. See also Ljerka Alajbeg, T 2830-2831.
20. Ljerka Alajbeg, T 2796-2797; Exhibit  P20, tab 7.
21. See infra, paras 26 and 27.
22. Minister Rudolf during his testimony stated that by 28 November 1991 Vukovar had fallen, T 5476-5477. Paul Davies testified that there was large scale fighting in Vukovar, T 573.
23. Admiral Jokic, T 4522-4528.
24. Declaration on the Occasion of the Ceremonial Opening of the Conference on Yugoslavia, Peace Palace, The Hague, 7 September 1991.
25. Memorandum of Understanding on the Monitor Mission to Yugoslavia, 13 July 1991(Review of International Affaris, Vol XLII (5.X-5.XI 1991), p 21. The EC established the European Commission Monitor Mission (ECMM) in Croatia to broker a ceasefire between the parties with the aim of putting an end to the siege of the JNA barracks, Per Hvalkov, T 2236.
26. Declaration on the Occasion of the Ceremonial Opening of the Conference on Yugoslavia, Peace Palace, The Hague, 7 September 1991. Nikola Samardzic recalls meeting the President of the Republic of Croatia, Franjo Tudjman and the President of the Republic of Montenegro, Momir Bulotavic during the conference in The Hague, T 1185-1188.
27. EC Declaration on the Suspension of the Trade and Cooperation Agreement with Yugoslavia, Rome, 8 November 1991. Previously, on 25 September 1991, the UN had imposed an arms embargo against all the former Yugoslavia. See, UNSC Resolution 713 (1991) of 25 September 1991.
28. The so called Vance Peace Plan on the UN peacekeeping operation in Yugoslavia was submitted to the UN Security Council as an annex to the Report of the Secretary General Boutros Boutros Ghali to the UN Security Council (UN Doc S/23280, Annex).
29. Ljerka Alajbeg, T 689-691. See Opinion No 5, Exhibit P20, tab 9. Croatia had not incorporated into its constitution the adequate protection of national minorities’ rights, Ljerka Alajbeg, T 690.
30. Ljerka Alajbeg, T 686. A number of states recognized Croatia as an independent state before EC recognition, among which: the Holy See, Latvia, Estonia and San Marino, Ljerka Alajbeg, T 685.
31. Exhibit P14 (Expert Report of Dr John Allcock), p 1.
32. John Allcock, T 527-528; see Annex III.A.
33. The terms “city” or “town” are used interchangeably throughout the judgement.
34. John Allcock, T 467-470; see Annex III.C and III.D.
35. Exhibit P14, p 6.
36. Exhibit P14, p 2.
37. Exhibit P14, p 3.
38. Exhibit P14, p 5.
39. Exhibit P14, p 16.
40. See generally, John Allcock, T 461-464.
41. John Allcock, T 472.
42. In fact the TO existed within the framework of the SFRY forces, Admiral Jokic, T 4604-4607.
43. Minister Rudolf, T 5730-5731.
44. Admiral Jokic, T 4607-4618.
45. Admiral Jokic, T 4613.
46. See infra, para 383.
47. Exhibit P204, pp 7 and 28.
48. See infra, para 386.
49. Admiral Jokic, T 3840-3841; T  3863-3867; T 4421; Captain Pepic, T 7473-7475; Lieutenant-Colonel Stojanovic, T  7792-7793.
50. Lieutenant-Colonel Pavicic, T 6893-6894; Lieutenant Lemal, T 7336-7337; 7385; Admiral Jokic, T 4390.
51. Attacks on the facilities and members of the JNA in Croatia had taken place even before August, e.g. an incident in May 1991 in front of the headquarters of the naval military district in Split, when a soldier was strangled and killed in an armoured tank: Admiral Jokic, T 4370.
52. Admiral Jokic, T 4372-4375; Slobodan Novakovic, T 6810-6813; Lieutenant-Colonel Durasic, T 6954; Adrien Stringer, T 309.
53. Admiral Jokic, T 4372-4375.
54. Admiral Jokic, T 4372-4375.
55. Admiral Jokic, T 4433-4434.
56. Captain Negodic, T 5150; see Annex III.A.
57. Nikola Samardzic, T 997-1000; T 1268-1271.
58. Captain Negodic, T 5164-5165.
59. Captain Drljan T 7689-7690.
60. Captain Drljan, T 7685-7686.
61. Lieutenant-Colonel Durasic, T 6954 -6955.
62. On 29 September 1991 the Commander Jevrem Cokic issued a draft directive for an attack and addressed it to the General Staff of the SFRY, Colonel General Blagoje Adzic, for confirmation (D44). According to the established procedure, the General Staff was to confirm the directive and a subsequent order was to be issued by the Commander of the 2 OG to all subordinate units, pursuant to the order from the General Staff. Admiral Jokic testified that there was another directive dated 30 September 1991, which was similar in terms of the objectives, tasks and commands to those specified in Exhibit D44, T 4441- 4443.
63. Admiral Jokic, T 4436-4437; Exhibit D44.
64. Exhibit D44, para 1.
65. Admiral Jokic, T 4438.
66. Admiral Jokic, T 4439; Exhibit D44, para 2 (a).
67. Admiral Jokic, T 4439; Exhibit D44, para 2 (b).
68. Admiral Jokic, T 4439-4440; Exhibit D44, para 2 (c).
69. Admiral Jokic, T 4440; Exhibit D44, para 2 (d).
70. Admiral Jokic, T 4440; Exhibit D44, para 2 (e).
71. Admiral Jokic, T 4440; Exhibit D44, para 5.
72. Admiral Jokic, T 4441; Exhibit D44, para 6 (c).
73. Admiral Jokic, T  3823-3825.
74. Lieutenant-Colonel Durasic, T  6954.
75. Adrien Stringer, T 310.
76. “Ustasha” is a negative term and was used to denote the independent military formations of the independent state of Croatia in WWII. In 1991, it was a serious word to use. Montenegrin politicians started to use this term in 1991 to refer to the entire Croatian population: Nikola Samardzic, T 970. The Defence’s position is that the official terminology used by the Federal Secretary of National Defence and the Chief of General Staff of the SFRY armed forces was that Croatian paramilitary units should be referred to as “Ustashas”. See Defence Final Brief, para 58.
77. Nikola Samardzic, T 992-993.
78. Exhibit P27.
79. Exhibit P28, para 2; Nikola Samardzic, T 995-997.
80. Nikola Samardzic, T 983-984.
81. Captain Negodic, T 5155.
82. Mato Valjalo, T 1998-1999; see also Captain Negodic, T 5155.
83. Mato Valjalo, T 2053; T 2082.
84. Nikola Jovic, T 2920-2921.
85. Nikola Jovic, T 2923.
86. Captain Drljan, T 7686-7687.
87. Captain Drljan, T 7687-7689; Exhibit D105.
88. Exhibit P121; Admiral Jokic, T 3955-3958.
89. Exhibit P121.
90. Lieutenant-Colonel Stojanovic, T 7795-7797.
91. Witness B, T 5048; Captain Nesic, T 8153.
92. Lieutenant Lemal, T 7340. However, according to Lieutenant Lemal, this operation was a reconnoitring operation, rather an operation designed to capture territory, T 7395.
93. Admiral Jokic, T 4452-4455.
94. Admiral Jokic, T 4452-4455.
95. Admiral Jokic, T 4456.
96. Admiral Jokic, T 3445-3447; Captain Negodic, T 5252-5253. See also Exhibit C1/2.
97. Exhibit P119.
98. Exhibit P119, item 2.
99. Slavko Grubisic, T 1026-1027; Lucijana Peko, T 1842; Zineta Ogresta, T 3462-3463; see also Slobodan Vukovic, who cannot remember exactly whether it was the last day of September or the first day of October 1991, T 5819-5820.
100. Delo Jusic, T 3057-3058.
101. Slobodan Vukovic, T 5819-5820.
102. Slobodan Vukovic, T 5819-2580 ; see also Lucijana Peko, to the effect that that the attack seemed to be mainly carried out by planes, T 1842.
103. Lucijana Peko, T 1842; Delo Jusic, T 1359-1360.
104. Delo Jusic, T 1360.
105. Lars Brolund, T 847.
106. Slavko Grubisic, T 1080.
107. Lars Brolund, T 847.
108. Lucijana Peko, T 1843.
109. Ivo Grbic, T 1347-1348; Ivan Mustac, T 1461.
110. Captain Negodic, T 5164.
111. Ivan Mustac, T 1461-1462.
112. Lucijana Peko, T 1845-1846.
113. Delo Jusic, T 1358-1359; Lucijana Peko, T 1843-1844
114. The shelling caused damage to : (a) the atrium of the Sponza Palace (Ivan Mustac, T 1462); (b) the roof of the Rupe museum (Lucijana Peko, T 1847; Ivo Grbic, T 1349-1350); and buildings on both sides of the Boskovica Street (Lucijana Peko, T 1848-1849; Ivo Grbic, T 1349-1350 ); see also Delo Jusic, confirming damage in respect to one building in the street, T 1358-1359. There may have been damage to other buildings. See infra , paras 318-319.
115. Admiral Brovet was Deputy Federal Secretary of National Defence (i.e, Deputy Minister of Defence): Admiral Jokic, T 3869-3870.
116. The 11 points were tendered into evidence by the Prosecution and the Defence and were admitted into evidence as Exhibits P123 and D52 respectively. The Defence in its Final Brief contests the authenticity of Exhibit P123 and emphasizes that the document is a communication between the VPS Boka command and the Dubrovnik Crisis Staff and not a document sent by the Accused to the Dubrovnik Crisis Staff, Defence Final Brief, paras 209-210.
117. Admiral Jokic, T 4622-4623.
118. Admiral Jokic, T 4624.
119. Admiral Jokic, T 4624.
120. Ambassador Bondioli was the head of the regional centre of the ECMM for the region of Dalmatia, Ambassador Fietelaars, T 4265-4266.
121. Per Hvalkof, T 2138.
122. Per Hvalkov, T 2258.
123. Ambassador Fietelaars, T 4265 -4266.
124. Ambassador Fietelaars, T 4171 -4175.
125. Ambassador Fietelaars, T 4176.
126. Ambassador Fietelaars, T 4182 ; T 4253.
127. Ambassador Fietelaars, T 4257.
128. Ambassador Fietelaars, T 4187 -4188.
129. Ambassador Fietelaars, T 4186 -4190.
130. The attention of the 9 VPS artillery was Bosanka and Srdj, Admiral Jokic, T 4458. See also Exhibit D57 and Exhibit  D58.
131. Captain Nesic, T 8154-8155.
132. Captain Pepic, T 7475-7477; 7479-7481; Exhibits D101 and D102. See also Captain Nesic, T 8155.
133. Slobodan Novakovic, T 6817-6822.
134. Lieutenant Pesic, T 7921-7922.
135. See Exhibit D57. The order is signed by Admiral Jokic. Lieutenant-Colonel Pavicic also testified that around 8 or 9 November Admiral Jokic came to the command post of the 1/472 mtbr and after a meeting with the company commanders of that battalion issued an order for taking over the Mokosica Komolac road and the hamlet of Rozat: Lieutenant-Colonel Pavicic, T 6906-6909.
136. Luncijata and Nuncijata are referring to the same place and are therefore used without distinction in this decision.
137. The 16.gmo is the Border Patrol Detachment, Boka, a unit of the 9 VPS.
138. References in the text to “k ” and “tt” are map references indicating the elevation points in meters of the specific sites quoted.
139. Exhibit P118.
140. Exhibit P118, item 1.
141. Exhibit P118, item 1.
142. Exhibit P118, item 2.
143. Exhibit P116.
144. Exhibit P119, item 3.
145. Exhibit P118.
146. Exhibit P118, Admiral Jokic, T 3925. Another order, issued by the Accused as the commander of the 2 OG to the 9 VPS, on 18 November 1991, after the combat operations of 8 to 13 November 1991, also required the units not to open fire on the Old Town of Dubrovnik and to retreat the units exposed to enemy fire to cover: Exhibit D47, item 4.
147. Admiral Jokic, T 3922-3925.
148. Ivo Grbic, T 1352-1354; Ivo Vlasica, T 3320; T 3326; Lucijano Peko, T 1847-1848; Captain Negodic, T 5257-5262.
149. Exhibit P61, tab 10. See also Exhibit P61, tab 23, p 5.
150. Paul Davies, T 577.
151. See inter alia, a protest letter from Per Hvalkof dated 10 November 1991 reporting continuing heavy shelling of Dubrovnik by JNA.
152. Exhibit P61, tab 22.
153. Exhibit P61, tab 22 (emphasis omitted).
154. Paul Davies, T 588.
155. Paul Davies, T 588. According to Captain Negodic the shelling caused damage to 45 places of worship, T 5259. Ivo Grbic gave evidence that the Lovrijenac fort and private boats in the harbour were also damaged by the attack, T 1352-1354; T 1454. There may have been damage to other buildings. See infra, paras 318-319.
156. Paul Davies, T 589; T 3600.
157. Paul Davies, T 589.
158. Paul Davies, T 591.
159. Exhibit P61, tab 22.
160. Exhibit P61, tab 22.
161. Paul Davies, T 597-598.
162. Paul Davies, T 597.
163. Paul Davies, T 599.
164. Paul Davies, T 600.
165. Paul Davies indicated that he and his team had counted 1000 incoming explosions that day, after which they stopped recording them. Paul Davies, T 607.
166. Exhibit P61, tab 22.
167. Paul Davies, T 606.
168. Paul Davies, T 594-595, T 607. According to Admiral Jokic, at the time of the attack the 9 VPS constituted of the 16th Border Detachment, the 69th missile base, the PBO division of the 337th Naval Rear Base, the 107 OAG, two mobile artillery battalions of 85 millimetres and 130 millimetres, and staff units. The 2 OG mainly comprised of land forces and some naval units within the 9 VPS; it did not have an own air-force unit, but according to Admiral Jokic “it did have the support of the 97th Air Force Brigade.” Admiral Jokic further pointed out that “parts of this brigade did act on orders of the commander of the 2 OG”: Admiral Jokic, T 4397-98, T 3823.
169. Paul Davies, T 594; T 607; Ivo Vlasica testified that he observed JNA forces on Zarkovica in November 1991, T 3317. See Annex III.E.
170. Paul Davies, T 583.
171. Paul Davies, T 583.
172. Paul Davies, T 594-595.
173. Paul Davies, T 607.
174. Paul Davies, T 593 ; T 600 ; T 3565-3566.
175. Captain Nesic, T 8158.
176. Captain Nesic, T 8203. He testified that the quantity of ammunition used during this period and the objectives targeted were topics he discussed with his battalion commander.
177. Captain Nesic, T 8157-8158. Exhibit D19 is a map indicating the Croatian fire points as marked by Captain Nesic.
178. Captain Negodic, T 5355.
179. Paul Davies, T 595.
180. Paul Davies, T 583-585; T 601 ; T 3561; T 3567-3568.
181. Paul Davies, T 601 ; T 3555- 3556.
182. Paul Davies, T 585-586.
183. Paul Davies, T 585-586.
184. Admiral Jokic, T 3974.
185. Paul Davies, T 601 ; T 3590- 3592.
186. Paul Davies, T 3563.
187. Captain Negodic, T 5342-5344.
188. Paul Davies, T 583-586.
189. Paul Davies, T 3588-3589.
190. Paul Davies, T 3598.
191. Paul Davies, T 3555-3556.
192. Paul Davies, T 603.
193. Paul Davies, T 3590-3592; T 3555-3556.
194. Paul Davies, T 629-630; T 3555 -3556. See also Slobodan Novakovic, T 6872.
195. Lieutenant-Colonel Pavicic, T 6900-6901; Lieutenant Lemal, T 7356 ; Paul Davies, T 3569-3570.
196. Paul Davies, T 627-628.
197. Admiral Jokic, T 4963-4973.
198. Paul Davies, T 603; Captain Negodic, T 5260-5261.
199. Paul Davies, T 3601.
200. Admiral Jokic, T 4803; see more generally Captain Nesic, to the effect that from November as of 5 December a ceasefire was in force, T 8217.
201. Lieutenant-Colonel Stojanovic, T 7804; see also Captain Nesic, specifying that the provocations from the Croatian forces, using small arms with silencers, occurred on a daily basis, T 8163 ; Lieutenant Lemal, T 7359.
202. Exhibit D47, item 4.
203. Exhibits P61 and D90.
204. Exhibit P61, tab 26.
205. Colonel Svicevic, T 7064-7065. See also Per Hvalhof, T 2180.
206. Minister Rudolf, T 5476-5477.
207. Paul Davies, T 608.
208. Per Hvalkof, T 2178; Colonel Svicevic further testified that Minister Kouchner also participated in other negotiations in November and December 1991, T 7072-7074.
209. Geneva Accord, 23 November 1991 (UN Doc. S/23239, Annex).
210. Per Hvalkof, T 2182.
211. Per Hvalkof, T 2182; Exhibit  P61, tab 28.
212. Minister Rudolf, T 5485-5486.
213. Minister Rudolf, T 5746 ; Adrien Paul Stringer, T 415.
214. Minister Rudolf, T 5746.
215. Minister Rudolf, T 5491-5492.
216. Admiral Jokic, T 4030-4033.
217. See supra, paras 13-18.
218. Geneva Accord, 23 November 1991 (UN Doc. S/23239. Annex).
219. Minister Rudolf, T 5491-5492 ; Per Hvalkof, T 2183.
220. Admiral Jokic, T 4030-4031.
221. Admiral Jokic, T 4031-4034; Minister Rudolf, T 5589-5591.
222. Admiral Jokic, T 4038-4039; Minister Rudolf, T 5596-5597.
223. Admiral Jokic, T 4038.
224. Admiral Jokic, T 4038-4039.
225. Admiral Jokic, T 4040.
226. Admiral Jokic, T 4039.
227. Admiral Jokic, T 4039; 4715.
228. Admiral Jokic, T 4040.
229. Admiral Jokic, T 4040.
230. Defence Final Brief, para 277 ; Admiral Jokic, T 4859-4863.
231. Minister Rudolf, T 5559-5561 ; Exhibit P162.
232. Admiral Jokic, T 4038-4039.
233. Minister Rudolf, T 5752-5753.
234. Minister Rudolf, T 5592-5595.
235. Minister Rudolf, T 5753.
236. Exhibit P162, p 20.
237. Exhibit P162, p 20, items 4 and 7.
238. Minister Rudolf, T 5718-5720. See also Exhibit P61, tab 38.
239. Exhibit P61, tab 38, Article  3.
240. Exhibit P61, tab 38, Article  2.
241. Admiral Jokic, T 4039.
242. Lieutenant-Colonel Jovanovic, T 8079-8080; 8132.
243. Admiral Jokic, T 3863-3864; 3980 ; Exhibit P132.
244. Admiral Jokic, T 3840; 3980.
245. See infra, paras 384- 385.
246. Lieutenant-Colonel Jovanovic, T 8079-8080.
247. Lieutenant-Colonel Jovanovic, T 8079-8081.
248. Admiral Jokic, T 8564-8572.
249. Defence Final Brief, paras 302 -304.
250. Admiral Jokic, T 4860-63; 8576.
251. Admiral Jokic, T 8551-8552.
252. Lieutenant-Colonel Jovanovic, T 8093-8098; see also, Exhibit D65.
253. Lieutenant-Colonel Jovanovic, T 8097-8098; 8104.
254. Admiral Jokic, T 8553.
255. Exhibit D108.
256. Captain Nesic, T 8164; Lieutenant -Colonel Stojanovic, T 7821; Lieutenant Lemal, T 7366.
257. Lieutenant-Colonel Stojanovic, T 7821; Lieutenant Lemal, T 7366.
258. Lieutenant Lemal, T 7366; 7458 -7459; Captain Nesic, T 8164.
259. Lieutenant Lemal, T 7368.
260. Lieutenant-Colonel Stojanovic, T 7822-7824; Captain Nesic, T 8165-8166.
261. Lieutenant-Colonel Stojanovic, T 7822; Lieutenant Lemal, T 7367.
262. Lieutenant-Colonel Stojanovic, T 7847-7848.
263. Lieutenant Lemal, T 736.
264. Lieutenant Pesic, T 7897.
265. Lieutenant Lemal, T 7368-7369.
266. Lieutenant-Colonel Stojanovic, T 7800 ; 7849-7853 ; Captain Nesic, T 8166 ; Lieutenant Lemal, T 7369; Lieutenant Pesic, T 7897.
267. Captain Pepic, T 7481-7482.
268. Captain Pepic, T 7482.
269. Captain Pepic, T 7490-7491.
270. Lieutenant Lemal, T 7369-7370.
271. Lieutenant-Colonel Stojanovic, T 7825. See also Captain Nesic, T 8167. He was located at Zarkovica and testified that Lieutenant-Colonel Stojanovic picked up some equipment for his troops on the evening of 5 December 1991.
272. Admiral Jokic, T 8537; 8565.
273. Admiral Jokic, T 4040-4041; 4053.
274. Admiral Jokic, T 8568-8569; 8582-8583.
275. Exhibit D96, p 67.
276. Exhibit D65.
277. Exhibit D65.
278. Exhibits P61, tab 35; P162, p 18.
279. See infra, paras 161- 169.
280. Exhibit C1/1, pp 6 and 8; Exhibit C1/2.
281. Exhibit P54, house marked as 1.
282. Zineta Ogresta, T 3464-3465; Mato Valjalo, T 2000-2001.
283. Ivo Vlasica, T 3321. Colin Kaiser, a UNESCO representative, who was staying in the Old Town at the Institute for the Protection of Cultural Heritage opposite the Dominican Monastery, also testified that, initially, the explosions appeared to be coming from the direction of Mount Srdj. Colin Kaiser, T 2430-2432. Ivo Grbic who lived at Od Puca 16 in the Old Town, having been awoken at 05:50 hours stole a glance from his window towards Mount Srdj where he observed “constant explosions and thick smoke rising”. Ivo Grbic, T 1357-1359.
284. Exhibit P61, tab 30.
285. Exhibit P61, tab 30.
286. Exhibit P162, pp 10-11.
287. Exhibit P162, pp 10-11.
288. Nikola Jovic, T 2926.
289. Nikola Jovic, T 2932-2933.
290. Nikola Jovic, T 2934-2935.
291. Ivo Vlasica, T 3310; 3321.
292. Witness A, T 3624-3626.
293. Witness A, T 3626-3627.
294. Witness A, T 3625.
295. Witness A, T 3627.
296. Witness A, T 3627.
297. Ivo Grbic, T 1360-1361.
298. Exhibit P61, tab 30.
299. Nikola Jovic, T 2936-2937.
300. Nikola Jovic, T 2938.
301. Exhibit P61, tab 30.
302. Ivo Grbic, T 1422-1423. Mr Benic was a journalist from the Dubrovnik Television.
303. Exhibit P66.
304. The siren can be heard clearly in the clip time-stamped 0713 hours, but not in the previous clip time-stamped 0705 hours. See Exhibit P66 at 31.01 minutes. See also, Exhibit D108.
305. Exhibit P66 at 31.14 and 31. 16 minutes.
306. Exhibit P66 at 31.20 minutes.
307. Exhibit P61, tab 30.
308. Exhibit P164, a Report on enemy combat operations on 5 and 6 December 1991 by the Defence command of Dubrovnik, states that the “fiercest fighting took place between 0900 and 1000 hours when the enemy directed all artillery pieces to fire on the old and new towns, which inflicted serious damage on the old town.”
309. Colin Kaiser testified that around 1100 hours the shelling decreased to almost nothing, although shells were still falling periodically, T 2433.
310. Nikola Jovic, T 2948.
311. Lucijana Peko had moved with her family on 7 October 1991, from an area of greater Dubronvik called Sveti Jakov, to stay with a friend in her house on Prijeko Street in the Old Town, T 1841-1843. The family had made the decision to move because it was felt that the Old Town was protected and would not come under attack, T 1844.
312. Lucijana Peko, T 1848-1849.
313. Lucijana Peko, T 1849.
314. Witness A, T 3627-3628.
315. Witness A, T 3633-3634.
316. Exhibit P66 (at 31:37 and 31 :40).
317. See for example, Witness A, T 3627.
318. Exhibit P66 (at 32:13).
319. Colin Kaiser, T 2432-2435.
320. Witness A, T 3633.
321. See generally, Exhibit P61, tab 30.
322. See infra, paras 243- 259 ; 264-276.
323. See infra, paras 313 -330.
324. Lieutenant Lemal, T 7368-7369  ; T 7371.
325. Lieutenant Pesic, T 7897-7899 ; Lieutenant Lemal, T 7371.
326. Lieutenant Lemal, T 7371. According to him, these ZIS cannons would have been located in the Vlastica sector on 6 December 1991, T 7349. Admiral Jokic said the ZIS cannons were near Uskoplje, T 4020-4021. Lieutenant Pesic testified that the attack commenced at around 0600 hours with firing from Uskoplje, T 7898. Firing at targets on the slopes of Srdj can clearly be seen in the video compilation between 0648 and 0651 hours on the morning of 6  December 1991. See Exhibit P66 (at 30:40-30:52).
327. Lieutenant Lemal, T 7371, 7413.
328. Lieutenant Pesic, T 7902.
329. Lieutenant Pesic, T 7898. Lieutenant -Colonel Stojanovic testified that Lieutenant Pesic’s group was fired upon from the Dubrovnik area with anti-aircraft guns as they were moving towards Srdj, T 7827.
330. Lieutenant Pesic, T 7901-7902.
331. Lieutenant Pesic, T 7912-7915.
332. Lieutenant Pesic, T 7913.
333. Lieutenant-Lemal, T 7371-7372 ; 7413.
334. Lieutenant Lemal, T 7414.
335. Lieutenant Lemal, T 7372.
336. Lieutenant Lemal, T 7372.
337. Lieutenant Pesic, T 7912-7915.
338. Lieutenant Pesic, T 7912-7915.
339. Lieutenant Pesic, T 7912-7915.
340. Lieutenant Pesic, T 7912-7915.
341. Lieutenant Pesic, T 7912-7915.
342. Lieutenant Pesic, T 7912-7915.
343. Lieutenant Lemal, T 7413-7414.
344. Lieutenant Lemal, T 7373-7374.
345. Lieutenant Lemal, T 7374-7375.
346. Lieutenant Pesic, T 7902.
347. Lieutenant Pesic, T 7902-7903.
348. Lieutenant Lemal, T 7375-7376.
349. Lieutenant-Colonel Stojanovic, T 7831-832.
350. Captain Pepic, T 7486-7489.
351. Captain Nesic, T 8150-8151.
352. Captain Nesic, T 8168 ; Lieutenant Lemal, T 7348.
353. Captain Pepic, T 7471-7474.
354. Captain Pepic, T 7473-475.
355. Captain Pepic, T 7514-7518.
356. Admiral Jokic, T 4063-4064.
357. Captain Drljan, T 7698-701.
358. Captain Drljan, T 7718.
359. Captain Pepic, T 7483-7484.
360. Captain Pepic, T 7486. He testified that there were Maljutkas and recoilless guns on Zarkovica that day, T 7532.
361. Captain Nesic, T 8152.
362. Captain Pepic, T 7486.
363. Witness B, T 5025-5026; Exhibit  P154.
364. Captain Pepic, T 7487; T 7518. See also Exhibit D103; Exhibit P154; Witness B, T 5025-026.
365. Captain Pepic, T 7487-7489; Exhibit D103.
366. Captain Pepic, T 7486-7489, Exhibit D103; Witness B, T 5025-5026.
367. Captain Nesic, T 8168, T 8243.
368. Witness B, T 5040; Captain Nesic, T 8168.
369. Witness B, T 5041.
370. Captain Nesic, T 8168.
371. Captain Nesic, T 8184.
372. Captain Nesic, T 8238.
373. See infra, paras 182- 193.
374. Captain Nesic, T 8184.
375. Captain Nesic, T 8184-8185.
376. Captain Nesic, T 8240.
377. Captain Nesic, T 8235.
378. Exhibit D113. Captain Nesic, T 8188-8189.
379. The Chamber notes that this refers to the Maljutka rockets.
380. The Chamber notes that this refers to the recoilless cannons.
381. Janko Vilicic said that firing would be possible but not through a sight, T 8428-8431.
382. Witness B, T 5037, Captain Nesic, T 8238.
383. Janko Vilicic, T 8428.
384. Janko Vilicic, T 8429.
385. Janko Vilicic, T 8428.
386. Janko Vilicic, T 8498.
387. Janko Vilicic, T 8428-8429.
388. Janko Vilicic, T 8430.
389. Exhibit P184, p 12.
390. Captain Nesic, T 8245.
391. Exhibit P66 (at 31:48), Exhibit  P78 (at 12.08).
392. Witness B, T 5037-5038; T 5042.
393. Witness B, T 5037.
394. Witness B, T 5037.
395. Witness B, T 5043; Exhibit P154.
396. Witness B, T 5043-5044.
397. Witness B, T 5053.
398. Witness B, T 5052-5053.
399. Witness B, T 5046.
400. Witness B, T 5049.
401. Witness B, T 5046.
402. Witness B, T 5046; T 5049-5051.
403. Witness B, T 5051.
404. Witness B, T 5051.
405. Witness B, T 5052.
406. Witness B, T 5052; in this respect, see also, Captain Negodic, T 5266-5267.
407. Captain Pepic, T 7542-7545.
408. Captain Pepic, T 7535-7541.
409. Captain Drljan, T 7685.
410. Captain Drljan, T 7698-7701.
411. Captain Drljan, T 7701.
412. Captain Drljan, T 7701-7702.
413. Captain Drljan, T 7703.
414. Captain Drljan, T 7727-7729.
415. Captain Drljan, T 7728-7729.
416. Captain Drljan, T 7740.
417. Captain Drljan, T 7703-7704.
418. Captain Drljan, T 7704-7705.
419. Captain Drljan, T 7717.
420. Captain Drljan, T 7718.
421. Captain Drljan, T 7718.
422. Captain Pepic, T 7484-7485.
423. Captain Pepic, T 7484-7485 ; T 7582-7583. See also Captain Nesic, T 8182-8183.
424. Captain Pepic, T 7581-7582.
425. Captain Pepic, T 7583-7584.
426. Captain Nesic, T 8185.
427. Lieutenant Lemal, T 7375-7376.
428. Captain Drljan, T 7718.
429. Captain Nesic, T 8185.
430. Exhibit D65.
431. Exhibit D96.
432. Lieutenant-Colonel Stojanovic, T 7832-7833.
433. Lieutenant-Colonel Stojanovic, T 7832-7833.
434. Slobodan Novakovic, T 6836, 6874.
435. Captain Drljan, T 7718-7719. See also the testimony of Slobodan Novakovic who witnessed the meeting of the soldiers and Captain Drljan. The soldiers acted angrily and insulted Captain Zec and Admiral Jokic when they were told they had to give up the attack on Mount Srdj, T 6831-6834.
436. Lieutenant Lemal, T 7377-7378.
437. Lieutenant Lemal, T 7463-7465.
438. See supra, paras 131; 138-139.
439. Lieutenant-Colonel Jovanovic, T 8082-8083.
440. Lieutenant-Colonel Jovanovic, T 8082-8083.
441. Exhibit D108, Lieutenant-Colonel Jovanovic, T 8082-8083.
442. Lieutenant-Colonel Jovanovic, T 8084-8085.
443. Lieutenant-Colonel Jovanovic, T 8085-8087, Exhibit D108.
444. Lieutenant-Colonel Jovanovic, T 8084-8085 ; T 8123-8129.
445. Janko Vilicic said that the distance from the Greblje sector, where, according to Admiral Jokic the 120mm mortars were positioned (T 4011-4029, Exhibit P132), to Hotel Libertas was 6,150 (or 6,330 ) meters, which is at the far end of the range of those mortars, T 8402-8404; 8495 -8497. It is to be noted that the Croatian position identified at the tennis courts in the vicinity of Hotel Libertas is in fact to the north of the hotel and thus the distance is slightly smaller from that calculated by Janko Vilicic. Another expert, Jozef Poje, wrote in his report that the range of a 120mm mortar with active -reactive shells is 9,000 meters, while with LTF shells it is 6,400 meters, Exhibit  P184. In court he testified that the range of such a mortar with a light shell is 6,000 meters, T 6412-6415.
446. Exhibit D96.
447. Exhibit D108, para 4.
448. Exhibit C1/1, p 12.
449. Lieutenant-Colonel Jovanovic, T 8084-8087. In relation to the second action, he testified that he had sought guidance from the operations centre in Kupari as to whether he should continue beyond 1200 hours in light of Captain Zec’s order the previous evening that all activities should be terminated by 1200 hours. He was notified that the ceasefire should be honoured, T 8085-8087.
450. Admitted as Exhibit D96.
451. Exhibit D96.
452. Lieutenant-Colonel Jovanovic, T 8139.
453. Lieutenant-Colonel Jovanovic, T 8140-8141.
454. See supra paras 88; 98.
455. In particular, according to the 9 VPS OC war diary, on 4 December 1991 the commander of the 3/5 mtbr informed the 9 VPS OC that his unit was fired upon from small arms in the area of Sustjepan, that it was at the same time under 82mm mortar fire and also under 12.7 mm mortar fire form the direction of Nuncijata. The war diary also shows that on 5 December 1991, the 3/472 mtbr was under Croatian fire from Srdj, but the commander was advised by the 9 VPS OC to restrain from any action unless the fire from Srdj endangered the life of his soldiers. During the night the Croatians opened sporadic fire from small arms, but received no fire-response by the JNA, Exhibit D96, pp 60-61; 66- 67.
456. Exhibit D108.
457. Admiral Jokic, T 4046.
458. Admiral Jokic, T 4050.
459. Admiral Jokic, T 4046.
460. Admiral Jokic, T 4041.
461. Admiral Jokic, T 4043.
462. Admiral Jokic, T 4046-4047.
463. Admiral Jokic, T 4052.
464. Admiral Jokic, T 4052.
465. Admiral Jokic, T 4052.
466. Admiral Jokic, T 4047.
467. Colonel Svicevic, T 7106-7107 ; 7216.
468. Frigate-Captain Handzijev, T  7594.
469. Frigate-Captain Handzijev, T  7594; 7697; 7666-7667.
470. Frigate-Captain Handzijev, T  7595.
471. Admiral Jokic, T 8563.
472. In particular, Frigate-Captain Handzijev testified that he did not remember receiving an order to call Lieutenant -Colonel Kovacevic and instruct him to come to Kupari, as recorded in the Kupari logbook at 1349 hours on 6 December 1991, T 7639-7640. Frigate-Captain Handzijev also stated that he is unable to recall what conversations, messages or information he was dealing with on 4, 5 and 7 December 1991, T 7632-7633. 
473. Frigate-Captain Handzijev, T  7595.
474. Frigate-Captain Handzijev, T  7595.
475. Colonel Svicevic, T 7106-7108 ; 7216.
476. Colonel Svicevic, T 7062.
477. Colonel Svicevic, T 7087-7088.
478. Colm Doyle, T 1701.
479. Colm Doyle, T 1700.
480. Colonel Svicevic, T 7098.
481. Colonel Svicevic, T 7100-7101.
482. Colonel Svicevic, T 7100-7101 ; see also Exhibits D92; D93 and D94.
483. See infra, para 163.
484. See infra, para 163.
485. See infra, paras 161- 164.
486. See infra, para 162.
487. Colm Doyle, T 1708-1709; 1716 -1717.
488. Admiral Jokic, T 4047.
489. Defence Final Brief, paras 666 -686.
490. See Lieutenant-Colonel Durasic, T 7007; Frigate-Captain Handzijev, T 7629.
491. Admiral Jokic, T 4682-4684; Colonel Kurdulija, T 7864-7866; 7870; Frigate-Captain Handzijev, T 7641; 7648; 7676.
492. See supra, paras 96-97.
493. Defence Final Brief, para 447.
494. Minister Rudolf, T 5765; Exhibit  P162.
495. Minister Rudolf, T 5568-5570 ; Exhibit P162; see also Exhibit P136, which is the same message received by facsimile.
496. Admiral Jokic, T 4052.
497. Admiral Jokic, T 4063.
498. Admiral Jokic, T 4053-4054.
499. Admiral Jokic, T 4041; 4043.
500. Admiral Jokic, T 4064-4065.
501. Captain Drljan, T 7701; T 7722.
502. Captain Pepic, T 7484; Admiral Jokic, T 4101.
503. Admiral Jokic, T 4068.
504. Lieutenant-Colonel Durasic, T 6977-6978.
505. Admiral Jokic, T 4052-4053.
506. See supra, para 137.
507. Admiral Jokic, T 4052-4053.
508. Admiral Jokic, T 4894.
509. Exhibit P23 ; Minister Rudolf, T 5603-5604.
510. See supra, para 107.
511. Minister Rudolf, T 5600-5601.
512. See infra, para 163.
513. Admiral Jokic, T 4088; Minister Rudolf, T 5612; Exhibit P61, tab 33.
514. Colm Doyle, T 1716.
515. See infra, paras 166 -167.
516. See supra, paras 101- 102.
517. Admiral Jokic, T 4050. See also Milovan Zorc, T 6639-6640.
518. See supra, para 152.
519. Colonel Svicevic, T 7089.
520. Colm Doyle, T 1713-1714. See also, Exhibit P46 which is the personal diary of the witness in which the meeting with the Accused is recorded, and Exhibit P47 which is a photograph taken at the end of the meeting.
521. Colm Doyle, T 1712; 1718.
522. Colonel Svicevic, T 7098.
523. Colm Doyle, T 1715-1716.
524. Colm Doyle, T 1714.
525. Colm Doyle, T 1716.
526. Colm Doyle, T 1759-1761.
527. Colm Doyle, T 1716-1717.
528. Colm Doyle, T 1708-1709; 1716 -1717.
529. Colonel Svicevic, T 7089; 7166 -7167.
530. Exhibits D92, D93 and D94.
531. Colonel Svicevic, T 7098.
532. Colonel Svicevic, T 7100-7101.
533. Exhibit D94, pp 129-137.
534. Colonel Svicevic, T 7236-7237 ; 7240.
535. Colonel Svicevic, T 7236-7237 ; 7239-7240.
536. Colonel Svicevic, T 7059.
537. Colm Doyle, T 1760-1761.
538. Colm Doyle, T 1788.
539. Colm Doyle did not remember when exactly he made this entry to his diary but it was his practice to fill in the diary the evening or the following day, T 1712-1713.
540. Exhibit P46; Colm Doyle, T 1712 -1713.
541. Colm Doyle, T 1716.
542. Admiral Jokic, T 4368.
543. See supra, paras 79-81.
544. Colm Doyle, T 1715.
545. Colm Doyle, T 1716-1717.
546. See supra, paras 139- 140.
547. See supra, paras 104- 110.
548. See supra, paras 96; 98.
549. See supra, paras 79-80.
550. Admiral Jokic, T 4074; Exhibit  D96.
551. Exhibit D96.
552. Admiral Jokic, T 4071.
553. Admiral Jokic, T 4079.
554. Admiral Jokic, T 4079.
555. Admiral Jokic, T 4081.
556. Admiral Jokic, T 4112.
557. Admiral Jokic, T 4112.
558. Ambassador Fietelaars, T 4192 -4193.
559. See supra, paras 80-81.
560. Minister Rudolf, T 5568-5572 ; 5612, Exhibit P61, tab 33.
561. Per Hvalkof, T 2204, Exhibit  P61, tab 35.
562. Admiral Jokic, T 4094-4095.
563. Admiral Jokic, T 4095. Captain Nesic testified that on 7 December 1991 officers from the command of the 9 VPS visited the soldiers of the 3/472 mtbr and spoke to them, T 8187; see also Exhibit  D112. Lieutenant Lemal also testified that on 6 December officers of the 9 VPS visited his unit to discuss what had happened during that day and the morale of the troops, T 7421.
564. Lieutenant-Colonel Jovanovic, T 8094; Exhibit D65; Admiral Jokic, T 8553.
565. Exhibit D65.
566. Admiral Jokic, T 4109; Exhibit  P61, tab 39. Lars Brolund testified that on 8 December he assisted JNA officers and photographers in their inspection of the town, T 885. Lieutenant-Colonel Durasic testified that three officers in civilians clothes with a video camera passed by his command post at Mokosica on their way to Dubrovnik to film the damage and on their way back, T 7011-7012.
567. Exhibit P145; Admiral Jokic, T 4337-4338.
568. Admiral Jokic, T 4022-4023.
569. See infra, para 387.
570. Exhibit P133.
571. Minister Rudolf, T 5612-5613.
572. See infra paras 250; 259; 270; 276 and 330.
573. Adrien Stringer, T 310; Paul Davies, T 571; Slavko Grubisic, T 1028; Delo Jusic, T 3060.
574. Defence Final Brief, paras 510 -521.
575. Admiral Jokic, T 4109-4111.
576. Exhibit P61, tab 39; Slobodan Vukovic, T 5990-5993; 5827.
577. See supra, para 174.
578. Exhibit P145.
579. Exhibit P78.
580. Nikola Jovic, T 2964-2965; Witness A, T 3635-3636; Slobodan Vukovic, T 5914.
581. See infra para 326.
582. Defence Final Brief, para 518 ; see also, Exhibit P23.
583. Defence Final Brief, para 518.
584. Defence Final Brief, para 518.
585. Delo Jusic, T 3277-3280; Exhibit  P78.
586. Delo Jusic, T 3277-3280.
587. Delo Jusic, T 3096.
588. Zineta Ogresta, T 3454.
589. Delo Jusic, T 3280.
590. See supra, paras 100; 103 and 139.
591. Defence Final Brief, paras 374 and 608.
592. Captain Negodic, T 5240; 5242 ; The evidence shows that the Old Town was generally free from military positions (Nikola Jovic, T 2966; Lucijana Peko, T 1877; 1955-1960; Captain Negodic, T 5240 -5242; Delo Jusic, T 3124-3125; Zineta Ogresta T 3494; Mato Valjalo T 2012). The local authorities imposed a ban on armed persons to enter the Old Town and special checks were carried out at the town gates in order to enforce the ban (Nikola Jovic, T 2988-2989; Captain Negodic, T 5240-5241; Ivo Vlasica T 3424-3425). However, a small number of soldiers could occasionally be seen in the streets of the Old Town, sometimes with rifles or pistols (Dordje Ciganovic, T 2902; Nikola Jovic, T 2985-2986; Colin Kaiser, T 2466; Mato Valjalo, T 2011; Lieutenant-Colonel Stojanovic, T 7816-7820; Captain Negodic, T 5240). The Trial Chamber disregards the evidence of Ivo Grbic to the effect that no uniformed persons were present in the Old Town, considering that it is in contradiction with the majority of the evidence on the issue and the witness was by no means in a position to assess the situation in all the places within the town walls, T 1415-1418. A similar testimony given by Slobodan Vukovic is likewise to be approached with caution, as that witness was not present in the Old Town on that day, until late evening, T 6144-6145; T 5825-5826.
593. Admiral Jokic, T 4970-4972.
594. Per Hvalkof, T 2237-2238.
595. Colin Kaiser, T 2379-2380; 2471 -2480.
596. Paul Davies, T 568-569.
597. Lars Brolund, T 874; Per Hvalkof, T 2218-2219.
598. Captain Drljan, T 7703.
599. Captain Drljan, T 7704-7705; 7711; 7735-7736.
600. Captain Drljan, T 7735-7736.
601. Captain Drljan, T 7711; 7749 -7752.
602. See infra, para 190; Captain Drljan, T 7736-7739.
603. Captain Drljan, T 7711.
604. Exhibit C1/2, “View of the Old Town from Zarkovica” and “View of 3 arches at Gradska Kavana from Zarkovica”-the Bell Tower is visible and only the top floor of the building located on the other side of the Luza Square, where the Orlando Column stands. See Annex III. E.
605. Captain Drljan, T 7752-7754.
606. Captain Drljan, T 7703-7704.
607. Exhibit P66 at 31:18-31:30; Exhibit P78 at 11:57, 13:24.
608. See supra, para 136.
609. Captain Drljan, T 7728-7729.
610. Captain Drljan, T 7740-7744.
611. Captain Pepic, T 7494; 7549- 7552.
612. Captain Pepic, T 7549-7552.
613. Captain Pepic, T 7558-7560.
614. Captain Pepic, T 7493-7494; 7496; 7527-7530.
615. Captain Pepic, T 7520-7521. The witness referred to the tower to the right from the entrance. The only tower corresponding to this description, on the map tendered into evidence under number P13, is the tower of St Luka.
616. Captain Pepic, T 7520-7521.
617. Exhibit C1/1, p 4.
618. Captain Negodic, T 5149.
619. Captain Negodic, T 5245.
620. Captain Negodic, T 5366-5367. The witness referred in fact to the “fish shop”. The fish shop (Ribarnica ) is, as explained by Captain Nesic, “at the entrance to the Old Town from the side of the port”, T 8171.
621. Exhibit C1/1, p 19.
622. The witness referred to it as “the right-hand tower in the Old Town port”, Captain Nesic, T 8172.
623. Captain Nesic, T 8172.
624. Captain Nesic, T 8292; Exhibit  D113.
625. Captain Nesic, T 8270.
626. Captain Nesic, T 8170; 8172, 8255.
627. Captain Pepic, T 7486-7489; Exhibit D103, positions 1 and 4.
628. Exhibit C1/1, p 19; Exhibit  C1/2, “View of 3 windows of St. Luka from Zarkovica” and “View of 3 windows of St. Luka from St. John”.
629. Exhibit C1/1, p 19.
630. Captain Negodic, T 5215-5216 ; 5221.
631. Exhibit D113; Captain Nesic, T 8236-8237.
632. Exhibit D113.
633. Exhibit D110.
634. Captain Nesic, T 8170-8171 ; 8240-8243; Exhibit D113.
635. Captain Nesic, T 8171.
636. Delo Jusic T 3124, Zineta Ogresta T 3494, Mato Valjalo T 2011, Per Hvalkof T 2221.
637. Ivo Grbic, T 1451; Captain Negodic, T 5226 ; Ivo Vlasica, T 3362.
638. Nikola Jovic, T 2966; 3010-3011 ; 3014; Per Hvalkof, T 2219.
639. Jozef Poje, T 6224.
640. Captain Negodic, T 5241. Per Hvalkof also doubted whether the Old Town was suitable for mortars, T 2219.
641. Captain Pepic was there on 8 and 9 November 1991, T 7475-7477; Captain Nesic was there, among other periods, between 10 and 13 November 1991, T 8201.
642. Exhibit D57, Section 5.4 ; Admiral Jokic, T 4972-4973.
643. Exhibit D 96; Captain Pepic, T 7569-7573; Captain Drljan, T 7742-7744; 7772-7773.
644. Exhibit D62, Section 1.
645. Exhibit D65, Section 2.
646. Admiral Jokic, T 4954-4956.
647. See supra, para 132.
648. Captain Pepic, T 7527-7530.
649. Captain Nesic, T 8236.
650. Captain Nesic, T 8236.
651. Captain Nesic, T 8238.
652. Captain Nesic, T 8241-8243. In his report 4 projectiles are mentioned in this connection, Exhibit D113.
653. Captain Pepic, T 7527-7530.
654. Captain Negodic, T 5187-5189.
655. Captain Negodic, T 5194-5195 ; Admiral Jokic, T 4963-4966 ; Exhibit P146.
656. Captain Negodic, T 5221.
657. Captain Negodic, T 5225-5226.
658. Captain Negodic, T 5463-5464.
659. Captain Negodic, T 5215-5216.
660. Captain Negodic, T 5182-5186  ; 5430; Exhibit P159.
661. Captain Negodic, T 5174-5175  ; 5430 ; Exhibit P159.
662. Captain Negodic, T 5213-5214  ; Exhibit P160.
663. Captain Negodic, T 5215, 5323 ; Exhibit P160.
664. Captain Negodic, T 5176-5179 ; Exhibit P159.
665. Captain Negodic, T 5186-5187.
666. Captain Negodic, T 5343.
667. Captain Negodic, T 5233 and 5428.
668. Captain Negodic, T 5180-5181, 5395-5396, 5422-5424.
669. Captain Negodic, T 5167-5168 ; Exhibit P159.
670. Captain Negodic, T 5170-5173 ; Exhibit P159.
671. Captain Nesic, T 8174, 8273.
672. Captain Nesic, T 8274-8275.
673. Captain Nesic, T 8177. Admiral Jokic also referred to a mortar positioned nearby the Excelsior Hotel. However, the position marked by the witness on map P146 is to the north-east from the hotel, T 4968-4969; Exhibit P146.
674. Lieutenant Lemal, T 7413-7415, 7373-7374; the witness stated that his troops entered Srdj at around 0830 hours and the fire from Lapad was opened within 30 minutes to 1 hour after that moment.
675. Lieutenant Lemal, T 7357.
676. Lieutenant Lemal, T 7356.
677. Admiral Jokic, T 4092. As regards the name of that area: Lieutenant-Colonel Jovanovic, T 8119, and Exhibit P159.
678. Lieutenant-Colonel Jovanovic, T 8082.
679. Lieutenant-Colonel Jovanovic, T 8119-8120; reference to mortar fire or Croatian defenders in that area is made in Exhibit D65.
680. Lieutenant-Colonel Jovanovic, T 8084-8085; 8119-8120; Lieutenant Lemal, T 7356; 7358 (the witness referred to a position near the letter K in “Kotorska Ulica” and numeral 20 on the map P10, which is the area of the tennis courts); Captain Nesic, T 8174; 8272; Exhibit D111 (the witness spoke of a “clearing” behind the Libertas Hotel, but the position marked by him on the map D111 corresponds with that of the tennis courts); Captain Pepic, T 7484-7485; 7501; 7571; Lieutenant Pesic, T 7898-7900; 7922-7923 (the witness mentioned tennis courts at Babin Kuk, but in the absence of evidence of firing from any tennis courts at Babin Kuk and in view of the evidence to the effect that the tennis courts from which fire was opened were near the Libertas Hotel, the witness appears to have meant the latter place); Exhibit D65.
681. Lieutenant-Colonel Jovanovic, T 8084-8085; Captain Pepic, T 7485.
682. Captain Negodic, T 5233.
683. Nikola Jovic, T 3010; 3018-3019 ; Captain Negodic, T 5354; Mato Valjalo, T 1998; 2056-2057; Lieutenant-Colonel Jovanovic, T 8082-8083; 8112-8113; Lieutenant Lemal, T 7359; Captain Pepic, T 7569-7573; Exhibits D96 (p 70) and D65.
684. Per Hvalkof, T 2345.
685. Witness A, T 3687-3688; Nikola Jovic, T 3010; Ivo Vlasica, T 3415.
686. Admiral Jokic, T 4966; Exhibit  P146.
687. Captain Nesic, T 8177; Exhibit  D111; the witness referred to the “park behind the Imperial Hotel”. For the location of the Imperial Hotel see Exhibit P10.
688. Ivo Grbic, T 1414-1418.
689. Captain Negodic, T 5191-5192 ; 5261; 5338.
690. Colin Kaiser, T 2525.
691. Admiral Jokic, T 3920-3921. The witness referred to it as “the park near the old hospital” or “Pile park”. The park near the old hospital is Gradac Park, Zineta Ogresta, T 3498.
692. Admiral Jokic, T 4965-4966.
693. Nikola Jovic, T 3010-3011.
694. Ivan Mustac, T 1521.
695. Captain Nesic, T 8272.
696. Captain Negodic, T 5193-5194.
697. Ivo Grbic, T 1419. Although the scene is included in the part of the material purportedly relating to 4 November 1991, there is no evidence which would make it possible to verify the precise date of the footage (Exhibit P66). Therefore, the footage has not much probative value, especially for the purpose of establishing whether the military position was active on 6 December 1991.
698. Captain Negodic, T 5194.
699. Captain Negodic, T 5463-5464.
700. Captain Negodic, T 5215-5216.
701. Jozef Poje, T 6208-6210; 6217 -6218; 6222; Exhibit P184/2a ; 184/4.
702. Jozef Poje admitted that if there were no 120mm mortars located at Zarkovica, Bosanka and Srdj, part of his conclusions would be irrelevant, T 6318.
703. Jozef Poje, T 6399-6410; 6402 -6404; 6405.
704. Jozef Poje, T 6402-6404.
705. Jozef Poje, T 6321.
706. Exhibit D115, pp 5-6.
707. Exhibit D115, fn 66.
708. Exhibit D115, p 89.
709. Exhibit D96, p 68.
710. Exhibit D115, p 89.
711. Exhibit D115, pp 88, 97 and 98.
712. Captain Negodic, T 5234; 5344 -5345; 5367.
713. Exhibit D115, p 98; Janko Vilicic, T 8365.
714. Janko Vilicic, T 8317.
715. Exhibit D115, Annex 5.
716. The expert assumed that there was a Bura wind on 6 December 1991, T 8317-8319. The main direction of the Bura wind is from north-east to south-west, T 8405, whereas the video evidence available to the Chamber shows a wind blowing from the south to the north, Exhibit P78; Exhibit  P66 at 31:19.
717. Exhibit D115, p 42.
718. Janko Vilicic, T 8305; 8345; 8346 and 8356.
719. Janko Vilicic, T 8349-8350.
720. Janko Vilicic, T 8348-8349.
721. Exhibit D115, pp 94a and 94b ; see infra the Chamber’s findings as to the objects damaged on 6 December 1991, paras 316-330; see Annex I.
722. Captain Pepic even testified that he did not observe any firing from the slopes of Srdj in the area of the Old Town, T 7501.
723. Bogisica Park and Gradac Park, see supra paras 201-202.
724. Exhibit D113; Captain Nesic, T 8174 and 8272.
725. Exhibit D113.
726. Captain Nesic, T 8274.
727. Captain Pepic, T 7527-7530; Exhibit D113; Exhibit D96, pp 67-75.
728. Exhibit D115, pp 51-53; 59-60.
729. Exhibit P184/5. The report of Mr Vilicic does not refer to the foot of the cable car itself, but to a position located 100 metres north of the Old Town. However, the location of that position is very close to that of the cable car. Exhibit D115, pp 77-85; T 8345.
730. Exhibit C1/1, p 10.
731. Exhibit C1/1, p 12.
732. Captain Negodic, T 5276.
733. Captain Negodic, T 5276.
734. Jozef Poje, T 6232; Exhibit  P184/1, p 27.
735. Exhibit P78 at 19:27; Exhibit  P145 at 00:58.
736. Janko Vilicic, T 8361-8363; 8369-8380; 8500-8504.
737. Janko Vilicic, T 8380-8381.
738. See supra, para 178.
739. Witness B, T 5046-5047.
740. Witness B, T 5047.
741. Witness B, T 5103.
742. Captain Negodic, T 5266-5267.
743. As the Appeals Chamber ruled, “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” (see Tadic Jurisdiction Decision, para 70).
744. See, among other authorities, Tadic Jurisdiction Decision, para 70, Naletilic Trial Judgement para 225, Krnojelac Trial Judgement, para 51.
745. Kunarac Appeals Judgement, para 58.
746. Tadic Jurisdiction Decision, para 94, Furundzija Trial Judgement, para 132 and Celebici Trial Judgement, para 314.
747. Indictment, para 6.
748. See supra, paras 99-119 ; 121-145.
749. Tadic Jurisdiction Decision, paras 91 and 94.
750. Tadic Trial Judgement, para 610; Celebici Trial Judgement, para 279; Kunarac Trial Judgement, para 403; Kvocka Trial Judgement, para 123; Krnojelac Trial Judgement, para 52; Vasiljevic Trial Judgement, para 26; Stakic Trial Judgement, para 580; Galic Trial Judgement, para 11; Brdanin Trial Judgement, para 129.
751. Common Article 3(1)(a) of the Geneva Conventions provides that:
“In the 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:
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 above-mentioned persons:
(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; […]”
752. Tadic Jurisdiction Decision, para 89: “it can be held that Article 3 is a general clause covering all violations of humanitarian law not falling under Article 2 or covered by Articles 4 or 5, more specifically: […] violations of common Article 3 and other customary rules on internal conflict […]”. This finding was confirmed in the Celebici Appeals Judgement, at para 136.
753. Tadic Jurisdiction Decision, para 98 and 134; Celebici Appeals Judgement, para 139; Kunarac Trial Judgement, para 406; Kvocka Trial Judgement, para 124.
754. Tadic Jurisdiction Decision, para 129. While the Appeals Chamber found that common Article 3 contains no explicit reference to criminal liability for violation of its provisions, it relied on the findings of the International Military Tribunal at Nuremberg, on State practice, national legislation, including the law of the former Yugoslavia, Security Council resolutions and the agreement reached under the auspices of the ICRC on 22 May 1992. Its finding was confirmed in the Celebici Appeals Judgement, para 174.
755. Galic Trial Judgement, para 16.
756. Strugar Trial Chamber Decision on Jurisdiction, paras 17-21, and Strugar Appeals Chamber Decision on Jurisdiction, para 9; see also Tadic Jurisdiction Decision, para  127 and Blaskic Appeals Judgement, paras 157-158.
757. Galic Trial Judgement, paras 27 and 45; ICRC Commentary on Additional Protocols, p 615.
758. ICRC Commentary on Additional Protocols, p 586.
759. “The civilian population as such, as well as individual civilians, shall not be the object of attack.” (Article  51 (2) of Additional Protocol I).
760. Strugar Appeals Chamber Decision on Jurisdiction, para 10.
761. Exhibit P189, paras 9 and 20 ; “Regulations” contain provisions specifically prohibiting the making of civilians the direct object of combat operations (para 67) and making civilian facilities the object of attack or reprisals (para 73). See also the examples of provisions of domestic laws penalising the crimes of attacking civilians and civilian objects referred to in the Kordic Appeals Judgement, fn 73.
762. Strugar Trial Chamber Decision on Jurisdiction, paras 17-21, and Strugar Appeals Chamber Decision on Jurisdiction, para 9; see also Tadic Jurisdiction Decision, para  127.
763. Tadic Jurisdiction Decision, para 127.
764. Tadic Jurisdiction Decision, para 100.
765. Tadic Jurisdiction Decision, para 111, referring to Resolution 2675 “Basic principles for the protection of civilian populations in armed conflicts”, adopted during the 25th Session of the General Assembly, on 9 December 1970, available from http://www.un.org/documents /resga.htm.
766. Strugar Trial Chamber Decision on Jurisdiction, para 19.
767. See supra, footnote 765.
768. Article 48 of Additional Protocol I, entitled “Basic rule”, obliges the Parties to the conflict to distinguish at all times between civilian objects and military objectives. See also Kordic Appeals Judgement, para 54.
769. This is to be distinguished, in the Chamber’s view, from the issue whether damage is also an element of the crime of attacks on civilian objects. See infra, para 280.
770. Indictment, paras 21 and 23.
771. See infra, paras 320; 326-327.
772. Strugar Appeals Chamber Decision on Jurisdiction, para 10.
773. See supra, para 222.
774. Hague Convention (IV) respecting the Laws and Customs of War on Land and the Regulations annexed thereto, 18 October 1907, Article 23: “In addition to the prohibition provided by special Conventions, it is specially forbidden […] to destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war.”
775. See paras 35 and 41 of the Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolution 808, 3 May 1993 (S/25704); Blaskic Trial Judgement, para 168. The International Court of Justice explicitly confirmed the customary law status of the Hague Regulations. It opined in its Advisory Opinion in 2004 that “The Court considers that the provisions of the Hague Regulations have become part of customary law, as is in fact recognized by all the participants in the proceedings before the Court.” The International Court of Justice, Advisory Opinion on the “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory”, No. 131, 9  July 2004, para 89.
776. Indictment, paras 21 and 23.
777. Brdanin Trial Judgement, para 592, fn 1505. See also Hadžihasanovic 98bis Decision, paras  102 and 105. “The physical characteristics of exercises of violence and their effects upon people and resources are of course the same, assuming violence of comparable proportions, in an internal as in an international conflict. It would thus seem fairly obvious that (…) a fundamental policy of minimum unnecessary destruction is equally vital and applicable in one as in the other type of conflict”. Myres S McDougal and Siegfried Wiessner, The International Law of War; Transnational coercion and world public order, Dordrecht, Martinus Nijhoff Publishers, 1994, p 535.
778. Article 27 of the Hague Regulations reads: “In sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected, provided they are not being used at the time for military purposes […]” (emphasis added).
779. The first indications that the cultural property was to be protected came at the time of Renaissance. The Lieber Code in its Articles 35 and 36 provides for the protection of cultural property. The Brussels Declaration of 1874 in its Articles 16 and 17 states that in sieges and bombardments the officer in command of the attacking forces must take all necessary steps “to spare, as far as possible, buildings dedicated to religion, art, science or charitable purposes”, additionally to the provisions concerning protection of cultural property in occupied territories (Article 8). Although the Declaration was not ratified it had influenced the future codifications of laws and had widely been accepted as declaratory of customary international law leading to The Hague Convention Nos. IV and IX of 1907. The Oxford Manual of the Institute of International Law of 1880 should also be mentioned as it repeated almost word for word the relevant standards in this area laid down by the Brussels Declaration. Jirí Toman, The Protection of Cultural Property in the Event of Armed Conflict: Commentary on the Convention for the Protection of Cultural Property in the Event of Armed Conflict and its Protocol, signed on 14 May, 1954 in the Hague, and on other instruments of international law concerning such protection. Dartmouth, UNESCO Publishing : 1996, pp 4-10.
780. The Chamber is of the opinion that the institutions and objects falling under Article 3(d) of the Statute are included into the definition of the “cultural property” provided in Article 1 of this Convention:
“For the purposes of the present Convention, the term ‘cultural property’ shall cover, irrespective of origin or ownership:
(a) movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest; works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as scientific collections and important collections of books or archives or of reproductions of the property defined above;
(b) buildings whose main and effective purpose is to preserve or Exhibit the movable cultural property defined in sub-paragraph (a) such as museums, large libraries and depositories of archives, and refuges intended to shelter, in the event of armed conflict, the movable cultural property defined in sub-para  (a);
(c) centres containing a large amount of cultural property as defined in sub-paras  (a) and (b), to be known as ’centres containing monuments’.”
781. The Chamber recalls that the development of the provisions of the Hague Convention of 1954 were “guided by the principles […] established in the Conventions of The Hague of 1899 and of 1907 and in the Washington Pact of 15 April 1935”, as it is stated in para 4 of its Preamble.
782. Article 19 para 1 of The Hague Convention of 1954 states:
In the event of an armed conflict not of an international character occurring within the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the provisions of the present Convention which relate to respect for cultural property.
783. Tadic Jurisdiction Decision, para 98; see a contrary view as to the customary nature of this principle in F Kalshoven, L Zegveld, Constraints on the waging of war, ICRC, Geneva 2001, p 48.
784. Tadic Jurisdiction Decision, para 127. In Brdjanin Trial Judgement, it was held that “[i]nstitutions dedicated to religion are protected […] under customary international law,” para  595.
785. It becomes apparent from the wording of both articles, which accord protection to cultural property “[w]ithout prejudice to the Provisions of the Hague Convention [of 1954]”, that Additional Protocols I and II did not intend “to revise the existing rules on the subject, but that protection and respect for cultural objects [was to be] confirmed”. ICRC Commentary on Additional Protocol I, para 2046, p 640. “In the draft the ICRC did not include a provision relating to the protection of cultural objects as this had been provided for by an international instrument especially designed for this purpose already in 1954. […] However, the Diplomatic Conference considered that the Protocol should contain a provision of this type thereby revealing its concern for the cultural heritage of humanity.”, paras 2039 and 2040. Furthermore, in cases of contradiction, the primacy of the Hague Convention of 1954 over Article 53 of the Additional Protocol I was emphasized, para 2046.
786. See supra, para 225.
787. Article 1 (a) of The Hague Convention of 1954.
788. Jokic Sentencing Judgement, paras 45 and 53.
789. Blaskic Trial Judgement, VI. Disposition; Kordic Trial Judgement, paras 834 and 836; Naletilic Trial Judgement, para 763; Jokic Sentencing Judgement, para 14; Brðanin Trial Judgement, paras 1082 and 1152.
790. Indictment, paras 16 and 18.
791. Delalic Trial Judgement, para 439; Blaskic Trial Judgement, para 217; Kordic Trial Judgement, para 236; Krstic Trial Judgement, para 495.
792. Blaskic Appeals Judgement, paras 41 and 42.
793. Blaskic Appeals Judgement, paras 41 and 42.
794. See for example, Stakic Trial Judgement, para 584 (citing collected cases).
795. See for example, Galic Trial Judgement, para 150 (in the context of the definition of murder under Article 5 of the Statute); see generally Naletilic Trial Judgement, para 248.
796. Prosecutor v. Galic, Indictment, Counts 5 to 7.
797. See for example, Galic Trial Judgement, paras 438-496 (incident at Markale market).
798. See for example, Galic Trial Judgement, paras 331-345.
799. Kordic Trial Judgement, paras 720-722.
800. Prosecution Final Brief, paras  152; 155 and 160.
801. Prosecution Final Brief, paras 152; 155 and 160.
802. Prosecution Final Brief, paras  156 and 160.
803. Defence Final Brief, para 504.
804. Defence Final Brief, paras 499 -501.
805. Defence Final Brief, para 503. The Defence also argues that at the time of death, both Tonci Skocko and Pavo Urban were not respecting the general alarm warning given to the citizens of Dubrovnik by the sirens at 0715 hours on 6 December 1991, thus contributing to the serious consequences that ensued: Defence Final Brief, para 509.
806. Nikola Jovic, T 2933.
807. Nikola Jovic, T 2941-2942.
808. Nikola Jovic, T 2336-2338.
809. Nikola Jovic, T 2941-2942.
810. Nicola Jovic, T 2943-2944.
811. Ivo Vlasica, T 3321-3322; Nikola Jovic, T 3024-3025; T 2933.
812. Ivo Vlasica, T 3356.
813. Nikola Jovic, T 3025-3026.
814. Dr Ciganovic, T 2839; Exhibit  P70.
815. Dr Ciganovic, T 2839.
816. Dr Soc, T 7931-8012; Exhibit  D124.
817. Dr Soc, T 7935-7937.
818. Dr Soc, T 7977.
819. Dr Soc, T 7933-7935.
820. Dr Soc, T 7939-7941.
821. See supra, para 214.
822. Witness A, T 3628-3629. In court Witness A identified the location of Pavo Urban’s body in a video clip on Dubrovnik. According to Witness A the body laid under the archway on the left hand side of the city bell tower: Exhibit P97; T 3635.
823. Witness A marked on a map of the Old Town and on an aerial photograph of the Old Town: (a) the location of Pavo Urban’s body; and (b) the location of Witness A’s apartment: Exhibits P95 and P96 ; T 3624, T 3631-3632. Witness Ivan Mustac gave evidence that he saw Pavo Urban on the south side of Sponza Palace at around 1100 hours on 6 December 1991: Ivan Mustac, T 1470-1472.
824. Witness A, T 3629-3630 and Exhibit  P94 (photograph of Pavo Urban).
825. Witness A, T 3630-3631.
826. Witness A, T 3628; Slavko Grubisic, T 1046-1047; Mato Valjalo, T 2003.
827. Exhibit P94. According to Witness  A, in the photograph, Pavo Urban is wearing blue trousers (jeans) and a red vest ; his camera is in his left arm: Witness A, T 3629-3630.
828. “... one injury in the navel area, an explosive wound on the surface of the skin which was several centimetres in diameter, 5 or 6 centimetres, I believe it was, through which one could see the damaged intestines and other abdominal organs, the profuse bleeding inside the abdominal cavity, as well as the signs of blood flowing from the wound across the surrounding skin. Inside the abdomen I found a fragment of the explosive device that had caused the damage and haemorrhage was the cause of death”: Dr Ciganovic, T 2746-2747. See also Exhibit P70.
829. Dr Ciganovic, T 2747-2748.
830. Dr Ciganovic, T 2747.
831. Dr Soc, T 7931-8012; Exhibit  D124. See supra, paras 246-247.
832. Dr Soc, T 7984-7986.
833. See supra, para 249.
834. Indictment, paras 16 and 18.
835. The Chamber found there that the evidence relating to Nikola Jovic’s injuries and mental anguish was “not capable of establishing the element of serious mental or physical suffering or injury for the crime of cruel treatment”, Rule 98bis Decision, para 46.
836. Celebici Appeals Judgement, para 424; Vasiljevic Trial Judgement, para 234; Naletilic Trial Judgement, para 246.
837. Celebici Appeals Judgement, para 424.
838. Prosecution Final Brief, paras  167 and173.
839. Prosecution Final Brief, paras  169-172; 174.
840. Prosecution Final Brief, paras  168-169; 173-174.
841. Defence Final Brief, paras 494 -497.
842. Defence Final Brief, para 491.
843. Defence Final Brief, para 492.
844. Ivo Vlasica, T 3309-3310; 3321.
845. Ivo Vlasica, T 3321-3322.
846. Ivo Vlasica, T 3322.
847. Ivo Vlasica, T 3322-3325.
848. Ivo Vlasica, T 3323-3325.
849. Ivo Vlasica, T 3333-3335.
850. Ivo Vlasica, T 3357-3359. See also, Exhibits P86.1; P86.2 and P86.3.
851. Ivo Vlasica, T  3335.
852. Exhibit P211.
853. Exhibit P211, document C.
854. In this respect, the Chamber notes that in his expert report, Miodrag Soc states that “it is not possible to ascertain definitely what leg- thigh was in question-left or right”, Exhibit D124, Ad. 3.
855. Ivo Vlasica, T 3327-3328.
856. Exhibit P211, document C.
857. Exhibit P211, document D.
858. Exhibit P211, document E.
859. Exhibit P86.1 is an official decision of the Dubrovnik Office for Work, Health and Social Welfare dated 10 June 1996, recognising Ivo Vlasica as a “civilian war invalid” entitled to “disability benefit” on account of “the wounding of his right upper leg”, an injury incurred when he was “wounded by shrapnel on 6 December 1991”. Exhibit P86.2 is the document from the First Instance Medical Committee for the medical examination of the person covered by the Law on the Protection of Military and Civilian War Invalids dated 23 April 1996 and confirms that Ivo Vlasica is entitled to recognition of his invalidity on account of “the wounding of the right upper leg”. Exhibit P86.3 is apparently a substantially illegible handwritten version of Exhibit P86.2.
860. Exhibit P211, document A.
861. Exhibit P84.
862. The Chamber recalls that in cross-examination, Miodrag Soc acknowledged that if there was going to be an inaccuracy in the medical reports, it would be more likely be made by an administrative clerk than by a surgeon, T 7992-7994. He added that he would have to trust the surgeon and assume that there had been a mistake in the record entries, T 8010-8011.
863. Ivo Vlasica testified that he was working in his father’s grocery store, T 3321-3322.
864. Ivo Vlasica, T 3321-3322; see also, Exhibit P211.
865. Mato Valjalo, T 2000-2001.
866. Mato Valjalo, T 2001-2002.
867. Mato Valjalo, T 2002.
868. Mato Valjalo, T 2002.
869. Mato Valjalo, T 2002-2003.
870. Mato Valjalo, T 2004-2006. One of the pieces of shrapnel in Mato Valjalo’s lungs was discovered later, when he went for a check-up in Zagreb, T 2005-2006.
871. Mato Valjalo, T 2004-2005.
872. Exhibit P57.
873. Mato Valjalo, T 2004-2005; Exhibit  P56.
874. Mato Valjalo, T 2009; Exhibit  P56.
875. Exhibit P60 is an official decision of the Dubrovnik Secretariat for Health, Social Welfare, Labour, Soldiers and Disability Affaires dated 15 December 1993, recognising Mato Valjalo as a “disabled veteran ” entitled to “disability allowance” on account of serious injuries sustained on 6 December 1991 on Stradun.
876. Exhibits P56 and P58.
877. Miodrag Soc, T 7954-7955; see also D124, Ad. 2. With regard to the injury in the lung, Miodrag Soc admitted during cross-examination that he had overlooked the reference thereto in Exhibit  P56, T 7994-7998.
878. Exhibit P58, a handwritten letter from the Dubrovnik Medical Centre states that Mato Valjalo was “(w(ounded by an explosive device on 6 December 1991 in the head and neck, right hemithorax, right thigh and lower leg”. Exhibit P57, a letter of discharge from the Dubrovnik Medical Centre dated 12 December 1991, indicates that Mato Valjalo “was wounded on 6 December 1991. He sustained several blast wounds. The biggest ones were to the neck, 4cm, and also entry-and-exit wounds to the medial side of the right thigh”. Exhibit P56, a release form from the Clinical Hospital in Rijeka dated 9 January 1992, and which Miodrag Soc described as the most comprehensive medical file, states that “(d(uring an explosion in Dubrovnik, the patient was inflicted several wounds on the nuchal region, thorax, right upper leg and lower leg”, Miodrag Soc, T 7954-7955. According to Exhibit P59, a case history of the Dubrovnik Medical Centre dated 13 March 1995, Mato Valjalo, “(w(ounded by shell on 6 December 1991, received many injuries to the head, chest and legs. He still has foreign bodies (shrapnel) in the right leg, lungs and neck.”
879. Mato Valjalo testified that he was the driver of the President of the Crisis Staff, Mr Zeljko Sikic, T 1995- 1997. See also Exhibit P60, according to which Mato Valjalo sustained his injuries “while performing his duty as a Dubrovnik Municipal Crisis Staff driver ”.
880. Mato Valjalo, T 1995-1997.
881. Mato Valjalo, T 2000-2002.
882. See supra, para 269.
883. Article 51 of Additional Protocol I provides, in so far as relevant:
“1. The civilian population and individual civilians shall enjoy general protection against 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.
2. The civilian population as such, as well as individual civilians, shall not be the object of attack. …
3. Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities.
4. Indiscriminate attacks are prohibited. Indiscriminate attacks are:
(a) Those which are not directed at a specific military objective;
(b) Those which employ a method or means of combat which cannot be directed at a specific military objective;
(c) Those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.
5. Among others, the following types of attacks are to be considered as indiscriminate :
(a) An attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects; and
(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 […]
8. Any violation of these prohibitions shall not release the Parties to the conflict from their legal obligations with respect to the civilian population and civilians, including the obligation to take the precautionary measures provided for in Article  57.”
884. Article 13 of Additional Protocol II in its relevant part reads:
“1. 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 shall be observed in all circumstances.
2. 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.
3. Civilians shall enjoy the protection afforded by this Part, unless and for such time as they take a direct part in hostilities.”
885. Article 52 of Additional Protocol I provides:
“1. Civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects which are not military objectives as defined in paragraph 2.
2. Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to 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.
3. In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used.”
886. Prosecution Final Brief, para  213.
887. Prosecution Final Brief, para  179 as amended by “Corrigenda to “Prosecution Final Trial Brief”, para 3.
888. Prosecution Final Brief, para  218.
889. Defence Final Brief, para 563.
890. Defence Final Brief, para 565.
891. Defence Final Brief, para 570.
892. Exhibit C1/2.
893. See supra, paras 193- 194; 211.
894. Blaskic Trial Judgement, para 180; Kordic Trial Judgement, para 328. The Chamber notes that the definition in the Kordic Trial Judgement further required that damage to civilian objects be extensive, while such requirement was not set out in the Blaskic Trial Judgement.
895. Blaskic Appeals Judgement, para 109; Galic Trial Judgement, para 44; Kordic Appeals Judgement, para 54, as revised by a “Corrigendum” of 26 January 2005.
896. See supra, paras 193- 194; 214; see also infra, para 288.
897. Kordic Appeals Judgement, para 67. The conclusion was based, inter alia, on the state practice concerning the matter at the time when the attacks occurred in the Kordic case, para  66. There is nothing to suggest that the state practice was different in this connection at the time relevant to the Indictment in the present case.
898. Kordic Appeals Judgement, paras 40-68.
899. See infra, para 326.
900. Prosecution Final Brief, paras  247-248, 255 and 263.
901. See supra, para 214.
902. It was the view of the Galic Trial Chamber that even though the main object of such excessively disproportionate attacks is not a civilian population or individual civilians, they could also qualify as direct attacks against civilians. See Galic Trial Judgement, para 57.
903. ICRC Commentary on the Additional Protocols, p 603. See also Kordic Appeals Judgement, para 47.
904. Akayesu Trial Judgement, para 582; Blaskic Trial Judgement, para 214.
905. Tadic Trial Judgement, para 638; Blaskic Trial Judgement, para 214.
906. Kordic Appeals Judgement, paras 48-51.
907. Blaskic Trial Judgement, para 180. See also Kordic Appeals Judgement, para 53.
908. See supra, para 281.
909. See supra, paras 99-119 ; 121-145.
910. See supra, paras 193- 194.
911. Defence Final Brief, paras 204 -206.
912. Prosecution Final Brief, paras  232-233.
913. Delo Jusic, T 3206-3207.
914. Mato Valjalo, T 2091.
915. Mato Valjalo, T 1997.
916. Article 52 para 2 of Additional Protocol I, see supra, footnote 885.
917. The headquarters of the Crisis Staff was located at the Rector’s palace, Delo Jusic, T 3207; Dordje Ciganovic, T 2903. Slavko Grubisic testified: “At the rector's palace, as far as I was able to see from the outside, because a shell had landed between the cathedral and the rector's palace, from the north, or rather, the south side, from the cathedral, on those beautiful stones, there are still marks made by shrapnel. It's pock-marked by shrapnel still.” T 1043. However, this evidence is not indicative of proving that the damage occurred as result of this shell. Moreover, P63/6, Annex 1 shows six projectile impacts marked as “4” and “6” in the northern and eastern area of the outer walls of the Rector’s Palace as being damaged in October/November.
918. Dr John Allcock, T 461-464 ; Exhibit P14.
919. Paul Davies, T 579.
920. Paul Davies, T 574.
921. Paul Davies, T 579.
922. With respect to the fact that the Old Town was a populated civilian town, the Chamber notes that a concert was held on 5 December 1991 to commemorate the 200 year anniversary of Mozart’s death, Delo Jusic, T 3067.
923. See supra, paras 56-60 ; 70.
924. Captain Nesic, T 8230; Lieutenant -Colonel Jovanovic, T 8112-8113; Exhibit D108.
925. Exhibit D108.
926. Captain Nesic, T 8231.
927. Exhibit D96, p 71, entry at 1600 hours.
928. See supra, para 214.
929. See supra, paras 193-194.
930. See supra, paras 250; 259; 270; 276.
931. See infra, paras 326-327.
932. For the general requirements for the application of Article 3, see supra, paras 227-233.
933. The Oxford English Dictionary defines the notion of devastation as “a wasting, spoiling, desolation, or destruction ” and refers to recorded usage of the term in this context from as early as 1502. It further defines the notion of “devastation” as “the action of devastating, or condition of being devastated, laying waste; wide-spread destruction, ravages.” The Oxford English Dictionary, Volume IV, Clarendon Press, Oxford, 1998.
934. The “List of War Crimes” prepared by the Commission on the Responsibility of the Authors of the War and on the Enforcement of Penalties, which was presented to the Preliminary Peace Conference in Paris on 29 March 1919, listed the war crime of “Wilful devastation and destruction of property ” as a crime recognised by international law at the time. Later, the Nuremberg Charter in Article 6(B) listed the two offences together (“wanton destruction of cities, towns or villages, or devastation not justified by military necessity”) as a war crime. The two crimes were also listed side by side in Article II, para 1(b) of the Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, December 20, 1945, 3 Official Gazette Control Council for Germany 50-55 (1946). The Chamber further notes Articles 8(2)(b)(xiii ) and 8(2)(e)(xii) of the Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9, 17 July 1998.
935. The only judgements dealing with this are the Blaskic Trial Judgement, paras 183, 510, 534; the Blaskic Appeals Judgement, para 426; the Brðanin Trial Judgement, paras 591-593, 600-639. The Trial Chamber in the Blaskic case found the accused Blaskic guilty under Article 3(b) with regard to “devastation not justified by military necessity” but did not provide for a definition of the elements, see Blaskic Trial Judgement para 183. Nor did the Appeals Chamber in the same case, stating solely that the events in Vitez and Stari Vitez constituted “devastation ” according to Article 3(b), see Blaskic Appeals Judgement, para 426. In the Brðanin case the Trial Chamber did not differentiate between the two offences set out in Article 3(b), see Brðanin Trial Judgement, paras 591- 593.
936. Kordic Trial Judgement, para 346 and Kordic Appeals Judgement, para 74. This definition was also accepted by the Trial Chamber in the Naletilic Trial Judgement, para 579.
937. Prosecution Final Brief, para  178; Defence Final Brief, para 610. The Chamber is aware of the fact that neither the Prosecution nor the Defence distinguish the crime of “destruction of property not justified by military necessity” underlying the Kordic Trial Judgement and the crime of “devastation not justified by military necessity” being at issue in the present case.
938. See e.g. Naletilic Trial Judgement, in which the Trial Chamber found the accused Naletilic guilty under Article  3(b) for “wanton destruction not justified by military necessity” regarding the village of Doljani, in which half of the houses had been destroyed, paras 584, 596.
939. The same approach was used in the Galic Trial Judgment, para 51. This corresponds with the definition of a military objective as referred to in the Final report of the United Nations Commission of Experts established pursuant to Security Council Resolution 780 (1992), Annex XI.A, The battle of Dubrovnik and the law of armed conflict, X. C., according to which “military objectives are those objects which by their nature, location, purpose or use: (a) make an effective contribution to military action, and (b) whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage”. For additional definitions of military necessity, see also Article 14 of the 1863 Lieber Code as follows: “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.” See also the ICRC Dictionary of the international law of armed conflict, according to which “military necessity, in its wider sense, means doing what is necessary to achieve war aims ” (Pietro Vierri, Dictionary of the international law of armed conflict, ICRC, 1992, p 75).
940. Galic Trial Judgment, para 51.
941. See supra, paras 193- 194; 214.
942. See Kordic Trial Judgement, para 346; Brðanin Trial Judgement, para 593.
943. Blaskic Trial Judgement, para 185.
944. Naletilic Trial Judgement, para 604.
945. Naletilic Trial Judgement, para 605.
946. Kordic Trial Judgement, para 361.
947. Article 1, The Hague Convention of 1954.
948. Article 53, Additional Protocol I; Article 16, Additional Protocol II.
949. Kordic Appeals Judgement, para 91.
950. The Chamber makes this clarification in light of the recent Kordic Appeals Judgement in which the Chamber found that not all educational institutions listed in Article 3(d) of the Statute would qualify as cultural property protected under Article 53 of Additional Protocol I. It held that some educational institutions would be protected as civilian objects under Article 52 of Additional Protocol I instead of cultural property under Article  53. (Kordic Appeal Judgement, para 92).
951. See also, third Tadic condition, supra, para 232. Tadic Appeal Jurisdiction Decision, para 94.
952. Article 27 of The Hague Regulations of 1907 reads in the relevant part “…provided they are not being used at the time for military purposes.”
953. Article 4, para 1 of The Hague Convention of 1954.
954. Article 4, para 2 of The Hague Convention of 1954.
955. Article 53, Additional Protocol I; Article 16, Additional Protocol II.
956. Blaskic Trial Judgement, para 185; Kordic Trial Judgement, para 362; Naletilic Trial Judgement, para 922; Brdjanin Trial Judgement, para 598.
957. As Article 27 of The Hague Regulations explicitly refers to “in sieges and bombardments”, it is not because of the location of cultural property, but because of their use when cultural property loses its protection. Article 16 of the Second Protocol of the Hague Convention of 1954 strengthens this view. It states, as a waiver of the protection of cultural property, that “ when and as long as (i) that cultural property has, by its function, been made into a military objective”. (emphasis added). See also Naletilic Trial Judgement, para 604.
958. Defence Final Trial Brief, paras  615, 617.
959. In the course of the Rule 98bis Decision, the original list of 450 buildings listed in Schedule II to the Indictment, which had been allegedly destroyed and damaged as a result of the 6 December shelling, was substantially reduced.
960. Rule 98bis Decision, Annex: Part A listed 96 buildings and structures identified in Schedule II of the Indictment; Part B listed 20 buildings and structures that could not be readily identified in Schedule II of the Indictment but which were located in the Old Town.
961. Indictment, para 23.
962. Prosecution Final Brief, paras 193-194.
963. Prosecution Final Brief, para  183.
964. Prosecution Final Brief, para 183.
965. Prosecution Final Brief, paras  193-194; the Prosecution marked all 116 buildings and structures, plus C1, on the map submitted as Annex IV to its Brief.
966. Defence Final Brief, para 510. The submissions of the Defence on the military presence in the Old Town and military objectives are presented in supra, paras 182-214.
967. Defence Final Brief, paras 510, 520.
968. Lucijana Peko, T 1966-1967; Zineta Ogresta, T 3475; Witness A, T 3636; Nikola Jovic, T 2952, 2964-2965; Slavko Grubisic, T 1045; Slobodan Vukovic, T 5826-5829.
969. Dordje Ciganovic, T 2734-2735 ; Lars Brolund, T 879-881; Per Hvalkof, T 2208, 2214; Minister Rudolf, T 5619; Colin Kaiser, T 2435-2436.
970. Per Hvalkof, T 2214, T 2208.
971. Exhibit P66 at 34:51-37:00; 37:38-37:53; Exhibit P145 at 00:08-21:15; Exhibit P78 at 13:40-43:29.
972. Exhibit P164 describes the damage as “significant”, p 2; Exhibit P63/6 “Houses were smoking, rubble was everywhere and the streets were dangerous as broken tiles were being thrown down from the roofs and cornices and bits of roof threatened to fall off, though this did not prevent anyone from passing by anyway […] the people of Dubrovnik […] stared at the damage in astonishment.”, p 32; Exhibit C1/1, pp 16-23.
973. See supra, paras 99-119 ; 121-145.
974. See Annex I. The Chamber has retained both the sequential numbers, corresponding to the original 450 buildings and structures as they appear in Schedule II to the Indictment, and the sequential numbers (A1-A96 and B1-B20) given in the course of the Rule 98 bis Decision, for the purposes of identification.
975. See Annex I Nos: J9, J10, J11, J20, J21 and J26. For the Chamber’s position on the Defence argument that five out of the six burnt buildings were owned “by persons from Serbia or Montenegro ” (Defence Final Brief, para 518), see supra paras 180-181.
976. Amongst the structures which sustained damage during the October and November shelling of the Old Town were the Franciscan monastery, Sponza Palace and the city port. See supra, paras 50 and 62.
977. E.g. Franciscan Monastery, Orthodox Church, St Vlaho (St Blaise) Church, Mosque, Synagogue, Onofrio Fountain, Cathedral etc. See Annex I, the buildings listed under Nos: J4, J16, J13, J19, J35, J7 and J12.
978. See Annex I, e.g. Nos: J11, J14, J15, J17, J22, J23, J25, J34, J39, J46 and J49.
979. The Institute Report was marked for identification as Exhibit MFI/P51 but was never admitted into evidence in its entirety. However, the extracts from it were admitted as Exhibits P174, P212 and P52. See Prosecutor v Pavle Strugar, Case No. IT-01-42-T, Decision on the Admissibility of Certain Documents, 26 May 2004, pp 8-11.
980. It has been effectively pointed out during the cross-examination of Colin Kaiser that the damage described as damage of 6 December 1991 also included other damage which may have been incurred earlier (T 2556-2574). Colin Kaiser states that although the intention was to catalogue damage from 6 December 1991, it appears that other damage has been recorded. He could not guarantee that all the damage from the earlier period is contained in the report  (T 2580-2584); Lucijana Peko, although insisting that during inspections she was able to “distinguish between old damage and recent damage” (T 1910-1911), concedes that she was not asked to distinguish between damage sustained in October /November and December and that, although, she was asked to “register all the damage that was sustained on the 6th of December”, the Institute Report includes the damage from all three months, T 1912.
981. Lucijana Peko confirms the list of buildings (Exhibit P52) which she personally examined, T 1862; 1944; Slobodan Vukovic confirms the accuracy of the extracts from the Report on buildings which he personally examined (Exhibit P174), T 5922.
982. E.g. Slobodan Vukovic, T 6087-6093, 6101; Lucijana Peko, T 1922 ; 1923-1924.
983. Slobodan Vukovic, T 6045-6047 ; Lucijana Peko, T 1922-1923. The matter was also raised in the Defence Final Brief, para 519 and the Prosecution Final Brief, paras 201-202.
984. See e.g. Slobodan Vukovic, T 6052-6056.
985. Slobodan Vukovic, T 5900-5901, 6080-6081; Lucijana Peko, T 1871, 1891-1895, 1973-1974; Colin Kaiser, T 2555.
986. Colin Kaiser, T 2695-2696.
987. E.g. when video evidence was indicative of the recent damage, i.e., amount of debris, the Chamber could conclude that the damage was recent. Here the Chamber also recalls the testimony of Slobodan Vukovic who said that it was an “instantaneous” practice to clear the streets of debris, Slobodan Vukovic, T 5830-5831.
988. Colin Kaiser, T 2431-2432.
989. The Old Town comprised: “The urban historical complex of Dubrovnik includes all the buildings erected from the XIIth to the XVIth century, within the precincts of the fortified walls. It covers an area of 15,2 ha […] The boundaries of the historical urban complex are precisely defined by the fortified walls, the former moats and, on the southern side, by the steep coast-line.”, P63/2, p 1.
990. Colin Kaiser, T 2378-2379, Exhibits P63/2, P63/7; Exhibit P14, p 11.
991. Convention concerning the protection of the world cultural and natural heritage, adopted by the General Conference at its seventeenth session, Paris, 16 November 1972, Exhibit P63/11, Article 1.
992. See supra, paras 193- 194.
993. See supra, paras 203- 214.
994. See supra, paras 214; 285-288.
995. See supra, para 214.
996. See supra, para 21.
997. The video evidence shows clearly visible emblems indicating that the buildings and the structures within the Old Town were protected, Minceta Fort, Exhibit P78 at 13:11-13:20, 13:05-13:10, 17:19 -17:27, 38:21-38:32. See especially the evidence of Witness B, a JNA soldier positioned at Zarkovica during the attack on the Old Town on 6 December 1991. He testified that, on 6 December 1991, he observed some flags flying over the buildings. He personally did not know what the flags meant, “but the others were saying that those flags were there to protect the section of the town in the sense that that portion of the town was not to be targeted”, T 5047-5048. Colin Kaiser further testified about the raising of three UN flags over three bastions of the walls of the Old Town on 27 November 1991, T 2384-2387.
998. Kordic Trial Judgement, para 388.
999. Blaskic Trial Judgement, para 281; Kordic Trial Judgement, para 388. In this respect, ordering “ may be inferred from a variety of factors, such as the number of illegal acts, the number, identity and type of troops involved, the effective command and control exerted over these troops, the logistics involved, the widespread occurrence of the illegal acts, the tactical tempo of the operations, the modus operandi of similar acts, the officers and staff involved, the location of the superior at the time and the knowledge of that officer of criminal acts committed under his command”, Galic Trial Judgement, para 171.
1000. Kordic Trial Judgement, para 387; Kvocka Trial Judgement, para 252; Naletilic Trial Judgement, para 60.
1001. The Appeals Chamber has recently stated that a person “who orders an act or omission 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 establishing liability under Article 7(1) pursuant to ordering”, Blaskic Appeals Judgement, para 42 (emphasis added ). In this respect, the Chamber refers to the ILC Commentary on Article 6 of the Draft Code of Crimes Against The Peace and Security of Mankind, dealing with the responsibility of a superior for ordering the commission of a crime, which states that “a corps commander must be held responsible for the acts of his subordinate commander in carrying out his orders…”, Report of the International Law Commission on the work of its 48th session, UN doc.A/51/10, p 36.
1002. Kordic Trial Judgement, para 387; Kvocka Trial Judgement, para 252; Naletilic Trial Judgement, para 60. The “but for” test was not adopted in this respect.
1003. Kvocka Trial Judgement, para 252.
1004. Blaskic Appeals Judgement, para 42; Kordic Appeals Judgement, para 30.
1005. Galic Trial Judgement, para 172, Celebici Trial Judgement, para 328.
1006. Vasiljevic Appeals Judgement, paras 120 and 128.
1007. Indictment, para 15.
1008. Prosecution Final Brief, para  266.
1009. Prosecution Final Brief, para  268.
1010. Prosecution Final Brief, para  270.
1011. Prosecution Final Brief, para  271.
1012. Prosecution Final Brief, para  274.
1013. Prosecution Final Brief, para  272.
1014. Defence Final Brief, para  583.
1015. Defence Final Brief, para  588.
1016. Defence Final Brief, para  592.
1017. Defence Final Brief, para  591.
1018. Defence Final Brief, para  593.
1019. Defence Final Brief, paras  584-587.
1020. See supra, para 167.
1021. See supra, para 169.
1022. See supra, paras 166 -167.
1023. See supra, para 85.
1024. See supra, paras 85 -91.
1025. See supra, paras 90 -91.
1026. Minister Rudolf, T 5618.
1027. See supra, para 91.
1028. Admiral Jokic, T 4132-4133. Admiral Jokic specified that Captain Kovacevic’s presence in Trebinje on 5 December 1991 was confirmed by two officers from the command of the 2 OG and by Captain Kovacevic himself when Admiral Jokic spoke with him before his transfer to The Hague, T 4132 -4133; 4936.
1029. Admiral Jokic, T 3891-3892.
1030. See supra, para 129.
1031. See supra, para 122.
1032. See supra, paras 123 -125.
1033. See supra, paras 196 -214.
1034. See supra, paras 193 -194; 211-214.
1035. See supra, para 167.
1036. See supra, paras 48 -50; 61-67.
1037. Following the shelling of the Old Town in November 1991, Admiral Jokic conducted an investigation and concluded that the 3/472 mtbr and possibly the artillery of the 472 mtbr were in a position to shell the Old Town. Admiral Jokic spoke inter alia with the Accused requesting the resignation of the above two officers, T 3996-3998.
1038. Blaskic Appeals Judgement, para 46; Vasiljevic Appeals Judgement, para 102; Prosecutor v Dusko Tadic, Case IT-94-1-A, Judgement, 15 July 1999 (hereinafter “Tadic Appeals Judgement”), para 229; Celebici Appeals Judgement, para 352.
1039. Blaskic Appeals Judgement, para 48. See also Aleksovski Trial Judgement, para 62, Kunarac Trial Judgement, para 391; Kvocka Trial Judgement, para 256; Naletilic Trial Judgement, para 63.
1040. Blaskic Appeals Judgement, para 48. See also Simic Trial Judgement, para 162; Kvocka Trial Judgement, para 256.
1041. Blaskic Appeals Judgement, para 48.
1042. Tadic Appeals Judgement, para 229: “The aider and abettor carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crim … and this support has a substantial effect upon the perpetration of the crime.” [emphasis added]; Vasilijevic Appeal Judgement, para 102; Blaskic Appeal Judgement, para 45.
1043. Blaskic Appeals Judgement, para 47. See also Krnojelac Trial Judgement, para 88, Kunarac Trial Judgement, para 393.
1044. Blaskic Trial Judgement, para 284; Aleksovski Trial Judgement, para 65; Furundzija Trial Judgement, para 274
1045. Vasiljevic Trial Judgement, para 70.
1046. Simic Trial Judgement, para 162.
1047. Tadic Appeals Judgement, para 229; Aleksovski Appeals Judgement, para 162, referring to the Furundzija Judgement, para 249. Blaskic Appeals Judgement, para 49.
1048. Celebici Trial Judgement, para 328; Tadic Trial Judgement, 676.
1049. Aleksovski Appeals Judgement, para 162.
1050. Blaskic Appeals Judgement, para 50. See also Naletilic Trial Judgement, para 63; Kvocka Trial Judgement, para 255.
1051. Indictment, para 15.
1052. Prosecution Final Brief, para  278.
1053. Defence Final Brief, para 596.
1054. See supra, para 167.
1055. See supra, paras 338 -347.
1056. See infra, para 418.
1057. Exhibit P23.
1058. See infra, paras 428 -429.
1059. See infra, para 444.
1060. Celebici Appeals Judgement, para 195; Celebici Trial Judgement, para 343.
1061. For application of the principle of command responsibility to internal armed conflicts, see Prosecutor v Hadzihasanovic et al., Case No IT-01-47-AR72, Appeals Chamber Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 16 July 2003, para  31.
1062. Celebici Trial Judgement, para 346. See also Kordic Trial Judgement, para 401; Blaskic Trial Judgement, para 294; Kovcka Trial Judgement, para 314.
1063. Aleksovski Appeals Judgement, para 76. See also ICRC Commentary on the Additional Protocols, which states that “responsibility for a breach consisting of a failure to act can only be established if the person failed to act when he had a duty to do so.”, p  1010. See also the ILC commentary on the 1996 Draft Code of Crimes Against The Peace and Security of Mankind, Report of the International Law Commission on the work of its 48th session, UN doc.A/51/10, p. 36.
1064. Celebici Trial Judgement, para 377.
1065. Celebici Trial Judgement, para 370.
1066. The Appeals Chamber endorsed the finding of the Trial Chamber that “it is necessary that the superior have effective control over the persons committing the underlying violations of international humanitarian law, in the sense of having the material ability to prevent and punish the commission of these offences”, Celebici Trial Judgement, para 378.
1067. Celebici Appeals Judgement, para 256. In this respect, factors indicative of an accused’s position of authority and how means of effective control may be demonstrated may include the official position held by the accused, his capacity to sign orders, whether de jure or de facto, the procedure for appointment, the position of the accused within the military or political structure and the actual tasks that he performed. See Kordic Trial Judgement, paras 418-424. The Appeals Chamber has rejected the argument that a superior may be held criminally liable on the basis of his powers of influence as it held that “substantial influence as a means of control in any sense which falls short of possession of effective control over subordinates” (i.e. possession of material ability to prevent or to punish) has no standing of rule of customary law, especially such that may trigger criminal liability. See Celebici Appeals Judgement, para 266.
1068. See infra, para 391.
1069. Celebici Appeals Judgement, para 193.
1070. Celebici Appeals Judgement, para 195.
1071. Celebici Appeals Judgement, para 303.
1072. As stated in the ICRC Commentary in relation to Article 87 of Additional Protocol I dealing with the duty of commanders, “SaC commander may, for a particular operation and for a limited period of time, be supplied with reinforcements consisting of troops who are not normally under his command. He must ensure that these members of the armed forces comply with the Conventions and the Protocol as long as they remain under his command.” See ICRC Commentary on the Additional Protocols, p 1019.
1073. Kunarac Trial Judgement, para 399.
1074. ICRC Commentary on the Additional Protocols, p 1013. The Military Tribunal hearing the High Command Case similarly held that “ScCriminality does not attach to every individual in this chain of command from that fact alone. There must be a personal dereliction. That can occur only where the act is directly traceable to him or where his failure to properly supervise his subordinates constitutes criminal negligence on his part. In the latter case it must be a personal neglect amounting to a wanton, immoral disregard of the action of his subordinates amounting to acquiescence.” United States. v. Wilhelm von Leeb et al., Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, Vol. XI, pp 543-544.
1075. United States v. Soemu Toyoda, Official Transcript of the Record of Trial, p 5006 (emphasis added). In this respect, the Trial Chamber further refers to the following finding of the Military Tribunal in the Hostage Case in relation to the defendant Dehner : “The defendant excuses his indifference to all these killings by saying that it was the responsibility of the division commanders. We agree that the divisional commanders are responsible for ordering the commission of criminal acts. But the superior commander is also responsible if he orders, permits, or acquiesces in such criminal conduct. His duty and obligation is to prevent to acts, or if they have been already executed, to take steps to prevent their recurrence.” United States v. Wilhelm List et al., Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, Vol. XI, p 1298.
1076. Report of the International Law Commission on the work on its forty-eight session, 6 May-26 July 1996, UN doc. A/51/10, p 37.
1077. Blaskic Trial Judgement, para 303, referring to Aleksovski Trial Judgement, para 106.
1078. Celebici T