1. Introduction
179. The Trial Chamber heard 171 witnesses, resulting in 22,016 pages of transcript. In addition, a total of 1,268 exhibits and 15 experts’ reports were admitted.
180. In August 2003, the Prosecution disclosed material after the closing of the case pursuant, inter alia, to its obligations under Rule 68 of the Rules. The Defence reacted and regarded part of this material exculpatory. The Trial Chamber, upon review of the material disclosed, finds that, apart from one piece of evidence, the evidence lately disclosed by the Prosecution is redundant or does not concern the Indictment Period. The only piece of evidence not discussed at trial consists of a video interview about an incident where the Bosnian Croat Army (HVO) allegedly shelled
303 Id., para. 239.
304 ^elebi}i Trial Judgement, para. 395.
305 Krnojelac Trial Judgement, para. 173; see also Krsti} Trial Judgement, para. 652.
held territory in Sarajevo.306 The Trial Chamber does not find that information related to this incident, even if true, tends to suggest the innocence or mitigate the guilt of the Accused or may affect the credibility of Prosecution evidence; in fairness to the Accused, this material is however admitted into evidence for the purpose of a better understanding of the overall context of the conflict in Sarajevo during the Indictment period. On 18 November 2003, the Trial Chamber was informed that the Prosecution had disclosed additional material to the Defence, and received it pursuant to Rule 67(D) of the Rules. The Trial Chamber asked for a position of the Defence on this additional material. The Defence has however not filed any comment with the Trial Chamber in the following thirteen days. In the silence of the Defence on the character of the material, the Trial Chamber does not consider this material, and refrains from any decision on the matter.
2. Definitions of “Campaign” and “Sniping”
(a) Campaign
181. The Indictment alleges the existence of a “campaign” without providing a definition of the term. The Prosecution’s understanding of the campaign can be derived relatively easily from the Indictment, which states that a “military strategy” of shelling and sniping was used to kill and wound the civilian inhabitants of Sarajevo; that this was “coordinated” and “protracted”; that the acts in question were “widespread or systematic”; and that they were performed between September 1992 and August 1994.307 In light of this, the Trial Chamber understands the word “campaign” in the context of the Indictment to cover military actions in the area of Sarajevo during the Indictment period involving widespread or systematic shelling and sniping of civilians resulting in their death or injury.
(b) Sniping
182. The Prosecution defines the term “sniping” as “fire from a small calibre weapon, such as ₣ağ rifle or machine-gun, from a concealed, or partially concealed, position”.308 The Defence contests
306 The video interview is contained in a CD-rom marked with the ERN number V000-0120.
307 In its Final Trial Brief, the Prosecution elaborated the notion of a “campaign”, to the extent of alleging that it was
“covert” (para. 62), that it had an "intensity" which was “modulated” (para. 67) and was “sensitive to international pressure” (para. 68), that it featured “widespread indiscriminate shelling” (para. 163), and that it was "widespread and systematic" (para. 571). In its closing arguments, the Prosecution associated the notion of “campaign” with a “pattern of behaviour”, “resources ... marshalled to achieve a particular objective”, “degree of planning”, “allocation of assets”, and so forth (T. 21991-2). The Trial Chamber does not find any of these submissions as substantially adding essential elements to the notion of “campaign” referred to in the Indictment.
308 Prosecution Pre-Trial Brief, footnote 3.
this definition as being too broad and defines “sniping” as fire from “a special rifle with ₣anğ optical sight” and claims that the SRK did not have such rifles.309
183. The Indictment does not give a definition of “sniping”. However, the counts related to sniping activity refer to “deliberate targeting of civilians with direct fire weapons,”310 and Schedule 1 of the Indictment alleges incidents perpetrated with weapons such as machine-guns.311 The Accused was therefore on notice that the “sniping” alleged against him was not limited to incidents committed with special sniping rifles equipped with an optical sight. Furthermore, the common definition of sniping is given in terms of the direct targeting of an individual or object, a special rifle not being a necessary part of the definition.312 While it is true that both Witness DP36,313 an SRK soldier, and Mustafa Kova},314 head of the Civil Defence in Sarajevo, limited the meaning to infantry weapons possessing an optical sight, Francis Briquemont, Commander of UN forces in Bosnia-Herzegovina in 1993-1994, defined a sniper as an elite firer who shoots from a long distance at individual targets,315 and John Hamill, an artillery officer who was a Military Observer with the United Nations (UNMO),316 said that a sniper, in a military sense, is somebody who will target specific individuals at long range and kill them.317 Hamill approved the definition of
“sniping” in a report entitled “Weaponry in the Former Yugoslavia” written by Tetsuo Ani, a Canadian army officer:
₣“sniping”:ğ a term used indiscriminately in the conflict of the former Yugoslavia, applied usually to the targeting of civilians, with a variety of single-shot and multiple-shot (machine guns) weapons. The expression derives from the fact that the source of fire is usually so well concealed that it is difficult to pinpoint. Sniping, in the military sense is conducted for specific purposes, sometimes using specialised weapons that are expressly designed for sniping.318
184. The Trial Chamber finds that in the context of the present case, sniping must be understood as direct targeting of individuals at a distance using any type of small calibre weapon.
309 Defence Final Trial Brief, para. 11; Acquittal Motion, para. 11.
310 Indictment, counts 2 to 4.
311 See for instance Scheduled Sniping Incident 15.
312 The Oxford English Dictionary (2nd edition, 1991) defines “to snipe” as “to shoot or fire at (men, etc.) one at a time, usually from cover and at long range.” The Collins Shorter Dictionary and Thesaurus (1995) gives this variety: “to shoot at enemy from cover.” Webster’s New Universal Unabridged Dictionary (1996) has it as “to shoot at individuals as opportunity offers from a concealed or distant position.”
313 Witness DP36, T. 18103.
314 Kova}, T. 836-7.
315 Briquemont, T. 10165-6.
316 Hamill, T. 6060.
317 Hamill, T. 6156.
318 P3675, p. 8; Hamill, T. 6208-10. Milenko Inđi}, liaison officer of the SRK, referred to “sniping” even more broadly, indicating that all infantry weapons were referred to as snipers during the war: T. 18570.
3. Evaluation of Evidence
185. The Trial Chamber, mindful that the burden of proof lies with the Prosecution, has evaluated the evidence adduced at trial in accordance with the Statute, the Rules, and accepted international standards and general principles of law.
186. The Indictment states that “All Counts in this indictment allege the totality of the campaigns of sniping and shelling against the civilian population but the scale was so great that the Schedules to the individual groups of counts in this indictment set forth only a small representative number of individual incidents for specificity of pleading.”319 The Indictment, insisting on the word
“campaign,” set out to make a wide-ranging case against General Galić.
187. The Appeals Chamber assented to this view, namely that the scheduling of certain incidents was necessary to satisfy the standard of specificity applying to indictments:
an indictment pleaded in the very general terms in the body of this indictment, without at least some of the details given in the two schedules, would not have given adequate notice to Galić of the nature of the case he had to meet. ₣...ğ Essential material facts omitted from the body of the indictment are the areas where the sniping and shelling caused injuries to the civilian inhabitants of Sarajevo, the approximate dates upon which the relevant events occurred, and also, in relation to the shelling, the areas from which the shelling originated. The only place where those material facts can be found is in the two schedules.320
188. Thus the Schedules serve a procedural requirement – that of proper notice. They should not be understood as reducing the Prosecution’s case to the scheduled incidents, and the trial was not conducted on that understanding. Much evidence was led tending to support the Prosecution’s general case, which on the face of it (“shelling and sniping killed and wounded thousands of civilians”)321 goes beyond what could reasonably be based on scheduled incidents. Therefore, the Trial Chamber has paid due attention to the scheduled incidents, for they are alleged to exemplify the overall situation in Sarajevo. In respect of these incidents, the Trial Chamber gave particular attention to questions of distance between the victim and the most probable source of fire; distance between the location where the victim was hit and the confrontation line; combat activity going on at the time and the location of the incident, as well as relevant nearby presence of military activities or facilities; appearance of the victim as to age, gender, clothing; the activity the victim could appear to be engaged in; visibility of the victim due to weather, unobstructed line of sight or daylight. The Trial Chamber was hence in a position to assess in each case, in accordance with the law set out in Part II of this Judgement and in fairness to the Accused, whether a scheduled incident
319 Indictment, para. 15.
320 Prosecutor v. Stanislav Galić, Decision ₣Appeals Chamberğ on Application by Defence for Leave to Appeal, 30 November 2001, para. 16.
is beyond reasonable doubt representative of the alleged campaing of sniping and shelling or whether it is reasonable to believe that the victim was hit by ABiH forces, by a stray bullet, or taken for a combatant.
189. At the same time, the Trial Chamber has given no less attention to evidence of non-scheduled sniping and shelling incidents as well as to evidence of other aspects of the situation in Sarajevo. The scheduled incidents have thus been considered by the Trial Chamber within a more general evidentiary context, reflecting how the great number of witnesses in the case understood them and explained them. Witness evidence together with documentary evidence has been chosen, combined, and arranged by the Trial Chamber in accordance with its relevance, the credibility of its source, and its probative value, with due regard to the fact that the present Indictment alleges unlawful conduct and responsibility for such conduct going beyond what is referred to in the scheduled incidents.
190. The Trial Chamber was confronted with the difficulty that maps used or marked by witnesses had no scale indicated on them. Some of these maps did, however, indicate minutes of latitude. It is common knowledge that one degree of latitude equals approximately 111 kilometres, irrespective of location, and that a minute is 1/60th of one degree. On this basis, the Trial Chamber has been able to determine or verify distances between points marked by witnesses on maps with an acceptable degree of accuracy. The Trial Chamber agrees with the Defence that the scale of the map admitted into evidence as exhibit C2 is 1:50,000.322
191. The Trial Chamber turns now to a review of events preceding the Indictment Period for a better understanding of the context in which the case is situated, in particular the history of the break-up of the Socialist Federal Republic of Yugoslavia (“SFRY”), which has been described in previous Judgements of this Tribunal and need not be repeated in lengthly detail here.323