Table of contents: 3. The perpetrator directed an attack. P.1. Evidence of requirements for an attack. P.2. Evidence of attack occurring. P.3. Evidence with regard to direction of attack. P.4. Evidence of military presence in a particular area from which the attack was directed. Element: 3. The perpetrator directed an attack. P.1. Evidence of requirements for an attack. A. Legal source/authority and evidence: Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 282: "282. Pursuant to Article 49(1) of Additional Protocol I to the Geneva Conventions "attacks" are acts of violence against the adversary, whether in offence or in defence. According to the ICRC Commentary an attack is understood as a "combat action" and refers to the use of armed force to carry out a military operation at the beginning or during the course of armed conflict.903 […]" "903 ICRC Commentary on the Additional Protocols, p 603. See also Kordić Appeals Judgment, para 47." Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement (AC), 17 December 2004, para. 47: "47. The term attack is defined in Article 49 of Additional Protocol I as "acts of violence against the adversary, whether in offence or in defence".49 Therefore, in determining whether an unlawful attack on civilians occurred, the issue of who first made use of force is irrelevant." "49. This definition applies to the crime of unlawful attacks against civilian objects as well." Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, para. 52: "52."Attack" is defined in Article 49 of Additional Protocol I as "acts of violence against the adversary, whether in offence or in defence." The Commentary makes the point that "attack" is a technical term relating to a specific military operation limited in time and place, and covers attacks carried out both in offence and in defence.97 The jurisprudence of the Tribunal has defined "attack" as a course of conduct involving the commission of acts of violence.98" "97 ICRC Commentary, para. 4783. 98Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 54; Kunarac Trial Judgment, para. 415." Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Judgement – Volume 1 (TC), 31 March 2016, para. 204: 204. For the same reasons, the Chamber, by a majority, Judge Lattanzi dissenting, was not in a position to find that the following crimes were committed in the period covered by the Indictment: a. wanton destruction, or devastation not justified by military necessity of the city and homes of Vukovar;172 homes in the village of Svrake (Greater Sarajevo);173 of the city and homes in Ilijaš (Greater Sarajevo); 174 the city and homes of Mostar;175 and the villages of Donja Bijenja, Gornja Bijenja, Postoljani, Presjeka, Kljuna, Borovčići, Krusevljani, Pridvorci and Hrušta (Nevesinje municipality);176 25 Sep 2021 Page 1 of 5 172. The majority notes that, overall, concerning all the allegations of destruction, in order to nd that destruction was committed as a war crime, not justied by any military necessity, the majority rst had to be in a position to assess the proportionality of such destruction, the forces that were present and, in particular, the level of resistance offered to the Serbian forces. In the case at hand, however, the evidence in the case le only shows the actions of the Serbian forces. Under these circumstances, the majority was unable to qualify this destruction as a war crime. On the destruction in Vukovar, the majority relied on the following evidence: the Decision of 8 February 2010, Annex; Vesna Bosanac; Emil Čakalić; Dragutin Berghofer; Goran Stoparić; VS-002; VS-021; VS-051; P55; P57; P91; P183; P195; P261; P268 under seal; P275; P278; P291; P407; P594; P595; P603; P844 under seal; P845; P921; P1001; P1076; P1161 under seal; P1260; P1291; P1373 under seal; P1374 under seal; P1376 under seal; P1377 under seal. 173. The majority relied on the following evidence: Safet Sejdić; P463; P1346. 174. During the attack on Lješevo village, Serbian forces, including in particular Vaske’s unit, members of the Ilijaš TO, but also other Serbs whose afliation to a particular unit has not been established, destroyed a number of houses and barns, including those of Munib Bulbul, Ismet Omanović and Nimza Sidić. Nevertheless, the majority does not have the supplementary evidence that would enable it to establish whether a considerable amount of property was destroyed. The majority relied on the following evidence: VS-1055; VS-1111; P449 under seal; P451 under seal; P840. 175. Staring in April 1992, the JNA, which included SRS volunteers in its ranks, attacked the city of Mostar and, from mid-May of the same year, shelled the city indiscriminately with mortars for 30 hours. The majority can therefore reasonably infer that a signicant amount of property was destroyed. Nonetheless, the majority does not have sufcient evidence at its disposal to nd beyond all reasonable doubt that this destruction was not justied by military necessity. The majority relied on the following evidence: Zoran Rankić; VS-1067; C11; P31; P524; P659 under seal; P843; P846; P1052 under seal; P1074. 176. The majority relied on the following evidence: the Decision of 23 July 2010, Annex; Ibrahim Kujan; Vojislav Dabić; VS-1022; VS-1051; P483 under seal; P524; P880 under seal; P881 under seal. b. deliberate destruction of sacred sites of Muslims in Zvornik;177 of the mosque of Svrake/Semizovac and the Roman Catholic church of Semizovac, in the Vogošća municipality (Greater Sarajevo); 178 of the three mosques of Stari Ilijaš, Gornja Misoča and Donja Misoča, as well as other institutions dedicated to the Muslim or Catholic religion in the area of Ilijaš (Greater Sarajevo);179 of the Sevri Hadži-Hasan mosque and the Franciscan church in Mostar;180 and of several mosques and one Catholic church after the Serbian forces had taken control of the town of Nevesinje in June 1992.181 177. The majority relied on the following evidence: András Riedlmayer; VS-037; VS-038; P444; P1044; P1045; P1144 under seal; P1401 under seal. 178. The majority was able to establish that the mosque at Svrake/Semizovac and the Roman Catholic church at Semizovac were completely or partially destroyed. Yet, the majority does not have other information that would enable it to identify, for example, the perpetrators. The majority relied on the following evidence: Safet Sejdić; P1045. 179. The majority was able to note this destruction, but was not in a position to establish that it occurred during the period covered by the Indictment. The majority relied on the following evidence: VS-1055; P840; P1045. 180. The Chamber accepts the testimony of the expert András Riedlmayer who testied to the destruction between April and May 1992 of the Sevri Hadži-Hasan mosque in Mostar. The Chamber also accepts the evidence of Zoran Tot who said in his written statement that, in the period between March and May 1992, Srđan Ðurić, a member of the SRS volunteers, went out at night into the city of Mostar carrying two to four hand-held rocket launchers, and opened re of his own accord on the minaret of a mosque in Mostar. The majority notes that the statements of Zoran Tot and the evidence provided by Expert Witness András Riedlmayer are mutually corroborative on the destruction of the minaret of a mosque, and that this was an isolated act. The 25 Sep 2021 Page 2 of 5 majority also notes that the periods indicated by these two witnesses concerning this destruction overlap. The majority deems, nonetheless, that it is not in a position to establish a link between these two testimonies because of, on the one hand, a lack of precision between the dates indicated as the time of the mosque’s destruction and, on the other hand, even if in both cases the destruction of the minaret of a mosque is involved, the majority is not able to nd beyond all reasonable doubt that the mosque Zoran Tot described as having been destroyed by Srđan Ðurić was indeed the Sevri Hadži-Hasan mosque whose destruction is described in the expert report of András Riedlmayer. The majority nds that the Sevri Hadži-Hasan mosque in Mostar was destroyed in an isolated act, but the available evidence does not allow it to determine either the exact circumstances or the perpetrators of this destruction. Similarly, the majority notes that the available evidence does not allow it to make any precise nding on the time of the destruction of the Franciscan church. The majority is therefore unable to nd beyond all reasonable doubt that these incidents fall within the period of the Indictment. The majority relied on the following evidence: “Decision on Expert Status of András Riedlmayer”, 8 May 2008; András Riedlmayer; P843; P1044; P1045. 181. The majority relied on the following evidence: Ibrahim Kujan; András Riedlmayer; VS-1067; P524; P880 under seal; P1045; P1052 under seal. P.2. Evidence of attack occurring. A. Legal source/authority and evidence: Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, paras. 100, 103: "100. Zineta Ogresta, residing at Od Sigurate Street 2 in the Old Town, and Mato Valjalo, who was staying with his father-in-law in his apartment in the Old Town on Prijeko Street,281 both saw shells falling on the fortress at Mount Srdj around or just after 0600 hours.282 Ivo Vlasica […] saw Srdj on his left where " large-scale shelling had started and a great deal of shooting"2.