Identifier
Created
Classification
Origin
03THEHAGUE3019
2003-12-05 15:57:00
CONFIDENTIAL
Embassy The Hague
Cable title:  

ICTY: SIEGE OF SARAJEVO TRIAL ENDS WITH CONVICTION

Tags:  PREL PHUM BK HR SR NL ICTY 
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This record is a partial extract of the original cable. The full text of the original cable is not available.
C O N F I D E N T I A L SECTION 01 OF 02 THE HAGUE 003019 

SIPDIS

DEPARTMENT FOR S/WCI - PROSPER/RICHARD, EUR/SCE -
GREGORIAN/MITCHELL, L - TAFT, L/EUR - LAHNE, INR/WCAD -
SEIDENSTRICKER/MORIN

E.O. 12958: DECL: 1.6 FIVE YEARS AFTER CLOSURE OF ICTY
TAGS: PREL PHUM BK HR SR NL ICTY
SUBJECT: ICTY: SIEGE OF SARAJEVO TRIAL ENDS WITH CONVICTION

REF: WWW.UN.ORG/ICTY/GALIC/JUDGEMENT/GAL-TJ031205E .PDF

Classified By: Legal Counselor Clifton M. Johnson per reasons 1.5(b)-(d
)

C O N F I D E N T I A L SECTION 01 OF 02 THE HAGUE 003019

SIPDIS

DEPARTMENT FOR S/WCI - PROSPER/RICHARD, EUR/SCE -
GREGORIAN/MITCHELL, L - TAFT, L/EUR - LAHNE, INR/WCAD -
SEIDENSTRICKER/MORIN

E.O. 12958: DECL: 1.6 FIVE YEARS AFTER CLOSURE OF ICTY
TAGS: PREL PHUM BK HR SR NL ICTY
SUBJECT: ICTY: SIEGE OF SARAJEVO TRIAL ENDS WITH CONVICTION

REF: WWW.UN.ORG/ICTY/GALIC/JUDGEMENT/GAL-TJ031205E .PDF

Classified By: Legal Counselor Clifton M. Johnson per reasons 1.5(b)-(d
)


1. (SBU) Summary: A trial chamber of the International
Criminal Tribunal for the former Yugoslavia (ICTY) convicted
Stanislav Galic, commanding general of the Republika Sprpska
Army's (VRS) Sarajevo Romanija Corps (SRK) during 1992 to
1994, for his responsibility for attacks on the civilian
population of Sarajevo during what became known as the Siege
of Sarajevo. See ref. This judgment is significant because,
as the presiding judge explained, it involves the first
conviction by an international tribunal specifically for acts
of terror as war crimes, while it also contains substantial
discussion of law of war issues of interest to the USG. End
summary.


2. (SBU) On December 5, after hearing from 171 witnesses and
entering into evidence 1268 exhibits and 15 experts' reports,
Trial Chamber I of the ICTY convicted SRK General Stanislav
Galic of five counts of war crimes and crimes against
humanity and sentenced him to twenty years' imprisonment.
The trial involved one of the most internationally
recognizable features of the Balkan wars -- a two-year period
from 1992 to 1994 of the Bosnian Serb siege of Sarajevo.
While the judgment will not be the last word on the siege --
it will almost certainly go to appeal, and similar events
will be at issue in other cases before the Tribunal -- the
trial chamber's extensive factual and legal findings are
going to be difficult to ignore as part of the historical
record of that period. For instance, presiding Judge Orie
stated during the announcement of the judgment that "(t)he
evidence demonstrates beyond reasonable doubt that Sarajevo
civilians were indeed made the object of deliberate attack by
SRK forces." He went on, "They were attacked while attending
funerals, while in ambulances, trams, and buses, and while
cycling . . . These attacks were mostly carried out in

daylight. They were not in response to any military threat."
He concluded that the majority is "persuaded that the
attacks were not isolated incidents but amounted to a
widespread or systematic campaign." Moreover, it was a
campaign "intended primarily to terrorize the civilian
population" without any "discernible significance in military
terms." The chamber found that the prosecution proved SRK
responsibility for 18 of the 26 sniping incidents, and all
five of the shelling incidents, listed in the indictment.
The trial chamber found that Galic was individually
responsible for the proven sniping and shelling incidents.


3. (SBU) Apart from the historical significance of the
findings related to the siege of Sarajevo, among the most
significant portions of the judgment involve the trial
chamber's findings and application of the war crime of
terrorizing a civilian population. The majority emphasizes
that it had to consider not whether terrorism generally
exists as an international crime but whether "a specific
offence of killing and wounding civilians in time of armed
conflict with the intention to inflict terror on the civilian
population . . . is an offence over which (the Tribunal) has
jurisdiction." (NB: The Tribunal located its jurisdiction
over the terror count in Article 3 of the Statute, which
provides jurisdiction to prosecute violations of the "laws or
customs of war.") The majority answered in the affirmative,
noting that "acts or threats of violence the primary purpose
of which is to spread terror among the civilian population
are prohibited" by Article 51(2) of Additional Protocol I to
the 1949 Geneva Conventions (brought into effect here by the
May 22, 1992, agreement on the conduct of hostilities among
the Muslim, Croat and Serb parties to the conflict). The
chamber expressly does not address whether such a crime
exists under customary international law, basing it instead
on Additional Protocol I (to which the United States is not a
party). Notably, in discussing the elements of the war crime
of terrorizing the civilian population, the chamber
emphasizes that the prosecution must prove that the accused
"specifically intended" to terrorize the population -- mere
recklessness or foreseeability would not be sufficient.


4. (C) Judge Nieto-Navia, an ad-litem (i.e., non-permanent)
judge from Colombia, delivered a partly dissenting opinion in
which he challenged the majority's conclusions on terror as a
war crime and found "reasonable doubt" that the SRK committed
several of the sniping and shelling incidents or that General
Galic ordered any of them. He reasons that the trial chamber
should not have relied on conventional law to base its
jurisdiction over a terrorism war crime, and that because he
finds no such customary rule, the terror counts should have
been dismissed. Nieto-Navia did agree with the majority on
several of the sniping and two of the shelling incidents,
ultimately concluding -- almost as a footnote -- that "the
SRK either deliberately or recklessly fired upon civilians in
Sarajevo," resulting in murder and inhumane acts for which he
should receive ten years in prison. (NB: A well-placed
Registry source, long familiar with many of the judges and
their jurisprudence, told an Embassy legal officer that our
view of Nieto-Navia's dissent should take into account that,
in his view, he is a "bad, disinterested and arrogant judge."
Nieto-Navia had been a permanent judge who failed to get
reelected by the UN General Assembly in 2001, but was then
elected as an ad litem.)

5. (C) A member of the prosecution team told emboff late on
December 5 that some members of the Office of the Prosecutor
are disappointed that Galic was sentenced to only twenty
years. They will be meeting next week to consider whether to
appeal the sentence on that basis, as they are able under the
Rules of Procedure and Evidence. The same prosecutor also
said that, at the end of the trial, a principal defense
attorney told him, "see you in the appeal," strongly
indicating that Galic has already decided to appeal the
judgment against him.


6. (C) Comment: This morning's 334-page judgment deserves
careful analysis. While Embassy legal officers are just
starting to review it carefully, it is clear that the
decision, covering a crucial area of the law of armed
conflict that is relatively lightly addressed in existing
jurisprudence, touches many legal questions with implications
for the USG. For instance, the trial chamber helpfully notes
that, "(i)n determining whether an attack was proportionate
it is necessary to examine whether a reasonably well-informed
person in the circumstances of the actual perpetrator, making
reasonable use of the information available to him or her,
could have expected excessive civilian casualties to result
from the attack." We share the initial assessment of a key,
reliable member of the prosecution team that, while an
appeals chamber will give the trial chamber's judgment
careful scrutiny, it's main, apparently well-reasoned thrust
is likely to stand. End comment.
RUSSEL