US embassy cable - 03THEHAGUE3019

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