Prosecutor v. Galić (Trial Judgment)

The defendant was one of three officers in command of the Bosnian-Serb Army operating in the area of Sarajevo (“SRK”) during the 1992 siege of Sarajevo. He was the commander for the longest period, almost two years, from around 10 September 1992 to 10 August 1994. The Prosecution alleged that during his command he conducted a protracted campaign of sniping and shelling against civilians in Sarajevo.

The Prosecution alleged that the defendant should incur individual criminal responsibility under Articles 7(1) and 7(3) of the Statute of the the International Criminal Tribunal for the Former Yugoslavia (“Statute”) for his acts relating to the crimes of terror, attacks on civilians, murder, and inhumane acts committed against civilians in the city of Sarajevo. Specifically, the prosecution alleged that the defendant had coordinated a protracted campaign of sniper attacks and mortar shelling upon the civilian population of Sarajevo, resulting in thousands of civilians being killed or injured.

The Court first determined that attacks on civilians constitute a violation of customary international law, and that those who engaged in attacks on civilians could thus be held liable under Article 3 of the Statute. The Court defined an illegal attack on civilians to be an act of "violence wilfully directed against the civilian population or individual civilians not taking direct part in hostilities causing death or serious injury to body or health within the civilian population." The Court then determined that the crime of terror was a violation of the laws and customs of war that the defendant was subject to during his time as commander.

The Court also found that a “campaign" of sniping and shelling of civilians had been conducted by the SRK in Sarajevo, defining "campaign" as military actions involving widespread or systematic shelling and sniping of civilians resulting in civilian death or injury. The Court based this decision on the testimony of over 170 witnesses, many of whom had testified that no civilian activity and no areas of Sarajevo held seemed to be safe from sniping or shelling attacks from SRK-held territory. The testimony revealed that civilians were targeted during funerals, in ambulances, in hospitals, on trams, on buses, when driving or cycling, at home, while tending gardens or fires or clearing rubbish in the city.  Residents of urban or rural areas of Sarajevo testified about the targeting of civilians fetching water, shopping, gathering in a square, and attending sportive festivities organised on a public day. Even children were targeted in schools, or while playing outside, riding a bicycle, near their home, or in the street.

The Court found that the crimes of attack on civilians, terror, murder, and inhumane acts had been committed by SRK forces in Sarajevo and next examined whether the defendant could be held personally liable for those crimes pursuant to Article 7(1) of the Statute as "a person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime." The Court examined four factors: (1) whether the defendant was in effective command of the SRK forces throughout the relevant period; (2) whether he knew of the crimes proved at trial; (3) whether he took reasonable measures upon knowing of the crimes; and (4) whether he and his subordinates acted in furtherance of a plan. The Court found that the defendant was in control of his troops and issued them commands, knew of the crimes committed, did not take reasonable steps to prevent the crimes, and was acting in furtherance of a plan. Therefore, he was liable for the crimes of terror, murder, and inhumane acts. He was not convicted of attacks on civilians because this charge was subsumed by the crime of terror.

The defendant was sentenced to 20 years in prison.

"The Trial Chamber recalls that the provision in question explicitly confirms the customary rule that civilians must enjoy general protection against the danger arising from hostilities. The prohibition against attacking civilians stems from a fundamental principle of international humanitarian law, the principle of distinction, which obliges warring parties to distinguish at all times between the civilian population and combatants and between civilian objects and military objectives and accordingly to direct their operations only against military objectives. In its Advisory Opinion on the Legality of Nuclear Weapons, the International Court of Justice described the principle of distinction, along with the principle of protection of the civilian population, as 'the cardinal principles contained in the texts constituting the fabric of humanitarian law' and stated that 'States must never make civilians the object of attack […].'" Para. 45.

"The Majority is of the view that an offence constituted of acts of violence wilfully directed against the civilian population or individual civilians causing death or serious injury to body or health within the civilian population with the primary purpose of spreading terror among the civilian population – namely the crime of terror as a violation of the laws or customs of war – formed part of the law to which the Accused and his subordinates were subject to during the Indictment period. The Accused knew or should have known that this was so. Terror as a crime within international humanitarian law was made effective in this case by treaty law. The Tribunal has jurisdiction ratione materiae by way of Article 3 of the Statute. Whether the crime of terror also has a foundation in customary law is not a question which the Majority is required to answer." Para. 138.

"The concerted efforts of the SRK to stop at a given moment the direct or indiscriminate sniping and shelling of the city and then let it increase to its previous level again, from so many different locations, the use of certain types of weapons or the sheer amount of ammunition fired without direct military purpose leads to the only reasonable inference that direct or indiscriminate fire upon civilians by SRK forces was ordered by the chain of command to terrorise the civilian population of Sarajevo. That conclusion is supported by the fact that it is not conceivable that the duration of the period over which crimes against civilians were committed is not the result of a deliberate action to have the situation continue." Para. 737.

"The Trial Chamber has already found that the Bosnian Serb troops positioned in and around Sarajevo were under the command of General Gali}, who exerted control over them. The Trial Chamber has also found that General Gali} was fully appraised of the criminal acts committed by forces under his command and within his zone of responsibility, which, at the least, he did not prevent the commission nor did he punish the perpetrator(s) thereof. According to the Majority, there is an irresistible inference to be drawn from the evidence on the Trial Record that what the Trial Chamber has found to be widespread and notorious attacks against the civilian population of Sarajevo could not have occurred without it being the will of the commander of those forces which perpetrated it and that the lack of measures to prevent illegal sniping and shelling activities was deliberate." Para. 742.