#3201 Re: Radovan Karadžić u Haagu!
Posted: 28/03/2016 02:38
B. DISSENTING OPINION OF JUDGE BAIRD
6081. In this matter the majority was satisfied beyond reasonable doubt that the shell that struck
the Markale market on 5 February 1994 was fired from SRK held territory by SRK soldiers. I
respectfully disagree with this finding.
6082. In his Final brief at paragraph 2056, the Accused submitted that the UN investigators had
stated that in extracting the tail fin assembly from the crater, the FreBat 4 team (unavoidably)
disturbed the integrity of the crater for any purpose which followed. At paragraph 2069, the
Accused stated that the UN Investigative Team collectively and officially concluded that by the
time the team had conducted its analyses, six days had elapsed since the explosion: it was
reasonable to suspect that the crater had been thoroughly excavated by the local authorities during
that period, hence the angles measured on 11 February were not beyond suspicion. They concluded
that the results measured on 11 February were not sufficiently accurate to be used as a basis for a
finding. At paragraph 2073 the Accused stated that the UN Investigative Team concluded that
there was insufficient physical evidence to prove that one party or another had fired the mortar
bomb. And at paragraph 2075, the Accused demonstrated that the findings of the UN Investigative
Team were endorsed by Colonel Gauthier as he testified as a Defence witness in 2012. As far as I
am aware the accuracy of these submissions was never challenged, neither was it made the subject
of negative comment by the Chamber. Indeed, in some instances, the pertinent evidence was
actually received by the Chamber.
6083. As I see it, this is powerful language employed by the UN Investigative Team. They are in
effect saying that there is reasonable doubt that the shell was fired by the Bosnian Serb Forces, and
one must not lose sight of the fact that this is a report of Prosecution witnesses. The Prosecution
witness Zečević however, was of opinion that the shell could only have been fired from the Bosnian
Serb positions.
6084. What I was presented with therefore, was clear and indisputable conflict in the evidence of
the Prosecution witnesses. And this conflict went to the root of the Prosecution case.
6085. In this situation I am of the view that the majority should have been driven to resolve this
conflict in favour of the Accused.
6086. At paragraph 4247, the majority stated that while the Chamber heard evidence to the effect
that measurements and estimates of the angle of descent were unreliable in this incident due to the
crater having been disturbed, it was also struck by the fact that all but one of the estimated angle
ranges were relatively close to each other and in fact overlapped.
6087. Defence witnesses apart, it is the witnesses for the Prosecution whose evidence the majority
considered, and which evidence demonstrated that the measurements and estimates of the angle of
descent were unreliable due to the disturbance of the crater. There is no clear indication from the
majority whether they were accepting the evidence that the measurements and estimates of the
angle of descent were unreliable, or whether they were rejecting the evidence on this question. To
my mind there was consensus among the UN Investigators who attended the scene, that once the
Frebat 4 battalion had removed the tail fin without taking measurements it was not possible to
calculate the angle of descent.
6088. In the face of this evidence – evidence which I might add was pointedly favourable to the
Accused – I am hard pressed to see why the majority should go on to be ‘struck’ by the relative
closeness of the estimated angle ranges, bar one, and by their overlap.
6089. In a criminal matter where the burden is on the Prosecution to prove the guilt of the
Accused beyond the reasonable doubt, this evidence should have been enough to cause reasonable
doubt to intrude on the minds of the majority.
6090. Of some significance is the fact that the majority stated at paragraph 4248, that they could
not be sure that the speed of the shell as determined by Zečević was ‘absolutely accurate’,
particularly in light of Allsop’s evidence. Irrespective of the language used, the majority is
rejecting the evidence of Zečević in this regard, in favour of that of Allsop.
6091. It should be noted that the evidence of Zečević was that any inaccuracy in the measurement
of the depth of the crater would have affected the calculations of the impact velocity of the shell
and that it was more likely that the depth of the crater was not measured properly in this case, given
the disturbance to the crater during the investigations that took place on 5 and 6 February 1994.
6092. I come now to the question of the ‘common feature’ at paragraph 4248. The majority
noticed a ‘common feature’ in the evidence of Zečević, Higgs, Allsop and Subotić, that is to say,
that a mortar bomb fired at one of the higher charges would typically result in the stabiliser
penetrating the ground and embedding therein. The majority noted that Higgs referred to ‘two
highest charges in this respect’, Zečević to charges four, five and six, and Subotić to charge three or
higher. The majority considered that in the case at hand, the stabiliser was found embedded in the
ground with its top at a depth of around nine centimetres from the surface. In the final analysis,
they concluded that the shell was fired on a charge higher than one or two and therefore from SRK
positions.
6093. Without going into the validity or otherwise of their reasoning, my concern is that the
Accused was never given an opportunity to address this question as a discrete issue. It was never
presented to the Accused for him to comment one way or another thereon. As a result the question
was never fully ventilated before the Chamber as a contentious issue. The majority however made
a seminal conclusion based on this question, and this in turn, played a crucial role in their decision
that the shell had been fired by the Bosnian Serb side. This was unfortunate. It must be borne in
mind that we are not within the realm of exact science and it would have been only fair to the
Accused for him to be put on notice so that some input from him could have been forthcoming. A
decision given under these circumstances therefore, would be flawed as offending against a basic
principle of natural justice.
6094. I will add that even if the mortar had been fired on the higher charges, the origin of fire
could only have been determined if the proper angle of descent had been calculated and I
ingeminate the evidence above quoted that all the Investigators who attended the scene were
unanimous that it was not possible to properly calculate the angle of descent once the integrity of
the crater had been disturbed.
6095. The majority noted at paragraph 4249, that while Gauthier suggested that the ABiH could
have used mobile mortars, they were not convinced that it would have been possible for the ABiH
to fire at the market area from a mobile mortar without being seen, given the densely populated
area in the direction of fire and given the proximity of the residential are of Sedrenik to the ABiH
positions in Grdonj. In this particular case, this was flagrant speculation, made in an evidential
void, and could form no proper basis for the rejection of evidence that could have introduced
reasonable doubt in the minds of the majority. The majority also considered that there was an
absence of any evidence as to the sighting of mobile mortars on that date, or shell fire noise coming
from within the city. I do not think that this is the proper case in which the absence of the evidence
can contribute to the presence of proof beyond reasonable doubt.
6081. In this matter the majority was satisfied beyond reasonable doubt that the shell that struck
the Markale market on 5 February 1994 was fired from SRK held territory by SRK soldiers. I
respectfully disagree with this finding.
6082. In his Final brief at paragraph 2056, the Accused submitted that the UN investigators had
stated that in extracting the tail fin assembly from the crater, the FreBat 4 team (unavoidably)
disturbed the integrity of the crater for any purpose which followed. At paragraph 2069, the
Accused stated that the UN Investigative Team collectively and officially concluded that by the
time the team had conducted its analyses, six days had elapsed since the explosion: it was
reasonable to suspect that the crater had been thoroughly excavated by the local authorities during
that period, hence the angles measured on 11 February were not beyond suspicion. They concluded
that the results measured on 11 February were not sufficiently accurate to be used as a basis for a
finding. At paragraph 2073 the Accused stated that the UN Investigative Team concluded that
there was insufficient physical evidence to prove that one party or another had fired the mortar
bomb. And at paragraph 2075, the Accused demonstrated that the findings of the UN Investigative
Team were endorsed by Colonel Gauthier as he testified as a Defence witness in 2012. As far as I
am aware the accuracy of these submissions was never challenged, neither was it made the subject
of negative comment by the Chamber. Indeed, in some instances, the pertinent evidence was
actually received by the Chamber.
6083. As I see it, this is powerful language employed by the UN Investigative Team. They are in
effect saying that there is reasonable doubt that the shell was fired by the Bosnian Serb Forces, and
one must not lose sight of the fact that this is a report of Prosecution witnesses. The Prosecution
witness Zečević however, was of opinion that the shell could only have been fired from the Bosnian
Serb positions.
6084. What I was presented with therefore, was clear and indisputable conflict in the evidence of
the Prosecution witnesses. And this conflict went to the root of the Prosecution case.
6085. In this situation I am of the view that the majority should have been driven to resolve this
conflict in favour of the Accused.
6086. At paragraph 4247, the majority stated that while the Chamber heard evidence to the effect
that measurements and estimates of the angle of descent were unreliable in this incident due to the
crater having been disturbed, it was also struck by the fact that all but one of the estimated angle
ranges were relatively close to each other and in fact overlapped.
6087. Defence witnesses apart, it is the witnesses for the Prosecution whose evidence the majority
considered, and which evidence demonstrated that the measurements and estimates of the angle of
descent were unreliable due to the disturbance of the crater. There is no clear indication from the
majority whether they were accepting the evidence that the measurements and estimates of the
angle of descent were unreliable, or whether they were rejecting the evidence on this question. To
my mind there was consensus among the UN Investigators who attended the scene, that once the
Frebat 4 battalion had removed the tail fin without taking measurements it was not possible to
calculate the angle of descent.
6088. In the face of this evidence – evidence which I might add was pointedly favourable to the
Accused – I am hard pressed to see why the majority should go on to be ‘struck’ by the relative
closeness of the estimated angle ranges, bar one, and by their overlap.
6089. In a criminal matter where the burden is on the Prosecution to prove the guilt of the
Accused beyond the reasonable doubt, this evidence should have been enough to cause reasonable
doubt to intrude on the minds of the majority.
6090. Of some significance is the fact that the majority stated at paragraph 4248, that they could
not be sure that the speed of the shell as determined by Zečević was ‘absolutely accurate’,
particularly in light of Allsop’s evidence. Irrespective of the language used, the majority is
rejecting the evidence of Zečević in this regard, in favour of that of Allsop.
6091. It should be noted that the evidence of Zečević was that any inaccuracy in the measurement
of the depth of the crater would have affected the calculations of the impact velocity of the shell
and that it was more likely that the depth of the crater was not measured properly in this case, given
the disturbance to the crater during the investigations that took place on 5 and 6 February 1994.
6092. I come now to the question of the ‘common feature’ at paragraph 4248. The majority
noticed a ‘common feature’ in the evidence of Zečević, Higgs, Allsop and Subotić, that is to say,
that a mortar bomb fired at one of the higher charges would typically result in the stabiliser
penetrating the ground and embedding therein. The majority noted that Higgs referred to ‘two
highest charges in this respect’, Zečević to charges four, five and six, and Subotić to charge three or
higher. The majority considered that in the case at hand, the stabiliser was found embedded in the
ground with its top at a depth of around nine centimetres from the surface. In the final analysis,
they concluded that the shell was fired on a charge higher than one or two and therefore from SRK
positions.
6093. Without going into the validity or otherwise of their reasoning, my concern is that the
Accused was never given an opportunity to address this question as a discrete issue. It was never
presented to the Accused for him to comment one way or another thereon. As a result the question
was never fully ventilated before the Chamber as a contentious issue. The majority however made
a seminal conclusion based on this question, and this in turn, played a crucial role in their decision
that the shell had been fired by the Bosnian Serb side. This was unfortunate. It must be borne in
mind that we are not within the realm of exact science and it would have been only fair to the
Accused for him to be put on notice so that some input from him could have been forthcoming. A
decision given under these circumstances therefore, would be flawed as offending against a basic
principle of natural justice.
6094. I will add that even if the mortar had been fired on the higher charges, the origin of fire
could only have been determined if the proper angle of descent had been calculated and I
ingeminate the evidence above quoted that all the Investigators who attended the scene were
unanimous that it was not possible to properly calculate the angle of descent once the integrity of
the crater had been disturbed.
6095. The majority noted at paragraph 4249, that while Gauthier suggested that the ABiH could
have used mobile mortars, they were not convinced that it would have been possible for the ABiH
to fire at the market area from a mobile mortar without being seen, given the densely populated
area in the direction of fire and given the proximity of the residential are of Sedrenik to the ABiH
positions in Grdonj. In this particular case, this was flagrant speculation, made in an evidential
void, and could form no proper basis for the rejection of evidence that could have introduced
reasonable doubt in the minds of the majority. The majority also considered that there was an
absence of any evidence as to the sighting of mobile mortars on that date, or shell fire noise coming
from within the city. I do not think that this is the proper case in which the absence of the evidence
can contribute to the presence of proof beyond reasonable doubt.
