a. Evidence regarding the angle of descent
i. UN Report
76. Six days after the explosion in the market, seven military officers specially appointed by the
UN due to their expertise in artillery investigated the incident, publishing their official conclusions
in a report dated 15 February 1994 (the “UN Report”).261 This special UN team of experts
interviewed a member of the UN’s “Frebat 4 team,” which had arrived at the market approximately
one hour after the explosion.262 The Frebat 4 team had observed upon its arrival that there was a
crater in the market which seemed intact and it had proceeded to extract the tail-fin of a mortar shell
which was embedded inside by “chip₣pingğ away at the asphalt lip around the mouth of the crater,
and enlarg₣ingğ the actual hole formed by the penetration of the ₣device.ğ”263 The Frebat 4 team
though had not attempted to measure the angle of descent of the shell for reasons which are not
reported.264 The special UN team then interviewed another UN representative, Captain Verdy, who
had conducted an analysis of the crater in the market approximately one hour after Frebat 4 team’s
own investigation.265 Captain Verdy also had not attempted to measure the angle of descent of the
mortar shell “since the crater ₣in the marketğ had been disturbed by the previous ₣Frebat 4ğ team.”266
Instead, he had determined the direction of fire and had estimated the minimum angle of descent of
the mortar shell from the angle formed between the crater in the market and the top of a nearby
building along this direction of fire.267 The special UN team dismissed Captain Verdy’s estimated
minimum angle of descent though due to a mathematical error in his determination of the direction
of fire.268 Finally, the team interviewed another UN representative, Major Russell, who had
conducted a third crater analysis on the day of the incident. Approximately one hour after Captain
Verdy’s investigation, Major Russell arrived at the market and observed that “a chisel and a red
pipe wrench ₣wereğ within one metre of the crater.”269 He had proceeded to the crater and had
measured the angle of descent of the mortar shell to be between 67 to 73 degrees,270 using a method
of measurement which was not disclosed to the special UN team.271
261 Hamill, T. 6077; Rose, T. 10196; Ex. P2261 (UN Report) at p. 2 and 6.
262 Ex. P2261 (UN Report) at p. 9 and 30 – 31.
263 Ex. P2261 (UN Report) at p. 30 - 31. The tail-fin was then turned over to local authorities. Bešić, T. 4917 and
Sabljica, T. 5338.
264 Ex. P2261 (UN Report) at p. 8 - 9.
265 Ex. P2261 (UN Report) at p. 8 and 10.
266 Ex. P2261 (UN Report) at p. 9.
267 Ex. P2261 (UN Report) at p. 9.
268 Ex. P2261 (UN Report) at p. 9.
269 Ex. P2261 (UN Report) at p. 31.
270 Ex. P2261 (UN Report) at p. 8 and 10.
271 Hamill, T. 6096.
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77. On 11 February 1994, or six days after the explosion, three experts of the special UN team,
Captain José Grande, Commandant John Hamill and Major Sahaisar Khan, each conducted an
analysis of the crater in the market.272 Captain Grande did not attempt to measure the angle of
descent because “₣wğhen he arrived ₣at the marketğ (6 days after the incident) the crater had been
excavated and slightly enlarged as ₣he and his colleaguesğ were informed by the previous analyst
teams.”273 He concluded that “therefore ₣heğ consider₣edğ ₣himğself unable to give an estimation
₣sicğ of the angle of descent ₣of the shell that exploded in the market.ğ”274 His colleagues Major
Khan and Commandant Hamill attempted to measure this angle of descent.275 Commandant Hamill
placed a stick inside the part of the crater where the tail-fin had been embedded and, using a
protractor and a plumb line, measured the angle formed with respect to the ground to be between 53
and 62 degrees.276 Major Khan determined the angle to be approximately between 56 to 62 degrees,
but, unlike Commandant Hamill, did not report the method he had used to arrive at this result.277
Major Khan also cautioned that “the angle of descent ₣which he had determinedğ should only be
taken as a guide line ₣sicğ”278 because the “crater formed by the bomb had been tempered ₣sicğ time
and again by various personnel.”279
78. On 12 February 1994, the same three UN experts each conducted one additional crater
analysis at the market.280 This time, none of them attempted to measure the angle of descent of the
projectile.281 On 13 February 1994 another expert, Chief-Sergeant Dubant,282 performed a last crater
analysis; he did not measure the angle at which the projectile had landed on the market because
“this action became impossible since the ₣craterğ had been changed and, more particularly, redug
₣on the day of the incidentğ in order to extract the ₣tail-finğ.”283
79. Based on the results of the ten crater analyses which they reviewed, the special UN team
concluded in the UN Report that the angle of descent of the shell which exploded in Markale
272 Ex. P2261 (UN Report) at p. 8.
273 Ex. P2261 (UN Report) at p. 20.
274 Ex. P2261 (UN Report) at p. 20.
275 Ex. P2261 (UN Report) at p. 10.
276 Hamill, T. 6087 – 6088; Ex. P2261 (UN Report) at p. 18.
277 Ex. P2261 (UN Report) at p. 16 – 17.
278 Ex. P2261 (UN Report) at p. 16.
279 Ex. P2261 (UN Report) at p. 16.
280 Ex. P2261 (UN Report) at p. 10.
281 Ex. P2261 (UN Report) at p. 9. Commandant Hamill reported, without elaborating, that “the crater was disturbed
between ₣hisğ first and second analyses, making the measurement ₣of the angle of descentğ impossible on the second
occasion.” Ex. P2261 (UN Report) at p. 18.
282 Both Chief-Sergeant Dubant and Commandant Hamill are referred to in the UN Report as technical advisors to the
special UN team. Ex. P2261 (UN Report) at p. 6.
283 Ex. P2261.2 (Translation of Sergeant Dubant’s analysis of the crater in Markale market).
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Case No.: IT-98-29-T 5 December 2003
market on 5 February 1994 could not be determined “with any acceptable degree of accuracy.”284
They explained that
₣bğy the time ₣the special UNğ team conducted its analyses, six days had elapsed
since the explosion. It is ₣thereforeğ reasonable to suspect that the crater was
thoroughly excavated by the local authorities during that period. Hence the angles
measured on 11 Feb ₣1994 by Commandant Hamill and Major Khanğ are not beyond
suspicion. To assure accuracy, the angle must be measured when the tail fin and fuse
₣of a mortar shellğ are in the ground, and this was not done on 5 Feb ₣1994ğ.
Accordingly it is assessed that the results measured on 11 Feb ₣1994ğ are not
sufficiently accurate to be used as a basis for a finding.285
ii. Zečević Ballistic Report
80. The day after the incident, a commission of three local explosive experts headed by Dr.
Zečević (the “Zečević Ballistic Experts”) volunteered to investigate the explosion.286 Unlike the
special UN team, the Zečević Ballistic Experts believed that the angle of descent of the shell which
exploded in the market could be determined reliably, which they measured to be between 55 and 65
degrees.287 They explained in their report dated 7 February 1994 (the “Zečević Ballistic Report”)
that they did so by using a method of measurement analogous to Commandant Hamill’s; they
reinserted the recovered tail-fin in its original position in the crater in the market and measured the
angle formed.288 They believed that this manual reinsertion of the tail-fin would not skew the
measurement of the angle of descent because the tail-fin had left a well-defined imprint in the
asphalt ground.289 They verified their result by looking at video footage and photographs of the
market taken by local authorities after the explosion,290 by examining the manner in which shell
fragments had dispersed after the explosion291 and by confirming that this measured angle was
sufficiently high to allow the mortar shell to land on the ground without colliding in flight with
nearby obstacles, such as buildings or kiosks.292
iii. Defence