On June 12, 2007, the International Criminal Tribunal for the Former Yugoslavia Convicted

The Judgment in Prosecutor v. Martić: The Implications of a War Crimes Conviction for Cluster Munitions Use

June 19, 2007

Virgil Wiebe[1]

On June 12, 2007, a trial chamber of the International Criminal Tribunal for the Former Yugoslavia convicted Milan Martić, the former president of the now defunct SerbianRepublic of Krajina, of war crimes and crimes against humanity. Among the acts for which he was held responsible were cluster bomb rocket attacks on Zagreb on May 2 and 3, 1995.

The Martić verdict lends support for calls to ban cluster munitions or restrict their use because it ruled on several of the issues at the heart of the ongoing debate. The following is a brief summary of the facts of the case, the findings and holdings of the court, and the limitations of the case.

I. The 1995 Cluster Munition Attack on Zagreb

Milan Martić was the President of the self-proclaimed Republic of Serbian Krajina (RSK), an area in what is now Croatia. On May 1, 1995, the Croatian army launched an offensive to capture territory held by the RSK. In retaliation for the attacks, Martić ordered rocket attacks on Zagreb on May 2 and then again on May 3. The munition used was the Orkan rocket system armed with cluster bomblet warheads. Seven people were killed in the attacks (including a police officer deemed to be a noncombatant who died while trying to disarm a bomblet) and 214 were injured (including seven non-civilians).[2]

On July 25, 1995, the ICTY prosecutor issued an indictment for the attacks, and the ICTY issued an arrest warrant for Martić on March 8, 1996. The indictment was later amended to add other allegations of war crimes and crimes against humanity resulting from other acts committed by RSK forces. Martić surrendered to the ICTY in May 2002. His trial commenced in late 2005 and the trial was concluded and all briefs submitted by May 2007. The ICTY took evidence from nearly one hundred witnesses, considered over a thousand exhibits, and even conducted a site visit to Zagreb in September of 2006.[3]

With respect to the attack on Zagreb, Martić was convicted of murder, inhumane acts, and cruel treatment (crimes against humanity), as well as for attacks on civilians (a war crime).[4]

II. The Findings and Holdings of the Court

The following points provide a brief overview of the findings and holdings of the court.

- The trial chamber engaged in detailed factfinding about the nature of the cluster rocket system used. The Trial Chamber exhibited a good deal of technical acuity, accurately summarizing key facts about the Orkan rocket and the bomblets it contains:

The M-87 Orkan is a non-guided projectile, the primary military use of which is to target soldiers and armoured vehicles.Each rocket may contain either a cluster warhead with 288 socalled bomblets or 24 anti-tank shells.The evidence shows that rockets with cluster warheads containing bomblets were launched in the attacks on Zagreb on 2 and 3 May 1995.Each bomblet contains 420 pellets of 3mm in diameter.The bomblets are ejected from the rocket at a height of 800-1,000m above the targeted area and explode upon impact, releasing the pellets.The maximum firing range of the M-87 Orkan is 50 kilometres.The dispersion error of the rocket at 800-1,000m in the air increases with the firing range. Fired from the maximum range, this error is about 1,000m in any direction.The area of dispersion of the bomblets on the ground is about two hectares.Each pellet has a lethal range of ten metres.[5]

- The presence of military targets in urban areas does not necessarily justify the use of cluster bombs.

[T]he presence or otherwise of military targets in Zagreb is irrelevant in light of the nature of the M-87 Orkan.[6]

- Multiple launch rockets fired from their maximum distance are incapable of hitting targets accurately.

The evidence shows that the M-87 Orkan was fired on 2 and 3 May 1995 from the Vojnić area, near Slavsko Polje, between 47 and 51 kilometres from Zagreb. However, the Trial Chamber notes in this respect that the weapon was fired from the extreme of its range. Moreover, the Trial Chamber notes the characteristics of the weapon, it being a non-guided high dispersion weapon. The Trial Chamber therefore concludes that the M-87 Orkan, by virtue of its characteristics and the firing range in this specific instance, was incapable of hitting specific targets.[7]

- Cluster Munitions with wide dispersal patterns are indiscriminate weapons when used in urban areas.

[T]he Trial Chamber also finds that the M-87 Orkan is an indiscriminate weapon, the use of which in densely populated civilian areas, such as Zagreb, will result in the infliction of severe casualties.[8]

- Prior knowledge of a weapon’s characteristics may lead to criminal liability.

By 2 May 1995, the effects of firing the M-87 Orkan on Zagreb were known to those involved. Furthermore, before the decision was made to once again use this weapon on Zagreb on 3 May 1995, the full impact of using such an indiscriminate weapon was known beyond doubt as a result of the extensive media coverage on 2 May 1995 of the effects of the attack on Zagreb.[9]

- Deaths caused by unexploded submunitions may result in criminal liability. The ICTY convicted Martić for murder for the death of Ivan Markulin, a Croatian police officer who died while “in the process of deactivating a bomb.”[10]

- The ICTY Trial Chamber, sub silentio, rejectedthe argument that restricting the use of cluster munitions use in populated areas would force belligerents to use more destructive unitary warheads in such areas. A recurring argument in favor of retaining cluster bombs in a military’s arsenal has been that if cluster bombs are not allowed to be used, then militaries will be forced to fire many more unitary munitions with larger warheads to neutralize military targets in urban areas.

The defense strenuously argued that in attacking Zagreb, Martić and his staff made the right choice in selecting the Orkan, because the only other weapon at their disposal was the more powerful Luna rocket system. The weapon chosen, they argued, was the “one where the possibility of incidental damage is of a lesser degree.”[11]The Luna rocket was described as having a very large warhead (more than 400 kilograms), poor targeting, and “being completely inappropriate for shelling targets situated in towns like Zagreb.”[12] Because of the uncertainty of being able to hit its target, many rockets “would have to be launched” to hit intended targets, resulting in much greater incidental damage.[13]

The ICTY Trial Chamber implicitly rejected this argument without comment. As mentioned above, it held that the Orkan rocket system was an indiscriminate weapon when used in densely populated areas.

- The use of multiple cluster munition warheads in populated areas may be considered a “widespread attack” against civilian populations.

The attacks on May 2 and 3, 1995 consisted of total of twelve Orkan rockets, each with 288 dual purpose submunitions.[14] The Trial Chamber held that “in particular due to the characteristics of the M-87 Orkan and due to the large-scale nature of the attack, the Trial Chamber finds that the shelling constituted a widespread attack directed against the civilian population of Zagreb.”[15]

- The attack on Zagreb was not a legal reprisal. The ICTY Trial Chamber also rejected the argument that the attack on Zagreb was a lawful reprisal, finding that well established conditions for use of reprisals (such a being a measure of last resort) had not been met.[16]

III. Limitations of the Case

While the Martić judgment has significant implications for the wider debate on cluster munitions, there are limitations to the case. Defenders of cluster munitions will argue that the case may be distinguished from other uses of cluster bombs because the ICTY Trial Chamber found that Martić intentionally targeted civilians, as opposed to the weapon itself being indiscriminate. Intentionally murdering or harming civilians, whether it is done with a cluster bomb or a machete, violates the laws of armed conflict. While this is true, the judgment does note that regardless of the presence of military targets, the Orkan weapon used in densely populated areas is indiscriminate.

Another recognized limitation of the decision is that the Orkan rocket in this case was fired from its maximum range, thus limiting the ability of the user to accurately target the munition. One might be able to argue that more accurately targeted cluster munitions, properly used, might be a legal weapon.

It may be remembered that in June 2000, the ICTY Prosecutor declined to prosecute NATO for its use of cluster munitions in the 1999 Kosovo conflict based on an investigation carried out by her staff. In the final report to the prosecutor, an earlier 1996 decision relating to the original indictment in the Martić case was referenced. The report to the Prosecutor noted that the Martić Trial Chamber “regarded the use of the Orkan rocket with a cluster bomb warhead in that particular case as evidence of the intent of the accused to deliberately attack the civilian population because the rocket was inaccurate, it landed in an area with no military objectives nearby, it was used as an antipersonnel weapon launched against the city of Zagreb and the accused indicated he intended to attack the city as such.” The report to Prosecutor concluded that there was ”no indication cluster bombs were used in such a fashion by NATO.”[17]

It should be noted that since the 1996 indictment hearing, considerably more evidence surfaced in the Martić trial. During the trial, the defense presented evidence that RSK military indeed had targeted military objectives in Zagreb (however poorly they achieved that objective).[18] The Trial Chamber in the final judgment acknowledged this evidence, but emphasized that the rockets largely missed their targets and that “the presence or otherwise of military targets in Zagreb is irrelevant in light of the nature of the M-87 Orkan.”[19]

The 2000 final report to the prosecutor also downplayed the dangers of unexploded ordnance of cluster munitions by stating that there was no international consensus that unexploded submunitions were landmines.[20]

During both the 1996 Martić indictment hearing and as well as the trial in 2006, evidence was taken about the high numbers of unexploded submunitions found in Zagreb as a result of the attack.[21] In the final judgment, Martić was found guilty of the murder of Ivan Markulin, the police officer who died while trying to disarm an unexploded bomblet.[22]

IV. Conclusions

The Martić judgment addresses issues at the core of the debate over cluster munition regulation. It found that the use of one type of cluster munition rocket in an urban environment was indiscriminate due to its poor targeting and wide area effect, regardless of the presence of military targets. It held Martić liable for the death of a clearance technician killed by an unexploded bomblet. It also held Martić liable for the use of Orkans based on foreknowledge of the actual effects of a weapon. The Trial Chamber also implicitly rejected the argument in this case that prohibiting the use of cluster munitions against military targets in an urban environment would force the belligerent to use more powerful unitary warheads instead.

While the verdict ultimately held Martić criminally liable for ordering the attacks on Zagreb, the verdict does have limitations. That the attack was found to be in retaliation and largely directed at civilians may limit its use. This rationale, however, cannot diminish findings about the nature of the weapon itself when used in populated areas. The firing of the rockets from the outside limit of its range also suggests that better targeting could diminish the chances of criminal liability. That said, the well documented targeting problems with many rocket based systems (as well as many air and artillery delivered cluster munition systems) should make every military or civilian commander contemplating their use to give serious pause before firing these weapons anywhere near densely populated areas. That only a limited number of rockets (six a day) was held to constitute a widespread attack on civilians should also give pause.

Finally, while the case resulted in a conviction and may serve a deterrent effect, it also came at great expense. The attack and original indictment occurred in 1995. Martić was not taken into custody until 2002. The trial did not start until over ten years after the attack in question and lasted over a year, with nearly a hundred witnesses, nearly a thousand exhibits, and quite literally thousands of pages of testimony. Granted, much of the evidence related to the other crimes for which Martić was convicted. To their credit, the members of the prosecution team over more than a decade presented detailed evidence about the nature of the weapon (the dud rate, the targeting problems, the wide area nature, the anti-personnel effects, etc.). Effective prosecution requires such attention to detail, but a more effective check on the indiscriminate effects of cluster munitions might come through more a systematic regulation or ban of them.

Virgil Wiebe, The Judgment in Prosecutor v. Martić: The Implications of a War Crimes Conviction for Cluster Munitions Use - 1 -

[1] Associate Professor of Law, University of St. Thomas School of Law, Minneapolis, Minnesota, USA, .© 2007.

[2] Prosecutorv. Martić, No. IT-95-11-T, Judgement (Int'l Crim. Trib. Former Yugosl., June 12, 2007), ¶¶ 456-473 (hereinafter “Martić Judgment”), available at

[3] For a complete summary of the procedural history, see Martić Judgment, ¶¶ 521-536.

[4] Martić Judgment, ¶¶ 471, 472, 518. Martić was convicted on other counts as well. Id., ¶ 518.

[5] Martić Judgment, ¶ 462.

[6] Martić Judgment, ¶ 461.

[7] Martić Judgment, ¶ 463.

[8] Martić Judgment, ¶ 463.

[9] Martić Judgment, ¶ 463.

[10] Martić Judgment, ¶ 470. See also Prosecutor v. Martić, No. IT-95-11-R61, Transcript of the Trial Chamber, Rule 61 Proceedings (Int'l Crim. Trib. Former Yugosl., Feb. 25-27, 1996), at 77, available at (hereinafter Trial Chamber Transcript).

[11] Prosecutor v. Martić, No. IT-95-11-T, Public Redacted Final Trial Brief of Milan Martić, (Int'l Crim. Trib. Former Yugosl., Jan. 16, 2007), ¶ 151 (hereinafter “Defense Brief”) (on file with author).

[12] Defense Brief, ¶¶ 158-160.

[13] Defense Brief, ¶¶ 162-163.

[14]Prosecuter v. Martic, No. IT-95-11-R61, Initial Indictment (Int'l Crim. Trib. Former Yugosl., July 25, 1995)available at icty/indictment/english/25-07-95.htm; Trial Chamber Transcript, at 26-27.

[15] Martić Judgment, ¶ 469.

[16] For a more detailed discussion of the issue of reprisals, see Martić Judgment, ¶¶ 464-468.

[17]Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, June 13, 2000, ¶ 27, available at (hereinafter “Final Report to Prosecutor”).

[18]The defense claimed that the Orkan rockets were aimed at legitimate military targets in Zagreb, namely the Ministries of Defense and Interior, the MilitaryAirport, and the Presidential Palace. Defense Brief, ¶ 147. As evidence that civilians were not the intended target, the defense cited to a confidential document on May 2, 1995, from the Security Department to the Main Staff of the SVK Army, which stated as follows:

Today at 1030 hrs, the Artillery units of the Serbian Army of Krajina fired eight rockets from and [sic] Orkan multiple rocket launcher on the Banski Dvori/Presidential Palace/ [sic], the Ministry of Defence and Pleso airport. Defense Brief, ¶ 167, citing to Exh. 95, p. 3.

[19] Martić Judgment, ¶ 461. “The Trial Chamber notes the report of2 May 1995 from the SVK Main Staff to the VJ [Serbian Army] General Staff, which provides that the followingtargets in Zagreb were fired at by Orkan rockets on that day: the Ministry of Defence, thePresidential Palace and Zagreb/Plešo airport.” Id.

[20] Final Report to Prosecutor, ¶ 27.

[21] See, e.g., Trial Chamber Transcript, Feb. 25-27, 1996, at 23-24, 37 (testimony of Prosecution expert Ted Itani, noting that between 1220 and 1600 unexploded bomblets were cleared after the attack and that in addition to the death of Markulin, another pyrotechnician lost his arm within days of the attack in an attempt to clear a bomblet); Trial Chamber Transcript, June 6, 2006, at 5073, available at (testimony of Prosecution expert Josef Poje); Trial Chamber Transcript, June 14, 2006, at 5598, available at (testimony of Zagreb civilian Ivan Mikulcic). It is not clear from the Martić Judgment if the injured pyrotechnician was included in the 214 injured persons for whom Martić was held liable for harming.

[22] Martić Judgment, ¶ 470.