Prosecvstrugar Trialjudgmnt

UNITED NATIONS
International Tribunal for the Prosecution of Persons Responsible for Serious

Violations of International Humanitarian Law Committed in the Territory of
Former Yugoslavia since 1991
Case No.
Date:
IT-01-42-T
31 January 2005
Original: English
Before:
Registrar: Judgement of:
The Office of the Prosecutor:
Ms. Susan Somers Mr. Philip Weiner
Counsel for the Accused:
Mr. Goran Rodi} Mr. Vladimir Petrovi}
IN TRIAL CHAMBER II
Judge Kevin Parker, Presiding Judge Krister Thelin Judge Christine Van Den
Wyngaert
Mr. Hans Holthuis 31 January 2005
PROSECUTOR v. PAVLE STRUGAR
JUDGEMENT
CONTENTS
I.
INTRODUCTION......................................................................................................
....................1
II. CONSIDERATIONS REGARDING THE EVALUATION OF
EVIDENCE........................3
III. THE CONTEXT IN WHICH THE ATTACK OF 6 DECEMBER 1991 TOOK
PLACE...6
A. GENERAL BACKGROUND
..............................................................................................................6 B.
DUBROVNIK BEFORE OCTOBER 1991
...........................................................................................8 1. The broader
Dubrovnik, the city of Dubrovnik and the Old Town ......................................... 8 2.
Croatian forces in
Dubrovnik...................................................................................................9 3. JNA
forces around
Dubrovnik.................................................................................................9 C.
COMBAT OPERATIONS AROUND DUBROVNIK BEFORE OCTOBER
1991........................................10 1. JNA blockade by Croatian forces
.......................................................................................... 10 2. Mobilisation of
Croatian and JNA forces..............................................................................11 3.
JNA directive to blockade Dubrovnik
................................................................................... 11 D. COMBAT OPERATIONS
AROUND DUBROVNIK IN OCTOBER 1991 ................................................13 E. SHELLING
OF DUBROVNIK IN OCTOBER 1991.............................................................................15
F. OCTOBER NEGOTIATIONS AND CEASEFIRE
..................................................................................16 G. COMBAT OPERATIONS
AROUND DUBROVNIK IN EARLY NOVEMBER 1991..................................18 H. THE
SHELLING OF THE OLD TOWN IN NOVEMBER 1991
............................................................. 20 I. NOVEMBER NEGOTIATIONS AND
CEASEFIRE ................................................................................25
IV. THE ATTACK ON 6 DECEMBER 1991
...............................................................................27
A. THE PLANNING OF THE ATTACK – EVENTS BEFORE 6 DECEMBER 1991
...................................... 27 B. THE ATTACK ON THE OLD TOWN ON 6 DECEMBER 1991 –
THE EXPERIENCE OF THE RESIDENTS 37 C. THE ATTACK ON THE OLD TOWN OF DUBROVNIK
ON 6 DECEMBER 1991 - THE ATTACKERS......44 D. THE EVENTS OF 6 DECEMBER
1991............................................................................................46 E. THE ROLE OF
THE ACCUSED - INTERRELATIONSHIP OF THE ACCUSED, ADMIRAL JOKI} AND
GENERAL
KADIJEVI}................................................................................................................6
1 F. HOW DID THE OLD TOWN COME TO BE
SHELLED?.......................................................................77 1. Extent of damage
...................................................................................................................77 2.
Was damage deliberately inflicted by Croatian forces or
interests?......................................78 3. Did JNA forces fire only at Croatian
military positions? ...................................................... 79
V. JURISDICTION UNDER ARTICLE 3 OF THE STATUTE
................................................99
A. EXISTENCE OF AN ARMED CONFLICT AND NEXUS BETWEEN THE ACTS OF THE ACCUSED
AND THE ARMED CONFLICT
..............................................................................................................99 B. THE
FOUR TADI} CONDITIONS
................................................................................................... 100 1. Murder and
cruel treatment..................................................................................................100
2. Attacks on civilians and civilian
objects..............................................................................101 (a) Attacks on
civilians .............................................................................................................. 101
(b) Attacks on civilian objects
................................................................................................... 102 3. Destruction
and devastation of property, including cultural property.................................104
VI. THE
CHARGES...............................................................................................................
.......108
A. CRIMES AGAINST PERSONS (COUNT 1 AND
2)...........................................................................108 1. Murder (Count
1).................................................................................................................108 (a)
Law................................................................................................................................
....... 108 (b)
Findings.........................................................................................................................
....... 110 (i) Tonči Skočko
.................................................................................................................... 110 (ii)
Pavo Urban
...................................................................................................................... 113 2.
Cruel treatment (Count
2)....................................................................................................115
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(a)
Law................................................................................................................................
....... 115 (b)
Findings.........................................................................................................................
....... 116 (i) Ivo Vla{ica
........................................................................................................................ 116 (ii)
Mato Valjalo
.................................................................................................................... 118 B.
ATTACKS ON CIVILIANS AND CIVILIAN OBJECTS (COUNTS 3 AND
5).........................................121 1. Law
.................................................................................................................................
.....121 2. Findings
...............................................................................................................................1
25 C. CRIMES AGAINST PROPERTY, INCLUDING CULTURAL PROPERTY (COUNTS 4 AND
6).................129 1. Law on devastation not justified by military necessity (Count
4) ....................................... 129 2. Law on destruction or wilful damage of cultural
property (Count 6)..................................131 3. Findings on Counts 4 and 6
.................................................................................................135
VII. INDIVIDUAL CRIMINAL RESPONSIBILITY OF THE ACCUSED
...........................141
A.
ORDERING..................................................................................................................
..............141 1. Law
.................................................................................................................................
...............................................................................................................................1
42 3. Conclusion
...........................................................................................................................147
B. AIDING AND
ABETTING.............................................................................................................147
1. Law
.................................................................................................................................
...............................................................................................................................1
48 3. Conclusion
...........................................................................................................................149
C. COMMAND RESPONSIBILITY
.....................................................................................................150 1. Law
.................................................................................................................................
.....150 (a) Superior-subordinate relationship
........................................................................................ 150 (b) Mental element: the
superior knew or had reason to know ................................................. 153 (c)
Necessary and reasonable
measures..................................................................................... 154 2. Findings
...............................................................................................................................1
57 (a) Superior-subordinate relationship
........................................................................................ 157 (i) Command
structure........................................................................................................... 157 (ii)
Effective control
.............................................................................................................. 160
a. Did the Accused have the material ability to prevent the attack on the Old Town of
6 December 1991?......................................................................................................
161 b. Did the Accused have the material ability to punish the perpetrators?
......................... 164 (iii) Conclusion
...................................................................................................................... 167
(b) Mental element: did the Accused know or have reason to know that his
subordinates were about to or had committed
crimes?..................................................................................... 168 (c) Measures to
prevent and to punish ....................................................................................... 171 (i)
Measures to prevent
.......................................................................................................... 171 (ii) Measures
to punish .......................................................................................................... 180 3.
Conclusion ..............................................................................................................
.............186
VIII. CUMULATIVE
CONVICTIONS.......................................................................................187 A.
SHOULD THERE BE CUMULATIVE
CONVICTIONS?......................................................................187
B. CONCURRENT RESPONSIBILITY UNDER ARTICLES 7(1) AND 7(3) OF THE STATUTE
..................189
IX.
SENTENCING..........................................................................................................
...............190
A. THE GRAVITY OF THE OFFENCE
................................................................................................190 B. AGGRAVATING
AND MITIGATING CIRCUMSTANCES ..................................................................192 C.
THE GENERAL PRACTICE IN THE COURTS OF THE FORMER YUGOSLAVIA
..................................195 D. CREDIT FOR TIME SERVED IN CUSTODY
....................................................................................197
X. DISPOSITION
..........................................................................................................................198
ANNEX I: DESTROYED OR DAMAGED BUILDINGS OR STRUCTURES
...................... 200
ANNEX II: GLOSSARY OF TERMS
......................................................................................... 207
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ANNEX III: MAPS &
PHOTOGRAPHS....................................................................................213
ANNEX IV: PROCEDURAL
HISTORY....................................................................................220
A. PRE-TRIAL PROCEEDINGS
.........................................................................................................220 1.
Indictment and initial appearance
........................................................................................ 220 2. History of
indictments .........................................................................................................22
0 3. Severance of proceedings and guilty pleas
.......................................................................... 221 4. Order for provisional
release ...............................................................................................222 5.
Commencement of trial and vacation of the Accused’s order for provisional
release ........ 222 6. Trial Chamber composition
.................................................................................................223
B. TRIAL
PROCEEDINGS.............................................................................................................
....223 1.
Overview..................................................................................................................
............223 2. Matters relating to
witnesses................................................................................................223 3.
Evidentiary issues
................................................................................................................224 4.
Access to
documents............................................................................................................2
25 5. Health of the
Accused..........................................................................................................226
6. Rule 98bis
Decision.............................................................................................................226
7. Site visit
...............................................................................................................................2
27
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1
2
The Third Amended Indictment alleges that three people were seriously injured. In its Rule 98bis
Decision, the Trial Chamber found that there was not enough evidence capable of sustaining a
conviction in respect of Nikola Jovi} on Count 2, cruel treatment. Indictment, paras 3 and 12.
Case No IT-01-42-T
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I. INTRODUCTION
1. The Accused, Pavle Strugar, a retired Lieutenant-General of the then
Yugoslav Peoples’ Army (JNA), is charged in the Indictment with crimes allegedly
committed from 6 to 31 December 1991, in the course of a military campaign of
the JNA in and around Dubrovnik in Croatia in October, November and
December of 1991.
2. The Indictment, as ultimately amended, alleges that in the course of an
unlawful attack by the JNA on the Old Town of Dubrovnik on 6 December 1991,
two people were killed, two1 were seriously wounded and many buildings of
historic and cultural significance in the Old Town, including institutions dedicated
to, inter alia, religion, and the arts and sciences, were damaged. These
allegations support six counts of violations of the laws or customs of war under
Article 3 of the Statute of the Tribunal, namely murder, cruel treatment, attacks
on civilians, devastation not justified by military necessity, attacks on civilian
objects and destruction of institutions dedicated to, inter alia, religion, and the
arts and sciences. The Accused is charged with individual criminal liability under
Article 7(1) of the Statute for allegedly ordering, and aiding and abetting, the
aforementioned crimes, as well as with superior responsibility pursuant to Article
7(3) of the Statute for the crimes of his subordinates. The Accused’s liability is
alleged to arise out of the position he then held as commander of the Second
Operational Group (2 OG). It is alleged that it was, inter alia, forces of the 3 rd
Battalion of the 472nd Motorised Brigade (3/472 mtbr) under the command of
Captain Vladimir Kovačevi}, which unlawfully shelled the Old Town on 6
December 1991. The battalion commanded by Captain Kovačevi} was at the time
directly subordinated to the Ninth Military Naval Sector (9 VPS), commanded by
Admiral Miodrag Joki}, and the 9 VPS, in turn, was a component of the 2 OG,
commanded by the Accused.2
3. While the Indictment is confined to the attack on the medieval Old Town,
the evidence indicates that the JNA shelling that day was not confined to the Old
Town and that there were also human casualties and property damage to the
extended and more modern parts of the city of Dubrovnik which adjoin the Old
Town but which are outside the historic walls.
4. The Chamber observes that Admiral Joki} has pleaded guilty to six counts,
alleging violations of the laws or customs of war punishable pursuant to Articles
3, 7(1) and 7(3) of the Statute, relating to the attack on Dubrovnik on 6 December
1991. He was subsequently sentenced
by this Tribunal to seven years imprisonment. 3 The case against Captain
Kovačevi}, also indicted for the attack, is still pending.
3
Joki} Sentencing Judgement. The Judgement is presently pending appeal. Admiral Joki}, Captain
Kovačevi}, the Accused and a fourth named indictee were originally charged together in February
2001 for violations of the laws or customs of war committed by alleged attacks on Dubrovnik
between 1 October and 31 December 1991. The charges against the fourth individual were
withdrawn in July 2001, and the cases against the remaining three were eventually separated.
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45
Rule 87(A) of the Rules provides, in its relevant part: “[...] A finding of guilt may be reached only
when a majority of the Trial Chamber is satisfied that guilt has been proven beyond reasonable
doubt.” êlebi}i Appeals Judgement, para 458.
II. CONSIDERATIONS REGARDING THE EVALUATION OF
EVIDENCE
5. In the present decision, the Chamber is to determine the innocence or the
guilt of the Accused on each of the six counts of the Indictment. Article 21(3) of
the Statute enshrines the presumption of innocence to which each accused is
entitled. This presumption places on the Prosecution the burden of establishing
the guilt of the Accused, and that burden remains on the Prosecution throughout
the entire trial. The standard to be met for a conviction to be entered against an
Accused is that of proof beyond reasonable doubt. 4 Accordingly, the approach
taken by the Chamber has been to determine in respect of each of the six
counts, whether it is satisfied beyond reasonable doubt, on the basis of the whole
of the relevant evidence, that each element of that crime and the forms of liability
charged in the Indictment have been established. As is usual in criminal cases, in
determining whether an element of a count has been established, it has often
been necessary to draw inferences from the facts established by the evidence. In
so doing the Chamber has been careful to consider whether an inference
reasonably open on these facts was inconsistent with the guilt of the Accused. If
there was, the onus and the standard of proof would require an acquittal to be
entered in respect of that count.5
6. The Chamber has been required to weigh and evaluate the evidence
presented by both parties. The nature of the case is such that the Chamber has
been faced with a large amount of evidence, characterised by contradiction and
inconsistency, in order to determine relatively few issues. In respect of some
issues, the task of the Chamber has been made more difficult because witnesses
who played a material role have not been called to give evidence, and because
some relevant records and documents have not been located.
7. In weighing the evidence, the Chamber has kept in mind that the many
years that have passed since these events are likely to have affected the
accuracy and reliability of the memories of witnesses, understandably so.
However, the Chamber is also persuaded that in some cases, the evidence it has
heard was not entirely truthful. For example, some of the JNA witnesses who
came to testify left the Chamber with a clear impression that they were seeking in
their evidence to minimise or misrepresent their involvement in the events of 6
December 1991. In a similar way, some of the Croatian witnesses, albeit at times
possibly unwittingly, appeared to exaggerate the account of the damage
sustained on that particular day or failed to distinguish that damage from that
sustained during previous shellings in October and November 1991, or an earlier
earthquake. Others sought to minimise the extent of the Croatian military
presence in Dubrovnik. Further, even
Case No IT-01-42-T
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more regrettably, the Chamber has also been forced to conclude that some of
the oral and documentary evidence is deliberately contrived and false. These
various factors, in particular, have had the effect in this case that in respect of a
number of witnesses the Chamber’s assessment of the personal credibility of the
witness as the evidence was given has been most material to the Chamber’s
acceptance or rejection of evidence of that witness, whether in whole or in part.
The Chamber has found that the general background circumstances to material
events, and the actual course of material events, at times has offered valuable
assistance in the task of determining where the truth lies in a body of conflicting
and inconsistent oral and documentary evidence about a particular issue.
8. The Chamber also notes that there were times in the course of the trial
where the oral evidence of a witness was not identical to the account given in a
prior statement. While this called for scrutiny of the credibility of the witness, the
Chamber also accepts what has been expressed by other Trial Chambers that “it
lies in the nature of criminal proceedings that a witness may be asked different
questions at trial than he was asked in prior interviews and that he may
remember additional details when specifically asked in court.” 6 A witness may
also forget some matter or become confused. The Chamber has taken these
considerations into account when determining the weight to be given to any such
particular evidence.
9. In some cases only one witness has given evidence on a fact material to
this case. Of course, the testimony of a single witness on a material fact does
not, as a matter of law, require corroboration. 7 The Chamber has, however,
scrutinised the evidence of the single witness in such cases with particular care
before relying upon it.
10. Despite these circumstances, after having carefully reviewed and weighed
all the evidence, the Chamber has been able to make findings on the facts in this
case sufficient for it to be able to determine the innocence or the guilt of the
Accused on each count. However, the Chamber has not been able to resolve all
disputed factual matters. The nature of the case and of the evidence in some
respects rendered this exercise impossible or too complex. As will be seen, the
Chamber has accepted some evidence notwithstanding the presence of
contradicting or inconsistent evidence. At times, the Chamber rejected evidence
despite the presence of other consistent evidence. At times, the Chamber has
been persuaded it should accept only part of the evidence of a witness, while
rejecting other parts. Where this has occurred it has been done in light of the
other evidence on the issue and only after very careful scrutiny indeed of the
witness and the evidence.
67
Naletili} Trial Judgement, para 10; Va{iljevi} Trial Judgement, para 21. Aleksovski Appeals
Judgement, para 62.
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11. Finally, the Chamber recalls Article 21(4)(g) of the Statute which provides
that no accused shall be compelled to testify against him or herself. The Accused
in the present case decided not to testify at trial. The Chamber has not, of
course, attached any probative relevance to his decision.
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III. THE CONTEXT IN WHICH THE ATTACK OF 6 DECEMBER 1991
TOOK PLACE
A. General background
12. The Chamber will now turn to consider the broader context in which the
alleged unlawful attack on the Old Town of Dubrovnik took place.
13. In 1991 the Socialist Federal Republic of Yugoslavia (SFRY) experienced a
series of events which ended in the break-up of the six republic federal state. 8
It involved initially the quest for independence by the Republics of Slovenia
and Croatia.9 The developments in the SFRY eventually involved the
international community, and especially the then European Community (EC) and
the United Nations (UN).10 In the following, some of the more important dates and
actions are described as they emerge from the evidence in the case or are
historical facts of common knowledge. This brief overview serves as an important
background to the case.11
14. In 1991, the federal government formally controlled the armed forces of the
SFRY, the JNA and the Territorial Defence (TO). 12 The JNA and the TO were
under the Supreme Command of the SFRY Presidency. 13 The Federal Secretary
for National Defence14 at the time was General Kadijevi} and his deputy was
Admiral Brovet.15
15. On 25 April 1991, a referendum on the independence of Croatia was held. 16
The result of this referendum was that Croatia would not remain in the
SFRY as a unified state, but that it would become independent, with the
possibility of forming alliances with other republics. 17 On 25 June 1991, the
Croatian Parliament purported to ratify the result by passing a constitutional
decision on
8
9
Exhibit P20, tab 9 (Badinter Commission Opinion No. 1). The SFRY was composed of six
republics: Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Serbia and Slovenia. See
infra, para 15. Republic of Slovenia Assembly Declaration of Independence, 25 June 1991.
10 UNSC Resolution 713 (1991) of 25 September 1991; UNSC Resolution 721 (1991) of 27
November 1991; UNSC Resolution 724 (1991) of 15 December 1991; EC Declaration on the
Situation in Yugoslavia, adopted at the Extraordinary EPC Ministerial Meeting, The Hague, 5 July
1991(EC Press Release p 61/91); Memorandum of Understanding on the Monitor Mission to
Yugoslavia, 13 July 1991 (Review of International Affairs, Vol. XLII (5.X-5. XI 1991), p 21.
11 In this section, the Chamber has taken judicial notice of facts of common knowledge
pursuant to Rule 94 (A) of the Rules, which provides: “A Trial Chamber shall not require proof of
facts of common knowledge but shall take judicial notice thereof”.
12 JNA is the acronym for “Jugoslavenska Narodnra Armija” 13 Exhibit P204 (Expert Report
of Milovan Zorc). Command and control of the armed forces was executed by the
Federal Secretary of National Defence in accordance with the authority invested in him by the
SFRY Presidency. In
the event of the Federal Secretary’s absence, the chief of the General Staff acted as his deputy.
14 Also referred to as the Minister of Defence. 15 Admiral Joki}, T 3869-3870; 4111-4113.
16 Exhibit P20, tabs 2, 3, 4; Ljerka Alajbeg, T 672-674. 17 Ljerka Alajbeg, T 672-674.
Case No IT-01-42-T
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the sovereignty and independence of Croatia. 18 Both the referendum and the
decision on independence were challenged by the Yugoslav federal
government.19 During the summer of 1991 the functioning of the federal
government was adversely affected as a consequence of these developments.
Croatia made a declaration of independence on 8 October 1991. 20
16. In late August 1991, the JNA took control of Kijevo (a Croatian village
surrounded by Serbian held territory) and moved on Vukovar, a Croatian town in
eastern Slavonia, bordering the Republic of Serbia. Croatia then laid siege to
JNA barracks and installations across the Republic.21 The JNA then surrounded
Vukovar and bombarded the town for two months until its fall in November
1991.22 The siege of Vukovar by the JNA came to be seen as a symbol of
Croatia’s struggle for national liberation, winning international attention.
17. In response to the growing tensions in Croatia and the unfolding of a war
also in the Republic of Bosnia and Herzegovina, Lord Carrington, who was
appointed by the President of the EC Council of Foreign Ministers, the Dutch
Foreign Minister Hans van den Broek,23 was asked to broker a comprehensive
peace settlement in Yugoslavia.24 During the Dutch Presidency of the EC, the
European Community Monitoring Mission (ECMM) was introduced into the
region.25 Lord Carrington chaired the first session of a peace conference in The
Hague on 7 September 1991 attended by the Presidents of the six Yugoslav
republics.26 On 8 November 1991, an EC summit in Rome recommended
trade sanctions, including an oil embargo, on Yugoslavia. 27 The international
peace process shifted from the EC to the UN when the UN Secretary General
appointed Cyrus
18 Ljerka Alajbeg, T 672-674; Nikola Samardì}, T 970. 19 Ljerka Alajbeg, T 671; T 2829. On
5 December, 1991 the Croatian Parliament declared that it would no longer
recognize the authorities in Belgrade: “ In accordance with the decision of the Assembly of the
Republic of Croatia of 8 October 1991, by which the legitimacy and legality of all bodies of the
former Socialist Federal Republic of Yugoslavia was revoked, the Assembly of the Republic of
Croatia does not recognise, and rejects all activities by Ante Markovi}, Prime Minister of the
former federal government and Budimir Lon~ar, a minister in that government, that could have
consequences of any kind for the Republic of Croatia”: P20, tab 8, Decision dated 5 December
1991, para 8. See also Ljerka Alajbeg, T 2830-2831.
20 Ljerka Alajbeg, T 2796-2797; Exhibit P20, tab 7. 21 See infra, paras 26 and 27. 22 Minister
Rudolf during his testimony stated that by 28 November 1991 Vukovar had fallen, T 5476-5477.
Paul
Davies testified that there was large scale fighting in Vukovar, T 573. 23 Admiral Joki}, T
4522-4528. 24 Declaration on the Occasion of the Ceremonial Opening of the Conference on
Yugoslavia, Peace Palace, The
Hague, 7 September 1991. 25 Memorandum of Understanding on the Monitor Mission to
Yugoslavia, 13 July 1991(Review of International
Affaris, Vol XLII (5.X-5.XI 1991), p 21. The EC established the European Commission Monitor
Mission (ECMM) in Croatia to broker a ceasefire between the parties with the aim of putting an
end to the siege of the JNA barracks, Per Hvalkov, T 2236.
26 Declaration on the Occasion of the Ceremonial Opening of the Conference on Yugoslavia,
Peace Palace, The Hague, 7 September 1991. Nikola Samardzi} recalls meeting the President of
the Republic of Croatia, Franjo Tudjman and the President of the Republic of Montenegro, Momir
Bulotavic during the conference in The Hague, T 1185-1188.
27 EC Declaration on the Suspension of the Trade and Cooperation Agreement with
Yugoslavia, Rome, 8 November 1991. Previously, on 25 September 1991, the UN had imposed
an arms embargo against all the former Yugoslavia. See, UNSC Resolution 713 (1991) of 25
September 1991.
Case No IT-01-42-T
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Vance, a former US Secretary of State, as the personal envoy of the UN
Secretary General to Yugoslavia. Cyrus Vance’s plan was to deploy a UN peace-
keeping force in Croatia.28
18. The EC invited all Yugoslav republics, which so wished, to apply for
recognition by 24 December 1991. The applications would then be considered by
an Arbitration Commission, the so-called Badinter Commission, which would
verify whether the republics satisfied the conditions for EC recognition by 15
January 1992. Although, the Badinter Commission expressed the opinion that
Croatia did not meet the conditions for recognition, 29 Croatia eventually gained
EC recognition on 15 January 1992.30
B. Dubrovnik before October 1991
1. The broader Dubrovnik, the city of Dubrovnik and the Old Town
19. The broader municipality of Dubrovnik extends for approximately 120 kms
along the coast of southern Dalmatia in present-day Croatia. 31 It borders with
Montenegro to the south and with Bosnia and Herzegovina to the east. 32 The
city or town of Dubrovnik is comprised of the area from Sustjepan to the
northwest to Orsula in the southeast, and includes the island of Lokrum situated
to the southeast of the Old Town.33
20. The part of Dubrovnik known as the Old Town is an area of some 13.38
hectares enclosed by the medieval city walls. The Old Town is situated between
the Adriatic Sea on one side and steep slopes on the other. These slopes ascend
to Mount Sr|, the dominant topographical feature of Dubrovnik, which overlooks
the Old Town.34
21. The Old Town of Dubrovnik is endowed with an exceptional architectural
heritage, including palaces, churches and public buildings. 35 The city first rose
to prominence as a significant trading centre in the 13 th century,36 and the oldest
buildings in the Old Town date from this period. 37 The fortifications of the Old
Town, begun in the 12th century and completed in the
28 The so called Vance Peace Plan on the UN peacekeeping operation in Yugoslavia was
submitted to the UN Security Council as an annex to the Report of the Secretary General Boutros
Boutros Ghali to the UN Security Council (UN Doc S/23280, Annex).
29 Ljerka Alajbeg, T 689-691. See Opinion No 5, Exhibit P20, tab 9. Croatia had not
incorporated into its constitution the adequate protection of national minorities’ rights, Ljerka
Alajbeg, T 690.
30 Ljerka Alajbeg, T 686. A number of states recognized Croatia as an independent state
before EC recognition, among which: the Holy See, Latvia, Estonia and San Marino, Ljerka
Alajbeg, T 685.
31 Exhibit P14 (Expert Report of Dr John Allcock), p 1. 32 John Allcock, T 527-528; see
Annex III.A. 33 The terms “city” or “town” are used interchangeably throughout the judgement.
34 John Allcock, T 467-470; see Annex III.C and III.D. 35 Exhibit P14, p 6. 36 Exhibit
P14, p 2. 37 Exhibit P14, p 3.
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mid 17th century, are widely regarded as some of the finest examples of city
fortifications in Europe.38 Demilitarisation of this historic area was a precondition
to the recognition of the Old Town as a World Heritage site by UNESCO in
1979.39 One of the unique features of the Old Town is that it has remained a
living city. In fact, in 1991, the Old Town had an estimated population of between
7,000 and 8,000 residents.40 Within its city walls, the Old Town is fairly densely
populated. Its palaces, which would previously have housed not more than a
single noble family, have been divided up into flats and line the narrow streets of
the Old Town. Stradun is the main street bisecting the Old Town on a west east
axis.41
2. Croatian forces in Dubrovnik
22. The Republic of Croatia did not have its own armed forces. 42 Around
March 1991, Croatia established the Croatian National Guards Corps (“ZNG”)
within the framework of the MUP (i.e. the police). 43 The ZNG had a brigade
based in Dubrovnik, the 116th Brigade, which later became the 163rd Brigade.44
Croatian paramilitary forces were also present in Dubrovnik and participated
in the October – December 1991 combat operations in Dubrovnik along with the
members of the ZNG and the MUP.45
3. JNA forces around Dubrovnik
23. The JNA forces positioned in the area of Dubrovnik were under the
command of the 2 OG, a formation at the level of an army, which was
established in mid September 1991 and continued in existence into 1992. The 9
VPS, among other units, was directly subordinated to the 2 OG throughout the
whole period from October to the end of December 1991 and into 1992. The 472
mtbr was subordinated to the 9 VPS from 25 October to 20 November 1991 from
which date, apart from its third battalion, it came under the direct command of the
2 OG. However, the 3/472 mtbr remained directly subordinated to the 9 VPS
from 20 November 1991.46 The 2 OG reported directly to the Federal
Secretary for National Defence.47
24. The Accused was appointed commander of the 2 OG on 12 October 1991
and remained in this position into 1992. Admiral Joki} assumed the command of
the 9 VPS on 7 October 1991 and
38 Exhibit P14, p 5. 39 Exhibit P14, p 16. 40 See generally, John Allcock, T 461-464. 41
John Allcock, T 472. 42 In fact the TO existed within the framework of the SFRY forces,
Admiral Joki}, T 4604-4607. 43 Minister Rudolf, T 5730-5731. 44 Admiral Joki}, T 4607-4618.
45 Admiral Joki}, T 4613. 46 See infra, para 383. 47 Exhibit P204, pp 7 and 28.
Case No IT-01-42-T
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remained on this position into 1992. At 25 October 1991 and into 1992 Captain
Kova~evi} was the commander of the 3/472 mtbr. 48
25. In the period October to December 1991 the JNA units positioned in the
region of Dubrovnik included a significant number of reservists and volunteers.
Due to the departure of Croatian soldiers from the JNA in 1991, the units were
mobilised hastily, primarily from soldiers from Montenegro and Herzegovina, and
included a significant percentage of reservists who had not been fully trained for
their roles.49 On 19 September 1991, the commander of the 472 mtbr, Colonel
Nojko Marinovi}, left his command and joined the Croatian side in Dubrovnik
where he led the Croatian defence of the city. His departure had a negative effect
on the morale of the JNA soldiers as they feared that he would transmit important
intelligence information to the Croatian forces. 50
C. Combat operations around Dubrovnik before October 1991
1. JNA blockade by Croatian forces
26. In August 1991, Croatian forces laid siege to JNA barracks and installations
across the Republic pursuant to a decision of the leadership of Croatia. 51
Electricity and water supplies were cut off and telephone lines were
disconnected.52 During the siege of the JNA barracks, the Croatian forces seized
JNA weaponry.53
27. The JNA barracks of the 9 VPS at Plo~e were attacked and soldiers were
killed. There were attacks in [ibenik, Zadar, Pula and Split. The Divulje garrison
as well as the port of Lora were also blockaded.54 Additionally, during this
period, attacks on JNA military convoys that were en route from Boka to Trebinje
were carried out by the ZNG near the Prevlaka area and in Konavle. 55
48 See infra, para 386. 49 Admiral Joki}, T 3840-3841; T 3863-3867; T 4421; Captain Pepi},
T 7473-7475; Lieutenant-Colonel Stojanovi},
T 7792-7793. 50 Lieutenant-Colonel Pavi~i}, T 6893-6894; Lieutenant Lemal, T 7336-7337;
7385; Admiral Joki}, T 4390. 51 Attacks on the facilities and members of the JNA in Croatia had
taken place even before August, e.g. an incident in
May 1991 in front of the headquarters of the naval military district in Split, when a soldier was
strangled and killed
in an armoured tank: Admiral Joki}, T 4370. 52 Admiral Joki}, T 4372-4375; Slobodan
Novakovi}, T 6810-6813; Lieutenant-Colonel \ura{i}, T 6954; Adrien
Stringer, T 309. 53 Admiral Joki}, T 4372-4375. 54 Admiral Joki}, T 4372-4375. 55 Admiral Joki}, T
4433-4434.
Case No IT-01-42-T
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2. Mobilisation of Croatian and JNA forces
28. The evidence indicates that in the summer of 1991, Croatian forces were
mobilized towards the border with Montenegro, in the territory of Konavle, and
towards Bosnia-Herzegovina, in Rijeka Dubrova~ka, Brgat and Moko{ica. 56
29. In September 1991, hostilities between the JNA and Croatian forces began
in the south coastal area of Croatia. The JNA began slowly advancing towards
Dubrovnik forcing the Croatian forces to retreat from Dubrovnik’s hinterland. 57
Mortar shells were fired every day at the village of Bani, which is in the
immediate vicinity of the border with Montenegro and at the village of Dubravka. 58
30. At the same time the JNA units from Pula, Split and [ibenik were transferred
towards Dubrovnik (i.e. in Kumbor and Tivat, within the area of the Bay of Kotor
in Montenegro).59 On 27 September three patrol boats of the 9 VPS were
pulled out from Pula and moved to Boka.60 The dislocation and resettlement
of military equipment and material, manpower and garrisons, mostly belonging to
the 9 VPS, took place from the territory of the Republic of Croatia to the Zelenika
and Bar ports located in Montenegro.61
3. JNA directive to blockade Dubrovnik
31. On 30 September 1991, pursuant to an order of the General Staff of the
SFRY, the Commander of the 2 OG at the time, Lieutenant-General Jevrem
Coki}, issued to subordinate units a directive to blockade Dubrovnik. 62 The
directive provided for the following deployment of forces: 63
[...] Using most of the forces, to go on the attack from the current sectors, deploying main forces
on these axes: Ljubinje – Zavala – Slano; Ljubovo village – Ivanica - îba~i and Grab – Dubravka
– Molunat; while auxiliary forces will secure features and the Mostar airport and in the Neretva
valley with the following objective: with air, artillery and naval support, operating simultaneously
and forcefully to defeat forces along the attack axes and reaching the coastline, to cut off the
Adriatic highway at several points along the Slano – Prevlaka section, to seal off Dubrovnik, îlipi
Airport and Prevlaka from the land and sea, and to prevent enemy forces from manoeuvring;
56 Captain Negodi}, T 5150; see Annex III.A. 57 Nikola Samardì}, T 997-1000; T 1268-1271. 58
Captain Negodi}, T 5164-5165. 59 Captain Drljan T 7689-7690. 60 Captain Drljan, T
7685-7686. 61 Lieutenant-Colonel \ura{i}, T 6954-6955. 62 On 29 September 1991 the
Commander Jevrem Coki} issued a draft directive for an attack and addressed it to the
General Staff of the SFRY, Colonel General Blagoje Adì}, for confirmation (D44). According to
the established procedure, the General Staff was to confirm the directive and a subsequent order
was to be issued by the Commander of the 2 OG to all subordinate units, pursuant to the order
from the General Staff. Admiral Joki} testified that there was another directive dated 30
September 1991, which was similar in terms of the objectives, tasks and commands to those
specified in Exhibit D44, T 4441-4443.
63 Admiral Joki}, T 4436-4437; Exhibit D44. Case No IT-01-42-T
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then, providing support from the direction of Plo~e, to engage in destroying and disarming the
surrounded enemy forces, and to be in a state of readiness for further offensive operations in
western Herzegovina.64
32. The 2 OG at the time comprised the following units: the 37th Corps, the 472
mtbr (without the 4th Battalion and Combat Group-1), the 1st TO Brigade of the 3rd
Partisan Division and the 9 VPS with the 4th Battalion of the 472 mtbr (4/472
mtbr). Each of these units had its own task in this operation. 65
33. The 37 Corps was tasked to attack the axis of Ljubinje – Ravno – Slano and
also to occupy and defend the airport and features in the Mostar sector and the
Neretva valley. To fulfil this task they were to provide for unhindered use of the
airport, reach the coast, cut off the road and reach the Slano Bay, isolate
Dubrovnik and prevent the enemy from manoeuvring or intervening from the
direction of Plo~e. Additionally, they had to raid part of the forces of a mountain
battalion in the âpljiana sector.66
34. The 472 mtbr with one battalion of the Titograd TO Brigade was assigned to
the axis of Taleà – Zaplanik village – Zaton, and Ljubovo – Ivanica - îba~a.
Their task was to cut off the road in the sectors of Zaton and îba~a, to block
Dubrovnik and cut off the airport of îlipi. Then by securing the flanks prevent
intervention towards Dubrovnik and start disarming and defeating enemy
forces.67
35. The 1 TO Brigade of the 3rd Partisan Division was to attack from the line of
Ograde village – Grab village along the general axis of Grab – Dubravka village –
Plo~ice. Their task was to get to the road and cut it off in the sectors of Poljice
and Mikuli}i, to block the airport of îlipi from the eastern side and establish direct
contact with the 4/472 mtbr and then engage in defeating enemy forces in the
sector of Gruda. The Sutorina feature and Prevlaka were already territories under
JNA control.68
36. The 9 VPS, with the 4/472 mtbr, using land forces and in coordination with
the Titograd TO Brigade was to destroy enemy forces and control Prevlaka and
with naval forces, to exercise control over entry to the Bay of Kotor, to prevent
enemy manoeuvres or operations and support the land forces by naval artillery
and, finally, to be ready to carry out a landing from the sea when necessary. 69
64 Exhibit D44, para 1. 65 Admiral Joki}, T 4438. 66 Admiral Joki}, T 4439; Exhibit D44, para
2 (a). 67 Admiral Joki}, T 4439; Exhibit D44, para 2 (b). 68 Admiral Joki}, T 4439-4440;
Exhibit D44, para 2 (c). 69 Admiral Joki}, T 4440; Exhibit D44, para 2 (d).
Case No IT-01-42-T
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37. The Titograd TO Brigade (without the 1st Battalion) formed the reserve of
the 2 OG in the Trebinje sector and was to be on the ready to be brought into the
attack along the Trebinje – Dubrovnik and Trebinje – îlipi axis. 70
38. The directive specified that the command post of the 2 OG would be in the
Kifino Selo sector and that the forward command post of the 2 OG would be in
Trebinje.71 It was ordered that when the attack started, the harbour of Dubrovnik
should be blockaded so that all civilian and foreign ships could not approach the
shore and carry out an attack.72
39. According to Admiral Joki}, the naval blockade of Dubrovnik ordered on 30
September 1991 was meant to prevent the arming of Croatian forces in
Dubrovnik. It was carried out on the basis of the UN arms embargo in all the
former Yugoslavia.73 According to another witness, the mobilisation of the JNA
around Dubrovnik was indicative that the JNA was prepared to start combat
operations in the area.74 Adrien Stringer gave evidence that Dubrovnik was
blockaded so that supplies could not get through. 75
D. Combat operations around Dubrovnik in October 1991
40. According to witness Nikola Samardì}, on 1 October 1991, during a
meeting at the seat of government in Montenegro, the Accused declared that
Montenegro had been attacked. It was Nikola Samardzi}’s evidence that the
President of Montenegro, Momir Bulatovic, and the Accused spoke of about
30,000 “Ustashas”76 being ready to attack Boka Kotorska in Montenegro. It
appears that neither the alleged attack, nor the 30,000 figure were correct. By
virtue of this “attack”, the Yugoslav Ministry of the Interior agreed to put the TO
and the special police units at the disposal of the army to assist in operations on
the Croatian border.77 The mobilisation of a special police unit and a reinforced
infantry company was ordered to be conducted on 2 October 1991. This unit was
tasked to carry out “combat operations of the armed forces in the conflict of war
on the border of the Republic of Montenegro and the Republic of Croatia” and,
together with the JNA and TO units, to “perform specific military and police tasks
in accordance with the Mission Plan to be devised by
70 Admiral Joki}, T 4440; Exhibit D44, para 2 (e). 71 Admiral Joki}, T 4440; Exhibit D44, para
5. 72 Admiral Joki}, T 4441; Exhibit D44, para 6 (c). 73 Admiral Joki}, T 3823-3825.
74 Lieutenant-Colonel \ura{i}, T 6954. 75 Adrien Stringer, T 310. 76 “Ustasha” is a negative
term and was used to denote the independent military formations of the independent state of
Croatia in WWII. In 1991, it was a serious word to use. Montenegrin politicians started to use this
term in 1991 to refer to the entire Croatian population: Nikola Samardì}, T 970. The Defence’s
position is that the official terminology used by the Federal Secretary of National Defence and the
Chief of General Staff of the SFRY armed forces was that Croatian paramilitary units should be
referred to as “Ustashas”. See Defence Final Brief, para 58.
77 Nikola Samardì}, T 992-993. Case No IT-01-42-T
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31 January 2005
the Operative Command on the Dubrovnik front.” 78 Pursuant to this order, the
Montenegrin Minister of Interior, Pavle Bulatovi}, issued a subsequent order to
“reinforce [this] unit by members
of the Special Platoon of the Special Unit and by policemen of the Titograd CB
/Security Centre/, Nik{i} CB and Bar CB.”79 According to witness Nikola
Samardì}, when the meeting was over, it was clear that there would be a JNA
campaign to conquer Dubrovnik and its territory.80
41. On 1 October 1991, the JNA attacked the area surrounding the city of
Dubrovnik from Montenegro.81 The highway was targeted.82 A JNA warship
targeted the area just above the Zlatni Potok (south of the Old Town). Later two
JNA aircraft targeted Sr|, while the warships near Lokrum fired at Lokrum and
Bosanka.83
42. At the same time, two JNA warships sailed from the island of Mljet to the
island of Lapad in the channel between Lopud and Ora{ac. They opened fire at
trucks and other vehicles leaving Slano on a road leading to Dubrovnik. 84 On 3
or 4 October 1991 when Slano fell, the ships withdrew and the road was
blocked.85
43. On 5 October 1991, the command of the JNA naval sector blocked the
entire area of the Adriatic along the coast. 86 This naval blockade was lifted on
11 October 1991 by an order of the command of the VPO (military naval district).
However, the blockade of Dubrovnik remained in force and vessels were not
allowed to sail unconditionally and had to report their movements. 87
44. In the period from 23 to 26 October 1991, the JNA conducted combat
operations in the region east and northeast of the city of Dubrovnik. On 23
October 1991 the Accused issued an “Order for Further Action,” which directed
the 9 VPS, the 472 mtbr and its subordinate units to undertake military actions
against targets in the region of Dubrovnik along the line of Ivanica, Donji Brgat
and Dubrava.88 Attached to the order was a plan for artillery action, proposed by
the Chief of Staff of the 2 OG and approved by the Accused, which provided for
certain action to be taken by land, air and sea artillery units. The order did not
contain any prohibition of attacks on the Old Town of Dubrovnik. 89
78 Exhibit P27. 79 Exhibit P28, para 2; Nikola Samardì}, T 995-997. 80 Nikola
Samardì}, T 983-984. 81 Captain Negodi}, T 5155. 82 Mato Valjalo, T 1998-1999; see also
Captain Negodi}, T 5155. 83 Mato Valjalo, T 2053; T 2082. 84 Nikola Jovi}, T 2920-2921.
85 Nikola Jovi}, T 2923. 86 Captain Drljan, T 7686-7687. 87 Captain Drljan, T 7687-7689;
Exhibit D105. 88 Exhibit P121; Admiral Joki}, T 3955-3958. 89 Exhibit P121.
Case No IT-01-42-T
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45. Around 15 October, the 3rd company of the 3/472 mtbr took part in combat
operations carried out along the Brgat-Bosanka axis. 90 Combat operations
were also taking place between the 3/472 mtbr located in Ivanica and Croatian
forces on Brgat.91 The JNA troops were fired upon by the Croatian forces from
the village of Gornji Brgat, Donji Brgat and Matrinovi}i. 92
46. On 23 and 24 October 1991, the 3/472 mtbr and 4/472 mtbr defeated the
Croatian forces along the road from Trebinje to Dubrovnik. 93 On 24 October
the 9 VPS took Kupari and the area of @upa Dubrova~ka. 94 On 24 or 25
October 1991, the infantry of the 3rd Battalion of the 5th Motorised Brigade (3/5
mtbr) took control of Dubac.95 On 25 October 1991, the 4/472 mtbr advanced to
the edge of the city of Dubrovnik and took control of @arkovica. The taking of
@arkovica ensured for the JNA a perfect combat position overlooking the town. 96
47. On 24 October 1991, the Accused issued a “Decision for further actions”
addressed to all units directly subordinated to the 2 OG. 97 The decision indicated
that the 9 VPS and the 472 mtbr had advanced to the crossroads between the
villages Dubac and Cubag, êlebi} and Zagrada, Bu~i}i and Grbovce, and
Matrinovi}i and Makos and were ready for further action in the direction of Dubac,
Bosanka, Gornji Brgat and Podgaj.98 The decision further informed the units of
the planned future activities and gave specific tasks to each unit.
E. Shelling of Dubrovnik in October 1991
48. During the combat operations in Dubrovnik municipality on 1 October 1991
the town of Dubrovnik was shelled.99 Many people sought shelter in the hotels of
Dubrovnik, the monasteries of the Old Town, and the Rupe Museum. 100 There
were air raids on the town. They were not frequent but their intensity increased in
the course of shelling.101 JNA jets were flying over the Old Town at a low
altitude but did not target the Old Town. 102 The transmitter in Rijeka Dubrova~ka
90 Lieutenant-Colonel Stojanovi}, T 7795-7797. 91 Witness B, T 5048; Captain Ne{i}, T
8153. 92 Lieutenant Lemal, T 7340. However, according to Lieutenant Lemal, this operation
was a reconnoitring operation,
rather an operation designed to capture territory, T 7395. 93 Admiral Joki}, T 4452-4455. 94
Admiral Joki}, T 4452-4455. 95 Admiral Joki}, T 4456. 96 Admiral Joki}, T 3445-3447;
Captain Negodi}, T 5252-5253. See also Exhibit C1/2. 97 Exhibit P119. 98 Exhibit P119, item 2.
99 Slavko Grubi{i}, T 1026-1027; Lucijana Peko, T 1842; Zineta Ogresta, T 3462-3463; see
also Slobodan Vukovi},
who cannot remember exactly whether it was the last day of September or the first day of
October 1991, T 5819-
5820. 100 \eloJusi},T3057-3058. 101 SlobodanVukovi},T5819-5820. 102 Slobodan Vukovi}, T 5819-
2580; see also Lucijana Peko, to the effect that that the attack seemed to be mainly
carried out by planes, T 1842.
Case No IT-01-42-T
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was hit, leaving Dubrovnik without any power or water supplies. 103 That remained
the position until after 6 December 1991. Many people panicked and started to
store supplies.104
49. On 5 October 1991, the city of Dubrovnik was shelled again. 105 The
shelling commenced around 0300 or 0400 hrs. 106 According to Lars Brolund the
shelling seemed to come from the sea. 107 However, at least one person, Milan
Mili{i}, was killed in the course of the attacks by a 120mm mortar shell, a land
warfare weapon.108
50. On 23 -24 October 1991, the Old Town was shelled for the first time. 109
The JNA artillery fire was directed at the Old Town, Lapad, Gru`, and
Plo~e.110 The shelling began around noon111 and lasted for about an hour.112
Until then the inhabitants had thought that they were safe in the Old Town
as it had UNESCO status.113 The shelling caused damage to several buildings
in the Old Town.114
F. October negotiations and ceasefire
51. Throughout the October combat operations, negotiations between the
parties and international negotiators took place. On 22 October 1991, the Dutch
Ambassador to Yugoslavia, Johannes H W. Fietelaars met with Admiral Brovet 115
at the Yugoslav Defence Ministry to express his concern about the shelling of
Dubrovnik. During the meeting, Admiral Brovet assured Ambassador Fietelaars
that Dubrovnik would be spared as the JNA had already achieved its objectives
in the region.
52. On 26 October 1991, the JNA sent a text to both the EC mission and the
representatives of the town of Dubrovnik entitled: “The recommendations for the
Normalization of Life in Dubrovnik and the ensuring the safety of the city of
Dubrovnik”. The text contained 11 points which were to be implemented by 2000
hours on 27 October 1991. These points included: the demilitarization of
103 LucijanaPeko,T1842;\eloJusi},T1359-1360. 104 \eloJusi},T1360. 105 LarsBrolund,T847. 106
SlavkoGrubi{i},T1080.
107 LarsBrolund,T847. 108 LucijanaPeko,T1843. 109 IvoGrbi},T1347-1348;IvanMustac,T1461. 110
CaptainNegodi},T5164. 111 IvanMustac,T1461-1462. 112 LucijanaPeko,T1845-1846. 113
\eloJusi},T1358-1359;LucijanaPeko,T1843-1844 114 The shelling caused damage to: (a) the
atrium of the Sponza Palace (Ivan Mustac, T 1462); (b) the roof of the Rupe
museum (Lucijana Peko, T 1847; Ivo Grbi}, T 1349-1350); and buildings on both sides of the
Boskovica Street (Lucijana Peko, T 1848-1849; Ivo Grbi}, T 1349-1350); see also \elo Jusi},
confirming damage in respect to one building in the street, T 1358-1359. There may have been
damage to other buildings. See infra, paras 318-319.
115 Admiral Brovet was Deputy Federal Secretary of National Defence (i.e, Deputy Minister of
Defence): Admiral Joki}, T 3869-3870.
Case No IT-01-42-T
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Dubrovnik by the JNA and the ECMM; the departure from Dubrovnik of foreign
mercenaries and Croatian forces (i.e. ZNG and Dubrovnik MUP) who were not
residents of Dubrovnik; and the removal of party symbols from public places in
Dubrovnik. The text guaranteed inter alia, that the JNA would not enter
Dubrovnik and that it would respect a complete ceasefire on Dubrovnik. 116 On the
same date a temporary ceasefire came into force which endured until 8
November 1991. During the ceasefire117, although despite it, there was a lot of
provocative military action by both sides.118 Strong artillery fire was used on both
sides causing the death of combatants from the opposing sides. 119
53. According to witness Per Hvalkof, on 28 October 1991, Ambassador
Bondioli120 of the ECMM met the Accused and General Vukovi} at Milejina in
Montenegro. Admiral Joki} also attended the meeting. The two Generals assured
the ECMM that the ceasefire would be respected and that the ECMM would have
freedom of movement.121 On the same day, the Accused sent a message to
Brussels clarifying that the “11 points plan” of 26 October 1991 was not an
ultimatum to Dubrovnik.122 Ambassador Bondioli referred to Admiral Joki} as the
“hardliner” and the Accused as just a “military man” as he did not really
participate in any discussions and appeared as if he was merely following
orders.123
54. On 29 October 1991, a delegation of Ambassadors from Italy, Greece, the
UK, The Netherlands and the USA met with Admiral Joki} in Tivat. Admiral Joki}
suggested to the delegation that the combat operations carried out by the JNA on
Dubrovnik were carried out in response to provocations of the Croatian forces. 124
On the same day the delegation met with Croatian officials and the Head of
the ECMM to see the damage caused by the attacks on Dubrovnik. 125 The
delegation then returned to Tivat for further discussions with Admiral Joki}.
Admiral Joki} assured them that the JNA had achieved its territorial objectives in
the region and
116
The11pointsweretenderedintoevidencebytheProsecutionandtheDefenceandwereadmittedintoevid
enceas Exhibits P123 and D52 respectively. The Defence in its Final Brief contests the
authenticity of Exhibit P123 and emphasizes that the document is a communication between the
VPS Boka command and the Dubrovnik Crisis Staff and not a document sent by the Accused to
the Dubrovnik Crisis Staff, Defence Final Brief, paras 209-210.
117 AdmiralJoki},T4622-4623. 118 AdmiralJoki},T4624. 119 AdmiralJoki},T4624. 120 Ambassador
Bondioli was the head of the regional centre of the ECMM for the region of Dalmatia,
Ambassador
Fietelaars, T 4265-4266. 121 PerHvalkof,T2138. 122 PerHvalkov,T2258. 123
AmbassadorFietelaars,T4265-4266. 124 AmbassadorFietelaars,T4171-4175. 125
AmbassadorFietelaars,T4176.
Case No IT-01-42-T
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that the only remaining objective for the JNA in the region was the disarmament
of the Croatian forces.126 Admiral Joki} further guaranteed that Dubrovnik would
not be destroyed.127
55. On 1 November 1991, a number of EC Ambassadors attended a meeting
with Admiral Brovet in Belgrade. The meeting was held to express EC concern
on the siege on Dubrovnik. According to Ambassador Fietelaars, Admiral Brovet
appeared insensitive to the EC apprehension concerning the civilian population
of Dubrovnik during the siege.128 Admiral Brovet explained that the JNA could not
withdraw until a political solution was reached. 129
G. Combat operations around Dubrovnik in early November 1991
56. Despite what had been said to the delegation of Ambassadors at the end of
October, in November 1991 JNA forces continued to advance in the direction of
Dubrovnik. In November 1991 the JNA activities were focused in the area of
Dubac, Brgat, Gornji Brgat, Donji Brgat and @arkovica. 130
57. Around 7-10 November 1991 Captain Ne{i}’s anti-armour company of the
3/472 mtbr was ordered to engage in combat operations for taking the village of
Bosanka and the surrounding elevations.131 The 107 Coastal Artillery Group
(107 OAG) also took part in combat operations to take control of the village of
Bosanka. These lasted at least a couple of days, during which time the JNA
forces were fired upon from the region of Strin~ijera and sustained casualties. 132
The Herzeg- Novi TO also participated in this operation and incurred losses
on 8 November 1991,133 as well as Lieutenant Pe{i}’s first platoon of the 3 rd
company of the 3/472 mtbr.134
58. On 9 November 1991 the command of the 9 VPS issued an order for attack
to, inter alia, the 472 mtbr including the 3/472 mtbr, and the 3/5 mtbr. 135 The
order indicated that “the enemy” had “organised the defence of Dubrovnik by
grouping the main forces in the wider region of Lapad, Petka, Babin Kuk and
Lazaret” as well as “by a system of occupying fortresses, houses and bunkers in
the regions: northern edge of ... Bosanka, Sr|, Strin~ijera, Dubrava forest,
Moko{ica, Rozat,
126AmbassadorFietelaars,T4182;T4253. 127 AmbassadorFietelaars,T4257. 128
AmbassadorFietelaars,T4187-4188. 129 AmbassadorFietelaars,T4186-4190. 130 The attention of
the 9 VPS artillery was Bosanka and Sr|, Admiral Joki}, T 4458. See also Exhibit D57 and
Exhibit D58. 131 CaptainNe{i},T8154-8155. 132 CaptainPepi},T7475-7477;7479-
7481;ExhibitsD101andD102.SeealsoCaptainNe{i},T8155. 133 SlobodanNovakovi},T6817-6822. 134
LieutenantPe{i},T7921-7922. 135 See Exhibit D57. The order is signed by Admiral Joki}.
Lieutenant-Colonel Pavi~i} also testified that around 8 or
9 November Admiral Joki} came to the command post of the 1/472 mtbr and after a meeting with
the company commanders of that battalion issued an order for taking over the Moko{ica Komolac
road and the hamlet of Roàt: Lieutenant-Colonel Pavi~i}, T 6906-6909.
Case No IT-01-42-T
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Komolac, Luncijata.”136 The order provided that the units were to respond by
seeking to “gain control over the wider region of Dubrava and Rijeka
Dubrova~ka, break out at the line @arkovica – Sr| – Strin~ijera – Gradci –
Komolac – Rijeka Dubrova~ka and establish full blockade of Dubrovnik from land
and sea and force enemy to surrender.” The aforementioned units were tasked to
achieve this objective as follows:
With the forces of the 1/472nd mtbr and 2/472nd mtbr support the attack of the 3/5 pmtbr. With the
forces of the 3/472nd mtbr, in cooperation with the MO TO, 16 gmo137 and other forces of the 9th
VPS execute attack from the regions of: s Bosanka – Kapela – Ivanica in the direction of: s
Bosanka – Mulin do (k.334)– Strin~ijera (k.412) and until 1600 hours break out in the lines: Sr|
(tt403) – Strin~ijera (k.412) – Gradci (k.353) with the goal of breaking the enemy forces in the
wider region of Sr| – Dubrava. Upon breaking out on the ordered lines, establish control in the
lines: @arkovica (tt 315) – Sr| (tt 403) – Strin~ijera (tt 412) – Gradci (k.353) and establish
complete blockade from Dubrovnik land and Gru` and from the southern side of Rijeka
Dubrova~ka.138
Until 0500 hours, bring unit to the region of combat operations, organize communications and
execute all necessary preparations for attack.
Readiness: 0600 hours 10.11.1991
59. command of the 9 VPS issued a combat order assigning specific tasks for the
day to the units under its command; this order was brought to the attention of the
command of the 2 OG.139 The order, inter alia, instructed the 472 mtbr to
continue the attack on Roàt-Prijevor-Dra~evo village axis and to shell the Sr|
facility and the Komolac sector.140 The 3/472 mtbr was directed to focus the
attack on the Gru`ka Glava-Sr| axis,141 and the 3/5 mtbr to continue the blockade
of the Nova and Stara Moko{ica settlement, and, with 120mm mortars, to support
the attack of the 3/472 mtbr, carrying out strikes on the broader Luncijata sector
and preventing troop reinforcement from Luncijata to Sr|. 142
60. The attack ordered on 9 November 1991 was a significant offensive
effectively to secure for the JNA all the hinterland of the city of Dubrovnik so that
it would control the ridge line of the heights above Dubrovnik, including Sr|. This
attack, which was along an extended front, was pursued with naval and air
support and continued until 13 November 1991. It was successful in its
objectives, except that the JNA failed to capture Sr| despite intensive and
prolonged attack by land forces with naval artillery and air support.
136 Luncijata and Nuncijata are referring to the same place and are therefore used without
distinction in this decision. 137 The16.gmoistheBorderPatrolDetachment,Boka,aunitofthe9VPS. 138
References in the text to “k” and “tt” are map references indicating the elevation points in meters
of the specific
sites quoted. 139 ExhibitP118. 140 ExhibitP118,item1. 141 ExhibitP118,item1. 142 ExhibitP118,item2.
In further pursuit of the order of attack of 9 November 1991, on 11 November
1991 the
Case No IT-01-42-T
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H. The shelling of the Old Town in November 1991
61. By early November 1991 several orders issued by the JNA prohibited
attacks on the Old Town of Dubrovnik, such as an order from the General Staff of
the JNA forbidding attacks on cultural property dated 14 October 1991, 143 an
order of the Accused in his “Decision for further actions” dated 24 October 1991,
which strictly prohibited attacks on the City of Dubrovnik 144 and the
abovementioned order of 11 November 1991 of Admiral Joki}, which contained
an explicit prohibition of attacks on the Old Town of Dubrovnik. 145 The latter
order explicitly prohibited units from opening fire on the Old Town, except in
cases of lethal fire coming from the Old Town. 146 Commanders could order troops
to return fire only in an extreme situation, if they had come under fire that inflicted
heavy losses.147
62. Despite these orders, on 9, 10, 11, and 12 November 1991, in the context
of the JNA operations ordered on 9 November, Dubrovnik, including the Old
Town, was shelled. The fact that Dubrovnik, especially the Old Town, was again
shelled in this November period has been clearly established. 148 In
determining the location, duration and intensity of the shelling in November, the
Chamber has had, inter alia, recourse to the evidence of Paul Davies, a British
journalist and the reports of ECMM monitors, admitted through Per Hvalkof. The
Chamber finds that a period of concentrated shelling of Dubrovnik commenced
on 9 November 1991 and effectively ended on 12 November 1991, although
there were individual incidents that occurred on 13 November. On 9 November in
a protest letter to the Accused, Per Hvalkof, then head of Regional Centre of the
ECMM in Split reports as follows: “Our monitor teams in Dubrovnik have this
morning reported shelling in Dubrovnik by JNA forces on land and sea, starting
before 0900 hours. I strongly protest against this serious breach of the ceasefire,
which I request be restored immediately.”149 On Paul Davies’s evidence the
shelling also started on 9November 1991.150 It continued on 10 November,151
at which point the Old Town itself first came under attack. An ECMM report from
that day records “heavy shelling” from land (@arkovica) and sea. 152 In particular,
it notes the launching of “several mortars shelling, gun fire as well as at least 5
anti-tanks rockets against the
143 ExhibitP116. 144 ExhibitP119,item3. 145 ExhibitP118. 146 Exhibit P118, Admiral Joki}, T 3925.
Another order, issued by the Accused as the commander of the 2 OG to the
9 VPS, on 18 November 1991, after the combat operations of 8 to 13 November 1991, also
required the units not to open fire on the Old Town of Dubrovnik and to retreat the units exposed
to enemy fire to cover: Exhibit D47, item 4.
147 AdmiralJoki},T3922-3925. 148 IvoGrbic,T1352-
1354;IvoVla{ica,T3320;T3326;LucijanoPeko,T1847-1848;CaptainNegodi},T5257-5262. 149
ExhibitP61,tab10.SeealsoExhibitP61,tab23,p5. 150 PaulDavies,T577. 151 See inter alia, a protest
letter from Per Hvalkof dated 10 November 1991 reporting continuing heavy shelling of
Dubrovnik by JNA.
Case No IT-01-42-T
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Old city walls and the Old port. Some shellings, as reported, touched the Old
inner city.”153 That same day, Paul Davies and his team, while investigating
reports that the Old Town had been hit, heard what they believed to be mortars
hitting the Old Town. They were told that there had been three others before. 154
They were shown the damage to the Franciscan complex in the Old Town,
including the monastery and the convent. 155
63. On 11 November 1991 the attack on Dubrovnik intensified. 156 In the
context of a much broader attack on Dubrovnik, a lot of shells were falling very
close to the Old Town, as well as within the Old Town itself. 157 Paul Davies and
his team were filming the shelling on 11 November 1991. On his evidence, the
shelling was so heavy that day that he and his team were able to recognise a
pattern of noise, followed by the trajectory of the shell and the point of impact. 158
An ECMM monitor stated in his report on 11 November that on that evening
he could see the old port on fire, as well as part of the city beyond the walls. 159
64. The shelling continued on 12 November. The ECMM monitors reported
sporadic shelling in the morning, which escalated in the afternoon. They also
recorded a “continuation of the burning fire in the city”, although it is not clear if
this refers to the Old Town.160 It was the evidence of Paul Davies that the attack
that day, unlike the previous days of shelling, was concentrated on the Old
Town.161 He characterised the attack on the Old Town that day as “deliberate”
and “sustained”.162 He and his team filmed between 15 and 17 impacts of wire-
guided missiles, although he testified that the total number of such missiles used
on 12 November 1991 against the Old Town was probably somewhere between
30 and 100.163 The wire-guided missiles hit the walls of the Old Town, the boats
moored in the sheltered area in the port of the Old Town, as well as hitting
locations within the Old Town.164 The evidence establishes that the shelling
of the Old Town on 12 November was intense. 165
152 ExhibitP61,tab22. 153 ExhibitP61,tab22(emphasisomitted). 154 PaulDavies,T588. 155 Paul
Davies, T 588. According to Captain Negodi} the shelling caused damage to 45 places of
worship, T 5259. Ivo
Grbi} gave evidence that the Lovrijenac fort and private boats in the harbour were also damaged
by the attack,
T 1352-1354; T 1454. There may have been damage to other buildings. See infra, paras 318-
319. 156 PaulDavies,T589;T3600. 157 PaulDavies,T589. 158 PaulDavies,T591. 159 ExhibitP61,tab22.
160 ExhibitP61,tab22. 161 PaulDavies,T597-598. 162 PaulDavies,T597. 163 PaulDavies,T599. 164
PaulDavies,T600. 165
PaulDaviesindicatedthatheandhisteamhadcounted1000incomingexplosionsthatday,afterwhichthey
stopped
recording them. Paul Davies, T 607.
Case No IT-01-42-T
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65. On 13 November 1991, the ECMM monitors reported only “sporadic
shooting in the morning” with the situation quietening down as from 1200
hours.166 Paul Davies testified that he was able to visit the Old Town briefly on
that day and see the damage. His evidence was that there had been:
[a] lot of damage, shell impacts. You could still see some of the missiles that hadn't exploded
stuck in the walls of the Old Town, stuck in the areas of the harbour where they had fallen. You
could see the damage from those that had exploded, both on the walls and on the roadways
where they had landed and where they had landed on buildings causing damage and fires, where
they had landed on cars that had been set on fire and destroyed. And most of the boats that had
been moored in that little harbour in front of the Old Town had been set on fire and sunk. 167
66. Dubrovnik.168 There is no indication of infantry involvement. The JNA artillery
was firing from various places, including @arkovica.169 Paul Davies testified
he could see “the barrels of artillery pieces on top of @arkovica.” 170 He stated
that “at times of shelling, you could film those and see them recoil and the puff of
smoke that came from them as they were firing. And then a few seconds later
there would be an explosion in Dubrovnik.” 171 It was Paul Davies’s assessment
that the JNA attack on Dubrovnik in early November 1991 was a coordinated
attack involving land (i.e. artillery) sea and air forces. 172
67. Wire-guided missiles were used by the JNA. Based on his view of the
damage to the Old Town on 13 November 1991, Paul Davies concluded that the
firing came from the south of Dubrovnik.173 This was the side from which he
had witnessed missiles being fired over the water towards the Old Town. 174
Captain Ne{i}, whose battalion was stationed at @arkovica, 175 which is only
approximately 2300 metres to the south of the Old Town, confirmed that the Old
Town was shelled between 10 and at least 12 November 1991 by wire-guided
“Maljutkas” missiles or rockets. It was his evidence that his unit was targeting
Croatian firing positions over this period, 176 although
166 ExhibitP61,tab22. 167 PaulDavies,T606. 168 PaulDavies,T594-
595,T607.AccordingtoAdmiralJoki},atthetimeoftheattackthe9VPSconstitutedofthe
16th Border Detachment, the 69th missile base, the PBO division of the 337th Naval Rear Base, the
107 OAG, two mobile artillery battalions of 85 millimetres and 130 millimetres, and staff units. The
2 OG mainly comprised of land forces and some naval units within the 9 VPS; it did not have an
own air-force unit, but according to Admiral Joki} “it did have the support of the 97 th Air Force
Brigade.” Admiral Joki} further pointed out that “parts of this brigade did act on orders of the
commander of the 2 OG”: Admiral Joki}, T 4397-98, T 3823.
169 Paul Davies, T 594; T 607; Ivo Vla{ica testified that he observed JNA forces on @arkovica in
November 1991, T 3317. See Annex III.E.
170 PaulDavies,T583. 171 PaulDavies,T583. 172 PaulDavies,T594-595. 173 PaulDavies,T607. 174
PaulDavies,T593;T600;T3565-3566. 175 CaptainNe{i},T8158. 176 Captain Ne{i}, T 8203. He testified
that the quantity of ammunition used during this period and the objectives
targeted were topics he discussed with his battalion commander.
The evidence indicates that in November 1991, JNA warships, aircraft and
artillery attacked
Case No IT-01-42-T
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31 January 2005
there is clear reason for reservation about this, as there is with other aspects of
his evidence as discussed later. According to Captain Ne{i}, Croatian forces were
firing at the battalion in @arkovica from the Old Town; he said Croatian forces
were firing mortars from a machine gun post in the harbour and from the Pile
gate.177
68. There was a serious imbalance of arms and weapons between the parties
to the conflict throughout October-December 1991. The Croatian forces were far
outnumbered, in particular their artillery, during this period. 178 The JNA had
heavy and light artillery, tanks, aircraft, and warships. The Croatian forces did not
have aircraft or warships179 and had only small weapons, rifles, pistols and a
small collection of other weaponry that was not particularly effective. This
weaponry included mobile units known as “Charlies” (i.e. vehicles with mounted
mortars or small calibre canons).180 The mobile units permitted the Croatian
forces to move quickly to different locations and to get closer to the objectives
targeted.181 The Chamber notes that in this judgement it does not have
regard to issues, which occupied some time in the evidence, whether rockets and
smaller calibre mortars should be regarded as artillery or infantry weapons;
similarly some types of heavier machine guns. “Artillery” will often be used in this
decision as including such weapons.
69. The Croatian forces were also short of ammunition due to the JNA land and
sea blockade of Dubrovnik. Their only source of re-supply was by night, when
some ammunition was shipped in on speedboats that managed to get through
the sea blockade.182 As Paul Davies was told by the Croatian forces on Sr|, due
to the imbalance of arms and weapons of the opposing sides, the Croatian forces
could not take initiatives to attack and only responded to attacks from the JNA
forces.183 Significantly, it was the evidence of Admiral Joki} that the town of
Dubrovnik was “not sufficiently armed to pose any real danger to the ₣JNAğ
forces” in the area.184
70. It is also the case that, with the singular exception of Sr|, the JNA occupied
all the high ground. This aided its artillery and disadvantaged in range the
Croatian weaponry. Paul Davies recalls that on a number of occasions the
Croatian forces attempted to shell JNA artillery positions but without success.
However, on one occasion, the Croatian forces managed to land a shell on the
top of @arkovica.185 Paul Davies filmed the impact of the explosion on
@arkovica. After the
177 CaptainNe{i},T8157-
8158.ExhibitD19isamapindicatingtheCroatianfirepointsasmarkedbyCaptainNe{i}. 178
CaptainNegodić,T5355. 179 PaulDavies,T595. 180 PaulDavies,T583-585;T601;T3561;T3567-3568.
181 PaulDavies,T601;T3555-3556. 182 PaulDavies,T585-586. 183 PaulDavies,T585-586. 184
AdmiralJoki},T3974.
185 PaulDavies,T601;T3590-3592. Case No IT-01-42-T
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detonation, Paul Davies filmed five people on the walls of the Old Town, two of
whom wore uniforms and carried weapons.186
71. As for the Croatian defensive positions in November 1991, it has been
established that they were both stationary and mobile. According to Captain
Negodi} who had command of the Croatian artillery, there were fixed mortar
positions in the city of Dubrovnik, although none were in the Old Town. There
were positions, for example, close to the SDK building to the north west of the
Old Town, in the Bogi{i}a Park to the west, and in the area called Lazareti
immediately to the east of the Old Town, as well as in Lapad and Solitudo further
to the west. These locations were chosen as they were sheltered from the view
of the JNA.187 Croatian forces were also positioned on Sr|, 188 and were operating
near the port of Gru`.189 They also had a position close to the Belvedere Hotel 190
and the Argentina Hotel,191 as these were in the vicinity of the JNA positions on
@arkovica.192 Croatian forces also used the above-mentioned mobile mortar
units.193 The Croatian tactic was to get close to the target with a mobile mortar
unit, fire and move away to avoid JNA return fire.194 Mobile mortar units were
moved in and around the newer parts of Dubrovnik accordingly. 195
72. No Croatian artillery was positioned in the Old Town of Dubrovnik in
November 1991.196 However, there were JNA reports of shooting incidents from
the Old Town walls and turrets in the beginning of November. These reports do
not, however, indicate that the Croatian forces were positioned on the Old Town
walls and turrets throughout the rest of November. 197 A number of witnesses
testified that there was no outgoing fire from the Old Town in November. 198
Individuals armed with light weapons, such as pistols, could be observed
moving around the Old Town but there were no set defence positions. 199
186 PaulDavies,T3563. 187 CaptainNegodić,T5342-5344. 188 PaulDavies,T583-586. 189
PaulDavies,T3588-3589. 190 PaulDavies,T3598. 191 PaulDavies,T3555-3556. 192 PaulDavies,T603.
193 PaulDavies,T3590-3592;T3555-3556. 194 PaulDavies,T629-630;T3555-
3556.SeealsoSlobodanNovakovi},T6872. 195 Lieutenant-Colonel Pavićić, T 6900-6901; Lieutenant
Lemal, T 7356 ; Paul Davies, T 3569-3570. 196 PaulDavies,T627-628. 197 AdmiralJoki},T4963-
4973. 198 PaulDavies,T603;CaptainNegodić,T5260-5261. 199 PaulDavies,T3601.
Case No IT-01-42-T
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I. November negotiations and ceasefire
73. Following the November attack and the repeated shelling of Dubrovnik
another ceasefire came into force on 13 November 1991. 200 Yet, the ceasefire
was not complied with by either side. There was ongoing disputation as to which
side provoked each violation. To a degree that disputation was ventilated in
evidence, but not to an extent which enables any decision to be made. There are
reports in JNA records of Croatian violations and protests by both sides against
violations by the other.201 The Chamber will return to this issue in respect of
events of 5 and 6 December 1991.
74. In this context the Chamber notes yet another order, this time issued by the
Accused as commander of 2 OG to the 9 VPS, on 18 November 1991. This order
required those units not to open fire on the Old Town of Dubrovnik and to retreat
units exposed to enemy fire to cover.202 This order is significant in timing because
of negotiations for a resolution of the position on Dubrovnik then getting under
way.
75. With a view to reaching an agreement on a permanent ceasefire, from mid-
November until the beginning of December 1991, negotiations resumed between
the JNA, the Croatian Government, the Dubrovnik Crisis Staff and the ECMM. 203
The evidence indicates that the principal negotiators for the JNA were
Admiral Joki}204 and Colonel Svi~evi}205 a staff officer of the 2 OG. One of the
main negotiators for the Croatian government was Minister Davorin Rudolf,
Minister for Maritime Affairs of the Croatian government. 206
76. Following the shellings of Dubrovnik in November 1991, the ECMM
monitors had withdrawn from Dubrovnik for safety reasons. 207 On 19 November
1991, Minister Bernard Kouchner, the French Minister of Culture, Colonel
Svi~evi} and representatives of Dubrovnik, signed another agreement providing
for, inter alia the mutual withdrawal of armed forces from Dubrovnik and the
surrender of weapons.208 On 23 November 1991 a further agreement was
signed in Geneva, calling for an unconditional ceasefire and the withdrawal of
JNA forces from
200 Admiral Joki}, T 4803; see more generally Captain Ne{i}, to the effect that from November as of
5 December a ceasefire was in force, T 8217.
201 Lieutenant-
ColonelStojanovi},T7804;seealsoCaptainNe{i},specifyingthattheprovocationsfromtheCroatian
forces, using small arms with silencers, occurred on a daily basis, T 8163; Lieutenant Lemal, T
7359.
202 ExhibitD47,item4. 203 ExhibitsP61andD90. 204 ExhibitP61,tab26. 205 ColonelSvi~evi},T7064-
7065.SeealsoPerHvalhof,T2180. 206 MinisterRudolf,T5476-5477. 207 PaulDavies,T608. 208 Per
Hvalkof, T 2178; Colonel Svi~evi} further testified that Minister Kouchner also participated in other
negotiations in November and December 1991, T 7072-7074.
Case No IT-01-42-T
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Dubrovnik. Among the signatories were Franjo Tudjman, Slobodan Milo{evi},
General Kadijevi} and Cyrus Vance.209
77. On 25 November 1991, a “Memorandum of Agreement” was reached. The
JNA side was represented by the naval and military commanders of the JNA in
the Dubrovnik area: Admiral Joki} and General Damjanovi}. 210 The Croatian side
was represented by the mayor of Dubrovnik and other officials. Minister
Kouchner also attended the meeting. The agreement inter alia protected the
return of the ECMM to Dubrovnik.211
78. On 28 November 1991, the Croatian Prime Minister, Mr Greguri}, mandated
Minister Rudolf together with two other ministers to represent the Croatian
government in further negotiations pertaining to Dubrovnik. The main objectives
of the negotiations were the cessation of hostilities and the withdrawal of the JNA
from Split. The JNA guaranteed that there would be no combat actions during the
negotiations.212 After visiting Split, on 4 December 1991, Minister Rudolf and the
two other ministers arrived by ship in Dubrovnik to meet with two representatives
of the town: Mr Poljani}, the mayor of Dubrovnik, and Mr Ziki}, the president of
the Executive Council of Dubrovnik.213 The ECMM monitors were also
present.214On the same day, Minister Rudolf contacted the JNA liaison officer
Captain Jeremi} and agreed to start negotiations on the next day, 5 December
1991, in Cavtat.215
209 GenevaAccord,23November1991(UNDoc.S/23239,Annex). 210 PerHvalkof,T2182. 211
PerHvalkof,T2182;ExhibitP61,tab28. 212 MinisterRudolf,T5485-5486.
213 MinisterRudolf,T5746;AdrienPaulStringer,T415. 214 MinisterRudolf,T5746. 215
MinisterRudolf,T5491-5492.
Case No IT-01-42-T
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IV. THE ATTACK ON 6 DECEMBER 1991 A. The planning of the attack –
events before 6 December 1991
79. On 3 December 1991, the Accused, as commander of the 2 OG, attended a
top level meeting at the General Staff in Belgrade with senior officers of the
JNA.216 This was a time for significant strategy decisions by the JNA and the
government in Belgrade. As is noted briefly elsewhere in these reasons, events
of political and military significance for them were happening, both within the
territory of the former Yugoslavia and elsewhere. 217 The blockade of Dubrovnik
by the JNA had been in place for several weeks during which the JNA had made
significant advances on the ground which firmly tightened its grip on Dubrovnik. It
should be observed, however, that Dubrovnik was but one of many issues
between Belgrade and Zagreb. It would be misleading to think that Dubrovnik
was an issue to be considered in isolation in either capital or by the JNA. In
particular, still not implemented, was the agreement signed in Geneva at the
highest Croatian and Serbian levels for an unconditional ceasefire and the
withdrawal from Croatia of JNA forces.218
80. The Croatian ministerial committee, led by Minister Rudolf, which arrived in
Dubrovnik on 4 December 1991, was to negotiate with the JNA in an attempt to
resolve the problem of the blockade of Dubrovnik. 219 It appears that on 3
December 1991, in Belgrade, the Accused was given responsibility for
conducting negotiations with the Croatian ministers. 220 In the event, however,
the Accused delegated that responsibility to his immediate subordinate, Admiral
Joki}, the commander of the 9 VPS.221
81. So it was that on 5 December 1991, Admiral Joki} attended a meeting with
the Croatian ministers to seek to negotiate a settlement. On the Admiral’s
evidence, much progress was made and by the end of the meeting there was
only one issue in the way of a ceasefire agreement, namely whether vessels
bringing supplies or people to Dubrovnik should be boarded and inspected by the
JNA at sea, as the Admiral proposed, or after berthing as the Croatians
proposed.222 Admiral Joki} testified that he was concerned that JNA sailors
would be at risk if they were inspected in the port. 223 On his evidence, at the end
of the meeting it was determined that the negotiations should be resumed on the
morning of 6 December 1991, and, in anticipation of that one issue being
resolved it
216AdmiralJoki},T4030-4033. 217 Seesupra,paras13-18. 218
GenevaAccord,23November1991(UNDoc.S/23239.Annex). 219 MinisterRudolf,T5491-
5492;PerHvalkof,T2183. 220 AdmiralJoki},T4030-4031. 221 AdmiralJoki},T4031-
4034;MinisterRudolf,T5589-5591. 222 AdmiralJoki},T4038-4039;MinisterRudolf,T5596-5597. 223
AdmiralJoki},T4038.
Case No IT-01-42-T
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was tentatively expected that a ceasefire agreement would be signed 224 and that
the ceasefire would come into effect at 1200 hours on 6 December 1991. 225
The other terms as tentatively agreed made no provision for relinquishment
of Sr| to the JNA.
82. It is the evidence of Admiral Joki} that on 5 December 1991, following the
meeting with the Croatian ministers, he reported to the Accused at Trebinje. 226
It is the evidence of Admiral Joki} that the Accused was not concerned
about the terms of the proposed ceasefire agreement and regarded the one
outstanding issue as one to be determined by the Admiral as it was a naval
matter.227 It is the evidence of Admiral Joki} that the Accused agreed that there
should be a ceasefire from 1200 hours on 6 December 1991 in anticipation that
final agreement could be reached the next morning with the Croatian ministers. 228
It is the evidence of Admiral Joki} that after this meeting in Trebinje he
advised his senior staff of the intended ceasefire at 1200 hours. 229 While there is
no evidence contradicting this account by the Admiral, the Defence contends it
should not be accepted that there was any contact between the Accused and
Admiral Joki}230 as there is no record of such a communication in any log of the
JNA which is in evidence. In this regard, the Chamber does not find it surprising
that the Admiral and the Accused might speak directly, without there being a
logged record, especially if the Admiral visited the Accused to report personally.
On the contrary, the Chamber considers it would be surprising indeed if Admiral
Joki} did not make a report to the Accused as to the course of such an important
negotiation, which he conducted on behalf of the Accused, especially as a
ceasefire was contemplated. The Chamber therefore finds that Admiral Joki} did
report to the Accused on 5 December 1991 following the meeting with the
Croatian ministers. For a number of reasons, which will be developed in this
decision, the Chamber has reservations, however, as to what was discussed
when the Admiral made his report.
83. There was no meeting with the Croatian Ministers on 6 December 1991.
Initially it was deferred until later in the day and then, principally because the
ferry in which the Croatian ministers were to travel to the meeting place was
destroyed during the attack on Dubrovnik and because Admiral Joki} was
ordered to go to Belgrade in the afternoon of 6 December 1991, it was postponed
until 7 December 1991.231 While it was the effect of Admiral Joki}’s evidence that
every issue between the JNA and the Croatian side was resolved in the
negotiations on 5 December 1991,
224 AdmiralJoki},T4038-4039. 225 AdmiralJoki},T4040. 226 AdmiralJoki},T4039. 227
AdmiralJoki},T4039;4715. 228 AdmiralJoki},T4040.
229 AdmiralJoki},T4040. 230 DefenceFinalBrief,para277;AdmiralJoki},T4859-4863. 231
MinisterRudolf,T5559-5561;ExhibitP162.
Case No IT-01-42-T
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except for the question whether ships should be inspected at sea by the JNA or
after they had berthed in Dubrovnik,232 that really puts too generous a gloss on
the state of the negotiations at their adjournment on 5 December 1991.
Minister Rudolf identified two issues which remained
outstanding, the inspection of ships and the lifting of the naval blockade. 233 He
also stated that at the 5 December 1991 negotiations, Admiral Joki} had
proposed a demilitarisation of Dubrovnik in exchange for the lifting of the
blockade and the withdrawal of the JNA forces out of shooting range, 234 but
agreement on this had not been reached at the time. Some of the issues for
negotiation had been settled on5December1991, namely a ceasefire, the
reopening of roads and the restoration of daily services. 235 However, the others
remained unresolved. On 6 December 1991, Admiral Joki} sent a message to
Minister Rudolf in which he proposed to resume the negotiations on 7 December
1991 at 1200 hours and gave an outline of the issues to be incorporated in the
agreement.236 Included were the issues already resolved on 5 December 1991,
but Admiral Joki} also conceded that ships could be checked in the port of Gru` in
Dubrovnik. The Admiral, however, reiterated his proposal for the blockade of
Dubrovnik to be lifted in exchange for the evacuation of the members of the
Croatian armed forces in the town.237
84. On 7 December 1991, the talks resumed in Cavtat. An agreement was
signed.238 The inspection of the ships in the port of Gru` was included in the
agreement.239 It appears, however, that the lifting of the blockade and the
demilitarisation of Dubrovnik were not able to be resolved and a compromise was
adopted. The agreement provided for the intention of both parties to “gradually
reduce manpower and equipment. In that respect, the parties will mutually agree
and inform on the ways and directions of the diminution of armed forces in the
town of Dubrovnik and its surroundings.”240 It is apparent from this that when
negotiations were adjourned on 5 December 1991, issues of far reaching policy
significance remained unresolved. The Chamber is unable to reconcile this with
the evidence of Admiral Joki} that ONLY the issue of the inspection of the ships
remained unresolved on 5 December 1991, an issue which the Accused saw to
be solely a naval concern which the Accused had left to Admiral Joki} to resolve
when the Admiral reported to the Accused on the negotiations late on 5
December 1991.241
232AdmiralJoki},T4038-4039. 233 MinisterRudolf,T5752-5753. 234 MinisterRudolf,T5592-5595. 235
MinisterRudolf,T5753. 236 ExhibitP162,p20. 237 ExhibitP162,p20,items4and7. 238
MinisterRudolf,T5718-5720.SeealsoExhibitP61,tab38. 239 ExhibitP61,tab38,Article3. 240
ExhibitP61,tab38,Article2. 241 AdmiralJoki},T4039.
Case No IT-01-42-T
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85. Other material events were occurring on 5 December 1991. Late in the
afternoon, a meeting was held at the forward command post of the 9VPS at
Kupari near @arkovica. The Chamber accepts the evidence that those at the
meeting included Warship-Captain Zec who was Chief of Staff to Admiral Joki},
the operational officer of the 9VPS Captain Kozari}, the assistant commander
responsible for moral guidance of the 9VPS Lieutenant-Colonel Zarkovi}, the
commander of the 107 OAG Lieutenant-Colonel Stamenov and the temporary
commander of the 3/5 mtbr Lieutenant-Colonel Jovanovi}. Also present was the
commander of the 3/472 mtbr Captain Kova~evi}, who provided the assault
troops for the attack on Sr| the following morning. 242 The 3/472 mtbr had its
120mm mortar battery positioned inland from Dubrovnik in the U{koplje region. 243
Each of its companies also had four 82mm mortars. 244 Those attending
the Kupari meeting were all senior 9 VPS staff officers or commanders of 9 VPS
units, at that time under the immediate command of Admiral Joki}, and the
superior command of the Accused, as the 9 VPS was part of the 2 OG which the
Accused commanded.245
86. Lieutenant-Colonel Jovanovi} testified that Admiral Joki} himself attended
the meeting and that during the meeting Captain Kova~evi} outlined problems his
troops were experiencing with the Croatian forces occupying Sr| and proposed
that his troops should take Sr| in a quick action the next morning. 246 This was to
be accomplished before an anticipated ceasefire at 1200 hours. In a battle plan
which Captain Kova~evi} put forward, heavy artillery support was to be provided
by the 107 OAG howitzers at îlipi, as well as the heavy 120mm mortars of the
3/472 mtbr at U{koplje and of the 3/5 mtbr at Osojnik. 247
87. Admiral Joki} emphatically denies he attended that meeting. He gave an
account of his movements on the afternoon and evening of 5 December 1991
which did not include being at Kupari for this meeting. 248 It is true, as the
Defence submits, that in some respects, the account of his movements given in
evidence differs from earlier accounts when interviewed by investigators from the
Office of the Prosecution.249 The Admiral accepts this, explaining that so
many years after the event, his recollection was initially faulty and he had to
correct his earlier statements after he had had a chance to review records and to
discuss the events with others.250 The Chamber notes that the evidence does
not suggest there was any formal record of this meeting, certainly none is
242 243 244 245 246 247 248 249 250
Lieutenant-ColonelJovanovi},T8079-8080;8132. Admiral Joki}, T 3863-3864; 3980; Exhibit P132.
Admiral Joki}, T 3840; 3980.
Seeinfra,paras384-385. Lieutenant-ColonelJovanovi},T8079-8080. Lieutenant-
ColonelJovanovi},T8079-8081. AdmiralJoki},T8564-8572.
Defence Final Brief, paras 302-304. AdmiralJoki},T4860-63;8576.
Case No IT-01-42-T
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given in evidence, and apart from Lieutenant-Colonel Jovanovi} none of the other
officers said to be at the meeting were called to give evidence by either the
Prosecution or the Defence.
88. Lieutenant-Colonel Jovanovi} has a significant personal interest in having
Admiral Joki} present at the Kupari meeting. Lieutenant-Colonel Jovanovi},
curiously, was temporarily appointed to command the 3/5 mtbr on 5 December
1991, the actual commander having been granted temporary leave, 251 and was
summarily relieved of his temporary command on the evening of 6 December
1991 on the order of Admiral Joki}. 252 It is Lieutenant-Colonel Jovanovi}’s
evidence that he was never told the reason for his removal but that he knew it
had nothing to do with the shelling of the Old Town. 253 Admiral Joki} testified
that he replaced Lieutenant-Colonel Jovanovi} because he had given artillery
support to Captain Kova~evi} without his approval. 254 In response to this,
Lieutenant-Colonel Jovanovi} contends that Admiral Joki} was present the day
before at Kupari when the battle plan was outlined, and although he did not
expressly give the authority for the attack, by his presence and apparent
acceptance, Admiral Joki} gave him every justification for understanding that the
attack was authorised.255 The issue whether Admiral Joki} was at the Kupari
meeting is not determinative of the Chamber’s decision in this trial, although it
has a relevance to credit. It remains in balance. Irrespective of that issue, the
Chamber does find, however, that Warship-Captain Zec, who was the Chief of
Staff of Admiral Joki}, and other senior 9 VPS staff officers were present at the
meeting and that at the meeting a battle plan to take Sr| the following morning
was determined, a plan which involved the use of mortars and other artillery, as
required, to support the assault on Sr|.
89. Notwithstanding this last finding, because of other evidence considered
later concerning the Accused’s role, the Chamber also records an express
reservation concerning the evidence of Lieutenant-Colonel Jovanovi} that the
attack on Sr| for the next morning was proposed by Captain Kova~evi} at the
meeting and then agreed to and planned at that meeting by those present. Such
an attack would be a major provocation and a glaring breach of the existing
ceasefire and was to occur in the very course of negotiations by Admiral Joki}, as
the Accused’s deputy, for a more soundly based resolution of the Dubrovnik
crisis. The very evidence of Lieutenant-Colonel Jovanovi} reveals that at least the
prospect of a new ceasefire at 1200 hours the next day was known at the
meeting. Especially given the nature of the command structure of the JNA, it is
immediately surprising that such an attack would even be considered, or
implemented, on the proposition of a mere battalion commander at the level of
authority of those present, whether or not
251AdmiralJoki},T8551-8552. 252 Lieutenant-ColonelJovanovi},T8093-8098;seealso,ExhibitD65. 253
Lieutenant-ColonelJovanovi},T8097-8098;8104. 254 AdmiralJoki},T8553.
Case No IT-01-42-T
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31 January 2005
Admiral Joki} was present, and without reference to the commander of the
operational force, i.e the Accused. The negotiations then being conducted by
Admiral Joki} only serve to heighten the improbability of what is suggested.
90. Much later on 5 December, in the evening, the company commanders of
the 3/472 mtbr, were contacted by the duty communications officer at the 3/472
mtbr’s command post in Gornji Brgat.256 They were requested to attend a
meeting at the command of Captain Jeremi} in Ivanica. 257 Shortly after everyone
had assembled, Captain Kova~evi}, the commander of the 3/472 mtbr, arrived. 258
He informed them that the units of the 3/472 mtbr would launch an attack on
Sr| the following day and began delegating tasks to the various units relating to
the operation.259 The objective, he said, was to take Sr| quickly and hold onto
the position, so as to be able to exercise control over the surrounding terrain. No
other objectives were mentioned.260 Those who attended the meeting testified
that Captain Kova~evi} had said that the plan to attack Sr| had been approved by
the superior command.261 The Chamber notes that this clearly indicates at least
the commander of the 9 VPS but could equally indicate the commander of the 2
OG. The company commanders inquired about artillery support for the attack and
were told that support would come from the 120mm mortar company located in
U{koplje262 as well as the units stationed in îlipi (130mm howitzers) and
Lieutenant-Colonel Jovanovi}’s unit, the 3/5 mtbr, based at Osojnik (120mm
mortars).263 Smaller mortars and cannons as well as rockets were company
weapons under the command of those present.
91. In the Chamber’s view, the content of this discussion is significant. First, it
offers clear support for the veracity of the evidence that Captain Kova~evi} had
earlier attended a meeting at Kupari at which the commanders of the îlipi
howitzer battery and of the 3/5 mtbr were present and the battle plan for the
taking of Sr| the next day was put in place. Secondly, as the îlipi howitzer battery
and the 3/5 mtbr were not under Captain Kova~evi}’s command, the involvement
of those units demonstrates that the plan for the attack, and its implementation,
involved coordinated planning at a higher level than the 3/472 mtbr. In this case
the other units were each subject to the command of the 9 VPS, Admiral Joki},
and, at the next level, of the 2 OG, so the attack plan was consistent with the
involvement of those two commands, or, at least, with the involvement of the
command of the 9 VPS. Thirdly, it demonstrates the significance of artillery
support for an attack
255 ExhibitD108. 256 CaptainNe{ić,T8164;Lieutenant-ColonelStojanovic
́,T7821;LieutenantLemal,T7366. 257 Lieutenant-ColonelStojanović,T7821;LieutenantLemal,T7366.
258 LieutenantLemal,T7366;7458-7459;CaptainNe{i},T8164. 259 LieutenantLemal,T7368. 260
Lieutenant-ColonelStojanović,T7822-7824;CaptainNe{ić,T8165-8166. 261 Lieutenant-
ColonelStojanović,T7822;LieutenantLemal,T7367. 262 Lieutenant-ColonelStojanović,T7847-7848.
Case No IT-01-42-T
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31 January 2005
such as this. The need for it was immediately a concern of those who were to
actually lead the ground assault troops, and had been anticipated by those
planning the attack at a higher level. The plan provided for the use of quite a
formidable artillery capacity. In addition to the smaller 82mm mortars attached to
each company of the 3/472 mtbr, there were two 120mm mortar companies, the
anti-armour company at @arkovica with an array of weapons, including recoilless
cannons and Maljutka rockets, ZIS cannons and the heavy 130mm howitzer
cannons at îlipi. With limited exceptions, all of these had the capacity to fire at
the wider Dubrovnik including Sr| and the Old Town. The exceptions were that
the 120mm mortars of the 3/5 mtbr at Osojnik could not quite reach the Old
Town, and the 120mm mortars at U{koplje could not reach all of the suburbs or
localities of Dubrovnik to the far northwest of the Old Town, although, between
them, the two 120mm mortar batteries and the 82mm mortar battery at Strin~ijera
could target the whole of Dubrovnik, including the Old Town. There were also
other 82mm mortars batteries in the 3/472 mtbr but the evidence does not clearly
identify their location. There is also a question about the range of the 82mm
recoilless cannons at @arkovica. This is considered later in these reasons,
where the finding of the Chamber is made that these cannons could target Sr|
and the Old Town from @arkovica.
92. After this meeting in Ivanica, Lieutenant Pesi}, stationed in the village of
Bosanka, was contacted by his commander, Captain Stojanovi}, who had
attended the meeting. Lieutenant Pesi} was assigned the task of assembling a
small squad of men to launch the assault against Sr| the next morning. 264
Lieutenant Lemal who was at the Ivanica meeting was assigned the task of
leading a second squad from his command post at Strin~jera in the assault
against Sr|.265 These squads were to have the support of two T-55 tanks as well
as the various artillery batteries.266
93. Captain Pepi} was at his unit on the evening of 5 December 1991 when he
received an order from his commander, Lieutenant-Colonel Stamenov,
commander of the 107 OAG, to go to the observation point at @arkovica by 0600
hours on the following morning. Captain Pepi} was ordered to lend fire support to
the 3/472 mtbr in taking control of the Sr| feature. For this purpose he would be
resubordinated to Captain Kova~evi}.267 The observation post on @arkovica
was not always manned by members of Captain Pepi}’s battery – it was only
when an attack was expected or an operation was to be launched. 268 It is
Captain Pepi}’s evidence that his commander, Lieutenant-Colonel Stamenov,
had attended the customary daily briefing of the command of the
263LieutenantLemal,T736. 264 LieutenantPesić,T7897. 265 LieutenantLemal,T7368-7369. 266
Lieutenant-ColonelStojanovi},T7800;7849-
7853;CaptainNe{i},T8166;LieutenantLemal,T7369;Lieutenant
Pesić, T 7897. 267 CaptainPepić,T7481-7482.
Case No IT-01-42-T
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31 January 2005
9 VPS in Kupari and that it was here that he had received the information about
the attack, which he had subsequently conveyed to Captain Pepi}. 269
94. Additional preparations for the attack were made during the night. During
the Ivanica meeting, Lieutenant Lemal had requested equipment to support the
mission, including flak jackets, plastic explosives and grenades. This was
delivered to his position at Strin~ijera by Admiral Joki}’s Chief of Staff, Warship-
Captain Zec, sometime before midnight,270 evidence which offers yet further
confirmation of the direct involvement of the staff of the command of the 9 VPS,
especially the Chief of Staff. Similarly, Lieutenant-Colonel Stojanovi} had
requested certain equipment to enable Lieutenant Pesi} to carry out his assigned
task in the attack on Sr|. During the night Lieutenant-Colonel Stojanovi} was
contacted by phone and asked to report to @arkovica, where he picked up the
equipment he had requested.271
95. Admiral Joki} testified when recalled in rebuttal that on 5 December 1991,
after the negotiations in Cavtat were completed, he reported to the 2 OG in
Trebinje where he informed the Accused about the agreement reached with the
Croatian authorities.272 On his evidence, the Accused then issued an order for
a formal ceasefire to take effect on 6 December 1991 at 1200 hours. 273 Admiral
Joki} informed Warship-Captain Zec by telephone and instructed him to order the
subordinate units to respect the ceasefire. 274 There is, however, no other
evidence and no written record or message in evidence confirming that such an
order was actually issued by the Accused on 5 December 1991. Given that the
basis for the order was a ceasefire agreement yet to be concluded, it would be
strange for such a finite order to be issued. The probabilities are that the
Accused indicated he would be prepared to issue an order for such a ceasefire if
an agreement was concluded and that Admiral Joki} informed his senior staff of
this, whether by telephone or on his return to Kupari from Trebinje by about 1700
hours on 5 December 1991. While they are the probabilities, the Chamber is not
able to make specific findings. It will therefore include in its consideration the
possibility that on 5 December 1991, the Accused did issue an order for a
ceasefire to take effect at 1200 hours on 6 December 1991. It is to be noted,
however, that the plan for the attack was for Sr| to be taken before 1200 hours.
268 CaptainPepić,T7482. 269 CaptainPepić,T7490-7491. 270 LieutenantLemal,T7369-7370. 271
Lieutenant-ColonelStojanović,T7825.SeealsoCaptainNe{ic
́,T8167.Hewaslocatedat@arkovicaandtestified
that Lieutenant-Colonel Stojanović picked up some equipment for his troops on the evening of 5
December 1991. 272 AdmiralJoki},T8537;8565. 273 AdmiralJoki},T4040-4041;4053. 274
AdmiralJokic,T8568-8569;8582-8583.
Case No IT-01-42-T
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31 January 2005
96. While it is clear, in the Chamber’s finding, that the attack on Sr| was
planned and preparations were made on 5 December for it to commence with
first troop movements at about 0500 hours on 6 December 1991, some JNA
records and some subsequent reports appear to present a different picture. This
is that the attack was initiated by Captain Kova~evi} alone, on his own initiative,
in the early morning of 6 December 1991, in response to “provocations” by the
Croatian defenders at Sr| during the night of 5-6 December which led to
casualties, even a fatality, among Captain Kova~evi}’s troops. These records
include entries in the 9 VPS log of messages that Captain Kova~evi} had
reported provocations during the night, that he had opened fire on Sr| with
120mm mortars and that “he decided alone to do so”. 275 There is also Admiral
Joki}’s action report of 7 December 1991 in which it is said that Captain
Kova~evi} “declared that no one authorised that action and that he received
warning on 05.12.1991 from the Chief of Staff 9 VPS regarding the absolute
ceasefire...”.276 The Chamber notes that in this report, Admiral Joki} ornamented
the story even further by adding that Captain Kova~evi} acted in the general
action plan of the Attack Order of 9 November 1991, which had included the
objective of taking Sr|, an objective which had not been achieved by 6 December
1991.277 In the Chamber’s finding, these entries were contrived and false. The
reports were deliberately deceptive. The attack was not spontaneous on the part
of Captain Kova~evi} on 6 December 1991. The attack was entirely pre-planned
and coordinated on 5 December 1991 by 9 VPS staff including Warship-Captain
Zec. Any casualties to JNA units followed the commencement of the attack,
rather than preceded it, but in any event, whether or not there were casualties in
the night, the attack was planned on 5 December 1991 to occur on the morning
of 6 December 1991.
97. Questions arise whether the false reports and records were contrived after
the event, or were part of a deliberate plan put in place to provide the JNA with a
ready justification for its conduct. Some reports were made after the events,
other records appear contemporaneous, though contrived. Admiral Joki}
suggests this was part of a scheme to deceive him. For reasons given elsewhere
in this decision, the Chamber does not reject this out of hand but sees it to be an
improbable explanation. Whether or not Admiral Joki} was being deceived, the
circumstances reveal that the JNA deliberately put in place false records to
indicate that the attack was undertaken spontaneously by Captain Kova~evi} by
virtue of Croatian “provocations” during the night of 5-6 December 1991. This
required planning and coordination of some sophistication. Contrary to what is
suggested by the false records, the Chamber finds that Captain Kova~evi} was
carrying out orders, given the
275ExhibitD96,p67. 276 ExhibitD65. 277 ExhibitD65.
Case No IT-01-42-T
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31 January 2005
previous day, in making the attack. It was not his own spontaneous and ill-
considered action on the morning of 6 December 1991.
98. These matters provide further reason to reflect on the evidence of
Lieutenant-Colonel Jovanovi} that, at the meeting at Kupari on the evening of 5
December 1991, Captain Kova~evi} proposed the attack on the basis on
previous provocations by Croatian forces at Sr|. This is, of course, a different
position from that presented by the JNA records referred to above which
provided an excuse for the JNA, i.e an attack by a rogue commander— Captain
Kova~evi} whose nickname was “Rambo”—acting without authority and contrary
to orders. That position was in fact taken by the JNA, including the command of
the 2 OG, publicly and when dealing with Croatian representatives after the
attack.278 However, the evidence of Lieutenant-Colonel Jovanovi} contradicts
that account. What it does is to offer some foundation for an argument advanced
by the Defence that what occurred was in truth a plan hatched and implemented
by the 9 VPS including Admiral Joki}, without the Accused’s knowledge and
contrary to his orders. In this respect, the Chamber finds this aspect of the
evidence of Lieutenant-Colonel Jovanovi} to be no more satisfactory or
convincing than other material passages considered and rejected elsewhere in
this decision.279 The Chamber does not accept the truth of this evidence.
278ExhibitsP61,tab35;P162,p18. 279 Seeinfra,paras161-169.
Case No IT-01-42-T
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B. The attack on the Old Town on 6 December 1991 – the experience of the
residents
99. the Old Town of Dubrovnik awoke to the sound of explosions. An artillery
attack had commenced. It continued for most of the day with a brief but not
complete lull a little after 1115 hours. Especially in the afternoon, it tended to be
somewhat sporadic. Initially, the firing was mainly concentrated on, but not
confined to, the area around Mount Sr|, the prominent geographical feature of
Dubrovnik located nearly one kilometre to the north of the Old Town. There was
a Napoleonic stone fortress, a large stone cross and a communications tower at
Sr|.280
100. Zineta Ogresta, residing at Od Sigurate Street 2 in the Old Town, and Mato
Valjalo, who was staying with his father-in-law in his apartment in the Old Town
on Prijeko Street,281 both saw shells falling on the fortress at Mount Sr| around or
just after 0600 hours.282 Ivo Vla{ica, who had set out on foot from Babin Kuk
towards the Old Town around 0500 hours, was passing Boninovo at 0600 hours.
He saw Sr| on his left where “large-scale shelling had started and a great deal of
shooting”.283 The ECMM monitors, who were located at the Hotel Argentina,
less than one kilometre to the southeast of the Old Town, maintained a log sheet
of events that day.284 The first entry at 0600 hours reads as follows: “Shelling
from land and sea towards the fortress close to the TV tower (Sr|) and the
harbour commenced.” The log indicates that this shelling was still in progress at
0640 hours.285 The Chamber notes that this reference to shelling from the sea
has little other support in the evidence and if there was some initial naval
shelling, as to which no finding can be made on the evidence, it was not
maintained during the day. The substantial body of the evidence points to the use
only of JNA land based artillery. It is accepted by the Chamber, however, that
shells, inter alia, initially fell on the harbour—i.e. the port of the Old Town, as
observed by the ECMM monitors. A radio log of the SFRY maintained by one of
the ships around Dubrovnik reports strong protests from the ECMM and the
Dubrovnik Crisis Staff in relation to the shelling in the early morning hours of 6
December 1991.286 At 0612 hours it is recorded that the ECMM lodged the
following protest with Admiral Joki}: “We strongly protest against the bombing of
several parts of Dubrovnik that started at about 0600 hours on 6 December 1991
and insist on an
280ExhibitC1/1,pp6and8;ExhibitC1/2. 281 ExhibitP54,housemarkedas1. 282 ZinetaOgresta,T3464-
3465;MatoValjalo,T2000-2001. 283
IvoVla{ica,T3321.ColinKaiser,aUNESCOrepresentative,whowasstayingintheOldTownattheInstitut
efor
the Protection of Cultural Heritage opposite the Dominican Monastery, also testified that, initially,
the explosions appeared to be coming from the direction of Mount Sr|. Colin Kaiser, T 2430-2432.
Ivo Grbi} who lived at Od Puca 16 in the Old Town, having been awoken at 05:50 hours stole a
glance from his window towards Mount Sr| where he observed “constant explosions and thick
smoke rising”. Ivo Grbi}, T 1357-1359.
284 ExhibitP61,tab30. 285 ExhibitP61,tab30. 286 ExhibitP162,pp10-11.
Well before sunrise, at around 0550 hours on the morning of 6 December 1991,
residents of
Case No IT-01-42-T
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31 January 2005
immediate cessation of fire.” A similar protest from the Dubrovnik Crisis Staff is
reflected in the next entry and reads as follows: “We strongly protest against the
unprovoked strong artillery fire at 0550 hours this morning from the Strin~jera
and Dubrave areas of the Sr| feature, and tank and mortar fire on Dubrovnik.” 287
101. There were several people in Nikola Jovi}’s shop at Miha Pracata 11 288,
which had opened for business as usual that morning around 0600 hours, by the
time the shells started falling on the Old Town. 289 Nikola Jovi} described the
scene in his shop that morning:
The first shells that resounded nearby, we weren’t even aware that those had fallen on the Old
Town because we were inside the shop working, but the sounds of firing got closer and closer. So
people who kept coming in were stunned and told us that shells had begun to fall all over the
Stradun, the fountain, and St. Blaise Church. And then the shooting kept inching closer and
closer to us, and it kept growing in intensity. So at one point, when the attack was the heaviest,
there would be five or six shells landing at the same time all over the Old Town, so that the whole
town had been under attack, the Old Town.290
Ivo Vla{ica, from the vantage point of his shop on Od Puca street in the Old
Town, first saw a shell landing on the Old Town between 0630 and 0700 hours
on the morning of 6 December.291 Witness A, who was sheltering in the bathroom
of his apartment in the Old Town292 at the time, testified that the shells started to
fall “right around the building itself” from 0600 hours onwards. He testified that:
“From 0600 o’clock practically every second, every other second, a shell would
fall in various places within the old walls.”293 The Chamber regards this
description of the frequency of the shelling as impressionistic rather than
accurate. From the windows in his attic, which looked out onto Stradun, 294
Witness A saw construction material falling from the roofs and buildings on the
Stradun.295 He described the scene that day as a kind of hell:
The explosions were terrible. One followed another. The buildings were shaking as if there was
an earthquake going on. There was smoke everywhere. There was dust everywhere. There were
these blazing lights coming in through the window. To put it quite simply, it was hell. 296
At 0710 hours a shell exploded in the attic of Ivo Grbi}’s house at Od Puca 16 in
the Old Town. A further shell at 0720 hours caused the attic to catch alight. 297
287ExhibitP162,pp10-11. 288 NikolaJovi},T2926. 289 NikolaJovi},T2932-2933. 290 NikolaJovi},T2934-
2935. 291 IvoVla{ica,T3310;3321. 292 WitnessA,T3624-3626. 293 WitnessA,T3626-3627. 294
WitnessA,T3625. 295 WitnessA,T3627. 296 WitnessA,T3627. 297 IvoGrbi},T1360-1361.
Case No IT-01-42-T
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102. The ECMM monitors, located in Hotel Argentina, recorded their first sighting
of impacts in the Old Town at 0720 hours. At 0725 hours it is written: “Five
impacts in the Old City close to and in the harbour area. Constant artillery and
mortar shelling in progress. More impacts in the Old Town”. Then at 0732 hours:
“Minimum 10 – 11 impacts in the old city so far.”298 The Chamber notes that
references in the ECMM log to the Old City are to what the Chamber refers to as
the Old Town.
103. As the protests and other evidence records, some shelling occurred on
residential areas of Dubrovnik, including the Old Town and on the port of the Old
Town, virtually from the outset of the attack, notwithstanding an initial primary
concentration on Sr|. However, the focus of the attack came to shift from Mount
Sr| to the wider city of Dubrovnik, including the Old Town. It is difficult from the
evidence of those in Dubrovnik to pinpoint with precision when this shift of focus
occurred. As will be mentioned later, other evidence discloses this shift of focus
to have occurred at about 0800 hours.
104. At 0800 hours a shell landed in the street directly outside Nikola Jovi}’s
shop in the Old Town on Miha Pracata street: “There was a bang and the door
opened wide. Shrapnel was flying around the shop. The till was shattered and so
was the door. There was a lot of dust in the air and for a while we didn’t know
where we were.”299 Nikola Jovi} described the fire he saw when the shell
landed:
It’s a conflagration. I’m not sure how to say it. When a shell falls – I was there, and I looked on.
It’s a flash. It’s difficult to describe what it feels like when something like that is happening nearby.
You just can’t believe it. You don’t know what to do. It’s a huge flash, and then there’s a powerful
explosion, and then there’s a lot of dust in the air suddenly and smoke. So the whole thing was
quite horrifying.300
The entry in the ECMM log sheet at 0845 hours, after recording the initial impacts
in the Old Town reads: “Up till now continuous shelling. Several (rounds) impacts
fairly close to hotel. Broken windows etc.”301
105. A compilation of video footage from some 15 domestic and foreign
photographers of the events of 6 December 1991 in Dubrovnik was compiled by
Mr Beni}302 and admitted as an exhibit in this case.303 Some of the film clips from
that day are date stamped and others are time stamped. The impression given is
that the editor has sought to maintain chronological order in presenting events,
however, there is no guarantee that this was in fact achieved. The video shows
military
298ExhibitP61,tab30. 299 NikolaJovi},T2936-2937. 300 NikolaJovi},T2938. 301 Exhibit P61, tab 30.
302IvoGrbi},T1422-1423.MrBeni}wasajournalistfromtheDubrovnikTelevision.
Case No IT-01-42-T
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31 January 2005
activity, including artillery fire, on and around Sr| between at least 0648 and 0713
hours. Sometime between 0705 hours and 0713 hours that morning, the
Dubrovnik defence warning siren sounded.304 The two subsequent clips, neither
of which are time-stamped and which bear the logo “SAR”, show smoke coming
from the Old Town and an explosion in the Old Town (in the vicinity of the
Dominican monastery).305 The first time-stamped clip showing smoke coming
from the Old Town and recording the sounds of explosions were recorded at
0747 hours.306
106. The Chamber notes that while the evidence varies in its detail and as to
times, that does not indicate it is unreliable or necessarily conflicting. Witnesses
giving evidence of these events were necessarily seeking to remember their
observations made over 13 years earlier. Some faults of recollection were
undoubtedly due to this lapse of time. Perhaps more significantly, the original
observations were made during a significant artillery attack. The conditions were
naturally alarming to those exposed to this experience. It is clear that, for the
most part, the witnesses sought cover during the attack. None of them in
Dubrovnik exposed themselves at good vantage points so as to have a broad
overview. Rather they made hasty occasional observations during the attack, so
that their observations were intermittent and tended to be limited to a confined
locality. The evidence of ECMM monitors suggests that they felt obliged to take
shelter many times during the day so that their recorded observations are by no
means a complete record of events; further their observations were made from
their hotel which was on the seafront, nearly a kilometre to the southeast of the
Old Town and not from a high vantage point.
107. The precise pattern of the shelling and the details of its ebbs and flows on 6
December 1991 are again, imprecise. As mentioned above, the Chamber has
had recourse to the ECMM log sheet307 which, despite the matters just
mentioned, offers a useful account giving some indication of the frequency and
intensity of the explosions throughout the day. The Chamber accepts from this
log and other evidence308 that the most intense periods of shelling occurred in the
morning hours, between 0900-0930 and about 1100 hours. The relevant entries
in the ECMM log read as follows:
0930 – 0945: Shelling of the Old Town intensified. Main area of impacts seems to be TOWN
HALL and PLAZZA. Absolutely white smoke after impacts. Parts of unknown rocket which landed
outside hotel main entrance were
brought down approx 30 min ago
303 ExhibitP66. 304 Thesirencanbeheardclearlyinthecliptime-
stamped0713hours,butnotinthepreviouscliptime-stamped0705
hours. See Exhibit P66 at 31.01 minutes. See also, Exhibit D108. 305
ExhibitP66at31.14and31.16minutes. 306 ExhibitP66at31.20minutes. 307 ExhibitP61,tab30. 308 Exhibit
P164, a Report on enemy combat operations on 5 and 6 December 1991 by the Defence
command of
Dubrovnik, states that the “fiercest fighting took place between 0900 and 1000 hours when the
enemy directed all artillery pieces to fire on the old and new towns, which inflicted serious
damage on the old town.”
Case No IT-01-42-T
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31 January 2005
0945 – 1000: 1010: 1015 – 1045: 1045 – 1100: 1100:
1119:
Between 10 and 15 heavy explosions heard pr minute
6 impacts on LOKRUM
Shelling continues of all areas of DUBROVNIK [...].
Frequency is now 15 heavy shells pr minute with some minutes interval
Now it is really burning in the old town. Frequency is slowing down again.
From this time frequency dropped considerably.
As noted by the ECMM monitors, the Chamber finds that a considerable drop in
the frequency of the shelling occurred late-morning. Some evidence suggests
this could have occurred a little after 1100 hours, 309 at which time the frequency
was noted by the ECMM monitors to be slowing. However, they did precisely
identify a considerable drop in frequency at 1119 hours. It is not the case that the
shelling ever ceased entirely, but the frequency of shots slowed considerably.
This lull was not long-lived, however, and shelling picked up again, well before
1200 hours, and continued though more sporadically.
108. It was at around 1130 hours that Nikola Jovi} and his sister left the shop in
Miha Pracata street and walked through the Od Puca street, through Stradun, out
of the Old Town through the Pile Gate, towards Boninovo and home to Gru`,
which indicates that the intensity of the shelling at this time had considerably
eased.310 It continued, however, as described by the visual and oral evidence.
For example, the building where Lucijano Peko 311 was staying on Prijeko Street
was hit sometime between 1100 and 1200 hours on 6 December. As she
described it, the building shook, like it was an earthquake. 312 She and the other
residents felt totally unprotected, and, around 1300 hours when the shelling was
a little less intense, they all moved to a neighbouring building which could provide
a little more protection.313 Other residents of the Old Town also suffered direct
hits during this time. The roof of Witness A’s building was hit by a projectile
sometime between 1200 and 1300 hours. 314 When he later had a chance to
inspect the damage, Witness A discovered that two projectiles of different
calibres had hit the roof. He found the stabiliser fin of one of the mortar shells,
120mm calibre, on the sofa right below the point of damage. 315 The ECMM log
records
309 Colin Kaiser testified that around 1100 hours the shelling decreased to almost nothing,
although shells were still falling periodically, T 2433.
310 NikolaJovi},T2948. 311
LucijanaPekohadmovedwithherfamilyon7October1991,fromanareaofgreaterDubronvikcalledSvetiJ
akov,
to stay with a friend in her house on Prijeko Street in the Old Town, T 1841-1843. The family had
made the decision
to move because it was felt that the Old Town was protected and would not come under attack, T
1844. 312 LucijanaPeko,T1848-1849. 313 LucijanaPeko,T1849. 314 WitnessA,T3627-3628. 315
WitnessA,T3633-3634.
Case No IT-01-42-T
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31 January 2005
sporadic shelling prior to 1200 hours which appeared to be in the direction of the
Old Town. The monitors also recorded artillery fire.
109. Returning to the compilation video of the attack, it demonstrates that by
0934 hours, many boats in the harbour of the Old Town had been hit and were
billowing black smoke into the atmosphere above the Old Town. 316 These
appeared to be the larger vessels. A clip, without date or time-stamp, which
appears later in the chronology of the video, shows a car driving down Stradun.
The Chamber is of the view that this clip is out of time order in the video and
should be placed earlier because in this clip there is a noticeable lack of damage
and debris on the Stradun. This indicates it was filmed earlier in the day, as
confirmed by other evidence, e.g. the testimony of Witness A who described
damage to the Stradun from 0600 hours onwards. 317 The video also contains a
clip, time-stamped 1243 hours, which indicates that by this time the Old Town
had sustained considerable damage. Subject to these comments, in the
Chamber’s finding, the video provides an intermittent overview of the Old Town
during the attack and clearly reveals fires burning fiercely in many of its
locales.318
110. One witness who was present in the Old Town that day puts the final
cessation of shelling as early as around 1500 hours. 319 However, the ECMM
log records an entry “No shelling for 20 minutes”, at 1630 hours, which is
followed by a record of at least four explosions (position identified) after which it
is noted that the ceasefire appears to be holding, but some shelling occurring
“NW of Hotel Argentina”. There were other reports of sporadic shelling into the
early evening.320 At 1915 hours, the entry in the ECMM log indicates that
there is nothing to report and that there has been “no shelling to the best of our
knowledge”. The entry at 1925 hours records the end of the general emergency
alert over Dubrovnik.321 The Chamber finds that shelling decreased noticeably
from around 1500 hours and had substantially ceased by a little after 1630 hours,
i.e. the shelling of Dubrovnik, including the Old Town, had continued for over ten
and a half hours on 6 December 1991.
111. It must be noted that while some of the evidence specifically dealt with
shelling in the Old Town, generally the witnesses did not distinguish between
shelling which fell on the Old Town and shelling on the other areas of Dubrovnik.
The attack was certainly not confined to the Old Town. Indeed, there was
particularly heavy shelling to areas to the northwest of the Old Town and in the
316ExhibitP66(at31:37and31:40). 317 Seeforexample,WitnessA,T3627. 318 ExhibitP66(at32:13). 319
ColinKaiser,T2432-2435. 320 WitnessA,T3633. 321 Seegenerally,ExhibitP61,tab30.
Case No IT-01-42-T
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31 January 2005
vicinity of hotels both to the northwest and southeast of the Old Town. Like the
Old Town, generally speaking, these were all residential areas.
112. The attack on Dubrovnik, including the Old Town, on 6 December 1991
inevitably gave rise to civilian casualties. While the Chamber heard evidence of
many more victims of the shelling that day, the Third Amended Indictment
charges the Accused only in relation to two deaths and two victims of serious
injuries, both alleged to have occurred in the Old Town. The evidence relating to
these particular victims is discussed in greater detail later in this decision. 322
It may be safely assumed, however, that the strength of the old stone
buildings in the old Town, and the use of designated shelter areas by many of the
residents, did much to minimise the loss of life and injuries in the Old Town that
day. Civilian, religious and cultural property, in particular in the Old Town, also
suffered heavy damage as a result of the attack. The Chamber discusses the
details of the evidence relating to the damage to property later in this decision. 323
322 323
See infra, paras 243-259 ; 264-276. See infra, paras 313-330.
Case No IT-01-42-T
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31 January 2005
C. The attack on the Old Town of Dubrovnik on 6 December 1991 - the
attackers
113. The Chamber finds that on 6 December 1991, units of the 9 VPS of the JNA
again attempted to take Mount Sr|, which was the dominant feature and the one
remaining position held by Croatian forces on the heights above Dubrovnik. This
attempt commenced between 0500 and 0600 hours under cover of darkness. It
was undertaken by two small infantry units of the 3/472 mtbr. One under the
command of Lieutenant Lemal approached Sr| from his nearby command post at
Strincijera. The other under the command of Lieutenant Pe{i} approached Sr|
from the village of Bosanka. Each had close tank support. Less than 40 soldiers
made the attack. Even so the defending Croatian forces on Sr| were heavily
outnumbered.
114. A little before 0600 hours, more than half an hour before sunrise, JNA units
commenced a mortar and other artillery barrage on Sr| with the objectives of
damaging the Croatian defensive positions, pinning down the defenders to
enable the attacking forces to approach, and exploding some of the defensive
mines which had been laid by the Croatian forces. The artillery barrage no doubt
made clear the JNA intentions and, as the two attacking units approached Sr|,
they came under defensive fire from Sr|. In time Croatian 82mm mortar and
machine-gun fire was commenced from the city of Dubrovnik against the
attacking troops. As sources of the Croatian fire from Dubrovnik were identified,
some JNA mortar and other artillery fire was directed against them. The JNA
attacking troops suffered casualties, including one death, and one of the
supporting tanks suffered damage and was withdrawn to a distance from which it
could continue to fire at the Croatian defensive positions while being itself safe
from further attack.
115. By about 0800 hours, the attacking forces had approached sufficiently close
to Sr| to be themselves threatened by the JNA artillery barrage. The barrage of
Sr| was called off so that the troops could continue to advance. They were,
however, still under mortar attack from Croatian positions in Dubrovnik as well as
defensive fire from Sr|. While there had been some shelling of Dubrovnik,
including the Old Town, virtually from the commencement of fire by JNA
batteries, from the time of the cessation of the JNA artillery barrage on Sr|, at
about 0800 hours, the full force of the active JNA mortars and other artillery,
including Maljutka rockets or missiles, appears to have been directed at
Dubrovnik, including the Old Town. As the evidence of those in Dubrovnik, which
was reviewed earlier, indicates the attack on Dubrovnik grew in intensity reaching
its maximum force between approximately 0900-0930 and 1100 hours. This
appears to have coincided with the period when the efforts of the attacking JNA
troops on Sr| to dislodge the Croatian defenders were at their most desparate.
116. The JNA plan was to take Sr| quickly, certainly before 1200 hours, when a
ceasefire was anticipated to come into force in the area. The capitulation of the
Croatian defenders of Sr| during
Case No IT-01-42-T
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31 January 2005
the morning appears to have been anticipated by Captain Kova~evi} who had the
immediate command of the attacking troops and who coordinated the artillery
and ground forces from @arkovica, a position which gave him an excellent
overview of both Sr| and Dubrovnik, especially the Old Town.
117. There was no capitulation by the Croatian defenders. The close fighting at
Sr| was desperate. While precise times cannot be determined on the evidence, at
one stage the defenders retreated into underground levels in the fortress and
called in Croatian mortar fire on JNA forces surrounding the fortress. Attempts to
dislodge or overcome the defenders were unsuccessful. At a time after 1400
hours, the JNA troops were permitted to withdraw from Sr|. Withdrawal was also
a difficult process and it was not until after 1500 hours that this was completed.
118. The JNA plan to take Sr| had failed. Casualties had been suffered, with five
men killed and seven wounded among the troops of the 3/472 mtbr. JNA artillery
continued to fire on Dubrovnik until after 1630 hours, although with noticeably
reduced intensity after 1500 hours. Dubrovnik, including the Old Town, had been
under artillery attack for over ten and a half hours. The experience for those in
Dubrovnik has been briefly outlined earlier in this decision. Its effect will be dealt
with in more detail later.
119. The Chamber now turns to consider in greater detail the evidence dealing
with these events. This aspect of the evidence is particularly characterised by
conflict and confusion. No doubt the many years that have passed since these
events have affected the accuracy and reliability of the memories of witnesses.
The Chamber is persuaded, however, that some evidence it has heard, in
particular concerning the JNA, was not truthful. Further, the Chamber is satisfied
that a number of contemporary reports and records are misleading, deliberately
so, and do not reflect the truth. In the face of these difficulties, it is not possible
for the Chamber to be satisfied where the truth lies in respect of a number of
issues. Some matters, therefore, have had to be left without findings.
Case No IT-01-42-T
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31 January 2005
D. The events of 6 December 1991
120. The Chamber has already set out in summary form the actual course of the
attack on Sr|. What follows is an outline of the more important detailed evidence
about the attack and the findings of the Chamber. Where a distinction between
these is intended, it should be apparent from the text.
121. At about 0500 hours on the morning of 6 December 1991, under cover of
darkness, Lieutenant Lemal leading 20-25 men set out for Sr| from Strinj~era, 324
and Lieutenant Pesi} with 12-14 troops set out for Sr| from Bosanka. 325
122. At around 0600 hours, the troops advancing on Sr| observed that JNA ZIS
cannons opened fire at the lower fortifications around Sr| where Croatian snipers
had dug in,326 and in addition, a mortar barrage was directed at Sr|. 327 As
Lieutenant Pesi} and his group advanced uphill towards Sr|, they had to cross
rocky and exposed terrain which afforded no natural shelter and no opportunity
for camouflage.328 About 400 or 500 metres from the Sr| feature Lieutenant
Pesi} and his soldiers came under fire. This was from two 82mm mortars which
he describes as firing from the area of the tennis courts in Babin Kuk. 329 The T-
55 tank supporting Lieutenant Pe{i}’s group at this point also came under lateral
fire from the direction of Dubrovnik.330 In addition to attracting fire from
positions in the wider Dubrovnik area, they were also shot at from Sr| as they
continued to advance.331 The T-55 tank accompanying the group fired three or
four shells at the Sr| feature during the advance. 332 The Chamber notes that the
references to fire from the direction of Dubrovnik, or the wider Dubrovnik, are not
evidence of firing from the Old Town. The Chamber also observes that the firing
from the area of tennis courts at Babin Kuk is an apparent misdescription; other
evidence indicates this to have been from the area of tennis courts at Hotel
Libertas. Both the Hotel Libertas and Babin Kuk are well to the northwest of the
Old Town.
123. Approaching 0800 hours, Lieutenant Lemal and his men were within 600
metres of Sr|. Lieutenant Lemal fired a rocket to signal that JNA artillery fire
against Sr| should cease for the
324 LieutenantLemal,T7368-7369;T7371. 325 LieutenantPesić,T7897-7899;LieutenantLemal,T7371.
326
LieutenantLemal,T7371.Accordingtohim,theseZIScannonswouldhavebeenlocatedintheVlasticasec
toron
6 December 1991, T 7349. Admiral Joki} said the ZIS cannons were near U{koplje, T 4020-4021.
Lieutenant Pesić testified that the attack commenced at around 0600 hours with firing from
U{koplje, T 7898. Firing at targets on the slopes of Sr| can clearly be seen in the video
compilation between 0648 and 0651 hours on the morning of 6 December 1991. See Exhibit P66
(at 30:40-30:52).
327 LieutenantLemal,T7371,7413. 328 LieutenantPesić,T7902. 329 LieutenantPesic
́,T7898.Lieutenant-ColonelStojanovi}testifiedthatLieutenantPesi}’sgroupwasfireduponfrom
the Dubrovnik area with anti-aircraft guns as they were moving towards Sr|, T 7827. 330
LieutenantPesić,T7901-7902. 331 LieutenantPesić,T7912-7915. 332 LieutenantPesić,T7913.
Case No IT-01-42-T
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31 January 2005
safety of the infantry troops.333 Lieutenant Lemal testified that one of his soldiers
was killed on the approach to Sr|,334 and a supporting tank was hit on the road
between Strin~jera and Sr|.335 The tank was ordered to retreat to a position
where it could not be fired at, but from which it could still support the troops. 336
124. Lieutenant Pesi}’s unit was the first to arrive at the Sr| feature just before
0800 hours.337 He requested via radio that JNA artillery fire on Sr| cease to allow
the assault group to continue with the attack.338 Lieutenant Pesi} and his men
engaged in hand-to-hand combat with the Croatian soldiers remaining in the
fortress.339The Croatian defenders eventually retreated into what was described
as the system of tunnels underlying the fortress at Sr|. 340 Lieutenant Pesi} called
on the Croatian defenders to surrender but they fought back with grenades. 341
After about 30 minutes of fighting, Lieutenant Pesi} was wounded by a
grenade. He was initially relieved by Tuka Miralem, a junior sergeant, and then
by Captain Stojanovi}.342 Lieutenant Lemal’s squad arrived at Sr| after
Lieutenant Pesi}’s to find that the Croatian defenders had already retreated
underground.343Once the JNA had thus seized control of the Sr| plateau, it came
under fierce mortar attack from Croatian forces. 344 Lieutenant Lemal’s
evidence was that the mortar fire originated in the area of Lapad, which is also
well to the northwest of the Old Town. Initially the firing was moderate, but it soon
increased in intensity.345
125. When their troops first came under attack, the leaders of both assault
groups requested artillery support from the commander, Captain Kova~evi} at
@arkovica, in line with the battle plan that had been conveyed to them the night
before. Lieutenant Pesi} requested his superior to open fire at the positions that
constituted the greatest threat.346 The battalion commander, Captain
Kova~evi}, responded that the fire group from the U{koplje feature could not fire
on the area of Babin Kuk as it was out of range. 347 Similarly, Lieutenant Lemal
had contacted Captain Kova~evi} by radio when he had discovered the source of
the firing, seeking his assistance in neutralising the
333 Lieutenant-Lemal,T7371-7372;7413. 334 LieutenantLemal,T7414. 335 LieutenantLemal,T7372. 336
LieutenantLemal,T7372.
337 LieutenantPesić,T7912-7915. 338 LieutenantPesić,T7912-7915. 339 LieutenantPesić,T7912-
7915. 340 LieutenantPesić,T7912-7915. 341 LieutenantPesić,T7912-7915. 342 LieutenantPesic
́,T7912-7915. 343 LieutenantLemal,T7413-7414. 344 LieutenantLemal,T7373-7374. 345
LieutenantLemal,T7374-7375. 346 LieutenantPesić,T7902.
347 LieutenantPesić,T7902-7903. Case No IT-01-42-T
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31 January 2005
fire, as Lieutenant Lemal’s unit was incurring losses. 348 Captain Stojanovi},
who replaced the injured Lieutenant Pesi}, also requested artillery support to
neutralise lethal fire on Sr|. His evidence was that this support was never
provided.349
126. As previously indicated, the infantry and artillery actions that day were
overseen and coordinated by the commander of the 3/472 mtbr Captain
Kova~evic, who was located at his observation post on @arkovica, a small
plateau350 about two kilometres to the southeast of the Old Town, with views to
the northwest down to the Old Town and up to the feature of Sr|. In addition to
Captain Kova~evi}, the following senior officers were present at @arkovica that
day, assisting in various capacities in the attack. Captain Jovica Ne{i},
commander of the anti-armour company of the 3/472 mtbr 351 whose unit was
positioned at @arkovica on 6 December.352 Captain Pepi}, who was serving
with the 107 OAG as commander of the 130mm battery. 353 On 6 December,
his unit’s battery of four 130mm howitzers was located at the îlipi airport. 354
He was to relay firing orders from Captain Kova~evi} and give firing
corrections.355 There were also smaller calibre howitzers at îlipi. 356
Captain Drljan, a staff officer from the 9 VPS at Kupari arrived at @arkovica
he thought at around 0800 hours and stayed for about an hour, 357 although he
returned later in the afternoon.358 Significantly, in the Chamber’s finding, Warship-
Captain Zec, Chief of Staff of Admiral Joki}, arrived, it is said, at sometime
around 0800 hours, although apparently later than Captain Drljan, and remained
throughout the day’s action.359 Other senior 9 VPS staff officers were also at
@arkovica at times during the day.
127. Captain Ne{i}’s anti-armour company at @arkovica 360 was equipped from
September 1991 with six anti-armour recoilless cannons (82mm) and six anti-
armour 9K11 self-guided missile launchers (Maljutkas). 361 There was also one
mortar and a 76mm ZIS cannon.362 There was also at least one tank but the
evidence does not enable a finding whether this remained at @arkovica on 6
December 1991 or was used in the assault on Sr|. An anti-aircraft weapon was
also mentioned by Witness B but the Chamber cannot accept it to be established
whether this was in position on
348 LieutenantLemal,T7375-7376. 349 Lieutenant-ColonelStojanović,T7831-832. 350 CaptainPepic
́,T7486-7489. 351 CaptainNe{ić,T8150-8151. 352 CaptainNe{i},T8168;LieutenantLemal,T7348. 353
CaptainPepi},T7471-7474. 354 CaptainPepić,T7473-475. 355 CaptainPepi},T7514-7518. 356
AdmiralJoki},T4063-4064. 357 CaptainDrljan,T7698-701. 358 CaptainDrljan,T7718. 359 Captain Pepi},
T 7483-7484. 360 CaptainPepic
́,T7486.HetestifiedthattherewereMaljutkasandrecoillessgunson@arkovicathatday,T7532. 361
CaptainNe{i},T8152. 362 CaptainPepi},T7486.
Case No IT-01-42-T
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31 January 2005
6 December 1991.363 To the northern side of the small plateau of @arkovica,
directed more to Sr| and Bosanka, were the recoilless guns. 364 It is Captain
Pepi}’s evidence that three or four of them were mounted on the wall surrounding
the @arkovica plateau and one had been placed behind the wall directed to fire
through an opening therein. Located to the southern side and directed more
towards the city of Dubrovnik were the Maljutka launchers. 365 Subject to the
issue of range, which is considered later, both the recoilless cannons and the
Maljutkas could target Sr| and the nearer residential areas of Dubrovnik,
including the Old Town. Both Captain Ne{i} and Captain Pepi} were operating
from an observation post on the southern side of the plateau close to the
Maljutka launchers.366
128. It was the evidence of Captain Ne{i} that the attack against Sr| commenced
at around 0500 hours367 but it is not expressly stated whether he meant the firing
upon Sr| from @arkovica or the commencement of the infantry approach towards
Sr|. The latter is consistent with the other evidence and is the finding of the
Chamber. When firing did commence from @arkovica, there was an attempt at
countering fire from Dubrovnik. A few shells (three or four) landed near
@arkovica although none hit the JNA position. 368 This was the only incoming
Croatian shelling which was observed in the vicinity of @arkovica that day. 369
Shortly thereafter, the Croatian firing positions began to concentrate their
firepower on Sr|,370 presumably in an attempt to repel the JNA’s infantry attack on
the feature. As the JNA troops attacking Sr| came under increasing fire, it is the
evidence of some witnesses who were at @arkovica that the weapons at
@arkovica were used to target Croatian firing positions in and around Dubrovnik
in an attempt to neutralise them.371 The Chamber notes that this apparently
includes the recoilless cannon.372 Later, the Chamber records its findings
concerning these aspects of the evidence.373 Captain Ne{i}’s evidence is that
several times during the day Captain Kova~evi} ordered him to find the sources
of the firing that was being directed at Sr| and neutralise those positions. 374
Throughout the morning, until at least midday, there was no order to stop
the firing.375 Captain Ne{i} denied, however, that there was ever an order
issued that day to target the Old Town. 376 It was the evidence of Captain Ne{i}
that he could not
363 WitnessB,T5025-5026;ExhibitP154. 364 CaptainPepic
́,T7487;T7518.SeealsoExhibitD103;ExhibitP154;WitnessB,T5025-026. 365 CaptainPepić,T7487-
7489;ExhibitD103. 366 CaptainPepić,T7486-7489,ExhibitD103;WitnessB,T5025-5026. 367
CaptainNe{ić,T8168,T8243. 368 WitnessB,T5040;CaptainNe{i},T8168. 369 WitnessB,T5041. 370
CaptainNe{ić,T8168. 371 CaptainNe{ić,T8184. 372 CaptainNe{ić,T8238. 373 Seeinfra,paras182-193.
374 CaptainNe{ić,T8184. 375 CaptainNe{i},T8184-8185. 376 CaptainNe{ić,T8240.
Case No IT-01-42-T
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31 January 2005
recall how many rounds of ammunition were fired that day. 377 This was his
response to cross- examination on this issue. There is in evidence, however, a
report that he prepared on 8 December 1991. This purports to detail the
expenditure of ammunition and the targets engaged on 6 December 1991 from
@arkovica.378 The report reads in relevant part:
During the action on Sr|, I had the task of securing the left wing of the battalion and act against
the located targets on the left (southern) slopes of Sr| and the targets in the town which would
potentially pose as a threat to actions of the units on Sr|. During the carrying out of the task, I had
used the following amount of ammunition, and on the following targets:
Rocket 9K11379 11 pieces
Fortress on Lokrum 1 piece Bunker in the pine forest 1 piece The forest at Sr| 2 pieces
Crossroads (underpass) entrance into Dubrovnik 3 pieces The window on the right tower (PAT
20mm or PAM) 1 piece Towards the hotel Libertas 1 piece The plateau left above the hospital 2
pieces
RKZ M72380 26 pieces BST
The bunker in the pine forest 2 pieces The basement of the building left of the bunker 1 piece The
corner at the entrance to the Old Town (left one) 3 pieces (The barrel of the cannon noticed 7
days ago) The fish market at the entrance to the Old Town 4 pieces (The carrying in and out of
crates was noticed) The forest above the road towards Sr| 5 pieces The tunnel near the
Lovrijenac fortress 5 pieces The entrance to the right fortress 2 pieces (the rocket entered the
window) Towards the plateau right of Libertas 2 pieces (an activity of 4 MB/mortars/noticed) The
underpass at the entrance to Dubrovnik 2 pieces
129. reveals that firing on the city of Dubrovnik, as distinct from Sr|, was
expressly contemplated as a necessary function of the artillery support in the
battle plan for the assault on Sr|. The Chamber observes that while the phrase
“targets in the town” does not appear to mean the Old Town, as distinct from the
rest of Dubrovnik residential area, neither is the Old Town excluded from the
scope of the targets. Further, the Chamber notes that the task of the anti-armour
company at @arkovica was to target potential threats to the JNA units on Sr|,
both threats from the southern slopes of Sr| and from the town. In carrying out
this order, the recoilless cannons RKZ M72 are recorded in Captain Ne{i}’s report
as having fired nearly two and a half times the number of shots as the Maljutka
9K11 rockets. Many of the targets identified for the recoilless cannons and the
Maljutkas in this effort were in or beyond the Old Town.
377 CaptainNe{i},T8235. 378 ExhibitD113.CaptainNe{ić,T8188-8189.
The statement of the task assigned to the anti-armour company should not pass
unnoticed. It
Case No IT-01-42-T
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31 January 2005
130. The Chamber heard expert evidence that the recoilless cannons had not
sufficient range to target the Old Town from @arkovica. 381 If that was correct it
would obviously call into question the honesty and reliability of the report of
Captain Ne{i}. A number of factors persuade the Chamber to find, as it does, that
the recoilless cannons at @arkovica could target at least parts of the Old Town.
First, the Croatian forces had no tanks or other conventional armour in
Dubrovnik. From @arkovica, there were, therefore, only three potential targets,
Bosanka, Sr| and Dubrovnik (including the Old Town). Bosanka was occupied by
the JNA. Sr| is approximately the same distance from @arkovica as the far
(west-northwest) side of the Old Town. In the Chamber’s finding, therefore, the
only reason for siteing a battery of six recoilless guns in @arkovica was to be
able to target Sr| and Dubrovnik (including the Old Town). The powerful inference
is that the recoilless cannons had the range to target at least the nearer parts of
Dubrovnik. This includes the Old Town, and Sr|. Secondly, other witnesses
describe the use of recoilless cannons against targets in the Old Town that
day.382 Thirdly, the evidence of the expert on this point, while rather
emphatically stated at the outset, when he was being pressed in cross-
examination about assumptions he had made in forming his expert opinion, was
later modified and much more cautiously expressed. The Chamber was left with
the firm understanding that, at least when not being used against armour, the
effective range of the recoilless cannon was greater than he first indicated.
131. The said expert, Janko Vili~i}, first stated that the 82 mm recoilless gun was
designed as an anti-armour weapon and intended for targets up to 600 metres
and exceptionally up to 1,000 metres.383 His testimony was that the effective
range, i.e. apparently against armour, of the reactive M72 shell is 1,000
metres.384 The expert was also of the view that for any range beyond 1,000
metres the gun did not have a sight.385 However, during re-examination he
recalled that new sights had been developed for ranges up to 2,000 metres, but
he added that at this range the precision of the sight was reduced. 386 He
pointed out that the recoilless gun was an anti-armour weapon with cumulative
shells intended to pierce armour. The expert thus seems to distinguish the
effective range, within which the gun can pierce armour, from the range within
which the sight can be used. Further, according to the expert, even targets
beyond the range of the sight could be reached, but with the use of firing tables
and quadrants for effective sighting. 387 Turning to the particular
379TheChambernotesthatthisreferstotheMaljutkarockets. 380
TheChambernotesthatthisreferstotherecoillesscannons. 381
JankoVili~i}saidthatfiringwouldbepossiblebutnotthroughasight,T8428-8431. 382
WitnessB,T5037,CaptainNe{ić,T8238. 383 JankoVili~i},T8428. 384 JankoVili~i},T8429. 385
JankoVili~i},T8428. 386 JankoVili~i},T8498. 387 JankoVili~i},T8428-8429.
Case No IT-01-42-T
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circumstances of the present case, the expert testified that projectiles from the
recoilless guns deployed by the unit of Captain Ne{i} could reach targets in the
Old Town, but not using the sight.388 The near side of the Old Town is some
2,300 metres from @arkovica. In view of the expert’s testimony, the Chamber
finds that the recoilless guns positioned on @arkovica could target at least the
near areas of the Old Town and Sr|. The general tenor of the evidence indicates,
however, that the weapon was limited in its ultimate range so that it is probable
that it could not target the far side of the Old Town. Purported targets noted in
Captain Ne{i}’s report, such as Fort Lovrijenac and the plateau near Hotel
Libertas, were, in the finding of the Chamber, beyond the range of those
cannons. The Chamber would also record its finding that some purported targets
noted by Captain Ne{i} for the Maljutka rockets were beyond the range of that
weapon e.g. Hotel Libertas. The range of the Maljutka is in the vicinity of 3,000
metres,389 whereas Hotel Libertas is some 5,000 metres from @arkovica.
132. That having been said, there are other reasons for reservation about the
accuracy and reliability of Captain Ne{i}’s report of 8 December 1991. It was
prepared at a time when the Captain well knew that the shelling of the Old Town
was being “investigated” by Admiral Joki}. It was prepared for that investigation. It
is apparent from the evidence of Captain Ne{i} that there was no system in place
on 6 December 1991 for recording the number of shells or rockets fired that day,
or for recording the targets as each was fired.390 Despite this, the report
purports to identify a precise number of rockets, 11, and cannon shells, 26, which
were used, everyone of the targets that were fired on, and the number of rockets
or shells expended on each target. Further, the Chamber observes that the
targets identified in the report each had some apparent military justification. None
of the identified targets was a vessel, notwithstanding filmed evidence of Maljutka
rockets, which could only have come from @arkovica, hitting a number of
vessels in the harbour of the Old Town that morning. 391 No identified rocket
target was inside the walls of the Old Town despite the evidence of rockets
landing within the Old Town that day. The Chamber observes, in addition, that
the total number of rockets and shells reported to have been used is surprisingly
small, especially having regard to the length of the engagement that day and the
number of weapons at @arkovica. In short, the report seeks to demonstrate that
there was only a limited amount of controlled shooting, all of it at justified military
targets. Its effect is to indicate that the considerable destruction of property in the
Old Town could not have been caused by the weapons and rockets at
@arkovica. There is a considerable, varied and strong body of evidence to the
contrary. The Chamber is unable
388JankoVili~i},T8430. 389 ExhibitP184,p12. 390 CaptainNe{ić,T8245. 391
ExhibitP66(at31:48),ExhibitP78(at12.08).
Case No IT-01-42-T
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to accept the report by Captain Ne{i} of 8 December 1991 as accurate and
reliable. It was deliberately contrived.
133. By way of marked contrast to the evidence of Captain Ne{i}, there is the
evidence of Witness B, a JNA soldier at @arkovica that day, who was
responsible for carrying Maljutka rockets between the trucks and the store room
on @arkovica, or directly to the firing positions themselves. 392 His evidence is
that while the artillery attack from @arkovica initially targeted Sr|, once the JNA
infantry set out, the attack was directed towards Dubrovnik: 393 “The Old Town, the
New Town, and that island on the left-hand side” 394 i.e. Lokrum. Witness B
testified that two or three times during the day for between five and ten minutes
at a time, he was able to observe what was happening in the city of Dubrovnik
below, from a vantage point on @arkovica directly facing the Old Town. 395 He
observed shells falling on the Old Town:
I saw that the shells were falling directly into the Old Town and on the ships and on the island of
Lokrum and into the water in front of the ships. [...] What I remember most clearly is when one of
the rockets fell straight through a window, if I may call it that, in the Old Town [...] It was a window
on that Old Town, on the walls. [...] Rockets were flying over the Old Town, depending on how
good the operators where in terms of hitting their targets. 396
It was the evidence of Witness B that over 100 Maljutka missiles alone, i.e. not
including the cannons, were fired from @arkovica that day. 397 He testified that
the firing only stopped around 1500 hours on 6 December 1991, which is
consistent with the experience of those in the Old Town. 398
134. Witness B’s account describes a scene of often indiscriminate firing, with
soldiers often firing at will at targets of their choosing in Dubrovnik, including the
Old Town. He testified that no targets were identified that day 399, that the officers
on @arkovica never ordered that Maljutkas should not be fired on the Old
Town,400 that the Maljutka operators were engaging in a kind of competition,
setting themselves targets and celebrating a successful hit. 401 Witness B’s
evidence was that even those who were not trained in handling a Maljutka were
encouraged to participate in the firing, including WitnessB himself, although he
declined the offer.402 On WitnessB’s evidence, during this period, Captain
Kova~evi} remained for the most part with the Maljutka
392 WitnessB,T5037-5038;T5042. 393 WitnessB,T5037. 394 WitnessB,T5037. 395
WitnessB,T5043;ExhibitP154. 396 WitnessB,T5043-5044.
397 WitnessB,T5053. 398 WitnessB,T5052-5053. 399 WitnessB,T5046. 400 WitnessB,T5049. 401
WitnessB,T5046. 402 WitnessB,T5046;T5049-5051.
Case No IT-01-42-T
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operators, although he spent some time with the recoilless cannons. 403
Captain Kova~evi} appeared to be furious, shouting all the time. He even
fired up to ten of the Maljutka missiles himself. 404 Witness B recalled hearing
Captain Kova~evi} give orders that day, in particular it was his evidence that he
heard him say on one occasion (around 1000 or 1100 hours) “Everything should
be razed to the ground”.405 Captain Kova~evi} gave no orders about the
amount of fire that should be levelled at the area: “There was no limitation
imposed. The main thing was to keep firing.”406
135. Captain Pepi}, also stationed at his observation post on @arkovica that day,
contradicted the evidence of Witness B in a number of respects. His evidence
was that there was no indiscriminate firing, the JNA artillery fire that day was
targeted at Croatian firing positions. He outlined in some detail Croatian firing
positions that he claimed he had observed, both inside the Old Town and in the
wider city of Dubrovnik. In contrast to other evidence and the Chamber’s finding,
Captain Pepi}’s evidence is that shelling started from @arkovica after 0800
hours, although the “activity” had started earlier at 0600 hours. He first observed
targets at 0800 hours.407 In some other respects, however, his evidence has
some general consistency with the evidence of those in the Old Town. In some
respects his evidence is not consistent with that of Captain Ne{i}. Captain Pepi}
described the scene in the Old Town that day from his vantage point overlooking
it. He saw clouds of thick black smoke rising from the Old Town. He saw boats in
the harbour burning. He saw that parts of the roofs in the Old Town had caved in
or collapsed. He saw roof tiles and other debris littering the Stradun and in the
streets of the Old Town. Towards dark, when Captain Pepi} left @arkovica
(around 1600 – 1630 hours) he saw buildings in the Old Town burning, and
debris and scattered stones and tiles in the street. 408
136. Captain Drljan, who in late 1991 served as an operations officer in charge of
planning at the operations and training department of the 9 VPS, 409 also spent
some time on @arkovica that day. It was his evidence that, directly upon arriving
at the forward command post in Kupari around 0700 hours on 6 December 1991,
he received a telephone call from Warship-Captain Zec. Warship- Captain Zec
ordered Captain Drljan to convey to Captain Kova~evi}, at @arkovica, on orders
from the commander, Admiral Joki}, that he must not fire on the Old Town. 410
Captain Drljan took his time in complying with this order. He first had
breakfast, although he suggested he had done so “in
403 WitnessB,T5051. 404 WitnessB,T5051. 405 WitnessB,T5052. 406
WitnessB,T5052;inthisrespect,seealso,CaptainNegodi},T5266-5267. 407 CaptainPepić,T7542-
7545.
408 CaptainPepić,T7535-7541. 409 CaptainDrljan,T7685. 410 CaptainDrljan,T7698-7701.
Case No IT-01-42-T
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a hurry”.411 He said he arrived at @arkovica around 0800 hours. Firing was
ongoing. He found Captain Kova~evi} in a bunker, wearing a pair of headsets
and issuing orders to his units. Captain Drljan conveyed the order to Captain
Kova~evi} who gestured that he had understood. 412 Captain Drljan remained on
@arkovica for about an hour after seeing Captain Kova~evi}. 413 An element of his
evidence which the Chamber found to be surprising, and indicative of the weight
attached by both Captain Kova~evi} and Captain Drljan to this order, if there was
such order, is that while Captain Drljan was at @arkovica he observed a shell
fired at the Old Town, i.e. a clear breach of the order. Yet he did nothing about it,
either by confronting Captain Kova~evi} or reporting it to Admiral Joki} or
Warship-Captain Zec.414 His explanation was that he had complied with his
orders by delivering Warship-Captain Zec’s order, and he had no authority to do
more. He said he did not know the whereabouts of Warship-Captain Zec or
Admiral Joki}, although Warship-Captain Zec was not at @arkovica, so he did not
try to contact them.415 Neither did he make a written report. His explanation
for this is that it was not his job as he was not the duty officer. 416 The
Chamber also notes that while the evidence as to the arrival times of Captain
Drljan and Warship-Captain Zec at @arkovica that day is no doubt imprecise,
and it accepts that Warship-Captain Zec arrived later than Captain Drljan,
nevertheless they must have been at @arkovica together for some period. From
where Captain Drljan was standing he was able to see the advance of the JNA
troops towards Sr|. He observed that Sr| was coming under heavy artillery
bombardment, although he suggested that he could not identify the source of the
firing.417 As for the Old Town, he saw several fires inside the Old Town, one of
which was on the Stradun.418 Captain Drljan returned to @arkovica later that
day around 1400 hours.419 Smoke was still rising from several different sites in the
Old Town.420 Captain Drljan heard that Captain Kova~evi} was preparing to
withdraw his troops from Sr|. Captain Kova~evi} was issuing orders for tanks to
encircle Sr| and provide protection for the retreating JNA troops. At this time,
there was still firing at Sr|, but it was not of the same intensity as earlier. 421
137. As for the artillery support from the 130mm howitzers at îlipi, the Chamber
finds that it is not proved that the guns located at îlipi airport fired that day. The
general body of evidence is that they did not fire. That is so for both the 130mm
battery and the smaller 85mm battery. Captain
CaptainDrljan,T7701. 412 CaptainDrljan,T7701-7702. 413 CaptainDrljan,T7703. 414
411
CaptainDrljan,T7727-7729. 415 CaptainDrljan,T7728-7729. 416 CaptainDrljan,T7740. 417
CaptainDrljan,T7703-7704. 418 CaptainDrljan,T7704-7705. 419 CaptainDrljan,T7717. 420
CaptainDrljan,T7718. 421 CaptainDrljan,T7718.
Case No IT-01-42-T
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Pepi} was serving with the 107 OAG as commander of the 130mm howitzer
battery on 6 December. He had been ordered the previous evening to be at
@arkovica to convey targeting information to his battery as ordered by Captain
Kova~evi}. Captain Pepi} in his evidence confirmed that at 0800 hours he was
given an order by Captain Kova~evi} to fire upon the Croatian mortar positions on
the tennis courts near the Libertas Hotel. This firing position had been identified
by Captain Ne{i}. It was said in evidence that only Captain Pepi}’s battery had
those targets in range, but the Chamber finds to the contrary. Captain Pepi}
immediately communicated this order to his battery at îlipi over the radio. 422
It is Captain Pepi}’s evidence that, despite this, fire was never opened by
his battery. Branimir Luki}, Captain Pepi}’s deputy commander reportedly
responded that the order to open fire had not been approved. There were several
other requests for fire from Captain Kova~evi}, but it is Captain Pepi}’s evidence
that his unit never opened fire as requested.423 Captain Pepi} understood initially
that it was his immediate commander, Lieutenant-Colonel Stamenov, who
overruled the orders each time.424 Captain Pepi} later learned that the order
not to fire came through Lieutenant-Colonel Stamenov directly from the
command of the 9VPS, i.e. Admiral Joki}, who remained abreast of the situation
throughout the day.425 Captain Ne{i} advanced the opinion in his evidence
that the attack on Sr| was halted because of the lack of artillery support from the
130mm howitzers at îlipi. Without these guns, he said, it was not possible to
neutralise the firing positions directing fire against Mount Sr| and causing
casualties among the JNA troops.426
138. In the Chamber’s finding this is only partly true. Captain Kova~evi} had
mortars under his command especially at U{koplje and Strin~ijera which,
between them, were able to target the whole of Dubrovnik. In addition, the
mortars of the 3/5 mtbr at Osojnik could also target the suburbs of Dubrovnik to
the northwest of the Old Town where the main Croatian firing positions were
located. Despite the denials in evidence of the Commander of the 3/5 mtbr,
Lieutenant-Colonel Jovanovi}, which denials were contradicted by his own
contemporary report and messages, the Chamber finds the mortars of the 3/5
mtbr were used at times on 6 December 1991 against these Croatian firing
positions, including the Libertas Hotel. The howitzers at îlipi had greater
destructive capacity and accuracy than the mortars, but if properly directed, the
JNA mortars should have been able to make an impact on the relatively few
Croatian firing positions.
139. The truth seems to be, in the finding of the Chamber, that there was
inadequate direction of the fire of the JNA mortars and other weapons against
Croatian military targets. Instead, they fired
422 CaptainPepić,T7484-7485. 423 CaptainPepić,T7484-7485;T7582-7583.SeealsoCaptainNe{ic
́,T8182-8183. 424 CaptainPepić,T7581-7582. 425 CaptainPepić,T7583-7584.
Case No IT-01-42-T
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extensively and without disciplined direction and targeting correction, at
Dubrovnik, including the Old Town. Hence, the few Croatian artillery weapons
were able to continue to fire and to concentrate their fire on Sr|, where the few
remaining Croatian defenders were underground and the JNA attackers were
exposed. After some 6 hours of this fire it clearly became apparent to Captain
Kova~evi} that his attacking force could not overcome the defenders and break
the impasse. They were tired and affected by the cold conditions. The longer
they stayed at Sr|, the greater the prospect that they would fall to the Croatian
fire. So Captain Kova~evi} ordered their withdrawal 427 at some time between
1400 and 1500 hours. Captain Drljan’s evidence was that at about 1400 hours
Captain Kova~evi} was issuing orders for tanks to be prepared for the protection
of the troops withdrawing from Sr|.428 In his testimony, Captain Ne{ić referred to
orders for the units to withdraw.429
140. According to the report of Admiral Joki}, at 1435 hours it was decided to
retreat the unit approaching Sr| and redeploy it to the original positions. 430 The
following entries of the 9 VPS war diary refer to messages from and to the JNA
attacking troops from 9 VPS command concerning the abandonment of the
attack on Sr| by the JNA:
1400 Captain Kova~evi}: is thinking of withdrawing back his men since they are already
exhausted, it is cold. He was ordered to decide for himself what must be done. ...
1445 Kova~evi}: He cannot sustain on Sr|, must pull out men out of several reasons. He was
warned to withdraw the men in an organised fashion and to mind the mortars. I gave my
approval. ...
1520 Kova~evi}: withdrew men to Strincijera, acting with MB 120 on Sr|. 431
The 1520 hours entry indicates that JNA 120mm mortar fire was again directed
at Sr| as the JNA troops withdrew, no doubt to restrict the activities of the
Croatian defenders as the JNA retreated. The entries for 1400 and 1445 hours
confirm, in the Chamber’s finding, that the JNA troops at Sr| continued to be
under 9 VPS direction during the attack.
141. Captain Stojanovi}, with his smaller attacking force, stated that, in view of
the lack of artillery support and the losses his unit had sustained, he himself
decided to leave his position and get his soldiers out. 432 It was his evidence
that his withdrawal to Bosanka was completed at around 1300 hours or 1400
hours,433 although the times were merely a matter of impression and the general
426 CaptainNe{ić,T8185. 427 LieutenantLemal,T7375-7376. 428 CaptainDrljan,T7718. 429
CaptainNe{ić,T8185. 430 ExhibitD65. 431 ExhibitD96. 432 Lieutenant-ColonelStojanović,T7832-7833.
433 Lieutenant-ColonelStojanović,T7832-7833.
Case No IT-01-42-T
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body of evidence suggests that the actual time was after 1400 hours. Slobodan
Novakovic said that by 1540 hours, when he arrived at Bosanka, everything was
over and the soldiers from Sr| were already in Bosanka. 434
142. A meeting was held in Bosanka shortly after the withdrawal of the JNA
troops from Sr|. Captain Drljan who attended the meeting, heard complaints from
the troops that they had not been given the support from the 130mm howitzers
that had been agreed to the previous day. In their minds, it was Admiral Joki}
who had denied them this crucial support.435 Later that evening, Lieutenant
Lemal’s unit was visited by one of the senior officers of the 9 VPS. The men
protested that they had received no artillery support and that the unit had
incurred casualties as a result. Lieutenant Lemal said in his evidence that he had
been dependent on artillery support, as Croatian firing positions in Babin Kuk and
Lokrum were outside the range of his weapons.436 There were, however, the
82mm mortars of the company he commanded at Strin~ijera. Indeed, in his
evidence, Lieutenant Lemal blamed the lack of artillery support from the guns at
îlipi for the casualties his unit suffered on 6 December 1991. 437 As indicated
earlier, in the Chamber’s finding this may be a convenient explanation for the
defeat, but it is not justified by the facts. 438
143. In addition to the JNA mortar fire that came from Strin~jera and U{koplje
and fire from @arkovica, as indicated earlier, at least the 120mm mortars of the
3/5 mtbr also fired upon Croatian firing positions and other targets in the city of
Dubrovnik and its environs. Between 0600 and 0700 hours Captain Kova~evi}
informed Lieutenant-Colonel Jovanovi} that his troops were the subject of
Croatian fire. Captain Kova~evi} requested the support of both the 130mm
howitzers at îlipi and the fire support of the 120mm mortars of the 3/5 mtbr.
Lieutenant-Colonel Jovanovi} went directly to his observation post from where he
ordered that fire be opened by his mortars on visible targets in the Lazaret and
Nuncijata area.439 The weapons in his unit which were deployed on 6
December were located south of Osojnik, i.e, in the Greblje sector. Lieutenant-
Colonel Jovanovi}’s evidence was that the maximum range of his weapons would
have been the northern slope of Babin Kuk and Sr|, that is Nuncijata, Sustjepan,
the left bank of Rijeka Dubrava~ka [i.e. well short of the Old Town]. 440 In
response to Captain Kova~evi}’s first request, Lieutenant-Colonel Jovanovi} said
that he opened quite intensive fire on targets in Lazaret, Hotel Neptune and
Nuncijata, as well as
434 SlobodanNovakovi},T6836,6874. 435 Captain Drljan, T 7718-7719. See also the testimony of
Slobodan Novakovic who witnessed the meeting of the
soldiers and Captain Drljan. The soldiers acted angrily and insulted Captain Zec and Admiral
Joki} when they were
told they had to give up the attack on Mount Sr|, T 6831-6834. 436 LieutenantLemal,T7377-7378.
437 LieutenantLemal,T7463-7465. 438 See supra, paras 131; 138-139. 439 Lieutenant-
ColonelJovanović,T8082-8083. 440 Lieutenant-ColonelJovanović,T8082-8083.
Case No IT-01-42-T
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31 January 2005
Sustjepan between 0745 and 0830 hours.441 Around 0900 hours Captain
Kova~evi} contacted Lieutenant-Colonel Jovanovi} a second time, asking for
urgent support to be directed at Lazaret, Nuncijata and Hotel Libertas. Captain
Kova~evi} indicated that his troops on Sr| were under heavy fire from Hotel
Libertas and were suffering casualties as a result. 442 A second round of quite
intensive firing took place between 0915 and 1155 hours directed, according to
Lieutenant-Colonel Jovanovi}’s evidence, against targets within range in Lazaret
and Nuncijata.443 In his testimony, however, Lieutenant-Colonel Jovanovi}
denied that he directed fire from his units against targets near the Hotel Libertas,
as had been requested by Captain Kova~evi}.444 He said that Hotel Libertas
was not in range, but the Chamber finds this was not the case given the evidence
it has as to the range of these mortars445 and Lieutenant-Colonel Jovanovi}’s
reports of his actual targets at the time. The 9 VPS war diary contains a
reference at 1015-1020 to a report of the 3/5 mtbr firing 27 120mm (mortar)
shells of which 12 120mm shells were on Libertas.446 Lieutenant-Colonel
Jovanovi}’s written report also refers to the unit having acted on the region of
Hotel Libertas.447 The Chamber finds that the region of the Hotel Libertas was
within range of the mortars of the 3/5 mtbr in Osojnik, although near the limit of
that range, and that they fired on this position. The Chamber does observe,
however, that the tennis courts in the vicinity of the Hotel Libertas were in a
depression and would not have been able to be directly observed by Lieutenant-
Colonel Jovanovi}.448 Of course that is not unusual for mortar firing. His evidence
is that he reported to the forward command post at Kupari in relation to both of
these actions.449 The so-called war diary confirms this account. 450
144. There are two additional entries in the war diary for 6 December 1991
referring to actions taken by Lieutenant-Colonel Jovanovi}’s unit that day. The
entry at 1500 hours purports to be a comment from Captain Barakovi} and reads:
“3/5 pmtbr is sustaining strong sniper fire from Sustjepan. One senior officer
wounded and two vehicles damaged. They were ordered to take the
441 ExhibitD108,Lieutenant-ColonelJovanović,T8082-8083. 442 Lieutenant-ColonelJovanovic
́,T8084-8085. 443 Lieutenant-ColonelJovanović,T8085-8087,ExhibitD108. 444 Lieutenant-
ColonelJovanović,T8084-8085;T8123-8129. 445
JankoVili~ićsaidthatthedistancefromtheGrebljesector,where,accordingtoAdmiralJoki}the120mmm
ortars
were positioned (T 4011-4029, Exhibit P132), to Hotel Libertas was 6,150 (or 6,330) meters,
which is at the far end of the range of those mortars, T 8402-8404; 8495-8497. It is to be noted
that the Croatian position identified at the tennis courts in the vicinity of Hotel Libertas is in fact to
the north of the hotel and thus the distance is slightly smaller from that calculated by Janko
Vili~ić. Another expert, Joèf Poje, wrote in his report that the range of a 120mm mortar with
active-reactive shells is 9,000 meters, while with LTF shells it is 6,400 meters, Exhibit P184. In
court he testified that the range of such a mortar with a light shell is 6,000 meters, T 6412-6415.
446 ExhibitD96. 447 ExhibitD108,para4. 448 ExhibitC1/1,p12. 449 Lieutenant-Colonel Jovanović, T
8084-8087. In relation to the second action, he testified that he had sought
guidance from the operations centre in Kupari as to whether he should continue beyond 1200
hours in light of Captain Zec’s order the previous evening that all activities should be terminated
by 1200 hours. He was notified that the ceasefire should be honoured, T 8085-8087.
Case No IT-01-42-T
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31 January 2005
men to cover. Lieutenant-Colonel Jovanovi} has ordered the same. He is
ordering that MB (mortar) 120mm is to fire on the military targets with the
purpose of protecting the people”.451 Despite this, in his testimony, Lieutenant-
Colonel Jovanovi} also denied that his troops were firing at this time. 452 The
second entry, at 1627 hours reads as follows: “3/5 ptmbr from 1545 – 1615 it has
acted with MB 120mm on Sustjepan from which it has suffered strong and
focused sniper fire. At 1615 hours he stopped the action.” Lieutenant-Colonel
Jovanovi} testified that he was at the command post in Kupari writing his report
on the events of the day when the information came from Captain Barakovi}
about sniper fire. He said that, having heard the information about firing, he had
requested his troops to make preparations, but it was only once he had returned
to the unit, having written his report, that they opened fire on the targets. 453
145. As indicated earlier, the Chamber also had reason for reservation about the
evidence of Lieutenant-Colonel Jovanovi} about events at the meeting at the 9
VPS command post at Kupari on 5 December 1991. 454 With respect to his
evidence concerning the use of the mortars under his command, the Chamber
has found, contrary to his denials, that these mortars did fire on the region of the
Hotel Libertas as requested by Captain Kova~evi}, and did so more than once on
6 December 1991. It is apparent, however, that these attempts were limited in
duration. No doubt other targets were preferred. Even though there was direct
communication between Captain Kova~evi}, at an excellent observation position
at @arkovica, and Lieutenant-Colonel Jovanovi}, it is apparent from the evidence
that the latter was more concerned to fire at targets with no relevance to directly
supporting the attacks on Sr|, but which were of interest to the 3/5 mtbr’s area of
responsibility, including Sustjepan.455 With respect to his choice of targets in
Dubrovnik, the Chamber also notes the view of Lieutenant-Colonel Jovanovi}
that, as the Dubrovnik warning siren had sounded early in the attack, the civilian
population could be expected to have taken shelter, so that any movement
observed in Dubrovnik could be taken to be a Croatian defender and therefore a
legitimate military target.456
450 AdmittedasExhibitD96. 451 ExhibitD96. 452 Lieutenant-ColonelJovanović,T8139. 453 Lieutenant-
ColonelJovanović,T8140-8141. 454 Seesupraparas88;98. 455 In particular, according to the 9
VPS OC war diary, on 4 December 1991 the commander of the 3/5 mtbr informed
the 9 VPS OC that his unit was fired upon from small arms in the area of Sustjepan, that it was at
the same time under 82mm mortar fire and also under 12.7 mm mortar fire form the direction of
Nuncijata. The war diary also shows that on 5 December 1991, the 3/472 mtbr was under
Croatian fire from Sr|, but the commander was advised by the 9 VPS OC to restrain from any
action unless the fire from Sr| endangered the life of his soldiers. During the night the Croatians
opened sporadic fire from small arms, but received no fire-response by the JNA, Exhibit D96, pp
60-61; 66-67.
456 ExhibitD108. Case No IT-01-42-T
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31 January 2005
E. The role of the Accused - interrelationship of the Accused, Admiral Joki}
and General Kadijevi}
146. It was the evidence of Admiral Joki} that he was telephoned at about 0700
hours on 6 December 1991 by the Accused who said he had just received a
telephone call from the Federal Secretary of Defence, General Kadijevi} or his
Chief of Staff.457 On his account General Kadijevi} in Belgrade had been
contacted by a representative of the European Community to protest about the
artillery attack on Dubrovnik.458 The evidence of Admiral Joki} was that he was
surprised to hear that Dubrovnik was being attacked. He said he told the
Accused that the commander of the 3/472 mtbr was about to launch an attack on
Sr| as he had come under heavy fire.459 This evidence is consistent with other
evidence of Admiral Joki} that he had been woken before dawn to be told that
Captain Kova~evi} had reported provocations during the night by Croatian forces
at Sr|460 and, after a second report, that Captain Kova~evi} had decided to attack
Sr|.461 It was the Admiral’s evidence that the Accused told him that General
Kadijevi} was furious as this attack had come after a ceasefire agreement had
been reached, to which Admiral Joki} replied that he would look into the matter
and would stop the attack.462 It is the evidence of Admiral Joki} that he
informed the Accused that what was under way was the sending of the Chief of
Staff Warship-Captain Zec to the observation post of Captain Kova~evi} the
commander of the 3/472 mtbr, that he would also send Lieutenant-Colonel Gavro
Kova~evi} who was in charge of that unit there, and that he believed that the two
of them would be able to resolve the situation in the fastest possible way. 463
The Admiral said that the Accused agreed with these measures. 464
Admiral Joki} also said that in this conversation the Accused ordered him to
have the attack stopped465 and conveyed to him an order of General Kadijevi}
that both Admiral Joki} and the Accused should come to Belgrade for
consultation as soon as they dealt with the situation. 466 As will be discussed
the Chamber has reservations about aspects of this evidence. It will examine it
with close attention.
147. The Accused did not give evidence. Neither, of course, did General
Kadijevi}. There is therefore no denial of the evidence of Admiral Joki} about the
fact of this telephone conversation, and its content. Nevertheless, the Defence
has led evidence to suggest this conversation could not
457 AdmiralJoki},T4046. 458 AdmiralJoki},T4050. 459 AdmiralJoki},T4046. 460 AdmiralJoki},T4041. 461
AdmiralJoki},T4043. 462 AdmiralJoki},T4046-4047. 463 AdmiralJoki},T4052.
464 AdmiralJoki},T4052. 465 AdmiralJoki},T4052. 466 AdmiralJoki},T4047.
Case No IT-01-42-T
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have occurred and that the Accused knew nothing of the attack on Sr| and the
shelling of Dubrovnik until information from the 9 VPS was received by the 2 OG
mid-afternoon of the 6 December 1991.467 A defence witness, JNA officer Frigate-
Captain Handìjev, testified that at sometime before midday on 6 December
1991, while he was on duty at the operations centre at Kumbor, General Kadijevi}
called and asked to speak to Admiral Joki}. Having connected them, it is the
evidence of Frigate-Captain Hand`jiev that he then listened to their
conversation.468He testified that he heard General Kadijevi} ask Admiral Joki}
what was happening, to which the Admiral responded in a rather confused
manner that he was just carrying out a tactical movement of units. 469
Frigate-Captain Handìjev further testified that he had not received and put
through to Admiral Joki} any phone call that morning from the command of the 2
OG.470 This evidence is inconsistent, of course, with Admiral Joki}’s account
of a telephone conversation between the Accused and Admiral Joki} at around
0700 hours, and with Admiral Joki}’s evidence as to the content of that
conversation. The evidence of Frigate-Captain Handìjev about these matters
was directly rejected by Admiral Joki}, in rebuttal, as untrue and suspicious. 471
148. The Chamber finds itself unable to accept the evidence of Frigate-Captain
Handìjev in these respects. First, as a matter of credibility, and after making
allowance for the effects of the lapse of years between December 1991 and
Frigate-Captain Handìjev giving evidence in 2004, the Chamber concluded that
he was an entirely unsatisfactory witness. The Chamber gained the clear
impression that he was very uneasy and uncomfortable about his testimony.
Secondly, the heart of his evidence requires acceptance of the suggestion of
Frigate-Captain Handìjev that, as a relatively junior duty officer, he was prepared
to eavesdrop on a telephone conversation between his Admiral and the Federal
Secretary of Defence. Thirdly, the Chamber is unable to accept that he would
have, in 2004, the detailed recollection he claimed to have of elements of this
conversation and these events in December 1991, when it was made very clear
by cross-examination that he had no, or virtually no, recollection of any other
events of 6 December 1991, or of events immediately before or after that day. 472
Further, with respect to his evidence that there had been no call from the
command of the 2 OG that day, he did accept that at times he left the operations
room for a few minutes.473 And with respect to the supposed conversation
between Admiral Joki} and General Kadijevi}, the Chamber notes that Frigate-
Captain Handìjev was very vague as to the time of the
467ColonelSvi~evi},T7106-7107;7216. 468 Frigate-CaptainHandìjev,T7594. 469 Frigate-
CaptainHandìjev,T7594;7697;7666-7667. 470 Frigate-CaptainHandìjev,T7595. 471
AdmiralJoki},T8563. 472 In particular, Frigate-Captain Handìjev testified that he did not remember
receiving an order to call Lieutenant-
Colonel Kova~evi} and instruct him to come to Kupari, as recorded in the Kupari logbook at 1349
hours on 6December 1991, T7639-7640. Frigate-Captain Handìjev also stated that he is unable
to recall what conversations, messages or information he was dealing with on 4, 5 and 7
December 1991, T 7632-7633.
Case No IT-01-42-T
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call, but suggested that it was perhaps 1000-1100 hours 474 and purported only to
recall aspects of the conversation. In particular he did not mention any
conversation about an order to visit Belgrade, a ceasefire, or an order to stop the
attack.
149. There is also evidence of Colonel Svi~evi}, a senior staff officer of the
Accused at the 2 OG who expressly denied that the staff of the 2 OG had any
knowledge of an attack on Sr| or of shelling on Dubrovnik, including the Old
Town, until the receipt of information from 9 VPS mid- afternoon on 6 December
1991, in which there was a brief and general reference to these matters. 475
Colonel Svi~evi}, who then held the post of liaison officer in the headquarters of
the 2 OG476 went even further. In his evidence, he was present at a meeting that
day between the Accused and Colm Doyle at the headquarters of the 2 OG at
Trebinje.477 Colm Doyle was then an Irish army officer serving as an ECMM
monitor with responsibility in Bosnia and Herzegovina. 478 Today, he is the Chief
of Staff of the Military Division at the Department of Peacekeeping Operations of
the United Nations.479 This meeting occurred between 1200 and 1230 hours
in the finding of the Chamber, although Colonel Svi~evi} thought it was a little
earlier.480 In direct denial of the evidence of Colm Doyle, according to the
evidence of Colonel Svi~evi}, there was no discussion of an attack or shelling of
Dubrovnik between the Accused and Colm Doyle at that time. 481 Indeed it was
the effect of the evidence of Colonel Svi~evi} that neither the Accused nor he
knew of those events at Dubrovnik at that time.482 For reasons which the
Chamber discusses in some detail later in this decision, it finds this evidence of
Colonel Svi~evi} to be false.483 In particular, as noted later, the Chamber was not
persuaded by Colonel Svi~evi}’s attempts to reinterpret his notes. 484The
Chamber accepts contrary evidence and finds, for the reasons given later, that
the Accused did discuss the attack at Dubrovnik with Colm Doyle when they met
at Trebinje around 1200- 1230 hours that day. 485 The Accused initiated the
discussion.486 Colm Doyle had come that day from Bosnia and Herzegovina
and had no knowledge of the attack on Dubrovnik when he met the Accused. 487
Further, the Chamber finds that other evidence confirms that Admiral Joki}
and the Accused did discuss at least some aspects of the action at Dubrovnik in
the course of the morning
473 Frigate-CaptainHandìjev,T7595. 474 Frigate-CaptainHandìjev,T7595. 475
ColonelSvi~evi},T7106-7108;7216. 476 ColonelSvi~evi},T7062.
477 ColonelSvi~evi},T7087-7088. 478 ColmDoyle,T1701. 479 ColmDoyle,T1700. 480
ColonelSvi~evi},T7098.
481 ColonelSvi~evi},T7100-7101. 482 ColonelSvi~evi},T7100-7101;seealsoExhibitsD92;D93andD94.
483 Seeinfra,para163. 484 Seeinfra,para163. 485 Seeinfra,paras161-164. 486 Seeinfra,para162.
Case No IT-01-42-T
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and that the Accused and Admiral Joki} knew in the course of the morning that
they had been ordered that morning to go together to Belgrade that day to see
General Kadijevi} to discuss the events at Dubrovnik. 488 In view of these
significant matters, the Chamber rejects as untrue the attempts by Colonel
Svi~evi} to suggest in his evidence that the events in Dubrovnik were unknown at
the 2 OG headquarters and by the Accused until mid-afternoon on 6 December
1991.
150. It was also submitted that radio and other logs of the 2 OG and other JNA
units indicated that what was occurring at Dubrovnik on 6 December 1991 was
not with the knowledge or direction of the 2 OG and the Accused, and that
aspects of the evidence of Admiral Joki} about the events of that day were not
borne out by these various records. 489 The Chamber is not able to accept this
line of submission. In essence, the Chamber is not persuaded that what is
recorded in the various radio and other logs or records that are in evidence are
by any means a complete record of the relevant events that day. The Chamber
finds these to be somewhat haphazardly kept records, inconsistent as to the
nature of the information recorded and as to the extent of the detail and the
accuracy of what is recorded. Further, some logs or diaries that are most material
are not in evidence. It appears they could not be located in the official JNA
records.490Also it does not appear to be at all surprising that certain matters or
events are not mentioned in the records that are in evidence, given their nature
and the general contents of the records. In particular, the Chamber observes that
it is clear, in its finding, that not all orders or messages (even those of
significance) were recorded, neither was there a universal practice of recording in
detail what steps were taken to pass on an order or a message, or responses,
nor were accurate time records maintained. Further, the Chamber accepts from
the evidence that quite independently of the JNA military communications
system, which involved both radio and land-line communications and extended to
all relevant units on 6 December 1991, and did not suffer failures of
communications that day (despite some suggestions in the evidence of possible
failures), there was also available the civil telephone and telefax service by which
a number of communications material to this case were conducted, even at the
most senior level. This civil system had defects and deficiencies at the time, but it
was available and was used.491 There is also the significant issue whether all of
the records in evidence can be accepted for truth. As discussed elsewhere 492
some of the JNA records are in the Chamber’s finding deliberately contrived to
present a false picture.
487ColmDoyle,T1708-1709;1716-1717. 488 AdmiralJoki},T4047. 489 DefenceFinalBrief,paras666-
686. 490 See Lieutenant-Colonel \urasi}, T 7007; Frigate-Captain Handìjev, T 7629. 491
Admiral Joki}, T 4682-4684; Colonel Kurdulija, T 7864-7866; 7870; Frigate-Captain Handìjev, T
7641; 7648;
7676. 492 See supra, paras 96-97.
Case No IT-01-42-T
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151. It remains the case, however, that there is neither independent confirmation
nor direct denial of the evidence of a telephone conversation between the
Accused and Admiral Joki} at around 0700 hours. It is clear, however, that at
some stage before mid-morning Admiral Joki} knew that he and the Accused
were unexpectedly ordered to go to General Kadijevi} in Belgrade that day.
Indeed, the Defence does not deny that the Accused and Admiral Joki} flew to
Belgrade that afternoon.493 The radio log of the Dubrovnik harbour authority
records that at 1027 hours Admiral Joki} requested a meeting with Minister
Rudolf as early as possible that day because of “pressing official
engagements.”494 Another message at 1145 hours to Minister Rudolf is
recorded in which Admiral Joki} proposed that their negotiations be resumed the
next day because he was expected in Belgrade at 1400 hours. 495 This same
message expressed the apologies of Admiral Joki} for the attack and indicated
that General Kadijevi} had ordered an investigation. The Chamber finds from
these that, before 1027 hours on 6 December 1991, Admiral Joki} knew that he
and the Accused had been ordered to Belgrade to consult with General Kadijevi}
that afternoon.
152. Some particular aspects of the evidence of Admiral Joki} may be said to be
unsatisfactory. While it was the initial evidence of Admiral Joki} that in the
telephone conversation with the Accused at around 0700 hours the Accused
ordered that the attack be stopped and agreed with the measures Joki} had
already taken,496 at a later point in his evidence he denied that the Accused had
said to him or to any subordinate that the activities against the Old Town needed
to be stopped.497 At another point in his evidence, when asked whether on 6
December the Accused had issued an order not to attack the Old Town, Admiral
Joki} answered that he did not know of any other order, except for an order of 5
December prohibiting the opening of fire as of 1200 hours on 6 December
1991.498 The Chamber notes that in each of these cases, however, Admiral
Joki} was not accepting that the Accused had given him an order not to attack
the Old Town, which is a materially different order from one to stop the attack on
Sr|.
153. There are difficulties in the way of accepting all of Admiral Joki}’s evidence
about his actions that morning. He gave evidence of his reactions and orders he
had given when woken to be told, he said, of messages from Captain Kova~evi},
reporting provocations at Sr|, casualties and indicating that he would attack. 499
These reactions and orders were, in the view of the Chamber, strange
indeed, and quite out of keeping with the reactions to be expected of a person in
the
493DefenceFinalBrief,para447. 494 MinisterRudolf,T5765;ExhibitP162. 495 Minister Rudolf, T 5568-
5570; Exhibit P162; see also Exhibit P136, which is the same message received by
facsimile. 496 AdmiralJoki},T4052. 497 AdmiralJoki},T4063. 498 AdmiralJoki},T4053-4054. 499
AdmiralJoki},T4041;4043.
Case No IT-01-42-T
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Admiral’s position. He says he was keenly expecting a ceasefire to be concluded
that morning to settle the Dubrovnik problem. He had already (he says) issued a
ceasefire order to 9 VPS in anticipation of a concluded agreement. In particular,
on the evidence of Admiral Joki}, apparently before the 0700 hours telephone
conversation, he had dispatched Warship-Captain Zec to @arkovica to stop the
attack immediately,500 whereas Captain Drljan testified that on 6 December 1991
in Kupari he received a phone call from Warship-Captain Zec, not necessarily
before 0700 hours, who ordered him to go to @arkovica and convey an order
from Admiral Joki} to Captain Kova~evi} not to fire on the Old Town of
Dubrovnik,501 an order quite different from one to stop the attack. Critically, as the
Chamber has found earlier in this decision, Warship-Captain Zec did go to
@arkovica but at a time around or after 0800 hours, and rather than acting to
stop the attack, or to prevent fire on the Old Town, he remained at @arkovica
throughout the day,502 as the attack continued and the Old Town was shelled.
Admiral Joki} testified that later that morning he had by telephone also ordered
Lieutenant-Colonel \urasi} to go to @arkovica urgently and to stop the attack, 503
whereas Lieutenant-Colonel \urasi} testified that on 6 December, he did not
receive an order from Admiral Joki} to go to @arkovica and did not go there on
that day.504
154. It is the Admiral’s evidence, further, that in the morning of 6 December he
had issued orders prohibiting the batteries within range of the Old Town, i.e.
those at îlipi, from using their weapons against the Old Town and had arranged
to have Captain Kova~evi} told that he would not receive artillery support. 505
It is the case that the howitzer battery at îlipi was prevented from opening
fire by the Command of the 9 VPS on each occasion that Captain Kova~evi}
required them to fire at targets in Dubrovnik. 506 There is no suggestion in the
evidence, however, that any of the mortar batteries received an order from the 9
VPS around 0700 hours, or later that day, to cease fire, or not to fire on the Old
Town, except for what appears to have been a ceasefire order given late in the
morning, to take effect at 1115 hours, and which led to a temporary reduction in
the frequency of shelling at about that time. This is consistent with the evidence
of Admiral Joki} that it was the batteries at îlipi that were prevented from firing
and that Captain Kova~evi} would not receive artillery support. 507 This left
Captain Kova~evi} without restraint, however, on the use of his own mortars,
cannons and rockets. No orders were given to 3/5 mtbr prohibiting the use of its
mortars.
AdmiralJoki},T4064-4065. 501 CaptainDrljan,T7701;T7722. 502
500
CaptainPepi},T7484;AdmiralJoki},T4101. 503 AdmiralJoki},T4068. 504 Lieutenant-
Colonel\urasi},T6977-6978. 505 AdmiralJoki},T4052-4053. 506 Seesupra,para137. 507
AdmiralJoki},T4052-4053.
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155. There remains, however, in the Chamber’s view, nothing which denies that
there was a telephone conversation at about 0700 hours, whatever its content
may have been, and it is clear that Admiral Joki} was aware by mid-morning of
matters, which he says he learned during that conversation e.g. that he and the
Accused were ordered to Belgrade that afternoon. It is also the evidence of
Admiral Joki}, that although not noted in earlier statements, he spoke with the
Accused more than once during the morning.508 In the Chamber’s finding
with respect to this issue, it is the case that at some time before 1027 hours the
Accused and Admiral Joki} did speak to each other by telephone. Whether it was
at around 0700 hours, or later, or more than once, and what was said between
them, are not matters about which the Chamber can make express findings from
the evidence of Admiral Joki} alone. However, as has just been indicated, other
evidence does afford some independent confirmation of some aspects of this
evidence of Admiral Joki}.
156. Further confirmation that the Accused and Admiral Joki} did speak to each
other at some stage during the morning of 6 December 1991 is provided by a
radiogram Minister Rudolf received from the Accused’s command at 2 OG at
around 1630 hours that day. The radiogram is in the Accused’s name. This
radiogram includes the statement “On my orders the units ceased fire at 1115
hours ...”.509 As the Chamber has found earlier in this decision there was
indeed a temporary reduction in the frequency of shelling on Dubrovnik, including
the Old Town, at about that time, although not a complete cessation. 510
Minister Rudolf and Admiral Joki} had, however, only reached an
understanding or an agreement for a ceasefire to take effect at 1115 hours
(originally 1100 hours) in exchanges between them during the mid-morning. 511
What evidence there is as to the implementation of this by the JNA, which
implementation was at best incomplete, indicates the actual order was passed by
Admiral Joki} through the 9 VPS but only to some units. There is no indication
that a cessation of the attack on Sr| was ordered. No such order was received by
the attacking infantry units or by 3/5 mtbr. The radiogram in the name of the
Accused, but in truth from his command as he was in Belgrade at that time,
discloses that the ceasefire order had originated with him. The necessary
implication, in the finding of the Chamber, is that following the discussion of a
possible ceasefire to take effect at 1115 hours by Minister Rudolf and Admiral
Joki}, the Accused and Admiral Joki} discussed it, the Accused approved it, and
left it to Admiral Joki} to convey the order. This was in accordance with the
standard chain of command structure between 2 OG and 9 VPS and its
subsidiary units.
508AdmiralJoki},T4894. 509 ExhibitP23;MinisterRudolf,T5603-5604. 510 Seesupra,para107. 511
MinisterRudolf,T5600-5601.
Case No IT-01-42-T
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157. One significance of these matters for the events of 6 December 1991 and
the issues in this case, is that, in the finding of the Chamber, there is confirmation
that the Accused and Admiral Joki} did converse by telephone during the
morning of 6 December 1991. The total effect of the evidence suggests they had
more than one conversation. Their conversations were about the attack. The
Accused did order a ceasefire from 1115 hours, although he did not order the
cessation of the attempt to take Sr|. The Accused did convey to Admiral Joki} the
order of General Kadijevi} for both the Accused and Admiral Joki} to consult with
him in Belgrade that afternoon. The Chamber so finds. A further significance, of
course, is to provide yet further confirmation of the falsity of the evidence of
Colonel Svi~evi}, which the Chamber rejects elsewhere in this decision, 512 that
the events at Dubrovnik that morning were not known by the Accused and the 2
OG Headquarters until mid-afternoon.
158. It is also the case that Admiral Joki} told Minister Rudolf that General
Kadijevi} had ordered an investigation.513 The Chamber did weigh, but rejected,
whether this affords confirmation of a direct conversation between Admiral Joki}
and General Kadijevi}. In particular neither the timing nor the subject (an
investigation) fits readily with the evidence of Frigate-Captain Handìjev of the
conversation he claimed to have overheard. Neither does Admiral Joki} suggest
an investigation was intended in his 0700 hours conversation with the Accused.
That being so, the mention of an investigation strengthens the possibility that this
had been discussed by Admiral Joki} and the Accused after the Accused had
spoken further to General Kadijevi} during the morning, following his initial
conversation with Admiral Joki}. That remains, however, an issue that cannot be
conclusively determined by the Chamber given the state of the evidence. Another
clear possibility is that the suggestion of an investigation was an initiative of
Admiral Joki} as a means of appeasing Minister Rudolf, although attributed to
General Kadijevi}, an initiative which Admiral Joki} followed up that same
afternoon when he made the same suggestion to General Kadijevi} in Belgrade.
As will be seen, this suggestion was accepted that afternoon by General
Kadijevi}.
159. As has been mentioned, the Chamber also attaches weight to the
significant evidence of a meeting around midday on 6 December 1991 between
the Accused and Colm Doyle at the Accused’s headquarters at Trebinje. As
recorded later, it is the Chamber’s finding that at that meeting the Accused told
Colm Doyle that he had responded to an attack on his troops in Bosnia and
Herzegovina by firing on the city of Dubrovnik.514 For reasons it explains later,
the Chamber
512Seeinfra,para163. 513 Admiral Joki}, T 4088; Minister Rudolf, T 5612; Exhibit P61, tab 33. 514
ColmDoyle,T1716.
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finds this to be an admission of the Accused that he ordered the attack on the Sr|
feature at Dubrovnik.515
160. The total effect of the evidence about these issues leaves the Chamber
persuaded that it should accept the evidence of Admiral Joki} that he and the
Accused did speak by telephone about the shelling of Dubrovnik, and especially
about the shelling of the Old Town, during the morning of 6 December 1991, and
that they spoke more than once. Given evidence as to protests originating from
Minister Rudolf and the ECMM monitors very early after shells commenced
falling on the Old Town around or not long after 0600 hours, 516 the Chamber
finds that an ECMM protest may well have reached General Kadijevi} in Belgrade
before 0700 hours that morning from the ECMM representative staff in
Belgrade.517 The Chamber is persuaded, therefore, that despite its reservation
about some aspects of the evidence of Admiral Joki} as to his actions that
morning, it should accept the evidence of Admiral Joki} that the first conversation
he had with the Accused was at around 0700 hours and was a conversation in
which the Accused reported that a protest about the shelling of Dubrovnik had
already reached General Kadijevi}. The Chamber has reservations about some
of the other detail of that conversation, as recalled in the evidence of Admiral
Joki}, which reservations were developed earlier in these reasons. 518
161. The Chamber returns now to the very significant evidence of the meeting of
the Accused with Colm Doyle on 6 December 1991. While the Defence initially
challenged the evidence of this meeting and its date and place, in the course of
the Defence case it called Colonel Svi~evi}, who was then a senior staff officer of
2 OG, and who was actually present at the meeting on that day and had notes he
had made during the meeting.519 The Chamber has no difficulty finding that
there was a meeting between the Accused and Colm Doyle on 6 December
1991. It occurred at the Accused’s headquarters at the outskirts of Trebinje. 520
The Chamber accepts the evidence of Colm Doyle that the meeting took
place between approximately 1200 and 1230 hours. 521 Colonel Svi~evi} would
put the meeting between 1100 and 1200 hours. 522 Nothing turns on the time
difference.
162. It is the evidence of Colm Doyle that the Accused, whilst courteous,
appeared preoccupied during the meeting. 523 It was said that much was
happening that day.524 It is the witness’s evidence
515 516 517 518 519 520
521 522 523
See infra, paras 166-167. See supra, paras 101-102. Admiral Joki}, T 4050. See also Milovan
Zorc, T 6639-6640. See supra, para 152.
Colonel Svi~evi}, T 7089. Colm Doyle, T 1713-1714. See also, Exhibit P46 which is the personal
diary of the witness in which the meeting with the Accused is recorded, and Exhibit P47 which is
a photograph taken at the end of the meeting.
Colm Doyle, T 1712; 1718. Colonel Svi~evi}, T 7098.
Colm Doyle, T 1715-1716.
Case No IT-01-42-T
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that after he and the Accused introduced each other and their missions, through
a JNA interpreter, the Accused told him that he was angry because paramilitaries
on the territory of Bosnia and Herzegovina had attacked his troops, which he
could not tolerate, and that he had responded by firing on the city of
Dubrovnik.525 The witness testified that these were the words of the Accused
as conveyed to him by an official JNA interpreter,526 and that he was taken by
surprise at what he saw as an admission by a senior military officer of an action
taken against a city.527 As has already been noted, Colm Doyle had no
knowledge of the attack on Dubrovnik before he met the Accused that day. 528
163. This evidence is contradicted by Colonel Svi~evi} who testified that he was
present at the meeting in the presence of the Accused, Colm Doyle, another
ECMM representative and a liaison officer from the command of the JNA
Sarajevo district who was interpreting what was being said. 529 On the basis of
the notes he took of the meeting,530 the witness testified that the discussion
related to the preservation of peace in Bosnia and Herzegovina, and more
particularly to previous incidents in Neum, as Colm Doyle was a newly appointed
ECMM team leader for Bosnia and Herzegovina and the 2 OG had troops
there.531 Colonel Svi~evi} testified that he was present throughout the meeting
and that he had no recollection of any reference to artillery fire being opened on
Dubrovnik,532 although it was apparent from his evidence that his actual
“recollection” was based on the notes. No such reference is recorded in his
notebook,533 although he accepted that some unofficial conversation between
Colm Doyle and the Accused was not recorded in the notebook. 534 The Chamber
is unable to accept the evidence of Colonel Svi~evi}. He purported to depend on
the notes he made in his notebook. Yet, on their face, they do not support the
interpretation he placed on them. His efforts to reinterpret his notes by distorting
their order appeared to the Chamber to be patently false. Both logic and his
demeanour provided confirmation of this. Further, in the Chamber’s finding, the
effect of his evidence is that his notes were not exhaustive 535 and were made to
help him with his own essentially public relations duties. 536 That being so, he
would hardly note such an admission by his General.
524 Colm Doyle, T 1714. 525 ColmDoyle,T1716. 526 ColmDoyle,T1759-1761. 527
ColmDoyle,T1716-1717. 528 ColmDoyle,T1708-1709;1716-1717. 529 ColonelSvi~evi},T7089;7166-
7167. 530 ExhibitsD92,D93andD94. 531 ColonelSvi~evi},T7098. 532 ColonelSvi~evi},T7100-7101. 533
ExhibitD94,pp129-137. 534 ColonelSvi~evi},T7236-7237;7240. 535 ColonelSvi~evi},T7236-
7237;7239-7240. 536 ColonelSvi~evi},T7059.
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164. Notwithstanding the fact that the conversation between Colm Doyle and the
Accused was conducted through an interpreter, the Chamber notes that Colm
Doyle also had a competent interpreter present 537 who had no occasion to
intervene at any stage to correct or query any aspect of the interpretation by the
JNA interpreter. The Chamber was impressed with the candour and care of Colm
Doyle about his evidence. It is conscious that his evidence is based essentially
on his recollection which was first recorded some four years after the
conversation538 so that the possibility of faulty recollection at the time must be
weighed. To the contrary, however, is the brief but very compelling note made by
Colm Doyle in his diary probably later on 6 December 539 which was “12.00 met
with Gen Strugar (three star) bad in Dubrovnik.” 540 A note which confirms that
Dubrovnik was, to Colm Doyle, the compelling point of the conversation with the
Accused, rather than a location in Bosnia and Herzegovina as suggested by
Colonel Svi~evi}. There was later conversation, however, about events in Bosnia
and Herzegovina and the Accused had mentioned events in Bosnia and
Herzegovina as the reason for his ordering fire on Dubrovnik. The Chamber finds
Colm Doyle’s evidence to be very reliable and understands it as an unequivocal
admission by the Accused that there had been firing that day on Dubrovnik by
troops under his command, which firing occurred on the Accused’s deliberate
order, his offered explanation being the conduct of opposing forces in Bosnia and
Herzegovina.
165. There is of course room for speculation as to why the Accused would make
such a statement or as to why events in Bosnia and Herzegovina would have led
him to respond in Dubrovnik; of course that may have been truly the position or
merely an excuse. One obvious reason for the issue being raised was for the
Accused to try and offer some justification for his conduct. The Chamber cannot
resolve such issues. This event does provide, however, a telling insight into what
was in the forefront of the Accused’s thoughts, at that stage on 6 December
1991. These matters do not change the fact that the Accused very clearly
indicated on 6 December 1991 that he had his troops fire on Dubrovnik. The
issue is then what the Accused meant by his reference to the city of Dubrovnik.
166. In the context of the present Indictment there is a tendency to jump to the
view that this is an admission that the Accused ordered his troops to fire on the
Old Town. The Chamber, however, must be more circumspect about the
meaning of these words. The reference was to the city of Dubrovnik, not to the
Old Town.541 Dubrovnik is a much more extensive locality than the Old
537ColmDoyle,T1760-1761. 538 ColmDoyle,T1788. 539
ColmDoyledidnotrememberwhenexactlyhemadethisentrytohisdiarybutitwashispracticetofillinthedia
ry
the evening or the following day, T 1712-1713. 540 ExhibitP46;ColmDoyle,T1712-1713. 541
ColmDoyle,T1716.
Case No IT-01-42-T
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Town. Indeed as a region, as noted at the outset of this decision, it is quite
extensive. On 6 December 1991, however, the only part remaining in the
occupation of Croatian forces was the greater city of Dubrovnik which included
the Old Town and also, both geographically and as a matter of ordinary
language, Sr| as the dominant topographical feature of the city of Dubrovnik. The
Chamber understands from the evidence of Colm Doyle that the Accused’s given
explanation for the firing on Dubrovnik was founded on attacks on his troops by
paramilitaries. As the JNA did not then accept that Croatia had lawfully left the
SFRY, all Croatian forces were regarded by the JNA as paramilitaries as they
were not lawfully constituted as a military force.542 To the JNA forces, all of
whom in the region were under the Accused’s command, Sr| was an ongoing
sign of the failure of the JNA in November to sweep the Croatian forces from the
heights around Dubrovnik. Sr| was therefore the position in Dubrovnik which
could most effectively strike a decisive blow to Croatian forces. Its capture would
deny them the one position which offered them a clear defensive advantage,
while significantly enhancing the effectiveness of the JNA’s grip on Dubrovnik.
The taking of Sr| might well also have been anticipated to be a significant
psychological blow to the people of Dubrovnik such that it could well encourage a
more ready acceptance of JNA proposals to resolve the situation Dubrovnik
faced.
167. While the words of the Accused to Colm Doyle can be interpreted as
indicating that he ordered his troops to fire on the greater city of Dubrovnik, in the
Chamber’s view his words are very well capable of being understood as an
admission that the attack being made that day by the JNA was on his order. This
was, as the Chamber has found, an attack directed at Sr|, but as will be
discussed, the order to attack Sr| also contemplated some shelling of the city.
This evidence leads the Chamber to conclude that what the Accused was in fact
saying to Colm Doyle was that he responded to attacks on his troops in Bosnia
and Herzegovina by having his troops attack the obviously advantageous and
strategic Croatian “paramilitary” position in Dubrovnik which jeopardised JNA
troops in the area, namely Sr|. His reference to the city is also consistent with an
awareness that the city was indeed being shelled by his forces during the attack.
The Chamber is conscious that this finding as to the meaning of his words is
more favourable to the Accused than a more literal understanding. This
admission by the Accused of his direct responsibility for the attack that day is
also strongly consistent, in the Chamber’s view, with the military realities of the
JNA, pursuant to which it is difficult indeed to conceive that the attack would have
been launched at the level of the 9 VPS, without the concurrence of the 2 OG,
especially at such a critical point of time because of the negotiations and the
wider political activity we have mentioned.543
542AdmiralJoki},T4368. 543 Seesupra,paras79-81.
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168. There remains the issue when the Accused gave the order for his troops to
attack Sr|. On one view the preoccupation of the Accused, which was noticed by
Colm Doyle,544 and the Accused’s indication that he gave the order because of
his anger,545 could suggest that he had acted in anger that morning. The
preoccupation of the Accused and any indication of actual anger during the
meeting is also consistent, however, with the Accused’s concern that the attack
on Sr| had not gone as anticipated. Instead of Sr| being captured quickly and well
before 1200 hours, it was by then after 1200 hours and the attack was showing
little sign of succeeding.546Further, the course of the morning had led to extensive
JNA shelling of Dubrovnik including, in the finding of the Chamber, shelling of the
Old Town,547 such that the Federal Secretary General Kadijevi} had expressed
his anger to the Accused at the course of events and the Accused had been
ordered to Belgrade that afternoon to discuss the situation even while the attack
was still continuing and his troops continued to be in some jeopardy.
169. If the Accused’s explanation to Colm Doyle for his order did represent the
truth, and was not merely an attempt to provide an excuse, the anger of which he
spoke was anger at the conduct of paramilitaries in Bosnia and Herzegovina. He
did not say that this conduct had occurred that morning. The evidence does not
identify what that conduct may have been. Other evidence discloses, however,
as found by the Chamber elsewhere in this decision, that the detailed planning of
the attack and preparations for its implementation were made the day before. 548
This indicates the order was given on 5 December for an attack on the 6
December. The Chamber further notes that an order for such an attack given on
5 December would be given by the Accused in the knowledge of whatever
instructions were given to him during the meeting at the General Staff on 3
December 1991, when the Accused was directed to undertake the negotiations
with Minister Rudolf concerning Dubrovnik, the conduct of which negotiations he
in turn delegated to Admiral Joki}.549 Whether it was the decision to take Sr|, or
the manner of its execution on 6 December, which angered General Kadijevi}
remains an open question.
170. The Accused and Admiral Joki} flew together from Podgorica to Belgrade
on the afternoon of 6 December 1991 as ordered by General Kadijevi}. 550 There
is some difference in the evidence as to the time of their departure. Admiral Joki}
thought that he left at around 1300 hours, although there is a note in the 9 VPS
war diary that Admiral Joki} “shall be at îlipi at 1400 hours.” 551 The
544ColmDoyle,T1715. 545 ColmDoyle,T1716-1717. 546 Seesupra,paras139-140. 547
Seesupra,paras104-110. 548 Seesupra,paras96;98. 549 Seesupra,paras79-80. 550
AdmiralJoki},T4074;ExhibitD96. 551 ExhibitD96.
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Admiral did fly from îlipi by helicopter to Podgorica to meet the Accused for the
flight to Belgrade. The time is not critical. The evidence indicates they had
returned together by about 1730 hours.552
171. In Belgrade the meeting with the Federal Secretary of Defence General
Kadijevi} took place at the headquarters of the General Staff of the JNA. General
Simonovi} and the Chief of Staff General Adzi} were also present. 553 The
only evidence as to what occurred at that meeting is from Admiral Joki}. It was
his evidence that General Kadijevi} asked the Accused and Admiral Joki}
together about the events that morning at Dubrovnik and accused both of them of
not having acted wisely.554It was Admiral Joki}’s evidence that the Accused
essentially left it to Admiral Joki} to explain what had occurred, so that the
Admiral felt somewhat abandoned by the Accused who did not explain more
extensively what had happened.555 Hence, it was the Admiral’s evidence that
he felt that he was being portrayed as the main perpetrator. This did not coincide
with his own view of the events.
172. It is the evidence of Admiral Joki} that during the meeting he proposed that
he should carry out an investigation. 556 Following this, still in the presence of
the Accused, General Kadijevi} in essence told Admiral Joki} to go to the Old
Town and try to repair the damage and sort things out. 557 It is not the evidence
that at this meeting there was an explicit order from General Kadijevi} to Admiral
Joki} to conduct an investigation into the shelling of the Old Town, although an
acceptance that he should do so was implicit.
173. Given the evidence as to this meeting and the events involving General
Kadijevi} earlier that day concerning this matter, it is apparent, in the finding of
the Chamber, that the JNA was in what is colloquially described as “damage
control mode” at that stage in respect of the attack Dubrovnik, especially the Old
Town. The attack had provoked virtually immediate and strong adverse
international reaction with General Kadijevi} himself being directly contacted by
the European Community representative in the very early stages of the attack. 558
An investigation of some type was an obvious step in deflecting adverse
international opinion. All forces involved in the attack were under the immediate
command of Admiral Joki}. He therefore had investigative and disciplinary
powers. He had represented the JNA, as the Accused’s deputy, in the Dubrovnik
552 Admiral Joki}, T 4071. 553 AdmiralJoki},T4079. 554 AdmiralJoki},T4079. 555
AdmiralJoki},T4081. 556 AdmiralJoki},T4112. 557 AdmiralJoki},T4112. 558
AmbassadorFietelaars,T4192-4193.
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negotiations held the previous day.559 He had been in touch with the Croatian
leaders in Dubrovnik and the EC representatives that morning. He proposed to
General Kadijevi} that he should undertake an enquiry. He was thereby an
obvious person, if not the obvious person, to investigate and prepare a report,
and to do so consistently with his assigned task of trying “to repair the damage
and sort things out.”
174. What followed, in the finding of the Chamber, evidences the tenor and the
effect of the understanding or instructions Admiral Joki} took from the Belgrade
meeting. His immediate actions were to give unqualified assurances, citing the
authority of General Kadijevi}, of a thorough investigation and action to deal with
the perpetrators, to Minister Rudolf,560 the Dubrovnik Crisis Committee and the
ECMM.561 He called for reports from a few of his senior staff, 562 reports which
were not conveyed to anyone else. He dispatched officers to “improve” the
morale of the units involved in the attack who by the end of the day considered
they had suffered defeat, and also to seek to determine from these units what
had occurred.563 Their reports, if any, were not conveyed to anyone else. He
removed one acting battalion commander from his post, Lieutenant-Colonel
Jovanovi} of the 3/5 mtbr,564 but returned him immediately to his normal duties
without any adverse disciplinary or other action. He then reported to the Federal
Secretariat briefly on these matters, and generally on the action of 6 December
1991, in a way which was quite out of keeping with the facts as revealed by the
evidence in this case, so as to put the conduct of the JNA forces in a more
favourable light. His report included an assurance that “final and all
encompassing” measures would follow.565 There never were any. The next day, a
“Commission” of three 9 VPS officers visited the Old Town to report on the
damage.566 Admiral Joki} endorsed their report, which sought to minimise the
nature and extent of the damage and deflect responsibility for its cause from the
JNA, when even a cursory viewing of the accompanying film would have
disclosed its inadequacy.567 He took no other disciplinary or administrative
action to better determine the truth of what occurred or to deal with those
responsible. A glaring indication of the sham which, in the finding of the
Chamber, this investigation and these measures were, is provided by the fact
that
559Seesupra,paras80-81. 560 MinisterRudolf,T5568-5572;5612,ExhibitP61,tab33. 561
PerHvalkof,T2204,ExhibitP61,tab35. 562 AdmiralJoki},T4094-4095. 563
AdmiralJoki},T4095.CaptainNe{i}testifiedthaton7December1991officersfromthecommandofthe9V
PS
visited the soldiers of the 3/472 mtbr and spoke to them, T 8187; see also Exhibit D112.
Lieutenant Lemal also testified that on 6 December officers of the 9 VPS visited his unit to
discuss what had happened during that day and the morale of the troops, T 7421.
564 Lieutenant-ColonelJovanovi},T8094;ExhibitD65;AdmiralJoki},T8553. 565 ExhibitD65. 566
AdmiralJoki},T4109;ExhibitP61,tab39.LarsBrolundtestifiedthaton8DecemberheassistedJNAofficer
sand
photographers in their inspection of the town, T 885. Lieutenant-Colonel \urasi} testified that three
officers in civilians clothes with a video camera passed by his command post at Moko{ica on their
way to Dubrovnik to film the damage and on their way back, T 7011-7012.
Case No IT-01-42-T
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the 120 mm mortar battery of the 3/5 mtbr was not within range of the Old
Town.568 They were the only artillery weapons under the command of
Lieutenant-Colonel Jovanovi}, who was the ONLY officer who was removed by
Admiral Joki} from his command. This was a temporary command, which
Lieutenant-Colonel Jovanovi} held for only one day. 569 This battery could not
have caused damage to the Old Town on 6 December 1991. Admiral Joki} took
no disciplinary action against anyone else. The evidence discloses no action by
the Accused to investigate or discipline anyone in respect of the shelling of the
Old Town or the events of 6 December 1991. In short no one has been
disciplined or suffered adverse action for the shelling of the Old Town, on 6
December 1991. In fact, some 8 days after 6 December 1991 Captain Kova~evi},
who commanded the attack, was promoted. 570
175. The only explanation offered by Admiral Joki} is that he could not find any
evidence to justify action. Even were it to be accepted that he knew nothing of
the Accused’s order to attack and capture Sr|, the coordinated nature of the
attack, the involvement of units other than 3/472 mtbr, especially the howitzer
battery at îlipi which Admiral Joki} repeatedly prevented firing on 6 December
1991, and of his Chief of Staff Warship-Captain Zec and other 9 VPS staff
officers on 5 and 6 December, provided glaring evidence that the attack was not
the conduct of Captain Kova~evi} acting alone and on the spur of the moment on
the morning of 6 December 1991, without authority and contrary to orders. That
continued to be the explanation offered by the JNA and for which the Accused
apologised in a note to Minister Rudolf. 571 It was the explanation for which at
least some JNA records had been manipulated falsely to provide some apparent
foundation or confirmation, as the Chamber has already found. The explanation
of Admiral Joki} for the absence of disciplinary action by him is not persuasive.
The Accused’s position is considered specifically later in this decision.
567 ExhibitP145;AdmiralJoki},T4337-4338. 568 AdmiralJoki},T4022-4023. 569 See infra, para 387.
570 Exhibit P133.
571 MinisterRudolf,T5612-5613. Case No IT-01-42-T
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31 January 2005
F. How did the Old Town come to be shelled?
176. The evidence reviewed to this point shows that on 6 December 1991 the
Old Town of Dubrovnik was heavily shelled over some ten and a half hours. As is
detailed later in this decision, there was extensive damage to property, even
though the Old Town was a World Heritage protected site. There was also injury
to, and death of, civilians from the shelling.572 It should be clearly recorded that
at the time of the shelling the Old Town was occupied by a civilian population.
The Old Town was their place of living and working. Because of the blockade
that had been enforced by the JNA the population of Dubrovnik, including the Old
Town, had been without normal running water and electricity supplies for some
weeks and essential products to sustain the population, such as food and
medical supplies, were in extremely short supply.573
1. Extent of damage
177. In the course of the Defence case the view was pursued, by submission
and in evidence, that in truth there had been little or no damage to the Old
Town.574 Indeed, the report of the “Commission” of JNA officers who visited the
Old Town on 8 December 1991 to assess the allegations of damage tended
strongly to advance this appreciation of the position. 575 The evidence shows
that this Commission failed to inspect areas of the Old Town so that some
damage was not considered at all.576 Further, the report submitted by the
Commission failed to represent the true position as it has been established by
the evidence before the Chamber.577 A short film made by the Commission and
which accompanied their report demonstrates how misleading were the views of
the Commission in the report.578 Another film, made by the Croatian interests
and which recorded the inspection by the Commission, demonstrates this even
more effectively.579
178. In the Chamber’s finding the report was not a genuine attempt to record the
true state of the damage which existed in the Old Town from the attack on 6
December 1991. There had been extensive cleaning-up operations by the people
of Dubrovnik on the evening of 6 December and on 7 and 8 December 1991. 580
Even allowing for this, the damage which the report purported to identify,
and the observations as to the cause of some of that damage, as viewed by the
Commission, represent a serious understatement of the true state of affairs and
of the extent of the
572Seeinfraparas250;259;270;276and330. 573
AdrienStringer,T310;PaulDavies,T571;SlavkoGrubi{i},T1028;\eloJusi},T3060. 574
DefenceFinalBrief,paras510-521. 575 AdmiralJoki},T4109-4111. 576
ExhibitP61,tab39;SlobodanVukovi},T5990-5993;5827. 577 Seesupra,para174. 578 ExhibitP145. 579
ExhibitP78. 580 NikolaJovi},T2964-2965;WitnessA,T3635-3636;SlobodanVukovi},T5914.
Case No IT-01-42-T
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actual damage from the shelling on 6 December 1991 and its seriousness. In the
Chamber’s finding the report represents an attempt to minimise the damage
caused on 6 December 1991 and, in some respects, to misrepresent the causes
of that damage.
179. Notwithstanding the report of the JNA Commission, the evidence before the
Chamber establishes that there was widespread and substantial, i.e large scale,
damage to the Old Town from shelling on 6 December 1991. Later in these
reasons, the Chamber records its findings as to the nature and extent of the
damage, which it finds to be proved, to those buildings and structures in the Old
Town which were specifically particularised in the Indictment. 581 While that
damage in itself constituted, in the Chamber’s view, wide-spread destruction, it is
not the case that the Chamber finds that the damage inflicted on 6 December
1991 was confined to those particular findings. The Chamber is satisfied on the
evidence that there was other damage and that all told the damage extended
over a substantial part of the Old Town. The specific findings in this decision are
merely in respect of those buildings and structures, particularised in the
Indictment, in respect of which the Chamber is able to make specific findings that
damage caused on 6 December 1991 has been established to those particular
buildings, despite the evidential difficulties of identification of particular buildings.
It is only this particularised and proved damage, of course, which will be taken
into account for the purposes of determining guilt or innocence.
2. Was damage deliberately inflicted by Croatian forces or interests?
180. One position for which the Defence contended is that any damage,
alternatively some of the damage, to the Old Town was in fact deliberately
inflicted by the Croatian defending forces or other Croatian interests. 582 It was
suggested that this was done to create a false picture of damage by the JNA to
the Old Town. In particular, it was advanced that damage was deliberately
inflicted by Croatian interests to buildings in the Old Town which were owned or
occupied by Serbian interests.583 Further motives for this might include anger
or revenge.
181. For reasons set out in our consideration of the issue of damage the
Chamber finds that these submissions are also without factual foundation. In
particular, as regards the proposition that buildings with shops “owned by” or
“connected to” people from Serbia and Montenegro were totally destroyed, 584 the
Chamber observes that the evidence on which the Defence bases its submission
is that in one of those shops Belgrade ready-made clothes were sold and two of
the
581Seeinfrapara326. 582 Defence Final Brief, para 518; see also, Exhibit P23. 583
DefenceFinalBrief,para518. 584 DefenceFinalBrief,para518.
Case No IT-01-42-T
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others were called “Titex” and “Kluz”.585 The conclusion as to the alleged
connection between “Titex” and Titograd (Podgorica), as well as the name “Kluz”
and a Belgrade manufacturer, were drawn by the Defence counsel with no
support in the evidence.586 Only one of those shops was explicitly identified
by witness \elo Jusi} as belonging to a Serbian.587 Further, the evidence of
Zineta Ogresta, on which the Defence also relies in this connection, is that the
warehouse of a shop located on the ground floor of the building where she lived
was called “Obu}a Beograd”.588 There is no evidence, however, that the shop
was owned by a Serbian. The Defence proposition thus appears to be without
evidentiary foundation. It also overlooks the fact that other occupancies of the
buildings had no connection with Serbian or Montenegrin interests. 589 On
the contrary, as detailed in this decision, there is a clear and strong body of
evidence, indeed an overwhelming body, that the damage inflicted in and to the
Old Town of Dubrovnik on 6 December 1991 was caused by the JNA shelling. 590
The Chamber so finds.
3. Did JNA forces fire only at Croatian military positions?
182. Yet a further Defence submission, and one which is somewhat inconsistent
with the submissions that have just been considered, is that any damage to the
Old Town on 6 December 1991 was a regrettable but unavoidable consequence
of artillery fire of the JNA targeted at Croatian military positions in and in the
immediate vicinity of the Old Town. The Defence submits that the attack on the
Old Town by the JNA was merely in response to Croatian fire from its
positions.591 There is evidence on which the Defence relies in support of this
proposition. There is also evidence to the contrary. The Chamber will examine
this contradictory evidence.
183. By way of general observation, to which the Chamber attaches significant
weight, the Chamber notes that by 6 December 1991 there were quite compelling
circumstances against the proposition that the Croatian defenders had defensive
military positions in the Old Town. To do so was a clear violation of the World
Heritage protected status of the Old Town. The Chamber accepts there was a
prevailing concern by the citizens of the Old Town not to violate the military free
status of the Old Town.592 That is the view of the Chamber, notwithstanding
suggestions in the evidence
585 \eloJusi},T3277-3280;ExhibitP78. 586 \eloJusi},T3277-3280. 587 \eloJusi},T3096. 588
ZinetaOgresta,T3454.
589 \eloJusi},T3280. 590 Seesupra,paras100;103and139. 591 DefenceFinalBrief,paras374and608. 592
CaptainNegodi},T5240;5242;TheevidenceshowsthattheOldTownwasgenerallyfreefrommilitaryposi
tions
(Nikola Jovi}, T 2966; Lucijana Peko, T 1877; 1955-1960; Captain Negodi}, T 5240-5242; \elo
Jusi}, T 3124- 3125; Zineta Ogresta T 3494; Mato Valjalo T 2012). The local authorities imposed
a ban on armed persons to enter the Old Town and special checks were carried out at the town
gates in order to enforce the ban (Nikola Jovi}, T 2988-2989; Captain Negodi}, T 5240-5241; Ivo
Vla{i}a T 3424-3425). However, a small number of soldiers
Case No IT-01-42-T
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that at times in earlier stages of the conflict there were violations of this by
Croatian defending forces.593 Whether or not that was so, in particular by early
December 1991, independent ECMM military monitors had again established
themselves at Dubrovnik and were specifically concerned inter alia to look out for
violations of ceasefire agreements.594 United Nations Agency officials had
also arrived, including the witness Colin Kaiser who was actually staying in the
Old Town on 5 and 6 December, for whom the protection, and military free
status, of the Old Town were matters of direct responsibility. 595 The events over
the preceding weeks had also attracted reporters and cameramen of the world
media to Dubrovnik and the Old Town.596
184. The presence of these various independent observers, who were alert to
observe activities in the Old Town especially any military operations, highlights
the improbability that the Croatian defenders would establish or utilise defensive
positions in the Old Town, or fire artillery or other weapons from the Old Town,
and that any such activity could go undetected. No one of the witnesses from
these independent interests who gave evidence observed any defensive
positions, any military activity, or any artillery or other firing from the Old Town on
5 or 6 December 1991.597
185. There was however Defence evidence to the contrary. A staff officer of 9
VPS, Captain Drljan, was at @arkovica for about an hour, perhaps between 0800
and 0900 hours, on 6 December 1991.598 He claimed to have observed a mortar
in the middle of the Stradun. According to the witness, the mortar was carried
into the Stradun and a shell was fired from it in the direction of Sr|. 599 The
whole process was said to be carried out within one minute. 600 The same
defence witness also spoke of what he inferred was a Croatian mortar firing from
behind the Orlando column outside the St Blaise church at the southern end of
the Stradun. The witness said that at 0830 hours he saw there flares of light,
which, in his view, were a result of shell firing. 601 In respect of this evidence
the Chamber observes that it has a body of evidence, which it accepts, that a
mortar needs to be mounted on a surface which will absorb the shock of the
firing. There is real danger to those firing if firing is attempted on a hard surface
such as the smooth stone of the
could occasionally be seen in the streets of the Old Town, sometimes with rifles or pistols (\or|e
Ciganovi}, T 2902; Nikola Jovi}, T 2985-2986; Colin Kaiser, T 2466; Mato Valjalo, T 2011;
Lieutenant-Colonel Stojanovi}, T 7816-7820; Captain Negodi}, T 5240). The Trial Chamber
disregards the evidence of Ivo Grbi} to the effect that no uniformed persons were present in the
Old Town, considering that it is in contradiction with the majority of the evidence on the issue and
the witness was by no means in a position to assess the situation in all the places within the town
walls, T 1415-1418. A similar testimony given by Slobodan Vukovi} is likewise to be approached
with caution, as that witness was not present in the Old Town on that day, until late evening, T
6144-6145; T 5825-5826.
593 AdmiralJoki},T4970-4972. 594 PerHvalkof,T2237-2238. 595 ColinKaiser,T2379-2380;2471-2480.
596 PaulDavies,T568-569. 597 LarsBrolund,T874;PerHvalkof,T2218-2219. 598 CaptainDrljan,T7703.
599 CaptainDrljan,T7704-7705;7711;7735-7736. 600 CaptainDrljan,T7735-7736.
Case No IT-01-42-T
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Stradun. If firing is to be attempted, special surface preparation, such as a bed of
sandbags or a rubber pad, is necessary to absorb the shock. 602 Captain Drljan
gave no evidence of observing any such surface preparation and the time he
suggested for the firing effectively precludes this. As regards the Orlando
column, the Chamber notes that the witness did not purport to see a weapon,
only flashes.603 The column itself is not visible at all from @arkovica because it is
right behind tall buildings.604 The witness inferred that a weapon was firing, he
says, on the basis of observing flashes. His evidence as to the time indicates that
daylight conditions prevailed. There is evidence that is hardly possible to see
such flashes in daylight.605As the witness could neither see the mortar, nor even
the Orlando column, the purported identification of firing flashes is extremely
unpersuasive. While the general atmospheric visibility is said to have been quite
good that day,606 the video and other evidence reveals there was already smoke
and haze over the Old Town by 0830 hours from the effects of over two hours of
shelling.607 That adversely affected visibility of the Old Town. The witness’
evidence also fails to deal satisfactorily with the issue how he could distinguish,
especially in those visibility conditions and at that distance, between the flash of
a weapon firing and the flash of an incoming mortar shell exploding. JNA shells
were exploding in the Old Town by that time.
186. It will be recalled that earlier in this decision the Chamber had reasons for
regarding as unsatisfactory this witness’ description of his conduct at
@arkovica.608 It was his evidence that he had been sent there by Warship-
Captain Zec to convey an order from Admiral Joki} to Captain Kova~evi} not to
fire on the Old Town. It is his evidence that, having conveyed that order, he then
saw it breached, but he took no action at the time, nor did he report the breach,
even though he was a staff officer of 9 VPS.609 The Chamber also notes that it is
not the evidence of Captain Drljan that he reported these supposed sightings to
Captain Kova~evi} or anyone else at @arkovica that morning. He did say that on
his return to the 9 VPS command post he reported to Captain Kozari} and
assumed the latter recorded his report in the war logbook. 610 No such record
has been identified.
601CaptainDrljan,T7711;7749-7752. 602 Seeinfra,para190;CaptainDrljan,T7736-7739. 603
CaptainDrljan,T7711. 604
ExhibitC1/2,“ViewoftheOldTownfrom@arkovica”and“Viewof3archesatGradskaKavanafrom@arko
vica”-
the Bell Tower is visible and only the top floor of the building located on the other side of the Luà
Square, where
the Orlando Column stands. See Annex III.E. 605 CaptainDrljan,T7752-7754. 606
CaptainDrljan,T7703-7704. 607 ExhibitP66at31:18-31:30;ExhibitP78at11:57,13:24. 608
Seesupra,para136. 609 CaptainDrljan,T7728-7729. 610 CaptainDrljan,T7740-7744.
Case No IT-01-42-T
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187. Captain Pepi} testified that in the morning of 6 December 1991 he observed
something that in his opinion was the firing of a mortar from a side street off the
Stradun to the left.611 He said he saw a flash spreading from the street level,
where in his view the mortar was positioned, to the top of the building. 612 The
witness did not see the object that caused that flash. As just discussed in respect
of the evidence of Captain Drljan, incoming mortar shells were exploding in the
Old Town at that time613 and the conditions were difficult for visibility of the Old
Town that morning, especially from that distance. This is not persuasive evidence
of the firing of a mortar near the Stradun, even if it is accepted that Captain Pepi}
saw a flash or flashes. Captain Pepi} further testified that at 0800 hours on 6
December 1991 he saw with his naked eye a mortar and an anti- aircraft weapon
at the entrance to the Old Town from the sea. He said he did not see them fire,
but heard from colleagues that fire had been opened from the latter weapon. 614
According to the witness, the mortar was first at the gate of the city walls
and then was brought to the pier at which boats were tied. His testimony was that
the anti-aircraft gun was on the tower of St. Luka, which is to the right from that
gate,615 when viewed from @arkovica. In the witness’s view, that gun was
positioned to fire “at Bosanka or rather at Sr|”. 616 The Chamber observes that
Captain Pepi} did not suggest that he saw firing by those weapons. There is an
immediate and obvious difficulty in accepting that weapons of that nature could
be identified with the naked eye at that distance as Captain Pepi} was at
@arkovica, which is in the order of 2,300 metres from that entrance to the Old
Town.617 There is the added difficulty that visibility was less than clear of that
location by 0800 hours on 6 December 1991 because of the explosions and fires,
as the evidence before us demonstrates. Apart from general considerations,
some of which have just been mentioned and others will be noted shortly, the
Chamber notes the evidence of Captain Negodi}, who was a senior officer in the
organisation of the Croatian defence that day, especially the artillery defence, 618
the effect of which was to deny the presence of any such weapons in those
locations. As discussed elsewhere in this decision, Captain Negodi} was, in the
Chamber’s assessment, an honest witness with a generally reliable recollection.
Captain Negodi} specifically denied the presence of any heavy weapon on the
city walls,619 or of a 52mm single-barrel gun on the tower of St. Luka and an anti-
aircraft machine-gun active in the old port area. 620 The Chamber observes that
both positions
611CaptainPepi},T7494;7549-7552. 612 CaptainPepi},T7549-7552. 613 CaptainPepi},T7558-7560. 614
CaptainPepi},T7493-7494;7496;7527-7530. 615 Captain Pepi}, T 7520-7521. The witness referred
to the tower to the right from the entrance. The only tower
corresponding to this description, on the map tendered into evidence under number P13, is the
tower of St Luka. 616 CaptainPepi},T7520-7521. 617 Exhibit C1/1, p 4. 618 CaptainNegodi},T5149. 619
CaptainNegodi},T5245. 620 CaptainNegodi},T5366-
5367.Thewitnessreferredinfacttothe“fishshop”.Thefishshop(Ribarnica)is,as
explained by Captain Ne{i}, “at the entrance to the Old Town from the side of the port”, T 8171.
Case No IT-01-42-T
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identified in Captain Pepi}’s evidence are entirely exposed with no protection
from an attack, and are therefore unlikely locations for such weapons in the
circumstances. The evidence as to the size and design of such an anti-aircraft
gun indicates the difficulty of manoeuvring such a weapon onto the top of the St
Luka tower, except by dismantling it and manually transporting the components,
which is a lengthy process. The surface of the pier is hard stone and unsuitable
for mortar firing except with special surface preparation. 621 The position of
the ECMM monitors offered a clear view of these positions, yet the presence or
firing of either of these weapons was not noted.
188. Captain Ne{i}, who on 6 December 1991 saw the Old Town of Dubrovnik
and the surrounding parts of the town from his observation post on the top of
@arkovica, stated that around noon an anti-aircraft gun located in the area of the
tower of St. Luka622 opened fire in the direction of his unit. 623 The gun,
according to the witness, was located in the middle window (there are three) on
the tower of the fort in the old port624 and one could fire from that position only at
him or at the sea.625 The evidence identified the St. Luka tower. Captain Ne{i}
further testified that in the morning he saw an 82-milimetre mortar firing at Sr|
from the most southern tower of the walls of the Old Town. 626 The Chamber
observes that on 6 December 1991 both Captain Pepi} and Captain Ne{i} were
next to each other on @arkovica.627 Despite this, neither purports to have seen
what the other saw. It is hardly conceivable that from the same point they noticed
completely different military positions, none of which corresponds with any of
those spotted by the other. This is most striking in the case of the tower of St.
Luka. Captain Pepi} talked about an anti-aircraft gun allegedly located on the top
of that tower and targeting Sr|. The anti-aircraft gun referred to by Captain Ne{i}
was located inside the tower, down near the sea, and was said to be firing out
through a window. In that position, it could only fire at the sea or @arkovica. 628
As has just been indicated, there are significant difficulties in the way of
manoeuvring a weapon of this type into either the position described by Captain
Pepić or that described by Captain Nešić. It is not conceivable that the same
weapon is being described by these two witnesses, having been moved from one
position to the other in the time between the two supposed sightings, especially
as there was an ongoing military action at the time. For reasons already
indicated, each suggested position for the anti- aircraft gun is highly
impracticable and therefore highly improbable. On top of the tower, it was
621ExhibitC1/1,p19. 622 Thewitnessreferredtoitas“theright-
handtowerintheOldTownport”,CaptainNe{i},T8172. 623 CaptainNe{i},T8172. 624
CaptainNe{i},T8292;ExhibitD113. 625 CaptainNe{i},T8270. 626 CaptainNe{i},T8170;8172,8255. 627
CaptainPepi},T7486-7489;ExhibitD103,positions1and4. 628 Exhibit C1/1, p 19; Exhibit C1/2, “View
of 3 windows of St. Luka from @arkovica” and “View of 3 windows of
St. Luka from St. John”.
Case No IT-01-42-T
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entirely exposed to JNA fire and could not readily be moved to a protected
position.629 Within the tower, it could not be used for its primary anti-aircraft
role, when the need for anti-aircraft defence was glaringly obvious from the last
JNA assault on 9-12 November. Nor could it be used against Srđ. As noted
above, each position was in the immediate and direct observation of the ECMM
Monitors from their location, yet the presence of a weapon at either location was
not observed.
189. The Chamber finds itself entirely convinced by the evidence of Captain
Negodić that the only active anti-aircraft weapon of the Croatian defenders in this
vicinity was located by the base of the cable car, 630 i.e. outside the Old Town in a
position which offered some protection from JNA fire but from which it could be
used against attacking JNA aircraft, Srđ and @arkovica. As regards the most
southern tower, the Chamber points out that the existence of any weapon in this
position was not recorded in the report concerning the use of his weapons
prepared by Captain Ne{i}.631 There is no explanation for the omission if there
was in truth such a sighting by him that day. The position would involve the
weapon being fired from a hard stone surface, or else suitable surface
preparation, and there is no evidence of this. The report of Captain Nešić also
refers to “the corner at the entrance to the Old Town (left one)”, where the barrel
of a cannon was allegedly noticed.632 However, no such weapon was indicated by
Captain Ne{i} in that place on the map of the Old Town showing the location of
alleged Croatian weapons on 6 December 1991. 633 No other information is
given about this alleged sighting. Nor is it said that it was observed firing. Finally,
both in his testimony and report, Captain Ne{i} referred to people carrying crates
in the area of the fish market at the entrance to the Old Town. 634 The
inference was that the crates contained ammunition. This seemed to be assumed
because the crates were in colour and shape like JNA ammunition crates. The
witness did not see the contents of those crates, nor anything being placed in or
removed from them, nor that they were moved from or to any weapon position. 635
190. The Chamber further notes that there is an abundance of other evidence
that contradicts the testimony of Captains Drljan, Pepi} and Ne{i}. Some
witnesses excluded the presence of any heavy weaponry, armaments or artillery
in the Old Town.636 Ivo Grbi}, Captain Negodi} and Ivo Vla{ica testified that no
anti-aircraft weapon was located in the Old Town. 637 Nikola Jovi} and Per Hvalkof
said there were no mortars there.638 According to Joèf Poje, a military expert,
the Old Town is not
629 Exhibit C1/1, p 19. 630 CaptainNegodi},T5215-5216;5221. 631
ExhibitD113;CaptainNe{i},T8236-8237. 632 ExhibitD113. 633 ExhibitD110. 634 CaptainNe{i},T8170-
8171;8240-8243;ExhibitD113. 635 CaptainNe{i},T8171. 636
\eloJusi}T3124,ZinetaOgrestaT3494,MatoValjaloT2011,PerHvalkofT2221. 637
IvoGrbi},T1451;CaptainNegodi},T5226;IvoVla{i}a,T3362. 638 NikolaJovi},T2966;3010-
3011;3014;PerHvalkof,T2219.
Case No IT-01-42-T
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a favourable place for the firing of a mortar because of the dense population, the
narrow streets and the high buildings, and because there are only hard firing
surfaces.639 Captain Negodi} pointed out that the Old Town was made of
stone and its streets are very narrow. It was his opinion that placing any weapon
there would have caused more damage to the surrounding houses than to the
enemy.640 The narrowness of the streets and the height of the buildings would
preclude a mortar being sighted on any anticipated JNA target in most locations.
191. The Chamber notes that, somewhat remarkably, no one of the Croatian
weapons or firing positions allegedly observed in the Old Town on 6 December
1991 was noticed by more than one witness. None of them was observed by
those on Sr| which permitted the best and closest view of the Old Town. The
other JNA witnesses were all at @arkovica, with Captain Kova~evi}, yet purport
to have made quite different observations. There is one other possible factor.
Captains Pepi} and Ne{i} stated that they were on @arkovica during the
November 1991 assault when shelling also occurred. 641 Given the lapse of time
since those dates, it is possible that the witnesses have confused observations of
events that took place during one or more earlier assaults.
192. The Chamber further observes that despite a clear order given by Admiral
Joki}, by which enemy positions discovered in the Old Town were to be reported
to the forward command post of the 9 VPS command, 642 the alleged presence of
military positions in the Old Town was not reported in the JNA war logbook,
which provides detailed information about Croatian military positions active on 6
December 1991.643 Some indication of military activity can be found in the
combat report of 6 December 1991 prepared by Warship-Captain Zec. That
document contains reference to “fire occasionally opened from the Stradun
region as well as the Old City Port”.644 The basis for that assertion is not
disclosed. That information is not supported by another combat report, written on
7 December 1991 by Admiral Joki}, containing reference to Croatian military
positions located only outside of the Old Town. 645 As both officers would have
had access to the same reports and messages, the difference between them is
of interest. It was Admiral Joki}’s view that the report by Warship-Captain Zec did
not “reflect the truth of what happened” and he did not agree with all the
details.646 Another report referring to positions in the Old Town is the one
prepared by Captain
JoèfPoje,T6224. 640
639
CaptainNegodi},T5241.PerHvalkofalsodoubtedwhethertheOldTownwassuitableformortars,T2219.
641 CaptainPepi}wasthereon8and9November1991,T7475-
7477;CaptainNe{i}wasthere,amongotherperiods,
between 10 and 13 November 1991, T 8201. 642 ExhibitD57,Section5.4;AdmiralJoki},T4972-4973.
643 ExhibitD96;CaptainPepi},T7569-7573;CaptainDrljan,T7742-7744;7772-7773. 644
ExhibitD62,Section1. 645 ExhibitD65,Section2. 646 AdmiralJoki},T4954-4956.
Case No IT-01-42-T
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Ne{i} on the targets fired on from @arkovica. However, the Chamber has found it
to be deliberately contrived.647
193. The Chamber concludes that the evidence of Croatian firing positions or
heavy weapons within the Old Town on 6 December 1991 is inconsistent,
improbable, and not credible. It further observes that the witnesses who claimed
to have seen weapons located at those positions were at the material time JNA
commanders or staff officers, or officers having responsibility for JNA artillery
firing on the day. It appears thus that the question whether JNA fire on the Old
Town was deliberate, or merely a response to defensive Croatian fire or other
military positions, could have been thought by them to have a direct impact on
the assessment of their performance or their exposure to disciplinary action.
When all factors are weighed, including the directly contradicting evidence, the
Chamber is entirely persuaded and finds that there were no Croatian firing
positions or heavy weapons in the Old Town or on its walls on 6 December 1991.
194. The further question arises whether, even though there were in truth no
Croatian firing positions or heavy weapons in the Old Town, it was believed by
those responsible for the JNA shelling of the Old Town that there were. In this
regard the primary finding of the Chamber is that the evidence of the existence of
such firing positions or heavy weapons is in each case false, not that it is merely
mistaken. Even if it were to be assumed for present purposes, however, that one,
some or all of the firing positions or heavy weapons referred to in the evidence
we have considered was believed to exist in the Old Town or on its walls, the
evidence discloses that they were not treated as posing any significant threat to
the JNA forces on the day. Captain Pepi} said that he did not pay much attention
to the anti-aircraft gun on the St. Luka tower because there was a different
priority at that time. He mentioned the Hotel Libertas. 648 After having been fired at
with one projectile, the anti-aircraft weapon allegedly located on the tower of St.
Luka became silent.649 Similarly, Captain Ne{i} considered that the
“neutralisation” of the anti-aircraft gun allegedly positioned inside the same tower
was not “any kind of major event” in the situation where, as he stated, they were
being constantly fired at.650 According to the evidence of both witnesses, the
identified Croatian weapons were successfully “neutralised” without much effort.
For the “elimination” of the mortar allegedly spotted on the most-southern tower
the evidence suggests that one shell from a recoilless gun was sufficient. 651
The people said to be carrying crates were fired at with two or three
projectiles, after which they did not return to the place where they had been
647Seesupra,para132. 648 CaptainPepi},T7527-7530. 649 CaptainNe{i},T8236. 650
CaptainNe{i},T8236. 651 CaptainNe{i},T8238.
Case No IT-01-42-T
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seen.652 The mortar, described by Captain Pepi}, became non-usable after fire
was opened at it from @arkovica.653 There is no evidence to indicate that the
mortar allegedly seen to fire in the Stradun, or the mortar allegedly firing from
behind the Orlando column, was ever targeted by JNA artillery. Those carrying
out the attack on Sr| did not identify either position or any of the other weapons
or positions discussed as a threat to them.
195. The Chamber further notes that the evidence of the alleged Croatian firing
positions, even were it to be assumed to be true or that it was believed to be true,
and if it were accepted in the version which is most favourable to the Defence,
would not provide any possible explanation for, or justification of, the nature,
extent and duration of the shelling of the Old Town that day, and the variety of
positions shelled. In the Chamber’s finding the evidence, even on the assumption
identified, would preclude a finding that the JNA artillery was merely firing at
Croatian military targets in the Old Town. There would be simply no relationship
in scale between the evidence offered as the reason for the attack, and the JNA
artillery response.
196. The Chamber now records aspects of the evidence of the Croatian military
positions. A detailed description of the Croatian military positions in the town of
Dubrovnik was given by Captain Negodi}, who commanded the Croatian artillery
defence on 6 December 1991, though not the anti-aircraft weapons. It was his
evidence that two 82mm mortars were located from 100 to 120 metres to the
east from the city walls of the Old Town, at Lazareti. As the main purpose of that
position was to prevent a possible attempt by JNA infantry to breakthrough from
the area between Bosanka and @arkovica, the mortars did not fire on 6
December 1991.654 Ammunition, which was in scarce supply because of the
blockade, had been stored in readiness near that position, underneath steps
leading down the wall. On 6 December 1991, two mortars and four shells were
there.655 Captain Negodi} testified that a combat position for an anti-aircraft
weapon was located outside the Old Town near the lower part of the cable-car
which goes up to Fort Sr|.656 This position is about 150 metres from the wall of
the Old Town. There was a position for an anti- aircraft weapon to the east from
the Old Town, in the Plo~e area, at Zlatni Potok. It is his evidence that the
weapon placed there did not fire on 6 December 1991. 657 Captain Negodi} said
that there was a group of 10 or 15 infantry men in Gradac Park whose task was
to prevent entry into a small harbour.658 He also mentioned that in the park
there was an alternative position for an anti-aircraft
652 Captain Ne{i}, T 8241-8243. In his report 4 projectiles are mentioned in this connection, Exhibit
D113. 653 CaptainPepi},T7527-7530. 654 CaptainNegodi},T5187-5189. 655 CaptainNegodi},T5194-
5195;AdmiralJoki},T4963-4966;ExhibitP146.
656 CaptainNegodi},T5221. 657 CaptainNegodi},T5225-5226. 658 CaptainNegodi},T5463-5464.
Case No IT-01-42-T
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weapon.659 Captain Negodi} stated that on 6 December 1991 a 76mm ZIS
cannon was positioned at Mala Petka. According to the witness, the weapon fired
with four shells towards the area of Pobre`je and Knezovi. Captain Negodi} said
that, subsequently, the ammunition from that position was transferred to the
position near the Iva Vojnovi}a street. 660 It was the Captain’s testimony that
even further to the northwest, near the camping ground of Solitudo, there was a
position for three 120mm mortars and three 82mm mortars. On 6 December
1991 those weapons fired towards the fortress at Sr| and Strin~jera. 661 A
position for a three-barrel cannon was located near Solitudo at Orsan, Lazaret,
which is far to the northwest from the Old Town. On 6 December 1991 that
weapon fired towards the area of Sr|.662 An anti-aircraft weapon, a mobile
20mm single-barrelled gun, was positioned at the bay near the Lapad Hotel. It
was deployed on 6 December 1991. 663 According to Captain Negodi}, a single-
barrel 128mm rocket-launcher was positioned on a small hill 150 metres north of
the Libertas Hotel. On 6 December 1991 it fired one rocket at @arkovica. 664 Two
82mm mortars were positioned near the SDK building. This is to the northwest
and well away from the Old Town. On 6 December 1991 they fired at the area of
the fortress of Sr|, as well as the @arkovica-Bosanka road. 665 The position was
so well hidden that even when it was firing, it was not visible from the JNA
positions.666 After 1130 hours on that day the mortars positioned there were
out of ammunition.667 Captain Negodi} testified that a 76mm ZIS cannon was
positioned under a bridge at the Iva Vojnovi}a street. The testimony of the
witness was that on 6 December 1991 that cannon fired with about 170 shells at
the area of the fortress of Sr| and at @arkovica.668 He further referred to a
Maljutka positioned near the President Hotel 669 and a recoilless cannon located at
a small bay at Solitudo,670 neither of which was deployed on 6 December 1991.
197. The Chamber notes that a number of the positions described by Captain
Negodi} were not referred to in the evidence of any JNA witness and in particular
they were not mentioned by the witnesses who participated in the attack on Sr|.
Therefore, the testimony of Captain Negodi} relating to those positions will be of
limited relevance to the analysis of the JNA shelling of the Old Town, or indeed of
the shelling of the wider Dubrovnik area. The Chamber found the evidence of
659 CaptainNegodi},T5215-5216. 660 CaptainNegodi},T5182-5186;5430;ExhibitP159. 661
CaptainNegodi},T5174-5175;5430;ExhibitP159. 662 CaptainNegodi},T5213-5214;ExhibitP160. 663
CaptainNegodi},T5215,5323;ExhibitP160. 664 CaptainNegodi},T5176-5179;ExhibitP159. 665
CaptainNegodi},T5186-5187. 666 CaptainNegodi},T5343. 667 CaptainNegodi},T5233and5428. 668
CaptainNegodi},T5180-5181,5395-5396,5422-5424. 669 CaptainNegodi},T5167-5168;ExhibitP159.
670 CaptainNegodi},T5170-5173;ExhibitP159.
Case No IT-01-42-T
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Captain Negodi} to be impressive for its factual foundation and thoroughness and
the apparent reliability. While he was not directly responsible for anti-aircraft
weapons he had a sound overview of them and a first hand knowledge of the
other artillery of the Croatian forces.
198. The Chamber must weigh other evidence, however, relating to possible
Croatian firing or other military positions not identified by Captain Negodi}.
Captain Ne{i} testified that he observed firing from the road which is lower and
parallel to the main road above Dubrovnik. According to the witness, it was a
“Flying Charlie”, i.e. a mortar mounted on a small truck. 671 It appears that the
weapon described by the witness did not pose a threat to the JNA, since the
witness’ unit did not attempt to neutralise it.672 According to Captain Ne{i}, there
was also a mortar in the area of the Excelsior Hotel. 673
199. Lieutenant Lemal said that fire from Croatian mortars located at Lapad was
directed in the direction of Sr| at around 0900 – 0930 hours in the morning of 6
December 1991, involving casualties among his soldiers. 674 He also testified
that Croatian mortars had been seen at Velika Petka, near the Ispod Petka
street.675 Lieutenant Lemal stated that he too observed a mobile mortar unit, he
called it a “Charlie”, moving along the Iva Vojnovi}a street from the Libertas Hotel
to Lenin’s Boulevard.676
200. It was Admiral Joki}’s evidence that on 6 December 1991 fire was opened
from Croatian positions located at the northern part of the Lapad peninsula,
referred to as Babin Kuk or Lazaret.677 While this could be an imprecise reference
to the Solitudo position identified by Captain Negodi}, the precise positions are
different. Lieutenant-Colonel Jovanovi} said that between 0600 and 0700 hours
Captain Kova~evi} had informed him about firing from that area, 678 as well as
after 0900 hours in the morning.679 A number of the Defence witnesses testified
that in the morning on 6 December 1991 heavy fire was opened from 82mm
mortars positioned at the tennis courts near the Libertas Hotel. 680 Captain
Pepi} and Lieutenant Pesi} spoke of two mortars, while Captain
671CaptainNe{i},T8174,8273. 672 CaptainNe{i},T8274-8275. 673
CaptainNe{i},T8177.AdmiralJoki}alsoreferredtoamortarpositionednearbytheExcelsiorHotel.Howev
er,the
position marked by the witness on map P146 is to the north-east from the hotel, T 4968-4969;
Exhibit P146. 674 LieutenantLemal,T7413-7415,7373-
7374;thewitnessstatedthathistroopsenteredSr|ataround0830hoursand
the fire from Lapad was opened within 30 minutes to 1 hour after that moment. 675
LieutenantLemal,T7357. 676 LieutenantLemal,T7356. 677
AdmiralJoki},T4092.Asregardsthenameofthatarea:Lieutenant-
ColonelJovanovi},T8119,andExhibitP159. 678 Lieutenant-ColonelJovanovi},T8082. 679 Lieutenant-
Colonel Jovanovi}, T 8119-8120; reference to mortar fire or Croatian defenders in that area is
made in
Exhibit D65. 680 Lieutenant-ColonelJovanovi},T8084-8085;8119-
8120;LieutenantLemal,T7356;7358(thewitnessreferredtoa
position near the letter K in “Kotorska Ulica” and numeral 20 on the map P10, which is the area of
the tennis courts); Captain Ne{i}, T 8174; 8272; Exhibit D111 (the witness spoke of a “clearing”
behind the Libertas Hotel, but the position marked by him on the map D111 corresponds with that
of the tennis courts); Captain Pepi}, T 7484-
Case No IT-01-42-T
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Ne{i} mentioned four. The firing from those mortars was said to have inflicted
losses to the JNA units attempting to enter the fortress of Sr|. 681 The
Chamber observes that despite having been present at Gospino Polje, which is
200-300 metres from the tennis courts,682 Captain Negodi} did not identify a firing
position at the tennis courts in his testimony. The Chamber records that whether
or not there were Croatian mortars firing from these tennis courts on 6 December
1991, it accepts that those on Sr| believed that there were and that JNA
defensive fire was directed to these tennis courts. The Chamber has also heard
testimony relating to Croatian military positions at Kantafig, Gru`, Nuncijata and
Sustjepan,683 as well as machine gun fire opened from near the Hotel
Argentina684 and a group of Croatian defenders allegedly located at the
Belvedere Hotel.685
201. Further, there are two places in the vicinity of the Old Town as to which the
Chamber heard a lot of conflicting evidence, viz. Bogi{i}a Park and Gradac Park.
Admiral Joki} testified that the information given to him was that four 82mm
mortars were positioned in the Bogi{i}a Park and fired at Sr| on 6 December
1991.686 Captain Ne{i} referred in his testimony to a mortar firing from that
park.687 While Ivo Grbi} said he had heard about members of the Croatian
army located in the park, that evidence did not refer specifically to 6 December
1991.688 However, it was the evidence of Captain Negodi} that two mortars
were placed in the Bogi{i}a Park, but only for one morning in the first half of
November 1991, most likely between the 8th and 13th. 689 Colin Kaiser confirmed
that he was surprised when an investigator from the Prosecution told him about
mortar fire allegedly opened from the Bogi{i}a Park, because from his mission the
witness had never seen anything that would indicate that Croatian defenders had
been operating such weapons so near the Old Town. 690
202. As regards Gradac Park, evidence has been presented concerning mortars
allegedly positioned there. Admiral Joki} said that, according to information
available to him, throughout the
7485; 7501; 7571; Lieutenant Pesi}, T 7898-7900; 7922-7923 (the witness mentioned tennis
courts at Babin Kuk, but in the absence of evidence of firing from any tennis courts at Babin Kuk
and in view of the evidence to the effect that the tennis courts from which fire was opened were
near the Libertas Hotel, the witness appears to have meant the latter place); Exhibit D65.
681 Lieutenant-Colonel Jovanovi}, T 8084-8085; Captain Pepi}, T 7485. 682
CaptainNegodi},T5233. 683 Nikola Jovi}, T 3010; 3018-3019; Captain Negodi}, T 5354; Mato
Valjalo, T 1998; 2056-2057; Lieutenant-Colonel
Jovanovi}, T 8082-8083; 8112-8113; Lieutenant Lemal, T 7359; Captain Pepi}, T 7569-7573;
Exhibits D96 (p 70)
and D65. 684 PerHvalkof,T2345. 685 WitnessA,T3687-3688;NikolaJovi},T3010;IvoVla{ica,T3415. 686
AdmiralJoki},T4966;ExhibitP146. 687
CaptainNe{i},T8177;ExhibitD111;thewitnessreferredtothe“parkbehindtheImperialHotel”.Fortheloca
tion
of the Imperial Hotel see Exhibit P10. 688 IvoGrbi},T1414-1418. 689 CaptainNegodi},T5191-
5192;5261;5338. 690 ColinKaiser,T2525.
Case No IT-01-42-T
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duration of the Dubrovnik operation, a 120mm mortar was located in Gradac
Park.691 He specifically referred to that military position as one of those at
which Croatian weapons were located on 6 December 1991. 692 Nikola Jovi}
believed that the Croatian army might have had some mortars or cannons at
Gradac Park.693 Ivan Mustac was even less specific saying that on 6 December
1991 one or several mortars were used in relation to the battle around the
fortress on Sr|, and he could not exclude that they were located at Gradac. 694
Captain Ne{i} testified that on 6 December 1991 he saw from @arkovica an
artillery piece located in Gradac Park. 695 In contrast, it was the evidence of
Captain Negodi} that there had never been any mortars positioned in Gradac
Park.696 There is also evidence that Gradac Park was used for a ZIS cannon.
On the video tendered by Ivo Grbi} there is footage from Gradac Park which
shows that a ZIS cannon is located there. 697 Captain Negodi} testified that a ZIS
cannon was positioned in Gradac Park towards the end of December 1991. 698
He also said that there was a group of 10 or 15 infantry men in Gradac Park
whose task was to prevent entry into a small harbour, 699 and that in the park
there was an alternative position for an anti-aircraft weapon. 700
203. The firing positions described in the preceding paragraphs are located
various distances from the Old Town. All are outside the Old Town. Some of
them are so remote from the Old Town that any attempt to neutralise them by the
JNA forces, even using the most imprecise weapons, could not affect the Old
Town. As regards the positions which are closer to the Old Town, the Chamber
heard expert evidence as to which positions in the vicinity of the Old Town, if
targeted by the JNA, would give rise to a risk of incidental shelling of the Old
Town.
204. Joèf Poje, a ballistics expert for the Prosecution, assessed the dispersion
patterns for mortar shells targeted at various positions in the vicinity of the Old
Town. It was assumed by Mr Poje that they would be fired at from @arkovica,
Bosanka, Uskoplje and Sr| by 82mm and 120mm mortars. The targets included
Plo~e, Bogi{i}a Park, a position located about 150-200 metres north of the Old
Town at the foot of the cable car, and Gradac Park. The expert concluded that
the targeting of any of those positions by the JNA forces would not lead to shells
falling on the Old Town, except for
691 AdmiralJoki},T3920-
3921.Thewitnessreferredtoitas“theparkneartheoldhospital”or“Pilepark”.Thepark near the old
hospital is Gradac Park, Zineta Ogresta, T 3498.
692 AdmiralJoki},T4965-4966. 693 NikolaJovi},T3010-3011. 694 IvanMustac,T1521. 695
CaptainNe{i},T8272.
696 CaptainNegodi},T5193-5194. 697 Ivo Grbi}, T 1419. Although the scene is included in the part of
the material purportedly relating to 4 November
1991, there is no evidence which would make it possible to verify the precise date of the footage
(Exhibit P66). Therefore, the footage has not much probative value, especially for the purpose of
establishing whether the military position was active on 6 December 1991.
698 CaptainNegodi},T5194. 699 CaptainNegodi},T5463-5464.
Case No IT-01-42-T
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the one position at the foot of the cable car to the north of the Old Town, if fired at
from Uskoplje with a 120mm mortar.701 This evidence was based on JNA
dispersion tables. Some of the target and firing positions assumed by Mr Poje
are not relevant because the evidence does not establish that they were targets
or firing points respectively.702 While both 82mm and 120mm dispersion
patterns are given for each firing position, no doubt out of caution, the evidence
shows that only one or other was used at each firing point. The measurement of
distances of target points to the Old Town was not accurate in every case, 703
which has an effect in one case in particular – the foot of the cable car 704– and
the Chamber notes that no account was taken of weather conditions on 6
December 1991,705 whereas weather conditions can affect the dispersion pattern
of shells as they land in the target area.
205. The Defence called another ballistics expert, Janko Vili~i}. The Chamber
observes that it is quite difficult to relate the factual basis on which this expert
formed his opinions to the evidence on which the Chamber must decide this
case. He has, for example, identified, as JNA firing positions for mortars,
locations which are not mentioned in the evidence led before the Chamber, and
he has not dealt with some positions which are shown to have been JNA firing
positions on 6 December 1991.706 As a further example, critical to the factual
basis on which he has reached a material opinion are calculations or deductions
he has made about the amount of ammunition that he believes must have been
expended by various JNA firing positions on the day. These deductions appear to
be based, inter alia, on a witness statement which is not in evidence. 707
Further, a war diary referred to by the expert in this connection, does not
contain information on which the expert appears to have based one of his
conclusions. Mr Vili~i} relies on that diary to show the number of shells fired from
three JNA positions,708 despite the fact that the diary makes no reference to firing
at any of the alleged Croatian positions mentioned in his report. The diary
provides detailed figures only in respect of the Croatian positions at Lazaret, the
Neptun Hotel, Libertas Hotel, Nuncijata and Sustjepan. 709 The expert’s
conclusion based on these figures was that the number of shells was
considerably lower than that required by JNA norms for neutralising firing
positions.710 Mr Vili~i} relies on the evidence of Captain Negodi} to show that
the presence of “Flying Charlie” vehicles in
700CaptainNegodi},T5215-5216. 701 JoèfPoje,T6208-6210;6217-6218;6222;ExhibitP184/2a;184/4.
702Joèf Poje admitted that if there were no 120mm mortars located at @arkovica, Bosanka and
Sr|, part of his
conclusions would be irrelevant, T 6318. 703 JoèfPoje,T6399-6410;6402-6404;6405. 704
JoèfPoje,T6402-6404. 705 JoèfPoje,T6321. 706 ExhibitD115,pp5-6. 707 ExhibitD115,fn66. 708
ExhibitD115,p89. 709 ExhibitD96,p68. 710 ExhibitD115,p89.
Case No IT-01-42-T
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the vicinity of the Old Town increased the risk of projectiles landing in the Old
Town,711 whereas that witness ruled out the possibility of such vehicles being
used by the Croatians.712 One critical factual basis for his most material opinion
is that at no time on 6 December 1991 did JNA forces ever target the Old
Town.713 This, in the Chamber’s finding, is an entirely false factual basis.
206. Mr Vili~i} also placed very considerable reliance on the weather conditions
which he assumed prevailed on 6 December 1991. It was his opinion that on 6
December 1991, these significantly affected the dispersion patterns for mortar
shells. However, he did not have actual weather details for 6 December 1991. 714
Instead, his opinion in this respect is based on assumed weather conditions
which are based on generally prevailing or average weather conditions for the
month of December.715 Wind conditions in particular affect his calculations. In
respect of the actual wind conditions on the day, there are clear visual indications
in the video evidence of wind conditions quite different from those assumed by
Mr Vili~i} for his calculations.716 The Chamber points out that the expert himself
regarded the wind direction as one of the most important meteorological
conditions and wrote in his report that wrongly determined weather conditions
could cause errors in preparing initial firing data. 717
207. It was assumed by Mr Vili~i} that JNA forces fired with 120mm mortars from
Ledenica, with 76mm ZIS cannons from the Vra{tica sector, with 82mm mortars
from the Dubac and Raj~evi}i sector, and with 82mm mortars from Strin~ijera.
His report considers as targets hypothetical Croatian positions at Sr|, Bogi{i}a
Park, Gradac Park, as well as positions located 200 metres east of Plo~e, 100
metres north of the Old Town and 500 metres west of the Old Town. 718 It was
the opinion of Mr Vili~i} that on 6 December 1991, given the meteorological
conditions he had assumed, firing with mortars from those assumed JNA firing
positions at any target which was less than 500 metres from the Old Town would
lead to at least some of the shells landing in the Old Town. 719 In his opinion,
500 metres was the minimum safe distance for a target. 720 It followed in his
opinion that by having firing positions within 500 metres of the Old Town, the
Croatian defenders imperilled the Old Town. His opinion went even further. It was
his opinion that all the damage to the Old Town on 6 December 1991 could have
been caused by JNA mortars targeted at
711ExhibitD115,pp88,97and98. 712 CaptainNegodi},T5234;5344-5345;5367. 713
ExhibitD115,p98;JankoVili~i},T8365. 714 Janko Vili~i}, T 8317. 715 ExhibitD115,Annex5. 716
TheexpertassumedthattherewasaBurawindon6December1991,T8317-
8319.ThemaindirectionoftheBura
wind is from north-east to south-west, T 8405, whereas the video evidence available to the
Chamber shows a wind
blowing from the south to the north, Exhibit P78; Exhibit P66 at 31:19. 717 ExhibitD115,p42. 718
JankoVili~i},T8305;8345;8346and8356. 719 JankoVili~i},T8349-8350. 720 JankoVili~i},T8348-8349.
Case No IT-01-42-T
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Croatian military positions outside the Old Town, but within 500 metres of it. In
other words, it is the effect of his opinion that none of the damage to the Old
Town was intended by the JNA. It did not result from intentional shelling of the
Old Town, but, in the conditions prevailing, occurred because the Croatian
defenders imperilled the Old Town by the placement of their military positions.
208. The Chamber is not able to accept the opinions of Mr Vili~i}. For the
reasons already indicated they are based, in material respects, on assumed
factual bases which do not accord with the evidence. In addition to those matters,
his opinions as to where JNA mortar shells would have predominantly fallen in
the Old Town do not accord with this Chamber’s findings as to the actual
distribution of damage in the Old Town.721 Further, the extent of damage is far
greater than is attributable to the number of shells he assumes the JNA fired that
day. And his assumptions do not allow for any deliberate targeting of the Old
Town, or of shipping in the old port immediately outside the Old Town, by the
JNA on 6 December 1991, whereas the evidence has established that each of
those things occurred.
209. There are even further reasons which caution against the acceptance of Mr
Vili~i}’s opinions. Even if it is assumed that all the Croatian military positions
relied on by Mr Vili~i}, which were within 500 metres of the Old Town, actually
existed on 6 December 1991, which is not the finding of the Chamber, the
evidence indicates that some of them were not known to the JNA on the day, or if
known were not considered worthy of serious attention. Croatian firing positions
at the cable car and in the Plo~e area, east of the Old Town, were mentioned
only by the officer in charge of the Croatian artillery, Captain Negodi}, while the
former JNA commanders and witnesses did not refer to them in their
testimony.722 Other positions in close proximity to the Old Town are said to
have been observed by some of the JNA witnesses.723 But, they were not
regarded as of primary concern, since they do not appear in JNA reports and
records. Only the report prepared by Captain Ne{i} makes reference to the
position at the tunnel near the Lovrijenac fortress, which in Captain Ne{i}’s
testimony was in Gradac Park.724 However, even if the report were to be
believed, which is not the position of the Chamber, it provides that the number of
shells fired at that position was five.725 Five is far less than required,
according to the references referred to by Mr Vili~i}, for “neutralising” an enemy
weapon. Therefore, Mr. Vili~i}’s calculations in this respect were on the basis of
far more JNA shells directed at this position than five. As pointed out above,
there were no
721 Exhibit D115, pp 94a and 94b; see infra the Chamber’s findings as to the objects damaged on
6 December 1991, paras 316-330; see Annex I.
722 CaptainPepi}eventestifiedthathedidnotobserveanyfiringfromtheslopesofSr|
intheareaoftheOldTown, T 7501.
723 Bogi{i}aParkandGradacPark,seesupraparas201-202. 724
ExhibitD113;CaptainNe{i},T8174and8272.
Case No IT-01-42-T
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attempts to fire at the “Flying Charlie” allegedly observed by Captain Ne{i}, 726 the
presence of which, in the opinion of Mr Vili~i}, increased the number of impacts
of mortar shells within the walls of the Old Town. The attackers seem to have
been much more focused on the firing positions well outside the Old Town,
especially near the Libertas Hotel and at Babin Kuk, and also at Solitudo or
Lazaret.727The Chamber considers that in view of these matters the issue
whether the targeting of firing points in close proximity to the Old Town led to the
damage on 6 December 1991 becomes theoretical rather than real.
210. It should also be noted that in an apparent attempt to be of as much
assistance as possible to the Chamber, the Prosecution expert, Mr Poje,
assumed that there was targeting by the JNA of each of the Croatian military
positions identified in his report. That is not shown to be the case. The reports of
both experts should not be taken as evidence that the Croatian positions
assumed in those reports were in fact targeted. In the case of the Defence
expert, Mr Vili~i}, but not in the case of the Prosecution expert, Mr Poje, Mr Vili~i}
went on to express opinions which assumed that there was targeting of those
Croatian positions, i.e. the opinion that all the damage to the Old Town could
have been caused by JNA mortars targeted at Croatian positions outside the Old
Town. The evidence does not support that assumption, nor does it provide a
foundation for the view that all of them might have been targeted. As Mr Poje did
not venture into such issues, his report is not affected in this respect. On another
aspect, the Chamber accepts that regard is appropriate to the weather conditions
on 6 December 1991 in assessing the dispersion to be anticipated of mortar
shells fired at specific targets. As this is not apparently taken into account by Mr
Poje, his opinion cannot be accepted without a degree of reservation. There are
other differences between the approaches of the two experts but, in the
Chamber’s appreciation of the issues they raise, what has been considered
already is sufficient to indicate why neither report is able to be directly applied by
the Chamber. While Mr Poje’s report can only be accepted by the Chamber with
reservation, the Chamber finds it is unable to accept the opinions of Mr Vili~i}
because there are so many matters on which his report is based which are not
established, or which are contradicted by the evidence.
211. In the Chamber’s finding, the most that can be made of the evidence of the
experts is that if Croatian military positions, outside, but in close proximity to, the
Old Town, had in fact been targeted by JNA mortars on 6 December 1991, it is
possible that some of the shells fired might have fallen within the Old Town. For
reasons already given, few of the possible Croatian military targets considered by
the experts were the subject of JNA targeting by mortars, and none of them were
the subject of intensive or prolonged firing. In view of the above-mentioned
shortcomings of the expert
725ExhibitD113. 726 CaptainNe{i},T8274. 727 CaptainPepi},T7527-
7530;ExhibitD113;ExhibitD96,pp67-75.
Case No IT-01-42-T
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reports and the differences between them, the Chamber is unable to rely
exclusively on one or the other in determining which targets in close proximity to
the Old Town could give rise to a risk of incidental shelling of the Old Town.
Given the seriousness of its reservations in respect of the report of Mr Vili~i} and
the disparity between his opinions and those of Mr Poje, the Chamber is not able
to accept his opinion that targeting a position less than 500 metres from the Old
Town walls could result in mortar shells landing in the Old Town on 6 December
1991. In any event, the Chamber observes that both expert reports almost
concordantly state that the alleged positions at the Bogi{i}a and Gradac Parks,
which are the only two positions in the vicinity of the Old Town identified by some
JNA witnesses, could not pose a significant threat to the Old Town. Even the
report of Mr Vili~i} states that the shelling of the Bogi{i}a Park would not result in
shells landing in the Old Town once corrections had been made to the firing
data.728 On the other hand, the only target in close proximity to the Old Town,
which both experts regarded as dangerous to the Old Town, was the position at
the foot of the cable car.729 This was referred to only in the testimony of Captain
Negodi}. Neither the JNA witnesses nor the JNA reports or other documents
make reference to that position. There is no evidence that this position was
actually targeted by the JNA on 6 December 1991.
212. At trial the suggestion was put to some witnesses that the shelling of the
Old Town resulted from errors made by the Croatian defenders firing in particular
from the area of Babin Kuk. However, the Chamber notes, for example, that the
firing position at the Solitudo camp is located at some distance from the Old
Town and the direct line from there to @arkovica does not pass over the Old
Town but to the landward side of it. 730 Therefore, this suggestion does not
appear to be a practical reality. As regards the position under the bridge at Iva
Vojnovi}a Street, the ZIS-cannon placed there could not successfully target the
Old Town, because it is a direct line-of-sight firing weapon and the Old Town
cannot be seen from that position.731 The possibility of the Croatians firing
erroneously into the Old Town was directly discounted by Captain Negodi}, who
pointed out that the trajectories of missiles fired towards Sr| and @arkovica did
not pass over the Old Town.732 The witness also ruled out a suggestion that any
of the Croatian units or individuals would have fired into the Old Town
intentionally.733 Joèf Poje was of a similar view as regards the trajectories and
described the probability of erroneous targeting of the Old Town as “very small
and above all
728ExhibitD115,pp51-53;59-60. 729 Exhibit P184/5. The report of Mr Vili~i} does not refer to the foot
of the cable car itself, but to a position located
100 metres north of the Old Town. However, the location of that position is very close to that of
the cable car.
Exhibit D115, pp 77-85; T 8345. 730 Exhibit C1/1, p 10. 731 ExhibitC1/1,p12. 732
CaptainNegodi},T5276. 733 CaptainNegodi},T5276.
Case No IT-01-42-T
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theoretical”.734 The Chamber regards the suggestion of intentional targeting to
be extreme and so improbable or theoretical that it can be disregarded. With
regard to the suggestion that error by the Croatian artillery caused damage to the
Old Town, the only support in the evidence is an opinion expressed by the
Defence expert, Mr Vili~i}, that one shell hole in the pavement of Stradun, near
the St Blaise church, was caused by a mortar shell from the west. Mr Vili~i} noted
that debris had been thrown to the west of the hole, while concrete slabs were
raised on the eastern side of the hole. 735 He was of the view that the material
coming from the hole was thrown backwards to the side where the angle of the
mortar projectile was smaller relative to the ground. On this basis Mr Vili~i}
concluded that the shell must have come from the west. 736 The Chamber
approaches this testimony with caution, as the expert did not inspect the place
himself and relied only on video shots, nor was there any certainty that the
material around the hole had not been moved before the video had been
made.737 This is of particular importance in view of the evidence of extensive
cleaning-up operations after the shelling,738 some evidence of which in that
vicinity can be seen in the video. Importantly, this proposition of Mr Vili~i} was not
put to the Prosecution expert, so that there has been no opportunity for the
Prosecution expert to assist the Chamber on this issue. The Chamber considers
that, given its weak foundation and the abundance of evidence to the contrary,
this proposition must be disregarded.
213. There is some other evidence of relevance in this context. Witness B
testified that on 6 December 1991 the JNA soldiers on @arkovica were free to
target whatever they wanted.739 He did not hear anyone mention that they were
targeting a military position in the Old Town. 740 According to Witness B, Captain
Kova~evi} said that if Dubrovnik did not surrender by a certain time, it would be
attacked.741 Similarly, Captain Negodi} gave evidence of having overheard an
intercepted conversation between a JNA soldier and a captain, during which the
latter said that everything was a target within the walls of the Old Town. 742
214. In view of the foregoing, the Chamber finds that the shelling of the Old
Town on 6 December 1991 was not a JNA response at Croatian firing or other
military positions, actual or believed, in the Old Town, nor was it caused by firing
errors by the Croatian artillery or by deliberate targeting of the Old Town by
Croatian forces. In part the JNA forces did target Croatian firing and other military
positions, actual or believed, in Dubrovnik, but none of them were in the
734JoèfPoje,T6232;ExhibitP184/1,p27. 735 ExhibitP78at19:27;ExhibitP145at00:58. 736
JankoVili~i},T8361-8363;8369-8380;8500-8504. 737 JankoVili~i},T8380-8381. 738
Seesupra,para178. 739 WitnessB,T5046-5047. 740 WitnessB,T5047. 741 WitnessB,T5103.
Case No IT-01-42-T
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Old Town. These Croatian positions were also too distant from the Old Town to
put it in danger of unintended incidental fall of JNA shells targeted at those
Croatian positions. It is the finding of the Chamber that the cause of the
established extensive and large-scale damage to the Old Town was deliberate
shelling of the Old Town on 6 December 1991, not only by JNA mortars but also
by other JNA weapons such as ZIS and recoilless cannons and Maljutka rockets.
742CaptainNegodi},T5266-5267. Case No IT-01-42-T
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V. JURISDICTION UNDER ARTICLE 3 OF THE STATUTE
A. Existence of an armed conflict and nexus between the acts of the Accused
and the armed conflict
215. All the crimes contained in the Indictment are charged under Article 3 of the
Statute of this Tribunal. For the applicability of Article 3 of the Statute two
preliminary requirements must be satisfied. First, there must have been an
armed conflict at the time the offences were allegedly committed. 743 Secondly,
there must be a close nexus between the armed conflict and the alleged offence,
meaning that the acts of the accused must be “closely related” to the
hostilities.744 The Appeals Chamber considered that the armed conflict “need
not have been causal to the commission of the crime, but the existence of an
armed conflict must, at a minimum, have played a substantial part in the
perpetrator’s ability to commit it, his decision to commit it, the manner in which it
was committed or the purpose for which it was committed”. 745
216. With regard to the issue of the nature of the conflict, it has been established
in the jurisprudence of the Tribunal that Article 3 of the Statute is applicable
regardless of the nature of the conflict. 746 In the present case, while the
Prosecution alleged in the Indictment that an international armed conflict and
partial occupation existed in Croatia at the time of the offences, 747 both parties
concur in saying that the nature of the conflict does not constitute an element of
any of the crimes with which the Accused is charged. The Chamber will therefore
forbear from pronouncing on the matter and limit itself to the analysis, where
necessary, of the applicability of the international treaties on which specific
counts are based.
217. As will be apparent from what has been said already in this decision, the
evidence establishes that there was an armed conflict between the JNA and the
Croatian armed forces throughout the period of the Indictment. 748 These were
each forces of governmental authorities, whether of different States or within the
one State need not be determined. The offences alleged in the Indictment all
relate to the shelling of the Old Town of Dubrovnik, which was a significant part
of this armed conflict. It follows that the acts with which the Accused is charged
were committed during an armed conflict and were closely related to that conflict.
743 As the Appeals Chamber ruled, “an armed conflict exists whenever there is a resort to
armed force between States or protracted armed violence between governmental authorities and
organised armed groups or between such groups within a State” (see Tadi} Jurisdiction Decision,
para 70).
744 See, among other authorities, Tadi} Jurisdiction Decision, para 70, Naletili} Trial Judgement
para 225, Krnojelac Trial Judgement, para 51.
745 KunaracAppealsJudgement,para58. 746
Tadi}JurisdictionDecision,para94,FurundìjaTrialJudgement,para132andêlebi}iTrialJudgement,p
ara314. 747 Indictment,para6. 748 Seesupra,paras99-119;121-145.
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B. The four Tadi} conditions
218. The Appeals Chamber in the Tadić case observed that Article 3 functions
as a “residual clause” designed to ensure that no serious violation of international
humanitarian law is taken away from the jurisdiction of the Tribunal. In the
Appeals Chamber’s view, this provision confers on the Tribunal jurisdiction over
any serious offence against international humanitarian law not covered by
Articles 2, 4 or 5 of the Statute, on the condition that the following requirements
are fulfilled: (i) the violation must constitute an infringement of a rule of
international humanitarian law; (ii) the rule must be customary in nature or, if it
belongs to treaty law, the required conditions must be met; (iii) the violation must
be serious, that is to say, it must constitute a breach of a rule protecting
important values, and the breach must involve grave consequences for the
victim; and (iv) the violation of the rule must entail, under customary or
conventional law, the individual criminal responsibility of the person breaching
the rule.749It is the view of the Chamber that these conditions must be fulfilled
whether the crime is expressly listed in Article 3 of the Statute or not. 750
Accordingly, the Chamber will discuss whether the offences with which the
Accused is charged meet the four Tadi} conditions.
1. Murder and cruel treatment
219. In the present case, the charges of cruel treatment and murder are brought
under common Article3(1)(a)of the Geneva Conventions. 751 At the outset, the
Chamber notes that the jurisprudence of the Tribunal in relation to common
Article 3 is now settled. The Chamber will therefore not discuss it in detail but
simply recall the main principles. First, it is well established that Article 3 of the
Statute covers violations of common Article 3.752 The crimes of murder and
cruel treatment undoubtedly breach a rule protecting important values and
involving grave consequences for the victims. Further, it is also undisputed that
common Article 3 forms part of
749Tadi}JurisdictionDecision,paras91and94. 750
TadićTrialJudgement,para610;ČelebićiTrialJudgement,para279;KunaracTrialJudgement,para403;
Kvočka
Trial Judgement, para 123; Krnojelac Trial Judgement, para 52; Vasiljević Trial Judgement, para
26; Stakić Trial
Judgement, para 580; Galić Trial Judgement, para 11; Brđanin Trial Judgement, para 129. 751
CommonArticle3(1)(a)oftheGenevaConventionsprovidesthat:
“In the case of armed conflict not of an international character occurring in the territory of one of
the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum,
the following provisions: Persons taking no active part in the hostilities, including members of
armed forces who have laid down their arms and those placed hors de combat by sickness,
wounds, detention, or any other cause, shall in all circumstances be treated humanely, without
any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other
similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place
whatsoever with respect to the above-mentioned persons: (a) Violence to life and person, in
particular murder of all kinds, mutilation, cruel treatment and torture; ₣...ğ”
752 Tadi} Jurisdiction Decision, para 89: “it can be held that Article 3 is a general clause covering
all violations of humanitarian law not falling under Article 2 or covered by Articles 4 or 5, more
specifically: ₣...ğ violations of common Article 3 and other customary rules on internal conflict
₣...ğ”. This finding was confirmed in the êlebi}i Appeals Judgement, at para 136.
Case No IT-01-42-T
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customary international law applicable to both internal and international armed
conflicts753 and that it entails individual criminal responsibility. 754 Thus, the
Chamber finds that the four Tadi} conditions are met in respect of these offences.
2. Attacks on civilians and civilian objects
(a) Attacks on civilians
220. The Chamber notes that Article 51 of Additional Protocol I and Article 13 of
Additional Protocol II, on which Count 3 is based, clearly set out a rule of
international humanitarian law. Therefore, the first Tadić condition is fulfilled. 755
As regards the second condition, the Chamber recalls the ruling given in the
present case and upheld by the Appeals Chamber, according to which the
prohibition of attacks on civilians stated in the Additional Protocols attained the
status of customary international law and the Additional Protocols’ provisions at
issue constitute a reaffirmation and reformulation of the existing customary
norms.756 It is to be noted that the Additional Protocols relate to specific types of
armed conflicts. However, the prohibition of attacks on civilians is included in
both Additional Protocols, of which Protocol I deals with international armed
conflicts and Protocol II with non-international armed conflicts. Therefore, the
nature of the conflict is of no relevance to the applicability of Article 3 of the
Statute. The Chamber thus finds that the second Tadić requirement is met.
221. As regards the third Tadić requirement, the prohibition of attacks on civilians
is one of the elementary rules governing the conduct of war and undoubtedly
protects “important values”.757 The Chamber considers that any breach of this
prohibition encroaches upon the fundamental principle of the distinction between
combatants and non-combatants.758 This principle has developed throughout the
history of armed conflict with the purpose of keeping civilians from the danger
arising from hostilities. The Chamber points out that attacks on civilians
jeopardise the lives or health of persons who do not take active part in combat. It
is of the view that the imminent risk of falling victim of an unlawful attack is in
itself an acute experience for civilians, who, unarmed and defenceless, find
themselves facing an army that has chosen them as its target. The Chamber
753 Tadi} Jurisdiction Decision, para 98 and 134; êlebi}i Appeals Judgement, para 139; Kunarac
Trial Judgement, para 406; Kvo~ka Trial Judgement, para 124.
754 Tadi} Jurisdiction Decision, para 129. While the Appeals Chamber found that common Article 3
contains no explicit reference to criminal liability for violation of its provisions, it relied on the
findings of the International Military Tribunal at Nuremberg, on State practice, national legislation,
including the law of the former Yugoslavia, Security Council resolutions and the agreement
reached under the auspices of the ICRC on 22 May 1992. Its finding was confirmed in the êlebi}i
Appeals Judgement, para 174.
755 Gali}TrialJudgement,para16. 756 Strugar Trial Chamber Decision on Jurisdiction, paras 17-21,
and Strugar Appeals Chamber Decision on
Jurisdiction, para 9; see also Tadi} Jurisdiction Decision, para 127 and Bla{ki} Appeals
Judgement, paras 157-158. 757 Gali} Trial Judgement, paras 27 and 45; ICRC Commentary on
Additional Protocols, p 615.
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emphasises that the categorical nature of the prohibition of such attacks 759 and its
prominent place among the rules of international humanitarian law make it
evident that the purpose of this prohibition is not only to save lives of civilians, but
also to spare them from the risk of being subjected to war atrocities. The
Chamber is of the opinion that the experiencing of such a risk by a civilian is in
itself a grave consequence of an unlawful attack, even if he or she, luckily,
survives the attack with no physical injury. Accordingly, the third requirement for
the applicability of Article 3 of the Statute is fulfilled.
222. With regard to the fourth Tadić condition, the Chamber reiterates the
Appeals Chamber’s statement that “a violation of [the rule prohibiting attacks on
civilians] entails individual criminal
responsibility”.760 In addition, the Chamber observes that at the material time
there existed “Regulations concerning the Application of the International Law of
War to the Armed Forces of SFRY”, which provided for criminal responsibility for
“war crimes or other serious violations of the law of war” and contained a list of
laws binding upon the armed forces of the SFRY, including Additional Protocols I
and II.761
(b) Attacks on civilian objects
223. The offence of attacking civilian objects is a breach of a rule of international
humanitarian law. As already ruled by the Chamber in the present case and
upheld by the Appeals Chamber, Article 52, referred to in respect of the count of
attacking civilian objects, is a reaffirmation and reformulation of a rule that had
previously attained the status of customary international law. 762
224. The Chamber observes that the prohibition of attacks on civilian objects is
set out only in Article 52 of Additional Protocol I, referred to in relation to Count 5.
Additional Protocol II does not contain provisions on attacking civilian objects.
Nonetheless, as the Appeals Chamber found, the rule prohibiting attacks on
civilian objects has evolved to become applicable also to conflicts of an internal
nature.763 The Appeals Chamber noted that already during the Spanish Civil War
the tendency to disregard the distinction between international and internal
armed conflicts could be observed. Both the republican Government and third
States insisted that certain rules applicable to
758ICRCCommentaryonAdditionalProtocols,p586. 759
“Thecivilianpopulationassuch,aswellasindividualcivilians,shallnotbetheobjectofattack.”(Article51(2)
of
Additional Protocol I). 760 StrugarAppealsChamberDecisiononJurisdiction,para10. 761
ExhibitP189,paras9and20;“Regulations”containprovisionsspecificallyprohibitingthemakingofcivilia
nsthe
direct object of combat operations (para 67) and making civilian facilities the object of attack or
reprisals (para 73). See also the examples of provisions of domestic laws penalising the crimes of
attacking civilians and civilian objects referred to in the Kordi} Appeals Judgement, fn 73.
762 Strugar Trial Chamber Decision on Jurisdiction, paras 17-21, and Strugar Appeals Chamber
Decision on Jurisdiction, para 9; see also Tadi} Jurisdiction Decision, para 127.
763 Tadi}JurisdictionDecision,para127. Case No IT-01-42-T
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international wars applied also to that war. Among those rules there was the
prohibition of attacks on non-military objectives.764 The Appeals Chamber
further referred to the 1970 General Assembly resolution concerning the
protection of civilians in “armed conflicts of all types”. In that resolution the
General Assembly affirmed a number of basic principles, including the prohibition
of making dwellings and other installations used only by civilian populations, as
well as places and areas designated for the sole protection of civilians, the object
of military operations.765 The Chamber therefore concludes that despite the
lack of a provision similar to Article 52 in Additional Protocol II, the general rule
prohibiting attacks on civilian objects also applies to internal conflicts.
Accordingly, the first and second jurisdictional requirements are met.
225. As regards the third Tadić condition, the Chamber notes that the prohibition
of attacks on civilian objects is aimed at protecting those objects from the danger
of being damaged during an attack. It further reiterates that a prohibition against
attacking civilian objects is a necessary complement to the protection of civilian
populations.766 The Chamber observes that in the above- mentioned 1970
resolution of the General Assembly the prohibition of making civilian dwellings
and installations the object of military operations was listed among the “basic
principles for the protection of civilian populations in armed conflicts”. Those
principles were reaffirmed because of the “need for measures to ensure the
better protection of human rights in armed conflicts”. The General Assembly also
emphasised that civilian populations were in “special need of increased
protection in time of armed conflicts”.767 The principle of distinction, which
obliges the parties to the conflict to distinguish between civilian objects and
military objectives, was considered “basic” by the drafters of Additional Protocol
I.768 The Chamber therefore finds that the prohibition at issue is a rule protecting
important values. Similarly to what it has found in respect of the attacks on
civilians, the Chamber considers that, in view of the fundamental nature of this
prohibition, any attack against civilian objects, even if it did not cause any
damage, can be considered a serious violation of international humanitarian
law.769 All the same, the Chamber recalls that the requirement of seriousness
contains also the element of gravity of consequences for the victim. The
Chamber is of the view that, unlike in the case of attacks on civilians, the offence
at hand may not necessarily meet the threshold of “grave consequences” if no
damage occurred. Therefore, the assessment of whether those consequences
were grave enough to bring the offence into the scope of
Tadi}JurisdictionDecision,para100. 765 Tadi} Jurisdiction Decision, para 111, referring to
764
Resolution 2675 “Basic principles for the protection of civilian
populations in armed conflicts”, adopted during the 25th Session of the General Assembly, on 9
December 1970,
available from http://www.un.org/documents/resga.htm. 766
StrugarTrialChamberDecisiononJurisdiction,para19. 767 Seesupra,footnote765. 768
Article48ofAdditionalProtocolI,entitled“Basicrule”,obligesthePartiestotheconflicttodistinguishatallti
mes
between civilian objects and military objectives. See also Kordi} Appeals Judgement, para 54.
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the Tribunal’s jurisdiction under Article 3 of the Statute should be carried out on
the basis of the facts of the case. The Chamber observes that in the present
case it is alleged that the attacks against civilian objects, with which the Accused
is charged, did incur damage to those objects. 770 It will thus pursue the
examination of the case on the assumption that the attacks as charged in the
Indictment did bring about grave consequences for their victims and the third
Tadić condition is met. The Chamber would only need to return to the analysis of
applicability of Article 3 of the Statute if the evidence on the alleged damage
were to fail to demonstrate the validity of the Prosecution allegations to such an
extent as to render it questionable whether the consequences of the attack were
grave for its victims. As will be seen later in this decision, that is not the case. 771
226. As recalled above, the fourth Tadić condition concerns individual criminal
responsibility. The Appeals Chamber has found that under customary
international law a violation of the rule prohibiting attacks on civilian objects
entails individual criminal responsibility.772 Furthermore, the Chamber recalls its
above findings as to the SFRY regulations establishing criminal responsibility for
violations of Additional Protocol I.773
3. Destruction and devastation of property, including cultural property
227. As to the first and the second Tadić conditions, the Chamber observes that
Article 3(b) is based on Article 23 of the Hague Convention (IV) of 1907 and the
annexed Regulations.774 Both The Hague Convention (IV) of 1907 and The
Hague Regulations are rules of international humanitarian law and they have
become part of customary international law. 775
228. Recognising that the Hague Regulations were made to apply only to
international armed conflicts, the Chamber will now examine whether the
prohibition contained in Article 3(b) of the Statute covers also non-international
armed conflicts. The rule at issue is closely related to the one prohibiting attacks
on civilian objects, even though certain elements of those two rules remain
769 This is to be distinguished, in the Chamber’s view, from the issue whether damage is also
an element of the crime of attacks on civilian objects. See infra, para 280.
770 Indictment,paras21and23. 771 Seeinfra,paras320;326-327. 772
StrugarAppealsChamberDecisiononJurisdiction,para10. 773 Seesupra,para222. 774 Hague
Convention (IV) respecting the Laws and Customs of War on Land and the Regulations annexed
thereto,
18 October 1907, Article 23: “In addition to the prohibition provided by special Conventions, it is
specially forbidden ₣...ğ to destroy or seize the enemy’s property, unless such destruction or
seizure be imperatively demanded by the necessities of war.”
775 Seeparas35and41oftheReportoftheSecretary-
Generalpursuanttoparagraph2ofSecurityCouncilResolution 808, 3 May 1993 (S/25704); Blaškić
Trial Judgement, para 168. The International Court of Justice explicitly confirmed the customary
law status of the Hague Regulations. It opined in its Advisory Opinion in 2004 that “The Court
considers that the provisions of the Hague Regulations have become part of customary law, as is
in fact recognized by all the participants in the proceedings before the Court.” The International
Court of Justice, Advisory Opinion on the “Legal Consequences of the Construction of a Wall in
the Occupied Palestinian Territory”, No. 131, 9 July 2004, para 89.
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distinct. Both rules serve the aim of protecting property from damage caused by
military operations. In addition, the offence of devastation charged against the
Accused is alleged to have occurred in the context of an attack against civilian
objects.776 Therefore, and having regard to its conclusion that the rule prohibiting
attacks on civilian objects applies to non-international armed conflicts, the
Chamber finds no reason to hold otherwise than that the prohibition contained in
Article 3 (b) of the Statute applies also to non-international armed conflicts. 777
229. Turning now to the crime charged under Article 3(d), the Chamber notes
that this provision is based on Article 27 of the Hague Regulations. 778
Moreover, protection of cultural property had developed already in earlier
codes.779 The relevant provisions of the Hague Convention for the Protection of
Cultural Property in the Event of Armed Conflict of 1954 780 confirm the earlier
codes.781 The Appeals Chamber in the Tadić case explicitly referred to Article 19
of the Hague
776Indictment,paras21and23. 777 Brđanin Trial Judgement, para 592, fn 1505. See also
Hadžihasanović 98bis Decision, paras 102 and 105. “The
physical characteristics of exercises of violence and their effects upon people and resources are
of course the same, assuming violence of comparable proportions, in an internal as in an
international conflict. It would thus seem fairly obvious that (...) a fundamental policy of minimum
unnecessary destruction is equally vital and applicable in one as in the other type of conflict”.
Myres S McDougal and Siegfried Wiessner, The International Law of War; Transnational coercion
and world public order, Dordrecht, Martinus Nijhoff Publishers, 1994, p 535.
778
Article27oftheHagueRegulationsreads:“Insiegesandbombardmentsallnecessarystepsmustbetaken
tospare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes,
historic monuments, hospitals, and places where the sick and wounded are collected, provided
they are not being used at the time for military purposes [...]” (emphasis added).
779
ThefirstindicationsthattheculturalpropertywastobeprotectedcameatthetimeofRenaissance.TheLieb
erCode in its Articles 35 and 36 provides for the protection of cultural property. The Brussels
Declaration of 1874 in its Articles 16 and 17 states that in sieges and bombardments the officer in
command of the attacking forces must take all necessary steps “to spare, as far as possible,
buildings dedicated to religion, art, science or charitable purposes”, additionally to the provisions
concerning protection of cultural property in occupied territories (Article 8). Although the
Declaration was not ratified it had influenced the future codifications of laws and had widely been
accepted as declaratory of customary international law leading to The Hague Convention Nos. IV
and IX of 1907. The Oxford Manual of the Institute of International Law of 1880 should also be
mentioned as it repeated almost word for word the relevant standards in this area laid down by
the Brussels Declaration. Jiří Toman, The Protection of Cultural Property in the Event of Armed
Conflict: Commentary on the Convention for the Protection of Cultural Property in the Event of
Armed Conflict and its Protocol, signed on 14 May, 1954 in the Hague, and on other instruments
of international law concerning such protection. Dartmouth, UNESCO Publishing: 1996, pp 4-10.
780
TheChamberisoftheopinionthattheinstitutionsandobjectsfallingunderArticle3(d)oftheStatuteareincl
uded into the definition of the “cultural property” provided in Article 1 of this Convention: “For the
purposes of the present Convention, the term ‘cultural property’ shall cover, irrespective of origin
or ownership:
(a) movable or immovable property of great importance to the cultural heritage of every people,
such as monuments of architecture, art or history, whether religious or secular; archaeological
sites; groups of buildings which, as a whole, are of historical or artistic interest; works of art;
manuscripts, books and other objects of artistic, historical or archaeological interest; as well as
scientific collections and important collections of books or archives or of reproductions of the
property defined above;
(b) buildings whose main and effective purpose is to preserve or Exhibit the movable cultural
property defined in sub-paragraph (a) such as museums, large libraries and depositories of
archives, and refuges intended to shelter, in the event of armed conflict, the movable cultural
property defined in sub-para (a); (c) centres containing a large amount of cultural property as
defined in sub-paras (a) and (b), to be known as ’centres containing monuments’.”
781
TheChamberrecallsthatthedevelopmentoftheprovisionsoftheHagueConventionof1954were“guided
bythe principles [...] established in the Conventions of The Hague of 1899 and of 1907 and in the
Washington Pact of 15 April 1935”, as it is stated in para 4 of its Preamble.
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Convention of 1954,782 as a treaty rule which formed part of customary
international law binding on parties to non-international armed conflicts. 783 More
generally, it found that the customary rules relating to the protection of cultural
property had developed to govern internal strife. 784 The Chamber additionally
notes that it is prohibited “to commit any act of hostility directed against [cultural
property]” both in Article 53 of Additional Protocol I relating to international armed
conflicts and Article 16 of Additional Protocol II governing non-international
armed conflicts.785
230. In view of the foregoing, the Chamber is satisfied that Article 3(d) of the
Statute is a rule of international humanitarian law which not only reflects
customary international law but is applicable to both international and non-
international armed conflicts. Accordingly, the first and second Tadić conditions
with regard to Article s 3(b) and 3(d) are met.
231. As to the third Tadić condition, the Chamber recalls its conclusion that the
offence of attacking civilian objects fulfils this condition when it results in damage
severe enough to involve “grave consequences” for its victims. 786 It is of the
view that, similarly to the attacks on civilian objects, the crime of devastation will
fall within the scope of the Tribunal’s jurisdiction under Article 3 of the Statute if
the damage to property is such as to “gravely” affect the victims of the crime.
Noting that one of the requirements of the crime is that the damage be on a large
scale, the Chamber has no doubt that the crime at hand is serious.
232. As regards the seriousness of the offence of damage to cultural property
(Article 3 (d)), the Chamber observes that such property is, by definition, of “great
importance to the cultural heritage of every people”. 787 It therefore considers
that, even though the victim of the offence at issue is to be understood broadly as
a “people”, rather than any particular individual, the offence can be said to
involve grave consequences for the victim. In the Jokić case, for instance, the
Trial Chamber noted
782Article19para1ofTheHagueConventionof1954states: In the event of an armed conflict not of an
international character occurring within the territory of one of the High Contracting Parties, each
party to the conflict shall be bound to apply, as a minimum, the provisions of the present
Convention which relate to respect for cultural property.
783
Tadi}JurisdictionDecision,para98;seeacontraryviewastothecustomarynatureofthisprincipleinFKals
hoven, L Zegveld, Constraints on the waging of war, ICRC, Geneva 2001, p 48.
784 Tadi} Jurisdiction Decision, para 127. In Br|anin Trial Judgement, it was held that “[i]nstitutions
dedicated to religion are protected [...] under customary international law,” para 595.
785 It becomes apparent from the wording of both articles, which accord protection to cultural
property “[w]ithout prejudice to the Provisions of the Hague Convention [of 1954]”, that Additional
Protocols I and II did not intend “to revise the existing rules on the subject, but that protection and
respect for cultural objects [was to be] confirmed”. ICRC Commentary on Additional Protocol I,
para 2046, p 640. “In the draft the ICRC did not include a provision relating to the protection of
cultural objects as this had been provided for by an international instrument especially designed
for this purpose already in 1954. [...] However, the Diplomatic Conference considered that the
Protocol should contain a provision of this type thereby revealing its concern for the cultural
heritage of humanity.”, paras 2039 and 2040. Furthermore, in cases of contradiction, the primacy
of the Hague Convention of 1954 over Article 53 of the Additional Protocol I was emphasized,
para 2046.
786 Seesupra,para225. 787 Article1(a)ofTheHagueConventionof1954.
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that the destruction and damage inflicted to the Old Town of Dubrovnik were very
serious crimes. It found that “since it is a serious violation of international
humanitarian law to attack civilian buildings, it is a crime of even greater
seriousness to direct an attack on an especially protected site, such as the Old
Town [of Dubrovnik].”788 In view of the foregoing, the Chamber finds that the
offences under Articles 3(b) and 3(d) of the Statute are serious violations of
international humanitarian law. Hence, the third Tadić condition is satisfied.
233. As to the fourth Tadić condition, the Chamber notes that Article 6 of the
Charter of the Nuremberg International Military Tribunal already provided for
individual criminal responsibility for war crimes, including devastation not justified
by military necessity, which is listed in Article 3(b) of the Statute. Concerning
Article 3(d) of the Statute, the Chamber recalls that Article 28 of the Hague
Convention of 1954 stipulates that “the high contracting parties undertake to
take, within the framework of their ordinary criminal jurisdiction, all necessary
steps to prosecute and impose penal or disciplinary sanctions upon those
persons, of whatever nationality, who commit or order to be committed a breach
of the Convention.” Furthermore, the case law of this Tribunal provides several
examples of individuals convicted under Articles 3(b) or 3(d), or both, of the
Statute.789 Accordingly, the Chamber finds that Articles 3(b) and 3(d) of the
Statute entail individual criminal responsibility. Thus, the fourth Tadić condition is
fulfilled.
788JokićSentencingJudgement,paras45and53. 789 Bla{kić Trial Judgement, VI. Disposition; Kordić
Trial Judgement, paras 834 and 836; Naletilić Trial Judgement,
para 763; Jokić Sentencing Judgement, para 14; Brðanin Trial Judgement, paras 1082 and 1152.
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VI. THE CHARGES A. Crimes against persons (Count 1 and 2)
1. Murder (Count 1)
234. The Indictment charges the Accused with criminal liability for murder as a
violation of the laws or customs of war under Article 3 of the Statute. The alleged
victims of this crime are Tonči Skočko and Pavo Urban. 790
(a) Law
235. The elements of murder as a violation of the laws or customs of war under
Article 3 of the Statute have been considered in many decisions of the Tribunal.
The issue which has called for most consideration is the mental element, i.e.
mens rea. It is now settled that the mens rea is not confined to cases where the
accused has a direct intent to kill or to cause serious bodily harm, but also
extends to cases where the accused has what is often referred to as an indirect
intent. While the precise expression of the appropriate indirect intent has varied
between decisions,791 it has been confirmed by the Appeals Chamber that the
awareness of a mere possibility that a crime will occur is not sufficient in the
context of ordering under Article 7(1) of the Statute. 792 The knowledge of a higher
degree of risk is required.793 In some cases the description of an indirect intent as
dolus eventualis may have obscured the issue as this could suggest that dolus
eventualis as understood and applied in a particular legal system had been
adopted as the standard in this Tribunal.
236. The following formulation appears to reflect the understanding which has
gained general acceptance in the jurisprudence of the Tribunal: to prove murder,
it must be established that death resulted from an act or omission of the accused,
committed with the intent either to kill or, in the absence of such a specific intent,
in the knowledge that death is a probable consequence of the act or omission. In
respect of this formulation it should be stressed that knowledge by the accused
that his act or omission might possibly cause death is not sufficient to establish
the necessary mens rea. The necessary mental state exists when the accused
knows that it is probable that his act or omission will cause death. The Chamber
notes that this formulation may prove to require amendment so that knowledge
that death or serious bodily harm is a probable consequence is sufficient to
establish the necessary mens rea, but the Chamber need not consider this in the
present
790Indictment,paras16and18. 791 Delali} Trial Judgement, para 439; Bla{ki} Trial Judgement, para
217; Kordi} Trial Judgement, para 236; Krsti}
Trial Judgement, para 495. 792 Bla{ki}AppealsJudgement,paras41and42. 793
Bla{ki}AppealsJudgement,paras41and42.
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case; it has not yet received authoritative acceptance. This definition would
appear to be applicable also to wilful killing and murder under Articles 2 and 5,
respectively.794 In addition, to prove murder under Article 3 of the Statute, it must
be shown that the victims were persons taking no active part in the hostilities. 795
The Chamber will proceed on this basis in the present case.
237. In this case the charges of murder arise out of an artillery attack on the Old
Town of Dubrovnik on 6 December 1991. The deaths that are the subject of the
murder charge are alleged to have resulted from that shelling by forces of the
JNA under the command of the Accused. The Chamber refers to its analysis later
in these reasons in relation to the charge of attacks on civilians in Count 3 in
which the Chamber finds the shelling to be unlawful. This finding is equally
applicable to Counts 1 and 2 and the Chamber will proceed on that basis.
238. A review of the Tribunal’s case-law reveals that deaths resulting from
shelling have formed the basis for charges of murder or wilful killing in at least
two cases to date. In the Gali} case, the Chamber by majority convicted the
accused on Count 5 of the indictment for murder under Article 5 of the Statute for
his participation in “a coordinated and protracted campaign of artillery and mortar
shelling onto civilian areas of Sarajevo and its civilian population.” 796 While the
Gali} Chamber did not specify the particular facts which, in its opinion, fulfilled the
intent requirement for murder in relation to this charge, a review of the specific
shelling incidents upon which the conviction is based reveals that while the
Chamber found that certain civilians were deliberately targeted, 797 it also made
reference to incidents where civilian deaths resulted from an attack which was
“indiscriminate as to its target (which nevertheless was primarily if not entirely a
residential neighbourhood), and was carried out recklessly, resulting in civilian
casualties”.798 The impression left is that both situations were taken to constitute
murder, although there is no specific consideration of the issue.
239. In the Kordi} case, wilful killings and murder were charged under Articles 2,
3 and 5 of the Statute, respectively for, inter alia, deaths that occurred as a result
of attacks on various towns and villages in the area of central Bosnia. The
specific facts upon which the Chamber relied in convicting the accused of murder
and wilful killing are not clearly identified in the judgement. However, the majority
of incidents analysed appear to be ones in which a civilian town or village was
attacked with artillery before being overrun by HVO soldiers who then carried out
individual killings. There is no specific attention to the issue. However civilian
deaths resulting from both the
794Seeforexample,Staki}TrialJudgement,para584(citingcollectedcases). 795
Seeforexample,Gali}TrialJudgement,para150(inthecontextofthedefinitionofmurderunderArticle5oft
he
Statute); see generally Naletili} Trial Judgement, para 248. 796
Prosecutorv.Gali},Indictment,Counts5to7. 797 Seeforexample,Gali}TrialJudgement,paras438-
496(incidentatMarkalemarket).
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initial artillery attack and the subsequent targeted killings appear to have been
considered as part of the factual matrix underlying the charges of murder and
wilful killing.799
240. On the basis of the foregoing analysis, it would seem that the jurisprudence
of the Tribunal may have accepted that where a civilian population is subject to
an attack such as an artillery attack, which results in civilian deaths, such deaths
may appropriately be characterised as murder, when the perpetrators had
knowledge of the probability that the attack would cause death. Whether or not
that is so, given the acceptance of an indirect intent as sufficient to establish the
necessary mens rea for murder and wilful killing, there appears to be no reason
in principle why proof of a deliberate artillery attack on a town occupied by a
civilian population would not be capable of demonstrating that the perpetrators
had knowledge of the probability that death would result. The Chamber will
proceed on this basis.
(b) Findings
241. The Prosecution submits that Tonči Skočko and Pavo Urban were killed in
the Old Town as it was being shelled by the JNA on 6 December 1991. 800 In
particular, the Prosecution submits that both victims died as a result of fatal
shrapnel injuries caused by shell explosions in the Old Town. 801 It further
submits that the evidence is capable of supporting a finding that Tonči Skočko
and Pavo Urban were both civilians taking no active part in the hostilities at the
time of their death.802
242. The Defence submits that Tonči Skočko and Pavo Urban did not die at the
time and place and in the manner alleged in the Indictment. 803 The Defence
further submits that the external examination of the bodies of Tonči Skočko and
Pavo Urban carried out by the pathologist, Dr Ciganovi}, on 7 December 1991,
was not executed in conformity with the requirements of the law then in force or
the “rules of forensic medicine”.804 It further submits that by virtue of the
external examination carried out by Dr Ciganovi}, it is impossible to establish the
precise time of death of Tonči Skočko and Pavo Urban. 805
(i) Tonči Skočko
798 Seeforexample,Gali}TrialJudgement,paras331-345. 799 Kordi}TrialJudgement,paras720-722. 800
ProsecutionFinalBrief,paras152;155and160. 801 ProsecutionFinalBrief,paras152;155and160.
802 ProsecutionFinalBrief,paras156and160. 803 DefenceFinalBrief,para504. 804
DefenceFinalBrief,paras499-501. 805 Defence Final Brief, para 503. The Defence also argues that
at the time of death, both Tonči Skočko and Pavo
Urban were not respecting the general alarm warning given to the citizens of Dubrovnik by the
sirens at 0715 hours on 6 December 1991, thus contributing to the serious consequences that
ensued: Defence Final Brief, para 509.
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243. Early in the morning, on 6 December 1991, Nikola Jovi} was in his shop on
Miha Pracata in the Old Town. Nikola Jovi}’s friend Tonči Skočko, a young man
of around 19 years, was also in the shop that morning. His father, Mato Skočko
was the manager.806 Nikola Jovi} described how, after the dust had settled from a
shell landing directly outside the shop, he and Tonči Skočko left the shop and
went out into the street.807 It was around 0800 hours.808 After barely a minute
or two outside, there was “a huge flash followed by an explosion. There was
dust, there was smoke, there were stones, there was rubble.” The two young
men immediately returned to the shop, where a few moments later, Tonči Skočko
fell to the floor.809 Efforts to resuscitate Tonči Skočko were in vain. After half
an hour, Mato Skočko decided to take his son to hospital, despite the continuous
shelling. When he returned some two hours later, he announced that Tonči
Skočko was dead.810
244. With regard to the civilian status, both Ivo Vla{ica and Nikola Jovi} gave
evidence that Tonči Skočko was a young man working with his father in a shop
located in the Old Town.811 Ivo Vla{ica gave evidence that around 0630
hours on 6 December 1991, he saw Tonči Skočko transporting food supplies in
the Old Town.812 Nikola Jovi} testified that at the time of death, Tonči Skočko
was wearing civilian clothing, a jersey with long sleeves and pants. 813 On
the basis of this evidence, the Chamber is satisfied that at the time of death
Tonči Skočko was a civilian, taking no active part in the hostilities.
245. As to the cause of death, Dr Ciganovi} who carried out an external
examination of Tonči Skočko’s body on 7 December 1991, the results of which
were compiled in a report, recorded that Tonči Skočko’s right lung had been torn
by a fragment of an explosive device. 814 Dr Ciganovi} stated that “the injury
bore all the characteristics of an injury that had been caused by an explosive
device”. Dr Ciganovi}, on the basis of his examination, concluded that the cause
of death was haemorrhage.815
246. Dr [o}, a pathologist called by the Defence, reviewed Dr Ciganovi}’s report
on the examination of Tonči Skočko’s body. During his testimony and in a report,
Dr [o} disputed the adequacy of the external examination of Tonči Skočko’s body
carried out by Dr Ciganovi}.816 According to Dr [o}, the external examination
carried out by Dr Ciganovi} cannot give complete
NikolaJovi},T2933. 807 NikolaJovi},T2941-2942. 808 NikolaJovi},T2336-2338. 809
806
NikolaJovi},T2941-2942. 810 NicolaJovi},T2943-2944. 811 IvoVla{ica,T3321-
3322;NikolaJovi},T3024-3025;T2933. 812 IvoVla{ica,T3356. 813 NikolaJovi},T3025-3026. 814
DrCiganovi},T2839;ExhibitP70. 815 DrCiganovi},T2839.
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and correct results on the cause of death of the deceased but can only yield
answers as to the mechanism of death.817 On the contrary, in Dr Ciganovi}’s
report, the cause of death (i.e. in the present case, “haemorrhage”) was reported.
However, during his testimony, Dr [o} confirmed that “lives can be lost when a
person is hit by shrapnel from as far away as 40 metres from where the person is
actually standing.”818
247. Dr [o} also argued that Dr Ciganovi}’s report was not compiled in conformity
with the rules of forensic medicine. According to these forensic rules he
contended, in a report, among other things, all wounds must be described, the
exact amount of fluid must be measured, and consistency and colour of the blood
must be recorded.819 Dr Ciganovi} on the other hand did not use the required
parameters in his report and made liberal remarks, such as, “there is a lot of
blood”.820
248. All of the formal legal requirements of the SFRY for post mortem
examinations may not have been observed by Dr Ciganovi}. While a relevant
consideration, in the circumstances of this case and in light of the direct evidence
of wounding and its apparent effects, that does not persuade the Chamber that
the findings of Dr Ciganovi} should be disregarded. The factual issue for the
Chamber is whether the death of Tonči Skočko was caused by a JNA shell. The
Chamber has received, and accepts, evidence of the physical circumstances in
which Tonči Skočko was suddenly injured at the time of the explosion of a shell
during the bombardment of the Old Town by JNA forces. Tonči Skočko died a
relatively short time thereafter. A skilled and experienced pathologist, Dr
Ciganovi} examined the body of Tonči Skočko, discovered that a fragment of
shrapnel had torn his right lung from which death resulted. In the experienced
opinion of Dr Ciganovi} the injury bore all the characteristics of an injury caused
by an explosive device. Both the requirements of the laws of the SFRY dealing
with post mortem examinations and the normal principles to be applied in
forensic examinations are designed to cover all possible situations. In this case
the circumstances are particular and limited. There was an explosion of a military
shell in the vicinity of Tonči Skočko. He was obviously wounded when this
occurred. Not long after he died. Examination revealed a shrapnel wound
characteristic of such an explosion which caused injuries which would normally
cause death if intervention could not prevent death. Given these circumstances
the Chamber is entirely satisfied that the fact of death and the cause of death are
established. In the Chamber’s finding, Ton~i Sko~ko died from haemorrhaging
caused by shrapnel wound from a shell explosion in the course of the JNA
artillery attack on the Old Town on 6 December 1991.
Dr[o},T7931-8012;ExhibitD124. 817 Dr[o},T7935-7937. 818 Dr[o},T7977. 819 Dr[o},T7933-7935.
816
Dr[o},T7939-7941. Case No IT-01-42-T
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249. With respect to the mens rea required for murder, the Chamber reiterates
its findings that the JNA attack on the Old Town was deliberate 821 and that the
perpetrators knew it to be populated. The Chamber finds that the perpetrators of
the attack can only have acted in the knowledge that the death of one or more of
the civilian population of the Old Town was a probable consequence of the
attack.
250. On the basis of the foregoing, and leaving aside for the present the question
of the Accused’s criminal responsibility, the Chamber finds that the elements of
the offence of murder are established in relation to Tonči Skočko.
(ii) Pavo Urban
251. On 6 December 1991, Witness A was in his apartment in the Old Town,
sheltering during the JNA shelling of the Old Town. Witness A knew Pavo Urban,
a professional photographer, who photographed damage in the Old Town. On
that day at around 1400 hours, Witness A heard the voices of Pavo Urban’s
colleagues who were standing in Uska Street to the west of his building. They
sounded panic-stricken. They were saying that Pavo Urban had been hit. At that
moment, Witness A ran to the window and saw a motionless body lying on the
ground below the city bell tower,822 on the southern side of the Sponza Palace.823
While Witness A could not recognise Pavo Urban at that distance, in court
he was able to identify Pavo Urban in a photograph taken of the body lying in the
same location where Witness A had seen it that day. 824 Witness A watched from
the window as an ambulance passed by his window. The next time he went to
look, the body was gone.825
252. With regard to the civilian status of Pavo Urban, a number of witnesses
confirmed that Pavo Urban was a photographer documenting the damage to
buildings in the Old Town.826 In the photograph taken of Pavo Urban’s body,
he appears wearing civilian clothing.827 There is no evidence which persuades
the Chamber that Pavo Urban was engaged in any military activities. The
821Seesupra,para214. 822 Witness A, T 3628-3629. In court Witness A identified the location of
Pavo Urban’s body in a video clip on
Dubrovnik. According to Witness A the body laid under the archway on the left hand side of the
city bell tower:
Exhibit P97; T 3635. 823
WitnessAmarkedonamapoftheOldTownandonanaerialphotographoftheOldTown:
(a)thelocationofPavo
Urban’s body; and (b) the location of Witness A’s apartment: Exhibits P95 and P96; T 3624, T
3631-3632. Witness Ivan Mustac gave evidence that he saw Pavo Urban on the south side of
Sponza Palace at around 1100 hours on 6 December 1991: Ivan Mustac, T 1470-1472.
824 WitnessA,T3629-3630andExhibitP94(photographofPavoUrban). 825 WitnessA,T3630-3631. 826
WitnessA,T3628;SlavkoGrubi{i},T1046-1047;MatoValjalo,T2003. 827
ExhibitP94.AccordingtoWitnessA,inthephotograph,PavoUrbaniswearingbluetrousers(jeans)andar
edvest;
his camera is in his left arm: Witness A, T 3629-3630.
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Chamber is satisfied that, at the time of death, Pavo Urban was a civilian, taking
no active part in the hostilities.
253. With regard to the cause of death, Dr Ciganovi} carried out an external
examination of Pavo Urban’s body on 7 December 1991. The results of this
examination were compiled in a report. They recorded that Pavo Urban had one
injury in the navel area, a wound caused by an explosive device. 828 Dr Ciganovi}
described in detail the characteristic features of such a wound:
First of all, an irregular and, as a rule, large entry opening with an irregular wound on the skin with
features contused and torn edges. And this contused edge of the wound, which is caused by the
entry of a projectile into the body, if the wound was inflicted by a nearby explosion, at close range
that is, there is also a sign of burning on the edges and around the edges of the wound; while
inside the wound – at the entry and inside the wound there is also a trace of the passage of the
projectile which is caused by the dust and the specks from the surface of the projectile. 829
Based on his examinations, Dr Ciganovi} concluded that it was an explosive
device that had caused the injury and that haemorrhage was the cause of
death.830
254. Dr [o}, a pathologist called by the Defence reviewed Dr Ciganovi}’s report
on the external examination of Pavo Urban’s body. As said above, throughout his
testimony and in a report, Dr [o} disputed the adequacy of the type of
examination carried out by Dr Ciganovi} on 7 December 1991. 831 Dr [o} argued
that the cause of death of Pavo Urban could not be determined by an external
examination of the body. In the case of Pavo Urban, Dr [o} also stressed that Dr
Ciganovi}, did not indicate the cause of Pavo Urban’s death. 832
255. The Chamber finds that Dr [o}’s criticism of the external examination carried
out by Dr Ciganovi} on Pavo Urban may have some formal or technical force, but
in the circumstances of the case and in light of Witness A’s evidence, it does not
give rise to a doubt as to the cause of his death, namely haemorrhage caused by
shrapnel from a shell explosion. On the basis of this evidence, the Chamber is
satisfied that Pavo Urban was killed in the course of the attack on the Old Town
on 6 December 1991.
256. The observations of the Chamber with respect to Dr [o}’s criticism of the
examination of the body of Tonči Skočko, and of the validity of Dr Ciganovi}’s
resulting findings, may be repeated in substance with respect to the examination
and findings of Dr Ciganovi} as to the cause of death
828 “... one injury in the navel area, an explosive wound on the surface of the skin which was
several centimetres in diameter, 5 or 6 centimetres, I believe it was, through which one could see
the damaged intestines and other abdominal organs, the profuse bleeding inside the abdominal
cavity, as well as the signs of blood flowing from the wound across the surrounding skin. Inside
the abdomen I found a fragment of the explosive device that had caused the damage and
haemorrhage was the cause of death”: Dr Ciganovi}, T 2746-2747. See also Exhibit P70.
829 DrCiganovi},T2747-2748. 830 DrCiganovi},T2747. 831 Dr[o},T7931-
8012;ExhibitD124.Seesupra,paras246-247.
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of Pavo Urban. The evidence established, in the Chamber’s finding, the
circumstances in which Pavo Urban was wounded by the explosion of a shell
during a JNA artillery barrage. Expert examination revealed that death was due
to wounding entirely consistent with such an explosion. The Chamber is entirely
satisfied and finds that the fact and cause of death of Pavo Urban are
established. The death was caused by haemorrhage due to a shrapnel wound
from a JNA shell explosion.
257. It should be observed that Dr Ciganovi}’s examination of Pavo Urban’s
body, and that of Tonči Skočko, were conducted under remarkable
circumstances which explain entirely, in the Chamber’s view, his non-observance
of more normal procedures. He had to examine the bodies of 19 deceased
people on 7 December 1991. There was no power for refrigeration or lighting and
there was no running water. Despite these restraints, in the Chamber’s finding,
he was able to draw on his clear expertise to reach entirely satisfactory and
persuasive findings which the Chamber accepts.
258. With respect to the mens rea required for murder, the Chamber repeats its
finding and reasoning in respect of Ton~i Sko~ko. 833
259. On the basis of the foregoing, leaving aside for the present the question of
the Accused’s criminal responsibility, the Chamber finds that the elements of the
offence of murder are established in relation to Pavo Urban.
2. Cruel treatment (Count 2)
260. The Indictment charges the Accused with criminal liability for cruel
treatment as a violation of the laws or customs of war under Article 3 of the
Statute. The alleged victims of this crime are Mato Valjalo and Ivo Vla{ica. 834
Similar allegations relating to Nikola Jovi}, also listed in the Indictment as a
victim of cruel treatment, were dismissed in the Chamber’s Decision on Rule
98bis.835
(a) Law
261. The crime of cruel treatment as a violation of the laws or customs of war
pursuant to Article 3 of the Statute, is defined in the jurisprudence of the Tribunal
as an intentional act or omission causing serious mental or physical suffering or
injury, or constituting a serious attack on
832Dr[o},T7984-7986. 833 Seesupra,para249. 834 Indictment,paras16and18. 835
TheChamberfoundtherethattheevidencerelatingtoNikolaJovi}’sinjuriesandmentalanguishwas“notc
apable
of establishing the element of serious mental or physical suffering or injury for the crime of cruel
treatment”, Rule 98bis Decision, para 46.
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human dignity.836 As regards the mens rea for the crime of cruel treatment,
the Chamber sees no reason to depart from the reasoning expounded above in
relation to the crime of murder. Accordingly, the Chamber holds that indirect
intent, i.e. knowledge that cruel treatment was a probable consequence of the
perpetrator’s act or omission, may also fulfil the intent requirement for this crime.
In addition, in order to prove cruel treatment under Article 3 of the Statute, it must
be shown that the victims were persons taking no active part in the hostilities. 837
(b) Findings
262. The Prosecution submits that Mato Valjalo and Ivo Vla{ica were injured in
the Old Town as it was being shelled on 6 December 1991. 838 It further submits
that they were both civilians taking no active part in the hostilities 839 and that their
injuries required extensive treatment and left them both with disabilities. 840
263. Regarding Ivo Vla{ica, the Defence submits that his testimony presents so
many inconsistencies, relating to both his identity and his actual injuries, that it
cannot be accepted.841 With respect to Mato Valjalo, the Defence submits that he
was not a civilian at the time he was wounded as he was on wartime duty, driving
persons who were actively involved in the hostilities. 842 It further states that his
medical records are inconsistent in their diagnosis and description of the
shrapnel wounds.843
(i) Ivo Vla{ica
264. Ivo Vla{ica testified that he had a store in the Old Town, located in the Od
Puca street, which he had opened on the morning of 6 December. 844
Thinking he heard a delivery truck in the street outside, he stepped out of
his shop to look. At that moment he felt the detonation of a shell and realised that
he had been wounded in his leg. 845 He stepped back into the store and fell to
the ground. Kate Buri}, one of his employees, attempted to stem the profuse
bleeding from the wound. Concerned about the well being of Ivo Vla{ica, Kate
Buri} finally succeeded in contacting a doctor.846 However, due to the
intensity of the shelling in the Old Town, no ambulance was able to
836
êlebi}iAppealsJudgement,para424;Vasiljevi}TrialJudgement,para234;Naletili}TrialJudgement,par
a246. 837 êlebi}iAppealsJudgement,para424. 838 ProsecutionFinalBrief,paras167and173. 839
ProsecutionFinalBrief,paras169-172;174.
840 ProsecutionFinalBrief,paras168-169;173-174. 841 DefenceFinalBrief,paras494-497. 842
DefenceFinalBrief,para491. 843 DefenceFinalBrief,para492.
844 IvoVla{ica,T3309-3310;3321. 845 IvoVla{ica,T3321-3322. 846 IvoVla{ica,T3322.
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attend the incident for the next two hours.847 Kate Buri} was instructed to try
and bandage the wound, which she did, using a shirt and some cotton pads from
the store. She was told by the doctor to keep Ivo Vla{ica awake at all costs, or he
might die. Ivo Vla{ica remained for over two hours in this highly precarious
situation, during which time there was almost continuous shelling, before another
of his employees risked driving his car through the Old Town to pick him up and
take him to hospital for treatment.848 He remained in hospital for two weeks849
and his leg is now 30 per cent disabled as a result of muscle deformation. 850
Thirteen years later, he stated, he stills feels some pain in his leg. 851
265. In support of Ivo Vla{ica’s evidence, the Prosecution has submitted hospital
records indicating that he received medical treatment, including surgery, from 6
to 21 December 1991 after having been diagnosed with shrapnel in his leg. 852
266. The Defence submits, however, that these medical records present
inconsistencies as to Ivo Vla{ica’s date of birth and as to which of his legs was
injured. The Chamber first notes that the reports are all consistent in stating that
Ivo Vla{ica was born in 1957 with the single exception of the specialist’s report
dated 6 December 1991, in which Ivo Vla{ica’s recorded date of birth is 1987. 853
The Chamber has no difficulty accepting that this is merely a mistake in the
translation of the document. The original document is handwritten and the year
indicated therein could well be read as either 1957 or 1987. The Chamber
therefore finds that this inconsistency is of no significance.
267. With regard to the issue of which leg was injured, 854 Ivo Vla{ica testified
that he was injured on his right leg, approximately 15 cm below the hip and 20
cm above the knee.855 The Chamber notes that this evidence is consistent
with several medical records, namely the specialist’s report, 856 the report of the
x-ray department857 and the anaesthesia chart,858 all dated 6 December 1991.
The Chamber also refers to the official records of the Croatian government
relating to
847 IvoVla{ica,T3322-3325. 848 IvoVla{ica,T3323-3325. 849 IvoVla{ica,T3333-3335. 850
IvoVla{ica,T3357-3359.Seealso,ExhibitsP86.1;P86.2andP86.3. 851 Ivo Vla{ica, T 3335.
852 ExhibitP211. 853 ExhibitP211,documentC. 854 In this respect, the Chamber notes that in his
expert report, Miodrag [o} states that “it is not possible to ascertain
definitely what leg- thigh was in question-left or right”, Exhibit D124, Ad. 3. 855 IvoVla{ica,T3327-
3328. 856 ExhibitP211,documentC. 857 ExhibitP211,documentD. 858 ExhibitP211,documentE.
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Ivo Vla{ica’s injury to the right leg.859 In contradiction with this evidence is what
appears to be the entry for Ivo Vla{ica in the hospital’s registration log 860 as well
as a joint statement of the head of the ward, Dr Jak{a [egedin, and the head of
the hospital, Dr Ljiljana Betica-Rodi}, dated 18 February 2004. 861 Both these
documents tend to suggest that Ivo Vla{ica was injured in his left leg. In spite of
these inconsistencies, the Chamber accepts Ivo Vla{ica’s testimony and the
reports of the medical practitioners who directly examined him at the time,
namely the specialist, the radiographer and the anaesthetist. The reference to
the left leg is in an administrative record and in a 2004 report which, no doubt,
reflected the administrative record and was not based on a medical
examination.862 The Chamber is therefore satisfied that IvoVla{ica was injured to
the right leg as he says.
268. There is no real dispute in the evidence that Ivo Vla{ica was taking no active
part in the hostilities863 and that his injuries were directly caused by the JNA
shelling of the Old Town on 6 December 1991.864
269. With respect to the mens rea required for cruel treatment, the Chamber
refers to its previous findings in relation to the murder charge. With appropriate
amendment of death to cruel treatment, that reasoning and the finding is equally
applicable to Count 2.
270. On the basis of the foregoing, and leaving aside the question of the
Accused’s criminal responsibility, the Chamber finds that the elements of the
crime of cruel treatment have been made out in relation to Ivo Vla{ica.
(ii) Mato Valjalo
271. Mato Valjalo, who had seen the shells falling on Mount Sr| early in the
morning of 6 December from his apartment in the Old Town, later set off for work
down the Stradun. After hearing some “terrible shooting”, he started to run. At
that moment a shell detonated about 40 to 50 metres behind him. 865 He felt a
terrible pain in his head and his legs and when he put his hand to
859 Exhibit P86.1 is an official decision of the Dubrovnik Office for Work, Health and Social Welfare
dated 10 June 1996, recognising Ivo Vla{ica as a “civilian war invalid” entitled to “disability
benefit” on account of “the wounding of his right upper leg”, an injury incurred when he was
“wounded by shrapnel on 6 December 1991”. Exhibit P86.2 is the document from the First
Instance Medical Committee for the medical examination of the person covered by the Law on
the Protection of Military and Civilian War Invalids dated 23 April 1996 and confirms that Ivo
Vla{ica is entitled to recognition of his invalidity on account of “the wounding of the right upper
leg”. Exhibit P86.3 is apparently a substantially illegible handwritten version of Exhibit P86.2.
860 ExhibitP211,documentA. 861 ExhibitP84. 862 The Chamber recalls that in cross-examination,
Miodrag [o} acknowledged that if there was going to be an
inaccuracy in the medical reports, it would be more likely be made by an administrative clerk than
by a surgeon, T 7992-7994. He added that he would have to trust the surgeon and assume that
there had been a mistake in the record entries, T 8010-8011.
863 IvoVla{icatestifiedthathewasworkinginhisfather’sgrocerystore,T3321-3322. 864 IvoVla{ica,T3321-
3322;seealso,ExhibitP211. 865 MatoValjalo,T2000-2001.
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his leg and his neck he discovered he was bleeding. 866 He managed to run
towards the central café in town where he sought shelter and received some
rudimentary assistance with his wounds.867 The emergency services were
alerted to his injuries, but due to the shelling, the ambulance was not able to
attend.868 He was eventually taken to a hospital in Lapad by two men in
camouflage uniform who were collecting the dead and wounded. 869 He was
found to have shrapnel lodged in his leg, head and lungs. 870 At the hospital,
the doctors managed to extract some of the shrapnel from his leg. 871
272. He was initially treated in the Dubrovnik Medical Centre from 6 to 12
December 1991 for several blast wounds, including a 4cm wound in the neck
region.872 Following this, he was transferred for further treatment in a Surgery
Clinic in Rijeka, where he remained until 9 January 1992, 873 before undertaking
rehabilitation in Opatija until 26 February 1992. 874 Official and medical records
also indicate that as a result of his injuries, Mato Valjalo is 30 per cent disabled 875
and suffers from psychoneurosis. It is noted that he is also affected by
degenerative rheumatism.876
273. Dr Miodrag [o} testified that the medical records were inconsistent as to the
amount or location of the shrapnel in Mato Valjalo’s body. 877 However, hospital
records confirm Mato Valjalo’s evidence that, on 6 December 1991, he was
wounded by an explosive device in the neck, thorax and right leg. 878 On the basis
of this evidence, the Chamber is satisfied that Mato Valjalo
866MatoValjalo,T2001-2002. 867 MatoValjalo,T2002. 868 MatoValjalo,T2002. 869 MatoValjalo,T2002-
2003. 870 Mato Valjalo, T 2004-2006. One of the pieces of shrapnel in Mato Valjalo’s lungs was
discovered later, when he
went for a check-up in Zagreb, T 2005-2006. 871 MatoValjalo,T2004-2005. 872 ExhibitP57. 873
MatoValjalo,T2004-2005;ExhibitP56. 874 MatoValjalo,T2009;ExhibitP56. 875 Exhibit P60 is an
official decision of the Dubrovnik Secretariat for Health, Social Welfare, Labour, Soldiers and
Disability Affaires dated 15 December 1993, recognising Mato Valjalo as a “disabled veteran”
entitled to “disability
allowance” on account of serious injuries sustained on 6 December 1991 on Stradun. 876
ExhibitsP56andP58. 877 Miodrag [o}, T 7954-7955; see also D124, Ad. 2. With regard to the injury
in the lung, Miodrag [o} admitted
during cross-examination that he had overlooked the reference thereto in Exhibit P56, T 7994-
7998. 878 Exhibit P58, a handwritten letter from the Dubrovnik Medical Centre states that Mato
Valjalo was “[w]ounded by an explosive device on 6 December 1991 in the head and neck, right
hemithorax, right thigh and lower leg”. Exhibit P57, a letter of discharge from the Dubrovnik
Medical Centre dated 12 December 1991, indicates that Mato Valjalo “was wounded on 6
December 1991. He sustained several blast wounds. The biggest ones were to the neck, 4cm,
and also entry-and-exit wounds to the medial side of the right thigh”. Exhibit P56, a release form
from the Clinical Hospital in Rijeka dated 9 January 1992, and which Miodrag [o} described as the
most comprehensive medical file, states that “[d]uring an explosion in Dubrovnik, the patient was
inflicted several wounds on the nuchal region, thorax, right upper leg and lower leg”, Miodrag [o},
T 7954-7955. According to Exhibit P59, a case history of the Dubrovnik Medical Centre dated 13
March 1995, Mato Valjalo, “[w]ounded by shell on 6 December 1991, received many injuries to
the head, chest and legs. He still has foreign bodies (shrapnel) in the right leg, lungs and
neck.”
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sustained serious injury in the course of the JNA artillery attack on the Old Town
on 6 December 1991.
274. With regard to the issue of Mato Valjalo’s civilian status, the evidence
indicates that he was a driver for the Dubrovnik Municipal Crisis Staff. 879 Mato
Valjalo testified that in this capacity, he was driving officials who came to
Dubrovnik to various places, including the Old Town. 880 On 6 December
19791, Mato Valjalo was injured on the Stradun while he was on his way to
work.881 The Chamber finds that there is nothing in the evidence to suggest that,
as a driver, in this capacity, he was taking an active part in the hostilities.
275. With regard to the required mens rea, the Chamber repeats its finding made
in respect of Ivo Vla{ica.882
276. On the basis of the foregoing, and leaving aside the question of the
Accused’s criminal responsibility, the Chamber finds that the elements of the
crime of cruel treatment have been made out in relation to Mato Valjalo.
879 MatoValjalotestifiedthathewasthedriverofthePresidentoftheCrisisStaff,MrZeljkoSiki},T1995-
1997.See also Exhibit P60, according to which Mato Valjalo sustained his injuries “while
performing his duty as a Dubrovnik Municipal Crisis Staff driver”.
880 MatoValjalo,T1995-1997. 881 MatoValjalo,T2000-2002. 882 Seesupra,para269.
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B. Attacks on civilians and civilian objects (Counts 3 and 5)
1. Law
277. The Accused is charged, under Count 3 of the Indictment, with attacks on
civilians, a violation of the laws or customs of war, as recognised by Article 51 of
Additional Protocol I883 and Article 13 of Additional Protocol II 884 to the Geneva
Conventions of 1949. The Accused is charged under Count 5 with unlawful
attacks on civilian objects, in breach of the laws and customs of war, as
recognized by Article 52 of Additional Protocol I885 to the Geneva Conventions,
and customary law.
883 Article 51 of Additional Protocol I provides, in so far as relevant: “1. The civilian population and
individual civilians shall enjoy general protection against dangers arising from military operations.
To give effect to this protection, the following rules, which are additional to other applicable rules
of international law, shall be observed in all circumstances. 2. The civilian population as such, as
well as individual civilians, shall not be the object of attack. ... 3. Civilians shall enjoy the
protection afforded by this Section, unless and for such time as they take a direct part in
hostilities. 4. Indiscriminate attacks are prohibited. Indiscriminate attacks are: (a) Those which are
not directed at a specific military objective; (b) Those which employ a method or means of combat
which cannot be directed at a specific military objective; (c) Those which employ a method or
means of combat the effects of which cannot be limited as required by this Protocol; and
consequently, in each such case, are of a nature to strike military objectives and civilians or
civilian objects without distinction. 5. Among others, the following types of attacks are to be
considered as indiscriminate: (a) An attack by bombardment by any methods or means which
treats as a single military objective a number of clearly separated and distinct military objectives
located in a city, town, village or other area containing a similar concentration of civilians or
civilian objects; and (b) An attack which may be expected to cause incidental loss of civilian life,
injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive
in relation to the concrete and direct military advantage anticipated [...] 8. Any violation of these
prohibitions shall not release the Parties to the conflict from their legal obligations with respect to
the civilian population and civilians, including the obligation to take the precautionary measures
provided for in Article 57.”
884 Article 13 of Additional Protocol II in its relevant part reads: “1. The civilian population and
individual civilians shall enjoy general protection against the dangers arising from military
operations. To give effect to this protection, the following rules shall be observed in all
circumstances. 2. The civilian population as such, as well as individual civilians, shall not be the
object of attack. Acts or threats of violence the primary purpose of which is to spread terror
among the civilian population are prohibited. 3. Civilians shall enjoy the protection afforded by this
Part, unless and for such time as they take a direct part in hostilities.”
885 Article 52 of Additional Protocol I provides: “1. Civilian objects shall not be the object of attack
or of reprisals. Civilian objects are all objects which are not military objectives as defined in
paragraph 2. 2. Attacks shall be limited strictly to military objectives. In so far as objects are
concerned, military objectives are limited to those objects which by their nature, location, purpose
or use make an effective contribution to military action and whose total or partial destruction,
capture or neutralization, in the circumstances ruling at the time, offers a definite military
advantage. 3. In case of doubt whether an object which is normally dedicated to civilian purposes,
such as a place of worship, a house or other dwelling or a school, is being used to make an
effective contribution to military action, it shall be presumed not to be so used.”
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278. The Prosecution refers to the definition of the crime of attacks on civilians
given in the Gali} Trial Judgement.886 It reiterates the elements of the offence of
attacking civilian objects established by the Bla{ki} and Kordi} Trial Chambers,
noting that the Bla{ki} Appeals Chamber overturned the Trial Chamber’s finding
as to the “military necessity” exception.887 The Prosecution further submits that
indiscriminate attacks and disproportionate attacks may be regarded as direct
attacks on civilian objects.888 The Defence gives the following examples of
military objectives: buildings and objects that provide administrative and logistical
support for military operations, as well as examples of objects that in certain
circumstances may constitute military objectives: transportation systems for
military supplies and a transportation centre where lines of communication
converge.889 The Defence refers to the comment by the ICRC, according to
which in the majority of cases military commanders will not themselves have the
opportunity to check the accuracy of information provided to them by the
competent services of the military as to the military nature of an objective. 890
The Defence further submits that commanders will not be held to a standard
of perfection in reaching their decisions.891
279. In the Chamber’s view, the facts established in this case make it
unnecessary to consider many of the legal and factual issues raised by the
submissions of the parties. We would however make the following general
observations. The Indictment in this case is confined to an artillery attack on the
Old Town which occurred on 6 December 1991. There was also shelling of the
wider city of Dubrovnik on that day. The Old Town is a physically distinct part of
the wider city. Its geographical location in the wider city, and its clearly visible
boundaries as marked by the medieval walls that surround the Old Town, provide
an immediate and obvious demarcation of the Old Town from the rest of the city.
It is a demarcation which is plain to see at a distance 892 and was obvious to the
JNA forces on 6 December 1991. The Old Town is also legally distinct from the
rest of the wider city because the Old Town, in its entirety including the medieval
walls, enjoys a World Heritage listing and the protections and immunities that are
consequent on that listing. In the context of this particular case there is a further
basis for distinguishing the Old Town from the remainder of the wider city of
Dubrovnik. As found by the Chamber in this decision, on 6 December 1991 there
were a few Croatian military positions in the wider city of Dubrovnik that were
relevant to the JNA attempt to capture Sr| that day, whereas there were none in
the Old Town,
ProsecutionFinalBrief,para213. 887
886
ProsecutionFinalBrief,para179asamendedby“Corrigendato“ProsecutionFinalTrialBrief”,para3. 888
ProsecutionFinalBrief,para218. 889 DefenceFinalBrief,para563. 890 DefenceFinalBrief,para565. 891
DefenceFinalBrief,para570. 892 ExhibitC1/2.
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and it was not believed by the JNA forces responsible for the shelling that there
were.893 For all of these quite compelling reasons it is legally and factually
appropriate, in the circumstances of this case, to consider the targeting and
shelling of the Old Town in isolation, and in distinction from, the targeting and
shelling of the remainder of the wider city of Dubrovnik. That is so for all counts.
280. The offence of attacks on civilians and civilian objects was defined in earlier
jurisprudence as an attack that caused deaths and/or serious bodily injury within
the civilian population or damage to civilian objects, and that was “conducted
intentionally in the knowledge, or when it was impossible not to know, that
civilians or civilian property were being targeted not through military necessity”. 894
The Appeals Chamber recently clarified some of the jurisprudence relating
to the various elements of the crime. First, the Appeals Chamber rejected any
exemption on the grounds of military necessity and underscored that there is an
absolute prohibition on the targeting of civilians and civilian objects in customary
international law.895 In this respect, the Chamber would observe that on the
established facts in the present case, there was no possible military necessity for
the attack on the Old Town on 6 December 1991.896 Further, the Appeals
Chamber confirmed that criminal responsibility for unlawful attacks requires the
proof of a result, namely of the death of or injury to civilians, or damage to civilian
objects.897 With respect to the scale of the damage required, the Appeals
Chamber, while not discussing the issue in detail, appeared to endorse previous
jurisprudence that damage to civilian objects be extensive. 898 In the present
case however, in light of the extensiveness of the damage found to have been
caused, the Chamber finds no need to elaborate further on the issue and will
proceed on the basis that if extensive damage is required, it has been
established in fact in this case. 899
281. In the present case, the Chamber notes that the Accused is charged,
alternatively, with attacks which, although directed against military objectives,
should have been expected to cause incidental loss of civilian life, injury to
civilians or damage to civilian property, which would be excessive in relation to
the concrete and direct military advantage anticipated. 900 However, as shown
elsewhere in this decision, the issue whether the attack charged against the
Accused was
893 Seesupra,paras193-194;211. 894
Bla{ki}TrialJudgement,para180;Kordi}TrialJudgement,para328.TheChambernotesthatthedefinition
inthe
Kordi} Trial Judgement further required that damage to civilian objects be extensive, while such
requirement was
not set out in the Bla{ki} Trial Judgement. 895 Bla{ki} Appeals Judgement, para 109; Gali} Trial
Judgement, para 44; Kordi} Appeals Judgement, para 54, as
revised by a “Corrigendum” of 26 January 2005. 896 Seesupra,paras193-
194;214;seealsoinfra,para288. 897 Kordi} Appeals Judgement, para 67. The conclusion was
based, inter alia, on the state practice concerning the
matter at the time when the attacks occurred in the Kordi} case, para 66. There is nothing to
suggest that the state
practice was different in this connection at the time relevant to the Indictment in the present case.
898 Kordi}AppealsJudgement,paras40-68. 899 Seeinfra,para326. 900 ProsecutionFinalBrief,paras247-
248,255and263.
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directed at military objectives and only incidentally caused damage does not
arise in the present case.901 Therefore, the Chamber does not find it
necessary to determine whether attacks incidentally causing excessive damage
qualify as attacks directed against civilians or civilian objects. 902
282. Pursuant to Article 49(1) of Additional Protocol I to the Geneva Conventions
“attacks” are acts of violence against the adversary, whether in offence or in
defence. According to the ICRC Commentary an attack is understood as a
“combat action” and refers to the use of armed force to carry out a military
operation at the beginning or during the course of armed conflict. 903 As regards
the notion of civilians, the Chamber notes that members of the civilian population
are people who are not taking any active part in the hostilities, including
members of the armed forces who laid down their arms and those persons
placed hors de combat by sickness, wounds, detention or any other cause. 904
The presence of certain non-civilians among the targeted population does
not change the character of that population. It must be of a “predominantly
civilian nature”.905 Further, Article 50 (1) of Additional Protocol I provides for
the assumption that in case of doubt whether a person is a civilian, that person
shall be considered to be a civilian. 906 The Chamber reiterates that “civilian
property covers any property that could not be legitimately considered a military
objective”.907
283. The Chamber therefore concludes that the crime of attacks on civilians or
civilian objects, as a crime falling within the scope of Article 3 of the Statute, is,
as to actus reus, an attack directed against a civilian population or individual
civilians, or civilian objects, causing death and/or serious injury within the civilian
population, or damage to the civilian objects. As regards mens rea, such an
attack must have been conducted with the intent of making the civilian population
or individual civilians, or civilian objects, the object of the attack. For reasons
stated above,908 the issue whether a standard lower than that of a direct
intent may also be sufficient does not arise in the present case.
901Seesupra,para214. 902 It was the view of the Gali} Trial Chamber that even though the main
object of such excessively disproportionate
attacks is not a civilian population or individual civilians, they could also qualify as direct attacks
against civilians.
See Gali} Trial Judgement, para 57. 903
ICRCCommentaryontheAdditionalProtocols,p603.SeealsoKordi}AppealsJudgement,para47. 904
AkayesuTrialJudgement,para582;Bla{ki}TrialJudgement,para214. 905
Tadi}TrialJudgement,para638;Bla{ki}TrialJudgement,para214. 906
Kordi}AppealsJudgement,paras48-51. 907
Bla{ki}TrialJudgement,para180.SeealsoKordi}AppealsJudgement,para53. 908 Seesupra,para281.
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2. Findings
284. The Chamber has already found that on 6 December 1991 there was an
attack launched by the JNA forces against the Old Town of Dubrovnik. 909 It is
also the finding of the Chamber, as recorded earlier, that there were no military
objectives within the Old Town and the attack was not launched or maintained in
the belief that there were.910 It is possible that there may have been
individuals in the Old Town on 6 December 1991 who were connected with the
Croatian defending forces, however, any such persons did not fire on JNA forces
or undertake any overt military activity. Their presence could not change the
character of the population. It was properly characterised as a civilian population,
and the objects located there were civilian objects. As regards the Defence
submission concerning alleged military activities of the Crisis Staff, the
headquarters of which was located in the Old Town, 911 the Chamber notes that
no persuasive evidence has been supplied to the effect that the Crisis Staff was
conducting military operations from the Old Town.912 On the contrary, \elo Jusi}
testified that the Crisis Staff did not deal with issues of defence. 913 Mato Valjalo
stated that its members did not fight and did not wear uniforms. 914 It was his
testimony that the headquarters of the Territorial Defence was in Lapad. 915 There
is nothing in the evidence to suggest that the building of the Crisis Staff made “an
effective contribution to military action” or that its destruction would offer “a
definite military advantage”.916 Accordingly, the Chamber finds on the evidence in
this case that the presence of the Crisis Staff in a building located in the Old
Town did not render the building a legitimate military objective. The Chamber
would also note that the building in question was not proved to have been
damaged917 during the shelling so that this Defence submission apparently lacks
factual foundation.
285. On 6 December 1991, the evidence is unequivocal that the Old Town was,
as it still is, a living town. Though a protected World Heritage site, it had a
substantial resident population of between 7,000 and 8,000, 918 many of whom
were also employed in the Old Town, as were very
909 Seesupra,paras99-119;121-145. 910 Seesupra,paras193-194. 911 DefenceFinalBrief,paras204-
206. 912 ProsecutionFinalBrief,paras232-233. 913 \eloJusi},T3206-3207.
914 MatoValjalo,T2091. 915 MatoValjalo,T1997. 916
Article52para2ofAdditionalProtocolI,seesupra,footnote885. 917 The headquarters of the Crisis Staff
was located at the Rector’s palace, \elo Jusi}, T 3207; \or|e Ciganovi},
T 2903. Slavko Grubi{i} testified: “At the rector's palace, as far as I was able to see from the
outside, because a shell had landed between the cathedral and the rector's palace, from the
north, or rather, the south side, from the cathedral, on those beautiful stones, there are still marks
made by shrapnel. It's pock-marked by shrapnel still.” T 1043. However, this evidence is not
indicative of proving that the damage occurred as result of this shell. Moreover, P63/6, Annex 1
shows six projectile impacts marked as “4” and “6” in the northern and eastern area of the outer
walls of the Rector’s Palace as being damaged in October/November.
918 DrJohnAllcock,T461-464;ExhibitP14. Case No IT-01-42-T
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many others who came to the Old Town from the wider Dubrovnik to work. 919
The Old Town was also a centre of commercial and local government
activity and religious communities lived within its walls. Because of, and under
the terms of, the JNA blockade, some women and children had temporarily left
the Old Town, but many remained. In addition, families and individuals displaced
by the JNA advance on Dubrovnik had found shelter in the Old Town. 920 Some
people from the wider Dubrovnik had also been able to take up temporary
residence in the Old Town during the blockade in the belief that its World
Heritage listing would give them protection from military attack. 921 The
existence of the Old Town as a living town was a renowned state of affairs which
had existed for centuries. The residential situation in the wider Dubrovnik was, in
many respects quite similar and a renowned state of affairs. The wider Dubrovnik
was a substantial residential and commercial centre with a large resident
population the numbers of whom had been swelled by refugees who had been
displaced from other towns and villages by the JNA advance. 922
286. In addition to this long established and renowned state of affairs, it is clear
from the evidence that the JNA forces had both the wider Dubrovnik and the Old
Town under direct observation from many positions since its forces had closed in
on Dubrovnik in November.923 The presence and movements of a large civil
population, in both the Old Town and the wider Dubrovnik, of necessity would
have been obvious to this close military observation. Of course, JNA leaders,
including the Accused and Admiral Joki} were directly concerned with
negotiations with inter alia representatives of the civilian population. Further, one
apparent objective of the JNA blockade of Dubrovnik was to force capitulation of
the Croatian defending forces by the extreme hardship the civilian population
was being compelled to endure by virtue of the blockade. In the Chamber’s
finding it is particularly obvious that the presence of a large civilian population in
the Old Town, as well as in the wider Dubrovnik, was known to the JNA
attackers, in particular the Accused and his subordinates, who variously ordered,
planned and directed the forces during the attack.
287. One or two particular aspects of the evidence related to the issue of a
civilian population in the Old Town, and in the wider Dubrovnik, warrants
particular note. On 6 December 1991 the attacking JNA soldiers could hear that
a defence or air-raid alarm was sounded at about 0700 hours on 6 December
1991 in Dubrovnik.924 In his report concerning that day Lieutenant-Colonel
Jovanovi}, commanding the 3/5 mtbr, purported to assume that after the alarm
the city dwellers had
PaulDavies,T579. 920 PaulDavies,T574. 921 PaulDavies,T579. 922 With respect to the fact that the
919
Old Town was a populated civilian town, the Chamber notes that a concert was held
on 5 December 1991 to commemorate the 200 year anniversary of Mozart’s death, \elo Jusi}, T
3067. 923 Seesupra,paras56-60;70.
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hidden in shelters. Hence, as he asserted in evidence, he ordered firing on the
basis that anyone who was still moving around in the Dubrovnik residential area
was participating in combat activities.925 This view assumes, of course, the
presence of civilians but seeks to justify the targeting of persons and vehicles
moving about on the basis suggested. The view which Lieutenant-Colonel
Jovanovi} purported to hold on that day does not hold up to scrutiny. Common
sense and the evidence of many witnesses in this case, confirms that the
population of Dubrovnik was substantially civilian and that many civilian
inhabitants had sound reasons for movement about Dubrovnik during the 10 1⁄2
hours of the attack. An obvious example is those trying to reach the wounded or
to get them to hospital. Others sought better shelter as buildings were damaged
or destroyed. Others sought to reach their homes or places of work. There are
many more examples. The purported view of Lieutenant-Colonel Jovanovi}
stands in contradiction with the testimony of another JNA officer, Captain Ne{i},
who said that he did see city-dwellers, to whom he referred as “civilians”, moving
about. He specifically accepted that those civilians were not jeopardising him and
his unit.926 The presence of civilians within the Old Town was also directly
communicated to the JNA at command level by the protests they received on that
day from the Crisis Staff. The JNA war diary contains the record of a complaint
made by Minister Rudolf to the Accused. The complaint relates to casualties and
wounded persons in Dubrovnik, as well as the hitting of the Franciscan
Monastery.927 In the finding of the Chamber the view expressed by Lieutenant-
Colonel Jovanovi}, and on which he acted in targeting the mortars of the 3/5 mtbr
which he commanded on 6 December 1991, was clearly false. It was contrived to
try to justify what was in truth the indiscriminate targeting of civilian people,
vehicles and buildings in the wider Dubrovnik (albeit to the north-west of the Old
Town because the Old Town was beyond the range of his mortars) without any
military justification.
288. The Chamber has found that the Old Town was extensively targeted by
JNA artillery and other weapons on 6 December 1991 928 and that no military firing
points or other objectives, real or believed, in the Old Town were targeted by the
JNA.929 Hence, in the Chamber’s finding, the intent of the perpetrators was to
target civilians and civilian objects in the Old Town. The Chamber has, in
addition, found that a relatively few military objectives (actual or believed) in the
wider city of Dubrovnik, but outside the Old Town, were targeted by JNA forces
on 6 December 1991. These were, in most cases, widely separated and in
positions distant from the Old Town. Shelling targeted at the Croatian military
positions in the wider Dubrovnik, including those closer to the Old Town,
924 CaptainNe{i},T8230;Lieutenant-ColonelJovanovi},T8112-8113;ExhibitD108. 925 ExhibitD108. 926
CaptainNe{i},T8231. 927 ExhibitD96,p71,entryat1600hours.
928 Seesupra,para214.
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and whether actual or believed positions, would not cause damage to the Old
Town, for reasons given in this decision. That is so for all JNA weapons in use on
6 December 1991, including mortars. In addition to this, however, the Chamber
has found there was also extensive targeting of non-military objectives outside
the Old Town in the wider city of Dubrovnik.
289. As found elsewhere in this decision, the deliberate JNA shelling of the Old
Town on 6 December 1991 has been proved to have resulted in the death of two
civilians and caused injuries to civilians.930 There was also extensive damage to
civilian objects.931 Accordingly, and leaving aside for the present the issue of
the Accused’s criminal responsibility, the Chamber finds that the elements of the
offence of attacks on a civilian population and civilian objects have been
established.
See supra, paras 193-194. 930 See supra, paras 250; 259; 270; 276.
929 931 See infra, paras 326-
327.
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C. Crimes against property, including cultural property (Counts 4 and 6)
1. Law on devastation not justified by military necessity (Count 4)
290. Count 4 of the Indictment charges the Accused with devastation not justified
by military necessity, punishable as a violation of the laws or customs of war
under Article 3(b) of the Statute.932
291. Article 3(b) codifies two crimes: “wanton destruction of cities, towns or
villages, or devastation not justified by military necessity”. Only the latter is
charged in the present case. From a linguistic point of view, the meaning of the
two terms, “devastation” and “destruction,” is largely identical. 933 Moreover,
the two offences have been treated together by a number of instruments of
international humanitarian law.934 At least in the context of this case, which is
concerned with the destruction of buildings in the Old Town of Dubrovnik, the
Chamber considers it appropriate to equate the two crimes, while recognising
that in other contexts, e.g. laying waste to crops or forests, the crime of
devastation may have a wider application.
292. While the crime of “devastation not justified by military necessity” has
scarcely been dealt with in the Tribunal’s jurisprudence, 935 the elements of the
crime of “wanton destruction not justified by military necessity” were identified by
the Trial Chamber in the Kordić case, and recently endorsed by the Appeals
Chamber in that same case, as follows:936
(i) the destruction of property occurs on a large scale; (ii) the destruction is not justified by military
necessity; and
932 ForthegeneralrequirementsfortheapplicationofArticle3,seesupra,paras227-233. 933
TheOxfordEnglishDictionarydefinesthenotionofdevastationas“awasting,spoiling,desolation,ordestr
uction” and refers to recorded usage of the term in this context from as early as 1502. It further
defines the notion of “devastation” as “the action of devastating, or condition of being devastated,
laying waste; wide-spread destruction,
ravages.” The Oxford English Dictionary, Volume IV, Clarendon Press, Oxford, 1998. 934
The“ListofWarCrimes”preparedbytheCommissionontheResponsibilityoftheAuthorsoftheWarandont
he Enforcement of Penalties, which was presented to the Preliminary Peace Conference in Paris
on 29 March 1919, listed the war crime of “Wilful devastation and destruction of property” as a
crime recognised by international law at the time. Later, the Nuremberg Charter in Article 6(B)
listed the two offences together (“wanton destruction of cities, towns or villages, or devastation
not justified by military necessity”) as a war crime. The two crimes were also listed side by side in
Article II, para 1(b) of the Control Council Law No. 10, Punishment of Persons Guilty of War
Crimes, Crimes Against Peace and Against Humanity, December 20, 1945, 3 Official Gazette
Control Council for Germany 50-55 (1946). The Chamber further notes Articles 8(2)(b)(xiii) and
8(2)(e)(xii) of the Rome Statute of
the International Criminal Court, U.N. Doc. A/CONF.183/9, 17 July 1998. 935 The only judgements
dealing with this are the Blaškić Trial Judgement, paras 183, 510, 534; the Blaškić Appeals
Judgement, para 426; the Brðanin Trial Judgement, paras 591-593, 600-639. The Trial Chamber
in the Blaškić case found the accused Blaškić guilty under Article 3(b) with regard to “devastation
not justified by military necessity” but did not provide for a definition of the elements, see Blaškić
Trial Judgement para 183. Nor did the Appeals Chamber in the same case, stating solely that the
events in Vitez and Stari Vitez constituted “devastation” according to Article 3(b), see Blaškić
Appeals Judgement, para 426. In the Brðanin case the Trial Chamber did not differentiate
between the two offences set out in Article 3(b), see Brðanin Trial Judgement, paras 591-593.
936
KordićTrialJudgement,para346andKordi}AppealsJudgement,para74.Thisdefinitionwasalsoaccept
edbythe Trial Chamber in the Naletilić Trial Judgement, para 579.
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(iii) the perpetrator acted with the intent to destroy the property in question or in reckless
disregard of the likelihood of its destruction.
293. At least in the context of the present trial this definition appears equally
applicable to devastation. The Chamber will adopt this definition, with appropriate
adaptions to reflect “devastation,” for the crime of “devastation not justified by
military necessity.” Both the Prosecution and the Defence submit that this should
be done.937
294. Turning to the first element, that is, that the devastation occurred on a “large
scale”, the Chamber is of the view that while this element requires a showing that
a considerable number of objects were damaged or destroyed, it does not
require destruction in its entirety of a city, town or village. 938 The Chamber will
not pronounce on the question whether there is any identity between the term
“large scale” in this context and the term “extensive” in the context of the crime of
“extensive destruction of property” pursuant to Article 2(d) of the Statute. The
facts of this case do not require it.
295. The second requirement is that the act is “not justified by military necessity”.
The Chamber is of the view that military necessity may be usefully defined for
present purposes with reference to the widely acknowledged definition of military
objectives in Article 52 of Additional Protocol I as “those objects which by their
nature, location, purpose or use make an effective contribution to military action
and whose total or partial destruction, capture or neutralization, in the
circumstances ruling at the time, offers a definite military advantage”. 939
Whether a military advantage can be achieved must be decided, as the
Trial Chamber in the Gali} case held, from the perspective of the “person
contemplating the attack, including the information available to the latter, that the
object is being used to make an effective contribution to military action.” 940 In
other words, each case must be determined on its facts. Recalling its earlier
finding that there were no military objectives in the
937
ProsecutionFinalBrief,para178;DefenceFinalBrief,para610.TheChamberisawareofthefactthatneith
erthe Prosecution nor the Defence distinguish the crime of “destruction of property not justified by
military necessity” underlying the Kordić Trial Judgement and the crime of “devastation not
justified by military necessity” being at issue in the present case.
938 See e.g. Naletilić Trial Judgement, in which the Trial Chamber found the accused Naletilić
guilty under Article 3(b) for “wanton destruction not justified by military necessity” regarding the
village of Doljani, in which half of the houses had been destroyed, paras 584, 596.
939
ThesameapproachwasusedintheGali}TrialJudgment,para51.Thiscorrespondswiththedefinitionofa
military objective as referred to in the Final report of the United Nations Commission of Experts
established pursuant to Security Council Resolution 780 (1992), Annex XI.A, The battle of
Dubrovnik and the law of armed conflict, X. C., according to which “military objectives are those
objects which by their nature, location, purpose or use: (a) make an effective contribution to
military action, and (b) whose total or partial destruction, capture or neutralization, in the
circumstances ruling at the time, offers a definite military advantage”. For additional definitions of
military necessity, see also Article 14 of the 1863 Lieber Code as follows: “Military necessity, as
understood in modern civilized nations, consists in the necessity of those measures which are
indispensable for securing the ends of war, and which are lawful according to the modern law and
usages of war.” See also the ICRC Dictionary of the international law of armed conflict, according
to which “military necessity, in its wider sense, means doing what is necessary to achieve war
aims” (Pietro Vierri, Dictionary of the international law of armed conflict, ICRC, 1992, p 75).
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Old Town on 6 December 1991,941 the Chamber is of the view that the question
of proportionality in determining military necessity does not arise on the facts of
this case.
296. According to the consistent case-law of the Tribunal the mens rea
requirement for a crime under Article 3(b) is met when the perpetrator acted with
either direct or indirect intent, the latter requiring knowledge that devastation was
a probable consequence of his acts.942
297. In sum, the elements of the crime of “devastation not justified by military
necessity”, at least in the present context, may be stated as: (a) destruction or
damage of property on a large scale; (b) the destruction or damage was not
justified by military necessity; and (c) the perpetrator acted with the intent to
destroy or damage the property or in the knowledge that such destruction or
damage was a probable consequence of his acts.
2. Law on destruction or wilful damage of cultural property (Count 6)
298. Count 6 of the Indictment charges the Accused with destruction or wilful
damage done to institutions dedicated to religion, charity and education, the arts
and sciences, historic monuments and works of art and science, punishable
under Article 3(d) of the Statute.
299.
Article 3(d) of the Statute reads:
The International Tribunal shall have the power to prosecute persons violating the laws or
customs of war. Such violations shall include, but not be limited to:
... (d) seizure of, destruction or wilful damage done to institutions dedicated to religion, charity
and education, the arts and sciences, historic monuments and works of art and science;
300. This provision has been interpreted in several cases before the Tribunal to
date. The Bla{ki} Trial Chamber adopted the following definition:
The damage or destruction must have been committed intentionally to institutions which may
clearly be identified as dedicated to religion or education and which were not being used for
military purposes at the time of the acts. In addition, the institutions must not have been in the
immediate vicinity of military objectives.943
301. The Naletili} Trial Judgement, while rejecting the Blaski} holding that, in
order to be protected, the institutions must not have been located in the
immediate vicinity of military objectives,944 held that the elements of this crime
with respect to destruction of institutions dedicated to religion would be satisfied
if: “(i) the general requirements of Article 3 of the Statute
940Gali}TrialJudgment,para51. 941 Seesupra,paras193-194;214. 942
SeeKordićTrialJudgement,para346;BrðaninTrialJudgement,para593. 943
Bla{ki}TrialJudgement,para185.
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are fulfilled; (ii) the destruction regards an institution dedicated to religion; (iii) the
property was not used for military purposes; (iv) the perpetrator acted with the
intent to destroy the property.”945
302. Further, the Kordi} Trial Judgement held that while this offence overlaps to a
certain extent with the offence of unlawful attacks on civilians objects, when the
acts in question are directed against cultural heritage, the provision of Article 3(d)
is lex specialis.946
303. In order to define the elements of the offence under Article 3(d) it may be
useful to consider its sources in international customary and treaty law. Acts
against cultural property are proscribed by Article 27 of the Hague Regulations of
1907, by the Hague Convention of 1954, by Article 53 of Additional Protocol I and
by Article 16 of Additional Protocol II.
304. Article 27 of the Hague Regulations of 1907 reads:
In sieges and bombardments all necessary steps must be taken to spare, as far as possible,
buildings dedicated to religion, art, science, or charitable purposes, historic monuments,
hospitals, and places where the sick and wounded are collected, provided they are not being
used at the time for military purposes.
305. Article 4 of The Hague Convention of 1954 requires the States Parties to
the Convention to:
1. [...] respect cultural property situated within their own territory as well as within the territory of
other High Contracting Parties by refraining from any use of the property and its immediate
surroundings or of the appliances in use for its protection for purposes which are likely to expose
it to destruction or damage in the event of armed conflict; and by refraining from any act of
hostility directed against such property.
2. The obligations mentioned in paragraph 1 of the present Article may be waived only when
military necessity imperatively requires such a waiver.
...
4. They shall refrain from any act directed by way of reprisals against cultural property. 306.
Article 53 of Additional Protocol I reads:
Without prejudice to the Provisions of the Hague Convention for the Protection of Cultural
Property in the Event of Armed Conflict of 1954, and of other relevant international instruments, it
is prohibited:
(a) to commit any acts of hostility directed against the historic monuments, works of art or places
of worship which constitute the cultural or spiritual heritage of peoples;
(b) to use such objects in support of the military effort; (c) to make such objects the object of
reprisals.
944 Naletili}TrialJudgement,para604. 945 Naletili}TrialJudgement,para605. 946
Kordi}TrialJudgement,para361.
Case No IT-01-42-T
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This text is almost identical in content to the analogous provision in Additional
Protocol II (Article 16) the only differences being the absence in the latter of a
reference to “other relevant international instruments” and the prohibition on
making cultural property the object of reprisals.
307. The Hague Convention of 1954 protects property “of great importance to
the cultural heritage of every people.” 947 The Additional Protocols refer to
“historic monuments, works of art or places of worship which constitute the
cultural or spiritual heritage of peoples.” 948 The Kordi} Appeals Judgement,
referring to the ICRC Commentary to Article 53 of Additional Protocol I, stated
that despite this difference in terminology, the basic idea [underlying the two
provisions] is the same.949 Whether there may be precise differences is not an
issue raised by the facts of this case. The Chamber will limit its discussion to
property protected by the above instruments (hereinafter “cultural property”). 950
308. While the aforementioned provisions prohibit acts of hostility “directed”
against cultural property, Article 3(d) of the Statute explicitly criminalises only
those acts which result in damage to, or destruction of, such property. Therefore,
a requisite element of the crime charged in the Indictment is actual damage or
destruction occurring as a result of an act directed against this property. 951
309. The Hague Regulations of 1907 make the protection of cultural property
dependent on whether such property was used for military purposes. 952 The
Hague Convention of 1954 provides for an obligation to respect cultural property.
This obligation has two explicit limbs, viz. to refrain “from any use of the property
and its immediate surroundings... for purposes which are likely to expose it to
destruction or damage in the event or armed conflict”, and, to refrain “from any
act of hostility directed against such property.” 953 The Convention provides for
a waiver of these obligations, however, but only when “military necessity
imperatively requires such a waiver.”954 The Additional Protocols prohibit the use
of cultural property in support of military efforts, but make no explicit provision for
the consequence of such a use, i.e. whether it affords a justification for acts of
hostility against such property. Further, the Additional Protocols prohibit acts of
947Article1,TheHagueConventionof1954. 948
Article53,AdditionalProtocolI;Article16,AdditionalProtocolII. 949 Kordi}AppealsJudgement,para91.
950
TheChambermakesthisclarificationinlightoftherecentKordi}AppealsJudgementinwhichtheChamber
found
that not all educational institutions listed in Article 3(d) of the Statute would qualify as cultural
property protected under Article 53 of Additional Protocol I. It held that some educational
institutions would be protected as civilian objects under Article 52 of Additional Protocol I instead
of cultural property under Article 53. (Kordi} Appeal Judgement, para 92).
951 Seealso,thirdTadi}condition,supra,para232.Tadi}AppealJurisdictionDecision,para94. 952 Article
27 of The Hague Regulations of 1907 reads in the relevant part “...provided they are not being
used at the
time for military purposes.” 953 Article4,para1ofTheHagueConventionof1954.
Case No IT-01-42-T
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hostility against cultural property, without any explicit reference to military
necessity. However, the relevant provisions of both Additional Protocols are
expressed to be “[w]ithout prejudice to” the
provisions of the Hague Convention of 1954. 955 This suggests that in these
respects, the Additional Protocols may not have affected the operation of the
waiver provision of the Hague Convention of 1954 in cases where military
necessity imperatively requires waiver. In this present case, no military necessity
arises on the facts in respect of the shelling of the Old Town, so that this question
need not be further considered. For the same reason, no consideration is
necessary to the question of what distinction is intended (if any) by the word
“imperatively” in the context of military necessity in Article 4, paragraph 2 of the
Hague Convention of 1954.
310. Nevertheless, the established jurisprudence of the Tribunal confirming the
“military purposes” exception956 which is consistent with the exceptions
recognised by the Hague Regulations of 1907 and the Additional Protocols,
persuades the Chamber that the protection accorded to cultural property is lost
where such property is used for military purposes. Further, with regard to the
differences between the Bla{ki} and Naletili} Trial Judgements noted above
(regarding the use of the immediate surroundings of cultural property for military
purposes), and leaving aside any implication of the issue of imperative military
necessity, the preferable view appears to be that it is the use of cultural property
and not its location that determines whether and when the cultural property would
lose its protection.957 Therefore, contrary to the Defence submission,958 the
Chamber considers that the special protection awarded to cultural property itself
may not be lost simply because of military activities or military installations in the
immediate vicinity of the cultural property. In such a case, however, the practical
result may be that it cannot be established that the acts which caused destruction
of or damage to cultural property were “directed against” that cultural property,
rather than the military installation or use in its immediate vicinity.
311. As for the mens rea element for this crime, the Chamber is guided by the
previous jurisprudence of the Tribunal that a perpetrator must act with a direct
intent to damage or destroy the property in question. There is reason to question
whether indirect intent ought also to be an
954Article4,para2ofTheHagueConventionof1954. 955 Article 53, Additional Protocol I; Article
16, Additional Protocol II. 956 Bla{ki} Trial Judgement, para 185; Kordi} Trial Judgement, para 362;
Naletili} Trial Judgement, para 922; Br|anin
Trial Judgement, para 598. 957
AsArticle27ofTheHagueRegulationsexplicitlyrefersto“insiegesandbombardments”,itisnotbecauseof
the
location of cultural property, but because of their use when cultural property loses its protection.
Article 16 of the Second Protocol of the Hague Convention of 1954 strengthens this view. It
states, as a waiver of the protection of cultural property, that “when and as long as (i) that cultural
property has, by its function, been made into a military objective”. (emphasis added). See also
Naletili} Trial Judgement, para 604.
958 DefenceFinalTrialBrief,paras615,617. Case No IT-01-42-T
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acceptable form of mens rea for this crime, but that is an issue not directly raised
by the circumstances of this case.
312. In view of the above, the definition established by the jurisprudence of the
Tribunal appears to reflect the position under customary international law. For the
purposes of this case, an act will fulfil the elements of the crime of destruction or
wilful damage of cultural property, within the meaning of Article 3(d) of the
Statute and in so far as that provision relates to cultural property, if: (i) it has
caused damage or destruction to property which constitutes the cultural or
spiritual heritage of peoples; (ii) the damaged or destroyed property was not used
for military purposes at the time when the acts of hostility directed against these
objects took place; and (iii) the act was carried out with the intent to damage or
destroy the property in question.
3. Findings on Counts 4 and 6
313. The Accused must answer charges that at least some degree of damage or
destruction was sustained by 116959 buildings and structures in the course of the
6 December attack on the Old Town of Dubrovnik. These are listed in the Annex
to the Rule 98bis Decision.960 They include the six buildings alleged to have
been completely destroyed in the attack: namely: Palace – Od Sigurate 1
(Festival Palace), Palace – Od Sigurate 2, Palace Martinu{i} – Sv. Josipa 1,
Palace – Od Pu~a 11, Palace – Od Pu~a 16, Palace Sorko~evi} – Miha Pracata
6.961 In addition, the Prosecution submits that it has proven damage to the
Institute for the Protection of Cultural Monuments (C1), a building not listed in the
Annex, resulting from the 6 December attack on the Old Town. 962
314. The Prosecution submits that the six buildings identified in paragraph 23 of
the Indictment were destroyed by fire on 6 December 1991 during the JNA
shelling of the Old Town.963 The Prosecution concedes that “[a]lthough the
eye-witnesses [...] could not give direct evidence of the origin of the firing of the
shells, the only inference available, on the totality of the evidence, is that the JNA
fired them into the Old Town.”964 The Prosecution further submits that it has
proven that the 116 buildings and structures listed in the Annex to the Rule 98bis
Decision, and additionally,
959 In the course of the Rule 98bis Decision, the original list of 450 buildings listed in Schedule II to
the Indictment, which had been allegedly destroyed and damaged as a result of the 6 December
shelling, was substantially reduced.
960 Rule 98bis Decision, Annex: Part A listed 96 buildings and structures identified in Schedule II
of the Indictment; Part B listed 20 buildings and structures that could not be readily identified in
Schedule II of the Indictment but which were located in the Old Town.
961 Indictment,para23. 962 ProsecutionFinalBrief,paras193-194. 963 ProsecutionFinalBrief,para183.
964 ProsecutionFinalBrief,para183.
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the office of the Institute for Protection of Cultural Monuments (C1), sustained
damage as a result of the shelling on 6 December 1991. 965
315. The Defence submits that the testimony of the Prosecution witnesses
involved “an excessive and incorrect exaggeration of the damages incurred in the
Old Town”.966 Additionally, the Defence claims that the testimony of these
witnesses is “unreliable, biased and false”.967 As noted by the Chamber in its
general comments on the evidence earlier in this decision, some evidence of
damage was less than satisfactory. Its effect was in many cases to exaggerate
damage. The Chamber has given full effect to this in its evaluation of the
credibility of the evidence of damage in its Rule 98bis Decision and in what
follows.
316. In general terms, the Chamber’s findings on these Counts are based on the
evidence which it has accepted of citizens of Dubrovnik 968 or persons visiting the
Old Town during or immediately after the attack,969 and evidence such as that of
a monitor from the ECMM, Per Hvalkof, who walked around in the Old Town on
the day after the attack and described the town as “horrible” looking and “very
badly damaged”; he thought the Old Town looked like a “missile garbage lot”. 970
In reaching its finding the Chamber has also relied on video evidence 971 and
various reports compiled after the attack, and has been assisted by its site
visit.972 The Chamber has also relied on this evidence in the determination of
how many, and exactly which, buildings and structures were damaged during the
6 December shelling of the Old Town.
317. As discussed above,973 the Chamber has found that there was an artillery
attack by the JNA forces under the command of the Accused on the Old Town of
Dubrovnik on 6 December 1991.
318. The Chamber finds that of the 116 buildings and structures it listed in the
Annex to its Rule 98bis Decision, 52 were destroyed or damaged during the 6
December shelling of the Old Town by the JNA. The Chamber’s findings in
relation to these 52 buildings and structures are
965 Prosecution Final Brief, paras 193-194; the Prosecution marked all 116 buildings and
structures, plus C1, on the map submitted as Annex IV to its Brief.
966 Defence Final Brief, para 510. The submissions of the Defence on the military presence in the
Old Town and military objectives are presented in supra, paras 182-214.
967 DefenceFinalBrief,paras510,520. 968 LucijanaPeko,T1966-
1967;ZinetaOgresta,T3475;WitnessA,T3636;NikolaJovi},T2952,2964-2965;Slavko
Grubi{i}, T 1045; Slobodan Vukovi}, T 5826-5829. 969 \or|e Ciganovi}, T 2734-2735; Lars Brolund,
T 879-881; Per Hvalkof, T 2208, 2214; Minister Rudolf, T 5619;
Colin Kaiser, T 2435-2436. 970 PerHvalkof,T2214,T2208. 971 ExhibitP66at34:51-37:00;37:38-
37:53;ExhibitP145at00:08-21:15;ExhibitP78at13:40-43:29. 972 ExhibitP164 describes the damage
as “significant”, p2; ExhibitP63/6 “Houses were smoking, rubble was
everywhere and the streets were dangerous as broken tiles were being thrown down from the
roofs and cornices and bits of roof threatened to fall off, though this did not prevent anyone from
passing by anyway [...] the people of Dubrovnik [...] stared at the damage in astonishment.”, p 32;
Exhibit C1/1, pp 16-23.
973 Seesupra,paras99-119;121-145. Case No IT-01-42-T
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31 January 2005
included in an Annex attached to this Judgement, and the evidence upon which
the Chamber has relied in making these findings is referenced therein .974 The
Chamber will set out below why it cannot be satisfied to the required standard
that the other 64 buildings and structures of the 116, and the additional building
(C 1), were destroyed or damaged in that attack. The Chamber emphasises that
the list of 52 should not be understood as representing an exhaustive list of the
buildings and structures damaged during the 6 December 1991 JNA attack. The
Chamber has necessarily had to confine its findings to those buildings listed in
the Indictment and which remained listed in the Annex to the Rule 98bis
Decision. In particular, it was not always possible to relate evidence of damage to
the buildings listed therein.
319. The nature and extent of the damage to the 52 buildings and structures
from the 6 December 1991 attack varied considerably as is apparent from the
evidence identified in the footnotes in the Annex. It is unnecessary to attempt to
detail all of the damage in this decision. The most seriously affected were six
buildings which were completely destroyed, i.e. burned out, on 6 December
1991.975 Several of the 52 buildings and structures had sustained some degree of
damage from earlier shelling in October and November. 976 This earlier damage
has been identified by the Chamber so that it is not attributed to the 6 December
1991 attack. In the result, from its analysis of the damage, the Chamber is
satisfied that the previously damaged buildings sustained further and significant
damage during the 6 December attack.
320. The Chamber also observes that among those buildings which were
damaged in the attack, were monasteries, churches, a mosque, a synagogue
and palaces.977 Among the other buildings affected were residential blocks,
public places and shops; damage to these would have entailed grave
consequences for the residents or the owners, i.e. their homes and businesses
suffered substantial damage.978
321. In reaching its findings that the evidence is insufficient in respect of the
other 64 buildings and structures the Chamber is lead by the following
considerations. The evidence of damage to those 64 buildings and structures
derives from the extracts from the “Preliminary Report on War Destruction
Sustained by the Ancient City Centre of Dubrovnik in October, November and
974See Annex I. The Chamber has retained both the sequential numbers, corresponding to the
original 450 buildings and structures as they appear in Schedule II to the Indictment, and the
sequential numbers (A1-A96 and B1-B20) given in the course of the Rule 98 bis Decision, for the
purposes of identification.
975
SeeAnnexINos:J9,J10,J11,J20,J21andJ26.FortheChamber’spositionontheDefenceargumentthatfi
veout of the six burnt buildings were owned “by persons from Serbia or Montenegro” (Defence
Final Brief, para 518), see supra paras 180-181.
976 Amongst the structures which sustained damage during the October and November
shelling of the Old Town were the Franciscan monastery, Sponza Palace and the city port. See
supra, paras 50 and 62.
977
E.g.FranciscanMonastery,OrthodoxChurch,StVlaho(StBlaise)Church,Mosque,Synagogue,Onofrio
Fountain, Cathedral etc. See Annex I, the buildings listed under Nos: J4, J16, J13, J19, J35, J7
and J12.
Case No IT-01-42-T
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December 1991” compiled by the “Institute for Protection and Conservation of the
Historical Monuments” of Dubrovnik (hereinafter “Institute Report”). 979 The
Institute Report purports to deal with damage between 1 October and 31
December 1991, which of course includes damage caused on 6 December 1991,
and subject of the Indictment, but it is necessary to be able to separate damage
of 6 December from all other damage. While the Institute Report itself purports to
specify damage occurring on 6 December 1991 by the date of damage given for
each object surveyed, this specification has been shown not to be always
accurate.980
322. Although two witnesses, architects Lucjiana Peko and Slobodan Vukovi},
who personally carried out inspections of the damage sustained by the buildings
and structures in the Old Town, vouched generally for the accuracy and reliability
of the extracts from the Institute Report,981 the Chamber notes that the entries in
the Institute Report were recorded on the basis of hearsay evidence. In most of
the cases, information was collected from unknown persons who are described
merely as neighbours or tenants.982 Whether those neighbours or tenants spoke
from personal knowledge or hearsay knowledge is not known.
323. Moreover, the Chamber notes that these two witnesses had not had
previous experience in inspecting war damage. Neither they, nor the members of
their inspection teams, had expertise in ballistic or criminal investigation. 983 The
cross-examination of Slobodan Vukovi} on the contents of his part of the Institute
Report revealed many inaccuracies and material typographical errors. 984 Finally,
the Chamber recalls that the Institute Report was originally conceived as, and still
bears the title “preliminary report”, i.e. the expectation of its authors was that a
final report on damage would follow. 985 However, no final report has been
presented in the case. Colin Kaiser, one of the UNESCO consultants tasked to
assist in assessing the damage sustained from the October and
978 SeeAnnexI,e.g.Nos:J11,J14,J15,J17,J22,J23,J25,J34,J39,J46andJ49. 979
TheInstituteReportwasmarkedforidentificationasExhibitMFI/P51butwasneveradmittedintoevidence
inits
entirety. However, the extracts from it were admitted as Exhibits P174, P212 and P52. See
Prosecutor v Pavle
Strugar, Case No. IT-01-42-T, Decision on the Admissibility of Certain Documents, 26 May 2004,
pp 8-11. 980 It has been effectively pointed out during the cross-examination of Colin Kaiser that
the damage described as damage of 6 December 1991 also included other damage which may
have been incurred earlier (T 2556-2574). Colin Kaiser states that although the intention was to
catalogue damage from 6 December 1991, it appears that other damage has been recorded. He
could not guarantee that all the damage from the earlier period is contained in the report (T 2580-
2584); Lucijana Peko, although insisting that during inspections she was able to “distinguish
between old damage and recent damage” (T 1910-1911), concedes that she was not asked to
distinguish between damage sustained in October/November and December and that, although,
she was asked to “register all the damage
that was sustained on the 6th of December”, the Institute Report includes the damage from all
three months, T 1912. 981
LucijanaPekoconfirmsthelistofbuildings(ExhibitP52)whichshepersonallyexamined,T1862;1944;Slo
bodan Vukovi} confirms the accuracy of the extracts from the Report on buildings which he
personally examined
(Exhibit P174), T 5922. 982 E.g.SlobodanVukovi},T6087-6093,6101;LucijanaPeko,T1922;1923-
1924. 983 Slobodan Vukovi}, T 6045-6047; Lucijana Peko, T 1922-1923. The matter was also
raised in the Defence Final
Brief, para 519 and the Prosecution Final Brief, paras 201-202. 984
Seee.g.SlobodanVukovi},T6052-6056. 985 SlobodanVukovi},T5900-5901,6080-
6081;LucijanaPeko,T1871,1891-1895,1973-1974;ColinKaiser,T2555.
Case No IT-01-42-T
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November attacks, could not vouch for the accuracy of the Institute Report,
stating “You know I didn’t carry out this survey. You know I wasn’t looking at the
teams. You know I am not responsible for this work.” 986
324. The Chamber, in determining what weight to attach to the submitted
extracts of the Institute Report, concludes that the Report can be relied upon only
to the extent it is confirmed by other evidence presented in this case, i.e. witness
statements, other reports and video evidence.987 The Chamber has
proceeded on this basis.
325. As to the alleged damage to the office of the Institute itself (C1) the only
evidence offered is the testimony of Colin Kaiser. His statement is, however, in
this respect too vague to serve as a basis for a finding of damage to this
particular building.988
326. In relation to Count 4 specifically, the Chamber finds that the Old Town
sustained damage on a large scale as a result of the 6 December 1991 JNA
attack. In this regard, the Chamber has considered the following factors: that 52
individually identifiable buildings and structures were destroyed or damaged; that
the damaged or destroyed buildings and structures were located throughout the
Old Town and included the ramparts surrounding it; that a large number of
damaged houses bordered the main central axis of the Old Town, the Stradun,
which itself was damaged, or were in the immediate vicinity thereof; and finally,
that overall the damage varied from totally destroyed, i.e. burned out, buildings to
more minor damage to parts of buildings and structures.
327. In relation to Count 6 specifically, the Chamber observes that the Old Town
of Dubrovnik in its entirety989 was entered onto the World Heritage List in 1979
upon the nomination of the SFRY.990 The properties inscribed on the World
Heritage List include those which, “because of their architecture, their
homogeneity or their place in the landscape, are of outstanding universal value
from the point of view of history, art or science.” 991 The Chamber is of the view
that all the property within the Old Town, i.e. each structure or building, is within
the scope of Article 3(d) of the Statute. The Chamber therefore concludes that
the attack launched by the JNA forces against
986 ColinKaiser,T2695-2696. 987
E.g.whenvideoevidencewasindicativeoftherecentdamage,i.e.,amountofdebris,theChambercouldco
nclude
that the damage was recent. Here the Chamber also recalls the testimony of Slobodan Vukovi}
who said that it was
an “instantaneous” practice to clear the streets of debris, Slobodan Vukovi}, T 5830-5831. 988
ColinKaiser,T2431-2432. 989
TheOldTowncomprised:“TheurbanhistoricalcomplexofDubrovnikincludesallthebuildingserectedfro
mthe
XIIth to the XVIth century, within the precincts of the fortified walls. It covers an area of 15,2 ha
[...] The boundaries of the historical urban complex are precisely defined by the fortified walls, the
former moats and, on the southern side, by the steep coast-line.”, P63/2, p 1.
990 ColinKaiser,T2378-2379,ExhibitsP63/2,P63/7;ExhibitP14,p11. 991
Conventionconcerningtheprotectionoftheworldculturalandnaturalheritage,adoptedbytheGeneralCo
nference
at its seventeenth session, Paris, 16 November 1972, Exhibit P63/11, Article 1.
Case No IT-01-42-T
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31 January 2005
the Old Town on 6 December 1991 was an attack directed against cultural
property within the meaning of Article 3(d) of the Statute, in so far as that
provision relates to cultural property.
328. In relation to Count 6, there is no evidence to suggest that any of the 52
buildings and structures in the Old Town which the Chamber has found to have
been destroyed or damaged on 6 December 1991, were being used for military
purposes at that time.992 Therefore, the buildings were protected as cultural
property under Article 3(d) of the Statute at the time they incurred damage. As
discussed earlier, military necessity can, in certain cases, be a justification for
damaging or destroying property. In this respect, the Chamber affirms that in its
finding there were no military objectives in the immediate vicinity of the 52
buildings and structures which the Chamber has found to have been damaged
on 6 December 1991,993 or in the Old Town or in its immediate vicinity. In the
Chamber’s finding, the destruction or damage of property in the Old Town on 6
December 1991 was not justified by military necessity.
329. As to the mens rea element for both crimes the Chamber makes the
following observations. In relation to Count 4, the Chamber infers the direct
perpetrators’ intent to destroy or damage property from the findings that the
attack on the Old Town was deliberate, and that the direct perpetrators were
aware of the civilian character of the Old Town. 994 Similarly, for Count 6, the
direct perpetrators’ intent to deliberately destroy cultural property is inferred by
the Chamber from the evidence of the deliberate attack on the Old Town, 995 the
unique cultural and historical character of which was a matter of renown, as was
the Old Town’s status as a UNESCO World Heritage site. 996 As a further
evidentiary issue regarding this last factor, the Chamber accepts the evidence
that protective UNESCO emblems were visible, from the JNA positions at
@arkovica and elsewhere, above the Old Town on 6 December 1991. 997
330. Leaving aside for the present the question of the Accused’s responsibility,
the Chamber finds that all elements of the offence of devastation not justified by
military necessity (Count 4) and destruction or wilful damage of cultural property
(Count 6) are established.
992Seesupra,paras193-194. 993 Seesupra,paras203-214. 994 Seesupra,paras214;285-288. 995
Seesupra,para214. 996 Seesupra,para21. 997 The video evidence shows clearly visible emblems
indicating that the buildings and the structures within the Old
Town were protected, Minceta Fort, Exhibit P78 at 13:11-13:20, 13:05-13:10, 17:19-17:27, 38:21-
38:32. See especially the evidence of Witness B, a JNA soldier positioned at @arkovica during
the attack on the Old Town on 6 December 1991. He testified that, on 6 December 1991, he
observed some flags flying over the buildings. He personally did not know what the flags meant,
“but the others were saying that those flags were there to protect the section of the town in the
sense that that portion of the town was not to be targeted”, T 5047-5048. Colin Kaiser further
testified about the raising of three UN flags over three bastions of the walls of the Old Town on 27
November 1991, T 2384-2387.
Case No IT-01-42-T
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VII. INDIVIDUAL CRIMINAL RESPONSIBILITY OF THE ACCUSED A.
Ordering
1. Law
331. This form of liability requires that at the time of the offence, an accused
possessed the authority to issue binding orders to the alleged perpetrator. A
formal superior-subordinate relationship between the person giving the order and
the one executing it is not a requirement in itself, nor need the order be given in
writing, or in any one particular form, or directly to the individual executing it. 998
The existence of an order may be proven through direct or circumstantial
evidence.999
332. As this form of liability is closely associated with “instigating,” subject to the
additional requirement that the person ordering the commission of a crime have
authority over the person physically perpetrating the offence, a causal link
between the act of ordering and the physical perpetration of a crime, analogous
to that which is required for “instigating”,1000 also needs to be demonstrated as
part of the actus reus of ordering.1001 The Chamber further accepts that, similar to
instigating,1002 this link need not be such as to show that the offence would not
have been perpetrated in the absence of the order.
333. With regard to the requisite mens rea, it must be established that the
accused in issuing the order intended to bring about the commission of the
crime,1003 or was aware of the substantial likelihood that it would be committed in
the execution of the order.1004 The mens rea of the accused need not be
explicit, it may be inferred from the circumstances.1005 Indeed, as mens rea is
a state of
998 Kordi} Trial Judgement, para 388. 999 Bla{ki} Trial Judgement, para 281; Kordi} Trial
Judgement, para 388. In this respect, ordering “may be inferred
from a variety of factors, such as the number of illegal acts, the number, identity and type of
troops involved, the effective command and control exerted over these troops, the logistics
involved, the widespread occurrence of the illegal acts, the tactical tempo of the operations, the
modus operandi of similar acts, the officers and staff involved, the location of the superior at the
time and the knowledge of that officer of criminal acts committed under his command”, Gali} Trial
Judgement, para 171.
1000 Kordi} Trial Judgement, para 387; Kvo~ka Trial Judgement, para 252; Naletili} Trial
Judgement, para 60. 1001 The Appeals Chamber has recently stated that a person “who orders an
act or omission with the awareness of the substantial likelihood that a crime will be committed in
the execution of that order, has the requisite mens rea for establishing liability under Article 7(1)
pursuant to ordering”, Bla{ki} Appeals Judgement, para 42 (emphasis added). In this respect, the
Chamber refers to the ILC Commentary on Article 6 of the Draft Code of Crimes Against The
Peace and Security of Mankind, dealing with the responsibility of a superior for ordering the
commission of a crime, which states that “a corps commander must be held responsible for the
acts of his subordinate commander in carrying out his orders...”, Report of the International Law
Commission on the work of
its 48th session, UN doc.A/51/10, p 36. 1002 Kordi} Trial Judgement, para 387; Kvo~ka Trial
Judgement, para 252; Naletili} Trial Judgement, para 60. The “but
for” test was not adopted in this respect. 1003 Kvo~ka Trial Judgement, para 252. 1004 Bla{ki}
Appeals Judgement, para 42; Kordi} Appeals Judgement, para 30. 1005 Gali} Trial Judgement,
para 172, êlebi}i Trial Judgement, para 328.
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mind, its proof is typically a matter of inference. The standard of proof dictates, of
course, that it be the only reasonable inference from the evidence. 1006
2. Findings
334. The Indictment alleges that on 6 December 1991, the Accused ordered the
unlawful artillery and mortar shelling of the Old Town of Dubrovnik conducted by
forces under his command, including the forces under the command of Captain
Kova~evi}, which were directly subordinated to the 9 VPS commanded by
Admiral Joki}.1007
335. The Prosecution submits that “[a]lthough there is no direct evidence of
ordering, circumstantial evidence exists such that the conclusion must be drawn
that the Accused gave an express or implied order to attack Sr| prior to the attack
which was launched on 6 December 1991.”1008 It further argues that “an express
or implied order by the Accused to attack Sr| on 6 December 1991 had to be an
order given with the awareness of the substantial likelihood that the Old Town
would also be unlawfully attacked during the course of the attack on Sr|.” 1009
In support of its allegations, the Prosecution submits that the JNA being an
orders driven army, it is highly unlikely that a commander would carry out a
deliberate attack in contravention of his superior commander’s intent. 1010 It
further refers to the alleged visit of Captain Kova~evi} to the command of the 2
OG on the eve of the attack and submits that the inability of two senior officers
from the 9 VPS (Warship-Captain Zec and Lieutenant-Colonel Kova~evi})
to stop the attack expeditiously on 6 December 1991 is evidence of the
fact that Captain Kova~evi} had received orders from a higher level. 1011 The
Prosecution draws the same conclusion from the Accused’s alleged
endorsement of Captain Kova~evi}’s version of the events. 1012 Finally, it refers to
Colm Doyle’s evidence as an admission on the part of the Accused of having
fired on the city of Dubrovnik.1013
336. The Defence submits that there is no evidence that the Accused issued any
orders to perpetrate the acts with which he is charged. 1014 In particular, it argues
that the Accused did not issue any orders to the 3/472 mtbr on 6 December
1991, except the order to respect the ceasefire. 1015 In this respect, the Defence
also points out that the Accused in fact issued orders prohibiting any
1006 Vasiljevi} Appeals Judgement, paras 120 and 128. 1007 Indictment, para 15. 1008
Prosecution Final Brief, para 266. 1009 Prosecution Final Brief, para 268.
1010 Prosecution Final Brief, para 270. 1011 Prosecution Final Brief, para 271. 1012
Prosecution Final Brief, para 274. 1013 Prosecution Final Brief, para 272. 1014
Defence Final Brief, para 583.
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attack on the Old Town.1016 It further disputes the evidence of Colm Doyle as
not relating to the Old Town,1017 and emphasises that, in its submission, the
attack on Sr| was planned and ordered by the command of the 9 VPS. 1018 With
respect to the required mens rea, the Defence submits that, in the absence of
any direct intent, one cannot infer that the Accused was aware of the substantial
likelihood that a crime would be committed from the mere position of the 3/472
mtbr, which was an infantry unit responsible for maintaining a blockade. 1019
Given the finding of the Chamber on the evidence, it is not necessary to
deal expressly with all of the matters raised in the submissions of the Prosecution
and the Defence.
337. Earlier in this decision, in particular when considering the interrelationship of
the Accused, Admiral Joki} and General Kadijevi}, the Chamber has made
findings material to these submissions. In particular, it is the finding of the
Chamber that the Accused ordered forces under his command to take Sr|. 1020
The order was given on 5 December 1991 for an attack on the morning of 6
December 1991.1021
338. In the finding of the Chamber the evidence does not, however, establish
that there was an express order of the Accused to attack or to fire on the Old
Town, or the greater city of Dubrovnik. The relevant order was directed against
Sr|.1022
339. That is not an end of the issue however. What occurred demonstrates, in
the finding of the Chamber, that the detailed planning and execution of the order
was left by the Accused to the 9 VPS1023 which had geographical responsibility for
Dubrovnik and its surrounds. There are unresolved issues about the role of the
commander of the 9 VPS, Admiral Joki}, but, in the finding of the Chamber, his
Chief of Staff Warship-Captain Zec and other 9 VPS staff officers were active in
the planning and execution of the order, both on 5 and 6 December 1991. 1024
The plan decided on was for a quick and confined land assault by a small
number of troops with artillery support. 1025 No air or sea forces were involved.1026
All forces were drawn from the 9 VPS. The ground troops making the attack
were from the 3/472 mtbr and commanded by Captain Kova~evi}. The 3/472
mtbr then occupied the hinterland around Sr|. The 3/472 mtbr was to provide
tanks and its
1015 Defence Final Brief, para 588. 1016 Defence Final Brief, para 592. 1017 Defence Final
Brief, para 591. 1018 Defence Final Brief, para 593. 1019 Defence Final Brief, paras 584-
587. 1020 See supra, para 167.
1021 See supra, para 169. 1022 See supra, paras 166-167. 1023 See supra, para 85. 1024 See
supra, paras 85-91. 1025 See supra, paras 90-91. 1026 Minister Rudolf, T 5618.
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own considerable artillery resources to support the attack. In addition, other units
of the 9 VPS were to provide further artillery support, in particular heavy 120mm
mortars and howitzer cannons.1027
340. While there is evidence that Captain Kova~evi}, who was to lead the attack,
went personally to the Accused’s headquarters at Trebinje on 5
Decembersometime between 1700 and 1900 hours,1028 that appears not to
have been unusual conduct for him1029 and the Chamber is not able to infer that
during this visit he received any direct instructions from the Accused, or gave the
Accused any details of the planning for the attack to occur the next morning. That
being so, the evidence does not establish, in the Chamber’s finding, that the
Accused directly participated in or knew of the detailed planning for the attack.
What was contemplated was, from a military viewpoint, an attack well within the
competence of the 9 VPS to plan and execute. As far as is established, the
Accused left this to the 9 VPS.
341. While very substantial provision was made for artillery support, the plans
that were developed are not shown to be inappropriate for the objective of
attacking and taking Sr|. There is nothing to suggest that they were outside the
scope of what was or ought to have been contemplated by the Accused in
respect of the troops and artillery to be employed in the assault. So far as the
evidence indicates the plan was one which, if well executed, should have
enabled the successful taking of Sr| well before 1200 hours on 6 December
1991.
342. While the attack ordered by the Accused was directed at Sr|, it is apparent
from the evidence, as noted elsewhere in this decision, that any such attack
necessarily contemplated that JNA artillery fire would be necessary against any
Croatian forces which threatened the JNA forces attacking Sr| and jeopardised
the success of the attack on Sr|.1030 As has been indicated the reality was
obvious that, apart from the limited Croatian forces on Sr| itself, any such
defensive action by the Croatian forces could only come from the very limited
artillery and other weapons in the wider city of Dubrovnik.
343. Given these circumstances, in the finding of the Chamber, the Accused with
his very considerable military knowledge and experience, was well aware that his
order to attack Sr| necessarily also involved the prospect that his forces might
well have need to shell any Croatian artillery and other military positions in the
wider Dubrovnik which, by their defensive action,
1027 See supra, para 91. 1028 Admiral Joki}, T4132-4133. Admiral Joki} specified that Captain
Kova~evi}’s presence in Trebinje on
5 December 1991 was confirmed by two officers from the command of the 2 OG and by Captain
Kova~evi}
himself when Admiral Joki} spoke with him before his transfer to The Hague, T 4132-4133; 4936.
1029 Admiral Joki}, T 3891-3892. 1030 See supra, para 129.
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threatened the attacking JNA troops on Sr| and the success of their attack to
capture Sr|. That is the inference the Chamber draws.
344. As the Chamber has found earlier, the JNA forces attacking Sr| did come
under limited but determined Croatian mortar, heavy machine gun (anti-aircraft
gun) and other fire directed from the wider Dubrovnik. 1031 This fire caused JNA
fatalities and other casualties on Sr|. 1032 It is clear that it threatened the
success of the attack. JNA artillery fire, by which we include heavy and light
mortars, cannons, ZIS guns and Maljutka rockets, was, in part, directed against a
number of these Croatian defensive positions in the wider Dubrovnik. 1033 The
JNA fire directed against these Croatian defensive positions no doubt also
caused damage to property in the immediate vicinity of the military targets. The
evidence does not explore that in any detail. Whether such JNA fire caused
civilian casualties is not examined in the evidence. The issue whether such
targeting of the wider Dubrovnik by the JNA forces had military justification or
was in contravention of international obligations is one which need not be
considered by the Chamber in this decision, as it falls beyond the scope of the
Indictment. This targeting by the JNA, as found earlier by the Chamber, was not
directed to targets in the Old Town.1034 On 6 December 1991, no Croatian
defensive fire was directed to Sr| or to other JNA positions from the Old Town,
and the JNA forces did not act under any other belief.
345. What did occur is that the JNA artillery did not confine its fire to targeting
Croatian military positions, let alone Croatian positions actually firing on the JNA
forces on Sr| or other JNA positions. The JNA artillery which was active that day
came to fire on Dubrovnik, including the Old Town, without regard to military
targets, and did so deliberately, indiscriminately and extensively over a prolonged
time. In respect of the shelling of the Old Town by the JNA, it caused substantial
damage to civilian property and loss of life and other casualties to civilians. It is
not proved that the Accused ordered this general artillery attack on Dubrovnik, or
the Old Town. The evidence indicates otherwise. His order was confined to an
attack on Sr|.1035 The implications with regard to the use of JNA artillery
against Dubrovnik, of the Accused’s ordered attack on Sr|, has not been shown
to extend to such a general artillery attack on Dubrovnik, or the Old Town.
346. For the purposes of the Accused’s individual criminal responsibility, so far
as it is alleged that he ordered the attack on the Old Town on 6 December 1991,
the further issue arises whether the Accused was aware of the substantial
likelihood that in the course of executing his order to
1031 See supra, para 122. 1032 See supra, paras 123-125. 1033 See supra, paras 196-214. 1034
See supra, paras 193-194; 211-214. 1035 See supra, para 167.
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attack Sr|, there would be a deliberate artillery attack by his forces on the Old
Town. Previous JNA shelling of Dubrovnik, during which there was unauthorised
shelling of the Old Town, in the course of JNA military action in October and
November 1991 in the vicinity of the city of Dubrovnik, including Sr|, 1036 would
certainly have alerted the Accused that this could occur, especially as the 3/472
mtbr had been identified to him as a likely participant in the November
shelling.1037
347. There were, however, relevant differences. The JNA operations in October
and November 1991 each involved a general widespread attack and advance
over several days by many JNA units over a wide front, with naval and air
support. The attack on Sr| in December 1991 was a much more limited operation
both in terms of the forces engaged in the attack, the ground to be gained and
the time allocated to the troops in which to do so. While the Accused’s order to
attack Sr| necessarily had the implication of JNA artillery support against
Croatian forces threatening the attacking JNA troops and the success of the
attack on Sr| including, if necessary, artillery fire against specific Croatian
defensive positions in Dubrovnik, that implication was of limited, specifically
targeted and controlled responsive fire by the Accused’s forces. The escalation
of JNA artillery fire on Dubrovnik into the deliberate, indiscriminate and extensive
shelling which occurred, although not dissimilar to the previous episodes, was a
marked step further than was implied by the Accused’s order, and occurred in
circumstances sufficiently different from the previous episodes as to reduce to
some degree the apparent likelihood of a repetition of the previous conduct of his
forces. While the circumstances known to the Accused, at the time of his order to
attack Sr|, can only have alerted him to the possibility that his forces would once
again ignore orders and resort to deliberate and indiscriminate shelling, it must
be established by the Prosecution that it was known to the Accused that there
was a substantial likelihood of this occurring. The risk as known to the Accused
was not slight or remote; it was clearly much more real and obvious.
Nevertheless, the evidence falls short, in the Chamber’s view, of establishing that
there was a “substantial likelihood” that this would occur known to the Accused
when he ordered the attack on Sr|.
1036 See supra, paras 48-50; 61-67. 1037 Following the shelling of the Old Town in November
1991, Admiral Joki} conducted an investigation and
concluded that the 3/472 mtbr and possibly the artillery of the 472 mtbr were in a position to shell
the Old Town. Admiral Joki} spoke inter alia with the Accused requesting the resignation of the
above two officers, T 3996- 3998.
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3. Conclusion
348. By virtue of the above, the Chamber finds that it has not been established
that the Accused is responsible under Article 7(1) of the Statute for ordering the
attack by the JNA on the Old Town of Dubrovnik on 6 December 1991.
B. Aiding and abetting
1. Law
349. Aiding and abetting has been defined in the case-law of the Tribunal as the
act of rendering
practical assistance, encouragement or moral support, which has a substantial
effect on the
perpetration of a crime,1038 before, during or after the commission of the crime, 1039
and irrespective
of whether these acts took place at a location other than that of the principal
crime.1040 It is not
necessary to establish a cause-effect relationship between the conduct of the
aider and abettor and
the commission of the crime, or that such conduct served as a conditio sine qua
non to the
commission of the crime.1041 However, the acts of the aider and abettor must
have “a direct and
substantial effect on the commission of the illegal act.” 1042 The Bla{ki} Appeals
Judgement left
open the possibility that in the circumstances of a given case an omission may
constitute the actus
reus of aiding and abetting.1043 Trial Chambers have held that this is the case,
for example, if a
person with superior authority is present at the crime scene, 1044 provided that his
presence had a
significant encouraging effect on the principal offender, 1045 or if there was an
explicit duty to act.1046
350. Regarding the requisite mens rea, it must be established that the aider and
abettor was aware that his acts were assisting in the commission of the crime by
the principal.1047 This awareness
1038 Bla{ki} Appeals Judgement, para 46; Vasiljevi} Appeals Judgement, para 102; Prosecutor v
Du{ko Tadi}, Case IT-94-1-A, Judgement, 15July 1999 (hereinafter “Tadi} Appeals Judgement”),
para229; êlebi}i Appeals Judgement, para 352.
1039 Bla{ki} Appeals Judgement, para 48. See also Aleksovski Trial Judgement, para 62,
Kunarac Trial Judgement, para 391; Kvo~ka Trial Judgement, para 256; Naletilic Trial
Judgement, para 63.
1040 Bla{ki} Appeals Judgement, para 48. See also Simi} Trial Judgement, para 162; Kvo~ka
Trial Judgement, para 256. 1041 Bla{ki} Appeals Judgement, para 48. 1042 Tadi} Appeals
Judgement, para 229: “The aider and abettor carries out acts specifically directed to assist,
encourage or lend moral support to the perpetration of a certain specific crim ... and this support
has a substantial effect upon the perpetration of the crime.” [emphasis added]; Vasilijevi} Appeal
Judgement, para 102; Bla{ki} Appeal Judgement, para 45.
1043 Bla{ki} Appeals Judgement, para 47. See also Krnojelac Trial Judgement, para 88,
Kunarac Trial Judgement, para 393.
1044 Bla{ki} Trial Judgement, para 284; Aleksovski Trial Judgement, para 65; Furundìja Trial
Judgement, para 274 1045 Vasiljevi} Trial Judgement, para 70. 1046 Simi} Trial Judgement, para
162. 1047 Tadi} Appeals Judgement, para 229; Aleksovski Appeals Judgement, para 162,
referring to the Furundìja
Judgement, para 249. Bla{ki} Appeals Judgement, para 49.
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need not have been explicitly expressed, but it may be inferred from all relevant
circumstances.1048 While the aider and abettor need not share the mens rea of
the principal, he must be aware of the essential elements of the crime ultimately
committed by the principal.1049 It is not necessary that the aider and abettor
know the precise crime that was intended or actually committed, as long as he
was aware that one or a number of crimes would probably be committed, and
one of these crimes was in fact committed.1050
2. Findings
351. The Indictment alleges that on 6 December 1991, the Accused aided and
abetted the unlawful shelling of the Old Town of Dubrovnik conducted by forces
under his command, including forces under the command of Captain Kova~evi},
which were directly subordinated to the 9 VPS commanded by Admiral Joki}. 1051
352. The Prosecution submits that the Accused’s acts or omissions on 6
December 1991 “not only give rise to Article 7(3) responsibility under the Statute
but were so egregious as to constitute aiding and abetting under Article 7(1).” It
refers in particular to the Accused’s failure to intervene on the morning of 6
December 1991 and his subsequent efforts to enable his subordinates to avoid
punishment for their offences.1052
353. The Defence submits that there is no evidence showing that the Accused
lent any support to the commission of the alleged crimes as his acts and
omissions were for the most part geographically and temporally removed from
the crimes and had no decisive effect on them. Furthermore, the Defence
submits that no evidence was adduced that shows that the Accused knew that
the crimes were to be committed and that he was aware that his acts were
assisting the principal offenders.1053 There were further submissions but these
depended on factual bases which the Chamber has not accepted.
354. As discussed earlier, the Chamber has found that on 5 December 1991 the
Accused ordered forces under his command to take Sr|. 1054 The Chamber
also found that the deliberate and unlawful shelling of the Old Town that occurred
on 6 December was not implied in the Accused’s
1048 êlebi}i Trial Judgement, para 328; Tadi} Trial Judgement, 676. 1049 Aleksovski Appeals
Judgement, para 162. 1050 Bla{ki} Appeals Judgement, para 50. See also Naletili} Trial
Judgement, para 63; Kvo~ka Trial Judgement,
para 255. 1051 Indictment, para 15. 1052 Prosecution Final Brief, para 278. 1053
Defence Final Brief, para 596. 1054 See supra, para 167.
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order.1055 In the Chamber’s view, therefore, the Accused’s order to attack Sr| did
not have a substantial effect on preparations for the crimes charged in the
Indictment and does not constitute an actus reus for engaging his responsibility
for aiding and abetting under Article 7(1) of the Statute.
355. Turning to the Accused’s actions on 6 December 1991, the Chamber notes
that, as found elsewhere in this decision, as of about 0700 hours that day the
Accused was on notice of the risk that forces under his command were
committing offences such as those charged. 1056 While the evidence does not
suggest that the Accused took all necessary and reasonable measures to ensure
effectively that the unlawful attack on the Old Town ceased, neither does the
evidence suggest that the Accused remained entirely inactive. In particular the
Accused issued a general ceasefire order to take effect at 1115 hours. 1057 While
the evidence does not suggest that this order was communicated to all forces
involved in the attack on 6 December, or that it proved adequate to ensure an
effective ceasefire,1058 it remains the case that the Accused issued such order.
While, as found later in this decision, the Accused did not initiate or ensure that
his subordinates initiated an effective investigation into the events of 6 December
and did not take steps towards the discipline and the punishment of the
perpetrators,1059 the Chamber is not satisfied that conduct of this nature, well after
the offences were committed, could have a direct and substantial effect on the
commission of the offences. In view of the fact that the Accused made an
effort, albeit ineffective, to stop the firing, and in the absence of more settled
jurisprudence as to whether, and if so in what circumstances, an omission may
constitute the actus reus of aiding and abetting, in circumstances such as the
present, it is the view of the Chamber that the Accused’s failure to take more
effective measures to stop the unlawful shelling of the Old Town is more properly
regarded in the context of the Accused’s responsibility as a superior under Article
7(3) of the Statute. Further, the evidence does not satisfy the Chamber that the
required intent has been established.
3. Conclusion
356. In view of the above, the Chamber finds that it has not been established
that the Accused is responsible under Article 7(1) of the Statute for aiding and
abetting the unlawful shelling on the Old Town of Dubrovnik on 6 December
1991.
1055 See supra, paras 338-347. 1056 See infra, para 418. 1057 Exhibit P23. 1058 See infra, paras
428-429. 1059 See infra, para 444.
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357.
Article 7(3) of the Statute reads:
C. Command responsibility
1. Law
The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by
a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to
know that the subordinate was about to commit such acts or had done so and the superior failed
to take the necessary and reasonable measures to prevent such acts or to punish the
perpetrators thereof.
The principle of individual criminal responsibility of superiors for failure to prevent
or to punish crimes committed by subordinates is an established principle of
international customary law,1060 applicable to both international and internal
armed conflicts.1061
358. It has been established that the following three elements need to be
satisfied in order to invoke individual criminal responsibility under Article 7(3):
(i) the existence of a superior-subordinate relationship; (ii) the superior knew or had reason to
know that the criminal act was about to be or had been committed; and (iii) the superior failed to
take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator
thereof.1062
(a) Superior-subordinate relationship
359. The superior-subordinate relationship lies in the very heart of the doctrine of
a commander’s liability for the crimes of his subordinates. It is the position of
command over the perpetrator which forms the legal basis for the superior’s duty
to act, and for his corollary liability for a failure to do so. 1063 Indeed, as was
held in previous jurisprudence, the doctrine of command responsibility is
“ultimately predicated upon the power of the superior to control the acts of his
subordinates”.1064
360. The existence of such a position of command derives in essence from the
“actual possession or non-possession of powers of control over the actions of
subordinates.”1065 In determining the
1060 êlebi}i Appeals Judgement, para 195; êlebi}i Trial Judgement, para 343. 1061 For
application of the principle of command responsibility to internal armed conflicts, see Prosecutor v
Hadìhasanovi} et al., Case No IT-01-47-AR72, Appeals Chamber Decision on Interlocutory
Appeal Challenging
Jurisdiction in Relation to Command Responsibility, 16 July 2003, para 31. 1062 êlebi}i Trial
Judgement, para 346. See also Kordi} Trial Judgement, para 401; Bla{ki} Trial Judgement,
para 294; Kov~ka Trial Judgement, para 314. 1063 Aleksovski Appeals Judgement, para 76. See
also ICRC Commentary on the Additional Protocols, which states
that “responsibility for a breach consisting of a failure to act can only be established if the person
failed to act when he had a duty to do so.”, p 1010. See also the ILC commentary on the 1996
Draft Code of Crimes Against The Peace and Security of Mankind, Report of the International
Law Commission on the work of its 48th session, UN doc.A/51/10, p. 36.
1064 êlebi}i Trial Judgement, para 377. 1065 êlebi}i Trial Judgement, para 370.
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degree of control to be exercised by the superior over the subordinate, the
Appeals Chamber endorsed the effective control standard 1066 and held that
The concept of effective control over a subordinate - in the sense of a material ability to prevent
or punish criminal conduct, however that control is exercised - is the threshold to be reached in
establishing a superior -subordinate relationship for the purpose of Article 7(3) of the Statute. 1067
361. In the present case, the issue is raised whether a commander may be found
responsible for the crime committed by a subordinate two levels down in the
chain of command.1068
362. It appears from the jurisprudence that the concepts of command and
subordination are relatively broad. Command does not arise solely from the
superior’s formal or de jure status,1069 but can also be “based on the existence of
de facto powers of control”.1070 In this respect, the necessity to establish the
existence of a superior-subordinate relationship does “not [...] import a
requirement of direct or formal subordination”.1071 Likewise, there is no
requirement that the relationship between the superior and the subordinate be
permanent in nature.1072 The temporary nature of a military unit is not, in itself,
sufficient to exclude a relationship of subordination. 1073
363. Consistently with the above reasoning, other persuasive sources seem to
indicate that there is no requirement that the superior-subordinate relationship be
immediate in nature for a commander to be found liable for the acts of his
subordinate. What is required is the establishment of the superior’s effective
control over the subordinate, whether that subordinate be immediately
answerable to that superior or more remotely under his command. The Chamber
refers to the ICRC Commentary dealing with the concept of a “superior” within
the meaning of Article 86 of Additional Protocol I, the provision on which Article
7(3) of the Statute is based, which emphasises
1066 The Appeals Chamber endorsed the finding of the Trial Chamber that “it is necessary that
the superior have effective control over the persons committing the underlying violations of
international humanitarian law, in the sense of having the material ability to prevent and punish
the commission of these offences”, êlebi}i Trial Judgement, para 378.
1067 êlebi}i Appeals Judgement, para 256. In this respect, factors indicative of an accused’s
position of authority and how means of effective control may be demonstrated may include the
official position held by the accused, his capacity to sign orders, whether de jure or de facto, the
procedure for appointment, the position of the accused within the military or political structure and
the actual tasks that he performed. See Kordi} Trial Judgement, paras 418-424. The Appeals
Chamber has rejected the argument that a superior may be held criminally liable on the basis of
his powers of influence as it held that “substantial influence as a means of control in any sense
which falls short of possession of effective control over subordinates” (i.e. possession of material
ability to prevent or to punish) has no standing of rule of customary law, especially such that may
trigger criminal liability. See êlebi}i Appeals Judgement, para 266.
1068 See infra, para 391. 1069 êlebi}i Appeals Judgement, para 193. 1070 êlebi}i Appeals
Judgement, para 195. 1071 êlebi}i Appeals Judgement, para 303. 1072 As stated in the
ICRC Commentary in relation to Article 87 of Additional Protocol I dealing with the duty of
commanders, “[a] commander may, for a particular operation and for a limited period of time, be
supplied with reinforcements consisting of troops who are not normally under his command. He
must ensure that these members of the armed forces comply with the Conventions and the
Protocol as long as they remain under his command.” See ICRC Commentary on the Additional
Protocols, p 1019.
Case No IT-01-42-T
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that the term does not only cover immediate superiors. Again, the issue is seen
as one of control rather than formal direct subordination. It states
This is not a purely theoretical concept covering any superior in a line of command, but we are
concerned only with the superior who has a personal responsibility with regard to the perpetrator
of the acts concerned because the latter, being his subordinate, is under his control. The direct
link which must exist between the superior and the subordinate clearly follows from the duty to act
[...] Furthermore, only that superior is normally in the position of having information enabling him
to conclude in the circumstances at the time that the subordinate has committed or is going to
commit a breach. However, it should not be concluded from this that this position only concerns
the commander under whose direct orders the subordinate is placed [...] The concept of the
superior is broader and should be seen in terms of a hierarchy encompassing the concept of
control.”1074
364. Japanese Admiral Soemu Toyoda tried in the aftermath of World War II. The
military tribunal expressly stressed the irrelevance of the level of subordination as
it stated
In the simplest language it may be said that this Tribunal believes the principle of command
responsibility to be that, if this accused knew, or should by the exercise of ordinary diligence have
learned, of the commission by his subordinates, immediate or otherwise, of the atrocities proved
beyond a shadow of a doubt before this Tribunal or of the existence of a routine which would
countenance such, and, by his failure to take any action to punish the perpetrators, permitted the
atrocities to continue, he has failed in his performance of his duty as a commander and must be
punished.1075
Further support can be found in the judgement of the military tribunal in the case
against the
365. Article 6 of the Draft Code of Crimes Against the Peace and Security of
Mankind construing the use of the term “superiors” in the plural form as an
indication that the doctrine of command responsibility “applies not only to the
immediate superior of a subordinate, but also to his other superiors in the military
chain of command or the governmental hierarchy if the necessary criteria are
met.”1076 In this respect, the Chamber also recalls that “the test of effective
control ... implies
1073 Kunarac Trial Judgement, para 399. 1074 ICRC Commentary on the Additional
Protocols, p 1013. The Military Tribunal hearing the High Command Case
similarly held that “[c]riminality does not attach to every individual in this chain of command from
that fact alone. There must be a personal dereliction. That can occur only where the act is directly
traceable to him or where his failure to properly supervise his subordinates constitutes criminal
negligence on his part. In the latter case it must be a personal neglect amounting to a wanton,
immoral disregard of the action of his subordinates amounting to acquiescence.” United States. v.
Wilhelm von Leeb et al., Trials of War Criminals Before the Nuremberg Military Tribunals Under
Control Council Law No. 10, Vol. XI, pp 543-544.
1075 United States v. Soemu Toyoda, Official Transcript of the Record of Trial, p 5006
(emphasis added). In this respect, the Trial Chamber further refers to the following finding of the
Military Tribunal in the Hostage Case in relation to the defendant Dehner: “The defendant
excuses his indifference to all these killings by saying that it was the responsibility of the division
commanders. We agree that the divisional commanders are responsible for ordering the
commission of criminal acts. But the superior commander is also responsible if he orders,
permits, or acquiesces in such criminal conduct. His duty and obligation is to prevent to acts, or if
they have been already executed, to take steps to prevent their recurrence.” United States v.
Wilhelm List et al., Trials of War Criminals before the Nuremberg Military Tribunals under Control
Council Law No. 10, Vol. XI, p 1298.
1076 Report of the International Law Commission on the work on its forty-eight session, 6 May-
26 July 1996, UN doc. A/51/10, p 37.
Reference may also be made to the Commentary of the International Law
Commission on
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that more than one person may be held responsible for the same crime
committed by a subordinate.”1077
366. In light of the above, the Chamber holds that there is no legal requirement
that the superior- subordinate relationship be a direct or immediate one for a
superior to be found liable for a crime committed by a subordinate, provided that
the former had effective control over the acts of the latter. As to whether the
superior has the requisite level of control, the Chamber considers that this is a
matter which must be determined on the basis of the evidence presented in each
case.
(b) Mental element: the superior knew or had reason to know
367. A superior may be held responsible under Article 7(3) of the Statue for
crimes committed by a subordinate if, inter alia, he knew or had reason to know
that the subordinate was about to commit or had committed such crimes.
368. A superior’s actual knowledge that his subordinates were committing or
were about to commit a crime cannot be presumed, but it may be established by
circumstantial evidence.1078 Factors that may be considered in this respect
include the number, type and scope of illegal acts, time during which the illegal
acts occurred, number and types of troops and logistics involved, geographical
location, whether the occurrence of the acts is widespread, tactical tempo of
operations, modus operandi of similar illegal acts, officers and staff involved, and
location of the commander at the time. 1079
369. The jurisprudence of the Tribunal has considered the issue of when a
superior “had reason to know.” As held by the êlebi}i Trial Chamber, a superior
can be held criminally responsible only if specific information was in fact available
to him which would provide notice of offences committed by his subordinates, 1080
or of offences about to be committed. A superior is not liable for failing to acquire
such information in the first place.1081 The mental element of “reason to know” is
determined only by reference to the information in fact available to the superior.
However the information in fact available to him need not be such that, by itself, it
was sufficient to compel the conclusion of the existence of such crimes. 1082 It is
sufficient that the superior was put on
1077 Bla{ki} Trial Judgement, para 303, referring to Aleksovski Trial Judgement, para 106. 1078
êlebi}i Trial Judgement, para 386. 1079 êlebi}i Trial Judgement, para 386. See also
Kordi} Trial Judgement, para 427 and Bla{ki} Trial Judgement,
para 307. 1080 êlebi}i Trial Judgement, para 393. 1081 Bla{ki} Appeals Judgement, para
62, êlebi}i Appeals Judgement, para 226. 1082 êlebi}i Trial Judgement, para 393.
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further inquiry by the information, i.e. that it indicated the need for additional
investigation in order to ascertain whether offences were being committed or
were about to be committed.1083
370. The Appeals Chamber upheld this approach and held that a superior will be
criminally responsible by virtue of the principles of superior responsibility only if
information was available to him which would have put him on notice of offences
committed by subordinates,1084 or about to be committed. It was further observed
that even general information in his possession, which would put him on notice of
possible unlawful acts by his subordinates would be sufficient. 1085 A superior
may be regarded as having “reason to know” if he is in possession of sufficient
information to be on notice of the likelihood of illegal acts by his subordinates,
i.e., if the information available is sufficient to justify further inquiry. 1086
371. This Chamber will approach its decision on the basis on this jurisprudence.
(c) Necessary and reasonable measures
372. The question of whether a superior has failed to take all necessary and
reasonable measures to prevent the commission of an offence or to punish the
perpetrators is intrinsically connected to the question of that superior’s position of
power. As the Tribunal’s definition of a “superior” requires the existence of
effective control, whether de jure or de facto, a superior will be held responsible
for failing to take such measures that are within his material possibility. Therefore
the question whether a superior had explicit legal capacity to take such measures
will be immaterial if he had the material ability to act. 1087
373. Article 7(3) does not provide a superior with two alternative options, but
contains two distinct legal obligations to prevent the commission of the offence
and to punish the perpetrators.1088 The duty to prevent arises for a superior
from the moment he acquires knowledge or has reasonable grounds to suspect
that a crime is being or is about to be committed, while the duty to punish arises
after the commission of the crime.1089 Therefore, if a superior has knowledge
or has reason to know that a crime is being or is about to be committed, he has a
duty to prevent the crime from happening and is not entitled to wait and punish
afterwards.
1083 êlebi}i Trial Judgement, para 393; Kordi} Trial Judgement, para 437. 1084 êlebi}i Appeals
Judgement, para 241; Bla{ki} Appeals Judgement, para 62. 1085 êlebi}i Appeals Judgement, para
238. 1086 Kordi} Trial Judgement, para 437. 1087 êlebi}i Trial Judgement, para 395 (footnotes
omitted). See also Kordi} Trial Judgement, para 443. 1088 Bla{ki} Appeals Judgement, para 83. 1089
Bla{ki} Appeals Judgement, para 83; Kordi} Trial Judgement, paras 445-446.
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374. What the duty to prevent will encompass will depend on the superior’s
material power to intervene in a specific situation. In establishing individual
responsibility of superiors, military tribunals set up in the aftermath of World War
II have considered factors such as the superior’s failure to secure reports that
military actions have been carried out in accordance with international law, 1090 the
failure to issue orders aiming at bringing the relevant practices into accord with
the rules of war,1091 the failure to protest against or to criticize criminal action, 1092
the failure to take disciplinary measures to prevent the commission of atrocities
by the troops under their command,1093 and the failure to insist before a superior
authority that immediate action be taken. 1094 The International Military Tribunal for
the Far East has held that a superior’s duty may not be discharged by the
issuance of routine orders and that more active steps may be required:
The duty of an Army commander in such circumstances is not discharged by the mere issue of
routine orders... His duty is to take such steps and issue such orders as will prevent thereafter the
commission of war crimes and to satisfy himself that such orders are being carried out. 1095
375. A superior’s duty to prevent the commission of a crime is explicitly provided
for by post World War II treaties. Additional Protocol I requires any commander
who is aware that his subordinates are about to commit a crime “to initiate such
steps as are necessary to prevent such violations.” 1096 The ICRC commentary
to the above text notes that this duty varies for each level of command, and by
way of example, may imply that “a lieutenant must mark a protected place which
he discovers in the course of his advance, a company commander must ensure
that an attack is
1090 Hostages Case, 11 TWC 759, p 1290. The defendant Rendulic was held responsible for
acts of his subordinates for reprisals against the population, in the light of, inter alia, the fact that
he made no attempt to secure additional information (after receiving reports indicating that crimes
have been committed). Similarly, in holding the defendant Dehner responsible, the military
tribunal considered the fact that the defendant made no effort to require reports showing that
hostages and reprisal prisoners were shot in accordance with international law. p 1298; 1271.
1091 Hostages Case, 11 TWC 759, p 1311. With respect to the responsibility of the defendant
Lanz for reprisal carried out by his subordinates the military tribunal held: “This defendant, with
full knowledge of what was going on, did absolutely nothing about it. Nowhere an order appear
which has for its purpose the bringing of the hostage and reprisal practice within the rules of
war... As commander of eth XXII Corps it was his duty to act and when he failed to do so and
permitted these inhumane and unlawful killings to continue, he is criminally responsible.” p 1311.
1092 High Command Case, 11 TWC 1, p 623. In finding the defendant Hans von Salmuth
responsible, the military tribunal held inter alia that “it appears that in none of the documents or
the testimony herein that the defendant in anyway protested against or criticized the action of the
SD or requested their removal or punishment.” (emphasis added). Similarly, in the Hostage Case
the military tribunal found the defendant Wilhelm List responsible inter alia in the light of the fact
that “[n]ot once did he condemn such acts as unlawful. Not once did he call to account those
responsible for these inhumane and barbarous acts.” Hostage Case, 11 TWC 759, p 1272.
1093 The Tokyo Judgment, The International Military Tribunal for the Far East, Volume I, p 452.
The International Military Tribunal for the Far East held with respect to the defendant Kimura that
“[h]e took no disciplinary measures or other steps to prevent the commission of atrocities by the
troops under his command.”
The Tokyo judgment found that the defendant Hirota “was derelict in his duty in not insisting
before the Cabinet that immediate action be taken to put an end to the atrocities, failing any other
action open to him to bring about the same result. He was content to rely on assurances which he
knew were not being implemented...”
1096 Additional Protocol I, Article 87(3).
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interrupted when he finds that the objective under attack is no longer a military
objective, and a regimental commander must select objectives in such a way as
to avoid indiscriminate attacks.”1097
376. A superior’s duty to punish the perpetrators of a crime includes at least an
obligation to investigate possible crimes, to establish the facts, and if the superior
has no power to sanction, to report them to the competent authorities. 1098
Military tribunals established after World War II have interpreted the
superiors’ duty to punish as implying an obligation for the superiors to conduct an
effective investigation1099 and to take active steps to secure that the perpetrators
will be brought to justice.1100 Relevant in this respect could also be whether
the superior has called for a report on the incident and the thoroughness of the
investigation.1101
377. Further guidance as to what the duty to punish may entail is provided by
Additional Protocol I. Article 87(3) of AP I requires a commander who is aware
that his subordinates have committed a breach of the Geneva Conventions or the
Protocol “... where appropriate to initiate disciplinary or penal action” against
them. The ICRC commentary suggests that this action may include informing
their superior officers of the situation, “drawing up a report in the case of a
breach, [...] proposing a sanction to a superior as disciplinary power, or – in the
case of someone who holds such power himself – exercising it, within the limits
of his competence, and finally, remitting the case to the judicial authority where
necessary with such factual evidence which is possible to find.” 1102
1097 ICRC Commentary on the Additional Protocols, paras 3560-3561, p 1022. 1098 Kordi}
Trial Judgement, para 446. 1099 The Trial of General Tomoyuki Yamashita, The United Nations
War Crimes Commission, Law Reports of Trials
of War Criminals, Volume IV, p 35: “...where murder and rape and vicious, revengeful actions are
widespread offences and there is no effective attempt by a commander to discover and control
the criminal acts, such commander may be held responsible, even criminally liable, for the
lawless acts of his troops...” (emphasis added) See also The Tokyo Judgment, The International
Military Tribunal for the Far East, Volume I, p 458. The Tokyo judgment found that the defendant
Shigemitsu “took no adequate steps to have the matter investigated... He should have pressed
the matter, if necessary to the point of resigning, in order to quit himself of a responsibility which
he suspected was not being discharged.” The Tokyo Judgment, The International Military
Tribunal for the Far East, Volume I, p 458 (emphasis added).
1100 High Command Case, p 623: When assessing Hans von Salmuth’s responsibility for
actions by his subordinates, the military tribunal considered the fact that the only punishment
inflicted was a 20-day confinement sentence against a member of his own staff for unauthorized
participation in this action. High Command Case, p 623. In the Hostage Case, the military tribunal
considered the defendant’s commitment to conduct an adequate investigation and to bring the
perpetrators to justice: “The investigation was made, the battle report of the commanding officer
was found to be false, and the action of the regimental commander found to be in excess of
existing orders. Upon the discovery of these facts the defendant Felmy recommended that
disciplinary action be taken against the officer in charge in consideration of the sacrifices of the
regiment in the combat area at the time. The defendant testified that he never knew what
punishment, if any was assessed against this guilty officer. He seems to have had no interest in
bringing the guilty officer to justice.” Hostage Case, p 1309.
1101 The International Military Tribunal for the Far East found the defendant Tojo responsible for
not taking adequate steps “to punish the offenders and to prevent the commission of similar
offences in the future. ... He did not call for a report on the incident. ... He made perfunctory
inquires about the march but took no action. No one was punished.” The Tokyo Judgment, The
International Military Tribunal for the Far East, Volume I, p 462.
1102 ICRC Commentary on the Additional Protocols, para 3562, p 1023.
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378. In view of the above the question whether all necessary and reasonable
measures to prevent the commission of crimes or to punish the perpetrators have
been taken should be considered in light of the Accused’s material powers at that
time. Factors relevant to the Chamber’s assessment include, but are not limited
to, whether specific orders prohibiting or stopping the criminal activities were
issued; what measures to secure the implementation of these orders were taken;
what other measures were taken to secure that the unlawful acts were
interrupted and whether these measures were reasonably sufficient in the
specific circumstances; and, after the commission of the crime, what steps were
taken to secure an adequate investigation and to bring the perpetrators to justice.
2. Findings
(a) Superior-subordinate relationship (i) Command structure
379. The 2 OG was formed in mid September 1991 1103 by the General Staff of
the JNA.1104 It was a temporary formation at the level of an army 1105 and was
in existence well into 1992.1106 Its geographic area of responsibility included the
territory from the Bay of Kotor in the south, to Neretva River in the north 1107 and to
Mostar in the territory of current day Bosnia and Herezgovina, 1108 thus
encompassing the city and surroundings of Dubrovnik. Its headquarters were
initially located in Kifino Selo,1109 but in October 1991 were relocated to the town
of Trebinje in Bosnia and Herzegovina.1110
380. In September 1991 the commander of the 2 OG was General Jevrem
Coki}.1111 In late September or early October 1991 he was replaced by General
Ruzinovski.1112 On 12 October 1991
1103 Admiral Joki}, T 3822; 4586. 1104 Milovan Zorc, T 6564; Exhibit P204, p 26. 1105 Admiral
Joki}, T 3822; 4418; 4586. 1106 Colonel Jovanovi}, T 7040-7041. Admiral Joki} testified that the 2
OG commanded all units involved in the
Dubrovnik operation through May 1992 (Admiral Joki} T 4995). 1107 Admiral Joki} testified that
the area of responsibility of the 2 OG included ran to Neretva River, T 4418. Adrien
Stringer however believed that it extended to Slano in the north, T 316. 1108 Adrien Stringer
testified that at a meeting held on 11 October 1991, General Ruzinovski, who spoke as the
commander of the 2 OG outlined the area of command of the 2 OG as running from the Bay of
Kotor in the south to Slano in the north and to Mostar in Bosnia and Herezgovina, T 316. See
also Admiral Joki}, T 4418; Milovan Zorc, T 6565.
1109 Admiral Joki}, T 3823. 1110 Admiral Joki}, T 3860-3861; See also Exhibit P115, a letter
of 7 November 1991 addressed to the Headquarters of
the 2 OG in Trebinje; On 6 December 1991 Colm Doyle met with the Accused in the command
post of the 2 OG
in Trebinje, T 1708-1710. 1111 Colonel Svi~evi}, T 7057-7058; Exhibit D44, a document dated 29
September 1991 and signed by General Coki},
the commander of the 2 OG; Captain Ne{i}, T 8200. 1112 Admiral Joki}, T 3824; See also Adrien
Stringer, T 311; 315. At a meeting held on 11 October 1991 General
Ruzinovski spoke as a commander of the 2 OG. Colonel Svi~evi}, T 7058.
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the Accused assumed command of the 2 OG 1113 and remained the commander of
the 2 OG well into 1992.1114
381. On 7 October 1991 the 2 OG consisted of the following five units: 37 Corps
(the Uzice Corps) under the command of General Milan Torbica; 2 Corps (the
Podgorica Corps) under the command of General Dragutin Eremija; 9 VPS
(Boka), which on 7 October was under the acting command of Warship-Captain
Zec, until Admiral Joki} took over the following day; 472 mtbr (Trebinje Brigade),
under the command of Colonel Obrad Vici}, and the newly established 2 Tactical
Group active in the region of Konavle, under the command of General Branko
Stankovi}. The commanders of these units were directly subordinated to the
Accused.1115
382. In October and November 1991 some changes to the command structure of
the 2 OG were introduced. As of 21 October 1991 the 2 Tactical Group was
disbanded and its units were resubordinated to other establishments. 1116 As a
result, the 3/5 mtbr from Podgorica, initially part of the 2 Tactical Group, was re-
subordinated to the 9 VPS and remained under the command of the 9 VPS until
at least 31 December 1991.1117
383. Changes were also made with respect to the 472 mtbr. On 25 October 1991
by an order issued by the Accused, the 472 mtbr was removed from direct
subordination to the 2 OG and was re-subordinated to the 9 VPS. 1118 On 20
November 1991 by an order of Admiral Joki} issued pursuant to a decision of the
2 OG, the 472 mtbr, except for its 3rd Battalion (3/472 mtbr), left the composition
of the 9 VPS and was subordinated to the 2 Corps. The 3/472 mtbr remained
directly subordinated to the 9 VPS for the remainder of 1991 and well into
1992.1119
384. As a result of these changes to the command structure of the 2 OG, on 6
December 1991 the 2 OG consisted of the following three units: the 37 Corps,
the 2 Corps, and the 9 VPS.1120
1113 Exhibit P135; Admiral Joki}, T 3824; Adrien Stringer, T 339. At a meeting between the
ECMM and the JNA held on 14 October 1991 the JNA liaison officer announced that he would
refer the discussed matter to the Accused, the new Commanding General, Adrien Stringer, T 339.
1114 Admiral Joki}, T 3831; Per Hvalkof, T 2301-2302; On 6 December1991 the Accused was
the senior JNA commander in the area, Colm Doyle, T 1724. See also Colm Doyle, Meeting in
February 1992 with the head of the monitoring mission, Ambassador Salgueiro, Colm Doyle, T
1724.
1115 Admiral Joki}, T 3826-3827; Exhibit P99. Per Hvalkof testified that the ECMM operational
staff prepared organisational charts of the JNA command structure in the respective areas. (T
2215-2216) Based on that information the Accused was the commander of the JNA forces in the
region for the entire time between October and December 1991, Per Hvalkov, T 2216-2217.
1116 Admiral Joki}, T 3862; 4502. 1117 Admiral Joki}, T 3845; 3847; 4593; Exhibit P100. See
also Lieutenant-Colonel Jovanovi}, T 8072. 1118 Exhibit D43; Admiral Joki}, T 3837; 3954;
4401-4403; Milovan Zorc, T 6691-6692; Lieutenant-Colonel Pavi~i},
T 6923-6925. 1119 Exhibit P101; Admiral Joki}, T 3834-3835; 4494; 4595; Milovan Zorc, T 6604-
6605; Lieutenant-Colonel Pavi~i},
T 6895; 6930. 1120 Admiral Joki}, T 3831; Exhibit P100; Milovan Zorc, T 6550; 6688-6689.
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385. The 9 VPS included the following units: the 3/5 mtbr, the 3/472 mtbr, the 3
Light Brigade, the Trebinje Territorial Defence branch and corresponding
battalion, some territorial units, and the 107 Coastal Artillery Group (OAG). 1121
Initially, the 9 VPS headquarters were located in Kumbor, Montenegro. 1122
Subsequently, a forward command post was set up in Kupari, near
Dubrovnik.1123 The commander of the 9 VPS was Admiral Joki}. 1124
386. The 3/472 mtbr numbered approximately 700 troops. It consisted of four
companies; three infantry companies each of which had 82mm mortars, and an
anti-tank company. 1125 It also had a 120 mm mortar battery.1126 From late
October 1991 and throughout the remainder of 1991 and well into 1992 the 3/472
mtbr was under the command of Captain Kova~evi}, also known as “Rambo.” 1127
387. The 3/5 mtbr had a composition similar to that of the 3/472 mtbr. In addition
it had a company of armoured carriers.1128 The commander of the 3/5mtbr was
Major Srboljub Zdravkovi}1129 who, on 5 December 1991, was granted leave and
was temporarily replaced by Lieutenant-Colonel Jovanovi}, the Brigade’s Chief of
Staff.1130 On 5 and 6 December 1991 Lieutenant-Colonel Jovanovi} was in
temporary command of that unit,1131 but was summarily relieved of that command
on the order of Admiral Joki} on the evening of 6 December 1991, i.e. effectively
he acted as commander of the 3/5 mtbr only for the time the attack was planned
and implemented.1132
388. The 3rd Light Brigade consisted of 1200 to 1300 men and had weak artillery.
It was used for auxiliary tasks and for control of territories. The Trebinje Territorial
Defence branch and the corresponding battalions did not participate in combat
operations.1133
1121 Admiral Joki}, T 3831-3832; Exhibit P100; Exhibit D46. The units indicated on Exhibit P100
are ground units only; the complete structure of the 9 VPS included also a number of naval forces
and is indicated in Exhibit D46. See also Admiral Joki}, T 4485-4493. See also Milovan Zorc, T
6559 with respect to the 3/472 mtbr. With respect to 107 OAG see Captain Pepi}, T 7473-7475.
1122 Admiral Joki}, T 3859. See also Frigate-Captain Handìjev, T 7587. 1123 Admiral Joki}, T
3859. 1124 Admiral Joki}, T 3824; See also Exhibit P204, p 19. 1125 Admiral Joki}, T 3836.
1126 Admiral Joki}, T 3845. 1127 Admiral Joki}, T 4095-4096; Lieutenant Lemal, T 7346.
Lieutenant-Colonel Stojanovi} testified that Captain
Kova~evi} became the commander of the 3rd Battalion on 21 October 1991, T 7796. With respect
to Captain Kova~evi} remaining in office until at least the end of December 1991, see Admiral
Joki}, T 4119; 3833; 4130 and Exhibit P133.
1128 Admiral Joki}, T 3846. 1129 Admiral Joki}, T 3845, Exhibit P100. 1130 Lieutenant-
Colonel Jovanovi}, T 8075; 8071-8072; 8077; Admiral Joki}, T 8551-8552. 1131 Admiral Joki}, T
4103-4104; Lieutenant-Colonel Jovanovi}, T 8082. 1132 Colonel Jovanovi}, T 8093-8094;
Admiral Joki}, T 8553. 1133 Admiral Joki}, T 3846-3847.
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389. The 107 OAG had five batteries, including one 85mm howitzer and one
130mm howitzer battery.1134 From the end of October 1991 to early 1992, the
130mm battery and the 85mm battery were located at îlipi airport. 1135 The
commander of the 107 OAG was Lieutenant-Colonel Stamenov. 1136
390. Some Defence witnesses suggested that the 9 VPS was within the Military
Naval District (VPO) and that their superior military command was the command
of the VPO, as might be suggested by some orders the 9 VPS received from the
VPO.1137 Indeed, in peacetime the 9 VPS was a regular component of the VPO.
However, in the period from October 1991 and well into 1992 the 9 VPS was part
of 2 OG and received its combat assignments from the command of the 2 OG. 1138
During that period the 9 VPS was no longer under VPO operational
control.1139 The VPO may have continued to have some limited connection
principally of an administrative character with the 9 VPS in naval matters, but in
the Chamber’s finding the evidence establishes that this did not detract from the
place of the 9 VPS as a part of the 2 OG. 1140
391. In view of the above, the Chamber is satisfied that on 6 December 1991 the
3/472 mtbr, the 3/5 mtbr, and the 107 OAG, among other units, were directly
subordinated to the 9 VPS, which was subordinated to the 2 OG. The 3/472 mtbr,
the 3/5 mtbr and the 107 OAG were at the second level of subordination to the 2
OG. The Chamber is satisfied, therefore, and finds that the Accused, as the
commander of the 2 OG, had de jure authority over the JNA forces involved in
the attack on Sr| and the shelling of Dubrovnik, including the Old Town.
(ii) Effective control
392. As discussed above, the indicators of effective control depend on the
specific circumstances of the case.1141 The Chamber turns now to consider
whether the evidence in the case establishes that the Accused had the power to
prevent the unlawful shelling of the Old Town of Dubrovnik on 6 December 1991,
and punish or initiate disciplinary or other adverse administrative proceedings
against the perpetrators.
1134 Captain Pepi}, T 7473-7474; Admiral Joki}, T 4398. 1135 Captain Pepi}, T 7474-7475. 1136
Captain Pepi}, T 7474. 1137 Captain Drljan, T 7685. Captain Drljan referred to an order
that he received on 27 September 1991 from Captain
Krsti} or Krsto Djurovi}, the sector commander, to pull out three patrol boats from Pula, T 7685.
See also Exhibit D105, an order issued by Admiral Joki}, the commander of the 9 VPS on the
basis of orders from the VPO.
1138 Milovan Zorc, T 6661-6663. 1139 Exhibit P199, an order dated 20 September 1991 from the
command of the VPO which does not include the 9 VPS
as a unit operationally subordinated to the VPO and does not issue any assignments to the 9
VPS. See also
Exhibit P204, pp 19-20. 1140 See infra, para 404. 1141 Bla{ki} Appeals Judgement, para 69.
Case No IT-01-42-T
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a. Did the Accused have the material ability to prevent the attack on the Old
Town of 6 December 1991?
393. At the outset the Chamber notes that while the 2 OG was a newly
established unit, it had the
fundamental organisational structure to enable it to control combat operations. 1142
It received
regular combat reports from the units directly subordinated to it, the 9 VPS, the
2nd Corps and the
37th Corps, which were compiled on the basis of reports from their subordinate
units down to the
level of battalion.1143 All principles of command and control for the armed forces
applied to the 2 OG.1144
394. The command of the 2 OG conducted combat activities through the corps,
VPS and the brigade commands.1145 Commanders of units directly subordinated
to the 2 OG issued orders to their subordinate units pursuant to orders from the
command of the 2 OG.1146 Admiral Joki}, the commander of the 9 VPS, received
orders from the command of the 2 OG1147 and issued orders to his subordinate
units, including the 3/472 mtbr, 3/5 mtbr and the 107 OAG, in accordance with
these orders.1148
395. As the commander of the 2 OG, the Accused had the authority to give direct
combat orders not only to the units under his immediate or first level command,
but also to units under his command at a second or further lower level. 1149 By
way of actual examples, an order of the command of the 2 OG of 24 October
1991 bearing the Accused’s name, gave tactical instructions for conduct of
combat operations to the units of the 2 OG, including the 9 VPS and the 472
mtbr.1150 An order dated 23 October 1991 signed on behalf of the Accused
assigned specific tasks to the 9 VPS and the 472 mtbr. By the same order, direct
combat tasks were given to the 3/472 mtbr.1151 These included an order to move
the unit to a specific position.
396. The authority of the Accused to give direct combat orders included, of
course, authority to order a unit to ceasefire and to prohibit explicitly attacks on
particular targets. Examples are an order from the command of the 2 OG issued
on 24 October 1991 under the name of the Accused to
1142 Admiral Joki}, T 3829-3830. 1143 Admiral Joki}, T 3907-3909; 4519-4522; Exhibit P45;
Exhibit P204, p 22. 1144 Milovan Zorc, T 6433. 1145 Exhibit P204, pp 22-23. 1146 Exhibit
P204, pp 22-23; See also for example, Exhibit P122. 1147 Admiral Joki}, T 3856-3858. Admiral
Joki} testified that the operation referred to in Exhibit P126 was ordered by
the command of the 2 OG, T 3992-3994. 1148 Admiral Joki}, T 3856-3858; 3992-3995; 4329.
The command of the 2 OG was informed of the orders issued by
the command of the 9 VPS to its subordinate units. See for example, Exhibit P126; Exhibit P128.
1149 Milovan Zorc, T 6594; Exhibit P204, pp 22-23. 1150 Exhibit P119; Admiral Joki}, T 3958-
3959. 1151 Exhibit P121; Lieutenant Lemal, T 7399-7402. Lieutenant Lemal confirmed that this
order assigned specific tasks
to his battalion, T 7399-7401.
Case No IT-01-42-T
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the commands of the 2nd Corps, 37th Corps, 9 VPS, and 472 mtbr which “strictly”
prohibited attacks on Dubrovnik.1152 Another order from the command of the 2
OG to the 9 VPS signed by the Accused and dated 18 November 1991 contained
an explicit order not to open fire on the Old Town of Dubrovnik and to retreat to
cover units exposed to enemy fire.1153
397. The Accused had the power to order re-subordination of units within the
structure of the 2 OG. The changes in the command structure of the 2 OG
between 7 October and 6 December 1991 were effected by orders of the
command of the 2 OG on proposals from subordinate units. 1154
398. The nature and extent of the Accused’s material ability to prevent an attack
on Dubrovnik by the JNA forces deployed in the region is further illustrated by his
authority to represent the JNA in the negotiations with the ECMM and the Crisis
Staff of Dubrovnik. Adrien Stringer testified that after the Accused assumed
command of the 2 OG, it was solely the Accused as overall commander who
made decisions in relations to ECMM requests.1155 The Accused had the
authority to sign on behalf of the JNA a proposal for normalisation of life in
Dubrovnik addressed to the ECMM and the Crisis Staff of Dubrovnik, which
included an undertaking by the JNA to guarantee an absolute ceasefire of all its
units, and an undertaking to guarantee the security of the citizens and the
cultural monuments of Dubrovnik.1156 ECMM communications regarding location
of the JNA lines or breaches of ceasefire were addressed to the Accused. 1157
399. Some Defence witnesses, who in the autumn of 1991 served as company
commanders of units subordinated to the 3/472 mtbr, testified that they received
orders only from their superior commander, Captain Kova~evi} and that they
knew that Captain Kova~evi}’s superior commander was the commander of the 9
VPS, Admiral Joki}. At their level they appear not to have been aware of any role
of the 2 OG.1158 This evidence is not surprising, especially as the 2 OG was a
newly formed temporary structure. As discussed above, the 2 OG generally
conducted combat operations via corps, VPS and brigade commands. 1159
According to the JNA principle of singleness of command, the command of
a corps was the superior competent to issue orders to the corps. While
1152 Exhibit P119, para 3, and last sentence; Admiral Joki}, T 3932-3993. 1153 Exhibit D47;
see also Admiral Joki}, T 4551-4554. 1154 Admiral Joki}, T 3848. The order for re-subordination
of the 472 mtbr was issued pursuant to a decision of the
command of the 2 OG (Exhibit P101). See also Exhibit D43. 1155 Adrien Stringer, T 447. 1156
Exhibit P22, point 7; Lars Brolund, T 855. See also, Admiral Joki}, T 3971-3974. 1157
Per Hvalkof, T 2134; Exhibit P61, tab 8. The ECMM protested the shelling of Dubrovnik of
9 November 1991
and the restriction of the EC monitors’ freedom of movement by a letter addressed to the
Accused. (Per Hvalkof, T. 2141-2142; Exhibit P61, tab 10) Further, during the shelling of 9-14
November 1991, the ECMM addressed the Accused with a request to stop the shelling. (Per
Hvalkof, T 2168, Exhibit P61, tab 17; see also Per Hvalkof; T 2139, Exhibit P61, tab 9).
1158 Lieutenant Lemal, T 7402-7403; Lieutenant-Colonel Stojanovi}, T 7834-7842. Lieutenant-
Colonel Jovanovi}, the commander of the 3/5 mtbr testified that while carrying out his tasks he did
not have any contact with the 2 OG, T 8077.
Case No IT-01-42-T
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the superior officer had the authority to issue orders to the second or further
lower level, this was not the usual practice.1160 In practice it is to be expected
that subordinates at the level of company commanders would receive orders
from their immediate commanders and may not be aware pursuant to what
authority these orders were issued. Therefore, this evidence is not inconsistent
with the principles applied in the JNA, as revealed in the evidence, and does not
have material relevance to the Accused’s effective control of all units of the 2
OG.
400. The Defence places reliance on the circumstance that the command of the
9 VPS submitted two reports directly to the General Staff of the SFRY without
informing the command of the 2 OG.1161 It relies on the “Report on damage in
old parts of Dubrovnik” signed by Admiral Joki} and addressed to the Deputy
Federal Secretary for National Defence, Admiral Stane Brovet 1162 and on the
“Action Report of 3/472 mtbr of 6 December 1991”, signed by Admiral Joki} and
addressed to the “First Administration” and General Simonovi} in particular. 1163
As has been noted elsewhere in this decision, when the very special
circumstances which led to these two reports are considered, their existence
does not evidence the normal command structure, or a break-down in the normal
structure or affect the relevant powers and duties of the Accused. 1164
401. The Defence also suggests that the frequent changes of the command of
the 2 OG and the re-subordination of its units was a factor detracting from the
effectiveness of the command system of the 2 OG. 1165 While frequent
changes of command could be a negative factor for the command and control
climate,1166 the evidence does not indicate that these changes had any significant
effect in practice on the effectiveness of the Accused’s command of, and
authority over, the 2 OG in the relevant period. Relevantly, 9 VPS acted pursuant
to orders and decisions from the command of the 2 OG and complied with
Accused’s orders.1167 The Chamber notes that, by a decree of the Yugoslav
Presidency of 28 November 1991, the Accused was promoted to the rank of
Lieutenant- General for inter alia successfully directing and commanding. 1168
This was an extraordinary promotion and is indicative of the Accused’s
ability to exercise effective control over the troops under his command.
1159 Exhibit P204, pp 22-23. 1160 Milovan Zorc, T 6594; Exhibit P204, pp 22-23. 1161
Defence Closing Brief, para 84 and following. 1162 Exhibit P61, tab 39. 1163 Exhibit D65. 1164
See supra, paras 171-173. 1165 Defence Closing Brief, paras 68-72. 1166 Milovan Zorc, T
6682. 1167 The order for re-subordination of the 472 mtbr was issued by the command of the 9
VPS pursuant to a decision
from the command of the 2 OG (Exhibit P101). The order issued on 24 October 1991 by the
command of the 9 VPS in order to improve the security was issued pursuant to an order from the
2 OG (Exhibit P122). See also Exhibit P109 and Exhibit P113.
1168 Exhibit P134; Exhibit P135; Admiral Joki}, T 4122-4124.
Case No IT-01-42-T
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402. As referred to above in the section on command structure, Defence
evidence suggests that in the period from October to December 1991, the 9 VPS,
which in peacetime was a regular component of the VPO, received and acted on
orders from the VPO. Therefore, the question arises whether in the time material
to this Indictment the VPO exercised effective control over the 9 VPS.
403. As established earlier,1169 in the period from October 1991 until well into
1992 the 9 VPS was part of the 2 OG. The VPO retained certain authority with
respect to areas such as organisation and establishment, troop replenishment,
personnel administration for senior officers, logistics supplies and others. 1170
By an order of 24 October 1991, the command of 2 OG directed the 9 VPS
to consider the need of strengthening of its battleships and accordingly to submit
a request for such ships in due course to the command of the VPO. 1171 Two
reports dealing with logistical matters were sent by the 9 VPS to the command of
both the 2 OG and the VPO on 4 and 5 December 1991. 1172 This evidence
suggests that in the period October to December 1991, the VPO had primarily an
administrative role with respect to the 9 VPS.
404. As discussed in the preceding sections, the 9 VPS received its combat
assignments from the command of the 2 OG. 1173 The VPO had no authority
to influence the combat actions of the 9 VPS.1174 Further, the command of the
2 OG retained responsibility for maintaining discipline, and for the promotion and
removal of officers.1175 The Chamber’s conclusion from this evidence is that at
the material time the VPO had no combat or operational authority over the 9 VPS
and did not exercise effective control over 9 VPS units. The limited authority of
the VPO in respect of 9 VPS is not shown to have diminished the effectiveness of
the Accused’s command of the 2 OG in respect of the events of, and relating to,
the attack on 6 December 1991.
405. The Chamber is satisfied that the Accused, as the commander of the 2 OG,
had the material ability to prevent the unlawful shelling of the Old Town on 6
December 1991 and to interrupt and stop that shelling at any time during which it
continued.
b. Did the Accused have the material ability to punish the perpetrators?
406. In addition to his authority over all units of the 2 OG in operational matters,
as the commander of the 2 OG the Accused’s authority included authority to
issue orders and instructions
1169 See supra, para 391. 1170 Exhibit P204, p 20; Milovan Zorc, T 6661-6664. 1171 Exhibit
P119. 1172 Exhibit D97; Exhibit D98. 1173 See Milovan Zorc, T 6661-6663. 1174 Milovan Zorc, T
6661-6664; see also Exhibit P204, p 20. 1175 See infra, paras 411-413; see also Milovan Zorc, T
6705.
Case No IT-01-42-T
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relating to discipline to the units of the 2 OG, including the 9 VPS. On 1
November 1991 the command of the 9 VPS issued an order governing life and
work of units in combat,1176 which among other measures, prohibited the
unauthorized movement of soldiers from units and positions and required the
commanders of subordinate units to ensure unconditional execution of orders
and responsible execution of duties. This order was given on the basis of explicit
orders from the 2 OG, following an incident that highlighted the need to improve
combat security.1177 The “Plan of Measures and Activities Aimed at Developing
and Maintaining Order, Discipline and Morale of Units in the Next Period” issued
by the command of the 9 VPS on 4 December 1991 was in line with orders
issued by the 2 OG and was intended to eliminate existing problems with
discipline.1178 By an order of 22 January 1992, issued as an addendum to an
order of the command of the 2 OG, the command of the 9 VPS further clarified
the procedure for gathering of war booty, the misappropriation of which was
considered a serious offence.1179 While this was issued after 6 December
1991, it provides an illustration of the working of the command structure in the 2
OG and the complementary relationship of the role of the 9 VPS in such matters,
a role which did not detract from the ultimate power and authority of the Accused
as commander of the 2 OG.
407. The Accused also had authority to seek an increase of the number of
military police. It is suggested in the evidence that the 2 OG did not have
sufficient military police. It is noted that subordinate officers put forward a request
for mobilization of additional military police to the Accused because he had the
authority to seek reinforcements.1180 Milovan Zorc testified to the rather obvious
proposition that if a commander of an OG needed a greater number of military
police, he should have requested them.1181
408. As the commander of the 2 OG, the Accused had authority to apply all
disciplinary measures prescribed by law.1182 If a criminal offence had been
committed, commanding officers of all levels of units had an obligation to ensure
that the information about the violation reached the prosecution authorities. If a
lower level commander had not complied with this obligation, the superior
commander leading the operation personally had the authority and the obligation
to check whether the military police had been informed of the violation, and
whether the military police had notified the prosecutor. 1183
1176 Exhibit P109. 1177 Admiral Joki}, T 3882-3884; Exhibit P109. 1178 Admiral Joki}, T
4514-4515; Exhibit P110. 1179 Exhibit P113; Admiral Joki}, T 3902-3904; T 4518-4519. 1180
Admiral Joki}, T 3904-3906. 1181 Milovan Zorc, T 6721-6722. 1182 Exhibit P204, p 26. 1183
Milovan Zorc, T 6510-6513. See also Exhibit P189, Regulations on the Application of
International Laws of War
in the Armed Forces of the SFRY, item 36.
Case No IT-01-42-T
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409. The Defence submits that at the material time the military courts in the
region were not functioning.1184 Indeed, the military court covering the area of
Dubrovnik, which in peacetime was located in Split, 1185 was relocated to the Bay
of Kotor in October 1991, and as a consequence, at least for a month was not
functioning.1186 The evidence does not suggest, however, that this was a
material issue in October 1991 or thereafter. The unavailability of a military court
did not exonerate a commander from his duty to ensure that information about an
offence was communicated to the judicial authorities. According to the rules and
practice of the JNA, if a military court was not available, the higher military court
and the military prosecution should determine the court to be seized with the
matter. If the higher court is also not available, the commander had the
responsibility to refer the information further up the chain of command to the
Federal Secretariat of National Defence. 1187 At the time material to this
Indictment, in addition to the military court in Split, there were military courts in
Ljubljana, Zagreb, Sarajevo, Belgrade, Ni{ and Skopje, 1188 so there was not a
complete breakdown in the military court system.
410. Indeed, there were cases of criminal proceedings initiated against soldiers
from the 2 OG. Veselin Simovi}, a reserve soldier of the 2 OG was indicted by the
Military Prosecutor of Sarajevo for murdering 7 Croat civilians in the village of
Kijev Do, Trebinje municipality.1189 There were about 68 indictments filed with
the military court in Tivat,1190 many of which dealt with looting and arson, and
about 150 criminal reports for robbery.1191 There were, however, no indictments
related to the shelling of the Old Town of Dubrovnik in October and November
1991, nor, as discussed elsewhere, to the shelling of 6December 1991, 1192 or to
other breaches of international humanitarian law.
411. According to the laws of the SFRY, in peacetime, the authority to appoint or
to recall battalion commanders was reserved for the highest level of command,
the Federal Secretary of National Defence.1193 However, during combat
operations the removal of an officer could be quickly effected through transfer
and appointment to other duties as a personnel change resulting
1184 Defence Final Brief, para 74. 1185 Milovan Zorc, T 6480; Admiral Joki}, T 4381. 1186
Admiral Joki}, T 4382-4384. 1187 Milovan Zorc, T 6480-6481. 1188 Admiral Joki}, T 4381. See
also Milovan Zorc, T 6479-6480. 1189 Exhibit P111; See also Admiral Joki}, T 3900. 1190 Admiral
Joki} testified that at the end of October and the beginning of November 1991, the military court of
Split
was temporarily located in Tivat, T 4381. 1191 Admiral Joki}, T 3900-3901. 1192 See infra, paras 436-
437. 1193 Exhibit P204, p 28.
Case No IT-01-42-T
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from “the needs of service.”1194 These measures were in the power and capacity
of the Accused as Commander of the 2 OG.
412. In addition, as the commander of the 2 OG, the Accused could also ensure
the replacement of a subordinate commander during combat operations by
recommending to the Federal Secretary of National Defence the removal of the
officer supported by an explanation for his recommendation. 1195
413. Similarly, as the commander of the 2 OG, the Accused had certain powers
with respect to promoting officers under his command. A proposal for a
promotion of an officer for successful performance of tasks, the so-called
extraordinary promotion, had to be submitted to the Federal Secretary of National
Defence through the chain of command, which, in the case of the promotion of
Captain Kova~evi} for example, which occurred 8 days after 6 December 1991,
would have required the Accused as commander of the 2 OG to approve and
then to submit his recommendation to the Federal Secretary. 1196 A regular
promotion, i.e. promotion for time served at certain rank, was decided by the
Federal Secretary, but in this case, the commander of the 2 OG had the power to
oppose it.1197
(iii) Conclusion
414. In view of the above the Chamber is satisfied that as the commander of the
2 OG the Accused had effective control over the perpetrators of the unlawful
attack on the Old Town of Dubrovnik of 6 December 1991. The Accused had the
legal authority and the material ability to issue orders to the 3/472 mtbr, and all
the other JNA forces involved in the attack on Sr| and the shelling of Dubrovnik,
including the Old Town, explicitly prohibiting an attack on the Old Town, as well
as to take other measures to ensure compliance with such orders and to secure
that the Old Town would not be attacked by shelling, or that an existing attack be
immediately terminated. Further, the Chamber is satisfied that following the
attack of 6 December 1991 the Accused had the legal authority and the material
ability to initiate an effective investigation and to initiate or take administrative
and disciplinary action against the officers responsible for the shelling of the Old
Town.
1194 1195 1196 1197
Exhibit P204, p 28. Exhibit P204, p 28; See also Admiral Joki}, T 3906. Milovan Zorc, T 6717;
Admiral Joki}, T 4119-4123. Milovan Zorc, T 6717.
Case No IT-01-42-T
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(b) Mental element: did the Accused know or have reason to know that his
subordinates were about to or had committed crimes?
415. The factual circumstances relevant to the mental element, as established by
the evidence in this case, have been reviewed in this decision. 1198 Against that
factual background Article 7(3) of the Statute gives rise to a significant issue.
This is whether, by virtue of the JNA artillery fire on Dubrovnik to be expected in
support of the attack the Accused ordered on Sr|, he knew or had reason to know
that in the course of the attack the JNA artillery would commit offences such as
the acts charged. By way of general analysis the Accused knew of the recent
shelling of the Old Town in October and November by his forces. 1199
Indeed, the forces in the attack on 6 December 1991 were among the
forces involved at the time of the November shelling, and the unit directly located
around Sr| on 6 December was 3/472 mtbr which, under its same commander,
had been identified as in a position to have participated in the November
shelling.1200 The October and November shelling occurred in association with
attacks in which the JNA was seeking to capture further territory in the vicinity of
Dubrovnik, including in November Sr|. 1201 The 3/472 mtbr, and the 3/5 mtbr
located to the immediate north of the 3/472 mtbr, were each equipped with
substantial artillery capacity on 6 December 1991, as they had been in
November.1202 Existing orders in December precluded shelling of the Old Town,
however that had also been the position with the October and November
shelling,1203 so that general orders had not proved effective as a means of
preventing his troops from shelling Dubrovnik, especially the Old Town. The
Accused well knew that no adverse action had been taken against anyone by
virtue of the previous acts of shelling the Old Town, so that there had been no
example of adverse disciplinary or other consequences shown to those who
breached the existing orders, or international law, on previous occasions. 1204
416. In the view of the Chamber, as discussed earlier in this decision, what was
known to the Accused when he ordered the attack on Sr| on 5 December 1991,
and at the time of the commencement of the attack on 6 December 1991, gave
the Accused reason to know that criminal
1198 See supra, paras 160; 167-169. 1199 In particular, there is evidence that the events in
October and November 1991 received broad media coverage. See
Exhibits P215, P216 and P19. On 9 November 1991, Per Hvalkof, the Deputy Head of the ECMM
Regional Centre in Split, sent two letters to the Accused, informing him that the ECMM monitors
in Dubrovnik had reported shelling in the Old Town, T 2143; see Exhibit P61, tab 10 and tab 11.
See also Exhibit P62, tab13, Exhibit P61, tab 14; Exhibit P61 tab 15; Per Hvalkof, T 2151-2152;
2154. Further, following the shelling of the Old Town in November 1991, Admiral Joki} conducted
an investigation and concluded that the 3/472 mtbr and possibly the artillery of the 472 mtbr were
in a position to shell the Old Town. Admiral Joki} spoke inter alia with the Accused requesting the
resignation of the above two officers, T 3996-3998.
1200 Captain Ne{i}, T 8154-8155; Exhibit P118. 1201 See Exhibits P121 and D57 regarding
operations conducted in October and November 1991 respectively. 1202 Paul Davies, T 589;
594-595; 607. 1203 See, with respect to the October events, Exhibits P116 and P119; Admiral
Joki}, T 3921-3923. See, with respect to
the November events, Exhibit P118. 1204 Admiral Joki}, T 3998-3999.
Case No IT-01-42-T
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acts such as those charged might be committed by his forces in the execution of
his order to attack Sr|.1205 Relevantly, however, the issue posed by Article 7(3) of
the Statute is whether the Accused then had reason to know that offences were
about to be committed by his forces. The language at first glance, could suggest
a definite expectation that an offence will be committed. As the jurisprudence has
helped to demonstrate, the operation intended by the provision is, relevantly, that
an accused must be shown to have “reason to know” by virtue of information he
possesses. This information must be such as at least to put him on notice of the
risk of such offences so as to indicate the need for additional information or
investigation to ascertain whether such offences were about to be committed. In
other words an accused cannot avoid the intended reach of the provision by
doing nothing, on the basis that what he knows does not make it entirely certain
that his forces were actually about to commit offences, when the information he
possesses gives rise to a clear prospect that his forces were about to commit an
offence. In such circumstances the accused must at least investigate, i.e. take
steps inter alia to determine whether in truth offences are about to be committed,
or indeed by that stage have been committed or are being committed.
417. In the Chamber’s assessment of what was known to the Accused at or
before the commencement of the attack on Sr|, there has been shown to be a
real and obvious prospect, a clear possibility, that in the heat and emotion of the
attack on Sr|, the artillery under his command might well get out of hand once
again and commit offences of the type charged. It has not been established,
however, that the Accused had reason to know that this would occur. This is not
shown to be a case, for example, where the Accused had information that before
the attack his forces planned or intended to shell the Old Town unlawfully, or the
like. It is not apparent that additional investigation before the attack could have
put the Accused in any better position. Hence, the factual circumstances known
to the Accused at the time are such that the issue of “reason to know” calls for a
finely balanced assessment by the Chamber. In the final analysis, and giving due
weight to the standard of proof required, the Chamber is not persuaded that it
has been established that the Accused had reasonable grounds to suspect,
before the attack on Sr|, that his forces were about to commit offences such as
those charged. Rather, he knew only of a risk of them getting out of hand and
offending in this way, a risk that was not slight or remote, but nevertheless, in the
Chamber’s assessment, is not shown to have been so strong as to give rise, in
the circumstances, to knowledge that his forces were about to commit an
offence, as that notion is understood in the jurisprudence. It has not been
established, therefore, that, before the commencement of the attack on Sr|, the
Accused knew or had reason to know that during the attack his forces would
shell the Old Town in a manner constituting an offence.
1205 See supra, para 347. Case No IT-01-42-T
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418. That being so, the Chamber will therefore consider whether, in the course of
the attack on Sr| on 6 December 1991, what was known to the Accused changed
so as to attract the operation of Article 7(3). In the very early stages of the attack,
well before the attacking JNA infantry had actually reached the Sr| feature and
the fort, at a time around 0700 hours as the Chamber has found, the Accused
was informed by the Federal Secretary of National Defence General Kadijevi} of
a protest by the ECMM against the shelling of Dubrovnik. 1206 For reasons
given earlier, the order of the Accused to attack Sr| necessarily involved
knowledge by him that JNA artillery might need to act against Croatian defensive
positions in Dubrovnik which were threatening the lives of the attacking soldiers
and the success of the attack on Sr|.1207 His knowledge, in the Chamber’s
finding, was that only a limited number of such Croatian defensive positions
could exist and that, as the attack progressed, these positions could be subjected
to controlled and limited JNA shelling targeted on these positions, or on what
were believed by his forces to be such positions.1208 While a protest such as had
been made to General Kadijevi} could perhaps have arisen from shelling targeted
at such Croatian defensive positions, the description that Dubrovnik was being
shelled, the extremely early stage in the attack of the protest (before sunrise), 1209
and the circumstance that the seriousness of the situation had been thought by
the ECMM to warrant a protest in Belgrade at effectively the highest level, would
have put the Accused on notice, in the Chamber’s finding, at the least that
shelling of Dubrovnik beyond what he had anticipated at that stage by virtue of
his order to attack Sr|, was then occurring. This knowledge was of a nature, in
the Chamber’s view, that, when taken together with his earlier knowledge, he
was on notice of the clear and strong risk that already his artillery was repeating
its previous conduct and committing offences such as those charged. In the
Chamber’s assessment the risk that this was occurring was so real, and the
implications were so serious, that the events concerning General Kadijevi} ought
to have sounded alarm bells to the Accused, such that at the least he saw the
urgent need for reliable additional information, i.e. for investigation, to better
assess the situation to determine whether the JNA artillery were in fact shelling
Dubrovnik, especially the Old Town, and doing so without justification, i.e. so as
to constitute criminal conduct.
419. As the Chamber has found earlier in this decision, already by about 0700
hours, there had been shelling of Dubrovnik by the Accused’s forces, 1210 and, at
least in respect of the Old Town, shelling that was not targeted at Croatian
defensive positions or believed positions.1211 Unlawful
1206 See supra, para 160. 1207 See supra, para 343 1208 See supra, para 342. 1209 The
beginning of civil twilight on 6 December 1991 was 0631 hours and sunrise was at 0703 hours, T
8522. 1210 See supra, paras 100-101.
1211 See supra, paras 193-194. Case No IT-01-42-T
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shelling was occurring. By that time his attacking infantry had not reached Sr|,
which was still being subjected to heavy JNA artillery shelling. 1212
(c) Measures to prevent and to punish (i) Measures to prevent
420. For reasons given in this decision, there was, in the Accused’s knowledge
at the time of his decision to order the attack on Srđ and when the attack
commenced, a real risk that in the heat of the attack the JNA artillery would once
again repeat its then recent and already repeated conduct of unlawful shelling of
Dubrovnik, in particular of the Old Town. 1213 It has not been established,
however, that there was a substantial likelihood of the artillery doing this,
although that finding by the Chamber involved a difficult and somewhat finely
balanced evaluation. That being so, however, the known risk was sufficiently real
and the consequences of further undisciplined and illegal shelling were so
potentially serious, that a cautious commander may well have thought it desirable
to make it explicitly clear that the order to attack Srđ did not include authority to
the supporting artillery to shell, at the least, the Old Town. Depending on the
attitude of such a commander to the status of the Old Town, any such explicit
clarification may have been qualified, for example, by words such as “except in
the case of lethal fire from the Old Town”, words which reflect the terms of one of
the earlier orders. In the present case, however, for reasons already given, the
Chamber is not persuaded that a failure to make any such clarification before the
attack commenced gives rise to criminal liability of the Accused, pursuant to
Article 7(3) of the Statute, for what followed. Any such clarification would have
been merely by way of wise precaution. It remains relevant, however, when
evaluating the events that followed, that no such precaution was taken.
421. There were of course existing orders. As described elsewhere in this
decision, in some cases, their effect was to preclude shelling of Dubrovnik,
others forbade the shelling of the Old Town itself. 1214 At least one order was
qualified to allow for fire in return to lethal Croatian fire. 1215 The existence of such
orders had not been effective to prevent the previous shellings. Further, no action
had been taken to deal with those who were responsible for the previous
breaches of existing orders.1216 In these circumstances, in the Chamber’s finding,
the mere existence of such orders
1212 See supra, paras 122-123. 1213 See supra, paras 347; 417. 1214 Exhibits P118, P119, P116,
D47. See also supra, para 61. 1215 Exhibit P118, item 6. 1216 Admiral Joki} gave evidence that
he conducted an investigation into the shelling of the Old Town in
November 1991, which led him to conclude that the 3/472 mtbr, under the command of Captain
Kova~evi}, and possibly the artillery of the 472 mtbr, had been at the time in a position to shell the
Old Town of Dubrovnik, T 3996-3998. Admiral Joki} testified that he then expressly requested the
removal of both the commander and the
Case No IT-01-42-T
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could not on 6 December 1991 be seen to be effective to prevent repetition of the
past shelling of Dubrovnik, and especially the Old Town. In the Chamber’s view,
however, there is a relevant distinction between such existing orders which, with
apparent impunity, had not been faithfully observed by the forces to whom they
were given, and a further clear and specific order to the same effect, if given at
the time of, and specifically for the purposes of, a fresh new attack. A new
express order prohibiting the shelling of the Old Town (had that been intended by
the Accused) given at the time of his order to attack Srđ, would both have served
to remind his forces of the existing prohibition, and to reinforce it. Further, and
importantly, it would have made it clear to those planning and commanding the
attack, and those leading the various units (had it been intended by the Accused)
that the order to attack Srđ was not an order which authorised shelling of the Old
Town. In the absence of such an order there was a very clear prospect that those
planning, commanding and leading the attack would understand the new and
specific order to attack Srđ as implying at least that shelling necessary to support
the attack on Srđ was authorised, notwithstanding existing orders. The events of
6 December 1991 demonstrate, in the view of the Chamber, that this prospect
was realised. There is nothing to support the view that the Accused took any
measures to guard against this. Indeed, as the Chamber has found, the intended
implication of the Accused’s order to attack Srđ was that shelling, even of the Old
Town, which was necessary to support the attacking infantry on Srđ, could
occur.1217 As has been made clear in this decision, however, in the Chamber’s
finding what did occur on 6 December was deliberate, prolonged and
indiscriminate shelling of the Old Town, shelling quite outside the scope of
anything impliedly ordered by the Accused. 1218 It remains relevant, however, that
nothing had been done by the Accused before the attack on Srđ commenced to
ensure that those planning, commanding and leading the attack, and especially
those commanding and leading the supporting artillery, were reminded of the
restraints on the shelling of the Old Town, or to reinforce existing prohibition
orders.
422. Hence, when the Accused was informed by General Kadijevi} around 0700
hours of the ECMM protest, that put the Accused directly on notice of the clear
likelihood that his artillery was then already repeating its earlier illegal shelling of
the Old Town.1219 The extent of the Accused’s
chief of staff of the 472 mtbr before the Accused’s chief of staff, Admiral Kandi} and the Accused.
His request was not approved, T 3999. There is nothing in the evidence to suggest that the
shelling of the Old Town in November 1991 and the consequent damage was ever investigated
by the command of the 2 OG, and that disciplinary action of any type was taken against those
responsible. Admiral Joki}, T 3999; Captain Pe{i}, T 7920- 7922; Lieutenant-Colonel \urasi}, T
7004; Colonel Jovanovi}, T 7042-7043.
1217 See supra, paras 347; 417. 1218 See supra, para 345. 1219 See supra, para 418.
Case No IT-01-42-T
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existing knowledge of the October and November shelling of the Old Town, 1220 of
the disciplinary problems of the 3/472 mtbr1221 and of its apparent role, at least as
revealed by Admiral Joki}’s November investigation, in the November shelling of
Dubrovnik, especially the Old Town,1222 and of his failure to clarify the intention
of his order to attack Srđ in regard to the shelling of Dubrovnik or the Old Town
are each very relevant. In combination they give rise, in the Chamber’s finding to
a strong need to make very expressly clear, by an immediate and direct order to
those commanding and leading the attacking forces, especially the artillery, the
special status of the Old Town and the existing prohibitions on shelling it, and of
the limitations or prohibition, if any, on shelling the Old Town intended by the
Accused on 6 December 1991. This should have been starkly obvious. The
evidence contains no suggestion whatever that any such order was issued by the
Accused, or anyone else that day, save evidence of Admiral Joki} of an order to
him around 0700 hours which is considered shortly.
423. There was also the obvious immediate need to learn reliably what JNA
shelling was in truth occurring, and why. The means existed for ready direct
communication between the commander of the attacking forces, Captain
Kova~evi} at @arkovica, and the Accused and his staff at Trebinje. Were the
Accused concerned to know whether his forces were attacking Dubrovnik, or the
Old Town, he could have received an immediate report from @arkovica. Of
course, the objective circumstances suggest that the Accused, at least through
his staff, would have been regularly advised by telephone or radio of the
progress of the attack.1223 It was an attack of considerable political sensitivity
given the location and timing. The Accused had ordered the attack himself. It is
quite improbable that he did not receive reports. While this could have occurred
through the
1220 In particular, there is evidence that the events in October and November 1991 received
broad media coverage. See Exhibits P215, P216 and P19. On 9 November 1991, Per Hvalkof,
the Deputy Head of the ECMM Regional Centre in Split, sent two letters to the Accused,
informing him that the ECMM monitors in Dubrovnik had reported shelling in the Old Town, T
2143; see Exhibit P61, tab 10 and tab 11. See also Exhibit P62, tab13, Exhibit P61, tab 14;
Exhibit P61 tab 15; Per Hvalkof, T 2151-2152; 2154.
1221 The Chamber heard evidence that in the period October to December 1991 there were
problems with discipline in the units of the 2 OG, in particular, incidents of unauthorised opening
of fire, refusal to carry out orders, looting, arson and drinking. An order signed by the Chief of
Staff of the 9 VPS Warship-Captain Zec on 8 October 1991 referred to incidents of impermissible
conduct of soldiers including “wanton arson and destruction of facilities, plundering, violent
behaviour, drunkenness and refusal to carry out orders.” (Exhibit P105; See also Admiral Joki}, T
3873-3875) Another order, issued by Admiral Joki} on 31 October 1991 required all units
subordinated to the 9 VPS to take specific measures to improve discipline. (Exhibit P107, Admiral
Joki}, T 3877-3880; T 4512- 4513) The reasons for the issuance of this order, as indicated in the
order itself, were the observations by organs of the 9 VPS that “orders were not getting through to
those ultimately carrying them out” and that there were “unlawful acts, wilfulness [sic], abuse and
failure to follow and carry out orders” (Exhibit P107, p 1). See also Exhibit P108.
1222 Admiral Joki} gave evidence that he conducted an investigation into the shelling of the Old
Town in November 1991, which led him to conclude that the 3/472 mtbr, under the command of
Captain Kova~evi}, and possibly the artillery of the 472 mtbr, had been at the time in a position to
shell the Old Town of Dubrovnik, T 3996-3998. Admiral Joki} testified that he then expressly
requested the removal of both the commander and the chief of staff of the 472 mtbr before the
Accused’s chief of staff, Admiral Kandi} and the Accused. His request was not approved, T 3999.
1223 See supra, para 393. Case No IT-01-42-T
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9 VPS command in accordance with normal structures, there could equally have
been direct reporting especially as the attack was made on the Accused’s order.
There are no JNA records in evidence of such reports but we do not have
complete records. It is apparent from his conversation with Colm Doyle that the
Accused was, at that stage of the day, informed of the events at Dubrovnik and
apparently preoccupied by then.1224 Were it the case, however, that before 0700
hours the Accused did not know, and considered it necessary to know, what JNA
shelling was in truth occurring at Dubrovnik, and for what reason, he had at that
time and thereafter during the day the ready and immediate means to obtain a
direct report from the commander of the attack at @arkovica. Equally he,
personally or by his staff, had the ready and immediate means to obtain a report
from Admiral Joki} or the 9 VPS command post. 1225 This was the position
throughout the day save, of course, that Admiral Joki} travelled with him to
Belgrade in the afternoon. As the Chamber has found the Accused did telephone
Admiral Joki} after he heard that Dubrovnik was being shelled. 1226 It was the
effect of the Admiral’s evidence that he knew nothing of shelling of Dubrovnik but
he did report to the Accused that Captain Kova~evi} was about to attack Srđ. 1227
That last report was correct as Kova~evi}’s troops were moving. They did not
reach Srđ until about 0800 hours.1228 The Chamber has reservations, however,
as discussed elsewhere, about the Admiral’s evidence about parts of his
conversation with the Accused.1229 On the Admiral’s account, if it were true, the
Admiral was not able to give the Accused any information about shelling of
Dubrovnik, or why any such shelling was occurring. Had that been the case, as
has been indicated, the Accused had the ready means to obtain a first hand
report directly from @arkovica, were the Accused in truth concerned to learn the
position. Further, had the Accused felt the need for more reliable information at
any time during the day, Trebinje was close enough to @arkovica and Kupari, for
one of the Accused’s own staff conveniently and quickly to travel by road and to
be able to report directly to the Accused.
424. Just as the Accused had the ready and immediate means to be informed of
the circumstances in Dubrovnik, and the Old Town, regarding JNA shelling, and
to readily send his own staff to further investigate and report, he also had the
ready and immediate means throughout 6 December 1991 to communicate
orders to the commander of the attacking forces, Captain Kova~evi}, and to the
other senior 9 VPS officers at @arkovica, including Warship-Captain Zec. Any
orders he considered necessary could be readily communicated directly to
@arkovica, or
1224 Colm Doyle, T 1714-1716. 1225 The means of communications were working. Admiral Joki},
T 4681-4684; Colonel Kurdulija, T 7864-7866;
7870; Frigate-Captain Handìjev, T 7641; 7648-7649; 7676. 1226 See supra, para 160. 1227 Admiral
Joki}, T 4046-4047. 1228 See supra, paras 122-123. 1229 See supra, paras 152-154.
Case No IT-01-42-T
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communicated through the Command of the 9 VPS. Had the Accused been
concerned that an order he made had not been communicated to @arkovica, or
that for whatever reason an order he had made was not being complied with, one
of his own staff could conveniently and quickly have travelled to @arkovica to
deal with the situation. Admiral Joki} could have gone to @arkovica even more
quickly, at least during the morning, had the Accused ordered him to personally
assess and take charge of the situation.1230 Neither Admiral Joki} nor any
Staff officer from the Accused’s 2 OG at Trebinje was at @arkovica at any time
that day.
425. While the Chamber has reservations about some aspects of the evidence of
Admiral Joki} as to the content of the conversation he had with the Accused at
about 0700 hours, reservations because the effect of the Admiral’s evidence is
that at that time he had no knowledge of the order of the Accused to attack Srđ
that morning and, as a consequence, he could not immediately accept that
Dubrovnik was being shelled,1231 it is the evidence of the Admiral that the
Accused ordered him to stop the attack.1232 If that were the case, it would be
most material to the present issue. The Chamber understood the evidence of the
Admiral to be that he was ordered by the Accused to stop the attack on Srđ. If
there was in truth such an order, given by the Accused, which is not the finding of
the Chamber, neither the attack on Srđ nor the shelling of Dubrovnik were
stopped. What Admiral Joki} in fact did, following the conversation, is also of
significance to the question of what orders were given. He did persistently
prevent the heavy howitzer battery at îlipi from firing that day despite ongoing
requests from Captain Kova~evi} at @arkovica.1233 In this respect the Chamber
accepts that for whatever reason Admiral Joki} decided that the shelling of
Dubrovnik should not be further aggravated by allowing the heavy howitzers to
file that day. No effective steps were taken, however, by Admiral Joki} to stop the
many JNA mortars from shelling Dubrovnik, especially the Old Town. Whether
this action to stop the howitzers was a decision of Admiral Joki} acting alone, or
on an order of the Accused, or a joint decision of the Accused and Admiral Joki}
made during their telephone conversation, and whether it was because of the
news of General Kadijevi}’s anger and concern about the shelling of Dubrovnik,
are matters which cannot be resolved on the evidence. Further, according to
what other evidence there is, Admiral Joki} ordered his Chief of Staff, Warship-
Captain Zec, and at least one other senior 9 VPS army Staff officer to go to
@arkovica.1234 There is also evidence that, in turn, Warship-Captain Zec ordered
a junior Staff officer to deliver a message to Captain Kova~evi} at @arkovica not
to shell the Old
1230 Milovan Zorc, T 6642-6644. 1231 See supra, para 153. 1232 Admiral Joki}, T 4052. 1233 Admiral
Joki}, T 4052-4053. See also Captain Pepić, T 7484-7485; T 7491; T 7582-7583, and Captain
Ne{ić,
T 8182-8183. 1234 Admiral Joki}, T 4052.
Case No IT-01-42-T
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Town.1235 This was neither an order to stop the attack on Sr|, nor an order to
stop shelling Dubrovnik. If such an order was delivered, which is not the finding
of the Chamber, it was not acted on by Captain Kova~evi}.
426. Warship-Captain Zec did go to @arkovica himself a little later, around 0800
hours, and remained throughout the day until after 1500 hours. 1236 He did not
stop the attack on Srđ, or the shelling of Dubrovnik, or the shelling of the Old
Town. From @arkovica he had first hand knowledge and full vision of what was
in truth occurring, both at Sr| and the shelling of Dubrovnik, especially the Old
Town. Warship-Captain Zec as Chief of Staff of the 9 VPS had full capacity to
give and enforce orders to stop the attack on Sr|, and the shelling of Dubrovnik
and the shelling of the Old Town. Instead he actively supported the ongoing
attack on Srđ into the afternoon, including arranging for further specialised
explosives for use by the attacking infantry against the fortress of Srđ, explosives
that arrived too late to be used as the attacking troops were by then
withdrawing.1237 In the Chamber’s finding it is simply not believable that Warship-
Captain Zec would take these serious measures without the authority of his
superiors, or contrary to their orders. He was a senior career naval officer in a
highly structured armed force. To have acted without authority, or contrary to
orders, in these circumstances to allow the continuation of the shelling of the Old
Town, or of Dubrovnik, or the attack on Sr| would be the end of his career. It is
not suggested that any disciplinary or other adverse action has been taken
against him by either Admiral Joki} or the Accused. While there is the possibility,
as suggested by the evidence of Admiral Joki}, that the order of the Accused to
attack Srđ was kept from the Admiral,1238 that possibility would admit only of the
prospect that Warship-Captain Zec acted throughout the 6 December 1991
directly on the orders of the Accused. That does not appear to be a very likely
situation, given that Warship-Captain Zec was a naval officer and Chief of Staff to
Admiral Joki}, and was merely subject to the temporary command of the
Accused, who was an army officer.
427. The only explanation in the evidence for the attack on Sr| not ceasing,
following what is said to be the Accused’s order to Admiral Joki} around 0700
hours, is the suggestion that the order was too late for it to be possible to stop
the attack as the troops were already exposed to fire as they approached Sr|. 1239
This does not bear examination. While the troops approaching Sr| were
exposed to fire, that situation could only worsen as they got closer to Sr|. In the
finding of the Chamber it is apparent that the attacking troops on Srđ could have
been withdrawn at any stage of
1235 Captain Drljan, T 7701. 1236 Captain Pepi}, T 7483-7484; Admiral Joki}, T 4101. See
also supra, para 126. 1237 Colonel Jovanovi}, T 7026-7029. 1238 On the Admiral’s evidence, on the
eve of 6 December 1991 Captain Kova~evi} reported to the command post of
2 OG instead of the command post of 9 VPS to which he was directly subordinated, T 4132. 1239
Exhibit D96, p 67, entry at 0740 hours, 6 December 1991; Exhibit D62.
Case No IT-01-42-T
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the day, especially at around 0700 hours, with less risk to them than in pursuing
the attack. Instead they pressed home the attack until after 1400 hours. 1240 This
conduct provides telling and compelling evidence of the true state of the orders
given by the Accused in respect of the attack on Srđ. In the Chamber’s finding
there was no order at around 0700 hours to stop the attack on Srđ. Nor was
there an order to stop the shelling of Dubrovnik, or the Old Town. Further, as
found earlier in this decision, there was no order for the infantry attacking Sr| to
cease fire with effect from 1115 hours or at any other time in the day, until they
were permitted to withdraw after 1400 hours. The attack against Sr| was pursued
with determination until after 1400 hours.
428. As the Chamber has found earlier in this decision, the Accused did order
what was called a ceasefire to take effect at 1115 hours. 1241 This was
pursuant to negotiations between Admiral Joki} and Minister Rudolf earlier in the
morning. It appears not to have been a written order. It is not revealed in the
evidence how it was given to JNA units. The clear inference is that it was
transmitted by radio or telephone. What is most significant, however, is that the
order was not given to all units. The commander of the 3/5 mtbr received no
order to cease fire at 1115 hours.1242 In fact he was concerned to know whether
there was an order to cease fire at 1200 hours, as he had heard Warship-Captain
Zec indicate this the night before, when Warship-Captain Zec had said the attack
on Srđ had to be concluded by 1200 hours. Therefore the commander of the 3/5
mtbr sought confirmation from the command of the 9 VPS shortly before 1200
hours whether his mortars should cease fire. They had not stopped firing at 1115
hours. The Old Town was out of range of those mortars, but they were firing at
the northwestern suburbs of Dubrovnik. The fall off in JNA artillery fire in
Dubrovnik at about 1115 hours1243 indicates that an order to cease fire did reach
at least some other operative JNA mortar batteries. The evidence of those
leading the infantry units actually trying to capture Srđ is clear, however, in the
finding of the Tribunal, that there was no order for them to cease fire at 1115
hours.1244 Instead their attack on Srđ was pursued until after 1400 hours and, in
what was clearly a fresh effort to deal with the Croatian defenders underground
in the fort at Srđ, on the order of Warship Captain Zec, special explosives were
obtained late in the
1240 See supra, paras 140-141; 144. 1241 See supra, paras 156-157. 1242 Lieutenant-Colonel
Jovanovi}, T 8093. 1243 See supra, para 107. 1244 Lieutenant Lemal, the commander of the 2nd
company of the 3/472 mtbr was not aware of any order to cease fire
on 6 December, T 7415-7416. He stated in evidence that the only order he received was that of
Captain Kova~evi}, sometime in the afternoon of 6 December, to withdraw the unit to its starting
position at Strin~ijera, T 7375-7376. On 6 December 1991, Lieutenant-Colonel Stojanovi}, the
commander of the 3rd company of the 3/472 mtbr, testified that he did not receive any order to
stop the attack on Sr| by his company, T 7833. Lieutenant Pe{i}, the platoon commander of the 3 rd
company of the 3/472 mtbr stationed at Bosanka, testified that he did not receive any order on 6
December 1991 to suspend the attack on Sr| or to return to this position, T 7902- 7903. In fact,
the evidence shows that it is only hours later, starting at around 1400 hours, that the JNA units
started to withdraw from Sr|. See Captain Ne{i}, T 8185; Captain Drljan, T 7718 ; See also
Exhibits D65 and D96; See supra, para. 139.
Case No IT-01-42-T
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attack for use by the attacking infantry.1245 These were being delivered to
@arkovica sometime between 1400 and 1500 hours when the vehicle was
stopped on the road with the news that the explosives were no longer
required.1246 The retreat had been decided on.
429. While all possible circumstances have not been explored in the evidence,
two factors stand out as ensuring that the so called ceasefire order for 1115
hours ordered by the Accused was not effective. In the Chamber’s finding, first,
the failure of the Accused to order the cessation of the attack on Srđ at the same
time as the ceasefire order was given to most JNA artillery units, had what was a
virtually inevitable consequence in the circumstances. As the JNA infantry attack
on Srđ was still being maintained, the Croatian defensive artillery in Dubrovnik
had need to continue their support of the desperately situated Croatian defenders
on Srđ. Without Croatian mortar fire on the attacking JNA forces surrounding the
fort, it seems inevitable that Srđ would have fallen to the JNA. The Chamber
would note that, to the Croatian forces, the continued attack on Srđ no doubt
appeared in itself to be a breach of the ceasefire by the JNA. The effect of the
continued Croatian artillery firing on the attacking JNA troops at Srđ, inevitably,
was that the JNA artillery continued to fire. What followed indicates that the JNA
artillery fire continued, not only at Croatian defensive positions in Dubrovnik, but
also in the indiscriminate manner that had been established during the morning.
It continued until after 1500 hours when the attacking forces on Srđ had finally
abandoned their attempt to capture Srđ and had retreated. 1247 To the extent that
the ongoing destruction of Dubrovnik, especially the Old Town, was no doubt
seen by some as a further means of encouraging capitulation by the Croatian
defenders on Srđ, the continuation of the indiscriminate JNA artillery attack had,
in the end, proved a failure. Secondly, the failure of the Accused to ensure that
his ceasefire order for 1115 hours reached all active JNA artillery led to the
continued firing by the 3/5 mtbr mortars on the northwestern parts of Dubrovnik.
This also constituted a serious breach of the ceasefire by the JNA. In the face of
this provocation, in such tense circumstances, continued Croatian artillery firing
was inevitable. That in turn, had the practical effect of ensuring the resumption of
full JNA artillery firing not long after 1115 hours.
430. The ongoing firing after 1115 hours continued until after 1500 hours, and
even later. The evidence discloses no further action to stop the JNA firing while
the infantry attack on Srđ continued. For much of the afternoon the Accused was
in Belgrade with Admiral Joki}. Rather than there being active measures to stop
the attack by those left in Command during his absence, a message, sent in his
name but perhaps in his absence by his command, to Dubrovnik in the early
afternoon purported to deny that there had been any shelling of the Old Town by
JNA artillery since
1245 1246 1247
Colonel Jovanovi}, T 7026-7028. Colonel Jovanovi}, T 7029. See supra, paras 110; 141.
Case No IT-01-42-T
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the 1115 hours ceasefire, and contended that any damage being suffered was
being caused by the Croatian forces.1248 This highly provocative communication
not only entirely misrepresented what was in truth occurring at that time, it
precludes any inference of there being efforts then underway to cease JNA
artillery firing, either on the orders of the Accused or by those left in command of
the 2 OG during his absence in Belgrade.
431. In the Chamber’s finding, even allowing for the possibility that the order of
the Accused to attack Sr| was kept from Admiral Joki}, having regard to all
circumstances established by the evidence, it has been established that
Warship-Captain Zec was acting pursuant to the Accused’s order to take Sr|
throughout the day, and this attack was only abandoned when it became
inevitable that the attack could not succeed. For whatever precise reason, the
JNA artillery shelling of Dubrovnik, including the Old Town, was continued in
association with that attack on Sr|, even though its nature had changed from that
contemplated by the Accused’s original order.
432. In fact the shelling of the Old Town and the wider Dubrovnik continued
despite the protest to General Kadijevi} in Belgrade and other protests from
Dubrovnik. The shelling intensified after about 0800 hours when the shelling of
Srđ by the JNA ceased because the JNA infantry had reached Srđ. 1249 It
continued until after 1500 hours, by which time the JNA infantry attacking Srđ
had completed their withdrawal, and thereafter intermittently until after 1630
hours.1250 At no time during the day had JNA shelling of the Old Town been
targeted at Croatian military defensive positions, or believed positions, in the Old
Town.1251 The shelling of the Old Town had been deliberate, widespread and
indiscriminate, as indeed had much of the shelling of the wider Dubrovnik. 1252
As has been indicated the evidence discloses that this was obvious to
anyone observing from @arkovica that day.
433. As considered elsewhere in these reasons, the Accused had the legal
authority and the material means to have stopped the shelling of the Old Town
throughout the ten and a half hours it continued, as he also had the means and
authority to stop the shelling of the wider Dubrovnik. 1253 No steps that may have
been taken by the Accused were effective to do so. While the forces responsible
for the shelling were under the immediate command of the 9 VPS, they were
under his superior command and were engaged in an offensive military operation
that day pursuant to the order of the Accused to capture Srđ.
1248 Exhibit P23. Minister Rudolf, T 5602-5604. 1249 See supra, paras 107; 123-124. 1250
See supra, paras 110 and 140. 1251 See supra, paras 193-194.
1252 See supra, para 214. 1253 See supra, para 414.
Case No IT-01-42-T
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434. While the finding of the Chamber is that the Accused did not order that the
attack on Sr| be stopped when he spoke to Admiral Joki} around 0700 hours on 6
December 1991, the Chamber would further observe that had he in truth given
that order, the effect of what followed is to demonstrate that the Accused failed
entirely to take reasonable measures within his material ability and legal authority
to ensure that his order was communicated to all JNA units active in the attack,
and to ensure that his order was complied with. This failure, alone, would have
been sufficient for the Accused to incur liability for the acts of his subordinates
pursuant to Article 7(3), even if he had ordered at about 0700 hours that the
attack on Sr| be stopped.
(ii) Measures to punish
435. As found earlier in this decision, in the afternoon of 6 December 1991 the
Accused and Admiral Joki} went to Belgrade to meet with General Kadijevi} and
report on the attack that morning.1254 The Accused was present throughout the
meeting.1255 In essence its outcome was that Admiral Joki} was given the task
of trying to repair the damage (to the JNA’s standing and to its relations with the
various international, Croatian government and Dubrovnik representatives)
caused by the shelling of Dubrovnik, especially the Old Town, that day, and to try
to “sort things out.”1256 This was a damage control exercise by the JNA as a
consequence of the adverse international reaction to the shelling. To this end
Admiral Joki} had proposed at the meeting in Belgrade that he should undertake
an enquiry into the shelling.1257 An investigation of some type was an obvious
step in deflecting adverse international opinion. As the forces involved in the JNA
attack were all under the immediate command of Admiral Joki} he had
appropriate investigative and disciplinary powers.
436. In the Chamber’s finding, what was in fact done following the Belgrade
meeting evidences the tenor and the effect of the understanding or instructions
Admiral Joki} took from the Belgrade meeting. For reasons given earlier in this
decision, the Chamber has found that the enquiry undertaken by Admiral Joki}
was a sham.1258 While assurances of a thorough investigation, and that the
perpetrators of the attack would be disciplined, were given to the international,
Croatian government and Dubrovnik representatives by Admiral Joki}, 1259 it
seems that only a few written
statements and reports were obtained in the day or two after 6 December
1991.1260
These
1254 See supra, paras 170-171. 1255 Admiral Joki}, T 4076-4079. See supra, para 171. 1256
See supra, paras 172-173. 1257 See supra, para 172. 1258 See supra, para 174. 1259 Minister
Rudolf, T 5612, Exhibit P61, tab 33; Per Hvalkof, T 2204, Exhibit P61, tab 35. 1260 Admiral Joki}
testified that he asked for written reports from the Battalion Commander, the Chief of Staff
Warship-Captain Zec, Lieutenant-Colonel Kova~evi} and Captain Kozari},T 4094-4095.
Lieutenant-Colonel Jovanovi} was also asked to submit a written report to the command of the 9
VPS at around 1400 hours on
Case No IT-01-42-T
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apparently supported the view, in essence, that the attack on Sr| was the
spontaneous reaction of Captain Kova~evi} of the 3/472 mtbr to provocations by
Croatian forces at Sr| during the night of 5/6 December 1991. He acted alone
and contrary to orders in carrying out the attack on Sr|. Further, while there had
been some shelling of Dubrovnik, this was in support of the attack on Sr| and
was apparently targeted at active Croatian military positions. The extent of the
shelling and the damage it caused, especially to the Old Town, were significantly
downplayed.1261 The disciplinary consequences of the investigation was said
to be that a battalion commander had been relieved of his command. Contrary to
what may have been understood by many at the time, it is now clear that this
battalion commander was not the commander who led the attack on Sr| and the
shelling, i.e. Captain Kova~evi} of the 3/472 mtbr. As indicated elsewhere in
this decision, it was Lieutenant- Colonel Jovanovi} of the 3/5 mtbr. 1262
Rather than being the commander of that battalion, he was only the
temporary commander. He had been appointed to the temporary command on 5
December, after the commander was granted leave, and he was relieved of his
command on the evening of 6 December, on the order of Admiral Joki}. 1263 He
was immediately returned to his normal duties. No disciplinary or other adverse
action was taken against him by anyone and he continued in his military
career.1264 No disciplinary or other adverse action was taken against Captain
Kova~evi} by Admiral Joki}. Admiral Joki} took no other disciplinary or
administrative action to better determine the truth of what occurred or to deal with
those responsible. As the evidence in this trial has established, the 120mm
mortars of the 3/5 mtbr were not within range of the Old Town on 6 December
1991.1265 These mortars fired extensively on 6 December 1991 but they could
not have shelled the Old Town. These were the only heavy weapons under the
command of Lieutenant-Colonel Jovanovi} on 6 December 1991. He was the
only JNA officer against whom Admiral Joki} took adverse action. It is
established, therefore, that no one had suffered any form of adverse disciplinary
or administrative action for the shelling of the Old Town on 6 December 1991 by
virtue of Admiral Joki}’s investigation of the shelling.
437. The Admiral in effect says he could not find any satisfactory evidence to
enable him to do anything more.1266 That is surprising indeed. The nature and
extent of the planning on 5 December 1991 and the identity and the role of the
people involved made it rather glaringly
6 December, T 8087-8088; Exhibit D108. Captain Ne{i} testified that on 7 December 1991 officers
from the command of the 9 VPS visited the soldiers of the 3/472 mtbr and spoke to them, T 8187.
See also Exhibit D112. Lieutenant Lemal also testified that on 6 December officers of the 9 VPS
visited his unit to discuss what had happened during that day and the moral of the troops, T 7420-
7422.
1261 See supra, para 174. 1262 Lieutenant-Colonel Jovanovi}, T 8094; Exhibit D65; Admiral Joki},
T 8553. See supra, para 174. 1263 See supra, para 387. 1264 According to Lieutenant-Colonel
Jovanovi} his removal meant that he changed from the fast track of promotion to
the regular track, T 8098. 1265 Admiral Joki}, T 4022-4023. 1266 Admiral Joki}, T 4116-4117.
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obvious that the attack on 6 December 1991 was pre-planned and not a
spontaneous action by Captain Kova~evi}, the Commander of the 3/472 mtbr,
which is what Admiral Joki} seeks to suggest he first understood the attack to be.
Even if he had thought the attack to be the conduct of Captain Kova~evi}, there is
no satisfactory explanation why no disciplinary or other action was taken by him
against Captain Kova~evi}. The suggestion which was made that he was being
protected by the Accused1267 does not explain why the Admiral did not exercise
his own administrative and disciplinary authority. An even less clear indication in
the evidence that a decision to relieve Captain Kova~evi} of his command could
not be implemented because his troops would not allow this to happen, 1268 is
neither sufficiently established by the evidence nor credible as a matter of fact.
Were it true it would be demonstrative of a failure of command responsibility.
Rather than being subjected to disciplinary or other adverse action, it was
Captain Kova~evi} who was in fact promoted only 8 days after 6 December
1991.1269 The other version of the events which emerged in the evidence of
Admiral Joki} was that the planning of the attack and the ordering of it was
deliberately kept from him.1270 If that were so, the conduct in particular of his
Chief of Staff Warship-Captain Zec would have warranted the most severe
disciplinary action. Their personal and professional relationship would have been
shattered. Yet no action was taken and both the Admiral and Warship-Captain
Zec continued in their previous roles as Commander and Chief of Staff of 9 VPS.
438. The Defence submits that, by virtue of the events at this meeting in
Belgrade on 6 December 1991, the Accused was excluded from the process of
the investigation of the action at Dubrovnik and precluded from taking any part in,
or exercising any of his authority with respect to, the discipline of those
involved.1271 It is submitted that this follows because General Kadijevi}, the
Accused’s superior, had assumed direct responsibility and had by-passed the
Accused by ordering Admiral Joki} to investigate and to report directly to him. 1272
It is submitted that Admiral Joki} was given an extraordinary assignment to
report directly to the General Staff, a report which was not submitted through the
2 OG,1273 and that “the command of the 2 OG was totally excluded from the
process of the establishment of the cause, the course and the consequences of
the action carried out in the zone of responsibility of the 9 VPS on 6 December
1991.”1274 The Defence further submits that as Admiral Joki} exercised his
authority to relieve from duty Lieutenant-Colonel Jovanovi} on
1267 Admiral Joki}, T 4081-4087; 4130. 1268 Slobodan Novakovi} testified that after 6 December
the army wanted to replace Captain Kova~evi} but the
soldiers were against that, T 6837-6838. 1269 See infra, para 441. 1270 On the Admiral’s evidence,
on the eve of 6 December 1991 Captain Kova~evi} reported to the command post of
2 OG instead of the command post of 9 VPS to which he was directly subordinated, T 4132. 1271
Defence Final Brief, paras 447-486. 1272 Defence Final Brief, paras 447-451. 1273
Defence Final Brief, para 482.
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6 December, and submitted a report directly to the General Staff, “from that
moment on [Admiral Joki}’s] right and duty [...] to carry out the investigation could
be neither stopped nor restricted by anyone.” 1275
439. In the Chamber’s finding, the facts do not provide a foundation for these
submissions. What is submitted is not the legal effect of what occurred, nor, in
the Chamber’s finding, is there the factual basis in the evidence for any
suggestion that the Accused believed this to be the case in 1991. The Chamber
is not persuaded in these circumstances that it is revealed that the Accused was,
or thought himself to be, excluded from acting, or that he was ordered not to take
action in respect of the events of 6 December 1991. Rather, the evidence
persuades the Chamber that the Accused was, at the very least by
acquiescence, a participant in the arrangement by which Admiral Joki} undertook
his sham investigation and sham disciplinary action, and reported to the First
Secretariat in a way which deflected responsibility for the damage to the Old
Town from the JNA.
440. The Accused was present throughout the meeting in Belgrade with General
Kadijevi}.1276 It is the evidence that the General was equally critical of both the
Accused and Admiral Joki}.1277 It is not suggested by the evidence that the
Accused objected or resisted in any way at the meeting, or later, to the proposal
of Admiral Joki} that he should investigate, or to General Kadijevi}’s apparent
acceptance of that.1278 There is no suggestion in the evidence that at any time
he proposed or tried to investigate or to take any action against any subordinate
for the shelling of the Old Town, or that he was prevented from doing so by
General Kadijevi} or any other authority.
441. As admitted by the Accused to Colm Doyle, and as found by the Chamber,
the Accused himself had a direct role in the launching of military action on 6
December, a military action which got gravely out of hand, conduct which may be
seen to well justify the critical view taken by General Kadijevi}. Nevertheless, this
indicates that the Accused was in sympathy with the military objectives of the
JNA action on 6 December. These factors provided clear reasons why the
Accused would not be minded to have the events of 6 December fully
investigated, or to take disciplinary or other adverse action himself against those
who directly participated. In addition, other evidence tends to confirm that the
Accused remained in sympathy with the military objectives of that action and
supportive of those who participated. Within a week or so of 6 December 1991,
effect was given to a proposal commenced in November, and which necessarily
had the endorsement of the Accused as Commander of the 2 OG, for the
promotion of Captain Kova~evi}
1274 Defence Final Brief, para 483. 1275 Defence Final Brief, para 466. 1276 Admiral Joki}, T
4079, 4080. 1277 Admiral Joki}, T 4079.
1278 Admiral Joki}, T 4081. Case No IT-01-42-T
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who led the actual attack on 6 December 1991. 1279 This promotion occurred in
mid-December, despite his critical role in the events of 6 December 1991. There
is no suggestion in the evidence of any attempt by the Accused to stop the
promotion. Further, while there is some dispute as to whether it occurred in mid-
December 1991 or March 1992, or indeed at all, 1280 it is also the case, in the
Chamber’s finding, that on the occasion of a visit to 3/472 mtbr by General Pani},
the JNA Deputy Chief of General Staff, when both the Accused and Admiral Joki}
were present, the Accused invited Captain Kova~evi} to nominate outstanding
participants in the events of 6 December 1991.1281
442. In these circumstances the Chamber is satisfied that it was not the case
that the Accused had been excluded from the exercise of his powers and
authority to investigate or discipline the officers of the 9 VPS that conducted the
attack on 6 December 1991 and were responsible for the shelling of the Old
Town, or that he had been ordered not to act in the matter. Rather, the Chamber
finds, he was, at the least, prepared to accept a situation in which he would not
become directly involved, leaving all effective investigation, action and decisions
concerning disciplinary of other adverse action to his immediate subordinate,
Admiral Joki}, whose task effectively was known to the Accused to be to smooth
over the events of 6 December 1991 as best he could with both the Croatian and
ECMM interests, while providing a basis on which it could be maintained by the
JNA that it had taken appropriate measures.
443. The Chamber would also observe that the reporting of Admiral Joki} to
General Kadijevi} and other members of the Federal Secretariat does not have
the significance, factually or legally, which the Defence would seek to place on it.
It is the case that, by the normal command structure of the JNA, a
communication from Admiral Joki} to General Kadijevi} would pass through the
Commander of the 2 OG. The apparent circumstances that, at a meeting when
all three were present, it was accepted that a report on one issue could or should
be made by Admiral Joki} directly to General Kadijevi} or the Federal Secretariat
does not necessarily have any implication for the role and authority of the
Accused, either in respect of that one issue or generally. It need be no more than
a convenient administrative method of dealing with that one issue, a method
acceptable to all three parties. Most significantly, in the finding of the Chamber,
the nature of Admiral Joki}’s reporting was NOT to provide General Kadijevi} with
information and/or recommendation for action and decision by General Kadijevi}
in respect of the events of 6 December 1991 and consequent disciplinary action.
Admiral Joki} merely reported what had occurred and what action he had taken.
All decision and action was by Admiral Joki}. That was
1279 1280 1281
Exhibit P133; Admiral Joki}, T 4119-4122; Lieutenant Lemal, T 7440-7441. Captain Ne{i}, T 8191.
Admiral Joki}, T 4117-4119.
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within his capacity and authority as commander of the 9 VPS. The Admiral
reported after he had acted. His report was merely to inform the Federal
Secretariat of the action that had been taken by him as Commander of the 9
VPS. The Accused, as Admiral Joki}’s immediate superior, remained undisturbed
and unrestrained in his power and authority to require more to be done by the
Admiral, or to act directly himself, had he so chosen. There was in fact no
decision or action by General Kadijevi} as the Accused’s superior, and none was
contemplated by Admiral Joki}’s reporting, which could be taken to impede any
action the Accused chose to take, or to limit or restrict the Accused’s authority as
commander of the 2 OG, in any way.
444. The evidence establishes, in the Chamber’s finding, that the Accused at all
material times had full material and legal authority to act himself to investigate, or
take disciplinary or other adverse action, against the officers of the 9 VPS who
directly participated in, or who failed to prevent or stop, the unlawful artillery
attack on the Old Town on 6 December 1991. Despite this the Accused chose to
take no action of any type. Given that one line of the Defence case is to submit
that Admiral Joki}, and his staff at 9 VPS, planned, authorised and oversaw the
attack on Dubrovnik on 6 December 1991, and deliberately kept word of the
attack from the Accused and 2 OG, until the attack had failed, 1282 it must also be
recorded, in the Chamber’s finding, that at no time did the Accused institute any
investigation of the conduct of Admiral Joki} or his staff, or take any disciplinary
or other adverse action against them in respect of the events of 6 December
1991.
445. While it is not the finding of the Chamber, we would also observe that had it
been the case that the Accused understood that General Kadijevi}, in some way,
had purported to usurp the Accused’s power and authority to investigate and
discipline the conduct of forces under his command in respect of the events of 6
December 1991, that would not have been sufficient in the circumstances to
relieve the Accused of his responsibility as Commander of 2 OG, or to excuse
him for failing to take appropriate investigative and disciplinary action. What had
occurred necessitated, in the Chamber’s view, positive efforts by the Accused to
seek to take effective investigative and disciplinary measures against those
under his command who had been responsible for the shelling of the Old Town,
and those who had failed to take appropriate steps to ensure that the shelling
was stopped. Had the Accused attempted to do so, but had found that General
Kadijevi} prevented or hampered his efforts, continued further efforts and
protests by the Accused to insist that action be taken would have been
appropriate.1283 In the end the remedy of resignation from the JNA would have
been appropriate in the circumstances. Of course, none of these things occurred.
1282 Defence Final Brief, paras 685-687. 1283 See supra, para 374.
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3. Conclusion
446. In view of the findings made earlier in this section, the Chamber is satisfied
that the Accused had effective control over the perpetrators of the unlawful
shelling of the Old Town of Dubrovnik of 6 December 1991. The Accused had the
legal authority and the material ability to stop the unlawful shelling of the Old
Town and to punish the perpetrators. The Chamber is further satisfied that as of
around 0700 hours on 6 December 1991 the Accused was put on notice at the
least of the clear prospect, that his artillery was then repeating its previous
conduct and committing offences such as those charged. Despite being so
aware, the Accused did not ensure that he obtained reliable information whether
there was in truth JNA shelling of Dubrovnik occurring, especially of the Old
Town, and if so the reasons for it. Further, the Accused did not take necessary
and reasonable measures to ensure at least that the unlawful shelling of the Old
Town be stopped. The Chamber is further satisfied that at no time did the
Accused institute any investigation of the conduct of his subordinates responsible
for the shelling of the Old Town, nor did he take any disciplinary or other adverse
action against them, in respect of the events of 6 December 1991. The Chamber
is therefore satisfied that the elements required for establishing the Accused’s
superior responsibility under Article 7(3) of the Statute for the unlawful shelling of
the Old Town by the JNA on 6 December 1991 have been established.
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VIII. CUMULATIVE CONVICTIONS A. Should there be cumulative
convictions?
447. The question of cumulative convictions arises where more than one charge
arises out of what is essentially the same criminal conduct. In this case the
artillery attack against the Old Town by the JNA on 6 December 1991 underlies
all the offences charged in the Indictment. The Appeals Chamber has held that it
is only permissible to enter cumulative convictions under different statutory
provisions to punish the same criminal conduct if “each statutory provision
involved has a materially distinct element not contained in the other”. 1284 Where,
in relation to two offences, this test is not met, the Chamber should enter a
conviction on the more specific provision.1285
448. For the reasons given earlier, the Chamber is satisfied that the elements
required for establishing the Accused’s criminal responsibility pursuant to Article
7(3) of the Statute, but NOT pursuant to Article 7(1), have been proved in respect
of each of the six counts in the Indictment.
449. The issue of cumulation arises first in relation to the offences of murder
(Count 1), cruel treatment (Count 2) and attacks on civilians (Count 3). The
statutory basis and the elements of each of these offences have been analyzed
earlier in this decision. A strict application of the above mentioned Appeals
Chamber test would allow cumulative convictions for murder and cruel treatment
as they each contain materially distinct elements (i.e. proof of the death of one or
more individuals resulting from an act or omission of the accused for murder and
mental or physical suffering or injury, or constituting a serious attack on human
dignity resulting from an intentional act or omission of the accused for cruel
treatment). However, since murder and cruel treatment do not contain an
element in addition to the elements of attacks on civilians and because the
offence of attacks on civilians contains an additional element (i.e. an attack) it is,
theoretically, the more specific provision.
450. In the present case, the essential criminal conduct was an artillery attack
against the Old Town inhabited by a civilian population. In the course of that
attack civilians were killed and injured. The essential criminal conduct of the
perpetrators is directly and comprehensively reflected in Count 3. The offence of
attacks on civilians, involved an attack directed against a civilian population,
causing death, and also serious injury, with the intent of making the civilian
population the object of the attack. Given these circumstances, in the present
case, the offence of murder adds
1284 êlebi}i Appeals Judgement, para 412. See also Kordi} Appeals Judgement, para 1032. 1285
êlebi}i Appeals Judgement, para 413. See also Krsti} Appeals Judgement, para 218, for a
more recent
articulation of the test by the Appeals Chamber.
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no materially distinct element, nor does the offence of cruel treatment the
gravamen of which is fully absorbed by the circumstances in which this attack on
civilians occurred.
451. For these reasons it appears to the Chamber that this is a case in which
there is no materially distinct element between the first three Counts. The
criminal conduct of the Accused in respect of the first three Counts, is fully, and
most appropriately reflected in Count 3, and the interests of justice and the
purposes of punishment will be fully satisfied if a conviction is entered only in
respect of Count 3, and not in respect of Counts 1 and 2.
452. The issue of cumulation also arises in relation to the remaining offences
charged in the Indictment. These are devastation not justified by military
necessity (Count 4), unlawful attacks on civilian objects (Count 5), and
destruction or wilful damage of cultural property (Count 6). The statutory basis
and the elements of each of these offences have been set out earlier in this
decision. The elements of each of these three offences are such that they each,
on a theoretical basis, contain “materially” distinct elements from each other.
453. The offence of attacks on civilian objects requires proof of an attack, which
is not required by any element of either the offence of devastation not justified by
military necessity or the offence of destruction of or wilful damage to cultural
property. The offence of destruction of or wilful damage to cultural property
requires proof of destruction or wilful damage directed against property which
constitutes the cultural or spiritual heritage of peoples, which is not required by
any element of the offence of attacks on civilian objects or the offence of
devastation not justified by military necessity. The offence of devastation not
justified by military necessity requires proof that the destruction or damage of
property (a) occurred on a large scale and that (b) was not justified by military
necessity. What is required by one offence, but not required by the other offence,
renders them distinct in a material fashion.
454. In the present case, however, the offences each concern damage to
property caused by the JNA artillery attack against the Old Town of Dubrovnik on
6 December 1991. The entire Old Town is civilian and cultural property. There
was large scale damage to it. There was no military justification for the attack. In
the view of the Chamber, given these particular circumstances, the essential
criminal conduct is directly and comprehensively reflected in Count 6, destruction
or wilful damage to cultural property. Counts 4 and 5 really add no materially
distinct element, given the particular circumstances in which these offences were
committed. The criminal conduct of the Accused in respect of these three
Counts, is fully, and most appropriately reflected in Count 6, and the interests of
justice and the purposes of punishment will be fully satisfied if a conviction is
entered only in respect of Count 6, and not in respect of Counts 4 and 5.
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455. For these reasons, in the particular circumstances in which these offences
were committed, the Chamber will enter convictions against the Accused only in
respect of Count 3, attacks on civilians, and Count 6, destruction and willful
damage of cultural property.
B. Concurrent responsibility under Articles 7(1) and 7(3) of the Statute
456. In the present case the Prosecution has only established the Accused’s
guilt on the basis of his responsibility as a superior under Article 7(3) of the
Statute. It has not been proved that the Accused ordered or aided and abetted
the offences charged under Article 7(1) of the Statute. No issue arises, therefore,
of concurrent responsibility under Articles 7(3) and 7(1).
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IX. SENTENCING
457. The Prosecution has submitted that the Accused, if convicted on all counts,
should receive a sentence of imprisonment of between thirteen and fifteen
years.1286
458. Article 24 of the Statute and Rule 101 of the Rules govern sentencing.
Article 24 (2) of the Statute provides that a Chamber “should take into account
such factors as the gravity of the offence and the individual circumstances of the
convicted person”.1287 Rule 101(B) requires that aggravating and mitigating
circumstances as well as the general practice regarding prison sentences in the
courts of the former Yugoslavia be taken into account, 1288 although the Chamber
is not bound by the latter.1289 The primary objectives of sentencing have been
identified by the Appeals Chamber as retribution and deterrence. 1290 The
former aims at imposing a just and appropriate punishment for a particular
offence,1291 while the latter seeks to ensure that the penalty imposed dissuade
the Accused and others from committing similar offences. 1292
A. The gravity of the offence
459. The gravity of the offence is a factor of paramount importance in the
determination of sentence.1293 Sentences must reflect the inherent gravity of the
totality of the criminal conduct of the accused, giving due consideration to the
particular circumstances of the case and to the form and
1286 Prosecution Final Brief, para 347. 1287 Article 24 of the Statute provides “1.The penalty
imposed by the Trial Chamber shall be limited to imprisonment.
In determining the terms of imprisonment, the Trial Chambers shall have recourse to the general
practice regarding prison sentences in the courts of the former Yugoslavia. 2. In imposing the
sentences, the Trial Chambers should take into account such factors as the gravity of the offence
and the individual circumstances of the convicted person. 3. In addition to imprisonment, the Trial
Chambers may order the return of any property and proceeds acquired by criminal conduct,
including by means of duress, to their rightful owners.”
1288 Rule 101 of the Rules provides: “(A) A convicted person may be sentenced to
imprisonment for a term up to and including the remainder of the convicted person’s life. (B) In
determining the sentence, the Trial Chamber shall take into account the factors mentioned in
Article 24, paragraph 2, of the Statute, as well as such factors as: (i) any aggravating
circumstances; (ii) any mitigating circumstances including the substantial cooperation with the
Prosecutor by the convicted person before or after conviction; (iii) the general practice regarding
prison sentences in the courts of the former Yugoslavia; (iv) the extent to which any penalty
imposed by a court of any State on the convicted person for the same act has already been
served, as referred to in Article 10, paragraph 3, of the Statute. (C) Credit shall be given to the
convicted person for the period, if any, during which the convicted person was detained in
custody pending surrender to the Tribunal or pending trial or appeal.”
1289 Krsti} Appeals Judgement, para 260; Bla{ki} Appeals Judgement, para
682, referring to the Kunarac Trial Judgement, para 829.
1290 êlebi}i Appeals Judgement, para 806; Aleksovski Appeals Judgement, para 185. Other,
less dominant objectives, include the promotion of legal awareness, public reprobation and
rehabilitation. See Bla{ki} Appeals Judgement, para 678; êlebi}i Appeals Judgement, para 806.
Nevertheless, it is the “individual guilt of an accused limits the range of the sentence.” See Staki}
Trial Judgement, para 899; Nikoli}, Sentencing Judgement, para 123.
1291 Todorovi} Sentencing Judgement, para 29; Nikoli} Sentencing Judgement, para 140. 1292
Todorovi} Sentencing Judgement, para 30. 1293 Aleksovski Appeals Judgement, para
182; êlebi}i Appeals Judgement, para 731; Bla{ki} Appeals Judgement,
para 683.
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degree of the participation of the accused.1294 In this regard, the Chamber notes
the jurisprudence of the Tribunal that war crimes are not inherently less serious
than crimes against humanity.1295
460. In the present case, the Prosecution submits that the gravity of the crimes is
characterised by the fact that the “civilians and civilian objects were defenceless
in face of the firepower of the JNA’s 2nd OG forces”,1296 and that the shelling
resulted in “long-term physical, psychological and emotional suffering of the
victims”,1297 “extensive damage to many, many homes”1298 and damage to
“numerous religious and educational institutions and historic monuments”. 1299
461. The Chamber has found the Accused guilty of the crimes of attacks on
civilians (Count 3) and destruction and wilful damage of cultural property (Count
6). It was established by the evidence that on 6 December 1991, forces under
the command of the Accused deliberately and unlawfully shelled the Old Town of
Dubrovnik and its civilian population, giving rise to casualties, two of them
fatal.1300 The same attack targeted civilian objects, causing destruction of and
extensive damage to property, both civilian and cultural. It is the finding of the
Chamber, as discussed earlier, that 52 buildings of the Old Town were damaged
on 6 December 1991, six of which were completely destroyed. Among these
damaged buildings were monasteries, churches, a mosque, a synagogue and
palaces.1301 The Chamber recalls in particular that the whole of the Old Town
of Dubrovnik was on the UNESCO World Heritage List.
462. Also of relevance to the gravity of the offence is the form of the Accused’s
participation in the commission of the crimes. In this respect, the Chamber
wishes to stress that the Accused was acquitted of the charges of having ordered
or aided and abetted the unlawful shelling of the Old Town of Dubrovnik. 1302
The evidence has not established that the Accused directly ordered the
shelling of the Old Town on 6 December 1991. What he is found to have ordered
is the capture of a military objective, i.e. Sr|. While the crimes were committed in
the course of this particular military operation, it was not established that the
Accused’s order was intended to authorise the unlawful shelling of the Old Town
of Dubrovnik. On the evidence, this unlawful shelling was conducted with the
authorisation of others, not of the Accused.
1294 Furundìja Appeals Judgement, para 249; Bla{ki} Appeals Judgement, para 683. 1295
Tadi} Sentencing Appeals Judgement, para 69; Furundìja Appeals Judgement, para 247.
1296 Prosecution Final Brief, para 329. 1297 Prosecution Final Brief, para 330. 1298
Prosecution Final Brief, para 332. 1299 Prosecution Final Brief, para 333. 1300 See
supra, paras 214; 250; 259; 414. 1301 See supra, para 318. 1302 See supra, paras 348; 356.
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463. The criminal liability of the Accused in this case is based on the finding of
the Chamber that, while he, as the commander of the 2 OG, was able to prevent
the unlawful shelling of the Old Town on 6 December 1991, to put an end to that
shelling while it was occurring, to investigate or take administrative and
disciplinary action against the officers who directly participated in, or who failed to
prevent or stop that shelling, the Accused did not take any of the measures
available to him to do so.
464. The Chamber further notes that Admiral Joki} pleaded guilty to the same
charges as the Accused, and acknowledged his responsibility for having aided
and abetted the unlawful shelling of the Old Town (Article 7(1) of the Statute) as
well as his responsibility as commander of the 9 VPS (Article 7(3) of the Statute)
for his failure to prevent such shelling or punish the perpetrators thereof. On this
basis, Admiral Joki} was sentenced to seven years imprisonment. 1303 There
is no doubt that the Accused’s position as a commander at a very high level in
the JNA command structure, reporting directly to the Federal Secretariat of
Defence,1304 serves to emphasize the seriousness of his failure to prevent the
shelling and to punish the perpetrators, i.e. his failure to exercise his authority in
accordance with the laws of war. Nevertheless, when it comes to determining an
appropriate sentence for the Accused, the Chamber also keeps in mind that
Admiral Joki}, as the Accused’s immediate subordinate, had direct command and
responsibility over the forces involved in the unlawful shelling of the Old Town.
While the Accused’s responsibility for his failure to act as the superior
commander of the forces involved is clearly established by the evidence, it
remains the case that he was more remotely responsible than Admiral Joki}.
Further, the Accused is convicted only pursuant to Article 7(3) of the Statute. It is
the case, however, that Admiral Joki} entered a guilty plea.
B. Aggravating and mitigating circumstances
465. The Statute and the Rules do not attempt to exhaustively define
aggravating and mitigating factors. Rule 101(B) lists only an accused’s
substantial cooperation with the Prosecutor as a mitigating circumstance. The
jurisprudence has identified additional factors which a Chamber may take into
account.1305 These are not exhaustive. The Chamber must weigh the
circumstances of
1303
1304 1305
Admiral Joki} has appealed against the Sentencing Judgement, arguing that the Trial Chamber
erred in finding him responsible for aiding and abetting on the basis of conduct with which he had
not been charged, i.e. acts and omissions before 6 December 1991. Admiral Joki} submits that
his sentence should therefore be adjusted, which the Prosecution conceded. See Prosecutor v.
Joki}, Appellant’s Brief Pursuant to Rule 111, Case No IT-42/1-A, 30 June 2004; See also,
Prosecution Final Brief, para 345.
See Exhibit P204, pp 7 and 28. Bla{ki} Appeals Judgement, paras 686 and 696.
Case No IT-01-42-T
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each particular case to identify aggravating and mitigating circumstances and
assess the weight to be accorded thereto. 1306
466. Aggravating circumstances must be directly related to the commission of
the offence,1307 and must be established beyond a reasonable doubt. 1308 The
exercise of the Accused of his right to remain silent, and not to testify, does not
constitute an aggravating circumstance.1309 Mitigating circumstances may be
taken into account regardless of whether they are directly related to the alleged
offence,1310 and are to be determined on a balance of the probabilities. 1311
467. In the present case, the Prosecution submits that relevant mitigating
circumstances include the “voluntary surrender of the Accused; his compliance
with the conditions of provisional release; his good character with no prior
criminal convictions; his comportment in detention; his character subsequent to
the conflict; his age; and his poor health.” 1312 The Defence further submits that
the Accused did not take an active part in the events 1313 (but this is advanced,
mainly, on the faulted factual basis that the events were carried out against his
orders and without his knowledge) and that casualties and damage occurred on
a far lesser scale than in other cases brought before the Tribunal. 1314
Further mitigating factors relied on by the Defence include the regrets
expressed by the Accused on the day after the attack, 1315 his voluntary surrender
to the Tribunal,1316 his age,1317 family situation,1318 good character1319 and poor
health,1320 in particular in view of the expected decline of his mental abilities. 1321
468. First, the Chamber takes into consideration the personal circumstances of
the Accused. Mrs Katica Strugar, the Accused’s wife, and Lieutenant-Colonel
Renko have both testified as to the good character of the Accused and his
respect for individuals regardless of their ethnic origin. Lieutenant-Colonel Renko
described him as a man of firm, yet humane nature, who likes to help people and
respects members of all ethnic groups,1322 and as a commander held in high
esteem
1306 êlebi}i Appeals Judgement, paras 777; 780; Bla{ki} Appeals Judgement, para 685. 1307
Kunarac Trial Judgement, para 850; Staki} Trial Judgement, para 911. 1308 êlebi}i Appeals
Judgement, para 763; Bla{ki} Appeals Judgement, paras 686. 1309 êlebi}i Appeals
Judgement, para 783; Bla{ki} Appeals Judgement, para 687.
1310 Staki} Trial Judgement, para 920. 1311 Bla{ki} Appeals Judgement, para 697. 1312
Prosecution Final Brief, para 341. 1313 Defence Final Brief, para 545. 1314 Defence Final
Brief, para 546. 1315 Defence Final Brief, para 547. 1316 Defence Final Brief, para 549. 1317
Defence Final Brief, para 548. 1318 Defence Final Brief, para 550. 1319 Defence Final
Brief, para 551. 1320 Defence Final Brief, para 552-562. 1321 Defence Final Brief, para
557. 1322 Lieutenant-Colonel Renko, T 8018; Katica Strugar, T 8035.
Case No IT-01-42-T
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because he listened to his subordinates1323 and cared about individual soldiers
and officers.1324 The
Chamber accepts this evidence without reservation. Mrs Strugar, a woman of
Serbian and Croatian
background,1325 stated that their different ethnic backgrounds were never an
obstacle to their life
together.1326 She portrayed her husband as a good husband and father who
always tried hard to
keep the family together although they were forced to move frequently due to his
service with the JNA.1327
469. In the view of the Chamber, the Accused’s personal and family
circumstances clearly warrant some mitigation of the sentence that would
otherwise be appropriate. The Accused is 71 years old and in poor health; he
suffers in particular from some degree of vascular dementia and depression and
experiences memory losses. The Accused’s wife, with whom he has been
married for 47 years and has two sons,1328 is also in poor health. In particular, she
experiences severe vision problems as a result of which she is becoming
increasingly dependent on others. She can no longer live on her own 1329 and
needs an escort to walk.1330 She is currently forced to stay most of the time
with either one of her two sons in Belgrade,1331 both of whom are unemployed.1332
In these circumstances, the Chamber is of the view that the absence of the
Accused while serving his sentence will be a particular hardship for his wife even
though she is receiving some assistance from others. It is satisfied that concern
for his wife’s well-being will also make the period spent in custody particularly
difficult for the Accused.
470. Turning to the Defence submission that the Accused expressed his regret
on the day after the attack, the Chamber notes that a sincere expression of
regret may constitute a mitigating circumstance, even in the absence of any
admission of participation in a crime.1333 In the present case, there is evidence
that the Accused expressed his regret in a letter to Minister Rudolf on the day
after the attack.1334 In light of the circumstances at the time, however, in
particular the ongoing negotiations with the Croatian representatives, the role of
the Accused in the attack on Sr|, and his failure to investigate and punish the
perpetrators of the crimes, the Chamber is not able to accept that this letter was
an expression of sincere remorse.
1323 Lieutenant-Colonel Renko, T 8020. 1324 Lieutenant-Colonel Renko, T 8022-8023. 1325
Katica Strugar, T 8035. 1326 Katica Strugar, T 8031. 1327 Katica Strugar, T 8032-
8034. 1328 Katica Strugar, T 8033. 1329 Katica Strugar, T 8037; 8040-8041. 1330 Katica
Strugar, T 8038. 1331 Katica Strugar, T 8040-8041. 1332 Katica Strugar, T 8041. 1333
Vasiljevi} Appeals Judgement, para 177.
Case No IT-01-42-T
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471. After the closing arguments of the parties, however, the Accused asked to
be allowed to make a statement to the Chamber. He stated in particular:
I am genuinely sorry for all human casualties and for all the damage caused. I am genuinely sorry
all the victims, for all the people who were killed in Dubrovnik, as well as for all those young
soldiers who were killed on Sr| as well as in other areas and positions. I am sorry that I was
unable to do anything to stop and prevent all that suffering. 1335
The Chamber accepts the sincerity of this statement although it takes a different
position from the Accused with respect to the last sentence.
472. The voluntary surrender of an Accused to the Tribunal is also relevant for
the purposes of mitigation.1336 In the present case, the Chamber notes that the
Accused surrendered voluntarily to the Tribunal on 4 October 2001. The
Chamber further notes that the Accused complied with the conditions set for his
provisional release, although his appearance for the start of his trial was delayed
about a week, apparently due to reasons of ill health. Further, the Chamber has
no reason to doubt the parties’ submission with respect to the Accused’s good
conduct during his detention at the UNDU.
C. The general practice in the courts of the former Yugoslavia
473. In determining the appropriate sentence, the Chamber must consider the
general sentencing practice in the former Yugoslavia. It is however not bound by
such practice1337 and can impose a sentence in excess of that which would be
applicable under the relevant law in the former Yugoslavia. 1338 The Chamber
first notes that the factors to be taken into consideration for the purpose of
sentencing in the former Yugoslavia are enshrined in Article 41(1) of the SFRY
Criminal Code which entered into force on 1 July 1977. 1339
1334 Minister Rudolf testified that on 7 December 1991, he received a letter from the Accused in
a blue envelope in which the Accused expressed his regrets over the events of the day before, T
5612-5613; 5615. The letter itself is not in evidence.
1335 Statement of the Accused, T 8808. 1336 Bla{ki} Appeals Jugdement, para 696. 1337
êlebi}i Appeals Judgement, paras 813; 816; Kunarac Appeals Judgement, para 377 ;
Jelisi} Appeals Judgement,
paras 116-117 ; Bla{ki} Appeals Judgement, para 681-682, referring to the Kunarac Trial
Judgement, para 829: “Although the Trial Chamber is not bound to apply the sentencing practice
of the former Yugoslavia, what is required certainly goes beyond merely reciting the relevant
criminal code provisions of the former Yugoslavia. Should they diverge, care should be taken to
explain the sentence to be imposed with reference to the sentencing practice of the former
Yugoslavia, especially where international law provides no guidance for a particular sentencing
practice. The Trial Chamber notes that, because very important underlying differences often exist
between national prosecutions and prosecutions in this jurisdiction, the nature, scope and the
scale of the offences tried before the International Tribunal do not allow for an automatic
application of the sentencing practices of the former Yugoslavia.”
1338 êlebi}i Appeals Judgement, para 816-817; Bla{ki} Appeals Judgement, para 681. 1339
Article 41(1) of the SFRY Criminal Code states: “The court shall determine the sentence for
the perpetrator of a
given crime within the limits prescribed by the law for this crime, bearing in mind the purpose of
the punishment and taking into account all the circumstances that could lead to this sentence
being more or less sever, in
Case No IT-01-42-T
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474. With regard to the sentence which could have been imposed on the
Accused by the courts in the former Yugoslavia, the Chamber refers to Articles
142 (“War Crime Against the Civilian Population”) 1340, 148 (“Making Use of
Prohibited Means of Warfare”)1341 and 151 (“Destruction of Cultural and Historical
Monuments”)1342 of the SFRY Criminal Code. Articles 38(1) and 38(2) of the
SFRY Code are also of relevance insofar as they provide for a maximum
sentence of 15 years imprisonment subject to the provision that if a criminal
offence attracts the death penalty, the court may impose a longer sentence of 20
years of imprisonment. By virtue of the above, the crimes against persons of
which the Accused has been found guilty would have been punishable in the
former Yugoslavia by sentences ranging from 5 to 20 years of imprisonment, and
the crimes against property by sentences ranging from 1 to 15 years of
imprisonment.
475. The Chamber notes that these provisions do not deal specifically with the
sentence of a commander for his failure to act. However, paragraph 21 of the
Instructions on the Application of International Laws of War in the Armed Forces
of SRFY,1343 read together with Article 24(1) of the SFRY Criminal Code, 1344
appear to allow for a commander who failed to act to prevent or punish a crime to
be sentenced as if he had committed the crime himself.
particular: the degree of criminal responsibility, the motives of the crime, the degree of the threat
or damage to protected property, the circumstances under which the crime was committed, the
background of the perpetrator, his personal circumstances and behavior after the commission of
the crime as well as other circumstances which related to the character of the perpetrator.”
(unofficial translation).
1340 Article 142 of the SFRY Criminal Code provides: “(1) Whoever, in violation of international
law in time of war, armed conflict or occupation, orders an attack against the civilian population,
settlement, individual civilians or persons hors de combat, as a consequence of which death has
occurred or serious bodily harm or grave impairment of health; indiscriminate attack affecting
civilian population; or killings, tortures or inhumane treatment of the civilian population [...]
unlawful and arbitrary destruction or large-scale appropriation of property not justified by military
necessity [...] shall be punished by no less than five years in prison or by death penalty. (2) The
punishment provided for in Paragraph 1 herein shall be applied to whomever, in violation of
international law in time of war, armed conflict or occupation, orders an attack to be launched
against objects protected by international law [...]; orders indiscriminate attack against civilian
objects under special protection of international law, undefended areas and demilitarised zones
[...].” (unofficial translation).
1341 Article 148 of the SFRY Criminal Code provides: “(1) Whoever orders the use of means or
practices of warfare prohibited by international law in time of war or armed conflict, or whoever
makes use of such means and practices shall be punished by no less than one year in prison. (2)
If more persons have been killed as a result of the offence referred to in Paragraph 1 herein, the
perpetrator shall be punished by no less than five years in prison or by death penalty.” (unofficial
translation).
1342 Article 151 of the SFRY Criminal Code provides: “(1) Whoever, in violation of international
law in time of war or armed conflict, destroys cultural or historical monuments and buildings or
institutions dedicated to science, art, education or humanitarian purposes, shall be punished by
no less than one year in prison. (2) If by commission of offence referred to in Paragraph 1 herein,
a building clearly distinguished as being under special protection of international law as part of
the cultural and spiritual heritage of peoples has been destroyed, the perpetrator shall be
punished by no less than five years of prison.” (unofficial translation).
1343 Exhibit P189. Paragraph 21 reads as follows: “An officer shall be answerable as an
accomplice or instigator if by failure to take action against his subordinate who violate the laws of
war, he contributes to the repeated commission of such acts by units or individuals subordinated
to him.” (unofficial translation).
1344 Paragraph 24(1) of the SRFY Criminal Code reads as follows: “Anybody who intentionally
aids another in the commission of a criminal act shall be punished as if he himself had committed
it, but his punishment may also be reduced.” (unofficial translation).
Case No IT-01-42-T
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31 January 2005
D. Credit for time served in custody
476. Pursuant to Rule 101(C) of the Rules, the Accused is entitled to credit for
the time spent in detention pending and during his trial, namely 457 days as of
the date of issuance of this judgement.
Case No IT-01-42-T
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X. DISPOSITION
477. For the foregoing reasons, having considered all of the evidence and the
submissions of the parties, the Chamber decides as follows:
478. The Chamber finds the Accused guilty pursuant to Article 7(3) of the Statute
of the following two counts:
Count 3: Attacks on civilians, a Violation of the Laws or Customs of war, under
Article 3 of the Statute;
Count 6: Destruction or wilful damage done to institutions dedicated to religion,
charity and education, the arts and sciences, historic monuments and works or
art and science, a Violation of the Laws or Customs of war, under Article 3 of the
Statute.
479. While the Chamber is satisfied that the elements of the following four counts
have been established pursuant to Article 7(3) of the Statute, for reasons given
earlier the Chamber does not record a finding of guilty against the Accused in
respect of:
Count 1: Count 2:
Count 4:
Count 5:
Murder, a Violation of the Laws or Customs of war, under Article 3 of the Statute;
Cruel Treatment, a Violation of the Laws or Customs of war, under Article 3 of
the Statute;
Devastation not justified by military necessity, a Violation of the Laws or Customs
of war, under Article 3 of the Statute;
Unlawful Attacks on Civilian Objects, a Violation of the Laws or Customs of war,
under Article 3 of the Statute.
480. The Chamber does not find the Accused guilty pursuant to Article 7(1) of
the Statute in respect of any of the six Counts.
481. The Chamber hereby sentences the Accused to a single sentence of eight
years of imprisonment.
482. The Accused has been in custody for 457 days. Pursuant to Rule 101(C) of
the Rules, he is entitled to credit for time spent in detention so far.
Case No IT-01-42-T
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483. Pursuant to Rule 103(C) of the Rules, the Accused shall remain in the
custody of the Tribunal pending the finalisation of arrangements for his transfer to
the State where he shall serve his sentence.
Done in English and French, the English text being authoritative.
Dated this thirty-first January 2005 At The Hague The Netherlands
Judge Krister Thelin
Judge Kevin Parker Presiding
Judge Christine Van Den Wyngaert
[Seal of the Tribunal]
Case No IT-01-42-T
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31 January 2005
ANNEX I: DESTROYED OR DAMAGED BUILDINGS OR
STRUCTURES1345
Number
Number in
Number in
Object
Annex to
Rule 98 bis
decision
Schedule II
J1
A 1/A 921346
31/439
The Arsenal (city walls) with the Cinema and Café 1347
J2
A2
26/35/361348
Vrata Od Pila (City gate, Pile) and fortification at Pile 1349
J3
A3
43
Stradun1350
J4
A4
44-521351
Complex of Franciscan Monastery and Church, HQs of ICRC 1352
J5
A5
53
Franciscan Monastery-Bell Tower1353
J6
A6
54
The Church of St. Saviour1354
J7
A7
57
Public fountain (Onofrio Fountain)1355
1345 A graphic display of destroyed or damaged buildings and structures can be found in Annex
I.A. 1346 The objects were merged, because both relate to the parts of Arsenal. See also
Exhibit C1/1, pp 19-21. 1347 Slobodan Vuković, T 5989-5990; Exhibit P61/39, paras 12, 16-17;
P145 (at 20:13, 20:26, 20:33-20:36). 1348 The objects were merged, because all three list the
area of Pile, i.e. Pile gate and fortification at Pile. The Chamber
finds it unnecessary to keep these different parts of Pile separately, because most of the
evidence does not make
this distinction. 1349 Nikola Jović, T 3033-3034; Slobodan Vuković, T 5830; 5920; 5958-5959;
Exhibit P61/39, para 12; Exhibit P63/6,
p 37; Exhibit P66 (at 37.34-37.40), Exhibit P145 (at 14.58-15.03, 15.25); Exhibit P178. 1350
Witness A, T 3705; \elo Jusi}, T 3265; Exhibit P78 (at 16:43; 16:53); Nikola Jovi}, T 3033;
Ivan Musta}, T 1475; Minister Rudolf, T 5619; Slobodan Vukovi}, T 5932-5933; 5826-5827;
Exhibit P145 (at 00:58-01:04; 02:54);
Exhibit P61/39, para 2; Exhibit P164, p 2; Lucijana Peko, T 1967; Slavko Grubi{i}, T 1039-1040.
1351 The objects were merged, because each of them lists only a certain part of the same
complex. The Chamber finds it unnecessary to keep these different parts of the Monastery
separately, because most of the evidence does not
make this distinction. 1352 Slavko Grubi{i}, T 1046; \elo Jusi}, T 3076, 3080, 3100-3102; Exhibit
P78 (at 33:50-40:10; 40:45-40:56; 41:54-
42:58); Ivan Mustac, T 1475; Nikola Jovi}, T 3033; Lars Brolund, T 879-880; Lucijana Peko, T
1870-1872; T 1940-1941; Exhibit P52; Exhibit P212; Exhibit P145 (at 05:14-06:15; 07:10-08:17;
09:07-09:11; 10:18-10:44; 16:36); Exhibit P61/39, para 7; Exhibit P63/6, pp 16, 18 (photo no. 35,
01848522); Exhibit P164, p 2; See also Exhibit C1/1, p 23.
1353 \elo Jusi}, T 3090; also Exhibit P80 at T 3122; Exhibit P78 (at 15:47-15:54; 16:18-16:23;
18:25-18:31; 37:55- 38:00; 24:56-25:05); Exhibit P145 (at 16:53); Slobodan Vukovi}, T 5962;
Exhibit P52; Exhibit P212 (I-10); Exhibit P61/39, para 9.
1354 Lucijana Peko, T 1904-08; Exhibit P52; Exhibit P212 (I-11); Exhibit P63/6, p 13 (photo no.
3, 01848492). 1355 Slavko Grubi{i}, T 1046; Ivo Vla{ica, T 3326; Nikola Jovi}, T 3033; Lars
Brolund, T 880; Exhibit P145 (at 04:59; 05:13); Exhibit P66 (at 35:58); Slobodan Vukovi}, T
5940; \elo Jusi}, T 3123; Exhibit P82; Exhibit P63/6, p 13 (photo no. 54, 01848535); Exhibit
P61/39, para 6; See also Exhibit C1/1, p 21; Exhibit C1/2, buildings A7 and
A34.
Case No IT-01-42-T
200
31 January 2005
Number
Number in
Number in
Object
Annex to
Rule 98 bis
decision
Schedule II
J8
A8
70
Complex of Sigurata Monastery1356
J9
A 91357
241
Palace - Od Sigurate 21358
(Residential, Block Placa - Antuninska
Street - Prijeko-Palmoti}eva Street 2)1359
J 10
A 10
244
Palace- Od Sigurate 1 (Festival Palace)
(Commercial, Block Placa -Od
Sigurate- Prijeko- C. Medovi} Street 1)1360
J 11
A 111361
247
Palace - Od Puča 16
(Residential, Od Pu~a 16)1362
J 12
A 13
293/3191363
Drì}eva Poljana Cathedral1364
J 13
A 14
298
St. Vlaho Church (St. Blaise Church)1365
J 14
A 18
303/3041366
Residential business, Izme|u Pola~a 101367
1356 Slavko Grubi{i}, T 1045, 1051, 1097, 1104; Exhibit P30 (“9”); Exhibit D14 (damage to the
roof); Exhibit P164, p 2; See also Exhibit C1/1, pp 17, 19; Exhibit C1/2, building A8.
1357 The Chamber notes that Prosecution in their Final Brief has indicated that A9 is located on
Od Pu~a 16 (para 187 and fn 413), thereby confusing this object with A11 (para 185 and fn 408).
However, it has made a correct marking of both buildings on the map annexed to its Brief (Annex
IV). The Chamber accepts the Prosecution marking on the map as an authoritative submission.
1358 Where the Chamber has identified a building in the Schedule, which is also mentioned in
para 23 of the Indictment as one of the six destroyed or burned out buildings, it is emphasised in
italics.
1359 Ivan Mustac, T 1474, 1479; Lucijana Peko, T 1966; \elo Jusić, T 3088; Zineta Ogresta, T
3472-3474, 3477-3480, 3482-3483; Exhibits P87 and P88); Slobodan Vuković, T 5825-5826,
5917, 5937-5939; markings on Exhibit P39 (“B”), Exhibit P81 (“i”), Exhibit P89 (“X”); Exhibit P66
(at 35.52, 36.34, 36.44), Exhibit P78 (at 24.00-24.35); Exhibit P145 (at 03.27-03.42); Exhibit
P63/9, pp 10-11; Exhibit P90.
1360 Ivan Mustac, T 1474; Slavko Grubišić, T 1036-1037; \elo Jusić, T 3076, 3086; Nikola Jović,
T 2952; Ivo Grbić, T 1375, 1377; \orde Ciganović, T 2735; Zineta Ogresta, T 3473, 3477-3480;
Exhibits P87 and P88; Slobodan Vuković, T 5825-5826, 5913-5914; markings on Exhibit P39
(“B”), Exhibit P75 (“G”), Exhibit P81 (“H”); Exhibit P66 (at 36.40), Exhibit P78 (at 23.36-24.03);
Exhibit P145 (at 12.00-12.50); See also Exhibit C1/1, p 17; Exhibit C1/2, building A10.
1361 See supra, footnote 1357. 1362 Ivo Grbi}, T 1360-69; 1377 (see also Exhibits P34-P38);
Lucijana Peko, T 1966; Slavko Grubi{i}, T 1040; \elo
Jusi}, T 3083-3084 (P81 (“E”); T. 3091; P78 (at 26:16-27:24); Ivan Mustac, T 1474 (P39 (“E”), T
1481; Slobodan Vukovi}, T 5832-33, 5864; 6107-08; P145 (at 13:04-05; 13:12), T 5949; P178
(“11”); P63/6 (photo no. 29, 01848516); See also Exhibit C1/1, p 18; Exhibit C1/2, building A11.
1363 The objects were merged, because both entries in Schedule II list “Drì}eva Poljana
Cathedral”. 1364 Slavko Grubi{i}, T 1043-44; Ivan Mustac, T 1475, 1482; P174 (X-1); Slobodan
Vukovi}, T 5830, 5889-90; P66
(36:38), T 5918; P52; P212; P61/39, para 19; P63/6, p 37. 1365 \elo Jusi}, T 3076; P78 (at 15:56-
16:03, 16:27-16:40, 18:11); Slavko Grubi{i}, T 1044; Mato Vajalo, T 2002;
Ivan Mustac, T 1475, 1482; Exhibit P66 (at 35:46), T 5913; Exhibit P145 (at 00:21; 00:25; 00:38;
00:51-53; 00:56), T 5931-5932; Exhibit P63/6, pp 13, 37; Exhibit P61/39, para 1; Exhibit P164, p
2; See also Exhibit C1/1, p 20; Exhibit C1/2, building A14.
Case No IT-01-42-T
201
31 January 2005
Number
Number in
Number in
Object
Annex to
Rule 98 bis
decision
Schedule II
J 15
A 23
309
Business, Izme|u Pola~a 51368
J 16
A 28
314
Serbian Orthodox Church1369
J 17
A 31
317
Residential business, Izme|u Pola~a1370
J 18
A 35
323
Residential, 2 Gunduli}eva Poljana (The Kati} Palace) 1371
J 19
A 39
328
Mosque1372
J 20
A 57
346
Palace Sorkocević – Miha Pracata 6
(Residential - commercial, 6 Miha Pracata Street) 1373
J 21
A 59
348/2951374
Palace - Od Puča 11
(Residential - commercial, Od Pu~a Street 11)1375
J 22
A 70
359
Residential, Od Domina Street 91376
J 23
A 74
363
Residential, Od Domina Street 11377
1366 The objects were merged, because both entries in Schedule II list Između Pola~a 10. 1367
Witness A, T 3625; Exhibit P95 and photo P96 (“A”); Exhibit P98, T 3627-3628; 3634;
3637-3639; Exhibit P97;
Exhibit P174 (IX-7); Slobodan Vukovi}, T 6088-6089 . 1368 P174 (IX-15); Slobodan Vukovi}, T
5881-5882; See also Exhibit C1/1, pp 20, 22; Exhibit C1/2, buiding A23. 1369 Slavko Grubi{i}, T
1043; \elo Jusi}, T 3094, Exhibit P78 (at 29:25-29:39, 29:50); Exhibit P174 (IX-20);
Slobodan Vukovi}, T 6096-6097; Exhibit P63/6, photo no. 35, 01848522; Captain Pepi}, T 7540.
1370 Ivan Musta}, T 1474, 1480, Exhibit P39 (“C”); Exhibit P174 (IX-24); Exhibit P145 (at 17:56-
17:58), Slobodan
Vukovi}, T 5965-5966; See also Exhibit C1/1, p 20; Exhibit C1/2, buiding A31. 1371 Exhibit P52;
Exhibit P212 (X-5); Exhibit P174; Slobodan Vukovi}, T 5893-5896; See also Exhibit C1/2, buiding
A35. 1372 Exhibit P52; Exhibit P212 (X-10); Exhibit P174; Slobodan Vukovi}, T 5890-5891, T
6100-6102; See also Exhibit
C1/1, p 22. 1373 Lucijana Peko, T 1966; Nikola Jovi}, T 3030-3031, 2937, Exhibit P75 (“D”), T
2960; \elo Jusi}, T 3097; Exhibit
P78 (at 32:09-32:36); Ivan Mustac, T 1474; Exhibit P174 (XI-15); Slobodan Vukovi}, T 5884-5886,
6102-6107, Exhibit P178 (“6”); Exhibit P63/6 (photos nos 32 and 33, 01848519 and 01848520);
See also Exhibit C1/1, p 22; Exhibit C1/2, building A57.
1374 The objects were merged, because both entries in Schedule II list Od Puča Street 11. 1375
Ivan Mustać, T 1474-1475; \elo Jusić, T 3096; Nikola Jović, T 2952, 2961; Ivo Grbić, T
1376; Slobodan
Vuković, T 5949-5953, 6052-6053, 6110-6115; markings on Exhibit P39 (“F”), Exhibit P75 (“E”);
Exhibit P78 (at 29.54-31.10); Exhibit P145 (at 13.23–14.39); Exhibit P174 (XI-17); See also
Exhibit C1/1, p 22; Exhibit C1/2, buiding A59.
1376 Exhibit P174 (XI-29); Slobodan Vukovi}, T 5896-5898. 1377 Exhibit P174 (XI-33);
Slobodan Vukovi}, T 5888-5889.
Case No IT-01-42-T
202
31 January 2005
Number
Number in
Number in
Object
Annex to
Rule 98 bis
decision
Schedule II
J 24
A 75
364
Domino Church1378
J 25
A 77
366
Residential - commercial, [iroka Street 51379
J 26
A 78
367
Palace Martinusic – Sv. Josipa 1
(Residential - commercial, St. Josip Street 1)1380
J 27
A 79
368
Church of St. Joseph1381
J 28
A 84
390
St. Roko Church1382
J 29
A 91
429
Luka Sorko~evi} Music Education Centre1383
J 30
A 94
442
Sponza Palace1384
J 31
A 95
444
Dominican Monastery1385
J 32
A 96
446
Annunciation Church1386
J 33
B1
Old City Port1387
1378 Slavko Grubi{i}, T 1040-1041, Exhibit P30 (“4.”); Exhibit P174 (XI-34); Exhibit P145 (12:56),
Slobodan Vukovi}, T 5947-5949; Exhibit P178 (“10”).
1379 Lucijana Peko, T 1966; Slavko Grubi{i}, T 1042-43; Ivo Grbi}, T 1376-77; Delo Jusi}, Exhibit
P78 (27:35-28:31); Exhibit P81 (“K”), T 3092-3093; Exhibit P174 (XI-36); Slobodan Vukovi}, T
5869; Exhibit P63/6, p 27.
1380 Slavko Grubi{i}, T 1042-1043; Ivo Grbi}, T 1376-1377; Ivan Mustac, T 1481 ; Exhibit P39
(“G”); \elo Jusi}, T 3093-3094, 3098; Exhibit P81 (“L”) ; Exhibit P78 (at 29:02-29:18); Exhibit P174
(XI-37); Slobodan Vukovi}, T 5869, T 5915-16; Exhibit P66 (at 36:15) .
1381 Slavko Grubi{i}, T 1041-1043, Exhibit P30 (“2”); \elo Jusi}, T 3098-3099, Exhibit P78 (at
33:04-33:14); Ivo Vla{ica, T 3340; Exhibit P66 (at 36:50) ; Slobodan Vukovi}, T 5918; Exhibit
P174 (XI-38); Exhibit P178 (“5”); Exhibit P63/6 (photo no. 58, 01848538); Exhibit P61/39, para 10;
Exhibit P164, p 2.
1382 Slavko Grubi{i}, T 1045, Exhibit P30 (“3”); Exhibit P164, p 2. 1383 \elo Jusi}, T 3107; Exhibit
P78 (at 6:02; 7:25). 1384 Ivan Mustac, T 1472-1473; Exhibit P145 (at 00:08) ; Slobodan Vukovi},
T 5930-5931; Exhibit P61/39, para 14;
Exhibit P164, p 2. 1385 \elo Jusi}, T 3072-3074; Exhibit P78 (at 13:34-13:55); Exhibit P78 (at
14:17-14:25); Exhibit P145 (at 18:27;
18:52), Slobodan Vukovi}, T 5984, 5986; Exhibit P178 (“7”); Colin Kaiser, T 2463; Exhibit P63/6, p
13 (photo no. 4, 01848493); pp 17, 20 (photo no. 13, 0184850), (03073350, p 27, no. 4 b) (see
also photo no. 71, 01848548), (03073354, p 31); Exhibit P61/39, para 13 .
1386 Exhibit P145 (at 19:30), Slobodan Vukovi}, T 5988; Exhibit P61/39, para 11 . 1387 Colin
Kaiser, T 2712; Exhibit P69.
Case No IT-01-42-T
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31 January 2005
Number
Number in
Number in
Object
Annex to
Rule 98 bis
decision
Schedule II
J 34
B2
House of Grubi{i} (Celestina Medovića 4)1388
J 35
B3
Synagogue1389
J 36
B4
Bo{kovićeva Street 11390
J 37
B5
Bo{kovićeva Street 31391
J 38
B6
Mr. Srhoj's, house (Od Sigurate 4 or 5)1392
J 39
B7
Shop on the corner of Stradun and [iroka 1393
J 40
B8
Building on the corner of Stradun and
Cubranovi}eva (Insula 8, building No 13)1394
J 41
B9
Residential building in Zlatari}eva Street 1395
J 42
B 10
Birth place of artist Ivo Vojinović (facing Stradun)1396
J 43
B 11
Building on the corner of Izme|u Pola~a and Nikole Boìdarevi}a 1397
J 44
B 12
Izme|u Pola~a 12 (IX-13)1398
1388 Slavko Grubi{i}, T 1022, 1038; marked as “1.” on Exhibit P30, T 1050. 1389 \elo Jusić, T
3081-3082; Exhibit P63/6, p 27, no. 19; p 37. 1390 Exhibit P63/6, pp 21 and 27 (no. 18a). 1391
Exhibit P63/6, p 27 (no. 18b).
1392 Zineta Ogresta, T 3471-3472, 3542, marked on Exhibit P89 with “A”. 1393 Slobodan
Vuković, T 5916-5917 (referring to it as a bookshop); Exhibit P 66 (at 36.19); Exhibit P78 (at
23.14-
23.24); Colin Kaiser, T 2451; Exhibit P64; See also Exhibit C1/2, building B7. 1394 Slobodan
Vuković, T 5939-5940, 5954-5958, 5961-5962; Exhibit P145 (at 04.16, 15.08-15.20); marked as
“15”
on Exhibit P178. 1395 Ivan Mustać, T 1474-1475, 1481; marked as “H” on Exhibit P39. 1396
\elo Jusić, T 3084-3085; Exhibit P78 (at 22.38-22.42, 22.48-23.00); marked with “F” on
Exhibit P81; See also
Exhibit C1/1, p 20; Exhibit C1/2, building B10. 1397 Slobodan Vuković, T 5965; Exhibit P145 (at
17.36-17.40); See also Exhibit C1/1, p 20; Exhibit C1/2, building
B11. 1398 Exhibit P174 (IX-13); Slobodan Vukovi}, T 5870-5873, T6091-6092.
Case No IT-01-42-T
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31 January 2005
Number
Number in
Number in
Object
Annex to
Rule 98 bis
decision
Schedule II
J 45
B 13
Izme|u Pola~a 14 (IX-14)1399
J 46
B 14
Jadran Restaurant1400
J 47
B 15
Residential building on St. Joseph's Street (with shops on the ground floor) 1401
J 48
B 16
City Bell Tower1402
J 49
B 17
Miha Pra~ata 4 (IX-23)1403
J 50
B 18
Nikola Jovi}’s shop (Miha Pra~ata 11)1404
J 51
B 19
Lucijana Peko’s house1405
J 52
B 20
Northern parts of the city walls/ walkways1406
1399 Exhibit P174 (IX-14); Slobodan Vukovi}, T5878-5881. 1400 Also called Klarisa/St. Klarisa
Monastery; Slobodan Vuković, T 5944-5946; Exhibit P61/39, para 8; Exhibit P145
(at 11.20-11.51, 16.01-16.07); marked as “2” on Exhibit P178. 1401 Ivan Mustać, T 1481;
marked with “i” on Exhibit P39 (the marking lies in fact on the corner of Od Puča and
\or|i}eva St., but the witness introduced it in his testimony as: “This is what we refer to as St.
Joseph's Street.”,
T 1481). 1402 Slavko Grubi{i}, T 1046, T 1116; Exhibit P61/39, para 15; See also Exhibit C1/2,
building B16. 1403 Slobodan Vuković, T 5883-5884; Exhibit P174 (XI-23); Exhibit P63/6, p 27, no.
29. 1404 Nikola Jović, T 2926, 2954-2955, 3030-3032; marked with “A” on Exhibit P75. 1405
Lucijana Peko, T 1843-1844, 1914-1917; marked with “X/A” on Exhibit P50, T 1844, 1846.
1406 Accounts pointing to different parts of the city walls/walkways in the northern part of the Old
Town were
reviewed together, because the identification of the exact location of each part of the city wall was
not possible. Slobodan Vuković, T 5963, 5988; Exhibit P61/39, para 12; Exhibit P145 (at 17.10,
20.02).
Case No IT-01-42-T
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ANNEX I.A: GRAPHIC DISPLAY OF DESTROYED OR DAMAGED BUILDINGS
AND STRUCTURES
Case No IT-01-42-T
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2 OG 3/472 mtbr 3/5 mtbr 107 OAG 9 VPS Additional Protocol I
Additional Protocol II
Akayesu Appeals Judgement Akayesu Trial Judgement Aleksovski Appeals
Judgement Aleksovski Trial Judgement Banović Sentencing Judgement BCS
Bla{kić Appeals Judgement
Bla{ki} Trial Judgement
Bosnia and Herzegovina Brđanin Trial Judgement
Second Operational Group Third Battalion of the 472 nd Motorised Brigade Third
Battalion of the 5th Motorised Brigade 107th Coastal Artillery Group Ninth Military
Naval Sector
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating
to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva,
8 June 1977
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating
to the Protection of Victims of Non-International Armed Conflicts (Protocol II),
Geneva, 8 June 1977
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96- 4-A, Judgement, 1 June
2001
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96- 4-T, Judgement, 2
September 1998
Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1- A, Judgement, 24 March
2000
Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1- T, Judgement, 25 June
1999
Prosecutor v. Predrag Banović, Case No. IT-02-65/1- S, Sentencing Judgement,
28 October 2003
Bosnian Croatian Serbian language
Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Judgement, 29 July 2004
Prosecutor v. Tihomir Bla{ki}, Case No. IT-95-14-T, Judgement, 3 March 2000
Republic of Bosnia and Herzegovina
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement, 1 September
2004
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ANNEX II: GLOSSARY OF TERMS
êlebi}i Appeals Judgement êlebi}i Trial Judgement
Chamber Češić Sentencing Judgement
Collins Dictionary
Common Article 3 Croatia Defence Defence Final Brief
Defence Pre-Trial Brief
EC ECMM Erdemovi} Second Sentencing Judgement
Furundìja Trial Judgement Galić Trial Judgement Geneva Accord Geneva
Convention I
Geneva Convention II
Prosecutor v. Zejnil Delalić et al, Case No. IT-96-21- A, Judgement, 20 February
2001
Prosecutor v. Zejnil Delalić et al, Case No. IT-96-21-T, Judgement, 16 November
1998
Trial Chamber II of the Tribunal
Prosecutor v. Ranko Češić, Case No. IT-95-10/1, Sentencing Judgement, 11
March 2004
Collins Dictionary and Thesaurus, HarperCollinsPublishers, Managing Director
W. T. McLeod, 1994
Article 3 of Geneva Conventions I to IV Republic of Croatia Counsel for the
Accused
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Defence Submission: Final
Trial Brief, 3 September 2004
Prosecutor v. Pavle Strugar, Case No. IT-01-42-PT, Defense Pre Trial Brief, 1
October 2003
European Community European Community Monitor Mission
Prosecutor v. Draèn Erdemovi}, Case No. IT-96-22-Tbis, Sentencing
Judgement, 5 March 1998
Prosecutor v. Anto Furundìja, Case No. IT-95-17/1-T, Judgement, 10 December
1998
Prosecutor v. Stanislav Galić, Case No. IT-98-29, Judgement, 5 December 2003
Geneva Accord, 23 November 1991, UN Doc. S/23239, Annex
Geneva Convention I for the Amelioration of the Condition of the Wounded and
Sick in Armed Forces in the Field of 12 August 1949
Geneva Convention II for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea of 12 August 1949
Case No IT-01-42-T
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Geneva Convention III
Geneva Convention IV
Geneva Conventions Hadžihasanović 98bis Decision
Hague Convention IV Hague Convention IX Hague Convention of 1954 Hague
Regulations
Hostage case ICRC
ICRC Commentary on the Additional Protocols
ICTR
ILC Commentary
Indictment
Geneva Convention III Relative to the Treatment of Prisoners of War of 12
August 1949
Geneva Convention IV Relative to the Protection of Civilian Person in Time of
War of 12 August 1949
Geneva Conventions I to IV of 12 August 1949
Prosecutor v. Enver Hadìhasanović and Amir Kubura, Case No. IT-01-47-T,
Decision on Motions for Acquittal pursuant to Rule98bis of the Rules of
Procedure and Evidence, 27 September 2004
Convention Respecting the Laws and Customs of War on Land, The Hague, 18
October 1907
Convention Concerning Bombardment by Naval Forces in Time of War, The
Hague, 18 October 1907
Convention for the Protection of Cultural Property in the Event of Armed Conflict,
The Hague, 14 May 1954
Regulations Respecting the Laws and Customs of War on Land annexed to
Hague Convention IV of 18 October 1907
Judgement of the Nuremberg Military Tribunal V, 19 February 1948, United
States v. Wilhelm List et al.
International Committee of the Red Cross
Commentary on the Additional Protocols of 8 June 1977 to the Geneva
Conventions of 12 August 1949, International Committee of the Red Cross,
Geneva, 1987
International Criminal Tribunal for the Prosecution of Persons Responsible for
Genocide and Other Serious Violations of International Humanitarian Law
Committed in the Territory of Rwanda and Rwandan Citizens Responsible for
Genocide and Other Such Violations Committed in the Territory of Neighbouring
States, between 1 January 1994 and 31 December 1994
International Law Commission Commentary on Article 6 of the Draft Code of
Crimes Against The Peace and Security of Mankind, Report of the International
Law Commission on the work of its 48th session, UN doc. A/51/10
Prosecutor v. Pavle Strugar, Case No. IT-01-42-PT, Third Amended Indictment,
10 December 2003
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Jelisi} Appeals Judgement JNA Jokić Sentencing Judgement Kordić Appeals
Judgement Kordi} Trial Judgement Krnojelac Trial Judgement Krstić Appeals
Judgement Kunarac Appeals Judgement Kunarac Trial Judgement Kupre{ki}
Appeals Judgement Kupre{ki} Trial Judgement Kvo~ka Trial Judgement MUP
Naletilić Trial Judgement
Nikolić Sentencing Judgement Plav{i} Sentencing Judgement
Prosecution Prosecution Final Brief
Prosecutor v. Goran Jelisi}, Case No. IT-95-10-A, Judgement, 5
July 2001
Yugoslav Peoples’ Army (Army of the Socialist Federal Republic of Yugoslavia)
Prosecutor v. Miodrag Joki}, Case No. IT-01-42/1-S, Sentencing Judgement, 18
March 2004
Prosecutor v. Dario Kordić & Mario Čerkez, Case No. IT-95-14/2-A, Judgement,
17 December 2004
Prosecutor v. Dario Kordi} & Mario Čerkez, Case No. IT-95-14/2-T, Judgement,
26 February 2001
Prosecutor v. Milorad Krnojelac Case No. IT-97-25-T, Judgement, 15 March
2002
Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Judgement, 19 April 2004
Prosecutor v. Dragoljub Kunarac et al., Case No. IT- 96-23&23/1-A, Judgement,
12 June 2002
Prosecutor v. Dragoljub Kunarac et al., Case No. IT- 96-23/1-T, Judgement, 22
February 2001
Prosecutor v. Zoran Kupre{ki} et al., Case No. IT-95- 16-A, Judgement, 23
October 2001
Prosecutor v. Zoran Kupre{ki} et al., Case No. IT-95- 16-T, Judgement, 14
January 2000
Prosecutor v. Miroslav Kvo~ka et al., Case No. IT-98- 30-T, Judgement, 2
November 2001
Ministry of the Interior Police
Prosecutor v. Mladen Naletilić aka “Tuta” and Vinko Martinović aka “Štela”, Case
No. 98-34-T, Judgement, 31 March 2003
Prosecutor v. Dragan Nikolić, Case No. IT-94-2-S, Sentencing
Judgement, 18 December 2003
Prosecutor v. Biljana Plav{i}, Case No. IT-00- 39&40/1-S,
Sentencing Judgement, 27 February 2003
The Office of the Prosecutor
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Prosecution’s
Final Trial Brief, 30 August 2004
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Prosecution Pre-Trial Brief
Rule 98bis Decision
Rules Statute
SFRY SFRY Criminal Code
Sikirica et al. Sentencing Judgement
Simić Sentencing Judgement Simić Trial Judgement
Slovenia Stakić Trial Judgement
Strugar Appeals Chamber Decision on Jurisdiction
Strugar Trial Chamber Decision on Jurisdiction
T
Tadi} Appeals Judgement
Prosecutor v. Pavle Strugar, Case No. IT-01-42-PT, Prosecutor’s Pre-Trial Brief
Pursuant to Rule 65 ter(E) (i), 12 December 2003
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Decision on
Defence Motion Requesting Judgement of Acquittal Pursuant to Rule 98bis, 21
June 2004
Rules of Procedure and Evidence of the Tribunal
Statute of the International Criminal Tribunal for the former Yugoslavia
established by Security Council Resolution 827
Socialist Federal Republic of Yugoslavia
Socialist Federal Republic of Yugoslavia Criminal Code of 1977, as amended of
28 June 1990 (Amendment 38/90)
Prosecutor v. Du{ko Sikirica, Damir Do{en and Dragan Kolundìja, Case No. 95-8-
S, Sentencing Judgement, 13 November 2001
Prosecutor v. Blagoje Simić, Case No. IT-95-9/2-S, Sentencing
Judgement, 17 October 2002
Prosecutor v. Blagoje Simić, Miroslav Tadić and Simo Zarić, Case No. IT-95-9,
Judgement, 17 October 2003
Republic of Slovenia
Prosecutor v. Milomir Stakić, Case No. IT-97-24-T, Judgement, 31
July 2003
Prosecutor v. Pavle Strugar, Miodrag Jokić & Others, Case No. IT-01-42-AR72,
Decision on Interlocutory Appeal, 22 November 2002
Prosecutor v. Pavle Strugar, Miodrag Jokić & Others, Case No. IT-01-42-PT,
Decision on Defence Preliminary Motion Challenging Jurisdiction, 7June 2002
Transcript of hearing in the present case. All transcript pages referred to in this
judgement are taken from the unofficial, uncorrected version of the transcript.
Minor differences may therefore exist between the pagination therein and that of
the final transcript released to the public
Prosecutor v. Du{ko Tadi} aka “Dule”, Case No. IT- 94-1-A, Judgement, 15 July
1999
Case No IT-01-42-T
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31 January 2005
Tadi} Jurisdiction Decision
Tadi} Sentencing Appeal
Tadić Trial Judgement TO
Tribunal
UN UNESCO
UNPROFOR UNSC Vasiljević Appeals Judgement
Vasiljević Trial Judgement VPO
ZNG
Prosecutor v. Du{ko Tadi} aka “Dule”, Case No. IT- 94-1-AR72, Decision on the
Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995
Prosecutor v. Du{ko Tadi} aka “Dule”, Case No. IT- 94-1-A and IT-94-1-Abis,
Judgement in Sentencing Appeals, 26 January 2000
Prosecutor v. Du{ko Tadić aka “Dule”, Case No. IT- 94-1, Judgement, 14 July
1997
Territorial Defence
International Tribunal for the Prosecution of Persons Responsible for Serious
Violations of International Humanitarian Law Committed in the Territory of the
Former Yugoslavia since 1991
United Nations
United Nations Educational, Scientific and Cultural Organisation
United Nations Protection Force United Nations Security Council
Prosecutor v. Mitar Vasiljević, Case No. IT-98-32-A, Judgement, 25 February
2004
Prosecutor v. Mitar Vasiljević, Case No. IT-98-32-T, Judgement, 29 November
2002
Military Naval District Croatian National Guards Corps
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Annex III.A:
Annex III.B: Annex III.C: Annex III.D: Annex III.E: Annex III.F:
Map of Croatia showing border with Serbia and Montenegro, and Bosnia and
Herzegovina (Exhibit P9)
Map of the wider Dubrovnik area (Exhibit P10) Aerial photograph of the Old Town
of Dubrovnik (Exhibit P17) Photograph of the Old Town of Dubrovnik from Sr|
(Exhibit C1/2) Photograph of the Old Town of Dubrovnik from @arkovica (Exhibit
C1/2) Street Map of the Old Town of Dubrovnik (Exhibit C1/5)
Case No IT-01-42-T
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ANNEX III: MAPS & PHOTOGRAPHS
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31 January 2005
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31 January 2005
Case No IT-01-42-T
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31 January 2005
Case No IT-01-42-T
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31 January 2005
Case No IT-01-42-T
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31 January 2005
ANNEX IV: PROCEDURAL HISTORY A. Pre-trial proceedings
1. Indictment and initial appearance
484. The Accused was initially indicted together with Miodrag Jokić, Milan Zec
and Vladimir Kovačević. The indictment, confirmed on 27 February 2001 by
Judge Patricia Wald, alleged fifteen counts of violations of the laws or customs of
war punishable under Article 3 of the Statute and one count of grave breaches of
the Geneva Conventions of 1949 punishable under Article 2 of the Statute in
respect of each of the four accused. The acts and omissions forming the basis of
the indictment were alleged to have occurred between 1 October 1991 and 31
December 1991.
485. The Accused surrendered voluntarily to the custody of the Tribunal on 4
October 2001 and was transferred to the UNDU on 21 October 2001. At his initial
appearance, which took place on 25 October 2001 before Judge Rodrigues, the
Accused pleaded not guilty to all counts in the indictment.
2. History of indictments
486. On 18 January 2002 the Defence filed a preliminary motion pursuant to
Rule 72 alleging (i) lack of subject matter jurisdiction with respect to the charges
of attacks on civilians and unlawful attacks on civilian objects and (ii) defects in
the form of the indictment. The Trial Chamber dealt separately with each of these
issues. On 7 June 2002 the Chamber dismissed the motion alleging lack of
subject matter jurisdiction.1407 This decision was confirmed by the Appeals
Chamber on 22 November 2002.1408 On 28 June 2002 the Chamber granted
partly the motion alleging defects in the form of the indictment and ordered the
Prosecution to amend the original indictment. 1409
487. On 18 July 2002 the Prosecution sought withdrawal of the indictment
against Milan Zec without prejudice. This was authorised by Trial Chamber I on
26 July 2002.1410 An application to amend the indictment together with an
amended indictment was filed by the Prosecution the same day. 1411 On 30
August 2002 the Defence opposed the Prosecution’s application and filed a
second preliminary motion alleging defects in the form of the indictment. 1412
By a decision of
1407 Decision on Defence Preliminary Motion Challenging Jurisdiction, 7 June 2002. 1408
Decision on Defence Interlocutory Appeal, 22 November 2002. 1409 Decision on Defence
Preliminary Motion Concerning the Form of the Indictment, 28 June 2002. 1410 Order
Authorising the Withdrawal of the Charges against Milan Zec without Prejudice, 26 July 2002. 1411
Prosecutor’s Amended Indictment and Leave to Leave to Amend, 26 July 2002. 1412
Defence Response to the Prosecution Application for Leave to Amend the Indictment, 30
August 2002; Defence
Second Preliminary Motion, 30 August 2002.
Case No IT-01-42-T
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31 January 2005
17 March 2003, the Trial Chamber granted the Prosecution’s application to
amend the indictment and simultaneously ordered the Prosecution to amend the
proposed indictment.1413 The new indictment (Amended Indictment) alleging
fifteen counts of violations of the laws or customs of war pursuant to Article 3 of
the Statute was filed on 31 March 2003. A third Defence motion alleging defects
in the form of the indictment was denied by the Trial Chamber on 28 May
2003.1414
488. On 27 August 2003 the Prosecution filed a motion seeking leave to file a
Second Amended Indictment inter alia limiting the charges ratione temporis to
events occurring between 6 and 31 December 1991. Leave to amend was
granted by the Trial Chamber by two consecutive decisions on 18 September
2003 and 13 October 2003. The Second Amended Indictment alleging six counts
of violations of the laws or customs of war pursuant to Article 3 of the Statute was
filed on 17 October 2003.
489. On 10 December 2003 following the guilty plea of Miodrag Joki} and the
severance of the proceedings against Vladimir Kova~evi}, the Prosecution filed a
Third Amended Indictment, which forms the basis for this Judgement.
3. Severance of proceedings and guilty pleas
490. On 27 August 2003 Miodrag Joki} pleaded guilty to six counts of violations
of the laws or customs of war as alleged in the Second Amended Indictment. On
17 September 2003 Trial Chamber I separated the proceedings against Miodrag
Joki}.1415 Following the arrest of Vladimir Kova~evi} on 25 September 2003 and
his transfer to the UNDU, on 18 November 2003, the Prosecution filed a motion
to sever the proceedings against the Accused. Trial Chamber I granted the
motion on 26 November 2003. By the same decision the Trial Chamber
scheduled the commencement of trial for 9 December 2003 and vacated the
order for the Accused’s provisional release. 1416 The Defence’s request for
certification to appeal the Trial Chamber’s decision was dismissed on 12
December 2003.1417
1413 Decision on the Prosecutor's Amended Indictment and Application for Leave to Amend, 17
March 2003. 1414 Decision on the Defence’s Third Preliminary Motion, 28 May 2003. 1415 Order
for Separation, 17 September 2003. 1416 Decision on the Prosecutor’s Motion for Separate
Trial and Order to Schedule a Pre-Trial Conference and the Start
of the Trial Against Pavle Strugar, 26 November 2003. 1417 Decision on the Defence’s
Request for Certification to Appeal the Trial Chamber’s Decision Dated 26 November
2003 on the Prosecutor’s Motion for Separate Trial and Order to Schedule a Pre-Trial Conference
and the Start of the Trial Against Pavle Strugar, 12 December 2003.
Case No IT-01-42-T
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31 January 2005
1418 1419 1420 1421 1422
1423 1424
Order on the Provisional Release of the Accused Pavle Strugar, 30 November 2001. Order for
Return to the United Nations Detention Unit, 24 September 2003. Order Adjourning Trial, 1
October 2003. Order for Continuance of Provisional Release, 1 October 2003.
Decision on the Prosecutor’s Motion for Separate Trial and Order to Schedule a Pre-Trial
Conference and the Start of the Trial Against Pavle Strugar, 26 November 2003. Decision and
Order Relating to the Accused Pavle Strugar’s Request for Postponement, 2 December 2003.
Further Order Delaying the Pre-Trial Conference and the Start of the Trial Against Pavle Strugar,
9 December 2003.
Case No IT-01-42-T
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4. Order for provisional release
491. On 22 November 2001 the Defence filed a motion for the Accused’s
provisional release on the grounds of his serious medical condition. The motion
was granted by Trial Chamber I on 30 November 2001. 1418
5. Commencement of trial and vacation of the Accused’s order for provisional
release
492. The Prosecution filed its pre-trial brief on 27 August 2003. The Defence pre-
trial brief was filed on 1 October 2003.
493. In anticipation of the commencement of trial of the Accused, initially
scheduled to begin on 9 October 2003, Trial Chamber I suspended the
Accused’s provisional release effective from 6 October 2003. 1419 The trial was
adjourned on 1 October 2003 following Vladimir Kova~ević’s arrest on 25
September 2003.1420 As a result, the Accused’s provisional release was
continued.1421
494. On 26 November 2003 Trial Chamber I severed the proceedings against
the Accused, and scheduled the commencement of the trial for 9 December
2003.1422 By the same decision, the Chamber vacated the order for the
Accused’s provisional release.
495. On 28 November 2003 the Defence requested adjournment of the trial and
continuation of Accused’s provisional release on medical grounds. On 2
December the Chamber confirmed its order of 27 November and granted the
Accused a 24 hour extension to comply with its order vacating his provisional
release.1423
496. As the Accused was not present at the seat of the Tribunal on 9 December
2003, the Trial Chamber delayed the commencement of the trial until further
order.1424
497. The Accused was transferred to the United Nations Detention Unit on 12
December 2003. On 15 December 2003 the Trial Chamber scheduled the pre-
trial conference for 15 December and
the start of the trial for 16 December 2003.1425 The pre-trial conference was held
on 15 December 2003 before Judge Orie.
6. Trial Chamber composition
498. On 22 October 2001 the President of the Tribunal assigned the case to Trial
Chamber I comprising Judge Almiro Rodrigues, Judge Fuad Riad and Judge Liu
Daqun. On 3 December 2001 by an order of Trial Chamber I Judge Alphons Orie
was designated the pre-trial Judge in the matter. 1426
499. On 15 December 2003 the President of the Tribunal assigned the case to
Trial Chamber II, composed of Judge Kevin Parker (presiding), Judge Krister
Thelin and Judge Christine Van Den Wyngaert. 1427
B. Trial proceedings
1. Overview
500. The Prosecution case commenced on 16 December 2003 and ended on 18
May 2004. The Defence case started on 28 June 2004 and ended on 22 July
2004. The Chamber sat for 100 trial days. The Prosecution called a total of 29
viva voce witnesses, among them 3 experts, and tendered two witness
statements into evidence pursuant to Rule 92bis(C). 292 Prosecution exhibits
were admitted. The Defence called 19 viva voce witnesses, among them 2
experts. In total, 119 Defence exhibits were admitted. The final briefs were filed
on 31 August 2004 by the Prosecution and on 3 September 2004 by the
Defence. Closing arguments were heard on 8 and 9 September 2004.
2. Matters relating to witnesses
501. Two written decisions on protective measures pursuant to Rule 75 were
issued. The first, dated 16 January 2002, granted a Prosecution motion
requesting such measures in relation to non- public materials disclosed to the
Accused and his defence team.1428 The second, granted a Prosecution motion
for the testimony of a witness to be heard in closed session. 1429 Additional
protective measures for witnesses were granted orally during the trial.
1425 Scheduling Order for the Pre-Trial Conference and the Commencement of the Trial Against
Pavle Strugar and Decision on Pavle Strugar’s Request for Postponement, 15 December 2003.
1426 Order Designating Pre-Trial Judge, 3 December 2001. 1427 Order Assigning Judges to
a Case Before a Trial Chamber, 15 December 2003. 1428 Order on Prosecution’s Motions for
Protective Measures, 16 January 2002. 1429 Order for Protective Measures, 6 April 2004
(Confidential).
Case No IT-01-42-T
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31 January 2005
502. On three occasions the Chamber dealt with the issue of witnesses giving
evidence by way of video-link. On 20 January 2004, the Chamber partially
granted a Prosecution motion seeking to admit the evidence of twelve witnesses
by way of video-conference link pursuant to Rule 71bis. 1430 On 16 April 2004,
following a motion filed by the Prosecution, the Chamber issued a decision
allowing a witness to give evidence via video-link from a federal facility in
Tucson, United States.1431 Finally, on 6 July 2004, the Chamber granted a
Defence motion seeking to admit the evidence of witness Lieutenant-Colonel
Jovanovi} by way of video-conference. 1432
503. While subpoenas were issued to two individuals at the request of the
Defence, it was later determined by the Defence that their evidence was not
required.
3. Evidentiary issues
504. On 30 September 2003, the Prosecution filed a motion seeking leave to
admit witness statements in lieu of oral testimony under Rule 92bis, and the
statements of two deceased witnesses under Rule 92bis(C). 1433 The
Chamber granted the motion in respect of the witness statements tendered under
Rule 92bis(C), and denied it as to the other statements. 1434
505. On 16 December 2003, the Defence raised an oral objection to those parts
of the Prosecution opening statement which referred to evidence of shelling
incidents, alleged to have been carried out by the Accused’s subordinates, in the
period preceding that charged in the Third Amended Indictment. 1435 The
Chamber, while rejecting the Defence objection, limited the admission of
evidence concerning prior shelling incidents to situations in which it went to prove
the Accused’s state of mind in relation to the acts charged in the Indictment. 1436
506. The Chamber issued four decisions on the admission into evidence of
expert reports pursuant to Rule 94bis. In a decision of 12 December 2003, the
Chamber, dismissed the Defence objections to the qualifications of Dr John
Allcock as an expert, and accepted his expert report. 1437 Following the Defence
responses to the Prosecution’s submissions of the expert reports of Major
General Milovan Zorc and of Lieutenant-Colonel Jožef Poje, respectively, the
Chamber rejected the
1430 Decision on the Prosecution Motion to Admit Evidence via Video-Conference Link, 20
January 2004. 1431 Decision on the Prosecution Motion for Video-link Testimony, 16 April 2004.
1432 Decision on the Defence Motion to Admit Evidence via Video-Conference Link, 6 July
2004. 1433 Prosecution’s Motion for Admission of Statements Pursuant to Rule 92bis of the
Rules of Procedure and
Evidence, 30 September 2003 (Confidential). 1434 Decision on Prosecution Request to Admit
Written Witness Statements Pursuant to Rule 92bis, 22 January 2004
(Confidential). 1435 The Defence subsequently filed a written motion on this matter. See Defence
Submission on Objection to the
Prosecution’s Opening Statement, 12 January 2004. 1436 Decision on the Defence Objection to the
Prosecution’s Opening Statement Concerning Admissibility of
Evidence, 22 January 2002.
Case No IT-01-42-T
224
31 January 2005
Defence objections and admitted both expert reports as evidence. 1438 On 22
July 2002, during the testimony of the witness, the Chamber admitted into
evidence the expert report of Defence expert Janko Viličić. Finally, on
9September 2004, the Chamber admitted the expert report of Dr Miodrag Šoć, to
which the Prosecution had not objected, in a decision on the admissibility of that
and other evidence.1439
507. Both parties filed motions for the admission of documentary evidence after
the close of their respective cases. The Prosecution’s motion was partially
granted by the Chamber.1440 Decision II was in respect of the Defence Motion
of 22 July 20041441 and the Defence Submission of 26 July 2004,1442 and by it the
Chamber partially granted each of these motions. 1443 Decision III was in respect
of the Defence Motion of 6 August 2004, which sought to have admitted certain
documents as Defence evidence in rejoinder pursuant to Rule 85(A)(iv). 1444
The Chamber admitted into evidence one of the four documents proposed
by the Defence.1445
4. Access to documents
508. During the course of the trial, the Defence filed a motion requesting the
Chamber to order the Government of the Republic of Croatia to produce certain
documents pursuant to Rules 54 and 54bis.1446 The Chamber found the
documents requested by the Defence to be relevant to the case, and considered
that the Defence had taken reasonable steps to obtain these documents. 1447
A hearing was scheduled, at which a representative of the Government of
the Republic of Croatia agreed to disclose the requested documents to the
Defence.1448
509. On 22 March 2004, the Defence filed a motion seeking access to the
confidential plea agreement of Admiral Jokić, the Accused’s former co-accused,
and the supporting factual basis, along with any related annexes, in addition to
the transcripts of the closed session portions of his
1437 Decision on the Defence Motion to Oppose Admission of an Expert Report Pursuant to
Rule 94bis, 12 December 2003.
1438 Decision on the Defence Motions to Oppose Admission of Prosecution Expert Reports
Pursuant to Rule 94bis, 1 April 2004.
1439 Decision II on the Admissibility of Certain Documents, 9 September 2004. 1440
Decision on the Admissibility of Certain Documents, 26 May 2004. 1441 Defence
Motion: Requesting Admission of Proposed Defence Exhibits into Evidence, 22 July 2004. 1442
Defence Submission: Requesting Admission of Outstanding Defence Exhibits Marked for
Identification into
Evidence, 26 July 2004. 1443 Decision II on the Admissibility of Certain Documents, 9
September 2004. 1444 Defence Motion: Pursuant to Rule 85(A)(iv), 6 August 2004 (“Defence
Motion”). 1445 Decision III on the Admissibility of Certain Documents, 10 September 2004. 1446
Defence Motion: Requesting Order from Trial Chamber Pursuant to Rule 54 and 54bis &
Confidential Annex,
2 April 2004. 1447 Scheduling Order for a Hearing Pursuant to Rule 54bis, 7 April 2004. 1448
Scheduling Order for a Hearing Pursuant to Rule 54bis, 7 April 2004.
Case No IT-01-42-T
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31 January 2005
sentencing hearing.1449 The Chamber referred the motion to Trial Chamber I,
which had delivered the sentencing judgement in the Jokić case, for
disposition.1450 The requested access was granted to the Defence by Trial
Chamber I on 23 March 2004.1451
5. Health of the Accused
510. The question of the fitness of the Accused to stand trial was raised for the
first time by the Defence during the pre-trial conference on 15 December 2003.
The following day, the Defence filed a motion for a medical examination of the
Accused. The Chamber, having examined a written report prepared at the
request of the Chamber and the medical records presented by the Defence,
found no justification for ordering any further examination, but left it open for the
Defence to pursue the issue further if necessary.1452 On 12February 2004, the
Defence submitted a confidential motion to terminate proceedings, relying on the
opinion of Professor Le~ić-To{evski and the Accused’s previous medical history.
On 17 February 2004, the Chamber, on the motion of the Prosecution, issued a
confidential order for a magnetic resonance imaging scan of the Accused to be
done.1453 On 22 March 2004, the Prosecution filed a medical report of the
Accused prepared by Drs B Blum, V Folnegović-[malc and D Matthews. On 1
April 2004, the Chamber ordered that there should be a limited opportunity for
each party to cross-examine on the medical reports relied on by the opposing
party. On 28 and 29 April 2004, evidence from Professor Le~ić-To{evski and Drs
Blum and Matthews was heard. Written submissions, supplemented on 6 May
2004 by brief oral submissions, were then filed.
511. A decision on the matter was issued on 26 May 2004. 1454 The Chamber
found that the Accused was fit to stand trial and the Defence motion was
dismissed. The request of the Defence for certification to appeal was denied on
17 June 2004.1455
6. Rule 98bis Decision
512. After the close of the Prosecution case, the Defence filed a motion seeking
entry of a judgement of acquittal pursuant to Rule 98bis in relation to all the
counts in the Third Amended Indictment. The Chamber found that there was not
sufficient evidence for a reasonable trier of fact
1449 Defence Motion Requesting the Acquisition of the Text of the Plea Agreement and the
Factual Basis Thereof Made between Admiral Miodrag Joki} and the Prosecution, 19 March 2004.
1450 Decision on Defence Motion Requesting Access to Miodrag Jokic's Plea Agreement and
Related Documents, 23 March 2004.
1451 Decision on Pavle Strugar’s Request for Variation of Protective Measures, 23 March 2004.
1452 Decision on the Defence Motion for a Medical Examination of the Accused Pursuant to
Rule 74bis of the Rules,
19 December 2003. 1453 Order for a Magnetic Resonance Imaging Scan of the Accused, 17
February 2004 (Confidential). 1454 Decision Re the Defence Motion to Terminate Proceedings,
26 May 2004. 1455 Decision on Defence Motion for Certification, 17 June 2004.
Case No IT-01-42-T
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31 January 2005
to sustain a conviction in respect of the allegation underlying Count 2 that Nikola
Jović had been subjected to cruel treatment, or in respect of the allegations of
damage to the buildings listed in Schedule II of the Indictment, other than those
listed in the Annex to the decision. In all other respects, the Defence motion was
denied.1456
7. Site visit
513. On 26 July 2004, the Prosecution filed a motion proposing that the
Chamber conduct a visit to Dubrovnik, and identifying sites for the Chamber to
view.1457 The Defence responded with a motion filed on 3 August 2004, where it
objected to some of the proposed sites, and presented its own list of sites. 1458
Between 1 and 4 September 2004, the Chamber undertook a site visit to
Dubrovnik in Croatia to view various locations relevant to the case. The parties
accompanied the Chamber and were given the opportunity to make observations
throughout. Subsequently, the notes and observations of the parties and the
Chamber were admitted into evidence, together with a record of the locations
viewed, a video-recording of aspects of the visit and two maps. 1459
1456 Decision on Defence Motion Requesting Judgement of Acquittal Pursuant to Rule 98bis, 21
June 2004. 1457 Prosecution’s Motion for the Trial Chamber to Conduct an On-Site Visit to
Dubrovnik, 26 July 2004 (partly
Confidential). 1458 Defence Response: Partly Confidential-Prosecution’s Motion for the Trial
Chamber to Conduct an On-Site Visit to
Dubrovnik, 3 August 2004. 1459 Decision on the Admission of Evidence, 11 October 2004.
Case No IT-01-42-T
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International Tribunal for the Prosecution of Persons Responsible for Serious

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