Case No. IT-01-42-T

IN TRIAL CHAMBER II

Before:
Judge Kevin Parker, Presiding
Judge Krister Thelin
Judge Christine Van Den Wyngaert

Registrar:
Mr. Hans Holthuis

Decision of:
21 June 2004

PROSECUTOR

v.

PAVLE STRUGAR

_____________________________________

DECISION ON DEFENCE MOTION REQUESTING JUDGEMENT OF ACQUITTAL PURSUANT TO RULE 98 BIS

_____________________________________

The Office of the Prosecutor:

Ms. Susan Somers
Mr. Phillip Weiner
Mr. David Re
Ms. Prashanthi Mahindaratne

Counsel for the Accused:

Mr. Goran Rodic
Mr. Vladimir Petrovic

    I. INTRODUCTION

  1. This decision of Trial Chamber II is in respect of the Defence motion of 28 May 2004, seeking the entry of a judgement of acquittal pursuant to Rule 98 bis of the Rules of Procedure and Evidence in relation to all the counts in the Third Amended Indictment.1 It is contended in respect of all counts that there is no case for the Defence to answer; i.e. that the evidence is insufficient to sustain a conviction.

  2. The Accused, Pavle Strugar, a retired General, is charged in the Indictment with crimes allegedly committed on 6 December 1991 in the course of a military campaign of the Yugoslav National Army (JNA) in and around Dubrovnik in October, November and December of 1991.

  3. The broader municipality of Dubrovnik extends for approximately 120 kms along the coast of southern Dalmatia in present-day Croatia.2 That part of Dubrovnik known as the Old Town is an area of some 13.38 hectares enclosed by the medieval city walls.3 The Old Town and its 1991 residents are the subjects of this Indictment. The Old Town is situated between the Adriatic sea on one side and steep slopes on the other, ascending to Mount Srdj, which is the dominant topographical feature overlooking the Old Town.4

  4. The Old Town of Dubrovnik is endowed with an exceptional architectural heritage, including palaces, churches and public buildings.5 The city first rose to prominence as a significant trading centre in the 13th century,6 and the oldest buildings in the Old Town date from this period.7 The fortifications of the Old Town, begun in the 12th century and completed in the mid -17th century, are widely regarded as some of the finest examples of city fortifications in Europe.8 Demilitarisation of this historic area was a precondition to the recognition of the Old Town as a World Heritage site by UNESCO in 1979.9

  5. 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.10 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.11

  6. The Indictment 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, three 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, 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 (2nd OG) and is premised on the following factual allegations. It was, inter alia, forces under the command of Captain Vladimir Kovacevic who conducted the unlawful artillery and mortar shelling of the Old Town on 6 December 1991.12 The battalion commanded by Captain Vladimir Kovacevic was at the time directly subordinated to the 9th VPS (Naval Sector), commanded by Vice-Admiral Miodrag Jokic, and the 9th  VPS, in turn, was a component of the 2nd Operational Group, commanded by the Accused.13

  7. While the Indictment is confined to the attack on the Old Town, the evidence indicates that the artillery attack 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.

  8. The Chamber observes that Miodrag Jokic 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 of imprisonment.14 The case against Vladimir Kovacevic, also indicted for the attack, is still pending.

  9. The trial against the Accused commenced on 16 December 2003. The Prosecution case, comprising 29 viva voce witnesses and over 200 exhibits, was concluded on 18 May 2004. Pursuant to the schedule set by the Trial Chamber, the Defence filed its motion for judgement of acquittal pursuant to Rule 98 bis of the Rules of Procedure and Evidence on 28 May 2004.15 The Prosecution’s response was filed on 7 June 2004.16 With permission of the Chamber, a Defence reply was filed on 14 June 2004.17

    II. APPLICABLE STANDARD UNDER RULE 98 BIS

  10. Pursuant to Rule 98bis (B) the Trial Chamber is to order an entry of judgement of acquittal on a charge “if it finds that the evidence is insufficient to sustain a conviction on that … charge(s).” The Rule reflects the common law concept of “no case to answer”. This is an issue raised and determined after the close of the prosecution case, but before the defence presents its case. It is an issue peculiar to an adversary system as the defence case is yet to be presented. A decision on a motion pursuant to Rule 98bis involves no evaluation of the guilt of the accused in light of all the evidence in the case to that stage, nor any evaluation of the respective credit of witnesses, or of the strengths and weaknesses of contradictory or different evidence, whether oral or documentary, which is then before the Chamber.

  11. As been held by the Appeals Chamber in Prosecutor v Jelisic18:

    The capacity of the prosecution evidence (if accepted) to sustain a conviction beyond reasonable doubt by a reasonable trier of fact is the key concept; thus the test is not whether the trier would in fact arrive at a conviction beyond reasonable doubt on the prosecution evidence (if accepted) but whether it could. At the close of the case for the prosecution, the Chamber may find that the prosecution evidence is sufficient to sustain a conviction beyond reasonable doubt and yet, even if no defence evidence is subsequently adduced, proceed to acquit at the end of the trial, if in its own view of the evidence, the prosecution has not in fact proved guilt beyond reasonable doubt” (emphasis added).19

    The issue is often shortly stated as NOT being whether, on the evidence as it stands the accused should be convicted, but whether the accused could be convicted.

  12. While the concept underlying Rule 98 bis derives from the common law, the Rule must be interpreted and applied in its own context and in light of the Statute. Differences may thus arise between the application of the concept in this Tribunal and in domestic common law jurisdictions.20 For example, the admissibility of hearsay evidence in this Tribunal provides a reason for such a difference.

  13. The jury system which is used extensively in most common law jurisdictions could provide another reason for such a difference, as, in this Tribunal, Trial Chambers comprise three judges sitting without a jury. It should not be overlooked, however, that in common law jurisdictions the issue arises in trials by jury and also in trials before a judge or other judicial officer sitting without a jury. The same principles are applied in each setting although, typically, these are expressed in the context of a trial by jury. This would appear to be the case because the fundamental concept is the right of an accused not to be called on to answer a charge unless there is credible evidence of his implication in the offence with which he is charged.

  14. While there is scope for differences of application of the concept between this Tribunal and a common law jurisdiction, leaving aside the effect of hearsay evidence, none appear to have been established in the jurisprudence of this Tribunal so far as that is relevant to this Motion.

  15. In England, a classic statement of the principles to be applied is found in the decision of the Court of Appeal, Criminal Division, given by Lord Lane CJ in Regina v Galbraith:21

    How then should the judge approach a submission of ‘no case’? (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the Crown’s evidence, taken at its highest, is such that a jury properly directed could not properly convict on it, it is his duty, on a submission being made, to stop the case. (b) Where however the Crown’s evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury. (emphasis added).

    In reaching this decision there was an express acceptance of earlier words of Lord Widgery CJ in Regina v Barker:22

    […] even if the judge had taken the view that the evidence could not support a conviction because of the inconsistencies, he should nevertheless have left the matter to the jury. It cannot be too clearly stated that the judge’s obligation to stop the case is an obligation which is concerned primarily with those cases where the necessary minimum evidence to establish the facts of the crime has not been called. It is not the judge’s job to weigh the evidence, decide who is telling the truth, and to stop the case merely because he thinks the witness is lying. To do that is to usurp the function of the jury […] (emphasis added).

    It is in this sense that it was said by the High Court of Australia in Doney  v The Queen:23

    It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.

  16. Of course, as the decision in Jelisic notes, the issue whether a Trial Chamber (or a jury) properly directed could convict, in the sense dealt with in the Galbraith, Barker and Doney decisions, involves proof beyond reasonable doubt. At the stage of a Rule 98bis motion, however, the issue is not whether the Trial Chamber would be persuaded beyond reasonable doubt to convict, after fully evaluating the evidence then before it, but rather, and quite differently, whether it would be properly open to a Trial Chamber, taking the evidence at its highest for the prosecution, to be persuaded beyond reasonable doubt to convict the accused.

  17. Rarely, a case will arise where the only evidence in support of a conviction is so inherently incredible that no Trial Chamber could accept its truth. In such a case, of course, in truth the evidence is incapable of supporting a conviction, and a Rule 98 bis motion should succeed. This possibility was recognised by the Appeals Chamber in the Jelisic decision when it observed that in considering a Rule 98 bis motion “[…] the Trial Chamber was required to assume that the prosecution’s evidence was entitled to credence unless incapable of belief ” (emphasis added).24 In this sense, the Appeals Chamber went on to state that a Rule 98 bis motion should only be upheld if the Trial Chamber is “entitled to conclude that no reasonable trier of fact could find the evidence sufficient to sustain a conviction beyond reasonable doubt […]”.25

  18. It follows that a decision by this Trial Chamber that there is sufficient evidence to sustain a conviction of the Accused on one of the charges is, in no sense, an indication of the view of the Chamber as to the guilt of the Accused on that charge. That is not the issue to be decided at this point. A decision that there is a case to answer in respect of a charge involves no more than an appreciation by this Trial Chamber that there is in the case some evidence which, when taken at its highest for the prosecution, could be sufficient to satisfy a Trial Chamber i.e. is capable of persuading a Trial Chamber of the guilt of the Accused of the charge being considered. If there is no evidence of an offence charged, or if, in what is likely to be a somewhat unusual case, the only relevant evidence when viewed as a whole is so incapable of belief that it could not properly support a conviction, even when taken at its highest for the Prosecution, a Rule  98bis motion for an acquittal will succeed.

  19. In the course of this decision, the Trial Chamber will evaluate in respect of each disputed element of each offence charged, whether there is evidence on which a Trial Chamber could be satisfied beyond reasonable doubt of the guilt of the Accused, as discussed in the preceding paragraphs. However, for brevity and convenience, the Chamber will often use different language or be more succinct in expressing its conclusion that there is sufficient evidence.

  20. It is worth noting the extent and frequency to which Rule 98bis has come to be relied on in proceedings before this Tribunal, and the prevailing tendency for Rule 98bis motions to involve much delay, lengthy submissions, and therefore an extensive analysis of evidentiary issues in decisions. This appears to be in contrast to the position typically found in common law jurisdictions from which the procedure is derived. While Rule 98bis is an important procedural safeguard, the object and proper operation of the Rule should not be lost sight of. Its essential function is to separate out and bring to an end only those proceedings in respect of a charge for which there is no evidence on which a Chamber could convict, rather than to terminate prematurely cases where the evidence is merely weak.

    III. ISSUES RAISED FOR DISMISSAL

  21. The Chamber will essentially limit its consideration to the particular issues raised by the Defence in support of its Motion. Where no issue has been raised the Chamber will usually either say nothing about the issue or make only a brief observation in passing.

    A. Preliminary matters

    1. The attack on the Old Town

  22. The alleged unlawful attack on the Old Town of Dubrovnik on 6 December 1991 underpins all the charges in the Indictment. In order to place the crimes in their proper context, the Chamber first turns to consider the allegations in the Indictment relating to the attack and those who are alleged to have participated directly in it. It should be borne in mind that as the Accused is charged, inter alia, with indirect criminal liability under Article 7(3), the acts, mens rea and position of the alleged principal perpetrators are directly relevant to an appropriate assessment of whether there is evidence which could establish the Accused’s criminal liability.

  23. In this context, the Chamber is of the view that there is evidence to support the allegations that the Old Town was shelled on 6 December 199126 and that forces under the immediate command of Captain Vladimir Kovacevic were responsible, at least substantially so, if not solely.27

    2. General requirements for the application of Article 3 of the Statute

  24. The Trial Chamber recalls that all the crimes contained in the Indictment are charged under Article 3 of the Statute of this Tribunal. For a crime under Article 3 of the Statute to be proved, two preliminary requirements must be satisfied. First, there must have been an armed conflict, whether internal or international in character, at the time the offences were allegedly committed.28 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.29 The Prosecution alleges that at all times relevant to the Indictment a state of armed conflict existed in Croatia and there is a nexus between the alleged crimes and that armed conflict.30

  25. The Trial Chamber notes that a number of witnesses31 referred in their testimony to a “conflict”32, “hostilities”33 or “war”34 between the Croatian forces and the JNA in respect of Dubrovnik in the relevant period. There is also an abundance of other evidence from which it could be inferred or directly accepted that an armed conflict existed.35 The Trial Chamber further notes that all the offences alleged in the Indictment relate to the shelling of the Old Town of Dubrovnik, which was allegedly carried out in the course of and in close relation to the aforementioned armed conflict. On the basis of this evidence a Trial Chamber could conclude that the acts with which the Accused is charged were committed during an armed conflict and were closely related to that conflict.

    3. Nature of the conflict

  26. The Trial Chamber notes that the Defence has not challenged the part of the Indictment relating to the general requirements for the application of Article 3 of the Statute. The Prosecution, however, in their Response to the Defence Motion provided submissions in respect of the nature of the conflict at issue.36

  27. In the Indictment the Prosecution alleges that an international armed conflict and partial occupation existed in Croatia.37 In opening the Prosecution case, it was submitted that “the offences alleged in the Indictment, however, have a sound legal foundation irrespective of the date of Croatian independence and irrespective of the classification of this conflict”.38 The Trial Chamber observes that Article 3 of the Statute, on which the charges are based, is applicable to all armed conflicts irrespective of their nature.39 In addition, the provisions to which the Prosecution refers in the Indictment apply to both international and internal conflicts.40

  28. For these reasons, the Trial Chamber sees no need in this decision to consider whether the conflict was of an international nature.

    4. Mens rea

  29. Apart from an attack for which the Accused may be directly liable, insofar as he is charged under Article 7(3) for the acts of his subordinates, or where he is charged with a form of accomplice liability, such as aiding and abetting, in order for the Accused to incur liability it must be shown that the direct perpetrator (i.e. in the case of Article 7(3) a subordinate, in the case of aiding and abetting, the principal perpetrator) committed a crime. For these purposes it is sufficient to show that the direct perpetrator had the requisite mens rea to commit the crime.

  30. Having dealt with these preliminary matters, the Chamber now turns to consider in more detail questions raised in the Defence Motion. The following sections III.B and III.C will only address the question whether there is evidence to support the crimes charged in the six Counts. Issues relating to the responsibility of the Accused are dealt with in Section III.D of this decision.

    B. Crimes Against Persons – Violations of the Laws or Customs of War

    1. Murder (Count 1)

    (a) The Law

  31. 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 identified in the Indictment as Pavo Urban and Tonci Skocko.41

  32. The definition of murder as a violation of the laws or customs of war under Article 3 of the Statute is broadly settled 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 to cause serious bodily harm in the reasonable knowledge that it would likely result in death.42 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.43

    (b) Submissions

  33. The Defence submits that there is no evidence that the Accused either caused anyone’s death or intended to commit murder,44 and therefore, presumably, that the count of murder against the Accused should fail. It is also an issue whether the deceased have been shown to be civilians.

  34. The Prosecution submits there is evidence to support the charge of murder. It identifies specific evidence supporting the fact that both Pavo Urban and Tonci Skocko were killed in the Old Town by the shelling on 6 December 1991.45 It further submits that in case of doubt as to whether an individual is properly characterised as a civilian or not, that person shall be considered a civilian.46 The Prosecution submits that the evidence is capable of supporting a finding that both men were civilians at the time of their death.47

    (c) Discussion

  35. There is evidence that Pavo Urban and Tonci Skocko both died as a result of the attack on the Old Town of Dubrovnik on 6 December 1991.48 In particular, Dr. Ciganovic, the forensic pathologist who carried out the post- mortem examinations of both Pavo Urban and Tonci Skocko,49 testified that he had concluded that both victims had died as a result of injuries caused by an explosive device.50 The civilian status of the victims was also supported by evidence.51

  36. For the purposes of Rule 98 bis, the direct perpetrators’ intent, either to kill or to cause serious bodily harm, may be proved by inference from evidence of the intentional nature of the attack on the civilian population of the Old Town.52 Evidence relating to the mens rea of the Accused for this crime, to the extent that it is relevant to a consideration of his criminal liability therefor, is dealt with in Section III.D of this decision.

    (d) Conclusion

  37. On the basis of the foregoing, the Chamber is of the view that there is evidence on which a Trial Chamber could conclude that the charge of murder was established in relation to the two victims identified in the Indictment.

    2. Cruel treatment (Count 2)

    (a) The Law

  38. 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 identified in the Indictment as Mato Valjalo, Nikola Jovic and Ivo Vlasica.53

  39. 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 human dignity.54 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.55

    (b) Submissions

  40. The Defence submits that there is no evidence that the Accused either subjected anyone to cruel treatment or intended to inflict serious injury.56 The Defence relies upon the definition of the crime of cruel treatment set forth in the Celebici Trial Judgement, namely “an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, which causes serious mental or physical injury or constitutes a serious attack on human dignity.” The Defence argues that there is no evidence that the Accused intentionally participated in the crime of cruel treatment.57

  41. In relation to Mato Valjalo, the Defence submits that he was not a civilian at the time he was injured, and that he cannot be considered to have been a civilian at the time of his injury as he was acting as the chauffeur for the President of Dubrovnik’s Crisis Staff in his fulfilment of various wartime assignments. It submits that this activity amounts to taking an “active part in hostilities”. 58 As regards Ivo Vlasica, the Defence submits that the evidence about his injury is so inconsistent and contradictory that it cannot form a reliable basis for establishing the nature of his injury.59 The Defence submits that Nikola Jovic’s injury does not rise to the level of seriousness required by the Statute for a crime to fall within the jurisdiction of the Tribunal.60

  42. The Prosecution submits that there is evidence to support the charge of cruel treatment in relation to each of the listed victims.61 It further submits that Mato Valjalo, Ivo Vlasica and Nikola Jovic may appropriately be characterised as civilians on 6 December 1991 and that they did not take an active part in the hostilities that day.62

    (c) Discussion

  43. There is evidence that on 6 December 1991 Mato Valjalo was seriously injured when a shell exploded on Stradun.63 In relation to the Defence submission that Mr. Valjalo was not a civilian at the time of his injury, the Chamber reiterates that for the purposes of Rule 98 bis it is sufficient if there is some evidence capable of establishing the allegation that he was a civilian. The fact that there may be other evidence which tends to contradict that conclusion is a matter for consideration at the end of the trial. In this regard, the Chamber is satisfied that there is evidence that could support a conclusion that at the time Mr. Valjalo was a civilian.64

  44. Similarly, there is evidence that on 6 December 1991 Ivo Vlasica was seriously injured in front of his shop in the Old Town when a shell detonated nearby.65 The Chamber does not agree with the submission of the Defence that the evidence of Mr. Vlasica’s injury is so unreliable as to require the Chamber to disregard it at this stage. The Chamber is satisfied that there is evidence that could support a finding that Mr. Vlasica was a civilian when he was injured on 6 December 1991.66

  45. In relation to Nikola Jovic only, the Defence has raised the question whether the injuries he sustained are serious enough to rise to the level of a crime within the jurisdiction of the Tribunal. The query has two parts: first, whether the injuries Mr. Jovic described are capable of amounting to the crime of cruel treatment, and secondly, if that crime can be established on the evidence, whether the Tribunal has jurisdiction under Article 1 of the Statute to deal with such a violation.

  46. As to the first part, the Chamber recalls the case law of the Tribunal establishing that, in relation to the crime of outrages against personal dignity the element of humiliation or degradation should be assessed on an objective, rather than a subjective basis.67 The Chamber is persuaded that the situation is the same in relation to the crime of cruel treatment. The Chamber is of the opinion that the evidence reveals Nikola Jovic’s injuries to have been minor, indeed he himself characterised them as “surface wounds”.68 Even when these injuries are considered together with the mental anguish occasioned by the death of his friend Tonci Skocko, the evidence is not capable of establishing the element of serious mental or physical suffering or injury for the crime of cruel treatment. Accordingly, there is no need to consider whether the jurisdictional requirements of the Statute are met in this case.

  47. For the purposes of Rule 98 bis, the Chamber is of the view that a reasonable trial chamber could conclude that the direct perpetrators’ intent for the crime of cruel treatment may be proved by inference from evidence of the intentional nature of the attack on the civilian population of the Old Town.69 Evidence relating to the mens rea of the Accused for this crime, to the extent that it is relevant to a consideration of his criminal liability therefor, is dealt with in Section III.D of this decision.

    (d) Conclusion

  48. On the basis of the foregoing, the Chamber is of the opinion that there is evidence on which a Trial Chamber could conclude that the charge of cruel treatment was established in relation to two of the victims identified in the Indictment.

    3. Attacks on civilians (Count 3)

    (a) The Law

  49. The Accused is charged with participation in the crime of attacks on civilians, a violation of the laws or customs of war, as recognised by Article 51 of Additional Protocol I and Article 13 of Additional Protocol II. The Prosecution alleges that, even assuming that military objectives were present in the Old Town, in any event, civilian losses in human lives and property caused by the attack were excessive in relation to the concrete and direct military advantage anticipated.70

  50. Pursuant to the Tribunal’s case-law, the crime of attacks on civilians is, as to the actus reus, an attack launched against a civilian population that caused deaths and/or serious bodily injury within that population,71 which, as to the mens rea, must have been conducted “intentionally in the knowledge, or when it was impossible not to know, that civilians were being targeted ”.72 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”.73 The following attacks are, among others, prohibited by Article 51: attacks the object of which is “the civilian population as such, as well as individual civilians” (§ 2); indiscriminate attacks, such as those which “are of a nature to strike military objectives and civilians or civilian objects without distinction” (§ 4) and those 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” (§ 5 (b)).

    (b) Submissions

  51. The Defence submits that there is no evidence that the Accused committed any acts of attack on civilians.74 It further states that the town of Dubrovnik was used for military purposes which rendered it a military target. In particular, it is submitted, the Crisis Staff, which allegedly controlled the activities of the Croatian defence,75 was located in the Old Town and mortar positions were located from 100 to 130 metres from the Old Town.76

  52. The Prosecution refers to evidence relating to the use of the Municipal Assembly Building located in the Old Town by the Crisis Staff and, relying on the presumption of civilian status provided for by Additional Protocol 1, submits that this fact does not convert the building at issue into a military objective.77 The Prosecution refers to the evidence showing that the vast majority of the projectiles were aimed at the Old Town and not at nearby military objectives, if such existed.78 It further submits that, even assuming that there were military objectives in the Old Town, in any event, directing artillery fire into the Old Town in the circumstances would violate the proportionality principle.79

    (c) Discussion

  53. As regards the particular elements of the crime of attacks on civilians, there is much evidence that on 6 December 1991 the Old Town of Dubrovnik was shelled.80 As has been indicated, on the basis of this evidence, a Trial Chamber could conclude that there was an attack.

  54. The evidence relating to deaths and/or injury resulting from the attack has been analysed above in connection with the charges of murder and cruel treatment.81

  55. As regards the nature of the population at issue, there is a considerable body of evidence that no troops or soldiers were present within the Old Town in the relevant period of time82 or that, even if present, their numbers were very small.83 The Trial Chamber is of the view that on the evidence a Trial Chamber could conclude that, even if there were some non-civilians in the Old Town, their number was not such as to deprive the Old Town of its “predominantly civilian” character.

  56. The Defence has referred the Chamber to evidence which, in its view, demonstrates that the Old Town and its immediate vicinity were used for military purposes.84 Acknowledging the existence of this, the Trial Chamber is of the view that this evidence is not sufficient to preclude a reasonable trier of fact making a finding as to the “predominantly civilian” character of the population in the Old Town.

  57. The Trial Chamber recalls the above case-law to the effect that the crime of attacks on civilians concerns attacks launched intentionally in the knowledge, or when it was impossible not to know, that civilians were the object of the attack and observes that evidence to this effect has been presented. 85 This Chamber is of the view that on this evidence a Trial Chamber could make such findings.

  58. Nonetheless, even assuming that the evidence before the Chamber indicates that there were military objectives in or in the immediate vicinity of the Old Town, there is evidence capable of establishing that the shelling was carried out with no distinction between military and other objectives86, as well as evidence in support of the alternative allegation of launching a disproportionate attack, as defined above. In light of the evidence concerning the loss of civilian life and injury to civilians, on the one hand, and the evidence relating to the issue of military objectives within the Old Town on the other, the Trial Chamber considers that there is evidence on which a Trial Chamber could conclude that there was an excessive attack in the relevant sense.

    (d) Conclusion

  59. In the view of the Chamber, there is sufficient evidence on which a Trial Chamber could conclude that the charge of attacks on civilians has been established.

    C. Crimes Against Property – Violations of the Laws or Customs of War (Counts 4-6)

    1. The Law

  60. The Indictment charges the Accused with criminal liability for the following violations of the laws or customs of war: devastation not justified by military necessity (Count 4), unlawful attacks on civilian objects (Count 5), and 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 (hereinafter “Cultural Property”) (Count 6), punishable under Article 3 of the Statute. The elements of these crimes have been elaborated, to a certain extent, in the jurisprudence of the Tribunal and are, in part, overlapping. For this reason, the Chamber deems it sufficient to discuss the elements of these crimes jointly in one section of this decision. The Chamber does not find it necessary, at this stage, to discuss the law in detail relating to these crimes, since the Chamber can reach its findings for the purposes of Rule 98 bis based on the existing jurisprudence.87

  61. As regards Count 4, punishable under Article 3 (b) of the Statute, the Chamber observes that the definition of devastation not justified by military necessity has been considered by the Trial Chamber in Kordic, where it was held that the elements of this crime are satisfied if: “(i) the destruction of property occurs on a large scale; (ii) the destruction is not justified by military necessity; and (iii) the perpetrator acted with the intent to destroy the property in question or in reckless disregard of the likelihood of its destruction.”88

  62. Regarding Count 5,89 the Chamber observes that civilian objects enjoy a similar level of protection as a civilian population.90 Article 52 of the Additional Protocol I stipulates that “[c]ivilian objects shall not be the object of attack or of reprisals” and “civilian objects are all objects which are not military objectives”.91 “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 neutralisation, in the circumstances ruling at the time, offers a definite military advantage.”92 In case of doubt as to whether an object is used for civilian or military purposes, this object shall be presumed not to be used for military purposes.93

  63. The jurisprudence of the Tribunal identifies the following elements of this crime: actus reus – an attack launched against civilian objects94 and causing damage95 to those objects ; mens rea – “an attack must have been conducted intentionally in the knowledge, or when it was impossible not to know, that […] civilian property [was] being targeted”96

  64. In relation to Count 6, punishable under Article 3 (d) of the Statute, it has been held by this Tribunal that the elements of this crime are satisfied if: (i) the damage or destruction has been committed to institutions which may clearly be identified or regarded as dedicated to religion;97 (ii) the property was not used for military purposes98 at the time of the acts and must not have been in the immediate vicinity of military objectives99; and (iii) “the perpetrator acted with the intent to destroy the property”.100

    2. Submissions

  65. In relation to all three counts, the Defence submits that “there is no evidence that the Accused has participated in devastation not justified by military necessity, unlawful attacks on civilian objects or [d]estruction or wilful damage done to [Cultural Property]”.101

  66. In respect to Count 4, the Defence submits that the mens rea element of the crime is that “the Accused acted with intention to destroy property or showed gross negligence as to the possibility that the same will be destroyed”.102 It subsequently claims that “[t]here is no evidence which could show that an element of wilful intent existed on the part of the Accused to commit the described crime”103.

  67. With regard to Count 5, the Defence submits that no evidence exists to support the count of unlawful attacks on civilian objects for the same reasons as presented for Count 4.104

  68. In relation to Count 6, the Defence submits that “protection is lost in cases where cultural heritage is used for military purposes.105 It further states that “[t]he fact that the Old Town and its immediate vicinity were used for military purposes means that the Old Town lost its protection envisaged by the United Nations Educational, Scientific and Cultural Organization.”106 It claims that the Old Town and the immediate vicinity thereof, was used by various Croatian armed forces both before and on 6 December 1991 for military purposes, “whereby protected objects become legitimate military targets”.107

  69. Furthermore, the Defence submits that no evidence was presented on which one could distinguish damage to property on 6 December 1991 from what had happened before and after the said time.108 In relation to Schedule II to the Indictment, the Defence claims that there is no evidence that damage occurred to 361 buildings and structures out of the 450 buildings or structures listed in Schedule II.109

  70. With regard to these three counts of the Indictment the Prosecution made a single submission. The Prosecution has not made submissions on the Accused’s mens rea separately for each of the three counts.110 The Prosecution submits that “[e]ach structure or building within the Old Town is accorded protection” as an “historic monument” falling under the definition of Article 3 (d) of the Statute and as “a civilian object […] under Article 52 of Additional Protocol I”. It further submits that “[e]ach object was damaged as a result of the JNA’s unlawful attack on the Old Town on 6 December 1991.”111

  71. The Prosecution’s submission in relation to the Defence claim that the Old Town was used for military purposes, has been already discussed in relation to Count 3.112 Additionally, the Prosecution suggests that damage to the Old Town, a UNESCO World Cultural Heritage Site, “should weigh more heavily in the proportionality equation than damage to other similar civilian objects”.113 The Prosecution acknowledges that “a number of buildings listed in Schedule II were also damaged by shelling in either October or November 1991”. However, it submits that there is evidence enabling the Chamber “to distinguish between the earlier and later damage ”.114 Finally, the Prosecution submits that it has adduced evidence “of the total destruction of the six buildings [mentioned] in paragraph 23 of the [Indictment]”115 and “direct evidence of damage to 145 of the objects and structures listed [in Schedule II]”116.

    3. Discussion

  72. Initially, the Chamber notes that, apart from the six buildings mentioned in paragraph 23 of the Indictment, in their submissions the Parties have exclusively referred to buildings and structures listed in Schedule II, annexed to the Indictment. However, the Indictment as it stands in this part is not limited to this listing.117 The Chamber has not interpreted the silence on the part of the Prosecution as a change in this respect and will in its assessment also deal with buildings and structures not listed in Schedule II when otherwise directly identifiable.

  73. As discussed above,118 on the basis of the Prosecution evidence, a Trial Chamber could be satisfied that there was an attack on the Old Town of Dubrovnik on 6 December 1991.

  74. The Chamber accepts that there is sufficient evidence, for the purposes of this Rule 98 bis decision, that substantial damage occurred to some buildings and structures during the attack on 6 December 1991.119 The Chamber accepts that some of the buildings and structures, which could be found to have been damaged on 6 December 1991, had already sustained some degree of damage from earlier shelling in October and November, but nevertheless retains them for the purposes of the Rule 98 bis decision, leaving the final evaluation of this matter for a later stage.

  75. Both Parties agree that there is no evidence in relation to 302 of the 450 buildings and structures listed in Schedule II. The Chamber accepts this and therefore dismisses them on this basis.120 As for the remaining 148 buildings and structures listed in Schedule II, the Defence has not raised any objections in relation to 89 of these.121 Therefore, the Chamber retains these 89 buildings and structures for the purposes of this Rule 98 bis decision as the subject of evidence of damage on 6 December 1991. In relation to the balance of the 59 buildings and structures which are contested by the Defence, the Chamber’s findings, made only for the purposes of this Rule 98 bis decision, are included in an Annex attached to this decision.122

  76. Annex Part A lists 96 buildings and structures, which the Chamber was able to identify in Schedule II and for which there is evidence capable of establishing that those buildings and structures were damaged during the attack on 6 December 1991. The sum of 96 includes the 89 uncontested buildings and structures and 7 of the contested 59. Further, the Chamber finds that there is evidence capable of establishing that 6 buildings in this list were completely burnt down.123

  77. In addition to those 96 buildings and structures, the Chamber finds that there is sufficient evidence, for the purposes of Rule 98 bis, in respect of another 20 identified buildings and structures as having been damaged on 6 December 1991 in the attack. The Chamber lists them in Annex Part B. There is evidence capable of establishing that these 20 buildings and structures are located in the Old Town but, on the evidence, they cannot be readily identified in Schedule II. They are retained for the purposes of this Rule 98 bis decision.124 There is evidence that among the buildings destroyed were residential blocks, public places and shops, which entailed grave consequences for the residents or the owners, i.e. their homes and businesses were destroyed.125

  78. In its decision to dismiss 52126 buildings and structures of the 59 contested by the Defence, the Chamber, for the purposes of this Rule 98 bis decision, is persuaded that the Prosecution evidence is not sufficient because those dismissed buildings and structures are either (i) not mentioned in the evidence; or (ii) cannot be identified from the evidence; or (iii) while mentioned in the evidence no damage is identified; or ( iv) confused with other object(s) or double listed.

  79. Regarding the element of the civilian nature of the targets and the question of military necessity which have been discussed above, the Prosecution has provided sufficient evidence, as has been indicated earlier, for the purposes of Rule 98 bis as to the Old Town’s “predominantly civilian” character. On this basis a Trial Chamber could conclude that the destruction of property in the Old Town was not justified by military necessity.127 Moreover, there is no evidence to suggest that any of the, in total, 116 buildings and structures identified by the Chamber, for the purposes of Rule 98 bis, as having been damaged on 6 December 1991, were used for military purposes or served as military objectives.

  80. In relation to Count 6 specifically, the Chamber observes that there is evidence that the Old Town of Dubrovnik in its entirety was entered onto the World Heritage List in 1979 upon the nomination of the SFRY.128 The properties inscribed on the World Heritage List are those cultural and natural properties deemed to be of outstanding universal value from the point of view of history, art or science.129 Therefore, the Chamber is of the view that on the evidence property within the Old Town could be found to be within the scope of the phrase “institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science” under Article 3(d) of the Statute. Thus, a reasonable trier of fact could conclude that the attack launched by the JNA forces against the Old Town on 6 December 1991, was an attack directed against Cultural Property within the meaning of Article 3(d) of the Statute. The Trial Chamber also observes that among those buildings, which for the purposes of Rule 98 bis have been found to be the subject of evidence as to damage in the attack, were monasteries, churches, a mosque and palaces.130

  81. In relation to Count 4, the Trial Chamber is of the view that for the purposes of Rule 98 bis, the direct perpetrators’ intent to destroy property or to act in reckless disregard of the likelihood of its destruction could be inferred by a Trial Chamber from the evidence that could support findings that the attack on the Old Town was launched intentionally, and that the direct perpetrators were aware of the civilian or predominantly civilian character of the Old Town.131 For Count 5, the direct perpetrators’ intent to deliberately attack civilian objects in the knowledge, or when it was impossible not to know, that civilian property was being targeted, can be inferred on the same basis. Similarly, for Count 6, the direct perpetrators’ intent to deliberately destroy cultural property could be inferred by a Trial Chamber from the evidence capable of establishing that : the attack on the Old Town was launched intentionally;132 the unique cultural and historical character of which was a matter of renown; the Old Town was a UNESCO World Cultural Heritage Protected Site;133 and protective UNESCO emblems were visible from the JNA positions at Zarkovica above the Old Town on 6 December 1991.134

  82. The Chamber reiterates that the issues relating to the responsibility of the Accused for these crimes are dealt with in Section III.D of this Decision.

    4. Conclusion

  83. On the basis of the foregoing, the Chamber is of the opinion that there is evidence on which a Trial Chamber could conclude that the allegations of damage in Counts 4, 5 and 6 of the Indictment were established in relation to 96 buildings and structures, remaining from the original list of 450 in Schedule II to the Indictment, including the six buildings mentioned in paragraph 23 of the Indictment, and an additional 20 buildings and structures which are otherwise within the scope of the Indictment.

    D. The Accused’s Individual Criminal Liability under Article 7 of the Statute

  84. The Indictment alleges that the Accused bears direct criminal responsibility under Article 7(1) of the Statute for having ordered and aided and abetted the crimes set out in Counts 1 to 6. It further alleges that on all counts, he bears criminal responsibility under Article 7(3) as a commander of the JNA forces who committed the alleged crimes.

    1. Ordering

  85. This form of liability requires that an accused possessed the authority to order the commission of a crime. A formal superior-subordinate relationship between the person giving the order and the one executing it is not a requirement in itself, nor is it that the order be given in writing, or in any particular form, or directly to the individual executing it.135 The existence of an order may be proven through direct or circumstantial evidence.136 With regard to the requisite mens rea, it must be established that the accused intended the crime to be committed or was aware of the substantial likelihood that the commission of the crime would be a consequence of his acts.137

  86. With respect to the legal definition of this form of liability, the Defence submits that it must also be established that the person who has committed the crime “did so while acting in accordance with a plan or order”.138 The jurisprudence of the Tribunal does not provide a clear answer whether the proof of a causal link between the order and the commission of the crime is required. However, with respect to an analogous form of responsibility, namely instigation, the jurisprudence of the Tribunal has established that a causal link between the act of instigation and the physical perpetration of a crime needs to be demonstrated as part of the actus reus. This link, however, need not be such as to show that the offence would not have been perpetrated without the participation of the instigator.139 For present purposes, without reaching a final decision on these matters, the Chamber will proceed on the basis that the form of liability described as “ordering” is closely associated with that of “instigating”, subject to the additional requirement that the person ordering the commission of a crime have authority over the person physically perpetrating the offence. Hence, the Trial Chamber will proceed on the basis that, with respect to “ordering”, a causal link between the order and the commission of the offence must be shown. Thus, in the present case, for the allegations that the Accused ordered the crimes charged under Counts 1 to 6 to remain, there must be evidence capable of establishing that an order of the Accused contributed in fact to the commission of the crime.

  87. The Defence submits that there is no evidence that the Accused ordered the unlawful artillery shelling of Dubrovnik on 6 December 1991. It also submits that there is no evidence of the Accused’s intent to commit the alleged crimes.140 It further argues that, to the contrary, the Accused issued direct orders forbidding attacks against the Old Town of Dubrovnik and took special measures to secure its protection.141 Finally, it maintains that the evidence of Prosecution witness Colm Doyle is inconclusive, and that the Prosecution pre-trial brief does not provide any information in support of the Prosecution’s case for engaging the Accused’s responsibility for ordering.142

  88. The Prosecution responds, in particular, that it has adduced circumstantial evidence that the Accused “indirectly or implicitly” ordered the unlawful attack on the Old Town.143 It refers to the evidence that a battalion commander would not initiate combat activities without authorisation from his superior, that Vladimir Kovacevic visited the command of the 2nd Operational Group on the evening of 5 December 1991 and that the same day he spent several hours preparing for the attack.144 Further, it refers to the evidence on the failure of three senior officers to stop the attack,145 on the Accused’s subsequent apparent endorsement of Vladimir Kovacevic’s version of the events of 6 December  1991,146 the absence of disciplinary action against Vladimir Kovacevic and his promotion. By virtue of these events, it submits it should be implied that Vladimir Kovacevic was acting under orders from the Accused. The Defence replies that the Prosecution evidence regarding “ ordering” is based solely on a misinterpretation of the circumstantial evidence.

  89. The Trial Chamber is satisfied that there is some evidence upon which a Trial Chamber could find the Accused responsible for ordering the unlawful shelling of the Old Town on 6 December 1991. Apart from the circumstantial evidence, the witness, Colm Doyle, testified that he met the Accused on 6 December 1991, shortly after 12.00 noon, in the outskirts of Trebinje.147 The evidence was that, in the course of the meeting, the Accused explained to Colm Doyle through an interpreter that he was angry because paramilitaries in the territory of Bosnia and Herzegovina had attacked some of the troops under his command, that this was something he would not tolerate, and that he had responded by firing on the city of Dubrovnik.148 This evidence may properly be understood by a Trial Chamber as an admission by the Accused that on 6 December 1991 there has been firing on the city of Dubrovnik by troops under his command,149 which occurred as the Accused’s deliberate response to conduct of opposing forces in Bosnia and Herzegovina. Although the Accused did not specify particularly the Old Town, the reference to the city of Dubrovnik is capable of being understood as a reference including the Old Town, which is consistent with the actual attack. There is, of course, much reason in the evidence to approach the evidence of this meeting and the Accused’s words with caution, but it is apparently credible evidence, which a Trial Chamber might well accept and act on. That being so, this evidence alone is sufficient to preclude the acceptance of the Defence Motion in this respect.

  90. There is also other evidence upon which relevant findings by inference could be made by a Trial Chamber. This includes evidence that on the eve of the 6 December 1991 attack, Vladimir Kovacevic went to the post of the command of the 2nd Operational Group, and did so without the knowledge of his immediate superior Admiral Jokic,150 that the attack involved planning and could not be characterised as spontaneous,151 and that more than one unit participated in the shelling of 6 December 1991152 which implies a degree of coordination as would be associated with an order from higher command. While the Accused relies on an order for a cease-fire issued on 5 December 1991, there is evidence that this order was only to take effect at 12.00 noon on 6 December 1991,153 whereas the attack was launched well before that time. A Trial Chamber in considering the inferences to be drawn from this evidence might also have regard to the evidence which could support a finding that the Accused had taken no disciplinary action following earlier attacks on the Old Town in October and November by forces under his command, and evidence from which it could be found that without military justification, he had kept the 3rd Battalion of the 472nd Motorised Brigade in the position from which that unit attacked the Old Town on 6 December, as noted later in this decision.154 In view of the above, the Trial Chamber is satisfied that there is also circumstantial evidence capable of persuading a Trial Chamber that the Accused ordered the attack of 6 December 1991. If a Trial Chamber found that the Accused ordered the attack, it would also be open to that Chamber to infer the necessary intent because of the obvious risk to life and property of an artillery attack on an inhabited city.

    2. Aiding and Abetting

  91. Aiding and abetting has been defined in the case-law of the Tribunal as the act of rendering a substantial contribution to the commission of a crime, whether in the form of practical assistance, encouragement or moral support,155 before, during or after the commission of the crime.156 It is not necessary to establish a cause and effect relationship between the contribution and the commission of the crime.157 Regarding the requisite mens rea, it must be established that the aider and abetter was aware that his acts were assisting in the commission of the crime by the principal.158 While the aider and abetter 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.159

  92. Without turning to the detailed submissions, it can be said at once that the evidence in this case, which has just been identified, on which a reasonable Tribunal could conclude that the Accused ordered the attack on 6 December 1991, is also capable in the circumstances of the case, of supporting a finding by a Trial Chamber that the Accused aided and abetted the charged offences committed in the course of the attack. The submissions of the Defence to the contrary are founded essentially on the premise that the evidence cannot support a finding that the Accused ordered the attack.

    3. Command responsibility

  93. In order to invoke criminal responsibility under Article 7(3) of the Statute, three elements must be satisfied.160 First, the existence of a de jure or de facto superior-subordinate relationship must be established.161 Such relationship presupposes that the superior has effective control over the offenders, otherwise described as the material ability to prevent or punish the alleged offences.162 Secondly, the superior must have known or had reason to know that the criminal act was about to be or had been committed. This may be established through proof that the superior had actual knowledge that his subordinates were about to or had committed the alleged offences or that he had in his possession information of such a nature as to put him on notice of such risk.163 Thirdly, it must be established that the superior failed to take the necessary and reasonable measures within his capacity to prevent the criminal act or punish the perpetrator thereof.164

  94. The Defence submits that “the Prosecution has not provided a single piece of evidence in relation to the ambit of the Accused’s authority”165 and that, in particular, “[t]here is no evidence whatsoever that the Accused is responsible in terms of Article 7(3) with regard to the allegation that the forces who were under his command committed the acts described in Counts 1 to 6 of the Indictment”166 as “they continued to be subordinated within their regular chains of command”.167

  95. The Prosecution responds that it has adduced sufficient evidence of the Accused’s position of authority as commander of the 2nd Operational Group over the forces who carried out the attack on 6 December 1991.168 The Prosecution further submits that there is evidence that the Accused knew of previous shelling of the Old Town in October and November by forces under his command, which occurred despite written orders precluding such attacks, but no disciplinary action was taken. Moreover, the Accused was aware of the low level of discipline in his subordinate units, which would have alerted him to the threat posed to the Old Town.169 The Prosecution further submits that the evidence could properly establish that the Accused was put on notice that the Old Town had been shelled at the latest at 7.00 in the morning of 6 December 1991.170 With respect to the Accused’s failure to take necessary and reasonable measures to prevent the attack of 6 December 1991, the Prosecution refers to the evidence concerning the Accused’s failure to enforce prior cease-fire orders, to fully carry out the proposed withdrawal of the 472nd Motorised Brigade, and to impose disciplinary measures.171 It further refers to evidence which could support a finding that on 6 December 1991 the Accused failed to take necessary measures to stop the attack.172 Regarding the Accused’s failure to punish the perpetrators, the Prosecution refers to the evidence in support of his failure to take disciplinary measures against the perpetrators, his failure to use the criminal justice channels for enforcing military discipline that were available to him,173 as well as to his recommendation for the promotion of Vladimir Kovacevic because of, and shortly after, the 6 December shelling.174

  96. The Defence replies that the only relevant command of the 3rd Battalion of the 472nd Motorised Brigade was the 9th VPS commanded by Admiral Jokic.175 Furthermore, it argues that the Accused was not informed of the attack by his subordinate Admiral Jokic, but rather by the superior command.176 Finally, the Defence submits that Admiral Jokic did carry out an investigation in relation to the shelling on 6 December 1991 and reported his findings to the General Staff in Belgrade.177 It alleges that in the course of this investigation, Admiral Jokic undertook measures to replace the commander of the 3rd Battalion of the 5th Brigade but failed to do the same with the commander of the 3rd Battalion of the 472nd Motorised Brigade.178

  97. This Chamber finds that there is sufficient evidence upon which a Trial Chamber could conclude that the elements required to invoke the Accused’s command responsibility for the acts of his subordinates have been made out.

  98. First of all, the Trial Chamber is satisfied that there is evidence upon which a Trial Chamber could be persuaded that the Accused had the necessary control and authority over the forces which committed the alleged offences. As stated above, there is evidence capable of establishing that it was forces of the 2nd Operational Group which conducted the attack on 6 December 1991, in particular the 3rd Battalions of the 472nd and 5th Motorised Brigades. 179 The evidence could support a finding that included in this 2nd Operational Group was the 9th VPS, which was in turn under the immediate command of Admiral Jokic, and that the 9th VPS included or had directly subordinated to it at the time those two battalions and any naval forces that may have been engaged in the attack.180 The evidence could also support a finding that the Accused, as commander of the 2nd Operational Group had military command181 and the necessary authority and control over all units within the Group.182

  99. The Chamber is also satisfied that there is evidence capable of persuading a Trial Chamber that the Accused had effective control over his subordinates. In this respect, in particular, Milovan Zorc stated that all principles of command and control for the armed forces applied to the 2nd Operational Group and that its commander was the sole commander issuing orders.183 Prosecution witness Admiral Jokic testified that the 2nd Operational Group had the fundamental organs enabling it to control combat operations.184 More specifically, there are in evidence combat orders issued by the Accused to his subordinate units,185 according to which the units were not to move forward without the Accused’s authorisation.186 Finally, there is evidence on which it could be found that the Accused had the means to prevent the commission of offences187 and to enforce disciplinary measures.188

  100. Furthermore, there is evidence capable of establishing the Accused’s actual knowledge that inter alia the 3rd Battalion of the 472nd Motorised Brigade was committing or had committed the alleged crimes. Several witnesses testified that on 6 December 1991, the Accused was informed that an attack was taking place and that the Old Town was being shelled.189 There is also evidence that could support a finding by a Trial Chamber that the Accused previously possessed information that would have put him on notice of the risk of an attack on the Old Town by forces under his command. In particular, Admiral Jokic testified in relation to the continuous and manifest lack of discipline among the troops of the 3rd Battalion of 472nd Motorised Brigade prior to 6 December 1991,190 of which the Accused was regularly informed.191 There is evidence capable of establishing that the Accused knew of earlier incidents involving the shelling of the Old Town in October and November 1991 by forces of the 2nd Operational Group,192 and in particular in November by the 3rd Battalion of the 472nd Motorised Brigade.193

  101. There is also evidence capable of persuading a Trial Chamber that the Accused failed to take necessary measures to prevent the crimes of 6 December 1991. The recommendation made by Admiral Jokic to withdraw the 472nd Motorised Brigade was only partially implemented and the forces that remained could be found on the evidence to have been strong and equipped with artillery weapons, unnecessarily so having regard to the role to be performed which, the evidence indicates, was solely to enforce a blockade of Dubrovnik, there being no objective to attack or take any territory or the town itself.194 Moreover, Milovan Zorc testified as to the “disastrous” consequences for the command and control climate of a commander’s failure to take disciplinary measures against his subordinates who violate military discipline.195 With respect to the issue of necessary and reasonable measures to stop a violation after it has begun, the evidence could support findings that after he was informed of the attack the Accused failed to take a number of measures available to him as a commander,196 i.e. issuing an order to stop the violation immediately and withdraw the unit from this position; send his high-ranking officers or go personally to the field command; and if his orders were still not obeyed, detain the perpetrator and refer the case to the military prosecution.197

  102. There is also evidence capable of establishing that the Accused did not take necessary and reasonable measures to punish the perpetrators after the attack on 6 December 1991. There is evidence that the Accused was made aware that the JNA report on the damage incurred on 6 December 1991 might not reflect the actual situation.198 Admiral Jokic testified that he never received an order from the Accused to conduct a thorough investigation.199 There is evidence that formal charges against the officers who led the attack were never brought,200 and that Captain Vladimir Kovacevic who commanded the 3rd Battalion of the 472nd Motorised Brigade was promoted with the Accused’s approval.201

  103. The Defence also submits that there is an absence of evidence supporting some detailed particulars in the indictment e.g. that the Accused commanded paramilitary and other units, and concerning the 2nd Tactical Group (not the 2nd Operational Group). While this may be so, these allegations are peripheral and do not directly impinge on the merits of the charges, so that the Chamber will not delay to deal with such issues on this Motion.

    4. Conclusion

  104. On the basis of the foregoing, the Chamber is of the view that there is evidence on which a Trial Chamber could conclude that the Accused ordered and aided and abetted the crimes set out in Counts 1 to 6. The Chamber also finds that there is evidence on which a Trial Chamber could find the Accused responsible as a commander for the crimes committed by his subordinates as set out in Counts 1 to 6.

    IV. DISPOSITION

    The Trial Chamber finds there is not sufficient evidence to allow a reasonable trier of fact to sustain a conviction in respect of Nikola Jovic on Count 2, cruel treatment, or, in respect of the buildings and structures identified in Schedule II of the Indictment other than those listed in the Annex to this decision.

    In these respects the Motion is upheld. Otherwise, it is denied.

 

Done in both English and French, the English text being authoritative.

________________
Judge Kevin Parker
Presiding

________________
Judge Krister Thelin

________________
Judge Christine Van Den Wyngaert

Dated this twenty first day of June 2004
At The Hague
The Netherlands

[Seal of the Tribunal]


V. ANNEX

Part A:

96 buildings and structures identified in Schedule II of the Indictment. In column 2, the Chamber has given sequential numbers to all 450 buildings and structures as they appear in Schedule II. The Chamber has made reference to evidence in the footnotes to the relevant contested buildings and structures. When there is no footnote provided the building or structure has not been contested.
Number
Number in
Schedule II
Object
A1
31
The Arsenal (city walls)202
A2
26/35/36203
Vrata Od Pila (City gate, Pile) and fortification at Pile204
A3
43
Stradun
A4
44-52205
Complex of Franciscan Monastery and Church, HQs of ICRC
A5
53
Franciscan Monastery-Bell Tower
A6
54
The Church of St. Saviour
A7
57
Public fountain
(Onofrio Fountain)
A8
70

Complex of Sigurata Monastery
A9
241

Palace - Od Sigurate 2206
(Residential, Block Placa - Antuninska Street - Prijeko-Palmoticeva Street 2)207

A10
244
Palace- Od Sigurate 1 (Festival Palace)
(Commercial, Block Placa -Od Sigurate- Prijeko- C. Medovic Street 1)208
A11
247

Palace - Od Puca 16
(Residential, Od Puca 16)
A12
275
Residential, Zlatariceva 6
A13
293/319209
Drziceva Poljana Cathedral
A14
298
St. Vlaho Church
(St. Blaise Church)
A15
300
Residential, Lucarica 6
A16
301
Residential, Lucarica 8
A17
302
Entrance in front of St. Vlaho church
A18
303/304210
Residential business, Izmedju Polaca 10
A19
305
Residential business, Izmedju Polaca 2 and 4
A20
306
Residential business, Cvijete Zuzoric 2 and 10

A 21

307

Residential business, Marojice Kaboge 4

A 22

308

Business, Od Puca

A 23

309

Business, Izmedju Polaca 5

A 24

310

administration - business, Cvijete Zuzoric 6

A 25

311

Residential business, Marojice Kaboge

A 26

312

Residential, Miha Pracata 6

A 27

313

Residential business, Od Puca 8

A 28

314

Serbian Orthodox Church

A 29

315

Residential business, Nikole Bozidarevica 1

A 30

316

Residential business, Izmedju Polaca 9, 11

A 31

317

Residential business, Izmedju Polaca

A 32

320

Residential, Drziceva Poljana 3

A 33

321

Residential, 4 Buniceva Poljana

A 34

322

Fountain

A 35

323

Residential, 2 Gunduliceva Poljana

A 36

324

Public facility, terrace, chapel, Od Puca Street

A 37

325

Residential - commercial, 12 M. Kaboga Street

A 38

327

Residential - commercial, M. Pracat Street 7

A 39

328

Mosque

A 40

329

Residential, Uska Street 8, Kaboga Street

A 41

330

Residential, Marojica 8, Kaboga Street

A 42

331

Residential, M. Pracat Street 13

A 43

332

M. Simoni School

A 44

333

Residential, Pecarica 2

A 45

334

Residential, M. Pracat Street 8

A 46

335

Residential, Tmusasta Street 1

A 47

336

Residential, M. Pracat Street

A 48

337

Residential, M. Pracat Street 12

A 49

338

Residential, Tmusasta Street 2

A 50

339

Residential, Pecarica 8 and 10

A 51

340

Residential, Pecarica 6

A 52

341

Residential, Pecarica 4

A 53

342

Residential, Strossmayer Street 12

A 54

343

Residential, M. Bozidarevic Street 13-15

A 55

344

Residential, Bozidarevic Street 9

A 56

345

Residential, Bozidarevic Street 7

A 57

346

Palace Sorkocevic – Miha Pracata 6
(Residential - commercial, 6 Miha Pracata Street)

A 58

347

Residential - commercial, Od Puca Street 9

A 59

348/295211

Palace - Od Puca 11
(Residential - commercial, Od Puca Street 11212

A 60

349

Residential - commercial, Nikola Bozidarevic Street 3

A 61

350

Residential, Nikola Bozidarevic Street 3

A 62

351

Residential, Nikola Gucetic 2

A 63

352

Residential, Nikola Bozidarevic Street 18

A 64

353

Residential, St. Josip Street 21

A 65

354

Residential, St. Josip Street 19

A 66

355

Residential, St. Josip Street 17

A 67

356

Residential, St. Josip Street 11

A 68

357

Commercial, Nikola Bozidarevic Street 14

A 69

358

Residential, St. Josip Street 14

A 70

359

Residential, Od Domina Street 9

A 71

360

Residential - commercial, Od Domina Street 3

A 72

361

Residential, Hidzina Street

A 73

362

Residential, Hidzina Street 2

A 74

363

Residential, Od Domina Street 1

A 75

364

Domino Church

A 76

365

Marin Drzic House-Museum

A 77

366

Residential - commercial, Siroka Street 5

A 78

36

Palace Martinusic – Sv. Josipa 1
(Residential - commercial, St. Josip Street 1)

A 79

368

Church of St. Joseph

A 80

369

Residential, St. Josip Street 4,6,8

A 81

370

Residential, St. Josip Street 3

A 82

371

Residential, St. Josip Street 5,7,9

A 83

372

Residential - commercial, Nikola Bozidarevic Street 10 and 12

A 84

390

St. Roko Church

A 85

395

Residential, Domino Street 6

A 86

396

Residential, Domino Street 8

A 87

397

Residential, Puzljiva Street 2

A 88

398

Residential, Puzljiva Street 10

A 89

399

Residential, Puzljiva Street 3

A 90

400

Residential, Puzljiva Street 5

A 91

429

Luka Sorkocevic Music Education Centre

A 92

439

Cinema and Café

A 93

440

Rector's Palace213

A 94

442

Sponza Palace

A 95

444

Dominican Monastery

A 96

446

Annunciation Church

 

Part B:

20 buildings and structures that could not be readily identified in Schedule II of the Indictment but which are located in the Old Town.

Number
Object

B 1

City Port214

B 2

House of Grubisic
(Celestina Medovica 4)215

B 3

Synagogue216

B 4

Boskoviceva Street 1217

B 5

Boskoviceva Street 3218

B 6

Mr. Srhoj's, house (Od Sigurate 4 or 5)219

B 7

Shop on the corner of Stradun and Siroka220

B 8

Building on the corner of Stradun and Cubranoviceva (Insula 8, building No 13)221

B 9

Residential building in Zlatariceva Street222

B 10

Birth place of artist Ivo Vojinovic
(facing Stradun)223

B 11

Building on the corner of Izmedju Polaca and Nikole Bozidarevica224

B 12

Izmedju Polaca 12 (IX-13)225

B 13

Izmedju Polaca 14 (IX-14)226

B 14

Jadran Restaurant227

B 15

Residential building on St. Joseph's Street (with shops on the ground floor)228

B 16

City Bell Tower229

B 17

Miha Pracata 4 (IX-23)230

B 18

Nikola Jovic’s shop (Miha Pracata 11)231

B 19

Lucijana Peko’s house232

B 20

Northern parts of the city walls/walkways233