²⁹⁸

Thursday, 18 March 2004

[Sentencing]

(Open session)

[The accused entered court]

--- Upon commencing at 3.08 p.m.

JUDGE ORIE: Madam Registrar, would you please call the case.

THE REGISTRAR: Case Number IT-01-42/1-S, The Prosecutor versus Miodrag Jokic.

JUDGE ORIE: Thank you, Madam Registrar. Mr. Jokic, before we continue, can you hear me in a language you understand?

I then repeat my question, but see that you're not responding. Mr. Jokic, then, again I ask you whether you can now hear me in a language you understand.

THE ACCUSED: [Interpretation] Your Honour, I can hear you, and I understand you.

JUDGE ORIE: Thank you, Mr. Jokic. May I have the appearances. Prosecution first.

MS. SOMERS: Good afternoon, Your Honours. On behalf of the Prosecution, Susan Somers, lead counsel. Also present, Ms. Prashanthi Mahindaratne, Ms. Gina Butler, and Ms. Victoria McCreath.

JUDGE ORIE: Thank you, Mr. Somers. And for the Defence.

MR. NIKOLIC: [Interpretation] Good afternoon, Your Honours. Good afternoon, Ms. Somers, and good afternoon to her team. Zarko Nikolic and Jelena Nikolic for the Defence of Admiral Jokic. ²⁹⁹

JUDGE ORIE: I may just, on my laptop, I've got no transcript, but I can do without for the time being. It's no need to wait and fix it at this very moment.

We are here today to deliver the sentencing judgement of Miodrag Jokic for the events related to the shelling of Dubrovnik on the 6th of December 1991. What now follows is only the summary of the written judgement and forms no part of it. The written judgement will be made available to the parties and to the public at the end of this hearing. I will first briefly set out the context and the facts of the case, as well as the factors the Trial Chamber has considered in imposing the sentence. It should be kept in mind that the findings are based not upon litigation of the facts, but upon the submissions of the parties in accordance with the plea agreement, and to a lesser extent, upon evidence led during the sentencing proceedings.

Miodrag Jokic surrendered voluntarily to the Tribunal the 12th of November 2001. After initially pleading not guilty, he concluded a plea agreement with the Prosecution on the 21st of August 2003. According to this agreement, Jokic pleaded guilty to the six counts contained in the second amended indictment. All six counts charge violations of the laws or customs of war. The Trial Chamber was satisfied that the guilty plea conformed with Rule 62 bis of the Tribunal's Rules of Procedure and Evidence, setting out the requirements for a valid guilty plea, and entered a finding of guilt for each of the counts.

At the sentencing hearing on the 4th of December 2003, the Prosecution and Defence addressed the Trial Chamber and called two ³⁰⁰ witnesses each. Jokic himself delivered a brief statement. Miodrag Jokic was born in Donja Toplica, Serbia, on the 25th of February 1935. He served in the Yugoslav Navy until the 8th of May 1992. In October 1991, Jokic was appointed commander of the 9th Naval Sector. The events of the 6th of December 1991, which took place in and around Dubrovnik, were preceded by a military campaign started on the 8th of October 1991 and conducted by Jokic acting individually and in concert with others. Dubrovnik was encircled by federal Yugoslav forces, the JNA, for approximately three months. The Old Town of Dubrovnik was shelled on a number of occasions.

At the beginning of December 1991, JNA and Croatian forces were about to reach a comprehensive cease-fire. Miodrag Jokic was the negotiator on the Yugoslav side. However, on the 6th of December, JNA forces under the command of, among others, Jokic, unlawfully shelled the Old Town of Dubrovnik.

As a result of the shelling on that day, two civilians were killed, and three were wounded in the Old Town. Six buildings of the Old Town were destroyed in their entirety, and many more buildings suffered damage. Institutions dedicated to religion, charity, education, and the arts and sciences, and historic monuments and works of art and science were damaged or destroyed.

The shelling continued for some part of the day. At 2.00 p.m. on the 6th of December 1991, Jokic sent a radiogram to a Croatian government minister in Dubrovnik expressing his regret for the difficult and unfortunate situation. He claimed in the radiogram that he had not ³⁰¹ ordered the shelling. Nevertheless, despite the intensity with which the Old Town was being shelled, there was no immediate order given by Jokic to cease-fire. The parties agree that Jokic had knowledge of the unlawful shelling from the early hours of the morning of the 6th of December 1991 and failed to take the necessary measures to prevent or to stop the shelling. Moreover, following the shelling, no one on the JNA side, of which Jokic has responsibility as superior officer, was punished or disciplined for the shelling.

On the 7th of December 1991, a comprehensive cease-fire was finally achieved. During the meeting at which the cease-fire was finalised, Jokic apologised to his Croatian counterparts for the events of the day before.

I shall now address the question of the crimes to which Miodrag Jokic has pleaded guilty and the form of responsibility for these crimes. As I indicated above, the crimes were perpetrated on the 6th of December 1991, the only day to which the indictment refers. Jokic has been convicted for the crimes of unlawful attack on civilians within the Old Town of Dubrovnik, for the murder of two persons (Tonci Skocko and Pavo Urban) in the course of the attack, and for the cruel treatment by wounding of three others (Nikola Jovic, Mato Valjalo, and Ivo Vlasica) in the course of that same attack. He has also been convicted for devastation not justified by military necessity and for unlawful attack on civilian objects. Finally, Jokic has been convicted for destruction or wilful damage done to institutions dedicated to religion, charity, and education, the arts and sciences, historic ^{302BLANK PAGE 303} monuments, and works of art and science. The Old Town of Dubrovnik was protected not only under the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict, but also as an UNESCO World Cultural Heritage site. It was an outstanding architectural site illustrating a significant stage in human history and cultural achievement. The shelling attack on the Old Town was an attack not only against the history and heritage of the region, but also against the cultural heritage of the whole of humankind.

Jokic's responsibility for the crimes for which he has been convicted is described partially Article 7(1) of the Statute (aiding and abetting) and partially by Article 7(3) of the Statute (superior responsibility). The crimes were committed by soldiers under his command, although, as the Prosecution submitted, the crimes were not ordered by Jokic. Part of Jokic's behaviour, in particular, his acts and omissions before the shelling of the Old Town by JNA forces on the 6th of December 1991 is correctly qualified as aiding and abetting since it had a substantial effect on the commission of the crimes on that day. Other culpable omissions are properly qualified in the specific circumstances of the case as superior responsibility pursuant to Article 7(3) of the Statute. These are Jokic's lack of proper response to the crimes and his failure to punish the perpetrators who were under his authority. The Trial Chamber has considered the purposes of punishment in light of the mandate of the Tribunal. In accordance with the jurisprudence, retribution, deterrence, and rehabilitation have been considered as relevant purposes of punishment for international crimes. ³⁰⁴ As for the factors to be taken into account in sentencing, the Trial Chamber first considered the gravity of the crimes, with reference to the particular circumstances of the case, as well as to the form and the degree of participation of Jokic in those crimes. An unlawful military attack on civilians resulting in death and injuries is a very serious violation of international humanitarian law. It transgresses a core principle of international humanitarian law. Grave and long-lasting consequences can be expected from shelling a populated area. The death of two civilians, and the wounding of another three, must be condemned in strongest terms.

The Trial Chamber also considers the crime of devastation not justified by military necessity and the unlawful attack on civilian objects to be very serious in the present case in view of the destruction caused by one day of heavy shelling upon the Old Town. The Trial Chamber in its judgement has paid considerable attention to the crime of destruction or wilful damage done to institutions dedicated to religion, charity, education, and the arts and sciences, and to historic monuments and works of art and science. The Trial Chamber has found that this is a crime representing a violation of an especially protected value, the crime was particularly serious in the present case because the Old Town of Dubrovnik was, in its entirety, listed as a protected UNESCO site. Residential buildings within the city were, therefore, especially protected, together with the rest of the site, as an outstanding architectural site illustrating a significant stage in the history of humankind. ³⁰⁵ The leadership position of an accused can be an aggravating circumstance for the purposes of punishment in view of the potentially far-reaching consequences of improper exercise of authority from a position of high office. The Trial Chamber has found this aggravating circumstance applicable for Miodrag Jokic who was an admiral, and by virtue of this position, had considerable power and authority. However, as I mentioned earlier in my description of Jokic's participation in and responsibility for the crimes, his involvement was peripheral and mostly effected through omissions.

The Trial Chamber has considered in mitigation the fact that Jokic, a high-ranking officer, voluntarily surrendered to the Tribunal, pleaded guilty to the second amended indictment, and actively cooperated with the Prosecution.

Moreover, the Trial Chamber has assigned substantial weight in mitigation to the fact that Jokic publicly expressed his dissent and regret in relation to the shelling, not merely when he faced charges before a court of law, but already on the 6th of December 1991. The Chamber further considered in mitigation Jokic's good conduct following the attack.

The Trial Chamber has also taken into consideration Jokic's personal circumstances.

Would you, Miodrag Jokic, please rise.

[The accused stands]

JUDGE ORIE: For the reasons summarised above, the Trial Chamber hereby sentences you, Miodrag Jokic, to a single sentence of seven years' ³⁰⁶ imprisonment. Pursuant to Rule 101(C) of the Rules, you're entitled to credit for the time spent in detention, which amount to 116 days. You may be seated.

[The accused sits]

JUDGE ORIE: The Tribunal stands adjourned.

--- Whereupon the Sentencing adjourned at 3.27 p.m.