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1 Thursday, 18 March 2004

2 [Sentencing]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 3.08 p.m.

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

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

8 Miodrag Jokic.

9 JUDGE ORIE: Thank you, Madam Registrar.

10 Mr. Jokic, before we continue, can you hear me in a language you

11 understand?

12 I then repeat my question, but see that you're not responding.

13 Mr. Jokic, then, again I ask you whether you can now hear me in a

14 language you understand.

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

16 understand you.

17 JUDGE ORIE: Thank you, Mr. Jokic.

18 May I have the appearances. Prosecution first.

19 MS. SOMERS: Good afternoon, Your Honours. On behalf of the

20 Prosecution, Susan Somers, lead counsel. Also present,

21 Ms. Prashanthi Mahindaratne, Ms. Gina Butler, and Ms. Victoria McCreath.

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

23 MR. NIKOLIC: [Interpretation] Good afternoon, Your Honours. Good

24 afternoon, Ms. Somers, and good afternoon to her team. Zarko Nikolic and

25 Jelena Nikolic for the Defence of Admiral Jokic.

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1 JUDGE ORIE: I may just, on my laptop, I've got no transcript, but

2 I can do without for the time being. It's no need to wait and fix it at

3 this very moment.

4 We are here today to deliver the sentencing judgement of

5 Miodrag Jokic for the events related to the shelling of Dubrovnik on the

6 6th of December 1991. What now follows is only the summary of the written

7 judgement and forms no part of it. The written judgement will be made

8 available to the parties and to the public at the end of this hearing.

9 I will first briefly set out the context and the facts of the

10 case, as well as the factors the Trial Chamber has considered in imposing

11 the sentence. It should be kept in mind that the findings are based not

12 upon litigation of the facts, but upon the submissions of the parties in

13 accordance with the plea agreement, and to a lesser extent, upon evidence

14 led during the sentencing proceedings.

15 Miodrag Jokic surrendered voluntarily to the Tribunal the 12th of

16 November 2001. After initially pleading not guilty, he concluded a plea

17 agreement with the Prosecution on the 21st of August 2003. According to

18 this agreement, Jokic pleaded guilty to the six counts contained in the

19 second amended indictment. All six counts charge violations of the laws

20 or customs of war. The Trial Chamber was satisfied that the guilty plea

21 conformed with Rule 62 bis of the Tribunal's Rules of Procedure and

22 Evidence, setting out the requirements for a valid guilty plea, and

23 entered a finding of guilt for each of the counts.

24 At the sentencing hearing on the 4th of December 2003, the

25 Prosecution and Defence addressed the Trial Chamber and called two

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1 witnesses each. Jokic himself delivered a brief statement.

2 Miodrag Jokic was born in Donja Toplica, Serbia, on the 25th of

3 February 1935. He served in the Yugoslav Navy until the 8th of May 1992.

4 In October 1991, Jokic was appointed commander of the 9th Naval

5 Sector. The events of the 6th of December 1991, which took place in and

6 around Dubrovnik, were preceded by a military campaign started on the 8th

7 of October 1991 and conducted by Jokic acting individually and in concert

8 with others. Dubrovnik was encircled by federal Yugoslav forces, the JNA,

9 for approximately three months. The Old Town of Dubrovnik was shelled on

10 a number of occasions.

11 At the beginning of December 1991, JNA and Croatian forces were

12 about to reach a comprehensive cease-fire. Miodrag Jokic was the

13 negotiator on the Yugoslav side. However, on the 6th of December, JNA

14 forces under the command of, among others, Jokic, unlawfully shelled the

15 Old Town of Dubrovnik.

16 As a result of the shelling on that day, two civilians were

17 killed, and three were wounded in the Old Town. Six buildings of the Old

18 Town were destroyed in their entirety, and many more buildings suffered

19 damage. Institutions dedicated to religion, charity, education, and the

20 arts and sciences, and historic monuments and works of art and science

21 were damaged or destroyed.

22 The shelling continued for some part of the day. At 2.00 p.m. on

23 the 6th of December 1991, Jokic sent a radiogram to a Croatian government

24 minister in Dubrovnik expressing his regret for the difficult and

25 unfortunate situation. He claimed in the radiogram that he had not

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1 ordered the shelling. Nevertheless, despite the intensity with which the

2 Old Town was being shelled, there was no immediate order given by Jokic to

3 cease-fire. The parties agree that Jokic had knowledge of the unlawful

4 shelling from the early hours of the morning of the 6th of December 1991

5 and failed to take the necessary measures to prevent or to stop the

6 shelling. Moreover, following the shelling, no one on the JNA side, of

7 which Jokic has responsibility as superior officer, was punished or

8 disciplined for the shelling.

9 On the 7th of December 1991, a comprehensive cease-fire was

10 finally achieved. During the meeting at which the cease-fire was

11 finalised, Jokic apologised to his Croatian counterparts for the events of

12 the day before.

13 I shall now address the question of the crimes to which

14 Miodrag Jokic has pleaded guilty and the form of responsibility for these

15 crimes. As I indicated above, the crimes were perpetrated on the 6th of

16 December 1991, the only day to which the indictment refers.

17 Jokic has been convicted for the crimes of unlawful attack on

18 civilians within the Old Town of Dubrovnik, for the murder of two persons

19 (Tonci Skocko and Pavo Urban) in the course of the attack, and for the

20 cruel treatment by wounding of three others (Nikola Jovic, Mato Valjalo,

21 and Ivo Vlasica) in the course of that same attack. He has also been

22 convicted for devastation not justified by military necessity and for

23 unlawful attack on civilian objects. Finally, Jokic has been convicted

24 for destruction or wilful damage done to institutions dedicated to

25 religion, charity, and education, the arts and sciences, historic

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12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













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1 monuments, and works of art and science. The Old Town of Dubrovnik was

2 protected not only under the 1954 Hague Convention on the Protection of

3 Cultural Property in the Event of Armed Conflict, but also as an UNESCO

4 World Cultural Heritage site. It was an outstanding architectural site

5 illustrating a significant stage in human history and cultural

6 achievement. The shelling attack on the Old Town was an attack not only

7 against the history and heritage of the region, but also against the

8 cultural heritage of the whole of humankind.

9 Jokic's responsibility for the crimes for which he has been

10 convicted is described partially Article 7(1) of the Statute (aiding and

11 abetting) and partially by Article 7(3) of the Statute (superior

12 responsibility). The crimes were committed by soldiers under his command,

13 although, as the Prosecution submitted, the crimes were not ordered by

14 Jokic. Part of Jokic's behaviour, in particular, his acts and omissions

15 before the shelling of the Old Town by JNA forces on the 6th of December

16 1991 is correctly qualified as aiding and abetting since it had a

17 substantial effect on the commission of the crimes on that day. Other

18 culpable omissions are properly qualified in the specific circumstances of

19 the case as superior responsibility pursuant to Article 7(3) of the

20 Statute. These are Jokic's lack of proper response to the crimes and his

21 failure to punish the perpetrators who were under his authority.

22 The Trial Chamber has considered the purposes of punishment in

23 light of the mandate of the Tribunal. In accordance with the

24 jurisprudence, retribution, deterrence, and rehabilitation have been

25 considered as relevant purposes of punishment for international crimes.

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1 As for the factors to be taken into account in sentencing, the

2 Trial Chamber first considered the gravity of the crimes, with reference

3 to the particular circumstances of the case, as well as to the form and

4 the degree of participation of Jokic in those crimes.

5 An unlawful military attack on civilians resulting in death and

6 injuries is a very serious violation of international humanitarian law.

7 It transgresses a core principle of international humanitarian law. Grave

8 and long-lasting consequences can be expected from shelling a populated

9 area. The death of two civilians, and the wounding of another three, must

10 be condemned in strongest terms.

11 The Trial Chamber also considers the crime of devastation not

12 justified by military necessity and the unlawful attack on civilian

13 objects to be very serious in the present case in view of the destruction

14 caused by one day of heavy shelling upon the Old Town.

15 The Trial Chamber in its judgement has paid considerable attention

16 to the crime of destruction or wilful damage done to institutions

17 dedicated to religion, charity, education, and the arts and sciences, and

18 to historic monuments and works of art and science. The Trial Chamber has

19 found that this is a crime representing a violation of an especially

20 protected value, the crime was particularly serious in the present case

21 because the Old Town of Dubrovnik was, in its entirety, listed as a

22 protected UNESCO site. Residential buildings within the city were,

23 therefore, especially protected, together with the rest of the site, as an

24 outstanding architectural site illustrating a significant stage in the

25 history of humankind.

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1 The leadership position of an accused can be an aggravating

2 circumstance for the purposes of punishment in view of the potentially

3 far-reaching consequences of improper exercise of authority from a

4 position of high office. The Trial Chamber has found this aggravating

5 circumstance applicable for Miodrag Jokic who was an admiral, and by

6 virtue of this position, had considerable power and authority.

7 However, as I mentioned earlier in my description of Jokic's

8 participation in and responsibility for the crimes, his involvement was

9 peripheral and mostly effected through omissions.

10 The Trial Chamber has considered in mitigation the fact that

11 Jokic, a high-ranking officer, voluntarily surrendered to the Tribunal,

12 pleaded guilty to the second amended indictment, and actively cooperated

13 with the Prosecution.

14 Moreover, the Trial Chamber has assigned substantial weight in

15 mitigation to the fact that Jokic publicly expressed his dissent and

16 regret in relation to the shelling, not merely when he faced charges

17 before a court of law, but already on the 6th of December 1991. The

18 Chamber further considered in mitigation Jokic's good conduct following

19 the attack.

20 The Trial Chamber has also taken into consideration Jokic's

21 personal circumstances.

22 Would you, Miodrag Jokic, please rise.

23 [The accused stands]

24 JUDGE ORIE: For the reasons summarised above, the Trial Chamber

25 hereby sentences you, Miodrag Jokic, to a single sentence of seven years'

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1 imprisonment. Pursuant to Rule 101(C) of the Rules, you're entitled to

2 credit for the time spent in detention, which amount to 116 days.

3 You may be seated.

4 [The accused sits]

5 JUDGE ORIE: The Tribunal stands adjourned.

6 --- Whereupon the Sentencing adjourned

7 at 3.27 p.m.