Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Wednesday, 23 April 2008

 2                           [Appeals Hearing]

 3                           [Open session]

 4                           [The appellant entered court]

 5                           --- Upon commencing at 9.37 a.m.

 6             JUDGE VAZ: [Interpretation] Ladies and gentlemen, good morning.

 7     I declare this hearing open.

 8             Madam Registrar, please call the case for today's hearing.

 9             THE REGISTRAR:  Good morning, Your Honours, this is the case

10     number IT-01-42-A, the Prosecutor versus Pavle Strugar.

11             JUDGE VAZ: [Interpretation] Thank you.  I would like to know

12     whether Mr. Strugar is in a position to hear and to follow the

13     proceedings in a language he understands?

14             THE APPELLANT: [Interpretation] Indeed, Your Honour.

15             JUDGE VAZ: [Interpretation] Thank you.  I'm now going to ask for

16     the appearances of the parties starting with Mr. Strugar's Defence.

17             MR. RODIC: [Interpretation] Good morning, Your Honours.  On

18     behalf of Mr. Pavle Strugar, before the Appeals Chamber today, counsel

19     Goran Rodic from Podgorica and counsel Vladimir Petrovic from Belgrade.

20             JUDGE VAZ: [Interpretation] Thank you.  Let me now turn to the

21     office of the Prosecution.

22             MS. BRADY:  Good morning Your Honours, Helen Brady appearing on

23     behalf of the Prosecution, together with Michelle Jarvis, Laurel Baig,

24     Xavier Tracol, and our case manager, Sebastian van Hooydonk.

25             JUDGE VAZ: [Interpretation] Thank you, Ms. Brady.  The

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 1     Appeals Chamber is sitting today to hear the parties's submissions

 2     related to the appeals filed by Mr. Strugar and by the OTP against the

 3     Trial Chamber's judgement.

 4             Before I give the floor to the parties, I am going to briefly

 5     summarise the grounds of appeal pending before the Appeals Chamber and I

 6     will also outline the way we will proceed today.

 7             In its judgement rendered on the 31st of January, 2005, the

 8     Trial Chamber II, made up of Judge Parker presiding, Judge Thelin and

 9     Judge Van den Wyngaert, sentenced Pavle Strugar to a single sentence of

10     eight years of imprisonment for the counts he was found guilty of.

11     Namely, count 3, attacks on civilians pursuant to Articles 3 and 7(3) of

12     the Statute; count 6, destruction or wilful damage to cultural property

13     pursuant to Articles 3(d) and 7(3) of the Statute.

14             Both parties appealed the trial judgement.  At the request of the

15     parties, the Appeals Chamber accepted the withdrawal of these appeals on

16     the 20th of September, 2006, and then the appeals proceedings were

17     reopened on the 7th of June, 2007.

18             Under his first and third grounds of appeal, Strugar submits that

19     the Trial Chamber committed errors of fact.  Firstly, he contends that

20     several findings contained in the judgements are erroneous with respect

21     to JNA combat operations in the Dubrovnik area in October and November

22     1991.  Under the same sub-ground of appeal, he submits that the

23     Trial Chamber erroneously found that the mental element required to

24     establish his superior responsibility under Article 7(3) of the Statute

25     had been satisfied.

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 1             Secondly, Mr. Strugar alleges that the Trial Chamber committed an

 2     error in relation to the events of the 3rd and 5th of December, 1991,

 3     with respect to his responsibility in the negotiations with Croatian

 4     ministers and in the planning of the attack against Srdj.

 5             Thirdly, Strugar maintains that the Trial Chamber committed

 6     errors related to the events of the 6th of December, 1991.

 7             Fourthly, Strugar submits that the Trial Chamber committed an

 8     error in relation to his failure to prevent crimes and, in particular, in

 9     respect to the command structure of the 2nd Operational Group, his

10     material ability to prevent crimes, his measures to prevent or stop the

11     shelling of the Old Town, and finally, the cease-fire order.

12             As a fifth point, Strugar alleges errors in the Trial Chamber's

13     findings regarding his material ability to punish, his failure to take

14     measures after the events of the 6th of December, 1991, and the

15     promotions and decorations awarded to individuals involved in these

16     events.

17             Under his second ground of appeal, Strugar submits, first of all,

18     that the Trial Chamber erroneously concluded that the legal requirement

19     of a superior subordinate relationship was established on the facts of

20     this case.  Under the second sub-ground of this ground of appeal, Strugar

21     submits that the Trial Chamber erred in its conclusions in relation to

22     the mens rea for the following crimes:  Attack on civilians and

23     destruction or wilful damage to cultural property.  For example, in its

24     findings related to indirect intent.

25             Under his fourth ground of appeal related to sentencing, Strugar

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 1     submits that the Trial Chamber committed an error in its comparison of

 2     his sentence and that of Miodrag Jokic in failing to assign due weight to

 3     his apologies and in failing to give sufficient weight to some mitigating

 4     circumstances.

 5             Finally, as part of his fifth and last ground of appeal, Strugar

 6     raises issues related to his fitness to stand trial in the first place.

 7     Mr. Strugar therefore requests the Appeals Chamber to acquit him on all

 8     charges against him or alternatively to order a new trial or to

 9     significantly reduce his sentence.

10             He also requests the Appeals Chamber to terminate judicial

11     proceedings in his case on the grounds that he was and still is not fit

12     to stand trial.

13             The Prosecution requests that the totality of Strugar's grounds

14     of appeal be dismissed.  As mentioned earlier, the Prosecution has also

15     appealed against the trial judgement.  Under its first ground of appeal,

16     the Prosecution alleges that the Trial Chamber erred in law in its

17     application of the test related to mens rea required under Article 7(3)

18     of the Statute in holding that prior to the attack on Srdj launched in

19     the early hours of the 6th of December, 1991, Strugar did not know or

20     have any reason to know that his subordinates were about to commit an

21     offence.

22             Alternatively, the Prosecution submits that even if the

23     Trial Chamber's interpretation of the law is correct, the Trial Chamber,

24     nonetheless, erred in fact in finding that it had not been established

25     that prior to the attack on Srdj, Strugar had reasonable grounds to

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 1     suspect that his subordinates were about to commit an offence.

 2             Under his second ground of appeal, the Prosecutor submits that

 3     the Trial Chamber committed an error in the application of the law on

 4     cumulative convictions for grounds -- for counts 4, devastation not

 5     justified by military necessity.  Count 5, unlawful attacks on civilian

 6     objects.  And Count 6, destruction or wilful damage to cultural property.

 7             Finally, under its third and last ground of appeal related to

 8     sentencing, the Prosecution submits that the Trial Chamber erred in its

 9     comparison of Mr. Strugar's sentence and Miodrag Jokic's sentence and in

10     holding that the apologies of Mr. Strugar constitute a mitigating

11     circumstance.

12             The Prosecution requests the Appeals Chamber to reverse the

13     Trial Chamber's finding that Mr. Strugar did not have the obligation to

14     prevent the shelling of the Old Town of Dubrovnik prior to the beginning

15     of the attack against Srdj and to adjust the sentence accordingly.

16             Furthermore, the Prosecution requests the Appeals Chamber to

17     enter convictions under Counts 4 and 5 of the indictment and that

18     Mr. Strugar's sentence be increased.

19             During today's hearing, the parties may decide to put forth their

20     grounds and sub-grounds of appeal in the order they see fit.  However, I

21     would like to remind the parties that they have been invited to address a

22     number of issues outlined in the memorandum sent to them on the 20th of

23     March, 2008.  I'm not going to repeat what was mentioned in that memo.

24             I'm now going to record what standards are applicable to errors

25     of fact or errors of law raised on appeal.

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 1             Appeals against judgement do not constitute de novo trials.  The

 2     parties cannot merely repeat the arguments they have already made in a

 3     trial.  Under Article 25 of the Statute, the role of the Appeals Chamber

 4     is limited to correcting legal errors that invalidate a decision and

 5     factual errors that result in a miscarriage of justice.

 6             As a result, any party alleging a error of law must present

 7     arguments in support of its claim and explain how the error invalidates

 8     the decision.

 9             As for factual errors, it is well-established in the

10     jurisprudence that the Appeals Chamber will not likely disturb findings

11     of fact by a Trial Chamber.  The Appeals Chamber will only do so when it

12     has been established that no reasonable trier of facts could have reached

13     the same conclusion or when the conclusion is wholly erroneous.

14             Furthermore, the Appeals Chamber may dismiss summarily without

15     reviewing them on the merits the arguments submitted by a party that have

16     no chance to lead to a reversal or a change of the impugned decision.

17     Appealing parties furthermore need and must provide specific references

18     to all the elements supporting their case on appeal.

19             Furthermore, it cannot be expected of the Appeals Chamber to

20     review in detail the parties' submissions if such submissions are

21     obscure, contradictory or vague or if they suffer from other formal and

22     obvious deficiencies.

23             Finally, the Appeals Chamber has an inherent discretion to

24     determine which of these submissions merit a reasoned opinion in writing

25     and will therefore dismiss arguments which are evidently unfounded

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 1     without providing a detailed reasoning in writing.

 2             In this hearing, we'll proceed pursuant to the Scheduling Order

 3     of 29th of January, 2008.  The Defence will start with its submissions

 4     for an hour and a half.  We'll then have a 20-minute break.  The

 5     Prosecution will start responding during an hour.  We'll have a one-hour

 6     break, and the Defence will have 30 minutes to reply.  Following that,

 7     the Prosecution will make its own submissions for an hour and a half, and

 8     we'll have a 20-minute break in the middle of this presentation.  The

 9     Defence will have one hour to respond to the Prosecution.  We'll have a

10     last break of 20 minutes and then the Prosecution will have 30 minutes to

11     reply.

12             Finally, Mr. Strugar will be invited to take the floor, if he

13     wishes to do so, for a short statement that should not be longer than 15

14     minutes.

15             The Appeals Chamber would find it extremely useful if the parties

16     could make their submissions in a clear, organised and concise fashion.

17     At any time, the Judges may interrupt the parties to ask for

18     clarification or put questions.

19             Obviously, the parties do not have to use all the time given to

20     them.  If there aren't any questions about the way we are going to

21     proceed today, I am now going to invite the Defence to start with its

22     submissions on appeal.

23             Fine.  The Defence has the floor.  Mr. Rodic.

24             MR. RODIC: [Interpretation] Thank you, Your Honour.

25             The Defence of Pavle Strugar has launched an appeal against the

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 1     judgement of the Trial Chamber dated the 31st of January, 2005.  In our

 2     appeal, we gave a thorough presentation of the reasons for which we

 3     believe that the Trial Chamber's judgement was reached after errors were

 4     committed, errors of law and errors of fact resulting in a miscarriage of

 5     justice.

 6             The Defence fully accepts the standard of review for judgements

 7     reached by Trial Chambers in terms of errors of law and errors of fact.

 8     These criteria are well-established in the jurisprudence of this

 9     International Tribunal.

10             In our appellate brief, we pointed out how certain errors were

11     made that have repercussions on the miscarriage of justice.  The Defence

12     pointed out errors that were made that in terms of their nature and

13     gravity require the intervention of the Appeals Chamber by quashing the

14     original judgement or revising or reversing certain conclusions reached

15     by the Trial Chamber.

16             The Defence has grouped the areas that it believes the

17     Trial Chamber to have committed in -- as five grounds with a number of

18     sub-grounds.

19             The Defence abides by what is stated in its appellate brief.  The

20     Defence will use this opportunity to underline certain errors made by the

21     Trial Chamber.

22             The Defence particularly wishes to point out these errors in

23     order to have them clarified.  Likewise, the Defence will do everything

24     within its power to avoid repetition of what has already been said and

25     written to the greatest possible extent and thereby contribute to a

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 1     speedy, efficient, and effective hearing.

 2             The Defence believes that there is no evidence suggesting that

 3     Strugar ordered the attack on Srdj.  One of the key errors made by the

 4     Trial Chamber was the finding that Pavle Strugar had ordered an attack on

 5     Srdj.

 6             The Trial Chamber found that Strugar issued that order on the 5th

 7     of December, 1991.  This finding was reached based on the evidence of

 8     Prosecution witness, Colm Doyle.  There is one key sentence in Doyle's

 9     evidence, I quote:  "And the interpreter informed me that the General had

10     been quite angry because of what was termed to me as paramilitaries on

11     the territory of Bosnia and Herzegovina had attacked some of his troops.

12     The troops that were under General Strugar's command.  This was something

13     he would not tolerate.  And he responded by firing on the city of

14     Dubrovnik."

15             The transcript page is 1716.

16             The Defence also wishes to point out in relation to the

17     Strugar-Doyle meeting one thing that is particularly important.  Strugar

18     and Doyle communicated through an interpreter.  Objectively speaking, we

19     must raise the following issue:  Was everything interpreted in its

20     entirety?  Did Strugar actually use the words in the same way as they

21     were rendered to Colm Doyle.  When Doyle remembers that particular

22     conversation he claims he cannot remember the exact words used by Strugar

23     or those conveyed by the interpreter, meaning there was no direct

24     communication.

25              Colm Doyle took no notes and wrote down no details of that

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 1     meeting.  The Defence would particularly like to point out that Doyle

 2     does not say a single word about Srdj [Realtime transcript read in error

 3     "search"], not a single word about the attack on Srdj.  No mention at

 4     all -- for the sake of the transcript, it reads search, the English word

 5     search as opposed to B/C/S Srdj which is the name of the hill, that at

 6     0320, Srdj is a place name.  This is a hill above Dubrovnik.

 7             I will repeat this.  The Defence would particularly like to point

 8     out that Doyle does not say a single word about Srdj, not a single word

 9     about the attack on Srdj.

10             No mention at all of Croatia's paramilitary units.

11             The Trial Chamber, heard the following words:  "Opened fire on

12     the city of Dubrovnik," and that was a quote.  The interpretation

13     provided by the Trial Chamber is quite random.  It draws the inference

14     based on those words that Strugar issued an order to attack Srdj.

15     Moreover, the Trial Chamber finds these words to be an unequivocal

16     admission on the part of General Strugar that he issued an order to

17     attack Srdj.  This is a sentence recorded by Mr. Doyle to the

18     Trial Chamber, however, based on this, all that any reasonable trier of

19     fact could find is that Strugar was angry that paramilitary units in

20     Bosnia and Herzegovina had attacked JNA units under Strugar's command.

21             Another possible inference would be that as a response to those

22     attacks, fire was opened on Dubrovnik.  Nevertheless, one thing that is

23     impossible to find based on this evidence is that Strugar actually issued

24     an order to attack Srdj on the 5th of December, 1991.

25             Witness Doyle talks about Bosnia alone, and about the attack

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 1     carried out by paramilitary units in that republic.  Doyle is unambiguous

 2     about the fact that Strugar never specified the paramilitary units in

 3     question.  Doyle does not even utter the word "Srdj."  Doyle probably

 4     doesn't even know where Srdj is.

 5             Witness Doyle knows nothing about any order allegedly issued by

 6     Strugar to open fire.  Doyle knows nothing about what the potential

 7     targets of such an attack might be.  Strugar never specified any order

 8     given, nor indeed does Doyle address this.  Doyle's impression is that

 9     Strugar talks about opening fire in an entirely generic way.  Doyle

10     unequivocally states this in his evidence before the Trial Chamber.

11     Doyle also confirms that in actual fact, he no longer even remembers the

12     exact words spoken by Strugar.

13             Doyle's evidence is full of impressions and assumptions.  Doyle

14     provides assumptions about Strugar's moods and the reasons for those

15     moods or dispositions.  He provides assumptions about where exactly

16     Strugar's units had been attacked.  He provides assumptions about what

17     sort of an order Strugar had issued in relation to Dubrovnik itself.

18             However, all Colonel Doyle provided are fragments of vague

19     memories based on which the Trial Chamber puts together an entire

20     construct of erroneous and impossible findings.  Doyle's evidence does

21     not even provide a decent basis for one of the most far-reaching findings

22     in the judgement itself.  This is a finding on which the responsibility

23     of my client was found to be based.

24             The Trial Chamber finds, based on Doyle's evidence, that Strugar

25     must have ordered the attack simply because the attack occurred.  We

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 1     believe this finding by the Trial Chamber to be untenable.  The fact that

 2     the attack eventually occurred says nothing about the circumstances of

 3     the attack on Srdj, nor indeed does it tell us anything about the role of

 4     Pavle Strugar.  The attack on Dubrovnik and the attack on Srdj are not

 5     the same thing nor can they ever be.

 6             One thing that remains unclear is this:  The peak of that hill

 7     has an altitude of 400 metres above sea level and above Dubrovnik, there

 8     is nothing there apart from the repeater and the -- and the final stop of

 9     a cable car from Dubrovnik.  Yet the Trial Chamber sees this as being

10     identical to the city of Dubrovnik itself simply because when Doyle says

11     Srdj, this is taken by the Trial Chamber to mean the same as Dubrovnik.

12     There is no evidence at all that was presented during trial to suggest

13     that the words Dubrovnik and Srdj mean the same thing and that when Srdj

14     is used, Dubrovnik is what is meant.  Nothing at all to suggest that.

15             If we look at the findings of the Trial Chamber, it would seem

16     that their interpretation was that Strugar's aim was to conceal the real

17     intention behind the attack that he allegedly issued, the taking of the

18     facilities in Srdj and that is why Strugar never tells him that he was

19     attacking Srdj, a hill above the town, but rather spoke of the city of

20     Dubrovnik as the target of the attack which was potentially beyond the

21     pale.

22             Based upon what Strugar did not say, the finding is reached about

23     an attack on a legitimate military target which is a target that

24     allegedly Strugar kept silent about.  All this is interpreted by the

25     Trial Chamber as a direct admission by Strugar.

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 1             The Chamber even goes as far as to establish that Strugar was

 2     nervous during the meeting.  It was Strugar's apparent mood that led them

 3     to establish that his dissatisfaction was directly linked to the progress

 4     of an action that he had allegedly ordered.  It is particularly difficult

 5     to believe that Strugar gave this admission as the Trial Chamber

 6     interprets the conversation between Strugar and Doyle to a military

 7     observer, an officer of the Irish army whom he had never before set eyes

 8     on.

 9             Equally noteworthy is the moment when allegedly Strugar made this

10     admission.  The alleged admission was made at a moment in relation to

11     which the Trial Chamber finds that Strugar had already known about the

12     fact that the Old Town had been targeted and hit.  By this time, the

13     Trial Chamber finds that he had been summoned to Belgrade by the Defence

14     minister General Kadijevic and the chief of general staff of the JNA.  He

15     was summoned to discuss developments around Dubrovnik that morning.  The

16     Trial Chamber goes on to establish that Strugar, by this time, must have

17     been fully aware of the extent of the problem.

18             In the interpretation of the Trial Chamber, this was an admission

19     that Strugar made at the time under the circumstances described.

20             Furthermore, it is noteworthy that the Trial Chamber finds that

21     at 11.15 on the 6th of December, Strugar allegedly ordered a cease-fire.

22     Following that order, the intensity of shelling in Dubrovnik diminished.

23     Therefore, bearing in mind the aforementioned, a mere 45 minutes before

24     his meeting with Doyle, Strugar had ordered a cease-fire.  The Chamber

25     finds that the meeting with Doyle took place at about 1200 hours.

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 1     Nevertheless, the Trial Chamber believes that regardless of the fact that

 2     a cease-fire had been ordered, Strugar was still using Doyle's presence

 3     to inform him that an attack was in progress as they spoke which he had

 4     personally ordered.

 5             Another thing that is noteworthy is the fact that Strugar

 6     "admits" to an Irish officer that he had ordered an attack yet at the

 7     same time, the Trial Chamber finds that Strugar was allegedly concocting

 8     a plan with Admiral Jokic for a cover-up of everything that had occurred

 9     and a plan of how to shift responsibility to Captain Kovacevic.

10             Admiral Jokic and Strugar that afternoon, the 6th of December,

11     1991, are on their way to see Federal Minister Kadijevic, the supreme

12     military leader of the country.  Admiral Jokic now tells him that the

13     attack on Srdj was a wanton attack launched by Captain Kovacevic.  How

14     could Strugar possibly have admitted to an officer of the Irish army that

15     he had ordered an attack while at the same time he was trying to conceal

16     the truth on this alleged attack from the Defence Minister of Yugoslavia

17     and the Chief of Staff of the JNA?

18             The Trial Chamber reached a conclusion that is simply not

19     credible.  Strugar makes an admission to this Irish military officer.  He

20     admits that he ordered the attack, yet he does his best to conceal this

21     same fact from the top-most leadership of the JNA.  How credible is it

22     that Strugar would choose to speak in confidence to a high-ranking member

23     of the European monitoring mission in Yugoslavia who also happened to be

24     in daily contact with high-ranking JNA officers?  This is obvious based

25     on a number of different witnesses and testimonies in this case.

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 1             It is quite certain that they would have conveyed to him what

 2     they found out from Strugar through these contacts.

 3             JUDGE MERON:  Could I simply ask the counsel to be so kind when

 4     he makes references to something that the Trial Chamber did, could he

 5     refer to the specific paragraphs in the judgement.

 6             MR. RODIC: [Interpretation] Your Honours, those are paragraphs in

 7     the Trial Chamber's judgement beginning with 164 through 169.

 8             Is this answer to your satisfaction, Your Honour?

 9             JUDGE MERON:  Yes.

10             JUDGE VAZ: [Interpretation] Please continue.

11             MR. RODIC: [Interpretation] The Trial Chamber does not invoke any

12     other evidence whatsoever nor does it provide answers to a whole series

13     of questions that are thereby opened only on the basis of the finding

14     that allegedly Strugar ordered an attack on the Old Town.

15             Why did Strugar have to order this attack precisely on the 5th of

16     December?  To whom did he issue this order?  Who received the order to

17     attack?  How did Strugar pass this order on?  What was contained in the

18     order to attack, allegedly issued by Strugar?  What were the targets of

19     attack?  At what time was the attack to be committed?  With what

20     resources?  Which units were to be involved?  On what axis?  We do not

21     know whether in this alleged order to attack Srdj, Strugar similarly to

22     his prior conduct and the current and valid order on the cease-fire and

23     prohibition of shelling of the Old Town of the 11th of November, 1991,

24     this time too he ordered that the Old Town must not be shelled.  All

25     these are questions that the Trial Chamber does not answer in its

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 1     judgement.

 2             The Trial Chamber attempts to corroborate its finding on the

 3     alleged order by Strugar by the assertion that it is logical that Strugar

 4     ordered the attack to capture Srdj because it is in keeping with the

 5     military realities of the JNA.

 6             First and foremost, the Chamber has no evidence about military

 7     realities of the JNA and what they are.  It relies solely on conjecture.

 8     If it is assumed that there is a relationship of subordination between

 9     the 9th Military Naval Sector and Commander Jokic and the 2nd Operations

10     Group commanded by Strugar, then everything undertaken by the 9th

11     Military Naval Sector must be in keeping with orders from the

12     2nd Operations Group.

13             If we accept that this is the logic lying in the foundations of

14     the JNA, and that this is the so-called military reality of the JNA, and

15     if this logic were to be accepted unconditionally and automatically as

16     the Trial Chamber accepts it, then the only possible conclusion would be

17     that the attack on Srdj was ordered by the Minister for Defence and the

18     JNA General Staff.  Because if it is inconceivable, in the opinion of the

19     Trial Chamber, that a unit at corps level launches an action without an

20     order from the unit at army level to which it belongs, then it is equally

21     inconceivable that a strategic group at the level of army implements an

22     action without orders from the General Staff of the JNA and the

23     Minister of Defence personally.

24             What we have here is an action by two armed task forces with less

25     than 40 men who were supposed to capture a feature by surprise attack.

Page 96

 1     The Defence emphasises that the military realities of the JNA call for an

 2     analysis of this specific situation.  There is nothing automatic about

 3     it.  There is only an analysis to be made of the various roles of

 4     protagonists of the events of the 6th of December, 1991.

 5             Concluding that Strugar ordered something because that would be

 6     logical is not a finding beyond any reasonable doubt.  The Defence

 7     asserts that not a single reasonable trier of fact could make a finding

 8     made by this Trial Chamber regarding the order to attack Srdj.

 9             It is of decisive importance for establishing the command

10     responsibility of Strugar for the actions of his subordinates to

11     establish whether Strugar ordered this attack.  It is on this fact that

12     the finding whether Strugar is one of the people responsible for the

13     events of the 6th of December, 1991, depends.  Without this fact, any

14     person, and every person in the chain of command would be responsible for

15     every action perpetrated within the military structure.

16             The Defence concludes that the finding that Strugar ordered the

17     attack on Srdj that should have been launched on the 6th of December,

18     1991, is impossible.  Equally impossible is the finding that Strugar

19     ordered it on the 5th December.

20             This is also confirmed by erroneous findings of the Trial Chamber

21     regarding important facts contained in the evidence of Admiral Jokic and

22     the entire approach of the Trial Chamber to this evidence.

23             First of all, there are numerous contradictions in the testimony

24     of Jokic that are most frequently manifested in the fact that regarding

25     one event or one fact, he has several versions.  For instance, his

Page 97

 1     presence at the meeting at the forward command post of the 9th Military

 2     Naval Sector in Kupari on the 5th of December, 1991.  It is typical that

 3     in several places in the judgement, the Trial Chamber qualifies Jokic's

 4     testimony as, I quote:  "Certain aspects of Jokic's testimony can be

 5     qualified as less than satisfactory."  Further on:  "It is difficult to

 6     accept all the claims made by Jokic on his actions that morning."

 7     Further on:  "The Trial Chamber does not reject Jokic's explanation out

 8     of hand but believes it is not credible."

 9             Next quotation, "The Federal Secretariat for National Defence was

10     informed briefly by Jokic about the damage and actions of the 6th

11     December in a way that was rather inconsistent with facts."

12             Next quotation, "Jokic's explanation why he failed to take

13     disciplinary measures is not believable, is not persuasive."

14             Another quotation, "The Trial Chamber has the reservations

15     regarding what was discussed exactly when Jokic made his report."

16             These are only some of the qualifications made by the

17     Trial Chamber of Jokic's testimony indicating that the Trial Chamber did

18     not believe Jokic when he testified about important facts.

19             JUDGE VAZ: [Interpretation] Please, could you give us a reference

20     each time you quote something?  Thank you.

21             MR. RODIC: [Interpretation] These quotations are in the following

22     paragraphs of the judgement:  152, 153, 97, 174 -- 174 and 82.

23             JUDGE VAZ: [Interpretation] Thank you.  You may proceed.

24             MR. RODIC: [Interpretation] Thank you.

25             As I was saying, these were only some of the qualifications of

Page 98

 1     Jokic's testimony made by the Trial Chamber indicating that the

 2     Trial Chamber did not believe Jokic when he was testifying about

 3     important facts.  However, there was not a single case when the

 4     Trial Chamber said that it was untruthful testimony or that Jokic had

 5     vested interests as a witness, something that the Trial Chamber did in

 6     other cases.

 7             For instance, for the reasons explained earlier, in relation to

 8     the testimony of Lieutenant-Colonel Jovanovic, commander of the 3rd

 9     Battalion of the 5th Motorised Brigade of the 9th Military Naval Sector

10     who says emphatically that General Jokic was present at the meeting in

11     Kupari on the 5th of December when Captain Kovacevic made his proposal to

12     attack Srdj, the Trial Chamber states, I quote:  "The Trial Chamber does

13     not accept that this testimony is truthful."  Paragraph 98 in the

14     judgement.

15             No reasons are stated why this testimony was found to be

16     untruthful.  Objectively, this would be difficult to explain since the

17     Trial Chamber admitted into evidence the written report that

18     Lieutenant-Colonel Jovanovic made to the superior commander on the 6th of

19     December referring, again, to Jokic's presence at the meeting in Kupari

20     on the 5th of December.

21             But in paragraph 98 -- 88 of the judgement, the Trial Chamber

22     states:  "The issue whether Jokic was at the meeting in Kupari is not a

23     key issue although it is relevant, this issue has a relevance -- although

24     it has relevance, it is not determinative of the Chamber's decision."

25             Also in paragraph 339 of the judgement, I quote:  "In the finding

Page 99

 1     of the Trial Chamber, evidence indicates that the detailed planning for

 2     the implementation of this order," and the order to attack Srdj was

 3     meant, "the accused left it to the 9th Military Naval Sector which had

 4     geographical responsibility for Dubrovnik and its surrounds.  There are

 5     unresolved issues about the role of the commander of the 9th Military

 6     Naval Sector; however, in the opinion of the Trial Chamber, actively

 7     involved were Chief of Staff Warship-Captain Zec and other staff officers

 8     were active in the planning and execution of the order both on the 5th

 9     and 6th December, 1991."

10             The Defence believes this finding of the Trial Chamber is

11     erroneous when the Trial Chamber holds that Jokic's presence at the

12     meeting in Kupari on the 5th December is not determinative for the

13     Trial Chamber's decision.  As the Defence emphasised in the appeal,

14     Strugar denies that he ordered the attack on Srdj and Jokic's presence at

15     the meeting in Kupari would confirm that he both -- that he participated

16     both in the planning and the implementation of the attack on Srdj.

17             When the Trial Chamber elaborates on military realities in the

18     JNA in this context, it is necessary to emphasise the following findings

19     of fact made by the Trial Chamber, namely that Jokic's Chief of Staff,

20     Frigate Captain Zec, participated in the planning of the attack on Srdj,

21     paragraph 87 and 88.  That he personally brought the equipment for the

22     attack, paragraph 88.  That Zec was presented at Zarkovica throughout the

23     day, meaning the 6th of December, 1991.  Paragraph 126.

24             That not even when Zec returned to Zarkovica after a 30-minute

25     meeting with Jokic in saftat [phoen] did the attack on Srdj cease.

Page 100

 1     Witness Kurdulija.  That Zec, upon returning to Zarkovica looks for

 2     engineers with explosives to complete the action, Exhibit D96, 1330

 3     hours.  All that time, Jokic avoids informing Strugar of these events

 4     believing that, as he says, the latter has more important things to do.

 5             Everything seems to indicate that the attack was ordered and

 6     planned within the 9th Military Naval Sector without a single piece of

 7     evidence about the involvement of General Strugar in the ordering and

 8     execution of that attack.

 9             The Trial Chamber does not lend credence even to the second

10     version presented by Jokic concerning the attack on Srdj; namely, that

11     the planning and ordering of this action was deliberately concealed from

12     him, paragraph 437 of the judgement.

13             The Trial Chamber states the following reason:  "If it had been

14     that way, the conduct of his Chief of Staff Frigate Captain Zec would

15     have called for the most severe disciplinary action, their personal and

16     professional relationship would have been shattered, yet no action was

17     taken and both the admiral and Warship-Captain Zec continued in their

18     previous roles as commander and Chief of Staff of the 9th Military Naval

19     District."

20             It is curious, thus, nothing was held back from Jokic and yet the

21     Trial Chamber erroneously holds that it is not determinative for the

22     Trial Chamber's decision in this case and that the question of Jokic's

23     presence at the meeting in Kupari on the 5th of December, 1991, remains

24     open.

25             After Jokic's investigation on the 6th of December, or rather,

Page 101

 1     what had happened on the 6th of December, the only consequence is that

 2     Lieutenant-Colonel Jovanovic was urgently replaced, that is the witness

 3     who testified that Jokic attended the meeting on the 5th of December.

 4             As for Lieutenant-Colonel Jovanovic, the Trial Chamber

 5     established that he could not have taken action against the old city and

 6     that is also what Admiral Jokic knows.  Bearing in mind the

 7     aforementioned, when one knows that the Prosecution withdrew the charges

 8     Warship-Captain Zec in 2003, also that Captain Kovacevic was declared

 9     incompetent to stand trial, unfit for trial, and that the judgement is

10     based on the erroneous finding of the Trial Chamber that Strugar ordered

11     the attack on Srdj, the Defence therefore believes that it is impossible

12     to find that Strugar ordered the attack on Srdj that was supposed to be

13     carried out on the 6th of December 1991 and also that Strugar attacked --

14     ordered that attack on the 5th of December, 1991.

15             The Supreme Command and the punishment for the 6th of December,

16     1991.  Another subject that the Defence particularly wishes to deal with

17     is the question of the attitude of the Supreme Command of the JNA and the

18     protagonists of the events around Dubrovnik on the 6th of December, 1991.

19             The Defence claimed that the investigation on the events of the

20     6th of December, 1991, or rather that the investigation on these events

21     was taken over by the Supreme Command of the JNA, that the

22     Supreme Command ordered Jokic to carry out an investigation, that

23     Admiral Jokic upon orders of the Supreme Command carried out an

24     investigation and informed the command about the results.

25             All the reasons leading to such a conclusion were before the

Page 102

 1     Trial Chamber.  There was not a single other reason to conclude otherwise

 2     in the first instance proceedings.

 3             The order of the Supreme Command and the investigation carried

 4     out by Admiral Jokic excluded Strugar from the process of investigation

 5     and punishment.  This rendered non-existent his material possibility to

 6     punish the perpetrators or his responsibility for -- failure to punish

 7     the perpetrators of the crime.

 8             The federal minister of defence ordered an urgent investigation

 9     and punishment of the perpetrators.  Federal Minister Kadijevic ordered

10     Jokic and Strugar to come to Belgrade on that day, the 6th of December,

11     1991, in order to report.

12             Kadijevic ordered that Admiral Jokic carry out the investigation.

13     That was a logical choice in view of the fact that all the units that

14     took part in the said events were under his command.  That is accepted by

15     the Trial Chamber as well.

16             Federal Minister Kadijevic informed five ambassadors of western

17     countries on the same day, on the 6th of December, 1991, that he ordered

18     an investigation and that whoever violated an order would be arrested and

19     punished.  All of this is contained in the case files.  These facts are

20     not denied by the Trial Chamber either.

21             The Trial Chamber finds that on orders from Kadijevic, Jokic

22     takes specific steps in the investigation that had been ordered.  He asks

23     for reports from higher-ranking officers of his command.  He replaces the

24     commander of the 3rd Battalion of the 5th Motorised Brigade,

25     Lieutenant-Colonel Jovanovic.  Jokic takes statements from the commanders

Page 103

 1     of companies that took part in the attack, precisely those company

 2     commanders that had the equipment that could imperil the old city,

 3     specifically Captain Nesic, the commander of anti-armour company from

 4     Zarkovica, and Jeremic, the commander of the 120-millimetre mortar

 5     battery.

 6             Admiral Jokic also calls Captain Kovacevic, who, together with

 7     Captains Nesic and Jeremic and 8th of December, 1991, come to the staff

 8     of the 9th Military Naval Sector.  The report of Captain Nesic is

 9     contained in the case file.

10             The commander of the 3rd Battalion of the 5th Motorised Brigade,

11     Lieutenant-Colonel Jovanovic who was replaced by Jokic on the 6th of

12     December, 1991, was also asked to make a statement at the command of the

13     9th Military Naval Sector about what had happened on that day, the 6th of

14     December, 1991.

15             Lieutenant-Colonel Jovanovic makes this statement already on the

16     6th of December, 1991, at 1400 hours at the command of the 9th Military

17     Naval Sector where he had been asked to come.  That is the statement

18     where he mentions that Admiral Jokic indeed on the 5th of December was at

19     the meeting in Kupari when the order on Srdj was planned and ordered.

20             Acting on Kadijevic's orders, Admiral Jokic informs the

21     General Staff of the JNA, namely, the operations department of the JNA,

22     about what happened on the 6th of December, 1991, the measures that he

23     took, and the measures that he intends to take.  Admiral Jokic acting on

24     Kadijevic's orders established a commission of high-ranking officers of

25     the 9th Military Naval Sector that he sent to Dubrovnik in order to

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 1     establish what the damage incurred was.

 2             On the 9th of December, 1991, Jokic sends a report to the

 3     Supreme Command.  In this report, Jokic informs Admiral Brovet, the

 4     deputy federal minister of defence, about the following:  That in the 9th

 5     Military Naval Sector a commission was established in order to determine

 6     the circumstances and damage inflicted upon the old city and that that

 7     commission toured the old city of Dubrovnik on the 8th of December, 1991.

 8             Furthermore, that the commission established that many buildings

 9     mentioned in this report were damaged.  Furthermore, that the registered

10     damage is not of larger proportions.  Further on, that they cannot

11     establish the origin of the damage.  Also, that they cannot establish who

12     the perpetrators of the damage inflicted upon the Old Town of Dubrovnik

13     are.

14             Along with this report, Admiral Jokic submits to Brovet, or

15     rather, to Kadijevic a video cassette that the commission taped on the

16     damage inflicted upon the old city on the 6th of December, 1991.  There

17     are many other circumstances that speak of the measures and activities

18     taken by Admiral Jokic.

19             The key fact is that Veljko Kadijevic, federal secretary for

20     national defence, ordered Admiral Jokic to conduct an investigation on

21     the events of the 6th of December, 1991.  The Defence believes that this

22     fact is of key importance for assessing the role of Strugar in the

23     investigation and punishment.  There is not a shred of evidence that

24     Strugar was ordered to take part in the investigation.  There is not a

25     single reason to believe that Strugar believed that he should carry out

Page 105

 1     the investigation.  There is not a single reason for Strugar to believe

 2     that he should be involved in this investigation.

 3             In Strugar's presence, the man who embodies the Supreme Command

 4     of the JNA issues an order to Admiral Jokic to carry out an investigation

 5     and report on its results.  The effect of the order of the

 6     Supreme Command to Admiral Jokic to conduct an investigation abolishes

 7     every possibility for Strugar to conduct some parallel investigation of

 8     his own apart from the investigation that is carried out upon orders from

 9     the highest instance in the JNA.  The effect of the order of the

10     Supreme Command to Admiral Jokic to conduct an investigation has the

11     effect of a ban on anyone else carrying out the investigation.

12             The principle of singleness of command in the JNA does not allow

13     for the possibility that two identical tasks can be issued to two

14     different units or commands to be carried out along parallel lines.  That

15     is confirmed by the behaviour of Admiral Jokic who submits all reports in

16     relation to the undertaken investigation only to the Supreme Command.  He

17     did not submit these reports on the investigation carried out to Strugar.

18             The Trial Chamber finds something that not a single trier of fact

19     could find, that the order of Kadijevic does not mean anything for

20     Strugar, and that he should carry out his own investigation regardless of

21     the direct and explicit order of the highest commander of the JNA.  As a

22     matter of fact, the Trial Chamber even believes that Strugar was supposed

23     to oppose Kadijevic's order or to conduct a parallel investigation.

24             This kind of a position taken by the Trial Chamber is in

25     fundamental disagreement with the basic postulates upon which military

Page 106

 1     organisations rests.  An order in an army, especially an order of the

 2     Supreme Military Command is not subject to discussion, debate, and

 3     non-acceptance.  The only order that can be refused is an order to commit

 4     a crime which was not the substance of Kadijevic's order to Strugar.

 5             The key factor that led the Trial Chamber to believe that Strugar

 6     did not carry out the investigation is the alleged confession made to

 7     Colm Doyle that he had ordered the attack against Srdj which again closes

 8     the circle of illogical, impossible and unreasonable findings brought by

 9     the Trial Chamber.  The Defence claims that not a -- that no reasonable

10     trier of fact can conclude that Strugar had the material possibility to

11     carry out an investigation and punish the perpetrators of the events of

12     the 6th of December, 1991, primarily in view of the reasons pertaining to

13     the role of the Supreme Command of the JNA in the matter.

14             The Appeals Chamber asked in writing for clarification regarding

15     the civilian status of Mato Valjalo and Ivo Vlasica, and that is to say

16     the civilians who on the 6th of December, 1991, were injured in the old

17     city.  The Defence is going to state its views on that as well.

18             The findings of the Trial Chamber are also erroneous in relation

19     to the civilian status of Mato Valjalo on the 6th of December, 1991, when

20     he was allegedly wounded in the old city because this is not adequate in

21     terms of the evidence presented.

22             As for Ivo Vlasica, the polemic on the type of injuries sustained

23     by him was brought to an end when error number 43 in paragraph 61 was

24     withdrawn in the appeal brief of the Defence.  Sorry, my mistake, it is

25     53.

Page 107

 1             The Defence only challenges the status of Mato Valjalo.  Valjalo

 2     testified that on the 6th of December, 1991, in the morning, he was

 3     returning home after his tour of duty at the Crisis Staff.  The evidence

 4     accepted by the Trial Chamber indicates that Mato Valjalo was assigned to

 5     work at the Crisis Staff and that during the attack against Dubrovnik he

 6     drove members of the Crisis Staff to different war assignments.  That

 7     means that from the 15th of September, 1991, Mato Valjalo was mobilised

 8     and engaged from a military point of view.  That also means that

 9     Mato Valjalo was allegedly wounded as he was returning from a duty that

10     is directly related to the war effort of one of the warring parties.

11     That fact denies his status of a civilian person.  All of this is

12     confirmed by the decision made by the secretariat for health, social

13     welfare, labour, veterans and invalids affairs, the administration for

14     veterans and invalid affairs, recognising to Mato Valjalo the status of a

15     military -- war military invalid.

16             That decision was issued in a procedure prescribed by law by the

17     state organ in charge.  The Defence recalls that in the Official Gazette

18     of the Republic of Croatia, where laws are published as well as other

19     legal decisions, it is called Narodne Novine, the number is 33/92 dated

20     the 12th of June, 1992.  In this official gazette, the Law on the

21     Protection of Military and Civilian War Invalids was published.

22     According to that law, there are the following categories of persons that

23     are given protection:  War military invalid, peacetime military invalid

24     and civilian invalids of war.

25             Civilian invalids of war, according to Article 8, paragraph 1,

Page 108

 1     item 2 of the mentioned law are persons whose organism sustained injuries

 2     up to 20 per cent due to their injuries related to war incidents,

 3     bombing, the explosion of ordinance, a stray bullet, and the like.

 4             It is obvious that Mato Valjalo does not belong to that category,

 5     a civilian invalid of war, or rather, that he did not have the status of

 6     a civilian when he was wounded.

 7             If we try to remain consistent with the provisions of this law,

 8     the conclusion would be different because he was recognised as a military

 9     war invalid and the last thing that I wish to point out, in particular,

10     is that the sentencing issue.  The Defence also wishes to point out

11     certain errors in sentencing that the Trial Chamber made in relation to

12     General Strugar.

13             When determining a sentence, the Trial Chamber failed to take

14     into account certain facts or did not give sufficient weight to certain

15     facts and circumstances that had to be taken into account when imposing a

16     sentence.  The Trial Chamber was wrong to dismiss Strugar's expression of

17     remorse, and sincere regret.  The alleged role of the accused in the

18     attack on Srdj cannot be used in this argument to dismiss his remorse.

19             The Trial Chamber repeatedly established that the Old Town was

20     not the target of the attack allegedly ordered by Strugar.  The Defence

21     further believes that the Trial Chamber failed to give sufficient and

22     appropriate weight to General Strugar's sincere remorse over the

23     suffering of the people in Dubrovnik which General Strugar expressed to

24     the Trial Chamber.

25             The Trial Chamber took into account as mitigating circumstances

Page 109

 1     his personal and family situation, his good character, and his voluntary

 2     surrender.

 3             The Defence believes that the Trial Chamber gave insufficient

 4     weight to these mitigating factors.  The eight-year sentence imposed on

 5     Strugar had to be mitigated by an appropriate assessment of the meaning

 6     of the mitigating circumstances.

 7             The Trial Chamber also erred when it failed to take into account

 8     as a special mitigating circumstance the serious health conditions of

 9     Pavle Strugar, something that must be taken into account as a special and

10     exceptional mitigating circumstance.

11             In addition to vascular dementia, memory loss and depression, as

12     stated in the judgement, at the same time, Strugar suffers from a chronic

13     insufficiency of the kidney, bilateral nephrotic disruptions to the

14     functioning of the kidney, spondylosis of the neck and arthrosis,

15     spondyloarthrosis of the lower spinal column, osteoarthrosis of the hips,

16     prostatic adenoma and ulcer.  Evidence had already been led on all these

17     at the time the sentence was reached.

18             The medical experts of both the Defence and the Prosecution

19     established a prognosis as to Mr. Strugar's general state of health.

20     There has been a constant and ongoing deterioration.  The fact is in

21     evidence that in December 2005, Mr. Strugar underwent surgery in

22     Podgorica during which he was given an artificial right hip.  Based on a

23     neuropsychological report of the Neurology Institute of Serbia's KC from

24     April 2006, it is obvious that Strugar suffered further deterioration of

25     his already impaired visual perceptive and construction abilities in

Page 110

 1     terms of 3D perception, that his attention span was further shortened and

 2     impaired as well as his phonemic fluency.

 3             Now, in relation to all phonemes.  There is a delay in his powers

 4     of verbal recall and his executive functioning also shows a deterioration

 5     in relation to the time at which previous tests were conducted.

 6             Likewise, there is a specialist report by a urologist from the

 7     same period in 2006 confirming all his chronic conditions and problems

 8     with the kidneys and prostate.  All of the findings from that period were

 9     tendered into evidence in a Defence filing, a confidential Defence filing

10     dated the 11th of September, 2006.  Further, there was a detailed

11     institute drawn up by the Institute for Orthopaedics and Traumatology of

12     Serbia's KC dated the 8th of May, 2007.

13             Pavle Strugar received a recommendation for surgical treatment of

14     both knees and the left hip in the sense of being given a full implant.

15     Serious degenerative changes down the entire length of the neck section

16     of his spine were established.  At level C-5 and C-6, there is hardly any

17     joint room left.  At levels C-6 and C-7, there is no joint room left at

18     all and this area is also affected by severe ankylosis.

19             Likewise, there is an LS image of his spine showing degenerations

20     to all of his vertebra.  At the L-5 level, there is discarthrosis.  This

21     is another report that was tendered by the Defence in a filing dated the

22     10th of May, 2007.

23             Another thing that warrants pointing out is the report which is a

24     summary of the health situation of Mr. Strugar drawn up by Dr. Falke from

25     the UN detention unit on the 21st of January, 2008.  This report confirms

Page 111

 1     all the conditions found in Mr. Strugar.  Based on all of this, the

 2     Defence submits that Mr. Strugar's health is something that must be taken

 3     into account as a special mitigating circumstance and given appropriate

 4     weight.

 5             The Defence believes that Mr. Strugar's health is an exceptional

 6     situation, constitutes an exception, especially in view of the position

 7     put forward by the Appeals Chamber.  The Trial Chamber erred as it failed

 8     to take into account as a mitigating circumstance, Pavle Strugar's age.

 9             In two and a half months, Strugar will be turning 75.  As stated

10     in the Plavcic sentence, it is indisputable that a weakening of the body

11     that can be a result of aging often leads to additional difficulty in

12     serving a sentence.  It is more difficult for an elderly person to serve

13     a sentence than for a younger person.  It is just as indisputable that

14     once an aged person is released, they do not have much of a chance of a

15     decent life afterwards.

16             In Strugar's case, a weakening of the body is particularly

17     prominent because of his many illnesses that have been diagnosed.

18     Bearing in mind his age and his poor health, and in view of the sentence

19     that was imposed, objectively speaking, Strugar has no hope of a quality

20     life once he is released, if, indeed, he is ever released while still

21     alive.

22             One thing is the his age and the other is the progress --

23             JUDGE VAZ: [Interpretation] How much more time do you need,

24     because we will have to break in two minutes.

25             MR. RODIC: [Interpretation] Your Honour, I'm about to conclude in

Page 112

 1     two or three minutes, if I may be allowed to continue for that long.

 2             JUDGE VAZ: [Interpretation] Very well.  Please proceed.

 3             MR. RODIC: [Interpretation] There is Strugar's age on the one

 4     hand and the progress of his illness on the other, and both have been

 5     predicted by medical experts.  Any prolonged stay in prison would be

 6     filled with pain, humiliation and suffering.  He also has a wife that he

 7     is emotionally attached to and has been married to for over 50 years.

 8     She is also suffering from a number of serious health conditions and has

 9     been unable to visit him for a number of years now.  It is because of all

10     this that the Defence believes that Strugar's case has all the hallmarks

11     of an exceptional case where factors such as age and poor health must be

12     taken into account as a significant mitigating circumstance.

13             The Defence believes that the Trial Chamber failed to impose an

14     appropriate sentence on Strugar by disregarding a number of mitigating

15     circumstances altogether while awarding insufficient weight to others.

16             The Defence believes that were the facts of the case properly

17     assessed and all the mitigating circumstances taken into account, the

18     sentence imposed would be significantly milder or more lenient.

19             The Defence believes that the Appeals Chamber should revise and

20     significantly reduce the sentence imposed on Strugar in the light of this

21     appeal.

22             We also move that the Appeals Chamber consider all errors of law

23     and fact committed by the Trial Chamber and pointed out in the Defence's

24     brief.  The Defence moves that Strugar be acquitted on all charges on

25     which he was found guilty on the 31st of January, 2005.  More

Page 113

 1     specifically, under 7(1) [as interpreted] and 7(3) of the Statute of the

 2     Tribunal, the Defence moves that Strugar be retried or alternatively that

 3     his sentence be significantly reduced.

 4             Thank you.  I'm sorry, I said 7(3) of the Statute of the

 5     Tribunal, not 7(1).  Thank you very much, Your Honours.

 6             JUDGE VAZ: [Interpretation] Thank you, Mr. Rodic.  We are now

 7     going to break for 20 minutes.  We'll resume at 11.35.  Thank you.

 8                           --- Recess taken at 11.15 a.m.

 9                           --- On resuming at 11.40 a.m.

10             JUDGE VAZ: [Interpretation] The hearing is resumed.

11             You have a question, Judge Meron.

12             JUDGE MERON:  Thank you, President.  I have a question to the

13     counsel for the Defence.  I listened in interest to your argument

14     according to which the General Staff ordered Admiral Jokic to carry out

15     an investigation of the totality of the events that took place at the

16     relevant dates.  You argued that once such an order was given to

17     Admiral Jokic, that then under the general principles governing relations

18     within the military, and proper arrangements of order and discipline,

19     General Strugar would have been exonerated from carrying an investigation

20     of his own.

21             Could you elaborate on this a little bit more and also perhaps

22     tell me, tell the Court, why couldn't -- why -- should General Strugar

23     and could he have carried out a sequential investigation of his own,

24     namely after the investigation by Admiral Jokic would have been

25     concluded.

Page 114

 1             Could you give us clarification on this point?

 2             Thank you, President.

 3             JUDGE VAZ: [Interpretation] Mr. Rodic.

 4             MR. RODIC: [Interpretation] I understand your question,

 5     Your Honour.  What I can say is response is this.  As I have already

 6     mentioned, the governing principle of every army that I can say

 7     specifically about the JNA because that was at issue here, the Law on

 8     Defence and the entire legislation governing the operation of the army

 9     and the rules of service as well have as the underlying principle single

10     command and subordination.

11             When the highest level, in this case, it was General Kadijevic as

12     the Supreme Commander and Minister of Defence, issues a direct order to

13     an officer as to what he should do, as he issued an order, in this case,

14     to General Jokic to conduct an investigation, he thereby designated

15     General Jokic for the reason that his units were involved in the event,

16     for the reason that the area is within the territorial coverage of

17     Jokic's units.  He designated him as the most reliable and the most

18     competent to conduct this investigation.

19             The commander of the 2nd Operation Group is dozens of kilometres

20     away in Trebinje, that is the command that commands over several corps.

21             General Jokic, following the same principle of command and

22     singleness of command acted in the way he did, in the way he was ordered.

23     He conducted an investigation, he wrote three reports that he sent

24     directly to General Kadijevic from which he had received his orders

25     whereas he did not even inform General Strugar of this either by sending

Page 115

 1     him a copy of the reports or addressing to him a combat report saying, I

 2     have taken such and such action and reported it to the Supreme Commander,

 3     General Kadijevic.

 4             Therefore, General Strugar was completely out of the picture in

 5     this investigation.  He was completely side-lined by the order of

 6     General Kadijevic and had no access whatsoever to any of the findings of

 7     the investigation.  It was only General Kadijevic, as the minister, and

 8     as the Supreme Commander who was able to change anything in this line of

 9     action or to order a new investigation if he was not satisfied or if he

10     wanted additional information.

11             Therefore, General Strugar could not get involved without express

12     orders and permission because he was present when General Kadijevic gave

13     these orders to General Jokic.

14             Any later investigation, any subsequent investigation would also

15     require orders from the higher level, in this case, General Kadijevic,

16     who issued orders for the first investigation.  Those are certainly the

17     military realities and the military rules in the Yugoslav People's Army

18     that govern this matter and regulate it in this way.  We provided more

19     detailed reasoning and arguments in our appellate brief invoking evidence

20     in this case and jurisprudence in this Tribunal related to the military

21     realities and military practice rules and laws.

22             Let me also draw your attention to something I've mentioned

23     before.  Minister Kadijevic who was in contact with the highest officials

24     of western countries through their ambassadors informed them, based on

25     the findings he received from Jokic.  He informed them of the orders to

Page 116

 1     conduct an investigation and that is also mentioned in our brief.

 2             Thank you, Your Honour.  Would this suffice?

 3             JUDGE VAZ: [Interpretation] Judge Guney has a question.

 4             JUDGE GUNEY: [Interpretation] Mr. Rodic, I listened to your

 5     submissions with great interest, your submissions related to sentencing

 6     and to mitigating circumstances.  Based on your submissions, could we

 7     come to the conclusion that the minimum capacity of Strugar was taken

 8     into account when determining the sentence and when establishing

 9     mitigating circumstances?  Thank you.

10             MR. RODIC: [Interpretation] Your Honour, it is true that in the

11     Trial Chamber's judgement, it is stated that one of the mitigating

12     circumstances was the poor health of General Strugar, specifically

13     vascular dementia, memory loss, and depression.  That is what is stated

14     in the trial judgement.  However, it is the position of the Defence that

15     although at the moment of sentencing the Trial Chamber was aware that

16     Strugar also suffers from various other health conditions, which in their

17     totality, together with the two specifically named by the Trial Chamber,

18     amount to extremely poor and deteriorating health.  The Defence believes

19     that the Trial Chamber did not lend sufficient weight to all the medical

20     evidence before them and that is why they did not attach sufficient

21     weight to the mitigating circumstances arising from the health condition

22     of General Strugar.

23             We now provided you with additional information from reports

24     dating back to 2005 when an artificial hip was implanted to him.  We

25     provided further evidence of the deterioration of his health since 2005

Page 117

 1     established by later medical examination.  And this deterioration in his

 2     condition is consistent with the testimony of medical experts of the

 3     Defence and the medical experts of the Prosecution saying that as a

 4     result of all his health conditions combined, a further deterioration

 5     would ensue compared to the already poor status of his health.

 6             That is all contained in our brief and in our reports, in our

 7     filings.

 8             JUDGE GUNEY: [Interpretation] Thank you.

 9             JUDGE VAZ: [Interpretation] Thank you.  I have two questions.

10             Firstly, since you have not expanded on the fitness of Strugar to

11     stand trial, can you tell us if you've decided not to raise that point

12     again or is it just that you decided not to deal with that today at this

13     hearing?  And can you also tell us whether General Strugar could not have

14     requested Admiral Jokic's report following the orders of Kadijevic?

15     Couldn't he have requested to see these reports in order to take action

16     possibly?

17             MR. RODIC: [Interpretation] Your Honour, in response to your

18     first question concerning the fitness of General Strugar to stand trial.

19     We have dealt with that in detail in the appellate brief, in our grounds

20     of appeal on the trial judgement, and we have nothing to add today to the

21     arguments presented there.

22             For the sake of expediency and following the guidelines of the

23     Appeals Chamber, we chose to put the emphasis today on other key issues

24     from which all the further errors we quoted in our appellate's brief are

25     derived.

Page 118

 1             In response to your second question, if I understood it properly,

 2     you ask me if General Strugar had been able to request Admiral Jokic's

 3     report following the orders of General Kadijevic.

 4             Did I understand that correctly?

 5             JUDGE VAZ: [Interpretation] I did not ask whether he did it.  I

 6     asked whether he would have been in a position to do it considering the

 7     rules prevailing in the military.  Could he have done it?

 8             MR. RODIC: [Interpretation] Your Honour, in view of the rules

 9     prevailing in the JNA and all the regulations, even if we set aside this

10     particular situation of General Strugar and General Jokic, I will

11     describe to you what the situation is in the Yugoslav People's Army.

12             A superior commander orders a lower commander, a battalion

13     commander or let's say a company commander who is two levels below him to

14     perform a certain task, to submit a report, prepare a report.  The

15     battalion commander who is superior to the company commander but is lower

16     in rank than the brigade commander or the corps commander who issued the

17     task in the first place has no right to get involved.  He has no right to

18     require the person who received the orders to conduct an investigation or

19     prepare a report.  He is not entitled to get involved in the

20     implementation of that order.  According to military regulations, he has

21     no right to do that because that would violate the principle of single

22     command.

23             This has special weight attached to it because in this particular

24     situation, we are dealing with the Supreme Commander who is a superior to

25     all military personnel, all the generals under his command.  So when he

Page 119

 1     issues an order to anyone at a lower level, regardless of how lower, and

 2     tells them that they are to communicate directly with him, without saying

 3     expressly that he is also to inform other units or other persons, then no

 4     one else has the right to get involved in that communication or in the

 5     execution of the order.

 6             JUDGE VAZ: [Interpretation] Thank you, Mr. Rodic.

 7             Judge Meron has an additional question.

 8             JUDGE MERON:  I'm not entirely pleased with the answer you gave

 9     to the question posed by our Presiding Judge.  Her question was not

10     whether General Strugar could get involved in the matter, the question

11     was once the investigation, if I understand it correctly, once the

12     investigation was over, the reports had been written, obviously

13     General Strugar knew about the investigations.  You told us that the

14     order to investigate was in fact given Admiral Jokic in the presence of

15     General Strugar.

16             Once he was in a way interested and involved, couldn't he have

17     asked the General Staff to provide him with copies?

18             MR. RODIC: [Interpretation] Your Honour, in a situation when an

19     order is issued to Admiral Jokic to carry out an investigation, I'm going

20     to describe the situation now.  General Kadijevic calls General Strugar

21     to come with Admiral Jokic to see him in Belgrade and to report to him.

22     The overriding military principle is that the immediate superior of the

23     person who is being called in to report, in this case, it is

24     Admiral Jokic, at that point, Strugar, as commander of the 2nd Operations

25     Group is his immediate superior, so the principle is that Jokic goes

Page 120

 1     along with his immediate superior to report to the ultimate superior.

 2             So when Kadijevic called in Jokic, he observed military

 3     regulations governing reporting.  So Strugar is present with his

 4     subordinate officer when General Kadijevic issues an order directly to

 5     his subordinate Admiral Jokic and makes him the person in charge to

 6     communicate in terms of this order.

 7             General Kadijevic as the Supreme Commander certainly could have,

 8     had he deemed it necessary in that situation, issued an additional order,

 9     namely, you will inform your immediate superior Strugar about what it is

10     you will report to me, in part or in some other way.  However, Kadijevic

11     as the Supreme Commander did not do that.  He took over everything, as

12     well as this direct communication with Admiral Jokic.  So

13     General Strugar, in response to your first question when I was providing

14     an answer, General Strugar really has no possibility, in terms of the

15     principle of singleness in command of the JNA, to interfere and to ask

16     Admiral Jokic, let me see a copy of the report, submit a copy to me too,

17     or to ask Kadijevic to see what it was that Jokic had said.  In both such

18     cases, in terms of singleness of command in the JNA, this would have been

19     held against him, why he was not observing the order that had been issued

20     that did not involve him and that he could not interfere with.

21             Certainly, Kadijevic, as the Supreme Commander had he deemed it

22     necessary, in any form by way of assistance or whatever, he could have,

23     through this order on carrying out an investigation, involved both of

24     them and he could have entrusted it to both of them.  Or, he could have

25     even sent in an independent team of officers independent of the two of

Page 121

 1     them from the secretariat and he could have ordered them to carry out the

 2     investigation.

 3             So my answer is that Strugar, in this situation, in this kind of

 4     a situation, he cannot ask Kadijevic or Jokic about the results of the

 5     investigation carried out.

 6             JUDGE VAZ: [Interpretation] Thank you, Mr. Rodic.  I don't think

 7     there are any further questions from the Bench, I now give the floor to

 8     the Prosecution for their response.

 9             You have an hour to do so.

10             MS. BAIG:  Good afternoon, Your Honours.

11             The Trial Chamber's findings were reasonable and the Defence has

12     failed to show that the Trial Chamber committed any reversible error.  I

13     will address two main issues in ground 1 of the Defence appeal.  First, I

14     will show that the Trial Chamber's finding that the accused ordered the

15     attack on Srdj was supported by the evidence.

16             Second, I will respond to your question concerning the status of

17     the victims.

18             My colleague, Mr. Tracol, will address grounds 2 and 3 of the

19     Defence appeal, and Ms. Brady will speak to sentence, ground 4.

20             Your Honours, the Trial Chamber was correct to find that Strugar

21     ordered the attack on Srdj.  Before I respond to the details of the

22     Defence submissions this morning which concentrate on specific pieces of

23     evidence, I would like to touch on the extensive evidence and factual

24     findings that underlie the Trial Chamber's conclusion that Strugar gave

25     the order for the attack.  These facts fall under three headings:

Page 122

 1     Before, during, and after the attack.

 2             What was happening before the attack is important because it sets

 3     the stage for Strugar's order.  The military realities, the diplomatic

 4     situation and the planning show that the order to attack Srdj originated

 5     at the highest levels of the JNA with the commander of the 2 OG,

 6     General Strugar.

 7             The military realities are important because the JNA operates

 8     under a single unified command.  This is not based on conjecture.  The

 9     Trial Chamber's findings in this regard are based on extensive evidence

10     and I would direct you to paragraphs 393 to 405 of the trial judgement.

11     Singular unified command is essentially a top-down structure where orders

12     are formulated at the top and transmitted down the chain of command to

13     subordinates.  This structure supports the conclusion that the order for

14     the attack originated with Strugar as the commander of the 2nd

15     Operational Group.

16             The diplomatic context is also significant because it too points

17     to high-level authorisation for this attack.  On 23 November 1991, the

18     highest Serbian and Croatian authorities concluded the Geneva Accord

19     which called for an unconditional cease-fire and for the withdrawal of

20     JNA forces from Dubrovnik.  On 5 December, Admiral Jokic, Strugar's

21     subordinate, met with Croatian ministers to iron out the details of this

22     cease-fire which was scheduled to commence on 6 December 1991 at 12.00

23     noon.

24             Against this backdrop, at the brink of the cease-fire, senior

25     officers of the 9 VPS including Jokic's Chief of Staff Zec and

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 1     Captain Kovacevic, who was commander of the 3rd Battalion of the

 2     472nd Motorised Brigade, met in the late afternoon of 5 December in

 3     Kupari.  They devised a coordinated battle plan to seize Mount Srdj

 4     before the cease-fire was to come into effect.  That same evening,

 5     Kovacevic visited Strugar's headquarters.  Much later, Kovacevic met with

 6     his subordinate commanders to inform them about the attack, to pass the

 7     information down the chain.  He told them that the attack had been

 8     approved by "the superior command."

 9             The Trial Chamber concluded that the order could not have

10     originated with anyone other than the commander of the 2 OG given the

11     command structure of the JNA, and particularly in light of the

12     negotiations, in light of that impending cease-fire.

13             I would refer you in this regard, for example, to paragraphs 89

14     and 167 of the judgement.

15             Turning now to the events that took place during the attack

16     itself.  These facts prove that Strugar ordered the attack.  In the early

17     morning of 6 December 1991, ground troops of Kovacevic's battalion

18     commenced their assault against Srdj.  They attracted Croatian defensive

19     fire from the wider town of Dubrovnik.  Instead of responding against

20     Croatian military positions where these military positions were

21     threatening their assault on Srdj, the JNA artillery fired at the

22     Old Town of Dubrovnik.  There were no military targets in the Old Town.

23             The Trial Chamber finds that particularly -- sorry, the

24     Trial Chamber finds at paragraph 345 that they did so deliberately,

25     indiscriminately and extensively over a prolonged period of time.

Page 124

 1             The Old Town was attacked for ten and a half hours on the 6th of

 2     December, 1991, killing and injuring civilians and damaging historically

 3     and culturally important buildings.

 4             It's not surprising that the attack on Dubrovnik immediately

 5     attracted international attention.  At 7.00 a.m., Strugar received a

 6     telephone call from his superior, the federal secretary of national

 7     defence, General Kadijevic who had already received a protest from the

 8     ECMM.  Kadijevic was angry about the course of the events and demanded

 9     that Strugar and Jokic travel to Belgrade that day to report on the

10     attack.

11             In the Trial Chamber's view, and you can find this at paragraph

12     427, the continuation of this attack during the 6th of December was

13     "telling and compelling" evidence of the true state of Strugar's orders.

14     The Trial Chamber found in particular that Strugar did not issue any

15     orders to stop the attack.  If Strugar wasn't responsible for the initial

16     order, then the Trial Chamber would have expected him to stop an

17     unauthorised attack, particularly -- particularly after it started to get

18     in the Trial Chamber's words "gravely out of hand."  If he wasn't

19     responsible for the initial order, he would have put a stop to it.

20             Instead, the Trial Chamber found that between 12.00 and 12.30

21     p.m., Strugar met with Colm Doyle, an ECMM monitor.  He admitted to Doyle

22     at that moment that he fired on the city of Dubrovnik.  This was before

23     he travelled to Belgrade.  This was before the sham investigation.  At

24     that stage in the heat of the moment, during the attack, Strugar told the

25     ECMM monitor that he fired on the city of Dubrovnik.

Page 125

 1             The results that came after the attack provide further

 2     confirmation of the Trial Chamber's conclusion that Strugar ordered the

 3     attack on Srdj.  If Strugar had not given the order, then again we would

 4     expect to see him taking vigorous action against his undisciplined

 5     subordinates for initiating an unauthorised attack that would -- that got

 6     him into trouble with his superiors in Belgrade.

 7             Instead, the facts as found by the Trial Chamber show that

 8     Strugar approved of the military action.  For example, Strugar invited

 9     Kovacevic to nominate outstanding soldiers for awards in relation to

10     their participation in the attack of the 6 December 1991.  He did not

11     intervene to stop the promotion of Kadijevic.

12             In sum, the Trial Chamber correctly looked at the totality of the

13     evidence in reaching its conclusion that Strugar ordered the attack on

14     Srdj.

15             I would like to turn now to address two of the Defence's main

16     challenges raised this morning concerning the order to attack.  First,

17     with regard to Strugar's admission, the Trial Chamber found at paragraph

18     164 that Strugar admitted to ECMM monitor Doyle that he ordered the

19     attack on Srdj.  The Trial Chamber accepted Doyle's evidence that when he

20     met with Strugar around noon on 6 December, Strugar explained to him that

21     he responded to Croatian provocations in Bosnia-Herzegovina by "firing on

22     the city of Dubrovnik."

23             It's true, as the Defence points out, that Strugar does not use

24     the word Srdj.  The plain meaning of his words is that Strugar ordered an

25     attack on the city of Dubrovnik.  However, the Trial Chamber was entitled

Page 126

 1     to look at Strugar's statement in the context of the other evidence and

 2     to take an interpretation that was more favourable to the accused.  I say

 3     it's more favourable because Srdj was a legitimate military target.  This

 4     is a more favourable interpretation than an attack on the city of

 5     Dubrovnik itself.

 6             This was a correct approach.  In any event, the Trial Chamber

 7     acknowledged at paragraph 343 that an attack on Srdj would necessarily

 8     draw Croatian fire from their defensive positions and that an artillery

 9     exchange involving the city of Dubrovnik was an integral part of the Srdj

10     attack.  This was a reasonable interpretation and the Defence has not

11     shown that the Trial Chamber erred.

12             The Trial Chamber took into account the questions of

13     interpretation raised by the Defence this morning.  It took into account

14     all of these challenges and it made an -- it took an interpretation

15     favourable to the Defence in that regard.

16             In accepting Doyle's evidence concerning the meeting, the

17     Trial Chamber rejected the evidence of Defence witness Svicevic.  The

18     Trial Chamber simply did not believe him.  It gave reasons.

19             The Trial Chamber found that his attempt to re-interpret his

20     notes by moving around their order was patently false.  The Defence again

21     has not shown this to be unreasonable.

22             Turning to the second point.  The Trial Chamber's conclusion that

23     Strugar ordered the attack did not depend on whether Jokic, his

24     subordinate, attended the planning meeting.  At the meeting in Kupari on

25     the evening of 5 December, senior officers of the 9 VPS planned the

Page 127

 1     attack on Srdj.  Defence witness Jovanovic attended this meeting and

 2     testified that Jokic was present.  Jokic was recalled to testify in

 3     rebuttal and emphatically denied that allegation.

 4             The Trial Chamber expressed reservations about Jovanovic's

 5     evidence because he had a personal interest in putting Jokic in that

 6     meeting, and because his evidence about the meeting did not accord with

 7     the military realities of the situation.

 8             In the end, the Trial Chamber considered at paragraph 88 that

 9     Jokic's attendance at the meeting was not determinative of its decision

10     and left the issue "in balance."

11             The Trial Chamber's approach was reasonable.  The Defence wants

12     Jokic at the meeting for the purpose of arguing that Jokic was involved

13     in the planning of the attack and the implementation of the attack, in

14     order to show that Strugar was not involved.  However, their conclusion

15     does not flow from that premise.  Putting Jokic at the meeting does not

16     show that Strugar was not involved.  It does not show that Strugar didn't

17     give the order.

18             The Trial Chamber addresses the implications of Jokic's

19     involvement at paragraph 98 of the judgement where the Trial Chamber

20     reflects on Jovanovic's evidence and rejects the argument that the plan

21     was "hatched and implemented by the 9 VPS including Admiral Jokic,

22     without the accused's knowledge and contrary to his orders."

23             The Trial Chamber acknowledged in paragraph 88 that its approach

24     had effects on Jokic's credibility.  Although the Prosecution argued on

25     the basis of Jokic's evidence that he was not present at the meeting, the

Page 128

 1     Trial Chamber's conclusion that the issue could remain in balance shows

 2     that it did not accept Jokic on this issue.  Throughout the judgement,

 3     the Trial Chamber treats Jokic's evidence with caution.  The

 4     Trial Chamber was clearly aware of the effects of Jokic's parallel

 5     proceedings.  It looks at the cross-examination of Jokic on the basis of

 6     his prior interviews.  The Trial Chamber accepts Jokic's evidence on some

 7     issues and rejects it on others.

 8             In some instances, the Trial Chamber looks for independent

 9     corroboration of Jokic's account of the events.  The Trial Chamber's

10     determination that Jokic's attendance at that meeting could remain in

11     balance was reasonable in the circumstances and it reflected the

12     Trial Chamber's already cautious view of Jokic's evidence.

13             The Defence has failed to show that the Trial Chamber's

14     conclusions about the Kupari meeting were unreasonable.  Ultimately, the

15     evidence proved that Jokic [sic] gave the order to attack Srdj whether or

16     not Jokic was present at that meeting.

17             Sorry, I'd like to correct the transcript.  The evidence proved

18     that Strugar gave the order to attack Srdj.  Thank you.

19             Your Honours, in this case, the absence of a written order which

20     might have answered some of the detailed questions posed by the Defence

21     this morning is not surprising.  Particularly given the sensitive

22     diplomatic backdrop preceded attack, the international attention to the

23     attack and the sham JNA investigation which followed.

24             On the Trial Chamber's own findings in the judgement at paragraph

25     6 and 7, some relevant documents related to this case were not locatable.

Page 129

 1     Some of the documentary evidence presented in this case was deliberately

 2     false and contrived.  In these circumstances, the absence of a written

 3     order should not disturb.

 4             On the basis of the mutually-reinforcing evidence presented at

 5     trial, the Trial Chamber found that General Strugar ordered forces under

 6     his command to attack Srdj on 6 December 1991.  Strugar admitted this to

 7     Doyle.  The diplomatic circumstances, the military realities, the

 8     sequence of the events, the duration of the attack, and Strugar's

 9     approval of the participants' actions proves, in a logical and reasonable

10     way that the attack was undertaken pursuant to Strugar's orders.

11             Your Honours, the Defence has concentrated on this order as if,

12     in the absence of this order, Strugar would be acquitted.  That is not

13     the case.  Strugar's conviction would remain even if he hadn't given the

14     order on the 5th of December.

15             If it wasn't Strugar who gave the order to attack, then at 7.00

16     in the morning when Strugar learned from the telephone call from

17     Kadijevic that forces under his command were undertaking an unauthorised

18     assault in the area of Dubrovnik, undertaking unauthorised military

19     combat action, then Strugar would have even more reason to be alarmed.

20     He would be on more notice of the possibility of crimes, the real and

21     reasonable risk that crimes were going to occur.

22             I'd like to turn now to Your Honours' second question concerning

23     the status of the victims.

24             Mato Valjalo and Ivo Vlasica were both civilians.  The Defence

25     has not challenged the status of Vlasica on appeal.

Page 130

 1             With regard to Mato Valjalo, the Prosecution has responded in

 2     detail to the Defence arguments concerning his status in our response

 3     brief.  These arguments were also raised at trial.  In the final trial

 4     brief at paragraphs 166 to 172, the Prosecution explained that Mato was

 5     not a member of the armed forces; he was a civilian working as a driver

 6     for the Dubrovnik Crisis Staff and he received his pension on that basis.

 7             This evidence was considered by the Trial Chamber which found

 8     that he was a civilian who was not taking an active part in the

 9     hostilities.  This same person was also a named victim in the Jokic case

10     and a similar conclusion was reached by the Jokic Trial Chamber and was

11     affirmed on appeal.  The second part of your question which asks whether

12     a combatant can be a legitimate military target under international

13     humanitarian law is slightly more complicated by the fact that although

14     the Prosecution charged an international armed conflict and argued in our

15     final trial brief that Croatia had achieved statehood by 6 December 1991,

16     the Trial Chamber did not make a determinative finding on this issue.

17             If the armed conflict were considered to be international, then a

18     combatant would clearly be a lawful military target.  In a

19     non-international armed conflict, the label of "combatant" which carries

20     with it rights to participate in the armed conflict and prisoner of war

21     status does not specifically apply.  However, it's of course still

22     necessary to distinguish between members of the armed forces and other

23     organised armed groups on one hand.  Those are the people who are

24     actually conducting hostilities on behalf of a party.  It's important to

25     distinguish them from civilians who are not.

Page 131

 1             According to Additional Protocol II, Article 13, civilians who

 2     take a direct part in hostilities lose their protection against attack

 3     for the duration of their participation.  This is equivalent to the

 4     definition in Common Article 3.

 5             Direct or active participation in hostilities requires a direct

 6     causal relationship between the activity and military harm to the enemy.

 7     In the language of the ICRC commentary, to take a direct part in

 8     hostilities means to engage in acts of war which, by their nature or

 9     purpose, are likely to cause actual harm to the personnel or materiel of

10     the enemy armed forces.  Civilians are often used as part of a war

11     effort, but this does not turn a civilian into a legitimate military

12     target.

13             In this case, the Crisis Staff was not part of the armed forces.

14     Even if it were, Mato Valjalo was not a member of the Crisis Staff and in

15     his auxiliary position as a driver, he does not meet the test of taking a

16     direct part in the hostilities.  The domestic law characterisation of his

17     pension does not determine and cannot determine his status for the

18     purposes of international humanitarian law.

19             Assuming just for the purposes of answering your question fully

20     that one of these victims was a member of an organised armed group or the

21     armed forces conducting the hostilities, then the answer would be yes, he

22     would be a legitimate military target.  If he was a civilian who was

23     directly participating in the hostilities, then again, he could be

24     legitimately targeted during the time of his participation.  As a

25     legitimate target, he would not be counted as a victim of an unlawful

Page 132

 1     attack against civilians under Count 3 of the indictment.

 2             The Trial Chamber correctly found that both of these victims were

 3     civilians who were not taking an active part in the hostilities.  These

 4     findings were reasonable and should be affirmed.

 5             Thank you, Your Honours.  This concludes my submissions, subject

 6     to any questions you might have.

 7             JUDGE VAZ: [Interpretation] There are no questions.  Thank you,

 8     Ms. Baig.  I think it is Mr. Tracol who is on now.

 9             MR. TRACOL: [Interpretation] I shall now respond to the second and third

10     grounds of appeal of the Defence and I shall start off with a response to

11     the third ground of appeal of the Defence.

12             Given that the Defence presented no arguments this morning

13     relating to the first element included in that of -- in the

14     responsibility of a superior, i.e., the superior-subordinate

15     relationship, I will not add anything to what has already been mentioned

16     in our response brief.

17             I shall also be very brief as regards the second element, i.e.,

18     responsibility of a superior and the mens rea standard.  I would just

19     like to point out that Strugar had reason to know that his subordinates

20     were committing crimes and was informed of the attack based on the

21     telephone call he got from General Kadijevic on the 6th of December at

22     7.00 in the morning.  This is a conclusion of the Trial Chamber in its

23     judgement in paragraph 418.  This finding is safe in light of the wider

24     context and the circumstances of the case.  Strugar's forces had already

25     shelled the Old Town in October and November 1991.  The second key

Page 133

 1     element is of course Jokic's testimony relating to Strugar's

 2     telephone call on the 6th of December at 7.00 in the morning.

 3             I shall just point out these two points, since the Defence

 4     presented no arguments this morning relating to the mens rea standard in

 5     the responsibility of a superior.

 6             Now, third element, the responsibility of a superior.  Strugar

 7     did not take the necessary measures and reasonable action to prevent the

 8     crimes and punish the perpetrators.  First of all, Strugar is criminally

 9     responsible for not having prevented the crimes.  Here again, I point out

10     that the Defence remained silent on this point, i.e., the responsibility

11     of a superior and said nothing about this this morning.  I shall

12     therefore just point out the following:  The conclusions of the

13     Trial Chamber in paragraph 420 to 430 of the judgement whereby Strugar

14     failed to take any effective measure from 7.00 in the morning are

15     reasonable.  And the Defence has demonstrated no error committed by the

16     Trial Chamber in its analysis.

17             I shall therefore simply point out three issues.  The first is

18     that Strugar's actions were all ineffective.  Second point, Strugar gave

19     no order to stop the attack on Srdj.  Third point, the cease-fire was

20     also ineffective.  I shall say no more about the fact that Strugar did

21     not prevent the crimes from being committed since the Defence presented

22     no arguments on this topic this morning.  But Strugar did not punish the

23     perpetrators of the crimes either.

24             The Trial Chamber rightly found in paragraph 446 of the judgement

25     that Strugar did not punish the perpetrators, he conducted no

Page 134

 1     investigation on the behaviour of his subordinates responsible for the

 2     shelling of the Old Town, and took no disciplinary measures against them

 3     in respect of the events of the 6th of December, 1991.

 4             Madam President, Your Honours, the Trial Chamber has provided

 5     detailed reasons for this in paragraph 436 of the judgement and stated

 6     that Jokic conducted a sham investigation which was not designed to reach

 7     the truth or to punish the perpetrators and this was done with the tacit

 8     approval of Strugar.  Strugar does not even allege, let alone show, that

 9     no reasonable trier of fact could have reached the conclusions contained

10     in the judgement.

11             The Trial Chamber also correctly found in paragraph 439 of the

12     judgement that Strugar was, and I quote:  "... at the very least with his

13     tacit approval, a participant in the arrangement by which Admiral Jokic

14     undertook his sham investigation and sham disciplinary action and

15     reported to the 1st Secretariat in a way which deflected responsibility

16     for the damage to the Old Town from the JNA."  The damage caused by the

17     JNA.  Strugar was not or did not think he was in a position to act or had

18     not received an order not to intervene in the events that took place on

19     the 6th of December.

20             The fact that General Kadijevic delegated the duty to draft a

21     report to Jokic does not mean that Strugar should have shied away from

22     his own duty to punish.  Every responsible commander must make sure that

23     the crimes are correctly investigated.

24             Madam President, Your Honours, contrary to what Mr. Rodic has

25     stated, Strugar was not set aside or side-lined.  The Defence is merely

Page 135

 1     repeating the arguments relating to Strugar's exclusion by

 2     General Kadijevic, arguments that were already presented at trial.  The

 3     first instance judges have looked into these arguments presented by the

 4     Defence in paragraph 438 of the judgement and the first trial judges have

 5     rejected these arguments in paragraph 439 and 442 of the judgement.

 6             Madam president, Your Honours, it is inconceivable to imagine

 7     that a superior would not have to perform his obligation by the mere

 8     order from someone else.  If the commission of a crime is covered by

 9     someone else, the Defence argument means that a superior would be under

10     no -- under no obligation to intervene.  In this particular case, Strugar

11     was under the obligation to be kept informed, to -- in line with the

12     military doctrine of the JNA and he needed to be informed by the two

13     levels in the army below him.  Zorc, who was the Prosecution's expert,

14     presented a report on the matter; P204 is the exhibit number.  He also

15     testified on this point during the trial and I would like to refer the

16     Trial Chamber to the transcript number 6595, 6596, 6592, 6593.

17             THE INTERPRETER:  Interpreter's correction, 6692, 6693.

18             MR. TRACOL: [Interpretation] As Judge Meron pointed out, Strugar

19     was interested in this investigation and its results.

20             Madam President, Your Honours, the findings of the Trial Chamber

21     are well-founded in light of the events that occurred after that.  Rather

22     than punish Kovacevic, Strugar did not oppose Kovacevic's promotion

23     even though he had the authority to do it as the Judges of the

24     Trial Bench clearly indicated in paragraph 481 of the judgement -- 441.

25     The commander of the 472nd Motorised Brigade promoted him to

Page 136

 1     Captain First Class with a retroactive effect as of the 11th of the

 2     November, after the shelling of the Old Town in November 1991.  Kovacevic

 3     was promoted on the 14th of December, i.e., only eight days after the 6th

 4     of December, the date on which the Old Town was shelled.  It is clear that

 5     Strugar decided not to use those instruments he had at his disposal to

 6     oppose Kovacevic's promotion.  Strugar has shied away from his obligation

 7     to punish the perpetrators.

 8             Kovacevic's promotion is not the sole proof of Strugar's

 9     dereliction of duty to punish the perpetrators.  This promotion shows two

10     things:  A, that Kovacevic's promotion provides a circumstantial piece of

11     evidence which shows in an indirect manner that Strugar did not give the

12     order to stop the attack on Srdj on the 6th of December at 7.00 in the

13     morning.

14             Madam President, Your Honours, if Kovacevic had -- did not comply

15     with the order, Strugar would then have taken disciplinary measures

16     against him rather than failing to stop his promotion.

17             Second, Kovacevic's promotion is so astonishing that it further

18     proves that Strugar endorsed and approved the attack on Srdj.

19             Lastly, the Trial Chamber made a specific finding in paragraph

20     441 of the judgement that the visit of General Panic, who was deputy

21     chief of General Staff in the JNA to the 3rd Battalion of the

22     472nd Motorised Brigade took place.

23             The Trial Chamber did not need to resolve the question of the

24     date of his visit since the importance of the visit lies in that at the

25     time of the visit, Strugar invited Kovacevic, and I quote paragraph 441

Page 137

 1     of the judgement:  "To nominate outstanding participants in the events of

 2     the 6th of the December."

 3             The Trial Chamber reasonably accepted Jokic's testimony on this

 4     point.

 5             Madam President, Your Honours, I have completed my arguments in

 6     response to the third ground of appeal of the Defence.  I can now briefly

 7     look into the second ground of appeal of the Defence but I suggest to

 8     merely respond to the first question which was put to the parties, if the

 9     Bench agrees with this.

10             JUDGE VAZ: [Interpretation] Very well.  You can proceed and

11     Mr. Shahabuddeen would like to put a question to you in a few moments.

12  MR. TRACOL:  Madam President, Your Honours, the Trial Chamber rightly found in

13  paragraph 483 of the - 283 of the judgement that the issue as to whether a standard

14  lower than that of direct intent may also suffice does not arise in  this case.

15             To answer your question, the position of the Prosecution is as

16     follows:  The standard relating to mens rea in the attack against

17     civilian objects should be identical to the standard used in attacks

18     against civilians on which the Appeals Chamber has already ruled in

19     paragraph 140 of the Galic judgement relating -- this is the same as

20     wilful damage, to cultural property.

21   According to the Prosecution, a mens rea standard of indirect intent

22   suffices for attack on civilian objects.

23   The accused must be aware of the substantial likelihood that unlawful damage

24   would result to civilian objects.

25             I have completed my response to the first question put to me by

Page 138

 1     the Bench.  I can answer any question if the Bench so wishes, of course.

 2             JUDGE SHAHABUDDEEN:  Mr. Tracol, I have been interested in the

 3     point made by colleagues and by Defence counsel about investigations

 4     having been ordered at a higher level of the JNA and about that operating

 5     on the basis of the principle of unity of command to neutralise, as it

 6     were, any obligation of the commander to prevent or to punish his

 7     subordinates.

 8             Do I correctly understand your answer to this proposition to be

 9     this, that yes, the obligation of a commander to prevent or punish can be

10     overborne by action taken at a higher level on the chain of command on

11     the principle of unity of command but not where, according to you, the

12     action taken at the higher level was always, and to the knowledge of the

13     commander, intended to be by way of a sham.  It was not real, and that is

14     your position?

15             MR. TRACOL: [Interpretation] Your Honour, the position of the

16     Prosecution is that the commander of an army has always, subject to the

17     idea that there is command responsibility, always has the obligation to

18     punish if he is informed or is aware of the crimes that have been

19     committed.  The fact that an investigation is ordered by a superior to a

20     subordinate of the commander in question does not relieve the superior of

21     the obligation.  That is the principle at hand.

22             Of course it is important to apply this to the facts of the case.

23     The other important element in this case, according to us, is the

24     principle of unity of command and the obligation of the superiors to be

25     kept informed, and to that, they need to be kept informed two levels down

Page 139

 1     which means that the subordinates also have the obligation to inform

 2     their superiors two levels up.  These two elements confirm that Strugar

 3     was under the obligation to punish his subordinates.

 4             Of course if we look into the facts of the case, the mens rea

 5     element in the responsibility of a superior was established since

 6     Strugar, as of the 6th of December at 7.00 in the morning was informed of

 7     the commission of these crimes, and it is this knowledge which should

 8     have triggered, on his part, an investigation into the crimes that had

 9     been committed.

10             JUDGE VAZ: [Interpretation] Judge Meron has a question to put to

11     you.

12             JUDGE MERON:  Counsel for the Defence argued that General Strugar

13     was taken out of the loop, as to say, by the higher orders issued

14     directly to Admiral Jokic to investigate.  He also argued that at no time

15     did General Strugar receive copies of those reports which were produced.

16             I understood him to say that under the military principles of

17     military discipline, he was not in a position to ask for copies and/or to

18     intervene in any way.

19             Now, how could he then have taken, General Strugar, have taken

20     steps to further investigate and/or punish if he was not aware of the

21     contents of the reports of Admiral Jokic?

22             If the function of investigation and punishment was otherwise

23     handled and this was by orders of the supreme military authority, what

24     exactly should he have done?  And I'm aware of the content of paragraph

25     445 of the trial judgement.

Page 140

 1             MR. TRACOL: [Interpretation] Your Honour, the arguments of the

 2     Defence have already been presented at trial.  These arguments are

 3     nothing new.  The Trial Chamber has scrutinised these and has dismissed

 4     them.  I would like to draw your attention not to paragraph 44 -- 445 of

 5     the judgement, but to the conclusions of the judgement in paragraph 443.

 6     In the normal chain of command of the JNA, a communication on the part of

 7     Jokic -- Kadijevic to Jokic had to go through the commander of the 2nd

 8     Operational Group and the commander of this group was, in this case,

 9     Strugar.

10             To complete my answer, it is just inconceivable, given the

11     military doctrine of the JNA and the rules whereby the superior needed to

12     be kept inform two levels up and two levels down that Strugar was not

13     informed of the contents of the reports provided by Admiral Jokic.

14             JUDGE MERON:  Counsel, how do you read, then, paragraph 445 of

15     the judgement?  And where Strugar understood the orders issued to the

16     Admiral as intended to put him aside, the General says he should never --

17     have tried to undertake the investigative orders.  Can you tell me a

18     little bit more about it so I could be comfortable with this idea?

19             MR. TRACOL: [Interpretation] Your Honour, even if General

20      Kadijavic asked Admiral Jokic to go out on a mission and cover these

21     events, this mission in substance does not enable General Strugar from

22     avoiding his obligation which was to punish his subordinates.  All the

23     elements of a superior are met in this case.

24             General Strugar was under the obligation to punish his

25     subordinates for the crimes that had been committed, and the fact that an

Page 141

 1     investigation had been conducted by higher levels and General Kadijevic

 2     and one of -- and Jokic, one of his subordinates, does not mean that

 3     Strugar was not under the obligation to punish.

 4             JUDGE MERON:  Has anyone been punished -- was anyone punished

 5     under the original reports?

 6             MR. TRACOL: [Interpretation] No, Your Honour.  None of Jokic's

 7     subordinates has been punished after the sham investigation, I should

 8     say, which was conducted by Admiral Jokic.  This, I think, is

 9     sufficiently evocative and demonstrates that the obligation to punish was

10     not complied with.

11             Only Jovanovic was punished and he was temporarily punished and

12     this can in no way be qualified as satisfactory in regard of Strugar's

13     obligation to punish.

14             JUDGE VAZ: [Interpretation] Thank you, Mr. Tracol.

15             MR. TRACOL:  As far as the rest of the presentation is concerned,

16     yes, I shall now give the floor to my colleague, Helen Brady, who will

17     address the fourth ground of appeal of the Defence.

18             JUDGE VAZ: [Interpretation] Mrs. Brady, how much time do you need

19     for your presentation?

20             MS. BRADY:  Your Honours, I can be extremely brief in response to

21     the Defence's fourth ground of the appeal on sentence.  I should be no

22     more than two or three minutes at this stage of the proceedings.

23             JUDGE VAZ: [Interpretation] Very well.  Thank you.

24             MS. BRADY:  In our submission, the sentence imposed of eight

25     years is not excessive as the Defence argues and in fact, as we will

Page 142

 1     argue in our own Prosecution appeal against sentence this afternoon, it

 2     was precisely the opposite.  It was manifestly inadequate.

 3             The reason why I can be so brief this morning in responding to

 4     his submissions on sentence is that most of the issues that he raises in

 5     fact overlap with issues that we raise in our sentence appeal and this is

 6     especially regarding comparisons to the Jokic case and his arguments

 7     about Strugar's alleged apology at the time of the events and also during

 8     the trial.

 9             So because of the overlap, I don't intend to now directly respond

10     to these arguments but rather I'll address them this afternoon when I

11     present our arguments on why his sentence was, in our submission, too

12     low.

13             However, he has also raised a few discrete points which do not

14     arise in our appeal, and especially he argues that the Trial Chamber did

15     not give weight or sufficient weight to certain factors and he mentions

16     the personal and family circumstances, good character, voluntary

17     surrender, age, and health, and he paid particular regard to this -- in

18     this morning's submissions to these two latter factors, the age and

19     health.

20             In our response, we can simply rest on our brief, what we said in

21     our response brief.  The Trial Chamber did, in fact, consider and did

22     weigh and give weight to these factors.  As my colleague Mr. Rodic has

23     mentioned this morning, the Trial Chamber had before it evidence

24     regarding all the physical and also cognitive problems experienced by

25     Mr. Strugar.  They were referred to in the Defence final trial closing

Page 143

 1     brief, and that closing brief being referred to in paragraph 467 of the

 2     Trial Chamber's judgement.

 3             Not only did they have the evidence before it but the

 4     Trial Chamber in fact mentioned that it was giving weight to these

 5     factors.  And if I turn Your Honours' attention my English copy of the

 6     judgement to paragraph 469, where the Trial Chamber specifically says:

 7     "The accused is 71 years old and in poor health.  He suffers, in

 8     particular, from some degree of vascular dementia and depression and

 9     experiences memory losses."

10             I think that ties into the question asked this morning by

11     His Honour Judge Guney that in fact the Trial Chamber was particularly

12     noting certain features that Mr. Strugar -- that were present in

13     Mr. Strugar's health situation but certainly that does not mean that they

14     disregarded the other evidence regarding what we might call some of the

15     more physical issues experienced by Mr. Strugar.

16             In short, the Defence hasn't shown that the Trial Chamber erred

17     in the exercise of its discretion in having considered and given weight

18     to those factors.  This actually concludes my submissions in response the

19     sentence at this stage pending, of course, what I will say this afternoon

20     in our own appeal.  And at that point, I will also make comments about

21     the submissions he made regarding the present state of health, or in his

22     words, the deteriorated state of health of Mr. Strugar since the trial

23     and how Your Honours should consider that factor if you come to

24     resentence Mr. Strugar.

25             Thank you.  These conclude the submissions of the Prosecution in

Page 144

 1     response.  Thank you.

 2             JUDGE VAZ: [Interpretation] Thank you.  We are now going to have

 3     a one-hour break.  We'll resume at 2.00 p.m.  Thank you.

 4                           --- Recess taken at 1.05 p.m.

 5                           --- On resuming at 2.04 p.m.

 6             JUDGE VAZ: [Interpretation] The hearing is resumed.  Good

 7     afternoon.

 8             Now, we are going to hear the reply by the Defence.  You have

 9     half an hour.  Please proceed.

10             MR. RODIC: [Interpretation] Thank you very much, Your Honour.

11             In the Prosecution's reply to the Defence appeal, the Prosecution

12     is adamant about its proposition that Strugar ordered the attack on Srdj.

13     This theory is supported by the following arguments:  They say that the

14     finding of the Chamber was supported by evidence that on the 23rd of

15     November, in Geneva, Kadijevic held negotiations about a cease-fire; on

16     the 5th of December, Jokic was negotiating with the Croatian side; and

17     they also say that Srecko Kovacevic came up with a coordinated attack on

18     the 5th of December.  That evening they claim Kovacevic visited Strugar's

19     command.

20             In relation to these arguments, the Defence can say as follows:

21     These are generic statements by the OTP, especially when they say that

22     the finding of the Trial Chamber was supported by evidence.  The Defence

23     produced detailed reasons founded on evidence to show that the assumption

24     that Strugar ordered the attack on Srdj was entirely unfounded.  I will

25     not be repeating those now.  The OTP mentioned the negotiations that took

Page 145

 1     place but they appear to show the exact opposite, namely that Strugar did

 2     not order the attack on Srdj on the 3rd of December in Belgrade at a

 3     meeting with the highest military leaders of the country, was

 4     familiarised with the progress of the Geneva negotiations.  As a

 5     responsible and professional military officer who never ignored any

 6     orders or instructions received from his superiors, he stood by the order

 7     that he received and the instructions that he received.

 8             On the 3rd of December, Strugar attended the meeting in Belgrade

 9     and he was told about these facts.  He was informed.  Jokic, who

10     throughout October, November and December acted as chief negotiator on

11     behalf of the JNA, the army, was informed that he should hold

12     negotiations and sign a cease-fire precisely in keeping with the

13     Geneva Agreement dated the 23rd of November, 1991.  However, as the

14     Defence put forward in quite some detail in our brief, the deadline was

15     encroaching for the signing of this agreement and the time was getting

16     shorter and shorter for him.  Precisely for what he was adamant

17     throughout November in his combat reports to the 3rd Battalion that was

18     supposed to use its infantry units to take Srdj and which they failed to

19     take.

20             This is why it is important to go back to the arguments put

21     forward by the Defence in our appellate brief, it is important to

22     establish whether Jokic was present in Kupari on the 5th of December.  It

23     is important to establish if he was involved in the planning and ordering

24     of this attack.  This is not a question that can be allowed to remain

25     open and unresolved, and it is a question of considerable significance

Page 146

 1     for any ruling in this case.

 2             The OTP state that on the 5th of December, Kovacevic was in

 3     Trebinje.  In paragraph 340 of the judgement, the Chamber dealt with this

 4     insinuation of an alleged agreement, what is this supposed to mean?

 5     Strugar being involved and Kovacevic going to Trebinje but the

 6     Trial Chamber dismissed this precisely because there is no evidence to

 7     suggest anything in relation to that.  This story is based yet again on

 8     Jokic's evidence.  At 381 of the transcript, or rather 3891 through 3892,

 9     Jokic explains precisely this.  He explains that the original brigade,

10     the 472nd Brigade to which Captain Kovacevic's battalion belonged was

11     based in Trebinje of all places; its command was based in Trebinje,

12     before the war and during the war.  He also says that he often travelled

13     to Trebinje in order to remain in touch with his original brigade.

14     Therefore, this can hardly be used to make insinuations about any contact

15     with Strugar in relation to the attack of the 5th of December.

16             This fact, as I've pointed out already, was known thanks to

17     Jokic's testimony, however Jokic also testified that he was informed

18     about this by two unnamed officers who once worked for that operations

19     group and Kovacevic himself, back in 2001, just before he left for

20     The Hague.  So much about the reliability or credibility of his testimony

21     and why does it matter to him even if put like this, he's trying to shift

22     any suspicion of blame from himself, any suspicion that he might have

23     been involved in something that was illicit.

24             Finally, in relation to these arguments put forward by the

25     Prosecution, I would like to remind the Chamber in their analysis of

Page 147

 1     evidence, in their closing arguments and their closing final brief, did

 2     not adopt the theory that Strugar ordered the attack on Srdj or indeed

 3     that this was based on his alleged admission to Colm Doyle to the effect

 4     that he had ordered the attack on Dubrovnik.

 5             The theory about the attack on Srdj is something that the

 6     Prosecution tries to deal with in their reply and tries to support this

 7     theory by mentioning the promotion of Captain Kovacevic.  They link him

 8     to General Strugar.  They link this promotion to General Strugar and

 9     suggest that this was the reason that he had ordered the attack on Srdj

10     because he was trying to cover up Kovacevic's actions thereby factually

11     condoning his actions although allegedly he had known back in October

12     November 1991 that Kovacevic had been involved in incidents which led to

13     the shelling of the Old Town.  They say that Strugar failed to thwart

14     Kovacevic's promotion.

15             In our appellate brief, we address these facts in quite some

16     detail and we also invoke evidence from the trial confirming beyond any

17     doubt at all that the 3rd Battalion of the 472nd Brigade under the

18     command of Kovacevic in October was not involved in any combat activities

19     when the shelling of the Old Town actually occurred.

20             Further, if we look at the combat orders issued between the 9th

21     and the 13th of November, 1991, by Admiral Jokic, the 3rd Battalion of

22     the 472nd Brigade and Kovacevic had the following task:  They had an axis

23     and they were supposed to use their infantry units to take that axis.

24     However, if you look at these very specific orders, you see that there

25     was no artillery action on the part of the 3rd Battalion.  Rather, their

Page 148

 1     brief was quite specific in terms of both time and location.  They were

 2     to provide support to other artillery units from Jokic's 9th Military

 3     Naval Sector.

 4             This was not reflected in the transcript.  Combat orders between

 5     the 3rd -- the 9th and the 13th of November, that Jokic issued were about

 6     taking the Srdj elevation.

 7             There is also the account provided by Admiral Jokic during his

 8     evidence about an alleged investigation that he carried out back in

 9     November as to who had been involved in the shelling of Srdj.  He claims

10     that he had established at the time that this might have been

11     Captain Kovacevic of which he subsequently informed the 2nd Operations

12     Group requesting his dismissal.  But there is evidence disproving these

13     allegations in addition to everything else that the Defence has put

14     forward.  Let me just mention one of those.  D100, Exhibit D100 in which

15     we see Warship-Captain Zec, the Chief of Staff of the 9th Military Naval

16     Sector on the 26th of November, 1991, making a proposal regarding

17     incentives to members of the 3rd Battalion of the 472nd Motorised

18     Brigade.  Many members of that battalion were nominated for various kinds

19     of promotion, decorations, that sort of thing.  This is a proposal.  The

20     proposal that he then committed to the commander of the 9th Military

21     Naval Sector.

22             This is quite certainly an exhibit that denies any allegations

23     made by Jokic about any investigation that he allegedly conducted back in

24     November 1991, it also shows that no one from another operations group

25     could possibly have known about these actions allegedly taken by

Page 149

 1     Kovacevic.

 2             In relation to the promotion procedure under the military rules

 3     or if you like, in view of the military reality that prevailed in the

 4     JNA, there is one thing that must be pointed out.  There were no

 5     investigations.  There were no insinuations about Kovacevic in relation

 6     to the shelling of the Old Town at the time.  His proposed promotion

 7     dating back to November, because of the JNA procedure and because of the

 8     way it worked, proposals are first tabled, they are then considered and

 9     so on and so forth.  The Supreme Commander of the JNA, Kadijevic, signed

10     this on the 14th of December, signed Kovacevic's promotion which was to

11     be dated the 14th of November, predated, because that's what his merits

12     were about.  The promotion was to take effect on the 11th of November

13     because he had distinguished himself in the Srdj action having

14     implemented the orders previously issued by Jokic.

15             Another thing that is significant, by the 14th of December, which

16     is when his fast-track promotion was signed and approved, the

17     Federal Secretary Kadijevic had already received reports forwarded to him

18     by Jokic pursuant to his own order to conduct investigation into the

19     events of the 6th of December and the shelling of the Old Town.

20             What does this mean?  Kadijevic is already in possession of

21     Jokic's report in relation to the 6th of December investigation and what

22     exactly went on?  Needless to say, these were reports that he forwarded

23     to Kadijevic.  And Jokic uses these to explain that Kovacevic launched

24     this attack at his own initiative on that day because he was, at the

25     time, under fire and he was suffering heavy losses due to enemy fire that

Page 150

 1     was emanating from Srdj itself.

 2             As for the OTP's allegations about Kadijevic's order to Jokic to

 3     conduct an investigation, and about this being no impediment for Strugar

 4     to launch a parallel investigation and punish his subordinates, the

 5     Defence wishes to say this:  In their reply, the OTP have not proposed

 6     any arguments to support this claim.  Therefore, the Defence believes

 7     these to be mere generic allegations.  All the more so since, as we know,

 8     in the very first report, and now we are discussing the level of

 9     information available to Kadijevic or anyone else in possession of this

10     piece of information, even his very first report, Jokic is actually just

11     pretending to be taking measures.  As soon as the 7th of December, he is

12     submitting a report to Kadijevic saying that this was an attack launched

13     by Kovacevic of his own accord because he had come under enemy fire, this

14     was not a situation that he could cope with, and he had no choice but to

15     take this measure.

16             As soon as the 7th of December, he submits a report to Kadijevic,

17     as the Supreme Commander, to say that he had replaced Captain Jovanovic

18     who was the commander of the 3rd Battalion of the 5th Brigade.  The

19     Trial Chamber found that this person could not have been involved in the

20     shelling of the Old Town on the 6th of December.

21             The Prosecutor's reply regarding lack of diligence in Strugar's

22     conduct in preventing or stopping the attack after the telephone call in

23     the morning of the 6th of December from General Kadijevic, this

24     allegation is not consistent with that military reality.  Strugar did

25     call Jokic and ordered him to stop the attack.  Furthermore, he agreed

Page 151

 1     with the measures that Jokic is informing him of at that moment, that

 2     he's sending somebody from the staff, a Colonel from the staff to

 3     Zarkovica to stop the attack and so on and so forth.

 4             Therefore, Strugar as the superior officer did take sufficient

 5     and reasonable measures once he was informed to prevent and to stop the

 6     attack.  He tells his subordinate officer, a corps commander with a very

 7     high rank of General of his orders.  He agrees with the measures his

 8     subordinate officer tells him he would take, and this is sufficient for

 9     Strugar to believe his subordinate officer.

10             I have to go back to Jokic's meeting in Kupari on the 5th of

11     December because it has been mentioned time and time again.  I have to

12     draw the attention of the Trial Chamber to the fact that

13     Lieutenant-Colonel Jovanovic has no vested interest in establishing the

14     presence or non-presence of Jokic at the Kupari meeting on the 5th of

15     December.  Admiral Jokic himself, when testifying before the Trial

16     Chamber, said that he personally led the meeting in Kupari on the 5th of

17     December, 1991.

18             Further in his evidence, Jokic says that he informed his

19     superiors by telephone of his negotiations with the opposing side and he

20     also informed the officers in his staff of the cease-fire that resulted.

21             Thus, Jokic himself states in his evidence that he was in Kupari,

22     that he led the negotiations, he was present at the meeting and when we

23     compare that to Jovanovic's testimony and his reports from 1991, we

24     cannot leave in balance the question of Jokic's presence in Kupari.

25             Regarding the arguments of the Prosecution regarding the status

Page 152

 1     of Mato Valjalo, let me repeat, his duties in the Crisis Staff in

 2     Dubrovnik can also be viewed in the light of the Law on Defence of the

 3     Republic of Croatia because the Crisis Staff in times of war has a

 4     military function, participates in the defence of the country in keeping

 5     with Croatian legislation.  So at that time, Mato Valjalo was mobilised,

 6     he was a military conscript.  And in keeping with that mobilisation, he

 7     was assigned to the duties he was performing at the Crisis Staff.

 8     Certainly, after his injury, all that was recognised in the proceedings

 9     before the competent authorities of Croatia which granted him the status

10     of military war invalid and we already established that there is another

11     category that of civilian war invalid which is granted to civilians who

12     are injured or wounded during the war.

13             With regard to the Prosecution's reply to the appeal of the

14     Defence concerning sentencing, the Prosecution failed to reply to the

15     arguments of the Defence; namely, in the judgement of the Trial Chamber,

16     only two diseases, two conditions are mentioned.  The Defence asserts

17     that at that time, the Trial Chamber had in its possession reports of

18     another five or six conditions which combined make the health of the

19     accused much worse than acknowledged by the Trial Chamber, vascular

20     dementia, depression, and memory loss that were not taken into account.

21     With regard to the same period, the Defence kept the Trial Chamber

22     informed of the deteriorating health as witnessed by appropriate medical

23     reports.  And in that way, we informed the Appeals Chamber of this

24     condition, the deteriorating health of Mr. Strugar after the judgement in

25     2005.

Page 153

 1             We believe all this amounts to and should be treated as a special

 2     mitigating circumstance that should be given appropriate weight in

 3     sentencing.

 4             And precisely in this regard --

 5             JUDGE VAZ: [Interpretation] We will remind you you still have 4

 6     minutes left.

 7             MR. RODIC: [Interpretation] I will conclude in 30 seconds.

 8             I would like to recall, with regard to the sentence and the

 9     position of the Prosecution now, that in 2006, the Prosecution withdrew

10     its own appeal precisely for humanitarian reason as stated in the brief

11     which means because of the age and the very poor health of

12     General Strugar.  Thank you.

13             JUDGE VAZ: [Interpretation] Yes, Judge Shahabuddeen, do you have

14     a question?

15             JUDGE SHAHABUDDEEN:  Mr. Rodic, I shall be speaking for myself.

16     At the close of the case, I asked myself whether I have understood the

17     main lines of the argument and here, I must say that I am attracted to

18     your argument which I understand this way that, yes, a commander does

19     have a responsibility to take disciplinary measures against his

20     subordinates, but that in view of the principle of unity of command, that

21     responsibility is as it were, overborne or neutralised by any appropriate

22     action taken at a higher level of command responsibility.  But is it

23     allowed in this sense that if the commander is aware that the action

24     purportedly taken at a higher level or in the chain of command is a sham,

25     that neutralisation doesn't apply.

Page 154

 1             What I want to bring to your mind is the sentence which occurs in

 2     paragraph 439 of the judgement, it reads:  "Rather, the evidence

 3     persuades the Chamber the accused was, at the very least, by

 4     acquiescence, a participant in the arrangement by which Admiral Jokic

 5     undertook his sham investigation and sham disciplinary action."

 6             To my mind, the case, in this branch, will turn upon the veracity

 7     of that statement:  Was that investigation taken at a higher level a sham

 8     investigation, and did the accused know that it was a sham?  If so, would

 9     that neutralise his responsibility to take disciplinary action against

10     his subordinate?

11             MR. RODIC: [Interpretation] Your Honour, in relation to paragraph

12     439 of the judgement that you referred me to, I see that this is a

13     finding of the Trial Chamber.  However, what is essential in the view of

14     the Defence is that when the Chamber states that based on the evidence,

15     it is satisfied that the accused, at least on the basis of tacit

16     agreement was a participant in the arrangement by which Admiral Jokic

17     undertook his sham investigation and sham disciplinary action and

18     reported to the 1st Secretariat in a way which deflected responsibility

19     for the damage to the Old Town," in the view of the Defence this is based

20     on conjecture although the word here used is "evidence."

21             However, interestingly enough, there is nothing in the footnote

22     to accompany and corroborate this finding of the Trial Chamber.

23             Furthermore, the question arises -- we understood this part:

24     Kadijevic ordered Jokic to conduct an investigation and report directly

25     to him without anybody interfering.  During cross-examination,

Page 155

 1     Admiral Jokic too was asked what I just presented to you as a

 2     proposition, whether he copied his reports of the investigation to

 3     Strugar.  His answer was negative.  Everything was directed to Belgrade.

 4     There is no evidence that Kadijevic either, once he received all the

 5     reports and the videotape of the damage to the Old Town of the 6th

 6     December, there is no evidence that Kadijevic shared with Strugar any

 7     information concerning responsibility, who organised the attack, who

 8     shelled the Old Town, what kind of damage, to what extent was inflicted,

 9     what measures were proposed to the Federal Secretary.  Neither Jokic nor

10     Kadijevic shared any of this information with Strugar.

11             If, in some way, indirectly he had been informed, that, perhaps,

12     would have constituted grounds for him to inform the Federal Secretary to

13     raise the issue, to ask, perhaps, about the results of the investigation;

14     however, Strugar has no information.

15             JUDGE VAZ: [Interpretation] Judge Kwon.

16             JUDGE KWON:  I just wanted to ask this -- exactly the same

17     question put by -- his Learned Judge, Judge Shahabuddeen.  But if I can

18     just follow up.  Then you would agree with the principle as a matter of

19     law where an investigation ordered by a superior to a commander is a

20     sham, then the commander's duty to investigate and punish would still

21     persist as a matter of law.

22             MR. RODIC: [Interpretation] Your Honour, could you just make it

23     more specific?  I simply don't want to misunderstand this.  Which

24     commander are we talking about in this example?  Is it Kadijevic-Jokic or

25     Strugar-Jokic.

Page 156

 1             JUDGE KWON:  Let us suppose Mr. Strugar at the time knew that the

 2     order to investigate the crimes by General Kadijevic to Jokic was a sham,

 3     then Strugar's obligations still persist.  Would you agree with that

 4     proposition?  I'm asking this because probably I take it that you agree

 5     with the proposition that an order to commit a crime can be disobeyed,

 6     then if an order allows the impunity for a crime, then that kind of order

 7     could be disobeyed, couldn't it?

 8             MR. RODIC: [Interpretation] Your Honour, I appreciate the logic,

 9     the underlying logic in your question.  However, what I cannot agree to

10     at all is military reality precisely in the JNA, military doctrine,

11     regulations, and the functioning of that army for 50 or 60 years in the

12     past.

13             It is difficult to assume that when Strugar and Jokic come to

14     report, and when Strugar hears with his very own ears that Kadijevic, as

15     Jokic wrote, was angry, orders Jokic to investigate the matter, to have

16     it done, to have these measures taken, no way could he believe that this

17     is a sham order coming from the Supreme Commander, and given to a high

18     officer, Admiral Jokic.  How should I put this?  That this is a sham

19     order, a false order to have an investigation carried out.  And at that

20     moment, how could the General think that this has to do with a cover-up

21     of a crime?

22             Since that investigation was out of Strugar's jurisdiction, if

23     General Strugar were to become in charge of Jokic again, the

24     investigation and everything else, it is only in that case that one could

25     speak of Strugar's responsibility on the basis of such reports sent by

Page 157

 1     Jokic, whether he looked through them conscientiously enough, whether he

 2     paid enough attention to them, and whether he checked the facts contained

 3     in these reports.

 4             So my answer is that he would have been responsible only if the

 5     Supreme Commander would have returned the authority to him to carry out

 6     this task.

 7             JUDGE KWON:  Thank you.

 8             MR. RODIC: [Interpretation] I do apologise.  Just very briefly.

 9     In order to add to what I've already said by way of an answer.  That is

10     also contrary to the view of the Prosecutor.

11             Let us just look at the logic of all these questions.  Shells

12     fell on the old city on the 6th of December.  Those shells were fired by

13     soldiers who were manning artillery pieces.  According to the then

14     composition, they are commanded by platoon commanders, above them company

15     commanders, above them battalion commanders, then the commander of the

16     9th VPS Corps and then the commander of the 2nd Operations Group and the

17     Supreme Commander, Kadijevic, above him.

18             Along those lines, where would responsibility stop in terms of

19     who was in charge of taking measures aimed at prevention and punishment?

20     Bearing in mind the specific situation at hand when the superior

21     commander directly assigns a high-ranking officer to investigate and to

22     report to him on the results of the investigation.

23             Thank you.

24             JUDGE VAZ: [Interpretation] Judge Meron, please.

25             JUDGE MERON:  Thank you, President.

Page 158

 1             The questions that we are now pursuing that my colleagues

 2     Judge Shahabuddeen and Kwon asked are of course also relevant to the

 3     factual explanations from the Prosecutor.

 4             Judge Shahabuddeen, in particular, referred to the problem of --

 5     to the suggestion that the whole set-up was a sham.  Now, Judge Kwon

 6     pursued that question.  I would have liked to hear more argument

 7     regarding this -- the quality of that arrangement a sham because it's

 8     very, very important, we can just not speculate on that, we would like to

 9     hear something more concrete but before giving you the floor, I just

10     wanted to sum up to myself as I see this situation.

11             There was bombardment of Dubrovnik, carried by a unit called

12     9 VPS.  Jokic was a commander of that unit.  And Jokic was charged with

13     investigation and reporting.  Among the one thing that he did which is,

14     of course, not -- far too mild was that Colonel Jovanovic was removed

15     from his temporary command.

16             Jokic submits a report to Kadijevic and the question then

17     presents itself.  Who was the commander who legally bore the duty to

18     investigate, to punish, et cetera, et cetera.  The direct commander was

19     Jokic.  It was not Strugar who was removed from that.  So Strugar was

20     sort of a commander of a commander and I would like later to explain to

21     me why Strugar continued to bear the classical responsibilities of a

22     commander when the unit was under Jokic's command and Jokic was also the

23     investigating and punishing authority.

24             Now, on -- in paragraph 444, the Trial Judgement tells us that

25     "The evidence establishes that the accused, namely Strugar, at all

Page 159

 1     material times had full material and legal authority to act himself, to

 2     investigate or to take disciplinary or other adverse action against

 3     officers of 9 VPS."

 4             There is no footnote here and I would like to know what is the

 5     evidence on which this statement rests.  Thank you.

 6             MR. RODIC: [Interpretation] Second Operations Group that was

 7     headed by General Strugar is a temporary military unit which was set up

 8     ad hoc consisting of several units, several corps.  The 9th military

 9     sector is excluded from the army district that was called the Military

10     Naval District that is to say the entire navy.  The corps of

11     Admiral Jokic was excluded from that.

12             The fact that this corps then was placed under the operative

13     control of the 2nd Operative Group remains.  Then there is the

14     Uzice Corps and there were several other formations that were changed in

15     the meantime.

16             This sentence from paragraph 444 that you read out, pertains to

17     the usual state of affairs, if I can put it that way.  That is to say

18     that the state of affairs that is in keeping with military regulations,

19     namely that within the 2nd Operation Group which is at army rank, you

20     have the 9th Military Naval Sector whose commander is Admiral Jokic, then

21     you also have a brigade whose commander is I don't know, somebody else,

22     and you have yet another corps that has its own commander.  Again, a

23     higher-ranking officer.

24             These are Strugar's subordinate commanders.  They report to him

25     regularly about the activities of their units, and they propose measures

Page 160

 1     to resolve problems in the field, in the area that they are in charge of

 2     in terms of their area of responsibility from a military and territorial

 3     point of view.  Their proposals are discussed in the staff of the

 4     2nd Operations Group.  They are either accepted or rejected, amended,

 5     then certain orders are passed and then they are passed further down to

 6     the subordinate commands of the corps including the 9th VPS and

 7     Admiral Jokic.

 8             From that point of view, when the Trial Chamber says that from

 9     that aspect, the accused had full material and legal authority to act

10     himself, or rather to command his subordinates to take measures to

11     investigate or take disciplinary or other adverse action against the

12     officers of the 9th VPS, this presupposes a procedure of a disciplinary

13     investigation that can be ordered by General Strugar to his subordinates.

14     However, what we have here is an exceptional situation, not a regular

15     situation, the usual type of situation.

16             Again, on the basis of laws and regulations, these are

17     exceptional situations.  When the supreme military minister gives an

18     order two steps down or even three steps down and when he asks Jokic

19     directly to do something because the supreme minister realises that

20     Strugar is commander of a temporary formation set up ad hoc for that

21     particular occasion or rather in that particular situation in the then

22     Yugoslavia, that this military naval sector is a unit that has Dubrovnik

23     under its authority for the past 50 years and that Jokic was commander of

24     that military and naval sector for 10 years and he was fully familiar

25     with the area from beforehand.  He knew everything in the area.

Page 161

 1     Therefore, it was logical, as the Trial Chamber establishes then, that

 2     Kadijevic orders Jokic to carry out the investigation because Jokic is

 3     the one who can carry it out in the fastest and most efficient and best

 4     way.  So this is an exceptional situation.

 5             May I just add one thing, just one sentence?  I do beg your

 6     pardon.

 7             JUDGE VAZ: [Interpretation] Very briefly, sir, because we have

 8     overstepped the time.

 9             MR. RODIC: [Interpretation] I'm about to finish.  Since the

10     Judge's question was:  Who was the officer that had the mandate to

11     punish?  According to this order, Jokic could mete out punishment himself

12     and Kadijevic on the basis of these reports, he could instruct Jokic how

13     to punish and Kadijevic himself could have punished on the basis of the

14     reports of the investigation.  Thank you.

15             JUDGE VAZ: [Interpretation] We are now going to give the floor to

16     the Prosecution for their submissions on their own appeal, apparently we

17     should have a break around quarter to 4.00.

18             Is that feasible?  In principle you have 45 minutes.  If you can

19     finish any earlier, we might catch up with the time we have lost in

20     relation to the scheduling order.

21             You need how many minutes or how much time, Ms. Brady?

22             MS. BRADY:  Your Honour, for the entirety of the Prosecution

23     appeal, we believe that we will need about one hour and ten minutes.  We

24     have one hour and a half according to the Scheduling Order.  We don't

25     think we'll go as long as that, though at the same time, I'm going to

Page 162

 1     provide some further amplification on some of the questions that were

 2     posed especially this morning and this afternoon by Their Honours

 3     Judges Meron and Judge Shahabuddeen.  We think we can do whole of the

 4     Prosecution and those question in one hour and 10, 15 minutes at most.

 5             JUDGE VAZ: [Interpretation] We may not have quite understood.  We

 6     must have a break.  You are entitled to an hour and a half.  We must make

 7     a technical break, as it were.  That's why I raised the issue with you.

 8             MS. BRADY:  Yes, thank you, Your Honour.

 9             What I will -- what I intend to do is start by giving some

10     clarification to some of the questions that were answered this morning by

11     my colleague, Mr. Tracol and also just a few comments in relation to the

12     questions which Judge Meron and other members of the Bench asked this

13     afternoon.

14             Then we will move to the first ground of appeal.  I believe we

15     can do that all in 45 minutes and then I will turn to the sentence appeal

16     that we have in the remaining time and it should be no more than about 20

17     minutes on that.

18             As I mentioned, Your Honours, I will clarify some aspects to

19     answers that were given this morning by my colleague Mr. Tracol and in

20     particular, it came up again in relation to a question asked by

21     His Honour Judge Shahabuddeen this afternoon to the Defence.

22             I'm not quoting your question but to paraphrase it,

23     His Honour Judge Shahabuddeen asked a question to the effect that:  If

24     the order that came from above, if the order from Kadijevic was also one

25     which was designed to conceal the real events on the day, whether we call

Page 163

 1     it a sham or at least one which was designed to present a certain version

 2     of events, as I understood the question, His Honour asked:  Can this let

 3     those below, the other subordinates down in the chain who also have their

 4     own duties to investigate, can it let them off the hook?

 5             Our answer to this is a clear no.  It cannot let them off the

 6     hook.  Your Honour Judge Shahabuddeen pointed to paragraph 439 of the

 7     judgement.  In addition to that, Your Honours, I'd point you to paragraph

 8     442 of the judgement.

 9             Now, in that part of the judgement, the Chamber repeats that it's

10     not satisfied that General Strugar was excluded and then it says at the

11     end of paragraph 442:  "Rather, the Chamber finds he was at least

12     prepared to accept a situation in which he would not become directly

13     involved leaving all effective investigation, action and decisions

14     concerning disciplinary or other adverse action to his immediate

15     subordinate, Admiral Jokic."  These are the very important words, "Whose

16     task effectively was known to the accused to be to smooth over the events

17     of 6 December 1991 as best he could with both the Croatian and ECMM

18     interests while providing a basis on which it could be maintained by the

19     JNA that it had taken appropriate measures."

20             In other words, Your Honours, and also I point to other parts of

21     the judgement, paragraph 435, in essence, the JNA at this point was in

22     what we might call colloquially damage control mode.  And Strugar was

23     aware that this was a damage control, it was -- it could also be called a

24     PR, public relations exercise.

25             If Your Honours's proposition ...

Page 164

 1             JUDGE VAZ: [Interpretation] Yes, do you have a problem,

 2     Mr. Rodic?

 3             MR. RODIC: [Interpretation] Your Honours, just one thing, if you

 4     could please explain this.  I'm not sure if this is because of what the

 5     Prosecutor seems to be saying now, but are we now reopening, in a manner

 6     of speaking, a new ground of responses and replies?  Because I think the

 7     Prosecutor is now responding to our reply.  Is this a procedure that is

 8     established before the Trial Chamber?  What I was thinking was the idea

 9     that I had was that there was no further response to our reply.  In other

10     words, will I be given a chance to reply yet again to what the Prosecutor

11     seems to be saying now?

12                           [Appeals Chamber confers]

13             JUDGE VAZ: [Interpretation] Sir, the Judges have conferred.  The

14     Judges put their own question, therefore it is quite normal that

15     Ms. Brady be entitled to respond.  What we are going to be asking her is

16     to respond briefly to the questions put by the Bench and then to address

17     the Prosecution's appeal.  If, in addition, you have anything to add, you

18     must make it very short because we have already spent a lot of time on

19     these issues.

20             Ms. Brady, you have the floor.

21             MS. BRADY:  Thank you, Your Honour.  I will endeavour to speak

22     only to the questions that were raised and to assist on these points.

23             As I was saying, in further response to the question posed by

24     His Honour Judge Shahabuddeen, essentially if the proposition was

25     allowed, was to be accepted that once an order comes from above, that is

Page 165

 1     designed to conceal or to present a sham, then all others are off the

 2     hook.  This would mean from top to bottom, there would be an exoneration

 3     of people on their duty to investigate and take proper steps and this, of

 4     course, would not be acceptable.

 5             I can also point Your Honours to the testimony of Admiral Jokic

 6     who, on the way back on travelling back from Belgrade from the meeting

 7     with Kadijevic, as they're travelling back, he talks to Strugar on the

 8     way back and Your Honours, at transcript page -- transcript 29th of

 9     March, 2004, transcript reference is 4086 to 87.  This is what Jokic said

10     about that conversation with Strugar on the way back from Belgrade.  And

11     I'm quoting from the transcript:  Jokic said, "It was accepted that the

12     official version of the events of the 6th of December which was composed

13     at the command of the 2nd Operational Group on the basis of information

14     provided by Captain Kovacevic which was given by his officers, that this

15     official version of the event should be sent to Belgrade to the

16     General Staff and that I should stand by that story, that version at the

17     press conference on the following day."

18             So Strugar well knew what exactly the investigation would entail.

19             In brief answer to Judge Meron's question about whether

20     General Strugar could have asked to see the report prepared by Jokic, so

21     even if he had understood the situation was that Kadijevic gave an order

22     directly to Jokic, what stopped him, as it were, from asking to see the

23     report?  Our answer to that is yes.  Yes, of course he could get the

24     report.  It would actually be inconceivable under normal military

25     doctrine if he could not, and especially in a -- in the JNA command

Page 166

 1     system where you have this two up, two down doctrine which expert Zorc

 2     spoke about which emphasised that a duty of a commander is to be informed

 3     two levels up and two levels down.

 4             I also stress that another important factor that at some stage as

 5     commander he would have had to have found out about the results of that

 6     report so he could take necessary and reasonable measures.  The simple

 7     reason being that it was directly about troops under his command.

 8             Your Honour Judge Meron also had a concern arising from this

 9     morning's questioning about the finding in paragraph 445 of the

10     judgement.  This finding, if I could summarize the essence of this

11     finding, it's basically this:  That even if Strugar understood at that

12     time that he was out of the loop, the Trial Chamber finds he still should

13     have done something.  I think Judge Meron was troubled by this because it

14     seemed that -- at first blush it could seem to be going too far to expect

15     General Strugar to defy his boss, the Supreme Command, General Kadijevic

16     and his order.  Except I think you have to keep one thing in mind and you

17     have to keep coming back to the purpose of the exercise.  And again come

18     back to the paragraph 444.  The purpose was to present a certain version

19     which would basically sit with the Croatians, sit with the ECMM, the

20     international monitors, and then also allow things to look as if the JNA

21     had taken measures.  Again, a PR exercise.

22             The Trial Chamber in that paragraph also notes that Strugar could

23     have resigned and yet he did not.  At the end of the day, as my colleague

24     Mr. Tracol did emphasise, no one was punished by the removal of one

25     person, Mr. Jovanovic who was simply removed from his one day temporary

Page 167

 1     assignment as battalion commander of the 5th Brigade and he wasn't -- his

 2     units weren't actually even directly involved on the day of the shelling.

 3             So at the end of the day, the one person who was identified by

 4     the investigation, that is, Kovacevic, the one person who was identified

 5     as directly involved, far from being punished, he was promoted.  That

 6     speaks volumes about General Strugar's acquiescence in the situation.

 7             My last point.  I'd like to deal with Judge Meron's question

 8     relating to paragraph 444 and in particular, Your Honour's concern about

 9     the finding on whether or not the accused at all material times had full

10     material and legal authority to act himself to investigate or take

11     disciplinary or other adverse action against these troops who directly

12     participated.

13             Your Honour noted that, and correctly so, that there is no

14     footnote to that finding.  However, the findings were already made by the

15     Trial Chamber in paragraphs 412 to 413 of the judgement.  If I could take

16     Your Honours to those paragraphs.

17             In 412, the Trial Chamber found that:  "As the commander of the 2

18     OG, the accused could also ensure the replacement of a subordinate

19     commander during combat operations by recommending to the federal

20     secretary of national defence the removal of the officer supported by an

21     explanation."

22             And there there's a reference in the footnote 1195 to

23     Exhibit P204, and to the testimony of Admiral Jokic at transcript page

24     3906.  General Jokic said at 3906 about this very matter as to whether or

25     not Strugar would have had the legal and full material ability to take

Page 168

 1     action, as it were, against these people at this stage, he said:  "Well,

 2     according to the law, the commander of the operational group held the

 3     rank of army commanders.  He could have suspended or replaced a

 4     subordinate commander, anybody.  That's the kind of authority he had.  He

 5     had the right to replace anyone in any subordinate command."

 6             Your Honours, that completes our further answer in -- further

 7     articulation of Your Honours' questions.  I would now turn the podium

 8     over to my colleague, Ms. Jarvis who will address you on the

 9     Prosecution's first ground of appeal.  Thank you.

10             MS. JARVIS:  Your Honours, the Prosecution's first ground of

11     appeal can be summarized in simple terms.  The Trial Chamber found that

12     General Strugar's duty to prevent the shelling of the Old Town of

13     Dubrovnik was triggered at around 7.00 in the morning of 6 December by

14     which time he had been telephoned by General Kadijevic in Belgrade and

15     put on notice that the shelling of the Old Town was then already

16     underway.

17             The Trial Chamber also found that even prior to that time, based

18     on the prevailing circumstances, General Strugar also had notice of a

19     real and obvious risk that the shelling would take place.  But the

20     Chamber found that he was not legally obliged to do anything about it at

21     that earlier point in time.

22             We submit that that was wrong, that it's antithetical to the

23     notion of responsible command that underpins superior responsibility, and

24     that it would, in large part, render meaningless a superior's duty to

25     prevent future crimes.

Page 169

 1             My submissions today are divided into four parts.  In the first

 2     part, I'll explain to you why this ground of appeal matters.  Why is it

 3     so important to recognise that Strugar's duty to prevent the crimes

 4     preceded the time when he received the phone call from Kadijevic.

 5             In part two, I'll explain in more detail the factual backdrop in

 6     which this issue arises in the present case.  In part 3, I'll explain the

 7     nature of the Trial Chamber's error and why the Trial Chamber was wrong

 8     to find that the mens rea standard for Article 7(3) is not met based on a

 9     real and obvious risk of future crimes.

10             In part 4, I'll explain what the outcome in this case should have

11     been had the correct standard been applied.

12             Turning then to the first part.  Why is it so important for the

13     Appeals Chamber to confirm that Strugar's duties as a commander to

14     prevent the shelling preceded General Kadijevic's phone call and within

15     the confines of the indictment in this case, extended back to midnight on

16     6 December 1991.

17             It matters because it represents the difference between, on the

18     one hand, requiring that Strugar control a real and obvious risk of

19     shelling to ensure that the shelling of the Old Town never started, and

20     on the other hand, requiring only that he intervene once he's on notice

21     that damage to life and property is already happening.

22             Let's not forget what was at stake in the Old Town of Dubrovnik.

23             As the Trial Chamber specifically noted at paragraph 285, on 6

24     December, the Old Town was unique and irreplaceable not just because it

25     was a UNESCO World Heritage protected site but because it was a living

Page 170

 1     city with a resident population of about 7.000 to 8.000 people.

 2             When the JNA artillery turned on the Old Town on 6 December, two

 3     people were killed and two were seriously injured.  If Strugar had

 4     intervened to control the obviously risky situation developing within his

 5     units, those victims might have been spared.

 6             One of the victims was Tonci Skocko, a young man of about 19 who

 7     was killed very early in the attack at about 8.00 in the morning.

 8     Witness Nikola Jovic recounted counted for the Trial Chamber how when

 9     Tonci was hit by shrapnel, his father Mato risked his life going outside

10     the Old Town to get his car to race his son to hospital.

11             He said, "At the moment when Mato returned, he drove his car

12     through the Skalina, the streets, actually the stairs, the steps and his

13     tyres were totally deflated so that he actually drove on the tyre rims."

14             Jovic continued, "Well, you can imagine a person ... who saw this

15     happening to his own son.  You can imagine what kind of a reaction he

16     had.  The demeanour of his father is something that's hard to describe.

17     It is the demeanour of a father whose son is dying in his arms."  That's

18     at transcript 2944 to 2945.

19             Similarly, if Strugar had intervened to prevent the shelling ever

20     getting underway, the damage caused to the buildings of the Old Town on 6

21     December might have been averted.  ECMM representative Per Hvalkof

22     described the Old Town in the wake of the 6 December attack as looking

23     like "a missile garbage lot."  That's at trial judgement paragraph 316.

24             This description is visually confirmed by a film of the Old Town

25     taken during and after the 6 December attack and I'm going to play some

Page 171

 1     very brief excerpts from that film for you now.  And this was Exhibit P66

 2     at trial and the excerpts are taken at time markers 32 minutes 15 seconds

 3     to 28 seconds, and 34 minutes 51 seconds to 37 minutes.  And the latter

 4     is cited in the trial judgement at footnote 971.

 5                           [Videotape played]

 6             MS. JARVIS:  As witness Fietelaars, former Netherlands ambassador

 7     to the Yugoslavia put it, this damage done to the Old Town was "not only

 8     Croatia's problem; it's a problem of the whole world.  It's not only that

 9     within UNESCO the status of Dubrovnik was particularly pointed out as a

10     city of major importance of the human cultural heritage but also that

11     something that has played such a central role in European history for

12     almost 1.000 years should not be touched like that and it should not be

13     destroyed."  That's at transcript 4315.

14             The Trial Chamber in the Jokic sentencing judgement at paragraph

15     52 underscored this point, emphasising that once damage is done to

16     buildings like this, they can never be restored to their original state.

17             The Prosecution's first ground of appeal, then, is not just about

18     extending Strugar's duty to prevent by a further seven hours.  It's about

19     Strugar's duty as a commander to ensure that the shelling of the Old Town

20     never started and that no life and no part of the irreplaceable heritage

21     of humankind were lost.

22             This brings me to part 2 of my submissions which is to explain in

23     more detail the factual backdrop to this issue.

24             Even before Kadijevic's phone call to Strugar on the morning of 6

25     December, Strugar was on notice of a risky situation that could escalate

Page 172

 1     to the point where the Old Town of Dubrovnik was shelled.  Consider,

 2     Your Honours, the situation confronting Strugar on the eve of the Srdj

 3     attack.

 4             Strugar was the commander of JNA units who had been involved in a

 5     military campaign in the confined geographic region of Dubrovnik since

 6     October 1991.

 7             He knew that during combat operations in October, his forces had

 8     shelled the Old Town of Dubrovnik.  This shelling caused damage to

 9     several buildings.  Strugar knew that his forces had again shelled the

10     Old Town during combat operations between 10 and 13 November.  The

11     Trial Chamber, in particular, accepted that evidence that on the 12th of

12     November, the shelling of the Old Town had been deliberate and sustained.

13             Strugar knew that the October and November shelling was not the

14     result of isolated or uncharacteristic behaviour within his units.

15     Rather, it was symptomatic of a pervasive lack of discipline.  The

16     evidence revealed general problems within Strugar's units of unauthorised

17     weapons fire, refusal to carry out orders, looting, arson, and drinking.

18             Strugar knew that the October and November shelling occurred in

19     the course of attacks in which the JNA were seeking to capture territory

20     in the vicinity of Dubrovnik including in November, the very same

21     location being sought on 6 of December, Srdj.

22             He knew that existing orders prohibiting attacks on cultural

23     property and the Old Town had been ineffective in October and November.

24     He knew that he had not taken any steps to punish the perpetrators of the

25     previous shelling.

Page 173

 1             As the Trial Chamber put it at paragraph 415 and this should

 2     appear on your screens, Your Honours:  "There had been no example of

 3     adverse disciplinary or other consequences shown to those who breached

 4     the existing orders, or international law on previous occasions."

 5             Strugar knew that the 3rd Battalion of the 472nd Motorised

 6     Brigade was implicated in the November shelling and that he had ordered

 7     them into combat again on 6 December still under the same commander,

 8     Kovacevic, whose nickname was Rambo.  He knew this battalion was still

 9     equipped with substantial artillery just as they had been in November.

10     And Strugar also knew that the order to attack Srdj involved the prospect

11     that his forces might well have the need to shell wider positions in

12     Dubrovnik and that the plan for the attack on Srdj provided for the use

13     of "quite a formidable artillery capacity," most of which was capable of

14     firing at the Old Town.  That's paragraph 91 and 343 of the judgement.

15             The Trial Chamber accepted all of these factors and it

16     specifically found at paragraph 417 of the judgement that based on all of

17     these factors, even before he received the phone call from Kadijevic,

18     Strugar knew of, and again, the quote will appear on your screens:

19     " ... a real and obvious prospect, a clear possibility, that in the heat

20     and emotion of the attack on Srdj, the artillery under his command might

21     well get out of hand once again and commit offences of the type charged."

22             In the Chamber's view, "This was a risk that was not slight or

23     remote."

24             The Chamber at paragraph 420 fully accepted that this risk was,

25     and the quote is on your screens, "Sufficiently real and the consequences

Page 174

 1     of further undisciplined and illegal shelling so potentially serious that

 2     a cautious commander may well have thought it desirable to make it

 3     explicitly clear that the order to attack Srdj did not include authority

 4     to supporting artillery to shell, at the least, the Old Town."

 5             But the Chamber found that a superior like Strugar, who is on

 6     notice of such a real and obvious risk is not required to do anything.

 7     We submit that was wrong and that at that point, Strugar was obliged to

 8     control the situation and take preventative steps.

 9             This brings me to part 3 of my submissions concerning the

10     Trial Chamber's erroneous finding that Article 7(3) mens rea standard is

11     not met based on proof of a real and obvious risk of future crimes.

12             The Trial Chamber does not clearly state in the judgement why it

13     considers that, as a matter of law, a real and obvious risk of future

14     crimes is insufficient to trigger a superior's duty to prevent.  But

15     there are strong indications in the judgement that the Chamber

16     conceptualised a superior's duty to prevent as limited to situations

17     where crimes are either already underway or there is a definite plan by

18     subordinates to commit crimes which could have been discovered if

19     investigation had been carried out.

20             This is particularly evident at paragraph 416 where the Chamber

21     considers that a superior who is on notice of a risk of crimes must, and

22     the quote is on your screens, "At least investigate i.e., take steps

23     inter alia to determine whether in truth offences are about to be

24     committed, or indeed by that stage have been committed or are being

25     committed."

Page 175

 1             This particular lens for viewing superior responsibility is

 2     reflected again in paragraph 417 of the judgement where the Chamber

 3     points out that:  "This is not shown to be a case, for example, where the

 4     accused had information that before the attack, his forces planned or

 5     intended to shell the Old Town unlawfully, or the like.  It is not

 6     apparent that any additional investigation would have put the accused in

 7     any better position."

 8             We submit, Your Honours, that this approach cannot be correct

 9     because it leaves entirely unregulated situations where there is an

10     obvious risk that spontaneous or opportunistic crimes may be committed in

11     the future.

12             Let me give you an example to explain what I mean.  Consider,

13     Your Honours, the situation of a superior who knows that previously,

14     troops in one of his units who were stationed in a village were drinking

15     heavily, got drunk, and then massacred civilians.  These troops were

16     never punished and were then moved to another village.

17             This superior then finds out that troops from this unit have been

18     drinking heavily again.  What does the law require of a superior in this

19     kind of situation?  It must be that a superior, knowing of such a real

20     and obvious risk that crimes will be repeated against civilians must

21     intervene to diffuse the situation.

22             For example, by immediately removing the troops or sending in

23     reinforcements to keep the troops under control.

24             An investigation by a superior at this point would not reveal

25     that crimes were pre-planned, but it would be an entirely unsatisfactory

Page 176

 1     outcome if this superior was allowed to do nothing until civilians were

 2     actually being massacred.  We say the situation confronting Your Honours

 3     here is similar.

 4             In our brief and our supplementary filing of 1 October 2007, we

 5     have set out extensive argument explaining why the Trial Chamber's

 6     approach is contrary to the case law of this Tribunal, World War II case

 7     law, state practice, and the rationale underpinning the superior

 8     responsibility doctrine.

 9             Today all I want to do is highlight two cases before this

10     Tribunal that show the Trial Chamber's approach in the present case was

11     in error.

12             The first of those is the Krnojelac appeal judgement.

13     Your Honours, the language used by the Krnojelac Appeals Chamber confirms

14     that a real and obvious risk of future crimes is sufficient to trigger a

15     superior's duty to prevent.

16             The language is set out in full in our brief at paragraph 2.26,

17     but in essence, the Krnojelac Appeals Chamber accepted that a superior

18     who is on notice of a risk of crimes or that crimes might subsequently be

19     committed must take steps to prevent those crimes.

20             The factual analysis in Krnojelac, particularly on the crime of

21     torture is instructive.  The Krnojelac Trial Chamber had found that the

22     fact Krnojelac witnessed the torture of one particular detainee in the

23     KP Dom prison, a person called Zekovic, was not of itself sufficient to

24     trigger Krnojelac's duty to prevent the recurrence of such tortures in

25     the future.

Page 177

 1             The Appeals Chamber specifically overturned this finding at

 2     paragraph 169 and the quote will appear on your screens.  "The Appeals

 3     Chamber does not share the Trial Chamber's opinion that the fact that the

 4     accused witnessed the beating of Zekovic, ostensibly for the prohibited

 5     purpose of punishing him for his failed escape is not sufficient, in

 6     itself, to conclude that the accused knew or had reason to know that

 7     other than in that particular instance, beatings were inflicted for any

 8     of the prohibited purposes."

 9             Importantly, the Appeals Chamber found that based on Zekovic's

10     torture, in the context of the prevailing circumstances of the KP Dom

11     prison at the time, Krnojelac had reason to know that his subordinates

12     might commit other acts of torture in the future and held him responsible

13     for failing to prevent those future crimes.

14             Again, Your Honours, this was not a case where any investigation

15     carried out by Krnojelac after witnessing Zekovic's torture would have

16     necessarily revealed a plan to commit future tortures.  But nevertheless,

17     Krnojelac was considered to be on notice of future crimes and held

18     responsible for failing to prevent.

19             The second case I want to refer to is the Hadzihasanovic appeal

20     judgement which was rendered yesterday.  And this judgement supports the

21     Prosecution's appeal in the present case.  I have five brief points that

22     I want to make in relation to this case.

23             First of all, the Hadzihasanovic appeal judgement at paragraph 31

24     confirms that the relevant mens rea threshold for Article 7(3) is notice

25     of a risk of crimes or that crimes might be committed in the future.  We

Page 178

 1     say this accords with the Krnojelac appeal judgement which used the very

 2     same language.

 3             The Appeals Chamber has therefore accepted that a superior who is

 4     on notice of a possibility of future crimes has reason to know within the

 5     meaning of Article 7(3).  This is also consistent with the Delalic appeal

 6     judgement at paragraph 238 which states that, "a showing that a superior

 7     had some general information in his possession, which would put him on

 8     notice of possible crimes -- possible unlawful acts by his subordinates

 9     would be sufficient to prove he had reason to know."

10             Certainly, Your Honours, the Prosecution does not suggest that

11     notice of a slight or remote possibility would be sufficient to incur

12     criminal liability but Strugar, having reason to know of a real and

13     obvious risk of the shelling of the Old Town must fall within the

14     threshold that has been articulated by the Appeals Chamber.

15             Secondly, the Hadzihasanovic Appeals Chamber expressly accepted

16     that a superior's knowledge of and failure to punish past crimes is

17     relevant in assessing the risk of future crimes.  For example, at

18     paragraphs 30 and 267.

19             The third point is that the Hadzihasanovic Appeals Chamber

20     emphasised that the assessment of risk must be done in light of the

21     specific circumstances of each case.  There is no automatic formula for

22     proving that a superior has reason to know.  That's at paragraph 31.

23             I submit that what this means is that when it comes to notice

24     based on past criminal conduct, those crimes must be committed in

25     circumstances alerting a superior to the real possibility that they might

Page 179

 1     be repeated again in the future.  For all the reasons I've given in the

 2     beginning of my submissions today, this is such a case.  We are dealing

 3     here with a repeated pattern of past crimes which went unpunished and in

 4     light of pervasive disciplinary problems and all the other contextual

 5     factors that I've mentioned.

 6             The fourth point from Hadzihasanovic is that the

 7     Appeals Chamber's application of the law to the facts underscores the

 8     validity of the Prosecution's appeal in this case.  In particular,

 9     concerning detention crimes in Bugojno, the Appeals Chamber overturned

10     the Trial Chamber's finding that Hadzihasanovic failed to take necessary

11     and reasonable measures to prevent the crimes at the furniture salon

12     which was the trigger for his duty to prevent subsequent crimes.  It's a

13     very different situation to the present case where Strugar took no steps

14     in respect of the prior shelling of the Old Town.

15             THE INTERPRETER:  Would you mind slowing down?

16             MS. JARVIS:  And the risk of future crimes was further heightened

17     by the series of other factors that I've mentioned.

18             Concerning the plunder in Vares, the Appeals Chamber overturned

19     the finding that Kubura had reason to know of plunder in Vares just

20     because he knew that plunder had previously been committed in Ovnak some

21     five months earlier and 40 kilometres removed.  But again, contrast that

22     to the situation here where the mid-November shelling of the Old Town

23     occurred just a few weeks before the same conduct was repeated in exactly

24     the same place on 6 December.

25             My fifth and final point from Hadzihasanovic is that the

Page 180

 1     Appeals Chamber stated that a superior who is on notice of a risk that

 2     crimes might happen in the future is required to investigate further.

 3     This is an important point, Your Honour, and we submit that this should

 4     not be understood as a statement that a superior's duty to prevent only

 5     applies where an investigation would have revealed with certainty that

 6     the crimes were planned or already underway.

 7             We submit that the Appeals Chamber in Hadzihasanovic did not

 8     intend to exclude situations where a superior knows spontaneous or

 9     opportunistic crimes might occur.

10             Your Honours, the Prosecution requests that the Appeals Chamber

11     in this case clarify that a superior who has notice of a real possibility

12     of future crimes is required not only to investigate but to take the

13     necessary preventative steps to address the known risk and, in addition,

14     that if a superior fails to do so, criminal -- and the crimes

15     subsequently occur, criminal liability will result.

16             This brings me to the final part of my submissions and I can be

17     very brief so as to conclude before the break.

18             Accepting that even prior to Kadijevic's phone call, Strugar had

19     a duty to take preventative measures, what should be the outcome in this

20     case?

21             I submit that that question is easily answered on the facts as

22     found in the trial judgement.  At paragraph 421, the Trial Chamber

23     expressly found that when issuing his order to attack Srdj, Strugar could

24     have, but did not, specifically clarify that the Old Town must not be

25     shelled.

Page 181

 1             That, of itself, is sufficient to show that Strugar failed in his

 2     duties as a commander to prevent the crimes prior to 7.00 a.m. on 6

 3     December.

 4             In our brief, we've also outlined other necessary and reasonable

 5     preventative measures that were argued at trial that Strugar could have

 6     also taken.

 7             Your Honours, that concludes my submissions and I would be happy

 8     to assist with questions if you have any at this point.

 9                           [Appeals Chamber confers]

10             JUDGE VAZ: [Interpretation] We have no questions.  We are going

11     to have a 20-minute break.  We will resume at five past 4.00.  The

12     hearing stands adjourned.

13                           --- Recess taken at 3.45 p.m.

14                           --- On resuming at 4.08 p.m.

15             JUDGE VAZ: [Interpretation] The hearing is resumed.  I see -- I

16     believe that Judge Kwon wants to put a question to Ms. Jarvis.

17             JUDGE KWON:  Thank you, Madam President.

18             Ms. Jarvis, I have been interested in the issue of notice of risk

19     that would sufficiently trigger the superior's obligation pursuant to

20     7(3).  I understand that the Prosecution's argument in this case is that

21     the fact in this case may well fall within the sphere of higher standard.

22     However, the standard you put forward seems to be a bit lower one.

23             For example, I can refer to the -- your appeal brief, page 11,

24     paragraph 225 where you say:  "Notice of risk of criminal conduct is

25     sufficient to trigger a superior's duty under Article 7(3) insofar as for

Page 182

 1     mens rea."  When I read this paragraph, I was wondering what degree of

 2     risk you would mean and whether we could -- we would be able to formulate

 3     a workable standard in practice.

 4             However, I noted and I was pleased to hear that you submitted a

 5     few minutes ago that "the Prosecution does not suggest that notice of a

 6     slight or removed possibility will be sufficient to incur criminal

 7     liability but Strugar having reason to know of a real and obvious risk of

 8     the shelling of the Old Town must fall within the threshold that has been

 9     articulated by the Appeals Chamber."

10             I also remember in Krnojelac and the -- which is also cited

11     Hadzihasanovic recently, referred to sufficiently alarming informations.

12     And I also remember Ms. Baig referring to real and unreasonable notice

13     this morning, although the transcript reads real and reasonable.

14             So you would agree with the qualifying adjective, the real and

15     obvious, that was my question.

16             MS. JARVIS:  Thank you, Your Honour.  I can perhaps begin my

17     response by saying that as I've mentioned, the language of the

18     Appeals Chamber to date in cases like Krnojelac and more recently

19     Hadzihasanovic has specified that a risk or the possibility that crimes

20     might happen in the future will trigger a superior's duty under

21     Article 7(3) so that's as much clarification as we have in the case law

22     at the moment, so that's the basis for our submission.

23             I have said in my submission today that we interpret this

24     language, and particularly the use of the word "might" by both the

25     Krnojelac Appeals Chamber and the Hadzihasanovic Appeals Chamber as

Page 183

 1     confirming that a possibility of future crimes is sufficient and I've

 2     mentioned that language is consistent with the Delalic Appeals Chamber on

 3     this point as well.  But as I also said, a possibility is a broad term

 4     and there can certainly be high possibilities and lower possibilities and

 5     we certainly don't suggest that a low possibility would be appropriate,

 6     that it must be, as Your Honour has said, something alarming enough to

 7     propel the superior into action to take preventative steps.

 8             The reason why we've brought this ground of appeal in this very

 9     case is precisely because the Chamber's language indicates it was a real

10     and obvious risk and it is problematic to suggest that a superior who is

11     on notice of that kind of a risk, that degree of risk is not required to

12     do anything and we say that's inconsistent with previous case law.

13             Your Honours also referred to the formulation of a real and

14     reasonable risk or a real and reasonably foreseeable risk and

15     Your Honours, that language was used by the Hadzihasanovic Trial Chamber.

16     They considered this precise issue and they looked at the Strugar trial

17     judgement and said, we don't agree with that kind of approach because we

18     think effectively that means a superior doesn't have to do anything until

19     crimes are already happening; that can't be right.  We of course agree

20     with that.  It's the very position that we're running in this case.

21             This formulation of a real and reasonably foreseeable risk, we

22     say, is an appropriate one and we see it as essentially the same as a

23     real and obvious risk which is what the Trial Chamber has used in the

24     present case.  We say that those are all acceptable formulations and fit

25     within the Tribunal's existing case law.  But certainly, Your Honours,

Page 184

 1     this would be a juncture at which, if the Appeals Chamber was to clarify

 2     the risk standard that is applicable, that would be of great assistance

 3     for future cases and the jurisprudence of the Tribunal more generally.

 4             JUDGE KWON:  Thank you.

 5             JUDGE VAZ: [Interpretation] Judge Shahabuddeen.

 6             JUDGE SHAHABUDDEEN:  Would you go for real and present danger?

 7             MS. JARVIS:  I'm sorry, Your Honour, I missed the first part of

 8     your question.

 9             JUDGE SHAHABUDDEEN:  Would you go for real and present danger?

10             MS. JARVIS:  In fact, Your Honour, we submit that that kind of

11     language is around the mark of what we're talking about and that it

12     actually accords with another formulation of the Hadzihasanovic

13     Trial Chamber.  Throughout the judgement, they use slightly different

14     formulations and one of the formulations is actually a real and present

15     risk.  And we submit that they all amount to the same thing.  And

16     Your Honour Judge Kwon is right to say what you are looking for is a

17     situation where there is sufficiently alarming information to require a

18     superior to act.  A real and present danger, a real and obvious risk, a

19     real and reasonably foreseeable risk, we say, that's what we're looking

20     for in these cases.

21             JUDGE VAZ: [Interpretation] The Prosecution still has the floor

22     for the remainder of its submissions.

23             MS. BRADY:  Thank you, Your Honours.

24             I'll now turn to the Prosecution's third ground of appeal on the

25     sentence.

Page 185

 1             Your Honours are aware of the findings in this case which have

 2     been -- many of which have been highlighted during this appeals hearing.

 3     In essence, General Strugar stands convicted under Article 7(3) for

 4     failing to prevent and failing to punish the deliberate and

 5     indiscriminate shelling of the World Heritage listed Old Town of

 6     Dubrovnik by forces under his command.  And as we've seen in Ms. Jarvis's

 7     presentation, the shelling led to extensive damage to civilian and

 8     cultural property, as well as civilian deaths and injuries.

 9             In our submission, the eight-year sentence that he received is

10     manifestly inadequate and should be increased.  Our detailed arguments

11     are set out in our appeal brief so today I will merely highlight two main

12     points.

13             First, the Trial Chamber's erroneous comparison of Strugar's case

14     with Jokic's case which contributed to the Trial Chamber's selection of a

15     too lenient sentence for Mr. Strugar.  And in this, I will be focussing

16     on two sets of -- two key sets of differences between the two accused.

17     Firstly, their respective levels of authority in the command structure,

18     and their roles on the day of the shelling; and secondly, differences

19     arising from Jokic's plea of guilt and his substantial cooperation with

20     the Prosecution.

21             The second point I'll be highlighting today concerns the

22     Trial Chamber's error in having regarded the statement which Strugar made

23     at the end of his trial as one of remorse and according it weight in

24     mitigation.

25             I'll turn now to the main thrust of our appeal and that is the

Page 186

 1     Trial Chamber's comparison with Jokic's sentence.

 2             Just to briefly recap:  Admiral Jokic pleaded guilty and was

 3     convicted under Article 7(1) for aiding and abetting the units

 4     responsible for the shelling of the Old Town, and Article 7(3) for

 5     failing to prevent and punish their crimes.  He was sentenced to seven

 6     years by the Trial Chamber.

 7             On appeal, the Appeals Chamber upheld his Article 7(1) conviction

 8     for aiding and abetting, vacated his Article 7(3) conviction in light of

 9     his Article 7(1) conviction, and affirmed his seven-year sentence.

10             Now, we say that the Strugar Trial Chamber was not wrong to use

11     Jokic's 7-year sentence as a reference point, as a comparative reference

12     point.  Both accused were convicted for essentially the same crimes

13     arising from the shelling of the Old Town and for essentially the same

14     criminal conduct.  Jokic for aiding an abetting which was based on his

15     failure to prevent them.  And Strugar for failing to prevent and punish

16     the crimes.

17             But there are significant differences between the two accused.

18     Where the Trial Chamber erred was by not considering or not properly

19     considering these significant differences which should have led to a far

20     greater divergence in their sentences than merely the one year that

21     presently separates them.  As I mentioned, the two main ones being their

22     relative levels of authority in the JNA command structure and their roles

23     on the day of the shelling; and secondly, the set of circumstances

24     arising from Jokic's plea and cooperation.

25             Turning first to their relative levels in the command structure

Page 187

 1     and their roles that day and this corresponds to our first sub-ground in

 2     this ground of appeal.

 3             The Trial Chamber was wrong in paragraph 464 in treating Strugar

 4     and deeming that Strugar was "more remotely responsible" than Jokic, the

 5     immediate and direct commander of the forces involved in the shelling.

 6     It goes without saying from what I'm about to say that we disagree with

 7     the Defence's arguments which have been put in their briefs about the

 8     respective differences in their levels and their roles.

 9             Although they held equivalent military ranks, at the time of the

10     operations, General Strugar was hierarchically senior to Admiral Jokic in

11     the JNA military chain of command.  This difference in hierarchy was very

12     significant.  We mustn't forget, Strugar was the most senior operational

13     commander in the area at that time.  All forces in the area operated

14     under his command.

15             In our submission, this position, or rather, this level of

16     authority makes him more responsible and not as the Trial Chamber found

17     less so.

18             Why do we say this?  As it was stressed in yesterday's

19     Appeals Judgement in the Hadzihasanovic case, a high level of authority

20     does not necessarily attract greater responsibility.  A position or a

21     level of authority does not per se lead to increased responsibility.

22     But, as that judgement, the Hadzihasanovic judgement recognises, in

23     paragraph 320, the superior's abuse of that level of authority can be

24     taken into consideration.  We of course recognise that gradation of

25     sentences based on seniority is not an absolute principle, but in this

Page 188

 1     case it is warranted.

 2             Why?  Strugar's more senior level in the JNA military chain of

 3     command necessarily entrusted upon him more responsibilities.  He was an

 4     army corps commander.  By failing to properly perform those heightened

 5     responsibilities, his abuse of authority, his very senior level of

 6     authority can be said to be greater than Jokic's.  His higher level of

 7     command authority also meant that when he abused that authority, this had

 8     more far-reaching consequences.  In a military command structure, one

 9     which is based on orders which must be followed, as a commander grows in

10     seniority, the number of units under him who may not perform as they

11     should, and be encouraged by failures and inaction to not perform as they

12     should grow exponentially.

13             But it's not just that Strugar was in charge, in overall charge

14     of the units.  In many ways, factually, at the time, at the relevant

15     time, General Strugar had more control over the perpetrators of the

16     crimes that day and more ability to prevent their crimes than did Jokic.

17             It's true, we take no issue with the fact that Jokic was the

18     immediate commander of the 3rd Battalion of the 472nd Motorised Brigade

19     and the other 9 VPS units involved that day and we agree that at least in

20     the morning hours of that day, Jokic was somewhat geographically closer

21     to Zarkovica and Dubrovnik.

22             But it was Strugar who the Trial Chamber found ordered the attack

23     on Srdj, not Jokic.  And it was Strugar who could order Jokic, not the

24     other way around.  Strugar, in fact, had a greater ability to control the

25     units that day and to ensure such crimes did not continue once he was

Page 189

 1     upon notice of them.  On the Trial Chamber's findings, he took no steps

 2     or at best wholly ineffective ones.

 3             So that's our first point, that the Trial Chamber was wrong to

 4     characterise Strugar as more remotely responsible than Jokic when

 5     sentencing him.

 6             I'll turn now to the second set of key differences between the

 7     Strugar and Jokic cases which the Trial Chamber also paid insufficient

 8     regard to when sentencing Strugar.  This corresponds to the third

 9     sub-ground of this ground of appeal.

10             It boils down to this:  Jokic pleaded guilty.  Jokic cooperated

11     substantially with the Prosecution, testifying as a key witness in this

12     case and in fact, the Jokic Trial Chamber called Jokic's plea and

13     cooperation when they were sentencing Jokic, "exceptionally important,"

14     exceptionally important mitigating factors.  That's at the Jokic

15     sentencing appeal judgement, paragraph 114.  And yet, even though the

16     Strugar Trial Chamber mentioned the plea of guilt from Jokic, it failed

17     to even mention the significance that Jokic's cooperation would have had

18     on the Jokic Trial Chamber's choice of a seven-year sentence.

19             These key mitigating factors in Jokic's case which the

20     Trial Chamber used to significantly decrease his sentence, the plea of

21     guilt, the cooperation, are simply not present in Strugar's case.  And

22     the one year difference in their sentences, seven years for Jokic, eight

23     years for Strugar, fails to reflect this, particularly -- particularly

24     when we bear in mind what I've already said about their levels of

25     authority and their roles.

Page 190

 1             Before I turn to our final point concerning remorse, and this

 2     would be a convenient point in which I will make a few remarks on the

 3     Defence's argument that Jokic is in fact more criminally responsible than

 4     Strugar.  He's made them in the briefs both in support of his own appeal

 5     and in response to ours.  He basically argues Jokic was convicted of six

 6     counts, Strugar only two.  He mentions the more property damage which

 7     Jokic pleaded to and the fact that Jokic was convicted under Article 7(1)

 8     for aiding and abetting which they allege is a more direct form of

 9     liability.

10             None of these arguments have merit.  The gravaman of the

11     crimes -- the gravaman of the crimes of Strugar and Jokic are essentially

12     the same and the fact that Jokic was cumulatively convicted of six

13     offences to which he pled guilty and Strugar only two arising out of the

14     same criminal activity doesn't change that.  Nor does the somewhat wide

15     of scope of damage that Jokic pleaded to.

16             Just because Jokic was convicted under Article 7(1) does not make

17     this more -- does not per se make this more serious.  As a matter of law,

18     Article 7(3) crimes are not inherently less serious than Article 7(1)

19     crimes and especially when, as here, the basis for Jokic's aiding and

20     abetting conviction is precisely because he failed in his duty as a

21     superior that day and thus to prevent the crimes.  We have, in effect,

22     different labels but the same essential criminality.

23             I will now turn to our final point which is that the

24     Trial Chamber erred in treating the statement made by Strugar at the end

25     of his trial as sincere remorse is sufficient to qualify as a mitigating

Page 191

 1     factor.  This is the error in paragraphs 470 and 471 and this is our --

 2     corresponds to our second sub-ground of appeal in this ground of appeal.

 3             In making this submissions, we recognise that the Trial Chamber

 4     may only have given limited weight in mitigation to this factor, to this

 5     statement.  However, in our submission, having given it any credit was

 6     wrong.

 7             Remorse is -- by it's very nature, a subjective experience.  It

 8     can only -- its presence can only be established by either the words used

 9     or by being backed up with objective criteria, objective indicia.  But in

10     this case, if you look at General Strugar's statement, the one that he

11     gave at the end of the trial, he gave what could only be called a

12     generalized apology for the harms of war.  He denied any personal

13     wrongdoing or responsibility.  He even failed to acknowledge that crimes

14     occurred.  In our submission, this sort of statement simply cannot

15     qualify as remorse sufficient to be a mitigating factor in sentence.

16             I invite Your Honours to compare Strugar 's statement that he

17     gave at the end of the trial with the qualitatively different situation

18     of sincere remorse expressed in the Jokic case.  In the briefs, the

19     Defence has tried to compare the statements made by Jokic and Strugar

20     both at the time of the events, that is on the 6th and 7th of December

21     when there was some apologies made to the Croatian side, and also tries

22     to compare the statements they each made at their respective hearings and

23     they argue basically, look, they're very similar in content.

24             This technique, this parsing or this hyper-textual examination of

25     their words misses the main point, the main point of difference.  Unlike

Page 192

 1     Strugar's words, Jokic's words at trial and at the time were fully backed

 2     up by objective evidence of his remorse, his plea of guilt, and his

 3     substantial cooperation.  And General Strugar cannot claim either of

 4     those.

 5             The Defence has highlighted in their briefs the

 6     Vasiljevic Appeals Judgement which affirms that it is possible for an

 7     accused to express sincere regrets without admitting his participation in

 8     a crime.  In other words, that going to trial doesn't preclude an accused

 9     from demonstrating sincere remorse.  Remorse doesn't require an admission

10     of criminal guilt.  This may very well be true.  But this doesn't mean

11     that an accused who elects to go to trial can always get the benefit of

12     the mitigating factor of remorse.

13             Now, the accused, of course, has the right to plead not guilty.

14     He has the right to fully defend the charges against him or her.

15     However, there may be consequences of strategies pursued at trial such as

16     running a full defence on crime base, on responsibility, on links, there

17     may be consequences of putting forward a series of alternative defences

18     as was done in this case, and one of those consequences may be that the

19     accused simply is no longer able to avail himself of remorse as a

20     mitigating factor.

21             The Vasiljevic Appeals Judgement stands for the proposition that

22     going to trial is not necessarily inconsistent with expressing remorse,

23     but it does not mean that all accused persons who are left to go to trial

24     have the right to claim remorse as a mitigating factor, and nor that

25     every -- each and every general statement of sorrow will necessitate a

Page 193

 1     sentencing reduction.

 2             In our submission, more is needed than simply a broad apology

 3     without even admitting that crimes occurred, let alone any personal

 4     responsibility.  This is for the reason -- this is for the reason that

 5     these types of statements do not serve any of the purposes or goals of --

 6     any of the purposes or goals in sentencing which remorse seeks to achieve

 7     in the context of an international Tribunal, that is reconciliation,

 8     affirmative prevention and rehabilitation.

 9             We ask you to increase the sentence to more appropriately reflect

10     his culpability.  In terms of a concrete figure, at trial the Prosecution

11     asked for a range of 13 to 15 years.  Based on the convictions as found

12     by the Trial Chamber, and bearing in mind Jokic's sentence, in our

13     submission, an appropriate sentence by the Trial Chamber should have been

14     in the range of 10 to 12 years and not 8 years.

15             The last point I wish to address is the Defence's submission that

16     asked you to consider Strugar's present health situation, what they say

17     is the deteriorated health situation since his trial and sentence, since

18     the judgement came out three years ago.

19             We've already said the Trial Chamber already considered

20     Mr. Strugar's poor health situation at the time of his trial and for the

21     purposes of his sentencing and there's no error in the exercise of its

22     discretion in having considered that factor.  So in fact, I'm confining

23     my remarks purely to Mr. Strugar's health insofar as it may have

24     deteriorated since that time.

25             In our submission, if Your Honours reach the point where you

Page 194

 1     resentence General Strugar, either because you uphold our first ground of

 2     appeal and thereby widen the scope of his conviction, or because you find

 3     error and you uphold either sentence appeal, either the Defence's or the

 4     Prosecution's appeal against sentence on the basis that the Trial Chamber

 5     erred, then our answer would be yes, in the exercise of your discretion,

 6     you may consider evidence that the accused's health has significantly

 7     worsened since trial.  And I say this on the basis of the Celebici

 8     Sentencing Appeals Judgement on the 3rd of April, 2003, paragraphs 11 to

 9     15 which would allow that.

10             However, in our submission, this would call for a careful

11     exercise of your discretion.  In the past, when you've been confronted by

12     evidence on appeal of an accused's changed personal circumstances since

13     trial, more often than not, you have not allowed in such evidence in the

14     exercise of your discretion.  For example, in the Zoran Zigic case when

15     he tried to put forward further evidence on appeal of his post-sentence

16     behaviour in the UNDU, and also in the Celebici Appeals Judgement itself,

17     the Appeals Chamber also did not accept evidence of this changed

18     circumstances.

19             However, throughout these appeal proceedings over the past three

20     years, I think it would be fair to say that both parties and the

21     Appeals Chamber have been cognizant of the special health aspects of

22     General Strugar's case.  Mr. Rodic mentioned reports that have been filed

23     over the past few years in 2004, I believe, 2005, 2006.

24             So if you come to the stage where you're determining a new

25     sentence for General Strugar, you may decide that this is such a case to

Page 195

 1     exercise your discretion and consider his present state of health.  We

 2     know about the reports that have been put forward by the Defence.  So

 3     long as that evidence were capable of showing to Your Honours'

 4     satisfaction that there had been a deterioration in his health, it would

 5     not be an inappropriate exercise of your discretion, in our submission,

 6     to take those into account.

 7             That concludes my -- the Prosecution's submissions on sentence as

 8     well as the Prosecution's appeal.  So unless there are any questions,

 9     that concludes from us.

10             JUDGE VAZ: [Interpretation] Judge Shahabuddeen has a question for

11     you.

12             JUDGE SHAHABUDDEEN:  One question, Ms. Brady.  You have cited the

13     Vasiljevic case in support of the proposition that a defendant need not

14     admit to the crimes alleged against him, whether he can, without making

15     that admission, claim mitigation.  Now, you said more is needed than a

16     broad apology without admitting that crimes occurred.

17             Now, if you were Defence counsel advising your client, you would

18     want to know what more is needed than a broad apology if it is the case

19     that he need not admit that any crimes occurred.

20             MS. BRADY:  Yes, Your Honour.  The Vasiljevic judgement actually

21     says that an accused -- it is possible for an accused to express sincere

22     regrets without admitting his participation in a crime.

23             In our submission, what would need to be done at a minimum, and I

24     believe this is where, in the past, Trial Chambers and Appeals Chambers

25     have allowed or affirmed statements made as remorse in this situation

Page 196

 1     where the person at least admits that some wrongdoing, some crime or

 2     wrongdoing was perpetrated.  He can still, of course, run his Defence

 3     and -- run the defence that he himself bears no responsibility.  His

 4     participation is nil, if that's his defence, but at some level, that some

 5     wrongdoing, some crimes occurred.

 6             For example, in the Musema case where there was no admission by

 7     the accused that he had participated or had responsibility for what had

 8     occurred in the genocide, however, he admitted that genocide had

 9     occurred.  So at some level there has to be an acknowledgment of that

10     wrongdoing or a crime.

11             JUDGE SHAHABUDDEEN:  I see.  I thank you.

12             JUDGE VAZ: [Interpretation] Very well.  Thank you, Ms. Brady.

13             You have finished your presentation, have you?  Very well.  Thank

14     you.

15             Mr. Rodic, you have the floor.  You may proceed.

16             MR. RODIC: [Interpretation] Your Honour, if I could just ask you

17     to allow me three minutes in the context of my previous question to

18     respond to what Prosecutor Brady said in response to the Judge's

19     questions and then my colleague will take over.  Just two minutes.

20             JUDGE VAZ: [Interpretation] Very well.  Go ahead.

21             MR. RODIC: [Interpretation] Thank you.  My learned friend

22     mentioned responding to the question posed by Honourable Judge Meron

23     referring to transcript page 4086 to 4087 that upon return from Belgrade,

24     Admiral Jokic allegedly spoke to General Strugar about the way to cover

25     up events in the Old Town and events related to the shelling of the

Page 197

 1     Old Town.  I must say that such statements are not contained in the

 2     judgement, in the trial judgement, because the Trial Chamber did not

 3     accept that.

 4             Jokic, who was desperately fighting for a better position and a

 5     milder sentence at the time when he was testifying in the Strugar case

 6     gave evidence that was, like in many other cases, full of different

 7     versions and contradictions.  His evidence is an attempt to present a

 8     version to the Croatian public and there is no corroborating evidence

 9     that would confirm such claims made by Jokic.  Therefore, the

10     Trial Chamber completely ignored this part of Jokic's testimony.

11             The issue was the punishment for Kovacevic and why Jokic did not

12     punish him.  If we look at the consequences of the investigation and the

13     taking of various steps, and if we take that it is very important as it

14     is important to us, to determine the conduct of Jokic on the 5th of

15     December, if Jokic was planning with Kovacevic and giving orders to

16     Kovacevic without the knowledge of the 2nd Operations Group, then the

17     involvement of Kovacevic is much greater and the blame is laid -- and

18     left Colonel Jovanovic who ended up punished.  Jovanovic who, as the

19     Trial Chamber established, was not able to use his artillery against the

20     Old Town.

21             In response to the Judge's questions, my learned friend said that

22     at 7.00 in the morning, Strugar was informed by Kadijevic that the

23     Old Town had been shelled and then he proceeded to call Jokic; however,

24     this is a misinterpretation.  At that moment, Kadijevic could not have

25     known anything about the Old Town and thus Strugar was unable to know and

Page 198

 1     he could not intervene in the area of Dubrovnik.  The Trial Chamber also

 2     accepted that in its judgement.

 3             MR. PETROVIC: [Interpretation] Your Honour, if you allow me, I

 4     would like to respond to the appeals of the Prosecution.

 5             This is the response of the Defence to the Prosecution's appeals

 6     brief and the arguments presented today.  These arguments are very

 7     similar to the written filings of the Prosecution.  To these written

 8     filings, the Defence has responded in detail, and the Defence stands by

 9     its reply to the Prosecution's appeal.  We do wish to highlight certain

10     points that we feel could be useful to the Appeals Chamber in making its

11     decision.

12             The first appeals ground of the Prosecution regards the

13     obligation of the accused to prevent crimes by his subordinates in

14     keeping with Article 7(3).  The Prosecution argues that the Trial Chamber

15     erred in finding that Strugar did not know or had reason to know that his

16     subordinates would commit a crime during the attack on Srdj and this

17     concerns the attack on Srdj of the 6th December, 1991, which, in the

18     finding of the Trial Chamber was ordered by Strugar.

19             The Prosecutor argues that Strugar had the obligation to take

20     steps to prevent the Old Town from being shelled during that attack and

21     he had this obligation from the moment on the 5th of December when he

22     ordered the attack, that is, from 0000 hours on the 6th of December,

23     1991, bearing in mind the time frame set by the indictment.

24             This ground of appeal rests on the assumption which underlies the

25     very trial judgement.  The underlying premise in the trial judgement,

Page 199

 1     namely that Strugar ordered the attack on Srdj on the 6th of December,

 2     1991.

 3             First and foremost, the Defence emphatically rejects the

 4     proposition that Strugar ordered the attack on Srdj as stated in the

 5     judgement.  The Appeals Chamber has already had occasion to hear our

 6     arguments on this subject.

 7             In this response to the Prosecution, the Defence will not repeat

 8     any of the arguments regarding the error in fact made by the

 9     Trial Chamber in the finding that Strugar gave the order to attack.  All

10     this is contained in the response by the Defence.

11             This ground of appeal of the Prosecution obtains if, and only if

12     the Appeals Chamber does not accept the key ground of appeal of the

13     Defence.  If the Appeals Chamber takes the position that there was no

14     order, the Defence believes that it is superfluous to discuss the scope

15     of his obligation to prevent acts referred to in this ground of appeal of

16     the Prosecution.

17             If, however, the Appeals Chamber rejects the appeal of the

18     Defence in this segment, then the Defence would wish to highlight certain

19     reasons which, as we believe, justify the position of the Trial Chamber

20     in this part.

21             The Defence understands that the Prosecution draws from the legal

22     reasoning of the Trial Chamber the conclusion that the Trial Chamber sees

23     the responsibility of the superior only when a crime is certain, for

24     instance, when it is preplanned.  In other situations, in the

25     interpretation of the Prosecution, the Trial Chamber does not imply the

Page 200

 1     superior's obligation to act.

 2             In fact, the Prosecution erroneously concludes that the

 3     Trial Chamber requires as a condition for a superior's responsibility

 4     that the superior knows or has reason to know only if there is certainty

 5     that the crime will occur.  This conclusion of the Prosecution is

 6     inaccurate.  It is our assertion that the Trial Chamber does not deviate

 7     from the accepted interpretation of requirements for responsibility under

 8     Article 7(3).  On the contrary, the finding of the Trial Chamber is a

 9     result of a careful evaluation made by the Trial Chamber, namely of the

10     circumstances whether the superior knew or had reason to know.  This

11     evaluation also covers real and obvious risk.  This evaluation is made

12     regardless of the issue of existence or non-existence of a plan of attack

13     or plan to commit crimes.

14             In this careful evaluation, the Trial Chamber took into account

15     all the factors and reviewed them thoroughly.  The factors taken into

16     account by the Trial Chamber are enumerated in paragraphs 32 and 33 of

17     the Defence response brief.

18             All these facts are evaluated by the Trial Chamber in the context

19     of the existence of a real and obvious risk that the JNA would shell the

20     Old Town in the course of executing the action on Srdj.  All these facts

21     that the Chamber analyses are a risk evaluation, that is an evaluation of

22     whether the accused in this context knew about that risk or had reason to

23     know.

24             The Chamber evaluates the risk, it does not look for certainty

25     that a crime will occur, and it does not look for a plan that would imply

Page 201

 1     Strugar's obligation to act.  In this evaluation of risk, the Chamber

 2     only quotes as an example a situation that the -- where the superior had

 3     information that forces under his control were planning to commit a

 4     crime.  The Chamber uses this as an example, not a condition, not a

 5     requirement.

 6             The Prosecutor, in fact, disagrees with the results of the

 7     factual risk evaluation, not with the legal position of the

 8     Trial Chamber.  It seems that the Prosecution takes as a standard for

 9     Article 7(3) in such a way that the superior would have notice of risk in

10     every case when he has information that certain subordinates had

11     committed certain crimes earlier.

12             The Defence is under the impression that the approach of the

13     Prosecution implies an automatic formula.  And the Defence believes that

14     instead, on this point, an evaluation has to be made as well,

15     particularly because in relation to events in October and November 1991,

16     there is a whole series of factually contestable issues, what crimes were

17     involved, who committed the crimes, where it was established that events

18     from October and November could be characterised as crimes, and

19     especially whether these crimes had the same elements as the crimes that

20     occurred on the 6th December 1991.  It is also very important who

21     committed these alleged crimes.

22             In relation to the shelling of October 1991, the evidence led

23     clearly indicates that it was not the unit that Strugar allegedly ordered

24     to take Srdj on the 6th of December 1991; the 3rd Battalion of the 472nd

25     Brigade did not participate in activities in October 1991.  In the

Page 202

 1     evidence of the case, there are exhibits in evidence where this unit was

 2     at that time and it was in no way involved in attacks on Dubrovnik or the

 3     Old Town.  This was dealt with in detail in paragraph 13 of the Defence

 4     brief.

 5             Concerning events in November 1991, artillery support was

 6     provided by ships from the sea and other artillery units of the

 7     9th Military Naval Sector, so again it was not artillery fire opened by

 8     the 3rd Battalion of the 472nd Brigade.  This can be found in paragraphs

 9     19 through 28 of the Defence appeals brief.

10             Thus, even if we accept the position of the Trial Chamber

11     regarding the alleged order to take Srdj, the very fact or the mere fact

12     that the 3rd Battalion of the 472nd Brigade was engaged does not mean

13     that the accused had reason to know or could have known that in view of

14     their earlier conduct, there was a risk of an attack on the Old Town

15     occurring again.

16             So this automatic formula used by the Prosecutor to show that

17     notice of risk exists always whenever there is information of earlier

18     crimes is completely inconsistent with the case law of this Tribunal to

19     which the Defence refers in its Defence response brief.

20             The position of the Appeals Chamber in the Krnojelac case,

21     paragraph 171 of that judgement is completely consistent with the

22     approach demonstrated by the Trial Chamber in the Strugar case.

23             As stated earlier, the Trial Chamber evaluated a whole set of

24     circumstances in making its finding on whether the risk that existed in

25     executing the alleged order to take -- or to attack Srdj was such that

Page 203

 1     Strugar could have known or had reason to know.

 2             To conclude, the Defence believes that the Trial Chamber did not

 3     make an error in law in applying the legal standard to the evaluation of

 4     whether Strugar knew or had reason to know that his subordinates were

 5     about to commit a crime.

 6             In response to the second ground of appeal that was not mentioned

 7     by the Prosecution today, we are not going to respond except to say that

 8     our arguments are already stated in our Defence response brief.

 9     Therefore, I shall move on to the third ground of appeal of the

10     Prosecution, errors in sentencing.

11             I will now address the third ground of appeal of the Prosecution,

12     the errors in sentencing.  The Prosecutor claims in her third ground of

13     appeal that when determining a sentence for Strugar, the Trial Chamber

14     attempted to compare the situation of Jokic to that of Strugar.  The

15     Prosecutor also submits that the Trial Chamber made an erroneous

16     evaluation of the respective roles of Jokic and Strugar in what happened

17     at the time by stating that Strugar was more remote from what was going

18     on than Jokic, or more remotely responsible.  They also appealed the fact

19     that Strugar got only one year more than Jokic in terms of a sentence

20     although there are significant mitigating circumstances in Jokic's case

21     in relation to Strugar.

22             One thing that I don't think that will be challenged by anyone in

23     this courtroom that sentencing must be strictly individualised and that

24     the sentencing of Strugar was a highly sensitive procedure taking into

25     account a whole number of factors starting with the gravity of the crime

Page 204

 1     itself and Strugar's role ranging all the way to a whole number of

 2     mitigating circumstances that have been established in Strugar's case.

 3     Starting from this basic premise, the Defence wishes to point out the key

 4     differences between Jokic's case and Strugar's case and we also wish to

 5     present our understanding of the allegations in the judgement that the

 6     Prosecution addresses in terms of Strugar being more remotely responsible

 7     than Admiral Jokic and, therefore, less responsible on the whole.

 8             When determining a sentence, the key factor is the gravity of the

 9     crime and the gravity of an accused's overall culpability.

10     Culpability -- the culpability of an accused is reflected through the

11     crimes for which an accused is convicted.  The Trial Chamber found Jokic

12     guilty of six crimes charged under Article 7(1) of the Statute.  Strugar

13     was acquitted of all charges under 7(1).  When sentencing Strugar, the

14     Trial Chamber dismissed everything under Article 7(3) in relation to

15     Jokic.  Jokic was convicted in relation to six crimes and Strugar in

16     relation to two.  The severity of the sentence imposed is in direct

17     relation to the gravity of the overall criminal conduct.

18             The crimes and forms of criminal responsibility for which Jokic

19     was convicted are difficult to compare to the crimes for which Strugar

20     was convicted and this difference is reflected in the sentence eventually

21     imposed.  It is entirely erroneous of the Prosecutor to claim that Jokic

22     and Strugar were charged with the same crimes.  This is an erroneous

23     interpretation of facts as we see them.

24             In addition to that, the Trial Chamber imposed on Jokic a

25     sentence bearing in mind the scope of destruction that he was found

Page 205

 1     guilty of.  Jokic was convicted for destroying no less than 450 buildings

 2     in the Old Town of Dubrovnik.  Strugar, on the other hand, was convicted

 3     only in relation to the destruction of 52 buildings, a figure arrived at

 4     by the Trial Chamber.

 5             The Trial Chamber convicted Jokic for cruel treatment and attacks

 6     on civilians in relation to two persons who were wounded on the 6th of

 7     December, 1991.  Strugar was only convicted in relation to two persons in

 8     terms of attacks against civilians.

 9             The Trial Chamber also found an aggravating circumstance in

10     relation to Jokic, however, no aggravating circumstances were found in

11     relation to Strugar.

12             Another thing that the Defence would like to emphasise is the

13     opportunity enjoyed by the Trial Chamber in the Strugar case to directly

14     inspect the role of Jokic even to a far greater degree than the

15     Trial Chamber that eventually convicted Jokic himself.  Jokic spent over

16     a month testifying in this trial.  The Defence is convinced that the

17     disparity in sentences that now exists and which the Defence believes to

18     be inadequate and to be at Strugar's expense, and this is something that

19     we deal with in our appellate brief, is precisely a result of the

20     Chamber's assessment in the Strugar case of Jokic's role in the events

21     after the events of the way Jokic described these events and of the way

22     Jokic gave evidence before the Trial Chamber.

23             The sentence itself is a result of this overall assessment.

24             Paragraph 464 of the judgement says that Strugar was not as

25     directly responsible as Jokic.  The Prosecutor draws the impossible

Page 206

 1     inference that the Trial Chamber finds him to be less responsible because

 2     he was Jokic's superior and was above him in the actual chain of command.

 3             The Trial Chamber finds that Strugar is more remotely responsible

 4     because such are the facts of the case because that is what the evidence

 5     points to.  The Prosecutor submits that Strugar had a high level of

 6     effective control as opposed to Jokic and this fact alone justifies the

 7     disparity in sentences between the two.  The Defence is of the opposite

 8     opinion.  The level of control that Jokic had was far higher and far more

 9     comprehensive than the one that Strugar had.

10             In this context there are a number of conclusions and findings by

11     the Trial Chamber that the sentence itself is based on.

12             The Defence would like to point out a number of conclusions which

13     we believe to be consistent with the facts as they are.  This is in

14     relation to Jokic's role in these events.  These are a mere handful of

15     conclusions that I will be raising now.  Other conclusions were raised in

16     other places and there is no need to go into that again.  All the forces

17     involved in the attack were under Jokic's direct command; and this is

18     something that was determined by the Trial Chamber.

19             The Trial Chamber further established that Jokic was the logical

20     choice, if not the only choice, in terms of who would have been in charge

21     of an investigation.  The Chamber concludes that Jokic was the only

22     logical choice and this strays or deviates in no way from the doctrine

23     used by the JNA or from the principles of command that prevailed in the

24     JNA.

25             This same Jokic was quite adamant when he answered this question

Page 207

 1     that Strugar never, including the 6th of December, 1991, ordered any

 2     attack on the Old Town or Dubrovnik, generally speaking.  Jokic admitted

 3     his own guilt probably because he was directly responsible to what was

 4     going on around Dubrovnik in the Old Town since this was his own area of

 5     responsibility and his own units were in charge in the area.  Jokic used

 6     this opportunity in the absence of evidence led by the OTP and that is

 7     why his admission was a limited one.  However, during the Strugar trial

 8     itself, a lot of light was shed on Jokic's involvement in events of the

 9     6th of December, 1991, which appears to have been far more serious than

10     that defined in Jokic's admission of guilt.

11             Now, the Prosecutor drops charges that they have previously

12     levelled at Warship-Captain Zec.  They have Jokic's limited admission

13     and, while no valid evidence is being adduced, they want to make up for

14     this in terms of heightening Strugar's responsibility for what happened

15     on the 6th of December, 1991.  Their conclusion on Jokic's role is this,

16     Jokic had direct and effective control over the units.  His

17     responsibilities and duties in terms of preventing and punishing the

18     developed events that took place on the 6th of December were in Jokic's

19     hands.

20             Not only is there a discrepancy in sentences between Jokic and

21     Strugar - this should be done at Strugar's expense - the Prosecution

22     claims but the Defence claims that exactly the opposite should be the

23     case and we have detailed this request and proposal in our brief.

24             As to Strugar's statement, the first thing I would like to point

25     out is this:  The Defence submits that the issue of the importance or

Page 208

 1     weight attached by the Trial Chamber to Strugar's sentence, the weight

 2     given his statement is insignificant and this precisely is one of the

 3     arguments that the Defence wishes to adduce.

 4             We believe that the Trial Chamber did not give sufficient weight

 5     to this statement, that it did not give this statement the weight that

 6     merited.  The Defence thus remains somewhat in the dark as to why the

 7     Prosecutor would be objecting to anything in relation to Strugar's

 8     statement.  It was merely mentioned in the statement of reasons of the

 9     trial judgement but it was not afforded any major weight at all.

10             The Chamber never actually establishes whether they took the

11     statement into account as a mitigating circumstance or not and if so, to

12     what extent.  The Defence is inclined to conclude that no weight

13     whatsoever was given to the statement made by Mr. Strugar and certainly

14     not the weight that it would have deserved.

15             Should the Appeals Chamber find that there was weight that was

16     given to this statement, I would say that this must be based on the

17     positions expressed by the Appeals Chamber and as explained by the

18     Appeals Chamber today in relation to the position expressed in the

19     Vasiljevic case.

20             Therefore, nowhere in that paragraph of the Appeals Chamber do we

21     find any reference to conditionally accepting any form of admission or

22     responsibility for what is at stake in a trial as a whole.

23             The Prosecutor claims that a single year of difference between

24     the two sentences is simply inadequate.  They seek that the expressions

25     of remorse of Strugar and Jokic respectively be identified and that

Page 209

 1     Strugar's sentence be heightened.  We wish to point out that there is a

 2     whole number of factors that affect this situation:  Personal situations

 3     of the two accused, their respective health and a whole number of other

 4     circumstances that affect the obvious differences between the two cases.

 5             The Defence would particularly like to point out the following:

 6     I'm talking about the allegations of the Prosecution saying that the

 7     difference in the sentence between Jokic and Strugar must reflect Jokic's

 8     substantial cooperation.  The Defence believes that it is precisely this

 9     segment that can be best used to evaluate the difference between the

10     sentence imposed on Strugar and that imposed by the Trial Chamber on

11     Jokic.

12             The Defence submits, as I said a while ago, that the

13     Trial Chamber in the Strugar case had an excellent opportunity to see for

14     themselves what this cooperation was about, what Jokic was trying to say,

15     what Jokic was trying to conceal, what Jokic was trying to play down, and

16     where Jokic was simply not telling the truth.

17             The Trial Chamber properly assessed this cooperation on Jokic 's

18     part in their judgement.  Whenever key facts were concerned, the

19     Trial Chamber refused to lend credence to what Jokic said.  Although he

20     was committed to cooperation, the real scope and success of his

21     cooperation as part of achieving justice boils down to this:  Jokic's

22     attempt to minimise his own responsibility and to shift the blame to

23     Strugar.

24             We have addressed this issue before.  Now we shall merely quote a

25     number of findings of the Trial Chamber in relation to Jokic's evidence.

Page 210

 1             Paragraph 881 of the judgement shows us that the Trial Chamber

 2     establishes how Jokic stated following negotiations on the 5th of

 3     December, 1991, that a single issue was -- remained unresolved, the

 4     control of ships.  In paragraph 83, the Trial Chamber establishes that

 5     Jokic's version was exaggerated and was putting too generous a gloss on

 6     the state of the negotiations on the 5th of December.

 7             Paragraph 83 of the judgement states that on the 6th of December

 8     1991, questions occurred which Jokic stated had been resolved on the 5th

 9     of December.  The question of lifting Dubrovnik's blockade in exchange

10     for evacuating members of Croatia's armed forces.  This was a request

11     made on the 6th of December, 1991, which Jokic chose to remain silent

12     about and the Chamber duly noticed this and stated so.  In paragraph 82,

13     Jokic talks about what he did after meeting Croatia's ministers.  He

14     claims that he, Jokic, informed the Accused Strugar about this in

15     Trebinje.  The Chamber refuses to believe Jokic in terms of the substance

16     of what he said about Strugar.

17             Jokic claims that he was not present at the meeting in Kupari on

18     the 5th of December.  The Chamber refuses to believe him.  The question

19     remains unresolved.  The Chamber refuses to believe Jokic among other

20     things because in his interview to the Prosecutor in 2003, he explicitly

21     stated that he had been present at the meeting.  When talking about

22     Jokic's report dated the 7th of December, 1991, the Chamber deems it to

23     be a report that seeks to dilute or deceive.  Jokic, in 2004, at this

24     trial, claims that reports he'd drafted in 1991 were part of a conspiracy

25     against him.  The Chamber believes that his explanation was simply not

Page 211

 1     probable or credible.

 2             The Chamber assesses Jokic's evidence in relation to key aspects

 3     of the conviction, the roles of Strugar and Kadijevic.  The Trial Chamber

 4     is dissatisfied and refuses to accept Jokic's explanation.  The Chamber

 5     refuses to accept Jokic's evidence in his key components in terms of the

 6     key events on the morning of the of 6th of December, 1991.  Despite all

 7     these facts, despite all the facts that a Trial Chamber established, and

 8     that Jokic knew about them on the 6th of December 1991, at the time of

 9     the trial when allegedly he makes an open confession regarding his own

10     involvement in these events, his explanation is still that he did not

11     take any steps because he did not have sufficient proof.

12             The Trial Chamber finds his explanation to not be convincing.

13     Jokic enters into an agreement with the OTP but he takes up a commitment

14     to provide information that is complete and truthful.  The only chance to

15     check the truthfulness and completeness of any information provided by

16     Jokic was the Strugar trial itself.

17             By dismissing Jokic's allegations in all key aspects of the

18     explanation that he provides as to what happened on the 6th of December,

19     1991, the Trial Chamber provided an effective evaluation of the quality

20     and degree of his substantial cooperation.

21             Another thing that the Defence wishes to point out in particular

22     is the fact that the Prosecutor does not challenge Strugar's sentence,

23     the severity of Strugar's sentence from the point of view of legal

24     practice that prevails in the working international Tribunals.  They

25     never claim that the sentence was not properly determined because it was

Page 212

 1     not in keeping with the criteria and requirements adopted by the

 2     international Tribunal.

 3             The height of the sentence imposed by the Trial Chamber against

 4     Strugar can only be challenged from a point of view of legal practice but

 5     certainly not by comparing it to the sentence imposed on Jokic.  A

 6     comparison between these two sentences is simply impossible and certainly

 7     not in the way that the OTP would like it to be.  And especially if we

 8     take into account the gravity of the crimes involved and both mitigating

 9     and aggravating circumstances that were found.  Any effect of aggravating

10     or mitigating circumstances on a sentence must be individual and must

11     depend on the case in hand.  This is an approach allocated by the OTP in

12     their third ground of appeal and it seems to neglect the individual

13     circumstances regarding this particular accused.

14             The Defence asked the Trial Chamber to dismiss this third ground

15     of appeal of the OTP.  And we also ask the Trial Chamber to dismiss

16     the -- all the grounds of appeal of the OTP in their entirety.

17             What I would finally like to do is this:  I would like to briefly

18     respond to the question of the Honourable Appeals Chamber with regard to

19     the letter dated the 20th of March, 2008.  The Defence believes, as far

20     as an attack on civilian facilities is concerned, the same kind of mens

21     rea is required as that required for an attack against civilians.  The

22     Defence would like to reiterate its position that we are here talking

23     about direct intent.  Although we have perhaps not been sufficiently

24     clear about this, I would like to say that we address this issue in

25     paragraph 71 of our appellate brief.  Thank you very much, Your Honours.

Page 213

 1     This is our response to the allegations raised by the OTP.

 2                           [Appeals Chamber confers]

 3             JUDGE VAZ: [Interpretation] We would like to thank Mr. Petrovic.

 4     We shall now give the floor to Ms. Brady from the Prosecution, for the

 5     Prosecution's reply.

 6             MS. BRADY:  Thank you, Madam President and Your Honours.  We can

 7     be very brief in our reply.  I will make a few brief comments on some of

 8     the submissions made in response to our sentence appeal and Ms. Jarvis

 9     will make a few brief comments in relation to the first ground.

10             The first point I will make in relation to the sentence appeal is

11     that it is a sentence appeal brought on the basis that the sentence is

12     manifestly inadequate.  In our submission, the comparison with

13     Mr. Jokic's sentence both caused or contributed to the error and it also

14     exposes the error and it's simply a too lenient sentence.

15             The second point I'd like to make is a very simple one just to

16     correct my friend in his reference to the number of buildings that were

17     encompassed by the scope of Mr. Jokic's plea.  He referred to, I think,

18     the figure of 450 buildings.  Your Honours' attention is drawn -- I draw

19     Your Honours' attention to paragraph 27 of the Jokic sentencing -- excuse

20     me, the Jokic trial judgement, paragraph 27 in particular footnote 34

21     that refers in fact to a smaller figure of buildings damaged being 100

22     buildings, not 450.

23             The final submission I would like to make in reply is in relation

24     to the submission we've heard from Mr. Petrovic if I could summarize it

25     this way:  He made the submission that basically Jokic spent one month

Page 214

 1     testifying before the Trial Chamber and the Trial Chamber would have had

 2     a particularly box seat or a good opportunity to assess their respective

 3     roles.  And they make the submission that Jokic's involvement in the

 4     crimes on the 6th of December was more serious in the view of the

 5     Strugar Trial Chamber than defined in the Jokic's -- than defined in

 6     Jokic's admission of guilt and as found by the Jokic Trial Chamber.

 7             They also make the submission that the Trial Chamber would have

 8     had the best view, as it were, in assessing the "cooperation" by Jokic.

 9             In relation to that grouping of submissions, we say this:  It's

10     true that the Trial Chamber in Strugar may well have had the opportunity,

11     of course it had many days of hearing Mr. Jokic's testimony.  I think it

12     has to be remembered, however, that the Strugar Trial Chamber was not

13     making findings or determinations on Mr. Jokic's guilt, indeed that was

14     not the exercise; it was the trial of Mr. Strugar that was in its

15     consideration.

16             However, we agree that to an extent, to a large extent, the

17     Trial Chamber did make findings accepting or rejecting aspects of Jokic

18     and his description of his role on that day.  However, in our submission,

19     to the extent that they did that, it does, in fact, fit precisely within

20     the findings made by the Jokic Trial Chamber, the Trial Chamber's

21     findings in Jokic as affirmed by this Appeals Chamber, it fits within

22     Jokic's responsibility being one of aiding and abetting for failing to

23     prevent because from the early hours of the morning, Jokic was on notice

24     that the crimes were going on and he failed to take adequate measures,

25     reasonable and adequate measures to prevent or punish.

Page 215

 1             So to the extent that my learned friend had alleged a difference,

 2     we say that there is none between these perspectives as it were of

 3     Jokic's criminality.  There's no difference between Strugar Trial Chamber

 4     and how the Jokic Trial Chamber and the Appeals Chamber in that case saw

 5     Jokic.  In any respect, in any event, if -- because the Trial Chamber was

 6     comparing the sentence, was looking at Jokic's sentence, seven years, as

 7     the mark, as a reference point, as a comparative reference point, to the

 8     extent there was some difference in how they would have seen his role,

 9     then it really was bound to take the view of Jokic's responsibility as

10     found by the Jokic Sentencing Chamber and as affirmed now by the

11     Appeals Chamber.  Because otherwise, there would be no point in the

12     exercise of the comparison.

13             The comparison of seven years only makes sense, the seven-year

14     figure has to be seen as being a figure which was a sentence appropriate

15     for certain criminality and that certain criminality as defined by the

16     Jokic Trial Chamber and affirmed by the Appeals Chamber is what is the --

17     should be governing in this situation and not necessarily the

18     Trial Chamber's view of Jokic.  But in any event, we say that their views

19     are consistent and the Trial Chamber was within the -- was fully in

20     conformity with the views of the Jokic Sentencing Chamber.

21             That's all I wish to say on points on sentencing so I'll hand

22     over now to Ms. Jarvis who will make a few remarks on the first ground.

23             Thank you.

24             MS. JARVIS:  Your Honours, I have just three points to make in

25     reply in relation to the Prosecution's first ground of appeal.  The first

Page 216

 1     one concerns the argument the Defence have raised that the Prosecution's

 2     first ground of appeal is entirely dependent on the Chamber's finding

 3     that Strugar issued the order to attack Srdj.

 4             Your Honours, I would like to clarify that our position is that

 5     the Prosecution's first ground of appeal is not so dependent on that

 6     particular legal finding.  Certainly, we have argued in our brief and

 7     I've continued that line of argument here before you today that the

 8     particular context of Strugar's order to attack Srdj on the 5th of

 9     December certainly heightened the risk that the shelling of the Old Town

10     of Dubrovnik would occur; but, Your Honours, even if you remove that

11     contextual factor from the mix, we say there are still sufficiently

12     compelling factors to trigger Strugar's duty as a commander to prevent

13     crimes at the earlier time.

14             Your Honours, in particular, when I started my submissions, I

15     gave you a list of some 10 factors, contextual factors which together

16     were relevant in assessing the real and obvious risk known to Strugar.

17             Of these, there were three that were relevant to the order to

18     attack Srdj and these were, in particular, the fact that, for example,

19     the order to attack Srdj inherently in it was the prospect of wider

20     shelling in Dubrovnik, that kind of thing.

21             But even if you remove this from the evidentiary mix, what you're

22     left with is a situation where, at least -- at the very least, Strugar

23     knew that there had been a repeated pattern of shelling of the Old Town

24     of Dubrovnik in October and November, that nothing had been done to

25     punish these crimes, that it was in keeping with the general state of

Page 217

 1     lack of discipline within Strugar's troops and of unauthorised fire and

 2     the like, and that even the existence of previous orders prohibiting

 3     attacks on cultural property and the Old Town, in particular in the case

 4     of the November shelling, were totally ineffective.

 5             We say that in that kind of a scenario, there is still a

 6     sufficient risk of the repetition of future crimes to require a superior

 7     to take action.  We draw support for that position from the case law I've

 8     mentioned, for example, the Hadzihasanovic Appeals Chamber which

 9     yesterday confirmed that in particular, the failure to punish past crimes

10     is very relevant to the risk assessment because of the encouraging

11     effect, the impunity, the impression of impunity that it generates

12     amongst forces.

13             I would also mention to Your Honours the Naletelic Appeal

14     Judgement, and this is cited in our supplementary filing last year, where

15     the Appeals Chamber found contrary to the ground of appeal raised in that

16     case that Naletelic's personal observation of even one instance of his

17     subordinates looting was sufficient to put him on notice and obligate him

18     to take action to punish the perpetrators and prevent further plunder.

19     That's at paragraph 386 and 387.

20             So although we acknowledge certainly that is it is a case-by-case

21     assessment, we say that in the circumstances of this case, even absent

22     the context of the order to attack Srdj, there is sufficiently alarming

23     information to have required Strugar to prevent those crimes.

24             My second point concerns the argument the Defence have raised

25     that the 3rd Battalion of the 472nd Brigade was not involved in the

Page 218

 1     November shelling and therefore, Strugar couldn't have been expected to

 2     have predicted that they would engage in the December shelling.

 3             Your Honours, the Trial Chamber's finding in this respect is set

 4     out in a number of different places of the judgement in similar terms,

 5     but what I will refer you to for present purposes is footnote 1222 of the

 6     judgement where the Trial Chamber bases its finding that Strugar knew,

 7     based on prior criminal conduct of the 3rd Battalion of the repetition of

 8     future crimes.

 9             The Trial Chamber relies on the evidence that Admiral Jokic gave

10     at trial about the fact that he conducted an investigation into the

11     November shelling of the Old Town which led him to specifically conclude

12     that this brigade was in a position to have carried out the shelling and

13     that he subsequently confirmed that Captain Kovacevic, the commander, was

14     the primarily responsible person.

15             He then testified that he had followed up with General Strugar

16     requesting that various commanders of the 472nd Brigade should be

17     removed.

18             Your Honours, essentially what the Defence challenge is doing now

19     is suggesting that you should take a different view of the evidence to

20     that that the Trial Chamber, based on its careful assessment, came to at

21     the conclusion of the case.

22             He hasn't shown that the Trial Chamber's finding was unreasonable

23     and to the contrary, the finding is actually very much supported by the

24     evidence about how the attack in November unfolded.

25             Your Honours, in particular, what I'd refer you to is the trial

Page 219

 1     judgement at paragraph 64 which talks about the 12 November shelling of

 2     the Old Town by the so-called Maljutka rockets, the wire-guided missiles.

 3     And the Trial Chamber talks about over evidence before it in particular

 4     from Captain Nesic who was part of the 3rd Battalion of the 472nd Brigade

 5     who was stationed at Zarkovica during the November attack and who

 6     testified that the Old Town was shelled using these wire-guided missiles.

 7     So this is entirely consistent with the conclusions that Jokic drew in

 8     his investigation about the involvement.

 9             The Defence argument that the 3rd Battalion could not have been

10     involved in the shelling is based on a wrong premise.  They claim by

11     reference to certain orders in relation to the November attack that the

12     3rd Battalion of the 472nd Brigade was being supported by other artillery

13     and wasn't tasked with any artillery assignments itself and so therefore,

14     it could not have been responsible for the shelling.

15             Your Honours, as the evidence at trial established, for example,

16     in the trial judgement at paragraph 127, the 3rd Battalion had its own

17     artillery and as Jokic testified as well at trial, it was entirely within

18     keeping with military doctrine for these subordinate brigades to use

19     their own artillery without being specifically directed to do that by a

20     higher force.

21             So the fact that they were being supported by artillery doesn't

22     in any way undermine the conclusion that they could have used their own

23     artillery on the 12th of November to shell the Old Town.  And as I've

24     said, that's really consistent with the evidence of the way the November

25     attack unfolded.

Page 220

 1             Your Honours, my final point concerns the Defence argument that

 2     the Prosecution is really unhappy with the Trial Chamber's risk

 3     assessment.  And I want to clarify our position on that because that

 4     really is the essence of it.  It's not that we are unhappy with the

 5     Trial Chamber's risk assessment.  To the contrary, what we are unhappy

 6     about is that having assessed that the risk was a real and obvious one of

 7     a future repetition of crimes, that the Trial Chamber then attributed no

 8     legal duty to Strugar to do anything about it.

 9             So at its core, our appeal accepts the Chamber's own finding on

10     the level of risk involved but seeks to argue that different legal

11     consequences flow from that assessment.

12             Your Honours, if I can conclude by asking you to think about the

13     matter in these terms:  What we're talking about here is a question of

14     allocation of risk.  Who should bear this real and obvious risk of future

15     crimes?

16             The Trial Chamber's approach was to say that the civilian

17     population of Dubrovnik of the Old Town of Dubrovnik should bear that

18     risk.  That sitting their defenceless within the walls of the Old Town

19     with all the might of the JNA artillery poised above it, those civilians

20     who were in no position to control the risk had to bear the risk that

21     those crimes would subsequently recur.

22             We say that's contrary to the notion of superior responsibility

23     and the doctrine of responsible command, the fundamental duty of a

24     commander to control his troops.

25             We say that the risk should lay with General Strugar who was the

Page 221

 1     commander, the senior commander of the operative forces in the area who

 2     had every means at his disposal to control that risk, ensure that the

 3     shelling of the Old Town never started but who simply failed to act.

 4             Thank you.

 5             JUDGE VAZ: [Interpretation] Judge Kwon has a question.

 6             JUDGE KWON:  Ms. Jarvis, I just noted you submitted that -- at

 7     page 140, line 15 that your appeal accepts the Chamber's --

 8     Trial Chamber's own finding on the level of risk involved.  How would you

 9     read the paragraph 418, in the middle of that paragraph, the sentence to

10     which footnote 1204 is attached?  "His knowledge in the Chamber's finding

11     was that only a limited number of such Croatian defensive positions could

12     exist and that as the attack progressed, these positions could be

13     subjected to controlled and limited JNA shelling targeted on these

14     positions or on what were believed by his forces to such positions."  "To

15     be such positions."

16             MS. JARVIS:  Your Honour, we say this doesn't change the nature

17     of our complaint in this case, that what the Trial Chamber was doing here

18     was perhaps harking back to a finding it had made earlier about whether

19     Strugar's duty -- Strugar's liability could be characterised as ordering

20     based on his order to attack Srdj and whether that attached with it the

21     awareness of a substantial likelihood that in the course of the attack,

22     the Old Town would be unlawfully shelled.

23             One of the reasons that the Chamber gave for ruling out a

24     substantial likelihood was precisely because it considered that Strugar

25     had ordered a more confined and controlled attack.

Page 222

 1             But Your Honours, that doesn't undermine the other specific

 2     findings in the judgement in paragraphs 416, 417 and then again at

 3     paragraph 420 where the Chamber notwithstanding that analysis finds that

 4     he knew of a real risk that in the heat of the attack on Srdj, the JNA

 5     artillery would repeat its recent and already repeated conduct of the

 6     unlawful shelling on Dubrovnik.

 7             The problem is that at that juncture, they find that's not a

 8     sufficiently high level of risk and that's the point of our appeal is we

 9     say that must be -- that a superior in a position where he knows of not

10     just a general possibility of crimes, not just a slight or remote risk,

11     but a real risk, a present -- a recent -- based on recent past conduct

12     and all the other factors, that a commander in that situation should be

13     required to act precisely because he is the one who is in control of the

14     lethal force that is putting at risk civilians and civilian objects in

15     this case.

16             JUDGE KWON:  Thank you.

17             JUDGE VAZ: [Interpretation] Thank you, Ms. Jarvis.  I believe

18     that Judge Shahabuddeen has a question.

19             JUDGE SHAHABUDDEEN:  Just a short question.  I only ask this

20     question by way of seeking information.  As to what is the reference in

21     the trial judgement to the proposition that the Trial Chamber found that

22     it was for the civilians in Dubrovnik to bear the risk, unless I

23     misunderstood you?

24             MS. JARVIS:  Yes, Your Honour, I'm not suggesting there was such

25     a finding in the judgement, not an express reference to that.  My point

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 1     was that that was the effect of what the Trial Chamber had done in this

 2     case.  So I apologise if that wasn't clear from my earlier submission.

 3             JUDGE SHAHABUDDEEN:  Thank you.

 4             JUDGE VAZ: [Interpretation] Very well.  Thank you very much.  I

 5     believe that there aren't any more questions.

 6             I'm now going to turn to Mr. Strugar and ask him whether he wants

 7     to make a statement.  You have the floor.

 8                           [The appellant stands up]

 9             THE APPELLANT: [Interpretation] Yes, yes, I would like to address

10     the Chamber.

11             Your Honours, I am grateful to the Chamber for having given me

12     this opportunity to address the Court directly during this

13     Appeals Hearing.  It is the end of the day almost, and my fate is being

14     resolved before this International Tribunal.  As I thought about what it

15     was that I could state on this occasion, bearing in mind the appeal filed

16     and the oral arguments presented by my lawyers, I decided to highlight a

17     few questions only.

18             When I was informed by the government of Montenegro that

19     The Hague Tribunal had provided information to the effect that I had been

20     charged with crimes on account of the crimes that were committed in

21     Dubrovnik, I immediately responded that I would voluntarily appear before

22     the Court, as soon as possible at that.

23             I made that decision although at that time, in October 2001, I

24     was in hospital because I had a kidney problem and it was the fifth time

25     I underwent surgery.

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 1             Nevertheless, I left the hospital and I went to The Hague on the

 2     21st of October, 2001.  Seriously ill, not having healed properly, I

 3     arrived in The Hague where the deterioration of my health continued.

 4             I met with the understanding of the Trial Chamber that made it

 5     possible for me to be provisionally released in order to continue my

 6     medical treatment in Podgorica.  I was tried here for crimes related to

 7     Dubrovnik in 1991.

 8             I support everything that was written in my appeal regarding the

 9     judgement and everything that my lawyers said before you here today.  I

10     am expressing myself in the imperative.  I did not order the attack on

11     Srdj and I think that there is ample evidence showing that and that you

12     will agree with this statement.

13             I never said to Colm Doyle that I had ordered fire to be opened

14     on Dubrovnik.

15             Unfortunately, today we know that the main protagonist of these

16     events was a sick man, retired Major Kovacevic.  On the basis of a

17     decision made by this Court was sent from the detention unit here to

18     undergo medical treatment at the Military Medical Academy in Belgrade.

19     This year, he was declared permanently unfit to stand trial and was

20     therefore released from custody.

21             I know of the suffering of people in Dubrovnik and I deeply

22     regret that.  I feel sorry for every person who was a victim in

23     Dubrovnik.  I feel sorry about all the damage caused to the ancient city.

24             I'm also aware of the suffering of the families of my soldiers

25     who had lost their lives.  I, as a soldier, know what war is and I do not

Page 225

 1     want that ever to be repeated again.

 2             Your Honours, please understand my suffering as well.  What hurts

 3     me the most is that I have been accused of having issued an order that I

 4     never issued, in actual fact.  I kindly ask the Chamber to understand

 5     that in a few months, I will turn 75, that I'm an old and sick man.  I

 6     had kidney surgery five times.  I have prostate problems, I also have an

 7     artificial hip.  The doctors say that I should get another artificial

 8     hip.  They say that I should have surgery on both knees.  My wife is very

 9     seriously ill and therefore, she hasn't visited me in years.

10             When pointing this out, I am not asking for you to feel sorry for

11     me.  I just wish that you understand the position that I am in.

12             Your Honours, I am sure that you will carefully analyse

13     everything that was said here today and that you will reach a just and

14     fair decision.  Thank you.

15                           [The appellant sits down]

16             JUDGE VAZ: [Interpretation] Thank you, Mr. Strugar.  Please be

17     seated.

18             I now wish to thank the Defence counsel and the Prosecution, the

19     registry, the legal officers, the court reporters for their precious

20     help, and the interpreters who made it possible for us to have these

21     proceedings.

22             We are now going to deliberate.  You will be informed of the date

23     of the Appeal Judgement in due time.  The hearing stands adjourned.

24                           --- Whereupon the hearing adjourned at 5.55 p.m.