Hospitals & Asylums
The Hague, 31 January 2005
CT/P.I.S./932e
JUDGEMENT IN THE CASE THE PROSECUTOR v. PAVLE STRUGAR
PAVLE
STRUGAR SENTENCED TO EIGHT YEARS’ IMPRISONMENT
Please find below the summary of
the Judgement delivered by Trial Chamber II, composed of Judge Parker
(presiding), Judge Thelin, and Judge Van Den Wyngaert, as read out by the
Presiding Judge.
SUMMARY
The Chamber is sitting today to
deliver the Judgement in the trial of Pavle Strugar.
For the purposes of this hearing,
the Chamber will summarise briefly its findings, emphasising that this is a summary
only, and that the only authoritative account of the Trial Chamber’s findings,
and of its reasons for those findings, is to be found in the written Judgement,
copies of which will be made available to the parties and to the public at the
conclusion of this hearing.
Before turning to the merits, the
Chamber wishes to thank the translators and interpreters, the Court Management
Section and the Victim and Witnesses Section, as well as Counsel and the
Chamber’s legal support team for having facilitated the conduct of this trial.
The Accused, Pavle Strugar, a
retired Lieutenant-General of the then Yugoslav Peoples’ Army (JNA), is charged
in the Indictment with crimes allegedly committed on 6
December 1991, in the course of a military campaign of the JNA in the area
of Dubrovnik in Croatia in October, November and December of 1991. It is
alleged that in the course of unlawful artillery shelling by the JNA on the
historic Old Town of Dubrovnik on 6 December 1991, two people were killed,
two were seriously wounded and many buildings of historic and cultural
significance in the Old Town were damaged. These allegations support the six
charges in the Indictment of violations of the laws or customs of war under
Article 3 of the Statute of the Tribunal, namely murder, cruel treatment,
attacks on civilians, devastation not justified by military necessity, attacks
on civilian objects, and destruction of institutions dedicated to, inter
alia, religion, and the arts and sciences.
It is alleged that the Accused is
guilty of each of these six counts on two distinct bases. First, pursuant to
Article 7(1) of the Statute, that he personally ordered the shelling of
the Old Town, and also that he personally aided and abetted the shelling.
Secondly, as a superior responsible for the criminal conduct of the forces
under his command pursuant to Article 7(3) of the Statute. The Accused’s
liability is alleged to arise out of the position he then held as commander of
the Second Operational Group (2 OG).
In September 1991, hostilities
between the JNA and Croatian forces began in the south coastal area of Croatia.
A blockade of Dubrovnik was established from 1 October 1991. It continued into
1992. The JNA forces under the Accused’s command launched combat operations to
advance closer on the city of Dubrovnik in particular from 23 to 26 October
1991 and from 9 to 13 November 1991. Both times, the wider city of Dubrovnik in
general, and its historic Old Town in particular, were shelled. By 13 November
1991, the JNA effectively held all the territory around the wider city of
Dubrovnik, except for Mount Sr|, the dominant topographical feature of Dubrovnik
immediately above the Old Town, where there is a fortress from Napoleonic
times.
In early December 1991,
negotiations were held in an attempt to resolve the problem of the blockade of
Dubrovnik. Dubrovnik was but one of several issues, arising out of the conflict
in the then SFRY, with which the highest Croatian and Serbian levels were
occupied at the time. A Croatian ministerial delegation, led by Minister
Rudolf, and the JNA, represented by Admiral Joki}, met in Cavtat on 5 December
1991. They were to continue on 6 December 1991.
The events directly relevant to 6
December 1991 are the subject of a great deal of evidence. Much of it is
inconsistent or conflicting. It has been necessary for the Chamber to determine
where the truth lies. Our reasons are set out in detail in the written
Judgement. The summary of material events that follows reflects our findings as
to what, in truth, did occur.
Well before sunrise, at around
0550 hours on the morning of 6 December 1991, residents of the Old Town of
Dubrovnik awoke to the sound of explosions. An artillery attack had commenced.
While initially, the firing was mainly concentrated on the area around Sr|,
some shelling occurred on residential areas of Dubrovnik, including the Old
Town and the port of the Old Town, virtually from the outset of the attack.
However, the focus of the attack came to shift from Sr| to the wider city of
Dubrovnik, including the Old Town. The most intense shelling occurred in the
morning, between 0900-0930 hours and about 1100 hours. At about
1115 hours, a considerable drop in the frequency of the shelling occurred.
This lull was not long-lived however, and shelling picked up again to continue
though more sporadically. Shelling decreased noticeably a little after 1500
hours and had substantially ceased by a little after 1630 hours. The shelling
of Dubrovnik, including the Old Town, had continued for over 10 and a half
hours on 6 December 1991.
On 6 December 1991, the JNA
attempted to capture Sr|. The attempt commenced between 0500 and 0600 hours on
6 December 1991, under cover of darkness. It was undertaken by two small
infantry units of the 3/472 mtbr of the JNA. Each had close tank support.
Less than 40 soldiers made the attack. Even so the defending Croatian forces on
Sr| were outnumbered. The JNA infantry and artillery actions that day were
overseen and coordinated by the commander of the 3/472 mtbr Captain Kova~evic,
who was located at his observation post on @arkovica, a small plateau about two
kilometres to the southeast of the Old Town, with clear views to the northwest
of Dubrovnik, especially the Old Town, and Sr|.
A little before 0600 hours, more
than half an hour before sunrise, JNA units commenced the mortar and other
artillery barrage. At first, the principal target was Sr|. As the two attacking
units approached Sr|, they came under defensive fire from Sr|. In time Croatian
82mm mortar and machine-gun fire was commenced from the wider city of
Dubrovnik, but not from the Old Town, against the attacking troops. As the JNA
troops attacking Sr| came under increasing fire, some JNA artillery fire was
targeted at Croatian firing positions in the wider city of Dubrovnik in an
attempt to neutralise them.
By about 0800 hours, the JNA
attacking forces had approached sufficiently close to Sr| to be themselves
threatened by the JNA artillery barrage on Sr|. The barrage of Sr| was called
off so that the JNA troops could continue to advance. They were, however, still
under mortar attack from Croatian positions in the wider city of Dubrovnik as
well as defensive fire from Sr|. While there had been some shelling by the JNA
of Dubrovnik, including the Old Town, virtually from the commencement of fire
by JNA batteries, from the time of the cessation of the JNA artillery barrage
on Sr|, at about 0800 hours, the full force of the active JNA mortars and other
artillery, including Maljutka rockets or missiles, appears to have been
directed at Dubrovnik, including the Old Town. There was no adequate control
and direction of the fire of the JNA mortars and other weapons. Fire was not
confined to Croatian military targets. Instead, they fired extensively,
deliberately and indiscriminately at Dubrovnik, including the Old Town. This
continued for many hours, as has been indicated.
The infantry attack on Sr| was
the scene of very intense and desperate close combat by both Croatian and JNA
forces. There were fatalities and other casualties on both sides. The Croatian
defenders withdrew into positions underground in the stone fortress on Sr| and
called in Croatian mortar and other fire on the attacking JNA forces
surrounding the fortress. Attempts to overcome the Croatian defenders, or to
force them to capitulate, were made over many hours, but without success.
Eventually, after 1400 hours, the exhausted attacking JNA forces called
off the attempt to capture Sr| and withdrew with tank support under cover of
another JNA mortar barrage on Sr|. The withdrawal was completed by a little
after 1500 hours. The attempt to capture Sr| had failed. The JNA artillery
attack on Dubrovnik, including the Old Town, had continued throughout the
attempt to capture Sr|.
It was a position advanced by the
Defence at trial, as indeed it was an explanation of the JNA attack on Sr| and
the artillery attack on the Old town offered by the JNA in December 1991, that
the attack was undertaken solely on the decision of the Captain Kova~evi} of
the 3/472 mtbr, a decision he made impulsively and contrary to superior orders,
early in the morning of 6 December 1991. The reason suggested for this remarkable
conduct was that during the night of 5 and 6 December, Croatian forces at Sr|
had offered provocations by firing at his troops, killing one. He lost his
self-control and ordered the attack in an emotional response to the conduct of
the Croatian forces.
It is the finding of the Chamber
that this is entirely false. Late in the afternoon on 5 December
1991, a meeting was held at the forward command post of the 9 VPS
at Kupari. The 3/472 mtbr was then under the command of the 9 VPS
commanded by Admiral Joki}. Senior 9 VPS staff officers,
including the Chief of Staff Warship-Captain Zec, the commander of the
3/472 mtbr Captain Kova~evi}, and the commanders of other 9 VPS
units, were present at the meeting. At the meeting a battle plan to take Sr|
the following morning and before 1200 hours was determined. Sr| was the
dominant feature and the one remaining position held by Croatian forces on the
heights above Dubrovnik. The plan involved the use of mortars and other
artillery against military targets, including those in the wider Dubrovnik, as
required, to support the assault on Sr|. It involved 9 VPS units other
than the 3/472 mtbr. The evidence establishes, in the Chamber’s finding,
that the attack on Sr| was entirely preplanned and coordinated on 5 December
1991 by 9 VPS staff officers, and was not initiated by Captain Kova~evi} alone,
in the early morning of 6 December 1991, in response to provocations that night
by the Croatian forces.
On 6 December 1991, repeated
protests against the JNA artillery attack on Dubrovnik, especially the Old
Town, by Minister Rudolf leading the Croatian ministerial delegation, the
European Community Monitoring Mission (ECMM) and the civil authorities of
Dubrovnik, were made variously to the 9 VPS, to the Accused, and in Belgrade to
the Federal Secretary of Defence General Kadijevi}. These were entirely
ineffective to stop the artillery attack.
In the Chambers finding, however,
a protest by the ECMM to General Kadijevi} led him to telephone the Accused
between 0600 hours and 0700 hours. The Accused in turn, at around
0700 hours, telephoned Admiral Joki}. These events, and what passed
between the Accused and Admiral Joki} at that time and later in the day, are
the subject of much controversy in the evidence. It is unnecessary for present
purposes to attempt to summarise all the Chamber’s consideration of these
matters and its reasons for the conclusions it has reached. The Chamber would
particularly note its finding, however, that at no time during the morning of 6
December 1991 did either the Accused or Admiral Joki} order that the JNA attack
to capture Sr| should cease. There were discussions between Admiral Joki} and
Minister Rudolf during the morning in which they agreed on a cease-fire to take
effect at 1115 hours. Following this, the Accused did order a cease-fire. This
order only went to some JNA units. In particular there was no order given to
the infantry units trying to capture Sr| to cease their attack. As was
inevitable, because the JNA attack on Sr| continued and not all JNA artillery
units ceased fire, the cease-fire was ineffective and both sides continued
firing. No further steps were taken by either the Accused or Admiral Joki} to
stop the artillery attack on the Old Town, or any other aspect of the JNA
assault.
Instead, the Accused and Admiral
Joki} flew together to Belgrade in the afternoon. General Kadijevi} had ordered
them to do so that morning, when the ECMM protest reached him. The three met in
the afternoon, the Accused and Admiral Joki} returning to their commands at
about 1730 hours. It is apparent that the JNA was in what is colloquially
described as "damage control mode" at that stage in respect of the
attack Dubrovnik, especially the Old Town. The attack had provoked virtually
immediate and strong adverse international reaction. Admiral Joki} was in
immediate command of all the JNA forces involved in the attack that day. He was
also in communication with the Croatian and international representatives. He
was assigned the task of trying to "repair the damage and sort things
out". He proposed an enquiry, which was an obvious step in deflecting
adverse international opinion. What followed, in the finding of the Chamber,
evidences the tenor and the effect of the understanding or instructions Admiral
Joki} took from the Belgrade meeting. The next morning, he signed a ceasefire
agreement. His immediate actions were to give unqualified assurances, citing
the authority of General Kadijevi}, of a thorough investigation and action to
deal with the perpetrators, to Minister Rudolf, the Dubrovnik Crisis Committee
and the ECMM. He quickly conducted what the Chamber has found was a sham
enquiry. He reported briefly to the Federal Secretariat on the steps he took
and generally on the action of 6 December 1991, in a way which was quite out of
keeping with the facts as revealed by the evidence, so as to put the conduct of
the JNA forces in a more favourable light. The next day, a
"commission" of three 9 VPS officers visited the Old Town to
report on the damage. Admiral Joki} endorsed their report, which sought to
minimise the nature and extent of the damage and deflect responsibility for its
cause from the JNA. On the evening of 6 December 1991, he removed one
acting battalion commander, Lieutenant-Colonel Jovanovi} of the 3/5 mtbr, from
his post. Strangely, Lieutenant-Colonel Jovanovi} had only held this acting
post for one day. He was returned to his normal duties without any adverse
disciplinary or other action. The 3/5 mtbr had no responsibility for the
shelling of the Old Town as the Old Town was beyond the range of its mortars.
He took no other disciplinary or administrative action to better determine the
truth of what had occurred, or to deal with those responsible. The Chamber
notes that no further investigative or disciplinary action was taken by his
immediate superior, the Accused, or in turn the Accused’s superior, General
Kadijevi}.
Numerous propositions were
advanced as to why the Old Town came to be shelled on 6 December 1991. In
particular, in the course of the Defence case the view was pursued that in
truth there had been little or no damage to the Old Town. The Chamber, however,
is satisfied by the evidence that there was extensive damage and that it
extended over substantial areas of the Old Town. One other position for which
the Defence contended is that any damage, alternatively some of the damage, to
the Old Town was in fact deliberately or accidentally inflicted by the Croatian
defending forces or other Croatian interests. However, there is a clear and strong
body of evidence, indeed an overwhelming body, that the damage inflicted in and
to the Old Town of Dubrovnik on 6 December 1991 was caused by the JNA
shelling. Yet a further Defence submission, and one which is somewhat
inconsistent with the submissions that have just been considered, is that any
damage to the Old Town on 6 December 1991 was a regrettable but
unavoidable consequence of artillery fire of the JNA targeted at Croatian
military positions in and, in the immediate vicinity of, the Old Town. In part,
the JNA forces did target Croatian firing and other military positions, actual
or believed, in the wider Dubrovnik, but none of them were in the Old Town.
Despite some contrary evidence, these Croatian positions were all too distant
from the Old Town to put it in danger of unintended incidental fall of JNA
shells targeted at those Croatian positions. It is the finding of the Chamber
that the cause of the established damage to the Old Town was extensive,
deliberate and indiscriminate shelling of the Old Town over some 10 ½ hours on
6 December 1991, not only by JNA mortars but also by other JNA weapons
such as ZIS and recoilless cannons and Maljutka rockets.
Turning to the specific charges,
the Indictment alleges the murder of two civilians in the course of the attack.
In this respect, the Chamber observes that where a town occupied by a civilian
population is subjected to a deliberate artillery attack, which results in
civilian deaths, these deaths may constitute murder when the perpetrators had
knowledge of the probability that the attack would cause deaths. The Chamber is
satisfied that the fact, and the cause, of death are established for both
civilians. The actual JNA perpetrators deliberately targeted the Old Town
knowing it had a civilian population. The elements of murder have been
established against those perpetrators.
The Indictment further alleges an
offence of cruel treatment against two victims. Similar allegations
relating to a third victim were dismissed in the Chamber’s Decision on
Rule 98 bis. The elements of the crime of cruel treatment have
been established against the actual JNA perpetrators.
Offences of unlawful attacks on
civilians, and on civilian objects, are also charged. On 6 December 1991,
the evidence is unequivocal that the Old Town was, as it still is, a living
town. Though a protected World Heritage site, it had a substantial resident
population of between 7,000 and 8,000. As stated earlier, the Chamber has found
that the Old Town was extensively targeted by JNA artillery and other weapons
on 6 December 1991 and that no military firing points or other objectives,
real or believed, in the Old Town were targeted by the JNA. In the Chamber’s
finding, the intent of the perpetrators was to target the civilian population
and civilian objects in the Old Town. The elements of these two crimes have
therefore been established against the actual JNA perpetrators.
With respect to the crime of
devastation not justified by military necessity and the crime of destruction of
cultural property, the allegation against the Accused, following the Rule 98bis
Decision, was that damage or destruction was sustained by 116 specified
buildings and structures in the course of the 6 December shelling of the Old
Town of Dubrovnik. The Chamber finds that of these 116 buildings and
structures, it has been established that 52 were damaged, six of them being
destroyed, during the 6 December shelling of the Old Town by the JNA. The
nature and extent of the damage to these buildings varied. Moreover, while
several of the 52 buildings and structures had sustained some degree of damage
from earlier shelling in October and November, the Chamber is satisfied that
the previously damaged buildings sustained further and significant damage during
the 6 December attack. In relation to the charge of devastation, the Chamber
finds that the Old Town sustained damage on a large scale on 6 December
1991. In relation to the charge of destruction of cultural property, the Old
Town of Dubrovnik in its entirety was entered onto the World Heritage List in
1979, so that every building of the Old Town, including its walls, are properly
characterised as cultural property. It has also been established that there
were no military objectives in the immediate vicinity of the 52 buildings and
structures destroyed or damaged on 6 December 1991, or in the Old Town, or
in its immediate vicinity, so that the destruction or damage of property in the
Old Town on 6 December 1991 was not justified by military necessity. The
elements of these two crimes have been established against the actual JNA
perpetrators.
The Chamber now turns to the
crucial question whether the Accused is proved to be personally criminally
responsible for the artillery attack on the Old Town, OR indirectly criminally
responsible as commander of the 2 OG for the conduct of the JNA troops who
were the actual perpetrators of these offences. It is established that all the
JNA forces involved in the military action at Dubrovnik on 6 December 1991
were components of, or subjugated to, the 9 VPS which was commanded by Admiral
Joki} on 6 December 1991. Further, the 9 VPS was in turn under the
operational command of the 2 OG, which was commanded by the Accused. As their
superior commander, the Accused had both legal and effective control of the JNA
forces who conducted the military action at Dubrovnik, including the shelling
of the Old Town.
The evidence does not establish,
however, that the Accused ordered the shelling of the Old Town which occurred
on 6 December 1991. What is established is that the Accused did order the
attempt to capture Sr| which was undertaken on 6 December 1991. In
the written Judgement the Chamber has dealt with the evidence which establishes
this, and also with some evidence which sought to suggest that this was not so.
In particular the Chamber accepts the evidence of Colm Doyle, then in charge of
the ECMM monitors in Bosnia and Herzegovina, of a conversation he had with the
Accused on 6 December 1991, shortly after midday, the effect of which, in
the finding of the Chamber, was an admission by the Accused that he had ordered
the attack on Sr|. The actual words of the Accused could be understood to
suggest he ordered the shelling of the Old Town, but for reasons set out in the
written Judgement that is not the finding of the Chamber. The Accused, however,
left the detailed planning of the attack on Sr| to the 9 VPS whose forces
surrounded Dubrovnik, and this is what occurred late on 5 December 1991.
While the circumstances known to
the Accused, at the time of his order to attack Sr|, can only have alerted him
to the possibility that, as had occurred in October and November, his forces
would once again ignore orders and resort to deliberate and indiscriminate
shelling, especially of the Old Town, it has not been established that it was
known to the Accused that at the time of his order, there was a substantial
likelihood of this occurring. It has not been proved therefore that the Accused
is guilty of ordering the attack on the Old Town.
The Chamber finds that it has not
been proved that the Accused aided and abetted the unlawful shelling of the Old
Town. In particular, while the Accused did not take all necessary and
reasonable measures to ensure that the shelling ceased, he did issue a cease-fire
order to take effect at 1115 hours, although this order was not implemented
effectively. Further, the necessary mental element for aiding and abetting is
not established. It has not been proved, therefore, that the Accused is
personally criminally liable for the attack pursuant to Article 7(1) of the
Statute.
We now deal with the Accused’s
responsibility as commander of the 2 OG pursuant to Article 7(3).
On 6 December 1991, the Accused had the legal authority and the
material ability to issue orders to the 3/472 mtbr, and all the other JNA
forces involved in the attack on Sr| and the shelling of Dubrovnik, including
the Old Town, to ensure that the Old Town was not shelled and that an existing
attack ceased. In the Chamber’s finding, from about 0700 hours
on 6 December 1991, the Accused was on notice, because of events
detailed in the written Judgement, of the clear and strong risk that already
his JNA artillery was repeating its previous conduct and shelling the Old Town.
By that time, the risk that this was occurring was so real, and the
implications were so serious, that the Accused should have seen the urgent need
to determine whether the JNA artillery was in fact shelling the Old Town,
without justification, and if so to ensure the attack on the Old Town was
stopped. He did not do so. In particular, the finding of the Chamber is that
the Accused did not give an order to Admiral Joki} at about 0700 hours on
6 December 1991 to stop the attack on Sr|. The Chamber has already
indicated that an order to cease fire with effect from 1115 hours was given to
some JNA artillery units, but not all, and the troops trying to capture Sr|
were not ordered to cease their attack at 1115 hours.
The evidence further establishes,
in the Chamber’s finding, and despite strong submissions to the contrary, that
after the attack, the Accused at all times had full authority to act himself to
investigate and take disciplinary or other adverse action against the
perpetrators of the attack on the Old Town, and also to require Admiral Joki}
to take more effective measures. Despite this the Accused chose to take no
action of any type.
The Chamber is therefore
satisfied that the elements required for establishing the Accused’s
responsibility under Article 7(3) of the Statute, as the superior commander of
the JNA forces who perpetrated the unlawful shelling of the Old Town
on 6 December 1991, have been proved. He failed to act to stop
the attack on 6 December 1991 when he could and should have done so, and afterwards
he failed to ensure the perpetrators were punished.
In the present case, the elements
of each of the six counts in the Indictment have been established. The Chamber
observes, however, that the essential criminal conduct was an artillery attack
against the Old Town. In the course of that attack civilians were killed and
injured, and protected buildings were damaged and destroyed. It is the view of
the Chamber, that the essential criminal conduct is directly and
comprehensively reflected in Counts 3 and 6, and that the interests of justice
and of sentencing are fully satisfied if convictions are recorded only for
those offences.
General Strugar, please stand up.
The Chamber finds you guilty
pursuant to Article 7(3) of the Statute of the following two counts:
Count 3: Attacks on civilians, a
violation of the laws or customs of war, under Article 3 of the Statute;
Count 6: Destruction or wilful damage
done to institutions dedicated to religion, charity and education, the arts and
sciences, historic monuments and works or art and science, a violation of the
laws or customs of war, under Article 3 of the Statute.
While the Chamber is satisfied
that the elements of the following four counts have been established pursuant
to Article 7(3) of the Statute, the Chamber does not record a finding of
guilty against you in respect of:
Count 1: Murder;
Count 2: Cruel Treatment;
Count 4: Devastation not justified by
military necessity;
Count 5: Unlawful Attack on Civilian
Objects.
Further, the Chamber does not
find you guilty, pursuant to Article 7(1) of the Statute, in respect of any of
the six Counts.
The Chamber has set out in some
detail in the written Judgement the factors it has taken into consideration in
determining sentence. In particular, it has been conscious of the serious nature
of the attack on the Old Town of Dubrovnik, and the consequences for its
inhabitants and for the cultural properties damaged or destroyed in the attack.
The Chamber would emphasise that you are not to be sentenced for ordering the
attack on the Old Town. Your criminal liability arises because you failed to
take adequate measures to stop the shelling of the Old Town and because you
failed to ensure that those responsible for the attack were disciplined.
In these regards you were not the
immediate commander of those responsible. That was Admiral Joki}. You were
Admiral Joki}’s superior, and is therefore one step further removed. The
Chamber takes into account that Admiral Joki} has pleaded guilty to offences
arising from his part in the attack on the Old Town and has been sentenced to 7
years imprisonment.
The Chamber takes into account in
particular your age and his health, which is deteriorating, and other
mitigating factors which are set out in the written Judgement.
The Chamber hereby sentences you
to a single sentence of eight years’ of imprisonment.
You may sit down.
The Accused has been in custody
for 457 days. Pursuant to Rule 101(C) of the Rules, he is entitled to credit
for time spent in detention so far.
Pursuant to Rule 103(C) of the
Rules, the Accused shall remain in the custody of the Tribunal pending the
finalisation of arrangements for his transfer to the State where he shall serve
his sentence.