Thursday, July 17, 2008

Judgement of the ICTY Appeals Chamber in the 'Dubrovnik' Case

On Thursday, 17 July, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) rendered its judgement [PDF document] on the appeals of both the Prosecution and the Defense against the conviction and sentence of the former Yugoslav People’s Army (JNA) General Pavle Strugar (Case No. IT-01-42-A).

In January 2005 the Trial Chamber sentenced Strugar to eight years in prison for his role in the 1991 shelling of the historic town of Dubrovnik, which is a UNESCO World Heritage site since 1979.

The Trial Chamber found Strugar, on the basis of superior criminal responsibility (Article 7(3) of the ICTY Statute), guilty on two counts of violating laws and customs of war: for attacks on civilians and for destruction of protected buildings. As such, the Chamber sentenced Strugar for failing to take adequate measures to stop the bombing of the Old Town of Dubrovnik and for not punishing the officers who were responsible. The Trial Chamber found Strugar not guilty on four other counts: murder, cruel treatment, devastation not justified by military necessity and unlawful attack on civilian objects.

In its judgement the Appeals Chamber extended the scope of Strugar's criminal responsibility for failing to prevent the bombing of the Old Town. It also convicted Strugar for two of the other counts: unjustified devastation and unlawful attacks on civilian objects.

The Appeals Chamber only allowed two grounds of appeal submitted by the Prosecution and ruled that, as a result of applying the wrong test for the requisite mens rea under Article 7(3), the Trial Chamber erred in not finding that as of the early hours of 6 December 1991, Strugar already had reason to know that his subordinates were about to commit crimes. It also ruled that the Trial Chamber erred in law by failing to enter cumulative convictions for unjustified devastation and unlawful attacks on civilian objects in addition to the counts for which it found Strugar guilty.

The errors committed by the Trial Chamber, however, did not impact Strugar's sentence, since the damage caused during the additional period had already been taken into account by the Trial Chamber and the additional counts for which Strugar was convicted on appeal were based on the same criminal conduct and did not add to the gravity of his crimes. In view of Strugar’s deteriorating health the Chamber reduced his sentence to seven and a half years in prison.

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