1. Prosecutor v. Miodrag Jokic, IT-01-42-PT, Plea Agreement between Miodrag Jokic and the Office of the Prosecutor, Confidential, Ex Parte, Under Seal, 27 August 2003 (“Plea Agreement”), para. 14.
2. Sentencing Judgement, para. 26.
3. Ibid., para. 28.
4. Ibid., para. 27.
5. Prosecutor v. Miodrag Jokic, IT-01-42, Second Amended Indictment, 26 August 2003, confirmed on 27 August 2003 (“Second Amended Indictment”).
6. At the Plea Hearing the Prosecution applied orally to amend the original indictment (confirmed on 27 February 2001 and unsealed on 2 October 2001) on the condition that the Appellant would plead guilty to six counts in the proposed Second Amended Indictment. See Prosecutor v. Miodrag Jokic, IT-01-42-PT, Plea Hearing, 27 August 2003 (“Plea Hearing”) T. 141-145.
7. Plea Agreement, paras 7-8; see Sentencing Judgement, para. 11.
8. Plea Hearing, T. 155-156.
9. Prosecutor v. Miodrag Jokic, IT-01-42-PT, Sentencing Hearing, 4 December 2003 (“Sentencing Hearing”).
10. Sentencing Judgement, para. 116.
11. Prosecutor v. Miodrag Jokic, Case No. IT-01-42/1-A, Miodrag Jokic’s Notice of Appeal, 16 April 2004 (“Notice of Appeal”).
12. Prosecutor v. Miodrag Jokic, Case No. IT-01-42/1-A, Appellant's Brief Pursuant to Rule 111, Confidential, 30 June 2004. A corrigendum thereto was filed on 3 August 2004: Prosecutor v. Miodrag Jokic, Case No. IT-01-42/1-A, Corrigendum to Appellant's Brief Pursuant to Rule 111 filed on 30 June 2004, Confidential. A public redacted version of the Appellant’s Brief Pursuant to Rule 111 was filed on 7 March 2005 (“Appellant's Brief ”).
13. Appellant’s Brief, para. 4.
14. Prosecutor v. Miodrag Jokic, Case No. IT-01-42/1-A, Prosecution Respondent Brief, Confidential, 9 August 2004. A public redacted version was filed on 4 March 2005 (“Respondent’s Brief”).
15. Prosecutor v. Miodrag Jokic, Case No. IT-01-42/1-A, Appellant’s Brief in Reply, Confidential, 23 August 2004. A public redacted version was filed on 7 March 2005 (“Brief in Reply”).
16. Prosecutor v. Miodrag Jokic, Case No.: IT-01-42/1-A, “Motion to Present Additional Evidence Pursuant to Rule 115” dated 27 May 2004 but filed confidentially in part on 1 June 2004 (“First Motion ”); “Motion to Present the Expert Opinion of Dr. Stanko Pihler as Additional Evidence Pursuant to Rule 115”, 21 June 2004, seeking to admit the Curriculum Vitae and Expert Opinion of Dr. Stanko Pihler as an Annex to the First Motion; “Second Motion to Present Additional Evidence Pursuant to Rule 115”, 21 June 2004, and “Third Motion to Present Additional Evidence Pursuant to Rule 115”, Confidential, 16 August 2004.
17. Prosecutor v. Miodrag Jokic, Case No. IT-01-42/1-A, Decision on Appellant’s Motions for Admission of Additional Evidence Pursuant to Rule 115, 31 August 2004 (“Decision on Appellant’s Additional Evidence Motions”).
18. Prosecutor v. Miodrag Jokic, Case No. IT-01-42/1-A, Appeal Hearing, 26 April 2005 (“Appeal Hearing”).
19. Celebici Appeal Judgement, paras 429, 716. In addition, Trial Chambers are obliged to take into account the extent to which any penalty imposed by a court of any State on the convicted person for the same act has already been served, as referred to in Article 10(3) of the Statute and in Rule 101(B)(iv).
20. Kupreskic et al. Appeal Judgement, para. 408.
21. Mucic et al. Judgement on Sentence Appeal, para. 11. See also Furundžija Appeal Judgement, para. 40 ; Celebici Appeal Judgement, para. 203; Dragan Nikolic Judgement on Sentencing Appeal, para. 8.
22. Tadic Appeal Judgement, para. 64; Furundžija Appeal Judgement, para. 37; Celebici Appeal Judgement, paras 434-435; Kupreskic et al. Appeal Judgement, para. 29; Kunarac et al. Appeal Judgement, paras 35-48; Vasiljevic Appeal Judgement, paras 4-12; Kvocka et al. Appeal Judgement, para.14.
23. Akayesu Appeal Judgement, para. 178; Kayishema and Ruzindana Appeal Judgement, para. 320; Musema Appeal Judgement, para. 15.
24. Celebici Appeal Judgement, para. 717.
25. Tadic Judgement in Sentencing Appeals, para. 22; Aleksovski Appeal Judgement, para. 187; Furund`ija Appeal Judgement, para. 239; Celebici Appeal Judgement, para. 725; Jelisic Appeal Judgement, para. 99; Kupreskic et al. Appeal Judgement, para. 408; Krstic Appeal Judgement, para. 242; Blaskic Appeal Judgement, para. 680.
26. Celebici Appeal Judgement, para. 725.
27. Appellant’s Brief, para. 31; AT. 318.
28. Appellant’s Brief, para. 31.
29. Ibid., para. 41 referring to paragraphs 20, 57 and 58 of the Sentencing Judgement.
30. Ibid. See also AT. 318.
31. Ibid., para. 40.
32. Respondent’s Brief, para. 4.3.
33. Ibid., paras 4.3, 4.7.
34. Ibid., paras 4.8, 4.10.
35. Brief in Reply, para. 6; AT. 318 - 319.
36. Respondent’s Brief, para. 4.18.
37. Ibid., para. 4.19.
38. AT. 358.
39. AT. 344.
40. Ibid.
41. Ibid. See also AT. 345.
42. AT. 348.
43. Ibid.
44. Second Amended Indictment, para. 8.
45. Plea Agreement, paras 11-12. The Appeals Chamber notes that reference to these passages within the Plea Agreement is made upon consultation with the parties.
46. Second Amended Indictment, para. 5.
47. For Counts one to three, see Second Amended Indictment, paras 11, 13; and for Counts four to six, see Second Amended Indictment, paras 18, 19, 21.
48. Plea Agreement, para. 3.
49. Plea Hearing, T. 138, Judge Orie : “The reduction of the indictment mainly is that the charges will be limited to the shelling of the old city of Dubrovnik on the 6th of December, 1991, and that the accused will be charged with six counts”.
50. Ibid., T. 144.
51. Sentencing Judgement, para. 20.
52. Ibid., para. 57.
53. Ibid., para. 58.
54. Ibid., para. 57 referring to Prosecutor v. Miodrag Jokic, Case No. IT-01-42/1-S, Prosecution’s Brief on the Sentencing of Miodrag Jokic, 14 November 2003 (“Prosecution Sentencing Brief ”), paras 38-40, which read as follows: “38. The Accused Jokic was aware that despite prohibitions against damaging the Old Town, on 23 and 24 October 1991, JNA mortar rounds fell within the Old Town of Dubrovnik. The Museum Rupe was struck, the Old Town grain silo and incidents of injury to civilians occurred. No disciplinary action for those breaches was taken against those responsible.
39. The Accused was also aware that on 9 November, a co-ordinated JNA land, sea and air attack was launched against Croatian objectives above the city. From 10 through 13 November, a variety of JNA ordnance fell on the Old Town, including at least fifty mortar rounds. No disciplinary action for those breaches of orders not to shell the Old Town was taken.
40. The Prosecution alleges and the Accused Jokic admits that the units responsible for the unlawful attacks against the Old Town of Dubrovnik on 6 December 1991 were directly subordinated to him and to the co-accused, Pavle Strugar and Vladimir Kova ~evic. These attacks resulted in death and injuries to civilians and damage and destruction to civilian objects throughout the Old Town and were a direct and foreseeable consequence of acts by JNA units operating in a command environment which was characterised by a lack of discipline.” See also Sentencing Hearing, T. 200.
55. This does not affect the discretionary power vested to the Appeals Chamber in general to correct an error of law if the interests of justice so require, cf. infra para. 26.
56. Sentencing Judgement, para. 20 referring to Sentencing Hearing, T. 200.
57. Sentencing Hearing, T. 198.
58. Ibid., T. 206.
59. Sentencing Judgement, para. 20.
60. Respondent’s Brief, para. 1.7; see also para. 4.14.
61. Brief in Reply, para. 6.
62. AT. 319.
63. Blaskic Appeal Judgement, para. 91 (footnote omitted).
64. Ibid., para. 92.
65. It must be noted that the Blaskic Appeal Judgement was rendered on 29 July 2004, several months after the Sentencing Judgement was issued.
66. See Blaskic Appeal Judgement, paras 91, 92; Kordic and Cerkez Appeal Judgement, paras 33, 34; Kajelijeli Appeal Judgement, para. 81.
67. Mucic et al. Judgment on Sentence Appeal, para. 16 (citations omitted).
68. See supra, para. 22.
69. Sentencing Judgement, paras 59- 62, 68.
70. Ibid., para. 62; see also para. 68.
71. Cf. Kajelijeli Appeal Judgement, paras 316-319.
72. Criminal Code of the Socialist Federal Republic of Yugoslavia, adopted by the SFRJ Assembly at the session of the Federal Council on 28 September 1976; declared by a decree of the President of the Republic on 28 September 1976; published in the Official Gazette of the SFRJ No. 44 of 8 October 1976; a correction was made in the Official Gazette, SFRJ No. 36 of 15 July 1977; took effect on 1 July 1977 (“SFRY Criminal Code”).
73. Appellant’s Brief, paras 43, 47.
74. Ibid., paras 46-48.
75. Ibid., para. 48.
76. Ibid. See also AT. 325.
77. AT. 325-327. The Appeals Chamber notes that in the Appellant’s Brief, the Appellant argues that Article 151 of the SFRY Criminal Code would have been applicable to the circumstances of his case. See Appellant’s Brief, para. 49.
78. AT. 328.
79. Respondent’s Brief, para. 4.25.
80. Ibid., para. 4.26.
81. Ibid., para. 4.27.
82. AT. 359.
83. The Prosecution suggests that “[w]ith respect to the arguments related to whether or not the law itself of the former Yugoslavia would criminalise this conduct […] the Court should be hesitant to go in that specific direction.” AT. 360.
84. AT. 361.
85. Brief in Reply, para. 10. See also the Defence arguments to the effect that: “Article 24, which refers to aiding and abetting of the Yugoslav Criminal Code does not provide [that] aiding in the commission of a crime can be committed by a failure to act or by non-commission. Therefore, it’s not possible to be an aider and abettor according to Articles 142, 148 and 151 if this aiding takes the form of non-commission or omission or failure to act.” AT. 326.
86. Brief in Reply, paras 11-12.
87. Sentencing Judgement, para. 26.
88. Plea Hearing, T. 155-156.
89. Article 142 SFRY Criminal Code.
90. Article 148(1) SFRY Criminal Code.
91. Article 151 SFRY Criminal Code. See Sentencing Judgement, para. 111.
92. Article 24 SFRY Criminal Code reads in its entirety: “Aiding (1) Anybody who intentionally aids another in the commission of a criminal act shall be punished as if he himself had committed it, but his punishment may also be reduced. (2) The following, in particular, shall be considered as aiding: the giving of instructions or counselling about how to commit a criminal act, the supply of tools and resources for the crime, the removal of obstacles to the commission of a crime, as well as the promise, prior to the commission of the act, to conceal the existence of the criminal act, to hide the offender, the means to commit the crime, its traces, or goods gained through the commission of a criminal act.”
93. Article 30 (2) SFRY Criminal Code.
94. Paragraph 21 of the Regulations Concerning the Application of the International Law of War to the Armed Forces of SFRY, Federal Secretariat for National Defence (1988), Part I, under the section titled “II. Prevention of Violations of the International Law of War and Criminal Responsibility for War Crimes”, reads: “Responsibility for the acts of subordinates. The commander is personally responsible for violations of the law of war if he knew or could have known that his subordinate units or individuals are preparing to violate the law, and he, does not take measures to prevent violations of the law of war. The commander who knows that the violations of the law of war took place and did not charge those responsible for the violations is personally responsible. In case he is not authorised to charge them to the authorized military commander, he would also be personally responsible. A commander is responsible as a participant or an instigator if, by not taking measures against subordinates who violate the law of war, he allows his subordinate units and individuals to continue to commit the acts.” Translation of paragraph 21 of the Regulations Concerning the Application of the International Law of War to the Armed Forces of SFRY, Federal Secretariat for National Defence (1988) in Appendix II of: Bassiouni, M. Cherif, with the Collaboration of Peter Manikas, The Law of the International Criminal Tribunal for the Former Yugoslavia (Irvington-on-Hudson, New York, Transnational Publishers Inc., 1996).
95. Sentencing Judgement, section IV.D.
96. Ibid., para. 106.
97. Rule 101(B) of the Rules.
98. Serushago Sentencing Appeal Judgement, para. 30; Dragan Nikolic Judgement on Sentencing Appeal, para.  69. See also Tadic Judgement in Sentencing Appeals, para. 21.
99. Appellant’s Brief, para. 51.
100. Ibid., para. 57.
101. Ibid., para. 56; AT. 320.
102. Appellant’s Brief, para. 58.
103. Respondent’s Brief, paras 4.38, 4.42, 4.51; AT. 338.
104. Appellant’s Brief, para. 52.
105. Brief in Reply, para. 17 (emphasis added).
106. Appellant’s Brief, para. 57; AT 321.
107. Appellant’s Brief, para. 55; Brief in Reply, para. 17.
108. Sentencing Judgement, footnote 100.
109. Appellant’s Brief, paras 53-54.
110. Respondent’s Brief, para. 4.48.
111. Ibid., paras 4.49-4.50 referring by analogy to the wording of Rule 62bis of the Rules providing that the factual basis of a guilty plea can be established on the lack of any disagreement between the parties about the facts of the case, and Rule 65ter (E) (i) of the Rules requiring the Prosecution to submit matters which are not in dispute at the pre-trial stage.
112. Ibid., para. 4.50.
113. Sentencing Judgement, footnote 100 (emphasis added).
114. Serushago Sentencing Appeal Judgement, para. 22. See also Musema Appeal Judgement, para. 395.
115. Appellant’s Brief, para. 56; Brief in Reply, para. 18; AT. 320.
116. Sentencing Judgement, para.101.
117. Ibid., para. 102.
118. Appellant’s Brief, para. 56(b ).
119. Respondent’s Brief, para. 4.54.
120. Sentencing Judgement, para. 88.
121. Ibid., para. 90.
122. Brief in Reply, para. 16.
123. Sentencing Judgement, para. 88 referring to Sentencing Hearing, T. 290.
124. Ibid., para. 83 referring to Prosecution Sentencing Brief, paras 52-53.
125. Sentencing Judgement, para. 89. This matter was referred to at paragraph 56(b)(ii) of the Appellant’s Brief. The Appeals Chamber notes that this mitigating factor was acknowledged by the Prosecution, as recognized by the Appellant during the Sentencing Hearing (Sentencing Hearing T. 289). See also Sentencing Judgement, para. 88.
126. Sentencing Judgement, paras 85, 90. This matter was referred to at paragraph 56(b)(iii) of the Appellant’s Brief. The Appeals Chamber notes that the Appellant’s participation in the ceasefire agreement and its implementation were facts accepted by the Prosecution (Prosecution Sentencing Brief, para. 52).
127. Sentencing Judgement, para. 91 ; this matter was referred to at para 56(b)(v) of the Appellant’s Brief.
128. Appellant’s Brief, para 56(b)( i). The Trial Chamber did however refer to this verbal agreement in section II of the Sentencing Judgement titled “Facts”, see Sentencing Judgement, para. 25.
129. Brief in Reply, para. 18; see also Appellant’s Brief, para. 56.b.(iv).
130. Sentencing Judgement, para. 85, citing Prosecutor v. Miodrag Jokic, Case No. IT-01-42/1-S, Miodrag Joki c’s Sentencing Brief (“Defence Sentencing Brief”), 14 November 2003, para. 60.
131. Kupreskic et al. Appeal Judgement, para. 430.
132. Sentencing Judgement, para. 90.
133. Brief in Reply, para. 19.
134. Ibid.
135. Ibid.
136. Sentencing Judgement, paras 90 -92.
137. Ibid., para. 103.
138. Ibid., paras 97, 101.
139. The Appeals Chamber notes that the Appellant did not address the issue of his “family circumstances” with respect to the present ground of appeal during the Appeal Hearing, see AT. 320-321.
140. Brief in Reply, para. 16.
141. Appellant’s Brief, para. 57: “The error of the Trial Chamber consisted in failing to attach(…( particular weight to the totality of the mitigating factors advanced and established by the Appellant.” See also Brief in Reply, para. 17: “As a consequence, those mitigating factors which were pleaded by the Appellant only (those factors in addition to the ones both parties had identified) were not given due consideration or weight by the Trial Chamber because of the legal error committed by the Trial Chamber.” See also the following statement by the Defence at the Appeal Hearing: “We say that this error consisted in failing to attach sufficient weight to the totality of the mitigating factors advanced and established by the Appellant.” (AT. 321).
142. ^elebici Appeal Judgement., para. 777; see also Kambanda Appeal Judgement, para. 124; Musema Appeal Judgement, para. 396.
143. Niyitegeka Appeal Judgement, para. 267.
144. Brief in Reply, para. 18.
145. Sentencing Judgement, para. 88 referring to Sentencing Hearing, T. 290.
146. Ibid., para. 91.
147. Appellant’s Brief, paras 59, 62; AT. 321.
148. See Defence Sentencing Brief, para. 62 referring to Confidential Annex E in footnote 77.
149. Appellant’s Brief, para. 62 referring to Prosecutor v. Miodrag Jokic, Case No.: IT-01-42-PT, Order on Miodrag Joki c’s Motion for Provisional Release, 29 August 2003 (“29 August 2003 Order”), p. 3; Order on Miodrag Jokic’s Request for Continued Provisional Release, 4 December 2003 (“4 December 2003 Order”), p. 2; AT. 321.
150. Appeals Hearing, T. 340 referring to Sentencing Judgement, paras 69, 97, 98 and 101.
151. Appellant’s Brief, para. 62.
152. Respondent’s Brief, para. 4.84.
153. Ibid., para. 4.85.
154. Sentencing Judgement, para. 100 referring to the advanced age of an accused, good behaviour whilst at the United Nations Detention Unit, full compliance with the terms and conditions imposed upon him during provisional release, and his family situation.
155. Ibid.
156. Ibid. referring to Banovic Sentencing Judgement, para. 75.
157. AT. 321-323. See also Brief in Reply, para. 22.
158. Respondent’s Brief, para. 4.72 referring to Sentencing Judgement, paras 97-103.
159. Ibid., para. 4.76 referring to Defence Sentencing Brief, para. 62 which refers in a footnote to Confidential Annex E.
160. Ibid., para. 4.78 referring to Sentencing Hearing T. 295.
161. Ibid.
162. Ibid., paras 4.79-4.80.
163. Ibid., para. 4.83.
164. Ibid., paras 4.81-4.83.
165. Sentencing Judgement, para. 97.
166. Ibid., para. 101.
167. Sentencing Hearing, T. 255 (open session), referred to in Sentencing Judgement, para. 101, footnote 161.
168. Sentencing Judgement, para. 97, footnote 146 citing Defence Sentencing Brief, para. 62.
169. Kupreskic et al. Appeal Judgement, para. 430.
170. Brief in Reply, para. 22.
171. 29 August 2003 Order, p. 3; and 4 December 2003 Order, p. 2.
172. Kupreskic et al. Trial Judgement, para. 852.
173. Appellant’s Brief, para. 62.
174. See Sentencing Judgement, paras 101, 102.
175. Appellant’s Brief, para. 64; AT. 323.
176. Appellant’s Brief, paras 66-67 ; AT. 323.
177. Appellant’s Brief, para. 68.
178. Ibid., para. 69.
179. Ibid., para. 70.
180. Respondent’s Brief, para. 4.108 referring to Sentencing Judgement, paras 97-102.
181. Ibid., para. 4.111.
182. Sentencing Judgement, paras 98, 101.
183. Appellant’s Brief, para. 66.
184. Respondent’s Brief, para. 4.101.
185. Sentencing Judgement, para. 98.
186. Celebici Appeal Judgement, para. 481.
187. Kupreskic et al. Appeal Judgement, para. 458.
188. Appellant’s Brief, para. 67.
189. Ibid., paras 67, 71.
190. Respondent’s Brief, para. 4.102.
191. Appellant’s Brief, para. 68. In light of the fact that the testimonies of the two investigators from the Office of the Prosecutor were given in closed session, the present Judgement will use pseudonyms to refer to these witnesses.
192. Ibid.
193. Respondent’s Brief, paras 4.103 -4.104.
194. Appellant’s Brief, para. 68, footnote 57, referring to Sentencing Hearing T. 225-235 (closed session) and T. 294 (private session).
195. Sentencing Judgement, para. 95, footnote 143. The four pages cited in the Appellant’s Brief but not cited in the Sentencing Judgement (Sentencing Hearing, T. 225-228, closed session) concern only introductory remarks by the witness.
196. Sentencing Hearing, T. 293 (private session).
197. Ibid.
198. Ibid., T. 294 (private session).
199. Appellant’s Brief, para. 68, footnote 56, referring to Sentencing Hearing, T. 217-218 (closed session).
200. Sentencing Hearing, T. 218 (closed session).
201. Appellant’s Brief, para. 69.
202. Respondent’s Brief, para. 4.106 referring to Sentencing Judgement, paras 87- 88.
203. Sentencing Judgement, para. 87.
204. Ibid., para. 91.
205. Appellant’s Brief, para. 69.
206. Ibid., para. 70; see also Brief in Reply, para. 26; AT. 324.
207. Ibid., para. 70.
208. Ibid., para. 71.
209. Brief in Reply, para. 25.
210. Respondent’s Brief, para. 4.108.
211. Ibid., para. 4.109.
212. AT. 343.
213. Sentencing Judgement, para. 73, section IV.C.1 titled: “Voluntary Surrender of the Accused”.
214. Ibid., para. 101, section IV.C.5 titled: “Personal Circumstances”.
215. Ibid., paras 74-78 in relation to the guilty plea, section IV.C.2 titled: “Guilty Plea and Acceptance of Responsibility”.
216. Ibid., paras 86, 89, section IV.C.3 titled “Remorse”.
217. Appellant’s Brief, para. 70.
218. Appellant’s Brief, paras 74-77.
219. Ibid., para. 77.
220. Ibid., para. 73.
221. Ibid., paras 76-77.
222. Ibid., para. 77.
223. Ibid.
224. Ibid.
225. AT. 337.
226. Appellant’s Brief, para. 77.
227. Respondent’s Brief, para. 4.113.
228. Ibid., para. 4.117.
229. Ibid.
230. Ibid., para. 4.118.
231. Ibid., para. 4.122 referring to Plea Agreement, para. 16 and Sentencing Judgement, para. 95.
232. Respondent’s Brief, para. 4.124.
233. Ibid., para. 4.125.
234. Ibid., para. 4.126; AT. 363.
235. Brief in Reply, para. 29.
236. Ibid., para. 30.
237. Kupreskic et al. Trial Judgement, para. 863.
238. Kupreskic et al. Appeal Judgement, para. 463.
239. Ibid.
240. Decision on Appellant’s Additional Evidence Motions, p. 4.
241. Sentencing Judgement, paras. 93-96.
242. Ibid., para. 114.
243. Ibid., para. 95.
244. Ibid.
245. Sentencing Hearing, T. 229-230 (closed session); see Appellant’s Brief, para. 76.
246. Sentencing Judgement, para. 95.
247. Ibid., referring in footnote 143, inter alia, to Sentencing Hearing, T. 229-235 (closed session).