Source Document:http://www.un.org/icty/celebici/jugement/part5.htm
UNITED
NATIONSJudgment of the
International Criminal Tribunal for the Former Yugoslavia
in the case of
Delalic et al. (I.T-96-21)
"Celebici" 16 November 1998
V.Sentencing
A. Applicable Provisions
The provisions of the Statute and Rules hereinbelow stated are
applicable to the present section of this Judgement.
Article 24
Penalties
1. The penalty imposed by the Trial Chamber shall be limited to
imprisonment. In determining the terms of imprisonment, the Trial Chambers shall have
recourse to the general practice regarding prison sentences in the courts of the former
Yugoslavia.
2. In imposing the sentences, the Trial Chambers should take into
account such factors as the gravity of the offence and the individual circumstances of the
convicted person.
3. In addition to imprisonment, the Trial Chambers may order the return
of any property and proceeds acquired by criminal conduct, including by means of duress,
to their rightful owners.
Rule 85
Presentation of Evidence
(A) Each party is entitled to call witnesses and present evidence.
Unless otherwise directed by the Trial Chamber in the interests of justice, evidence at
the trial shall be presented in the following sequence:
[…]
(vi) any relevant information that may assist the Trial Chamber in
determining an appropriate sentence if the accused is found guilty on one or more of the
charges in the indictment.
[…]
Rule 101
Penalties
(A) A convicted person may be sentenced to imprisonment for a term up
to and including the remainder of the convicted person’s life.
(B) In determining the sentence, the Trial Chamber shall take into
account the factors mentioned in Article 24, paragraph 2, of the Statute, as well as such
factors as:
(i) any aggravating circumstances;
(ii) any mitigating circumstances including the substantial cooperation
with the Prosecutor by the convicted person before or after conviction;
(iii) the general practice regarding prison sentences in the courts of
the former Yugoslavia;
(iv) the extent to which any penalty imposed by a court of any State on
the convicted
(v) person for the same act has already been served, as referred to in
Article 10, paragraph 3, of the Statute.
(C) The Trial Chamber shall indicate whether multiple sentences shall
be served consecutively or concurrently.
(D) Credit shall be given to the convicted person for the period, if
any, during which the convicted person was detained in custody pending surrender to the
Tribunal or pending trial or appeal.
The provisions of Article 24(2) of the Statute which require the
Trial Chamber to take the gravity of the offence and the individual circumstances of the
convicted person into account, and the provisions of Rule 101 of the Rules, would appear
to include as many varied factors and situations as would be necessary for consideration
in the imposition of sentences upon conviction. However, Article 24(1) of the Statute and
sub-Rule 101(B)(iii) have gone further to direct the Trial Chamber to "have recourse
to the general practice regarding prison sentences in the courts of the former
Yugoslavia", and "to take into account … such factors as … the general
practice regarding prison sentences in the courts of the former Yugoslavia". It would
appear to the Trial Chamber that these provisions aim at uniformity of the length of
sentences, not necessarily the consideration of their imposition, which is based on
factors such as gravity of the offences and other factors. The expression "other
factors" cannot be exhaustive and are not limited to those named, but are within the
discretion of the Trial Chamber.
The statutory provisions of the International Tribunal speak of
prison sentences in the courts of the former Yugoslavia. These provisions are discussed in
greater detail in sub-section 1 below. At all times material to this case, capital
punishment was in existence in the Penal Code of the Socialist Federal Republic of
Yugoslavia. By constitutional amendment in 1977 capital punishment was abolished in some
of the republics of the SFRY other than Bosnia and Herzegovina. In the Social Federal
Republic of Yugoslavia imprisonment, as a form of punishment, was limited to a term of 15
years or, in cases for which the death penalty was prescribed as an alternative to
imprisonment, to a term of 20 years. 1063This
provision seems to be in contradiction to sub-Rule 101(A) which provides that a
person convicted by the Tribunal may be sentenced to imprisonment for a term "up to
and including the remainder of the convicted person’s life." Rule 101 was
made under, and by virtue of, Article 15 of the Statute and should be read in this light.
So construed, sub-Rule 101(A) is not in violation of Article 24 (1) which merely requires
the Trial Chamber to have recourse to the general practice regarding prison sentences in
the courts of the former Yugoslavia.
The governing expression in Article 24(1) is "have recourse
to" which, to the Trial Chamber, is an ordinary English expression and not a term of
art. The Concise Oxford Dictionary 1064defines
the word "recourse" as "resorting to a possible source of help". This
suggests that the source of help to which recourse is had need not be mandatory and
binding. The general view is that it is a mere aid to elucidation of the principles to be
followed.
There is no doubt that reference to the penal practice of the law of
the former Yugoslavia relating to sentencing is unprecedented. It is true that
international law has not developed a sentencing pattern of its own and must rely on the
experience of domestic jurisdictions for its guidance. In this case, the legal system of
the former Yugoslavia is the most appropriate jurisdiction from which to seek guidance.
The reference immediately raises two broad issues. First, does recourse to the general
practice mean recourse to legislative prescriptions, or recourse to the actual sentencing
practices of judges and courts in the former Yugoslavia? The plain literal meaning of the
expression in Article 24(1) suggests that recourse should be had to the actual
sentences imposed. Secondly, it will be observed that there is an obvious discrepancy and
conflict in the sentencing regimes of the International Tribunal and that of the courts of
the former Yugoslavia. There is no provision for the Tribunal to impose a sentence of
death. It can impose a life sentence. In contrast, the SFRY Penal Code allowed the
imposition of a sentence of death in certain cases. However, the courts of the former
Yugoslavia were not allowed to impose a prison term of more than 20 years, even for
criminal offences involving the death penalty. Where such differences or discrepancies
exist between the Statute and Rules of the International Tribunal and the SFRY Penal Code
concerning maximum or minimum sentences, how should it be resolved? This raises difficult
questions of interpretation of the governing expression in Article 24(1) of the
Tribunal’s Statute.
This provision was considered by Trial Chamber I in its judgement on
sentencing in The Prosecutor v. Drazen Erdemovic of 29 November 1996,1065 where recourse to the general
practice regarding sentences applied by the courts of the former Yugoslavia was held to be
"in fact, a reflection of the general principle of law internationally recognised by
the community of nations whereby the most severe penalties may be imposed for crimes
against humanity…".1066 The
sentencing judgment in The Prosecutor v. Dusko Tadic,1067
referred to the expression "recourse" in the sense of reference that the Trial
Chamber had "recourse to the statutory provisions governing sentencing in the former
Yugoslavia and to the sentencing practice of its courts".1068
In each case, the practice in the courts of the former Yugoslavia was consulted as an aid
to determination of the appropriate sentence.
The Defence for Hazim Delic has submitted that the penal sanctions in
the SFRY Penal Code to which recourse shall be had were in existence before the Security
Council, through the creation of this Tribunal, established another enforcement mechanism
with its own penal sanctions. It is argued that Article 24(1) of the Statute does not vest
the Tribunal with the authority to impose the death penalty. It also does not set a
minimum or maximum penalty for any offence. Rule 101 allows the imposition of life
imprisonment upon conviction for any offence. It is, accordingly, submitted by the Defence
for Mr. Delic that, under the principles of legality and nullum crimen sine lege,
the International Tribunal cannot impose a sentence exceeding 15 years imprisonment. It is
argued that any such sentence would be greater than that authorised at the time of the
offence and therefore in violation of the nullum crimen sine lege principle. This
view appears to suggest that the International Tribunal, through Article 24(1) of the
Statute, is bound by the law of the former Yugoslavia relating to sentences.
Chapter 16 of the SFRY Penal Code, entitled "Criminal Acts
against Humanity and International Law" is the part of the Penal Code most relevant
to the present proceedings. Article 142 therein proscribes a number of criminal acts,
including killing, torture, inhumane treatment of the civilian population, causing great
suffering or serious injury to body and health, unlawful forced transfer of populations,
use of measures of intimidation and terror, and the unlawful taking to concentration camps
and other unlawful confinements. A minimum term of imprisonment of not less than five
years is to be imposed on conviction of each of these offences. The express words are
"shall be punished by imprisonment for not less than five years or by the death
penalty".
Article 41(1) of the SFRY Penal Code sets out the various factors to
be taken into account in the determination of an appropriate sentence. Summarily stated,
this provision directs the relevant courts to consider: (a) the degree of criminal
responsibility and motives for the commission of the offence, the intensity of threat or
injury to the protected object and the circumstances of the commission of the offence; (b)
the perpetrator’s past life, his personal circumstances and his behaviour after the
commissioning of the offence; and (c) other circumstances relating to the personality of
the perpetrator.
It may be justifiably argued that the guidelines prescribed in
Article 41(1) of the SFRY Penal Code for the determination of sentences after conviction,
are more comprehensive than the criteria prescribed in a combined reading of Article 24
(2) of the Statute and sub-Rule 101(B) of the Rules. Accordingly, whilst resort may be had
to the sentencing practices of the courts in the former Yugoslavia, such practice cannot
be determinative. This Trial Chamber agrees completely with the opinion expressed in the Erdemovic
Sentencing Judgement, 29 November 1996, that:
[g]iven the absence of meaningful national judicial precedents and the
legal and practical obstacles to a strict application of the reference to the general
practice regarding prison sentences in the courts of the former Yugoslavia, the Trial
Chamber considers that the reference to this practice can be used for guidance, but is not
binding. ...
Whenever possible, the International Tribunal will review the relevant
legal practices of the former Yugoslavia but will not be bound in any way by those
practices in the penalties it establishes and the sentences it imposes for the crimes
falling within its jurisdiction. 1069
In this context it may further be observed that the statute of the
ICTR, in its provision on penalties, similarly provides that recourse shall be made to the
general practice regarding prison sentences in the courts of Rwanda in determining terms
of imprisonment.1070 In the recent
case of The Prosecutor v. Jean Kambanda it was held that such practices were not
binding upon the ICTR but were only one of the factors to be taken into account. 1071
In addition to recourse to the general practice of the courts of the
former Yugoslavia with regard to sentencing, it is crucial to bear in mind the fact that
the offences being punished are offences under international humanitarian law and the
purpose for the exercise of this ad hoc jurisdiction. Whereas judicial precedents
may be lacking in international jurisdictions, the motives for establishing the
International Tribunal under Chapter VII of the United Nations Charter barely five years
ago should not be ignored.
The recent dictum of Trial Chamber I of the ICTR would appear to be
an echo of the universal attitude towards those found guilty by it and this Tribunal.
Trial Chamber I of the ICTR stated that:
[i]t is clear that the penalties imposed on accused persons found
guilty by the Tribunal must be directed, on the one hand, at retribution of the said
accused, who must see their crimes punished, and over and above that, on the other hand,
at deterrence, namely dissuading for good those who will attempt in future to perpetrate
such atrocities by showing them that the international community was not ready to tolerate
the serious violations of international humanitarian law and human rights.1072
This is a policy in support of punishment reflecting both general and
particular deterrence. The policy of the United Nations in matters concerning internal
strife has not abandoned efforts of reconciliation. Wherever the evidence demonstrates the
possibility of reconciliation, it is the obligation of the Trial Chamber to accentuate
such factors and give effect to them.
1. Applicable SFRY Penal Code Provisions on
Sentencing
As has been discussed above, Article 24 (1) of the Statute requires
the Trial Chamber to have recourse to the sentencing practice of the courts of the former
Yugoslavia. It is, therefore, appropriate to consider such relevant laws in terms of this
provision. Articles 38 and 48 of the SFRY Penal Code therefore deserve consideration.
Imprisonment
Article 38
(1) The punishment of imprisonment may not be shorter than 15 days nor
longer than 15 years.
(2) The court may impose a punishment of imprisonment for a term of 20
years for criminal acts eligible for the death penalty.
(3) For criminal acts committed with intent for which the punishment of
fifteen years imprisonment may be imposed under statute, and which were perpetrated under
particularly aggravating circumstances or caused especially grave consequences, a
punishment of imprisonment for a term of 20 years may be imposed when so provided by
statute.
(4) The punishment of imprisonment is imposed in full years and months,
but prison terms not exceeding six months may also be measured in full days.
(5) A term of imprisonment is served in closed, semi-open or open
institutions for serving sentences.
(6) A convicted person who has served half of his term of imprisonment,
and exceptionally a convicted person who has served a third of his term, may be exempted
from serving the rest of his term on the condition that he does not commit a new criminal
act by the end of the period encompassed by his sentence (parole).
Combination of criminal acts
Article 48
(1) If an offender by one deed or several deeds has committed several
criminal acts, and if he is tried for all of the acts at the same time (none of which has
yet been adjudicated), the court shall first assess the punishment for each of the acts,
and then proceed with the determination of the integrated punishment (compounded sentence)
for all the acts taken together.
(2) The court shall impose the integrated punishment by the following
rules:
(i) if capital punishment has been inflicted by the court for one of
the combined criminal acts, it shall pronounce that punishment only;
(ii) if the court has decided upon a punishment of 20 years
imprisonment for one of the combined criminal acts, it shall impose that punishment only;
(iii) if the court has decided upon punishments of imprisonment for the
combined criminal acts, the integrated punishment shall consist of an aggravation of the
most severe punishment assessed, but the aggravated punishment may not be as high as the
total of all incurred punishments, and may not exceed a period of 15 years imprisonment;
(iv) if for the combined criminal acts several punishments of
imprisonment have been decided upon which taken together do not exceed three years, the
integrated punishment may not exceed a period of eight years of imprisonment;
(v) if fines have been determined by the court for the combined
criminal acts, the court shall increase the highest fine determined, but it may neither
exceed the total of all punishments decided upon nor 50,000 dinars, that is to say 200,000
dinars when one or more of the criminal acts have been committed for the purpose of
obtaining gain;
(vi) if the court has fixed punishments of imprisonment for some of the
combined criminal acts, and fines for others, it shall impose one punishment of
imprisonment and one fine under provisions set forth in items 3 to 5 of this paragraph.
(3) The court shall impose an accessory punishment if it is prescribed
for any one of the combined criminal acts, and if it has decided upon several fines it
shall impose one compound fine under provisions set forth in item 5, paragraph 2 of this
article.
(4) If the court has decided upon punishments of imprisonment and
juvenile custody for the combined criminal acts, it shall impose a punishment of
imprisonment as the compound sentence, following the rules set forth in items 2 to 4,
paragraph 2 of this article.
Explaining the sentencing provisions of the former SFRY, Dr. Zvonimir
Tomic, an expert witness for the Defence, pointed out that, by virtue of the provisions of
article 38(1), prison sentences in the SFRY could not be shorter than 15 days, nor longer
than 15 years. Thus, there was a mandatory minimum and maximum period of sentence which
the courts could impose. This kind of punishment was described as the closed sentencing
model. A second model, which was described as the half-open sentencing frame, was one
where there existed a prescribed maximum or minimum. In a third model the courts could
sentence within a scale from five to 15 years.
Dr. Tomic explained that prison sentences could be imposed for
offences involving capital punishment. This was where circumstances of mitigation rendered
capital punishment an improper sentence. In such circumstances a maximum prison sentence
of 20 years could instead be imposed. Accordingly, for such offences, the courts could
impose capital punishment, or 20 years imprisonment, or, as an alternative, a prison
sentence ranging from five to 15 years. A 20 year prison term could only be imposed for
the most serious types of criminal offences.1073
In response to questions by counsel for the Defence referring to the
correctness of the sentence of 20 years imprisonment imposed in the case of The
Prosecutor v. Dusko Tadic, Dr. Tomic explained:
[t]he Court always had the possibility to substitute the capital
punishment with a 20-year prison sentence. So at the beginning, it was possible for the
court to determine a 20-year sentence for all criminal offences for which capital
punishment was provided for. The court always had the choice. It could either determine
the capital punishment or 20-year prison sentence. That was one possibility. The other
possibility was, even if it did determine capital punishment, a higher court, an appeals
court could substitute that punishment with a 20-year prison sentence, but the first
solution was commonly used.1074
There is still an aspect of sentencing policy which has raised some
controversy. There is no question that the International Tribunal should have recourse to
the practice of the courts of the former Yugoslavia in the sentencing of convicted
offenders. However, for crimes which would receive the death penalty in the courts of
former Yugoslavia, the International Tribunal may only impose a maximum sentence of life
imprisonment, consistent with the practice of States which have abolished the death
penalty. This is consistent with the commitment of States progressively to abolish the
death penalty under the Second Optional Protocol to the ICCPR.1075
This is the meaning given to the relevant provisions of the Statute by members of the
Security Council. 1076
In the Tadic Sentencing Judgment, Trial Chamber II held,
following the provisions of the SFRY Penal Code, that "[i]mprisonment as a form of
punishment was limited to a term of 15 years, or, in cases for which the death
penalty was prescribed as an alternative to imprisonment, to a term of 20 years".1077 It may, on this basis, be contended
that for the International Tribunal to impose a sentence beyond 20 years would be contrary
to law. This view is held by Professor Bassiouni, who has written that the principles of
legality and nullum crimen sine lege prohibit the International Tribunal from
imposing a sentence of more than 20 years. According to this author:
A more serious problem arises in that penalties for international
crimes, such as those contained in Articles 2 through 5, are only punishable by a maximum
of 20 years under the applicable national criminal codes. A higher penalty, which appears
to be authorized by Rule 101(A), would violate principles of legality and the prohibition
of ex post facto laws. Consequently, Rule 101 should be amended.1078
The Trial Chamber disagrees with the above opinion as representing an
erroneous and overly restrictive view of the concept of nullum crimen sine lege.
This concept is founded on the existence of an applicable law. The fact that the new
maximum punishment exceeds the erstwhile maximum does not bring the new law within the
principle.
The Trial Chamber accordingly rejects the submission of the Defence
for Hazim Delic that since neither the Statute nor the Rules were in force during the
times applicable to this case, the Trial Chamber should not impose a sentence longer than
15 years imprisonment for any offence committed prior to the adoption of the Statute of
the International Tribunal. The principle on which this submission is based is the
awareness of the nationals of Bosnia and Herzegovina of the maximum punishment of 15 years
or death, which could be commuted to 20 years.
The Trial Chamber is of the opinion that the governing consideration
for the operation of the nullum crimen sine lege principle is the existence of a
punishment with respect to the offence. As has been stated by the Appeals Chamber in the Tadic
Jurisdiction Decision:
. . . violations were punishable under the Criminal Code of the
Socialist Federal Republic of Yugoslavia and the law implementing the two Additional
Protocols of 1977. The same violations have been made punishable in the Republic of Bosnia
and Herzegovina by virtue of the decree-law of 11 April 1992. Nationals of the former
Yugoslavia as well as, at present, those of Bosnia-Herzegovina were therefore aware, or
should have been aware, that they were amenable to the jurisdiction of their national
criminal courts in cases of violation of international humanitarian law.1079
The fact that the new punishment of the offence is greater than the
former punishment does not offend the principle. Furthermore, the contention that the Tadic
Sentencing Judgment, which imposed a sentence of 20 years imprisonment,1080 was wrong for not following the
former Yugoslavian sentencing procedure would appear to the Trial Chamber to be
misconceived. There is no jurisprudential or juridical basis for the assertion that the
International Tribunal is bound by decisions of the courts of the former Yugoslavia.
Article 24(1) of the Statute does not so require. Article 9(2), which vests primacy in the
Tribunal over national courts, indeed implies the contrary.
2. General Principles Relevant to Sentences
Imposed by the Tribunal
Sentencing practices in national systems are generally intended to
protect the interests of those subject to the jurisdiction of the national legal system.
These practices include a broad range of possibilities, which often change from time to
time with the aims of sentencing that are paramount in most national systems. In respect
of the International Tribunal, Article 24(2) of the Statute provides that the gravity of
the offence and the individual circumstances of the convicted person shall be taken into
account in imposing sentences. In accordance with sub-Rule 101(B) of the Rules, the Trial
Chamber is further required to consider any aggravating circumstances, mitigating
circumstances, including substantial cooperation with the Prosecution by the convicted
person before or after conviction, and 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. It is in
this regard that the evidence of the Prosecution and the Defence becomes relevant. Whereas
the Prosecution is entitled to lead all relevant evidence that may assist the Trial
Chamber in determining an appropriate sentence in the event that the accused is found
guilty on one or more of the charges in the Indictment, it is expected to observe the
fundamental principle of the presumption of innocence to which the accused is still
entitled until convicted.
On the other hand, the Defence is presumed in its evidence in
mitigation to assume that the accused has been found guilty of the offence. This is a very
curious situation in which to place the Trial Chamber, which should avoid any prejudicial
factors likely to affect the case of an accused presumed to be innocent. It is, in such a
situation, somewhat complex to maintain the delicate balance between observance of the
full rights of the accused, and the enforcement of the procedural rules relating to
sentencing before conviction. The Trial Chamber is expected to disabuse from its
consideration all prejudicial evidence in aggravation or mitigation, which would affect
its determination of the guilt or innocence of the accused person.
The nature of the relevant information required by the Statute is
unambiguously provided in sub-Rule 85(A)(vi). It is "any relevant information that
may assist the Trial Chamber in determining an appropriate sentence if the accused is
found guilty on one or more of the charges in the indictment". The language of the
provision would appear to be all inclusive to the extent that it suggests the admission of
evidence inadmissible at trial for the purpose of determining the guilt or innocence of
the accused. This is the view of the Prosecution, which submits that the Trial Chamber
should be entitled to consider a broad array of information, without necessarily according
the same weight to all the evidence tendered by the Prosecution or the Defence.
Sub-Rule 85(A)(vi) would appear to support this submission.
In many civil law jurisdictions, and the United States, almost all
information may be considered relevant for this purpose and very little limitation is
placed on what the court properly may take into account when imposing sentence:
No limitation shall be placed on the information concerning the
background, character and conduct of a person convicted of an offense which a court of the
United States may receive and consider for the purpose of imposing an appropriate
sentence.1081
The Canadian Criminal Code provides as follows:
In determining the sentence, a court shall consider any relevant
information placed before it, including any representations or submissions made by or on
behalf of the prosecutor or the offender.1082
There seems to be no uniformity in the characterisation of conduct at
trial in relation to the effect on the administration of justice. In most systems, both
common and civil law, the behaviour of an accused concerning the administration of justice
and during trial, may be considered a factor relevant to the determination of sentence, if
convicted. For instance, sub-Rule 77(A)(ii) makes it a contempt of the Tribunal and,
therefore, an aggravating factor, for any accused to interfere with or intimidate a
witness. Furthermore, an accused person who persists in disruptive conduct may, by order
of the Trial Chamber, be removed from the courtroom following a warning from the Trial
Chamber.1083 These could constitute
aggravating circumstances, though not expressly so recognised, and would be considered in
the evaluation of the accused’s character. In the federal courts of the United
States, obstruction of justice is regarded as an aggravating circumstance, providing for
the enhancement of sentence. Included in this category are, inter alia,
intimidation of witnesses, or otherwise unlawfully influencing a co-defendant or witness,
perjury or suborning perjury. 1084
Although sub-Rule 85(A)(vi) enables consideration of a broad variety
of factors in the determination of the appropriate sentence on conviction, the most
relevant factors are those central to the circumstances of the crime for which the accused
has been found guilty. Thus, though evidence is tendered by the parties, including those
collateral to the proceedings and relating to the circumstances of the accused, the issue
of mitigation or aggravation only becomes relevant after guilt has been determined. This
is because the question of sentence must depend on the particular circumstances of the
crime itself and the role of the accused therein. In the absence of a conviction, no
consideration of aggravating or mitigating circumstances arises.
Criminal responsibility and culpability within the Statute of the
International Tribunal is considered both in terms of the exercise of superior authority
and of direct participation in the commission of the crimes charged. The sentencing
provisions of Article 24 and Rule 101 do not make such a distinction. This is probably
because of the evident truth on which the concept of command responsibility is based,
which is the maxim qui facit per alium facit per se, and the fact that offences are
committed by individual human beings and not by abstract entities. The Trial Chamber has
already stated that the issue of sentencing arises only after guilt has been established.
Accordingly, as submitted by the Prosecution in this case, "there can be no absolute
rule regarding the manner in which an accused’s position as a superior affects his
sentence. . .".1085 The general
view is that "[t]he punishment meted out, like the question of guilt itself, will
depend on the circumstances of each case". 1086
The finding of guilt on the basis of the exercise of superior
authority depends upon knowledge of the crimes committed and the failure to prevent their
commission, or punish the perpetrators. The conduct of the accused in the exercise of his
superior authority could be seen as an aggravating circumstance or in mitigation of his
guilt. There is no doubt that abuse of positions of authority or trust will be regarded as
aggravating. Where the circumstances of the superior and the exercise of authority could
be regarded as far from actual knowledge, but guilt is determined on the basis of
constructive knowledge, this could be a mitigating factor.
As has been pointed out, an accused may be charged for the commission
of an offence in his individual and personal capacity as one of the actual perpetrators of
the offence in accordance with Article 7(1) of the Statute, and/or in his capacity as a
superior authority with respect to the commission of the offence in accordance with
Article 7(3). The Defence for Hazim Delic has submitted that it would be improper to
impose double sentences on an accused charged and found guilty on both counts. The
contention is that both counts are mutually exclusive. A charge under Article 7(1) is
based on a theory of acts, whereas a charge under Article 7(3) is based on omission and
failure to perform a duty to prevent and/or punish war crimes.
Whilst the proposition in theory appears to be unimpeachable, in
practice there are factual situations rendering the charging and convicting of the same
person under both Articles 7(1) and 7(3) perfectly appropriate. For instance, consider the
situation where the commander or person exercising superior authority personally gives
orders to his subordinates to beat the victim to death, and joins them in beating the
victim to death. There is here criminal liability under Article 7(1) as a participant in
the perpetration of the offence, and under Article 7(3) as a superior. Liability in this
case is not mutually exclusive, since the exercise of superior authority in this case is
not only the result of an omission to prevent the commission of the crime. It is a
positive act of knowledge of the crime and participation in its commission.
The question is whether the crime attracts only one sentence in
respect of a superior who participates in the offence charged. Ideally a superior who
participates in the actual commission of a crime should be found guilty both as a superior
and also as a direct participant as any of the other participants who did so in obedience
to his orders. However, to avoid the imposition of double sentencing for the same conduct,
it should be sufficient to regard his conduct as an aggravating circumstance attracting
enhanced punishment.
A convicted person may be sentenced to imprisonment for a term up to
and including the remainder of his or her life. In determining sentence, the Trial Chamber
shall take into account the factors mentioned in Article 24(2) of the Statute and sub-Rule
101(B) of the Rules, as well as such factors as the age of the accused, his antecedents
including his general reputation, and such other matters as would enable the Trial Chamber
to determine the appropriate sentence consistent with the gravity of the offence. The
Trial Chamber shall indicate whether multiple sentences shall be served consecutively or
concurrently. Furthermore, credit shall be given to the convicted person for the period,
if any, during which he was detained in custody pending surrender to the International
Tribunal or pending trial or appeal.
Article 24(2) and sub-Rule 101(B) by themselves contain all the
indicia necessary for the determination of the appropriate sentence after a finding of
guilt. By far the most important consideration, which may be regarded as the litmus test
for the appropriate sentence, is the gravity of the offence. It is necessary to reiterate
the fact that the Tribunal is vested with jurisdiction over serious violations of
international humanitarian law committed in the territory of the former Yugoslavia since
1991. In the present case, the offences committed include several acts of murder, torture,
sexual assaults of the most revolting types, multiple rapes, severe beatings, cruel
treatment and inhumane conditions. In the Tadic Sentencing Judgment, Trial
Chamber II appears to have taken into account the specific harm caused to the victims (and
their families) by the accused.1087
Similarly, Trial Chamber I, in the Erdemovic Sentencing Judgement, 29 November 1996,
recognised that the suffering of the victims may be considered in determining the
appropriate penalty to impose.1088 The
Prosecution has urged the Trial Chamber, in evaluating the gravity of the relevant
offences, to take into consideration the suffering of the victims who ultimately died in
the Celebici prison-camp.
The gravity of the offences of the kind charged has always been
determined by the effect on the victim or, at the most, on persons associated with the
crime and nearest relations. Gravity is determined in personam and is not one of a
universal effect. Whereas the guilt of the accused may be related to the specific and
general harm of the victim and his relations, it would be too remote to ascribe every woe
of the surrounding neighbourhood to the guilty accused. However, in the situation of the
Celebici prison-camp it is possible that the conduct of the guilty accused may have
resulted in the deaths of, or injury to, other detainees in the prison-camp other than
those in relation to whom specific findings have been made above. The Trial Chamber is,
however, not to engage in speculation and should be bound by the evidence before it. The
Trial Chamber adopts the same view in respect of detained persons who survived but suffer
from the effects of prolonged incarceration.
The gravity of the offence and the individual circumstances of the
accused are typically to be considered with respect to the particular and, if need be, the
peculiar circumstances of each case. Thus, the circumstances of the accused would
determine the factors the Trial Chamber will take into account as matters of aggravation
or mitigation. In the Tadic Sentencing Judgment, the willing involvement of the
accused in violent ethnic cleansing was regarded as an aggravating circumstance.1089 In the Erdemovic Sentencing
Judgement, 29 November 1996, after observing that express consideration of aggravating
circumstances in crimes against humanity was not necessary, since these crimes are per
se of extreme gravity, the Trial Chamber went on to suggest possible circumstances
surrounding the commission of the offence which might preclude leniency.
Sub-Rule 101(B)(ii) provides that the Trial Chamber, in determining
the sentence, shall take into account mitigating factors "including the substantial
cooperation with the Prosecutor by the convicted person before or after conviction".
The use of the term "including", which is an expression of expansion, suggests
that this provision is not exhaustive. Accordingly, other such factors may be taken into
consideration by the Trial Chamber in the determination of sentence.
In the Tadic Sentencing Judgment, the minor leadership role of
the accused was taken into account in determination of the sentence.1090 In the sentencing of Drazen
Erdemovic factors such as obedience to superior orders and substantial cooperation with
the Prosecution were taken into account. While duress was rejected as a complete defence
for the charge of crimes against humanity and/or a war crime involving the killing of
innocent human beings, it was taken into account by way of mitigation. 1091
Article 33 of the SFRY Penal Code prescribed three reasons for the
imposition of criminal sanctions, to be taken into account in the determination of
sentence. These reasons were:
(1) preventing the offender from committing criminal acts and his
rehabilitation;
(2) rehabilitative influence on others not to commit criminal acts;
(3) [. . .] influence on the development of citizens’ social
responsibility and discipline.
The Trial Chamber agrees that these are reasons worth considering in
the determination of sentence. In addition to retribution and deterrence, relied upon by
the Prosecution, the Trial Chamber here briefly discusses protection of society,
rehabilitation and motive as factors to be taken into consideration in the determination
of sentence.
(a) Retribution
The theory of retribution, which is an inheritance of the primitive
theory of revenge, urges the Trial Chamber to retaliate to appease the victim. The policy
of the Security Council of the United Nations is directed towards reconciliation of the
parties. This is the basis of the Dayton Peace Agreement by which all the parties to the
conflict in Bosnia and Herzegovina have agreed to live together. A consideration of
retribution as the only factor in sentencing is likely to be counter-productive and
disruptive of the entire purpose of the Security Council, which is the restoration and
maintenance of peace in the territory of the former Yugoslavia. Retributive punishment by
itself does not bring justice.
(b) Protection of Society
The protection of society from the guilty accused is an important
factor in the determination of appropriate sentence. The policy of protection depends upon
the nature of the offence and the conduct of the accused. The protection of society often
involves long sentences of imprisonment to protect society from the hostile, predatory
conduct of the guilty accused. This factor is relevant and important where the guilty
accused is regarded as dangerous to society.
(c) Rehabilitation
The factor of rehabilitation considers the circumstances of
reintegrating the guilty accused into society. This is usually the case when younger, or
less-educated, members of society are found guilty of offences. It therefore becomes
necessary to reintegrate them into society so that they can become useful members of it
and enable them to lead normal and productive lives upon their release from imprisonment.
The age of the accused, his circumstances, his ability to be rehabilitated and
availability of facilities in the confinement facility can, and should, be relevant
considerations in this regard.
(d) Deterrence
Deterrence is probably the most important factor in the assessment of
appropriate sentences for violations of international humanitarian law. Apart from the
fact that the accused should be sufficiently deterred by appropriate sentence from ever
contemplating taking part in such crimes again, persons in similar situations in the
future should similarly be deterred from resorting to such crimes. Deterrence of high
level officials, both military and civilian, in the context of the former Yugoslavia, by
appropriate sentences of imprisonment, is a useful measure to return the area to peace.
Although long prison sentences are not the ideal, there may be situations which will
necessitate sentencing an accused to long terms of imprisonment to ensure continued
stability in the area. Punishment of high-ranking political officials and military
officers will demonstrate that such officers cannot flout the designs and injunctions of
the international community with impunity.
(e) Motives for the Commission of Offences
Generally, motive is not an essential ingredient of liability for the
commission of an offence. It is to some extent a necessary factor in the determination of
sentence after guilt has been established. The offences charged are violations of
international humanitarian law. It is, therefore, essential to consider the motives of the
accused. The motive for committing an act which results in the offence charged may
constitute aggravation or mitigation of the appropriate sentence. For instance, where the
accused is found to have committed the offence charged with cold, calculated
premeditation, suggestive of revenge against the individual victim or group to which the
victim belongs, such circumstances necessitate the imposition of aggravated punishment. On
the other hand, if the accused is found to have committed the offence charged reluctantly
and under the influence of group pressure and, in addition, demonstrated compassion
towards the victim or the group to which the victim belongs, these are certainly
mitigating factors which the Trial Chamber will take into consideration in the
determination of the appropriate sentence.
B. Factors Relevant to Sentencing in
Respect of Each Accused
This part of the Judgement is concerned with the imposition of the
appropriate penalties on each of the accused persons found guilty and in respect of the
counts of the Indictment of which they have been found guilty. For this purpose the Trial
Chamber, considers, generally, the provisions of Article 24(2) of the Statute and sub-Rule
101(B) of the Rules, as well as the sentencing practice of the courts of the former
Yugoslavia, following the provisions of the SFRY Penal Code. The Trial Chamber has
discussed the law and practice in some detail above. In considering the appropriate
sentence, the Trial Chamber briefly discusses, where relevant, the circumstances of the
offence, the role played by the accused, factors in aggravation or mitigation of the
offence and any other relevant factors. The three accused persons involved in this
exercise are Zdravko Mucic, Hazim Delic and Esad Landzo. The appropriate sentences imposed
upon them on conviction in respect of the various counts in the Indictment will be
considered seriatim, beginning with Zdravko Mucic. Zejnil Delalic, having been
acquitted on all counts charged in the Indictment, is not a subject of sentencing.
1. Zdravko Mucic3.
The Trial Chamber has found Zdravko Mucic guilty, pursuant to Article
7(3) of the Statute, for: the wilful killing and murder of Zeljko Cecez, Petko Gligorevic,
Gojko Miljanic, Miroslav Vujicic and Pero Mrkajic, Scepo Gotovac, Zeljko Milosevic, Simo
Jovanovic and Bosko Samoukovic, and for wilfully causing great suffering or serious injury
to body or health to, and cruel treatment of, Slavko Susic (counts 13 and 14); the
torture of Milovan Kuljanin, Momir Kuljanin, Grozdana Cecez, Milojka Antic, Spasoje
Miljevic and Mirko Dordic (counts 33 and 34); the wilful causing of great suffering or
serious injury to body or health to, and cruel treatment of, Dragan Kuljanin, Vukasin
Mrkajic and Nedeljko Draganic, and the inhuman and cruel treatment of Mirko Kuljanin
(counts 38 and 39); and for the inhuman and cruel treatment of Vaso Dordic, Veseljko
Dordic, Danilo Kuljanin, Miso Kuljanin, Milenko Kuljanin and Novica Dordic (counts 44 and
45). The Trial Chamber has further found that Zdravko Mucic, by his participation in the
maintenance of inhumane conditions in the Celebici prison-camp, as well as by his failure
to prevent or punish the violent acts of his subordinates by which the detainees in the
Celebici prison-camp were subjected to an atmosphere of terror, is guilty of wilfully
causing great suffering or serious injury to body or health, and cruel treatment (counts
46 and 47). Mr. Mucic has also been found guilty pursuant to Article 7(1) of the Statute
of unlawful confinement of civilians (count 48).
In the determination of the appropriate sentence to impose in respect
of a finding of guilt it is important, in addition to the general factors, to consider the
personal factors such as the age of the accused and his antecedents, including time spent
in detention before and during trial. The general reputation of the accused is also a
factor to be taken into account. These factors may operate either in aggravation or in
mitigation, depending upon the matter in consideration.
The Defence for Zdravko Mucic has given evidence of the good
character of the accused. Many witnesses, including the daughter of the accused, gave oral
testimony before the Trial Chamber. The Defence has pointed out, and it is not denied by
the Prosecution, that there is no credible evidence of active, direct participation, in
person, in respect of any act of violence or inhuman treatment, by the accused. On the
other hand, there is evidence, even on the part of the Prosecution, that the accused, by
his words or actions, and indeed by his actual presence in the Celebici prison-camp,
prevented the commission of acts of violence.
Zdravko Mucic was at all material times the commander of the Celebici
prison-camp and responsible for conditions in the prison-camp. He was the direct superior
of Hazim Delic. It is significant to observe that Mr. Mucic, with the exception of counts
46 and 47 (inhumane conditions) and count 48 (unlawful confinement of civilians), has not
been found guilty of actively participating in any of the offences charged in the
Indictment. All the convictions are in respect of offences for which he was culpable and
liable because of the criminal acts of his subordinates.
As discussed above in Section III, the Celebici prison-camp was
established to detain those Bosnian Serbs in the Konjic municipality whose loyalty to the
State of Bosnia and Herzegovina was in doubt. The solution to the perceived threat from
those arrested during military operations by the Bosnian government forces at, inter
alia, Bradina and Donje Selo, was to keep them detained in the Celebici prison-camp
under the watchful eyes of Bosnian guards who would ensure that they would no longer
constitute security risks or any danger to the State. The Trial Chamber has found that the
facilities improvised in the Celebici prison-camp were not satisfactory, being far from
adequate for the number of detainees. Those who were responsible for the detention of the
prisoners clearly did not consider the question of suitability of the facility, which was
not used as a prison in times of peace. Moreover, the detainees were Bosnian Serbs and
those identified as being in opposition to the survival of the independent Bosnian State.
Those superintending the prison-camp were soldiers of this nascent State, some of whom
were zealous for its survival and positively resentful and revengeful for the real or
imagined activities of their opponents.
The Trial Chamber has found that conditions of detention in the
Celebici prison-camp were harsh and, indeed, inhuman. The feeding conditions were at
starvation level, medical health and sanitary conditions were inadequate and indeed
deplorable. The guards were hostile, and severe beatings, torture and humiliation of
detainees were the norm. Some guards experimented punishment methods on detainees, and the
death of detainees was a common occurence and not a surprise. No one appeared to care
whether the detainees survived. These were the conditions perpetrated by Zdravko Mucic,
who was the commander of the Celebici prison-camp after its creation. There is evidence
that Mr. Mucic selected the guards. He also chose his deputy, Hazim Delic in apparent
demonstration of the type of discipline he expected in the prison-camp. In addition, the
prison-camp was set within the Celebici barracks, where soldiers of the Bosnian army had
free access.
The uncontradicted evidence before the Trial Chamber is that Mr.
Mucic was the commander of the prison-camp, with overall authority over the officers,
guards and detainees, and the person to whom the officers and guards were subordinate. Mr.
Mucic was responsible for conditions in the prison-camp and for the unlawful confinement
of the civilians there detained. He made no effort to prevent or punish those who
mistreated the prisoners, or even to investigate specific incidents of mistreatment
including the death of detainees. Instead, there is evidence that he was never in the
prison-camp at night, when mistreatment was most likely to occur. He was regularly away to
visit his family, and remained absent for days in obvious neglect of his duty as commander
and the fate of the vulnerable detainees. According to the evidence before the Trial
Chamber, he was aware that detainees were being mistreated or even killed. In apparent
encouragement, he tolerated these conditions over the entire period he was commander of
the prison-camp.
The conduct of Mr. Mucic before the Trial Chamber during the course
of the trial raises separately the issue of aggravation. The Trial Chamber has watched and
observed the behaviour and demeanour of Mr. Mucic throughout the trial. The accused has
consistently demonstrated a defiant attitude and a lack of respect for the judicial
process and for the participants in the trial, almost verging on lack of awareness of the
gravity of the offences for which he is charged and the solemnity of the judicial process.
The Presiding Judge has, on occasions, had to issue stern warnings reminding him that he
was standing trial for grave offences. The Prosecution has also presented evidence of an
exchange of notes between Zejnil Delalic and Zdravko Mucic conspiring about the
fabrication of evidence to be given at the trial. There have also been allegations that
Mr. Mucic participated in the threatening of a witness in the courtroom. Such efforts to
influence and/or intimidate witnesses are particularly relevant aggravating conduct, which
the Trial Chamber is entitled to take into account in the determination of the appropriate
sentence.
In addition to the number of aggravating factors, there are some
mitigating instances. There was, in the Konjic municipality, a strong anti-Serb feeling at
the time relevant to the Indictment. It was in the midst of this anti-Serb hostility that
Mr. Mucic became the commander of a detention facility for Serbs suspected of anti-Bosnian
activities. Zdravko Mucic was a Bosnian Croat among Bosnian Muslims. He could not
ordinarily be seen to be favouring the Bosnian Serbs, who were perceived by many as the
enemies of the Bosnian State. These considerations, probably in self-preservation,
prevented him from taking stronger measures to contain the obvious mistreatment of
detainees.
The Prosecution would seem to agree with this view but counters
immediately with the submission that it is not an excuse for the failure of Mr. Mucic to
take appropriate action and to do everything within his authority to prevent mistreatment
of detainees.
In its submission, the Defence for Mr. Mucic refers to the evidence
of witnesses for the Prosecution who testified in glowing terms about the attitude of Mr.
Mucic towards the detainees. Reference was made to the oral testimony of Miro Golubovic,
Nedeljko Draganic, Grozdana Cecez, Witness P and Witness T, all of whom were
Prosecution witnesses. The testimony of Miro Golubovic was that, in his opinion,
there would have been no war in Bosnia and Herzegovina if only 20 per cent of the people
were like Mr. Mucic. Indeed, the witness stated that he owed his life, and his ability to
testify, to Mr. Mucic. Grozdana Cecez spoke of how Mr. Mucic prevented the rape of a 13
year old girl in the prison-camp by taking her back to her parents. Mrs. Cecez also
testifed that he paid 300 German Marks to enable her to escape and that he may have
assisted in saving others. The apparent concern of Mr. Mucic for the detainees was also
evinced in the oral testimony of Witness P, who overheard a telephone conversation in
which Mr. Mucic made an urgent and frantic request for food for the detainees. 1095
The Trial Chamber has made very sober reflection on the submissions
of the parties. There is a lot to be said for the evidence in mitigation, as there is for
the aggravating circumstances discussed above. It is relevant, and crucial, to take into
account the circumstances in which the events occurred as well as the social pressures and
hostile environment within which the accused was operating. On the whole, the Trial
Chamber has taken into consideration the conduct of the accused within the situation when
he was in possession of considerable authority and was exercising the power of life and
death over the detainees in the prison-camp. The Trial Chamber has taken into account the
fact that the accused has not been named by any of the witnesses as an active participant
in any of the murders or tortures for which he was charged with responsibility as a
superior. The Trial Chamber has not placed any reliance on Esad Landzo’s testimony
that Mr. Mucic ordered the killing of Scepo Gotovac. The scenario thus described
would suggest the recognition of individual failing as an aspect of human frailty, rather
than one of individual malice. The criminal liability of Mr. Mucic has arisen entirely
from his failure to exercise his superior authority for the beneficial purpose of the
detainees in the Celebici prison-camp.
The Defence for Mr. Mucic has urged the Trial Chamber to compare his
case with that of Field Marshal von Leeb during the Second World War1096. The Field Marshal was convicted for
the execution of an order by his subordinates, known as "The Barbarossa Jurisdiction
Order". This order imposed upon junior officers the authority to shoot individuals on
suspicion of certain acts. There was evidence that von Leeb had implemented the order by
passing it through the chain of command. The United States Military Tribunal found that
the order had been criminally applied by the units and held that, having set it in motion,
von Leeb must bear the responsibility for its illegal enforcement. The only parallel with
the instant case is that both Field Marshal von Leeb and Mr. Mucic exercised and
enjoyed command authority and superior responsibility over subordinates in respect of
whose wrongful acts they were and are criminally responsible.
In the instant case, Mr. Mucic, by means of deliberate neglect of his
duty to supervise his subordinates, thereby enabling them to mistreat the detainees in the
Celebici prison-camp, has been imputed with knowledge of their crimes. Mr. Mucic was
consciously creating alibis for possible criminal acts of subordinates. It would
constitute a travesty of justice, and an abuse of the concept of command authority, to
allow the calculated dereliction of an essential duty to operate as a factor in mitigation
of criminal responsibility. In this particular case, the reason for staying away from the
prison-camp at nights without making provision for discipline during these periods, which
was to save himself from the excesses of the guards and soldiers, is rather an aggravating
factor. The sentence of three years imprisonment imposed in the case of Field Marshal von
Leeb would not constitute an appropriate precedent on the facts of this case.
The general attitude of Mr. Mucic during the trial proceedings in and
outside the courtroom would seem to be a repetition of his casual and perfunctory attitude
to his duties in the Celebici prison-camp. He made concerted and sustained efforts where
he could to intimidate witnesses and to suborn favourable evidence from them. His
demeanour throughout the proceedings suggests that he appears to have regarded this trial
as a farce and an expensive joke. Zdravko Mucic has declined to give any oral evidence,
notwithstanding the dominant position he played in the facts giving rise to the
prosecution of the accused persons.
In imposing sentence, the Trial Chamber has also considered the
gravity of the offences for which the accused has been convicted. We do not consider
retribution simpliciter as a desirable basis for sentencing in offences of the
nature with which the Trial Chamber here is confronted. The Trial Chamber bears in mind,
in the conviction of persons exercising superior authority, that the subordinate official,
in respect of whose criminal acts the superior is held liable, is often also charged and
convicted of the same offence.
4. Hazim Delic5.
The Trial Chamber has found Hazim Delic guilty of committing a series
of violent crimes upon detainees who were at his mercy in the Celebici prison-camp. He has
been adjudged as guilty for: the wilful killing and murder of two detainees, Scepo Gotovac
and Zeljko Milosevic (counts 1 to 4); the severe beating of Slavko Susic which constitutes
cruel treatment and wilfully causing great suffering or serious injury to body or health
(counts 11 and 12); the rapes of two female detainees, Grozdana Cecez and Milojka Antic,
which constitutes torture (counts 18, 19, 21 and 22); inhuman acts involving the use of an
electrical shock device on detainees, which constitutes inhuman and cruel treatment
(counts 42 and 43); and, because each of the aforementioned crimes contributed to an
atmosphere of terror and thus to the creation and maintenance of inhuman conditions in the
Celebici prison-camp, wilfully causing great suffering or serious injury and cruel
treatment (counts 46 and 47).
The Prosecution contends, inter alia, that Hazim Delic
personally participated in monstrous crimes. He murdered a number of detainees, he
brutally raped a number of the women in the prison-camp and then boasted about it, and he
frequently beat detainees, often using a baseball bat, causing his victims to suffer
broken ribs. The Prosecution submits that he took a sadistic pleasure in the infliction of
pain, for example, when he used an electrical device to shock detainees, he would laugh in
response to pleas for mercy from the victims.
According to the Prosecution, when Mr. Delic was not physically
mistreating detainees, he would often gratuitously take action to make them suffer in
other ways, which included making some of them run around and pretend to be automobiles.
It contends that Mr. Delic’s own violent behaviour towards the prisoners and his
callous disregard for their well-being, could only have encouraged the brutality of others
and ensured the existence of a culture of impunity in the Celebici prison-camp.
The Prosecution indicates that Mr. Delic has a prior conviction for
murder in Bosnia and Herzegovina for which he served approximately two to two and half
years. The Prosecution also presented victim statements in which the victims described the
impact of the crimes committed upon them. In addition, the Prosecution submits that the
Trial Chamber is able to consider the suffering of the victims in the context of the
conditions of imprisonment as an aggravating factor.
The Defence contends that the personal circumstances of Hazim Delic
are relevant in the determination of his sentence. It describes a man who was born and
lived most of his life in the Konjic municipality. He graduated from secondary school in
1980 and served as a JNA infantryman from January 1982 until February 1983. He was
permitted to leave the army 55 days early because of good behaviour. Shortly after his
release from the JNA, he commenced employment as a locksmith repairing machinery in a wood
working plant. Mr. Delic was married on 31 January 1984 and has two young children. He was
mobilised early in the armed conflict in Bosnia and Herzegovina and prior to that time had
not had trouble with the law, nor had he been charged with any criminal offences. He had
received no training prior to his assignment to the Celebici prison-camp. His Defence
tendered a number of statements including one from his father and one from his wife. These
support the Defence description of the background of Mr. Delic and attest to his good
character.1097
Further, the Defence submits that, on the basis of an expert medical
opinion, Hazim Delic suffers from post traumatic stress syndrome based on his experiences
during the war. Apparently, over the past year he has become better adjusted and is
increasingly able to control his temper and, due to the end of his solitary confinement,
is less depressed. In addition, the Defence states that Mr. Delic has had no problems with
authority in the Detention Unit or with his fellow detainees, regardless of their
background. Finally, the Defence seeks to rely on a declaration by one of its
investigators who interviewed a number of people in the Konjic municipality and reported, inter
alia, that Hazim Delic had arranged for the release of prisoners, intervened to
stop the beatings of prisoners by guards, sought medical treatment for a number of
detainees and, on one occasion, sought to arrange for the provision of soap to the
detainees in order to make conditions more hygienic and lessen the chances of disease.
During sentencing proceedings Hazim Delic made a brief statement in
mitigation of his sentence. He stated that he had said "everything he could to the
Prosecution", but that after hearing the testimony of Esad Landzo, he could not sleep
at night.1098 He denied giving any
orders to kill detainees, to set them on fire or to force them to perform fellatio upon
each other. 1099
The touchstone of sentencing is the gravity of the offence for which
an accused has been found guilty, which includes considering the impact of the crime upon
the victim. Accordingly, the Trial Chamber shall now turn to a consideration of the
circumstances of each crime for which Mr. Delic stands convicted.
Hazim Delic has criminally caused the death of two detainees in the
Celebici prison-camp. He was a party to the brutal and merciless beatings of Scepo
Gotovac. He beat this elderly man to death on the basis of an accusation that he had been
responsible for the deaths of Muslims in the Second World War. The cruel premeditation of
Hazim Delic is underlined by the fact that he warned his victim before beating him, that
he should not hope to remain alive. Zeljko Milosevic also died at the hands of Hazim Delic
because Mr. Delic believed he was a Serb sniper. The victim was subjected to a beating by
Mr. Delic with a piece of electrical cable, prior to the beating which lead to his death.
After the victim refused to make "confessions" to journalists visiting the
prison-camp, he encountered the wrath of Mr. Delic, who forewarned him of what was to come
and told him to be ready to be beaten at an appointed hour. Thereafter, this detainee was
taken out and beaten to death by Hazim Delic, thereby indicating the cold premeditation
behind his acts. Mr. Delic has also been found to have inflicted a series of vicious
beatings on Slavko Susic, one of which included the use of a heavy implement.
Hazim Delic is guilty of torture by way of the deplorable rapes of
two women detainees in the Celebici prison-camp. He subjected Grozdana Cecez not only to
the inherent suffering involved in rape, but exacerbated her humiliation and degradation
by raping her in the presence of his colleagues. The effects of this crime are readily
apparent from the testimony of the victim when she said "…he trampled on my
pride and I will never be able to be the woman that I was."1100
Before the first rape of Milojka Antic, Hazim Delic threatened her
and told her that, if she did not do whatever he asked, she would be sent to another
prison-camp or shot. He then forced her to take her clothes off at gunpoint, ignored her
pleas for mercy and cursed and threatened her while raping her. The following day he
compounded her fear and suffering by stating "…[w]hy are you crying? This will
not be your last time"1101. This
rape was followed by two others, one of which involved painful and physically damaging
anal penetration. These were committed by Hazim Delic when he was armed, in total
disregard of his victim’s pleas for mercy. Ms. Antic testified as to the effect these
crimes had on her, including feelings of misery, constant crying and the feeling that she
had gone crazy. In a victim impact statement submitted by the Prosecution for the purposes
of sentencing, she stated, "[t]he wounds that I carry from the rapes in Celebici will
never go away".1102
Hazim Delic is also guilty of inhuman and cruel treatment through his
use of an electrical shock device on detainees. The shocks emitted by this device caused
pain, burns, convulsions and scaring and frightened the victims and other prisoners. The
most disturbing, serious and thus, an aggravating aspect of these acts, is that Mr. Delic
apparently enjoyed using this device upon his helpless victims. He treated the device like
a toy. He found its use funny and laughed when his victims begged him to stop. There is
little this Trial Chamber can add by way of comment to this attitude, as its depravity
speaks for itself.
In addition to the offences where Hazim Delic has been found guilty,
the Trial Chamber has made a number of factual findings regarding his behaviour in the
prison camp. For example, Mr. Delic was instrumental in locking Milovan Kuljanin in a
small, dark manhole, with another detainee, for at least a day and a night without any
food or water. The purpose of this act was to intimidate the victim prior to his
interrogation, during which Mr. Delic entered the room and struck Milovan Kuljanin with a
wooden object. He was also present during the collective beating of detainees. Further, he
consistently singled out one of the detainees, Vukasin Mrkajic for abuse, and would hit
him almost every time he came to Hangar 6, for no apparent reason.
Hazim Delic is guilty of contributing to the atmosphere of terror
that prevailed in the prison-camp as a result of the foregoing acts. He deliberately
contributed to conditions where detainees were compelled to live with the ever present
fear of being killed or subjected to physical abuse. Further, Hazim Delic contributed to
this atmosphere by threatening the detainees. For example, Witness R stated that, when Mr.
Delic was confronted by a request for medical care by a detainee he responded with the
statement "sit down, you have to die anyway, whether you are given medical assistance
or not". 1103This same witness
testified that this was a favourite phrase that Mr. Delic used with detainees. This is
supported by the testimony of Nedeljko Draganic who stated that, when he asked to go to
the infirmary in order to have his wound cleaned, Mr. Delic would tell him not to go
adding "[y]ou don’t need that, you won’t last very long".1104 In addition, Witness R testified
that while in Hangar 6, Mr. Delic would come in and say to the detainees "‘sit
down basluci’, the word meaning Muslim tombstones, wishing to imply that we would
stay there forever".1105
In addition, Hazim Delic acted in a manner that demeaned the
detainees. For example, there is evidence that he only allowed the detainees in Hangar 6
to leave the Hangar twice a day in order to urinate in groups of 30-40 people. Mr. Delic
would order them out, in response to which they would have to run out of the Hangar to a
ditch and attempt to urinate. A few moments later they were ordered to stop and return to
the Hangar. This is contrasted with the fact that, at least initially, these detainees
were allowed unrestricted toilet access to a ditch and septic tank behind the Hangar.
An examination of the foregoing crimes and their underlying
motivations, where relevant, demonstrates that they cannot be characterised as anything
other than some of the most serious offences that a perpetrator can commit during wartime.
The manner in which these crimes were committed are indicative of a sadistic individual
who, at times, displayed a total disregard for the sanctity of human life and dignity.
This is only amplified by the fact that Hazim Delic was the deputy commander of the
prison-camp. His victims were captive and at his mercy, he abused his position of power
and trust, causing at least two men to die and consigning numerous others to the suffering
reserved for survivors of torture and other grave mistreatment. Thus, these circumstances
are considered significant aggravating factors in the sentencing of Hazim Delic.
The motive for the commission of these breaches of humanitarian law
is also a relevant aggravating factor to be taken into account in the sentencing of Hazim
Delic. The evidence indicates that, as well has having a general sadistic motivation,
Hazim Delic was driven by feelings of revenge against people of Serb ethnicity. Before
raping Ms. Antic, he stated that "the Chetniks1106
were guilty for every thing that was going on. He [Delic] started to curse my Chetnik
mother". Nedeljko Draganic, stated that Mr. Delic "walked into the [sic] Hanger
Number 6 on one occasion and he told us that we are all detained because we were
Serbs".1107 Mirko Dordic
testified that, on one occasion, Mr. Delic took detainees outside into the sunshine. The
guards switched on spiritual Muslim songs while the detainees had to shout certain slogans
in response to Mr. Delic’s, and others, prompting, such as "Hazim is the
greatest" or "Sieg Heil".1108
Risto Vukalo stated that Mr. Delic took the detainees out in front of Hanger 6, and
ordered them to say slogans of a religious nature which were distasteful to them.1109
The mitigating factors operating in favour of Hazim Delic are the
fact that the evidence discloses that on one occasion he distributed blankets to detainees1110. In addition, he occasionally
arranged medicine and medical care for some detainees. 1111Further,
the Trial Chamber considers that the evidence submitted by the Defence on the personal
background, character and health of Hazim Delic are relevant factors in sentencing and
have treated them as such.
Contrary to the contention of the Defence, Hazim Delic did not
surrender himself to the International Tribunal, but was detained on 2 May 1996 in Bosnia
and Herzegovina by the Bosnian authorities and transferred to the Tribunal on 13 June
1996. Accordingly, this contention is incorrect and cannot be used in mitigation of his
sentence.
6. Esad Landzo
The charges that stand established against Esad Landzo are clearly of
the most serious nature, being, the wilful killing and murder of Scepo Gotovac, Simo
Jovanovic and Bosko Samoukovic, the torture of Momir Kuljanin, Spasoje Miljevic and Mirko
Dor|ic, and wilful causing of great suffering or serious injury to and cruel treatment of
Slavko Susic and Nedeljko Draganic. In addition to the specific acts in the Indictment
which Mr. Landzo has been found to have committed, the Trial Chamber also notes that he
contributed substantially towards the atmosphere of terror prevailing in the Celebici
prison-camp through his brutal treatment of the detainees. The beatings and other forms of
mistreatment which Mr. Landzo meted out to the prisoners detained in Hangar 6 and
elsewhere in the prison-camp were inflicted randomly and without any apparent provocation,
in a manner exhibiting some imaginative cruelty as well as substantial ferocity.
The Trial Chamber thus notes the aggravating factors which are
relevant in relation to Mr. Landzo’s conduct in the Celebici prison-camp. In
particular, and as emphasised above, reference should be made to the substantial pain,
suffering and injury which Mr. Landzo inflicted upon each of his victims and those who
were detained in the prison-camp and were witness to his cruelty. Many of these victims
and witnesses bear the permanent physical and psychological scars of
Mr. Landzo’s cruelty and their experiences within the prison-camp. For example,
Novica Dordic, stated that:
if I had another 70 lives, regular human lives, I don’t think that
I would be able to forget this, not all of it. I’m forgetting details, but the
essence of everything that I went through, that I experienced, is there to stay. It may
just be pushed back into the subconscious. It may not show up in regular life but the
essence is essence. I was humiliated there in every respect, as a human being, as a person
and physically and health wise, and I can’t forget that. 1112
In particular, there can be no doubt as to the savagery with which
Mr. Landzo beat to death Scepo Gotovac, an elderly and defenceless man, and his potential
for cruelty, exhibited by the pinning of a metal badge to Mr. Gotovac’s head in
addition to his beating. The Trial Chamber has also heard testimony that Mr. Landzo
continued in his beating of Mr. Gotovac, impervious to the pleas for mercy of the victim.1113 This is also the case with the
killing of Simo Jovanovic, who was heard to cry "Please don’t do it
brothers" while being beaten to death outside Hangar 6,1114
a murder for which Mr. Landzo has been found to be responsible. Similarly, his sudden
attack on Bosko Somoukovic was sustained and ferocious, admittedly motivated by vengeful
desires and serious enough to result in death shortly thereafter. The Trial Chamber has
also heard evidence that Mr. Landzo threatened the detainees with violence should any
of them attempt to come to the assistance of those who he singled out for particular
mistreatment.1115
Furthermore, many witnesses testified before the Trial Chamber about
Mr. Landzo’s apparent preference for inflicting serious burns upon detainees in the
prison-camp. It is the view of this Trial Chamber that such a method of mistreatment
exhibits particularly sadistic tendencies and clearly requires premeditation. Mr. Landzo
has, indeed, been found guilty of torture for such burning incidents, particularly in
relation to Momir Kuljanin, Spasoje Miljevic, Mirko Dordic, as well as of wilfully causing
great suffering or serious injury to body or health to, and cruel treatment of, Nedeljko
Draganic.
The Trial Chamber has further made factual findings that Esad Landzo
tied a burning fuse-cord around Vukasin Mrkajic, forced two brothers to commit fellatio
with each other and ordered a father and son to beat one another. While Mr. Landzo was not
charged directly with these offences and thus is not sentenced in relation to them, the
Trial Chamber again notes the heinous nature of the acts involved and the depravity of
mind necessary to conceive of and inflict such forms of suffering.
Mr. Landzo has also been found guilty of directly contributing to the
atmosphere of terror which existed in the Celebici prison-camp throughout the period
relevant to the Indictment, by his constant kicking, beating and mistreatment of the
detainees. That Mr. Landzo deliberately sought to instil such terror and apprehension in
the detainees is evident from his threatening words and behaviour towards them. For
example, Witness N testified during the trial that he was once taken out of Hangar 6 by
Mr. Landzo and made to kneel down while Mr. Landzo pressed a gun against his neck in mock
execution.1116 It has been made
abundantly clear from such testimony that all of the detainees regarded Mr. Landzo with
great fear and trepidation that he would turn his attention on them, with horrific
consequences.1117
The Defence for Mr. Landzo, in its submissions on sentencing, makes
reference to certain mitigating circumstances which it believes to be pertinent. These
include, the extreme youth of Mr. Landzo at the time relevant to the Indictment, his
family background, his character, his admissions of guilt and feelings of remorse, his
attempt to co-operate with the Prosecution and his voluntary surrender to the authorities
of Bosnia and Herzegovina.1118 The
Defence further suggests that no sentence should be imposed for any of the counts of which
Mr. Landzo might be found guilty, that would exceed five years and that all such sentences
should be set to run concurrently. The Defence argues that Mr. Landzo would thus be
enabled to remould his future in accordance with his newly reformed and responsible
personality.
The Prosecution concedes that the youth and mental state of Mr.
Landzo at the time of commission of the offences should be taken into account in deciding
upon his appropriate sentence.1119However,
it further argues that his personality problems are such that he represents a continuing
danger to society. The Prosecution also disputes the claim that Mr. Landzo had offered to
co-operate with it and contends that the Defence for Mr. Landzo approached it, in
September 1997, with the proposal that he would plead guilty in the event that it would
agree to a maximum sentence of five years imprisonment. It further states that, in view of
the severity of the crimes committed by Mr. Landzo, the Prosecution did not accept this
proposal. 1120
The Trial Chamber does not consider Mr. Landzo’s belated partial
admissions of guilt, or any expressions of remorse, to significantly mitigate, in the
circumstances, the crimes committed by him. Prior to his appearance before the Trial
Chamber as his own witness, Mr. Landzo did not, in any of his interviews or written
statements, admit his guilt. This remained the case despite the fact that Mr. Landzo
watched and listened to many victims of his mistreatment as they testified in the
courtroom and were subjected to gruelling cross-examination on his behalf. Mr. Landzo did
address a written statement to the Trial Chamber after the end of his trial, stating that
he was sorry for his conduct in the Celebici prison-camp and that he wished to express his
regrets to his victims and their families.1121
Such expression of remorse would have been more appropriately made in open court, with
these victims and witnesses present, and thus this ostensible, belated contrition seems to
merely have been an attempt to seek concession in the matter of sentence. In addition, the
Trial Chamber does not consider any attempt at plea bargaining to be a mitigating factor
in the matter of sentencing.
The Defence for Mr. Landzo also raises once again the argument that
he was merely an ordinary soldier and, as such, should not be subject to the jurisdiction
of the International Tribunal, which is limited to persons in positions of superior
authority. This argument has been considered and dismissed above and the Trial Chamber
finds no reason to revisit it in detail. It does, however, note that the statement issued
in May of this year (1998) by the Tribunal Prosecutor concerning the withdrawal of charges
against several indicted persons, quoted by the Defence,1122
indicates that an exception to the new policy of maintaining the investigation and
indictment only of persons in positions of some military or political authority, is made
for those responsible for exceptionally brutal or otherwise extremely serious offences.
From the facts established and the findings of guilt made in the present case, the conduct
of Esad Landzo would appear to fall within this exception.
The Defence further contends that Mr. Landzo committed the offences
established against him under the orders of his superiors. This assertion has been
considered and rejected in the examination of the evidence under each of the counts of the
Indictment relating to him. Even were it to be accepted that Mr. Landzo was, on occasion,
ordered to kill or mistreat prisoners within the prison-camp, the evidence does not
indicate that he performed these tasks with reluctance. To the contrary and as discussed
above, the nature of his acts strongly indicates that he took some perverse pleasure in
the infliction of great pain and humiliation.
It is, moreover, incorrect to say that Mr. Landzo voluntarily
surrendered to the International Tribunal. According to his own statement, he was first
called to Sarajevo by the Bosnian authorities and he was detained there pending his
transfer to The Hague. Upon completion of the relevant procedure by the Supreme Court of
Bosnia and Herzegovina, Mr. Landzo was transferred to the Tribunal on 13 June 1996.
Nonetheless, there are certain features of Mr. Landzo’s case
that must be taken into account in his favour when deciding upon the measure of sentence
to be imposed upon him. First, there is his relative youth – he was only nineteen
years of age at the time of commission of the offences – and his poor family
background. Related to these considerations is his immature and fragile personality at
that time, which is undisputed between the parties and has been testified to by several
expert witnesses. While the special defence of diminished responsibility, raised by the
Defence, has been rejected by the Trial Chamber above, the Trial Chamber may nonetheless
take note of the evidence presented by the numerous mental health experts, which
collectively reveals a picture of Mr. Landzo’s personality traits that contributes to
our consideration of appropriate sentence. Secondly, he had no proper military training or
instruction in how to comport himself in relation to detainees such as those in the
Celebici prison-camp. Thirdly, the harsh environment of the armed conflict as a whole, and
the events in the Konjic municipality in particular, must also be considered.
This armed conflict created an environment clearly not of Mr.
Landzo’s own choosing. His home town of Konjic was shelled over a continued period of
time in 1992, resulting in an atmosphere of constant fear of injury or death for himself
and his family, and it was also under a blockade such that living conditions became very
difficult. Many displaced persons were arriving in the town, having been expelled from
their own homes in other parts of Bosnia and Herzegovina, and the stories of their
mistreatment, and that of the Bosnian Muslim population in general, at the hands of the
Bosnian Serbs and Croats, were undoubtedly circulating. Additionally, among the casualties
of the conflict were persons close to Mr. Landzo. Given that the detainees in the Celebici
prison-camp were Bosnian Serbs who had been arrested upon the execution of military
operations by Bosnian government forces to break up pockets of resistance against the
lawful authorities in the municipality, along with Mr. Landzo’s immature and
impressionable state of mind, it is not surprising that he might identify these detainees
with the enemy that had inflicted this suffering and hardship upon himself, his family and
his fellow members of the population of Bosnia and Herzegovina.
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Document Style by Dr S D Stein