1 Friday, 24th March 2000
3 [The accused entered court]
4 --- Upon commencing at 9.04 a.m.
5 JUDGE MAY: This hearing is for the Appeals
6 Chamber to announce its judgement in this case and pass
8 Oral submissions were heard on the 9th of
9 February of this year. After hearing those
10 submissions, the Chamber dismissed the appellant's
11 appeal against convictions with reasons to be given
12 later, reserved judgements on the first two grounds of
13 the Prosecution's appeal, but allowed the Prosecution
14 appeal against sentence.
15 Two preliminary matters: First
16 Judge Robinson and Judge Wang have participated in the
17 hearing of the case, in deliberations, and in the
18 drafting of the judgement. Due to exceptional
19 circumstances, they cannot attend today's hearing. The
20 vice-president has made an order authorising today's
21 hearing in their absence.
22 Secondly, copies of the judgement, which is
23 in writing, will be made available by the registrar to
24 the parties. The statement I read today is not the
25 judgement of the Appeals Chamber but, according to the
1Tribunal's practice, a summary of it.
2 I deal first with the appellant's appeal. He
3 appeals on four grounds.
4 Ground one is that the Trial Chamber failed
5 to establish that the accused had discriminatory intent
6 which the appellant says is necessary to convict him
7 for the offences under Article 3 of the Statute of the
8 International Tribunal.
9 This ground of appeal is rejected. There is
10 nothing in the nature of the crimes falling within
11 Article 3 of the Statute, nor in the Statute generally,
12 which leads to a conclusion that such offences are
13 punishable only if they are committed with
14 discriminatory intent. The general requirements which
15 must be met for Prosecution of offences under Article 3
16 are identified by the Appeals Chamber in the Tadic
17 jurisdiction decision of October 1995. The relevant
18 violation of International Humanitarian Law must be
19 serious in the sense that it must constitute a breach
20 of a rule protecting important values and the breach
21 must involve grave consequences for the victim. This
22 in no way imports a requirement that the violation must
23 be committed with discriminatory intent.
24 There is nothing in the provisions of the
25 major international instruments which are encompassed
1 in Article 3 of the Statute to suggest that violations
2 must be accompanied by a discriminatory intent. The
3 language of Common Article 3(1)(c) of the Geneva
4 Conventions which is applicable, "without any adverse
5 distinction founded on race, colour, religion, or
6 faith, sex, birth or wealth or any other similar
7 criteria," does not restrict the acts prohibited by
8 that Article to acts committed with a discriminatory
9 motivation, nor is there evidence in customary
10 international law which would indicate the development
11 of such a restriction. In the opinion of this Chamber,
12 specific discriminatory intent is required only for the
13 international crimes of persecution and genocide.
14 For these reasons, the Chamber finds that a
15 discriminatory intent or motive is not an element of
16 offences under Article 3 of the Statute, nor of the
17 offence of outrages upon personal dignity. This ground
18 of appeal accordingly fails.
19 Ground two: This ground consists of two
20 parts: (1) that the conduct proved, in particular the
21 violence against the detainees, was not sufficiently
22 grave as to warrant conviction under Article 3 of the
23 Statute; (2) that the appellant's conduct may have been
24 justified by necessity.
25 During the oral hearing, counsel for the
1 appellant appeared to abandon the first of these
2 parts. Nevertheless, the Chamber has considered
3 whether the appellant's conduct was serious enough to
4 constitute a violation of Article 3 of the Statute.
5 The Appeals Chamber can find no reason to
6 doubt the seriousness of these crimes. The victims
7 endured physical and psychological abuse and outrages
8 upon personal dignity.
9 Secondly, the appellant submits that the
10 defence of extreme necessity is applicable because he
11 had attempted to protect the civilians from exposure to
12 greater harm outside the Kaonik facility by detaining
13 them. It is doubtful whether this defence was raised
14 during the trial, and the Appeals Chamber considers
15 that in general, accused before this Tribunal have to
16 raise all possible defences during the trial and cannot
17 raise a defence for the first time on appeal. However,
18 this Chamber has considered whether such a defence was
19 available to the appellant.
20 The Chamber is of the view that this ground
21 of appeal is entirely misconceived. The appellant does
22 not and cannot argue, in the present case, that he was
23 faced with only two options, namely, mistreating the
24 detainees or freeing them. The appellant, faced with
25 the actual choice of ill-treating the detainees or not,
1 was convicted of choosing the former. This ground of
2 appeal thus fails.
3 Ground three: The appellant submits that the
4 Prosecution has not proved beyond reasonable doubt that
5 the alleged outrages upon personal dignity occurred.
6 In particular, he challenges the Trial Chamber's
7 reliance on subjective witness testimony in the absence
8 of medical reports or expert evidence.
9 The Appeals Chamber finds that neither the
10 statute nor the rules oblige the Trial Chamber to
11 require medical reports or other scientific evidence as
12 proof of a material fact. Similarly, the testimony of
13 a single witness on a material fact does not require,
14 as a matter of law, any corroboration. The Trial
15 Chamber is the best place to hear, assess, and weigh
16 the evidence, including witness testimonies presented
17 at trial. It is for a Trial Chamber to consider
18 whether a witness is reliable and whether the evidence
19 presented is credible.
20 The Appeals Chamber, therefore, has to give a
21 margin of deference to the Trial Chamber's evaluation
22 of the evidence presented at trial. The Appeals
23 Chamber may overturn the Trial Chamber's finding of
24 fact only where the evidence relied on could not have
25 been accepted by any reasonable Tribunal or where the
1 evaluation of the evidence is wholly erroneous.
2 The Appeals Chamber is satisfied that the
3 Trial Chamber did not err in the exercise of its
4 discretion when it evaluated the testimony of the
5 various witnesses. The Trial Chamber accepted such
6 testimony as sufficient and credible, as it was
7 entitled to do. The Trial Chamber, therefore, applied
8 the standard of proof correctly. This ground of appeal
10 Ground four: The appellant submits that the
11 Trial Chamber erred in the application of Article 7(3)
12 of the Statute. The appellant contests the Trial
13 Chamber's findings that he had factual authority over
14 the guards and that he failed to report them to
15 superior authorities. He submits that he lacked
16 control over the HVO military police and that his role
17 was purely administrative and representative and of a
18 civilian nature.
19 This ground of appeal is essentially one of
20 fact. The Appeals Chamber finds that it does not
21 matter whether the appellant was a civilian or a
22 military superior. What must be proved is that he had
23 the powers to prevent or punish crimes in terms of
24 Article 7(3). The Trial Chamber indeed found that he
25 had such powers and concluded that he was a superior,
1 pursuant to Article 7(3).
2 Unless there is good reason to believe that
3 the Trial Chamber has drawn unreasonable inferences
4 from the evidence, it is not open to the Appeals
5 Chamber to disturb the factual conclusions of the Trial
6 Chamber. In this case, the appellant has failed to
7 convince the Chamber that unreasonable conclusions were
8 drawn by the Trial Chamber in this respect. This
9 ground must fail for lack of merit.
10 I now turn to the Prosecution's appeal, which
11 consists of three grounds:
12 Ground 1. The Prosecution submits that the
13 Trial Chamber, in acquitting the appellant on Counts 8
14 and 9 erred in its application of Article 2 of the
15 Statute, for these reasons:
16 (1) The Trial Chamber applied the wrong legal
17 test to determine whether the armed conflict in the
18 present case was international. The Prosecution
19 submits that the correct test is the "overall control
20 test," as set out in the judgement of the Appeals
21 Chamber in Tadic of July 1999.
22 (2) The Trial Chamber erred in applying a
23 strict nationality requirement to determine whether the
24 victims were protected persons within the meaning of
25 Article 4 of Geneva Convention IV. The Prosecution
1 submits that both requirements for the application of
2 Article 2 of the statute are in fact met in this case.
3 It submits that the criminal liability of the appellant
4 under Counts 8 and 9 can be established on the basis of
5 the trial record, because it arises out of the same
6 factual allegations as Count 10, on which the appellant
7 was convicted by the Trial Chamber.
8 The first question is whether the Appeals
9 Chamber is bound by its previous decision in Tadic.
10 The Chamber recognises that in both the common law and
11 civil law systems, the highest courts, whether as a
12 matter of doctrine or of practice, will normally follow
13 their previous decisions, and will only depart from
14 them in exceptional circumstances. This is to preserve
15 the principles of consistency, certainty, and
16 predictability. The need to preserve those principles
17 is particularly great in criminal law, where the
18 liberty of the individual is implicated.
19 The same principles apply in international
20 tribunals. The fundamental purpose of this Tribunal is
21 the prosecution of persons responsible for serious
22 violations of international humanitarian law. The
23 Appeals Chamber considers that this purpose is best
24 served by an approach which, while recognising the need
25 for certainty, stability, and predictability, also
1 recognises that there may be instances in which the
2 strict absolute application of that principle may lead
3 to injustice.
4 The Chamber therefore concludes that a proper
5 construction of the statute, taking due account of its
6 text and purpose, yields the following conclusion:
7 In the interests of certainty and
8 predictability, the Appeals Chamber should follow its
9 previous decisions but should be free to depart from
10 them for cogent reasons in the interests of justice.
11 It is necessary to stress that the normal rule is that
12 previous decisions are to be followed and departure
13 from them is the exception. The Appeals Chamber will
14 thus follow its findings on Article 2 in the Tadic
15 judgement, since, after careful analysis, it is unable
16 to find any compelling reason to a depart from it.
17 The "overall control test" set out in the
18 Appeals Chamber Tadic decision is the applicable law.
19 The test provides greater protection for civilian
20 victims of armed conflict and is wholly consistent with
21 the fundamental purpose of Geneva Convention IV; that
22 is, to ensure protection of civilians to the maximum
23 extent possible.
24 In the instant case, the Appeals Chamber
25 finds that the Trial Chamber failed to apply the
1 correct test. The Appeals Chamber also accepts the
2 Prosecution's submission that if the conflict in this
3 case is characterised as international, it follows that
4 the victims were protected persons under Article 4 of
5 Geneva Convention IV.
6 However, Article 4 may also be given a wider
7 construction so that a person may be accorded protected
8 status, notwithstanding the fact that he is of the same
9 nationality as his captors. This extended application
10 of Article 4 is particularly apposite in the context of
11 the present-day inter-ethnic conflicts. In the instant
12 case, the Appeals Chamber finds that the Trial Chamber
13 erred in its conclusion that the victims were not
14 protected persons.
15 As a result of these findings, the Appeals
16 Chamber has considered whether it should reverse the
17 acquittals on Counts 8 and 9. The Chamber has come to
18 the conclusion that no useful purpose would be served
19 in doing so. This is because:
20 (1) The substantive issues for determination
21 on this ground are questions of law rather than fact.
22 (2) The acts underlying these counts of Count
23 10 are the same. Therefore, any additional sentence
24 imposed would be concurrent on all counts, and would
25 thus not lead to any increase in sentence.
1 Accordingly, the Appeals Chamber will not remit the
2 case to the Trial Chamber for re-examination and it
3 declines to reverse the acquittals.
4 Ground 2: The Prosecution submits that the
5 Trial Chamber failed to deal with part of its case in
6 support of Count 10; namely, that the outrages on
7 personal dignity, constituted by physical and
8 psychological harm, took place not only inside the
9 compound but also outside it, where the prisoners
10 worked under the control of the HVO.
11 During the trial, considerable evidence was
12 given by prisoners of mistreatment while digging
13 trenches outside the compound. Indeed, the Defence did
14 not dispute that such mistreatment took place. The
15 Trial Chamber found that the accused was aware of such
16 mistreatment but declined to find him responsible for
17 it, although it did find that he aided and abetted
18 forced labour and use of prisoners as human shields
19 outside the prison.
20 The Appeals Chamber accepts that the only
21 finding which could have reasonably been made by the
22 Trial Chamber in the light of its other findings was
23 that the appellant was responsible for the mistreatment
24 by the HVO outside the prison. The Appeals Chamber
25 thus finds the appellant guilty of aiding and abetting
1 the mistreatment by the HVO outside the prison.
2 This finding does not alter the verdict of
3 guilty entered by the Trial Chamber on Count 10. The
4 additional finding is strictly a matter to be taken
5 into account when the Appeals Chamber comes to impose a
6 new sentence for Count 10. But in view of its limited
7 nature, the Appeals Chamber does not consider that the
8 additional finding of itself warrants any heavier
10 Ground 3: The Prosecution submits that the
11 Trial Chamber erred in imposing a sentence of two and a
12 half years on the appellant, arguing that the sentence
13 is manifestly disproportionate to the crimes
14 committed. Having considered the submissions and all
15 the circumstances of the case, the Appeals Chamber has
16 come to the conclusion that the Trial Chamber erred in
17 its imposition of sentence. In particular, the Appeals
18 Chamber finds that the Trial Chamber erred in not
19 having sufficient regard to the gravity of the conduct
20 of the appellant, for the following reasons:
21 His offences were not trivial. Instead of
22 preventing it, the appellant, as a superior, involved
23 himself in violence against those whom he should have
24 been protecting and allowed them to be subjected to
25 psychological terror. He also failed to punish those
1 responsible. Most seriously, the appellant, by
2 participating in the selection of detainees to be used
3 as human shields and for trench-digging, as he must
4 have known, was putting at risk of lives of those
5 entrusted to his custody. With his direct
6 participation as a commander, he provided additional
7 encouragement to his subordinates to commit similar
8 acts. The combination of these factors should,
9 therefore, have resulted in a longer sentence and
10 should certainly not have provided grounds for
12 While the Appeals Chamber accepts the
13 Prosecution's submission on the general importance of
14 deterrence as a consideration in sentencing for
15 international crimes, it concurs with the Appeals
16 Chamber's statement in Tadic that "this factor must not
17 be accorded undue prominence in the overall assessment
18 of the sentences to be imposed on persons convicted by
19 the International Tribunal." An equally important
20 factor is retribution. This is not to be understood as
21 fulfilling a desire for revenge but as duly expressing
22 the outrage of the International Community at these
24 The Appeals Chamber is satisfied that the
25 Trial Chamber was in error in sentencing the appellant
1 to two and a half years imprisonment. The question
2 then arises whether the Appeals Chamber should review
3 the sentence. Appellate review of sentencing is
4 available in the major legal systems but is usually
5 exercised sparingly. In Tadic, the Appeals Chamber
6 held that it should not intervene in the exercise of
7 the Trial Chamber's discretion with regard to sentence
8 unless there is a discernible error.
9 In applying that test to the instant case,
10 the Appeals Chamber finds that there was a discernible
11 error in the Trial Chamber's exercise of discretion in
12 imposing sentence. That error consisted of giving
13 insufficient weight to the gravity of the conduct of
14 the appellant and failing to treat his position as
15 Commander as an aggravating feature in relation to his
16 responsibility under Article 7(1) of the Statute. The
17 sentence imposed by the Trial Chamber was manifestly
19 In imposing a revised sentence, the Appeals
20 Chamber bears in mind the element of double jeopardy in
21 this process in that the appellant has had to appear
22 for sentence twice for the same conduct, suffering the
23 consequent anxiety and distress and also that he has
24 been detained a second time after a period of release
25 of nine months. Had it not been for these factors, the
1 sentence would have been considerably longer.
2 For these reasons, the Appeals Chamber
3 unanimously denies the appellant's four grounds of
4 appeal against judgement; allows in part the
5 Prosecution's first ground of appeal, but declines to
6 reverse the acquittals on Counts 8 and 9; allows the
7 Prosecution's second ground of appeal; allows the
8 Prosecution's third ground of appeal and revises the
9 sentence the appellant received at trial.
10 Zlatko Aleksovski, stand up.
11 [The accused stands]
12 JUDGE MAY:
13 Zlatko Aleksovski, the sentence on you will
14 be one of seven years imprisonment with deduction
15 therefrom of three years and 12 days for the time
16 served in detention.
17 The Chamber directs that the imprisonment be
18 served in a state to be designated by the International
19 Tribunal in accordance with Article 27 of the Statute
20 and Rule 103 of the rules.
21 The Court will rise.
22 --- Whereupon the hearing adjourned at
23 9.34 a.m.