1 Friday, 23
2 [Appeal Proceedings]
3 [Open session]
4 [The appellant entered court]
5 --- Upon commencing at 9.33 a.m.
6 JUDGE SHAHABUDDEEN: Madam Registrar.
7 THE REGISTRAR: Case number IT-95-10-A, the Prosecutor versus
8 Goran Jelisic.
9 JUDGE SHAHABUDDEEN: Now, the appearances are as before. The
10 proceedings continue. We now have before us the cross-appeal.
11 Ready, Mr. Clegg?
12 MR. CLEGG: Ready.
13 Can I indicate to the Chamber that Mr. Babic will be relieving me
14 of some of the burden this morning, and we are dividing our submissions
15 into two halves so far as sentence is concerned.
16 The Court will have observed that the appellant's brief
17 concentrated on the conduct of the trial Judge both during the course of
18 the trial on genocide, where verdicts were returned in favour of the
19 accused, and also during the protracted sentence hearings, when a large
20 number of witnesses were called to the effect that, prior to the conflict
21 in the former Yugoslavia, the appellant had exhibited no signs of racial
22 prejudice against Muslims and had ongoing good relations with a number of
23 people from that faith.
24 We, of course, rely upon the evidence that was called during the
25 sentencing hearing to establish those two facts, but I do not press today
1 the criticism of the trial Judge during the hearing on genocide because,
2 of course, that was a trial in which none of the offences for which he was
3 being sentenced were being examined by the Trial Chamber.
4 The position so far as the facts that gave rise to the pleas of
5 guilty before the Trial Chamber is that, following lengthy consideration
6 by both parties, an agreed statement of facts was arrived at. It was
7 incorporated into an amended indictment and the appellant pleaded guilty
8 on that basis.
9 I am confident that this Appeals Chamber will deal with his
10 sentence on the basis of those agreed facts and on no other basis.
11 Obviously, he cannot be prejudiced as a result of the fact that he stood
12 trial for another offence of which he was acquitted. The basis on which
13 he pleaded guilty, having been agreed between the parties, must remain the
14 basis upon which he was sentenced.
15 It is our submission that the sentence passed of 40 years'
16 imprisonment is excessive. The primary ground of appeal is that the Trial
17 Chamber did not give sufficient attention to the need to develop a range
18 of sentences based upon the relative position of the accused. The
19 judgement of the Trial Chamber was given in December of 1999. It did
20 therefore not have the benefit of the opinion of the Appeal Chamber
21 delivered the following month in January 2000 in the appeal of Dusko
23 The Appeal Chamber in the Tadic case reduced the sentence of Tadic
24 to one of 20 years, and the basis upon which the sentence was so reduced
25 was primarily upon the second ground advanced by the appellant, namely, an
1 error committed by the Trial Chamber with respect to the need to develop a
2 range of sentences based upon the relative position of an accused. And we
3 would commend to the Court pages 23, 24, and 25 of the Tadic Sentencing
4 Judgement. At paragraph 55, the Appeal Chamber came to the considered
5 opinion that the sentence passed failed to adequately consider the need
6 for sentences to reflect the significance of the role of the appellant in
7 the broader context of the conflict in the former Yugoslavia.
8 It is our submission that had the Trial Chamber in the instant
9 case had the benefit of considering the Appeal Chamber's views in the
10 Tadic case, that it would not and could not have passed the sentence that
11 it did of 40 years' imprisonment.
12 A study of the facts, in our submission, reveals nothing to choose
13 between the two cases. Each involved the commission of a number of
14 murders against victims of a different ethnic background or religion. The
15 number and type of murders in both cases was broadly similar. They
16 included in each case the brutal execution of helpless victims, and the
17 Court will remember, some of the Court I know will remember, the two
18 convictions of Tadic for killing the two policemen by slitting their
19 throats in the village that he and others had taken during the course of
20 that conflict.
21 His, Tadic's, guilt embraced not only ethnic cleansing of more
22 than one village, but also, of course, his cruel mistreatment of victims
23 in a detention camp, cruelty that would justify all of the well-deserved
24 adjectives applied to the actions of Jelisic in the instant case. If
25 anything, the cruelty in the Tadic case was worse, embracing a degree of
1 sado-sexual mistreatment, including the biting off of a man's testicle.
2 We would submit that on any broad comparison of the facts of the
3 two cases that there can be little to choose between them. Neither had a
4 command position. They were both, in every sense, men of low position in
5 the broader context of the conflict. Neither were commanders or
6 architects of the strategy of ethnic cleansing. Of course, each was a
7 willing executioner. One of the facts that emerges from any study of war
8 crimes, both contemporary and historical, is that it is within the
9 capacity of all to act as camp guards and executioners, and one has only
10 to reflect on the ill-treatment that occurred in the Second World War of
11 camp detainees throughout Europe to see powerful evidence of that. The
12 fact that both these men were willing, if not enthusiastic, in their
13 ill-treatment of detainees, sadly, in the history of war crimes, is not
14 either remarkable or unusual.
15 The fact remains that neither were in a command position; neither
16 were the architects of the strategy of ethnic cleansing. Both were, in
17 truth, foot soldiers, not in positions of command. Of course, positions
18 of power over those that were detained. Every camp guard is in a position
19 of power, but that is different from a position of command.
20 The sentences are a stark contrast. Tadic, a man of mature years
21 who pleaded not guilty and contested the case vehemently throughout
22 received an ultimate total sentence of 20 years. Jelisic, a young man in
23 his early 20s who pleaded guilty at the very outset, received twice that
24 figure of 40 years.
25 Whilst I am not praying in aid the psychological problems of
1 Jelisic in a way that would significantly mitigate his conduct, it is a
2 fact that he did suffer a severe personality disorder. No such excuse
3 existed in the Tadic case for his conduct.
4 The aggravating features identified in the Jelisic case by the
5 Trial Chamber all existed in the Tadic case. There is nothing, we submit,
6 in truth to distinguish one case from the other.
7 Now, it is our respectful submission that it be of vital
8 importance to the ongoing reputation of this Court that consistent
9 sentences are passed for broadly similar conduct. Nothing will bring a
10 criminal justice system more into disrepute than the appearance that its
11 decisions are capricious, inconsistent, or driven by personal dislike of
12 an individual.
13 Of course, in a sense, anyone who had to listen to the evidence on
14 the genocide trial may unconsciously have been influenced against the
15 defendant Jelisic when it came to sentence him for what he, in fact,
16 admitted, which, so far as the indictment is concerned, involved some 12
17 murders and other offences of ill-treatment.
18 It is not just the Tadic Judgement upon which we rely to
19 demonstrate what we submit is an inconsistent approach by the Trial
20 Chamber in this court. The written brief submitted on the appellant's
21 behalf analyses the case of Erdemovic, which Mr. Babic had the advantage
22 of appearing in. I don't intend to repeat all that he has written about
23 that case in the brief. Repetition does not advance any point submitted
24 to this Trial Chamber, but we commend what he has said.
25 Other decisions both here and in Rwanda also highlight the
1 contrast identified by an analysis of the Tadic Judgement. In the Rwanda
2 case of Serushago and the Prosecutor, judgement again being given after
3 the judgement in this case and therefore not a case that the Trial Chamber
4 would have been able to consider when deciding where, in the broad range
5 of sentences, it was right to position an appellant here, a sentence of 15
6 years' imprisonment for genocide was upheld by the Appeal Chamber. That
7 embraced crimes against humanity, murder, extermination, and torture,
8 killing vastly more people than ever lost their life in this part of the
9 former Yugoslavia, let alone justifying any comparison with the numbers in
10 fact killed by Jelisic. In the Serushago case, over 300 victims were
11 killed in just one incident. He, Serushago, of course, was in a position
12 of command, quite different from that of Jelisic.
13 In giving judgement, this Appeal Chamber, in considering the
14 sentence of 15 years' imprisonment for genocide in that case, said at
15 paragraph 33 of the judgement that it was "within the discretionary
16 framework" of the Trial Chamber to pass such a sentence.
17 What we ask rhetorically, that if that be right, as we submit it
18 was, that 15 years was within the discretionary framework for the crime of
19 genocide when hundreds of thousands have been killed as a consequence of
20 the actions of somebody who held a position of command, then how, we say
21 rhetorically, can a sentence of 40 years in this case be justified? There
22 is, in truth, no fair comparison to be made.
23 In the Kayishema and Ruzindena Judgement, another Rwandan case,
24 the Court had to consider what was described as planned, instigated,
25 ordered, widespread killings on a vast scale. Both men were guilty of
1 genocide. The Court distinguished between them on the basis of their
3 Ruzindena, at paragraph 543 of the judgement, was described in the
4 following manner: "as someone who played a leadership role in the
5 systematic pattern of the extermination of the Tutsis who had sought
6 refuge in the area of Besaro. He led attacks on them where thousands were
8 And I quote from the judgement, at paragraph 542, the following
9 words: "They were killed regardless of gender or age. Men and women, old
10 and young, were killed without mercy. Children were massacred before
11 their parents' eyes; women raped in front of their families. No Tutsi was
12 spared, neither the weak nor the pregnant."
13 For planning and putting into operation that genocide, the
14 sentence of 25 years' imprisonment was passed on Ruzindena.
15 Moving to the former Yugoslavia, the Celebici case is also
16 instructive. Mucic was the commander of the camp; he was sentenced to
17 seven years for murder and cruel treatment. Delic, 20 years, murder,
18 torture, wilfully causing great suffering and serious bodily harm.
19 Landzo, a young man, I think but 23, 15 years for murder, torture, and
21 A quote from the Court's description of him is perhaps relevant
22 when looking at the adjectives properly described to the conduct of
23 Jelisic in this case. Of Landzo, who received a sentence of 15 years, the
24 Tribunal said: "The nature of his crimes is suggestive of significant
25 imagination and a perverse pleasure in the infliction of pain and
2 It's not attractive to try to choose adjectives to describe the
3 type of conduct that this Court and the Tribunal in Rwanda has to sit in
4 judgement over. There is, in truth, no adjectives available in any
5 language of the world to properly describe and condemn the conduct these
6 Courts need to deal with. In fact, the only guide to sentence in such a
7 case must be, we submit, the guidance of other cases and the development
8 of a tariff that ensures that there is a just disposition of cases, one
9 weighed against the other.
10 This Court I know is conscious of the fact that it is not just, of
11 course, the punishment of the crimes that is relevant, but the role that
12 the Court needs to play in the ultimate rehabilitation of the area of
13 Europe where this conflict has been fought over.
14 Moving on to the Blaskic case. Here the Court had to deal with a
15 commander, a decision-maker near the very top of the chain of command, a
16 General under whose command vast numbers of people were killed. It was
17 accepted by the Tribunal that he ordered the widespread extermination of
18 Muslims, including the massacre at Ahmici, but not confined to it. The
19 Trial Chamber described that massacre in these words: "A carefully
20 prepared attack, many Muslim children, women, and adults were
21 systematically murdered, sometimes burnt alive in their home, houses
22 plundered and set alight, mosques and religious buildings destroyed."
23 In the Kupreskic case there were six defendants. It also, of
24 course, involved the massacre at Ahmici on the 16th of April 1993 when 116
25 people were killed in the attack that I have just described. The Court in
1 that case said that the village of Ahmici had gone down in history as
2 comprising one of the most vicious illustrations of man's inhumanity to
3 man, and compared the name of the village in the same sentence as that of
4 Dachau and My Lai.
5 The sentences passed for those actively involved in that attack,
6 Zoran Kupreskic, eight years; his brother, Vlatko, six years; Papic, 15;
7 Santic, who was the commander of the company, 25 years.
8 It's against that background that we submit that the sentence here
9 of 40 years is significantly out of step with other sentences passed by
10 both this Tribunal and that dealing with crimes in Rwanda. In applying
11 the passage that I've already alluded to in the Tadic Judgement, we would
12 submit that it falls significantly outside the range of sentences that
13 has, since judgement was passed, developed more clearly, perhaps, than it
14 had before.
15 When compared with the Tadic case, we say that there are very
16 broad similarities, and we bluntly and boldly submit to the Appeal Chamber
17 that if the proper sentence in Tadic was one of 20 years, then we submit
18 that there could be no justification on a comparable basis for passing any
19 longer sentence in the instant appeal.
20 May I say a few words about rank. Jelisic did not hold any rank.
21 He was not a commander. His plea was accepted on that basis, and in our
22 submission, he must stand to be dealt with in accordance with that agreed
24 When he was first arraigned before the Court, his first indictment
25 at page 10 alleged that during most of May of 1992, he acted as commander
1 of Luka camp. That was a matter that was the subject of dispute by him,
2 and the words were deleted by agreement from the agreed statement of facts
3 that formed the basis of his plea. Once those pleas were accepted, the
4 Court, in our submission, cannot go behind that agreed position.
5 Against that background, paragraph 95 of the judgement is
6 unfortunately phrased. It begins with the following words: "It has also
7 not been established beyond all reasonable doubt whether the accused
8 killed at Luka camp under orders. Goran Jelisic allegedly presented
9 himself to the detainees as the Luka camp commander"; and concludes, "The
10 Trial Chamber does not doubt that the accused exercised a de facto
11 authority over the staff and detainees at the camp."
12 The position, in truth, is that the allegation that he was in
13 command had been expressly deleted from the agreed factual basis upon
14 which he tendered his pleas. What this paragraph, I submit, probably
15 identifies and is alluding to is that everybody who is at a camp such as
16 that in a guard role has a position of power over the detainees that
17 Jelisic, as others in the past have, abused. And of course, somebody with
18 a position of power will be viewed as having the power to command by those
19 over whom he exercises that power. It is a perfectly natural, human
21 It does not mean in fact, of course, that he is the commander of
22 the camp in the sense that he is ordering and directing the ill-treatment
23 and murder of detainees over and above that which he is personally
24 responsible for. And indeed, of course, the charges to which he pled only
25 relate to his own physical acts of murder and ill-treatment, and he did
12 Blank page inserted to ensure pagination corresponds between the French
13 and English transcripts.
1 not fall to be sentenced upon the basis of what others may have done in
2 the same institution on some other occasion.
3 In our submission, the distinction between someone who is in a
4 position of command has been recognised consistently by this Court when
5 the Court has moved to consider sentence. This man must be dealt with on
6 the basis that he had no rank.
7 May I move now to consider his plea of guilty. In our submission,
8 that ought to attract a discount in sentence. It is a plea of guilty that
9 he tendered against the advice of his then lawyers who advised him,
10 wrongly I would submit, that he had a proper defence to the allegation of
11 crimes against humanity. But in the face of the advice of his own
12 lawyers, he tendered the pleas that he did.
13 A plea of guilty in most jurisdictions of the world will attract a
14 discount in sentence. The reasons are, in part, pragmatic because most
15 criminal justice systems can only survive where a significant number of
16 people do admit their guilt; otherwise, the systems of justice throughout
17 the world would collapse under the weight of work. The whole philosophy
18 behind plea bargaining in the United States of America is primarily
20 In our submission, this Chamber as well ought to send out a signal
21 to those who are in detention and those who await arrest that pleas of
22 guilty will attract a discount in sentence, particularly perhaps when
23 tendered against the advice of trial counsel.
24 A plea of guilty, of course, is separate from remorse. A plea of
25 guilty may be tendered for pragmatic reasons, just as a discount for
1 sentence may be given for pragmatic reasons. It does not follow that a
2 man who pleads guilty has remorse; of course I accept that.
3 It is always difficult in a common law jurisdiction for a
4 defendant to convince a court that he does have remorse. Here in this
5 trial, the defendant was, I almost said, denied the opportunity of giving
6 evidence in the trial. He never had an opportunity because the trial
7 ended at the end of the Prosecution case. So the Court never had, in
8 fact, the opportunity to judge him themselves through sworn testimony. In
9 many ways, it's difficult to believe that somebody who acted in the way
10 that he did could have remorse.
11 But we do submit that the Trial Chamber misdirected itself as to
12 the burden that the accused had to discharge in order to convince them
13 that he had remorse. It's at paragraph 127 of the judgement where, we
14 submit, the Trial Chamber fell into error.
15 The first sentence reads: "The Trial Chamber is not convinced
16 that the remorse which Goran Jelisic allegedly expressed to the expert
17 psychiatrist was sincere."
18 I venture to suggest that in the vast majority of cases, both
19 internationally and nationally, a court can very rarely be convinced of
20 someone's remorse. Everyone is going to express remorse when they admit
21 crime, or, at any rate, almost everyone. It's not, we submit, for a
22 defendant to have to satisfy the Court that his remorse is genuine. We
23 would respectfully submit that in circumstances such as those that existed
24 here, a Trial Chamber ought to accept expressions of remorse that were
25 accepted as sincere by an expert psychiatrist unless it was convinced that
1 the expressions of remorse were false.
2 We would, with respect, as it were, reverse the evidential
3 approach of the Trial Chamber at paragraph 127.
4 The position before the Trial Chamber was that remorse was
5 expressed in the traditional way it is done in common law jurisdictions;
6 namely, through the mouth of his advocate, through his pleas of guilty to
7 the indictment, through his admission, despite the absence of evidence, of
8 three murders that he had not been indicted for, through the extensive
9 interviews that he willingly gave to the investigators, and the evidence
10 of the witnesses, in particular DQ, DF, and DA, to which reference is made
11 in the written brief.
12 Finally, for the matters that I intend to cover before I hand the
13 floor to Mr. Babic, there is the question of his youth. He was but 23
14 years old at the time he committed these crimes. No defence, of course.
15 But this Tribunal has consistently accepted youth as mitigation. In the
16 Landzo case it did, when he was 19; in Erdemovic, when he was 23; and in
17 Furundzija, when he was also 23.
18 I quote from the footnote 1696 in the Blaskic Judgement, at page
19 255, the following words:
20 "The ICTY considers accused aged between 19 and 23 at the time of
21 the facts as being young." And youth, in the Blaskic Judgement at that
22 page, was expressly identified as a mitigating circumstance.
23 Indeed, the Trial Chamber itself clearly hoped that with
24 appropriate medical and psychiatric assistance during the prison sentence
25 Jelisic will inevitably serve, he will be able to be rehabilitated, as
1 they recommended that he undergo psychological and psychiatric treatment
2 in whichever host country accepts him as a prisoner.
3 Those are the submissions that I advance on behalf of the
4 appellant. I'd now ask for Mr. Babic to address the Court on the
5 remaining grounds.
6 JUDGE POCAR: Mr. Clegg, may I have a clarification from you.
7 During your arguments, you mentioned that the Trial Chamber may have been
8 influenced by the evidence heard during the trial on genocide in deciding
9 the sentence to be imposed for the crimes to which Mr. Jelisic pleaded
11 Can you clarify one matter to me, whether it is your position that
12 the Trial Chamber should not have taken into account such evidence, and
13 that if it did so, it may have incurred an error either of law or of fact,
14 or both possibly, that the Appeal Chamber should take into account and
15 consider under Article 25 of the Statute. I would like to know which is
16 your position in this respect.
17 MR. CLEGG: Certainly. The crime of genocide and the trial of
18 genocide embraced facts far greater than he had pleaded guilty to.
19 Insofar as the evidence before the Trial Chamber dealt with the counts on
20 the indictment to which he had pleaded, then I would accept that the Trial
21 Chamber could consider that evidence, but I would submit it should do so
22 cautiously because it was not being cross-examined as to mitigation but
23 being cross-examined solely as to its applicability to the allegation of
24 genocide. But I concede the Trial Chamber could look at the evidence, as
25 it were, on the individual counts.
1 But the evidence before the Trial Chamber on the genocide trial
2 went far wider than the agreed facts, and indeed, went behind the agreed
3 facts by asserting a factual position that had expressly been abandoned at
4 the time of plea. The Trial Chamber ought not to be influenced by any of
5 that evidence but should be confined to the agreed facts.
6 Just an illustration is the fact that there was an allegation that
7 he was the camp commander. Now, although that was abandoned by the
8 Prosecution in the agreed statement of facts and his plea was accepted on
9 that basis, when giving evidence, witnesses, of course, spoke of him as
10 the camp commander.
11 Now, the Trial Chamber would not be entitled to sentence him on
12 the basis of that evidence, that he held a position of command, because
13 that would go behind the agreed factual basis upon which his plea had been
14 tendered. But insofar as they might describe an act of cruelty to which
15 he had pleaded, then in considering how he committed the actual offence to
16 which he pleaded, then they could have recourse to that.
17 So I don't know if that answers the question that I've been
18 posed. I'm grateful.
19 JUDGE WALD: Mr. Clegg, following, following up on that, can you
20 give us a little more information on whether or not the position you have
21 just espoused you think is a majority, a plurality, a universal norm? I'm
22 sure you're familiar with the departure from that in the case of the
23 United States where the Supreme Court has actually said that evidence and
24 the fact of an acquittal in one count, or even in one crime, may be taken
25 into consideration in the sentencing for other crimes. A controversial,
1 admittedly, a holding, but nonetheless a holding.
2 So I wonder if your answer to Judge Pocar could be elaborated on,
3 whether or not you think your position is one that's more universal, say,
4 than the one I have just set out.
5 MR. CLEGG: Well, I would respectfully submit that the one I have
6 just expounded is more universal. It would be the only approach that
7 would be consistent with the European convention on human rights because
8 there could be, we would submit, no fair trial under Article 5 or 6 of the
9 convention if the Court were to consider, as it were, to go behind, an
10 agreed statement of facts upon which a plea was tendered.
11 That would certainly be my submission under European law. I
12 anticipate this in most common law jurisdictions, the position that I have
13 just expounded is the basis upon which the Court would approach sentence.
14 It would be honest of me to confess that I didn't have the
15 judgement of the American Supreme Court at the forefront of my mind this
16 morning when I was addressing the Chamber. It does seem on the face of it
17 a judgement would have difficulty in surviving in the European Court.
18 I don't know if I can assist any more.
19 JUDGE SHAHABUDDEEN: Mr. Clegg, I think all jurists would respond
20 positively to your main submission that a Court should not suffer itself
21 to appear to be acting capriciously, but also I take it you accept,
22 basically, sentence depends on the Court's view of the facts of each case.
23 I understand you to be saying, yes, the Court has a discretion in
24 sentencing, but that that discretion has to be exercised with reference to
25 discernible principles of law. And your analysis of the various cases
1 leads you to extract from them a principle which says, roughly, that
2 sentences should lie within a certain range. Maybe an undefining range,
3 but a discernible one. So that wide as the discretion is, if the
4 discretion is not exercised with reference to that principle of law which
5 you submit can be extracted from the various cases, then the sentence is
6 wrong, decision is wrong.
7 But tell me this: Narrow as that range may be, does it exclude,
8 for example, the competence of the Court to impose a life sentence, and
9 has the Court in fact imposed a life sentence, I think, in the case of the
10 Rwanda Tribunal?
11 MR. CLEGG: It in no way precludes a life sentence being passed in
12 an appropriate case. The life sentence in genocide was, I think, passed
13 for an offence -- the life sentence to which you allude was for an offence
14 of genocide, and the defendant was, I think, either the prime minister or
15 certainly a very senior government official who was orchestrating the
16 extermination of tens or thousands of Tutsis. I would not suggest for one
17 moment that a life sentence in such circumstances was outside any range of
18 sentencing. Indeed, where the Rules of the Tribunal expressly make
19 provision for the sentence -- for a life sentence, it follows that in an
20 appropriate case a life sentence will be appropriate. But it must, of
21 course, be reserved for the most heinous of crimes, and we would submit
22 that in practice, it will probably be reserved for those who commanded and
23 orchestrated genocide.
24 I hope that deals --
25 JUDGE SHAHABUDDEEN: You have dealt with the part. I understand
1 you to be saying that for cases of this type, there is a certain range of
2 sentences --
3 MR. CLEGG: Yes.
4 JUDGE SHAHABUDDEEN: -- and that the sentence imposed was outside
5 of the applicable range. Is that your position?
6 MR. CLEGG: That is our position.
7 JUDGE SHAHABUDDEEN: Thank you, thank you.
8 MR. CLEGG: And indeed, 40 years is getting very near a life
9 sentence when one works out what the average life expectancy of a man his
10 age is.
11 JUDGE SHAHABUDDEEN: Any more questions. Thank you, then,
12 Mr. Clegg. Mr. Babic, you have the floor.
13 MR. BABIC: [Interpretation] Your Honours, I am, in a sense,
14 continuing the Defence, as the Prosecutor yesterday said that he was
15 continuing the Prosecution. I have no intention of using that position in
16 the way that Mr. Nice did, by making certain statements which are not
17 grounded in the brief or to encourage certain thinking by the Trial
18 Chamber at the expense of the accused.
19 What I have in mind is the reference to 2.000 dead as being
20 undisputed even though it is clearly in dispute, and also reference by
21 Mr. Nice to certain evidence that has not been proven. I would appeal to
22 Your Honours to bear that in mind when reviewing this case.
23 Mr. Nice also referred to a list given to the guards and the
24 prison administration, saying that all those people were killed, which is
25 also not correct, because in the proceedings, they were proven to be alive
1 and certain documents confirmed that.
2 He also referred to testimony by IBNR, the statement of witness
3 Ralston -- the statement by witness Ralston, and let me just say that he
4 stated that throughout Bosnia-Herzegovina, a total of 3.000 civilians had
5 been killed in Bosnia - 3.000 civilians. So this cannot be the kind of
6 evidence that Mr. Nice described it as being.
7 I would just like to highlight a few points which I consider to be
8 important within the time allotted to us, and perhaps then in the rebuttal
9 we will have a chance to say a few more words. I would suggest that a
10 part of my argument be in open session, but I would appeal to Their
11 Honours to allow us to go into private session for another part of my
12 statement, which will come at the end.
13 Mr. Clegg spoke about the plea of guilty which should be taken
14 into account when sentencing. I should just like to add to what has
15 already been said by Mr. Clegg, the following: The accused showed
16 consciousness of his guilt before making a plea in the Trial Chamber, even
17 before coming to the Tribunal. He had told Witnesses DO, DF, DA, and DQ
18 clearly what he had done and shown remorse.
25 A second point I wish to make --
1 [Appeals Chamber and legal officer confer]
2 JUDGE SHAHABUDDEEN: Mr. Babic, I am advised that the witness to
3 whom you are now referring testified in closed session. Does that present
4 you with a problem?
5 MR. BABIC: [Interpretation] In view of the fact that I have not,
6 in any way, identified them, I think this should not be a problem at this
8 JUDGE SHAHABUDDEEN: Thank you for that remark. I take it, then,
9 that you intend to proceed on the basis that there will be no
11 MR. BABIC: [Interpretation] I have no intention of identifying
12 them, and I shall be very careful, Your Honours.
13 Maybe I will be repeating something Mr. Clegg said, but the
14 accused did admit, contrary to his Defence counsel's advice, three
15 additional murders with which he was not charged or accused of, and I
16 think this should be taken into account. Also, as Mr. Clegg pointed out,
17 the result of admission was based on an agreed statement of facts, and it
18 was on the basis of that agreed statement of facts that another indictment
19 was issued, that the indictment was amended. That is why no new witnesses
20 were called, no other evidence presented, and all the material expenses
21 saved, all the things that are implied when a plea of guilty is entered.
22 Mr. Clegg spoke about the sincerity of remorse, and I will refer
23 again to the statements of the same witnesses to support that. I should
24 also refer to the statements of the accused himself, because the Trial
25 Chamber said that the accused did not manifest his remorse to the Trial
12 Blank page inserted to ensure pagination corresponds between the French
13 and English transcripts.
1 Chamber, but let me refer to a statement of the appellant.
2 During his repeated plea, when he admitted the offences, he stated
3 before the Trial Chamber that he had made his plea -- that he had entered
4 his plea of guilty voluntarily, unconditionally, and that, in that way, he
5 wanted to clear his soul. That was stated in 1998.
6 In response to a question by the President of this Appeals Chamber
7 at the Status Conference on the 4th of April about how he felt in
8 detention, the defendant replied, "Sorrow, remorse, and shame," thereby
9 clearly showing how he was feeling about his crimes.
23 and also the finding of the psychiatrists regarding the appellant.
24 May I also refer to a note I took when talking to Mr. McFadden on
25 the 7th of September last year, the commander of the Detention Unit. The
1 discussion referred to the condition of Mr. Jelisic. I asked him what his
2 assessment was of his condition, and Mr. McFadden said the following and I
3 took it down word by word: "Jelisic is a victim in many ways. He has a
4 disturbed personality because he knows that he did bad things. And if
5 there was a way for him to make up for it, I am sure that he would do
6 it." I think this testifies to the remorse that the appellant expressed
7 in his conversation with Mr. McFadden.
8 Other Defence witnesses also said that Goran Jelisic committed his
9 crimes -- I beg your pardon. I skipped a part.
10 All this shows beyond any reasonable doubt that Goran Jelisic
11 feels sincere remorse for the crimes he has committed, because he who has
12 sincere remorse does not ask God or this Honourable Trial Chamber's pardon
13 but for a sentence he deserves. And may I say once again that 40 years is
14 a sentence that he deserves.
15 JUDGE SHAHABUDDEEN: Just for my information, what are you reading
16 from? What text are you reading from?
17 MR. BABIC: [Interpretation] These are my handwritten notes, Your
19 JUDGE SHAHABUDDEEN: I thought you were reading a statement by
21 MR. BABIC: [Interpretation] I had read what Mr. McFadden told me
22 when I visited the Detention Unit. I would also like to point out that
23 all the witnesses I have mentioned --
24 JUDGE NIETO-NAVIA: [Interpretation] Sorry, Mr. Babic, that is not
25 part of the record, I think.
1 MR. BABIC: [Interpretation] No, no, no. It's not in the record.
2 Can I explain? I asked Mr. McFadden whether he would send a report to
3 Their Honours on Jelisic's behaviour in detention. Mr. McFadden answered
4 that nobody had asked him to do that; however, as far as he was concerned,
5 he would convey his own opinion, and that is what he did. That is what he
6 told me.
7 JUDGE SHAHABUDDEEN: Mr. Babic, the point is that the Appeals
8 Chamber can only listen to the case on the basis of the record before it.
9 Now, what my colleague on my left asked you was whether the material which
10 you are now presenting forms any part of the record which we are to
11 consider. It does not. Do I understand you?
12 MR. BABIC: [Interpretation] Mr. McFadden did report to the Trial
13 Chamber on the behaviour of Mr. Jelisic up to that time in detention. I
14 went to see him a year later, whether he would report on his behaviour
15 after that period.
16 JUDGE SHAHABUDDEEN: That may very well have been the case, but
17 what my colleague on my left wanted to know was whether any of this forms
18 part of the written documentation now before the Appeals Chamber. Can you
19 point any pages in the record before us which would reflect the material
20 which you are now putting before us?
21 MR. BABIC: [Interpretation] Your Honours, I did not take part in
22 the hearings because that is what I was told by the registrar. But I was
23 told that the commander of the Detention Unit did submit a report about
24 his behaviour, and I think that that report is part of the brief -- part
25 of the record, I'm sorry.
1 THE INTERPRETER: Microphone Your Honour, please.
2 JUDGE SHAHABUDDEEN: We would leave that to the other side to take
3 up at the appropriate stage if they see fit. Thank you.
4 MR. BABIC: [Interpretation] (redacted)
7 May I also say a few words about the fact that Jelisic acted upon
8 orders, upon orders as a form of coercion to carry out tasks in the
9 execution of the main principals of a police and military organisation
10 based on the chain of command and subordination. This was testified to by
11 Witness DF who said, among other things, and I quote: "We were expected
12 to be completely obedient in relation to orders issued to us. The
13 consequences would be very severely sanctioned. And sometime around the
14 15th of May, 1992, I met Goran in Brcko, and he told me that he had to do
15 certain bad things; that he had to kill upon orders from others, otherwise
16 he himself would be killed. The punishment for refusing to execute orders
17 were severe, and he would be executed for failure to comply with orders."
18 Witness DG, (redacted), in his statement
19 said, I quote: "I heard about Goran Jelisic's crime in Brcko. He
20 admitted that it was true. He was prompted to carry out such things. He
21 was forced to do that, that he was exposed to the risk of being killed.
22 He mentioned certain names, but I do not remember them."
23 And finally, OTP investigator Mr. O'Donnell said in the court
24 that, "Goran Jelisic had claimed that he was told to carry out murders,
25 that he was threatened to be killed if he failed to do so. He said that
1 all the murders that he committed were committed by him because he was
2 given orders, and he was not in a position, nor did he have any authority,
3 so he confirmed that there were other people who were in charge of what he
4 was doing, that they were superior to him in the Luka camp." That was
5 Mr. O'Donnell's response to a question by His Honour Judge Riad as to what
6 he meant when he said "others were responsible for him."
7 Other witnesses also spoke about orders, so that the Trial Chamber
8 erred when it came to the conclusion that the appellant did not act upon
9 orders, which certainly affected the sentence. And it should be
10 underlined that a way out of the personal situation that he was in he
11 found by firing a shot in his own foot and fleeing from Yugoslavia, and
12 there is evidence to confirm this. He no longer wanted to execute any
13 police or military orders. That was his own moral choice.
14 Mr. Clegg made a comparative analysis as to the sentences in other
15 cases, and let me just add the following to that. In the meantime, after
16 the sentence had been passed, I obtained an article from the Zagreb
17 newspaper Vecernji List of the 9th of October of 2000 in which the public
18 is being informed that the high court of Croatia in a case Prosecutor
19 versus Sakic relating to the years 1941 to 1945 and the camp called
20 Jasenovac, a notorious camp in Yugoslavia, the defendant in that case was
21 sentenced to 20 years in prison. And this is just a fact that I would
22 like to bring to your attention so that the Appellant Chamber can take
23 this into account when deciding on the appropriate sentence for the
25 As far as the general court practice in the former Yugoslavia is
1 concerned, the Defence was allowed to obtain from Professor Radimir Tamic
2 in Sarajevo an expert report concerning the general practice of the courts
3 in the Socialist Federal Republic of Yugoslavia and the countries that
4 were created on that territory later on. He compiled that report. I have
5 it in Serbian language, and I could forward it to the Appellant Chamber
6 for review. I don't want to comment on this report because it is quite
7 clear on its own.
8 I further believe that when deciding on the sentence, the Roman
9 law should be taken into account. I would remind you of Article 77 of the
10 Rome Statute. Under paragraph (a) it sets forth that a prison sentence
11 should not exceed 30 years, and under paragraph (b) the Rome Statute says
12 that life imprisonment is justified by the extreme circumstances under
13 which the crime was committed. My only comment to this is that
14 Mr. Jelisic's case cannot fall or cannot be considered to fall under
15 paragraph (b) of the Rome Statute.
16 And the last item that I would like to bring up I would like to
17 discuss in closed session, if you please.
18 [Private session]
13 Page 192 redacted – private session
13 Page 193 redacted – private session
13 Page 194 redacted – private session
8 [Open session]
9 MR. BABIC: [Interpretation] These are petitions addressed to this
10 Appeals Chamber, and I believe that this Chamber has already received
11 them. I would now like to highlight them as an interest expressed by the
12 public in the work of this Tribunal and as a way to manifest, to
13 demonstrate to the public, to the general public, that the decisions of
14 this Tribunal are fair.
15 [Appeals Chamber confers]
16 JUDGE SHAHABUDDEEN: There is a difficulty, Mr. Babic. You are
17 proposing to present to us material which is not part of the record. We
18 can only look at the record, I think.
19 What you can do, if you like, is to adopt the views which are
20 presented in the material you have - I don't know what those views are -
21 and make them their own, but not present the material to the Court
22 itself. Do you follow that?
23 MR. BABIC: Yes.
24 JUDGE SHAHABUDDEEN: You can adopt the line of argument, if you
25 see fit, presented in the material but not present the material itself to
12 Blank page inserted to ensure pagination corresponds between the French
13 and English transcripts.
1 the Court.
2 MR. BABIC: [Interpretation] With all due respect, Your Honours, I
3 will be very brief.
4 All the petitions boil down to the following: that the citizens
5 follow the work of this Tribunal and its decisions with great attention,
6 and that the citizens, those who petitioned this Tribunal, believe that
7 the sentence of Mr. Jelisic was too severe.
8 To this, I would like to add that the petition sent from Bijeljina
9 was signed by 4.198 individuals, out of which 47 were Muslims, 45 were
10 Croats, and another 130 individuals were non-Serbs.
11 I would also like to add that there were certain individuals from
12 the host country, from the Netherlands, who have adopted this same
13 position and have petitioned the Tribunal with respect to this as well.
14 This is all that I wish to say. Thank you.
15 THE INTERPRETER: Microphone, please.
16 JUDGE SHAHABUDDEEN: I was saying that I was much obliged to
17 Mr. Babic.
18 Unless there are any questions from members of the Bench, I think
19 this would be a convenient moment to take 15 minutes' break.
20 The hearing is suspended.
21 --- Recess taken at 11.03 a.m.
22 --- On resuming at 11.22 a.m.
23 JUDGE SHAHABUDDEEN: Mr. Clegg, I take it that is the end of the
24 opening case for the appellant in this appeal?
25 MR. CLEGG: It is.
1 JUDGE SHAHABUDDEEN: Yes. Now, while you are still on your feet,
2 may I just raise with you a point on which we need your guidance. The
3 Appeals Chamber will have, sooner than later, to prepare a judgement, and
4 we will want to know what exactly are the grounds on each side.
5 Now, there is a skeleton argument submitted by you. Should we
6 take it that the case for the appellant in this appeal is the case as
7 specified in the skeleton argument; that is to say, supported where
8 appropriate by any arguments in the brief, but not such that any grounds
9 listed in the brief but not reflected in the skeleton arguments are be to
11 MR. CLEGG: The grounds advanced are those identified in the
12 skeleton. Had more time been available, I would have prepared a short
13 appellant's brief by way of substitution of that previously submitted, but
14 I regret time did not permit me to do that.
15 If the Court would wish me to expand the skeleton and to identify
16 grounds of appeal in a more easily recognised form, I would be very happy
17 to do so. Alternatively, if the Court would be prepared to accept the
18 skeleton with all its limitations, then it certainly embraces the matters
19 that we wanted to advance as expanded in oral argument.
20 JUDGE SHAHABUDDEEN: The question is one, if I may say so, of the
21 imperatives of the situation. We are nearing the end of the case and we
22 are about to approach the beginning of the writing of a judgement, and
23 there's, perhaps, no room for any modifications which may suggest an
24 expansion or variation of the position by either party during the course
25 of this hearing, so we would discourage the idea of presenting a new or
1 modified brief. We would stick to the existing brief.
2 The question which I'm asking is whether we should take it that
3 the case presented by the appellant in this appeal is a case as presented
4 in the skeleton argument.
5 MR. CLEGG: Yes.
6 JUDGE SHAHABUDDEEN: Yes, yes. Thank you.
7 Now, that is the case for the appellant in this appeal.
8 Now, Mr. Prosecutor, you have the floor. May I put to you or
9 recall your arrangement with the Bench yesterday that you would be
10 allotted some additional time on the basis that there would be an
11 appropriate discount at this stage. And you'd also bear in mind, please,
12 that the appellant himself has taken up less than his allotted period of
13 two hours.
14 MR. YAPA: Thank you, Your Honour. I do remember the application
15 that I made, and I'm quite sure we will keep to the time that has been
16 allotted. Thank you very much.
17 MR. GUARIGLIA: Good morning, Your Honours. I shall be very brief
18 and honour our commitment to remain within the boundaries of our time
20 Your Honours, first I may have to bother you with something that
21 you already know but that, nonetheless, we submit requires to be restated.
22 It is, what is the scope of appellate review of sentences imposed by trial
23 Chambers since it is the position of the Prosecution that the Defence may
24 have misstated the exact scope of that review once the sentence has been
25 imposed by a Trial Chamber.
1 At the outset, the purpose of appellate proceedings, and this has
2 been recently restated and clarified by the Celebici decision of this
3 Appeals Chamber, the purpose of appellate proceedings is not for the
4 Appeals Chamber to reconsider the evidence and factors submitted before
5 the Trial Chamber.
6 Second, the appellate process itself is not a forum to provide the
7 parties with a supplementary chance to remedy their own failings or
8 oversights during sentencing procedures within trial procedures.
9 Third, your scope of examination is confined to determine whether
10 a Trial Chamber, in imposing a sentence in a given case, committed an
11 error of law by not taking into consideration factors established in the
12 applicable provisions governing ICTY proceedings, that is, Article 24 of
13 the Statute, Rule 101 of the Rules of Procedure and Evidence
14 ; or whether the Trial Chamber abused its
15 discretion under those provisions. In both cases, that error, under the
16 clear jurisprudence of this body stemming from the Tadic sentencing appeals,
17 reaffirmed in the Furundzija Appeals Judgement and now again in the
18 Celebici Appeals Judgement, must be a discernible one.
19 Absent a showing by the appellant of a discernible error committed
20 by the Trial Chamber in exercising its discretion in the imposition of an
21 appropriate sentence, that sentence of
22 the Trial Chamber remains undisturbed, and you shouldn't be asked to go
23 beyond the limits of that very precise and very narrow scope of appellate
25 The cornerstone of sentencing proceedings and imposition of
1 sentence in this institution, as recognised by this Appellate Court, is
2 that Trial Chambers exercise a considerable amount of discretion, although
3 not unlimited, in determining the appropriate sentence; and that the,
4 perhaps, main pillar for that intellectual process of determining what the
5 appropriate sentence is, is the gravity of the crime attributed to the
6 accused and of which the accused has been convicted.
7 That takes me to one of the first submissions by my learned
8 friend, this alleged need to establish a recognised tariff of sentences in
9 the International Tribunal. I would respectfully submit that such a need
10 simply does not exist.
11 We add that in the recent Celebici Judgement, the Appeals Chamber
12 declined to follow a similar, to some extent, invitation of the
13 Prosecution to develop a list of basic principles for sentencing. The
14 reasoning of the Appeals Chamber was that such a list would be of no value
15 and that Trial Chambers must always honour their overriding obligation to
16 individualise a penalty to fit the individual circumstances of the case
17 and the gravity of the crime. I am quoting paragraph 717 of the Celebici
19 The Appeals Chamber noted in that decision, which appears to be in
20 line with a prior finding of this Appeals Chamber in the Furundzija case,
21 that it was premature to speak of a regime in relation to sentences in the
22 International Tribunal. The Appeals Chamber in the Celebici decision,
23 I repeat, considered that it may be that as the number of sentences
24 imposed by Trial Chambers of this institution increase, there will be an
25 emerging body of law which Trial Chambers will be obliged to consider for
1 sentencing purposes but not bound to consider for the very same purposes.
2 The rationale behind it: Trial Chambers must retain the sufficient margin
3 of discretion, as granted by the Statute and the Rules, to impose the
4 sentence that best reflects the gravity of the crime committed by an
5 accused and his culpability or her culpability.
6 That also means that a comparison between different cases and
7 different sentences imposed in different cases is of limited or no value
8 at all, and this has also been established by this Appeals Chamber in the
9 recent Celebici decision; it is a clear finding, saying that often the
10 differences between the cases are more significant than the similarities,
11 and the mitigating and aggravating factors dictate different results.
12 Comparing different cases of the International Tribunal is, then,
13 an exercise of very, very limited value, and in the case at bar,
14 the examples that have been provided by my learned friend are, we
15 respectfully submit, misleading in a number of ways.
16 A simple example, because I do not intend to spend more time on
17 this, is the reliance on the Erdemovic case as a similar
18 case, which simply ignores the enormous differences between the nature of
19 both cases, the conduct of both accused, and the findings of both Trial
21 In the case of Erdemovic, there's a clear subjective difference
22 with the case of the appellant in this proceedings. Erdemovic was
23 characterised, was found to be, a reluctant executioner, someone who had
24 been, to a large extent, coerced to engage in criminal activity; a
25 perpetrator that was tormented by remorse, and that remorse being genuine;
1 a perpetrator who had confessed his crimes before there was any
2 prosecution against him.
3 Now, the findings of Erdemovic and the sentence imposed on
4 Erdemovic in the light of these very particular circumstances, we
5 respectfully submit, cannot possibly be applied to the case of an accused
6 whose behaviour has been found to be repugnant, bestial, and sadistic, the
7 judgement of the Jelisic Trial Chamber, at paragraph 130; nor to someone
8 whose cold-blooded commission of murders and mistreatment of people attest
9 to a profound contempt for mankind and the right to life, same paragraph
10 of the judgement; nor can they apply to a person who enthusiastically
11 committed his crimes and took advantage of the opportunity afforded to
12 him, by the feeling of power, to impose his own will on the defenceless
13 victims and to decide who would live and who would die.
14 We would respectfully submit it is untenable to sustain that
15 someone who willingly and enthusiastically engaged in criminal activity of
16 this nature should be compared with a reluctant executioner, tormented by
17 remorse, as would be the case of Erdemovic. This shows again that cases
18 before the International Tribunal should be treated individually, and that
19 the discretion granted by the Statute and the rulings from Trial Chambers
20 serves a purpose, and that purpose is to allow Chambers to individualise
21 the correct sentence for each case.
22 Same must be said about this allegation that under the law of this
23 institution, the rank or the relative rank of an accused gives rise to
24 some entitlement to obtain a lesser sentence; or put the other way around,
25 that the higher you go in the chain of command, the more serious
1 sentencing should be, the further down you go in the chain of command, the
2 more lenient sentences should be. And we submit that the appellant's
3 reliance on the Tadic sentencing appeals is misplaced.
4 The decision of this Appellant Court in the Tadic sentencing
5 appeals cannot and should not be read as one establishing an automatic
6 right to mitigation in the case of low-level perpetrators. And here
7 again, this particular issue has been clarified, conclusively clarified,
8 we submit, in the recent Celebici Judgement of the Appeals Chamber whereby
9 it can be read that: "The Tadic Sentencing Appeal Judgement ... did not
10 purport to require that, in every case before it, an accused's level in
11 the overall hierarchy in the conflict in the former Yugoslavia should be
12 compared with those at the highest level, such that if the accused's place
13 was such by comparison low, a low sentence should automatically be
14 imposed. Establishing a gradation does not entail a low sentence for all
15 those in a low level of the overall command structure. A sentence must
16 always reflect the inherent level of gravity of a crime....In certain
17 circumstances, the gravity of the crime may be so great that even
18 following consideration of any mitigating factors, and despite the fact
19 that the accused was not senior in the so-called overall command
20 structure, a very severe penalty is nonetheless justified."
21 I'm sorry to have to bother Your Honours with reading these
22 findings, but this is a very recent decision and we submit
23 it goes right to the point.
24 JUDGE SHAHABUDDEEN: Could you kindly state the paragraph --
25 MR. GUARIGLIA: Yes, I was going to do that now.
1 JUDGE SHAHABUDDEEN: -- so that when we read the transcript, we
2 will be able to identify exactly what is the passage you are referring to
3 and find it easily.
4 MR. GUARIGLIA: Yes, Your Honour. It's paragraph 847, and I was
5 going to make that clear now.
6 So, Your Honour, the position of the Prosecution I think is clear.
7 The Trial Chamber in its judgement took into account all mitigating
8 factors as established by the Statute and the pertinent Rules. What the
9 appellant seems to be complaining of is that the Trial Chamber allegedly
10 did not attach the sufficient weight to some of those factors.
11 We would respectfully submit, Your Honour, that the weight to be
12 attached to a particular mitigating factor is a matter that arises within
13 the discretion of the Trial Chamber and should, absent a showing of an
14 abuse of discretion, remain undisturbed.
15 There is no doubt, and I don't think it has been submitted
16 otherwise, that the Trial Chamber did consider all factors. Let's take
17 the youth of the accused. The youth of the accused was an issue expressly
18 dealt with by the Trial Chamber in its judgement at paragraph 124. It was
19 extensively litigated during sentencing procedures. In closing argument,
20 counsel for the appellant referred to the appellant as a "young man" at
21 least seven times.
22 This is not a forum, we repeat, where an appellant can come and
23 attempt to relitigate issues that were discussed and were addressed before
24 a Trial Chamber after the Trial Chamber has made its decision.
25 Finally, Your Honours, two brief points: It wasn't very clear to
1 the Prosecution what type of error the appellant was alleging as far as
2 the consideration of the sentencing practice of courts of the former
3 Yugoslavia is concerned. We have responded in writing extensively to the
4 arguments raised at that point in time by the appellant in his appeal
5 brief. We will only here repeat what is at this stage "jurisprudence
6 constante" of this Appellate Court: Trial Chambers are not bound by the
7 practice of the courts in the former Yugoslavia.
8 This principle as stated by the Celebici decision of this Appeals
9 Chamber at paragraphs 813 and 816 applies to crimes committed both before
10 and after the Tribunal's establishment; and this issue was also, we
11 repeat, fully litigated during sentencing proceedings before the Trial
12 Chamber with counsel for the appellant providing the Trial Chamber with
13 decisions from some courts in the former Yugoslavia which were considered
14 by the Trial Chamber, and they were given the weight that the Trial
15 Chamber considered appropriate.
16 Your Honours, the overarching finding of the Trial Chamber in the
17 case of the appellant was that considering all mitigating circumstances
18 established in the Statute and the Rules and that had been advanced by the
19 appellant during sentencing proceedings, and balancing those mitigating
20 circumstances against those aggravating circumstances that had been
21 established by the Prosecution during the same sentencing proceedings, the
22 final conclusion was the aggravating circumstances far outweighed the
23 mitigating circumstances, and that is the main premise on the basis of
24 which that particular sentence was imposed on the appellant.
25 And we submit there is no showing of a discernible error by the
12 Blank page inserted to ensure pagination corresponds between the French
13 and English transcripts.
1 appellant; there is no showing of an abuse of discretion by the Trial
2 Chamber; and we respectfully submit that absent such a showing, that
3 discretion should remain undisturbed and that you should refrain from
4 intervening when a showing of this nature has not been made.
5 That concludes my submissions, Your Honours, and I will leave now,
6 with your leave, the floor to Mr. Geoffrey Nice who will address some of
7 the particular issues pertaining to this ground of appeal.
8 JUDGE SHAHABUDDEEN: Thank you.
9 Mr. Nice.
10 MR. NICE: I, too, hope to be brief. With absolutely no
11 suggestion of complaint, we, of course, face today a slightly differently
12 presented argument from that which was forecast in the larger pleading at
13 an earlier stage submitted by the appellant. Our position is that we
14 stand by all our arguments in our full response to that larger pleading
15 but seek to amplify that response by our observations today in replying to
16 what our two friends opposite have argued.
17 Very briefly before I turn to the somewhat disconnected handful of
18 points I have to deal with, Mr. Babic raised an issue that really relates
19 to yesterday's hearing about things that I said, but it is important for
20 me to point you to where this matter can properly be resolved. In our
21 brief on the genocide issue, and he was harking back to that, at paragraph
22 4.62 I set out -- or rather, we set out in full the position of the
23 evidence of 2.000 or 3.000 dead and so on, and I stand exactly by what I
24 said yesterday.
25 As to what was being said by Mr. Babic in respect to what I said
1 about lists, again, there seems to have been, perhaps, by Mr. Babic some
2 misunderstanding of how these lists operated. The position so far, and
3 this is on recollection - I haven't been able to check the point because I
4 didn't know it was going to be raised - but so far as my recollection is
5 concerned, there was one -- let me go back.
6 Mr. Babic says they were not all dead. The larger list of 100
7 names was derived from a list provided by the Serbian authorities of 200
8 plus people or bodies that they recorded as having been deposited in mass
9 graves over a limited number of days. Of that, and I think it was 200
10 plus, 100 could be identified by name. These were the names that were put
11 to every witness in extensive form by the Defence, and I think one name
12 did show up as a person who was still alive. I remember he was a butcher
13 in another town. And whether there was confusion over the name or whether
14 it was somebody having the same name, but so there was one name and, in my
15 recollection, one name only of all those lists prepared in the different
16 ways who may have been shown still to be alive. I would have checked this
17 more fully if I'd had advance notice.
18 I now turn to the matters that have been argued this morning.
19 First, on this aspect of the case there can be no doubt that there was
20 full argument by both sides to the Trial Chamber on the issue of sentence
21 with the calling of evidence, extensive evidence, by the Defence.
22 Obviously, this Chamber is in a position, if it wishes to, to read the
23 arguments advanced from both sides and, cogently as I recall them, by
24 Mr. Greaves then appearing for the appellant Jelisic.
25 I see that there is no complaint on the basis now of material
1 provided to the Trial Chamber, but can I -- there's one remaining
2 complaint, but there's no complaint about the material provided. I'll
3 come back to the matter of complaint in a minute.
4 The materials provided to the Chamber by the Prosecution included
5 an extensive skeleton that they could follow, a text they could follow of
6 the submissions we were making. That text did not become part of the
7 record. It was for reference purposes and then, no doubt, to be in due
8 course discarded.
9 To that text there was an analysis of -- attached to that text
10 there was analysis of some of the Defence witnesses, and there was another
11 extensive tabular analysis of the evidence that related to the pleas of
12 guilty side by side to what the appellant had said in the interviews with
13 investigators in relation to those matters. And the material was made
14 available to the Trial Chamber in this way because this had the potential
15 for being confusing material, and it needed to be available in a
16 side-by-side basis so that the Chamber could look at each individual
17 killing and say, "This was the evidence in relation to that killing, and
18 this is what the appellant said about it."
19 Now, one complaint or perhaps two were made. First, there's the
20 suggestion that there was an agreed basis of facts between the parties in
21 respect of the pleas of guilty. It is true there was a document so
22 titled, a very slim document which simply reflected the pleas that were
23 going to be tendered and said in a sentence or so the defendant took two
24 brothers or one brother outside and shot him. Simply not enough factual
25 material for any Trial Chamber to pass sentence because it was a bare
1 assertion of an activity.
2 When that document was served in 1998, and it was amended but in
3 the most insignificant way for these purposes I think in October of 1998,
4 it was recognised by those then conducting the case, Mr. Bowers and
5 Mr. Tochilovsky, that the Chamber would require further assistance if and
6 when or when it came to deal with the pleas. And so a further appendix
7 was served at that time as a filing, and that contained extracts from
8 material witnesses whose evidence would have touched on individual crimes
9 to which the appellant had made admissions, and it also contained some
10 fuller witness statements covering the same topic as a confidential annex.
11 So that the Chamber had for its consideration of sentence, it had
12 this raw material that was always known to be the basis upon which the
13 Prosecution would present material as under Rule 100 to assist the
14 Chamber. It had full argument, and it had, of course, the evidence in the
15 genocide trial. It then had the tools of analysis to which I have
17 I can tell Your Honours that, and I hope that the Court will
18 accept it because the tools provided were not part of the record, but the
19 very large majority of material relating to the pleas of guilty was
20 evidence that had been given in the genocide trial, and the other way
21 around, in the genocide trial, evidence reflecting the matters to which he
22 had pleaded guilty was very much the majority of the evidence. There was
23 other evidence, but comparatively little, so that there was no risk of, or
24 no significant risk of infection of the Chamber by that additional
25 material it had heard in the genocide trial.
1 First of all, one can trust that the Chamber knew what its duty
2 was. But in any event, all the materials focused on these matters to
3 which the appellant had pleaded guilty, and the tools with which they were
4 provided, I trust, would have assisted them in that exercise.
5 I have to say that the exercise I then had to perform before the
6 Trial Chamber, that is, not an exercise in mitigation of sentence with
7 which common law lawyers are much more familiar but an exercise in
8 identifying the gravity of the offence, is not one which necessarily comes
9 very naturally to common law advocates. It's still a strange experience.
10 It's our argument that neither those of us presenting the case nor the
11 investigators who had to give some assistance to the Chamber on issues of
12 gravity had any desire or any purpose to serve in making the picture worse
13 than it was. The sole purpose at all times was to try and get the correct
14 picture of the gravity of the crimes and of the nature of the appellant.
15 If I could turn to the twin issues of the interviews, which I can
16 deal with in open court and the other aspect of the matter which I may
17 have to deal with briefly in a closed session, on those twin issues, the
18 Chamber may be assisted by the material evidence of the investigator
19 O'Donnell, given on day 19 and, in my pagination if it's correct, starting
20 at 2066, where at two passages - one, 2083 and one, 2169 - he dealt with
21 these issues for the assistance of the Trial Chamber in the course of
22 dealing with the interviews. I shan't go over his answers extensively,
23 and I would invite the Chamber if it finds this a helpful issue to read
24 them, because they are not very long.
25 He was given, the Chamber may conclude, a balanced view,
1 explaining, first, so far as the interviews are concerned, that yes, he
2 was -- that the appellant was giving, it appeared, a sanitised version.
3 They were taking time with the appellant because they were concerned, of
4 course, to contrast what the appellant was saying with the independent
5 material they had, witness statements and the like, that was at odds with
6 what he was saying. Indeed, one of the problems of the interviews was,
7 lengthy though they were, that the appellant was setting the agenda
8 himself and declining altogether to be interviewed on certain topics. For
9 example, he declined altogether to be interviewed about genocide as a
10 particular topic, but there were other controls he made. Indeed, it
11 appears that it was when they were going, in the last interview, to deal
12 with further inconsistencies that it was the appellant who stopped the
13 interview process.
14 Nevertheless, within that process, the officers identified
15 inconsistencies both within the interviews themselves, going to show doubt
16 on the man's true candor, and real inconsistencies between what he was
17 saying in mitigating his role and what was available from independent
19 So there is every reason for the Chamber to have taken the very
20 cautious view that it may have taken in respect of credit to be given for
21 this aspect of cooperation and plea.
22 Can I turn, briefly, perhaps in closed session for safety, to the
23 other aspect which has been raised particularly by Mr. Babic.
24 [Private session]
13 Page 214 redacted – private session
13 Page 215 redacted – private session
10 [Open session]
11 JUDGE SHAHABUDDEEN: Yes.
12 MR. NICE: I move on to a couple of points about plea of guilty.
13 The Chamber was entirely justified, in our respectful submission,
14 in placing very little reliance on that in light of what it observed,
15 first, about the photograph sequence. I referred to this yesterday. It's
16 the photograph sequence of the appellant executing someone, several
17 photographs of him and of how he does it. He couldn't deny that.
18 As the Chamber will readily understand, by the presentation to him
19 in interview of witness statements that identify him with absolute
20 clarity, it was beyond doubt he may have judged that he had no defence to
21 nearly all the matters that are the subject matter of his pleas of
22 guilty. There is no automatic entitlement, and it can be outweighed by
23 aggravating circumstances. Of course, Kambanda pleaded guilty and, as we
24 know, received the maximum sentence of life imprisonment.
25 A few other points. As to whether he was, was regarded as, or
1 should ever have been advanced as a commander, it was never suggested that
2 he was the actual commander of the Luka camp, the third place where he was
3 seen - first, the police station; second, briefly, the Laser bus station;
4 and then the killings at Luka - never suggested he was the commander
5 there. The contrary.
6 The Prosecution's case was, in the trial, that of course he was
7 acting pursuant to a plan and, as a matter of inevitable inference, as a
8 subordinate to others who were the architects, as it is said, of the plan
9 and who were commanding him. Indeed, we relied upon the facts that he
10 referred to himself in interview of his recruitment and of his
12 So there was never any suggestion that he was the actual commander
13 of the Luka camp. Yes, one or two witnesses assumed he was, and there may
14 have even been words said to suggest that he was. But the clear body of
15 evidence both from him and from the victim witnesses was to the effect
16 that he was working together with others - the inspectors who carried out
17 brief interrogations in particular will come to mind - and that showed
18 that they were all working within a regime of which it was not suggested
19 he was the chief.
20 Of course, he had extensive de facto power within that regime, and
21 it may be he had command, certainly when he had the gun in his hand, over
22 some of the others who assisted him. But that is not to say that we
23 suggested, and we did not, that he was the commander of the camp. That
24 matters not at all and, in our respectful submission, was, must have been,
25 and plainly was fully understood by the Trial Chamber.
12 Blank page inserted to ensure pagination corresponds between the French
13 and English transcripts.
1 A couple of things about personality and remorse. The suggestion,
2 incidentally, that he didn't and couldn't have given evidence is probably
3 not accurate. Given the extensive nature of sentencing proceedings, there
4 is nothing to stop an accused giving evidence at that stage on his own
5 behalf in explanation of what he had admitted. Nothing to stop that.
6 The evidence in respect of remorse or the material properly
7 available in respect of remorse was probably not limited strictly to
8 evidence from the witness chair, for in a long trial, a Chamber has an
9 opportunity to consider a man even if he remains silent. I don't exclude
10 the possibility that the Trial Chamber will have made some assessments of
11 him, both his presence and the occasions when he chose to absent himself.
12 As to the spoken or written evidence, apart from what individual
13 witnesses said, and to those I will turn for the sentence or so per
14 witness in a second, as to the other spoken or written evidence, it was
15 nearly all one way. The psychiatric evidence, apart from the very brief
16 reference slightly misquoted in the footnote of the judgement as to a page
17 reference but matters not about that, of the Dr. Van den Bussche, the
18 evidence was all one way: No remorse.
19 Van den Bussche, and it suggests that it's page 22, but the
20 relevant document only runs to page 17, and it's on that page that the
21 doctor, who had a short second examination of the appellant, said, "He
22 would appear more than in the past to demonstrate remorse."
23 The same report of the doctor, which is part of the record for you
24 to consider, made it plain in various ways that his concerns were almost
25 exclusively for himself. He gave various examples of what the appellant
1 said to him about crying and matters of that sort while in custody, but it
2 all emerged that these were focused on himself, thus really giving support
3 not to the very low level of conclusion "would appear more than in the
4 past to have remorse" but would have supported the other findings about
5 the personality defects, limited though they may have been, of this
6 appellant at the time he examined him.
7 Accordingly, there was no reason for the Chamber to take other
8 than the view they clearly did, in our respectful submission, about
9 remorse and to discount it in the way that they properly did.
10 Again, without wishing to trouble you with researching passages of
11 transcript, there was a day, I think it was the last day of evidence, when
12 both doctors were examined and cross-examined, and if there's any concern
13 about the issue that's raised on remorse related to the psychiatric
14 evidence, I would invite the Chamber to at least consider reviewing that
15 material, which of course I'm not going to review any more than to the
16 degree I have already.
17 Remorse, I have to say, was also countered by a piece of evidence
18 to which I must turn, if I may, in closed session.
19 [Private session]
13 Page 221 redacted – private session
13 Page 222 redacted – private session
13 Page 223 redacted – private session
24 [Open session]
25 JUDGE SHAHABUDDEEN: You are in open session now.
1 MR. NICE: Thank you, Your Honour.
2 Without dwelling on it, one of the other features of the evidence
3 overall that may have lain behind the Trial Chamber's rejection of what
4 was being urged as mitigation, was that despite these extensive interviews
5 and despite every opportunity to call witnesses made available to the
6 Defence, the picture of what this man did, both before arriving at Brcko,
7 the year or so before when we know he was convicted of some comparatively
8 small crime, and what he did afterwards before arrest was wholly
9 unarticulated and unclear.
10 JUDGE SHAHABUDDEEN: The screens, the screens suggest that we are
11 still in closed session.
12 Yes, Mr. Nice.
13 MR. NICE: The picture both before and after was wholly unclear.
14 The picture of his recruitment before when in a very short space of time
15 he either rose so as to become somebody who committed these crimes or
16 threw himself willingly as being one of these people who could commit
17 crimes, the picture after when he could have shown genuine remorse and he
18 could have surrendered himself, were both entirely unclear, consistent --
19 JUDGE SHAHABUDDEEN: Proceed.
20 MR. NICE: -- with the position taken by the Prosecution and, it
21 appears, adopted by the Chamber that he was not candid. He was not
22 honest, particularly in relation to the things he dealt with in his
23 interviews, where, for example, he said he didn't look at people when he
24 was killing them and he said, "If anybody had asked me not to kill them, I
25 wouldn't have killed them;" countered by stretches of evidence of people
1 pleading for their lives at the moment that he executed them himself. And
2 you can see all this in the schedule I provided yesterday.
3 There was material to find that he was not candid and was
4 dishonest. And the extent of material available to the Chamber, carefully
5 argued on the day of closing submissions, and as we see from their
6 judgement in summary form, plainly reviewed by them on this topic, it's
7 our submission that they performed their sentencing assessment correctly
8 with all the material there to help them, and the decisions they reached
9 factually are beyond reproach. And that in light of the jurisprudence
10 that my learned friend Mr. Guariglia has reminded you of and has -- and as
11 has been advanced in our written brief, the sentence imposed was not a day
12 too long and should be sustained.
13 That's all I have to say.
14 JUDGE SHAHABUDDEEN: One question.
15 JUDGE WALD: Actually, I have two questions for Mr. Guariglia and
16 one for Mr. Nice, but since Mr. Nice is on his feet, why don't I take that
17 one the first.
18 If I understand one of the appellant's arguments, and I would like
19 your reaction to it, it is that though he pleaded on the basis of an
20 agreed statement of facts to a second indictment setting out the crimes
21 against humanity, some of the evidence which came in during the genocide
22 aspect of the case which dealt with some of the particularly gruesome
23 aspects of some of the crimes which was not repeated in the statement of
24 facts to which he pled guilty on those crimes, were in fact taken into
25 consideration in the sentencing. I just want your comments on that
2 MR. NICE: Yes. Can I go back to what I said earlier, and it's my
3 error for not perhaps making it adequately plain. The agreed statement of
4 facts dated the 9th of September -- signed and dated the 9th of September
5 of 1998 was terse in the extreme. I take an example. Counts 6 and 7,
6 "Goran Jelisic will plead guilty to Counts 6 and 7 and admit that, on or
7 about the 6th or 7th of May, 1992, he escorted an unknown male detainee
8 down a street near the Brcko police station and then shot him in the head
9 with a Scorpion pistol."
10 Now, that is the way individual offences were summarised. That
11 apart, there was no narrative giving an agreed version of background or
12 even foreground to these offences. And as I suggested at an earlier stage
13 this morning, the material here was far too limited, and, for assessment,
14 for purposes of guilt, it was the bare bones of what he was pleading to.
15 It wasn't an overall agreed version of facts on the basis of which the
16 Prosecution could present the case to the Trial Chamber, bearing in mind
17 its various duties.
18 That led to the presentation of the annex to which I have earlier
19 referred which was presented to the Chamber by a filing on the 29th of
20 September, and I'll just read it because I don't think it's going to be
21 before you. It says this: "In accordance with Judge Riad's request
22 during the Status Conference of the 2nd of September of the parties to
23 reach agreement on admitted and disputed facts, Jelisic has expressed an
24 intention to plead guilty."
25 Paragraph 2: "The Prosecution and Defence jointly submitted the
1 agreed factual basis for the guilty pleas."
2 Paragraph 3, and this is the only other paragraph: "In order to
3 assist the Trial Chamber in evaluating the factual basis for the guilty
4 pleas, the Prosecution submits excerpts from Prosecution witness
5 statements and interviews held with Jelisic on specific counts of the
6 amended indictment to which he intends to plead guilty as Annex 1, and a
7 supplementary report, complete witness statements, and relevant pages of
8 interviews held with Goran Jelisic are attached in confidential Annex 2";
9 so that immediately after the agreed but exiguous statement of facts, we
10 have this larger document. Now, it was never signed by the Defence,
11 that's true, but it was always claimed that it was the intention of the
12 Prosecution to present such material to the Chamber as may have been
13 required to flesh out those one or two lines that were in the agreed
14 statement of facts.
15 And can I then take you to page 27 of our respondent's brief --
16 I'm sorry, that's right. I'm looking at it in Mr. Guariglia's version so
17 I'm not familiar with where it appears in the binder. What happened on
18 the 19th of October, without complaint - we can find it at paragraph 4.6,
19 page 27 - is that I told the Chamber that there is this large document, a
20 bundle of witness statements served at the time of the guilty plea and to
21 support the plea, it is either witness statements or extracts from witness
22 statements both, and we will rely on without calling those witnesses as
23 part of the material for the sentencing purpose. That was not complained
25 In short, the parties all knew and agreed that the plea would be
12 Blank page inserted to ensure pagination corresponds between the French
13 and English transcripts.
1 dealt with without calling live evidence circumscribed to the particular
2 counts in the indictment and that we would rely on this written material.
3 So as to infection by material wider than the agreed statement of
4 facts, in response to Your Honour's particular question, first by
5 agreement and understanding, there was this body of written material to
6 which the Court could refer. That doesn't, of course, deal with the other
7 half of Your Honour's question: What about the trial? As I say, in
8 relation to that, one can trust the Chamber to have excised it from
9 consideration because they realised they had to.
10 JUDGE WALD: Thank you. I do have one question for Mr. Guariglia
12 You emphasised the Trial Chamber's discretion in sentencing
13 because so many of these cases have very individualised characteristics,
14 and you yourself contrasted Erdemovic from Mr. Jelisic.
15 I'm wondering, however, given the great emphasis that Mr. Clegg
16 placed on Tadic, which, it seems to me, is somewhat more similar than
17 Mr. Erdemovic, and conceding your argument that that alone -- that a Trial
18 Chamber doesn't have to look at what happened in every other case,
19 nonetheless, I would find it helpful if you would give me your argument or
20 impressions of why the sentence, which was changed by the Appellate
21 Chamber in Tadic, would merit only half the time given here.
22 Along with that would be the more abstract question: Is your
23 argument that two Trial Chambers in this Tribunal, given, for hypothesis'
24 sake, the same circumstances of crimes, the same youth, all the other
25 factors, that nonetheless they would be justified in giving quite
1 different sentences just based upon the way the evidence struck them?
2 MR. GUARIGLIA: Your Honour, as far as the first question is
3 concerned, it is dangerous to engage in an exercise of comparison of cases
4 without having at your disposal all of the elements of all the cases, and
5 to be in a position to determine, off the cuff, whether the culpability of
6 the perpetrators was the same. However --
7 JUDGE WALD: You [Realtime transcript read in error "I"] did it
8 with Erdemovic.
9 MR. GUARIGLIA: I did it with Erdemovic, as you said, and with
10 Tadic, I will do it off the cuff, to some extent.
11 We would submit that if, in Erdemovic, there seemed to be a
12 subjective difference, a difference in the subjective field, it is clear --
13 JUDGE SHAHABUDDEEN: May I ask that the transcript should be
14 corrected. We have, as against Judge Wald, this statement: "I did it
15 with Erdemovic." I believe she said, "You did it with Erdemovic."
16 MR. GUARIGLIA: Yes, indeed, Your Honour.
17 Going back to what I was about to say, between Erdemovic and
18 Jelisic, the argument can be made, and this is the Prosecution's position,
19 that there is a subjective difference. The perpetrators are different.
20 Between Tadic and Jelisic, we would submit there is a very
21 significant objective difference in the scope of victimisation in both
22 cases. In the case of Tadic, you have two killings and then Tadic's
23 participation in a number of events of beatings. In the case of the
24 appellant in these proceedings, you have the appellant actively engaged in
25 a significant number of killings, committed in the most brutal manner and
1 in the context a confined system of ill-treatment at the Luka camp, and
2 previously the police station. We think that the level of victimisation
3 is different between the two cases and that the Trial Chamber had the
4 authority to attach to that particular degree and intensity of
5 victimisation a different sentence than the one imposed in the Tadic
7 I don't know if that answers your question.
8 JUDGE WALD: Thank you.
9 MR. GUARIGLIA: As far as your second question is concerned, there
10 is no doubt -- let me put it this way: No doubt it would be desirable
11 that sentences from Trial Chambers in the International Tribunal in very
12 similar cases don't present fundamental disparities. However, some degree
13 of disparity is a natural consequence of the exercise of discretion by the
14 Trial Chambers and of the fact that the parameters offered by the Statute
15 and the Rules are broad parameters.
16 But at the same time that this appellate Court has said, for the
17 purposes of establishing errors of fact, that two reasonable Judges may
18 look at the same evidence with different eyes, and provided they move both
19 within the same scope of reasonable judicial activity, deference must be
20 given to the trier of fact.
21 We submit a similar conclusion may be reached in the case of
22 sentencing. Providing that Trial Chamber A has moved within the
23 parameters of the Statute and the Rules and has reasonably exercised its
24 discretion, yes, it may be that the sentence in a very similar case by
25 Trial Chamber B will be different; but provided both Trial Chambers act
1 reasonably, within the boundaries of their authority as granted by the
2 Statute and the Rules, those two sentences should remain undisturbed.
3 JUDGE WALD: Thank you.
4 MR. GUARIGLIA: Thank you.
5 JUDGE SHAHABUDDEEN: Mr. Guariglia, just to clear my mind on it
6 and because Erdemovic has been so frequently referred to, may I ask
7 whether your impression is the same as my recollection, my rather rusty
8 recollection, of the Erdemovic case.
9 Am I right in feeling that there are two things about that case:
10 One, Erdemovic gave himself up to the Tribunal at the time when the
11 Tribunal was not even aware of his existence or of the possibility of any
12 allegations being made against him; two, the Prosecution in fact, I
13 believe, conceded that he had acted under duress. The matter went to the
14 Court of Appeal on this basis, that for Erdemovic, it was argued that
15 duress was a complete defence. The Court of Appeal said, No, no, it is
16 not a complete defence. What can happen, however, is that duress may be
17 taken in mitigation. So the case assumed that posture when it went back,
18 and Erdemovic was given a five-year sentence.
19 Are those factors present in this case?
20 MR. GUARIGLIA: They are not, Your Honour, and that is the
21 position, that subjectively the cases are completely different.
22 JUDGE SHAHABUDDEEN: Mr. Clegg, you will finish by 1.00?
23 MR. CLEGG: I would hope to finish very soon after 1.00. But
24 could I ask for the indulgence of the Chamber for five minutes.
25 Mr. Jelisic has indicated he just wants to have a brief word with me.
1 It's difficult as I don't speak the same language, and if I could have
2 five minutes, I would still hope to finish comfortably before 1.15.
3 JUDGE SHAHABUDDEEN: We would like to accommodate Mr. Clegg. May
4 I have a moment to consult with colleagues.
5 [Appeals Chamber confers]
6 JUDGE SHAHABUDDEEN: My colleague, Judge Nieto, thinks that, in
7 principle, we ought to have the recess. I was under the assumption that
8 you will go on for some time after 1.00. About how long, even with the
9 five minutes' recess, how long would you be after 1.00?
10 MR. CLEGG: I would hope to conclude in under 15 minutes, and then
11 Mr. Babic will deal with the points that touch on the particular aspect of
12 the appeal which he has covered.
13 JUDGE SHAHABUDDEEN: We better recess then --
14 MR. CLEGG: Certainly.
15 JUDGE SHAHABUDDEEN: -- and we better recess now; is that it?
16 MR. CLEGG: Yes.
17 JUDGE SHAHABUDDEEN: So you can have your five minutes during the
18 recess period.
19 MR. CLEGG: That will certainly avoid any pressure of time that I
20 have with Mr. Jelisic.
21 JUDGE SHAHABUDDEEN: Yes. The court stands suspended.
22 --- Luncheon recess taken at 12.45 p.m.
1 --- On resuming at 2.34 p.m.
2 JUDGE SHAHABUDDEEN: The proceedings are resumed. I would like to
3 extend my deepest apologies for the delay.
4 Mr. Clegg.
5 MR. CLEGG: It's our submission that the Prosecution approach is,
6 frankly, unhelpful to this Tribunal. They argue that, and I quote, "The
7 alleged need to recognise a tariff for a sentence does not exist." As a
8 bold statement of fact, that is, we submit, completely unsustainable. We
9 venture to suggest that the reason why the Prosecution advances their
10 argument on that basis is because they recognise that no application of
11 any tariff can survive examination with the sentence passed in this case.
12 In order to illustrate what we submit is post-sentence diplomacy,
13 one is only to look at the argument that they advanced in the Celebici
14 Judgement that was to the exact reverse of that which was advanced today.
15 At paragraph 715 in the Celebici Judgement, the Prosecution made
16 the opposite submission, exactly the same as the one I advanced today and
17 directly contrary to the one they have advanced.
18 What they said was, the Prosecution submits that the Appeal
19 Chamber should determine, "Basic sentencing principles which will be
20 applied by the Trial Chamber. The Appeal Chamber notes the Prosecution
21 made similar submissions"; then gives detail of a further case before the
22 Appeals Chamber, arguing, and I quote, "That such principles would assist
23 in order to achieve consistency and even handedness in sentencing before
24 the Trial Chamber."
25 Those words, with respect, don't lie easily with the answer given
1 to Her Honour Judge Wald before lunch. Those arguments advanced by the
2 Prosecution in the Celebici case were, of course, advanced in an appeal
3 against sentence that could be sustained by an application of comparison
4 with the tariff as it has developed. And I do venture to suggest that the
5 adoption of a diametrically opposite stance today reflects the recognition
6 that this sentence is so out of step with the jurisprudence of this Court
7 and the Tribunal for Rwanda that they are, by adopting the stance they do,
8 acknowledging the paucity of their submission.
9 The Tadic Judgement at page 55 -- sorry, paragraph 55 on page 24
10 allowed the appeal - it was the only ground, as my memory serves me, upon
11 which the sentence was reduced on the merits as opposed to arguments about
12 when time should run -- allowed the appeal and reduced from 25 to 20 the
13 sentence for this reason: because it failed to adequately consider the
14 need for sentences to reflect the relative significance of the role of the
15 appellant in the broader context of the conflict in the former
17 The ground of appeal that I was advancing before the Appeal
18 Chamber in that case read as follows, that the Trial Chamber had fell into
19 error with respect to the need to develop a range of sentences based upon
20 the relative position of the accused and, I might add in addition to that,
21 the role that he played.
22 So we do, with respect, invite the Court to consider the response
23 of the Prosecution to our submissions on tariff as, at the very least,
24 being economical.
25 Curiously, when it came to the Erdemovic Judgement, the
1 Prosecution were only too happy to point out the tariff principle did not
2 apply. There is merit in their argument on that ground, and I acknowledge
3 that. The facts were entirely different. Had it not been for Judge Wald,
4 not one word would have been said by them about the Tadic Judgement, upon
5 which I relied heavily in my oral submissions.
6 What was said to Judge Wald was wrong. It is quite untrue to say
7 that Tadic was only convicted of two murders. The Appellant Chamber
8 reversed two acquittals for murder of the two policemen in the village in
9 question, the name which escapes me, whose throats Tadic had slit. But
10 that was, of course, in addition to the other murders that he had been
11 convicted of, including the five in the village of Jelisca. I apologise
12 for the almost inevitable mispronunciation of that name.
13 I would invite the Court to consider the original sentencing
14 judgement in Tadic to obtain a fair view of the crimes that Tadic had been
15 convicted of; to look at the conclusions of the appeal against conviction
16 which convicted him of a number of offences of which he had hitherto been
17 found not guilty; and then look at the appeal against sentence in order to
18 see whether or not there is any merit at all in the submission made that a
19 real or sensible distinction can be drawn between the two cases. We
20 confidently submit that if the Court were to take the trouble, as I know
21 it will, to look at those documents, then the Court will be inevitably
22 driven to the conclusion that no sensible distinction can be drawn.
23 It seemed inconsistent, with the way Judge Wald's question was
24 answered, to reflect upon what the Prosecution were themselves saying in
25 the Tadic Sentencing Appeal. What they were then taking to the Appeals
1 Chamber was, and I quote, "The respondent contends that in assessing the
2 circumstances relevant to the appellant, the Trial Chamber also considered
3 the brutality of the acts in which he personally engaged and his
4 willingness to take part in the ethnic cleansing which occurred in the
5 area," an argument advanced with all of the adjectives properly appended
6 to the conduct of this appellant today.
7 Rank, it was suggested in oral argument, was of no importance.
8 Indeed, it was suggested that the fact that Jelisic was of low rank or,
9 more accurately, no rank was not a matter to be taken into account. That
10 is entirely inconsistent with the view of this Appeals Chamber in the
11 Tadic Judgement. Of course they are right when they say that a person
12 must be punished for the crimes he has committed not the rank he held.
13 That isn't the reason why rank is distinguished in sentence.
14 Had Hitler been alive at the end of the war, the Court may be
15 confident that he would have received a heavier sentence than a member of
16 a single Einzatgruppen commando unit that was responsible for ethnic
17 cleansing in eastern Europe. Why? Hitler never killed anybody with his
18 own hands, so far as we know, but he would have received the ultimate
19 penalty because it was his position in the command structure of the Third
20 Reich that set in motion the acts that were put into place by others. It
21 is that position of command, not the fact that he never touched the hair
22 of any one Jew's head, that would have meant he should have paid and would
23 have paid the ultimate penalty.
24 The reason why rank commands a higher penalty is not because the
25 person of high rank is punished more for doing the same act, it is because
1 the fact that they are in a position of high rank which enables them to
2 influence affairs over a much wider ambit than somebody of low or no
3 rank. It is the use of that influence that is essential for any ethnic
4 cleansing programme to operate, and it is the use of it by men of rank
5 that commands higher sentences than mere foot soldiers.
6 It is, we respectfully submit, a distinction that the Prosecution
7 refuse to recognise for the same reason as they refuse to recognise the
8 need for a tariff because they know this sentence cannot survive
10 Just a word or two about the evidence before Mr. Babic deals with
11 the matters that he is going to.
12 The agreed factual basis is, of course, going to be fleshed out by
13 the evidence relating to the individual counts upon which he has pleaded.
14 I accept entirely what Mr. Nice says so far as that is concerned. But
15 insofar as the evidence embraces allegations that have not been the
16 subject of any admission of guilt and did not result in any conviction,
17 then they must be put out of the mind of the Trial Chamber when it turns
18 to sentence. Insofar as the evidence did, as it did at trial, embrace a
19 far wider criminal allegation, namely, of genocide, then we submit that
20 that ought to be ignored save and insofar as it is directly relevant to
21 the individual counts to which the accused has pleaded.
22 Finally, we do not accept the summary of evidence as presented by
23 Mr. Nice as either fair or accurate. It is redolent of problems for me to
24 select individual passages from the transcripts that point in the opposite
25 direction. We would just invite the Court to consider the evidence of six
12 Blank page inserted to ensure pagination corresponds between the French
13 and English transcripts.
1 witnesses not particularly long before coming to a decision as to the
2 effect of the witnesses to whom he spoke; they are DA, DE, DH, DK, DO, and
3 DQ. If the Court would glance at those transcripts, we would respectfully
4 submit that the interpretation put on them by Mr. Nice cannot fairly be
6 That is all I seek to say by way of reply, subject to the words of
7 Mr. Babic.
8 JUDGE SHAHABUDDEEN: Thank you, Mr. Clegg.
9 Mr. Babic.
10 MR. BABIC: [Interpretation] I shall try to respect the time limit
11 set by Your Honours and be as concise as possible.
12 We did not draw attention to an incorrectness in the sentence and
13 that is the killing of the Zahirevic brothers. In paragraphs 37 and 38 of
14 the judgement, Goran is alleged to have killed both Zahirevic brothers,
15 and this is also contained in the disposition; the second amended
16 indictment alleges that Goran Jelisic killed only one Zahirevic brother,
17 and this is also contained in the agreed statement of facts signed by both
18 parties. So I appeal to the Appeals Chamber to bear this fact in mind and
19 also to take into consideration when determining the sentence.
20 Secondly, we accept with satisfaction the position of the
21 Prosecution that the document to which the Defence -- the document
22 referred to was not signed by the Defence, though earlier on it was
23 claimed that it was a joint document. This is also stated in paragraph
24 18, footnote 9. So I ask Your Honours also to take that into
1 Of special interest to me is why the Prosecution has not referred
2 to the Defence witnesses. (redacted)
4 (redacted). If the primary aim of
5 the judgements of this Tribunal is to achieve reconciliation, then it was
6 the duty of the Defence and of the Prosecution to bear that in mind to
7 show that people can still live together, that they can do some good
8 things to each other, and that that can serve as a basis for their joint
9 life in the future.
10 The statement by the Prosecution that they never said that Jelisic
11 was the camp commander is something that can easily be disproved. Both
12 the first and the second amended indictment contained Counts 50 and 51,
13 and those counts say: "Goran Jelisic, acting as camp commander of the
14 Luka camp, created an atmosphere of fear, killing, mistreating, and
15 threatening detainees, whereby he subjected them to extreme psychological
16 trauma, degradation, and fear of physical injury and death." These counts
17 and descriptions and allegations were later reversed by the Prosecution,
18 and the amended indictment does not contain them, and we are glad to
19 accept that the Prosecution agrees in the fact that Jelisic was not a camp
21 The Prosecution claims today there was nothing more than a plea of
22 guilt, but let me add that regarding the agreed statement of facts between
23 the Prosecution, which was represented by other Prosecutors and the
24 Defence, a number of meetings were held, and only once all those facts had
25 been thrashed out and when the Prosecution accepted the plea of Goran
1 Jelisic as agreed, only then was that agreement signed. Therefore, the
2 second document that the Prosecution is relying on cannot disclaim this
3 first joint document.
4 So one could put it this way: For the moment, we'll agree, but
5 we'll act as if we are working on the basis of the previous document,
6 which is quite different. And I must say, with all due respect, that that
7 is not fair, and it is also not in accordance with the instructions given
8 by His Honour Judge Jorda to the parties at the Status Conference held on
9 the 23rd of September, 1998, when this agreement was being negotiated. So
10 I would appeal to Your Honours to refer to the transcript of that Status
12 And the last point that I would like to make I would like to do in
13 private session, please.
14 [Private session]
15 [Open session]
16 JUDGE SHAHABUDDEEN: We're now in public session.
17 I take it that closes the arguments --
18 MR. CLEGG: It does.
19 JUDGE SHAHABUDDEEN: -- for Mr. Jelisic.
20 MR. CLEGG: It does.
21 JUDGE SHAHABUDDEEN: Then before the Appeals Chamber withdraws to
22 consider its decision, there are perhaps one or two points I might
23 mention. One has to do with the skeleton arguments submitted by the
24 Defence. We have referred to that, but since we will be in need of it
25 possibly for the preparation of a judgement, would you help to clarify the
1 position as to whether that document has been formally laid over or not?
2 Is it part of the record?
3 MR. CLEGG: It is part of the record, I assume, because it has
4 been circulated to all parties.
5 JUDGE SHAHABUDDEEN: Fine, then that is part of the record.
6 The other thing I want to refer to concerns your reference to the
7 Celebici Judgement and to that part of it which dealt with cumulative
8 convictions. I think the Prosecution said that they might want to file a
9 statement, but my understanding of the position was that they would wish
10 to file a statement only if you pursued the point, and I don't recall that
11 the point was pursued. Was it?
12 MR. CLEGG: It was pursued in the sense that having raised the
13 matter, my reading of the judgement would indicate that it was applicable
14 to the convictions in this case, and therefore we would pursue it.
15 JUDGE SHAHABUDDEEN: Good. Then we'll ask the Prosecution what
16 time they would judge to be convenient for the filing of their statement
17 on the point.
18 MR. YAPA: Thank you, Your Honour. As my learned friend mentions
19 that it was taken up as a matter of appeal now, to respond to the
20 applicability of the judgement to the issues in this case, we would say we
21 would require about ten days' time.
22 JUDGE SHAHABUDDEEN: Ten days?
23 MR. YAPA: Yes.
24 JUDGE SHAHABUDDEEN: Mr. Clegg, thereafter what period would suit
25 you for a reply?
1 MR. CLEGG: Ten days.
2 JUDGE SHAHABUDDEEN: Ten plus ten, that's twenty. Okay, then,
3 that is settled. All right.
4 Then I come to the last thing on my shopping list which has been
5 presented to me by the secretary, and it has to do, Mr. Clegg, with your
6 offer to comply with the Scheduling Order of the 30th of January calling
7 upon both sides to file public versions of certain documents. There are
8 two documents in respect to which public versions have not yet been filed
9 by the Defence. One is the appellant's brief in the appellant's -- the
10 cross appellant's appeal dated 7 August 2000, and the other one is his
11 reply dated 6 October 2000.
12 MR. CLEGG: I have very helpfully been provided with an unmarked
13 copy of each of those by the registry yesterday. We will file a redacted
14 copy within ten days.
15 JUDGE SHAHABUDDEEN: Ten days. All right, let it be so written.
16 That, then, concludes the hearing, and the Bench wishes to express
17 thanks to both sides for very able and helpful arguments.
18 We will reserve decision, and you will be both notified in due
20 --- Whereupon the Appeal Proceedings adjourned at
21 3.03 p.m.
12 Blank page inserted to ensure pagination corresponds between the French
13 and English transcripts.