690. The Prosecutor submits that General Krstic should receive consecutive life sentences for each crime for which he is found guilty, pursuant to Article 24 of the Statute and Rule 101 of the Rules.¹⁴⁵⁸ The Defence submits that General Krstic must be acquitted on all counts of the indictment and thus made no submission on sentencing.¹⁴⁵⁹

691. The sentence is to be determined by reference to the relevant provisions of Articles 23 and 24 of the Statute and Rules 87 (C) and 101 of the Rules of Procedure and Evidence. The Trial Chamber should also consider the general sentencing principles and practices of the Tribunal, as well as those of the ICTR.¹⁴⁶⁰
     A. The Applicable Provisions

692. Articles 23 and 24 of the Statute and Rules 87(C) and 101 contain sentencing provisions. These provisions determine the objectives of sentencing, the factors to be taken into consideration for the determination of a sentence and the manner in which a sentence should be imposed.

693. Article 23 (1) of the Statute states that “the Trial Chamber shall pronounce judgements and impose sentences and penalties on persons convicted of serious violations of international humanitarian law”. The practice of the Tribunal, based on these provisions, reflects two objectives of a sentence: the need to punish an individual for the crimes committed and the need to deter other individuals from committing similar crimes.¹⁴⁶¹

694. Article 24 (1) of the Statute provides that “the penalty imposed by the Trial Chamber shall be limited to imprisonment” and further states that the appropriate term of imprisonment is to be determined by “recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia”. Article 24 (2) provides for the Trial Chambers to “take into account such factors as the gravity of the offences and the individual circumstances of the convicted person”. These statutory provisions are to be read in conjunction with Rule 101, which provides that the Chamber shall take into account the factors mentioned in Article 24 (2) as well as such factors as any aggravating or mitigating circumstances and the general practice of the courts in the former Yugoslavia.¹⁴⁶²

695. Rule 101 states also that the Trial Chamber must take into consideration “any penalty imposed by a Court of any State on the convicted person for the same act ” and which has already been served, as well as the period, if any, during which the convicted person was detained in custody pending surrender to the Tribunal or pending trial or appeal. On the other side, Rule 87(C) grants the Trial Chamber discretion to either impose a penalty “in respect of each finding of guilt” or a single sentence reflecting the totality of the criminal conduct of the accused.¹⁴⁶³ In the case of multiple sentences, the Trial Chamber shall indicate whether they are to be served consecutively or concurrently (Rule 101 (c)).¹⁴⁶⁴

696. In accordance with the relevant sentencing provisions, the ICTY and the ICTR have developed a number of factors that should be examined when determining a proper sentence: the general practice on prison sentences in the former Yugoslavia, the gravity of the crimes and the individual circumstances of the convicted person.
     B. General Sentencing Principles
     1. General Practice on Prison Sentences in the former Yugoslavia

697. It is well established that the general sentencing practice of the former Yugoslavia is not binding on the Tribunal, although the Tribunal should have regard to it.¹⁴⁶⁵ Sentencing by the courts of the former Yugoslavia was based on the provisions of Chapter XVI, “Criminal Acts Against Humanity and International Law”¹⁴⁶⁶ and Article 41(1)¹⁴⁶⁷ of the SFRY criminal code. The death penalty could be imposed for war crimes and genocide, while a minimum prison sentence of ten years and a maximum of fifteen years were stipulated as the penalty to be imposed for aggravated murders. Article 38(2) of the SFRY criminal code permitted courts to hand down a sentence of twenty years in prison in lieu of the death penalty.¹⁴⁶⁸ In 1998, Bosnia and Herzegovina abolished the death penalty and introduced in its place a long-term imprisonment of 20-40 years “for the gravest forms of criminal offences […] committed with intention”.¹⁴⁶⁹ In accordance with the recommendation of the Secretary General’s Report, the Tribunal cannot impose the death penalty.¹⁴⁷⁰ “The penalty imposed by the Trial Chamber shall be limited to imprisonment” (Article 24-1 of the Statute). The sentence imposed by the Trial Chamber in this case thus falls near the range of sentence afforded by the FRY for the most severe war crimes .
     2. Gravity of the Crime

698. The gravity of the offence is a primary factor to be taken into account in imposing a sentence. The Trial Chamber in the Celebici case stated that it was “by far the most important consideration, which may be regarded as the litmus test for the appropriate sentence”.¹⁴⁷¹ The seriousness of the crime must weigh heavily in the sentence imposed irrespective of the form of the criminal participation of the individual.¹⁴⁷² Taking into consideration the seriousness of the crime avoids excessive disparities in sentences imposed for the same type of conduct.¹⁴⁷³

699. The Prosecutor argues that the gravity of crimes with which General Krstic may be convicted is self-evident and that genocide “constitutes the crime of crimes , which must be taken into account when deciding the sentence”.¹⁴⁷⁴ The Prosecutor also argues that the number of victims and their suffering are factors to be taken into account in assessing the gravity of the crimes committed.

700. Assessing the seriousness of the crimes is not a mere matter of comparing and ranking the crimes in the abstract. It has been argued that crimes against humanity and war crimes are equally serious and that “there is in law no distinction between the seriousness of a crime against humanity and that of a war crime [ …]”.¹⁴⁷⁵ No Chamber has yet ruled on the ranking of crimes in a case where an individual has been found guilty of genocide. It can also be argued, however, that genocide is the most serious crime because of its requirement of the intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such. In this sense, even though the criminal acts themselves involved in a genocide may not vary from those in a crime against humanity or a crime against the laws and customs of war, the convicted person is, because of his specific intent, deemed to be more blameworthy. However, this does not rule out the Trial Chamber’s duty to decide on the appropriate punishment according to the facts of each case. Genocide embodies a horrendous concept, indeed, but a close look at the myriad of situations that can come within its boundaries cautions against prescribing a monolithic punishment for one and all genocides or similarly for one and all crimes against humanity or war crimes.¹⁴⁷⁶ A murder, whether qualified as a crime against humanity, a war crime or an act of genocide, may be a graver offence than imposing serious bodily or mental harm upon an individual. In this regard, the Trial Chamber ascribes to the approach taken by the Appeals Chamber that “[t]he level [of penalty] in any particular case [be] fixed by reference to the circumstances of the case." ¹⁴⁷⁷

701. Thus, the Trial Chamber must assess the seriousness of the crimes in the light of their individual circumstances and consequences. This presupposes taking into account quantitatively the number of victims and qualitatively the suffering inflicted on the victims.¹⁴⁷⁸

702. In this sense, the Trial Chamber agrees with the Prosecutor that the number of victims and their suffering are relevant factors in determining the sentence¹⁴⁷⁹ and that the mistreatment of women¹⁴⁸⁰ or children is especially significant in the present case. However, the Prosecutor also contends that the “overwhelming scope of the crimes”, the manner in which the crimes were committed, the fact that some of the victims were elderly men and young boys, the fact that many of the executed were blindfolded and had their hands tied behind their back when they were murdered, and the “long-term damage to their surviving family members and the Bosnian Muslim community” are aggravating circumstances.¹⁴⁸¹ As such, the Prosecutor does not draw any clear line between factors relevant to assess the gravity of the crimes committed and factors relevant as aggravating circumstances .

703. The Trial Chamber considers that the circumstance that the victim detainees were completely at the mercy of their captors,¹⁴⁸² the physical and psychological suffering inflicted upon witnesses to the crime,¹⁴⁸³ the "indiscriminate, disproportionate, terrifying” or “heinous” means and methods used to commit the crimes¹⁴⁸⁴ are all relevant in assessing the gravity of the crimes in this case.¹⁴⁸⁵ Appropriate consideration of those circumstances gives “a voice” to the suffering of the victims.¹⁴⁸⁶
     3. Personal Situation of the Accused

704. The Trial Chamber must also take into account factors pertaining to the “individual circumstances of the convicted person” (Article 24-2 of the Statute), to "bring to light the reasons for the accused's criminal conduct" and to assess “the possibility of rehabilitating the accused."¹⁴⁸⁷ The prospect of rehabilitating the accused and the extent to which the accused is a great danger to the community as a whole should be taken into account.¹⁴⁸⁸ Thus, in general, factors peculiar to the person who committed the crimes, and not those pertaining to the crimes committed, are considered as aggravating or mitigating circumstances.

     (a) Aggravating Circumstances

705. The Statute and the Rules do not stipulate which factors are to be considered as aggravating circumstances. In finding whether there are any aggravating circumstances , the Trial Chamber proceeds with caution.¹⁴⁸⁹ Factors identified as potentially aggravating by the Trial Chamber are the level of criminal participation, the premeditation and the motive of the convicted person .

     (i) Criminal Participation

706. The Prosecutor argues that General Krstic’s “direct, conscious and deliberate participation in creating and furthering the criminal plan as the Chief of Staff and Commander of the Troops which committed the offences, which evidences his intent and willingness to participate in the commission of the crimes, serves as an aggravating factor”. The Prosecutor argues that General Krstic’s “penultimate command after General Mladic, and/or the fact that he was in a position to order the prevention , cessation or punishment” of the crimes serve as aggravating factors.¹⁴⁹⁰

707. The Trial Chamber has already examined the criminal responsibility of the accused in order to decide on his guilt. The same elements should not be reviewed a first time as a constitutive element of the crime and a second time as an aggravating circumstance.

708. Direct criminal participation under Article 7 (1), if linked to a high-rank position of command, may be invoked as an aggravating factor. In determining a sentence, both Tribunals have mentioned the three most direct forms of participation , “planning, ordering, instigating”, as possible aggravating circumstances in the case of a highly placed accused.¹⁴⁹¹ So it is in the case of genocide. Because an accused can commit genocide without the aid and co-operation of others, provided he has the requisite intent, a one- man genocidal agent could be viewed differently from the commander of an army or the president of a State, who has enlisted the resources of an army or a nation to carry out his genocidal effort. The Trial Chamber finds that the direct participation of a high level superior in a crime is an aggravating circumstance, although to what degree depends on the actual level of authority and the form of direct participation .

709. A high rank in the military or political field does not, in itself, lead to a harsher sentence. But a person who abuses or wrongly exercises power deserves a harsher sentence than an individual acting on his or her own. The consequences of a person's acts are necessarily more serious if he is at the apex of a military or political hierarchy and uses his position to commit crimes.¹⁴⁹² It must be noted though that current case law of the Tribunal does not evidence a discernible pattern of the Tribunal imposing sentences on subordinates that differ greatly from those imposed on their superiors.¹⁴⁹³

     (ii) Premeditation and Motives of Crimes

710. The Prosecutor also argues that the “premeditation involved in the genocide and deportation is clearly an aggravating circumstance in the case, given General Krstic’s critical role in planning this massive crime”.¹⁴⁹⁴

711. Premeditation¹⁴⁹⁵ may "constitute an aggravating circumstance when it is particularly flagrant” and motive "to some extent [is] a necessary factor in the determination of sentence after guilt has been established."¹⁴⁹⁶ . When a genocide or a war crime, neither of which requires the element of premeditation, are in fact planned in advance, premeditation may constitute an aggravating circumstance .¹⁴⁹⁷ Premeditated or enthusiastic participation in a criminal act necessarily reveals a higher level of criminality on the part of the participant.¹⁴⁹⁸ In determining the appropriate sentence, a distinction is to be made between the individuals who allowed themselves to be drawn into a maelstrom of violence, even reluctantly, and those who initiated or aggravated it and thereby more substantially contributed to the overall harm. Indeed, reluctant participation in the crimes may in some instances be considered as a mitigating circumstance.

712. The Trial Chamber agrees with the Prosecutor on the relevance of premeditation as an aggravating factor in the abstract but, based on the sequence of General Krstic’s delayed participation in the genocidal scheme initiated by General Mladic and others , finds it not applicable to the situation.

     (b) Mitigating Circumstances

713. Neither the Statute, the Rules nor the jurisprudence of the Tribunals define “mitigating” circumstances.¹⁴⁹⁹ A definition of what is a mitigating circumstance is provided in fact by the SFRY Criminal Code. Article 42(2) of the SFRY Criminal Code stated that the judge may determine whether "there are mitigating circumstances which are such that they indicate that the objective of the sentence may be achieved equally well by a reduced sentence." Mitigating circumstances, concomitant or posterior to the crimes , vary from case to case. The Prosecution submits that there are no mitigating circumstances in the present case.¹⁵⁰⁰ However, the Trial Chamber has the discretion to consider any factors it considers to be of a mitigating nature.

     (i) Mitigating Circumstances Concomitant with the Commission of the Crimes

714. Indirect participation is one circumstance that may go to mitigating a sentence . An act of assistance to a crime is a form of participation in a crime often considered less serious than personal participation or commission as a principal and may, depending on the circumstances, warrant a lighter sentence than that imposed for direct commission .¹⁵⁰¹ Similarly, in some cases, forced participation in a crime can be a mitigating circumstance. The jurisprudence of the Tribunal established that, while duress¹⁵⁰² cannot afford a "complete defence to a soldier charged with crimes against humanity or war crimes in international law involving the taking of innocent lives",¹⁵⁰³ it may be taken into account as a mitigating circumstance. The Trial Chamber may also take into account the particular personal circumstances of the accused at the time the crimes are committed, if they illustrate the character and the capacity of the convicted person to be reintegrated in society. For instance, the fact that an accused has no prior convictions for violent crimes may be considered relevant .¹⁵⁰⁴ In contrast, personality disorders ("borderline, narcissistic and anti-social characteristics") are not relevant factors,¹⁵⁰⁵ although significant mental handicap¹⁵⁰⁶ can constitute a mitigating circumstance. Good character¹⁵⁰⁷ , "keen sense for the soldiering profession", or "poor family background" in combination with youth and an "immature and fragile" personality are also elements that may constitute mitigating circumstances.¹⁵⁰⁸

     (ii) Mitigating Circumstances Posterior to the Commission of the Crimes

715. The behaviour of the accused after commission of the criminal acts is also relevant to the Trial Chamber’s assessment of the appropriate sentence. The behaviour of the accused in the proceedings instigated against him is of particular importance . The fact that an accused is co-operating with the court, or that he or she voluntarily surrendered, admits guilt and expresses remorse before convictions are all relevant factors and can constitute mitigating circumstances provided the accused is acting knowingly and sincerely.¹⁵⁰⁹

716. The only mitigating circumstance explicitly provided for in Rule 101(B)(ii) is co-operation with the Prosecutor. "The earnestness and degree of co-operation with the Prosecutor decides whether there is reason to reduce the sentence on these grounds".¹⁵¹⁰ This co-operation often becomes a question of the quantity and quality of the information provided by the accused.¹⁵¹¹ The providing of statements by the accused, which elucidate the details of the crimes or implicate other persons, may be considered a mitigating circumstance.¹⁵¹² Such statements may increase the speed of a trial.¹⁵¹³ Co-operation that continues during the hearings may also be relevant.¹⁵¹⁴ In this regard, the Prosecution emphasises the fact that General Krstic gave a voluntary statement but that the information he provided was not wholly true.¹⁵¹⁵ In contrast, the “health" of the convicted person may also be a mitigating circumstance and the Defence stressed the bad health of General Krstic throughout the trial.¹⁵¹⁶

717. The Trial Chamber turns now to determine the appropriate sentence to be imposed upon General Krstic in view of the factors examined above: the general sentencing practice of the former Yugoslavia for persons convicted of genocide, crimes against humanity and war crimes, the gravity of the crimes committed by General Krstic and the existence and the weight of any aggravating and/or mitigating circumstances. The Trial Chamber has already alluded to the fact that genocide, being the gravest offence under Yugoslav law, would have permitted its highest sentence, up to forty years, and that the sentence will fall near that range.
     C. Determination of General Krstic’s Sentence

718. General Krstic was 47 years old at the time of Srebrenica. At the beginning of the ten fateful days, which are 10 to 19 July 1995, he held the position of Chief of the VRS Drina Corps Staff and, during the ten days, he was promoted to the rank of commander of the VRS Drina Corps. As a military professional, General Krstic was well aware of the extent of his obligations laid out in the military codes of the former JNA and then of the VRS. He was congratulated for the manner in which he launched the military attack on Srebrenica. On 2 December 1998, when he was arrested by SFOR, he was in command of the VRS 5th Corps in Sokolac. Since that date, he has been detained in the UN Detention Unit in Scheveningen at The Hague in the Netherlands.

719. The Trial Chamber found that General Krstic participated in two criminal plans , initially to ethnically cleanse the Srebrenica enclave of all Muslim civilians and later to kill the military aged men of Srebrenica. For his participation in these crimes, General Krstic has been found guilty of murder (under Article 3), persecutions (under Article 5) and genocide (under Article 4). The commission of those crimes would have justified the harshest of sentences in the former Yugoslavia .

720. The extreme gravity of the crimes committed by General Krstic is established by their scale and organisation and the speed with which they were perpetrated in a ten day period. The Trial Chamber has already described in detail how all Bosnian Muslims in Srebrenica were uprooted, how up to 25,000 Bosnian Muslim women, children and elderly persons were expelled toward Bosnian Muslim controlled territory and how 7,000 to 8,000 Bosnian Muslim men and boys were executed in the most cruel manner . The Trial Chamber notes the physical and psychological suffering inflicted on the victims and the obvious psychological suffering of the survivors. The survivors lost their male family members; three generations of Muslim men from the Srebrenica area disappeared in a single week. To date, most of the women and children survivors have not been able to return to their homes and many suffer what is now known as the “Srebrenica Syndrome”: an inability to get on with their lives because of the lack of definite news on the fate of their lost sons, husbands and fathers.¹⁵¹⁷

721. As to the role of the accused, the Trial Chamber has affirmed General Krstic’s conscious and voluntary participation in the crimes of which he has been found guilty . General Krstic held a high rank in the VRS military hierarchy and was even promoted after the perpetration of the aforementioned crimes. At the time of the crimes, he was third, then second in command after General Mladic. In this regard, the Trial Chamber finds that the fact that General Krstic occupied the highest level of VRS Corps commander is an aggravating factor because he utilised that position to participate directly in a genocide.

722. The Trial Chamber also notes that the conduct of General Krstic during the course of the trial has not been altogether forthcoming. General Krstic testified under oath before the Trial Chamber. While this could be viewed as a sign of co -operation with the Tribunal, the evidence clearly established that he put up a false defence on several critical issues, most notably, his denial that he or anyone from the Drina Corps was involved in the forcible transfer of Muslim women, children and elderly from Potocari; the date upon which he became commander of the Drina Corps, or became aware of the mass executions. General Krstic’s manner was one of obstinacy under cross-examination. He continually refused to answer directly or forthrightly legitimate questions put to him by the Prosecution or even Judges. Overall, his conduct during the proceedings evidences a lack of remorse for the role he played in the Srebrenica area in July 1995.

723. The Trial Chamber finds no other relevant circumstances. Although sympathetic to General Krstic’s discomfort throughout the trial because of medical complications he suffered,¹⁵¹⁸ the Trial Chamber considers that this circumstance is not related to the objectives of sentence.

724. The Trial Chamber’s overall assessment is that General Krstic is a professional soldier who willingly participated in the forcible transfer of all women, children and elderly from Srebrenica, but would not likely, on his own, have embarked on a genocidal venture; however, he allowed himself, as he assumed command responsibility for the Drina Corps, to be drawn into the heinous scheme and to sanction the use of Corps assets to assist with the genocide. After he had assumed command of the Drina Corps, on 13 July 1995, he could have tried to halt the use of Drina Corps resources in the implementation of the genocide. His own commander, General Mladic , was calling the shots and personally supervising the killings. General Krstic’s participation in the genocide consisted primarily of allowing Drina Corps assets to be used in connection with the executions from 14 July onwards and assisting with the provision of men to be deployed to participate in executions that occurred on 16 July 1995. General Krstic remained largely passive in the face of his knowledge of what was going on; he is guilty, but his guilt is palpably less than others who devised and supervised the executions all through that week and who remain at large . When pressured, he assisted the effort in deploying some men for the task, but on his own he would not likely have initiated such a plan. Afterwards, as word of the executions filtered in, he kept silent and even expressed sentiments lionising the Bosnian Serb campaign in Srebrenica. After the signing of the Dayton Accords , he co-operated with the implementers of the accord and continued with his professional career although he insisted that his fruitless effort to unseat one of his officers , whom he believed to have directly participated in the killings, meant he would not be trusted or treated as a devoted loyalist by the Bosnian Serb authorities thereafter. His story is one of a respected professional soldier who could not balk his superiors’ insane desire to forever rid the Srebrenica area of Muslim civilians , and who, finally, participated in the unlawful realisation of this hideous design .

725. The Prosecutor submits that General Krstic should be sentenced to consecutive life sentences for each count of the Indictment under which General Krstic is found guilty. However, in view of the fact that General Krstic is guilty of crimes characterised in several different ways but which form part of a single campaign or strategies of crimes committed in a geographically limited territory over a limited period of time, the Trial Chamber holds it preferable to impose a single sentence, bearing in mind that the nearly three years spent in the custody of the Tribunal is to be deducted from the time to be served.¹⁵¹⁹

726. In light of the above considerations, the Trial Chamber sentences General Krstic to Fourty six years of imprisonment.

      

     V. DISPOSITION

727. Based upon the facts and the legal findings as determined by the Trial Chamber and for the foregoing reasons, the Trial Chamber:

FINDS Radislav Krstic GUILTY of:

Genocide;

Persecution for murders, cruel and inhumane treatment, terrorising the civilian population, forcible transfer and destruction of personal property of Bosnian Muslim civilians;

Murder as a violation of the Laws and Customs of War;

SENTENCES Radislav KRSTIC to Fourty six years of imprisonment and STATES that the full amount of time spent in the custody of the Tribunal will be deducted from the time to be served.

Done on second of August 2001 in English and French, the English text being authoritative .

At The Hague, The Netherlands

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Judge Almiro Rodrigues
Presiding

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Judge Fouad Riad

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Judge Patricia Wald