1 Friday, 14
2 [Oral Argument]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 10.38 a.m.
6 JUDGE SHAHABUDDEEN: Mr. Registrar, will you
7 please call the case next on the list.
8 THE REGISTRAR: Case number IT-94-1-A and
9 94-1-A bis, the Prosecutor versus Dusko Tadic.
10 JUDGE SHAHABUDDEEN: Mr. Tadic, you're in
11 communication with us? You're hearing me?
12 THE ACCUSED: Yes.
13 JUDGE SHAHABUDDEEN: May we take the
14 appearances. Mr. Clegg, this is your appeal?
15 MR. CLEGG: It is, Your Honour. I appear
16 with Mr. Livingston for the --
17 THE INTERPRETER: Microphone, please.
18 MR. CLEGG: A technological failure. I
19 appear with Mr. Livingston for the appellant, Dusko
21 MR. YAPA: May it please Your Honours.
22 Upawansa Yapa. I appear for the Prosecution with
23 Mr. Michael Keegan.
24 JUDGE SHAHABUDDEEN: Now, the Appeals Chamber
25 is hearing the appeal brought by Mr. Tadic. The appeal
1 arises out of a judgement issued by the Chamber on
2 15 July last year. In that judgement, the Appeals
3 Chamber found the appellant guilty on certain counts on
4 which he had been previously acquitted. The Chamber
5 said, I think with the consent of both sides, that
6 sentencing on those counts would be left for a further
8 Eventually, after certain steps had been
9 taken, with the consent of both sides, the Appeals
10 Chamber referred the matter for sentencing by a Trial
11 Chamber. That Trial Chamber imposed sentences on the
12 11th of November. Mr. Tadic now appeals from the
13 sentences imposed. Mr. Clegg is appearing for him.
14 I would just seize the convenience of the
15 moment to itemise what I believe are the principal
16 grounds of appeal to be argued by Mr. Clegg.
17 Telegraphically, the first ground has to do
18 with excessive weight being placed by the Trial Chamber
19 on deterrence as a factor. The second ground has to do
20 with the alleged need to develop a sentencing tariff.
21 The third ground has to do with the question whether
22 Mr. Tadic had made a substantial cooperation with the
23 Prosecution. The fourth ground has to do with the
24 question whether a crime against humanity was
25 intrinsically more serious in law than a war crime.
1 The fifth ground of appeal has to do with the
2 sentencing practice of the former Yugoslavia.
3 Mr. Clegg, have I referred, with the kind of
4 brevity which I foreshadowed, the main grounds of
6 MR. CLEGG: Your Honour has.
7 JUDGE SHAHABUDDEEN: Then would it be
8 convenient if we were to stick to that serialisation of
9 the grounds?
10 MR. CLEGG: It would, but if I could take
11 them in a slightly different order.
12 JUDGE SHAHABUDDEEN: Please yourself. By all
13 means. Now, the next thing to do under our procedures
14 today, I understand there have been conversations and
15 that in the result the appellant, that's you,
16 Mr. Clegg, would be speaking for 45 minutes. That is
17 your time slot.
18 MR. CLEGG: No longer.
19 JUDGE SHAHABUDDEEN: No longer. How much
20 time would you require?
21 MR. CLEGG: Well, if I say 45 minutes, I
22 shall take all the credit that is due to me if I finish
24 JUDGE SHAHABUDDEEN: Very good. Then we look
25 forward precisely to your doing that.
1 Then the Prosecutor would take how long?
2 MR. KEEGAN: Certainly less than half an
3 hour, Your Honour.
4 JUDGE SHAHABUDDEEN: Very good.
5 Then, Mr. Clegg, you would wish to reply.
6 MR. CLEGG: I would, but I don't anticipate
7 it would be for more than 10 minutes.
8 JUDGE SHAHABUDDEEN: Yes. That errs on the
9 right side of law, because I have you down for 15
11 So, Mr. Clegg, would it be convenient for you
12 to take the floor at this time?
13 MR. CLEGG: It would. I sense that I'm in
14 front of a Tribunal where brevity will never be
16 The first matter that I would like to
17 re-emphasise to the Court is that obviously what is now
18 effectively a combined appeal, we rely obviously upon
19 the written and oral submissions that were made so far
20 as the appellant's personal circumstances were
21 concerned, the issue as to whether time should be
22 allowed for the period he spent in custody back in
23 Germany and the submissions to be made in relation to
24 the minimum period and other general mitigating factors
25 that were aired when the matter first came before this
1 Trial Chamber. I have no intention, obviously, of
2 repeating those submissions, but I formally adopt them
3 for this hearing.
4 I would like to turn first, if I may, to the
5 question of the desirability of setting out appropriate
6 tariff of sentencing in this Tribunal, and I begin by
7 regretting slightly that I ever used the word "tariff"
8 when I first raised this matter many, many months ago.
9 A better word might have been a "range of sentence,"
10 because the word "tariff" does tend to carry with it
11 the implication of a rigid format of sentencing, within
12 narrow brackets. That was never my intention to
13 advance to this Appeals Chamber, the sort of tariff
14 that one finds in the federal courts of the United
15 States of America. That was never my intention.
16 What I intended to submit was that there
17 ought to be a sensible range of sentences passed by the
18 respective Trial Chambers of the International
19 Tribunal, whereby the sentencing, when looked at from
20 one case to another, across the board, gives a broad
21 consistency of approach.
22 It's my basic submission that consistency is
23 consistent with justice and inconsistency breeds a
24 genuine sense of grievance on the part of defendants.
25 It is perhaps very appropriate that today
1 that the judgement was given with two of the Appeals
2 Chamber sitting in the case of Kupreskic. It's my
3 submission that the Trial Chamber in that case
4 perfectly illustrated the desirability of having a
5 range of sentences reflecting the different culpability
6 of individuals who were all charged with what was
7 described in the judgement as being one of the most
8 vicious illustrations of man's inhumanity to man; a
9 description that tragically can be applied to many
10 instances of criminal conduct in the former Yugoslavia
11 over the periods of the conflict.
12 But despite the gravity of the crimes
13 committed in that case, one can see, when one looks,
14 albeit only briefly, as I've only had the opportunity
15 to see it since 9.30 this morning, but when one looks
16 at the respective roles of the people who were
17 convicted before the Trial Chamber in that case, one
18 can see how that is reflected in the ultimate sentences
19 passed by the Court.
20 It's our submission that if you were to
21 compare the role, the seniority, and the crimes of
22 which Dusko Tadic stands convicted today against those
23 that were found in that case, one would see that there
24 was a real substantial disparity.
25 The disparity is most marked when one looks
1 at the position that Tadic held. No one suggests for
2 one moment that he ever had any position of power or
3 influence. He had no position of command. He was not
4 giving orders to others. He was, tragically, in the
5 same position as hundreds, if not thousands of other
6 men in that area of Europe caught up in this conflict,
7 influenced and overtaken by the propaganda to which he
8 had been subjected, and embarking upon a series of
9 criminal acts that, had he not been in the position
10 that he was and subject to the influences that he was,
11 he would never have committed at all.
12 One of the ironies of sentencing in a war
13 crimes tribunal is that one is almost invariably
14 sentencing people who, had they not been caught up with
15 conflict, would have lived their lives without
16 committing any crime at all, and that is also a factor
17 when one turns to consider the value of deterrence.
18 But our primary submission is that the
19 position that Tadic held, his role, his responsibility,
20 his position in the hierarchy, cannot justify a
21 sentence of the length that he now faces, and when
22 compared with the sentences passed earlier today, one
23 can, in our submission, detect a real and serious
25 The importance is that to have any sense of
1 justice, the sentencing powers of this Tribunal must be
2 exercised equitably, not only between individual people
3 in different cases but against the background of the
4 whole conflict, and it is in this way that the
5 authorities from Nuremberg, after the Second World War,
6 are important. They're important because they are the
7 only yardstick that this Appeals Chamber has to the
8 approach of sentencing in an international forum
9 following a war.
10 The one message that emerges from the
11 Nuremberg sentencing is that those who had positions of
12 power and influence received the highest sentences and
13 that the lower down the hierarchy one came, the lower
14 the sentence became. I won't take the Court through
15 all the cases we have cited in our written submissions,
16 but I know the Court has seen them, has read them, and
17 will reflect on them.
18 But if one considers that in Nuremberg we
19 were considering crimes against humanity that involved
20 participation in the Holocaust, perhaps the most evil
21 crime ever embarked upon by one nation against another
22 race. When we look at the sentences that were passed
23 there, we see that sentences of 25 years would equate
24 to people who had a senior rank in the government or
25 the army. There was, in fact, nobody tried in
1 Nuremberg of an equivalent rank to Dusko Tadic.
2 It's our submission that he had the
3 distinction, of course, of being the first person ever
4 to be tried before the Trial Chamber here in The Hague,
5 and therefore the Trial Chamber did not have the
6 advantage that this Appeals Chamber has today to look
7 at other cases, including the case of Kupreskic decided
8 this morning, in order to try to assess his culpability
9 against that of other people before this Tribunal. But
10 we submit that he has had the sentence pitched far too
11 high to begin with.
12 If we reflect for one moment, if one were to
13 countenance against people who were, in effect, the
14 foot soldiers and who had no command responsibility
15 sentences of 25 years and then seek, in one's mind, to
16 aggregate that sentence up, what, I ask rhetorically,
17 would be the appropriate sentence of somebody who had
18 junior command, local command, national command, and
19 overall strategic command of the war. When one
20 reflects on that, we submit that there is force in the
21 submission that proper and due consideration to an
22 appropriate range of sentence has not been given here.
23 We invite the Appeals Chamber, with respect,
24 to reflect on that. We urge them, those who were not
25 involved in the trial of Kupreskic, to look at that
1 case and to ask oneself rhetorically, if we could pick
2 up the facts of this and put it into that case, what
3 sentence would be passed for somebody with the position
4 and involvement of Dusko Tadic.
5 I remind the Court that in Kupreskic, the
6 crimes there were compared to the very worst death
7 camps in Nazi Germany of Dachau and others, and also
8 the tragedies in Soweto and My Lai.
9 So that is our first simple, short but
10 fundamental submission that a proper application of the
11 range of sentence has not been applied in this case,
12 and understandably so because he was the first ever to
13 be convicted.
14 The matter can be put, perhaps, in just one
15 phrase: We say that there should be comparative
16 culpability and comparative -- comparison, sorry,
17 between the sentences passed in different Trial
19 Moving now to the slightly discrete area of
20 whether deterrence is a legitimate part of the approach
21 of the Trial Chamber in sentencing in cases such as
22 this, we would urge the Court to conclude that
23 deterrence so far as people at this level cannot
24 sensibly be assumed to be effective. It is possible
25 that those in command may be deterred by the thought
1 that they will ultimately be brought to justice. But I
2 do ask rhetorically whether it is sensible to envisage
3 that the foot soldiers are capable of being deterred by
4 anything that happens in this Court. I say that, of
5 course, with due deference to the Court, but I reflect
6 for a moment, does anyone believe that had there been a
7 series of trials after the First World War that the
8 camp guards at Dachau or the SS officers in the
9 einzatgruppen would be deterred by that in the Second
10 World War? Is it to be seriously imagined that those
11 involved in the awful massacres in Rwanda would have
12 been deterred by doing so had this Court been able to
13 act more speedily in seeking to bring to justice those
14 involved in these crimes in the area of former
16 I venture to suggest that deterrence has a
17 very limited role in sentencing in a domestic criminal
18 jurisdiction. If one looks at all the comparative
19 studies that are done, it by no means indicates that
20 deterrence has any effect in a local criminal
21 jurisdiction. If one looks at Europe, the countries
22 that have the highest crime rate have the highest
23 sentences. Deterrence doesn't seem to work.
24 Ironically, the countries that have the lowest crime
25 rate have lower sentences. If you take that in
1 comparison to the United States, there is no
2 comparative study that indicates that states where the
3 death penalty is passed has a significantly lower death
4 rate than those where there is no death penalty. When
5 one examines the historical and empirical research,
6 there is nothing to indicate that deterrence works on a
7 local level. All the more so on an international
9 Before deterrence could ever operate, one
10 would have to ensure that those who were the foot
11 soldiers in some future conflict knew of the sentencing
12 of this Court. In reality, how would that ever be
13 achieved? There can be no deterrence without
15 And the very fact that international law
16 tends to reflect crimes committed in conflict that are
17 driven by racial and religious bigotry means that they
18 are much less susceptible to deterrence than crimes
19 motivated out of greed or avarice.
20 We invite the Court to reflect on what has
21 clearly been a conflict of opinion in this arena as to
22 the value of deterrence as a tool of sentencing
23 policy. I remind the Court, of course, of the
24 dissenting judgement of Judge Robinson and also the
25 dissenting judgement of Judge Li. The Court will have
1 seen, in the documents we have submitted, the article
2 by Bing Bing Jai.
3 JUDGE SHAHABUDDEEN: Mr. Clegg, are you still
4 busy with the ground of deterrence or are you moving
5 now to the other ground about the comparison between
6 war crimes and crimes against humanity?
7 MR. CLEGG: I am moving now into that ground
8 and I am very grateful for the assistance of the
10 JUDGE SHAHABUDDEEN: May I ask you one
12 MR. CLEGG: Yes.
13 JUDGE SHAHABUDDEEN: Do I understand you
14 correctly to be submitting this: Not that deterrence
15 is not an admissible factor, but that in your
16 submission the Trial Chamber gave too much prominence
17 to it?
18 MR. CLEGG: Yes. May I now move, as I
19 already had, to the distinction, if any, between a
20 crime against humanity and a war crime. And I've
21 already alluded, rather earlier than I should, to those
22 two dissenting judgements in the article which I know
23 the Court will have had an opportunity to read
25 In our submission, any analysis of sentencing
1 policy ought not to permit there to be a distinction
2 between the penalty passed as a result of the label
3 that the lawyers put on the actions deemed to be
5 In all domestic jurisdictions that I am aware
6 of, the sentence will normally vary for the same act
7 physically done by a criminal dependent upon his mental
8 state at the time he commits the act. So I think in
9 almost all jurisdictions, a man who kills, intending to
10 kill, will receive an effectively longer sentence than
11 one who kills in an act of passion. The difference is
12 the sentence reflects the culpability of the accused as
13 reflected by his mental state at the time he did the
15 Here the distinction is that one is seeking
16 to distinguish in sentence conduct which is, firstly,
17 exactly the same conduct physically, however it is so
18 described, and carries with it exactly the same mental
19 state of mind. The only distinction is the description
20 given to it by the lawyers. In our submission, that is
21 a false premise for distinguishing on sentence.
22 If one reflects for a moment, I think it was
23 the words of the President of the Trial Chamber said
24 punishment should fit the offender. There's an
25 expression in the English criminal law that punishment
1 should fit the crime. Those are words differently
2 describing the sensible jurisprudential object of
3 punishing somebody for what he has done. In our
4 submission, to seek to distinguish between the same
5 conduct done in the same state of mind, differently so
6 described between crimes against humanity and war
7 crimes, goes against that very sensible and fundamental
9 I ask the question which I anticipate, that I
10 know the President asked rhetorically in an earlier
11 judgement: How does one Judge or assess the
12 distinction between the two? What is the yardstick by
13 which to increase or decrease the sentence depending
14 upon verdict? In our submission, there can be no
15 logical or sensible balancing factor to differentiate
16 between those two crimes.
17 It's of course within the knowledge of this
18 Court that the new International Criminal Court will
19 not distinguish between the two offences in, at any
20 rate, the proposal that is currently being considered.
21 Serious war crimes and crimes against humanity.
22 The only assistance that one has before this
23 Tribunal was established is again back in the cases at
24 Nuremberg following the Second World War. And as one
25 can see in the summary of cases set out in our written
1 submissions, no distinction was drawn at Nuremberg
2 between those two crimes, crimes against humanity and
3 war crimes, and it is, we submit, in reality, a
4 distinction with no difference.
5 So I think, finally, on that third ground of
6 appeal --
7 JUDGE SHAHABUDDEEN: Mr. Clegg, suppose your
8 friend on the other side were to make this submission,
9 that a second count in respect of what appears to be
10 the same act may be intended to protect a distinct
11 societal interest. Would that be supportive of the
12 kind of distinction against which you are now arguing?
13 MR. CLEGG: We would submit not. Any
14 sentencing policy that is intending to protect a
15 society or societorial interest could only do so by
16 deterrence, obviously because one is dealing with the
17 sentencing process after the actual act has occurred.
18 That would tend to imply that if deterrence did work,
19 it would work in a way that distinguished between war
20 crimes and crimes against humanity.
21 So taking the submission to an absurd length,
22 one would have to contemplate a future war criminal in
23 a future conflict saying to himself, "Well, if I do
24 that, that will only be a war crime. So I prefer to do
25 that rather than do something else which may be
1 classified as a crime against humanity, thereby
2 attracting a higher sentence." The absurdity of such a
3 concept, in our submission, illustrates how the idea of
4 seeking to protect a societorial interest, which
5 obviously everybody would seek to do, cannot, in fact,
6 be effective by passing a higher sentence after the
7 event. It can only operate through deterrence and
8 would have to assume an understanding of the
9 distinction which has evaded many lawyers let alone
10 ordinary people. So I think that would be my
12 Can I turn very briefly and almost in passing
13 to the last two topics. On reflection, it seemed to
14 Mr. Livingston and I that we had submitted, in relation
15 to the issue of substantial co-operation, already fully
16 before this Appeals Chamber in the last hearing before
17 the appeal -- I'm sorry, the Trial Chamber.
18 May I correct myself. There's been so many
19 hearings before so many different Tribunals in this
21 The question of substantial co-operation was
22 fully argued before the Trial Chamber after this Appeal
23 Chamber remitted it for sentencing in relation to the
24 matters that Mr. Tadic had been convicted of following
25 the appeal by the Prosecutor. We rely on those
1 submissions, of which you have a transcript. Having
2 read them, we don't think that there's anything we can
3 usefully add to those.
4 Secondly, so far as the comparative
5 sentencing position of domestic Yugoslav law, that was
6 fully ventilated before this Appeals Chamber in the
7 appeal that was argued at the end of the appeal against
8 conviction, again with one caveat. We don't wish to
9 reargue that but rely on your earlier submissions.
10 The only caveat that we would add is that our
11 analysis of the Yugoslav law would tend to indicate
12 that certainly under local Yugoslav law there is no
13 distinction to be drawn between crimes against humanity
14 and war crimes. And I really pray that in aid on our
15 other head.
16 I'm helpfully reminded by Mr. Livingston that
17 on the question of societorial interest raised by the
18 President of the Appeals Chamber, the dissenting
19 judgement of Judge Robinson, at page 9, deals with a
20 submission that is put far more eloquently than I could
21 have managed, and if I could pray that in aid in
22 response to that rhetorical question that may well have
23 been coming from Mr. Keegan.
24 Unless I can assist the Court any further,
25 those are our submissions.
1 JUDGE SHAHABUDDEEN: Thank you very much,
2 Mr. Clegg.
3 The Prosecution.
4 MR. YAPA: Mr. Keegan will make the
6 JUDGE SHAHABUDDEEN: Mr. Keegan.
7 MR. KEEGAN: Thank you, Your Honours.
8 Having in mind Your Honour's comments with
9 respect to the prior sessions and the briefs that have
10 been filed, I will endeavour to keep my remarks limited
11 to the issues raised today by counsel.
12 Beginning first with this question of the
13 creation of sentencing brackets or a range of
14 sentencing perhaps is the term we may now use, we rely
15 primarily upon our submissions already made in our
16 brief, Your Honour, about the impossibility of doing
17 so. It is, of course, an interesting academic question
18 to raise about the possibility of doing so, but that is
19 the essence of the argument; is it possible for this
20 Tribunal or any Tribunal, for that matter, to, in the
21 first instance, proclaim what their considerations with
22 respect to the range of possible sentence will be
23 before they've even considered cases.
24 As we suggest in our submission, this
25 Tribunal is, in fact, in the process of doing that
1 which counsel now argues for, and they are doing so in
2 the appropriate way, on a case-by-case basis. As this
3 is a new endeavour, it will, of course, take time, and
4 one cannot try and bring forward systems that are
5 developed in any particular national jurisdiction which
6 have the benefit of centuries of judicial precedent
7 upon which to draw in saying one can describe what may
8 be the appropriate range of sentences.
9 In the ultimate instance, the range of
10 sentence is set in the Statute, anywhere between no
11 punishment and life imprisonment, and in between that
12 sentences will be determined on a case-by-case basis as
13 they are.
14 JUDGE SHAHABUDDEEN: Mr. Keegan, Mr. Clegg
15 made the point that this was the first conviction. At
16 the point of time when that conviction was recorded,
17 there would have been no question of there being any
18 range of sentences, but is your friend entitled to take
19 the position that today, in arguing his client's case,
20 he's entitled to refer to such comparative sentences as
21 now exist?
22 MR. KEEGAN: Yes, Your Honour, he would be
23 entitled to do so had that been, in fact, what he did.
24 But that's not, in fact, what he's done. His ground of
25 appeal is that this Appeal Chamber should declare a
1 range of sentences based on apparently some set of
2 objective criteria, and the --
3 JUDGE SHAHABUDDEEN: Didn't he -- I don't
4 reproduce his exact words, but did he not modify that
5 opening argument a little?
6 MR. KEEGAN: Yes, Your Honour, he did.
7 Primarily we would submit, obviously, that having had
8 the benefit of review of our submissions and perhaps of
9 some indications from questions from the Bench in prior
10 hearings. It still raises the ultimate question
11 raised, whether the appellant has satisfied his burden
12 in raising this ground, and that is the focus that we
13 are using in our submissions here, and that is why I
14 say it is important to look at what was the ground of
15 appeal. The original ground of appeal was not: "We
16 want to object to this sentence as being an abuse of
17 discretion by comparing it in detail to the facts and
18 circumstances of other cases before this Tribunal or
19 perhaps the Rwanda Tribunal, in arguing that there is
20 in that comparison proof of an abuse of discretion."
21 The ground of appeal was: "This sentence was unfair
22 because there wasn't some pre-existing sentencing
23 tariff, now range of sentences, by which one could
24 judge what was the sentence if the accused were
25 convicted ahead of time." That, in essence, was the
2 THE INTERPRETER: Would the counsel please
3 slow down.
4 MR. KEEGAN: -- the argument. If one were
5 now to follow the argument made today, they still fail
6 on their burden because they have failed to meet the
7 necessary requirements for that burden.
8 There has been no real comparison between the
9 facts and circumstances of this case and of the case,
10 for example, in Kupreskic or indeed of Jelisic, who was
11 sentenced to 40 years for a series of murders, or any
12 other case. Rather, a vague reference that there was a
13 sentence given in a particular case which we submit
14 should draw your attention. Well, in fact, if
15 attention was drawn to that, one could see that in that
16 case there was a sentence given to the accused, the now
17 convicted person Drago Josipovic, for one count of
18 murder under Article 5 of 15 years. That sentence is
19 entirely consistent with the sentences handed down in
20 this case.
21 We'd also note that the sentence to a count
22 of persecution in that case was 25 years. Entirely
23 consistent with the sentence given here. In that
24 instance to the accused Vladimir Santic.
25 Also in this argument, the appellant raises
1 the question of his position, that he had no position
2 in the events which occurred in Prijedor. Well, that
3 in fact is not the case if one details the facts as
4 determined by the Trial Chamber and in fact by the
5 accused's own words in his work report which is part of
6 the record on this appeal, part of the record of the
7 trial, where he claims himself to have been an
8 important person and a voluntary participant in trying
9 to create a greater Serbia; the fact that he was
10 allowed to enter into these camps, commit his various
11 crimes and the murders, that he apparently did hold
12 some sway over members of the military. The Trial
13 Chamber found in the Haskici murders that this accused
14 appeared to be in control of the group of soldiers. So
15 it is not the case that this accused had no position;
16 he had a very real position to his victims and it was,
17 indeed, a position of power.
18 The problem with some sort of criteria is how
19 would one develop it. What ranks would be sufficient?
20 What positions would be sufficient? We submit that
21 it's impossible to do so under the types of crimes and
22 conditions which existed in the conflict that this
23 Tribunal is considering.
24 The appellant would argue that he is nothing
25 more than the same as hundreds, if not thousands of
1 people who were caught up in the conflict in the former
2 Yugoslavia. Well, that, of course, is not the case at
3 all. There were not hundreds or thousands of people
4 who committed the intentional acts, crimes against
5 humanity and war crimes, that this accused committed.
6 So it is, indeed, a fallacious argument to raise such a
7 defence to his sentence. There were not hundreds or
8 thousands of people who took advantage of the
9 situation, which is what this accused did, to commit
10 crimes for his own benefit or for his own base
12 The appellant also raises the question of the
13 comparison of sentences here to sentences given at the
14 Nuremberg trials. We would submit that that is not
15 entirely a clear and appropriate comparison. The
16 Nuremberg trials, and specifically the trials to which
17 the appellant refers to, was a very specific set of
18 trials which were conducted in a very specific
19 situation; that is, a post-World War II tribunal set up
20 by the allied powers to try those responsible for the
21 crimes committed by the axis powers. The whole issue
22 of how that sentencing was done, of course, was based
23 on the principles considered relevant for sentencing
24 which existed at that time and given that situation, a
25 world war which had gone on for several years.
1 The appellant, of course, does not refer to
2 any of the other trials which were conducted by other
3 tribunals after the Second World War in which many
4 individuals of the same status as this appellant were
5 tried and convicted and, in instances, given more
6 serious sentences than this appellant has received for
7 similar crimes.
8 The last question raised was whether due
9 consideration was given to an appropriate range of
10 punishments in this case. We would submit that the
11 appellant has failed to provide any credible facts or
12 indication from the Trial Chamber's sentencing decision
13 which would indicate that they did not give the
14 appropriate consideration to the full range of
15 sentences, and therefore they have failed to satisfy
16 their burden on this appeal.
17 With respect to the issue of deterrence
18 generally, it would appear that, in fact, the appellant
19 is speaking in what can only be considered contrary
20 positions. The opening statement was that, in fact,
21 deterrence might work for leadership, but is it
22 sensible to envisage that foot soldiers are capable of
23 being deterred. Well, in the very first instance, if,
24 in fact, deterrence does work for the leadership in
25 future situations, there will be no foot soldiers, so
1 we do not even need to raise that issue or get to that
3 If we were to follow the logic of the
4 appellant's argument, there would be no reason for this
5 Tribunal to even be here because apparently deterrence
6 is not valid, period, and if deterrence isn't
7 appropriate, then why are we even here? Because that
8 certainly is one of the bases for the establishment and
9 for the purpose of this Tribunal, to not only punish
10 those who perpetrated crimes but to assist in
11 bringing --
12 JUDGE SHAHABUDDEEN: Mr. Keegan, Mr. Clegg
13 indicated that he was not taking the position that
14 deterrence was not an admissible factor. So perhaps
15 you might take that into account when framing your
16 submission that deterrence is not to be taken into
17 account at all. I don't think his submissions went as
18 far as that.
19 MR. KEEGAN: Yes, Your Honour. If, in fact,
20 that is the position, although that was not the first
21 part of his argument -- in fact, it appeared to be the
22 contrary, but his final statement in response to your
23 comment was, indeed, that -- if that is the case and
24 the appellant does agree that deterrence is a viable
25 factor, then we stand on our prior submission that they
1 again have failed to provide any facts or clear
2 indication from the judgement of the Trial Chamber that
3 the Trial Chamber gave undue weight. As we submitted
4 in our original brief, they ignored the actual language
5 of that sentencing judgement which indicated that, in
6 fact, deterrence was only one factor considered, and it
7 gives no indication that deterrence was even the main
8 factor. Rather, if there was a main factor, it would
9 appear to be the individual circumstances of this
10 appellant's crimes and circumstances.
11 With respect to the question of crimes
12 against humanity versus war crimes and whether there
13 should be a distinction in terms of sentencing, with
14 respect, it is not the lawyers who label the
15 seriousness of crimes, rather it is a determination by
16 society based on particular interests that it deems
17 necessary to protect that make a distinction between
19 Mr. Clegg said that, in fact, differences in
20 sentencing are based not on the particular aspects of
21 crime in the sense of how they may be categorised by
22 society but rather on the mental state of the
23 perpetrator and not on a distinction between their
24 labels. Well, in fact, that's not accurate. It is the
25 case in many national jurisdictions that, for example,
1 acts of wilful killing will, indeed, carry different
2 penalties by virtue of the nature of the victim, for
3 example. In many jurisdictions, the murder of a
4 policeman or a public official is deemed to be a more
5 serious act than a wilful killing of another citizen by
6 virtue of the victim's position. So --
7 JUDGE SHAHABUDDEEN: That is where the law
8 prescribes a certain differential in the seriousness
9 between crimes. Does the law here prescribe any
10 difference in seriousness between crimes?
11 MR. KEEGAN: Yes, Your Honour. The law may
12 prescribe, or may state, in fact, in many
13 jurisdictions, that the position of the victim is an
14 aggravating factor. It is not the case in our
15 jurisdictions that it automatically mandates a more
16 serious sentence. That is the question here.
17 Our submission is that this emphasis on
18 penalty is, in fact, an incomplete analysis of the
19 issue. The fact that in jurisdictions if it is a
20 public official that is murdered does not automatically
21 warrant a more severe sentence, the point is it is
22 considered, all things being equal, a more serious
23 crime than another wilful killing, and that, in
24 essence, we would submit, was the position of the Trial
25 Chamber here following the Erdemovic decision. The
1 language, if we may, was "... all things being equal,"
2 a crime against humanity is a more serious offence than
3 an ordinary war crime. That, we believe, is, in fact,
4 an accurate statement of the intent and, if we can say,
5 belief of the International Community at this stage.
6 The references to the question of how were
7 crimes against humanity considered in Nuremberg, we
8 think, again is an incomplete analysis because it
9 completely ignores the development of the international
10 society over the last 50-plus years, and it may be that
11 crimes against humanity being a relatively new
12 invention after the Second World War, that in
13 considering it in the context of that conflict and in
14 those tribunals, the analysis referred to the nature of
15 the acts of the perpetrators which warranted an
16 interpretation of the term "humanity" to mean the
17 nature of the acts, that is, a violation of what would
18 be considered humane behaviour, and not a reference to
19 the fact that the crime in and of itself is violative
20 of humanities, that is, the collective being, the
21 collective society's interest.
22 We would suggest that over the last 50 years
23 that focus has actually changed, and it is, in fact,
24 now the case that the International Community views
25 crimes against humanity as victimising all of society
1 and not just a particular civilian population involved,
2 because such crimes impact on all of us, and the very
3 nature of the International Community's involvement in
4 the conflict in the former Yugoslavia, in Rwanda and
5 elsewhere, are evidence of that impact, if you will, of
6 those crimes.
7 So we believe that, in fact, with due respect
8 to Judge Robinson, his citation to the analysis of
9 Dr. Fuad Schwalb in 1946 may not, in fact, be the
10 appropriate analysis at this time, that the vision of
11 crimes against humanity by the International Community
12 has changed and developed and therefore does warrant a
13 determination that, all things being equal, a crime
14 against humanity is a more serious crime than an
15 ordinary war crime.
16 That being said, there is nothing in that
17 statement, nor in that principle that then mandates
18 different punishments as a matter of law. What it does
19 state is that it is within the discretion of a court to
20 say that in a particular case where an accused has been
21 convicted of both, the court believes a more serious
22 sentence should be imposed for the crimes against
23 humanity than the war crimes. It doesn't mean to say
24 that that has to be the situation in every case, nor
25 that it's mandated as a matter of law.
1 I believe one of the examples used by Judge
2 Robinson would be the question of murder, both as a war
3 crime and as a crime against humanity, and that if a
4 sentence to life imprisonment was given for murder as a
5 crime against humanity, it would automatically mandate
6 a lesser sentence for a war crime of murder. Well, we
7 don't believe that that is necessarily the case. It
8 can be, for example, that a war crime in a particular
9 instance may, in fact, be more severe or serious in a
10 given case than a crime against humanity. A war crime
11 which was comprised of a series of murders, for
12 example, of prisoners or other protected persons might,
13 in fact, warrant more severe punishment and be a more
14 serious crime than a crime against humanity of
15 non-violent persecution, where the persecution took
16 the -- the actus reus of the persecution was the denial
17 of fundamental rights of employment or religion, et
19 JUDGE SHAHABUDDEEN: Is that a helpful
20 parallel? Wouldn't you need to focus on the commission
21 of the same act? What Mr. Clegg is saying is that if
22 you bring two different counts charging a crime against
23 humanity and a war crime in respect to the same act,
24 that there should be no difference in penalty. That is
25 how I understand him.
1 MR. KEEGAN: Yes, Your Honour. But first we
2 must address this issue of whether -- which was his
3 initial point -- there should be no distinction. If it
4 is accepted that there can be a distinction and there
5 should be a distinction in the eyes of the
6 International Community, then we're only dealing with
7 the question of appropriate punishment. Therein lies
8 the question of whether it is within the discretion,
9 the lawful discretion, of a Chamber to say that a
10 particular crime or crimes committed which amount to
11 both violations of Article 5 and Article 2, or
12 Article 3, warrant a more serious punishment for the
13 Article 5 violation than the Article 2 or Article 3,
14 the principle being the Chamber is trying to recognise
15 this distinction, this societal principle, that a crime
16 against humanity is recognised as a more serious crime,
17 all other factors being equal.
18 So in that instance, in fact, we suggest that
19 with all the other principles recognised, that is a
20 lawful exercise of discretion and this appellant has
21 failed to address that particular aspect and has failed
22 to satisfy his burden that there was an abuse by this
23 Trial Chamber in its determination.
24 Unless we can assist you any further, Your
25 Honour, those would be our submissions.
1 JUDGE SHAHABUDDEEN: Just to compare notes.
2 I understand you to be saying that whatever was the
3 position in 1945, there has since then been a
4 progression in the evolution of customary international
5 law so that today a crime against humanity is seen as
6 being directed to a societal interest which is distinct
7 from the societal interests to which a war crime is
8 directed, and that accordingly, the penalty for the
9 former should be greater than the penalty for the
10 latter in the normal case, all things being equal.
11 MR. KEEGAN: Yes, Your Honour. I would just
12 qualify that by saying that a distinction in penalty is
13 not an abuse of discretion by a court given the state
14 of international law at this time.
15 JUDGE SHAHABUDDEEN: Thank you. Thank you.
16 Then, Mr. Clegg, would it be convenient for
17 you to respond.
18 MR. CLEGG: Yes.
19 JUDGE SHAHABUDDEEN: Our slot says 15
20 minutes, but you were good enough to indicate a lesser
22 MR. CLEGG: I will try to be good to my
24 Can I just remind the Court that we never
25 sought to ask you to declare a tariff of sentencing
1 like the Supreme Court -- like the Federal Court in
2 America has. What we asked you to do was to develop,
3 have regard to the need to develop a tariff. In other
4 words, it is an ongoing process. And there is, we
5 submit, a very important distinction between those two
6 propositions. We never said that you should, as it
7 were, declare some rigid list of sentences to be
8 applied irrespective of the justice of the case across
9 the board to people charged before this Tribunal. Too
10 rigid an adherence to a tariff can result in as much
11 injustice as having no regard to comparative sentencing
12 at all.
13 All we're seeking to say is there ought to be
14 a broad comparison between the sentences passed in
15 different cases, and, therefore, we say that this
16 Appeal Chamber now has an advantage that the Trial
17 Chamber did not have in being able to look at
18 comparative sentences which they could not do because
19 there was nothing to compare it with since 1945. That
20 advantage, which you have and they didn't, allows one
21 to look at comparable cases, and I rely particularly on
22 the one today, in order to reflect upon whether the
23 sentencing here has been pitched too high.
24 There is nothing wrong in that approach. We
25 would submit it's the perfectly sensible approach for
1 this Appeal Chamber to adopt, and to do anything else
2 would leave an appellant with a sense of injustice. If
3 this Appeal Chamber were to say, "We close our eyes to
4 what other Trial Chambers have done by way of
5 sentencing and will not look at it," it would be, we
6 suggest, an absurd consequence of this process.
7 I'm not sure upon what material the
8 respondent relies to say there are not hundreds or
9 thousands of people in the former Yugoslavia who would
10 have committed war crimes. I invite the Court just to
11 reflect on the historical events in that region. The
12 Court may well conclude from the number of camps and
13 inevitably the number of people that must have been
14 employed to work in the camps, the collection of
15 people, and the awful genocide that occurred, that
16 there must, indeed, have been hundreds, if not
17 thousands, of people who were involved in one degree or
18 another in these crimes. It's perhaps not possible to
19 give any quantified number to them at this stage in
20 history. But if one goes back to the Second World War,
21 it is undoubtedly the case that tens of thousands of
22 perfectly ordinary citizens were involved in putting
23 into effect the Nazi policy called "The Final Solution"
24 by which Hitler determined that all the Jews of Europe
25 should be killed.
1 It is a sad and remarkable historical fact
2 that in times of war, ordinary people will become
3 embroiled in activity that they would never have
4 countenanced at any other time in their life.
5 We do rely upon the Second World War cases
6 because there is nothing else. There's been nothing
7 since that until now. And the respondents say that
8 there has been a development of customary international
9 law, and I'm now dealing with the distinction to be
10 drawn in sentence between war crimes and crimes against
11 humanity, but without relying upon any case, decision,
12 article, book published between 1945 and the beginning
13 of the conflict in the former Yugoslavia in order to
14 identify such a development.
15 In our submission, there is nothing to
16 indicate that societorial interests in 1945 were any
17 less in protecting or seeking to protect the Jews of
18 Europe than the societorial interests of the Muslims of
19 the former Yugoslavia. And we don't accept, with
20 respect, the proposition that the societorial interests
21 of the Jews at the end of the Second World War were
22 somehow abrogated in way they would not have been now.
23 The whole thrust of Nuremberg was to seek to effect
24 just reparation for what had happened to those people.
25 Unless I could assist the Appeal Chamber any
1 further, those are our submissions.
2 [Trial Chamber confers]
3 JUDGE SHAHABUDDEEN: We're obliged to
4 counsel. We appreciate the assistance we have had from
5 both sides. This has been a relatively brief
6 presentation, and it would be appropriate if the
7 decision were to follow speedily. I think we should be
8 in a position to give you a decision fairly quickly,
9 but I will not now announce the date. We will go into
10 consultations and we will alert you to that eventuality
11 in due course.
12 For the moment, therefore, we would retire.
13 The Appeals Chamber will retire to consider its
14 decision. Unless there is any other matter which
15 demands attention, the Appeals Chamber will, therefore,
16 stand adjourned.
17 --- Whereupon the hearing was adjourned
18 at 11.55 a.m. sine die