1 Friday, the 15th October, 1999
2 [Open session]
3 --- Upon commencing at 10.02 a.m.
4 JUDGE MCDONALD: I'll ask the clerk to please
5 call the case.
6 THE REGISTRAR: This is IT-94-1-Tbis-R117,
7 the Prosecutor versus Dusko Tadic.
8 JUDGE MCDONALD: May I have the appearances
9 for counsel, please.
10 The Prosecution.
11 MR. YAPA: May it please Your Honours. I
12 appear for the Prosecutor with Ms. Brenda Hollis and
13 Mr. Michael Keegan.
14 JUDGE MCDONALD: Fine. And your name is.
15 MR. YAPA: I'm Mr. Upwansa Yapa.
16 JUDGE MCDONALD: Thank you, Mr. Yapa.
17 And for the Defence, please.
18 MR. CLEGG: William Clegg, appearing with
19 John Livingston for the Defence.
20 JUDGE MCDONALD: Thank you very much.
21 Let me give an introduction to just where we
22 are and what we will be doing today.
23 On May 7th, 1997, Trial Chamber II, then
24 consisting of Judge Ninian Stephen, Judge Lal Chand
25 Vohrah, and myself found Dusko Tadic guilty on nine
1 counts, guilty in part on two counts, and not guilty on
2 20 counts.
3 With respect to 11 of those 20 counts, the
4 Trial Chamber found, by a majority, that the charges
5 brought under Article 2 of the Statute of the Tribunal
6 were inapplicable at all relevant times in opstina
7 Prijedor because it had not been proved that the
8 victims were protected persons within the meaning of
9 the Fourth Geneva Convention.
10 With respect to the charges that formed the
11 basis of three of the 20 counts, the Trial Chamber
12 found that the evidence did not support a finding of
13 guilt beyond reasonable doubt.
14 Pursuant to appeals by both the Prosecution
15 and the Defence against Trial Chamber II's opinion and
16 judgement, the Appeals Chamber entered its judgement on
17 July 15th, 1999. The Appeals Chamber found that the
18 victims referred to in Counts 8, 9, 12, 15, 21, 29, and
19 32 of the indictment were protected persons, as
20 required under the applicable provisions of the Geneva
21 Convention. In addition, the Appeals Chamber concluded
22 that the requisite elements of the underlying offences
23 charged in Counts 29, 30, and 31 were satisfied beyond
24 reasonable doubt. Accordingly, the Appeals Chamber
25 found Dusko Tadic guilty of these nine counts.
1 The Appeals Chamber initially deferred
2 sentencing on the additional counts to a later stage
3 but subsequently remitted sentencing to a Trial Chamber
4 to be designated by the President of the Tribunal.
5 This Trial Chamber is now responsible for determining
6 the appropriate sentence to be imposed on Dusko Tadic
7 in relation to Counts 8, 9, 12, 15, 21, 29, 30, 31, and
9 To aid in this determination, the Trial
10 Chamber has before it the sentencing briefs filed by
11 the parties on September 30th, 1999. In addition,
12 pursuant to a request from counsel for the Defence, the
13 Trial Chamber requested the Registrar to have a report
14 prepared by the commander of the detention unit on the
15 behaviour of the accused during the time he has spent
16 in custody.
17 The Trial Chamber also received from the
18 Defence a request for leave to file the appellant's
19 reply to cross-appellant's assessment of material with
20 respect to the question of Dusko Tadic's cooperation
21 with the Prosecution. Leave to file that motion is
22 hereby granted, and the Trial Chamber has already
23 ordered the Prosecution to file the confidential
24 material referred to in this reply.
25 That material was filed last night at about
1 6 p.m., it's a large stack, about six inches, I
2 believe, and we have received that, and I presume that
3 counsel for Defence have received it as well.
4 Also the report from the commander has been
5 filed, and I presume that counsel for the Defence have
6 received that and counsel for the Prosecution. Very
8 The parties have agreed that the Prosecution
9 will proceed first -- pardon me. Have you not received
10 it, sir?
11 MR. CLEGG: We have not received it, but I
12 was shown it just before the Court sat and readied.
13 It's, mercifully, only about half a page in length, so
14 I'm perfectly content to continue in those
16 JUDGE MCDONALD: This is my copy, and I have
17 not marked on it, so you may have mine and I'll share
18 it with the Judges.
19 MR. CLEGG: I'm very grateful.
20 JUDGE MCDONALD: Thank you. The parties have
21 agreed that the Prosecution will proceed first.
22 Let me advise the parties that the Trial
23 Chamber has thoroughly -- may I repeat, thoroughly --
24 reviewed the submissions, and this should be kept in
25 mind when you are making your presentations.
1 Who will be presenting for the Office of the
3 MR. YAPA: For the Prosecution, Your Honours,
4 Mr. Michael Keegan will make the submissions.
5 JUDGE MCDONALD: Very good. How much time
6 will you require, Mr. Keegan, approximately?
7 MR. KEEGAN: I think probably about 20
8 minutes, Your Honour.
9 JUDGE MCDONALD: Thank you. Who will be
10 presenting for the Defence?
11 MR. CLEGG: I will.
12 JUDGE MCDONALD: Very good.
13 JUDGE MCDONALD: How much time -- well,
14 you'll need more than 20 minutes, I presume.
15 MR. CLEGG: I don't think substantially
17 JUDGE MCDONALD: Very good. Thank you.
18 Mr. Keegan, you may proceed.
19 MR. KEEGAN: Thank you, Your Honours.
20 With respect to the additional counts
21 referred to in sub-paragraphs (4) and (5) of the
22 Disposition of the Judgement of the Appeals Chamber,
23 Dusko Tadic should be sentenced to a punishment that
24 fits the heinous nature of his crimes and serves the
25 purposes of retribution and deterrence. The extreme
1 nature of his acts and the callousness with which he
2 committed them dictate that he be adjudged a severe
3 sentence. Likewise, the other Dusko Tadics out there
4 should be sent a message of deterrence. Such crimes
5 and conduct toward one's fellow human beings will not
6 be tolerated.
7 In determining an appropriate sentence for
8 Dusko Tadic, there are two primary issues that this
9 Trial Chamber must decide. Those are: 1) the
10 punishment that should be adjudged for the additional
11 counts he has been convicted of; and 2) how that
12 punishment should be served.
13 According to counsel for Dusko Tadic, in
14 making these determinations, this Trial Chamber must
15 consider the factors set forth in their submission and
16 in the context of a sentencing tariff that they assert
17 is a necessity and that this Trial Chamber apparently
18 should create and follow. According to the Defence
19 arguments, those factors show that Dusko Tadic is a
20 minor perpetrator, who, under this mythical sentencing
21 tariff, would warrant only sentences to short terms of
22 imprisonment to be served concurrently with the twenty
23 years that has already been imposed. The Defence
24 submission is that Dusko Tadic should, in fact, serve
25 no additional punishment despite these additional
2 This Defence position is misguided and
3 ignores the principle purposes of this Tribunal to
4 bring to justice individuals responsible for serious
5 violations of international humanitarian law in the
6 former Yugoslavia; to deter future violations of
7 international humanitarian law; and to contribute to
8 the reestablishment of peace and security in the
10 While this Tribunal may rightly focus most of
11 its attention on persons who held leadership positions
12 in the conflicts in the former Yugoslavia, it is bound
13 by its obligations when a "lower-level criminal" comes
14 before it. Dusko Tadic should not receive the benefit
15 of a sentence that is reduced arbitrarily out of a
16 sense that some room needs to be left for more
17 important accused.
18 There are, in fact, other mechanisms or
19 options available to this Tribunal to distinguish those
20 accused who may be responsible for many more crimes
21 than Dusko Tadic, such as the imposition of consecutive
22 punishments and, of course, the maximum punishment
23 available under the statue, imprisonment for the
24 remainder of the convicted person's life.
25 The Defence argue that the development of a
1 sentencing tariff is highly desirable because it might
2 encourage future accused to enter realistic pleas and
3 to cooperate with the Prosecution. This assertion is
4 without foundation both in the context of the type of
5 accuse the that come before this Tribunal and as a
6 general matter. The experience of this Tribunal has
7 been that very few accused cooperate with the
8 Prosecution in any significant way and only two have
9 plead guilty thus far. Most of the accused do not
10 consider pleading guilty or cooperating with the
11 Prosecution primarily out of concern for their family
12 members who remain behind in the former Yugoslavia. A
13 sentencing tariff will do nothing to change that
14 scenario. Moreover, the imposition of a light sentence
15 on someone such as Dusko Tadic, who has not cooperated
16 with the Prosecution in any significant way, would send
17 the exact opposite message to that averred by the
18 Defence. The message would be that there is no
19 incentive to cooperate or to plead guilty to some or
20 all of the charges.
21 Following on with the Defence argument, they
22 assert that Dusko Tadic should be placed well below the
23 top range of this mythical sentencing tariff as a
24 result of several factors.
25 First, the Defence states that Dusko Tadic is
1 not a high-ranking official, like others who are before
2 the Tribunal, or that he was a member of a crisis staff
3 in the former Yugoslavia but, rather, a low-ranking
4 individual, similar to thousands of others in the
5 former Yugoslavia. The Defence also cite the comments
6 by Judge Richard Goldstone and others as support for
7 this proposition.
8 Second, the Defence cite the fact that Dusko
9 Tadic committed his crimes at a time when he was being
10 bombarded by nationalist propaganda.
11 Third, the Defence cite to the character
12 evidence presented before the original Trial Chamber
13 for the proposition that there is no evidence to
14 indicate the likelihood that Dusko Tadic would
16 Finally, the Defence notes the alleged
17 effects of detention on Dusko Tadic's family.
18 Contrary to the Defence assertion, Dusko
19 Tadic cannot claim safety in numbers, nor seek an
20 excuse for his actions as a result of the propaganda
21 that was disseminated. There were not thousands of
22 individuals who willingly committed the barbaric crimes
23 that Dusko Tadic did and under such circumstances as
24 was determined by the original Trial Chamber. Nor was
25 Dusko Tadic's criminal misconduct one isolated indent
1 with no time for reflection. He had, in fact, ample
2 time to reflect on his actions during his ongoing
3 criminal enterprise. While it is true that the
4 propaganda campaign disseminated by the Serb
5 authorities created the environment which both prompted
6 these types of crimes and provided the perpetrators
7 with a cloak of false validity, it was still the
8 individual who made the choice to commit the heinous
9 acts that were, notwithstanding any amount of
10 propaganda, clearly crimes under international law.
11 The Defence use of Judge Goldstone's comments
12 are clearly taken out of context and totally inapposite
13 to the issue before this Chamber. The Defence have
14 chosen to highlight one part of a phrase and ignore the
15 all-important qualifier. Judge Goldstone's point was
16 that, in his opinion, it was an unsatisfactory state of
17 affairs when those who incited and facilitated the
18 conduct of Dusko Tadic remain at large and
19 unaccountable for their actions, when direct actors,
20 like Dusko Tadic, do face trial, but nothing in his
21 comments can be construed to support an argument that
22 because of that situation Dusko Tadic did not deserve
23 to be tried before this Tribunal or that as a result of
24 the situation he should receive some lower punishment.
25 While Judge Goldstone did note he would have preferred
1 the first trial at this Tribunal to be against a
2 "higher-profile target," he in no way suggested that
3 Dusko Tadic did not warrant to be tried and
4 appropriately punished by this Tribunal.
5 The Defence assertion that there is no
6 evidence that Dusko Tadic would re-offend is also not
7 pertinent in this matter. The issue of a convicted
8 person's potential to re-offend is an issue directly
9 related to the concept of rehabilitation. As stated in
10 our brief the issue of rehabilitation is not a primary
11 consideration in determining an appropriate sentence
12 before this trial; retribution and deterrence are the
13 primary concerns. Dusko Tadic is here today facing
14 this additional sentencing process because of his
15 voluntary criminal actions. He committed these actions
16 fully aware of the fact that he had a family. To allow
17 him to now use his family as a shield to avoid
18 punishment for destroying his victims and their
19 families would be manifestly unjust. Any consideration
20 of what effect lengthy imprisonment might have on Dusko
21 Tadic's family life should be directly tempered with
22 the fact that his crimes, in particular the murder of
23 five men from Jaskici, have devastated many of the
24 survivors and have permanently affected the family
25 lives of his victims.
1 Moreover, it should be noted that the
2 original Trial Chamber considered the issue of any
3 mitigating circumstances, as well as the personal and
4 family situation of Dusko Tadic, and concluded that the
5 specific harm caused to the victims and their families
6 by Dusko Tadic is of paramount importance and the Trial
7 Chamber also noted that the harm cannot be explained
8 away by pointing to others.
9 With respect to the issue of cooperation, the
10 position of the Prosecution was stated in our brief and
11 we are prepared to discuss that issue in a private
12 session should this Trial Chamber so desire.
13 Another factor that the Defence asserts the
14 Trial Chamber should consider is Dusko Tadic's conduct
15 in the United Nations Detention Unit. The Office of
16 the Prosecutor received the assessment of the detention
17 unit only yesterday afternoon. After reviewing its
18 contents, the Prosecution believes that it has
19 information brought out in the proceedings against
20 counsel in this case that may bear on the accuracy of
21 this assessment.
22 We would seek leave, Your Honours, to file
23 copies of transcripts and excerpts from the statement
24 submitted by Defence counsel from those proceedings to
25 this Chamber. A copy is also available for the
1 Defence. We do obviously apologise for the lateness of
2 this filing, Your Honour, but we only received the
3 information last night.
4 We would also note, Your Honour, that
5 Mr. Livingston, the co-counsel here, has been present
6 throughout those proceedings --
7 JUDGE MCDONALD: Excuse me, just a moment,
8 Mr. Keegan. This has just been submitted and this is
9 about an inch and a little bit. Before we receive
10 it --
11 THE INTERPRETER: Microphone, Your Honour.
12 JUDGE MCDONALD: I'm sorry. Thank you. This
13 is about an inch and a little bit. Before the Chamber
14 reviews it, I would like to have the views of counsel.
15 You have not seen it, so perhaps we can defer
16 the matter until you can look at it.
17 MR. CLEGG: Yes. My initial concern is that
18 the report by the --
19 JUDGE MCDONALD: Commander.
20 MR. CLEGG: -- commanding officer of the
21 detention unit, Mr. McFaden, has not been filed on
22 behalf of the appellant. It is something that the
23 appellant merely indicated to the Chamber. One might
24 want to make that inquiry. The Chamber, of its own
25 volition, has sought this, and it's been filed, I
1 anticipate, by the Chamber itself. It's certainly not
2 been filed by us.
3 I would have thought that this really is no
4 more than a character reference, and to embark upon
5 what is clearly a very substantial issue of fact on the
6 back of a half-page reference that does little more
7 than say that the prisoner has been a model prisoner
8 and obeyed the rules of the detention centre seems, at
9 best, with respect, an overreaction.
10 It is a matter for the Trial Chamber, but we
11 would have thought that this is not the sort of
12 document that requires a filing presumably by the
13 Prosecutor, and then if we disagree something with in
14 this inch, then we're asked to file something again and
15 what happens? We go on to another -- heaven forbid --
16 another day for oral argument to resolve the disputed
17 issues of fact that are disclosed in the material
18 that's just been handed in.
19 JUDGE MCDONALD: Well, Mr. Clegg, I was
20 looking in your brief. I was trying to find the exact
21 reference to the report. As I recall, however, the
22 Defence didn't suggest that this might be something
23 that the Trial Chamber might want, rather, the Defence
24 requested that the Trial Chamber ask for this report.
25 MR. CLEGG: It's paragraph 11, in fact, of
1 the brief, and it says: "The Trial Chamber is urged
2 before sentencing to obtain a report of his conduct."
3 JUDGE MCDONALD: You asked to us obtain a
4 report and the Trial Chamber has.
5 MR. CLEGG: Yes. But nonetheless, I don't
6 disavow from the principle that if you've taken up that
7 baton, as it were, is it, I ask rhetorically, something
8 that's going to result in a substantial filing and then
9 presumably a filing in response sometime in the
11 JUDGE MCDONALD: Well, let's defer action on
12 that additional material relevant to sentencing of
13 Dusko Tadic with confidential attachments that
14 Mr. Keegan has just submitted, and you will have an
15 opportunity -- Mr. Livingston is sitting next to you.
16 Mr. Livingston, you can take a glance at that
18 One other matter Mr. Keegan -- I apologise
19 for interrupting you, but one other matter Mr. Keegan
20 did suggest is that we perhaps discuss this matter of
21 cooperation in a private session. I presume that would
22 be a closed session. That's what you're referring to?
23 MR. KEEGAN: Actually, Your Honour, we were
24 just referring to private, where they just shut off the
25 microphones to the outside rather than going into the
1 complete closed, but whatever is preferable to the
3 JUDGE MCDONALD: Well, at least it would not
4 go out to the public, whether it's private or closed.
5 MR. KEEGAN: That's correct.
6 JUDGE MCDONALD: Okay. What is your position
7 regarding that, Mr. Clegg?
8 MR. CLEGG: I agree with Mr. Keegan that if
9 he wants to address the court in relation to that, it
10 should be in private or closed.
11 JUDGE MCDONALD: Very good. We will rule on
12 the request by the Prosecution to submit this material
13 at a later point in this hearing.
14 MR. KEEGAN: Your Honour, if I may just take
15 one second so this is all essentially in the same place
16 in the record. What the material contains is the
17 transcript of testimony from a witness who has
18 testified in that other proceeding, and it's the
19 complete transcript, which is why it's so thick, as you
20 referred to. It also contains an excerpt from the
21 statement submitted by prior counsel. Of course, it's
22 submitted based on the fact that the Defence urged the
23 Chamber to consider his conduct in the detention unit
24 as relevant to sentencing.
25 Therefore, we felt information that might
1 have a bearing on that decision would be relevant for
2 the Chamber to consider. We don't really see that it
3 will require any additional argument. The Chamber is
4 free to give it whatever weight it believes is
6 JUDGE MCDONALD: Of course, the Defence would
7 have an opportunity, I suppose, to respond to this
8 material, and if it required testimony from the
9 Defence, then Mr. Clegg said -- what did you say,
10 heaven forbid that we would continue on with this
12 MR. CLEGG: It does seem as though it's
13 merely creating yet another potential hearing before
14 the matter can be resolved. It's going to be very
15 difficult for me to respond to it today, just looking
16 at the --
17 JUDGE MCDONALD: We have plenty as time and
18 we want to have as full a hearing as possible, so
19 certainly we wouldn't cut off a matter just to make the
20 hearing shorter. We want to have as full a hearing as
21 possible. But keep in mind now that counsel ask that
22 this report be requested and we did, the Trial Chamber
23 did request it.
24 MR. KEEGAN: Yes, Your Honour, and if I might
25 be permitted to finish, one final comment.
1 The actual statement from counsel is
2 Mr. Clegg's submission to the Chambers, and
3 Mr. Livingston has been present throughout all of the
4 testimony which we've submitted, so he's fully aware of
5 the nature and scope of the testimony we've submitted.
6 JUDGE MCDONALD: That's contained in the
7 additional material just submitted.
8 MR. KEEGAN: Yes, Your Honour.
9 JUDGE MCDONALD: We'll move on then.
10 Mr. Keegan, I apologise for interrupting
11 you. You may proceed.
12 MR. KEEGAN: Thank you, Your Honour.
13 Irrespective, Your Honours, of the assessment
14 related to Mr. Tadic's conduct while in the detention
15 unit, we submit that, in fact, the nature of his
16 conduct in the detention unit is irrelevant to these
17 proceedings. Good conduct during detention becomes
18 relevant for sentencing in jurisdictions, once again,
19 where rehabilitation is a paramount consideration.
20 Sentencing reduction for good behaviour is held out as
21 an incentive to prompt a detained person to enrol in
22 prison programmes aimed at rehabilitation or to begin
23 to obey rules and regulations in order to prepare that
24 person for re-entry into a particular society. Once
25 again, rehabilitation is not a primary factor for
1 consideration in imposing sentences before this
2 Tribunal. We would also note, based on the facts as
3 determined by the original Trial Chamber, it's clear
4 that Dusko Tadic himself gave no consideration to the
5 prisoners in Omarska or Keraterm camps.
6 Moreover, good behaviour in the detention
7 unit has its own compensations for Dusko Tadic having
8 nothing to do with sentencing issues. Good behaviour
9 by the detainee ensures that he will be given the full
10 measure of his benefits at the detention unit and, by
11 inference, a better working relationship with the
12 detention unit staff. Conversely, misconduct in the
13 detention unit can result in sanctions and loss of
14 privileges. Thus, good behaviour in the detention unit
15 has its own benefits for the detained person.
16 Accordingly, Dusko Tadic should not be given any
17 consideration in this sentencing hearing for his
18 behaviour in the detention unit.
19 In light of the particular circumstances of
20 this case, we would also note that, generally,
21 post-sentencing good behaviour is an issue related
22 solely to parole and should only be considered should
23 that matter arise.
24 The Prosecution brief on sentencing contains
25 our recommendations as to an appropriate sentence for
1 the additional convictions, and I will, of course, not
2 repeat that here.
3 JUDGE MCDONALD: You may repeat it. That
4 should just be a sentence or so.
5 MR. KEEGAN: With respect to the issue of
6 concurrent sentences, as submitted by the Defence
7 counsel, however, the Prosecution notes that the
8 citation to the Celebici case is not directly on point
9 here. The decision in that case, rather, falls in the
10 same category as the decision by the original Trial
11 Chamber in the present case. The sentences handed down
12 by both Trial Chambers were in relation to counts upon
13 which they had convicted the respective accused. Those
14 Trial Chambers then determined that the sentences
15 should be served concurrently. Those decisions do not
16 represent the current situation that is before this
17 Trial Chamber.
18 This Trial Chamber is faced with the decision
19 of what appropriate additional punishment should be
20 adjudged based upon convictions that the original Trial
21 Chamber never considered. Defence counsel offers no
22 authority from the jurisprudence of either of the Ad
23 Hoc Tribunals in support of its position that the
24 imposition of additional punishments should run
25 concurrently with the existing punishment.
1 As has been recognised by prior decisions,
2 this Tribunal is not bound by the requirements or
3 practice of any national jurisdiction. To the extent,
4 however, that the Defence would try to rely on national
5 jurisdictions to support its position, we suggest such
6 reliance would fail. In the circumstances of this
7 present case, the majority of jurisdictions in the
8 world would, in fact, award additional punishment in a
9 manner that increases the original sentence. They
10 would not, we submit, simply make the additional
11 punishment concurrent with the existing sentence.
12 We would cite, for example, the jurisdictions
13 of Argentina, Italy, Germany, Mexico, the United
14 Kingdom, and Zambia. We, of course, would make those
15 references available to the law clerks after the
16 proceedings, Your Honours. In each of those
17 jurisdictions, the court would have to review the
18 seriousness of the additional convictions, impose a
19 punishment for them, and then add it to or otherwise
20 modify the existing original sentence to make it more
22 The essential point is that whatever
23 punishment this Trial Chamber feels is appropriate for
24 the additional convictions, its impact should be to
25 increase the current sentence of Dusko Tadic. As
1 indicated in our brief, the Prosecution believes that
2 at a minimum the additional punishments should result
3 in an increase of not less than 15 years, thus making
4 the total sentence to be served 35 years.
5 This minimum increase, however, may be
6 shifted significantly upward, depending upon the amount
7 of sentence awarded for each of the new convictions and
8 the determination of whether they should be served
9 concurrently with each other or consecutively.
10 As noted in our brief, with the exception of
11 Count 29, the crimes for which Dusko Tadic has now been
12 convicted under Article 2 are based upon conduct that
13 he was also convicted of under Articles 3 and 5 in the
14 original judgement. The grave breach provisions do
15 represent, however, their own important values and
16 concerns of the International Community. This Trial
17 Chamber may therefore determine that the protection of
18 these values is a significant additional factor and
19 increase the original sentence accordingly.
20 Regardless of how the Trial Chamber chooses
21 to deal with the grave breach convictions, the
22 additional convictions for the murder of the five men
23 from Jaskici represent crimes and conduct that the
24 original Trial Chamber did not consider at all in its
25 sentencing judgement. Those five murders represent the
1 most serious individual acts committed by Dusko Tadic.
2 Accordingly, there should be little question but that
3 an increased punishment must be imposed. To do
4 otherwise would be contrary to the principles of
5 retribution and deterrence and justice for the victims
6 and the International Community. In that regard, what
7 remains then is for the Trial Chamber to determine
8 whether the additional punishment for each of those
9 counts related to the murders should be served
10 concurrently or consecutively. The penalty that
11 results from that decision should then be added on top
12 of the current 20-year sentence.
13 Thank you, Your Honours.
14 JUDGE MCDONALD: Thank you, Mr. Keegan.
15 Mr. Clegg. Excuse me just a moment,
16 Mr. Clegg.
17 [Trial Chamber confers]
18 JUDGE MCDONALD: Mr. Clegg, Judge Robinson
19 has a few questions that he would like to present to
20 Mr. Keegan at this time.
21 JUDGE ROBINSON: Mr. Keegan, there are two
22 matters I'd like to raise with you.
23 The first is the approach that is reflected
24 in your submissions with regard to rehabilitation. The
25 first statement that you made on rehabilitation was
1 that, in your submission, it is not a primary
2 consideration in determining sentence, and the primary
3 considerations are retribution and deterrence. Later,
4 however, you said, more openly, more boldly, that
5 retribution is not a factor in sentencing in the
6 Tribunal. You omitted the word "primarily" there.
7 I would like to find out from you exactly
8 what your position is. If your position is that
9 rehabilitation is not a primary consideration or is not
10 a factor at all, do you say this on principle or on
11 authority? For that purpose, I would not consider it
12 sufficient merely to say that the purpose of the
13 Tribunal is retribution and deterrence. I'd like to
14 find out if you have any sound basis for saying that in
15 determining sentence in the Tribunal, rehabilitation is
16 not a primary consideration or, as you later said, is
17 not a factor at all.
18 The second issue is the one that you just
19 referred to; that is, that whatever punishment is
20 imposed by this Trial Chamber, its effect must be to
21 increase the punishment, and I believe you referred to
22 some jurisdictions, Italy, Germany, Argentina, and so
23 on. I would be very much helped if you could actually
24 cite the provisions of whatever references you have
25 from one or two of those jurisdictions that would
1 actually indicate that.
2 MR. KEEGAN: Yes. Thank you, Your Honour.
3 With respect to the issue of rehabilitation
4 and its role, if any, in sentencing considerations, in
5 our brief, Your Honour, we did, of course, cite to the
6 jurisprudence which does support that position, both
7 from this Tribunal and from the Rwanda Tribunal,
8 including, for example, the quote that we included from
9 the Kambanda case and from the Erdemovic case before
10 this Tribunal.
11 We believe, Your Honour, that, of course, one
12 can never rule out a factor such as rehabilitation,
13 should it arise with respect to a particular accused in
14 an appropriate case, for example, if there were an
15 accused who was, in fact, a very minor -- perhaps a
16 player, a soldier, if you will, who for some reason
17 came from this Tribunal who was a very young man who
18 might, in fact, warrant some consideration of what his
19 future might bring.
20 We would suggest, however, that in the vast
21 majority of cases that should and will be heard by this
22 Tribunal, rehabilitation should not be a factor in
23 consideration based on the nature of the crimes and the
24 circumstances in which they were committed.
25 We're not dealing, obviously, with common
1 crimes, if you will, committed in national jurisdiction
2 where there is every effort to try and rehabilitate the
3 person back into society and to make them a
4 contributing member again. The people who come before
5 this Tribunal, as a matter of rule, have committed the
6 most serious violations of international humanitarian
8 The primary factor, we submit, in determining
9 an appropriate sentence should be the enforcement of
10 the International Community's laws and values. It's
11 not the situation where you're looking that someone can
12 come back from that kind of particular crime and become
13 a contributing member of society again.
14 So I will certainly not stand here and tell
15 you that it should never be a factor in any case that
16 comes before this Tribunal, but we would submit, based
17 on the jurisprudence which we've cited in our brief and
18 by the nature of the cases which come before this
19 Tribunal and the nature of the accused, that it should
20 not be a very strong consideration at all for the Trial
22 JUDGE ROBINSON: I'm more interested in the
23 position of principle -- you've cited the authorities
24 from the Tribunal -- because rehabilitation is, of
25 course, a general factor, a general principle in
1 sentencing in most jurisdictions. But I understand you
2 to be saying that by reason of the nature of the crimes
3 before the Tribunal, the gravity of the crimes,
4 rehabilitation ought not to be taken into
6 MR. KEEGAN: Or given very little weight as a
7 factor, yes, Your Honour, I believe so.
8 JUDGE ROBINSON: Okay. I take account of the
9 latter comment.
10 JUDGE MCDONALD: Let me just follow up on
11 Judge Robinson's questions regarding rehabilitation,
12 and I refer you to the sentencing judgement of the
13 Trial Chamber, consisting of myself, Judge Stephen, and
14 Judge Vohrah, that was entered on July 14th, 1997,
15 paragraph 61, and I'll read it:
16 "Further, while the purpose of criminal law
17 sanctions include such aims as just punishment,
18 deterrence, incapacitation of the dangerous, and
19 rehabilitation, the Trial Chamber accepts the modern
20 philosophy of penology that the punishment should fit
21 the offender and not merely the crime ..." and then
22 there's a citation.
23 But the point that I want to make is that at
24 least the Trial Chamber in the initial sentencing did
25 recognise that rehabilitation was a factor that we
1 would consider, although modern philosophy of penology
2 is that the punishment should fit the offender and not
3 merely the crime.
4 Of course, I understand there's an appeal
5 pending, so I suppose you would say that our reference
6 to rehabilitation in the sentencing judgement was
8 MR. KEEGAN: No, Your Honour. I should say
9 that we took that statement in paragraph 61 to be a
10 general statement of principle which we would agree
11 with as a general course for states. The issue is
12 whether those philosophies directly apply before this
13 Tribunal, and that is where we say that while, in fact,
14 it's obvious that it should be a recognised principle
15 for states, when you're talking about the normal types
16 of crimes, it's not the situation that applies here.
17 JUDGE MCDONALD: But in this sentencing
18 judgement, you realise that we were not talking about
19 normal crimes in states. This sentencing judgement was
20 drafted for this particular case, which involves very
21 serious crimes.
22 MR. KEEGAN: Yes, Your Honour.
23 JUDGE MCDONALD: One other comment, since we
24 are questioning you, relates to the relevance of
25 Mr. Tadic's behaviour while he's been in the detention
2 Look at paragraph 10 of the sentencing
3 judgement, and the Trial Chamber then quoted from
4 Article 41(1) of the SFRY Penal Code, and you note next
5 to the last line -- actually, you go up to the third
6 sentence, and this relates to the various factors to be
7 taken into account in determining sentence according to
8 that Penal Code, and the last sentence is: "The
9 perpetrator's personal circumstances and behaviour
10 after the commission of the offence."
11 Now, do you determine behaviour in the
12 detention unit as being behaviour after the commission
13 of the offence?
14 MR. KEEGAN: It would seem to be certainly
15 included, Your Honour. I'm not so sure that that's
16 exactly what the drafters of that particular provision
17 had in mind. It may be that in the majority of their
18 cases there's not pre-trial detention and they're
19 talking about the person's conduct while awaiting
20 trial, but again, the Trial Chamber did note in its own
21 judgement while it has to have regard to the sentencing
22 practices in the former Yugoslavia, it's not bound by
24 Again, we would submit that the types of
25 factors which may play a predominant role in any given
1 state because of its desire to reincorporate convicted
2 persons into their society, those factors do not
3 necessarily apply directly to this Tribunal, and so it
4 becomes a question of the weight to be given to the
5 factor, and we believe that the prior jurisprudence of
6 this Tribunal supports the argument that
7 rehabilitation, as a factor, should be given very
8 little, if any, weight, given particular circumstances
9 of a case.
10 JUDGE MCDONALD: Let me follow up on that
11 then. How do you propose we interpret article 24(1),
12 and Rule 101(B)(iii)? And that relates to the
13 sentencing practice in the former Yugoslavia. You say
14 we're not bound but what weight should we give to it?
15 The Defence argues in its brief that if we
16 impose an additional sentence and then make that
17 sentence run consecutively with the 20 years that we
18 imposed for Count 1, then that would go beyond the
19 20-year cap or maximum currently in the former
21 Now, my question to you -- I really have two
22 questions. So what weight do we give to it? You say
23 we're not bound, but what weight do we give to it?
24 The second question is: Am I correct that at
25 the time of the commission of the offences that capital
1 punishment was in place in the former Yugoslavia and
2 that subsequently it was abolished by constitutional
3 amendment in some of the republics, and that now the
4 20-year maximum is for persons who would be eligible to
5 have received a capital sentence? So what is the
6 effect of that?
7 Also in our sentencing judgement -- the Trial
8 Chamber's sentencing judgement of July of 1997, we
9 found that if an individual committed a crime that
10 would carry capital punishment in the former
11 Yugoslavia, that we could impose a maximum of life. Do
12 you agree or disagree with that statement? I presume
13 you agree.
14 Can you address those three points for you me
15 since we're talking about this?
16 MR. KEEGAN: Yes, Your Honour. In fact, I
17 think the second two points flowed directly from the
18 first and were the answer I would have raised in the
19 answer to that first submission about the sentencing
20 factors, so, of course -- because we had this debate in
21 the first round of sentencing briefs and argument.
22 It's exactly that point.
23 If one were to -- if you were to live by what
24 occurred or the situation in the former Yugoslavia in
25 terms of sentencing practices, then, in fact, Dusko
1 Tadic would have been at risk of having capital
2 punishment imposed. Of course, we do not have capital
3 punishment but we do have a sentence to life, which
4 would seem to be the reasonable alternative to what
5 would have been the maximum he could have faced.
6 That would seem, in fact, then, to override
7 that 20-year limitation because, in fact, it was death
8 and except that 20-years could be awarded in lieu of.
9 So I think in keeping with the argument we
10 made in those first submissions, the point of having
11 regard to the sentencing practices in the former
12 Yugoslavia, we believe was an approach taken to give
13 account to the principle of legality, and that is that
14 it was, if you will, a check, that if for some reason a
15 particular provision of our Statute or the Rules or the
16 application of those Rules would somehow put an accused
17 convicted person at risk of facing a punishment that
18 had no basis or recognition in the laws of the former
19 Yugoslavia, then perhaps the Chamber might be
20 constrained to say, "We must at least be bound by the
21 framework of punishments that the accused himself would
22 recognise;" that is, it was a punishment in the bounds
23 of something that he could have been submitted to in
24 the former Yugoslavia had he been tried there. We
25 think that's the approach or the idea behind that.
1 If that, in fact, is a correct approach, well
2 then, in fact, the at the time of the commission of
3 those acts, the most severe punishment he would have
4 faced would have been capital punishment. From that,
5 it would seem to flow a very easy and logical argument
6 that anything less than that is certainly within the
7 bounds of what an accused might have expected in the
8 former Yugoslavia.
9 We would, therefore, submit that, in fact,
10 the availability to this Tribunal of its maximum
11 punishment of a sentence to life is within the
12 parameters of the laws in the former Yugoslavia in the
13 sense that it is an alternative, if you will, to
14 capital punishment at this time, and if you're talking
15 about a later date, should we have that case, then
16 obviously the question of the abolishment, for example,
17 in Bosnia-Herzegovina, which was brought about as a
18 result of the constitution that flowed from the Dayton
19 Accords, they are, in fact, moving to create a life
20 imprisonment punishment as the alternative. So the
21 20-year cap itself won't even be relevant.
22 JUDGE MCDONALD: So you agree with the
23 sentencing judgement of the Trial Chamber in that
25 MR. KEEGAN: Yes, Your Honour.
1 JUDGE MCDONALD: Since you're on your feet,
2 let me ask you one question about cooperation.
3 Rule 101(B)(ii) of the Tribunal's Rules speaks in terms
4 of substantial cooperation. You used a different
5 phrase when you were presenting your argument. Do you
6 accept that that is one of the factors that we may use,
7 that the Trial Chamber may use as mitigation?
8 MR. KEEGAN: Yes, Your Honour.
9 JUDGE MCDONALD: Substantial cooperation.
10 MR. KEEGAN: Yes. I used the word
11 "significant," which I certainly didn't intend mean to
12 anything different than what's conveyed in the rules.
13 JUDGE MCDONALD: How do you determine
14 substantial cooperation? Well, this may be a matter
15 we'll discuss in closed, so maybe we should not get
16 into too much detail, because you may have to -- in
17 order to respond, you may have to get into some of the
19 MR. KEEGAN: I can answer it in this way Your
20 Honour, at least: With the submission of the
21 additional material, we included all of the briefs
22 submitted, both our reply and the Defence reply for
23 your consideration, and in that brief, in our reply,
24 the Prosecution noted that we believe, in its context,
25 that it must be, in essence, a determination made by
1 the Prosecution, since it is the Prosecution that is
2 familiar with what evidence it holds and what
3 information is particularly relevant to any particular
5 So in many respects, it would seem to us that
6 it is, in fact, a determination for the Prosecution and
7 an assessment which the Trial Chamber should consider,
8 I would suppose, much like, if you will, some judicial
9 reviews, unless there is a clear indication of an abuse
10 of the discretion by the Prosecution in that regard.
11 JUDGE MCDONALD: One final question relates
12 to Count 8, Mr. Keegan. The Appeals Chamber found
13 Mr. Tadic guilty of Count 8, and in the indictment it's
14 charged grave breach -- for Count 8, grave breach
15 recognised by Articles 2(B) (torture or inhumane
16 treatment). How do you propose that we sentence? Are
17 those alternatives? Should we sentence as torture or
18 should we sentence as inhumane treatment. And if you
19 will, will you tell me the basis for your position?
20 MR. KEEGAN: Yes, Your Honour. Just one
21 moment, please.
22 Yes, Your Honour. It would be our position
23 that this Trial Chamber would have to look at, as we
24 submitted in our brief, the factual filings as to the
25 particular conduct involved. We would submit that the
1 primary allegation, and we think it's fairly clearly
2 stated or obvious from the way it's phrased in the
3 indictment, that it's focused on torture. However, we
4 would submit that given the state of the proceedings at
5 this point, if there is any ambiguity and if this Trial
6 Chamber were to find that inhumane acts is a lesser
7 form, if you will, of that crime, that torture's one,
8 inhumane acts is a different one, then obviously we
9 think this Trial Chamber would have to go with the
10 lesser form if there's any ambiguity at all, but we
11 submit there shouldn't be based upon the facts as
12 determined by the original Trial Chamber and that the
13 punishment for torture is appropriate.
14 JUDGE MCDONALD: Mr. Keegan, do you want to
15 continue on that?
16 MR. KEEGAN: No, Your Honour. I still hadn't
17 answered Judge Robinson's question about the
18 citations. I'm happy state them on the record or I'm
19 happy to provide them to the clerks immediately after,
20 Your Honour.
21 JUDGE ROBINSON: Let me just explain to you
22 so we don't waste time. I'm only interested in them if
23 you're submitting them as indicating a jurisprudence in
24 those countries that would require that in cases
25 similar to this, the punishment must be additional to,
1 must be consecutive. That's the only context in which
2 I'm interested in them.
3 MR. KEEGAN: Yes, Your Honour. They were
4 referenced and they would be submitted for the purpose
5 of establishing that in those states, in fact, the way
6 the sentence would be structured would involve an
7 increase in some way.
8 JUDGE ROBINSON: Thank you. I think you can
9 just submit them.
10 MR. KEEGAN: Thank you, Your Honour.
11 JUDGE MCDONALD: Mr. Keegan, the Appeals
12 Chamber, in the Tadic interlocutory appeal, focused on
13 Article 3 and interpreted Article 3 in a way as to
14 include Common Article 3, and basically all offences
15 that were not covered by Article 2, 4, or 5, do you see
16 that there is any impediment in now sentencing under
17 Article 2, considering that that decision that
18 basically Article 3 was a catch-all and that you would
19 look at Article 3 first and then only go to Article 2?
20 Of course, the Appeals Chamber has directed
21 the Trial Chamber to sentence under Article 2, but
22 leaving that aside, I would like your thoughts.
23 MR. KEEGAN: Yes, Your Honour. As we stated
24 in our brief, we believe that each of the Articles have
25 particular and discreet status within international
1 law, that they protect, if you will, different societal
2 values and norms as derived by agreement of states in
3 the International Community.
4 We would submit that the way, in fact, to
5 look at that decision of the Appeals Chamber in the
6 jurisdiction decision was, in fact, a slightly inverse
7 proposition, and that would be that you would actually
8 look to Article 2 first as a discreet crime, and only
9 if the particular requirements, elements of that crime
10 could not be met, then you would go to Article 3 in
11 order to afford the persons, the victims, protection
12 under international law.
13 So as the majority held, for example, in the
14 original decision, we hadn't proved protected status
15 under the Geneva Conventions of 1949. That left, in
16 fact -- in effect then, only Article 3, if you will,
17 to protect persons in those circumstances.
18 JUDGE MCDONALD: So you see no impediment?
19 MR. KEEGAN: No, Your Honour.
20 JUDGE MCDONALD: Just one other question on
21 this point. As I recall -- and I've not looked at it
22 recently, and the Celebici judgement is 500 pages, it's
23 very long -- as I recall, the Trial Chamber found that
24 the elements for wilful killing under the grave
25 breaches regime, Article 2, are the same as murder
1 under Article 3. Now, that's a Trial Chamber decision,
2 but if we accept that as persuasive authority, then can
3 we sentence for the killings in Jaskici under both
4 Article 2 and Article 3 if we accept that the elements
5 are the same?
6 MR. KEEGAN: Yes, Your Honour. I think that
7 the distinction there is that the elements of the
8 underlying crime are obviously the same. It's
9 essentially the murder or wilful killing of an
10 individual. Those basic requirements will be no
11 different than they are in any national jurisdiction.
12 The additional factor in Article 2 that is
13 implicitly different is the fact that they occur in the
14 context of an international armed conflict and that the
15 victim is a protected person under the Fourth
16 Convention, for example.
17 That particular requirement, if we don't want
18 to call it an element of the crime, for the application
19 of Article 2 does not exist for Article 3, and it's
20 that protection, that regime of conduct which the
21 International Community has tried to protect by virtue
22 of creating the Geneva Conventions and applying them
23 specifically in the context of international armed
24 conflict, that's the value or the societal norm that's
25 being protected here.
1 So while, in fact, the underlying act may be
2 the same across the spectrum of Articles 2, 3, and 5,
3 it's the nature of the crime, the context in which it
4 occurs that we're trying to protect here that has a
5 value to reinforce in international law, if you will,
6 by the imposition of a sentence. And that, quite
7 frankly, is why we've raised the issue with respect to
8 those crimes. The issue of concurrent sentencing
9 becomes a more obvious issue as opposed to the five
10 murders in Jaskici.
11 JUDGE MCDONALD: Well, let me say this: As I
12 recall, the majority in Tadic found that protected
13 persons, or at least the requirement that you prove
14 that the victims were protected persons was an element
15 of Article 2. Am I correct? So then, in fact, the
16 element -- there seems to be a little different
17 approach there between the Tadic Trial Chamber and
18 Celebici. Which one should we choose?
19 MR. KEEGAN: Yes, Your Honour. It would be
20 our submission that, in fact, it is a requirement that
21 the person -- that it be proven that the persons are
22 protected persons for the application of Article 2.
23 That is, in essence, the difference between
24 Articles 2 and 3.
25 JUDGE MCDONALD: Thank you, Mr. Keegan.
1 Excuse me just a moment.
2 [Trial Chamber confers]
3 JUDGE MCDONALD: Thank you, Mr. Keegan.
4 Judge Vohrah didn't have another question.
5 Mr. Clegg, you now may proceed.
6 MR. CLEGG: I'm grateful. In our submission,
7 the question of sentencing Tadic for the offence of
8 which he has been convicted by the Appeals Chamber
9 raises important principles of sentencing practice.
10 In our submission, the first principle to be
11 applied in sentencing is that the sentence for the
12 particular count ought to reflect the criminality
13 disclosed by that count and fit the offender.
14 So the simple basic principle is that the
15 punishment must fit the crime and match the convicted
17 The second principle, we submit, is the
18 totality principle, in that the total sentence passed
19 for all the criminality must reflect a just sentence
20 when viewed in the wider context of the conflict in the
21 former Yugoslavia and when compared inter-case with
22 other people who have been convicted of like offences.
23 The importance of the first principle is that
24 on Count 1 of the indictment, the Trial Chamber passed
25 a sentence of 20 years, and it is against that
1 background that this new Trial Chamber is considering
2 sentence. So in setting that period of 20 years, one
3 must proceed today, in our submission, upon the basis
4 that the original Trial Chamber deemed that that was an
5 appropriate sentence for the criminality disclosed in
6 Count 1, and also was an appropriate sentence for this
7 particular accused who was convicted of that offence.
8 So in our submission, that must be the starting point.
9 Thereafter, the Trial Chamber considered
10 sentence in relation to the other counts upon which
11 Tadic was convicted. It passed sentences that is a
12 matter of record. In every case, it directed that
13 those sentences run concurrently, not consecutively,
14 with the 20 years. By doing that, the original Trial
15 Chamber was taking a course that the Rules permit
16 expressly, in giving it the power to impose sentence at
18 In passing those sentences, it was not doing
19 what the Prosecutor asserts you would do if you passed
20 a consecutive sentence, and I read from paragraph 19 of
21 the brief where they say a consecutive sentence would
22 negate the findings of the Trial Chamber and undermine
23 the deterrent effect intended. I said "consecutive."
24 I meant "concurrent." I'm sorry.
25 The importance of that is that in dealing
1 with the question of sentence originally, the Trial
2 Chamber deemed that the other offences, apart from
3 Count 1, which were all serious and grave crimes, could
4 be dealt with by concurrent sentences.
5 The Trial Chamber was not in any sense
6 diminishing the gravity of those offences, as anybody
7 reading their judgement could so plainly see; far from
8 it. What it was reflecting was the important principle
9 of sentencing practice; namely, the totality principle,
10 which is, we would submit, common to every jurisdiction
11 that anybody has any knowledge of at all.
12 In its most simple illustration, if you have
13 a person who is charged with burglary and the
14 appropriate sentence of one burglary is one year, if he
15 does a hundred burglaries, there is no jurisdiction
16 that imposes a sentence of a hundred years. One has to
17 look at the totality principle in the light of the
18 offences that have been committed.
19 Now, here the primary decision for the Trial
20 Chamber to address is whether the sentences that now
21 must be passed, and must reflect individually the
22 criminality that the accused has now been convicted of,
23 ought to be passed consecutively or concurrently with
24 the terms that have already been imposed.
25 What approach, I ask rhetorically, ought the
1 Chamber to take. One approach is to analyse the
2 original Trial Chamber sentencing judgement and to ask
3 the question, which may be easier for some members of
4 this Trial Chamber than one, what would the Trial
5 Chamber have done had, in fact, it had these sentences
6 before it as crimes to be sentenced for then?
7 One submission I hope I could make with
8 confidence is that the appellant, as he was, cannot be
9 worse off as a result of the fact that the Trial
10 Chamber erred in returning verdicts of not guilty when
11 it ought not to have done. In other words, if one can
12 divine what the original Trial Chamber would have done,
13 then no added penalty ought to be imposed greater than
15 In our submission, the original Trial
16 Chamber's approach to sentencing was, firstly, to
17 assess the appropriate sentence for Count 1; namely,
18 one of 20 years, and then to clearly, as they must have
19 done, reflect whether that total period was sufficient
20 in this case, adopting the principle of totality,
21 without needing to add to that length by imposing any
22 consecutive sentences for the other counts. It's quite
23 clear, when one reads the judgement, that a decision
24 was clearly made that the period of 20 years was deemed
25 to be sufficient to reflect the criminality disclosed
1 by the charges, although it's reflected in one count,
2 it was not thought appropriate to add to it in relation
3 to the other offences.
4 We would invite the Chamber to reflect upon
5 this proposition: If the original Trial Chamber would
6 have imposed consecutive [sic] sentences for these
7 matters that we are now considering, back in 1997 when
8 the sentence was first passed, then it should still do
9 so today. Nothing has happened, we submit, to alter
10 the approach, or could legitimately result in any
11 alternative approach today.
12 JUDGE MCDONALD: If I may, Mr. Clegg, let me
13 interrupt you because I wanted to fully understand your
15 Mr. Livingston, did you have something to
17 MR. CLEGG: I think I just said "consecutive"
18 instead of "concurrent," but I hope the matter is
20 JUDGE MCDONALD: I understand.
21 But at that time, we found Mr. Tadic -- Judge
22 Vohrah and I, we were on the original Trial Chamber,
23 and Judge Stephen was the other judge -- we found
24 Mr. Tadic not guilty of the transaction that was
25 charged in paragraph 12 and then the majority, of
1 course, found that Article 2 did not apply and did not
2 deal with grave breaches.
3 Two killings were charged in Count 1, charged
4 as a crime against humanity, persecution. Now we have
5 been directed by the Appeals Chamber to sentence for
6 Counts 29, 30, and 31, I do believe, which are the
7 killings of the five individuals. So you have two
8 people in Count 1 that Mr. Tadic was found guilty of
9 killing. As I recall, the Muslim policemen, their
10 throats were slit, as I recall.
11 MR. CLEGG: That's correct.
12 JUDGE MCDONALD: Now we have five. Now, if
13 we had that before us, and I understand that you are
14 commenting on deliberations and how we went about it,
15 and perhaps you're right, perhaps you're not, but in
16 any case, if we had that before us, we may have started
17 with that, if you're correct, and we may have imposed a
18 greater sentence than 20 years.
19 In other words, what do we do with an
20 additional three lives; that is, five as opposed to
22 MR. CLEGG: May I address that? Clearly, if
23 you had to deal with those counts then and, in
24 considering those, had come to the conclusion that the
25 appropriate sentence would have been, shall we say, 25
1 years for those, then clearly my argument has failed so
2 far as that submission is concerned. But if, in
3 considering the counts then you had, hypothetically, if
4 one could put oneself back into that position, but I
5 think that for reasons connected with the involvement
6 of the accused in the two sets of offences, a period of
7 20 years concurrent would deal appropriately with those
8 allegations, then that is thought to be the sentence
9 imposed today as well.
10 Now, in balancing, of course, the involvement
11 in the two sets of offences, it's not, we submit, a
12 question of merely adding up the number of victims and
13 saying, "Well, if two victims are worth 20 years, five
14 would be worth 50 years." One has to go behind that
15 and look at the circumstances in which the two offences
16 were committed.
17 Count 1 of the indictment, the Court
18 correctly recalls, was the slitting of the throats of
19 two Muslim policemen actually by the accused personally
20 holding the knife, and that was the evidence of the
21 eyewitness Nihad Seferovic. In relation to that, the
22 Court took an approach, that I certainly don't intend
23 to criticise in any way, in saying that was clearly a
24 very grave act, despite all the background of the civil
1 The matter for which he has been convicted
2 pursuant to the appeal of the Prosecutor is very
3 different, in the sense that he was one of a group of
4 men who went to a village where five men were abducted
5 and taken away. It is accepted in the Prosecutor's
6 sentencing brief that there is no evidence to suggest
7 that the defendant, Tadic, played any physical part in
8 their murders or personally laid hands on them at all.
9 He was convicted as acting in concert with others in
10 playing a part in the abduction and thereafter has been
11 convicted as somebody who was in concert with those who
12 actually killed, but there is no evidence that he
13 played a physical part in the killings.
14 There is a substantial distinction, we would
15 submit, between the two counts, and balancing and
16 equating the two is, perhaps, invidious. Nonetheless,
17 we would submit that mature reflection on the facts of
18 the two counts would not elevate the killing of the
19 five above the killing of the two policemen for the
20 reasons that I've just indicated.
21 The period of 20 years, of course, is a
22 period that also reflected then the maximum period that
23 could be served by a prisoner in a sentence in the
24 courts of the former Yugoslavia, and I would just
25 allude to Article 24, which requires the Trial Chamber
1 to have recourse to the general practice regarding
2 prison sentences in the courts of the former
3 Yugoslavia. The words "general practice" are slightly
4 curious in Article 24, and I ask rhetorically what do
5 they mean.
6 They must, we submit, require the Trial
7 Chamber to have regard to the actual level of
8 sentencing in the former Yugoslavia. The rationale
9 must be, we submit, that the drafters of Article 24
10 were anxious that there should be a parity of sentences
11 between that passed by the Tribunal and that passed by
12 the domestic courts. Otherwise, why have regard to the
13 general practice of the courts in Yugoslavia? Why not
14 America or the United Kingdom or Europe?
15 It's not an effort, in Article 24, to extract
16 some general sentencing principle to be applied by the
17 Trial Chamber here, it must be something that is
18 pitched at the actual level of sentences passed in
19 Yugoslavia. The only reason why Article 24 includes
20 that requirement must be that the drafters were anxious
21 that people accused of the same type of offending ought
22 to receive the same level, approximately, of sentences,
23 whether they were tried domestically or here.
24 Otherwise -- well, what else, I ask, can it mean?
25 JUDGE ROBINSON: Mr. Clegg, I wanted to find
1 out if you see any distinction between the language in
2 Article 24, which, as you have just said, is to have
3 recourse to the general practice, on the one hand, and
4 the language in Rule 101, which is (B), in the chapeau,
5 that "In determining sentence, the Trial Chamber shall
6 take into account the factors ..." and one of those
7 mentioned is "(iii) the general practice regarding
8 prison sentences ..."
9 MR. CLEGG: This is a question that's been
10 considered before. Insofar as there is any difference
11 between them, it's the Statute that must prevail over
12 the Rules, we would submit.
13 The Article uses the word "recourse"; it is a
14 stronger word than Rule 101 has used, "take into
16 I am not suggesting the Court is bound by the
17 rules or practice of the courts of the former
18 Yugoslavia. I'm conscious of the difference in
19 terminology. I would submit that the Court must pay
20 heed to the Article rather than the Rules if it
21 perceives a difference between the two. It's a
22 difference of weight, if it's a difference of
24 JUDGE ROBINSON: Thank you.
25 JUDGE MCDONALD: Mr. Clegg, if you again were
1 to refer to the sentencing judgement that the Trial
2 Chamber entered on July 14th, 1997, again we cite to
3 Article 41(1) of the SFRY Penal Code. In that article,
4 we are directed to, or at least the sentencing
5 authorities in the former Yugoslavia are directed to
6 look at the degree of criminal responsibility. It's
7 the sixth line down in that quote or the fifth line, I
9 MR. CLEGG: Yes.
10 JUDGE MCDONALD: So you say we're not bound
11 but we should look at it.
12 MR. CLEGG: Yes.
13 JUDGE MCDONALD: But in this respect, the
14 degree of criminal responsibility, maybe we should be
15 more bound.
16 MR. CLEGG: Well, I would have thought that
17 any sentencing tribunal ought to take account of that,
18 whether it's required to by the statute of the former
19 Yugoslavia or not, but that is surely one of the
20 principles that any sentencing court will take into
22 What one does have now, and I draw the
23 Court's attention to it, it's annexed to our brief, is
24 the letter to the Helsinki Committee for Human Rights
25 in Bosnia and Herzegovina, and there one can see the
1 level of sentencing reported in the courts in Republika
2 Srpska. In particular, we have a sentence of 15 years'
3 imprisonment for a charge of war crimes for several
4 murders and for the torturing of prisoners, it being
5 reported that the United Nations officials who were
6 monitoring the trial did not have any significant
7 objections regarding the court proceedings. It's
8 clearly a fairly brief report, and there are other
9 reports of sentences of eight and seven years for acts
10 falling short of killing.
11 That provides, we would submit, a useful
12 guide to what we can see is the general practice
13 regarding prison sentences in the courts of the former
14 Yugoslavia, and I note that the Prosecution, in their
15 brief, have not alluded to any other account of any
16 trials in the former Yugoslavia to suggest any higher
18 The establishment of a tariff in sentencing
19 is, in our submission, an important part of the
20 function of the Court. It's certainly not confined to
21 the matters mentioned by Mr. Keegan in his address.
22 It's a fundamental principle of sentencing in any
23 jurisdiction that like offences should receive a like
24 penalty in like circumstances. Anything else will
25 inevitably result in a feeling of unfairness by those
1 who have been disadvantaged as a result.
2 The establishment of a tariff, when one has a
3 number of different Trial Chambers and Appeals
4 Chambers, is, in our submission, all the more
5 important. The original Trial Chamber really had very
6 little to go on by way of comparison with its sentence
7 and the sentences of other Chambers because this was
8 the first trial. It has now got an advantage because
9 it can see the sentences that have been passed in all
10 the other trials that have been concluded.
11 In our submission, it is important to compare
12 one case with another, taking into account all of the
13 difficulties that that presents, in order to establish
14 what is the appropriate tariff for this type of conduct
15 by this type of person.
16 In our submission, a study of the other
17 sentences passed by these Trial Chambers discloses, to
18 the best of our knowledge, that in every case where
19 there has been multiple convictions, concurrent
20 sentences have been passed in relation to every count,
21 and the submission today by the Prosecutor that there
22 should be consecutive sentences for these counts is not
23 something that, to the best of our knowledge, has in
24 fact ever been done before by any Trial Chamber
25 considering these crimes. There are, we submit, good
1 reasons for that.
2 Included in the consideration of the
3 appropriate sentence must be an element of
4 rehabilitation, that there must be an element of
5 reflecting the hope that everyone will have that the
6 region covered by the former Yugoslavia will be able to
7 return to a peaceful, democratic system of government.
8 These trials, whilst, of course, they have a very
9 important part to play, must be looked at against that
11 The final matter, when considering the
12 principle of the appropriate tariff, is that there
13 ought to be a structure of sentencing that can reflect
14 the individual responsibility of the people who have
15 been indicted before this Chamber.
16 We do submit that there must be a sentencing
17 tariff that will permit somebody who is in a position
18 of command, who has made the decisions that others have
19 put into effect to receive a sentence that properly
20 reflects the added criminality that that brings with
21 it, and the sentence that is passed upon people such as
22 Tadic, who all accept was at the bottom of the ladder
23 of seniority and importance, ought to reflect the fact
24 that he was not a decision-maker in the sense that
25 others were, and that is a factor, we submit, that must
1 be put into the general picture.
2 So it is for those reasons that we submit,
3 firstly, the sentences for the fresh offences ought to
4 be made consecutive with the sentences -- concurrent
5 with the sentences that have already been passed. It
6 follows the practice of all of the Chambers, and I
7 boldly venture to suggest is likely to have been the
8 approach of the original Trial Chamber had it
9 considered the matter at one back in 1997.
10 In considering the level of sentences, of
11 course one must consider -- and it is clearly the
12 murder of the five that is the gravest of the new
13 charges -- one must consider whether a period of longer
14 than 20 years is demanded for the criminality contained
15 in that allegation. In our submission, it is not.
16 I draw attention to the role the accused
17 played in the two murders, one against the other. I
18 draw attention to the practice and sentences passed by
19 the courts in the former Yugoslavia as the Court is
20 enjoined to have regard to, and, therefore, we submit
21 that justice in this case can be done by passing
22 sentences that do not exceed the period passed by the
23 original Trial Chamber.
24 Subject to dealing with any questions that
25 the Court may have, the only other matter is the
1 question of substantial cooperation that, we would
2 submit, ought to be heard in private session.
3 JUDGE MCDONALD: Thank you, Mr. Clegg.
4 [Trial Chamber confers]
5 I have a few questions, Mr. Clegg. You speak of the
6 new counts that we are now to sentence that relate to
7 Jaskici, Counts 29, 30, and 31, and, of course, your
8 first argument, as I understand it correctly, is that
9 the Trial Chamber sentenced 20 years as the heaviest
10 sentence, and we should not go any further because what
11 we did do was to sentence 20. When we were
12 deliberating, we first looked at Count 2 [sic],
13 sentenced 20 years, and then all the other sentences
14 were to run concurrently with that sentencing.
15 I did ask you, well, that involved two
16 killings and, of course, now those other counts, 29,
17 30, and 31, involve five killings. You then tell me,
18 well, there's a difference in terms of the involvement
19 of Mr. Tadic in these offences, and since he was not
20 actively involved, as the Appeals Chamber found, or at
21 least recognised, then they should be treated
23 Now, if you look at the sentencing judgement
24 of the Trial Chamber in July of 1997, for Counts 10 and
25 11, that was -- well, in any case, the Trial Chamber
1 found that there was no direct involvement of
2 Mr. Tadic, that he was on the floor of the hangar at
3 the time that these offences were committed; however,
4 found him guilty of those offences. No direct
6 As a crime against humanity, we sentenced him
7 to 10 years. Then as a violations of the laws or
8 customs of war, we sentenced him to 9 years. Then I
9 refer you to Counts 22 and 23. That was the incident
10 involving Mr. Hase Icic, as I -- yes, it was -- and
11 there was direct involvement by Mr. Tadic, the Trial
12 Chamber found, and that was the beating and putting the
13 noose around Mr. Icic's neck, et cetera, until he
14 became unconscious. We sentenced less. We sentenced
15 as a crime against humanity 7 years and as a violations
16 of the laws or customs of war we sentenced 6 years.
17 At least in those two instances, where you
18 compare one where there was no direct involvement and
19 another where there was direct involvement, an actual
20 taking of the acts, carrying out of the acts, we still
21 sentenced more for Counts 10 and 11. How can you
22 explain that? You can start by saying we were
23 erroneous, but in addition to that.
24 MR. CLEGG: It's very difficult to analyse
25 the sentences that you've just alluded to, because, of
1 course, in one sense, the fact that they were
2 concurrent does not mean they were the subject of any
3 consideration or review after. Now --
4 JUDGE MCDONALD: I don't understand what you
5 mean by that.
6 MR. CLEGG: I'm not accepting that the Trial
7 Chamber necessarily came to the right conclusion.
8 JUDGE MCDONALD: I understand that.
9 MR. CLEGG: That's putting it more bluntly.
10 I think in every jurisdiction, or most jurisdictions,
11 the maximum penalty for a crime is the same whether you
12 are the actual participant or if you're an aider and
13 abettor, and, of course, I accept that. Nonetheless, I
14 would, despite what the Trial Chamber did in sentencing
15 the counts that you've referred to, invite the Court to
16 reflect on whether in practice the actual perpetrator
17 of a crime is, generally speaking, held to be more
18 criminally culpable than somebody who does aid, abet,
19 or encourage the commission of it, other things being
21 You can, of course, get a case where the
22 person who arranges a crime is more culpable than the
23 person who actually does it. If somebody has been
24 commanded to do something, it may be that the commander
25 is, in fact, deserving of greater punishment than the
1 person who was dispatched to carry out his orders. But
2 in this particular case it is very difficult, because
3 there's no finding of fact as to exactly what Tadic did
4 do or where he was when the people were killed. So it
5 really is extremely difficult to examine Counts 29
6 to 31 in the absence of such a finding, which all agree
7 no one could make.
8 The -- I think the best way that I can leave
9 it is by reference to the Count 1 killings, to invite
10 the Court to reflect on exactly what Tadic did then.
11 It's not just the fact that he was the person who
12 physically cut the throats of the two policemen, it was
13 also something that was done, on the evidence, in a way
14 that was cold blooded and without encouragement and
15 without the participation of others in a group that can
16 sometimes lead people to behave in a way that they
17 wouldn't otherwise behave.
18 So far as these counts --
19 THE INTERPRETER: Excuse me, could the
20 counsel please speak closer to the microphone?
21 MR. CLEGG: Sorry. There is, we submit, a
23 JUDGE MCDONALD: How do you respond to the
24 questions that we asked Mr. Keegan about the status of
25 capital punishment in the former Yugoslavia at the time
1 that the offences occurred? Do you agree that capital
2 punishment was available as a sentence at the time that
3 the offences occurred and even at the time that the
4 Tribunal was established, which is what the sentencing
5 Trial Chamber found?
6 MR. CLEGG: As a matter of record, yes, I
7 accept that that was the law but, of course, it's not
8 the position today.
9 JUDGE MCDONALD: I understand that.
10 MR. CLEGG: You are passing sentence today.
11 It's important that when you are passing sentence today
12 you reflect what the current state of the law is in
13 Yugoslavia, because the Article enjoins you to have
14 regard to the law in its -- it's using the current
15 tense. So it's the law today that the Article 24
16 refers to, and the position today is that there is no
17 capital punishment, and whatever the position was two
18 years ago, in our submission, is nothing to the point.
19 JUDGE MCDONALD: We would not sentence then
20 based upon what would be the penalties imposed at the
21 time the offences occurred, instead look at what the
22 maximum penalties would be today?
23 MR. CLEGG: Yes. That is the normal method
24 of approaching sentencing, because unless the law is
25 changed so as only to affect future crime, then a
1 change in sentencing policy would normally bite when
2 somebody stands to be sentenced.
3 JUDGE MCDONALD: You've recommended the
4 sentences run concurrently, but it is your
5 recommendation that the sentence imposed for Counts 29,
6 30, and 31 not exceed 20 years.
7 MR. CLEGG: Yes.
8 JUDGE MCDONALD: Do you have a recommendation
9 as to what is the appropriate sentence?
10 MR. CLEGG: I would agree with the Prosecutor
11 that the appropriate sentence is 15 years.
12 JUDGE MCDONALD: It would run concurrently
13 with Count 1.
14 MR. CLEGG: Yes.
15 JUDGE MCDONALD: Okay.
16 JUDGE ROBINSON: Mr. Clegg, how does that tie
17 in with your totality principle? I understood you to
18 be saying that one would have a concept of the totality
19 of sentence, the appropriate sentence, but are you now
20 saying then that, applying that totality principle,
21 15 years would be the appropriate sentence across the
23 MR. CLEGG: No. The 20-year sentence would
24 still stand on Count 1, that's a sentence that is not
25 under review in this hearing.
1 JUDGE ROBINSON: The 15 years is within
3 MR. CLEGG: Yes. It's a two-step approach,
4 in our submission. You firstly decide the appropriate
5 sentence for the count. I would say that would be 15
6 years. Then when you look at the question of totality,
7 you bring in all the principles of sentencing and say,
8 "Do we need to make that consecutive or can we make it
10 JUDGE ROBINSON: And you justify the 15
11 years, which is lower than the 20 years, on the ground
12 that the accused person was not physically involved.
13 MR. CLEGG: Yes. On the facts of the case.
14 JUDGE ROBINSON: Were he physically involved,
15 what would your recommended sentence be?
16 MR. CLEGG: Well, it would -- I'm not trying
17 to duck the question. It would depend rather on the
18 nature of the involvement and what actually happened.
19 JUDGE ROBINSON: If he had slit their
20 throats, for example.
21 MR. CLEGG: It's very difficult to argue for
22 less than 20 years.
23 JUDGE ROBINSON: Thank you.
24 [Trial Chamber confers]
25 JUDGE MCDONALD: Mr. Clegg, if Mr. Tadic
1 wishes to make a statement during these proceedings, I
2 want you to know that he's welcome to do so, but we
3 will stand in recess for -- I've been overruled again.
4 I'm dissenting again. So we'll stand in recess for
5 20 minutes. I imagine when we return now, we will then
6 be in private session. Very good.
7 --- Recess taken at 11.48 a.m.
8 --- On resuming at 12.02 p.m.
9 [Private session]
13 pages 64 to 81 redacted – in private session
16 [Open session]
17 JUDGE MCDONALD: You may proceed, Mr. Tadic.
18 Thank you.
19 THE ACCUSED: First of all, I would like to
20 say several matters regarding the material which was
21 referred to here and the question of whether it is
22 relevant or not for the proceedings of this Tribunal.
23 I did not keep this material in my possession
24 in order to calculate it. I used the first opportunity
25 I had to turn it over to whomever at this Tribunal,
1 because I had previously heard that those documents had
2 been burned. During my trial, I never saw any similar
3 documents referring to these same incidents and
5 Of course, I was afraid for my family. My
6 family at that time was in Serbia, they're now safer,
7 but my brothers now continue to live there, and they
8 may be suspected of having discovered this material
9 with me.
10 I think that I know a lot about this material
11 because I poured over the material and read through it,
12 and in reading through it, I found a number of names
13 who were involved in the events in Omarska and
14 Keraterm, and these are people who I know. I still am
15 offering cooperation on that. I am not asking for any
16 privileges. I just want to help the role of each of
17 the individuals in that area be clarified.
18 As far as the war of 1996 is concerned, my
19 family and myself were all victims. We were definitely
20 the victims of the authorities of the Republika Srpska,
21 of the police and military, and I used the first
22 opportunity to remove my family from that area.
23 In 1996, I had been in the territory of the
24 municipality of Prijedor, I had a choice to either
25 leave or stay and be killed, and I chose to flee, and
1 the war continued until 1996 and 1997. I am very sorry
2 for all the victims who suffered in the territory of
3 Prijedor municipality, and their families, and I am
4 doing everything that I can, and my family continues to
5 live there. So I am doing everything I can, through my
6 family, to improve relations as much as possible, and I
7 would like you to take this into consideration.
8 My immediate family lives far away from this
9 area, but I am very sorry for what happened there, and
10 this is all I have to say. Thank you.
11 JUDGE MCDONALD: Thank you, Mr. Tadic. There
12 is an indication in the filings by the Defence that
13 Mr. Tadic has remarried his wife.
14 MR. CLEGG: That is correct.
15 JUDGE MCDONALD: Is that correct?
16 MR. CLEGG: That is correct.
17 JUDGE MCDONALD: Do you have some evidence of
18 that, a marriage certificate or something?
19 MR. CLEGG: May we file that within seven
20 days? I haven't asked for the marriage certificate. I
21 don't know if it's here or in Serbia.
22 JUDGE MCDONALD: Where were they married and
24 MR. CLEGG: They were actually remarried in
25 the U.N. Detention Centre. Maybe it could be confirmed
1 from there, but the marriage certificate itself was
2 taken back to Serbia.
3 JUDGE MCDONALD: I think that that's probably
4 a way to confirm it.
5 MR. CLEGG: It can be confirmed by the
6 commander, I'm sure.
7 JUDGE MCDONALD: Now, once again, sentencing
8 is scheduled for November the 11th at 10 a.m.
9 No additional matters to be submitted by
10 counsel for the Defence? By the Prosecution? Fine.
11 Then we are adjourned.
12 --- Whereupon the hearing adjourned at
13 12.47 p.m., to be reconvened on
14 Thursday, the 11th day of November,
15 1999, at 10 a.m.