Tribunal Criminal Tribunal for the Former Yugoslavia

Page 1

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

Page 2

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.

Page 3

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

8 32.

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

Page 4

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

7 good.

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

15 circumstances.

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.

Page 5

1 Who will be presenting for the Office of the

2 Prosecutor?

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

16 more.

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

Page 6

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

Page 7

1 convictions.

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

9 region.

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

Page 8

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

Page 9

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

15 re-offend.

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

Page 10

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

Page 11

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.

Page 12

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

Page 13

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

Page 14

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

Page 15

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

10 future.

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

17 material.

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

Page 16

1 complete closed, but whatever is preferable to the

2 Chamber.

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

Page 17

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

5 appropriate.

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

11 hearing?

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.

Page 18

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

Page 19

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

Page 20

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.

Page 21

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

21 severe.

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

Page 22

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

Page 23

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

Page 24

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

Page 25

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

Page 26

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

7 law.

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

21 Chambers.

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

Page 27

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

5 consideration.

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

Page 28

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

7 incorrect?

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

Page 29

1 unit.

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

23 them.

24 Again, we would submit that the types of

25 factors which may play a predominant role in any given

Page 30

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

20 Yugoslavia.

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

Page 31

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

Page 32

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.

Page 33

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

24 regard.

25 MR. KEEGAN: Yes, Your Honour.

Page 34

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

18 details.

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

Page 35

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

4 case.

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

Page 36

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,

Page 37

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

Page 38

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

Page 39

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.

Page 40

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.

Page 41

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

16 person.

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

Page 42

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

17 all.

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

Page 43

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

Page 44

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

14 that.

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

Page 45

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

14 argument.

15 Mr. Livingston, did you have something to

16 say?

17 MR. CLEGG: I think I just said "consecutive"

18 instead of "concurrent," but I hope the matter is

19 clear.

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

Page 46

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

21 two?

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

Page 47

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

25 conflict.

Page 48

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

Page 49

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

Page 50

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

15 account."

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

23 anything.

24 JUDGE ROBINSON: Thank you.

25 JUDGE MCDONALD: Mr. Clegg, if you again were

Page 51

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

8 suppose.

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

21 account.

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

Page 52

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

17 tariff.

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

Page 53

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

Page 54

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

10 background.

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

Page 55

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

Page 56

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

22 differently.

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

Page 57

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

5 involvement.

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

Page 58

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

20 equal.

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

Page 59

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

22 distinction.

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

Page 60

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

Page 61

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

22 board?

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.

Page 62

1 JUDGE ROBINSON: The 15 years is within

2 that.

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

9 concurrent?"

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

Page 63

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]

10 (redacted)

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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,

Page 83

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

4 persons.

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

Page 84

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

23 when?

24 MR. CLEGG: They were actually remarried in

25 the U.N. Detention Centre. Maybe it could be confirmed

Page 85

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.

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