"Sentencing Judgement"

9 October 2001
Trial Chamber III (Judges May [Presiding], Robinson and Fassi Fihri)

Procedural Background

• The four co-accused were charged with many counts of grave breaches of the Geneva Conventions of 1949 under Article 2 of the Statute1 and of violations of the laws or customs of war under Article 3 thereof2. The charges arose from events in the Celebici prison-camp in central Bosnia and Herzegovina.

• On 16 November 1998, Trial Chamber II quater originally acquitted Zejnil Delalic of all the counts charged against him and determined as follows the roles of the three other co-accused:

  (1) Zdravko Mucic was the commander of the camp and as a superior was found guilty of crimes committed by his subordinates including murder, torture and inhuman treatment and as personally responsible for the unlawful confinement of civilians. The Trial Chamber sentenced him to seven years' imprisonment.

  (2) Hazim Delic was the deputy commander of the camp and was found guilty as being personally responsible for crimes including murder, torture and inhuman treatment. The Trial Chamber sentenced him to twenty years' imprisonment.

  (3) Esad Landzo was a guard at the camp and was found guilty as being personally responsible for crimes including murder, torture and cruel treatment. The Trial Chamber sentenced him to fifteen years' imprisonment3.

• On 20 February 2001, the Appeals Chamber affirmed the acquittal of Zejnil Delalic, allowed appeals against convictions and sentences and remitted to a Trial Chamber the question of what adjustment, if any, should be made to the sentences of the three co-accused4.
  

The Judgement

The Trial Chamber considered that the present case was best resolved by way of a single and global sentence in the case of each co-accused, thereby reflecting the total criminality and culpability of the accused5. The Trial Chamber sentenced Zdravko Mucic to nine years' imprisonment, Hazim Delic to eighteen years' imprisonment and Esad Landzo to fifteen years' imprisonment.

The Reasoning

Zdravko Mucic

In considering an appropriate revised sentence the Trial Chamber was bound by the decision of the Appeals Chamber that the sentence did not sufficiently reflect the seriousness of the offences or reflect the totality of Zdravko Mucic's criminal conduct and could not now go against it. The Appeals Chamber indicated that it would have considered a sentence of around ten years' imprisonment appropriate had it not been for the adjustment of sentence necessary due to the dismissal of the cumulative counts. In these circumstances the Trial Chamber reflected as to whether any reason had been submitted by the parties about why it should depart from that indication. The Trial Chamber found that no such reason had been submitted.

It was not possible for Trial Chamber III to ascertain the precise effect, if any, which the original Trial Chamber's adverse comment on Zdravko Mucic's failure to testify during his trial may have had on his sentencing. However, the Trial Chamber was not in a position to state that it had had no effect. Under those circumstances, the Trial Chamber expressed the view that, since it may have had an effect, the original sentence should be reduced accordingly. However, this could be given proper effect by a small reduction and the Trial Chamber considered that a single sentence of nine years' imprisonment was appropriate.

Hazim Delic

The Trial Chamber was directed to consider what adjustment, if any, should be made to the sentence imposed on him as a result of the quashing of his conviction on counts 1 and 2. These counts related to the wilful killing/murder of a detainee as a result of a beating. Nevertheless, on appeal the accused's convictions of one offence involving wilful killing (by beating), one offence of wilfully causing great suffering (again by beating), two offences of torture by way of rape and one offence of inhumane treatment of detainees involving the use of an electric device on prisoners were upheld.

Having considered all these factors, the Trial Chamber found that there had been some reduction in the totality of criminality of the accused following his appeal. Nonetheless, the reduction was slight given the very serious offences for which the accused remained convicted. Accordingly, the Trial Chamber considered that a reduction of two years in the sentence would correctly reflect the total criminality of the accused and that a single sentence of 18 years was therefore appropriate.

Adjustment of sentences as a result of the dismissal of cumulative convictions

Finally, the Trial Chamber considered whether any adjustment should be made to the sentences in the light of the dismissal of the cumulative convictions. Before this case, the practice of the Tribunal had been to permit convictions on cumulative offences and to impose concurrent sentences in order to avoid unfairness. The original Trial Chamber had followed this practice.

In remitting the case the Appeals Chamber noted that the final sentence should reflect the totality of the culpable conduct and overall culpability of the offender which can be achieved either by the imposition of one sentence or several sentences (to run consecutively or concurrently) since this matter lies with the discretion of the Trial Chamber.

The Trial Chamber found that the argument that the sentence should be reduced because the number of convictions was reduced was not realistic. In the case of the three co-accused the totality of their criminal conduct had not been reduced by reason of the quashing of the cumulative convictions. The original Trial Chamber had specifically kept this factor in mind in passing the sentences which clearly would have been the same without the cumulative convictions.

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1. "The International Tribunal shall have the power to prosecute persons committing or ordering to be committed grave breaches of the Geneva Conventions of 12 August 1949, namely the following acts against persons or property protected under the provisions of the relevant Geneva Convention:
(a) wilful killing;
(b) torture or inhuman treatment, including biological experiments;
(c) wilfully causing great suffering or serious injury to body or health;
(d) extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;
(e) compelling a prisoner of war or a civilian to serve in the forces of a hostile power;
(f) wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial;
(g) unlawful deportation or transfer or unlawful confinement of a civilian;
(h) taking civilians as hostages."
2. "The International Tribunal shall have the power to prosecute persons violating the laws or customs of war. Such violations shall include, but not be limited to:
(a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering;
(b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
(c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings;
(d) seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science;
(e) plunder of public or private property."
3. The Prosecutor v. Zejnil Delalic et al. ("Celebici Camp"), Case No. IT-96-21-T, Trial Chamber II quater, Judgement, 16 November 1998 (summarised in Judicial Supplement No. 1).
4. The Prosecutor v. Zejnil Delalic et al. ("Celebici Camp"), Case No. IT-96-21-A, Appeals Chamber, Judgement, 20 February 2001 (summarised in Judicial Supplement No. 23).
5. See also The Prosecutor v. Jean Kambanda, Case No. ICTR-97-23-T, Trial Chamber I, Judgement, 4 September 1998; The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Trial Chamber I, Judgement, 2 October 1998; The Prosecutor v. Georges Anderson Nderubumve Rutaganda, Case No. ICTR-96-3-T, Trial Chamber I, Judgement and Sentence, 6 December 1999; The Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, Trial Chamber I, Judgement and Sentence, 27 January 2000; The Prosecutor v. Omar Serushago, Case No. ICTR-98-39-S, Trial Chamber I, Sentence, 5 February 2000; The Prosecutor v. Goran Jelisic ("Brcko"), Case No. IT-95-10-T, Trial Chamber I, Judgement, 14 December 1999 (summarised in Judicial Supplement No. 10); The Prosecutor v. Tihomir Blaskic ("Lasva River Valley"), Case No. IT-95-14-2-T, Trial Chamber I, Judgement, 3 March 2000 (summarised in Judicial Supplement No. 13); The Prosecutor v. Dragoljub Kunarac et al. ("Foca"), Case No. IT-96-23-T & IT-96-23/1-T, Trial Chamber II, Judgement, 22 February 2001 (summarised in Judicial Supplement No. 23); The Prosecutor v. Dario Kordic & Mario Cerkez ("Lasva River Valley"), Case No. IT-95-14/2-T, Trial Chamber III, Judgement, 26 February 2001 (summarised in Judicial Supplement No. 23); The Prosecutor v. Radislav Krstic ("Srebrenica"), Case No. IT-98-33-T, Trial Chamber I, Judgement, 2 August 2001 (summarised in Judicial Supplement No. 27); The Prosecutor v. Miroslav Kvocka et al. ("Omarska & Keraterm Camps"), Case No. IT-98-30/1-T, Trial Chamber I, Judgement, 2 November 2001.