Tribunal Criminal Tribunal for the Former Yugoslavia

Page 164

1 Friday, 23 February 2001

2 [Appeal Proceedings]

3 [Open session]

4 [The appellant entered court]

5 --- Upon commencing at 9.33 a.m.

6 JUDGE SHAHABUDDEEN: Madam Registrar.

7 THE REGISTRAR: Case number IT-95-10-A, the Prosecutor versus

8 Goran Jelisic.

9 JUDGE SHAHABUDDEEN: Now, the appearances are as before. The

10 proceedings continue. We now have before us the cross-appeal.

11 Ready, Mr. Clegg?

12 MR. CLEGG: Ready.

13 Can I indicate to the Chamber that Mr. Babic will be relieving me

14 of some of the burden this morning, and we are dividing our submissions

15 into two halves so far as sentence is concerned.

16 The Court will have observed that the appellant's brief

17 concentrated on the conduct of the trial Judge both during the course of

18 the trial on genocide, where verdicts were returned in favour of the

19 accused, and also during the protracted sentence hearings, when a large

20 number of witnesses were called to the effect that, prior to the conflict

21 in the former Yugoslavia, the appellant had exhibited no signs of racial

22 prejudice against Muslims and had ongoing good relations with a number of

23 people from that faith.

24 We, of course, rely upon the evidence that was called during the

25 sentencing hearing to establish those two facts, but I do not press today

Page 165

1 the criticism of the trial Judge during the hearing on genocide because,

2 of course, that was a trial in which none of the offences for which he was

3 being sentenced were being examined by the Trial Chamber.

4 The position so far as the facts that gave rise to the pleas of

5 guilty before the Trial Chamber is that, following lengthy consideration

6 by both parties, an agreed statement of facts was arrived at. It was

7 incorporated into an amended indictment and the appellant pleaded guilty

8 on that basis.

9 I am confident that this Appeals Chamber will deal with his

10 sentence on the basis of those agreed facts and on no other basis.

11 Obviously, he cannot be prejudiced as a result of the fact that he stood

12 trial for another offence of which he was acquitted. The basis on which

13 he pleaded guilty, having been agreed between the parties, must remain the

14 basis upon which he was sentenced.

15 It is our submission that the sentence passed of 40 years'

16 imprisonment is excessive. The primary ground of appeal is that the Trial

17 Chamber did not give sufficient attention to the need to develop a range

18 of sentences based upon the relative position of the accused. The

19 judgement of the Trial Chamber was given in December of 1999. It did

20 therefore not have the benefit of the opinion of the Appeal Chamber

21 delivered the following month in January 2000 in the appeal of Dusko

22 Tadic.

23 The Appeal Chamber in the Tadic case reduced the sentence of Tadic

24 to one of 20 years, and the basis upon which the sentence was so reduced

25 was primarily upon the second ground advanced by the appellant, namely, an

Page 166

1 error committed by the Trial Chamber with respect to the need to develop a

2 range of sentences based upon the relative position of an accused. And we

3 would commend to the Court pages 23, 24, and 25 of the Tadic Sentencing

4 Judgement. At paragraph 55, the Appeal Chamber came to the considered

5 opinion that the sentence passed failed to adequately consider the need

6 for sentences to reflect the significance of the role of the appellant in

7 the broader context of the conflict in the former Yugoslavia.

8 It is our submission that had the Trial Chamber in the instant

9 case had the benefit of considering the Appeal Chamber's views in the

10 Tadic case, that it would not and could not have passed the sentence that

11 it did of 40 years' imprisonment.

12 A study of the facts, in our submission, reveals nothing to choose

13 between the two cases. Each involved the commission of a number of

14 murders against victims of a different ethnic background or religion. The

15 number and type of murders in both cases was broadly similar. They

16 included in each case the brutal execution of helpless victims, and the

17 Court will remember, some of the Court I know will remember, the two

18 convictions of Tadic for killing the two policemen by slitting their

19 throats in the village that he and others had taken during the course of

20 that conflict.

21 His, Tadic's, guilt embraced not only ethnic cleansing of more

22 than one village, but also, of course, his cruel mistreatment of victims

23 in a detention camp, cruelty that would justify all of the well-deserved

24 adjectives applied to the actions of Jelisic in the instant case. If

25 anything, the cruelty in the Tadic case was worse, embracing a degree of

Page 167

1 sado-sexual mistreatment, including the biting off of a man's testicle.

2 We would submit that on any broad comparison of the facts of the

3 two cases that there can be little to choose between them. Neither had a

4 command position. They were both, in every sense, men of low position in

5 the broader context of the conflict. Neither were commanders or

6 architects of the strategy of ethnic cleansing. Of course, each was a

7 willing executioner. One of the facts that emerges from any study of war

8 crimes, both contemporary and historical, is that it is within the

9 capacity of all to act as camp guards and executioners, and one has only

10 to reflect on the ill-treatment that occurred in the Second World War of

11 camp detainees throughout Europe to see powerful evidence of that. The

12 fact that both these men were willing, if not enthusiastic, in their

13 ill-treatment of detainees, sadly, in the history of war crimes, is not

14 either remarkable or unusual.

15 The fact remains that neither were in a command position; neither

16 were the architects of the strategy of ethnic cleansing. Both were, in

17 truth, foot soldiers, not in positions of command. Of course, positions

18 of power over those that were detained. Every camp guard is in a position

19 of power, but that is different from a position of command.

20 The sentences are a stark contrast. Tadic, a man of mature years

21 who pleaded not guilty and contested the case vehemently throughout

22 received an ultimate total sentence of 20 years. Jelisic, a young man in

23 his early 20s who pleaded guilty at the very outset, received twice that

24 figure of 40 years.

25 Whilst I am not praying in aid the psychological problems of

Page 168

1 Jelisic in a way that would significantly mitigate his conduct, it is a

2 fact that he did suffer a severe personality disorder. No such excuse

3 existed in the Tadic case for his conduct.

4 The aggravating features identified in the Jelisic case by the

5 Trial Chamber all existed in the Tadic case. There is nothing, we submit,

6 in truth to distinguish one case from the other.

7 Now, it is our respectful submission that it be of vital

8 importance to the ongoing reputation of this Court that consistent

9 sentences are passed for broadly similar conduct. Nothing will bring a

10 criminal justice system more into disrepute than the appearance that its

11 decisions are capricious, inconsistent, or driven by personal dislike of

12 an individual.

13 Of course, in a sense, anyone who had to listen to the evidence on

14 the genocide trial may unconsciously have been influenced against the

15 defendant Jelisic when it came to sentence him for what he, in fact,

16 admitted, which, so far as the indictment is concerned, involved some 12

17 murders and other offences of ill-treatment.

18 It is not just the Tadic Judgement upon which we rely to

19 demonstrate what we submit is an inconsistent approach by the Trial

20 Chamber in this court. The written brief submitted on the appellant's

21 behalf analyses the case of Erdemovic, which Mr. Babic had the advantage

22 of appearing in. I don't intend to repeat all that he has written about

23 that case in the brief. Repetition does not advance any point submitted

24 to this Trial Chamber, but we commend what he has said.

25 Other decisions both here and in Rwanda also highlight the

Page 169

1 contrast identified by an analysis of the Tadic Judgement. In the Rwanda

2 case of Serushago and the Prosecutor, judgement again being given after

3 the judgement in this case and therefore not a case that the Trial Chamber

4 would have been able to consider when deciding where, in the broad range

5 of sentences, it was right to position an appellant here, a sentence of 15

6 years' imprisonment for genocide was upheld by the Appeal Chamber. That

7 embraced crimes against humanity, murder, extermination, and torture,

8 killing vastly more people than ever lost their life in this part of the

9 former Yugoslavia, let alone justifying any comparison with the numbers in

10 fact killed by Jelisic. In the Serushago case, over 300 victims were

11 killed in just one incident. He, Serushago, of course, was in a position

12 of command, quite different from that of Jelisic.

13 In giving judgement, this Appeal Chamber, in considering the

14 sentence of 15 years' imprisonment for genocide in that case, said at

15 paragraph 33 of the judgement that it was "within the discretionary

16 framework" of the Trial Chamber to pass such a sentence.

17 What we ask rhetorically, that if that be right, as we submit it

18 was, that 15 years was within the discretionary framework for the crime of

19 genocide when hundreds of thousands have been killed as a consequence of

20 the actions of somebody who held a position of command, then how, we say

21 rhetorically, can a sentence of 40 years in this case be justified? There

22 is, in truth, no fair comparison to be made.

23 In the Kayishema and Ruzindena Judgement, another Rwandan case,

24 the Court had to consider what was described as planned, instigated,

25 ordered, widespread killings on a vast scale. Both men were guilty of

Page 170

1 genocide. The Court distinguished between them on the basis of their

2 rank.

3 Ruzindena, at paragraph 543 of the judgement, was described in the

4 following manner: "as someone who played a leadership role in the

5 systematic pattern of the extermination of the Tutsis who had sought

6 refuge in the area of Besaro. He led attacks on them where thousands were

7 killed."

8 And I quote from the judgement, at paragraph 542, the following

9 words: "They were killed regardless of gender or age. Men and women, old

10 and young, were killed without mercy. Children were massacred before

11 their parents' eyes; women raped in front of their families. No Tutsi was

12 spared, neither the weak nor the pregnant."

13 For planning and putting into operation that genocide, the

14 sentence of 25 years' imprisonment was passed on Ruzindena.

15 Moving to the former Yugoslavia, the Celebici case is also

16 instructive. Mucic was the commander of the camp; he was sentenced to

17 seven years for murder and cruel treatment. Delic, 20 years, murder,

18 torture, wilfully causing great suffering and serious bodily harm.

19 Landzo, a young man, I think but 23, 15 years for murder, torture, and

20 suffering.

21 A quote from the Court's description of him is perhaps relevant

22 when looking at the adjectives properly described to the conduct of

23 Jelisic in this case. Of Landzo, who received a sentence of 15 years, the

24 Tribunal said: "The nature of his crimes is suggestive of significant

25 imagination and a perverse pleasure in the infliction of pain and

Page 171

1 suffering."

2 It's not attractive to try to choose adjectives to describe the

3 type of conduct that this Court and the Tribunal in Rwanda has to sit in

4 judgement over. There is, in truth, no adjectives available in any

5 language of the world to properly describe and condemn the conduct these

6 Courts need to deal with. In fact, the only guide to sentence in such a

7 case must be, we submit, the guidance of other cases and the development

8 of a tariff that ensures that there is a just disposition of cases, one

9 weighed against the other.

10 This Court I know is conscious of the fact that it is not just, of

11 course, the punishment of the crimes that is relevant, but the role that

12 the Court needs to play in the ultimate rehabilitation of the area of

13 Europe where this conflict has been fought over.

14 Moving on to the Blaskic case. Here the Court had to deal with a

15 commander, a decision-maker near the very top of the chain of command, a

16 General under whose command vast numbers of people were killed. It was

17 accepted by the Tribunal that he ordered the widespread extermination of

18 Muslims, including the massacre at Ahmici, but not confined to it. The

19 Trial Chamber described that massacre in these words: "A carefully

20 prepared attack, many Muslim children, women, and adults were

21 systematically murdered, sometimes burnt alive in their home, houses

22 plundered and set alight, mosques and religious buildings destroyed."

23 In the Kupreskic case there were six defendants. It also, of

24 course, involved the massacre at Ahmici on the 16th of April 1993 when 116

25 people were killed in the attack that I have just described. The Court in

Page 172

1 that case said that the village of Ahmici had gone down in history as

2 comprising one of the most vicious illustrations of man's inhumanity to

3 man, and compared the name of the village in the same sentence as that of

4 Dachau and My Lai.

5 The sentences passed for those actively involved in that attack,

6 Zoran Kupreskic, eight years; his brother, Vlatko, six years; Papic, 15;

7 Santic, who was the commander of the company, 25 years.

8 It's against that background that we submit that the sentence here

9 of 40 years is significantly out of step with other sentences passed by

10 both this Tribunal and that dealing with crimes in Rwanda. In applying

11 the passage that I've already alluded to in the Tadic Judgement, we would

12 submit that it falls significantly outside the range of sentences that

13 has, since judgement was passed, developed more clearly, perhaps, than it

14 had before.

15 When compared with the Tadic case, we say that there are very

16 broad similarities, and we bluntly and boldly submit to the Appeal Chamber

17 that if the proper sentence in Tadic was one of 20 years, then we submit

18 that there could be no justification on a comparable basis for passing any

19 longer sentence in the instant appeal.

20 May I say a few words about rank. Jelisic did not hold any rank.

21 He was not a commander. His plea was accepted on that basis, and in our

22 submission, he must stand to be dealt with in accordance with that agreed

23 plea.

24 When he was first arraigned before the Court, his first indictment

25 at page 10 alleged that during most of May of 1992, he acted as commander

Page 173

1 of Luka camp. That was a matter that was the subject of dispute by him,

2 and the words were deleted by agreement from the agreed statement of facts

3 that formed the basis of his plea. Once those pleas were accepted, the

4 Court, in our submission, cannot go behind that agreed position.

5 Against that background, paragraph 95 of the judgement is

6 unfortunately phrased. It begins with the following words: "It has also

7 not been established beyond all reasonable doubt whether the accused

8 killed at Luka camp under orders. Goran Jelisic allegedly presented

9 himself to the detainees as the Luka camp commander"; and concludes, "The

10 Trial Chamber does not doubt that the accused exercised a de facto

11 authority over the staff and detainees at the camp."

12 The position, in truth, is that the allegation that he was in

13 command had been expressly deleted from the agreed factual basis upon

14 which he tendered his pleas. What this paragraph, I submit, probably

15 identifies and is alluding to is that everybody who is at a camp such as

16 that in a guard role has a position of power over the detainees that

17 Jelisic, as others in the past have, abused. And of course, somebody with

18 a position of power will be viewed as having the power to command by those

19 over whom he exercises that power. It is a perfectly natural, human

20 reaction.

21 It does not mean in fact, of course, that he is the commander of

22 the camp in the sense that he is ordering and directing the ill-treatment

23 and murder of detainees over and above that which he is personally

24 responsible for. And indeed, of course, the charges to which he pled only

25 relate to his own physical acts of murder and ill-treatment, and he did

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Page 175

1 not fall to be sentenced upon the basis of what others may have done in

2 the same institution on some other occasion.

3 In our submission, the distinction between someone who is in a

4 position of command has been recognised consistently by this Court when

5 the Court has moved to consider sentence. This man must be dealt with on

6 the basis that he had no rank.

7 May I move now to consider his plea of guilty. In our submission,

8 that ought to attract a discount in sentence. It is a plea of guilty that

9 he tendered against the advice of his then lawyers who advised him,

10 wrongly I would submit, that he had a proper defence to the allegation of

11 crimes against humanity. But in the face of the advice of his own

12 lawyers, he tendered the pleas that he did.

13 A plea of guilty in most jurisdictions of the world will attract a

14 discount in sentence. The reasons are, in part, pragmatic because most

15 criminal justice systems can only survive where a significant number of

16 people do admit their guilt; otherwise, the systems of justice throughout

17 the world would collapse under the weight of work. The whole philosophy

18 behind plea bargaining in the United States of America is primarily

19 pragmatic.

20 In our submission, this Chamber as well ought to send out a signal

21 to those who are in detention and those who await arrest that pleas of

22 guilty will attract a discount in sentence, particularly perhaps when

23 tendered against the advice of trial counsel.

24 A plea of guilty, of course, is separate from remorse. A plea of

25 guilty may be tendered for pragmatic reasons, just as a discount for

Page 176

1 sentence may be given for pragmatic reasons. It does not follow that a

2 man who pleads guilty has remorse; of course I accept that.

3 It is always difficult in a common law jurisdiction for a

4 defendant to convince a court that he does have remorse. Here in this

5 trial, the defendant was, I almost said, denied the opportunity of giving

6 evidence in the trial. He never had an opportunity because the trial

7 ended at the end of the Prosecution case. So the Court never had, in

8 fact, the opportunity to judge him themselves through sworn testimony. In

9 many ways, it's difficult to believe that somebody who acted in the way

10 that he did could have remorse.

11 But we do submit that the Trial Chamber misdirected itself as to

12 the burden that the accused had to discharge in order to convince them

13 that he had remorse. It's at paragraph 127 of the judgement where, we

14 submit, the Trial Chamber fell into error.

15 The first sentence reads: "The Trial Chamber is not convinced

16 that the remorse which Goran Jelisic allegedly expressed to the expert

17 psychiatrist was sincere."

18 I venture to suggest that in the vast majority of cases, both

19 internationally and nationally, a court can very rarely be convinced of

20 someone's remorse. Everyone is going to express remorse when they admit

21 crime, or, at any rate, almost everyone. It's not, we submit, for a

22 defendant to have to satisfy the Court that his remorse is genuine. We

23 would respectfully submit that in circumstances such as those that existed

24 here, a Trial Chamber ought to accept expressions of remorse that were

25 accepted as sincere by an expert psychiatrist unless it was convinced that

Page 177

1 the expressions of remorse were false.

2 We would, with respect, as it were, reverse the evidential

3 approach of the Trial Chamber at paragraph 127.

4 The position before the Trial Chamber was that remorse was

5 expressed in the traditional way it is done in common law jurisdictions;

6 namely, through the mouth of his advocate, through his pleas of guilty to

7 the indictment, through his admission, despite the absence of evidence, of

8 three murders that he had not been indicted for, through the extensive

9 interviews that he willingly gave to the investigators, and the evidence

10 of the witnesses, in particular DQ, DF, and DA, to which reference is made

11 in the written brief.

12 Finally, for the matters that I intend to cover before I hand the

13 floor to Mr. Babic, there is the question of his youth. He was but 23

14 years old at the time he committed these crimes. No defence, of course.

15 But this Tribunal has consistently accepted youth as mitigation. In the

16 Landzo case it did, when he was 19; in Erdemovic, when he was 23; and in

17 Furundzija, when he was also 23.

18 I quote from the footnote 1696 in the Blaskic Judgement, at page

19 255, the following words:

20 "The ICTY considers accused aged between 19 and 23 at the time of

21 the facts as being young." And youth, in the Blaskic Judgement at that

22 page, was expressly identified as a mitigating circumstance.

23 Indeed, the Trial Chamber itself clearly hoped that with

24 appropriate medical and psychiatric assistance during the prison sentence

25 Jelisic will inevitably serve, he will be able to be rehabilitated, as

Page 178

1 they recommended that he undergo psychological and psychiatric treatment

2 in whichever host country accepts him as a prisoner.

3 Those are the submissions that I advance on behalf of the

4 appellant. I'd now ask for Mr. Babic to address the Court on the

5 remaining grounds.

6 JUDGE POCAR: Mr. Clegg, may I have a clarification from you.

7 During your arguments, you mentioned that the Trial Chamber may have been

8 influenced by the evidence heard during the trial on genocide in deciding

9 the sentence to be imposed for the crimes to which Mr. Jelisic pleaded

10 guilty.

11 Can you clarify one matter to me, whether it is your position that

12 the Trial Chamber should not have taken into account such evidence, and

13 that if it did so, it may have incurred an error either of law or of fact,

14 or both possibly, that the Appeal Chamber should take into account and

15 consider under Article 25 of the Statute. I would like to know which is

16 your position in this respect.

17 MR. CLEGG: Certainly. The crime of genocide and the trial of

18 genocide embraced facts far greater than he had pleaded guilty to.

19 Insofar as the evidence before the Trial Chamber dealt with the counts on

20 the indictment to which he had pleaded, then I would accept that the Trial

21 Chamber could consider that evidence, but I would submit it should do so

22 cautiously because it was not being cross-examined as to mitigation but

23 being cross-examined solely as to its applicability to the allegation of

24 genocide. But I concede the Trial Chamber could look at the evidence, as

25 it were, on the individual counts.

Page 179

1 But the evidence before the Trial Chamber on the genocide trial

2 went far wider than the agreed facts, and indeed, went behind the agreed

3 facts by asserting a factual position that had expressly been abandoned at

4 the time of plea. The Trial Chamber ought not to be influenced by any of

5 that evidence but should be confined to the agreed facts.

6 Just an illustration is the fact that there was an allegation that

7 he was the camp commander. Now, although that was abandoned by the

8 Prosecution in the agreed statement of facts and his plea was accepted on

9 that basis, when giving evidence, witnesses, of course, spoke of him as

10 the camp commander.

11 Now, the Trial Chamber would not be entitled to sentence him on

12 the basis of that evidence, that he held a position of command, because

13 that would go behind the agreed factual basis upon which his plea had been

14 tendered. But insofar as they might describe an act of cruelty to which

15 he had pleaded, then in considering how he committed the actual offence to

16 which he pleaded, then they could have recourse to that.

17 So I don't know if that answers the question that I've been

18 posed. I'm grateful.

19 JUDGE WALD: Mr. Clegg, following, following up on that, can you

20 give us a little more information on whether or not the position you have

21 just espoused you think is a majority, a plurality, a universal norm? I'm

22 sure you're familiar with the departure from that in the case of the

23 United States where the Supreme Court has actually said that evidence and

24 the fact of an acquittal in one count, or even in one crime, may be taken

25 into consideration in the sentencing for other crimes. A controversial,

Page 180

1 admittedly, a holding, but nonetheless a holding.

2 So I wonder if your answer to Judge Pocar could be elaborated on,

3 whether or not you think your position is one that's more universal, say,

4 than the one I have just set out.

5 MR. CLEGG: Well, I would respectfully submit that the one I have

6 just expounded is more universal. It would be the only approach that

7 would be consistent with the European convention on human rights because

8 there could be, we would submit, no fair trial under Article 5 or 6 of the

9 convention if the Court were to consider, as it were, to go behind, an

10 agreed statement of facts upon which a plea was tendered.

11 That would certainly be my submission under European law. I

12 anticipate this in most common law jurisdictions, the position that I have

13 just expounded is the basis upon which the Court would approach sentence.

14 It would be honest of me to confess that I didn't have the

15 judgement of the American Supreme Court at the forefront of my mind this

16 morning when I was addressing the Chamber. It does seem on the face of it

17 a judgement would have difficulty in surviving in the European Court.

18 I don't know if I can assist any more.

19 JUDGE SHAHABUDDEEN: Mr. Clegg, I think all jurists would respond

20 positively to your main submission that a Court should not suffer itself

21 to appear to be acting capriciously, but also I take it you accept,

22 basically, sentence depends on the Court's view of the facts of each case.

23 I understand you to be saying, yes, the Court has a discretion in

24 sentencing, but that that discretion has to be exercised with reference to

25 discernible principles of law. And your analysis of the various cases

Page 181

1 leads you to extract from them a principle which says, roughly, that

2 sentences should lie within a certain range. Maybe an undefining range,

3 but a discernible one. So that wide as the discretion is, if the

4 discretion is not exercised with reference to that principle of law which

5 you submit can be extracted from the various cases, then the sentence is

6 wrong, decision is wrong.

7 But tell me this: Narrow as that range may be, does it exclude,

8 for example, the competence of the Court to impose a life sentence, and

9 has the Court in fact imposed a life sentence, I think, in the case of the

10 Rwanda Tribunal?

11 MR. CLEGG: It in no way precludes a life sentence being passed in

12 an appropriate case. The life sentence in genocide was, I think, passed

13 for an offence -- the life sentence to which you allude was for an offence

14 of genocide, and the defendant was, I think, either the prime minister or

15 certainly a very senior government official who was orchestrating the

16 extermination of tens or thousands of Tutsis. I would not suggest for one

17 moment that a life sentence in such circumstances was outside any range of

18 sentencing. Indeed, where the Rules of the Tribunal expressly make

19 provision for the sentence -- for a life sentence, it follows that in an

20 appropriate case a life sentence will be appropriate. But it must, of

21 course, be reserved for the most heinous of crimes, and we would submit

22 that in practice, it will probably be reserved for those who commanded and

23 orchestrated genocide.

24 I hope that deals --

25 JUDGE SHAHABUDDEEN: You have dealt with the part. I understand

Page 182

1 you to be saying that for cases of this type, there is a certain range of

2 sentences --

3 MR. CLEGG: Yes.

4 JUDGE SHAHABUDDEEN: -- and that the sentence imposed was outside

5 of the applicable range. Is that your position?

6 MR. CLEGG: That is our position.

7 JUDGE SHAHABUDDEEN: Thank you, thank you.

8 MR. CLEGG: And indeed, 40 years is getting very near a life

9 sentence when one works out what the average life expectancy of a man his

10 age is.

11 JUDGE SHAHABUDDEEN: Any more questions. Thank you, then,

12 Mr. Clegg. Mr. Babic, you have the floor.

13 MR. BABIC: [Interpretation] Your Honours, I am, in a sense,

14 continuing the Defence, as the Prosecutor yesterday said that he was

15 continuing the Prosecution. I have no intention of using that position in

16 the way that Mr. Nice did, by making certain statements which are not

17 grounded in the brief or to encourage certain thinking by the Trial

18 Chamber at the expense of the accused.

19 What I have in mind is the reference to 2.000 dead as being

20 undisputed even though it is clearly in dispute, and also reference by

21 Mr. Nice to certain evidence that has not been proven. I would appeal to

22 Your Honours to bear that in mind when reviewing this case.

23 Mr. Nice also referred to a list given to the guards and the

24 prison administration, saying that all those people were killed, which is

25 also not correct, because in the proceedings, they were proven to be alive

Page 183

1 and certain documents confirmed that.

2 He also referred to testimony by IBNR, the statement of witness

3 Ralston -- the statement by witness Ralston, and let me just say that he

4 stated that throughout Bosnia-Herzegovina, a total of 3.000 civilians had

5 been killed in Bosnia - 3.000 civilians. So this cannot be the kind of

6 evidence that Mr. Nice described it as being.

7 I would just like to highlight a few points which I consider to be

8 important within the time allotted to us, and perhaps then in the rebuttal

9 we will have a chance to say a few more words. I would suggest that a

10 part of my argument be in open session, but I would appeal to Their

11 Honours to allow us to go into private session for another part of my

12 statement, which will come at the end.

13 Mr. Clegg spoke about the plea of guilty which should be taken

14 into account when sentencing. I should just like to add to what has

15 already been said by Mr. Clegg, the following: The accused showed

16 consciousness of his guilt before making a plea in the Trial Chamber, even

17 before coming to the Tribunal. He had told Witnesses DO, DF, DA, and DQ

18 clearly what he had done and shown remorse.

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 A second point I wish to make --

Page 184

1 [Appeals Chamber and legal officer confer]

2 JUDGE SHAHABUDDEEN: Mr. Babic, I am advised that the witness to

3 whom you are now referring testified in closed session. Does that present

4 you with a problem?

5 MR. BABIC: [Interpretation] In view of the fact that I have not,

6 in any way, identified them, I think this should not be a problem at this

7 stage.

8 JUDGE SHAHABUDDEEN: Thank you for that remark. I take it, then,

9 that you intend to proceed on the basis that there will be no

10 identification.

11 MR. BABIC: [Interpretation] I have no intention of identifying

12 them, and I shall be very careful, Your Honours.

13 Maybe I will be repeating something Mr. Clegg said, but the

14 accused did admit, contrary to his Defence counsel's advice, three

15 additional murders with which he was not charged or accused of, and I

16 think this should be taken into account. Also, as Mr. Clegg pointed out,

17 the result of admission was based on an agreed statement of facts, and it

18 was on the basis of that agreed statement of facts that another indictment

19 was issued, that the indictment was amended. That is why no new witnesses

20 were called, no other evidence presented, and all the material expenses

21 saved, all the things that are implied when a plea of guilty is entered.

22 Mr. Clegg spoke about the sincerity of remorse, and I will refer

23 again to the statements of the same witnesses to support that. I should

24 also refer to the statements of the accused himself, because the Trial

25 Chamber said that the accused did not manifest his remorse to the Trial

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Page 186

1 Chamber, but let me refer to a statement of the appellant.

2 During his repeated plea, when he admitted the offences, he stated

3 before the Trial Chamber that he had made his plea -- that he had entered

4 his plea of guilty voluntarily, unconditionally, and that, in that way, he

5 wanted to clear his soul. That was stated in 1998.

6 In response to a question by the President of this Appeals Chamber

7 at the Status Conference on the 4th of April about how he felt in

8 detention, the defendant replied, "Sorrow, remorse, and shame," thereby

9 clearly showing how he was feeling about his crimes.

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 and also the finding of the psychiatrists regarding the appellant.

24 May I also refer to a note I took when talking to Mr. McFadden on

25 the 7th of September last year, the commander of the Detention Unit. The

Page 187

1 discussion referred to the condition of Mr. Jelisic. I asked him what his

2 assessment was of his condition, and Mr. McFadden said the following and I

3 took it down word by word: "Jelisic is a victim in many ways. He has a

4 disturbed personality because he knows that he did bad things. And if

5 there was a way for him to make up for it, I am sure that he would do

6 it." I think this testifies to the remorse that the appellant expressed

7 in his conversation with Mr. McFadden.

8 Other Defence witnesses also said that Goran Jelisic committed his

9 crimes -- I beg your pardon. I skipped a part.

10 All this shows beyond any reasonable doubt that Goran Jelisic

11 feels sincere remorse for the crimes he has committed, because he who has

12 sincere remorse does not ask God or this Honourable Trial Chamber's pardon

13 but for a sentence he deserves. And may I say once again that 40 years is

14 a sentence that he deserves.

15 JUDGE SHAHABUDDEEN: Just for my information, what are you reading

16 from? What text are you reading from?

17 MR. BABIC: [Interpretation] These are my handwritten notes, Your

18 Honour.

19 JUDGE SHAHABUDDEEN: I thought you were reading a statement by

20 someone.

21 MR. BABIC: [Interpretation] I had read what Mr. McFadden told me

22 when I visited the Detention Unit. I would also like to point out that

23 all the witnesses I have mentioned --

24 JUDGE NIETO-NAVIA: [Interpretation] Sorry, Mr. Babic, that is not

25 part of the record, I think.

Page 188

1 MR. BABIC: [Interpretation] No, no, no. It's not in the record.

2 Can I explain? I asked Mr. McFadden whether he would send a report to

3 Their Honours on Jelisic's behaviour in detention. Mr. McFadden answered

4 that nobody had asked him to do that; however, as far as he was concerned,

5 he would convey his own opinion, and that is what he did. That is what he

6 told me.

7 JUDGE SHAHABUDDEEN: Mr. Babic, the point is that the Appeals

8 Chamber can only listen to the case on the basis of the record before it.

9 Now, what my colleague on my left asked you was whether the material which

10 you are now presenting forms any part of the record which we are to

11 consider. It does not. Do I understand you?

12 MR. BABIC: [Interpretation] Mr. McFadden did report to the Trial

13 Chamber on the behaviour of Mr. Jelisic up to that time in detention. I

14 went to see him a year later, whether he would report on his behaviour

15 after that period.

16 JUDGE SHAHABUDDEEN: That may very well have been the case, but

17 what my colleague on my left wanted to know was whether any of this forms

18 part of the written documentation now before the Appeals Chamber. Can you

19 point any pages in the record before us which would reflect the material

20 which you are now putting before us?

21 MR. BABIC: [Interpretation] Your Honours, I did not take part in

22 the hearings because that is what I was told by the registrar. But I was

23 told that the commander of the Detention Unit did submit a report about

24 his behaviour, and I think that that report is part of the brief -- part

25 of the record, I'm sorry.

Page 189

1 THE INTERPRETER: Microphone Your Honour, please.

2 JUDGE SHAHABUDDEEN: We would leave that to the other side to take

3 up at the appropriate stage if they see fit. Thank you.

4 MR. BABIC: [Interpretation] (redacted)

5 (redacted)

6 (redacted)

7 May I also say a few words about the fact that Jelisic acted upon

8 orders, upon orders as a form of coercion to carry out tasks in the

9 execution of the main principals of a police and military organisation

10 based on the chain of command and subordination. This was testified to by

11 Witness DF who said, among other things, and I quote: "We were expected

12 to be completely obedient in relation to orders issued to us. The

13 consequences would be very severely sanctioned. And sometime around the

14 15th of May, 1992, I met Goran in Brcko, and he told me that he had to do

15 certain bad things; that he had to kill upon orders from others, otherwise

16 he himself would be killed. The punishment for refusing to execute orders

17 were severe, and he would be executed for failure to comply with orders."

18 Witness DG, (redacted), in his statement

19 said, I quote: "I heard about Goran Jelisic's crime in Brcko. He

20 admitted that it was true. He was prompted to carry out such things. He

21 was forced to do that, that he was exposed to the risk of being killed.

22 He mentioned certain names, but I do not remember them."

23 And finally, OTP investigator Mr. O'Donnell said in the court

24 that, "Goran Jelisic had claimed that he was told to carry out murders,

25 that he was threatened to be killed if he failed to do so. He said that

Page 190

1 all the murders that he committed were committed by him because he was

2 given orders, and he was not in a position, nor did he have any authority,

3 so he confirmed that there were other people who were in charge of what he

4 was doing, that they were superior to him in the Luka camp." That was

5 Mr. O'Donnell's response to a question by His Honour Judge Riad as to what

6 he meant when he said "others were responsible for him."

7 Other witnesses also spoke about orders, so that the Trial Chamber

8 erred when it came to the conclusion that the appellant did not act upon

9 orders, which certainly affected the sentence. And it should be

10 underlined that a way out of the personal situation that he was in he

11 found by firing a shot in his own foot and fleeing from Yugoslavia, and

12 there is evidence to confirm this. He no longer wanted to execute any

13 police or military orders. That was his own moral choice.

14 Mr. Clegg made a comparative analysis as to the sentences in other

15 cases, and let me just add the following to that. In the meantime, after

16 the sentence had been passed, I obtained an article from the Zagreb

17 newspaper Vecernji List of the 9th of October of 2000 in which the public

18 is being informed that the high court of Croatia in a case Prosecutor

19 versus Sakic relating to the years 1941 to 1945 and the camp called

20 Jasenovac, a notorious camp in Yugoslavia, the defendant in that case was

21 sentenced to 20 years in prison. And this is just a fact that I would

22 like to bring to your attention so that the Appellant Chamber can take

23 this into account when deciding on the appropriate sentence for the

24 appellant.

25 As far as the general court practice in the former Yugoslavia is

Page 191

1 concerned, the Defence was allowed to obtain from Professor Radimir Tamic

2 in Sarajevo an expert report concerning the general practice of the courts

3 in the Socialist Federal Republic of Yugoslavia and the countries that

4 were created on that territory later on. He compiled that report. I have

5 it in Serbian language, and I could forward it to the Appellant Chamber

6 for review. I don't want to comment on this report because it is quite

7 clear on its own.

8 I further believe that when deciding on the sentence, the Roman

9 law should be taken into account. I would remind you of Article 77 of the

10 Rome Statute. Under paragraph (a) it sets forth that a prison sentence

11 should not exceed 30 years, and under paragraph (b) the Rome Statute says

12 that life imprisonment is justified by the extreme circumstances under

13 which the crime was committed. My only comment to this is that

14 Mr. Jelisic's case cannot fall or cannot be considered to fall under

15 paragraph (b) of the Rome Statute.

16 And the last item that I would like to bring up I would like to

17 discuss in closed session, if you please.

18 [Private session]

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

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Page 195

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 [Open session]

9 MR. BABIC: [Interpretation] These are petitions addressed to this

10 Appeals Chamber, and I believe that this Chamber has already received

11 them. I would now like to highlight them as an interest expressed by the

12 public in the work of this Tribunal and as a way to manifest, to

13 demonstrate to the public, to the general public, that the decisions of

14 this Tribunal are fair.

15 [Appeals Chamber confers]

16 JUDGE SHAHABUDDEEN: There is a difficulty, Mr. Babic. You are

17 proposing to present to us material which is not part of the record. We

18 can only look at the record, I think.

19 What you can do, if you like, is to adopt the views which are

20 presented in the material you have - I don't know what those views are -

21 and make them their own, but not present the material to the Court

22 itself. Do you follow that?

23 MR. BABIC: Yes.

24 JUDGE SHAHABUDDEEN: You can adopt the line of argument, if you

25 see fit, presented in the material but not present the material itself to

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Page 197

1 the Court.

2 MR. BABIC: [Interpretation] With all due respect, Your Honours, I

3 will be very brief.

4 All the petitions boil down to the following: that the citizens

5 follow the work of this Tribunal and its decisions with great attention,

6 and that the citizens, those who petitioned this Tribunal, believe that

7 the sentence of Mr. Jelisic was too severe.

8 To this, I would like to add that the petition sent from Bijeljina

9 was signed by 4.198 individuals, out of which 47 were Muslims, 45 were

10 Croats, and another 130 individuals were non-Serbs.

11 I would also like to add that there were certain individuals from

12 the host country, from the Netherlands, who have adopted this same

13 position and have petitioned the Tribunal with respect to this as well.

14 This is all that I wish to say. Thank you.

15 THE INTERPRETER: Microphone, please.

16 JUDGE SHAHABUDDEEN: I was saying that I was much obliged to

17 Mr. Babic.

18 Unless there are any questions from members of the Bench, I think

19 this would be a convenient moment to take 15 minutes' break.

20 The hearing is suspended.

21 --- Recess taken at 11.03 a.m.

22 --- On resuming at 11.22 a.m.

23 JUDGE SHAHABUDDEEN: Mr. Clegg, I take it that is the end of the

24 opening case for the appellant in this appeal?

25 MR. CLEGG: It is.

Page 198

1 JUDGE SHAHABUDDEEN: Yes. Now, while you are still on your feet,

2 may I just raise with you a point on which we need your guidance. The

3 Appeals Chamber will have, sooner than later, to prepare a judgement, and

4 we will want to know what exactly are the grounds on each side.

5 Now, there is a skeleton argument submitted by you. Should we

6 take it that the case for the appellant in this appeal is the case as

7 specified in the skeleton argument; that is to say, supported where

8 appropriate by any arguments in the brief, but not such that any grounds

9 listed in the brief but not reflected in the skeleton arguments are be to

10 entertained.

11 MR. CLEGG: The grounds advanced are those identified in the

12 skeleton. Had more time been available, I would have prepared a short

13 appellant's brief by way of substitution of that previously submitted, but

14 I regret time did not permit me to do that.

15 If the Court would wish me to expand the skeleton and to identify

16 grounds of appeal in a more easily recognised form, I would be very happy

17 to do so. Alternatively, if the Court would be prepared to accept the

18 skeleton with all its limitations, then it certainly embraces the matters

19 that we wanted to advance as expanded in oral argument.

20 JUDGE SHAHABUDDEEN: The question is one, if I may say so, of the

21 imperatives of the situation. We are nearing the end of the case and we

22 are about to approach the beginning of the writing of a judgement, and

23 there's, perhaps, no room for any modifications which may suggest an

24 expansion or variation of the position by either party during the course

25 of this hearing, so we would discourage the idea of presenting a new or

Page 199

1 modified brief. We would stick to the existing brief.

2 The question which I'm asking is whether we should take it that

3 the case presented by the appellant in this appeal is a case as presented

4 in the skeleton argument.

5 MR. CLEGG: Yes.

6 JUDGE SHAHABUDDEEN: Yes, yes. Thank you.

7 Now, that is the case for the appellant in this appeal.

8 Now, Mr. Prosecutor, you have the floor. May I put to you or

9 recall your arrangement with the Bench yesterday that you would be

10 allotted some additional time on the basis that there would be an

11 appropriate discount at this stage. And you'd also bear in mind, please,

12 that the appellant himself has taken up less than his allotted period of

13 two hours.

14 MR. YAPA: Thank you, Your Honour. I do remember the application

15 that I made, and I'm quite sure we will keep to the time that has been

16 allotted. Thank you very much.

17 MR. GUARIGLIA: Good morning, Your Honours. I shall be very brief

18 and honour our commitment to remain within the boundaries of our time

19 limit.

20 Your Honours, first I may have to bother you with something that

21 you already know but that, nonetheless, we submit requires to be restated.

22 It is, what is the scope of appellate review of sentences imposed by trial

23 Chambers since it is the position of the Prosecution that the Defence may

24 have misstated the exact scope of that review once the sentence has been

25 imposed by a Trial Chamber.

Page 200

1 At the outset, the purpose of appellate proceedings, and this has

2 been recently restated and clarified by the Celebici decision of this

3 Appeals Chamber, the purpose of appellate proceedings is not for the

4 Appeals Chamber to reconsider the evidence and factors submitted before

5 the Trial Chamber.

6 Second, the appellate process itself is not a forum to provide the

7 parties with a supplementary chance to remedy their own failings or

8 oversights during sentencing procedures within trial procedures.

9 Third, your scope of examination is confined to determine whether

10 a Trial Chamber, in imposing a sentence in a given case, committed an

11 error of law by not taking into consideration factors established in the

12 applicable provisions governing ICTY proceedings, that is, Article 24 of

13 the Statute, Rule 101 of the Rules of Procedure and Evidence

14 ; or whether the Trial Chamber abused its

15 discretion under those provisions. In both cases, that error, under the

16 clear jurisprudence of this body stemming from the Tadic sentencing appeals,

17 reaffirmed in the Furundzija Appeals Judgement and now again in the

18 Celebici Appeals Judgement, must be a discernible one.

19 Absent a showing by the appellant of a discernible error committed

20 by the Trial Chamber in exercising its discretion in the imposition of an

21 appropriate sentence, that sentence of

22 the Trial Chamber remains undisturbed, and you shouldn't be asked to go

23 beyond the limits of that very precise and very narrow scope of appellate

24 review.

25 The cornerstone of sentencing proceedings and imposition of

Page 201

1 sentence in this institution, as recognised by this Appellate Court, is

2 that Trial Chambers exercise a considerable amount of discretion, although

3 not unlimited, in determining the appropriate sentence; and that the,

4 perhaps, main pillar for that intellectual process of determining what the

5 appropriate sentence is, is the gravity of the crime attributed to the

6 accused and of which the accused has been convicted.

7 That takes me to one of the first submissions by my learned

8 friend, this alleged need to establish a recognised tariff of sentences in

9 the International Tribunal. I would respectfully submit that such a need

10 simply does not exist.

11 We add that in the recent Celebici Judgement, the Appeals Chamber

12 declined to follow a similar, to some extent, invitation of the

13 Prosecution to develop a list of basic principles for sentencing. The

14 reasoning of the Appeals Chamber was that such a list would be of no value

15 and that Trial Chambers must always honour their overriding obligation to

16 individualise a penalty to fit the individual circumstances of the case

17 and the gravity of the crime. I am quoting paragraph 717 of the Celebici

18 Judgement.

19 The Appeals Chamber noted in that decision, which appears to be in

20 line with a prior finding of this Appeals Chamber in the Furundzija case,

21 that it was premature to speak of a regime in relation to sentences in the

22 International Tribunal. The Appeals Chamber in the Celebici decision,

23 I repeat, considered that it may be that as the number of sentences

24 imposed by Trial Chambers of this institution increase, there will be an

25 emerging body of law which Trial Chambers will be obliged to consider for

Page 202

1 sentencing purposes but not bound to consider for the very same purposes.

2 The rationale behind it: Trial Chambers must retain the sufficient margin

3 of discretion, as granted by the Statute and the Rules, to impose the

4 sentence that best reflects the gravity of the crime committed by an

5 accused and his culpability or her culpability.

6 That also means that a comparison between different cases and

7 different sentences imposed in different cases is of limited or no value

8 at all, and this has also been established by this Appeals Chamber in the

9 recent Celebici decision; it is a clear finding, saying that often the

10 differences between the cases are more significant than the similarities,

11 and the mitigating and aggravating factors dictate different results.

12 Comparing different cases of the International Tribunal is, then,

13 an exercise of very, very limited value, and in the case at bar,

14 the examples that have been provided by my learned friend are, we

15 respectfully submit, misleading in a number of ways.

16 A simple example, because I do not intend to spend more time on

17 this, is the reliance on the Erdemovic case as a similar

18 case, which simply ignores the enormous differences between the nature of

19 both cases, the conduct of both accused, and the findings of both Trial

20 Chambers.

21 In the case of Erdemovic, there's a clear subjective difference

22 with the case of the appellant in this proceedings. Erdemovic was

23 characterised, was found to be, a reluctant executioner, someone who had

24 been, to a large extent, coerced to engage in criminal activity; a

25 perpetrator that was tormented by remorse, and that remorse being genuine;

Page 203

1 a perpetrator who had confessed his crimes before there was any

2 prosecution against him.

3 Now, the findings of Erdemovic and the sentence imposed on

4 Erdemovic in the light of these very particular circumstances, we

5 respectfully submit, cannot possibly be applied to the case of an accused

6 whose behaviour has been found to be repugnant, bestial, and sadistic, the

7 judgement of the Jelisic Trial Chamber, at paragraph 130; nor to someone

8 whose cold-blooded commission of murders and mistreatment of people attest

9 to a profound contempt for mankind and the right to life, same paragraph

10 of the judgement; nor can they apply to a person who enthusiastically

11 committed his crimes and took advantage of the opportunity afforded to

12 him, by the feeling of power, to impose his own will on the defenceless

13 victims and to decide who would live and who would die.

14 We would respectfully submit it is untenable to sustain that

15 someone who willingly and enthusiastically engaged in criminal activity of

16 this nature should be compared with a reluctant executioner, tormented by

17 remorse, as would be the case of Erdemovic. This shows again that cases

18 before the International Tribunal should be treated individually, and that

19 the discretion granted by the Statute and the rulings from Trial Chambers

20 serves a purpose, and that purpose is to allow Chambers to individualise

21 the correct sentence for each case.

22 Same must be said about this allegation that under the law of this

23 institution, the rank or the relative rank of an accused gives rise to

24 some entitlement to obtain a lesser sentence; or put the other way around,

25 that the higher you go in the chain of command, the more serious

Page 204

1 sentencing should be, the further down you go in the chain of command, the

2 more lenient sentences should be. And we submit that the appellant's

3 reliance on the Tadic sentencing appeals is misplaced.

4 The decision of this Appellant Court in the Tadic sentencing

5 appeals cannot and should not be read as one establishing an automatic

6 right to mitigation in the case of low-level perpetrators. And here

7 again, this particular issue has been clarified, conclusively clarified,

8 we submit, in the recent Celebici Judgement of the Appeals Chamber whereby

9 it can be read that: "The Tadic Sentencing Appeal Judgement ... did not

10 purport to require that, in every case before it, an accused's level in

11 the overall hierarchy in the conflict in the former Yugoslavia should be

12 compared with those at the highest level, such that if the accused's place

13 was such by comparison low, a low sentence should automatically be

14 imposed. Establishing a gradation does not entail a low sentence for all

15 those in a low level of the overall command structure. A sentence must

16 always reflect the inherent level of gravity of a crime....In certain

17 circumstances, the gravity of the crime may be so great that even

18 following consideration of any mitigating factors, and despite the fact

19 that the accused was not senior in the so-called overall command

20 structure, a very severe penalty is nonetheless justified."

21 I'm sorry to have to bother Your Honours with reading these

22 findings, but this is a very recent decision and we submit

23 it goes right to the point.

24 JUDGE SHAHABUDDEEN: Could you kindly state the paragraph --

25 MR. GUARIGLIA: Yes, I was going to do that now.

Page 205

1 JUDGE SHAHABUDDEEN: -- so that when we read the transcript, we

2 will be able to identify exactly what is the passage you are referring to

3 and find it easily.

4 MR. GUARIGLIA: Yes, Your Honour. It's paragraph 847, and I was

5 going to make that clear now.

6 So, Your Honour, the position of the Prosecution I think is clear.

7 The Trial Chamber in its judgement took into account all mitigating

8 factors as established by the Statute and the pertinent Rules. What the

9 appellant seems to be complaining of is that the Trial Chamber allegedly

10 did not attach the sufficient weight to some of those factors.

11 We would respectfully submit, Your Honour, that the weight to be

12 attached to a particular mitigating factor is a matter that arises within

13 the discretion of the Trial Chamber and should, absent a showing of an

14 abuse of discretion, remain undisturbed.

15 There is no doubt, and I don't think it has been submitted

16 otherwise, that the Trial Chamber did consider all factors. Let's take

17 the youth of the accused. The youth of the accused was an issue expressly

18 dealt with by the Trial Chamber in its judgement at paragraph 124. It was

19 extensively litigated during sentencing procedures. In closing argument,

20 counsel for the appellant referred to the appellant as a "young man" at

21 least seven times.

22 This is not a forum, we repeat, where an appellant can come and

23 attempt to relitigate issues that were discussed and were addressed before

24 a Trial Chamber after the Trial Chamber has made its decision.

25 Finally, Your Honours, two brief points: It wasn't very clear to

Page 206

1 the Prosecution what type of error the appellant was alleging as far as

2 the consideration of the sentencing practice of courts of the former

3 Yugoslavia is concerned. We have responded in writing extensively to the

4 arguments raised at that point in time by the appellant in his appeal

5 brief. We will only here repeat what is at this stage "jurisprudence

6 constante" of this Appellate Court: Trial Chambers are not bound by the

7 practice of the courts in the former Yugoslavia.

8 This principle as stated by the Celebici decision of this Appeals

9 Chamber at paragraphs 813 and 816 applies to crimes committed both before

10 and after the Tribunal's establishment; and this issue was also, we

11 repeat, fully litigated during sentencing proceedings before the Trial

12 Chamber with counsel for the appellant providing the Trial Chamber with

13 decisions from some courts in the former Yugoslavia which were considered

14 by the Trial Chamber, and they were given the weight that the Trial

15 Chamber considered appropriate.

16 Your Honours, the overarching finding of the Trial Chamber in the

17 case of the appellant was that considering all mitigating circumstances

18 established in the Statute and the Rules and that had been advanced by the

19 appellant during sentencing proceedings, and balancing those mitigating

20 circumstances against those aggravating circumstances that had been

21 established by the Prosecution during the same sentencing proceedings, the

22 final conclusion was the aggravating circumstances far outweighed the

23 mitigating circumstances, and that is the main premise on the basis of

24 which that particular sentence was imposed on the appellant.

25 And we submit there is no showing of a discernible error by the


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Page 208

1 appellant; there is no showing of an abuse of discretion by the Trial

2 Chamber; and we respectfully submit that absent such a showing, that

3 discretion should remain undisturbed and that you should refrain from

4 intervening when a showing of this nature has not been made.

5 That concludes my submissions, Your Honours, and I will leave now,

6 with your leave, the floor to Mr. Geoffrey Nice who will address some of

7 the particular issues pertaining to this ground of appeal.


9 Mr. Nice.

10 MR. NICE: I, too, hope to be brief. With absolutely no

11 suggestion of complaint, we, of course, face today a slightly differently

12 presented argument from that which was forecast in the larger pleading at

13 an earlier stage submitted by the appellant. Our position is that we

14 stand by all our arguments in our full response to that larger pleading

15 but seek to amplify that response by our observations today in replying to

16 what our two friends opposite have argued.

17 Very briefly before I turn to the somewhat disconnected handful of

18 points I have to deal with, Mr. Babic raised an issue that really relates

19 to yesterday's hearing about things that I said, but it is important for

20 me to point you to where this matter can properly be resolved. In our

21 brief on the genocide issue, and he was harking back to that, at paragraph

22 4.62 I set out -- or rather, we set out in full the position of the

23 evidence of 2.000 or 3.000 dead and so on, and I stand exactly by what I

24 said yesterday.

25 As to what was being said by Mr. Babic in respect to what I said

Page 209

1 about lists, again, there seems to have been, perhaps, by Mr. Babic some

2 misunderstanding of how these lists operated. The position so far, and

3 this is on recollection - I haven't been able to check the point because I

4 didn't know it was going to be raised - but so far as my recollection is

5 concerned, there was one -- let me go back.

6 Mr. Babic says they were not all dead. The larger list of 100

7 names was derived from a list provided by the Serbian authorities of 200

8 plus people or bodies that they recorded as having been deposited in mass

9 graves over a limited number of days. Of that, and I think it was 200

10 plus, 100 could be identified by name. These were the names that were put

11 to every witness in extensive form by the Defence, and I think one name

12 did show up as a person who was still alive. I remember he was a butcher

13 in another town. And whether there was confusion over the name or whether

14 it was somebody having the same name, but so there was one name and, in my

15 recollection, one name only of all those lists prepared in the different

16 ways who may have been shown still to be alive. I would have checked this

17 more fully if I'd had advance notice.

18 I now turn to the matters that have been argued this morning.

19 First, on this aspect of the case there can be no doubt that there was

20 full argument by both sides to the Trial Chamber on the issue of sentence

21 with the calling of evidence, extensive evidence, by the Defence.

22 Obviously, this Chamber is in a position, if it wishes to, to read the

23 arguments advanced from both sides and, cogently as I recall them, by

24 Mr. Greaves then appearing for the appellant Jelisic.

25 I see that there is no complaint on the basis now of material

Page 210

1 provided to the Trial Chamber, but can I -- there's one remaining

2 complaint, but there's no complaint about the material provided. I'll

3 come back to the matter of complaint in a minute.

4 The materials provided to the Chamber by the Prosecution included

5 an extensive skeleton that they could follow, a text they could follow of

6 the submissions we were making. That text did not become part of the

7 record. It was for reference purposes and then, no doubt, to be in due

8 course discarded.

9 To that text there was an analysis of -- attached to that text

10 there was analysis of some of the Defence witnesses, and there was another

11 extensive tabular analysis of the evidence that related to the pleas of

12 guilty side by side to what the appellant had said in the interviews with

13 investigators in relation to those matters. And the material was made

14 available to the Trial Chamber in this way because this had the potential

15 for being confusing material, and it needed to be available in a

16 side-by-side basis so that the Chamber could look at each individual

17 killing and say, "This was the evidence in relation to that killing, and

18 this is what the appellant said about it."

19 Now, one complaint or perhaps two were made. First, there's the

20 suggestion that there was an agreed basis of facts between the parties in

21 respect of the pleas of guilty. It is true there was a document so

22 titled, a very slim document which simply reflected the pleas that were

23 going to be tendered and said in a sentence or so the defendant took two

24 brothers or one brother outside and shot him. Simply not enough factual

25 material for any Trial Chamber to pass sentence because it was a bare

Page 211

1 assertion of an activity.

2 When that document was served in 1998, and it was amended but in

3 the most insignificant way for these purposes I think in October of 1998,

4 it was recognised by those then conducting the case, Mr. Bowers and

5 Mr. Tochilovsky, that the Chamber would require further assistance if and

6 when or when it came to deal with the pleas. And so a further appendix

7 was served at that time as a filing, and that contained extracts from

8 material witnesses whose evidence would have touched on individual crimes

9 to which the appellant had made admissions, and it also contained some

10 fuller witness statements covering the same topic as a confidential annex.

11 So that the Chamber had for its consideration of sentence, it had

12 this raw material that was always known to be the basis upon which the

13 Prosecution would present material as under Rule 100 to assist the

14 Chamber. It had full argument, and it had, of course, the evidence in the

15 genocide trial. It then had the tools of analysis to which I have

16 referred.

17 I can tell Your Honours that, and I hope that the Court will

18 accept it because the tools provided were not part of the record, but the

19 very large majority of material relating to the pleas of guilty was

20 evidence that had been given in the genocide trial, and the other way

21 around, in the genocide trial, evidence reflecting the matters to which he

22 had pleaded guilty was very much the majority of the evidence. There was

23 other evidence, but comparatively little, so that there was no risk of, or

24 no significant risk of infection of the Chamber by that additional

25 material it had heard in the genocide trial.

Page 212

1 First of all, one can trust that the Chamber knew what its duty

2 was. But in any event, all the materials focused on these matters to

3 which the appellant had pleaded guilty, and the tools with which they were

4 provided, I trust, would have assisted them in that exercise.

5 I have to say that the exercise I then had to perform before the

6 Trial Chamber, that is, not an exercise in mitigation of sentence with

7 which common law lawyers are much more familiar but an exercise in

8 identifying the gravity of the offence, is not one which necessarily comes

9 very naturally to common law advocates. It's still a strange experience.

10 It's our argument that neither those of us presenting the case nor the

11 investigators who had to give some assistance to the Chamber on issues of

12 gravity had any desire or any purpose to serve in making the picture worse

13 than it was. The sole purpose at all times was to try and get the correct

14 picture of the gravity of the crimes and of the nature of the appellant.

15 If I could turn to the twin issues of the interviews, which I can

16 deal with in open court and the other aspect of the matter which I may

17 have to deal with briefly in a closed session, on those twin issues, the

18 Chamber may be assisted by the material evidence of the investigator

19 O'Donnell, given on day 19 and, in my pagination if it's correct, starting

20 at 2066, where at two passages - one, 2083 and one, 2169 - he dealt with

21 these issues for the assistance of the Trial Chamber in the course of

22 dealing with the interviews. I shan't go over his answers extensively,

23 and I would invite the Chamber if it finds this a helpful issue to read

24 them, because they are not very long.

25 He was given, the Chamber may conclude, a balanced view,

Page 213

1 explaining, first, so far as the interviews are concerned, that yes, he

2 was -- that the appellant was giving, it appeared, a sanitised version.

3 They were taking time with the appellant because they were concerned, of

4 course, to contrast what the appellant was saying with the independent

5 material they had, witness statements and the like, that was at odds with

6 what he was saying. Indeed, one of the problems of the interviews was,

7 lengthy though they were, that the appellant was setting the agenda

8 himself and declining altogether to be interviewed on certain topics. For

9 example, he declined altogether to be interviewed about genocide as a

10 particular topic, but there were other controls he made. Indeed, it

11 appears that it was when they were going, in the last interview, to deal

12 with further inconsistencies that it was the appellant who stopped the

13 interview process.

14 Nevertheless, within that process, the officers identified

15 inconsistencies both within the interviews themselves, going to show doubt

16 on the man's true candor, and real inconsistencies between what he was

17 saying in mitigating his role and what was available from independent

18 sources.

19 So there is every reason for the Chamber to have taken the very

20 cautious view that it may have taken in respect of credit to be given for

21 this aspect of cooperation and plea.

22 Can I turn, briefly, perhaps in closed session for safety, to the

23 other aspect which has been raised particularly by Mr. Babic.

24 [Private session]

25 (redacted)

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6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 [Open session]


12 MR. NICE: I move on to a couple of points about plea of guilty.

13 The Chamber was entirely justified, in our respectful submission,

14 in placing very little reliance on that in light of what it observed,

15 first, about the photograph sequence. I referred to this yesterday. It's

16 the photograph sequence of the appellant executing someone, several

17 photographs of him and of how he does it. He couldn't deny that.

18 As the Chamber will readily understand, by the presentation to him

19 in interview of witness statements that identify him with absolute

20 clarity, it was beyond doubt he may have judged that he had no defence to

21 nearly all the matters that are the subject matter of his pleas of

22 guilty. There is no automatic entitlement, and it can be outweighed by

23 aggravating circumstances. Of course, Kambanda pleaded guilty and, as we

24 know, received the maximum sentence of life imprisonment.

25 A few other points. As to whether he was, was regarded as, or

Page 217

1 should ever have been advanced as a commander, it was never suggested that

2 he was the actual commander of the Luka camp, the third place where he was

3 seen - first, the police station; second, briefly, the Laser bus station;

4 and then the killings at Luka - never suggested he was the commander

5 there. The contrary.

6 The Prosecution's case was, in the trial, that of course he was

7 acting pursuant to a plan and, as a matter of inevitable inference, as a

8 subordinate to others who were the architects, as it is said, of the plan

9 and who were commanding him. Indeed, we relied upon the facts that he

10 referred to himself in interview of his recruitment and of his

11 supervision.

12 So there was never any suggestion that he was the actual commander

13 of the Luka camp. Yes, one or two witnesses assumed he was, and there may

14 have even been words said to suggest that he was. But the clear body of

15 evidence both from him and from the victim witnesses was to the effect

16 that he was working together with others - the inspectors who carried out

17 brief interrogations in particular will come to mind - and that showed

18 that they were all working within a regime of which it was not suggested

19 he was the chief.

20 Of course, he had extensive de facto power within that regime, and

21 it may be he had command, certainly when he had the gun in his hand, over

22 some of the others who assisted him. But that is not to say that we

23 suggested, and we did not, that he was the commander of the camp. That

24 matters not at all and, in our respectful submission, was, must have been,

25 and plainly was fully understood by the Trial Chamber.

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Page 219

1 A couple of things about personality and remorse. The suggestion,

2 incidentally, that he didn't and couldn't have given evidence is probably

3 not accurate. Given the extensive nature of sentencing proceedings, there

4 is nothing to stop an accused giving evidence at that stage on his own

5 behalf in explanation of what he had admitted. Nothing to stop that.

6 The evidence in respect of remorse or the material properly

7 available in respect of remorse was probably not limited strictly to

8 evidence from the witness chair, for in a long trial, a Chamber has an

9 opportunity to consider a man even if he remains silent. I don't exclude

10 the possibility that the Trial Chamber will have made some assessments of

11 him, both his presence and the occasions when he chose to absent himself.

12 As to the spoken or written evidence, apart from what individual

13 witnesses said, and to those I will turn for the sentence or so per

14 witness in a second, as to the other spoken or written evidence, it was

15 nearly all one way. The psychiatric evidence, apart from the very brief

16 reference slightly misquoted in the footnote of the judgement as to a page

17 reference but matters not about that, of the Dr. Van den Bussche, the

18 evidence was all one way: No remorse.

19 Van den Bussche, and it suggests that it's page 22, but the

20 relevant document only runs to page 17, and it's on that page that the

21 doctor, who had a short second examination of the appellant, said, "He

22 would appear more than in the past to demonstrate remorse."

23 The same report of the doctor, which is part of the record for you

24 to consider, made it plain in various ways that his concerns were almost

25 exclusively for himself. He gave various examples of what the appellant

Page 220

1 said to him about crying and matters of that sort while in custody, but it

2 all emerged that these were focused on himself, thus really giving support

3 not to the very low level of conclusion "would appear more than in the

4 past to have remorse" but would have supported the other findings about

5 the personality defects, limited though they may have been, of this

6 appellant at the time he examined him.

7 Accordingly, there was no reason for the Chamber to take other

8 than the view they clearly did, in our respectful submission, about

9 remorse and to discount it in the way that they properly did.

10 Again, without wishing to trouble you with researching passages of

11 transcript, there was a day, I think it was the last day of evidence, when

12 both doctors were examined and cross-examined, and if there's any concern

13 about the issue that's raised on remorse related to the psychiatric

14 evidence, I would invite the Chamber to at least consider reviewing that

15 material, which of course I'm not going to review any more than to the

16 degree I have already.

17 Remorse, I have to say, was also countered by a piece of evidence

18 to which I must turn, if I may, in closed session.

19 [Private session]

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

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4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 [Open session]

25 JUDGE SHAHABUDDEEN: You are in open session now.

Page 225

1 MR. NICE: Thank you, Your Honour.

2 Without dwelling on it, one of the other features of the evidence

3 overall that may have lain behind the Trial Chamber's rejection of what

4 was being urged as mitigation, was that despite these extensive interviews

5 and despite every opportunity to call witnesses made available to the

6 Defence, the picture of what this man did, both before arriving at Brcko,

7 the year or so before when we know he was convicted of some comparatively

8 small crime, and what he did afterwards before arrest was wholly

9 unarticulated and unclear.

10 JUDGE SHAHABUDDEEN: The screens, the screens suggest that we are

11 still in closed session.

12 Yes, Mr. Nice.

13 MR. NICE: The picture both before and after was wholly unclear.

14 The picture of his recruitment before when in a very short space of time

15 he either rose so as to become somebody who committed these crimes or

16 threw himself willingly as being one of these people who could commit

17 crimes, the picture after when he could have shown genuine remorse and he

18 could have surrendered himself, were both entirely unclear, consistent --


20 MR. NICE: -- with the position taken by the Prosecution and, it

21 appears, adopted by the Chamber that he was not candid. He was not

22 honest, particularly in relation to the things he dealt with in his

23 interviews, where, for example, he said he didn't look at people when he

24 was killing them and he said, "If anybody had asked me not to kill them, I

25 wouldn't have killed them;" countered by stretches of evidence of people

Page 226

1 pleading for their lives at the moment that he executed them himself. And

2 you can see all this in the schedule I provided yesterday.

3 There was material to find that he was not candid and was

4 dishonest. And the extent of material available to the Chamber, carefully

5 argued on the day of closing submissions, and as we see from their

6 judgement in summary form, plainly reviewed by them on this topic, it's

7 our submission that they performed their sentencing assessment correctly

8 with all the material there to help them, and the decisions they reached

9 factually are beyond reproach. And that in light of the jurisprudence

10 that my learned friend Mr. Guariglia has reminded you of and has -- and as

11 has been advanced in our written brief, the sentence imposed was not a day

12 too long and should be sustained.

13 That's all I have to say.

14 JUDGE SHAHABUDDEEN: One question.

15 JUDGE WALD: Actually, I have two questions for Mr. Guariglia and

16 one for Mr. Nice, but since Mr. Nice is on his feet, why don't I take that

17 one the first.

18 If I understand one of the appellant's arguments, and I would like

19 your reaction to it, it is that though he pleaded on the basis of an

20 agreed statement of facts to a second indictment setting out the crimes

21 against humanity, some of the evidence which came in during the genocide

22 aspect of the case which dealt with some of the particularly gruesome

23 aspects of some of the crimes which was not repeated in the statement of

24 facts to which he pled guilty on those crimes, were in fact taken into

25 consideration in the sentencing. I just want your comments on that

Page 227

1 argument.

2 MR. NICE: Yes. Can I go back to what I said earlier, and it's my

3 error for not perhaps making it adequately plain. The agreed statement of

4 facts dated the 9th of September -- signed and dated the 9th of September

5 of 1998 was terse in the extreme. I take an example. Counts 6 and 7,

6 "Goran Jelisic will plead guilty to Counts 6 and 7 and admit that, on or

7 about the 6th or 7th of May, 1992, he escorted an unknown male detainee

8 down a street near the Brcko police station and then shot him in the head

9 with a Scorpion pistol."

10 Now, that is the way individual offences were summarised. That

11 apart, there was no narrative giving an agreed version of background or

12 even foreground to these offences. And as I suggested at an earlier stage

13 this morning, the material here was far too limited, and, for assessment,

14 for purposes of guilt, it was the bare bones of what he was pleading to.

15 It wasn't an overall agreed version of facts on the basis of which the

16 Prosecution could present the case to the Trial Chamber, bearing in mind

17 its various duties.

18 That led to the presentation of the annex to which I have earlier

19 referred which was presented to the Chamber by a filing on the 29th of

20 September, and I'll just read it because I don't think it's going to be

21 before you. It says this: "In accordance with Judge Riad's request

22 during the Status Conference of the 2nd of September of the parties to

23 reach agreement on admitted and disputed facts, Jelisic has expressed an

24 intention to plead guilty."

25 Paragraph 2: "The Prosecution and Defence jointly submitted the

Page 228

1 agreed factual basis for the guilty pleas."

2 Paragraph 3, and this is the only other paragraph: "In order to

3 assist the Trial Chamber in evaluating the factual basis for the guilty

4 pleas, the Prosecution submits excerpts from Prosecution witness

5 statements and interviews held with Jelisic on specific counts of the

6 amended indictment to which he intends to plead guilty as Annex 1, and a

7 supplementary report, complete witness statements, and relevant pages of

8 interviews held with Goran Jelisic are attached in confidential Annex 2";

9 so that immediately after the agreed but exiguous statement of facts, we

10 have this larger document. Now, it was never signed by the Defence,

11 that's true, but it was always claimed that it was the intention of the

12 Prosecution to present such material to the Chamber as may have been

13 required to flesh out those one or two lines that were in the agreed

14 statement of facts.

15 And can I then take you to page 27 of our respondent's brief --

16 I'm sorry, that's right. I'm looking at it in Mr. Guariglia's version so

17 I'm not familiar with where it appears in the binder. What happened on

18 the 19th of October, without complaint - we can find it at paragraph 4.6,

19 page 27 - is that I told the Chamber that there is this large document, a

20 bundle of witness statements served at the time of the guilty plea and to

21 support the plea, it is either witness statements or extracts from witness

22 statements both, and we will rely on without calling those witnesses as

23 part of the material for the sentencing purpose. That was not complained

24 of.

25 In short, the parties all knew and agreed that the plea would be

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Page 230

1 dealt with without calling live evidence circumscribed to the particular

2 counts in the indictment and that we would rely on this written material.

3 So as to infection by material wider than the agreed statement of

4 facts, in response to Your Honour's particular question, first by

5 agreement and understanding, there was this body of written material to

6 which the Court could refer. That doesn't, of course, deal with the other

7 half of Your Honour's question: What about the trial? As I say, in

8 relation to that, one can trust the Chamber to have excised it from

9 consideration because they realised they had to.

10 JUDGE WALD: Thank you. I do have one question for Mr. Guariglia

11 too.

12 You emphasised the Trial Chamber's discretion in sentencing

13 because so many of these cases have very individualised characteristics,

14 and you yourself contrasted Erdemovic from Mr. Jelisic.

15 I'm wondering, however, given the great emphasis that Mr. Clegg

16 placed on Tadic, which, it seems to me, is somewhat more similar than

17 Mr. Erdemovic, and conceding your argument that that alone -- that a Trial

18 Chamber doesn't have to look at what happened in every other case,

19 nonetheless, I would find it helpful if you would give me your argument or

20 impressions of why the sentence, which was changed by the Appellate

21 Chamber in Tadic, would merit only half the time given here.

22 Along with that would be the more abstract question: Is your

23 argument that two Trial Chambers in this Tribunal, given, for hypothesis'

24 sake, the same circumstances of crimes, the same youth, all the other

25 factors, that nonetheless they would be justified in giving quite

Page 231

1 different sentences just based upon the way the evidence struck them?

2 MR. GUARIGLIA: Your Honour, as far as the first question is

3 concerned, it is dangerous to engage in an exercise of comparison of cases

4 without having at your disposal all of the elements of all the cases, and

5 to be in a position to determine, off the cuff, whether the culpability of

6 the perpetrators was the same. However --

7 JUDGE WALD: You [Realtime transcript read in error "I"] did it

8 with Erdemovic.

9 MR. GUARIGLIA: I did it with Erdemovic, as you said, and with

10 Tadic, I will do it off the cuff, to some extent.

11 We would submit that if, in Erdemovic, there seemed to be a

12 subjective difference, a difference in the subjective field, it is clear --

13 JUDGE SHAHABUDDEEN: May I ask that the transcript should be

14 corrected. We have, as against Judge Wald, this statement: "I did it

15 with Erdemovic." I believe she said, "You did it with Erdemovic."

16 MR. GUARIGLIA: Yes, indeed, Your Honour.

17 Going back to what I was about to say, between Erdemovic and

18 Jelisic, the argument can be made, and this is the Prosecution's position,

19 that there is a subjective difference. The perpetrators are different.

20 Between Tadic and Jelisic, we would submit there is a very

21 significant objective difference in the scope of victimisation in both

22 cases. In the case of Tadic, you have two killings and then Tadic's

23 participation in a number of events of beatings. In the case of the

24 appellant in these proceedings, you have the appellant actively engaged in

25 a significant number of killings, committed in the most brutal manner and

Page 232

1 in the context a confined system of ill-treatment at the Luka camp, and

2 previously the police station. We think that the level of victimisation

3 is different between the two cases and that the Trial Chamber had the

4 authority to attach to that particular degree and intensity of

5 victimisation a different sentence than the one imposed in the Tadic

6 case.

7 I don't know if that answers your question.

8 JUDGE WALD: Thank you.

9 MR. GUARIGLIA: As far as your second question is concerned, there

10 is no doubt -- let me put it this way: No doubt it would be desirable

11 that sentences from Trial Chambers in the International Tribunal in very

12 similar cases don't present fundamental disparities. However, some degree

13 of disparity is a natural consequence of the exercise of discretion by the

14 Trial Chambers and of the fact that the parameters offered by the Statute

15 and the Rules are broad parameters.

16 But at the same time that this appellate Court has said, for the

17 purposes of establishing errors of fact, that two reasonable Judges may

18 look at the same evidence with different eyes, and provided they move both

19 within the same scope of reasonable judicial activity, deference must be

20 given to the trier of fact.

21 We submit a similar conclusion may be reached in the case of

22 sentencing. Providing that Trial Chamber A has moved within the

23 parameters of the Statute and the Rules and has reasonably exercised its

24 discretion, yes, it may be that the sentence in a very similar case by

25 Trial Chamber B will be different; but provided both Trial Chambers act

Page 233

1 reasonably, within the boundaries of their authority as granted by the

2 Statute and the Rules, those two sentences should remain undisturbed.

3 JUDGE WALD: Thank you.

4 MR. GUARIGLIA: Thank you.

5 JUDGE SHAHABUDDEEN: Mr. Guariglia, just to clear my mind on it

6 and because Erdemovic has been so frequently referred to, may I ask

7 whether your impression is the same as my recollection, my rather rusty

8 recollection, of the Erdemovic case.

9 Am I right in feeling that there are two things about that case:

10 One, Erdemovic gave himself up to the Tribunal at the time when the

11 Tribunal was not even aware of his existence or of the possibility of any

12 allegations being made against him; two, the Prosecution in fact, I

13 believe, conceded that he had acted under duress. The matter went to the

14 Court of Appeal on this basis, that for Erdemovic, it was argued that

15 duress was a complete defence. The Court of Appeal said, No, no, it is

16 not a complete defence. What can happen, however, is that duress may be

17 taken in mitigation. So the case assumed that posture when it went back,

18 and Erdemovic was given a five-year sentence.

19 Are those factors present in this case?

20 MR. GUARIGLIA: They are not, Your Honour, and that is the

21 position, that subjectively the cases are completely different.

22 JUDGE SHAHABUDDEEN: Mr. Clegg, you will finish by 1.00?

23 MR. CLEGG: I would hope to finish very soon after 1.00. But

24 could I ask for the indulgence of the Chamber for five minutes.

25 Mr. Jelisic has indicated he just wants to have a brief word with me.

Page 234

1 It's difficult as I don't speak the same language, and if I could have

2 five minutes, I would still hope to finish comfortably before 1.15.

3 JUDGE SHAHABUDDEEN: We would like to accommodate Mr. Clegg. May

4 I have a moment to consult with colleagues.

5 [Appeals Chamber confers]

6 JUDGE SHAHABUDDEEN: My colleague, Judge Nieto, thinks that, in

7 principle, we ought to have the recess. I was under the assumption that

8 you will go on for some time after 1.00. About how long, even with the

9 five minutes' recess, how long would you be after 1.00?

10 MR. CLEGG: I would hope to conclude in under 15 minutes, and then

11 Mr. Babic will deal with the points that touch on the particular aspect of

12 the appeal which he has covered.

13 JUDGE SHAHABUDDEEN: We better recess then --

14 MR. CLEGG: Certainly.

15 JUDGE SHAHABUDDEEN: -- and we better recess now; is that it?

16 MR. CLEGG: Yes.

17 JUDGE SHAHABUDDEEN: So you can have your five minutes during the

18 recess period.

19 MR. CLEGG: That will certainly avoid any pressure of time that I

20 have with Mr. Jelisic.

21 JUDGE SHAHABUDDEEN: Yes. The court stands suspended.

22 --- Luncheon recess taken at 12.45 p.m.




Page 235

1 --- On resuming at 2.34 p.m.

2 JUDGE SHAHABUDDEEN: The proceedings are resumed. I would like to

3 extend my deepest apologies for the delay.

4 Mr. Clegg.

5 MR. CLEGG: It's our submission that the Prosecution approach is,

6 frankly, unhelpful to this Tribunal. They argue that, and I quote, "The

7 alleged need to recognise a tariff for a sentence does not exist." As a

8 bold statement of fact, that is, we submit, completely unsustainable. We

9 venture to suggest that the reason why the Prosecution advances their

10 argument on that basis is because they recognise that no application of

11 any tariff can survive examination with the sentence passed in this case.

12 In order to illustrate what we submit is post-sentence diplomacy,

13 one is only to look at the argument that they advanced in the Celebici

14 Judgement that was to the exact reverse of that which was advanced today.

15 At paragraph 715 in the Celebici Judgement, the Prosecution made

16 the opposite submission, exactly the same as the one I advanced today and

17 directly contrary to the one they have advanced.

18 What they said was, the Prosecution submits that the Appeal

19 Chamber should determine, "Basic sentencing principles which will be

20 applied by the Trial Chamber. The Appeal Chamber notes the Prosecution

21 made similar submissions"; then gives detail of a further case before the

22 Appeals Chamber, arguing, and I quote, "That such principles would assist

23 in order to achieve consistency and even handedness in sentencing before

24 the Trial Chamber."

25 Those words, with respect, don't lie easily with the answer given

Page 236

1 to Her Honour Judge Wald before lunch. Those arguments advanced by the

2 Prosecution in the Celebici case were, of course, advanced in an appeal

3 against sentence that could be sustained by an application of comparison

4 with the tariff as it has developed. And I do venture to suggest that the

5 adoption of a diametrically opposite stance today reflects the recognition

6 that this sentence is so out of step with the jurisprudence of this Court

7 and the Tribunal for Rwanda that they are, by adopting the stance they do,

8 acknowledging the paucity of their submission.

9 The Tadic Judgement at page 55 -- sorry, paragraph 55 on page 24

10 allowed the appeal - it was the only ground, as my memory serves me, upon

11 which the sentence was reduced on the merits as opposed to arguments about

12 when time should run -- allowed the appeal and reduced from 25 to 20 the

13 sentence for this reason: because it failed to adequately consider the

14 need for sentences to reflect the relative significance of the role of the

15 appellant in the broader context of the conflict in the former

16 Yugoslavia.

17 The ground of appeal that I was advancing before the Appeal

18 Chamber in that case read as follows, that the Trial Chamber had fell into

19 error with respect to the need to develop a range of sentences based upon

20 the relative position of the accused and, I might add in addition to that,

21 the role that he played.

22 So we do, with respect, invite the Court to consider the response

23 of the Prosecution to our submissions on tariff as, at the very least,

24 being economical.

25 Curiously, when it came to the Erdemovic Judgement, the

Page 237

1 Prosecution were only too happy to point out the tariff principle did not

2 apply. There is merit in their argument on that ground, and I acknowledge

3 that. The facts were entirely different. Had it not been for Judge Wald,

4 not one word would have been said by them about the Tadic Judgement, upon

5 which I relied heavily in my oral submissions.

6 What was said to Judge Wald was wrong. It is quite untrue to say

7 that Tadic was only convicted of two murders. The Appellant Chamber

8 reversed two acquittals for murder of the two policemen in the village in

9 question, the name which escapes me, whose throats Tadic had slit. But

10 that was, of course, in addition to the other murders that he had been

11 convicted of, including the five in the village of Jelisca. I apologise

12 for the almost inevitable mispronunciation of that name.

13 I would invite the Court to consider the original sentencing

14 judgement in Tadic to obtain a fair view of the crimes that Tadic had been

15 convicted of; to look at the conclusions of the appeal against conviction

16 which convicted him of a number of offences of which he had hitherto been

17 found not guilty; and then look at the appeal against sentence in order to

18 see whether or not there is any merit at all in the submission made that a

19 real or sensible distinction can be drawn between the two cases. We

20 confidently submit that if the Court were to take the trouble, as I know

21 it will, to look at those documents, then the Court will be inevitably

22 driven to the conclusion that no sensible distinction can be drawn.

23 It seemed inconsistent, with the way Judge Wald's question was

24 answered, to reflect upon what the Prosecution were themselves saying in

25 the Tadic Sentencing Appeal. What they were then taking to the Appeals

Page 238

1 Chamber was, and I quote, "The respondent contends that in assessing the

2 circumstances relevant to the appellant, the Trial Chamber also considered

3 the brutality of the acts in which he personally engaged and his

4 willingness to take part in the ethnic cleansing which occurred in the

5 area," an argument advanced with all of the adjectives properly appended

6 to the conduct of this appellant today.

7 Rank, it was suggested in oral argument, was of no importance.

8 Indeed, it was suggested that the fact that Jelisic was of low rank or,

9 more accurately, no rank was not a matter to be taken into account. That

10 is entirely inconsistent with the view of this Appeals Chamber in the

11 Tadic Judgement. Of course they are right when they say that a person

12 must be punished for the crimes he has committed not the rank he held.

13 That isn't the reason why rank is distinguished in sentence.

14 Had Hitler been alive at the end of the war, the Court may be

15 confident that he would have received a heavier sentence than a member of

16 a single Einzatgruppen commando unit that was responsible for ethnic

17 cleansing in eastern Europe. Why? Hitler never killed anybody with his

18 own hands, so far as we know, but he would have received the ultimate

19 penalty because it was his position in the command structure of the Third

20 Reich that set in motion the acts that were put into place by others. It

21 is that position of command, not the fact that he never touched the hair

22 of any one Jew's head, that would have meant he should have paid and would

23 have paid the ultimate penalty.

24 The reason why rank commands a higher penalty is not because the

25 person of high rank is punished more for doing the same act, it is because

Page 239

1 the fact that they are in a position of high rank which enables them to

2 influence affairs over a much wider ambit than somebody of low or no

3 rank. It is the use of that influence that is essential for any ethnic

4 cleansing programme to operate, and it is the use of it by men of rank

5 that commands higher sentences than mere foot soldiers.

6 It is, we respectfully submit, a distinction that the Prosecution

7 refuse to recognise for the same reason as they refuse to recognise the

8 need for a tariff because they know this sentence cannot survive

9 examination.

10 Just a word or two about the evidence before Mr. Babic deals with

11 the matters that he is going to.

12 The agreed factual basis is, of course, going to be fleshed out by

13 the evidence relating to the individual counts upon which he has pleaded.

14 I accept entirely what Mr. Nice says so far as that is concerned. But

15 insofar as the evidence embraces allegations that have not been the

16 subject of any admission of guilt and did not result in any conviction,

17 then they must be put out of the mind of the Trial Chamber when it turns

18 to sentence. Insofar as the evidence did, as it did at trial, embrace a

19 far wider criminal allegation, namely, of genocide, then we submit that

20 that ought to be ignored save and insofar as it is directly relevant to

21 the individual counts to which the accused has pleaded.

22 Finally, we do not accept the summary of evidence as presented by

23 Mr. Nice as either fair or accurate. It is redolent of problems for me to

24 select individual passages from the transcripts that point in the opposite

25 direction. We would just invite the Court to consider the evidence of six

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Page 241

1 witnesses not particularly long before coming to a decision as to the

2 effect of the witnesses to whom he spoke; they are DA, DE, DH, DK, DO, and

3 DQ. If the Court would glance at those transcripts, we would respectfully

4 submit that the interpretation put on them by Mr. Nice cannot fairly be

5 sustained.

6 That is all I seek to say by way of reply, subject to the words of

7 Mr. Babic.

8 JUDGE SHAHABUDDEEN: Thank you, Mr. Clegg.

9 Mr. Babic.

10 MR. BABIC: [Interpretation] I shall try to respect the time limit

11 set by Your Honours and be as concise as possible.

12 We did not draw attention to an incorrectness in the sentence and

13 that is the killing of the Zahirevic brothers. In paragraphs 37 and 38 of

14 the judgement, Goran is alleged to have killed both Zahirevic brothers,

15 and this is also contained in the disposition; the second amended

16 indictment alleges that Goran Jelisic killed only one Zahirevic brother,

17 and this is also contained in the agreed statement of facts signed by both

18 parties. So I appeal to the Appeals Chamber to bear this fact in mind and

19 also to take into consideration when determining the sentence.

20 Secondly, we accept with satisfaction the position of the

21 Prosecution that the document to which the Defence -- the document

22 referred to was not signed by the Defence, though earlier on it was

23 claimed that it was a joint document. This is also stated in paragraph

24 18, footnote 9. So I ask Your Honours also to take that into

25 consideration.

Page 242

1 Of special interest to me is why the Prosecution has not referred

2 to the Defence witnesses. (redacted)

3 (redacted)

4 (redacted). If the primary aim of

5 the judgements of this Tribunal is to achieve reconciliation, then it was

6 the duty of the Defence and of the Prosecution to bear that in mind to

7 show that people can still live together, that they can do some good

8 things to each other, and that that can serve as a basis for their joint

9 life in the future.

10 The statement by the Prosecution that they never said that Jelisic

11 was the camp commander is something that can easily be disproved. Both

12 the first and the second amended indictment contained Counts 50 and 51,

13 and those counts say: "Goran Jelisic, acting as camp commander of the

14 Luka camp, created an atmosphere of fear, killing, mistreating, and

15 threatening detainees, whereby he subjected them to extreme psychological

16 trauma, degradation, and fear of physical injury and death." These counts

17 and descriptions and allegations were later reversed by the Prosecution,

18 and the amended indictment does not contain them, and we are glad to

19 accept that the Prosecution agrees in the fact that Jelisic was not a camp

20 commander.

21 The Prosecution claims today there was nothing more than a plea of

22 guilt, but let me add that regarding the agreed statement of facts between

23 the Prosecution, which was represented by other Prosecutors and the

24 Defence, a number of meetings were held, and only once all those facts had

25 been thrashed out and when the Prosecution accepted the plea of Goran

Page 243

1 Jelisic as agreed, only then was that agreement signed. Therefore, the

2 second document that the Prosecution is relying on cannot disclaim this

3 first joint document.

4 So one could put it this way: For the moment, we'll agree, but

5 we'll act as if we are working on the basis of the previous document,

6 which is quite different. And I must say, with all due respect, that that

7 is not fair, and it is also not in accordance with the instructions given

8 by His Honour Judge Jorda to the parties at the Status Conference held on

9 the 23rd of September, 1998, when this agreement was being negotiated. So

10 I would appeal to Your Honours to refer to the transcript of that Status

11 Conference.

12 And the last point that I would like to make I would like to do in

13 private session, please.

14 [Private session]

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 244

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 [Open session]

16 JUDGE SHAHABUDDEEN: We're now in public session.

17 I take it that closes the arguments --

18 MR. CLEGG: It does.

19 JUDGE SHAHABUDDEEN: -- for Mr. Jelisic.

20 MR. CLEGG: It does.

21 JUDGE SHAHABUDDEEN: Then before the Appeals Chamber withdraws to

22 consider its decision, there are perhaps one or two points I might

23 mention. One has to do with the skeleton arguments submitted by the

24 Defence. We have referred to that, but since we will be in need of it

25 possibly for the preparation of a judgement, would you help to clarify the

Page 245

1 position as to whether that document has been formally laid over or not?

2 Is it part of the record?

3 MR. CLEGG: It is part of the record, I assume, because it has

4 been circulated to all parties.

5 JUDGE SHAHABUDDEEN: Fine, then that is part of the record.

6 The other thing I want to refer to concerns your reference to the

7 Celebici Judgement and to that part of it which dealt with cumulative

8 convictions. I think the Prosecution said that they might want to file a

9 statement, but my understanding of the position was that they would wish

10 to file a statement only if you pursued the point, and I don't recall that

11 the point was pursued. Was it?

12 MR. CLEGG: It was pursued in the sense that having raised the

13 matter, my reading of the judgement would indicate that it was applicable

14 to the convictions in this case, and therefore we would pursue it.

15 JUDGE SHAHABUDDEEN: Good. Then we'll ask the Prosecution what

16 time they would judge to be convenient for the filing of their statement

17 on the point.

18 MR. YAPA: Thank you, Your Honour. As my learned friend mentions

19 that it was taken up as a matter of appeal now, to respond to the

20 applicability of the judgement to the issues in this case, we would say we

21 would require about ten days' time.


23 MR. YAPA: Yes.

24 JUDGE SHAHABUDDEEN: Mr. Clegg, thereafter what period would suit

25 you for a reply?

Page 246

1 MR. CLEGG: Ten days.

2 JUDGE SHAHABUDDEEN: Ten plus ten, that's twenty. Okay, then,

3 that is settled. All right.

4 Then I come to the last thing on my shopping list which has been

5 presented to me by the secretary, and it has to do, Mr. Clegg, with your

6 offer to comply with the Scheduling Order of the 30th of January calling

7 upon both sides to file public versions of certain documents. There are

8 two documents in respect to which public versions have not yet been filed

9 by the Defence. One is the appellant's brief in the appellant's -- the

10 cross appellant's appeal dated 7 August 2000, and the other one is his

11 reply dated 6 October 2000.

12 MR. CLEGG: I have very helpfully been provided with an unmarked

13 copy of each of those by the registry yesterday. We will file a redacted

14 copy within ten days.

15 JUDGE SHAHABUDDEEN: Ten days. All right, let it be so written.

16 That, then, concludes the hearing, and the Bench wishes to express

17 thanks to both sides for very able and helpful arguments.

18 We will reserve decision, and you will be both notified in due

19 course.

20 --- Whereupon the Appeal Proceedings adjourned at

21 3.03 p.m.





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