V. SENTENCING
1191. The provisions of the Statute and Rules hereinbelow stated are applicable to the present section of this Judgement.
Article 24
Penalties
1. The penalty imposed by the Trial Chamber shall be limited to imprisonment. In determining the terms of imprisonment, the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia.
2. In imposing the sentences, the Trial Chambers should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person.
3. In addition to imprisonment, the Trial Chambers may order the return of any property and proceeds acquired by criminal conduct, including by means of duress, to their rightful owners.
Rule 85
Presentation of Evidence
(A) Each party is entitled to call witnesses and present evidence. Unless otherwise directed by the Trial Chamber in the interests of justice, evidence at the trial shall be presented in the following sequence:
[…](vi) any relevant information that may assist the Trial Chamber in determining an appropriate sentence if the accused is found guilty on one or more of the charges in the indictment.
[…]
Rule 101
Penalties
(A) A convicted person may be sentenced to imprisonment for a term up to and including the remainder of the convicted person’s life.
(B) In determining the sentence, the Trial Chamber shall take into account the factors mentioned in Article 24, paragraph 2, of the Statute, as well as such factors as:
(i) any aggravating circumstances;
(ii) any mitigating circumstances including the substantial cooperation with the Prosecutor by the convicted person before or after conviction;
(iii) the general practice regarding prison sentences in the courts of the former Yugoslavia;
(iv) the extent to which any penalty imposed by a court of any State on the convicted
(v) person for the same act has already been served, as referred to in Article 10, paragraph 3, of the Statute.(C) The Trial Chamber shall indicate whether multiple sentences shall be served consecutively or concurrently.
(D) Credit shall be given to the convicted person for the period, if any, during which the convicted person was detained in custody pending surrender to the Tribunal or pending trial or appeal.
1192. The provisions of Article 24(2) of the Statute which require the Trial Chamber to take the gravity of the offence and the individual circumstances of the convicted person into account, and the provisions of Rule 101 of the Rules, would appear to include as many varied factors and situations as would be necessary for consideration in the imposition of sentences upon conviction. However, Article 24(1) of the Statute and sub-Rule 101(B)(iii) have gone further to direct the Trial Chamber to "have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia", and "to take into account … such factors as … the general practice regarding prison sentences in the courts of the former Yugoslavia". It would appear to the Trial Chamber that these provisions aim at uniformity of the length of sentences, not necessarily the consideration of their imposition, which is based on factors such as gravity of the offences and other factors. The expression "other factors" cannot be exhaustive and are not limited to those named, but are within the discretion of the Trial Chamber.
1193. The statutory provisions of the International Tribunal speak of prison sentences in the courts of the former Yugoslavia. These provisions are discussed in greater detail in sub-section 1 below. At all times material to this case, capital punishment was in existence in the Penal Code of the Socialist Federal Republic of Yugoslavia. By constitutional amendment in 1977 capital punishment was abolished in some of the republics of the SFRY other than Bosnia and Herzegovina. In the Social Federal Republic of Yugoslavia imprisonment, as a form of punishment, was limited to a term of 15 years or, in cases for which the death penalty was prescribed as an alternative to imprisonment, to a term of 20 years. 1063This provision seems to be in contradiction to sub-Rule 101(A) which provides that a person convicted by the Tribunal may be sentenced to imprisonment for a term "up to and including the remainder of the convicted person’s life." Rule 101 was made under, and by virtue of, Article 15 of the Statute and should be read in this light. So construed, sub-Rule 101(A) is not in violation of Article 24 (1) which merely requires the Trial Chamber to have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia.
1194. The governing expression in Article 24(1) is "have recourse to" which, to the Trial Chamber, is an ordinary English expression and not a term of art. The Concise Oxford Dictionary 1064defines the word "recourse" as "resorting to a possible source of help". This suggests that the source of help to which recourse is had need not be mandatory and binding. The general view is that it is a mere aid to elucidation of the principles to be followed.
1195. There is no doubt that reference to the penal practice of the law of the former Yugoslavia relating to sentencing is unprecedented. It is true that international law has not developed a sentencing pattern of its own and must rely on the experience of domestic jurisdictions for its guidance. In this case, the legal system of the former Yugoslavia is the most appropriate jurisdiction from which to seek guidance. The reference immediately raises two broad issues. First, does recourse to the general practice mean recourse to legislative prescriptions, or recourse to the actual sentencing practices of judges and courts in the former Yugoslavia? The plain literal meaning of the expression in Article 24(1) suggests that recourse should be had to the actual sentences imposed. Secondly, it will be observed that there is an obvious discrepancy and conflict in the sentencing regimes of the International Tribunal and that of the courts of the former Yugoslavia. There is no provision for the Tribunal to impose a sentence of death. It can impose a life sentence. In contrast, the SFRY Penal Code allowed the imposition of a sentence of death in certain cases. However, the courts of the former Yugoslavia were not allowed to impose a prison term of more than 20 years, even for criminal offences involving the death penalty. Where such differences or discrepancies exist between the Statute and Rules of the International Tribunal and the SFRY Penal Code concerning maximum or minimum sentences, how should it be resolved? This raises difficult questions of interpretation of the governing expression in Article 24(1) of the Tribunal’s Statute.
1196. This provision was considered by Trial Chamber I in its judgement on sentencing in The Prosecutor v. Drazen Erdemovic of 29 November 1996,1065 where recourse to the general practice regarding sentences applied by the courts of the former Yugoslavia was held to be "in fact, a reflection of the general principle of law internationally recognised by the community of nations whereby the most severe penalties may be imposed for crimes against humanity…".1066 The sentencing judgment in The Prosecutor v. Dusko Tadic,1067 referred to the expression "recourse" in the sense of reference that the Trial Chamber had "recourse to the statutory provisions governing sentencing in the former Yugoslavia and to the sentencing practice of its courts".1068 In each case, the practice in the courts of the former Yugoslavia was consulted as an aid to determination of the appropriate sentence.
1197. The Defence for Hazim Delic has submitted that the penal sanctions in the SFRY Penal Code to which recourse shall be had were in existence before the Security Council, through the creation of this Tribunal, established another enforcement mechanism with its own penal sanctions. It is argued that Article 24(1) of the Statute does not vest the Tribunal with the authority to impose the death penalty. It also does not set a minimum or maximum penalty for any offence. Rule 101 allows the imposition of life imprisonment upon conviction for any offence. It is, accordingly, submitted by the Defence for Mr. Delic that, under the principles of legality and nullum crimen sine lege, the International Tribunal cannot impose a sentence exceeding 15 years imprisonment. It is argued that any such sentence would be greater than that authorised at the time of the offence and therefore in violation of the nullum crimen sine lege principle. This view appears to suggest that the International Tribunal, through Article 24(1) of the Statute, is bound by the law of the former Yugoslavia relating to sentences.
1198. Chapter 16 of the SFRY Penal Code, entitled "Criminal Acts against Humanity and International Law" is the part of the Penal Code most relevant to the present proceedings. Article 142 therein proscribes a number of criminal acts, including killing, torture, inhumane treatment of the civilian population, causing great suffering or serious injury to body and health, unlawful forced transfer of populations, use of measures of intimidation and terror, and the unlawful taking to concentration camps and other unlawful confinements. A minimum term of imprisonment of not less than five years is to be imposed on conviction of each of these offences. The express words are "shall be punished by imprisonment for not less than five years or by the death penalty".
1199. Article 41(1) of the SFRY Penal Code sets out the various factors to be taken into account in the determination of an appropriate sentence. Summarily stated, this provision directs the relevant courts to consider: (a) the degree of criminal responsibility and motives for the commission of the offence, the intensity of threat or injury to the protected object and the circumstances of the commission of the offence; (b) the perpetrator’s past life, his personal circumstances and his behaviour after the commissioning of the offence; and (c) other circumstances relating to the personality of the perpetrator.
1200. It may be justifiably argued that the guidelines prescribed in Article 41(1) of the SFRY Penal Code for the determination of sentences after conviction, are more comprehensive than the criteria prescribed in a combined reading of Article 24 (2) of the Statute and sub-Rule 101(B) of the Rules. Accordingly, whilst resort may be had to the sentencing practices of the courts in the former Yugoslavia, such practice cannot be determinative. This Trial Chamber agrees completely with the opinion expressed in the Erdemovic Sentencing Judgement, 29 November 1996, that:
[g]iven the absence of meaningful national judicial precedents and the legal and practical obstacles to a strict application of the reference to the general practice regarding prison sentences in the courts of the former Yugoslavia, the Trial Chamber considers that the reference to this practice can be used for guidance, but is not binding. ...
Whenever possible, the International Tribunal will review the relevant legal practices of the former Yugoslavia but will not be bound in any way by those practices in the penalties it establishes and the sentences it imposes for the crimes falling within its jurisdiction. 1069
1201. In this context it may further be observed that the statute of the ICTR, in its provision on penalties, similarly provides that recourse shall be made to the general practice regarding prison sentences in the courts of Rwanda in determining terms of imprisonment.1070 In the recent case of The Prosecutor v. Jean Kambanda it was held that such practices were not binding upon the ICTR but were only one of the factors to be taken into account. 1071
1202. In addition to recourse to the general practice of the courts of the former Yugoslavia with regard to sentencing, it is crucial to bear in mind the fact that the offences being punished are offences under international humanitarian law and the purpose for the exercise of this ad hoc jurisdiction. Whereas judicial precedents may be lacking in international jurisdictions, the motives for establishing the International Tribunal under Chapter VII of the United Nations Charter barely five years ago should not be ignored.
1203. The recent dictum of Trial Chamber I of the ICTR would appear to be an echo of the universal attitude towards those found guilty by it and this Tribunal. Trial Chamber I of the ICTR stated that:
[i]t is clear that the penalties imposed on accused persons found guilty by the Tribunal must be directed, on the one hand, at retribution of the said accused, who must see their crimes punished, and over and above that, on the other hand, at deterrence, namely dissuading for good those who will attempt in future to perpetrate such atrocities by showing them that the international community was not ready to tolerate the serious violations of international humanitarian law and human rights.1072
This is a policy in support of punishment reflecting both general and particular deterrence. The policy of the United Nations in matters concerning internal strife has not abandoned efforts of reconciliation. Wherever the evidence demonstrates the possibility of reconciliation, it is the obligation of the Trial Chamber to accentuate such factors and give effect to them.
1204. As has been discussed above, Article 24 (1) of the Statute requires the Trial Chamber to have recourse to the sentencing practice of the courts of the former Yugoslavia. It is, therefore, appropriate to consider such relevant laws in terms of this provision. Articles 38 and 48 of the SFRY Penal Code therefore deserve consideration.
Imprisonment
Article 38
(1) The punishment of imprisonment may not be shorter than 15 days nor longer than 15 years.
(2) The court may impose a punishment of imprisonment for a term of 20 years for criminal acts eligible for the death penalty.
(3) For criminal acts committed with intent for which the punishment of fifteen years imprisonment may be imposed under statute, and which were perpetrated under particularly aggravating circumstances or caused especially grave consequences, a punishment of imprisonment for a term of 20 years may be imposed when so provided by statute.
(4) The punishment of imprisonment is imposed in full years and months, but prison terms not exceeding six months may also be measured in full days.
(5) A term of imprisonment is served in closed, semi-open or open institutions for serving sentences.
(6) A convicted person who has served half of his term of imprisonment, and exceptionally a convicted person who has served a third of his term, may be exempted from serving the rest of his term on the condition that he does not commit a new criminal act by the end of the period encompassed by his sentence (parole).
Combination of criminal acts
Article 48(1) If an offender by one deed or several deeds has committed several criminal acts, and if he is tried for all of the acts at the same time (none of which has yet been adjudicated), the court shall first assess the punishment for each of the acts, and then proceed with the determination of the integrated punishment (compounded sentence) for all the acts taken together.
(2) The court shall impose the integrated punishment by the following rules:
(i) if capital punishment has been inflicted by the court for one of the combined criminal acts, it shall pronounce that punishment only;
(ii) if the court has decided upon a punishment of 20 years imprisonment for one of the combined criminal acts, it shall impose that punishment only;
(iii) if the court has decided upon punishments of imprisonment for the combined criminal acts, the integrated punishment shall consist of an aggravation of the most severe punishment assessed, but the aggravated punishment may not be as high as the total of all incurred punishments, and may not exceed a period of 15 years imprisonment;
(iv) if for the combined criminal acts several punishments of imprisonment have been decided upon which taken together do not exceed three years, the integrated punishment may not exceed a period of eight years of imprisonment;
(v) if fines have been determined by the court for the combined criminal acts, the court shall increase the highest fine determined, but it may neither exceed the total of all punishments decided upon nor 50,000 dinars, that is to say 200,000 dinars when one or more of the criminal acts have been committed for the purpose of obtaining gain;
(vi) if the court has fixed punishments of imprisonment for some of the combined criminal acts, and fines for others, it shall impose one punishment of imprisonment and one fine under provisions set forth in items 3 to 5 of this paragraph.(3) The court shall impose an accessory punishment if it is prescribed for any one of the combined criminal acts, and if it has decided upon several fines it shall impose one compound fine under provisions set forth in item 5, paragraph 2 of this article.
(4) If the court has decided upon punishments of imprisonment and juvenile custody for the combined criminal acts, it shall impose a punishment of imprisonment as the compound sentence, following the rules set forth in items 2 to 4, paragraph 2 of this article.
1205. Explaining the sentencing provisions of the former SFRY, Dr. Zvonimir Tomic, an expert witness for the Defence, pointed out that, by virtue of the provisions of article 38(1), prison sentences in the SFRY could not be shorter than 15 days, nor longer than 15 years. Thus, there was a mandatory minimum and maximum period of sentence which the courts could impose. This kind of punishment was described as the closed sentencing model. A second model, which was described as the half-open sentencing frame, was one where there existed a prescribed maximum or minimum. In a third model the courts could sentence within a scale from five to 15 years.
1206. Dr. Tomic explained that prison sentences could be imposed for offences involving capital punishment. This was where circumstances of mitigation rendered capital punishment an improper sentence. In such circumstances a maximum prison sentence of 20 years could instead be imposed. Accordingly, for such offences, the courts could impose capital punishment, or 20 years imprisonment, or, as an alternative, a prison sentence ranging from five to 15 years. A 20 year prison term could only be imposed for the most serious types of criminal offences.1073
1207. In response to questions by counsel for the Defence referring to the correctness of the sentence of 20 years imprisonment imposed in the case of The Prosecutor v. Dusko Tadic, Dr. Tomic explained:
[t]he Court always had the possibility to substitute the capital punishment with a 20-year prison sentence. So at the beginning, it was possible for the court to determine a 20-year sentence for all criminal offences for which capital punishment was provided for. The court always had the choice. It could either determine the capital punishment or 20-year prison sentence. That was one possibility. The other possibility was, even if it did determine capital punishment, a higher court, an appeals court could substitute that punishment with a 20-year prison sentence, but the first solution was commonly used.1074
1208. There is still an aspect of sentencing policy which has raised some controversy. There is no question that the International Tribunal should have recourse to the practice of the courts of the former Yugoslavia in the sentencing of convicted offenders. However, for crimes which would receive the death penalty in the courts of former Yugoslavia, the International Tribunal may only impose a maximum sentence of life imprisonment, consistent with the practice of States which have abolished the death penalty. This is consistent with the commitment of States progressively to abolish the death penalty under the Second Optional Protocol to the ICCPR.1075 This is the meaning given to the relevant provisions of the Statute by members of the Security Council. 1076
1209. In the Tadic Sentencing Judgment, Trial Chamber II held, following the provisions of the SFRY Penal Code, that "[i]mprisonment as a form of punishment was limited to a term of 15 years, or, in cases for which the death penalty was prescribed as an alternative to imprisonment, to a term of 20 years".1077 It may, on this basis, be contended that for the International Tribunal to impose a sentence beyond 20 years would be contrary to law. This view is held by Professor Bassiouni, who has written that the principles of legality and nullum crimen sine lege prohibit the International Tribunal from imposing a sentence of more than 20 years. According to this author:
A more serious problem arises in that penalties for international crimes, such as those contained in Articles 2 through 5, are only punishable by a maximum of 20 years under the applicable national criminal codes. A higher penalty, which appears to be authorized by Rule 101(A), would violate principles of legality and the prohibition of ex post facto laws. Consequently, Rule 101 should be amended.1078
1210. The Trial Chamber disagrees with the above opinion as representing an erroneous and overly restrictive view of the concept of nullum crimen sine lege. This concept is founded on the existence of an applicable law. The fact that the new maximum punishment exceeds the erstwhile maximum does not bring the new law within the principle.
1211. The Trial Chamber accordingly rejects the submission of the Defence for Hazim Delic that since neither the Statute nor the Rules were in force during the times applicable to this case, the Trial Chamber should not impose a sentence longer than 15 years imprisonment for any offence committed prior to the adoption of the Statute of the International Tribunal. The principle on which this submission is based is the awareness of the nationals of Bosnia and Herzegovina of the maximum punishment of 15 years or death, which could be commuted to 20 years.
1212. The Trial Chamber is of the opinion that the governing consideration for the operation of the nullum crimen sine lege principle is the existence of a punishment with respect to the offence. As has been stated by the Appeals Chamber in the Tadic Jurisdiction Decision:
. . . violations were punishable under the Criminal Code of the Socialist Federal Republic of Yugoslavia and the law implementing the two Additional Protocols of 1977. The same violations have been made punishable in the Republic of Bosnia and Herzegovina by virtue of the decree-law of 11 April 1992. Nationals of the former Yugoslavia as well as, at present, those of Bosnia-Herzegovina were therefore aware, or should have been aware, that they were amenable to the jurisdiction of their national criminal courts in cases of violation of international humanitarian law.1079
The fact that the new punishment of the offence is greater than the former punishment does not offend the principle. Furthermore, the contention that the Tadic Sentencing Judgment, which imposed a sentence of 20 years imprisonment,1080 was wrong for not following the former Yugoslavian sentencing procedure would appear to the Trial Chamber to be misconceived. There is no jurisprudential or juridical basis for the assertion that the International Tribunal is bound by decisions of the courts of the former Yugoslavia. Article 24(1) of the Statute does not so require. Article 9(2), which vests primacy in the Tribunal over national courts, indeed implies the contrary.
2. General Principles Relevant to Sentences Imposed by the Tribunal
1213. Sentencing practices in national systems are generally intended to protect the interests of those subject to the jurisdiction of the national legal system. These practices include a broad range of possibilities, which often change from time to time with the aims of sentencing that are paramount in most national systems. In respect of the International Tribunal, Article 24(2) of the Statute provides that the gravity of the offence and the individual circumstances of the convicted person shall be taken into account in imposing sentences. In accordance with sub-Rule 101(B) of the Rules, the Trial Chamber is further required to consider any aggravating circumstances, mitigating circumstances, including substantial cooperation with the Prosecution by the convicted person before or after conviction, and the extent to which any penalty imposed by a court of any State on the convicted person for the same act has already been served. It is in this regard that the evidence of the Prosecution and the Defence becomes relevant. Whereas the Prosecution is entitled to lead all relevant evidence that may assist the Trial Chamber in determining an appropriate sentence in the event that the accused is found guilty on one or more of the charges in the Indictment, it is expected to observe the fundamental principle of the presumption of innocence to which the accused is still entitled until convicted.
1214. On the other hand, the Defence is presumed in its evidence in mitigation to assume that the accused has been found guilty of the offence. This is a very curious situation in which to place the Trial Chamber, which should avoid any prejudicial factors likely to affect the case of an accused presumed to be innocent. It is, in such a situation, somewhat complex to maintain the delicate balance between observance of the full rights of the accused, and the enforcement of the procedural rules relating to sentencing before conviction. The Trial Chamber is expected to disabuse from its consideration all prejudicial evidence in aggravation or mitigation, which would affect its determination of the guilt or innocence of the accused person.
1215. The nature of the relevant information required by the Statute is unambiguously provided in sub-Rule 85(A)(vi). It is "any relevant information that may assist the Trial Chamber in determining an appropriate sentence if the accused is found guilty on one or more of the charges in the indictment". The language of the provision would appear to be all inclusive to the extent that it suggests the admission of evidence inadmissible at trial for the purpose of determining the guilt or innocence of the accused. This is the view of the Prosecution, which submits that the Trial Chamber should be entitled to consider a broad array of information, without necessarily according the same weight to all the evidence tendered by the Prosecution or the Defence. Sub-Rule 85(A)(vi) would appear to support this submission.
1216. In many civil law jurisdictions, and the United States, almost all information may be considered relevant for this purpose and very little limitation is placed on what the court properly may take into account when imposing sentence:
No limitation shall be placed on the information concerning the background, character and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.1081
The Canadian Criminal Code provides as follows:
In determining the sentence, a court shall consider any relevant information placed before it, including any representations or submissions made by or on behalf of the prosecutor or the offender.1082
1217. There seems to be no uniformity in the characterisation of conduct at trial in relation to the effect on the administration of justice. In most systems, both common and civil law, the behaviour of an accused concerning the administration of justice and during trial, may be considered a factor relevant to the determination of sentence, if convicted. For instance, sub-Rule 77(A)(ii) makes it a contempt of the Tribunal and, therefore, an aggravating factor, for any accused to interfere with or intimidate a witness. Furthermore, an accused person who persists in disruptive conduct may, by order of the Trial Chamber, be removed from the courtroom following a warning from the Trial Chamber.1083 These could constitute aggravating circumstances, though not expressly so recognised, and would be considered in the evaluation of the accused’s character. In the federal courts of the United States, obstruction of justice is regarded as an aggravating circumstance, providing for the enhancement of sentence. Included in this category are, inter alia, intimidation of witnesses, or otherwise unlawfully influencing a co-defendant or witness, perjury or suborning perjury. 1084
1218. Although sub-Rule 85(A)(vi) enables consideration of a broad variety of factors in the determination of the appropriate sentence on conviction, the most relevant factors are those central to the circumstances of the crime for which the accused has been found guilty. Thus, though evidence is tendered by the parties, including those collateral to the proceedings and relating to the circumstances of the accused, the issue of mitigation or aggravation only becomes relevant after guilt has been determined. This is because the question of sentence must depend on the particular circumstances of the crime itself and the role of the accused therein. In the absence of a conviction, no consideration of aggravating or mitigating circumstances arises.
1219. Criminal responsibility and culpability within the Statute of the International Tribunal is considered both in terms of the exercise of superior authority and of direct participation in the commission of the crimes charged. The sentencing provisions of Article 24 and Rule 101 do not make such a distinction. This is probably because of the evident truth on which the concept of command responsibility is based, which is the maxim qui facit per alium facit per se, and the fact that offences are committed by individual human beings and not by abstract entities. The Trial Chamber has already stated that the issue of sentencing arises only after guilt has been established. Accordingly, as submitted by the Prosecution in this case, "there can be no absolute rule regarding the manner in which an accused’s position as a superior affects his sentence. . .".1085 The general view is that "[t]he punishment meted out, like the question of guilt itself, will depend on the circumstances of each case". 1086
1220. The finding of guilt on the basis of the exercise of superior authority depends upon knowledge of the crimes committed and the failure to prevent their commission, or punish the perpetrators. The conduct of the accused in the exercise of his superior authority could be seen as an aggravating circumstance or in mitigation of his guilt. There is no doubt that abuse of positions of authority or trust will be regarded as aggravating. Where the circumstances of the superior and the exercise of authority could be regarded as far from actual knowledge, but guilt is determined on the basis of constructive knowledge, this could be a mitigating factor.
1221. As has been pointed out, an accused may be charged for the commission of an offence in his individual and personal capacity as one of the actual perpetrators of the offence in accordance with Article 7(1) of the Statute, and/or in his capacity as a superior authority with respect to the commission of the offence in accordance with Article 7(3). The Defence for Hazim Delic has submitted that it would be improper to impose double sentences on an accused charged and found guilty on both counts. The contention is that both counts are mutually exclusive. A charge under Article 7(1) is based on a theory of acts, whereas a charge under Article 7(3) is based on omission and failure to perform a duty to prevent and/or punish war crimes.
1222. Whilst the proposition in theory appears to be unimpeachable, in practice there are factual situations rendering the charging and convicting of the same person under both Articles 7(1) and 7(3) perfectly appropriate. For instance, consider the situation where the commander or person exercising superior authority personally gives orders to his subordinates to beat the victim to death, and joins them in beating the victim to death. There is here criminal liability under Article 7(1) as a participant in the perpetration of the offence, and under Article 7(3) as a superior. Liability in this case is not mutually exclusive, since the exercise of superior authority in this case is not only the result of an omission to prevent the commission of the crime. It is a positive act of knowledge of the crime and participation in its commission.
1223. The question is whether the crime attracts only one sentence in respect of a superior who participates in the offence charged. Ideally a superior who participates in the actual commission of a crime should be found guilty both as a superior and also as a direct participant as any of the other participants who did so in obedience to his orders. However, to avoid the imposition of double sentencing for the same conduct, it should be sufficient to regard his conduct as an aggravating circumstance attracting enhanced punishment.
1224. A convicted person may be sentenced to imprisonment for a term up to and including the remainder of his or her life. In determining sentence, the Trial Chamber shall take into account the factors mentioned in Article 24(2) of the Statute and sub-Rule 101(B) of the Rules, as well as such factors as the age of the accused, his antecedents including his general reputation, and such other matters as would enable the Trial Chamber to determine the appropriate sentence consistent with the gravity of the offence. The Trial Chamber shall indicate whether multiple sentences shall be served consecutively or concurrently. Furthermore, credit shall be given to the convicted person for the period, if any, during which he was detained in custody pending surrender to the International Tribunal or pending trial or appeal.
1225. Article 24(2) and sub-Rule 101(B) by themselves contain all the indicia necessary for the determination of the appropriate sentence after a finding of guilt. By far the most important consideration, which may be regarded as the litmus test for the appropriate sentence, is the gravity of the offence. It is necessary to reiterate the fact that the Tribunal is vested with jurisdiction over serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991. In the present case, the offences committed include several acts of murder, torture, sexual assaults of the most revolting types, multiple rapes, severe beatings, cruel treatment and inhumane conditions. In the Tadic Sentencing Judgment, Trial Chamber II appears to have taken into account the specific harm caused to the victims (and their families) by the accused.1087 Similarly, Trial Chamber I, in the Erdemovic Sentencing Judgement, 29 November 1996, recognised that the suffering of the victims may be considered in determining the appropriate penalty to impose.1088 The Prosecution has urged the Trial Chamber, in evaluating the gravity of the relevant offences, to take into consideration the suffering of the victims who ultimately died in the Celebici prison-camp.
1226. The gravity of the offences of the kind charged has always been determined by the effect on the victim or, at the most, on persons associated with the crime and nearest relations. Gravity is determined in personam and is not one of a universal effect. Whereas the guilt of the accused may be related to the specific and general harm of the victim and his relations, it would be too remote to ascribe every woe of the surrounding neighbourhood to the guilty accused. However, in the situation of the Celebici prison-camp it is possible that the conduct of the guilty accused may have resulted in the deaths of, or injury to, other detainees in the prison-camp other than those in relation to whom specific findings have been made above. The Trial Chamber is, however, not to engage in speculation and should be bound by the evidence before it. The Trial Chamber adopts the same view in respect of detained persons who survived but suffer from the effects of prolonged incarceration.
1227. The gravity of the offence and the individual circumstances of the accused are typically to be considered with respect to the particular and, if need be, the peculiar circumstances of each case. Thus, the circumstances of the accused would determine the factors the Trial Chamber will take into account as matters of aggravation or mitigation. In the Tadic Sentencing Judgment, the willing involvement of the accused in violent ethnic cleansing was regarded as an aggravating circumstance.1089 In the Erdemovic Sentencing Judgement, 29 November 1996, after observing that express consideration of aggravating circumstances in crimes against humanity was not necessary, since these crimes are per se of extreme gravity, the Trial Chamber went on to suggest possible circumstances surrounding the commission of the offence which might preclude leniency.
1228. Sub-Rule 101(B)(ii) provides that the Trial Chamber, in determining the sentence, shall take into account mitigating factors "including the substantial cooperation with the Prosecutor by the convicted person before or after conviction". The use of the term "including", which is an expression of expansion, suggests that this provision is not exhaustive. Accordingly, other such factors may be taken into consideration by the Trial Chamber in the determination of sentence.
1229. In the Tadic Sentencing Judgment, the minor leadership role of the accused was taken into account in determination of the sentence.1090 In the sentencing of Drazen Erdemovic factors such as obedience to superior orders and substantial cooperation with the Prosecution were taken into account. While duress was rejected as a complete defence for the charge of crimes against humanity and/or a war crime involving the killing of innocent human beings, it was taken into account by way of mitigation. 1091
1230. Article 33 of the SFRY Penal Code prescribed three reasons for the imposition of criminal sanctions, to be taken into account in the determination of sentence. These reasons were:
(1) preventing the offender from committing criminal acts and his rehabilitation;
(2) rehabilitative influence on others not to commit criminal acts;
(3) [. . .] influence on the development of citizens’ social responsibility and discipline.
The Trial Chamber agrees that these are reasons worth considering in the determination of sentence. In addition to retribution and deterrence, relied upon by the Prosecution, the Trial Chamber here briefly discusses protection of society, rehabilitation and motive as factors to be taken into consideration in the determination of sentence.
(a) Retribution
1231. The theory of retribution, which is an inheritance of the primitive theory of revenge, urges the Trial Chamber to retaliate to appease the victim. The policy of the Security Council of the United Nations is directed towards reconciliation of the parties. This is the basis of the Dayton Peace Agreement by which all the parties to the conflict in Bosnia and Herzegovina have agreed to live together. A consideration of retribution as the only factor in sentencing is likely to be counter-productive and disruptive of the entire purpose of the Security Council, which is the restoration and maintenance of peace in the territory of the former Yugoslavia. Retributive punishment by itself does not bring justice.
1232. The protection of society from the guilty accused is an important factor in the determination of appropriate sentence. The policy of protection depends upon the nature of the offence and the conduct of the accused. The protection of society often involves long sentences of imprisonment to protect society from the hostile, predatory conduct of the guilty accused. This factor is relevant and important where the guilty accused is regarded as dangerous to society.
(c) Rehabilitation
1233. The factor of rehabilitation considers the circumstances of reintegrating the guilty accused into society. This is usually the case when younger, or less-educated, members of society are found guilty of offences. It therefore becomes necessary to reintegrate them into society so that they can become useful members of it and enable them to lead normal and productive lives upon their release from imprisonment. The age of the accused, his circumstances, his ability to be rehabilitated and availability of facilities in the confinement facility can, and should, be relevant considerations in this regard.
(d) Deterrence
1234. Deterrence is probably the most important factor in the assessment of appropriate sentences for violations of international humanitarian law. Apart from the fact that the accused should be sufficiently deterred by appropriate sentence from ever contemplating taking part in such crimes again, persons in similar situations in the future should similarly be deterred from resorting to such crimes. Deterrence of high level officials, both military and civilian, in the context of the former Yugoslavia, by appropriate sentences of imprisonment, is a useful measure to return the area to peace. Although long prison sentences are not the ideal, there may be situations which will necessitate sentencing an accused to long terms of imprisonment to ensure continued stability in the area. Punishment of high-ranking political officials and military officers will demonstrate that such officers cannot flout the designs and injunctions of the international community with impunity.
(e) Motives for the Commission of Offences
1235. Generally, motive is not an essential ingredient of liability for the commission of an offence. It is to some extent a necessary factor in the determination of sentence after guilt has been established. The offences charged are violations of international humanitarian law. It is, therefore, essential to consider the motives of the accused. The motive for committing an act which results in the offence charged may constitute aggravation or mitigation of the appropriate sentence. For instance, where the accused is found to have committed the offence charged with cold, calculated premeditation, suggestive of revenge against the individual victim or group to which the victim belongs, such circumstances necessitate the imposition of aggravated punishment. On the other hand, if the accused is found to have committed the offence charged reluctantly and under the influence of group pressure and, in addition, demonstrated compassion towards the victim or the group to which the victim belongs, these are certainly mitigating factors which the Trial Chamber will take into consideration in the determination of the appropriate sentence.
B. Factors Relevant to Sentencing in Respect of Each Accused
1236. This part of the Judgement is concerned with the imposition of the appropriate penalties on each of the accused persons found guilty and in respect of the counts of the Indictment of which they have been found guilty. For this purpose the Trial Chamber, considers, generally, the provisions of Article 24(2) of the Statute and sub-Rule 101(B) of the Rules, as well as the sentencing practice of the courts of the former Yugoslavia, following the provisions of the SFRY Penal Code. The Trial Chamber has discussed the law and practice in some detail above. In considering the appropriate sentence, the Trial Chamber briefly discusses, where relevant, the circumstances of the offence, the role played by the accused, factors in aggravation or mitigation of the offence and any other relevant factors. The three accused persons involved in this exercise are Zdravko Mucic, Hazim Delic and Esad Landzo. The appropriate sentences imposed upon them on conviction in respect of the various counts in the Indictment will be considered seriatim, beginning with Zdravko Mucic. Zejnil Delalic, having been acquitted on all counts charged in the Indictment, is not a subject of sentencing.
1237. The Trial Chamber has found Zdravko Mucic guilty, pursuant to Article 7(3) of the Statute, for: the wilful killing and murder of Zeljko Cecez, Petko Gligorevic, Gojko Miljanic, Miroslav Vujicic and Pero Mrkajic, Scepo Gotovac, Zeljko Milosevic, Simo Jovanovic and Bosko Samoukovic, and for wilfully causing great suffering or serious injury to body or health to, and cruel treatment of, Slavko Susic (counts 13 and 14); the torture of Milovan Kuljanin, Momir Kuljanin, Grozdana Cecez, Milojka Antic, Spasoje Miljevic and Mirko Dordic (counts 33 and 34); the wilful causing of great suffering or serious injury to body or health to, and cruel treatment of, Dragan Kuljanin, Vukasin Mrkajic and Nedeljko Draganic, and the inhuman and cruel treatment of Mirko Kuljanin (counts 38 and 39); and for the inhuman and cruel treatment of Vaso Dordic, Veseljko Dordic, Danilo Kuljanin, Miso Kuljanin, Milenko Kuljanin and Novica Dordic (counts 44 and 45). The Trial Chamber has further found that Zdravko Mucic, by his participation in the maintenance of inhumane conditions in the Celebici prison-camp, as well as by his failure to prevent or punish the violent acts of his subordinates by which the detainees in the Celebici prison-camp were subjected to an atmosphere of terror, is guilty of wilfully causing great suffering or serious injury to body or health, and cruel treatment (counts 46 and 47). Mr. Mucic has also been found guilty pursuant to Article 7(1) of the Statute of unlawful confinement of civilians (count 48).
1238. In the determination of the appropriate sentence to impose in respect of a finding of guilt it is important, in addition to the general factors, to consider the personal factors such as the age of the accused and his antecedents, including time spent in detention before and during trial. The general reputation of the accused is also a factor to be taken into account. These factors may operate either in aggravation or in mitigation, depending upon the matter in consideration.
1239. The Defence for Zdravko Mucic has given evidence of the good character of the accused. Many witnesses, including the daughter of the accused, gave oral testimony before the Trial Chamber. The Defence has pointed out, and it is not denied by the Prosecution, that there is no credible evidence of active, direct participation, in person, in respect of any act of violence or inhuman treatment, by the accused. On the other hand, there is evidence, even on the part of the Prosecution, that the accused, by his words or actions, and indeed by his actual presence in the Celebici prison-camp, prevented the commission of acts of violence.
1240. Zdravko Mucic was at all material times the commander of the Celebici prison-camp and responsible for conditions in the prison-camp. He was the direct superior of Hazim Delic. It is significant to observe that Mr. Mucic, with the exception of counts 46 and 47 (inhumane conditions) and count 48 (unlawful confinement of civilians), has not been found guilty of actively participating in any of the offences charged in the Indictment. All the convictions are in respect of offences for which he was culpable and liable because of the criminal acts of his subordinates.
1241. As discussed above in Section III, the Celebici prison-camp was established to detain those Bosnian Serbs in the Konjic municipality whose loyalty to the State of Bosnia and Herzegovina was in doubt. The solution to the perceived threat from those arrested during military operations by the Bosnian government forces at, inter alia, Bradina and Donje Selo, was to keep them detained in the Celebici prison-camp under the watchful eyes of Bosnian guards who would ensure that they would no longer constitute security risks or any danger to the State. The Trial Chamber has found that the facilities improvised in the Celebici prison-camp were not satisfactory, being far from adequate for the number of detainees. Those who were responsible for the detention of the prisoners clearly did not consider the question of suitability of the facility, which was not used as a prison in times of peace. Moreover, the detainees were Bosnian Serbs and those identified as being in opposition to the survival of the independent Bosnian State. Those superintending the prison-camp were soldiers of this nascent State, some of whom were zealous for its survival and positively resentful and revengeful for the real or imagined activities of their opponents.
1242. The Trial Chamber has found that conditions of detention in the Celebici prison-camp were harsh and, indeed, inhuman. The feeding conditions were at starvation level, medical health and sanitary conditions were inadequate and indeed deplorable. The guards were hostile, and severe beatings, torture and humiliation of detainees were the norm. Some guards experimented punishment methods on detainees, and the death of detainees was a common occurence and not a surprise. No one appeared to care whether the detainees survived. These were the conditions perpetrated by Zdravko Mucic, who was the commander of the Celebici prison-camp after its creation. There is evidence that Mr. Mucic selected the guards. He also chose his deputy, Hazim Delic in apparent demonstration of the type of discipline he expected in the prison-camp. In addition, the prison-camp was set within the Celebici barracks, where soldiers of the Bosnian army had free access.
1243. The uncontradicted evidence before the Trial Chamber is that Mr. Mucic was the commander of the prison-camp, with overall authority over the officers, guards and detainees, and the person to whom the officers and guards were subordinate. Mr. Mucic was responsible for conditions in the prison-camp and for the unlawful confinement of the civilians there detained. He made no effort to prevent or punish those who mistreated the prisoners, or even to investigate specific incidents of mistreatment including the death of detainees. Instead, there is evidence that he was never in the prison-camp at night, when mistreatment was most likely to occur. He was regularly away to visit his family, and remained absent for days in obvious neglect of his duty as commander and the fate of the vulnerable detainees. According to the evidence before the Trial Chamber, he was aware that detainees were being mistreated or even killed. In apparent encouragement, he tolerated these conditions over the entire period he was commander of the prison-camp.
1244. The conduct of Mr. Mucic before the Trial Chamber during the course of the trial raises separately the issue of aggravation. The Trial Chamber has watched and observed the behaviour and demeanour of Mr. Mucic throughout the trial. The accused has consistently demonstrated a defiant attitude and a lack of respect for the judicial process and for the participants in the trial, almost verging on lack of awareness of the gravity of the offences for which he is charged and the solemnity of the judicial process. The Presiding Judge has, on occasions, had to issue stern warnings reminding him that he was standing trial for grave offences. The Prosecution has also presented evidence of an exchange of notes between Zejnil Delalic and Zdravko Mucic conspiring about the fabrication of evidence to be given at the trial. There have also been allegations that Mr. Mucic participated in the threatening of a witness in the courtroom. Such efforts to influence and/or intimidate witnesses are particularly relevant aggravating conduct, which the Trial Chamber is entitled to take into account in the determination of the appropriate sentence.
1245. In addition to the number of aggravating factors, there are some mitigating instances. There was, in the Konjic municipality, a strong anti-Serb feeling at the time relevant to the Indictment. It was in the midst of this anti-Serb hostility that Mr. Mucic became the commander of a detention facility for Serbs suspected of anti-Bosnian activities. Zdravko Mucic was a Bosnian Croat among Bosnian Muslims. He could not ordinarily be seen to be favouring the Bosnian Serbs, who were perceived by many as the enemies of the Bosnian State. These considerations, probably in self-preservation, prevented him from taking stronger measures to contain the obvious mistreatment of detainees.
1246. The Prosecution would seem to agree with this view but counters immediately with the submission that it is not an excuse for the failure of Mr. Mucic to take appropriate action and to do everything within his authority to prevent mistreatment of detainees.
1247. In its submission, the Defence for Mr. Mucic refers to the evidence of witnesses for the Prosecution who testified in glowing terms about the attitude of Mr. Mucic towards the detainees. Reference was made to the oral testimony of Miro Golubovic, Nedeljko Draganic, Grozdana Cecez, Witness P and Witness T, all of whom were Prosecution witnesses. The testimony of Miro Golubovic was that, in his opinion, there would have been no war in Bosnia and Herzegovina if only 20 per cent of the people were like Mr. Mucic. Indeed, the witness stated that he owed his life, and his ability to testify, to Mr. Mucic. Grozdana Cecez spoke of how Mr. Mucic prevented the rape of a 13 year old girl in the prison-camp by taking her back to her parents. Mrs. Cecez also testifed that he paid 300 German Marks to enable her to escape and that he may have assisted in saving others. The apparent concern of Mr. Mucic for the detainees was also evinced in the oral testimony of Witness P, who overheard a telephone conversation in which Mr. Mucic made an urgent and frantic request for food for the detainees. 1095
1248. The Trial Chamber has made very sober reflection on the submissions of the parties. There is a lot to be said for the evidence in mitigation, as there is for the aggravating circumstances discussed above. It is relevant, and crucial, to take into account the circumstances in which the events occurred as well as the social pressures and hostile environment within which the accused was operating. On the whole, the Trial Chamber has taken into consideration the conduct of the accused within the situation when he was in possession of considerable authority and was exercising the power of life and death over the detainees in the prison-camp. The Trial Chamber has taken into account the fact that the accused has not been named by any of the witnesses as an active participant in any of the murders or tortures for which he was charged with responsibility as a superior. The Trial Chamber has not placed any reliance on Esad Landzo’s testimony that Mr. Mucic ordered the killing of Scepo Gotovac. The scenario thus described would suggest the recognition of individual failing as an aspect of human frailty, rather than one of individual malice. The criminal liability of Mr. Mucic has arisen entirely from his failure to exercise his superior authority for the beneficial purpose of the detainees in the Celebici prison-camp.
1249. The Defence for Mr. Mucic has urged the Trial Chamber to compare his case with that of Field Marshal von Leeb during the Second World War1096. The Field Marshal was convicted for the execution of an order by his subordinates, known as "The Barbarossa Jurisdiction Order". This order imposed upon junior officers the authority to shoot individuals on suspicion of certain acts. There was evidence that von Leeb had implemented the order by passing it through the chain of command. The United States Military Tribunal found that the order had been criminally applied by the units and held that, having set it in motion, von Leeb must bear the responsibility for its illegal enforcement. The only parallel with the instant case is that both Field Marshal von Leeb and Mr. Mucic exercised and enjoyed command authority and superior responsibility over subordinates in respect of whose wrongful acts they were and are criminally responsible.
1250. In the instant case, Mr. Mucic, by means of deliberate neglect of his duty to supervise his subordinates, thereby enabling them to mistreat the detainees in the Celebici prison-camp, has been imputed with knowledge of their crimes. Mr. Mucic was consciously creating alibis for possible criminal acts of subordinates. It would constitute a travesty of justice, and an abuse of the concept of command authority, to allow the calculated dereliction of an essential duty to operate as a factor in mitigation of criminal responsibility. In this particular case, the reason for staying away from the prison-camp at nights without making provision for discipline during these periods, which was to save himself from the excesses of the guards and soldiers, is rather an aggravating factor. The sentence of three years imprisonment imposed in the case of Field Marshal von Leeb would not constitute an appropriate precedent on the facts of this case.
1251. The general attitude of Mr. Mucic during the trial proceedings in and outside the courtroom would seem to be a repetition of his casual and perfunctory attitude to his duties in the Celebici prison-camp. He made concerted and sustained efforts where he could to intimidate witnesses and to suborn favourable evidence from them. His demeanour throughout the proceedings suggests that he appears to have regarded this trial as a farce and an expensive joke. Zdravko Mucic has declined to give any oral evidence, notwithstanding the dominant position he played in the facts giving rise to the prosecution of the accused persons.
1252. In imposing sentence, the Trial Chamber has also considered the gravity of the offences for which the accused has been convicted. We do not consider retribution simpliciter as a desirable basis for sentencing in offences of the nature with which the Trial Chamber here is confronted. The Trial Chamber bears in mind, in the conviction of persons exercising superior authority, that the subordinate official, in respect of whose criminal acts the superior is held liable, is often also charged and convicted of the same offence.
2. Hazim Delic
1253. The Trial Chamber has found Hazim Delic guilty of committing a series of violent crimes upon detainees who were at his mercy in the Celebici prison-camp. He has been adjudged as guilty for: the wilful killing and murder of two detainees, Scepo Gotovac and Zeljko Milosevic (counts 1 to 4); the severe beating of Slavko Susic which constitutes cruel treatment and wilfully causing great suffering or serious injury to body or health (counts 11 and 12); the rapes of two female detainees, Grozdana Cecez and Milojka Antic, which constitutes torture (counts 18, 19, 21 and 22); inhuman acts involving the use of an electrical shock device on detainees, which constitutes inhuman and cruel treatment (counts 42 and 43); and, because each of the aforementioned crimes contributed to an atmosphere of terror and thus to the creation and maintenance of inhuman conditions in the Celebici prison-camp, wilfully causing great suffering or serious injury and cruel treatment (counts 46 and 47).
1254. The Prosecution contends, inter alia, that Hazim Delic personally participated in monstrous crimes. He murdered a number of detainees, he brutally raped a number of the women in the prison-camp and then boasted about it, and he frequently beat detainees, often using a baseball bat, causing his victims to suffer broken ribs. The Prosecution submits that he took a sadistic pleasure in the infliction of pain, for example, when he used an electrical device to shock detainees, he would laugh in response to pleas for mercy from the victims.
1255. According to the Prosecution, when Mr. Delic was not physically mistreating detainees, he would often gratuitously take action to make them suffer in other ways, which included making some of them run around and pretend to be automobiles. It contends that Mr. Delic’s own violent behaviour towards the prisoners and his callous disregard for their well-being, could only have encouraged the brutality of others and ensured the existence of a culture of impunity in the Celebici prison-camp.
1256. The Prosecution indicates that Mr. Delic has a prior conviction for murder in Bosnia and Herzegovina for which he served approximately two to two and half years. The Prosecution also presented victim statements in which the victims described the impact of the crimes committed upon them. In addition, the Prosecution submits that the Trial Chamber is able to consider the suffering of the victims in the context of the conditions of imprisonment as an aggravating factor.
1257. The Defence contends that the personal circumstances of Hazim Delic are relevant in the determination of his sentence. It describes a man who was born and lived most of his life in the Konjic municipality. He graduated from secondary school in 1980 and served as a JNA infantryman from January 1982 until February 1983. He was permitted to leave the army 55 days early because of good behaviour. Shortly after his release from the JNA, he commenced employment as a locksmith repairing machinery in a wood working plant. Mr. Delic was married on 31 January 1984 and has two young children. He was mobilised early in the armed conflict in Bosnia and Herzegovina and prior to that time had not had trouble with the law, nor had he been charged with any criminal offences. He had received no training prior to his assignment to the Celebici prison-camp. His Defence tendered a number of statements including one from his father and one from his wife. These support the Defence description of the background of Mr. Delic and attest to his good character.1097
1258. Further, the Defence submits that, on the basis of an expert medical opinion, Hazim Delic suffers from post traumatic stress syndrome based on his experiences during the war. Apparently, over the past year he has become better adjusted and is increasingly able to control his temper and, due to the end of his solitary confinement, is less depressed. In addition, the Defence states that Mr. Delic has had no problems with authority in the Detention Unit or with his fellow detainees, regardless of their background. Finally, the Defence seeks to rely on a declaration by one of its investigators who interviewed a number of people in the Konjic municipality and reported, inter alia, that Hazim Delic had arranged for the release of prisoners, intervened to stop the beatings of prisoners by guards, sought medical treatment for a number of detainees and, on one occasion, sought to arrange for the provision of soap to the detainees in order to make conditions more hygienic and lessen the chances of disease.
1259. During sentencing proceedings Hazim Delic made a brief statement in mitigation of his sentence. He stated that he had said "everything he could to the Prosecution", but that after hearing the testimony of Esad Landzo, he could not sleep at night.1098 He denied giving any orders to kill detainees, to set them on fire or to force them to perform fellatio upon each other. 1099
1260. The touchstone of sentencing is the gravity of the offence for which an accused has been found guilty, which includes considering the impact of the crime upon the victim. Accordingly, the Trial Chamber shall now turn to a consideration of the circumstances of each crime for which Mr. Delic stands convicted.
1261. Hazim Delic has criminally caused the death of two detainees in the Celebici prison-camp. He was a party to the brutal and merciless beatings of Scepo Gotovac. He beat this elderly man to death on the basis of an accusation that he had been responsible for the deaths of Muslims in the Second World War. The cruel premeditation of Hazim Delic is underlined by the fact that he warned his victim before beating him, that he should not hope to remain alive. Zeljko Milosevic also died at the hands of Hazim Delic because Mr. Delic believed he was a Serb sniper. The victim was subjected to a beating by Mr. Delic with a piece of electrical cable, prior to the beating which lead to his death. After the victim refused to make "confessions" to journalists visiting the prison-camp, he encountered the wrath of Mr. Delic, who forewarned him of what was to come and told him to be ready to be beaten at an appointed hour. Thereafter, this detainee was taken out and beaten to death by Hazim Delic, thereby indicating the cold premeditation behind his acts. Mr. Delic has also been found to have inflicted a series of vicious beatings on Slavko Susic, one of which included the use of a heavy implement.
1262. Hazim Delic is guilty of torture by way of the deplorable rapes of two women detainees in the Celebici prison-camp. He subjected Grozdana Cecez not only to the inherent suffering involved in rape, but exacerbated her humiliation and degradation by raping her in the presence of his colleagues. The effects of this crime are readily apparent from the testimony of the victim when she said "…he trampled on my pride and I will never be able to be the woman that I was."1100
1263. Before the first rape of Milojka Antic, Hazim Delic threatened her and told her that, if she did not do whatever he asked, she would be sent to another prison-camp or shot. He then forced her to take her clothes off at gunpoint, ignored her pleas for mercy and cursed and threatened her while raping her. The following day he compounded her fear and suffering by stating "…[w]hy are you crying? This will not be your last time"1101. This rape was followed by two others, one of which involved painful and physically damaging anal penetration. These were committed by Hazim Delic when he was armed, in total disregard of his victim’s pleas for mercy. Ms. Antic testified as to the effect these crimes had on her, including feelings of misery, constant crying and the feeling that she had gone crazy. In a victim impact statement submitted by the Prosecution for the purposes of sentencing, she stated, "[t]he wounds that I carry from the rapes in Celebici will never go away".1102
1264. Hazim Delic is also guilty of inhuman and cruel treatment through his use of an electrical shock device on detainees. The shocks emitted by this device caused pain, burns, convulsions and scaring and frightened the victims and other prisoners. The most disturbing, serious and thus, an aggravating aspect of these acts, is that Mr. Delic apparently enjoyed using this device upon his helpless victims. He treated the device like a toy. He found its use funny and laughed when his victims begged him to stop. There is little this Trial Chamber can add by way of comment to this attitude, as its depravity speaks for itself.
1265. In addition to the offences where Hazim Delic has been found guilty, the Trial Chamber has made a number of factual findings regarding his behaviour in the prison camp. For example, Mr. Delic was instrumental in locking Milovan Kuljanin in a small, dark manhole, with another detainee, for at least a day and a night without any food or water. The purpose of this act was to intimidate the victim prior to his interrogation, during which Mr. Delic entered the room and struck Milovan Kuljanin with a wooden object. He was also present during the collective beating of detainees. Further, he consistently singled out one of the detainees, Vukasin Mrkajic for abuse, and would hit him almost every time he came to Hangar 6, for no apparent reason.
1266. Hazim Delic is guilty of contributing to the atmosphere of terror that prevailed in the prison-camp as a result of the foregoing acts. He deliberately contributed to conditions where detainees were compelled to live with the ever present fear of being killed or subjected to physical abuse. Further, Hazim Delic contributed to this atmosphere by threatening the detainees. For example, Witness R stated that, when Mr. Delic was confronted by a request for medical care by a detainee he responded with the statement "sit down, you have to die anyway, whether you are given medical assistance or not". 1103This same witness testified that this was a favourite phrase that Mr. Delic used with detainees. This is supported by the testimony of Nedeljko Draganic who stated that, when he asked to go to the infirmary in order to have his wound cleaned, Mr. Delic would tell him not to go adding "[y]ou don’t need that, you won’t last very long".1104 In addition, Witness R testified that while in Hangar 6, Mr. Delic would come in and say to the detainees "‘sit down basluci’, the word meaning Muslim tombstones, wishing to imply that we would stay there forever".1105
1267. In addition, Hazim Delic acted in a manner that demeaned the detainees. For example, there is evidence that he only allowed the detainees in Hangar 6 to leave the Hangar twice a day in order to urinate in groups of 30-40 people. Mr. Delic would order them out, in response to which they would have to run out of the Hangar to a ditch and attempt to urinate. A few moments later they were ordered to stop and return to the Hangar. This is contrasted with the fact that, at least initially, these detainees were allowed unrestricted toilet access to a ditch and septic tank behind the Hangar.
1268. An examination of the foregoing crimes and their underlying motivations, where relevant, demonstrates that they cannot be characterised as anything other than some of the most serious offences that a perpetrator can commit during wartime. The manner in which these crimes were committed are indicative of a sadistic individual who, at times, displayed a total disregard for the sanctity of human life and dignity. This is only amplified by the fact that Hazim Delic was the deputy commander of the prison-camp. His victims were captive and at his mercy, he abused his position of power and trust, causing at least two men to die and consigning numerous others to the suffering reserved for survivors of torture and other grave mistreatment. Thus, these circumstances are considered significant aggravating factors in the sentencing of Hazim Delic.
1269. The motive for the commission of these breaches of humanitarian law is also a relevant aggravating factor to be taken into account in the sentencing of Hazim Delic. The evidence indicates that, as well has having a general sadistic motivation, Hazim Delic was driven by feelings of revenge against people of Serb ethnicity. Before raping Ms. Antic, he stated that "the Chetniks1106 were guilty for every thing that was going on. He [Delic] started to curse my Chetnik mother". Nedeljko Draganic, stated that Mr. Delic "walked into the [sic] Hanger Number 6 on one occasion and he told us that we are all detained because we were Serbs".1107 Mirko Dordic testified that, on one occasion, Mr. Delic took detainees outside into the sunshine. The guards switched on spiritual Muslim songs while the detainees had to shout certain slogans in response to Mr. Delic’s, and others, prompting, such as "Hazim is the greatest" or "Sieg Heil".1108 Risto Vukalo stated that Mr. Delic took the detainees out in front of Hanger 6, and ordered them to say slogans of a religious nature which were distasteful to them.1109
1270. The mitigating factors operating in favour of Hazim Delic are the fact that the evidence discloses that on one occasion he distributed blankets to detainees1110. In addition, he occasionally arranged medicine and medical care for some detainees. 1111Further, the Trial Chamber considers that the evidence submitted by the Defence on the personal background, character and health of Hazim Delic are relevant factors in sentencing and have treated them as such.
1271. Contrary to the contention of the Defence, Hazim Delic did not surrender himself to the International Tribunal, but was detained on 2 May 1996 in Bosnia and Herzegovina by the Bosnian authorities and transferred to the Tribunal on 13 June 1996. Accordingly, this contention is incorrect and cannot be used in mitigation of his sentence.
3. Esad Landzo
1272. The charges that stand established against Esad Landzo are clearly of the most serious nature, being, the wilful killing and murder of Scepo Gotovac, Simo Jovanovic and Bosko Samoukovic, the torture of Momir Kuljanin, Spasoje Miljevic and Mirko Dor|ic, and wilful causing of great suffering or serious injury to and cruel treatment of Slavko Susic and Nedeljko Draganic. In addition to the specific acts in the Indictment which Mr. Landzo has been found to have committed, the Trial Chamber also notes that he contributed substantially towards the atmosphere of terror prevailing in the Celebici prison-camp through his brutal treatment of the detainees. The beatings and other forms of mistreatment which Mr. Landzo meted out to the prisoners detained in Hangar 6 and elsewhere in the prison-camp were inflicted randomly and without any apparent provocation, in a manner exhibiting some imaginative cruelty as well as substantial ferocity.
1273. The Trial Chamber thus notes the aggravating factors which are relevant in relation to Mr. Landzo’s conduct in the Celebici prison-camp. In particular, and as emphasised above, reference should be made to the substantial pain, suffering and injury which Mr. Landzo inflicted upon each of his victims and those who were detained in the prison-camp and were witness to his cruelty. Many of these victims and witnesses bear the permanent physical and psychological scars of Mr. Landzo’s cruelty and their experiences within the prison-camp. For example, Novica Dordic, stated that:
if I had another 70 lives, regular human lives, I don’t think that I would be able to forget this, not all of it. I’m forgetting details, but the essence of everything that I went through, that I experienced, is there to stay. It may just be pushed back into the subconscious. It may not show up in regular life but the essence is essence. I was humiliated there in every respect, as a human being, as a person and physically and health wise, and I can’t forget that. 1112
In particular, there can be no doubt as to the savagery with which Mr. Landzo beat to death Scepo Gotovac, an elderly and defenceless man, and his potential for cruelty, exhibited by the pinning of a metal badge to Mr. Gotovac’s head in addition to his beating. The Trial Chamber has also heard testimony that Mr. Landzo continued in his beating of Mr. Gotovac, impervious to the pleas for mercy of the victim.1113 This is also the case with the killing of Simo Jovanovic, who was heard to cry "Please don’t do it brothers" while being beaten to death outside Hangar 6,1114 a murder for which Mr. Landzo has been found to be responsible. Similarly, his sudden attack on Bosko Somoukovic was sustained and ferocious, admittedly motivated by vengeful desires and serious enough to result in death shortly thereafter. The Trial Chamber has also heard evidence that Mr. Landzo threatened the detainees with violence should any of them attempt to come to the assistance of those who he singled out for particular mistreatment.1115
1274. Furthermore, many witnesses testified before the Trial Chamber about Mr. Landzo’s apparent preference for inflicting serious burns upon detainees in the prison-camp. It is the view of this Trial Chamber that such a method of mistreatment exhibits particularly sadistic tendencies and clearly requires premeditation. Mr. Landzo has, indeed, been found guilty of torture for such burning incidents, particularly in relation to Momir Kuljanin, Spasoje Miljevic, Mirko Dordic, as well as of wilfully causing great suffering or serious injury to body or health to, and cruel treatment of, Nedeljko Draganic.
1275. The Trial Chamber has further made factual findings that Esad Landzo tied a burning fuse-cord around Vukasin Mrkajic, forced two brothers to commit fellatio with each other and ordered a father and son to beat one another. While Mr. Landzo was not charged directly with these offences and thus is not sentenced in relation to them, the Trial Chamber again notes the heinous nature of the acts involved and the depravity of mind necessary to conceive of and inflict such forms of suffering.
1276. Mr. Landzo has also been found guilty of directly contributing to the atmosphere of terror which existed in the Celebici prison-camp throughout the period relevant to the Indictment, by his constant kicking, beating and mistreatment of the detainees. That Mr. Landzo deliberately sought to instil such terror and apprehension in the detainees is evident from his threatening words and behaviour towards them. For example, Witness N testified during the trial that he was once taken out of Hangar 6 by Mr. Landzo and made to kneel down while Mr. Landzo pressed a gun against his neck in mock execution.1116 It has been made abundantly clear from such testimony that all of the detainees regarded Mr. Landzo with great fear and trepidation that he would turn his attention on them, with horrific consequences.1117
1277. The Defence for Mr. Landzo, in its submissions on sentencing, makes reference to certain mitigating circumstances which it believes to be pertinent. These include, the extreme youth of Mr. Landzo at the time relevant to the Indictment, his family background, his character, his admissions of guilt and feelings of remorse, his attempt to co-operate with the Prosecution and his voluntary surrender to the authorities of Bosnia and Herzegovina.1118 The Defence further suggests that no sentence should be imposed for any of the counts of which Mr. Landzo might be found guilty, that would exceed five years and that all such sentences should be set to run concurrently. The Defence argues that Mr. Landzo would thus be enabled to remould his future in accordance with his newly reformed and responsible personality.
1278. The Prosecution concedes that the youth and mental state of Mr. Landzo at the time of commission of the offences should be taken into account in deciding upon his appropriate sentence.1119However, it further argues that his personality problems are such that he represents a continuing danger to society. The Prosecution also disputes the claim that Mr. Landzo had offered to co-operate with it and contends that the Defence for Mr. Landzo approached it, in September 1997, with the proposal that he would plead guilty in the event that it would agree to a maximum sentence of five years imprisonment. It further states that, in view of the severity of the crimes committed by Mr. Landzo, the Prosecution did not accept this proposal. 1120
1279.The Trial Chamber does not consider Mr. Landzo’s belated partial admissions of guilt, or any expressions of remorse, to significantly mitigate, in the circumstances, the crimes committed by him. Prior to his appearance before the Trial Chamber as his own witness, Mr. Landzo did not, in any of his interviews or written statements, admit his guilt. This remained the case despite the fact that Mr. Landzo watched and listened to many victims of his mistreatment as they testified in the courtroom and were subjected to gruelling cross-examination on his behalf. Mr. Landzo did address a written statement to the Trial Chamber after the end of his trial, stating that he was sorry for his conduct in the Celebici prison-camp and that he wished to express his regrets to his victims and their families.1121 Such expression of remorse would have been more appropriately made in open court, with these victims and witnesses present, and thus this ostensible, belated contrition seems to merely have been an attempt to seek concession in the matter of sentence. In addition, the Trial Chamber does not consider any attempt at plea bargaining to be a mitigating factor in the matter of sentencing.
1280. The Defence for Mr. Landzo also raises once again the argument that he was merely an ordinary soldier and, as such, should not be subject to the jurisdiction of the International Tribunal, which is limited to persons in positions of superior authority. This argument has been considered and dismissed above and the Trial Chamber finds no reason to revisit it in detail. It does, however, note that the statement issued in May of this year (1998) by the Tribunal Prosecutor concerning the withdrawal of charges against several indicted persons, quoted by the Defence,1122 indicates that an exception to the new policy of maintaining the investigation and indictment only of persons in positions of some military or political authority, is made for those responsible for exceptionally brutal or otherwise extremely serious offences. From the facts established and the findings of guilt made in the present case, the conduct of Esad Landzo would appear to fall within this exception.
1281. The Defence further contends that Mr. Landzo committed the offences established against him under the orders of his superiors. This assertion has been considered and rejected in the examination of the evidence under each of the counts of the Indictment relating to him. Even were it to be accepted that Mr. Landzo was, on occasion, ordered to kill or mistreat prisoners within the prison-camp, the evidence does not indicate that he performed these tasks with reluctance. To the contrary and as discussed above, the nature of his acts strongly indicates that he took some perverse pleasure in the infliction of great pain and humiliation.
1282. It is, moreover, incorrect to say that Mr. Landzo voluntarily surrendered to the International Tribunal. According to his own statement, he was first called to Sarajevo by the Bosnian authorities and he was detained there pending his transfer to The Hague. Upon completion of the relevant procedure by the Supreme Court of Bosnia and Herzegovina, Mr. Landzo was transferred to the Tribunal on 13 June 1996.
1283. Nonetheless, there are certain features of Mr. Landzo’s case that must be taken into account in his favour when deciding upon the measure of sentence to be imposed upon him. First, there is his relative youth – he was only nineteen years of age at the time of commission of the offences – and his poor family background. Related to these considerations is his immature and fragile personality at that time, which is undisputed between the parties and has been testified to by several expert witnesses. While the special defence of diminished responsibility, raised by the Defence, has been rejected by the Trial Chamber above, the Trial Chamber may nonetheless take note of the evidence presented by the numerous mental health experts, which collectively reveals a picture of Mr. Landzo’s personality traits that contributes to our consideration of appropriate sentence. Secondly, he had no proper military training or instruction in how to comport himself in relation to detainees such as those in the Celebici prison-camp. Thirdly, the harsh environment of the armed conflict as a whole, and the events in the Konjic municipality in particular, must also be considered.
1284. This armed conflict created an environment clearly not of Mr. Landzo’s own choosing. His home town of Konjic was shelled over a continued period of time in 1992, resulting in an atmosphere of constant fear of injury or death for himself and his family, and it was also under a blockade such that living conditions became very difficult. Many displaced persons were arriving in the town, having been expelled from their own homes in other parts of Bosnia and Herzegovina, and the stories of their mistreatment, and that of the Bosnian Muslim population in general, at the hands of the Bosnian Serbs and Croats, were undoubtedly circulating. Additionally, among the casualties of the conflict were persons close to Mr. Landzo. Given that the detainees in the Celebici prison-camp were Bosnian Serbs who had been arrested upon the execution of military operations by Bosnian government forces to break up pockets of resistance against the lawful authorities in the municipality, along with Mr. Landzo’s immature and impressionable state of mind, it is not surprising that he might identify these detainees with the enemy that had inflicted this suffering and hardship upon himself, his family and his fellow members of the population of Bosnia and Herzegovina.