Tribunal Criminal Tribunal for the Former Yugoslavia

Page 581

1 Thursday, 8 June 2000

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 10.01 a.m.

5 JUDGE HUNT: Call the case, please.

6 THE REGISTRAR: This is case IT-96-21-A, the

7 Prosecutor versus Delalic and others.

8 JUDGE HUNT: Now, first of all, in relation

9 to the number of people who were freed, if that's the

10 right word, by the Prosecutor's application, there is

11 nothing before us that there are any more than the

12 persons who are nominated in her press release. We

13 have no information before us that there were more than

14 the 14. I've checked right through the submissions.

15 There's nothing in there. And this figure of 16 seems

16 to be something which is either an error or completely

17 unsubstantiated.

18 MR. STAKER: Your Honour, I can explain

19 that. I think the misunderstanding arises from the

20 fact that there were 11 names on the Omarska indictment

21 that were withdrawn and 5 in the Keraterm indictment,

22 so 11 and 5 makes 16. But in fact there were two

23 accused whose names were on both indictments, but they

24 were counted twice.

25 JUDGE HUNT: Thank you very much indeed.

Page 582

1 MR. STAKER: If I could just mention also,

2 because the question, I think, was asked by Your Honour

3 Judge Riad yesterday whether there were any other

4 indictments withdrawn against accused, particularly in

5 relation to after arrest.

6 I am informed that an indictment was

7 withdrawn against one accused in the Kupreskic case --

8 that was Marinko Katava -- which was after arrest, but

9 the justification for the withdrawal in that case was

10 not the same as that in relation to the other 14

11 accused. That related to the sufficiency of the

12 evidence.

13 And one other question that I think Your

14 Honour Judge Riad asked was the number of Bosnian

15 Muslims who were being indicted by the Tribunal

16 overall. Again, I've been informed that at this stage

17 the only Bosnian Muslims who have been indicted

18 publicly by this Tribunal are those in the present case.

19 JUDGE HUNT: Thank you very much.

20 MR. STAKER: Thank you, Your Honour.

21 JUDGE HUNT: Now, before we resume, we have

22 become painfully aware of the fact that a number of

23 counsel on both sides of the room have been merely

24 reading out the submissions which they have already

25 made in writing. I think we have tried to make it

Page 583

1 clear at all times: You must proceed upon the

2 assumption that we have become familiar with those

3 written submissions, and we do not need them being read

4 out again.

5 Now, Ms. Sinatra, we've come to the

6 diminished responsibility ground.

7 MS. SINATRA: Yes. Good morning, Your

8 Honours. Well, then I may have to give a very

9 truncated version of what I was going to present in

10 argument this morning.

11 JUDGE HUNT: Please do.

12 MS. SINATRA: Yes. I understand your

13 concerns. I don't know if I do repeat myself. I did

14 want to bring to the Court's attention several matters

15 that caused the confusion in this case, and therefore

16 it would be citing certain paragraphs in the judgement

17 itself. And for the sake of clarity and expediency, I

18 was going to have them placed on the computer monitor

19 as I make my comment.

20 JUDGE HUNT: Well, not if it's going to take

21 extra time. We do have access to the written documents

22 and we don't want them read out. Now, that can't be

23 clearer than that, Ms. Sinatra. If I may say so,

24 checking your written submissions yesterday, I do not

25 think you added anything until you were asked some

Page 584

1 questions. Now, please just take us to what you want

2 to add to those written submissions.

3 MS. SINATRA: Yes, Your Honour. I do find

4 that it's unfortunate that on Thursday morning we have

5 come to this procedural change, but --

6 JUDGE HUNT: It's not a procedural change.

7 I'm sorry to interrupt. It was announced at the very

8 beginning that you were not simply to read out your

9 written submissions.

10 MS. SINATRA: Yes, Your Honour. I do

11 remember that. Correct.

12 Well, then I have basically three issues to

13 deal with, and I do want to thank Mr. Staker, who

14 provided an article yesterday, which I'm sure he will

15 provide to the Appeals Chamber in a few moments, that

16 is from the most current issue of the American Journal

17 of International Law. And basically when you see this

18 article, you will see it asks the same questions that

19 appellant Landzo was asking of this Court.

20 I think if we looked at it as a flowchart, we

21 have to see that there was fundamental error in the

22 fact that Mr. Landzo was forced to present an

23 affirmative defence, not knowing the parameters of that

24 defence.

25 When a game is played for mortal stakes like

Page 585

1 this one is, the rules of the game have to be known to

2 both parties before you engage in the game. That way,

3 you have written objective standards that can be

4 applied before the trial begins. That means that the

5 lawyers will know their burden of proof. That means as

6 they prepare that the litigants will know what the

7 offensive issues are and what the defensive issues are,

8 but more importantly, the Judges can take comfort in

9 making rulings that are based upon objective

10 standards.

11 Now, at the Status Conference last month,

12 Judge Hunt asked me a relevant question that will be

13 rampant through our discussions today. I believe, when

14 you are in England or Australia or anywhere that

15 accepts the definition of diminished responsibility

16 based on the Homicide Act of 1957, it results in a

17 conviction of manslaughter if it's proven. Isn't that

18 really still mitigation of punishment?

19 Well, that all depends whether you have a

20 definition to work from. This Tribunal -- and we agree

21 with the Trial Court's definition in wilful killing and

22 murder. Article 2 requires that the mental state, not

23 only the actus rea but the mens rea of the offence be

24 proven, and the mental state is intentional. And

25 Article 3, murder, has also said that the mental state

Page 586

1 of the accused of intent must be proven by the

2 Prosecution. So when you come to the mental states,

3 this directly is related to the mental state of the

4 accused.

5 There exists in most jurisdictions the

6 premise of insanity, which goes to total acquittal,

7 but -- and I want it clear that Mr. Landzo has never

8 made an assertion of insanity, but if the state of mind

9 is diminished, then the definition for the defence must

10 have some threshold that it has to prove, some

11 threshold it must meet where it would go from acquittal

12 to mitigation of punishment. So that would go from

13 utter calculated specific intent moving through wilful

14 and then on to stark insanity at the other end.

15 The problem is, we had no definition. We

16 didn't know what the threshold was. We didn't know

17 what proof was necessary to reach that threshold.

18 If an accused's mind is considered diminished

19 enough, then there can be no culpable mental state.

20 That means that it would be acquittal. If the

21 diminished responsibility is slight, then it would go

22 to mitigation of punishment. If the culpability is

23 diminished enough then the crime cannot be said to be

24 wilful.

25 Now, if you find that he had a diminished

Page 587

1 state of mind, you have to decide what that threshold

2 point is. And that's what we never knew during the

3 trial of this case. However, appellant is prepared to

4 accept the explanation of the Trial Chamber in

5 paragraph 1164. In paragraph 1164, the Trial Chamber

6 stated that Sub-rule 67 would indeed appear a

7 complete -- to suggest a complete defence since the

8 words are "without qualification or limitation." In

9 fact, the article that Mr. Staker will be offering to

10 you in a few moments also says that the ICC Statute,

11 Article 31(i) is also without limitation also.

12 Therefore, it suggests a complete defence.

13 Yes, Your Honour.

14 JUDGE HUNT: That provision of the ICC

15 Statute has got nothing to do with diminished

16 responsibility, it talks about the destruction, not the

17 reduction.

18 MS. SINATRA: It does. The word is used

19 "destroys."

20 JUDGE HUNT: So that it is akin to insanity.

21 MS. SINATRA: Well, Your Honour, I would also

22 add that if you go further down, "destroys the personal

23 capacity to appreciate the up lawful or capacity to

24 control his or her conduct."

25 You are correct it does seem to lean more

Page 588

1 towards an insanity defence, and I believe that the

2 word "destroys" substituted for the word "substantial

3 incapacity" makes a big difference, but it does offer a

4 complete defence. And the argument is that since Rule

5 67 doesn't offer any limitation there, that it could

6 offer a complete defence.

7 I'm not saying that this Court should come up

8 with the decision that it will be a complete defence in

9 the future or not. What our argument is is that a

10 fundamental error was committed because we were forced

11 to present an affirmative defence without the

12 parameters of what that might be. Of course, the only

13 place in our Statute that it's mentioned is Rule 67.

14 JUDGE HUNT: That's the other question I have

15 to ask you. You assert in your submissions that the

16 Statute of the ICTY provides that if the special

17 defence is successful, it affects the issue of guilt or

18 innocence. Where in the Statute does it say that?

19 MS. SINATRA: Well, Your Honour, as an

20 advocate and since there is no definition, I guess we

21 can draw from a conclusion, since there are no

22 limitations on it, that it could be a complete defence

23 or it could be mitigation of punishment, but that begs

24 the issue that there is no definition and it's up to

25 this Court to give us some definition.

Page 589

1 Even if you give us a definition right now,

2 the fundamental error was created at trial because we

3 were forced to present the defence without any

4 guidance.

5 Unless this Court chooses to believe that

6 some hints given by the arguments in the courtroom were

7 the only thing that Judge Karibi-Whyte discussed was

8 the Homicide Act of 1957, there was no written order,

9 no decision, no rule that we could rely on as we were

10 forced to present our affirmative defence.

11 We have a saying back home that when you are

12 not given the parameters like that, you throw

13 everything against the wall and see what sticks. I

14 hate to say we were forced to throw everything against

15 the wall and see if something stuck at this point, and

16 that's not the way the rights of the accused are

17 supported and justice is seen in a court such as this.

18 Did I answer your question, Judge Hunt?

19 JUDGE HUNT: Well, I understand the argument

20 you're putting. You will, of course, at some stage,

21 come to deal with the issue as to whether this is a

22 defence at all, won't you, rather than matter of

23 mitigation?

24 MS. SINATRA: Well, Your Honour, the Court

25 treated it as a defence.

Page 590

1 JUDGE HUNT: No. We have to deal with this

2 here in this Chamber, and the point has been taken that

3 it is not a defence, it is a matter of mitigation

4 only. Now, that's a matter which, as I pointed out to

5 you at the previous conference, you don't deal with in

6 your written submissions. That's a matter which we

7 would appreciate some assistance from you in this oral

8 hearing.

9 MS. SINATRA: Well, Your Honour, at this

10 point in the appellate process, I don't believe that

11 the provisions for nullem crimen sine lege our ex post

12 facto application would make a difference as to what

13 definition you come up with right now. Rule 67

14 provided that it was a defence. The Court required

15 that I filed notice of my affirmative defence. I filed

16 notice in a timely manner. They gave us the order that

17 the burden of proof switches to the defendant at that

18 time. They gave me the standard of proof which was

19 beyond -- I mean, a preponderance of the probabilities

20 or preponderance of the evidence, in our country, and

21 we proceeded on, based on the fact that the Court

22 recognised it as an affirmative defence with the idea

23 that it was an affirmative defence.

24 Now, if this Court decides today that it's

25 not an affirmative defence, that is a retroactive

Page 591

1 application of what was accepted in the Trial Chamber.

2 JUDGE HUNT: It's not a retroactive change.

3 If the Trial Chamber was wrong in accepting your

4 argument that it was a defence, then it was never a

5 defence.

6 You see, the problem arises as to the powers

7 of the Judges in accepting Rules of Procedure and

8 Evidence to make a provision which provides an

9 affirmative defence.

10 MS. SINATRA: Yes.

11 JUDGE HUNT: And that's been dealt with by

12 this Chamber, that they do not have that power, or they

13 don't have the power to make provisions for an

14 affirmative offence in the Rules.

15 MS. SINATRA: Your Honour, wouldn't the

16 appropriate way to have handled the situation, instead

17 of treating it as an affirmative offence all the way

18 through the trial, listening to months of expert

19 witness testimony on the defence of diminished mental

20 responsibility and the case in chief, not at the

21 sentencing hearing, wouldn't it have been that when I

22 raised the issue in 1997, that a plenary session should

23 have been held and some definition should have been

24 decided at that point, not after the fact?

25 JUDGE HUNT: The plenary has no power to

Page 592

1 define those things. Now, let's just look at it. If

2 there was never a defence -- after all, the Rule, the

3 same Rule talks about the defence of alibi, and you

4 don't suggest that's a defence, do you?

5 MS. SINATRA: It's something that -- no, it's

6 not.

7 JUDGE HUNT: It's a very loose use of the

8 term "defence," which all criminal lawyers

9 unfortunately use. It is nevertheless not a defence,

10 is it, the question of alibi?

11 MS. SINATRA: Alibi was not mentioned

12 in "b."

13 JUDGE HUNT: No, no. Look, please. The same

14 Rule refers to a defence of alibi, and that's not a

15 defence, is it?

16 MS. SINATRA: No. That's an element that the

17 Prosecution has to prove.

18 JUDGE HUNT: That's right.

19 MS. SINATRA: But that is not in "b." "B"

20 suggests -- tells us that we have an affirmative

21 defence to rely upon. "A" talks about alibi, and it's

22 talked about in the context of the notice that is

23 necessary. So when it has "a" as alibi and "b" as

24 affirmative defences, we're allowed to rely on what the

25 Rule says. And we relied upon that, and nobody told us

Page 593

1 differently during the whole procedure of the trial.

2 Now, if it were something strictly in

3 mitigation of punishment, the Court should have told us

4 before we presented all our evidence in our case in

5 chief. We would have put it on in sentencing.

6 May I proceed, Your Honour?

7 JUDGE HUNT: Please.

8 MS. SINATRA: Okay. Thank you.

9 What happened in our courtroom, in our

10 Chamber, was that everyone was confused. And confusion

11 is very evident from the judgement itself.

12 And first of all, in paragraph 1159, the

13 Trial Chamber said that:

14 "The defence of Esad Landzo has criticised

15 the Trial Chamber for failure to lay down the legal

16 test to be applied. The defence submits that it was

17 forced to present its evidence of a special defence

18 without understanding the burden of proof."

19 Well, that's not true. On June 18th, 1998,

20 the Court gave us, in an order, the burden of proof.

21 It also said that the burden switched to the

22 defendant.

23 And in the next paragraph, in 1160, there's

24 further confusion as to why the Trial Chamber didn't

25 even understand what it was we were asking for. In

Page 594

1 paragraph 1160, what the Trial Chamber has omitted to

2 do, it says, and we believe should not do, is to

3 outline the evidence. We were never asking the Trial

4 Chamber to tell us what evidence we had to prove.

5 JUDGE HUNT: Ms. Sinatra, all of this is in

6 your written submission, very clearly and repetitively.

7 MS. SINATRA: I'm sorry that the brief was

8 written in a repetitive manner and I'll try to go

9 forward. I will reurge the Appeals Chamber to look at

10 the confusion. I don't believe that this paragraph is

11 in the brief where the Trial Chamber did come to a

12 conclusion. And when the Trial Chamber came to a

13 conclusion that the affirmative defence of diminished

14 mental responsibility had not been met, we have a right

15 to know what criteria, what legal parameters, they used

16 to come up with their findings of fact, their findings

17 of law.

18 Basically, what has happened is we have, and

19 I'm just talking about the error in law, because I

20 don't even think we need to address the errors in fact

21 if this Court would recognise that an error in law was

22 committed.

23 In the judgement, in III(h), which is

24 Construction of Criminal Statutes, we merely accept and

25 urge you to reread and apply paragraphs 402 through

Page 595

1 413, which talk about the fundamental principles of

2 certainty and how the Court believes that that is

3 something that should be evident throughout the

4 creation and implementation of this Tribunal. And the

5 principles, of course, that we rely on, and that the

6 Trial Chamber relied on but didn't apply, are the

7 principles of nullem crimen sine lege and ex post facto

8 law and the requirement of specificity and lack of

9 ambiguity in criminal statutes.

10 The refusal to tell appellant the legal

11 parameters of his defence, preferring to construct them

12 after trial, was an abdication of the Trial Chamber's

13 obligation to perform its judicial duties.

14 Now, I know this is -- just in case you find

15 that there was no fundamental error, Judge Hunt has

16 asked: Well, what law is it that you think we should

17 apply, and how is it --

18 There is an article in this journal that

19 Mr. Staker is going to put before you that asks the

20 same questions. There are many issues that can't make

21 sense. If you accept the Homicide Act of England from

22 1957, of course we're faced with the conundrum here in

23 this Appellate Chamber. We have no lesser included

24 offences. So what does it mean? I don't know. What

25 I'm asking this Court is to tell us what it means for

Page 596

1 the future defences that might be raised.

2 I know the Court is well aware of the

3 Homicide Act of 1957, so I'm not going to revisit it,

4 but it does seem the most widely accepted version of

5 the law of diminished mental responsibility. The

6 Prosecution has just handed me some laws from other

7 countries on which they are going to rely. And we have

8 no objections to that. Really and truly, whatever this

9 Court comes up with as far as the affirmative defence

10 of diminished mental responsibility is not something

11 that we're going to argue about. Our argument, and our

12 error, and our violation of Mr. Landzo's rights, lies

13 in the fact that we were not given the definition

14 before we were forced to present the evidence.

15 Now, I'm going to go to the factual errors in

16 the case, and of course we know that the Tadic

17 reasonableness test, that no reasonable trier of fact

18 could have come to this conclusion. And if the Court

19 would just indulge me for 10 minutes, I have a video

20 segment that highlights the conclusions of each expert

21 witness, if you would allow me to play the video

22 segment.

23 JUDGE HUNT: The problem with this,

24 Ms. Sinatra, is this: No expert's opinion is relevant

25 unless the factual basis upon which it is based has

Page 597

1 been established. That's a matter of fundamental law.

2 MS. SINATRA: Thank you, Your Honour.

3 JUDGE HUNT: And the Trial Chamber held that

4 they were not satisfied by you that that factual basis

5 had been established.

6 MS. SINATRA: Upon what parameters?

7 JUDGE HUNT: They said that the basis upon

8 which they acted was not accepted. They did not accept

9 your client's evidence. Now, if that's so, there is no

10 question about choosing between experts. The Trial

11 Chamber never said they would accept the Prosecution's

12 expert in preference to your experts; they simply said

13 that your experts' opinions were based upon certain

14 facts and they held that you had not satisfied them

15 that those facts were true.

16 MS. SINATRA: I do understand your question,

17 Your Honour, and I would like to bring to the Court's

18 attention that that is an erroneous holding by the

19 Trial Chamber, because each one of these expert

20 witnesses said that they didn't rely on the truth of

21 Mr. Landzo's statements, that they were experts trained

22 in the area to spot something called malingering.

23 Malingering is something that these people

24 look for. Malingering is something they can identify

25 whether they're telling the truth or not. That's why

Page 598

1 the psychological testing was done, because the

2 psychological testing goes over all ethnic boundaries,

3 all possibilities of telling an untruth, and is able to

4 come up with a diagnosis whether the defendant is

5 telling the truth or not.

6 JUDGE HUNT: May I suggest that you apply

7 your submissions to that issue, because what the

8 experts may have said is of no relevance unless the

9 factual basis has been established.

10 MS. SINATRA: Your Honour, it goes back to

11 the fundamental error in that how could a factual basis

12 be established when we didn't know what it was we had

13 to prove?

14 JUDGE HUNT: We've heard you many times say

15 that. Let's proceed.

16 MS. SINATRA: So you don't want to see the

17 video segment?

18 JUDGE HUNT: I don't see that it's going to

19 assist us.

20 MS. SINATRA: Okay.

21 JUDGE BENNOUNA: [Interpretation] Ms. Sinatra,

22 on this particular issue you are telling us that you

23 did not know what was the test applied in terms of what

24 the ICC called motives for which there can be

25 exoneration of mental responsibility. But you well

Page 599

1 know that before an International Tribunal you have

2 what is called a general principle of law, i.e.,

3 principles which are common to a certain number of

4 legal systems, principles which are drawn from the

5 Judges, from the analysis that they make of major legal

6 systems that are in vigour in the world, and it is also

7 the way the redacters of the ICC Statute have gone

8 about drafting the Statute.

9 These general principles of law, surely you

10 must have known about them before making your

11 submissions or presenting your evidence. You are not

12 operating in a legal void. We are not, as an

13 International Tribunal, operating in a legal void.

14 That is the situation we are in.

15 MS. SINATRA: Your Honour, that is absolutely

16 correct. We are not operating in a legal void. And

17 before we started the defence case, I presented the

18 statutes on diminished mental responsibility from many

19 jurisdictions including the former Yugoslavia, Italy,

20 Barbados, from continental-law systems, and from

21 common-law systems, asking the Court to come up with

22 what definition they wanted us to apply, what elements

23 we had to prove, and drawing from the international

24 law, there is nothing settled on that.

25 It does seem -- if I were to answer

Page 600

1 Judge Hunt's question, it does seem that in most

2 jurisdictions, unless that threshold is met, to be

3 mitigation of punishment. But they didn't give us any

4 guidance. They didn't tell us which law to use at that

5 point. So I had to just throw everything out there and

6 not know where it was going to land or how it was going

7 to be sorted out.

8 Does that answer your question, Your Honour?

9 JUDGE BENNOUNA: [Interpretation] Yes, you

10 do. Thank you, madam.

11 MS. SINATRA: Thank you.

12 Well, just addressing the issue that

13 Judge Hunt has told me to narrow it down to, the fact

14 that the Trial Chamber said --

15 JUDGE HUNT: It was a suggestion,

16 Ms. Sinatra.

17 MS. SINATRA: I appreciate your suggestion,

18 and I will take it, Your Honour.

19 The fact that the Trial Chamber said there

20 was not enough evidence offered to meet whatever

21 threshold that was, they were not satisfied that

22 whatever conclusions the expert witnesses came up with

23 that it would rise to the level of diminished mental

24 responsibility because they did not believe the

25 defendant.

Page 601

1 I would like for you to revisit the testimony

2 of Dr. Marco Lagazzi from Genoa Italy; from

3 Dr. Alfredo Verde from Italy; from Dr. Miroslav Goreta

4 for Zagreb, Croatia; from Dr. Edward Grippon from the

5 United States; and from Dr. A.M.H. Van Leeuwen, the

6 Dutch expert. Three of these experts were hired by the

7 Court and the Prosecution. They all came to the same

8 conclusion.

9 They all explained how it didn't really --

10 matter if they knew the truth of what happened in the

11 Celebici prison camp in 1992, then of course they could

12 be more certain about their diagnosis, but the standard

13 that they apply is forensic psychiatric probability.

14 And when you use the test of forensic psychiatric

15 probability, and related the condition that they

16 found existed in Mr. Landzo back to 1992, they all came

17 up with the conclusion, except Mr. Sparr, that he was

18 suffering from diminished mental responsibility at the

19 camp in the summer of 1992, each one of them.

20 Now, I know there's a lot of questions. This

21 article mentioned they all came up with a separate

22 diagnosis; they disagreed. That's not true, and I

23 would like to reurge the Trial Chamber to take a look

24 at Defence Exhibit D82/4.

25 D82/4 is a chart. There are several

Page 602

1 different international standards for determining

2 diseases of the mind. The American standard is DSM-IV,

3 which almost every one of the psychiatrists from

4 whatever country they came from applied and used and

5 were familiar with. But the more accepted standard now

6 is put out by the World Health Organisation. It's an

7 international standard to be applied, and if this Court

8 does apply some standard in the future, I suggest you

9 use the ICD-X, which is the international standard.

10 These standards are all provided to overlook

11 ethnic differences, cultural differences in the

12 countries, and they -- what happened was different

13 psychiatrists came up with different diagnoses, but if

14 you look at D82/4, they're all on the same axis. They

15 all say the same thing, they just use a slightly

16 different terminology. They're the same personality

17 disorders.

18 Now, I expected that one of the questions the

19 Court would ask is: Why do you think a mental disorder

20 like this, a personality/mental disorder would amount

21 to abnormality of the mind for whatever definition do

22 you do ultimately accept.

23 This is not merely a personality disorder.

24 It was a personality disorder diagnosed by all of the

25 experts, which the Prosecution's expert called a

Page 603

1 personality trait, overlapped with PTSD, which is an

2 adjustment disorder. Now, all three of the experts

3 said he had PTSD. Dr. Van Leeuwen said it was an

4 adjustment disorder, Dr. Landy Sparr for the

5 Prosecution called it an adjustment disorder. The only

6 difference between PTSD and an adjustment disorder is

7 how long it lasts. They're on the same axis.

8 It's really important for this Court to know

9 that even though the Court didn't accept the

10 psychiatric evidence, they were wrong in not accepting

11 it because they all said the same thing. They just had

12 different linguistic backgrounds to draw from, and when

13 they were saying it, it amounted to an abnormality of

14 the mind as they described it, and the only parameters

15 they had to go by, which each expert witness I used who

16 were forensic psychiatrists.

17 Which means that they would first determine

18 his mental capacity, and then they would relate it to

19 mental responsibility in the area of criminal law, and

20 they came to the conclusion that he had diminished

21 mental responsibility based on the law that I gave

22 them, which was the only one that I had a hint from the

23 Trial Chamber was the Homicide Act of 1957.

24 If I might have a moment. I do believe that

25 the Trial Chamber improperly concluded that they

Page 604

1 shouldn't accept the evidence of the experts based on

2 Mr. Landzo not telling the truth. If you look back at

3 the record, each one of the experts said that they are

4 trained, able to spot malingering. The psychological

5 testing can go past that. It's never even taken into

6 consideration because the questions and the tests are

7 designed to overlook not telling the truth. And I

8 believe that the appellant did prove it was more likely

9 than not that he was in a diminished state of mental

10 responsibility in 1992.

11 But putting aside the factual errors, as

12 Mr. Ackerman said, the post World War II trials were

13 and are criticised for fashioning the law to fit the

14 facts. Don't allow this Trial Chamber to do that.

15 Do we have any questions, any more

16 questions?

17 JUDGE HUNT: No, not at this stage. Have you

18 concluded on both issues, both grounds of appeal?

19 MS. SINATRA: Yes. I addressed the --

20 JUDGE HUNT: I'm sorry, I do have one

21 question.

22 MS. SINATRA: The legal test and the factual

23 test.

24 JUDGE HUNT: Thank you. In your respond at

25 paragraph 5.32, you take the Prosecution to task for

Page 605

1 relying upon a -- some testimony that your client

2 enjoyed performing some of the acts with which he is

3 charged and you say that that is false.

4 MS. SINATRA: Well, Your Honour, I retract

5 that, because I don't know whether it was false or

6 not.

7 JUDGE HUNT: I was going to ask you, because

8 the doctor said that that is what your client said to

9 him.

10 MS. SINATRA: And if I did say that in the

11 response brief, I retract it at this moment. I don't

12 know what he told the psychiatrist; I was not there.

13 If the psychiatrist said he said it, then it must be

14 so.

15 JUDGE HUNT: Well, it was open to the Trial

16 Chamber to accept it, was it not?

17 MS. SINATRA: Yes, it was.

18 JUDGE HUNT: So that your suggestion that

19 there may have been an intentional violation of the

20 canon of ethics on the part of the Prosecution is

21 withdrawn, is it?

22 MS. SINATRA: I'm sorry, I didn't understand

23 that, Your Honour.

24 JUDGE HUNT: You just read paragraph 5.32 of

25 your reply.

Page 606

1 MS. SINATRA: Okay. I don't have it in my

2 possession right at this moment.

3 JUDGE HUNT: Very well then. Well, thank you

4 very much indeed.

5 Mr. Staker. And I repeat what I said earlier

6 about reading out what's already in your written

7 submissions, of which you were also very guilty.

8 MR. STAKER: I take that on board, Your

9 Honour.

10 May it please the Chamber, dealing first with

11 the ground of appeal based on the failure to define the

12 defence of diminished mental responsibility in

13 advance. Our response is simply that it's not the

14 practice of courts to give advisory opinions on the

15 substance of the law before a trial on an issue

16 commences, and Ms. Sinatra has not cited any example of

17 a case where that may have occurred.

18 We don't rule out the possibility that it may

19 be within the discretion of the Trial Chamber to adopt

20 that kind of procedure if it so chose, but that would

21 be a matter within the discretion of the Trial Chamber,

22 and for the Appeals Chamber to intervene on appeal, the

23 standard of review would be an abuse of discretion.

24 Given that it's not the practice of courts to

25 adopt such a procedure, we submit that there would have

Page 607

1 to be something fairly exceptional that would justify

2 appellate intervention where that procedure is not

3 adopted.

4 We submit that there has been no abuse of

5 discretion shown here. The mere fact that there is

6 uncertainty in the law doesn't render it unjust not to

7 adopt that procedure. It's probably quite normal that

8 trial courts want to wait until the evidence is in so

9 that the legal issues can be analysed in the light of

10 the facts of the case rather than in the abstract, and

11 the Trial Chamber couldn't provide certainty in the law

12 in any event, because whatever it decided may be

13 subject to amendment on appeal after the judgement is

14 given.

15 We also note in our brief our position that

16 the abuse of discretion standard of review requires a

17 showing of prejudice by the appellant, and we submit

18 that no prejudice has been shown here. The appellant

19 has identified no evidence or no legal argument that it

20 failed to put to the Court, to the Trial Chamber, on

21 the ground that it was not foreseeable that that might

22 be relevant. Ms. Sinatra, I think, conceded in her

23 submission that the Defence, in her words, threw

24 everything against the wall. I take that to mean that

25 all the evidence and all the arguments that could have

Page 608

1 been put were, in fact, put to the Trial Chamber, which

2 would have been taken into account by it in giving its

3 decision.

4 On that basis, we submit that this ground of

5 appeal should be rejected.

6 Unless there are questions, I would proceed

7 to the --

8 JUDGE HUNT: Please proceed.

9 MR. STAKER: The next ground of appeal, which

10 is the rejection of the defence of diminished mental

11 responsibility.

12 As Ms. Sinatra has indicated, in its

13 judgement, the Trial Chamber placed considerable

14 reliance on the English Homicide Act of 1957, and the

15 appellant's brief, no doubt because of this, also

16 places considerable reliance on that statute and on

17 similar statutes in other common-law jurisdictions.

18 As we point out in our response brief, there

19 are obvious difficulties relying on that statute. The

20 main one is that the statute is concerned with

21 circumstances in which a conviction for murder could be

22 reduced to one of manslaughter.

23 Now, there are many crimes within the

24 jurisdiction of this Tribunal that don't involve the

25 killing of the victim, or which don't necessarily

Page 609

1 involve the killing of a victim, and if that's the

2 case, it's difficult to see what the more general

3 relevance of the Homicide Act is in this Tribunal.

4 The second difficulty is that in this

5 Tribunal, there is no crime of manslaughter to which a

6 conviction for murder might otherwise be reduced, and

7 the appellant's brief, I think, freely admits this and

8 suggests that instead a Trial Chamber might reach a

9 verdict of not guilty by reason of diminished mental

10 capacity. Now, we submit that that is not an

11 application by analogy of the English Homicide Act, it

12 is a result that is entirely different.

13 Our submission is that when trying to define

14 what the position is in relation to mental incapacity,

15 the approach must start from first principles. The

16 first question has to be: What do the Statute and the

17 Rules say? The Statute says nothing. The only Rule

18 that mentions it is Rule 67(A)(ii)(b). That Rule

19 requires the Defence to notify the Prosecution of their

20 intent to offer any defence of diminished or lack of

21 mental responsibility. But that Rule is a procedural

22 provision relating to disclosure. The Rule

23 acknowledges that such defences exist but the Rule

24 doesn't create them and the Rule doesn't define them.

25 In the absence of any provision in the

Page 610

1 Statute and Rules, resort should then be had to general

2 principles of international law. However, there

3 appears to be a lack of international authorities on

4 the issue also. Even in the case of the two

5 international tribunals, the present case is the only

6 one to have pronounced upon it.

7 The next step would be to seek to identify

8 whether there are any general principles of law

9 recognised by civilised nations within the meaning of

10 Article 38(1)(c) of the Statute of the International

11 Court of Justice.

12 The Prosecution submits that in almost all

13 legal systems there is a recognition of some form of

14 defence or mitigation in cases of mental incapacity.

15 The existence of some such principles, or the need to

16 take account of that, might be regarded as a general

17 principle of law recognised by civilised nations, but

18 the precise content and scope of the rules vary from

19 legal system to legal system so that they can't be

20 defined by reference to general principles.

21 JUDGE HUNT: May I just stop you for a moment

22 there. You said mitigation in cases of mental

23 incapacity. Do you mean limited capacity?

24 MR. STAKER: Yes, Your Honour. Terminology

25 is perhaps a little bit difficult, given that the

Page 611

1 labels given to these things vary between different

2 legal systems. Ms. Sinatra has foreshadowed that I

3 will be providing a copy of a journal article to the

4 Bench in due course, and the author of that article in

5 fact uses the term "mental incapacity" as a kind of

6 umbrella term to include lack of mental responsibility

7 and diminished mental responsibility. Whether in the

8 particular legal system it is a complete defence to

9 criminal responsibility or whether it goes to

10 mitigation, it's simply an umbrella term to take

11 account of the fact that the mental illness or other

12 mental incapacities may be taken account of in the

13 criminal justice system in some manner. That, we say,

14 is a general principle of law recognised by civilised

15 nations. The specifics, we say, can't be defined by

16 reference to that.

17 We would say that in the absence of general

18 principles of law recognised by civilised nations that

19 can give us the answer, the Tribunal is left to define

20 these principles itself by reference to the basic aims

21 and objectives of criminal law and international

22 humanitarian law and general principles of justice. In

23 so doing, it can refer by analogy to national legal

24 systems, but in so doing it has to bear in mind the

25 unique character [sic] of international criminal

Page 612

1 proceedings. It's an expression that was used in the

2 Blaskic subpoena decision at paragraph 23.

3 In our response brief we seek to articulate a

4 definition of these principles which we submit this

5 approach would lead to. And I know that Your Honour

6 has requested me not to repeat material already in our

7 brief, but with your indulgence, because this is the

8 concise statement of what we say the position should

9 be, I would read out paragraph 12.16 of our response

10 brief. We say:

11 "Many provisions of the Statute, and indeed

12 the very name of this Tribunal, contain references to

13 the prosecution of persons 'responsible' for serious

14 violations of international humanitarian law. The

15 plain language of the Statute indicates an intention

16 that accused should be dealt with by the Tribunal

17 according to the degree of their responsibility.

18 "Provided that a person still has at least

19 some mental responsibility for such crimes, there is no

20 obvious reason why they should be excluded from the

21 definition of 'persons responsible for serious

22 violations of international humanitarian law.' The

23 degree of responsibility would, of course, be reflected

24 in any sentence imposed by the Tribunal. However,

25 diminished mental responsibility should afford a

Page 613

1 complete defence only where it can be concluded that

2 the accused's mental state was such that he or she

3 cannot be held legally responsible for his or her

4 actions at all."

5 And in saying that, I shouldn't talk of

6 diminished mental responsibility being a complete

7 defence; that should be lack of mental responsibility

8 being a complete defence.

9 Our brief then goes on to refer to provisions

10 of national jurisdictions which support this approach.

11 We refer to France, Germany, Italy, South Africa, and

12 the former Yugoslavia.

13 Now, as has been foreshadowed, since our

14 brief was filed, an article on this very issue has

15 appeared in the latest edition of the American Journal

16 of International Law. I provided copies to my

17 colleagues for the Defence and to the Chambers deputy,

18 and I would request that they now be distributed to the

19 Bench, together with copies of three extracts from

20 national legislation which I would ask to be

21 distributed at the same time.

22 The article is by a Peter Krug and it deals

23 with the defence of mental incapacity in the specific

24 context of international prosecutions, and indeed with

25 particular reference to the Trial Chamber's judgement

Page 614

1 in this case. Its basic thrust, we submit, is the same

2 as that in our response brief, but it provides some

3 additional details and arguments, and in our submission

4 it does much to clarify the issues.

5 I'd refer in particular now to page 328 of

6 that article. And on that page, in the first

7 paragraph, under main heading III, the author observes

8 that in municipal legal systems there are generally

9 three possible consequences that can flow from a

10 finding of "mental incapacity," which is used in

11 inverted commas for the reason that I indicated

12 earlier.

13 First, it can be a complete defence.

14 Secondly, it can be a partial defence in

15 which the defendant will be found guilty of a lesser

16 crime than that with which he or she was charged. The

17 article goes on to label this solution as the English

18 variant, and cites as the main example the English

19 Homicide Act, to which much reference has been made

20 already.

21 The third possibility is that it can provide

22 mitigation of an offender's punishment. And the

23 article goes on to label this solution as the

24 continental variant and cites as examples the law of

25 France, Germany, Italy, Japan, and the Russian

Page 615

1 Federation.

2 Now, the first of these three possible

3 consequences, the complete defence, is generally

4 applicable where the defendant has a complete lack of

5 mental responsibility. In cases of diminished mental

6 responsibility, usually one of the latter two

7 possibilities will apply. And as the Krug article says

8 on page 329, in the sentence beginning on the third

9 line of the first full paragraph, and I quote:

10 "Perhaps influenced by ongoing medical

11 recognition of nuances in the forms or degrees of

12 mental illness, as well as by the growing belief that

13 criminal sentencing should take into account the

14 individual circumstances of the offender, reduced

15 capacity is a response to the customary, all-or-nothing

16 approach that recognised only two classes of criminal

17 defendants: the sane and the insane."

18 To give examples of the so-called continental

19 variant, I've provided copies of the legislation from

20 three jurisdictions. I'd refer you first to the

21 English translation of Article 12 of the Criminal Code

22 of the SFRY. That's a translation that I found in the

23 Tribunal's library. I can't indicate precisely where it

24 came from. But you'll see that Article 12(1) there

25 provides a complete defence where the defendant, due to

Page 616

1 mental disease, et cetera, is incapable of

2 understanding the significance of his or her act or

3 unable to control his or her conduct.

4 Article 12(2) then provides for a reduced

5 sentence where the accused's ability to understand the

6 significance of his or her act, or to control his or

7 her conduct, is materially reduced.

8 To give a further example, I would refer then

9 to the French Criminal Code, Article 122-1. I only

10 have this in French, so I will read it out in French

11 and a translation will be provided. The first

12 paragraph of the article reads:

13 [Interpretation] "A person is not criminally

14 responsible if, at the time of the facts, that person

15 was suffering from mental troubles, mental disorder,

16 and neuropsychological disorder, and therefore was not

17 able to really understand and was not able to control

18 his or her acts."

19 The second paragraph then reads:

20 [Interpretation] "The person who, at the time

21 of the facts, was suffering from psychological or

22 neuropsychological disorders that had altered his or

23 her understanding or hampered his or her control over

24 the acts.

25 However, the Tribunal will take this into

Page 617

1 account when determining the sentence".

2 And just to give one further example, I've

3 provided a copy of an English translation of the German

4 Criminal Code. I have to point out, however, that this

5 English translation is from a book published in 1961.

6 The German Criminal Code seems to have undergone some

7 revision since then. The relevant provision in this

8 translation is Article 51. The present provision is

9 Articles 20 and 21 of the German Criminal Code, but I

10 think the content of it has not changed significantly.

11 Now, the approach in these national legal

12 provisions, in our submission, clearly reflects the

13 distinction made in Rule 67(a)(ii)(b) of our Rules of

14 Procedure and Evidence between the lack of mental

15 responsibility, on the one hand, and diminished mental

16 responsibility on the other.

17 Referring back to the Article that I provided

18 the Court, at pages 330 to 333, the author of the

19 article then goes on to comment on how the two

20 variants, the English variant and the continental

21 variant, can be adapted to international prosecutions.

22 The author points out the difficulty of applying the

23 English variant, and his comments support and add to

24 the submissions in our brief. The English variant may

25 be difficult to apply, as the relevant lesser included

Page 618

1 offences may be lacking in this Tribunal's

2 jurisdiction. As I've said, there is no crime of

3 manslaughter to which murder can be reduced.

4 The English variant also requires a relevant

5 lesser included offence to be identified for each

6 crime, which may be difficult to do, or at least

7 somewhat artificial. And, for instance, if crimes

8 against humanity and war crimes are equally serious, as

9 the Tadic appeal judgement has now held, it would be

10 impossible, for instance, to reduce a crime against

11 humanity to a war crime in cases of diminished mental

12 responsibility.

13 Furthermore, the whole purpose of the English

14 variant is that the crime for which the conviction is

15 entered will have a lower sentencing range than the

16 crime for which the accused will otherwise have been

17 convicted.

18 Now, this is unnecessary in the Tribunal if

19 we have no mandatory minimum sentences for any crime,

20 and the intended effect is difficult to achieve if all

21 of the crimes in the jurisdiction of the Tribunal have

22 the same maximum penalty of life imprisonment.

23 Now, in contrast to the English variant, the

24 Continental variant is much more flexible. The Trial

25 Chamber's discretion in sentencing enables them to

Page 619

1 tailor punishments to the crime in general and to take

2 diminished mental responsibility into account as a

3 mitigating factor in sentencing. It enables concerns

4 about fundamental fairness to be addressed without the

5 somewhat artificial constraints imposed by the English

6 variant.

7 And then a further issue, and on this I'd

8 refer to the article once more. It's referred to by

9 the author at pages 332 to 333. Here the author goes

10 on to consider what needs to be proved to establish the

11 existence of diminished mental responsibility if this

12 is going to be taken into account in sentencing. And

13 the author identifies three possibilities.

14 The first possibility is that the accused

15 must show both (1), the existence of a relevant mental

16 condition, meaning a mental disease or an abnormality

17 of mind; and (2), an impaired capacity to control or

18 appreciate one's actions. That's the normal

19 continental variant.

20 JUDGE HUNT: Plus also, I should imagine,

21 that it had some effect in relation to the offence

22 which was committed.

23 MR. STAKER: Yes, that would presumably be

24 so, Your Honour.

25 The second possibility identified by the

Page 620

1 author is a second, less restrictive option, which

2 would require the accused only to show the first

3 requirement, that is, the relevant mental condition,

4 meaning a mental condition in the legal sense, of

5 whatever the legal definition is of medical [sic]

6 condition.

7 And the third option identified by the author

8 is even less restrictive. It permits the Court to use

9 any evidence of the accused's mental condition when

10 imposing sentence, whether or not it would satisfy the

11 medical definition element of a mental incapacity test,

12 and this is obviously the option which is the most

13 favourable to the accused.

14 The author of the article says it's unclear

15 whether it was in fact the second or the third of these

16 possibilities that was applied by the Trial Chamber in

17 this case. But in our submission, it was clearly the

18 third possibility that was applied, which was the

19 possibility that was the most favourable to the

20 accused. And in order to demonstrate this, I'd refer

21 to two paragraphs of the judgement.

22 The first paragraph is paragraph 1186, and

23 I'll read it. It says:

24 "For the reasons stated, the Trial Chamber

25 is not persuaded by the defence of diminished

Page 621

1 responsibility as canvassed on behalf of Esad Landzo.

2 The Defence does not contend that, at the relevant time,

3 Esad Landzo was unable to distinguish between right and

4 wrong. Although it does appear from the testimony of

5 the experts that Mr. Landzo suffered from a personality

6 disorder, the evidence relating to his inability to

7 control his physical acts on account of abnormality of

8 mind is not at all satisfactory. Indeed, the Trial

9 Chamber is of the view that, despite his personality

10 order [sic], Esad Landzo was quite capable of

11 controlling his actions."

12 So a relevant mental condition was found not

13 to exist. That excludes the first and second of those

14 two possibilities I mentioned.

15 But then the Trial Chamber went on to hold,

16 at paragraph 1283:

17 "While the special defence of diminished

18 responsibility, raised by the Defence, has been rejected

19 by the Trial Chamber above, the Trial Chamber may

20 nonetheless take note of the evidence presented by

21 numerous mental health experts, which collectively

22 reveals a picture of Mr. Landzo's personality traits

23 that contributes to our consideration of appropriate

24 sentence."

25 In other words, while the medical element of

Page 622

1 diminished medical [sic] responsibility was not established,

2 his mental condition was nonetheless taken into account

3 in sentencing. And while it's impossible to know

4 precisely how much difference this made to the ultimate

5 sentence in this case, a comparison of his sentence to

6 that of his co-accused, Mr. Delic, indicates that the

7 difference may have been significant.

8 Now, the Prosecution does not concede that

9 the Trial Chamber was correct in law in adopting this

10 third approach. In the case of serious violations of

11 international humanitarian law, the Prosecution submits

12 that it would be inappropriate to allow sentences to be

13 reduced significantly merely because the accused was

14 somewhat hot-headed or given to anger or lacking in

15 self-control. It's the first option that is the normal

16 continental variant.

17 The continental variant option is clearly

18 consistent with international standards of justice, and

19 there's no obvious reason why a broader application of

20 the defence of diminished mental responsibility should

21 be justified.

22 However, this is an issue that doesn't

23 necessarily fall for consideration in this appeal. If

24 the Trial Chamber erred in law in this respect, it

25 erred to the significant benefit of the accused. The

Page 623

1 error cannot justify an appellate remedy in favour of

2 the accused. We, therefore, submit that there was no

3 error of law.

4 Mr. Landzo also claims that the Trial Chamber

5 erred in fact in rejecting his defence of diminished

6 mental responsibility. As I've indicated, under the

7 continental variant, diminished mental responsibility

8 will exist where an accused, by reason of a relevant

9 mental condition, has a reduced ability either (1) to

10 appreciate the wrongfulness of his or her actions; or

11 (2) to control his or her actions. And in respect of

12 these two matters, I refer back to paragraph 1186 of

13 the Trial Chamber's judgement.

14 As to Mr. Landzo's ability to appreciate the

15 wrongfulness of his conduct, the Trial Chamber said in

16 this paragraph that the Defence did not contend that

17 Mr. Landzo was unable to distinguish between right and

18 wrong, and unless the Defence can show from the record

19 that the Defence did, in fact, contend this at trial,

20 this part of the Trial Chamber's finding can hardly be

21 an error of fact.

22 As to Mr. Landzo's ability to control his

23 actions, the Trial Chamber concluded in this paragraph

24 that Mr. Landzo was quite capable of controlling his

25 actions. Was this conclusion so unreasonable that no

Page 624

1 reasonable trier of fact could have reached it?

2 On this issue, our submissions are set out in

3 some detail in our response brief. I won't repeat them

4 here.

5 As indicated in this brief, the Prosecution

6 expert witness called at trial, expressed the view that

7 diagnosis of personality disorder was not warranted.

8 The views expressed by the Defence expert witnesses

9 were tentative and, we submit, inconclusive.

10 The Defence accepts, as I understand it, that

11 it had the burden of establishing diminished mental

12 responsibility on the balance of probabilities, and in

13 the circumstances, we submit that it was not

14 unreasonable for the Trial Chamber to conclude that the

15 Defence had not discharged that burden.

16 Ms. Sinatra said in her submissions that she

17 accepted that unreasonableness was the relevant

18 standard of review, consistently with the Tadic appeal

19 judgement, but in our submission, what she has

20 effectively asked the Appeals Chamber to do in her

21 submissions is to undertake a de novo review of the

22 evidence and this the Appeals Chamber should not do.

23 Unless I can further assist the Bench, those

24 are my submissions in response to this ground.

25 JUDGE HUNT: Thank you very much.

Page 625

1 Yes, Ms. Sinatra.

2 MS. SINATRA: Well, Your Honour, based on

3 Mr. Staker's reasoning, is he saying that offences need

4 not be defined before we begin trial? Because that's

5 not the same thing as not defining an affirmative

6 defence before we begin trial.

7 He also stated that every civilised system

8 has such a defence. Does the ICTY want to be the only

9 international civilised system without such a defence?

10 JUDGE BENNOUNA: [Interpretation] Ms. Sinatra,

11 I'm wondering, and I would like to ask you if there is

12 no confusion here in your mind between the definition

13 of a crime, and that's something with all the elements

14 that are part of a crime, and if you don't confuse that

15 with the general principles of law that apply to that

16 act, to that crime. I think these are two different

17 things.

18 One the one hand, you have the definition of

19 the crime, and we know it, and that's part of the

20 jurisdiction of our Tribunal. Then you have the

21 general principles of criminal law and the issues of

22 diminished responsibility because of mental disorders,

23 and that's part and parcel of the general principles of

24 criminal law. I think these are two different things.

25 MS. SINATRA: If I understand you correctly,

Page 626

1 you're talking about the general principles of law as

2 applied to diminished mental responsibility, that there

3 is a pool out there that we can draw from and that I

4 should have known what the definition was from the

5 general principles of law in the international

6 community.

7 If that's the question, then I would have to

8 respond that there are so many different principles of

9 law, and the definitions of the affirmative defence

10 need to be known before we start trial just as well as

11 the elements of the crime need to be known. No?

12 JUDGE BENNOUNA: [Interpretation] No, not at

13 all. The Prosecutor told earlier on, that in all

14 systems, a Tribunal does not necessarily state the

15 criteria that it's going to apply. They don't

16 necessarily announce that before analysing the case

17 that is in front of itself. A Tribunal is not there

18 to -- it's in an academic institution. A Tribunal is

19 there to make decisions on specific cases and not

20 necessarily announce the principles that it's going to

21 be used. That's been stated earlier on, and I think

22 you should think about it.

23 Now, the principle nullem crimen sine lege,

24 that's a different thing altogether; the no crime if

25 there is no law at the time of a crime.

Page 627

1 The implementation of the principles of

2 criminal law for these specific crimes and for

3 responsibility, these are all general criminal

4 principles and they are not necessarily defined in

5 advance by the Tribunal before applying them. That's

6 what was told to you while you were on, and I'd like

7 you to think about it, please.

8 JUDGE HUNT: If I may add to that. This

9 Chamber recently dealt with the very point of nullem

10 crimen and the development of the law in Aleksovski.

11 MS. SINATRA: Well, I believe that in all

12 fundamental principles of criminality, though, the

13 accused has the right to know what elements he has to

14 prove before he begins the trial. And I understand

15 what you're saying, that this is not where there was no

16 crime at the time, but when you talk about an

17 affirmative defence, I believe that this deciding it

18 after the fact is an application of ex post facto law.

19 In a civil case where there is no risk of

20 loss of freedom or loss of life, in the United States,

21 of course you can have arguments and then the court can

22 come to findings of fact and conclusions of law. But

23 in a criminal case, the well-established principles of

24 criminality say that the accused has a right to know

25 what it is he has to prove before he is put to the

Page 628

1 test. And I think that that's the difference that

2 you're talking about, Judge Bennouna, would be maybe a

3 civil case where liberty is not at stake versus a

4 criminal case.

5 But if I might go on. Mr. Staker has

6 referred extensively to this article which I appreciate

7 him giving me at the close of business yesterday. I'm

8 not objecting, because I do believe that this article

9 assists the appellant and the Court, but I do believe

10 that there was a scheduling order as far as new

11 material to be presented would be allowed.

12 JUDGE HUNT: If you have any problem with the

13 time you've had, it would be appropriate for some

14 written submissions to be put in perhaps next week, if

15 you have that real problem. I don't think that

16 articles in journals constitute new material, but,

17 nevertheless, if you seek some extra time, you'd be

18 very welcome to have it, because we would like your

19 assistance in relation to the points that have been

20 raised and based upon the article.

21 MS. SINATRA: Thank you very much, Your

22 Honour. I did have time to review the article last

23 night, and I would just like to distinguish a few

24 points in the article.

25 If the article is to be believed, then on

Page 629

1 page 318, last sentence, it says that:

2 "It was applied in November of 1998 in the

3 ICTY's Celebici camp judgement in which the Trial

4 Chamber defined diminished responsibility, a concept

5 borrowed from the criminal law of England and Wales."

6 He also comes up with a test that the

7 Celebici Trial Chamber applied, on page 321, last

8 sentence:

9 "In its judgement," and I'm reading from the

10 article, last sentence, "the Trial Chamber established

11 a two-part test for diminished responsibility. At the

12 time of the alleged acts, the accused (1) must have

13 been suffering from an abnormality of mind that; (2)

14 substantially impaired the ability of the accused to

15 control his or her actions."

16 And it also states that:

17 "On the facts the Trial Chamber accepted

18 that Landzo suffered from an abnormality of mind at the

19 time of the acts but rejected this because he failed to

20 satisfy the second part of the test."

21 I don't believe any of this is clear or

22 anything that we could derive from the Trial Chamber

23 judgement.

24 It also states that the five experts had --

25 there were five experts, one from the Prosecution,

Page 630

1 three from the Court, and one from the Defence, and

2 that's not true.

3 JUDGE HUNT: Let's agree that we are going to

4 go to the record of the trial rather than to this

5 article in order to determine what happened there. I

6 think it's been tendered or produced for a different

7 purpose about how the international law might be

8 developed, and that's the only really interesting part

9 of it.

10 MS. SINATRA: That is very interesting, and I

11 did find it illuminating in certain areas that I hadn't

12 even thought about how it would affect the presentation

13 of expert witness testimony, and I think some new rules

14 here at the Tribunal have been passed since I began the

15 trial in 1997. This refers to Rule 76 bis, which talks

16 about expert testimony that didn't exist then. So

17 there have some results of the conclusion from the

18 Celebici Trial Chamber, I believe.

19 I would like to go back to -- Mr. Staker had

20 read from page 329, where he talked about the influence

21 of ongoing medical recognition of nuances in the forms

22 of degrees of mental illness as well as the growing

23 belief that criminal sentencing should take into

24 account the individual circumstances of the offender,

25 reduced capacity as a response to the customary

Page 631

1 all-or-nothing approach. And he went on to talk about

2 how it really is an all-or-nothing approach, but what

3 the article concludes at the end, on page 335, in the

4 first sentence, is that these excuses are made

5 available because they serve the fundamental fairness

6 and are viewed as an essential component of a culture

7 of legality. And I think that that's something that

8 Mr. Staker also agreed with. Every civilised system

9 has the defence of diminished mental responsibility,

10 and it's outlined before a defendant, an accused is

11 forced to go and defend himself.

12 I have a lot of notes here that really would

13 go back to some kind of moot court competition in law

14 school, and I'm not going to try to challenge

15 everything that Mr. Staker said, but did he read the

16 judgement over and over again, and the last part of the

17 judgement where the Trial Chamber refers to the

18 wrongfulness of his conduct, whether he could tell

19 right from wrong. In any civilised jurisdiction, that

20 goes to insanity, complete lack of mental capacity, and

21 we never asked for that.

22 But to go back to the final -- what it all

23 boils down to is this case cannot be considered fair

24 for Esad Landzo, fair for any accused in this Tribunal

25 who is forced to face up to a conclusion that the Trial

Page 632

1 Chamber has come to without knowing what it based its

2 decision on. I don't know what test they applied, and

3 we will not know and we cannot know. Therefore, Esad

4 Landzo's conviction and his issues should be remanded

5 for a new trial or this Court should find acquittal.

6 JUDGE HUNT: Thank you very much indeed.

7 We've now got to group 7. Mr. Murphy, you

8 carry the burden of this one.

9 JUDGE BENNOUNA: [Interpretation] Excuse me,

10 Judge Hunt. I have another question for Ms. Sinatra,

11 because I want to be very clear about what she told

12 us.

13 You're telling us that you believe that --

14 well, you don't really see what sort of test the

15 Chamber has applied, whether it's of the 1957 English

16 Act or another test. You don't see what test was

17 applied.

18 Are you saying there was no criteria applied

19 or do you question, do you challenge the conclusions

20 drawn by the Trial Chamber with regards to the general

21 principle of diminished mental responsibility?

22 I would like to know exactly what you

23 challenge, or maybe you challenge both, because there

24 is still some confusion. You're saying that the

25 Chamber -- are you saying that the Chamber had no test

Page 633

1 or that it did not apply the right test, and what is,

2 according to you, the right test, or should the Chamber

3 have drawn other conclusions? What conclusions should

4 the Chamber have? I would like to have an answer to

5 this question very briefly, please.

6 MS. SINATRA: Your Honour, thank you, because

7 that really sums exactly what I'm saying. I am arguing

8 both, that the Trial Chamber came to the wrong

9 conclusion, but more importantly, whatever conclusion

10 it came to, there is no test that it applied. It

11 applied the wrong test because it didn't have a test to

12 apply at all.

13 If it used insanity, which it alludes to as

14 far as the issue of rightfulness or wrongfulness of his

15 actions or he didn't understand his right or wrong

16 conduct, then that's the wrong test because we never

17 asked for the defence of insanity. But since they

18 never told us and they confused the issue, they could

19 not have possibly come up with the correct conclusion

20 because they didn't apply the correct test or they

21 didn't apply any test at all.

22 JUDGE BENNOUNA: [Interpretation] According to

23 you, what is the right test? According to you, what

24 test should be applied?

25 MS. SINATRA: Well, I believe that the most

Page 634

1 prevalent test would be the English Homicide Act of

2 1957, but seeing the complications that it causes

3 because we have no lesser included offences, unless you

4 want to go back to the Erdemovic decision in the

5 discussion between war crimes and crimes against

6 humanity, we can have any variant of that. I don't

7 really care what the Court comes up with, I just want

8 something to go by, some guidance. And that's what we

9 were asking for in the trial. Just give us the

10 continental system, give us the common-law system, give

11 us a blending, but give us guidance.

12 JUDGE BENNOUNA: [Interpretation] You yourself

13 do not know what the right test should be.

14 MS. SINATRA: No, Your Honour, I really don't

15 know what the right test would be. I submitted that I

16 thought the English Homicide Act, but then we do have

17 so many problems, because it reduces it to

18 manslaughter, which again, to Judge Hunt, as he stated,

19 is still really just an issue in mitigation of

20 punishment. So I'm not saying that it goes completely

21 one way or the other. We just didn't know. And all

22 we're asking for is the Court to tell us what they

23 think is the right test, and that's what we wanted

24 before June of 1998, before we were forced to put on

25 our evidence of the affirmative defence.

Page 635

1 I don't know if I'm making any sense. I'm

2 trying to explain our position.

3 JUDGE BENNOUNA: [Interpretation] Thank you

4 very much.

5 MS. SINATRA: Thank you.

6 JUDGE HUNT: Yes, Mr. Ackerman.

7 MR. ACKERMAN: Your Honour, may I ask your

8 indulgence just extraordinarily briefly?

9 JUDGE HUNT: But you are not taking any part

10 in this; in fact, you've made it very clear in a reply

11 which you filed that it should have no bearing upon the

12 decision you got.

13 MR. ACKERMAN: I have nothing to say about

14 this issue at all.

15 It was my understanding that this morning the

16 Prosecutor was to report back regarding all of these

17 new documents, and I've had a conversation with

18 Mr. Farrell and learned that they have decided not to

19 proceed. Since I will be departing after the next

20 session, I think it would at least be appropriate to

21 somehow make that a matter of record before we close

22 this. But they do not, as I understand it, intend to

23 pursue their request that the Trial Chamber leave the

24 matters open with regard to Mr. Delalic.

25 JUDGE HUNT: Yes. Well, thank you for

Page 636

1 raising it. I had intended to do it later on.

2 Has anything been filed, Mr. Farrell?

3 MR. FARRELL: Nothing has been filed at the

4 moment, Your Honour.

5 JUDGE HUNT: Is there going to be something

6 filed?

7 MR. FARRELL: No, Your Honour, there will be

8 nothing filed in relation to that. And as a result of

9 the order of the Appeals Chamber, I understand that the

10 case for the Prosecution, therefore, on this appeal

11 will be closed.

12 JUDGE HUNT: Thank you. There you have it,

13 Mr. Ackerman.

14 MR. ACKERMAN: Thank you.

15 JUDGE HUNT: Well, Mr. Murphy. We have a few

16 moments. We are running behind, so let's start.

17 MR. MURPHY: May it please the Court,

18 counsel, distinguished members of the Prosecutor's

19 office. The Court may perhaps be forgiven for

20 wondering who I am after my long silence in this

21 matter. I feel rather like the poet of whom it was

22 once said that he would be remembered long after

23 Shakespeare and Milton had been forgotten, but not

24 until then.

25 And so in that spirit, I do finally come to

Page 637

1 you to argue three grounds of appeal, identified as

2 Esad Landzo's second, third, and fourth ground, and of

3 course these appeals, grounds of appeal, have been

4 adopted or joined in at this time by the appellants

5 Delic and Mucic. And I will, of course, come to each

6 of those grounds of appeal specifically, but before I

7 do, it may be convenient to address to the Appeals

8 Chamber certain matters which really apply to all three

9 of them and which can conveniently be dealt with at the

10 same time.

11 In beginning, I need to ask the Appeals

12 Chamber to do one thing. We have now spent three days,

13 a little more than three days, discussing in great

14 detail the substantive merits of the case, the issues

15 of law, to some extent the issues of fact. These

16 grounds of appeal, however, are not concerned with the

17 substantive merits of the case at all. In fact, they

18 address the only thing which could be possibly more

19 important than the substantive merits of the case,

20 which I'm going to characterise as the rule of law.

21 And by that phrase, let me explain that I

22 simply mean this: that in all civilised legal systems,

23 the accused enjoys the right to a fair trial, and in

24 addition to that, a somewhat different matter, the

25 right to a trial which is seen to be fair. When I use

Page 638

1 the phrase "the rule of law," I simply do not invoke

2 any higher concept than that.

3 It's a matter of practicality, but

4 nonetheless a very important one, and it's important

5 for me to seek to emphasise to the Appeals Chamber at

6 the outset that we now must move our minds away from

7 any opinions we may have formed, or that the Trial

8 Chamber formed, regarding the guilt or innocence of the

9 accused on any one of the charges brought against

10 them. The matters which we now address are simply

11 quite different from that, and one of the most

12 difficult judicial functions, I suspect, is to put

13 aside those considerations for a time to talk about the

14 fairness of the trial and the appearance of fairness of

15 the trial that the accused were entitled to.

16 Now, if I may -- and Your Honour, I take it

17 that Your Honour would wish to take the break almost

18 now, but --

19 JUDGE HUNT: If this is a convenient time.

20 MR. MURPHY: It would be a convenient moment,

21 Your Honour, yes.

22 JUDGE HUNT: Thank you very much,

23 Mr. Murphy. We'll resume at 12.00.

24 --- Recess taken at 11.32 a.m.

25 --- On resuming at 12.02 p.m.

Page 639

1 JUDGE HUNT: Yes, Mr. Murphy.

2 Oh, I'm sorry. Yes, Mr. Morrison.

3 MR. MORRISON: Your Honour, just to deal with

4 one matter, because it really fits in with the matters

5 raised as to the new documents alluded to by my learned

6 friend Mr. Ackerman.

7 The position is that if the Prosecution are

8 not going to seek to put any more material before the

9 Court for Mucic, we are satisfied with that and we will

10 not be seeking to put any further material before the

11 Court, subject to one caveat. We've seen a number of

12 the documents. We haven't seen all of the documents.

13 If we could have the indulgence of the Court for 24

14 hours, the chances are very high indeed that we will

15 not be pursuing this matter any further at all. But

16 with an abundance of caution, until we've actually seen

17 all the documents, I can't make a final determination.

18 JUDGE HUNT: Yes. Well, I see no reason why

19 you shouldn't have that extra time. Obviously do check

20 everything, but at some stage perhaps something in

21 writing will have to be put before us. We won't be

22 sitting here in 24 hours.

23 MR. MORRISON: I accept that, and of course

24 it won't.

25 MR. FARRELL: Excuse me, Your Honour. I

Page 640

1 apologise. I know you haven't called on me. The

2 Prosecution did disclose this morning all documents

3 that would be required pursuant to your order under

4 Rule 66 and 68 that have anything to do with

5 Mr. Mucic. I think the request of Mr. Morrison, if I

6 understand it correctly, is they would like the

7 opportunity to see the other documents. The

8 Prosecution just wants to make it clear that the order

9 was complied with and that the evidence relevant to

10 Mr. Mucic under Rule 66 for material to the Defence,

11 and Rule 68, anything that could potentially be

12 exculpatory, has been given and received and signed for

13 those documents this morning.

14 Mr. Morrison and Mr. Kuzmanovic have been

15 kind enough to approach me at the break and indicate

16 that they would like to see the other documents.

17 That's a matter of consideration for the Office of the

18 Prosecution. I don't think it's going to be much of a

19 concern, but we would like to have the opportunity to

20 look at those other documents. And I've discussed with

21 Mr. Kuzmanovic that I'm happy to meet with him at lunch

22 to discuss that issue and to try and resolve this

23 without any more difficulty.

24 JUDGE HUNT: As long as we get some sort of

25 indication within a reasonable period of the end of the

Page 641

1 hearing, but I'll, at this stage, leave it to the two

2 of you to sort it out.

3 MR. FARRELL: Thank you, Your Honour.

4 JUDGE HUNT: Thank you.

5 Yes, Mr. Murphy.

6 MR. MURPHY: Thank you, Your Honour. I would

7 like to take a moment to ask the Court's indulgence to

8 say this -- this is in deference to some things that I

9 must say subsequently -- that for myself, I have been

10 involved in the practice and teaching of law, both in

11 England and the United States, for over 30 years. And

12 I say this because in the jurisdiction of England,

13 where I first had my legal experience, a certain

14 latitude was granted to counsel of greater seniority to

15 make submissions in a somewhat more direct manner to

16 the Court -- respectful, but direct -- and it is my

17 duty in this case to make a certain number of

18 submissions that will be of an unusually direct nature,

19 probably more so than that I have had occasion to do in

20 my professional experience up until this time.

21 I would like to begin by reading to the Court

22 some words written by His Honour Judge Nieto-Navia in a

23 decision decided after our briefs were filed in this

24 case, in the Appeals Chamber in the case of

25 Barayagwiza, a case from the Rwandan Tribunal, in which

Page 642

1 the facts were, of course, very different to the case

2 that we have today. But in his separate declaration in

3 that case, His Honour wrote some words that I think are

4 very pertinent to the present case. He dealt at some

5 length with the duty of the Tribunal to uphold the

6 norms of international criminal law and criminal law as

7 applied by the various civilised legal systems of the

8 world. And he added this:

9 "The International Community needs to be sure

10 that justice is being served, but that it is being

11 served through the application of their Rules and

12 Statutes," that is to say the Tribunal's Rules and

13 Statutes, "which are applied in a consistent and

14 unbiased manner."

15 And he concluded, after a citation from

16 another case:

17 "Difficult as this may be for some to

18 understand, these are the principles which govern

19 proceedings before this Tribunal at all times, even if

20 application of these principles on occasion renders

21 results which, for some, are hard to swallow."

22 Now, I cite those words because what I'm

23 going to ask the Court to do is by any standards a very

24 hard thing, which is to set aside the results of an

25 extremely long trial and not on the grounds of

Page 643

1 substantive merit but because some of the most basic

2 rights of the accused were not afforded to them in

3 their trial.

4 Now, I referred, before the break, to two

5 fundamental rights which, in my submission, an accused

6 is entitled to before any criminal court regardless of

7 the offence charged and regardless of the nature of the

8 court. These apply alike to Prosecutions for

9 shoplifting in the Magistrate's Court as well as to the

10 very grave offences with which this Tribunal is

11 concerned. And as I said before, these rights can be

12 summarised in the general propositions that the accused

13 entitled to a fair trial and to the appearance of a

14 fair trial.

15 Now, when we analyse what that means, it

16 really comes down, I think, to a series of rather

17 specific rules which we can characterise as fundamental

18 rules of fairness or rules of due process of law or by

19 some other language, but what they come down to in the

20 end is a series of rules, quite few in number, which

21 cannot be broken. Certain lines that cannot be crossed

22 in any criminal case. And because these rules are, I

23 think universally recognised, it is very unusual to

24 find any one of them broken.

25 In the present case, we find that three of

Page 644

1 them were broken. And we have, of course, submitted a

2 great deal of evidence on this, evidence not in the

3 sense of what was presented to the Trial Chamber but

4 evidence presented to the Appeals Chamber in support of

5 these grounds, and my submissions on the individual

6 grounds will really be confined to just summarising

7 what I think the state of the evidence is.

8 But to summarise, the three rules that cannot

9 be broken in this case but which were broken are

10 these: Firstly, a criminal trial must be conducted in

11 front of a duly qualified Tribunal. And by that I mean

12 that a judge must be qualified in terms of the Statute

13 of the Court or the Tribunal in this case as being a

14 person qualified at that time to hold judicial office.

15 Now, not only must the judge be so qualified

16 at the time when the trial starts, and I think the

17 Prosecution agree with this proposition, but the judge

18 must continue to be qualified at all times throughout

19 the trial. In this case, we believe the evidence

20 demonstrates that Judge Odio-Benito, although of course

21 qualified when she was elected in November of 1993 and

22 subsequently, became disqualified because of her

23 election as vice-president of the Republic of Costa

24 Rica as a result of the February 1998 election.

25 And let me say this: that despite the fact

Page 645

1 that I shall have some very direct things to say both

2 in relation to Judge Odio-Benito and to

3 Judge Karibi-Whyte, I do not at any time intend

4 personal disrespect to those Judges, but the Appeals

5 Chamber will appreciate that it is my duty to show what

6 happened.

7 The second rule that cannot be broken is that

8 the Judges must not have any conflict of interest

9 arising from their own personal commitment to a cause

10 which is relevant to the subject matter of the

11 proceedings. In the present case, it is common ground,

12 and this is an agreed fact between the Prosecution and

13 the Defence, that Judge Odio-Benito was, throughout the

14 trial, a member of the board of trustees of the United

15 Nations Fund for Victims of Torture. And this really

16 is a good illustration of the fact that we make no

17 personal criticism of the Judge. That's obviously a

18 praiseworthy activity, and we assume all that Judges of

19 the Tribunal are opposed to torture.

20 The fact of the matter is that the law -- and

21 again, I don't think there's any real disagreement

22 between Prosecution and the appellants on this -- the

23 law is, if a Judge may have some conflict of that kind

24 which has the potential to create an appearance of bias

25 against an accused there must be a disclosure of that

Page 646

1 fact by the Judge before trial, and except for the

2 full, informed consent of the defendant, the Judge may

3 not play a role judiciously in that trial. The

4 evidence shows this rule also was broken.

5 The third rule of fundamental fairness that

6 was broken in this trial is that the Judges -- and of

7 course this would apply to jurors in a jurisdiction

8 that employs that method of trial -- must be capable of

9 giving their full and alert concentration to the

10 proceedings sufficiently to enable them to follow the

11 evidence and to render informed and competent rulings

12 on questions of law and fact. In the case of the

13 Presiding Judge, also to make rulings on matters of

14 evidence and procedure throughout the trial that are

15 informed and competent based upon the proceedings.

16 Now, on this issue, of course, we have the

17 extracts tapes, and I suspect that nothing that I or,

18 for that matter, Mr. Yapa may say about that will

19 change any impression that the Appeals Chamber may have

20 already made by looking at them, but I will say, and

21 this may be my only submission to this effect, that

22 when one looks at the extracts tapes, there can be no

23 question that this rule was violated in this case.

24 Again, we make no criticism of Judge Karibi-Whyte.

25 We're sure that whatever his condition was, something

Page 647

1 was going on that prevented the learned judge from

2 playing that part in the trial.

3 And so we are in the position of looking back

4 at what happened to the Trial Chamber, and two

5 questions really come to mind which must be answered.

6 The first is: Why did the trial continue when this

7 situation -- all these three situations were in

8 effect? Secondly: What if anything should be done

9 about it by this Appeals Chamber?

10 Now, on the first of those questions, I

11 suspect that the answer is this: There was a balance

12 of convenience versus a balance of fairness and the

13 appearance of fairness that had to be assessed at

14 different stages of the trial. Nobody wanted to start

15 the case again, and for understandable reasons. And I

16 do not minimise in anything that I say the

17 consideration of convenience that was certainly in play

18 when the trial was allowed to continue. It was a very

19 long trial. It must have cost an enormous amount of

20 money. I have no idea how much. It involved countless

21 hours of work on the part of the Judges, the

22 Prosecutors, Defence counsel, and of course a good deal

23 of dedication and courage on the part of witnesses in

24 coming forward.

25 Not to reopen this again, but I will also add

Page 648

1 to that in passing, and not in a critical way but as a

2 legitimate consideration, that these were, in fact, the

3 only Bosnian Muslim accused who had been indicted and

4 brought to trial by this Tribunal. And I don't

5 discount that. It's important. After all, the

6 Tribunal was set up by the Security Council not only to

7 Prosecutor offenders but to contribute to the

8 restoration of peace and security in the territory of

9 the former Yugoslavia, and even-handedness in that is

10 not something that I criticise but, rather, would

11 commend.

12 It was a legitimate consideration, and all of

13 those things taken together militated very strongly in

14 favour of continuing the trial at certain points when

15 it became clear that it would have been better to

16 discontinue it. I think there were certain moments,

17 defining moments, in the history of the trial where

18 perhaps, with the wisdom of hindsight, one would have

19 said, "We should have cut our losses. We should have

20 stopped here and begun again." Perhaps the first of

21 those moments was sometime in the early summer of 1997,

22 when it became clear that there was a problem with the

23 powers of concentration of the Presiding Judge. I'll

24 come to that, of course, in more detail.

25 Another defining moment was when

Page 649

1 Judge Odio-Benito announced her intention to seek

2 nomination as the -- for the vice-presidency of Costa

3 Rica, which I'm not sure we have a date for exactly but

4 it must have occurred before February of 1998. And of

5 course, intertwined with that was the fact that the

6 Judge's term of office was going to end in November of

7 1997, she was not re-elected, and that was, therefore,

8 a live issue from that time.

9 Again, despite the balance of convenience, it

10 is my submission that at least at that point the trial

11 should have been stopped and should have begun again

12 before a differently constituted Tribunal.

13 Now, Your Honours, this is important not just

14 because of the interests of these appellants, and of

15 course my duty is to represent my client, and I believe

16 it would have been in his interest for the trial to

17 have been started again, but I would also say this, and

18 I ask the Court's indulgence because it may be a

19 generality but it may be an important one.

20 The position of international criminal law

21 today is this: We have gone away from the era of the

22 Nuremberg and Tokyo Tribunals, flawed as they might

23 have been, and for the first time we have a Tribunal

24 set up which has the duty to consider war crimes

25 committed not only by the victors in a conflict, but by

Page 650

1 any person who may have committed them. That is a

2 wonderful step forward. In the future, we may have a

3 permanent international court which will be that duty,

4 but, of course, as Your Honours know, that, at the

5 moment, is somewhat uncertain.

6 At the present time, these tribunals are

7 international criminal law, the future of international

8 criminal law, and what scholars and judges lack look

9 back on what these tribunals did to assess their

10 contribution of the law, my submission is that they

11 will look at one thing in particular. Not the number

12 of convictions obtained -- there will be enough of

13 those -- and not the quality of the jurisprudence,

14 because if I may say so, with respect, that is already

15 well established.

16 What they will do is to look back and say:

17 How seriously did the tribunals take the duty to

18 provide the accused with a fair trial and the

19 appearance of a fair trial? And that can only be

20 really judged when we have a hard case, by which I mean

21 where it costs us something to give the accused that

22 because of the sheer inconvenience in terms of time and

23 expense and all the rest it of it, and this is that

24 case. This is the case which will determine the

25 determination of this Tribunal to uphold the rule of

Page 651

1 law. And there are many people out there in the former

2 Yugoslavia who are looking to the Tribunal for that,

3 because, Your Honour, when conflict breaks out, the

4 rule of law is amongst the first casualties.

5 Now, if courthouses are destroyed by bombs

6 and mortar, we can rebuild them; and if the judiciary

7 and the lawyers are depleted by conflict, others will

8 arise, but if you destroy the rule of law, it cannot be

9 so easily rebuilt. And that's what I perceive to be

10 the importance of this case. And I apologise for

11 sounding jurisprudential or philosophical about it, but

12 this is the reality that Your Honours face.

13 Now, having said that, let me come to address

14 the detail of what happened. And, Your Honour, I don't

15 know whether it would be preferable for me to deal with

16 all three grounds and then invite reply, or whether

17 Your Honour would wish me to deal with them one at a

18 time and then have the Prosecution respond to that.

19 JUDGE HUNT: We originally gave you the hour

20 to deal with all three together. That seems to be the

21 most sensible way to proceed, seeing that you have them

22 drawn up in that way.

23 MR. MURPHY: If Your Honour pleases. Then in

24 that case, Your Honour, let me begin with Landzo's

25 second ground of appeal. That is the one that asserts

Page 652

1 that Judge Odio-Benito ceased to be qualified as a

2 Judge by reason of her election to -- as vice-president

3 of Costa Rica. And I will not repeat what I have said

4 in my brief, I'll just try and pull together what I

5 think the evidence shows and what we have established.

6 The essential facts are really undisputed.

7 We know that the Judge was elected in 1993 and was due

8 to leave office in November of 1997; she was not

9 re-elected. And an interesting event occurred at that

10 point, because as we know, the Security Council passed

11 a resolution, number 1126, which it is our submission,

12 and until very recently I think was the Prosecution's

13 submission, had the effect of extending the terms of

14 office of the Judges until the conclusion of the

15 Celebici case. And I will return to that because it

16 may be important in another respect.

17 But the undisputed facts also are that at

18 some time before February 1998, Judge Odio-Benito

19 accepted the invitation of the now President Rodrigues

20 to run for office as the second vice-president of Costa

21 Rica. No doubt there was some campaigning involved.

22 We don't know the detail of that, but be that as it

23 may, in the February 1998 election, she was in fact

24 elected to that position. And on the 8th of May of

25 that year, as required by the constitution of Costa

Page 653

1 Rica, she took the oath of office and became the second

2 vice-president.

3 Now, at some time before that, we learned

4 that there were some discussions, and

5 Judge Odio-Benito, I think, quite frankly and

6 conscientiously told the Tribunal what she intended to

7 do, and at some point, an agreement was arrived at

8 which was to this effect: that the Judge would

9 undertake not to assume any activities or carry out any

10 activities as vice-president until the Celebici case

11 had concluded, and the Tribunal was evidently satisfied

12 that that would remove any problem that there might be

13 arising from her continuing to sit as a Judge while

14 being vice-president.

15 Now, I accept that that arrangement was

16 entered into on all sides with good faith and with the

17 intention of making the best of a situation which was,

18 to say the least, undesirable. Everyone, I think, must

19 have been aware of the implications arising from the

20 situation in terms of the separation of powers, the

21 fact that Costa Rica is a member of the United Nations,

22 the fact that the Judge would hold the third highest

23 executive office in that state at the same time as

24 sitting in a judicial capacity. Those issues, I think,

25 were too obvious to ignore. And it must have been the

Page 654

1 impression of those concerned that the agreement that

2 was entered into somehow solved that problem.

3 It is our submission that it did not. And

4 although we have entered some degree of tentative

5 evidence to the effect that the Judge did, in fact,

6 engage in at least some activities as vice-president

7 elect, that really is not the main point. Our main

8 submission is that whatever happened, whatever

9 Judge Odio-Benito did or did not do, this agreement

10 was, from the first, a house of cards. And it was a

11 house of cards because it did not address the

12 fundamental question of separation of powers that was

13 raised by the situation. It was violative of the

14 constitution of Costa Rica, and it was an agreement

15 that for all practical purposes could not be carried

16 out.

17 Now, as Your Honours will recall, this matter

18 was canvassed during the trial, and there were

19 proceedings in front of the Bureau which were addressed

20 really on the basis of judicial independence, and the

21 bureau's ruling really amounts to this: that there was

22 no breach of judicial independence involved in

23 Judge Odio-Benito becoming vice-president in addition

24 to being a judge.

25 Now, with great respect, and it may be simply

Page 655

1 because the Bureau was really not briefed as to the

2 real issue here, the real issue here was not one of

3 judicial independence, which would have been addressed

4 presumably under Rule 15 of the Rules of Procedure and

5 Evidence, the issue here was one of qualification under

6 Article 13 of the Statute.

7 Now, both in the Court below, in the Bureau,

8 and most of the way through the preparation of this

9 appeal, the Prosecution appeared to have no objection

10 to the construction of the Constitution of Costa Rica

11 that we had advanced. But at some point, I think in

12 their appellate brief, they indicated they did have a

13 problem as to what the Constitution meant, and for that

14 reason we retained an expert on the law of Costa Rica,

15 whose opinion the Court admitted.

16 Subsequently, the Prosecution retained their

17 own expert, Senor Batalla. And having reviewed that,

18 we had no objection, because in our opinion the two

19 experts said the same thing. And to illustrate this, I

20 will make my argument on this point using only the

21 opinion of Senor Batalla, which was admitted by the

22 Prosecution. And although the Court has it, and I

23 won't read extensively from it, I do wish to look at

24 just one or two things and put a reference in the

25 record.

Page 656

1 His opinion, on the second page, was in

2 response to a question posed to him by the Prosecution,

3 which reads as follows:

4 "Can a person be elected by the legislative

5 assembly as a magistrate of the Supreme Court of

6 Justice if at the time of that election the person is a

7 vice-president of Costa Rica?"

8 This is on page 2 of Senor Batalla's opinion.

9 The answer he gave, without reading it all,

10 was this:

11 "The provisions under Article 161 of the

12 Constitution are clear to state that the position of

13 magistrate is not compatible with any position of any

14 other branch. Therefore, a magistrate cannot be

15 designated for such a position if at that time he is

16 the vice-president of Costa Rica. There are historical

17 reasons that justify this."

18 And then he goes on to cite part of an

19 opinion from the Constitutional Tribunal.

20 On the next page, just before the quotation

21 at the bottom of page 3, Senor Batalla adds to that:

22 "The body of laws of Costa Rica stipulates

23 in general terms the incompatibility of the positions

24 of magistrate and judge," and a footnote adds that

25 judge and magistrate are the only officials that may

Page 657

1 administer justice.

2 So the incompatibility of those positions

3 with those positions elected by popular vote, such as

4 the position of vice-president. And the justification

5 lies on the demand of the independence of the judge.

6 Now, perhaps one final reference on page 7 in

7 answer to a question: Would the person in certain

8 circumstances -- that I'll come back to -- would the

9 person be both the magistrate of the Supreme Court of

10 Justice and the vice-president? Senor Batalla says:

11 "In no way may a magistrate hold

12 simultaneously the position of magistrate and the

13 vice-presidency of the Republic. This would compromise

14 the independence of functions that must exist at all

15 times, according to the concept that our constitution

16 has assumed about the division of powers. Under this

17 concept, the same person may not hold two different

18 powers at the same time."

19 Your Honours will note that nothing in those

20 statements really creates any distinction between the

21 situation in which the vice-president is, so to speak,

22 actively being vice-president, in the manner one would

23 expect, or, as the Bureau put it, was being a

24 vice-president in name only. Indeed, it's our position

25 that the contention that a vice-president can be such

Page 658

1 in name only is a clear violation of Article 135 and

2 Article 136 of the Constitution, for this reason: The

3 vice-presidents, under the Constitution, have only one

4 positive function that is laid down. In all other

5 respects, their function seems to be simply what is

6 delegated to them by the president.

7 JUDGE HUNT: Could I just interrupt you for a

8 moment?

9 MR. MURPHY: Yes, Your Honour.

10 JUDGE HUNT: The Prosecution has taken a

11 rather peculiar distinction, made a peculiar

12 distinction, between a grievance as to press cuttings

13 and copies of the Constitution, and they seem to

14 require some formal proof that this is indeed the

15 Constitution of Costa Rica. I notice, of course, that

16 they do rely themselves upon precisely the same edition

17 that at least one of the other parties do. Is there

18 really any point about this?

19 MR. STAKER: Your Honour, that does remain

20 our position, that --

21 JUDGE HUNT: How can you rely upon it and

22 they can't?

23 MR. STAKER: No, Your Honour. One of the

24 questions we asked in our expert opinion, for this very

25 reason -- we had a copy of the Constitution of Costa

Page 659

1 Rica from a publication from the Tribunal's library.

2 It had the text of the Constitution in the original

3 Spanish and it had an English translation. The date on

4 that copy that we had in the library I think was from

5 1995. Simply looking at it on its face, it's not clear

6 that the text of those provisions was necessarily the

7 text as in force at the relevant periods for this

8 appeal.

9 JUDGE HUNT: I think I've seen exactly the

10 same document you're speaking of, and at the end of it,

11 it identifies which amendments have been made, at the

12 very end of the document.

13 MR. STAKER: Possibly, Your Honour, but

14 still --

15 JUDGE HUNT: I'm trying to see what the point

16 of all this is. It seems to me that if you are both

17 using exactly the same edition and there is no

18 suggestion in the document itself that these relevant

19 provisions -- and they're far more than just 161 --

20 that we can't rely upon it.

21 MR. STAKER: Our position, Your Honour, was

22 that if some remedy or relief is being sought on the

23 basis of national law, national law becomes a fact that

24 has to be proved. And it was for that purpose that we

25 asked our expert, in the request for an expert opinion,

Page 660

1 whether the text in that publication accurately

2 reflected the text as in force at the times material

3 for this appeal, and whether the English translation

4 provided was an accurate English translation of those

5 provisions.

6 Our expert opinion indicated that the

7 provisions we identified were, in fact, as in force at

8 the material time, that the English translation was

9 accurate, and on that basis we would say that there is

10 evidence before the Appeals Chamber in relation to

11 those provisions.

12 But we would submit that simply taking a

13 publication and relying on that as the basis for

14 granting some judicial relief or remedy -- in fact, the

15 relief being sought here is the overturning of the

16 convictions at the end of a trial that lasted a year

17 and a half, and my friends made the point about what

18 the consequences of this is in terms of cost and

19 everything else involved, and we would submit that

20 before that kind of remedy is provided, there must be

21 very clear evidence that the basis for this remedy is

22 well founded.

23 If a provision of national law is being

24 relied upon as persuasive authority in support of a

25 legal argument -- you know, if the law was changed last

Page 661

1 week, it may not affect the persuasiveness. It shows

2 that for a period this was the law in a particular

3 national jurisdiction, it supports the argument being

4 made. But to grant the remedy that's being requested

5 here, we would submit that there must be a clear

6 foundation from which the granting of that remedy can

7 be made. And we would submit that simply to rely on a

8 publication found in a library, without proof that that

9 was the provision in force at the time, that the

10 translation that's being used in the application of the

11 law by the Appeals Chamber is a correct translation, we

12 would submit that that is not an appropriate basis on

13 which to proceed.

14 JUDGE HUNT: And you are going to do nothing

15 to cooperate in obtaining some advice from Costa Rica

16 as to the remainder of the document?

17 MR. STAKER: Your Honour, we identified what

18 we considered were the relevant provisions.

19 JUDGE HUNT: Well, your answer is you are not

20 going to cooperate; is that right?

21 MR. STAKER: I suppose -- well, if the

22 Chamber were to request us to provide --

23 JUDGE HUNT: You have such a request. This

24 must be the most technical of points. I can understand

25 the basis upon which you are putting it, but the fact

Page 662

1 that you asked your expert, who was there ready and

2 willing to do this only in relation to very few of the

3 articles strikes me as being a little absurd. This

4 document has to be read as a whole.

5 MR. STAKER: Yes, Your Honour, but I would

6 also submit that it is difficult and somewhat expensive

7 to ask an expert --

8 JUDGE HUNT: Well, either you pay for it or

9 the Tribunal pays for it. It comes out of the same

10 pocket, doesn't it?

11 MR. STAKER: Well, yes, Your Honour. Out of

12 different budget allocations, no doubt, but by the

13 Tribunal, yes, Your Honour.

14 JUDGE HUNT: Well, may we leave it to the

15 OTP, if necessary, with negotiation with the Defence

16 Counsel Unit as to who pays for it, that we get some

17 assistance on this point? Or do we have to ring up

18 this expert ourselves?

19 MR. STAKER: We will endeavour to provide the

20 assistance, Your Honour.

21 JUDGE HUNT: Thank you. Well, we'll proceed

22 at the moment that the document that you've both been

23 referring to is accurate, but that is subject, of

24 course, to it being confirmed.

25 MR. MURPHY: Your Honour, I would, with the

Page 663

1 Court's indulgence, like to take that a little

2 further.

3 There was no dispute by the Prosecution as to

4 the meaning or validity of the constitutional

5 provisions until it was suggested in the appellate

6 brief, in a most indirect manner, that it would be

7 inappropriate to prove them as a matter of law because

8 they were national law provisions.

9 In deference to that, our experts, Senor

10 Villalobos -- and by the way, Your Honour, we had

11 already submitted to the Court, in its entirety, both

12 in Spanish and in English, the Constitution of Costa

13 Rica in exactly the same edition that the Prosecution

14 has relied upon, and Senor Villalobos verified that

15 these indeed were the provisions.

16 The Prosecution indicated that they did not

17 require to cross-examine Senor Villalobos, which would

18 have been a course open to them. They then filed an

19 opinion by their own expert, who independently verifies

20 these provisions. And, Your Honour, with great respect

21 to Mr. Staker, for the Prosecution to raise this issue

22 now, in this indirect fashion, is little short of

23 outrageous.

24 JUDGE HUNT: Well, I'm sorry. I don't have

25 actually in this folder -- it's in another folder back

Page 664

1 in my room -- your expert's opinion. Does he directly

2 deal with that opinion?

3 MR. MURPHY: Yes. With the provisions of the

4 Constitution, Your Honour, yes.

5 JUDGE HUNT: That they're accurate and that

6 it's an accurate translation?

7 MR. MURPHY: Yes. He deals with those

8 provisions, and as does Senor Batalla.

9 JUDGE HUNT: No, no. The whole document.

10 That's what we need.

11 MR. MURPHY: Your Honour, I don't think he,

12 in terms, says that the whole document --

13 JUDGE HUNT: Well, that's where Mr. Staker

14 takes the point. I can understand the point he's

15 making. My only concern is that it seems to have been

16 left as some sort of a game between the two sides in

17 this as to who is going to spend some money. We want

18 the assistance and we want to reassure that that

19 document and its translation is accurate.

20 MR. MURPHY: Your Honour, I will look at

21 Senor Villalobos' opinion again and -- well, let me

22 look at that over the lunch break, Your Honour, and I

23 will return to that again. But my submission is that

24 what we have here is in fact a normal library edition

25 of the Constitution of Costa Rica, both in Spanish and

Page 665

1 in English, the entirety of which was placed previously

2 before the Court and was not, as far as we knew, the

3 subject of any dispute at all, particularly because the

4 Prosecution's expert used exactly the same edition.

5 But I will leave that, though, Your Honour, and move on

6 to other things.

7 The Prosecution, Your Honour, also put to

8 their expert a proposition that they had advanced in

9 their appellate brief, at that point without authority,

10 that gave the following possibility of construing

11 Article 161 of the Constitution. They said it is

12 possible that what really happened would be that

13 Vice-President Odio-Benito's election was invalid

14 because she ran for office while being a judge, rather

15 than the other way around.

16 Now, on the face of that, Your Honour, since

17 we know that the Judge was elected and is still the

18 Vice-President of Costa Rica, there is obviously no

19 real factual basis for that. And when they put it to

20 their expert, on page 4 of the opinion, in a form of a

21 very long hypothetical question, or series of

22 questions, beginning the word "suppose," and asked the

23 question: Would the magistrate continue to be a

24 magistrate and that the election as Vice-President be a

25 nullity? The answer, although conceding that that was

Page 666

1 a theoretical possibility, began with these words: "In

2 the practice, and due to several reasons --"

3 THE INTERPRETER: Could the counsel please

4 slow down when reading.

5 JUDGE HUNT: Would you slow down.

6 MR. MURPHY: I'm sorry, Your Honour.

7 The answer given began with the following

8 words: "In the practice, and due to several reasons,

9 these assumptions are impossible to happen." And of

10 course, Your Honour, as a matter of common sense, we

11 know that the issue here is simply one in terms of

12 Article 13.

13 Now, pulling all this together and analysing

14 what this means, Your Honour, Article 13 of the Statute

15 of this Tribunal, in addition to other qualifications,

16 requires that a judge possess the personal

17 qualifications to be a member of the highest court of

18 the state in which he or she is a member. And no doubt

19 at the time of her initial election, Judge Odio-Benito

20 more than met those qualifications. But the fact of

21 the matter is that as from certainly the 8th of May,

22 1998, at the latest, but I would submit probably as

23 early as the 1st of February, when the election

24 occurred, Judge Odio-Benito ceased to be a person who

25 was qualified to be a member of the Supreme Court of

Page 667

1 Costa Rica, and that is a simple application of Article

2 161 of the Constitution of that state, as both experts

3 agree to be its provisions.

4 Now, this is not simply a matter of academic

5 concern. Obviously, none of that made the Judge any

6 less competent as a judge. None of that influenced any

7 opinion that she was likely to come to on the law or

8 the facts. But what it did was to violate the

9 principle of the separation of powers, which of course

10 is really the purpose of Article 13 of the Statute of

11 this Court, and I think of every international court

12 that has analogous provisions.

13 And there are many -- there are dicta --

14 again, and I return to the separate declaration of

15 Judge Nieto-Navia in the case that I referred to

16 earlier, where His Honour had occasion to comment on

17 that same issue, although in a very different context.

18 And His Honour wrote this:

19 "The principle of the independence of the

20 judiciary is overriding and should at all times take

21 precedence, faced with any conflict, political

22 pressures, or interference."

23 And, Your Honour, we respectfully adopt those

24 words and would apply them to the present case. And

25 again I remind the Court that this is not a question of

Page 668

1 the merits of the case insofar as were the accused

2 guilty or innocent, but it is a question of the

3 composition of the Court, and in my respectful

4 submission it is a fundamental matter of such

5 importance that the trial must be declared a nullity.

6 Let me, as a hypothetical example, suggest

7 that if -- very different facts -- suppose that a judge

8 were, halfway through a trial, disbarred in his or her

9 own country because of some alleged misconduct and

10 thereby ceased to be entitled to practice law and to be

11 entitled to be appointed to the highest court of that

12 state. Your Honours, I think there could be no doubt

13 that the result of that would be that the trial would

14 be a nullity as from that point. Your Honour, the

15 trial should have stopped, at the very latest, on the

16 8th of May. And, Your Honour, furthermore, Article 136

17 of the Constitution requires that the Vice-President

18 take office on that date and hold office for exactly

19 four years. Now, on the issue of the agreement that

20 was made, clearly it shows a consciousness on the part

21 of the Tribunal that there was a real problem here,

22 and --

23 JUDGE BENNOUNA: [Interpretation] Mr. Murphy,

24 you have read to us Article 13 of the Statute.

25 MR. MURPHY: Oui.

Page 669

1 JUDGE BENNOUNA: [Interpretation] Very well.

2 Mr. Murphy, you told us actually you read the Article

3 13 of the Statute, which says that the Judges have to

4 possess high moral standards and have appropriate

5 qualifications in order to be nominated to the highest

6 positions. However, this article has nothing to do

7 with the separation of powers. It simply means that

8 such a person, that is, such a Judge, has to have

9 certain qualities in terms of ethical qualities and

10 integrity, so these have to be persons who have the

11 necessary qualifications in order to be nominated to

12 the highest judiciary positions in their respective

13 countries. So this is a criterion from which both

14 their moral and professional qualities can be

15 assessed.

16 This article also speaks to their appointment

17 to the highest positions in the country, and this is

18 what you're referring to when you say that Madam

19 Odio-Benito -- the fact that Madam Odio-Benito was

20 appointed to the position of Vice-President was in

21 violation of Article 13. However, to me, Article 13

22 speaks more to the moral and professional qualities

23 which have to be fulfilled by any judge in order to be

24 appointed or elected to this kind of position.

25 So this is my question to you, Mr. Murphy:

Page 670

1 Could there have been a confusion between the issue of

2 the separation of powers where Madam Odio-Benito had a

3 conflict between being elected to the position of the

4 highest judiciary position in her country and the seat

5 of a sitting Judge in this Tribunal? So was there an

6 incompatibility between these two appointments? And

7 can you please answer this question and clarify the

8 matter for me.

9 MR. MURPHY: Your Honour, yes, I can.

10 Of course, the Article 13 does directly

11 address both the moral and ethical qualifications to be

12 a Judge, and the legal qualifications, in terms of

13 being experienced in the field of criminal law or

14 international law. And if that were the only

15 qualification, then Article 13 could have stopped at

16 that point. There really would be no purpose in

17 introducing an entirely separate provision that

18 requires the ability to be admitted to practice before

19 the highest court.

20 And, Your Honour, with respect, it is my

21 submission that that provision is related to the

22 separation of powers. Not in the same way as a

23 national law system, obviously we are not dealing here

24 with a case in which Madam Odio-Benito was trying at

25 the same time to be both Vice-President and a member of

Page 671

1 the Supreme Court, that was not what was going on, but

2 in the adaptation of that principle to an International

3 Tribunal. It laid down the rule that there should be a

4 separation between the judiciary of the Tribunal and

5 any other branch of government of any of the Member

6 States.

7 The reasons for that, Your Honour, are, in my

8 submission, very cogent, because the appearance of

9 fairness demands a separation between the independent

10 judiciary of this Tribunal and the possibility of

11 political activity in the affairs of a Member State of

12 the United Nations, and that's the importance of this.

13 Does that answer Your Honour's question?

14 JUDGE BENNOUNA: [Interpretation] Thank you,

15 Mr. Murphy.

16 MR. MURPHY: Your Honours --

17 JUDGE NIETO-NAVIA: Sorry, Mr. Murphy. May I

18 ask something?

19 MR. MURPHY: Yes, Your Honour.

20 JUDGE NIETO-NAVIA: I agree with you that the

21 separation of powers is a general principle of law. I

22 think that we are not disputing that. But I would like

23 to know how do you apply that principle to this

24 Tribunal; not in general, in concrete to this

25 Tribunal. I wonder, how can this Tribunal be affected

Page 672

1 by the executive power of Costa Rica, in concrete.

2 MR. MURPHY: Your Honour, Costa Rica was and

3 of course is a member of the United Nations. I'm told

4 by counsel, Your Honour, I've just been handed a note

5 that at the time, Costa Rica was also a member of the

6 Security Council, which was -- if true, would mean that

7 that state had direct political and administrative

8 control over the affairs of this Tribunal.

9 Now, Your Honour, the appearance of that --

10 let me not even address the question of fairness per se

11 but the appearance of fairness to any accused resides

12 in the complete independence of the judiciary, and, of

13 course, that is dealt with in a number of ways by, for

14 example, by the rule that no one country may be

15 represented on the Bench by more than one Judge and so

16 on. Your Honour, that is a very important principle.

17 And we don't contend, Your Honour, that there

18 was any activity on the part of the state of Costa Rica

19 which influenced the present case in any way. That's

20 not the argument. The argument is that as a matter of

21 overriding principle and as enshrined in the Statute of

22 this Tribunal itself, it is required that there be

23 separation between the judiciary and the other branches

24 of government in any of the Member States. This is not

25 an allegation that anything actually happened, it's

Page 673

1 simply an assertion that there must be complete

2 independence of the judiciary, as Your Honour, if I may

3 say so, eloquently wrote in the opinion that I've

4 referred to. And, Your Honour, it is a matter which,

5 in my submission, is so fundamental that really there

6 are no exceptions to it at all. And we're faced with

7 the fact here that Judge Odio-Benito was, in fact, the

8 vice-president.

9 Let me just add this: Your Honours have a

10 couple of newspaper reports. I don't place great

11 weight on those. In fact, Your Honours, I would really

12 say just this: that one understands the position in

13 which the vice-president must have been, and it was

14 almost inevitable that she would have had to -- she

15 would have been called upon by the president to perform

16 some kind of function. It was an impossible position,

17 and she should never have been put in that position.

18 So I don't rely on those reports as being of great

19 weight but if anything, I use them to illustrate my

20 contention that this agreement was completely

21 ineffective to solve the problem that had been

22 presented.

23 JUDGE HUNT: May I interrupt as well, seeing

24 that you've had a number of interruptions. Your point,

25 as I understand it, is that because Judge Odio-Benito

Page 674

1 became part of the executive power of Costa Rica, she

2 was thereby not qualified for appointment of the

3 highest judicial offices of Costa Rica.

4 MR. MURPHY: Yes.

5 JUDGE HUNT: May I suggest to you that may

6 not have been the intention of the Security Council

7 when it brought the Statute in, to act as a

8 disqualification. You see, at the time when

9 Judge Odio-Benito was originally elected as a Judge to

10 this Tribunal in 1993, she was at that very time the

11 Minister for Justice, and this is stated in the United

12 Nations' own documents.

13 At the time the Security Council did its

14 cull, if that's the right word, to reduce the number of

15 candidates, one imagines that one of the things they

16 checked were the qualifications. And as you point out,

17 Costa Rica was then a member of the Security Council

18 anyway. So as part of her curriculum vitae,

19 Judge Odio-Benito showed that she was, at that very

20 time, the Minister for Justice. In fact, according to

21 her next curriculum vitae, she didn't resign from that

22 position until 1994, and yet the Security Council put

23 her forward to the General Assembly as an appropriate

24 candidate for office.

25 That's one thing I want to draw to your

Page 675

1 attention. Another is this: Many countries have age

2 qualifications to be a Judge of the highest court in

3 the land. My predecessor in this Tribunal, Sir Ninian

4 Stephen, was aged 70 when he was elected as a Judge of

5 this Tribunal. At that time, he was qualified for

6 appointment to at least one court of the highest nature

7 in Australia, and that was the Supreme Court of New

8 South Wales, which has an age limit of 72. By the time

9 he had concluded his appointment of four years, he was

10 74 years of age. So he was no longer, at that stage,

11 qualified for appointment to the highest judicial

12 offices in Australia, and yet they put him forward as a

13 Judge who was suitable for and qualified as a candidate

14 for election.

15 It seems that this supports what Judge

16 Bennouna is saying, that all they're interested in

17 there is, that the person is somebody who would have

18 been appropriately appointed to as a Judge of the

19 highest courts of that particular country and that

20 nothing further was of any interest to them.

21 JUDGE RIAD: To add to the question of Judge

22 Hunt. Perhaps that will help your reflection, because

23 you refer to Article 13. I will go even further and

24 grant you that Article 13 requires that he would be

25 having the qualifications for appointment to the

Page 676

1 highest judicial office. According to Mr. Batalla's

2 expert opinion, when asked exactly the same question,

3 perhaps you mentioned when asked: "Would the

4 magistrate continue to be a magistrate and that the

5 election as vice-president is a nullity?" And the

6 answer on page 5: "The magistrate would continue to be

7 magistrate and the election as vice-president would be

8 null."

9 Of course, it is the problem in Costa Rica.

10 As far as he was concerned, he continues to be

11 magistrate, and then even according to your

12 interpretation of Article 13, he fulfils the

13 requirement.

14 MR. MURPHY: Your Honour, yes. May I answer

15 Judge Riad's question first, Your Honour, because I

16 think I can do that quite briefly.

17 It's true, Your Honour. That was the part of

18 the opinion that I referred to earlier where Senor

19 Batalla prefaced that remark by saying that in

20 practice, such a thing was impossible to happen. And

21 at a later stage of his opinion, he also says that a

22 magistrate who even offered himself as a candidate for

23 election to the executive branch would be guilty of an

24 offence under the law of Costa Rica, and, Your Honour,

25 for that reason, clearly that would be a situation in

Page 677

1 terms of domestic law that would be very unlikely to

2 happen.

3 Your Honour, let me give Your Honour a short

4 answer, and perhaps I can resume after lunch with a

5 longer one. The short answer would be that there is a

6 distinction being made between cases in which, for

7 example, the age of the Judge becomes a factor and

8 where the Judge becomes disqualified for reasons rather

9 more substantive than that.

10 Of course, Your Honour, in Sir Ninian

11 Stephen's case, one can only think that the Tribunal

12 was greatly honoured to have that distinguished Judge

13 present, but, Your Honour, in reference to the question

14 of disqualification all in all, the disqualification

15 based on political office comes from a very different

16 premise than from the personal situation of a Judge in

17 terms of age. And, Your Honour, it may be that in

18 regard to Judge Odio-Benito I need to withdraw my

19 concession that she was eligible at the time of

20 appointment, but I would say that probably, Your

21 Honour, the situation was this: I'm sure that she did

22 in due course resign as Minister of Justice, and I have

23 know doubt that had she not done so, some question

24 would have arisen about the propriety of her

25 continuing.

Page 678

1 JUDGE HUNT: But as a Minister for Justice

2 she was not eligible, on your argument, for election as

3 a Judge of the Supreme Court of Costa Rica.

4 MR. MURPHY: Your Honour, that's right.

5 JUDGE HUNT: Well, now, we've interrupted you

6 for the last 15 minutes, and it may be that you were

7 going to finish within the hour. How long do you think

8 you'll be? We're starting having to look at what's

9 going to happen in the future, you see.

10 MR. MURPHY: Your Honour, the other two

11 grounds I don't think I'll be very long at all.

12 Probably about 20 minutes, I would think.

13 JUDGE HUNT: That's all right. It may be

14 that we might have to sit on just a little bit later

15 this evening to finish. I'll talk to the people who

16 matter and whose conditions of service are important,

17 rather than ours, but it may be we'll have to sit on a

18 little bit later.

19 MR. MURPHY: Your Honour, I will do my best

20 to speed it up, I promise.

21 JUDGE HUNT: Thank you. We'll adjourn now

22 until 2.30.

23 --- Luncheon recess taken at 1.00 p.m.



Page 679


2 --- On resuming at 2.31 p.m.

3 JUDGE HUNT: We're very grateful to the

4 assistance of those who translate and type. We will be

5 sitting on till 6.00 in the second session this

6 afternoon.

7 Yes, Mr. Murphy.

8 MR. MURPHY: Your Honour, I will move ahead

9 as quickly, then, as I can. May I just take a moment

10 to try and answer the question that Your Honour posed

11 to me just before lunch.

12 Your Honour, so far as I indicated, so far as

13 Judge Odio-Benito is concerned, being the Minister of

14 Justice, I feel compelled to say that in my submission,

15 it would only have been proper for her to be elected

16 and confirmed as a Judge on her undertaking to resign

17 that office on her appointment.

18 JUDGE HUNT: But on your argument, she wasn't

19 eligible in the first place, so they could not even

20 have put her forward for candidature here.

21 MR. MURPHY: Your Honour, technically that

22 may be true, but I would assume that it would be

23 acceptable if she gave an undertaking to resign at the

24 moment when her judicial term commenced.

25 JUDGE HUNT: Well, that may be so from the

Page 680

1 point of view of independence, but we're talking about

2 eligibility here.

3 MR. MURPHY: Well, Your Honour, you may well

4 be right. And I would just make this additional point,

5 Your Honour. My learned friend Mr. Moran drew my

6 attention over lunch to a case that he had cited in his

7 brief, Hatton versus Raines, in which -- and of course,

8 I cite this as a matter of national law which depends

9 on national provisions, but it is to some extent useful

10 because it does show that there may be cases where a

11 judge, for example, reaches a certain age and has to

12 retire at that point, notwithstanding the fact that he

13 may be in the middle of a case or engaged in his

14 judicial duties. And I would draw this distinction, of

15 course as I myself am only too much aware, advancing

16 age is an involuntary thing over which we have no

17 control.

18 And it may be in the case of Sir Ninian

19 Stephen, for example, the Security Council could,

20 without any difficulty, extend his term of office to

21 complete a case in which he might have been involved,

22 as indeed was done with the Judges in the Celebici case

23 as their terms of office ended.

24 JUDGE HUNT: You seem to be accepting the

25 Prosecution's argument about the effect of the

Page 681

1 extension. I don't think you meant to do that.

2 MR. MURPHY: Well, I will come to that point,

3 Your Honour. But in the case of Judge Odio-Benito,

4 this was not an involuntary becoming disqualified; it

5 was a voluntary act on the Judge's part. And I would

6 note this, Your Honour, that in addition to becoming a

7 member of the executive branch of government in Costa

8 Rica, she also became a member of the executive branch

9 of government in relation to this Tribunal, because if

10 Costa Rica was indeed a member of the Security Council,

11 and indeed, just by virtue of its status as a member of

12 the United Nations, she was, in fact, in an executive

13 capacity vis-a-vis this very Tribunal. And Your

14 Honour, that's where the true problem arises here, and

15 no action by the Security Council could have really

16 solved that particular problem.

17 And I think the -- I would submit that there

18 are two things really that indicate that the Tribunal

19 itself accepts the appellant's view of the law here.

20 One is that President Cassese, of course, having

21 realised that the terms of office of the Judges were

22 due to expire in November 1997 and that the trial would

23 not be over by then -- as Your Honours know, we've got

24 the documentation in evidence -- wrote to the

25 Secretary-General and said, "Please have the terms of

Page 682

1 office of the Judges extended." The Secretary-General

2 prepared a report to that effect and it was endorsed by

3 the Security Council in Resolution 1126.

4 On the Prosecution's argument, none of that

5 was necessary, because if the Judges were qualified to

6 sit at the beginning of the trial, they must have

7 continued to be eligible. And of course, now the

8 Prosecution then says, "Well, the effect of all that

9 was not really to extend the terms of office of the

10 Judges anyway, despite the clear wording of the

11 document," which is, in my submission, completely

12 unambiguous.

13 The Prosecution says, "Well, that's really

14 not what the Security Council did. They created this

15 extraordinary state of being Judges, but not Judges of

16 the Tribunal." And in all candour, Your Honours, I

17 would love to adopt that argument, and seriously

18 considered doing so, because if the Court accepted that

19 argument, that frankly is the end of this appeal,

20 because these accused were tried by three persons who

21 were not Judges at all. But since I do not think that

22 the Court will accept it, I continue to maintain that

23 what happened was what was stated on the face of the

24 documents; namely, that at the request of the President

25 and the Secretary-General, the Security Council did

Page 683

1 indeed extend the terms of office of the Judges until

2 the end of the case.

3 The second thing that happened, which I think

4 shows that the Tribunal knew that there was a problem,

5 was the agreement itself. If they didn't have a

6 problem with Judge Odio-Benito being vice-president,

7 why was it ever necessary to enter into any form of

8 agreement at all? And the short answer is that, both

9 from a constitutional point of view and from the point

10 of view of fairness to the accused, the Tribunal

11 recognised quite rightly that something had to be

12 done. My submission is that what was done was not

13 sufficient to cure the problem.

14 Your Honour, unless there are any questions

15 on this ground, I will now move to the third ground of

16 appeal.

17 JUDGE HUNT: You proceed. Thank you.

18 MR. MURPHY: Thank you, Your Honour. Your

19 Honour, I will say very little about this. I know my

20 friend Mr. Morrison has one or two observations also.

21 This ground of appeal refers to the fact, which is not

22 disputed, that Judge Odio-Benito was a member of the

23 board of trustees of the UN Fund for Victims of Torture

24 throughout the term of the trial, and in our respectful

25 submission, this situation is analogous to the case

Page 684

1 that we cited in our brief, the Pinochet case, which

2 the Court has a copy of, decided by the House of Lords

3 in England. The facts are almost exactly the same, and

4 there are only two matters that I would like to address

5 very briefly.

6 The first is that the Prosecution, I think,

7 contends that because in that case Amnesty

8 International had intervened in the proceedings, that

9 added an additional force to Lord Hoffman's

10 disqualification. However, when we review the speeches

11 of Their Lordships, we find that while Amnesty

12 International was an intervenor, while an important

13 point in bringing to light Lord Hoffman's

14 disqualification, was not the ratio of the case at

15 all.

16 The ratio of the case was that any time a

17 judge has such a conflict of interest arising from a

18 cause in which the judge is actively involved, he must

19 make a full disclosure and a positive disclosure of

20 that fact, and in the absence of a full and informed

21 consent by the accused, he may not proceed to act as a

22 judge, and that's what the case was about.

23 The facts are strikingly similar. Lord

24 Hoffman was engaged in activities very similar to those

25 of Judge Odio-Benito. He was, effectively, a director

Page 685

1 of a fund-raising corporation which raised money for

2 Amnesty International. It was never suggested that he

3 played any part in political activity regarding Senator

4 Pinochet, it was not suggested that he had any actual

5 bias to anyone in the case, but the fact of the matter

6 was that from the appearance of fairness, clearly he

7 did have a conflict of interest, which the House of

8 Lords subsequently said in so many words.

9 And the second thing, Your Honour, and I

10 appreciate that of course Judge Odio-Benito's

11 involvement with the fund was available in documents

12 issued by this Tribunal, but by parity of reasoning,

13 Lord Hoffman's directorship of the corporation was a

14 public record in England which anyone was entitled to

15 inspect, and the Senator's advisors could have found

16 out that information if they had chosen or been

17 informed enough to do so.

18 House of Lords said that none of that

19 mattered. The point was that there must be a positive

20 disclosure. Your Honour, no disclosure was made by

21 Judge Odio-Benito in this case. And yet one has to

22 remember that the House of Lords emphasised it is not

23 necessary to show any actual bias. We do not, for a

24 moment, suggest that there is evidence that

25 Judge Odio-Benito displayed actual bias towards Landzo

Page 686

1 or the other appellants. The fact of the matter is if

2 there is a reasonable apprehension of bias.

3 Now, Landzo was charged with offences that

4 clearly involved torture, and from point of view, there

5 was a reasonable apprehension of bias, and the law, as

6 stated by Pinochet, is very clear, that the

7 disqualification in these circumstances is automatic.

8 There does not have to be any inquiry further to that

9 fact.

10 I just add this, Your Honour, and very

11 briefly, because I think we refer to it in our brief,

12 but in my submission, when a person accepts the office

13 of a judge, it does place some limitations on otherwise

14 praiseworthy activities that that person may have

15 otherwise engaged in. Judges, with respect, do have an

16 obligation to set themselves apart in some manner from

17 the political fray and the activism on behalf of

18 causes, however praiseworthy those causes may be,

19 because the judicial office requires a degree of

20 impartiality which is not compatible with the kinds of

21 activities in which the Judge and Lord Hoffman were

22 engaged.

23 Your Honour, I know my learned friend

24 Mr. Morrison has other matters on that, so unless there

25 are questions, I will move on.

Page 687

1 JUDGE HUNT: There is one. Article 13 talks

2 about the qualifications of judges in very general

3 terms.

4 MR. MURPHY: Yes.

5 JUDGE HUNT: They should have experience in

6 criminal law, international law, including

7 international humanitarian law and human rights law.

8 MR. MURPHY: Yes, Your Honour.

9 JUDGE HUNT: And obviously the torture

10 organisation is one which falls within those phrases.

11 MR. MURPHY: Yes.

12 JUDGE HUNT: It seems to be strange that

13 something should be both a qualification and

14 disqualification at the same time.

15 MR. MURPHY: Well, Your Honour, that's

16 exactly what it is, because certainly the fact that the

17 Judge had that association was a qualification for her

18 judicial office, but what we're saying is that at the

19 time when she became a judge, however, she stepped into

20 a very different role. And certainly with the benefit

21 of that, one could say, Your Honour, equally that a

22 very valuable qualification to be a judge of the

23 Tribunal would be to have prosecutorial experience in

24 another jurisdiction where one had perhaps prosecuted

25 crimes of violence, murder. That would be certainly a

Page 688

1 very valuable qualification, but of course one couldn't

2 continue with that as well as being a judge. And, Your

3 Honour, the problem arises where a judge is engaged in

4 some form of activism off the bench which has conflict

5 with the kinds of cases being tried.

6 Of course, by definition in this Tribunal,

7 the torture was always a recurring subject. Even if

8 the accused are not directly charged with it, it is

9 often involved in the offences. Landzo was convicted

10 of three counts of torture. And, Your Honour, it seems

11 to me with respect, inescapable that in those

12 circumstances there was a reasonable apprehension of

13 bias which rendered the Judge's participation unfair,

14 and for that reason. Your Honour, her disqualification

15 was absolute, and the trial then must be set aside.

16 I will also say, Your Honour, this is quite

17 consistent also with Rule 15(a) of the Rules of

18 Procedure and Evidence, which explicitly say that a

19 judge may not sit on a trial or appeal in any case in

20 which the judge has a personal interest or concerning

21 which the judge has or has had any association which

22 might affect his or her impartiality. The Rule goes on

23 to say that it is mandatory for the judge to withdraw

24 in such a case.

25 JUDGE HUNT: If that is true,

Page 689

1 Judge Odio-Benito would have had four years of doing

2 absolutely nothing then.

3 MR. MURPHY: Well, Your Honour, I would

4 regret to say that that may well be the case. And,

5 Your Honour, of course I'm conscious that many -- the

6 Tribunal is in its infancy. Many hard questions are

7 posed by this case, which apparently have not been

8 raised before, but it's the duty of the Court not to

9 shrink from that even though the consequences may

10 indeed be very inconvenient.

11 Unless there are any other question, I'll

12 move to the next ground.

13 Your Honour, the final ground, the infamous

14 fourth ground of appeal, of course, is concerned with

15 Judge Karibi-Whyte. Your Honour, I indicated at the

16 beginning of my submissions that I would have to

17 address the Court in a somewhat direct manner.

18 The Appeals Chamber has seen the extracts

19 tapes that have been prepared, and Your Honours are

20 aware that these extracts tapes are extracts from the

21 videotaped record of the trial, and part of the

22 difficulty, of course, is that the cameras in question,

23 the two cameras which were covering the Presiding

24 Judge, were not trained on him the whole time, and for

25 that reason, we do not have a complete record of the

Page 690

1 Judge's participation in the trial.

2 The Prosecution has sought to make a

3 statistical argument and say, "Well, of the total

4 number of hours that were viewed, we only see the Judge

5 being potentially asleep for X per cent," I think they

6 came up with something like 6 per cent, "and that's not

7 enough."

8 In our submission, Your Honour, the crucial

9 matter here is: What inference does the Appeals

10 Chamber draw about the periods of time when the cameras

11 were not trained on Judge Karibi-Whyte?

12 Now, I mention at the outset, Your Honours,

13 that probably nothing that I would say on this subject

14 will persuade the Court in any manner different from

15 your own observation of this these extracts tapes, but

16 I will say this quite directly: that certainly in my

17 experience it has been matter of surprise to me, almost

18 of unreality, that I would be standing here arguing

19 this point. I really -- I'm not familiar with the

20 practice in the jurisdictions from which Your Honours

21 come, but I do believe that if I had these facts in

22 front of an Appellate Court in England or the United

23 States, I would find it inconceivable that I would be

24 called upon to argue that what you saw in those

25 extracts tapes could possibly be acceptable.

Page 691

1 Again, this was not the Judge's fault, but

2 the situation arose where Judge Karibi-Whyte, for

3 whatever reason, and we really don't know why, was at

4 many times soundly asleep, and many other times,

5 although technically perhaps awake, clearly incapable

6 or not following the proceedings. Speaking in a

7 somewhat incoherent manner, and really not being aware

8 sometimes of his surroundings, having to be awoken by

9 Judge Jan, snoring at times. And, Your Honours, my

10 simple submission on this, and I cannot really --

11 there's nothing else that I can say in argument, but I

12 just make the simple submission that that is completely

13 unacceptable.

14 The Statute of this Tribunal requires that

15 the accused be tried by three judges. The judges, of

16 course, are both judges of the law and of the facts,

17 and in the case of the Presiding Judge, have the

18 additional responsibility of making rulings on evidence

19 and procedure.

20 And when we have a situation like this, first

21 of all, we do not know what view Judge Karibi-Whyte

22 would have taken of the evidence and the law if he had

23 been able to bring his mind fully to bear on it. We do

24 not know what input the Judge would have had in the

25 discussions between the three Judges, what his voice

Page 692

1 would have been in those discussions, and we cannot

2 speculate about that now.

3 But the fact of the matter was that Landzo

4 and the other appellants were entitled to have the

5 full, alert participation of Judge Karibi-Whyte in

6 these proceedings, and they did not get it. And both

7 from the point of view of having an actual fair trial

8 and, just as importantly, the appearance of a fair

9 trial, leaves this Appeals Chamber, in my submission,

10 no alternative but to order that this trial, this case,

11 be retried before a different panel.

12 Now, the one thing that I do wish to address,

13 of course, Your Honour, is the issue as to whether this

14 ground of appeal was waived. Let me just say this:

15 that it is our submission that -- firstly, I think it's

16 common ground that the Rules of Procedure and Evidence

17 did not prescribe any particular procedure for making

18 an objection of this kind, apart, perhaps, from Rule

19 15(f), which has since been repealed, according to

20 which the accused would be entitled to make an

21 application to the Presiding Judge to recommend to the

22 president that a particular judge not continue.

23 Now, in the circumstances of this case, the

24 difficulty was that the Presiding Judge was the judge

25 who would be asked to be removed, and so if we were

Page 693

1 obliged to follow that rule, we would have had the

2 somewhat unedifying position that counsel would have

3 had to address the Judge directly on the issue of his

4 own condition and asked him to write a report to the

5 President concerning himself and a recommendation for

6 his own removal.

7 Your Honour, that, with respect, would not be

8 a realistic position, and certainly from the point of

9 view of an advocate appearing on behalf of an accused,

10 would not be an attractive position in which one should

11 find oneself.

12 Now, the fact of the matter is that the whole

13 rationale behind the idea of waiver, in my submission,

14 is this: That the condition has to be brought to the

15 attention of the Court in such a way that the problem

16 can be remedied while there is still time to remedy

17 it. The simple question is: Was that done? The fact

18 of the matter is that it was done.

19 The Court has the affidavit of Ms. Sinatra,

20 and you know the history of this, but essentially what

21 Ms. Sinatra did was to mention the matter to

22 Mr. Hocking and then to the Registrar in person, Madam

23 de Sampayo, and finally to Judge Cassese. We know,

24 incidentally, that the appellant Landzo, of his own

25 initiative, wrote a letter to Judge Cassese on the same

Page 694

1 subject, and that as a result of that, there was

2 apparently a hearing -- we don't, of course, know

3 exactly what happened, but there was apparently a

4 hearing during which Judge Karibi-Whyte was invited to

5 present his side of the affair, and that as a result of

6 that, it was apparently ruled that the learned Judge

7 could continue.

8 Based on that, Your Honour, I would submit

9 that it cannot be said that there was a waiver, because

10 both the Trial Chamber, in the person of the Presiding

11 Judge, and the Bureau, was fully informed that there

12 was a problem in the courtroom and they had every

13 opportunity to address it, and that really is the

14 purpose of waiver.

15 Now, Your Honour, it may be that in some

16 national jurisdictions there is a rule requiring one to

17 get up and make an objection on the record at the time,

18 but in my submission, not only did Ms. Sinatra take

19 every step to bring this to the attention of the

20 Tribunal, but I would go further, as I did in our

21 brief, and say that given the obviously delicate nature

22 of this subject, she acted in the very highest

23 traditions of the bar in trying to do this in a way

24 where it could have been taken care of without any

25 embarrassment at all.

Page 695

1 And if it had been dealt with at that stage,

2 the inevitable result would have been, at a

3 comparatively early stage of the trial, that the trial

4 would have begun again with a different Judge, and a

5 great deal of expense and inconvenience would have been

6 prevented. The fact that that action was not taken is

7 not the fault of these appellants.

8 And, Your Honour, as a final point I would

9 say that while, of course, the Prosecution is entitled

10 to raise the issue of waiver as a matter of law, I

11 would observe that it is, I think, a generally accepted

12 principle in civilised systems of jurisprudence that

13 there is a particular duty on the Prosecution to see

14 that justice is done. The Prosecutors were present in

15 the courtroom throughout what was going on. They took

16 no action of any kind to attempt to assist or to

17 address the problem. And, Your Honour, to the extent

18 there is any fault in this matter at all, it is at

19 least as much at the door of the Prosecution as it is

20 of anybody else.

21 Your Honour, it gives no one, least of all

22 myself, any pleasure to be on my feet arguing a ground

23 of this kind, but the simple fact of the matter is that

24 fairness, and the appearance of fairness, demand that

25 the Appeals Chamber should not uphold convictions in

Page 696

1 these circumstances.

2 Unless there are any questions, Your Honour,

3 I've concluded my submissions.

4 JUDGE HUNT: Thank you very much indeed,

5 Mr. Murphy.

6 Yes, Mr. Morrison.

7 MR. MORRISON: If it please Your Honour, if I

8 may follow the scheme of Professor Murphy in dealing

9 with all matters at once.

10 A lot of what I might otherwise have said has

11 been said, and I am very conscious of not repeating

12 that which was said in the briefs.

13 One question which may be posed is: Why

14 should an International Tribunal uphold the

15 independence and principles of disqualification of

16 Judges more, perhaps, than a national court, any

17 national court? Well, the answer, it may be

18 simplistic, but it shouldn't be any less; and there is

19 an argument for saying it should be more, and the

20 argument is thus, that this is an ad hoc Tribunal which

21 has been set up to try matters arising out of the

22 conflicts caused by the extremes of national politics.

23 To that extent, questions of politics flow through most

24 of the actions, the hearings, the facts, the

25 determinations of the Tribunal.

Page 697

1 I do not say, nor do I mean to say, or to

2 suggest in any way, that the Tribunal is political.

3 Quite the opposite. What I'm saying is to prove that

4 it is not political, as it has Judges coming from

5 various backgrounds, advocates coming from various

6 backgrounds, it is even more important that laypeople

7 look to the Tribunal and say, "That is a genuinely

8 independent Tribunal comprised of genuinely independent

9 Judges." There is no basis for any suggestion that

10 there is any form of political influence or political

11 consideration given by any of the Judges to any of the

12 determinations. That sense of confidence,

13 international sense of confidence, can only be enhanced

14 by keeping the rules about judicial independence and

15 disqualification pure and undiluted.

16 None of us, defence lawyers, members of the

17 OTP, or anyone else in this Court, and I, with great

18 respect, include all of the Judges of this Tribunal,

19 should be seeking ingenious ways to circumvent this

20 principle. Rather, we should be seeking plain and

21 simple ways to uphold it.

22 I go to the final paragraph of the

23 Prosecution's reply to the appeal briefs -- their

24 appeal brief of the 2nd of July. It's paragraph 1347,

25 and I read part of it. They start thus:

Page 698

1 "Bearing in mind the presumption that Judges

2 are capable of discharging their functions impartially,

3 the Prosecution submits that no basis has been

4 established for concluding that there was a reasonable

5 apprehension of bias merely because one of the Judges

6 was to take up a political appointment upon completion

7 of her duties as a Judge."

8 Divide that into two. The first sentence, or

9 the first phrase, "Bearing in mind the presumption that

10 Judges are capable of discharging their functions

11 impartially." Well, where does that presumption come

12 from? Where does the presumption of impartiality come

13 from? It comes from the golden rule of independence.

14 Judges are seen to be impartial because they

15 are independent. So the very matter that the

16 Prosecution raises is, if not the child, certainly the

17 sister of the presumption of independence and fact of

18 independence. Because you may have a presumption of

19 impartiality, but that can only arise out of a fact of

20 independence. You don't presume independence; you see

21 it. You see it in operation as a living thing, through

22 the acts and the determinations of a court.

23 So yes, of course they're right, bearing in

24 mind that the presumption that Judges are capable of

25 discharging their functions impartially is an important

Page 699

1 foundation judgement of the rule of law and it derives

2 from independence.

3 They go on to say:

4 "The Prosecution submits that no basis has

5 been established, including that there was a reasonable

6 apprehension of bias."

7 It's not the test. Rule 15(A) uses the

8 words, and they're plain words, that there might be --

9 reasonable apprehension might -- I could use reasonable

10 apprehension just as easily, but let's use the words,

11 the unequivocal words, of Rule 15(A). In response to

12 the arguments of Ms. Sinatra, the Prosecution relied

13 upon, inter alia, I quote, "a plain reading of the

14 Statute." Well, the defence rely upon a plain reading

15 of section 15(A).

16 They go on to say:

17 "Merely because one of the Judges was to take

18 up a political appointment upon completion of her

19 duties as a Judge." Well, the pejorative use of the

20 word "merely" is, in my respectful submission,

21 completely misplaced. This is fundamental; this is not

22 mere.

23 Secondly, that phrase is wrong as a matter of

24 fact and as a matter of law and as a matter of common

25 sense. Her Honour Judge Odio-Benito was not to take up

Page 700

1 a political appointment on completion of her duties as

2 a Judge; she already had a political appointment. She

3 was Vice-President of Costa Rica. Had she been asked

4 the straightforward question, "Are you the

5 Vice-President of Costa Rica," the only sensible and

6 accurate answer would have been, "Yes. As a matter of

7 fact and as a matter of law, that's what I am." And so

8 the whole basis of the Prosecution's objection is

9 subject to those fundamental misapprehensions and

10 fundamental flaws.

11 My learned friend Professor Murphy has dealt

12 with the question of the possibility of Costa Rica

13 being a party to the proceedings by virtue of being a

14 member of the Security Council. The Prosecution go on

15 to say there is no suggestion, talking of Costa Rica,

16 it had any interest in the outcome of the case, or that

17 it or any member of its government, or indeed any of

18 its citizens, would be affected by the result.

19 Well, of course there isn't, and it doesn't

20 matter. That's not the test. And they go on to say:

21 "No other basis upon which to conclude that

22 the Judge's impartiality might have been affected was

23 suggest in the other party's appeal briefs."

24 Well, that's a matter of determination, and

25 in fact it's wrong. What is instructive to note is

Page 701

1 that at last we see the word "might" appear, as it

2 appears in Rule 15(A).

3 The issue is not whether there is a

4 presumption of independence. We know there is. The

5 whole point behind judicial independence and

6 disqualification is that nothing should be in place

7 which gives the appearance or apprehension of bias,

8 because that presumption is so vital. If it were

9 otherwise, we wouldn't have Rule 15(A). If Rule 15(A)

10 was meant to say something other than that, which it

11 plainly does, it would say it.

12 These are not rules which have been drafted

13 on the back of a piece of paper by somebody as an

14 afterthought. We all know that the rules that govern

15 this Tribunal were thought about in detail, in

16 conference, by lawyers pouring over papers day after

17 day, in the same way that they're now doing for the

18 Rules of Procedure and Evidence for the proposed

19 International Criminal Court, and it is instructive to

20 note that in the draft papers for the International

21 Criminal Court and almost identical provision to Rule

22 15(A) is proposed. Why? Because it is so

23 fundamental.

24 My learned friend Mr. Murphy alluded to this

25 suggestion, that as far as the trusteeship of the fund

Page 702

1 against torture is concerned, the active part of the

2 Pinochet decision was that Amnesty International was an

3 intervener in the action. Again, I repeat what my

4 learned friend said, because it bears repetition: That

5 is only part of the dicta in the case. It is not the

6 ratio in the case. When one reads the ratio in the

7 case, it is plain, it is decisive, it is simple. And

8 although Your Honours have before you the entire

9 transcript of that case, it can't go past a submission

10 of this nature without a very short amount of that

11 being read to you.

12 This is out of the report in 2 Weekly Law

13 Reports 1999. This is a quotation of Lord Widgery,

14 Chief Justice of England, in Regina against Altrincham

15 Justices Ex parte and N. Pennington (1975).

16 JUDGE HUNT: When you're reading, remember,

17 you do speed up, and you are causing problems for the

18 translators.

19 MR. MORRISON: I am sorry. I'll slow down.

20 Normally I only read at the speed which I think, and

21 that's usually pretty slow, so I don't know why I'm

22 going faster.

23 "There is no better known rule of natural

24 justice than the one that a man shall not be judge in

25 his own cause. In its simplest form, this means that a

Page 703

1 man shall not judge an issue in which he has a direct

2 pecuniary interest. But the rule has been extended far

3 beyond such crude examples and now covers cases in

4 which the judge has such an interest in the parties or

5 the matters in dispute as to make it difficult for him

6 to approach the trial with the impartiality and

7 detachment which the judicial function requires.

8 Accordingly, application may be made to set aside a

9 judgement on the so-called ground of bias without

10 showing any direct pecuniary or propriety interest in

11 the judicial office of concern."

12 A similar view was expressed by Mr. Justice

13 Deane in Webb against The Queen.

14 "The area covered by the doctrine of

15 disqualification by reason of the appearance of bias

16 encompasses at least four distinct, though sometimes

17 overlapping, main categories of the case. The first is

18 disqualification by interest, that is to say, cases

19 where some direct or indirect interest in the

20 proceedings, whether pecuniary or otherwise, gives rise

21 to a reasonable apprehension of prejudice, partiality

22 or prejudgement.

23 "The third category is disqualification by

24 association. It will often overlap the first, and

25 consists of cases where the apprehension of

Page 704

1 prejudgement, or other bias, results from some direct

2 or indirect relationship, experience, or contact with a

3 person or persons interested in or otherwise involved

4 in the proceedings."

5 It doesn't get, in my respectful submission,

6 much more comprehensive than that.

7 If the Rule is going to be diluted by way of

8 compromise, where does it stop? That's the question

9 which gives rise to the Rule being pure and absolute,

10 because it can't be answered. Once a rule has been

11 compromised, nobody knows where it's going to stop.

12 This is one of those fundamental principles of law, in

13 our submission, that give rise to a very strong and

14 very definite line being drawn in the sand over which

15 no foot should step. And it's no good to say, "Well, I

16 only stepped over it little bit," or "Nobody's going to

17 notice if I step over it at all," because then the rule

18 has been broken; the judicial oath has been, to that

19 degree, invalidated; and it may be strong language, but

20 I think it's proper language because it was the

21 language that concerned the bar of England and Wales

22 during the Pinochet case, and the judiciary, there is a

23 question of honour and duty.

24 We have between us at the bar and the bench

25 an honour and a duty, and the honour and the duty is to

Page 705

1 be absolutely and completely fair in a pure and

2 undiluted form. Anything less than that is

3 compromise. Anything less than that is seeking an

4 ingenious way around a rule which we all know in our

5 hearts to be the only rule that we can properly work

6 with.

7 Those are my submissions.

8 JUDGE HUNT: Thank you, Mr. Morrison.

9 Now Mr. Yapa.

10 MR. YAPA: I thank Your Honours.

11 I'm reminded of the direction or the reminder

12 that Your Honour, the Presiding Judge, gave us on the

13 repetition of submissions. I've been trying to keep a

14 check on my checklist and the submissions made by my

15 learned friend Professor Murphy and Mr. Morrison, and I

16 should say that some of the submissions, maybe not all,

17 are submissions that have already been made in the

18 recent submissions, and we have responded to them.

19 There are one or two matters in respect of

20 the three issues that were taken up, three issues that

21 have been taken up by my learned friends, on which I

22 should like to make certain submissions.

23 It was interesting and educative to listen to

24 Mr. Murphy on the subject of the fairness of trial,

25 appearance of fairness. Your Honours, what is

Page 706

1 important in a criminal trial is to apply those

2 theories to the facts of a case. It was important, it

3 was really necessary for my learned friend to apply

4 what he stated to what really transpired in this case.

5 On the first ground, that Judge Odio-Benito

6 was elected vice-president of Costa Rica and thereby

7 she disqualified herself from being a judge of the

8 Tribunal, there were a number of questions that were

9 asked and not satisfactorily answered.

10 Now, as it was pointed out in her

11 qualifications that were tendered at the time of her

12 appointment, at the time of her election to the

13 prestigious position of a judge of this Tribunal, she

14 was a member of the executive of Costa Rica. She was

15 the Minister of Justice. So that was one of the

16 qualifications that was in the curriculum vitae. It

17 was placed as the qualification of Judge Odio-Benito,

18 and she was appointed to be elected as a judge.

19 Then there is this question that came up

20 about the constitutional provision in Costa Rica which

21 is there at present. At this stage, I should like to

22 refer to a submission made by my colleague

23 Mr. Christopher Staker on the little disagreement that

24 we have with the appellants, or Mr. Murphy, on the

25 proof of the constitution or the provisions before Your

Page 707

1 Honours.

2 It is -- in respect of the provisions that

3 have been cited by the experts, we have no quarrel. It

4 was stated by Mr. Staker that it may be necessary, for

5 the purpose of formality, that the constitution, when

6 it is introduced, of a national jurisdiction be proved

7 before Your Honours. It is only for that purpose that

8 we stated so. And also, it may be, if we merely agree

9 that it could be placed, it may be a precedent in

10 future cases. It is only for that purpose. But as far

11 as the experts are concerned, in many of the matters we

12 are in agreement.

13 The question that arises is -- now, this

14 submission has been made by Professor Murphy citing the

15 constitutional provision, I think it is Article 161 --

16 132 Sub-article 5. Those are the relevant provisions

17 that have been provided. The question arises -- she

18 was a judge of this court, of this Tribunal. Then the

19 question arises: If this argument is to be applied,

20 logically could she have been appointed vice-president

21 in Costa Rica in terms of those provisions?

22 What is important for us here is that she

23 informed the Plenary, she informed the Tribunal that

24 she was going to accept this position whether there was

25 any objection to the acceptance. Then the further

Page 708

1 undertaking after, when there was no objection, the

2 further undertaking that she gave that she would not be

3 assuming functions as vice-president.

4 That is an important element that has to be

5 taken into account, because we are looking at

6 practical -- a practical situation. It is my

7 submission that in the interpretation of the Rules, in

8 the interpretation of the working of the Tribunal in

9 respect of this matter, that there has to be a

10 pragmatic approach.

11 The learned Judge informed the Tribunal that

12 she would not be assuming functions as vice-president.

13 What does it mean? It goes to the extent of saying

14 that she's nominally a vice-president, she's not

15 functioning as vice-president, but she's continuing as

16 a judge of the Tribunal. That is what matters to the

17 Tribunal. As to whether she could have been appointed

18 vice-president in Costa Rica is another question.

19 If that has to be looked into, then the

20 question arises whether Your Honours are going to

21 interpret the Constitution of Costa Rica, which is not

22 your function. Because anyone could have taken up the

23 objection in Costa Rica -- it is only for purpose of

24 argument I say so -- that she was not qualified or she

25 was not -- she didn't have the qualification to be

Page 709

1 appointed vice-president. It could have been taken up

2 in Costa Rica, but it is with great respect I submit

3 that Your Honours will not go that far, and it is not

4 necessary for Your Honours to look into that question.

5 What matters is she had the qualifications to be

6 appointed a judge of the Tribunal and she was

7 appointed.

8 Now, there was another question that we have

9 in our submissions that we have taken up in respect of

10 this appointment which had not been responded to or

11 replied to by Professor Murphy but it is in the

12 submissions, and I would like, at this stage, to make a

13 reference to it because it adds on to the pragmatic

14 approach that Your Honours should have.

15 The term of service as a judge of the

16 Tribunal of Judge Odio-Benito was coming to an end, and

17 it became necessary to extend the service, to extend

18 the service for one particular reason; so that the

19 Celebici case could be concluded. I say for one

20 particular reason, because the path that was assigned

21 to that Bench was only that. That was the only task

22 that was assigned to her by the Tribunal or the

23 Security Council. That was the only task; that is, to

24 finish the case, finish the Celebici case. It is for

25 that purpose that the term was extended.

Page 710

1 Now, there has been reference, Your Honours,

2 to the term "extension." The term "extension" there,

3 in my respectful submission, the term "extension" has

4 to be read with the other wording in the Resolution,

5 that is, to finish the Celebici case. That is only for

6 that purpose. The term "extension" should not be taken

7 out of context and say that it was an extension as a

8 judge of the Tribunal.

9 So we say -- as an argument, we say that in

10 that situation, in that special situation of the Judge,

11 that the objection that is taken up in terms of

12 Article 13(i) would not apply. They were not members

13 of the Tribunal. 13(i) applies to members of the

14 Tribunal, and the Resolution says on being replaced,

15 being replaced as members of the Tribunal, it is

16 thereafter only -- if I can get on to the Resolution

17 straight away. If Your Honours will bear with me.

18 These words are important. It says:

19 "Endorses the recommendation of the

20 Secretary-General that Judges Karibi-Whyte,

21 Odio-Benito, and Jan, once replaced as members of this

22 Tribunal, finish this Celebici case that they have

23 begun before the expiry of their terms of office."

24 It is in those terms that the Resolution has

25 been worded, and it was in those terms that the term of

Page 711

1 service as judges was extended.

2 There is reference to the term of

3 "extension", or the word "extension", in the letter

4 addressed to the General Secretary of the United

5 Nations, the President of the Chamber, and also the

6 Secretary-General's letter to the Security Council and

7 the General Assembly. I made the submission that the

8 term "extension" has to be read in accordance or in

9 conjunction with the words in the Resolution. So it

10 would mean that they were not, so far as the -- so far

11 as the extension was concerned, they were not concerned

12 as members of the Tribunal. So it was a special

13 situation.

14 JUDGE BENNOUNA: [Interpretation] Mr. Yapa,

15 I'm sorry, I did not get your last sentence. I did not

16 understand the last sentence. [In English] ...

17 extension was concerned, they were not concerned as

18 members of the Tribunal."

19 [Interpretation] Are they still members of

20 the Tribunal or not any more?

21 MR. YAPA: I beg Your Honour's pardon. I was

22 not able to follow your question.

23 JUDGE BENNOUNA: [Interpretation] When you say

24 that, do you mean that the fact that their term of

25 service was extended for the Celebici case? Do you

Page 712

1 mean to say that they are still members of the Tribunal

2 or not?

3 MR. YAPA: Your Honour, in terms of the

4 Resolution, I can go only up to the wording of the

5 Resolution, the Resolution is: "Once replaced as

6 members of the Tribunal, finish the Celebici case." It

7 says "finish the Celebici case they have begun before

8 expiry of their terms of office." So it may mean -- it

9 may mean that -- there it means, finish the trial of

10 the Celebici case.

11 JUDGE HUNT: But as what? I think this is

12 what Judge Bennouna is really after. Are they

13 finishing it as judges of the Tribunal? You say not

14 because they don't have to be qualified to be judges.

15 If you're correct, the Resolution surely would have had

16 to have, at the very least, some deeming provision to

17 make their judgement a judgement of the Tribunal

18 because they are not part of the Tribunal, but it

19 doesn't. Therefore, the judgement they delivered was

20 not a judgement of the Tribunal and it is, therefore,

21 invalid.

22 MR. YAPA: With great respect, my submission

23 was not that they did not continue to be members of the

24 Tribunal , rather, judges of the Tribunal, but their

25 functions were restricted to the Celebici case. That

Page 713

1 was my submission.

2 JUDGE HUNT: Then they are still judges of

3 the Tribunal but their functions are restricted to

4 the --

5 MR. YAPA: Celebici case.

6 JUDGE HUNT: But if they are judges of the

7 Tribunal, they still have to be qualified to be judges,

8 do they not?

9 MR. YAPA: Yes.

10 JUDGE HUNT: Yes, they do. So then what is

11 the point of this further argument of the Prosecution?

12 MR. YAPA: It is in respect of the

13 applicability and also the wording of this Resolution

14 that -- because the Resolution says --

15 JUDGE HUNT: I don't think you've understood

16 my question. Your argument, as I understand your

17 further argument, the additional argument, is that the

18 requirements of Article 13 no longer apply because, as

19 I had understood you to say, they were no longer judges

20 of the Tribunal. Well, now you do say they are judges

21 of the Tribunal but they had limited functions.

22 If were they judges of the Tribunal, would

23 they not have had to have been qualified to be judges

24 of the Tribunal? And I thought you said then yes.

25 MR. YAPA: Yes.

Page 714

1 JUDGE HUNT: Well, then, what is the point of

2 this additional argument? Because it is exactly the

3 point that the Defence has taken.

4 MR. YAPA: Yes. But it is -- Your Honour

5 will be pleased to see the qualification we're speaking

6 of is a qualified qualification. It is a qualified

7 qualification. That is my submission.

8 JUDGE BENNOUNA: [Interpretation] Mr. Yapa, if

9 I may take the liberty of stating what I think is the

10 truth. I think that through this Resolution -- what

11 happened is that, through this Resolution, the Security

12 Council decided that rather than having these judges

13 being elected to sit on the Tribunal as provided for in

14 the Statute, they decided that their term of office

15 would be extended beyond the four years on decision --

16 after a decision of a Security Council in order to sit

17 on the Celebici trial. It's only the way of appointing

18 them, the mode of appointment that is changed here.

19 They were not elected. It was in a decision of the

20 Security Council. In my opinion, that's the effect of

21 this Resolution, the Resolution you've quoted to us.

22 As for the rest, they have to respect exactly

23 the same requirements, moral requirements, professional

24 requirements, as all the other judges, because they

25 have to try accused defendants and to render a

Page 715

1 judgement.

2 MR. YAPA: I thank you, Your Honour. I bow

3 to Your Honour's opinion.

4 JUDGE HUNT: Perhaps you better go on with

5 your points, Mr. Yapa.

6 MR. YAPA: I thank you.

7 Yes. On the next ground that is in respect

8 to membership of the United Nations Voluntary Fund for

9 Victims of Torture, the submission has been right along

10 of Professor Murphy or in the situations made on behalf

11 of Mr. Landzo, is that the case is similar or more or

12 less identical to the Pinochet case that was decided in

13 England. We have taken up the position that it is not

14 identical, that it can be distinguished for very valid

15 reasons.

16 In the Pinochet case, the House of Lords in

17 England looked at the question in two ways. In respect

18 to Lord Hoffman, it was stated -- in analysing the

19 facts of Lord Hoffman's association with Amnesty

20 International, there were two criteria that the House

21 of Lords mentioned. Firstly -- these were two aspects

22 that were considered -- whether -- where a judge is a

23 party, in fact a party to the litigation or has

24 relevant interests in its outcome, in which case the

25 disqualification is automatic. Certainly, they looked

Page 716

1 into another respect where a judge is not a party to

2 the suit and does not have a relevant interest in the

3 outcome but in some other way the judge's conduct or

4 behaviour may give rise to a suspicion that he or she

5 is not impartial.

6 Now, what is important is when you try to

7 draw a parallel between that case and this case, it was

8 stated in that case that Lord Hoffman, who was the

9 Judge of the House of Lords which decided that case, as

10 stated was disqualified because he was party to the

11 case, because he was a party to the case.

12 Now, they looked into the way in which the

13 particular judge was a party to the case. He was a

14 director of an affiliated association of Amnesty

15 International. Further than that, he had appeared as

16 counsel for Amnesty International on an earlier

17 occasion. Then they looked into the aims and purposes

18 of Amnesty International and held -- one more matter.

19 Amnesty International was permitted to intervene in the

20 case, intervene in the case that was heard before the

21 House of Lords.

22 So there was a situation where the judge

23 presiding had a party before him with whom he had a

24 close association, and he had an interest in what was

25 being pursued by that party. So to that extent they're

Page 717

1 saying this is an instance where the judge is

2 automatically disqualified. It was a very, very high

3 standard that was adopted by the House of Lords in that

4 case.

5 Now, what is important here is in drawing a

6 parallel, it must be shown, it must be shown by

7 Judge Odio-Benito being a member of the board of

8 trustees of the fund, of the particular fund, if

9 Pinochet is to be brought in, that he was a party, that

10 he had that interest to extent to be disqualified. The

11 mandate has been cited. The mandate of the fund is

12 before Your Honours. If one examines that, what was

13 the purpose of the fund? To provide assistance to

14 victims of torture, victims of torture. That is the

15 only, only relevance of the subject of torture to this

16 case. He was there as a director or a member of the

17 board of trustees.

18 If I may say so, it is a remote connection, a

19 remote connection which should have no influence

20 whatsoever on the outcome of the case, or he would not

21 have any interest on the outcome of the case.

22 What has been attempted to, if this is taken

23 to the logical conclusion, what has been attempted to

24 do is keep judges away from mundane affairs; to keep

25 them cloistered in ivory towers; that they do not have

Page 718

1 anything to do with interests that -- common interests

2 that people have. They have to keep away to a certain

3 extent, and the extent understood, and it is very

4 clearly explained in Pinochet.

5 Mr. Morrison submitted the standard of

6 reasonable apprehension. Again, it is extremely

7 necessary to use that standard to the facts of this

8 case. On what basis can it be said there was this

9 reasonable apprehension, an apprehension for which you

10 could give a reason?

11 So it is my submission, respectful

12 submission, that it cannot be said by the mere

13 membership of the trust fund, by the mere membership of

14 the board of trustees of the fund, that is referred to

15 the UN fund, that Judge Odio-Benito was disqualified.

16 And one other matter, at the time of her

17 election this was stated. Even at that stage, that was

18 one of her qualifications or how she described herself,

19 that she was a member of the board of trustees, and she

20 was elected. And it goes counter to my learned

21 friend's argument to say that up to the 8th of May,

22 1998, she was qualified in every way to continue as a

23 judge of the Tribunal. That's something that my

24 learned friend has stated in his written submissions,

25 that she had the qualifications to continue as a judge

Page 719

1 of the Tribunal.

2 Logically, by reason of argument, then she

3 was not qualified. But she was elected on that

4 qualification, and as whatever qualification that she

5 declared, that she was Minister of Justice, she was

6 elected.

7 So it is my respectful submission that the

8 argument or the submission cannot succeed.

9 I have to make a short submission on the

10 third ground of appeal that has been taken up. I'm not

11 going to make any submissions to Your Honours on the

12 video excerpts that have been provided. They are

13 before Your Honours. They have been examined. But I

14 must mention that on the particulars that were

15 furnished to us, so far as the appellants were

16 concerned, we have examined them and we have provided

17 an analytical survey of all the segments in respect of

18 the time.

19 It may be said statistics will not prove, and

20 it has already been said that we do not know at times

21 when the camera was not on the Judge, not focusing on

22 the Judge, as to whether he slept or not. That is a

23 matter of conjecture what has been produced before Your

24 Honours is to satisfy Your Honours that the Judge slept

25 in certain excerpts from the video recordings that were

Page 720

1 available.

2 But there is an interesting aspect to this

3 question. The appellant complains that there was

4 prejudice, that there was no fairness, that he did not

5 receive a fair trial. Now, from where does this

6 complaint come? From one source. It comes from one

7 source. There were other accused in the case, there

8 was an array of illustrious counsel defending the

9 accused, but there was no complaint, no complaint

10 whatsoever till the last moment that there was this

11 unfairness, that the case could not be presented.

12 So what is the conclusion that can be arrived

13 at? It is our submission, when the excerpts are

14 examined and our analysis in respect of how it affected

15 this particular accused, that is, Landzo, and how the

16 case has been decided as far as the charges against him

17 were concerned, that there has not been any prejudice,

18 that there has not been any unfairness. It is

19 affirmatively proved from what -- the material that has

20 been presented.

21 Those are my submissions. Thank you, Your

22 Honour.

23 JUDGE HUNT: Thank you very much.

24 Mr. Murphy.

25 MR. MURPHY: Thank you, Your Honour.

Page 721

1 Your Honour, regarding firstly the

2 constitutional ground, the second ground of appeal

3 regarding Judge Odio-Benito's election, the phrase

4 again has been used that Judge Odio-Benito was not only

5 the Vice-President of Costa Rica, but the only positive

6 function that the Constitution of Costa Rica imposes on

7 either one of the Vice-Presidents is to stand available

8 to act in the stead of the president should it be

9 necessary.

10 If during the trial -- and providence be

11 thanked, this did not happen -- some assassin had been

12 successful in killing both the President and the First

13 Vice-President of Costa Rica, Elizabeth Odio-Benito was

14 from that moment, ipso facto, the President of Costa

15 Rica, and there's nothing that could be done about

16 that. That was not something that she -- that was not

17 a function that she could agree not to exercise because

18 it arises by matter of the operation of section 135 of

19 the Constitution. Nothing nominal about that at all.

20 She was, in fact, exercising that function,

21 and the Court may feel that, in a way, that that's the

22 only important function of the Vice-Presidency, because

23 the Constitution really doesn't specify anything else.

24 Yes, she may, at the request of the President,

25 undertake other duties, as indeed we know she did in

Page 722

1 relation to being a member of the so-called Board of

2 Mediators, but that the Vice-President could choose to

3 do or not to do. But as regards standing in the place

4 of the President, that was a function that devolved

5 upon her from the moment she took the oath, and that

6 was not nominal in any sense of the word.

7 It may be, Your Honour -- I'm not sure --

8 that where the Prosecution has now abandoned the

9 argument that the Judges were not members of the

10 Tribunal, all I can say about that is, Your Honour,

11 again to say that if that is their submission, and if I

12 have procedural power to do so, I'd move for summary

13 judgement on the hearing of the appeal.

14 JUDGE BENNOUNA: [Interpretation] Professor

15 Murphy, just a little precision that I need on what you

16 have just said and on the fact that Ms. Odio-Benito was

17 Vice-President of Costa Rica.

18 Earlier on in the afternoon you said,

19 speaking about Judge Karibi-Whyte, that in view of Rule

20 15, there cannot be a waiver, and you said, that is

21 your argument, that there had been no waiver, so we

22 cannot reproach you not to have mentioned that

23 argument. But during trial, was it mentioned that the

24 post of Judge Odio-Benito as Vice-President of Costa

25 Rica had become something which forbade her to sit as a

Page 723

1 Judge on the trial? Was it said during the trial that

2 it was something that was incompatible with her mandate

3 of Judge of the Tribunal? Or did you say something

4 that was the other way around: The fact that she was a

5 Judge precluded her from being the Vice-President of

6 Costa Rica? Was that question ever put during the

7 trial in order to impeach the Judge during the trial?

8 MR. MURPHY: Yes, Your Honour, it was. In

9 fact, a motion was made which was considered by the

10 Bureau when it became known that the situation had

11 occurred. And Your Honour, I was not at the trial, so

12 I'm just going on the papers that were filed. But yes,

13 indeed, that point was made.

14 I should say, in fairness to the Bureau, that

15 the main point that was argued in the motion was the

16 one of judicial independence, and it may be that part

17 of the reason why the Bureau may perhaps not have

18 appreciated fully what the situation was was that it

19 was argued more in terms of judicial independence under

20 Rule 15. But if Your Honour looks at the papers in

21 that motion, yes, it was brought to the attention of

22 the Bureau that she was disqualified, and I'm told that

23 that was filed in May of 1998, Your Honour, before

24 the --

25 JUDGE BENNOUNA: [Interpretation] And did the

Page 724

1 Bureau come to a decision?

2 MR. MURPHY: Your Honour, they did, and they

3 decided that in light of the Judge's undertakings not

4 to undertake any activities, it would be permissible

5 for her to continue as a Judge.

6 JUDGE BENNOUNA: Very well, then. Did you

7 challenge the Bureau's decision at that time?

8 MR. MURPHY: I don't believe there were any

9 further proceedings, Your Honour. May I just confer

10 with counsel who was there at the time?

11 [Defence counsel confer]

12 MR. MURPHY: Your Honour, I'm told that the

13 decision was not rendered until after the trial had

14 been concluded.

15 JUDGE BENNOUNA: [Interpretation] Thank you.

16 MR. MURPHY: So far as the next ground is

17 concerned, Your Honours, regarding the membership of

18 the board of the Fund, I think the Court has clear the

19 difference between the Prosecution and ourselves on

20 that point. I needn't perhaps belabour it. Although

21 I'm grateful to Mr. Yapa for reminding us of the

22 mandate of the Fund, because when one looks at that,

23 it's clear that it did involve exactly the same kinds

24 of activities as Lord Hoffman was engaged in on behalf

25 of Amnesty International. And as my learned friend

Page 725

1 Mr. Morrison showed, the true ground of decision was

2 not that Lord Hoffman was a party in the sense that he

3 was a litigant, but that he was associated very closely

4 with the party because of identity of interest. I'm

5 sure the Court has that point.

6 And, Your Honour, if I need to respond to

7 this, Mr. Yapa, if I understood him correctly,

8 indicated that these two grounds of appeal were

9 mutually inconsistent. Let me just point out that it

10 is possible to advance alternative grounds of appeal.

11 We do, of course, allege that the disqualification of

12 Judge Odio-Benito on the ground of her membership of

13 the Fund would have dated from the very beginning of

14 the trial, but what we say, obviously, is that even if

15 we are wrong about that, she became disqualified on

16 other grounds with effect from the 8th of May, 1998, at

17 the latest.

18 And also, although I take Mr. Yapa's point

19 that one should not cloister judges in ivory towers, I

20 do submit that to some extent they must be cloistered

21 in the courtroom.

22 On Judge Karibi-Whyte, Your Honour, first of

23 all, I don't agree with Mr. Yapa when he says that this

24 was raised at the last moment. The evidence is quite

25 clear that it was in fact raised, at the latest, in

Page 726

1 August of 1997.

2 Mr. Yapa also says that it's a matter of

3 conjecture as to whether the Judge was sleeping during

4 those periods of time when the cameras were not trained

5 on him. Your Honour, it's not a matter of conjecture;

6 it's a matter of evidence, of inference. We have

7 presented evidence, if the Court accepts it, that the

8 Judge was sleeping on a very large number of days

9 during the entire length of the trial, for very

10 substantial periods of time. And if the question is:

11 "What inference is to be drawn about the other periods

12 of time," we have two alternatives.

13 One would be to say that the Judge behaved in

14 those unaccounted for periods in the same ways he did

15 when the cameras were trained on him, and that's the

16 inference that I would suggest would be logical.

17 The other inference is that when the cameras

18 were not on him, the Judge suddenly underwent some

19 miraculous recovery or transformation that the cameras

20 did not capture. Your Honour, I submit that that would

21 be a much less logical conclusion.

22 And the final thing is this: I kept waiting

23 during Mr. Yapa's submissions to hear the Prosecution

24 say that what went on in that courtroom was

25 acceptable. I didn't hear that, and, Your Honour, I

Page 727

1 don't believe anyone in this courtroom would really

2 believe it.

3 And unless there are any questions, those are

4 my submissions.

5 JUDGE HUNT: Thank you very much.

6 Do you want to add anything, Mr. Morrison?

7 MR. MORRISON: Very little, Your Honour. I

8 wasn't one of the illustrious counsel at trial, except

9 at the very latter stages, and I must admit, the title

10 is rather pleasing. The sleeping Judge point was, of

11 course, taken on board by all of the defendants during

12 the course of the motions, as my learned friend says,

13 in August of 1997. The suggestion that it's been

14 raised at the last moment by any one person is simply

15 not supportable.

16 I also waited in vain to hear something, but

17 what I was waiting in vain to hear was some other

18 construction of Rule 15(A) other than the obvious

19 construction:

20 "A Judge may not sit on a trial or appeal in

21 any case which he" which must also mean she, "has a

22 personal interest or concern in which he, or she, has,

23 or has had, any association which might affect his

24 impartiality."

25 There is, in my submission, no intellectual

Page 728

1 way of reading or interpreting that intellectually

2 honest way other than in the straightforward meaning of

3 the words carefully chosen by the drafters. I'm

4 grateful my learned friend didn't attempt to do so. No

5 doubt he is an honest -- no doubt he is an honest man

6 and of great professional integrity. The very lack of

7 attempt to redefine that underscores the integrity and

8 underscores what I said before about honour and duty.

9 JUDGE HUNT: Thank you. The last group,

10 group 8, appeals against sentence. Mr. Staker.

11 MR. STAKER: May it please the Chamber.

12 Before I begin my submissions in relation to this

13 ground of appeal, with the leave of the Bench, I just

14 wondered if I might very briefly clarify one point

15 relating to our submissions on superior responsibility.

16 JUDGE HUNT: We are a little limited. If you

17 really have to put something, could you put it in

18 writing so we can get on with this?

19 MR. STAKER: With your leave, could I take 30

20 seconds?

21 JUDGE HUNT: It's over. Thirty seconds are

22 almost over. You'd better hurry.

23 MR. STAKER: I'm sorry, Your Honour. It

24 simply relates to a passing reference that Mr. Fenrick

25 made to the Queen of the United Kingdom, and

Page 729

1 Mr. Morrison took the point up after a break yesterday

2 to talk about her functions of conferring commissions

3 on members of her armed forces. I just wanted to say

4 that the reference to the Queen of the United Kingdom

5 was intended by Mr. Fenrick merely to be a passing

6 illustration. Our position is that de jure authority

7 by itself is sufficient for superior responsibility

8 even without de facto power, and I just wanted to make

9 that clear, Your Honour.

10 If it pleases the Chamber, I will try to

11 avoid repeating anything in our briefs on the issue in

12 relation to this ground of appeal, given that they are

13 88 pages long.

14 Mr. Mucic, of course, also appeals against

15 his own sentence on the grounds that it was excessive.

16 We appeal on the ground that it was inadequate. So

17 although there are two separate appeals, they are in

18 that sense related.

19 The first matter to mention is the standard

20 of review in an appeal against sentence. We have made

21 submissions on that in our brief, but I would draw

22 attention to the fact that since our brief was filed,

23 we now have some further authorities of this Tribunal

24 on that. In particular, the decision of the Appeals

25 Chamber in the Tadic sentencing appeal, at paragraph

Page 730

1 20. I won't read that paragraph out. The issue then

2 carries over into paragraph 21.

3 There, what the Appeals Chamber applies is

4 what I think we would call a discernible error test.

5 They say that there must be a discernible error in the

6 exercise of the Trial Chamber's discretion in

7 sentencing, and there is a similar reference found in

8 paragraph 73 of that judgement.

9 This discernible error test was applied again

10 by the Appeals Chamber in its judgement in the

11 Aleksovski case of the 24th of March this year, at

12 paragraph 187. We would submit that is now the test

13 for the standard of review in an appeal against

14 sentence.

15 I would draw attention to paragraphs 5.27 and

16 5.28 of our reply brief, where we do make the point that in

17 most national systems there is normally quite a

18 developed body of jurisprudence on sentencing

19 principles. The jurisprudence of this Tribunal at this

20 early stage is still much more limited. It may

21 therefore be that there is slightly greater scope than

22 in some national systems for the Appeals Chamber to

23 establish basic sentencing principles as a matter of

24 first impression, more frequently than would happen in

25 a national system, but we submit that it remains the

Page 731

1 case that the burden is always on the appellant to

2 establish a discernible error. That applies to the

3 Prosecution as much as to the Defence. We accept that

4 the burden is on us in this appeal against Mr. Mucic's

5 sentence, and we submit that we meet that burden.

6 The errors that we submit are found in the

7 sentencing part of the Trial Chamber's judgement in

8 relation to Mr. Mucic are dealt with at length in our

9 brief. The first error, we say, was the failure to

10 give proper consideration to the gravity of the crimes

11 in question.

12 At paragraph 1225, the Trial Chamber said

13 that the gravity of the crime was by far the most

14 important consideration in sentencing. The Prosecution

15 submits that this is a correct statement of basic

16 sentencing principles and that this is now also further

17 supported by subsequent decisions of this Tribunal.

18 Again, in the Aleksovski appeal judgement, at

19 paragraph 182, the Appeals Chamber quoted and endorsed

20 the statement of the Trial Chamber in this case, to

21 which I just referred, and the Appeals Chamber added

22 that:

23 "Consideration of the gravity of the conduct

24 of the accused is normally the starting point for

25 consideration of an appropriate sentence. The practice

Page 732

1 of the International Tribunal provides no exception."

2 In the Aleksovski appeal, the Appeals Chamber

3 in fact did increase the sentence on appeal, having

4 found, and I quote:

5 "………there was a discernible error in the Trial

6 Chamber's exercise of discretion in imposing sentence.

7 That error consisted of giving insufficient weight to

8 the gravity of the conduct of the Appellant and failing

9 to treat his position as commander as an aggravating

10 feature in relation to his responsibility under Article

11 7(1) of the Statute. The sentence imposed by the Trial

12 Chamber was manifestly inadequate."

13 That was paragraph 187.

14 And again in paragraph 182 of that judgement,

15 the Appeals Chamber also quoted and endorsed a passage

16 from the Kupreskic judgement, which stated that:

17 "[t]he sentences to be imposed must reflect the

18 inherent gravity of the criminal conduct of the

19 accused. The determination of the gravity of the crime

20 requires a consideration of the particular

21 circumstances of the case, as well as the form and

22 degree of participation of the accused in the crime."

23 That quote comes from the Kupreskic judgement

24 at paragraph 852.

25 And for completeness, on the importance of

Page 733

1 gravity as a factor in sentencing, I would refer also

2 to the Jelisic judgement at paragraph 121, and the

3 Blaskic judgement at paragraph 765.

4 The question then is whether the Trial

5 Chamber in this case took the gravity of the crime as

6 the starting point in sentence. We deal with this in

7 our brief. We point out that the part of the Trial

8 Chamber's judgement dealing with the sentencing of

9 Mr. Mucic was five full pages long, and it was only in

10 the very final paragraph, paragraph 1252, the last six

11 lines on the last page, that the Trial Chamber added,

12 basically as an afterthought, that it also considered

13 the gravity of the offences.

14 What the Trial Chamber took as its starting

15 point in sentencing, and what occupied the bulk of

16 those five pages, were matters such as the personal

17 circumstances of the accused and the aggravating and

18 mitigating circumstances. The Prosecution submits that

19 to give primary consideration to these factors, and

20 then only to consider the gravity of the crime as an

21 afterthought, clearly involves a discernible error.

22 The Prosecution's submissions on the

23 principles of sentencing to be applied in a case of

24 superior responsibility are set out in our brief,

25 particularly, paragraphs 5.13 to paragraph 5.23. In

Page 734

1 support of that submission, we would now also refer to

2 the Blaskic judgement at paragraph 789, in which the

3 Trial Chamber said that:

4 "When a commander fails in his duty to

5 prevent the crime or punish the perpetrator thereof, he

6 should receive a heavier sentence than the subordinates

7 who committed the crime insofar as the failing conveys

8 some tolerance, or even approval, on the part of the

9 commander towards the commission of crimes by his

10 subordinates, and thus contributes to encouraging the

11 commission of new crimes. It would not, in fact, be

12 consistent to punish a simple perpetrator with a

13 sentence equal or greater to that of the commander."

14 In relation to sentencing of the commander,

15 reference can be made to the practice in the Aleksovski

16 case. It would be our submission that one shouldn't

17 seek to draw simple comparisons between a sentence

18 imposed in one case and a sentence imposed in another,

19 because every sentence will involve unique factors that

20 aren't present in the other case. But it may be to

21 some degree instructive to note that in Aleksovski the

22 accused, who was convicted and sentenced, was also the

23 commander of a prison.

24 The scale and gravity of crimes committed

25 against prisoners in the Celebici camp was, in our

Page 735

1 submission, evidently significantly greater than those

2 in the Aleksovski case. On the other hand, in the

3 present case, unlike Aleksovski, it wasn't suggested

4 that the prison commander was actively involved in the

5 commission of offences. Nevertheless, in the

6 Aleksovski case, on appeal, the sentence was increased

7 to seven years, with an indication given by the Appeals

8 Chamber that the sentence would have been considerably

9 longer but for certain special factors in that case, in

10 particular, the factor that the accused had already

11 been released after the Trial Chamber's judgement and

12 was taken back into custody after some nine months at

13 liberty.

14 If one assumes that in the Aleksovski case

15 the sentence normally would have been higher than seven

16 years and compares that to the sentence in that case,

17 as we say, we can't say that strict comparisons can be

18 drawn, but that may be instructive to a degree.

19 Our brief also deals with the aggravating and

20 mitigating circumstances found by the Trial Chamber in

21 this case, and presents submissions on why they would

22 not justify such a significant reduction of sentence in

23 this case. I won't repeat that.

24 Before moving to the second error we say

25 there is in the Trial Chamber's judgement, would this

Page 736

1 be a convenient moment to break?

2 JUDGE HUNT: Certainly. We'll resume at

3 4.30, and we will be sitting through till 6.00.

4 --- Recess taken at 4.02 p.m.

5 --- On resuming at 4.30 p.m.

6 JUDGE HUNT: Yes, Mr. Staker.

7 MR. STAKER: May it please the Chamber. The

8 second error which we submit is found in the Trial

9 Chamber's judgement is dealt with in paragraphs 5.34 to

10 5.43 of our brief. The error which we submit exists

11 was the failure of the Trial Chamber in sentencing to

12 have regard to crimes committed in the camp other than

13 those for which the accused had specifically been found

14 guilty.

15 The indictment in this case charged superior

16 responsibility for certain specified crimes -- I

17 withdraw that.

18 The indictment in this case charged superior

19 responsibility for various types of crimes committed in

20 the camp. For instance, paragraph 22 charged Mr. Mucic

21 with superior responsibility with respect to murders

22 committed in the camp and then went on to say

23 "including" and then it listed various murders.

24 It's submitted that the use of the word

25 "including" indicates that the allegation wasn't

Page 737

1 limited to the ones specified.

2 We submit there's nothing impermissible in

3 that form of pleading in the sense, Your Honour, that

4 in some cases involving high-level perpetrators, crimes

5 may be charged that involve thousands of victims, and

6 we submit that it is sufficient to allege that

7 thousands of victims were killed or suffered crimes

8 committed against them. We submit it is not necessary

9 to name every individual victim or to conclude that the

10 person charged can only be convicted in relation to

11 those victims that can be identified individually.

12 In this case --

13 JUDGE HUNT: Could I just ask you: Did the

14 Prosecution seek findings in relation to the other

15 murders at the time of the final addresses?

16 MR. STAKER: My friend, I think, has answered

17 that question. We submit, however, that the Trial

18 Chamber made findings to that effect.

19 It also specifically said that it did not

20 regard the unspecified criminal acts as constituting

21 any part of the charges against the accused, and it

22 follows from that that they weren't taken into account

23 in sentencing.

24 JUDGE HUNT: The absence of any submission

25 might have led them to that belief. I would not like

Page 738

1 to remain silent when you say that it was a permissible

2 form of pleading. The illustration you gave would be

3 sufficient, but not this one.

4 MR. STAKER: We submit merely that in

5 sentencing, one factor to be considered would be that

6 in addition to the specific crimes found there were

7 others.

8 The third error in the Trial Chamber's

9 judgement relates to Counts 36 and 37 relating to the

10 inhumane conditions in the camp. The inhumane

11 conditions that were found to exist were held to

12 include deprivation of adequate water, food, medical

13 care, sleeping and toilet facilities, and the general

14 atmosphere of terror. These counts, therefore, didn't

15 relate to specific acts or incidents in the camp but to

16 the overall conditions, and we would submit that as the

17 camp commander, Mr. Mucic must have borne more

18 responsibility for this than his subordinates. And yet

19 it will be seen that the same sentence was imposed on

20 him as was imposed on his subordinates in respect of

21 those counts. We submit the error, which is a

22 discernible error, is the failure to consider his

23 separate responsibility as commander of the camp.

24 The fourth error we say relates to sentencing

25 in relation to Count 48 relating to the unlawful

Page 739

1 confinement of civilians, in relation to this count,

2 Mr. Mucic was found liable under Article 7(1) alone, as

3 indicated in paragraph 5.48 of our brief. The Trial

4 Chamber ignores this fact in its sentencing judgement,

5 we submit, because it concludes at paragraph 1248 that

6 "The criminal liability of Mr. Mucic has arisen entirely

7 from his failure to exercise his superior authority for

8 the beneficial purpose of the detainees in the Celebici

9 prison camp".

10 We also submit, for the reasons set out in

11 our brief, that the Trial Chamber's judgement appeared

12 to reflect a general attitude that the responsibility

13 of Mr. Mucic was purely passive and vicarious, which,

14 in our submission, fails to take adequate account of

15 the fact that his liability under this count was one of

16 a participant under Article 7(1).

17 And also submitted in paragraph 5.51 of our

18 brief, it's submitted that unlawful confinement is a

19 serious offence in many national jurisdictions, and

20 that in the context of international humanitarian law,

21 the unlawful confinement of large numbers of people

22 over a protracted period of time in inhumane

23 conditions, in circumstances in which they're subject

24 to being killed or tortured or otherwise mistreated is

25 obviously a much more serious offence still, and the

Page 740

1 Prosecution submits that the failure of the Trial

2 Chamber to take appropriate account of this involved a

3 discernible error.

4 The fifth error which we submit is found in

5 the Trial Chamber's judgement relates to the fact that

6 the Trial Chamber ordered that all of the sentences

7 imposed were to be served concurrently. This

8 argument's dealt with in paragraphs 5.54 to 5.75 of our

9 brief.

10 The Prosecution acknowledges that the Trial

11 Chamber has a discretion to determine whether sentences

12 are to be served consecutively or concurrently, but the

13 Prosecution submits that a valid exercise of this

14 discretion requires that the Trial Chamber give

15 appropriate consideration to the question. The

16 discretion should be exercised in a principled manner

17 which reflects the aims and purposes of sentencing.

18 We don't deny that examples can be found in

19 judgements of Trial Chambers where sentences are

20 ordered to be served concurrently without any reasoning

21 or explanation being given. This practice has never

22 been challenged on appeal before, but that does not

23 mean that it necessarily constitutes a proper exercise

24 of the Trial Chamber's discretion.

25 In this case, the Trial Chamber gave only one

Page 741

1 reason for making all of the sentences concurrent. It

2 said that in various paragraphs in the indictment, the

3 accused had been charged accumulatively with more than

4 one crime in respect of the same conduct. We submit

5 that this cannot possibly provide any explanation for

6 why sentences arising out of different conduct should

7 necessarily be made consecutive.

8 Our general proposition is that a person who

9 commits multiple crimes as a result of multiple

10 different criminal acts bears graver criminal

11 responsibility than an accused who commits only one of

12 those crimes and that it should be expected that this

13 will be reflected in sentencing. To put it simply, all

14 else being equal, a person who killed -- an accused who

15 killed ten victims would be expected to receive a

16 higher sentence than an accused who killed one victim.

17 As we say in our brief, this doesn't mean

18 that all sentences relating to different conduct should

19 be made completely consecutive. If there are two

20 separate crimes, each of which individually, had it

21 been the sole crime, might have warranted a sentence of

22 20 years, the fact that there were two such similar

23 crimes might lead to a sentence of 22 or 25 or some

24 other period of imprisonment, but it would be greater

25 than it would be if there were only one such criminal

Page 742

1 act to reflect the greater gravity of the accused's

2 overall conduct.

3 Furthermore, even where an accused is

4 convicted of more than one crime in respect of the same

5 conduct, a cumulative conviction of more than one crime

6 for the same conduct, we submit that that doesn't

7 necessarily mean that the sentences have to be

8 completely concurrent.

9 I made mention of this yesterday in relation

10 to our submissions on cumulative convictions, that in

11 certain national legal systems, the maximum sentence

12 for a crime can be increased where that crime, at the

13 same time, constituted another crime as well under the

14 principles of ideal concurrence.

15 In this case, the Trial Chamber imposed a

16 sentence of seven years imprisonment in respect of all

17 of the various crimes in respect of which Mr. Mucic had

18 been found guilty. Thus he received the same sentence

19 that he would have received if he'd committed only one

20 of those various crimes.

21 We submit that in this particular case,

22 making all of the sentences completely concurrent

23 failed to reflect the multiplicity of murders,

24 tortures, rapes, mistreatment, inhuman conditions and

25 unlawful confinements as a whole, and given the

Page 743

1 multiplicity of crimes, the Prosecution submits that

2 there's a discernible error in the sentence.

3 By way of remedy, the Prosecution submits

4 that the Appeals Chamber can revise the Trial Chamber's

5 sentence and substitute a new sentence. This is

6 confirmed by the precedent [Realtime error read in

7 error "president"] of the Aleksovski appeal judgement.

8 And for the reasons given in the Prosecution appeal

9 brief, the Prosecution now seeks a substituted

10 sentence.

11 If I cannot further assist, there are our

12 submissions in relation to this ground of appeal.

13 JUDGE HUNT: Thank you.

14 Mr. Morrison.

15 JUDGE RIAD: Excuse me. Just a mistake. You

16 said -- was it confirmed by the president of the

17 Aleksovski appeal? It's written here: "by the

18 president."

19 MR. STAKER: Precedent.

20 JUDGE RIAD: Precedent. All right. Then

21 just check it. Thank you.

22 MR. MORRISON: Your Honour, first of all, may

23 I tender the compliments and apologies for my learned

24 friend Mr. Kuzmanovic, who can no longer be present.

25 He, like my learned friend Mr. Ackerman, has had to

Page 744

1 return to the United States.

2 As far as the matters are concerned, it is

3 obvious, with great respect, what the Trial Chamber did

4 in this case. They looked at the overall picture and

5 they passed a global sentence, which they thought, in

6 their judgement, having sat for 19 months listening,

7 assessing witnesses, and assessing the defendant,

8 often, as one would see in the judgement, to his

9 detriment as to his personal behaviour, complaining, as

10 they did -- that's contained in a separate ground, but

11 it goes to the question of sentence -- complaining, as

12 they did, that he didn't give evidence. I've raised

13 objection to that in the brief. I don't repeat it,

14 except to say it seems an extraordinary thing, bearing

15 in mind the burden of proof.

16 One suspects that having gone through that

17 extended and difficult exercise, that they did take

18 into account, as they were asked to take into account,

19 the matters contained in the sentencing submissions and

20 the matters which have been reput into the brief. I

21 won't go through those in detail except to say this:

22 It is extraordinary, and in my experience, and I

23 suspect in the experience of most of Your Honours, that

24 Prosecution witnesses -- and they were Prosecution

25 witnesses -- should have said this about a defendant,

Page 745

1 Mr. Golubovic. This witness said in testimony, "If at

2 least 20 per cent of the people in Bosnia had been like

3 Mucic, there would have been no war." Well, bearing in

4 mind the objectives of setting up this Tribunal, that

5 was a pretty powerful comment to make.

6 While giving testimony, he said of Mr. Mucic,

7 "I don't think I'd be sitting here had it not been for

8 him." In answer to the question, "Did people talk

9 about Pavo Mucic in the village," he replied, "Of

10 course they talked about him, all the people he

11 helped. They were grateful and they talked about it."

12 The witness Draganic included the observation

13 that Pavo Mucic enjoyed a good reputation in the

14 community as a fair and good man, and he acknowledged

15 that Mr. Mucic had saved the life of both himself and

16 his family, and he was grateful to him. Another

17 prisoner from the camp.

18 Grozdana Celez. This witness made reference

19 to Mucic preventing the rape of a 13-year-old girl and

20 gave testimony of the fact that he had paid money out

21 of his own funds for her escape and was instrumental in

22 saving other.

23 Witness P testified that Mucic had made an

24 urgent and forceful request for food for the prisoners

25 in Celebici, and further, giving what he described as

Page 746

1 his personal subjective opinion, answered yes to this

2 question: "Can it be said that Mr. Mucic was

3 protecting the prisoners to a certain extent as far as

4 he was able?"

5 JUDGE HUNT: There's a complaint about the

6 speed, I'm afraid.

7 MR. MORRISON: I'm sorry. I'm reading

8 again.

9 Witness T, during cross-examination by my

10 learned friend Mr. Ackerman, the following verbatim

11 exchange:

12 "I think you told us yesterday, and I just

13 want to make certain that I understood you correctly,

14 that these releases of prisoners were primarily due to

15 the efforts of Mr. Mucic, Mr. Pavo Mucic, who was

16 constantly agitating for the young -- for the old or

17 young or the innocent to be released from Celebici. Is

18 that correct or not?" Answer: "Yes." Question:

19 "Mr. Mucic helped the Serbs as much as he could, did

20 he not?" Answer: "Yes."

21 Now, if those don't go to most of the issues

22 complained of by the Prosecution in this case, it's

23 very difficult to see what does.

24 What the Defence has complained about in its

25 appeal and submits in its appeal is that those factors

Page 747

1 weren't taken sufficiently into account, and at the

2 time that observation was put into a submission, the

3 judgement in Aleksovski wasn't available. It is now a

4 completely different case, and of course

5 Mr. Aleksovski was originally sentenced to two and a

6 half years. That was increased to seven years, an

7 identical sentence to that passed on this defendant.

8 It is said in respect of Mr. Aleksovski that

9 one of the reasons it wasn't longer was because he's

10 been at liberty. That's maybe slightly odd, because

11 this defendant has been imprisoned for four years and

12 three months awaiting today. It seems rather to

13 Mr. Aleksovski's benefit that he was at liberty. I'm

14 sure he was happier with that than had been in prison.

15 JUDGE HUNT: I didn't stop Mr. Staker when he

16 said that, but what was said in Aleksovski was the

17 issue of what is called perhaps a misleadingly double

18 jeopardy in a Crown appeal. That's why it was lower

19 than it would otherwise have been, and plus the fact

20 that he had been allowed out, or at liberty.

21 MR. MORRISON: Yes. Well, Your Honour, with

22 respect, double jeopardy does apply, of course, in this

23 case, as from my own experience it would apply in an

24 Attorney General's reference in the United Kingdom.

25 Where somebody has had a sentence and he's been looking

Page 748

1 forward for a number of years to a potential release

2 date, that is, of course, always, and quite properly,

3 taken into account.

4 I do revisit the case of Von Leeb -- it's in

5 the brief, and I don't repeat that -- as to give an

6 example of how someone who is even a supreme commander,

7 and who is effectively convicted in respect of acts of

8 murder committed by subordinates, receives a sentence,

9 as he did, of three years before the Nuremberg

10 Tribunal, a tribunal whose sentence options included,

11 of course, the death penalty.

12 If I was to go beyond that which I've gone, I

13 would simply be trespassing on the 56 pages, I think,

14 that were written in response to the Prosecution. It's

15 a tempting trespass, but when I look into Judge Hunt's

16 eyes, the temptation vanishes. Thank you.

17 JUDGE HUNT: Thank you, Mr. Morrison.

18 Mr. Moran.

19 MR. MORAN: Your Honours, so I won't be

20 tempted to read from the brief, I brought one sheet of

21 legal-sized paper.

22 May it please the Court. I have both an

23 issue on appeal and then a suggestion -- and I'll do

24 the issue on appeal first, of course -- on whether the

25 assessment of punishment in this case resulted in an ex

Page 749

1 post facto increase in the maximum punishment. And the

2 basic argument, without going over in great detail what

3 I've briefed, is this: The Geneva Conventions are not

4 some kind of new international penal code. It was

5 never meant to be that. In fact, there seems to be a

6 presumption at the time the -- Judge Riad is looking

7 like -- questioning that.

8 Your Honour, one of the things I cited was

9 the -- I cited in my brief, is the report from the US

10 Foreign Relations Committee on ratification by the

11 United States of the Conventions in 1956, and the

12 phrase "not an international penal code" comes from

13 that report.

14 It appears that what was expected would be

15 that the Conventions would be enforced through national

16 courts. This Tribunal is the first international court

17 since what, 1948? And so that would seem to be what

18 the authors of the Convention presumed.

19 They also provided universal jurisdiction,

20 but that universal jurisdiction simply allows any state

21 to assume jurisdiction over war crimes; does not

22 require them to do so.

23 And another example from my brief is the

24 United States War Crimes Act, which limits the

25 jurisdiction of United States courts to cases involving

Page 750

1 United States citizens, nationals, or members of the

2 United States military as either a perpetrator or a

3 victim.

4 There's no evidence before this Court that

5 there's any state other than those in the former

6 Yugoslavia that had any jurisdiction to try these

7 offences prior to the creation of this Tribunal in May

8 of 1993, which was after the acts complained of in the

9 indictment. I believe it was May the 20-something, if

10 I've got it right. I keep getting a mental block on

11 that date, but in any case ...

12 Therefore the only punishment ranges which

13 were available to a court which we know had

14 jurisdiction to try these allegations were those in the

15 SFRY Penal Code. We presented an expert, Professor

16 Tomic, from the law faculty of the University of

17 Sarajevo, and in his report, what Dr. Tomic said was

18 that the maximum term of incarceration which could be

19 assessed by a Yugoslavian court under the then Penal

20 Code was 15 years, with one exception: It was a case

21 in which the death penalty was allowed.

22 The Court could assess the death penalty, and

23 then immediately, as a grant of commutation, reduce

24 that death penalty to 20 years. It's my position that

25 that means that the maximum punishment that this Court

Page 751

1 can assess for an offence prior to the date of creation

2 of the Tribunal, prior to that May 1993 date, is

3 15 years, and the reason behind that is this Court

4 lacks the jurisdiction to assess the death penalty. So

5 it cannot assess the death penalty and then, as a

6 matter of grace, reduce it to 20 years immediately.

7 I think this issue's been pretty well

8 briefed, and if there's no questions on that, a

9 suggestion to the Court: We have, of course, raised

10 issues of sufficiency of the evidence on some counts.

11 It is quite conceivable that we would be successful on

12 some of those and unsuccessful on others, and if that

13 were to be the case, and I'll use the examples of the

14 first four counts, if the Court were to find the

15 evidence insufficient and enter an acquittal on Counts

16 1 and 2 but not 3 and 4, the sentences are both

17 identical, which are 20 years, I would submit, as

18 Mr. Staker just said, an accused who kills ten persons

19 should receive a higher sentence than a person who

20 kills only one person, if the Court finds insufficient

21 evidence on either Counts 1 and 2 or 3 and 4, then the

22 Court should reassess the punishment on the remaining

23 count.

24 With that, Your Honours, I thank you very

25 much.

Page 752

1 JUDGE HUNT: Thank you, Mr. Moran.

2 Ms. Sinatra.

3 MS. SINATRA: Yes, Your Honour. Sorry. May

4 it please the Court.

5 Mr. Landzo was convicted of killing three

6 persons, of torturing four persons, and of causing

7 great suffering or serious injury to body or health and

8 cruel treatment of three persons.

9 Draza Erdemovic entered a guilty plea to one

10 count of crimes against humanity for his participation

11 in the execution of approximately 1.200 unarmed

12 civilian Muslims. That was the original allegation

13 that he pled guilty to. In the end result, after the

14 appeals, he confessed and was found guilty of killing

15 at least 75 persons in one day, the 16th of July,

16 1995. He received a sentence of five years, and today

17 he's walking around The Hague.

18 There's some injustice there. Mr. Landzo was

19 sentenced to 15 years. I know there's a lot of other

20 factors to take into consideration in the Erdemovic

21 sentencing, but not so different from Mr. Landzo. He

22 offered to cooperate with the Prosecution.

23 Putting the Erdemovic decision aside, in the

24 newly decided Tadic sentencing appeal, the Appeals

25 Chamber held that the sentences must reflect the

Page 753

1 relative significance of the role of the appellant in

2 the broader context of the conflict in the former

3 Yugoslavia.

4 This Chamber must consider the Tadic factor,

5 Landzo's place in the overall scheme in the war in the

6 former Yugoslavia. In the Tadic sentence appeal, the

7 Trial Chamber -- I mean the Appeals Chamber held that

8 persons who set policy --

9 THE INTERPRETER: Could the counsel be

10 reminded to slow down when reading. Thank you.

11 JUDGE HUNT: Ms. Sinatra, it's a fault that

12 everybody has, I'm afraid. If you read, you do speed

13 up, and they're having trouble with the translations.

14 MS. SINATRA: My apologies to the

15 Interpretation Department.

16 In the Tadic decision, it says that:

17 "The persons who set out policy and order

18 large-scale atrocities should be punished more harshly

19 than defendants who, while guilty of personally

20 committing offences, are minor players in a much larger

21 game controlled by others."

22 There is no one who was more a minor player

23 in the conflict in Yugoslavia than Esad Landzo was. I

24 think the Trial Chamber failed to consider Mr. Landzo's

25 overall situation. It failed to consider the total

Page 754

1 lack of authority of this young boy sucked up in the

2 invasion of his home.

3 Landzo had no authority for the conduct of

4 war. He had no responsibility for policy decisions.

5 He had no military training or authority. In short,

6 his role was very insignificant in the broader context

7 of the conflict in the former Yugoslavia.

8 Now, Mr. Staker had talked about earlier

9 diminished mental responsibility that was taken into

10 consideration by the Trial Chamber. The only reference

11 that the Trial Chamber made that it considered

12 Mr. Landzo's mental state was in paragraph 1283 of the

13 judgement, and going down to the second line, it says:

14 "While the special defence of diminished

15 responsibility raised by the Defence has been rejected

16 by the Trial Chamber, the Trial Chamber may nonetheless

17 take note of the evidence presented by the numerous

18 mental-health experts, which collectively reveals a

19 picture of Mr. Landzo's personality traits that

20 contributes to our consideration of appropriate

21 sentence."

22 What we submit to the Appeals Chamber right

23 now is that clearly the Trial Chamber did not and could

24 not quantify any amount of sentence that it applied to

25 the sentence for Mr. Landzo that applied to diminished

Page 755

1 mental responsibility. It didn't recognise that

2 Mr. Landzo's responsibility was diminished with respect

3 to the sentence. Merely stating that they took into

4 account his mental traits does not recognise diminished

5 mental responsibility even in application to mitigation

6 of punishment.

7 What we're asking the Appeals Chamber to do

8 now is if it -- this is in the alternative, as

9 Mr. Murphy, Professor Murphy, had discussed

10 earlier -- if you find that the defence of diminished

11 mental responsibility did not rise to the threshold

12 level to be a complete defence under Rule 67, then

13 please find that there was sufficient proof in the

14 evidence presented in the case-in-chief to warrant

15 diminished mental responsibility, recognised and stated

16 in the judgement, with a quantified amount of time that

17 he was given credit for.

18 So if he didn't meet the threshold in the

19 case-in-chief for complete defence of diminished mental

20 responsibility, then the defence should be recognised

21 in the sentencing now and used in the alternative to

22 lower his sentence. Merely stating that they took into

23 consideration the evidence by the mental-health experts

24 of his mental traits does not rise to the level of

25 diminished mental responsibility. But the proof was

Page 756

1 sufficient, when this Court finally does offer a

2 definition, that in mitigation of punishment, we did

3 prove diminished mental responsibility. And for

4 mitigation of punishment, the Trial Court clearly did

5 not say, "Well, we sentenced him to 15 years, but

6 because of his state of diminished mental

7 responsibility, we reduce that sentence to 5 years or

8 10 years." That's not clear. It's nowhere stated or

9 recognised by the Trial Chamber.

10 Another thing: Mr. Staker said earlier that

11 Mr. Landzo's sentence was proportionally reduced in

12 comparison to the sentence of Hazim Delic. So he's

13 claiming that there was a proportionate reduction based

14 upon diminished mental responsibility, but that's not

15 true. Hazim Delic was charged with different counts

16 under the indictment. Mr. Landzo was never charged

17 with rape, and he was not considered to have any --

18 well, he was not charged with the same counts in the

19 indictment and not charged with the same crimes as

20 Mr. Delic was.

21 Mr. Landzo requests this Trial Chamber now

22 just to reconsider the evidence that we submitted in

23 sentencing, reconsider the fragile mental condition of

24 Mr. Landzo before the outbreak of the aggression, his

25 lack of ability to exercise his own free will, and

Page 757

1 also, in light of Tadic, to revisit all of the evidence

2 presented.

3 In America it's called due process of law, in

4 the United Kingdom it's called law of the land, and

5 other nations have variations on the Latin phrase, but

6 at their core, they're shorthand for the notion of

7 sovereign decency, for the basic profound idea that

8 there is an inviolate dignity in every man. It's not a

9 theoretical concept but clearly bought in the long and

10 bloody experiences in human history.

11 In Tokyo, the Tribunal's majority judgement

12 was followed by four separate or dissenting opinions

13 and one concurring opinion. Three dissenters: Justice

14 Bernard of France, Justice Pahl [phoen] of India, and

15 Justice Roelling [phoen] of the Netherlands. In his

16 dissenting judgement, Justice Bernard concluded that a

17 verdict reached by a Tribunal after a defective

18 procedure cannot be a valid one.

19 I just ask that you listen to all the

20 arguments here today and take heed and preserve our

21 legacy of justice that we've created so far. Thank

22 you.

23 JUDGE HUNT: Thank you, Ms. Sinatra.

24 Now, Mr. Staker, you have a reply to

25 Mr. Morrison, plus a response to Mr. Morrison, and a

Page 758

1 response to each of the others.

2 MR. STAKER: Thank you, Your Honour. I have

3 just a few very brief points, beginning with

4 Mr. Morrison's response.

5 He said merely that it's clear from the

6 sentencing judgement that the Trial Chamber's sentence

7 was based on an overall picture of all the facts. We

8 don't suggest otherwise. The basis of our appeal

9 against sentence in the case of Mr. Mucic is not that

10 the overall picture of the facts wasn't looked at, but

11 rather that incorrect principles of sentencing were

12 applied, and that inappropriate weight and

13 consideration was given to the way that the facts were

14 assessed in relation to what the appropriate sentence

15 would be, and that significance wasn't given to certain

16 factors which we submit, in fact, were very important.

17 Then to Mr. Moran on behalf of Mr. Delic. He

18 made the argument that it would constitute an ex post

19 facto law for a sentence any higher than 15 years to be

20 imposed because of the state of the law in the former

21 Yugoslavia at the time.

22 I think a short answer to that submission is

23 provided by the decision of the Appeals Chamber in the

24 Tadic sentencing appeal, paragraph 21. And in

25 accordance with the principles of precedent enunciated

Page 759

1 in the Aleksovski appeal judgement, we submit that

2 there have been no cogent reasons advanced why that

3 should now be reconsidered. But further support for

4 the proposition that the Tribunal is not bound by

5 maximum sentences under the law in the former

6 Yugoslavia is now to be found in decisions of Trial

7 Chambers in the Kupreskic judgement, paragraph 846, and

8 the proposition is also supported in practice by the

9 Blaskic judgement, where a sentence of 45 years was

10 imposed. I note that both judgements are presently

11 subject to pending appeals, but I cite them merely as

12 recent precedents.

13 Mr. Moran also made the point that if any of

14 the convictions are overturned in relation to

15 Mr. Delic, then in accordance with the principle that I

16 outlined, the sentence ought to be reduced somewhat to

17 take account of the fact that the overall

18 responsibility of Mr. Delic would then be somewhat

19 less.

20 That might perhaps be a consequence to be

21 drawn from the principle of sentencing, which I have

22 submitted is the correct one, but I would also submit

23 that in this particular case, that wasn't the basis of

24 the Trial Chamber's decision. The Trial Chamber

25 ordered that all of the sentences were to be completely

Page 760

1 concurrent, and the Trial Chamber clearly considered

2 that the sentence imposed on every one of those crimes,

3 or every one of the counts, would have been the

4 appropriate sentence even if that count had been the

5 sole count for which the accused had been found guilty

6 in that case.

7 I turn then to the submissions made by

8 Ms. Sinatra on behalf of Mr. Landzo.

9 First, reference was made to the Erdemovic

10 case. I think that comparison has already been dealt

11 with in our briefs. Very shortly, we submit that the

12 factor of duress that existed in the Erdemovic case

13 made it truly exceptional, and it's very hard to draw

14 any comparison from that in this case. I think it

15 was -- in the Appeals Chamber a comment was made that

16 here was someone basically in the position of having to

17 either kill or be killed himself, and we submit there's

18 absolutely no comparison here in this case. There is

19 no suggestion whatever that Mr. Landzo was somehow

20 forced or would have faced adverse consequences had he

21 not committed these crimes.

22 Mention was then made of his offer to

23 cooperate with the Prosecutor. We submit that, first

24 of all, that's a mischaracterisation of what occurred,

25 and we would also say that it is, in fact, dealt with

Page 761

1 by the Trial Chamber in its sentencing reasoning,

2 unless I have misunderstood the submission being made.

3 In paragraph 1279 there is a reference to discussions

4 that were entered into with a view to the possibility

5 of a plea agreement, and the Trial Chamber held that

6 that was not an offer of cooperation that would justify

7 a reduction in sentence. Paragraph 1282 is also

8 relevant in that regard.

9 The next point made related to the

10 observation in the Tadic appeal that sentencing should

11 reflect the relative significance of the perpetrator in

12 the overall events in the former Yugoslavia. Our

13 submission is that this is, in fact, something that the

14 Trial Chamber did have regard to, if one looks at

15 paragraph 1280 of the Trial Chamber's judgement.

16 The next point was that the Trial Chamber did

17 not or could not quantify the degree of diminished

18 mental responsibility. If I understand this

19 submission, basically it's an adoption of the

20 submissions that were already made in relation to the

21 ground of appeal dealing with diminished mental

22 responsibility, and I think the response we made in

23 relation to that ground of appeal sufficiently covers

24 this point.

25 It was said by Ms. Sinatra that it can't be

Page 762

1 said that based on diminished mental responsibility a

2 lower sentence was imposed on Mr. Landzo than was on

3 his co-accused Mr. Delic. I didn't intend to say that

4 that was the case. I think I did say that it was

5 impossible to know to what extent that factor might

6 have resulted in a reduction of sentence, but that when

7 one compared, in particular, the sentences imposed

8 where they were both found guilty in relation to the

9 same counts, the difference does seem to suggest that

10 different factors were taken into account in relation

11 to Mr. Landzo.

12 The final submission made by Ms. Sinatra was

13 a request to the Appeals Chamber that it reconsider all

14 the evidence relative to sentencing in this case. My

15 reply to that is simply that this is basically a

16 request for a de novo sentencing by the Appeals

17 Chamber. We have already dealt with the standard of

18 review on appeal, and we submit that that would not be

19 something that the Appeals Chamber should appropriately

20 do, if the Chamber pleases.

21 JUDGE HUNT: Is it correct for international

22 criminal trials, that where sentences are concurrent,

23 that the longer of those sentences, if there be a

24 longer one, is intended to represent the appropriate

25 sentence for all of the charges which have been

Page 763

1 established?

2 MR. STAKER: That -- if I could clarify the

3 question. Is the question whether it would be

4 appropriate to establish such a practice or whether

5 such a practice has been established?.

6 JUDGE HUNT: No, No. I want to know -- this

7 is matter raised by Mr. Moran, which you haven't dealt

8 with in your response.

9 Certainly in the jurisdiction with which I am

10 familiar, for a very long time, until fairly recently,

11 it was the accepted law that you could have concurrent

12 or consecutive or cumulative sentencing provided that

13 the total was the fair and appropriate figure for the

14 totality of the criminality involved, and if you made

15 them concurrent, then the longer of the sentences if

16 there be a longer one, or if they're all the same the

17 total length, was intended to represent an appropriate

18 sentence for all of the charges which were found

19 proven.

20 Now, is that appropriate and has it been the

21 practice for the international criminal law applied by

22 this Tribunal?

23 MR. STAKER: Your Honour, I would submit that

24 there's no basis for suggesting that that has been the

25 practice. I would submit that there -- I can think of

Page 764

1 no reason why it would be inappropriate for that to

2 become the practice. In this case, I submit that was

3 not the practice. The Trial Chamber simply imposed

4 sentences and said completely concurrent without

5 addressing its mind to the question.

6 The practice in this Tribunal has, in fact,

7 been somewhat varied. Particularly in the Rwanda

8 Tribunal, but also in this Tribunal in the Blaskic

9 judgement, the approach adopted was that one single

10 global sentence was imposed in respect of all of the

11 counts on which the accused was found guilty. And that

12 is, as I understand it, the practice in France, and I

13 would assume various other countries, particularly

14 those with similar legal systems.

15 The difficulty that that approach poses in

16 the context of this Tribunal is where, on appeal,

17 acquittals on a few of multiple counts are overturned,

18 it's then not clear what the remaining sentence should

19 be.

20 Now, it may be that if the Appeals Chamber

21 can revise a sentence on appeal it can deal with it in

22 that way, but by imposing separate sentences, it makes

23 it clearer what the position is if some are

24 overturned. On the other hand, if separate sentences

25 are imposed and they're all ordered to become

Page 765

1 concurrent, then -- if you understand what I am mean.

2 If we said, if this were the only crime, this would be

3 the sentence we impose, make them all concurrent, and

4 then if any of the counts are overturned on appeal it's

5 easy to see what's left. The problem is when you do

6 that, the overall global sentence may not take account

7 of the fact that there were various crimes. The

8 overall sentence would simply be the highest of one

9 individual sentence.

10 I think the solution that Your Honour has

11 suggested may be a very practical way of addressing

12 this in the practice of the Tribunal. But as I say,

13 there has been, so far as I'm aware, no pronouncement

14 of the principle that should be adopted in dealing with

15 this question.

16 JUDGE HUNT: You see, you said earlier that

17 it was a discretionary matter, whether they should be

18 concurrent or cumulative. That must surely -- the

19 exercise of that discretion must surely depend upon

20 whether or not the total sentence which is finally

21 imposed is appropriate for the total criminality

22 involved.

23 So that if you have two 20-year sentences, if

24 you made them cumulative it would be 40 years. If you

25 make them concurrent, it's 20 years. That's rather a

Page 766

1 large difference, and it seems to me that that's a

2 matter which would have to be taken into account in

3 determining whether they should be concurrent or

4 cumulative. And that works both ways. The totality of

5 criminality has to be fair to both the Prosecution

6 which prosecutes on behalf of the International

7 Community and the accused who has to serve the

8 sentence. So that that must be a matter to be taken

9 into account in the exercise of that discretion.

10 Now, what you have to say then is that the

11 total figure here should it have been 40 years or it

12 should have been 20 years.

13 MR. STAKER: That's the -- I know the Rules

14 say that the sentences shall be either consecutive or

15 concurrent. My submission is they don't have to be

16 necessarily completely consecutive or completely

17 concurrent. It may be that a Trial Chamber would feel,

18 if there are three murders, that each of the murders,

19 had it been the only murder, would have merited

20 20 years.

21 JUDGE HUNT: That would depend on whether

22 they're separate counts, which is another pleading

23 problem with the Prosecution's style of pleading.

24 Sometimes you have a large number of killings within

25 the one count. There it would be appropriate just to

Page 767

1 have the one sentence.

2 MR. STAKER: I would not submit that it

3 should make a difference to sentencing whether three

4 murders are charged in one count or the three murders

5 are charged in three separate counts, but my submission

6 is simply if there are three murders, each of which had

7 it been the only murder, would merit a 20-year

8 sentence. We don't suggest that they should

9 necessarily be completely consecutive so that there's a

10 60-year sentence. On the other hand, make them all

11 completely concurrent would lead to a global 20-year

12 sentence, which is the same as would be imposed if

13 there had only been one murder. That might not

14 adequately reflect the total criminality involved and

15 it may be more appropriate to impose a sentence of, as

16 I said, in the Trial Chamber's discretion, 22, 24,

17 whatever the Trial Chamber considered appropriate.

18 JUDGE HUNT: By making them partly concurrent

19 and partly cumulative.

20 MR. STAKER: That would be one way of doing

21 it. The other would be to impose a single sentence to

22 indicate the single sentence reflects the totality.

23 The other would be to impose completely concurrent

24 sentences, but possibly to make them higher to reflect

25 the fact and to say -- I mean, there are different

Page 768

1 combinations and permutations. Our submission is

2 simply that the Trial Chamber must, in the exercise of

3 its discretion, address its mind to the totality of the

4 criminal conduct, not to look at each count in

5 isolation, impose a sentence, and then, without

6 addressing its mind to the question at all, simply

7 say: Serve concurrent.

8 JUDGE HUNT: Well, what you are really

9 saying, if I interpret you correctly, is that whether

10 they should be concurrent, or cumulative, or partly one

11 and partly the other, you must take into account the

12 totality of the criminality in determining how you

13 exercise that discretion.

14 MR. STAKER: That is our submission, Your

15 Honour.

16 JUDGE HUNT: Thank you. Is there anything

17 further you want to add?

18 MR. STAKER: No, Your Honour.

19 JUDGE HUNT: Thank you.

20 Mr. Morrison, you have the right of reply.

21 MR. MORRISON: It comes to this: On behalf

22 of the bar, may I thank the translators and the

23 transcribers for their hard work in this case. I think

24 all the points have been heard. I think they will be

25 grateful that they don't have to assist us in airing

Page 769

1 them anymore. Thank you.

2 JUDGE HUNT: Mr. Moran, do you want to reply

3 to anything?

4 MR. MORAN: Your Honour, just very briefly.

5 I think, if I understood Mr. Staker just a minute ago,

6 he was saying that essentially the total sentence ought

7 to reflect the total criminality, and I would agree

8 with him on that. And if the Appeals Chamber finds

9 that there is less total criminality, I think we all

10 agree.

11 And with that, I will join Mr. Morrison.

12 There's been many interpreters here. I'm seeing some

13 old friends sitting up in the windows that have had to

14 put up with me and my Texanisms for roughly three years

15 now in translating the different languages, and I am

16 very grateful to them and the rest of the staff.

17 JUDGE HUNT: Ms. Sinatra.

18 MS. SINATRA: Your Honour, I have nothing

19 more on the issue of sentencing, but I too would like

20 to thank not only the interpreters, but these court

21 reporters and the registry and the security guards, who

22 have been most helpful with us throughout this long,

23 challenging period of time we've been here, and I thank

24 you for listening to us today.

25 I think my colleague has something more to

Page 770

1 say, though.

2 MR. MURPHY: Your Honour, in the heat of

3 battle earlier on, I found myself later unsure of the

4 position about the proof of the Constitution of Costa

5 Rica.

6 JUDGE HUNT: Well, that's a point that I've

7 got noted here to raise.

8 MR. MURPHY: Yes.

9 JUDGE HUNT: What we need to know is whether

10 the Prosecution accepts as accurate the translation of

11 the whole of the Constitution of Costa Rica in the

12 version which has been used by both sides, that

13 published by Oceania Publications in a book called

14 "Constitutions of the Countries of the World," edited

15 by a Mr. Flanz, which was issued in May 1995.

16 Now, Mr. Staker, have you got any idea when

17 we might get some response from you about that?

18 MR. STAKER: Your Honour, I would hope to be

19 in a position to find out fairly quickly. How long it

20 would take? I don't know what the answer to that

21 question would be, but I would hope that we could

22 presumably file our response to that in a very short

23 time frame. We could do that in writing.

24 JUDGE HUNT: In the document itself, it shows

25 when various amendments were made. There were none

Page 771

1 made between 1992 and 1995, so far as I can see. What

2 you'd have to check is to whether there were any made

3 subsequently which relate to any of the issues that

4 have been raised.

5 MR. STAKER: Your Honour, I hope the Chamber

6 appreciates that I'm not trying to be difficult or

7 overly technical. I mean, publications can contain

8 omissions or errors, and when so much hinges on this,

9 we feel it is necessary not to simply accept the

10 publication as necessarily authoritative.

11 JUDGE HUNT: I understand your point. My

12 concern before was simply that I hoped that it didn't

13 depend upon who was paying for it, seeing it all comes

14 out of the same pocket eventually.

15 MR. STAKER: That was not the consideration,

16 Your Honour.

17 JUDGE HUNT: Thank you.

18 Well, the Appeals Chamber is very grateful to

19 all of the counsel who have assisted us, and we will

20 reserve our decision.

21 On behalf of the Appeals Chamber, I too would

22 like to thank the translators and the court reporters,

23 who have been given a very thorough workout in this

24 appeal, operating, as they do, outside the usual

25 situation of a trial, where there are sometimes pauses

Page 772

1 between questions and answers.

2 With that comment, we will adjourn.

3 --- Whereupon the hearing adjourned

4 at 5.28 p.m.