"Judgement"

24 March 2000
Judges May [Presiding], Mumba, Hunt, Wang and Robinson

Background

On 7 May 1999, the Trial Chamber rendered its oral Judgement finding the accused, Zlatko Aleksovski, guilty on Count 10 and not guilty on Counts 8 and 91. The Trial Chamber issued its written Judgement on 25 June 19992.

Both the accused (hereinafter, the "Appellant") and the Prosecution (or "Cross-Appellant") appealed against separate aspects of the Judgement. The grounds of appeal for and relief sought by the Appellant can be summarized as follows:

1) Ground 1: The Trial Chamber failed to establish that the accused had a discriminatory intent, which the Defence submitted, is necessary to convict him for the offences under Article 3 of the Statute. Therefore, the Appeals Chamber should reverse the finding of guilt under Count 10 for failure to establish the requisite mens rea.

2) Ground 2: The conduct found proved against the Appellant, in particular the violence against the detainees, was not sufficiently grave to warrant a conviction under Article 3 and the Appellant’s conduct may have been justified by necessity which the Trial Chamber failed to consider. Consequently, the Appeals Chamber should reverse the finding of guilt under Count 10 for failure to establish the requisite actus reus.

3) Ground 3: The Trial Chamber erred in relying on witness testimony that was inherently unreliable and did not meet the standard of proof beyond a reasonable doubt. Therefore, the Trial Chamber’s finding of guilt with respect to Count 10 should be reversed for failure to correctly apply the standard of proof beyond a reasonable doubt.

4) Ground 4: The Trial Chamber erred in its finding that the Appellant was in a position of superior responsibility under Article 7(3) of the Statute. The finding of guilt with respect to Count 10 should thus be reversed for failure to establish the responsibility of the accused as a commander.

The grounds of appeal advanced and relief sought by the Prosecution were as follows:

1) Ground 1: The Trial Chamber erred in deciding that Article 2 of the Statute was inapplicable because it had not been established that the Bosnian Muslim held at Kaonik prison between January 1993 and the end of May 1993 were protected persons within the meaning of Article 4 of the Geneva Convention IV. Therefore, the Appeals Chamber should reverse the finding of not guilty with respect to Counts 8 and 9.

2) Ground 2: The Trial Chamber erred in holding that the Defendant did not incur responsibility under Article 7(1) of the Statute for the mistreatment suffered by the detainees while outside Kaonik prison. The Appeals Chamber should reverse the finding in relation to Count 10 that the Appellant is not guilty of the mistreatment of prisoners outside Kaonik (other than for their use as trench-diggers and human shields) and to substitute a guilty finding. In addition, should the Cross-Appellant’s first ground of appeal succeed, the finding of not guilty with respect to counts 8 and 9 should be reversed.

3) Ground 3: The Trial Chamber erred when it sentenced the accused to two and a half years’ imprisonment. The sentence should not be less than seven years.

Defence's Grounds of Appeal

Lack of Requisite Mens Rea

The Appeals Chamber repeated that Article 3 of the Statute does not contain a general requirement of discriminatory intent. The reference made by the Trial Chamber to an intention to discriminate appear in the context of its description of the conditions of detention and whether those conditions could be -partly- imputed to the accused. The Trial Chamber concluded that the mens rea of outrages upon personal dignity is the "intent to humiliate or ridicule the victim" but did not refer to discrimination3.

The Defence also claimed that an essential element of the offences under Article 3 of the Statute is that the perpetrator is "motivated by a contempt towards other persons’ dignity in racial, religious, social, sexual or other discriminatory sense". The Appeals Chamber dismissed this argument for the following reasons: (1) the Defence was unable to provide any authority supporting its claim; (2) there is nothing in Article 3, nor in the Statute in general, which could lead to a conclusion that those offences are punishable only if they are committed with discriminatory intent4; (3) more generally, international instruments provide no basis for imposing a discriminatory requirement in the context of Article 3’s offences5; (4) nor could it be argued that a rule of customary international law imposes such a requirement6; (5) there is no indication in the jurisprudence of this Tribunal that such a requirement had ever been considered7.

Seriousness of the Violations and Defence of Necessity

The Defence’s first argument is that the violence against the detainees was not sufficiently grave as to warrant a conviction under Article 3 of the Statute. The Appeals Chamber declared that, in view of the acts for which the Appellant was convicted, it could find "no reason whatsoever to doubt the seriousness of these crimes"8.

The Appeals Chamber also stated that in general an accused cannot raise a defence for the first time on appeal9. However, the Appeals Chamber decided nonetheless to consider the defence argument that the Appellant’s conduct may have been justified by "necessity". In the present case however, the Appeals Chamber declared that this defence was entirely misplaced10 because, faced with the actual choice of mistreating the detainees or not, the Appellant was convicted for choosing the former11.

Failure to Apply Correctly the Standard Proof Beyond Reasonable Doubt

As a matter of principle, Trial Chambers are best placed to hear, assess and weigh the evidence presented at trial. Therefore, the Appeals Chamber must give a margin of deference to the Trial Chamber’s evaluation of the evidence presented at trial. "The Appeals Chamber may overturn the Trial Chamber’s finding of fact only where the evidence relied on could not have been accepted by any reasonable tribunal or where the evaluation of the evidence is wholly erroneous"12.

In the case at hand, the Appeals Chamber declared that the Trial Chamber did not err in its evaluation of the evidence presented to it and that it properly applied the standard of proof beyond reasonable doubt in relation to this ground of appeal13.

Trial Chamber Erred in its Application of Article 7(3)

The Trial Chamber identified three constituent element of liability under Article 7(3)14: (1) the existence of a superior-subordinate relationship; (2) the fact that the superior "knew or had reason to know that a crime was about to be committed or had been committed"; and (3) his obligation to take all the necessary and reasonable measures to prevent or punish the perpetrators.

The Appeals Chamber held that unless there is good reason to believe that the Trial Chamber has drawn unreasonable inferences from the evidence, the Appeals Chamber should not "disturb the factual conclusions of the Trial Chamber"15.

The Appeals Chamber was also satisfied that the Trial Chamber’s assessment of the evidence concerning the accused’s command responsibility was sound and that its interpretation of his role fell within the "juridical" meaning of "commander"16.

This ground of appeal was thus dismissed for the following reasons17: a) the facts disputed by the Appellant have all been argued and adjudicated at the trial and no good cause was shown on appeal to justify re-examination of the factual findings of the Trial Chamber; and b) the Appellant does not challenge the Trial Chamber’s interpretation of the elements of command responsibility, whose application by the Trial Chamber has not been shown to be unreasonable.

Prosecution's Grounds of Appeal

Internationality of the Conflict, ‘Protected Persons’ and the Role of Precedent in the International Tribunal for the former Yugoslavia

The arguments advanced by the parties touched upon the value of precedent in the International Tribunal, that is, whether decisions of the Appeals Chamber are binding on itself, whether its decisions are binding on Trial Chambers and whether decisions of Trial Chambers are binding on each other.

After considering the practice in both national and international jurisdictions, the Appeals Chamber concluded that the highest courts will normally follow their previous decisions and will only depart from them in exceptional circumstances18.

Article 25 of the Statute provides the accused with a right to appeal the decisions of the Trial Chamber19 but no Article specifically provides for the issue of precedent. The Appeals Chamber held that although certainty, stability and predictability are important factors in criminal law, there may be instances in which the strict application of the principle of stare decisis may lead to injustice20. Therefore, "[t]he principle of the continuity of judicial decisions must be balanced by a residual principle that ensures that justice is done in all cases"21.

Such a conclusion can be attached to the general requirement of a fair trial contained in Article 21(4) of the Statute. In fact, "[a]n aspect of the fair trial requirement is the right of an accused to have like cases treated alike"22. In addition, this right requires and ensures the correction of errors made at trial23.

The Appeals Chamber therefore held that in the interests of certainty and predictability, "the Appeals Chamber should follow its previous decisions, but should be free to depart from them for cogent reasons in the interest of justice"24. Thus, the principle is that previous decisions should be followed and departure from them should remain the exception. The Appeals Chamber also made it clear that what is to be followed in previous decisions is the legal finding (ratio decidendi) underpinning them and the obligation to follow previous decisions only applies to similar cases or substantially similar cases25. When the Appeals Chamber is faced with previous decisions that are conflicting, it must determine which decision it will follow, or whether to depart from both decisions for cogent reasons in the interests of justice26.

The ratio decidendi of the Appeals Chamber’s decisions is also binding on Trial Chambers for the following reasons27: (i) the Statute establishes a hierarchical structure in which the Appeals Chamber is given the function of settling definitively certain questions of law and fact arising from decisions of the Trial Chambers; (ii) the mandate of the Tribunal could not be fulfilled if the accused and the Prosecution did not have the assurance of certainty and predictability in the application of the law; (iii) the right to appeal provides the accused with the right to have like cases treated alike and must ensure a certain degree of coherence in the law of the Tribunal28.

Finally, the Appeals Chamber stated that decisions of Trial Chambers "which are bodies with coordinate jurisdiction", have no binding force on each other, "although a Trial Chamber is free to follow the decision of another Trial Chamber if it finds that decision persuasive"29.

The Appeals Chamber then turned to the questions of establishing the criteria determinative of the international character of the armed conflict. The Appeals Chamber confirmed that a finding of internationality should be based on the "overall control" test set out in Tadic30. It further stated that the Trial Chamber had misapplied this very test. Indeed, the Trial Chamber seems to assume that some kind of order or instruction from the principal to the agent is required to establish overall control. In addition, the majority Opinion of the Trial Chamber used "dependency" as a criterion which is inconsistent with the Tadic Judgement. Notwithstanding its express reference to "overall control", the Trial Chamber did not in fact apply that test properly31. "The ‘overall control’ test calls for an assessment of all the elements of control taken as a whole, and a determination to be made on that basis as to whether there was the required degree of control"32.

The Appeals Chambers held that if the conflict is international by reason of Croatia’s participation, the Bosnian Muslim victims must be regarded as ‘protected persons’ and Article 4 of the Geneva Convention IV must apply. Moreover, the Appeals Chamber added that, in certain circumstances, Article 4 may be given a wider construction "so that a person may be accorded protected status, notwithstanding the fact that he is of the same nationality as his captors"33.

Although the Appeals Chamber found that the Trial Chamber applied the wrong test for determining the applicability of Article 2, it nevertheless declined to reverse the verdict of acquittal on Counts 8 and 9 mainly because the material acts underlying the charges are the same in respect of those two Counts and Count 10 for which the Appellant has been convicted. Thus, even if the verdict of acquittal were to be reversed by a finding of guilt on these counts, it would not be appropriate to increase the Appellant’s sentence34.

Responsibility for Mistreatment of Prisoners Outside the Prison

In order to convict someone for aiding and abetting a crime, the Prosecution must establish the acts of the principal or principals for which it seeks to make an aider and abettor responsible35. This ground of appeal is essentially concerned with the mistreatment of prisoners while they were digging trenches outside of the prison. According to the Appeals Chamber, considerable evidence was given by prisoners of mistreatment when digging trenches36. However, the Trial Chamber apparently considered that the Indictment did not contain a charge that the Appellant was liable for having aided and abetted in the mistreatment of the prisoners by HVO soldiers during those time37.

The Trial Chamber was obviously mindful that the Appellant was aware of the mistreatment and that with that awareness he nevertheless continued to send prisoners out to work in those conditions. It is also implicit in the Trial Chamber’s finding that, although he had responsibility for the welfare of the prisoners, Aleksovski failed to take the necessary measures to stop them from going out to work in such conditions. It seems that the Trial Chamber declined to find him responsible for those acts because he did not have "direct authority" under Article 7(1) over the main perpetrators of the crimes38 and because he did not directly participate39 in the mistreatment of the prisoners. This reasoning is misleading. Aiding and abetting charges pursuant to Article 7(1) contains no requirement of "direct authority". In addition, the Prosecution did not intend to make a case of individual responsibility based upon the direct or personal participation by the Appellant. Article 7(1) not only covers direct participation in the criminal act, but also individual participation by way of aiding and abetting in the criminal acts of others.

The Appeals Chamber was satisfied that the Prosecution indeed charged the Appellant with individual responsibility by way of aiding and abetting for the mistreatment of prisoners outside the compound and that the Trial Chamber was mistaken when it found that no such claim had been made. Besides, whatever was intended, the Trial Chamber should have proceeded to make findings in relation to the individual responsibility of the Appellant for aiding and abetting in the above mentioned crimes40.

The Appeals Chamber concluded that, in light of the evidence, the only finding which could reasonably have been made by the Trial Chamber is that the Appellant was individually responsible for the mistreatment of the prisoners who were forced to dig trenches outside the compound. "Any finding to the contrary would have been unreasonable in those circumstances"41. The Appeals Chamber accordingly made that finding. The Appeals Chamber held that its finding on that point did not alter the verdict of guilty with respect to Count 10, but would only be a matter for consideration at the sentencing stage42. The Appeals Chamber considered however that, "in view of the limited finding possible", it did not believe that the additional finding warranted any heavier sentence than would have been imposed without it43.

Error in Sentencing

The Prosecution’s argument on that point turns around the gravity of the crimes committed and its assessment in respect of sentencing44. The Appeals Chamber held that the gravity of the conduct should provide the starting point for consideration of an appropriate sentence and that the Trial Chamber had erred in not having sufficient regard to the gravity of the conduct of the accused45. According to the Appeals Chamber, although the Appellant may have had a secondary role when compared with the roles of other people, he was nonetheless the commander of the prison and, as such, the authority who could have prevented crimes in the prison and should at least not have involved himself in them46.

A sentence of the International Tribunal should make clear that the international community strongly condemns the behaviour in question and show that it will not tolerate serious violations of international humanitarian law and human rights47. The sentence imposed by the Trial Chamber (two and a half years) does not fulfil that purpose48.

The Appeals Chamber has the power to review a sentence imposed by the Trial Chamber when it has committed a "discernible error" in that regard49. Such an error has been committed in the present instance and "[t]hat error consisted of giving insufficient weight to the gravity of the conduct of the Appellant and failing to treat his position as commander as an aggravating feature in relation to his responsibility under Article 7(1) of the Statute. Consequently, the sentence imposed by the Trial Chamber was manifestly inadequate"50.

In considering the appropriate sentence, the Appeals Chamber took into consideration the fact that the Appellant had to appear for sentencing twice for the same conduct, and also that he has been detained a second time after a period of release of nine months. "Had it not been for these factors, the sentence would have been considerably longer"51.

Consequently, the sentence was increased to seven years’ imprisonment.

Declaration of Judge Hunt

Judge Hunt joined a Declaration on which he agreed with the majority’s conclusion on the issue of judicial precedent but expressed a different reasoning. Judge Hunt first underlined the fact that precedent does not, as a matter of principle, play the same role in national and international settings. In addition, unlike any other international judicial mechanism, the International Tribunal for the former Yugoslavia possesses an appellate body and deals with criminal matters. Unlike national systems, there is no international legislative body to fine-tune its Statute. Besides, the Tribunal’s Statute "is not a self-contained code of the nature adopted in the civil law systems, and (as in common law systems) it requires constant interpretation for its continuing application"52. As a consequence of those factors, the practice of other international courts and the doctrine of judicial precedent in domestic courts does not provide the answer to the practice the Appeals Chamber should adopt.

According to Judge Hunt, "[t]he need for certainty in the criminal law means that the Appeals Chamber should never disregard a previous decision simply because the members of the Appeals Chamber at that particular time do not personally agree with it. The Appeals Chamber should depart from its previous decision only with caution. […] The appropriate test, in my view, is that a departure from a previous decision is justified only when the interests of justice require it"53.

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1. Counts 8 (grave breaches under Article 2(b) – inhumane treatment), Count 9 (grave breaches under Article 2(c) – wilfully causing great suffering or serious injury to body or health) and Count 10 (violation of the laws or customs of war – outrages upon personal dignity.
2. The Prosecutor v. Aleksovski, Judgement, 25 June 1999 (summarised in Judicial Supplement No. 6).
3. Para. 18. The Appeals Chamber did not concur with the Trial Chamber’s reasoning with respect to the mental element of outrages upon personal dignity (see para. 28).
4. See The Prosecutor v. Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 94, which makes that point very clear.
5. Paras. 21-22. See in particular common Article 3 of the Geneva Conventions. According to the Appeals Chamber, "StChe reference in common Article 3(1)(c) to ‘without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria’ does not qualify the overriding requirement of humane treatment of all persons taking no active part in hostilities, and in particular does not restrict the acts prohibited by that article to acts committed with a discriminatory motivation." (para. 22). See also para. 24.
6. Para. 23.
7. Paras. 25-26. See The Prosecutor v. Furundzija, Judgement, 10 December 1998, para. 183 and The Prosecutor v. Delalic et al. ("Celebici"), Judgement, 16 November 1998, para. 543 (both judgements summarised in Judicial Supplement No. 1).
8. Para. 37: "The victims were not merely inconvenienced or made uncomfortable – what they had to endure, under the prevailing circumstances, were physical and psychological abuse and outrages that any human being would have experienced as such."
9. Para. 51. The general obligation to raise all possible defences during trial stems from the Rules of Procedure and Evidence, in particular Rules 65ter and 67 as well as the obligation of the accused to plead to the charges against him. See The Prosecutor v. Aleksovski, Decision on Prosecutor’s Appeal on Admissibility of Evidence, 16 February 2000, paras. 18-20 and The Prosecutor v. Tadic, Judgement, 15 July 1999, para. 55 (summarised in Judicial Supplement No. 6).
10. The Appeals Chamber did not take a stance as to whether necessity constitutes a valid defence or whether the Appellant was entitled to raise it at all.
11. Para. 54.
12. Para. 63.
13. Para. 64.
14. The Prosecutor v. Aleksovski, Judgement, 25 June 1999, para. 71 (summarised in Judicial Supplement No. 6).
15. Para. 74.
16. Para. 76. See also The Prosecutor v. Blaskic, Judgement, 3 March 2000 (summarised in this issue of Judicial Supplement)
17. Para. 77.
18. Para. 97. The Appeals Chamber held that the principles underpinning that finding are the principles of consistency, certainty and predictability. Such a solution makes all the more sense in the context of criminal law where the liberty of individuals is in issue.
19. See The Prosecutor v. Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995.
20. Para. 101.
21. Para. 102.
22. Para. 105.
23. Para. 106: "At the hearing of an appeal, the principle of fairness is the ultimate corrective of errors of law and fact, but it is also a continuing requirement in any appeal in which a previous decision of an appellate body is being considered."
24. Para. 107. With respect to the interpretation of "cogent reason" to depart from a previous decision, see para. 108.
25. Para. 110.
26. Para. 111.
27. Para. 113.
28. Para. 113: "The need for coherence is particularly acute in the context in which the Tribunal operates, where the norms of international humanitarian law and international criminal law are developing, and where, therefore, the need for those appearing before the Tribunal, the accused and the Prosecution, to be certain of the regim in which cases are tried is even more pronounced."
29. Para. 114.
30. The Prosecutor v. Tadic, Judgement, 15 July 1999, para. 156 (summarised in Judicial Supplement No. 6). See also paras. 126 and 135 of the present Judgement on the Defence’s contention that applying the Tadic "overall control" test would infringe the nullum crimen sine lege principle.
31. Para. 143.
32. Para. 145.
33. Paras. 151-2.
34. Para. 153. Moreover, as mentioned by the Appeals Chamber, any sentence imposed in respect of Counts 8 and 9 would have to run concurrently with the sentence on Count 10.
35. The Prosecutor v. Furundzija, Judgement, 10 December 1998, paras. 74ff.
36. Paras. 165-166.
37. The Trial Chamber only found that the Appellant responsible for aiding and abetting in the forced labour and use of prisoners as human shields outside the compound.
38. Para. 129 of the Trial Chamber’s Judgement.
39. Para. 130 of the Trial Chamber’s Judgement.
40. Para. 171.
41. Para. 172.
42. That is, when imposing a revised sentence.
43. Para. 173.
44. Article 24(2) of the Statute provides that the gravity of the crimes is one of the elements to consider when imposing sentence. See The Prosecutor v. Delalic et al., Judgement, 16 November 1998, para,. 1255 (summarised in Judicial Supplement No. 1) and The Prosecutor v. Kupreskic et al., Judgement, 14 January 2000, Para. 852 (summarised in Judicial Supplement No. 11).
45. Para. 183. According to the Appeals Chamber, "[t]he Appellant did more than merely tolerate he crimes as a commander; with his direct participation he provided additional encouragement to his subordinates to commit similar acts."
46. Para. 184.
47. Para. 185. See also The Prosecutor v. Erdemovic, 24 December 1996, paras. 64-66 and The Prosecutor v. Kambanda (ICTR), Judgement, 4 September 1998, para. 28.
48. Para. 186.
49. However, the principle remains that the Appeals Chamber should not intervene in the exercise of the Trial Chamber’s discretion. See The Prosecutor v. Tadic, Judgement in Sentencing Appeals, 26 January 2000, para. 22 (summarised in Judicial Supplement No. 11).
50. Para. 187.
51. Para. 190.
52. Para. 6 of the Declaration.
53. Para. 8 of the Declaration.