1. 1 Friday, 24th March 2000

    2 [Judgement]

    3 [The accused entered court]

    4 --- Upon commencing at 9.04 a.m.

    5 JUDGE MAY: This hearing is for the Appeals

    6 Chamber to announce its judgement in this case and pass

    7 sentence.

    8 Oral submissions were heard on the 9th of

    9 February of this year. After hearing those

    10 submissions, the Chamber dismissed the appellant's

    11 appeal against convictions with reasons to be given

    12 later, reserved judgements on the first two grounds of

    13 the Prosecution's appeal, but allowed the Prosecution

    14 appeal against sentence.

    15 Two preliminary matters: First

    16 Judge Robinson and Judge Wang have participated in the

    17 hearing of the case, in deliberations, and in the

    18 drafting of the judgement. Due to exceptional

    19 circumstances, they cannot attend today's hearing. The

    20 vice-president has made an order authorising today's

    21 hearing in their absence.

    22 Secondly, copies of the judgement, which is

    23 in writing, will be made available by the registrar to

    24 the parties. The statement I read today is not the

    25 judgement of the Appeals Chamber but, according to the

  2. 1Tribunal's practice, a summary of it.

    2 I deal first with the appellant's appeal. He

    3 appeals on four grounds.

    4 Ground one is that the Trial Chamber failed

    5 to establish that the accused had discriminatory intent

    6 which the appellant says is necessary to convict him

    7 for the offences under Article 3 of the Statute of the

    8 International Tribunal.

    9 This ground of appeal is rejected. There is

    10 nothing in the nature of the crimes falling within

    11 Article 3 of the Statute, nor in the Statute generally,

    12 which leads to a conclusion that such offences are

    13 punishable only if they are committed with

    14 discriminatory intent. The general requirements which

    15 must be met for Prosecution of offences under Article 3

    16 are identified by the Appeals Chamber in the Tadic

    17 jurisdiction decision of October 1995. The relevant

    18 violation of International Humanitarian Law must be

    19 serious in the sense that it must constitute a breach

    20 of a rule protecting important values and the breach

    21 must involve grave consequences for the victim. This

    22 in no way imports a requirement that the violation must

    23 be committed with discriminatory intent.

    24 There is nothing in the provisions of the

    25 major international instruments which are encompassed

  3. 1 in Article 3 of the Statute to suggest that violations

    2 must be accompanied by a discriminatory intent. The

    3 language of Common Article 3(1)(c) of the Geneva

    4 Conventions which is applicable, "without any adverse

    5 distinction founded on race, colour, religion, or

    6 faith, sex, birth or wealth or any other similar

    7 criteria," does not restrict the acts prohibited by

    8 that Article to acts committed with a discriminatory

    9 motivation, nor is there evidence in customary

    10 international law which would indicate the development

    11 of such a restriction. In the opinion of this Chamber,

    12 specific discriminatory intent is required only for the

    13 international crimes of persecution and genocide.

    14 For these reasons, the Chamber finds that a

    15 discriminatory intent or motive is not an element of

    16 offences under Article 3 of the Statute, nor of the

    17 offence of outrages upon personal dignity. This ground

    18 of appeal accordingly fails.

    19 Ground two: This ground consists of two

    20 parts: (1) that the conduct proved, in particular the

    21 violence against the detainees, was not sufficiently

    22 grave as to warrant conviction under Article 3 of the

    23 Statute; (2) that the appellant's conduct may have been

    24 justified by necessity.

    25 During the oral hearing, counsel for the

  4. 1 appellant appeared to abandon the first of these

    2 parts. Nevertheless, the Chamber has considered

    3 whether the appellant's conduct was serious enough to

    4 constitute a violation of Article 3 of the Statute.

    5 The Appeals Chamber can find no reason to

    6 doubt the seriousness of these crimes. The victims

    7 endured physical and psychological abuse and outrages

    8 upon personal dignity.

    9 Secondly, the appellant submits that the

    10 defence of extreme necessity is applicable because he

    11 had attempted to protect the civilians from exposure to

    12 greater harm outside the Kaonik facility by detaining

    13 them. It is doubtful whether this defence was raised

    14 during the trial, and the Appeals Chamber considers

    15 that in general, accused before this Tribunal have to

    16 raise all possible defences during the trial and cannot

    17 raise a defence for the first time on appeal. However,

    18 this Chamber has considered whether such a defence was

    19 available to the appellant.

    20 The Chamber is of the view that this ground

    21 of appeal is entirely misconceived. The appellant does

    22 not and cannot argue, in the present case, that he was

    23 faced with only two options, namely, mistreating the

    24 detainees or freeing them. The appellant, faced with

    25 the actual choice of ill-treating the detainees or not,

  5. 1 was convicted of choosing the former. This ground of

    2 appeal thus fails.

    3 Ground three: The appellant submits that the

    4 Prosecution has not proved beyond reasonable doubt that

    5 the alleged outrages upon personal dignity occurred.

    6 In particular, he challenges the Trial Chamber's

    7 reliance on subjective witness testimony in the absence

    8 of medical reports or expert evidence.

    9 The Appeals Chamber finds that neither the

    10 statute nor the rules oblige the Trial Chamber to

    11 require medical reports or other scientific evidence as

    12 proof of a material fact. Similarly, the testimony of

    13 a single witness on a material fact does not require,

    14 as a matter of law, any corroboration. The Trial

    15 Chamber is the best place to hear, assess, and weigh

    16 the evidence, including witness testimonies presented

    17 at trial. It is for a Trial Chamber to consider

    18 whether a witness is reliable and whether the evidence

    19 presented is credible.

    20 The Appeals Chamber, therefore, has to give a

    21 margin of deference to the Trial Chamber's evaluation

    22 of the evidence presented at trial. The Appeals

    23 Chamber may overturn the Trial Chamber's finding of

    24 fact only where the evidence relied on could not have

    25 been accepted by any reasonable Tribunal or where the

  6. 1 evaluation of the evidence is wholly erroneous.

    2 The Appeals Chamber is satisfied that the

    3 Trial Chamber did not err in the exercise of its

    4 discretion when it evaluated the testimony of the

    5 various witnesses. The Trial Chamber accepted such

    6 testimony as sufficient and credible, as it was

    7 entitled to do. The Trial Chamber, therefore, applied

    8 the standard of proof correctly. This ground of appeal

    9 fails.

    10 Ground four: The appellant submits that the

    11 Trial Chamber erred in the application of Article 7(3)

    12 of the Statute. The appellant contests the Trial

    13 Chamber's findings that he had factual authority over

    14 the guards and that he failed to report them to

    15 superior authorities. He submits that he lacked

    16 control over the HVO military police and that his role

    17 was purely administrative and representative and of a

    18 civilian nature.

    19 This ground of appeal is essentially one of

    20 fact. The Appeals Chamber finds that it does not

    21 matter whether the appellant was a civilian or a

    22 military superior. What must be proved is that he had

    23 the powers to prevent or punish crimes in terms of

    24 Article 7(3). The Trial Chamber indeed found that he

    25 had such powers and concluded that he was a superior,

  7. 1 pursuant to Article 7(3).

    2 Unless there is good reason to believe that

    3 the Trial Chamber has drawn unreasonable inferences

    4 from the evidence, it is not open to the Appeals

    5 Chamber to disturb the factual conclusions of the Trial

    6 Chamber. In this case, the appellant has failed to

    7 convince the Chamber that unreasonable conclusions were

    8 drawn by the Trial Chamber in this respect. This

    9 ground must fail for lack of merit.

    10 I now turn to the Prosecution's appeal, which

    11 consists of three grounds:

    12 Ground 1. The Prosecution submits that the

    13 Trial Chamber, in acquitting the appellant on Counts 8

    14 and 9 erred in its application of Article 2 of the

    15 Statute, for these reasons:

    16 (1) The Trial Chamber applied the wrong legal

    17 test to determine whether the armed conflict in the

    18 present case was international. The Prosecution

    19 submits that the correct test is the "overall control

    20 test," as set out in the judgement of the Appeals

    21 Chamber in Tadic of July 1999.

    22 (2) The Trial Chamber erred in applying a

    23 strict nationality requirement to determine whether the

    24 victims were protected persons within the meaning of

    25 Article 4 of Geneva Convention IV. The Prosecution

  8. 1 submits that both requirements for the application of

    2 Article 2 of the statute are in fact met in this case.

    3 It submits that the criminal liability of the appellant

    4 under Counts 8 and 9 can be established on the basis of

    5 the trial record, because it arises out of the same

    6 factual allegations as Count 10, on which the appellant

    7 was convicted by the Trial Chamber.

    8 The first question is whether the Appeals

    9 Chamber is bound by its previous decision in Tadic.

    10 The Chamber recognises that in both the common law and

    11 civil law systems, the highest courts, whether as a

    12 matter of doctrine or of practice, will normally follow

    13 their previous decisions, and will only depart from

    14 them in exceptional circumstances. This is to preserve

    15 the principles of consistency, certainty, and

    16 predictability. The need to preserve those principles

    17 is particularly great in criminal law, where the

    18 liberty of the individual is implicated.

    19 The same principles apply in international

    20 tribunals. The fundamental purpose of this Tribunal is

    21 the prosecution of persons responsible for serious

    22 violations of international humanitarian law. The

    23 Appeals Chamber considers that this purpose is best

    24 served by an approach which, while recognising the need

    25 for certainty, stability, and predictability, also

  9. 1 recognises that there may be instances in which the

    2 strict absolute application of that principle may lead

    3 to injustice.

    4 The Chamber therefore concludes that a proper

    5 construction of the statute, taking due account of its

    6 text and purpose, yields the following conclusion:

    7 In the interests of certainty and

    8 predictability, the Appeals Chamber should follow its

    9 previous decisions but should be free to depart from

    10 them for cogent reasons in the interests of justice.

    11 It is necessary to stress that the normal rule is that

    12 previous decisions are to be followed and departure

    13 from them is the exception. The Appeals Chamber will

    14 thus follow its findings on Article 2 in the Tadic

    15 judgement, since, after careful analysis, it is unable

    16 to find any compelling reason to a depart from it.

    17 The "overall control test" set out in the

    18 Appeals Chamber Tadic decision is the applicable law.

    19 The test provides greater protection for civilian

    20 victims of armed conflict and is wholly consistent with

    21 the fundamental purpose of Geneva Convention IV; that

    22 is, to ensure protection of civilians to the maximum

    23 extent possible.

    24 In the instant case, the Appeals Chamber

    25 finds that the Trial Chamber failed to apply the

  10. 1 correct test. The Appeals Chamber also accepts the

    2 Prosecution's submission that if the conflict in this

    3 case is characterised as international, it follows that

    4 the victims were protected persons under Article 4 of

    5 Geneva Convention IV.

    6 However, Article 4 may also be given a wider

    7 construction so that a person may be accorded protected

    8 status, notwithstanding the fact that he is of the same

    9 nationality as his captors. This extended application

    10 of Article 4 is particularly apposite in the context of

    11 the present-day inter-ethnic conflicts. In the instant

    12 case, the Appeals Chamber finds that the Trial Chamber

    13 erred in its conclusion that the victims were not

    14 protected persons.

    15 As a result of these findings, the Appeals

    16 Chamber has considered whether it should reverse the

    17 acquittals on Counts 8 and 9. The Chamber has come to

    18 the conclusion that no useful purpose would be served

    19 in doing so. This is because:

    20 (1) The substantive issues for determination

    21 on this ground are questions of law rather than fact.

    22 (2) The acts underlying these counts of Count

    23 10 are the same. Therefore, any additional sentence

    24 imposed would be concurrent on all counts, and would

    25 thus not lead to any increase in sentence.

  11. 1 Accordingly, the Appeals Chamber will not remit the

    2 case to the Trial Chamber for re-examination and it

    3 declines to reverse the acquittals.

    4 Ground 2: The Prosecution submits that the

    5 Trial Chamber failed to deal with part of its case in

    6 support of Count 10; namely, that the outrages on

    7 personal dignity, constituted by physical and

    8 psychological harm, took place not only inside the

    9 compound but also outside it, where the prisoners

    10 worked under the control of the HVO.

    11 During the trial, considerable evidence was

    12 given by prisoners of mistreatment while digging

    13 trenches outside the compound. Indeed, the Defence did

    14 not dispute that such mistreatment took place. The

    15 Trial Chamber found that the accused was aware of such

    16 mistreatment but declined to find him responsible for

    17 it, although it did find that he aided and abetted

    18 forced labour and use of prisoners as human shields

    19 outside the prison.

    20 The Appeals Chamber accepts that the only

    21 finding which could have reasonably been made by the

    22 Trial Chamber in the light of its other findings was

    23 that the appellant was responsible for the mistreatment

    24 by the HVO outside the prison. The Appeals Chamber

    25 thus finds the appellant guilty of aiding and abetting

  12. 1 the mistreatment by the HVO outside the prison.

    2 This finding does not alter the verdict of

    3 guilty entered by the Trial Chamber on Count 10. The

    4 additional finding is strictly a matter to be taken

    5 into account when the Appeals Chamber comes to impose a

    6 new sentence for Count 10. But in view of its limited

    7 nature, the Appeals Chamber does not consider that the

    8 additional finding of itself warrants any heavier

    9 sentence.

    10 Ground 3: The Prosecution submits that the

    11 Trial Chamber erred in imposing a sentence of two and a

    12 half years on the appellant, arguing that the sentence

    13 is manifestly disproportionate to the crimes

    14 committed. Having considered the submissions and all

    15 the circumstances of the case, the Appeals Chamber has

    16 come to the conclusion that the Trial Chamber erred in

    17 its imposition of sentence. In particular, the Appeals

    18 Chamber finds that the Trial Chamber erred in not

    19 having sufficient regard to the gravity of the conduct

    20 of the appellant, for the following reasons:

    21 His offences were not trivial. Instead of

    22 preventing it, the appellant, as a superior, involved

    23 himself in violence against those whom he should have

    24 been protecting and allowed them to be subjected to

    25 psychological terror. He also failed to punish those

  13. 1 responsible. Most seriously, the appellant, by

    2 participating in the selection of detainees to be used

    3 as human shields and for trench-digging, as he must

    4 have known, was putting at risk of lives of those

    5 entrusted to his custody. With his direct

    6 participation as a commander, he provided additional

    7 encouragement to his subordinates to commit similar

    8 acts. The combination of these factors should,

    9 therefore, have resulted in a longer sentence and

    10 should certainly not have provided grounds for

    11 mitigation.

    12 While the Appeals Chamber accepts the

    13 Prosecution's submission on the general importance of

    14 deterrence as a consideration in sentencing for

    15 international crimes, it concurs with the Appeals

    16 Chamber's statement in Tadic that "this factor must not

    17 be accorded undue prominence in the overall assessment

    18 of the sentences to be imposed on persons convicted by

    19 the International Tribunal." An equally important

    20 factor is retribution. This is not to be understood as

    21 fulfilling a desire for revenge but as duly expressing

    22 the outrage of the International Community at these

    23 crimes.

    24 The Appeals Chamber is satisfied that the

    25 Trial Chamber was in error in sentencing the appellant

  14. 1 to two and a half years imprisonment. The question

    2 then arises whether the Appeals Chamber should review

    3 the sentence. Appellate review of sentencing is

    4 available in the major legal systems but is usually

    5 exercised sparingly. In Tadic, the Appeals Chamber

    6 held that it should not intervene in the exercise of

    7 the Trial Chamber's discretion with regard to sentence

    8 unless there is a discernible error.

    9 In applying that test to the instant case,

    10 the Appeals Chamber finds that there was a discernible

    11 error in the Trial Chamber's exercise of discretion in

    12 imposing sentence. That error consisted of giving

    13 insufficient weight to the gravity of the conduct of

    14 the appellant and failing to treat his position as

    15 Commander as an aggravating feature in relation to his

    16 responsibility under Article 7(1) of the Statute. The

    17 sentence imposed by the Trial Chamber was manifestly

    18 inadequate.

    19 In imposing a revised sentence, the Appeals

    20 Chamber bears in mind the element of double jeopardy in

    21 this process in that the appellant has had to appear

    22 for sentence twice for the same conduct, suffering the

    23 consequent anxiety and distress and also that he has

    24 been detained a second time after a period of release

    25 of nine months. Had it not been for these factors, the

  15. 1 sentence would have been considerably longer.

    2 For these reasons, the Appeals Chamber

    3 unanimously denies the appellant's four grounds of

    4 appeal against judgement; allows in part the

    5 Prosecution's first ground of appeal, but declines to

    6 reverse the acquittals on Counts 8 and 9; allows the

    7 Prosecution's second ground of appeal; allows the

    8 Prosecution's third ground of appeal and revises the

    9 sentence the appellant received at trial.

    10 Zlatko Aleksovski, stand up.

    11 [The accused stands]

    12 JUDGE MAY:

    13 Zlatko Aleksovski, the sentence on you will

    14 be one of seven years imprisonment with deduction

    15 therefrom of three years and 12 days for the time

    16 served in detention.

    17 The Chamber directs that the imprisonment be

    18 served in a state to be designated by the International

    19 Tribunal in accordance with Article 27 of the Statute

    20 and Rule 103 of the rules.

    21 The Court will rise.

    22 --- Whereupon the hearing adjourned at

    23 9.34 a.m.