"Judgement"

20 February 2001
Judges Hunt [Presiding], Riad, Nieto-Navia, Bennouna and Pocar

Procedural Background

On 21 March 1996, the Office of the Prosecutor charged Zejnil Delalic, Zdravko Mucic, Hazim Delic and Esad Landzo with many counts of grave breaches of the Geneva Conventions of 1949 under Article 2 of the Statute and of violations of the laws or customs of war under Article 3 of the Statute. These related to acts allegedly perpetrated against Bosnian Serb detainees in 1992 in a prison-camp near the town of Celebici in central Bosnia and Herzegovina. Zejnil Delalic was specifically alleged to have co-ordinated the activities of the Bosnian Muslim and Bosnian Croat forces in the area and later to have been the Commander of the First Tactical Group of the Bosnian Army. In that capacity, he was alleged to have had authority over the Celebici prison-camp.

On 16 November 1998, Trial Chamber II quater, composed of Judges Karibi-Whyte (Presiding), Odio Benito and Jan rendered its Judgement.

The Trial Chamber found Zejnil Delalic not guilty on all counts on the ground that he did not have sufficient command and control over the Celebici prison-camp and its guards to be found criminally responsible as a superior for the crimes they committed in the camp.

The Trial Chamber determined that Zdravko Mucic was the commander of the Celebici prison-camp and was, as such, guilty under the principles of superior responsibility for crimes committed by his subordinates, including murder, torture and inhuman treatment. He was also found guilty of personal responsibility for the unlawful confinement of civilians. Zdravko Mucic was sentenced to seven years in prison. The Trial Chamber ruled that Hazim Delic had acted as the deputy commander of the camp and found him guilty on the basis of personal responsibility for crimes including murder, torture and inhuman treatment. He received a twenty-year sentence.

The Trial Chamber determined that Esad Landzo was a guard at the Celebici prison camp and guilty of committing offences including murder, torture and cruel treatment. He received a total sentence of fifteen years.

The three convicted co-accused filed notices of appeal against the Judgement of the Trial Chamber. The Prosecution also filed a notice of appeal against the Judgement on a number of grounds, including the acquittal of Zejnil Delalic.

Article 2 of the Statute

The convicted appellants raised three issues relating to the legal conditions for application of Article 2 of the Statute1.

• It has been established in the case-law of the Tribunal that the Prosecution must prove the existence of an international armed conflict for any of the offences charged under this text. The Trial Chamber found that the armed conflict which had taken "place in Bosnia and Herzegovina after 19 May 1992 could be regarded as international"2, since the Bosnian Serb forces fighting in Bosnia and Herzegovina were under the control of the Federal Republic of Yugoslavia. The Appeals Chamber re-affirmed its Judgement of 26 January 2000 in The Prosecutor v. Dusko Tadic3. This was followed by its Judgement of 24 March 2000 in The Prosecutor v. Zlatko Aleksovski4, which held that the Prosecution must establish that the foreign intervening party was in "overall control" of the local forces5.

  The Appeals Chamber reiterated that it would follow the ratio decidendi6 of its previous Decisions unless there were "cogent reasons in the interests of justice" to depart from them7. It considered that there was no reason to depart from the above-mentioned Judgement in the Tadic case concerning the relevant standard of control for this purpose. The Appeals Chamber provided additional reasons to explain why that interpretation was correct and was satisfied that the factual determination of the Trial Chamber on this issue was consistent with the overall control test stated.

• The appellants also challenged the finding of the Trial Chamber that, for the purposes of Article 2 of the Statute, the victims were persons protected under the relevant Geneva Convention. In the above-mentioned Judgement in the Aleksovski case, the Appeals Chamber had held that "a person may be accorded protected person status, notwithstanding the fact that he is of the same nationality as his captors"8, a ruling already given in the above-mentioned Judgement in the Tadic case9. The Appeals Chamber concluded that there was "no cogent reasons in the interests of justice to depart from"10 this interpretation and confirmed that "the nationality of the victims for the purpose of the application of Geneva Convention IV should not be determined on the basis of formal national characterisations"11. The Appeals Chamber identified "the issue relevant to humanitarian law" as being one of "whether the civilians detained in the Celebici camp were protected persons in accordance with Geneva Convention IV."12 It considered that the definition of nationality should include the ethnicity of the victims and the perpetrators as well as their ties to a foreign intervening State. The Appeals Chamber was satisfied that the findings of the Trial Chamber were consistent with the interpretation set forth in its Judgement in the Tadic case and concluded that "for the purposes of the application of Article 2 of the Statute to the present case, the Bosnian Serb victims detained in the Celebici camp must be regarded as having been in the hands of a party to the conflict, Bosnia and Herzegovina, of which they were not nationals."13

• Hazim Delic also challenged the authority of the Tribunal to prosecute grave breaches of the Geneva Conventions. On the basis of the principle of legality or nullum crimen sine lege, he submitted that Bosnia and Herzegovina was not a party to the Conventions until after the relevant events and acceded to them only subsequently. The Appeals Chamber held that Bosnia and Herzegovina had, in fact, succeeded to the Geneva Conventions. The effect of this is that Bosnia and Herzegovina was considered to be a party to the treaty as of the date of its succession or independence, which was prior to the relevant events. It also stated that the argument "appears to confuse the concepts of 'accession' and 'succession'"14 and further expressed the view that, irrespective of any findings as to a formal act of succession, "Bosnia and Herzegovina would in any event have succeeded to the Geneva Conventions under customary law, as this type of convention entails automatic succession, i.e., without the need for any formal confirmation of adherence by the successor State. It may be now considered in international law that there is automatic State succession to multilateral humanitarian treaties in the broad sense, i.e., treaties of universal character which express fundamental human rights."15 The Appeals Chamber concluded that "it is indisputable that the Geneva Conventions fall within this category of universal multilateral treaties which reflect rules accepted and recognised by the international community as a whole. The Geneva Conventions enjoy nearly universal participation"16, since only two United Nations member States, Marshall and Nauru, are not parties to them. Finally, the Appeals Chamber referred to the Secretary-General's Report which appeared when the Tribunal was established. The Report states that the Geneva Conventions are listed among the international humanitarian instruments "beyond any doubt part of customary law so that the problem of adherence of some but not all States to specific conventions does not arise"17.

Article 3 common to the four Geneva Conventions and Article 3 of the Statute

The appellants also challenged the authority of the Tribunal to prosecute violations of Article 3 common to the Geneva Conventions under Article 3 of the Statute18. The Appeals Chamber reiterated its Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction rendered on 2 October 1995 in the case The Prosecutor v. Dusko Tadic19. In this Decision, it held (1) that the violations of the laws or customs of war which may fall within Article 3 of the Statute include violations of common Article 3; (2) that these violations give rise to individual criminal responsibility; and (3) that they may be prosecuted whether committed in internal or international conflicts. The Appeals Chamber found "no cogent reasons in the interests of justice to depart from its previous conclusions20. It also expressed that common Article 3, "which constitutes a mandatory minimum code applicable to internal conflicts, had gradually become part of customary law."21 These principles "are so fundamental that they are regarded as governing both internal and international conflicts."22

Common responsibility

• The Trial Chamber had convicted Zdravko Mucic under Article 7(1) of the Statute23 for the crimes committed in the Celebici prison-camp where, as the commander, he enjoyed command responsibility. Zdravko Mucic argued that command responsibility is limited to de jure commanders, or those superiors with control over subordinates equivalent to such de jure authority. The Appeals Chamber rejected that argument and agreed that a position of de facto command may be sufficient to establish the necessary superior-subordinate relationship so long as the relevant degree of control over subordinates has been established. The relevant superior-subordinate relationship is established where the superior has effective control over the persons committing the underlying violations of international humanitarian law, namely that they had the ability to prevent or punish the commission of these offences.

• Zdravko Mucic also submitted that the evidence presented did not establish that he was a de facto commander. The Appeals Chamber held that, based on the evidence before the Trial Chamber, a reasonable tribunal of fact could find that Zdravko Mucic exercised powers of control sufficient to constitute the exercise of de facto authority over the Celebici prison-camp and that no basis for reviewing the Trial Chamber's findings of fact had been put forth.

• The Prosecution appealed against the Trial Chamber's interpretation of the requirement in Article 7(3) of the Statute that a superior "knew or had reason to know" that a subordinate was about to commit crimes or had done so. The Appeals Chamber upheld the Trial Chamber's interpretation of the standard "had reason to know" in Article 7(3) of the Statute. This means that "a superior will be criminally responsible through the principles of superior responsibility only if information [of a general nature] was available to him which would have put him on notice of offences committed by subordinates."24

• The Prosecution also contended that the ability of an accused to exercise forms of influence should suffice to establish the relevant superior-subordinate relationship. The Appeals Chamber concluded that, although indirect as well as direct relationships of subordination would suffice, the relevant standard of effective control over subordinates must be established. It also held that any forms of influence which fall short of such control would not. The Appeals Chamber was satisfied that, on the evidence before the Trial Chamber, a reasonable tribunal of fact could acquit Zejnil Delalic on the ground that he was not a superior in the Celebici prison-camp with authority over those working there.

Unlawful confinement of civilians

• Both Zdravko Mucic and the Prosecution filed grounds of appeal relating to the charges of unlawful confinement of civilians. Zdravko Mucic challenged his conviction for that offence and the Prosecution challenged Zejnil Delalic's and Hazim Delic's having been acquitted of those offences.

  The Trial Chamber concluded that the offence of unlawful confinement of civilians is committed:

  - when civilians are involuntarily confined in contravention of Article 42 of Geneva Convention IV which provides that civilians may only be detained where there are reasonable grounds to believe that the security of the Detaining Power makes it absolutely necessary, and

  - when civilians are detained in violation of Article 43 of the Geneva Convention which provides that their detention must be reviewed by an appropriate court or administrative board.

  The Appeals Chamber confirmed the Trial Chamber's definition of the offence and accepted that, based on the evidence before the Trial Chamber, a reasonable tribunal of fact could find that the detainees in the Celebici prison camp had been unlawfully detained.

• The Appeals Chamber also confirmed that the Prosecution need not establish that a person must be in a position of superior authority to be found guilty of direct responsibility for this offence under Article 7(1) of the Statute and that a prison guard with no authority to release prisoners will not be guilty of the offence merely because he failed to take unauthorised steps to release them.

• The Appeals Chamber dismissed the Prosecution appeal against the acquittal of Zejnil Delalic on this charge on the ground that the Prosecution had failed to identify any evidence before the Trial Chamber demonstrating that a finding of guilty "was the only reasonable conclusion to be drawn"25. Similarly, it found that the Prosecution had not established that the Trial Chamber's conclusion that Hazim Delic was not guilty under Article 7(1) of the Statute "for the offence of unlawful confinement was unreasonable."26 As regards Zdravko Mucic's appeal against his conviction on this charge, the Appeals Chamber held that, based on the evidence before the Trial Chamber, a reasonable tribunal of fact could find that he had some authority to release prisoners, that he had failed to release those civilians whom he knew to be unlawfully detained because they had not received the necessary procedural review of their detention and that he was therefore guilty of this offence.

Cumulative convictions

• Hazim Delic and Zdravko Mucic challenged their convictions of charges based on the same facts. The charges alleged grave breaches of the Geneva Conventions under Article 2 of the Statute and violations of the laws or customs of war under Article 3 of the Statute. This was the first time that the issue of cumulative convictions has arisen for the express consideration of the Appeals Chamber.

  The Appeals Chamber majority held "that reasons of fairness to the accused and the consideration that only distinct crimes may justify cumulative convictions, led to the conclusion that multiple cumulative convictions entered under different statutory provisions but based on the same conduct are permissible only if each statutory provision involved has a materially distinct element not contained in the other."27 The Appeals Chamber defined the notion of a materially distinct element as being one which "requires proof of a fact not required by the other."28

  "Where this test is not met, the Chamber must decide in relation to which offence it will enter a conviction [...], on the basis that the conviction under the more specific provision should be upheld. Thus, if a set of facts is regulated by two provisions, one of which contains an additional materially distinct element, then a conviction should be entered only under that provision."29

  Where, as in the present case, the evidence establishes the guilt of an accused based on the same facts under Article 2 and Article 3 of the Statute, the conviction must be entered for the offence under Article 2 of the Statute, since "Article 2 of the Statute is more specific than common Article 3."30

  The challenge of Hazim Delic and Zdravko Mucic was therefore upheld and the charges against them under Article 3 of the Statute were dismissed. Since Esad Landzo was also cumulatively convicted under Articles 2 and 3 of the Statute, the charges against him under Article 3 of the Statute were dismissed, "although he did not file an appeal on this issue"31.

• Since the sentences of the three convicted co-accused might have been different had the Trial Chamber not imposed multiple convictions, the Appeals Chamber remitted the re-sentencing issue to a new Trial Chamber to be designated by the President of the Tribunal, "because this is a matter that lies within the discretion of the Trial Chamber"32.

Hazim Delic - factual issues

Hazim Delic challenged his convictions on ten counts covering five separate incidents on the ground that the Trial Chamber had erred in its relevant factual findings.

As regards the murder of Scepo Gotovac, one of the detainees in the Celebici prison-camp, the Appeals Chamber defined a circumstantial case as one consisting "of evidence of a number of different circumstances which, taken in combination, point to the guilt of the accused person because they would usually exist in combination only because the accused did what is alleged against him …. Such a conclusion must be established beyond reasonable doubt. It is not sufficient that it is a reasonable conclusion available from that evidence. It must be the only reasonable conclusion available. If there is another conclusion which is also reasonably open from that evidence and which is consistent with the innocence of the accused, he must be acquitted."33 Based on the evidence presented to it, the Appeals Chamber decided that the Trial Chamber's finding that Hazim Delic participated in the beating which caused the death of Scepo Gotovac was unreasonable. The convictions relating to this incident were quashed and verdicts of not guilty entered. In relation to the four other incidents, the Appeals Chamber emphasised that a "Trial Chamber is not required to articulate it its judgement every step of its reasoning in reaching particular findings"34 and concluded that, on the evidence before the Trial Chamber, a reasonable tribunal of fact could find him guilty of the offences charged.

The Prosecution interviews with Zdravko Mucic

Zdravko Mucic challenged the admission into evidence of interviews of him conducted by investigators from the Office of the Prosecutor following his arrest. He submitted that the Trial Chamber should have found that he had not voluntarily waived his right to counsel under the Statute and Rules and should have therefore excluded the evidence. Zdravko Mucic also claimed that the Trial Chamber had erred in refusing to subpoena the interpreter at the interviews to give evidence about conversations which took place between the investigators and himself before the interviews started and which may have led to the waiver.

The Appeals Chamber was not satisfied that any error had been demonstrated by the refusal of the Trial Chamber to issue a subpoena to the interpreter to give evidence. It held that a voir dire procedure35 could be of assistance in appropriate cases to determine any factual issues relating to the admissibility of evidence such as these but that the Trial Chamber had committed no error in the exercise of its discretion by not adopting that procedure in the absence of any clear indication that the accused would give evidence in relation to those issues.

The Appeals Chamber was satisfied that on the evidence before the Trial Chamber a reasonable tribunal of fact could find that Zdravko Mucic had expressed the wish to be interviewed without counsel and that the Trial Chamber had, accordingly, not erred in the exercise of its discretion to allow the evidence to be tendered on that basis.

Diminished mental responsibility

Before the trial, Esad Landzo gave notice that pursuant to the Rules of Procedure and Evidence he would be relying on the "special defence" of diminished mental responsibility. He submitted that such a defence amounted to a complete defence against the offences with which he had been charged and would produce an acquittal. Esad Landzo argued that the Trial Chamber had erred by refusing to define the "special defence" in advance of evidence being given to support that defence. The Appeals Chamber held that a Trial Chamber need not define such issues in advance and that, in any event, no prejudice had been established as a result of that refusal. Esad Landzo also challenged the Trial Chamber's rejection of the "special defence" as "inconsistent with the great weight of the evidence".

The Appeals Chamber distinguished an alibi from "the issue of lack of mental capacity", which, "if successful, is a complete defence to a charge" leading to an acquittal. The Judges referred to Article 15 of the Statute36, Rule 67(A)(ii)37 and the Judgement on Allegations of Contempt Against Prior Counsel, Milan Vujin, rendered on 31 January in the case The Prosecutor v. Dusko Tadic38. The Appeals Chamber held that there is therefore "no power to adopt rules which constitute new defences."39 It also found that an accused's diminished mental responsibility is relevant to the sentence to be imposed but is not a defence against offences charged under the Statute. The Appeals Chamber interpreted Rule 67(A)(ii)(b) "as referring to diminished mental responsibility where it is to be raised by the defendant as a matter in mitigation of sentence. As a defendant bears the onus of establishing matters in mitigation of sentence, where he relies upon diminished mental responsibility in mitigation, he must establish that condition on the balance of probabilities - that more probably than not such a condition existed at the relevant time."40 The Appeals Chamber also held that, in any event, on the evidence before the Trial Chamber, a reasonable tribunal of fact could reject the evidence of Esad Landzo about the state of his mind on which the psychiatrists testifying relied, and therefore, as did the Trial Chamber, reject their opinion that he suffered from diminished mental responsibility.

Selective prosecution

Esad Landzo challenged his conviction on the ground that he was the victim of discriminatory selective prosecution.

In 1998, the Office of the Prosecutor withdrew indictments against several low ranking accused subsequent to a change of prosecutorial strategy. Esad Landzo alleged that the charges against him were discriminatory since he was a young Muslim camp guard whereas the others against whom indictments had been withdrawn were all non-Muslims of Serb ethnicity. He contended that he was prosecuted as a "representative" of the Bosnian Muslims.

The Appeals Chamber held that the Prosecutor enjoys "a broad discretion in relation to the initiation of investigations and in the preparation of in indictments"41, recognised by Article 18(1) of the Statute42. This discretion is however limited by the "principle of international law of equality before the law, which encompasses the requirement that there should be no discrimination in the enforcement or application of the law [...] based on impermissible motives such as, inter alia, race, colour, religion, opinion, national or ethnic origin."43 The Appeals Chamber also stated that "the breadth of the discretion of the Prosecutor, and the fact of her statutory independence, imply a presumption that the prosecutorial functions under the statute are exercised regularly. This presumption may be rebutted by an appellant who can bring evidence to establish that the discretion has in fact not been exercised in accordance with the Statute"44. The burden of the proof therefore rests on the accused who must demonstrate (1) "that the decision to prosecute him or to continue his prosecution was based on impermissible motives" and (2) "that the Prosecution failed to prosecute similarly situated defendants."45

In the instant case, the Appeals Chamber considered that Esad Landzo had failed to adduce any evidence to establish an abuse of discretion and therefore not proved that he was "the subject of a discriminatory selective prosecution."46

Judge Karibi-Whyte

Esad Landzo challenged the fairness of his trial on the ground that the Presiding Judge, Judge Karibi-Whyte, was "asleep during substantial portions of the trial"47. At a late stage of the appellate proceedings, Hazim Delic and Zdravko Mucic adopted this ground of appeal. The burden of the argument was however left to Esad Landzo. The parties agreed that the relevant principle was that proof of a judge's having slept through part of the proceedings or otherwise not having been completely attentive is a matter which, if it causes actual prejudice to a party, may affect the fairness of the proceedings to such a degree as to give rise to a right to a new trial or other adequate remedy.

From the audio-visual records of the trial produced by the courtroom cameras generally focussed on the judges' bench, both Esad Landzo and the Prosecution selected, those portions of the records on which they relied to support this ground of appeal and to oppose it.

The Appeals Chamber found that the appellants had manifestly failed to establish the allegation that Judge Karibi-Whyte was "asleep during substantial portions of the trial", but that the portions of the videotapes relied on by Esad Landzo nevertheless demonstrated a recurring pattern of behaviour where the judge appears not to have been fully conscious of the proceedings for short periods of time. These periods were usually five to ten seconds long, sometimes up to thirty seconds, but they were repeated over extended periods of ten to fifteen minutes. On one occasion only, the judge appeared to be asleep for approximately thirty minutes. The Appeals Chamber did consider whether, notwithstanding their failure to establish the factual basis of these grounds of appeal, the appellants had a valid cause for complaint as to the fairness of the trial.

The Appeals Chamber firmly stated that Judge Karibi-Whyte's conduct cannot be accepted as appropriate for a judge. It also commented that, if a judge suffers from a condition preventing full attention during the trial, he or she must seek medical assistance and, if this is ineffective, withdraw from the case. However, for a judgement to be quashed on this basis, it must be established "that some identifiable prejudice was caused"48. The failure of counsel to object at trial to the conduct in question is relevant to whether such prejudice has been established. The requirement that the issue be raised during the proceedings is not simply an application of a formal doctrine of waiver but a matter indispensable to the granting of fair and appropriate relief.

The Appeals Chamber was not satisfied that any "specific prejudice" was suffered by Esad Landzo or the other appellants. In the "absence of any actual prejudice", the Appeals Chamber rejected the ground of appeal.

Judge Odio Benito and the Vice-Presidency of Costa Rica

During the trial, Judge Odio Benito was elected Second Vice-President of Costa Rica and took an oath of office as such. All three convicted co-accused submitted that she had ceased to meet the qualifications for a judge of the Tribunal and alleged that, because she was no longer independent, she should have disqualified herself by reason of those facts.

The Appeals Chamber held that "any interpretation of Article 13 of the Statute49 must take into account the restriction imposed by Article 12 of the Statute50, that no two judges may be nationals of the same State."51 It considered that the intention of Article 13 of the Statute must "be to ensure, so far as possible, that the essential qualifications d[o] not differ from judge to judge. Those essential qualifications are character (encompassing impartiality and integrity), legal qualifications (as required for appointment to the highest judicial office) and experience (in criminal law, international law, including international humanitarian law and human rights law)."52 The Appeals Chamber rejected the argument that her election as Second Vice-President of Costa Rica constitutionally disqualified Judge Odio Benito for election as a magistrate of the Supreme Court of Justice under the Constitution of that country.

The Appeals Chamber also dismissed the argument that Judge Odio Benito should have disqualified herself as a judge "because she no longer possessed the necessary judicial independence required by international law."53 The Appeals Chamber referred to the test set forth in its Judgement of 21 July 2000 in the case The Prosecutor v. Anto Furundzija54. It did not accept here that the judge "exercised any executive functions in Costa Rica during the time she was also a judge of the Tribunal."55 The Appeals Chamber considered that the appellants failed to establish that the reaction of the hypothetical observer (with sufficient knowledge of the circumstances to make a reasonable judgement) would be "that she might not bring an impartial and unprejudiced mind to the issues arising" in the instant case56.

Judge Odio Benito and the Victims of Torture Fund

All three convicted co-accused alleged that Judge Odio Benito was automatically disqualified as a judge of the Tribunal because, when this case was heard, she was a member of the Board of Trustees of the United Nations Voluntary Fund for Victims of Torture. They contended that, since the indictment against them included allegations of torture, there was a strong appearance of bias on the part of the judge against the accused who were the subject of those allegations.

The Appeals Chamber again referred to its Judgement of 21 July 2000 in The Prosecutor v. Anto Furundzija. It held that the same hypothetical observer would be aware that this fund focussed its activity on fundraising to provide assistance to the victims of torture - through the receipt and redistribution of donations for humanitarian, legal and financial aid - and would not expect judges to be morally neutral about the issue of torture. The observer would expect judges to hold the view that persons responsible for torture should be punished, but not to hold a "bias against any person accused of torture."57

Sentencing

All the parties, with the exception of Zejnil Delalic, filed grounds of appeal on the sentencing. The Prosecution challenged the seven-year sentence imposed on Zdravko Mucic, to be served concurrently, as "manifestly inadequate". Zdravko Mucic claimed that his sentence was too long.

The Appeals Chamber first addressed several general considerations and reiterated that both Article 24 of the Statute58 and Rule 10159 contain general guidelines which amount to an obligation on the Trial Chamber to take into account aggravating and mitigating factors when it passes sentence. The Appeals Chamber acknowledged that Trial Chambers exercise considerable discretion in determining the appropriate sentence imposed which, to a great extent, depends on the individual facts of the case and the individual circumstances of the convicted person. It consequently concluded "that it is inappropriate for it to attempt to list exhaustively the factors that it finds should be taken in to account by a Trial Chamber in determining sentence."60

The Appeals Chamber confirmed "its acceptance of the principle that the gravity of the offence is the primary consideration in imposing sentence."61 It found that the Trial Chamber had failed to take adequate account of the gravity of the offences committed by Zdravko Mucic in exercising its sentencing discretion and that, in a number of respects, had failed to consider or give inadequate weight to several aggravating factors. The "sentence imposed on him did not adequately reflect the totality of his criminal conduct."62 The Appeals Chamber emphasised that "one of the fundamental elements in any rational and fair system of criminal justice is consistency in punishment"63 and "that a person who is convicted of many crimes should generally receive a higher sentence than a person convicted of only one of those crimes."64 It rejected a Prosecution complaint that the Trial Chamber had erred when it did not take into account criminal conduct not specifically alleged in the indictment in relation to which the Prosecution had not requested the Trial Chamber to make specific findings. The Appeals Chamber accepted a complaint of Zdravko Mucic that the Trial Chamber had erred in drawing an adverse inference in its sentencing considerations in respect of the fact that Zdravko Mucic had declined to give oral testimony at the trial. It has rejected his other complaints.

The Appeals Chamber indicated that, taking into account the various considerations relating to the gravity of his offences, all the aggravating and the mitigating circumstances to which the Trial Chamber had referred and the "double jeopardy" element involved in re-sentencing, it would have imposed on Zdravko Mucic "a heavier sentence of a total of around ten years imprisonment."65 The new Trial Chamber can consider this figure when determining its sentence.

Hazim Delic challenged his sentence on the ground that the Trial Chamber had contravened the principles of legality by imposing heavier sentences on him than those permitted at the relevant time under the sentencing laws and practice of the former Yugoslavia. The Appeals Chamber rejected that challenge. It also stated that whilst Trial Chambers must, as required by Article 24(1) of the Statute, have recourse to the general practice regarding sentencing in the courts of the former Yugoslavia, they are not bound by that practice66. The Appeals Chamber also concluded that the sentences imposed on Hazim Delic were not shown to be excessive or in any way outside of the Trial Chamber's sentencing discretionary framework.

Esad Landzo challenged his sentence on the ground that it was manifestly excessive. He sought to show a disparity between his sentence and those imposed on persons convicted in other cases before the Tribunal. The Appeals Chamber did not accept his comparisons and, accordingly, found "that the sentence imposed was clearly within the Trial Chamber's discretionary framework."67 It also concluded that the Trial Chamber had adequately considered the mitigating factors, including inter alia voluntary surrender and admission of guilt.

Judgement

The Appeals Chamber affirmed the acquittal of Zejnil Delalic, dismissed all counts charging Zdravko Mucic, Hazim Delic and Esad Landzo with violations of the laws or customs of war on the ground of cumulative convictions and held that a Trial Chamber would reconsider the remaining sentences of the convicted accused for possible adjustment.

Separate and Dissenting Opinion of Judge David Hunt and Judge Mohamed Bennouna

• Judge Hunt and Judge Bennouna agreed with the majority that cumulative convictions should be permissible only where each offence has a materially different element not contained in the other. However, they proposed the application of different tests to determine whether two crimes are legally distinct and, where cumulative convictions are not permissible, to determine which offence should carry the conviction.

• The Judges emphasised that "the fundamental consideration arising from charges relating to the same conduct is that an accused should not be penalised more than once for the same conduct. The purpose of applying this test is therefore to determine whether the conduct of the accused genuinely encompasses more than one crime."68 The test should focus "on the substantive elements which relate to an accused's conduct, including his mental state."69 Judge Hunt and Judge Bennouna reiterated that the "fundamental function of the criminal law is to punish the accused for his criminal conduct, and only for his criminal conduct"70 and considered that a test should "be applied solely for the purpose of determining whether the criminal conduct of an accused in any given case can fairly be characterised as constituting more than one crime."71 The application of this test would result in "only those elements relating to the conduct and mental state of the accused being taken into account."72 The Judges pointed out that the "most rational and fair outcome is to impose one conviction which receives a sentence"73 that recognises the seriousness of that crime.

  The Judges emphasised their agreement with the conclusions of the majority "that, when a choice must be made between cumulatively charged offences, that choice must be made by reference to specificity, but only in the sense that the crime which more specifically describes what the accused actually did in the circumstances of the particular case should be selected. [...] The choice should involve a consideration of the totality of the circumstances of the particular case and of the evidence given in relation to the crimes charged, in order to describe most accurately the offence that the accused committed and to arrive at the closest fit between the conduct and the provision violated. This would involve a consideration of all of the elements of the offences to determine whether one of the offences better or more specifically describes what the accused did."74 The Judges specified that it "will often be a substantive element relating to the accused's conduct or state of mind which provides the basis on which a meaningful choice can be made as to the better description of the accused's conduct."75 The result would then reach the ultimate function of criminal proceedings, namely "to recognise and penalise with the most appropriate conviction the proven criminal conduct of an accused."76 Through "an examination of the circumstances of the case and of the evidence given in relation to the crimes charged, the aim is to determine which of the crimes describes most accurately what the accused did."77

  The application of these tests would in some cases have produced different sentencing consequences.

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1. "The International Tribunal shall have the power to prosecute persons committing or ordering to be committed grave breaches of the Geneva Conventions of 12 August 1949, namely the following acts against persons or property protected under the provisions of the relevant Geneva Convention:
(a) wilful killing;
(b) torture or inhuman treatment, including biological experiments;
(c) wilfully causing great suffering or serious injury to body or health;
(d) extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;
(e) compelling a prisoner of war or a civilian to serve in the forces of a hostile power;
(f) wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial;
(g) unlawful deportation or transfer or unlawful confinement of a civilian;
(h) taking civilians as hostages."
2. Para. 50.
3. The Prosecutor v. Dusko Tadic ("Prijedor"), Case No. IT-94-1-A, Appeals Chamber, Judgement, 15 July 1999 (summarised in Judicial Supplement No. 6).
4. The Prosecutor v. Zlatko Aleksovski ("Lasva River Valley"), Case No. IT-95-14/1-A, Appeals Chamber, Judgement, 24 March 2000 (summarised in Judicial Supplement No. 13).
5. Ibidem, para. 145.
6. Ratio decidendi which means the reason for deciding is the principle of law or ground on which a court's decision is founded.
7. The Prosecutor v. Zlatko Aleksovski ("Lasva River Valley"), Case No. IT-95-14/1-A, Appeals Chamber, Judgement, 24 March 2000 (summarised in Judicial Supplement No. 13), paras. 107 and 108.
8. Ibidem, para. 151.
9. The Prosecutor v. Dusko Tadic ("Prijedor"), Case No. IT-94-1-A, Appeals Chamber, Judgement, 15 July 1999, paras. 163 to 171.
10. Para. 84.
11. Idem.
12. Para. 105.
13. Para. 106.
14. Para. 110.
15. Para. 111.
16. Para. 112.
17. Report of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808 [1993], S/25704, 3 May 1993, page 9, para. 34.
18. "The International Tribunal shall have the power to prosecute persons violating the laws or customs of war. Such violations shall include, but not be limited to:
(a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering;
(b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
(c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings;
(d) seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science;
(e) plunder of public or private property."
19. The Prosecutor v. Dusko Tadic ("Prijedor"), Case No. IT-94-1-AR72, Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995.
20. Para. 150.
21. Para. 140.
22. Para. 143.
23. "A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime."
24. Para. 241.
25. Para. 360.
26. Para. 369.
27. Para. 412.
28. Idem.
29. Para. 413.
30. Para. 420.
31. Para. 414.
32. Para. 431.
33. Para. 458.
34. Para. 481.
35. A voir dire procedure "allows for arguments and evidence to be brought before the court solely on a defined issue and would provide an accused with the opportunity to give evidence on a limited basis, prohibiting questions beyond the issues raised. It would ensure in general that arguments and evidence led be confined to the issue in dispute and not extend to discussion of the facts of the case itself." (Para. 541)
36. "The judges of the International Tribunal shall adopt rules of procedure and evidence for the conduct of the pre-trial phase of the proceedings, trials and appeals, the admission of evidence, the protection of victims and witnesses and other appropriate matters."
37. "As early as reasonably practicable and in any event prior to the commencement of the trial […] the defence shall notify the Prosecutor of its intent to offer :
(a) the defence of alibi; in which case the notification shall specify the place or places at which the accused claims to have been present at the time of the alleged crime and the names and addresses of witnesses and any other evidence upon which the accused intends to rely to establish the alibi;
(b) any special defence, including that of diminished or lack of mental responsibility; in which case the notification shall specify the names and addresses of witnesses and any other evidence upon which the accused intends to rely to establish the special defence."
38. The Prosecutor v. Dusko Tadic ("Prijedor"), Case No. IT-94-1-AR77, Appeals Chamber, Judgement on Allegations of Contempt Against Prior Counsel, Milan Vujin, 31 January 2000 (summarised in Judicial Supplement No. 11).
39. Para. 583.
40. Para. 590.
41. Para. 602.
42. "The Prosecutor shall initiate investigations ex-officio or on the basis of information obtained from any source, particularly from Governments, United Nations organs, intergovernmental and non-governmental organisations. The Prosecutor shall assess the information received or obtained and decide whether there is sufficient basis to proceed."
43. Para. 605.
44. Para. 611.
45. Para. 607.
46. Para. 615.
47. Para. 620.
48. Para. 630.
49. Article 13 of the Statute, as amended by Annex I to Security Council resolution 1329 of 30 November 2000, provides that: "The permanent and ad litem judges shall be persons of high moral character, impartiality and integrity who possess the qualifications required in their respective countries for appointment to the highest judicial offices. In the overall composition of the Chambers and sections of the Trial Chambers, due account shall be taken of the experience of the judges in criminal law, international law, including international humanitarian law and human rights law."
50. Article 12 of the Statute, also amended by Annex I to Security Council resolution 1329 of 30 November 2000, reads as follows:
"1. The Chambers shall be composed of sixteen permanent independent judges, no two of whom may be nationals of the same State, and a maximum at any one time of nine ad litem independent judges appointed in accordance with Article 13 ter, paragraph 2, of the Statute, no two of whom may be nationals of the same State.
2. Three permanent judges and a maximum at any one time of six ad litem judges shall be members of each Trial Chamber. Each Trial Chamber to which ad litem judges are assigned may be divided into sections of three judges each, composed of both permanent and ad litem judges. A section of a Trial Chamber shall have the same powers and responsibilities as a Trial Chamber under the Statute and shall render judgement in accordance with the same rules.
3. Seven of the permanent judges shall be members of the Appeals Chamber. The Appeals Chamber shall, for each appeal, be composed of five of its members."
51. Para. 659.
52. Idem.
53. Para. 677.
54. The Prosecutor v. Anto Furundzija ("Lasva River Valley"), Case No. IT-95-17/1-A, Appeals Chamber, Judgement, 21 July 2000 (summarised and analysed in Judicial Supplement No. 18).
55. Para. 685.
56. Para. 692.
57. Para. 700.
58. "1. The penalty imposed by the Trial Chamber shall be limited to imprisonment. In determining the terms of imprisonment, the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia. 2. In imposing the sentences, the Trial Chambers should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person. 3. In addition to imprisonment, the Trial Chambers may order the return of any property and proceeds acquired by criminal conduct, including by means of duress, to their rightful owners."
59. "(A) A convicted person may be sentenced to imprisonment for a term up to and including the remainder of the convicted person's life.
(B) In determining the sentence, the Trial Chamber shall take into account the factors mentioned in Article 24, paragraph 2, of the Statute, as well as such factors as:

(i) any aggravating circumstances;
(ii) any mitigating circumstances including the substantial co-operation with the Prosecutor by the convicted person before or after conviction;
(iii) the general practice regarding prison sentences in the courts of the former Yugoslavia;
(iv) the extent to which any penalty imposed by a court of any State on the convicted person for the same act has already been served, as referred to in Article 10, paragraph 3, of the Statute.

(C) Credit shall be given to the convicted person for the period, if any, during which the convicted person was detained in custody pending surrender to the Tribunal or pending trial or appeal."
60. Para. 718.
61. Para. 731.
62. Para. 755.
63. Para. 756.
64. Para. 771.
65. Para. 853.
66. See also The Prosecutor v. Dusko Tadic ("Prijedor"), Case No. IT-94-1-Abis, Appeals Chamber, Judgement in Sentencing Appeals, 26 January 2000 (summarised in Judicial Supplement No. 11), in which the Judges held "that a Trial Chamber's discretion in imposing sentence is not bound by any maximum term of imprisonment applied in a national system." (Para. 21); The Prosecutor v. Jean Kambanda, Case No. ICTR-97-23-S, Trial Chamber I, Judgement and Sentence, 4 September 1998, in which the Judges held that the reference to the general practice regarding prison sentences in Rwanda "can be used for guidance, but is not binding." (Para. 23); The Prosecutor v. Omar Serushago, Case No. ICTR-98-39-A, Appeals Chamber, Reasons for Judgement, 6 April 2000, in which the Judges held "that the requirement that 'the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of Rwanda' does not oblige the Trial Chambers to conform to that practice; it only obliges the Trial Chambers to take account of that practice." (Para. 30)
67. Para. 834.
68. Para. 26.
69. Idem.
70. Para. 27.
71. Para. 28.
72. Para. 33.
73. Idem.
74. Para. 37.
75. Para. 38.
76. Para. 39. See also The Prosecutor v. Kupreskic et al. ("Lasva River Valley"), Case No. IT-95-16-T, Trial Chamber II, Judgement, 14 January 2000 (summarised in Judicial Supplement No. 11, in which the Judges held that "[t]he sentences to be imposed must reflect the inherent gravity of the criminal conduct of the accused." (Para. 852); The Prosecutor v. Zlatko Aleksovski ("Lasva River Valley"), Case No. IT-95-14/1-A, Appeals Chamber, Judgement, 24 March 2000 (summarised in Judicial Supplement No. 13), in which the Judges observed that "[c]onsideration of the gravity of the conduct of the accused is normally the starting point for consideration of an appropriate sentence." (Para. 182); The Prosecutor v. Jean Kambanda, Case No. ICTR-97-23-A, Appeals Chamber, Judgement, 19 October 2000, in which the Judges noted that "[a] sentence imposed should reflect the inherent gravity of the criminal conduct." (Para. 125)
77. Para. 52.