"Judgement"

14 December 1999
Trial Chamber I (Judges Jorda [Presiding], Riad and Rodrigues)

The Issue

In the original Indictment of 30 June 1995, Goran Jelisic was accused of genocide, grave breaches of the Geneva Convention, violations of the laws or customs of war and crimes against humanity. Jelisic was arrested on 22 January 1998. At his initial appearance on 26 January, he pleaded not guilty to all counts.

At the request of the Prosecution, the Indictment was first amended so that all the charges based on Article 2 of the Statute for grave breaches of the Geneva Conventions could be withdrawn and a first amended indictment was filed on 13 May 1998.

Further to discussions between the parties and a status conference, an "Agreement on the facts relating to the guilty pleas considered by Goran Jelisic" was signed. On the basis of this agreement, a new indictment was prepared and filed on 20 October 1998. On 29 October 1998, Jelisic pleaded guilty to war crimes and crimes against humanity as described in the Agreement1. He pleaded not guilty to the charge of genocide.

The Trial commenced on 30 November 1998. The Judgement was handed down on 19 October prior to the Defence commencing its case-in-chief2.

Guilty Plea:3

According to Rule 62 bis, in order for a guilty plea to constitute a sufficient basis for convicting an accused, the Judges must be satisfied that the guilty plea was:

- made voluntarily
- informed
- not equivocal
- there is a sufficient basis for the crime and the accused's participation in it4.

The agreement of the parties as to the crimes ascribed is not sufficient. The Judges must also find the elements in the case-file upon which to base their conviction that the accused is indeed guilty of this crime both fact and in law5. The Trial Chamber was satisfied that the counts to which Jelisic pleaded guilty were factually grounded6 and that their legal characterisation was correct7.

Two elements deserve to be specifically underlined with regard to the Trial Chamber crimes against humanity finding. First, the Trial Chamber offered several elements from which the systematic or widespread nature of the crimes can be inferred. It encompasses8: "The existence of an acknowledged policy targeting a particular community, the establishment of parallel institutions meant to implement this policy, the involvement of high-level political or military authorities, the employment of considerable financial, military or other resources and the scale or the repeated, unchanging and continued nature of the violence committed against a particular civilian population are all factors which may reveal the widespread or systematic nature of an attack."9 In addition, in order to be found guilty, the accused must be aware that his crimes are part of this widespread or systematic attack.

Second, with regard to the civilian nature of the population10, the Trial Chamber declared that the adjective civilian had to be defined broadly11, highlighting the fact that Article 5 refers to any12 civilian population. According to the Trial Chamber, the reference to the civilian population does emphasise the collective nature of the crimes amounting to crimes against humanity rather than strictly the status of the victims13. The Trial Chamber thus considered that the concept of 'civilian population' as enshrined in Article 5 covers not only the civilians stricto sensu, but also all those people placed hors de combat while the crimes were committed14.

The Trial Chamber concluded that Jelisic's guilty plea in respect of war crimes and crimes against humanity was entered under conditions allowing the plea to be accepted. Accordingly, he was found guilty of these crimes.

On Genocide:15

On 22 September 1999, the Prosecution informed the Trial Chamber that, save for one point, the presentation of its case had been completed16. After reviewing all the evidence put forth by the Prosecution, the Trial Chamber concluded that, even without needing to hear any possible Defence arguments in favour of the accused, it could not hold him guilty of the crime of genocide. In these circumstances, pursuant to Rule 98 bis of the Rules and proprio motu, the Trial Chamber had to order the judgement of acquittal for that crime17. On 14 December 1999, the Trial Chamber gave its reasoned Judgement.

According to the Trial Chamber, the concept of genocide is constituted of two elements18: 1) a material element, namely one or several of the crimes mentioned in Article 4(2) and 2) a mental element, namely a specific intent to destroy, in whole or in part, a national, ethnical, racial or religious group.

With regard to the material element, the Trial Chamber was satisfied that the murders of members of a given group fulfilled the material requirement for genocide19. However, the external signs of genocide are not sufficient20. Thus the additional requirement of specific intent or dolus specialis.

The mental element of genocide consists of the intent to destroy, in whole or in part, a national, ethnical, racial or religious group. Two elements stem from that definition. First, the victims must be members of a particular group and must be targeted for that very reason. Second, the crimes must be part of an overall plan to destroy the group as such21.

With regard to the first element, genocide is similar to the crime of persecution22. The scope of the protected group is subjectively defined. A group is regarded as a national, ethnical, racial or religious group protected under Article 4 to the extent that it is perceived as such by those who want to distinguish it, positively or negatively23, from the rest of the community. Thus, what matters is "the stigmatisation of a group as a distinct national, ethnical, racial or religious unit by the community which would allow it to be determined whether a targeted population constitutes a national, ethnical or racial group in the eyes of the perpetrators."24

In seeking proof of discriminatory intent, the Trial Chamber took account of not only the general context in which the acts of the accused fit but also, in particular, his words and deeds25. In the present instance, the Trial Chamber was satisfied that Jelisic discriminatory intent had been established.

What distinguishes genocide from persecution26, and from any other crime, is the object and scope of the discriminatory intent. In the case of genocide, the dolus specialis amounts to an intent to destroy, in whole or in part, a group as such. "Apart from its discriminatory characteristics, the underlying crime is also characterised by the fact that it forms part of a wider plan to destroy, in whole or in part, the group as such.27" As a crime directed towards a group, the genocidal intent is necessarily directed towards mass crimes. The genocidal intent must therefore cover a substantial part of the targeted group28. According to the Trial Chamber, this can take two forms: 1) the intent can be to destroy a large number of members of the targeted group or 2) to target a limited number of selected people, whose disappearance would endanger the survival of the group29. The Trial Chamber went on to declare that the scope of a genocide could be geographically limited30.

With regard to the degree of criminal intent required31, the Trial Chamber stated that, in order to establish Jelisic's genocidal intent, the Prosecutor had to prove either that 1) Jelisic was an executioner, a willing aider and abettor which would require an "all-inclusive" genocidal project, or that 2) he himself committed genocide. The Trial Chamber considered that neither had been proved.

With regard to the "all-inclusive" genocide scenario, the Trial Chamber declared that the organisational aspect that such a plan would imply had not been established to its satisfaction32. The second scenario puts Jelisic in the role of a perpetrator in which he "harboured the plan to exterminate an entire group without this intent having been supported by any organisation in which other individuals participated."33 Although conceivable as a matter of principle, the Trial Chamber pointed out that such a scenario would be difficult to prove34. After reviewing Jelisic’s psychological evaluation35, the Trial Chamber found that Jelisic's declarations and actions could not be interpreted as the expression of a person with the conscious intention to destroy a group as such because, in addition to being clearly odious and discriminatory, they were also and primarily opportunistic and inconsistent36.

The Trial Chamber concluded that the Prosecution had therefore failed to establish that Goran Jelisic committed these acts with the required genocidal intent. Accordingly, he was found not guilty of the crime of genocide37.

The Sentence:38

Apart from a statement on the purposes of sentences, two issues are of particular legal interest with regard to sentencing39. First, the Trial Chamber proceeded to a weighing of the mitigating40 and aggravating41 factors and concluded that, in the present case, the latter far outweighed the former42. That, according to the Chamber, justified a particularly harsh sentence. Second, although the crimes were given two distinct characterisations, the Trial Chamber considered that they "form part of a single set of crimes committed over a brief time span which does not allow for distinctions between their respective criminal intentions and motives" and that single penalty may thus be imposed for all crimes43.

Consequently, Goran Jelisic was sentenced to 40 years imprisonment.

_____________________________________________________
1. 16 counts of violations of the laws or customs of war and 15 counts of crimes against humanity. Those 31 counts cover thirteen murders, inhumane acts, cruel treatment and plunder.
2. See below for the reasoning behind the decision to cut short the proceedings.
3. Paragraphs 24 to 58 (pages 7-20) are devoted to the issue of guilty plea.
4. On the issue of guilty plea, see The Prosecutor v. Erdemovic, Sentencing Judgement, 29 November 1996, and The Prosecutor v. Erdemovic, Judgement (Appeals Chamber), 7 October 1997.
5. Para. 25.
6. The Trial Chamber recalled the psychological evaluation which confirmed that Jelisic was in a position to understand the nature of the charges against him and to follow the trial in full awareness of what was occurring. It also underlined the lengthy discussions between the parties that preceded the guilty plea and the testimony offered by the Prosecution during the presentation of its case in respect of Jelisic's crimes (para. 27).
7. Pages 8-20. In respect of murders and physical abuse, the Trial Chamber was convinced that they not only contravene the laws of war but also amount to crimes against humanity; With regard to the violations of the laws or customs of war, see paras. 32-49. With regard to crimes against humanity, see paras. 50-56.
8. Para. 53.
9. More generally, on the requirement of widespread or systematic, see The Prosecutor v. Tadic, Judgement, 7 May 1997, para. 646-7 and The Prosecutor v. Mrksic et al. ('Vukovar Hospital'), Decision on Review of Indictment Pursuant to Rule 61, 3 April 1996.
10. Article 5 of the Statute: "The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population (emphasis added)."
11. Para. 54: "It appears from the letter and the spirit of Article 5 that the term 'civilian population' must be interpreted broadly."
12. "quelle qu'elle soit" in the French text.
13. Para. 54. See also The Prosecutor v. Tadic, Judgement, 7 May 1997, para. 648: "It is therefore the desire to exclude isolated or random acts from the notion of crimes against humanity that led to the inclusion of the requirement that the acts must be directed against a civilian 'population'." See also Report of the Committee of Experts constituted pursuant to SC Resolution 780 (1992), UN off. doc., S/1994/674, para. 78.
14. Para. 54. See also The Prosecutor v. Akayessu, Judgement, 2 September 1998, para. 582: "Where there are certain individuals within the civilian population who do not come within the definition of civilians, this does not deprive the population of its civilian character." See also The Prosecutor v. Tadic, Judgement, 7 May 1997, para. 643-644 and The Prosecutor v. Mrksic et al. ('Vukovar Hospital'), Decision on Review of Indictment Pursuant to Rule 61, 3 April 1996.
15. Paragraphs 59 to 108 (pages 20-39) are devoted to the issue of genocide.
16. The point at issue dealt with knowing whether a Prosecution witness could appear in order to confirm the statements of another Prosecution witness who had asserted that the accused played Russian roulette with him.
17. Rule 98 bis states: "If, after the close of the case for the prosecution, The Trial Chamber finds that the evidence is insufficient to sustain a conviction on one or more offences charged in the indictment, the Trial Chamber, on motion of an accused or proprio motu, shall order the entry of judgement of acquittal on that or those charges."
18. Article 4 of the Statute.
19. Article 4(2)(a).
20. The Presiding Judge made that point clear when he stated that "admittedly, through his behaviour and statements which witnesses claim he made, in particular those expressing a profound contempt for the Muslim population, Goran Jelisic presents the external signs of a perpetrator of genocide within the widely-accepted meaning of the term." Summary of the Judgement, as read out by the Presiding Judge on 14 December 1999.
21. In the original French text, para. 66: " l'auteur présumé doit inscrire son acte dans un projet plus vaste de destruction du groupe comme tel."
22. Para. 68.
23. See Paragraphs 71 and 72: (71) A group may be stigmatised in this manner by way of positive or negative criteria. A "positive approach" would consist of the perpetrators of the crime distinguishing a group by the characteristics which they deem to be particular to a national, ethnical, racial or religious group. A "negative approach" would consist of identifying individuals as not being part of the group to which the perpetrators of the crime consider that they themselves belong and which to them displays specific national, ethnical, racial or religious characteristics. Thereby all individuals thus rejected would, by exclusion, make up a distinct group. The Trial Chamber concurs here with the opinion already expressed by the Commission of Experts and, where a group is stigmatised by the perpetrators of the act on this second basis, deems that to consider the Convention's provisions as also protecting groups defined by exclusion does indeed comply with the object and the goal of the said Convention. (72) In this case, it is the positive approach towards a group which has been advanced by the Prosecution. The genocide charge states that the murders committed by the accused targeted the Bosnian Muslim population.
24. Para. 70. See also The Prosecutor v. Nikolic, Review of Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, 20 October 1995.
25. Para. 73. The Trial Chamber went on to state that "an individual acting in the knowledge of the widespread and systematic violence being committed against one specific group only could not reasonably deny that he chose his victims discriminatorily."
26. In the case of persecution, the victim is selected because he or she is a member of a particular group but, in this case, the criminal does not necessarily intend to destroy the group of which he or she is a member. See footnote 107 of the Judgement.
27. Para. 79. See also The Prosecutor v. Akayessu, Judgement, 2 September 1998, para. 522: "The perpetration of the [genocidal] act charged therefore extends beyond its actual commission, for example, the murder of a particular individual, for the realisation of an ulterior motive, which is to destroy, in whole or in part, the group of which the individual is just an element."
28. Para. 82 and footnote 111.
29. Para. 82.
30. Para. 83: "The Trial Chamber thus finds that, in view of the object and goal of the Convention and the subsequent interpretations thereof, international custom admits the characterisation of genocide even when the exterminatory intent only extends to a reduced geographical zone."
31. See paras. 84-87.
32. The existence of killing lists remained obscure and the command structure blurred (paras. 88-98). Para. 98: "The Trial Chamber considers that, in this case, the Prosecutor has not provided sufficient evidence allowing it to be established beyond all reasonable doubt that there existed a plan to destroy the Muslim group in Brcko or elsewhere within which the murders committed by the accused allegedly fit." The Trial Chamber, nevertheless, underlined that this finding in no way negated that such a genocide might have taken place in this region but only that it had not been established to the satisfaction of the court.
33. Para. 100. Premeditation is not required, but the genocidal intent cannot be presumed (see paras. 100 and 78).
34. Paras. 100-101.
35. Para. 105.
36. Paras. 102-108.
37. Para. 108.
38. Paragraphs 109 to 139 (pages 39-48) deal with the issue of sentence.
39. Paras. 110-118.
40. Paras. 124-128.
41. Paras. 129-134.
42. Para. 134.
43. Para. 137.