744. The Trial Chamber concludes that the acts ascribed to Tihomir Blaskic occurred as part of an international armed conflict because the Republic of Croatia exercised total control over the Croatian Community of Herceg-Bosna and the HVO and exercised general control over the Croatian political and military authorities in central Bosnia.
745. The accused was appointed by the Croatian military authorities. Following his arrival in Kiseljak in April 1992, he was designated chief of the Central Bosnia Operative Zone on 27 June 1992 and remained there until the end of the period covered by the indictment. From the outset, he shared the policy of the local Croatian authorities . For example, he outlawed the Muslim Territorial Defence forces in the municipality of Kiseljak.
746. From May 1992 to January 1993, tensions between Croats and Muslims continued to rise. At the same time, General Blaskic reinforced the structure of the HVO armed forces with the agreement of the Croatian political authorities.
747. In January 1993, the Croatian political authorities sent an ultimatum to the Muslims, inter alia, so as to force them to surrender their weapons. They sought to gain control of all the territories considered historically Croatian, in particular the Lasva Valley. Serious incidents then broke out in Busovaca and Muslim houses were destroyed. After being detained, many Muslim civilians were forced to leave the territory of the municipality.
748. Despite the efforts of international organisations, especially the ECMM and UNPROFOR, the atmosphere between the communities remained extremely tense.
749. On 15 April 1993, the Croatian military and political authorities, including the accused, issued a fresh ultimatum. General Blaskic met with the HVO, military police and Vitezovi commanders and gave them orders which the Trial Chamber considers to be genuine attack orders. On 16 April 1993, the Croatian forces, commanded by General Blaskic, attacked in the municipalities of Vitez and Busovaca.
750. The Croatian forces, both the HVO and independent units, plundered and burned to the ground the houses and stables, killed the civilians regardless of age or gender, slaughtered the livestock and destroyed or damaged the mosques. Furthermore , they arrested some civilians and transferred them to detention centres where the living conditions were appalling and forced them to dig trenches, sometimes also using them as hostages or human shields. The accused himself stated that twenty or so villages were attacked according to a pattern which never changed. The village was firstly "sealed off". Artillery fire opened the attack and assault and search forces organised into groups of five to ten soldiers then "cleansed" the village . The same scenario was repeated in the municipality of Kiseljak several days later . The Croatian forces acted in perfect co-ordination. The scale and uniformity of the crimes committed against the Muslim population over such a short period of time has enabled the conclusion that the operation was, beyond all reasonable doubt, planned and that its objective was to make the Muslim population take flight.
751. The attacks were thus widespread, systematic and violent and formed part of a policy to persecute the Muslim populations.
752. To achieve the political objectives to which he subscribed, General Blaskic used all the military forces on which he could rely, whatever the legal nexus subordinating them to him.
753. He issued the orders sometimes employing national discourse and with no concern for their possible consequences. In addition, despite knowing that some of the forces had committed crimes, he redeployed them for other attacks.
754. At no time did he even take the most basic measure which any commander must at least take when he knows that crimes are about to be or have actually been committed . The end result of such an attitude was not only the scale of the crimes, which the Trial Chamber has explained, but also the realisation of the Croatian nationalists’ goals - the forced departure of the majority of the Muslim population in the Las va Valley after the death and wounding of its members, the destruction of its dwellings , the plunder of its property and the cruel and inhuman treatment meted out to many .
V. PRINCIPLES AND PURPOSES OF SENTENCING
755. In imposing the appropriate sentence on the accused, the Trial Chamber is guided by the Statute and the Rules which make reference to the general practice regarding prison sentences in the courts of the former Yugoslavia.
756. The relevant provisions of the Statute are Articles 7, 23 and 24. Article 7 , which deals with individual criminal responsibility, stipulates inter alia that:
2. The official position of any accused, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment.
4. The fact that an accused person acted pursuant to an order of a government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal determines that justice so requires.
Articles 23 and 24 state:
Article 23
Judgement1. The Trial Chambers shall pronounce judgements and impose sentences and penalties on persons convicted of serious violations of international humanitarian law.
2. The judgement shall be rendered by a majority of the judges of the Trial Chamber , and shall be delivered by the Trial Chamber in public. It shall be accompanied by a reasoned opinion in writing, to which separate or dissenting opinions may be appended.
Article 24
Penalties1. 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.
2. Rules of Procedure and Evidence
758. Rule 101 of the Rules, entitled "Penalties", determines the maximum sentence which the Tribunal may pass, that is life imprisonment, and the elements which the Trial Chamber takes into consideration when passing sentence, notably:
the factors mentioned in Article 24, paragraph 2, of the Statute, as well as such factors as […] any aggravating circumstances; […] any mitigating circumstances including the substantial co-operation with the Prosecutor by the convicted person before or after conviction; […] the general practice regarding prison sentences in the courts of the former Yugoslavia […]
3. General practice regarding prison sentences
759. Keeping in mind the foregoing provisions, the Trial Chamber has recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia 1664 . Reference to the practice is only indicative and not binding. Whenever possible, the Tribunal examines the texts and relevant judicial practice of the former Yugoslavia. However, it could not be legally bound by them in determining the sentences and sanctions it imposes for crimes falling under its jurisdiction 1665 .
760. The practice for determining prison sentences in the courts of the former Yugoslavia is based on the provisions of Chapter 16 1666 and Article 41(1) 1667 of the SFRY criminal code. Nonetheless, the Trial Chamber is not limited by the practice of the courts of the former Yugoslavia and it may draw upon other legal sources in order to determine the appropriate sentence.
4. Purposes and objectives of the sentence
761. The determination of a "fair" sentence, that is to say a sentence consonant with the interests of justice, depends on the objectives sought. The Trial Chamber hearing the Celebici case noted four parameters to be taken into account in fixing the length of the sentence: retribution, protection of society, rehabilitation and deterrence. According to the Trial Chamber, deterrence:
is probably the most important factor in the assessment of appropriate sentences for violations of international humanitarian law. Apart from the fact that the accused should be sufficiently deterred by appropriate sentence from ever contemplating taking part in such crimes again, persons in similar situations in the future should similarly be deterred from resorting to such crimes 1668 .
762. As the Trial Chamber hearing the Tadic case recently recalled, pursuant to Security Council resolutions 808 and 827, the Tribunal’s mission is to put to an end serious violations of international humanitarian law and to contribute towards the restoration and maintenance of peace in the former Yugoslavia 1669 . To achieve these objectives, the Trial Chamber must, in accordance with the case -law of the two ad hoc Tribunals, pass a sentence consonant with the above defined objectives 1670 .
763. In addition, as observed in the Erdemovic case:
the International Tribunal sees public reprobation and stigmatisation by the international community, which would thereby express its indignation over heinous crimes and denounce the perpetrators, as one of the essential functions of a prison sentence for a crime against humanity 1671
764. Finally, the Trial Chamber shares the opinion of the Trial Chamber hearing the Furundzija case, that is, such reasoning is not applicable only to crimes against humanity but also to war crimes and other serious violations of international humanitarian law 1672 .
765. The factors taken into account in the various Judgements of the two International Tribunals to assess the sentence must be interpreted in the light of the type of offence committed and the personal circumstances of the accused. This explains why it is appropriate to identify the specific material circumstances directly related to the offence in order to evaluate the gravity thereof and also the specific personal circumstances in order to adapt the sentence imposed to the accused’s character and potential for rehabilitation. Notwithstanding this, in determining the sentence , the weight attributed to each type of circumstance depends on the objective sought by international justice. Keeping in mind the mission of the Tribunal, it is appropriate to attribute a lesser significance to the specific personal circumstances. Although they help to explain why the accused committed the crimes they do not in any event mitigate the seriousness of the offence. Furthermore, these circumstances may aggravate the responsibility of an accused depending on the position he held at the time of the acts and on his authority to prevent the commission of crimes.
766. Tihomir Blaskic was born on 2 November 1960 in the municipality of Kiseljak in Bosnia -Herzegovina. He lived in the town of Bretovsko. His parents were working class and his father died at the front during the conflict. He has a sister and a brother . Tihomir Blaskic has been married since 1987 and is the father of two young boys . His wife looks after their children and Tihomir Blaskic’s brother 1673 . Tihomir Blaskic was trained at the Belgrade Military Academy from 1979-1980 and subsequently promoted at regular intervals, first to the rank of Captain First Class within the former JNA, then to the ranks of Colonel and Chief-of-Staff of the HVO Mostar headquarters within the HVO and lastly to the rank of General assigned to the General Inspectorate within the army of the Republic of Croatia. He is a member of the General Inspectorate of this army. Tihomir Blaskic surrendered to the Tribunal on 1 April 1996. He is presently being detained at the United Nations Detention Unit in Scheveningen, The Hague, The Netherlands.
767. Superior orders and co-operation with the Prosecutor are the only two mitigating circumstances explicitly set forth by the Statute and the Rules 1674 . The Tribunal has full discretion in respect of any other relevant mitigating circumstances .
a) The material mitigating circumstances
768. The fact that the accused did not directly participate may be taken as a mitigating circumstance when the accused holds a junior position within the civilian or military command structure. However, the Trial Chamber considers that the fact that commanders , such as Tihomir Blaskic at the time of the crimes, played no direct part cannot act in mitigation of the sentence when found guilty.
769. Duress, where established, does mitigate the criminal responsibility of the accused when he had no choice or moral freedom in committing the crime. This must consequently entail the passing of a lighter sentence if he cannot be completely exonerated of responsibility. The Trial Chamber points out that over the period covered by the present indictment Tihomir Blaskic did not act under duress whilst in his post. Accordingly, he does not enjoy any mitigating circumstances.
770. It appears that, independently of duress, the context in which the crimes were committed , namely the conflict, is usually taken into consideration in determining the sentence to be imposed. Such was the case in the Tadic1675, Celebici1676 and Aleksovski1677 cases. Though mentioned in these cases, this factor does not seem to have been decisive in fixing the sentence. Nonetheless, the Trial Chamber brings out the explanations given by Tihomir Blaskic whilst testifying to the disorganisation of the armed forces due, essentially, to the lack of experienced troops and the want of proper training and suitable materiel. It also observes the crimes allegedly committed by the other party and the difficulty of controlling the spontaneous reactions of some Croats . Nonetheless, even were they verified, these allegations are still not such as to constitute an excuse for a commander such as Tihomir Blaskic - a fortiori once it has been established as in this instance that the accused acted in accordance with a discriminatory policy which he deliberately implemented. The Trial Chamber finds the accused guilty of crimes against humanity and thereby excludes the possibility of disorder ensuing from an armed conflict constituting a mitigating circumstance .
b) Personal mitigating circumstances
771. Article 24(2) of the Statute allows the personal status of the accused to be taken into account in determining the sentence. Thus, where the elements effectively contribute to the determination of the sentence, the sanction must fit the crime’s perpetrator and not merely the crime itself 1678 in accordance with the requirement of individualisation. As a human being, the accused has a conscience, a personal history and a character which may explain the process which led to the accused committing the crimes whose seriousness justifies his being tried before the Tribunal.
772. The Trial Chamber notes that the mental state of the accused was not invoked in this case 1679 .
773. The accused’s conduct after committing the crimes says much about his personality insofar as it reveals both how aware the accused was of having committed crimes and, to some extent, his intention to "make amends" by facilitating the task of the Tribunal 1680 . Such conduct includes co-operation with the Prosecutor, remorse, voluntary surrender and pleading guilty .
774. Co-operation with the Prosecutor is the only circumstance explicitly provided for within the terms of the Rules 1681 . By this simple fact, it takes on a special importance. The earnestness and degree of co-operation with the Prosecutor decides whether there is reason to reduce the sentence on this ground. Therefore, the evaluation of the accused’s co-operation depends both on the quantity and quality of the information he provides 1682 . Moreover, the Trial Chamber singles out for mention the spontaneity and selflessness of the co-operation which must be lent without asking for something in return 1683 . Providing that the co-operation lent respects the aforesaid requirements 1684 , the Trial Chamber classes such co-operation as a "significant mitigating factor" 1685 . The Trial Chambers have, on several occasions, ruled that failure to co-operate constitutes an aggravating circumstance. Here, the Trial Chamber notes that the accused has not co-operated with the Office of the Prosecutor.
775. Remorse was taken into account as a mitigating circumstance in the Erdemovic1686, Akayesu1687and Serushago cases 1688 . The Trial Chamber hearing the Kambanda case noted that the accused did not express any regrets even when the Trial Chamber presented him with the opportunity to do so 1689 . However the remorse expressed by the accused must be established as being real and sincere. Consequently, the Trial Chamber in the Jelisic case indicated that it was not satisfied that the remorse expressed by the accused was sincere 1690 . In this instance, the Trial Chamber notes that the feeling of remorse must be analysed in the light of not only the accused’s statements but also of his behaviour (voluntary surrender, guilty plea). The Trial Chamber points out that, from the very first day of his testimony, Tihomir Blaskic expressed profound regret and avowed that he had done his best to improve the situation although this proved insufficient 1691 . The Trial Chamber observes that there is a flagrant contradiction between this attitude and the facts it has established - having given orders resulting in the commission of crimes the accused cannot claim that he attempted to limit their consequences . His remorse thus seems dubious.
776. Voluntary surrender is deemed a significant mitigating circumstance in determining the sentence. The factor has been analysed in three cases to date. In the Erdemovic case, it was deemed to indicate that the remorse expressed by the accused was sincere and thus a ground for reducing the sentence. However, it was selected as a self-contained mitigating circumstance in the Serushago case 1692 . More recently, the Trial Chamber in the Kupreskic case indicated that the voluntary surrender of accused constituted a factor operating in mitigation of the sentence 1693 . In the present case , even though his name appeared in an indictment alongside those of five other co -accused, Tihomir Blaskic voluntarily surrendered himself on 1 April 1996, that is approximately a year before the arrest of one of the other co-accused and eighteen months before another of the co-accused was handed over. However, as he himself stated during the hearings, he only surrendered himself once he had very carefully prepared his defence, to the point that he could retrace his movements down to the very minute even at the most critical moments of the conflict. The accused declared that he made preparations using documents which were no longer in his possession and which the Trial Chamber was unable to obtain.
777. A guilty plea, where entered, may in itself constitute a factor substantially mitigating the sentence. In this case, Tihomir Blaskic did not plead guilty. Although the Trial Chamber understands that the accused would contest the ascribability of the crimes , it does not however accept the fact that he took so much time to acknowledge that the crimes did indeed take place, particularly in Ahmici, crimes which the accused himself had ascribed to the Muslims or Serbs 1694 , before stating at trial that they had been perpetrated, more specifically, by the Military Police 1695 .
778. The case-law of the two ad hoc criminal Tribunals on rehabilitation takes the young age of the accused into account as a mitigating circumstance. The assessment of youth varies – whilst the ICTY considers accused aged between 19 and 23 at the time of the facts as being young 1696 , the ICTR selects ages from 32 to 37 1697 . In the present case, the Trial Chamber notes that Tihomir Blaskic, now 39 years old, was 32 at the time of the facts. It points out that this is not an unusually young age for a operative zone commander in time of armed conflict. However it must be stated that the accused was given considerable responsibilities, notably in organising the army and the conduct of military operations at a particularly critical period . Although he was a professional officer, the Trial Chamber considers that his age is to some degree a mitigating circumstance.
779. Finally, the Trial Chambers have often found it appropriate to review the accused’s personal history - socially, professionally and within his family. It is essential to review these factors because they may bring to light the reasons for the accused’s criminal conduct.
780. The character traits are not so much examined in order to understand the reasons for the crime but more to assess the possibility of rehabilitating the accused. The Judgement rendered in the Erdemovic case states that the accused can be reformed and that he represents no danger 1698 . High moral standards are also indicative of the accused’s character 1699 . Thus, the Trial Chamber bears in mind not only the fact that Tihomir Blaskic does not have a criminal record but also his keen sense for the soldiering profession which he considers a duty. In this respect, the Trial Chamber must take note of the exemplary behaviour of the accused throughout the trial, whatever the judgement as to his statements as a witness. The accused also appeared particularly at ease as regards the military aspect. It is appropriate to note that several witnesses attested to the professionalism of the accused and his organisational skills. He is a man of duty. He is also a man of authority who barely tolerated non-compliance with his orders. He is a man of conviction and his commitment to the Croatian cause is undoubted.
781. Another indication that the accused’s character is reformable is evident in his lending assistance to some of the victims 1700 . In this regard, the Trial Chamber notes that Tihomir Blaskic allegedly maintained , here and there, good relations with the Muslims throughout the conflict. Accordingly , he supposedly participated in Muslim festivals, stayed in touch with the family of a Muslim friend and protected a Muslim woman whose husband was threatened 1701 . Notwithstanding this, the Trial Chamber observes that these good relations were sporadic and above all on an individual basis. These factors are all the less decisive when one notes that criminals frequently show compassion for some of their victims even when perpetrating the most heinous of crimes.
782. Nevertheless, in a case as serious as this and also insofar as many accused share these personal factors, the Trial Chamber must find that their weight is limited or even non-existent when determining the sentence 1702 .
783. The fact that the crime was as egregious as it was is a qualitative criterion which can be gleaned from its particularly cruel or humiliating nature. The Trial Chambers have pointed out, in this regard, the extreme cruelty of the beatings 1703 , the sadism with which they were inflicted and the especial humiliation which ensued . The cruelty of the attack is clearly a significant consideration when determining the proper sentence. In this case, the heinousness of the crimes is established by the sheer scale and planning of the crimes committed which resulted in suffering being intentionally inflicted upon the Muslim victims regardless of age, sex or status. In this respect, the Trial Chamber wishes to bring out the particularly heinous nature of the crimes at Ahmici where, during a carefully prepared attack , many Muslim children, women and adults were systematically murdered and sometimes burnt alive in their homes, the houses plundered and set alight and the mosques and religious buildings destroyed. Such facts constitute a decisive aggravating circumstance.
784. The number of victims has been raised on several occasions as an aggravating circumstance and reflects the scale of the crime committed 1704 . By noting that the crimes were committed systematically, the Trial Chambers also took into account as aggravating circumstances the recurrence of the crimes 1705 . The number of victims must also be considered in relation to the length of time over which the crimes were perpetrated 1706 . In this case, the Trial Chamber not only points to the high number of victims but also the violence of the crimes and the fact that they were repeated, discriminatory and systematic. The Trial Chamber recalls that a very large number of Muslim civilians had their homes forcibly taken away from them. This excludes the very large number of victims who had to take flight. The brutal murder of Muslim civilians in Ahmi ci over a brief time-span is a blatant illustration.
785. The motive of the crime may also constitute an aggravating circumstance when it is particularly flagrant. Case-law has borne in mind the following motives: ethnic and religious persecution 1707 , desire for revenge 1708 and sadism 1709 . Resultantly, the Trial Chamber considers that it is essential to review the motives of the crimes violating international humanitarian law imputed to the accused 1710 . Here, the Trial Chamber takes note of the ethnic and religious discrimination which the victims suffered. In consequence, the violations are to be analysed as persecution which, in itself, justifies a more severe penalty.
786. The status of the victims may be taken into account as an aggravating circumstance . Judgements have indicated that the victims were civilians and/or women 1711 . This Trial Chamber notes that in this case many crimes targeted the general civilian population and within that population the women and children. These acts constitute an aggravating circumstance 1712 .
787. The physical and mental effects of the bodily harm meted out to the victims were also seen as aggravating circumstances 1713 . The criterion is thus characterised by its subjectiveness. In the Tadic, Celebi ci and Furundzija cases, the Trial Chambers observed that the offences had been committed in circumstances which could only aggravate the crimes and the victims’ suffering 1714 . Those cases where bodily injury led to death have also been noted 1715 . Consequently, victims’ suffering is one factor to be taken into account when determining the sentence. The Trial Chamber here points not only to the suffering inflicted upon the victims while the crimes were being committed through the use of indiscriminate , disproportionate and terrifying combat means and methods, such as "baby bombs", flame-throwers, grenades and a booby-trapped lorry, but also the manifest physical and mental suffering endured by the survivors of these brutal events. Thus, along with the physical or emotional scars borne by the victims, their suffering at the loss of loved ones and the fact that most of them are still unable to return to their homes to this day must also be mentioned.
b) The degree of the accused’s responsibility
788. In the case-law of the two Tribunals, there can be no doubt that command position may justify a harsher sentence, which must be that much harsher because the accused held a high position within the civilian or military command structure 1716 . In this instance, actual authority exercised seems more decisive than command authority alone 1717 . The Judgements of the ICTR on the issue are of particular importance in view of the high level of command authority held by some of the accused 1718 . The Trial Chambers observed that the case-law of the Tribunal classifies command position as an aggravating circumstance 1719 . In the Judgement rendered in the Celebici case, the Trial Chamber nevertheless noted that command position does not necessarily entail a harsher sentence and that the accused may enjoy mitigating circumstances if he had only "constructive knowledge " of the crimes 1720 . However the Trial Chamber stated that:
it would constitute a travesty of justice, and an abuse of the concept of command authority, to allow the calculated dereliction of an essential duty to operate as a factor in mitigation of criminal responsibility 1721 .
789. Therefore, when a commander fails in his duty to prevent the crime or to punish the perpetrator thereof he should receive a heavier sentence than the subordinates who committed the crime insofar as the failing conveys some tolerance or even approval on the part of the commander towards the commission of crimes by his subordinates and thus contributes to encouraging the commission of new crimes. It would not in fact be consistent to punish a simple perpetrator with a sentence equal or greater to that of the commander. From this viewpoint, the Trial Chamber recalls that in the Tadic case the Appeals Chamber found that a prison sentence above twenty years would be excessive given the relatively low rank of Dusko Tadic within the command structure. 1722 Command position must therefore systematically increase the sentence or at least lead the Trial Chamber to give less weight to the mitigating circumstances, independently of the issue of the form of participation in the crime. The Trial Chamber observes that as commander of the Central Bosnia Operative Zone at the time of the facts, Tihomir Blaskic held a senior command position. As indicated above, the Trial Chamber is of the opinion that the accused had more than a constructive knowledge of the crimes. It is satisfied beyond all reasonable doubt that General Blaskic ordered attacks which targeted the Muslim civilian population and thereby incurred responsibility for crimes committed during these attacks or at least made himself an accomplice thereto and, as regards those crimes not ensuing from such orders, he failed in his duty to prevent them and did not take the necessary measures to punish their perpetrators after they had been committed.
790. Active and direct participation in the crime means that the accused committed by his own hand all or some of the crimes with which he is charged. Direct participation in the crime is accordingly an aggravating circumstance which will more often than not be held against the actual perpetrators rather than against the commanders 1723 . The relevant precedents set down by the Judgements delivered in the Tadic and Furundzija1724 cases are quite significant. In the case in hand, the Trial Chamber points out that Tihomir Blaskic did not take a direct and active part in the crimes. Nonetheless, at the time of the facts, the accused held a command position which made him responsible for the acts of his subordinates. Accordingly, although the fact that he did not take a direct and active part does not constitute an aggravating circumstance in itself, it can in no way counterbalance the aggravation arising from the accused’s command position 1725 .
791. Therefore, it can be concluded that command position is more of an aggravating circumstance than direct participation. This holds true insofar as, although direct participation by the commander does constitute an aggravating circumstance, the fact that he does not participate directly may not conversely justify a reduction in the sentence
792. Informed and voluntary participation means that the accused participated in the crimes fully aware of the facts. It was specified as an aggravating circumstance in the Tadic 1726case and in all the Judgements rendered by the ICTR 1727 . The importance of this factor varies in case-law depending on the degree of enthusiasm with which the accused participated. Informed participation is consequently a less aggravating circumstance than willing participation. Not only does the accused’s awareness of the criminality of his acts and their consequences and of the criminal behaviour of his subordinates count but also his willingness and intent to commit them. Once such intent is established, it is likely to justify an additional aggravation of the sentence. In the case in hand, the Trial Chamber brings out the informed and voluntary participation of Tihomir Blaskic in the crimes ascribed to him. As a professional soldier who, as he himself explained, took a course on the law of armed conflicts while in the former JNA, the accused knew perfectly well the range of his obligations. It is inconceivable that Tihomir Blaskic was unable to assess the criminal consequences stemming from the violations of such obligations.
793. The premeditation of an accused in a crime tends to aggravate his degree of responsibility in its perpetration and subsequently increases his sentence. Premeditation is a classic aggravating circumstance in national legal practice. For this reason, it was taken into account by the ICTY and ICTR in the Tadic, Celebici, Kambanda and Serushago cases. The Trial Chamber here holds that, insofar as the accused has been found guilty of crimes against humanity, these circumstances may not be taken into account.
794. Under Sub-rule 101(D) of the Rules, any person found guilty is entitled to "the period which SheC was detained in custody pending surrender to the Tribunal or pending trial or appeal" being deducted from the sentence. Consequently, in calculating the sentence, the fact that the accused has been detained by the Tribunal since 1 April 1996, that is three years, eleven months and two days as of the day of this Judgement, must be considered.
795. Neither the Statute nor the Rules lays down expressly a scale of sentences applicable to the crimes falling under the jurisdiction of the Tribunal. Article 24(2) of the Statute draws no distinction between crimes when determining the sentence. The Trial Chamber passes only prison sentences, the maximum being life imprisonment pursuant to Sub-rule 101(A) of the Rules.
796. However, the principle of proportionality, a general principle of criminal law, and Article 24(2) of the Statute call on the Trial Chamber to bear in mind the seriousness of the offence and could consequently constitute the legal basis for a scale of sentences. The first question which arises therefrom concerns the existence of a scale of seriousness of the crimes over which the Tribunal has jurisdiction. The question of transposing this scale when determining the sentence only comes up later .
a) Legal bases and consequences of an objective ranking of the crimes
797. To date, the issue of the legal basis for ranking the crimes does not appear to have been the focus of many discussions 1728 . In the Erdemovic case, the Appeals Chamber outlined the principle of a scale of seriousness of the crimes although the legal arguments put forward in support of the said principle were not unanimously agreed upon. In their separate opinion , Judges McDonald and Vohrah advanced two arguments for a scale of seriousness of the crimes. First, they indicated a natural distinction between crimes against humanity and war crimes in order to justify the intrinsically more serious nature of the crimes against humanity 1729 . In their respective separate opinions in the Erdemovic and Tadic cases 1730 , Judge Li and Judge Robinson signalled their disagreement on the matter noting that a crime against humanity is not a crime against the whole of mankind but a crime against "humaneness, i.e . a certain quality of behaviour". The Trial Chamber however observes that although the two meanings of the word "humanity" are allowable, the second in no way acts in mitigation of the seriousness per se of a crime against humanity which retains a different nature from a war crime.
798. Secondly, the fact that a crime against humanity is distinguishable from a war crime by its ingredients is raised – crimes against humanity are not isolated acts committed at random but rather acts which, as their perpetrator is aware, have much more serious consequences because of their additional contribution to a widespread pattern of violence 1731 . However, a crime against humanity must not necessarily be considered more serious than a war crime 1732 . The comparison must be made between two similar underlying crimes 1733 .
799. Accordingly, an outline of the hierarchy of crimes emerges from the case-law of the two ad hoc Tribunals but its legal value does not seem to have been established at the present time 1734 .
b) The principles set by the case-law of the two Tribunals
800. A hierarchy of crimes seems to emerge from the case-law of the ICTR. The Trial Chamber seised of the Kambanda case 1735 established a complete scale of seriousness of the crimes which was taken up in the subsequent Judgements of the ICTR 1736 . The following hierarchy of crimes falling under the jurisdiction of the Tribunal may therefore be compiled:
1) "The crime of crimes": genocide 1737
2) Crimes of an extreme seriousness: crimes against humanity
3) Crimes of a lesser seriousness: war crimes 1738
The ICTR has thus supposedly established a genuine hierarchy of crimes and this has been used in determining sentences as witnessed by the fact that the crime of genocide was punished by life imprisonment 1739 .
801. The ICTY has not yet transposed this hierarchy of crimes to the sentencing phase. Until now only the Tadic case has the distinctive feature whereby the accused has been found guilty of crimes against humanity and war crimes for the same acts and was sentenced separately for each characterisation specified . In view of this, it should also be noted that the sentences imposed for crimes against humanity were systematically one year longer than those for war crimes. Even in the Erdemovic case, the Appeals Chamber did not clearly use the hierarchy of offences, as established in the Judgement, in order to determine the corresponding applicable sentence 1740 . Recently in the Tadic case, the Appeals Chamber noted that in determining the sentence there is no distinction in law between the seriousness of a crime against humanity and that of a war crime 1741 . In setting the sentence, the Chamber indicated:
[t]he authorized penalties are also the same, the level in any particular case being fixed by reference to the circumstances of the case 1742 .
802. Ultimately, it appears that the case-law of the Tribunal is not fixed. The Trial Chamber will therefore confine itself to assessing seriousness based on the circumstances of the case.
803. The objective method for assessing the seriousness of a crime is linked to the intrinsic seriousness of the crime’s legal characterisation. It is not the seriousness of the crime committed in the case in point which is borne in mind but the seriousness of the characterisation specified. The subjective method for assessing the seriousness relates to the seriousness in personam of the crime 1743 .
804. In addition to the seriousness per se of the crime, it is also appropriate to take into account its seriousness in personam 1744. Although the subjective seriousness is not taken into account in the scale of seriousness of the crimes, it is a factor in the second phase of determining the sentence and thereby ensures that the circumstances of the case may be duly taken into account in setting the sentence. It is not contrary to the principle of individualisation of the sentence to rely on a scale of seriousness of the crimes. The scale of sentences will follow from the relationship between and the evaluation of the objective seriousness , if relevant, and the subjective seriousness of the crimes. It is understood that the weight of the second factor, that is the subjective seriousness, should not, other than in exceptional circumstances, cancel out the first factor, that is the objective seriousness. Furthermore and where necessary, the imposition of a minimum sentence to be served would give some scope for the sentence to be fine-tuned 1745 . However, the Trial Chamber notes that this notion is not universally accepted in the various legal systems.
805. The Trial Chamber is of the view that the provisions of Rule 101 of the Rules do not preclude the passing of a single sentence for several crimes. In this regard , the Trial Chamber takes note that although until now the ICTY Trial Chambers have rendered Judgements imposing multiple sentences, Trial Chamber I of the ICTR imposed single sentences in the Kambanda 1746 and Serushago 1747 cases.
806. Moreover, the Trial Chamber recalls that in the cases brought before the military Tribunals at Nuremberg and Tokyo, a single sentence was passed even for multiple crimes.
807. Here, the crimes ascribed to the accused have been characterised in several distinct ways but form part of a single set of crimes committed in a given geographic region during a relatively extended time-span, the very length of which served to ground their characterisation as a crime against humanity, without its being possible to distinguish criminal intent from motive. The Trial Chamber further observes that crimes other than the crime of persecution brought against the accused rest fully on the same facts as those specified under the other crimes for which the accused is being prosecuted. In other words, it is impossible to identify which acts would relate to which of the various counts - other than those supporting the prosecution for and conviction of persecution under count 1 which, moreover, covers a longer period of time than any of the other counts. In light of this overall consistency , the Trial Chamber finds that there is reason to impose a single sentence for all the crimes of which the accused has been found guilty.
808. In conclusion, the Trial Chamber holds that in this case, the aggravating circumstances unarguably outweigh the mitigating circumstances and that the sentence pronounced accurately reflects the degree of seriousness of the crimes perpetrated and the faults of the accused given his character, the violence done to the victims, the circumstances at the time and the need to provide a punishment commensurate with the serious violations of international humanitarian law which the Tribunal was set up to punish according to the accused’s level of responsibility.
FOR THE FOREGOING REASONS, THE TRIAL CHAMBER, in a unanimous ruling of its members,
FINDS Tihomir Blaskic GUILTY:
of having ordered a crime against humanity, namely persecutions against the Muslim civilians of Bosnia, in the municipalities of Vitez, Busovaca and Kiseljak and, in particular, in the towns and villages of Ahmici, Nadioci, Pirici, Santici, Oc ehnici, Vitez, Stari Vitez, Donja Veceriska, Gacice, Loncari, Grbavica, Behrici, Kazagici, Svinjarevo, Gomionica, Gromiljak, Polje Visnjica, Visnjica, Rotilj, Hercezi , Tulica and Han Ploca/Grahovci between 1 May 1992 and 31 January 1994 (count 1) for the following acts:
- attacks on towns and villages;
- murder and serious bodily injury;
- the destruction and plunder of property and, in particular, of institutions dedicated to religion or education;
- inhuman or cruel treatment of civilians and, in particular, their being taken hostage and used as human shields;
- the forcible transfer of civilians;
and by these same acts, in particular, as regards an international armed conflict , General Blaskic committed:
- a violation of the laws or customs of war under Article 3 of the Statute and recognised by Article 51(2) of Additional Protocol I: unlawful attacks on civilians (count 3);
- a violation of the laws or customs of war under Article 3 of the Statute and recognised by Article 52(1) of Additional Protocol I: unlawful attacks on civilian objects (count 4);
- a grave breach, under Article 2(a) of the Statute: wilful killing (count 5);
- a violation of the laws or customs of war under Article 3 and recognised by Article 3(1)(a) of the Geneva Conventions: murder (count 6);
- a crime against humanity, under Article 5(a) of the Statute: murder (count 7);
- a grave breach under Article 2(c) of the Statute: wilfully causing great suffering or serious injury to body or health (count 8);
- a violation of the laws or customs of war under Article 3 and recognised by Article 3(1)(a) of the Geneva Conventions: violence to life and person (count 9);
- a crime against humanity under Article 5(i) of the Statute: inhumane acts (count 10);
- a grave breach under Article 2(d) of the Statute: extensive destruction of property (count 11);
- a violation of the laws or customs of war under Article 3(b) of the Statute: devastation not justified by military necessity (count 12);
- a violation of the laws or customs of war under Article 3(e) of the Statute: plunder of public or private property (count 13);
- a violation of the laws or customs of war under Article 3(d) of the Statute: destruction or wilful damage done to institutions dedicated to religion or education (count 14);
- a grave breach under Article 2(b) of the Statute: inhuman treatment (count 15);
- a violation of the laws or customs of war under Article 3 of the Statute and recognised by Article 3(1)(a) of the Geneva Conventions: cruel treatment (count 16);
- a grave breach under Article 2(h) of the Statute: taking civilians as hostages ( count 17);
- a violation of the laws or customs of war under Article 3 of the Statute and recognised by Article 3(1)(b) of the Geneva Conventions: taking of hostages (count 18);
- a grave breach, under Article 2(b) of the Statute: inhuman treatment (count 19);
- a violation of the laws or customs of war under Article 3 of the Statute and recognised by Article 3(1)(a) of the Geneva Conventions: cruel treatment (count 20),
In any event, as a commander, he failed to take the necessary and reasonable measures which would have allowed these crimes to be prevented or the perpetrators thereof to be punished, and
NOT GUILTY of counts 3 and 4 in relation to the shelling of the town of Zenica,
and therefore,
SENTENCES Tihomir Blaskic to forty-five years in prison;
STATES that the length of time he has been detained for the Tribunal, that is the period from 1 April 1996 until the date of this Judgement, shall be deducted from the overall length of the sentence.
Done in French and English, the French version being authoritative.
Done this third day of March
At The Hague
The Netherlands.
/signed/
Claude Jorda
President of the Trial Chamber
/signed/
Mohamed Shahabuddeen
/signed/
Almiro Rodrigues
[Seal of the Tribunal]
Judge Shahabuddeen appends a declaration to this Judgement.