1 Friday, 14 January, 2000

2 [Oral Argument]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 10.38 a.m.

6 JUDGE SHAHABUDDEEN: Mr. Registrar, will you

7 please call the case next on the list.

8 THE REGISTRAR: Case number IT-94-1-A and

9 94-1-A bis, the Prosecutor versus Dusko Tadic.

10 JUDGE SHAHABUDDEEN: Mr. Tadic, you're in

11 communication with us? You're hearing me?

12 THE ACCUSED: Yes.

13 JUDGE SHAHABUDDEEN: May we take the

14 appearances. Mr. Clegg, this is your appeal?

15 MR. CLEGG: It is, Your Honour. I appear

16 with Mr. Livingston for the --

17 THE INTERPRETER: Microphone, please.

18 MR. CLEGG: A technological failure. I

19 appear with Mr. Livingston for the appellant, Dusko

20 Tadic.

21 MR. YAPA: May it please Your Honours.

22 Upawansa Yapa. I appear for the Prosecution with

23 Mr. Michael Keegan.

24 JUDGE SHAHABUDDEEN: Now, the Appeals Chamber

25 is hearing the appeal brought by Mr. Tadic. The appeal

1 arises out of a judgement issued by the Chamber on

2 15 July last year. In that judgement, the Appeals

3 Chamber found the appellant guilty on certain counts on

4 which he had been previously acquitted. The Chamber

5 said, I think with the consent of both sides, that

6 sentencing on those counts would be left for a further

7 procedure.

8 Eventually, after certain steps had been

9 taken, with the consent of both sides, the Appeals

10 Chamber referred the matter for sentencing by a Trial

11 Chamber. That Trial Chamber imposed sentences on the

12 11th of November. Mr. Tadic now appeals from the

13 sentences imposed. Mr. Clegg is appearing for him.

14 I would just seize the convenience of the

15 moment to itemise what I believe are the principal

16 grounds of appeal to be argued by Mr. Clegg.

17 Telegraphically, the first ground has to do

18 with excessive weight being placed by the Trial Chamber

19 on deterrence as a factor. The second ground has to do

20 with the alleged need to develop a sentencing tariff.

21 The third ground has to do with the question whether

22 Mr. Tadic had made a substantial cooperation with the

23 Prosecution. The fourth ground has to do with the

24 question whether a crime against humanity was

25 intrinsically more serious in law than a war crime.

1 The fifth ground of appeal has to do with the

2 sentencing practice of the former Yugoslavia.

3 Mr. Clegg, have I referred, with the kind of

4 brevity which I foreshadowed, the main grounds of

5 appeal?

6 MR. CLEGG: Your Honour has.

7 JUDGE SHAHABUDDEEN: Then would it be

8 convenient if we were to stick to that serialisation of

9 the grounds?

10 MR. CLEGG: It would, but if I could take

11 them in a slightly different order.

12 JUDGE SHAHABUDDEEN: Please yourself. By all

13 means. Now, the next thing to do under our procedures

14 today, I understand there have been conversations and

15 that in the result the appellant, that's you,

16 Mr. Clegg, would be speaking for 45 minutes. That is

17 your time slot.

18 MR. CLEGG: No longer.

19 JUDGE SHAHABUDDEEN: No longer. How much

20 time would you require?

21 MR. CLEGG: Well, if I say 45 minutes, I

22 shall take all the credit that is due to me if I finish

23 before.

24 JUDGE SHAHABUDDEEN: Very good. Then we look

25 forward precisely to your doing that.

1 Then the Prosecutor would take how long?

2 MR. KEEGAN: Certainly less than half an

3 hour, Your Honour.

4 JUDGE SHAHABUDDEEN: Very good.

5 Then, Mr. Clegg, you would wish to reply.

6 MR. CLEGG: I would, but I don't anticipate

7 it would be for more than 10 minutes.

8 JUDGE SHAHABUDDEEN: Yes. That errs on the

9 right side of law, because I have you down for 15

10 minutes.

11 So, Mr. Clegg, would it be convenient for you

12 to take the floor at this time?

13 MR. CLEGG: It would. I sense that I'm in

14 front of a Tribunal where brevity will never be

15 criticised.

16 The first matter that I would like to

17 re-emphasise to the Court is that obviously what is now

18 effectively a combined appeal, we rely obviously upon

19 the written and oral submissions that were made so far

20 as the appellant's personal circumstances were

21 concerned, the issue as to whether time should be

22 allowed for the period he spent in custody back in

23 Germany and the submissions to be made in relation to

24 the minimum period and other general mitigating factors

25 that were aired when the matter first came before this

1 Trial Chamber. I have no intention, obviously, of

2 repeating those submissions, but I formally adopt them

3 for this hearing.

4 I would like to turn first, if I may, to the

5 question of the desirability of setting out appropriate

6 tariff of sentencing in this Tribunal, and I begin by

7 regretting slightly that I ever used the word "tariff"

8 when I first raised this matter many, many months ago.

9 A better word might have been a "range of sentence,"

10 because the word "tariff" does tend to carry with it

11 the implication of a rigid format of sentencing, within

12 narrow brackets. That was never my intention to

13 advance to this Appeals Chamber, the sort of tariff

14 that one finds in the federal courts of the United

15 States of America. That was never my intention.

16 What I intended to submit was that there

17 ought to be a sensible range of sentences passed by the

18 respective Trial Chambers of the International

19 Tribunal, whereby the sentencing, when looked at from

20 one case to another, across the board, gives a broad

21 consistency of approach.

22 It's my basic submission that consistency is

23 consistent with justice and inconsistency breeds a

24 genuine sense of grievance on the part of defendants.

25 It is perhaps very appropriate that today

1 that the judgement was given with two of the Appeals

2 Chamber sitting in the case of Kupreskic. It's my

3 submission that the Trial Chamber in that case

4 perfectly illustrated the desirability of having a

5 range of sentences reflecting the different culpability

6 of individuals who were all charged with what was

7 described in the judgement as being one of the most

8 vicious illustrations of man's inhumanity to man; a

9 description that tragically can be applied to many

10 instances of criminal conduct in the former Yugoslavia

11 over the periods of the conflict.

12 But despite the gravity of the crimes

13 committed in that case, one can see, when one looks,

14 albeit only briefly, as I've only had the opportunity

15 to see it since 9.30 this morning, but when one looks

16 at the respective roles of the people who were

17 convicted before the Trial Chamber in that case, one

18 can see how that is reflected in the ultimate sentences

19 passed by the Court.

20 It's our submission that if you were to

21 compare the role, the seniority, and the crimes of

22 which Dusko Tadic stands convicted today against those

23 that were found in that case, one would see that there

24 was a real substantial disparity.

25 The disparity is most marked when one looks

1 at the position that Tadic held. No one suggests for

2 one moment that he ever had any position of power or

3 influence. He had no position of command. He was not

4 giving orders to others. He was, tragically, in the

5 same position as hundreds, if not thousands of other

6 men in that area of Europe caught up in this conflict,

7 influenced and overtaken by the propaganda to which he

8 had been subjected, and embarking upon a series of

9 criminal acts that, had he not been in the position

10 that he was and subject to the influences that he was,

11 he would never have committed at all.

12 One of the ironies of sentencing in a war

13 crimes tribunal is that one is almost invariably

14 sentencing people who, had they not been caught up with

15 conflict, would have lived their lives without

16 committing any crime at all, and that is also a factor

17 when one turns to consider the value of deterrence.

18 But our primary submission is that the

19 position that Tadic held, his role, his responsibility,

20 his position in the hierarchy, cannot justify a

21 sentence of the length that he now faces, and when

22 compared with the sentences passed earlier today, one

23 can, in our submission, detect a real and serious

24 disparity.

25 The importance is that to have any sense of

1 justice, the sentencing powers of this Tribunal must be

2 exercised equitably, not only between individual people

3 in different cases but against the background of the

4 whole conflict, and it is in this way that the

5 authorities from Nuremberg, after the Second World War,

6 are important. They're important because they are the

7 only yardstick that this Appeals Chamber has to the

8 approach of sentencing in an international forum

9 following a war.

10 The one message that emerges from the

11 Nuremberg sentencing is that those who had positions of

12 power and influence received the highest sentences and

13 that the lower down the hierarchy one came, the lower

14 the sentence became. I won't take the Court through

15 all the cases we have cited in our written submissions,

16 but I know the Court has seen them, has read them, and

17 will reflect on them.

18 But if one considers that in Nuremberg we

19 were considering crimes against humanity that involved

20 participation in the Holocaust, perhaps the most evil

21 crime ever embarked upon by one nation against another

22 race. When we look at the sentences that were passed

23 there, we see that sentences of 25 years would equate

24 to people who had a senior rank in the government or

25 the army. There was, in fact, nobody tried in

1 Nuremberg of an equivalent rank to Dusko Tadic.

2 It's our submission that he had the

3 distinction, of course, of being the first person ever

4 to be tried before the Trial Chamber here in The Hague,

5 and therefore the Trial Chamber did not have the

6 advantage that this Appeals Chamber has today to look

7 at other cases, including the case of Kupreskic decided

8 this morning, in order to try to assess his culpability

9 against that of other people before this Tribunal. But

10 we submit that he has had the sentence pitched far too

11 high to begin with.

12 If we reflect for one moment, if one were to

13 countenance against people who were, in effect, the

14 foot soldiers and who had no command responsibility

15 sentences of 25 years and then seek, in one's mind, to

16 aggregate that sentence up, what, I ask rhetorically,

17 would be the appropriate sentence of somebody who had

18 junior command, local command, national command, and

19 overall strategic command of the war. When one

20 reflects on that, we submit that there is force in the

21 submission that proper and due consideration to an

22 appropriate range of sentence has not been given here.

23 We invite the Appeals Chamber, with respect,

24 to reflect on that. We urge them, those who were not

25 involved in the trial of Kupreskic, to look at that

1 case and to ask oneself rhetorically, if we could pick

2 up the facts of this and put it into that case, what

3 sentence would be passed for somebody with the position

4 and involvement of Dusko Tadic.

5 I remind the Court that in Kupreskic, the

6 crimes there were compared to the very worst death

7 camps in Nazi Germany of Dachau and others, and also

8 the tragedies in Soweto and My Lai.

9 So that is our first simple, short but

10 fundamental submission that a proper application of the

11 range of sentence has not been applied in this case,

12 and understandably so because he was the first ever to

13 be convicted.

14 The matter can be put, perhaps, in just one

15 phrase: We say that there should be comparative

16 culpability and comparative -- comparison, sorry,

17 between the sentences passed in different Trial

18 Chambers.

19 Moving now to the slightly discrete area of

20 whether deterrence is a legitimate part of the approach

21 of the Trial Chamber in sentencing in cases such as

22 this, we would urge the Court to conclude that

23 deterrence so far as people at this level cannot

24 sensibly be assumed to be effective. It is possible

25 that those in command may be deterred by the thought

1 that they will ultimately be brought to justice. But I

2 do ask rhetorically whether it is sensible to envisage

3 that the foot soldiers are capable of being deterred by

4 anything that happens in this Court. I say that, of

5 course, with due deference to the Court, but I reflect

6 for a moment, does anyone believe that had there been a

7 series of trials after the First World War that the

8 camp guards at Dachau or the SS officers in the

9 einzatgruppen would be deterred by that in the Second

10 World War? Is it to be seriously imagined that those

11 involved in the awful massacres in Rwanda would have

12 been deterred by doing so had this Court been able to

13 act more speedily in seeking to bring to justice those

14 involved in these crimes in the area of former

15 Yugoslavia.

16 I venture to suggest that deterrence has a

17 very limited role in sentencing in a domestic criminal

18 jurisdiction. If one looks at all the comparative

19 studies that are done, it by no means indicates that

20 deterrence has any effect in a local criminal

21 jurisdiction. If one looks at Europe, the countries

22 that have the highest crime rate have the highest

23 sentences. Deterrence doesn't seem to work.

24 Ironically, the countries that have the lowest crime

25 rate have lower sentences. If you take that in

1 comparison to the United States, there is no

2 comparative study that indicates that states where the

3 death penalty is passed has a significantly lower death

4 rate than those where there is no death penalty. When

5 one examines the historical and empirical research,

6 there is nothing to indicate that deterrence works on a

7 local level. All the more so on an international

8 level.

9 Before deterrence could ever operate, one

10 would have to ensure that those who were the foot

11 soldiers in some future conflict knew of the sentencing

12 of this Court. In reality, how would that ever be

13 achieved? There can be no deterrence without

14 knowledge.

15 And the very fact that international law

16 tends to reflect crimes committed in conflict that are

17 driven by racial and religious bigotry means that they

18 are much less susceptible to deterrence than crimes

19 motivated out of greed or avarice.

20 We invite the Court to reflect on what has

21 clearly been a conflict of opinion in this arena as to

22 the value of deterrence as a tool of sentencing

23 policy. I remind the Court, of course, of the

24 dissenting judgement of Judge Robinson and also the

25 dissenting judgement of Judge Li. The Court will have

1 seen, in the documents we have submitted, the article

2 by Bing Bing Jai.

3 JUDGE SHAHABUDDEEN: Mr. Clegg, are you still

4 busy with the ground of deterrence or are you moving

5 now to the other ground about the comparison between

6 war crimes and crimes against humanity?

7 MR. CLEGG: I am moving now into that ground

8 and I am very grateful for the assistance of the

9 Court.

10 JUDGE SHAHABUDDEEN: May I ask you one

11 question?

12 MR. CLEGG: Yes.

13 JUDGE SHAHABUDDEEN: Do I understand you

14 correctly to be submitting this: Not that deterrence

15 is not an admissible factor, but that in your

16 submission the Trial Chamber gave too much prominence

17 to it?

18 MR. CLEGG: Yes. May I now move, as I

19 already had, to the distinction, if any, between a

20 crime against humanity and a war crime. And I've

21 already alluded, rather earlier than I should, to those

22 two dissenting judgements in the article which I know

23 the Court will have had an opportunity to read

24 already.

25 In our submission, any analysis of sentencing

1 policy ought not to permit there to be a distinction

2 between the penalty passed as a result of the label

3 that the lawyers put on the actions deemed to be

4 criminal.

5 In all domestic jurisdictions that I am aware

6 of, the sentence will normally vary for the same act

7 physically done by a criminal dependent upon his mental

8 state at the time he commits the act. So I think in

9 almost all jurisdictions, a man who kills, intending to

10 kill, will receive an effectively longer sentence than

11 one who kills in an act of passion. The difference is

12 the sentence reflects the culpability of the accused as

13 reflected by his mental state at the time he did the

14 act.

15 Here the distinction is that one is seeking

16 to distinguish in sentence conduct which is, firstly,

17 exactly the same conduct physically, however it is so

18 described, and carries with it exactly the same mental

19 state of mind. The only distinction is the description

20 given to it by the lawyers. In our submission, that is

21 a false premise for distinguishing on sentence.

22 If one reflects for a moment, I think it was

23 the words of the President of the Trial Chamber said

24 punishment should fit the offender. There's an

25 expression in the English criminal law that punishment

1 should fit the crime. Those are words differently

2 describing the sensible jurisprudential object of

3 punishing somebody for what he has done. In our

4 submission, to seek to distinguish between the same

5 conduct done in the same state of mind, differently so

6 described between crimes against humanity and war

7 crimes, goes against that very sensible and fundamental

8 objective.

9 I ask the question which I anticipate, that I

10 know the President asked rhetorically in an earlier

11 judgement: How does one Judge or assess the

12 distinction between the two? What is the yardstick by

13 which to increase or decrease the sentence depending

14 upon verdict? In our submission, there can be no

15 logical or sensible balancing factor to differentiate

16 between those two crimes.

17 It's of course within the knowledge of this

18 Court that the new International Criminal Court will

19 not distinguish between the two offences in, at any

20 rate, the proposal that is currently being considered.

21 Serious war crimes and crimes against humanity.

22 The only assistance that one has before this

23 Tribunal was established is again back in the cases at

24 Nuremberg following the Second World War. And as one

25 can see in the summary of cases set out in our written

1 submissions, no distinction was drawn at Nuremberg

2 between those two crimes, crimes against humanity and

3 war crimes, and it is, we submit, in reality, a

4 distinction with no difference.

5 So I think, finally, on that third ground of

6 appeal --

7 JUDGE SHAHABUDDEEN: Mr. Clegg, suppose your

8 friend on the other side were to make this submission,

9 that a second count in respect of what appears to be

10 the same act may be intended to protect a distinct

11 societal interest. Would that be supportive of the

12 kind of distinction against which you are now arguing?

13 MR. CLEGG: We would submit not. Any

14 sentencing policy that is intending to protect a

15 society or societorial interest could only do so by

16 deterrence, obviously because one is dealing with the

17 sentencing process after the actual act has occurred.

18 That would tend to imply that if deterrence did work,

19 it would work in a way that distinguished between war

20 crimes and crimes against humanity.

21 So taking the submission to an absurd length,

22 one would have to contemplate a future war criminal in

23 a future conflict saying to himself, "Well, if I do

24 that, that will only be a war crime. So I prefer to do

25 that rather than do something else which may be

1 classified as a crime against humanity, thereby

2 attracting a higher sentence." The absurdity of such a

3 concept, in our submission, illustrates how the idea of

4 seeking to protect a societorial interest, which

5 obviously everybody would seek to do, cannot, in fact,

6 be effective by passing a higher sentence after the

7 event. It can only operate through deterrence and

8 would have to assume an understanding of the

9 distinction which has evaded many lawyers let alone

10 ordinary people. So I think that would be my

11 response.

12 Can I turn very briefly and almost in passing

13 to the last two topics. On reflection, it seemed to

14 Mr. Livingston and I that we had submitted, in relation

15 to the issue of substantial co-operation, already fully

16 before this Appeals Chamber in the last hearing before

17 the appeal -- I'm sorry, the Trial Chamber.

18 May I correct myself. There's been so many

19 hearings before so many different Tribunals in this

20 case.

21 The question of substantial co-operation was

22 fully argued before the Trial Chamber after this Appeal

23 Chamber remitted it for sentencing in relation to the

24 matters that Mr. Tadic had been convicted of following

25 the appeal by the Prosecutor. We rely on those

1 submissions, of which you have a transcript. Having

2 read them, we don't think that there's anything we can

3 usefully add to those.

4 Secondly, so far as the comparative

5 sentencing position of domestic Yugoslav law, that was

6 fully ventilated before this Appeals Chamber in the

7 appeal that was argued at the end of the appeal against

8 conviction, again with one caveat. We don't wish to

9 reargue that but rely on your earlier submissions.

10 The only caveat that we would add is that our

11 analysis of the Yugoslav law would tend to indicate

12 that certainly under local Yugoslav law there is no

13 distinction to be drawn between crimes against humanity

14 and war crimes. And I really pray that in aid on our

15 other head.

16 I'm helpfully reminded by Mr. Livingston that

17 on the question of societorial interest raised by the

18 President of the Appeals Chamber, the dissenting

19 judgement of Judge Robinson, at page 9, deals with a

20 submission that is put far more eloquently than I could

21 have managed, and if I could pray that in aid in

22 response to that rhetorical question that may well have

23 been coming from Mr. Keegan.

24 Unless I can assist the Court any further,

25 those are our submissions.

1 JUDGE SHAHABUDDEEN: Thank you very much,

2 Mr. Clegg.

3 The Prosecution.

4 MR. YAPA: Mr. Keegan will make the

5 submission.

6 JUDGE SHAHABUDDEEN: Mr. Keegan.

7 MR. KEEGAN: Thank you, Your Honours.

8 Having in mind Your Honour's comments with

9 respect to the prior sessions and the briefs that have

10 been filed, I will endeavour to keep my remarks limited

11 to the issues raised today by counsel.

12 Beginning first with this question of the

13 creation of sentencing brackets or a range of

14 sentencing perhaps is the term we may now use, we rely

15 primarily upon our submissions already made in our

16 brief, Your Honour, about the impossibility of doing

17 so. It is, of course, an interesting academic question

18 to raise about the possibility of doing so, but that is

19 the essence of the argument; is it possible for this

20 Tribunal or any Tribunal, for that matter, to, in the

21 first instance, proclaim what their considerations with

22 respect to the range of possible sentence will be

23 before they've even considered cases.

24 As we suggest in our submission, this

25 Tribunal is, in fact, in the process of doing that

1 which counsel now argues for, and they are doing so in

2 the appropriate way, on a case-by-case basis. As this

3 is a new endeavour, it will, of course, take time, and

4 one cannot try and bring forward systems that are

5 developed in any particular national jurisdiction which

6 have the benefit of centuries of judicial precedent

7 upon which to draw in saying one can describe what may

8 be the appropriate range of sentences.

9 In the ultimate instance, the range of

10 sentence is set in the Statute, anywhere between no

11 punishment and life imprisonment, and in between that

12 sentences will be determined on a case-by-case basis as

13 they are.

14 JUDGE SHAHABUDDEEN: Mr. Keegan, Mr. Clegg

15 made the point that this was the first conviction. At

16 the point of time when that conviction was recorded,

17 there would have been no question of there being any

18 range of sentences, but is your friend entitled to take

19 the position that today, in arguing his client's case,

20 he's entitled to refer to such comparative sentences as

21 now exist?

22 MR. KEEGAN: Yes, Your Honour, he would be

23 entitled to do so had that been, in fact, what he did.

24 But that's not, in fact, what he's done. His ground of

25 appeal is that this Appeal Chamber should declare a

1 range of sentences based on apparently some set of

2 objective criteria, and the --

3 JUDGE SHAHABUDDEEN: Didn't he -- I don't

4 reproduce his exact words, but did he not modify that

5 opening argument a little?

6 MR. KEEGAN: Yes, Your Honour, he did.

7 Primarily we would submit, obviously, that having had

8 the benefit of review of our submissions and perhaps of

9 some indications from questions from the Bench in prior

10 hearings. It still raises the ultimate question

11 raised, whether the appellant has satisfied his burden

12 in raising this ground, and that is the focus that we

13 are using in our submissions here, and that is why I

14 say it is important to look at what was the ground of

15 appeal. The original ground of appeal was not: "We

16 want to object to this sentence as being an abuse of

17 discretion by comparing it in detail to the facts and

18 circumstances of other cases before this Tribunal or

19 perhaps the Rwanda Tribunal, in arguing that there is

20 in that comparison proof of an abuse of discretion."

21 The ground of appeal was: "This sentence was unfair

22 because there wasn't some pre-existing sentencing

23 tariff, now range of sentences, by which one could

24 judge what was the sentence if the accused were

25 convicted ahead of time." That, in essence, was the

1 argument.

2 THE INTERPRETER: Would the counsel please

3 slow down.

4 MR. KEEGAN: -- the argument. If one were

5 now to follow the argument made today, they still fail

6 on their burden because they have failed to meet the

7 necessary requirements for that burden.

8 There has been no real comparison between the

9 facts and circumstances of this case and of the case,

10 for example, in Kupreskic or indeed of Jelisic, who was

11 sentenced to 40 years for a series of murders, or any

12 other case. Rather, a vague reference that there was a

13 sentence given in a particular case which we submit

14 should draw your attention. Well, in fact, if

15 attention was drawn to that, one could see that in that

16 case there was a sentence given to the accused, the now

17 convicted person Drago Josipovic, for one count of

18 murder under Article 5 of 15 years. That sentence is

19 entirely consistent with the sentences handed down in

20 this case.

21 We'd also note that the sentence to a count

22 of persecution in that case was 25 years. Entirely

23 consistent with the sentence given here. In that

24 instance to the accused Vladimir Santic.

25 Also in this argument, the appellant raises

1 the question of his position, that he had no position

2 in the events which occurred in Prijedor. Well, that

3 in fact is not the case if one details the facts as

4 determined by the Trial Chamber and in fact by the

5 accused's own words in his work report which is part of

6 the record on this appeal, part of the record of the

7 trial, where he claims himself to have been an

8 important person and a voluntary participant in trying

9 to create a greater Serbia; the fact that he was

10 allowed to enter into these camps, commit his various

11 crimes and the murders, that he apparently did hold

12 some sway over members of the military. The Trial

13 Chamber found in the Haskici murders that this accused

14 appeared to be in control of the group of soldiers. So

15 it is not the case that this accused had no position;

16 he had a very real position to his victims and it was,

17 indeed, a position of power.

18 The problem with some sort of criteria is how

19 would one develop it. What ranks would be sufficient?

20 What positions would be sufficient? We submit that

21 it's impossible to do so under the types of crimes and

22 conditions which existed in the conflict that this

23 Tribunal is considering.

24 The appellant would argue that he is nothing

25 more than the same as hundreds, if not thousands of

1 people who were caught up in the conflict in the former

2 Yugoslavia. Well, that, of course, is not the case at

3 all. There were not hundreds or thousands of people

4 who committed the intentional acts, crimes against

5 humanity and war crimes, that this accused committed.

6 So it is, indeed, a fallacious argument to raise such a

7 defence to his sentence. There were not hundreds or

8 thousands of people who took advantage of the

9 situation, which is what this accused did, to commit

10 crimes for his own benefit or for his own base

11 motives.

12 The appellant also raises the question of the

13 comparison of sentences here to sentences given at the

14 Nuremberg trials. We would submit that that is not

15 entirely a clear and appropriate comparison. The

16 Nuremberg trials, and specifically the trials to which

17 the appellant refers to, was a very specific set of

18 trials which were conducted in a very specific

19 situation; that is, a post-World War II tribunal set up

20 by the allied powers to try those responsible for the

21 crimes committed by the axis powers. The whole issue

22 of how that sentencing was done, of course, was based

23 on the principles considered relevant for sentencing

24 which existed at that time and given that situation, a

25 world war which had gone on for several years.

1 The appellant, of course, does not refer to

2 any of the other trials which were conducted by other

3 tribunals after the Second World War in which many

4 individuals of the same status as this appellant were

5 tried and convicted and, in instances, given more

6 serious sentences than this appellant has received for

7 similar crimes.

8 The last question raised was whether due

9 consideration was given to an appropriate range of

10 punishments in this case. We would submit that the

11 appellant has failed to provide any credible facts or

12 indication from the Trial Chamber's sentencing decision

13 which would indicate that they did not give the

14 appropriate consideration to the full range of

15 sentences, and therefore they have failed to satisfy

16 their burden on this appeal.

17 With respect to the issue of deterrence

18 generally, it would appear that, in fact, the appellant

19 is speaking in what can only be considered contrary

20 positions. The opening statement was that, in fact,

21 deterrence might work for leadership, but is it

22 sensible to envisage that foot soldiers are capable of

23 being deterred. Well, in the very first instance, if,

24 in fact, deterrence does work for the leadership in

25 future situations, there will be no foot soldiers, so

1 we do not even need to raise that issue or get to that

2 question.

3 If we were to follow the logic of the

4 appellant's argument, there would be no reason for this

5 Tribunal to even be here because apparently deterrence

6 is not valid, period, and if deterrence isn't

7 appropriate, then why are we even here? Because that

8 certainly is one of the bases for the establishment and

9 for the purpose of this Tribunal, to not only punish

10 those who perpetrated crimes but to assist in

11 bringing --

12 JUDGE SHAHABUDDEEN: Mr. Keegan, Mr. Clegg

13 indicated that he was not taking the position that

14 deterrence was not an admissible factor. So perhaps

15 you might take that into account when framing your

16 submission that deterrence is not to be taken into

17 account at all. I don't think his submissions went as

18 far as that.

19 MR. KEEGAN: Yes, Your Honour. If, in fact,

20 that is the position, although that was not the first

21 part of his argument -- in fact, it appeared to be the

22 contrary, but his final statement in response to your

23 comment was, indeed, that -- if that is the case and

24 the appellant does agree that deterrence is a viable

25 factor, then we stand on our prior submission that they

1 again have failed to provide any facts or clear

2 indication from the judgement of the Trial Chamber that

3 the Trial Chamber gave undue weight. As we submitted

4 in our original brief, they ignored the actual language

5 of that sentencing judgement which indicated that, in

6 fact, deterrence was only one factor considered, and it

7 gives no indication that deterrence was even the main

8 factor. Rather, if there was a main factor, it would

9 appear to be the individual circumstances of this

10 appellant's crimes and circumstances.

11 With respect to the question of crimes

12 against humanity versus war crimes and whether there

13 should be a distinction in terms of sentencing, with

14 respect, it is not the lawyers who label the

15 seriousness of crimes, rather it is a determination by

16 society based on particular interests that it deems

17 necessary to protect that make a distinction between

18 crimes.

19 Mr. Clegg said that, in fact, differences in

20 sentencing are based not on the particular aspects of

21 crime in the sense of how they may be categorised by

22 society but rather on the mental state of the

23 perpetrator and not on a distinction between their

24 labels. Well, in fact, that's not accurate. It is the

25 case in many national jurisdictions that, for example,

1 acts of wilful killing will, indeed, carry different

2 penalties by virtue of the nature of the victim, for

3 example. In many jurisdictions, the murder of a

4 policeman or a public official is deemed to be a more

5 serious act than a wilful killing of another citizen by

6 virtue of the victim's position. So --

7 JUDGE SHAHABUDDEEN: That is where the law

8 prescribes a certain differential in the seriousness

9 between crimes. Does the law here prescribe any

10 difference in seriousness between crimes?

11 MR. KEEGAN: Yes, Your Honour. The law may

12 prescribe, or may state, in fact, in many

13 jurisdictions, that the position of the victim is an

14 aggravating factor. It is not the case in our

15 jurisdictions that it automatically mandates a more

16 serious sentence. That is the question here.

17 Our submission is that this emphasis on

18 penalty is, in fact, an incomplete analysis of the

19 issue. The fact that in jurisdictions if it is a

20 public official that is murdered does not automatically

21 warrant a more severe sentence, the point is it is

22 considered, all things being equal, a more serious

23 crime than another wilful killing, and that, in

24 essence, we would submit, was the position of the Trial

25 Chamber here following the Erdemovic decision. The

1 language, if we may, was "... all things being equal,"

2 a crime against humanity is a more serious offence than

3 an ordinary war crime. That, we believe, is, in fact,

4 an accurate statement of the intent and, if we can say,

5 belief of the International Community at this stage.

6 The references to the question of how were

7 crimes against humanity considered in Nuremberg, we

8 think, again is an incomplete analysis because it

9 completely ignores the development of the international

10 society over the last 50-plus years, and it may be that

11 crimes against humanity being a relatively new

12 invention after the Second World War, that in

13 considering it in the context of that conflict and in

14 those tribunals, the analysis referred to the nature of

15 the acts of the perpetrators which warranted an

16 interpretation of the term "humanity" to mean the

17 nature of the acts, that is, a violation of what would

18 be considered humane behaviour, and not a reference to

19 the fact that the crime in and of itself is violative

20 of humanities, that is, the collective being, the

21 collective society's interest.

22 We would suggest that over the last 50 years

23 that focus has actually changed, and it is, in fact,

24 now the case that the International Community views

25 crimes against humanity as victimising all of society

1 and not just a particular civilian population involved,

2 because such crimes impact on all of us, and the very

3 nature of the International Community's involvement in

4 the conflict in the former Yugoslavia, in Rwanda and

5 elsewhere, are evidence of that impact, if you will, of

6 those crimes.

7 So we believe that, in fact, with due respect

8 to Judge Robinson, his citation to the analysis of

9 Dr. Fuad Schwalb in 1946 may not, in fact, be the

10 appropriate analysis at this time, that the vision of

11 crimes against humanity by the International Community

12 has changed and developed and therefore does warrant a

13 determination that, all things being equal, a crime

14 against humanity is a more serious crime than an

15 ordinary war crime.

16 That being said, there is nothing in that

17 statement, nor in that principle that then mandates

18 different punishments as a matter of law. What it does

19 state is that it is within the discretion of a court to

20 say that in a particular case where an accused has been

21 convicted of both, the court believes a more serious

22 sentence should be imposed for the crimes against

23 humanity than the war crimes. It doesn't mean to say

24 that that has to be the situation in every case, nor

25 that it's mandated as a matter of law.

1 I believe one of the examples used by Judge

2 Robinson would be the question of murder, both as a war

3 crime and as a crime against humanity, and that if a

4 sentence to life imprisonment was given for murder as a

5 crime against humanity, it would automatically mandate

6 a lesser sentence for a war crime of murder. Well, we

7 don't believe that that is necessarily the case. It

8 can be, for example, that a war crime in a particular

9 instance may, in fact, be more severe or serious in a

10 given case than a crime against humanity. A war crime

11 which was comprised of a series of murders, for

12 example, of prisoners or other protected persons might,

13 in fact, warrant more severe punishment and be a more

14 serious crime than a crime against humanity of

15 non-violent persecution, where the persecution took

16 the -- the actus reus of the persecution was the denial

17 of fundamental rights of employment or religion, et

18 cetera.

19 JUDGE SHAHABUDDEEN: Is that a helpful

20 parallel? Wouldn't you need to focus on the commission

21 of the same act? What Mr. Clegg is saying is that if

22 you bring two different counts charging a crime against

23 humanity and a war crime in respect to the same act,

24 that there should be no difference in penalty. That is

25 how I understand him.

1 MR. KEEGAN: Yes, Your Honour. But first we

2 must address this issue of whether -- which was his

3 initial point -- there should be no distinction. If it

4 is accepted that there can be a distinction and there

5 should be a distinction in the eyes of the

6 International Community, then we're only dealing with

7 the question of appropriate punishment. Therein lies

8 the question of whether it is within the discretion,

9 the lawful discretion, of a Chamber to say that a

10 particular crime or crimes committed which amount to

11 both violations of Article 5 and Article 2, or

12 Article 3, warrant a more serious punishment for the

13 Article 5 violation than the Article 2 or Article 3,

14 the principle being the Chamber is trying to recognise

15 this distinction, this societal principle, that a crime

16 against humanity is recognised as a more serious crime,

17 all other factors being equal.

18 So in that instance, in fact, we suggest that

19 with all the other principles recognised, that is a

20 lawful exercise of discretion and this appellant has

21 failed to address that particular aspect and has failed

22 to satisfy his burden that there was an abuse by this

23 Trial Chamber in its determination.

24 Unless we can assist you any further, Your

25 Honour, those would be our submissions.

1 JUDGE SHAHABUDDEEN: Just to compare notes.

2 I understand you to be saying that whatever was the

3 position in 1945, there has since then been a

4 progression in the evolution of customary international

5 law so that today a crime against humanity is seen as

6 being directed to a societal interest which is distinct

7 from the societal interests to which a war crime is

8 directed, and that accordingly, the penalty for the

9 former should be greater than the penalty for the

10 latter in the normal case, all things being equal.

11 MR. KEEGAN: Yes, Your Honour. I would just

12 qualify that by saying that a distinction in penalty is

13 not an abuse of discretion by a court given the state

14 of international law at this time.

15 JUDGE SHAHABUDDEEN: Thank you. Thank you.

16 Then, Mr. Clegg, would it be convenient for

17 you to respond.

18 MR. CLEGG: Yes.

19 JUDGE SHAHABUDDEEN: Our slot says 15

20 minutes, but you were good enough to indicate a lesser

21 period.

22 MR. CLEGG: I will try to be good to my

23 word.

24 Can I just remind the Court that we never

25 sought to ask you to declare a tariff of sentencing

1 like the Supreme Court -- like the Federal Court in

2 America has. What we asked you to do was to develop,

3 have regard to the need to develop a tariff. In other

4 words, it is an ongoing process. And there is, we

5 submit, a very important distinction between those two

6 propositions. We never said that you should, as it

7 were, declare some rigid list of sentences to be

8 applied irrespective of the justice of the case across

9 the board to people charged before this Tribunal. Too

10 rigid an adherence to a tariff can result in as much

11 injustice as having no regard to comparative sentencing

12 at all.

13 All we're seeking to say is there ought to be

14 a broad comparison between the sentences passed in

15 different cases, and, therefore, we say that this

16 Appeal Chamber now has an advantage that the Trial

17 Chamber did not have in being able to look at

18 comparative sentences which they could not do because

19 there was nothing to compare it with since 1945. That

20 advantage, which you have and they didn't, allows one

21 to look at comparable cases, and I rely particularly on

22 the one today, in order to reflect upon whether the

23 sentencing here has been pitched too high.

24 There is nothing wrong in that approach. We

25 would submit it's the perfectly sensible approach for

1 this Appeal Chamber to adopt, and to do anything else

2 would leave an appellant with a sense of injustice. If

3 this Appeal Chamber were to say, "We close our eyes to

4 what other Trial Chambers have done by way of

5 sentencing and will not look at it," it would be, we

6 suggest, an absurd consequence of this process.

7 I'm not sure upon what material the

8 respondent relies to say there are not hundreds or

9 thousands of people in the former Yugoslavia who would

10 have committed war crimes. I invite the Court just to

11 reflect on the historical events in that region. The

12 Court may well conclude from the number of camps and

13 inevitably the number of people that must have been

14 employed to work in the camps, the collection of

15 people, and the awful genocide that occurred, that

16 there must, indeed, have been hundreds, if not

17 thousands, of people who were involved in one degree or

18 another in these crimes. It's perhaps not possible to

19 give any quantified number to them at this stage in

20 history. But if one goes back to the Second World War,

21 it is undoubtedly the case that tens of thousands of

22 perfectly ordinary citizens were involved in putting

23 into effect the Nazi policy called "The Final Solution"

24 by which Hitler determined that all the Jews of Europe

25 should be killed.

1 It is a sad and remarkable historical fact

2 that in times of war, ordinary people will become

3 embroiled in activity that they would never have

4 countenanced at any other time in their life.

5 We do rely upon the Second World War cases

6 because there is nothing else. There's been nothing

7 since that until now. And the respondents say that

8 there has been a development of customary international

9 law, and I'm now dealing with the distinction to be

10 drawn in sentence between war crimes and crimes against

11 humanity, but without relying upon any case, decision,

12 article, book published between 1945 and the beginning

13 of the conflict in the former Yugoslavia in order to

14 identify such a development.

15 In our submission, there is nothing to

16 indicate that societorial interests in 1945 were any

17 less in protecting or seeking to protect the Jews of

18 Europe than the societorial interests of the Muslims of

19 the former Yugoslavia. And we don't accept, with

20 respect, the proposition that the societorial interests

21 of the Jews at the end of the Second World War were

22 somehow abrogated in way they would not have been now.

23 The whole thrust of Nuremberg was to seek to effect

24 just reparation for what had happened to those people.

25 Unless I could assist the Appeal Chamber any

1 further, those are our submissions.

2 [Trial Chamber confers]

3 JUDGE SHAHABUDDEEN: We're obliged to

4 counsel. We appreciate the assistance we have had from

5 both sides. This has been a relatively brief

6 presentation, and it would be appropriate if the

7 decision were to follow speedily. I think we should be

8 in a position to give you a decision fairly quickly,

9 but I will not now announce the date. We will go into

10 consultations and we will alert you to that eventuality

11 in due course.

12 For the moment, therefore, we would retire.

13 The Appeals Chamber will retire to consider its

14 decision. Unless there is any other matter which

15 demands attention, the Appeals Chamber will, therefore,

16 stand adjourned.

17 --- Whereupon the hearing was adjourned

18 at 11.55 a.m. sine die

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