News From The International Criminal Tribunals
Part II: International Criminal Tribunal for the former Yugoslavia (ICTY)
by Cecile E.M. Meijer*
In 2001 the Appeals Chamber rendered three appeals judgements on the merits in ICTY cases: vCelebi´ci and Jelisi´c (both of which are discussed in Human Rights Brief, Volume 9, Issue 1), and Kuprevski´c, which is discussed below. Five ICTY cases on the merits are currently pending on appeal: Blavski´c, Kunarac et al., Kordi´c & Cerkez, Krsti´c, and Kvovcka et al., as well as the Sentencing Judgement in the vCelebi´ci case.
On October 23, 2001, the Appeals Chamber rendered its judgement in Prosecutor v. Zoran Kupre v ski´c, Mirjan Kupre v. ski´c, Vlatko Kupre v ski´c, Drago Josipovi´c, Vladimir Santić(Case No. IT-95-16-A). The Appellants were all Bosnian Croats, whom the Trial Chamber had found guilty of crimes against humanity for their role in the April 1993 attack on the Muslim population of the Bosnian village of Ahmici. On January 14, 2000, the Trial Chamber had sentenced them to imprisonment for terms ranging from 6 to 25 years. In a landmark decision, the Appeals Chamber reversed the convictions of Zoran, Mirjan, and Vlatko Kuprevski´c, and ordered their immediate release from the UN Detention Unit in The Hague. This was the first time in ICTY history that the Appeals Chamber acquitted defendants on appeal. In contrast, the Chamber affirmed the convictions of Josipovi´c and SantiSantić, reversed their acquittal on two counts on grounds of considerations of cumulative convictions, and reduced their prison sentences.
Zoran and Mirjan Kuprevski´c had been found guilty by the Trial Chamber of persecution as a crime against humanity. In addressing their grounds of appeal, the Appeals Chamber examined challenges to the wording of, and lack of specificity in, the Amended Indictment; the participation of both defendants in an attack on one particular house in Ahmici; the Trial Chamber's finding that both defendants provided local knowledge and had their homes used as a base for the attacking troops; and the Trial Chamber's conviction of Zoran and Mirjan Kuprevski´c for persecution prior to the Ahmici attack. With respect to the Amended Indictment, the Trial Chamber concluded that it "failed to plead the material facts of the Prosecution case . . . with the requisite detail" and did not particularize the charge of persecution as a crime against humanity. This vagueness resulted in an infringement on the appellants' right to prepare their defense and rendered the trial unfair. By convicting on the basis of this vague Amended Indictment, the Trial Chamber had erred in law, and the court allowed this ground of appeal.
Both defendants also challenged the Trial Chamber's assessment of the evidence of their participation in one specific attack, provided by a single witness, Witness H, who was 13 years old at the time of the crimes (18 when testifying before the court). In particular, the defendants contested Witness H's identification of them among the attackers on her father's house, in which she was present at the time. After careful consideration of all the defendants' complaints, the Appeals Chamber noted a "collection of errors" on the part of the Trial Chamber and concluded that the lower court's assessment of Witness H's evidence "diverges so significantly from that apparent upon review by the Appeals Chamber" that it "must be rejected as 'wholly erroneous.' " In its view, the Trial Chamber not only "erred in its overall evaluation of the evidence as being compelling and credible," but also " 'in accepting the totality of the evidence as being sufficient to enter a finding of guilt beyond a reasonable doubt.' "
In its final conclusion, the Appeals Chamber concluded that there had been a "miscarriage of justice" because the Trial Chamber had relied upon the evidence of one particular witness, Witness H, without whose testimony the cases against both defendants "cannot stand." The Appeals Chamber found it inappropriate, however, given the circumstances of the case, to remand the case for retrial and consequently reversed the convictions against Zoran and Mirjan Kuprevski´c. Both defendants were ordered released immediately.
Likewise, the conviction of Vlatko Kuprevski´c for one count of persecution as a crime against humanity (based on aiding and abetting) was reversed. The Appeals Chamber reasoned that additional evidence had shown errors of fact with respect to two factors upon which the Trial Chamber had based its decision, while "no reasonable tribunal [sic] of fact could find Vlatko Kuprevski´c guilty as an aider and abettor of persecution based on the remaining evidence." This had resulted in a miscarriage of justice, according to the Chamber. The Appeals Chamber ordered Vlatko Kuprevski´c released immediately.
Although Josipovi´c and Santić were not as successful in their appeals because the Chamber allowed only some of their appeal grounds, the Appeals Chamber revised their sentences. It reduced Josipovi´c's total sentence from 15 to 12 years' imprisonment, and Santić's total sentence from 25 to 18 years' imprisonment, both with credit for time already served.
In 2001 the ICTY Trial Chambers issued several judgements on the merits and sentencing judgements: Kordi´c & Cerkez, Sikirica et al., Krsti´c, Todorovi´c, vCelebi´ci and Kvovcka et al., as well as numerous orders and decisions. The following discusses these judgements except the Kvovcka et al. judgement, which will be reviewed in a later issue.
Kordi´c & Cerkez Judgement
On February 26, 2001, the Trial Chamber pronounced its Judgement in Prosecutor v. Dario Kordi´c & Mario Cerkez (Case No. IT-95-14/2-T). Kordi´c and Cerkez, both Bosnian Croats, had been charged with 44 counts of grave breaches of the Geneva Conventions, violations of the laws or customs of war, and crimes against humanity for atrocities in the Lavsva Valley in Central Bosnia in 1993. The indictment based Kordi´c's and Cerkez's individual and superior responsibility on Articles 7(1) and/or 7(3) of the ICTY Statute. After a lengthy trial, the Trial Chamber found the accused guilty of most charges and sentenced Kordi´c to 25 years' imprisonment and Cerkez to 15 years.
Kordi´c was a political leader for the Bosnian Croats in Central Bosnia and exercised authority in the Lavsva Valley, where most crimes were committed. Regarding the persecution count, the Trial Chamber found that as a civilian leader Kordi´c was "associated with the military leadership," but had no formal part in the chain of command. Based on the evidence, the court did not accept that Kordi´c "was in the very highest echelons of the Bosnian Croat leadership or that he conceived the campaign of persecution," nor was he the "architect of the persecution or the prime mover in it." Kordi´c, however, was a "regional political leader and lent himself enthusiastically to the common design of persecution by planning, preparing, and ordering those parts of the campaign which fell within his sphere of authority." With respect to the charges of unlawful attacks, willful killing, inhuman treatment, detention, and destruction, the court found that "[h]is role was as political leader and his responsibility . . . was to plan, instigate and order the crimes." Finding that he was not a commander nor a civilian superior in the legal sense of having the material ability to prevent or punish the crimes, the Trial Chamber held Kordi´c responsible only under Article 7(1) and not under Article 7(3) of the ICTY Statute. Out of 22 counts charged, the Trial Chamber convicted him on 12 counts, including persecution of the Bosnian Muslim population in Central Bosnia.
In contrast, Cerkez was a military commander in the Bosnian Croat forces who actively participated in attacks on certain villages. This made him a co-perpetrator in the persecution and certain other charges. Also, because Cerkez was a commander, he was held liable under both Article 7(1) and Article 7(3) of the Statute.
The court followed many precedents set by the ICTY in earlier cases. For example, in determining whether the armed conflict at the time and place relevant to the indictment was international in character, the Trial Chamber applied the two tests enunciated in the Tadi´c Appeals Judgement: whether another state (Croatia) had directly intervened in the conflict through its troops, and the alternative test of "overall control" by another state. The Trial Chamber concluded that both criteria were met and that the conflict had been internationalized. Similarly, the court largely followed previous rulings regarding the status of Bosnian Muslims as protected persons, the scope of Article 3 of the ICTY Statute (e.g., whether this article applies to internal armed conflicts), the common elements of crimes against humanity (e.g., widespread or systematic attack against a civilian population), and cumulative convictions.
The Trial Chamber also discussed the important doctrine of individual criminal responsibility for civilian and military leaders under Articles 7(1) and 7(3) of the ICTY Statute. In its examination of liability under Article 7(1), the court provided important analysis of different modes of participation, including planning, instigating, ordering, aiding and abetting, and participating in a common purpose or design.
In its analysis of the superior-subordinate relationship forming part of the doctrine of superior responsibility under Article 7(3), the Chamber quoted extensively from the Čelebići judgements. With respect to civilian leaders it stated that civilians occupying positions of authority may be held liable under the principle of superior responsibility "only if they are found to possess the necessary powers of control over the actual perpetrators." This means that "a government official will only be held liable under the doctrine of command responsibility if he was part of a superior-subordinate relationship, even if that relationship is an indirect one." The fact that the government official is an influential person is insufficient to incur liability, because it is necessary to show that he has effective control over the perpetrators. Or, in the words of the Trial Chamber, "[i]n sum, only those superiors, either de jure or de facto, military or civilian, who are clearly part of the chain of command, either directly or indirectly, with the actual power to control or punish the acts of subordinates may incur criminal responsibility" under Article 7(3).
Sikirica et al.
On September 3, 2001, the Trial Chamber rendered its written Judgement on Defence Motions to Acquit in Prosecutor v. Duvsko Sikirica, Damir Dovsen, and Dragan Kolundûija (Case No. IT-95-8-T), following an oral decision of June 21. In this mid-trial decision, the Trial Chamber acquitted Sikirica of genocide and complicity to commit genocide, and dismissed four specific charges in relation to Dosen. The other charges against them were retained. Subsequently, all three defendants, at different times, pleaded guilty to one count of crimes against humanity for persecution, and each concluded a plea agreement with the Prosecution based on the understanding that the Prosecution would withdraw all other charges. The Trial Chamber accepted the Plea Agreements. On November 13, 2001, the Trial Chamber issued its Sentencing Judgement in the Sikirica et al. case (Case No. IT-95-8-S), imposing sentences that all ranged within the limits agreed upon in the plea agreements. Each defendant received credit for time served, and in accordance with the respective Plea Agreements, no appeals have been filed. On December 6, 2001, Kolundûija was released after having served most of his sentence.
Sikirica was a Commander of Security in the Keraterm camp in Bosnia and Herzegovina, a camp that was known for its inhumane conditions, where Dovsen and Kolundûija were shift leaders. In the Second Amended Indictment, the Prosecution had charged Sikirica with genocide and complicity in genocide, crimes against humanity (persecution, inhumane acts, and murder) and/or violations of the laws or customs of war (outrages upon personal dignity, murder, and cruel treatment). Dovsen and Kolundûija were charged with crimes against humanity and/or violations of the laws or customs of war for, inter alia, persecution, inhumane acts, and outrages upon personal dignity.
In its Judgement on Defence Motions to Acquit, the Trial Chamber analyzed the mens rea necessary for genocide, defined as the "intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such." Its analysis focused on two cumulative elements contained in Article 4(2) of the ICTY Statute: (1) the intent to destroy the group in whole or in part; and (2) the intent to destroy the group as such. With respect to the first element, the court held that there must be "evidence of an intention to destroy a reasonably substantial number relative to the total population of the group," or, if that fails, evidence of an intention "to destroy a significant section of the group, such as its leadership." The Trial Chamber concluded that neither type of intent could be inferred in this case.
Furthermore, the court stated that for genocide the "evidence must establish that it is the group that has been targeted, and not merely specific individuals within that group. That is the significance of the phrase 'as such' in the chapeau. Whereas it is the individuals that constitute the victims of most crimes, the ultimate victim of genocide is the group."
In its Sentencing Judgement, the Chamber followed the general sentencing factors set forth in the ICTY Statute and jurisprudence. First, the gravity of the crime is the primary consideration, together with aggravating circumstances, which require proof beyond a reasonable doubt. Second, mitigating factors must be taken into account, which "need only be established on the balance of probabilities." Third, the general practice regarding prison sentences in former Yugoslav courts must be considered, although this is not binding.
The court then analyzed the gravity of the crime, including aggravating factors, and mitigating circumstances in relation to each accused. It found with respect to Sikirica that his position of authority (in relation to the murder of one individual) and his failure to prevent mistreatment of detainees by outsiders were aggravating factors. It further held that his guilty plea, although entered late, should give him "some credit." Finally, his expression of remorse was deemed sincere and also qualified as a mitigating factor. The Chamber sentenced Sikirica to 15 years' imprisonment (the agreed range was 10-17 years).
With respect to Dovsen and Kolundûija, the Trial Chamber found each one's position as shift leader with limited authority an aggravating factor because both had abused their positions of trust. In contrast to Sikirica, however, neither Dovsen nor Kolundûija had any direct physical involvement in the criminal conduct. The court considered the following circumstances, to different degrees, in mitigation of sentences: their guilty pleas, their expressions of remorse, and the fact that both had often tried to "ameliorate" or "ease" the hard camp conditions for some detainees. Dovsen was sentenced to five years in prison (the limits agreed with the Prosecution were 5-7 years) and Kolundûija to three years (the limits in the Plea Agreement were 3-5 years).
On August 2, 2001, the Trial Chamber rendered a groundbreaking judgement in Prosecutor v. Radislav Krsti´c (Case No. IT-98-33-T), finding for the first time an accused guilty of genocide in Bosnia. General Krsti´c was Chief of Staff of the Drina Corps of the Bosnian Serb Army, and subsequently its commander, when in mid-July 1995 thousands of women, children, and elderly were forcibly transferred from Potocari (near Srebrenica) to Bosnian Muslim-held territory, while thousands of military-aged men were detained and summarily executed. The Trial Chamber found Krsti´c guilty of genocide; persecution for murders, cruel and inhumane treatment, terrorizing the civilian population, forcible transfer and destruction of personal property of Bosnian Muslim civilians; and murder (under Article 3 of the Statute). The Trial Chamber sentenced him to 46 years' imprisonment, with credit for time served.
The Trial Chamber provided an extensive narrative of the events leading up to the take-over of the Bosnian town of Srebrenica and its aftermath, which left tens of thousands uprooted from their homes and some 7,000 dead. In its legal analysis, the court began by examining whether any violations of the laws or customs of war and crimes against humanity had been committed. Having concluded that all pre-requisites for these crimes had been satisfied, it examined the elements of crimes with which Krsti´c had been charged under Articles 3 and 5 of the ICTY Statute: murder; extermination; mistreatment, including serious bodily or mental harm, and cruel and inhumane treatment; deportation and forcible transfer; and persecution. The court gave significant pronouncements on some of these crimes, for example in relation to extermination and the distinction between deportation and forcible transfer.
The Trial Chamber then analyzed at length the crime of genocide. First, the Chamber had to ascertain whether genocide had been perpetrated in Srebrenica in July 1995 against the Bosnian Muslims. In so doing, the Chamber looked at what the state of customary international law was at the time the events took place, particularly in relation to the mens rea, i.e. the "intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such."
With respect to the requirement that a group "as such" be targeted, the Chamber ruled that the Bosnian Muslims constituted the protected group in this case and not the Bosnian Muslims in Srebrenica, which it considered a part of the protected group. In so doing, the court noted that the Genocide Convention did not contemplate a geographic location as a distinctive criterion of a protected group. Also, genocide victims must be targeted "by reason of their membership in a group." Regarding the "intent to destroy" the court held that, in this case, "only acts committed with the goal of destroying all or part of a group" can constitute genocide. Furthermore, it stated that customary international law at the time the acts were committed limited genocide to acts that seek to destroy all or part of the group in a physical or biological sense; thus the destruction of property may be taken into account as proof of the intent to physically destroy the group when occurring simultaneously with such destruction.
Another issue before the Trial Chamber was the meaning and scope of "in part" in the mens rea of "intent to destroy, in whole or in part, a group, as such." The Chamber examined various authorities, including the text, drafting history, and early commentaries to the Genocide Convention, ILC writings, and ICTY and ICTR jurisprudence. This led the Trial Chamber to opine that "the intent to destroy a group, even if only in part, means seeking to destroy a distinct part of the group as opposed to an accumulation of isolated individuals within it. Although the perpetrators of genocide need not seek to destroy the entire group protected by the Convention, they must view the part of the group they wish to destroy as a distinct entity which must be eliminated as such." The court concluded that the intent to kill all military-aged Bosnian Muslim men in Srebrenica constituted "an intent to destroy in part the Bosnian Muslim group within the meaning of Article 4." The Trial Chamber thus concluded that it had been proven beyond a reasonable doubt that genocide had been committed at Srebrenica in July 1995 against the Bosnian Muslims.
The Trial Chamber then turned to the question of General Krsti´c's criminal responsibility. It first assessed his culpability for the crimes committed at Potocari (persecution and inhumane acts as crimes against humanity). The Chamber determined that the political and/or military leadership had embarked upon a joint criminal enterprise to "ethnically cleanse Srebrenica," and that Krsti´c was a key participant in this operation. As the creation of a humanitarian crisis and the forcible transfer of the population fell within the object of that enterprise, Krsti´c, having participated in and/or subscribed to these operations, was held directly responsible for committing those crimes. The Chamber also held Krsti´c responsible for the incidental murders, rapes, beatings, and abuse inflicted upon the refugees at Potocari, as they were the natural and foreseeable consequences of the enterprise of which he was a member.
The Chamber next turned to the issue of whether Krsti´c bore any responsibility in relation to the "escalated joint criminal enterprise" to kill the military-aged men of Srebrenica. While Krsti´c did not conceive the plan to kill the men or kill them personally, the Chamber found that he had participated in the escalated joint criminal enterprise "with the awareness that such killings would lead to the annihilation of the entire Bosnian Muslim community at Srebrenica." Thus, he was found guilty of genocide.
Also, on account of his participation in the escalated enterprise, the Chamber found Krsti´c guilty of murder as a war crime, as well as extermination, persecution, and murder as crimes against humanity. Although the Chamber found that the elements of command responsibility were also met, the Chamber declined to enter a conviction on that basis, finding that his criminal responsibility for the killings was already "sufficiently expressed" in the finding of guilt under Article 7(1).
Todorovi´c Sentencing Judgement
On July 31, 2001, the Trial Chamber rendered its Sentencing Judgement in Prosecutor v. Stevan Todorovi´c (Case No. IT-95-9/1-S), after a guilty plea by the accused on one count of persecutions on political, racial and religious grounds as a crime against humanity. The Trial Chamber sentenced Todorovi´c to ten years' imprisonment with credit for time served.
Todorovi´c was initially one of the accused in the Simi´c et al. case. He was Chief of Police in Bosanski Samac in Bosnia, where he had superior authority over all police officers; he was also a member of the Serb Crisis Staff. The second amended indictment charged Todorovi´c with numerous counts of grave breaches, violations of the laws or customs of war, and crimes against humanity on the basis of individual and/or superior responsibility according to Articles 7(1) and 7(3) of the ICTY Statute. Specifically, he was accused of persecutions on political, racial and religious grounds, unlawful deportation or transfer, murder, willful killing, inhumane acts, cruel treatment, willfully causing great suffering, rape, humiliating and degrading treatment, and torture or inhuman treatment against Bosnian Croats, Bosnian Muslims, and other non-Serb civilians. At his initial appearance he pleaded not guilty to all counts.
In late 1999, Todorovi´c challenged the lawfulness of his arrest and filed a "Notice of Motion for Judicial Assistance." The Trial Chamber granted the motion, but the execution of the order was suspended by the Appeals Chamber pending its final decision. Then in mid-December 2000 (still during the pre-trial phase), the Prosecution and the accused reached a plea agreement stating that Todorovi´c would plead guilty to one count of persecution as a crime against humanity (Count 1 of the indictment), and withdraw all pending motions regarding his arrest and request for judicial assistance. The Prosecution would withdraw all other charges against Todorovi´c and limit the prison term it would recommend to the court. After the Trial Chamber had accepted Todorovi´c's guilty plea, it entered a finding of guilty and subsequently ordered the formal separation of the proceedings against Todorovi´c from those against his co-accused.
The Prosecution and the accused had agreed upon a prison sentence between 5 and 12 years, although the Trial Chamber stated clearly that it was not bound by this agreement. In determining the sentence, the Chamber examined the gravity of the crime and aggravating circumstances. It held that Todorovi´c's "direct participation in the crimes, as well as his abuse of his position of authority and of people's trust in the institution, clearly constitute an aggravating factor." Similarly, the particular cruelty with which some of the offenses were committed and their duration constituted an aggravating factor. The Trial Chamber found that the accused's guilty plea prior to the start of trial proceedings, his cooperation with the Prosecution, which the Chamber considered "substantial," and his genuine remorse were mitigating circumstances that should be taken into account when determining the sentence. The Chamber concluded that the accused's crime of persecution was "particularly grave" given his superior position and the way in which the crimes were committed, but also because persecution as a crime against humanity requires discriminatory intent and incorporates other crimes. It sentenced Todorovi´c to ten years' imprisonment, with credit for time already served.
Čelebići Sentencing Judgement
On October 9, 2001, the Trial Chamber issued its Sentencing Judgement in the Čelebići case (Case No. IT-96-21-Tbis-R117) against Muci´c, Deli´c, and Landûo, after the Appeals Chamber had remitted the case earlier in the year for possible adjustment of sentences. The new Trial Chamber increased Muci´c's sentence from seven to nine years' imprisonment, decreased Deli´c's sentence from 20 years to 18 years, and left unchanged the 15 year sentence imposed on Landûo.
In its Appeals Judgement on the merits of February 2001, the Appeals Chamber had allowed the Prosecution's challenge regarding the seven year sentence imposed on Muci´c, had quashed several convictions on appeal in relation to Deli´c, and had dismissed the cumulative convictions under Article 3 of the ICTY Statute against all three defendants. It had remitted the case to a newly constituted Trial Chamber (to be appointed by the ICTY President) to decide on any adjustments to the original sentences imposed by the Trial Chamber ruling in first instance in 1998. This "adjustment" was not meant as a re-hearing.
With respect to Muci´c, the Appeals Chamber had found the prison sentence of seven years inadequate and had indicated that "a heavier sentence of a total of around ten years imprisonment" would be more appropriate, leaving aside the possible impact of the reversal of some convictions. The Trial Chamber took this indication into account and changed Muci´c's sentence to nine years' imprisonment. The Trial Chamber adjusted Deli´c's sentence downward from 20 years to 18 years, based on "the totality of [his] criminality," after the Appeals Chamber had quashed his conviction on two counts.
Following its dismissal of the cumulative convictions, the Appeals Chamber had stated that "the final sentence should reflect the totality of the culpable conduct and overall culpability of the offender." Within this context, the Trial Chamber found that the "totality of . . . criminal conduct" of all three defendants had not been reduced due to the quashing of the cumulative convictions, and it allowed no adjustment on this ground. All three received credit for time already served.
* Cecile E.M. Meijer is Legal Coordinator of the War Crimes Research Office at the Washington College of Law.
The proper citation for this article in the Human Rights Brief Volume 9, Issue 2, beginning at page 25 is: 9 No. 2 Hum. Rts. Brief 25 (2002).