Institute for War and Peace Reporting | Giving Voice, Driving Change
Although the chamber rejected most of the 48 grounds for appeal brought by the defence and prosecution teams and confirmed the acquittal of Zenjil Delalic, the judges ordered a new trial to reconsider the sentences handed out to Zdravko Mucic, Hazim Delic and Esad Landzo.
The three defendants have the right to appeal against any changes to their sentences. Mucic is currently serving seven years, Landzo 15 years and Delic 20 years.
All charges against Mucic, Delic and Landzo under Article 3 (violations of the laws or customs of war) were dismissed.
Although the number of charges on which the three were convicted has been virtually halved, their position has not in essence changed because they were convicted for the same acts, with the same sentences, under Article 2 (grave breaches).
Nevertheless the appeals chamber has remitted their convictions to a new trial chamber to consider what adjustment - if any - should be made to their sentences.
In the cases of Mucic and Delic, there are additional reasons for reconsidering the convictions.
The appeals chamber accepted the prosecution's appeal against the sentence given to Mucic, the former commander of the prison-camp, which they called "manifestly inadequate".
The judges concluded the trial chamber "failed to take adequate account of the gravity of offences for which Mucic was convicted and that, in a number of respects, it failed to take into account, or gave inadequate weight to, various matters in aggravation..."
Taking into account the various considerations relating to the gravity of his offences, all the aggravating circumstances, the appeals chamber indicated "it would have imposed on Mucic a heavier sentence, of a total of around ten years imprisonment. This is a figure to which the new Trial Chamber to consider sentencing issues may have regard in its own determination."
In the case of Delic, who was originally convicted of five separate incidents of killings, torture and inhuman treatment, the appeals chamber found there was insufficient evidence the accused participated in the beating which resulted in the death of prisoner Scepo Gotovac.
Convictions relating to this incident were quashed and verdicts of not guilty entered. The appeals chamber upheld convictions relating to the other four incidents.
As Delic was sentenced to 20 years for the murder of another detainee at Celebici, his position may be little improved by the quashing of the Gotovac conviction.
The acquitted Delalic had been the first co-accused on the original Celebici indictment. He was alleged to have co-ordinated the activities of the Bosnian Muslim and Bosnian Croat forces in the area and later to have been the commander of the First Tactical Group of the Bosnian Army.
The prosecution had alleged that in this capacity Delalic had authority over the Celebici camp. But the trial chamber found him not guilty on all counts on the basis he did not have sufficient command and control over the Celebici camp and its guards.
In its appeal against Delalic's acquittal, the prosecution contended that the ability of an accused to exercise forms of influence should suffice to establish the relevant superior-subordinate relationship.
But the appeals chamber concluded that, whilst indirect as well as direct relationships of subordination will suffice, "the relevant standard of effective control over subordinates must be established, and that any forms of influence which fall short of such control would not suffice."
The judges rejected the appeals of the accused and confirmed two findings of wider importance from the trial chamber's Celebici judgement, which refer to the application of Article 2 of the tribunal statutes giving the tribunal jurisdiction over grave breaches of the Geneva Convention of 1949.
Any offences charged under Article 2 require the prosecution to prove the existence of an international armed conflict. The trial chamber found that the armed conflict in Bosnia-Herzegovina at the relevant time was international because the Bosnian Serb forces were under the control of the Federal Republic of Yugoslavia.
The appeals chamber re-affirmed the Tadic Conviction Appeal Judgement, which held that the prosecution must establish a foreign intervening party was in "overall control" of local forces. (See Tribunal Update No. 134 for a detailed review of the "overall control standard")
The second condition for the application of Article 2 is that the victims were persons protected under the relevant Geneva Convention. In the Tadic Conviction Appeal Judgement, the appeals chamber held that "a person may be accorded protected person status, notwithstanding the fact that he is of the same nationality as his captors."
The appeals chamber has now concluded that there is no reason to depart from this interpretation and it has confirmed that "the nationality of the victims for the purpose of the application of Geneva Convention IV should not be determined on the basis of formal national characterisations", but that the nationality should take into account the differing ethnicities of the victims and the perpetrators and their bonds with a foreign intervening state. (See also Tribunal Update No. 134)
The primary grounds for appeal entered by Landzo, and latterly his two co-accused, was that presiding trial chamber judge, Adoplhus Karibi-Whyte, "had been asleep during substantial portions of the trial", which violated the defendants' right to a fair trial.
Tribunal Update called attention to this problem in July 1997, several months into the trial. (See Tribunal Update No. 36).
The appeals chamber judgement dedicated 12 pages to this ground for appeal. Defence and prosecution lawyers selected from the audio-visual records of the trial portions in support of and in opposition to the appeal.
Written submissions filed by Landzo's defence contained extensive and detailed descriptions of what was allegedly seen and heard on the videotapes. Before the oral hearing, the appeals chamber viewed the video evidence supplied by both parties.
The appeals chamber concluded the "descriptions given were both highly coloured and gravely exaggerated, and that they appeared to have been given with a reckless indifference to the truth."
The appeals chamber found the appellants had manifestly failed to establish the allegation that Judge Karibi-Whyte was "asleep during substantial portions of the trial", but that the portions of the videotapes relied upon by Landzo's defence nevertheless demonstrated "a recurring pattern of behaviour where the judge appears not to have been fully conscious of the proceedings for short periods of time."
These periods were usually five to ten seconds long and sometimes up to 30 seconds - but they were repeated over extended periods of ten to fifteen minutes. On one occasion only, the judge appeared to be asleep for approximately 30 minutes.
The appeals chamber proceeded to consider whether, notwithstanding their failure to establish the factual basis of these grounds of appeal, the appellants nevertheless have a valid cause for complaint as to the fairness of the trial.
The judges stated, firmly, that Karibi-Whyte's conduct could not be accepted as appropriate conduct for a judge.
The appeals chamber also said that, if a judge suffers from some condition which prevents him or her from giving full attention during the trial, then it is the duty of that judge to seek medical assistance and, if that does not help, to withdraw from the case.
The appeals chamber was not satisfied that any specific prejudice was suffered by Landzo or the other appellants. In the absence of any actual prejudice, the appeals chamber has rejected the appeal.
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