Celebici Judgment

Friday, 11 November, 2005

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IWPR ICTY

It appears certain that the verdict and sentences are to go before the Appeals Chamber, but even the possibility of a re-trial, which was called by both sides at various stages of this nineteen-month trial, is not ruled out entirely. The trial ended in a 'draw', 2 - 2. The Prosecutor is unhappy with Delalic's acquittal and the "inappropriate" sentence passed on Mucic, and has announced appeals in both cases. Meanwhile, the Defence counsels of Landzo and Delic, deem that their clients were sentenced too severely-- particularly in view of the 'lenient' sentences passed by the Trial Chamber on the first two defendants of the Celebici trial. They have also announced their appeals.

The indictment against Zejnil Delalic, Zdravko Mucic, Hazim Delic and Esad Landzo was issued on 21 March 1996. It alleged that in 1992, forces consisting of Bosnian Muslims and Bosnian Croats took control of those villages containing predominantly Bosnian Serbs within and around the Konjic municipality in central Bosnia. Persons detained during these operations were held in the Celebici prison camp, where detainees were killed, tortured, sexually assaulted, beaten and otherwise subjected to cruel and inhuman treatment.

With the assistance of 122 witnesses and with 691 exhibits, that part of the indictment was proved during the trial beyond any doubt: the Trial Chamber concluded that the inmates of Celebici prison-camp were unlawfully detained ("as a collective measure aimed at a specific group of persons, based mainly on their ethnic background, and not a legitimate security measure"), and that they were subjected to inhumane conditions during their captivity in the camp. Those conditions were described as the atmosphere of terror, inadequacy of food, lack of access to water, lack of proper medical care, inadequacy of sleeping and toilet facilities...

The evidence clearly demonstrates --the judgment concludes-- "that those individual acts specifically alleged in the indictment and found proven by the Trial Chamber" (wilful killings, torture, rape, causing great suffering or serious injury, inhumane acts...) "in no way represent the totality of the cruel and oppressive acts committed against the detainees in the Celebici prison-camp."

What the Prosecution and part of Defence believed controversial in the Celebici Judgement is not the quoted description of the camp conditions, but the manner in which the judges (Presiding Adolphus Karibi-Whyte; Judges Elizabeth Odio Benito and Saad Saood Jan) established responsibility and passed sentences for such conditions. Severe sentences to direct perpetrators and a relative leniency towards the commander, as well as the acquittal of the defendant who was in the highest position in the camp, created the impression that the judges had "descended the ladder of responsibility" and caused grave concern in the media and legal circles around the world. Some commentators went as far as to conclude that regardless of how difficult the Tribunal finds it to apprehend indictees in highest positions of power - such as Dr. Radovan Karadzic or General Ratko Mladic --it may find it even more difficult to sentence them.

In the case of Zejnil Delalic, the judges concluded that the Prosecution "failed to prove that he had command authority and, therefore, superior responsibility over Celebici prison-camp, its commander, deputy commander or guards." The Prosecution, the judgment continues, "failed to prove this element either through documentary evidence, de jure, or by the conduct of Mr. Delalic de facto in all his interactions with the personnel at the Celebici prison camp and the guards.

In the analysis of Delalic's role, which takes a full 50 pages of the judgment, the Trial Chamber has practically accepted the entire argument of his defence, which said that the defendant, first as the 'coordinator' between military forces and civilian authorities, and subsequently as the commander of Tactical Group I, did not have any authority over the Celebici prison camp and its staff. The judges further refused to accept a multitude of documents seized during the search of the office of Delalic's private company in Vienna (the so called Vienna Documents), concluding that there is no evidence of their authenticity, and that those exhibits "do not provide reliable evidence of the command authority or superior responsibility of Zejnil Delalic."

The basis for appeal against Zejnil Delalic's acquittal, said Prosecutor Grant Niemann in a statement to Tribunal Update, will be the documents confiscated by the Tribunal's investigators in Konjic and Sarajevo last June during the search conducted under a warrant issued by one of the Tribunal's judges. When the Prosecutor tried to submit those documents to the Tribunal during the final stages of the trial, the Trial Chamber refused on grounds that it was "too late" [to submit additional evidence]. The Prosecutor in turn, requested the Appeal Chamber to allow an appeal claiming that the Trial Chamber's decision will cause "irreparable prejudice and harm to the Prosecution's case", since the documents concerned are "critical and probative and may have a direct impact on the Trial Chamber's judgement with regard to at least one of the accused".

The Prosecutor claims that the seized documents (including Delalic's orders, and a report on the operation of the Celebici camp, signed by Delalic, Mucic, and Delic) represent "critical evidence that ultimately links the individual accused with the atrocities that occurred in the camp". The ultimate consequence of such a decision, the Prosecutor says, might be the acquittal of the accused on the basis of "improperly excluded evidence", and would lead to a situation where "a mistake of law would require a re-trial after an acquittal" (see Tribunal Update 88)

The Prosecution's leave to appeal, however, was denied by the Appeals Chamber, on the ground that the Trial Chamber decisions would not "cause such prejudice to the case of the Prosecution as could not be cured by the final disposal of the trial including post-judgement appeal". (see Tribunal Update 92)

If in the opinion of the Trial Chamber, the Prosecutor was unsuccessful in securing the conviction of Zejnil Delalic, he was more successful in proving the responsibility of Celebici's commander, Zdravko Mucic. He was found guilty on 11 counts and sentenced to seven years' imprisonment for his superior responsibility for murder (six victims), torture (six victims), causing great suffering or serious injury (four victims), inhumane acts (six victims), and for his direct participation in the unlawful confinement of civilians in inhumane conditions.

Explaining its sentence, the Trial Chamber wanted to emphasize "the duty of a commander of any detention facility during an armed conflict... Mr. Mucic was clearly derelict in this duty and allowed those under his authority to commit the most heinous of offenses, without taking any disciplinary action. Furthermore, as commander of the Celebici prison camp, he was the person with the primary responsibility for the conditions in which the prisoners were kept..."

In view of the Prosecutor, the seven-year sentence passed on Mucic does not reflect adequately his primary responsibility for the camp conditions. His case is thus also expected to appear before the Appeal Chamber.

The third co-accused, Hazim Delic, was found guilty of 13 grave breaches of the Geneva Conventions and Violation of the laws and customs of war and sentenced to 20 years' imprisonment for murder (two victims), torture and rape (two victims), causing great suffering or serious injury (one victims), inhumane acts involving the use of an electrical device and inhumane conditions. The accused, Judge Karibi-Whyte stressed, "displayed a singular brutality... and a calculated cruelty... He raped two defenceless women on several occasions, seeking to exert his power over them and instil absolute fear in them. The Trial Chamber considers the rape of any person to be a despicable act which strikes at the very core of human dignity and physical integrity... It appears that he took a sadistic pleasure in causing the detainees pain and suffering..."

Announcing an appeal against such "drastic sentence", Delic's American Defence counsel, Thomas Moran, pointed out that "the most dangerous man in the box" was sentenced to five years less than his client.

The "most dangerous man" of Moran's statement is Esad Landzo, who admitted committing some of the crimes in the closing stages of the trial, attributing the responsibility to Hazim Delic, under whose alleged orders he murdered and tortured the inmates of Celebici. Landzo was found guilty of 17 counts and sentenced to 15 years' imprisonment for killings (three victims), torture (three victims), causing great suffering or serious injury (two victims) and inhumane conditions. While the judges have dismissed his defence of diminished responsibility, they "have noted his young age at the time (19 years old) and his impressionability and immaturity..." which led them to impose "a less severe sentence than the seriousness and cruelty of his crimes would ordinarily require." The Trial Chamber, however, "does not accept that Mr. Landzo was the mere instrument of his superiors, lacking the ability to exercise independent will. The nature of his crimes is suggestive of significant imagination and a perverse pleasure in the infliction of pain and suffering..."

Landzo's American defence counsel, Cynthia McMurrey-Sinatra, also announced an appeal against the sentence passed against her client.

As opposed to the first judgement passed by the Tribunal, in the case of Dusan Tadic, where the majority (2:1) of judges ruled that the conflict in Bosnia and Herzegovina was not of international character, the judges in Celebici trial were in no dilemma in respect of the legal classification of that conflict. "The Trial Chamber finds that the conflict... must be regarded as an international armed conflict throughout 1992. There can be no question that forces external to Bosnia and Herzegovina, particularly the forces of the Yugoslav People's Army (JNA), participated in hostilities in that State.

"In mid-May 1992, there was an attempt by the authorities of the Federal Republic of Yugoslavia (FRY) to create the appearance that they were no longer involved (...). The Trial Chamber finds, however, that this was a deliberate attempt to mask the continued involvement of the FRY...".

The Celebici Judgement is, also, the first elucidation of the concept of command responsibility by an international judicial body since the cases decided in the wake of the Second World War. It emphasizes that the doctrine of command responsibility encompasses "not only military commanders, but also civilians holding positions of authority (...) " and "not only persons in de jure positions but also those in such de facto positions (...)".

Finally, this Judgement entails also the first conviction for rape as an instrument of torture by the International Tribunal. Rape as torture is charged as a grave breach of the Geneva Conventions and a violation of the laws and customs of war. According to the Trial Chamber "there can be no question that acts of rape may constitute torture under customary law".