1 - Emphasis added. Chapter VII is entitled “Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression”.
2 - Expert Report of Dr. Nancy Grosselfinger, p. 11.
3 - Ibid., p. A.
4 - Ibid., pp. 17-19.
5 - Ibid., pp. 11-12, Prosecutor v. Nikolic, Case No. IT-94-2-S, Third Amended Indictment, 31 October 2003, paras 1, 37.
6 - Expert Report of Dr. Nancy Grosselfinger, p. 12.
7 - Ibid., pp. 11, 14, 15, 18; Witness Jovo Delic, T. 307.
8 - Sentencing Hearing, T. 335.
9 - The initial Indictment listed counts against the Accused in paras. 1.1 – 24.1 without specifying the number of counts. The Prosecutor of the Tribunal against Dragan Nikolic, a.k.a. “Jenki” Nikolic, Case No IT-94-2-I, Review of Indictment, 4 November 1994.
10 - The Prosecutor of the Tribunal against Dragan Nikolic, a.k.a. “Jenki” Nikolic, Case No IT-94-2-I, Warrant of Arrest to the Bosnian Serb Administration in Pale, 4 November 1994.
11 - The Prosecutor of the Tribunal against Dragan Nikolic, a.k.a. “Jenki” Nikolic, Case No IT-94-2-I, Warrant of Arrest to the Republic of Bosnia and Herzegovina – Sarajevo, 4 November 1994.
12 - The Accused was believed to be residing on the territory either of the then Republic of BiH or of the then Bosnian Serb administration in Pale, which had not been recognized as a State by the international community. Ibid. and supra footnote 10.
13 - “On 15 November 1994, the Registrar received official notification that the Republic of Bosnia and Herzegovina was unable to execute the arrest warrant due to the fact that Dragan Nikolic resides in the town of Vlasenica, which was stated to be “temporary occupied territory controlled by aggressors”. […] There has been no response from the Bosnian Serb administration concerning its willingness or ability to execute the warrant of arrest issued against Dragan Nikolic.” The Prosecutor v. Dragan Nikolic, a.k.a. “Jenki”, Case No IT-94-2-R61, Review of Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, 20 October 1995, pp. 21-22.
14 - The Prosecutor v. Dragan Nikolic, a.k.a. “Jenki” Nikolic, Case No IT-94-2-R61, Order Submitting Indictment to Trial Chamber for Hearing, 16 May 1995. This was the first hearing in ICTY initiated pursuant to Rule 61 of the Rules.
15 - The Prosecutor v. Dragan Nikolic, a.k.a. “Jenki”, Case No IT-94-2-R61, Review of Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, 20 October 1995, p. 1.
16 - Ibid., p. 23.
17 - Ibid.
18 - Ibid., p. 24.
19 - Letter dated 31 October 1995 from the President of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the territory of the Former Yugoslavia Addressed to the President of the Security Council, S/1995/910, 31 October 1995.
20 - The Prosecutor v. Dragan Nikolic, a.k.a. “Jenki” Nikolic, Case No IT-94-2-R61, International Warrant of Arrest and Order for Surrender, 20 October 1995.
21 - See infra subsection III. A. 2.
22 - The Prosecutor v. Dragan Nikolic, Case No IT-94-2-I, Ordonnance du Président relative à l’attribution d’une affaire à une Chambre de Première Instance, 26 April 2000. At that time, Trial Chamber II was comprised of Judge Hunt (Presiding), Judge Mumba and Judge Liu.
23 - The Prosecutor v. Dragan Nikolic, Case No IT-94-2-I, Initial Appearance, T. 4-5. See infra para. 14 for specific details as to the amendments to the original indictment of 4 November 1994.
24 - The Prosecutor v. Dragan Nikolic, Case No IT-94-2-PT, Ordonnance du Président relative à la composition d’une Chambre de Première Instance pour une affaire, 23 November 2001.
25 - The Prosecutor v. Dragan Nikolic, Case No IT-94-2-S, Third Amended Indictment, 31 October 2003.
26 - “Based on this review of the indictment and in light of all the material submitted by the Prosecutor, the Chamber would like to draw the Prosecutor’s special attention to two points which it deems to be particularly important”. In light of Rule 50, “it is the prerogative of the Prosecutor, not the Chamber, to amend the indictment”, therefore “the Chamber can only express its belief and invite the Prosecutor to amend the indictment accordingly, should he share such belief.” The Prosecutor v. Dragan Nikolic, a.k.a. “Jenki”, Case No IT-94-2-R61, Review of Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, 20 October 1995, para. 32.
27 - The Prosecutor v. Dragan Nikolic, Case No IT-94-2-I, Order Confirming the Amended Indictment, 12 February 1999.
28 - Further Initial Appearance, T. 79.
29 - The Prosecutor v. Dragan Nikolic, Case No IT-94-2-PT, Annex B Admitted, Undisputed and Contested Facts, 15 May 2003. In para. 145 of this document, the Parties agreed that “from at least early June 1992 until about 30 September 1992 an armed conflict existed in Bosnia Herzegovina”. During the Sentencing Hearing it was admitted that there was a widespread and systematic attack, which was still contested in para. 146 of this document, and that the wording of para. 36 of the Indictment is correct, T. 200-201.
30 - The amendments included, inter alia, reference to the Accused as “a” commander of the camp, instead of “the”; expansion of the factual allegations in Count 1 with the Accused’s aiding and abetting rape and his other participation in sexual violence against Muslim female detainees and with the facts relating to the Accused’s participation in the creation and maintenance of an atmosphere of terror and inhumane living conditions which were charged previously in Counts 2, 7 and 8 as inhumane acts under Article 5(i) of the Statute, The Prosecutor v. Dragan Nikolic, Case No IT-94-2-PT, Second Motion for Leave to Amend the Second Amended Indictment, 25 June 2003.
31 - Status Conference, T. 159. It was later confirmed by the Trial Chamber in a written decision of 30 June 2003. The Prosecutor v. Dragan Nikolic, Case No IT-94-2-PT, Decision on Prosecution’s Motion for Leave to Amend the Second Amended Indictment, 30 June 2003.
32 - Status Conference, T. 153-154.
33 - Status Conference, T. 162-163.
34 - See infra para. 35.
35 - The Prosecutor v. Dragan Nikolic, Case No IT-94-2-PT, Plea Hearing, T. 184.
36 - The Prosecutor v. Dragan Nikolic, Case No IT-94-2-PT, Motion to Determine Issues as Agreed Between the Parties and the Trial Chamber as Being Fundamental to the Resolution of the Accused’s Status Before the Tribunal in Respect of the Jurisdiction of the Tribunal under Rule 72 and Generally, the Nature of the Relationship Between the OTP and SFOR and the Consequences of any Illegal Conduct Material to the Accused, His Arrest and Subsequent Detention, 29 October 2001, para. 20.
37 - The maxim male captus, bene detentus (in the meaning of “illegally captured, legally detained”) expresses the principle that a court may exercise jurisdiction over an accused person regardless of how that person has come into the jurisdiction of that court, The Prosecutor v. Dragan Nikolic, Case No IT-94-2-PT, Decision on Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal, 9 October 2002, para. 70.
38 - Ibid., paras 56 and 71.
39 - Ibid., para. 64.
40 - Ibid.
41 - Ibid., paras 76, 95, 100.
42 - Ibid., para. 97.
43 - Ibid., para. 100.
44 - Ibid., para. 101.
45 - Ibid., para. 103.
46 - According to Black’s Law Dictionary, 7th ed. Appendix A, page 1631, Legal Maxims, this maxim is translated as “a person acts with deceit who seeks what he will have to return [immediately].” The Prosecutor v. Dragan Nikolic, Case No IT-94-2-PT, Decision on Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal, 9 October 2002, para. 104.
47 - Ibid., para. 111.
48 - Ibid.
49 - Ibid., footnotes omitted (emphasis added).
50 - Ibid., para. 114.
51 - Ibid.
52 - Ibid., para. 115.
53 - The Prosecutor v. Dragan Nikolic, Case No IT-94-2-PT, Decision to Grant Certification to Appeal the Trial Chamber’s “Decision on Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal”, 17 January 2003 and The Prosecutor v. Dragan Nikolic, Case No IT-94-2-PT, Appellant’s Brief on Appeal against a Decision of the Trial Chamber dated 9th October 2002, 24 January 2003.
54 - The Prosecutor v. Dragan Nikolic, Case No IT-94-2-AR73, Decision on Interlocutory Appeal Concerning Legality of Arrest, 5 June 2003, para. 27.
55 - Ibid., para. 26.
56 - Ibid., paras 26-27.
57 - Ibid., para. 30.
58 - Ibid., para. 32 (emphasis added).
59 - The Prosecutor v. Dragan Nikolic, Case No IT-94-2-PT, Scheduling Order, 28 August 2003.
60 - The Prosecutor v. Dragan Nikolic, Case No IT-94-2-PT, Joint Motion to Postpone the Deposition Hearing Scheduled for 1 September 2003, 1 September 2003, para 1.
61 - The Prosecutor v. Dragan Nikolic, Case No IT-94-2-PT, Scheduling Order, 2 September 2003.
62 - Plea Hearing, T. 176.
63 - Plea Hearing, T. 182-183.
64 - Plea Hearing, T. 184.
65 - Plea Hearing, T. 186, 191, 192, 195-196.
66 - The Prosecutor v. Dragan Nikolic, Case No IT-94-2-PT, Scheduling Order, 11 September 2003.
67 - The Prosecutor v. Dragan Nikolic, Case No IT-94-2-PT, Scheduling Order, 25 September 2003, p. 2.
68 - Admitted into evidence as Exh. P1 (statement of Witness SU-115) and Exh. P2 (statement of Witness SU-230).
69 - Admitted into evidence as Exh. P6.
70 - Jovo Delic, T. 308-309.
71 - Ljiljana Rikanovic, T. 325.
72 - Admitted into evidence as Exhs D1, D2 and D3, respectively.
73 - The Sentencing Report was admitted into evidence as Exh. J1 and the power point presentation that formed the basis of his testimony in court was admitted as Exh. J2.
74 - Sentencing Hearing, T. 428 – 429.
75 - This new revised and consolidated version of the Sentencing Report, including the annexes on Country Reports, was admitted into evidence as Exh. J1/1 and the German translation of the Country Reports were admitted as Exh. J1/2.
76 - Sentencing Hearing, T. 355.
77 - The Prosecutor v. Dragan Nikolic, Case No IT-94-2-S, Confidential Addendum to Defence Sentencing Brief, 19 November 2003. On 1 December 2003, the Trial Chamber issued a decision lifting the confidentiality of Defence Confidential Sentencing Brief of 23 October 2003 and Confidential Addendum to Defence Sentencing Brief of 19 November 2003. The Prosecutor v. Dragan Nikolic, Case No IT-94-2-S, Decision on Lifting Confidentiality of the Defence Sentencing Brief, 1 December 2003.
78 - The Grosselfinger Report was admitted into evidence as Exh. J3.
79 - Sentencing Hearing, T. 444 – 455.
80 - Exh. P7.
81 - Compare, inter alia, Krnojelac Appeal proceedings, T. 327, line 9: “The Chamber, according to the principles and standards of international law […] must listen to what Mr. Milorad Krnojelac would like to say to us […]”; Kunarac Appeal proceedings, T. 343-344; Krstic Appeal proceedings, T. 447; Vasiljevic Appeal proceedings, T. 164-165; Simic et al., Trial proceedings, T. 20721; Stakic Trial proceedings, T. 15331-32, Mrdja Sentencing Proceedings, T. 194.
82 - Statement by the Accused, T. 500-503.
83 - Emphasis added.
84 - Plea Hearing, T. 186, 191, 192, 195-196.
85 - Plea Hearing, T. 174-176.
86 - Plea Hearing, T. 196.
87 - Indictment, para. 38.
88 - Ibid., para. 37.
89 - Ibid., para. 40.
90 - Ibid., para. 42.
91 - Ibid., paras 43-44.
92 - Ibid., para. 1.
93 - Ibid., para. 45.
94 - Ibid., para. 46.
95 - Ibid., para. 45.
96 - Ibid., para. 44.
97 - Ibid., para. 46.
98 - Ibid., para. 47.
99 - Ibid., para. 42.
100 - See supra para. 48.
101 - Plea Hearing, T. 192 and 196.
102 - Indictment, paras 1 and 3.
103 - Ibid., para. 4.
104 - Ibid., para. 6.
105 - Ibid., para. 4 (as described in paras 20 and 21 of the Indictment). Certain allegations in paragraphs 20 and 21 of the Indictment underlying the charge of aiding and abetting rape in Count 3 do not appear to fall within the definition of this crime. In the Chamber’s view, these acts, which are described in the Indictment as forms of sexual violence, are more appropriately subsumed within the charge of persecutions in Count 1. The term “sexual violence” has not previously been defined before this Tribunal, but the Trial Chamber considers that the criminal behavior outlined in this Judgement should be considered as “sexual violence” in the common usage sense of the term. Therefore, the Trial Chamber adopts for this Judgement only, the term “sexual violence” as used by the Prosecution, but subsumes this conduct under the charge of Persecutions.
106 - Indictment, para. 6.
107 - Ibid., para. 6.
108 - Ibid., para. 5.
109 - Ibid., para. 8.
110 - Ibid., para. 9.
111 - Ibid., para. 10.
112 - Ibid., para. 11.
113 - Ibid., para. 12.
114 - Ibid., para. 13.
115 - Ibid., para. 14.
116 - Ibid. para. 15.
117 - Ibid.
118 - Ibid., para. 16.
119 - Ibid.
120 - Ibid., para. 17.
121 - Ibid.
122 - Ibid.
123 - Ibid., para. 18.
124 - See footnote 105.
125 - Here paras 87-88 (footnote added); highlighting part of this text in bold reflects the text as printed in the Indictment.
126 - Indictment, para. 23.
127 - Used in a derogatory manner.
128 - Indictment, para. 24 (emphasis added).
129 - Ibid., para. 25.
130 - Ibid. (emphasis added).
131 - Ibid., para. 26.
132 - Ibid., para. 27.
133 - Ibid., para. 28.
134 - Ibid.
135 - Ibid., para. 29.
136 - Ibid., para. 30.
137 - Ibid., para. 31.
138 - Ibid., para. 32.
139 - Ibid., para. 33.
140 - Ibid., para. 34.
141 - Ibid.
142 - Annex A -Plea Agreement, para. 4.
143 - See supra para. 48.
144 - The Trial Chamber adopts the terminology contained within the Indictment but notes that forcible transfer is an equivalent term to forcible displacements, forcible transfer and deportations as discussed in Krnojelac Appeal Judgement, paras 217-223, Stakic Trial Judgement, paras 671-684 and Krstic Trial Judgement, paras 520-523.
145 - See supra subsection V. A. 2. (a)
146 - Stakic Trial Judgement, para. 736 (footnotes omitted).
147 - See supra subsection V. A. 2.
148 - Simic et al. Trial Judgement, paras 1056-1057.
149 - Stakic Trial Judgement, para. 869.
150 - Kunarac et al. Appeal Judgement, para. 168.
151 - Celebici Appeal Judgement, paras 412-413 cited from Krstic Trial Judgement, para. 664 (emphasis added).
152 - Stakic Trial Judgement, para. 870.
153 - Statement by the Accused, T. 189-192.
154 - Ibid., T. 195-196.
155 - See supra Introduction.
156 - In the present case, the Parties merely agreed on the factual basis of the Indictment as the agreed facts in the Plea Agreement.
157 - For a detailed discussion on the appropriateness of plea agreements in cases involving serious violations of international humanitarian law see Momir Nikolic Sentencing Judgement, paras 57–73.
158 - Stakic Trial Judgement, para. 899.
159 - Ibid., para. 901.
160 - R. v. Bloomfield (1999( NTCCA 137, para. 17: “Individualised justice is the touchstone of judicial sentencing, tailoring the sentence in each case to the circumstances of the offence and of the offender.”
161 - In the Canadian Supreme Court decision of R. v. Martineau, the Court stated:

[The] punishment must be proportionate to the moral blameworthiness of the offender, or as Professor Hart puts it in Punishment and Responsibility (1968), at p. 162, the fundamental principle of a morally based system of law [is] that those causing harm intentionally be punished more severely than those causing harm unintentionally. (R. v. Martineau, [1990] 2 S.C.R. 633, p. 645).

This position was applied and further expanded in the subsequent decision of R. v. Arkell in which the Court declared:

[W]here a murder is committed by someone already abusing his power by illegally dominating another, the murder should be treated as an exceptionally serious crime. [… The] decision to treat more seriously murders that have been committed while the offender is exploiting a position of power through illegal domination of the victim accords with the principle that there must be a proportionality between a sentence and the moral blameworthiness of the offender and other considerations such as deterrence and societal condemnation of the acts of the offender. (R. v. Arkell, [1990] 2 S.C.R. 695, p. 704).

162 - Stakic Trial Judgement, para. 900, as quoted in Prosecution Sentencing Brief, para. 7.
163 - Prosecution Sentencing Brief, para. 7.
164 - Defence Sentencing Brief, pp. 3-4.
165 - Ibid., pp. 4-5.
166 - Ibid., p. 5.
167 - Ibid., p. 8.
168 - Celebici Appeal Judgement, para. 806 (footnotes omitted).
169 - Ibid.
170 - Stakic Trial Judgement, para. 900.
171 - Todorovic Sentencing Judgement, para. 30 (footnotes omitted).
172 - Stakic Trial Judgement, para. 902; see Aleksovski Appeal Judgement, para. 185; Celebici Appeal Judgement, para. 806; for Integrationsprävention see German Constitutional Court, BVerfGE 90, 145 (173); BVerfGE 45, 187 (255f). See also Radke in Münchener Kommentar, Strafgesetzbuch, Vol. 1, §§1-51 (München, 2003).
173 - R. v. Bloomfield [1999] NTCCA 137 para. 19 (footnotes omitted).
174 - Article 14 paragraph 1, sentence 1 of the ICCPR.
175 - Aleksovski Appeal Judgement, para. 185.
176 - R. v. M.(C.A.) [1996] 1 S.C.R. 500, para. 80 (emphasis in original).
177 - See supra para. 4.
178 - Celebici Trial Judgement, para. 1225 endorsed in Aleksovski Appeal Judgement, para. 182, Celebici Appeal Judgement, para. 731 and Jelisic Appeal Judgement, para. 101. See also Furundzija Appeal Judgement, para. 249.
179 - Kupreskic et al. Trial Judgement, para. 852 endorsed in Aleksovski Appeal Judgement, para. 182, Celebici Appeal Judgement, para. 731 and Jelisic Appeal Judgement, para. 101. In Stakic this Trial Chamber stated that “The sentence must reflect the gravity of the criminal conduct of the accused. This requires consideration of the underlying crimes as well as the form and degree of the participation of the individual accused” and “The Trial Chamber recalls that if a particular circumstance is included as an element of the offence under consideration, it cannot be regarded also as an aggravating factor since each circumstance may only justly be considered once”, Stakic Trial Judgement, paras 903-904.
180 - Akayesu Trial Judgement, para. 40 endorsed in Akayesu Appeal Judgement, para. 414.
181 - Celebici Appeal Judgement, para. 777.
182 - Celebici Appeal Judgement, para. 763.
183 - Stakic Trial Judgement, para. 920 cited from Kunarac et al. Trial Judgement, para. 847 and Sikirica et al. Sentencing Judgement, para. 110.
184 - Stakic Trial Judgement, para. 920.
185 - This factor is considered in more details in sub-section VIII. B. 1. (b).
186 - Kupreskic et al. Appeal Judgement, para. 464.
187 - Celebici Appeal Judgement, para. 788, Erdemovic 1998 Sentencing Judgement, para. 16.
188 - Celebici Appeal Judgement, paras 775-776, Serushago Appeal Judgement, para. 24.
189 - Jelisic Appeal Judgement, para. 131, Erdemovic 1998 Sentencing Judgement, para. 16.
190 - Kunarac et al. Appeal Judgement, para. 408, Erdemovic 1998 Sentencing Judgement, para. 16.
191 - Kunarac et al. Appeal Judgement, para 377.
192 - Tadic Judgement in Sentencing Appeals, para. 21, Kupreskic et al. Appeal Judgement, para 418, Jelisic Appeal Judgement, para 117, Celebici Appeal Judgement, para 813.
193 - See supra para. 38.
194 - Of the 17 judges interviewed, 6 were from BiH (3 from the Federation of Bosnia and Herzegovina and 3 from the Republika Srpska), 5 judges from Croatia, 3 judges from the former Yugoslav Republic of Macedonia, and 3 judges from Montenegro, Prof. Sieber, T. 368.
195 - Sentencing Report, pp. 17-20.
196 - Prof. Sieber, T. 413.
197 - Sentencing Report, pp. 27, 29.
198 - Ibid., p. 27, citing Presidential Decree of 8 April 1992 on the state of war, Presidential Decree of 11 August 1992 on the application of traditional laws, and Law of 1 June 1994 on the Retroactive Confirmation of the later Presidential Decree. BiH was recognized by the United Nations as of 22 May 1992.
199 - Ibid., p. 35.
200 - Ibid., p. 35.
201 - Prof. Sieber, T. 373.
202 - Article 38 of the Federal Criminal Code of 1976/77; Sentencing Report, p. 30. In this context, the Trial Chamber wishes to emphasize that it does not share the view that a sentence of life imprisonment is the harsher sentence as capital punishment, cf. John R.W.D. Jones/Steven Powles, International Criminal Practice, 3rd ed., Oxford (2003), 9.119.
203 - Article 36 of the Criminal Code of BiH of 1977; Sentencing Report, pp. 32-33.
204 - Article 88; ibid.
205 - Article 42; ibid.
206 - Article 142 (war crime against the civilian population), Article 143 (war crime against the wounded and sick) and Article 144 (war crime against prisoners of war) of the Federal Criminal Code of 1976/77; Sentencing Report, p. 34.
207 - Article 38; ibid., p. 30.
208 - Article 42 of the OHR Criminal Code of 2003; Sentencing Report, p. 36.
209 - Article 172; ibid., p. 37.
210 - Article 173; ibid.
211 - Article 174; ibid.
212 - Article 175; ibid.
213 - Article 32 (2) of the RS Criminal Code of 2003; Sentencing Report, p. 42.
214 - Cf. Article 15 (1) of the ICCPR; Article 9 of the ACHR; Chapter 2 (2) (3) of the Swedish Criminal Code; Article 2 (3) of the German Criminal Code. The Trial Chamber notes that Article 7 (1) of the ECHR only provides explicitly that no heavier penalty shall be imposed than the one that was applicable at the time the criminal offence was committed.
215 - Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), S/25704, 3 May 1993, para. 106.
216 - BiH succeeded to the ICCPR on 1 September 1993.
217 - Article 9 of the ACHR has almost an identical wording.
218 - Emphasis in the quote of Article 4 (2) of the Federal Criminal Code of 1976/77 added. See also: Article 4 (2) of the OHR Criminal Code of 2003; Article 5 (2) of the FedBiH Criminal Code of 2003; Article 4 (2) of the RS Criminal Code of 2003; Sentencing Report, pp. 35-36, 38-39 and 42.
219 - Articles 5 (1) (2), 6 (1) (2) and 6 bis (1) (2) of the Swiss Criminal Code; Chapter 2 (2) (3) of the Swedish Criminal Code provides that Swedish courts must not impose a heavier punishment than the maximum penalty provided for the offence in the jurisdiction of the state in which the offence was committed.
220 - Article 9 (1) of the Statute provides that the Tribunal and national courts have concurrent jurisdiction to prosecute persons for the statutory crimes.
221 - Celebici Appeal Judgement, para. 816.
222 - For example, Country Report Greece, p. 3; Country Report Poland, p. 2; Country Report South Africa, p.2; Country Report Turkey, p. 2.
223 - Country Report Argentina, pp. 5, 11.
224 - Country Report Belgium, p. 17.
225 - Country Report Canada, p. 2.
226 - Country Report Germany, p. 2.
227 - Country Report England, pp. 8, 14.
228 - Country Report Finland, p. 2.
229 - Country Report Italy, pp. 9, 18.
230 - Country Report South Africa, p. 9.
231 - Country Report Austria, pp. 8, 14.
232 - Country Report Poland, p. 14.
233 - Country Report Sweden, pp. 10, 17.
234 - Country Report Chile, p. 15; Country Report France, p. 10.
235 - See already Stakic Trial Judgement, para. 932 (footnote 1660).
236 - Article 24 (1) of the Statute: see Second Optional Protocol to the ICCPR, aiming at the abolition of the death penalty of 15 December 1989 and already Protocol No. 6 to the ECHR, concerning the abolishing of the death penalty of 28 April 1983. Cf. Stakic Trial Judgement, para. 932.
237 - “The category of 'combined offences' includes the combination of […] three types of acts [murder, rape, torture] involving five to ten victims”, Sentencing Report, p. 58, footnote 41.
238 - Blaskic Trial Judgement, Kordic and Cerkez Trial Judgement, Stakic Trial Judgement, Kvocka et al. Trial Judgement, Vasiljevic Trial Judgement, Krstic Trial Judgement, Naletilic and Martinovic Trial Judgement.
239 - In the Krstic Trial Judgement the Trial Chamber stated that the Trial Chamber had a duty to decide on the appropriate punishment according to the facts of each case, and, “the Trial Chamber must assess the seriousness of the crimes in the light of their individual circumstances and consequences”, paras 700 and 701.
240 - Prosecution Closing Statement, T. 466.
241 - Prosecution Sentencing Brief, para. 38.
242 - Witness SU-032, T. 278; Habiba Hadzic, T. 229.
243 - Habiba Hadzic, T. 230.
244 - Witness SU-032, T. 286 and 283.
245 - Witness SU-202, T. 269.
246 - Habiba Hadzic, T. 230.
247 - Ibid., T. 248-249. According to Habiba Hadzic’s testimony, Mico Kraljevic had “his own specials from Rogosija”. They would occasionally go to Susica camp, roast a lamb or two and play loud music.
248 - Ibid., T. 260.
249 - Ibid., T. 231.
250 - Ibid., T. 229.
251 - Witness SU-032, T. 287.
252 - Ibid., T. 279.
253 - Habiba Hadzic, T. 251.
254 - Banovic Sentencing Judgement, para. 50
255 - Witness SU-032, T. 278.
256 - Ibid.
257 - Exh. P1, Witness SU-115, para. 4 (emphasis added).
258 - Ibid.
259 - Indictment, paras 24 and 26.
260 - Ibid., para. 34.
261 - Ibid., paras 8, 23, 27, 28, 31; Witness SU-202, T. 270.
262 - Witness SU-032, T. 283.
263 - Ibid., T. 278, 279.
264 - Habiba Hadzic, T. 234.
265 - Witness SU-202, T. 273-274.
266 - Witness SU-032, T. 279.
267 - Witness SU-202, T. 270. See infra para. 208.
268 - Witness SU-032, T. 279.
269 - Celebici Trial Judgement, para. 1264 (emphasis added).
270 - Ibid., para. 1268.
271 - Witness SU-032, T. 279-280: “Dragan Nikolic took girls and women out of the hangar. In the evening, he would take girls out, and they would return in the morning, dishevelled, sad. They were not allowed to speak to the rest of us.[…] But eventually each of them would confide in her sister or mother and tell them what had happened to them the previous night.[…] You can imagine what happened to them. They were removed against their own will, and they were unable to resist. They could not defend themselves, and they had to do what they were told and ordered to do. They were forced to – and I don’t know how to put it – to have intercourse with strangers or sometimes men they even knew. They had to do every single thing they were told to do”; Witness SU-202, T. 273
272 - Witness SU-032, T. 280-281.
273 - Ibid., T. 281.
274 - Ibid., T. 246.
275 - Habiba Hadzic, T. 237-238.
276 - See supra subsection V. A. 2. (d) (i)
277 - Habiba Hadzic, T. 236-237; see supra para. 105.
278 - Witness SU-032, T. 278.
279 - Habiba Hadzic referred to Fikret Arnaut (see supra subsection V. A. 2. (d) (i)), and Fadil Huremovic, who died “because his wife was abused and he was no longer able to suffer that; he just couldn’t get up”, T. 234-235.
280 - Ibid., T. 233; see supra para. 105.
281 - Ibid., T. 232 and T. 246; Witness SU-202, T. 267 and T. 273; Witness SU-032, T. 278.
282 - Habiba Hadzic, T. 232.
283 - Ibid., T. 246.
284 - Ibid., T. 233.
285 - Ibid., T. 233-234.
286 - Krnojelac Trial Judgement, para. 512: “Consideration of the consequences of a crime upon the victim who is directly injured by it is, however, always relevant to the sentencing of the offender. Where such consequences are part of the definition of the offence, they may not be considered as an aggravating circumstance in imposing sentence, but the extent of the long-term physical, psychological and emotional suffering of the immediate victims is relevant to the gravity of the offences.” (emphasis is in the original).
287 - Exh. P1, Witness SU-115, para. 9.
288 - Habiba Hadzic, T. 239.
289 - Exh. P1, Witness SU-115, para. 11, quoted as it reads in the English version of Exh. P1; see supra para. 205.
290 - Exh. P1, Witness SU-230, paras 6 and 12, quoted as it reads in the English version of Exh. P1.
291 - Witness SU-032, T. 282, T. 278.
292 - Habiba Hadzic, T. 247.
293 - Exh. P6, Expert Statement of Maria Zepter, p. 3.
294 - See Ibid.
295 - Habiba Hadzic, T. 252-253.
296 - Witness SU-202, T. 269-270.
297 - Witness SU-032, T. 279.
298 - Grosselfinger Report, p. 11.
299 - Witness SU-202. T. 268.
300 - Ibid., T. 268-269.
301 - Prosecution Sentencing Brief, para. 58.
302 - Defence Sentencing Brief, para. 2 (b), p. 2.
303 - Ibid., para. 5 (i), p. 12.
304 - Prosecution Sentencing Brief, para. 59.
305 - Prosecution Closing Statement, T. 473.
306 - Ibid., T. 474.
307 - Prosecution Sentencing Brief, para. 59 and footnote 35.
308 - Ibid., para. 59.
309 - Prosecution Closing Statement, T. 475.
310 - Defence Sentencing Brief, para. 5 (ii), p. 12
311 - With reference to the sentencing law in England, Defence argues that “the usual reduction is one third of the sentence that would otherwise be passed following conviction after trial”. Ibid., para. 5 (iii), p. 12.
312 - Ibid., para. 5 (iii), pp. 12-15.
313 - Ibid., para. 5 (iv), p. 15.
314 - Defence Closing Statement, T. 485-486.
315 - Ibid., T. 497.
316 - Ibid., T. 486.
317 - Defence Sentencing Brief, para. 2 (c), p. 2.
318 - Defence Closing Statement, T. 486.
319 - Ibid.; The Defence’s argument is that “hopes for individual rehabilitation are infinitely higher when someone has freely admitted culpability and shows remorse” as opposed to the situation of a defendant “being convicted without showing any sign of responsibility or contrition”. Defence Sentencing Brief, para. 3 (d), p. 8.
320 - The following observations were presented: 1) a very large passage of time was taken up with the essential consideration of the question of male captus; 2) about 12 months ago it became obvious already that there was likely to be a plea of guilty; 3) the delay in reaching the plea agreement did not lie at the foot of the defendant, as was conceded by Michael Johnson, the Chief of Prosecutions; 4) the fact that the Accused pleaded guilty when the deposition witnesses were here is not due to his fault or intention; he had no control over the timing of those depositions. Defence Closing Statement, T. 487.
321 - A Plea Bargain is the process when “a person […] confronted with a multitude of charges […] offers pleas to a certain number of those charges in spite of the fact that there is perfectly good evidence in respect of all of the charges, but in order to avoid a trial, the costs and difficulties of a trial, the Prosecution accept(s( that partial plea and […] a sentence agreed upon.”, Ibid., T. 487-488.
322 - Ibid., T. 488.
323 - Defence Sentencing Brief, para. 3 (d), p. 8.
324 - See supra paras 38 and 43.
325 - Assuming the facts were not so horrific as to demand the maximum punishment. The sentence may be reduced as a result of a plea bargain, i.e. when the accused is convicted of a lesser charge than murder. Country Report Canada, pp. 4-5.
326 - The Procedure, which functionally resembles a guilty plea, is called a voluntary surrender and applies only for minor offenses. It means that a perpetrator after having committed an offense voluntarily tells the truth about his own offense and therefore helps the judicial organs to find the truth about the offense. Prior to 1997 the punishment varied only within the originally regulated range of sentences for this offense, e.g. within the lowest third of that range. Country Report China, pp. 3-4.
327 - Country Report England, p. 4. In Australia, up to 35% in Western Australia and between 10-25% in New South Wales. Country Report Australia, p. 4.
328 - A plea bargain became available only under the new Polish Criminal Code. Country Report Poland, p. 4.
329 - Country Report Russia, p. 3.
330 - Sentencing Guidelines 1997 Federal Sentencing Guideline Manual, Chapter 3, Part E, p. 280; see also Country Report U.S.A.: The judge may impose a sentence more or less severe than the guideline range, i.e. “depart” from the guideline sentencing range. A departure is justified by existence of an aggravating or mitigating circumstance which is not adequately taken into consideration in the guidelines. p. 5.
331 - See also Country Report Australia, p. 6; Country Report Canada, p. 4; Country Report England, p. 9.
332 - Country Report Australia, p. 4.
333 - Country Report Canada, p. 5.
334 - Country Report Australia, p. 4; Country Report England, p. 4.
335 - Country Report England, p. 4.
336 - If there is an agreement between the prosecutor and the accused with regard to offences with a sentence inferior to six years and by which the suspect/accused recognizes the existence of the conduct and his/her participation in it, the sentence finally imposed by the Tribunal must not exceed the one demanded by the Prosecutor (and accepted by the accused). Country Report Argentina, p. 3.
337 - The procedure similar to plea bargain is called a criminal transaction, which was introduced in 1995. It is admitted, however, only in less serious offenses, in which the maximum possible imprisonment does not exceed two years. Country Report Brazil, p. 3.
338 - The newly introduced (on 12 October 2000) procedure of procedimiento abreviado (abbreviated trial) has a system with bargaining elements. The defendant agrees to have his case put on trial under the abbreviated procedure and accepts the facts as established in the indictment. In the event that his guilt is established through this procedure he receives a sentence fixed previously by the public prosecutor. Nevertheless this procedure is limited only to those cases where the previously fixed final sentence is below 5 years; therefore this procedure only applies to cases where the minimum sentencing range is lower than 5 years. Country Report Chile, p. 4.
339 - The procedure of so-called “patteggiamento” involves a defendant and a public prosecutor applying to the judge for a sentence which they agree upon amongst themselves. A sentence reduced by up to one-third, may be imposed if this sentence does not exceed five year’s imprisonment. Country Report Italy, p. 5; Cf. Italian Code of Penal Procedure, Article 444 as amended by the Law of 12 June 2003, No 134.
340 - BGH, BGHSt 43, p. 195 (198).
341 - Life imprisonment will be commuted to fixed-term imprisonment. Country Report Belgium, pp. 3-4.
342 - Since 2002 the substantive collaboration of the accused to the clarification of the facts is now a specific mitigating factor. Country Report Chile, p. 3.
343 - Country Report Finland, p. 3.
344 - Mitigation for confession is not applied if a mandatory sentence of life imprisonment is provided. Country Report Germany, pp. 2-3 and 5.
345 - Country Report Spain, p. 3.
346 - The fact of a voluntary surrender may lead to a less severe sentence than the sentence set out for that offence. Country Report Sweden, p. 5.
347 - Country Report Greece, pp. 6-7.
348 - Plavsic Sentencing Judgement, para. 70.
349 - Ruggiu Judgement and Sentence, para. 55. See also Jelisic Trial Judgement, para. 127: “[A]lthough the Trial Chamber considered the accused’s guilty plea out of principle, it must point out that the accused demonstrated no remorse before it for the crimes he committed.”
350 - Plavsic Sentencing Judgement, para. 70; Obrenovic Sentencing Judgement, para. 111.
351 - Momir Nikolic Sentencing Judgement, para. 149.
352 - Erdemovic 1998 Sentencing Judgement, para. 16.
353 - Momir Nikolic Sentencing Judgement, para. 150; Todorovic Sentencing Judgement, para. 80.
354 - Erdemovic 1998 Sentencing Judgement, para. 16; Todorovic Sentencing Judgement, para. 81.
355 - Sikirica et al. Sentencing Judgement, para. 150. In the Simic Sentencing Judgement, “some credit” was given for the guilty plea despite its lateness, paras 87.
356 - See infra subsection VIII. B. 1. (b) (i)
357 - Security Council Resolution 827 (1993), S/3217, 25 May 1993.
358 - Dr. Grosselfinger, T. 345, Jovo Delic, T. 309 and Ljiljana Rikanovic, T. 325.
359 - The Trial Chamber notes that three Prosecution victim witnesses who came to testify during the sentencing hearing were at a high level of emotional discharge and suffering.
360 - Statement by the Accused, T. 500.
361 - Dr. Grosselfinger, T. 341.
362 - Ibid., T. 342.
363 - Ibid., T. 439; Grosselfinger Report reads: “He provided further detail of his knowledge of the individuals, the nature of their acquaintanceship and any possible previous animosity between them. There were virtually no antecedent conflicts.”, Executive Summary, p. A.
364 - Dr. Grosselfinger, T. 439.
365 - Prosecution Sentencing Brief, para. 62.
366 - Ibid.
367 - Prosecution Closing Statement, T. 473.
368 - Defence Sentencing Brief, para. 5 (v), p. 15.
369 - Ibid., para. 5 (vi), p. 16.
370 - Defence Closing Statement, T. 486.
371 - Ibid., T. 490.
372 - Ibid., T. 489-490.
373 - Statement by the Accused, T. 501.
374 - Prosecution Closing Statement, T. 480.
375 - Defence Closing Statement, T. 486.
376 - Ibid., T. 484.
377 - “There is no penalty, no punishment bad enough to make up for the death of a single child, for the rape of a single girl, let alone all the things that actually happened.” Witness SU-032, T. 285.
378 - Exh. P2, Witness SU-230, para. 17.
379 - According to the Accused on 30 September 1992 a group of about 40 people was taken to Debelo Brdo and was liquidated there. Among this group were two sons of Habiba Hadzic. Sentencing Hearing, T. 257; see supra para. 105.
380 - Ibid., T. 256-257.
381 - Statement by the Accused, T. 502.
382 - Ibid.
383 - Dr. Grosselfinger, T. 342-343.
384 - Ibid., T. 345.
385 - Ibid., T. 440.
386 - Prosecution Sentencing Brief, para. 61.
387 - Ibid.
388 - Exh. P7.
389 - Prosecution Closing Statement, T. 475.
390 - Ibid., T. 476.
391 - Defence Sentencing Brief, para. 5 (vi), p. 16.
392 - Ibid., para. 7 (ii), p. 23.
393 - Sentencing Hearing, T. 453-454.
394 - Ibid., T. 481. The Defence had no objections.
395 - See also para. 105.
396 - Prosecution Sentencing Brief, para. 64.
397 - Ibid.
398 - Ibid., para. 63.
399 - Prosecution Closing Statement, T. 473.
400 - Defence Closing Statement, T. 484.
401 - Ibid., T. 485.
402 - Ibid., T. 492.
403 - Exh. D2, para. 3; Exh. D3, p. 1; Jovo Delic, T. 302.
404 - Exh. D3, p. 1.
405 - The mother of the Accused, Milica Nikolic, writes in her statement: “We shared the same household where he was of a great help to me. He also helped me financially […]. […] I am all alone now and my greatest wish would be if my Dragan were released and came home. I only wish to see him again and then to die in peace. I am living for that day and what still keeps me up in life is the belief in and the hope for justice and truth in the proving of innocence of my son.”, Exh. D1, pp.1-2.
406 - Sentencing Hearing, T. 335.
407 - Witness Habiba Hadzic, T. 251-252.
408 - Ibid., T. 253.
409 - Ibid., T. 232-233 and T. 250.
410 - Grosselfinger Report, p. 9.
411 - ECHR in Frydlender v. France, Application No. 30979/96, § 43, ECHR 2000-VII, Vass v. Hungary, Application No. 57966/00 of 25 November 2003; U.S. Supreme Court in Baker v. Wingo, 407 U.S. 514 (1972); BGH, NStZ, 1986, pp. 217-218.
412 - U.S. Supreme Court in Doggett v. United States (90-0857), 505 U.S. 647 (1992); ECHR in Ferrantelli and Santangelo v. Italy, Application No. 19874/92 of 7 August 1996; BVerfG, BVerfGE 63, 45 (69); BGH, StV, 1992, p. 452.
413 - BVerfG, 2 BvR 153/03, Decision of 25 July 2003, para. 33 in: http://www.bverfg.de
414 - Jovo Delic, T. 305-306.
415 - See supra para. 10.
416 - See supra subsection III. A. 2.
417 - BGH, 1 StR 538/01, Judgement of 21 February 2002, II, 4 b, p. 13 in: http://www.bundesgerichtshof.de
418 - Prosecution Sentencing Brief, para. 75; Annex A – Plea Agreement, para. 12 (1).
419 - Annex A – Plea Agreement, para. 13.
420 - See supra subsection VIII. B. 4.
421 - Prosecution Closing Statement, T. 480.
422 - Ibid., T. 476.
423 - Defence Sentencing Brief, para. 7 (iv), p. 24.
424 - Ibid., para. 7 (v), p. 25.
425 - Defence Addendum to the Defence Sentencing Brief, 19 November 2003, para. 5.
426 - Recalling Rule 62 ter (B) that reads as follows: “The Trial Chamber shall not be bound by any agreement specified in paragraph (A)”. Plea Hearing, T. 175.
427 - Ibid.
428 - BVerfGE 45, 187 (245).