Case No. IT-94-2-S

Before:
Judge Wolfgang Schomburg, Presiding
Judge Carmel A. Agius
Judge Florence Ndepele Mwachande Mumba

Registrar:
Mr. Hans Holthuis

Judgement of:
18 December 2003

The Office of the Prosecutor:

Mr. Upawansa Yapa
Ms. Patricia Sellers-Viseur
Mr. Bill Smith

Counsel for the Accused:

Mr. Howard Morrison
Ms. Tanja Radosavljevic

1. The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991 (“Tribunal”) was created by United Nations Security Council Resolution 827 (1993) under Chapter VII of the Charter of the United Nations. Article 39 of Chapter VII reads as follows:

   “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security”.¹

2. Dragan Nikolic was the first person indicted by this Tribunal on 4 November 1994. This case deals with his individual responsibility for particularly brutal crimes committed in the Susica detention camp near the town of Vlasenica in the Municipality of the same name. Dragan Nikolic was a commander in this camp established by Serb forces in June 1992.

3. In confessing his guilt and admitting all factual details contained in the Third Amended Indictment in open court on 4 September 2003 Dragan Nikolic has helped further a process of reconciliation. He has guided the international community closer to the truth in an area not yet subject of any judgement rendered by this Tribunal, truth being one prerequisite for peace.

4. It is now for this Trial Chamber to balance the extreme gravity of the crimes for which the Accused accepted full responsibility against this contribution to peace and security. In doing so, it is for this Trial Chamber to come as close as possible to justice for both victims and their relatives and the Accused, justice being of paramount importance for the restoration and maintenance of peace.
   
   II. THE ACCUSED

5. The Accused, Dragan Nikolic, also known as “Jenki”, was born on 26 April 1957 in the municipality of Vlasenica, today part of the “Republika Srpska” entity of Bosnia and Herzegovina. He is the eldest son of Spasoje and Milica Nikolic² and comes from a modest rural background.³ A brother, Milan, was born in 1959 and a sister, Milojka, in 1961. Growing up, Dragan Nikolic had a very close relationship with his brother. The strong bond forged between the brothers carried through into their adulthood.⁴

6. Raised in the town of Vlasenica in Bosnia and Herzegovina (hereinafter “BiH ”), the Accused finished secondary school in 1978 when he was 21 years old. His mandatory military service ended early due to the sudden death of his father in 1981. Dragan Nikolic was then 23 and as such had become the head of the family. He was, for a period, gainfully employed in a furniture store until it went out of business. In 1986, the Accused was able to secure employment in the Alpro aluminium factory in Vlasenica, where he worked from 16 June 1986 until 20 April 1992.⁵ The Accused served in the military from 1992-1995 and has been unemployed since 1995.⁶

7. Dragan Nikolic has never been married and he has no children. He is of Serbian ethnicity and belongs to the Orthodox faith, although by his own assessment, religion as such has played little role in his life. It appears that, prior to the events of 1992, he was well liked by his friends and work colleagues in Vlasenica, irrespective of their ethnicity. He still enjoys the strong support of his family. Living later in Serbia, the Accused was financially supported by his brother Milan until the latter is reported to have committed suicide in February of 1997 or 1998.⁷ Dragan Nikolic appears to have led an unremarkable life before the events occurred with which this Sentencing Judgement is concerned. Prior to 1992 the Accused had no criminal record.⁸
   III. PROCEDURAL HISTORY
   A. Overview of the Proceedings

8. The initial indictment against Dragan Nikolic, confirmed on 4 November 1994, contained counts of Grave Breaches of the Geneva Conventions, Crimes Against Humanity and Violations of the Laws or Customs of War.⁹ That same day, two arrest warrants were issued, one addressed to the then Bosnian Serb administration in Pale,¹⁰ and the other addressed to the Republic of Bosnia and Herzegovina,¹¹ in accordance with Rules 2(A) and 55 of the Rules of Procedure and Evidence (hereinafter “Rules”).¹²

9. Following the failure to effect service of the indictment and execute the subsequent arrest warrants,¹³ proceedings pursuant to Rule 61 of the Rules were initiated on 16 May 1995.¹⁴ The Trial Chamber heard 15 viva voce witnesses in public hearings from 9 to 13 October 1995, which testimonies, however, do not form the part of the evidence used for the purposes of this Judgement.¹⁵

10. Consequently, on 20 October 1995, the Trial Chamber issued its decision on the Rule 61 proceedings, determining that there were reasonable grounds for believing that Dragan Nikolic had committed all the crimes in the then indictment.¹⁶ In addition, the Trial Chamber stated that the failure to effect service of the indictment and to execute the arrest warrant was due to the failure or refusal of the then Bosnian Serb administration in Pale to co-operate.¹⁷ Therefore, the Trial Chamber asked the President of the Tribunal to notify the Security Council of the United Nations accordingly.¹⁸ In a letter dated 31 October 1995, the President of the Tribunal brought the matter to the attention of the Security Council.¹⁹ Pursuant to Rule 61 (D) of the Rules, the Trial Chamber issued an international arrest warrant for Dragan Nikolic to be transmitted to all States.²⁰ The Accused was finally apprehended by the Multinational Stabilisation Force (hereinafter “SFOR”) on or about 20 April 2000 in BiH.²¹

11. Immediately after his arrest Dragan Nikolic was transferred to the Tribunal on 21 April 2000. On 26 April 2000 by the order of the President of the Tribunal, the case was assigned to Trial Chamber II.²² The Accused’s initial appearance was held on 28 April 2000, when he entered a plea of not guilty to all 80 counts of the First Amended Indictment of 12 February 1999.²³ Following the elections of new Judges in 2001, the composition of Trial Chamber II was changed and the case was assigned to this bench on 23 November 2001.²⁴

12. Two issues, which in the Trial Chamber’s view are of particular importance in the pre-trial proceedings of this case, are addressed in more detail below. The first is the development of the indictment against the Accused, and the second is the question of the Tribunal’s jurisdiction based on the alleged illegality of the arrest of the Accused.
    1. Indictment Related Issues

13. The original indictment of 4 November 1994 has been amended three times, the latest version being the Third Amended Indictment of 31 October 2003 (hereinafter “Indictment”).²⁵

14. The first amendment to the indictment of 4 November 1994 was sought by the Office of the Prosecutor (hereinafter “Prosecution”) following an invitation from the Trial Chamber to amend in light of the evidence presented at proceedings held under Rule 61 of the Rules.²⁶ On 12 February 1999, the Trial Chamber confirmed the First Amended Indictment which contained 29 counts of Crimes Against Humanity, 29 counts of Grave Breaches of the Geneva Conventions and 22 counts of Violations of the Laws or Customs of War.²⁷

15. As a result of the suggestions made by the pre-trial Judge in 2001, the Prosecution filed a Motion for leave to amend the First Amended Indictment on 7 January 2002, in order to:

    remove charges based on Article 2 and 3 of the Statute on the basis of judicial economy;

    remove charges solely based upon Article 7 (3) of the Statute;

    reduce the number of counts from eighty to eight, by regrouping the charges of persecution and inhumane conditions;

    confine the alleged scope of the Accused’s individual criminal responsibility to Article 7 (1) of the Statute;

    add three new charges, arising out of conduct previously alleged.

16. On 15 February 2002, the Trial Chamber granted leave to file the Second Amended Indictment, to which the Accused entered a plea of not guilty on 18 March 2002.²⁸

17. On 15 May 2003, the Prosecution pursuant to Rule 65 ter (E) (i) of the Rules filed Annex B “Admitted, Undisputed and Contested Facts” to its Pre-Trial Brief, which it had filed previously, on 20 January 2003.²⁹

18. On 25 June 2003, the Third Amended Indictment, which arose out of the first discussion between the Parties of a possible plea agreement, was submitted by the Prosecution. The amendments only rearranged the legal assessment, thus without any changes to the factual basis.³⁰

19. The Third Amended Indictment was accepted by the Trial Chamber at the status conference held on 27 June 2003.³¹ The Accused again pleaded not guilty to all counts³² and the Parties agreed that trial hearings would commence in September 2003. It was expected that the trial would last for about eight or nine weeks only.³³

20. During the hearing of 4 September 2003 (hereinafter “Plea Hearing”) the Third Amended Indictment underwent some formal clarifications,³⁴ which were accepted by the Trial Chamber.³⁵
    2. The Arrest / Jurisdiction of the Tribunal

21. For a considerable period of time during the pre-trial proceedings, the Trial Chamber had to deal with jurisdictional matters.

22. On 17 May 2001, the defence for Dragan Nikolic (hereinafter “Defence”) filed a motion challenging the jurisdiction of the Tribunal pursuant to Rule 72 (A) (i ) of the Rules mainly based upon the allegedly illegal arrest of the Accused. The Defence submitted that the allegedly illegal arrest of the Accused by unknown individuals on the territory of what was at that time the Federal Republic of Yugoslavia (hereinafter “FRY”) should be attributable to SFOR and the Prosecution, thereby, according to the Defence, barring the Tribunal from exercising its jurisdiction over the Accused.³⁶ SFOR had arrested him on the territory of BiH after he had been handed over by these unknown individuals. The Defence further submitted that, irrespective of whether or not this was attributable to the Prosecution, the illegal character of the arrest should in and of itself bar the Tribunal from exercising jurisdiction, by not applying the disputed maxim “male captus, bene detentus”.³⁷

    (a) Trial Chamber Decision

23. On 9 October 2002, the Trial Chamber dismissed this Defence motion. The Trial Chamber considered two main issues. First, the Trial Chamber decided on whether the conduct of the unknown individuals was attributable to SFOR. Second, the Trial Chamber decided on whether the rendition of the Accused to the Tribunal violated the principle of State sovereignty and/or international human rights and/or the rule of law.³⁸

    (i) Attribution to SFOR

24. The Trial Chamber stated that it had not been suggested that SFOR had “instructed, directed or controlled” the conduct of the unknown individuals, and concluded “that there was no collusion or official involvement by SFOR in the alleged illegal acts”.³⁹ With regard to the question whether SFOR “‘acknowledged and adopted’ the conduct of the unknown individuals ‘as its own’”, the Trial Chamber held that SFOR had the authority to detain the Accused once he had “‘come into contact with’ SFOR”. The Trial Chamber also held that SFOR was, “in accordance with their mandate and in light of Article 29 of the Statute and Rule 59 bis of the Rules, obliged to inform the Prosecution and to hand [the Accused] over to its representatives”.⁴⁰

    (ii) Violation of State sovereignty

25. After having conducted a survey of the application of the maxim male captus, bene detentus in various national legal jurisdictions, the Trial Chamber stressed that the “core elements of this maxim were developed in the context of horizontal relationships between sovereign and equal states”, and not “in the […] vertical […] context in which the Tribunal operates in relation to States”.⁴¹ The Trial Chamber stated that the following factors must be taken into account when considering whether there had been a violation of State sovereignty:

    “the role the executive authorities of the forum State played in the transfer of the accused, the nationality of the accused, the role of the injured State itself and any treaty obligations that may exist between the injured State and the forum State, especially as to extradition.”⁴²

26. The Trial Chamber decided that there was no violation of State sovereignty in the current case and based its decision on three grounds: First, the Trial Chamber held that in the vertical relationship between the Tribunal and States, “sovereignty by definition cannot play the same role” as in the horizontal relationship between States.⁴³ Second, the Trial Chamber recalled that neither SFOR nor the Prosecution were at any time prior to Dragan Nikolic’s crossing the border between the FRY and BiH involved in this transfer.⁴⁴ Third, the Trial Chamber found that, in contrast to various cases involving horizontal relationships between States, “in the present case, no issue arises as to possible circumvention of other available means for bringing the Accused into the jurisdiction of the Tribunal”, as “States are obliged to surrender indicted persons in compliance with any arrest warrant”.⁴⁵ The Trial Chamber held that even if a violation of State sovereignty had occurred, the FRY would have been obliged, under Article 29 of the Statute, to immediately re-surrender the Accused after his return to the FRY. The Trial Chamber recalled the maxim “ dolo facit qui petit quod (statim( redditurus est”⁴⁶.

    (iii) Violation of human rights and due process of law

27. The Trial Chamber re-emphasised that “there exists a close relationship between the obligation of the Tribunal to respect the human rights of the Accused and the obligation to ensure due process of law.”⁴⁷ It ruled that the issue of respect for due process encompasses more than the Trial Chamber’s duty to ensure that the Accused receives a fair trial.⁴⁸ The Trial Chamber added that:

    the abuse of process doctrine may be relied upon if “in the circumstances of a particular case, proceeding with the trial of the accused would contravene the court’s sense of justice”. However, in order to prompt a Chamber to use this doctrine, it needs to be clear that the rights of the Accused have been egregiously violated.⁴⁹ [I]n a situation where an accused is very seriously mistreated, maybe even subjected to inhuman, cruel or degrading treatment, or torture, before being handed over to the Tribunal, this may constitute a legal impediment to the exercise of jurisdiction over such an accused.”⁵⁰

28. The Trial Chamber held that in the case before it, the facts assumed by the Parties “do not at all show that the treatment of the Accused by the unknown individuals […] was of such an egregious nature”.⁵¹ The Trial Chamber therefore held that none of the human rights of the Accused were violated and that proceeding with the case would not violate the fundamental principle of due process of the law.⁵²

29. The Defence filed an interlocutory appeal against this decision on 24 January 2003, following certification of the appeal by the Trial Chamber on 17 January 2003 pursuant to Rule 73 (C) of the Rules.⁵³

    (b) Appeals Chamber Decision

30. The Appeals Chamber dismissed the interlocutory appeal in its decision of 5 June 2003. First, the Appeals Chamber held that, even if the conduct of the unknown individuals could be attributed to SFOR, thus making SFOR responsible for a violation of State sovereignty, there was no basis upon which the Tribunal should not exercise its jurisdiction in the present case.⁵⁴ The Appeals Chamber weighed the “legitimate expectation that those accused of [universally condemned offences] will be brought to justice […] against the principle of State sovereignty and the fundamental human rights of the accused”⁵⁵ and stated that

    the damage caused to international justice by not apprehending fugitives accused of serious violations of international humanitarian law is comparatively higher than the injury, if any, caused to the sovereignty of a State by a limited intrusion in its territory, particularly when the intrusion occurs in default of the State’s cooperation. Therefore, the Appeals Chamber does not consider that in cases of universally condemned offences, jurisdiction should be set aside on the ground that there was a violation of the sovereignty of a State, when the violation is brought about by the apprehension of fugitives from international justice, whatever the consequences for the international responsibility of the State or organisation involved. [In this case] the State whose sovereignty has allegedly been breached [Serbia and Montenegro] has not lodged any complaint and thus has acquiesced in the International Tribunal’s exercise of jurisdiction. A fortiori, […] the exercise of jurisdiction should not be declined in cases of abductions carried out by private individuals whose actions […] do not necessarily in themselves violate State sovereignty.⁵⁶

31. Second, the Appeals Chamber defined the circumstances in which a human rights violation could vitiate the exercise of jurisdiction:

    [C]ertain human rights violations are of such a serious nature that they require that the exercise of jurisdiction be declined. […] Apart from such exceptional cases, however, the remedy of setting aside jurisdiction will, in the Appeals Chamber’s view, usually be disproportionate. The correct balance must therefore be maintained between the fundamental rights of the Accused and the essential interests of the international community in the prosecution of persons charged with serious violations of international humanitarian law.⁵⁷

32. The Appeals Chamber concurred with the Trial Chamber’s evaluation on the gravity of the alleged violation of the Accused’s human rights:

    [T]he evidence [presented] does not satisfy the Appeals Chamber that the rights of the Accused were egregiously violated in the process of his arrest. Therefore, the procedure adopted for his arrest did not disable the Trial Chamber from exercising its jurisdiction.⁵⁸

    B. Plea Agreement

33. On 28 August 2003 the Trial Chamber ordered that depositions, pursuant to Rule 71 of the Rules, should be taken during the week of 1-5 September 2003 and that a pre-trial conference should be held on 16 September 2003,⁵⁹ to be immediately followed by the commencement of the trial hearings.

34. On 1 September 2003, the first date scheduled for depositions in this case, in preparation for which witnesses had already arrived in The Hague, the Prosecution and Defence filed a joint motion requesting the Trial Chamber to postpone the deposition hearing “due to developments in the case” and “in the interest of all parties”.⁶⁰ Subsequently, on 2 September 2003, the Trial Chamber scheduled a status conference to be held on 4 September 2003.⁶¹

35. On 2 September 2003 the Prosecution and Defence filed a Confidential Joint Plea Agreement Submission (hereinafter “Plea Agreement”), which was accepted by the Trial Chamber at the Plea Hearing of 4 September 2003.⁶² The factual basis of the Plea Agreement was the one contained in the Indictment. However, following the suggestion of the Presiding Judge, the Prosecution sought during the hearing to introduce the following clarifications to the Indictment:

    In paragraph 2 “planning, instigating, ordering, committing or otherwise aiding and abetting in the planning, preparation or execution of all crimes charged in this indictment” was re-worded as “committing the crimes charged in counts 1, 2 and 4, and for aiding and abetting the execution of crimes charged in count 3”;

    Paragraphs 7, 19, 22, 35 added reference to Article 7(1) of the Statute of the Tribunal.⁶³

36. The Trial Chamber orally accepted and confirmed the Indictment and stressed that “it is not intended to change any factual or legal basis” and that the changes are made merely “for purposes of clarification”.⁶⁴ Dragan Nikolic pleaded guilty to Count 1 through 4 of the Indictment and the Trial Chamber entered a finding of his guilt.⁶⁵

37. On 11 September 2003 the Trial Chamber issued an order for sentencing briefs to be filed by 20 October 2003 and sentencing hearings to be held from 3 to 7 November 2003.⁶⁶
    C. Expert Reports

38. On 25 September 2003 the Trial Chamber proprio motu issued an order pursuant to Rules 54, 90 (C), 94 bis, 98, second sentence, and 100 of the Rules requesting Prof. Dr. Ulrich Sieber, Director of the “Max-Planck-Institut für ausländisches und internationales Strafrecht” in Freiburg, Germany (hereinafter “Max Planck Institute”) to submit an expert report (hereinafter “Sentencing Report ”) providing information on “the range of sentences for the crimes, as laid down in the Indictment to which the Accused has pleaded guilty, applicable in (i) States on the territory of the former Yugoslavia, (ii) member States of the Council of Europe and (iii) other major legal systems; and the sentencing practice in relation to these crimes developed by (i) State courts in States on the territory of the former Yugoslavia, (ii) International or mixed courts and (iii) if available, the sentencing practice developed by other States mentioned above.”⁶⁷

39. On 2 October 2003 the Trial Chamber proprio motu issued an order pursuant to Rules 54, 90 (C), 94 bis, 98, second sentence, and 100 of the Rules, requesting the Registrar to appoint an expert to submit a report on the Accused’s socialisation providing details on, inter alia, the Accused’s childhood, the conditions under which he grew up, his school and work career and relations with friends and family. The Registrar appointed Dr. Nancy Grosselfinger who submitted her report on 20 October 2003 (hereinafter “Grosselfinger Report”).
    D. Sentencing Hearing

40. The Sentencing Hearing designed to provide the Trial Chamber with “any relevant information that may assist in determining an appropriate sentence” pursuant to Rule 100 (A) of the Rules commenced on 3 November 2003 and concluded on 6 November 2003.

41. The Prosecution called three witnesses to testify, all of whom had been detained in Susica camp during the time of the Accused’s criminal conduct. Written statements of two other victims were admitted into evidence as Prosecution exhibits.⁶⁸ In addition, the report of the Prosecution’s expert psychologist, Dr. Maria Zepter, was admitted into evidence under Rule 94 bis of the Rules.⁶⁹ The common goal of this evidence was to describe the closer circumstances and the environment in which the crimes were committed and the impact these crimes had on surviving victims and their relatives.

42. The Defence called two witnesses; Jovo Delic, a brother-in-law of the Accused (also working as a Defence investigator), who testified on the character of the Accused prior to his criminal conduct in Susica camp and his emotional state of mind in the United Nations Detention Unit (hereinafter “UNDU”) before and after his guilty plea.⁷⁰ Ljiljana Rikanovic, a cousin of the Accused and his present day confidant, testified as to the Accused’s attitude and demeanour in the light of his post-crime conduct and his conduct after having pleaded guilty.⁷¹ Additionally, the Trial Chamber admitted into evidence written statements of three Defence witnesses, the Accused’s mother Milica Nikolic, Fikret Zukic, and Milenko Majstorovic.⁷² All three addressed the pre and post war character and behaviour of the Accused.

43. Prof. Sieber testified as an expert witness on the basis of his Sentencing Report on 5 November.⁷³ During his testimony, it was agreed that a new consolidated version of the Sentencing Report would be submitted.⁷⁴ This final version of the Sentencing Report, incorporating details from the oral presentation, was filed on 12 November 2003.⁷⁵ Based on the comprehensive nature of the Sentencing Report and the recent updates thereto, the Trial Chamber granted the Parties an extension of time, until 24 November 2003, in which to file written submissions on the Report.⁷⁶ Only the Defence filed a supplementary submission on the Report on 19 November 2003.⁷⁷ Dr. Nancy Grosselfinger gave her oral testimony on 4 and 6 November 2003, primarily based on her written expert report of 20 October 2003.⁷⁸

44. During the hearing, confidential Annex C to the Prosecution Sentencing Brief, which dealt with the question of the Accused’s substantial co-operation with the Prosecution, was addressed in private session.⁷⁹ Upon the agreement of the Parties, the confidentiality of Annex C paragraph 5 was lifted and admitted into evidence.⁸⁰

45. The Accused was given the final word.⁸¹ He made a statement expressing remorse and he accepted responsibility for his crimes.⁸²
    IV. GUILTY PLEA AND PLEA AGREEMENT

46. Article 20, paragraph 3 of the Statute states:

    The Trial Chamber shall read the indictment, satisfy itself that the rights of the accused are respected, confirm that the accused understands the indictment, and instruct the accused to enter a plea. The Trial Chamber shall then set the date for trial.

47. If the Tribunal accepts a guilty plea, the Rules provide guidelines to ensure that this guilty plea is a voluntary and informed one. The Rules provide as follows :

    Rule 62 bis
    Guilty Pleas

    If an accused pleads guilty in accordance with Rule 62 (vi), or requests to change his or her plea to guilty and the Trial Chamber is satisfied that:

    (i) the guilty plea has been made voluntarily;
    (ii) the guilty plea is informed;
    (iii) the guilty plea is not equivocal; and
    (iv) there is a sufficient factual basis for the crime and the accused’s participation in it, either on the basis of independent indicia or on lack of any material disagreement between the parties about the facts of the case,

    the Trial Chamber may enter a finding of guilt and instruct the Registrar to set a date for the sentencing hearing.

48. Having accepted a guilty plea on the basis of a plea agreement, a Trial Chamber operating in a party-driven system such as the ICTY is thereafter limited to what is specifically contained in, or annexed to, the plea agreement. Simply put, the Trial Chamber cannot go beyond what is contained in a plea agreement with regard to the facts of the case and the legal assessment of these facts. However, the Trial Chamber is not bound by a sentence recommendation contained in a plea agreement. The Rule governing the plea agreement procedure states:

    Rule 62 ter
    Plea Agreement Procedure

    (A) The Prosecutor and the defence may agree that, upon the accused entering a plea of guilty to the indictment or to one or more counts of the indictment, the Prosecutor shall do one or more of the following before the Trial Chamber:

    (i) apply to amend the indictment accordingly;
    (ii) submit that a specific sentence or sentencing range is appropriate;
    (iii) not oppose a request by the accused for a particular sentence or sentencing range.

    (B) The Trial Chamber shall not be bound by any agreement specified in paragraph (A)⁸³.

    (C) If a plea agreement has been reached by the parties, the Trial Chamber shall require the disclosure of the agreement in open session or, on a showing of good cause, in closed session, at the time the accused pleads guilty in accordance with Rule 62 (vi), or requests to change his or her plea to guilty.

49. The Indictment was read out in its entirety, paragraph by paragraph. The Accused pleaded guilty to all charges and admitted that the entire factual basis was correctly reflected in the Indictment, including his statements quoted therein.⁸⁴ Having satisfied itself as to the matters set out in Rule 62 bis of the Rules, namely that the guilty plea was voluntary, informed and unequivocal, and that there was a sufficient factual basis for the crimes and for the Accused’s participation in them,⁸⁵ the Trial Chamber entered a finding of guilt on Counts 1 through 4 of the Indictment against the Accused.⁸⁶
    V. THE FACTS
    A. Facts Emanating From the Plea Agreement
    1. General Factual Background

50. In January 1992, the “Birac Autonomous Region”, an area consisting of Vlasenica and eight neighbouring municipalities, was created by a joint declaration of the Serbs of those municipalities. The Spring of 1992 saw tensions in the area increase due to a referendum on the proposed independence of BiH.⁸⁷

51. The town of Vlasenica is located within the municipality of the same name (see the map on the inside of the front cover of this Judgement). The 1991 census recorded that 55% of the 33,817 citizens in the municipality were Muslim, 43% were Serb, and 2% were listed as “other”. Of the approximately 7,500 citizens in the town of Vlasenica, 65% were Muslim and 35% were Serb.⁸⁸

52. On about 21 April 1992 the town of Vlasenica was taken over by Serb forces consisting of the Yugoslav People’s Army (hereinafter “JNA”), paramilitary forces and armed locals.

53. As soon as Serb control of the municipality of Vlasenica had been established, the Crisis Staff took over the administration of the town and all official positions were occupied by Serbs appointed by the Crisis Staff. Military responsibilities formerly carried out by the JNA were assigned to local Serb men who had been mobilised. Their duties included guarding important facilities and searching the surrounding woods for armed Muslims.⁸⁹

54. Many Muslims and other non-Serbs fled from the Vlasenica area, and beginning in May 1992 and continuing until September 1992, those who had remained were either deported or arrested.⁹⁰

55. In late May or early June 1992, Serb forces established a detention camp run by the military and the local police militia in Susica. It was the main detention facility in the Vlasenica area and was located approximately one kilometre from the town⁹¹.

56. From early June 1992 until about 30 September 1992, Dragan Nikolic was a commander in Susica camp.⁹²

57. The detention camp comprised two main buildings and a small house (see the inside of the back cover of this Judgement). The detainees were housed in a warehouse or hangar (hereinafter “the hangar”) which measured approximately 50 by 30 meters. Between late May and October 1992, as many as 8,000 Muslim civilians and other non-Serbs from Vlasenica and the surrounding villages were successively detained in the hangar in Susica camp.⁹³ The number of detainees in the hangar at any one time was usually between 300 and 500. The building was severely overcrowded and living conditions were deplorable. The food provided for the detainees was sparse and often spoiled.⁹⁴

58. The second main building was a smaller building used to store uniforms and equipment. In addition, a small house was used by the commander of the camp and the camp guards to, inter alia, interrogate Muslim and other non-Serb detainees.⁹⁵

59. Men, women and children were detained in Susica camp, some being detained as entire families. Women and children were usually only detained for short periods of time and then forcibly transferred to nearby Muslim areas. Before being forcibly transferred, non-Serbs usually had to sign a document stating that they were leaving the area voluntarily and giving up their property.⁹⁶

60. The guards brutally beat the detainees on a daily basis. Many of them died from the beatings.⁹⁷

61. Many of the detained women were subjected to sexual assaults, including rape. Camp guards or other men who were allowed to enter the camp frequently took women out of the hangar at night. When the women returned, they were often in a traumatised state and distraught.⁹⁸

62. By September 1992, virtually no Muslims or other non-Serbs remained in Vlasenica.⁹⁹
    2. Facts Related to the Individual Criminal Conduct of the Accused

63. The Trial Chamber will now review the facts specific to each of the counts in the Indictment.

64. The Accused admitted the veracity of each of the now following facts The Trial Chamber recalls that it is bound by the assessment contained in the Plea Agreement and the factual basis underlying that agreement, in this instance the hereto attached Indictment.¹⁰⁰

65. The Trial Chamber recognises that the Accused spontaneously admitted his guilt by stating: “I plead guilty, Your Honour” to Count 3 and: “Guilty, Your Honour” to Count 4 even before the Trial Chamber asked for his plea.¹⁰¹

    (a) Count 1 - Persecutions

66. From early June until about 30 September 1992, Dragan Nikolic was a commander in Susica detention camp. During his tenure as a camp commander, the Accused persecuted detainees on political, racial and religious grounds.¹⁰²

67. The Accused persecuted Muslim and other non-Serb detainees by subjecting them to murders, rapes and torture as charged specifically in the Indictment.¹⁰³ In addition, Dragan Nikolic participated in creating and maintaining an atmosphere of terror in the camp through murders, beatings, sexual violence and other physical and mental abuse.¹⁰⁴

68. The Accused persecuted Muslim and other non-Serb detainees by participating in sexual violence directed at the female detainees in Susica camp.¹⁰⁵

69. As part of the persecutions, Dragan Nikolic subjected detainees to inhumane living conditions by depriving them of adequate food, water, medical care, sleeping and toilet facilities.¹⁰⁶ As a result of the atmosphere of terror and the conditions in the camp, detainees suffered psychological and physical trauma.¹⁰⁷

70. The Accused persecuted detained Muslims and other non-Serbs by assisting in their forcible transfer from the Vlasenica municipality. At the end of June 1992, large numbers of the male detainees were transferred from Susica camp to the larger Batkovic detention camp located near Bijeljina in north-eastern Bosnia and Herzegovina. “Most of the women and children detainees were transferred either to Kladanj or Cerska in Bosnian Muslim controlled territory.”¹⁰⁸

    (b) Count 2 – Murder

71. In the following paragraphs the Trial Chamber will outline the criminal conduct of the Accused that lead to the deaths of nine non-Serb detainees, which underlies the count of murder.

    (i) The murder of Durmo Handzic and Asim Zildzic

72. One evening sometime between 13 – 24 June 1992, the Accused and other camp guards entered the hangar and called out Durmo Handzic and Asim Zildzic. Once outside, the Accused and the guards subjected these two detainees to severe physical abuse, including punching, kicking and beatings with weapons such as lengths of wood. This lasted for at least 45 minutes, during which time the two men repeatedly begged for the beating to stop.¹⁰⁹

73. After the beating, Durmo Handzic and Asim Zildzic were brought back to the hangar. A short time after returning Asim Zildzic died. The next morning the Accused ordered two detainees to bury the body of Asim Zildzic.¹¹⁰

74. Later that morning, the Accused entered the hangar and approached Durmo Hand zic. He demanded information regarding Durmo Handzic’s son notwithstanding the fact that Durmo Handzic was in severe agony from being beaten the night before. Durmo Handzic died shortly thereafter and was buried that day by other detainees.¹¹¹

    (ii) The murder of Rasid Ferhatbegovic, Muharem Kolarevic, Dzevad Saric and Ismet Zekic

75. During the night of 23 and 24 June 1992, the Accused ordered Muharem Kolarevi c and Dzevad Saric to be taken out of the hangar. A little while later, other camp guards took out Ismet Zekic as well. For approximately 30 minutes after the men had been taken out of the hangar, detainees inside heard cries of pain and then gunshots that came from a location close to the hangar.¹¹²

76. Afterwards, a guard called two detainees from the hangar and ordered them to dispose of the bodies of Muharem Kolarevic and Dzevad Saric behind the hangar. The Accused ordered the two detainees to wash away the blood from the area where Muharem Kolarevic and Dzevad Saric had been beaten.¹¹³

77. After attempting to wash away the blood, the two detainees waited outside of the hangar. They watched the guard who had called them out of the hangar shoot and kill Ismet Zekic, while the Accused was sitting inside the nearby guard house.¹¹⁴

78. Shortly after Ismet Zekic was killed, the Accused and the guard who had shot Zekic entered the hangar with some local policemen. The policemen pointed at Ras id Ferhatbegovic and asked if he was the one who was running away. The guard who had killed Ismet Zekic said “yes”. Rasid Ferhatbegovic was then removed from the hangar and shortly thereafter the other prisoners heard one shot, killing also Rasid Ferhatbegovic.¹¹⁵

79. Early the next morning, the Accused entered the hangar and again called out the two prisoners who had disposed of the bodies the day before. They went to the area of the camp that was used as a toilet and saw the body of Muharem Kolarevic slumped over a fence and caught in wire. The guard who had killed Ismet Zekic the day before then shot Muharem Kolarevic again.¹¹⁶

80. The two detainees took the body of Muharem Kolarevic to the area where they had left the bodies the previous evening. There they saw the body of Rasid Ferhatbegovi c with a bullet hole in the centre of his forehead.¹¹⁷

    (iii) The murder of Ismet Dedic

81. Around 6 July 1992, the Accused took Ismet Dedic out of the hangar and closed the door behind them. The detainees inside the hall then heard Ismet Dedic scream.¹¹⁸

82. A few minutes later, Dragan Nikolic directed two detainees to drag Ismet Dedi c back inside the hangar. The other detainees observed that Ismet Dedic’s body was covered in blood and was barely recognisable. Ismet Dedic died shortly thereafter. The other detainees placed his body in a plastic bag and removed it.¹¹⁹

    (iv) The murder of Mevludin Hatunic

83. In early July 1992 Mevludin Hatunic, his wife and his daughter were detained in Susica detention camp. Between about 3 and 7 July 1992, while in detention, Mevludin Hatunic offered his house to a Serb in exchange for moving Mevludin Hatunic’s family out of the area. Mevludin Hatunic was permitted to leave the camp to arrange the transfer of the house.¹²⁰

84. When Mevludin Hatunic returned to the camp, Dragan Nikolic accused him of having told the Serb to whom he had given his house that he would “wait for his opportunity to get even.” Later that evening the Accused beat Mevludin Hatunic because of the alleged statement.¹²¹

85. The next morning the Accused entered the hangar and beat Mevludin Hatunic again until Mevludin Hatunic lost consciousness. That evening, when the Accused entered the hangar and saw that Mevludin Hatunic had regained consciousness, he proceeded to beat him for the third time and, shortly thereafter, Mevludin Hatunic succumbed to his injuries and died. Other detainees wrapped the body and removed it from the hangar.¹²²

    (v) The murder of Galib Music

86. From about the second week of July 1992, over a seven-day period, the Accused beat detainee Galib Music, who was 60 years old. Among other acts, the Accused kicked Galib Music and beat him with a metal pipe. Each time Dragan Nikolic beat Galib Music, Music lost consciousness. During the beatings, Dragan Nikolic accused Galib Music of having requested a Muslim organization to come to expel the Serbs from Vlasenica. After about seven days of beatings, Galib Music died.¹²³

    (c) Count 3 – Aiding and Abetting Rape

87. Paragraph 20 of the Indictment states:

    From early June until about 15 September 1992 many female detainees in Susica camp were subjected to sexual assaults, including rapes and degrading physical and verbal abuse. Dragan Nikolic personally removed and otherwise facilitated the removal of female detainees from the hangar, which he knew was for purposes of rapes, and other sexually abusive conduct. The sexual assaults were committed by camp guards, special forces, local soldiers and other men.

88. Paragraph 21 of the Indictment continues by stating:

    Female detainees were sexually assaulted at various locations, such at the guardhouse, the houses surrounding the camp, at the Panorama Hotel, a military headquarters, and at locations where such women were taken to perform forced labour. Dragan Nikolic allowed female detainees, including girls and elderly women, to be verbally subjected to humiliating sexual threats in the presence of other detainees in the hangar. Dragan Nikolic facilitated the removal of female detainees by allowing guards, soldiers and other males to have access to these women on a repetitive basis and by otherwise encouraging the sexually abusive conduct.

89. The Trial Chamber observes that the Prosecution has used the broad term of “Sexual Violence” to describe the acts alleged in paragraphs 20 and 21 of the Indictment,¹²⁴ the basis for Count 3. Apparently based on a mutual agreement between the Parties, this criminal conduct is defined in the Indictment as aiding and abetting rape. The charge states:

    By his aiding and abetting in the conduct described in paragraph 20 and 21,¹²⁵ in relation to female detainees in the Susica camp, DRAGAN NIKOLICis individually criminally responsible for:

    Count 3: Rape, a CRIME AGAINST HUMANITY punishable under Article 5(g) and Article 7(1) of the Statute of the Tribunal.

90. As discussed, the Trial Chamber considers that only that part of the Accused’s criminal conduct set out in paragraphs 20 and 21 of the Indictment which amounts to the crime of aiding and abetting rape should be considered under Count 3. The remaining criminal conduct alleged in these paragraphs of the Indictment should be subsumed under Count 1, Persecutions.

    (d) Count 4 - Torture

    (i) The torture of Fikret Arnaut

91. The Accused beat Fikret Arnaut while he was detained in Susica camp during the period from 1 June to 18 July 1992. Fikret Arnaut was beaten both inside and outside the hangar and several times in a corner of the hangar known as the “punishment ” corner. The Accused kicked, stomped on and punched Fikret Arnaut with metal “knuckles ” on his fists.¹²⁶

92. On one occasion, the Accused entered the hangar and told Fikret Arnaut to kneel on the floor, put his hands behind his head and tilt his head back. The Accused put a bayonet in Fikret Arnaut’s mouth and asked him about Fikret Arnaut’s brother, who the Accused claimed had joined a group of “ustasa”¹²⁷. Two men entered the hangar later that same day and took Fikret Arnaut outside. When Fikret Arnaut returned, he had been severely beaten and was bleeding from his mouth. The Accused came to Fikret Arnaut in the hangar a short while later and said words to the effect: “What? They did not beat you enough; if it had been me, you would not be able to walk. They are not as well trained to beat people as I am.”¹²⁸

93. One another occasion the Accused took Fikret Arnaut outside the hangar and beat him with the metal knuckles. When Fikret Arnaut fell to the ground, the Accused kicked him in the ribs and on the back around the kidney area. Throughout this beating Dragan Nikolic accused Fikret Arnaut of organizing Muslims.¹²⁹

94. On a subsequent occasion, the Accused approached Fikret Arnaut in the hangar and said words to the effect: “I can’t believe how an animal like this can’t die; he must have two hearts.”¹³⁰ The Accused then beat Fikret Arnaut again and stomped on his chest.¹³¹

    (ii) The torture of Sead Ambeskovic and Hajrudin Osmanovic

95. Sead Ambeskovic was arrested in Vlasenica on 11 June 1992. Police first interrogated him and then took him to the Susica detention camp. Once in the camp, the Accused and others beat him with axe handles, iron bars and rifle butts.¹³²

96. On the morning of 14 June 1992, guards took Sead Ambeskovic and Hajrudin Osmanovi c out of the hangar. The two men were ordered to kneel with their hands behind their heads. The Accused asked them where their weapons were and to identify others who had weapons.¹³³

97. During the interrogation, the Accused and others then beat Sead Ambeskovic and Hajrudin Osmanovic with iron bars, wooden bats and rifle butts for approximately 90 minutes. As a result of this beating, the back of Sead Ambeskovic’s head was cut, four teeth on the left side of his mouth were knocked out, and three ribs were broken.¹³⁴

98. On or about 16 June 1992, the Accused again called Sead Ambeskovic and Hajrudin Osmanovic out of the hangar. Once again the Accused interrogated the two men, demanding to know if they or anyone else had weapons. Dragan Nikolic and two other guards immediately began beating Sead Ambeskovic and Hajrudin Osmanovic with bats for 10 to 15 minutes.¹³⁵

99. On 3 July 1992, Hajrudin Osmanovic was taken from the Susica detention camp to perform forced labour. He has never been seen since.¹³⁶

    (iii) The torture of Suad Mahmutovic

100. From about 13 June to about 3 July 1992, Dragan Nikolic frequently, sometimes daily, beat Suad Mahmutovic in Susica detention camp. Dragan Nikolic beat Suad Mahmutovi c with iron bars, rifle butts and rubber tubing with lead inside. During one beating, seven of Suad Mahmutovic’s were broken. On a separate occasion, the Accused kicked Suad Mahmutovic in the face with his boot which caused a cut that left permanent scars.¹³⁷

101. On one occasion, the Accused put a cocked pistol into Suad Mahmutovic’s mouth and tried to force Suad Mahmutovic to admit that his neighbour had a weapon. Suad Mahmutovic refused to admit that and the Accused pulled the trigger, but the gun was not loaded.¹³⁸

     (iv) The torture of Redjo Cakisic

102. Redjo Cakisic was arrested on 2 June 1992 and taken to Susica detention camp. Upon arrival, the Accused and other guards searched him. Redjo Cakisic was then taken to the hangar where, with other detainees, he was ordered to line up and lean against a wall with his hands behind his back. The Accused then hit Redjo Cakisic and other detainees with his rifle butt and kicked them with his boots.¹³⁹

103. Approximately ten days later, the Accused called Redjo Cakisic out of the hangar during the night. Two men who were not camp guards were waiting outside with Dragan Nikolic. Dragan Nikolic said to them words to the effect: “Here, I brought you something for dinner.”¹⁴⁰

104. The two men hit Redjo Cakisic on the back with rifle butts and kicked him in the stomach and sides. During this beating, Dragan Nikolic was approximately five metres away in the guard house. The beating lasted about 20 minutes.¹⁴¹
     B. Additional Facts Emanating From the Sentencing Hearing

105. In the Sentencing Hearing held between 3 and 6 November 2003 additional circumstances surrounding the aforementioned details of the Indictment were heard. They describe in greater detail the conduct of the Accused and the impact that his conduct had on surviving victims and their relatives. They will only be given due consideration in the discussion of aggravating and mitigating factors (section VIII) insofar as they may carry significant weight. The Trial Chamber has no doubt as to the veracity of this additional evidence. However, the Trial Chamber reemphasizes that these facts can and will not be considered as constituting new crimes not included in the Indictment.
     VI. THE LAW
     A. Legal Basis

106. In the terms of the Plea Agreement, by pleading guilty the Accused acknowledged that the Prosecutor had the onus to prove the following elements beyond a reasonable doubt.¹⁴² The Trial Chamber feels it is necessary at this point to reiterate that it is bound by the assessment provided by the Prosecution in the Plea Agreement and will therefore refrain from other possible assessments.¹⁴³
     1. Common Elements

107. The common elements were set out in paragraph 5 of the Plea Agreement which states:

     Dragan Nikolic understands that the Prosecution has to prove each of the following common elements in Counts 1 – 4 beyond a reasonable doubt for him to be found guilty :

     (1) the existence of an armed conflict;

     (2) the existence of a widespread or systematic attack directed against a civilian population;

     (3) the accused’s conduct was related to the widespread or systematic attack directed against a civilian population;

     (4) the accused had knowledge of the wider context in which his conduct occurred.

     2. Count 1, Persecutions

108. The elements required for persecution were set out in paragraph 6 of the Plea Agreement. It provides:

     6. In relation to Count 1, Persecutions, Dragan Nikolic understands that the Prosecution has to prove each of the following elements beyond a reasonable doubt for him to be found guilty:

     (1) the accused committed acts or omission against a victim or victim population violating a basic or fundamental human right;

     (2) the accused intended to commit the violation;

     (3) the accused’s conduct was committed on political, racial or religious grounds and;

     (4) the accused’s conduct was committed with a deliberate intent to discriminate.

109. Murder, rape and torture, as set out in paragraph 4 of the Indictment, are contained within the count of persecutions and are among the crimes listed in Article 5 of the Statute. However, the Trial Chamber has to consider whether forcible transfer ¹⁴⁴, sexual violence,¹⁴⁵ subjection to inhumane conditions and atmosphere of terror may be taken as additional acts of persecution.
110. The Trial Chamber reiterates what it stated in Stakic:

     The acts of persecution not enumerated in Article 5 or elsewhere in the Statute must be of an equal gravity or severity as the other acts enumerated under Article 5. When considering whether acts or omissions satisfy this threshold, they should not be considered in isolation but in their context and with consideration to their cumulative effect. An act which may not appear comparable to the other acts enumerated in Article 5 might reach the required level of gravity if it had, or was likely to have, an effect similar to that of the other acts because of the context in which it was undertaken.¹⁴⁶

111. The Trial Chamber finds that the situation in Susica camp, as previously described, was that serious that the acts of forcible transfer, sexual violence, subjection to inhumane conditions and atmosphere of terror rise without further explanation to a level of gravity that falls within the ambit of Article 5 of the Statute.¹⁴⁷
     3. Count 2, Murder

112. With regard to Murder, the Plea Agreement states:

     7. In relation to Count 2, Murder, Dragan Nikolic understands that the Prosecution has to prove each of the following elements beyond a reasonable doubt for him to be found guilty:

     (1) the accused committed acts or omissions that caused the death of the victims ;

     (2) the accused intended to kill the victim, or;

     (3) the accused intended to inflict serious injury to the victim and should have reasonably known that it would lead to the death of the victim.

     4. Count 3, Rape

113. With regard to Count 3, aiding and abetting rape, paragraph 8 of the Plea Agreement provides:

     In relation to Count 3, Rape, Dragan Nikolic understands that the Prosecution has to prove each of the following elements beyond a reasonable doubt for him to be found guilty of aiding and abetting:

     (1) the perpetrator committed a sexual penetration of the vagina or anus of the victim by his penis or any other object used by him, or;

     (2) the perpetrator committed a sexual penetration by the mouth of the victim by his penis;

     (3) the perpetrator intended to effectuate the sexual penetration of the victim ;

     (4) the perpetrator intended the sexual penetration and knew that it was committed against the will of the victim.

     5. Count 4, Torture

114. With regard to the count of torture, paragraph 9 of the Plea Agreement states:

     In relation to Count 4, Torture, Dragan Nikolic understands that the Prosecution has to prove each of the following elements beyond a reasonable doubt for him to be found guilty:

     (1) the accused inflicted, by act or omission, sever pain or suffering, whether physical or mental;

     (2) the accused acted or omitted to act deliberately;

     (3) the accused acted or omitted for a prohibited purpose, including to obtain information, or a confession, to punish, intimidate, or coerce the victim or a third person, or for discrimination, on any ground against the victim or a third person.

     B. Cumulative Convictions

115. Recently, inter alia, in the Simic¹⁴⁸ and Stakic trial judgements, the question “whether and in which circumstances multiple convictions against an accused may be entered under separate heads of liability based on the same underlying conduct”¹⁴⁹ was addressed. Both Chambers referred to the two-pronged test devised by the Appeals Chamber in Celebici and later affirmed in Kunarac,¹⁵⁰ which, when met, permits cumulative convictions. The Appeals Chamber stated:

     [… M]ultiple criminal convictions entered under different statutory provisions but based on the same conduct are permissible only if each statutory provision has a materially distinct element not contained in the other. An element is materially distinct from another if it requires proof of a fact not required by the other.

     […] the Chamber must decide in relation to which offence it will enter a conviction. This should be done on the basis of the principle that the conviction under the more specific provision should be upheld. Thus, if a set of facts is regulated by two provisions, one of which contains an additional materially distinct element, then a conviction should be entered only under that provision.¹⁵¹

116. In Stakic it was said that a Trial Chamber could in the exercise of its discretion further limit cumulative convictions by convicting an accused for the crime “that most closely and comprehensively reflects the totality of the accused’s criminal conduct.”¹⁵²

117. In the present case, Dragan Nikolic pleaded guilty to the Indictment which charged him with, inter alia, individual criminal responsibility for committing Murder (Count 2), aiding and abetting Rape (Count 3)¹⁵³ and committing Torture (Count 4)¹⁵⁴ as crimes against humanity. The criminal conduct underlying these charges also forms the basis, in part, for the charge of Persecutions as a crime against humanity in Count 1.

118. As the charges in Count 1 are based on the same underlying facts as Counts 2, 3, and 4, the Trial Chamber must evaluate whether cumulative convictions are permissible under the applicable test. The Trial Chamber is satisfied by the Accused’s guilty plea that the acts of murder, torture and aiding and abetting rape were committed by him with the discriminatory intent required for them to be included in the count of Persecutions.

119. Therefore, based on the Plea Agreement, the Trial Chamber enters a single conviction for (Count 1) Persecutions, a Crime Against Humanity under Article 5 of the Statute, committed by acts of:

     (i) Murder (Count 2),

     (ii) Torture (Count 4),

     (iii) Sexual Violence (Count 1),

     (iv) Forcible Transfer (Count 1),

     (v) Subjection to Inhumane Conditions (Count 1),

     (vi) Creating and Maintaining an Atmosphere of Terror (Count 1), and

     (vii) Aiding and Abetting Rape (Count 3).

     VII. SENTENCING LAW

120. Acting under Chapter VII of the Charter of the United Nations, this Tribunal ¹⁵⁵ is not only mandated to search for and record, as far as possible, the truth of what happened in the former Yugoslavia, but also to bring justice to both victims and their relatives and to perpetrators. Truth and justice should also foster a sense of reconciliation between different ethnic groups within the countries and between the new States on the territory of the former Yugoslavia.

121. A guilty plea indicates that an accused is admitting the veracity of the charges contained in an indictment. This also means that the accused acknowledges responsibility for his actions. Undoubtedly this tends to further a process of reconciliation. A guilty plea protects victims from having to relive their experiences and re-open old wounds. As a side-effect, albeit not really a significant mitigating factor, it also saves the Tribunal’s resources.

122. As opposed to a pure guilty plea (Rule 62 bis of the Rules), a plea agreement (Rule 62 ter of the Rules), while having its own merits as an incentive to plead guilty, has two negative side effects. First, the admitted facts are limited to those in the agreement, which might not always reflect the entire available factual and legal basis. Second, it may be thought that an accused is confessing only because of the principle “do ut des” (give and take). Therefore, the reason why an accused entered a plea of guilt need to be analysed: were charges withdrawn, or was a sentence recommendation given? In any event, a plea agreement pursuant to Rule 62 ter and 62 bis of the Rules does not allow the Trial Chamber to depart from the mandate of this Tribunal, which is to bring the truth to light and justice to the people of the former Yugoslavia. Neither the public, nor the judges themselves come closer to know the truth beyond what is accepted in the plea agreement.¹⁵⁶ This might create an unfortunate gap in the public and historical record of the concrete case, although, when coupled with an accused’s substantial co-operation with the prosecution, an agreement grants more insights into previously undiscovered areas. However, while treating plea agreements with appropriate caution,¹⁵⁷ it should be recalled that this Tribunal is not the final arbiter of historical facts. That is for historians. For the judiciary focusing on core issues of a criminal case before this International Tribunal, it is important that justice be done and be seen to be done.
     A. The Individual Guilt of an Accused and the Principle of Proportionality

123. The individual guilt of an accused limits the range of the sentence. Other goals and functions of a sentence can only influence the range within the limits defined by individual guilt.¹⁵⁸

124. In Stakic this Trial Chamber recalled that:

     [T]he International Tribunal was set up to counteract impunity and to ensure a fair trial for the alleged perpetrators of crimes falling within its jurisdiction. […] The Tribunal is mandated to determine the appropriate penalty, often in respect of persons who would never have expected to stand trial. While one goal of sentencing is the implementation of the principle of equality before the law, another is to prevent persons who find themselves in similar situations in the future from committing crimes.¹⁵⁹

125. The Statute explicitly vests the judges with discretion to determine the appropriate punishment for each accused and each act charged.¹⁶⁰ Thus, when the Trial Chamber evaluates the different sentencing factors, it does so in the interest of the nature and gravity of the crimes committed, the circumstances surrounding the acts themselves, the degree of responsibility of an accused for the act and the personality of the accused.

126. Finally the fundamental principle of proportionality¹⁶¹ has to be taken into account.
     B. Principles and Purposes
     1. Submissions of the Parties

127. The Prosecution submits that the primary principles for the Trial Chamber to consider are retribution and deterrence. It submits that the goal of retribution is not revenge “but, to express the outrage of the international community at heinous crimes”.¹⁶² Furthermore, the Prosecution argues that retribution aims to ensure that the punishment is proportional to the crimes committed while deterrence serves to dissuade others from committing similar crimes.¹⁶³

128. The Defence submits that the elements of punishment, i.e. prevention, deterrence and rehabilitation must be carefully balanced. Punishment is in itself is a legitimate sentencing consideration, but, the Defence submits, it is often confused with retribution. Whereas retribution is often equated with revenge, most lawyers “understand retribution to be a rather more personalized way of describing punishment as experienced subjectively by the defendant and viewed objectively by an observer.” ¹⁶⁴

129. With regard to prevention, the Defence argues that the preventive element that is attached to sentencing is negated in the current case because it submits that the Accused is neither a person with a psychopathic tendency to commit crimes nor a person who has the intention to continue committing offences whenever the opportunity arises.¹⁶⁵

130. The Defence disputes the relevance of deterrence. “Although frequently cited, this element, it is submitted, is the least logical and least credible reasoning behind any sentencing exercise in any jurisdiction either national or supranational.”¹⁶⁶ The Trial Chamber notes that these remarks are primarily made in the context of the Defence’s example regarding the death penalty, a sanction to be abolished according to the policies of the United Nations and the Council of Europe and, for good reasons, not envisaged in the Statute.

131. The Defence submits that the Trial Chamber should take rehabilitation into consideration as a mitigating factor. It argues that rehabilitation has two main components: individual rehabilitation that comes from an accused admitting responsibility and showing remorse; and the “rehabilitative effect of sentencing upon the community …(which( is further influenced by how an individual defendant has contributed towards such rehabilitation.”¹⁶⁷
     2. Discussion

132. Fundamental principles taken into consideration when imposing a sentence are deterrence and retribution. The Appeals Chamber in “Celebici” held, inter alia, that:

     the Appeals Chamber (and Trial Chambers of both the Tribunal and the ICTR) have consistently pointed out that two of the main purposes of sentencing for these crimes are deterrence and retribution.¹⁶⁸

133. Regarding rehabilitation, the Appeals Chamber in “Celebici” held that :

     [A]lthough rehabilitation (in accordance with international human rights standards) should be considered as a relevant factor, it is not one which should be given undue weight.¹⁶⁹

     (a) Deterrence

134. Individual and general deterrence has an important function in principle and serves as an important goal of sentencing.¹⁷⁰

135. Individual deterrence refers to the specific effect of the sentence upon the accused which should be adequate to discourage him from re-offending once the sentence has been served and he has been released. The Trial Chamber finds, however, that individual deterrence has no relevance in this case.

136. The sentence imposed must also be sufficient in order to dissuade others from committing the same crime, in other words it must have a general deterrent effect. The Trial Chamber in the Todorovic sentencing judgement stated:

     The Appeals Chamber has held that deterrence “is a consideration that may legitimately be considered in sentencing” and has further recognised the “general importance of deterrence as a consideration in sentencing for international crimes”. The Chamber understands this to mean that deterrence is one of the principles underlying the determination of sentences, in that the penalties imposed by the International Tribunal must, in general, have sufficient deterrent value to ensure that those who would consider committing similar crimes will be dissuaded from doing so.¹⁷¹

137. In Stakic the Trial Chamber stated that:

     [i]n the context of combating international crimes, deterrence refers to the attempt to integrate or to reintegrate those persons who believe themselves to be beyond the reach of international criminal law. Such persons must be warned that they have to respect the fundamental global norms of substantive criminal law or face not only prosecution but also sanctions imposed by international tribunals. In modern criminal law this approach to general deterrence is more accurately described as deterrence aiming at reintegrating potential perpetrators into the global society.¹⁷²

138. It is important to note that courts in various national jurisdictions recognise the principle of deterrence. An example can be found in the Court of Appeal of the Northern Territory of Australia decision R. v. Bloomfield which ruled that:

     [t]he greater the harm, the greater its weight in the balance of conflicting interests against the offender by way of punishment as a general deterrent. It must be made clear, both to the offender and others with similar impulses, that if they yield to them they will meet with severe punishment: “in all civilized countries, in all ages, that has been the main purpose of punishment and continues to be so”¹⁷³

139. One of the main purposes of a sentence imposed by an international tribunal is to influence the legal awareness of the accused, the surviving victims, their relatives, the witnesses and the general public in order to reassure them that the legal system is implemented and enforced. Additionally, the process of sentencing is intended to convey the message that globally accepted laws and rules have to be obeyed by everybody. “All persons shall be equal before the courts and tribunals.”¹⁷⁴ This fundamental rule fosters the internalisation of these laws and rules in the minds of legislators and the general public.

     (b) Retribution

140. “An equally important factor is retribution. This is not to be understood as fulfilling a desire for revenge but as duly expressing the outrage of the international community at these crimes.”¹⁷⁵ The principle or theory of retribution has long been confused with the notion of vengeance as submitted by both the Prosecution and Defence. By contrast, this Trial Chamber agrees that retribution should solely be seen as:

     an objective, reasoned and measured determination of an appropriate punishment which properly reflects the […] culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offenders conduct. Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more.¹⁷⁶

     C. Article 24 of the Statute and Rule 101 of the Rules

141. Neither the Statute nor the Rules specify a concrete range of penalties for offences under the Tribunal’s jurisdiction. Determination of the appropriate sentence is left to the discretion of each Trial Chamber,¹⁷⁷ although guidance as to which factors should be taken into account is provided by both the Statute and the Rules.

142. Article 24 of the Statute provides a non-exhaustive list of the factors to be taken into account by the Trial Chamber in determining the sentence and reads in its relevant parts:

     1. The penalty imposed by the Trial Chamber shall be limited to imprisonment. In determining the terms of imprisonment, the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia.

     2. In imposing the sentences, the Trial Chambers should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person. […]

143. Rule 101 of the Rules further states in its relevant parts:

     (A) A convicted person may be sentenced to imprisonment for a term up to and including the remainder of the convicted person’s life.

     (B) In determining the sentence, the Trial Chamber shall take into account the factors mentioned in Article 24, paragraph 2, of the Statute, as well as such factors as :

     (i) any aggravating circumstances;

     (ii) any mitigating circumstances including the substantial co-operation with the Prosecutor by the convicted person before or after conviction;

     (iii) the general practice regarding prison sentences in the courts of the former Yugoslavia ; […]

     (C) Credit shall be given to the convicted person for the period, if any, during which the convicted person was detained in custody pending surrender to the Tribunal or pending trial or appeal.

     D. Gravity of the Crime, Aggravating and Mitigating Factors

144. The gravity of the offence is a factor of primary importance, and “may be regarded as the litmus test” in the imposition of an appropriate sentence.¹⁷⁸ It is necessary to consider the nature of the crime and “the particular circumstances of the case, as well as the form and degree of the participation of the accused in the crime” in order to determine the gravity of the crime.¹⁷⁹  “A sentence must reflect the predominant standard of proportionality between the gravity of the offence and the degree of responsibility of the offender.”¹⁸⁰

145. In determining sentence, the Trial Chamber is obliged to take into account any aggravating and mitigating circumstances, but the weight to be given to the aggravating and mitigating circumstances is within the discretion of the Trial Chamber.¹⁸¹ The aggravating circumstances should be proven beyond reasonable doubt,¹⁸² while “the standard to be met for mitigating factors is the balance of probabilities ”¹⁸³ and “mitigating circumstances may also include those not directly related to the offence”.¹⁸⁴

146. The Rules specify only “substantial co-operation with the Prosecutor” as a mitigating factor, other factors often taken into account by this Tribunal in mitigating a sentence are, inter alia, a plea of guilty,¹⁸⁵ acceptance of a certain degree of guilt,¹⁸⁶ expression of genuine remorse,¹⁸⁷ compassion by an accused and any assistance given to the victims by an accused,¹⁸⁸ the age of the accused,¹⁸⁹ absence of previous criminal record and the accused’s family and social situations.¹⁹⁰
     E. Sentencing Ranges

147. Rule 101 (A) of the Rules, which grants the power to imprison for a term up to and including the remainder of the convicted person’s life, shows that “a Trial Chamber’s discretion in imposing sentence is not bound by any maximum term of imprisonment applied in a national system.”¹⁹¹

148. Pursuant to Article 24 (1) of the Statute and Rule 101 (B) (iii) of the Rules, Trial Chambers shall have recourse, in determining sentence, to the “general practice regarding prison sentences in the courts of the former Yugoslavia.” However, it is settled in the jurisprudence of this Tribunal that Trial Chambers are not bound by this “general practice”. The Trial Chamber notes that it is difficult to identify such “general practice” in the absence of a functioning judiciary during the period in question, especially in relation to those crimes heard before this Tribunal. Rather, Trial Chambers should take into account the applicable written law and today’s practice – if any – of courts of the States in the territory of the former Yugoslavia in relation to serious violations of International Humanitarian Law.¹⁹²

149. For this purpose and to seek guidance based on comparative research in this terrain, the Trial Chamber called an expert witness, Prof. Sieber, who presented the aforementioned Sentencing Report.¹⁹³
     1. Former Yugoslavia

150. The section of the Sentencing Report relating to the former Yugoslavia comprises both a normative and an empirical section, the latter being based on semi-standardized interviews with 17 judges from different parts of the former Yugoslavia¹⁹⁴ on questions relevant to the punishment of the crimes encompassing the acts alleged in the Indictment.¹⁹⁵ With respect to the legal significance of the empirical data, Prof. Sieber stated that “this study can give you some indication, but definitely […] it’s not a sample where you can do analysis, especially based on the various republics.”¹⁹⁶ The Trial Chamber shares this view.

151. The crimes to which the Accused pleaded guilty occurred in Vlasenica now part of BiH and Republika Srpska, its entity. The Trial Chamber is therefore particularly interested in the sentencing laws and practices in this region.

152. The Trial Chamber will begin with a brief chronology of the applicable law in the territory of the former Yugoslavia, starting in 1992 when the crimes to which the Accused has pleaded guilty were committed, until the present day.

153. The sentencing law in BiH was regulated in 1992 by the Criminal Code of the SFRY, adopted by the Federal Assembly on 28 of September 1976, and in force since 1 July 1977 (hereinafter the “Federal Criminal Code of 1976/77”), and by the Criminal Code of the Socialist Republic of Bosnia and Herzegovina of 10 June 1977 (hereinafter the “Criminal Code of BiH of 1977”). The Federal Criminal Code of 1976/77 regulated the general aspects of criminal law and a few specific offences, such as crimes against the security of the SFRY, genocide, and war crimes, while the Criminal Code of BiH of 1977 regulated primarily the specific offences, and some general matters not addressed by the Federal Criminal Code of 1976/77.¹⁹⁷ Both criminal codes initially remained in force after BiH declared independence in 1992.¹⁹⁸

154. In 1998 BiH’s constituent entity of the Federation of Bosnia and Herzegovina adopted its own criminal code, consisting of its own general and special parts. The Republika Srpska entity and the Brcko District followed suit shortly thereafter, adopting their own criminal codes in 2000.¹⁹⁹ In March 2003 the Office of the High Representative enacted a new Criminal Code for both entities within the State of BiH and the Brcko District (hereinafter “OHR Criminal Code of 2003”).²⁰⁰ In August 2003 the Federation of Bosnia and Herzegovina and Republika Srpska adopted new Criminal Codes (hereinafter “FedBiH Criminal Code of 2003” and “RS Criminal Code of 2003” respectively). While the OHR Criminal Code of 2003 and the Criminal Codes of the two entities within BiH of 2003 each contained their own general and special parts, the Criminal Codes of the entities dealt with specific offences only, while the OHR Criminal Code of 2003 was applicable to crimes relevant to the whole state, such as, inter alia, war crimes and crimes against humanity.²⁰¹

155. The Trial Chamber will now turn to consider the range of sentences available under the aforementioned laws in BiH in 1992 when the crimes to which the Accused has pleaded guilty were committed. Under the Federal Criminal Code of 1976/77, the range of penalties existing in 1992 was a fine, confiscation of property, imprisonment, and capital punishment. The maximum term of imprisonment was 15 years, except for offences punishable with the death penalty, committed under “particularly aggravating circumstances,” or causing “especially grave consequences,” in which cases the maximum term of imprisonment was 20 years.²⁰²

156. The punishments for the specific offences in 1992 were regulated by the Criminal Code of BiH of 1977. Murder was punishable with imprisonment of not less than five years, and in aggravated cases, which included murder in a cruel way, carried out violently, by endangering the life of others, or by motive of greed, with imprisonment of not less than 10 years or the death penalty.²⁰³ Rape was punishable with one to 10 years of imprisonment, in aggravated cases the lower limit being set to three years of imprisonment.²⁰⁴ Grievous bodily injury was punishable with six months to five years of imprisonment, which in aggravated cases could go above the set limit.²⁰⁵ If the above crimes were committed in “time of war, armed conflict or occupation,” under the Federal Criminal Code of 1976/77 these offences were qualified as war crimes and were punishable with imprisonment of a minimum of five years or the death penalty.²⁰⁶
     2. The Applicability of the Principle of lex mitior

157. The Defence argues that the principle of lex mitior should apply in the present case.

158. The Trial Chamber recalls that on the territory of the former Yugoslavia in 1992, the maximum term of imprisonment was 15 years, except for offences punishable with the death penalty, committed under “particularly aggravating circumstances,” or causing “especially grave consequences,” in which cases the maximum term of imprisonment was 20 years.²⁰⁷ According to the OHR Criminal Code of 2003, applicable in the territory of Vlasenica where the crimes were committed, the maximum penalty available for the gravest cases of serious criminal offences was “long term imprisonment”, defined as 20 to 45 years’ imprisonment.²⁰⁸ The crimes of murder, rape or torture, when committed as part of a widespread or systematic attack against civilians²⁰⁹ attract the maximum penalty of long term imprisonment (i.e. between 20 and 45 years’ imprisonment). Killing of a civilian committed in violation of rules of international law in time of war, armed conflict or occupation attracts the same maximum sentence,²¹⁰ as does the murder of a wounded or sick person in violation of the rules of international law in time of war or armed conflict²¹¹ and the murder of a prisoner of war.²¹² The RS Criminal Code of 2003 also adopted the punishment of long-term imprisonment consisting of 20 to 45 years of imprisonment which also may only be imposed for the gravest forms of serious criminal offences.²¹³

159. Based on this overview, the Trial Chamber notes that if the principle of lex mitior were applicable in the present case, as submitted by the Defence, the sentencing range would be restricted to a fixed term of imprisonment instead of a term up to and including the remainder of the convicted person’s life as provided for in Rule 101 (A) of the Rules. Therefore, the Trial Chamber has to examine whether the principle of lex mitior is applicable at all in the case before it.

160. The principle of lex mitior is enshrined in international covenants and national legislations.²¹⁴ In this context, the Trial Chamber recalls the Secretary-General’s Report pursuant to Paragraph 2 of Security Council Resolution 808 (1993), in which he stated that

     [it] is axiomatic that the International Tribunal must fully respect internationally recognized standards regarding the rights of the accused at all stages of its proceedings. In the view of the Secretary-General, such internationally recognized standards are, in particular, contained in article 14 of the International Covenant on Civil and Political Rights.²¹⁵

161. Thus, the Trial Chamber finds that the principle of lex mitior as contained in, inter alia, the International Covenant on Civil and Political Rights of 1966²¹⁶ and the American Convention on Human Rights of 1978 constitutes such an internationally recognized standard regarding the rights of the accused. Article 15 paragraph 1 sentence 3 of the ICCPR states that:

     If, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.²¹⁷

162. This principle also forms part of the criminal law applicable in BiH throughout the relevant period. Article 4 of the Federal Criminal Code of 1976/77 stated:

     (I) The law that was in force at the time when a criminal act was committed shall be applied to the person who has committed the criminal act.

     (II) If the law has been amended one or more times after the criminal act was committed, the law which is less severe in relation to the offender should be applied.

     The principle is also contained in the present national criminal codes of BiH, the Republika Srpska, and the Federation of Bosnia and Herzegovina.²¹⁸

163. However, when closer examining the content of the principle of lex mitior, the Trial Chamber is convinced that the principle applies only to cases in which the commission of a criminal offence and the subsequent imposition of a penalty took place within one and the same jurisdiction.

164. The Trial Chamber notes that the provisions mentioned above do not state that the principle of lex mitior also applies in cases where the offence was committed in a jurisdiction different from the one under which the offender receives his punishment. The Trial Chamber is aware that, for example, under Swiss law the national courts are required in such cases to apply the law of the country where the offence was committed if that jurisdiction provides for a more lenient penalty.²¹⁹ The Trial Chamber holds, however, that this does not form part of the principle of lex mitior as an internationally recognized standard. In the event of concurrent jurisdictions, no state is generally bound under international law to apply the sentencing range or sentencing law of another state where the offence was committed. With respect to the concurrent jurisdiction of the Tribunal and the jurisdictions in the former Yugoslavia,²²⁰ the Appeals Chamber adopted without further explanation the same approach when it stated that the principle that Trial Chambers are not bound in sentencing by the practice of courts in the former Yugoslavia

     applies to offences committed both before and after the Tribunal’s establishment. The Appeals Chamber can therefore see no reason why it should constitute a retrospective increase in sentence to impose a sentence greater than what may have been the maximum sentence available under domestic law in the former Yugoslavia at the time the offences were committed.²²¹

165. In conclusion, the Tribunal, having primacy vis à vis national jurisdictions in the former Yugoslavia, is not bound to apply the more lenient penalty under these jurisdictions. However, such penalties shall be taken into consideration, but as only one factor among others when determining a sentence.
     3. Other Countries

166. In addition to the section relating to sentencing law and practice in the former Yugoslavia, the Sentencing Report provided an overview of the law relating to sentencing in 23 other countries. The Sentencing Report focused on the sentencing law of serious crimes, such as murder, torture, rape, and persecution, to which the Accused has pleaded guilty, but without going into the specifics of the particular case. The Sentencing Report identifies the penalties applicable in 1992, the year the crimes were committed, as well as penalties in 2003. Generally speaking, the close analysis shows that in almost all countries studied, murder attracts rather severe penalties. In particular, a large number of the legal systems studied prescribe a mandatory sentence of life imprisonment in the case of murder by sustained beatings involving the use of weapons. A comparison between the law in effect in the year 1992 and the current law shows that only a few countries have changed the sentencing range applicable for these crimes during this period. Most of these changes relate to a replacement of the death penalty by life imprisonment as the maximum punishment.²²²

167. From a general perspective, the minimum penalty to be imposed for one act of murder committed by sustained beatings and motivated by ethnic bias (hereinafter “Aggravated Murder”) ranges from a fixed term of imprisonment up to life imprisonment in countries such as Argentina, Canada, Chile, England, Finland, France, Germany, Greece, South Africa, Sweden, Turkey and the U.S.A.

168. The maximum penalties for such one act of Aggravated Murder in the various countries range from a prison sentence of 25 years to the death penalty.

169. In Argentina,²²³ Belgium,²²⁴ Canada,²²⁵ Germany,²²⁶ England,²²⁷ Finland,²²⁸ Italy,²²⁹ and South Africa,²³⁰ one act of Aggravated Murder attracts a mandatory life sentence.

170. The sentence of life imprisonment or, in the alternative, a maximum fixed term of years is envisaged by the relevant statutory provisions of the following countries : Austria,²³¹ Poland,²³² and Sweden.²³³ In Chile and France, Aggravated Murder attracts sentences from a minimum of five years’ imprisonment  – Chile – and 2 years’ imprisonment – France²³⁴  – up to life imprisonment.

171. Finally, it appears that Brazil, Mexico, Spain, and Portugal²³⁵ limit sentencing to a fixed term of imprisonment, even in the most serious cases. The Trial Chamber notes, however, that the abolition of life imprisonment does not necessarily mean that the sentence to be finally served is less than in States providing for life imprisonment with optional or mandatory review after 15 or 20 years.

172. The overview shows that in most countries a single act of murder attracts life imprisonment or the death penalty, as either an optional or a mandatory sanction. When adopting the Statute in 1993, the Security Council was apparently cognisant of this practice and decided to vest broad discretion to the judges in determining sentences, instead of giving concrete sentencing ranges for specific offences. In line with the general UN policy on the abolition of the death penalty, the Security Council limited the applicable sentences to imprisonment.²³⁶ Acting pursuant to Article 15 of the Statute, the Plenary of this Tribunal specified Article 24 (1) of the Statute by phrasing Rule 101 of the Rules in its relevant part:

     A convicted person may be sentenced to imprisonment for a term up to and including the remainder of the convicted person’s life.

173. With regard to torture, rape and the issue of combined offences,²³⁷ the Trial Chamber refers to the Sentencing Report and the Country Reports annexed thereto which show a similar broad range of applicable sentences.
     4. Previous Jurisprudence of the Tribunal

174. Since its establishment, the Tribunal has rendered more than twenty judgements, of which some are pending on appeal.²³⁸ The scale of sentences has been very broad as each case has its own merits and deserves to be considered individually.
     VIII. FACTORS RELATED TO INDIVIDUAL RESPONSIBILITY

175. Considering the principles outlined above, the Trial Chamber will now turn to the factors relating individually to the Accused in order to determine the sentence appropriate to the specific circumstances of this case.²³⁹
     A. Gravity of the Offence and Aggravating Circumstances
     1. Submissions of the Parties

176. The Prosecution submits that the gravity of the crimes is a primary consideration for the Trial Chamber.²⁴⁰ It further submits that the Trial Chamber should consider as aggravating circumstances (i) the position of Dragan Nikolic as a commander in Susica detention camp, (ii) the vulnerability of the victims, (iii) the depravity of the crimes, (iv) the fact that there were multiple victims, and (v) that the victims were known by the Accused.

177. The Prosecution submits that

     […] the Trial Chamber must consider the magnitude of [the victims’] suffering of murder, rape and torture victims. The Trial Chamber must consider in their assessment, the despair of men and women who were separated from their loved ones, the terror experienced by those who watched fellow detainees die, and the agony experienced by those who did not perish immediately but died slowly of injuries and exposure. These assaults were conducted against the weak and vulnerable victims, who existed completely at the mercy of Dragan Nikolic.²⁴¹

178. The Defence made no submissions on aggravating circumstances.
     2. Discussion

     (a) Position of Dragan Nikolic as a Commander in Susica Detention Camp

179. The Accused admitted having been a commander in Susica camp. Testimony provided at the sentencing hearing disclosed more detail as to his position of authority and responsibility in the camp. Witness SU-032 and Habiba Hadzic stated that “Jenki ” was the main commander in the camp.²⁴² As a commander in Susica camp, he had an overall responsibility to protect the detainees from abuse and to ensure that the conditions under which they were forced to live were humane. Instead he chose to mistreat the detainees, thereby setting an example for the guards to follow and contributing to an environment of impunity.

180. He was at the camp most of the time, both in the evening and in the afternoons.²⁴³ He was armed with a variety of weapons including machine-guns and knives and was accompanied by two trained Doberman guard-dogs.²⁴⁴ The Accused was in charge of the camp at night, and was heard on one occasion saying “I am the commander here now”.²⁴⁵ He had everything under his control and issued orders. Eight to twelve guards were guarding the detainees.²⁴⁶ Although the Accused had “the main say” in the camp, he used to “co-operate” with Mico Kraljevic²⁴⁷ and on one occasion he told the detainees words to the effect: “I have to do what Mico tells me to do. He is my god and I am yours.”²⁴⁸

181. The Accused ordered detainees to sleep in locations outside the camp, in the surrounding houses or lorries.²⁴⁹ Those within the camp were not allowed to move around in the compound outside the hangar without his order.²⁵⁰

182. The Accused deliberately and callously committed the crimes in the Indictment. He was not under any orders from his superiors, nor was he under any compulsion or pressure to behave in this manner. When asked about the Accused’s position in the camp, Witness SU-032 replied: “All I knew was that Dragan Nikolic was there at the camp and did whatever he wanted to do, whatever he pleased.”²⁵¹ When asked if Dragan Nikolic held the survival of the detainees in his hands, Witness SU-032 answered in the affirmative.²⁵² The Trial Chamber has no reasonable doubts as to the veracity of this testimony.

183. Dragan Nikolic used his position of authority to intimidate the detainees and prevent them from resisting. The Accused’s abuse of his superior position in the camp in principle aggravates his crimes. The detainees lived and died by the hand and at the whim or will of Dragan Nikolic. Witness Habiba Hadzic stated on the other hand that he on one occasion saved her life,²⁵³ an aspect that as such will later be taken into account as a seriously mitigating factor.

     (b) Vulnerability of the Victims

184. The Trial Chamber in Banovic accepted that “the position of inferiority and the vulnerability of the victims as well as the context in which the offences were committed are relevant factors in assessing the gravity of the crime.”²⁵⁴ The Trial Chamber recognises that the victims were subjected to a position of special vulnerability. They were illegally detained in Susica camp without any contact to outsiders which could substantially assist them. In the camp the detainees were guarded by men armed with machine guns, grenades, knives and other weapons.²⁵⁵ There were mothers and daughters, fathers and sons, the young (e.g. one detainee was only one year old²⁵⁶), the infirm and the elderly, all detained together in the hangar at Susica camp.

185. The detainees were powerless and could not avoid daily humiliation, degradation or physical and mental abuse. Witness SU-115 stated:

     […] In Susica I was detained for 9 days and exposed to witness when my neighbours and friends from town were tortured and murdered. […] Women and girls were taken out at nights to be sexually abused and some of them never came back. People were taken out for forced labour and some of them never came back. […] I was in severe mortal fear during my entire stay at the camp and I will never be the same person again after what I experienced in the Susica camp. […]²⁵⁷

     (c) Depravity of the Crimes

     (i) Immediate effects of the conditions in the camp

186. The manner in which the crimes were committed is an important consideration in assessing the gravity of the offence. This Trial Chamber finds it hard to imagine how murder, torture and sexual violence could be committed in a harsher and more brutal way than employed by the Accused, assisted by others.

187. Not one single day and night at the camp passed by without Dragan Nikolic and other co-perpetrators committing barbarous acts.²⁵⁸ He played with the emotions of the inmates and tortured them with his words. After guards had beaten a detainee, the Accused exclaimed: “What? They did not beat you enough; if it had been me, you would not be able to walk”, and: “I can’t believe how an animal like this can’t die; he must have two hearts.”²⁵⁹

188. On another occasion he took a detainee to men who were not camp guards. The Accused was heard saying to the men words to the effect: “Here, I brought you something for dinner.”²⁶⁰

189. The Accused brutally and sadistically beat the detainees. He would kick and punch detainees and use weapons such as iron bars, axe handles, rifle butts, metal “knuckles”, truncheons, rubber tubing with lead inside, lengths of wood and wooden bats to beat the detainees.²⁶¹ The Accused even ignored his brother who would often plead with him to stop his criminal conduct by saying: “Don’t beat people, Dragan. They are to blame for nothing. Why are you doing this?”²⁶² The other detainees, including the children, observed the Accused’s criminal conduct and were afraid the same might happen to them.²⁶³

190. After Dragan Nikolic finished beating a detainee named Djidje, he would spill water on the concrete floor in the hangar and make him sit there. The victim would also not be given any food.²⁶⁴

191. On one occasion, the Accused entered the hangar and started to shoot at the walls. All the detainees lay on the floor. He said that the Green Berets were attacking the camp. The Accused continued to fire his weapon until he had emptied the entire magazine and then left the hangar.²⁶⁵

192. One of the most chilling aspects of the Accused’s behaviour was the enjoyment he derived from his acts. Witness SU-032 stated that the Accused “enjoyed himself while he was beating people. I know firsthand that he enjoyed beating Arnaut Fikret. He used to beat him five times a day.” ²⁶⁶ When two of the victims passed out due to a beating, the Accused and other guards had buckets of water thrown on them to revive them.²⁶⁷ When detainees who were being beaten begged to be shot, the Accused would reply: “A bullet is too expensive to be spent on a Muslim.”²⁶⁸

193. Such behaviour recalls that commented upon by the Trial Chamber in “Celebi ci” with which this Trial Chamber fully agrees:

     […] The most disturbing, serious and thus, an aggravating aspect of these acts, is that [Mr. …] apparently enjoyed using this device upon his helpless victims. […] There is little this Trial Chamber can add by way of comment to this attitude, as its depravity speaks for itself. ²⁶⁹

     […]

     The manner in which these crimes were committed are indicative of a sadistic individual who, at times, displayed a total disregard for the sanctity of human life and dignity. This is only amplified by the fact that [Mr. …] was the deputy commander of the prison-camp. His victims were captive and at his mercy, he abused his position of power and trust […] [T]hese circumstances are considered significant aggravating factors in the sentencing of [Mr. …].²⁷⁰

194. The Accused abused his personal position of power especially vis à vis the female detainees of Susica camp. He personally removed and returned women of all ages from the hangar, handing them over to men whom he knew would sexually abuse or rape them.²⁷¹ Witness SU-032 believes had they resisted, they would have been liquidated.²⁷² Witness SU-032 would have to agonize throughout the day, knowing what was to be her fate in the coming night.²⁷³

195. The Accused subjected the detainees to particularly humiliating and degrading treatment. This was especially true for female detainees. Like all other detainees, they had to relieve themselves in front of all the others in the hangar in buckets placed near the hangar door.²⁷⁴ For example, Habiba Hadzic, was ordered by the Accused to wash and put cream on his feet for his personal refreshment.²⁷⁵

196. On one occasion, Habiba Hadzic gave Fikret Arnaut²⁷⁶ some cookies because he had not been given any food. She did not see that Dragan Nikolic was at the door to the hangar. He walked up and crushed the biscuits with his boot, and he ordered her to go outside to the external toilet where he slapped her once then hit her with a rifle butt, knocking her out.²⁷⁷

197. The people who were brought to the camp were primarily Muslims. They included infirm people who suffered from various diseases and illnesses.²⁷⁸ Habiba Hadzic testified that two men died because they were not given medical care.²⁷⁹ Habiba Hadzic lost weight²⁸⁰ at the camp because the limited food that was given to the detainees was foul and indigestible.²⁸¹

198. Sleeping conditions at the camp were described as horrendous or awful. The detainees were made to sleep cramped together on the bare concrete floor of the hangar or wooden boards. Those lucky enough to be sleeping on the wooden boards could find themselves on the bare concrete because when the Accused was angry, he would have the wooden boards removed from the hangar.²⁸²

199. In the hangar building, the stench was terrible.²⁸³ The detainees were unable to wash themselves or their clothes.²⁸⁴ In addition, the detainees had no access to hygiene products.²⁸⁵

     (ii) Long term effects of the conditions in the camp

200. The effects of Susica did not end once a detainee left the camp.²⁸⁶ Many of the then detainees suffer to this day from the lasting not only physical effects of the treatment they received at the hands of the Accused or by his will. Witness SU-115 lost some of her teeth after having them kicked out at Susica and she “still suffer[s] [the] consequences of the beating”²⁸⁷ she received at the camp. Habiba Hadzic has constant pain in her elbow and is unable to take a bath without assistance due to a wound inflicted by the Accused with a rifle butt.²⁸⁸

201. The emotional effects of Susica on the detainees are in some cases more permanent than the physical effects. Witness SU-115 stated additionally:

     By witness[ing] all of the torture and killings that happened next to me at the camp I was being mentally tortured and I suffers physiologically of the memories and back flashes. When I thinks of what happened to people in Susica, how they were beaten and killed I often cries and had to take medicine. […]²⁸⁹

202. Witness SU-230 recalled:

     During my stay in Susica I eye witnessed how my good friends and neighbours were tortured and murdered by Dragan Nikolic and other Serbs. The inhumane living conditions in the camp was awful and everyone detained lived with a fear of being killed or tortured. […] I am trying to hold back what I experienced but from time to time I have flash backs of what happened. Very rarely I am able to have a full night sleep. I often have nightmares of my experiences […]²⁹⁰

203. Witness SU-032, who was sexually assaulted at the camp, testified about what she felt after the assault and what effect the assault made on her son:

     I felt miserable, degraded. I wanted to be a good mother, the best I could. I wanted my child to grow up in a beautiful family, but that couldn’t be any more. I felt humiliated as a woman and as a mother by the very fact that I was there in that camp in that situation. […] It’s been 11 years now, but my son is still pensive, introverted, sad and he knows what had happened to me. He is withdrawn. He doesn’t like talking to anyone. He's sad. He often tells me that he doesn't like living anymore. He tells me that he often thinks of suicide. […] [He] was eight years old when we arrived at the camp.²⁹¹

204. Aside from her physical pain, Habiba Hadzic continues to suffer from the time she spent in the camp:

     There are two wounds […] there: [s]adness, pain, everything I went through in the camp. My children were innocent and they lost their lives. They were killed. […] I have nothing to hope for. This mother cannot take it much longer. You will see. I will die of sadness and sorrow. My husband is also sick and he cries often. He hides from me when he cries, but then I follow him and then we cry. What can we do?²⁹²

205. In the expert statement psychotherapist Maria Zepter makes the following observation, which, although not related to this specific case, is generally applicable to the impact of similar detention on detainees:

     I have counselled detainees who experienced all kinds of atrocities and trauma due to physical abuse, psychological and sexual torture, hunger, beatings, rapes, sexual abuse, forced masturbation, hunger, deprivation of food and hygienic conditions. Detainees were often traumatised because they were forced to watch other detainees, whom they knew well, being beaten, tortured or executed.

     […]

     In my professional opinion, detainees who saw other detainees being murdered or executed suffer severe post-traumatic disorders.

     […]

     The immediate effect on detainees of being held at a camp, and realising that random violence could be inflicted on one person then another, included feelings of shock, extreme anxiety and fear of death, extreme helplessness and powerlessness, humiliation, shame and fear of what might happen to the relatives at home.²⁹³

     (d) Multiple Victims

206. Although most of the detainees were not direct victims of the Accused’s brutal acts of murder, torture and sexual violence as described above, each and every detainee of the camp was an immediate victim of the more insidious forms of abuse, specifically the inhumane living conditions and the atmosphere of terror created by the murders, beatings, sexual violence and other mental and physical abuse.

207. Those who were not in a position to see what was happening in and outside the hangar could hear what was happening²⁹⁴. Habiba Hadzic testified that:

     For instance, in the evening, when a white van would come to collect people, people would be loaded inside. You would hear orders, “Remove this. Remove that. Take this knife away. Throw it onto the ground.” You would hear those orders.²⁹⁵

208. The Trial Chamber is convinced that when detainees were beaten outside the hangar at the “A-pole” or when detainees were beaten or “punished” in the “punishment corner” of the hangar, all the detainees, from the very young to the elderly, knew what was happening, heard what was happening and were affected by it. Witness SU -202 testified how he was an eye witness to the beating and killing of Durmo Hand zic and Asim Zildzic:

     They [Dragan Nikolic, Tesic, nicknamed Goce, a man called Djuro and some soldiers] were all there, at A [pole], that is where the shovels were and the bucket. That is for fire emergencies. And then I saw Dragan beating them with a truncheon and others used handles.

     […]

     That's where they beat them, and then we carried them from there into the hangar. They were wet because they were throwing water on them, and they had all passed out.

     […]

     Asim lived for about 40 minutes after the beating, and then he died; whereas Durmo died the next day, around 2.00 because of the beating.²⁹⁶

209. Witness SU-032 testified that when Dragan Nikolic would beat Fikret Arnaut “(w(e were all watching, the children and grown-ups saw him, and we thought the same might happen to us.”²⁹⁷

     (e) Victims known by the Accused

210. Muslims from the municipality of Vlasenica accounted for a large proportion of the thousands of detainees that passed through Susica camp. The Accused had lived most of his life up until the war in the town of Vlasenica.²⁹⁸

211. Witness SU-202, a former detainee of Susica camp, described his prior relationship with the Accused: “We lived together in the same town. We were born there, grew up there. We saw each other every day.”²⁹⁹ Witness SU-202 testified that he dug a grave for and buried the Accused’s late father and while in Susica camp the Accused told him: “(N(obody is going to have any privileges here, you included.”³⁰⁰

212. The Trial Chamber agrees that under certain circumstances the knowledge of or even the friendship with a victim may amount to an aggravating factor. However, in the absence of more detailed facts about individual relationships, the Trial Chamber cannot base conclusions to the detriment of Dragan Nikolic solely on these limited findings.
     3. Conclusion

213. In conclusion, evaluating the abovementioned circumstances, the Trial Chamber accepts the following factors as especially aggravating:

     (i) The acts of the Accused were of an enormous brutality and continued over a relatively long period of time. They were not isolated acts. They expressed his systematic sadism. The Accused apparently enjoyed his criminal acts.

     (ii) The Accused ignored the pleadings of his brother to stop.

     (iii) The Accused’s role was one of a commander in the camp and the Accused knowingly abused that position.

     (iv) The Accused abused his power especially vis à vis the female detainees in subjecting them to humiliating conditions in which they were emotionally, verbally and physically assaulted and forced to fulfil the Accused’s personal whims, inter alia, washing and putting cream on his feet for his personal refreshment or having to relieve themselves in front of everybody else in the hangar.

     (v) Beatings were placed in the Indictment under the charge of torture. Due to the seriousness and particular viciousness of the beatings, the Trial Chamber considers this conduct as being at the highest level of torture, which has all of the making of de facto attempted murder.

     (vi) The detainees were particularly vulnerable and treated rather as slaves than as inmates under the Accused’s supervision.

     (vii) Finally, the high number of victims in Susica camp and the multitude of criminal acts have to be taken into account.

214. In conclusion, taking into consideration only the gravity of the crime and all the accepted aggravating circumstances, the Trial Chamber finds that no other punishment could be imposed except a sentence of imprisonment for a term up to and including the remainder of the Accused’s life. There are, however, mitigating circumstances to which the Trial Chamber will now turn.
     B. Mitigating circumstances

215. The Prosecution submits that “mitigating circumstances relate to the assessment of a penalty but do not derogate the gravity of the crime” and that “it is more a matter of grace than defence.”³⁰¹

216. The Defence advocates that “due consideration is given to those elements that are not commonplace but, more particularly, that there is especial recognition of those mitigating elements which are of the greatest importance in international/ criminal law in general and the objectives of the International Criminal Tribunal for the Former Yugoslavia in particular.”³⁰² With reference to the Article 42(2) of the Criminal Code of the SFRY the Defence submits that “the judge may determine whether there are mitigating circumstances which are such that they indicate that the objective of the sentence may be achieved equally well by a reduced sentence.”³⁰³

217. The Trial Chamber will give consideration to all mitigating factors presented by the Parties, but will focus in the now following discussion in greater detail on four factors of special importance, namely (i) the plea agreement and guilty plea, (ii) remorse, (iii) reconciliation and (iv) substantial co-operation with the Prosecution.
     1. Plea Agreement and Guilty Plea

     (a) Submissions of the Parties

218. The Prosecution submits that “Dragan Nikolic has voluntarily entered into a plea of guilty prior to the commencement of trial proceedings”,³⁰⁴ although not at the very first opportunity available.³⁰⁵ It continues by saying that the Accused “was aware of an indictment against him”, but entered a plea of guilty “at least two to three years later”.³⁰⁶ The Prosecution points out that “a guilty plea is usually to be regarded as a circumstance in mitigation of sentence because it may save the victims and witnesses from having to give evidence”, thus saving “considerable time, effort and resources”. It notes, however, that the guilty plea was made “after Prosecution witnesses, scheduled to give deposition evidence had arrived at the Tribunal.”³⁰⁷ The Prosecution also argues that a guilty plea is “always important for the purpose of establishing the truth in relation to a crime and preventing all forms of revisionism.”³⁰⁸

219. As regards the plea agreement as such, the Prosecution stresses two points: first, the Accused pleaded guilty to a “refined indictment” and that this process of refinement “has accrued to the benefit of the Defence”; and second, the guilty plea was entered by the Accused in the terms of the plea agreement.³⁰⁹

220. The Defence submits that “the primary factor to be considered in mitigation ” is the “decision to enter a guilty plea” by the Accused.³¹⁰ According to the Defence, “most mature national legal systems promote the admission of guilt in part by a recognizable reduction in sentence.”³¹¹ The Defence also refers to the previous jurisprudence of this Tribunal, where “a guilty plea gave rise to a reduction in the sentence” for the following reasons:

     a. An admission of guilt demonstrates honesty and it is important for the International Tribunal to encourage people to come forth, whether already indicted or as unknown perpetrators.
     b. A guilty plea contributes to the fundamental mission of the Tribunal to establish the truth in relation to crimes subjected to its jurisdiction.
     c. An admission of guilt and acceptance of the facts provides a unique and unquestionable fact-finding tool that greatly contributes to peace-building and reconciliation among the affected communities. Individual accountability which leads to a return to the rule of law, reconciliation, and the restoration of true peace across the territory of the former Yugoslavia is an integral part of the mission of this Tribunal. […]
     d. A plea of guilt contributes to public advantage and the work of the Tribunal by providing considerable saving of resources for, inter alia, investigation, counsel fees and the general costs of a trial. […]
     e. An admission of guilt may in the case of some victims and witnesses relieve them from the stress of giving evidence.³¹²

221. The Defence submits that an accused entering a guilty plea before the commencement of the trial “will usually receive full credit for that plea” because it contributes to the public advantage and the work of the Tribunal.³¹³

222. The Defence argues that the guilty plea demonstrates the Accused’s honesty, self-awareness and personal rehabilitation and responsibility for his actions. Moreover, the Accused accepts the need for punishment and expresses remorse.³¹⁴ The increased value of this acceptance of responsibility is strengthened by the fact that the Accused is the only person from the area of Vlasenica who was brought to the Tribunal, whereas many others “who are at least as culpable as Dragan Nikolic” are still at large.³¹⁵

223. The Defence argues that the Accused’s guilty plea “allows for the vital, indeed essential, element of reconciliation between the Muslim and Serb community”³¹⁶ and thus “extends to the core mission of the Tribunal – to restore peace and security to the region”.³¹⁷ The Defence further argues that “[f]inding people guilty who obdurately refuse to accept it, is of extraordinarily limited potential for reconciliation.”³¹⁸ Therefore, it is essential for the Tribunal to establish the conditions where people can plead guilty when confronted with the evidence of their own actions, and where they can have “the inherent integrity to meet up to their faults and their responsibilities ”.³¹⁹

224. The Defence refutes the argument that the “late” plea of guilty could be “detrimental ” to the Accused.³²⁰ It submits that the Accused has pleaded guilty to the entire indictment and “has not sought to plead to less” or contest his guilt, and therefore this case can not be regarded as a plea bargain.³²¹ It argues that although the indictment was reduced from 88 counts to four, “the gravity of the offences is equally contained within those four counts as it was within the original 88”.³²²

225. Finally, the Defence concludes by stating:

     It is submitted that the fact of pleas of guilty and the recognition of culpability and contrition that that involves, coupled with the desire to, and effect of, genuine subsequent co-operation with the prosecuting authorities to make their task easier is of vital importance to the aims of the ICTY in particular and the promotion of international criminal law in general. It is submitted that such an attitude needs to be encouraged, and actively be seen to be encouraged, by a substantial reduction in any sentence in recognition of the value of admission and co-operation and, vitally, the promotion of such recognition in the eyes and acts of other accused persons.³²³

     (b) Discussion

226. In order to make an assessment of the mitigating effect of the guilty plea, the Trial Chamber turns first to a discussion of the concept of the guilty plea or confession in different legal jurisdictions, basing its analysis on the Country Reports submitted by the Max Planck Institute.³²⁴ Thereafter, the Trial Chamber will analyse the relevant jurisprudence of the Tribunal and the ICTR.

     (i) Analysis of the country reports submitted by the Max Planck Institute

227. In those countries where a guilty plea is provided by law or exists in practice, it is accepted as a mitigating factor leading to a reduction of the sentence up to the following level: in Canada, within the sentencing range of each offence;³²⁵ in China, either within the lower part of the prescribed sentencing range or even under this range;³²⁶ in England, up to one-third of a sentence;³²⁷ in Poland, up to the level agreed between the parties, but applicable only for misdemeanors when the penalty does not exceed ten years of imprisonment;³²⁸ in Russia, by one-third, but only for crimes for which the punishment does not exceed ten years of imprisonment;³²⁹ in the United States, a decrease of the offense level by two levels for the acceptance of responsibility, and additionally by one level for timely provision of complete information to the government concerning the offender’s involvement in the offense or timely notification to the authorities of the intention to enter a plea of guilty.³³⁰ However, in the majority of the countries covered by the study a guilty plea does not affect the maximum statutory penalty and does not apply for serious cases, e.g. first degree murder.³³¹

228. There are primarily pragmatic grounds for reducing the sentence if a guilty plea results from the willingness of an offender to co-operate in the administration of justice.³³² Additional justifications for a reduction are remorse, acknowledgment of responsibility, and sparing the victims from testifying and being cross-examined.³³³ In considering the reduction of a sentence, the relevant factor is the stage of proceedings at which the offender pleads guilty³³⁴ and the circumstances in which the plea is tendered³³⁵.

229. Similar provisions on guilty pleas or plea bargaining exist in other countries examined, e.g., Argentina,³³⁶ Brazil,³³⁷ Chile,³³⁸ and Italy.³³⁹ However, these provisions are usually applicable for minor crimes and therefore cannot be taken into account in the present case. In Germany, a “consensual solution” (Verständigung im Strafverfahren) takes place only under the control of the Judge(s) in order to avoid any abuse or unsupported confession.³⁴⁰

230. In some countries under survey, the mere confession – as opposed to a guilty plea that enables the Trial Chamber immediately to enter a finding of guilt and to instruct the Registrar to set a date for the sentencing hearing without any further trial proceedings – is regarded as a mitigating factor. In Belgium, a voluntary confession, if accepted by the court, leads to a mandatory reduction of the sentencing range.³⁴¹ In Chile, a confession is a mitigating factor if the responsibility of the accused could only be established through his spontaneous confession or because he collaborated in the interests of justice.³⁴² In Finland, any effort of the accused to cooperate with the judicial organs in order to help solving the crime itself and/or its consequences might be taken into account as a mitigating factor.³⁴³ In Germany, a credible confession, even if not made out of genuine feelings of remorse and guilt, but supplied for tactical reasons at trial, must be considered as mitigating in every case, although not necessarily “significantly mitigating”.³⁴⁴ In Spain, a confession by the perpetrator prior to knowing that legal proceedings are being taken against him, or attempts at restitution before or during the procedure are regarded as mitigating factors.³⁴⁵ In Sweden, a confession after apprehension can only attract mitigation if there is another factor requiring a milder sentence.³⁴⁶ In Greece, a confession as such is not recognized as a mitigating factor, although it may be indirectly taken into account in the court’s assessment of the Accused’s showing of remorse and willingness for reparation.³⁴⁷

     (ii) Jurisprudence of the International Tribunals

231. In the jurisprudence of the Tribunal and the ICTR, several reasons have been given for the mitigating effect of a guilty plea, such as the showing of remorse ³⁴⁸ and repentance,³⁴⁹ the contribution to reconciliation³⁵⁰ and establishing the truth,³⁵¹ the encouragement of other perpetrators to come forth,³⁵² and the fact that witnesses are relieved from giving evidence in court.³⁵³ Furthermore, Trial Chambers took into account that a guilty plea saves the Tribunal the “effort of a lengthy investigation and trial”,³⁵⁴ and special importance was attached to the timing of the guilty plea.³⁵⁵

     (c) Conclusion

232. The Trial Chamber accepts that a guilty plea has to be taken into account for mitigation when considering an appropriate sentence since it reflects the accused’s acceptance of responsibility for his crimes. In most of the national jurisdictions outlined above, a guilty plea or confession mitigates the sentence. However, the mitigating effect is limited to less serious crimes in jurisdictions where the courts are obliged to apply a maximum statutory penalty for serious crimes.

233. The Trial Chamber finds that, in contrast to national legal systems where the reasons for mitigating a punishment on the basis of a guilty plea are of a more pragmatic nature,³⁵⁶ the rationale behind the mitigating effect of a guilty plea in this Tribunal is much broader, including the fact that the accused contributes to establishing the truth about the conflict in the former Yugoslavia and contributes to reconciliation in the affected communities. The Trial Chamber recalls that the Tribunal has the task to contribute to the “restoration and maintenance of peace” and to ensure that serious violations of international humanitarian law are “halted and effectively redressed”.³⁵⁷

234. Having been arrested in 2000, Dragan Nikolic pleaded guilty only after three years of detention and just prior to the hearing of the testimonies by six deposition witnesses, some of whom were very old and in poor health. However, the Trial Chamber holds that an accused is under no obligation to plead guilty and finds that the “lateness” of Dragan Nikolic’s guilty plea can not be considered to be to his detriment. In contrast, his “late” change to a plea guilty, i.e. 11 years after commission of the crimes, could be regarded as a consequence of a thorough analysis and reflection by the Accused of his criminal conduct, which reveals his genuine awareness of his guilt and a desire to assume responsibility for his acts. The Accused confessed to Dr. Grosselfinger and to his close relatives that after pleading guilty he felt relieved, and that a burden he had been carrying was gone.³⁵⁸ Moreover, by pleading guilty prior to the commencement of the trial the Accused relieved the victims of the need to open old wounds.³⁵⁹

235. Dragan Nikolic has pleaded guilty to the entire indictment. The importance of this fact is strengthened by the consideration that this is the first case at this Tribunal in which the events in Susica camp have been recounted. In this respect the Trial Chamber recalls what Dragan Nikolic declared in his final statement:

     […] I am fully aware of all the things with which I am charged. I am aware of the acts that I have committed, and I confess to them count by count as they were read out to me here. I pleaded guilty and I assume full responsibility for the acts that I have committed.

     […]

     […] I genuinely feel shame and disgrace. […] The question arises why did I do all that? I had enough time to think about it, 11 years. But it is still hard to find an answer to that question. I can tell you with complete sincerity I never felt sorry for myself because I was not too young to understand at the time […].³⁶⁰

236. This is also pointed out by Dr. Grosselfinger who states that Dragan Nikolic “did not attempt to avoid responsibility or taking responsibility”,³⁶¹ that he really could not explain to himself why he did it, and that he agreed that “he had done it, but that it represented a dark side of his character which he did not know previously had existed”.³⁶² Moreover, he accepted responsibility entirely and in “a faithful presentation”.³⁶³ She thinks that Dragan Nikolic was open and truthful with her.³⁶⁴

237. Therefore, the Trial Chamber recognises the importance of Dragan Nikolic’s guilty plea as an expression of his honesty and readiness to take responsibility, and coupled with his expression of remorse and his co-operation with the Prosecution, as a contribution to reconciliation in Vlasenica municipality. As remorse and the contribution to reconciliation are two specifically important mitigating factors, the Trial Chamber now turns to these two factors in greater detail.
     2. Remorse

     (a) Submissions of the Parties

238. The Prosecution’s submission is that “genuine remorse may be a mitigating factor”.³⁶⁵ The Prosecution notes that “Dragan Nikolic does express remorse in the court-ordered criminologist’s report”³⁶⁶ and that he expresses his remorse, his guilty feeling, his desire to tender an apology in the interviews with Dr. Grosselfinger.³⁶⁷

239. The Defence submits “[r]emorse is a mitigating factor, if the Trial Chamber is satisfied that the expressed remorse is sincere,” which is not doubted in the present case.³⁶⁸ According to the Defence, “the element of remorse is well founded and genuine.”³⁶⁹

240. The Defence further argues that Dragan Nikolic expressed remorse not only “ in the narrow sense” by admitting his personal guilt, but that he attempts to give effect to the process of co-operative reconciliation, which is an essential prerequisite for the fuller remorse.³⁷⁰ These two factors underscore the view formed by Dr. Grosselfinger that Dragan Nikolic “was being honest and straightforward”.³⁷¹ The Defence relies upon her opinion as highly qualified, mature and experienced professional.³⁷²

     (b) Discussion

241. The Trial Chamber accepts that remorse was shown during the sentencing hearing. The Trial Chamber recalls, in particular, the following statement by the Accused :

     I repent sincerely […]. I genuinely repent. I am not saying this pro forma, this repentance and contrition comes from deep inside me, because I knew most of those people from the earliest stage. […] I want to avail myself of this opportunity to say to all of those whom I hurt, either directly or indirectly, that I apologise to everyone who spent any time in Susica, be it a month or several months. I would like, now that I have this opportunity to speak in public, to make even those victims feel the sincerity of my apology and my repentance, even those who were never at the Susica camp and who are now scattered all over the word as a result of that conflict and the expulsions which made it impossible for them to return home.³⁷³

242. The Trial Chamber accepts his expression of remorse as one mitigating factor among others.
     3. Reconciliation

     (a) Submissions of the Parties

243. The Prosecution submits that reconciliation is “a major factor” and that it was taken into account when considering the sentencing principles and recommendation.³⁷⁴

244. The Defence states that “[v]ictims may get some satisfaction out of seeing people punished, but it does not go very much further than that”³⁷⁵ hereby arguing that a harsher punishment does not necessarily contribute to more reconciliation. The Defence points out that the Accused has contributed to reconciliation primarily through his co-operation with the Prosecution.³⁷⁶

     (b) Discussion

245. The Trial Chamber partly concurs with the submission of the Defence that too harsh or too lenient a sentence would have a counter-productive effect on the communities concerned. No doubt, the attempt to achieve reconciliation can only be fostered if the punishment, as it has always to be, is proportionate to the gravity of the crime. The limited contribution of the punishment to reconciliation, however, was highlighted by victims and their relatives who were heard during the sentencing hearing.³⁷⁷

246. The Trial Chamber nevertheless accepts that by admitting guilt and responsibility the Accused contributes to reconciliation. The importance of the acceptance of responsibility in the process of reconciliation was expressed by Witness SU-230, who stated:

     I would like to say to that in Vlasenica are still another 50 Dragan Nikolic that have to admit their guilt of what happened there. They have to surrender and take responsibility of what they did to us. A sincere reconciliation is not possible as long as they are pretending that nothing happened. Dragan Nikolic know(s( personally every single one of those who committed the crimes.³⁷⁸

247. The Accused was asked by Habiba Hadzic whether or not he could provide information on the whereabouts of both her sons whom she last saw at Susica camp and who have been missing since then. The Accused satisfied her request after consultation with counsel by answering to the best of his knowledge on that issue³⁷⁹ and additionally stated:

     Even earlier I expressed my desire to meet certain persons, including victims, and people like Mrs. Hadzic in order to provide them with some of the information that I have and tell them what I know. Certain things I only heard about, and other things I know for a fact. […] I wanted to tell this lady even before, but the circumstances were not favourable. I wanted to speak to her even before this, because I knew that she was anxious to know the fate of her sons, as some other people were to find out about their relatives.³⁸⁰

248. The Trial Chamber considers this fact as an attempt to achieve reconciliation by the Accused and his readiness and willingness to contribute to the truth-finding mission of the Tribunal.

249. Moreover, in his final statement the Accused expressed the hope that all three parties to the conflict would be encouraged by his confession to assume their part of the responsibility for the terrible crimes because “that […] is the only thing that would make it possible for people to become close again […] in those parts. It should be clear to all of us that we are after all an important factor in this reconciliation and peaceful coexistence.”³⁸¹

250. Finally, the Accused concluded:

     I hope I will get a chance to redeem myself and to alleviate their suffering. […] [M]ere words are not enough. Acts are needed, and I do intend to act for reconciliation for the return of those people who were displaced and expelled. That is my deepest wish.³⁸²

251. This was in fact confirmed by Dr. Grosselfinger, who stated that the Accused acknowledged the extreme gravity of the crimes and expressed concern that his attempts to serve the victims would be too late and too little and might be seen as disingenuous, self-seeking and self-serving.³⁸³ Dr. Grosselfinger reported that he also expressed his willingness to meet and talk to the victims “at a time when it would not advantage him in any legal way”,³⁸⁴ and he offered to contact persons who were friendly towards him and elicit their mediation in approaching others in order to “repair the social fabric”.³⁸⁵

252. The Trial Chamber opines that these statements, confirmed by Dr. Grosselfinger, are a strong recognition by the Accused of the importance of his admission of guilt, and that they serve well as another example of his willingness to contribute to the peace-building process and reconciliation in his region. Therefore, the Trial Chamber takes this into account for mitigation.
     4. Substantial Co-operation with the Prosecution

     (a) Submissions of the Parties

253. The Prosecution submits that “substantial co-operation with the Prosecutor before or after conviction is a mitigating factor.”³⁸⁶ By referring to the test established in the Blaskic Trial Judgement that the substantial co-operation “depends on the extent and quality of the information he provides”, the Prosecutor submits that she “recognises that after, not before his guilty plea, Dragan Nikolic has given substantial co-operation.”³⁸⁷ The evaluation by the Prosecution of the “extent and quality of the information” provided by the Accused was summarised as follows:

     Although the Accused was not questioned at any length with regards to his criminality as charged in the indictment, when discussed, he did not resile from his previously admitted guilt. The Accused provided detailed and extensive information about crimes and perpetrators in his municipality, as well as their relationship to leadership figures and objectives. Such information is not typically accessible except through a participant in the process and the Accused’s testimony is expected to be of unique and considerable value in future cases. The Prosecution also notes that the Accused provided the information in a forthcoming and co-operative manner. Based on the quality and quantity of the information the Accused has provided, the Office of the Prosecutor is of the view that his co-operation has and will be substantial.³⁸⁸

254. The Prosecution finally submits that this “very significant factor” was one of the conditions “attached to the recommendation that was made by the Prosecution.”³⁸⁹

255. The Prosecution states that the co-operation of the Accused with the Prosecution started after the plea agreement, whereas before there was no “co-operation” as such, but rather “a cordial relationship”, without antagonism or contention.³⁹⁰

256. The Defence submits that the co-operation is “extensive, genuine and on going” and that “substantial co-operation with the Prosecutor will mitigate penalty and will do so irrespective of the motives behind the co-operation”.³⁹¹

257. The Defence submits that:

     The defendant has at all times in his dealings with the OTP through his representatives always done his best to be reasonable and cooperative. That included giving lengthy interviews under caution in 2001/2 when he was not obliged so to do and could not have been validly criticized for failing to do, the indictment already having been drafted and he having already been arraigned.³⁹²

     (b) Discussion

258. The Trial Chamber requested the Prosecution to provide the documents that would enable the Trial Chamber to review them in camera in order to assess if the Accused’s co-operation with the Prosecution could be regarded as being substantial.³⁹³ The Prosecution provided the transcripts of two days of interviews held with the Accused on 25 and 26 September 2003, the contents of which “would illustrate the type of co-operation that the Accused offered”. In all, as was stated by the Prosecution, ten days of interviews were conducted.³⁹⁴

259. After having reviewed the documents in camera, the Trial Chamber is not able to judge whether or not the co-operation provided by the Accused was substantial. The transcripts of interviews with the Accused provided by the Prosecution, taken out of the context of the entire testimony, present only a part of his testimony and are therefore difficult to assess, especially in their ambiguity. The Trial Chamber is not seized with the question whether or not the accused was involved in other crimes not mentioned in the Indictment, but forming part of the information provided to the Prosecution. Applying, inter alia,³⁹⁵ the principle in dubio pro reo, this Trial Chamber does not regard this information, obtained in camera only, to the detriment of the Accused. However, even this small portion of testimony shows that information provided by Dragan Nikoli c will assist the Prosecutor of the ICTY and prosecutors of the yet to be established war crimes chambers in his home country. Furthermore, the Trial Chamber relies upon the Accused’s continued co-operation with the Prosecution of the ICTY and of the home country. The latter fact no doubt has to have a substantial impact on the question of early release.

260. Therefore, the Trial Chamber accepts that the Prosecution is satisfied that the Accused’s co-operation until now was substantial and considers this factor as being of some importance for mitigating the sentence, especially since the information about Susica camp and Vlasenica municipality was heard for the first time before this Tribunal. Thus, the Accused has contributed and will contribute to the fact -finding mission of the Tribunal and the to be established war crimes chambers in his home country.
     5. Joint Submission of the Parties on the Personality and Character of Dragan Nikolic

261. The Prosecution submits that “Article 24(2) of the Statute allows the personal status of the accused to be taken into account in determining the sentence”.³⁹⁶ The Prosecution submits that “the sanction must fit the crime’s perpetrator and not merely the crime itself.”³⁹⁷

262. The Prosecution is not contesting that “before the war, Dragan Nikolic was a gainfully employed resident of Vlasenica who was well-liked by many of the victims ” and “participated in no illegal conduct in Vlasenica prior to his position at the camp.”³⁹⁸ However, the Prosecution submits that the previous character of Dragan Nikolic and the evidence presented thereof, i.e. that the Accused “had no propensity to violence previously”, is “of not great value”.³⁹⁹

263. The Defence submits that before the war Dragan Nikolic was “an ordinary man leading an ordinary life”, with no criminal record, well-liked, a friendly person with friends from both sides of the community.⁴⁰⁰ “[H]e found himself effectively in the wrong place at the wrong time, and he can now not understand what it was that caused him to commit those horrid acts.”⁴⁰¹ The Defence submits that now he has “come back to the man he was before”.⁴⁰²

264. The Trial Chamber notes the testimony of Defence witnesses who testified that before the war Dragan Nikolic was a person “not inclined to violence” and causing no incidents. He also associated with persons of all nationalities and religious beliefs.⁴⁰³ He was a responsible and conscientious worker.⁴⁰⁴ As regards his post criminal behaviour, nothing negative has been noted. He was of great help to his mother and provided her with financial support.⁴⁰⁵

265. The Accused has no previous criminal record,⁴⁰⁶ a factor to be taken into account for mitigation.

266. Although the behaviour of the Accused in the camp was in general extremely cruel, there were some, however limited, positive aspects in his behaviour, which the Trial Chamber will not hesitate to mention. Habiba Hadzic testified about some positive acts by the Accused in Susica camp. On one occasion she found a pillow that she wanted to deliver to a baby in the camp. Car, a camp guard, stopped her and ordered her to go to his car. She thinks that Car wanted to take her to his car and kill her. Dragan interfered: “What do you mean? A baby needs a blanket and a pillow? Well, let her take it.” It is her view that the Accused saved her life on this occasion. He also allowed the baby to have that pillow.⁴⁰⁷ Additionally, the Trial Chamber heard her testimony that the Accused would often get milk from a neighbour and distribute it to the children in the camp.⁴⁰⁸ The Accused would also permit the detainees to receive food that was sometimes brought to the camp. Veljko Basic would prevent it, but as soon as he was gone Dragan Nikolic would order that the food be given to those for whom it had been brought. Dragan Nikolic would say: "Wait for him to leave and then take this food."⁴⁰⁹

267. The Trial Chamber will consider these positive sides of the Accused’s behaviour when finally determining the sentence.

268. The Trial Chamber will also take into account the behaviour and demeanour of Dragan Nikolic at the UNDU, which was described in the Grosselfinger Report:

     McFadden [Head of the UNDU] indicated Nikolic had not been a problem detainee. His physical and mental health was relatively good and he had not distinguished himself in any negative way.⁴¹⁰

     6. Length of Proceedings / Time Between Crime and Judgement

269. The problem arising from lengthy court proceedings and the long period of time between the criminal conduct and its subsequent trial, has been discussed by the European Court of Human Rights, as well as in decisions of several national courts.⁴¹¹ Common to all leading decisions is that any disproportionate length of procedures may be considered as a mitigating factor in sentencing.

270. However, in most of the cases it was held that, in light of Article 6 (1), sentence 1 of the [European] Convention for Protection of Human Rights and Fundamental Freedoms of 4 November 1950 (hereinafter “ECHR”), the “reasonable time” requirement generally comprises solely the time frame starting from the indictment and/or arrest of the accused, and ending with a legally binding, final decision of the court.⁴¹² Moreover, it has been held that the violation of the accused’s basic right to a fair and speedy trial should only be remedied and compensated if the perpetrator is not himself responsible for the delay of the proceedings.⁴¹³

271. In the present case the Accused was already well informed about the indictment against him at the end of 1994 or beginning of 1995, of course not having any obligation to surrender voluntarily to this Tribunal.⁴¹⁴ The Accused was apprehended by SFOR only in the year 2000.⁴¹⁵ Taking into account, inter alia, the lengthy period of time necessary for preparing and deciding his motions on jurisdiction,⁴¹⁶ the time spent in the United Nations Detention Unit cannot be regarded as disproportional.

272. In a case of murder recently decided by the German Federal Supreme Court, reference was made to the length of the time span between the criminal conduct and the subsequent judgement as a possible mitigating factor. However, it was emphasised by that court that due to the seriousness of the crimes committed during World War II in 1943- 44 by a former camp commander, now 90 years old, extraordinary circumstances mitigating the accused’s guilt were not applicable.⁴¹⁷

273. Therefore, the Trial Chamber concludes that neither the length of time between the criminal conduct and the judgement nor the time between arrest and judgement can be considered as a mitigating factor.
     7. General Conclusion

274. Considering all the above-mentioned mitigating circumstances together and giving particular importance to such factors as the guilty plea, expression of remorse, reconciliation and the disclosing of additional information to the Prosecution, the Trial Chamber is convinced that a substantial reduction of the sentence is warranted.
     IX. DETERMINATION OF SENTENCE
     A. Submissions of the Parties

275. The Prosecution had recommended a term of imprisonment of fifteen years,⁴¹⁸ with the caveat that the recommendation was contingent on the Accused’s “full and substantial co-operation with the Prosecutor’s investigations and prosecutions.”⁴¹⁹ The Prosecution later has acknowledged that the Accused has indeed co-operated in a substantial manner.⁴²⁰ Additionally, the Prosecution took into account such factors as reconciliation and individual rehabilitation when recommending the sentence.⁴²¹ The Prosecution maintained its prior recommendation during its closing arguments by stating:

     [W]e have recommended a term of 15 years that should be imposed on the Accused. [...] This is what is in the Plea Agreement and […] we stand by that recommendation.⁴²²

276. The Defence submits that “the Prosecutor has advocated a sentence to reflect the pleas and anticipated co-operation of the defendant”. Furthermore, the Defence argues that this sentence is “not the product of an arbitrary or immature consideration ” but one that has taken into account:

     a. The range of sentences passed at the ICTY following guilty pleas;

     b. The expected co-operation of the defendant;

     c. The essential desirability to encourage guilty pleas for jurisprudential, rehabilitative, resource and financial constraint purposes, particularly at this temporal point in the Tribunal’s mandate.⁴²³

277. Furthermore, the Defence argues that,

     [I]t is a recommendation that emanates from the consideration of the Prosecutor personally having made all necessary consultation with her staff. The recommendation is a consensual, sober and mature reflection of the desires of the Prosecutor being aware of all her rights, obligations and duties both to the Tribunal and to the international community at large and the former Yugoslavia in particular. In those regards it is submitted that it is a powerful indicator of the sentence that is deemed just by those responsible for executing the prosecutorial mandate of the Security Council of the United Nations in establishing the ICTY.”⁴²⁴

278. Finally, in its Addendum to the Defence Sentencing Brief, Defence it reiterates this position and adds:

     Allowing for lex mitior and proper and fair reductions for comprehensive guilty pleas, unique cooperation, remorse that goes to the heart of the requirements of reconciliation and the other matters advocated it is submitted that the sentence of 15 years posited by the Prosecutor is a proper sentence which would fall in the midrange of some sentencing brackets in some national jurisdictions according to the report and is consistent with sentences passed in other cases at the ICTY.⁴²⁵

     B. Discussion and Conclusion

279. The Trial Chamber is not bound by a recommended sentence specified in a plea agreement. The Accused was defended by a highly professional Defence Counsel and was explicitly cautioned by the Trial Chamber in open court that the Trial Chamber is not bound by the recommendation.⁴²⁶ The Accused understood the terms of the plea agreement and fully recognised his understanding and acceptance of the rule that the Trial Chamber is not bound by this recommendation and that the sentence has to be determined on the basis of the gravity of the crime and all relevant aggravating and mitigating factors.⁴²⁷

280. It has to be recalled that in absence of the mitigating factors discussed above the only possible sanction would have been imprisonment for a term up to and including the remainder of the Accused’s life.

281. Balancing the gravity of the crimes and aggravating factors against mitigating factors and taking into account the aforementioned goals of sentencing, the Trial Chamber is not able to follow the recommendation given by the Prosecution. The brutality, the number of crimes committed and the underlying intention to humiliate and degrade would render a sentence such as that recommended unjust. The Trial Chamber believes that it is not only reasonable and responsible, but also necessary in the interests of the victims, their relatives and the international community, to impose a higher sentence than the one recommended by the Parties.

282. The Trial Chamber is aware that from a human rights perspective each accused, having served the necessary part of his sentence, ought to have a chance to be reintegrated into society in the event that he no longer poses any danger to society and there is no risk that he will repeat his crimes.⁴²⁸ However, before release and reintegration, at least the term of imprisonment recommended by the Prosecutor has in fact to be served. In conclusion, the Trial Chamber finds that the sentence declared in the following Disposition is adequate and proportional.
     C. Credit for Time Served

283. Pursuant to Rule 101(C) of the Rules, “credit shall be given to the convicted person for the period […] during which the convicted person was detained in custody pending surrender to the Tribunal or pending trial or appeal.”

284. The Trial Chamber regards 20 April 2000, the date of the factual deprivation of liberty of the Accused, as the decisive date and recognizes that the Accused is entitled to credit for all the days since that day.
     X. DISPOSITION

     We, Judges 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 since 1991, established by United Nations Security Council Resolution 827 of 25 May 1993, elected by the General Assembly and mandated to hear this case against Dragan Nikolic and find the appropriate sentence,

     HAVING HEARD the guilty plea of Dragan Nikolic, and

     HAVING ENTERED A FINDING OF GUILT for the crimes contained in Counts 1 through 4 of the Third Amended Indictment,

     HEREBY ENTER A SINGLE CONVICTION against Dragan Nikolic for Count 1: Persecutions, a Crime against Humanity,

     incorporating

     Count 2: Murder, a Crime against Humanity,

     Count 3: Rape, a Crime against Humanity,

     Count 4: Torture, a Crime against Humanity,

     SENTENCE Dragan Nikolic to 23 years of imprisonment and

     STATE that Dragan Nikolic is entitled to credit for 3 years, 7 months and 29 days, as of the date of this Sentencing Judgement, calculated from the date of his deprivation of liberty, i.e. the twentieth of April 2000, together with such additional time as he may serve pending the determination of any appeal.

     Pursuant to Rule 103 (C) of the Rules, Dragan Nikolic shall remain in the custody of the Tribunal pending the finalisation of arrangements for his transfer to the State where his sentence will be served.

Done in English and French, the English text being authoritative.

_______________
Judge Wolfgang Schomburg,
Presiding

_______________
Judge Carmel A. Agius

_______________
Judge Florence Ndepele Mwachande Mumba

Dated this eighteenth day of December 2003
At The Hague
The Netherlands

[Seal of the Tribunal]

ALEKSOVSKI
Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-T, Judgement, 25 June 1999 (“Aleksovski Trial Judgement”).
Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-A, Judgement, 24 March 2000 (“Aleksovski Appeal Judgement”).

BANOVIC
Prosecutor v. Predrag Banovic, Case No. IT-02-65/1-S, Sentencing Judgement, 28 October 2003 (“Banovic Sentencing Judgement”).

BLASKIC
Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-T, Judgement, 3 March 2000 (“Blaskic Trial Judgement”).

“CELEBICI”
Prosecutor v. Zejnil Delalic, Zdravko Mucic, a.k.a. “Pavo”, Hazim Delic and Esad Landzo, a.k.a. “Zenga”, Case No. IT-96-21-T, Judgement, 16 November 1998 (“Celebici Trial Judgement”).
Prosecutor v. Zejnil Delalic, Zdravko Mucic, a.k.a. “Pavo”, Hazim Delic and Esad Landzo, a.k.a. “Zenga”, Case No. IT-96-21-A, Judgement, 20 February 2001 (“ Celebici Appeal Judgement”).

ERDEMOVIC
Prosecutor v. Drazen Erdemovic, Case No. IT-96-22-T, Sentencing Judgement, 29 November 1996 (“Erdemovic 1996 Sentencing Judgement”).
Prosecutor v. Drazen Erdemovic, Case No. IT-96-22-A, Judgement, 7 October 1997 (“Erdemovic Appeal Judgement”).
Prosecutor v. Drazen Erdemovic, Case No. IT-96-22-Tbis, Sentencing Judgement, 5 March 1998 (“Erdemovic 1998 Sentencing Judgement”).

FURUNDZIJA
Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-T, Judgement, 10 December 1998 (“Furundzija Trial Judgement”).
Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-A, Judgement, 21 July 2000 (“Furundzija Appeal Judgement”).

GALIC
Prosecutor v. Stanislav Galic, Case No. IT-98-29-T, Judgement, 5 December 2003 (“Galic Trial Judgement”).

JELISIC
Prosecutor v. Goran Jelisic, Case No. IT-95-10-T, Judgement, 14 December 1999 (“Jelisic Trial Judgement”).
Prosecutor v. Goran Jelisic, Case No. IT-95-10-A, Judgement, 5 July 2001 (“Jelisic Appeal Judgement”).

KORDIC AND CERKEZ
Prosecutor v. Dario Kordic and Mario Cerkez, Case No. IT-95-14/2-T, Judgement, 26 February 2001 (“Kordic and Cerkez Trial Judgement”).

KRNOJELAC
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement, 15 March 2002 (“Krnojelac Trial Judgement”).
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement, 17 September 2003 (“Krnojelac Appeal Judgement”).

KRSTIC
Prosecutor v. Radislav Krstic, Case No. IT-98-33-T, Judgement, 2 August 2001
(“Krstic Trial Judgement”).

KUNARAC, KOVAC AND VUKOVIC
Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, Case No. IT-96-23 & IT-96-23/1-T, Judgement, 22 February 2001 (“Kunarac et al. Trial Judgement”).
Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, Case No. IT-96-23 & IT-96-23/1-A, Judgement, 12 June 2002 (“Kunarac et al. Appeal Judgement”).

Z. KUPRESKIC, M. KUPRESKIC, V. KUPRESKIC, JOSIPOVIC, (PAPIC) AND SANTIC
Prosecutor v. Zoran Kupreskic, Mirjan Kupreskic, Vlatko Kupreskic, Drago Josipovi c, Dragan Papic and Vladimir Santic, a.k.a. “Vlado”, Case No. IT-95-16-T, Judgement, 14 January 2000 (“Kupreskic et al. Trial Judgement”).
Prosecutor v. Zoran Kupreskic, Mirjan Kupreskic, Vlatko Kupreskic, Drago Josipovic and Vladimir Santic, Case No. IT-95-16-A, Appeal Judgement, 23 October 2001 (“Kupreskic et al. Appeal Judgement”).

KVOCKA, KOS, RADIC, ZIGIC AND PRCAC
Prosecutor v. Miroslav Kvocka, Milojica Kos, Mlado Radic, Zoran Zigic and Dragoljub Prcac, Case No. IT-98-30/1-T, Judgement, 2 November 2001 (“Kvocka et al. Trial Judgement”).

NALETILIC AND MARTINOVIC
Prosecutor v. Mladen Naletilic and Vinko Martinovic, Case No. IT-98-34-T, Judgement, 31 March 2003 (“Naletilic and Martinovic Trial Judgement”)

M. NIKOLIC
Prosecutor v. Momir Nikolic, Case No. IT-02-60/1-S, Sentencing Judgement, 2 December 2003 (“Momir Nikolic Sentencing Judgement”).

OBRENOVIC
Prosecutor v. Dragan Obrenovic, Case No. IT-02-60/2-S, Sentencing Judgement, 10 December 2003 (“Obrenovic Sentencing Judgement”).

PLAVSIC
Prosecutor v. Biljana Plavsic, Case No. IT-00-39&40/1, Sentencing Judgement, 27 February 2003 (“Plavsic Sentencing Judgement”).

SIKIRICA, DOSEN AND KOLUNDZIJA
Prosecutor v. Dusko Sikirica, Damir Dosen, Dragan Kolundzija, Case No. IT -95-8-S, Sentencing Judgement, 13 November 2001 (“Sikirica et al. Sentencing Judgement”).

B. SIMIC, M. TADIC, S. ZARIC
Prosecutor v. Blagoje Simic, Miroslav Tadic, Simo Zaric, Case No. IT-95-9 -T, Judgement, 17 October 2003 (“Simic et al. Trial Judgement”).

M. SIMIC
Prosecutor v. Milan Simic, Case No. IT-95-9/2-S, Sentencing Judgement, 17 October 2002 (“Simic Sentencing Judgement”).

STAKIC
Prosecutor v. Milomir Stakic, Case No. IT-97-24-T, Judgement, 31 July 2003 (“Stakic Trial Judgement”).

D. TADIC
Prosecutor v. Dusko Tadic a.k.a. “Dule”, Case No. IT-94-1-T, Judgement, 7 May 1997 (“Tadic Trial Judgement”).
Prosecutor v. Dusko Tadic a.k.a. “Dule”, Case No. IT-94-1-T, Sentencing Judgement, 14 July 1997 (“Tadic 1997 Sentencing Judgement”).
Prosecutor v. Dusko Tadic, Case No. IT-94-1-A, Judgement, 15 July 1999 (“ Tadic Appeal Judgement”).
Prosecutor v. Dusko Tadic, Case No. IT-94-1-Tbis-R117, Sentencing Judgement, 11 November 1999 (“Tadic 1999 Sentencing Judgement”).
Prosecutor v. Dusko Tadic, Case No. IT-94-1-A and IT-94-1-Abis, Judgement in Sentencing Appeals, 26 January 2000 (“Tadic Judgement in Sentencing Appeals ”).

TODOROVIC
Prosecutor v. Stevan Todorovic, Case No. IT-95-9/1-S, Sentencing Judgement, 31 July 2001 (“Todorovic Sentencing Judgement”).

VASILJEVIC
Prosecutor v. Mitar Vasiljevic, Case No. IT-98-32-T, Judgement, 29 November 2002 (“Vasiljevic Trial Judgement”).

AKAYESU
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement, 2 September 1998 (“Akayesu Trial Judgement”).
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Judgement, 1 June 2001 (“Akayesu Appeal Judgement”).

RUGGIU
Prosecutor v. Georges Ruggiu, Case No. ICTR-97-32-I, Judgement and Sentence, 1 June 2000 (“Ruggiu Judgement and Sentence”).

SERUSHAGO
Prosecutor v. Omar Serushago, Case No. ICTR-98-39-A, Reasons for Judgement, 6 April 2000 (“Serushago Appeal Judgement”).

(a) ECHR

FRYDLENDER v. FRANCE
Frydlender v. France, Application No. 30979/96, § 43.

VASS v. HUNGARY
Vass v. Hungary, Application No. 57966/00, 25 November 2003.

FERRANTELLI AND SANTANGELO v. ITALY
Ferrantelli and Santangelo v. Italy, Application No. 19874/92, 7 August 1996.

(b) Domestic cases

BAKER v. WINGO
Baker v. Wingo, 407 U.S. 514 (1972), United States Supreme Court

DOGGETT V. UNITED STATES
Doggett v. United States (90-0857), 505 U.S. 647 (1992), United States Supreme Court

GREGG v. GEORGIA
Gregg v. Georgia, 2 July 1976 [428 U.S. 153].

R. v. ARKELL
R. v. Arkell, [1990] 2 S.C.R. 695.

R. v. BLOOMFIELD
R. v. Bloomfield, [1999] NTCCA 137.

R. v. MARTINEAU
R. v. Martineau, [1990] 2 S.C.R. 633.

R. v. M.(C.A.)
R. v. M.(C.A.), [1996] 1 S.C.R. 500.

BGHSt 43, p. 195 (198).

BGH, NStZ, 1986, pp. 217-218.

BGH, StV, 1992, p. 452.

BGH, 1 StR 538/01, Judgement of 21 February 2002, II, 4 b, p. 13

BVerfG, BVerfGE 45, 187 (245).

BVerfG, BVerfGE 45, 187 (255F).

BVerfG, BVerfGE 63, 45 (69).

BVerfG, BVerfGE 90, 145 (173).

BVerfG, 2 BvR 153/03, Decision of 25 July 2003, para. 33 33 <accessible through website http://www.bverfg.de>

Black’s Law Dictionary, 7th Ed. Appendix A (St. Paul, West Group, 1999).

John R.W.D. Jones/Steven Powles, International Criminal Practice, 3rd ed., Oxford (2003), 9.119.

Radke in Münchener Kommentar, Strafgesetzbuch, Vol. 1, §§1-51 (München, 2003 ).

Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), S/25704, 3 May 1993.

Security Council Resolution 827 (1993), S/3217, 25 May 1993.

According to Rule 2 (B), of the Rules of Procedure and Evidence, the masculine shall include the feminine and the singular the plural, and vice-versa.