Before:
Judge Mohamed Shahabuddeen, Presiding
Vice-President Florence Ndepele Mwachande Mumba
Judge Antonio Cassese
Judge Wang Tieya
Judge Rafael Nieto-Navia

1. The Appeals Chamber 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 (“International Tribunal”) is seized of two appeals lodged by Dusko Tadic (“Appellant”) against Sentencing Judgements rendered by Trial Chambers of the International Tribunal on 14 July 1997 and 11 November 1999, respectively. The relevant background, as far as these appeals are concerned, may be set out as follows.

2. The Appellant was arrested on 12 February 1994 in the Federal Republic of Germany , where he was then living, on suspicion of having committed offences at the Omarska camp in the former Yugoslavia in June 1992, including torture and abetting the commission of genocide, which constitute crimes under German law.

3. Proceedings at the International Tribunal relating to the Appellant commenced on 12 October 1994 when the Prosecutor of the International Tribunal filed an application seeking a formal request to the Federal Republic of Germany for deferral by the German courts to the competence of the International Tribunal. Such a request was issued by a Trial Chamber on 8 November 1994.¹ The Appellant was transferred to the International Tribunal on 24 April 1995, where he has remained in detention at the United Nations detention unit in The Hague until the present time.

4. The Indictment, as amended, charged the Appellant with 34 crimes within the jurisdiction of the International Tribunal. At his initial appearance on 26 April 1995, the Appellant pleaded not guilty to all counts. Three of the counts were subsequently withdrawn at trial.

5. On 7 May 1997, Trial Chamber II (Judges Gabrielle Kirk McDonald, Ninian Stephen and Lal Chand Vohrah) found the Appellant guilty on nine counts, guilty in part on two counts and not guilty on 20 counts. Specifically, the Trial Chamber convicted the Appellant of violations of the laws or customs of war pursuant to Article 3 of the Statute of the International Tribunal (“Statute”) under Counts 10, 13, 16 , 22 and 33 of the Indictment. It further found the Appellant guilty pursuant to Article 5 of the Statute for having committed crimes against humanity in the form of “persecution” under Count 1 of the Indictment and “inhumane acts” under Counts 11, 14, 17, 23 and 34. With respect to those counts charging the Appellant with grave breaches of the Geneva Conventions, the Trial Chamber, by majority, acquitted the Appellant on the basis that Article 2 of the Statute was inapplicable as it had not been proven that the victims at any relevant time were protected persons within the meaning of the Geneva Conventions.² With respect to certain other counts of the Indictment the Trial Chamber found that the evidence did not support a finding of guilt beyond reasonable doubt.³

6. Thereafter, in its Sentencing Judgment issued on 14 July 1997 (“Sentencing Judgment of 14 July 1997”), Trial Chamber II imposed sentence for each Count on which the Appellant had been convicted. The penalties imposed ranged from 6 to 20 years’ imprisonment, and the Trial Chamber ordered that each of the sentences was to run concurrently inter se. The Trial Chamber recommended that, unless exceptional circumstances applied, the Appellant’s sentence should not be commuted or otherwise reduced to a term of imprisonment less than ten years from the date of the Sentencing Judgment “or of the final determination of any appeal, whichever is the” later.⁴ In calculating the credit to which the Appellant was entitled for time spent in custody “pending his surrender to the Tribunal or pending trial or appeal”, the Trial Chamber held that the Appellant was entitled to such credit only from the point in time when a request was issued to the Federal Republic of Germany to defer to the jurisdiction of the International Tribunal.⁵ The Trial Chamber also ordered that the minimum sentence imposed was not to be subject to any entitlements to credit.⁶

7. Following appeals by both parties against the Opinion and Judgment (“Appeals Against Opinion and Judgment”), Dusko Tadic on 11 August 1997 filed a further appeal against the Sentencing Judgment of 14 July 1997 (“Appeal against the Sentencing Judgment of 14 July 1997”).⁷ Upon the completion of lengthy procedures relating inter alia to the admissibility of new evidence, during which repeated extensions were sought by both parties,⁸ oral arguments relating to all three appeals were heard before the Appeals Chamber in April 1999.

8. The Appeals Chamber entered its Judgement on the Appeals Against Opinion and Judgment on 15 July 1999.⁹ The Appeals Chamber found, inter alia, that the victims referred to in the relevant parts of the Indictment were protected persons within the meaning of the applicable provision of the Fourth Geneva Convention. Further, the Appeals Chamber concluded that the Trial Chamber had erred when it held that it could not, on the evidence before it , be satisfied beyond reasonable doubt that the Appellant was criminally liable for the offences charged in Counts 29, 30 and 31 of the Indictment. Reversing the Trial Chamber’s verdict in this part, the Appeals Chamber accordingly found the Appellant guilty on Counts 8, 9, 12, 15, 21, 29, 30, 31 and 32 of the Indictment (“Additional Counts”).¹⁰ The Appeals Chamber, with the agreement of the parties, deferred sentencing on the Additional Counts to a further stage of sentencing procedure. The Appeals Chamber further deferred its judgement on the Appeal Against the Sentencing Judgment of 14 July 1997 until the completion of this subsequent sentencing procedure.¹¹

9. Following oral and written submissions,¹² in which both parties expressed a preference for such a course, the Appeals Chamber subsequently remitted the matter of sentencing in respect of the Additional Counts to a Trial Chamber to be designated by the President of the International Tribunal .¹³

10. On 11 November 1999, a Trial Chamber composed of Judges Gabrielle Kirk McDonald , Lal Chand Vohrah and Patrick Lipton Robinson issued its Sentencing Judgment on the Additional Counts (“Sentencing Judgment of 11 November 1999”).¹⁴ The Trial Chamber imposed sentences ranging from 6 to 25 years for each of the counts of which the Appellant had been found guilty by the Appeals Chamber, and stipulated that the new sentences were to run concurrently both inter se and in relation to each of the sentences imposed by the Sentencing Judgment of 14 July 1997.¹⁵

11. The Trial Chamber noted that the Appellant had provided the Prosecutor with certain material and found that this action of the Appellant constituted a degree of co-operation with the Prosecutor. Having regard to the nature and content of the material, however, the Trial Chamber held that this act did not constitute “ substantial co-operation” within the meaning of Sub-rule 101(B)(ii) of the Rules of Procedure and Evidence of the International Tribunal (“Rules”) and that it accordingly would not be taken into account in the determination of the Appellant’s sentence . In calculating the credit to which the Appellant was entitled for time during which he was detained in custody “pending his surrender to the Tribunal or pending trial or appeal”, the Trial Chamber further held that the Appellant was not entitled to such credit from the point in time on which he was originally arrested in the Federal Republic of Germany, but only from the subsequent date when a request was issued to the Federal Republic of Germany to defer to the jurisdiction of the International Tribunal.¹⁶

12. On 25 November 1999, the Appellant filed a Notice of Appeal against the Sentencing Judgment of 11 November 1999 (“Appeal against the Sentencing Judgment of 11 November 1999”), wherein he requested, inter alia, that it be joined with the Appeal against the Sentencing Judgment of 14 July 1997.¹⁷ By Order of 3 December 1999, the Appeals Chamber ordered that the two appeals be joined.¹⁸

13. Following the submission of written briefs by the parties,¹⁹ oral arguments on the Appeal against the Sentencing Judgment of 11 November 1999 were heard on 14 January 2000.

14. The Appellant submits the following grounds of appeal against the Sentencing Judgment of 14 July 1997:

Ground (1): The total sentence of 20 years decided by the Trial Chamber is unfair .²⁰

(i) The sentence is unfair, as it was longer than the facts of the case required .²¹

(ii) The Trial Chamber erred by failing to take sufficient account of the general practice regarding prison sentences in the courts of the former Yugoslavia, as required by Article 24 of the Statute of the International Tribunal (“Statute”).²²

(iii) The Trial Chamber erred by giving insufficient attention to the Appellant’s personal circumstances.²³

Ground (2): The Trial Chamber erred in proposing that the calculation of the recommended minimum sentence should commence “from the date of this Sentencing Judgment or of the final determination of any appeal, whichever is the” later.²⁴

Ground (3): The Trial Chamber erred by not giving the Appellant credit for the time spent in detention in Germany prior to the issuance of a request for deferral by the International Tribunal.²⁵

15. The Appellant submits six principal grounds of appeal against the Sentencing Judgment of 11 November 1999:

Ground (1): The Trial Chamber erred in placing excessive weight on deterrence in the assessment of the appropriate sentence for violations of international humanitarian law.²⁶

Ground (2): The Trial Chamber erred in failing to have sufficient regard to the need to develop a range of sentences which properly reflects the relative position of different accused and their role in the events in which they were involved.²⁷

Ground (3): The Trial Chamber erred in determining that the Appellant’s act of submitting certain material to the Prosecutor did not constitute substantial co-operation within the meaning of Sub-rule 101(B)(ii) of the Rules.²⁸

Ground (4): The Trial Chamber erred in holding that, all other things being equal , crimes against humanity should attract a higher sentence than war crimes.²⁹

Ground (5): The Trial Chamber erred in placing insufficient weight on the general practice regarding prison sentences in the courts of the former Yugoslavia.³⁰

Ground (6): The Trial Chamber erred in not giving the Appellant credit for the period of his detention in Germany prior to the issuance of a request for deferral by the International Tribunal.³¹

16. By the Appeal against the Sentencing Judgment of 14 July 1997 the Appellant seeks the following relief:³²

(ii) That the calculation of the minimum sentence imposed by the Trial Chamber be altered to run from the commencement of the Appellant’s detention in Germany.

(iii) That the Appellant be given credit for time spent in detention in Germany prior to the request for deferral made by the International Tribunal.

17. By the Appeal against the Sentencing Judgment of 11 November 1999 the Appellant seeks the following relief:³³

(ii) That the Appellant be given credit for time spent in detention in Germany prior to the request for deferral made by the International Tribunal.

18. In the first ground of the appeal against the Sentencing Judgment of 14 July 1997, the Appellant alleges that the 20-year sentence imposed by Trial Chamber II is unfair.³⁴

(i) The Appellant avers that the sentence was longer than the facts of the case required. Specifically, the Appellant contends that the Trial Chamber erred in failing to have regard to any “hierarchy of relative criminal culpability”. The Appellant notes that, as a general sentencing principle, heavier penalties should be imposed on those who commit the gravest crimes and whose responsibility for those crimes is highest, and submits that it was incumbent upon the Trial Chamber in determining sentence to have in mind the development of an appropriate tariff reflecting the varying culpability of different accused. The Appellant submits that his rank, activities and position in the hierarchy ought to have placed him at the very bottom of such a list of culpability, and that this fact was not reflected in the Trial Chamber’s decision to impose a sentence of 20 years’ imprisonment.³⁵

(ii) As a second aspect of this ground of appeal, the Appellant avers that the Trial Chamber, in imposing sentence, failed to take sufficient account of the sentencing practice of the courts of the former Yugoslavia, as required by Article 24(1) of the Statute. While acknowledging that the Statute does not make this sentencing practice binding on the Trial Chambers, the Appellant notes in this respect that , in the absence of the death penalty, the most severe punishment that could be imposed under the law of the former Yugoslav was a prison term of 20 years.³⁶

(iii) The Appellant further argues that the Trial Chamber gave insufficient weight to his personal circumstances. He submits that at the time of the offences he was the subject of a campaign of deliberate propaganda encouraging participation in ethnic cleansing. The Appellant also notes that he is currently imprisoned and will serve his sentence in a foreign country away from his spouse and family, and isolated from persons of his own nationality. The Appellant further contends that upon his release he will suffer from the notoriety of being the first war criminal convicted by the International Tribunal and that this, combined with other factors , will render return to his native region impossible.³⁷

19. The Prosecutor (“Respondent”) submits that the Appellant in relation to the first ground of appeal has failed to meet the burden which is to be placed upon him, namely, to show that the Trial Chamber incorrectly stated the law relating to its sentencing options or abused its discretion in arriving at its sentence.³⁸ The Respondent maintains that the sentence imposed was both in accordance with the law and appropriate in respect of the crimes committed and the circumstances of the offender. The Respondent further submits that the Trial Chamber, in determining its sentence, considered all the relevant factors as required by the Statute and the Rules. It is, accordingly, the Respondent’s position that the 20-year sentence imposed by Trial Chamber II on the Appellant should not be disturbed on appeal.³⁹

(i) The Respondent submits that the Trial Chamber, in determining its sentence, considered the notion of relative criminal culpability and applied it to the Appellant’s position as compared to others at the time of the commission of the offences. The Respondent notes that the Trial Chamber in its Sentencing Judgment of 14 July 1997 expressly referred to the “relative unimportance” of the Appellant as a mitigating factor.⁴⁰ Moreover, the Respondent notes that under the Statute, the Trial Chamber had the option of imposing on the Appellant a sentence of life imprisonment, as well as that of imposing consecutive sentences upon him. Instead, the Trial Chamber chose, as the most severe punishment imposed on the Appellant, to sentence him to imprisonment for 20 years and ordered that his sentences run concurrently. The Respondent submits that this indicates that the Trial Chamber did consider the Appellant’s individual situation and culpability , and contends that the sentence arrived at by the Trial Chamber was not inappropriate . The Respondent accordingly submits that the Appellant has failed to discharge his burden in relation to this point.⁴¹

(ii) The Respondent observes that, although Article 24 of the Statute provides that Trial Chambers, in passing sentences, shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia, a Trial Chamber in sentencing must ultimately exercise its own discretion. The Respondent notes that the Trial Chamber expressly stated that it had had recourse to the sentencing practice of the former Yugoslavia, and submits that the Appellant has not satisfied his burden of demonstrating that the Trial Chamber abused its discretion by not giving this factor even greater weight in the determination of the Appellant’s sentence .⁴²

(iii) As regards the personal circumstances of the Appellant, the Respondent asserts that the Trial Chamber noted not only the existence of the propaganda campaign and its impact on people in the region, but also considered the role of the Appellant in the campaign. The Respondent contends that, in assessing the circumstances relevant to the Appellant, the Trial Chamber also considered the brutality of the acts in which he personally engaged and his willingness to take part in the ethnic cleansing which occurred in the area. Thus, the Respondent submits that, given the Appellant’s willing participation in the entire scope of the ethnic cleansing campaign in the area, the 20-year sentence is not excessive, and does not amount to an abuse of discretion by the Trial Chamber.⁴³

20. Insofar as the Appellant argues that the sentence of 20 years was unfair because it was longer than the facts underlying the charges required, the Appeals Chamber can find no error in the exercise of the Trial Chamber’s discretion in this regard . The sentence of 20 years is within the discretionary framework provided to the Trial Chambers by the Statute and the Appeals Chamber will not, therefore, quash the sentence and substitute its own sentence instead.

21. The Appeals Chamber finds no merit in the Appellant’s contention that the Trial Chamber failed to sufficiently consider the sentencing practice and in particular the maximum sentences in the former Yugoslavia. The jurisprudence of this Tribunal has consistently held that, while the law and practice of the former Yugoslavia shall be taken into account by the Trial Chambers for the purposes of sentencing , the wording of Sub-rule 101(A) of the Rules, which grants the power to imprison for the remainder of a convicted person’s life, itself shows that a Trial Chamber’s discretion in imposing sentence is not bound by any maximum term of imprisonment applied in a national system. The Appeals Chamber is not satisfied that the Trial Chamber, in imposing a sentence of 20 years, erred in the exercise of its discretion . Accordingly, the reliance by the Appellant on the law of the former Yugoslavia which prescribed a maximum sentence of 20 years as an alternative to the death penalty is misplaced, and more especially having regard to the fact that, at the time when the offences were committed, a death penalty could have been imposed under that law for similar offences.

22. With respect to the Appellant’s final challenge to his sentence, namely, that the Trial Chamber failed to adequately consider his personal circumstances, the Appeals Chamber is unable to find support for this contention. The Trial Chamber’s decision addressed the issue of public indoctrination, and there is no discernible error in the exercise of discretion with regard to the remainder of the Trial Chamber’s analysis that would permit the Appeals Chamber to substitute its own decision for that of the Trial Chamber.

23. For the reasons set out above, the first ground of appeal fails and is accordingly dismissed.

24. The Appellant submits that, notwithstanding that the authority for the Trial Chamber’s recommendation of a minimum sentence is not immediately apparent, he does not challenge the Trial Chamber’s competence in this regard. Instead, the Appellant submits that the alleged unfairness arises from the Trial Chamber’s recommendation that the minimum sentence should not begin to run until after the conclusion of the appeal process. The Appellant contends that this would effectively penalise him for exercising his right of appeal, for the delays caused by the obstruction of Republika Srpska, and for the procedural delays that are inevitable in any proceedings of this kind.⁴⁴

25. The Appellant contends that it is fundamentally unfair to impose a penalty on the exercise of the right to appeal and that such a punitive disposition is inconsistent with the purposes of the Statute. Thus, in the Appellant’s view, justice can only be achieved if the minimum sentence begins to run from the time the Appellant first lost his liberty.⁴⁵

26. The Respondent contends that the minimum sentence recommended by the Trial Chamber is appropriate and that, since the Appellant has failed to demonstrate that the imposition of a minimum sentence constitutes an abuse of the Trial Chamber’s discretion, the recommendation should not be disturbed on appeal. The Respondent avers that the Trial Chamber’s recommendation is based on its first-hand observation of the accused and the witnesses, which led it to consider that the minimum the Appellant owes to society for his wrongs and the circumstances of his offences is ten years’ imprisonment in addition to the time he spent in confinement awaiting trial and appeal.⁴⁶

27. The sentences imposed by the Trial Chamber in its Sentencing Judgment of 14 July 1997 ranged from 6 to 20 years. In view of the fact that the sentences imposed on the Appellant are to run concurrently, the Appeals Chamber will consider the question of the recommended minimum sentence, and the credit to be given pursuant to Rule 101 of the Rules, only in relation to the higher sentence of 20 years.

28. Neither the Statute nor the Rules provide guidance for judicial discretion with respect to the recommendation of a minimum sentence. The discretion of a Trial Chamber to recommend a minimum sentence flows from the powers inherent in its judicial function and does not amount to a departure from the Statute and the Rules. However , the judicial discretion of Trial Chambers to attach conditions to sentences is subject to the limitations imposed by fundamental fairness.

29. An individual’s right to appeal a judgement of a Trial Chamber resulting in conviction is established under Article 25 of the Statute and must be accorded substantial weight. The right to appeal so established reflects the position in the general corpus of international human rights law. (See, in particular, the International Covenant on Civil and Political Rights, Article 14(5), the European Convention for the Protection of Human Rights and Fundamental Freedoms, Protocol 7, Article 2, and the American Convention on Human Rights, Article 8(2)(h)). In light of the fundamental importance of this right, a Trial Chamber should not impose undue encumbrances that could deter a convicted person from pursuing an appeal.

30. Generally, fairness requires that an accused or a convicted person not be punished for the exercise of a procedural right. The Appeals Chamber accepts the view of the United States Supreme Court that “[a] court is ‘without right to … put a price on an appeal. A defendant’s exercise of a right of appeal must be free and unfettered … [ I ]t is unfair to use the great power given to the court to determine sentence to place a defendant in the dilemma of making an unfree choice.’”⁴⁷

31. In this regard, the Trial Chamber’s recommendation that the ten-year minimum sentence begins to run “from the date of this Sentencing Judgment or of the final determination of any appeal, whichever is the” later raises legitimate concerns. Such a condition could suggest to prospective appellants that the exercise of the right to appeal could result in enhanced penalties. The consequential discouragement of appeals may deprive the Appeals Chamber of the opportunity to hear appeals on substantial questions of law.

32. Accordingly, the Appeals Chamber finds that the Trial Chamber erred insofar as it ordered that the recommended minimum term take as its starting point the final determination of any appeal. However, the Appeals Chamber is not satisfied, and the Appellant has put forward no supporting argument, that the Trial Chamber erred in the exercise of its discretion insofar as it ordered that the recommended minimum term begin to run from the date of the Sentencing Judgment of 14 July 1997, nor that it so erred in ordering that the Appellant not be entitled to credit pursuant to Rule 101 in respect of the minimum term. To preserve that part of the recommendation , the Appeals Chamber recommends that the Appellant should serve a term of imprisonment ending no earlier than 14 July 2007.

33. The Appeals Chamber finds in favour of the minimum term recommendation of the Trial Chamber as preserved in paragraph 32 above. The Appellant is not entitled to credit pursuant to Rule 101 in respect of the minimum term. Consequently, unless exceptional circumstances apply, the Appellant should serve a term of imprisonment ending no earlier than 14 July 2007.

34. The Appellant submits that Trial Chamber II erred in principle by not giving him credit for the time he spent in custody in Germany between 12 February 1994 and 8 November 1994. The Appellant contends that since the Trial Chamber found that both sets of investigations (i.e., those in Germany and before the Tribunal ) involved the same crimes, he should in fairness have been given credit for the entire time he spent in custody in Germany.⁴⁸ He notes that he was deprived of his liberty in Germany for a total of 14 months and submits that, notwithstanding the content of Rule 101 and the fact that he was in custody in a separate jurisdiction prior to his transfer to the United Nations detention facilities, the impact of his detention remains the same whether in Germany or The Hague. The Appellant accordingly requests that the Appeals Chamber revise the sentence and give him credit for the whole period served in detention.⁴⁹

35. The Respondent contends that the Trial Chamber gave the Appellant appropriate credit for time spent in detention in Germany, as required under Sub-rule 101(D) (then Sub-rule 101(E)). The Respondent also submits that Sub-rule 101(D) requires that credit be given only for the period during which the convicted person was detained in custody pending surrender to the Tribunal, and that Appellant has not established any error of law or abuse of discretion by the Trial Chamber in its decision to award credit for the more limited period.⁵⁰

36. Arguing that the Appeals Chamber has the authority to change the Rule in the event that it is unjust, the Respondent submits that this power should, however, only be exercised if the application of the Rule would deprive the Appellant of fundamental fairness. The Respondent contends that the Rule is not contrary to existing rules of criminal law and that, as the Trial Chamber applied the Rule appropriately , its application should not be disturbed on appeal.⁵¹

37. The question before the Appeals Chamber is whether Trial Chamber II erred in its application of Sub-rule 101(E), which has since been amended and renumbered as Sub-rule 101(D).⁵² Sub-rule 101 (D) states that:

38. Under Sub-rule 101(D) the Appellant is entitled to credit for the time spent in custody in the Federal Republic of Germany only for the period pending his surrender to the International Tribunal. However, the Appeals Chamber recognises that the criminal proceedings against the Appellant in the Federal Republic of Germany emanated from substantially the same criminal conduct as that for which he now stands convicted at the International Tribunal. Hence, fairness requires that account be taken of the period the Appellant spent in custody in the Federal Republic of Germany prior to the issuance of the Tribunal’s formal request for deferral.

40. For the reasons stated above, the Appeals Chamber considers that the interests of justice require that the Appellant be granted credit for the entire time he spent in detention in the Federal Republic of Germany. The time for which the Appellant is entitled to credit should therefore be calculated from 12 February 1994. Consequently , the Appellant is entitled to credit for five years, eleven months and fourteen days as at the date of this Judgement.

41. In the first ground of appeal, the Appellant submits that the Trial Chamber erred by placing excessive weight on the factor of deterrence in assessing the sentence to be imposed upon him.⁵³ Specifically , the Appellant suggests that the Trial Chamber was in error in agreeing with the views expressed in the Celebici⁵⁴ and Furundzija⁵⁵ cases regarding the effect of deterrence and questions the Trial Chamber’s approval of the proposition that “[d]eterrence is probably the most important factor in the assessment of appropriate sentences for violations of international humanitarian law”.⁵⁶ Citing the works of legal commentators on the question of deterrence, the Appellant submits that the most potent deterrent against violations of international humanitarian law is not the length of the prison sentence itself, but the subjective assessment of the offender as to the likelihood of his being indicted, arrested, tried and convicted.⁵⁷

42. The Appellant further submits that deterrent sentencing is not required either to combat impunity or to contribute to the restoration and maintenance of peace in the former Yugoslavia. The Appellant contends that these two goals are best achieved by the imposition of a punishment which is deserved for the offence committed , having regard to the seriousness of the harm caused by the offender, his degree of culpability and any extenuating circumstances.⁵⁸

43. The Appellant further argues that, even if deterring future violations of humanitarian law did warrant the imposition of lengthy terms of imprisonment, it may be questioned whether that goal can be achieved where the offenders are not high-ranking officials or military officers. In this context, the Appellant also emphasises that his offences were committed at a time when the ordinary Serb population was being bombarded by potent and cogent nationalist propaganda in the media.⁵⁹

44. The Respondent rejects the Appellant’s arguments on this point, and contends that the Appellant ignores the actual findings of the Trial Chamber as to the factors it considered in reaching its sentencing determination.⁶⁰

45. The Respondent argues that the Appellant focuses solely upon the issue of deterrence , rather than recognising the clear language of the Sentencing Judgment of 11 November 1999 wherein the Trial Chamber stated that it “shares the opinion expressed in the above-mentioned cases (Celebici and Furundzija( in respect of retribution and deterrence serving as the primary purposes of sentence. Accordingly, the Trial Chamber has , in its determination of the appropriate sentence, taken these purposes into account as one of the relevant factors”.⁶¹

46. The Respondent further submits that the Appellant disregards the finding of the Trial Chamber that “while the purpose of criminal law sanctions include such aims as just punishment, deterrence, incapacitation of the dangerous and rehabilitation , the Trial Chamber accepts that the ‘modern philosophy of penology [is] that the punishment should fit the offender and not merely the crime’”.⁶²

47. The Respondent argues that this finding demonstrates that the Trial Chamber was indeed guided by the very factors the Appellant urges the Appeals Chamber to consider, and submits that the Appellant has failed to provide any clear indication from the Sentencing Judgment of 11 November 1999 that the Trial Chamber accorded undue weight to the factor of deterrence.⁶³

48. In determining the sentences to be imposed on the Appellant, the Trial Chamber took into account, as one of the relevant factors, the principle of deterrence. The Appeals Chamber accepts that this is a consideration that may legitimately be considered in sentencing, a proposition not disputed by the Appellant. Equally, the Appeals Chamber accepts that this factor must not be accorded undue prominence in the overall assessment of the sentences to be imposed on persons convicted by the International Tribunal. In the circumstances of the present case, the Appeals Chamber is not satisfied that the Trial Chamber gave undue weight to deterrence as a factor in the determination of the appropriate sentence to be imposed on the Appellant.

51. In the second ground of appeal, the Appellant submits that the Trial Chamber failed to have regard to the need to develop a recognisable sentencing tariff, or range of sentences, which properly reflects the relative position of different accused and their role in the events underlying the charges against them. Emphasising the need to adopt a consistent approach to sentencing in the different Trial Chambers , the Appellant submits that there is a significant disparity between his sentence of 25 years and sentences imposed in other cases decided by the International Tribunal . In this respect, the Appellant specifically contends that his role, responsibility and position in the hierarchy cannot justify a sentence of the length he now faces .⁶⁴

52. The Appellant further contends that, in developing an appropriate range of sentences, the Chambers of the International Tribunal should be guided by the level of sentences imposed by the Military Tribunals sitting at Nuremberg after the Second World War, and should take into account the fact that the International Tribunal now has a number of high-ranking figures, including military officials, in custody awaiting trial. The Appellant cites various examples of sentences imposed, inter alia, by Military Tribunals following the Second World War, where the defendants , although holding much higher positions of responsibility and committing offences on a much larger scale, all received shorter sentences than he. The Appellant submits that, as he was neither a high-ranking official nor a military officer, he should not be sentenced on a level appropriate to such individuals. Accordingly, the Appellant submits that the decided cases demonstrate that the sentence imposed upon him was manifestly excessive.⁶⁵

53. The Respondent submits that the Appellant has failed to provide any basis in fact or law to support his contention that the Trial Chamber erred in its determination of an appropriate sentence or that the sentence was manifestly excessive. Specifically , the Respondent contends that the Appellant has failed to offer any real comparison between the circumstances of his own case and those of other cases determined by the International Tribunal, or to provide any indication from the Sentencing Judgment of 11 November 1999 to demonstrate that the Trial Chamber did not give appropriate consideration to the full range of sentences available. Contrary to the Appellant’s submissions, the Respondent contends that the sentence imposed upon the Appellant is entirely consistent with the sentences given to other persons convicted by the International Tribunal.⁶⁶

54. The Respondent further argues that the Appellant’s reference to the case law of the Second World War is inapposite, as the sentences handed down by those tribunals were imposed in an entirely different context, and reflect the views on sentencing of that time. The Respondent submits that the appropriate sentence in respect of the Appellant must reflect the values and principles of the international community as they exist today.⁶⁷.

2. Discussion

55. In the opinion of the Appeals Chamber, the Trial Chamber’s decision, when considered against the background of the jurisprudence of the International Tribunal and the International Criminal Tribunal for Rwanda,⁶⁸ fails to adequately consider the need for sentences to reflect the relative significance of the role of the Appellant in the broader context of the conflict in the former Yugoslavia.

56. Although the criminal conduct underlying the charges of which the Appellant now stands convicted was incontestably heinous, his level in the command structure , when compared to that of his superiors, i.e. commanders, or the very architects of the strategy of ethnic cleansing, was low.

57. In the circumstances of the case, the Appeals Chamber considers that a sentence of more than 20 years’ imprisonment for any count of the Indictment on which the Appellant stands convicted is excessive and cannot stand.

58. The Appeals Chamber, revising the Sentencing Judgment of 11 November 1999, imposes a sentence of 20 years for each of Counts 29, 30 and 31 of the Indictment .

C. Third Ground of Appeal: Error in the Determination that the Material Submitted by the Appellant to the Prosecutor did not Constitute Substantial Co-operation Within the Meaning of Sub-rule 101(B)(ii)

59. In the third ground of appeal, the Appellant avers that the Trial Chamber erred in finding that his act of providing the Prosecutor with certain material, while constituting “some degree of co-operation”, did not meet the standard of “substantial co-operation” within the meaning of Sub-rule 101(B)(ii) of the Rules. The Appellant requests the Appeals Chamber to re-examine the relevant material and submits that , on a proper analysis, it meets the standard established by the Rules. The Appellant argues, inter alia, that the relevant rule does not simply call for an assessment of the utility of the material provided in the work of the Prosecutor, but is directed to the action of the Appellant in providing material of this kind to the Prosecutor . The Appellant submits that, from his standpoint, the material represents all the co-operation he can give the Prosecutor.⁶⁹

60. The Appellant also requests the Appeals Chamber to take into consideration as a matter of general mitigation certain assistance provided by him to the German prosecuting authorities following the issuance of the Sentencing Judgment of 11 November 1999.⁷⁰

61. The Respondent submits that the Appellant presents no direct argument or facts that would indicate that the Trial Chamber committed an error of fact that occasioned a miscarriage of justice or erred as a matter of law in its evaluation of the material submitted by the Appellant or the weight to be given to it.⁷¹

62. The Respondent suggests that a mere invitation to the Appeals Chamber to undertake a review should not be a sufficient basis to justify a ground of appeal. Accordingly , the Respondent requests that this ground of appeal be dismissed for failure on the part of the Appellant to satisfy the burden of persuasion that must be placed upon him.⁷²

63. The Appeals Chamber is not satisfied that any basis in law or fact has been disclosed in support of the appeal in this part. This ground of appeal accordingly fails.

D. Fourth Ground of Appeal: Error in the Determination that Crimes Against Humanity Should Attract a Higher Sentence than War Crimes

65. The Appellant contends that the Appeals Chamber should reconsider this issue (which has been raised only in relation to the Appeal against the Sentencing Judgment of 11 November 1999) in the light of the Separate Opinion of Judge Robinson at first instance.⁷³ He submits that the sentence imposed on a defendant should reflect the seriousness of the actual acts committed and the defendant’s level of culpability for them, and that he should not be exposed to a higher sentence for the same acts simply because of the legal description attached to them.⁷⁴

66. At the oral hearing on 14 January 2000, the Appellant added that no distinction between the seriousness of a war crime and that of a crime against humanity was apparent either in the Statute of the International Criminal Court or in the jurisprudence of the trials held at Nuremberg after the Second World War.⁷⁵

67. At the oral hearing on 14 January 2000, the Respondent argued that the seriousness of crimes was determined by society based on particular interests that also distinguished the crimes.⁷⁶ The Respondent also argued that, “in many national jurisdictions”, different penalties accrue for one act by reference to the nature of the victim.⁷⁷ The Respondent relied for its submission in this regard on the position of the Trial Chamber following the Erdemovic( 78 ) decision, that all things being equal, a crime against humanity was a more serious offence than an ordinary war crime.⁷⁹ Referring to the possibility that the original notion of crimes against humanity might relate to the humaneness of certain acts for the purposes of the Nuremberg trials arising from the Second World War, the Respondent nonetheless submitted that the international community had since the trials come to regard such acts as crimes against humanity in the sense that they affected the community as a whole, and that this changed vision therefore did warrant a determination in our times that a crime against humanity was a more serious crime than an ordinary war crime.⁸⁰

68. At the hearing of 14 January 2000, the Appellant made a brief reply to the submissions of the Respondent in this regard. He argued that no authorities had been cited by the Respondent in support of its submission that customary international law had developed in respect of the distinction between war crimes and crimes against humanity, and that the societal interests which protected the Jews of Europe in 1945 were not less than the societal interests which protected the victims in the former Yugoslavia in the 1990s. ⁸¹

69. The Appeals Chamber has taken account of the arguments of the parties and the authorities to which they refer, inclusive of previous judgments of the Trial Chambers and the Appeals Chamber of the International Tribunal. After full consideration , the Appeals Chamber takes the view that there is in law no distinction between the seriousness of a crime against humanity and that of a war crime. The Appeals Chamber finds no basis for such a distinction in the Statute or the Rules of the International Tribunal construed in accordance with customary international law; the authorized penalties are also the same, the level in any particular case being fixed by reference to the circumstances of the case. The position is similar under the Statute of the International Criminal Court, Article 8(1) of the Statute, in the opinion of the Appeals Chamber, not importing a difference. The Appeals Chamber therefore upholds this ground of appeal.

E. Fifth Ground of Appeal: Error by Placing Insufficient Weight on the General Practice Regarding Prison Sentences in the Courts of the Former Yugoslavia

70. In the fifth ground of appeal the Appellant submits that the Trial Chamber, in imposing sentence, failed to take sufficient account of the sentencing practice of the courts of the former Yugoslavia, as required by Article 24(1) of the Statute . Whilst accepting that the Chambers of the International Tribunal are not bound by this practice, the Appellant suggests that there is a certain “moral fairness ”⁸² in sentencing someone in accordance with the laws of the place where the crimes were committed. In this respect, the Appellant notes that his crimes were committed in Bosnia in 1992, and that he could , therefore, normally have expected to be tried in Bosnia according to the laws applicable there at the time of his trial. The Appellant observes that, had he been so tried, the maximum sentence he could have received at the relevant time would have been one of 20 years’ imprisonment, as an alternative to the death penalty , and otherwise 15 years’ imprisonment. Re-emphasising his low-ranking position and the fact that the crimes of which he stands convicted were committed on a much smaller scale than those with which the cases following the Second World War were concerned, the Appellant submits that according to the laws of the former Yugoslavia he would have received a sentence well below the maximum possible sentence.⁸³

71. The Respondent contends that the Appellant presents no direct argument or facts in relation to the fifth ground of appeal that would indicate that the Trial Chamber committed an error of fact that occasioned a miscarriage of justice or erred as a matter of law in its evaluation of the weight to be given to the sentencing practice of the courts of the former Yugoslavia.

72. In particular, the Respondent notes that had the Appellant been tried under the laws of the former Yugoslavia existing at the time of the offences, the death sentence could have been imposed. The Respondent further dismisses the Appellant’s reference to the sentences imposed by Military Tribunals following the Second World War as speculative and inapposite. Consequently, the Respondent requests that this ground of appeal be dismissed.⁸⁴

73. In this ground of appeal, the Appellant merely sets forth in greater detail , but with no greater force of persuasion, issues raised as part of the first ground of appeal against the Sentencing Judgment of 14 July 1997. Adopting the reasoning set out above, the Appeals Chamber cannot find any error in the exercise of discretion on the part of the Trial Chamber with respect to its treatment of the sentencing practice of the courts of the former Yugoslavia. Accordingly, this ground of appeal fails.

F. Sixth Ground of Appeal: Error in Not Giving the Appellant Credit for Time Spent in Detention Prior to the Issuance of a Formal Request for Deferral

75. The Appellant’s sixth ground of appeal is identical to the third ground of appeal against the Sentencing Judgment of 14 July 1997. For the reasons set out above, the Appeals Chamber considers that the interests of justice require that the Appellant be granted credit for the entire time he spent in detention in the Federal Republic of Germany. The time for which the Appellant is entitled to credit should therefore be calculated from 12 February 1994. Consequently, the Appellant is entitled to credit for five years, eleven months and fourteen days as at the date of this Judgement.

(1) DENIES the first ground of Appeal against the Sentencing Judgment of 14 July 1997 and AFFIRMS the sentences imposed upon the Appellant by the Sentencing Judgment of 14 July 1997;

(2) DENIES the first, third and fifth grounds of Appeal against the Sentencing Judgment of 11 November 1999;

(3) ALLOWS the second and fourth grounds of Appeal against the Sentencing Judgment of 11 November 1999, Judge Cassese dissenting with respect to the fourth ground, REVISES the Trial Chamber’s Sentencing Judgment of 11 November 1999 with respect to Counts 29, 30 and 31 of the Indictment, and SENTENCES Dusko Tadic to twenty years’ imprisonment for each of said Counts;

(4) AFFIRMS the sentences imposed in the Sentencing Judgment of 11 November 1999 with respect to Counts 8, 9, 12, 15, 21 and 32;

(5) ORDERS that the sentences imposed in sub-paragraph (3) above, as well as the sentences imposed by the Sentencing Judgments of 14 July 1997 and 11 November 1999 and affirmed in sub-paragraphs (1) and (4) above, shall begin to run as of today’s date;

(6) ORDERS that each of the sentences imposed in sub-paragraph (3) above be served concurrently both inter se and in relation to the sentences imposed in the Sentencing Judgments of 14 July 1997 and 11 November 1999 and affirmed in sub-paragraphs (1) and (4) above;

(7) ALLOWS the second ground of Appeal against the Sentencing Judgment of 14 July 1997 insofar as it now REVISES the Sentencing Judgment of 14 July 1997 by recommending that, unless exceptional circumstances apply, Dusko Tadic should serve a term of imprisonment ending no earlier than 14 July 2007;

(8) ALLOWS the third ground of Appeal against the Sentencing Judgment of 14 July 1997 and the sixth ground of appeal against the Sentencing Judgment of 11 November 1999, REVISES the Sentencing Judgment of 14 July 1997 and the Sentencing Judgment of 11 November 1999 by FINDING, as it now does, that Dusko Tadic is entitled to credit for five years, eleven months and fourteen days in relation to the sentences referred to in subparagraph (5) above, provided that such credit shall not affect the minimum term recommendation contained in sub-paragraph (7) above.

Judge Shahabuddeen and Judge Cassese append Separate Opinions to this Judgement.