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UNITED NATIONS

UNITED . NATIONS . international Tribunal for the Case No.: IT-96-21-A. Prosecution of Persons Responsible for Serious Violations of Date: 20 February 2001. international Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 Original: ENGLISH. IN THE APPEALS CHAMBER. Before: Judge David Hunt, Presiding Judge Fouad Riad Judge Rafael Nieto-Navia Judge Mohamed Bennouna Judge Fausto Pocar Registrar: Mr Hans Holthuis Judgement of: 20 February 2001. PROSECUTOR. V. Zejnil DELALIC, Zdravko MUCIC (aka PAVO ), Hazim DELIC. and Esad LAND O (aka ZENGA ). ( ^ELEBICI Case ). JUDGEMENT. Counsel for the Accused: Mr John Ackerman and Ms Edina Re idovi} for Zejnil Delalic Mr Tomislav Kuzmanovic and Mr Howard Morrison for Zdravko Mucic Mr Salih Karabdic and Mr Tom Moran for Hazim Delic Ms Cynthia Sinatra and Mr Peter Murphy for Esad Land o The Office of the Prosecutor: Mr Upawansa Yapa Mr William Fenrick Mr Christopher Staker Mr Norman Farrell Ms Sonja Boelaert-Suominen Mr Roeland Bos CONTENTS.

UNITED NATIONS Case No.: IT-96-21-A Date: 20 February 2001 International Tribunal for the Prosecution of Persons Responsible for Serious Violations of

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1 UNITED . NATIONS . international Tribunal for the Case No.: IT-96-21-A. Prosecution of Persons Responsible for Serious Violations of Date: 20 February 2001. international Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 Original: ENGLISH. IN THE APPEALS CHAMBER. Before: Judge David Hunt, Presiding Judge Fouad Riad Judge Rafael Nieto-Navia Judge Mohamed Bennouna Judge Fausto Pocar Registrar: Mr Hans Holthuis Judgement of: 20 February 2001. PROSECUTOR. V. Zejnil DELALIC, Zdravko MUCIC (aka PAVO ), Hazim DELIC. and Esad LAND O (aka ZENGA ). ( ^ELEBICI Case ). JUDGEMENT. Counsel for the Accused: Mr John Ackerman and Ms Edina Re idovi} for Zejnil Delalic Mr Tomislav Kuzmanovic and Mr Howard Morrison for Zdravko Mucic Mr Salih Karabdic and Mr Tom Moran for Hazim Delic Ms Cynthia Sinatra and Mr Peter Murphy for Esad Land o The Office of the Prosecutor: Mr Upawansa Yapa Mr William Fenrick Mr Christopher Staker Mr Norman Farrell Ms Sonja Boelaert-Suominen Mr Roeland Bos CONTENTS.

2 I. INTRODUCTION .. 2. II. GROUNDS OF APPEAL RELATING TO ARTICLE 2 OF THE 4. A. Whether the Trial Chamber Erred in Holding that the Armed Conflict in Bosnia and Herzegovina at the Time Relevant to the Indictment was of an international 1. What is the Applicable Law? ..5. 2. Has the Trial Chamber Applied the Overall Control Test? .. 10. 3. The Nature of the Conflict Prior to 19 May 11. 4. The Nature of the Conflict After 19 May 12. B. Whether the Bosnian Serbs Detained in the ^elebi}i Camp were Protected Persons Under Geneva Convention 16. 1. What is the Applicable Law? .. 17. 2. Did the Trial Chamber Apply the Correct Legal Principles?.. 25. 3. Conclusion .. 30. C. Whether Bosnia and Herzegovina was a Party to the Geneva Conventions at the Time of the Events Alleged in the 31. III. GROUNDS OF APPEAL RELATING TO ARTICLE 3 OF THE STATUTE .. 34. A. Whether Common Article 3 of the Geneva Conventions Falls Within the Scope of Article 3 of the 36.

3 1. What is the Applicable Law? .. 36. 2. Did the Trial Chamber Follow the Tadi} Jurisdiction Decision? .. 41. B. Whether Common Article 3 is Applicable to international Armed Conflicts .. 42. 1. What is the Applicable Law? .. 42. 2. Did the Trial Chamber Follow the Tadi} Jurisdiction Decision? .. 46. C. Whether Common Article 3 Imposes Individual Criminal Responsibility .. 46. 1. What is the Applicable Law? .. 46. 2. Did the Trial Chamber Apply the Correct Legal Principles? .. 52. IV. GROUNDS OF APPEAL CONCERNING COMMAND RESPONSIBILITY .. 54. A. The Ninth Ground of Appeal of Muci}.. 54. 1. De Facto Authority as a Basis for a Finding of Superior Responsibility in international 55. 2. The Trial Chamber's Factual 59. 3. 60. 4. 64. B. The Prosecution Grounds of 64. 1. Mental Element Knew or had Reason to Know .. 64. 2. Whether Delali} Exercised Superior 73. 3. Deli}'s Acquittal under Article 7(3).. 96. V. UNLAWFUL CONFINEMENT OF CIVILIANS.

4 105. A. i Case No.: IT-96-21-A 20 February 2001. B. The Prosecution appeals ..112. 1. Article 7(3) 2. Article 7(1) C. Muci}'s D. VI. MULTIPLE CONVICTIONS BASED ON THE SAME 132. A. 1. Cumulative 2. Cumulative B. C. Impact on Sentencing ..146. VII. DELIC GROUNDS OF APPEAL ALLEGING ERRORS OF FACT .. 148. A. B. Issues 9 and 10: Convictions under Counts 1 and 2 ..149. C. Issues 11 and 12: Convictions Under Counts 3 and D. Issues 13 and 14: Convictions Under Counts 18 and E. Issues 15 and 16: Convictions under Counts 21 and F. Issues 17 and 18: Convictions Under Counts 46 and VIII. THE PROSECUTION INTERVIEWS WITH 179. IX. DIMINISHED MENTAL RESPONSIBILITY .. 194. A. B. The Issues on Appeal ..197. C. The Trial Chamber's Refusal to Define Diminished Mental Responsibility ..197. D. Does Diminished Responsibility Constitute a Defence?..200. E. The Trial Chamber's Rejection of Diminished Mental Responsibility ..204. X. SELECTIVE PROSECUTION .. 206. XI.

5 JUDGE KARIBI-WHYTE .. 214. A. The Allegations as to the Presiding Judge's B. Applicable Legal ii Case No.: IT-96-21-A 20 February 2001. C. Was the Allegation Proved? ..217. D. Absence of Identifiable Prejudice ..218. E. Obligation to Raise the Issue at F. XII. JUDGE ODIO BENITO AND VICE-PRESIDENCY OF COSTA 227. A. B. Was Judge Odio Benito No Longer Qualified as a Judge of the Tribunal?..229. C. Should Judge Odio Benito Have Disqualified Herself as a Judge of the Tribunal? ..237. D. XIII. JUDGE ODIO BENITO AND THE VICTIMS OF TORTURE 244. XIV. GROUNDS OF APPEAL RELATING TO 251. A. B. Prosecution's Appeal Against Mucic's 1. Failure to take into account the gravity of the 2. Failure to have regard to crimes not alleged in the 3. The determination that all sentences should be served C. Mucic's Appeal Against 1. Consideration of aggravating and mitigating 2. Comparison to the case of Wilhelm Von 3. Weight to be given to the element of deterrence.

6 286. D. Delic's Appeal Against Sentence ..289. 1. Violation of the Principle Nulla Poena Sine Lege and failure to properly consider the sentencing practice of the courts of the former Yugoslavia ..291. 2. The sentence imposed was excessive ..294. E. Esad Land 1. Comparison with other sentences imposed by the 2. Insufficient weight given to mitigating factors ..299. F. Significance of Respective Roles in the Broader Context of the Conflict Ground of Appeal Submitted by Land o, Delic and G. XV. DISPOSITION .. 306. XVI. SEPARATE AND DISSENTING OPINION OF JUDGE DAVID HUNT AND JUDGE. MOHAMED 309. A. iii Case No.: IT-96-21-A 20 February 2001. B. Background ..309. C. Analysis ..312. 1. Cumulative Charging ..312. 2. Cumulative D. Application of these principles to the present 1. Whether the crimes charged are legally distinct crimes ..326. 2. The determination of which of the duplicative convictions should be E. F. Sentencing ANNEX A .. 335. A. Procedural 1.

7 Notices of 2. Filings ..335. 3. Grounds of 4. Hearing ..342. 5. Status B. Issues Relating to the Composition of the Appeals Chamber ..342. 1. Assignment of 2. Disqualification ..343. C. Issues Relating to Defence 1. Provisional 2. D. Issues Relating to 1. Motions to Preserve and Provide 2. Production of Documents ..351. 3. Admission of Evidence and Related Issues ..351. ANNEX B - GLOSSARY OF TERMS .. 354. iv Case No.: IT-96-21-A 20 February 2001. 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 appeals against the Judgement rendered by Trial Chamber II on 16 November 1998 in the case of Prosecutor v Zejnil Delali}, Zdravko Muci} also known as Pavo , Hazim Deli}, Esad Land`o also known as Zenga ( Trial Judgement ).1. Having considered the written and oral submissions of the Parties, the Appeals Chamber HEREBY RENDERS ITS JUDGEMENT.

8 1. Prosecutor v Zejnil Delali}, Zdravko Muci} also known as Pavo , Hazim Deli}, Esad Land`o also known as Zenga , Case No: IT-96-21-T, Trial Chamber, 16 Nov 1998 ( Trial Judgement ). (For a list of designations and abbreviations used in this Judgement, see Annex B). 1. Case No.: IT-96-21-A 20 February 2001. I. INTRODUCTION. 1. The Indictment against Zejnil Delali}, Zdravko Muci}, Hazim Deli} and Esad Land`o, confirmed on 21 March 1996, alleged serious violations of humanitarian law that occurred in 1992 when Bosnian Muslim and Bosnian Croat forces took control of villages within the Konjic municipality in central Bosnia and Herzegovina. The present appeal concerns events within the Konjic municipality, where persons were detained in a former Yugoslav People's Army ( JNA ) facility: the Celebici camp. The Trial Chamber found that detainees were killed, tortured, sexually assaulted, beaten and otherwise subjected to cruel and inhumane treatment by Muci}, Deli} and Land` Muci} was found to have been the commander of the ^elebi}i camp, Deli} the deputy commander and Land`o a prison guard.

9 2. In various forms, Delali} was co-ordinator of Bosnian Muslim and Bosnian Croat forces in the Konjic area between approximately April and September 1992. He was found not guilty of twelve counts of grave breaches of the Geneva Conventions of 1949 and violations of the laws or customs of war. The Trial Chamber concluded that Delali} did not have sufficient command and control over the Celebici camp or the guards that worked there to entail his criminal responsibility for their 3. Muci} was found guilty of grave breaches of the Geneva Conventions and of violations of the laws or customs of war for crimes including murder, torture, inhuman treatment and unlawful confinement, principally on the basis of his superior responsibility as commander of the Celebici camp, but also, in respect of certain counts, for his direct participation in the Muci} was sentenced to seven years Delic was found guilty of grave breaches of the Geneva Conventions and violations of the laws or customs of war for his direct participation in crimes including murder, torture, and inhuman Delic was sentenced to twenty years Land o was found guilty of grave breaches of the Geneva Conventions and violations of the laws or customs of war, for crimes including murder, torture, and cruel treatment, and sentenced to fifteen years 4.

10 The procedural background of the appeal proceedings is found in Annex A, which also contains a complete list of the grounds of appeal. Certain of the grounds of appeal of the 2. Trial Judgement, pp 290-394. 3. Trial Judgement, para 721. 4. Trial Judgement, pp 424-428. 5. Trial Judgement, pp 441-443. 6. Trial Judgement, pp 429-434. 7. Trial Judgement, pp 443-446. 2. Case No.: IT-96-21-A 20 February 2001. individual parties dealt with substantially the same subject matter, and certain grounds of appeal of Land`o were joined by Muci} and Deli}. For that reason, this judgement considers the various grounds of appeal grouped by subject matter, which was also the way the different grounds of appeal were dealt with during oral argument. 8. Trial Judgement, pp 447-449. 3. Case No.: IT-96-21-A 20 February 2001. II. GROUNDS OF APPEAL RELATING TO ARTICLE 2 OF THE STATUTE. 5. Deli}, Muci} and Land o have raised two closely related issues in relation to the findings of the Trial Chamber based on Article 2 of the Statute.


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