27. The Appeals Chamber emphasises that while the Statute and the Rules do oblige Trial Chambers to take into account both the aggravating and the mitigating circumstances of a case, the determination of what can constitute an aggravating or a mitigating factor and what weight has to be attached to those is within their discretion.[1] A Trial Chamber’s decision may therefore only be disturbed on appeal if the Appellant shows that the Trial Chamber either erred in the weighing process involved in the exercise of its discretion by taking into account what it ought not to have, or erred by failing to take into account what it ought to have taken into account.[2]

28. The apparent enjoyment an accused may derive from his criminal act has already been considered as an aggravating factor by the International Tribunal.

51. The avoidance of a lengthy trial has been commended, as correctly noted by the Trial Chamber, with the first admission of guilt before the International Tribunal, in the Erdemović Sentencing Judgement:

[T]his voluntary admission of guilt which has saved the International Tribunal the time and effort of a lengthy investigation and trial is to be commended.[1]

Judge Cassese, in his Separate and Dissenting Opinion to the Erdemović Appeal Judgement, addressed in detail some of the benefits of a guilty plea in terms of the International Tribunal’s resources:

It is apparent from the whole spirit of the Statute and the Rules that, by providing for a guilty plea, the draftsmen intended to enable the accused (as well as the Prosecutor) to avoid a possible lengthy trial with all the attendant difficulties. These difficulties - it bears stressing - are all the more notable in international proceedings. Here, it often proves extremely arduous and time-consuming to collect evidence. In addition, it is imperative for the relevant officials of an international court to fulfil the essential but laborious task of protecting victims and witnesses. Furthermore, international criminal proceedings are expensive, on account of the need to provide a host of facilities to the various parties concerned (simultaneous interpretation into various languages; provision of transcripts for the proceedings, again in various languages; transportation of victims and witnesses from far-away countries; provision of various forms of assistance to them during trial, etc.). Thus, by pleading guilty, the accused undoubtedly contributes to public advantage.[2]

Following Erdemović, other Trial Chambers have also noted that a guilty plea before the commencement of the trial contributes to saving International Tribunal resources.[3] Nevertheless, the Appeals Chamber emphasises that it considers that the avoidance of a lengthy trial, while an element to take into account in sentencing, should not be given undue weight.

At paras 13 to 18, the Appeals Chamber recalled its previous case-law that there is no sentencing scale at the ICTY. It then stated:

19. The guidance that may be provided by previous sentences rendered by the International Tribunal and the ICTR is not only “very limited”[1] but is also not necessarily a proper avenue to challenge a Trial Chamber’s finding in exercising its discretion to impose a sentence. The reason for this is twofold. First, whereas such comparison with previous cases may only be undertaken where the offences are the same and were committed in substantially similar circumstances,[2] when differences are more significant than similarities or mitigating and aggravating factors differ, different sentencing might be justified.  Second, Trial Chambers have an overriding obligation to tailor a penalty to fit the individual circumstances of the accused and the gravity of the crime,[3] with due regard to the entirety of the case, as the triers of fact. The Appeals Chamber recalls that it does not operate as a second Trial Chamber conducting a trial de novo,[4] and that it will not revise a sentence unless the Appellant demonstrates that the Trial Chamber has committed a “discernible error” in exercising its discretion.[5]

See also Limaj Appeal Judgement, para. 135.

At paras 44-47, the Appeals Chamber endorsed the definition of individual deterrence retained in the Trial Judgement and discussed the effects of such factor on sentencing:

44. At paragraphs 134 and 135 of the Sentencing Judgement, the Trial Chamber held:

134. Individual and general deterrence has an important function in principle and serves as an important goal of sentencing.[1]

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.

45. The Appeals Chamber adheres to the definition of individual deterrence provided by the Trial Chamber.[2] The rationale behind individual deterrence is that the sentence should be adequate to discourage an accused from recidivism after the sentence has been served and he has been released. The rationale behind general deterrence is very similar: “the penalties imposed by the International Tribunal must […] have sufficient deterrent value to ensure that those who would consider committing similar crimes will be dissuaded from doing so.”[3]

46. The Appeals Chamber reiterates that the principle of deterrence is “a consideration that may legitimately be considered in sentencing”[4] but that, in any case, “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”.[5] While it is undisputed that the element plays “an important role in the functioning of the Tribunal”,[6] the Trial Chamber’s duty remains to tailor the penalty to fit the individual circumstances of the accused and the gravity of the crime.[7] By doing so, Trial Chambers contribute to the promotion of and respect for the rule of law and respond to the call from the international community to end impunity, while ensuring that the accused are punished solely on the basis of their wrongdoings and receive a fair trial.

47. The Appeals Chamber therefore does not see how the Trial Chamber erred in the exercise of its discretion in imposing the sentence in this case. The Trial Chamber did consider the principle of deterrence as a fundamental principle to take into consideration when imposing a sentence[8] and correctly understood the scope of individual deterrence.[9] The Appeals Chamber considers that the Trial Chamber, in finding that individual deterrence does not apply, could have briefly referred to the reasons why it does not, so as to inform the Appellant, but was under no obligation to do so. Furthermore, it seems that the Appellant misunderstood the effect of the principle of deterrence at sentencing. He alleges that he was entitled to “benefit” from individual deterrence and treats this argument under his ground of appeal related to the alleged error of the Trial Chamber in its consideration of the mitigating factors. As shown above, individual deterrence is not a mitigating factor; it instead is a sentencing factor which, when relevant, is considered in imposing a penalty to enhance, but not to reduce, a sentence. A finding of a Trial Chamber that individual deterrence does not apply cannot therefore prejudice an accused.

97. The Appeals Chamber notes that the Trial Chamber, by imposing a sentence of 23 years, clearly – although not expressly – entered into a calculation to reflect the practice of the International Tribunal of granting early release after the convicted person has served two-thirds of his sentence:[1] the term of 15 years clearly amounts to two-thirds of the sentence it effectively rendered. The Appeals Chamber considers that the Trial Chamber mechanically – not to say mathematically – gave effect to the possibility of an early release. By doing so, it attached too much weight to the possibility of an early release. As a consequence, the Appeals Chamber (Judge Shahabuddeen dissenting) finds that a reduction of sentence shall be granted.

(See also Judge Shahabuddeen’s Dissenting Opinion)

25. The Appeals Chamber notes that the Trial Chamber convicted Kordić for planning, instigating, and ordering crimes pursuant to Article 7(1) of the Statute.[1] The Trial Chamber’s legal definitions of these modes of responsibility have not been appealed by any of the Parties. However, the Appeals Chamber deems it necessary to set out and clarify the applicable law in relation to these modes of responsibility insofar as it is necessary for its own decision.

26. The actus reus of “planning” requires that one or more persons design the criminal conduct constituting one or more statutory crimes that are later perpetrated.[2] It is sufficient to demonstrate that the planning was a factor substantially contributing to such criminal conduct.

27. The actus reus of “instigating” means to prompt another person to commit an offence.[3] While it is not necessary to prove that the crime would not have been perpetrated without the involvement of the accused, it is sufficient to demonstrate that the instigation was a factor substantially contributing to the conduct of another person committing the crime.[4]

28. The actus reus of “ordering” means that a person in a position of authority instructs another person to commit an offence.[5] A formal superior-subordinate relationship between the accused and the perpetrator is not required.[6]

29. The mens rea for these modes of responsibility is established if the perpetrator acted with direct intent in relation to his own planning, instigating, or ordering. 

30. In addition, the Appeals Chamber has held that a standard of mens rea that is lower than direct intent may apply in relation to ordering under Article 7(1) of the Statute. The Appeals Chamber held that a person who orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, has the requisite mens rea for establishing responsibility under Article 7(1) of the Statute pursuant to ordering. Ordering with such awareness has to be regarded as accepting that crime.[7]

31. A person who plans an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that plan, has the requisite mens rea for establishing responsibility under Article 7(1) of the Statute pursuant to planning. Planning with such awareness has to be regarded as accepting that crime.

32. A person who instigates another person to commit an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that instigation, has the requisite mens rea for establishing responsibility under Article 7(1) of the Statute pursuant to instigating.  Instigating with such awareness has to be regarded as accepting that crime.

79. The Appeals Chamber has not previously set out a definition for the crime of plunder as mentioned in Article 3(e) of the Statute. The Trial Chamber held that the essence of the offence was defined as:

all forms of unlawful appropriation of property in armed conflict for which individual criminal responsibility attaches under international criminal law, including those acts traditionally described as “pillage’”[1]  

The Appeals Chamber concurs with this assessment. It notes that in accordance with Geneva Convention IV, the Statute itself does not draw a difference between public or private property.[2]

82. The question remains at what point the breach actually involves grave consequences for the victim. The Trial Chamber in Čelebići referred to the Tadić Appeal Decision on Jurisdiction, when it held that there is a consequential link between the monetary value of the appropriated property and the gravity of the consequences for the victim.[3] The Appeals Chamber agrees with this conclusion. However, it stresses that the assessment of when a piece of property reaches the threshold level of a certain value can only be made on a case-by-case basis and only in conjunction with the general circumstances of the crime.[4]

83. The Appeals Chamber is, moreover, of the view that a serious violation could be assumed in circumstances where appropriations take place vis-à-vis a large number of people, even though there are no grave consequences for each individual. In this case it would be the overall effect on the civilian population and the multitude of offences committed that would make the violation serious.

84. The Appeals Chamber therefore finds that the crime of plunder is committed when private or public property is appropriated intentionally and unlawfully. Furthermore, the general requirements of Article 3 of the Statute in conjunction with Article 1 of the Statute relating to the seriousness of the crime must be fulfilled.

92. The Appeals Chamber cannot see how all educational buildings fulfil these criteria [of Article 1 of the Hague Convention of 1954]. Therefore, the Appeals Chamber finds that the Trial Chamber erred when it considered that “educational institutions are undoubtedly immovable property of great importance to the cultural heritage of peoples”.[1] The Trial Chamber did not consider whether and under which conditions the destruction of educational buildings constituted a crime qua custom at the time it was allegedly committed. Although Hague Convention IV is considered by the Report of the Secretary-General as being without doubt part of international customary law,[2] it does not explicitly refer to buildings dedicated to education.  The same applies to Article 53 of Additional Protocol I and it is suggested that the adjective “cultural” used in Article 53 applies to historic monuments and works of art and cannot be construed as applying to all institutions dedicated to education such as schools. Schools are, however, explicitly mentioned in Article 52 of Additional Protocol I, which relates to schools, places of worship and other civilian buildings. Article 23(g) of the Hague Regulations states that it is especially forbidden to “destroy (…) the enemy’s property, unless such destruction (…) is imperatively demanded by the necessities of war.” The Report of the Secretary-General states that the above instrument and the Regulations annexed thereto have beyond doubt become part of international customary law.[3]  There is no doubt that the crime envisaged of destruction of educational buildings was part of international customary law at the time it was allegedly committed.

34. The provisions of Article 7(1) and Article 7(3) of the Statute connote distinct categories of criminal responsibility.  However, the Appeals Chamber considers that, in relation to a particular count, it is not appropriate to convict under both Article 7(1) and Article 7(3) of the Statute.[1]  Where both Article 7(1) and Article 7(3) responsibility are alleged under the same count, and where the legal requirements pertaining to both of these heads of responsibility are met, a Trial Chamber should enter a conviction on the basis of Article 7(1) only, and consider the accused’s superior position as an aggravating factor in sentencing.[2]

66. […] at the time the unlawful attack occurred in this case, there was no basis for finding that, as a matter of customary international law, State practice or opinio iuris translated the prohibitions under Articles 51 and 52 of Additional Protocol I into international crimes, such that unlawful attacks were largely penalized regardless of the showing of a serious result. State practice was not settled as some required the showing of serious injury, death or damage as a result under their national penal legislation, while others did not.[1]

67. For the above-mentioned reasons, the Appeals Chamber is not satisfied that at the relevant time, a violation of Articles 51 and 52 of Additional Protocol I incurred individual criminal responsibility under Article 3 of the Statute without causing death, serious injury to body or health, or results listed in Article 3 of the Statute, or being of the same gravity. Therefore, the Appeals Chamber will consider in the Judgement that criminal responsibility for unlawful attack on civilians or civilian objects does require the proof of such a result emanating from an unlawful attack.

See also para. 58.