721. [W]hile the Appeals Chamber does not discount the assistance that may be drawn from previous decisions rendered, it also concludes that this may be limited.  On the other hand, it reiterates that, in determination of sentence, “due regard must be given to the relevant provisions in the Statute and the Rules which govern sentencing, as well as the relevant jurisprudence of this Tribunal and the ICTR, and of course to the circumstances of each case.”[1]

See also paragraphs 719-720.

756. Public confidence in the integrity of the administration of criminal justice (whether international or domestic) is a matter of abiding importance to the survival of the institutions which are responsible for that administration.  One of the fundamental elements in any rational  and fair system of criminal justice is consistency in punishment.  This is an important reflection of the notion of equal justice.  The experience of many domestic jurisdictions over the years has been that such public confidence may be eroded if these institutions give an appearance of injustice by permitting substantial inconsistencies in the punishment of different offenders, where the circumstances of the different offences and of the offenders being punished are sufficiently similar that the punishments imposed would, in justice, be expected to be also generally similar.

757. This is not to suggest that a Trial Chamber is bound to impose the same sentence in the one case as that imposed in another case simply because the circumstances between the two cases are similar.  As the number of sentences imposed by the Tribunal increase, there will eventually appear a range or pattern of sentences imposed in relation to persons where their circumstances and the circumstances of their offences are generally similar.  When such a range or pattern has appeared, a Trial Chamber would be obliged to consider that range or pattern of sentences, without being bound by it, in order only to ensure that the sentence it imposes does not produce an unjustified disparity which may erode public confidence in the integrity of the Tribunal’s administration of criminal justice.

758.    At the present time, there does not exist such a range or pattern of sentences imposed by the Tribunal.  The offences which the Tribunal tries are of such a nature that there is little assistance to be gained from sentencing patterns in relation to often fundamentally different offences in domestic jurisdictions, beyond that which the Tribunal gains from the courts of the former Yugoslavia in accordance with Article 24 of the Tribunal’s Statute.  At the present time, therefore, in order to avoid any unjustified disparity, it is possible for the Tribunal to have regard only to those sentences which have been imposed by it in generally similar circumstances as to both the offences and the offenders.  It nevertheless must do so with considerable caution.  As the Appeals Chamber discusses further below[2] comparisons with sentences imposed in other cases will be of little assistance unless the circumstances of the cases are substantially similar.  However, in cases involving similar factual circumstances and similar convictions, particularly where the sentences imposed in those other cases have been the subject of consideration in the Appeals Chamber, there should be no substantial disparity in sentence unless justified by the circumstances of particular accused.

See also paragraph 798.

771. Rule 101(C) of the Rules of Procedure and Evidence provided at the time relevant to the Trial proceedings in this case that:

The Trial Chamber shall indicate whether multiple sentences shall be served consecutively or concurrently.

The choice as to concurrent or consecutive sentencing is therefore a matter within the Trial Chamber’s discretion.  Rule 101(C) has now been removed from the Rules but the discretion of the Trial Chamber in relation to concurrent or consecutive sentencing is preserved in the amended Rule 87(C), which provides that the Trial Chamber will indicate whether separate sentences imposed in respect of multiple convictions shall be served consecutively or concurrently.[1]  However, it is clear that this discretion must be exercised by reference to the fundamental consideration, referred to above, that the sentence to be served by an accused must reflect the totality of the accused’s criminal conduct.  In this respect, the Appeals Chamber agrees with the Prosecution submission that a person who is convicted of many crimes should generally receive a higher sentence than a person convicted of only one of those crimes.

732. […] As a practical matter, the seriousness of a superior’s conduct in failing to prevent or punish crimes must be measured to some degree by the nature of the crimes to which this failure relates.  A failure to prevent or punish murder or torture committed by a subordinate must be regarded as being of greater gravity than a failure to prevent or punish an act of plunder, for example.[1]

See also paragraph 741.

735. It would be incorrect to state that, as a matter of law, responsibility for criminal conduct as a superior is less grave than responsibility as the subordinate perpetrator. […]

433. Delić has filed two grounds of appeal in relation to each of the convictions which he has challenged.  The first is that the evidence was not what was described as legally sufficient to sustain the convictions; the second is that the evidence was not what was described as factually sufficient to sustain the convictions. 

434. The issue as to whether there is a legal basis to sustain a conviction usually arises at the close of the Prosecution case at trial, a situation now covered by Rule 98bis(B),[1] following the earlier practice of seeking a judgement of acquittal upon the basis that, in relation to one or more charges, there is no case to answer.  The test applied is whether there is evidence (if accepted) upon which a reasonable tribunal of fact could be satisfied beyond reasonable doubt of the guilt of the accused on the particular charge in question.[2]  In the present case, the Trial Chamber ruled that there was a case to answer,[3] and there was no appeal from that decision.  The test to be applied in relation to the issue as to whether the evidence is factually sufficient to sustain a conviction is whether the conclusion of guilt beyond reasonable doubt is one which no reasonable tribunal of fact could have reached.[4] 

435. If an appellant is not able to establish that the Trial Chamber’s conclusion of guilt beyond reasonable doubt was one which no reasonable tribunal of fact could have reached, it follows that there must have been evidence upon which such a tribunal could have been satisfied beyond reasonable doubt of that guilt.  Under those circumstances, the latter test of legal sufficiency is therefore redundant, and the appeal must be dismissed.  Similarly, if an appellant is able to establish that no reasonable tribunal of fact could have reached a conclusion of guilt upon the evidence before it, the appeal against conviction must be allowed and a judgement of acquittal entered.  In such a situation it is unnecessary for an appellate court to determine whether there was evidence (if accepted) upon which such a tribunal could have reached such a conclusion. 

[RULE 98BIS WAS AMENDED ON 8 DECEMBER 2004.]

576. [T]he Trial Chamber is said by Landžo to have violated the principles of certainty in the criminal law,[1] and of nullum crimen sine lege,[2] or ex post facto law (as it was described by counsel for Landžo).[3]  These objections are misconceived.  The law to be applied must be that which existed at the time the acts upon which the charges are based took place.  However, the subsequent identification or interpretation of that law by the Tribunal, whenever that takes place, does not alter the law so as to offend either of those principles.[4]

193. The power or authority to prevent or to punish does not solely arise from de jure authority conferred through official appointment.  In many contemporary conflicts, there may be only de facto, self-proclaimed governments and therefore de facto armies and paramilitary groups subordinate thereto.  Command structure, organised hastily, may well be in disorder and primitive. To enforce the law in these circumstances requires a determination of accountability not only of individual offenders but of their commanders or other superiors who were, based on evidence, in control of them without, however, a formal commission or appointment.  A tribunal could find itself powerless to enforce humanitarian law against de facto superiors if it only accepted as proof of command authority a formal letter of authority, despite the fact that the superiors acted at the relevant time with all the powers that would attach to an officially appointed superior or commander.

[…]

197. In determining questions of responsibility it is necessary to look to effective exercise of power or control and not to formal titles.[1]  This would equally apply in the context of criminal responsibility.  In general, the possession of de jure power in itself may not suffice for the finding of command responsibility if it does not manifest in effective control, although a court may presume that possession of such power prima facie results in effective control unless proof to the contrary is produced.  The Appeals Chamber considers that the ability to exercise effective control is necessary for the establishment of de facto command or superior responsibility[2] and thus agrees with the Trial Chamber that the absence of formal appointment is not fatal to a finding of criminal responsibility, provided certain conditions are met.  Mucić’s argument that de facto status must be equivalent to de jure status for the purposes of superior responsibility is misplaced. Although the degree of control wielded by a de jure or de facto superior may take different forms, a de facto superior must be found to wield substantially similar powers of control over subordinates to be held criminally responsible for their acts. […]

238. […] A showing that a superior had some general information in his possession, which would put him on notice of possible unlawful acts by his subordinates would be sufficient to prove that he “had reason to know”. The ICRC Commentary (Additional Protocol I) refers to “reports addressed to (the superior), […] the tactical situation, the level of training and instruction of subordinate officers and their troops, and their character traits” as potentially constituting the information referred to in Article 86(2) of Additional Protocol I.[1] As to the form of the information available to him, it may be written or oral, and does not need to have the form of specific reports submitted pursuant to a monitoring system. This information does not need to provide specific information about unlawful acts committed or about to be committed. For instance, a military commander who has received information that some of the soldiers under his command have a violent or unstable character, or have been drinking prior to being sent on a mission, may be considered as having the required knowledge.

239. Finally, the relevant information only needs to have been provided or available to the superior, or in the Trial Chamber’s words, “in the possession of”.  It is not required that he actually acquainted himself with the information. In the Appeals Chamber’s view, an assessment of the mental element required by Article 7(3) of the Statute should be conducted in the specific circumstances of each case, taking into account the specific situation of the superior concerned at the time in question. Thus, as correctly held by the Trial Chamber,[2] as the element of knowledge has to be proved in this type of cases, command responsibility is not a form of strict liability. A superior may only be held liable for the acts of his subordinates if it is shown that he “knew or had reason to know” about them.  The Appeals Chamber would not describe superior responsibility as a vicarious liability doctrine, insofar as vicarious liability may suggest a form of strict imputed liability.

See also paragraphs 225-237.

320.    The offence of unlawful confinement of a civilian, a grave breach of the Geneva Conventions which is recognised under Article 2(g) of the Statute of the Tribunal, is not further defined in the Statute.  As found by the Trial Chamber, however, clear guidance can be found in the provisions of Geneva Convention IV.  The Trial Chamber found that the confinement of civilians during armed conflict may be permissible in limited cases, but will be unlawful if the detaining party does not comply with the provisions of Article 42 of Geneva Convention IV, which states:

The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary.

If any person, acting through the representatives of the Protecting Power, voluntarily demands internment, and if his situation renders this step necessary, he shall be interned by the Power in whose hands he may be.

Thus the involuntary confinement of a civilian where the security of the Detaining Power does not make this absolutely necessary will be unlawful.  Further, an initially lawful internment clearly becomes unlawful if the detaining party does not respect the basic procedural rights of the detained persons and does not establish an appropriate court or administrative board as prescribed in Article 43 of Geneva Convention IV.[1]  That article provides:

Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose.  If the internment or placing in assigned residence is maintained, the court or administrative board shall periodically, and at least twice yearly, give consideration to his or her case, with a view to the favourable amendment of the initial decision, if circumstances permit. 

Unless the protected persons concerned object, the Detaining Power shall, as rapidly as possible, give the Protecting Power the names of any protected persons who have been interned or subjected to assigned residence, or have been released from internment or assigned residence.  The decisions of the courts or boards mentioned in the first paragraph of the present Article shall also, subject to the same conditions, be notified as rapidly as possible to the Protecting Power.

321.    In its consideration of the law relating to the offence of unlawful confinement, the Trial Chamber also referred to Article 5 of Geneva Convention IV, which imposes certain restrictions on the protections which may be enjoyed by certain individuals under the Convention.[2]  It provides, in relevant part:

Where, in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.

[…]

In each case, such persons shall nevertheless be treated with humanity, and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention.  They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.[3]

This provision reinforces the principle behind Article 42, that restrictions on the rights of civilian protected persons, such as deprivation of their liberty by confinement, are permissible only where there are reasonable grounds to believe that the security of the State is at risk. 

322.    The Appeals Chamber agrees with the Trial Chamber that the exceptional measure of confinement of a civilian will be lawful only in the conditions prescribed by Article 42, and where the provisions of Article 43 are complied with.[4]  Thus the detention or confinement of civilians will be unlawful in the following two circumstances:

(i)       when a civilian or civilians have been detained in contravention of Article 42 of Geneva Convention IV, ie they are detained without reasonable grounds to believe that the security of the Detaining Power makes it absolutely necessary; and

(ii)       where the procedural safeguards required by Article 43 of Geneva Convention IV are not complied with in respect of detained civilians, even where their initial detention may have been justified.

See also paragraphs 327, 329.

150. It is both legally and morally untenable that the rules contained in common Article 3, which constitute mandatory minimum rules applicable to internal conflicts, in which rules are less developed than in respect of international conflicts, would not be applicable to conflicts of an international character. The rules of common Article 3 are encompassed and further developed in the body of rules applicable to international conflicts. It is logical that this minimum be applicable to international conflicts as the substance of these core rules is identical. In the Appeals Chamber’s view, something which is prohibited in internal conflicts is necessarily outlawed in an international conflict where the scope of the rules is broader. The Appeals Chamber is thus not convinced by the arguments raised by the appellants and finds no cogent reasons to depart from its previous conclusions.

See also paragraphs 143-149.

CONSIDERING that […] in principle, Counsel must organise his commitments in such a way that he is able to meet deadlines […]

CONSIDERING that, in general, the Appeals Chamber need not take into account Counsel’s commitments when setting deadlines […]