Position of authority vs. Superior responsibility

Notion(s) Filing Case
Appeal Judgement - 08.06.2021 MLADIĆ Ratko

545.  The Appeals Chamber recalls that the primary goal in sentencing is to ensure that the final or aggregate sentence reflects the totality of the criminal conduct and overall culpability of the offender.[1] While gravity of the offence is the primary factor in sentencing, the inherent gravity must be determined by reference to the particular circumstances of the case and the form and degree of the accused’s participation in the crime.[2] In this regard, the Appeals Chamber recalls that while a position of influence or authority, even at a high level, does not automatically warrant a harsher sentence, its abuse may constitute an aggravating factor.[3]

546.  The Appeals Chamber notes that, in assessing his liability, the Trial Chamber stated that “Mladić’s conduct and superior position [were] encapsulated within the conduct relied upon to establish his participation in the four [joint criminal enterprises]”.[4] The Trial Chamber did not enter convictions pursuant to superior responsibility under Article 7(3) of the ICTY Statute but indicated that it would consider Mladić’s superior position for the purposes of sentencing.[5] The Appeals Chamber is of the view that this legal approach is consistent with settled jurisprudence.[6] In the sentencing portion of the Trial Judgement, the Trial Chamber considered that Mladić’s participation in all four joint criminal enterprises “was undertaken in his official capacity as Commander of the VRS Main Staff”, and that he held this position throughout the entire Indictment period. The Trial Chamber then concluded that he therefore “abused his position” and found that “Mladić’s abuse of his superior position” added to the gravity of the offences.[8]

547.  Contrary to Mladić’s contention, the Appeals Chamber finds no indication that the Trial Chamber aggravated his sentence with superior responsibility under Article 7(3) of the ICTY Statute.[9] Rather, according to the Trial Chamber, it was the abuse of his position as Commander of the VRS Main Staff that aggravated the gravity of his offences.[10] The Appeals Chamber notes the Trial Chamber’s conclusion that Mladić was “responsible for having committed a wide range of criminal acts through his participation in four [joint criminal enterprises]”,[11] and that he did so while, inter alia: (i) commanding and controlling VRS units and other groups subordinated to the VRS; (ii) having knowledge of crimes committed by those under his command; (iii) placing severe restrictions on humanitarian aid; (iv) providing misleading information about crimes to representatives of the international community; and (v) failing to investigate crimes and/or punish perpetrators of the crimes.[12] Given the totality of the Trial Chamber’s findings on Mladić’s responsibility, the Appeals Chamber finds no discernible error in the Trial Chamber’s conclusion that Mladić abused his position of authority and that this added to the gravity of the crimes. […]

[1] See Martić Appeal Judgement, para. 350; Čelebići Appeal Judgement, para. 430.

[2] See, e.g., Nyiramasuhuko et al. Appeal Judgement, para. 3431; Šainović et al. Appeal Judgement, para. 1837; Martić Appeal Judgement, para. 350; Galić Appeal Judgement, para. 442.

[3] See, e.g., Prlić et al. Appeal Judgement, para. 3264; Nzabonimana Appeal Judgement, para. 464; Munyakazi Appeal Judgement, para. 170; Rukundo Appeal Judgement, para. 250; D. Milošević Appeal Judgement, para. 302; Babić Sentencing Appeal Judgement, para. 80.

[4] Trial Judgement, para. 5166.

[5] Trial Judgement, para. 5166.

[6] Where liability under both Articles 7(1) and 7(3) of the ICTY Statute is alleged, and where the legal requirements for both are met, a trial chamber should enter a conviction on the basis of Article 7(1) of the ICTY Statute alone and consider the superior position in sentencing. See, mutatis mutandis, Articles 6(1) and 6(3) of the ICTR Statute. See also Nyiramasuhuko et al. Appeal Judgement, para. 3359; Ɖorđević Appeal Judgement, para. 939; Setako Appeal Judgement, para. 266; Kordić and Čerkez Appeal Judgement, para. 34. The Trial Chamber correctly recalled this principle. See Trial Judgement, para. 5166.

[7] Trial Judgement, para. 5193.

[8] Trial Judgement, para. 5193.

[9] See Mladić Appeal Brief, paras. 917, 919.

[10] See Trial Judgement, para. 5193.

[11] Trial Judgement, paras. 5188-5192. See also, e.g., Trial Judgement, paras. 4612, 4688, 4893, 4921, 5098, 5131, 5156, 5163.

[12] See, e.g., Trial Judgement, paras. 4612, 4893, 5097, 5098, 5146, 5156.

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