Nulla poena sine lege

Notion(s) Filing Case
Appeal Judgment - 08.06.2021 MLADIĆ Ratko
(MICT-13-56-A)

562. The Appeals Chamber recalls that, pursuant to Article 24(1) of the ICTY Statute, trial chambers “shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia”.[1] Furthermore, according to Rule 101(A) of the ICTY Rules, a “convicted person may be sentenced to imprisonment for a term up to and including the remainder of the convicted person’s life”.[2] The Appeals Chamber also recalls that the principle of nulla poena sine lege prohibits retroactive punishment.[3] The principle of lex mitior prescribes that if the law relevant to the offence of the accused has been amended, the less severe law should be applied;[4] however, the relevant law must be binding upon the court.[5]

563. The Appeals Chamber considers that Mladić’s submission regarding “oversights in the jurisprudence” is based on the erroneous foundation that, having “recourse” to the sentencing practices of the former Yugoslavia meant that Article 24 of the ICTY Statute “incorporated” or “import[ed]” domestic sentencing practices into international law and the sentencing practice of the ICTY.[6] It is settled jurisprudence that the ICTY was not in any way bound by the laws or sentencing practices of the former Yugoslavia; rather, trial chambers were only obliged to take such practice into consideration.[7]

564. There is also no merit in Mladić’s submissions that the introduction of Rule 101(A) of the ICTY Rules created another sentencing regime within the jurisdiction of the ICTY and “retroactively” provided for life imprisonment,[8] or that life imprisonment was not “accessible or foreseeable” to accused, including himself, at the ICTY.[9] His contention that Rule 101(A) of the ICTY Rules, which was adopted subsequent to the ICTY Statute, established a different sentencing regime is misguided. The Appeals Chamber recalls that judicial power to adopt rules of procedure and evidence at the ICTY was subject to the principles and parameters set out in the ICTY Statute and international law.[10] Given that Article 24 of the ICTY Statute does not adopt or incorporate the sentencing practices of the former Yugoslavia into the ICTY’s sentencing practices, Mladić fails to establish that the creation of Rule 101(A) of the ICTY Rules deviates from the principle set out in the ICTY Statute.[11] Regarding the foreseeability of life imprisonment, Mladić ignores jurisprudence that the imposition of life imprisonment has been available for the most serious violations of international humanitarian law since at least the tribunals established after World War II.[12] Additionally, the Appeals Chamber finds no merit in Mladić’s submission that the ICTY Appeals Chamber in the Čelebići case conflated issues of liability (nullem crimen sine lege) and punishment (nulla poena sine lege).[13] The ICTY Appeals Chamber specifically considered the question of penalty independent of liability, concluding that there could be no doubt that the accused must have been aware that the crimes for which they were indicted were the most serious violations of international humanitarian law, punishable by the most severe penalties.[14] Furthermore, since the establishment of the ICTY, convicted persons before it have received sentences of life imprisonment pursuant to the ICTY Statute and Rules.[15] Most recently, the Appeals Chamber imposed a sentence of life imprisonment in the Karadžić case before the Mechanism.[16] The Appeals Chamber thus finds that Rule 101(A) of the ICTY Rules did not create another sentencing regime inconsistent with Article 24(1) of the ICTY Statute,[17] and Mladić fails to demonstrate that life imprisonment was not an accessible or foreseeable punishment. 

[1] See also Rule 101(B)(iii) of the ICTY Rules. There are almost identical provisions in the Statute and Rules of the Mechanism. See Article 22(2) of the Statute; Rule 125(B)(iii) of the Rules.

[2] There is an almost identical provision in the Rules of the Mechanism. See Rule 125(A) of the Rules.

[3] See Čelebići Appeal Judgement, n. 1382, referring to, inter alia, Article 15 of the International Covenant on Civil and Political Rights, General Assembly Resolution 2200 A (XXI), UN Doc. A/RES/21/2200, 16 December 1966, 999 U.N.T.S. 171 (“ICCPR”). Article 15(1) of the ICCPR stipulates, inter alia, that a heavier penalty shall not be imposed than the one that was applicable at the time when the criminal offence was committed. See also Krajišnik Appeal Judgement, para. 750; Stakić Appeal Judgement, para. 398.

[4] See Deronjić Sentencing Appeal Judgement, para. 96; D. Nikolić Sentencing Appeal Judgement, para. 81. Article 15(1) of the ICCPR states, in part, that if, subsequent to the commission of the offence, a provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.

[5] See Galić Appeal Judgement, para. 398, n. 1201; Deronjić Sentencing Appeal Judgement, para. 97; D. Nikolić Sentencing Appeal Judgement, paras. 81, 84, 85.

[6] See Mladić Appeal Brief, paras. 951, 953, 955; Mladić Reply Brief, para. 133.

[7] See, e.g., Prlić et al. Appeal Judgement, n. 11069; Popović et al. Appeal Judgement, para. 2087; Šainović et al. Appeal Judgement, para. 1830; Stakić Appeal Judgement, para. 398; D. Nikolić Sentencing Appeal Judgement, paras. 69, 84.

[8] See Mladić Appeal Brief, paras. 932, 938, 945, 946, 952, 954; Mladić Reply Brief, para. 133.

[9] See Mladić Appeal Brief, paras. 951, 953, 956.

[10] See Article 15 of the ICTY Statute; Prosecutor v. Vidoje Blagojević et al., Case Nos. IT-02-60-AR73, IT‑02‑60-AR73.2 & IT-02-60-AR73.3, Decision, 8 April 2003, para. 15.

[11] See also D. Nikolić Sentencing Appeal Judgement, para. 82.

[12] Čelebići Appeal Judgement, para. 817, n. 1401 (where the ICTY Appeals Chamber noted that judgements rendered at Nuremberg, Tokyo, and other successor tribunals provide clear authority for custodial sentences up to and including life imprisonment, and that individuals convicted before the Nuremberg Tribunal were given life sentences). See also Čelebići Appeal Judgement, n. 1382, referring to, inter alia, Article 15(2) of the ICCPR (stating that “[n]othing in [Article 15] shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by the community of nations”).  

[13] See Mladić Appeal Brief, paras. 947-949.

[14] See Čelebići Appeal Judgement, para. 817.

[15] See D. Nikolić Sentencing Appeal Judgement, para. 83. See, e.g., Tolimir Appeal Judgement, paras. 648, 649; Popović et al. Appeal Judgement, paras. 2110, 2111, 2117; Galić Appeal Judgement, p. 185.

[16] See Karadžić Appeal Judgement, paras. 776, 777.

[17] See D. Nikolić Sentencing Appeal Judgement, para. 82.

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ICTY Statute Article 24 ICTY Rule Rule 101(A)