82. The Appeals Chamber recalls that the charges against an accused and the material facts supporting those charges must be pleaded with sufficient precision in the Indictment so as to provide notice to the accused.[1] By the same token, for sentencing purposes, a Trial Chamber may only consider in aggravation circumstances pleaded in the Indictment.[2]

Again, pursuant to relevant findings in the Stakić Appeal Judgement, the Appeals Chamber in the Simić case found proprio motu that the Trial Chamber erred in the exercise of its discretion in finding that the Appellant’s professional background as a medical doctor constituted an aggravating circumstance. See paragraphs 270-274.

416. For the conclusion that the Appellant’s medical background could be cited as an aggravating factor, the Trial Chamber relied on what the Trial Chambers respectively held in the Kayishema and Ruzindana and Ntakirutimana Trial Judgements.[1] The Appeals Chamber does not, however, find that the two ICTR cases are persuasive precedents for the present case. In the Kayishema and Ruzindana Trial Judgement, the Trial Chamber simply stated that as a medical doctor Kayishema owed a duty to the community and that this constituted an aggravating factor[2] but did not give any explanation as to the legal basis for its conclusion. The Trial Chamber in Ntakirutimana held that:

the Chamber notes that Gérard Ntakirutimana acknowledges that he departed the hospital leaving the Tutsi patients behind. He explained that the gendarmes had directed him to leave because of increasing lack of security. The Chamber is aware that the security situation was difficult and that, for instance, Oscar Giordano left a few days earlier. However, in the Chamber’s view it is difficult to imagine why the Accused was at particular risk, compared with the remaining persons. According to his own explanation, he did not return to the hospital to inquire as to the condition of patients and staff. The overall situation leaves the Chamber with the impression that the Accused simply abandoned the Tutsi patients. This behaviour is not in conformity with the general picture painted by the Defence of the Accused as a medical doctor who cared for his patients.[3]

This statement of the Trial Chamber as to the duty of a medical doctor appears to have been made in a context which is completely different from that of the case before this Appeals Chamber. Thus, while in that context the conclusion of the Trial Chamber may well be persuasive, the same is not true when the same reasoning is transplanted in a completely different context such as the case of the Appellant. Caution is needed when relying as a legal basis on statements made by Trial Chambers in the context of cases and circumstances that are wholly different. The Appeals Chamber considers that these statements by themselves provide too tenuous a basis for holding that the previous background of the Accused, and the ethical duties stemming from it, are an aggravating factor in international criminal law. While the Trial Chamber has discretion in determining factors in aggravation, the Trial Chamber must provide convincing reasons for its choice of factors. As the basis on which the Trial Chamber found the existence of this aggravating factor is rather tenuous, the Appeals Chamber finds that the Trial Chamber committed a discernible error in identifying the professional background of the Appellant as an aggravating factor. This error impacted on the Trial Chamber’s determination of the sentence and therefore the Appeals Chamber will take it into account when revising the Appellant’s sentence.

65. The Appeals Chamber finds that Rašić has failed to show that the Trial Chamber erroneously relied on her position as an “officer of justice” as an aggravating circumstance. […]

66. Similarly, the Appeals Chamber finds that Rašić has failed to show that the Trial Chamber’s finding that she was an “officer of justice” is not supported by the evidence. Again, the Appeals Chamber finds that this argument effectively turns on semantics as opposed to substance. The Trial Chamber used this term to describe the obligations of “any professional involved in the proceedings before the Tribunal”, including members of defence teams.[1] It took into account that, as a member of Milan Lukić’s defence team, Rašić held a “position of trust”, and that she was “obligated to act conscientiously with full respect of the law and applicable rules”.[2]

67. The specific obligation to fully respect the applicable law is contained in the disciplinary regime applicable to members of a defence team. Pursuant to Article 35 (i) and (v) of the Code of Professional Conduct for Counsel, members of a defence team display professional misconduct if they: (i) violate the Rules; or (ii) engage in conduct which is prejudicial to the proper administration of justice before the Tribunal.[3]

231. It is well-established that a large number of victims is not an element of the crime of genocide. The Appeals Chamber also recalls that, with respect to extermination as a crime against humanity, “a particularly large number of victims can be an aggravating circumstance in relation to the sentence for this crime if the extent of the killings exceeds that required for extermination.” The Appeals Chamber further recalls that extermination is the act of killing on a “large scale”, and that “large scale” does not suggest a strict numerical approach with a minimum number of victims. While extermination as a crime against humanity has been found in relation to the killing of thousands of persons, it has also been found in relation to fewer killings, such as the killings of approximately 60 individuals and less. In the present case, the Trial Chamber found that the attacks on Nyange Church resulted “in the death of approximately 2,000 Tutsi men, women and children.” The Appeals Chamber considers that the extent of the killings at Nyange Church on 15 and 16 April 1994 exceeded that required for extermination, and that the number of victims could therefore be taken into consideration as an aggravating circumstance in the determination of the sentence. The Appeals Chamber accordingly rejects Ndahimana’s contention that the Trial Chamber engaged in impermissible double-counting in considering the number of victims of the attacks on NyangeChurch as an aggravating factor.

2046. Finally, the Appeals Chamber recalls that obstructing justice has been identified as one of the factors that may be considered as an aggravating circumstance.[1] […]

161. Verbal abuse has not been used previously at the International Tribunal as an aggravating factor. The Statute and the Rules provide the Trial Chambers with a wide of discretion in determining the sentence and in considering factors in aggravation.  In the view of the Appeals Chamber, verbal abuse can be taken into account as an aggravating factor by Trial Chambers.  

80. […] The Appeals Chamber notes that, contrary to the Defence’s assertion, the position of an accused in “high political offices” has been considered as an aggravating factor for the purposes of sentencing even where an accused’s leadership of a joint criminal enterprise is not at issue.[1]  Several cases before the International Tribunal in which the mode of liability of joint criminal enterprise was not at issue illustrate that a Trial Chamber has the discretion to take into account, as an aggravating circumstance, the seniority, position of authority, or high position of leadership held by a person criminally responsible under Article 7(1) of the Statute.[2] A high rank in the military or political field does not, in itself, merit a harsher sentence. But a person who abuses or wrongly exercises power deserves a harsher sentence.[3]  Consequently, what matters is not the position of authority taken alone, but that position coupled with the manner in which the authority is exercised.[4] For instance, in the Aleksovski case, the Appeals Chamber considered that the superior responsibility of the appellant, who was a prison warden, “seriously aggravated [his] offences, [as] [i]nstead of preventing it, he involved himself in violence against those whom he should have been protecting”.[5] In Ntakirutimana, the ICTR Appeals Chamber concurred with the Trial Chamber that the abuse of the appellant’s personal position in the community was an aggravating circumstance.[6] 

81. In the present case, the Trial Chamber did not hold that the Appellant’s position as a regional political leader in itself constituted an aggravating circumstance. The Trial Chamber thoroughly considered the Appellant’s behaviour as a regional political leader and stressed that it considered his leadership position as an aggravating circumstance because he used his authority to enlist resources of the SAO Krajina to further the joint criminal enterprise, made inflammatory speeches during public events and in the media which prepared the ground for the Serb population to accept that their goals could be achieved through acts of persecution, and amplified the consequences of the campaign of persecutions by allowing it to continue.[7] Therefore, the Appeals Chamber considers that the Trial Chamber correctly found that the Appellant’s leadership position was an aggravating circumstance.

726. Instead of revising the sentence of the Trial Chamber, the Appeals Chamber will substitute its own reasoned sentence for that of a Trial Chamber on the basis of its own findings, a function which the Appeals Chamber considers that it may perform in this case without remitting the case to the Trial Chamber.

783. Neither the Statute nor the Rules of this Tribunal expressly provide that an inference can be drawn from the failure of an accused to give evidence.  At the same time, neither do they state that silence should not “be a consideration in the determination of guilt or innocence”.[1]  Should it have been intended that such adverse consequences could result, the Appeals Chamber concludes that an express provision and warning would have been required under the Statute, setting out the appropriate safeguards.  Therefore, it finds that an absolute prohibition against consideration of silence in the determination of guilt or innocence is guaranteed within the Statute and the Rules, reflecting what is now expressly stated in the Rome Statute.  Similarly, this absolute prohibition must extend to an inference being drawn in the determination of sentence.  The Trial Chamber would have committed an error should it be shown that it relied on Mucić’s failure to give oral testimony as an aggravating factor in determining his sentence.[2]

See also paragraphs 781-782.

302. […] [T]he Appeals Chamber recalls that it is settled jurisprudence of this Tribunal that while a position of authority, even at a high level, does not automatically warrant a harsher sentence, the abuse of such may indeed constitute an aggravating factor.[1] The Appeals Chamber further reiterates, Judge Liu dissenting, that this holds true in the context of a conviction under Article 7(1) of the Statute, including the mode of responsibility for planning and ordering crimes.[2] Before arriving at its conclusion, the Trial Chamber in the instant case specifically took into account Milošević’s high rank within the VRS, the ensuing special responsibility to uphold the standards of international humanitarian law, and the fact that he was highly respected by the SRK staff.[3] In this regard, the Appeals Chamber recalls that whereas the mode of liability of ordering requires that the person giving the order has a position of authority, the abuse of such authority may still be considered an aggravating factor in sentencing.[4] The Trial Chamber was mindful of the fact that the superior position per se does not constitute an aggravating factor and did not consider Milošević’s authority to give orders to that effect.[5] Rather, it took into account the particularly high level of Milošević’s authority and the high esteem of his soldiers in assessing whether his conduct amounted to an abuse of his superior position. Milošević has failed to demonstrate any error in this regard.

303. […] In addition, the Appeals Chamber recalls that the superior’s abuse of his position of a high level of authority may also be taken into consideration for a conviction under Article 7(3) of the Statute.[6]

The Trial Chamber had found that the Appellant encouraged attackers to kill Tutsi women married to Hutu men without convicting the Appellant on this basis because it found that there was insufficient evidence to establish that his conduct directly and substantially contributed to the killing of these Tutsi women, or their children.[1] However, the Trial Chamber considered that the Appellant’s encouragement of the killing of Tutsi women who were married to Hutu could be considered as an aggravating factor.[2] The Appeals Chamber found in para. 141 that “[t]here was no contradiction in the Trial Chamber’s findings in this respect”. In the present case, the question of further aggravation of the sentence of life imprisonment needed not to be addressed.

The Appeals Chamber confirmed that “factors which a Trial Chamber takes into account as aspects of the gravity of the crime cannot additionally be taken into account as separate aggravating circumstances, and vice versa.[1]” (para. 106).  It noted that at Section IX. A. of the Sentencing Judgement, the Trial Chamber addressed the gravity of the offence together with the factors considered in aggravation.  However, the Appeals Chamber found that “the Trial Chamber indeed distinguished between aggravating circumstances on the one hand and the gravity of the offence on the other, albeit considering them under the same heading.” (para. 107).

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.

271. The Appeals Chamber notes that the Trial Chamber did not refer to Ntabakuze’s role as a superior in its discussion of the aggravating circumstances.[1] In its discussion of mitigating factors, the Trial Chamber acknowledged that Ntabakuze was “at times following superior orders in executing [his]] crimes”, but concluded that mitigation was not warranted on this ground based, in part, on Ntabakuze’s “own senior status and stature in the Rwandan army”.[2] Contrary to Ntabakuze’s submission, the Appeals Chamber does not consider that the Trial Chamber’s reliance on Ntabakuze’s senior status and stature to deny mitigation implies that it de facto counted them as aggravating circumstances.[3] Grounds for denying mitigation do not, per se, constitute aggravating circumstances, and there is nothing in the Trial Judgement which suggests that the Trial Chamber considered them as such. The Appeals Chamber accordingly rejects Ntabakuze’s argument that the Trial Chamber relied on Ntabakuze’s role as a superior as an aggravating factor in sentencing.

351.    […] The zeal with which a crime is committed may be viewed as an aggravating factor. […]

357.    The Appeals Chamber finds that the fact that the Accused held a position of authority or leadership may constitute an aggravating factor in sentencing. In the Kambanda Appeal Judgement, this Chamber, in affirming the sentence imposed by the Trial Chamber, expressly noted the Trial Chamber finding that “the aggravating circumstances surrounding the crimes negate the mitigating circumstances, especially since Jean Kambanda occupied a high ministerial post at the time he committed the said crimes.”[1] Furthermore, in the Aleksovski Appeal Judgement, ICTY Appeals Chamber maintained that the Appellant’s “superior responsibility as a warden seriously aggravated the Appellant’s offences, [and that] instead of preventing it, he involved himself in violence against those whom he should have been protecting …”.[2]

358.    The Appeals Chamber would interpret the existing jurisprudence on this point as follows: Article 6(3) imposes liability on a superior if he knew or had reason to know that his subordinate was about to commit such acts or had done so, and had failed to take the necessary and reasonable measures to prevent such acts or punish the perpetrators. The mere fact that an accused has command authority is not an aggravating circumstance in sentencing, in respect of Article 6(3) charge; that goes only to conviction. However, a finding that superior responsibility lies because of such failure to prevent or punish does not preclude a further finding that the manner in which an accused exercises his command can be an aggravating circumstance in relation to sentencing. […]

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. […]