54. The Appellant further submits that post-conflict conduct is a “separate and distinct mitigating circumstance” that should not be “commingled with remorse”.[1] In his view, the negotiated ceasefire and his political activities in the New Democratic Party should be characterised as steps taken by the Appellant “to improve the situation and alleviate suffering”, which is a mitigating circumstance “separate and distinct from remorse”.[2] He adds that to consider these factors “as remorse is an abuse of discretion which creates an injustice to the Appellant.”[3] The Appeals Chamber finds that this argument, advanced by the Appellant for the first time in his Brief in Reply, amounts to a new allegation. Nonetheless, the Appeals Chamber decides to exercise its discretionary power to briefly address the Appellant’s new argument. The Trial Chamber took the Appellant’s post-conflict conduct into account as a factor in mitigation[4] and considered it in its final determination, when it found that the Appellant’s remorse was a relevant mitigating circumstance “also shown by the conduct concomitant and posterior to the committed crimes.”[5] The Appeals Chamber finds that it was within the discretion of the Trial Chamber to consider the Appellant’s post-conflict conduct as an expression of his sincere remorse, instead of assessing his post-conflict conduct as a distinct mitigating circumstance. The Trial Chamber did not err in this respect.

328. The Appeals Chamber holds that the Trial Chamber permissibly considered Blagojević’s participation in de-mining activities under the broad category of post-conflict conduct that goes to the character of the accused. In the Babić Sentencing Appeal, the Appeals Chamber observed that “[n]either the Statute nor the Rules exhaustively define the factors which may be taken into account by a Trial Chamber in mitigation or aggravation of a sentence.”[1] In that case, the Appeals Chamber provided a non-exhaustive list of twelve factors that have been taken into account in connection with mitigation. Notably, the Babić Appeals Chamber placed remorse within the broader context of the “character of the accused after the conflict”.[2] The Appeals Chamber did not specify how other post-conflict conduct – distinguishable from remorse – could evidence the character of the accused in mitigation of a sentence. Leaving such considerations to the Trial Chambers, the Appeals Chamber recognized that they are “endowed with a considerable degree of discretion in deciding on the factors which may be taken into account”.[3] In the present case, the Trial Chamber considered that Blagojević’s active engagement in planning, managing, and organizing a system of de-mining in the army of the Republika Srpska was a relevant mitigating circumstance, without placing it under the rubric of remorse.[4]

330. The Appeals Chamber […] considers that conduct of an accused that promotes reconciliation in the former Yugoslavia may be considered as a mitigating circumstance whether or not it is directly connected to the harm the accused caused. The Appeals Chamber observes that the Plavsić and Miodrag Jokić cases do not stand for a different proposition. In the Plavsić Sentencing Judgement, the Trial Chamber credited Biljana Plavsić for “ensuring that the Dayton Agreement was accepted and implemented in Republika Srpska.”[5] In the case of Miodrag Jokić, the Trial Chamber credited him for post-war “participat[ion] in political activities programmatically aimed at promoting a peaceful solution to the conflicts in the region.”[6] Similarly, the Trial Chamber here credited Blagojević for taking a leadership role in implementing one aspect of the Dayton Peace Accords, as previous Trial Chambers, cited by the Prosecution, have credited convicted persons for implementing that agreement.