Post-conflict conduct

Notion(s) Filing Case
Judgement on Sentencing Appeal - 30.08.2005 JOKIĆ Miodrag

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.

[1] Brief in Reply, para. 19.

[2] Ibid.

[3] Ibid.

[4] Sentencing Judgement, paras 90-92.

[5] Ibid., para. 103.

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Notion(s) Filing Case
Judgement on Sentencing Appeal - 18.07.2005 BABIĆ Milan

55. The Appeals Chamber notes that an accused’s conduct after committing a crime is relevant in that it reveals how aware he was of the wrongfulness of his actions and his intention to “make amends” by, among other things, facilitating the task of the International Tribunal.[1] In the instant case, the Trial Chamber acknowledged that conduct subsequent to the crime had been accepted in other cases before the International Tribunal, “where the convicted person acted immediately after the commission of the crime to alleviate the suffering of victims.”[2]  In support of such assertion, the Trial Chamber referred to the Plavšić case.[3] Since the Trial Chamber was not satisfied that conclusive evidence had been proffered to show that the Appellant alleviated the suffering of victims after the commission of the crime of persecution or at the end of the armed conflict, it held that his post-conflict conduct did not amount to a mitigating circumstance[4] and found that such conduct concerned matters which had already been considered, such as cooperation and acceptance of responsibility.[5]

56. The Appeals Chamber notes, however, that the Trial Chamber in the Plavšić case in fact gave significant weight as a factor in mitigation to Biljana Plavšić’s post-conflict conduct, namely her contribution to the advancement of the Dayton Agreement and her attempt to remove obstructive officials from office,[6] because “she made a considerable contribution to peace in the region” without reference to the alleviation of the suffering of victims.[7] The Appeals Chamber thus considers that the Sentencing Judgement incorrectly interpreted the Plavšić Trial Chamber’s assessment of Biljana Plavšić’s “post-conflict conduct.”

59. The Appeals Chamber is satisfied that the Appellant attempted to further peace after the commission of the crime of persecution. The Appeals Chamber finds that the Trial Chamber erred in law in categorically refusing to take these attempts to further peace into account as a mitigating factor on the basis that they did not directly alleviate the suffering of the victims.

61. The Appeals Chamber notes that in light of the mandate of the International Tribunal under Chapter VII of the UN Charter, an attempt to further peace in the former Yugoslavia is in general relevant as a mitigating circumstance. […].

[1] Blaškić Trial Judgement, para. 773. See also Blaškić Appeal Judgement, para. 696, where the Appeals Chamber held that the factors taken into account as evidence in mitigation include, inter alia, the character of the accused subsequent to the conflict.

[2] Sentencing Judgement, para. 94 (footnote omitted).

[3] Sentencing Judgement, para. 94: “For instance, in the Plavšić case, the Trial Chamber accepted Biljana Plavšić’s post-conflict conduct as a mitigating factor because after the cessation of hostilities she had demonstrated considerable support for the 1995 General Framework Agreement for Peace in Bosnia-Herzegovina (Dayton Agreement) and had attempted to remove obstructive officials from office in order to promote peace.”

[4] Sentencing Judgement, paras 95 and 96.

[5] Sentencing Judgement, para. 95.

[6] Plavšić Sentencing Judgement, paras 85-93.

[7] Ibid., para. 94.

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Notion(s) Filing Case
Appeal Judgement - 09.05.2007 BLAGOJEVIĆ & JOKIĆ

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.

[1] Babić Sentencing Appeal Judgement, para. 43.

[2] Babić Sentencing Appeal Judgement, para. 43, citing Miodrag Jokić Sentencing Judgement, paras. 90, 92 (finding that Miodrag Jokić’s “post-conflict conduct” “reflect[ed] his sincere remorse”).

[3] Babić Sentencing Appeal Judgement, para. 43, quoting Čelebići Appeal Judgement, para. 780.

[4] The Appeals Chamber notes that remorse is not mentioned in the operative paragraphs considering Blagojević’s de-mining activities. See Trial Judgement, paras. 858-860.

[5] Plavsić Sentencing Judgement, para. 94.

[6] Miodrag Jokić Sentencing Judgement, para. 91.

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