The Prosecutor v. Zejnil Delalic and Zdravko Mucic, Hazim Delic and Esad Landzo

Judgment of the Trial Chamber, 16 November 1998, Case No. IT-96-21-T; Judgment of the Appeals Chamber, 20 February 2001, Case No. IT-96-21-A; Judgment of the Trial Chamber, 9 October 2001, Case No. IT-96-21-Tbis-R117; Judgment of the Second Appeals Chamber, 8 April 2003, Case No. IT-96-21-Abis
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On 19 March 1996, an indictment was issued against the four accused ZD, ZM, HD and EL. The indictment related to the events that took place in 1992 in a prison camp near the town of Celebici in central Bosnia and Herzegovina. The accused were charged with grave breaches of the Geneva Conventions of 1949, under Article 2 of the International Criminal Tribunal for Yugoslavia (ICTY) Statute, and violations of the laws or customs of war, under Art 3 of the ICTY Statute, in connection with acts allegedly perpetrated within the Celebici camp.

The Celebici camp consisted of barracks and warehouses covering an area of about 50,000 square meters with a railway line running through the middle. The Celebici barracks and warehouses were first used for the detention of prisoners in the latter part of April 1992 and the majority of the prisoners who were detained between April and December 1992 were men, captured during and after the military operations at Bradina and Donje Selo and the surrounding areas.

ZD is alleged to have exercised authority over the Celebici prison-camp in his role first as coordinator of the Bosnian Muslim and Bosnian Croat forces in the area, and later as Commander of the First Tactical Group of the Bosnian Army. EL was alleged to have worked as a guard at the Celebici camp. HD and ZM were alleged to have worked within the camp and to have acted in the capacity of commanders, with ZM being commander, and HD a deputy commander from May to November 1992, when he replaced ZM as commander.

EL and HD were primarily charged with individual criminal responsibility pursuant to Art 7(1) of the ICTY Statute, as direct participants in certain of the crimes alleged, including acts of murder, torture and inhuman treatment. ZM and ZD were primarily charged as superiors with responsibility for the operation of the Celebici camp, pursuant to Art 7(3) of the Statute, for crimes committed by their subordinates, including those alleged to have been committed by EL and HD. Several counts in the indictment also charged HD in his capacity as a superior with command responsibility.

 

[Adapted from INTERIGHTS summary, with permission]

The Trial Chamber held:

(1) ZD was not guilty on all counts on the basis that he did not have sufficient command and control over the Celebici camp and its guards to find him criminally responsible as a superior for the crime which they committed in the camp;

(2) ZM was guilty under the principles of superior responsibility for the crimes committed by his subordinates, including murder, torture and inhuman treatment as he was the de facto commander of the Celebici camp and exercised de facto authority over the prison-camp, the deputy commander and the guards;

(3) HD was found guilty on the basis of personal responsibility for crimes including murder, torture and inhuman treatment;

(4) HD and EL were found guilty under counts 1 and 2, of willful killing and murder;

(5) HD was guilty of willful killing, under count 3 and of murder, under count 4;

(6) due to his participation in a prolonged and vicious beating (at the very least as an aider and abettor who knowingly facilitated the beating inflicted by others), EL was guilty under counts 5 and 6;

(7) EL was guilty under counts 7 and 8 for the willful killing and murder of a prisoner;

(8) it was clear that HD and EL were the perpetrators of heinous acts which caused great physical suffering to a prisoner that resulted in death and were guilty of willfully causing great suffering or serious injury to body or health, a grave breach of the Geneva Conventions of 1949 punishable under Art 2 of the Statute, and cruel treatment, a violation of the laws or customs of war punishable under Art 3 of the Statute;

(9) ZD and HD were not guilty of willful killings and murders, as charged in counts 13 and 14;

(10) ZM was in a de facto position of superior authority over the Celebici prison, and knew or had reason to know of the violations of international humanitarian law committed in the Celebici camp, but failed to prevent these acts or punish the perpetrators thereof and, as such, was found responsible for the willful killing and murder of five prisoners;

(11) EL was guilty of torture under counts 15 and 16;

(12) acts of rape were intentionally committed by HD who was an official of the Bosnian authorities running the prison-camp. As there can be no question that these rapes caused severe mental pain and suffering, HD was guilty of torture, under counts 18 and 19;

(13) HD was found guilty of torture under counts 21 and 22 for the multiple rapes of a female prisoner, Ms A;

(14) EL was found guilty of torture under counts 24 and 25;

(15) HD and EL were not guilty under counts 27, 28 and 29;

(16) EL was guilty of torture and cruel treatment under counts 30 and 31;

(17) ZD and HD had respectively been found not to have exercised superior authority over the Celebici prison-camp and, as such, were not guilty of torture or cruel treatment, as charged in counts 33 to 35;

(18) ZM was guilty of torture under Arts 2 and 3 of the Statute, as charged in counts 33 and 34;

(19) ZM was responsible pursuant to Art 7(3) of the Statute for willfully causing great suffering or serious injury to body or health, and the inhuman and cruel treatment of various prisoners;

(20) HD deliberately used an electric shock device on numerous prisoners in the Celebici camp and, as the use of this device caused pain, burns, convulsions, twitching and scaring, HD was guilty of inhuman treatment, under count 42 and of cruel treatment, under count 43;

(21) ZD and HD were not guilty of inhuman and cruel treatment, as charged in counts 44 and 45 due to the finding that they did not have positions of superior authority;

(22) ZM was responsible pursuant to Art 7(3) of the Statute for inhuman treatment and the cruel treatment of various prisoners;

(23) the chronic physical deprivation and the constant fear prevailing in the Celebici camp caused serious mental and physical suffering to the detainees and clearly constituted an attack upon the dignity of the detainees;

(24) accordingly HD, EL and ZM were guilty, pursuant to Art 7(1) of the Statute, of the offence of willfully causing great suffering or serious injury to body or health, under Art 2 of the Statute, and cruel treatment, under Art 3 of the Statute, as charged in counts 46 and 47;

(25) the detention of civilians in the Celebici camp was not in conformity with the relevant provisions of Geneva Convention IV and constituted the offence of unlawful confinement of civilians, under Art 2 of the Statute;

(26) it had been shown that ZM was in a de facto position of superior authority over the Celebici camp and was the individual with primary responsibility for the continued detention of civilians in the prison-camp;

(27) by omitting to ensure that a proper inquiry was undertaken into the status of the detainees, and that those civilians who could not lawfully be detained were immediately released, ZM participated in the unlawful confinement of civilians in the Celebici camp and was guilty, pursuant to Art 7(1) of the Statute, of the unlawful confinement of civilians, as charged under count 48;

(28) the offences of plunder, as alleged, could not be considered to constitute such serious violations of international humanitarian law that they fall within the subject matter jurisdiction of the ICTY pursuant to Art 1 of the Statute;

(29) ZM, HD, EL were sentenced to seven, twenty and fifteen years imprisonment, respectively, and ZD was acquitted.

 

On 20 February 2001, the Appeals Chamber:

(1) upheld an appeal against cumulative convictions based upon the same acts for both grave breaches of the Geneva Conventions and violations of the laws and customs of war, dismissing the charges for the violations of the laws or customs of war;

(2) upheld an appeal by HD against one of his convictions for willful killings;

(3) upheld an appeal by the prosecution against the inadequacy of the sentencing imposed upon ZM; and (4) upheld a complaint by ZM that the Trial Chamber had erred when sentencing by making an adverse reference to the fact that he had not given evidence at trial.

 

On 9 October 2001, the case went back to a new Trial Chamber who determined:

(1) no adjustment should be made for the dismissal of the cumulative convictions;

(2) the 20-year sentence imposed upon HD should be reduced to 18 years to reflect the quashing of his conviction on one count of willful killing;

(3) there should be a ‘small reduction’ given to ZM as a result of the adverse reference by the original Trial Chamber when sentencing him to the fact that he had not given evidence at the trial;

and (4) an appropriate revised sentence for ZM was a sentence of imprisonment for nine years.

 

On 8 April 2003, the Second Appeals Chamber held:

(1) the appeals against sentence were dismissed;

(2) the sentences imposed by the remitted Trial Chamber on 9 October 2001 were confirmed;

(3) the appellants were entitled to credit for the time they have spent in custody;

and (4) the application by HD to have his appeal against conviction reconsidered was rejected.

 

[Adapted from INTERIGHTS summary, with permission]

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