1 Prosecutor v. Duško Tadić,Case No.: IT-94-1-T, Opinion and Judgment, 7 May 1997 (“Opinion and Judgment“), to which Judge McDonald appended a Separate and Dissenting Opinion regarding the applicability of Article 2 of the Statute.

2 Ibid., para. 608.

3 Ibid., paras. 373 and 761.

4 Prosecutor v. . Duško Tadić, Case No.: IT-94-1-T, Sentencing Judgment, 14 July 1997 (“Sentencing Judgment of 14 July 1997“).

5 Prosecutor v.Duško Tadić, Case No.: IT-94-1-A, Judgement, 15 July 1999, (“Appeals Judgement“).

6 Prosecutor v. . Duško Tadić, Case No.: IT-94-1-T, Amended Indictment, 14 Dec. 1995, (“Amended Indictment“).

7 Appeals Judgement, para. 170.

8 Ibid., paras. 233 and 234.

9 Ibid., para. 327.

10 Ibid., para. 28 and Prosecutor v. . Duško Tadić, Case No.: IT-94-1-A, Order Remitting Sentencing to a Trial Chamber, 10 Sept. 1999.

11 Prosecutor v. . Duško Tadić, Case No.: IT-94-1-A, hearing of 30 August 1999, transcript of proceedings (“T.“) pp. 351, 358, 361 and 362.

12 Prosecutor v. Duško Tadić, Case No.: IT-94-Tfe-Rl 17, Order of the President Assigning Judges to a Trial Chamber, 15 Sept. 1999.

13 Additional Material Relevant to Sentencing of . Duško Tadić & Confidential Attachments, filed on 15 Oct. 1999. Subsequently, on 20 Oct. 1999, the Prosecution filed National 14. Provisions Cited by the Prosecution During Sentencing Hearing on 15 October.

14 Pre-Sentencing Hearing, 15 Oct. 1999, T. p. 61

15 On 30 Sept. 1999, the Prosecution filed the Respondent's Sentencing Brief & Confidential Attachments and on 14 Oct. 1999 it filed certain confidential material concerning . Duško Tadić's cooperation with the Prosecution. The latter was filed at the request of the Trial Chamber. On 1 Oct. 1999, the Defence filed a Brief on Sentence Concerning New Convictions Pursuant to the Judgment of the Appeals Chamber Dated 15 July 1999 and the Scheduling Order of 16 September 1999, and on 12 Oct. 1999 it filed certain confidential material relating to . Duško Tadić's alleged cooperation with the Prosecution. Furthermore, on 4 Nov 1999, the Prosecution filed the Prosecution's Brief in Respect of the General Practice Regarding Prison Sentences in Courts of Former Yugoslavia. On the same day the Defence filed the Defendant's Brief on General Practice Regarding Prison Sentences in the Courts of the Former Yugoslavia.

16 Prosecutor v. . Duško Tadić, Case No.: IT-94-Tfc('s-R117, Order for the Preparation of the Sentencing Hearing, 13 Oct. 1999. An Internal Memorandum on the Conduct of Mr. . Duško Tadić whilst in Detention, prepared by the Commanding Officer of the United Nations Detention Unit, was filed on 14 Oct. 1999.

17 The provisions set out below are those currently in force, which, in the opinion of the Trial Chamber, are the correct provisions to apply. In any event, in respect of the provisions relevant to sentencing, there is no distinction in substance between the current version of the Rules and the version of the Rules in force at the time of the Sentencing Judgment of 14 July 1997, which the Prosecution appears to be relying on.

18 Regarding the mandate of the International Tribunal, see Security Council Resolutions 808 and 827 (S/Res/808 (1993) and S/Res/827 (1993)).

19 Prosecutor v.Delalicć et al, Case No.: IT-96-21-T, Judgement, 16 Nov. 1998, paras. 1231 and 1234.

20 Prosecutor v. Fumndžija, Case No.: IT-95-17/1-T, Judgement, 10 Dec. 1998, para. 288. See also The Prosecutor v. Erdemović, Case No.: IT-96-22-T, Sentencing Judgement, 29 Nov. 1996, para. 64, where the Trial Chamber held deterrence and retribution to be the most important purposes for sentences imposed in respect of crimes against humanity.

21 The Prosecutor v. Kayishema and Ruzindana, Case No.: ICTR-95-1-T, Sentence, 21 May 1999, para. 2; The Prosecutor v. Serushago, Case No.: ICTR-98-39-S, Sentence, 5 Feb. 1999, para. 20; The Prosecutor v. Akayesu, Case No.: ICTR-96-4-T, Sentence, 2 Oct. 1998, para. 19 and The Prosecutor v. Kambanda, Case No.: ICTR-97-23-S, Judgement and Sentence, 4 Sept. 1998, para. 28.

22 On 4 Nov. 1999, the Prosecution filed the Prosecution's Brief in Respect of the General Practice Regarding Prison Sentences in Courts of the Former Yugoslavia. On the same day the Defence filed the Defendant's Brief on General Practice Regarding Prison Sentences in the Courts of the Former Yugoslavia.

23 Adopted by the SFRY Assembly at the session of the Federal Council held on September 28, 1976; declared by decree of the President of the Republic on September 28, 1976; published in the Official Gazette SFRY No. 44 of October 8, 1976; a correction was made in the Official Gazette SFRY No. 36 of July 15, 1977; took effect on July 1, 1977.

24 Considering that the Defence during the Pre-Sentencing Hearing on 15 Oct. 1999 argued that the Chamber in this respect should take into account the relevant statutory provisions currently in force (T. pp. 60 to 61), the Trial Chamber understands the latest submission of the Defence to mean that it has changed its position on this issue.

25 See Prosecutor v. Delalic et al., Case No.: IT-96-21-T, Judgement, 16 Nov. 1998, para. 1194; The Prosecutor v. Aleksovski, Case No.: IT-95-14/1-T, Judgement, 25 June 1999, para. 242 and The Prosecutor v. Erdemović, Case No.: IT-96-22-T, Sentencing Judgement, 29 Nov. 1996, paras. 33, 39 and 40. In this context it also bears mentioning that the Trial Chambers of the International Criminal Tribunal for Rwanda in imposing sentence have made similar findings in respect of equivalent Article 23(1) of its Statute, see The Prosecutor v. Serushago, Case No.: ICTR-98-39-S, Sentence, 5 Feb. 1999, para. 18; The Prosecutor v. Akayesu, Case No.: ICTR-96-4-T, Sentence, 2 Oct. 1998, para. 14 and The Prosecutor v. Kambanda, Case No.: ICTR-97-23-S, Judgement and Sentence, 4 Sept. 1998, para. 23.

26 Article 142 of the SFRY Criminal Code.

27 Article 38 of the SFRY Criminal Code.

28 Article 38 of the Criminal Code of the Federation of Bosnia and Herzegovina published by “Official Gazette of Federation of Bosnia and Herzegovina” No 43-98 on November 20, 1998.

29 Sentencing Judgment of 14 July 1997, paras. 11 to 35.

30 Opinion and Judgment, para. 348.

31 ibid, paras. 370, 371.

32 Ibid., para. 373.

33 Appeals Judgement, para. 183.

34 Ibid.

35 Ibid., paras. 185 to 232.

36 Ibid., para. 233.

37 Sentencing Judgment of 14 July 1997, para. 58.

38 Internal Memorandum on the Conduct of Mr. Duško Tadić whilst in Detention, filed on 14 Oct. 1999.

39 Additional Material Relevant to Sentencing of . Duško Tadić & Confidential Attachments, filed on 15 Oct. 1999.

40 Lafave & Israel, Criminal Procedure (2 ed, 1992), p. 1102 (citing Williams v. New York, 337 U.S 241,69 S.Ct. 1079,93 L. Ed. 1337 (1949)).

41 Sentencing Judgment of 14 July 1997, paras. 61 to 72.

42 Prosecutor v. Erdemović, Case No.: IT-96-22-A, Judgement, 7 Oct. 1997, Joint Separate Opinion of Judge McDonald and Judge Vohrah, para. 20 et seq., and Separate and Dissenting Opinion of Judge Stephen, para. 5, where he states “I have had the advantage of reading the Joint Separate Opinion of their Honours Judge McDonald and Judge Vohrah in which they examine in detail three requirements for a valid plea of guilty, that it be voluntary, informed and unambiguous. I agree, with respect, in their conclusion that, while the requirement of voluntariness was satisfied in the present case, the requirement that the plea be an informed plea was not satisfied. I do so for the reasons expressed by their Honours […].“

43 The Prosecutor v. Kambanda, Case No.: ICTR-97-23-S, Judgement and Sentence, 4 Sept. 1998, para. 14; The Prosecutor v. Akayesu, Case No.: ICTR-96-4-T, Sentence, 2 Oct. 1998, paras. 6 to 10; The Prosecutor v. Serushago, Case No.: ICTR-98-39-S, Sentence, 5 Feb. 1999, at paras. 13 to 14; and The Prosecutor v. Kayishema andRuzindana, Case No.: ICTR-95-1-T, Sentence, 21 May 1999, para. 9.

44 In Prosecutor v. Delalic et al, Case No.: IT-96-21-T, Judgement, 16 Nov. 1998, paras. 452 to 497 and 516 to 543 the definitions of the crimes of torture and inhuman treatment are discussed in depth.

45 Pre-Sentencing Hearing, 15 Oct. 1999, T. p. 36.

46 Prosecutor v. . Duško Tadić, Case No.: IT-94-1-D, Decision of the Trial Chamber on the Application by the Prosecutor for a Formal Request for Deferral, 8 Nov. 1994.

1 Prosecutor v. Erdemović, Case No.: IT-96-22-A, Judgement, 7 Oct. 1997 (“Erdemović Judgement“).

2 Prosecutor v. Erdemović, Case No.: IT-96-22-A, Separate and Dissenting Opinion of Judge Li, 7 Oct. 1997 (“Judge Li Separate Opinion“).

3 Id., paras. 18-26.

4 Codified as 18 U.S.C. section 2441.

5 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, 26 Nov. 1968, 8 ILM 68 (1969).

6 Federal Republic of Yugoslavia (Serbia and Montenegro) 1993.

7 See Jia, Bing Bing, “The Differing Concepts of War Crimes and Crimes Against Humanity in International Criminal Law” in Goodwin-Gill, Guy and Talmos, Stefan (eds.), The Reality of International Law: Essays in Honour of Ian Brownlie (Oxford University Press 1999)Google Scholar (citing U. S. v. Pohl et al., in Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10 (Washington DC 1949) (hereafter “Trials of War Criminals“), V, 958, in which defendants Hans Hohberg and Leo Volk were jointly sentenced for war crimes and crimes against humanity; U.S. v. Wilhelm List et al., Trials of War Criminals, XI, 757, in which General Rendulićs conviction under count 4 of a typical crime against humanity (torture, deportation to slave labour and systematic terrorization of inhabitants of occupied territories), did not lead to a much heavier sentence.) Dr. Jia comments that although “the military tribunals sitting at Nuremberg did not adopt a consistent line of reasoning with regard to the difference between war crimes and crimes against humanity … they did not seem to consider that crimes against humanity should be punished more severely than war crimes. For them it was the nature and consequence of the underlying offence and the existence vel non of mitigating circumstances that determined the penalty imposed.” Id., p. 263.

8 Trials of War Criminals, II, 773,

9 Bassiouni, M. Cherif, Crimes Against Humanity in International Law (Dordrecht 1992), 179.Google Scholar

10 Charter of the International Military Tribunal of Nuremberg annexed to the Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, London, 8 Aug. 1945, 85 U.N.T.S. 251.

11 See Articles 20(c) and (d) in the Report of the International Law Commission on the work of its forty-sixth session, GAOR, 49th session, Supplement No. 10 (A/49/10). See also, paragraphs 8 to 10 of the Commentary, dealing with war crimes, and paragraphs 11 to 14 addressing crimes against humanity, 1994 ICC Draft Statute, pp. 73-76. It should be noted that the ILC was not concerned with gradation in terms of the gravity of the crimes falling within the jurisdiction of the Court. Its essential concern was to ensure that the future Court would have jurisdiction only over “the most serious crimes of concern to the international community as a whole.” See Preamble to the 1994 ICC Draft Statute, p. 44, now reflected in Article 5(1) of the ICC Statute.

12 1994 ICC Draft Statute, p. 76.

13 Report of the International Law Commission on the work of its forty-eighth session, GAOR, 51st session, Supplement No. 10 (A/51/10).

14 See Article 18 (crimes against humanity) and Article 20 (war crimes) of the ILC Draft Code and associated commentaries.

15 See ILC Draft Code, pp. 93 and 100, respectively.

16 See e.g. ILC Draft Code, p. 42.

17 See Article 22 of the Draft Code of Crimes Against the Peace and Security of Mankind, Report of the International Law Commission on the work of its forty-third session, GAOR, 46th session, Supplement No. 10 (A/46/10), p. 269.

18 Id., p. 247.

19 Rome Statute of the International Criminal Court, 17 July 1998, A/CONF.183/9. The 1994 ICC Draft Statute was one of the basic documents used both in the preparatory work and in the conference which adopted the ICC Statute.

20 See Articles 3 and 5 of the Statute.

21 Report of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808 (1993) S/25704.

22 See e.g., paragraph 3.7 of the Indictment (Amended) in Prosecutor v. Tadić, Case No.: IT-94-1-T; paragraph 12 of the Second Amended Indictment in Prosecutor v. Jelisić, Case No.: IT-95-10-PT; paragraph 16 of the Indictment in Prosecutor v. Krstić, Case No.: IT-98-33.

23 Statute of the International Criminal Tribunal for Rwanda, U.N. Doc. S/RES/955 (8 Nov.1994).

24 Judge Li Separate Opinion, para. 20.

25 The reference to “serious violations” in Article 23, paragraph 1, Article 10, paragraph 1 and Article 29, paragraph 1 of the Statute, has the same meaning as the phrase in Article 1 of the Statute.

26 Prosecutor v. Erdemović, Case No.: IT-96-22-T bis, Separate Opinion of Judge Shahabuddeen, 5 March 1998.

27 See Schwelb, Egon, Crimes Against Humanity, 23 British Yearbook of International Law, 178, 195 (1946).Google Scholar

28 See e.g., Prosecutor v. Tadić, Case No.: IT-94-1-T, Decision on the Defence Motion on the Form of the Indictment, 14Nov. 1995, para. 17.

29 Prosecutor v. Tadić, Case No.: IT-94-1-A, Judgement, 15 July 1999, paras. 231-233.

30 See paras. 11 and 12 of this Judgment for a complete discussion of the submissions made by both parties in respect of the general practice regarding prison sentences in the former Yugoslavia, as it relates to these sentencing proceedings.