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PROSECUTOR v. RANKO ČEŠIĆ
Case No. IT-95-10/1
International Criminal Tribunal for the Former Yugoslavia
Sentencing Judgment
March 11, 2004

Judges:
Judge Alphons Orie
Judge Liu Daqun
Judge Amin el Mahdi

Prosecution:
Mark Harmon
Thomas Hannis

Defense:
Mihajlo Bakrac

Gender Keyword(s): Consent; Detention Centers; Humiliating and Degrading Treatment; Rape; Sexual Assault/Attack/Abuse

Procedural History: On June 30, 1995, a joint indictment against Goran Jelisić and Ranko Češić was submitted by the Office of the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia (ICTY) ( 1). The indictment was confirmed on July 21, 1995 ( 1).1 The initial indictment contained 30 charges against Češić, relating to acts and omissions that took place between April 17 and November 20, 1992, in the Brcko municipality in Bosnia and Herzegovina of the Former Yugoslavia.2 Specifically, the indictment charged Češić—a member of the Bosnian-Serb Reserve Police Corp in Brcko—with individual criminal responsibility for multiple grave breaches of the Geneva Conventions, violations of the laws and customs of war, genocide, and crimes against humanity.3 These charges were supported by allegations of Češić’s role in forcibly expelling residents and confining them under inhumane conditions in detention centers, including Luka Camp, Brcko Partisan Sports Hall, and Brezovo Polje4 and by allegations that at Luka Camp, Serbian forces beat and systematically killed hundreds of non-Serb detainees who Češić brought to these facilities pursuant to his position. The charges were also supported by allegations that Češić personally killed several of the detainees.5 Three of these charges in the original indictment concerned gender or sexual-based violence: inhuman treatment as a grave breach of the Geneva Conventions, humiliating and degrading treatment as a violation of the laws and customs of war, and the crime against humanity of “rape, which includes other forms of sexual assault.”6 All three charges were supported by allegations that at Luka Camp—a detention facility in the Brcko area where Croat and Muslim civilians were held7—Češić “instigated, ordered, or committed” these crimes when he allegedly “forced, at gunpoint, Muslim detainees A and B, who were brothers detained there, to beat each other and perform sexual acts on each other in the presence of others, causing them great humiliation and degradation.”8 An amended indictment filed on March 3, 1998, and confirmed on May 12, 1998, removed all of the charges of grave breaches of the Geneva Conventions, including the charge of inhuman treatment ( 1).9 The other two charges related to the sexual assault of Muslim detainees A and B remained.10 A second amended indictment was confirmed on October 19, 1998, that further reduced the total number of counts, omitting charges from the previous indictment for two killings, allegations of torture of one individual, and two counts concerning the general conditions at Luka Camp (cruel treatment as a violation of the laws and customs of war and inhumane acts as a crime against humanity), but there were no changes regarding the remaining two charges supported by allegations of sexual assault against Muslim detainees A and B.11 A third amended indictment, pertaining only to Ranko Češić, was filed on November 26, 2002 and included a total of 12 counts; six counts of murder related to the alleged killings of 10 different victims and the two charges related to the sexual assault of Muslim detainees A and B—rape as a crime against humanity and humiliating and degrading treatment as a war crime, discussed in more detail in the “Sexual Assault” section below.12 Češić was arrested in Belgrade on May 25, 2002, and transferred to The Hague on June 17, 2002 ( 2). In his initial appearance before the Trial Chamber on June 20, 2002, Češić pled not guilty to all of the charges ( 4). However, on October 7, 2003, a plea agreement was jointly filed, and at a hearing on October 8, 2003, Češić pled guilty to all 12 counts charged in exchange for full cooperation with the Office of the Prosecutor concerning his knowledge of the events of the armed conflict in Bosnia and Herzegovina ( 4).13 The Chamber entered a finding of guilt the same day ( 4). A sentencing hearing was held on November 27, 2003 ( 5). This is the digest of the Trial Chamber Sentencing Judgment.

Disposition: As noted above, a joint plea agreement was reached wherein Češić pled guilty to all 12 counts. Accordingly, the Chamber finds Češić guilty of murder and rape as crimes against humanity and murder and humiliating and degrading treatment as war crimes. Češić is sentenced to 18 years of imprisonment with credit for time served ( 111).

Key Gender-Based Holdings

CONSENT:
• The Chamber notes that “Ranko Češić admitted that, on approximately 11 May 1992, he intentionally forced, at gunpoint, two Muslim brothers detained at Luka Camp to perform fellatio on each other in the presence of others. Ranko Češić acknowledged that he was fully aware that this was taking place without the consent of the victims” ( 13).

DETENTION CENTERS:
• As noted above, Serbian militia forcibly confined Croat and Muslim residents of Brcko in detention facilities, including the Brcko Partisan Sports Hall, Brezovo Polje, and Luka Camp from April through July 1994.14 As noted in detail below, Češić admitted to ordering the sexual assault of two Muslim brothers at Luka Camp detention center ( 13-14). These facts support the charge and conviction for humiliating and degrading treatment as a war crime and rape as a crime against humanity ( 52).

HUMILIATING AND DEGRADING TREATMENT:
• As noted in detail below, Češić admitted to ordering the sexual assault of two Muslim brothers at Luka Camp ( 13-14). These facts support the charge and conviction for humiliating and degrading treatment as a war crime.
RAPE:
• As noted in detail below, Češić admitted to ordering the sexual assault of two Muslim brothers at Luka Camp ( 13-14). These facts support the charge and conviction for the crime against humanity of rape as well as the war crime of humiliating and degrading treatment ( 52).

SEXUAL ASSAULT/ATTACK/ABUSE:
• Češić admitted to forcing at gunpoint two Muslim brothers who were detained at Luka Camp to perform fellatio on one another for approximately 45 minutes while other guards watched and laughed ( 13-14). In addition, Češić ordered guards to make sure that the brothers did not stop during a period of time while he was in an adjoining room (id.). Witnesses testified that the brothers had been neighbors of Češić before the war (id.). The Chamber finds that Češić initiated the sexual assault on the victims by ordering it, and is therefore a perpetrator of the crime ( 36). He is therefore convicted for having “personally committed” the crimes ( 37). These facts support the charge and conviction for humiliating and degrading treatment as a war crime and rape as crime against humanity ( 52).

Other Issues:

SENTENCING:
• The Chamber notes that “the main feature in sentencing is the gravity of the crime ( 31). With regard to the sexual assault, the Chamber finds that the “family relationship [between the victims] and the fact that they were watched by others make the offence of humiliating and degrading treatment particularly serious” and that “[t]he violation of the moral and physical integrity of the victims justifies that the rape be considered particularly serious as well” ( 35). The Chamber acknowledges the fact that a factor that is an element of a crime cannot also be considered an aggravating factor in sentencing for that crime ( 53). Thus, the particular humiliation suffered by the victims in the sexual assault could not be considered an aggravating factor for the count of humiliating and degrading treatment since humiliation is already an element of that offense; however, it could be considered an aggravating factor for the rape count ( 53). The Chamber observes that rape is inherently humiliating but acknowledges that the facts that the victims were brothers and that the guards were present and laughing at them during the assault exacerbated the humiliation to the point of constituting an aggravating factor for sentencing purposes ( 53-54). However, the Chamber holds that in determining Češić’s sentence, it does not consider the exacerbated humiliation twice, as in once for the humiliating and degrading treatment conviction and once for the rape conviction ( 54). Instead, “it will only impose one single sentence and eventually consider the degree of humiliation only once in the final evaluation” ( 54).
• The Chamber also notes that the impact on the victims’ relatives and friends is among the factors considered in assessing the gravity of the crime ( 39). However, with respect to the statements of mental suffering of the parents of the victims of the sexual assault, the Chamber finds that they are not sufficient to establish that it was caused solely by the crimes of which Češić is convicted and is therefore not considered in assessing the gravity of the crime ( 43). Additionally, the Chamber finds that “the statements [by victims’ friends and family members] fail to establish that the persons affected by the murder and sexual assault of the victims experienced significantly more suffering than that usually incurred by the violent death of, or the inhumane acts suffered by, beloved ones” ( 44).
• In response to the Prosecution’s allegations at sentencing that Češić had raped women during the same period of time as the crimes for which he was convicted, the Chamber holds that the Prosecution may introduce evidence of prior criminal acts for sentencing purposes and need not prove them beyond a reasonable doubt to rebut the Defense’s evidence of Češić’s good character as a mitigating factor ( 77). However, in this case, the Chamber finds that the Prosecution’s allegations were unreliable, and it notes the Prosecution’s decision not to indict Češić for these crimes ( 82).

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1 The cases against Goran Jelisić and Ranko Češić were severed in 2002.

2 The Prosecutor v. Goran Jelisić and Ranko Češić, Initial Indictment, 9, 17-42 (1995-07-21).

3 Id. 17-42.

4 Id. 1, 3-4.

5 Id. 2-3, 5.

6 Id. 33.

7 Id. 1-6.

8 Id. 33.

9 The Prosecutor v. Goran Jelisić and Ranko Češić, Amended Indictment, March 3, 1998.

10 Id. 32.

11 The Prosecutor v. Goran Jelisić and Ranko Češić, Second Amended Indictment, October 19, 1998, 15-36.

12 The Prosecutor v. Ranko Češić, Third Amended Indictment, November 26, 2002, 6-17.

13 The Prosecutor v. Ranko Češić, Plea Agreement, October 7, 2003, 1, 3, 10.

14 Id. 1.

GENDER JURISPRUDENCE AND
INTERNATIONAL CRIMINAL LAW PROJECT

American University Washington College of Law
4300 Nebraska Ave NW - Washington, DC 20016