Judgement Yugoslavia IHL Assingment

UNITED
NATIONS
International Tribunal for the Case No. IT-95-17-S

Prosecution of Persons
Responsible for Serious Violations of Date: 7 December 2005
International Humanitarian Law
Committed in the Territory of
Original: ENGLISH
former Yugoslavia since 1991
IN THE TRIAL CHAMBER
Before: Judge Iain Bonomy, Presiding

Judge Patrick Robinson
Judge O-Gon Kwon
Registrar: Mr. Hans Holthuis
Judgement of: 7 December 2005
PROSECUTOR
v.
MIROSLAV BRALO
SENTENCING JUDGEMENT
The Office of the Prosecutor:
Mr. Mark Harmon
Counsel for Miroslav Bralo:
Mr. Jonathan Cooper

CONTENTS
I. INTRODUCTION AND PROCEDURAL HISTORY .............................................................1
A. INTRODUCTION ..........................................................................................................................1
B. THE PLEA AGREEMENT ..............................................................................................................2
C. THE SENTENCING PROCEEDINGS ................................................................................................3
II. FACTUAL BASIS OF GUILTY PLEA ....................................................................................4
III. APPLICABLE LAW...................................................................................................................6
A. THE STATUTE AND RULES ..........................................................................................................6

B. GENERAL CONSIDERATIONS .......................................................................................................7
IV. SENTENCING FACTORS ........................................................................................................8
A. THE GRAVITY OF THE CRIMES AND AGGRAVATING CIRCUMSTANCES .........................................8

1. Nature of the crimes ..............................................................................................................9
2. Impact on victims ................................................................................................................13
B. MITIGATING CIRCUMSTANCES .................................................................................................14
1. Arguments of the Parties .....................................................................................................15
2. Discussion ...........................................................................................................................16
(a) Personal background of Bralo and prior character.............................................................. 16
(b) Circumstances of Bralo prior to and surrounding his commission of the offences,
and use of Bralo by his superiors ....................................................................................... 17
(c) Time period covered by the Indictment .............................................................................. 20
(d) Sheltering of others ............................................................................................................. 21
(e) Voluntary surrender, guilty plea, remorse, and steps towards rehabilitation ...................... 21
(f) Co-operation with the Office of the Prosecutor................................................................... 24
(g) Behaviour in the United Nations Detention Unit................................................................ 27
3. Conclusion...........................................................................................................................27
C. THE GENERAL PRACTICE REGARDING PRISON SENTENCES IN THE COURTS OF THE
FORMER YUGOSLAVIA ............................................................................................................28
V. TRIAL CHAMBER’S DETERMINATION OF SENTENCE ...............................................30
A. SUBMISSIONS OF THE PARTIES .................................................................................................30

B. FINDINGS ..................................................................................................................................31
C. CREDIT FOR TIME SERVED .......................................................................................................32
VI. DISPOSITION...........................................................................................................................33
I. INTRODUCTION AND PROCEDURAL HISTORY
A. Introduction
1. Miroslav Bralo was indicted by the International Tribunal for the Prosecution of Persons
Responsible for Serious Violations of International Humanitarian Law Committed in the Territory
of the former Yugoslavia since 1991 (“Tribunal”) in a sealed indictment confirmed on
10 November 1995 by Judge McDonald. At that time, Anto Furundžija and two others were also
named on the indictment as co-accused. Furundžija was transferred to the Tribunal in December
1997, and was convicted and sentenced to ten years imprisonment.1 In July 2000, the Appeals
Chamber upheld his conviction and sentence.2 On 21 December 1998, a revised version of the
indictment against Miroslav Bralo (“Accused”) was filed, also under seal, which differed from the
original indictment only in the removal of the names of, and charges against, his co-accused. In
October 2004, Judge Kwon issued an order vacating the original order for non-disclosure of the
indictment, and instructing the Registrar to release the warrant of arrest and order for surrender of
the Accused.3 Thus, until July 2005, the operative indictment against the Accused was that filed on
21 December 1998, charging him with nine counts of grave breaches of the Geneva Conventions
and twelve counts of violations of the laws or customs of war.
2. On 10 November 2004, the Accused surrendered in Bosnia and Herzegovina and was
transferred to the Tribunal shortly thereafter. On 15 November 2004, an initial appearance was held
before Judge El Mahdi, and the Accused was granted a period of thirty days in which to consider
his plea. At a further hearing before Judge El Mahdi on 14 December 2004, he pleaded not guilty
to all 21 counts of the indictment.
3. The Office of the Prosecutor (“Prosecution”) filed a proposed amended indictment on

19 July 2005, immediately prior to a hearing before Trial Chamber I. At that hearing, the
Prosecution stated that it had “streamlined” the previous indictment, reducing the number of counts
from twenty-one to eight.4 These eight included one new charge of persecution as a crime against
humanity. On the same date, the Prosecution filed a Plea Agreement pursuant to Rule 62 ter of the
1
Prosecutor v. Furundžija, Case No. IT-95-17/1-T, Judgement, 10 December 1998 (“Furundžija Trial Judgement”).
2
Prosecutor v. Furundžija, Case No. IT-95-17/1-A, Judgement, 21 July 2000.
3
Prosecutor v. Bralo, Case No. IT-95-17-I, Order on Motion for Vacation of Order for Non-Disclosure and for
Release of Confidential Documents, 12 October 2004.
4
Bralo, Transcript, T. 33 (19 July 2005).
1
Case No. IT-95-17-S 7 December 2005
Rules of Procedure and Evidence of the Tribunal (“Rules”), in which the Accused agreed to plead
guilty to all eight counts of the amended indictment (“Plea Agreement” or “Agreement”). At the
hearing on 19 July, Trial Chamber I orally confirmed the amended indictment (“Indictment”) and
the Accused (hereafter referred to as “Bralo”) formally entered his guilty pleas to each of the eight
counts. The Trial Chamber accepted the guilty pleas and entered a conviction for each of the eight
counts charged.5
4. On 14 September 2005, Trial Chamber I issued an order directing the Prosecution and the
Defence of Miroslav Bralo (“Defence”) to submit their Sentencing Briefs no later than
23 September 2005. The Trial Chamber also scheduled a Sentencing Hearing for 10 October 2005.
Subsequently, the Prosecution and the Defence were granted an extension of time until
30 September 2005 to file their Sentencing Briefs. However, on 27 September 2005, the President
of the Tribunal issued an order re-assigning the case to Trial Chamber III.6 On 29 September 2005,
following the submission by the Defence of a motion for a further extension of time in which to file
its Sentencing Brief, this Trial Chamber re-scheduled the Sentencing Hearing for 20 October 2005,
and ordered the Prosecution and the Defence to file their Sentencing Briefs by 10 October 2005.7
B. The Plea Agreement
5. In the Plea Agreement, Bralo agrees to plead guilty to the eight charges contained in the
Indictment, being:
1. Persecutions on political, racial and religious grounds, a crime against humanity punishable
under Articles 5(h) and 7(1) of the Statute of the Tribunal (“Statute”), (Count 1);
2. Murder, a violation of the laws or customs of war, punishable under Articles 3 and 7(1) of
the Statute, (Count 2);
3. Torture or inhuman treatment, a grave breach of the Geneva Conventions of 12 August
1949, punishable under Articles 2(b) and 7(1) of the Statute, (Count 3);
4. Torture, a violation of the laws or customs of war, punishable under Articles 3 and 7(1) of
the Statute, (Count 4);
5
Bralo, Transcript, T. 44 (19 July 2005).
6
Prosecutor v. Bralo, Case No. IT-95-17-S (“Bralo Sentencing”), Order Assigning a Case to a Trial Chamber,
27 September 2005.
7
Bralo Sentencing, Decision on Confidential Motion for Extension of Time and Order Scheduling a Sentencing
Hearing, 29 September 2005.
2
5. Outrages upon personal dignity including rape, a violation of the laws or customs of war,
punishable under Articles 3 and 7(1) of the Statute, (Count 5);
6. Unlawful confinement, a grave breach of the Geneva Conventions of 12 August 1949,
punishable under Articles 2(g) and 7(1) of the Statute, (Count 6);
7. Unlawful confinement, a grave breach of the Geneva Conventions of 12 August 1949,
punishable under Articles 2(g) and 7(1) of the Statute, (Count 7); and
8. Inhuman treatment, a grave breach of the Geneva Conventions of 12 August 1949,
punishable under Articles 2(b) and 7(1) of the Statute, (Count 8).
6. The Agreement also states that Bralo and the Prosecution agree that the guilty pleas
“represent a full accounting of [Bralo’s] criminal behaviour for the events charged” and that “no
promises or inducements have been made by the Prosecutor” to persuade Bralo to enter into the
Agreement.8
7. The Factual Basis appended to the Agreement sets out the facts underlying the charges
against Bralo. The Trial Chamber may rely upon these facts, discussed in Section II below, as
proved, and base its determination of sentence upon them.
C. The Sentencing Proceedings
8. In its Sentencing Brief filed on 10 October 2005 (“Prosecution Brief”), the Prosecution
outlines the factors it considers relevant, and makes submissions on aggravating and mitigating
circumstances.9 Appended to the Brief are several attachments, including photographs and
statements from some of the victims of Bralo’s crimes. The Defence filed its Sentencing Brief
confidentially on 10 October 2005, making submissions about the circumstances of the crimes
committed and on the mitigating circumstances that it wishes the Trial Chamber to consider.10 The
Defence also appended documents intended to assist the Trial Chamber in determining sentence.
These included statements from Bralo and from others familiar with him. On 20 October 2005, the
day of the Sentencing Hearing, the Defence re-filed many of these documents, and submitted
additional statements for the Chamber’s consideration.11 On 25 November 2005, the Defence filed
8
Plea Agreement, para. 9.
9
Prosecution’s Sentencing Brief, 10 October 2005.
10
Sentencing Brief on Behalf of Miroslav Bralo, filed confidentially on 10 October 2005.
11
Complete Annexes A and B to Sentencing Brief on Behalf of Miroslav Bralo, filed confidentially on
20 October 2005.
3
a public version of its Sentencing Brief and annexes (“Defence Brief”), and on 29 November it filed
two further statements.12
9. The Sentencing Hearing on 20 October 2005 lasted approximately four hours. The
Prosecution and the Defence made additional oral submissions on the factors that they seek to have
taken into consideration by the Trial Chamber in its determination of sentence. In addition, Bralo
made a short oral statement, apologising to the victims of his crimes and their families, and to “all
of those who experienced the horrors of war through me or my co-fighters.”13 At the end of the
hearing, the Trial Chamber reserved judgement on sentence.
II. FACTUAL BASIS OF GUILTY PLEA
10. Miroslav Bralo, also known as “Cicko,” was born in Kratine, in the municipality of Vitez,
now in Bosnia and Herzegovina, on 13 October 1967. In the evening of 15 April 1993, he was
released from Kaonik prison, on the condition that he agree to participate in an attack on the village
of Ahmići to be carried out the following day by forces of the Croatian Defence Council (“HVO”).
Upon his release, he was taken to a building known as the “bungalow” that was being used as the
headquarters of the “Jokers,” which was the anti-terrorist platoon of the 4th Military Police Battalion
of the HVO. He thereupon became a member of the “Jokers” and was given weapons and a
uniform.
11. Early the following morning while it was still dark, Bralo and other members of the
“Jokers” walked to Nadioci, where they entered the home of Osman Salkić, a Bosnian Muslim.
Two other members of the “Jokers” then killed Osman Salkić and his wife, Rediba Salkić, and
Bralo killed their daughter, Mirnesa Salkić, using a knife.
12. Later that morning, Bralo and others participated in a surprise attack on the village of
Ahmići, with instructions to ethnically cleanse the village, to kill the Muslim men of military age, to
burn all Muslim residences, and to expel all the Muslim residents from the village. In the course of
the attack, Bralo set fire to numerous homes belonging to the Muslim inhabitants of Ahmići, using
incendiary materials including incendiary bullets, and aided and abetted others in setting fire to
further Muslim residences. In addition, he captured, interrogated, and shot and killed an adult male
12
Sentencing Brief on behalf of Miroslav Bralo, 25 November 2005, and Supplementary Sentencing Material,
29 November 2005.
4
of unknown identity. He and another member of the “Jokers” also planted explosives in and around
the lower mosque in Ahmići, which they then detonated, destroying the mosque.
13. In a separate incident occurring between 16 April and 1 May 1993, Bralo and an HVO
soldier took custody of fourteen Bosnian Muslim men, women and children, all members of the
Salkić and Mehmet Čeremić families who had fled their homes following the attacks on Ahmići and
Nadioci. While transporting these fourteen persons towards Kaonik, the soldier accompanying
Bralo informed him of his intention to kill some of them. Bralo then assisted this soldier by taking
the group to a clearing in a forest, and standing guard while the soldier shot and killed all fourteen
men, women and children. Of these victims, two were approximately seven years old, one was
eight, one was ten, one was eleven, one was thirteen, one was fourteen, and two were approximately
sixteen years old.
14. On an occasion between 21 April and 10 May 1993, HVO soldiers arrested three unarmed
Muslim men in the area of the village of Kratine. Subsequently, Bralo, who believed these men to
be soldiers seeking either to gain intelligence about the HVO military lines, or to join up with other
military units, took these detained men to a barn and, along with others, interrogated and beat them.
Several hours later, Bralo took the detainees to a wooded area and killed them.
15. On yet another occasion, on or about 15 May 1993, members of the “Jokers” took a Bosnian
Muslim woman (“Witness A”) to the “bungalow,” where she was interrogated. While she was held
in the “bungalow,” she was repeatedly raped and sexually assaulted by Bralo. At one point while
she was being interrogated, Bralo beat a Bosnian Croat man in her presence and threatened to kill
her. He raped her in front of other soldiers and ejaculated repeatedly over her body. He also bit her
about the body, including her nipples.
16. Witness A was then taken from the “bungalow” to another house in the Nadioci area, where
she was detained by the “Jokers,” including Bralo, until some time in July 1993. During that period
she was again repeatedly raped by members of the “Jokers,” with the knowledge of Bralo. Bralo
failed to release her, even though he was in a position to effect her release.
17. Between 21 April and 10 May 1993, Bralo was assigned to the digging of trenches in and
around the village of Kratine. In that period, Bosnian Muslim prisoners were directed to work on
13
Bralo Sentencing Transcript, T. 88 (20 October 2005).
5
the trench-digging operations, to the orders of Bralo and others, and did so under adverse weather
conditions with limited food and rest. Bralo and other members of the “Jokers” prevented these
prisoners from escaping and Bralo forced them to practice a Catholic religious ritual. In addition,
the Bosnian Muslim detainees were used as “human shields” to protect the HVO forces from
sniper-fire from the Army of Bosnia and Herzegovina. Bralo was aware that these detainees under
his control were at risk of injury or death as a result.
III. APPLICABLE LAW
A. The Statute and Rules
18. The provisions of the Statute relevant to sentencing are as follows:
Article 24
Penalties
1. The penalties imposed by the Trial Chamber shall be limited to imprisonment. In

determining the terms of imprisonment, the Trial Chambers shall have recourse to the
general practice regarding prison sentences in the courts of the former Yugoslavia.
2. In imposing the sentences, the Trial Chambers should take into account such factors as
the gravity of the offence and the individual circumstances of the convicted person.
3. In addition to imprisonment, the Trial Chambers may order the return of any property
and proceeds acquired by criminal conduct, including by means of duress, to their
rightful owners.
Article 27
Enforcement of sentences
Imprisonment shall be served in a State designated by the International Tribunal from a

list of States which have indicated to the Security Council their willingness to accept
convicted persons. Such imprisonment shall be in accordance with the applicable law of
the State concerned, subject to the supervision of the International Tribunal.
19. The Rules also contain provisions on sentencing, of which the following are of immediate
relevance in the present case:
Rule 100
Sentencing Procedure on a Guilty Plea
(A) If the Trial Chamber convicts the accused on a guilty plea, the Prosecutor and the
defence may submit any relevant information that may assist the Trial Chamber in
determining an appropriate sentence.
6
(B) The sentence shall be pronounced in a judgement in public and in the presence of
the convicted person, subject to Rule 102 (B).
Rule 101
Penalties
(A) A convicted person may be sentenced to imprisonment for a term up to and

including the remainder of the convicted person’s life.
(B) In determining the sentence, the Trial Chamber shall take into account the factors
mentioned in Article 24, paragraph 2, of the Statute, as well as such factors as:
(i) any aggravating circumstances;
(ii) any mitigating circumstances including the substantial cooperation with the
Prosecutor by the convicted person before or after conviction;
(iii) the general practice regarding prison sentences in the courts of the former
Yugoslavia;
(iv) the extent to which any penalty imposed by a court of any State on the
convicted person for the same act has already been served, as referred to in
Article 10, paragraph 3, of the Statute.
(C) Credit shall be given to the convicted person for the period, if any, during which
the convicted person was detained in custody pending surrender to the Tribunal or
pending trial or appeal.
20. The Trial Chamber must therefore consider a number of factors in its assessment of the
appropriate sentence to be imposed upon Bralo, and these are discussed further below. Ultimately,
however, the sentence imposed is a matter for the discretion of the Trial Chamber after examining
the particular facts of the case.14
B. General Considerations
21. As a preliminary matter, the Trial Chamber draws attention to the purposes of punishment in
the context of the Tribunal. The Tribunal was established to prosecute individuals who committed
serious violations of international humanitarian law in the course of conflicts in the states of the
former Yugoslavia, as a measure to contribute to the restoration and maintenance of peace in that
region.15 That aim must be borne in mind by a Trial Chamber in the sentencing process.
22. In previous cases before the Tribunal, Trial Chambers and the Appeals Chamber have set
out three broad purposes of punishment in this particular context. The first of these has been
14
See Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Judgement, 19 April 2004 (“Krstić Appeals Judgement”),
para. 241.
15
Security Council Resolution 827 (1993), 25 May 1993.
7
termed “retribution,” with the qualification that it is “not to be understood as fulfilling a desire for
revenge but as duly expressing the outrage of the international community at these [international]
crimes.”16 Thus, retribution as a purpose of punishment is here used to denote the concept that
whatever sentence is imposed on a convicted person amounts to an expression of condemnation by
the international community at the horrific nature of the crimes committed, and must therefore be
proportionate to his specific conduct. The second purpose of punishment is that of deterrence,
either individual or general. The Appeals Chamber has held that, while a Trial Chamber may
properly consider deterrence as a purpose of punishment that might influence its determination of
sentence, it should not give “undue prominence” to deterrence in its overall assessment of an
appropriate sentence.17 Rehabilitation of the individual offender is also considered as a legitimate
purpose of punishment, albeit one that should not be given “undue weight.”18
23. In light of these general considerations, the Trial Chamber now turns to the factors to be
considered in determining sentence, being: the gravity of the offences and the individual
circumstances of Bralo, including any aggravating or mitigating circumstances; and the general
practice regarding prison sentences in the courts of the former Yugoslavia.
IV. SENTENCING FACTORS
A. The gravity of the crimes and aggravating circumstances
24. The most important factor to be taken into account by the Trial Chamber in its determination
of sentence is the gravity of Bralo’s criminal conduct.19 The Prosecution has placed considerable
emphasis on the gravity of the crimes committed. The Defence “acknowledge[s] the gravity of the
offending,” including “not only the suffering of those directly affected in 1993, but also the
continued suffering of those directly or indirectly affected in every month of every year from that
date to this.”20
16
Prosecutor v. Aleksovski, Case No. IT-95-14/1-A, Judgement, 24 March 2000 (“Aleksovski Appeals Judgement”),
para. 185.
17
Prosecutor v. Tadić, Case No. IT-94-1-A & IT-94-1-Abis, Judgement in Sentencing Appeals, 26 January 2000,
para. 48.
18
Prosecutor v. Delalić, Mucić, Delić and Landžo, Case No. IT-96-21-A, Judgement, 20 February 2001 (“Čelebići
Appeals Judgement”), para. 806.
19
See, e.g., Čelebići Appeals Judgement, para. 731; Aleksovski Appeals Judgement, para. 182; Prosecutor v. Delalić,
Mucić, Delić and Landžo, Case No. IT-96-21-T, Judgement, 16 November 1998 (“Čelebići Trial Judgement”),
para. 1225.
20
Bralo Sentencing, Transcript, T. 115 (20 October 2005).
8
25. While noting that the matter is not one in dispute between the parties, the Trial Chamber
must nonetheless analyse the various indicia put forward by the Prosecution in order to assess the
gravity of the crimes committed by Bralo and reach the necessary conclusions with regard to the
appropriate sentence for those crimes. In this regard, the Trial Chamber relies only upon facts
contained in the Factual Basis agreed between the parties, in addition to the statements concerning
the impact of the crimes on the various victims appended to the Prosecution Brief.
26. In addition, the Prosecution asserts that there are three main aggravating factors that the
Trial Chamber should consider: the large number of victims; the youth of the victims; and the
exacerbated humiliation and degradation of Witness A by Bralo.21 The Defence has not made any
submissions concerning these matters, but stated at the Sentencing Hearing its agreement that the
three categories put forward by the Prosecution should be considered as aggravating factors.22
27. The aggravating circumstances identified by the Prosecution are all factors which may add
to the gravity of the offences. Seeking to analyse the gravity of the crimes separately from any
aggravating circumstances would be an artificial exercise. Therefore, the Trial Chamber here
examines the crimes of which Bralo has been convicted to assess their inherent gravity, along with
any circumstances that serve to make the gravity of Bralo’s criminal conduct worse. By taking this
approach, the Trial Chamber also avoids any possible double-counting of particular factors, which
would be impermissible.23 The determination of which factors may count in aggravation is a matter
for the discretion of the Trial Chamber,24 although it is only those factors that have been proved
beyond a reasonable doubt that it may consider.25
1. Nature of the crimes
28. The Trial Chamber notes first that the crimes of which Bralo has been convicted are of the
utmost gravity. Count 1 of the Indictment is a charge of persecution as a crime against humanity,
21
Prosecution Brief, paras. 68–78.
22
At the Sentencing Hearing, Counsel for Bralo stated: “Might I go on by acknowledging the aggravating factors that
have been relied on by the Prosecution in this case. I don’t take issue with a single one of the factors that have been
brought forward.” Bralo Sentencing, Transcript, T. 116 (20 October 2005).
23
The Appeals Chamber has stated that “factors which a Trial Chamber takes into account as aspects of the gravity of
the crime cannot additionally be taken into account as separate aggravating circumstances, and vice versa.”
Prosecutor v. Miroslav Deronjić, Case No. IT-02-61-A, Judgement on Sentencing Appeal, 20 July 2005 (“Deronjić
Appeals Judgement”), para. 106.
24
See Čelebići Appeals Judgement, para. 780.
9
an extremely serious offence involving a deliberate intention to discriminate against a particular
group of people in the context of a widespread or systematic attack on a civilian population.
Similarly, the remaining counts of the Indictment are a catalogue of serious, violent offences,
namely murder, rape, torture, unlawful confinement, and inhuman treatment, constituting grave
breaches of the Geneva Conventions and/or violations of the laws or customs of war.26 Bralo has
explicitly acknowledged his personal culpability for these crimes, in addition to recognising their
gravity.27
29. Beyond the inherently shocking nature of these crimes, the Trial Chamber also takes
account of the specific manner in which they were committed by Bralo. In the course of his
persecution of the Bosnian Muslim residents of Nadioci and Ahmići, who were the targets of attack
on 16 April 1993, Bralo killed a young woman—Mirnesa Salkić—with a knife, while his associates
murdered her parents. In addition, he shot and killed an unidentified adult male after capturing and
interrogating him. Moreover, Bralo set fire to many houses belonging to the Muslim residents of
Ahmići using incendiary materials, aided and abetted others in doing so, and participated in the
destruction of the lower mosque in Ahmići by setting and detonating approximately four kilos of
explosives. At some time after the attack on Ahmići, Bralo aided another member of the HVO in
the killing of fourteen Bosnian Muslim civilians.
30. There can therefore be little doubt that Bralo was a willing participant in one of the most
brutal attacks upon a community in the entire conflict in Bosnia and Herzegovina. As a
consequence of this attack, the Muslim community of Ahmići was decimated and those who
survived the killing were driven from their homes, which were razed or burned. According to the
report of the Special Rapporteur on the situation of human rights in the territory of the former
Yugoslavia, all of the approximately 180 Muslim homes in Ahmići were destroyed and all of the
25
Ibid, para. 763.
26
The Trial Chamber notes that Bralo has been convicted under Counts 3 and 4 of the Indictment for torture as a grave
breach of the Geneva Conventions, and as a violation of the laws or customs of war, for the same underlying acts. In
light of the Tribunal’s jurisprudence on cumulative convictions, the Trial Chamber bases its sentence in the present
case on the gravity of the crime of torture as a grave breach of the Geneva Conventions and does not additionally
consider the gravity of torture as a violation of the laws or customs of war. See, e.g. Prosecutor v. Kordić and
Čerkez, Case No. IT-95-14/2-A, Judgement, 17 December 2004 (“Kordić and Čerkez Appeals Judgement”),
paras. 1032–1035.
27
At the Sentencing Hearing, the Defence stated “[t]he second thing that I have to acknowledge on Mr. Bralo’s behalf
is his personal responsibility for each of the actions which have led to harm. Whatever the context, those were acts
which he acknowledges were wrong, and that he always knew to be wrong.” Bralo Sentencing, Transcript, T. 115
(20 October 2005).
10
surviving Muslim residents fled or were forced to leave.28 A clearer example of “ethnic cleansing”
would be difficult to find. The scale of the attack and the number of victims who were
persecuted by Bralo in its course serve to further aggravate the seriousness of his criminal conduct,
which is a factor taken into account by the Trial Chamber in its determination of sentence.29
31. The Trial Chamber also finds that in some circumstances a crime can be aggravated by the
youth of the victim involved. Such is the case, for example, where an accused is convicted of rape
or sexual assault, or where he has committed murder. The fact that many of those who were killed,
displaced, and traumatised by the attack on Ahmići were children, and that, of the fourteen
members of the Salkić and Čeremić families who were killed by an HVO soldier with the assistance
of Bralo, nine were children, are important considerations. The Trial Chamber therefore finds that
this aspect of the commission of the crime of persecution by Bralo in the present case is a factor that
aggravates the gravity of the crime.
32. Count 2 of the Indictment relates to the murder of three captured Muslim men, one of whom
was Fuad Kermo, by Bralo. The beating and cold-blooded killing of persons detained during an
armed conflict is a brutal crime. Belief that they were enemy agents is irrelevant. It is the very
essence of international humanitarian law that individuals who are captured and detained—civilian
or combatant—must be treated in accordance with the law, and Bralo violated this fundamental rule
three times over. Once again, the fact that there were multiple murder victims is an element which
serves to aggravate the seriousness of Bralo’s criminal conduct.
28
Second Periodic Report on the situation of human rights in the territory of the former Yugoslavia submitted by Mr.
Tadeusz Mazowiecki, Special Rapporteur of the Commission on Human Rights, pursuant to paragraph 32 of the
Commission resolution 1993/7 of 23 February 1993, UN Doc. No. E/CN.4/1994/4, 19 May 1993 (appended to the
Prosecution Brief as Attachment B), at para. 20.
29
In the Nikolić case, Trial Chamber II accepted that the high number of victims and the multitude of criminal acts
counted as factors aggravating the crimes committed. Prosecutor v. Dragan Nikolić, Case No. IT-94-2-S, Sentencing
Judgement, 18 December 2003 (“Dragan Nikolić Judgement”), para. 213. In the Deronjić case, the Appeals
Chamber discussed whether the offence of persecution as a crime against humanity requires that there be a large
number of victims of a particular accused person. Deronjić Appeals Judgement, paras. 108–111. If this were the
case, then the number of victims could not additionally be considered as an aggravating factor, as it would already be
an aspect of the gravity of the offence. The Appeals Chamber emphasised that “in order to constitute a crime against
humanity, the acts of an accused must be part of a widespread or systematic attack directed against any civilian
population; however, this requirement only applies to the attack and not to the individual acts of the accused.” Ibid,
para. 109, footnotes omitted. Therefore, “a single or limited number of acts on [the accused’s] part would qualify as a
crime against humanity.” Ibid. The Appeals Chamber found that the appellant had not established an error on the
part of the Trial Chamber in its determination that the large number of victims in that case constituted an aggravating
factor, as he had not demonstrated that the Trial Chamber took this into account twice as part of the gravity of the
offence and as an aggravating factor.
11
33. The Factual Basis for Counts 3 to 6 of the Indictment describes the horrific ordeal of a
Bosnian Muslim woman—Witness A—at the hands of Bralo and other members of the “Jokers,”
over a lengthy period of time. Her brutal rape and torture, and her imprisonment for approximately
two months to be further violated at the whim of her captors, are crimes of a most depraved nature.
The Trial Chamber emphasises once again that international humanitarian law, along with basic
principles of humanity, require that individuals who are detained during an armed conflict must be
treated humanely, and that the rape and torture of a woman in this context is a most heinous crime
requiring unequivocal condemnation.
34. With regard to the exacerbated humiliation and degradation of Witness A by Bralo, the Trial
Chamber finds that this should be considered as a factor which further aggravates the gravity of an
already extremely serious offence. Bralo threatened Witness A’s life while she was being
interrogated, he raped her in front of an unknown number of other people over an extended period
of time, and he bit her and ejaculated repeatedly over her body during his prolonged assault of her.
These actions demonstrate a desire to debase and terrify a vulnerable woman, who was at the
complete mercy of her captors. It is therefore incumbent upon the Trial Chamber to take into
account these particular circumstances as having aggravated the gravity of his rape of Witness A.
35. The charges contained in counts seven and eight of the Indictment pertain to the role of
Bralo in the detention of Bosnian Muslim civilians, who were used as labourers in the digging of
trenches in and around the village of Kratine. Bralo was among members of the HVO who guarded
these detainees and directed their work, in adverse weather conditions and with limited food or rest,
under threat of physical harm. The enthusiasm of Bralo for this task, and his desire to humiliate
these Muslim detainees, is evidenced by his conduct in forcing them to perform a Catholic religious
ritual before work began. Moreover, the detainees were also at risk of being struck by sniper-fire
from the Army of Bosnia and Herzegovina, as their positioning was such that they were used, by
Bralo and others, as “human shields” to protect the HVO forces from such sniper attack. Bralo was
aware of the prospect that the detainees under his control might be injured or killed as a result of
their positioning in this way, and yet did nothing to alleviate the situation. He must therefore be
considered as a knowing participant in yet another crime involving the serious mistreatment of
detained civilians, a reprehensible offence. The fact that there were numerous victims of the crimes
charged in counts seven and eight is also taken into account by the Trial Chamber as a factor that
aggravates the gravity of these crimes.
12
2. Impact on victims
36. In addition to examining the manner in which Bralo committed the crimes of which he has
been convicted, the Trial Chamber takes into consideration the submissions of the Prosecution on
the impact of these crimes on his victims. It notes that the Defence has explicitly acknowledged the
suffering of Bralo’s victims, both at the time of commission of his crimes, and in the months and
years afterwards.30 The Defence has further agreed with the Prosecution that the victim impact
statements provided to the Trial Chamber are both powerful and affecting.31 These statements are
discussed here in turn, relating to Counts 1, 2 and 3–6 of the Indictment.
37. The Prosecution has submitted several statements from people who survived the attack on
Ahmići and whose relatives were killed in the course of that attack. The Trial Chamber appreciates
the willingness of these victims to describe their ordeal and the consequences of the attack upon
their lives since. Elver Ahmić, who turned fourteen years old in 1993, watched as his mother and
eight-year old brother were killed on 16 April of that year. He was also wounded in the attack, and
still has medical problems as a result of bullets and shrapnel that remain in his body, along with the
emotional pain caused by the death of his mother and brother.32 Adnan Zec, who was thirteen years
old at the time of the attack, also witnessed his mother, father and eleven-year old sister being killed
and was himself injured. His statement expresses the mental and physical trauma that he has
experienced since the time of the attack and the heavy toll that the loss of his family has exacted
upon him.33 In his statement, Abdullah Ahmić describes how HVO soldiers executed his father on
the day of the attack, and also attempted to kill him by shooting him in the head. His physical and
psychological health has suffered enormously as a consequence of the attack.34 Fatima Ahmić and
Ćazim Ahmić also lost their spouses in the attack and have described the serious hardships that they
now face in their daily lives.35 A statement was also given by a person whose family members were
part of the group of fourteen men, women and children killed by Bralo and another soldier as they
escorted them towards Kaonik following the attack on Ahmići. The loss of these family members
has caused this person immense distress, manifesting itself in serious physical and psychological
problems.
30
31
Ibid.
32
Prosecution Brief, Attachment G.
33
Prosecution Brief, Attachment H.
34
Prosecution Brief, Attachment I.
35
Prosecution Brief, Attachments K and L.
13
38. The Trial Chamber further notes the statement made by the widow of one of the men
murdered by Bralo, as well as that of a care-worker who works with her. She has experienced, and
continues to experience, constant fear and emotional distress as a result of the loss of her husband
and her expulsion from her home.
39. Finally, the Trial Chamber has read a summary of an interview with Witness A, the woman
who was so brutally raped and mistreated by Bralo and other members of the “Jokers.” The trauma
experienced by Witness A at the time of her detention and rape, and on an ongoing basis, is
undeniable, and the Trial Chamber appreciates her agreement to once again describe her ordeal and
its consequences.
40. These statements paint a picture of shattered lives and livelihoods, and of tremendous
ongoing pain and trauma. The Trial Chamber is therefore mindful of the suffering of these victims,
and of all of the other Muslim residents of Ahmići and Nadioci who were persecuted or otherwise
abused by Bralo in the course of the attacks on their villages. It observes that the consequences of
the persecution, murders, rape, and other crimes committed by Bralo are profound and long-lasting
and takes this into consideration in its determination of sentence.
41. In conclusion, the Trial Chamber finds that Bralo committed a range of appalling crimes, the
gravity of which is aggravated by the particular manner in which he committed them, including the
number of victims (Counts 1, 2 and 7–8), the youth of some of his victims (Count 1), and the degree
of humiliation and degradation of Witness A (Counts 3–6).
B. Mitigating Circumstances
42. Mitigating circumstances may result in an adjustment of the sentence that would otherwise
be imposed on a convicted person. The acceptance of certain circumstances as mitigatory in nature
does not detract from the gravity of the crime committed, nor diminish the responsibility of the
convicted person or lessen the degree of condemnation of his actions. Indeed, such circumstances
may be unconnected with the commission of the crime itself, and can arise many months or years
after the event. While aggravating circumstances must be proved beyond a reasonable doubt,
mitigating circumstances need only be proved on a balance of probabilities.36
36
14
1. Arguments of the Parties
43. The Defence submits that there are a number of mitigating circumstances that the Trial
Chamber should consider in the present case. In its Sentencing Brief, it lists these as:
• the prior good character of Bralo;
• the immediate background to the commission of the offences;
• the use of Bralo by his superiors;
• the time period covered by the Indictment;
• the sheltering of others by Bralo;
• his steps towards rehabilitation;
• his voluntary surrender;
• his guilty pleas;
• his remorse;
• his co-operation of value to the Tribunal; and
• his co-operation of value to the people of Ahmići.37
The Defence also requests that the Trial Chamber take into account the circumstances of the
individual offences,38 and the personal circumstances of Bralo,39 although these are not explicitly
listed as mitigating factors. Given that these additional circumstances are pleaded, in essence, as
mitigatory in nature, the Trial Chamber will consider them along with the other mitigating
circumstances asserted. Moreover, among the additional material submitted by the Defence to the
Trial Chamber on 29 November 2005 was a memorandum from Tim McFadden, the Chief of the
United Nations Detention Unit in the Hague, relating to Bralo’s good conduct while in detention.
The Trial Chamber regards the inclusion of this statement as the submission by the Defence of
evidence of a further proposed mitigating factor, and discusses it accordingly below.
44. In its Sentencing Brief, the Prosecution argues that mitigating circumstances should not be
given too much weight in a case of this nature.40 It further states that the low rank of the perpetrator
of a crime is not a mitigating circumstance.41 It does, however, agree that Bralo should be given
credit for his voluntary surrender to the Tribunal, and for his guilty plea. With regard to the family
circumstances of Bralo, the Prosecution states that these should not be given any significant weight
in a case of this gravity.42
37
Defence Brief, paras. 64–85.
38
39
Ibid, paras. 2–24.
40
Prosecution Brief, para. 79.
41
Ibid, para. 80.
42
Ibid, para. 87.
15
45. At the Sentencing Hearing, the Prosecution reiterated that Bralo was entitled to plead his
voluntary surrender and his guilty plea as mitigating circumstances.43 The Prosecution further
acknowledged that Bralo was genuinely remorseful, and that this should also be taken into account
as a mitigating circumstance.44 However, with regard to substantial co-operation by Bralo with the
Office of the Prosecutor, the Prosecution disputed that such co-operation had occurred.
2. Discussion
46. Much of the information supplied by the Defence for consideration by the Trial Chamber in
its determination of sentence falls into overlapping categories, which may or may not be considered
as mitigating circumstances. The Trial Chamber here examines this information and makes
findings on its relevance with regard to sentencing.
(a) Personal background of Bralo and prior character
47. In its Sentencing Brief, the Defence describes Bralo’s childhood as one that was difficult but
not extraordinary. It further outlines his conscription into the HVO in 1991, and his training and
combat activities, which had an emphasis on mining and de-mining. The Defence asserts that prior
to February 1993 Bralo had no criminal record. He was then detained for the killing of a neighbour,
Esad Salkić, before he committed the crimes for which he has been convicted by this Tribunal. At
the time of his commission of these crimes, he was 25 years old. He has been married twice, and
his second wife and daughter were tragically killed in a fire in 1998. He also has a son. The
Defence has submitted statements from people, including close family members, who knew him
before and after the commission of his crimes. They variously describe him as being honest,
hardworking and decent prior to the armed conflict, but as a broken man after the period in which
he committed the crimes of which he has been convicted.45
48. While prior good character and the family circumstances of an accused may, in some cases,
be taken into account as mitigating factors, the Trial Chamber finds that in the present case they
have only limited bearing on the sentence to be imposed.46 Where an accused has been convicted
of extremely serious crimes, committed in a particularly brutal manner, the fact that he may have no
43
44
45
Statements of Ruza Bralo, Goran Gogic, Branko Perkovic, Bozica Jukic, appended to the Defence Brief.
16
history of offending does not necessarily militate in favour of a more lenient sentence. Moreover,
the family circumstances of this Accused are of minor relevance to his sentence, and he was not of
such a young age at the time of commission of his crimes that this should be taken into
consideration by the Trial Chamber.47 Therefore, the Trial Chamber notes the mitigating family
and personal circumstances of Bralo, but ascribes little weight to them in its determination of
sentence.
(b) Circumstances of Bralo prior to and surrounding his commission of the offences, and use of
Bralo by his superiors
49. The Defence submits that the political situation in Vitez was very unstable in 1991, and that
in September of that year Bralo was conscripted into the HVO. It states that for more than a year,
he underwent military training and was involved in active combat with Serb forces. It asserts that,
in February 1993, Bralo’s home was targeted in a grenade attack, which broke the windows and
brought down some of the roof. The Defence states that Bralo chased down the individual he
believed responsible for the attack, who was one of his neighbours, and shot and killed him. He
then used explosives to destroy this man’s house. Subsequently, Bralo was arrested by the local
police and taken to prison in Kaonik.
50. According to the Defence, after spending several weeks in prison, Bralo was released on
15 April 1993, on the condition that he participate in the attack on Ahmići that was planned for the
following day, as a member of the “Jokers.” With regard to the commission of the crimes for which
he has been convicted, the Defence asserts that he was under orders to kill civilians and destroy
homes in the course of the attack on Ahmići. While no further evidence of the existence of such
orders has been tendered, the Factual Basis for the Plea Agreement states that those who
participated in the attack on Ahmići were given express instructions to ethnically cleanse it, to kill
all the Muslim males of military age, and others bearing arms, to burn all Muslim residences, and to
forcibly expel all the Muslim residents from the village. The Defence also argues that Bralo was
used as a “weapon of war” by his superiors, in the period between April and May 1993. The
46
See, e.g., Kordić Appeals Judgement, para. 1090; Prosecutor v. Banović, Case No. IT-02-65/1-S, Sentencing
Judgement, 28 October 2003 (“Banović Sentencing Judgement”), para. 75; Furundžija Trial Judgement, para. 284.
47
In the Kunarac case, the Appeals Chamber stated “Article 24(2) of the Statute requires the Trial Chambers to take
into account “the individual circumstances of the convicted person” in the course of determining the sentence. Such
circumstances can be either mitigating or aggravating. Family concerns should in principle be a mitigating factor.”
Prosecutor v. Kunarac, Kovač, and Vuković, Case No. IT-96-23 and IT-96-23/1-A, Judgement, 12 June 2002,
para. 362.
17
Defence finally submits that Bralo continued to fight for the HVO from his release from prison until
late in 1994, when he refused to participate in the conflict any more.
51. The Trial Chamber is aware of the deteriorating political and military situation in the
municipality of Vitez, and indeed in central Bosnia, in the 1992–1993 period. It further notes that
tension and animosity between the Bosnian Croat and Muslim communities in the region escalated
in mid-1992,48 resulting in armed conflict between the HVO and the army of Bosnia and
Herzegovina.49 The Defence requests that the Trial Chamber be mindful of the “enormous
pressures placed on many people of good character and of bad character” in this particular
context.50 While it is notorious that such pressures existed, the Trial Chamber nonetheless finds
that they cannot be considered in any way relevant to the sentence to be imposed upon Bralo for the
crimes of which he has been convicted. Large sections of the population of Vitez municipality, and
indeed of many parts of Bosnia and Herzegovina, were subjected to the same or similar pressures,
and yet did not respond in the same manner as Bralo.
52. Moreover, the Trial Chamber finds that the attack on Bralo’s home in February 1993, and
his subsequent killing of the person he believed responsible for that attack, cannot serve as a
mitigating circumstance in the present case. Indeed, it is surprising that the Defence should bring
evidence of a prior violent crime apparently committed by Bralo, but for which he has not been
convicted, as a mitigating factor. If this evidence has been brought in order to demonstrate some
kind of justifiable fear felt by Bralo in the context of the breakdown of community relations
between the Croat and Muslim communities in his home area, then the Trial Chamber reiterates that
the tensions that existed in the region at the relevant time can in no way act in mitigation of the
sentence to be imposed upon Bralo for his commission of serious, violent crimes.
53. Separately, the Trial Chamber notes the Defence submission that, as a consequence of his
actions in February 1993, Bralo was held in custody in Kaonik prison until 15 April of that year.
The Factual Basis for the Plea Agreement between the Prosecution and Bralo also indicates that he
was released from this prison on the condition that he participate in the attack on Ahmići. The Trial
Chamber therefore accepts that Bralo was under some pressure to become a member of the “Jokers”
and to be actively involved in combat operations carried out by the HVO. There is no evidence to
48
See Prosecutor v. Zoran Kupreškić, Mirjan Kupreškić, Vlatko Kupreškić, Drago Josipović, Dragan Papić, and
Vladimir Šantić, Case No. IT-95-16-T, Judgement, 14 January 2000, para. 125.
49
See ibid., para. 162. See also Prosecutor v. Kordić and Čerkez, Case No. IT95-14/2-T, Judgement, 26 February
2001, paras. 531–533.
18
suggest that he attempted to resist this pressure, but the question is nonetheless raised of whether he
was acting under duress when he committed his crimes and, or alternatively, whether his crimes
were committed as a result of superior orders. Duress and superior orders are separate, but related,
concepts and either may count in mitigation of sentence.51
54. Bralo has not, however, alleged any form of duress emanating from his superiors such that
he was compelled to commit the crimes of which he has been convicted. Nor has he specifically
pleaded superior orders as a factor in mitigation of sentence. He has taken full personal
responsibility for those crimes and has acknowledged that he knew them to be wrong. It is the duty
of any person involved in an armed conflict to comply fully with the relevant norms of international
humanitarian law and, while Bralo may have been pressured to participate in combat activities, he
remained legally and morally obliged to conduct himself in accordance with those norms. Once
again, the Trial Chamber recalls the particularly brutal treatment of Witness A by Bralo, his
participation in the killing of numerous civilians, including children, and his humiliation of civilian
detainees by forcing them to perform a religious ritual. All of his actions display his complete
contempt at the time for the laws governing armed conflict, along with a shocking disregard for the
value of human life and dignity.
55. In addition, the Trial Chamber notes that Bralo did indeed have a choice with regard to his
continued participation in the combat activities of the HVO following his release from prison. The
Defence has stated in its Sentencing Brief that he chose, in late 1994, not to fight any more, and
refused to leave his bed in Nadioci.52 It has not been argued that he suffered any negative
consequences in the sense of disciplinary or other action following his refusal to fight at that point.
Bralo therefore could, and should, have refused to participate in combat activities at an earlier stage
if he was given orders that he knew to be unlawful, or was required to engage in activities that he
knew to be illegal. While the Trial Chamber has not received evidence of the orders that he was
given to kill civilians and destroy civilian homes in the context of the attack on Ahmići, such orders
are referred to in the Factual Basis, and their existence is therefore not questioned. However, these
50
51
Article 7(4) of the Statute of the International Tribunal provides: “The fact that an accused person acted pursuant to
an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in
mitigation of punishment if the International Tribunal determines that justice so requires.” In the Erdemović case, the
Appeals Chamber held that “duress does not afford a complete defence to a soldier charged with a crime against
humanity and/or a war crime involving the killing of innocent human beings.” In its subsequent decision in the case,
the Trial Chamber found that duress could be pleaded in mitigation. See Prosecutor v. Erdemović, Case No.
IT-96-22-A, Judgement, 7 October 1997, para. 19; and Prosecutor v. Erdemović, Case No. IT-96-22-Tbis, Sentencing
Judgement, 5 March 1998, para.17.
52
Defence Brief, para. 10.
19
orders would have been so manifestly unlawful that Bralo should have refused to implement them.
No evidence has been submitted, and no argument made, that he made any attempt to resist the
undertaking of the crimes he committed.
56. The Trial Chamber therefore finds that Bralo’s circumstances in the period leading up to and
surrounding the commission of his crimes do not amount to mitigating circumstances. The
Chamber also finds that any orders given to Bralo to kill civilians and destroy homes would have
been manifestly unlawful, such that they have no mitigatory value in the determination of sentence
in the present case. While it may be the case that Bralo was used by his superiors as a “weapon of
war,” once again the Trial Chamber finds that this has no bearing upon the appropriate punishment
that he should receive for his crimes.
(c) Time period covered by the Indictment
57. The Defence argues that the time period of the Indictment is limited to approximately three
months, and that this limited time period should be taken into account as a mitigating
circumstance.53 The Defence cites the Kordić and Čerkez case in support of its position, where the
Appeals Chamber noted, with regard to the accused Čerkez, “[as] [o]pposed to the timeframe in the
Indictment, his criminal responsibility is limited to a relatively short period of time (approximately
14 days).”54
58. In the present case, however, there is only one person accused and convicted of the crimes
charged in the Indictment and there cannot therefore be any comparison between the timeframe of
the offences committed by this person and any co-accused. In addition, the crimes of which Bralo
has been convicted were perpetrated over a period from 15 April 1993, to some time in July 1993,
that is, over eleven to fifteen weeks. The Trial Chamber does not consider this to be a short period
of time and notes that Bralo has been convicted on the basis of a series of violent and depraved acts,
rather than for a single act or set of acts committed on one occasion. The Trial Chamber does not,
therefore, attribute any weight to the time period of the Indictment as a mitigating circumstance.
53
54
Kordić and Čerkez Appeals Judgement, para. 1090.
20
(d) Sheltering of others
59. The Defence submits that there is evidence that Bralo sheltered and assisted some people in
the same time period as his crimes were committed. It provides statements from three people who
say they were helped and protected by Bralo in this period.55 The Trial Chamber notes that, in some
cases, substantial assistance to, or protection of vulnerable individuals by an accused person may
constitute mitigating circumstances. For example, where an accused person participated in the
detention of a number of people, and where he assisted some of those detainees, or alleviated their
suffering in some way, this may be considered as a factor in mitigation of sentence.56 In the present
case, of the people who have given statements to the effect that they were helped by Bralo, one
states that he and Bralo were old friends, and the others had a family connection to him. The Trial
Chamber finds that the fact that he chose to act in this manner with regard to these particular people
demonstrates that he was capable of moral action. It does not, however, have any bearing on the
sentence that he should receive in punishment for his particular crimes.
(e) Voluntary surrender, guilty plea, remorse, and steps towards rehabilitation
60. Bralo’s voluntary surrender and guilty plea before the Tribunal are inextricably linked to his
remorse and steps towards rehabilitation, and are therefore considered here together.
61. The Defence submits, and the Prosecution does not dispute, that Bralo surrendered
voluntarily to the Tribunal in 2004, when he learned of the Indictment against him. The Trial
Chamber agrees that the voluntary surrender of an accused person should be considered as a
mitigating circumstance, and thus will give credit to Bralo for this.
62. The Defence also submits that the fact that Bralo pleaded guilty to the charges against him,
and indeed voluntarily gave information that led to the addition of a new charge to the Indictment,
are important mitigating circumstances. The Prosecution agrees that Bralo’s guilty plea constitutes
a mitigating factor, as it spares witnesses from being required to come and give evidence; it was
55
Statements of Ferid Ahmic, Bozica Jukic and Natalija Krizenac, attached to the Defence Brief.
56
See, e.g., Prosecutor v. Sikirica, Došen and Kolundžija, Case No. IT-95-8-S, Sentencing Judgement, 13 November
2001, para. 195.
21
made long before trial and therefore results in the saving of limited resources; and it may contribute
to the process of reconciliation in the region of central Bosnia.57
63. The Trial Chamber notes that Bralo pleaded guilty to an Indictment that contains
significantly fewer charges than the indictment that was originally filed against him. However, the
Plea Agreement between the parties states unequivocally that the guilty pleas were not entered on
the basis of any promises or inducements on the part of the Prosecution. Furthermore, while some
counts were removed from the Indictment, it is noteworthy that a new charge of persecution as a
crime against humanity was added, based partly on information supplied by Bralo.
64. The entering of a guilty plea prior to trial, to charges of the seriousness of those contained in
the Indictment, is a significant step for an accused person to take. Substantial human and practical
benefits flow from a plea of guilty, particularly one tendered at an early stage in the proceedings.
Victims and witnesses who have already suffered enormous psychological and physical harm are
not required to travel to the Hague to recount their experiences in court, and potentially re-live their
trauma. In addition, scarce legal, judicial and financial resources that would otherwise be expended
in preparing for and conducting a lengthy and expensive trial may be redeployed in the interests of
securing the wider objectives of the Tribunal.
65. Furthermore, where the plea, and the circumstances in which it came to be made, involves a
profound acknowledgement of personal responsibility, it may demonstrate that an accused is
genuinely remorseful.
66. As additional evidence of his genuine remorse, the Defence submits that Bralo took steps to
atone for his crimes, prior to his surrender and transfer to the Hague. It states that, between late
1999 or early 2000 and his surrender in 2004, he worked in the community at Majcino Celo and
Citluk, in south-eastern Bosnia and Herzegovina, and has provided witness statements to this
effect.58 The Defence argues that there is evidence to suggest that, in the period after the armed
conflict, Bralo found it increasingly difficult to cope with his conscience, but that he made a
significant positive contribution to those with whom he lived.59
57
58
Defence Brief, para. 20, and statements of Witness J and Witness L, attached to the Defence Brief.
59
Ibid, para. 73.
22
67. The Defence also refers to Bralo’s statement, which is appended to its Sentencing Brief,
acknowledging his responsibility for his crimes and apologising to his victims.60 In addition, it has
submitted evidence that Bralo has attempted to assist in the location and exhumation of the bodies
of those who were killed by him and others during the attack on Ahmići, and in the identification of
areas that were mined by the HVO during the conflict.61 The Defence argues that these actions
demonstrate his remorse, his desire for personal rehabilitation, and his desire to assist in the
rehabilitation of the communities so badly damaged by the conflict in which he was involved.
68. At the Sentencing Hearing, the Prosecution stated that it was of the view that Bralo is
genuinely remorseful and has “embarked on a personal voyage of reconciliation and atonement.”62
69. The Trial Chamber accepts that, after the end of the armed conflict, Bralo was devastated by
the trauma of the conflict and the part that he played in it. He attempted to surrender himself to the
Tribunal in 1997, despite being unaware of the actual existence of an indictment against him.63 He
also engaged in community work in a different region of Bosnia and Herzegovina. His efforts to
assist in the location of the remains of his victims and others killed in the course of the conflict, and
to aid de-mining operations, are to be commended, and the Trial Chamber is mindful of the
statement given by Zaim Kablar, who has been involved in the location and exhumation of bodies
in central Bosnia, and who has described the importance of Bralo’s contribution to finding the
remains of several of his victims, and the positive effect that this has had on the families of those
victims and the local community.64 His acknowledgement of responsibility for his crimes and
expressions of regret directed to his victims are important indicators that he has undergone a
personal transformation. The Trial Chamber is confident that this transformative process will
continue as he serves his sentence and that his punishment will have a further rehabilitative effect.
70. The Trial Chamber therefore considers that Bralo’s plea, taken with his behaviour following
the appalling events of the Indictment, and particularly the efforts he has made to try to atone for his
crimes, demonstrate that he is genuinely remorseful.
60
Ibid, para. 78.
61
Ibid, paras. 79–80. A statement from Zaim Kablar, a member of the Federal Commission for Finding Missing
Persons in Bosnia and Herzegovina, is among the Supplementary Sentencing Materials filed by the Defence on 29
November 2005. This statement describes Bralo’s assistance in locating the remains of several people killed during
the conflict, including victims of some of the crimes of which he has been convicted.
62
63
64
Statement of Zaim Kablar, appended to the Supplementary Sentencing Materials filed on 29 November, Annex E2.
23
71. The Trial Chamber further recognises that Bralo’s guilty plea, combined with his genuine
remorse, is likely to have a positive effect on the rehabilitation of the victims of his crimes, and
their communities. As stated by Mehmed Ahmic, the current President of the Ahmići Municipality
Council, Bralo is the first person charged by the Tribunal with crimes committed in that area who
has admitted his criminal conduct. It accepts his view that this acknowledgement of wrongdoing is
extremely important for the entire community in its continuing process of recovery and
reconciliation.65
72. The Trial Chamber accordingly considers that Bralo’s voluntary surrender, his plea of
guilty, the steps he has taken to atone for his crimes, and his genuine remorse, are all significant
mitigating factors.
(f) Co-operation with the Office of the Prosecutor
73. Rule 101(B)(ii) clearly states that “substantial co-operation with the Prosecutor” by a
convicted person may count as a mitigating circumstance in sentencing. In its Sentencing Brief, the
Defence includes a section on “positive co-operation of value to the Tribunal.” In this section, it
states that (a) Bralo handed over documents to UN authorities in 1997, which have been used in at
least one trial; (b) Bralo renders himself compellable before the Tribunal as a witness in future
proceedings, and has placed no restriction on the use of the Factual Basis for the Plea Agreement in
other cases; and (c) Bralo has supplemented the Factual Basis with a further detailed statement,
which may be the basis for further enquiries by the Prosecution.66
74. In addition, at the Sentencing Hearing the Defence argued that, while Bralo refused to meet
privately with the Prosecution in the United Nations Detention Unit, to give an interview, he is
willing to be questioned by the Prosecution, or the Chamber, in some formalised way. The Defence
proposed a kind of deposition procedure as a possible manner in which such formal questioning
could take place, emphasising Bralo’s desire that it be done on the record rather than behind closed
doors, in order to minimise the threats to his and his family’s safety that would be consequent upon
any hint that a private deal had been struck by him with the Prosecution. The Defence requested
guidance from the Trial Chamber on how such a process could be undertaken, and submitted that
the willingness of Bralo to go through the process should be taken into account as a form of co-
65
Statement of Mehmed Ahmic, appended to Defence Brief.
66
24
operation with the Prosecution. The Defence finally argued that the Factual Basis for the Plea
Agreement may be being used in another case, which is not the subject of public proceedings, and it
sought to know whether this was indeed the case as it might be evidence that goes to Bralo’s co-
operation.
75. In response to the proposal for some kind of deposition proceedings, the Prosecution stated
at the Sentencing Hearing that this would not amount to “substantial co-operation” within the
meaning of Rule 101(B)(ii). It further argued that any person could be compelled to appear as a
witness before the Tribunal, and that Bralo’s willingness to be so compelled could not therefore
amount to a positive act of co-operation. The Prosecution cited the Blaškić Judgement and the
Todorović Judgement in support of the view that any evaluation of the co-operation of an accused
person depends on the extent and quality of the information that he provides.67 It also argued that
the written statement given by Bralo, and appended to the Defence Brief, is incomplete, in that there
are areas which he did not discuss. The Prosecution further compared the purported co-operation of
Bralo with the types of co-operation that it has received from other accused in other cases, in which
original documentation has been provided; the accused person has submitted himself to interviews
with the Prosecution; and the accused has given actual testimony in cases. Finally, the Prosecution
stated that it was not able to confirm whether or not the Factual Basis was being used in another
case, due to its confidentiality obligations, but noted that it had provided the Trial Chamber on an ex
parte basis with information that could be analysed to determine its value as evidence of co-
operation by Bralo with the Prosecution.
76. There exists, therefore, a profound difference between the submissions of the Prosecution
and the Defence over whether Bralo has provided “substantial co-operation” that should be taken
into account as a mitigating circumstance. This dispute does not concern the facts of what Bralo
has or has not done, but rather the meaning to be attached to his acts or omissions and the value to
be placed on them as evidence of co-operation. The Trial Chamber concurs with the finding in the
Vasiljević Trial Judgement, which was upheld on appeal, that the amount of co-operation given by
an accused need not be “substantial” for it to be taken into account in the first place.68 In other
words, the Trial Chamber can assess any purported co-operation given by Bralo to the Prosecution
and determine its value and the weight to be given to it, if any, as a mitigating circumstance. The
67
Prosecutor v. Blaškić, Case No. IT-95-14-T, Judgement, 3 March 2000 (“Blaškić Trial Judgement”), para. 774;
Prosecutor v. Todorović, Case No. IT-95-9/1-S, Judgement, 31 July 2001, para. 86.
68
Prosecutor v. Vasiljević, Case No. IT-98-32-T, Judgement, 29 November 2002, para. 299; Prosecutor v. Vasiljević,
Case No. IT-98-32-A, Judgement, 25 February 2004, para. 180.
25
Trial Chamber also agrees with the Blaškić Trial Chamber that “the evaluation of the accused’s co-
operation depends both on the quantity and quality of the information he provides.”69
77. In the Prosecution’s view, co-operation of a nature that should be considered as a factor in
mitigation of punishment has not occurred in the present case. The Trial Chamber notes, however,
that the Prosecution has not disputed that Bralo did provide some documents to the international
forces in Bosnia and Herzegovina in 1997, which have been used in other proceedings before the
Tribunal. Without having itself received this information, it is difficult for the Trial Chamber to
assess its quantity and quality, but it takes into account its provision nonetheless.
78. In addition to the provision of documentary material, the Trial Chamber takes into
consideration the professed willingness of Bralo to provide further information to the Prosecution in
the form of some kind of deposition. It notes, however, that Bralo has refused to meet privately
with the Prosecution for an interview, which is the normal procedure for the taking of information
from an accused or convicted person, out of a fear that this would have consequences for his and his
family’s safety. Whether or not these fears are justified, it remains the case that it is the function of
the Prosecution to gather information and evidence for use in trials before the Tribunal, and it is not
for a Trial Chamber to interfere in that evidence-gathering process. It is in the context of a
particular trial that the Chamber hearing that particular case is empowered to issue orders for the
taking of depositions pursuant to Rule 71. Therefore, this Trial Chamber cannot issue a general
order for a deposition to be taken from Bralo, which does not relate to specific trial proceedings.
Nonetheless, for the purposes of assessing Bralo’s “substantial co-operation” with the Prosecution,
the Trial Chamber takes into account his willingness to be available to give some kind of deposition
to the Prosecution, as discussed at the Sentencing Hearing.
79. The Trial Chamber finds, however, that his willingness to give oral or written testimony in
future cases has limited value, for it does not go beyond what is required of any individual who is
called to give evidence to the Tribunal.
80. Finally, with regard to the use that may be made of the Factual Basis agreed between Bralo
and the Prosecution, the Trial Chamber finds that this is also of limited value as evidence of co-
operation from Bralo. While he has placed no restriction on the use of the Factual Basis, and
therefore is not being obstructive, it does not necessarily follow that he is being positively co-
69
Blaškić Trial Judgement, para. 774.
26
operative with the Prosecution. Therefore, even if the Factual Basis is being used by the
Prosecution in other cases before the Tribunal, its use does not imbue it with value as evidence of
co-operation from Bralo.
81. In conclusion, the Trial Chamber finds that there is not evidence of “substantial” co-
operation from Bralo with the Prosecution. There is evidence of some co-operation, in the form of
provision of documents and a willingness to give information, albeit in a prescribed format, and the
Trial Chamber gives that appropriate weight as moderate co-operation.
(g) Behaviour in the United Nations Detention Unit
82. The Defence has submitted a statement from Tim McFadden, Chief of the United Nations
Detention Unit in the Hague, which describes Bralo’s behaviour in detention as good. The Trial
Chamber notes that good behaviour in detention may be considered as a mitigating circumstance,70
and accordingly takes it into account in the determination of sentence in the present case.
3. Conclusion
83. The Trial Chamber therefore finds that Bralo is entitled to have the following mitigating
circumstances taken into consideration:
(1) his family and personal circumstances;

(2) his guilty plea long before trial;
(3) his remorse and efforts to atone for his crimes;
(4) his voluntary surrender to the Tribunal;
(5) his co-operation with the Prosecution; and
(6) his good behaviour in detention.
While the Trial Chamber gives little weight to the first, fifth and sixth of these circumstances, it
does consider that Bralo’s guilty plea and the time at which it was tendered, along with his remorse
and efforts to atone for his crimes, and his voluntary surrender, together warrant substantial
modification of the sentence that would otherwise be appropriate.
70
See, e.g., Prosecutor v. Blaškić, Case No. IT-95-14-A, Judgement, 29 July 2004 (“Blaškić Appeals Judgement”),
para. 728; Kordić and Čerkez Appeals Judgement, para. 1091; Banović Sentencing Judgement, para. 63.
27
C. The General Practice Regarding Prison Sentences in the Courts of the former Yugoslavia
84. The Prosecution correctly points out in its Sentencing Brief that the Trial Chamber is
required to take into account the sentencing practices of the courts of the former Yugoslavia.71
While a Trial Chamber should have “recourse to”72 and should “take into account”73 the general
practice regarding prison sentences in the courts of the former Yugoslavia, it is not bound by such
practice.74 In the Krstić case, the Appeals Chamber endorsed the position enunciated in the
Kunarac Trial Judgement:
Although the Trial Chamber is not bound to apply the sentencing practice of the
former Yugoslavia, what is required certainly goes beyond merely reciting the
relevant criminal code provisions of the former Yugoslavia. Should they diverge,
care should be taken to explain the sentence to be imposed with reference to the
sentencing practice of the former Yugoslavia, especially where international law
provides no guidance for a particular sentencing practice. The Trial Chamber
notes that, because very important underlying differences often exist between
national prosecutions and prosecutions in this jurisdiction, the nature, scope and
the scale of the offences tried before the International Tribunal do not allow for an
automatic application of the sentencing practices of the former Yugoslavia.75
85. The Criminal Code of the Socialist Federative Republic of Yugoslavia (“SFRY”) was
adopted in 1976, and served as the applicable law in the entire territory of the former Yugoslavia
until 1991.76 Following the break-up of SFRY, most of the newly formed countries adopted their
own criminal codes between 1994 and 1998, drawing heavily on the provisions of the SFRY
Criminal Code.77 Therefore, at the time relevant to this Indictment, the law that was applicable in
Bosnia and Herzegovina was the SFRY Criminal Code.
86. The Trial Chamber takes into consideration the offences and the punishments that could
have been imposed under the criminal law of the former Yugoslavia. Article 34 of the SFRY
Criminal Code establishes the types of punishment that may be imposed in that jurisdiction,
including capital punishment and imprisonment.78 Further, Article 38 of the SFRY Criminal Code
sets out the terms of imprisonment: although imprisonment could not usually exceed 15 years, this
71
72
Article 24 of the Statute.
73
Rule 101(B) of the Rules.
74
See, e.g., Blaškić Appeals Judgement, para. 681.
75
Prosecutor v. Kunarac, Kovač, and Vuković, Case No. IT-96-23-T & IT-96-23/1-T, Judgement, 22 February 2001,
para. 829, cited with approval in Krstić Appeals Judgement, para. 260.
76
See Prosecutor v. Obrenović, Case No. IT-02-60/2-S, Sentencing Judgement, 10 December 2003, para. 57.
77
Ibid.
78
Ibid, para. 58.
28
was extended to a maximum of 20 years for those crimes otherwise eligible for the death penalty.79
In 1977, the death penalty was abolished in some republics of the SFRY by constitutional
amendment, but Bosnia and Herzegovina was not among them.80 When Bosnia and Herzegovina
abolished the death penalty in 1998, it was replaced by imprisonment of 20–40 years for the gravest
criminal offences in the Federation of Bosnia and Herzegovina and with life imprisonment in the
Republika Srpska in October 2000.81
87. The Prosecution directs the attention of the Trial Chamber to Article 142 of the SFRY
Criminal Code, entitled “Criminal Offences Against Humanity and International Law,” which
covers crimes committed during armed conflict. Article 142 of the SFRY Criminal Code permits a
range of sentence from five years as a minimum to the maximum penalty of death for violations of
international law in times of war or armed conflict.82
88. The Trial Chamber finds that of the provisions within the SFRY Criminal Code, Article 142
most closely reflects the criminal conduct for which Bralo has been convicted under count 1 to 8 of
the Indictment. In the former Yugoslavia, such criminal conduct would have been eligible for the
death penalty, or twenty years in lieu of the death penalty, based on the discretion of the judge.
Subsequent to the abolition of the death penalty, the Trial Chamber finds that long-term
imprisonment is foreseen. The Trial Chamber also notes that Article 41(1) of the SFRY Criminal
Code directs courts in that jurisdiction to take into consideration all of the relevant circumstances,
79
Ibid. Article 38 of the SFRY Criminal Code states:
Imprisonment: (1) The punishment of imprisonment may not be shorter than 15 days nor longer than 15 years. (2) The
court may impose a punishment of imprisonment for a term of 20 years for criminal acts eligible for the death penalty.
(3) For criminal acts committed with intent for which the punishment of fifteen years imprisonment may be imposed
under statute, and which were perpetrated under particularly aggravating circumstances or caused especially grave
consequences, a punishment of imprisonment for a term of 20 years may be imposed when so provided by statute.
80
Prosecution Brief, para. 92 (citing Prosecutor v. Momir Nikolić, Case No. IT-02-60/1-S, Sentencing Judgement,
2 December 2003 (“Momir Nikolić Sentencing Judgement”), para. 98).
81
See Prosecution Brief, para. 96 (citing, inter alia, Momir Nikolić Sentencing Judgement, at para. 98). Article 38 of
the Criminal Code of the Federation of Bosnia and Herzegovina provides for long term imprisonment ranging from
20 to 40 years for “the gravest forms of criminal offences […] committed with intention.” Article 32 of the Criminal
Code of the Republika Srpska, which entered into force on 1 October 2000, provides for life imprisonment as a
method of punishment. Further, Article 451 provides that “The final and binding death punishment pronounced
before the entry into force of this Code is turned into the sentence of life imprisonment.”
82
Article 142 of the SFRY Criminal Code (“War crime against the civilian population”) states, in part:
Whoever in violation of rules of international law effective at the time of war, armed conflict or occupation, order that
civilian population be subject to killings, torture, inhuman treatment, biological experiments, immense suffering of
violation of bodily integrity or health; dislocation or displacement of forcible conversion to another nationality or
religion; forcible prostitution or rape; application of measures of intimidation and terror, taking hostages, imposing
collective punishment, unlawful bringing in concentration camps and other illegal arrests and detention, deprivation
of rights to fair and impartial trial; forcible service in the armed forces of enemy’s army or in its intelligence service
or administration; forcible labour, starvation of the population, property confiscation, pillaging, […] who commits
one of the foregoing acts, shall be punished by imprisonment for not less than five years or by the death penalty.
29
including the personal circumstances of the convicted person and his conduct after the commission
of the offences, in their determination of the appropriate punishment to be imposed.
89. The Trial Chamber takes all of these factors relating to sentencing practices in the former
Yugoslavia into consideration in making its determination in this case.
V. TRIAL CHAMBER’S DETERMINATION OF SENTENCE
A. Submissions of the Parties
90. Following all of the arguments raised in its Sentencing Brief, the Prosecution requests that
the Trial Chamber impose a minimum term of imprisonment of 25 years on Bralo.83 It further
clarified at the Sentencing Hearing that it was requesting a mandatory minimum of 25 years
imprisonment, before Bralo could be considered for release. Citing the case of Dragan Nikolić, the
Prosecution argued that it is permissible for a Trial Chamber to specify a minimum term of
imprisonment.84
91. While the Defence did not specify in its Sentencing Brief the sentence that it believes
appropriate in the present case, in response to the Prosecution argument about the mandatory
minimum sentence of 25 years, it stated at the Sentencing Hearing that this would amount to a
sentence of 40 to 50 years in a country which gives between one third and one half of credit for
good behaviour.85
92. In its Sentencing Brief, the Defence chose three previous cases before the Tribunal as
comparators with the present case, for the purpose of examining the sentences imposed and
ensuring proportionality. The first of these is the Kordić case, in which the accused Dario Kordić
received a sentence, at trial, of 25 years imprisonment. Kordić had been convicted of overall
responsibility for crimes committed by HVO forces in central Bosnia between November 1991 and
March 1994, including some of the same crimes charged in the present Indictment. The second
case cited by the Defence is the Kupreškić case, in which the accused Vladimir Šantić was
sentenced at trial to 25 years imprisonment for his commanding role in the attack on Ahmići in
83
84
Prosecutor v. Dragan Nikolić, Case No. IT-94-2-A, Judgement on Sentencing Appeal, 4 February 2005, para. 95.
30
1993, which was reduced to 18 years on appeal. Finally, the Defence also cited the Furundžija
case, in which the accused Anto Furundžija had originally been charged on the same indictment as
Bralo. At trial, Furundžija was sentenced to 10 years imprisonment for his role in the interrogation,
torture and rape of Witness A. With regard to the sentences imposed on Kordić and Šantić, the
Defence notes that they did not plead guilty to their crimes, that their level of command was
considered as an aggravating factor, and that they did not express any remorse.86 It submits that a
lower sentence is therefore appropriate for Miroslav Bralo.
B. Findings
93. The Trial Chamber takes note of the sentences imposed in the cases cited by the Defence,
and other prior cases before the Tribunal. However, in none of these cases have individuals been
convicted of exactly the same crimes as Miroslav Bralo, committed in the same manner, and with
the same aggravating and mitigating circumstances. It is the duty of this Trial Chamber to ensure
that the punishment of Bralo is tailored to fit the particular crimes of which he has been convicted,
taking into account their gravity and their individual circumstances.87 Therefore, while other cases
may provide guidance on sentencing ranges, they cannot determine the most appropriate sentence to
be imposed on Miroslav Bralo.
94. With regard to the imposition of a mandatory minimum sentence, the Trial Chamber notes
that, while it may choose to recommend a minimum term of imprisonment to be served by Bralo,
this has occurred only rarely in cases before the Tribunal.88 Article 28 of the Statute and Rules 123,
124 and 125 of the Rules provide for a procedure whereby the State in which a convicted person is
serving his sentence must notify the Tribunal of the eligibility of the convicted person for early
release, and the President of the Tribunal then determines whether such release is appropriate,
taking into account the considerations specified in Rule 125.89 Therefore, when a Trial Chamber
sentences a convicted person to a certain number of years’ imprisonment, it does so in the
85
86
87
88
See Krstić Appeals Judgement, para. 274. Minimum periods of imprisonment to be served prior to release were
recommended in the Tadić case, the Stakić case, and the Nikolić case. See Prosecutor v. Tadić, Case No. IT-94-1-T,
Sentencing Judgement, 14 July 1997, para. 76; Prosecutor v. Stakić, Case No. IT-97-24-T, Judgement, 31 July 2003,
para. 253; Dragan Nikolić Judgement, para. 282.
89
Rule 125 states that: “[i]n determining whether pardon or commutation is appropriate, the President shall take into
account, inter alia, the gravity of the crime or crimes for which the prisoner was convicted, the treatment of similarly-
situated prisoners, the prisoner’s demonstration of rehabilitation, as well as any substantial cooperation of the
prisoner with the Prosecutor.
31
awareness that there is a possibility of early release under the law of whatever State the sentence is
served in, but also that the President of this Tribunal ultimately determines the matter. In the
circumstances of the present case, the Trial Chamber finds it unnecessary to make a
recommendation on the minimum sentence to be served by Bralo before he should be eligible for
early release.
95. The Trial Chamber has conducted a careful review of the sentences that have been imposed
by this Tribunal in other cases. In light of this sentencing practice, and taking account only of the
gravity of the crimes committed by Bralo, including the aggravating circumstances, the Trial
Chamber finds that a sentence of at least 25 years’ imprisonment would be warranted. However,
having carefully weighed the mitigating circumstances that have also been found, the Trial
Chamber concludes that a single sentence of 20 years’ imprisonment is a proportionate and
appropriate punishment.
C. Credit for Time Served
96. Miroslav Bralo is entitled to credit for the time he has spent in detention since his transfer to
the custody of the Tribunal on 12 November 2004.
32
VI. DISPOSITION
97. For the foregoing reasons, the Trial Chamber
PURSUANT TO the Statute and the Rules,
SENTENCES Miroslav Bralo to a single sentence of 20 years’ imprisonment;
STATES that, pursuant to Rule 101(C) of the Rules, he is entitled to credit for time served from 12
November 2004, up to and including the day of this Judgement;
ORDERS that, pursuant to Rule 103(C) of the Rules, Miroslav Bralo remain in the custody of the
Tribunal pending the finalisation of arrangements for his transfer to the State where he shall serve
his sentence.
Done in English and French, the English text being authoritative.
_______________________
Iain Bonomy, Presiding
________________________ _____________________
Patrick Robinson O-Gon Kwon
Dated this seventh day of December 2005

At The Hague
The Netherlands
[Seal of the Tribunal]
33

Judgement Yugoslavia IHL Assingment

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UNITED

International Tribunal for the Case No. IT-95-17-S

IN THE TRIAL CHAMBER

Before: Judge Iain Bonomy, Presiding

Registrar: Mr. Hans Holthuis

Judgement of: 7 December 2005

The Office of the Prosecutor:

Mr. Mark Harmon

Counsel for Miroslav Bralo:

Mr. Jonathan Cooper

I. INTRODUCTION AND PROCEDURAL HISTORY .............................................................1

II. FACTUAL BASIS OF GUILTY PLEA ....................................................................................4

III. APPLICABLE LAW...................................................................................................................6

A. THE STATUTE AND RULES ..........................................................................................................6

IV. SENTENCING FACTORS ........................................................................................................8

A. THE GRAVITY OF THE CRIMES AND AGGRAVATING CIRCUMSTANCES .........................................8

V. TRIAL CHAMBER’S DETERMINATION OF SENTENCE ...............................................30

A. SUBMISSIONS OF THE PARTIES .................................................................................................30

3. The Office of the Prosecutor (“Prosecution”) filed a proposed amended indictment on

B. The Plea Agreement

C. The Sentencing Proceedings

II. FACTUAL BASIS OF GUILTY PLEA

III. APPLICABLE LAW

A. The Statute and Rules

18. The provisions of the Statute relevant to sentencing are as follows:

1. The penalties imposed by the Trial Chamber shall be limited to imprisonment. In

Imprisonment shall be served in a State designated by the International Tribunal from a

(A) A convicted person may be sentenced to imprisonment for a term up to and

IV. SENTENCING FACTORS

A. The gravity of the crimes and aggravating circumstances

1. Nature of the crimes

(a) Personal background of Bralo and prior character

(c) Time period covered by the Indictment

(f) Co-operation with the Office of the Prosecutor

(g) Behaviour in the United Nations Detention Unit

(1) his family and personal circumstances;

V. TRIAL CHAMBER’S DETERMINATION OF SENTENCE

A. Submissions of the Parties

C. Credit for Time Served

97. For the foregoing reasons, the Trial Chamber

PURSUANT TO the Statute and the Rules,

SENTENCES Miroslav Bralo to a single sentence of 20 years’ imprisonment;

Done in English and French, the English text being authoritative.

Dated this seventh day of December 2005

[Seal of the Tribunal]

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