The Prosecutor v. Goran Jelisić

Court	International Criminal Tribunal for the former Yugoslavia (ICTY) Appeals Chamber, The Netherlands
Case number	IT-95-10-A
Decision title	Judgment
Decision date	5 July 2001
Parties	The Prosecutor Goran Jelisić
Categories	Crimes against humanity, Genocide, War crimes
Keywords	acquittal, Brcko, dolus specialis, erroneous standard, fair trial, genocide, guilty plea, Sentence
Links	Judgment
Other countries involved	Bosnia and Herzegovina

Summary

Jelisić was brought before the ICTY for his role in the commission of crimes in the municipality of Brčko (Bosnia and Herzegovina) in 1992.

Jelisić pleaded not guilty to genocide and guilty to war crimes and crimes against humanity. With respect to genocide, Trial Chamber I found him not guilty due to insufficient evidence to sustain his responsibility. For the crimes to which he pleaded guilty, Trial Chamber I sentenced him to 40 years of imprisonment. Therefore, Trial Chamber I’s acquittal of genocide was appealed by the Prosecutor, and Jelisić was allowed to respond.

The Appeals Chamber allowed the Prosecution’s first two appeals, in which it upheld the argument that Trial Chamber I erred when entered an acquittal without first hearing the Prosecution, and when applied an erroneous legal standard which led it to incorrectly assess the evidence.

The Appeals Chamber was unable to conclude that Jelisić did not possess the special intent required for genocide (the intent to destroy, in whole or in part, a national, ethnical, racial or religious group). However, the Appeals Chamber declined to reverse the acquittal on genocide.

The Appeals Chamber found an error in Trial Chamber I’s finding that Jelisić was guilty of two murders, when in fact he pleaded guilty to only one.

Jelisić’s sentence was affirmed.

Procedural history

The second amended indictment was filed on 19 October 1998.

On 9 September 1998, the parties agreed to set out a factual basis, and on 29 October 1998, Jelisić pleaded not guilty to genocide and guilty to the counts of violations of laws or customs of war and crimes against humanity. The trial proceedings remained to deal with the charge of genocide alone. (para. 2). See also ICTY, '"Brcko" Indictment: Goran Jelisic Pleads Guilty to the Majority of the Charges in the Second Amended Indictment', ICTY Press Release, 29 October 1998.

On 19 October 1999, Trial Chamber I pronounced its oral judgment in which it convicted Jelisić of violations of laws or customs of war and crimes against humanity, to which he pleaded guilty, but acquitted him of genocide due to absence of sufficient evidence to sustain his liability (see ICTY, 'Jelisic Case: Goran Jelisic Acquitted of Genocide and found Guilty of Crimes against Humanity and Violations of Laws or Customs of War', ICTY Press Release, 19 October 1999.

The written judgment of Trial Chamber I was issued on 14 December 1999, sentencing Jelisić to 40 years’ imprisonment.

Related developments

On 7 January 2002, the Defence counsel for Goran Jelisić filed a confidential request for review of the judgments of Trial Chamber I and the Appeals Chamber. On 2 May 2002, the Appeals Chamber dismissed the request.

On 29 May 2003, Goran Jelisić was transferred to Italy to serve his sentence (see ICTY, 'Goran Jelisic Transferred to Italy to Serve Prison Sentence', ICTY Press Release, 29 May 2003.

Legally relevant facts

Although the Appeals Chamber did not restate the relevant facts underlying the case, Trial Chamber I provided a detailed description which will serve as a source for this section.

The events giving rise to the case have occurred in the municipality of Brčko in the north-eastern part of Bosnia and Herzegovina. Serb forces obtained control over the area from about 30 April 1992. As a consequence, the Croat and Muslim residents were expelled from their homes and held at collection centres where many were killed, beaten or otherwise mistreated. On 1 May 1992, radio broadcasts ordered the non-Serb population to surrender their weapons. Jelisić was part of the Bosnian Serb forces that took part in the operation against the non-Serb civilians. From May until July 1992, the Serb forces detained non-Serbs at the Luka camp, a facility outside the town of Brčko (Bosnia and Herzegovina). The detainees were subjected to inhumane conditions, killings, and mistreatments. Jelisić regularly entered the Luka camp, selected detainees for interrogation, during which he beat, and often shot and killed them. (para. 18 et seq. of the judgment rendered by Trial Chamber I on 14 December 1999).

Core legal questions

Can the Appeals Chamber uphold any of the grounds adduced by the Appellants?

Specific legal rules and provisions

Article 25 of the ICTY Statute.
Rules 98bis and 117 of the ICTY Rules of Procedure and Evidence.

Court's holding and analysis

The Prosecution argued that Trial Chamber I erred when acquitted Jelisić of genocide, without first hearing the Prosecution. The Appeals Chamber held that this was “not consistent with the requirement to hold a fair trial” (para. 27) and allowed the Prosecution’s appeal.

The Appeals Chamber further found that “the Trial Chamber’s application of an erroneous standard in making its determination under Rule 98bis [of the ICTY Statute] led it to incorrectly assess evidence,” allowing the Prosecution’s second appeal (para. 39).

The Appeals Chamber also upheld, in part, the Prosecution’s third appeal, in which the latter argued errors in the assessment of the dolus specialis element of the crime of genocide. The Appeals Chamber was “not able to conclude that … no reasonable Trial Chamber could have found that [Jelisić] had such an intent” (para. 68). However, the Appeals Chamber considered that “it [was] not in the interests of justice to grant the prosecution’s request [for a retrial] and accordingly decline[d] to reverse the acquittal” (para. 77).

The Appeals Chamber found that “the Trial Chamber erred in finding the cross-appellant guilty of two murders [as crimes against humanity and war crimes] …” when Jelisić in fact pleaded guilty to only one of the murders. (para. 95)

Jelisić’s sentence of 40 years of imprisonment was affirmed. (p.41)

Further analysis

A. McDonald, ‘The Year in Review’ in McDonald et al. (eds.), Yearbook of International Humanitarian Law 2001, T.M.C. Asser Press 2004, see esp. pp. 280 et seq.;
Christopher Blakesley, ‘Commentary on Judgement, Prosecutor v. Jelisić, Case No. IT-95-10-A, A. Ch., 5 July 2001’ in Klip and Sluiter (eds.), Annotated Leading Cases of International Criminal Tribunals, Vol. VII: The International Criminal Tribunal for the former Yugoslavia 2001 , Intersentia 2005, see esp. pp. 562 et seq..