Celebici Appeal

On November 16, 1998, guilty verdicts and sentences were passed down to Zdravko Mucic, gaoled for seven years, Esad Landzo,15 years, and Hazim Delic, 20 years. The first co-accused Zejnil Delalic was acquitted. (See Tribunal Update No. 102).

All four had been charged with crimes against Bosnian Serbs detained at the Celebici camp near Konjic in 1992.

Immediately after the November 1998 verdicts and sentences, prosecutors announced they planned to appeal against Delalic's acquittal and the "lenient" seven-year sentence handed down to Mucic.

Defence lawyers for Delic and Landzo, however, protested against the "draconian sentences" given to their clients, particularly in view of the "leniency" shown to Delalic and Mucic, both of whom held more senior positions at the time the offences took place.

Delalic was commander of Tactical Group 1 of the Bosnian Army in the region where the camp was situated. Mucic was camp commander. Delic was his deputy and Landzo an "ordinary" camp guard.

The greater part of last week's hearing was taken up with academic discussions on a doctrine of command responsibility, a definition of "knew or had reason to know", applicability of the Geneva Conventions and Common Article 3 relating to conditions of internal conflict, standards of proving a case "beyond reasonable doubt" and the Constitution of Costa Rica.

Defence lawyers for Landzo challenged the eligibility of Judge Elisabeth Odio Benito, who, during the course of the original trial, had been elected vice president in Costa Rica. Landzo's defence team argued that Odio Benito's appointment barred her from sitting as a judge in Costa Rica's highest courts. For the same reason, the defence concluded, she ceased to be eligible as a judge at the Tribunal too.

Another basis for appeal against Landzo's conviction and sentence is the case of the so-called "Sleeping Judge". Defence lawyers claimed Judge Adolphus Karibi-Whyte was asleep during "substantial portions of the trial", thereby denying Landzo "the right to the full and competent judicial decisions of questions of law, fact and evidence." The defence team argued Karibi-Whyte's behaviour had "improperly denied the appellant a fair trial, and the appearance of a fair trial."

The defence presented to the Appeals Chamber 30 hours of video footage from the trial showing Karibi-Whyte sleeping occasionally. The prosecution calculated the judge had been asleep for "only six per cent" of the 30 hours.

Tribunal TV directors have instructions not to show judges, witnesses and other participants in "uncomfortable situations." The defence pointed out that the cameras recorded only part of the judge's sleep and that Karibi-Whyte had not heard "substantial portions of the evidence."

Accused persons have the right "not only to a fair trial, but to awake judges" the defence concluded.

The Appeals Chamber now faces an extremely difficult task - how to set right the glaring inadequacies of the original trial (See Tribunal Update No. 36 Celebici - The Trial in which Everything Has Gone Wrong). Perhaps, the best solution would be a re-trial. But as last week's appeal hearing illustrated neither the prosecution nor the defence want to go down that road.