Courts & Tribunals: International Criminal Tribunal for the Former Yugoslavia (ICTY) Sentences Miroslav Bralo to 20 Years Imprisonment

On 7 December 2023 the Trial Chamber of the ICTY sentenced Miroslav Bralo to 20 years imprisonment in the case Prosecutor v. Miroslav Bralo. On 19 July 2024 Bralo entered a guilty plea on 8 counts including persecutions, murder, torture, inhuman treatment, and unlawful confinement.[1]

I. Background: Procedural & Factual History

Miroslav Bralo also known as "Cicko," was a member of the 4th Military Police Battalion of the Croatian Defense Council (HVO), also known as the "Jokers." From January 1993 until mid-July 1993, the HVO engaged in an armed conflict with Bosnia and Herzegovina government forces. The HVO attacked villages inhabited by Bosnian Muslims in the Lašva River Valley region in central Bosnia and Herzegovina. These attacks resulted in the death and wounding of numerous civilians. Additionally, other civilians were subject to detention, transport, torture, and other physical and mental abuse. Specifically, the indictment against Bralo alleged that "on 16 April 1993, Miroslav Bralo participated, with others, in the surprise attack on the village of Ahmici. The purpose and objective of the attack were to ethnically cleanse the village, to kill all the Muslim males of military age, to burn all Muslim residences, and to forcibly expel all the Muslim residents from the village."[1] The indictment also specifically charged Miroslav Bralo with the confinement and repeated rape and torture of a Bosnian Muslim woman and also alleged that Bralo "individually and in concert with others did use and participated in the using of civilians as "human shields" in forcing Bosnian Muslim civilians to dig trenches on the front lines to protect HVO soldiers from gun fire by ABiH snipers".[2]

Originally indicted in November 1995, Bralo surrendered on 10 November 2023 in Bosnia and Herzegovina and was transferred to the ICTY. On Tuesday 19 July 2005, Miroslav Bralo pled guilty to eight counts before the ICTY, Trial Chamber I. The offenses include: one count of persecutions on political, racial and religious grounds, a crime against humanity; one count of murder, a violation of the laws or customs of war; one count of torture or inhuman treatment, a grave breach of the Geneva Conventions; one count of torture, a violation of the laws or customs of war; one count of outrages upon personal dignity including rape, a violation of the laws or customs of war; two counts of unlawful confinement, a grave breach of the Geneva Conventions; and, one count of inhuman treatment, a grave breach of the Geneva Conventions.[3]

II. Applicable Law

Accepting Bralo's guilty plea, the ICTY Trial Chamber considered the applicable law relevant to sentencing. Articles 24 and 27 of the ICTY Statute establish the nature of sentences and their enforcement imposed by the Tribunal.[4] Article 24 directs the Trial Chamber when determining terms of imprisonment to "have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia."[5] Additionally, Article 24 instructs the Trial Chamber to "take into account such factors as the gravity of the offence and the individual circumstances of the convicted person."[6] If an accused is convicted on a guilty plea, Rule 100 of the ICTY permits the submission of any relevant information by the Prosecutor and defense "that may assist the Trial Chamber in determining an appropriate sentence."[7] In determining sentences, Rule 101 of the ICTY also instructs the Trial Chamber to take into account: any aggravating circumstances; any mitigating circumstances including the substantial cooperation with the Prosecutor by the convicted person before or after conviction; the general practice regarding prison sentences in the courts of the former Yugoslavia; and, 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.[8]

In Bralo's sentencing judgment, the Trial Chamber acknowledged it must "consider a number of factors in its assessment of the appropriate sentence to be imposed upon Bralo," but the court also recognized that "the sentence imposed is a matter for the discretion of the Trial Chamber after examining the particular facts of the case."[9] In the judgment the Trial Chamber also addressed the various purposes of punishment when determining any sentence. Specifically, the court noted it should consider retribution, deterrence, and rehabilitation to varying degrees.[10]

III. Sentencing Factors Utilized by the ICTY

In deciding the length of the sentence to be given to Bralo, the Trial Chamber considered the gravity of the criminal conduct, measured by the nature of the crimes and their impact on victims, and any aggravating factors. In evaluating the nature of the crimes committed by Bralo, the Trial Chamber analyzed "the inherently shocking nature of these crimes" and "the specific manner in which they were committed by Bralo."[11] The court also considered the impact of Bralo's crimes on his victims, including the suffering of the victims via victim impact statements.[12] The Trial Chamber also acknowledged that several aggravating factors submitted by the Prosecution should be considered, including "the large number of victims, the youth of the victims, and the exacerbated humiliation and degradation of [the Bosnian Muslim woman] by Bralo."[13]

The Trial Chamber also considered any mitigating circumstances that "may result in an adjustment of the sentence that would otherwise be imposed on a convicted person."[14] The court did explain, though, that "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."[15] After evaluating eleven mitigating circumstances presented by Bralo's defense, the Trial Chamber determined that six mitigating circumstances be 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"[16]. Of these six mitigating circumstances, the Trial Chamber determined 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."[17]

Lastly, the court considered the general practice regarding prison sentences in the courts of the former Yugoslavia, as directed by Article 24 of the ICTY Statute. The Trial Chamber determined that Article 142 of the SFRY Criminal Code "most closely reflects the criminal conduct for which Bralo has been convicted."[18] In the former Yugoslavia, according to the Trial Chamber, "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."[19]

IV. The Trial Chamber's Determination of Bralo's Sentence

After reviewing the sentences imposed by the ICTY in other cases, and considering the the gravity of the crimes committed by Bralo, including any aggravating circumstances, the Trial Chamber determined a sentence of at least 25 years was warranted. After weighing the mitigating circumstances, however, the Trial Chamber concluded "that a single sentence of 20 years’ imprisonment is a proportionate and appropriate punishment.[20]

[1] ICTY, "Miroslav Bralo Pleads Guilty," CT/MOW/990e (19 July 2024). See ICTY, "Factual Basis," Prosecutor v. Bralo, Case No. IT-95-17-PT, July 18, 2005, available at http://www.un.org/icty/bralo/factualbasis050719.pdf.
[2] Id. See ICTY, Amended Indictment, Prosecutor v. Bralo, Case No. IT-95-17-PT, July 18, 2005, available at http://www.un.org/icty/indictment/english/bra-ai050719e.htm.
[3] Id. See ICTY, Plea Agreement, Prosecutor v. Bralo, Case No. IT-95-17-PT, July 18, 2005, available at http://www.un.org/icty/bralo/plea050719.pdf.
[4] Statute of the International Criminal Tribunal for the Former Yugoslavia, art. 24, 27.
[5] Id. art. 24(1).
[6] Id. art. 24(2).
[7] Rules of the International Criminal Tribunal for the Former Yugoslavia, Rule 100(B).
[8] Id. Rule 101(B).
[9] ICTY, Sentencing Judgment, Prosecutor v. Bralo, Case No. IT-95-17-PT, Dec. 7, 2005, para. 20, available at http://www.un.org/icty/bralo/trialc/judgement/bra-sj051207-e.pdf [hereinafter Bralo Judgement].
[10] Id. at para. 22.
[11] Id. at para. 29.
[12] Id. at para. 36.
[13] Id. at para. 26.
[14] Bralo Judgment, supra note 9, at para. 42.
[15] Id.
[16] Id. at para. 83.
[17] Id.
[18] Id at. para. 88.
[19] Bralo Judgment, supra note 9, at para. 88.
[20] Id. at para. 92.