Mental State Defences before the International Criminal Tribunal for the Former Yugoslavia: Prosecutor V Esad Landzo: International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber Judge Hunt, Judge Riad, Judge Nieto-Navia, Judge Bennouna, Judge Pocar20, February 2001

Article excerpt

Potentially, numbers of defendants before the International Criminal Tribunal for the Former Yugoslavia (and other such tribunals, e.g., in Rwanda and Cambodia) may have mental states which impact upon their criminal responsibility and culpability for crimes for which they are indicted. Uncertainty attached to the role of such psychiatric and personality disorders until the decision of the Appeals Chamber in Prosecutor v Deralic, Mucic (aka Pavo), Delic and Landzo (aka Zenga) in respect of a prison guard found by the Trial Chamber to have engaged in heinous acts of homicide and torture. This article explores the ramifications of the Appeals Chamber decision and argues that while scope remains for defendants to contend that their conduct may provide a defence of significant mitigation for the determination of sentences, the threshold for an outright defence is high and difficult issues remain to be worked through in terms of the mitigating effect of personality disorders suffered by defendants.


Relatively few international criminal cases have required authorative assessment of mental state issues, either by way of complete or partial defences or by way of mitigation at sentencing. Little scholarly attention has also been given to the subject. (1) In particular, the distinctions for international criminal proceedings between psychiatric disorders and personality disorders within the meaning of the World Health Organisation's International Classification of Diseases ('ICD-10', 1992) and the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders ('DSMIV-TR, 2000) have not been the subject of significant exploration.

Few efforts thus far have been made by defendants to raise mental health issues before chambers of war crimes tribunals, perhaps because of an inhibition felt by members of the military or politicians to be regarded as psychiatrically unwell, as well as a desire on their part to continue to remain in high standing in the eyes of former colleagues or constituents. However, with the imposition of a number of significant sentences by the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia, further thought may be given on behalf of defendants to raising mental health matters both during hearings and at sentencing.

While the International Criminal Court Statute makes specific provision for a full mental state defence, there has been a level of uncertainty about the extent to which lesser, partial defences may operate to provide a level of exculpation or exploration for defendants based upon abnormalities of mind which might be regarded as impairing criminal responsibility.

In 2001 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 ('the Tribunal'), in its Appeals Chamber (2) was called upon to determine appeals arising from rulings by the Trial Chamber (3) in relation to the mental state of a defendant, Landzo, who had engaged in homicidal and sadistic behaviour in the course of his work as a guard at a prison camp which detained Bosnian Serbs.

This article analyses the decision of the Appeals Chamber and examines what options remain for mental states to be taken into account in relation to the liability and assessment of moral culpability of defendants before the Tribunal. It particularly scrutinises the relevance of personality disorders, such as psychopathy, to act as a mitigating factor in the sentencing of defendants found to have committed serious infractions.

The Charges Against Landzo

The indictment against the four accused concerned allegations of grossly criminal behaviour at a detention facility in the village of Celebici located in the Konjic municipality in central Bosnia and Herzegovina during 1992. The indictment before the Trial Chamber charged the four accused with breaches of the Geneva Conventions of 1949, under Article 2 of the Statute, and violations of the laws or customs of war, under Article 3 of the Statute, in connection with acts said to have been committed at the Celebici prison camp. …