1 Tuesday, 27 January 2004
2 [Further Initial Appearance]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 11.16 a.m.
6 JUDGE ORIE: Before we start, I've got no transcript on my screen.
7 It's okay now. It's okay.
8 Mr. Registrar, would you please call the case.
9 THE REGISTRAR: Your Honours, Case Number IT-03-72-I, the
10 Prosecutor versus Milan Babic.
11 JUDGE ORIE: Thank you, Mr. Registrar.
12 May I have the appearances. Prosecution, first.
13 MS. UERTZ-RETZLAFF: Yes, thank you, Your Honour. For the
14 Prosecution, from left to right, the case manager Lakshmie Walpita, the
15 trial attorney Sabine Bauer, Alex Whiting, and Hildegard Uertz-Retzlaff.
16 JUDGE ORIE: Thank you, Madam Uertz-Retzlaff. And for the
18 MR. MUELLER: Your Honours from left to right as well, the case
19 manager, Mr. Danilo Cirkovic, my co-counsel, Mr. Robert Fogelnest, and I,
20 myself, Peter Michael Mueller.
21 JUDGE ORIE: Thank you, Mr. Mueller. Mr. Babic, first of all, can
22 you hear me in a language you understand?
23 THE ACCUSED: [Interpretation] Yes, Your Honour.
24 JUDGE ORIE: Now, I did not yet hear you in a language I
25 understand because I was on the wrong channel. But I read that your
1 answer was: "Yes, Your Honour." Yes, thank you, Mr. Babic.
2 We are here today to hear an amended joint motion for
3 consideration of a plea agreement between Milan Babic and the Office of
4 the Prosecutor pursuant to Rule 62 ter of the Rules of Procedure and
5 Evidence. This amended motion was filed on the 22nd of January, and it
6 was preceded by another motion filed on the 12th of January which was also
7 a motion to consider a plea agreement between Milan Babic and the Office
8 of the Prosecutor. Therefore, it needs some explanation what has been
10 The previous motion -- in the previous motion, Mr. Babic committed
11 himself to enter a guilty plea, a plea in which he would plead guilty to
12 aiding and abetting a joint criminal enterprise in respect of count 1;
13 that is, a joint criminal enterprise that committed the crime of
14 persecution. Attached to that first motion was a statement of facts. The
15 Chamber has read that statement of facts and has read the plea agreement,
16 and the Chamber at that time had some doubts as to whether the legal
17 qualification attached to these facts was appropriate.
18 Therefore, the question was whether it was proper to qualify these
19 facts as aiding and abetting to the joint criminal enterprise. Since the
20 Chamber was of a provisional view that this legal qualification might be
21 inconsistent with the facts, the Chamber has sent a message through the
22 senior legal officer to inform the parties about this doubt. This has
23 caused the parties to enter a new plea agreement, and it's this new plea
24 agreement that we will consider today.
25 First of all, I'd like to go in brief through the plea agreement.
1 The accused, so you, Mr. Babic, you committed yourself, you agreed, to
2 plead guilty to count 1 of the indictment alleging persecutions, a crime
3 against humanity, punishable under Article 5(h) and 7(1) of the Statute of
4 the Tribunal. You also agreed, as we read in paragraph 3 of the plea
5 agreement, that you're pleading guilty to count 1 because you're, in fact,
6 guilty as a coperpetrator of the joint criminal enterprise, that is, you
7 acknowledge full responsibility for your actions that are the subject of
8 the indictment.
9 The Prosecution has committed itself according to paragraph 4 of
10 the plea agreement that the Prosecution would move to dismiss without
11 prejudice to either party the remaining charges against Milan Babic as set
12 out in the indictment at the time of the acceptance of a guilty plea by
13 the Trial Chamber. The Prosecution committed itself further to recommend
14 to the Trial Chamber that it impose a term of imprisonment of no more than
15 11 years, and the agreement says that you, Mr. Babic, that you understand
16 that the Trial Chamber is not bound to accept any recommendation and that
17 the Trial Chamber may impose a sentence above or below the recommendation
18 of the Prosecution.
19 It's also stated that the Defence may recommend any sentence it
20 deems appropriate. Further, the Prosecution has committed itself to
21 certain measures of protection and safety.
22 The factual basis of the plea agreement is set out in an annex to
23 it. May I perhaps at this moment ask you, Ms. Uertz-Retzlaff, if the
24 indictment will be amended upon the acceptance of a guilty plea on count
25 1, what exactly would be amended? Would it just be striking out the
1 counts 2 up to 5 as we find them on page 6 of the English version of the
2 indictment? Or would there be any other changes in the previous parts of
3 the indictment?
4 MS. UERTZ-RETZLAFF: Your Honour, there would be additional
5 changes in the section "individual criminal responsibility." And also in
6 the -- in count 1, wherever there is a reference to the mode of liability
7 of Mr. Babic, we would make a change. We would actually precisely then
8 only plea coperpetration committing in the form of a coperpetrator in a
9 JCE. So we would drop aiding and abetting. We would drop the other modes
10 of liability that are claimed here in the alternative in the paragraphs 4
11 through to 9.
12 JUDGE ORIE: Yes.
13 MS. UERTZ-RETZLAFF: To be also even more precise, we think that
14 Mr. Babic's intent reflects more the JCE 3 type of participation, we would
15 also slightly modify paragraph 9 where this issue is addressed.
16 JUDGE ORIE: Yes. So that means that also on the parts of the
17 indictment on which the accused would plead guilty, that amendments still
18 have to be made. I mean, I was in the -- it was the understanding of the
19 Chamber that you would take out the remaining parts, but I do understand
20 that changes are needed as well in respect of the part of the indictment
21 on which the accused committed himself to plead guilty.
22 MS. UERTZ-RETZLAFF: But Your Honours, as those forms of liability
23 are all pleaded in the alternative, the plea agreement actually makes a
24 clear distinction what is the plea about. We do not think that we would
25 need to amend the indictment when the plea agreement is sufficiently clear
1 that Mr. Babic pleads to coperpetration, which automatically shows that
2 the other parts of the indictment would not be valid any more. The other
3 modes of liability. If it were -- because it's alternatively charged, we
4 felt that we would not need to make these amendments because of the plea
6 JUDGE ORIE: Apart from the mode of liability, nothing else would
7 change as far as facts are concerned.
8 MS. UERTZ-RETZLAFF: Yes, Your Honour. It's just the mode of
10 JUDGE ORIE: Yes. Is that the understanding of the Defence as
12 MR. MUELLER: Your Honour, this is the understanding of the
13 Defence as well, very clearly. Thank you.
14 JUDGE ORIE: Thank you, Mr. Mueller.
15 Then we come to the next part of the plea agreement, and that is
16 the factual basis. The factual basis of the plea agreement lists first of
17 all the positions that Mr. Babic held during a longer period of time, that
18 he was a member of the League of Communists of Croatia, that he was a
19 delegate to the last congress of the League of Communists. That's all
20 introductory remarks, so that's about I would say his political past, more
21 or less, which is not the most relevant part of the statement of facts,
22 that he held a senior position in the SDS municipal committee in Knin, and
23 that he assumed the position of president of the SDS party from 1992, and
24 that he held that position until 1995. From 1990 to 1994, he held the
25 position of president of the municipal assembly in Knin, and he later was
1 the president of the Serbian National Council. From December 1990, he was
2 president of the temporary executive council of the Serbian Autonomous
3 District Krajina, and on the 30th of April, he was elected president of
4 the executive council of the SAO Krajina.
5 Later, on the 29th of May 1991, he became the president of the
6 government of the SAO Krajina. On the 1st of August of that same year, he
7 signed a decision applying the law on defence of the Republic of Serbia to
8 the territory of the SAO Krajina, and this made him de jure commander of
9 all armed forces of the SAO Krajina, including special-purpose units of
10 the Krajina Ministry, and commander of the Territorial Defence forces of
11 the SAO Krajina. I'm saying de jure because it's also stated in the
12 statement of facts that he had not at all times de facto control over
13 these units.
14 When the SAO Krajina proclaimed itself the Republic of Serbian
15 Krajina on the 19th of December 1991, Mr. Babic was appointed president.
16 And you held this position until 159th of February 1992, Mr. Babic.
17 Later, a few years later, in April 1994, Mr. Babic became the minister of
18 foreign affairs of the RSK government, but that is beyond the time scope
19 of the indictment. But just to give some of the background.
20 Just to summarise, and the Defence or the Prosecution would
21 certainly correct me if my summary is not a correct one, Mr. Babic was
22 very much concerned about the position of the Serb Croats in the area I
23 just mentioned, and for that reason he was involved in the formation of
24 the association of Serbian municipalities of Northern Dalmatia and Lika.
25 In 1990, he became president of that association. The purpose of it was
1 to introduce Serbian regional autonomy in Croatia.
2 This assembly in July 1990 passed a declaration on the sovereignty
3 and autonomy of the Serbian nations in Croatia. The Serbian National
4 Council was established as the executive body of this assembly. This
5 Serbian National Council met for the first time in July 1990 in Knin. In
6 August 1990, Milan Babic contacted Slobodan Milosevic to complain about
7 the treatment of Serbs in the area around Knin, and Milosevic directed
8 Milan Babic to meet with the president of the SFRY, Mr. Borisav Jovic, and
9 such a meeting took place on the 13th of August 1990.
10 Originally, Milan Babic viewed President Milosevic as the leader
11 and the protector of all the ethnic Serbs in Yugoslavia. Milan Babic
12 sought the assistance of Milosevic in protecting the Serb population in
13 Krajina, and he was assured by Milosevic that they would be protected by
14 the JNA. But the trust which Milan Babic had placed in Milosevic was
15 undermined in March 1991 because it turned out that the objectives of
16 Milosevic were not exactly the same as the ones Mr. Babic had in mind.
17 On from that moment, from August 1990, a parallel structure, as it
18 is called in the indictment, started emerging in the Krajina. It
19 comprised members of the Ministry of the Interior of Serbia and the State
20 Security Service of Serbia, the SDS in Croatia, and policemen in the
21 Serbian municipalities in Croatia which ultimately answered directly and
22 exclusively to Slobodan Milosevic.
23 The statement of facts states that Milan Babic was not a member of
24 this parallel structure and had no ability to control their actions.
25 Milan Babic was aware of this parallel structure and shared its goal of
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 creating a state for all Serbs. And although he had different views on
2 the methods and means to obtain the goal of a Serbian state, he provided
3 support to the parallel structure's aim of achieving a state for all Serbs
4 through conflict and force by fail -- through conflict and force. And he
5 did so by failing to publicly speak out against their methods, and by
6 continuing to exercise the duties of his office in participating in the
7 arming of Serbs in Croatia, creating and staffing political and military
8 structures for a separate Serb entity in Croatia, and obtaining finance
9 for these military structures.
10 As far as my reading was not very clear, I emphasise that the
11 support to the parallel structure's aim of achieving a state for all Serbs
12 through conflict and force, this support was provided by failing to
13 publicly speak out against these methods.
14 In December 1990, under the leadership of Milan Babic, the
15 association of municipalities of Northern Dalmatia and Lika became the
16 Serbian Autonomous Region of Krajina. Milan Babic was the leader of this
17 SAO Krajina, and in April 1991, he was formally appointed president of the
18 executive council. In May 1991, he became the prime minister of the SAO
20 Following a nomination by a majority of the temporary executive
21 council of the SAO Krajina, Milan Babic appointed, on the 4th of January
22 1991, Milan Martic to be secretary for internal affairs of the SAO
23 Krajina. Mr. Babic was aware that Mr. Martic was a key figure in the
24 parallel structure. In a later stage, in -- let me first mention that in
25 paragraph 20, the statement of facts says that the government of the SAO
1 Krajina never had any effective control over Martic and the police force
2 in Krajina, and that attempts to remove him were unsuccessful due to the
3 support that Mr. Martic received from Mr. Milosevic and other members of
4 the parallel structure. In March 1991, Babic asked Milosevic what was
5 going on. He was told not to worry and to return to Knin. He was then
6 informed about weapons already being bought, and he was later shown that
7 these weapons had arrived.
8 Milan Babic sought the assistance of Mr. Milosevic in getting
9 professional training for the Krajina police. In March 1991, Mr. Babic
10 endorsed, in his capacity as president of the Knin Municipal Assembly, a
11 decision of the Assembly to completely and permanently separate the Knin
12 Municipality from the Republic of Croatia. Then the statement of facts
13 contains some disagreement on what exactly should be done at that moment,
14 whether the SAO Krajina should join the Republic of Serbia, or rather
15 the -- to join the other Yugoslavian entities at that time in existence.
16 In May 1991, the SAO Krajina Assembly appointed Mr. Milan Martic
17 minister of defence of the SAO Krajina, so it was not Mr. Babic who
18 appointed him but it was with his acquiescence. Mr. Babic was aware that
19 the forces under the command of Milan Martic were engaged in attacks of
20 Croat civilians. The Assembly reappointed Mr. Martic as minister of the
21 interior of the SAO Krajina in June 1991. Since no one was immediately
22 appointed to replace Martic as minister of defence, for a period of time
23 Milan Babic assumed that role.
24 In the beginning of July 1991, we are now coming close to the
25 period covered by the indictment, Mr. Babic signed orders as minister of
1 defence of the SAO Krajina creating TO formations, Territorial Defence
2 formations, within the SAO Krajina and appointing commanders to these
3 formations. Milan Babic issued an order mobilising all staffs and units
4 of the Territorial Defence in the SAO Krajina and as noted previously, on
5 the 1st of August 1991, that's the first day covered by the indictment,
6 Milan Babic issued a decision applying the law on defence of the Republic
7 of Serbia to the SAO Krajina and making himself the commander of the armed
8 forces of the SAO Krajina, including all special-purpose units of the SAO
9 Krajina and of the Territorial Defence of the SAO Krajina.
10 Mr. Babic performed the duties connected with his position. And
11 on the 8th of August, Milan Babic appointed Mile Martic under pressure
12 from Milosevic to be deputy commander of the SAO Krajina Territorial
13 Defence. Mr. Babic also signed orders creating TO formations, Territorial
14 Defence formations, and appointing Territorial Defence commanders
15 throughout the territory. After a short description of what happened
16 in -- on from September 1991, the statement of facts continue that
17 Milan Babic became aware -- where he was already aware of the plans of the
18 other joint criminal enterprise members regarding the forcible removal of
19 the Bosnian Muslims, but at least that from August 1991 following the
20 attack on Kijevo, Mr. Babic became aware that the JNA and the parallel
21 structure were not protecting the Serbs in Croatia, but were, along with
22 local Serb Territorial Defence forces in the Krajina and with Martic's
23 police, engaged in a war for territory to create the western borders of a
24 new Serbian state. He saw that the creation of a Serbian state would
25 include the forcible, permanent removal of the non-Serb populations from
1 Serb-dominated areas of Croatia through a discriminatory campaign of
3 And this war, to create a Serbian state, was the basis of the
4 joint criminal enterprise described in the indictment whose purpose was
5 the permanent, forcible removal of the majority of Croats and other
6 non-Serb population from approximately one-third of the territory of the
7 Republic of Croatia in order to make it part of the new Serb-dominated
9 Mr. Babic became aware that this Serbian state was being created
10 and maintained through the ethnic resettlement of the Croat and other
11 non-Serb population within the Serb-dominated areas of Croatia. And
12 although he had different views on the appropriate methods and means to
13 obtain the goal of a Serbian state, he continued to cooperate and support
14 those who sought to execute this plan with violent means. From August
15 1991, Milan Babic was aware of the intent of the members of the joint
16 criminal enterprise to forcibly resettle the Croatian and other non-Serb
17 populations within the targeted areas.
18 While he favoured a peaceful solution to the crisis, he knowingly
19 and intentionally participated in the common design involving the
20 perpetration of the crimes of persecutions as he, according to the
21 statement of facts, himself put it, he became an ethnic egoist, a person
22 who exclusively wanted to see the interests of people to which he belonged
23 while he neglected the interests and suffering of the other peoples, at
24 the time, the Croatian people.
25 The statement of facts then continues stating persons who
1 participated in the joint criminal enterprise including
2 Slobodan Milosevic, Milan Martic, Goran Hadzic, Jovica Stanisic,
3 Vojislav Seselj, and Ratko Mladic. This is not a complete enumeration,
4 but I mentioned a few of them. In paragraph 33 of the statement of facts,
5 it's set out in more detail in what ways Mr. Babic participated in this
6 joint criminal enterprise. First, in his capacity as the president of the
7 SNC and later as president and prime minister of the SAO Krajina in the
8 area of RSK, he formulated, he promoted, he participated in and encouraged
9 the development and implementation of the SDS and SAO Krajina RSK
10 government policies which advanced the objective of the joint criminal
12 He was instrumental in the establishment, the support, and the
13 maintenance of government bodies ruling the SAO Krajina which, in
14 cooperation with the JNA and the parallel power structure, implemented the
15 objectives of the joint criminal enterprise and participated in the
16 commission of crimes listed in the indictment. As already said before, he
17 was also de jure commander of the Territorial Defence forces. And
18 although he did not endorse Mile Martic's methods and criminality, and
19 also did not share his state of mind with respect to ethnic cleansing,
20 Mr. Babic nevertheless cooperated with Milan Martic which led to Martic's
21 command and control over what is called the Martic police involved in the
22 commission of crimes. When in the summer of 1991 Milan Babic tried to get
23 control over Martic's police, he had no success in doing so.
24 He also participated in the provision of financial, materiel,
25 logistical, and political support necessary for the military takeover of
1 the territories in the SAO Krajina, which resulted in the subsequent
2 forcible removal of the Croat and other non-Serb population by the
3 Territorial Defence forces, which acted in cooperation with the JNA and
4 with Martic's police.
5 He made ethnically-based inflammatory speeches during public
6 events and in the media that added to the atmosphere of fear and hatred
7 among Serbs living in Croatia, and as such, helped form the opinion of the
8 public that Serbs could only be safe in a state of their own. He
9 requested the assistance of, or he facilitated the participation of JNA
10 forces to establish and maintain the SAO Krajina furthering the objective
11 of the joint criminal enterprise. And he encouraged and assisted in the
12 acquisition of arms and the distribution to Croatian Serbs to further the
13 objective of the joint criminal enterprise.
14 What, then, happened is described in more detail, the campaign of
15 persecutions in the paragraphs 13 to 15 of the indictment. While
16 Mr. Babic was aware that crimes such as imprisonment mentioned in 15(b),
17 deportation and forcible transfer as we find it in paragraph 15(c) of the
18 indictment, and the destruction of property, 15(d), as described in the
19 indictment were being committed in the targeted territories, he did not
20 know the details and the scale of the events that were occurring in the
21 villages throughout the targeted areas at the time.
22 However, he knew from what he observed that the crimes listed in
23 the indictment were the likely outcome of the pursuit of the objective of
24 the joint criminal enterprise and the campaign of persecutions. At the
25 end of 1991 and the beginning of 1992, in relation to the imprisonment, he
1 took steps to alleviate the problems by appointing provisional prison
2 staff. With respect to the murders charged in paragraph 15(a) of the
3 indictment, Milan Babic did not know they were occurring at the time, but
4 knew from what he observed that such killings were the likely outcome of
5 the pursuit of the objective of the joint criminal enterprise and the
6 campaign of persecutions.
7 This is, although in some respects summarised and some respects
8 literally, the content of the statement of facts underlying the plea
9 agreement, would any of the parties have any additions to make or
10 corrections to make as to this summary?
11 MS. UERTZ-RETZLAFF: No, Your Honour.
12 MR. MUELLER: No, Your Honours.
13 JUDGE ORIE: Thank you.
14 Having gone through the factual basis of the agreement, I'll just
15 briefly mention a few other elements of the plea agreement. Mr. Babic
16 agrees to cooperate fully with the Office of the Prosecution and has
17 cooperated already. He agrees to testify in other cases and to meet with
18 the Prosecution. He also committed himself to the truthfulness of
19 whatever information and testimony he will provide.
20 Mr. Babic, the plea agreement also says that you understand that
21 the maximum sentence that can be imposed by a Trial Chamber for a guilty
22 plea to the charge of persecutions is a term of imprisonment up to and
23 including the remainder of your life. You also understand that pursuant
24 to Rule 62 ter (B), the Trial Chamber, as already indicated before, is not
25 bound by any agreement between you and the Office of the Prosecution. You
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 also committed yourself to not withdrawing your guilty plea to or appeal
2 your conviction pursuant to this guilty plea. But you reserved your right
3 to appeal against sentence imposed if it comes to that.
4 The plea agreement, I further say, is what will guide the Chamber
5 in imposing sentence, and you have a full understanding of that. You also
6 understand that the parties will provide information to the Chamber in
7 respect of sentencing. You waived, you gave up some rights as well.
8 First of all, the right to plead not guilty, which hardly needs to be said
9 if you committed yourself to plead guilty because you can't do both of
10 them. Of course, it influences your position, that would be different at
11 trial, where you would have the facility to prepare and put forward your
12 defence; that you would be tried without undue delay in your presence;
13 that you would have the right to examine witnesses or have them examined;
14 that, of course, you waived the right not to be compelled to testify
15 against yourself because you, in pleading guilty, you admit your guilt;
16 and that you gave up the right of appeal.
17 Finally, the plea agreement says that you voluntarily entered into
18 this agreement, and therefore if you would plead guilty, that it would be
19 a voluntary plea; that no threats were made to you to induce you to enter
20 this guilty plea; and that no other promises have been given to you apart
21 from the ones mentioned in the plea agreement. You have signed this plea
22 agreement. May I ask you whether you fully understood what your
23 commitments are? It has been confirmed already by your signature and by
24 Defence counsel, but the Chamber would like to hear from yourself as well
25 whether you are fully aware of what you signed to and what the
1 consequences may be.
2 THE ACCUSED: [Interpretation] Your Honour, I am aware.
3 JUDGE ORIE: You're also aware of what moved the parties to enter
4 into this new plea agreement and what the difference is between aiding and
5 abetting, and that the Chamber had, as a provisional view, that in the
6 earlier plea agreement there was some inconsistency as to the legal
7 qualification of the facts mentioned in the statement of facts in
8 qualifying this as aiding and abetting to the joint criminal enterprise
9 rather than as participation in a joint criminal enterprise.
10 THE ACCUSED: [Interpretation] Yes.
11 JUDGE ORIE: I take it that this was further explained to you by
12 counsel, and that you understood their explanation.
13 THE ACCUSED: [Interpretation] Yes.
14 JUDGE ORIE: Thank you, Mr. Babic.
15 Having gone in some detail through the plea agreement, I would
16 first like to ask any of the Judges would have any questions in respect of
17 the plea agreement.
18 [Trial Chamber confers]
19 JUDGE ORIE: Yes, Judge El Mahdi has a question for -- I do not
20 know which of the parties. Perhaps both of them.
21 JUDGE EL MAHDI: [Interpretation] Thank you, Mr. President.
22 I have a question for the Prosecution regarding the contents of
23 paragraph 33(d) and paragraph 34. I have to admit that I have a problem
24 in comparing two paragraphs. I will quote paragraph 33(d) for you. [In
25 English] "methods and criminality, nor did he share his state of mind with
1 respect to ethnic cleansing, Milan Babic nevertheless cooperated with
2 Milan Martic." [Interpretation] Up until the last sentence which says as
3 follows: [In English] "And the parallel structure without success, and
4 thereafter he continued to cooperate with them."
5 [Interpretation] My question is the following: Does it not
6 indicate a common intent between Mr. Babic and members of the joint
7 criminal enterprise, among other things, and in particular, Mr. Martic?
8 To be precise, I do not see a cooperation without a common intent.
9 MS. UERTZ-RETZLAFF: Your Honour, the Prosecution made a clear
10 distinction between various members of the JCE in this document and
11 throughout the proceedings in this case and other related cases. What we
12 say clearly in paragraph 30 is that Mr. Babic knowingly and intentionally
13 participated in the common design involving the perpetration of the crime
14 of persecution, but the intent of Mr. -- or rather, the methods of
15 Milan Martic were quite different from what Mr. Babic shared and endorsed
16 because it goes further than other members of the JCE went, because
17 Mr. Milan Martic not only wanted to forcibly remove the majority of the
18 Croat population and non-Serb population in those territories; he went
19 much further than that because what he was engaged in was a persecution
20 campaign, including the murders and the really extensive destruction and
21 the extensive mistreatment of detainees and the extensive forcible removal
22 of the population that Mr. Babic did not even know the exact details of,
23 as you can see in paragraph 34.
24 We clearly wanted to make a distinction between the state of mind
25 of Mr. Martic and the state of mind of Mr. Babic.
1 JUDGE EL MAHDI: [Interpretation] Very well. But can you further
2 elaborate, what was the exact intent of Mr. Babic? Did he have, yes or
3 no, the intent to commit persecutions?
4 MS. UERTZ-RETZLAFF: Yes, Your Honour, he did. He did from August
5 1991 onwards, when he saw what was going on and he continued to
6 participate with other members of the JCE.
7 JUDGE EL MAHDI: [Interpretation] Thank you.
8 This position, is it shared by the Defence as well?
9 MR. MUELLER: Your Honour, it's shared with the Defence. It can't
10 be expressed any clearer as by the representative of the Prosecutor.
11 JUDGE EL MAHDI: [Interpretation] Thank you, Mr. President.
12 JUDGE ORIE: I would have a few questions as well. May I draw to
13 your attention paragraph 34 of the statement of facts. On the end, on the
14 bottom of page 13, English version, it says: "With respect to the murders
15 charged in paragraph 15(a) of the indictment, Milan Babic did not know
16 they were occurring at the time. But knew from what he observed that such
17 killings were the likely outcome of the pursuit of the objective of the
18 joint criminal enterprise in the campaign of persecutions."
19 I do understand this to be a reference in legally technical terms
20 to what I would call the type 3 joint criminal enterprise where other
21 members of the joint criminal enterprise commit acts even beyond what was
22 the shared design. But I have a more factual question. It reads: "Milan
23 Babic did not know" -- these were the murders -- "they were occurring at
24 the time." How does the Chamber have to understand this? That, for
25 example, if a murder or murders were committed in October 1991, that
1 Mr. Babic did not know at that moment, well, let's say on that day, that
2 these murders were committed? Or does it also mean that Mr. Babic would
3 not know about these murders even in early November or mid-November when
4 perhaps other murders were committed which he was not aware of, of them
5 being committed at that time, but knowing that murders had been, for
6 example, committed in October?
7 MR. FOGELNEST: It's the latter, Your Honour.
8 JUDGE ORIE: So he later on -- let me just...
9 So he never heard, he never knew about any of the murders listed
10 in 15(a) which are considerable numbers of people killed in at least not
11 individual incidents. I see in 15(a), I see the killing of 56 people on
12 the 21st of October 1991; other 30 civilians, 24 civilians. I see 7
13 civilians killed in Lipovaca on the 28th of October. I see 10 civilians
14 killed in the hamlet of Vukovici near Poljanak; 29 civilians killed in the
15 village of Saborsko on the 12th of November. On the 18th of November, 38
16 non-Serb civilians killed in Skabrnja. Do I have to understand that
17 Mr. Babic, during the indictment period, got no knowledge of these
18 killings, or that he did not have knowledge of these killings while they
19 were committed but perhaps may have obtained knowledge of them at a later
20 stage, let's say one week after that or a month after that? I try to
21 understand what exactly means "at the time."
22 MS. UERTZ-RETZLAFF: Your Honours, Mr. Babic in his extensive
23 interviews was asked, always mentioned that he learned about the details
24 of these murders as you have referred to years later, not at the time.
25 JUDGE ORIE: Yes, details.
1 MS. UERTZ-RETZLAFF: But that they occurred.
2 JUDGE ORIE: That they occurred.
3 MS. UERTZ-RETZLAFF: Yes.
4 JUDGE ORIE: So Mr. Babic was not aware of any killings occurring
5 in the campaign of forcible removal of non-Serb -- non-Serb members of
6 these villages.
7 MS. UERTZ-RETZLAFF: Your Honours, I would make a distinction
8 between killings and murders.
9 JUDGE ORIE: Yes.
10 MS. UERTZ-RETZLAFF: Of course, when there is a war ongoing and
11 when these attacks occur on the population, he of course knew about people
12 dying in these villages, or in the territory. But he was not aware of the
14 JUDGE ORIE: Yes.
15 MS. UERTZ-RETZLAFF: As described here.
16 JUDGE ORIE: You mean by killing including civilians that were
17 killed during the attacks, or when you're referring to killings are you
18 only referring to, I would say, combatants or...?
19 MS. UERTZ-RETZLAFF: No, I'm referring to both.
20 JUDGE ORIE: To both. So I properly understand that Mr. Babic was
21 aware of civilians killed during these attacks just as combatants were
22 killed, not knowing, however, on murders, and I do understand that when
23 speaking about murder you refer then to, I would say, these executions,
24 more or less, of numbers of people driven together, and that he only
25 learned about that at a later stage, at least not within the time covered
1 by the indictment.
2 MS. UERTZ-RETZLAFF: This is my understanding, Your Honour.
3 JUDGE ORIE: May I seek confirmation from the Defence.
4 MR. MUELLER: Yes, this is also the understanding, Your Honours,
5 as the Defence look at it. What we learned from our information from the
7 JUDGE ORIE: Yes. Is there any other source apart from the
8 statement of Mr. Babic given during his interviews of the absence of his
9 knowledge, and is there any source that would support a more general
10 knowledge, for example, by newspapers or television reports on the
11 occurrence of these murders?
12 MS. UERTZ-RETZLAFF: Your Honours, not that we are aware of. Of
13 course, we put this to Mr. Babic, that from the media he would have
14 knowledge in general terms of the matter. But as far as I recall, he said
15 he was not in a position to receive this neutral media at the time.
16 JUDGE ORIE: Has there been any investigation as to whether only
17 the, what you call, neutral media, although I have become aware in this
18 Tribunal that it's not easy to find neutral media, whether any local media
19 paid attention to it, whether any local newspapers paid attention to it?
20 MS. UERTZ-RETZLAFF: Your Honour, what we, of course, found is
21 that the Croatian media reported about these events. At the same time the
22 Serbian media reported the absolute contrary to what the Croats were
23 reporting, and we could not establish whether Mr. Babic received such
24 information. And we also could not establish that Mr. Babic read, for
25 instance, international media at the time.
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 JUDGE ORIE: Yes. Is there anything to add to this on the side of
2 the Defence?
3 MR. MUELLER: A little fact: When I remember correctly, Mr. Babic
4 stated in the course of his interviews, and please correct me if I'm
5 wrong, that at that time it was impossible to receive other TV programmes
6 than the Serb ones.
7 JUDGE ORIE: They could even not receive Croatian television?
8 MR. MUELLER: No. That's what I understood. In that area he was
10 JUDGE ORIE: Yes. Thank you for your answers in that respect.
11 MR. FOGELNEST: Your Honour, may I offer an additional piece of
12 information to the Court. I would invite the Trial Chamber's attention
13 to, I believe it's de la Brosse's report. The Prosecutor commissioned a
14 report to be done by a professor in Rheims which explains the propaganda
15 campaign that was being conducted by both Belgrade in large part and
16 Croatia. So it was very difficult for anyone to evaluate what the truth
17 was under any circumstances. I think the Court would find that quite
18 enlightening if you've not already had an opportunity to review it.
19 JUDGE ORIE: Yes, would the parties be willing to provide this to
20 the Chamber.
21 MS. UERTZ-RETZLAFF: Yes, Your Honour, we have this report. It
22 was filed in the Milosevic case.
23 JUDGE ORIE: If it could be a joint filing by the parties.
24 I have one other question about the inflammatory speeches. Are
25 texts available of these speeches?
1 MS. UERTZ-RETZLAFF: Yes, Your Honour.
2 JUDGE ORIE: Could the Chamber receive copies of two extremes;
3 that is, one in which Mr. Babic used the, I would say, the strongest
4 language, and another one where he was mildest.
5 MS. UERTZ-RETZLAFF: Yes, we will look for it, Your Honours.
6 JUDGE ORIE: Perhaps the parties could agree upon what was the
7 strongest one and what was the mildest one. If you have any doubt, you
8 could also provide one or two others so as to make it for the Chamber to
9 decide what was the strongest one. So we want to -- we would like to see
10 the both extremes of these speeches.
11 MS. UERTZ-RETZLAFF: Yes, Your Honour.
12 JUDGE ORIE: I have no further questions at this moment in
13 relation to the statement of facts, neither do I have any further
14 questions in relation to the plea agreement as a whole.
15 [Trial Chamber confers]
16 JUDGE ORIE: Then we have come to a point where I'd would like to
17 invite the accused to plead. And from the plea agreement, I understand
18 that perhaps we should limit the invitation to plead to count 1. Since
19 there will be changes in the indictment anyhow, I think that we
20 should -- I'd like to hear exactly from the Prosecution and Defence what
21 will be the formulation of the count on which Mr. Babic intends to plead
22 guilty. I mean, I don't think it's of great use to read all the rest of
23 the indictment at this very moment since changes not yet known in detail
24 will be made at a later stage. But I would like at least to know for sure
25 what is the exact formulation of the count.
1 As I read it up till this moment in the indictment, let me just
2 take it, it is: "Persecutions on political, racial, and religious
3 grounds, a crime against humanity, punishable under Articles 5(H) and 7(1)
4 of the Statute of the Tribunal." And I do understand that the plea would
5 then be that he pleads guilty to what I just read, adding "by
6 coperpetratorship in a joint criminal enterprise."
7 Is that a proper understanding of what the charge would be?
8 MS. UERTZ-RETZLAFF: Yes, Your Honour, that would be the charge.
9 And actually, we did not now intend to amend the indictment. As I
10 explained, it's pleaded in the alternative. And as long as he makes clear
11 that he is now pleading guilty to coperpetration instead of aiding and
12 abetting and the other forms as specified in paragraph 4 of the indictment
13 and also paragraph 13, we wouldn't actually file an amended indictment.
14 JUDGE ORIE: Okay, yes. You would just ask leave to drop the
15 remaining charges, the remaining four charges.
16 So then I'll read, then, the -- yes, Mr. Mueller.
17 MR. MUELLER: As you may have already anticipated, Your Honour, I
18 agree with that, and I agree to that addition to the count 1 in the sense
19 you have quoted, Your Honour.
20 JUDGE ORIE: Yes.
21 Mr. Babic, may I invite you to stand. I'll read the first count
22 of the indictment brought against you dated the 6th of November 2003.
23 Persecutions on political, racial, and religious grounds, a crime against
24 humanity, punishable under Articles 5(H), and 7(1) of the Statute of the
25 Tribunal, by participating as a coperpetrator in a joint criminal
1 enterprise. How do you plead to this charge?
2 THE ACCUSED: [Interpretation] Guilty.
3 JUDGE ORIE: Thank you, Mr. Babic. Please be seated.
4 The Trial Chamber records the plea of guilty on count 1.
5 Mr. Mueller.
6 MR. MUELLER: Your Honours, I would kindly ask you for permission
7 that my client would make an additional short statement. Would you accept
8 that, please.
9 JUDGE ORIE: Yes, but I would first like to continue the
10 requirements of the Rules of Procedure and Evidence.
11 MR. MUELLER: As you like.
12 JUDGE ORIE: But I do understand that he would like the
13 opportunity at a later stage to make a short statement.
14 MR. MUELLER: Yes, please.
15 JUDGE ORIE: Mr. Babic, the first thing this Chamber will have to
16 do is to satisfy itself that you have made this plea voluntarily and that
17 no threats or no coercion was exercised. That was also the reason why I
18 went with you through the plea agreement in this respect.
19 The second thing this Chamber has to do to satisfy itself that
20 this plea was informed; that's why we put questions to you specifically on
21 the issue which made the party change the earlier agreement into the new
22 one. The Chamber also has to consider -- to satisfy itself that the plea
23 was not equivocal. And finally, the Chamber has to satisfy itself that a
24 sufficient factual basis for the crime and your participation, that it
25 does exist.
1 In that respect, I'd like to invite the parties to tell the
2 Chamber whether in respect of these questions, these issues on which the
3 Chamber will have to satisfy itself, whether there's any additional
4 submission you'd like to make or to add any piece of evidence which would
5 make it easier for the Chamber to establish that, or there is sufficient
6 factual basis for the plea. Perhaps first I now ask the Defence.
7 MR. MUELLER: There are not. Thank you.
8 JUDGE ORIE: And for the Prosecution.
9 MS. UERTZ-RETZLAFF: Yes, I would like to add something. In the
10 Milosevic indictment, we named Mr. Babic as a member of the JCE, sharing
11 the intent of the other members of the JCE to forcibly remove the non-Serb
12 population from targeted areas. In the contact with him, Mr. Babic,
13 however, made a distinction between himself and the other members of the
14 JCE, stressing that he was, first, not aware of the criminal objective and
15 the means to achieve this objective of the JCE, but only saw what was
16 going on and from what he saw concluded and understood what the objective
17 was. So that is from August 1991. He's not one of those who actually
18 came up with the plan.
19 And he also made clear that he was not in control of the forces
20 conducting the persecution campaign, and the Prosecution found both of his
21 statements correct because we, of course, have investigated the members of
22 the JCE. We have a huge amount of information, and a huge amount of
23 statements and documents that actually confirm this. So his claim is
24 supported. And what you find in the factual basis is actually what we
25 found on the basis on a huge amount of evidence that is not in front of
2 JUDGE ORIE: Yes. I do understand that. The Chamber will not
3 take a decision today. The Chamber will consider whatever has been said
4 here, and the Chamber will take a decision as soon as possible whether
5 this plea is accepted or not and all the subsequent decisions that have to
6 be taken, such as instructing the Registrar to set a day for sentence.
7 Having recorded the plea and having heard the request of the
8 Defence to give an opportunity to Mr. Babic to make a short statement...
9 [Trial Chamber confers]
10 JUDGE ORIE: I give an opportunity now to Mr. Babic to make a
12 THE ACCUSED: [Interpretation] Thank you, Your Honour.
13 I come before this Tribunal with a deep sense of shame and
14 remorse. I have allowed myself to take part in the worst kind of
15 persecution of people simply because they were Croats and not Serbs.
16 Innocent people were persecuted; innocent people were evicted forcibly
17 from their houses; and innocent people were killed. Even I learned what
18 had happened, I kept silent. Even worse, I continued in my office, and I
19 became personally responsible for the inhumane treatment of innocent
21 The regret that I feel is the pain that I have to live for the
22 rest of my life. These crimes and my participation therein can never be
23 justified. I'm speechless when I have to express the depth of my remorse
24 for what I have done and for the effect that my sins have had on the
25 others. I can only hope that by expressing the truth, by admitting to my
1 guilt, and expressing the remorse can serve as an example to those who
2 still mistakenly believe that such inhumane acts can ever be justified.
3 Only truth can give the opportunity for the Serbian people to relieve
4 itself of its collective burden of guilt. Only an admission of guilt on
5 my part makes it possible for me to take responsibility for all the wrongs
6 that I have done.
7 I hope that the remorse that I expressed will make it easier for
8 the others to bear their pain and suffering. I have come to understand
9 that enmity and division can never make it easier for us to live. I have
10 come to understand that our -- the fact that we all belong to the same
11 human race is more important than any differences, and I have come to
12 understand that only through friendship and confidence we can live
13 together in peace and friendship, and thus make it possible for our
14 children to live in a better world.
15 I have asked help from God to make it easier for me to repent, and
16 I am thankful to God for making it possible for me to express my
17 repentance. I ask from my brothers, Croats, to forgive us, their brother
18 Serbs, and I pray for the Serb people to turn to the future and to achieve
19 the kind of compassion that will make it possible to forgive the crimes.
20 And lastly, I place myself at the full disposal of this Tribunal
21 and international justice. Thank you very much.
22 JUDGE ORIE: Thank you, Mr. Babic.
23 Is there anything any of the parties would like to raise at this
25 MS. UERTZ-RETZLAFF: No, Your Honour.
1 JUDGE ORIE: I see that Mr. Mueller is nodding no. That's always
2 a bit difficult to the transcript. So I expect he doesn't have anything
3 to raise.
4 MR. MUELLER: That's correct.
5 JUDGE ORIE: I am aware that there was some concern between the
6 parties as far as preparing for a possible sentencing hearing is
7 concerned, especially the time frame for presenting presentencing briefs.
8 Since the Chamber has not yet accepted the plea, I find it inappropriate
9 to discuss this at this very moment in this Court. But I invite the
10 parties to bring to the attention of the senior legal officer whatever is
11 in their minds and to discuss with him the matter, which is a very
12 practical matter.
13 Then we stay adjourned, and the Chamber will give a decision on
14 the acceptance of the plea in due course.
15 --- Whereupon the Further Initial Appearance
16 adjourned at 12.34 p.m.