Page 169

1 Friday, 2 April 2004

2 [Sentencing Hearing]

3 [Open session]

4 [The accused entered court]

5 [The witness entered court]

6 --- Upon commencing at 9.04 a.m.

7 JUDGE ORIE: Mr. Usher, could you please call the case.

8 THE REGISTRAR: Good morning, Your Honours. This is Case Number

9 IT-03-72-S, The Prosecutor versus Milan Babic.

10 JUDGE ORIE: Thank you very much, Mr. Usher.

11 Good morning to everyone. And when I say everyone, it's you,

12 Mr. Babic, and just to save myself the question of the appearances to

13 you, Mr. Fogelnest, to you, Mr. Mueller, to you Ms. Uertz-Retzlaff, to

14 you, Mr. Whiting, and to you, Ms. Bauer. Then we have had the

15 appearances for both the Defence and Prosecution. And of course, to you,

16 Mr. Kovacevic, as a witness who came back, and to who I would like -- I

17 would like to remind you that you are still bound by the solemn

18 declaration you've given yesterday.

19 There might be still a few questions for you. Ms. Uertz-Retzlaff,

20 at least you indicated yesterday you had at least one question. I'm not

21 saying this is the last question. But please proceed.

22 MS. UERTZ-RETZLAFF: Yes, Your Honour, it's not only one

23 question, it's actually one issue, the one raised by you yourself.


25 [Witness answered through interpreter]

Page 170

1 Examined by Ms. Uertz-Retzlaff: [Continued]

2 Q. Mr. Kovacevic, when Your Honour Judge Orie asked you yesterday

3 about your knowledge about Croatian victims at the time, you said

4 yesterday that there were rumours at that time to this effect, and that

5 you saw such information on the Croatian electronic media. Does that

6 mean TV?

7 A. What I meant was including television. However, I have to say

8 that the reception was poor, however there was TV reception.

9 If you will allow me, there is one matter that is quite important

10 here; namely, at the time, there was a major propaganda war going on

11 between the Croatian and Serbian media. And it was difficult to discern

12 what was the truth and what wasn't. There were a lot of rumours. And if

13 you followed the media, then it was very difficult for you to determine

14 whether they were just giving you facts or explaining the facts or

15 muddling the water, so to say. So I think that these elements of the

16 propaganda war should be borne in mind. It was very difficult to know at

17 the time what was the truth and what wasn't, of the material that was

18 broadcast. I think that needs to be known.

19 Q. Yes, thank you. You also mentioned that later, on the

20 coverage -- later on, the coverage was rather realistic, and you in

21 particular referred to refugees speaking in front of cameras. Are you

22 referring to Croatian refugees speaking about -- before Croatian TV

23 cameras?

24 A. Yes. These are the refugees that I have referred to. Yes.

25 Q. And when you said later on, the coverage was rather realistic,

Page 171

1 what time do you refer then to? What is "later on"?

2 A. Later on, when things became more focussed and more clear, then

3 some of the material was true and was realistic, some of the material.

4 So once the situation became such that one could discern what was

5 propaganda and what was the actual reporting, we could see that there

6 were some realistic reports then.

7 Q. My question was to which time period do you refer, to which year?

8 A. It is very difficult for me to pinpoint it now, but I was

9 referring to the entire time that the conflict was going on. For

10 example, Croatian media always reported about Vukovar, civilian victims,

11 and refugees fleeing Krajina sometime in 1991. So throughout the

12 conflict, one could see that under the circumstances that I have already

13 described to you. Now, to give you the exact time period, whether that

14 was right at the time when the events were unfolding or whether it was

15 later on, I really couldn't tell you accurately.

16 Q. Now, let me ask you some specifics about the contents of this

17 reporting. And I'm aware that it's very difficult after so much time.

18 To assist you, I would like to refer you to the visit that you mentioned

19 with Mr. Babic to Kostajnica in 1995 and where you heard about the

20 particular murders in that region. And first of all, these murders in

21 villages that you mentioned, does it refer to the villages Bacin, Dubica,

22 and Cerovljani?

23 A. Yes, most likely it involves these villages, the villages in the

24 area surrounding Kostajnica and Dubica.

25 Q. And this information that you got there on this wedding

Page 172

1 celebration in 1995, was this new to you, too, or only to Mr. Babic?

2 A. I must say that it was new for me, too. It was new for me as

3 well because I didn't know about that before. I didn't see these things

4 reported in the media.

5 Q. And in relation to murders committed in Skabrnja and Nadin, do

6 you recall any media reports from Croatia on that issue? At that time, I

7 mean, in 1991.

8 A. I watched a report on Croatian television. Now, it's difficult

9 for me to say whether it was in 1991 or 1992. I remember that in that

10 report, they described how the victims were brought to the town of Zadar

11 and turned over to their families. There was a report that I remember,

12 but I really couldn't tell you whether it was in late 1991 or already in

13 1992. But there was such a report on television, yes.

14 Q. And do you recall any TV coverage in relation to murders in --

15 JUDGE ORIE: May I interrupt you, Ms. Uertz-Retzlaff. I think

16 the issue that has been raised is whether Mr. Babic had knowledge of

17 murders.


19 JUDGE ORIE: If we look at the agreed facts underlying the plea

20 agreement, we see that there's a clear denial that at the time he knew

21 about murders to take place. What's the relevance of knowing exactly

22 whether a specific murder had been shown on television? I think the main

23 element of the testimony of this witness is that murders, in whatever

24 villages, were shown on television, on Croatian television. And I wonder

25 what the relevance is to go through all detail, say was this murder shown

Page 173

1 on television, was that murder shown on television? So unless you could

2 tell us what the relevance of that instead of keeping to the main line, I

3 wonder whether we should continue.

4 MS. UERTZ-RETZLAFF: Your Honour, I can tell you the relevance,

5 why I ask these questions. But I rather would not do it in front of the

6 witness.

7 JUDGE ORIE: Then let's ask the witness -- Mr. Kovacevic, I

8 regret that I have to ask you to leave this courtroom just for a while in

9 order to have a legal matter discussed. The usher will escort you. Yes.

10 It's just for the witness, I take it, to leave.

11 MS. UERTZ-RETZLAFF: Yes, just for the witness.

12 Your Honours, yesterday when we became aware that it would be an

13 important issue, what was reported in the media and what the witness saw

14 and what we assume Mr. Babic may have the possibility to see as well, we

15 actually checked what Mr. Babic said during the interview --


17 MS. UERTZ-RETZLAFF: -- about the murders and about his knowledge

18 of this, and about his access to the media. And Ms. Bauer actually

19 checked the entire -- searched the entire transcript, at 1.200 pages.

20 She may have overlooked something, but with the keywords, she should have

21 actually got all the references. And what we found out is that Mr. Babic

22 during the interview was asked about these specific murders, and he

23 actually denied to have known about this at that time.


25 MS. UERTZ-RETZLAFF: And he explained to us when he heard details

Page 174

1 of these murders -- and it's, for instance, a wedding that the witness

2 mentioned. It is other information that he got from the witness at a

3 later date, and also from another person. We also checked where he

4 mentioned the media, and we found no reference where the witness denied

5 to have -- the witness, sorry. Mr. Babic denied to have access to the

6 Croatian media. This was something that Mr. Mueller declared

7 unfortunately, I must say now, declared during the initial appearance,

8 but we have no such reference from Mr. Babic himself.

9 What we have, indeed, is actually a comment of Mr. Babic to the

10 contrary in his interview, video 000376, tape 2 of 14, page 6 to page 8.

11 He makes references to general knowledge, what he heard about, and he

12 mentioned particularly the Serbian media and the Croatian media, that

13 they at the same time were reporting contrary.

14 It says here in particular: "On the other hand, the Croatian

15 media always said that this was the Serbs, the Chetniks." So it seems

16 from this quote, in particular because it's a quote following a

17 discussion about the events in Kijevo that Mr. Babic did see Croatian

18 media and Mr. Mueller had an error.

19 And what I wanted to establish actually with the witness, and

20 this is why I asked him so particularly, whether reporting about these

21 particular murders were in the media at the time because it seems to me

22 that Mr. Babic did not actually claim he had an access to Croatian media.

23 JUDGE ORIE: Yes. I think in the agreed facts, it doesn't say

24 anything on whether Mr. Babic had access to the media, as far as I

25 remember. It does, however, say clearly that Mr. Babic had at the time

Page 175

1 no knowledge of the murders. So I now understand that what seems to be

2 the case is that Mr. Babic had access to the media, even noticed that

3 there was a contradiction between the reports in the Serbian and in the

4 Croatian media and -- well, if he had no knowledge of the murders, that

5 means that he has not clarified it at that moment in his position. And

6 that, of course, the lack of knowledge of murders gets a -- perhaps a

7 slightly different colour if this is the factual background on which

8 the -- this agreed fact is based.

9 MS. UERTZ-RETZLAFF: Your Honour, let me say something in

10 addition. What Mr. Babic did not deny is that he knew that ethnic

11 cleansing was going on and people were killed. What Mr. Babic denied was

12 that he knew about the murders charged. And this is actually

13 something -- this is actually what I wanted to establish with the

14 witness. I wanted to establish with him what was in the media about the

15 particular murders, and what was the general reporting.

16 And one more point: We did not provide this information to the

17 Trial Chamber because it would -- it was much too wide. We would have

18 too many exhibits from the Milosevic case. But what became clear from

19 the Milosevic case is international complaints, complaints by the

20 Croatian government, or complaints by the ECMM reporters were always

21 directed to either the president of Serbia, Mr. Milosevic; to Mr. Jovic,

22 from the presidency of Yugoslavia at that time; or the JNA Generals

23 Adzic, Kadijevic, or Raseta, and those complaints were not directed to

24 the government of the so-called SAO Krajina because the internationals

25 and also Croatia simply ignored the existence of this entity. So this is

Page 176

1 also something that let us believe that Mr. Babic did tell us the truth.

2 JUDGE ORIE: Yes. So I have to read page 13 of the annex to the

3 plea agreement; that's the factual statement where it reads: "With

4 respect to the murders charged in paragraph 15 (a) of the indictment,

5 Milan Babic did not know they were occurring at the time, but knew from

6 what he observed that such killings were the likely outcome of the

7 pursuit of the objective of the joint criminal enterprise and the

8 campaign of persecutions."

9 That is not exactly language which confirms his knowledge of

10 other killings to take place, apart from those charged in paragraph 15

11 (a) of the indictment. But if it is common understanding between

12 Prosecution and Defence that although Mr. Babic did not know at that time

13 of the murders as charged in paragraph 15 (a), but that he was aware that

14 noncombatants were killed -- well, let's say civilians were killed -- in

15 the course of the ethnic cleansing, in the forceful removal -- forcible

16 removal of civilians from the area, that at least clarifies an issue that

17 appears on page 13.

18 As I have expressed it now, is that common understanding between

19 the parties?

20 MS. UERTZ-RETZLAFF: This is the understanding of the

21 Prosecution.

22 JUDGE ORIE: Of the Prosecution. And then --

23 MR. MUELLER: This is also the understanding of the Defence, and

24 it always was.

25 JUDGE ORIE: Yes. Then either we have not read carefully the

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13 English transcripts.













Page 178

1 text, because I only saw that Mr. Babic knew that such killings were the

2 likely outcome of, which is not the same as that he knew that killings

3 were committed in the course of. It's not exactly the same. So if any

4 of the parties could tell me exactly where I find in the agreed facts

5 that he knew about killings to take place. Yes.

6 MS. UERTZ-RETZLAFF: Your Honours, I thought we would make it --

7 it was clear in the agreed fact, that we made clear that he didn't know

8 about the murders, but we did of course not make any more references to

9 other killings because it's not really specified in the indictment. So

10 we made a special reference to these murders in the indictment.


12 MS. UERTZ-RETZLAFF: But not any further reference to other

13 killings.

14 JUDGE ORIE: Let me now turn to the indictment.

15 MS. UERTZ-RETZLAFF: Your Honours, in count 1, the charges in

16 paragraph 15, we make the reference to the killings of Croats and

17 non-Serbs, and actually what follows then is the list of the murders that

18 we have particularly charged.

19 JUDGE ORIE: Yes. So what you say is that these murders he

20 didn't know about, but he was aware of civilians being killed other

21 places, but in the framework of the same ethnic cleansing.

22 MS. UERTZ-RETZLAFF: Yes, Your Honour.

23 JUDGE ORIE: That's the understanding of both parties.

24 MR. MUELLER: I'm very sorry.

25 JUDGE ORIE: So I do understand that it is denied that Mr. Babic

Page 179

1 knew about the murders listed in paragraph 15 (a), and then under 1 until

2 4, where numbers and specific situations are described, but that he was

3 aware that civilians were killed elsewhere -- I would say in the course

4 of the same ethnic cleansing, but not specifically on these places and

5 these times.

6 MR. MUELLER: Correct, Your Honour.


8 MS. UERTZ-RETZLAFF: And perhaps one additional remark: How I

9 understood the situation and the knowledge of Mr. Babic. As we see from

10 his statement, this intensive statement, he actually was aware that

11 people were killed, civilians were killed, but his view was that they

12 were killed during the attack as such, and not executed, or murdered,

13 after the attack. That's the difference. He made clear that he was

14 aware that people were killed, civilians were killed during the attack,

15 but he did not know they were deliberately murdered as charged in these

16 murder counts that are detailed in the indictment. That's a difference.

17 JUDGE ORIE: Yes. It's to some extent clear. Is this to be

18 understood, that Mr. Babic was aware that civilians were killed as

19 collateral damage to justified military action? Or was -- I mean, you

20 can kill -- it sounds very horrible. But you can kill civilians in two

21 different ways; either by using wrong military equipment for an attack

22 not targeting precisely, and thus killing civilians as -- not as

23 collateral damage but more or less as a consequence of improper military

24 action; and of course, you can also save the lives of the civilians

25 during the attack, and then kill them afterwards.

Page 180

1 Is the understanding that the death of these civilians was

2 collateral damage in justified military action, or was it just shooting

3 at a village where civilians were living, destroying their houses and

4 killing the inhabitants at the same time?

5 MS. UERTZ-RETZLAFF: It is the understanding of the Prosecution,

6 and I assume Mr. Mueller would share it with us, that Mr. Babic was very

7 clear saying it was not legitimate military actions, but ethnic cleansing

8 campaign in an attack that was actually illegal. And in the course of

9 this attack, civilians were killed.

10 JUDGE ORIE: Mr. Mueller, is that --

11 MR. MUELLER: Your Honour, this is correct. The reason why I'm

12 standing is something completely different. I just realised in the

13 transcript that the names are mixed up. Whether I'm quoted, it's quoted

14 as Mr. Fogelnest. I'm Mr. Mueller. I'm sorry.


16 MR. MUELLER: Just for the record. Thank you.

17 JUDGE ORIE: If anyone would later like to check on the

18 videotapes who was speaking, and of course it will be corrected to the

19 extent possible, then let me now make it clear that the one with the more

20 grey hair is Mr. Mueller, and the one with the less grey hair is

21 Mr. Fogelnest.

22 MR. FOGELNEST: While I would be delighted to have Mr. Mueller

23 comments attributed to me, I can understand his consternation in not

24 wanting mine attributed to him.

25 JUDGE ORIE: Yes, let's get back to this. I think this has

Page 181

1 clarified a lot for the Chamber. Let me just check whether my colleagues

2 have the same view.

3 [Trial Chamber confers]

4 JUDGE ORIE: I think as a matter of fact the Chamber better

5 understands now the factual basis for the plea agreement, and -- although

6 it has surprised me a bit that in the examination of the witness some of

7 the agreed facts came back where I expected them to be settled. But now

8 it turns out to be a good thing, since it has clarified some issues in

9 the factual basis for the plea agreement. And I don't think that we need

10 to ask any further questions to the witness about this specific aspect,

11 it having been clarified.

12 MS. UERTZ-RETZLAFF: No, Your Honour. I agree.

13 JUDGE ORIE: Mr. Usher, could you please escort the witness back

14 into the courtroom.

15 We had to clarify, Mr. Kovacevic, a certain issue. We have

16 clarified it, so there is no need to ask you any further questions on the

17 issue of what was visible in 1991 on television and what was not.

18 I have, however, another question for you. And that is about the

19 word you used yesterday, the word "Zupan." You told us that you heard

20 this word to be used twice, as I said, against Mr. Babic. This word

21 Zupan, did you ever hear it used in the sentence you gave to this word

22 yesterday before, in other circumstances, not related to Mr. Babic?

23 THE WITNESS: [Interpretation] Your Honour, I have to clarify. I

24 can't give you a one-sentence answer. The word Zupan, under the

25 circumstances, meant traitor, a traitor of national interest because its

Page 182

1 meaning derives from the fact that the Republic of Croatia determined its

2 territorial organisations by establishing counties as administrative

3 units. And a Zupan or a prefect is somebody who is the head of this

4 administrative unit in Croatia.

5 THE INTERPRETER: The word in Croatian is zupanija [phoen].

6 THE WITNESS: [Interpretation] In this specific case, the use of

7 this term did not mean prefect; it meant traitor. It was a derogatory

8 word which described the person who would be referred by such a name in

9 Krajina. This word was addressed to Mr. Babic as a political figure, as

10 somebody who was prepared to be an official or a civil servant in the

11 Croatian state. And this is the way it should have been construed or

12 understood.

13 JUDGE ORIE: Yes. I do understand on what basis you gave this

14 interpretation to this word. My question was whether you heard this word

15 being used in this same sense on other occasions than the two times you

16 heard this word used in addressing Mr. Babic.

17 THE WITNESS: [Interpretation] When the negotiations were to take

18 place in Krajina, this word would be used. Yesterday I mentioned two

19 specific cases, one that happened during the first constitutional

20 amendments when a formal proposal was drafted about the constitution and

21 the proposal that the association of municipalities should be treated in

22 a special way. The second time I heard it from Biljana Plavsic. I spoke

23 about that yesterday.

24 Whenever negotiations or talks would be staged, this word would

25 be used. There were cases when pamphlets, special pamphlets would be

Page 183

1 printed, and Mr. Babic would be scolded in a similar way in those

2 pamphlets.

3 JUDGE ORIE: Yes. So you say it was used in writing in a similar

4 way, that word; and it was more or less to express that Mr. Babic was the

5 servant of the Croatian government, being the one in charge in the

6 Croatian county and that this is -- this meaning of this word, did you

7 ever hear that before the conflict, or was it new at that time?

8 THE WITNESS: [Interpretation] This word did not exist before the

9 conflict. This word I heard for the first time at the end of the year

10 1990 when some sort of a conflict was already on. It was still not an

11 armed conflict, but there was a conflict. And if you will allow me, this

12 should have blocked Mr. Babic's attempts to enter a negotiation process

13 or a political process which would lead to political solutions and

14 integration within the state of Croatia.

15 JUDGE ORIE: Thank you for this answer, Mr. Kovacevic.

16 Are there any further questions triggered by the questions of the

17 Bench?

18 MS. UERTZ-RETZLAFF: Not from the Prosecution.

19 JUDGE ORIE: Yes, Mr. Mueller.

20 MR. MUELLER: Defence has no questions, thank you.

21 JUDGE ORIE: Yes. Since there are no more questions from the

22 Bench either, Mr. Kovacevic, I'd like to thank you for having come the

23 far way to The Hague and to testify and to answer the questions of both

24 parties and of the Bench. And I wish you a safe trip home again.

25 Mr. Usher will escort you out of the courtroom.

Page 184

1 Mr. Mueller.

2 [The witness withdrew]

3 MR. MUELLER: Mr. President, I was informed that it was or is

4 regarded as a so-called nobile officio of the Defence to say a few words

5 to the witness after he is escorted out of the room. I was not aware of

6 that fact, so if the Chamber is of the opinion that this is correct,

7 please give me a chance to do so. I would ask for a little break and I

8 should say goodbye and thank you to our witness. If you find this

9 appropriate, because we do not have this happen in Germany.

10 JUDGE ORIE: I must say that it's the first time in this

11 Tribunal --

12 MR. MUELLER: It was told to me. I'm sorry to interrupt. I was

13 also surprised, as you seem to be as well.

14 JUDGE ORIE: Well, being in this Tribunal for two years, a little

15 bit over two years, and having never experienced this, Mr. Mueller, if

16 during the next break you're in a position to say goodbye to the

17 witness, of course you will be able to do so, or send him a small letter

18 later on thanking him for responding to being called.

19 MR. MUELLER: Thank you. The letter is a very good idea.

20 JUDGE ORIE: But I think at this moment, there is no reason to

21 interrupt the hearing.

22 I think we are now at the point where before hearing the closing

23 remarks of the parties, I should give Mr. Babic an opportunity to express

24 himself.

25 Mr. Mueller, Mr. Fogelnest.

Page 185

1 MR. FOGELNEST: Your Honour, may I have an opportunity to consult

2 with him for one moment.

3 JUDGE ORIE: Yes, please. Take your time.

4 MR. FOGELNEST: Thank you.

5 MS. UERTZ-RETZLAFF: Your Honour, may I also raise an

6 administrative matter. You have not yet formally accepted the exhibits

7 of the Prosecution. And we have meanwhile actually the numbered

8 versions.

9 JUDGE ORIE: As a matter of fact, I was more or less waiting for

10 that. And I developed the -- the custom in my Chamber is to always wait

11 for the end because there always happens something. If we would have

12 admitted them yesterday, we would have a new version now. Let's do it at

13 the final end. You never know what is there to come.

14 JUDGE ORIE: Mr. Fogelnest.

15 MR. FOGELNEST: He's ready to proceed.

16 JUDGE ORIE: He's ready to proceed.

17 Mr. Babic, this is the moment for you to address the Chamber.

18 Please proceed.

19 THE ACCUSED: [Interpretation] Your Honours, I can't say anything

20 else but that I'm very sorry for what I did. I've appeared before this

21 Tribunal and I've told the truth, and I believe that this will help to

22 achieve reconciliation among the peoples in the Balkans. I have placed

23 myself at the disposal of this Tribunal believing that this is the only

24 institution that can bring peace to my homeland. I know that some people

25 consider me a traitor; however, I believe that by appearing before this

Page 186












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13 English transcripts.













Page 187

1 Tribunal I serve the best interests of all the people to arrive at the

2 truth. I invite all the others who are aware of the facts of what

3 happened to appear before this Tribunal and tell the truth. The

4 historical truth has to be recorded so that the future generations may

5 learn from our mistakes. Thank you.

6 JUDGE ORIE: Thank you, Mr. Babic.

7 It's not the use in this Tribunal to ask a defendant questions on

8 short statements he gives and I'm not going to break with that custom.

9 But if you would feel that you would like to explain why you did not take

10 the same position in respect of the need to cooperate with the Tribunal

11 before 2001, autumn 2001, if you would like to spend words on that, you

12 have an opportunity to do so.

13 So if it would be put by way of a question, the question would be

14 why in autumn 2001, why, as we read in these sentencing briefs, once you

15 saw your name appearing in an indictment against Mr. Milosevic, and why

16 not at an earlier stage? Why not during five years when you were aware

17 of the existence of the Tribunal and where the historical needs might

18 have been the same?

19 So if you want to express yourself on that, you're free to do so.

20 THE ACCUSED: [Interpretation] Thank you, Your Honour. Let me

21 start by saying before 2001 I didn't dare do so for a simple reason: I

22 lived as a refugee in Serbia. I didn't have any ID. I didn't have a

23 passport. I could not leave the country -- formally, that is. I may

24 have been given an opportunity to leave the country, but I wouldn't know

25 what to do with my family. I was not in a position to talk to the

Page 188

1 Tribunal without mentioning the whole truth that I was aware of, and a

2 lot of that concerned people who were still in power in Serbia.

3 I must say that I was invited at the beginning of 2001 to give a

4 statement with regard to Operation Storm. This statement would have

5 concerned what the state of Croatia did with regard to the expulsion of

6 Serbs from Krajina. But I couldn't do that for the same reason that I

7 have just mentioned. The basic thing that I need to mention is this:

8 There's just one truth. It's an integral truth. It involves all the

9 parties that were involved in the conflict, and I couldn't talk at that

10 time. I could only tell a fragment of the truth, and this is what I can

11 do and didn't want to do. And this is the reason why I didn't come

12 forward sooner.

13 [Trial Chamber confers]

14 JUDGE ORIE: Thank you for having expressed your opinion on that

15 specific issue, Mr. Babic. Please be seated.

16 I think we are now at the point where the Chamber could hear the

17 closing remarks of both parties. Mr. Uertz-Retzlaff, have you got any

18 idea on how much time you would need for your closing remarks?

19 MS. UERTZ-RETZLAFF: Yes, Your Honour. I assume it will be a bit

20 more than an hour.

21 JUDGE ORIE: A little bit more than an hour. And how much time

22 would Defence need together?

23 MR. MUELLER: This question is very difficult for me. I haven't

24 asked my colleague yet, but I could tell you how much I would need.

25 Probably I need about 20 or 25 minutes.

Page 189

1 JUDGE ORIE: Yes, Mr. Fogelnest, on the basis of equality.

2 MR. FOGELNEST: Your Honour, I have not written a speech. I'm

3 more used to working from notes and speaking rather extemporaneously, so

4 that I cannot tell you. I have not timed it. However I think it would

5 be appropriate that between the two of us we did not exceed the time that

6 Ms. Uertz-Retzlaff took, and I will attempt to confine myself within that

7 time period and hope that the Court will be -- I'll try to finish sooner,

8 if the Court will be a bit tolerant and if it runs a few minutes over.

9 JUDGE ORIE: I suggest that we do not start right away, because

10 we might get in trouble since we have to stop at not later 20 minutes to

11 11.00, both in view of tapes and services of the interpreters. That

12 might be too short.

13 So I suggest that we now have a break of 15 minutes, that we

14 start at 5 minutes past 10.00; that you'll then make your closing

15 remarks, Ms. Uertz-Retzlaff; that we then have another short break just

16 after 11.00; and that then the Defence will take another hour for its

17 closing remarks. So that we then could finish at approximately -- let's

18 say quarter past 12.00, not later than 12.30.

19 --- Recess taken at 9.52 a.m.

20 --- On resuming at 10.11 a.m.

21 JUDGE ORIE: Madam Uertz-Retzlaff, you may proceed.

22 MS. UERTZ-RETZLAFF: Thank you.

23 Your Honours, finding a just sentence that is acceptable for the

24 victims of the crimes and their relatives, for the accused, and the

25 public in the former Yugoslavia is an important and difficult task for

Page 190

1 this Trial Chamber.

2 Making recommendations for an appropriate sentence for the

3 accused Milan Babic is a difficult task also for the Prosecution, and in

4 particular for me. About ten years after the crimes, I met Mr. Babic for

5 the first time and worked with him over weeks and weeks in Serbia, and

6 later on here in The Hague. During this time, Mr. Babic gave the

7 impression of a moderate man full of remorse, regretting his

8 participation in the crimes. He has accepted his responsibility, pleaded

9 guilty, and has also provided invaluable evidence about a broad range of

10 issues that will enable the Tribunal as a whole and the Office of the

11 Prosecutor in particular to fulfil its mandate. All this calls for a

12 lesser sentence.

13 Yet Mr. Babic has participated in very serious crimes which

14 caused great suffering for many, many victims.

15 Thus, it is a case that creates a considerable tension between

16 determining the proper punishment for someone responsible for the gravest

17 of crimes, yet someone who has considerably changed after his

18 disassociations from his coperpetrators, and who has taken significant

19 and substantive steps to assist the Prosecution in its investigations and

20 to assist the Trial Chambers to establish the truth and to further

21 reconciliation in the former Yugoslavia.

22 Your Honours, your task is to find a right balance between

23 punishing a perpetrator according to his guilt, while at the same time

24 encouraging other persons similarly situated to the accused to cooperate

25 with the Prosecution and to assist the Trial Chambers in future

Page 191

1 proceedings. I, for my part, have approached this issue carefully, and I

2 have discussed it with the Prosecutor, my colleagues in the trial team,

3 and with other senior members of the OTP.

4 The Prosecution has filed its position in an extensive

5 Prosecution brief. I do not intend to repeat what is already available

6 in writing. Instead, I want to explain why the Prosecution arrived at

7 its recommendation.

8 Yesterday, I saw in the media reports claiming that the

9 Prosecution will ask for 11 years' imprisonment. That is not correct.

10 The Prosecution recommends a sentence below 11 years, and I stress here

11 the word "below."

12 In this Tribunal, we have an increasing amount of guilty pleas.

13 For guidance, I therefore looked at the judgements in these proceedings.

14 I, in particular, looked at the sentencing judgements involving

15 Srebrenica. We have here the Erdemovic judgement, and you may recall

16 Erdemovic, in July 1995, together with a group of seven other soldiers,

17 shot about 1.000 Muslim men. He was convicted to five years'

18 imprisonment. The sentencing Chamber acknowledged that he acted under

19 duress and under order, and that he showed remorse and cooperated

20 substantially with the Prosecution.

21 Obrenovic, chief of staff and deputy commander of the Svornik

22 Brigade in 1995 was the commanding officer during the events in

23 Srebrenica. He took overall responsibility for what happened, but had

24 only very limited involvement in the killing operation itself. He was

25 convicted to 17 years' imprisonment.

Page 192

1 Nikolic, the chief of intelligence and security of the Bratunac

2 Brigade was heavily involved in the implementation and coordination of

3 the killings in Srebrenica. He was convicted to 27 years of

4 imprisonment. Both Obrenovic and Nikolic pleaded guilty, and both

5 cooperated substantially with the Prosecution. Both testified in other

6 cases. However, their cooperation and truthfulness differed in degree.

7 What can be seen from these examples is, firstly, that guilt

8 needs to be looked at individually and can lead to quite different

9 sentences for participation in the same crime; and secondly, that sincere

10 cooperation and truthfulness makes quite a difference in this Tribunal.

11 Further, I looked for guidance to the sentencing judgement for

12 Mrs. Plavsic. She was a member in the same JCE as Mr. Milan Babic. As

13 Mr. Babic, she was not one of the top members within the joint criminal

14 enterprise, and her influence on other members of the JCE was limited.

15 However, on the regional level, she held high office. From February to

16 May 1992, she was acting copresident, and subsequently member of the

17 collective and expanded presidency of Republika Srpska -- a position,

18 actually, not unlike the one Mr. Babic held in the SAO Krajina and the

19 RSK respectively.

20 In her political function, Mrs. Plavsic shared the goal, as

21 Mr. Babic, that is, the common state for all Serbs. She shared the

22 intent of the Bosnian Serb leadership, to remove the non-Serb population

23 from Bosnian territories of this new Serbian state by either agreement or

24 force. After it became clear that the objective could only be achieved

25 with violent means, she significantly assisted the persecution campaign

Page 193

1 that took place in 37 municipalities throughout Bosnia and Herzegovina.

2 As Milan Babic, she did not participate in the conception and planning of

3 this campaign and had a lesser role in its execution.

4 When looking at the events in Bosnia, it cannot be overlooked

5 that the persecution campaign Mrs. Plavsic got involved in was of a

6 different quality and quantity than the one Mr. Babic is responsible for.

7 According to the sentencing judgement and lists attached to the

8 indictment in that case, 59 killing incidents in villages were specified,

9 and 400 detention facilities listed. In 38 of these detention

10 facilities, detainees were murdered. Several thousands of people were

11 killed in the villages, in detention facilities that were specified in

12 the schedules. However, the scale of killing, expulsion, and destruction

13 was much wider.

14 Mrs. Plavsic pleaded guilty and was sentenced to 11 years'

15 imprisonment. The principal mitigating factor mentioned in the judgement

16 were the guilt plea, remorse, voluntary surrender, conduct after the

17 events, and her age. Substantial cooperation was not a relevant factor

18 in the Plavsic case. Neither before nor after the sentencing judgement

19 did she testify before this Tribunal in other cases.

20 The Prosecution is aware that this judgement does not have any

21 binding affect on the sentences to come for the other members of the JCE.

22 Each case in this Tribunal is a unique case. However, the Prosecution

23 looked at the sentence for Mrs. Plavsic as a starting point to arrive at

24 a justified recommendation for Mr. Babic.

25 Let me now turn to the gravity of the crime. Much what can be

Page 194

1 said is articulated in the factual basis and also part of the public

2 record, and we have also clarified today a point. There is no need for

3 me to repeat all this. In addition, my colleague, Mr. Whiting, has made

4 the gravity of the crimes the focus of his yesterday's opening remarks,

5 and I do not intend to address the same details as he did.

6 For the crime for which Mr. Babic is to be sentenced, the crime

7 is precisely the type of crime about which the Security Council of the UN

8 expressed its grave alarm in its Resolution 808. The events in the

9 so-called SAO Krajina in August 1991 to December 1991 are the classic

10 conduct of what is often referred to as ethnic cleansing and precisely

11 the reason why the Security Council established this Tribunal. The

12 persecution campaign that took place in the SAO Krajina was not an

13 isolated or random event, but a critical element in a larger scheme to

14 create a new Serbian state encompassing about a third of Croatia, large

15 parts of Bosnia and Herzegovina, Serbia, and Montenegro.

16 Vital to this scheme to create the new Serbian state was the

17 separation and the permanent removal of the non-Serb population from

18 these targeted territories. Those standing behind this plan intended to

19 pursue it either by agreement or by force.

20 Milan Babic, who was the highest ranking Serb politician and

21 official in the SAO Krajina, subscribed to this political goal of a

22 common state for all Serbs. However, in 1990 and the first half of 1991,

23 he did not approve the use of force, but favoured political agreement.

24 As witness Kovacevic has testified, Mr. Babic met with Croatian officials

25 in autumn 1991 to find a peaceful solution when the police around Milan

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Page 196

1 Martic had established a barricade. For this conduct -- Mr. Babic, for

2 his conduct, he was criticised by the small radical Serbs around Milan

3 Martic and the national resistance council, and he was called a traitor.

4 His efforts for a solution through negotiations were disturbed and

5 actually destroyed by these people from the national resistance council,

6 and those around Milan Martic.

7 However, at the same time, Mr. Babic was aware that the Serbs

8 were arming themselves and preparing for violent actions. He, in

9 particular, saw the violent and provocative actions of the so-called

10 parallel structure around Milan Martic, Frenki Simatovic, Jovica

11 Stanisic, and others. From August 1991 onwards, he was aware of the

12 violence that was vented against the non-Serbs, in particular the Croat

13 population in the SAO Krajina. He saw that the creation of the Serbian

14 state was pursued now with violent means. Yet, he continued to be part

15 of the highest circle of power. He continued to participate in what he

16 knew was a criminal enterprise. He indeed headed the political apparatus

17 in the region that facilitated the persecution campaign.

18 My colleague just alerted me that I said "Mr. Babic negotiated

19 with Serbs in autumn 1991." It's actually with Croats. Yes, we are

20 talking about 1990.

21 Mr. Babic continued to fulfil his political functions, continued

22 with his nationalist rhetoric, continued to cooperate with Slobodan

23 Milosevic, high-ranking officials in Belgrade, including the minister of

24 defence in Serbia, the Bosnian Serb leadership, and high-ranking military

25 and police officials in the joint criminal enterprise, in particular

Page 197

1 Milan Martic and JNA and TO generals.

2 Milan Babic's leadership position is an aggravating factor in

3 these events. However, in this context, I have to point out that a

4 distinction has to be made between him and other members of the joint

5 criminal enterprise. He was not in control of the forces executing the

6 campaign; he was not a leading member of the JCE; he was rather misled,

7 used and intimidated by other members of the JCE, in particular, Milan

8 Martic and Slobodan Milosevic.

9 Mr. Whiting in his opening remarks has explained to you the

10 territory Milan Babic is concerned with. He is not responsible for what

11 happened in the other territories. From the map, you could see that the

12 SAO Krajina includes a region in which Serbs were in the majority before

13 the war. Your Honour, on the map that you saw and what will become an

14 exhibit, you can also see a smaller map with various blue shades

15 indicating the ethnic composition of that region.

16 However, within this territory, there were small towns and

17 villages which were predominantly Croat. And against the non-Serb

18 population in these Croat settlements, a persecution campaign was waged

19 during which between September and December 1991 Serb forces murdered 110

20 Croat and non-Serb civilians in Dubica, Cerovljani and Bacin, 7 in

21 Lipovaca, 10 in Vukovici, 29 in Saborsko, 38 in Skabrnja, 7 in Nadin, 10

22 in Bruska - here including a Serb victim who happened to be visiting

23 there - and finally another 26 in Skabrnja.

24 Mr. Babic did not know about these particular murders at the time

25 when they occurred, and he was not aware of the scale of these and the

Page 198

1 circumstances of these murders. However, he knew that they were the

2 likely outcome of the ethnic-cleansing campaign.

3 During the investigation, it was always an issue whether

4 Mr. Babic knew about the murders when they occurred. However, I think we

5 have clarified this point today, and we know that he saw when he

6 travelled through the region the devastation. He saw that the Croatian

7 population had disappeared, and he knew that civilians were killed during

8 the ethnic-cleansing campaign.

9 I do not think that I have to go into details of what the media,

10 the Croatian media, reported because we have spoken about this issue

11 today. We have clarified this. So I do not want to waste any time with

12 this. However, I want to mention again that protest notes and official

13 declaration from Croats, from international observers, and Human Rights

14 Watch were addressed to the president of Serbia and to Jovic and the JNA

15 and not to this accused.

16 From August until November 1991, several hundred Croats and

17 non-Serbs, among them civilians, policemen, and soldiers, were detained

18 in two detention facilities in Knin in which they were kept in inhumane

19 living conditions and mistreated. Mr. Babic was aware of these detention

20 facilities. In fact, he was involved in the exchange of detainees. The

21 villages that I just mentioned in relation to the murders were destroyed,

22 the non-Serb population expelled, churches -- Catholic churches

23 devastated. Mr. Babic saw the results of the ethnic-cleansing campaign

24 when he was travelling through the region.

25 Mr. Babic was not in charge of the forces who did that. He was,

Page 199

1 however, the de jure commander of the Serb TO of the SAO involved in

2 these crimes. He was not part of the parallel structure that directed

3 the violent troops in subordination and coordination with the JNA. He

4 indeed had himself frequent conflicts with them, as witness Kovacevic has

5 told us. Nevertheless, Milan Babic cooperated with these forces in the

6 period of time that is charged here.

7 We have included in our submission the statements of a number of

8 victims from the tragic events. The horrors and enduring consequences of

9 the persecution campaign suffered by the victims are described in these

10 submissions. They reflect the impact that the crime had on the lives of

11 the former residents of the villages mentioned.

12 The Prosecution on purpose did not call any of the victims to

13 testify in this sentencing hearing. The victim witnesses had to come

14 here already to testify in other cases, in particular the Milosevic case.

15 Some of them will be needed in future cases. Speaking about the horrors

16 the victims survived can, as we heard from Mr. Loncar, be a healing

17 process. However, coming to testify again and again before this Tribunal

18 is a burden for witnesses, and we did not want to add to this.

19 Dr. Loncar has testified to the short- and long-term physical and

20 mental consequences he found in victims of the ethnic-cleansing campaign.

21 He adequately addressed the suffering of those who lost their family

22 members, their homes and material possessions; who lost their ability to

23 earn a livelihood; those who underwent detention. He described what it

24 means being wrenched from a peaceful life among their beloved ones to a

25 life of bleakness and despair as a displaced person or refugee with

Page 200

1 seeming no future. The nature of the crimes and the suffering of the

2 victims stemming from acts for which the accused bears responsibility

3 merits a severe sentence. It is beyond dispute that the gravity of the

4 crime is the most important factor to be considered in determining

5 sentence.

6 This is, however, an unusual case, where there exists substantial

7 mitigating factors which, in my submission, warrants the imposition of a

8 considerably lesser sentence -- indeed, a lesser sentence than the one I

9 described as my starting point.

10 Let me first address the circumstances that led to Mr. Babic's

11 participation in the joint criminal enterprise. We have heard from

12 witness Kovacevic and also could read in Mrs. Babic's written statement

13 that Mr. Babic was a family man who socialised with many people

14 regardless of their nationality before the war. He had friends and even

15 relatives of Croat ethnicity. He came into politics from his sincere

16 intention to work upon the development of the Knin region. The

17 prosperity of the Knin region was at the heart of his initial political

18 activities. Throughout his political engagement during the war and

19 afterwards, Mr. Babic remained focussed on the Knin region and did not

20 have involvement in other parts of Croatia or outside of Croatia when it

21 comes to the ethnic cleansing.

22 This focus on the Knin region turned into pursuing the Serb cause

23 in that region, or as Mr. Babic himself said, an ethnoegoistic course

24 that led to interethnic confrontation, the conflict, the war, and all the

25 horrors that occurred in the war. I asked myself what was it that turned

Page 201

1 an otherwise moderate man into an ethnoegotist, as he calls it, capable

2 of engaging in the acts charged. Already during the initial interview in

3 Serbia, Mr. Babic himself mentioned that the lasting media campaign from

4 Belgrade on the one hand and political actions by the Croatian government

5 instilled in him and many other Serbs in Knin a general fear for the fate

6 of the Serbian people in Croatia.

7 And I at that point would like to draw your attention to a quote

8 from Mr. Babic's interview. And it's actually the tape V0003557, tape 2

9 of 8, page 11 and 12. And it's actually on the first day of the

10 interview. And Mr. Babic made a reference to a speech that he gave in

11 the beginning of the SDS, at the founding of the SDS, at a rally where he

12 spoke about a desert between Knin and Karlovac, and he referred to

13 newspaper articles that he had read at that time, Belgrade magazines,

14 Juga, Knin, others, and in particular also Politika, that he read from

15 1989 onwards. And he said in reference to a particular article that he

16 remembered where there was mentioning of destroyed orthodox churches, he

17 said the following: "And when I was moving through this area by bus" -

18 and Mr. Babic was coming from Zagreb - "I wasn't at that time impressed

19 by the landscape of the Plitvice lakes. Wherever I looked in each

20 village, I saw a demolished church. And personally, I was really under

21 this impression, I had this impression when I was speaking of a desert

22 between Knin and Karlovac."

23 And in the following sequence, when you follow the next pages in

24 this transcript of the interview, he actually made clear that these

25 destroyed churches were there for decades, since actually the Second

Page 202

1 World War, and he suddenly saw them anew.

2 The Prosecution and the Defence jointly submitted the expert

3 report of Dr. DelaBrosse who described the power of propaganda and the

4 perfidy of the Belgrade propaganda machine. Expert witness Loncar

5 described the psychological mechanism that could have been at work in

6 this transformation process that Mr. Babic underwent. Witness Kovacevic

7 has told us that hate language became the predominant language in those

8 days, and that military action and violence took the place of political

9 argument. While Mr. Kovacevic himself turned his back to this

10 development and simply stopped taking part in politics, Mr. Babic did

11 not.

12 Mr. Babic succumbed to this propaganda, became, indeed, part of

13 it. Let's, however, not forget the strong influence that other members

14 of the JCE, in particular Slobodan Milosevic, had on Mr. Babic for a

15 period of time, the critical period of time.

16 Those who follow the Milosevic case take notice of the charisma

17 of this man, and how he could influence, mislead, and radicalise others,

18 one of them Milan Babic. As we know from Babic himself and also from

19 Ambassador Galbraith's testimony that was submitted to the Trial Chamber,

20 Babic was intimidated by Milosevic, Martic, Captain Dragan and others

21 members of the parallel structure in the SAO Krajina.

22 It is, therefore, my respectful submission that Mr. Babic should

23 be given certain credit for his being misled and radicalised by others,

24 in particular, the propaganda campaign. However, as Mr. Babic told us,

25 from August 1991, he saw what was happening: That not the Serbs in the

Page 203

1 SAO Krajina were endangered, but the non-Serbs. He complained in his

2 interview and the testimony in the Milosevic case why he continued to

3 take part and did not turn a back to this, like the witness Kovacevic.

4 He said that by this time, he lived his political role. He liked to be a

5 public figure. And he succumbed to his personal, political passion and

6 his vanity.

7 From which is wife and witness Kovacevic, we know that during

8 this time period Mr. Babic felt anxious, felt remorse. Privately he was

9 shaken by the destiny of the Croat people. And he made a few attempts to

10 take control over the forces that committed this ethnic-cleansing

11 campaign. But when he did not succeed, he gave in and continued to

12 participate in the JCE.

13 We also heard from Mr. Kovacevic how Mr. Babic unsuccessfully

14 tried to intervene in the case of Kijevo, actually the first case of

15 ethnic cleansing in the SAO Krajina. However, the ethnic cleansing

16 action took place, and Mr. Babic continued to participate in the JCE.

17 Mr. Kovacevic also told us that in summer 1991, it was for

18 Mr. Babic difficult to retract from what was put in motion, and this

19 would have been considered betrayal of the Serbs in the region, that had

20 he spoken publicly against it, Mr. Babic would have lost his political

21 influence. Mr. Kovacevic also told us that Mr. Babic treated those in

22 his immediate surroundings fair; yet, he - Mr. Kovacevic said, and I find

23 it very remarkable - that Mr. Babic followed the guidelines of his

24 political party. And I think this is actually the basis of Mr. Babic's

25 failure and his becoming criminally responsible. We find here the

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Page 205

1 personal motive of Mr. Babic's participation in the JCE. It was not a

2 deeply rooted nationalism; it was not hatred against the Croat people; it

3 was not strive for material gain. He failed to distinguish himself from

4 politics that he recognised to be criminal for the sake of not being

5 isolated among the Serbian people, not losing his influence in politics,

6 and not being called a traitor.

7 Postconflict behaviour was accepted as mitigating factor in the

8 Plavsic decision. Let me, therefore, briefly address Mr. Babic's conduct

9 after the persecution campaign. Milan Babic dissociated himself

10 beginning 1992 from Slobodan Milosevic, Milan Martic, and the other

11 members of the JCE. He finally found the strength to endure to be called

12 a traitor, to be isolated, and losing his political position. The

13 Prosecution submits that in the years 1994 and 1995, Milan Babic, as

14 Minister of Foreign Affairs of the RSK, participated in negotiations

15 between the Croatian and RSK authorities, encouraged and facilitated by

16 international community. Mr. Babic made efforts towards peaceful

17 cohabitation between Croats and Serbs. Ambassador Galbraith who

18 testified in the Milosevic case about these negotiations said about

19 Mr. Babic the following: "Nonetheless, I thought that he was the most

20 charismatic of all the politicians in the Krajina and had the interest

21 of the Krajina Serb population more at heart than any of them. I think

22 he was the only one actually who had any concerns for the local

23 population." In relation to cohabitation, Witness Galbraith said that

24 Babic was more open to the idea of Serbs and Croats living together than

25 others.

Page 206

1 Witness Kovacevic told us about his and Mr. Babic's attempts to

2 negotiate the peaceful reintegration of the Krajina into the Republic of

3 Croatia along the lines of the Z4 plan. The negotiations failed, given

4 the fact that Milan Martic and the parallel structure rejected all these

5 efforts. It is my respectful submission that Mr. Babic should be given

6 credit for his postconflict conduct.

7 My next point is voluntary surrender, guilty plea, and

8 reconciliation. Let me begin with a brief review of the case history.

9 Milan Babic initiated the first contact with the Office of the

10 Prosecutor in autumn 2001. At that time, he was not indicted; however,

11 his name was publicly mentioned in the Milosevic indictment. Shortly

12 after Mr. Babic agreed to take part in a suspect interview. For many

13 weeks in November 2001, January, February, and April 2002, he was

14 interviewed in Serbia. During the interview, Mr. Babic was forthcoming

15 and provided a detailed insight in the actions of the JCE, both in

16 Croatia and Bosnia and Herzegovina. At the same time, he revealed his

17 own participation and expressed his willingness to take responsibility.

18 In November 2002, Milan Babic testified for 12 days in the Milosevic

19 case. On 6 November 2003, Milan Babic was indicted. On the 26th of

20 November, he voluntarily appeared for his initial appearance. At that

21 time, he was fully prepared to plead guilty. On the 27th of January

22 2004, he indeed did plead guilty to persecutions, count 1 of the

23 indictment, after which the Trial Chamber found him guilty of such.

24 His guilty plea was a result of a plea agreement that is filed

25 with the Trial Chamber, and it is a matter of public record.

Page 207

1 Throughout the process - meaning from the initial interview until

2 the finding of the Trial Chamber - Mr. Babic was willing to take

3 responsibility. Most of those who pleaded guilty in this Tribunal had

4 been in custody in the Detention Unit for sometimes very long periods

5 before they pleaded guilty. Many of them pleaded guilty only shortly

6 before the commencement of trial or even during trial when they and their

7 counsels knew the full extent of the evidence against them. Trial

8 Chambers, including the one of Mrs. Plavsic, accepted voluntary surrender

9 to the Tribunal as a mitigating factor. Voluntary surrender meant that

10 the accused in these cases surrendered to the Tribunal at a point in time

11 when there was an indictment and an arrest warrant. Mr. Babic went much

12 further than that. He presented himself to the Tribunal at a time when

13 there was no arrest warrant issued against him. Actually, his surrender

14 to the jurisdiction of the Tribunal took place in Serbia, in November

15 2001. He gave his interview knowing full well that he was incriminating

16 himself and that what he said would be used against him in his own case.

17 Mr. Babic's early acceptance of responsibility for the crimes,

18 his voluntary appearance at the Tribunal, and his early guilty plea are

19 unprecedented in this Tribunal. This is why I call this case unusual.

20 Mr. Babic did not merely plead guilty to the count of

21 persecution. In addition, in a public address, he described what he had

22 taken part in, expressed sincere remorse, and called upon others to take

23 his example. The significance of his guilty plea and his showing of

24 remorse was highlighted into the evidence of expert witness Dr. Loncar.

25 In his written report and his testimony, Dr. Loncar addressed the

Page 208

1 importance of the guilty plea to the victims. He said that a confession

2 of this kind presented moral satisfaction because the perpetrator finally

3 has a name, and the victims' suffering is acknowledged. Mr. Loncar

4 called it a step towards healing, towards forgetting the past and turning

5 to the future. Babic's confession expressed the truth which so many

6 victims had silently been saying for many years, and which had been

7 denied by others.

8 Dr. Loncar also highlighted the effects of the guilty plea for

9 reconciliation. He made it clear that the message to the victims that

10 there is a person behind the crimes and not the Serb nation helps them

11 and their fellow countrymen to overcome the fear that the past might be

12 repeated, and opens the possibility for cohabitation. On the other hand,

13 the guilty pleas had has an effect on the Serb population. It gives them

14 opportunity to distance themselves from their leaders, to acknowledge

15 that the crimes occurred in their name, which subsequently will also lead

16 to reconciliation.

17 Whereas other similarly accused deny the truth about the crimes

18 and thereby assist those who want to falsify history, Mr. Babic who once

19 moved in the highest circles of power has made an example by freely and

20 wholly admitting his role in the crime. Voices like the one of Mr. Babic

21 are needed in an environment created by media, intelligentsia,

22 government, and party officials that have led the public to believe that

23 the Tribunal is an illegal institution designed to prosecute the Serbian

24 people, a view that antagonises the peoples of the former Yugoslavia

25 rather than reconciles them.

Page 209

1 To reconcile peoples previously at war, they have to face the

2 past and not cover it up. The facts of what occurred need to be

3 established on which basis the Court convicts or acquits the individuals

4 with a first and a last name, and not the collective responsibility of

5 the Serbian people.

6 For all these reasons, it's my respectful submission that

7 Mr. Babic should be given considerable credit for his conduct in the

8 proceedings before the Tribunal.

9 Cooperation of Milan Babic as a mitigating factor is my next

10 point. And let me first refer to the mission of the Tribunal. Following

11 the reports of serious violations of international humanitarian law

12 occurring in the former Yugoslavia, the UN commissioned an impartial

13 commission of experts to analyse the situation in the former Yugoslavia.

14 The interim report of the commission of experts was filed with the UN

15 Security Council in February of 1993. Based on the contents of this

16 report, the UN Security Council passed Resolution 808, in which it

17 expressed its grave alarm at continuing reports of widespread violations

18 of international humanitarian law occurring within the territory of the

19 former Yugoslavia including reports of mass killings and the continuance

20 of the practice of ethnic cleansing.

21 The Security Council determined that this situation constituted a

22 threat to international peace and security and on 25th May 1993 passed

23 Resolution 827 by which it established this Tribunal. In doing so, the

24 Security Council was convinced that the prosecution of persons

25 responsible for serious violations of international humanitarian law

Page 210

1 would contribute to the restoration and maintenance of peace.

2 The establishment of truth by this Tribunal is a vital component

3 of the efforts to restore and maintain peace in the former Yugoslavia.

4 The mandate given to the OTP is to prosecute persons responsible for such

5 violations; and to do so, it's necessary to unravel facts about events

6 that quite often both states and individuals are unwilling or reluctant

7 to yield. The ability of the OTP to fulfil its mission depends on its

8 ability to obtain evidence.

9 In relation to the prosecution of crimes committed by

10 perpetrators in the highest circle of power, it is difficult to obtain

11 evidence of the decision-making provides in such high circles, structure

12 and the actions of the joint criminal enterprise, in particular of those

13 members of the joint criminal enterprise who publicly distanced

14 themselves from the actions on the ground. To reveal the truth, the

15 Office of the Prosecutor often is dependent on the cooperation of persons

16 from within or very close to these highest circles. These potential

17 witnesses, however, by cooperating with the Prosecution, have to address

18 their own participation, and thus incriminate themselves.

19 Rule 101(B) of the Tribunal's Rules of Procedure and Evidence

20 address this situation and this conflict, and expressly provides that the

21 Trial Chamber shall take into consideration "the substantial cooperation

22 with the Prosecutor by the convicted person before or after the

23 conviction."

24 And according to the jurisprudence of this Tribunal, substantial

25 cooperation depends on the extent and quality of the information provided

Page 211

1 by an accused, and can include the prior giving of evidence on behalf of

2 the Prosecution; provision of new information, replete with the

3 identities and names of perpetrators; substantiation and corroboration of

4 existing information; and future cooperation including testifying on

5 behalf of the Prosecution.

6 In our judgement, the cooperation provided to the OTP by Milan

7 Babic has been substantial within the meaning and extent of the Rule.

8 The Prosecution, in its sentencing brief, has outlined the form

9 and substance of Mr. Babic's cooperation. For the benefit of the Trial

10 Chamber, I will just address a few details, first in regard to

11 information. The Office of the Prosecution has taken an extensive

12 statement from Mr. Babic covering the dealings of the joint criminal

13 enterprise around Slobodan Milosevic from 1990 through to August 1995,

14 covering the wars in Croatia and Bosnia and Herzegovina. The transcript

15 of this statement covers about 1.200 pages, detailing the acts and

16 conduct of all members of the JCE, the subordinate organisations, and in

17 particular the acts and conduct of Slobodan Milosevic. The Prosecution

18 provided this statement in electronic form to the Trial Chamber.

19 Mr. Babic expanded his statement after his relocation to a different

20 country, after he felt that his family and he himself were safe, and

21 after he could refresh his memory with the help of documents shown to him

22 and intercepted conversations played to him during proofing.

23 It is very significant to note here that at that time,

24 Mr. Babic -- when Mr. Babic provided his statement to the Prosecutor, he

25 did so without any promises of reward or benefit. He was fully aware

Page 212

1 that all he said could be used against him and actually was used against

2 him in his own proceeding.

3 Given the sheer size of the statement, I will highlight only some

4 of the information that Mr. Babic has provided so that you are aware of

5 the extent and the importance of his cooperation for my office.

6 He provided us with detailed information about the organisation

7 and actions of the Croatian Serb leadership, including himself, in 1990

8 through to 1995, and the support given to them by Belgrade, in particular

9 Slobodan Milosevic, the Serbian MUP, and the JNA. He described more than

10 30 meetings with Slobodan Milosevic and other members of the JCE,

11 including in particular Radovan Karadzic, in which the objectives and

12 actions of the joint criminal enterprise were addressed. In his

13 extensive statement, Mr. Babic explained the political philosophy behind

14 the actions of the Serbian leaders in Serbia, Bosnia-Herzegovina, and

15 Croatia, and how they went about achieving their goal of a new Serbian

16 state.

17 Mr. Babic provided unique information about the cooperation of

18 the various members of the JCE in the targeted territories and how they

19 coordinated their actions. He described the pattern of attacks on towns

20 and villages, and the subsequent persecutory acts against non-Serbs

21 starting in the targeted areas in Croatia, and continued throughout

22 Bosnia. And Mr. Babic told what he saw in both these countries. He

23 detailed the forces involved in this and their command structures.

24 Mr. Babic provided evidence of the arming of the local Serbs in Croatia

25 and those involved in it; namely, the Serbian MUP, the JNA, and the

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Page 214

1 political leadership in Serbia.

2 One of the most important issues to this Tribunal and to

3 historians is the involvement of the JNA in the wars in Croatia and

4 Bosnia, in particular the claim that the JNA only gott engaged as a

5 buffer between the warring local armed formations and only defended the

6 Yugoslav territory and its troops. This claim was and is an issue in the

7 Milosevic case. And as the transcript of this trial is a public record,

8 let me simply refer to a few transcript references.

9 During the testimony of Borisav Jovic, a member of the SFRY

10 presidency during the events, Slobodan Milosevic put to Mr. Jovic the

11 following in relation to the role of the JNA in Croatia: Is it true that

12 the JNA, apart from protecting itself and defending itself, endeavoured

13 to prevent conflicts from breaking out and to stand between the two sides

14 and only protected the Serb people when it was under attack, and that it

15 did not engage in any activities?" And you find this, if you want to

16 check, under transcript reference page 29.282. And Borisav Jovic

17 throughout his entire statement confirmed this. And I will give you for

18 ease of reference the other references throughout the Milosevic

19 transcript, and this is 29.131, 29.149, and 29.150, 29.252, 29.282 and

20 83, 29.288 to 29.293, and 29.298 to 29.299.

21 Dobrila Gajic-Glisic, the former chief of cabinet of the Serbian

22 Ministry of Defence at T27.900 referred to the following: "The armed

23 forces" -- and that means the JNA -- "had to be used in Croatia because

24 the Ustasha paramilitary formations began carrying out massacres which

25 were repetitions of history. The JNA had to create a buffer between the

Page 215

1 Ustasha forces and the Serb population."

2 Mr. Babic, in his interview and later in his public testimony,

3 made clear that this claim is untrue, and that the JNA sided with the

4 Serbs in the targeted areas, shared the goal of the political leadership,

5 and was fully engaged in the ethnic-cleansing campaign.

6 Mr. Babic also put an end to the myth that the Serbs were only

7 victims in these wars, and that they only defended themselves in the

8 territories against genocide by the hands of the Croats and the Muslims.

9 As an example - and again, from the Milosevic case - let me read to you

10 from a statement of General Veljko Kadijevic, the federal secretary for

11 National Defence, of the 3rd of October 1991. And it's an exhibit used

12 in the Milosevic case. It's Exhibit 328, tab 14. And the transcript

13 references are 10587 and 10.588.

14 Referring to what he calls the fascist regime in Croatia, he

15 claims "we had only one goal, to prevent the bloody ethnic clashes and

16 hinder the repetition of a genocide of the Serbian people." And he

17 continues a little bit further: "At this moment, the army desires

18 nothing else but to establish control in crisis areas, protect the

19 Serbian population from persecution and extermination, and to liberate

20 the members of the JNA and their families."

21 Mr. Babic in his interview and in his public testimony made clear

22 that this notion was the product of a powerful propaganda designed to

23 separate the peoples of Yugoslavia and to create an atmosphere of fear

24 and hatred that prepared the Serb population for the idea of ethnic

25 cleansing and for the persecution campaign that was to happen.

Page 216

1 I have already pointed out the perfidy of the propaganda machine

2 at work that, as expert DelaBrosse explained, portrayed the Serbian

3 people as the only righteous, victimised people in the former Yugoslavia,

4 victim of genocide in the past and in the 1990s. Acknowledging that a

5 persecution campaign was conducted against the other peoples in the

6 former Yugoslavia, namely the Croats and the Muslims, remains very

7 difficult for many people in Serbia and Republika Srpska to accept.

8 Looking at the recent developments in Serbia, the Prosecution submits

9 that there are still considerable efforts to deny the crimes that are

10 charged in cases in the Tribunal. Let me take this opportunity to refer

11 to paragraphs 256 to 260 of the sentencing judgement of Miroslav Deronjic

12 in which contribution to prevention of revisionism was considered a

13 mitigating factor. The facts provided by Mr. Babic in open court

14 undercuts the ability of future revisionists to distort historically what

15 happened in the territories claimed as Serb territories in the wars in

16 the 1990s.

17 Many of the information provided by Mr. Babic is unique and will

18 be significant in future prosecutions in this Tribunal, including the

19 Krajisnik case, the Martic case, the Seselj case, the Stanisic and

20 Simatovic case, and the Karadzic and Mladic case, should they be arrested

21 and prosecuted here. All high-profile cases in this Tribunal involving

22 Serb perpetrators will benefit from Mr. Babic's evidence.

23 Let me also address the documentation provided by Mr. Babic.

24 Mr. Babic provided the OTP with important original documentation. And we

25 are talking here about -- of about more than 150 documents provided or

Page 217

1 explained during the interview. Even more documents, including those

2 provided and those authenticated by Mr. Babic, were tendered through him

3 in the Milosevic case, specifically documents proving the financial and

4 material support provided by Belgrade to the Serbs in Croatia in the

5 years 1991 and 1995. He authenticated and commented on huge amount of

6 intercepted conversations between members of the joint criminal

7 enterprise, including himself, Milosevic, Karadzic, Stanisic, and those

8 conversations referred to arming of the Serbs in the territories, actions

9 to be taken to deceive international negotiators, and military actions on

10 the ground.

11 In addition, he provided or authenticated military orders and

12 items that revealed the ideology standing behind the military actions on

13 the ground. Mr. Babic has provided the Prosecution with the identities

14 and roles of numerous perpetrators involved in the actions of the joint

15 criminal enterprise that were unknown to the Prosecution or whose

16 involvement was unknown. I will not elucidate on this further.

17 Let me speak about mitigating factor, remorse. Your Honours, I'm

18 a member of the OTP since almost nine years and I have meanwhile

19 investigated and prosecuted a number of cases. I was always very

20 affected by the statements and testimonies of victims, their degree of

21 traumatisations after long, long years after the events; their long-term

22 physical and mental suffering; and in particular their feeling of guilt

23 years after the fact, guilt that they had survived, guilt that they had

24 not protected their relatives. Mr. Loncar spoke about this, too. And at

25 the same time, I had dealings with many perpetrators that seemed to be

Page 218

1 totally unaffected by the suffering that they caused. They did not show

2 remorse, and they did not feel any guilt. Instead, indulged in self-pity

3 and considered themselves as the victims. I saw cases of total denial,

4 slander of the victim witnesses, and smirking when victims broken down in

5 court and cried.

6 Mr. Babic is different. We know from him, his wife and

7 Mr. Kovacevic that he felt remorse. And not only here in Court; he felt

8 remorse early on. And he felt guilt already while the persecution

9 campaign was underway. Mr. Babic joined the Milosevic case, and in his

10 own proceedings had publicly expressed his remorse fully and

11 unconditionally. And he has expressed his hope that the guilty plea will

12 assist the peoples of the former Yugoslavia.

13 I am convinced that his showing of remorse is not a tactical

14 move, but genuine. The Prosecution submits that this expression of

15 remorse is noteworthy, since it is offered from a person who formerly

16 held a leadership position.

17 As I said in the beginning of my remarks, this case for which

18 Mr. Babic has admitted his guilt is a serious and grave crime for which I

19 would not hesitate to ask for severe sentences as I have done so in past

20 cases. I have endeavoured to explain why I am not making such a request

21 in this extraordinary case. All the mitigating factors in this case - in

22 particular, the early guilty plea, Mr. Babic's general remorse and

23 contribution to reconciliation, and principally his very substantial and

24 important cooperation with the Tribunal - have led me and my colleagues

25 to the conclusion that a different sentence is merited in this case.

Page 219

1 The Prosecution on purpose did not recommend a sentencing range

2 like in other cases with a minimum sentence. Our recommendation only

3 gives the maximum sentence of 11 years, and we recommend that the actual

4 sentence should be below this.

5 As I said in the beginning, it is a difficult task to determine a

6 just sentence for Mr. Babic that on the one hand acknowledges the

7 gravity of the crimes and the mitigating factors and on the other hand

8 sends the right signal to those who consider to take similar steps to

9 Mr. Babic; that is, to take responsibility and to assist this Tribunal to

10 fulfil its mission.

11 I hope that my closing remarks will assist the Trial Chamber.

12 JUDGE ORIE: Thank you, Ms. Uertz-Retzlaff.

13 Would you allow me, before we have a break, to ask for one

14 clarification. Let me just try to find the proper page. I think it was

15 on page 30. There was one passage which was not quite clear what you

16 meant to say, but it could be my bad understanding of the English

17 language.

18 You said, "in the following sequence, when you follow the next

19 pages in this transcript of the interview, he actually made clear that

20 these destroyed churches were there for decades, since actually the

21 Second World War, and he suddenly saw them anew." It was not entirely

22 clear to me what you exactly are explaining to us. Could you try to make

23 it more clear for me.

24 MS. UERTZ-RETZLAFF: Yes, Your Honour. What I wanted to point

25 out is that the media campaign, this propaganda from Belgrade, were

Page 220

1 actually changing the reality for Mr. Babic. As he addressed it himself,

2 there were churches destroyed, Orthodox churches, since from the Second

3 World War, and he had never really taken notice of it any more because

4 they were just there. And suddenly, after having wrecked those things,

5 he suddenly saw them. He suddenly acknowledged it again as if it were

6 something new.

7 JUDGE ORIE: Now I better understand it. These churches were

8 never repaired or restored.

9 MS. UERTZ-RETZLAFF: They were never repaired or restored.

10 JUDGE ORIE: It was not part of the picture of what Mr. Babic

11 saw.

12 MS. UERTZ-RETZLAFF: That fact that they were never restored was

13 never an issue for him in the past, but suddenly it became an issue.

14 JUDGE ORIE: That is now clear to me.

15 [Trial Chamber confers]

16 JUDGE ORIE: Then we'll have a break for I would say until 20

17 minutes to 12.00. And then I have to move a bit. I would expect the

18 Defence to finish its final remarks not later than a quarter to 1.00. We

19 adjourn.

20 --- Recess taken at 11.23 a.m.

21 --- On resuming at 11.42 a.m.

22 JUDGE ORIE: Before I invite the Defence to give its closing

23 remarks, I would still have one small question for you,

24 Ms. Uertz-Retzlaff, and that is the following question: When we

25 discussed earlier today the knowledge of Mr. Babic on civilians being

Page 221

1 killed during attacks, although not the specific attacks mentioned in

2 paragraph 15 under (a) of the indictment, you made a distinction between

3 execution, which I understood to be an execution of persons being taken

4 together and then killed, and what you called civilians being killed

5 during an attack. I understood that to be if you attack a village and

6 you raze to the ground a house when there are civilians in there, they

7 will be killed as a consequence that have attack. And of course attack

8 has a very specific military meaning.

9 But from a legal point of view, would the killing of 5, or 10,

10 or 30 people, driven together after the village has been attacked and

11 then summarily executed, would it from a legal point of view make a

12 difference whether they are killed when they are still in their houses

13 and when the house is shelled or razed to the ground, or whether they are

14 driven together and then in a group being executed? Would the one be

15 less murder than the other one? Could you give your view on the legal

16 aspects of what you explained in more factual terms.

17 MS. UERTZ-RETZLAFF: It's more a degree in the criminality, to

18 let's say kill people during an attack by let's say the shelling from the

19 forces, by setting houses on fire, is to me a different kind of killing

20 than the one where you actually gather people together, separate men and

21 women, and then kill the men in front of the eyes of their relatives.

22 These kind of actually killings we have specified in the indictment in

23 particular.


25 MS. UERTZ-RETZLAFF: And we make a distinction in relation to

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Page 223

1 criminal energy that is actually connected with these kind of killings.

2 JUDGE ORIE: Yes. Do I understand your answer properly when I

3 say that the crime as such is not different, but the way in which such a

4 crime is committed distinguishes it from -- if you drive people together

5 and then kill them in view of their relatives or other inhabitants of

6 that village, circumstances are different. But it's murder in both

7 cases.

8 MS. UERTZ-RETZLAFF: Yes, this is how I see it.

9 JUDGE ORIE: Yes. Thank you very much.

10 Then since you indicated, Mr. Mueller, Mr. Fogelnest, that you

11 would share the time allocated to you, who is going to speak first?

12 MR. MUELLER: I'm speaking first.

13 JUDGE ORIE: Mr. Mueller, please proceed.

14 MR. MUELLER: Mr. President, Your Honours, before I start into my

15 final arguments, I would like to ask you to go for three or four

16 sentences into private session.

17 JUDGE ORIE: Yes. We'll turn into private session.

18 [Private session]

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 224

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 [Open session]

22 MR. MUELLER: Just wanted to give an impression of how far these

23 repercussions of intimidation were going. They went right into this

24 courtroom, today, this morning.

25 Mr. President, Your Honours, I opted for making my intervention

Page 225

1 brief because on one hand, I strive to avoid the impression of

2 inappropriate excuses inherently consisting of too many words, and on

3 the other hand everything relevant for your decision is made available

4 already to you today.

5 Mrs. Uertz-Retzlaff, the distinguished representative of the

6 Office of the Trial Prosecutor, has presented and evaluated many

7 arguments in a way we as Defence counsel - and permitting me to speak for

8 my colleague - could not have done any better. She referred to the

9 quality of the cooperation that also included the presentation of

10 documents the investigating authorities had not been aware of at a point

11 of time, and that Milan Babic could preserve under dramatic

12 circumstances.

13 I would like to very briefly comment on the tasks and office

14 Milan Babic had. His office as president of the SAO Krajina and of the

15 RSK by far did not bestow the power upon him that you usually would have

16 expect to find and that initially perhaps also OTP assumed he would have

17 been granted.

18 As a logical result, the OTP and the Defence had to differentiate

19 the de facto powers from the de jure position Milan Babic had as

20 adequately reflected in the briefs of the parties. I do not want to

21 expound on these briefs any further, which were filed early last week.

22 And by this way, I would like to avoid repetition of the same line of

23 arguments.

24 While my colleague will speak later on, as I presume, about the

25 appropriateness of the sentence and a variety of other aspects, I rather

Page 226

1 would like to focus on the facts and circumstances that I consider to be

2 most important and that are dear to me, like, for example, the ones you

3 will find in Milan Babic's statement and the ones provided in the other

4 written statements that were presented to you. Sometimes they are not

5 that obvious, and one has a little bit to read between the lines.

6 Expounding on mitigating factors in general would be redundant, and

7 particularly after what we have heard today by Mrs. Uertz-Retzlaff, since

8 I'm sure you will give all of them your most appropriate consideration.

9 So instead I would like to focus on the extraordinary facts and

10 extraordinary circumstances related to the case of Milan Babic and

11 related to his person.

12 The admission of his guilt, his confession and repentance, his

13 cooperation, and the suffering of Milan Babic himself and of his family

14 for years partly caused by his own wrongdoings and partly caused by the

15 wrongdoing of the coperpetrators; these are the main issues I feel

16 obliged to put forward to you today. His wife spoke about him loud

17 screaming in his sleep, him waking up with a start, him having many

18 sleepless nights, the nightmares and frightening dreams. According to

19 her, all of this started as early as 1991. So I do not only speak about

20 a person who is afraid of a sentence and thus cannot find his sleep and

21 who is suffering from severe headache. But I also speak about a man who

22 for a long time has been in a severe and profound moral dilemma because

23 of what he did and of which has been accusing himself of ever since.

24 Once he was at a crossroad and opted for the wrong path. And

25 very quickly, he became aware of his dreadful thought, thus finding his

Page 227

1 way back to the correct path very soon. Mrs. Uertz-Retzlaff - and I'm

2 very grateful to her for this - has elaborated extensively on this today.

3 Regarding his remorse and repentance, I would like to say the

4 following: From the very onset, his own moral obligation prevented Milan

5 Babic from challenging these charges brought up against him. He always

6 expressly said that contesting the charges raised would be impossible due

7 to his own moral misgivings. With that, he could not have lived, as it

8 looks to me, it would have been impossible to him to look into his

9 children's eyes. That's how I know the person Milan Babic.

10 In case there might still linger some doubts as to the sincere

11 repentance of Milan Babic, one should once again consider Milan Babic's

12 marked somatic symptoms described by his wife. They can only stem from

13 his insight that there was wrongdoing on his part and that he

14 tremendously suffered from what he himself referred to inter alia as

15 ethnoegotism.

16 As I said, he quickly found his way back to moral integrity and

17 very soon turned away from those who had tricked him into following them

18 and had him become a member of the joint criminal enterprise. Alas, it

19 was too late to make things undone, although he was able to forestall

20 further aggravating his personal guilt because of his personal turnaround

21 and him turning away from the goals set by the other members of the JCE.

22 It is only natural and conclusive for Milan Babic to opt for an

23 unconditional, frank, and wholehearted cooperation with the OTP as a

24 starting point for establishing the truth, and also for finding the truth

25 within himself. This was a continuous process developing over the time

Page 228

1 and emerging already during the first interviews with OTP carried out in

2 Serbia on a distinct place.

3 It is particularly important to note that he did more than to

4 merely admit his own guilt and admit his own wrongdoing, the outcome

5 being a comprehensive and permanent cooperation with the law enforcement

6 entities. And this cooperation for sure has not come to its end, as it

7 was said during the course of this morning.

8 It is not a secret that for days Milan Babic testified as a

9 protected witness in the Milosevic trial, and even decided to drop his

10 pseudonym and cancel other protective measures to hide his identity.

11 This, too, was part of the development he personally underwent. He first

12 had to carefully weigh the fear of his family of revealing publicly his

13 identity against the necessity to reveal his identity, important for

14 establishing the truth and for fostering reconciliation. There is no

15 doubt that Milan Babic has and does accept his coresponsibility in the

16 distress, grief, and agony suffered by the victims of these inhumane

17 crimes. Yet, as his Defence counsel, I also have the task to draw

18 Your Honours' attention to the agony his family and he have been

19 suffering from.

20 But in the end, the only thing that counts is the fact that he

21 actively embarked upon the process of revealing the truth. If you were

22 to ask him what were his feelings, then he would tell you "my family and

23 I feel a tremendous relief and a lot of alleviation."

24 In Serbia, there are many people who consider him to be a

25 traitor. He is also stigmatised by the church as a traitor and he was

Page 229

1 threatened with anathema. In the people's minds, there is just back and

2 white; either one is a soldier, fighting for the so-called right cause,

3 means the Serbian cause, or one is a traitor, an enemy. He fell between

4 two stools. And he made up his mind to quit for good. And right now,

5 the OTP and his Defence counsels are expressly the only ones who speak

6 for him. We sincerely hope that the close and intimate ties between his

7 family and himself will continue to support him in these difficult

8 moments, and that all his family members who suffer from their isolation

9 will survive this ordeal, and that all one day they will enjoy living

10 together as a family again.

11 And that leads me to truth-finding, pacification and

12 reconciliation in general. Milan Babic is the first one of the members

13 of the joint criminal enterprise, as I see it, who had both the courage

14 and the stamina to testify and cooperate with the OTP, being fully aware

15 of jeopardising his life as well as the lives of his family. There had

16 been three attempts on his life back in 1991 and 1992, which he survived.

17 This process of purification and self-healing, the plea agreement, plus

18 the full extent of his cooperation, make him so different from the others

19 who either only made a confession with regard to their own wrongdoing or

20 provided the OTP just with limited information. And this is the very

21 moment when the defendant, willing to confess, has made his unique

22 contribution to history. And for sure, that will be given due

23 consideration.

24 I cannot refrain from depicting the present and dominant public

25 opinion in many parts of the former Yugoslavia as a stubborn reluctance

Page 230

1 to accepting the truth as an appropriate medicine and appropriate therapy

2 on the way to recovery for this country where the social fabrics were

3 destroyed and twisted so extensively for more than one decade. This is

4 also one of the reasons why I have to say that I feel great respect for

5 Mr. Milan Babic, as an individual who was able to return to the right

6 path after the deplorable and horrible face of abberation.

7 Your Honours, Milan Babic is not an important historical figure

8 because he was a Serb leader or the president of a self-declared Serb

9 political entity called SAO Krajina, or RSK. He became an important

10 historical figure in a completely different context. By coming forward

11 so early with truthful and comprehensive information, by coming forward

12 with confession and remorse, by voluntarily offering his cooperation by

13 expressing his readiness to appear before this Tribunal, he has developed

14 from a politician of questionable and mediocre calibre into an important

15 figure that participants in the creation of an accurate historical

16 record.

17 Hopefully, and for the sake of truth-finding, reconciliation and

18 peaceful development in the Balkans on longer terms, he may be a role

19 model inducing others to follow him.

20 Milan Babic's guilty plea on January 27 of this year was not just

21 made because others already did so, but was a deliberate decision made by

22 him; genuine, as Mrs. Uertz-Retzlaff said today. Right from the start of

23 our client/lawyer relationship, I realised that deep down in his heart

24 there has been the strong desire for historical truth. Milan Babic

25 learned that this historical truth required him to confess his own guilt.

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Page 232

1 And finally, and to full extent, he did so on February 23, 2002. And the

2 relevant transcript has already been tendered into evidence.

3 Later on, and I mean in those days when Milan Babic was unwilling

4 to wait until his sentencing hearing to express his remorse and confess

5 his guilt before this very Tribunal, he decided for the unusual approach

6 of doing so already on the occasion of his guilty plea on January 27 by

7 coming forward with a statement which we all know. Everybody willing to

8 listen and willing to surrender to the historical truth will be deeply

9 moved, maybe even steered by Milan Babic's plea and his statement. Like

10 Mrs. Plavsic, Mr. Babic will become a role model for those willing to

11 acknowledge the truth. Maybe Milan Babic's contribution goes even

12 further, as outlined this morning, and substantiating importance of

13 contribution to finding the truth.

14 What other means do we have at our disposal for helping the

15 people in the Balkans to heal their wounds and come to terms with their

16 past than the publicly claimed willingness of their former political

17 leaders to contract to truth-finding, admitting their own guilt, and show

18 repentance? What other remedies do we have? The Balkans have been

19 described by the Nobel Prize laureate Ivo Andric who comes from that very

20 region as a geographic region where hatred is endemic; where one's hands

21 have to be stained with blood in order to be called a hero, and where

22 reason and sound restraint often are disqualified as treason and

23 cowardice.

24 This way of establishing the truth and re-establishing peace is

25 very fragile. It's like a bird in our hands. Allow me to add a few

Page 233

1 comments on the benefit of truth-finding mechanism, which to my opinion,

2 of course, must always commence as soon as possible and which is the

3 basis for reconciliation as we all know. I was glad to hear former US

4 Secretary of State Dr. Madeleine Albright when she stated in the Plavsic

5 hearing December 17 the past year, and I quote: "I think reconciliation

6 was the main purpose behind having such a Tribunal." Mrs. Albright was

7 also among those who called us, and I quote again, "to show our respect

8 for those who have pled guilty." And this was also her who listed the

9 tasks of this Tribunal, putting the reconciliation as a task of prime

10 importance. In a certain sense, and please allow me to add that, in a

11 certain sense, one can say she was one of the founding members of this

12 Tribunal in her capacity as the then-US Ambassador to the United Nations

13 and representing the United Nations on the Security Council.

14 Please, let me refer to another very important statement made by

15 Dr. Boraine. He was cochair of South Africa's Truth and Reconciliation

16 Commission. He stated that criminal-justice systems are not designed to

17 determine guilt or innocence, but also to serve creation of a peaceful

18 society. In the course of his testimony in the Plavsic case, he

19 expressed his conviction that accepting responsibility for terrible

20 crimes can have a transforming and dramatic impact on the perpetrator and

21 on the victims, and of course on society. And according to Dr. Boraine,

22 this is a significant factor for pacification.

23 Having said this, Your Honours, it is evident that confessional

24 statements and an extensive and ongoing cooperation with OTP is the best

25 way to fulfil the objectives of the ICTY; and in addition to this, it is

Page 234

1 a powerful tool substantiating the legitimacy of this Tribunal.

2 Your Honours, thank you for your attention.

3 JUDGE ORIE: Thank you, Mr. Mueller.

4 Mr. Fogelnest.

5 MR. FOGELNEST: Your Honours, I can advise you that I will

6 probably be more brief than I had anticipated, primarily because

7 Mrs. Uertz-Retzlaff covered much of what I wanted to say. And not

8 surprisingly, she did it in a more thorough and eloquent fashion than I

9 would have been able. If I may share some thoughts with you which I hope

10 will be helpful in having you perform your difficult task.

11 It strikes me that part of the legacy and the contribution that

12 this Tribunal has to make is to provide humanity with some insight as to

13 how things as hard as crimes against humanity can occur. And from that

14 insight, perhaps we as a species can learn how such crimes can be

15 prevented. As we're convened here, there is ethnic cleansing going on in

16 the Sudan, for instance. A thousand people a week are being killed;

17 tribeswomen are being systematically raped; 7.000 people have been driven

18 from their homes and the Sudanese army is bombing the survivors. Last

19 week or so, people were killed in Kosovo, again. It is my hope, and I

20 think the hope of all of us, that the work of this Tribunal is at least a

21 beginning to gain the insights to bring an end eventually to human beings

22 committing this sort of inhumanity.

23 One of the lessons that I think is important, that is to be

24 learned from Babic's case, is that such crimes do not occur solely from

25 hatred or greed, for Milan Babic the evidence is clear was not filled

Page 235

1 with hatred. And he certainly wasn't filled with greed. Unlike others,

2 didn't seek to enrich himself from this situation. What's to be learned

3 is that fear and vanity can also be precipitating factors in such

4 horrible things. Fear is an irrational emotion. Fear was inspired by

5 the propaganda. And fear is still being inspired by governments and

6 individuals around the world. And the lesson to be learned is that if we

7 act on fear, that these are the kinds of things that should occur.

8 Greed; well, he certainly wasn't subject to that. What happened

9 to Milan Babic as a result of his fear and his vanity, his desire to

10 remain in power, to remain in his political position? Today, he has

11 nothing. He is truly indigent. He will live the rest of his life with

12 feelings of guilt for the wrongs he has done. You have heard how those

13 things manifest themselves physically. He has lost his home. He has

14 lost his homeland. He has lost his profession. He will probably never

15 be able to see his mother and his sisters again. Another collateral

16 consequence is he has imposed the results of this on his wife and his

17 children, and he must live with the pain of knowing that he has done

18 that. They, as well as he, must live in hiding the rest of their lives.

19 They have all had to live under the restrictions placed upon them for

20 their own security. I certainly won't go into them, and even I if were

21 to at this point, I can't tell you much about them because they are so

22 severe that the lawyers are not permitted ot know exactly what is

23 involved. We asked if we could discuss that with Mr. Babic. In any

24 event, we know it's not that it's the same as the freedom under which all

25 of us live under.

Page 236

1 One of the factors that is generally given due consideration in

2 mitigation is the fact that someone had served time in the Detention Unit

3 and how they comported themselves. That factor was only present here for

4 a period of four days. The Court may want to give some consideration -

5 although I don't think it has ever been done before because it's never

6 been relevant before - is how he has comported himself under the

7 restrictions he and his family have had to live. He has lived for years,

8 literally years, facing the prospect of serving a prison sentence in a

9 foreign jail, in relative isolation in a culturally unfamiliar

10 environment, unable to communicate and socialise with his fellow inmates

11 and prison personnel. And he will do so as a protected witness. We're

12 not really sure what that means, but we can assume, based on our

13 experience from our own jurisdictions, that he'll be ostrasised by other

14 prisoners and perhaps even be in physical danger, and may require to be

15 confined for whatever period the Court deems appropriate in even more

16 restrictive situations than other prisoners who are similarly situated

17 would be.

18 Now, if this Tribunal after performing your function decided that

19 he should not even serve one more day in jail, all of those things ought

20 to be enough to deter any sane person from committing the wrongs that

21 Milan Babic did. Another lesson to be learned is that this Tribunal, I

22 believe, has reinforced if not established a very important legal

23 principle here. Were there ever before a question, were there a grey

24 area, it's now abundantly clear as a matter of international law that a

25 person holding political office, no matter what their motivation, no

Page 237

1 matter what the circumstances, no matter what their fears, may not

2 participate in crimes such as occurred in the Krajina while serving in

3 that office. Even if it's only signing papers, even if it's only

4 achieving funding, it is wrong. It's against the law. And that

5 principle is firmly established through this case as it never has been

6 before.

7 There's no question that once Milan Babic became aware of the

8 methods being used to achieve this Serbian state, or if you will, to

9 protect the Serbian population, that once he knew what those methods

10 were, he had a moral and legal responsibility to refuse to participate in

11 that criminality, and he failed to meet that responsibility.

12 Let every political officeholder in every country in the world be

13 put on notice: They are indictable. And at least, if there is no

14 mechanism because they might refuse to sign a treaty which would render

15 them subject to a jurisdiction of a court, then they are morally

16 reprehensible. Let them know from now on.

17 He stayed in office. He executed his duties. He didn't speak

18 out against what he knew to be wrong. And his nationalistic speeches,

19 although I must say relatively moderate compared to some others, they

20 placed fuels on the fire of hatred, and they caused harm. And let those

21 who would make such speeches, let those who would engage in such

22 activities know what this Tribunal does.

23 It's not a defence that if he had not done the right thing, he

24 would have lost his office. It's not a defence that if he had not stayed

25 in office, someone else would have come in and done the job. It's not

Page 238

1 even a defence that he was potentially subject to assassination, because

2 we know that these things were occurring. Sometimes it's not easy to do

3 the right thing, but it must be done. And a failure to do so can convert

4 one from being a well-meaning person into a criminal. That's what

5 happened here, and that's what one of the lessons the world can take from

6 this proceeding.

7 What sentence should be imposed? It's extremely difficult to

8 calculate what constitutes a just sentence, and I won't argue for a

9 specific sentence for a couple of reasons. First of all, any

10 recommendation I would make I must confess is tainted. I met Milan Babic

11 in November. And in the last several months, I have grown to empathise

12 with him, to respect him, to care for him. I'm emotionally involved.

13 This Tribunal can't make decisions based on emotion. It has to be

14 reason. The authority, the prestige of this Tribunal and the work it has

15 done doesn't permit emotional responses. And my feelings are emotional.

16 My recommendation would be emotional.

17 How do you convert the appropriate factors into a mathematical

18 formula which then translates into a period of incarceration? I have no

19 idea. I don't know how to address that. But that, indeed, is the job

20 that you must do. I don't envy you that responsibility. I know that I'm

21 incompetent to do it. I wouldn't know where to begin. How do you weigh

22 the fact that a guilty plea, is it worth 20 per cent? Is it worth

23 47 per cent? I don't know how Judges do that. And you have no guidance.

24 It's not addressed in the statutes. It's not addressed in the Rules.

25 It's not discussed in the jurisprudence as to how the weight is. And

Page 239

1 indeed, reasonable people looking at the same facts, considering the same

2 factors can weigh them differently. You all don't even have to agree.

3 As recently as last week, a Chamber in this Tribunal, two of the Judges

4 thought the appropriate sentence would be 10 years, another Judge acting

5 in good conscience felt compelled to write a dissenting opinion for a

6 sentence twice as long. The same evidence, the same information in front

7 of the three of them. If one had changed his mind, that individual would

8 have received a sentence twice as long. We're dealing with very vague

9 sorts of concepts here, and I can't offer much thought on how to weigh

10 them.

11 It seems as if in this particular case, the case of -- before I

12 address that, let me say this: I have no doubt that there are some

13 people who believe and would argue that no matter what his role - the

14 limitations of it, the extent of it - no matter what the mitigating

15 factors, no matter what contributions he has made toward peace and

16 reconciliation, they would have Milan Babic dead. There's no doubt that

17 there are people that would believe that. I went and looked at the

18 Nuremberg cases when I became involved in this process, and I was shocked

19 to see how many of those sentences resulted in death by hanging. But we

20 as an international community have progressed beyond that sort of

21 barbaric vengeance. The majority of the nation states of the United

22 Nations have abolished the death penalty, informing this Tribunal it was

23 specifically precluded. So those who would argue that Mr. Babic should

24 be put to death can never be satisfied by the work of this Tribunal

25 because it has institutionalised that as civilised people we will not

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Page 241

1 have that sort of a penalty under any circumstances.

2 At the other extreme, I have no doubt that there are others who

3 might say that he has suffered enough already. His role in these crimes

4 and his courage in coming forth to speak the truth coupled with the other

5 mitigating factors or such, that he should receive no additional time in

6 prison. I confess, that that would be my personal feeling, but I also

7 confess that it's tainted by my emotions. And that's not the way you

8 need to make a judgement. You have to find the ground in the middle that

9 serves the interest. Prosecution has recommended that it be less than 11

10 years. And this, of course -- they haven't told you how much less. I

11 wonder what their personal feelings are. But they also did not express

12 them.

13 The Rules, the jurisprudence and the Statute don't require you to

14 afford any weight to the recommendations made by either side. You're

15 free to disregard these recommendations to make your own personal

16 individual determination based upon your analysis, your conscience, and

17 what you think to be right and wrong. What a burden. What a burden you

18 men have. I'm glad it's not mine.

19 But this 11-year recommendation, less than 11 years, invites a

20 comparison with the Plavsic case. And I won't go through all of it

21 because Ms. Uertz-Retzlaff covered it so well, but I do want to highlight

22 a couple of things. Entry of Mr. Babic's plea was before he was

23 indicted, before he was arrested. Biljana Plavsic -- who,

24 parenthetically, called him a traitor -- made her initial appearance in

25 this Tribunal on the 11th of January 2001. Her guilty plea was entered

Page 242

1 on October the 2nd of 2002, almost two years later -- after she knew

2 that there was a high likelihood of conviction, I infer.

3 With respect to their role, various degrees of responsibility, in

4 paragraph 1 of the Plavsic judgement, the Court found that she embraced

5 and supported the objective of ethnic cleansing. I guess Mr. Babic did,

6 but not in exactly the same way and under the same circumstances. And I

7 don't how to articulate that any better, but I think that the Tribunal

8 ought to have a sense of that at this point.

9 Part of his crime involved his public statements and the fuel he

10 fed to the fire. You'll have I think at this point an understanding of

11 how that occurred and what his motivation is. I would invite the Court

12 to take a look at this DelaBrosse report and specifically footnotes 38,

13 45, and 151. She said horrible, horrible things, racist things, ugly

14 things. You ask the Prosecution to provide you with the worst of what

15 Mr. Babic said. I'm not disposed to read these in Court right now, but

16 if you'll take a look at them you'll see that the quality and the nature,

17 the hatred expressed by her. So that if that is a legitimate mitigating

18 factor and it should weigh more heavily in his favour, the nature of what

19 was said.

20 There's a slight legal issue that needs to be addressed, and that

21 is in their papers the Prosecution has asked -- argued that his

22 leadership role should be an aggravating factor. Simply stated, and it

23 has been confirmed in the most recent Mrdja opinion, I believe, that was

24 just issued two days ago, that the leadership role as a civilian

25 political leader per se does not give rise to an aggravating

Page 243

1 circumstance; that it is to be evaluated on the facts of each particular

2 case, and that's the way to do it. They have cited cases where it was

3 used as an aggravating factor, but I think that you have to look at the

4 particular facts of this case.

5 I suggest to the Tribunal that the proper way to look at this is

6 was he a leader of the criminal enterprise? It strikes me as inherently

7 reasonable to find an aggravating factor where one is leading criminal

8 enterprise. However, if one is merely a political leader and only a

9 participate in that enterprise, that that should not be construed as an

10 aggravating factor.

11 Perhaps the most significant of the mitigating factors is

12 substantial cooperation. It presupposes a guilty plea. It presupposes

13 at least a claim of remorse. I think it's brilliant jurisprudence that

14 the Trial Chamber has to make an independent determination and be

15 satisfied that that remorse is sincere. It recognises that one who

16 cooperates of course has to enter a guilty plea, but may claim remorse

17 for the purposes of fostering the cooperation, and when you look at it

18 closely you can determine that it's simply a sham.

19 Substantial cooperation, again; I don't think we need to have any

20 time consumed discussing the significance of that. But in weighing the

21 sentence, all other factors being equal, if the Court chooses to compare

22 the Plavsic situation to Babic, and that of course is totally within your

23 discretion -- and each case is unique. I don't mean to undermine or

24 suggest that that principle should not be applied -- if that is to be

25 applied, she refused. Now, you can't make that an aggravating

Page 244

1 circumstance. That's discussed in the jurisprudence, and indeed an

2 individual has a right to do that.

3 If I were the Prosecutor, I would have argued that that

4 undermined everything else. I don't want to throw stones at someone

5 that's not here, but I would ask you to weigh very heavily that Mr. Babic

6 did it all. His sincerity is complete. He implicated himself, told

7 everything he knew. When you have to do these vague calculations of

8 weighing what is right in terms of sentencing, and there is to be some

9 proportionality for the Court to maintain its proper authority and

10 legitimacy, you can't have random sentences, that's obvious, then his

11 sentence has to be substantially less than hers. Of course, I don't

12 really know what "substantially" means in terms of real numbers, but it

13 seems that that difference ought to weigh very heavily in your decision.

14 Mr. Whiting yesterday and Ms. Uertz-Retzlaff today alluded to --

15 just let me refresh your recollection with Mr. Whiting's words because I

16 think they were well put and apt. "It is an uncomfortable reality in the

17 search for truth that only by hearing the testimony of those who were on

18 the inside, those who played a role in the crimes themselves that the

19 full truth of what happened and who was responsible will be known. For

20 these reasons, the steps that the accused has taken should be encouraged

21 by this Court. Others in his position should be encouraged and should

22 get the message that it is important and valuable and worthwhile to step

23 forward, take responsibility, and tell the truth." The sentence you

24 impose on Milan Babic will convey that message.

25 The collateral effect of that sentence will be to say "This is

Page 245

1 how we view you. This is how valuable we believe this is." And it goes

2 without saying, the less harsh the sentence, the more people we can

3 encourage, the easier it will be for people to come forward.

4 Now, it cannot be stated enough: Any leniency this Tribunal

5 deems appropriate to give him does not undermine the gravity of the

6 offence, does not for a moment suggest that he's not responsible. It is

7 a matter of grace. All of these mitigating factors are a matter of

8 grace. That's clearly defined.

9 In closing, I just want, if I may, to cite words that are better

10 than mine. Last Tuesday, the opinion in the Deronjic case was published.

11 There was a separate opinion by Judge Mumba. She said: "International

12 justice in cases similar to these in this Tribunal is not about unfair

13 retribution. If that were the case, humanity should forget about

14 reconciliation and its offshoot, peace. It is my humble view that this

15 Tribunal is not about vengeance, using the pen as the firearm, much as

16 the victims's plight has been acknowledged. That would be erroneous.

17 Such a practice would amount to accepting the erroneous view that you

18 can conquer hatred with hatred. This in my view does not work.

19 Vengeance may be manifested in terms of a harsh sentence for an accused

20 person who has pleaded guilty. In my humble opinion, rehabilitation

21 after turmoil may serve to reduce the incidents of political instability

22 and conflict."

23 I thank the Tribunal for the opportunity to participate in this

24 historic event. I thank the Office of the Prosecutor for the honourable

25 way in which they have conducted themselves. And I thank Mr. Babic for

Page 246

1 the honour of having been able to represent him.

2 I hope that my remarks can be of some assistance to you in your

3 difficult task.

4 JUDGE ORIE: Thank you, Mr. Fogelnest.

5 I would have one question for you. You referred to the recent

6 decision in the Mrdja case in respect of the acceptance of civilian

7 political leader position as an aggravating circumstance. But were

8 you --

9 MR. FOGELNEST: Well, once again, Your Honour, I'm wrong. It is

10 not the Mrdja case --

11 JUDGE ORIE: I thought you might --

12 MR. FOGELNEST: It's the Deronjic case, and it's paragraph 195.

13 JUDGE ORIE: I thought it would be. But just to be sure of that,

14 I asked you.

15 This, then, almost concludes this sentencing hearing.

16 Mr. Babic, it was all about you, the sentence this Chamber will

17 have to determine in respect of you. Is there anything you'd like to add

18 to what has been said already? And a lot has been said.

19 THE ACCUSED: [Interpretation] Thank you, Your Honour. I've said

20 that I'm here, and I am in your hands. Thank you.

21 JUDGE ORIE: Thank you, Mr. Babic.

22 Then finally, we still have to take a decision on the admission

23 of the exhibits tendered by the Prosecution. And no exhibits during this

24 hearing have been tendered by the Defence.

25 Mr. Usher, would you please read the numbers, the PS numbers,

Page 247

1 what they stand for, so that we can pronounce a decision on that. And

2 may I, before this is done, ask the Prosecution whether the corrected or

3 at least the improved and paragraph-numbered version of the statements is

4 already presented or not yet.

5 MS. UERTZ-RETZLAFF: Ms. Karper has here the corrected versions.

6 JUDGE ORIE: Yes. Could she perhaps, please, then give them -- I

7 would ask the assistance of the usher to have them be given to the

8 Registrar.

9 They would then replace the... Yes, they replace the statements

10 as we had them before. I see that now in the new version, they also got

11 new ERN numbers because they are different. Could you then,

12 Mr. Registrar, please read what has been tendered so we can give a

13 decision.

14 THE REGISTRAR: Your Honours, the exhibits tendered yesterday by

15 the Prosecution are as follows:

16 Exhibit PS1 are the redacted statements of five witnesses.

17 Exhibit PS2 is a map of the RS from 1993. Exhibit PS2.1A is the

18 translation of the text of the map. And the Exhibit PS2.1B is the text

19 of the B/C/S version of the map.

20 Exhibit PS3 is a report of Colonel Ivan Grujic, titled "Missing

21 People, Displaced People, and People Killed in Republic of Croatia during

22 the War Years, 1990 to 1992."

23 Exhibit PS4 are the selection of quotations of the accused Milan

24 Babic from his testimony and interviews with the OTP.

25 Exhibit PS5 is the transcript of testimony of Peter W. Galbraith

Page 248

1 in the case numbered IT-02-54-T, the Prosecutor versus Slobodan

2 Milosevic, on the 25th and 26th of June 2003.

3 Exhibit PS6 are the list of documents admitted through Mr. Milan

4 Babic in case numbered IT-02-54-T, the Prosecutor versus Slobodan

5 Milosevic.

6 Exhibit PS7 is the CD-ROM containing complete transcript of

7 Mr. Milan Babic's testimony in case number IT-02-54-T, the Prosecutor

8 versus Slobodan Milosevic, and interviews with the OTP.

9 And finally, Exhibit PS8 is the expert report of Dr. Mladen

10 Loncar, including his curriculum vitae.

11 JUDGE ORIE: Yes. PS1 is not the version tendered yesterday, but

12 PS1 is the version that has been presented to the Registry today. That

13 is a new version in which the paragraph numbering is the same in all

14 languages.

15 Since I do not expect, but I didn't hear any objections, these

16 exhibits are admitted into evidence.

17 MS. UERTZ-RETZLAFF: Your Honour, just one point. The Exhibit 6

18 should also include a list of documents that were --

19 JUDGE ORIE: Disclosed, I think, not only --

20 MS. UERTZ-RETZLAFF: It's actually two lists of documents, one

21 used in the interview and one during the testimony.

22 THE REGISTRAR: Thank you, Madam Prosecutor. The corrections

23 have been noted.

24 JUDGE ORIE: This is then corrected. And the Exhibit 6

25 consisting of two lists is admitted into evidence.

Page 249

1 MS. UERTZ-RETZLAFF: And there is one more point, and it's an

2 omission on my part. Yesterday already, Dr. Loncar gave me the book

3 title that he mentioned, but unfortunately I have it on my desk. And he

4 also mentioned that he would send on Monday a fax with additional

5 literature references to his interview --


7 MS. UERTZ-RETZLAFF: -- method and we will provide a further

8 submission just giving those titles and the book title on Monday.

9 JUDGE ORIE: Yes. If the Defence would agree with this

10 proceedings, that means that what is submitted in writing to the Chamber

11 could be taken into consideration when we are considering what sentence

12 should be imposed. And of course, there is an opportunity to protest

13 against it if it contains anything unexpected and unwished.

14 MR. MUELLER: We agree to that.

15 JUDGE ORIE: Thank you very much, Mr. Mueller.

16 That means that we are now at the conclusion of this sentencing

17 hearing. The Chamber will give its sentencing judgement in due course

18 and will issue a scheduling order prior to that. I cannot possibly tell

19 you how much time it will take. We'll seriously consider whatever the

20 parties have been brought to our attention, and we'll try to move on as

21 quickly as possible.

22 The Chamber stands adjourned.

23 --- Whereupon the Sentencing Hearing adjourned

24 at 12.48 p.m.