1 Tuesday, 29 June 2004
2 [Sentencing Judgement]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 11.03 a.m.
6 JUDGE ORIE: Madam Registrar, would you please call the case.
7 THE REGISTRAR: Good morning, Your Honours. Case Number
8 IT-03-72-S, the Prosecutor versus Milan Babic.
9 JUDGE ORIE: Thank you, Madam Registrar. Good morning to
10 everyone. May I have the appearances. Prosecution first, please.
11 MR. UERTZ-RETZLAFF: Good morning, Your Honour. For the
12 Prosecution, Alex Whiting and my name is Hildegard Uertz-Retzlaff.
13 JUDGE ORIE: Thank you. And for the Defence.
14 MR. MUELLER: Good morning, Your Honour. Peter Michael Mueller
15 for the Defence.
16 JUDGE ORIE: Good morning, Mr. Babic, can you hear me and everyone
17 else who speaks in a language you understand?
18 THE ACCUSED: [Interpretation] Yes, I do, Your Honour.
19 JUDGE ORIE: Thank you, Mr. Babic.
20 The Trial Chamber is sitting today to deliver the sentencing
21 judgement in the case of Milan Babic. What follows is a summary of the
22 written judgement and does not form part of it. The written judgement
23 will be made available to the parties and to the public at the end of this
25 I will now briefly set out the context and the facts of the case
1 as well as the factors which the Trial Chamber considered in imposing the
3 The procedural background: Milan Babic was born in 1956 in Kukar
4 in Croatia. He is married with two children and is a dentist by
5 profession. In October 2001, Babic initiated contact with this Tribunal
6 after learning that he had been named as a co-perpetrator in the Croatian
7 indictment issued in the case of Slobodan Milosevic in September 2001.
8 Babic agreed to be interviewed by the Prosecution and to testify in the
9 Milosevic case.
10 An indictment against Babic was confirmed in November 2003. The
11 indictment charged him with persecution, murder, cruel treatment, wanton
12 destruction of villages or devastation not justified by military
13 necessity, and destruction not justified by military necessity and
14 destruction of willful damage to institutions dedicated to education or
15 religion. The charges were based on events which took place in Croatian
16 Krajina from August 1991 to February 1992.
17 In November 2003, Babic surrendered to the Tribunal. Two months
18 later he filed a plea agreement jointly with the Prosecution. According
19 to this agreement, Babic would admit to having aided and abetted the crime
20 of persecutions, committed by a joint criminal enterprise, as charged in
21 count 1 of the indictment. The goal of the joint criminal enterprise was
22 the forcible permanent removal of Croat and other non-Serb populations
23 from approximately one-third of Croatia, in order to transform the
24 acquired territory into a Serb-dominated state through the commissions of
25 crimes within the jurisdiction of the Tribunal.
1 In exchange for Babic's guilty plea and his ongoing cooperation,
2 the Prosecution would recommend that he be given a sentence of no more
3 than 11 years of imprisonment.
4 The plea agreement was modified a few days later when Babic agreed
5 to revise his plea of guilty to that of a co-perpetrator in the
6 aforementioned joint criminal enterprise instead of an aider and abettor.
7 The Prosecution's recommendation of a sentence of no more than 11 years'
8 imprisonment did not change.
9 Babic's plea of guilty to count 1 of the indictment was accepted
10 by the Trial Chamber on 28 January 2004. The remaining counts of the
11 indictment were withdrawn with the leave of the Chamber.
12 I now come to the facts underlying the guilty plea.
13 In the period August 1991 to February 1992, Serb forces attacked
14 and took control of the towns, villages, and settlements in the Krajina
15 region of Croatia. After the takeover, the Serb forces, in cooperation
16 with the local Serb authorities, commenced persecutions to drive the Croat
17 and other non-Serb populations from the region. The persecutions caused
18 the murder or extermination of hundreds of Croat and other non-Serb
19 civilians in Dubica, Cerovljanji, Bacin, Saborsko, Poljanak, Lipovaca, and
20 in other places. It also caused the routine and prolonged imprisonment of
21 hundreds of Croat and other non-Serb civilians in inhumane conditions in
22 the old hospital and the JNA army barracks in Knin, and the deportation or
23 forcible transfer of thousand of Croat and other non-Serb civilians from
24 the Krajina region. There was as well deliberate destruction of homes and
25 other public and private property, including objects of cultural value to
1 Croat and other non-Serb populations.
2 In December 1991, the Serb authorities proclaimed the territory
3 that had thus come under their control as the "Republic of Serbian
5 As for Babic, in February 1990, he had become a prominent
6 political figure in the Serbian Democratic Party (SDS) in Croatia. He
7 held a senior position in the SDS municipal committee in Knin. In July
8 1990, he became President of the Serbian National Council. In February
9 1991, he became to advocate the creation of an independent Serbian state
10 in the so-called Serb Autonomous Region of Krajina. Then in April 1991,
11 Babic was elected the President of the Executive Council of the
12 self-declared region, and in May 1991 became President of its
13 administration or government.
14 That summer, Babic became commander-in-chief of the self-declared
15 region's armed forces. Finally, in December 1991, he became President of
16 the so-called Republic of Serbian Krajina. During the relevant period, he
17 was, in other words, one of the highest-ranking and most influential
18 political Serb leaders in the region.
19 Babic has admitted that from August 1991 to February 1992, he
20 contributed to the persecution of Croat and other non-Serb populations in
21 the following ways:
22 He formulated, promoted, participated in, and encouraged the
23 development and implementation of policies which advanced the objective of
24 the joint criminal enterprise, which was to forcibly and permanently
25 remove the majority of Croat and other non-Serb populations from
1 approximately one-third of Croatia;
2 He was instrumental in the establishment, support, and maintenance
3 of the bodies that ruled the so-called Serb Autonomous Region of Krajina
4 and that implemented the objective of the joint criminal enterprise;
5 He assisted in the re-organisation and recruitment of the
6 Territorial Defence (TO) forces, that participated in the crimes;
7 He cooperated with the commander of the so-called "Martic Police,"
8 who according to Babic was involved in the commission of crimes;
9 He participated in the provision of financial, material,
10 logistical, and political support for the military takeover of
12 He requested the assistance or facilitated the participation of
13 the JNA army forces in establishing and maintaining control of the
15 He made ethnically inflammatory speeches at public events and in
16 the media, propaganda which helped the unleashing of violence against the
17 Croat population and other non-Serbs;
18 Finally, he encouraged and assisted in the acquisition of arms and
19 their distribution to Serbs to further the campaign of persecutions.
20 Babic admitted that he knowingly and intentionally participated in
21 the campaign of persecutions. He was aware that crimes such as
22 mistreatment in prisons, deportations, forcible transfer, and the
23 destruction of property, as described in the indictment, were being
25 With respect to the murders charged in the indictment, Babic
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 admitted that he knew that civilians were killed in the course of the
2 forcible removal of non-Serb civilians, and that such killings were the
3 likely outcome of the campaign of persecutions. However, he maintained
4 that he had no knowledge of the specific murders referred to in the
6 Babic further admitted that the crime of persecution was committed
7 within a joint criminal enterprise, and that he substantially participated
8 in that enterprise as a co-perpetrator.
9 The Trial Chamber has considered the purposes of punishment in
10 light of the mandate of the Tribunal. Retribution, deterrence, and
11 rehabilitation have been considered the most relevant purposes in the
12 context of the Tribunal.
13 The Trial Chamber has given primary consideration to the gravity
14 of Babic's crime, and has also considered Babic's individual
15 circumstances, including aggravating and mitigating circumstances.
16 Babic does not deny the seriousness of the crimes committed.
17 Virtually the whole of the Croat and non46 Serb population was expelled
18 from the region in question by forcible removal or by being caused to flee
19 through fear of imminent attack. More than 200 civilians, including women
20 and elderly persons, were murdered, and several hundred civilians were
21 confined or imprisoned in inhumane conditions. The crime was
22 characterised by ruthlessness and savagery and had a severe impact on the
23 victims and their relatives. Their suffering is still significant.
24 The Trial Chamber is convinced of the extreme gravity of the crime
25 to which Babic pleaded guilty. A participant in a crime of this gravity
1 should expect a sentence of commensurate severity.
2 In relation to aggravating circumstances, the Prosecution notes
3 that "leadership positions which are similar to the accused position have
4 been found to be an aggravating circumstance." The Defence submits that
5 it would be inappropriate to use Babic's conduct as a political leader to
6 establish both criminal liability and an aggravating circumstance. The
7 Trial Chamber agrees that the same element should not be assessed once as
8 a constitutive element of the crime and a second time as an aggravating
10 However, the criminal liability of Babic does not stem from his
11 position as a superior in the hierarchy. The position of a political
12 leader is not required for participation in a joint criminal enterprise,
13 nor is it a precondition for the crime of persecution. Thus, it is not an
14 element establishing criminal liability, and the Trial Chamber has not
15 used it as such.
16 The reasons for holding that Babic's leadership positions should
17 indeed be considered in aggravation of sentence are twofold. First, as a
18 regional political leader, he enlisted resources to further the joint
19 criminal enterprise, and by his speeches and media exposure prepared the
20 ground for the Serb population to accept that their goals were achievable
21 through acts of persecution. Second, Babic's involvement through the
22 positions he held gained momentum over time: By allowing the campaign of
23 persecutions to continue, he amplified its consequences.
24 The Trial Chamber thus finds that the fact that Babic held and
25 remained in high political positions throughout the course of the crime of
1 persecutions counts as an aggravating circumstance.
2 As for mitigating circumstances, the parties submitted that the
3 following mitigating circumstances apply in this case: Babic's
4 substantial and continued cooperation with the Prosecution; his voluntary
5 appearance before the Tribunal to stand trial; his guilty plea and
6 acceptance of responsibility; and his remorse. The Defence submits, in
7 addition, that Babic's conduct subsequent to the crimes, and his personal
8 and family circumstances, are mitigating circumstances. The Prosecution
9 proposes as additional mitigating circumstances Babic's limited
10 participation in the acts of violence, his continued contribution to
11 reconciliation, and his prior character.
12 In relation to Babic's admission of guilt, the Trial Chamber is
13 satisfied, for the diverse reasons given in the judgement, that it must be
14 considered as an important mitigating factor.
15 Moreover, the Trial Chamber takes account of Babic's extensive
16 cooperation with the Prosecution, at great risk to his family and his own
18 The Trial Chamber also takes into account, in mitigation, Babic's
19 voluntary surrender to the Tribunal.
20 The question of the mitigatory effect of Babic's supposedly
21 limited participation in the crimes charged is moot, because the
22 Trial Chamber does not accept that Babic's role in the joint criminal
23 enterprise was as limited as the parties suggest it was. While true that
24 Babic was not the prime mover of the campaign of persecutions, the
25 Trial Chamber recalls that Babic chose to remain in power and provided
1 significant support for the persecutions against non-Serb civilians, by
2 amongst other things participating in the provision of financial,
3 material, logistical, and political support necessary for the military
4 takeover of territories in Croatian Krajina, by making ethnically
5 inflammatory speeches, and by encouraging and assisting in the acquisition
6 of arms and their distribution to the forces committing the crimes.
7 On the question of remorse, the Trial Chamber is satisfied that
8 Babic's expression of remorse is sincere and constitutes a mitigating
10 For reasons given in the judgement, Babic's family and personal
11 situations are also given some weight in mitigation.
12 On the other hand, the Trial Chamber does not accept that Babic's
13 character prior to the events in Croatia warrants any mitigation of
14 sentence. The crimes committed during the armed conflict in the former
15 Yugoslavia were mostly carried out by ordinary citizens. There's nothing
16 exceptional about Babic's prior character that would call for special
18 As for Babic's conduct subsequent to the crime, the Trial Chamber
19 is not satisfied that Babic took measures to, for example, alleviate the
20 suffering of victims. He did indeed cooperate with the Prosecution and
21 admits his responsibility, but these are factors that have already been
23 In conclusion, the Trial Chamber finds that Babic was a regional
24 political leader who sought to promote what he considered the interests of
25 his people to the detriment of Croats and other non-Serbs through the
1 commissions of serious violations of international humanitarian law. He
2 didn't just fail to stand against injustice, he participated in the joint
3 criminal enterprise. By admitting his guilt in relation to the armed
4 conflict in Krajina in 1991 and 1992, Babic demonstrated some courage.
5 Yet, the Trial Chamber is not convinced that he has at all times
6 recognised the full significance of the role he played in Croatia in that
8 The Trial Chamber finds that the recommendation made by the
9 Prosecution of a sentence of imprisonment of no more than 11 years does
10 not achieve the purposes of punishment, nor does it do justice.
11 Mr. Babic, would you please rise.
12 [The accused stands up]
13 JUDGE ORIE: Having considered the arguments and the evidence
14 present by the parties, the Trial Chamber hereby sentences you to 13 years
15 of imprisonment. You are entitled to credit for 211 days served in
16 detention prior to this day. You shall remain in the custody of the
17 Tribunal until such time as arrangements for your transfer to the State in
18 which you will serve your sentence have been finalised.
19 This brings the session to a close.
20 --- Whereupon the hearing adjourned
21 at 11.24 a.m.