Tribunal Criminal Tribunal for the Former Yugoslavia

Page 96

1 Wednesday, 3 September 2003

2 [Sentencing Hearing]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.30 p.m.

6 JUDGE ROBINSON: Will the Registrar call the case, please.

7 THE REGISTRAR: Yes. Good afternoon, Your Honours. This is Case

8 Number IT-02-65/1-S, the Prosecutor versus Predrag Banovic.

9 JUDGE ROBINSON: Thank you. And appearances?

10 MS. CHANA: Please, Your Honours. I appear for the Prosecution.

11 My name is Sureta Chana. And I am assisted by Ruth Karper, the case

12 manager.

13 MR. BABIC: [Interpretation] Your Honours, my name is Jovan Babic.

14 I'm an attorney from Serbia and Montenegro. And today I appear for the

15 accused, Predrag Banovic.

16 JUDGE ROBINSON: Thank you. The accused Predrag Banovic entered

17 into a plea agreement with the Prosecutor and pleaded guilty to count 1 of

18 the indictment at a hearing on June 26th. At that hearing, the Chamber

19 accepted the plea and entered a finding of guilt. The purpose of this

20 hearing therefore is to determine a sentence.

21 We begin with the Prosecutor, but I remind you that we have your

22 briefs, and your submissions need not be unduly long.

23 Ms. Chana.

24 MS. CHANA: With the Court's permission, the Prosecutor considers

25 it its duty to bring to the Court's attention certain issues which have

Page 97

1 been raised by the Defence in their sentencing brief. Although as Your

2 Honour stated the accused pleaded guilty and conviction has been entered,

3 there are some assertions in the sentencing brief which may tend to

4 suggest that the plea was not an informed one or indeed it was not

5 unequivocal. To that end, Your Honours, we would like to bring the

6 Court's attention to the contents of paragraph 33 and paragraphs 46. To

7 the extent that the assertions made therein can be considered to be

8 inconsistent with the guilty plea or an informed plea of guilty. The

9 question, therefore, is now whether the comments now being made may

10 indicate that the guilty plea was somehow not valid at the time it was

11 made.

12 The Prosecution stands guided by the Court in that regard. If I

13 may read out the two paragraphs to which I'm alluding, Your Honours.

14 JUDGE ROBINSON: Yes, let's deal first with 33.

15 MS. CHANA: Yes. Paragraph 33, Your Honours, inter alia says,

16 and that is the second half of the paragraph, I'll read from there:

17 "Although he's of the opinion that he did not kill anyone while beating

18 him, he admitted that he had reason to believe that the injuries that the

19 participants in the crime inflicted to prisoners resulted in death of a

20 victim, so he admitted that he was capable of committing a crime."

21 Your Honours, I now turn to paragraph 46. Again, I read from the

22 second half of the paragraph. The accused did not find a way to resist

23 the power of his superiors nor the force of those who wilfully barged

24 into the camp, committed crimes, and forced him and others to commit

25 crimes, too.

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1 JUDGE ROBINSON: So what is the interpretation that you put on

2 that?

3 MS. CHANA: Your Honour, the accused appears to be raising the

4 defence of duress. While we appreciate that duress is not a defence for

5 wilfully taking life, but it could be a defence for the beating charges.

6 And in the accused, having raised that defence of duress, or it tends to

7 that suggest that he is raising such a defence would compromise the plea

8 to some extent.

9 JUDGE ROBINSON: You're familiar with the Erdemovic decision.

10 MS. CHANA: Yes, I am, Your Honour. It's the very same issue that

11 arose in that, amongst others, Your Honour.

12 JUDGE ROBINSON: The essence of that decision, as I understand it,

13 is that duress is not a complete defence, but that it may be a relevant

14 factor in mitigation of sentence.

15 MS. CHANA: Yes, it may be a relevant factor in mitigating in

16 taking life, but whether it's a mitigating factor alone in respect of the

17 beatings is still subject to an appellate decision, Your Honour, which I

18 believe we have still not got a definitive stand on that.

19 JUDGE ROBINSON: What decision that?

20 MS. CHANA: Erdemovic decision, Your Honour.

21 JUDGE ROBINSON: You're saying that Erdemovic was not definitive

22 as to the question of beating?

23 MS. CHANA: Yes, in fact, the Erdemovic decision was very much

24 confined to a soldier, and superior orders. And they said while it could

25 be a defence for a soldier to take -- that he could not take him alive,

Page 99

1 it may not be to the extent of beating that duress would not be a -- could

2 be a defence.

3 JUDGE ROBINSON: I myself don't see why it would be significantly

4 different, why the law would be significantly different in relation to a

5 civilian. But do you have any more submissions on that before we go to

6 paragraph 33?

7 MS. CHANA: No. In respect of paragraph 46, Your Honours, those

8 would be my submissions. And of course the Prosecution stands always

9 guided by the Court, but this is just to alert the Court that it satisfies

10 itself that the plea, in fact, is a proper one. We ourselves consider it

11 to be so, and subject to confirmation of Mr. Babic that it is, and his

12 client has been apprised that in fact -- it is a properly entered plea, we

13 are prepared to proceed on that basis.

14 JUDGE ROBINSON: You say that you are satisfied that the plea is a

15 proper one, notwithstanding what you see as some ambiguity in paragraph

16 46.

17 MS. CHANA: Yes, Your Honour, it is ambiguity, and it is our duty

18 to bring it to the attention of the Court. A plea must be unqualified and

19 reserved unequivocal and informed. If there's anything which tends to

20 suggest that it was neither one of these elements, then the Court has to

21 satisfy itself, Your Honours, that it is properly entered. It is simply

22 our duty to bring it to the attention of the Court.

23 JUDGE ROBINSON: And I think you're quite correct in doing that.

24 MS. CHANA: That's right, Your Honour.

25 JUDGE ROBINSON: Can we look at 33 now.

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1 MS. CHANA: Yes. Sorry, Your Honour, I'm just getting to the

2 page.

3 Again, this somehow qualifies his guilty plea, Your Honour, when

4 he says, or does not make it unequivocal, that he's of the opinion he did

5 not kill anyone, although he has accepted responsibility in his guilty

6 plea of having murdered or participating in the beating of five victims

7 who died as a result of those beatings. But he then says he's capable of

8 committing a crime. Your Honour, once again, we simply bring this to the

9 Court's attention. And if the Court still finds that it is a proper

10 plea -- I mean, it is -- the plea was taken after an agreement which had

11 been entered into by the Prosecution and the Defence. The factual basis

12 was agreed upon. We are informed by Mr. Babic that he fully apprised his

13 client of the consequences of this plea.

14 JUDGE ROBINSON: Before I ask Mr. Babic to respond, just go back

15 to paragraph 46, which I think --

16 MS. CHANA: Yes, Your Honour.

17 JUDGE ROBINSON: -- Is a more substantial issue --

18 MS. CHANA: Yes, it is, Your Honour.

19 JUDGE ROBINSON: -- Than 33. The heading of that -- of those

20 paragraphs is the lowest rank and subordinated position in the police

21 authority.

22 MS. CHANA: Yes, Your Honour.

23 JUDGE ROBINSON: Is it not the case that what is being done here

24 is to suggest that by virtue of the low rank of the accused, and I believe

25 at another place, there is also a reference to his low intelligence --

Page 102

1 MS. CHANA: Yes, Your Honour.

2 JUDGE ROBINSON: -- That he was somehow subject or susceptible to

3 influence, and that this is something which the accused would want us to

4 consider in sentence. But let me ask Mr. Babic to comment, first on 46.

5 And you were the counsel in Erdemovic.

6 MR. BABIC: [Interpretation] Yes, Your Honour. Due to

7 circumstances, Your Honour, I was counsel in the Erdemovic case for the

8 Defence, and I do have experience which is valid in this case. In no way

9 did the Defence intend, nor does it wish to bring into question the plea

10 agreement made between the accused and the Prosecution. The titles, in

11 our submission, suggest quite clearly the interpretation I wish to place

12 upon each fact and each circumstances. Never did we say that this could

13 be either a partial or complete defence, but simply a mitigating

14 circumstance that we suggest the Chamber consider.

15 The same applies to paragraphs 33 and 46. I put the accused

16 Banovic within the context of the Keraterm camp bearing in view his youth,

17 his psychological maturity, and the impossibility for him to discern, to

18 tell what is good and what is bad, and the way he acted. It is quite

19 clear that what we are asking is that the Chamber take this as a

20 mitigating circumstance.

21 JUDGE ROBINSON: Thank you.

22 [Trial Chamber confers]

23 JUDGE ROBINSON: Thank you, Mr. Babic. The Chamber, having heard

24 submissions from the Prosecutor for which the Chamber is grateful, and

25 from Mr. Babic concludes that the plea is informed and is not equivocal.

Page 103

1 So thank you, Ms. Chana. You can proceed.

2 MS. CHANA: Thank you, Your Honours. I will now with

3 Your Honours permission proceed with the sentencing arguments.

4 Predrag Banovic has been convicted following a plea of guilty of

5 one count of persecution. The Trial Chamber has before it the plea

6 agreement dated 21st June, 2003, which contains a statement which contains

7 the factual basis of the crime of which Predrag Banovic has been

8 convicted. I do not propose to repeat all those facts today, Your

9 Honours. But in brief, Predrag Banovic performed duties as a guard at the

10 Keraterm camp. Keraterm camp was one of the three major camps established

11 by the Prijedor municipal Crisis Staff in the municipality of Prijedor.

12 The camp began operating on 23rd May, 1992, and held as many as 1.500

13 detainees. Persons detained in the Keraterm camp between the end of May

14 to the time when the camp closed in mid-August 1992 were primarily Bosnian

15 Muslims and Bosnian Croat males of military age, whilst all the guards

16 were Serbs.

17 These camps operated in a manner designed to ill-treat and

18 persecute non-Serbs from Prijedor and other areas with the sole aim of

19 ridding the territory of non-Serbs or of subjugating those who remained.

20 Detention of non-Serbs in the camps was a prelude to killing them or

21 transferring them to non-Serb areas. Conditions at the camp were brutal,

22 inhumane, and degrading, and resulted in the physical debilitation or

23 death of the detainees. Detainees were regularly subjected to severe

24 beatings, killings, and other forms of physical and psychological

25 mistreatment by camp authorities, as well as the so-called visitors to the

Page 104

1 camp. The single count of persecution of which Predrag Banovic has been

2 convicted has three components, Your Honour. First, it encompasses

3 Banovic's participation in five murders, the victims being detainees in

4 the camp, who succumbed to beatings in which Predrag Banovic participated.

5 Secondly, it encompasses the beatings of 22 other detainees at

6 Keraterm camp in which Predrag Banovic participated. Thirdly, it

7 encompasses inhumane conditions, including humiliation, harassment, and

8 psychological abuse suffered by non-Serbs at Keraterm camp during the

9 course of their confinement therein.

10 Your Honours, the sentencing brief filed by the Prosecution on 17

11 July puts forward the Prosecution's arguments and position as to sentence

12 in line with the plea agreement and factual basis as agreed by the

13 Prosecution and the Defence. The Prosecution recommends to the Trial

14 Chamber that it impose a sentence of eight years. Your Honours, both the

15 Prosecution and the Defence acknowledge that the Trial Chamber is not

16 bound by the sentence recommended by the Prosecution. Nevertheless, it

17 can form the basis of your deliberations. The Prosecution submits that is

18 the appropriate sentence in all the circumstances of this particular case.

19 Before addressing the sentencing factors specifics to this case, I would

20 make a number of general submissions.

21 First, I would submit that there's always an overriding

22 consideration that sentencing must promote the purposes of the criminal

23 law. International law, like national legal systems, criminalises certain

24 conduct for the protection of common human values and a commitment to the

25 accepted norms of civilised behaviour shared and upheld by the

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1 international community. Sentencing promotes that purpose by deterring

2 violations of the criminal law. In the Celebici appeal judgement at

3 paragraph 799 to 803, the Appeals Chamber has accepted the general

4 importance of deterrence as a consideration in sentencing for

5 international crimes, subject, of course, to a proviso that this factor

6 must not be accorded undue prominence.

7 Secondly, the Appeals Chamber has held that retribution is an

8 important factor in sentencing. In the Aleksovski appeal judgement at

9 paragraph 185, the Appeals Chamber explained that the concept of

10 retribution, and I quote: "It is not to be understood as fulfilling a

11 desire for revenge, but as duly expressing the outrage of the

12 international community of these crimes. Accordingly, a sentence of the

13 International Tribunal should make plain the condemnation of the

14 international community of the behaviour in question and show that the

15 international community was not ready to tolerate serious violations of

16 international humanitarian law and human rights."

17 Your Honours, the Prosecution respectfully submits that this

18 purpose of signalling the international community's condemnation would be

19 undermined if sentences imposed by the Tribunal were lower than those

20 generally imposed by national courts. This could send a message, for

21 instance, that a killing of a person as a war crime or a crime against

22 humanity or as a part of genocide is less serious and morally less

23 reprehensible than an ordinary murder under national law. The true

24 position is contrary, and this should be reflected in sentencing.

25 My third general submission, Your Honours, relates to the fact

Page 107

1 that Predrag Banovic can be categorised as a low-level perpetrator, or the

2 so-called "small fish." It is acknowledged that as a guard,

3 Predrag Banovic did not hold any rank, and that when he was on duty, he

4 had no control over other guards and did not himself have power to punish

5 anybody. It is not contended that Predrag Banovic participated in the

6 formulation of the criminal policy of the Bosnian Serb leadership or that

7 he was responsible for the establishment of the Keraterm camp.

8 Your Honours, the Defence in its sentencing brief asks this Trial

9 Chamber to consider his low rank and subordinate position as a mitigating

10 factor and relies, and I quote: "On the jurisprudence of this Tribunal

11 for that assertion." With respect, we disagree. The Trial Chamber in the

12 Jelisic trial judgement at paragraph 133 pointed out: "Although the

13 crimes perpetrated during armed conflicts may be more specifically

14 ascribed to one or other of the principal political or military officials,

15 they could not achieve their ends out the enthusiastic help or

16 contribution, direct or indirect, of small fish such as the accused in

17 that case." On appeal in that case, the Appeals Chamber rejected a

18 Defence argument that the Trial Chamber had erred in taking this into

19 account. Your Honours, the establishment of the Keraterm camp was part of

20 a joint criminal enterprise of great magnitude which required of necessity

21 many participants and institutions for its successful accomplishment and

22 each participant and institution from the highest to the lowest level of

23 authority contributed to its success. The plan's success depended on the

24 engagement of Serb judicial, military, and security forces at all levels.

25 I refer in this respect to paragraph 3 of the agreed facts. The

Page 108

1 objective of joint criminal enterprise was the permanent removal by force

2 or other means of non-Serb inhabitants from the territory of the planned

3 Serbian state within Bosnia and Herzegovina. Predrag Banovic was an

4 essential cog in the machinery of this large-scale plan. Without the

5 willing participation of low-level perpetrators like Predrag Banovic who

6 participated willingly in the horrific crimes, no plan of such magnitude

7 as we have here would be possible to achieve.

8 The Prosecution submits that sentencing must reflect the fact that

9 even the lowest level perpetrators are essential to the commission of

10 large-scale crimes, and they cannot escape legal or moral culpability by

11 pleading that they were only one of many who were caught up in events.

12 JUDGE ROBINSON: Please go ahead.

13 MS. CHANA: Predrag Banovic knew of the system of ill treatment in

14 the Keraterm camp. He intended to further this common concerted system of

15 ill treatment. With that intention he committed the crimes of which he

16 has been now convicted. The commission of these crimes by him contributed

17 significantly to the joint criminal enterprise established at the camp.

18 All of this, Your Honours, is reflected in paragraph 6 of the agreed

19 facts.

20 Your Honours, there can be no valid suggestion that he was acting

21 under any form of duress or otherwise than as a completely willing

22 participant. The sentence must reflect the fact that he was a knowing and

23 significant contributor to extremely serious crimes. The sentence should

24 equally make plain the condemnation of the international community of such

25 behaviour of small fish and make it clear to any potential future

Page 109

1 perpetrator that such crimes will not pass unnoticed in the confusion of

2 armed conflict and will not be ignored by the international community as a

3 mere de minimus contribution to the large-scale destructive consequences

4 of the armed conflict as a whole.

5 I turn now to the sentencing factors specific to this case. These

6 are dealt with in the Prosecution sentencing brief, and I merely refer to

7 these. The crime in this case, which includes participation in five

8 murders and the beating of 27 other victims, are inherently very grave.

9 Murder in any legal system is one of the most serious crimes that a person

10 can commit. As to the beatings, these were not mere assaults; rather,

11 these beatings contributed in the large part to the atmosphere of terror

12 in Keraterm camp and caused both serious physical and mental harm to the

13 victims and mental harm to those who witnessed such events.

14 Keraterm camp, Your Honours, has been referred to as a collection

15 centre or a camp. It is of no relevance what term is used to describe it.

16 However described, it was brutal and dehumanising for all the prisoners

17 who were there. Powerless and vulnerable, at the mercy of the camp guards

18 and the commanders which ran the camp with brutality. The Bosnian Muslims

19 and the Bosnian Croats, prisoners at the Keraterm camp, were kept in a

20 state of constant physical and psychological terror. They were powerless

21 and at the mercy of the guards and commanders.

22 Your Honours, Predrag Banovic has admitted being a guard at the

23 camp and in a position of authority over all the prisoners of the camp.

24 He had the ability to make their life as comfortable as he could under the

25 circumstances, or he could use his power over the prisoners to make their

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1 already miserable existence even worse. Predrag Banovic chose to make it

2 worse. The Rule 92 bis statements tendered by the Defence all state that

3 Predrag Banovic had the ability to assist prisoners, and indeed provided

4 selective help to some prisoners who had been his friends. Those

5 statements equally reflect that he held himself out to them as a person

6 who was in a position of sufficient authority to assist them in the event

7 they were subjected to harassment by the authorities.

8 These victims of Predrag Banovic are listed in the factual basis.

9 It is important to read out their names in open court as an acknowledgment

10 that ultimately these proceedings are about people who suffered at the

11 Keraterm camp. Your Honours, I say this because the Prosecution received

12 a call after Predrag Banovic pleaded guilty from a wife of a victim who

13 perished at the Keraterm camp and who was extremely distressed that there

14 was no acknowledgment of her husband's suffering and his death. With the

15 Court's permission, I would like to read out their names in Court as a

16 public acknowledgment of those victims.

17 JUDGE ROBINSON: Yes, go ahead.

18 MS. CHANA: Your Honours, I apologise in advance for my

19 pronunciation of the names, although I have tried. In the factual basis,

20 paragraph 15, Your Honours, these five victims died as a result of the

21 beatings inflicted upon them of which Predrag Banovic was a participant:

22 Jovo Radocaj, Drago Tokmadzic, Jasmin Zvjezdas, Dzevad Karabegovic,

23 Dzemal Mesic. Paragraph 16, Your Honours, are the victims and Predrag

24 Banovic took part in the beatings of them. These are: Ramadan Bahonjic,

25 Meho Kapetanovic, Faruk Hrncic, Enver Modronja, Adib Bajric,

Page 112

1 Uzeir Causevic aka Zejro, Saban Elezovic, Edin Ganic. The beating of

2 three brothers Alisic: Armin, Edo, and a third brother whose first name

3 is unknown. Ismet Garibovic, Vasif Mujkanovic, Mujo Sivac,

4 Sulejman Sivac, Mirsad Karagic, Esad Islamovic. A prisoner with the name

5 Mesic. Jasmin Ramadanovic, aka Sengin. Suad Halvadzic, and the beating

6 of Besim Fazlic, Mehmed Avdic, Muharem Sivac, Mirsad Crljenkovic. A

7 detainee called Smail. And lastly, the beating of Ismet Bajric.

8 Predrag Banovic, Your Honours, by pleading guilty to his crimes

9 and admitting his participation in the atmosphere of terror which

10 prevailed at the Keraterm camp serves as a catharsis for victims and all

11 people impacted by the war to start the healing process and to halt the

12 cycle of personal or group retaliation in the area of conflict, thereby

13 promoting reconciliation between the warring factions. While the Appeals

14 Chamber noted that retribution is the only factor in punishment does not

15 in itself bring justice and is inconsistent with the mandate of the

16 Security Council, which is the restoration and the maintenance of peace in

17 the territory of the former Yugoslavia, nevertheless the sentence ought to

18 be proportionate to the crimes themselves.

19 Your Honours, in the sentencing brief at paragraph 44 and 45 is

20 the only expression of remorse which has been expressed by

21 Predrag Banovic. The sentencing brief in those paragraphs suggests that

22 the accused has shown remorse which was true and sincere in his interview

23 to the investigators. Your Honours, since the interview has been filed

24 under a seal of confidentiality, may I suggest that we go into closed

25 session, please.

Page 113

1 JUDGE ROBINSON: Closed session, yes.

2 [Private session]

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10 [Open session]

11 MS. CHANA: In conclusion, therefore, Your Honours,

12 Predrag Banovic should be sentenced to neither more or less than he

13 deserves, and there is absolutely no question that he deserves the eight

14 years as recommended by the Prosecution. The very last point that I would

15 add is that if anything the sentence should not be looked at as a

16 precedent for other crimes of this nature, but the Prosecution does not

17 recommend a higher sentence in this case.

18 Unless there's anything else I can assist Your Honours on, those

19 are my submissions.

20 JUDGE KWON: Ms. Chana, was the eight years agreed at the time of

21 plea agreement?

22 MS. CHANA: Yes, Your Honours, it was.

23 JUDGE KWON: Let me understand: How come you came to a conclusion

24 on the same amount of time with such vast a difference in position?

25 MS. CHANA: I'm sorry, Your Honour, I'm not --

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1 JUDGE KWON: You're not suggesting eight years is not too short a

2 time.

3 MS. CHANA: No, Your Honours, I said exactly that he deserves the

4 eight years that we have agreed upon.

5 JUDGE KWON: Yes, thank you.

6 JUDGE ROBINSON: Ms. Chana, the only matter that hasn't been dealt

7 with, I think, in either brief is the issue of substantial cooperation.

8 And I'm not seeking submissions. If it doesn't arise, it doesn't arise.

9 But I just need to know.

10 MS. CHANA: Your Honour, the Prosecution's view is that there has

11 not been substantial -- there has been some cooperation but by no means

12 substantial cooperation. And unless Your Honours want -- it will involve

13 me again going into private session if I want to discuss --

14 JUDGE ROBINSON: No, I think I'd rather hear Mr. Babic first. If

15 it's necessary, then you can come back.

16 MS. CHANA: Yes.

17 JUDGE ROBINSON: Thank you.

18 Mr. Babic.

19 MR. BABIC: [Interpretation] Your Honours, and my learned friends,

20 in my submission, I set forth information that might be of assistance to

21 the Trial Chamber in determining the sentence. I provided explanations

22 and referred to the theory and also the jurisprudence of this Tribunal.

23 At this public hearing, I wish to stress the main points in this

24 submission and to provide some additional explanations. First of all, I

25 wish to reiterate that the accused Banovic feels that the plea agreement

Page 117

1 he has concluded with the Prosecution is sacred and in no way does he wish

2 to bring it into question. Secondly, the guilty plea entered by the

3 accused before the beginning of the trial should undoubtedly be taken as a

4 moral act contributing to the truth about the crimes in the Keraterm camp

5 and his role in those crimes. Thirdly, the accused Banovic made this plea

6 of his own free will. It was an informed plea, and he was fully aware of

7 all the consequences of his plea. And fourthly, bearing in mind that

8 sentencing is exclusively within the purview of this Trial Chamber, the

9 Defence, relying on Rule 101(A), in its sentencing brief has put forward

10 the relevant information that might assist the Trial Chamber in

11 determining a sentence, supporting this information with 15 witness

12 statements taken under Rule 92 bis, an expert report, and 9 exhibits.

13 With your leave, Your Honours, the ninth exhibit, tab 9, is one to

14 which I would add another document guaranteeing a job to the accused

15 Banovic after he has served his sentence on the territory of Republika

16 Srpska.

17 JUDGE ROBINSON: This is an addition, Mr. Babic, is it?

18 MR. BABIC: [Interpretation] Yes, Your Honour, it's something that

19 I received only yesterday.

20 JUDGE ROBINSON: Let the Prosecutor see it.

21 It can be included in the bundle, and we'll consider its admission

22 when we come to look at the admission of the documents as a whole.

23 MR. BABIC: [Interpretation] Thank you, Your Honours. With all due

24 respect, I'm convinced that you will accept the information contained in

25 the brief, the witness statements and the exhibits, as they are elaborated

Page 118

1 in the brief.

2 My starting point was that first of all, when determining a

3 sentence, the purpose of punishment should be considered. Although this

4 is not explicitly defined in the documents of this Tribunal, but the

5 jurisprudence shows that the purposes are the protection of the

6 international community, the achievement of peace and of reconciliation in

7 the former Yugoslavia, retribution, deterrence, and rehabilitation of the

8 accused. Under D, paragraph 20 to 58, and in the confidential addendum, I

9 set out the factors that I feel this Trial Chamber should take into

10 account when determining the sentence. I appeal to you, Your Honours,

11 regarding the weight to be attached of each of these factors, that this

12 should be in accordance with the goals I have mentioned.

13 In connection with this, I wish to provide some additional

14 explanations supporting the views I have put forward in paragraph 36 of my

15 brief where I said that I believe that the gravity of the crime, and

16 especially the role of the accused, should be put into the context of the

17 aggressive wartime propaganda which was generally prevalent, but

18 especially in Prijedor and in the Keraterm camp. The reason I mention

19 this is that I am deeply convinced, based on my experience, and this is

20 the third case I have been involved with before this Tribunal, that the

21 role and influence of propaganda in the prewar period and during the war

22 on the collective consciousness of each entity and each individual has not

23 been given sufficient weight. I believe that the decisions of this

24 Tribunal and of this particular Trial Chamber should provide an answer to

25 question as to how a situation where in 1989, 80 per cent of the citizens

Page 119

1 of Bosnia and Herzegovina responded in a questionnaire to the question of

2 what the interethnic relations were, they said that they were good. How

3 could this in the space of just a few years have been transformed into an

4 atmosphere of hatred and crime and intolerance.

5 I believe that this came about because of the rise of national

6 parties and their propaganda relating to the threats against each of these

7 entities and the need for their self-defense. I will summarise the

8 propaganda on the Serbian side and link it up to the behaviour of the

9 accused Banovic. So I will look into my own entity, and I hope that my

10 learned friends in other cases defending Croats and Muslims will do the

11 same.

12 On the Serb side, the main propaganda line was put forward before

13 this Trial Chamber by the accused Plavsic who said: "I am now convinced

14 and I accept that several thousand innocent people were victims of the

15 organised and systematic activity to remove Muslims and Croats from areas

16 that the Serbs considered their own." To this she added that it was easy

17 for her then to convince herself then that it was a question of survival

18 and self-defense. Your Honours, if it was so easy for her to believe all

19 of this, and she was an educated and experienced woman, then certainly it

20 was far easier for a young, uneducated, inexperienced, and emotionally

21 immature man such as the accused Banovic to believe this. The British

22 journalist, Tim Jordan, wrote a book on the history, the myth, and the

23 destruction of Yugoslavia where he said that the Serbs entered the war

24 because their leaders took them to war. The leaders made use of the

25 maligned threads in the history of their people to draw the people into

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1 war. The issue of the survival and self-defense of the Serbian people was

2 constantly raised by the media, including the media in Prijedor. Traumas

3 were activated and abused. And as always in such situations, the

4 spreading of rumours from individual to individual became a special form

5 of propaganda. And the Keraterm camp is a very good example of this. On

6 the one hand, the Serbs spread rumours about the crimes allegedly

7 committed by some of the prisoners, and they used this as a reason to take

8 revenge on them. On the other hand, the prisoners spread rumours on the

9 crimes of the Banovic brothers, especially Predrag, while this Trial

10 Chamber knows that only Predrag Banovic was in the camp and accepted the

11 withdrawal of the indictment against Nenad.

12 Also, during the discussions on agreed facts, and I wish to pay

13 tribute to my learned friends in this respect, the murders of the Kuburas

14 brothers and Fikret Abdic and some of the beatings were also withdrawn

15 from this indictment. In an environment such as the Keraterm camp, there

16 can be mistakes in identifying people. The essence of the rumours and the

17 propaganda value of these rumours has been best expressed by the writer,

18 Ivo Andric, a Nobel Prize winner who is deeply familiar with the mentality

19 of the people of Bosnia-Herzegovina who said in one of his books "the

20 rumour started. Once a rumour starts, it doesn't stop. It continues, and

21 it grows."

22 The writer was writing about a prison. He was writing about the

23 prisoners, the administration, and the prison guards. This is an

24 environment that resembles the environment of the Keraterm camp.

25 Your Honours, I wish to believe that when evaluating the witness

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1 statements of the Prosecution, you will bear in mind the quotation I have

2 just mentioned and that you will place your trust in the agreed facts

3 which form the factual basis of the guilty plea because this best

4 expresses the role of the accused Predrag Banovic in the crimes committed

5 in the Keraterm camp.

6 JUDGE ROBINSON: Let me see if I understand your submission on

7 this point: You're saying that the accused lived in an environment of

8 propaganda such that he was influenced by it, he succumbed to the

9 propaganda. And this is a factor that you're asking us to consider in

10 determining sentence.

11 MR. BABIC: [Interpretation] Yes, Your Honour. Precisely so.

12 JUDGE ROBINSON: Proceed.

13 MR. BABIC: [Interpretation] I will now very briefly list the

14 factors that the Chamber should take into consideration in sentencing.

15 When discussing aggravating circumstances, I put forward my position that

16 there are no aggravating circumstances in this case because they're

17 essentially subsumed in the overall gravity of the offence. As for

18 mitigating circumstances, in my view they are the following: First of

19 all, the guilty plea, the remorse that the accused has expressed, and

20 unlike the Office of the Prosecution, I believe that his remorse is

21 sincere.

22 Your Honours, the main problem in the interview between the

23 accused Banovic and the investigators was that Predrag Banovic does not

24 remember a single name. He does not know the names of the people who were

25 in the camp. There are very few names that he was able to recall. That's

Page 123

1 why there was some confusion. But he did sign his guilty plea in the end.

2 Secondly, his low rank and subservient position in the hierarchy.

3 Then his personal circumstances, his youth. He was 22 at the time of the

4 commission of the crimes. His family circumstances, he's married and the

5 father of a three-year-old child. The fact that before the war, he lived

6 and socialised with people of all ethnicities and religions, and that he

7 did not have any discriminatory intent before the war but that it appeared

8 during the war as a result of warmongering propaganda. During the war, he

9 helped many Muslims and Croats in various ways. He has no prior criminal

10 record. He was not a member of the Serbian Democratic Party. During the

11 war, he was an emotionally immature personality. His behaviour in the

12 Detention Unit has been good. He has shown respect toward this Trial

13 Chamber and the Prosecution. He's now fully aware of the social, moral,

14 and legal context of his actions in the camp, and he is now ready to

15 behave in a responsible and mature way. In other words, his character can

16 be improved.

17 I believe that he has cooperated significantly with the

18 Prosecution, and I have given reasons for this view in my confidential

19 addendum.

20 Finally, the Defence feels that the guilty plea and the remorse

21 shown, together with the factors I have already mentioned, should be given

22 sufficient weight for the sentence to be an expression of justice which

23 considers the suffering of the victims, but is also just for society as a

24 whole, and the accused. In my view, an eight-year sentence would meet all

25 these requirements. Thank you, Your Honours, and I will answer any

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1 questions you might have.

2 JUDGE ROBINSON: Mr. Babic, perhaps you should say something about

3 the substantial cooperation. If you need to do it in private session,

4 then we can go into private session.

5 MR. BABIC: [Interpretation] Yes, Your Honours. May we go into

6 closed or private session, please.

7 JUDGE ROBINSON: Private session.

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8 [Open session]

9 JUDGE ROBINSON: You wanted to add something, Mr. Babic? No.

10 Yes, Mr. Babic.

11 MR. BABIC: [Interpretation] Your Honours, with your leave, if you

12 have no questions, I ask you to give the floor to the accused Banovic and

13 allow him to speak.

14 JUDGE ROBINSON: Yes, the accused, Mr. Banovic.

15 THE ACCUSED: [Interpretation] Your Honours, I have pleaded

16 unequivocally as guilty. My guilty plea was an expression of sincere

17 remorse concerning the events in Prijedor, and especially the Keraterm

18 camp. I gave an interview about my role in this to the investigators of

19 the Tribunal. Today, I wish to add only the following: My arrest and

20 transfer to The Hague, as well as that of my brother, was something I

21 experienced with great fear, mostly because the propaganda was always that

22 The Hague was a place for the quiet murder of the Serbs. Fortunately,

23 very soon, I came to the conclusion that this propaganda was a lie.

24 Through the proceedings up to this point, I have experienced

25 enlightenment. I have gathered the strength to face the truth and myself.

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1 This is why I made the decision to change my plea. I deplore the period

2 of war and hatred, and I regret that I did not find a way to avoid

3 mobilisation and my role in the camp. I feel sorry for all the victims,

4 and I curse my own hands for having inflicted pain in any way on innocent

5 people. I wish my sincere words to be understood as a balm for those

6 wounds and as a contribution to the reconciliation of all people in

7 Prijedor and the restoration of the situation that existed before the war.

8 JUDGE ROBINSON: Thank you, Mr. Banovic. You may sit.

9 There being no other business, the hearing is adjourned.

10 --- Whereupon the Sentencing Hearing adjourned

11 at 3.41 p.m.

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