1 Thursday, 20 October 2005

2 [Sentencing]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 3.05 p.m.

6 JUDGE BONOMY: May I invite the Court Deputy, first of all, to

7 call the case.

8 THE REGISTRAR: Good afternoon, Your Honours. This is case number

9 IT-95-17-S, the Prosecutor versus Miroslav Bralo.

10 JUDGE BONOMY: I'll make it clear initially that the Trial Chamber

11 has decided that I should preside over this sentencing hearing. First of

12 all, may I take the appearances for the Prosecutor.

13 MR. HARMON: Good afternoon, Mr. President, Your Honours, counsel.

14 My name is Mark Harmon. Appearing with me is Mr. Fergal Gaynor and case

15 manager, Sebastiaan van Hooydonk.

16 JUDGE BONOMY: Thank you, Mr. Harmon.

17 And for the accused, Mr. Bralo.

18 MR. COOPER: Good afternoon, Your Honours. My name is Jonathan

19 Cooper. I appear as counsel. With me is Ms. Virginia Lindsay, who

20 appears as legal consultant, and Ms. Snezana Bukal, who is our

21 investigator.

22 JUDGE BONOMY: Thank you, Mr. Cooper.

23 Mr. Bralo, can you please confirm to me that you are able to hear

24 the proceedings in a language which you are familiar with.

25 THE ACCUSED: [Interpretation] Yes.

1 JUDGE BONOMY: Thank you very much. You may be seated.

2 The sentencing hearing this afternoon follows upon a plea of

3 guilty tendered by the accused Miroslav Bralo on the 19th of July of this

4 year, following which Trial Chamber I entered convictions against him on

5 each of eight counts. I just want to summarise these counts at the

6 outset.

7 The first is a count of persecution as a crime against humanity,

8 and deals with a number of episodes, including participation in the

9 killing of the family of Osman Salkic prior to an attack on Ahmici;

10 participation in the attack on Ahmici itself; destruction of the lower

11 mosque at Ahmici; the forcible transfer of Muslim residents; the burning

12 of Muslim residences in Ahmici; and the participation in the killing of 14

13 members of the Salkic and Cerimic families.

14 Count 2, which is a count of murder as a violation of the laws or

15 customs of war, involved the killing of three unarmed Muslim men near

16 Kratine.

17 Count 3 to 6 are related to each other and involve torture,

18 repeated rape, and unlawful confinement of one particular Muslim woman.

19 The various charges are of torture or inhumane treatment as a grave breach

20 of the Geneva Conventions. Count 4 is torture as a violation of the laws

21 and customs of war, and these two are closely related, 3 and 4. Count 5

22 involves outrage upon personal dignity, including rape, as a violation of

23 the laws or customs of war. And Count 6 is unlawful confinement as a

24 grave breach of the Geneva Conventions.

25 Then Count 7 and 8 are related to each other. Count 7 is unlawful

1 confinement of civilians as a grave breach of the Geneva Conventions. And

2 Count 8 is inhumane treatment as a grave breach of the Geneva Conventions.

3 And these two charges involve the unlawful confinement of Muslim

4 civilians, forcing them to dig trenches, and the use of prisoners as human

5 shields.

6 Now, that's an outline of the terms of the indictment and the

7 factual basis for the Plea Agreement.

8 Can I now move to ask the counsel here to give me an indication of

9 how it's proposed to undertake the hearing, what course of action you

10 propose to follow.

11 Mr. Harmon.

12 MR. HARMON: Your Honour, we do not have any witnesses who will be

13 testifying. It was my intention to merely make oral submissions to the

14 Chamber.

15 JUDGE BONOMY: Associated with these oral submissions, I assume

16 you will make reference to a number of exhibits, or proposed exhibits.

17 MR. HARMON: Your Honour, I have a set of exhibits that

18 essentially are the attachments to the Prosecutor's brief. Some of them

19 consist of statements both under seal, and should be under seal, and not

20 under seal, and there are photographs. We will tender copies of all of

21 our attachments in the course of this hearing. It is my intention to have

22 some of the visual images put on the monitor during the course of my

23 remarks.

24 JUDGE BONOMY: And do you intend that any material you actually

25 submit in writing or in graphic form to the Chamber should have any

1 particular status, or is it simply material in the general sense, I think,

2 envisaged in Rule 100?

3 MR. HARMON: General material, Your Honour. There are some

4 statements, however, that should remain under seal. Those have been

5 identified in our trial brief, in the face sheets that are in front of

6 each of the attachments.

7 JUDGE BONOMY: There are certainly statements among the papers in

8 both briefs to which there may be existing protective measures. Are you

9 aware of any such?

10 MR. HARMON: I am, Your Honour, and that's why I have put some

11 under seal.

12 JUDGE BONOMY: Thank you, Mr. Harmon.

13 Now, Mr. Cooper, do you intend to follow a similar course?

14 MR. COOPER: Your Honour, yes.

15 JUDGE BONOMY: And in your case, there's the additional question

16 of whether the accused intends to say anything further.

17 MR. COOPER: Your Honour, yes, that's right. My client intends to

18 say a few words at a particular point in my address to Your Honours, if

19 that's convenient.

20 JUDGE BONOMY: Yes. The only question that arises in my mind over

21 the timing of that is that I would anticipate Mr. Harmon making

22 submissions, followed by you, and that would complete the hearing.

23 Everything that will be referred to is already out in the open except

24 anything that the accused, Mr. Bralo, might say. And I wondered if it

25 might not be appropriate simply to hear from him first of all. But if

1 that's going to disturb your plans, then obviously the Trial Chamber won't

2 insist upon it, but would that not perhaps be a better way of proceeding?

3 MR. COOPER: I think that, with respect, may well be the best

4 course. There are a number of -- forgive me. There are a number of

5 preliminary matters that I ought to raise before the sentencing hearing

6 proper starts.

7 JUDGE BONOMY: Just before we get to these, give me a moment.

8 [Trial Chamber confers]

9 JUDGE BONOMY: I think our preference, Mr. Cooper, would be to

10 follow the last course suggested, which is to hear from Mr. Bralo first

11 and then we can hear Mr. Harmon's submissions and then your submissions,

12 if that's okay. Now, you mentioned preliminary matters.

13 MR. COOPER: Your Honour, yes. There are a number of preliminary

14 matters to raise. May I say, though, that they do not affect our ability

15 to deal today with matters for the sentence hearing. It may not be

16 possible, however, to complete all of the matters upon which there may be

17 factual material or there may be material upon which there should be

18 submissions.

19 However, I envisage that those matters can be dealt with either by

20 written submissions or in some other format, without necessitating a

21 return to Court. But at this stage, there are a number of outstanding

22 matters.

23 If I can take Your Honour through them briefly.

24 The first issue is co-counsel. And as I embark on a short list, I

25 wonder if at this stage it would be appropriate to go into private

1 session, because of the nature of the matters that I'm about to refer to.

2 [Trial Chamber confers]

3 JUDGE BONOMY: Yes. We'll go into private session briefly,

4 Mr. Cooper, as briefly as possible, please.

5 [Private session]

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18 [Open session]

19 THE REGISTRAR: We're in open session, Your Honours.

20 JUDGE BONOMY: Given the indications we've had of the time likely

21 to be taken, we will adjourn now for 20 minutes. We'll resume sharp in

22 20 minutes, with a view to hearing from Mr. Bralo and hearing, if

23 possible, both counsel's submissions this evening. We'll do our best to

24 achieve that. If not, we have tomorrow morning.

25 --- Recess taken at 4.34 p.m.

1 --- On resuming at 4.56 p.m.

2 JUDGE BONOMY: Mr. Cooper, should we now hear from Mr. Bralo?

3 MR. COOPER: Your Honour, yes.

4 JUDGE BONOMY: Mr. Bralo, I understand that you want to make a

5 statement, and the Trial Chamber will now hear you. Please proceed.

6 THE ACCUSED: [No interpretation].

7 JUDGE KWON: I see there's no person in the English booth.

8 THE INTERPRETER: Your Honours, we're doing it from this booth and

9 we just had a channel glitch. We apologise.

10 JUDGE BONOMY: Would you care to start again, please, Mr. Bralo.

11 THE ACCUSED: [Interpretation] Your Honours, I thank you for

12 allowing me to address you and the public. I would like to apologise to

13 all of the victims and to their families, their close and distant

14 relatives, and all of those who experienced the horrors of war through me

15 or my co-fighters.

16 Thank you very much.

17 JUDGE BONOMY: Thank you, Mr. Bralo. Does that complete your

18 statement?

19 THE ACCUSED: [Interpretation] Yes, Your Honours.

20 JUDGE BONOMY: Please be seated.

21 Now, Mr. Harmon, I think we would like to hear your submissions.

22 MR. HARMON: Your Honours, counsel. Your Honours are here today

23 to sit in judgement on Miroslav Bralo. To put this case in the proper

24 historical context, one must return to Central Bosnia in the spring of

25 1993, when the Bosnian Croats were allied with the Bosnian Muslims against

1 their common foe, the Bosnian Serbs. The Bosnian Croats suddenly turned

2 on their allies throughout the Lasva Valley and ethnically cleansed

3 villages throughout that region.

4 Overwhelmed by fear and poisoned by propaganda, peaceful villagers

5 turned into killers and eliminated their own neighbours to further the

6 goals set by others of ethnic separation. The goals of this murderous

7 campaign were not set by Miroslav Bralo. He was not the architect of

8 ethnic separation. He was not even a mid-level perpetrator. In the

9 hierarchy of malefactors, he held a low rank, but his low rank did not

10 prevent him from becoming notorious for his particular cruelty and deeds

11 for their savagery and for his complete lack of mercy.

12 Miroslav Bralo has pleaded guilty to eight counts in an amended

13 indictment. Your Honour has summarised those counts, something I had

14 intended to do and I'm grateful to Your Honour for doing so.

15 I've had the privilege of appearing before this Tribunal for 11

16 years, and I recall participating in some of its earliest litigation,

17 particularly in 1996, when I participated in a Rule 61 hearing involving

18 the Karadzic and Mladic cases. Great stock was put into the fact that

19 this Tribunal would afford an opportunity for the world to hear the voices

20 of the victims and to allow it to reflect soberly on the meaning of their

21 words.

22 Nine years have passed since that hearing, and in the intervening

23 nine years, the Tribunal has focussed on complex issues of substantive and

24 procedural law, creating important precedents that hopefully will serve to

25 guide future generations of international lawyers, judges, and scholars.

1 But it seems to me in the process of grappling with many of the difficult

2 issues that confront this Tribunal, and I do not intend this to be a

3 criticism, our work is taken on a more impersonal and abstract quality,

4 oddly deflecting our attention away from what actually happened to our

5 fellow man in the time of war.

6 War crimes are about men and women and children who were abused,

7 murdered, and maimed, whose families were shattered and whose loved ones

8 had been consigned to shadows and to memories. This case clearly

9 underscores why the United Nations created a war crimes tribunal.

10 In determining what is an appropriate sentence in this case, I

11 submit to Your Honours that the appropriate starting point for that

12 analysis was enunciated by the Trial Chamber in the Celebici case, wherein

13 that Trial Chamber stated that the sentence to be imposed must reflect the

14 inherent gravity of the criminal conduct of the accused.

15 It is hard to imagine more grave conduct, both in terms of its

16 nature and in terms of its scope. Miroslav Bralo's criminal conduct

17 includes the rape and torture of a helpless woman, the destruction of an

18 important mosque in Ahmici. And I have put that image for Your Honours

19 and for the public on the screen. This is a mosque that was destroyed by

20 Miroslav Bralo and a colleague.

21 His conduct includes the participation in the extirpation of the

22 village of Ahmici, including the burning of residences, killing, and

23 forcibly expelling the Muslim residents from that village.

24 I direct your attention to the next image that appears on the

25 screen. This is an image of the house of one of the statements of a young

1 boy we submitted, Adnan Zec. And Your Honours will notice in the

2 foreground dead civilians. This picture was taken on the morning of the

3 16th of April, 1993.

4 Miroslav Bralo's conduct also includes forcing civilians to dig

5 trenches at dangerous front line positions and using civilians as human

6 shields. His conduct also includes the murder of 21 civilians, 9 of whom

7 were children. Who were Miroslav Bralo's victims? Were they faceless,

8 nameless people whose identities are forever lost in the numbing lists of

9 statistics that we see associated with this war? Of course not.

10 There was the Osman Salkic family. And if we take a look at the

11 next image, Your Honour, this image shows Osman Salkic in -- designated by

12 the number 2. Mr. Salkic, on the evening of the 15th of April, was

13 killed, along with his wife, who was 55 years old, and their daughter,

14 Mirnesa, who was 29 years old.

15 If we take a look at the next image, Your Honour, this next image

16 in item number 1 is a picture of Mirnesa Salkic. As I say, she was 29

17 years old when Miroslav Bralo slit her throat.

18 Then there's the family of Emsad and Nihada Salkic. Emsad, the

19 patriarch, was 37 years old, and Nihada, who is shown in the next image,

20 she is image -- figure number 3. She was 34 years old. They had three

21 children, who were also killed. Those children, if we take a look at the

22 next image, were Senad Salkic, who was 16 years old at the time he was

23 killed, and Nermin Salkic, who was 10 at the time of his death. This

24 picture is the only picture that I had available to me. It was taken some

25 years before the actual killing.

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1 In addition, Your Honour, the daughter of Emsad and Nihada Salkic,

2 Melisa Salkic, who was 8 years old at the time of her death, was also

3 killed. There are, Your Honour, no survivors of the Emsad Salkic family

4 or the Osman Salkic family.

5 Next there was the family of Esad Salkic. Esad Salkic was the man

6 who is referred to in the Defence brief, who was killed by Mr. Bralo in

7 February of 1993. He is not the subject of this prosecution. But his

8 family consisted of his wife. And if we could have the next image. His

9 wife, who was Fatima Salkic, depicted in the next image. She was 32 years

10 old at the time she was killed.

11 Esad Salkic had three children, a son Adis, and daughters Adisa

12 and Alisa.

13 If we turn to the next image, Your Honour, this is an image of

14 Adis Salkic, who was 14 years old at the time of his killing.

15 If we turn to the next image, another child of Esad Salkic. This

16 is Adisa Salkic. She was 11 years old at the time of her death. Their

17 daughter, who was 2 years old at the time, Alisa, is the sole surviving

18 member of her family.

19 Then there was the Mehmed Cerimic family. If we turn to the next

20 image, please. This picture was taken five years before their deaths.

21 This shows, in number 1, the patriarch of the family, Mehmed Cerimic, who

22 was born in 1946. It shows his wife in number 3, who was born in 1952.

23 And it shows his three children, who at the time of their deaths were

24 7 years old, 17 years old, and 14 years old.

25 There are two members of this family who survive.

1 Then there was Fuad Kermo. If we could turn to the next image.

2 Mr. Kermo was married, the father of two children. He was 25 years old

3 when he was murdered by Miroslav Bralo.

4 There was Ibrahim Pezer who was 26. We do not have an image of

5 Mr. Pezer.

6 And there were two men whose identities we do not know who also

7 died at the hand of Mr. Bralo.

8 As we contemplate this carnage, I'm reminded of the words of the

9 poet Rupert Brooke, who spoke of young soldiers killed in the First World

10 War. Rupert Brooke's words apply equally to Miroslav Bralo's victims.

11 Rupert Brooke said: "These hearts were woven of human joys and

12 cares, washed marvellously with sorrow, swift to mirth. The years had

13 given them kindness. Dawn was theirs, and sunset, and the colours of the

14 earth. These had seen movement, and heard music; known slumber and

15 waking; loved; gone profoundly friended; felt quick the stir of wonder;

16 sat alone; touched flowers and furs and cheeks. All this is ended."

17 And indeed, Your Honour, for Miroslav Bralo's murdered victims,

18 all this is ended. But for his living victims, it has not ended and it

19 has not ended for 12 and a half years.

20 In determining the proper sentence in this case, it is our

21 submission that it is appropriate for you to consider the impact that

22 Miroslav Bralo's crimes had on the victims and their families. In that

23 respect, Your Honours, we have submitted numerous victim impact statements

24 to the Trial Chamber. Three of the statements are under seal, and I shall

25 not identify the victims by name, but I shall refer to them in general

1 terms and to the impact that the crimes had on them in general terms.

2 Let us then listen to the voices of some of his living victims, 12

3 and a half years after he committed the crimes to which he has pleaded

4 guilty. One victim, designated as Witness C and filed under seal, whose

5 husband was murdered by Bralo, who was personally threatened by Mr. Bralo,

6 has written to Your Honours about the impact that the crimes had on her

7 life and on the lives of her young children. And she wrote in her

8 submission: "If I wrote everything I could write, a book thicker than the

9 thickest book in the world, and whoever read the book would cry because of

10 the sorrow and the pain I carry inside of me, if a stone could read, it

11 would cry."

12 Her description of the impact of Miroslav Bralo's crimes on her

13 and her small children has been a 12 and a half year odyssey of despair,

14 fear, and pain. Her children have suffered, she more so. She says in her

15 letter to you: "I wash my face with tears."

16 This victim, who was threatened by Miroslav Bralo, brandishing a

17 bloody knife and threatening to kill her and her children, remains fearful

18 today. Miroslav Bralo's image remains indelibly etched in her memory.

19 She is in a poor physical and mental state as a result of Miroslav

20 Bralo's crimes. Facts that are confirmed by a professional social worker

21 who has worked with Witness C and her family for three and a half years.

22 The social worker's statement has been filed under seal. Her objective

23 analysis of the victim and the impact that the crime had on her and her

24 family members is clear and unambiguous, and it is our submission that the

25 impact of Miroslav Bralo's crimes on Witness C significantly exceeds that

1 usually suffered by indirect victims of murder.

2 Another of Miroslav Bralo's victims has, through a declaration of

3 an Office of the Prosecutor investigator, described the impact that

4 Miroslav Bralo's crimes had on her 12 and a half years after the events.

5 The tableau she paints is bleak, one of enduring and inescapable

6 suffering, permanent emotion and physical damage. It is clear that this

7 victim dehumanised and tortured by Bralo, is permanently damaged by his

8 conduct and has lost forever many of those qualities that make a life

9 vibrant and emotionally rich.

10 Another victim, Witness B, whose statement also is filed under

11 seal, is a living victim of Bralo and of his partners in crime. She has

12 suffered painful physical and serious psychological consequences that she

13 attributes directly to the crimes committed by Miroslav Bralo. She has

14 suffered, her children have suffered as well. She describes to Your

15 Honours a journey of despair, a journey that none of us can imagine, a

16 journey that none of us would ever want to take.

17 If we turn to Ahmici, which is part of the persecution count, on

18 the 15th of August, 1993, Miroslav Bralo was in prison, where he was being

19 detained, awaiting trial for the charges relating to the killing of Esad

20 Salkic. That killing took place in February of 1993. Miroslav Bralo was

21 released for the purpose of participating in the attack on Ahmici that was

22 to occur the next morning.

23 The purpose of that attack was to ethnically cleanse Ahmici, to

24 kill all Muslim males of military age, and others, bearing arms, to burn

25 all Muslim residences and to forcibly expel all Muslim residents from the

1 village. It was clearly a criminal plan, and Miroslav Bralo was a willing

2 and enthusiastic participant in it.

3 Regarding this attack, the Office of the Prosecutor has submitted

4 for Your Honours' consideration a representative sample of statements from

5 victims of that attack, in which they describe the impact that the crimes

6 committed in Ahmici had on their lives. Their voices, Your Honours, I am

7 confident, fairly reflects the impact of these crimes on hundreds of

8 victims from Ahmici.

9 If we take a look at the first statement that I'll refer to, the

10 statement of Elvir Ahmic, Elvir Ahmic was 14 years old at the time Ahmici

11 was attacked. He lived with his mother and his father, his 8-year-old

12 brother, and his 4-year-old sister. On the 16th of April, in the early

13 morning, he witnessed his younger brother murdered, his mother mortally

14 wounded. He himself was wounded. As his mother lay dying, her words to

15 him were, "Elvir, find your father, take care of your sister. Take the

16 money that is left and bury us."

17 Twelve and a half years later, Elvir, in his statement to the

18 Trial Chamber, said, describing both his physical pain, which was caused

19 by shrapnel and bullets that remain in his body, and his enduring

20 emotional pain, he says, and I quote: "I do have emotional pain, and this

21 pain will stay with me for the rest of my life. I miss my mother and

22 brother a lot and I think of them every day. In the years that my sister

23 and I needed our mother most, we lost her. This is one of the reasons why

24 I simply cannot find peace of mind."

25 Another victim. Adnan Zec. I displayed earlier, Your Honour, an

1 image of his house that was burnt on the morning of the 16th of April. He

2 lived in that house with his mother, his father, and his two younger

3 sisters. As he fled from his home, he was shot and wounded, and he

4 feigned death. And as he lay there, he saw his mother and father and two

5 sisters running in his direction. He observed his mother and father and

6 11-year-old sister murdered in front of him. His 6-year-old sister

7 miraculously survived, but Adnan Zec and his sister were left as orphans.

8 He describes to Your Honours the impact that those crimes had on him.

9 "The war and the killing of my parents made me, without my fault, to a

10 kind of homeless person drifting from one place to another. One of the

11 biggest problems for me is the missing presence of my father and his

12 support. Prior to the conflict, my father was already planning for my

13 future. Shortly before the conflict erupted, he wanted to open a small

14 shop and start to build a house for me. The plan of my father was that I

15 was to take over the store once I will be grown up. This guidance and

16 support I missed due to the killing of my father. When I am thinking

17 about this now, I easily get depressed and it gives me huge emotional

18 pain. I try to push away the scenes of the killing of my family, but it

19 is not possible to do so, in particular, the scenes of running, trying to

20 escape, the last moments before my sister and parents got killed. I

21 suffer sleeplessness, getting emotional, and psychological pain."

22 Abdullah Ahmic is another victim from Ahmici. On the 16th of

23 April, he lived in a house with his mother, father, three sisters, and a

24 brother. His 27-year-old brother was executed, his father was executed in

25 front of him. Abdullah Ahmic was shot in the temple. He survived,

1 miraculously. He feigned death. His mother and three sisters, sisters

2 were aged 24, 23 and 16, were killed the following day. Mr. Ahmic is

3 physically disabled as a result of what happened to him. His family house

4 was burned to the ground. He lost his entire family and he says: "We who

5 were the victims of this war, in comparison to people who did not lose any

6 family members, we have that additional difficulty to struggle to live

7 with these terrible things over and over and over again, which surely does

8 present a great burden on the whole organism. As for my personal life,

9 I'm pretty much handicapped, having lost all of my family. Just look at

10 the son of mine. He is here alone, having not other children to play. If

11 my family would still be alive, this house would be full of other

12 children."

13 Ibnel Famic, who led religious services in the Islamic community

14 describes the destruction of the village of Ahmici and its two mosques.

15 And he says: "With the beginning of the conflict, the religious life of

16 the Islamic community, as well as life generally in Ahmici, ceased to

17 exist."

18 Fatima Ahmic, whose son was murdered in front of his wife and

19 small children, whose invalid husband was murdered and whose son's house

20 was burnt to the ground has provided Your Honours with a victim impact

21 statement. As she says: "I was going through severe emotional pain, in

22 fact, these pains are still part of my life. Every day I close my eyes.

23 It doesn't matter if it is day or night. I see the killing of my husband

24 and son in front of me. I went through the worst things that could happen

25 to one person. I have lost my closest family and all my belongings." All

1 these things are following me since this time and they are not leaving my

2 mind. I have to cry several times a day."

3 Finally, I refer to the statement of Kazi Ahmic, who was 52 when

4 Ahmici was attacked. At the time of the attack he resided with his wife,

5 son, and nephew. On the day of the attack, as he was fleeing Ahmici with

6 his wife, his wife was shot in the head by a sniper. She perished shortly

7 thereafter.

8 In another part of Ahmici, Cazim Ahmic's son and nephew were

9 killed. During the conflict he lost more than 60 relatives. He says, and

10 I quote: "With the attack, my life was destroyed. The images of killing

11 of my loved ones are still in front of my eyes. On several occasions, I

12 almost died due to my sorrow. The biggest difficulty for me is to

13 overcome the loss of my immediate family members. I had a happy life with

14 my wife and children, and all of a sudden someone comes and destroys all

15 of that. Killing your loved ones and depriving you of all material

16 wealth. You can't explain those traumas."

17 The circles of suffering emanating from the crimes committed by

18 Miroslav Bralo, either personally or in concert with others, have been

19 life-altering events from which sadly many of the victims have been unable

20 to escape. Many of his victims, through no fault of their own, have been

21 condemned to life sentences of pain and sorrow, and it is our submission

22 that it is proper for your consideration to consider the victim impact

23 statements when you determine what sort of a sentence should be imposed on

24 Miroslav Bralo.

25 Now, in our brief, Your Honour, we have identified a number of

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1 factors which we submit should be considered by the Trial Chamber as

2 factors in aggravation. The first of those is a large number of victims

3 who were killed by Miroslav Bralo. Turning to the jurisprudence of this

4 Tribunal, I refer Your Honours to the Deronjic case. In that case, the

5 Trial Chamber accepted the following factors to be aggravating: "The

6 large number of civilians who were killed, subjected to the risk of being

7 killed, forcibly displaced and deprived of their property."

8 The crimes to which Miroslav Deronjic entered a guilty plea

9 related to the ethnic cleansing of a small village, Muslim village, in the

10 Bratunac municipality. It's quite similar to the attack on Ahmici. The

11 attack on Glogova was an attack on a defenceless Muslim village that was

12 attacked by superior Bosnian Serb forces. It was a surprise attack. In

13 the course of the attack, Muslim homes were intentionally torched. The

14 mosque was completely destroyed. 64 Muslim villagers perished, and the

15 entire Muslim population from Glogova was forcibly expelled from the

16 village, and indeed from the municipality.

17 Miroslav Deronjic's liability was based on the fact that he

18 ordered that attack. It was based on the fact that he participated in a

19 joint criminal enterprise in that attack. He did not personally kill any

20 of the 64 victims in Glogova. As I said earlier, Bralo didn't order

21 attacks in order to separate Muslims from Croats. He didn't order the

22 attack on Ahmici, but his hands-on role in the attack are significant.

23 It's our submission, Your Honour, that the large number of victims

24 in this case is a proper factor of aggravation that should enhance the

25 sentence of Miroslav Bralo. In this case, Your Honour, as I've discussed

1 earlier, there were 21 murder victims of Miroslav Bralo. There are also

2 the victims in Ahmici, deaths, in our submission, which were clearly

3 foreseeable to Mr. Bralo when he participated in this attack on Ahmici.

4 JUDGE BONOMY: Mr. Harmon, what was the sentence imposed in

5 Deronjic?

6 MR. HARMON: Mr. Deronjic received a ten-year sentence, Your

7 Honour. I should add that Mr. Deronjic provided substantial cooperation

8 to the Prosecutor's office. I was the Prosecutor in that case.

9 Mr. Deronjic provided to us original documentation. He sat for a minimum,

10 as I recall, of 11 interview sessions with the Prosecutor's office. He

11 testified in five cases, five separate cases, publicly. Mr. Deronjic

12 discussed two significant elements of the Srebrenica massacre, one a

13 document that he had helped author and that had been used by the Bosnian

14 Serb authorities to suggest -- in fact, to say that nothing had happened

15 in Srebrenica. He acknowledged the crimes in Srebrenica at the time. The

16 crimes in Srebrenica had been denied. Indeed, there had been a report by

17 the -- a draft report by the Republika Srpska saying that there had been

18 no more than 100 people killed in Srebrenica. There were other aspects of

19 his cooperation, but the bottom line was, Your Honour, his cooperation was

20 substantial, and it is ongoing.

21 JUDGE ROBINSON: Testimony for the five cases would have been

22 subsequent.

23 MR. HARMON: I'm sorry?

24 JUDGE ROBINSON: Testimony in the five cases would have been

25 subsequent to the --

1 MR. HARMON: It was before. I believe it was before the

2 sentencing. Three of the cases may have been before the sentencing. Yes,

3 Your Honour.

4 JUDGE BONOMY: And did he plead guilty?

5 MR. HARMON: He pled guilty, pursuant to a Plea Agreement. And in

6 that Plea Agreement, there was -- he received a credit of substantial

7 cooperation from the Prosecutor's office.

8 JUDGE ROBINSON: Mr. Harmon, are you familiar with the cases in

9 which guilty pleas have been entered?

10 MR. HARMON: I'm familiar with a number, Your Honour.

11 JUDGE ROBINSON: In how many has the Prosecution offered

12 substantial cooperation? Not offered, but agreed that there was

13 substantial cooperation? Was it something that you agreed to sparingly or

14 are you --

15 MR. HARMON: No, Your Honour.

16 JUDGE ROBINSON: -- fairly liberal.

17 MR. HARMON: I have been involved in four plea agreements, where I

18 have said there has been substantial cooperation.

19 I can tell Your Honours that the first was the Erdemovic case.

20 Mr. Erdemovic was actually involved in two cases, two agreements. I was

21 the senior lawyer in the first case. That subsequently was reversed by

22 the Appeals Chamber for ineffective assistance of counsel, and

23 Mr. Erdemovic subsequently returned and entered a new Plea Agreement. But

24 without any doubt in my mind, I was involved in that case from the day

25 one. Mr. Erdemovic came to the custody of this Tribunal. He was

1 immediately and volunteered immediately to discuss matters with the

2 Prosecution. I sat with him during those discussions. His statements to

3 us were lengthy and truthful. This was at a time, Your Honour, when

4 Srebrenica -- when we did not have access to Srebrenica crime scenes.

5 Mr. Erdemovic identified the locations of crime scenes, he identified

6 participants in the execution squad of which he was a member, he

7 identified the structure and hierarchy of his unit in the VRS. He

8 testified, I think, in five cases, including the Rule 61 hearing, publicly

9 against Karadzic and Mladic. That's the first case.

10 The second case I was involved in was the Cesic case. Mr. Cesic

11 gave a statement, a complete statement to the Prosecutor's office. We

12 acknowledge that he had participated -- there was substantial cooperation.

13 There was the Plavsic case.

14 I'm missing one case, Your Honour. And the Deronjic case, which

15 I've already discussed. So those are cases where there has been

16 substantial cooperation that I have been involved in.

17 JUDGE ROBINSON: That you have been involved.

18 MR. HARMON: Yes. I can't say, Judge Robinson, whether all of the

19 cases that have resulted in plea agreements have resulted in an

20 acknowledgment of substantial cooperation by the Prosecutor's office. But

21 I am capable fully of distinguishing between the cooperation of the

22 defendants I've identified, that I've been personally involved with, and

23 Mr. Bralo.

24 JUDGE ROBINSON: Please continue.

25 MR. HARMON: Yes. Your Honour, I stand corrected. There was no

1 cooperation in the Plavsic case. So let me stand corrected. My memory

2 has faded.

3 JUDGE ROBINSON: I should have known that too.

4 JUDGE KWON: I think he's testified in Milosevic.

5 MR. HARMON: I'm sorry, Your Honour.

6 JUDGE KWON: Did he not testify in the Milosevic case, Erdemovic?

7 MR. HARMON: I don't know, Your Honour. I don't know the full

8 line-up of witnesses in that case, Your Honour. I apologise.

9 MR. HARMON: Now, we submit, Your Honour, that the second

10 aggravating factor in this case is the youth of the victims. If Your

11 Honours refer to the case of the Prosecutor versus Kunarac at all, this

12 was a case that involved a number of rapes, the rape victims were quite

13 young. The ages of some of those victims 12 years old, 15 years old, 15

14 and a half years old, 16 and a half years old, 17 years old. The Trial

15 Chamber in that case considered the youthful age of the victims to be an

16 aggravating factor. The Appeals Chamber affirmed that finding. Of

17 Bralo's 21 homicide victims, nine of them were minors at the time of their

18 deaths. The ages of the nine victims were 7 years old, that's Sanela

19 Cerimic and Elena Salkic; 8 years old, Melisa Salkic; 10 years old, Nermin

20 Salkic; 11 years old, Adisa Salkic; 14 years old, Elvedin Salkic, 16 years

21 old, Adis Salkic and Senad Salkic; and 17 years old, Edin Cerimic.

22 Another factor that we considered to be aggravating in this case

23 relates to the exacerbated humiliation and degradation of Witness A during

24 her rape and torture. In the Celebici case, defendant Delic was found

25 guilty of torture by way of raping two women detainees. One of his

1 victims was raped in the presence of his colleagues, which the Trial

2 Chamber found exacerbated her humiliation and degradation. The Trial

3 Chamber found in those circumstances that they were aggravating factors

4 that played in determining Delic's sentence.

5 In the Aleksovski case, the trial judgement, the Trial Chamber

6 found that the commission of violent offences against vulnerable, helpless

7 victims or persons were those placed in the situation of inferiority

8 constitutes an aggravating circumstance.

9 And finally, in the Furundzija case, the Trial Chamber considered

10 that the treatment to which Witness A had been subjected to be "a

11 particularly vicious form of torture for the purpose of aggravating the

12 sentence imposed."

13 Witness A in the Furundzija case is the same Witness A who

14 Miroslav Bralo raped and tortured, as described in Counts 3 and 6 of this

15 indictment. It is our submission that the following factors relating to

16 the rape and torture of Witness A should be considered as aggravating

17 factors: Repeated death threats to Witness A, her rape in front of members

18 of the Jokers, the unit to which Miroslav Bralo was a member; her repeated

19 rape over several hours; his biting her during the rape; his failure to

20 release her when he was aware that she was being raped by members of the

21 Jokers when he was in a position to release her.

22 So those, Your Honour, are three factors in aggravation, we

23 submit, should be considered by Your Honours in determining the sentence.

24 Now, in face of these staggering crimes for which Miroslav Bralo

25 has made guilty pleas, he has also made a plea for mitigation. It is

1 important and it is fair for the Prosecution to address his submissions,

2 and I'll do so now.

3 It is our submission, Your Honour, that Miroslav Bralo is entitled

4 to three factors of mitigation. The first factor is his voluntary

5 surrender. While we're unaware of the precise circumstances surrounding

6 the transfer of Miroslav Bralo to the Tribunal, we take the position that

7 his voluntary surrender merits your consideration.

8 The second factor is his guilty plea before the commencement of

9 trial. It is also our submission that this circumstance merits your

10 consideration, for a number of reasons. 1: It has spared witnesses from

11 being required to come to The Hague to testify about painful and traumatic

12 events that so disrupted their lives. The events in Central Bosnia have

13 been the subject of five trials before this institution: The Blaskic

14 case, the Kordic and Cerkez case, Aleksovski case, the Furundzija case,

15 and the Kupreskic case.

16 Mr. Bralo's guilty pleas have spared many of those victims from

17 having to return to The Hague yet again to testify about the events in

18 Central Bosnia.

19 Secondly, his guilty plea has saved the resources of this

20 institution by avoiding the expense of a potentially lengthy trial.

21 And finally, Your Honours, his guilty plea may contribute to the

22 process of reconciliation in Central Bosnia. To Miroslav Bralo's credit,

23 he has accepted his responsibility for the crimes committed in Ahmici and

24 its environs during the HVO's efforts to expel Muslims from Central

25 Bosnia. He has acknowledged that the attack on Ahmici was an offensive

1 operation, criminal in design and purpose, and he is the first Bosnian

2 Croat to do so before trial. He thus stands, Your Honours, in stark

3 contrast to other defendants and witnesses in other cases litigated in

4 this institution who have made efforts to mislead this Court. Miroslav

5 Bralo, to his credit, has not done so.

6 The last factor in mitigation, Your Honour, that we submit is one

7 that should be considered by Your Honours, is the factor of remorse. The

8 defendant who exhibits true remorse for his actions, according to the

9 jurisprudence of this Tribunal, is entitled to have that fact considered

10 by the Trial Chamber. I have studied the Defence brief, which I consider

11 excellent, and their submissions, and all of the submissions contained in

12 it, and it appears to me that Miroslav Bralo is genuinely remorseful and

13 has embarked on a personal voyage of reconciliation and atonement.

14 He has also made efforts to identify the location of minefields

15 that could continue to kill and maim people in the Lasva Valley. I don't

16 know the results of those efforts, but his effort is worthwhile. These

17 factors are positive factors that have led my office to the conclusion

18 that his remorse is sincere, and it is our submission that remorse is an

19 appropriate factor for your consideration.

20 There is no doubt that Miroslav Bralo was a useful tool to others

21 whose perverse agenda was to cleanse the Lasva Valley of Muslims.

22 Miroslav Bralo enthusiastically served his masters. However, being a tool

23 for others does not excuse conduct which, by every measure, was excessive,

24 even when viewed through a prism distorted by war and conflict.

25 Miroslav Bralo still must be judged by his deeds, and so we come

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1 to the matter of sentence.

2 What is a fair sentence for Miroslav Bralo, who committed or who

3 aided and abetted in the murder of 21 people, 9 of whom were children?

4 What is a fair sentence for Miroslav Bralo, who tortured and brutally

5 raped a defenceless woman? What is a fair sentence for Miroslav Bralo,

6 who willingly participated in a criminal attack on a defenceless village,

7 an attack where he killed one unarmed man, or he set fire to houses, and

8 where he helped forcibly expel all of the Muslim villagers who survived

9 the carnage? What is a fair sentence for a man who intentionally blew up

10 a house of worship? What is a fair sentence for a man who uses civilians

11 as forced labourers and human shields and who in the process gratuitously

12 humiliated them?

13 For the crimes that Miroslav Bralo committed, in many courts of

14 the world, his sentence would be life; he would spend the rest of his life

15 in prison. And in some jurisdictions he would forfeit his life. In this

16 institution, he can be incarcerated for the rest of his life.

17 It is our submission, Your Honour, that individually each of these

18 crimes merits a substantial prison sentence. Collectively, they deserve

19 more. In light of the gravity of the offences committed by Miroslav Bralo

20 and taking into consideration the factors of mitigation that are merited

21 in this case, it is our submission that the appropriate sentence for

22 Miroslav Bralo is that he serve a minimum mandatory 25 years in prison

23 before he be considered for release.

24 Thank you, Your Honours.

25 JUDGE BONOMY: Thank you, Mr. Harmon.

1 [Trial Chamber confers]

2 JUDGE BONOMY: Mr. Cooper, we are going to continue with the

3 hearing, but we're going to have a five-minute break, and there are about

4 40 minutes on the tape. So if you can't manage it, then we'll obviously

5 have to accommodate you tomorrow, but I give you notice that that is the

6 position.

7 MR. COOPER: I'm grateful, Your Honour.

8 --- Break taken at 5.50 p.m.

9 --- On resuming at 5.59 p.m.

10 JUDGE BONOMY: Mr. Harmon, I've two questions. I hadn't, prior to

11 your submission just now, made the link between the name of the victim in

12 respect of whose killing the accused was actually in custody before the

13 commission of the matters we're dealing with, and the family victims of

14 the same name who were a group of his victims. Can I take it that there's

15 nothing sinister in that connection, that you simply mention it as a

16 matter of fact and no more than that?

17 MR. HARMON: That's all I mention it for, Your Honour.

18 JUDGE BONOMY: And the second question relates to the sentence

19 that you've just proposed. Is there any precedent in the jurisprudence of

20 the Tribunal for a sentence to be a minimum period before the expiration

21 of which it will not be possible for the accused to be released -- or to

22 be the subject of an application for earlier release?

23 MR. HARMON: I believe there is, Your Honour. I refer Your

24 Honours to the judgement on the sentencing appeal of Dragan Nikolic of

25 4 February 2005, paragraph 95, in which the Appeals Chamber said, and I

1 quote: "Accordingly, the Appeals Chamber finds that a Trial Chamber may

2 determine what it considers to be the minimum term of imprisonment an

3 accused should serve."

4 In a separate opinion, Judge Shahabuddeen says, and I

5 quote: "There's no doubt about the availability of the power to order a

6 minimum term of imprisonment."

7 That's the authority that we cite, Your Honour.

8 JUDGE BONOMY: Was that the first time that that had happened? Or

9 are you not aware?

10 MR. HARMON: I don't know, Your Honour. I'm aware of this

11 authority. I'm more than happy to continue to research it, Your Honour,

12 and make written submissions on the point.

13 JUDGE BONOMY: I understood that, generally speaking, the regime

14 in which the sentence was being served would be the regime that would be

15 followed. And of course, some regimes do have the sort of provision

16 you're talking about.

17 MR. HARMON: I think, Your Honour, that if the Court were to

18 impose an order with a minimum mandatory sentence, then it would be

19 incumbent on locating a regime that would honour such a sentence.

20 JUDGE BONOMY: Thank you very much.

21 Now, Mr. Cooper, we are properly geared up to hear you fully, so

22 we would like now to hear your submission.

23 MR. COOPER: I'm obliged.

24 Well, Your Honours, might I first address the points that Your

25 Honours have raised to Mr. Harmon. It is, of course, appropriate that

1 there should be consistency in sentence between cases at this Tribunal

2 which share a factual basis. As Your Honours will see from my sentencing

3 brief that I make reference to three cases which share, in certain

4 respects, an identical factual basis to this one. And I must say that the

5 submissions that I have made make reference to the sentences actually

6 passed in those cases. And I understand those cases as operating in the

7 original framework, if I can put it like that, of a sentence which takes

8 effect in accordance with the regime in the country in which that sentence

9 is served. It occurs to me that if Mr. Harmon is right, then his proposed

10 sentence would be of very much graver effect than any of the cases in the

11 matters that I've cited, even though the headline figure may appear to be

12 the same.

13 For a country which gives between one third and one half of credit

14 for good behaviour in the course of conduct of a sentence, the effect of

15 Mr. Harmon's approach would be to propose a sentence of perhaps 40 or even

16 50 years. So might I start with a very substantial health warning in

17 relation to my submissions, because I'm comparing what I invite the Court

18 to impose, that is, in the circumstances of this case, a sentence which

19 will have effect in accordance with the regime in which that sentence is

20 served. That that would accord with the comparator cases which I've

21 cited.

22 If it is that Mr. Harmon is to propose to make additional written

23 submissions about that matter, plainly, it would be appropriate to hear

24 from the Defence as well. But essentially, the question of sentence is

25 for the Trial Chamber. It's for the Trial Chamber to make an assessment

1 of the gravity of the offending, aggravated by those matters which are

2 properly available, and mitigated by whatever mitigation there is, no

3 matter under which head it might fall.

4 And I'm going to invite the Court to do no more than look at the

5 entire picture, which includes the gravest offending, and I accept

6 significant aggravation, but which also contains some matters which should

7 also be taken account of in mitigation of the eventual sentence.

8 So in terms of my submissions, I'm going to start and end by

9 referring to my client's remorse. It's deep and long-lasting, and it is

10 active. And I'm going to set out what I mean by those matters in the

11 course of the submissions I make. But I have to make clear at the very

12 outset that my client, and I, on his behalf, acknowledge the gravity of

13 the offending of which Your Honours are now seized of. I acknowledge not

14 only the suffering of those directly affected in 1993, but also the

15 continuing suffering of those directly or indirectly affected in every

16 month of every year from that date to this. Some of those matters are set

17 out in the extremely powerful statements which have been provided as part

18 of the Prosecution brief, which are very effecting, and this Trial Chamber

19 will properly recognise that those are only a sample of the voices of

20 people who were affected by Mr. Bralo's offending.

21 The second thing that I have to acknowledge expressly on

22 Mr. Bralo's behalf is his personal responsibility for each of the actions

23 which have led to harm. Whatever the context, those were acts which he

24 acknowledges were wrong, and that he always knew to be wrong.

25 JUDGE ROBINSON: Is that separate from remorse?

1 MR. COOPER: I think, with respect, that's a component of his

2 remorse. It's a recognition now of something which he accepts he was

3 seeking to deny at the time. Your Honour will be aware that a handwritten

4 statement has been provided by Mr. Bralo which sets out something of his

5 thinking then about his offending behaviour, about his behaviour in the

6 immediate aftermath of it, and also the journey, as Mr. Harmon has

7 described it, which has brought him from then to now, and the realisation

8 that it is his responsibility and that the matters that he is to be

9 sentenced for are matters which, in reality, were matters which could

10 never, ever have been justified, whether they were subject to orders or

11 not, they could never, ever have been justified. And he, in carrying them

12 out, no doubt together with others, that he was fully aware of the

13 unlawful nature of those acts, not only unlawful, but also immoral.

14 Might I go on by acknowledging the aggravating factors that have

15 been relied on by the Prosecution in this case. I don't take issue with a

16 single one of the factors that have been brought forward. As to the large

17 number of victims, that is plainly aggravating. Your Honours are, of

18 course, entitled to aggravate sentence to acknowledge that aggravating

19 feature.

20 Mr. Harmon's made reference to the Deronjic case in relation to,

21 as he points out, a similar massacre, in which civilian men, women, and

22 children were effectively ordered to their deaths by Mr. Deronjic and the

23 sentence that resulted in that case. Well, plainly, many similarities

24 apply in this case as well.

25 Secondly, Mr. Harmon relied on the youth of the victims. And once

1 again, I take no issue with that at all. That is a gravely aggravating

2 feature of this case.

3 And thirdly, the exacerbated humiliation regarding one victim in

4 particular, Witness A. Once again, that is plainly right to take account

5 of.

6 Mr. Harmon also invites the Court to consider victim impact and

7 respectfully we agree. That is entirely appropriate, and the voices from

8 those who have been named and others who cannot be, yet others again whose

9 statements have not been obtained, those should be listened to, and

10 listened to as individuals as well as cumulatively.

11 On behalf of Mr. Bralo, there's one thing to say about one of

12 those witness statements, and that's the witness statement of Witness C,

13 who describes a particular episode in either her house or a particular

14 house. That episode is not one that Mr. Bralo, having thought about the

15 matter, recognises.

16 JUDGE BONOMY: Which page?

17 MR. COOPER: Forgive me.

18 JUDGE BONOMY: I have it. It's Attachment B.

19 MR. COOPER: Certainly. It's Attachment B and it's dealt with in

20 my friend's brief at his page 14, paragraph 62 onwards. The particular

21 passage is set out at paragraph 63 of Mr. Harmon's brief. Indeed, it's

22 the final sentence of that paragraph.

23 As I say, that's an episode which the defendant does not

24 recognise. However, I hope that the Court can properly take account of

25 every aspect of what is said by Witness C in this case, in this way. On

1 behalf of Mr. Bralo, there can be no doubt that Witness C has been

2 profoundly affected by her indirect victimisation at Mr. Bralo's hands.

3 The full extent of her statement makes extremely troubling reading, and

4 Your Honours will know that that is further enhanced by the statement of a

5 support worker who assists the family. And I hope the Court considers it

6 proper to take account of what has been set out in her statement. There

7 can be no doubt that is her reality. And if her reality is that she

8 continues to be troubled by images and nightmares with Mr. Bralo in them,

9 then this Trial Chamber would be remiss not to take those matters into

10 account.

11 So I hope, with that one exception in relation to one passage in

12 the statement of Witness C, I can say that there can be no exception taken

13 to any single sentence in any of the remaining statements that have been

14 supplied in the extremely powerful documents annexed to the Prosecution

15 brief. And these provide material which is important to be fully

16 recognised by the Trial Chamber in passing sentence.

17 Your Honour, in 1993, Mr. Bralo lived in Nadioci, near to Vitez.

18 He was a young man of 25, married, a man of good character, and within the

19 space of two or three months, the world in which he and his neighbours

20 lived was turned irrevocably upside down. Within the space of two or

21 three months, he had perpetrated the gravest of crimes.

22 Mr. Harmon has referred to the background within this turbulent

23 region at this turbulent time, and Your Honours will know that in my

24 sentencing submissions, I've drawn attention to two particular

25 considerations which should be considered in assessing this course of

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1 offending.

2 The first of those I set out in my submissions at paragraph 47.

3 That's the deteriorating political and military situation in Vitez. And

4 Your Honour will see that my submissions echo and are echoed by those of

5 Mr. Harmon, in whose own brief there is a helpful report which seeks to

6 set out some of the immediate background, the poisoning of the airwaves

7 with messages of hate. In particular, in the days immediately before the

8 attack on Ahmici, specific misinformation, which was noted by

9 international observers, at paragraph 12 of the rapporteur's report,

10 adding greatly to the climate of fear and hatred in the area.

11 So it is, in my submission, entirely appropriate that the Court

12 should be aware of the context, aware of the enormous pressures placed on

13 many people of good character and of bad character, actors and those who

14 were passive, political and not political.

15 It was in that context that the second matter that I draw

16 attention to occurred, and that is the most unusual set of circumstances

17 leading to my client's incarceration at Kaonik Prison for the period

18 immediately up to the very eve of the attack on Ahmici.

19 Now, the unusual circumstances derived from initially an attack on

20 Mr. Bralo's own home, followed by an attack by him on the person he

21 believed to be its perpetrator. Now, the Prosecution have chosen not to

22 indict that substantive offence, but they do point out in their own

23 sentencing brief the enormous significance of an attack upon the house of

24 a person. And Your Honours have, in paragraph 24 of the Prosecutor's

25 brief, a very helpful citation from an expert witness called in the

1 Kupreskic case, specifically on the subject of the destruction of houses

2 and what that means. The destruction of a house, but also the destruction

3 of a home. In this particular case, the destruction of Mr. Bralo's house

4 is independently verified, or the damage to Mr. Bralo's house and to that

5 of his neighbours is independently verified by the investigation which was

6 carried out entirely properly in relation to the matters from February of

7 1993. And that's set out, as Your Honours know, in our Appendix C2.

8 But the fact of my client's imprisonment at this time, in February

9 and March of 1993, in those circumstances, at that time, made him, in my

10 submission, uniquely vulnerable to suggestion, but it goes much further,

11 to direct orders. The fact is that a person in my client's position at

12 that time, in those circumstances, being released in the way that he was

13 and on the terms that he was, to come under direct orders as a participant

14 in an attack, was in no position to be a discriminating or a critical

15 recipient of such unlawful orders.

16 So it is, in my submission, appropriate to consider the highly

17 unusual personal circumstances that took Mr. Bralo to Kaonik Prison and

18 led to his release, set against the backdrop of the increasingly turbulent

19 and destabilised situation.

20 Now, Your Honours will see that in the subsequent paragraphs of my

21 brief, I set out, from paragraph 51 onwards, particular factors which I

22 invite you to consider when coming to each of the offences for which my

23 client takes responsibility. Of course, there is a context for every one,

24 but I underline his personal responsibility for every action in relation

25 to each case.

1 The basis for the submissions I make is the agreed factual basis

2 in this case. I refer also to mitigating features, and I should turn now

3 to those.

4 I've referred, at my paragraph 64, to a series of matters which I

5 invite the Court to consider, in the balance, as matters which are

6 mitigating in character. They are of varied weight. And I invite Your

7 Honours to accept that every one of the matters that are proposed is

8 capable of carrying some weight and is properly considered by the Trial

9 Chamber. The matter of how much weight, of course, entirely for Your

10 Honours. But I've made reference to the prior good character of the

11 defendant, the immediate background to the offending. And at my

12 paragraph 68, I make particular reference to the use of Bralo, the use of

13 this defendant by his superiors.

14 In Mr. Harmon's brief, he makes a proposition, with which I

15 respectfully agree, that low rank, certainly low rank per se, is not to be

16 taken as a mitigating feature. But the use that was made by this

17 particular defendant in these particular circumstances was, in my

18 submission, so unusual as to amount to a mitigating feature. We say that

19 the targeted manipulation of an inferior is relevant, especially where so

20 much of this indictment has this defendant acting under direct orders and

21 in the immediate vicinity of a superior, and always under the implicit

22 threat of a return to prison if he did not comply with the instructions

23 given.

24 Therefore, as I've set out at the conclusion of that paragraph,

25 Mr. Bralo was used for a period in April and early May 1993 as a weapon of

1 war. He was used to commit murders, under orders, in the context of the

2 attack on Ahmici. He was used to commit rape, under orders, to facilitate

3 an interrogation. And he was used to frighten people by his commander

4 present at the trenches.

5 Now, I've described that as being the targeted manipulation of an

6 inferior to commit clearly criminal actions. And the circumstances in

7 which these behaviors occurred was, in my submission, such an unusual set

8 of circumstances that that's a matter which should properly be taken into

9 account.

10 I've referred also to the limited time period covered by this

11 indictment, again in relation to those charged against others. I've

12 referred in passing to the sheltering of others, and statements are

13 provided from two people who are able to say that even in this time of

14 appalling actions, that the defendant was plainly capable still of some

15 kindness.

16 I've referred, finally, to steps towards rehabilitation. And

17 really, that could be considered a heading for all that follows in the

18 submissions that I make, because every further element is at root a step

19 towards rehabilitation, which is a voluntary step, about which the

20 defendant also had a choice. And on his behalf, I invite consideration of

21 those steps that he's taken. He also has personal responsibility in

22 relation to those and is properly exercising it.

23 So I suggest that from 1996 onwards, the overwhelming evidence

24 from a very substantial number of witnesses, who knew this defendant, both

25 before the war period, during it, and after it as well, demonstrates that

1 he was a reflective and sometimes a very troubled man, albeit one who was

2 able ultimately to make a very significant positive contribution to those

3 with whom he lived. And I have in mind in particular the most recently

4 filed statements in relation to his period effectively working for the

5 assistance of the community.

6 In the period up to the present, this defendant has done nothing

7 to compound his crimes, and much to mitigate them.

8 Firstly, voluntary surrender. But as Your Honours know, there is

9 more of a story to this. Because not only did he voluntarily surrender in

10 2004, we set out the detail in the sentencing brief of his earlier

11 attempted surrender in 1997 to UN forces, in which he volunteered the

12 statement that he had killed in Ahmici and that he could no longer live

13 with his conscience. Those words were recorded by the officer to whom he

14 spoke, and they are available for the Court to provide a contemporaneous

15 record of his behaviour and his words.

16 Your Honours will know that he was not, in fact, arrested in 1997,

17 despite his wish, and he was thereafter freed by UN forces. And his

18 second surrender occurred within days of the unsealing of the previously

19 sealed indictment against him in November 2004.

20 The next element, guilty pleas, avoid trial, emotion, and

21 experience. Well, quite clearly, Miroslav Bralo is the first of any of

22 the Lasva Valley defendants to come to this Tribunal and plead guilty to

23 the matters they face prior to trial. And in so doing, he makes a

24 decisive break with a culture of excuse and denial. I've set out in my

25 brief the cost, in terms of time, and the cost in terms of the Tribunal,

1 of that culture of excuse and denial. But there is a bigger cost as well,

2 and that is the individual cost to every single witness who, in five

3 separate cases, has endured lying or untrue cross-examination on a basis

4 later found by the Court to be wholly misleading and effectively defences

5 based on fraud. And I say that in relation to each of the five cases

6 which are set out in those cases -- sorry, in that paragraph. In

7 particular, there is one witness who will be spared a further appearance

8 in this Court, and it will be apparent that Miroslav Bralo is the first of

9 any defendants to acknowledge directly his responsibility for offending

10 against that woman.

11 The next heading is guilty pleas reflect genuine remorse. And

12 there is again rather more to this point than there might be in many

13 cases, because Miroslav Bralo's remorse is reflected, in particular, in

14 admitting matters in Count 1 which could not be proved against him on the

15 basis of information available to the Prosecutor alone. I set out in full

16 the position in paragraph 27 of my brief. But in essence, it's this: The

17 defendant was originally charged with counts on an indictment, and from

18 his arrival at this Court, he indicated that that was an incomplete

19 account of his offending. He voluntarily made disclosures in relation to

20 each element of what is now Count 1. As a result of those voluntary

21 disclosures, offered for nothing, in exchange for nothing, volunteered

22 simply because they were true, as a result of that, the Prosecution felt

23 it right to amend the indictment to create a wholly new Count 1, which

24 covered all of this offending.

25 Some of that offending might have been proved by the Prosecutor,

1 but, as has been set out, it's quite clear that not all of it could have

2 been. And we've set out that, in certain respects, only a prima facie

3 showing was available to the Prosecutor on the basis of material

4 available. The defendant has pleaded guilty to that material anyway. And

5 in relation to a final matter, there was no information at all about that

6 matter, and the defendant pleads guilty again, making full admissions to

7 that behaviour.

8 So the defendant faced an original indictment. He acknowledged

9 more, and he has pleaded guilty to all.

10 The defendant has taken a step further. He has set out what is

11 intended to be a public document at Annex A1, which acknowledges his

12 personal responsibility for each of the crimes he's committed. He makes a

13 personal apology for his behaviour. And as Your Honours see, he has

14 called on others to assist the work of this Tribunal.

15 An extract is set out at my paragraph 78.2. And since this is not

16 yet a public document, but it will be, I'm going to ask for Your Honours'

17 indulgence while I read out passages from that statement which is before

18 you at my paragraph 78.2.

19 Mr. Bralo states this: "I wish to make a personal apology to each

20 one of my victims who I made to suffer and to each member of every one of

21 the families affected by my actions. I wish to say that I am truly sorry

22 for their suffering and the suffering of their loved ones. What I said in

23 Court last time, I really meant. I am guilty, and I deeply regret it. My

24 apology should go further. It should be bigger than the globe."

25 Your Honours, my client has set out in clear terms his

1 acknowledgment of personal responsibility. He says this: "These were

2 acts which I always knew to be wrong, which anyone would know to be wrong,

3 and for which there really can be no excuse at all."

4 He goes on: "Our wrongs were so terrible. I include others

5 here - that we even clung to them and tried to justify them. I tried to

6 be proud of my actions and to think they were the actions of a successful

7 soldier. Today I am ashamed of all of that, ashamed of my conduct, and

8 ashamed how I behaved."

9 He describes, Your Honours, in that statement being present "when

10 women and children were gunned down in front of me." He says: "At that

11 moment, the good soldier in me was gone, silent."

12 He states that he was not brave enough to speak out for people

13 whose lives should have been saved. At that time, that would be the

14 heroic act.

15 In the final portion of this more lengthy statement, Mr. Bralo

16 refers to and acknowledges the moral authority of this Tribunal. He

17 says: "I would have said let people take their own course, but I do not

18 believe it. I would say that I encourage anyone who can do so to come

19 forward and talk to their neighbours, to talk to the Court and begin to

20 make their peace."

21 Your Honour will have the full text -- Your Honours already have

22 the full text of that statement set out at Annex A1.

23 In addition to that document, Mr. Bralo has given a detailed

24 statement in relation to matters of interest to the Prosecutor. He has

25 addressed questions that have been asked of him and he has, through

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1 Annex A2 of the sentence brief, produced a statement which is one which

2 will be available and to which he is committed.

3 Further, Mr. Bralo has provided the assistance to United Nations

4 authorities, which is set out at paragraph 79 and paragraph 80, about

5 which I hope that Your Honours will hear further within a short period.

6 Your Honours note that this includes assistance to the mine action centre

7 regarding the clearance of mines. And Your Honours will recall that

8 Mr. Bralo was a member of a reconnaissance unit which was also involved in

9 minelaying and minesweeping, and he has particular information about those

10 matters. And indeed, I can say that he's able to provide information

11 about areas which are not yet mine-free, and that is a significant help to

12 those who may be affected.

13 I go on at my paragraph 81 to refer to positive cooperation of

14 value to the Tribunal, because Your Honours will note that at the time

15 that Mr. Bralo attempted to surrender to UN forces in 1997, he came armed

16 with documents that he had with him, which he was happy to disclose, which

17 were truthful documents, and have been relied upon and accepted as

18 truthful documents. He did in that context assist the work of the

19 Tribunal. He also renders himself compellable to repeat the truths that

20 are set out in his factual basis in any future proceedings to which that

21 testimony may be relevant.

22 I'm finally going to refer to positive cooperation, which is not

23 simply of value to this Tribunal and its work, but it is of value to the

24 people of Ahmici, of the area injured by his actions.

25 I've indicated that it is a tribute to the character of those who

1 endured and survived the events of Ahmici that that community can temper

2 its outrage at the wound done to it with expressions of compassion and

3 conspicuous fairness to a person even, as Mr. Bralo is, charged with the

4 gravest of crimes. And Your Honours may be astonished to find within the

5 papers that you will read in relation to sentence, statements of two

6 residents of Ahmici, both of whom profoundly affected by the events of

7 April 1993, who are yet able to find it in their hearts to consider

8 Mr. Bralo's actions, consider his stance towards the Tribunal, and give

9 him some respect for that stance.

10 Your Honours will have seen the statement of Mehmed Ahmic, the

11 president of the municipality of Ahmici, referred to in my sentence brief

12 at paragraph 85. He stated to our investigators that he was grateful for

13 the opportunity to have his words and the thoughts of Ahmici considered by

14 the Tribunal.

15 [Trial Chamber and registrar confer]

16 JUDGE BONOMY: Can we just go into private session for a moment,

17 please?

18 MR. COOPER: Certainly.

19 [Private session]

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

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 [Open session]

14 THE REGISTRAR: We're in open session.

15 JUDGE BONOMY: Please continue, Mr. Cooper.

16 MR. COOPER: I'm obliged.

17 I was referring to the statement of Mehmed Ahmic, who expressed

18 himself grateful for the opportunity to have his words and the thoughts of

19 Ahmici considered by the Tribunal. He stated this: "I know that Miroslav

20 Bralo is the first of the defendants from this area to go to The Hague in

21 order to admit their guilt and to do so without taking us through a trial.

22 I consider that pleading guilty and showing remorse is positive. It is a

23 sign of some ethical position, some morality. It would be good if

24 everyone did the same."

25 He goes on: "I'm asked about the impact that this will have on

1 relations in this area. I say it will have a fantastic effect. We are

2 now 12 years after Ahmici. If five or six or seven years ago there were

3 people like Miroslav Bralo who would say they had done this and this, and

4 that and that happened, it now would be much better for people to live at

5 peace with one another here and move from the hard positions against each

6 other. They, the actors, the perpetrators, they are often the only ones

7 who really know just what happened. It is time to clear their consciences

8 and I'm glad that those with some decency are now telling their crimes."

9 Your Honours will see the full text of that powerful statement.

10 And I pause just to note that, of course, this defendant did surrender in

11 1997. In fact, more than eight years ago. And as Mr. Harmon has referred

12 to his experience of 11 years at this Tribunal, plainly, that would have

13 had a symbolic impact had his efforts to surrender been met as they

14 perhaps should have been. And when I make that point, I refer, of course,

15 again to the time, effort, expense of pursuing a range of Lasva Valley

16 trials against the sullen resistance of the defendants in those cases.

17 Your Honours, in terms of assessing sentence, my respectful

18 submission is this: That there are powerful matters to be considered on

19 both sides. I've acknowledged grave offending, with significant

20 aggravating features, albeit not with that aggravating feature of

21 superiority, which is a factor in each of the three cases that I have

22 relied on, as guides and comparators. On the other hand, and wholly

23 unlike each of those three other cases of Messrs. Kordic, Santic, and

24 Furundzija, there is substantial mitigation to be considered. For a very

25 substantial period, this defendant has done nothing to aggravate, and much

1 to mitigate, his behaviour.

2 The aggravation which I've accepted, the aggravating features that

3 I've accepted, of course will have been present in their entirety in the

4 cases of Kordic, Santic, and Furundzija. In relation to the matters of

5 humiliation, each one of those will have been considered by the Furundzija

6 Trial Chamber in assessing the appropriate sentence for Anto Furundzija,

7 but there was the additional aggravation in that case of ordering the

8 attack.

9 In the case of Vladimir Santic, the youth of the victims was, of

10 course, considered by the Trial Chamber and the Appeals Chamber. But

11 there was in his case the additional aggravation of command. And

12 similarly, high numbers, of course, appropriate, and I expressly

13 acknowledge it, in the case of Dario Kordic, that was also a factor,

14 together with others. But in his case, of course, there was the express

15 finding of the additional aggravation of being the responsible political

16 leader, in relation to an indictment that went for a period not of just

17 two months or so but of two years and four months, involving offending not

18 just in the locality of Ahmici but in the entire Lasva Valley and beyond

19 it as well.

20 There is, in my submission, nothing in the aggravating features of

21 this case which takes this case beyond those that I've cited. We submit,

22 therefore, that the cases I've cited remain a firm anchor, a sound

23 departure point for considering the present sentence.

24 Mr. Harmon has made his submissions about sentence length. He's

25 acknowledged a number of matters which are included in the Defence

1 sentencing brief, and for that I am grateful to him. His sentencing --

2 his own sentencing brief came to a conclusion about a proposed sentence,

3 which does not appear to have been modified in any way by the new material

4 which he's discovered in the course of the Defence sentencing brief. And

5 although he's made express acknowledgment of a number of factors,

6 including the genuineness of the remorse, together with some other matters

7 which are set out in our pleadings, it would, in my submission, be

8 appropriate for there to have been an express acknowledgment that those

9 matters should properly have an impact on sentence. And there might have

10 been that acknowledgment expressed in a modification of the sentence which

11 the Prosecution sought. But in reality, it's the Trial Chamber's view.

12 And we would invite the Court to be aware very much of the future in

13 deciding the appropriate sentence.

14 The two statements that I've referred to in particular as voices

15 from Ahmici speak really from the heart of an injured community. It's a

16 community of which my client was a member. He was then 25. He's now 38.

17 His stance has won him some respect. His stance has begun to enable the

18 community to make its peace. This is an active stance, it's an ongoing

19 stance, and in my submission, it is profoundly to be encouraged.

20 I concluded my submissions in this way: A substantial sentence

21 for Mr. Bralo is clearly warranted. But we submit that a sentence which

22 reflects Mr. Bralo's self-evident and active remorse would nevertheless

23 send a message of hope and encouragement to defendants and victims alike

24 that this Court prizes nations of rehabilitation and reconstruction. This

25 goes for communities and it goes for individuals.

1 Would Your Honours forgive me one moment.

2 [Defence counsel confer]

3 MR. COOPER: I'm grateful, Your Honours.

4 In concluding, I say simply this: By Mr. Bralo's stance, he has

5 made a decisive break with a culture of excuse and denial. He has instead

6 acknowledged his own personal responsibility. In my respectful

7 submission, he has taken a brave step in acknowledging the full extent of

8 his behaviour here. It is something of an unprecedented step. It cannot

9 undo the wrongs of the past, but it is the best guarantor, in my

10 submission, that wrongs of that kind will not and cannot be repeated.

11 I'm very grateful to Your Honours for hearing my submissions.

12 That's how I put the mitigation on behalf of this defendant.

13 JUDGE BONOMY: Thank you, Mr. Cooper.

14 [Trial Chamber and registrar confer]

15 JUDGE BONOMY: Just for the avoidance of doubt: Both parties have

16 submitted their material as annexes to the briefs which were presented,

17 and it seems to me unduly bureaucratic to go through an exercise of

18 numbering these as exhibits. So what I propose is that they are simply

19 left in that position, that they are annexes to the briefs which we have

20 and which we will consider. And that so far as the Prosecution brief is

21 concerned, they're called attachments A to Q, and so far as the Defence

22 brief is concerned, they are annexes A to D, as revised. And if you're

23 content with that, then what we have before us are your submissions, plus

24 these supporting documents. And we also, of course, have the statement of

25 Mr. Bralo.

1 MR. COOPER: I'm obliged. Might I just add that the entire

2 Defence sentencing brief was filed confidentially, and it is my intention

3 to make a public filing as soon as I possibly can, and to ensure that the

4 matters that I've quoted are available in public form at the earliest

5 possible opportunity.

6 JUDGE BONOMY: Thank you, Mr. Cooper.

7 Yes, Mr. Harmon.

8 MR. HARMON: Your Honour, that is satisfactory. Our filing is

9 public, with the exception of certain attachments that should remain under

10 seal.

11 JUDGE BONOMY: Thank you very much.

12 Well, I, on behalf of the Trial Chamber, thank both counsel for

13 the very full and helpful submissions they've made this evening, and also

14 for these very helpful briefs which were submitted by both. We shall

15 reserve judgement and pronounce our determination in this case as soon as

16 possible.

17 The Court is now adjourned.

18 --- Whereupon the hearing adjourned at 6.59 p.m.

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