Tribunal Criminal Tribunal for the Former Yugoslavia

Page 167

1 Thursday, 4 September 2003

2 [Plea Hearing]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 3.02 p.m.

6 JUDGE SCHOMBURG: Please be seated. Good afternoon to everybody.

7 May we please hear the case.

8 THE REGISTRAR: Good afternoon, Your Honours. Case number

9 IT-94-2-PT, the Prosecutor versus Dragan Nikolic.

10 JUDGE SCHOMBURG: Thank you. May I ask you, Mr. Nikolic: Can you

11 follow the proceedings in a language you understand?

12 THE ACCUSED: [Interpretation] Your Honour, yes.

13 JUDGE SCHOMBURG: Thank you.

14 May I then have the appearances, please, for the Prosecution.

15 MR. YAPA: Thank you, Your Honour. Appearances for the

16 Prosecution: Myself, Upawansa Yapa; Ms. Patricia Sellers; and Mr. William

17 Smith. Ms. Boles is the case manager. Thank you.

18 JUDGE SCHOMBURG: Thank you.

19 And for the Defence, please.

20 MR. MORRISON: Your Honour, it's Howard Morrison, lead counsel for

21 the defendant; co-counsel, Tanja Radosavljevic.

22 JUDGE SCHOMBURG: Thank you.

23 Today we'll conduct a Status Conference, and let me start

24 immediately with the question that we had already last time before us.

25 Did the parties come to any agreement? And if so, could you please be so

Page 168

1 kind and explain the agreement to the Trial Chamber.

2 MR. MORRISON: Your Honour, the answer to the question is in the

3 affirmative. There is an agreement, and a copy will, I anticipate,

4 instantly be supplied to you. When that has happened, I would ask that

5 the defendant, Mr. Nikolic, be re-arraigned on the indictment.


7 May I ask the Prosecution: Could you please explain the main

8 details of the agreement.

9 MR. YAPA: Thank you, Your Honour. In addition to what my learned

10 friend stated just now, may I say that before Your Honours we have filed a

11 joint motion. The motion has been filed confidentially. And attached to

12 the motion we have an agreement, a plea agreement, also confidentially.

13 And as to the plea agreement, there is the former documents that have been

14 filed in this case, the indictment that was read out to the accused some

15 time back, and the translations of the indictment and the documents.

16 Before I get on to the plea agreement as such, may I mention the

17 reasons for filing the joint motion and the plea agreement

18 confidentially. Actually, it was because of some of the terms in the plea

19 agreement. So in my address before Your Honours now, in respect of the

20 plea agreement, I will refer to the passages in the plea agreement which

21 can be in the open. There will not be any problem in respect of those.

22 But there may be certain areas which will have to be kept confidentially,

23 so those I will not be mentioning. And Your Honour, may I ask the Defence

24 and myself in respect of those paragraphs which I will not be mentioning.

25 Basically, the plea agreement is that the accused has agreed to

Page 169

1 plead guilty to the indictment in its entirety; that is, the indictment of

2 four charges against him, he has agreed; and also at the same time he

3 agrees with the factual basis, the facts which supported the charges

4 against him.

5 Your Honours will be pleased to see in paragraph 1 of the plea

6 agreement we state that the document constitutes the plea agreement

7 between the accused, Dragan Nikolic, through his counsel, Howard Morrison,

8 and the Office of the Prosecutor. The purpose of this agreement is set

9 forth in its entirety: the understanding of the parties as to the nature

10 of the agreement; the consequences of Dragan Nikolic's plea of guilty; and

11 to assist the Trial Chamber in ensuring, pursuant to Rule 62 bis of the

12 Tribunal's Rules of Procedure and Evidence, that the plea is voluntary and

13 informed; and to set forth the factual basis for the crimes and his

14 participation in those crimes. This is -- of course, we are repeating the

15 Rules applicable, which Your Honours are well aware of.

16 Then in respect to the terms of the agreement, there are certain

17 passages which I'm sure my learned friend will refer to, because it is a

18 joint motion. These are the undertakings of the accused. Paragraph 3

19 refers to what the accused has -- Dragan Nikolic has undertaken.

20 In respect of the nature of the offence, Your Honours will be

21 pleased to see in III there is the legal basis, and what the accused

22 understands in pleading guilty in respect of the counts that -- the

23 charges, the crimes with which he has been charged.

24 Paragraph 10 of the plea agreement, which is at page 5, is an

25 important one. The factual basis established in the crimes described in

Page 170

1 count 1 to 4, Dragan Nikolic's part is contained in the third amended

2 indictment which is attached to this agreement. Dragan Nikolic has

3 reviewed with his attorney the factual basis and agrees with the specific

4 factual allegations set forth therein.

5 There is reference to the consideration by the Prosecutor in V.

6 Now, in respect of this, since there is certain section which is VI and

7 since 12(1) has a bearing on that paragraph, that is, paragraph 6, I shall

8 not be making reference to paragraph 1, but if Your Honours please, Your

9 Honours will be pleased to question me on that. But I submit to Your

10 Honours that one is linked to VI. In fact, it is paragraph 13 of the

11 agreement.

12 We have made a request in this plea agreement that the Prosecutor

13 and the Defence, that the Trial Chamber schedule a public sentencing

14 hearing within which both parties may submit any relevant evidence that

15 may assist the Trial Chamber in determining an appropriate sentence,

16 pursuant to Rule 100. Then also it is stated - this is also a

17 consideration by the Prosecutor - that the accused's plea represents a

18 full accounting of his criminal behaviour in April 1992, and including

19 September 1992, whether or not all of the accused's crimes have been

20 included in the third amended indictment.

21 Then also the Prosecutor will advise any national domestic court

22 regarding the accused's culpability for any further crimes alleged from

23 April 1992 until and including September 1992. That they have been dealt

24 with by way of the sentence provided by the Trial Chamber. Of course,

25 this is something to happen in the future.

Page 171

1 Five, that regarding the accused's criminal conducting in

2 Vlasenica from April 1992 until and including September 1992, that the

3 Tribunal's Office of the Prosecutor has primacy over the Prosecution of

4 those crimes. There is a paragraph in VII that is in respect of the again

5 on the part of the accused, which will be explained by my learned friend.

6 Then we have also, which is for Your Honours' consideration, in

7 paragraph 8, a declaration by the accused. Then the plea agreement ends

8 with the declaration by counsel, and also it is stated except as expressly

9 set forth in this agreement, there are no additional promises,

10 understandings or agreements between the Office of the Prosecutor and

11 Dragan Nikolic or his counsel, Mr. Howard Morrison.

12 That's the explanation that I could provide to you. I thank you

13 Your Honour.

14 JUDGE SCHOMBURG: May I ask the Prosecution: Is there any

15 recommendation on the sentence?

16 MR. YAPA: There is. This is the paragraph that I made reference

17 to, that is, the paragraph 1, coming under 12, subparagraph 1 under 12,

18 under V, consideration by the Prosecutor, there is a recommendation that

19 has been made by the Prosecution. Your Honour will be pleased to see that

20 it has to be linked with paragraph 13.

21 JUDGE SCHOMBURG: As for reasons of transparency, may I ask what

22 is the recommendation of the Prosecution.

23 MR. YAPA: The Prosecution has recommended a 15-year term.

24 JUDGE SCHOMBURG: Thank you.

25 May I ask the Defence: What about your contribution, waive of

Page 172

1 rights and so on, before we turn to the accused himself?

2 MR. MORRISON: Your Honours, of course, those matters set forth by

3 my learned friend for the Prosecution are accurate and indeed a repetition

4 of the matters set out verbatim in the plea agreement. I would

5 specifically draw Your Honours' attention to IV, penalty, paragraph 11. I

6 say at this stage because it's in counterpoint to the matter just raised

7 by my learned friend as to the recommendation. For the sake of

8 transparency, so that all those understand that the powers of the Court

9 are, as I'm about to describe, I read it verbatim:

10 "Dragan Nikolic understands the maximum sentence that could be

11 imposed by the Trial Chamber for a guilty plea to the crimes in the third

12 amended indictment, is a term of imprisonment up to and including the

13 remainder of his life as described in Rule 101 A. In determining the

14 sentence the Trial Chamber shall take into consideration such factors as

15 the gravity of the offence any aggravating or mitigating circumstances,

16 including the substantial cooperation with the Prosecutor by the convicted

17 person before or after the conviction and the individual circumstances of

18 the convicted person pursuant to Article 24(2) of the Statute and Rule

19 101(b). The Prosecutor and the Defence understand the Trial Chamber is

20 not bound by any agreement of sentence specified by the parties."

21 That, of course, as Your Honours are well aware, is a standard

22 paragraph which would be included in any such plea agreement.

23 My learned friend made a reference to, under V, 12(1), being

24 linked to the matters in the agreement under VI, paragraph 13. It really

25 comes to this: There is part of the agreement which, at the sentencing

Page 173

1 hearing, will be fully aired and understood by all parties concerned. At

2 the moment, it is not necessary for any of the parties to go into that in

3 any detail, because if it did, it may be that there would be difficulties

4 in the Defence adducing all of the matters that it wished to adduce by way

5 of mitigation in this case, and out of fairness to the accused I know no

6 one would want to put any hampering or break on that. So unless asked to

7 do so, I say no more about that.

8 I go on to the waiver of rights, which is under VII, beginning

9 paragraph 14. I summarise, because it is there set forth verbatim: The

10 defendant understands by virtue of pleading guilty he gives up his right

11 to plead not guilty and to require the Prosecution to prove the charges in

12 the indictment beyond a reasonable doubt. The right to prepare and put

13 forward a defence to the charges as opposed to a mitigation, of course;

14 the right to be tried without undue delay; the right to be tried in his

15 presence and to defend himself in person at trial, the right to examine at

16 his trial or have examined the witnesses against him.

17 I summarise, but basically -- I should add to testify against

18 himself or confess guilt. But the last is, as it were, unimportant,

19 because, of course, that's the purpose of this hearing today. In other

20 words, the accused fully understands that by pleading guilty he does not

21 have the right to the trial process. He has a right to a sentencing

22 process and for mitigation to be placed before the Court before any

23 determination of sentence, and of course by pleading guilty he doesn't

24 waive his right to be represented by counsel at all stages he goes on

25 under VIII paragraph 16, and I will read this verbatim, it's signed by the

Page 174

1 defendant:

2 "I Dragan Nikolic have read this plea agreement including the

3 attached third amended indictment which sets forth in its entirety the

4 understanding of the parties and having carefully reviewed every part of

5 it with my attorney Howard Morrison" --

6 THE INTERPRETER: Could Counsel please slow down.

7 MR. MORRISON: -- "to the elements of the offences charged." I'm

8 sorry. "-- of possible defences and of the consequences of entering into

9 the agreement. No promises or inducements have been made to me other than

10 those contained in this agreement. Furthermore, no one has threatened me

11 or forced me in any way to enter into this agreement, and I have entered

12 into this agreement freely and voluntarily, and I am of sound mind. I

13 understand the terms of this agreement and I voluntarily agree to each of

14 the terms."

15 And it is dated the 2nd of September of 2003 and signed by the

16 defendant, Dragan Nikolic. And under IX, paragraph 17, there is a

17 mirrored declaration of the important matters, and that's also dated the

18 2nd of September and signed by myself.

19 Your Honour, unless I'm asked to either go into any more detail or

20 make any specific explanation of any other matter, that's the Defence

21 contribution at this stage.

22 JUDGE SCHOMBURG: Thank you very much. It's my understanding that

23 there are no additional promises or other agreements besides the one cited

24 by you. I see both parties nodding. May I then ask you, Mr. Dragan

25 Nikolic, in person: Have you ever been threatened or forced in any way

Page 175

1 before entering into this agreement?

2 THE INTERPRETER: Microphone, please.

3 THE ACCUSED: [Interpretation] Neither any of my attorneys or

4 anybody else, my family members or anybody else, influenced me in coming

5 to this decision. It is my own personal decision, and I have nothing

6 further to add. There were no threats, no suggestions either way.

7 JUDGE SCHOMBURG: No promises, no inducements?

8 THE ACCUSED: [Interpretation] Absolutely none.

9 JUDGE SCHOMBURG: May I ask, in addition: Did you understand all

10 the terms of this agreement and was it read to you in a language you

11 understand?

12 THE ACCUSED: [Interpretation] Your Honours, it was read out to me

13 twice. I had two or three meetings with my attorneys and we went through

14 the document point by point. All the points of the agreement were

15 explained to me, and I am fully conscious of what the agreement contains.

16 So that I am fully apprised of it and everything is clear to me.

17 JUDGE SCHOMBURG: One crucial point is no doubt the one already

18 mentioned beforehand, that according to Rule 62 ter (B), the Trial

19 Chamber -- I quote from our Rules: "The Trial Chamber shall not be bound

20 by any agreement specified in paragraph A." And as it was already

21 verbatim read out by your counsel, it is your understanding that the

22 maximum sentence that could be imposed by the Trial Chamber for a guilty

23 plea to the crimes in the third amended indictment is a term of

24 imprisonment up to and including the remainder of your life, as described

25 in Rule 101(A) of our Rules. Of course, it's today not the time to

Page 176

1 discuss sentence when we don't have the necessary facts. Of course, we

2 have to take into account and into consideration all the facts, such as

3 the gravity, aggravating, mitigating circumstances, and whether or not

4 you're ready for substantial cooperation with the Prosecutor. But it has

5 to be absolutely clear that a recommendation by the Prosecution is nothing

6 more but a recommendation, and the final arbiter for the sentence is no

7 doubt the Bench, this Trial Chamber. Did you understand this?

8 THE ACCUSED: [Interpretation] Yes, in full.


10 [Trial Chamber confers]

11 JUDGE SCHOMBURG: May I then ask you: Are you prepared to change

12 your plea? Until now you had pleaded not guilty.

13 THE ACCUSED: [Interpretation] Your Honours, I am prepared, yes.

14 JUDGE SCHOMBURG: Then let us, for a better understanding, proceed

15 in the following way: I will read out paragraph by paragraph the

16 indictment, and if you could be so kind and answer whether the statement

17 contained in this paragraph is correct or not. I don't want to follow the

18 order of the indictment, because for a better understanding it is easier

19 to start with paragraph 36, the general legal allegations, and then

20 followed by additional facts. It starts with saying:

21 "All acts or omissions charged as crimes against humanity

22 occurred during an armed conflict in Bosnia-Herzegovina and were related

23 to a widespread or systematic attack directed against a civilian

24 population, specifically the Muslim and non-Serb population of the

25 Vlasenica municipality."

Page 177

1 Is this correct?

2 THE ACCUSED: [Interpretation] It is correct, Your Honour.

3 JUDGE SCHOMBURG: "The municipality (opstina) of Vlasenica is in

4 eastern Bosnia and Herzegovina, approximately 50 kilometres west of the

5 Serbian border and approximately 120 kilometres north-east of Sarajevo.

6 According to the 1991 census, the municipality had approximately 33.817

7 citizens, of whom approximately 55 per cent were Muslim, 47 [sic] were

8 Serb, and 2 were described as 'other.' The town of Vlasenica is located

9 within the municipality of the same name. In 1991, the town of Vlasenica

10 had approximately 7.500 citizens, approximately 65 per cent of whom were

11 Muslim and 35 per cent were Serb." Is that correct?

12 THE ACCUSED: [Interpretation] Well, I assume it is. These are

13 data, official data. I have not checked them out, but I do believe that

14 that is so.

15 JUDGE SCHOMBURG: You have no reason to doubt these figures;

16 correct?

17 THE ACCUSED: [Interpretation] Correct. I have no reason to doubt

18 them, Your Honour.

19 JUDGE SCHOMBURG: "In January 1992, Serbs from Vlasenica and eight

20 neighbouring municipalities declared the area to be the 'Birac Autonomous

21 Region' within the Federal Republic of Yugoslavia. Tensions increased in

22 the spring of 1992 with the referendum on the proposed independence of

23 Bosnia-Herzegovina." Correct?

24 THE ACCUSED: [Interpretation] Yes, Your Honour, that is correct.

25 JUDGE SCHOMBURG: "About 21 April 1992, Serb forces took over the

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13 English transcripts.













Page 179

1 town of Vlasenica and declared it to be a Serbian town JNA soldiers,

2 including soldiers purporting to be from the Novi Sad corps from Serbia,

3 paramilitary forces and local military soldiers participated in the

4 takeover. During the day, police vehicles drove around Vlasenica town and

5 issued an ultimatum over loudspeakers for Muslims to turn in their

6 weapons. The Muslim population complied with the ultimatum and did not

7 resist." Correct?

8 THE ACCUSED: [Interpretation] Correct, Your Honour.

9 JUDGE SCHOMBURG: "Once the Serbs took control of the

10 municipality, the Crisis Staff ( Krizni Stab) administered the town and

11 appointed Serbs to all official positions. Local Serb men were mobilised

12 and took over military responsibilities from the JNA forces. Among other

13 things, local Serb military forces guarded important facilities and later

14 were formed into companies and used to search surrounding woods for armed

15 Muslims."

16 THE ACCUSED: [Interpretation] That is correct, Your Honour.

17 JUDGE SCHOMBURG: "After the takeover, conditions for Muslims and

18 other non-Serbs in the municipality deteriorated. The Serb authorities

19 fired Muslims and other non-Serbs from their jobs and limited their

20 withdrawal of funds from banks. The Serb authorities did not permit the

21 Muslims and other non-Serbs to travel without special passes. Muslim men

22 were frequently arrested and brought to the police station for

23 interrogation. Beatings and murders sometimes accompanied the

24 interrogations." Correct?

25 THE ACCUSED: [Interpretation] Correct, Your Honour.

Page 180

1 JUDGE SCHOMBURG: "Many Muslims and other non-Serbs fled the

2 Vlasenica area, and beginning in May 1992 and continuing until September

3 1992, those Muslims and other non-Serbs who had remained were either

4 forcibly expelled or arrested. By September 1992, virtually no Muslims or

5 other non-Serbs remained in Vlasenica."

6 THE ACCUSED: [Interpretation] Correct, Your Honour.

7 JUDGE SCHOMBURG: "The Serb forces initially held the arrested

8 Muslims and other non-Serbs either at a local school or the local prison

9 in Vlasenica. In approximately late May or early June 1992, the Serb

10 forces established a detention camp at Susica, the main detention facility

11 in the Vlasenica area, and sent the arrested Muslims and the non-Serbs

12 there. Susica camp was run by the military and the local police militia.

13 The camp guards were generally soldiers from the local area."

14 THE ACCUSED: [Interpretation] Correct, Your Honour.

15 JUDGE SCHOMBURG: "Susica camp was located approximately one

16 kilometre from the town of Vlasenica, in a military facility that had

17 previously been used for storage of military equipment. Men, women, and

18 children were kept in the camp; however, the women and children generally

19 stayed for only short periods of time before being forcibly transferred to

20 nearby Muslim areas. Before being forcibly transferred, non-Serbs usually

21 had to sign a document stating that they were leaving the area voluntarily

22 and that they were giving up their possessions."

23 THE ACCUSED: [Interpretation] Correct, Your Honour.

24 JUDGE SCHOMBURG: "Susica camp consisted of two main buildings: A

25 warehouse or hangar ('the hangar'), 50 metres by 30 metres, which was used

Page 181

1 to house the detainees and a second smaller building which was used for

2 storage of uniforms and equipment. There was also a small house used by

3 the guards and commander of the camp to interrogate detainees when they

4 arrived. Between late May and October 1992, as many as 8.000 Muslim

5 civilians and other non-Serbs from Vlasenica and the surrounding villages

6 were detained in the hangar in Susica camp."

7 THE ACCUSED: [Interpretation] Correct, Your Honour.

8 JUDGE SCHOMBURG: "The number of detainees in the hangar at any

9 one time varied, but was generally between 300 and 500 detainees. The

10 building was severely overcrowded, detainees were not provided with

11 anything to sleep on, toilet facilities were limited, and there were no

12 showers. The food provided was sparse and often spoiled. The guards

13 brutally beat the detainees on a daily basis. Many detainees died from

14 the beatings by the guards."

15 THE ACCUSED: [Interpretation] Correct, Your Honour.

16 JUDGE SCHOMBURG: "Many of the detained women were subjected to

17 sexual assaults, including rape. Camp guards or other men who were

18 allowed to enter the camp frequently took women out of the hangar at

19 night. When the women returned, they were often in a traumatised state

20 and other detainees observed that the women were distraught."

21 THE ACCUSED: [Interpretation] Correct, Your Honour.

22 JUDGE SCHOMBURG: After this general description, let us now turn

23 to the core issue, your individual alleged criminal responsibility. It

24 reads in this third amended indictment:

25 "The Prosecution of this Tribunal against Dragan Nikolic, that the

Page 182

1 Prosecutor of the International Criminal Tribunal for the former

2 Yugoslavia, pursuant to her authority under Article 18 of the Statute of

3 the Tribunal, charges you, Dragan Nikolic, also known as Jenki, with

4 crimes against humanity, as set forth below:

5 "The accused Dragan Nikolic, born on 26 April 1957, is from the

6 town of Vlasenica in Bosnia-Herzegovina. Before the war, he worked at the

7 Alpro aluminum factory in Vlasenica. He lived with his family on Zarka

8 Vukovica Street in the Krusevik section of Vlasenica. From at least early

9 June 1992 until about 30 September 1992, Dragan Nikolic was a commander of

10 Susica detention camp in Vlasenica." Is this correct?

11 THE ACCUSED: [Interpretation] It's correct, Your Honour.

12 JUDGE SCHOMBURG: Then let us turn to paragraph 2, where we have

13 the general allegations under Article 7 of the Statute of the Tribunal.

14 The Trial Chamber has some problems with the mere repetition of Article

15 7(1) of the Statute. May I ask the Prosecution in this context: Do you

16 want to amend the indictment?

17 MR. YAPA: I'm thankful to Your Honours for raising this matter at

18 this stage. This is a matter that was given consideration, and I have

19 discussed this matter with my learned friend as well. And may I, with

20 Your Honours' permission, move to have the indictment amended by

21 substituting certain words to this paragraph and certain other paragraphs

22 in the indictment? It is not a substantial change as such. It's not in

23 substance, but it is, I should say, more refining the indictment. My

24 application is that paragraph 2 be read as follows:

25 "Dragan Nikolic is individually criminally responsible, pursuant

Page 183

1 to Article 7(1), for committing the crimes charged in counts 1, 2, and 4,

2 and for aiding and abetting the execution of the crimes charged in count 3

3 of this indictment." That is the amendment that I move for in respect of

4 paragraph 2.

5 In respect of count 1, where there is the penal paragraph,

6 paragraph 7, may be read: "Persecutions on political, racial, and

7 religious grounds, a crime against humanity, punishable under Article 5(h)

8 and Article 7(1) of the Statute of the Tribunal."

9 In respect of count 2, in paragraph 19, may be read: "Murder, a

10 crime against humanity, punishable under Article 5(a) and Article 7(1) of

11 the Statute of the Tribunal."

12 In respect of count 3, may it read, paragraph 35 --


14 MR. YAPA: 22. I'm sorry. "Rape, a crime against humanity,

15 punishable under Article 5(g) and Article 7(1) of the Statute of the

16 Tribunal."

17 In respect of count 4, that will be paragraph 35: "Torture, a

18 crime against humanity, punishable under Article 5(f) and Article 7(1) of

19 the Statute of the Tribunal."

20 Those are the amendments that I move for.

21 JUDGE SCHOMBURG: Thank you. May I hear the Defence on this

22 matter?

23 MR. MORRISON: If it please Your Honour, the Defence was of course

24 aware of the intended application to amend the indictment. It's an

25 amendment which simplifies the indictment and makes it clear exactly upon

Page 184

1 which basis the defendant is entering his pleas of guilty, and for that

2 reason not only do I not oppose the proposed amendment, but I endorse it.

3 JUDGE SCHOMBURG: Thank you. To make it absolutely clear, it is

4 not intended to change any factual or legal basis, just for purposes of

5 clarification, to delete those words which are not needed for the legal

6 assessment of the factual basis presented in this indictment.

7 [Trial Chamber confers]

8 JUDGE SCHOMBURG: After having conferred, the Bench is accepting

9 and confirming this amended indictment which forms now the basis for the

10 further proceedings.

11 You understood what was discussed, Mr. Nikolic?

12 THE ACCUSED: [Interpretation] Yes, Your Honour.

13 JUDGE SCHOMBURG: Then before turning to the counts as such, let

14 me please go to the single incidents mentioned in these charges.

15 [Trial Chamber confers]

16 JUDGE SCHOMBURG: Count 1, persecutions. "From at least early June

17 1992 until about 30 September 1992, Dragan Nikolic persecuted the Muslim

18 and non-Serb detainees at Susica camp on political, racial, and religious

19 grounds."

20 THE ACCUSED: [Interpretation] Yes, Your Honour.

21 JUDGE SCHOMBURG: "Dragan Nikolic persecuted Muslim and non-Serb

22 detainees at the Susica camp by subjecting them to murders, rapes, and

23 torture, as charged specifically in the indictment. In addition, Dragan

24 Nikolic persecuted Muslims and non-Serb detainees by participating in

25 sexual violence directed at women at the Susica camp as set forth in

Page 185

1 paragraphs 20 and 21 of the indictment." We'll come back to this later.

2 Is this correct?

3 THE ACCUSED: [Interpretation] It's correct, Your Honour.

4 JUDGE SCHOMBURG: "As part of the persecutions, Dragan Nikolic

5 detained Muslim and non-Serbs at the Susica camp and assisted in the

6 forcible transfer of those detained at the camp from the Vlasenica

7 municipality. At the end of June 1992, large numbers of the male

8 detainees were transferred from the camp to the larger Batkovic detention

9 camp near Bijeljina in north-eastern Bosnia and Herzegovina. Most of the

10 women and children detainees were transferred either to Kladanj or Cerska

11 in Bosnian Muslim controlled territory."

12 THE ACCUSED: [Interpretation] Correct, Your Honour.

13 JUDGE SCHOMBURG: "As part of the persecutions, Dragan Nikolic

14 subjected detainees to an atmosphere of terror, created by the murders,

15 beatings, sexual violence and other physical and mental abuse of detainees

16 and to inhumane living conditions by being deprived of adequate food,

17 water, medical care, sleeping, and toilet facilities. As a result,

18 detainees suffered severe psychological and physical trauma. Dragan

19 Nikolic participated in creating and maintaining this atmosphere of terror

20 and the inhumane conditions."

21 "By his participation in the acts or omissions described in

22 paragraphs 3 through 6, Dragan Nikolic is individually criminally

23 responsible for count 1: Persecutions on political, racial, and religious

24 grounds, a crime against humanity, punishable under Articles 5(h) and 7(1)

25 of the Statute of the Tribunal."

Page 186

1 What is your plea to this count 1?

2 THE ACCUSED: [Interpretation] Guilty, Your Honour.

3 JUDGE SCHOMBURG: May we please take it for the record that the

4 accused has pleaded guilty related to count 1 of the indictment.

5 Let us now turn to count 2, murder. "One evening about 13 June

6 1992 and about 24 June 1992, Dragan Nikolic and other guards at Susica

7 camp entered the hangar building and called out Durmo Handzic and Asim

8 Zildzic. After taking them outside the building, Dragan Nikolic and the

9 guards subjected Durmo Handzic and Asim Zildzic to severe physical abuse,

10 including punching, kicking, and beatings with weapons such as lengths of

11 wood lasting for at least 45 minutes, during which time the two men

12 repeatedly begged for the beating to stop."

13 THE ACCUSED: [Interpretation] Correct, Your Honour.

14 JUDGE SCHOMBURG: "When the beating concluded, both detainees were

15 brought back to the hangar. Asim Zildzic died shortly after returning.

16 The following morning, upon the order of Dragan Nikolic, two detainees

17 buried Asim Zildzic."

18 THE ACCUSED: [Interpretation] Correct, Your Honour.

19 JUDGE SCHOMBURG: "Later that morning, Dragan Nikolic entered the

20 hangar and approached Durmo Handzic. Although Handzic was in severe agony

21 from being beaten the night before, Dragan Nikolic demanded information

22 regarding Durmo Handzic's son. Durmo Handzic died shortly after this

23 encounter and was buried that day by other detainees."

24 THE ACCUSED: [Interpretation] Correct, Your Honour.

25 JUDGE SCHOMBURG: "During the night of 23 and 24 June 1992, Dragan

Page 187

1 Nikolic entered the hangar and ordered Muharem Kolarevic and Dzevad Saric

2 be taken outside. Sometime after that, other guards removed Ismet Musa

3 Zekic also from the hangar. For approximately 30 minutes after the men

4 were taken from the hangar, detainees inside heard cries of pain and then

5 gunshots that came from a location close to the hangar."

6 THE ACCUSED: [Interpretation] Yes, Your Honour.

7 JUDGE SCHOMBURG: "After the gunshots were heard, a guard called

8 two detainees from the hangar and ordered them to dispose of the bodies of

9 Muharem Kolarevic and Dzevad Saric behind the hangar. Dragan Nikolic

10 ordered the two detainees to wash away the blood on the ground where the

11 deceased had been beaten."

12 THE ACCUSED: [Interpretation] Correct, Your Honour.

13 JUDGE SCHOMBURG: "After attempting to wash away the blood, the

14 two detainees waited outside the hangar. As Dragan Nikolic sat inside the

15 nearby guardhouse, the two men watched the same guard who called them out

16 of the hangar shoot and kill Ismet Zekic."

17 THE ACCUSED: [Interpretation] Correct, Your Honour.

18 JUDGE SCHOMBURG: "Shortly after Ismet Zekic was killed, Dragan

19 Nikolic and the guard who had shot Zekic entered the hangar with some

20 local police. The police pointed at Rasim Ferhatbegovic and asked if he

21 was the one who was running away. The guard who had shot Ismet Zekic

22 said 'yes.' Rasim Ferhatbegovic was then taken outside, and shortly

23 thereafter the other prisoners heard one shot."

24 THE ACCUSED: [Interpretation] Correct, Your Honour.

25 JUDGE SCHOMBURG: "Early the next morning, Dragan Nikolic entered

Page 188

1 the hangar and again called out the two detainees who had disposed of the

2 bodies the day before. They went to the area of the camp that was being

3 used as a toilet and found the body of Muharem Kolarevic slumped over a

4 fence, caught in wire. The guard who had shot Ismet Zekic the day before

5 then shot Kolarevic again. The two prisoners then took the body of

6 Muharem Kolarevic to where they had left the bodies the previous evening

7 and there they saw the body of Rasim Ferhatbegovic with a bullet hole in

8 the centre of his forehead."

9 THE ACCUSED: [Interpretation] Correct, Your Honour.

10 JUDGE SCHOMBURG: "On or about 6 July 1992, Dragan Nikolic took

11 Ismet Dedic out of the hangar at Susica camp and closed the door behind

12 them. Detainees inside the hall then heard Ismet Dedic scream. A few

13 minutes later, Dragan Nikolic directed two detainees to drag Ismet Dedic

14 inside the hangar, where the other detainees could see that Ismet Dedic's

15 body was covered in blood. His body was barely recognisable and he

16 appeared to have suffered serious injuries. Ismet Dedic died shortly

17 thereafter. His body was placed in a plastic bag and removed by other

18 detainees."

19 THE ACCUSED: [Interpretation] Correct, Your Honour.

20 JUDGE SCHOMBURG: "Mevludin Hatunic, his wife and daughter were

21 detained in Susica camp in early July 1992. Between about 3 July and 7

22 July 1992, while detained in the camp, Mevludin Hatunic offered his house

23 to a Serb in exchange for moving his family out of the area. Hatunic was

24 then permitted to leave the camp to arrange the transfer of the house.

25 Upon his return, Dragan Nikolic accused Hatunic of having told the Serb to

Page 189

1 whom he had given his house that Hatunic would 'wait for his opportunity

2 to get even.' That evening, because he had allegedly made such a

3 statement, Dragan Nikolic beat Mevludin Hatunic. The next morning, Dragan

4 Nikolic beat Mevludin Hatunic again, until Mevludin Hatunic lost

5 consciousness. Later that evening, Dragan Nikolic returned and, finding

6 that Mevludin Hatunic had regained consciousness, beat him a third time. A

7 short time later Mevludin Hatunic died as a result of the beatings. His

8 body was placed in a plastic bag and was removed from the hangar by other

9 detainees."

10 THE ACCUSED: [Interpretation] Correct, Your Honour.

11 JUDGE SCHOMBURG: "From about the second week of July 1992, over a

12 seven-day period, Dragan Nikolic beat Galib Music, a 60-year-old detainee

13 by, among other things, kicking him and beating him with a metal pipe.

14 During the beatings, Dragan Nikolic accused Galib Music of asking a Muslim

15 organisation to come to expel the Serbs from Vlasenica. Each time Dragan

16 Nikolic beat Galib Music, Music lost consciousness, and, after

17 approximately seven days, Galib Music died."

18 THE ACCUSED: [Interpretation] Correct, Your Honour.

19 JUDGE SCHOMBURG: "By his participation in the acts and omissions

20 described in paragraphs 8 through 18, in relation to Durmo Handzic, Asim

21 Zildzic, Rasim Ferhatbegovic, Muharem Kolarevic, Dzevad Saric, Ismet

22 Zekic, Ismet Dedic, Mevludin Hatunic, and Galib Music, Dragan Nikolic is

23 individually criminally responsible for: Count 2, murder, a crime against

24 humanity, punishable under Articles 5(a) and 7(1) of the Statute of the

25 Tribunal."

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Page 191

1 What is your plea?

2 THE ACCUSED: [Interpretation] Your Honour, I'm guilty.

3 JUDGE SCHOMBURG: For the record, the accused has pleaded guilty

4 in relation to count 2 and all the details, factual details, underlying

5 this count.

6 Count 3, sexual violence: "From early June until about 15

7 September 1992, many female detainees at Susica camp were subjected to

8 sexual assaults, including rapes and degrading physical and verbal abuse.

9 Dragan Nikolic personally removed and otherwise facilitated the removal of

10 female detainees from the hangar, which he knew was for purposes of rapes

11 and other sexually abusive conduct. The sexual assaults were committed by

12 camp guards, special forces, local soldiers, and other men."

13 THE ACCUSED: [Interpretation] Correct, Your Honour.

14 JUDGE SCHOMBURG: "Female detainees were sexually assaulted at

15 various locations, such as the guardhouse, the houses surrounding the

16 camp, at the Panorama Hotel, a military headquarters, and at locations

17 where such women were taken to perform forced labour. Dragan Nikolic

18 allowed female detainees, including girls and elderly women, to be

19 verbally subjected to humiliating sexual threats in the presence of other

20 detainees in the hangar. Dragan Nikolic facilitated the removal of female

21 detainees by allowing guards, soldiers, and other males to have access to

22 these women on a repetitive basis and by otherwise encouraging the

23 sexually abusive conduct."

24 THE ACCUSED: [Interpretation] Correct, Your Honour.

25 JUDGE SCHOMBURG: "By his aiding and abetting in the conduct

Page 192

1 described in paragraphs 20 and 21, in relation to female detainees in

2 Susica camp, Dragan Nikolic is individually criminally responsible for:

3 Count 3: Rape, a crime against humanity, punishable under Article 5(g),

4 7(1) of the Statute of the Tribunal."

5 THE ACCUSED: [Interpretation] I plead guilty, Your Honour.

6 JUDGE SCHOMBURG: For the record, the accused has also pleaded

7 guilty in relation to count 3.

8 Count 4, torture. I apologise if I'm mispronouncing the one or

9 other name. I'm not acquainted with and my sincere apologies if I should

10 do so, especially to relatives of victims.

11 "Fikret 'Cice' Arnaut, from about 1 June to about 18 July 1992,

12 Dragan Nikolic beat Fikret Arnaut by kicking him, stomping on him, and

13 punching him with metal knuckles on his fists. The beatings took place

14 both inside and outside the hangar. Several of the beatings took place in

15 a corner of the hangar known as the 'punishment' corner."

16 THE ACCUSED: [Interpretation] Correct, Your Honour.

17 JUDGE SCHOMBURG: "On one occasion, Dragan Nikolic came into the

18 hangar and told Fikret Arnaut to kneel on the floor, put his hands behind

19 his head, and tilt his head back. Dragan Nikolic then put a bayonet in

20 his mouth and asked him about his brother, who Dragan Nikolic claimed had

21 joined a group of Ustasha. Later that same day, two men came to the

22 hangar and took Fikret Arnaut outside. When Fikret Arnaut returned, he

23 had been beaten severely and was bleeding from his mouth. Shortly

24 thereafter, Dragan Nikolic came to Fikret Arnaut in the hangar and said

25 words to the effect: 'What? They did not beat you enough. If it had

Page 193

1 been me, you would not be able to walk. They are not as well trained to

2 beat people as I am.'" Is this correct?

3 THE ACCUSED: [Interpretation] It's correct, Your Honour.

4 JUDGE SCHOMBURG: "On one occasion, Dragan Nikolic took Fikret

5 Arnaut outside the hangar and beat Fikret Arnaut with metal knuckles.

6 Fikret Arnaut fell to the ground and Dragan Nikolic kicked his ribs and

7 back around the kidney area. During this beating, Dragan Nikolic accused

8 Fikret Arnaut of organising the Muslims."

9 THE ACCUSED: [Interpretation] Correct, Your Honour.

10 JUDGE SCHOMBURG: "On a subsequent occasion, Dragan Nikolic

11 approached Fikret Arnaut in the hangar and said words to the effect: 'I

12 can't believe how an animal like this can't die. He must have two

13 hearts.' Dragan Nikolic then beat Fikret Arnaut again and stomped on his

14 chest."

15 THE ACCUSED: [Interpretation] Correct, Your Honour.

16 JUDGE SCHOMBURG: "On 11 June 1992, Sead Ambeskovic was arrested

17 in Vlasenica. Police first interrogated him and then took him to Susica

18 camp. Once in the camp, Dragan Nikolic and others beat Sead Ambeskovic,

19 using axe handles, iron bars, and rifle butts."

20 THE ACCUSED: [Interpretation] Correct, Your Honour.

21 JUDGE SCHOMBURG: "In the morning of 14 June 1992, guards took

22 Sead Ambeskovic and Hajrudin Osmanovic from the hangar. The two men were

23 ordered to kneel with their hands behind their heads. Dragan Nikolic

24 asked them where their weapons were and to identify others who had

25 weapons. During the interrogation, Dragan Nikolic and others then beat

Page 194

1 them with iron bars, wooden bats and rifle butts for approximately one and

2 one-half hours. As a result of this beating, the back of Sead

3 Ambeskovic's head was cut, four teeth on the left side of his mouth were

4 knocked out, and three ribs were broken."

5 THE ACCUSED: [Interpretation] Correct, Your Honour.

6 JUDGE SCHOMBURG: "On or about 16 June 1992, Dragan Nikolic again

7 called Sead Ambeskovic and Hajrudin Osmanovic out of the hangar. Once

8 outside, Dragan Nikolic demanded to know if they had weapons and who else

9 had weapons. Dragan Nikolic and two other guards immediately began

10 beating them with bats for 10 to 15 minutes."

11 THE ACCUSED: [Interpretation] Correct, Your Honour.

12 JUDGE SCHOMBURG: "On 3 July 1992, Hajrudin Osmanovic was taken

13 from Susica camp to perform forced labour. He has never been seen since."

14 THE ACCUSED: [Interpretation] Correct, Your Honour.

15 JUDGE SCHOMBURG: "From about 13 June to about 3 July 1992,

16 Suad Mahmutovic suffered frequent, sometimes daily beatings by Dragan

17 Nikolic at Susica camp. Dragan Nikolic beat Suad Mahmutovic with iron

18 bars, rifle butts, and rubber tubing with lead inside. During one

19 beating, several of Suad Mahmutovic's ribs were broken. On separate

20 occasion, Dragan Nikolic kicked Suad Mahmutovic in the face with his boot,

21 which caused a cut that left permanent scars."

22 THE ACCUSED: [Interpretation] Correct, Your Honour.

23 JUDGE SCHOMBURG: "On one occasion, Dragan Nikolic placed cocked

24 pistol inside Suad Mahmutovic's mouth. Dragan Nikolic tried to force Suad

25 Mahmutovic to admit that his neighbour had a weapon, but Suad Mahmutovic

Page 195

1 refused. Dragan Nikolic then pulled the trigger but the gun was not

2 loaded."

3 THE ACCUSED: [Interpretation] Correct, Your Honour.

4 JUDGE SCHOMBURG: "Redzo Caksic was arrested on 2 June 1992 and

5 taken to Susica camp. Upon arrival, Dragan Nikolic and other guards

6 searched him. He was then taken to the hangar, where, with other

7 detainees, he was ordered to line up and lean against the wall with his

8 hands behind his back. Dragan Nikolic then hit Redzo Cakisic, and other

9 detainees, with his rifle butt and kicked them with his boots."

10 THE ACCUSED: [Interpretation] Correct, Your Honour.

11 JUDGE SCHOMBURG: "Approximately ten days later, Dragan Nikolic

12 called Redzo Cakisic from the hangar during the night. Two men were

13 waiting outside with Dragan Nikolic. Nikolic said to them words to the

14 effect: 'Here, I brought you something for dinner.' The two men who were

15 not camp guards hit Redzo Cakisic in the back with rifle butts and kicked

16 him in the stomach and sides. During this beating, Dragan Nikolic was

17 approximately five metres away in the guardhouse. The beating continued

18 for about 20 minutes."

19 THE ACCUSED: [Interpretation] Correct, Your Honour.

20 JUDGE SCHOMBURG: "By his participation in the acts and omissions

21 described in the paragraphs 23 through 34, in relation to

22 Fikret 'Cice' Arnaut, Sead Ambeskovic, Hajrudin Osmanovic, Suad

23 Mahmutovic, and Redzo Cakisic, Dragan Nikolic is individually criminally

24 responsible for count 4, torture, a crime against humanity, punishable

25 under Article 5(f), 7(1) of the Statute of the Tribunal."

Page 196

1 THE ACCUSED: [Interpretation] Guilty, Your Honour.

2 JUDGE SCHOMBURG: You may be seated.

3 Madam Registrar, may we take to the record that the accused

4 pleaded guilty to all the counts included in the amended indictment. As a

5 consequence of this, this Trial Chamber finds the accused, Dragan Nikolic,

6 guilty of the offences contained in counts 1 through 4 of the indictment

7 just read out before.

8 May I ask the parties: Is it correct that you want to replace the

9 attachment A of your agreement against the newly amended indictment?

10 MR. YAPA: Yes, Your Honour. In due course we'll be filing an

11 amended indictment. For the purpose of the record, it will be filed by

12 the Prosecution.

13 JUDGE SCHOMBURG: And this would then form attachment A to the

14 plea agreement?

15 MR. YAPA: Yes, Your Honour.

16 JUDGE SCHOMBURG: May I hear the Defence on this.

17 MR. MORRISON: Your Honour, in the light of that undertaking, I

18 have no observations.

19 JUDGE SCHOMBURG: You would accept that this replacement takes

20 place.

21 The question is now the sentencing. Of course, the sentencing has

22 to be well prepared. I took it that the parties would need approximately

23 two months for -- in preparation of the sentencing hearing. Can the

24 parties agree that we already today fix the scheduling for this sentencing

25 hearing for the week -- for the first week of November, that is, 3 through

Page 197

1 7 November, knowing that in all likelihood we will not need all the days,

2 but in order to be on the safe side, we should schedule these days. Would

3 these days be suitable for you?

4 MR. YAPA: I'm in agreement, Your Honour.


6 MR. MORRISON: Your Honour, yes.

7 JUDGE SCHOMBURG: May we then ask the parties to prepare their

8 respective sentencing briefs no later than Monday, 20 October 2003. Is

9 this convenient? I can see nodding from both sides.

10 May we then turn to another purpose of the Status Conference and

11 ask you, Mr. Nikolic: Do you have any complaints about the situation in

12 the Detention Unit? Do you have any health problems you would draw our

13 attention to?

14 THE ACCUSED: [Interpretation] Your Honour, I have no complaints.

15 The conditions are normal, as they have been so far. I have no health

16 problems. As to the rest, I have no complaints with respect to my living

17 in the Detention Unit, as far as the food is concerned, the medical

18 treatment, and all the rest of it. As far as I'm concerned is everything

19 is satisfactory.

20 JUDGE SCHOMBURG: Thank you.

21 May I ask the parties: Are there any other issues to be addressed

22 today? Prosecution?

23 MR. YAPA: We do not have any issues at the moment.

24 JUDGE SCHOMBURG: Thank you.

25 The Defence?

Page 198

1 MR. MORRISON: Your Honour, nor I.

2 JUDGE SCHOMBURG: Thank you. The trial then stays adjourned until

3 the 3rd of November, 9.00.

4 --- Whereupon the Status Conference adjourned at

5 4.14 p.m.