Tribunal Criminal Tribunal for the Former Yugoslavia

Page 40

1 Monday, 5 December 2005

2 [Appeals Proceeding]

3 [Open session]

4 [The appellant entered court]

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

6 JUDGE POCAR: So good morning to everybody.

7 Mr. Registrar, would you please call the case.

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

9 IT-02-60/1-A, Momir Nikolic versus the Prosecutor.

10 JUDGE POCAR: Thank you, Mr. Registrar.

11 We would like to make sure that the interpreters are here and that

12 they can hear me. I see the appellant, Mr. Nikolic, is in the courtroom.

13 Mr. Nikolic, can you hear me?

14 THE APPELLANT: [No interpretation].

15 JUDGE POCAR: Thank you, Mr. Nikolic.

16 Defence and Prosecution can certainly hear me. Very well. I will

17 now ask for the appearances of the parties. Can we first have the

18 appearances for the Defence.

19 MR. TANSEY: [Microphone not activated].

20 THE INTERPRETER: Microphone.

21 MR. TANSEY: Your Honour, my name is Rock Tansey, and my

22 co-counsel is John Livingston.

23 JUDGE POCAR: I thank you.

24 Now for the Prosecution.

25 MR. KREMER: My name is Peter Kremer, Mr. President, Marie-Ursula

Page 41

1 Kind is also with me. I believe that Peter McCloskey, subject to his

2 airplane connections, may also be joining us this morning. And Lourdes

3 Galicia is our case manager; she's also with us. Thank you.

4 JUDGE POCAR: Thank you.

5 As the registrar announced, the case on our agenda is Prosecutor

6 versus Momir Nikolic. This case is before the Appeals Chamber following

7 an appeal launched by the Defence against the sentencing judgement

8 rendered by Trial Chamber I on 2 December, 2003. This morning we will

9 hear the appeal of the Defence, the response of the Prosecution, and if it

10 so wishes, the reply of the Defence. I shall first provide some

11 relevant background to this case.

12 At the plea hearing held on 7 March 2003, Mr. Nikolic pleaded

13 guilty to persecutions, a crime against humanity, punishable under

14 Article 3(H) of the Statute of the International Tribunal under Count 5 on

15 the indictment. This count arises out of events that took place in

16 Eastern Bosnia and Herzegovina as a result of the fall of the enclave of

17 Srebrenica, which was shelled and attacked between 6 and 11 July 1995.

18 Count 5 of the indictment provides that "the crime of persecutions

19 was perpetrated, executed, carried out by and through the following

20 means: (a) the murder of thousands of Bosnian Muslim civilians,

21 including men, women, and elderly persons; (b) the cruel treatment of

22 Bosnian Muslim civilians, including severe beatings at Potocari and in

23 detention facilities in Bratunac and Zvornik; (c) the terrorising of

24 Bosnian Muslim civilians in Srebrenica and Potocari; (d) the destruction

25 of personal property and the effects belonging to the Muslims; and (e),

Page 42

1 the forcible transfer of the Bosnian Muslims from the Serbia enclave."

2 Based on a plea agreement, the Trial Chamber entered a conviction

3 against Mr. Nikolic for Count 5 on the indictment. In the plea agreement,

4 the parties agreed that the Prosecution would recommend to the Trial

5 Chamber a sentence within the range of 15 to 20 years, and the Defence

6 will recommend a sentence of 10 years. The Trial Chamber found that they

7 could not accept the sentences as recommended by either the Defence or the

8 Prosecution. It rather sentenced Mr. Nikolic to 27 years' imprisonment.

9 As stated, this morning we will hear arguments from both parties,

10 but before giving the floor to counsel I will summarise briefly the

11 grounds of appeal launched by the Defence has stated in its written

12 submissions.

13 The first ground of appeal is that the Trial Chamber erred by

14 venturing outside the facts of the guilty plea when assessing the gravity

15 of the offence. The second and 12th ground of appeal is that the Trial

16 Chamber erred when it imposed a sentence of 27 years' imprisonment on

17 Momir Nikolic, since the sentence is inconsistent with the sentences

18 imposed in other cases before the International Tribunal.

19 In his third and fourth ground of appeal, Mr. Nikolic argues that

20 the Trial Chamber double-counted both his role and the vulnerability of

21 the victims as it considered each fact applies that these, in the gravity

22 of the offence, and any is a separate aggravating circumstance. In his

23 fifth ground of appeal, Mr. Nikolic argues that the Trial Chamber erred

24 when it relied upon a mistranslation of the lead Defence counsel's closing

25 argument in weighing the appellant's sentence.

Page 43

1 In the sixth ground of appeal, the appellant asserts that the

2 Trial Chamber failed to give sufficient credit to the guilty plea, as a

3 mitigating circumstance.

4 Seventh, the appellant claims that the Trial Chamber erred in

5 failing to recognise his full cooperation with the Prosecution.

6 In its eighth ground of appeal, the appellant alleges that the

7 Trial Chamber erred by failing to give him sufficient credit for his

8 expression of remorse.

9 In the ninth, tenth, and eleventh ground of appeal, finally, the

10 appellant submits that he was entitled to greater credit for the

11 mitigating circumstances of his cooperation with the Prosecution prior to

12 his arrest, his good behaviour in the Detention Unit, and his personal

13 circumstances that he was given by the Trial Chamber.

14 I would now like to remind the parties about the standard of

15 review applicable to sentencing appeals. Under Article 25 of the Statute,

16 an appeal is not a trial de novo. The role of the Appeals Chamber is

17 limited to correcting errors of law and invalidating the decision and

18 errors of fact that have occasioned the miscarriage of justice. Trial

19 Chambers are vested with broad discretion to tailor the penalties to fit

20 the individual circumstances of the accused and the gravity of the crime.

21 In general, the Appeals Chamber will not revise the sentence unless the

22 Trial Chamber has committed a discernible error in exercising its

23 discretion.

24 Before we proceed, I would also ask the parties to be precise and

25 clear in their submissions and not simply recount what has been set out in

Page 44

1 their written briefs. In accordance with the Scheduling Order issued by

2 the Appeals Chamber on 19th October, 2005, the appellant shall have up to

3 30 minutes to make his oral submission. The Prosecution shall then have

4 up to 30 minutes in response to the appellant's submission. And then the

5 appellant shall have up to ten minutes to reply to the Prosecution's

6 response. At the end, Mr. Nikolic has ten minutes to personally address

7 the Appeals Chamber, if he so wishes.

8 So now we will proceed by hearing first from counsel for

9 Mr. Nikolic.

10 Mr. Tansey, please, you have the floor.

11 MR. TANSEY: May it please Your Honour.

12 It is submitted that the sentence of 27 years was excessive and

13 that there was a discernible error in the Trial Chamber's use of its

14 discretion and/or in the law in sentencing him. We acknowledge at once

15 that the said offence of persecution is a very serious offence, and we

16 wish to make it clear that we do not in any way underestimate its gravity.

17 The appellant relies on all the matters set out at the pleadings, and

18 therefore I shall not repeat them at this stage.

19 As I have said, we submit that the sentence of 27 was excessive

20 and should be reduced, and we note with significance that the Prosecution

21 have consistently maintained, both at trial and subsequent to trial and at

22 this appeal, that the appropriate range of sentence in his case was 15 to

23 20 years. And by inference, though of course it is not their decision,

24 but by inference the Prosecution are clearly suggesting to the Court that

25 the sentence of 27 years in this case on this appellant was manifestly

Page 45

1 excessive. And we agree and adopt what the Prosecution have said.

2 On the question of disparity, it is clear from the pleadings that

3 the Prosecution likewise feel that the disparity in sentence imposed on

4 this appellant and other defendants in similarly connected cases merited a

5 review. And so, for example, when dealing with the case of a

6 Mr. Obrenovic, the Prosecution made it clear that there was a substantial

7 similarity between the cases of Mr. Obrenovic and Mr. Nikolic, and yet

8 there is a massive difference in sentence between the two. Mr. Obrenovic

9 was sentenced to 17 years' imprisonment, and Mr. Nikolic to 27, a

10 difference of ten years.

11 We submit that the Prosecution, in their pleadings at paragraph 42

12 of the Prosecution response, said this: "The Prosecution acknowledge that

13 there is a disparity between Nikolic's sentence of 27 years and

14 Mr. Obrenovic's of 17 years," in their words, "that is hard to explain."

15 We submit that is a matter of great significance and importance which we

16 would ask Your Honours to take into consideration. The Crown -- the

17 Prosecution say it is hard to explain.

18 We submit, likewise, that on behalf of this appellant we find it

19 on his behalf hard to explain when one compares the two and the other

20 cases.

21 Your Honour, before I deal with particular points, may I just say

22 this: He was, Mr. Nikolic, a teacher, a man with no previous criminal

23 record, a man of good standing in the community, married with two

24 children, and he is now aged 50. He was the Bosnian Serb to publicly

25 admit his guilt in his part in the terrible events which occurred after

Page 46

1 the fall of Srebrenica. The first of all. There was a public denial in

2 that republic and in Serbia that these horrific events ever took place,

3 that this man had the courage to get up and say: It did take place and

4 I'm guilty of the matters to which, in fact, he has pleaded. He has

5 expressed remorse in meetings before the Chamber and with the Prosecution.

6 And as the Prosecution say, and they have had extensive dealing with him,

7 he has cooperated substantially and extensively with them. And their

8 degree of his cooperation is clearly set out in that.

9 Your Honour, in the Prosecution's supplemental submission before

10 he was sentenced they said: "Mr. Nikolic had cooperated fully with the

11 Prosecution and had provided valuable information regarding the events in

12 and around Srebrenica and even about events in East Bosnia which were

13 beyond the scope of the amended plea agreement on matters relevant to his

14 trial."

15 And in their response for these appeal proceedings, the

16 Prosecution reiterate again - reiterate - the extent of his cooperation.

17 In their words: "He provided substantial cooperation at trial," and they

18 still maintain that he fully cooperated. And that his testimony in their

19 view, with their background knowledge of so much material, of evidences

20 and witnesses and of documentary material, it is their view that his

21 testimony on key issues and events is credible and reliable. And that by

22 virtue of him pleading, he saved the witnesses from testifying about

23 painful and traumatic events. He has contributed to the establishment of

24 the truth and the process of reconciliation. He has shown remorse and he

25 has saved the Tribunal resources by avoiding a lengthy trial.

Page 47

1 And as far as he is concerned, unlike the other persons involved

2 in the Srebrenica cases, he was a reserve officer. He was a captain. He,

3 in fact, had been a teacher until he was, as a citizen, asked and did and

4 joined the army. He was not a full-time officer, unlike the other persons

5 this -- about whom the Srebrenica cases are concerned. And his rank was

6 considerably lower than those in associated cases of Mr. Krstic,

7 Mr. Obrenovic, and Mr. Blagojevic. He was not a commanding officer. His

8 position in the military was relatively low, and he was not one of the

9 architects, the creators of the criminal joint enterprise. And he never

10 personally passed any order or made any plan nor instigated nor murdered

11 nor participated actively in the murder of any of the victims. And the

12 price that he and his family have had to pay has been enormous. His

13 family have had to leave Bosnia and to be relocated abroad. He,

14 Mr. Nikolic, he is being called by others a traitor to his country, and

15 naturally that weighs very heavily upon him.

16 May I deal then firstly with the -- our submission that the Trial

17 Chamber failed to give sufficient weight or credit to his plea of guilty.

18 We submit that a very substantial reduction in sentence is appropriate to

19 reflect his guilty plea. It was highly significant, as set out in

20 paragraph 142 of the judgement of the Court. It is the first time a Serb

21 has acknowledged criminal responsibility regarding the Srebrenica events."

22 And quoting from a witness from Srebrenica, his admission punched

23 a big hole in the Bosnian wall of denial. And his plea was a significant

24 contribution to the truth and to the advancement of reconciliation. And

25 his account as an insider is of great historic significance. And his plea

Page 48

1 was entered before trial, not long before trial we acknowledge, so no

2 witnesses nor victims were required to give evidence, and thereby

3 resources saved. And the recognition of the crimes committed provides

4 some form of closure.

5 We submit that his plea of guilty was an act of great courage, and

6 this was confirmed in an open letter by the mayor of Srebrenica, which is

7 set out in paragraph 147. "Momir Nikolic is the first officer of the

8 Serbian army who found the strength and courage to confess the crimes and

9 his participation in them."

10 The Trial Chamber at paragraph 145 says that his plea was

11 significant and accepted can contribute to fulfilling the Tribunal's

12 mandate of restoring peace and promoting reconciliation. They said it was

13 an important factor in mitigation of sentence and was a -- and his guilty

14 plea mitigating because it spared witnesses, as I have said.

15 However, it appears from reading the sentencing judgement that

16 there were two -- or only two real or expressed or implied criticisms

17 regarding the weight to be attached to the plea of guilty. The first

18 implicit criticism is that the plea of guilty only came after the plea

19 agreement had been entered; and secondly, that the saving of resources

20 arising from the plea of guilty cannot be given undue consideration or

21 importance.

22 Dealing with the first criticism, that his plea came only after

23 concluding a plea agreement. We submit that such a criticism is unfair,

24 and we adopt the Prosecution response to the revised appellant's brief at

25 paragraphs 152 and 153, because it is clear that the Prosecution accepted

Page 49

1 that the timing of his guilty plea should not have worked to his

2 detriment. It states at 152: "The Prosecution notes at the outset that

3 it was not the Prosecution's position that the timing of the guilty plea

4 should work to the detriment of the appellant."

5 In fact, the Prosecution position was at the timing of the plea,

6 though approximately one year after pre-trial disclosure, was important as

7 it came before the start of the trial, and therefore the Prosecution was

8 not required to call several witnesses regarding events in Potocari. And

9 they repeated that at paragraph 153 in their response, and it says, and I

10 quote: "It does not appear that sufficient weight was given to the timing

11 of the plea."

12 We agree with the Prosecution observation and we adopt it.

13 We do not dissent from the proposition that an early guilty plea

14 may have a particular mitigating relevance. However, in considering this

15 specific mattered, the Chamber will be well aware that the indictment in

16 this case was a complicated document, a number of matters as well as

17 counts were included, some of which or one of which he admitted, the

18 others he did not. The documentation in this case was substantial. It

19 had to be carefully considered and analysed before the appellant could

20 enter an informed and considered plea. And in those circumstances, it was

21 reasonable for him to seek, through his lawyers, an agreement to an

22 acceptable guilty plea with the Prosecution. Such matters take time. And

23 we submit that in addition that the Trial Chamber may have failed to

24 appreciate sufficiently the difficulty of the appellant, as a Serb, found

25 in talking about the crimes committed at Srebrenica, given the prevailing

Page 50

1 denial of responsibility at the time for those events in Serbia and

2 Republika Srpska.

3 Accordingly, considering those factors, we submit that his plea

4 should be considered to be a timely plea for which he should be entitled

5 to full credit.

6 The second criticism was that the saving of Tribunal resources

7 arising from the appellant's plea of guilty carried little weight as a

8 mitigating factor, as paragraph 151 of the sentencing judgement. And at

9 paragraph 67 it said: "The saving of resources cannot be given undue

10 consideration or importance." Well, we agree that the saving of resources

11 should not be given undue consideration, but we submit it should be given

12 proper and due and fair consideration. And it is significant that the

13 Prosecution, likewise, consider, quoting from their response at

14 paragraph 12: "The saving of resources is a relevant and valid factor."

15 And that at paragraph 19 they agree that he's still entitled to credit for

16 the aspect of the timing of the guilty plea relating to the saving of

17 Tribunal resources.

18 And we submit that in practical terms the Trial Chamber's approach

19 on this point was mistaken. Cases before this Tribunal are, in general,

20 it seems, very time-consuming, expensive, and publicly funded. And at a

21 practical level, therefore, being able to dispose of cases by a guilty

22 plea, where appropriate - and I underline where appropriate - is

23 important. And there is a need to encourage defendants to plead guilty

24 where appropriate. And this, we submit, can only be achieved by means of

25 a significant sentencing discount for a plea of guilty.

Page 51

1 Your Honour, that is our first submission. The second

2 submission --

3 [B/C/S on English channel].

4 MR. TANSEY: Sorry, I didn't understand the --

5 The second submission is that the Trial Chamber gave him

6 insufficient credit for his cooperation with the Prosecution, and Rule 101

7 of the Tribunal specifies that: "Substantial cooperation with the

8 Prosecution before or after conviction is a mitigating circumstance." And

9 it's, as I've already said, the Prosecution has made it clear pre-sentence

10 and post-sentence, that Mr. Nikolic has cooperated fully with the

11 Prosecution.

12 And as they said, as set out at paragraph 153: "He had agreed and

13 testified at the Srebrenica trials, he has agreed to cooperate in relation

14 to the entire wartime period." And their words, which I use: "He has

15 worked hard to answer truthfully and completely all the questions posed to

16 him."

17 And it said this: "Apart from his initial false comments in

18 relation to the Kravica warehouse killings, which he subsequently

19 explained, the Prosecution is unaware of any other false statements made

20 by Mr. Nikolic. And the Prosecution submits that his testimony is

21 credible because it is supported by documentary as well as witness

22 testimony in relation to the VRS offensive in Srebrenica and his role in

23 the coordination of the separation, detention, execution, burial, and

24 re-burial of Muslim prisoners.

25 He was helpful and cooperative. He met the Prosecution. He

Page 52

1 provided, as I've already said, a lot of information regarding events in

2 and around Srebrenica. He provided information regarding events in

3 Eastern Bosnia. He testified in the Blagojevic and Jokic trial, and he's

4 provided testimony before the Appeals Chamber in Krstic. He has agreed to

5 testify in future proceedings before the Tribunal and provide information

6 in relation to other matters. And the Prosecution position is that

7 Mr. Nikolic fully cooperated and that his testimony on key issues and

8 events is reliable.

9 The Trial Chamber has expressed criticism in its comments, its

10 observations, about Mr. Nikolic. It referred to: (a) numerous instances

11 where the testimony of Mr. Nikolic was evasive," that's the words, "and

12 his willingness to cooperate does not translate into being fully

13 forthcoming in relation to all of the events; (b) in tab B to the amended

14 plea agreement, he admitted he had made false statements, in particular

15 that he ordered executions in Sandici and Kravica, when in fact he had not

16 done so; and (c), criticism, if he was sincere about cooperating, he would

17 have been more open in all aspects of his testimony and had been more

18 forthright in his responses before and to the Trial Chamber; (d) his

19 testimony was not as detailed as it could have been in certain areas, and

20 this is an indicator of the character and a certain lack of candor on the

21 part of Mr. Nikolic.

22 So let us look at these criticisms Nikolic, which we submit are

23 invalid and wrong. Firstly, numerous instances where his evidence was

24 evasive. What is astonishing is that there is only one example cited, and

25 that is in the footnote 252 at page 50. We submit it is wrong in

Page 53

1 principle to refer to numerous instances without at least putting in the

2 details, either in the main body of the judgement or in the footnotes.

3 And because of this significant omission by the Trial Chamber, it is now

4 not possible to make any assessment as to whether the Trial Chamber was

5 correct in their assessment. And we respectfully remind Your Honours that

6 the obligations under, for example, Article 6 of the European Convention

7 of Human Rights, that the court should indicate with sufficient clarity

8 the grounds on which they base their decision. And in these

9 circumstances, we submit, there is no evidence to justify the Trial

10 Chamber's assertion that there were numerous instances of evasive evidence

11 by the appellant. And what is again important, to stress, the Prosecution

12 do not suggest that there were numerous instances of evasive evidence by

13 the appellant. As stated in this Trial Chamber's sentencing judgement the

14 Prosecution view was: Apart from his initial false comments in relation

15 to Kravica warehouse, the Prosecution is unaware of any other false

16 evidence.

17 We submit the lack of detail in the judgement of such alleged

18 evasiveness is deeply disturbing. If the Chamber was going to make such

19 observations, especially as the Prosecution view was significantly opposed

20 to the view of the Chamber, it was elementary, fundamental, and essential

21 that the Trial Chamber should have listed in detail the alleged

22 evasiveness. The failure to list details of evasiveness may well be, as

23 we suggest, because there is no evidence of numerous instances where

24 Mr. Nikolic was evasive, and it's -- we submit it appears that the Trial

25 Chamber has misled itself in these observations.

Page 54

1 The Trial Chamber did refer to the example of, as set out at

2 paragraph 156, and it refers to tab B to the amended plea agreement in

3 which Mr. Nikolic had previously made false statements, namely that he

4 ordered executions at Sandici and Kravica, where he did not. And that was

5 wrong and he acknowledges that, or acknowledged it. But what the

6 judgement fails to state is that it was Mr. Nikolic himself, who shortly

7 having made the statements told the Prosecution -- it was not the

8 Prosecution finding out and in that way he then changed. He went back to

9 them and said that he was sorry, but he in fact had made false statements.

10 And he acknowledged his wrongdoing in making such a statement. He brought

11 it to the attention of the Prosecution and not the other way around. And

12 so in their supplemental submission at paragraph 7 of the 15th of October,

13 2003, the Prosecutor said: "Other than that one time, Mr. Nikolic has

14 always had a helpful and positive attitude in previous dealings with the

15 Prosecution."

16 And after that, he then, as the Prosecution said: "His

17 cooperation continued to be substantial." He gave evidence in two cases,

18 identified mass graves, stated his willingness to testify in future

19 trials.

20 The third criticism made by the Trial Chamber was this, at

21 paragraph 156 of their judgement: "If he was sincere about cooperating,

22 he would have been more open in all aspects of his evidence, had have been

23 more forthright in his response before and to the Trial Chamber." Rely on

24 the same observations as before. In this case, the Chamber does not even

25 cite one example. It is unclear what the Chamber had in mind, and

Page 55

1 accordingly it is unclear how these matters could possibly fairly result

2 in any adverse inferences against the appellant.

3 The fourth criticism made by the Chamber: "His testimony was not

4 as detailed as it could have been in certain areas. This is an indicator

5 of his character and certain lack of candor on the part of Mr. Nikolic."

6 As above, the Chamber cited not one example, and accordingly, we submit,

7 it is unclear how these matters could possibly result in adverse

8 inferences against Mr. Nikolic.

9 The Prosecution accept that the Trial Chamber erred, we say, in

10 law by failing to identify the basis of its findings and made no reference

11 to transcripts or other witnesses. And it says: "As there were no

12 examples provided, it is difficult to assess the basis for this reason for

13 diminishing the value of cooperation."

14 And therefore, we submit, that in assessing the agree of

15 cooperation of the appellant, this Appeals Chamber should exclude entirely

16 from its consideration of sentence those matters about which the Trial

17 Chamber provided no evidential material or any important or relevant

18 material. In those circumstances, we submit there is minimal, hardly any

19 evidence of lack of cooperation by Mr. Nikolic, and therefore, he should

20 be entitled to maximum credit for his substantial cooperation. And that

21 he certainly did not receive from the Trial Chamber.

22 The next matter, remorse. We submit the Trial Chamber erred in

23 failing to give him substantial credit for his remorse and his apology to

24 the victims and their families and the Bosniak people, as set out in his

25 statement at paragraph 158(F) of the sentencing judgement. We suggest

Page 56

1 that statement shows real empathy with the victims and an understanding of

2 the true horror and tragedy of the events of Srebrenica. The Prosecution

3 certainly supported the appellant's submission that he had demonstrated

4 remorse by pleading guilty and had also shown remorse in all their

5 dealings with him.

6 Why did the Trial Chamber, therefore, not give him substantial

7 weight? And there appear to be three reasons, and I shall deal with each

8 in turn.

9 One, and this is set out at paragraph 160 of the sentencing

10 judgement: The Trial Chamber seems to have held against him his

11 explanation of his reasons why he pleaded guilty. Now, we suggest that

12 that is unfair, because the appellant had the honesty to admit that his

13 reasons were an inevitable mixture of self-interest as well as genuine

14 remorse. He expressed his self-interest very clearly, as set out at

15 paragraph 53 of the revised appellant's brief on appeal, page 19. And he

16 said this: "I came to realise that the best solution for me personally

17 would be to enter into an agreement of this kind, to confess my guilt, to

18 testify about the crime. And in that way, quite simply, to save myself,

19 that on the one side; and on the other to help the Court to arrive at the

20 truth, as far as that is possible."

21 That is the clearest expression of self-interest. But in our

22 submission, he was extremely honest about that, which, we submit, is a

23 point in his favour. But he also made it very clear in evidence that he

24 was genuinely remorseful for what had happened.

25 In answer to Judge Argibay at page 1678 to 9 of the evidence as

Page 57

1 set out in paragraph 58 of the revised appellant's brief he said

2 this: "One of the strongest reasons why I have done all this are my pangs

3 of conscience, a pain I have been carrying inside me all this time. And,

4 believe me, I owe an apology to all the victims, all the children, all the

5 mothers who have lost their sons, and I especially want to apologise to my

6 pupils," he having, as I said, been a teacher. That, we submit, is really

7 genuine remorse. And since the war ended, he had as chief of department

8 of the ministry of refugees and displaced persons issued a large number of

9 decisions for the adaptation and repair of Muslim houses. And as he said,

10 "I did not pay any attention to whether the house was a Serb or a Muslim

11 house to speed up the return of refugees in Bratunac." That's

12 paragraph 59 of the revised appellant's brief.

13 And he made it clear to the Chamber that he was not an extremist

14 and that is confirmed by witnesses who gave evidence before the Tribunal

15 and that in 1992, he said, he had opposed the extremists, and in

16 consequence he had been attacked and hospitalised and had to leave

17 Bratunac. So in 1995, he was naturally concerned something similar might

18 happen to him again.

19 And at the sentencing hearing, long-term friends and colleagues,

20 including a number of non-Serbs, testified that he had friends from

21 different ethnic groups and that he did not discriminate. And a non-Serb

22 student testified that he socialised with Bosniak colleagues and was

23 non-discriminatory towards non-Serb students. We submit there was clear

24 evidence there of genuine remorse for which he should have received

25 greater credit.

Page 58

1 The second reason at paragraph 160 of the Trial Chamber's

2 judgement -- it said it recalled "his related reason of providing the

3 Prosecution with false information during the plea negotiations." And we

4 submit it's harsh to hold that against him because he was the one who very

5 shortly afterwards went to the Prosecution and told them that he hadn't

6 been honest, and he then apologised. And from that moment onwards,

7 there's no suggestion that he ever told any untruths. And so, we submit

8 that this should not have been held against of him.

9 The third reason given was, as the Court said at note 257, page 51

10 of the judgement: "The Trial Chamber further recalled that his guilty

11 plea came after one year of full disclosure by the Prosecution's case

12 against him."

13 We submit, and I've given the reasons earlier, that this point

14 should not be held against him.

15 And we adopt the Prosecution observation at paragraph 152 of its

16 response. "The Prosecution notes at the outset that it was not the

17 Prosecution position that the timing of the guilty plea should work to the

18 detriment of the appellant."

19 I accept -- I will not repeat the proposition any further.

20 JUDGE POCAR: Mr. Tansey, may I draw your attention to the clock.

21 Your 30 minutes have gone. If you have a couple of minutes more, I can

22 give them to you.

23 MR. TANSEY: If I may -- try very swiftly to deal with the

24 question of sentence disparity, and the submission I have made 27 years

25 excessive, when compared with cases reasonably similar backgrounds and

Page 59

1 when it imposes a sentence outside the range of 15 to 20 years recommended

2 by the Prosecution.

3 May I make it clear, I accept the Court makes the decision and the

4 Prosecution makes the recommendation. But when the Prosecution make such

5 a recommendation, it is one which, in our submission, should command

6 considerable respect.

7 Your Honour, may I just do the comparison of Mr. Obrenovic and

8 Mr. Nikolic. Mr. Obrenovic was sentenced to the same offence of

9 persecution and pleaded guilty, like this appellant, and cooperated with

10 the Prosecution. He was a career soldier. He was a deputy commander. He

11 was a Chief of Staff of the Zvornik Brigade, and this brigade was

12 responsible for the municipality in which the vast majority of the

13 executions took place. The acting commander, he was, of the Zvornik

14 Brigade during the two days when many executions took place. And he was

15 responsible, Mr. Obrenovic, for failing to prevent his subordinates from

16 participating in the detention, murder, and burial of Bosnian men.

17 Compare his position and compare Mr. Nikolic. Now, I acknowledge

18 no two cases are exactly the same; there are different facts. But

19 Mr. Nikolic was a reserve officer. He was a captain, not a captain first

20 class, as the Tribunal wrongly described him. He had no command

21 responsibility. His position in the military was relatively low, though I

22 do not suggest unimportant. He had no subordinates. At all times, he was

23 obeying and implementing orders. He personally gave no orders for any

24 person to be killed and he did not kill anyone himself. We submit

25 Mr. Obrenovic was sentenced to 17 years' imprisonment. That was within

Page 60

1 the range recommended by the Prosecution. Mr. Nikolic got ten years more,

2 though being a much less important figure and with no command

3 responsibility.

4 Your Honour, I see my time is up, and I have to sit down.

5 JUDGE POCAR: Thank you, Mr. Tansey.

6 Well, if there are no questions from my colleagues, we can move on

7 to the response of the Prosecution -- oh, sorry. I'm sorry, Judge Meron.

8 JUDGE MERON: Just one question.

9 Mr. Tansey, assuming that the Trial Chamber made the errors which

10 you allege, can you point to any passage in the sentencing judgement

11 showing that these errors materially affected the appellant's sentence?

12 MR. TANSEY: Your Honour, our submission is that what affected the

13 sentence is not, in itself, manifestly clear on the papers themselves.

14 However, where one has errors of such substance in relation to these

15 important matters, for example, the plea of guilty not giving full

16 recognition of that to his substantial cooperation, again not accepting

17 it, and also not acknowledging his remorse, we suggest that the obvious

18 inferences by not accounting for that properly, it inevitably meant to his

19 sentence was going to be higher than it should have been.

20 Your Honour, that is basically how we deal, I hope properly, with

21 Your Honour's observation.

22 JUDGE MERON: Thank you.

23 JUDGE POCAR: Thank you, Mr. Tansey.

24 I give now the floor to the Prosecution for their response.

25 MR. KREMER: Thank you, Mr. President, Your Honours.

Page 61

1 The submission by Mr. Tansey on behalf of Mr. Nikolic identifies

2 many of the issues that had been canvassed in the briefs, and he

3 articulates very well the concerns that are shared by both parties in

4 respect of the lack of detail provided by the Trial Chamber in justifying

5 the sentence of 27 years and in rejecting the joint submission by the

6 parties for a sentence in the range of 15 to 20 years. The position of

7 the Prosecution is that there has been a discernible error in the exercise

8 of discretion in the imposition of a 27-year sentence on Mr. Momir

9 Nikolic. And in respect of the submissions by Mr. Tansey on Mr. Nikolic's

10 behalf, there is nothing he has said which I take issue with.

11 I plan, in my submissions, just to deal with two errors which I

12 believe are fundamental to the explanation and illustration of how the

13 sentence is in error. And the two points are, one, that the sentences are

14 inconsistent as between perpetrators convicted in connection with the

15 Srebrenica massacre; and secondly, there is disparity of sentence between

16 Momir Nikolic and Obrenovic, who both pled guilty as members of a JCE

17 committing a persecution involving the events of Srebrenica. Both

18 substantially cooperated with the Prosecution and testified against other

19 perpetrators, both at the Blagojevic and Jokic trial and in the Krstic

20 appeal hearing before this Chamber. And there is a disparity of sentence

21 of ten years notwithstanding that there is, in the Prosecution's

22 submission, not justification found in the Trial Chamber to justify the

23 disparity.

24 There were other errors that are commented on in the written

25 materials. One which may have affected the view of the Trial Chamber in

Page 62

1 assessing sentence is the interpretation error that was alluded to by

2 Mr. Tansey in the beginning. The use of the word "only," in

3 differentiating the Blaskic facts from the Srebrenica facts. I won't deal

4 with it. It's adequately dealt with in the materials but is worth

5 considering, particularly since the Court -- the Trial Chamber was

6 specifically disturbed by the use of the phrase, and I believe all parties

7 are of agreement that that was a translation or interpretation error that

8 was very unfortunate and may have had an influence on the Trial Chamber's

9 assessment of not only the facts, the admissions, but also the sentence.

10 First of all, inconsistent sentence. Why is the sentence of Momir

11 Nikolic inconsistent? And I think it is inconsistent if one examines the

12 history of the Srebrenica sentencing, and it may well be that Momir

13 Nikolic was caught in an unfortunate period of time in the sequence of

14 sentencing. At the time of the sentencing decision, the only Srebrenica

15 sentencing decision was that of Radislav Krstic, a decision on August

16 the 2nd, 2001. General Major Krstic was the commander of the Drina Corps

17 of the Serbian forces. Following orders of General Mladic and the VRS

18 Main Staff, Krstic committed the Drina Corps personnel and resources,

19 mainly from Bratunac and the Zvornik Brigades to the Srebrenica operation,

20 which resulted in the forcible confinement -- I'm sorry, forcible transfer

21 of 25.000 Bosnian Muslims and the execution of over 7.000 Bosnian Muslim

22 men.

23 The evidence at the Trial Chamber and accepted by the Krstic Trial

24 Chamber was that General Krstic supervised the participation of his

25 subordinates in carrying out executions, and after a lengthy trial,

Page 63

1 General Krstic was convicted of genocide as a participant in the JCE and

2 was sentenced to 46 years' imprisonment.

3 On May 7th, 2003, Momir Nikolic pled guilty to the crime of

4 persecution as a crime against humanity, as a member of a JCE, and that

5 plea was accepted by the Trial Chamber based on the facts set out in the

6 sentencing judgement. Momir Nikolic was a captain in the Bratunac

7 Brigade, responsible for security and intelligence. Momir Nikolic carried

8 out staff functions assigned to him, which included involvement in

9 organising the separation and transfer of the 25.000 Muslim women and

10 children and the segregation of over 7.000 men, knowing of their planned

11 execution by elements of the Bratunac and Zvornik Brigades. Srebrenica

12 was a crime of major proportions requiring substantial personnel and

13 resources to carry out. Momir Nikolic's staff role was important and

14 necessary to the carrying out of this crime.

15 But Momir Nikolic was the first Serb to admit to the events of

16 Srebrenica. His guilty plea was combined with substantial cooperation

17 with the Prosecution. He testified at the trial of his superior officer,

18 Colonel Dragan Blagojevic, commander of the Bratunac Brigade, and Major

19 Jokic, chief of engineering of the Zvornik Brigade.

20 Nikolic's sentence of 27 years was imposed on December 2nd, 2003.

21 He was the second Srebrenica participant sentenced. And as regard to the

22 benchmark for General Krstic, it may have appeared appropriate. The

23 Prosecution had recommended 15 to 20 years in light of his plea and his

24 cooperation, but events would show, subsequent sentencing decisions would

25 show, that the decision of the Trial Chamber in respect of Momir Nikolic

Page 64

1 was inconsistent with other sentences. The first evidence of that was the

2 sentencing of Colonel Obrenovic. He pled guilty to persecution, as did

3 Momir Nikolic, as a crime against humanity as a member of the joint

4 criminal enterprise. It was accepted by the same Trial Chamber that

5 sentenced Momir Nikolic on May 21st, 2003, some two and a half weeks

6 later. As acting commander and deputy commander of the Zvornik Brigade,

7 Obrenovic accepted his knowledge of and role in the murder of thousands of

8 Bosnian Muslim civilians, and this was significant. And if you look at

9 the Obrenovic sentencing decision at, in particular, paragraphs 30 to 34,

10 it is clear that Obrenovic is deeply involved in the events that took

11 place.

12 I'm just going to read from paragraph 33: "Dragan Obrenovic

13 states that he was 'aware that the killing operation was occurring when he

14 was back in the Zvornik Brigade headquarters on the morning of the 15th of

15 July, 1995.' Dragan Jokic had told him about problems with the burials of

16 prisoners executed and the guarding of prisoners still to be executed."

17 Most of the prisoners that were executed in the Srebrenica

18 operation were executed in the area of responsibility of the Zvornik

19 Brigade. Substantial Zvornik Brigade personnel and resources were needed

20 to carry out the executions and the burials. Obrenovic pled guilty at the

21 same time before the trial as did Momir Nikolic. Obrenovic testified at

22 the trial of his fellow officer, Colonel Dragan Blagojevic, commander of

23 the Bratunac Brigade, and his subordinate, Major Jokic, chief of

24 engineering of the Zvornik Brigade. Colonel Obrenovic was sentenced to 17

25 years on December the 10th, 2003, a mere eight days after the sentencing

Page 65

1 of Momir Nikolic. There is a disparity in sentence of ten years, yet

2 there is not a word of explanation.

3 In the Obrenovic sentencing to explain why there is a difference

4 of ten years, when by all accounts the responsibility for which both men

5 pled guilty is identical. They both pled guilty to the crime of

6 persecution, to participating as a member of the joint criminal

7 enterprise, and both cooperated fully with the Prosecution and, in the

8 Prosecution's submission, ought to have been sentenced in the same range

9 of sentence. And if Colonel Obrenovic, who was a command officer,

10 received a sentence of 17 years, then it is clear that there is a

11 disparate sentence for Mr. Nikolic when he is sentenced to 27 years.

12 The situation gets a little more complicated as a result of the

13 decision by this Chamber in the Krstic appeal. Major General Krstic

14 appealed from his conviction in sentence for genocide. His conviction for

15 genocide was upheld, not as a participant, but as an aider and abettor, on

16 April 19th, 2004, and his sentence was accordingly reduced to 35 years by

17 the Appeals Chamber. So the adjustment of the Krstic sentence clearly in

18 the comparison of the three sentences where Major General Krstic is in

19 charge of the Drina Corps, in charge of the two brigades that are carrying

20 out the Srebrenica massacre; Colonel Obrenovic is in charge of the Zvornik

21 region. He -- his relative sentence compared to the Krstic sentence has

22 to be taken into account in assessing whether or not the sentence of Momir

23 Nikolic under all of the circumstances is consistent and fair.

24 The crimes of Srebrenica remain the same for all of these

25 perpetrators, whether Krstic, Obrenovic, Blagojevic, Jokic, or Nikolic,

Page 66

1 the reality is that the JNA forces were involved in the forcible transfer

2 of the 25.000 Muslim civilians and the execution of over 7.000 Muslim men.

3 More recently we had the Trial Chamber decision, the same Trial

4 Chamber that sentenced Momir Nikolic and the same Trial Chamber that

5 sentenced Colonel Obrenovic, in the decision of Blagojevic and Jokic on

6 January 17th, 2005. After a lengthy trial, not a guilty plea, no remorse

7 for Srebrenica, a highly, hotly defended trial, Colonel Blagojevic, who

8 was Momir Nikolic's superior, was convicted of aiding and abetting

9 genocide, persecutions, murder, and other inhumane acts for the forced

10 transfers of the 25.000 Muslim civilians, and a sentence not to more than

11 27 years but a sentence to 18 years by the same Trial Chamber.

12 So it is clear, I would submit, on the basis of the Blagojevic

13 sentence alone, that no credit was given to Momir Nikolic for his

14 cooperation and no credit was given for his guilty plea.

15 Now, I have to remind this Chamber that the Prosecution has

16 appealed the conviction and sentence of Mr. Blagojevic, but for the time

17 being that is a sentence that can be used as a benchmark for determining

18 the issue before you today.

19 The sentencing decisions subsequent to Momir Nikolic receiving his

20 sentence of 27 years on December 2nd, 2003, raise valid issues of

21 inconsistency and disparity of sentences, given the same crime base and

22 the comparability of roles and relationships of the individual

23 perpetrators. General Major Krstic's sentence was reduced from 46 years

24 to 35 years. He was in a senior command responsibility for the Drina

25 Corps and its units when they committed the Srebrenica genocide. The

Page 67

1 27-year sentence of Momir Nikolic is disproportionate, having a regard to

2 Momir Nikolic's staff role and responsibility in the Bratunac Brigade,

3 when combined with his guilty plea and substantial cooperation.

4 Lack of parity in sentencing is best illustrated in the comparison

5 of sentences to Colonel Obrenovic and Colonel Blagojevic, 17 and 18 years

6 respectively. Both are colonels, both are commanders of the two brigades

7 in whose area of responsibility this crime or the Srebrenica crimes took

8 place. Blagojevic commanded the Bratunac Brigade, which was responsible

9 for the logistics of the forcible transfer of the 25.000 Muslim women and

10 children and the guarding and separation of the prisoners for transfer to

11 execution sites, both within Bratunac and the Zvornik Brigade areas of

12 responsibility.

13 Obrenovic and Blagojevic had command responsibility during these

14 events. Momir Nikolic was a captain with staff responsibility. Obrenovic

15 and Momir Nikolic pled guilty and gave substantial cooperation.

16 Blagojevic was convicted after a trial, yet his sentence was nine years

17 lower than Momir Nikolic. It doesn't make any sense, I would submit, that

18 that relationship in sentencing, having regard to the nature of the crime,

19 the command responsibility, and the role of Blagojevic relative to the

20 role of Momir Nikolic. I'm not here to argue the Blagojevic sentence

21 appeal, but in terms of fairness to Momir Nikolic there has to be

22 consistency.

23 A guilty plea and substantial cooperation must be given some

24 credit, given the subsequent sentencing practice by the same Trial Chamber

25 in Obrenovic and Blagojevic and the sentence variance in Krstic by the

Page 68

1 Appeals Chamber, the sentence of Momir Nikolic is both inconsistent and

2 disparate to all the other Srebrenica sentences and warrants appellant

3 review and reduction.

4 Subject to any questions you may have, those are my submissions.

5 And Mr. McCloskey, I believe, would like to say a few words in respect to

6 the issue of cooperation.

7 JUDGE POCAR: Judge Shahabuddeen.

8 JUDGE SHAHABUDDEEN: [Microphone not activated].

9 Yes, I was asking you, before my colleague perfected for me the

10 technology of these instruments, to help me to repair a possible defect in

11 my impression. You referred to there being a joint submission that this

12 sentence should be within the range of 15 to 20 years. Was it the case

13 that your colleagues on the other side proposed a ten-year sentence?

14 MR. KREMER: Yes. I misspoke. There was 15- to 20-year

15 recommendation by the Prosecution, and the side office of -- Mr. Nikolic's

16 office asked for ten. I apologise for that confusion.

17 JUDGE SHAHABUDDEEN: Thank you very much.

18 JUDGE POCAR: Yes, Mr. McCloskey.

19 MR. McCLOSKEY: Thank you, Mr. President, Your Honours. It's a

20 privilege to be before the Appeals Chamber. It's not often I get that

21 opportunity.

22 As you know, I was the senior trial attorney involved in the -- in

23 this case and the principal person involved in the plea agreement with

24 Mr. Nikolic. I've been assigned to the Srebrenica case for some nine

25 years now, and as I watched Mr. Nikolic testify, I watched Mr. Obrenovic

Page 69

1 testify, I'm at a loss to tell you why the sentence disparity. I have

2 tremendous respect for that Trial Chamber. I know those Judges listened

3 very carefully for well over a year and thought very carefully about

4 everything they did, but as what's been pointed out here, you see they're

5 not backing up their issues and their problems with Mr. Nikolic. And

6 again, I'm at a loss to tell you and explain to you why, though, let me

7 offer you one possible explanation. I led both Colonel Obrenovic and

8 Captain Nikolic in evidence. Colonel Obrenovic was a career JNA officer,

9 a very bright man that answered to questions briefly, succinctly, and

10 clearly, without any regard to how it may have made him look or appear.

11 Mr. Nikolic tended to answer questions perhaps more like lawyers

12 would. He -- he was wordier, he went on and on, but I had gotten to know

13 Mr. Nikolic over the year, and that's the way he answered questions. And

14 I listened to him for at least two days and longer under a scathing

15 cross-examination. And he did well. He did well to answer the questions

16 truthfully, and I could point to very few areas where I could identify him

17 not being truthful. That's why we stand here today in support of him.

18 Colonel Obrenovic took responsibility for authorising the death of

19 3.000 men and boys. He was the commander at the time. He took

20 responsibility for that. Captain Nikolic took responsibility for

21 intending to take part in the joint criminal enterprise, to round those

22 people up and separate them and have them killed. The difference is

23 massive, and I perhaps did not do the job I should have done in convincing

24 the Court in the difference between when a commander takes authority of

25 such a situation and when a staff officer does, but they're very

Page 70

1 different. Obrenovic did much more than just prevent this execution. If

2 you look at the record and you look at what he pled to, he took

3 responsibility for it. The difference between these two is massive.

4 Now I'll end briefly by emphasising a point that has already been

5 made. Captain Nikolic was the first VRS officer to stand up in front of

6 the world and admit Srebrenica happened and admit his responsibility in it

7 and take responsibility for it. Obrenovic came afterward, and I can tell

8 you Obrenovic was influenced by the fact that Mr. Nikolic got up and did

9 this. And when you look at the record, especially the Muslims,

10 Mr. Nikolic has taken responsibility at this time in history for this

11 institution and for himself, helped the reconciliation of many, many

12 Muslims that I know personally suffered as a result of this. People came

13 up to me constantly, repeatedly, saying that now they could go home, now

14 they have this incredible relief. There's an article of one such Muslim

15 that was written in the New York Times that's part of the record. Read

16 that. You'll get the feeling for how important Mr. Nikolic's plea was to

17 this institution, to this case, to Bosnia, and to reconciliation. And I

18 say that in all candour and honesty, and I'll look into each one of your

19 eyes, there is no question that what he did was very important for this

20 case and the people of Bosnia.

21 Thank you.

22 JUDGE POCAR: Thank you, Mr. McCloskey.

23 This does conclude the response of the Prosecution?

24 MR. KREMER: Yes, Mr. President.

25 JUDGE POCAR: Okay. Thank you, Mr. Kremer.

Page 71

1 Now may I turn to the Defence for their reply. You have ten

2 minutes, Mr. Tansey.

3 MR. TANSEY: May it please Your Honour. May I say, I'm very

4 grateful to my learned friends for what they have said, and I have nothing

5 to add to those observations.

6 One matter which I'd hoped to address you upon before was not

7 merely the question of disparity, but the question of the gravity of the

8 offence and aggravating features. May I say, this doesn't arise in reply

9 to what my learned friends have said because they haven't specifically

10 dealt with it. It was the question -- and if I may with Your Honours'

11 leave actually just deal with this point, because we're concerned or have

12 been concerned that there is a question of a certain form of

13 double-counting, that what in fact has happened is that, Your Honour, if I

14 say at paragraph 139 of the sentencing judgement it says: "The Trial

15 Chamber finds that the following aggravating circumstances have been

16 proven beyond reasonable doubt: The position of authority and role of

17 Momir Nikolic and the vulnerability of the victims."

18 And our submission is this: That they should not have been

19 considered to have been aggravating factors because they had already been

20 considered to be part of the gravity of the offence.

21 And if I may just deal very briefly with this point. At

22 paragraph 103 of the sentencing judgement the Trial Chamber says as

23 follows: "In assessing the gravity of the offence, the Trial Chamber

24 considers it appropriate to first examine the crime of persecutions in

25 this case, the underlying criminal conduct, and the specific role played

Page 72

1 by Momir Nikolic in its commission."

2 So clearly, role is being considered as part of the gravity of the

3 offence.

4 "And also take into account the status of the victims of the

5 criminal activity."

6 Now, we submit that if one looks carefully at particular aspects

7 or particular paragraphs of the judgement, that the factors that the

8 Tribunal has deemed to be aggravating have, in our submission, been

9 incorporated, in fact, in the gravity of the offence.

10 Your Honour, if I might cite particular examples for Your Honours'

11 assistance. I referred to paragraph 103. Paragraph 104 the Tribunal

12 says: "When assessing the gravity of the offence, the Trial Chamber must

13 also consider the role that he played in the commission of the crime."

14 And further down at paragraph 114: "The Chamber will examine

15 Mr. Nikolic's formal functions and actual duties."

16 And this is all part of the assessment of the gravity of the

17 offence.

18 In addition, in its findings at paragraph 121 the Trial Chamber

19 says: "In making its determination regarding the gravity and nature of

20 the offence has reviewed the evidence before it and has considered the

21 purpose in which Mr. Nikolic was a participant and his role."

22 And it sets out the very aspects at paragraph 123 how he -- his

23 coordinating role, separate, transportation, et cetera.

24 And, Your Honour, in our submission -- having considered these

25 particular matters it then says at paragraph 124, and these are all

Page 73

1 matters part of its analysis of the gravity of the offence it says this.

2 It says: "It finds a sentence in the range of 20 years to life to be

3 appropriate based solely on the gravity of the crime committed by Momir

4 Nikolic, his role and participation in the commission of that crime."

5 And we submit, therefore, that when one actually looks at the

6 particular paragraphs in question to which I have referred, that in fact

7 the factors which the Tribunal deem to be aggravating factors, in fact,

8 were included in its own analysis of what constitutes the gravity of the

9 offence. And therefore, our concern is that in the case there may well

10 have been double-counting in the case, and if that is the case, then

11 clearly it would have wrongly added to the sentence imposed upon him.

12 Your Honour, may I just deal with the final matter then, and it

13 relates, in fact, to the matter at paragraph 122. It is a matter that has

14 concerned the appellant personally very much as well. In its judgement at

15 paragraph 122, the trial -- it reads: "The Trial Chamber has examined the

16 crime of persecutions for which Momir Nikolic has admitted responsibility.

17 The Trial Chamber was shocked to hear the Nikolic Defence state that only

18 7.000 men, only Muslim men, as opposed to all non-Serbs, from only one

19 municipality were murdered. The comparison is not helpful to assess the

20 gravity of the offence and the use of the term 'only' in relation to the

21 number of persons murdered is shameful."

22 Had counsel said that, it would have been shameful, but he didn't

23 say that. It's an unfortunate mistranslation that what he said was,

24 effectively, "around 7.000 people." Now, the consequence was and the

25 rebuttal was this was never taken up with counsel at the time, as one

Page 74

1 would have expected, are you saying only, do you mean that? We submit

2 that in fact the fact that the Tribunal made this reference and repeated

3 shocked and shameful may well -- the Tribunal may well have thought that

4 these thoughts emanated, came from Mr. Nikolic, part of the team, which in

5 fact was the last thing that they ever had said. And it may be, and we

6 understand that Judges are deemed to exclude such matters from their mind,

7 that it may be that this misinterpretation created a sense of hostility

8 and anger towards the Nikolic Defence, and it may well have affected their

9 judgement as well in determining the sentence imposed upon him.

10 [Defence counsel confer]

11 MR. TANSEY: Your Honour, unless there's any other matter in which

12 I can assist you upon.

13 JUDGE POCAR: Well, I thank you, Mr. Tansey, for your reply. So

14 this concludes the consideration of the submission of the parties.

15 Now, may I turn to Mr. Nikolic.

16 Mr. Nikolic, if you so wish, you have up to ten minutes to -- for

17 a personal statement to address personally the Court. You have the floor,

18 Mr. Nikolic.

19 THE APPELLANT: [Interpretation] Thank you, Your Honours.

20 Your Honours, I would, with this address, like to express my

21 sincere remorse and regret about the awful crimes that took place after

22 the fall of Srebrenica. I would like to express particular respect

23 towards the victims because of the terrible crimes against their families,

24 their brothers, sisters, friends, who have to now live without these

25 people and whose suffering will never end.

Page 75

1 I would like to convince this Honourable Court that I did not have

2 any enemies among the Muslims. Quite the contrary. I had many friends

3 with whom I spent my whole life. Amongst -- many of my students were

4 Muslims. I was their professor in high school, and they respected me and

5 loved me, just as I respected and loved them.

6 I am particularly sad and feel special pain because I am aware

7 that some of my students were killed in this crime, and I was not able to

8 help them. It is even more awful to know, and it is even more painful to

9 know, that you, in some way, contributed with your own acts to this crime.

10 I would like, Your Honours, to tell you that I never militarily

11 participated in this war. I myself was expelled in 1992, and I was a

12 refugee in Serbia. I was expelled because I disagreed with the SDS

13 authorities. I was physically abused, and I ended up in the hospital.

14 After therapy, which lasted for six months, I was forcefully

15 mobilised by the authorities in Serbia, and I was force -- transferred by

16 force to -- back to Srebrenica. Aware of the gravity of the crime that

17 occurred after the fall of Srebrenica, I decided to admit my guilt, to

18 accept my guilt, and to be adequately punished. I would like to inform

19 this Honourable Court that I am a captain in the reserve, that I never

20 attended any meetings or actively participated in any meetings at which

21 decisions were taken about the fate of the people in Srebrenica. I also

22 never actively participated in any other meetings held after the fall of

23 Srebrenica when decisions were made about the fate of the people of

24 Srebrenica. My role in any of the meetings was to create conditions for

25 the participants to be able to discuss matters quietly and in peace. My

Page 76

1 professional tasks were what I was doing in this respect, and they do not

2 constitute any crimes. Everything that I did was done on the basic of --

3 on the basis of superior orders, and I did -- I never did anything of my

4 own accord.

5 Your Honours, I am not accused of command responsibility, but for

6 individual acts. As part of my individual responsibility or guilt, I

7 never personally abused anybody, physically or verbally, I never killed

8 anyone. I did not attend or see any particular killing. I never ordered

9 anyone to abuse or kill anyone, and I never incited anyone to commit any

10 crime.

11 Besides the facts that I have just stated, it is also true that I

12 am a captain in the reserve in a light infantry brigade, and it is not

13 authorised to process the perpetrators of criminal act. Based on the

14 above, it can be concluded that I did not have any authority or power and

15 could not have been in the centre of events because I never in any way

16 decided about anything, I did not have subordinate units which would be in

17 a position to carry out any such orders.

18 In all of the situations in question, I conveyed the orders of

19 superiors, and I assisted in the implementation of orders. In my case,

20 the decisions referred to the forcible transfer from Potocari to the free

21 Muslim territory.

22 Your Honours, I do not wish in any way to minimise my

23 responsibility, but I would like you to properly assess my role and my

24 responsibility as a reserve officer who was not in command, who did not

25 plan, did not organise or order anything, did not kill or abuse anyone,

Page 77

1 and was not an authorised person who could prosecute the perpetrators of

2 criminal acts.

3 And finally, Your Honours, I would like to inform you that I am

4 prepared, in coming trials which relate to Srebrenica, to testify at the

5 invitation of the Court about the events, according to my best

6 recollection.

7 Thank you, Your Honours.

8 JUDGE POCAR: Thank you, Mr. Nikolic. You may sit down.

9 This concludes today's hearing. I would like to express my

10 appreciation to the parties for their submissions and a very good conduct

11 of the proceedings, and a particular thanks to the interpreters for their

12 excellent work.

13 The hearing stands adjourned.

14 --- Whereupon the Appeals Hearing

15 adjourned at 10.32 a.m.