1 Monday, 16 December 2002

2 [Sentencing Hearing]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 9.33 a.m.

6 JUDGE MAY: Would the Registrar call the case.

7 THE REGISTRAR: Good morning, Your Honours. This is Case Number

8 IT-00-39 and 40/1-S, the Prosecutor versus Biljana Plavsic.

9 JUDGE MAY: The appearances.

10 MS. DEL PONTE: Your Honours, I appear as Prosecutor, along with

11 my senior trial attorneys, Mark Harmon and Alan Tieger, who together are

12 responsible for the detailed aspect of the conduct of this case. Carmela

13 Javier as case manager. Thank you.

14 MR. PAVICH: Good morning, Your Honours. Robert Pavich and Eugene

15 O'Sullivan on behalf of Biljana Plavsic.

16 JUDGE MAY: Madam Prosecutor, before we begin, let me say this:

17 We have received a joint request for an order under Rule 70 in relation to

18 one witness. These are exceptional circumstances. And it being a joint

19 application, we propose to grant it. In doing so, we should make it plain

20 that we are not setting a precedent at all, because as I say, the

21 circumstances of this case and these proceedings are exceptional.

22 Yes.

23 MS. DEL PONTE: Thank you, Mr. President. Before I proceed with

24 my introductory remarks, there is a short procedural point that might best

25 be dealt with at the outset. Today's hearing is in a public session, but

1 a key document, the factual basis for the plea of guilty, was filed

2 confidentially by the parties on 30 September. There is now no reason for

3 that document to remain under seal, and it would facilitate today's

4 proceeding, which I understand are to be broadcast live in the former

5 Yugoslavia, if a document were now made public. And therefore ask the

6 Chamber to order that the status of that document be changed so that it

7 can be referred to without difficulty.

8 I only seek the immediate unsealing of that particular document;

9 others should remain confidential until the end of the hearing.

10 [Trial Chamber confers]

11 JUDGE MAY: The document will be unsealed.

12 MS. DEL PONTE: Thank you, Mr. President.

13 Your Honours, sentencing hearings are, by their nature, public

14 events central to the criminal justice. It is by open process in the

15 Court that the members of society learn about the nature of crimes

16 committed and the responsibility of individuals for them. It is often a

17 painful process, but it is a necessary one. I believe that today's

18 hearing is of unusual importance in bringing to light what occurred during

19 the conflict in Bosnia and Herzegovina. It is the first time in this

20 Tribunal that a senior figure in the former Yugoslavia indicted in a top

21 leadership role has admitted responsibility for horrific crimes committed

22 during the conflict in Bosnia and Herzegovina.

23 Mrs. Plavsic has pled guilty to count 3 of the indictment, which

24 is a comprehensive charge of crimes against humanity comprising

25 persecution and ethnic cleansing, crimes which resulted in untold

1 suffering for many thousands of innocent victims. Many of those who

2 survived will bear the scars for the rest of their lives, and I wish to

3 stress that there is nothing in the nature of a plea of guilty which in

4 any way alters the seriousness of the crimes themselves. They are of the

5 utmost gravity and are fully detailed in the relevant schedules to the

6 indictment. In my submission, the gravity of the crimes should be the

7 Chamber's primary consideration when determining sentence.

8 Leaders have a duty to protect all citizens of a country, and

9 crimes committed against people who deserve protection are all the more

10 serious as a result. Nevertheless, it is of enormous significance that

11 Mrs. Plavsic accept before this Chamber that horrendous crimes were

12 committed in Bosnia-Herzegovina and that she acknowledge her own

13 individual criminal responsibility for them. Her position stands in sharp

14 contrast to that of other leaders of the period, who either continue to

15 deny that crimes occurred or who try to keep themselves beyond the reach

16 of international justice.

17 Your Honours, we should not forget that this Tribunal is

18 ultimately itself an instrument of peace. Reconciliation in the Balkans

19 will not be achieved so long as denial persists. The plea of guilty by

20 Mrs. Plavsic rests upon the acceptance of two inescapable truths: First,

21 that the massive crimes set out in count 3 of the indictment did take

22 place as they are described; and second, that in playing the role she did,

23 she bears criminal responsibility. Unless those stark truths are

24 confronted honestly, as they are in these proceedings (supported of course

25 by other findings in the jurisprudence of the International Tribunal)

1 there can surely be little hope for true reconciliation in society in the

2 former Yugoslavia.

3 I do not suggest that the plea of guilty by Mrs. Plavsic should

4 compel instant forgiveness from victims or indeed from the Chamber. The

5 crimes are too serious for that. In her plea of guilty, and certainly in

6 her dealings with my office, the accused has not sought to gain personal

7 advantage or to evade responsibility for what she herself has done. But

8 the fact of the plea in itself must be an important step towards

9 reconciliation in Bosnia and Herzegovina. It must help to break down

10 revisionism and denial, and I hope that it will compel others to face up

11 to the reality of what happened during the conflict.

12 Your Honours, the Chamber will hear more on these aspects of the

13 plea from eminent witnesses called to give evidence in the course of the

14 next two days, as it will hear more on the crimes themselves and the role

15 played by Mrs. Plavsic. In their commission, I would now, therefore, ask

16 Mr. Harmon to outline in greater detail to you exactly how the proceedings

17 will unfold.

18 Thank you very much, Mr. President.

19 MR. HARMON: Thank you, Madam Prosecutor.

20 Good morning, Mr. President, Your Honours. Good morning to my

21 learned friends from the Defence.

22 The purpose of my opening remarks is to provide you with an

23 overview of the oral and written evidence that the Prosecution and the

24 Defence will adduce at this hearing and to identify for you the witnesses

25 who will testify and to describe the nature of their testimonies.

1 Both the parties in this litigation have conscientiously

2 endeavoured to identify critical issues and evidence that can assist Your

3 Honours in determining what is a just sentence for Mrs. Plavsic for her

4 admitted criminal responsibility for a crime against humanity. During the

5 next two days, we will present this evidence to you.

6 In considering the legal framework for this sentencing hearing,

7 the parties have considered the Statute of the Tribunal, the Tribunal's

8 Rules of Procedure and Evidence, and the jurisprudence of the Tribunal.

9 We are in agreement as to the factors that are proper and relevant for

10 your consideration, and we have addressed each of them comprehensively in

11 our respective sentences briefs that were filed on the 25th of November,

12 2002. Those factors are:

13 One, the gravity of the offence;

14 Two, the individual circumstances of the convicted person;

15 Three, any aggravating and mitigating circumstances;

16 And four, the general practice regarding prison sentences in the

17 courts of the former Yugoslavia.

18 During the course of the next two days, we will be focussing our

19 attention on and presenting evidence about the first three of those

20 factors. The fourth factor, that is, the general practice regarding

21 prison sentences in the courts of the former Yugoslavia, will not be

22 addressed by the Prosecutor during this evidentiary hearing, as we have

23 addressed it comprehensively in our sentencing brief at paragraphs 35

24 through 39.

25 The evidence that will be submitted to you in the next two days

1 will be divided into three distinct blocks of evidence. The hearing will

2 commence with Prosecution witnesses and evidence that will focus on the

3 gravity of the offence to which Mrs. Plavsic has entered a guilty plea.

4 According to the jurisprudence of this Tribunal, it is the most important

5 factor to consider in determining sentence. I refer Your Honours to the

6 Trial Chamber judgments in Delalic and Kupreskic and to the Appeals

7 Chamber judgment in Aleksovski.

8 Now, turning to the crime to which Mrs. Plavsic has entered a

9 guilty plea. Its scale is simply immense. Count 3 of the indictment in

10 the four schedules annexed to it describe a persecutory campaign that was

11 waged in 37 municipalities in Bosnia and Herzegovina between July 1991 and

12 December of 1992. The victims of this discriminatory campaign were

13 principally Bosnian Muslims and Bosnian Croats, although other victims

14 from other ethnic groups were ensnared in its hideous web. I refer, for

15 example, to the Bosnian Serbs who rejected the policies of Mrs. Plavsic

16 and who remained in Sarajevo throughout the long and terrible siege.

17 The persecutory campaign that was directed at non-Serbs included

18 killings, unlawful detentions, destruction of non-Serb homes, businesses

19 sacred sites and the forcible expulsion of whole populations of non-Serbs

20 from areas claimed by the Bosnian Serbs.

21 We acknowledge at the outset of this hearing, Mr. President, and

22 Your Honours, that we cannot present the evidence that comprehensively

23 addresses the magnitude of the collective and the individual human

24 suffering and the material destruction that resulted from this persecutory

25 campaign, nor can we fully demonstrate the corrosive consequences of this

1 campaign and what consequences occurred in 1991 and 1992 and continue

2 presently today to erode the social fabric in Bosnia and Herzegovina. A

3 fortiori, our submissions are but the dust on the mountain of human

4 experience and suffering and can only be illustrative of the past and

5 present consequence of this crime against humanity.

6 We propose that the voice of the victims be heard through four

7 Prosecution witnesses. The first of these Prosecution witnesses will be

8 Mr. Mirsad Tokaca. He's a representative of Bosnian state commission that

9 was established in 1992 to gather and collect evidence of war crimes

10 committed in Bosnia and Herzegovina, and his testimony will touch on the

11 scale and the scope of the crimes committed and the impact on the

12 victims. He will also discuss how a failure to talk openly about these

13 crimes impedes reconciliation.

14 The second Prosecution witness will be Mr. Adil Draganovic, who is

15 a representative from the Alliance of Former Camp Inmates of Bosnia and

16 Herzegovina. His testimony on behalf of thousands of former camp

17 detainees will focus on the camps, the conditions in some of these

18 facilities, and the impact that these detention crimes had on the lives of

19 the detainees, including his own life, and he will share with Your Honours

20 his personal experience as a detainee in both Sanski Most and in the

21 Manjaca camp.

22 The third Prosecution witness will be Mrs. Teufika

23 Ibrahimefendic. Mrs. Ibrahimefendic is a psychotherapist and clinical

24 coordinator at Viva Zene, a non-governmental organisation based in Tuzla

25 but was established in 1994 and which is funded by the European

1 Community. Viva Zene provides psychosocial support to victims of war,

2 specifically to women and to children. Her testimony will permit

3 Your Honours to hear from a clinical practitioner's point of view the

4 effects of war trauma on victims and the effects of that trauma on the

5 victims today, ten years after these crimes occurred.

6 We will augment the testimony of these three witnesses with

7 written submissions of two types. First, we will augment the testimonies

8 with submissions of witnesses who have testified in other cases. We have

9 selected victim testimony from eight past or ongoing trials. Those trials

10 being the Tadic, Jelisic, Krnojelac, Stakic, Kvocka, Brdjanin and Talic,

11 and Vasiljevic cases. We will also submit to Your Honours an expert

12 demographics report which was prepared by demographers Ewa Tabeau and

13 Marcin Zoltkowski, that illustrates the significant decline of the

14 non-Serb population in the 37 municipalities that were claimed by the

15 Bosnian Serbs.

16 The segment focussing on victims will conclude with the testimony

17 of Professor Elie Wiesel, author, moralist, and recipient of the Nobel

18 Peace Prize. He will address Your Honours on behalf of the victims and

19 their need and humanity's need for justice to be rendered in this case.

20 The second segment of evidence will relate to factors in

21 mitigation. The Defence will guide you through this portion of the

22 hearing. These factors do not derogate from the gravity of the crime, but

23 they may mitigate fr