Tribunal Criminal Tribunal for the Former Yugoslavia

Page 620

1 Wednesday, 18 December 2002

2 [Sentencing Hearing]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.34 p.m.

6 JUDGE MAY: Mr. Tieger, you're going to begin for the Prosecution?

7 If so, it would be helpful if you let us know how long you propose being.

8 MR. TIEGER: Your Honour, I would estimate approximately 45

9 minutes. In addition, the Prosecutor will conclude the final submissions

10 on behalf of the Prosecution.

11 JUDGE MAY: Very well. Very well. Yes.

12 MR. TIEGER: Mr. President, Your Honours, learned colleagues for

13 the Defence. The task before the Trial Chamber is to determine a sentence

14 for this accused for the commission of a crime against humanity, a crime

15 which addresses her conduct not only towards the immediate victims but

16 also "towards the whole of mankind." Mrs. Plavsic has pled guilty to a

17 decision discriminatory campaign of persecutions which destroyed countless

18 lives and communities. By the extent and gravity of such inhumane acts,

19 humanity itself came under attack and was negated.

20 Over the past two days, we have focussed upon two issues of

21 fundamental importance to this institution: Accountability and

22 reconciliation. These concepts have been linked since the Tribunal's

23 inception. In 1993, the Security Council determined that the mass

24 violations of humanitarian law in the former Yugoslavia and particularly

25 Bosnia and Herzegovina, required the establishment of an International

Page 621

1 Tribunal to accomplish two ends: First, to take effective measures to

2 bring to justice those persons most responsible; and second, to contribute

3 to the restoration and maintenance of peace.

4 These two objectives have converged in this historic proceeding.

5 A leader has acknowledged her responsibility for a crime against humanity

6 and simultaneously issued a statement expressing remorse and the hope that

7 it would bring some measure of consolation to the victims.

8 We have heard from witnesses who understand the crimes and their

9 consequences, from those who worked with Mrs. Plavsic after the crimes

10 occurred, from those who have devoted their lives to the possibility of

11 transformative justice and from Mrs. Plavsic herself. It will now be the

12 Court's responsibility to consider the offence and all factors in

13 aggravation or in mitigation of that crime. I will address the three

14 factors upon which this hearing has explicitly or implicitly focussed:

15 First, the scale and nature of the crimes themselves; second,

16 Mrs. Plavsic's role in the crimes; and third, Mrs. Plavsic's post-conflict

17 contributions.

18 I begin then with a discussion of the crimes. The principal

19 objectives in sentencing are the realisation of retributive justice,

20 making the punishment fit the crime, and deterrence. As previous cases

21 have held, the Court's determination of sentence rests most significantly

22 upon the gravity of the crime. It is the only factor explicitly mentioned

23 in the Statute of the Tribunal and it is the Court's primary consideration

24 in imposing sentence.

25 Your Honours, in order to ensure, however that, the judgment

Page 622

1 reflects the magnitude and nature of the crime, it is necessary to see the

2 victims as individuals, not as a massive but indistinct group, and it is

3 necessary to remember in your deliberations the individual moments of pain

4 and terror, however overwhelming the numbers. Victims individually

5 deserve justice. Each of their tears, as Professor Wiesel observed, are

6 part of this indictment.

7 For all those who need to know and care to hear about the truth,

8 the recognition of all victims of the crimes is also important.

9 Particularly for those in Bosnia and elsewhere who are subjected to

10 revisionist histories but nevertheless dare to be open to the truth, we

11 owe a detailed accounting of the crime that Mrs. Plavsic has admitted.

12 That crime, the crime to which Mrs. Plavsic pleaded guilty is

13 persecutions, a crime against humanity. The crime was the systematic

14 campaign of persecutions conducted in order to separate the Muslims and

15 Croats of Bosnia from the Bosnian Serbs in the territories claimed by the

16 Bosnian Serbs. As charged in the indictment, this persecutory campaign

17 was waged in 37 municipalities. These municipalities, as you can see from

18 Exhibit 1, spanned the breadth of Bosnia and Herzegovina. Over 700.000

19 Bosnian Muslims and Bosnian Croats lived within these municipalities

20 before the persecutions began.

21 For example, as reflected in Prosecution Exhibit 15, the

22 demographic report, 15.000 Muslims and Croats lived in Foca in 1991,

23 comprising 51 per cent of the population (and I should also note that the

24 report, for comparative analysis purposes, excludes those born after

25 1980). By 1997, of those 15.000 there were 434 Muslims and Croats left in

Page 623

1 what was once Foca; most of the others had been forcibly expelled or

2 killed in 1992. 53.000 non-Serbs lived in Prijedor in 1991; by 1997, only

3 4.000 Muslims and Croats remained. In Zvornik, there were 31.000 Muslims

4 and Croats in 1991; by 1997, there were fewer than 1.000. The

5 16.000-strong non-Serb community of Bratunac in 1991 had been 1997 been

6 reduced to hundreds. In each of these municipalities, the vast majority

7 of the Muslim and Croat community had been expelled, killed, or had fled

8 in terror in 1992.

9 When we look even more closely at these municipalities, we can

10 begin to understand more fully both the efficiency and the ruthlessness of

11 the campaign of persecutions. Focussing on Prijedor, over 7.500 Muslims

12 lived in Kozarac in 1991; after 1992, 19 remained. Over 4.000 Muslims

13 lived in Kamicani in 1991; after the campaign of persecutions, three were

14 left. Of the nearly 3.000 Muslims in Hambarine in 1991, only five

15 remained in 1993. Carakovo, a community of 2400 people, was reduced to

16 two. Biscani, a community of 1443 Muslims, ceased to exist, no one

17 remained. In each of these settlements, the vast majority of its former

18 inhabitants had been forcibly expelled, killed, or fled in fear in 1992.

19 Indeed, as Mr. Tokaca related, hundreds of villages in Bosnia and

20 Herzegovina in the 37 municipalities were razed to the ground. Villages

21 where Muslims and Croats had lived for centuries, where people had deep

22 roots, where they had their traditions, their customs, their culture,

23 their monuments, their cemeteries. These villages no longer existed.

24 Each one of the people from these destroyed settlements and villages are

25 victims of this crime against humanity. Each victim is due justice.

Page 624

1 The campaign of persecution, however, did more than to destroy

2 these communities and make hundreds of thousands of people displaced

3 persons. The objective of separating Muslims and Croats from the homes

4 where they had lived for generations required potent methods of terror.

5 These methods, as Mrs. Plavsic has acknowledged, included the following:

6 Discriminatory measures and loss of rights; military attacks on

7 towns and villages; confinement in brutal camps and detention facilities;

8 destruction of cultural monuments; torture, inhumane treatment and

9 humiliation; rapes; killings and mass executions.

10 The assessment of the seriousness of an offence requires the Trial

11 Chamber to take into account not only quantitatively the number of victims

12 but, as the Krstic Trial Chamber noted, "qualitatively the suffering

13 inflicted on the victims." And with that guidance in mind, I'd like to

14 turn my attention to just two of the brutal methods used to separate the

15 ethnic communities, camps and killings.

16 Although detention facilities and camps varied in size and

17 conditions, they existed in every municipality charged in the indictment

18 and were characterised by mistreatment of the inmates. Approximately 400

19 detention facilities existed in the 37 municipalities identified in the

20 indictment. The worst of these - including Omarska, Keraterm, Luka,

21 Celopek, KP Dom - were visions of hell, where the only boundary to the

22 torture inflicted on the prisoners was the limit of their captors'

23 imagination. In exhibits submitted to the Trial Chamber and in

24 testimonies previously heard before the Tribunal, to which the parties

25 agree the Trial Chamber can and should refer, one chilling event after

Page 625

1 another is chronicled: A 70-year-old farmer who had already lost one son

2 in a camp forced to bring his remaining son to be beaten to death; another

3 father who always passed his single piece of bread to his son through

4 other prisoners and their dilemma about whether to tell him that the son

5 had been killed, a dilemma that was resolved when the father himself was

6 killed shortly afterward; a woman forced by day to clean up the blood of

7 beaten prisoners and by night repeatedly raped; prisoners forced to commit

8 sexual acts or even sexual mutilations upon other prisoners. This brief

9 litany of inhumanity reflects incidents that, with their own cruel

10 variations, were repeated in camps over and over. These events are just a

11 few among the many that you must consider when gauging the gravity of this

12 offence.

13 The lucky ones in camp, those who were not forced to participate

14 in a loved one's murder, or sexually mutilated, or beaten to death over a

15 period of agonising days, or raped, or subject to other torments,

16 nevertheless endured conditions that drove them to the brink of death.

17 Packed into makeshift cells, deprived of water for long periods, fed

18 starvation rations (here I ask you to recall the 90 leaves of bread

19 divided among the 2500 prisoners of Manjaca), living in their own filth

20 because they were not permitted to use the wretched toilets or were too

21 afraid they would be beaten if they tried to, lice-ridden, staunching

22 wounds with rags, subjected to daily humiliations, listening with horror

23 to the sounds of fellow prisoners being beaten and tortured, beaten

24 themselves during interrogations or just randomly, these prisoners lived

25 in fear and pain that has marked them forever. In these camps, as one

Page 626

1 prisoner testified, "we were not human beings, we were just objects ..."

2 In assessing the gravity of the crime, the Trial Chamber must remember the

3 thousands who passed through these camps and continue to bear physical and

4 emotional wounds that often cause premature death. And the Trial Chamber

5 must also remember the many who never returned from the camps.

6 The Trial Chamber must also recall the mass killings. Imagine for

7 a moment that tomorrow in any of the countries from which we come 60 men,

8 women, and children were packed into a house and deliberately burned to

9 death because of their nationality; or if 150 men were machine-gunned to

10 death in a warehouse; or if 150 people were pulled from a bus, shot, and

11 shoved down a ravine. These events would shock not only the conscience of

12 that community but of the world. Yet each of these horrific crimes did

13 occur. They occurred in Bosnia in 1992. More than 60 Muslim men, women,

14 and children packed into a house in Visegrad were burned to death; more

15 than 100 men were murdered in the Velagici school; 150 men were executed

16 in room 3 in Keraterm; 150 men on Vlasic Mountain were executed; 250

17 people in a single day in Biljani, countless others executed at the

18 Karakaj technical school in Zvornik and at the Grabovice school in Kotor

19 Varos. Yet these are but a few of the hundreds of sites, where, as

20 Mr. Tokaca testified, mass killings occurred. Each of these killings,

21 Your Honours, is the result of the campaign of persecutions for which

22 Mrs. Plavsic is responsible.

23 The scale of the killings is unfathomable, even when we focus on

24 individual municipalities. In Foca, at least 1.000 non-Serbs were killed

25 in 1992; in Sanski Most, at least 1500; in Prijedor, 2000; in Bratunac, at

Page 627

1 least 1.000; in Zvornik, the same. It only takes a few seconds to recite

2 these statistics, but they reflect the extinguished lives of mothers and

3 fathers, sons and daughters, teachers, farmers, doctors, of individuals

4 with their own unique character, goals, dreams. The face of Bosnia and of

5 humanity would have been different had they been allowed to live. The

6 Trial Chamber must remember each of them in rendering its judgment.

7 And although the events took place in 1992, their destructive

8 impact continues to this day. It is reflected, as we have heard, not only

9 in the debilitated and shortened lives of camp survivors but in the

10 blighted lives of widows and orphans or of stigmatised rape victims or of

11 depressed and withdrawn children. Each of these victims, in Dr. Boraine's

12 words, "cries to be heard."

13 In determining the gravity of the offence committed by the

14 accused, however, the Trial Chamber must consider also not only the nature

15 of the crime but the nature and extent of the accused's involvement. I,

16 therefore, turn now to an examination of Mrs. Plavsic's role in this crime

17 against humanity.

18 As history has unfortunately taught, crimes of this scale and

19 magnitude are not committed by any single person or even by a small group

20 of persons. Mrs. Plavsic committed this crime through her participation

21 with others who were committed to the same criminal objective. Each had a

22 different role but they were mutually dependent on each other to propel

23 the machinery of ethnic cleansing. As Mrs. Plavsic told us yesterday, she

24 was a necessary part. She and the others assembled, supported, and

25 maintained the machinery of persecution. In order to understand more

Page 628

1 fully Mrs. Plavsic's role and involvement, we must understand the

2 machinery and the objectives of this criminal enterprise.

3 As Mrs. Plavsic explained in the factual basis that she submitted

4 to the Court, she joined the SDS in 1990. She had been nominated by the

5 SDS as a candidate in the 1990 elections for the Presidency of Bosnia and

6 Herzegovina and she was elected as one of the two Serbian representatives

7 on the Presidency in November.

8 The SDS was committed to the concept of all Serbs in one state, a

9 political concept that is, of course, not illegal. One of the ways to

10 achieve this, however, was by separating the nations in Bosnia and

11 Herzegovina and forming a Serbian portion of Bosnia which could then be

12 linked to Serbia. This possibility could be realised in two ways: By

13 peaceful and lawful agreement or by force. And by October 1991, as

14 Mrs. Plavsic explained in the factual basis, she and other key leaders

15 were committed to ethnic separation by force if they couldn't get what

16 they wanted through agreement. As Mrs. Plavsic explained yesterday, they

17 were committed to do whatever was necessary.

18 And, as Mrs. Plavsic has also acknowledged, she and her

19 co-participants knew what that force would be - a discriminatory campaign

20 of persecution that would force out Muslims and Croats, a campaign that

21 would encompass discrimination, attacks on Muslim towns and communities,

22 killings, and inhumane treatment. Indeed, in October 1991, Radovan

23 Karadzic warned the Muslims that they would be eliminated if they

24 continued to seek a sovereign and independent Bosnia and failed to accede

25 to Serbian demands.

Page 629

1 The members of this joint criminal enterprise began in October

2 1991 to intensify preparations to separate Bosnia by force. In the months

3 following, they armed large segments of the Bosnian Serb population,

4 established Serbian military and police formations, and distributed

5 written instructions to lower level SDS leaders to form Crisis Staffs,

6 proclaim Serbian assemblies, carry out preparations for the formation of

7 municipal governments, and mobilise Bosnian Serb police and Territorial

8 Defence forces.

9 As these preparations were being made, the political organs of the

10 Serb-claimed territories in Bosnia were being formed. Beginning October

11 1991, the Serbian Republic of Bosnia and Herzegovina and its governmental

12 organs were established. Importantly, on the 12th of May, 1992, the

13 Assembly of the Serbian People of Bosnia and Herzegovina promulgated the

14 strategic objectives of the Serbian people, the first and most important

15 of which was ethnic separation.

16 Mrs. Plavsic became co-president of the Serbian Republic on the

17 28th of February, 1992, and became a member of the collective Presidency

18 and then the expand collective Presidency from 12 May 1992 until December

19 of that year. These bodies were the supreme executive authority over the

20 Bosnian Serb military, police, and civilian forces and authorities that

21 implemented forcible ethnic separation through the campaign of

22 persecution.

23 The Bosnian Serb leadership had forces at its disposal that it

24 knew were far more powerful militarily than the non-Serbs in Bosnia and

25 Herzegovina, as Mrs. Plavsic has acknowledged. The forces under the

Page 630

1 direction and control of the SDS and the collective Presidency - the

2 Bosnian Serb military, which was financed and logistically supported by

3 Belgrade, the Bosnian Serb police and civilian forces - they all

4 collaborated with the JNA, the Ministry of Internal Affairs of Serbia and

5 paramilitary units from within and outside Bosnia. Together, they

6 represented an overwhelming force that implemented ethnic separation by

7 force through the crimes, destruction, and death that I described earlier.

8 Mrs. Plavsic was not one who beat a detainee or burned a house,

9 not one who pulled a trigger, nor was she a mid-level bureaucrat who

10 willingly implemented a strategic objective passed down from above. She

11 was one of the beacons of those who did; one of those who imbued them with

12 a mission to use criminal means to achieve her vision of an ethnically

13 separated Bosnia. She was one of the leaders of the effort, and she

14 embraced its goal and supported it in various ways.

15 Her support for the criminal enterprise was expressed in her role

16 as co-president and then as a member of the collective and expanded

17 collective Presidencies. From those positions, she supported and

18 maintained the governmental and military bodies at the local, municipal,

19 regional, and national levels through which the objectives of forcible

20 ethnic separation through a persecutory campaign was implemented.

21 She also became known as perhaps the most intransigent, hard-line

22 and anti-Muslim of Bosnian Serb leaders. From her leadership position,

23 Mrs. Plavsic encouraged Bosnian Serbs to pursue the objective of ethnic

24 separation by force. She told Bosnian Serbs that they were entitled to

25 the land on which non-Serbs were living and she encouraged Serbs to pursue

Page 631

1 forcible ethnic separation by telling them that Muslims and Croats were

2 enemies intent on committing genocide of Serbs.

3 Mrs. Plavsic supported the persecutory campaign by inviting

4 paramilitary forces from Serbia to assist Bosnian Serb forces in that

5 effort. From her leadership position, she publicly denied crimes that

6 occurred, praised the forces that were committing them, and publicly

7 justified ethnic cleansing.

8 Among the small core of leaders at the top level of the joint

9 criminal enterprise, there were others whose influence and control was

10 greater than hers. Mrs. Plavsic did not possess the degree of control of

11 the Bosnian Serb leaders who were the pre-eminent and controlling

12 authorities and who by virtue of their positions exercised primary control

13 over the subordinate figures and groups which carried out ethnic

14 separation by force. Unlike them, she did not participate with Slobodan

15 Milosevic and others in the conception and planning of forcible ethnic

16 separation and she had a lesser role in its execution than did they.

17 This distinction, however, does not alter her responsibility as a

18 leader or excuse the contributions that she did make to the systematic and

19 successful effort to expel people through a campaign of territory. The

20 objectives of forcible ethnic separation were implemented through a

21 hierarchical structure. At one end of this hierarchy, physically

22 implementing ethnic cleansing, were the forces I've already described. At

23 the top level of leadership, lending her authority, guidance, and support,

24 was Mrs. Plavsic.

25 Your Honours, in addition to the gravity of the crime and the role

Page 632

1 of the accused, the Trial Chamber must also consider factors in

2 aggravation and factors in mitigation. I begin with the factors in

3 aggravation.

4 The commission of a crime from a position of leadership has been

5 consistently held to be an aggravating circumstance. The sentencing

6 briefs of the parties agree that the jurisprudence holds that a person who

7 abuses or wrongfully exercises power deserves a harsher sentence than a

8 person acting on his or on her own. This reflects, of course, the

9 enhanced power for good or evil possessed by persons who assume a position

10 of leadership. Positions of far less significance than Mrs. Plavsic's

11 leadership role have been found to be aggravating factors. Indeed, she

12 was the leader of those for whom such aggravating circumstances have

13 previously been found. It is our submission that Mrs. Plavsic's role as a

14 leader is a factor in aggravation.

15 The commission of violent offences against vulnerable persons or

16 those placed in a position of vulnerability is a factor also in

17 aggravation. Who were the victims of this crime against humanity? They

18 were people, as Mr. Tokaca explained, stripped of all legal protection.

19 They were the skeletal, half-dead men in the camps, women left with no

20 protection in villages and repeatedly raped, the elderly too frail to

21 flee, children whose only crime was that they were Muslims living on a

22 land that was sought by others. It is our submission that the

23 vulnerability of the victims is also an aggravating factor.

24 The jurisprudence of the Tribunal has also found that humiliation

25 and degradation of victims, as well as sadistic acts to which they may

Page 633

1 have been subjected, is a factor in aggravation. The degrading and

2 sadistic acts in any single camp on any single day would be sufficient to

3 aggravate this crime, as would the rapes in any one of the towns that

4 Mr. Tokaca described, where those implementing forcible ethnic separation

5 used the sexual act to degrade women and their families in a traditional,

6 conservative society. As Mr. Tokaca observed, the Muslims and Croats were

7 targeted for humiliation so that "every self-respect would be stifled in

8 the victims." It is our submission that the humiliation and degradation

9 of the victims is also an aggravating factor.

10 The Trial Chamber may also consider the scope of the crimes as

11 factors in aggravation. Such aggravating factors may include the scale

12 and planning of the offence, the number of victims, the length of time

13 over which crimes were committed, the violence of the crimes and their

14 widespread and systematic nature. As we heard during the hearing, and as

15 I outlined earlier, the scale and nature of this persecutory campaign and

16 its carnage were at a level reminiscent of and not seen since World War

17 II. The Prosecution submits that the scope and nature of the crimes are

18 also aggravating factors.

19 Your Honours, I would now like to address the factors in

20 mitigation. We have addressed these in our sentencing brief, and while

21 this is an area that my learned friends from the Defence will discuss in

22 detail, I would like to briefly address some of those factors. At the

23 outset, the Prosecution observes that the factors in mitigation in no way

24 derogate or minimise the gravity of the offence.

25 The Prosecution submits that age is an appropriate factor for the

Page 634

1 Trial Chamber to consider. We disagree, however, with the Defence on the

2 weight to be given that factor. The Defence has suggested, although

3 refraining from directly asserting, that the sentence to be imposed must

4 be less than the accused's projected life expectancy. We submit, as

5 discussed in the Prosecution's sentencing brief, that the law provides a

6 clear answer to the contrary. While the Trial Chamber may certainly take

7 age into account in determining sentence, the cases addressing this issue

8 do not hold that a sentence for an older accused should not exceed the

9 number of years that person is expected to live. Instead, the cases

10 emphasise that the Court must fix a sentence that reflects the gravity of

11 the offence, even if it exceeds life expectancy projections. In short,

12 Your Honour, the age of the accused does not trump the significance of the

13 crime or the aggravating factors surrounding the crime for which the

14 accused is to be sentenced.

15 The jurisprudence of the Tribunal holds that the conduct after the

16 commission of the crime that contributes to society may be considered in

17 mitigation of sentence. For that reason, Mrs. Plavsic's conduct after

18 1995 has been one of the central issues in the sentencing hearing.

19 The Prosecution acknowledges that Mrs. Plavsic's role in the

20 implementation of the Dayton Peace process is a factor that is proper for

21 your consideration. Another factor in mitigation is the fact that

22 Mrs. Plavsic, upon hearing of the indictment against her, voluntarily

23 surrendered herself to the jurisdiction of the Tribunal. This must be

24 contrasted to the conduct of others who remain fugitives from

25 international justice.

Page 635

1 The Trial Chamber should also take into account both her guilty

2 plea before trial and also acknowledgement of the crimes. This stands in

3 contrast to the conduct of others who attempt to hide behind the

4 historical sufferings of their people or attempt to deflect attention from

5 their own crimes by falsely claiming that the allegations against them are

6 allegations and accusations against the Serbian people. Her expression of

7 remorse and truthful acknowledgement of the facts underlying the crime are

8 a hopeful step in the process of reconciliation.

9 Your Honours, in addition to outlining the evidence, it is the

10 Prosecution's responsibility, as explicitly requested by the Court, to

11 recommend a sentence. We have carefully considered the unique factors in

12 this case in full recognition of the fact that there may be no single

13 figure, no precise number of years of imprisonment that can simultaneously

14 satisfy both the gravity of the crimes and the nature of Mrs. Plavsic's

15 plea. In reaching our recommendation, we have considered both aggravating

16 and mitigating factors and we have been guided by several important

17 considerations.

18 The first and foremost is the gravity of the crime, which

19 according to our jurisprudence is the single most important factor in

20 sentencing. The gravity of the crime consists not only of its nature and

21 scope but also the of the factors aggravating its commission.

22 The second factor is deterrence. The objective of international

23 justice is to ensure that crimes such these never take place again. For

24 this reason, this judgment must, in the words of Professor Wiesel, be

25 remembered beyond frontiers and across centuries.

Page 636

1 A third consideration is that, as Dr. Boraine explained, any

2 effort to achieve justice that fails to recognise the enormity of these

3 crimes will itself actually jeopardise the transformative potential of

4 Mrs. Plavsic's actions.

5 Your Honour, this concludes my remarks. The Prosecutor will now

6 make the final Prosecution submissions. Thank you.

7 JUDGE MAY: Has your recommendation changed during the hearing,

8 and if so, you should say what it is.

9 MR. TIEGER: Your Honour, I believe the Prosecutor will be

10 addressing that very issue.

11 JUDGE MAY: Very well. Thank you.

12 MS. DEL PONTE: [Interpretation] Mr. President, Your Honours, dear

13 colleagues from the Defence, these are my final considerations following

14 detailed submissions by my colleague, so all that is left for me to do is

15 to conclude our final arguments in the hearing which has been of

16 particular significance following the guilty plea by the accused

17 Mrs. Plavsic.

18 I have followed this file step by step. Mrs. Plavsic's guilty

19 plea did not take us by surprise, since it was nothing but a further step

20 in her development since 1995, basically starting with the Dayton Accords.

21 During these days we have heard testimony dating back to this period. It

22 made it possible for us to understand that Dayton was, for her, the

23 starting point of a new development, of a new trajectory.

24 However - and we heard this, and we will keep repeating it - this

25 does not derogate the criminal responsibility of the accused, her

Page 637

1 involvement in ethnic cleansing, in the most serious crimes against

2 humanity. Should - we know - that carry a penalty of imprisonment for the

3 remainder of her life, as provided by Article 24 of the Statute, duly

4 taking into account the gravity of the offence, the individual

5 circumstances of the accused person, and all the aggravating factors that

6 have been described above? We even have a precedent in our jurisprudence

7 of the Rwanda Tribunal. We have a former Prime Minister who pleaded

8 guilty and who was convicted to imprisonment for the rest of his life.

9 However, Mr. President, Your Honours, since Madam Plavsic started a new

10 path by her guilty plea, by admitting her personal criminal

11 responsibility, and above all by accepting to pay the price for her crimes

12 before justice, in our submission the accused Plavsic should not only

13 enjoy mitigating factors but she should also have a reduced sentence.

14 Nevertheless, I must again observe that if the accused is on the

15 right path, she still has not gone the full length of her journey.

16 Inasmuch as we know, one of the mitigating factors expressly provided by

17 Rule 101 is cruelly missing in her case. In other words, this factor will

18 have to be taken into account by the Trial Chamber when fixing the

19 sentence.

20 Indeed, the accused is not willing to cooperate with the

21 Prosecutor, and as stated by law, she is not willing to provide

22 substantial cooperation with the Prosecutor. Indeed, so far I have not

23 been able to convince her of the need to undertake the last step of her

24 journey, of her admitting responsibility, this last step being that she

25 would be willing to appear as a witness on essential and relevant facts in

Page 638

1 other trial proceedings.

2 Having said this, Mr. President, Your Honours, and for all the

3 reasons that have already been mentioned by my colleagues and by myself,

4 as well as for all the arguments contained in the Prosecutor's sentencing

5 brief, I ask that the accused, Mrs. Plavsic, be convicted by the Chamber

6 to a penalty ranging from 15 to 25 years of imprisonment. Thank you,

7 Mr. President.

8 JUDGE ROBINSON: Madam Prosecutor, may I ask you: Absent the

9 guilty plea, what in the Prosecutor's view would have been an appropriate

10 punishment?

11 MS. DEL PONTE: [Interpretation] Absent the guilty plea by the

12 accused, we would have required imprisonment for the remainder of her

13 life.

14 JUDGE ROBINSON: Thank you very much. Another issue I wanted to

15 raise with you was the comment you just made about the fact that she has

16 not cooperated. Am I to understand from your submission that this is

17 something that the Chamber would take into account in the sense that it

18 would reflect adversely on her?

19 MS. DEL PONTE: [Interpretation] Exactly. So, Your Honours, let me

20 add that in discussing with the accused, in speaking with her and her

21 Defence lawyers, since the judgment will not be cast today but over a

22 period of time, I still believe that Mrs. Plavsic might decide to

23 cooperate with us.

24 JUDGE ROBINSON: I'm not sure that that's my understanding of it.

25 I think the Chamber must take it into account as a mitigating factor if

Page 639

1 there has been substantial cooperation. But if there hasn't been

2 substantial cooperation, that is not something which the Tribunal -- which

3 the Chamber will use against the accused. It works positively where it is

4 present in favour of the accused who has pleaded guilty, but my reading is

5 that it does not work negatively against the accused if the accused does

6 not cooperate. The position is simply neutral.

7 MS. DEL PONTE: [Interpretation] Quite so. I'm not saying that one

8 should increase the sentence because she fails to cooperate. According to

9 the law, the fact that somebody cooperates is a mitigating factor. What

10 I'm telling the Court is that in this case, there is no such mitigating

11 factor.

12 JUDGE ROBINSON: Yes. But you also asked us to take it into

13 account, and that was what was misleading. But I think we understand each

14 other now.

15 MS. DEL PONTE: [Interpretation] Yes, Your Honour.

16 JUDGE MAY: Mr. Pavich, how long do you think you are likely to

17 be?

18 MR. PAVICH: I would estimate 25 -- 20 to 25 minutes, Your

19 Honours.

20 JUDGE MAY: Very well. Yes.

21 MR. PAVICH: Your Honours, Madam Prosecutor, counsel,

22 Mrs. Plavsic. On Monday, my colleague Mr. O'Sullivan described this

23 sentencing hearing as the most important sentencing hearing that is likely

24 to be conducted or has ever been conducted by this Tribunal. Our

25 obligation today is to assist you in arriving at the most important and

Page 640

1 most difficult judgment which is or will be pronounced from this Tribunal.

2 One of the disadvantages in proceeding after having heard the

3 presentation of the Prosecution, is that we must often react to points

4 that have been made, that have come up in the questioning of the Court to

5 the Prosecutor and to counsel. And that questioning really gets to the

6 heart of our disagreement in this case.

7 As Mr. Tieger has told you, the facts that he's brought before the

8 Court today are facts that are in the factual basis that were signed by

9 counsel and Mrs. Plavsic. We have no disagreement about the horrific acts

10 that occurred in 1991 and 1992. Mrs. Plavsic's role, a lesser role, as

11 Mr. Tieger has acknowledged, than that of other leaders, has been detailed

12 and in fact has been even more fully detailed in the affidavit that has

13 been submitted in as Exhibit Number 20, by Mr. Larry Hollingworth

14 who is the representative of the United Nations -- the UNHRC in 1992 to

15 1994. This has been submitted to Your Honours. I simply refer you to it

16 because I think it more -- even more completely describes the work that

17 she was doing with the international community. As she told you

18 yesterday, she considered the international community to be the enemy of

19 the Serbs in 1991 and 1992. Nonetheless, Mr. Hollingworth, in his

20 affidavit that has been filed before the Court describes to the Court her

21 extensive work in providing -- in allowing him to provide humanitarian aid

22 into the besieged city of Gorazda and to assist him in 1992 and 1993 in

23 his efforts to relieve the human suffering that was the result of this war

24 and was the result of this campaign.

25 He concluded in his submission to this Court in his description of

Page 641

1 her -- which I think is not inconsistent with how she has been described

2 in the factual basis: "In 1993, I was --" on page 2 of the

3 affidavit -- "head of the UNHCR operation in Banja Luka and during this

4 time Mrs. Plavsic visited on several occasions. She ensured that I had

5 easy access to her. She was courteous and considerate. She facilitated

6 contact with the highest authorities in the region. She gave good advice.

7 She never promised what she could not do. She never failed to honour what

8 she promised, but she never compromised on her hard Serb attitude. She

9 firmly believed that the Serbs were victims of a propaganda war. She

10 firmly believed that the Muslims committed many atrocities against the

11 Serbs. I have cause to challenge and condemn the actions of the

12 leadership of the so-called Republic of Srpska, but in my opinion,

13 Mrs. Plavsic was the least guilty."

14 I think this fully fleshes out the role that we have acknowledged

15 that Mrs. Plavsic, in giving her name, her authority, her respect to what

16 was an intentional campaign to remove Muslims and Serbs -- Muslims and

17 non-Serbs, Croats, from this area, what that role was. We haven't shirked

18 it and anyone who heard what she said yesterday cannot for a moment

19 believe that she's attempting to avoid her responsibility, attempting to

20 avoid acknowledging what happened, and is making every effort to see that

21 the truth will come before this Tribunal and before the world.

22 Where is it that we disagree? The Prosecution believes that

23 justice demands that this sentence to be imposed by this Court will be

24 what cannot be described in any other way but as a life sentence, a

25 sentence that will be two or perhaps three lifetimes for someone who has a

Page 642












12 Blank pages inserted to ensure pagination corresponds between the French and

13 English transcripts. Pages 642 to 646.













Page 647

1 life expectancy of a 72-year-old. This may technically not be requesting

2 this Court to impose a life sentence, but in reality can anyone think

3 otherwise?

4 And this gets to the heart of our disagreement in this case and

5 gets to the most difficult issues that this Court must grapple with: How

6 will justice be served in this judgment? This Tribunal, as Mr. Tieger

7 told us, and as I'm sure this Court is aware, was created in order to

8 restore and maintain peace in the Balkans; to end, as I think Mr. Bildt

9 told you yesterday, this seemingly endless cycle of violence that has been

10 the living memory for those in Mrs. Plavsic's generation and continues to

11 this day to the extent that the refusal to bring the truth before the

12 Court, the refusal to request others to come forth and accept their

13 responsibility, the refusal of other leaders on all sides of this conflict

14 to come forth before this Tribunal perpetuates this endless cycle of

15 violence, of suffering that she, probably more than anyone else in this

16 courtroom, has as her living memory. Can anyone doubt that that is why

17 she has come forth?

18 And we've heard in the last three days from three witnesses who

19 have dedicated if not their entire lives over the past ten years,

20 certainly the core of their lives to trying to determine how to heal the

21 kinds of wounds that have been caused by these kinds of ethnic campaigns

22 of violence. And their answer, I submit to the Court, is that the most

23 important thing that must be done is to serve the victims and the victims'

24 children and their children's children by encouraging truth-telling and

25 acknowledgement of responsibility.

Page 648

1 Mr. Tokaca -- I will direct you briefly, Your Honours, to what was

2 powerful and moving testimony from one who did not look at this

3 academically but who has dealt directly with trying to deal with the most

4 -- the results of the most inhuman conduct that one person can inflict

5 upon another. What is the solution? How do we finally come to some means

6 through -- that this Court has in its power to deal with this? And he was

7 asked the question, I think by Mr. Harmon: "I ask your view of the

8 potential contribution toward reconciliation of Mrs. Plavsic's

9 acknowledgement of the crimes and acceptance of responsibility."

10 His answer: "It was my position that it was an extremely

11 courageous, brave, and important gesture, that it represents support to

12 what is the ultimate aim of all of us. I feel that at one point normal

13 conditions of life should be resumed in Bosnia-Herzegovina, not only in

14 Bosnia-Herzegovina but in the entire region as well. So I see this as

15 being essential, and I do believe and I hope that this admission of guilt

16 comes from the heart. This is why this recognition of guilt is so

17 important, that we can continue to this narrative. For me, it would be a

18 bad thing if Mrs. Plavsic were to remain silent. It is important for our

19 children and for so much of us that the truth," he says, "come out." I'm

20 not now quoting from the transcript, but I think we can all recall what he

21 said. He's dedicated his life to finding the truth, a truth commission,

22 to get to the truth and to get an acknowledgement of the truth.

23 Mr. Bildt talked to us about how we have to end this endless cycle

24 of violence and retribution by not dealing with what happened in 1990 and

25 1991 and 1992 as had been done in 1940 and 1941 and 1942, by putting a lid

Page 649

1 on what had happened, by not allowing people to discuss it, by not

2 creating conditions in which people would be encouraged to come forth and

3 speak the truth.

4 And who could speak more powerfully to the issue than

5 Dr. Boraine, whose message was repeatedly, both from questions from

6 Mr. Tieger, questions from Your Honour, that the victims are served by

7 truth-telling, the victims are served by acknowledgement of responsibility,

8 the victims are served by ending this cycle.

9 And I respectfully disagree with Madam Prosecutor, because if we

10 were trying to achieve the ultimate goals of this Tribunal -

11 reconciliation, peace, stability in the Balkans - can one imagine more

12 substantial cooperation than Mrs. Plavsic has given this Tribunal and

13 those members of the Prosecution, but most importantly, the individual

14 victims of these horrendous crimes, crimes, unfortunately, as we all know

15 from the jurisprudence of this Tribunal, that were committed against all

16 sides. So it is Mrs. Plavsic's call for those other leaders to come

17 forth, tell the truth, accept responsibility. That will best serve the

18 victims, that will best serve the purposes and the goals of this Tribunal.

19 Will what can only be described as a life sentence, which is the

20 maximum penalty under the law of this Tribunal, encourage others to heed

21 Mrs. Plavsic's call to examine their own conduct and to come forth? What

22 depends upon your answer to this question was expressed at the conclusion

23 of the testimony of Dr. Boraine. For the Court, reading from the

24 conclusion of his testimony, 15.24, line 40: "And it does seem to me, in

25 my final sentence, that looking at Mrs. Plavsic's record, both in terms of

Page 650

1 the seriousness of her crime and also in the change of behaviour and her

2 acknowledgement and confession, that in some way she seems to have a second

3 chance and is to be commended for that. But much more importantly, I

4 think that the people of the former Yugoslavia deserve a second chance and

5 to move away from the prejudices and the hatreds of the past to a more

6 tolerant, more decent future with human rights as its centrepiece, and if

7 her behaviour and her actions and her words can assist the people of that

8 part of the world who have suffered so much, then I hope that with time

9 and courage, the cause of narrow nationalisms will wane and pluralistic

10 societies grounded in human rights and the rule of law will emerge the

11 reality, as there is no other choice that can contain, that

12 can guarantee a sustainable peace in the region."

13 Your Honours, no less is at stake in the matter which is now

14 placed in your hands. Thank you.

15 JUDGE MAY: Mr. Pavich, before you finish, so that we have your

16 submissions, your submission is really, first of all, that cooperation has

17 been supplied by the plea of guilty, effectively.

18 MR. PAVICH: We, as I've said a moment ago, Your Honour, believe

19 that the most substantial cooperation that can be conceived of has been

20 given by us in what Mrs. Plavsic has done in a plea of guilty and in this

21 sentencing hearing, that we have cooperated --

22 JUDGE MAY: In any event --

23 MR. PAVICH: -- before the Court.

24 JUDGE MAY: In any event, the most that can be said about it is

25 this: That even if she has not cooperated, as the Prosecutor says, by

Page 651

1 being prepared to give evidence, it's simply something which is not an

2 advantage to her, but it's certainly not something which can be held

3 against her. It is a neutral factor.

4 MR. PAVICH: We certainly feel that the Prosecutor's

5 interpretation of whether or not Mrs. Plavsic has cooperated should not be

6 used against Mrs. Plavsic.

7 JUDGE ROBINSON: But you're going further. You're saying that --

8 MR. PAVICH: I would suggest the Court go further.

9 JUDGE ROBINSON: -- through the guilty plea.

10 MR. PAVICH: I would suggest the Court go further because we

11 believe through this guilty plea and through what has transpired in this

12 courtroom over the past few days is the most substantial cooperation

13 conceivable.

14 JUDGE ROBINSON: But cooperation can take several forms.

15 MR. PAVICH: It certainly does, Your Honour, and that's the

16 essence of our respectful disagreement with the Prosecutor.

17 JUDGE MAY: The other matter I want to ask you about is this:

18 Your recommendation. You don't specifically make one, but your submission

19 effectively is this in your brief: That having regard to the life

20 expectancy of the accused, that any sentence more than eight years'

21 imprisonment is in effect a life imprisonment and you, therefore, submit

22 that we shouldn't pass a sentence beyond that. Is that right?

23 MR. PAVICH: We believe that such a sentence, Your Honour, would

24 discourage people from coming forth and doing what she has done.

25 JUDGE MAY: Very well.

Page 652

1 The Trial Chamber will consider the sentence in this case. We

2 will deliver judgment on a date to be fixed as soon as practicable after

3 the recess.

4 There being no objection and the circumstances exceptional, the

5 accused may remain on provisional release until required to return here

6 for sentence. She must remain in detention until suitable arrangements

7 can be made. The condition or the conditions of release remain the same

8 as before. The fact that release has been continued must not, however, be

9 taken as any indication as to the length of sentence.

10 The court will adjourn.

11 --- Whereupon the Sentencing Hearing adjourned

12 at 3.37 p.m.