1 Thursday, 27 February 2003

2 [Open session]

3 [Sentencing]

4 [The accused entered court]

5 --- Upon commencing at 3.00 p.m.

6 JUDGE MAY: Yes, let the registrar call the case.

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

8 IT-00-39 & 40\1-S, the Prosecutor versus Biljana Plavsic.

9 JUDGE MAY: The appearances, please.

10 MR. HARMON: Good afternoon, Mr. President, Your Honours, my

11 learned friends from the Defence. My name is Mark Harmon. To my right is

12 Mr. Alan Tieger, and we will represent the Prosecutor in these

13 proceedings. Thank you.

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

15 Eugene O'Sullivan on behalf of Biljana Plavsic.

16 JUDGE MAY: Thank you.

17 This hearing is for the Trial Chamber to deliver judgement in this

18 case. What follows is a summary of the written judgement and forms no

19 part of it. That judgement is available today.

20 At a hearing on the 2nd of October of last year, the accused

21 pleaded guilty to Count 3 of the indictment, persecutions, a crime against

22 humanity. The accused's plea was entered pursuant to a Plea Agreement

23 made between the parties. In the agreement, the Prosecutor agreed to move

24 to dismiss the remaining counts of the indictment following the accused's

25 plea of guilty, and they were subsequently dismissed. A written Factual

1 Basis for the crime and Mrs. Plavsic's participation in it was filed with

2 the Plea Agreement.

3 A Sentencing Hearing was held between the 16th and 18th of

4 December. At the end of the hearing, the Trial Chamber adjourned the case

5 to consider sentence.

6 The facts were as follows: Count 3 alleges that between the 1st

7 of July, 1991, and the 30th of December, 1992, the accused, acting

8 individually and in concert with others in a joint criminal enterprise

9 planned, instigated, ordered, and aided and abetted persecutions of the

10 Bosnian Muslim, Bosnian Croat, and other non-Serb populations of 37

11 municipalities in Bosnia and Herzegovina.

12 Mrs. Plavsic is now aged 72 years, having been born on the 7th of

13 July, 1930, in Tuzla. She had a distinguished academic career as a

14 Professor of Natural Sciences and Dean of the faculty in the University of

15 Sarajevo. She was not involved in politics until she joined the Serbian

16 Democratic Party in July 1990. However, she very soon rose to become a

17 prominent member of the party, and was elected as a Serbian representative

18 to the Presidency of the Socialist Republic of Bosnia and Herzegovina on

19 the 11th of November, 1990, until December 1992. The accused was also

20 active in the Presidency of the Serbian Republic of Bosnia and Herzegovina

21 and then became a member of the collective and expanded Presidencies of

22 Republika Srpska.

23 In commenting on the individual roles of the participants in this

24 offence, the Factual Basis states that numerous individuals participated

25 in devising and executing the persecutions, but there were differences

1 both as to their knowledge of the details and their participation in the

2 execution of the objective. For her part, Mrs. Plavsic embraced and

3 supported the objective and contributed to achieving it, but she did not

4 participate in its conception and planning had a lesser role in its

5 execution than others.

6 The accused supported the objective in various different ways by:

7 - serving as co-president, thereby supporting and maintaining the

8 government and military at local and national levels through which the

9 objective was implemented;

10 - encouraging participation by making public pronouncements that force was

11 justified because certain territories within Bosnia and Herzegovina were

12 Serbian by right and Serbs should fear genocide being committed against

13 them by Bosnian Muslims and Bosnian Croats; and

14 - inviting and encouraging paramilitaries from Serbia to assist Bosnian

15 Serb forces in effecting ethnic separation by force.

16 The Serb forces, collaborating with the JNA, the MUP of Serbia and

17 paramilitary units to implement the objective of ethnic separation by

18 force, committed the persecutions in a campaign that included:

19 - killings during attacks on towns and villages;

20 - cruel and inhumane treatment during and after the attacks;

21 - forced transfer and deportation; unlawful detention and killing, forced

22 labour and use of human shields;

23 - cruel and inhumane treatment and inhumane conditions in detention

24 facilities;

25 - destruction of cultural and sacred objects; and

1 - plunder and wanton destruction.

2 The Bosnian Serb leadership, including Mrs. Plavsic, ignored the

3 allegations of crimes committed by their forces. Mrs. Plavsic disregarded

4 reports of widespread ethnic cleansing and publicly rationalised and

5 justified it. She was aware that the key leaders of the Serbian Republic

6 of Bosnia and Herzegovina ignored these crimes despite the power to

7 prevent and punish them.

8 Turning to the sentencing factors. The Trial Chamber first

9 considers the gravity of the offence, bearing in mind that this requires a

10 consideration of the particular circumstances of the case, as well as the

11 form and the degree of the participation of the accused in the crime.

12 The Prosecution submitted that the scale of the campaign in which

13 the accused participated was massive and over a vast area, with hundreds

14 and thousands expelled and many killed. The campaign was conducted with

15 particular brutality and cruelty, including torture and sexual violence.

16 The Trial Chamber accepts that this is a crime of the utmost

17 gravity, involving as it does a campaign of ethnic separation which

18 resulted in the death of thousands and the expulsion of thousands more in

19 circumstances of great brutality. The gravity is illustrated by:

20 - the massive scope and extent of the persecutions;

21 - the numbers killed, deported, and forcibly expelled;

22 - the grossly inhumane treatment of detainees; and

23 - the scope of the wanton destruction of property and religious

24 buildings.

25 Dealing next with aggravating factors, the Prosecution identifies

1 three. First, the leadership position of the accused; secondly, the

2 vulnerability of the victims; and thirdly, the depravity of the crimes to

3 which the victims were subjected.

4 The Trial Chamber accepts that the superior position of the

5 accused is an aggravating factor in the case. The accused was not in the

6 very first rank of the leadership. Others occupied that position. She

7 did not conceive the plan which led to this crime, and had a lesser role

8 in its execution than others. Nonetheless, Mrs. Plavsic was in the

9 Presidency, the highest civilian body, during the campaign and encouraged

10 and supported it by her participation in the Presidency and her

11 pronouncements.

12 While the Trial Chamber accepts that the other factors identified

13 by the Prosecutor are capable of amounting to aggravating factors, it

14 considers that in the circumstances of this case, these factors are

15 essentially subsumed in the overall gravity of the offence. Accordingly,

16 the Trial Chamber will not treat them as aggravating factors separately.

17 The Prosecution submitted that the leadership role in such a

18 campaign is clearly the sort of crime for which a sentence of life

19 imprisonment is fitting, and at the Sentencing Hearing, the Prosecutor

20 said that, in the absence of a guilty plea, a sentence of imprisonment for

21 the remainder of the life of an accused would have been appropriate.

22 The Trial Chamber, therefore, has to determine an appropriate

23 sentence for an accused who was in the high leadership position described

24 and was involved in crimes of the utmost gravity. However, the Trial

25 Chamber is unable to accept the submission of the Prosecution that the

1 severest sentence which this International Tribunal is capable of passing

2 would be appropriate in the absence of a plea of guilty. On the other

3 hand, the Trial Chamber does accept that misplaced leniency would not be

4 fitting and that a substantial sentence of imprisonment is called for.

5 Turning next to the mitigating circumstances. There is in this

6 case substantial mitigation. Indeed, the Prosecution acknowledges that

7 Mrs. Plavsic has undertaken unprecedented steps to mitigate the crime

8 against humanity for which she is responsible. The parties submitted that

9 the relevant mitigating circumstances include:

10 - the entry of a guilty plea and acceptance of responsibility;

11 - remorse;

12 - voluntary surrender;

13 - post-conflict conduct;

14 - previous good character; and

15 - age.

16 It has not been disputed that these circumstances, together with

17 reconciliation, are the relevant mitigating circumstances for the Trial

18 Chamber to consider. Before considering them, it is necessary to consider

19 the law as it applies to mitigating circumstances.

20 An accused's substantial cooperation with the Prosecutor is the

21 only mitigating circumstance that is expressly mentioned in the Rules.

22 The determination as to whether an accused's cooperation has been

23 substantial depends on the extent and quality of the information he or she

24 provides.

25 In the present case, the Prosecution asserted that there has been

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1 no such cooperation. On the other hand, the Defence submitted that the

2 accused has provided substantial cooperation by her plea of guilty.

3 As noted, cooperation with the Prosecutor is a mitigating

4 circumstance, but it does not follow that failure to do so is an

5 aggravating circumstance. Therefore, the accused's unwillingness to give

6 evidence is not a factor to be taken into account in determining sentence.

7 A Trial Chamber has the discretion to consider any other factors

8 which it considers to be of a mitigating nature.

9 Dealing first with the guilty plea, remorse, and reconciliation.

10 The accused entered a guilty plea before the commencement of trial, and

11 this is to be regarded as a circumstance in mitigation of sentence.

12 The Trial Chamber accepts the statement by the accused during the

13 Sentencing Hearing, together with expressions in her earlier statement in

14 support of the motion to change her plea, as an expression of remorse to

15 be considered as part of the mitigating circumstances connected with a

16 guilty plea. Indeed, it may be argued that by her guilty plea,

17 Mrs. Plavsic has already demonstrated remorse.

18 This, together with the substantial saving of international time

19 and resources as a result of a plea of guilty before trial, entitles the

20 accused to a discount in the sentence which would otherwise have been

21 appropriate. However, there is a further and significant circumstance to

22 be considered, namely the role of the guilty plea of the accused in

23 establishing the truth in relation to the crimes and furthering

24 reconciliation in the former Yugoslavia.

25 This theme was first sounded in Mrs. Plavsic's statement in

1 support of her change of plea in which she referred to the need for

2 acknowledgement of the crimes committed during the war in Bosnia and

3 Herzegovina as a necessary step towards peace and reconciliation and her

4 hope that her acceptance of responsibility would enable her people to

5 reconcile with their neighbours. She concluded the statement: To achieve

6 any reconciliation or lasting peace in Bosnia and Herzegovina, "serious

7 violations of humanitarian law during the war must be acknowledged by

8 those who bear responsibility - regardless of their ethnic group. This

9 acknowledgement is an essential first step."

10 The Trial Chamber accepts that acknowledgement and full disclosure

11 of serious crimes are very important when establishing the truth in

12 relation to such crimes. This, together with acceptance of responsibility

13 for the committed wrongs, will promote reconciliation. In this respect,

14 the Trial Chamber concludes that the guilty plea of Mrs. Plavsic and her

15 acknowledgement of responsibility, particularly in the light of her former

16 position, should promote reconciliation in Bosnia and Herzegovina and the

17 region as a whole.

18 The Trial Chamber accordingly gives significant weight to the plea

19 of guilty by the accused, as well as her accompanying expressed remorse

20 and the positive impact on reconciliation.

21 Next, the Trial Chamber accepts that the voluntary surrender of

22 the accused is a mitigating circumstance for the purpose of sentence.

23 Turning to the accused's conduct after the conflict. The

24 Prosecution accepted that Mrs. Biljana Plavsic, as President of Republika

25 Srpska, demonstrated considerable support for the Dayton Agreement after

1 the cessation of hostilities in Bosnia and Herzegovina. It also accepted

2 that, in that position, the accused also attempted to remove obstructive

3 officials from office and contributed significantly to the advancement of

4 the Dayton peace process under difficult circumstances in which she

5 manifested courage.

6 Testimony about the accused's post-conflict conduct was given at

7 the Sentencing Hearing. Thus, Dr. Madeleine Albright described the

8 accused as the vehicle in the Republika Srpska for making sure that the

9 Dayton Agreement was carried out. "She stood up for that at times when it

10 was very difficult, when there were those who wanted to destroy the Dayton

11 Accords."

12 Mr. Robert Frowick said that he thought of the accused as

13 "attacking corruption, injustice, and becoming the champion within

14 Republika Srpska of a struggle against criminality."

15 Likewise, Mr. Carl Bildt described the accused as courageous in

16 supporting peace implementation, a firm supporter of constitutional rule,

17 who "took great personal risk with that."

18 The fact that these witnesses, all of high international

19 reputation, came forward and gave such evidence adds much weight to the

20 plea in mitigation put forward in this regard. The Trial Chamber is

21 satisfied that Mrs. Plavsic was instrumental in ensuring that the Dayton

22 Agreement was accepted and implemented in Republika Srpska. As such, she

23 made a considerable contribution to peace in the region and is entitled to

24 pray it in aid in mitigation of sentence. The Trial Chamber gives it

25 significant weight.

1 Dealing next with the age of the accused. The Trial Chamber

2 rejects the Defence's contention that any sentence in excess of 8.2 years

3 is tantamount to life imprisonment and would constitute inhumane or

4 degrading punishment. Neither in the Statute nor in international human

5 rights law is there any prohibition against the imposition of a sentence,

6 including a life sentence, on an offender of advanced age. The European

7 Court on Human Rights has held that in certain circumstances, the

8 detention of an elderly person over a lengthy period may raise the issue

9 of the prohibition against inhumane and degrading treatment. Any such

10 treatment must attain a minimum level of severity to fall within the scope

11 of Article 3 of the European Convention on Human rights. However, regard

12 is to be had to the particular circumstances of each specific case. In

13 the instant case, the Trial Chamber can find no such relevant

14 circumstances. The medical report submitted by the accused does not

15 indicate that she is suffering from any condition which would prevent the

16 imposition of a prison sentence.

17 The Trial Chamber is also not persuaded by the Defence submission

18 that a calculation of the accused's life expectancy is a crucial factor in

19 determining sentence. However, the Trial Chamber considers that it should

20 take account of the age of the accused and does so for two reasons.

21 First, physical deterioration associated with advanced years makes serving

22 the same sentence harder for an older than a younger accused. Second, an

23 offender of advanced years may have little worthwhile life left upon

24 release.

25 The Trial Chamber prefers to determine an appropriate sentence

1 corresponding to the gravity of the offence, taking into account the age

2 and the circumstances of the accused. For these reasons, the Trial

3 Chamber considers as a mitigating factor the advanced age of the accused,

4 and in doing so, it takes into account the medical report filed on her

5 behalf.

6 Consequently, the Trial Chamber finds that the following are the

7 relevant substantial mitigating circumstances in this case:

8 - guilty plea, together with remorse and reconciliation;

9 - voluntary surrender;

10 - post-conflict conduct; and

11 - age.

12 To each of these circumstances, the Trial Chamber attaches weight.

13 In particular, the Trial Chamber attaches great weight to Mrs. Plavsic's

14 guilty plea and post-conflict conduct. Together, these circumstances make

15 a formidable body of mitigation.

16 During the closing arguments, the Prosecution submitted that the

17 Trial Chamber's task was to determine a sentence which addresses the

18 conduct of the accused not only towards the immediate victims but also

19 towards the whole of mankind in a campaign of persecution which destroyed

20 countless lives and communities.

21 While accepting that the breadth of these crimes justifies the

22 submission made by the Prosecution, the Trial Chamber also has in mind

23 that these crimes did not happen to a nameless group but to individual

24 men, women, and children who were mistreated, raped, tortured and killed.

25 This consideration and the fact that this appalling conduct was repeated

1 so frequently calls for a substantial sentence of imprisonment. The Trial

2 Chamber has already found this to be a crime of the utmost gravity. That

3 is the starting point for determination of sentence.

4 Furthermore, the seriousness of the offence is aggravated, as the

5 Trial Chamber finds, by the senior leadership position of the accused.

6 Instead of generally preventing or mitigating the crimes, she encouraged

7 and supported those responsible. Any sentence must reflect this factor.

8 The Prosecution submits that an appropriate sentence in this case

9 is a term of imprisonment of not less than 15 years and not more than 25

10 years.

11 The Trial Chamber considers that the Prosecution in its

12 submissions as to sentence has given insufficient weight to the age of the

13 accused and the significant mitigating factors connected with her plea of

14 guilty and post-conflict conduct.

15 The Defence, on the other hand, has made no recommendation as to

16 an appropriate sentence, submitting that since the life expectancy of the

17 accused is eight years, any sentence beyond that would amount to life

18 imprisonment and would be inappropriate. The Trial Chamber has already

19 held that the reference to life expectancy is irrelevant. Is also

20 considers that a sentence of eight years' imprisonment would fail to meet

21 the gravity of this offence.

22 The Trial Chamber has to pass sentence on a 72-year-old former

23 president for her participation in a crime of the utmost gravity. On the

24 other hand, as the Trial Chamber has found, there are very significant

25 mitigating circumstances, in particular the guilty plea of the accused and

1 her post-conflict conduct. Nonetheless, undue leniency would be

2 misplaced. No sentence which the Trial Chamber passes can fully reflect

3 the horror of what occurred or the terrible impact on thousands of

4 victims.

5 Let the accused stand.

6 Biljana Plavsic, having given due weight to the factors set out,

7 the Trial Chamber sentences you to a period of 11 years' imprisonment.

8 You have been detained in the Detention Unit for a total of 245

9 days to date. You are entitled to credit for this period of time served.

10 The Court will rise.

11 --- Whereupon the Sentencing Hearing adjourned

12 at 3.34 p.m.

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