The Prosecutor v. Momir Nikolic – Case No. IT-02-60/1-S

“Sentencing Judgement”

2 December 2003
Trial Chamber I, Section A (Judges Liu [Presiding], Vassylenko and Argibay)

Procedural Background

· According to the Initial Indictment¹, Momir Nikolic was charged as a member of a joint criminal enterprise, the common purpose of which was “to forcibly transfer the women and children from the Srebrenica enclave to Kladanj, on 12 July and 13 July 1995; and to capture, detain, summarily execute by firing squad, bury, and rebury thousands of Bosnian Muslim men and boys aged 16 to 60 from the Srebrenica enclave from 12 July 1995 until and about 19 July 1995”.² He was charged with six counts : Genocide or, in the alternative, Complicity in Genocide, punishable under Articles 4(3)(a) and 4(3)(e) respectively of the Statute; Extermination, a crime against humanity, punishable under Article 5(b) of the Statute; Murder, a crime against humanity, punishable under Article 5(a) of the Statute; Murder, a violation of the laws or customs of war, punishable under Article 3 of the Statute; Persecutions on political, racial and religious grounds, a crime against humanity, punishable under Article 5(h) of the Statute; and Inhumane Acts (Forcible Transfer), a crime against humanity, punishable under Article 5(i) of the Statute. For all counts Momir Nikolic was charged in his individual capacity under Article 7(1) of the Statute.³

· On 2 April 2002, following his apprehension by the Stabilisation Force in Bosnia Herzegovina (“SFOR”), Momir Nikolic was transferred to the custody of the Tribunal. At his initial appearance, on 3 April 2002, he entered a plea of “not guilty” to all charges in the Initial Indictment.

· On 17 May 2002, Trial Chamber II granted a Prosecution motion seeking to join the case against Momir Nikolic with that of Vidoje Blagojevic, Dragan Obrenovic, and Dragan Jokic.⁴ The Trial Chamber ordered that the four Accused be jointly charged and tried and that the Prosecution file an amended joinder indictment.⁵

· On 27 May 2002, the Prosecutor filed the Amended Joinder Indictment.⁶ Under the Indictment, Blagojevic, Obrenovic, Jokic and Nikolic were charged as members of a joint criminal enterprise, the common purpose of which was the same as that contained in the Initial Indictment. Under the Indictment the charges and mode of responsibility alleged against Momir Nikolic were identical to those set forth in the Initial Indictment.

· On 6 May 2003, the Prosecution and Momir Nikolic filed a “Joint Motion for Consideration of Plea Agreement between Momir Nikolic and the Office of the Prosecutor”. During a hearing held the same day, the Trial Chamber expressed concern about various provisions of the plea agreement particularly that the Prosecutor did not agree to dismiss the remaining charges until the time of sentencing. The Trial Chamber declined to accept the plea agreement and requested that the parties amend the agreement to take into account the observations of the Trial Chamber.⁷

· On 7 May 2003, the Prosecution and Momir Nikolic filed a “Joint Motion for Consideration of Amended Plea Agreement between Momir Nikolic and the Office of the Prosecutor ”(“Amended Plea Agreement”). During a hearing held the same day, after hearing the Parties and Momir Nikolic, the Trial Chamber accepted the Amended Plea Agreement and entered a finding of guilt against Momir Nikolic to Count 5 of the Indictment, namely Persecutions, a crime against humanity, punishable under Article 5(h) of the Statute of the Tribunal, subject to the understanding that the Prosecution would move to dismiss the remaining charges against Momir Nikolic set out in the Indictment.⁸

· On 8 May 2003, pursuant to the terms of the Amended Plea Agreement, the Prosecution moved to dismiss all remaining counts of the Indictment.⁹ The Trial Chamber granted the motion on 12 May 2003.¹⁰

· On 9 May 2003, the Trial Chamber ordered that the proceedings against Momir Nikolic be separated from those against Vidoje Blagojevic, Dragan Obrenovic and Dragan Jokic.¹¹ On 12 May 2003, the Registrar assigned case number IT-02-60/1 to the proceedings against Momir Nikolic.

· On 14 July 2003, in accordance with an order by the Trial Chamber, the Parties filed their sentencing briefs.

· The Sentencing Hearing for Momir Nikolic was held on 27-29 October 2003.

Sentencing Judgement

The Trial Chamber stated that “the count of persecutions for which Momir Nikolic had pled guilty is based on some of the most horrific events to befall the former Yugoslavia during the war, in which hundreds of thousands of people lost their lives and even more were displaced”.¹² The Trial Chamber found that Nikolic took a “pro-active role”¹³ in these crimes.

The Trial Chamber could not “accept the sentences recommended by either the Defence or Prosecution [as] neither sentence adequately reflected the totality of the criminal conduct for which Momir Nikolic has been convicted”.¹⁴

It sentenced Momir Nikolic to 27 years’ imprisonment.¹⁵¹⁶

Plea Agreement

Momir Nikolic agreed to plead guilty to Count 5 of the Indictment (Persecutions as a crime against humanity) and acknowledged his guilt and full responsibility for his actions that are the subject of the Indictment.¹⁷ He confirmed his understanding that if a trial were to be held, the Prosecution would be required to prove the elements of Article 5(h) beyond a reasonable doubt,¹⁸ specifically, (a) the existence of an armed conflict during the time alleged in the Indictment;¹⁹ (b) a widespread or systematic attack directed against a civilian population and, in a manner related to that attack, Momir Nikolic committed acts against the civilian population that violated fundamental human rights;²⁰ (c) Momir Nikolic’s conduct was committed on political, racial or religious grounds and was committed with discriminatory intent;²¹ and (d) Momir Nikolic was aware of the wider context in which his conduct occurred.²²

Momir Nikolic also agreed to “co-operate with and to provide truthful and complete information to the Office of the Prosecutor whenever requested”, including meeting with the Prosecution whenever necessary, testifying truthfully in the trial of his former co-accused under the same indictment, and “in any other trial, hearings, or other proceedings before the Tribunal as requested by the Prosecution”.²³ He confirmed that he would not appeal the sentence imposed by the Trial Chamber unless the sentence is above the range recommended by the Parties.²⁴

Momir Nikolic acknowledged that by entering a plea of guilty he had voluntarily waived certain procedural rights, including: the right to plead not guilty and require the Prosecution to prove the charges in the Indictment beyond a reasonable doubt at a fair and public trial; the right to prepare and put forward a defence to the charges at such a public trial; the right to examine at his trial, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf at a trial under the same conditions as the witnesses against him; the right not to be compelled to testify against himself or to confess guilt; the right to remain silent; and the right to appeal any finding of guilt or to appeal any pre-trial rulings.²⁵

The Prosecution, in turn, agreed that it would recommend that the Trial Chamber impose a sentence within the range of 15 to 20 years, that Momir Nikolic be given credit for time already spent in the custody of the Tribunal²⁶, and that at the time of the acceptance of the plea by the Trial Chamber, it would move to dismiss without prejudice to either party the remaining charges against Momir Nikolic set forth in the Indictment.²⁷

In both the Amended Plea Agreement and at the Plea Hearing, Momir Nikolic acknowledged that he understood the details of the Plea Agreement into which he had entered and that the plea was made entirely of his own free will. Further, he affirmed that he understood that the Trial Chamber was not bound to accept the range of sentence suggested by the Parties.²⁸ The Trial Chamber questioned Momir Nikolic at the Plea Hearing on all aspects of his guilty plea.²⁹ Momir Nikolic was then asked to enter a plea to Count 5 and pled guilty.³⁰

At the conclusion of the Plea Hearing, the Trial Chamber, on basis of the Amended Plea Agreement and of the “Statement of Facts and Acceptance of Responsibility”³¹ found that a sufficient factual basis for the crime of persecutions existed to accept the guilty plea. The Trial Chamber was satisfied that the plea of guilty met the requirements of Rule 62 bis³² and accordingly, entered a finding of guilt and convicted Momir Nikolic for Count 5 of the Indictment.³³

Factual Basis

The Trial Chamber inter alia found that between 6-11 July 1995, the enclave of Srebrenica was shelled and attacked by units of the Drina Corps.³⁴ According to the Indictment, “(i(n the several days following this attack on Srebrenica, VRS forces³⁵ captured, detained, summarily executed, and buried over 7,000 Bosnian Muslim men and boys from the Srebrenica enclave, and forcibly transferred the Bosnian Muslim women and children of Srebrenica out of the enclave”.³⁶ These acts form the basis of the crime of persecutions to which Momir Nikolic has pled guilty.

The crime of persecutions, as charged in Count 5 of the Indictment, was carried out by the following means: (a) the murder of thousands of Bosnian Muslim civilians, including men, women, children and elderly persons; (b) the cruel and inhumane treatment of Bosnian Muslim civilians, including severe beatings at Potocari and in detention facilities in Bratunac and Zvornik; (c) the terrorising of Bosnian Muslim civilians in Srebrenica and Potocari; (d) the destruction of personal property and effects belonging to the Bosnian Muslims; and (e) the forcible transfer of Bosnian Muslims from the Srebrenica enclave.³⁷

Guilty Pleas as Basis for Conviction

The Trial Chamber examined the law of the Tribunal with regard to guilty pleas. Rule 62 bis adopted during the Fourteenth Plenary Session of 20 October and 12 November 1997³⁸, provides the elements which must be established to enter a conviction upon a guilty plea. Rule 62 ter³⁹ of the Rules provides the procedure for plea agreements between the Prosecution and the Defence. This provision was adopted during the Twenty-Fifth Plenary Session of 13 December 2001. Prior to the introduction of Rule 62 ter, six “plea agreements” had been reached between the Prosecution and Defence teams in relation to guilty pleas.⁴⁰ The Rule was proposed by the Prosecution to establish a formal procedure for a practice which was already in existence.⁴¹ It was thought that by having a procedure in the Rules for plea agreements, it would give guidance to all parties and the accused who often come from systems where plea agreements are not common or used at all.⁴²

Plea Agreement Procedure

Negotiations

The Trial Chamber stated that the Plea Agreement is the result of negotiations between the Prosecution and the Accused.⁴³ The issues discussed may include: the charges to which the Accused will plead guilty, the factual allegations contained in the Indictment, the amount of cooperation between the Accused and the Prosecution, agreement on the sentence or sentence range to be recommended, agreement not to appeal the sentence if it is within the ranged recommended in the Plea Agreement, and agreement from the Accused to waive certain procedural rights. The Trial Chamber is not involved in the negotiations stage of the Plea Agreement as it must remain impartial. Moreover, as Judges are the guarantors of an accused’s rights, participation in negotiations may prejudice the right to be presumed innocent, in the event that the plea negotiations fail.⁴⁴

Review by the Trial Chamber

Once an agreement has been reached, it is subject to review by the Trial Chamber. A Trial Chamber may inquire into the terms of the agreement to ensure neither party was unfairly treated and particularly that the rights of the accused are respected.⁴⁵ Once the plea agreement has been accepted, a Trial Chamber will continue in its role as guarantor of the fairness of the proceedings and protector of the rights of the accused by inquiring into the nature of the guilty plea, pursuant to Rule 62 bis of the Rules.⁴⁶

The guilty plea must have been; (i) made voluntarily, (ii) informed, (iii) not equivocal and (iv) there must be sufficient factual basis for the crime and the accused’s criminal conduct. After satisfying itself that the four pre-requisites for accepting a guilty plea have been met, a Trial Chamber may enter a finding of guilt. Thus, a Trial Chamber is not bound by a plea agreement and has discretion whether to accept a guilty plea. A Trial Chamber may not accept a guilty plea if it is not satisfied with the terms of the plea agreement or has concerns that the rights of the accused have not been adequately protected or if the plea agreement is not in the interests of justice.⁴⁷

The Trial Chamber found that “while the parties have the autonomy to enter into plea agreements the Trial Chambers retain the ultimate authority over both the process and the proceedings”.⁴⁸

Appropriateness of Guilty Pleas

In light of the “increased use of plea agreements”⁴⁹, the Trial Chamber turned to the question of whether plea agreements are appropriate in cases involving serious violations of international humanitarian law. While the Trial Chamber acknowledged that plea agreements are permissible under the Statute of the Tribunal, it enumerated a number of concerns relating to such agreements, arising from both “the nature of the offences over which the Tribunal has jurisdiction and the basis for the establishment of the Tribunal, namely Chapter VII of the United Nations Charter”.⁵⁰

Mandate of the Tribunal

The Trial Chamber recalled that, when creating the Tribunal, the Security Council wanted to “put an end to such crimes”.⁵¹ The Tribunal was to achieve justice through criminal proceedings in order to realise several purposes: to take effective measures to bring to justice and punish the persons responsible for these crimes; to recognize and acknowledge the suffering of victims; to demonstrate that this type of behaviour will not be tolerated; to deter the commission of further crimes; to contribute to the restoration and maintenance of peace; to hold individuals responsible so that the guilt of the few cannot be shifted to the innocent and to provide an accessible historical record to prevent future acts of aggression.⁵²

Impact on the Mandate

The Trial Chamber stated that if convictions result from a guilty plea “certain aims of criminal proceedings are not fully realised”.⁵³ Most particularly no public trial is held, therefore no or less evidence is presented, and as a consequence the historical record is not complete.⁵⁴ The victims do not have an opportunity to be heard though a few may be called as witnesses during the sentencing hearing.⁵⁵

Most concerning for the Trial Chamber was that as a result of a guilty plea certain charges or factual allegations may be withdrawn. In cases where factual allegations are withdrawn, the “public record established by that case might be incomplete or at least open to question, as the public will not know whether the allegations were withdrawn because of insufficient evidence”⁵⁶ or because they were simply a “bargaining chip”⁵⁷ in the negotiation process.⁵⁸ In cases where charges are withdrawn, the Trial Chamber stated that extreme caution must be exercised.⁵⁹ The Prosecutor has a “duty to prosecute serious violations of international humanitarian law”.⁶⁰ Once a charge of genocide has been confirmed, it should not “simply be bargained away”.⁶¹ If the Prosecutor makes a plea agreement “such that the totality of an individuals criminal conduct is not reflected or the remaining charges do not sufficiently reflect the gravity of the offences committed by the accused, questions will inevitably arise as to whether justice is in fact being done”.⁶² Further the Trial Chamber stated that “convictions entered by a trial chamber must accurately reflect the actual conduct and crime committed and must not simply reflect the agreement of the parties as to what would be a suitable settlement of the matter”.⁶³

The Trial Chamber recognised it has a responsibility to ensure that all accused are treated equally before the law.⁶⁴ The Trial Chamber expressed concern that “the Prosecutor may seek to make a plea agreement with some accused because of their knowledge of particular events which may be useful in other prosecutions”.⁶⁵ Other accused, whose involvement may have been less, may not be offered a plea agreement.

Judicial Economy and Quality of Justice

The Trial Chamber noted “that the saving of time and resources due to a guilty plea have often been considered as a valuable and justifiable reason for the promotion of guilty pleas”.⁶⁶ It felt it could not fully endorse this argument. While it appreciated the saving of Tribunal resources, the Trial Chamber found that in cases of this magnitude, where the Tribunal has been entrusted “to bring justice to the former Yugoslavia through criminal proceedings that are fair, in accordance with international human rights standards, and accord due regard to the rights of the accused and the interests of victims,⁶⁷ the saving of resources cannot be given undue consideration or importance”.⁶⁸ The Trial Chamber stated that “it did not want to compromise the quality of the justice and the fulfilment of the mandate of the Tribunal” and that “while savings of time and resources may be a result of guilty pleas, this consideration should not be the main reason for promoting guilty pleas through plea agreements ”.⁶⁹

Advantages of Guilty Pleas

The Trial Chamber examined the advantages of guilty pleas. It recalled that other Trial Chambers and the Appeals Chamber have considered aspects of guilty pleas including the advantages such as: the accused and the Prosecutor avoid a lengthy trial; it may help an accused to “to salve his conscience and atone for his wrongdoing”; to avoid “the indignity of a public trial” and to obtain a more lenient sentence.⁷⁰ The Trial Chamber listed further advantages of guilty pleas:

- in relation to the Tribunal’s mission to assist in restoring peace and bring reconciliation to the territory of the former Yugoslavia, guilty pleas can certainly contribute significantly;

- through the acknowledgment of the crimes committed and the recognition of ones own role in the suffering of others, a guilty plea may be more meaningful and significant than a finding of guilt by a Trial Chamber to the victims and survivors;

- when an admission of guilt is coupled with a sincere expression of remorse, a significant opportunity for reconciliation may be created;

- as perpetrators are brought to justice, a guilty plea leads directly to the fulfilment of a fundamental purpose of the Tribunal;

- guilty pleas can assist investigations and provide evidence at trials.⁷¹

Conclusion

The Trial Chamber concluded that “on balance, guilty pleas pursuant to plea agreements, may further the work and the mandate of the Tribunal” but that “the use of plea agreements should proceed with caution and such agreements should be used only when doing so would satisfy the interests of justice”.⁷²

Determination of the Appropriateness of a Guilty Plea pursuant to a Plea Agreement in this case

The Trial Chamber was concerned about accepting a guilty plea due to the magnitude of the crimes committed following the fall of Srebrenica and the fact that Momir Nikolic was initially charged with genocide. However, the Trial Chamber noted the importance of having an “insider” willing to testify.⁷³ It considered Momir Nikolic’s acknowledgment of the crimes committed following the fall of Srebrenica and his role therein, as well as the role of other Bosnian Serbs members of the joint criminal enterprise, to be significant in verifying that these crimes were in fact committed and in finding who was responsible for their commission. It found that the guilty plea contributed to the process of reconciliation.⁷⁴ It held: “such an acknowledgement may contribute to the establishment of the truth in all areas and communities in the former Yugoslavia. Until such crimes have been recognised, no steps can be taken to apologise for those crimes or seek forgiveness for ones role, however large or small in their commission. Therefore, the Trial Chamber considered this to be an important factor weighing in favour of accepting the guilty plea”.⁷⁵

Penalties and Sentencing

The Trial Chamber examined the purposes of punishment in the context of the Tribunal. According to the Trial Chamber “the punishment must reflect both the calls for justice from the persons who have – directly or indirectly – been victims of the crimes, as well as respond to the call from the international community as a whole to end impunity for massive human rights violations and crimes committed during armed conflicts”.⁷⁶

The Trial Chamber found that the purposes of punishment recognised under the jurisprudence of the Tribunal are retribution, deterrence and rehabilitation. It examined the notion of retribution⁷⁷ and found that, in light of the Tribunal’s mandate retribution is better understood as an “expression of condemnation and outrage of the international community”,⁷⁸ and that “impunity will not prevail”.⁷⁹ The Trial Chamber also considered retribution as recognition of the harm and suffering caused to the victims.⁸⁰ Additionally, it considered that the purposes of punishment in the Criminal Code of the Socialist Federal Republic of Yugoslavia were rehabilitation, concepts of public safety and protection, as well as the promotion of the rule of law.⁸¹

The Trial Chamber held that “punishment must strive to attain a further goal: rehabilitation”.⁸² It observed that “the concept of rehabilitation can be thought of broadly and can encompass all stages of criminal proceedings, and not simply the post-conviction stage” and stated that reconciliation and peace can be promoted through the process of rehabilitation.⁸³

Sentencing Factors

Gravity of the offence

In determining the gravity of the offence the Trial Chamber examined the crime of persecutions, the underlying criminal conduct generally, the specific role played by Momir Nikolic in its commission and the status of the victims.

The Trial Chamber considered that “the seriousness of the crime of persecutions cannot be emphasised enough: this is a crime that can be committed in different manners and incorporates manifold acts”.⁸⁴ It noted that it is the “abhorrent discriminatory intent behind the commission of this crime against humanity that renders it particularly grave”.⁸⁵ It held that Momir Nikolic played an “active role in the commission of the crime”⁸⁶ and found a sentence in the range of 20 years to life imprisonment to be appropriate “based solely on the gravity of the crime he committed, on his role and participation in the commission of that crime, and having taken into consideration the sentencing practices in the former Yugoslavia as well as the sentencing practices of this Tribunal”.⁸⁷

Aggravating circumstances

The position of authority and role of Momir Nikolic

The Trial Chamber held that Momir Nikolic was in a position of authority as Assistant Commander and Chief of Security and Intelligence. While his tasks largely consisted of implementing rather than giving orders, Momir Nikolic directed the military police of the Bratunac Brigade, as well as co-ordinated other units. His role was of significant importance to the overall “murder operation”⁸⁸ that was ongoing. Therefore, the Trial Chamber found his position and role to be aggravating factors.⁸⁹

The vulnerability of the victims and the depravity of the crimes

The Trial Chamber found that “the depravity of the crimes is subsumed in the overall gravity of the offence”.⁹⁰ It took particular note of the vulnerability of the victims as an aggravating factor: “[t]hey were all in a position of helplessness and were subject to cruel treatment at the hands of their captors”.⁹¹

Mitigating circumstances

Guilty plea and acceptance of responsibility

The Trial Chamber found Momir Nikolic’s guilty plea to be “an important factor in mitigation of the sentence due to its contribution to establishing the truth, promoting reconciliation and because of Momir Nikolic’s acceptance of his individual criminal responsibility for his role in the crime of persecutions”.⁹² In its view it contributed to establishing a historical record of the fall of Srebrenica and will hopefully provide some form of closure for the victims.⁹³

The Trial Chamber considered Momir Nikolic’s guilty plea as a mitigating factor because it spared witnesses from being required to come and testify about painful and traumatic events.⁹⁴

Finally, the Trial Chamber took note of the fact that other accused have been given credit for pleading guilty before the start of trial or at an early stage of the trial because of the savings of Tribunal resources. However, the Trial Chamber allocated little weight to this aspect of the benefits of a guilty plea.⁹⁵

Cooperation with the Prosecution

The Trial Chamber noted particularly the information given by Nikolic regarding new mass graves and the closure which may now come to the surviving family members and friends. It assessed the value of Momir Nikolic’s co-operation, noting his testimony in the Blagojevic⁹⁶ case, as well as how forthcoming the information was. It found that his testimony was at times “evasive”⁹⁷ and not as detailed as it could have been. Further, the Trial Chamber took into consideration, in its overall evaluation, Tab “B” to the Amended Plea Agreement, in which Momir Nikolic admitted that he previously made false statements, as “an indicator of the character and a certain lack of candour” on his part.⁹⁸

Other mitigating circumstances

The Trial Chamber took into account the character of the Accused prior to the war as a mitigating factor.⁹⁹ It decided that the submission that Nikolic would have surrendered voluntarily had he known of his impending arrest was not a factor to be taken into consideration.¹⁰⁰ It did not accord significant weight to Nikolic’s comportment in the United Nations Detention Unit¹⁰¹ or his expression of remorse.¹⁰² It recalled the Appeals Chamber finding in the Kunarac Appeal Judgement¹⁰³, noted the family circumstances of Momir Nikolic, and found it could not be given significant weight in a case of this gravity.¹⁰⁴

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1. Momir Nikolic, IT-02-56-I, Indictment (“Initial Indictment”), 26 March 2002.
2. Initial Indictment, para. 17.
3. Initial Indictment, paras. 21-43.
4. Blagojevic et al., IT-02-53-PT.
5. Momir Nikolic, IT-02-56-PT, Decision on Prosecution’s Motion for Joinder, 17 May 2002.
6. Blagojevic et al., IT-02-60-PT, Amended Joinder Indictment (“Indictment”), 27 May 2002.
7. Blagojevic et. al., IT-02-60-PT, Plea Hearing (“Plea Hearing”), 6 May 2003, Transcripts (“T.”) 287.
8. Plea Hearing, 7 May 2003, T. 294.
9. Blagojevic et al., IT-02-60-PT, Prosecution’s Motion to Dismiss Charges Against Accused Momir Nikolic, 8 May 2003.
10. Decision on Motion to Dismiss Charges Against Accused Momir Nikolic, 12 May 2003.
11. Blagojevic et al., IT-02-60-PT, Separation of Proceedings and Scheduling Order, 9 May 2003.
12. Momir Nikolic, IT-02-60/1-S, Sentencing Judgement, (“Sentencing Judgement”), 2 December 2003, para. 174.
13. Ibid., para. 176.
14. Ibid., para. 180.
15. Momir Nikolic pursuant to Rule 101 (C) is entitled to the credit for the time served since his arrest (610 days).
16. Momir Nikolic filed his Notice of Appeal, 30 December 2003.
17. Amended Plea Agreement, para. 3.
18. Ibid., para. 6.
19. Momir Nikolic understood and agreed that the armed conflict alleged in paragraph 15 of the Indictment is the armed conflict that began on 6 April 1992 and ended with the Dayton Peace Agreement signed on 14 December 1995.
20. Momir Nikolic understood and agreed that the widespread or systematic attack on the civilian population of Srebrenica, as alleged in paragraph 17 of the Indictment and described in paragraphs 18 to 26 of the Indictment, includes the five modes listed in paragraph 59 of the Indictment.
21. Momir Nikolic understood and agreed that one of the reasons he committed the conduct described in the Indictment and in the Amended Plea Agreement was because the victims were Bosnian Muslims.
22. Momir Nikolic understood and agreed that he was aware of the widespread or systematic abuses described in the Indictment and in the Amended Plea Agreement and of their effect on the entire population of Bosnian Muslims from the Srebrenica enclave.
23. Amended Plea Agreement, para. 9.
24. Ibid., para. 14.
25. Ibid., para. 17.
26. Ibid., para. 4.
27. Ibid., para. 4(b).
28. Ibid., paras. 13, 19 and 21, Plea Hearing, 7 May 2003, T. 292-93.
29. Plea Hearing, 7 May 2003, T. 292-94. The Trial Chamber inquired specifically whether Momir Nikolic understood the consequences of pleading guilty to crimes against humanity (Persecutions) as part of ensuring that the guilty plea was informed. Nikolic responded that the consequences of his pleading guilty were explained to him.
30. Ibid., 7 May 2003, T. 293.
31. The “Statement of Facts and Acceptance of Responsibility” is attached to the Judgement as Annex B. The full text and the summary of the Judgement may be obtained from the Tribunal’s Press Information Services and/or its Internet site at the following address: www.un.org/icty (“Judgements” page).
32. Rule 62 bis (Guilty Pleas) If an accused pleads guilty in accordance with Rule 62(vi), or requests to change his or her plea to guilty and the Trial Chamber is satisfied that:
(i) the guilty plea has been made voluntarily;
(ii) the guilty plea is informed;
(iii) the guilty plea is not equivocal; and
(iv) there is sufficient factual basis for the crime and the accused’s participation in it, either on the basis of independent indica or on lack of any material disagreement between the parties about the facts of the case, the Trial Chamber may enter a finding of guilt and instruct the Registrar to set a date for the sentencing hearing.
33. Plea Hearing, 7 May 2003, T. 294.
34. Indictment, para. 25.
35. Forces of the Army of the Serbian Republic of Bosnia and Herzegovina/Republika Srpska (footnote added).
36. Indictment, para. 26.
37. Ibid., para. 59.
38. Fourteenth Plenary Session of 20 October and 12 November 1997, IT/32/Rev.12. Rule 62 bis has subsequently been amended at four Plenary Sessions, most recently at the Twenty-fifth Plenary Session of 13 December 2001, IT/32/Rev.22
39. Rule 62 ter (Plea Agreement Procedure)
(A) The Prosecutor and the defence may agree that, upon the accused entering a plea of guilty to the indictment or to one or more counts of the indictment, the Prosecutor shall do one or more of the following before the Trial Chamber:
(i) apply to amend the indictment accordingly;
(ii) submit that a specific sentence or sentencing range is appropriate;
(iii) not oppose a request by the accused for a particular sentence or sentencing range.
(B) The Trial Chamber shall not be bound by any agreement specified in paragraph (A).
(C) If a plea agreement has been reached by the parties, the Trial Chamber shall require the disclosure of the agreement in open session or, on a showing of good cause, in closed session, at the time the accused pleads guilty in accordance with Rule 62 (vi), or requests to change his or her plea to guilty.
40. Erdemovic, IT-96-22, first guilty plea on 31 may 1996, second guilty plea on 14 January 1998, 5 years imprisonment; Goran Jelisic, IT-95-10, guilty plea on 29 October 1998, 40 years imprisonment; Stevan Todorovic, IT-95-9/1, guilty plea on 13 December 2000, 10 years imprisonment; Dusko Sikirica, IT-95-8, guilty plea on 19 September 2001, 15 years imprisonment; Damir Dosen, IT-95-8, guilty plea on 19 September 2001, 5 years imprisonment and Dragan Kolundzija, IT-95-8, guilty plea on 4 September 2001, 3 years imprisonment. The Trial Chamber noted that the terms of these agreements varied greatly, and that in the case of both Erdemovic and Jelisic, the first guilty plea appears to have preceded any plea negotiations between the parties. There are 10 other accused who have pleaded guilty: Milan Simic, IT-95-9/2, guilty plea on 15 May 2002, 5 years imprisonment; Biljana Plavsic, IT-00-39&40, guilty plea on 2 October 2002, 11 years imprisonment; Momir Nikolic, IT-02-60/1, guilty plea on 7 May 2003, 27 years imprisonment; Dragan Obrenovic, IT-02-60/2, guilty plea on 21 May 2003, 17 years imprisonment; Predrag Banovic, IT-02-65, guilty plea on 26 June 2003, 8 years imprisonment; Darko Mrda, IT-02-59, guilty plea on 24 July 2003; Miodrag Jokic, IT-01-42, guilty plea on 27 August 2003; Dragan Nikolic, IT-94-02, guilty plea on 4 September 2003, 23 years imprisonment; Miroslav Deronjic, IT-02-61, guilty plea on 30 September 2003 and Ranko Cesic, IT-95-10/1, guilty plea on 8 October 2003.
41. Sentencing Judgement, para. 46.
42. There is not always a plea agreement with every guilty plea.
43. Sentencing Judgement, para. 48.
44. Ibid., footnote 89.
45. Ibid., para. 49.
46. Ibid. See Erdemovic, IT-96-22-A, Appeal Judgement, 7 October 1997, Joint Separate Opinion of Judge McDonald and Judge Vohrah, para. 7, which reads, in part: “[t]he institution of the guilty plea, though securing administrative efficiency, must not in any way prejudice the [accused’s] rights as provided for in Article 20, paragraph 1, of the Statute”.
47. Ibid., para. 54.
48. Ibid., para. 49.
49. Ibid., para. 57.
50. Ibid.
51. S.C. Res. 808, U.N. SCOR, 48th Sess., 3175th mtg., U.N. Doc. S/RES/808 (22 February 1993) and S.C. Res. 827, U.N. SCOR, 48th Sess., 3217th mtg., U.N. Doc. S/RES/827 (25 May 1993).
52. Sentencing Judgement, paras. 59-60.
53. Ibid., para. 61.
54. Ibid.
55. Ibid., para. 62.
56. Ibid., para. 63.
57. Ibid.
58. For a critique of the use of plea bargaining, see, Albert W. Alshuler, “Implementing the Criminal Defendant’s Right to Trial: An Alternative to the Plea Bargaining System,” University of Chicago Law Review, Vol. 50 (Summer 1983), pp. 931, 932, “In contested cases, [plea bargaining] substitutes a regime of split-the-difference for a judicial determination of guilt or innocence and elevates a concept of partial guilt above the requirement that criminal responsibility be established beyond a reasonable doubt”. (Sentencing Judgement, footnote. 111)
59. Ibid., para. 65.
60. Ibid.
61. Ibid.
62. Ibid.
63. Ibid.
64. Article 21(1) of the Statute of the Tribunal: “All persons shall be equal before the International Tribunal.”
65. Sentencing Judgement, para. 66.
66. Ibid., para. 67. Erdemovic, IT-96-22-A, Appeal Judgement (“Erdemovic Appeal Judgement”), 7 October 1997, Joint Separate Opinion of Judge McDonald and Judge Vohrah, para. 2.
67. Ibid., footnote. 120. “In relation to the status of victims, the Trial Chamber notes that while certain of those victims who were to have been called to testify may benefit from the guilty plea, other victims may find that the use of plea agreements is not preferable to a full, public trial”.
68. Prosecutor v. Slobodan Milosevic, Case No. IT-02-54-A73.4, Dissenting Opinion of Judge David Hunt on Admissibility of Evidence in Chief in the Form of Written Statements, 21 October 2003, paras 21-22, Judicial Supplement No. 44.
69. Sentencing Judgement, para. 67. (emphasis by the Trial Chamber)
70. Ibid., para. 57 and footnote 101. Erdemovic Appeal Judgement, Separate and Dissenting Opinion of Judge Cassese, para. 8.
71. Ibid., para. 72.
72. Ibid., para. 73.
73. Ibid., para. 75.
74. Ibid., para. 76.
75. Ibid.
76. Ibid., para. 82.
77. Aleksovski, IT-95-14/1-A, Appeal Judgement (“Aleksovski Appeal Judgement”), 24 March 2000, para. 185, Judicial Supplement No. 13.
78. Sentencing Judgement, para. 86 and footnote 126. Aleksovski Appeal Judgement, para. 185.
79. Ibid., para. 87.
80. Ibid., para. 86.
81. Ibid., para. 91.
82. Ibid., para. 93.
83. Ibid.
84. Ibid., para. 105.
85. Ibid.
86. Ibid., para. 123.
87. Ibid., para. 124 and footnote 195. The Trial Chamber recalled the finding of the Appeals Chamber in para. 96 of the Jelisic Appeal Judgement (IT-95-10-A, 5 July 2001, Judicial Supplement No. 26): “The Appeals Chamber agrees that a sentence should not be capricious or excessive, and that, in principle, it may be thought to be capricious or excessive if it is out of reasonable proportion with a line of sentences passed in similar circumstances for the same offences.” The Trial Chamber selected the following examples because of the similarity of offence or gravity: Milomir Stakic was sentenced to life imprisonment for crimes including persecutions; Radislav Krstic was sentenced to 46 years imprisonment, for crimes including that of persecutions (the conviction also included the charge of genocide although the underlying factual basis is similar to that of this case); Tihomir Blaskic was sentenced to 45 years imprisonment, for crimes including that of persecutions; Goran Jelisic was sentenced to 40 years (though the convictions were for offences other than persecutions); Dragoljub Kunarac was sentenced to 28 years (though the convictions were for offences other than persecutions); Dario Kordic was sentenced to 25 years for crimes including persecutions; Zoran Zigic was sentenced to 25 years for crimes including persecutions; Mladjo Radic was sentenced to 20 years for crimes including persecutions; Mitar Vasiljevic was sentenced to 20 years imprisonment, for crimes including that of persecution; and Vladimir Santic was sentenced to 18 years for crimes including persecutions. The Trial Chamber recognised that many of these persons were convicted for crimes in addition to persecutions as a crime against humanity.
88. Ibid., para. 135.
89. Ibid.
90. Ibid., para. 136.
91. Ibid., para. 137.
92. Ibid., para. 149.
93. See Plavsic, IT-00-39&40/1-S, Sentencing Judgement, 27 February 2003, paras. 75-77, Judicial Supplement No. 40. Dr. Alex Boraine, an expert on reconciliation and accountability issues and the former Deputy Chairperson on the Truth and Reconciliation Commission in South Africa, gave testimony on the importance of the acknowledgement and acceptance of responsibility for grave crimes on the process of reconciliation.
94. Sentencing Judgement, para.150.
95. See above under “Appropriateness of Guilty Pleas”.
96. Blagojevic, IT- 02-60-T, Trial
97. Sentencing Judgement, para. 156.
98. Ibid.
99. Ibid., para. 164.
100. Ibid., para. 166.
101. Ibid., para. 168.
102. Ibid., para. 161.
103. Kunarac, IT-96-23/1-A, Appeal Judgement, 12 June 2002, para. 362, Judicial Supplement No. 34. The Appeals Chamber held that “family concerns should in principle be a mitigating factor”.
104. Furundzija, IT-95-17/1-T, Trial Judgement, 10 December 1998, para. 284, Judicial Supplement No. 1.