1 - See transcript page number (“T.”) 5100 of Babic’s testimony in the case Prosecutor v. Slobodan Milosevic, Case No. IT-02-53-T (“Milosevic case” or “Milosevic proceedings”) attached to the Prosecution Sentencing Brief as Annex V and admitted into evidence in this case on 2 April 2004. See also paragraphs 7 and 18 of the Croatia Indictment which mention Babic as a participant in a joint criminal enterprise in Croatia.
2 - The list of documents admitted through Babic in the Milosevic case and the list of documents used during Babic’s interviews as a suspect were admitted into evidence on 2 April 2004 (exhibit numbers PS-6a and PS-7 respectively).
3 - The indictment against Babic (hereinafter, “Indictment”) was confirmed by Judge Antonetti; see Order for Review of Indictment, 17 November 2003, and Order for Service of Indictment, 17 November 2003.
4 - The Indictment was served on Babic upon his surrender to the Tribunal on 26 November 2003. The same day, Judge Meron, president of the Tribunal, assigned the case to Trial Chamber I, composed of Judges Liu, El Mahdi, and Orie; see Order Assigning a Case to a Trial Chamber, 26 November 2003.
5 - On 26 November 2003, Judge Liu, presiding judge of Trial Chamber I, appointed Judge El Mahdi as pre-trial judge in accordance with Rule 65 of the Rules of Procedure and Evidence; see Order Designating a Pre-trial Judge, 26 November 2003.
6 - See T. 29-30.
7 - The Plea Agreement is set out in Annex A of the “Amendment to the Joint Motion for Consideration of Plea Agreement between Milan Babic and the Office of the Prosecutor Pursuant to Rule 62ter”, filed on 22 January 2004. Also on that day President Meron assigned Judge Canivell to replace Judge Liu Daqun in the present case. The UN Secretary-General had appointed Judge Canivell as an ad litem judge in this case on 20 January 2004; see Order Replacing a Judge in a Case before a Trial Chamber, 22 January 2004.
8 - Plea Agreement, paras 2, 3.
9 - Tab 1 of “Amendment to the Joint Motion for Consideration of Plea Agreement between Milan Babic and the Office of the Prosecutor Pursuant to Rule 62Ter” of 22 January 2004, para. 29; Indictment, para. 5.
10 - Plea Agreement, para. 4.
11 - T. 54-55.
12 - Under Rule 62bis a Trial Chamber may accept a plea of guilty entered by an accused if it is satisfied that the plea has been made voluntarily, is informed, unequivocal, and substantiated by a sufficient factual basis for the crimes charged and the accused person’s participation therein. See also Erdemovic Appeal Judgement, separate opinion of Judges McDonald and Vohrah, para. 8.
13 - See the supplementary material filed jointly by the parties pertaining to Babic’s public speeches at the time relevant to the Indictment and the expert report on propaganda and the consequences of the use of the media for ultra-nationalist ends; “Joint Prosecution and Defence Motion on Additional Documentation on Propaganda and Speeches by the accused Babic”, 28 January 2004.
14 - T. 61; the Prosecution filed a “Motion to Dismiss Counts 2 to 5” of the Indictment on 29 January 2004 to the same effect.
15 - The Trial Chamber heard Dr Mladen Lon~ar, an expert witness called by both parties to give his opinion about the impact of crimes upon victims (see the expert report of Dr Lon~ar including his c.v. admitted under exhibit number PS-8), and Drago Kova~evic, a witness who testified about Babic’s personality and positions at the time of the commission of the crimes. In addition, upon the request of the Defence, the Trial Chamber admitted witness statements into evidence; see “Decision on Defence Motion for Admission of Witness Statements and to Call Witnesses”, 29 March 2004. In total, eight Prosecution exhibits were admitted into evidence.
16 - Indictment, paras 13-14.
17 - Indictment, para. 14.
18 - Indictment, para. 15.
19 - See Factual Statement, para. 5.
20 - Factual Statement, para. 3.
21 - Factual Statement, para. 4.
22 - Factual Statement, para. 5.
23 - Factual Statement, para. 21; Defence Sentencing Brief, para. 8.
24 - Factual Statement, para. 5.
25 - Factual Statement, para. 5.
26 - Babic held this position until 15 February 1992.
27 - Factual Statement, para. 21; Defence Sentencing Brief, para. 8.
28 - After the death of Jovan Raskovic in 1992, Babic assumed the position of President of the SDS party in Krajina; Factual Statement, para. 4.
29 - Factual Statement, para. 5.
30 - Factual Statement, para. 33a.
31 - Factual Statement, para. 33b.
32 - Article 116 of the 1982 Yugoslav All People’s Defence Law reads: “Units and institutions of the Yugoslav People’s Army and units and institutions of the Territorial Defence engaging in a joint combat operation shall be subordinate to the officer in charge of carrying out the operation.” Further, the 1983 Secretary for National Defence manual on “Strategy of Armed Conflict” provided additional information on command and control arrangements between the JNA and the TO during operations in chapter 4, specifying that, in general, the commander of a Yugoslav People's Army unit commands at the front, whereas the commander of staff or unit commands in a temporarily occupied (or possessed) territory, unless otherwise provided for by the plan of a special order. Copies of the specific provisions are attached to the Prosecution Sentencing Brief as Annex VI.
33 - Factual Statement, para. 33c.
34 - Factual Statement, paras 33d, 14-16.
35 - Factual Statement, para. 33e.
36 - Factual Statement, para. 33g.
37 - The methods employed by those controlling the media and its use for ultra-nationalist goals can be seen from the expert report of Dr Renaud De la Brosse, filed as a joint Prosecution and Defence Motion on 28 January 2004; see also T. 5114-13 (Annex V of the Prosecution Sentencing Brief).
38 - Factual Statement, para. 6. Peter Galbraith, the former US Ambassador to Croatia who testified in the Milosevic case, stated that when he first met Babic in the beginning of 1995 in connection with the Z-4 peace-plan negotiations, he considered Babic a nationalist who participated in the creation of the RSK and the “expulsion of the Croatian population” but who within the RSK leadership had the interests of the Krajina Serb population the most at heart; T. 5062-61 of the transcript of Galbraith’s testimony attached to the Prosecution Sentencing Brief as Annex VII.
39 - Factual Statement, paras 3, 9, 11, 33f.
40 - Factual Statement, para. 33h.
41 - According to Galbraith, Babic was more open to co-habitation between Serbs and Croats, was easily intimidated by both Martic and Milosevic, and had no control of the army; see T. 5062-61, transcript of Galbraith’s testimony in Annex VII of the Prosecution Sentencing Brief. See also Prosecution Sentencing Brief, para. 28.
42 - Factual Statement, para. 30.
43 - Factual Statement, para. 34.
44 - Indictment, para. 15; Plea Agreement, para. 2; Factual Statement, para. 34; T. 47-50; reiterated during the sentencing hearing at T. 175: “what Mr. Babic did not deny is that he knew that ethnic cleansing was going on and people were killed. What Mr. Babic denied was that he knew about the murders charged.” See confirmation by the Defence on T. 176, and also T. 178-179, 180.
45 - Factual Statement, para. 34; Babic, T. 13017-19; interview of Babic on 23 February 2002, video-tape 9 of 13, pp. 4-6 (L009-2098-L009-2100). All quotes (trial and interview), which originate from Babic are attached to the Prosecution Sentencing Brief as Annex V.
46 - Article 5(h) of the Statute states, in relevant part: “The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population:... (h) persecutions on political, racial and religious grounds.”
47 - Factual Statement, para. 34; see also the Indictment.
48 - See Tadic Appeal Judgement, paras 194, 220.
49 - Factual Statement, para. 28.
50 - On 19 December 1991 the SAO Krajina proclaimed itself the RSK. On 26 February 1992 the SAO Western Slavonia and the SAO Slavonia, Baranja, and Western Srem joined the RSK.
51 - Factual Statement, para. 29.
52 - Factual Statement, paras 28, 34.
53 - Factual Statement, paras 29, 34.
54 - Factual Statement, para. 34.
55 - Factual Statement, para. 34.
56 - T. 176; Factual Statement, para. 34.
57 - Tadic Appeal Judgement, para. 220.
58 - Prosecution Sentencing Brief, para. 62.
59 - Defence Sentencing Brief, paras 23 et seq.
60 - Article 23 of the Statute states in pertinent part that: “1. The Trial Chambers shall pronounce judgements and impose sentences and penalties on persons convicted of serious violations of international humanitarian la.”
61 - Article 24 of the Statute states: “1. The penalty imposed by the Trial Chamber shall be limited to imprisonment. In determining the terms of imprisonment, the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia. 2. In imposing the sentences, the Trial Chambers should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person. 3. In addition to imprisonment, the Trial Chambers may order the return of any property and proceeds acquired by criminal conduct, including by means of duress, to their rightful owners”.
62 - Rule 87 (C) of the Rules of Procedure and Evidence states: “If the Trial Chamber finds the accused guilty on one or more of the charges contained in the indictment, it shall impose a sentence in respect of each finding of guilt and indicate whether such sentences shall be served consecutively or concurrently, unless it decides to exercise its power to impose a single sentence reflecting the totality of the criminal conduct of the accused.”
63 - Which reads:
“(A) A convicted person may be sentenced to imprisonment for a term up to and including the remainder of the convicted person’s life.
(B) In determining the sentence, the Trial Chamber shall take into account the factors mentioned in Article 24, paragraph 2, of the Statute, as well as such factors as:
(i) any aggravating circumstances;
(ii) any mitigating circumstances, including substantial cooperation with the Prosecutor by the convicted person before or after conviction;
(iii) the general practice regarding prison sentences in the courts of the former Yugoslavia;
(iv) the extent to which any penalty imposed by a court of any State on the convicted person for the same act has already been served, as referred to in Article 10, paragraph 3, of the Statute.
(C) Credit shall be given to the convicted person for the period, if any, during which the convicted person was detained in custody pending surrender to the Tribunal or pending trial or appeal.”
64 - These provisions specify the nature of the penalty a Trial Chamber may impose (imprisonment), the factors to be taken into consideration in determining the sentence, and the manner in which a sentence should be imposed (whether a single sentence or multiple sentences).
65 - Aleksovski Appeal Judgement, para. 185.
66 - Cesic Sentencing Judgement, para. 23; Jokic Sentencing Judgement, para. 31; Mrdja Sentencing Judgement, para. 14.
67 - Todorovic Sentencing Judgement, para. 30.
68 - Aleksovski Appeal Judgment, para. 185; Celebici Appeal Judgement, para. 806; Tadic Sentencing Appeal Judgement, para. 48.
69 - Tadic Sentencing Appeal Judgement, para. 48; Cesic Sentencing Judgement, paras 25-26; Jokic Sentencing Judgement, paras 31, 34; Mrdja Sentencing Judgement, paras 16-17.
70 - Nikolic Sentencing Judgement, para. 93.
71 - Cesic Sentencing Judgement, paras 27-28; Jokic Sentencing Judgement, paras 35-36; Mrdja Sentencing Judgement, paras 18-19.
72 - Kvocka Trial Judgement, para. 701, citing the Trial Chamber in the Celebici case which stated that the gravity of the offence was “By far the most important consideration, which may be regarded as the litmus test for the appropriate sentence”, Celebici Trial Judgement, para. 1225.
73 - Kvocka Trial Judgement, para. 701, citing the Celebici Trial Judgement, para. 1226; Erdemovic Appeals Sentencing Judgement, para. 15; Kambanda Sentencing Judgement, para. 42; Kayishema Trial Judgement, para. 26; Kordic Trial Judgement, para. 852.
74 - Plavsic Sentencing Judgment, para. 84.
75 - Kunarac Trial Judgement, para. 868;
76 - As will be recalled below, the Trial Chamber bears in mind that: “The same elements should not be reviewed a first time as a constitutive element of the crime and a second time as an aggravating circumstance”, Krstic Trial Judgement, para. 707.
77 - Celebici Appeal Judgement, para. 763.
78 - Article 41(1) of the Criminal Code of the SFRY (adopted on 28 September 1976, entered into force on 1 July 1977) states (in translation): “The court shall determine the sentence for the perpetrator of a given crime within the limits prescribed by the law for this crime, bearing in mind the purpose of the punishment and taking into account all the circumstances that could lead to this sentence being more or less severe, in particular: the degree of criminal responsibility, the motives of the crime, the degree of the threat or damage to protected property, the circumstances under which the crime was committed, the background of the perpetrator, his personal circumstances and behaviour after the commission of the crime as well as other circumstances which relate to the character of the perpetrator.”
79 - See Chapter XVI of the Criminal Code of the former Yugoslavia ("Crimes Against Humanity and International Law”). Articles 141 and 142(1) dealt with the crimes of genocide and other war crimes committed against civilians. See also Articles 142-156 and Articles 38 ("Imprisonment"), 41 ("Sentences"), and 48 ("Coincidence of several offences”). Crimes against peace and international law, including the crime of genocide and war crimes against a civilian population, were punishable by a sentence of 5 to 15 years of imprisonment, by the death penalty, or by 20 years of imprisonment if a prison sentence was substituted for the death penalty.
80 - Kordic Trial Judgement, para. 849; see also Defence Sentencing Brief, para. 30.
81 - Tadic Appeals Sentencing Judgement, para. 21; Defence Sentencing Brief, para. 26.
82 - Babic’s interview on 23 February 2002, video-tape 9 at pp. 4-6 (L009-2098-L009-2100).
83 - See lists of victims in annexes to the Indictment. See also the SAO Krajina map produced by Babic as Exhibit 326. Tab 11 in the Milosevic proceedings shows that the SAO Krajina comprised of territories in Northern Dalmatia and Lika, including the municipalities of Knin, Benkovac, Gracac, Donji Lapac, Obrovac, Korenica, and Vojnic, and of localities which declared themselves as belonging to any of the above municipalities on account of their Serb-majority status.
84 - See witness statements admitted on 29 March 2004, and 92 bis statements admitted during the Milosevic proceedings and also admitted into evidence in this case.
85 - The Prosecution provided as Annex II to its Sentencing Brief a map depicting the locations mentioned in these statements.
86 - A brief summary of each statement is included in Annex I of the Prosecution Sentencing Brief.
87 - T. 88-123.
88 - Prosecution Sentencing Brief, para. 30.
89 - Prosecution Sentencing Brief, para. 33.
90 - Defence Sentencing Brief, para. 46.
91 - Defence Sentencing Brief, para. 48.
92 - Defence Sentencing Brief, para. 48.
93 - Krstic Trial Judgement, para. 707.
94 - Krstic Trial Judgement, para. 708; Galic Trial Judgement, para 765.
95 - Krstic Trial Judgement, para. 709.
96 - Kordic Trial Judgement, para. 853.
97 - Mrdja Sentencing Judgement, para. 52.
98 - Factual statement para. 31.
99 - See above, para. 24(h).
100 - See above, para. 24(g).
101 - Prosecution Sentencing Brief, para. 35; Defence Sentencing Brief, paras 50 et seq.
102 - Defence Sentencing Brief, paras 65-72.
103 - Prosecution Sentencing Brief, para. 35. The Prosecution does not elaborate on Babic’s “continuous contribution to reconciliation” in a separate section but treats it as the effect of his cooperation and admission of guilt.
104 - Defence Sentencing Brief, para. 51.
105 - Defence Sentencing Brief, para. 51, quoting Babic’s testimony during the Milosevic trial (18 November 2002, p. 6). This part of the testimony was given in private session. In reproducing the passage publicly here, the Trial Chamber takes account of the fact that the quotation was included by Babic’s Defence counsel in a public document and that its content does not raise any protection issues.
106 - Defence Sentencing Brief, para. 53.
107 - Prosecution Sentencing Brief, para. 47. The Prosecution gives the example of Dragan Nikolic, the warden at Susica camp, who only pleaded guilty after three years of detention and just prior of hearing the testimonies of six deposition witnesses (Dragan Nikolic Sentencing Judgement, para. 234.). Although the judgement states that the “lateness” of his guilty plea ought not to be considered as being to his detriment, the Prosecution contends that in fact this illustrates the major difference between the average accused before this Tribunal and Babic; Prosecution Sentencing Brief, footnote 47.
108 - Erdemovic Sentencing Judgement II, p. 16; Jelisic Appeal Judgement, 5 July 2001; Kambanda Appeal Judgement, para. 120.
109 - Todorovic Sentencing Judgement, paras 80-81; Plavsic Sentencing Judgement, para. 66.
110 - Todorovic Sentencing Judgement, para. 81.
111 - Todorovic Sentencing Judgement, para. 81.
112 - Erdemovic Sentencing Judgement II, para. 21.
113 - S/PV. 4161, para. 3, quoted in Prosecution Sentencing Brief, para. 50.
114 - See Tadic Jurisdiction Decision, p. 72.
115 - S/PV. 3217, para. 12, quoted in Prosecution Sentencing Brief, para. 51.
116 - U.N. General Assembly resolution A/RES/51/203 88th plenary meeting 17 December 1996.
117 - See quotes attached to the Prosecution Sentencing Brief, Annex V (T. 12861, 13418-9).
118 - See pp. 16-18 in the English version of his report in Annex IV to the Prosecution Sentencing Brief. On p. 17 he stated in reference to the guilty plea that “This is a step towards healing, towards forgetting the past and turning to the future. Admission of guilt and remorse alone cannot restore unity and friendship, but it helps victims overcome the greyness of their past.” He went on to say that Babic’s confession “expresses the truth which so many victims have 'silently' been saying for all these years”.
119 - Babic’s interview on 23 February 2002, video-tape 9, pp. 4-6 (L009-2098-L009-2100).
120 - Prosecution Sentencing Brief, paras 37- 46; Defence Sentencing Brief, paras 60-64.
121 - Defence Sentencing Brief, paras 62-64.
122 - As mentioned above, these interviews took place in November 2001, January 2002, February 2002, and April 2002; Defence Sentencing Brief, para. 62.
123 - The Prosecution attached as Annex VII to its Sentencing Brief two schedules which show the amount of documentation provided and authenticated by Babic.
124 - Prosecution Sentencing Brief, para. 42.
125 - Prosecution Sentencing Brief, para. 43.
126 - Prosecution Sentencing Brief, para. 44.
127 - Prosecution Sentencing Brief, para. 45.
128 - Prosecution Sentencing Brief, para. 46. The Prosecution added that Babic “appeared for his initial appearance voluntarily pursuant to a court order, thereby demonstrating his unconditional acceptance of, and respect for, this Tribunal and its decisions” (ibid.).
129 - Prosecution Sentencing Brief, para. 39.
130 - Prosecution Sentencing Brief, para. 33.
131 - Prosecution Sentencing Brief, para. 36.
132 - See T. 225, 239, 243.
133 - Prosecution Sentencing Brief, para. 36.
134 - Prosecution Sentencing Brief, para. 55.
135 - Defence Sentencing Brief, para. 57.
136 - Prosecution Sentencing Brief, para. 55.
137 - Babic’s interview on 23 February 2002, video-tape 9, pp 4-6 (L009-2098-L009-2100).
138 - See, T. 57.
139 - See, T. 57-58.
140 - Defence Sentencing Brief, paras 58-59.
141 - Prosecution Sentencing Brief, para. 35.
142 - Defence Sentencing Brief, para. 69.
143 - Defence Sentencing Brief, paras 70-72.
144 - Prosecution Sentencing Brief, para. 57.
145 - Prosecution Sentencing Brief, para. 57.
146 - Cf. Cesic Sentencing Judgment, paras 77-85, and Jokic Sentencing Judgment, paras 101-102.
147 - Defence Sentencing Brief, para. 65.
148 - Plavsic Sentencing Judgement, para. 85.
149 - Jokic Sentencing Judgement, paras 89-92.