Page 250

1 Tuesday, 29 June 2004

2 [Sentencing Judgement]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 11.03 a.m.

6 JUDGE ORIE: Madam Registrar, would you please call the case.

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

8 IT-03-72-S, the Prosecutor versus Milan Babic.

9 JUDGE ORIE: Thank you, Madam Registrar. Good morning to

10 everyone. May I have the appearances. Prosecution first, please.

11 MR. UERTZ-RETZLAFF: Good morning, Your Honour. For the

12 Prosecution, Alex Whiting and my name is Hildegard Uertz-Retzlaff.

13 JUDGE ORIE: Thank you. And for the Defence.

14 MR. MUELLER: Good morning, Your Honour. Peter Michael Mueller

15 for the Defence.

16 JUDGE ORIE: Good morning, Mr. Babic, can you hear me and everyone

17 else who speaks in a language you understand?

18 THE ACCUSED: [Interpretation] Yes, I do, Your Honour.

19 JUDGE ORIE: Thank you, Mr. Babic.

20 The Trial Chamber is sitting today to deliver the sentencing

21 judgement in the case of Milan Babic. What follows is a summary of the

22 written judgement and does not form part of it. The written judgement

23 will be made available to the parties and to the public at the end of this

24 session.

25 I will now briefly set out the context and the facts of the case

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1 as well as the factors which the Trial Chamber considered in imposing the

2 sentence.

3 The procedural background: Milan Babic was born in 1956 in Kukar

4 in Croatia. He is married with two children and is a dentist by

5 profession. In October 2001, Babic initiated contact with this Tribunal

6 after learning that he had been named as a co-perpetrator in the Croatian

7 indictment issued in the case of Slobodan Milosevic in September 2001.

8 Babic agreed to be interviewed by the Prosecution and to testify in the

9 Milosevic case.

10 An indictment against Babic was confirmed in November 2003. The

11 indictment charged him with persecution, murder, cruel treatment, wanton

12 destruction of villages or devastation not justified by military

13 necessity, and destruction not justified by military necessity and

14 destruction of willful damage to institutions dedicated to education or

15 religion. The charges were based on events which took place in Croatian

16 Krajina from August 1991 to February 1992.

17 In November 2003, Babic surrendered to the Tribunal. Two months

18 later he filed a plea agreement jointly with the Prosecution. According

19 to this agreement, Babic would admit to having aided and abetted the crime

20 of persecutions, committed by a joint criminal enterprise, as charged in

21 count 1 of the indictment. The goal of the joint criminal enterprise was

22 the forcible permanent removal of Croat and other non-Serb populations

23 from approximately one-third of Croatia, in order to transform the

24 acquired territory into a Serb-dominated state through the commissions of

25 crimes within the jurisdiction of the Tribunal.

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1 In exchange for Babic's guilty plea and his ongoing cooperation,

2 the Prosecution would recommend that he be given a sentence of no more

3 than 11 years of imprisonment.

4 The plea agreement was modified a few days later when Babic agreed

5 to revise his plea of guilty to that of a co-perpetrator in the

6 aforementioned joint criminal enterprise instead of an aider and abettor.

7 The Prosecution's recommendation of a sentence of no more than 11 years'

8 imprisonment did not change.

9 Babic's plea of guilty to count 1 of the indictment was accepted

10 by the Trial Chamber on 28 January 2004. The remaining counts of the

11 indictment were withdrawn with the leave of the Chamber.

12 I now come to the facts underlying the guilty plea.

13 In the period August 1991 to February 1992, Serb forces attacked

14 and took control of the towns, villages, and settlements in the Krajina

15 region of Croatia. After the takeover, the Serb forces, in cooperation

16 with the local Serb authorities, commenced persecutions to drive the Croat

17 and other non-Serb populations from the region. The persecutions caused

18 the murder or extermination of hundreds of Croat and other non-Serb

19 civilians in Dubica, Cerovljanji, Bacin, Saborsko, Poljanak, Lipovaca, and

20 in other places. It also caused the routine and prolonged imprisonment of

21 hundreds of Croat and other non-Serb civilians in inhumane conditions in

22 the old hospital and the JNA army barracks in Knin, and the deportation or

23 forcible transfer of thousand of Croat and other non-Serb civilians from

24 the Krajina region. There was as well deliberate destruction of homes and

25 other public and private property, including objects of cultural value to

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1 Croat and other non-Serb populations.

2 In December 1991, the Serb authorities proclaimed the territory

3 that had thus come under their control as the "Republic of Serbian

4 Krajina."

5 As for Babic, in February 1990, he had become a prominent

6 political figure in the Serbian Democratic Party (SDS) in Croatia. He

7 held a senior position in the SDS municipal committee in Knin. In July

8 1990, he became President of the Serbian National Council. In February

9 1991, he became to advocate the creation of an independent Serbian state

10 in the so-called Serb Autonomous Region of Krajina. Then in April 1991,

11 Babic was elected the President of the Executive Council of the

12 self-declared region, and in May 1991 became President of its

13 administration or government.

14 That summer, Babic became commander-in-chief of the self-declared

15 region's armed forces. Finally, in December 1991, he became President of

16 the so-called Republic of Serbian Krajina. During the relevant period, he

17 was, in other words, one of the highest-ranking and most influential

18 political Serb leaders in the region.

19 Babic has admitted that from August 1991 to February 1992, he

20 contributed to the persecution of Croat and other non-Serb populations in

21 the following ways:

22 He formulated, promoted, participated in, and encouraged the

23 development and implementation of policies which advanced the objective of

24 the joint criminal enterprise, which was to forcibly and permanently

25 remove the majority of Croat and other non-Serb populations from

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1 approximately one-third of Croatia;

2 He was instrumental in the establishment, support, and maintenance

3 of the bodies that ruled the so-called Serb Autonomous Region of Krajina

4 and that implemented the objective of the joint criminal enterprise;

5 He assisted in the re-organisation and recruitment of the

6 Territorial Defence (TO) forces, that participated in the crimes;

7 He cooperated with the commander of the so-called "Martic Police,"

8 who according to Babic was involved in the commission of crimes;

9 He participated in the provision of financial, material,

10 logistical, and political support for the military takeover of

11 territories;

12 He requested the assistance or facilitated the participation of

13 the JNA army forces in establishing and maintaining control of the

14 territories;

15 He made ethnically inflammatory speeches at public events and in

16 the media, propaganda which helped the unleashing of violence against the

17 Croat population and other non-Serbs;

18 Finally, he encouraged and assisted in the acquisition of arms and

19 their distribution to Serbs to further the campaign of persecutions.

20 Babic admitted that he knowingly and intentionally participated in

21 the campaign of persecutions. He was aware that crimes such as

22 mistreatment in prisons, deportations, forcible transfer, and the

23 destruction of property, as described in the indictment, were being

24 committed.

25 With respect to the murders charged in the indictment, Babic

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1 admitted that he knew that civilians were killed in the course of the

2 forcible removal of non-Serb civilians, and that such killings were the

3 likely outcome of the campaign of persecutions. However, he maintained

4 that he had no knowledge of the specific murders referred to in the

5 indictment.

6 Babic further admitted that the crime of persecution was committed

7 within a joint criminal enterprise, and that he substantially participated

8 in that enterprise as a co-perpetrator.

9 The Trial Chamber has considered the purposes of punishment in

10 light of the mandate of the Tribunal. Retribution, deterrence, and

11 rehabilitation have been considered the most relevant purposes in the

12 context of the Tribunal.

13 The Trial Chamber has given primary consideration to the gravity

14 of Babic's crime, and has also considered Babic's individual

15 circumstances, including aggravating and mitigating circumstances.

16 Babic does not deny the seriousness of the crimes committed.

17 Virtually the whole of the Croat and non46 Serb population was expelled

18 from the region in question by forcible removal or by being caused to flee

19 through fear of imminent attack. More than 200 civilians, including women

20 and elderly persons, were murdered, and several hundred civilians were

21 confined or imprisoned in inhumane conditions. The crime was

22 characterised by ruthlessness and savagery and had a severe impact on the

23 victims and their relatives. Their suffering is still significant.

24 The Trial Chamber is convinced of the extreme gravity of the crime

25 to which Babic pleaded guilty. A participant in a crime of this gravity

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1 should expect a sentence of commensurate severity.

2 In relation to aggravating circumstances, the Prosecution notes

3 that "leadership positions which are similar to the accused position have

4 been found to be an aggravating circumstance." The Defence submits that

5 it would be inappropriate to use Babic's conduct as a political leader to

6 establish both criminal liability and an aggravating circumstance. The

7 Trial Chamber agrees that the same element should not be assessed once as

8 a constitutive element of the crime and a second time as an aggravating

9 circumstance.

10 However, the criminal liability of Babic does not stem from his

11 position as a superior in the hierarchy. The position of a political

12 leader is not required for participation in a joint criminal enterprise,

13 nor is it a precondition for the crime of persecution. Thus, it is not an

14 element establishing criminal liability, and the Trial Chamber has not

15 used it as such.

16 The reasons for holding that Babic's leadership positions should

17 indeed be considered in aggravation of sentence are twofold. First, as a

18 regional political leader, he enlisted resources to further the joint

19 criminal enterprise, and by his speeches and media exposure prepared the

20 ground for the Serb population to accept that their goals were achievable

21 through acts of persecution. Second, Babic's involvement through the

22 positions he held gained momentum over time: By allowing the campaign of

23 persecutions to continue, he amplified its consequences.

24 The Trial Chamber thus finds that the fact that Babic held and

25 remained in high political positions throughout the course of the crime of

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1 persecutions counts as an aggravating circumstance.

2 As for mitigating circumstances, the parties submitted that the

3 following mitigating circumstances apply in this case: Babic's

4 substantial and continued cooperation with the Prosecution; his voluntary

5 appearance before the Tribunal to stand trial; his guilty plea and

6 acceptance of responsibility; and his remorse. The Defence submits, in

7 addition, that Babic's conduct subsequent to the crimes, and his personal

8 and family circumstances, are mitigating circumstances. The Prosecution

9 proposes as additional mitigating circumstances Babic's limited

10 participation in the acts of violence, his continued contribution to

11 reconciliation, and his prior character.

12 In relation to Babic's admission of guilt, the Trial Chamber is

13 satisfied, for the diverse reasons given in the judgement, that it must be

14 considered as an important mitigating factor.

15 Moreover, the Trial Chamber takes account of Babic's extensive

16 cooperation with the Prosecution, at great risk to his family and his own

17 safety.

18 The Trial Chamber also takes into account, in mitigation, Babic's

19 voluntary surrender to the Tribunal.

20 The question of the mitigatory effect of Babic's supposedly

21 limited participation in the crimes charged is moot, because the

22 Trial Chamber does not accept that Babic's role in the joint criminal

23 enterprise was as limited as the parties suggest it was. While true that

24 Babic was not the prime mover of the campaign of persecutions, the

25 Trial Chamber recalls that Babic chose to remain in power and provided

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1 significant support for the persecutions against non-Serb civilians, by

2 amongst other things participating in the provision of financial,

3 material, logistical, and political support necessary for the military

4 takeover of territories in Croatian Krajina, by making ethnically

5 inflammatory speeches, and by encouraging and assisting in the acquisition

6 of arms and their distribution to the forces committing the crimes.

7 On the question of remorse, the Trial Chamber is satisfied that

8 Babic's expression of remorse is sincere and constitutes a mitigating

9 factor.

10 For reasons given in the judgement, Babic's family and personal

11 situations are also given some weight in mitigation.

12 On the other hand, the Trial Chamber does not accept that Babic's

13 character prior to the events in Croatia warrants any mitigation of

14 sentence. The crimes committed during the armed conflict in the former

15 Yugoslavia were mostly carried out by ordinary citizens. There's nothing

16 exceptional about Babic's prior character that would call for special

17 consideration.

18 As for Babic's conduct subsequent to the crime, the Trial Chamber

19 is not satisfied that Babic took measures to, for example, alleviate the

20 suffering of victims. He did indeed cooperate with the Prosecution and

21 admits his responsibility, but these are factors that have already been

22 considered.

23 In conclusion, the Trial Chamber finds that Babic was a regional

24 political leader who sought to promote what he considered the interests of

25 his people to the detriment of Croats and other non-Serbs through the

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1 commissions of serious violations of international humanitarian law. He

2 didn't just fail to stand against injustice, he participated in the joint

3 criminal enterprise. By admitting his guilt in relation to the armed

4 conflict in Krajina in 1991 and 1992, Babic demonstrated some courage.

5 Yet, the Trial Chamber is not convinced that he has at all times

6 recognised the full significance of the role he played in Croatia in that

7 period.

8 The Trial Chamber finds that the recommendation made by the

9 Prosecution of a sentence of imprisonment of no more than 11 years does

10 not achieve the purposes of punishment, nor does it do justice.

11 Mr. Babic, would you please rise.

12 [The accused stands up]

13 JUDGE ORIE: Having considered the arguments and the evidence

14 present by the parties, the Trial Chamber hereby sentences you to 13 years

15 of imprisonment. You are entitled to credit for 211 days served in

16 detention prior to this day. You shall remain in the custody of the

17 Tribunal until such time as arrangements for your transfer to the State in

18 which you will serve your sentence have been finalised.

19 This brings the session to a close.

20 --- Whereupon the hearing adjourned

21 at 11.24 a.m.