Tribunal Criminal Tribunal for the Former Yugoslavia

Page 1626

1 Wednesday, 29 October, 2003

2 [Sentencing Proceedings]

3 [Closed session]

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21 [Open session]

22 JUDGE LIU: At this stage, are there any documents to tender from both

23 parties? Mr. McCloskey?

24 MR. McCLOSKEY: Yes, Mr. President. The witnesses that we had mentioned

25 briefly before that we had attached to our materials regarding 92 bis, that

Page 1640

1 would be PS1 - that was Witness I;- PS2; Mrs. Ibrahimefendic; PS3, which

2 was Witness DD; PS4, Witness L. And I'm told PS3 should be under seal.

3 Also, Mr. President, the -- and I apologise for not dealing with this

4 earlier, but I now understand from the Court's ruling that I should offer

5 into evidence the attachment, the information report that I attached on our

6 supplemental filing relating to Mr. Nikolic's responses to the two issues

7 that were brought up there, Mr. -- regarding Mr.

8 Franken's testimony and -- and the issue related to the boundaries of -- of

9 the Bratunac Brigade. That was not meant to be used against Mr. Nikolic in

10 any way but just to help assist the Court on these issues of cooperation

11 and credibility.

12 Also, as the Court is aware, this -- in reviewing cooperation, the

13 testimony of Mr. Nikolic at the trial of Mr. Blagojevic and Mr. Jokic was

14 fundamental to this agreement, and I would offer at this time that

15 testimony into the record. I -- that -- I'm sorry, I failed to offer that

16 earlier. It just didn't cross my mind, it was so fundamental. But I

17 should have, and I do now.

18 JUDGE LIU: Thank you.

19 Any objections, Mr. Londrovic?

20 MR. LONDROVIC: [Interpretation] Good afternoon, Your Honours. Mr.

21 Nikolic's Defence counsel has no objections to the proposals made by my

22 learned colleague from the Prosecution.

23 JUDGE LIU: Thank you very much.

24 As for the documents PS1 to PS4, I believe during our Status Conference of

25 this case this Trial Chamber has already made a ruling that they admitted

Page 1641

1 into evidence. Well, at this moment, I would like to reiterate our

2 decision made at that time. And frankly speaking, I don't know whether

3 during the pre-trial stage, especially during the Status Conference,

4 whether we could admit anything to the evidence or not. But anyway, they

5 are admitted into evidence.

6 As for the testimony of Mr. Nikolic during another case, I believe that the

7 testimony is relevant to this proceedings and not only in the testimony of

8 -- the testimony not only in the direct examination but also in the cross-

9 examination admitted into the evidence. It is so decided.

10 As for the information report mentioned by the Prosecution, we have some

11 doubts about it because those corrections were concerning with the

12 testimony in other case, and it is a report that was conducted only between

13 Mr. Nikolic and the Prosecution. So in accordance with the usual practice,

14 this report is not admitted into the evidence in this case. But if Mr.

15 Nikolic wants to make some clarifications or wants to make some comments on

16 those information report, please feel free to do so at a later stage.

17 Do you understand, Mr. Nikolic? Thank you. Thank you very --

18 THE ACCUSED: [Interpretation] I understand, Your Honours. I understand

19 what you have said. And for the sake of the truth, with regard to those

20 two issues, I think it would be useful if you allowed me to address you and

21 to provide certain clarifications that I think might be quite important and

22 which will enable you to assess this matter. I think that I could provide

23 you with clarifications with regard to both issues.

24 JUDGE LIU: Well, I hope you could do that at a later stage, because we'll

25 give you an opportunity to make a statement after the closing arguments by

Page 1642

1 your counsel. Is that agreeable to you?

2 THE ACCUSED: [Interpretation] I agree, Your Honours. Whenever you decide,

3 I will be prepared to provide further clarifications.

4 JUDGE LIU: Thank you very much. You may sit down, please.

5 THE ACCUSED: [Interpretation] Thank you.

6 JUDGE LIU: Well, any closing argument?

7 Yes, Mr. McCloskey.

8 MR. McCLOSKEY: Yes, Mr. President. I just have a few words to say. And

9 as you know, since we're here pursuant to a plea agreement and pursuant to

10 Mr. Nikolic's plea, I think this Court knows, as does anyone involved in a

11 criminal justice system, that the victims can never truly find satisfaction

12 or -- or what they need. There's no way that I can speak to the Srebrenica

13 women and tell them that -- that I can give them anything but some justice,

14 some hope that things will be better. Of course, this was true in any

15 system, whether it be a rape victim, a robbery victim, or a murder victim.

16 But having said that, I think that there are positive things that come out

17 of such a plea and such an agreement, and that is why I think the

18 Prosecution's recommendation of 15 to 20 years is fair and just. And I'll

19 just take a few moments this afternoon to explain to you why I think that's

20 true. I don't think the Defence's recommendation is fair or just.

21 First of all, in looking at the -- the bigger picture, I think we know

22 we're not just a domestic court. We -- we're here to not only bring

23 justice to wherever we can for the former Yugoslavia but also

24 reconciliation is important. And I think the broader history of the area

25 and the people look to us in some way for reconciliation as well as

Page 1643

1 justice.

2 And so if I look at the big picture: We have Mr. Nikolic, the first VRS

3 officer to stand up and take responsibility for what was the worst massacre

4 in this war. Now, taking responsibility is a very important step towards

5 reconciliation. Now, I'm not naive. I know that responsibility had

6 something to do with SFOR and the amount of evidence in this case. But

7 given that, setting that aside, it was not an easy thing to do, and he's

8 stood in front of this Court and testified at length and told you what he

9 did and what happened around him, and that is something of great

10 significance. And I think it's of significance for a couple of reasons:

11 One, as the first officer to stand up and say this happened, followed

12 shortly by Dragan Obrenovic, Mr. Nikolic has let the -- the world know and

13 especially those Muslims know that yes, it did happen; I as a Serb and I

14 as a man are not afraid to tell that and admit it happened. And I know,

15 and I think the Court knows now, or will know as they review the documents

16 that the Defence will also talk about, that this has a very important and

17 significant meaning to many Muslims.

18 We've seen the article of Emir Suljagic, a victim of Srebrenica, and how

19 much that meant to him, how he described the great relief he felt for the

20 first time since -- since Potocari. This relief, I can't put a value on

21 that relief, the relief of one Muslim man. That is a great value. That is

22 of great significance. And he is certainly not the only one that has felt

23 that. Many, many Muslims have felt that. And I give some credit to Mr.

24 Nikolic for being able to start that and bring those feelings throughout

25 Bosnia.

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Page 1645

1 Also, bringing this truth to light in such a stark and definitive and final

2 way places the Republika Srpska, the government that has, as you know,

3 denied that this has happened and has suggested the Muslims have killed

4 themselves, it now puts them in a situation where they must either face the

5 truth and acknowledge it, which would be a huge step towards reconciliation

6 and a major historical move. Now, I'm not so naive as that because of Mr.

7 Nikolic and Mr. Obrenovic that the RS will make that move. I hope they

8 will. But if they don't, they are now putting themselves aside the world

9 community, where the truth is out, the admissions are made, the record is

10 clear, and they must have to face that and go on in a government like that.

11 So that is of some value. I'd gives them the ability to face the truth and

12 join the world community or continue to follow the lie and push themselves

13 aside. And it was Mr. Nikolic, followed by Mr. Obrenovic, that have set

14 this historical movement in motion.

15 Now, that -- that is the bigger picture, and I think the letter of

16 Abdurahman Malkic and others will help fill in the blanks, and I'm sure Mr.

17 Londrovic will very eloquently discuss that.

18 But now getting back -- let's get down to our picture here in The Hague.

19 Of what value is this? Well, Mr. Nikolic has provided us with an insider's

20 account of what happened. And after seven years of investigation and

21 hearing one -- fundamentally one VRS soldier, Drazan Erdemovic, be able to

22 provide an account of a major execution, this is the first time that we

23 really see in a large scale an officer able to explain the big picture.

24 And there -- this is will be something. This is a record that you as the

25 Judges will have to judge this case will always be able to go back to, to

Page 1646

1 compare the other witnesses, to see what other witnesses say.

2 Now, it will be your decision how much credibility to give Mr. Nikolic, of

3 course, but you're able to see him testify; you were able to see his tone,

4 his voice; you were able to see how he reacted under very difficult cross-

5 examination. So you're the best -- in the best position to judge his

6 credibility, and that record that he has given you is an incredibly

7 valuable insight from the inside, something that is -- is rare, certainly

8 in this Tribunal, and even in other criminal cases. And it has value,

9 especially has value not just on its own merits as you view it and how --

10 the reliability you give it, but you will be able to compare it to the

11 record: the Muslims that have testified, the Muslims that have -- are in

12 the record for 92 bis, the DutchBat soldiers, the Serb soldiers. You will

13 be able to view his credibility in relation to what you feel has been

14 proven beyond a reasonable doubt so you can judge his credibility. This is

15 an invaluable thing for you to have in order to make this very difficult

16 judgement, as any judgement would be, and I -- and it's something that is

17 -- is of great importance, especially Potocari.

18 Potocari, the days of Potocari, the numbers of witnesses, the confusion

19 there, the -- the abuses, the separations, this -- as this was presented in

20 the Krstic case and in full is a massive undertaking, and to understand it

21 all is not difficult but it is a -- it's a huge task. This task of

22 understanding Potocari, what happened there, the units that were involved,

23 is made so much clearer by Mr. Nikolic's testimony because we know what

24 happened. We know from the Muslims, from the Dutch -- fundamentally we

25 know many of the people that did it. But now you see it from his

Page 1647

1 perspective, and it really binds the whole story. So we now know from

2 Potocari, without a shadow of a doubt, what happened there. This is very

3 valuable. Without that testimony, yes, you would have known and you would

4 have sorted it out - no question about it - but this is clearly a valuable

5 testimony.

6 Another factor I think you should consider is, as I mentioned briefly in

7 our papers, there are many Muslims that the Prosecution has not had to call

8 because Mr. Nikolic has pled guilty. Some we've been able to put in

9 through 92 bis, many; and others I've not had to call at all. And this is

10 a tremendous relief for those people that have come up here once before,

11 many of them, and for some that haven't come up. There was a witness that

12 I -- we were going to have to arrest to bring her here because her

13 testimony was so important. We didn't have to do that, thank goodness.

14 I'm not sure I would have, but -- the anguish and the difficulty of going

15 through this process was set aside for many, many victims and witnesses.

16 There should be future Srebrenica cases, and by this agreement Mr. Nikolic

17 has agreed to testify in each of those, and that will be of course of great

18 value, as it was in this case. And I have no doubt that he will follow

19 through on his commitment, even after sentencing, and that is of tremendous

20 value for the Office of the Prosecutor for all the reasons I've already

21 mentioned.

22 And lastly, as Your Honours know, Mr. Nikolic has in addition to agreeing

23 to cooperate for all the Srebrenica cases of 1995 - that was part of the

24 plea agreement - in addition to that plea agreement, he has offered his

25 cooperation for the entire wartime period and without reservation. And

Page 1648

1 now, that process has not had a chance to really go forward. I can't offer

2 you the -- the ultimate value of that at this point, but it is valuable for

3 the same reasons that it was valuable in this case.

4 So those are the fundamental reasons why I think this is a fair and just

5 sentence range, and I sincerely ask Your Honours to take these remarks into

6 consideration in your review of sentence, because it's very important.

7 This process that we've entered into is very important.

8 Thank you very much.

9 JUDGE LIU: Thank you.

10 Mr. Londrovic?

11 MR. LONDROVIC: [Interpretation] Your Honours, the accused, Mr. Momir

12 Nikolic, a Serb from Bosnia and Herzegovina, is here before you. He was

13 arrested in his home in Bratunac on the 1st of April, 2002 and he was

14 transferred to the Detention Unit, the UN Detention Unit in Scheveningen,

15 on the 2nd of April, 2002. You have to decide on the appropriate sentence

16 for him because on the 7th of May, 2003 he entered a guilty plea on Count 5

17 in the amended and separated indictment. He pleaded guilty to the crime of

18 persecution, punishable under Article 5(H) of the Tribunal's Statute.

19 According to applicable law when determining the sentence, that is,

20 according to Article 24 of the Statute and Rule 101 of the Rules of

21 Procedure and Evidence, the Defence counsel of Mr. Nikolic would not want

22 to discuss Momir Nikolic's sentence at the time because we are convinced

23 that the Trial Chamber is fully aware of these facts, of these matters.

24 But the Defence will try not to repeat itself, because according to the law

25 on meting out sentencing, it has fully expanded its views on this in its

Page 1649

1 sentencing brief, which it submitted to the Trial Chamber on the 14th of

2 July, 2003.

3 The Defence would like to draw attention to certain facts that in our

4 opinion should be taken into consideration when determining the sentence

5 and which in practice to date, before these -- this Tribunal have not been

6 taken into consideration. The practice concerning sentences in courts of

7 Yugoslavia, the gravity of the crime, the degree to which the accused

8 participant -- the accused participated in the crime, and all mitigating

9 and aggravating factors should be taken into consideration.

10 Article 21, item 1 of the Statute of the Tribunal and 101(B)(iii) (e) of

11 the Rules of Procedure and Evidence require the Tribunal to take into

12 consideration the general practice in sentencing in the courts of the

13 former Yugoslavia. The practice of this Tribunal to date has shown that

14 Trial Chambers are not bound to adhere to these principles, and Mr. Momir

15 Nikolic's Defence counsel agrees with this, but we believe that Trial

16 Chambers should refer to these principles because that would assist the

17 Trial Chambers to determine the appropriate sentence.

18 Mr. Nikolic's Defence counsel agrees that the gravity of the crime is the

19 primary factor that should be taken into consideration when determining the

20 sentence. The sentence meted out should reflect the gravity of the

21 accused's crime. Determining the gravity of the crime involves taking into

22 consideration all the details and circumstances of the case and the degree

23 to which the accused participated in the criminal offence. Similarly, our

24 view is that the sentence has to reflect the importance and the role that

25 the accused play within the context of the conflict in the former

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Page 1651

1 Yugoslavia. This is a view that has been expressed in Tuta, Naletilic and

2 Martinovic case, the judgement dated the 31st of March, 2002, paragraph

3 744. The Defence counsel accepts the finding that the massacre that

4 followed after the Serbs had taken over Srebrenica is one of the worst

5 crimes in Europe after the Second World War, since the Second World War.

6 However, although this is not in dispute, this should not obscure the fact

7 that the main factor is the individual responsibility -- is individual

8 responsibility, the principle of individual responsibility before this

9 Tribunal.

10 The gravity of the crime and the degree to which Momir Nikolic participated

11 in that crime has been described in detail, under item 5 of the amended

12 indictment and in the statement of facts and acceptance of responsibility,

13 and the Defence does not want to go over them once again. But in order to

14 assist the Trial Chamber when determining the gravity of the crime, the

15 form and degree to which Momir Nikolic participated in that crime, with all

16 due respect, the Defence claims that the Trial Chamber must take into

17 consideration the fact that Momir Nikolic's role was not of crucial

18 significance when compared to the role played by other co-perpetrators.

19 The Defence of Mr. Nikolic wishes to point out that the events in

20 Srebrenica in July of 1995, although extremely large in scope, have to be

21 distinguished from the overall systematic campaign of forcible ethnic

22 separation and ethnic cleansing, which was planned, thought up, and

23 implemented by a large number of individuals in the Bosnian Serb

24 leadership, the leaders of the SDS and the government of Republika Srpska,

25 including Radovan Karadzic, Biljana Plavsic, Momcilo Krajisnik, and Ratko

Page 1652

1 Mladic.

2 It is also the view of the Defence that the forcible removal of the

3 population and the murders of the fall of the Srebrenica enclave could only

4 take place because of the atmosphere of hatred between the Bosnian Serbs

5 and the non-Serb population in Bosnia and Herzegovina, which was initiated

6 by the leaders of the Bosnian Serbs, the leadership of the SDS, and the

7 government of the Republika Srpska.

8 Mr. Nikolic, who was a teacher by profession, and was not an active member

9 of the military, was mobilised in April 1992. He was not involved in the

10 planning of the forcible expulsion. Mr. Nikolic was not in a position of

11 command responsibility and only performed tasks passed on to him by

12 superior officers. Since all plans and decisions regarding the forcible

13 transfer and the subsequent murder operation were either made by the Main

14 Staff of the VRS or the VRS Drina Corps command, including security and

15 intelligence officers without any personal involvement by Mr. Nikolic.

16 Mr. Nikolic's main participation was in helping to coordinate and organise

17 the transportation of the women and children to Kladanj, the separation and

18 detention of able-bodied Muslim men, in conjunction with other VRS and MUP

19 units. Although Mr. Nikolic was personally aware of many Muslim men being

20 abused and assaulted and did nothing to prevent these abuses, he was never

21 personally engaged in such conduct, nor did he ever take any part in

22 executions.

23 The Defence of Mr. Nikolic wishes to compare Mr. Nikolic's case to the

24 case of Mrs. Biljana Plavsic. Your Honours must be aware that both Mr.

25 Nikolic and Mrs. Plavsic pleaded guilty for persecution, a crime against

Page 1653

1 humanity, before the start of their trials. The persecution campaign in

2 the Plavsic case included the persecution of Bosnian Muslims, Bosnian

3 Croats, and other non-Serbs in 37 municipalities in Bosnia and Herzegovina.

4 The persecution campaign in the Nikolic case relates only to the Muslims of

5 Srebrenica and to only one municipality, the Srebrenica municipality.

6 In the persecution campaign in the Plavsic case, at least 50.000 persons

7 were killed, while in the campaign in the Nikolic case around 7.000 persons

8 were killed. In the Plavsic case, the persecution campaign lasted

9 longer, from the 1st of July, 1991 to the 30th of December, 1992, while in

10 the Nikolic case it lasted from the 4th of July, 1995 to the 1st of

11 November, 1995.

12 Biljana Plavsic bears both individual and command responsibility,0002

13 while Momir Nikolic bears only individual responsibility. He is not

14 charged with command responsibility in the indictment, under Article 7(3)

15 of the Tribunal. Biljana Plavsic did not testify; she did not cooperate

16 with the Office of the Prosecutor, and Momir Nikolic did and will continue

17 to cooperate with the Office of the Prosecutor. Momir Nikolic has shown

18 substantial cooperation with the Office of the Prosecutor, which was not

19 done by Mrs. Biljana Plavsic.

20 Mrs. Biljana Plavsic was one of the leaders of the Bosnian Serbs, while

21 nothing like that can be said about Mr. Momir Nikolic. Momir Nikolic was

22 the chief of the intelligence and security organ in the Bratunac Brigade.

23 He was not an authorised official with an official pass, and he did not

24 even have the capacity to instigate criminal proceedings for crimes

25 committed.

Page 1654

1 Your Honours are aware of the fact that Mrs. Plavsic was sentenced to 11

2 years of imprisonment. The Office of the Prosecutor proposed that she be

3 sentenced to 15 to 25 years. This sentence became valid, and now Mrs.

4 Plavsic is serving her sentence in Sweden.

5 Bearing all this in mind, the Defence of Mr. Nikolic, with all due

6 respect, argues that it would not be fitting for Momir Nikolic to be

7 sentenced to a longer period of time than Mrs. Biljana Plavsic.

8 With respect to aggravating circumstances, the Defence of Mr. Nikolic

9 argues that there is no aggravating circumstance in the case of Momir

10 Nikolic. In contrast to the Defence, the Prosecution points out that in

11 Momir Nikolic's case there are three such circumstances, these being his

12 position of leadership, the vulnerability of the victims, and0003 the

13 depravity of the crimes.

14 With respect to his position of leadership, the Prosecutor points out that

15 Mr. Nikolic was a commander in organising activities and managing the

16 activities of the military police of the Bratunac Brigade. The Defence

17 disagrees with this viewpoint of the Prosecution and stresses that Momir

18 Nikolic, as the chief of the intelligence and security organ in the

19 Bratunac Infantry Brigade, was duty-bound to, in connection with the

20 commanding officer of the unit within which his unit was, to suggest the

21 use of the military police. He was responsible for the combat readiness of

22 the military police and for the implementation of the military police

23 tasks. But it was the commanding officer of the military unit that

24 commanded this unit or the commanding officer of the institution of which

25 the military police formed a part. In this particular case, this would be

Page 1655

1 the commander of the Bratunac Brigade.

2 The accused, Mr. Nikolic, did not have command responsibility, nor was he

3 charged with command responsibility in the indictment. The Prosecutor

4 gives certain examples: Dario Kordic was the leader of the Croatian

5 Community of Herceg-Bosna, and his position can be equated with the

6 position taken by Mr. Radovan Karadzic in Republika Srpska and by no means

7 with the position of Momir Nikolic. Jean Kambanda, as the Prosecution

8 points out themselves, held a high-ranking ministerial position, which is

9 certainly not the case with Momir Nikolic. Mario Cerkez was a brigade

10 commander; this position cannot be equated with Momir Nikolic's position

11 either. Kupreskic was the commander of a battalion of the military police,

12 and again this cannot be equated with0004 Momir Nikolic's position. All

13 the accused that the Prosecutor refers to had command responsibility in

14 addition to individual responsibility. This is not the case with Mr.

15 Nikolic.

16 The Prosecution further points out that Mr. Nikolic played an important

17 role in the forcible transfer of the civilian population, the separation,

18 detention, and abuse of men separated off in Potocari and arrested on the

19 Bratunac-Milici road. The Prosecution further points out that Mr. Nikolic

20 was responsible for the coordination of these activities with his superior

21 officers. The Defence does not challenge any of these facts, and Mr.

22 Nikolic has admitted them. But they are listed in the indictment against

23 Mr. Nikolic, and Mr. Nikolic's Defence contends that Mr. Nikolic had he not

24 done these things would not have been indicted. All this is in the

25 indictment against Mr. Nikolic and all this is subsumed in the overall

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Page 1657

1 gravity of the offence, so the Defence, with all due respect, argues that

2 it cannot be taken as a special aggravating circumstance.

3 With respect to the vulnerability of the victims and the depravity of the

4 crime, the Defence agrees that these can be aggravating circumstances but

5 the Defence contends that in all the circumstances of this case these

6 factors are, in fact, subsumed in the overall gravity of the offence, and

7 with all due respect, we suggest to the Trial Chamber that they should not

8 be viewed as special aggravating circumstances, and this was the manner in

9 which the Trial Chamber proceeded in the case of Mrs. Plavsic, the sentence

10 of the 27th of February, 2003, paragraph 78.

11 In the case of Momir Nikolic, there are a number of mitigating

12 circumstances which form a substantial body of mitigation and lead us to

13 argue that he should be entitled to a reduced sentence. One of these

14 substantial mitigating circumstances is his guilty plea. In the practice

15 of the Tribunal, a guilty plea is a reason to diminish the sentence to

16 which the accused would otherwise be sentenced for the following reasons:

17 A guilty plea demonstrates honesty and is very important for the Tribunal

18 because it encourages others to come forth, regardless of whether they are

19 already indicted or are unknown perpetrators; a guilty plea contributes to

20 the fundamental mission of the Tribunal, to establish the truth in

21 connection with the crimes over which it has jurisdiction; a guilty plea

22 provides a unique and unquestionable fact-finding tool that greatly

23 contributes to peace-building and reconciliation among the affected

24 communities. That this is so is best illustrated by the testimonies of DA

25 and DB, Defence witnesses, as well as the Defence exhibits marked DS17,

Page 1658

1 DS18, and DS19. A guilty plea contributes to the public advantage of the

2 work of the International Tribunal by saving significant resources for

3 investigations, fees for Defence counsel, and the costs of a trial; a

4 guilty plea also may relieve some victims and witnesses from the stress of

5 giving evidence.

6 Mr. Nikolic's plea demonstrates his honesty and candour. His plea deserves

7 special attention since he was the first Serbian officer to come forth and

8 to acknowledge the VRS's involvement and his personal responsibility with

9 regard to the events of the fall of the Srebrenica enclave in July 1995.

10 His acknowledgment of the crimes and his personal accountability will

11 contribute to rendering justice to victims, to deterring others, to

12 providing a basis for reconciliation, and to preclude ethnic hatred.

13 This leads us to the core mission of this Tribunal, to restore peace and

14 security to the region through accountability and reconciliation. In view

15 of the fact that Mr. Nikolic pleaded guilty before the start of the trial,

16 the Defence asserts that he deserves full credit for his guilty plea.

17 The second important mitigating circumstance in favour of Mr. Nikolic is

18 his substantial cooperation, which he has already realised with the Office

19 of the Prosecutor. Rule 101(B)(ii) of the Rules of Procedure and Evidence

20 explicitly states that cooperation with the Office of the Prosecutor should

21 be considered in sentencing an accused who has been found guilty.

22 Moreover, cooperation with the Prosecutor is the only circumstance

23 explicitly provided for within the terms of the Rules. By this simple

24 fact, it takes on a special importance.

25 The Defence argues that in this case there has been substantial cooperation

Page 1659

1 between Mr. Nikolic and the Prosecution and the Prosecution itself has

2 confirmed this in their additional written submission or, rather, in their

3 additional sentencing brief of the 15th of October, 2003. The statement of

4 facts and acceptance of responsibility is a good example of high-quality

5 information given to the Office of the Prosecutor. Mr. Nikolic has given

6 names, described incidents, explained the participation of military and

7 police units, and provided other information not previously available to

8 the Office of the Prosecutor before Mr. Nikolic gave extensive interviews

9 to the Office of the Prosecutor. The Defence, with all due respect, wishes

10 to point out to the Trial Chamber that it should also take into

11 consideration the fact that Mr. Nikolic's decision to cooperate with the

12 Office of the Prosecutor as the first Serbian officer to do so required

13 special courage, in view to have fact that even the official authorities of

14 Republika Srpska have not yet admitted the crimes that took place after the

15 fall of the Srebrenica enclave.

16 We argue that the cooperation of Mr. Nikolic with the Prosecutor has

17 obviously encouraged and will encourage others to come forward and to

18 accept their responsibility.

19 Their Honours certainly know that after Mr. Nikolic's guilty plea, Mr.

20 Dragan Obrenovic also pleaded guilty and decided to cooperate with the

21 Office of the Prosecutor, and this was followed by other guilty pleas; Mr.

22 Nikolic has certainly contributed to this, at least in part.

23 The third important mitigating circumstance is his remorse, which is

24 sincere. Sincere remorse has been taken as a mitigating factor in a number

25 of cases before the Tribunal. In the Simic case, paragraph 92 of the

Page 1660

1 sentence; the Sikirica and others case, sentence, paragraph 192, 194, and

2 230; the Todorovic case, paragraph 89 of the sentencing brief; Plavsic

3 case, sentencing judgement, paragraph 73.

4 Mr. Nikolic has accepted responsibility and shown sincere remorse during

5 his meeting with representatives of the Office of the Prosecutor. By his

6 guilty plea, Mr. Nikolic has also demonstrated remorse publicly. Mr.

7 Nikolic intends to address the Trial Chamber to repeat his expression of

8 sincere remorse, and the Defence hopes that the Trial Chamber will grant

9 him leave to do so.

10 The fact that Mr. Nikolic had no opportunity for voluntary surrender to the

11 Tribunal, in the Tribunal jurisprudence voluntary surrender has been taken

12 as a mitigating factor. In the Simic case, sentencing judgement paragraph

13 107; in the Kunarac case, sentencing judgement paragraph 168. Mr. Nikolic

14 did not voluntarily surrender because he did not know of the sealed

15 indictment, and he did not know that the indictment against him had been

16 confirmed on the 28th of March, 2002, only a few days before his arrest,

17 that is, the 1st of April, 2002. Mr. Nikolic, therefore, did not have an

18 opportunity for voluntary surrender.

19 The Trial Chamber, in the view of the Defence, should take into

20 consideration as an equally mitigating circumstance the cooperation of Mr.

21 Nikolic and his correct behaviour toward the investigators of the Tribunal

22 before his arrest, which is proved by Mr. Ken Corlett's statement of the

23 17th of June, 2003, Defence Exhibit DS1. Mr. Nikolic responded to all

24 requests by the Tribunal investigators. He did not change his place of

25 residence, nor did he try to hide in any other way. He was arrested at the

Page 1661

1 address he had always resided at, which was well known to Tribunal

2 investigators.

3 The Defence of Mr. Nikolic, with all due respect, contends that Mr. Nikolic

4 -- had he known that a secret indictment had been issued against him, had

5 he had someone to tell him this, as Mrs. Plavsic did -- he would certainly

6 have voluntarily surrendered to the Tribunal. And this is confirmed by

7 Witness Milorad Krsmanovic.

8 Another mitigating circumstance, which in the view of the Defence Mr.

9 Nikolic has a right to, is no prior criminal convictions. In the

10 jurisprudence of the International Tribunal, a lack of prior criminal

11 record has been considered as a mitigating factor: Simic case, sentencing

12 judgement, paragraph 108; Aleksovski case, sentencing judgement, paragraph

13 236. Therefore, the Trial Chamber, when determining a sentence, should

14 take into consideration the fact that Mr. Nikolic had no previous

15 convictions and consider this a mitigating circumstance; the Defence

16 Exhibits DS2 and DS3.

17 JUDGE LIU: Well, Mr. Londrovic, it's time for a break. Shall we break

18 now?

19 MR. LONDROVIC: [Interpretation] Yes, Your Honour. I have just finished the

20 part that concerns mitigating circumstances, and I was going on to the

21 following item. Thank you.

22 JUDGE LIU: We'll break until 4.00 -- 5.00.

23 --- Recess taken at 4.30 p.m.

24 --- On resuming at 5.02 p.m.

25 JUDGE LIU: Yes, Mr. Londrovic. Please proceed.

Page 1662












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Page 1663

1 MR. LONDROVIC: [Interpretation] Thank you, Your Honour. The fact that

2 there's been no prior discriminatory behaviour, in the Defence's opinion,

3 is also a factor that the Trial Chamber should take into consideration as a

4 mitigating circumstance.

5 Momir Nikolic was born in Bratunac on the 20th of February, 1955.

6 After attending the primary school and secondary school in Bratunac, he

7 graduated from the university in Sarajevo and started working as a

8 professor -- as a teacher in the secondary school in Bratunac. He married,

9 and he has two sons. His elder son, Branislav, is studying in Belgrade,

10 and his younger son, Aleksandar, attends primary school in Bratunac. The

11 Defence would like to stress the fact that up until the time when he

12 committed the crime, Mr. Nikolic led an honest, private family and social

13 life. He never showed any nationalistic tendencies and never had any

14 problems with members of other ethnic groups. Mr. Nikolic did not

15 discriminate against his pupils on an ethnic basis, and he socialised with

16 people from various ethnic groups.

17 At a time of growing inter-ethnic tension in Bosnia-Herzegovina,

18 between 1989 and 1991, Momir Nikolic did not support the idea of a Greater

19 Serbia, and he was not a member of the Serbian Democratic Party. Likewise,

20 he did not participate in any of the numerous nationalistic rallies which

21 at the time had been organised by the nationalistic parties. All this has

22 been proven by statements from Defence witnesses and by the exhibits that

23 have been presented to the Trial Chamber.

24 After the signing of the Dayton Peace Agreement, Mr. Nikolic was

25 demobilised. He left the Republika Srpska army and had various jobs in

Page 1664

1 Bratunac, which is something he's already mentioned in his testimony.

2 During that period, he cared not only for his two sons and his wife but

3 also for his 70-year-old mother, Milenija Nikolic, who lives with his

4 family.

5 From the time of his arrest, Mr. Nikolic's family has had to cover

6 all the costs of living out of Mr. Nikolic's wife's salary as a teacher,

7 which amounts to 428 convertible marks a month, and from his mother's

8 pension, which is 79.90 convertible marks a month. The financial and

9 economic situation of Mr. Nikolic's family is thus quite difficult, and in

10 the Defence's opinion, the Trial Chamber should also take this factor into

11 consideration as a mitigating circumstance for Mr. Nikolic.

12 Another mitigating circumstance in favour of Mr. Nikolic is his

13 conduct in the UN Detention Unit. During his stay in the Detention Unit,

14 Mr. Nikolic has fully respected the prescribed rules and conditions of

15 detention, and he has behaved towards the staff of the Detention Unit in an

16 exemplary fashion. And he behaved in the same manner towards all the other

17 accused, regardless of the ethnic group they belonged to. This can be

18 proven by a statement from -- by a report from the UN Detention Unit; this

19 is Defence Exhibit DS14.

20 As far as the witness Milivoje Petkovic's testimony is concerned and

21 the protected witness who testified in closed session, with regard to this

22 testimony, once the testimony is analysed, the Trial Chamber can draw the

23 conclusion that, on the whole, these testimonies confirm the event that Mr.

24 Nikolic spoke about for the first time when he testified. It would not be

25 reasonable to expect that Mr. Mile Petrovic would admit that he

Page 1665

1 participated in the elimination of captured Muslims, because if he did

2 this, he would expose himself to criminal responsibility. As far as the

3 credibility of Mr. Momir Nikolic as a witness is concerned and as far as

4 his truthful and courageous testimony is concerned, the Defence would like

5 to point out that with regard to this matter, it fully agrees with the

6 positions of the Defence which are provided -- which are listed in their

7 additional sentencing brief, provided to the Trial Chamber on the 15th of

8 October, 2003. The significance for the Bosniak people of the admission of

9 guilt and the acceptance of responsibility on the part of Mr. Nikolic can

10 be best seen from the letter of the current major of Srebrenica, Mr.

11 Malkic, Defence Exhibit DS17. In this letter, it says:

12 "Momir Nikolic is the first officer of the Serbian army who found the

13 courage and strength to admit the crimes and the fact that he participated

14 in these crimes himself. I hope that his conscience has been awoken and

15 this is why I support his guilty plea, his admission of guilt, and I appeal

16 to others to do the same. The admission of the crime committed against the

17 residents of Srebrenica is of multi-fold importance, when we know that

18 Republika Srpska authorities have not officially admitted it yet. I

19 believe that not only Momir Nikolic and others confessing their personal

20 responsibility, but the clarification of the role of others in the Serbian

21 army and officials of the Serbian people will force the Republika Srpska

22 authorities to finally admit that a crime was perpetrated in Srebrenica by

23 individuals and groups from the ranks of the Serbian people. It is only by

24 recognising and admitting the real and whole truth about the crime

25 committed in July 1995 and other crimes in Bosnia and Herzegovina, it is

Page 1666

1 only through this means that trust can be rebuilt among the citizens of

2 Bosnia and Herzegovina."

3 On the basis of everything that has been set forth, Mr. Nikolic's Defence

4 counsel, with all due respect, requests that the Trial Chamber not

5 determine a sentence exceeding ten years and that this sentence should take

6 into account the time that Momir Nikolic has already spent in the Detention

7 Unit.

8 I would now like to require that the Trial Chamber grant Mr. Nikolic

9 permission to address you. Thank you.

10 JUDGE LIU: Well, thank you, Mr. Londrovic. And before we give the floor

11 to Mr. Nikolic, I would like to ask you two questions: In your sentencing

12 brief, you indicated in paragraph 16 that "Following the abolishment of the

13 death penalty, the maximum sentence is 20 years." But it appears that

14 Article 38 of the Bosnia code states "20 to 40 years." Would you please

15 make some clarifications on that issue.

16 MR. LONDROVIC: [Interpretation] Yes, Your Honours, I can provide you with

17 some clarifications.

18 Before the war broke out and before the former Federal Republic of

19 Yugoslavia disintegrated, according to the former legislation of the former

20 Yugoslavia and the former republics within Yugoslavia, the maximum sentence

21 for the most serious crimes was the death penalty, whereas the maximum term

22 of imprisonment was 15 years. The courts in the former Yugoslavia, in the

23 case of the most serious crimes, if they had determined that there were

24 reasons not to issue the death penalty, they could replace the death

25 penalty by a sentence of 20 years in prison. It follows that in the courts

Page 1667

1 of the former Yugoslavia the maximum sentence was 15 years in prison or,

2 rather, the death penalty could be replaced by a sentence of 20 years in

3 prison. It was not possible to determine a sentence within a 15-to-20-year

4 range. You couldn't give a sentence of 16, 17, or 18 years. The maximum

5 sentence was 15 years, or if the court decided not to opt for the death

6 penalty, then that penalty would be replaced by a 20-year sentence.

7 The criminal law in Yugoslavia was subsequently amended; the death penalty

8 was abolished. So the possibility remained of meting out a 15-year prison

9 sentence for serious crimes. Or if the penalty was to replace the death

10 penalty, the term of imprisonment would be 20 years.

11 You mentioned an article from the Federation of Bosnia and Herzegovina.

12 This law was adopted in 1988. And when the criminal law of the Federation

13 of Bosnia and Herzegovina abolished the death penalty, then the sentence of

14 long-term imprisonment was introduced, which could range from 20 to 40

15 years. However, since Mr. Nikolic committed a crime in 1995, and according

16 to the criminal legislation of Yugoslavia, one always opts for the more

17 lenient sentence. For this reason, we claim that for the crime that Mr.

18 Nikolic is being charged with, according to the law in the former

19 Yugoslavia, the maximum sentence would be 20 years in prison, if the death

20 penalty were to be replaced with a 20-year prison sentence and if the death

21 penalty were abolished.

22 According to the Tribunal's positions, according to the Tribunal's

23 jurisprudence, life imprisonment would more or less be equivalent to the

24 death penalty that had been provided for by the legislation in the former

25 Yugoslavia, the former legislation in the former Yugoslavia.

Page 1668












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Page 1669

1 Your Honour, we have to distinguish between the criminal law of the Bosnia-

2 Herzegovina Federation, which is one entity, and the criminal law of

3 Republika Srpska, which has its own criminal law and is a separate entity.

4 And you are well aware that Bosnia and Herzegovina consists of these two

5 entities.

6 JUDGE LIU: Thank you. And are you aware that this Tribunal will not bound

7 by the national practice in meting out this sentence?

8 MR. LONDROVIC: [Interpretation] Yes, Your Honour, I am aware of that fact.

9 And in my closing argument, I did stress that fact. I pointed out that

10 according to the jurisprudence of this Tribunal, this Tribunal is not bound

11 by the general practice of sentencing in the former Yugoslavia. And I

12 stated that Mr. Nikolic's Defence accepted this. However, we have appealed

13 to you to bear these principles in mind, as they might assist you to

14 determine the appropriate sentence.

15 JUDGE LIU: Well, you mentioned the jurisprudence of this Tribunal and the

16 position of this Tribunal. Do you have an opportunity to explain to your

17 client about the seriousness of the crime of persecution as a crime against

18 humanity and the sentencing range for that crime in this Tribunal, which I

19 believe is from more or less seven years to the life sentence?

20 MR. LONDROVIC: [Interpretation] Yes, Your Honour. My colleague Kirsch and

21 I fully explained the gravity of the crime that he has admitted. The

22 accused is aware of the seriousness of the crime. And when he entered a

23 guilty plea, you may recall that this Trial Chamber drew his attention to

24 the fact that they weren't bound by agreements, and Mr. Nikolic told you

25 that he was aware of that fact and that he was aware of the fact that for

Page 1670

1 the crime of persecution, which is punishable under Article 5(H) of the

2 Statute, he stated that he was aware of the fact that he could be given a

3 sentence of life imprisonment.

4 [Trial Chamber confers]

5 JUDGE LIU: Thank you.

6 Mr. Nikolic, well, you may sit down while making your statement. Please

7 sit down.

8 THE ACCUSED: [Interpretation] Thank you. Your Honours, if I have

9 understood the authorisation you granted a little earlier on, I've been

10 granted leave to clarify two issues; the first one concerns my request

11 relating to certain funds of the officer from the Dutch Battalion, and the

12 second issue has to do with the zone of responsibility or, rather, has to

13 do with Kravica and with my view of the zone of responsibility of the

14 Bratunac Brigade.

15 I would first of all like to try and explain this matter to you, the matter

16 that has to do with the statement given by the officer from the Dutch

17 Battalion. In response to a question put to me by Mr. Karnavas, I was a

18 little confused by his question when it was stated that I asked from the

19 Dutch Battalion officer, I asked for remuneration for his rent. That

20 concerned the Dutch Battalion. At that time, I said - and I will repeat

21 this again - that the Dutch Battalion was only billeted in the UN

22 headquarters in Potocari. At the time, I didn't pay attention to the fact

23 that during that period in Bratunac military observers were in the Fontana

24 Hotel in Bratunac, UN military observers. They stayed there together with

25 their interpreters. They paid for their accommodation and for their food

Page 1671

1 in the hotel in Bratunac.

2 As far as the observers are concerned, they paid for their accommodation to

3 Hotel Fontana, or, rather, to the Podrinje company, and they would pay for

4 their accommodation when they got funds from their base or from their

5 command in Tuzla.

6 When the attack was launched against Srebrenica, a group of these military

7 observers withdrew to their base in Potocari and to Srebrenica, and it is

8 possible that during that period they had failed to pay that company, that

9 is to say, they failed to pay for their accommodation in the Fontana Hotel,

10 which is where they had been staying. What is my connection with this

11 matter? I will tell you about it very briefly now.

12 Before me I have some documents on the basis of which the Trial Chamber can

13 see that by an order from the corps commander, General Zivanovic, I was

14 designated as the controlling organ for all the payments made to that

15 company, all the trade to that company, and that concerned all transactions

16 with the Dutch Battalion and all the organisations which traded with the

17 Podrinje company from Bratunac, that is to say, with the hotel in Bratunac.

18 I have an order here before me which I can provide you with. It is dated

19 the 10th of August, 1994, number 402-2. It's signed by Major Milenko

20 Zivanovic, and it is signed and sealed and stamped. In the penultimate

21 paragraph, you can see that I represent the security organ from the

22 Bratunac Brigade and that these duties are my responsibility. I am

23 supposed to control these transactions.

24 The following document that I can show you is another order issued by

25 General Zivanovic, the corps commander, and that document demonstrates -

Page 1672

1 and I quote - "The entire procedure that has to do with providing UNPROFOR

2 members with goods, members who were located in Srebrenica. And the

3 commander of the 1st Bratunac Light Infantry Brigade shall control all

4 these deliveries, all these procedures." And, Your Honour, what does that

5 have to do with the Bratunac Brigade? What do financial transactions have

6 to do with the Bratunac Brigade? Well, I have a document here from that

7 company, from the Podrinje company in Bratunac, and this document shows

8 that a letter addressed to the general or the corps command -- well, I will

9 quote: "You are aware that we provide logistical support for these

10 transactions for the Bratunac Brigade and there will be a 70-per cent

11 benefit and it is planned that 300.000 dinars should be separated by the

12 end of the year for the brigade." For all of these reasons, my role was to

13 control the trade and to control all the documents that formed part of the

14 financial transactions of that company. And before this Trial Chamber, I

15 would like to state that it is possible that at the time when I had

16 contact, when I contacted the representative of the Dutch Battalion, I

17 requested that the debts be paid, the debts for staying in the Hotel

18 Fontana and for being -- and for food consumed in the Hotel Fontana. But I

19 would like to claim that I never asked anyone -- I never asked any Dutch

20 Battalion members for funds for my personal use. Only what I have

21 mentioned is possible, because these documents that I have before me

22 provide proof -- these documents have been stamped, and they prove that the

23 Dutch would pay in cash and that the military observers would pay in the

24 way that I have explained to you.

25 Your Honours, I wish to show you or tender into evidence all these

Page 1673

1 documents that I have, and all of these have to do with trade payments and

2 all the circumstances that have to do with the military observers, the

3 Hotel Fontana, that is, the Podrinje company, and the Dutch Battalion,

4 Hotel Fontana, and the Podrinje company.

5 JUDGE LIU: Well, as for the tendering of those documents into the

6 evidence, I believe that we could find another opportunity in other

7 proceedings.

8 Do you have any observations to make, Mr. Nikolic?

9 THE ACCUSED: [Interpretation] Observations to do with this issue, Your

10 Honours?

11 JUDGE LIU: It may -- well, it depends. If you have some issues to deal

12 with on this issue, you may continue. And if not -- if you have any other

13 observations, you may make it.

14 THE ACCUSED: [Interpretation] Your Honours, I wish to ask you, if you have

15 any questions to ask in connection with what I have just said, please do

16 so. And then I would like to say something about another issue.

17 [Trial Chamber confers]

18 JUDGE LIU: It seems to me there's no questions to ask you on this issue

19 from the Bench. You may continue.

20 THE ACCUSED: [Interpretation] Another issue I wanted to tell you the full

21 truth about was the issue of the zone of responsibility of the Bratunac

22 Brigade. In my testimony, I said that I am not an expert on such questions

23 and that these fall within the competence of the operative organs, the

24 chief of staff, and the brigade commander. I did not wish then, nor do I

25 wish now, to go into an expert analysis of the area of responsibility,

Page 1674












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Page 1675

1 because I feel I am not fully familiar with these questions. What I can

2 say now is that after my testimony I looked at the brigade rules and then I

3 was in a dilemma as to its position: Was it a brigade in defence, which it

4 certainly cannot be? Was it a brigade on the offensive? And again, I

5 cannot describe it as such, because it wasn't. But thinking about its

6 position, I thought that it was on the defence, because it wasn't moving

7 anywhere. The units were simply holding their positions. And now I know

8 that any unit, even a low-level unit - and this includes a brigade - has

9 its area of responsibility in depth. And, of course, if that is the case,

10 the Bratunac Brigade, in view of the fact that it also had a battalion

11 attached to it, so its area of responsibility was extended -- in view of

12 this fact, I can now say that Kravica was within the area of responsibility

13 of the Bratunac Brigade.

14 This was what I wanted to add, but I certainly don't want to --to assume

15 the right of commenting on this area, because as an intelligence officer I

16 was interested in what was in front of the Bratunac Brigade units and that

17 was what was in the enclave or, if we are speaking of combat, what was in

18 the direction of the operations carried out by the unit.

19 JUDGE LIU: You may continue, Mr. Nikolic, if you have -- if you have any

20 other observations to make.

21 THE ACCUSED: [Interpretation] I have finished with this issue. If Your

22 Honours have any question about this issue, I am prepared to reply to the

23 extent to which I understand these matters. Then I would like to address

24 you.

25 [Trial Chamber confers]

Page 1676

1 JUDGE LIU: You may continue.

2 Yes --

3 MR. LONDROVIC: [Interpretation] Your Honour, I apologise, but before Mr.

4 Nikolic addresses you, I would like to make a small correction. When you

5 asked me about the Criminal Code of the Federation, I made a mistake by

6 saying that it was adopted in 1988. My colleagues tell me that this is in

7 the transcript. This was an error on my part. This Criminal Code was

8 enacted in 1998. And this is in line 36:4. The law was enacted in 1998 -

9 to avoid confusion - and this is the law that provides for long-term prison

10 sentences, from 20 to 40 years. Thank you, Your Honours.

11 JUDGE LIU: Thank you.

12 Mr. Nikolic, you may continue.

13 THE ACCUSED: [Interpretation] Thank you.

14 Your Honours, by this statement, I wish to explain to you in the simplest

15 and shortest way possible the reasons for my guilty plea to Count 5 of the

16 Indictment. I arrived at this decision on my own, without any kind of

17 pressure, threat, or persuasion by my counsel or by the Prosecutors, and I

18 decided to come before this Tribunal and admit that a crime happened in

19 Srebrenica in which I myself participated and for which I expect adequate

20 punishment.

21 I sincerely wish before this Chamber and before the public, especially the

22 Bosniak public, to express my deep and sincere remorse and regret because

23 of the crime that occurred and to apologise to the victims, their families,

24 and the Bosniak people for my participation in this crime. I am aware that

25 I cannot bring back the dead, that I cannot mitigate the pain of the

Page 1677

1 families by my confession, but I wish to contribute to the full truth being

2 established about Srebrenica and the victims there and for the government

3 organs of Republika Srpska, and all the individuals who took part in these

4 crimes should follow in my footsteps and admit to their participation and

5 their guilt, that they should give themselves in and be held responsible

6 for what they have done.

7 By my guilty plea, I wanted to help the Tribunal and the Prosecutors to

8 arrive at the complete and full truth and the victims, their brothers,

9 mothers, and sisters should -- I wanted to avoid their being subjected to

10 additional suffering and not to remind them of this terrible tragedy.

11 Your Honours, I feel that my confession is an important step toward the

12 rebuilding of confidence and coexistence in Bosnia and Herzegovina, and

13 after my guilty plea and sentencing, after I have served my sentence, it is

14 my wish to go back to my native town of Bratunac and to live there with all

15 other peoples in peace and harmony, such as prevailed before the outbreak

16 of the war.

17 Thank you, Your Honours, for giving me this opportunity to address you.

18 JUDGE LIU: Thank you, Mr. Nikolic.

19 [Trial Chamber confers]

20 JUDGE LIU: Any questions from the Judges? Yes, Judge Argibay, please.

21 Questioned by the Court:

22 JUDGE ARGIBAY: Mr. Nikolic, I wanted to ask you something: You just

23 explained that you are remorseful and you have a great regret because of

24 the crime, et cetera, you want to apologise to the victims. Why did you do

25 it in 1995?

Page 1678

1 A. Your Honours, what happened in 1995 is something that I never wanted

2 to happen, either in 1995 or in 1992, when I was expelled because I opposed

3 the extremists. And I hope that you have heard the testimonies of the

4 witnesses who said that because of my viewpoints in 1992, I was physically

5 attacked and mistreated and ended up in hospital for that reason. I did it

6 out of fear that something similar should happen to me again. In 1995,

7 like many other officers who were mobilised, not of their own free will but

8 by a decision of the State, I remained there and I did only what I was

9 ordered to do and what I had to do. I had no possibility to oppose this.

10 And now I regret that at the time all this was happening, I did not again

11 take off my uniform and leave and hide.

12 JUDGE ARGIBAY: Do you think that that was what you were to do and you were

13 not able to do that, to just take off your uniform, leave, and hide?

14 A. Your Honour, I tried to do that once. I did not encounter

15 understanding in the place I went to. In the house where I was a refugee,

16 together with my family, it was a flat of 60 square metres and there were

17 14 of us inside. No one was employed, and I said this in my testimony -

18 this can be checked - I performed physical labour in the Naftagas company.

19 I painted the fence, cut the grass. I did what -- the tasks I was given in

20 order to survive with my family. After this, I went back and, believe me,

21 my family and I in this period did not have any other solution but for us

22 to stay there. I had nowhere to go. I could have gone, but my family, my

23 children, my younger son, who was then four years old, I didn't know where

24 to put them.

25 JUDGE ARGIBAY: Can you think about the youngest son of all the Muslims

Page 1679












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Page 1680

1 killed in the Srebrenica massacre?

2 A. Of course. Of course, Your Honour. One of the strongest reasons why

3 I have done all this are my pangs of conscience, a pain I have been

4 carrying inside me all this time. And believe me, I owe an apology to all

5 the victims, all the children, all the mothers who have lost their sons,

6 and I especially want to apologise to my pupils.

7 JUDGE ARGIBAY: Thank you. I have no further questions.

8 JUDGE LIU: Well, Mr. Nikolic, I have one question to you. In your

9 testimony, you told us that you served in a capacity of the chief of the

10 department of the Ministry for Refugees and Displaced Persons in Bratunac

11 and as a coordinator of that ministry for the municipality following your

12 demobilisation in April 1996. In about 15 months that you served in this

13 position, did you take any steps to assist displaced Bosnian Muslims in

14 returning to their homes in Srebrenica?

15 A. Your Honour, in this period there was a law in force on abandoned

16 property. In the period I was working in the Ministry of Refugees and

17 Displaced Persons, the process of the restoration of property was not

18 underway. These laws were adopted later. However, in the Ministry of

19 Refugees and Displaced Persons, by my work there, I contributed in those 17

20 months to 1.500 decisions on the adaptation and repair of houses and a

21 breakdown of these decisions will show that using ministry funds and the

22 funds of companies from Sarajevo, first of all, the Remontni Zavod,

23 Unioninvest and other companies. I issued a large number of decisions for

24 the adaptation and repair of Muslim houses. All this can be seen and there

25 are documents to show this in the ministry in Bratunac, as well as in

Page 1681

1 Srebrenica, because there was a period of time when I was the coordinator

2 for these two municipalities and I was implementing the then-law and the

3 then-policy in connection with abandoned property. I think by implementing

4 that law, to repair Muslim houses, and using extraordinary funds from these

5 companies, I contributed without paying attention to whether a house was a

6 Serb or a Muslim house to speeding up the return of refugees in Bratunac.

7 JUDGE LIU: Thank you.

8 At this stage of the proceedings, are there any other matters that the

9 parties would like to bring to the attention to this Bench?

10 Mr. McCloskey?

11 MR. McCLOSKEY: No, Mr. President.

12 JUDGE LIU: Mr. Londrovic?

13 MR. LONDROVIC: [Interpretation] No, Your Honour.

14 JUDGE LIU: Thank you.

15 Well, I believe that the hearing is closed, and this Trial Chamber will

16 deliberate on the sentencing issues based on the testimony we heard in this

17 case, as well as the evidence we admitted.

18 The registrar will be instructed for a proper date for the delivering of

19 the judgement, which will certainly be delivered by the winter recess or at

20 the beginning of the next month.

21 The hearing is adjourned.

22 --- Whereupon the hearing adjourned at 5.52 p.m.