Tribunal Criminal Tribunal for the Former Yugoslavia

Page 1682

1 Tuesday, 2 December 2003

2 [Sentencing]

3 [Open session]

4 [The accused entered court]

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

6 JUDGE LIU: Call the case, please, Mr. Court Deputy.

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

8 IT-02-60/1-S, the Prosecutor versus Momir Nikolic.

9 JUDGE LIU: Thank you very much.

10 For the sake of the record, may we have the appearances, please.

11 For the Prosecution.

12 MR. McCLOSKEY: Yes, good afternoon, Mr. President. Peter

13 McCloskey for the Office of the Prosecutor, with Stefan Waespi and

14 Antoinette Issa, and of course Janet Stewart.

15 JUDGE LIU: Thank you.

16 For the accused.

17 MR. LONDROVIC: [Interpretation] Good afternoon, Your Honours. The

18 accused Mr. Nikolic is represented by myself, Veselin Londrovic, and my

19 colleague, Stefan Kirsch. We are assisted by our interpreter, Ms. Vesna

20 Anic.

21 JUDGE LIU: Thank you very much.

22 Mr. Nikolic, can you hear the proceedings in a language that you

23 understand?

24 THE ACCUSED: [Interpretation] Yes, Your Honours, I can hear you,

25 and I can understand the language spoken.

Page 1683

1 JUDGE LIU: Thank you very much. If there's any problems, please

2 do not hesitate to let us know. You may sit down, please.

3 THE ACCUSED: [Interpretation] Thank you.

4 JUDGE LIU: Good afternoon, ladies and gentlemen. This hearing is

5 for the Trial Chamber to deliver judgement in this case. What follows is

6 the summary of the written judgement and forms no part of it. The written

7 judgement will be made available to the parties and to the public at the

8 end of this hearing.

9 We are here today to sentence Momir Nikolic for his participation

10 in the crime of persecutions committed following the fall of the

11 Srebrenica enclave in July 1995.

12 Mr. Nikolic, a 48-year-old Bosnian Serb, was indicted by the

13 Office of the Prosecutor on 26 March 2002 for crimes, including genocide,

14 persecutions, and extermination. He was arrested by SFOR on the 1st of

15 April, 2002, and transferred to the Tribunal, where he has remained in

16 detention at the United Nations Detention Unit. Momir Nikolic was jointly

17 charged with three other accused and his trial was scheduled to commence

18 on 6 May 2003.

19 Before the beginning of the trial, the Prosecution and Defence

20 presented the Trial Chamber with a joint motion for consideration of a

21 plea agreement between Momir Nikolic and the Prosecution on 6 May 2003.

22 After two days of plea hearings and an amendment to the plea agreement,

23 the Trial Chamber accepted Momir Nikolic's plea of guilt to one count of

24 crimes against humanity, namely, persecutions, punishable under Article

25 5(h) and Article 7(1) of the Statute, and entered a conviction thereupon.

Page 1684

1 Pursuant to the plea agreement, the Prosecution moved to dismiss

2 the remaining counts and they were subsequently dismissed. Additionally,

3 under the plea agreement, Momir Nikolic agreed to testify in other

4 proceedings before the Tribunal, including those trials related to

5 Srebrenica. In September 2003, Mr. Nikolic testified in the trial of his

6 two former co-accused for eight days.

7 A sentencing hearing was held between 27 to 29 October 2003, at

8 which seven live witnesses were heard, and the testimony of four witnesses

9 was accepted pursuant to Rule 92 bis.

10 As the guilty plea was made pursuant to a plea agreement, the

11 Trial Chamber has considered the use of plea agreements in cases of

12 serious violations of international humanitarian law. The Trial Chamber

13 finds that, on balance, guilty pleas pursuant to plea agreements may

14 further the work, the mandate of the Tribunal. The Trial Chamber further

15 finds, however, that based on the duties incumbent on the Prosecutor and

16 the Trial Chambers pursuant to the Statute of the Tribunal, the decision

17 of whether to enter into or accept plea agreements should be taken with

18 caution.

19 A written factual basis for the crime and for Mr. Nikolic's

20 participation in it was filed with the plea agreement. The factual basis

21 and the indictment, which Mr. Nikolic acknowledged to be true, forms the

22 factual basis upon which the Trial Chamber will determine sentence. The

23 facts described therein are as follows:

24 The crime of persecutions, as charged in count 5 of the

25 indictment, was carried out by the following means:

Page 1685

1 the murder of thousands of Bosnian Muslim civilians, including

2 men, women, children, and elderly persons;.

3 the cruel and inhumane treatment of Bosnian Muslim civilians,

4 including severe beatings at Potocari and in detention facilities in

5 Bratunac and Zvornik;

6 the terrorising of Bosnian Muslim civilians in Srebrenica and

7 Potocari;

8 the destruction of personal properties and effects belonging to

9 Bosnian Muslims;

10 and the forcible transfer of Muslims from the Srebrenica enclave.

11 The criminal acts were carried out on the civilian population who

12 fled Srebrenica enclave during the attack and the takeover by the Serbs.

13 In Potocari, women, children, and the elderly were separated from

14 the able-bodied men. While the men were detained, their wives and

15 children were placed on buses and forcibly transferred to Muslim-held

16 territory. This forcible transfer was accompanied by acts of terror,

17 humiliation, and utter cruelty.

18 The detained men were moved out of Potocari for execution.

19 Similarly, the men who had escaped from Srebrenica in the column were

20 captured and detained, pending execution. Along the route between

21 Bratunac and Zvornik, the names previously used to mark settlements and

22 communities or places of learning, culture, work, or geographic features

23 are now used to identify the killing fields: In Jadar River, Cerska

24 Valley, Kravica Warehouse, Petkovci School, Pilica Cultural Centre, and

25 the villages of Tisca and Orahovac. At one location, Branjevo Military

Page 1686

1 Farm, approximately 1.200 Bosnian Muslim men who had been captured from

2 the column were executed by automatic weapon fire. In total, over 7.000

3 men were murdered.

4 The Trial Chamber has considered the principle and the purpose of

5 punishment in light of the mandate of the Tribunal. It finds the

6 principle of sentencing derived from national systems, namely, deterrence,

7 retribution, and rehabilitation, are applicable on an international level;

8 the application and the purpose of each may, however, be different when

9 applied on international level.

10 Turning to sentencing factors, the Trial Chamber first considered

11 the gravity of the offence, bearing in mind that this required taking

12 account of particular circumstances of the case, as well as the form and

13 the degree of participation of Mr. Nikolic in the crimes.

14 The Trial Chamber observes that the crime of persecutions is

15 inherently serious. Its unique character is derived from the requirement

16 of a specific discriminatory intent, on account of which the crime is

17 regarded as a particularly serious offence. In this case, the gravity of

18 the offence is demonstrated by the persecutory acts by which Mr. Nikolic

19 has been convicted.

20 The crimes committed following the fall of Srebrenica are,

21 unfortunately, well known. The mass murder or forcible transfer of the

22 Muslim population from this part of Eastern Bosnia in slightly over one

23 week was committed with a level of the brutality and depravity not seen

24 previously in the conflict in the former Yugoslavia, which had already

25 cost too many lives.

Page 1687

1 Momir Nikolic was not unaware of the crime unfolding following the

2 fall of Srebrenica. Rather, he appeared to be right at the centre of

3 criminal activity as the operation spread from Potocari to Bratunac and on

4 to Zvornik. Momir Nikolic was present at Hotel Fontana during the three

5 meetings in which the fate of the Muslim population was discussed and

6 decided. He did not raise any objections to what he was told was the

7 plan: To deport Muslim women and children to Muslim-held territory, and

8 to separate, detain, and ultimately kill the Muslim men. Rather than

9 resist, Momir Nikolic recommended possible detention and execution sites.

10 On 12 July 1995, Momir Nikolic was in Potocari. He saw with his

11 own eyes the separation of men from their families; he heard the cries of

12 children as they saw their fathers taken away; he saw the fear in the eyes

13 of women pushed onto buses as they knew that the fate of their fathers,

14 husbands, and sons was beyond their control. He has described himself as

15 the coordinator of various units operating in Potocari, but he did nothing

16 to stop beatings, the humiliation, the separations, or the killings.

17 Mr. Nikolic returned to Potocari on 13 July 1995, and by his own

18 account, he established that "all was going well." The deportations

19 continued, as did the separations. He busied himself with security

20 arrangements for General Mladic, and when they met, reported that "there

21 were no problems." On the same day, Momir Nikolic saw columns of

22 prisoners being marched to various sites to await their death. Later that

23 night, Momir Nikolic was present when three other persons involved in the

24 crimes openly discussed the killing operation. The intricate details of

25 the operation were discussed, in order to facilitate the execution of the

Page 1688












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 1689

1 plan. Momir Nikolic was an integral part of the implementation of the

2 plan, in order that the aim of the operation were achieved.

3 Further, in the months subsequent to the executions, Momir Nikolic

4 coordinated the exhumation and the reburial of Muslim bodies. This

5 ongoing support proved valuable in that crucial evidence was destroyed,

6 and has prevented many families knowing the whereabouts of their missing

7 family members.

8 The Trial Chamber finds that a sentence in the range of 20 years

9 to life imprisonment to be appropriate, based solely on the gravity of the

10 crime for which Momir Nikolic is convicted, his role and his participation

11 in the commission of that crime, and having taken into consideration the

12 sentencing practices in the former Yugoslavia as well as the sentencing

13 practices of this Tribunal. The Trial Chamber will now consider whether

14 any aggravating or mitigating circumstances exist in this case and, if so,

15 the effect of any such circumstances on the determination of an

16 appropriate sentence for Momir Nikolic.

17 The Prosecution submits that three aggravating factors in this

18 case should be considered by the Trial Chamber:

19 First: The position of authority of Momir Nikolic; secondly, the

20 role of Momir Nikolic; and thirdly, the vulnerability of the victims and

21 the depravity of the crimes.

22 The Nikolic Defence submits that there were no aggravating

23 circumstances, as the aggravating factors submitted by the Prosecution are

24 subsumed in the overall gravity of the offence.

25 The Trial Chamber finds that Momir Nikolic was in a position of

Page 1690

1 authority, as chief of security and intelligence. While his tasks largely

2 required implementing rather than giving orders, Momir Nikolic directed

3 the military police of Bratunac Brigade, as well as coordinated other

4 units, and this was of significance to the implementation and completion

5 of the underlying criminal acts committed following the attack on

6 Srebrenica. The role that Nikolic played and the functions that he

7 performed, while not in the capacity of a commander, were of significant

8 importance to the overall murder operation that was going on.

9 The Trial Chamber finds that depravity of the crimes is subsumed

10 in the overall gravity of the offence.

11 The Trial Chamber takes particular note of the vulnerability of

12 the victims, who included women, children, and the elderly, as well as

13 captured men. They were all in a position of helplessness and were

14 subject to cruel treatment at the hands of their captors. In this

15 situation, the Trial Chamber finds this to be an aggravating factor in the

16 commission of the criminal acts.

17 The Prosecution submits that mitigating circumstances that the

18 Trial Chamber should consider are the guilty plea, acceptance of

19 responsibility, remorse, cooperation with the Office of the Prosecutor,

20 and prior good character.

21 In addition to these factors, the Nikolic Defence further submits

22 that the issue of voluntary surrender, comportment in the UNDU, and the

23 personal circumstances are mitigating factors which entitle Momir Nikolic

24 to a significant reduction in sentence.

25 Taking into consideration of these considerations, the Trial

Page 1691

1 Chamber finds that Momir Nikolic's guilty plea is an important mitigating

2 factor due to its contribution to establishing the truth, promoting

3 reconciliation, and because of Momir Nikolic's acceptance of his

4 individual criminal responsibility for his role in the crime of

5 persecution. The Trial Chamber also considers Momir Nikolic's guilty plea

6 as a mitigating factor because it spared witnesses being required to come

7 and testify about painful and traumatic events. This is particularly

8 appreciated in the case of Srebrenica, where there are numerous

9 indictments brought by the Prosecution, and further trials will likely

10 require the presence of those witnesses.

11 Finally, the Trial Chamber takes note of the fact that other

12 accused have been given credit for pleading guilty before the start of

13 trial or at an early stage of the trial because of saving of Tribunal's

14 resources. The Trial Chamber appreciates this saving of Tribunal's

15 resources. The Trial Chamber finds, however, that in cases of this

16 magnitude, where the Tribunal has been entrusted by the Security Council

17 and, by extension, the international community, to bring justice to former

18 Yugoslavia through criminal proceedings that are fair, in accordance with

19 the international human rights standards, and accord due regard for the

20 rights of the accused and the interests of victims, the saving of

21 resources cannot be given undue consideration of importance.

22 In considering cooperation with the Prosecution, the Trial Chamber

23 notes that Mr. Nikolic has met with the Prosecution, testified in cases as

24 the Prosecution's witness, and has provided the Prosecution with

25 information previously unknown to it. The Trial Chamber observes that the

Page 1692

1 Prosecution considers that Mr. Nikolic has cooperated fully. The Trial

2 Chamber has also considered the truthfulness of Mr. Nikolic's testimony in

3 the Blagojevic trial in assessing cooperation with the Prosecution. The

4 Trial Chamber takes into consideration numerous instances where the

5 testimony of Momir Nikolic is evasive and finds this to be an indication

6 that his willingness to cooperate does not translate into being fully

7 forthcoming in relation to all the events, given his position and

8 knowledge.

9 The Trial Chamber has carefully considered Momir Nikolic's

10 expression of remorse and his apology to the victims, their families, and

11 the Bosniak people for his participation in the crime of persecutions.

12 The Trial Chamber recalls Momir Nikolic's explanation of his reason for

13 pleading guilty, as well as his related reason for providing the

14 Prosecution with false information during the plea negotiations.

15 Recalling that the standard of mitigating factors is on the balance of

16 probabilities, the Trial Chamber finds Momir Nikolic's expression of

17 remorse is a mitigating factor but cannot accord substantial weight to

18 this factor.

19 Additionally, the Trial Chamber has established the following

20 mitigating circumstances: Momir Nikolic did not discriminate prior to the

21 war and was a respected member of his community; Momir Nikolic has behaved

22 properly while in detention; and Momir Nikolic's family circumstances.

23 Momir Nikolic has accepted responsibility for the criminal acts he

24 committed in furtherance of the commission of these crimes. He has

25 offered his cooperation to the Prosecution. He has expressed his remorse

Page 1693

1 to the victims. Momir Nikolic's guilty plea will likely have some

2 positive impact on all the communities in the former Yugoslavia and may

3 have opened avenues for reconciliation. The Trial Chamber has taken those

4 factors into consideration in determining the appropriate sentence for

5 him.

6 As already discussed, Momir Nikolic was an active participant in

7 the crimes committed in Potocari, Bratunac, and Zvornik. He did not try

8 to avoid his official duties during those fateful days or remain on the

9 sidelines; by his own account, he appears to have taken a very active,

10 even proactive, role in ensuring that the operation went forward and was,

11 in his words, "successful."

12 The Trial Chamber has taken into consideration the crime committed

13 in July through November of 1995, for which Momir Nikolic has been

14 convicted, as reflected in the charge of persecutions, and the degree and

15 form of Momir Nikolic's participation in the commission of those crimes.

16 The Trial Chamber has accorded appropriate weight to each aggravating and

17 mitigating factor. As the Trial Chamber has continually stressed to both

18 parties and to Mr. Nikolic, the Trial Chamber is not bound by their

19 recommendations relating to the sentence. The Trial Chamber has carefully

20 considered the submissions, and the recommended sentence, by each party,

21 and finds, however, it cannot accept the sentences recommended by either

22 the Defence or the Prosecution; neither sentence adequately reflects the

23 totality of the criminal conduct for which Momir Nikolic has been

24 convicted.

25 Well, Mr. Nikolic, would you please stand up.

Page 1694

1 Having given due weight to factors set out, the Trial Chamber

2 hereby sentences you to a period of 27 years' imprisonment. You are

3 entitled to 610 days credit for the time you have served in detention as

4 of the date of this sentencing judgement, together with such additional

5 time as you may serve pending the determination of any appeal of this

6 sentencing judgement.

7 You may sit down, please.

8 Having said that, the hearing is adjourned.

9 --- Whereupon the sentencing adjourned at 3.34 p.m.