Tribunal Criminal Tribunal for the Former Yugoslavia

Page 1559

1 Wednesday, 10 December 2003

2 [Judgement]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 3.01 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-02-60/2-S, the Prosecutor versus Dragan Obrenovic.

9 JUDGE LIU: Thank you very much.

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

11 For the Prosecution.

12 MR. McCLOSKEY: Yes, good afternoon, Your Honours, counsel. My

13 name is Peter McCloskey, and with me are Stefan Waespi, Ann Davis, and

14 Janet Stewart.

15 JUDGE LIU: Thank you. For the Defence.

16 MR. WILSON: Good afternoon, Your Honour. David Wilson and

17 Dusan Slijepcevic for Mr. Obrenovic, the accused in the case.

18 JUDGE LIU: Thank you.

19 Mr. Obrenovic, can you hear the proceedings in a language that you

20 understand?

21 THE ACCUSED OBRENOVIC: [Interpretation] Yes, I can, Your Honours.

22 JUDGE LIU: Thank you very much. If there's any problem, please

23 don't hesitate to let us know. Thank you.

24 Good afternoon, ladies and gentlemen. This hearing is for the

25 Trial Chamber to deliver judgement in this case. What follows is a

Page 1560

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

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

3 end of this hearing.

4 We are here today to sentence Dragan Obrenovic for his

5 participation in the crime of persecutions committed following the fall of

6 Srebrenica enclave in July 1995.

7 Mr. Obrenovic, a 40-year-old Bosnian Serb was indicted by the

8 Office of the Prosecutor on 9th April 2001 for crimes including complicity

9 in genocide, persecutions, and extermination. He was arrested by SFOR on

10 15th April 2001 and transferred to the Tribunal where he has remained in

11 detention at the United Nations Detention Unit.

12 Dragan Obrenovic was jointly charged with three other accused, and

13 his trial commenced on the 14th May 2003. Upon the examination-in-chief

14 of the first Prosecution witness, the Trial Chamber was seized with the

15 joint motion for consideration of a plea agreement between

16 Dragan Obrenovic and the Prosecution. A hearing was held to address the

17 joint motion on 21st May 2003, at the conclusion of which the

18 Trial Chamber accepted Dragan Obrenovic's plea of guilt to one count of

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

20 5(H) and Articles 7(1) and 7(3) of the Statute and entered a conviction

21 thereupon.

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

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

24 under the plea agreement Dragan Obrenovic agreed to testify in other

25 proceedings before the Tribunal, including those trials related to

Page 1561

1 Srebrenica. In October 2003, Mr. Obrenovic testified in the trials of his

2 two former co-accused for seven days.

3 A sentencing hearing was held on 30th October 2003 at which four

4 live witnesses were heard on behalf of the Defence. The testimony of an

5 additional nine witnesses was admitted on behalf of the Defence and five

6 witnesses on behalf of the Prosecution pursuant to Rule 92 bis.

7 A written factual basis for the crime and for Mr. Obrenovic's

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

9 and indictment which Mr. Obrenovic acknowledged to be true forms the

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

11 facts described therein are as follows:

12 The crime of persecutions as charged in count 5 of the indictment

13 was carried out by the following means:

14 The murder of thousands of Bosnian Muslim civilians, including

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

16 The cruel and inhumane treatment of Muslim civilians, including

17 beating of civilians in schools and other detention centres in the Zvornik

18 area on 13th through 16th July 1995;.

19 The terrorisation of Muslim civilians from Srebrenica and Potocari

20 from 13th to 16th July 1995; and.

21 The destruction of personal property and effects of Muslim

22 civilians from Srebrenica who were detained and murdered in the Zvornik

23 area.

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

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

Page 1562

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

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

3 communities or places of learning, culture, and work or geographic

4 features are now used to identify killings fields: Jadar River,

5 Cerska Valley, Kravica Warehouse, Petkovci school, Pilica Cultural Centre,

6 and the villages of Tisca and Orahovac. At one location,

7 Branjevo Military Farm, approximately 1.200 Bosnian Muslim men who had

8 been captured from the column were executed by automatic weapon fire. In

9 total, over 7.000 men were murdered.

10 The Trial Chamber has considered the principles and purpose of

11 punishment in light of the mandate of the Tribunal. It finds that

12 principles of sentencing derived from national systems, namely deterrence,

13 retribution and rehabilitation are applicable on the international level;

14 the application and purpose for each may, however, be different when

15 applied on the international level.

16 The Trial Chamber recalls that a sentence is based on individual

17 criminal responsibility. No individual should be punished for the

18 criminal liability of others, and no case should be viewed as representing

19 the final accounting for a particular crime, especially crimes such as

20 those committed following the fall of Srebrenica for which numerous people

21 may be held criminally liable. Each person must only be called to answer

22 and to be punished for his particular share of the criminal activity.

23 Turning to sentencing factors, the Trial Chamber first considered

24 the gravity of the offence, bearing in mind that this requires taking

25 account of the particular circumstances of the case, as well as the form

Page 1563

1 and degree of participation of Mr. Obrenovic in the crime.

2 The Trial Chamber finds that the crime of persecution is

3 inherently serious. Its unique character is derived from a requirement of

4 specific discriminatory intent, on account of which the crime is regarded

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

6 offence is demonstrated by the persecutory acts for which Dragan Obrenovic

7 has been convicted.

8 The crimes committed following the fall of Srebrenica are,

9 unfortunately, well known. The mass murder or forced transfer of the

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

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

12 previously in the conflict of the former Yugoslavia which had already cost

13 so many lives.

14 Dragan Obrenovic was deputy commander and chief of staff of

15 Zvornik Brigade - the brigade responsible for the municipality in which

16 the vast majority of the executions took place. During the two days when

17 many of these executions took place, he was the acting commander of the

18 Zvornik Brigade. Dragan Obrenovic, as he has admitted, took actions which

19 furthered the killing operation: He released seven his men to"assist"

20 with the prisoners - prisoners that he knew were brought to Zvornik to be

21 shot. He approved the release of two military operators from the line,

22 knowing that their task was the burial of the executed prisoners. For

23 these actions, Dragan Obrenovic bears criminal responsibility.

24 The Trial Chamber has heard that Dragan Obrenovic was a man of

25 exceptional character and a soldier - an officer - whose subordinates

Page 1564

1 "would have followed him down the barrel of a cannon." Although there

2 were few direct actions that Dragan Obrenovic took to further the murder

3 operations, his inaction during these critical, devastating days itself

4 had an impact on those working with, and under, him. Dragan Obrenovic

5 spent most of these fateful days in the battlefield, but he was aware of

6 the larger murder operation taking place. Through his failure to prevent

7 his subordinates from participating in the detention, murder, and burial

8 of Bosnian Muslim men, Dragan Obrenovic bears criminal responsibility.

9 Through his failure to punish his subordinates after they committed crimes

10 which he knew or had reason to know about, Dragan Obrenovic bears criminal

11 responsibility.

12 Recognising the various forms of criminal liability for which

13 Dragan Obrenovic has accepted responsibility, the Trial Chamber finds

14 Dragan Obrenovic's liability stems primarily, though not exclusively, from

15 his responsibility as a commander.

16 The Prosecution submits that three aggravating factors in this

17 case should be considered by the Trial Chamber: First, the position of

18 leadership of Dragan Obrenovic; second, the role of Dragan Obrenovic as

19 deputy commander; and thirdly, the vulnerability of the victims and the

20 depravity of the crimes.

21 The Trial Chamber finds Dragan Obrenovic was in a position of

22 authority as acting commander and deputy commander of Zvornik Brigade. As

23 Dragan Obrenovic's criminal liability arises in large measures from his

24 responsibility as commander, pursuant to Article 7(3) of the Statute, the

25 Trial Chamber finds it would be inappropriate to use the same conduct to

Page 1565

1 establish both liability and aggravating circumstances in this case.

2 The Trial Chamber found that depravity of the crimes is subsumed

3 in the overall gravity of the offence.

4 The Trial Chamber takes particular note of the vulnerability of

5 the victims. They were all in a position of helplessness and were subject

6 to cruel treatment at the hands of their captors. In this situation, the

7 Trial Chamber found this to be an aggravating factor in the commission of

8 the crimes.

9 The Prosecution submits that the mitigating circumstances are the

10 guilty plea, acceptance of responsibility, remorse, cooperation with the

11 Office of the Prosecutor, and previous good character. In addition to the

12 factors listed by the Prosecution, the Defence submits that the fostering

13 of reconciliation and Dragan Obrenovic's offer to voluntarily surrender

14 should be considered mitigating factors in this case.

15 The Trial Chamber finds Dragan Obrenovic's guilty plea and

16 acceptance of responsibility is a significant factor in mitigation of the

17 sentence due to his contribution to establishing the truth, promoting

18 reconciliation, and because of Dragan Obrenovic's unreserved and

19 unqualified acceptance of his individual criminal responsibility for his

20 role in the crime of persecutions. The Trial Chamber also considers

21 Dragan Obrenovic's guilty plea as a mitigating factor because it spares

22 witnesses from being required to come and testify about painful and

23 traumatic events. This is particularly appreciated in the case of

24 Srebrenica where there are numerous indictments brought by the

25 Prosecution, and the future trials will likely require the presence of

Page 1566

1 these witnesses.

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

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

4 trial or at an early stage of the trial because of the savings of

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

6 Tribunal resources. The Trial Chamber finds, however, that in cases of

7 this magnitude where the Tribunal has been entrusted by the Security

8 Council - and by extension, the international community - to bring justice

9 to the former Yugoslavia through criminal proceedings that are fair, in

10 accordance with international human rights standards, and accord due

11 regard for the rights of the accused and the interests of victims, the

12 saving of resources cannot be given undue consideration or importance.

13 The Trial Chamber has carefully considered Dragan Obrenovic's

14 expression of remorse and his apologies to the victims for his

15 participation in, what he described as "the horror of Srebrenica."

16 Through his statements and his actions, the Trial Chamber finds

17 Dragan Obrenovic is genuinely remorseful for his role in the crimes for

18 which he has been convicted, and seeks to atone for his criminal conduct.

19 Therefore, the Trial Chamber considers Dragan Obrenovic's remorse to be a

20 substantial mitigating factor in this case.

21 In considering cooperation with the Prosecution, the Trial Chamber

22 notes that the Prosecution acknowledges full cooperation from

23 Dragan Obrenovic. The Trial Chamber finds that Dragan Obrenovic provided

24 truthful testimonies and detailed informations in the Blagojevic trial

25 regarding his knowledge of the events related to Srebrenica and the VRS

Page 1567

1 military structure. The Trial Chamber agrees with the Prosecution that

2 Dragan Obrenovic answered each question as clearly and precisely as he

3 could, regardless of whether it was asked by the Prosecution, Defence

4 counsel, or the Trial Chamber. The Trial Chamber further notes that he

5 testified in Krstic Appeal Proceedings, and he has further agreed to

6 testify in other proceedings. In addition, he assisted the Prosecution by

7 providing it with numerous documents relevant for the Blagojevic case and

8 investigations in other cases. The Trial Chamber also finds that

9 Dragan Obrenovic cooperated with the Prosecution during the investigation

10 phase when he permitted the Prosecution to conduct a search of the

11 Zvornik Brigade property. The Trial Chamber finds substantial cooperation

12 with the Prosecution in this case to be a significant mitigating

13 circumstance.

14 Based on the evidence presented, the Trial Chamber found that

15 prior to the war, Dragan Obrenovic was a highly respected member of the

16 community who did not discriminate against anybody. Furthermore, the

17 Trial Chamber found based on the testimony, that even during the war

18 Dragan Obrenovic provided help on an ongoing basis to several Muslims whom

19 he previously had not known. The Trial Chamber finds this to be an

20 important mitigating factor.

21 The Trial Chamber recognises these mitigating factors to be steps

22 taken towards rehabilitation.

23 Additionally, the Trial Chamber has established the following

24 mitigating circumstances: Offer of voluntary surrender; comportment in

25 the UNDU; and personal circumstances of the accused.

Page 1568

1 The criminal responsibility borne by Dragan Obrenovic for the

2 widespread or systematic crimes committed following the fall of Srebrenica

3 must reflect his individual criminal conduct -- his actions and his

4 omissions. Without diminishing in any way the criminal conducts of

5 Dragan Obrenovic, the Trial Chamber recalls that he is not alone in

6 bearing criminal responsibility for the massive crimes committed against

7 the Muslim population. He did not conceive of the murder operation. His

8 punishment must, therefore, reflect only his role and participation in the

9 crime of persecutions. Others, who should one day face judgement before

10 this Tribunal, will accordingly be judged and sentenced for their roles.

11 The Trial Chamber has found there exists in this case numerous

12 mitigating circumstances upon which the Trial Chamber has placed

13 substantial weight. Through his acceptance of responsibility and his

14 guilt, his sincere remorse, and his substantial cooperation with the

15 Prosecution, and his character, Dragan Obrenovic has mitigated his

16 sentence.

17 The Trial Chamber stresses that the allocation of significant

18 weight to the mitigating circumstances in this case should not be

19 interpreted as dismissal of the gravity of the offence for which

20 Dragan Obrenovic has been convicted. The Trial Chamber has considered the

21 scale of the crimes in which Dragan Obrenovic participated. The

22 Trial Chamber has further considered the impact of these crimes on the

23 victims and their survivors. Both are enormous.

24 As the Trial Chamber has stressed to both parties and to

25 Dragan Obrenovic, it is not bound by their recommendations relating to the

Page 1569

1 sentence. The Trial Chamber has carefully considered the submissions, and

2 the recommended sentence, by each party.

3 Mr. Obrenovic, please rise.

4 [The accused stands up]

5 JUDGE LIU: Having given due weight to factors set out, the

6 Trial Chamber hereby sentences you to a period of 17 years imprisonment.

7 You are entitled to 969 days credit for the time you have served in

8 detention as of the date of this sentencing judgement.

9 You may sit down, please.

10 [The accused sits down]

11 The hearing is adjourned.

12 --- Whereupon the hearing adjourned at 3.30 p.m.