1 Thursday, 27 February 2003
2 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 3.00 p.m.
6 JUDGE MAY: Yes, let the registrar call the case.
7 THE REGISTRAR: Good afternoon, Your Honours. This is case number
8 IT-00-39 & 40\1-S, the Prosecutor versus Biljana Plavsic.
9 JUDGE MAY: The appearances, please.
10 MR. HARMON: Good afternoon, Mr. President, Your Honours, my
11 learned friends from the Defence. My name is Mark Harmon. To my right is
12 Mr. Alan Tieger, and we will represent the Prosecutor in these
13 proceedings. Thank you.
14 MR. PAVICH: Good afternoon, Your Honours. Robert Pavich and
15 Eugene O'Sullivan on behalf of Biljana Plavsic.
16 JUDGE MAY: Thank you.
17 This hearing is for the Trial Chamber to deliver judgement in this
18 case. What follows is a summary of the written judgement and forms no
19 part of it. That judgement is available today.
20 At a hearing on the 2nd of October of last year, the accused
21 pleaded guilty to Count 3 of the indictment, persecutions, a crime against
22 humanity. The accused's plea was entered pursuant to a Plea Agreement
23 made between the parties. In the agreement, the Prosecutor agreed to move
24 to dismiss the remaining counts of the indictment following the accused's
25 plea of guilty, and they were subsequently dismissed. A written Factual
1 Basis for the crime and Mrs. Plavsic's participation in it was filed with
2 the Plea Agreement.
3 A Sentencing Hearing was held between the 16th and 18th of
4 December. At the end of the hearing, the Trial Chamber adjourned the case
5 to consider sentence.
6 The facts were as follows: Count 3 alleges that between the 1st
7 of July, 1991, and the 30th of December, 1992, the accused, acting
8 individually and in concert with others in a joint criminal enterprise
9 planned, instigated, ordered, and aided and abetted persecutions of the
10 Bosnian Muslim, Bosnian Croat, and other non-Serb populations of 37
11 municipalities in Bosnia and Herzegovina.
12 Mrs. Plavsic is now aged 72 years, having been born on the 7th of
13 July, 1930, in Tuzla. She had a distinguished academic career as a
14 Professor of Natural Sciences and Dean of the faculty in the University of
15 Sarajevo. She was not involved in politics until she joined the Serbian
16 Democratic Party in July 1990. However, she very soon rose to become a
17 prominent member of the party, and was elected as a Serbian representative
18 to the Presidency of the Socialist Republic of Bosnia and Herzegovina on
19 the 11th of November, 1990, until December 1992. The accused was also
20 active in the Presidency of the Serbian Republic of Bosnia and Herzegovina
21 and then became a member of the collective and expanded Presidencies of
22 Republika Srpska.
23 In commenting on the individual roles of the participants in this
24 offence, the Factual Basis states that numerous individuals participated
25 in devising and executing the persecutions, but there were differences
1 both as to their knowledge of the details and their participation in the
2 execution of the objective. For her part, Mrs. Plavsic embraced and
3 supported the objective and contributed to achieving it, but she did not
4 participate in its conception and planning had a lesser role in its
5 execution than others.
6 The accused supported the objective in various different ways by:
7 - serving as co-president, thereby supporting and maintaining the
8 government and military at local and national levels through which the
9 objective was implemented;
10 - encouraging participation by making public pronouncements that force was
11 justified because certain territories within Bosnia and Herzegovina were
12 Serbian by right and Serbs should fear genocide being committed against
13 them by Bosnian Muslims and Bosnian Croats; and
14 - inviting and encouraging paramilitaries from Serbia to assist Bosnian
15 Serb forces in effecting ethnic separation by force.
16 The Serb forces, collaborating with the JNA, the MUP of Serbia and
17 paramilitary units to implement the objective of ethnic separation by
18 force, committed the persecutions in a campaign that included:
19 - killings during attacks on towns and villages;
20 - cruel and inhumane treatment during and after the attacks;
21 - forced transfer and deportation; unlawful detention and killing, forced
22 labour and use of human shields;
23 - cruel and inhumane treatment and inhumane conditions in detention
25 - destruction of cultural and sacred objects; and
1 - plunder and wanton destruction.
2 The Bosnian Serb leadership, including Mrs. Plavsic, ignored the
3 allegations of crimes committed by their forces. Mrs. Plavsic disregarded
4 reports of widespread ethnic cleansing and publicly rationalised and
5 justified it. She was aware that the key leaders of the Serbian Republic
6 of Bosnia and Herzegovina ignored these crimes despite the power to
7 prevent and punish them.
8 Turning to the sentencing factors. The Trial Chamber first
9 considers the gravity of the offence, bearing in mind that this requires a
10 consideration of the particular circumstances of the case, as well as the
11 form and the degree of the participation of the accused in the crime.
12 The Prosecution submitted that the scale of the campaign in which
13 the accused participated was massive and over a vast area, with hundreds
14 and thousands expelled and many killed. The campaign was conducted with
15 particular brutality and cruelty, including torture and sexual violence.
16 The Trial Chamber accepts that this is a crime of the utmost
17 gravity, involving as it does a campaign of ethnic separation which
18 resulted in the death of thousands and the expulsion of thousands more in
19 circumstances of great brutality. The gravity is illustrated by:
20 - the massive scope and extent of the persecutions;
21 - the numbers killed, deported, and forcibly expelled;
22 - the grossly inhumane treatment of detainees; and
23 - the scope of the wanton destruction of property and religious
25 Dealing next with aggravating factors, the Prosecution identifies
1 three. First, the leadership position of the accused; secondly, the
2 vulnerability of the victims; and thirdly, the depravity of the crimes to
3 which the victims were subjected.
4 The Trial Chamber accepts that the superior position of the
5 accused is an aggravating factor in the case. The accused was not in the
6 very first rank of the leadership. Others occupied that position. She
7 did not conceive the plan which led to this crime, and had a lesser role
8 in its execution than others. Nonetheless, Mrs. Plavsic was in the
9 Presidency, the highest civilian body, during the campaign and encouraged
10 and supported it by her participation in the Presidency and her
12 While the Trial Chamber accepts that the other factors identified
13 by the Prosecutor are capable of amounting to aggravating factors, it
14 considers that in the circumstances of this case, these factors are
15 essentially subsumed in the overall gravity of the offence. Accordingly,
16 the Trial Chamber will not treat them as aggravating factors separately.
17 The Prosecution submitted that the leadership role in such a
18 campaign is clearly the sort of crime for which a sentence of life
19 imprisonment is fitting, and at the Sentencing Hearing, the Prosecutor
20 said that, in the absence of a guilty plea, a sentence of imprisonment for
21 the remainder of the life of an accused would have been appropriate.
22 The Trial Chamber, therefore, has to determine an appropriate
23 sentence for an accused who was in the high leadership position described
24 and was involved in crimes of the utmost gravity. However, the Trial
25 Chamber is unable to accept the submission of the Prosecution that the
1 severest sentence which this International Tribunal is capable of passing
2 would be appropriate in the absence of a plea of guilty. On the other
3 hand, the Trial Chamber does accept that misplaced leniency would not be
4 fitting and that a substantial sentence of imprisonment is called for.
5 Turning next to the mitigating circumstances. There is in this
6 case substantial mitigation. Indeed, the Prosecution acknowledges that
7 Mrs. Plavsic has undertaken unprecedented steps to mitigate the crime
8 against humanity for which she is responsible. The parties submitted that
9 the relevant mitigating circumstances include:
10 - the entry of a guilty plea and acceptance of responsibility;
11 - remorse;
12 - voluntary surrender;
13 - post-conflict conduct;
14 - previous good character; and
15 - age.
16 It has not been disputed that these circumstances, together with
17 reconciliation, are the relevant mitigating circumstances for the Trial
18 Chamber to consider. Before considering them, it is necessary to consider
19 the law as it applies to mitigating circumstances.
20 An accused's substantial cooperation with the Prosecutor is the
21 only mitigating circumstance that is expressly mentioned in the Rules.
22 The determination as to whether an accused's cooperation has been
23 substantial depends on the extent and quality of the information he or she
25 In the present case, the Prosecution asserted that there has been
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 no such cooperation. On the other hand, the Defence submitted that the
2 accused has provided substantial cooperation by her plea of guilty.
3 As noted, cooperation with the Prosecutor is a mitigating
4 circumstance, but it does not follow that failure to do so is an
5 aggravating circumstance. Therefore, the accused's unwillingness to give
6 evidence is not a factor to be taken into account in determining sentence.
7 A Trial Chamber has the discretion to consider any other factors
8 which it considers to be of a mitigating nature.
9 Dealing first with the guilty plea, remorse, and reconciliation.
10 The accused entered a guilty plea before the commencement of trial, and
11 this is to be regarded as a circumstance in mitigation of sentence.
12 The Trial Chamber accepts the statement by the accused during the
13 Sentencing Hearing, together with expressions in her earlier statement in
14 support of the motion to change her plea, as an expression of remorse to
15 be considered as part of the mitigating circumstances connected with a
16 guilty plea. Indeed, it may be argued that by her guilty plea,
17 Mrs. Plavsic has already demonstrated remorse.
18 This, together with the substantial saving of international time
19 and resources as a result of a plea of guilty before trial, entitles the
20 accused to a discount in the sentence which would otherwise have been
21 appropriate. However, there is a further and significant circumstance to
22 be considered, namely the role of the guilty plea of the accused in
23 establishing the truth in relation to the crimes and furthering
24 reconciliation in the former Yugoslavia.
25 This theme was first sounded in Mrs. Plavsic's statement in
1 support of her change of plea in which she referred to the need for
2 acknowledgement of the crimes committed during the war in Bosnia and
3 Herzegovina as a necessary step towards peace and reconciliation and her
4 hope that her acceptance of responsibility would enable her people to
5 reconcile with their neighbours. She concluded the statement: To achieve
6 any reconciliation or lasting peace in Bosnia and Herzegovina, "serious
7 violations of humanitarian law during the war must be acknowledged by
8 those who bear responsibility - regardless of their ethnic group. This
9 acknowledgement is an essential first step."
10 The Trial Chamber accepts that acknowledgement and full disclosure
11 of serious crimes are very important when establishing the truth in
12 relation to such crimes. This, together with acceptance of responsibility
13 for the committed wrongs, will promote reconciliation. In this respect,
14 the Trial Chamber concludes that the guilty plea of Mrs. Plavsic and her
15 acknowledgement of responsibility, particularly in the light of her former
16 position, should promote reconciliation in Bosnia and Herzegovina and the
17 region as a whole.
18 The Trial Chamber accordingly gives significant weight to the plea
19 of guilty by the accused, as well as her accompanying expressed remorse
20 and the positive impact on reconciliation.
21 Next, the Trial Chamber accepts that the voluntary surrender of
22 the accused is a mitigating circumstance for the purpose of sentence.
23 Turning to the accused's conduct after the conflict. The
24 Prosecution accepted that Mrs. Biljana Plavsic, as President of Republika
25 Srpska, demonstrated considerable support for the Dayton Agreement after
1 the cessation of hostilities in Bosnia and Herzegovina. It also accepted
2 that, in that position, the accused also attempted to remove obstructive
3 officials from office and contributed significantly to the advancement of
4 the Dayton peace process under difficult circumstances in which she
5 manifested courage.
6 Testimony about the accused's post-conflict conduct was given at
7 the Sentencing Hearing. Thus, Dr. Madeleine Albright described the
8 accused as the vehicle in the Republika Srpska for making sure that the
9 Dayton Agreement was carried out. "She stood up for that at times when it
10 was very difficult, when there were those who wanted to destroy the Dayton
12 Mr. Robert Frowick said that he thought of the accused as
13 "attacking corruption, injustice, and becoming the champion within
14 Republika Srpska of a struggle against criminality."
15 Likewise, Mr. Carl Bildt described the accused as courageous in
16 supporting peace implementation, a firm supporter of constitutional rule,
17 who "took great personal risk with that."
18 The fact that these witnesses, all of high international
19 reputation, came forward and gave such evidence adds much weight to the
20 plea in mitigation put forward in this regard. The Trial Chamber is
21 satisfied that Mrs. Plavsic was instrumental in ensuring that the Dayton
22 Agreement was accepted and implemented in Republika Srpska. As such, she
23 made a considerable contribution to peace in the region and is entitled to
24 pray it in aid in mitigation of sentence. The Trial Chamber gives it
25 significant weight.
1 Dealing next with the age of the accused. The Trial Chamber
2 rejects the Defence's contention that any sentence in excess of 8.2 years
3 is tantamount to life imprisonment and would constitute inhumane or
4 degrading punishment. Neither in the Statute nor in international human
5 rights law is there any prohibition against the imposition of a sentence,
6 including a life sentence, on an offender of advanced age. The European
7 Court on Human Rights has held that in certain circumstances, the
8 detention of an elderly person over a lengthy period may raise the issue
9 of the prohibition against inhumane and degrading treatment. Any such
10 treatment must attain a minimum level of severity to fall within the scope
11 of Article 3 of the European Convention on Human rights. However, regard
12 is to be had to the particular circumstances of each specific case. In
13 the instant case, the Trial Chamber can find no such relevant
14 circumstances. The medical report submitted by the accused does not
15 indicate that she is suffering from any condition which would prevent the
16 imposition of a prison sentence.
17 The Trial Chamber is also not persuaded by the Defence submission
18 that a calculation of the accused's life expectancy is a crucial factor in
19 determining sentence. However, the Trial Chamber considers that it should
20 take account of the age of the accused and does so for two reasons.
21 First, physical deterioration associated with advanced years makes serving
22 the same sentence harder for an older than a younger accused. Second, an
23 offender of advanced years may have little worthwhile life left upon
25 The Trial Chamber prefers to determine an appropriate sentence
1 corresponding to the gravity of the offence, taking into account the age
2 and the circumstances of the accused. For these reasons, the Trial
3 Chamber considers as a mitigating factor the advanced age of the accused,
4 and in doing so, it takes into account the medical report filed on her
6 Consequently, the Trial Chamber finds that the following are the
7 relevant substantial mitigating circumstances in this case:
8 - guilty plea, together with remorse and reconciliation;
9 - voluntary surrender;
10 - post-conflict conduct; and
11 - age.
12 To each of these circumstances, the Trial Chamber attaches weight.
13 In particular, the Trial Chamber attaches great weight to Mrs. Plavsic's
14 guilty plea and post-conflict conduct. Together, these circumstances make
15 a formidable body of mitigation.
16 During the closing arguments, the Prosecution submitted that the
17 Trial Chamber's task was to determine a sentence which addresses the
18 conduct of the accused not only towards the immediate victims but also
19 towards the whole of mankind in a campaign of persecution which destroyed
20 countless lives and communities.
21 While accepting that the breadth of these crimes justifies the
22 submission made by the Prosecution, the Trial Chamber also has in mind
23 that these crimes did not happen to a nameless group but to individual
24 men, women, and children who were mistreated, raped, tortured and killed.
25 This consideration and the fact that this appalling conduct was repeated
1 so frequently calls for a substantial sentence of imprisonment. The Trial
2 Chamber has already found this to be a crime of the utmost gravity. That
3 is the starting point for determination of sentence.
4 Furthermore, the seriousness of the offence is aggravated, as the
5 Trial Chamber finds, by the senior leadership position of the accused.
6 Instead of generally preventing or mitigating the crimes, she encouraged
7 and supported those responsible. Any sentence must reflect this factor.
8 The Prosecution submits that an appropriate sentence in this case
9 is a term of imprisonment of not less than 15 years and not more than 25
11 The Trial Chamber considers that the Prosecution in its
12 submissions as to sentence has given insufficient weight to the age of the
13 accused and the significant mitigating factors connected with her plea of
14 guilty and post-conflict conduct.
15 The Defence, on the other hand, has made no recommendation as to
16 an appropriate sentence, submitting that since the life expectancy of the
17 accused is eight years, any sentence beyond that would amount to life
18 imprisonment and would be inappropriate. The Trial Chamber has already
19 held that the reference to life expectancy is irrelevant. Is also
20 considers that a sentence of eight years' imprisonment would fail to meet
21 the gravity of this offence.
22 The Trial Chamber has to pass sentence on a 72-year-old former
23 president for her participation in a crime of the utmost gravity. On the
24 other hand, as the Trial Chamber has found, there are very significant
25 mitigating circumstances, in particular the guilty plea of the accused and
1 her post-conflict conduct. Nonetheless, undue leniency would be
2 misplaced. No sentence which the Trial Chamber passes can fully reflect
3 the horror of what occurred or the terrible impact on thousands of
5 Let the accused stand.
6 Biljana Plavsic, having given due weight to the factors set out,
7 the Trial Chamber sentences you to a period of 11 years' imprisonment.
8 You have been detained in the Detention Unit for a total of 245
9 days to date. You are entitled to credit for this period of time served.
10 The Court will rise.
11 --- Whereupon the Sentencing Hearing adjourned
12 at 3.34 p.m.