Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                          Monday, 8 May 2006

 2                          [Open session]

 3                          [Sentencing]

 4                          [The accused entered court]

 5                          --- Upon commencing at 5.35 p.m.

 6            JUDGE VAN DEN WYNGAERT:  Good afternoon.  Can I ask the registrar

 7    to call the case, please?

 8            THE REGISTRAR:  This is case number IT-95-12-S.  The Prosecutor

 9    versus Ivica Rajic.

10            JUDGE VAN DEN WYNGAERT:  Thank you.

11            Mr. Rajic, can you hear me in a language that you can understand?

12            THE ACCUSED: [Interpretation] Yes, I can.

13            JUDGE VAN DEN WYNGAERT:  For the sake of the record, can we have

14    appearances please.  Prosecution first.

15            MR. SCOTT:  Yes, Your Honours, Mr. -- Madam President, excuse me,

16    Your Honours, Kenneth Scott for the Prosecution.  I am joined by

17    Ms. Josee D'Aoust.

18            JUDGE VAN DEN WYNGAERT:  Thank you very much.

19            For the Defence.

20            MS. KOSTA: [Interpretation] Yes, Your Honour.  Doris Kosta,

21    attorney-at-law.

22            JUDGE VAN DEN WYNGAERT:  The Trial Chamber is sitting today to

23    deliver its sentencing judgement in the case of Mr. Ivica Rajic.  The case

24    concerns his involvement in October 1993 in the attacks against the

25    village of Stupni Do, which caused the death of approximately 31 civilians

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 1    and the destruction of the village.  The sentencing judgement also

 2    concerns the rounding up of more than 250 Muslim men in Vares town and

 3    their subsequent inhumane treatments.

 4            What follows is only a summary of the written judgement and does

 5    not in any way form part of it.  The only authoritative account of the

 6    findings of the Trial Chamber is in the written judgement which will be

 7    available to the parties and the public today at the end of this session.

 8            The Trial Chamber will briefly set out the context and facts of

 9    the case before going on to review the factors which it took into

10    consideration in determining the sentence.

11            The contents and facts of the case.  Ivica Rajic was born on 5 May

12    1958 in the village of Jehovac in Bosnia and Herzegovina.  From May to at

13    least November 1993, he was a commander of the 2nd Operational Group of

14    the HVO's Central Bosnia operative zone based in Kiseljak.

15            On 29 August 1995, Judge Sidhwa confirmed the indictment issued

16    against Ivica Rajic.  Initially he was charged with two grave breaches of

17    the Geneva Conventions of 1949, wilful killing and destruction of

18    property, and two violations of the laws or customs of war, deliberate

19    attack on the civilian population, and wanton destruction of a village.

20            On 5 April 2003, Ivica Rajic was arrested and was subsequently

21    transferred to the detention unit of the Tribunal.  On 27 June 2003, he

22    appeared before the Tribunal and entered a plea of not guilty.

23            On 14 January 2004, the Prosecution filed an amended indictment

24    against Ivica Rajic.  It charged him with five grave breaches of the

25    Geneva Conventions, wilful killing, inhumane treatment, unlawful

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 1    confinement of a civilian, appropriation of property, and extensive

 2    destruction not justified by military necessity and carried out unlawfully

 3    and wantonly.  It also charged him with five violations of the laws or

 4    customs of war:  Murder, outrages upon personal dignity, cruel treatment,

 5    plunder of private or public property, and wanton destruction of a city or

 6    devastation not justified by military necessity.

 7            On 29 January 2004, Ivica Rajic pleaded not guilty to all 10

 8    counts of the amended indictment.

 9            More than a year and a half later, on 25 October 2005, Ivica Rajic

10    entered into a plea agreement with the Prosecution.  He agreed to plead

11    guilty to four of the 10 charges in the amended indictment:  Wilful

12    killing, inhumane treatment, extensive destruction and appropriation of

13    property, not justified by military necessity and carried out unlawfully

14    and wantonly.  All the charges constitute grave breaches of the Geneva

15    Conventions under Article 2 of the Statute of this Tribunal.  In exchange

16    for his guilty plea, his complete cooperation with the Prosecution and the

17    fulfillment of all his obligations under the plea agreement, the

18    Prosecution agreed to recommend to the Trial Chamber the imposition of "a

19    single combined sentence in the range of 12 to 15 years.  With the accused

20    able to argue for a sentence of the bottom of this range, 12 years, and

21    the Prosecution able to argue for a sentence at a top of this range, 15

22    years."

23            At a plea hearing on 26 October 2005, Ivica Rajic pleaded guilty

24    to these four counts.  The Trial Chamber accepted the plea after being

25    satisfied that it was voluntary, informed and unequivocal and that there

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 1    was a sufficient base for a conviction.

 2            The Prosecution and the Defence filed their respective sentencing

 3    briefs on 15 November and 16 December 2005.

 4            On 16 December 2005, the Trial Chamber issued a decision

 5    clarifying that a conviction had been entered on the basis Article 7(1) of

 6    the Statute only, thereby excluding any modes of responsibility under

 7    Article 7(3) of the Statute.

 8            The sentencing hearing was held on 7 April 2006.  The Prosecution

 9    and the Defence made submissions regarding the factors that they

10    recommended to the Trial Chamber's attention when determining the

11    sentence.  In addition, Ivica Rajic made an oral statement depicting the

12    broader context in which the crimes occurred and apologising to the

13    victims.

14            What follows is a summary of the facts which form the basis of

15    Ivica Rajic's conviction.  The facts are described in the factual basis

16    attached to the plea agreement.

17            On 21 October 1993, following an attack of the army of Bosnia and

18    Herzegovina in Vares municipality, the deputy head of HVO armed forced

19    ordered Ivica Rajic to cease control with the HVO forces of the situation

20    in Vares town and surrounding area.

21            On the same day, Ivica Rajic left the town of Kiseljak with

22    approximately 200 HVO soldiers.  He reached Vares the following day.  On

23    23 October 1993, the head of HVO Main Staff ordered Ivica Rajic "to sort

24    out the situation in Vares, showing no mercy towards anyone."  On the same

25    day, Ivica Rajic ordered HVO forces under his command to round up

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 1    military-aged Muslim men in Vares town and to detain them.  As a result,

 2    based on Ivica Rajic's order, HVO forces rounded up more than 250 Bosnian

 3    Muslim men and detained them in two schools, the Ivan Goran Kovacic school

 4    and the Vladimir Nazor school.  During the process of rounding up these

 5    men, the HVO commanders and soldiers entered houses, abused their

 6    inhabitants and robbed them of their valuables.  HVO soldiers also beat

 7    and abused male Bosnian Muslim detainees.  Still on the same day HVO

 8    soldiers  under Ivica Rajic's command attacked the village of Stupni Do.

 9    They also forced the civilians out of their homes and hiding places,

10    robbed them of their valuables, sexually assaulted Muslim women and

11    wilfully killed at least 37 Bosnia men, women, elderly persons and

12    children.  Among the men, there were approximately six combatants.  On 23

13    and 24 October, most of the village was destroyed.

14            The Trial Chamber will now give an overview of the factors that it

15    took into account in assessing the gravity of the crimes committed in

16    order to determine the sentence to be imposed on Ivica Rajic.  It will

17    then briefly discuss the aggravating and mitigating circumstances

18    applicable in the present case.

19            In determining the gravity of the crimes, the Trial Chamber took

20    into account the scale and brutality of the crimes, the role of Ivica

21    Rajic as well as the impact of the crimes upon the victims and their

22    families.

23            In relation to the scale and brutality of the crimes, the Trial

24    Chamber found that a sentence should reflect that the crimes were

25    committed on a large scale, were of a particularly violent nature and

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 1    caused severe pain to the victims and their relatives.  For example, the

 2    Trial Chamber noted that two elderly women, one of whom was invalid, was

 3    found burned inside a house and that seven members of the same Muslim

 4    family, two men, three women, and two children aged two and three years

 5    old, were found burned inside their shelter.

 6            However, in determining the gravity of these crimes, the Trial

 7    Chamber also took into account the general context in which they occurred.

 8    Indeed, according to the agreed facts between the parties, approximately

 9    35 defenders of the army of Bosnia and Herzegovina, who had dug trenches

10    in and around parts of Stupni Do, were present in the village during

11    the attack.

12            In this regard, the Trial Chamber rejects the submission of the

13    Prosecution according to which the crimes were serious because they were

14    widely broadcasted and received immediate attention from the UN Security

15    Council.  Indeed, the seriousness of a crime is not related to such

16    coverage or attention.  Where it is the case, the gravity of two identical

17    crimes would differ depending on their media coverage or international

18    attention.

19            As for Ivica Rajic's role, he was the commander of the HVO's

20    2nd Operational Group of the Central Bosnia operative zone based in

21    Kiseljak.  In this capacity, he played a significant role in ordering HVO

22    soldiers and commanders to attack Stupni Do and to round up more than 250

23    Muslim men in Vares town.  He did so, knowing the substantial likelihood

24    that criminal acts would ensue following his orders.  According to the

25    agreed facts between the parties, Ivica Rajic was indeed aware that the

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 1    soldiers had previously committed serious crimes against Bosnian Muslims,

 2    including rape, murder, destruction of property, arbitrary arrest and

 3    physical assault.

 4            Lastly, the Trial Chamber evaluated the seriousness of Ivica

 5    Rajic's crimes in the light of their impact on the victims and the effect

 6    upon the victims' families.  In doing so, the Trial Chamber examined the

 7    evidence submitted by the Prosecution and found that the victims and their

 8    families suffered severe pain as a direct result of the crimes.  It

 9    concluded that this factor should therefore be taken into consideration

10    when determining the seriousness of the crimes.

11            Let me now turn to the aggravating and mitigating circumstances.

12            The Trial Chamber has examined the four aggravating circumstances

13    put forward by the Prosecution; namely, Ivica Rajic's position of

14    authority and as a superior, the impact of his crimes on particularly

15    vulnerable victims, Ivica Rajic's participation in a cover-up, and the

16    fact that he absconded and obstructed justice for almost eight years.

17            With regard to Ivica Rajic's abuse of position of authority under

18    Article 7(1) of the Statute, and his position as a superior under

19    Article 7(3) of the Statute, the Trial Chamber first noted that it was not

20    bound to consider these elements as aggravating factors pursuant to the

21    Stakic, Momir Nikolic and Naletilic appeals judgements.  Furthermore, in

22    light of the same jurisprudence, the Trial Chamber found that in this case

23    Ivica Rajic's abuse of his position of authority and his position as a

24    superior could not be taken into account as aggravating factors, since

25    these factors had already been taken into account when examining the

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 1    gravity of the crimes.

 2            As to the vulnerability of the victims, the Trial Chamber

 3    considered that certain victims, five children, and two elderly women, one

 4    of whom was invalid, were indeed in a situation of special vulnerability

 5    during the attack on Stupni Do.  The Trial Chamber therefore found this

 6    element to be an aggravating factor.

 7            The Trial Chamber was not, however, convinced by the arguments of

 8    the Prosecution according to which absconding from justice and

 9    participation in cover-up activities should aggravate the sentence.  The

10    Prosecution did not prove that these elements were aggravating

11    circumstances pursuant to customary international law or general

12    principles of law.  However, the Trial Chamber accepted that these factors

13    could be taken into account when appraising the weight to be attributed to

14    certain mitigating circumstances, especially when evaluating Ivica Rajic's

15    good character.

16            The Trial Chamber also reviewed four mitigating circumstances

17    submitted by the Defence and the Prosecution; that is, the guilty plea,

18    Ivica Rajic's remorse, his cooperation with the Prosecution, and his

19    personal circumstances.

20            The Trial Chamber held that Ivica Rajic's guilty plea helped to

21    establish the truth surrounding the crimes committed in Stupni Do and

22    Vares.  This may contribute to the reconciliation of the peoples in the

23    former Yugoslavia and to the restoration of a lasting peace in the region.

24    Such recognition of responsibility also saved valuable court time and

25    resources.  The Trial Chamber therefore found that Ivica Rajic's guilty

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 1    plea was indeed a mitigating factor.

 2            As to his remorse.  The Trial Chamber, after listening to Ivica

 3    Rajic's statement at the hearing, felt that Ivica Rajic's expression of

 4    remorse was real and sincere and must therefore be taken into account in

 5    mitigation.

 6            In respect of his cooperation, in the light of the assessment made

 7    by the Prosecution in its brief and during the sentencing hearing, the

 8    Trial Chamber has found it to be a mitigating factor.

 9            In relation to Ivica Rajic's personal circumstances, the Trial

10    Chamber observed that the Defence did not submit any evidence regarding to

11    the fact that he had neither been convicted prior to the events nor driven

12    by racial or religious hatred.  The Trial Chamber also notes that the

13    Defence's submission according to which Ivica Rajic enabled 2.000 Jews to

14    flee Sarajevo, has not been proven.  Moreover, the Trial Chamber considers

15    that when an accused has been convicted of extremely serious crimes his

16    family circumstances can only have a limited bearing on the sentence to be

17    imposed.

18            Finally, in accordance constitute and the rules the Trial Chamber

19    took account of the general sentencing practice in the courts of the

20    former Yugoslavia.

21            Mr. Rajic, will you please stand?

22                          [The accused stands up]

23            JUDGE VAN DEN WYNGAERT:  The Trial Chamber has duly examined the

24    evidence relevant to an adequate determination of the seriousness of the

25    four grave breaches of the Geneva Conventions of which you have been found

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 1    guilty:  Wilful killing, inhumane treatment, extensive destruction and

 2    appropriation of property not justified by military necessity and carried

 3    out unlawfully and wantonly.  The sentence should reflect the fact that

 4    these crimes were committed on a large scale, were of a particularly

 5    violent nature, and caused severe pain to the victims and their relatives.

 6    The sentence should also reflect the importance of the role you played in

 7    these events when following orders of your own superiors, you planned and

 8    ordered the attacks and further ordered the rounding up of Muslim

 9    civilians, knowing he substantial likelihood that criminal acts would

10    ensue following your orders.

11            The Trial Chamber considered that the special vulnerability of

12    certain victims is an aggravating factor.  However, the Trial Chamber

13    found that your position of authority and as a superior were not

14    aggravating factors in the present case but inherent in the gravity of the

15    crimes.

16            Finally, the Trial Chamber rejected the Prosecution's submissions

17    that the participation in a cover-up and obstructing justice for almost

18    eight years constituted aggravating factors.  Furthermore, the Trial

19    Chamber gave consideration to a number of mitigating circumstances:  Your

20    guilty plea before the trial, your remorse and your cooperation with the

21    Prosecution.

22            Finally, the Trial Chamber accorded some additional weight in

23    mitigation of sentence to your personal circumstances.

24            The Trial Chamber hereby sentences you, Ivica Rajic, to 12 years

25    imprisonment.  You are entitled to credit for time spent in detention,

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 1    namely 1.130 days.

 2            You may sit down.

 3                          [The accused sits down]

 4            JUDGE VAN DEN WYNGAERT:  The Trial Chamber stands adjourned.

 5                          --- Whereupon the hearing adjourned at 5.57 p.m.