¹⁶⁹

Friday, 2 April 2004

[Sentencing Hearing]

(Open session)

[The accused entered court]

[The witness entered court]

--- Upon commencing at 9.04 a.m.

JUDGE ORIE: Mr. Usher, could you please call the case.

THE REGISTRAR: Good morning, Your Honours. This is Case Number IT-03-72-S, The Prosecutor versus Milan Babic.

JUDGE ORIE: Thank you very much, Mr. Usher. Good morning to everyone. And when I say everyone, it's you, Mr. Babic, and just to save myself the question of the appearances to you, Mr. Fogelnest, to you, Mr. Mueller, to you Ms. Uertz-Retzlaff, to you, Mr. Whiting, and to you, Ms. Bauer. Then we have had the appearances for both the Defence and Prosecution. And of course, to you, Mr. Kovacevic, as a witness who came back, and to who I would like -- I would like to remind you that you are still bound by the solemn declaration you've given yesterday.

There might be still a few questions for you. Ms. Uertz-Retzlaff, at least you indicated yesterday you had at least one question. I'm not saying this is the last question. But please proceed.

MS. UERTZ-RETZLAFF: Yes, Your Honour, it's not only one question, it's actually one issue, the one raised by you yourself.

WITNESS: DRAGO KOVACEVIC [Resumed]

[Witness answered through interpreter] ¹⁷⁰ Examined by Ms. Uertz-Retzlaff: [Continued]

Q. Mr. Kovacevic, when Your Honour Judge Orie asked you yesterday about your knowledge about Croatian victims at the time, you said yesterday that there were rumours at that time to this effect, and that you saw such information on the Croatian electronic media. Does that mean TV?

A. What I meant was including television. However, I have to say that the reception was poor, however there was TV reception. If you will allow me, there is one matter that is quite important here; namely, at the time, there was a major propaganda war going on between the Croatian and Serbian media. And it was difficult to discern what was the truth and what wasn't. There were a lot of rumours. And if you followed the media, then it was very difficult for you to determine whether they were just giving you facts or explaining the facts or muddling the water, so to say. So I think that these elements of the propaganda war should be borne in mind. It was very difficult to know at the time what was the truth and what wasn't, of the material that was broadcast. I think that needs to be known.

Q. Yes, thank you. You also mentioned that later, on the coverage -- later on, the coverage was rather realistic, and you in particular referred to refugees speaking in front of cameras. Are you referring to Croatian refugees speaking about -- before Croatian TV cameras?

A. Yes. These are the refugees that I have referred to. Yes.

Q. And when you said later on, the coverage was rather realistic, ¹⁷¹ what time do you refer then to? What is "later on"?

A. Later on, when things became more focussed and more clear, then some of the material was true and was realistic, some of the material. So once the situation became such that one could discern what was propaganda and what was the actual reporting, we could see that there were some realistic reports then.

Q. My question was to which time period do you refer, to which year?

A. It is very difficult for me to pinpoint it now, but I was referring to the entire time that the conflict was going on. For example, Croatian media always reported about Vukovar, civilian victims, and refugees fleeing Krajina sometime in 1991. So throughout the conflict, one could see that under the circumstances that I have already described to you. Now, to give you the exact time period, whether that was right at the time when the events were unfolding or whether it was later on, I really couldn't tell you accurately.

Q. Now, let me ask you some specifics about the contents of this reporting. And I'm aware that it's very difficult after so much time. To assist you, I would like to refer you to the visit that you mentioned with Mr. Babic to Kostajnica in 1995 and where you heard about the particular murders in that region. And first of all, these murders in villages that you mentioned, does it refer to the villages Bacin, Dubica, and Cerovljani?

A. Yes, most likely it involves these villages, the villages in the area surrounding Kostajnica and Dubica.

Q. And this information that you got there on this wedding ¹⁷² celebration in 1995, was this new to you, too, or only to Mr. Babic?

A. I must say that it was new for me, too. It was new for me as well because I didn't know about that before. I didn't see these things reported in the media.

Q. And in relation to murders committed in Skabrnja and Nadin, do you recall any media reports from Croatia on that issue? At that time, I mean, in 1991.

A. I watched a report on Croatian television. Now, it's difficult for me to say whether it was in 1991 or 1992. I remember that in that report, they described how the victims were brought to the town of Zadar and turned over to their families. There was a report that I remember, but I really couldn't tell you whether it was in late 1991 or already in 1992. But there was such a report on television, yes.

Q. And do you recall any TV coverage in relation to murders in --

JUDGE ORIE: May I interrupt you, Ms. Uertz-Retzlaff. I think the issue that has been raised is whether Mr. Babic had knowledge of murders.

MS. UERTZ-RETZLAFF: Yes.

JUDGE ORIE: If we look at the agreed facts underlying the plea agreement, we see that there's a clear denial that at the time he knew about murders to take place. What's the relevance of knowing exactly whether a specific murder had been shown on television? I think the main element of the testimony of this witness is that murders, in whatever villages, were shown on television, on Croatian television. And I wonder what the relevance is to go through all detail, say was this murder shown ¹⁷³ on television, was that murder shown on television? So unless you could tell us what the relevance of that instead of keeping to the main line, I wonder whether we should continue.

MS. UERTZ-RETZLAFF: Your Honour, I can tell you the relevance, why I ask these questions. But I rather would not do it in front of the witness.

JUDGE ORIE: Then let's ask the witness -- Mr. Kovacevic, I regret that I have to ask you to leave this courtroom just for a while in order to have a legal matter discussed. The usher will escort you. Yes. It's just for the witness, I take it, to leave.

MS. UERTZ-RETZLAFF: Yes, just for the witness. Your Honours, yesterday when we became aware that it would be an important issue, what was reported in the media and what the witness saw and what we assume Mr. Babic may have the possibility to see as well, we actually checked what Mr. Babic said during the interview --

JUDGE ORIE: Yes.

MS. UERTZ-RETZLAFF: -- about the murders and about his knowledge of this, and about his access to the media. And Ms. Bauer actually checked the entire -- searched the entire transcript, at 1.200 pages. She may have overlooked something, but with the keywords, she should have actually got all the references. And what we found out is that Mr. Babic during the interview was asked about these specific murders, and he actually denied to have known about this at that time.

JUDGE ORIE: Yes.

MS. UERTZ-RETZLAFF: And he explained to us when he heard details ¹⁷⁴ of these murders -- and it's, for instance, a wedding that the witness mentioned. It is other information that he got from the witness at a later date, and also from another person. We also checked where he mentioned the media, and we found no reference where the witness denied to have -- the witness, sorry. Mr. Babic denied to have access to the Croatian media. This was something that Mr. Mueller declared unfortunately, I must say now, declared during the initial appearance, but we have no such reference from Mr. Babic himself. What we have, indeed, is actually a comment of Mr. Babic to the contrary in his interview, video 000376, tape 2 of 14, page 6 to page 8. He makes references to general knowledge, what he heard about, and he mentioned particularly the Serbian media and the Croatian media, that they at the same time were reporting contrary.

It says here in particular: "On the other hand, the Croatian media always said that this was the Serbs, the Chetniks." So it seems from this quote, in particular because it's a quote following a discussion about the events in Kijevo that Mr. Babic did see Croatian media and Mr. Mueller had an error.

And what I wanted to establish actually with the witness, and this is why I asked him so particularly, whether reporting about these particular murders were in the media at the time because it seems to me that Mr. Babic did not actually claim he had an access to Croatian media.

JUDGE ORIE: Yes. I think in the agreed facts, it doesn't say anything on whether Mr. Babic had access to the media, as far as I remember. It does, however, say clearly that Mr. Babic had at the time ¹⁷⁵ no knowledge of the murders. So I now understand that what seems to be the case is that Mr. Babic had access to the media, even noticed that there was a contradiction between the reports in the Serbian and in the Croatian media and -- well, if he had no knowledge of the murders, that means that he has not clarified it at that moment in his position. And that, of course, the lack of knowledge of murders gets a -- perhaps a slightly different colour if this is the factual background on which the -- this agreed fact is based.

MS. UERTZ-RETZLAFF: Your Honour, let me say something in addition. What Mr. Babic did not deny is that he knew that ethnic cleansing was going on and people were killed. What Mr. Babic denied was that he knew about the murders charged. And this is actually something -- this is actually what I wanted to establish with the witness. I wanted to establish with him what was in the media about the particular murders, and what was the general reporting. And one more point: We did not provide this information to the Trial Chamber because it would -- it was much too wide. We would have too many exhibits from the Milosevic case. But what became clear from the Milosevic case is international complaints, complaints by the Croatian government, or complaints by the ECMM reporters were always directed to either the president of Serbia, Mr. Milosevic; to Mr. Jovic, from the presidency of Yugoslavia at that time; or the JNA Generals Adzic, Kadijevic, or Raseta, and those complaints were not directed to the government of the so-called SAO Krajina because the internationals and also Croatia simply ignored the existence of this entity. So this is ¹⁷⁶ also something that let us believe that Mr. Babic did tell us the truth.

JUDGE ORIE: Yes. So I have to read page 13 of the annex to the plea agreement; that's the factual statement where it reads: "With respect to the murders charged in paragraph 15 (a) of the indictment, Milan Babic did not know they were occurring at the time, but knew from what he observed that such killings were the likely outcome of the pursuit of the objective of the joint criminal enterprise and the campaign of persecutions."

That is not exactly language which confirms his knowledge of other killings to take place, apart from those charged in paragraph 15 (a) of the indictment. But if it is common understanding between Prosecution and Defence that although Mr. Babic did not know at that time of the murders as charged in paragraph 15 (a), but that he was aware that noncombatants were killed -- well, let's say civilians were killed -- in the course of the ethnic cleansing, in the forceful removal -- forcible removal of civilians from the area, that at least clarifies an issue that appears on page 13.

As I have expressed it now, is that common understanding between the parties?

MS. UERTZ-RETZLAFF: This is the understanding of the Prosecution.

JUDGE ORIE: Of the Prosecution. And then --

MR. MUELLER: This is also the understanding of the Defence, and it always was.

JUDGE ORIE: Yes. Then either we have not read carefully the ^{177BLANK PAGE 178} text, because I only saw that Mr. Babic knew that such killings were the likely outcome of, which is not the same as that he knew that killings were committed in the course of. It's not exactly the same. So if any of the parties could tell me exactly where I find in the agreed facts that he knew about killings to take place. Yes.

MS. UERTZ-RETZLAFF: Your Honours, I thought we would make it -- it was clear in the agreed fact, that we made clear that he didn't know about the murders, but we did of course not make any more references to other killings because it's not really specified in the indictment. So we made a special reference to these murders in the indictment.

JUDGE ORIE: Yes.

MS. UERTZ-RETZLAFF: But not any further reference to other killings.

JUDGE ORIE: Let me now turn to the indictment.

MS. UERTZ-RETZLAFF: Your Honours, in count 1, the charges in paragraph 15, we make the reference to the killings of Croats and non-Serbs, and actually what follows then is the list of the murders that we have particularly charged.

JUDGE ORIE: Yes. So what you say is that these murders he didn't know about, but he was aware of civilians being killed other places, but in the framework of the same ethnic cleansing.

MS. UERTZ-RETZLAFF: Yes, Your Honour.

JUDGE ORIE: That's the understanding of both parties.

MR. MUELLER: I'm very sorry.

JUDGE ORIE: So I do understand that it is denied that Mr. Babic ¹⁷⁹ knew about the murders listed in paragraph 15 (a), and then under 1 until 4, where numbers and specific situations are described, but that he was aware that civilians were killed elsewhere -- I would say in the course of the same ethnic cleansing, but not specifically on these places and these times.

MR. MUELLER: Correct, Your Honour.

JUDGE ORIE: Yes.

MS. UERTZ-RETZLAFF: And perhaps one additional remark: How I understood the situation and the knowledge of Mr. Babic. As we see from his statement, this intensive statement, he actually was aware that people were killed, civilians were killed, but his view was that they were killed during the attack as such, and not executed, or murdered, after the attack. That's the difference. He made clear that he was aware that people were killed, civilians were killed during the attack, but he did not know they were deliberately murdered as charged in these murder counts that are detailed in the indictment. That's a difference.

JUDGE ORIE: Yes. It's to some extent clear. Is this to be understood, that Mr. Babic was aware that civilians were killed as collateral damage to justified military action? Or was -- I mean, you can kill -- it sounds very horrible. But you can kill civilians in two different ways; either by using wrong military equipment for an attack not targeting precisely, and thus killing civilians as -- not as collateral damage but more or less as a consequence of improper military action; and of course, you can also save the lives of the civilians during the attack, and then kill them afterwards. ¹⁸⁰ Is the understanding that the death of these civilians was collateral damage in justified military action, or was it just shooting at a village where civilians were living, destroying their houses and killing the inhabitants at the same time?

MS. UERTZ-RETZLAFF: It is the understanding of the Prosecution, and I assume Mr. Mueller would share it with us, that Mr. Babic was very clear saying it was not legitimate military actions, but ethnic cleansing campaign in an attack that was actually illegal. And in the course of this attack, civilians were killed.

JUDGE ORIE: Mr. Mueller, is that --

MR. MUELLER: Your Honour, this is correct. The reason why I'm standing is something completely different. I just realised in the transcript that the names are mixed up. Whether I'm quoted, it's quoted as Mr. Fogelnest. I'm Mr. Mueller. I'm sorry.

JUDGE ORIE: Yes.

MR. MUELLER: Just for the record. Thank you.

JUDGE ORIE: If anyone would later like to check on the videotapes who was speaking, and of course it will be corrected to the extent possible, then let me now make it clear that the one with the more grey hair is Mr. Mueller, and the one with the less grey hair is Mr. Fogelnest.

MR. FOGELNEST: While I would be delighted to have Mr. Mueller comments attributed to me, I can understand his consternation in not wanting mine attributed to him.

JUDGE ORIE: Yes, let's get back to this. I think this has ¹⁸¹ clarified a lot for the Chamber. Let me just check whether my colleagues have the same view.

[Trial Chamber confers]

JUDGE ORIE: I think as a matter of fact the Chamber better understands now the factual basis for the plea agreement, and -- although it has surprised me a bit that in the examination of the witness some of the agreed facts came back where I expected them to be settled. But now it turns out to be a good thing, since it has clarified some issues in the factual basis for the plea agreement. And I don't think that we need to ask any further questions to the witness about this specific aspect, it having been clarified.

MS. UERTZ-RETZLAFF: No, Your Honour. I agree.

JUDGE ORIE: Mr. Usher, could you please escort the witness back into the courtroom.

We had to clarify, Mr. Kovacevic, a certain issue. We have clarified it, so there is no need to ask you any further questions on the issue of what was visible in 1991 on television and what was not. I have, however, another question for you. And that is about the word you used yesterday, the word "Zupan." You told us that you heard this word to be used twice, as I said, against Mr. Babic. This word Zupan, did you ever hear it used in the sentence you gave to this word yesterday before, in other circumstances, not related to Mr. Babic?

THE WITNESS: [Interpretation] Your Honour, I have to clarify. I can't give you a one-sentence answer. The word Zupan, under the circumstances, meant traitor, a traitor of national interest because its ¹⁸² meaning derives from the fact that the Republic of Croatia determined its territorial organisations by establishing counties as administrative units. And a Zupan or a prefect is somebody who is the head of this administrative unit in Croatia.

THE INTERPRETER: The word in Croatian is zupanija [phoen].

THE WITNESS: [Interpretation] In this specific case, the use of this term did not mean prefect; it meant traitor. It was a derogatory word which described the person who would be referred by such a name in Krajina. This word was addressed to Mr. Babic as a political figure, as somebody who was prepared to be an official or a civil servant in the Croatian state. And this is the way it should have been construed or understood.

JUDGE ORIE: Yes. I do understand on what basis you gave this interpretation to this word. My question was whether you heard this word being used in this same sense on other occasions than the two times you heard this word used in addressing Mr. Babic.

THE WITNESS: [Interpretation] When the negotiations were to take place in Krajina, this word would be used. Yesterday I mentioned two specific cases, one that happened during the first constitutional amendments when a formal proposal was drafted about the constitution and the proposal that the association of municipalities should be treated in a special way. The second time I heard it from Biljana Plavsic. I spoke about that yesterday.

Whenever negotiations or talks would be staged, this word would be used. There were cases when pamphlets, special pamphlets would be ¹⁸³ printed, and Mr. Babic would be scolded in a similar way in those pamphlets.

JUDGE ORIE: Yes. So you say it was used in writing in a similar way, that word; and it was more or less to express that Mr. Babic was the servant of the Croatian government, being the one in charge in the Croatian county and that this is -- this meaning of this word, did you ever hear that before the conflict, or was it new at that time?

THE WITNESS: [Interpretation] This word did not exist before the conflict. This word I heard for the first time at the end of the year 1990 when some sort of a conflict was already on. It was still not an armed conflict, but there was a conflict. And if you will allow me, this should have blocked Mr. Babic's attempts to enter a negotiation process or a political process which would lead to political solutions and integration within the state of Croatia.

JUDGE ORIE: Thank you for this answer, Mr. Kovacevic. Are there any further questions triggered by the questions of the Bench?

MS. UERTZ-RETZLAFF: Not from the Prosecution.

JUDGE ORIE: Yes, Mr. Mueller.

MR. MUELLER: Defence has no questions, thank you.

JUDGE ORIE: Yes. Since there are no more questions from the Bench either, Mr. Kovacevic, I'd like to thank you for having come the far way to The Hague and to testify and to answer the questions of both parties and of the Bench. And I wish you a safe trip home again. Mr. Usher will escort you out of the courtroom. ¹⁸⁴ Mr. Mueller.

[The witness withdrew]

MR. MUELLER: Mr. President, I was informed that it was or is regarded as a so-called nobile officio of the Defence to say a few words to the witness after he is escorted out of the room. I was not aware of that fact, so if the Chamber is of the opinion that this is correct, please give me a chance to do so. I would ask for a little break and I should say goodbye and thank you to our witness. If you find this appropriate, because we do not have this happen in Germany.

JUDGE ORIE: I must say that it's the first time in this Tribunal --

MR. MUELLER: It was told to me. I'm sorry to interrupt. I was also surprised, as you seem to be as well.

JUDGE ORIE: Well, being in this Tribunal for two years, a little bit over two years, and having never experienced this, Mr. Mueller, if during the next break you're in a position to say goodbye to the witness, of course you will be able to do so, or send him a small letter later on thanking him for responding to being called.

MR. MUELLER: Thank you. The letter is a very good idea.

JUDGE ORIE: But I think at this moment, there is no reason to interrupt the hearing.

I think we are now at the point where before hearing the closing remarks of the parties, I should give Mr. Babic an opportunity to express himself.

Mr. Mueller, Mr. Fogelnest. ¹⁸⁵

MR. FOGELNEST: Your Honour, may I have an opportunity to consult with him for one moment.

JUDGE ORIE: Yes, please. Take your time.

MR. FOGELNEST: Thank you.

MS. UERTZ-RETZLAFF: Your Honour, may I also raise an administrative matter. You have not yet formally accepted the exhibits of the Prosecution. And we have meanwhile actually the numbered versions.

JUDGE ORIE: As a matter of fact, I was more or less waiting for that. And I developed the -- the custom in my Chamber is to always wait for the end because there always happens something. If we would have admitted them yesterday, we would have a new version now. Let's do it at the final end. You never know what is there to come.

JUDGE ORIE: Mr. Fogelnest.

MR. FOGELNEST: He's ready to proceed.

JUDGE ORIE: He's ready to proceed. Mr. Babic, this is the moment for you to address the Chamber. Please proceed.

THE ACCUSED: [Interpretation] Your Honours, I can't say anything else but that I'm very sorry for what I did. I've appeared before this Tribunal and I've told the truth, and I believe that this will help to achieve reconciliation among the peoples in the Balkans. I have placed myself at the disposal of this Tribunal believing that this is the only institution that can bring peace to my homeland. I know that some people consider me a traitor; however, I believe that by appearing before this ^{186BLANK PAGE 187} Tribunal I serve the best interests of all the people to arrive at the truth. I invite all the others who are aware of the facts of what happened to appear before this Tribunal and tell the truth. The historical truth has to be recorded so that the future generations may learn from our mistakes. Thank you.

JUDGE ORIE: Thank you, Mr. Babic. It's not the use in this Tribunal to ask a defendant questions on short statements he gives and I'm not going to break with that custom. But if you would feel that you would like to explain why you did not take the same position in respect of the need to cooperate with the Tribunal before 2001, autumn 2001, if you would like to spend words on that, you have an opportunity to do so.

So if it would be put by way of a question, the question would be why in autumn 2001, why, as we read in these sentencing briefs, once you saw your name appearing in an indictment against Mr. Milosevic, and why not at an earlier stage? Why not during five years when you were aware of the existence of the Tribunal and where the historical needs might have been the same?

So if you want to express yourself on that, you're free to do so.

THE ACCUSED: [Interpretation] Thank you, Your Honour. Let me start by saying before 2001 I didn't dare do so for a simple reason: I lived as a refugee in Serbia. I didn't have any ID. I didn't have a passport. I could not leave the country -- formally, that is. I may have been given an opportunity to leave the country, but I wouldn't know what to do with my family. I was not in a position to talk to the ¹⁸⁸ Tribunal without mentioning the whole truth that I was aware of, and a lot of that concerned people who were still in power in Serbia. I must say that I was invited at the beginning of 2001 to give a statement with regard to Operation Storm. This statement would have concerned what the state of Croatia did with regard to the expulsion of Serbs from Krajina. But I couldn't do that for the same reason that I have just mentioned. The basic thing that I need to mention is this: There's just one truth. It's an integral truth. It involves all the parties that were involved in the conflict, and I couldn't talk at that time. I could only tell a fragment of the truth, and this is what I can do and didn't want to do. And this is the reason why I didn't come forward sooner.

[Trial Chamber confers]

JUDGE ORIE: Thank you for having expressed your opinion on that specific issue, Mr. Babic. Please be seated.

I think we are now at the point where the Chamber could hear the closing remarks of both parties. Mr. Uertz-Retzlaff, have you got any idea on how much time you would need for your closing remarks?

MS. UERTZ-RETZLAFF: Yes, Your Honour. I assume it will be a bit more than an hour.

JUDGE ORIE: A little bit more than an hour. And how much time would Defence need together?

MR. MUELLER: This question is very difficult for me. I haven't asked my colleague yet, but I could tell you how much I would need. Probably I need about 20 or 25 minutes. ¹⁸⁹

JUDGE ORIE: Yes, Mr. Fogelnest, on the basis of equality.

MR. FOGELNEST: Your Honour, I have not written a speech. I'm more used to working from notes and speaking rather extemporaneously, so that I cannot tell you. I have not timed it. However I think it would be appropriate that between the two of us we did not exceed the time that Ms. Uertz-Retzlaff took, and I will attempt to confine myself within that time period and hope that the Court will be -- I'll try to finish sooner, if the Court will be a bit tolerant and if it runs a few minutes over.

JUDGE ORIE: I suggest that we do not start right away, because we might get in trouble since we have to stop at not later 20 minutes to 11.00, both in view of tapes and services of the interpreters. That might be too short.

So I suggest that we now have a break of 15 minutes, that we start at 5 minutes past 10.00; that you'll then make your closing remarks, Ms. Uertz-Retzlaff; that we then have another short break just after 11.00; and that then the Defence will take another hour for its closing remarks. So that we then could finish at approximately -- let's say quarter past 12.00, not later than 12.30.

--- Recess taken at 9.52 a.m.

--- On resuming at 10.11 a.m.

JUDGE ORIE: Madam Uertz-Retzlaff, you may proceed.

MS. UERTZ-RETZLAFF: Thank you. Your Honours, finding a just sentence that is acceptable for the victims of the crimes and their relatives, for the accused, and the public in the former Yugoslavia is an important and difficult task for ¹⁹⁰ this Trial Chamber.

Making recommendations for an appropriate sentence for the accused Milan Babic is a difficult task also for the Prosecution, and in particular for me. About ten years after the crimes, I met Mr. Babic for the first time and worked with him over weeks and weeks in Serbia, and later on here in The Hague. During this time, Mr. Babic gave the impression of a moderate man full of remorse, regretting his participation in the crimes. He has accepted his responsibility, pleaded guilty, and has also provided invaluable evidence about a broad range of issues that will enable the Tribunal as a whole and the Office of the Prosecutor in particular to fulfil its mandate. All this calls for a lesser sentence.

Yet Mr. Babic has participated in very serious crimes which caused great suffering for many, many victims.

Thus, it is a case that creates a considerable tension between determining the proper punishment for someone responsible for the gravest of crimes, yet someone who has considerably changed after his disassociations from his coperpetrators, and who has taken significant and substantive steps to assist the Prosecution in its investigations and to assist the Trial Chambers to establish the truth and to further reconciliation in the former Yugoslavia.

Your Honours, your task is to find a right balance between punishing a perpetrator according to his guilt, while at the same time encouraging other persons similarly situated to the accused to cooperate with the Prosecution and to assist the Trial Chambers in future ¹⁹¹ proceedings. I, for my part, have approached this issue carefully, and I have discussed it with the Prosecutor, my colleagues in the trial team, and with other senior members of the OTP.

The Prosecution has filed its position in an extensive Prosecution brief. I do not intend to repeat what is already available in writing. Instead, I want to explain why the Prosecution arrived at its recommendation.

Yesterday, I saw in the media reports claiming that the Prosecution will ask for 11 years' imprisonment. That is not correct. The Prosecution recommends a sentence below 11 years, and I stress here the word "below."

In this Tribunal, we have an increasing amount of guilty pleas. For guidance, I therefore looked at the judgements in these proceedings. I, in particular, looked at the sentencing judgements involving Srebrenica. We have here the Erdemovic judgement, and you may recall Erdemovic, in July 1995, together with a group of seven other soldiers, shot about 1.000 Muslim men. He was convicted to five years' imprisonment. The sentencing Chamber acknowledged that he acted under duress and under order, and that he showed remorse and cooperated substantially with the Prosecution.

Obrenovic, chief of staff and deputy commander of the Svornik Brigade in 1995 was the commanding officer during the events in Srebrenica. He took overall responsibility for what happened, but had only very limited involvement in the killing operation itself. He was convicted to 17 years' imprisonment. ¹⁹² Nikolic, the chief of intelligence and security of the Bratunac Brigade was heavily involved in the implementation and coordination of the killings in Srebrenica. He was convicted to 27 years of imprisonment. Both Obrenovic and Nikolic pleaded guilty, and both cooperated substantially with the Prosecution. Both testified in other cases. However, their cooperation and truthfulness differed in degree. What can be seen from these examples is, firstly, that guilt needs to be looked at individually and can lead to quite different sentences for participation in the same crime; and secondly, that sincere cooperation and truthfulness makes quite a difference in this Tribunal. Further, I looked for guidance to the sentencing judgement for Mrs. Plavsic. She was a member in the same JCE as Mr. Milan Babic. As Mr. Babic, she was not one of the top members within the joint criminal enterprise, and her influence on other members of the JCE was limited. However, on the regional level, she held high office. From February to May 1992, she was acting copresident, and subsequently member of the collective and expanded presidency of Republika Srpska -- a position, actually, not unlike the one Mr. Babic held in the SAO Krajina and the RSK respectively.

In her political function, Mrs. Plavsic shared the goal, as Mr. Babic, that is, the common state for all Serbs. She shared the intent of the Bosnian Serb leadership, to remove the non-Serb population from Bosnian territories of this new Serbian state by either agreement or force. After it became clear that the objective could only be achieved with violent means, she significantly assisted the persecution campaign ¹⁹³ that took place in 37 municipalities throughout Bosnia and Herzegovina. As Milan Babic, she did not participate in the conception and planning of this campaign and had a lesser role in its execution. When looking at the events in Bosnia, it cannot be overlooked that the persecution campaign Mrs. Plavsic got involved in was of a different quality and quantity than the one Mr. Babic is responsible for. According to the sentencing judgement and lists attached to the indictment in that case, 59 killing incidents in villages were specified, and 400 detention facilities listed. In 38 of these detention facilities, detainees were murdered. Several thousands of people were killed in the villages, in detention facilities that were specified in the schedules. However, the scale of killing, expulsion, and destruction was much wider.

Mrs. Plavsic pleaded guilty and was sentenced to 11 years' imprisonment. The principal mitigating factor mentioned in the judgement were the guilt plea, remorse, voluntary surrender, conduct after the events, and her age. Substantial cooperation was not a relevant factor in the Plavsic case. Neither before nor after the sentencing judgement did she testify before this Tribunal in other cases.

The Prosecution is aware that this judgement does not have any binding affect on the sentences to come for the other members of the JCE. Each case in this Tribunal is a unique case. However, the Prosecution looked at the sentence for Mrs. Plavsic as a starting point to arrive at a justified recommendation for Mr. Babic.

Let me now turn to the gravity of the crime. Much what can be ¹⁹⁴ said is articulated in the factual basis and also part of the public record, and we have also clarified today a point. There is no need for me to repeat all this. In addition, my colleague, Mr. Whiting, has made the gravity of the crimes the focus of his yesterday's opening remarks, and I do not intend to address the same details as he did. For the crime for which Mr. Babic is to be sentenced, the crime is precisely the type of crime about which the Security Council of the UN expressed its grave alarm in its Resolution 808. The events in the so-called SAO Krajina in August 1991 to December 1991 are the classic conduct of what is often referred to as ethnic cleansing and precisely the reason why the Security Council established this Tribunal. The persecution campaign that took place in the SAO Krajina was not an isolated or random event, but a critical element in a larger scheme to create a new Serbian state encompassing about a third of Croatia, large parts of Bosnia and Herzegovina, Serbia, and Montenegro. Vital to this scheme to create the new Serbian state was the separation and the permanent removal of the non-Serb population from these targeted territories. Those standing behind this plan intended to pursue it either by agreement or by force.

Milan Babic, who was the highest ranking Serb politician and official in the SAO Krajina, subscribed to this political goal of a common state for all Serbs. However, in 1990 and the first half of 1991, he did not approve the use of force, but favoured political agreement. As witness Kovacevic has testified, Mr. Babic met with Croatian officials in autumn 1991 to find a peaceful solution when the police around Milan ^{195BLANK PAGE 196} Martic had established a barricade. For this conduct -- Mr. Babic, for his conduct, he was criticised by the small radical Serbs around Milan Martic and the national resistance council, and he was called a traitor. His efforts for a solution through negotiations were disturbed and actually destroyed by these people from the national resistance council, and those around Milan Martic.

However, at the same time, Mr. Babic was aware that the Serbs were arming themselves and preparing for violent actions. He, in particular, saw the violent and provocative actions of the so-called parallel structure around Milan Martic, Frenki Simatovic, Jovica Stanisic, and others. From August 1991 onwards, he was aware of the violence that was vented against the non-Serbs, in particular the Croat population in the SAO Krajina. He saw that the creation of the Serbian state was pursued now with violent means. Yet, he continued to be part of the highest circle of power. He continued to participate in what he knew was a criminal enterprise. He indeed headed the political apparatus in the region that facilitated the persecution campaign. My colleague just alerted me that I said "Mr. Babic negotiated with Serbs in autumn 1991." It's actually with Croats. Yes, we are talking about 1990.

Mr. Babic continued to fulfil his political functions, continued with his nationalist rhetoric, continued to cooperate with Slobodan Milosevic, high-ranking officials in Belgrade, including the minister of defence in Serbia, the Bosnian Serb leadership, and high-ranking military and police officials in the joint criminal enterprise, in particular ¹⁹⁷ Milan Martic and JNA and TO generals.

Milan Babic's leadership position is an aggravating factor in these events. However, in this context, I have to point out that a distinction has to be made between him and other members of the joint criminal enterprise. He was not in control of the forces executing the campaign; he was not a leading member of the JCE; he was rather misled, used and intimidated by other members of the JCE, in particular, Milan Martic and Slobodan Milosevic.

Mr. Whiting in his opening remarks has explained to you the territory Milan Babic is concerned with. He is not responsible for what happened in the other territories. From the map, you could see that the SAO Krajina includes a region in which Serbs were in the majority before the war. Your Honour, on the map that you saw and what will become an exhibit, you can also see a smaller map with various blue shades indicating the ethnic composition of that region.

However, within this territory, there were small towns and villages which were predominantly Croat. And against the non-Serb population in these Croat settlements, a persecution campaign was waged during which between September and December 1991 Serb forces murdered 110 Croat and non-Serb civilians in Dubica, Cerovljani and Bacin, 7 in Lipovaca, 10 in Vukovici, 29 in Saborsko, 38 in Skabrnja, 7 in Nadin, 10 in Bruska - here including a Serb victim who happened to be visiting there - and finally another 26 in Skabrnja.

Mr. Babic did not know about these particular murders at the time when they occurred, and he was not aware of the scale of these and the ¹⁹⁸ circumstances of these murders. However, he knew that they were the likely outcome of the ethnic-cleansing campaign.

During the investigation, it was always an issue whether Mr. Babic knew about the murders when they occurred. However, I think we have clarified this point today, and we know that he saw when he travelled through the region the devastation. He saw that the Croatian population had disappeared, and he knew that civilians were killed during the ethnic-cleansing campaign.

I do not think that I have to go into details of what the media, the Croatian media, reported because we have spoken about this issue today. We have clarified this. So I do not want to waste any time with this. However, I want to mention again that protest notes and official declaration from Croats, from international observers, and Human Rights Watch were addressed to the president of Serbia and to Jovic and the JNA and not to this accused.

From August until November 1991, several hundred Croats and non-Serbs, among them civilians, policemen, and soldiers, were detained in two detention facilities in Knin in which they were kept in inhumane living conditions and mistreated. Mr. Babic was aware of these detention facilities. In fact, he was involved in the exchange of detainees. The villages that I just mentioned in relation to the murders were destroyed, the non-Serb population expelled, churches -- Catholic churches devastated. Mr. Babic saw the results of the ethnic-cleansing campaign when he was travelling through the region.

Mr. Babic was not in charge of the forces who did that. He was, ¹⁹⁹ however, the de jure commander of the Serb TO of the SAO involved in these crimes. He was not part of the parallel structure that directed the violent troops in subordination and coordination with the JNA. He indeed had himself frequent conflicts with them, as witness Kovacevic has told us. Nevertheless, Milan Babic cooperated with these forces in the period of time that is charged here.

We have included in our submission the statements of a number of victims from the tragic events. The horrors and enduring consequences of the persecution campaign suffered by the victims are described in these submissions. They reflect the impact that the crime had on the lives of the former residents of the villages mentioned.

The Prosecution on purpose did not call any of the victims to testify in this sentencing hearing. The victim witnesses had to come here already to testify in other cases, in particular the Milosevic case. Some of them will be needed in future cases. Speaking about the horrors the victims survived can, as we heard from Mr. Loncar, be a healing process. However, coming to testify again and again before this Tribunal is a burden for witnesses, and we did not want to add to this. Dr. Loncar has testified to the short- and long-term physical and mental consequences he found in victims of the ethnic-cleansing campaign. He adequately addressed the suffering of those who lost their family members, their homes and material possessions; who lost their ability to earn a livelihood; those who underwent detention. He described what it means being wrenched from a peaceful life among their beloved ones to a life of bleakness and despair as a displaced person or refugee with ²⁰⁰ seeming no future. The nature of the crimes and the suffering of the victims stemming from acts for which the accused bears responsibility merits a severe sentence. It is beyond dispute that the gravity of the crime is the most important factor to be considered in determining sentence.

This is, however, an unusual case, where there exists substantial mitigating factors which, in my submission, warrants the imposition of a considerably lesser sentence -- indeed, a lesser sentence than the one I described as my starting point.

Let me first address the circumstances that led to Mr. Babic's participation in the joint criminal enterprise. We have heard from witness Kovacevic and also could read in Mrs. Babic's written statement that Mr. Babic was a family man who socialised with many people regardless of their nationality before the war. He had friends and even relatives of Croat ethnicity. He came into politics from his sincere intention to work upon the development of the Knin region. The prosperity of the Knin region was at the heart of his initial political activities. Throughout his political engagement during the war and afterwards, Mr. Babic remained focussed on the Knin region and did not have involvement in other parts of Croatia or outside of Croatia when it comes to the ethnic cleansing.

This focus on the Knin region turned into pursuing the Serb cause in that region, or as Mr. Babic himself said, an ethnoegoistic course that led to interethnic confrontation, the conflict, the war, and all the horrors that occurred in the war. I asked myself what was it that turned ²⁰¹ an otherwise moderate man into an ethnoegotist, as he calls it, capable of engaging in the acts charged. Already during the initial interview in Serbia, Mr. Babic himself mentioned that the lasting media campaign from Belgrade on the one hand and political actions by the Croatian government instilled in him and many other Serbs in Knin a general fear for the fate of the Serbian people in Croatia.

And I at that point would like to draw your attention to a quote from Mr. Babic's interview. And it's actually the tape V0003557, tape 2 of 8, page 11 and 12. And it's actually on the first day of the interview. And Mr. Babic made a reference to a speech that he gave in the beginning of the SDS, at the founding of the SDS, at a rally where he spoke about a desert between Knin and Karlovac, and he referred to newspaper articles that he had read at that time, Belgrade magazines, Juga, Knin, others, and in particular also Politika, that he read from 1989 onwards. And he said in reference to a particular article that he remembered where there was mentioning of destroyed orthodox churches, he said the following: "And when I was moving through this area by bus" - and Mr. Babic was coming from Zagreb - "I wasn't at that time impressed by the landscape of the Plitvice lakes. Wherever I looked in each village, I saw a demolished church. And personally, I was really under this impression, I had this impression when I was speaking of a desert between Knin and Karlovac."

And in the following sequence, when you follow the next pages in this transcript of the interview, he actually made clear that these destroyed churches were there for decades, since actually the Second ²⁰² World War, and he suddenly saw them anew.

The Prosecution and the Defence jointly submitted the expert report of Dr. DelaBrosse who described the power of propaganda and the perfidy of the Belgrade propaganda machine. Expert witness Loncar described the psychological mechanism that could have been at work in this transformation process that Mr. Babic underwent. Witness Kovacevic has told us that hate language became the predominant language in those days, and that military action and violence took the place of political argument. While Mr. Kovacevic himself turned his back to this development and simply stopped taking part in politics, Mr. Babic did not.

Mr. Babic succumbed to this propaganda, became, indeed, part of it. Let's, however, not forget the strong influence that other members of the JCE, in particular Slobodan Milosevic, had on Mr. Babic for a period of time, the critical period of time.

Those who follow the Milosevic case take notice of the charisma of this man, and how he could influence, mislead, and radicalise others, one of them Milan Babic. As we know from Babic himself and also from Ambassador Galbraith's testimony that was submitted to the Trial Chamber, Babic was intimidated by Milosevic, Martic, Captain Dragan and others members of the parallel structure in the SAO Krajina. It is, therefore, my respectful submission that Mr. Babic should be given certain credit for his being misled and radicalised by others, in particular, the propaganda campaign. However, as Mr. Babic told us, from August 1991, he saw what was happening: That not the Serbs in the ²⁰³ SAO Krajina were endangered, but the non-Serbs. He complained in his interview and the testimony in the Milosevic case why he continued to take part and did not turn a back to this, like the witness Kovacevic. He said that by this time, he lived his political role. He liked to be a public figure. And he succumbed to his personal, political passion and his vanity.

From which is wife and witness Kovacevic, we know that during this time period Mr. Babic felt anxious, felt remorse. Privately he was shaken by the destiny of the Croat people. And he made a few attempts to take control over the forces that committed this ethnic-cleansing campaign. But when he did not succeed, he gave in and continued to participate in the JCE.

We also heard from Mr. Kovacevic how Mr. Babic unsuccessfully tried to intervene in the case of Kijevo, actually the first case of ethnic cleansing in the SAO Krajina. However, the ethnic cleansing action took place, and Mr. Babic continued to participate in the JCE. Mr. Kovacevic also told us that in summer 1991, it was for Mr. Babic difficult to retract from what was put in motion, and this would have been considered betrayal of the Serbs in the region, that had he spoken publicly against it, Mr. Babic would have lost his political influence. Mr. Kovacevic also told us that Mr. Babic treated those in his immediate surroundings fair; yet, he - Mr. Kovacevic said, and I find it very remarkable - that Mr. Babic followed the guidelines of his political party. And I think this is actually the basis of Mr. Babic's failure and his becoming criminally responsible. We find here the ^{204BLANK PAGE 205} personal motive of Mr. Babic's participation in the JCE. It was not a deeply rooted nationalism; it was not hatred against the Croat people; it was not strive for material gain. He failed to distinguish himself from politics that he recognised to be criminal for the sake of not being isolated among the Serbian people, not losing his influence in politics, and not being called a traitor.

Postconflict behaviour was accepted as mitigating factor in the Plavsic decision. Let me, therefore, briefly address Mr. Babic's conduct after the persecution campaign. Milan Babic dissociated himself beginning 1992 from Slobodan Milosevic, Milan Martic, and the other members of the JCE. He finally found the strength to endure to be called a traitor, to be isolated, and losing his political position. The Prosecution submits that in the years 1994 and 1995, Milan Babic, as Minister of Foreign Affairs of the RSK, participated in negotiations between the Croatian and RSK authorities, encouraged and facilitated by international community. Mr. Babic made efforts towards peaceful cohabitation between Croats and Serbs. Ambassador Galbraith who testified in the Milosevic case about these negotiations said about Mr. Babic the following: "Nonetheless, I thought that he was the most charismatic of all the politicians in the Krajina and had the interest of the Krajina Serb population more at heart than any of them. I think he was the only one actually who had any concerns for the local population." In relation to cohabitation, Witness Galbraith said that Babic was more open to the idea of Serbs and Croats living together than others. ²⁰⁶ Witness Kovacevic told us about his and Mr. Babic's attempts to negotiate the peaceful reintegration of the Krajina into the Republic of Croatia along the lines of the Z4 plan. The negotiations failed, given the fact that Milan Martic and the parallel structure rejected all these efforts. It is my respectful submission that Mr. Babic should be given credit for his postconflict conduct.

My next point is voluntary surrender, guilty plea, and reconciliation. Let me begin with a brief review of the case history. Milan Babic initiated the first contact with the Office of the Prosecutor in autumn 2001. At that time, he was not indicted; however, his name was publicly mentioned in the Milosevic indictment. Shortly after Mr. Babic agreed to take part in a suspect interview. For many weeks in November 2001, January, February, and April 2002, he was interviewed in Serbia. During the interview, Mr. Babic was forthcoming and provided a detailed insight in the actions of the JCE, both in Croatia and Bosnia and Herzegovina. At the same time, he revealed his own participation and expressed his willingness to take responsibility. In November 2002, Milan Babic testified for 12 days in the Milosevic case. On 6 November 2003, Milan Babic was indicted. On the 26th of November, he voluntarily appeared for his initial appearance. At that time, he was fully prepared to plead guilty. On the 27th of January 2004, he indeed did plead guilty to persecutions, count 1 of the indictment, after which the Trial Chamber found him guilty of such. His guilty plea was a result of a plea agreement that is filed with the Trial Chamber, and it is a matter of public record. ²⁰⁷ Throughout the process - meaning from the initial interview until the finding of the Trial Chamber - Mr. Babic was willing to take responsibility. Most of those who pleaded guilty in this Tribunal had been in custody in the Detention Unit for sometimes very long periods before they pleaded guilty. Many of them pleaded guilty only shortly before the commencement of trial or even during trial when they and their counsels knew the full extent of the evidence against them. Trial Chambers, including the one of Mrs. Plavsic, accepted voluntary surrender to the Tribunal as a mitigating factor. Voluntary surrender meant that the accused in these cases surrendered to the Tribunal at a point in time when there was an indictment and an arrest warrant. Mr. Babic went much further than that. He presented himself to the Tribunal at a time when there was no arrest warrant issued against him. Actually, his surrender to the jurisdiction of the Tribunal took place in Serbia, in November 2001. He gave his interview knowing full well that he was incriminating himself and that what he said would be used against him in his own case. Mr. Babic's early acceptance of responsibility for the crimes, his voluntary appearance at the Tribunal, and his early guilty plea are unprecedented in this Tribunal. This is why I call this case unusual. Mr. Babic did not merely plead guilty to the count of persecution. In addition, in a public address, he described what he had taken part in, expressed sincere remorse, and called upon others to take his example. The significance of his guilty plea and his showing of remorse was highlighted into the evidence of expert witness Dr. Loncar. In his written report and his testimony, Dr. Loncar addressed the ²⁰⁸ importance of the guilty plea to the victims. He said that a confession of this kind presented moral satisfaction because the perpetrator finally has a name, and the victims' suffering is acknowledged. Mr. Loncar called it a step towards healing, towards forgetting the past and turning to the future. Babic's confession expressed the truth which so many victims had silently been saying for many years, and which had been denied by others.

Dr. Loncar also highlighted the effects of the guilty plea for reconciliation. He made it clear that the message to the victims that there is a person behind the crimes and not the Serb nation helps them and their fellow countrymen to overcome the fear that the past might be repeated, and opens the possibility for cohabitation. On the other hand, the guilty pleas had has an effect on the Serb population. It gives them opportunity to distance themselves from their leaders, to acknowledge that the crimes occurred in their name, which subsequently will also lead to reconciliation.

Whereas other similarly accused deny the truth about the crimes and thereby assist those who want to falsify history, Mr. Babic who once moved in the highest circles of power has made an example by freely and wholly admitting his role in the crime. Voices like the one of Mr. Babic are needed in an environment created by media, intelligentsia, government, and party officials that have led the public to believe that the Tribunal is an illegal institution designed to prosecute the Serbian people, a view that antagonises the peoples of the former Yugoslavia rather than reconciles them. ²⁰⁹ To reconcile peoples previously at war, they have to face the past and not cover it up. The facts of what occurred need to be established on which basis the Court convicts or acquits the individuals with a first and a last name, and not the collective responsibility of the Serbian people.

For all these reasons, it's my respectful submission that Mr. Babic should be given considerable credit for his conduct in the proceedings before the Tribunal.

Cooperation of Milan Babic as a mitigating factor is my next point. And let me first refer to the mission of the Tribunal. Following the reports of serious violations of international humanitarian law occurring in the former Yugoslavia, the UN commissioned an impartial commission of experts to analyse the situation in the former Yugoslavia. The interim report of the commission of experts was filed with the UN Security Council in February of 1993. Based on the contents of this report, the UN Security Council passed Resolution 808, in which it expressed its grave alarm at continuing reports of widespread violations of international humanitarian law occurring within the territory of the former Yugoslavia including reports of mass killings and the continuance of the practice of ethnic cleansing.

The Security Council determined that this situation constituted a threat to international peace and security and on 25th May 1993 passed Resolution 827 by which it established this Tribunal. In doing so, the Security Council was convinced that the prosecution of persons responsible for serious violations of international humanitarian law ²¹⁰ would contribute to the restoration and maintenance of peace. The establishment of truth by this Tribunal is a vital component of the efforts to restore and maintain peace in the former Yugoslavia. The mandate given to the OTP is to prosecute persons responsible for such violations; and to do so, it's necessary to unravel facts about events that quite often both states and individuals are unwilling or reluctant to yield. The ability of the OTP to fulfil its mission depends on its ability to obtain evidence.

In relation to the prosecution of crimes committed by perpetrators in the highest circle of power, it is difficult to obtain evidence of the decision-making provides in such high circles, structure and the actions of the joint criminal enterprise, in particular of those members of the joint criminal enterprise who publicly distanced themselves from the actions on the ground. To reveal the truth, the Office of the Prosecutor often is dependent on the cooperation of persons from within or very close to these highest circles. These potential witnesses, however, by cooperating with the Prosecution, have to address their own participation, and thus incriminate themselves. Rule 101(B) of the Tribunal's Rules of Procedure and Evidence address this situation and this conflict, and expressly provides that the Trial Chamber shall take into consideration "the substantial cooperation with the Prosecutor by the convicted person before or after the conviction."

And according to the jurisprudence of this Tribunal, substantial cooperation depends on the extent and quality of the information provided ²¹¹ by an accused, and can include the prior giving of evidence on behalf of the Prosecution; provision of new information, replete with the identities and names of perpetrators; substantiation and corroboration of existing information; and future cooperation including testifying on behalf of the Prosecution.

In our judgement, the cooperation provided to the OTP by Milan Babic has been substantial within the meaning and extent of the Rule. The Prosecution, in its sentencing brief, has outlined the form and substance of Mr. Babic's cooperation. For the benefit of the Trial Chamber, I will just address a few details, first in regard to information. The Office of the Prosecution has taken an extensive statement from Mr. Babic covering the dealings of the joint criminal enterprise around Slobodan Milosevic from 1990 through to August 1995, covering the wars in Croatia and Bosnia and Herzegovina. The transcript of this statement covers about 1.200 pages, detailing the acts and conduct of all members of the JCE, the subordinate organisations, and in particular the acts and conduct of Slobodan Milosevic. The Prosecution provided this statement in electronic form to the Trial Chamber. Mr. Babic expanded his statement after his relocation to a different country, after he felt that his family and he himself were safe, and after he could refresh his memory with the help of documents shown to him and intercepted conversations played to him during proofing. It is very significant to note here that at that time, Mr. Babic -- when Mr. Babic provided his statement to the Prosecutor, he did so without any promises of reward or benefit. He was fully aware ²¹² that all he said could be used against him and actually was used against him in his own proceeding.

Given the sheer size of the statement, I will highlight only some of the information that Mr. Babic has provided so that you are aware of the extent and the importance of his cooperation for my office. He provided us with detailed information about the organisation and actions of the Croatian Serb leadership, including himself, in 1990 through to 1995, and the support given to them by Belgrade, in particular Slobodan Milosevic, the Serbian MUP, and the JNA. He described more than 30 meetings with Slobodan Milosevic and other members of the JCE, including in particular Radovan Karadzic, in which the objectives and actions of the joint criminal enterprise were addressed. In his extensive statement, Mr. Babic explained the political philosophy behind the actions of the Serbian leaders in Serbia, Bosnia-Herzegovina, and Croatia, and how they went about achieving their goal of a new Serbian state.

Mr. Babic provided unique information about the cooperation of the various members of the JCE in the targeted territories and how they coordinated their actions. He described the pattern of attacks on towns and villages, and the subsequent persecutory acts against non-Serbs starting in the targeted areas in Croatia, and continued throughout Bosnia. And Mr. Babic told what he saw in both these countries. He detailed the forces involved in this and their command structures. Mr. Babic provided evidence of the arming of the local Serbs in Croatia and those involved in it; namely, the Serbian MUP, the JNA, and the ^{213BLANK PAGE 214} political leadership in Serbia.

One of the most important issues to this Tribunal and to historians is the involvement of the JNA in the wars in Croatia and Bosnia, in particular the claim that the JNA only gott engaged as a buffer between the warring local armed formations and only defended the Yugoslav territory and its troops. This claim was and is an issue in the Milosevic case. And as the transcript of this trial is a public record, let me simply refer to a few transcript references.

During the testimony of Borisav Jovic, a member of the SFRY presidency during the events, Slobodan Milosevic put to Mr. Jovic the following in relation to the role of the JNA in Croatia: Is it true that the JNA, apart from protecting itself and defending itself, endeavoured to prevent conflicts from breaking out and to stand between the two sides and only protected the Serb people when it was under attack, and that it did not engage in any activities?" And you find this, if you want to check, under transcript reference page 29.282. And Borisav Jovic throughout his entire statement confirmed this. And I will give you for ease of reference the other references throughout the Milosevic transcript, and this is 29.131, 29.149, and 29.150, 29.252, 29.282 and 83, 29.288 to 29.293, and 29.298 to 29.299.

Dobrila Gajic-Glisic, the former chief of cabinet of the Serbian Ministry of Defence at T27.900 referred to the following: "The armed forces" -- and that means the JNA -- "had to be used in Croatia because the Ustasha paramilitary formations began carrying out massacres which were repetitions of history. The JNA had to create a buffer between the ²¹⁵ Ustasha forces and the Serb population."

Mr. Babic, in his interview and later in his public testimony, made clear that this claim is untrue, and that the JNA sided with the Serbs in the targeted areas, shared the goal of the political leadership, and was fully engaged in the ethnic-cleansing campaign. Mr. Babic also put an end to the myth that the Serbs were only victims in these wars, and that they only defended themselves in the territories against genocide by the hands of the Croats and the Muslims. As an example - and again, from the Milosevic case - let me read to you from a statement of General Veljko Kadijevic, the federal secretary for National Defence, of the 3rd of October 1991. And it's an exhibit used in the Milosevic case. It's Exhibit 328, tab 14. And the transcript references are 10587 and 10.588.

Referring to what he calls the fascist regime in Croatia, he claims "we had only one goal, to prevent the bloody ethnic clashes and hinder the repetition of a genocide of the Serbian people." And he continues a little bit further: "At this moment, the army desires nothing else but to establish control in crisis areas, protect the Serbian population from persecution and extermination, and to liberate the members of the JNA and their families."

Mr. Babic in his interview and in his public testimony made clear that this notion was the product of a powerful propaganda designed to separate the peoples of Yugoslavia and to create an atmosphere of fear and hatred that prepared the Serb population for the idea of ethnic cleansing and for the persecution campaign that was to happen. ²¹⁶ I have already pointed out the perfidy of the propaganda machine at work that, as expert DelaBrosse explained, portrayed the Serbian people as the only righteous, victimised people in the former Yugoslavia, victim of genocide in the past and in the 1990s. Acknowledging that a persecution campaign was conducted against the other peoples in the former Yugoslavia, namely the Croats and the Muslims, remains very difficult for many people in Serbia and Republika Srpska to accept. Looking at the recent developments in Serbia, the Prosecution submits that there are still considerable efforts to deny the crimes that are charged in cases in the Tribunal. Let me take this opportunity to refer to paragraphs 256 to 260 of the sentencing judgement of Miroslav Deronjic in which contribution to prevention of revisionism was considered a mitigating factor. The facts provided by Mr. Babic in open court undercuts the ability of future revisionists to distort historically what happened in the territories claimed as Serb territories in the wars in the 1990s.

Many of the information provided by Mr. Babic is unique and will be significant in future prosecutions in this Tribunal, including the Krajisnik case, the Martic case, the Seselj case, the Stanisic and Simatovic case, and the Karadzic and Mladic case, should they be arrested and prosecuted here. All high-profile cases in this Tribunal involving Serb perpetrators will benefit from Mr. Babic's evidence. Let me also address the documentation provided by Mr. Babic. Mr. Babic provided the OTP with important original documentation. And we are talking here about -- of about more than 150 documents provided or ²¹⁷ explained during the interview. Even more documents, including those provided and those authenticated by Mr. Babic, were tendered through him in the Milosevic case, specifically documents proving the financial and material support provided by Belgrade to the Serbs in Croatia in the years 1991 and 1995. He authenticated and commented on huge amount of intercepted conversations between members of the joint criminal enterprise, including himself, Milosevic, Karadzic, Stanisic, and those conversations referred to arming of the Serbs in the territories, actions to be taken to deceive international negotiators, and military actions on the ground.

In addition, he provided or authenticated military orders and items that revealed the ideology standing behind the military actions on the ground. Mr. Babic has provided the Prosecution with the identities and roles of numerous perpetrators involved in the actions of the joint criminal enterprise that were unknown to the Prosecution or whose involvement was unknown. I will not elucidate on this further. Let me speak about mitigating factor, remorse. Your Honours, I'm a member of the OTP since almost nine years and I have meanwhile investigated and prosecuted a number of cases. I was always very affected by the statements and testimonies of victims, their degree of traumatisations after long, long years after the events; their long-term physical and mental suffering; and in particular their feeling of guilt years after the fact, guilt that they had survived, guilt that they had not protected their relatives. Mr. Loncar spoke about this, too. And at the same time, I had dealings with many perpetrators that seemed to be ²¹⁸ totally unaffected by the suffering that they caused. They did not show remorse, and they did not feel any guilt. Instead, indulged in self-pity and considered themselves as the victims. I saw cases of total denial, slander of the victim witnesses, and smirking when victims broken down in court and cried.

Mr. Babic is different. We know from him, his wife and Mr. Kovacevic that he felt remorse. And not only here in Court; he felt remorse early on. And he felt guilt already while the persecution campaign was underway. Mr. Babic joined the Milosevic case, and in his own proceedings had publicly expressed his remorse fully and unconditionally. And he has expressed his hope that the guilty plea will assist the peoples of the former Yugoslavia.

I am convinced that his showing of remorse is not a tactical move, but genuine. The Prosecution submits that this expression of remorse is noteworthy, since it is offered from a person who formerly held a leadership position.

As I said in the beginning of my remarks, this case for which Mr. Babic has admitted his guilt is a serious and grave crime for which I would not hesitate to ask for severe sentences as I have done so in past cases. I have endeavoured to explain why I am not making such a request in this extraordinary case. All the mitigating factors in this case - in particular, the early guilty plea, Mr. Babic's general remorse and contribution to reconciliation, and principally his very substantial and important cooperation with the Tribunal - have led me and my colleagues to the conclusion that a different sentence is merited in this case. ²¹⁹ The Prosecution on purpose did not recommend a sentencing range like in other cases with a minimum sentence. Our recommendation only gives the maximum sentence of 11 years, and we recommend that the actual sentence should be below this.

As I said in the beginning, it is a difficult task to determine a just sentence for Mr. Babic that on the one hand acknowledges the gravity of the crimes and the mitigating factors and on the other hand sends the right signal to those who consider to take similar steps to Mr. Babic; that is, to take responsibility and to assist this Tribunal to fulfil its mission.

I hope that my closing remarks will assist the Trial Chamber.

JUDGE ORIE: Thank you, Ms. Uertz-Retzlaff. Would you allow me, before we have a break, to ask for one clarification. Let me just try to find the proper page. I think it was on page 30. There was one passage which was not quite clear what you meant to say, but it could be my bad understanding of the English language.

You said, "in the following sequence, when you follow the next pages in this transcript of the interview, he actually made clear that these destroyed churches were there for decades, since actually the Second World War, and he suddenly saw them anew." It was not entirely clear to me what you exactly are explaining to us. Could you try to make it more clear for me.

MS. UERTZ-RETZLAFF: Yes, Your Honour. What I wanted to point out is that the media campaign, this propaganda from Belgrade, were ²²⁰ actually changing the reality for Mr. Babic. As he addressed it himself, there were churches destroyed, Orthodox churches, since from the Second World War, and he had never really taken notice of it any more because they were just there. And suddenly, after having wrecked those things, he suddenly saw them. He suddenly acknowledged it again as if it were something new.

JUDGE ORIE: Now I better understand it. These churches were never repaired or restored.

MS. UERTZ-RETZLAFF: They were never repaired or restored.

JUDGE ORIE: It was not part of the picture of what Mr. Babic saw.

MS. UERTZ-RETZLAFF: That fact that they were never restored was never an issue for him in the past, but suddenly it became an issue.

JUDGE ORIE: That is now clear to me.

[Trial Chamber confers]

JUDGE ORIE: Then we'll have a break for I would say until 20 minutes to 12.00. And then I have to move a bit. I would expect the Defence to finish its final remarks not later than a quarter to 1.00. We adjourn.

--- Recess taken at 11.23 a.m.

--- On resuming at 11.42 a.m.

JUDGE ORIE: Before I invite the Defence to give its closing remarks, I would still have one small question for you, Ms. Uertz-Retzlaff, and that is the following question: When we discussed earlier today the knowledge of Mr. Babic on civilians being ²²¹ killed during attacks, although not the specific attacks mentioned in paragraph 15 under (a) of the indictment, you made a distinction between execution, which I understood to be an execution of persons being taken together and then killed, and what you called civilians being killed during an attack. I understood that to be if you attack a village and you raze to the ground a house when there are civilians in there, they will be killed as a consequence that have attack. And of course attack has a very specific military meaning.

But from a legal point of view, would the killing of 5, or 10, or 30 people, driven together after the village has been attacked and then summarily executed, would it from a legal point of view make a difference whether they are killed when they are still in their houses and when the house is shelled or razed to the ground, or whether they are driven together and then in a group being executed? Would the one be less murder than the other one? Could you give your view on the legal aspects of what you explained in more factual terms.

MS. UERTZ-RETZLAFF: It's more a degree in the criminality, to let's say kill people during an attack by let's say the shelling from the forces, by setting houses on fire, is to me a different kind of killing than the one where you actually gather people together, separate men and women, and then kill the men in front of the eyes of their relatives. These kind of actually killings we have specified in the indictment in particular.

JUDGE ORIE: Yes.

MS. UERTZ-RETZLAFF: And we make a distinction in relation to ^{222BLANK PAGE 223} criminal energy that is actually connected with these kind of killings.

JUDGE ORIE: Yes. Do I understand your answer properly when I say that the crime as such is not different, but the way in which such a crime is committed distinguishes it from -- if you drive people together and then kill them in view of their relatives or other inhabitants of that village, circumstances are different. But it's murder in both cases.

MS. UERTZ-RETZLAFF: Yes, this is how I see it.

JUDGE ORIE: Yes. Thank you very much. Then since you indicated, Mr. Mueller, Mr. Fogelnest, that you would share the time allocated to you, who is going to speak first?

MR. MUELLER: I'm speaking first.

JUDGE ORIE: Mr. Mueller, please proceed.

MR. MUELLER: Mr. President, Your Honours, before I start into my final arguments, I would like to ask you to go for three or four sentences into private session.

JUDGE ORIE: Yes. We'll turn into private session.

(Private session)

(7 lines redacted) ²²⁴

(20 lines redacted)

(Open session)

MR. MUELLER: Just wanted to give an impression of how far these repercussions of intimidation were going. They went right into this courtroom, today, this morning.

Mr. President, Your Honours, I opted for making my intervention ²²⁵ brief because on one hand, I strive to avoid the impression of inappropriate excuses inherently consisting of too many words, and on the other hand everything relevant for your decision is made available already to you today.

Mrs. Uertz-Retzlaff, the distinguished representative of the Office of the Trial Prosecutor, has presented and evaluated many arguments in a way we as Defence counsel - and permitting me to speak for my colleague - could not have done any better. She referred to the quality of the cooperation that also included the presentation of documents the investigating authorities had not been aware of at a point of time, and that Milan Babic could preserve under dramatic circumstances.

I would like to very briefly comment on the tasks and office Milan Babic had. His office as president of the SAO Krajina and of the RSK by far did not bestow the power upon him that you usually would have expect to find and that initially perhaps also OTP assumed he would have been granted.

As a logical result, the OTP and the Defence had to differentiate the de facto powers from the de jure position Milan Babic had as adequately reflected in the briefs of the parties. I do not want to expound on these briefs any further, which were filed early last week. And by this way, I would like to avoid repetition of the same line of arguments.

While my colleague will speak later on, as I presume, about the appropriateness of the sentence and a variety of other aspects, I rather ²²⁶ would like to focus on the facts and circumstances that I consider to be most important and that are dear to me, like, for example, the ones you will find in Milan Babic's statement and the ones provided in the other written statements that were presented to you. Sometimes they are not that obvious, and one has a little bit to read between the lines. Expounding on mitigating factors in general would be redundant, and particularly after what we have heard today by Mrs. Uertz-Retzlaff, since I'm sure you will give all of them your most appropriate consideration. So instead I would like to focus on the extraordinary facts and extraordinary circumstances related to the case of Milan Babic and related to his person.

The admission of his guilt, his confession and repentance, his cooperation, and the suffering of Milan Babic himself and of his family for years partly caused by his own wrongdoings and partly caused by the wrongdoing of the coperpetrators; these are the main issues I feel obliged to put forward to you today. His wife spoke about him loud screaming in his sleep, him waking up with a start, him having many sleepless nights, the nightmares and frightening dreams. According to her, all of this started as early as 1991. So I do not only speak about a person who is afraid of a sentence and thus cannot find his sleep and who is suffering from severe headache. But I also speak about a man who for a long time has been in a severe and profound moral dilemma because of what he did and of which has been accusing himself of ever since. Once he was at a crossroad and opted for the wrong path. And very quickly, he became aware of his dreadful thought, thus finding his ²²⁷ way back to the correct path very soon. Mrs. Uertz-Retzlaff - and I'm very grateful to her for this - has elaborated extensively on this today. Regarding his remorse and repentance, I would like to say the following: From the very onset, his own moral obligation prevented Milan Babic from challenging these charges brought up against him. He always expressly said that contesting the charges raised would be impossible due to his own moral misgivings. With that, he could not have lived, as it looks to me, it would have been impossible to him to look into his children's eyes. That's how I know the person Milan Babic. In case there might still linger some doubts as to the sincere repentance of Milan Babic, one should once again consider Milan Babic's marked somatic symptoms described by his wife. They can only stem from his insight that there was wrongdoing on his part and that he tremendously suffered from what he himself referred to inter alia as ethnoegotism.

As I said, he quickly found his way back to moral integrity and very soon turned away from those who had tricked him into following them and had him become a member of the joint criminal enterprise. Alas, it was too late to make things undone, although he was able to forestall further aggravating his personal guilt because of his personal turnaround and him turning away from the goals set by the other members of the JCE. It is only natural and conclusive for Milan Babic to opt for an unconditional, frank, and wholehearted cooperation with the OTP as a starting point for establishing the truth, and also for finding the truth within himself. This was a continuous process developing over the time ²²⁸ and emerging already during the first interviews with OTP carried out in Serbia on a distinct place.

It is particularly important to note that he did more than to merely admit his own guilt and admit his own wrongdoing, the outcome being a comprehensive and permanent cooperation with the law enforcement entities. And this cooperation for sure has not come to its end, as it was said during the course of this morning.

It is not a secret that for days Milan Babic testified as a protected witness in the Milosevic trial, and even decided to drop his pseudonym and cancel other protective measures to hide his identity. This, too, was part of the development he personally underwent. He first had to carefully weigh the fear of his family of revealing publicly his identity against the necessity to reveal his identity, important for establishing the truth and for fostering reconciliation. There is no doubt that Milan Babic has and does accept his coresponsibility in the distress, grief, and agony suffered by the victims of these inhumane crimes. Yet, as his Defence counsel, I also have the task to draw Your Honours' attention to the agony his family and he have been suffering from.

But in the end, the only thing that counts is the fact that he actively embarked upon the process of revealing the truth. If you were to ask him what were his feelings, then he would tell you "my family and I feel a tremendous relief and a lot of alleviation." In Serbia, there are many people who consider him to be a traitor. He is also stigmatised by the church as a traitor and he was ²²⁹ threatened with anathema. In the people's minds, there is just back and white; either one is a soldier, fighting for the so-called right cause, means the Serbian cause, or one is a traitor, an enemy. He fell between two stools. And he made up his mind to quit for good. And right now, the OTP and his Defence counsels are expressly the only ones who speak for him. We sincerely hope that the close and intimate ties between his family and himself will continue to support him in these difficult moments, and that all his family members who suffer from their isolation will survive this ordeal, and that all one day they will enjoy living together as a family again.

And that leads me to truth-finding, pacification and reconciliation in general. Milan Babic is the first one of the members of the joint criminal enterprise, as I see it, who had both the courage and the stamina to testify and cooperate with the OTP, being fully aware of jeopardising his life as well as the lives of his family. There had been three attempts on his life back in 1991 and 1992, which he survived. This process of purification and self-healing, the plea agreement, plus the full extent of his cooperation, make him so different from the others who either only made a confession with regard to their own wrongdoing or provided the OTP just with limited information. And this is the very moment when the defendant, willing to confess, has made his unique contribution to history. And for sure, that will be given due consideration.

I cannot refrain from depicting the present and dominant public opinion in many parts of the former Yugoslavia as a stubborn reluctance ²³⁰ to accepting the truth as an appropriate medicine and appropriate therapy on the way to recovery for this country where the social fabrics were destroyed and twisted so extensively for more than one decade. This is also one of the reasons why I have to say that I feel great respect for Mr. Milan Babic, as an individual who was able to return to the right path after the deplorable and horrible face of abberation. Your Honours, Milan Babic is not an important historical figure because he was a Serb leader or the president of a self-declared Serb political entity called SAO Krajina, or RSK. He became an important historical figure in a completely different context. By coming forward so early with truthful and comprehensive information, by coming forward with confession and remorse, by voluntarily offering his cooperation by expressing his readiness to appear before this Tribunal, he has developed from a politician of questionable and mediocre calibre into an important figure that participants in the creation of an accurate historical record.

Hopefully, and for the sake of truth-finding, reconciliation and peaceful development in the Balkans on longer terms, he may be a role model inducing others to follow him.

Milan Babic's guilty plea on January 27 of this year was not just made because others already did so, but was a deliberate decision made by him; genuine, as Mrs. Uertz-Retzlaff said today. Right from the start of our client/lawyer relationship, I realised that deep down in his heart there has been the strong desire for historical truth. Milan Babic learned that this historical truth required him to confess his own guilt. ^{231BLANK PAGE 232} And finally, and to full extent, he did so on February 23, 2002. And the relevant transcript has already been tendered into evidence. Later on, and I mean in those days when Milan Babic was unwilling to wait until his sentencing hearing to express his remorse and confess his guilt before this very Tribunal, he decided for the unusual approach of doing so already on the occasion of his guilty plea on January 27 by coming forward with a statement which we all know. Everybody willing to listen and willing to surrender to the historical truth will be deeply moved, maybe even steered by Milan Babic's plea and his statement. Like Mrs. Plavsic, Mr. Babic will become a role model for those willing to acknowledge the truth. Maybe Milan Babic's contribution goes even further, as outlined this morning, and substantiating importance of contribution to finding the truth.

What other means do we have at our disposal for helping the people in the Balkans to heal their wounds and come to terms with their past than the publicly claimed willingness of their former political leaders to contract to truth-finding, admitting their own guilt, and show repentance? What other remedies do we have? The Balkans have been described by the Nobel Prize laureate Ivo Andric who comes from that very region as a geographic region where hatred is endemic; where one's hands have to be stained with blood in order to be called a hero, and where reason and sound restraint often are disqualified as treason and cowardice.

This way of establishing the truth and re-establishing peace is very fragile. It's like a bird in our hands. Allow me to add a few ²³³ comments on the benefit of truth-finding mechanism, which to my opinion, of course, must always commence as soon as possible and which is the basis for reconciliation as we all know. I was glad to hear former US Secretary of State Dr. Madeleine Albright when she stated in the Plavsic hearing December 17 the past year, and I quote: "I think reconciliation was the main purpose behind having such a Tribunal." Mrs. Albright was also among those who called us, and I quote again, "to show our respect for those who have pled guilty." And this was also her who listed the tasks of this Tribunal, putting the reconciliation as a task of prime importance. In a certain sense, and please allow me to add that, in a certain sense, one can say she was one of the founding members of this Tribunal in her capacity as the then-US Ambassador to the United Nations and representing the United Nations on the Security Council. Please, let me refer to another very important statement made by Dr. Boraine. He was cochair of South Africa's Truth and Reconciliation Commission. He stated that criminal-justice systems are not designed to determine guilt or innocence, but also to serve creation of a peaceful society. In the course of his testimony in the Plavsic case, he expressed his conviction that accepting responsibility for terrible crimes can have a transforming and dramatic impact on the perpetrator and on the victims, and of course on society. And according to Dr. Boraine, this is a significant factor for pacification.

Having said this, Your Honours, it is evident that confessional statements and an extensive and ongoing cooperation with OTP is the best way to fulfil the objectives of the ICTY; and in addition to this, it is ²³⁴ a powerful tool substantiating the legitimacy of this Tribunal. Your Honours, thank you for your attention.

JUDGE ORIE: Thank you, Mr. Mueller. Mr. Fogelnest.

MR. FOGELNEST: Your Honours, I can advise you that I will probably be more brief than I had anticipated, primarily because Mrs. Uertz-Retzlaff covered much of what I wanted to say. And not surprisingly, she did it in a more thorough and eloquent fashion than I would have been able. If I may share some thoughts with you which I hope will be helpful in having you perform your difficult task. It strikes me that part of the legacy and the contribution that this Tribunal has to make is to provide humanity with some insight as to how things as hard as crimes against humanity can occur. And from that insight, perhaps we as a species can learn how such crimes can be prevented. As we're convened here, there is ethnic cleansing going on in the Sudan, for instance. A thousand people a week are being killed; tribeswomen are being systematically raped; 7.000 people have been driven from their homes and the Sudanese army is bombing the survivors. Last week or so, people were killed in Kosovo, again. It is my hope, and I think the hope of all of us, that the work of this Tribunal is at least a beginning to gain the insights to bring an end eventually to human beings committing this sort of inhumanity.

One of the lessons that I think is important, that is to be learned from Babic's case, is that such crimes do not occur solely from hatred or greed, for Milan Babic the evidence is clear was not filled ²³⁵ with hatred. And he certainly wasn't filled with greed. Unlike others, didn't seek to enrich himself from this situation. What's to be learned is that fear and vanity can also be precipitating factors in such horrible things. Fear is an irrational emotion. Fear was inspired by the propaganda. And fear is still being inspired by governments and individuals around the world. And the lesson to be learned is that if we act on fear, that these are the kinds of things that should occur. Greed; well, he certainly wasn't subject to that. What happened to Milan Babic as a result of his fear and his vanity, his desire to remain in power, to remain in his political position? Today, he has nothing. He is truly indigent. He will live the rest of his life with feelings of guilt for the wrongs he has done. You have heard how those things manifest themselves physically. He has lost his home. He has lost his homeland. He has lost his profession. He will probably never be able to see his mother and his sisters again. Another collateral consequence is he has imposed the results of this on his wife and his children, and he must live with the pain of knowing that he has done that. They, as well as he, must live in hiding the rest of their lives. They have all had to live under the restrictions placed upon them for their own security. I certainly won't go into them, and even I if were to at this point, I can't tell you much about them because they are so severe that the lawyers are not permitted ot know exactly what is involved. We asked if we could discuss that with Mr. Babic. In any event, we know it's not that it's the same as the freedom under which all of us live under. ²³⁶ One of the factors that is generally given due consideration in mitigation is the fact that someone had served time in the Detention Unit and how they comported themselves. That factor was only present here for a period of four days. The Court may want to give some consideration - although I don't think it has ever been done before because it's never been relevant before - is how he has comported himself under the restrictions he and his family have had to live. He has lived for years, literally years, facing the prospect of serving a prison sentence in a foreign jail, in relative isolation in a culturally unfamiliar environment, unable to communicate and socialise with his fellow inmates and prison personnel. And he will do so as a protected witness. We're not really sure what that means, but we can assume, based on our experience from our own jurisdictions, that he'll be ostrasised by other prisoners and perhaps even be in physical danger, and may require to be confined for whatever period the Court deems appropriate in even more restrictive situations than other prisoners who are similarly situated would be.

Now, if this Tribunal after performing your function decided that he should not even serve one more day in jail, all of those things ought to be enough to deter any sane person from committing the wrongs that Milan Babic did. Another lesson to be learned is that this Tribunal, I believe, has reinforced if not established a very important legal principle here. Were there ever before a question, were there a grey area, it's now abundantly clear as a matter of international law that a person holding political office, no matter what their motivation, no ²³⁷ matter what the circumstances, no matter what their fears, may not participate in crimes such as occurred in the Krajina while serving in that office. Even if it's only signing papers, even if it's only achieving funding, it is wrong. It's against the law. And that principle is firmly established through this case as it never has been before.

There's no question that once Milan Babic became aware of the methods being used to achieve this Serbian state, or if you will, to protect the Serbian population, that once he knew what those methods were, he had a moral and legal responsibility to refuse to participate in that criminality, and he failed to meet that responsibility. Let every political officeholder in every country in the world be put on notice: They are indictable. And at least, if there is no mechanism because they might refuse to sign a treaty which would render them subject to a jurisdiction of a court, then they are morally reprehensible. Let them know from now on.

He stayed in office. He executed his duties. He didn't speak out against what he knew to be wrong. And his nationalistic speeches, although I must say relatively moderate compared to some others, they placed fuels on the fire of hatred, and they caused harm. And let those who would make such speeches, let those who would engage in such activities know what this Tribunal does.

It's not a defence that if he had not done the right thing, he would have lost his office. It's not a defence that if he had not stayed in office, someone else would have come in and done the job. It's not ²³⁸ even a defence that he was potentially subject to assassination, because we know that these things were occurring. Sometimes it's not easy to do the right thing, but it must be done. And a failure to do so can convert one from being a well-meaning person into a criminal. That's what happened here, and that's what one of the lessons the world can take from this proceeding.

What sentence should be imposed? It's extremely difficult to calculate what constitutes a just sentence, and I won't argue for a specific sentence for a couple of reasons. First of all, any recommendation I would make I must confess is tainted. I met Milan Babic in November. And in the last several months, I have grown to empathise with him, to respect him, to care for him. I'm emotionally involved. This Tribunal can't make decisions based on emotion. It has to be reason. The authority, the prestige of this Tribunal and the work it has done doesn't permit emotional responses. And my feelings are emotional. My recommendation would be emotional.

How do you convert the appropriate factors into a mathematical formula which then translates into a period of incarceration? I have no idea. I don't know how to address that. But that, indeed, is the job that you must do. I don't envy you that responsibility. I know that I'm incompetent to do it. I wouldn't know where to begin. How do you weigh the fact that a guilty plea, is it worth 20 per cent? Is it worth 47 per cent? I don't know how Judges do that. And you have no guidance. It's not addressed in the statutes. It's not addressed in the Rules. It's not discussed in the jurisprudence as to how the weight is. And ²³⁹ indeed, reasonable people looking at the same facts, considering the same factors can weigh them differently. You all don't even have to agree. As recently as last week, a Chamber in this Tribunal, two of the Judges thought the appropriate sentence would be 10 years, another Judge acting in good conscience felt compelled to write a dissenting opinion for a sentence twice as long. The same evidence, the same information in front of the three of them. If one had changed his mind, that individual would have received a sentence twice as long. We're dealing with very vague sorts of concepts here, and I can't offer much thought on how to weigh them.

It seems as if in this particular case, the case of -- before I address that, let me say this: I have no doubt that there are some people who believe and would argue that no matter what his role - the limitations of it, the extent of it - no matter what the mitigating factors, no matter what contributions he has made toward peace and reconciliation, they would have Milan Babic dead. There's no doubt that there are people that would believe that. I went and looked at the Nuremberg cases when I became involved in this process, and I was shocked to see how many of those sentences resulted in death by hanging. But we as an international community have progressed beyond that sort of barbaric vengeance. The majority of the nation states of the United Nations have abolished the death penalty, informing this Tribunal it was specifically precluded. So those who would argue that Mr. Babic should be put to death can never be satisfied by the work of this Tribunal because it has institutionalised that as civilised people we will not ^{240BLANK PAGE 241} have that sort of a penalty under any circumstances.

At the other extreme, I have no doubt that there are others who might say that he has suffered enough already. His role in these crimes and his courage in coming forth to speak the truth coupled with the other mitigating factors or such, that he should receive no additional time in prison. I confess, that that would be my personal feeling, but I also confess that it's tainted by my emotions. And that's not the way you need to make a judgement. You have to find the ground in the middle that serves the interest. Prosecution has recommended that it be less than 11 years. And this, of course -- they haven't told you how much less. I wonder what their personal feelings are. But they also did not express them.

The Rules, the jurisprudence and the Statute don't require you to afford any weight to the recommendations made by either side. You're free to disregard these recommendations to make your own personal individual determination based upon your analysis, your conscience, and what you think to be right and wrong. What a burden. What a burden you men have. I'm glad it's not mine.

But this 11-year recommendation, less than 11 years, invites a comparison with the Plavsic case. And I won't go through all of it because Ms. Uertz-Retzlaff covered it so well, but I do want to highlight a couple of things. Entry of Mr. Babic's plea was before he was indicted, before he was arrested. Biljana Plavsic -- who, parenthetically, called him a traitor -- made her initial appearance in this Tribunal on the 11th of January 2001. Her guilty plea was entered ²⁴² on October the 2nd of 2002, almost two years later -- after she knew that there was a high likelihood of conviction, I infer. With respect to their role, various degrees of responsibility, in paragraph 1 of the Plavsic judgement, the Court found that she embraced and supported the objective of ethnic cleansing. I guess Mr. Babic did, but not in exactly the same way and under the same circumstances. And I don't how to articulate that any better, but I think that the Tribunal ought to have a sense of that at this point.

Part of his crime involved his public statements and the fuel he fed to the fire. You'll have I think at this point an understanding of how that occurred and what his motivation is. I would invite the Court to take a look at this DelaBrosse report and specifically footnotes 38, 45, and 151. She said horrible, horrible things, racist things, ugly things. You ask the Prosecution to provide you with the worst of what Mr. Babic said. I'm not disposed to read these in Court right now, but if you'll take a look at them you'll see that the quality and the nature, the hatred expressed by her. So that if that is a legitimate mitigating factor and it should weigh more heavily in his favour, the nature of what was said.

There's a slight legal issue that needs to be addressed, and that is in their papers the Prosecution has asked -- argued that his leadership role should be an aggravating factor. Simply stated, and it has been confirmed in the most recent Mrdja opinion, I believe, that was just issued two days ago, that the leadership role as a civilian political leader per se does not give rise to an aggravating ²⁴³ circumstance; that it is to be evaluated on the facts of each particular case, and that's the way to do it. They have cited cases where it was used as an aggravating factor, but I think that you have to look at the particular facts of this case.

I suggest to the Tribunal that the proper way to look at this is was he a leader of the criminal enterprise? It strikes me as inherently reasonable to find an aggravating factor where one is leading criminal enterprise. However, if one is merely a political leader and only a participate in that enterprise, that that should not be construed as an aggravating factor.

Perhaps the most significant of the mitigating factors is substantial cooperation. It presupposes a guilty plea. It presupposes at least a claim of remorse. I think it's brilliant jurisprudence that the Trial Chamber has to make an independent determination and be satisfied that that remorse is sincere. It recognises that one who cooperates of course has to enter a guilty plea, but may claim remorse for the purposes of fostering the cooperation, and when you look at it closely you can determine that it's simply a sham.

Substantial cooperation, again; I don't think we need to have any time consumed discussing the significance of that. But in weighing the sentence, all other factors being equal, if the Court chooses to compare the Plavsic situation to Babic, and that of course is totally within your discretion -- and each case is unique. I don't mean to undermine or suggest that that principle should not be applied -- if that is to be applied, she refused. Now, you can't make that an aggravating ²⁴⁴ circumstance. That's discussed in the jurisprudence, and indeed an individual has a right to do that.

If I were the Prosecutor, I would have argued that that undermined everything else. I don't want to throw stones at someone that's not here, but I would ask you to weigh very heavily that Mr. Babic did it all. His sincerity is complete. He implicated himself, told everything he knew. When you have to do these vague calculations of weighing what is right in terms of sentencing, and there is to be some proportionality for the Court to maintain its proper authority and legitimacy, you can't have random sentences, that's obvious, then his sentence has to be substantially less than hers. Of course, I don't really know what "substantially" means in terms of real numbers, but it seems that that difference ought to weigh very heavily in your decision. Mr. Whiting yesterday and Ms. Uertz-Retzlaff today alluded to -- just let me refresh your recollection with Mr. Whiting's words because I think they were well put and apt. "It is an uncomfortable reality in the search for truth that only by hearing the testimony of those who were on the inside, those who played a role in the crimes themselves that the full truth of what happened and who was responsible will be known. For these reasons, the steps that the accused has taken should be encouraged by this Court. Others in his position should be encouraged and should get the message that it is important and valuable and worthwhile to step forward, take responsibility, and tell the truth." The sentence you impose on Milan Babic will convey that message.

The collateral effect of that sentence will be to say "This is ²⁴⁵ how we view you. This is how valuable we believe this is." And it goes without saying, the less harsh the sentence, the more people we can encourage, the easier it will be for people to come forward. Now, it cannot be stated enough: Any leniency this Tribunal deems appropriate to give him does not undermine the gravity of the offence, does not for a moment suggest that he's not responsible. It is a matter of grace. All of these mitigating factors are a matter of grace. That's clearly defined.

In closing, I just want, if I may, to cite words that are better than mine. Last Tuesday, the opinion in the Deronjic case was published. There was a separate opinion by Judge Mumba. She said: "International justice in cases similar to these in this Tribunal is not about unfair retribution. If that were the case, humanity should forget about reconciliation and its offshoot, peace. It is my humble view that this Tribunal is not about vengeance, using the pen as the firearm, much as the victims's plight has been acknowledged. That would be erroneous. Such a practice would amount to accepting the erroneous view that you can conquer hatred with hatred. This in my view does not work. Vengeance may be manifested in terms of a harsh sentence for an accused person who has pleaded guilty. In my humble opinion, rehabilitation after turmoil may serve to reduce the incidents of political instability and conflict."

I thank the Tribunal for the opportunity to participate in this historic event. I thank the Office of the Prosecutor for the honourable way in which they have conducted themselves. And I thank Mr. Babic for ²⁴⁶ the honour of having been able to represent him.

I hope that my remarks can be of some assistance to you in your difficult task.

JUDGE ORIE: Thank you, Mr. Fogelnest. I would have one question for you. You referred to the recent decision in the Mrdja case in respect of the acceptance of civilian political leader position as an aggravating circumstance. But were you --

MR. FOGELNEST: Well, once again, Your Honour, I'm wrong. It is not the Mrdja case --

JUDGE ORIE: I thought you might --

MR. FOGELNEST: It's the Deronjic case, and it's paragraph 195.

JUDGE ORIE: I thought it would be. But just to be sure of that, I asked you.

This, then, almost concludes this sentencing hearing. Mr. Babic, it was all about you, the sentence this Chamber will have to determine in respect of you. Is there anything you'd like to add to what has been said already? And a lot has been said.

THE ACCUSED: [Interpretation] Thank you, Your Honour. I've said that I'm here, and I am in your hands. Thank you.

JUDGE ORIE: Thank you, Mr. Babic. Then finally, we still have to take a decision on the admission of the exhibits tendered by the Prosecution. And no exhibits during this hearing have been tendered by the Defence.

Mr. Usher, would you please read the numbers, the PS numbers, ²⁴⁷ what they stand for, so that we can pronounce a decision on that. And may I, before this is done, ask the Prosecution whether the corrected or at least the improved and paragraph-numbered version of the statements is already presented or not yet.

MS. UERTZ-RETZLAFF: Ms. Karper has here the corrected versions.

JUDGE ORIE: Yes. Could she perhaps, please, then give them -- I would ask the assistance of the usher to have them be given to the Registrar.

They would then replace the... Yes, they replace the statements as we had them before. I see that now in the new version, they also got new ERN numbers because they are different. Could you then, Mr. Registrar, please read what has been tendered so we can give a decision.

THE REGISTRAR: Your Honours, the exhibits tendered yesterday by the Prosecution are as follows:

Exhibit PS1 are the redacted statements of five witnesses. Exhibit PS2 is a map of the RS from 1993. Exhibit PS2.1A is the translation of the text of the map. And the Exhibit PS2.1B is the text of the B/C/S version of the map.

Exhibit PS3 is a report of Colonel Ivan Grujic, titled "Missing People, Displaced People, and People Killed in Republic of Croatia during the War Years, 1990 to 1992."

Exhibit PS4 are the selection of quotations of the accused Milan Babic from his testimony and interviews with the OTP. Exhibit PS5 is the transcript of testimony of Peter W. Galbraith ²⁴⁸ in the case numbered IT-02-54-T, the Prosecutor versus Slobodan Milosevic, on the 25th and 26th of June 2003.

Exhibit PS6 are the list of documents admitted through Mr. Milan Babic in case numbered IT-02-54-T, the Prosecutor versus Slobodan Milosevic.

Exhibit PS7 is the CD-ROM containing complete transcript of Mr. Milan Babic's testimony in case number IT-02-54-T, the Prosecutor versus Slobodan Milosevic, and interviews with the OTP. And finally, Exhibit PS8 is the expert report of Dr. Mladen Loncar, including his curriculum vitae.

JUDGE ORIE: Yes. PS1 is not the version tendered yesterday, but PS1 is the version that has been presented to the Registry today. That is a new version in which the paragraph numbering is the same in all languages.

Since I do not expect, but I didn't hear any objections, these exhibits are admitted into evidence.

MS. UERTZ-RETZLAFF: Your Honour, just one point. The Exhibit 6 should also include a list of documents that were --

JUDGE ORIE: Disclosed, I think, not only --

MS. UERTZ-RETZLAFF: It's actually two lists of documents, one used in the interview and one during the testimony.

THE REGISTRAR: Thank you, Madam Prosecutor. The corrections have been noted.

JUDGE ORIE: This is then corrected. And the Exhibit 6 consisting of two lists is admitted into evidence. ²⁴⁹

MS. UERTZ-RETZLAFF: And there is one more point, and it's an omission on my part. Yesterday already, Dr. Loncar gave me the book title that he mentioned, but unfortunately I have it on my desk. And he also mentioned that he would send on Monday a fax with additional literature references to his interview --

JUDGE ORIE: Yes.

MS. UERTZ-RETZLAFF: -- method and we will provide a further submission just giving those titles and the book title on Monday.

JUDGE ORIE: Yes. If the Defence would agree with this proceedings, that means that what is submitted in writing to the Chamber could be taken into consideration when we are considering what sentence should be imposed. And of course, there is an opportunity to protest against it if it contains anything unexpected and unwished.

MR. MUELLER: We agree to that.

JUDGE ORIE: Thank you very much, Mr. Mueller. That means that we are now at the conclusion of this sentencing hearing. The Chamber will give its sentencing judgement in due course and will issue a scheduling order prior to that. I cannot possibly tell you how much time it will take. We'll seriously consider whatever the parties have been brought to our attention, and we'll try to move on as quickly as possible.

The Chamber stands adjourned.

--- Whereupon the Sentencing Hearing adjourned at 12.48 p.m.