Tribunal Criminal Tribunal for the Former Yugoslavia

Page 28

1 Tuesday, 27 January 2004

2 [Further Initial Appearance]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 11.16 a.m.

6 JUDGE ORIE: Before we start, I've got no transcript on my screen.

7 It's okay now. It's okay.

8 Mr. Registrar, would you please call the case.

9 THE REGISTRAR: Your Honours, Case Number IT-03-72-I, the

10 Prosecutor versus Milan Babic.

11 JUDGE ORIE: Thank you, Mr. Registrar.

12 May I have the appearances. Prosecution, first.

13 MS. UERTZ-RETZLAFF: Yes, thank you, Your Honour. For the

14 Prosecution, from left to right, the case manager Lakshmie Walpita, the

15 trial attorney Sabine Bauer, Alex Whiting, and Hildegard Uertz-Retzlaff.

16 JUDGE ORIE: Thank you, Madam Uertz-Retzlaff. And for the

17 Defence.

18 MR. MUELLER: Your Honours from left to right as well, the case

19 manager, Mr. Danilo Cirkovic, my co-counsel, Mr. Robert Fogelnest, and I,

20 myself, Peter Michael Mueller.

21 JUDGE ORIE: Thank you, Mr. Mueller. Mr. Babic, first of all, can

22 you hear me in a language you understand?

23 THE ACCUSED: [Interpretation] Yes, Your Honour.

24 JUDGE ORIE: Now, I did not yet hear you in a language I

25 understand because I was on the wrong channel. But I read that your

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1 answer was: "Yes, Your Honour." Yes, thank you, Mr. Babic.

2 We are here today to hear an amended joint motion for

3 consideration of a plea agreement between Milan Babic and the Office of

4 the Prosecutor pursuant to Rule 62 ter of the Rules of Procedure and

5 Evidence. This amended motion was filed on the 22nd of January, and it

6 was preceded by another motion filed on the 12th of January which was also

7 a motion to consider a plea agreement between Milan Babic and the Office

8 of the Prosecutor. Therefore, it needs some explanation what has been

9 changed.

10 The previous motion -- in the previous motion, Mr. Babic committed

11 himself to enter a guilty plea, a plea in which he would plead guilty to

12 aiding and abetting a joint criminal enterprise in respect of count 1;

13 that is, a joint criminal enterprise that committed the crime of

14 persecution. Attached to that first motion was a statement of facts. The

15 Chamber has read that statement of facts and has read the plea agreement,

16 and the Chamber at that time had some doubts as to whether the legal

17 qualification attached to these facts was appropriate.

18 Therefore, the question was whether it was proper to qualify these

19 facts as aiding and abetting to the joint criminal enterprise. Since the

20 Chamber was of a provisional view that this legal qualification might be

21 inconsistent with the facts, the Chamber has sent a message through the

22 senior legal officer to inform the parties about this doubt. This has

23 caused the parties to enter a new plea agreement, and it's this new plea

24 agreement that we will consider today.

25 First of all, I'd like to go in brief through the plea agreement.

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1 The accused, so you, Mr. Babic, you committed yourself, you agreed, to

2 plead guilty to count 1 of the indictment alleging persecutions, a crime

3 against humanity, punishable under Article 5(h) and 7(1) of the Statute of

4 the Tribunal. You also agreed, as we read in paragraph 3 of the plea

5 agreement, that you're pleading guilty to count 1 because you're, in fact,

6 guilty as a coperpetrator of the joint criminal enterprise, that is, you

7 acknowledge full responsibility for your actions that are the subject of

8 the indictment.

9 The Prosecution has committed itself according to paragraph 4 of

10 the plea agreement that the Prosecution would move to dismiss without

11 prejudice to either party the remaining charges against Milan Babic as set

12 out in the indictment at the time of the acceptance of a guilty plea by

13 the Trial Chamber. The Prosecution committed itself further to recommend

14 to the Trial Chamber that it impose a term of imprisonment of no more than

15 11 years, and the agreement says that you, Mr. Babic, that you understand

16 that the Trial Chamber is not bound to accept any recommendation and that

17 the Trial Chamber may impose a sentence above or below the recommendation

18 of the Prosecution.

19 It's also stated that the Defence may recommend any sentence it

20 deems appropriate. Further, the Prosecution has committed itself to

21 certain measures of protection and safety.

22 The factual basis of the plea agreement is set out in an annex to

23 it. May I perhaps at this moment ask you, Ms. Uertz-Retzlaff, if the

24 indictment will be amended upon the acceptance of a guilty plea on count

25 1, what exactly would be amended? Would it just be striking out the

Page 31

1 counts 2 up to 5 as we find them on page 6 of the English version of the

2 indictment? Or would there be any other changes in the previous parts of

3 the indictment?

4 MS. UERTZ-RETZLAFF: Your Honour, there would be additional

5 changes in the section "individual criminal responsibility." And also in

6 the -- in count 1, wherever there is a reference to the mode of liability

7 of Mr. Babic, we would make a change. We would actually precisely then

8 only plea coperpetration committing in the form of a coperpetrator in a

9 JCE. So we would drop aiding and abetting. We would drop the other modes

10 of liability that are claimed here in the alternative in the paragraphs 4

11 through to 9.


13 MS. UERTZ-RETZLAFF: To be also even more precise, we think that

14 Mr. Babic's intent reflects more the JCE 3 type of participation, we would

15 also slightly modify paragraph 9 where this issue is addressed.

16 JUDGE ORIE: Yes. So that means that also on the parts of the

17 indictment on which the accused would plead guilty, that amendments still

18 have to be made. I mean, I was in the -- it was the understanding of the

19 Chamber that you would take out the remaining parts, but I do understand

20 that changes are needed as well in respect of the part of the indictment

21 on which the accused committed himself to plead guilty.

22 MS. UERTZ-RETZLAFF: But Your Honours, as those forms of liability

23 are all pleaded in the alternative, the plea agreement actually makes a

24 clear distinction what is the plea about. We do not think that we would

25 need to amend the indictment when the plea agreement is sufficiently clear

Page 32

1 that Mr. Babic pleads to coperpetration, which automatically shows that

2 the other parts of the indictment would not be valid any more. The other

3 modes of liability. If it were -- because it's alternatively charged, we

4 felt that we would not need to make these amendments because of the plea

5 agreement.

6 JUDGE ORIE: Apart from the mode of liability, nothing else would

7 change as far as facts are concerned.

8 MS. UERTZ-RETZLAFF: Yes, Your Honour. It's just the mode of

9 liability.

10 JUDGE ORIE: Yes. Is that the understanding of the Defence as

11 well?

12 MR. MUELLER: Your Honour, this is the understanding of the

13 Defence as well, very clearly. Thank you.

14 JUDGE ORIE: Thank you, Mr. Mueller.

15 Then we come to the next part of the plea agreement, and that is

16 the factual basis. The factual basis of the plea agreement lists first of

17 all the positions that Mr. Babic held during a longer period of time, that

18 he was a member of the League of Communists of Croatia, that he was a

19 delegate to the last congress of the League of Communists. That's all

20 introductory remarks, so that's about I would say his political past, more

21 or less, which is not the most relevant part of the statement of facts,

22 that he held a senior position in the SDS municipal committee in Knin, and

23 that he assumed the position of president of the SDS party from 1992, and

24 that he held that position until 1995. From 1990 to 1994, he held the

25 position of president of the municipal assembly in Knin, and he later was

Page 33

1 the president of the Serbian National Council. From December 1990, he was

2 president of the temporary executive council of the Serbian Autonomous

3 District Krajina, and on the 30th of April, he was elected president of

4 the executive council of the SAO Krajina.

5 Later, on the 29th of May 1991, he became the president of the

6 government of the SAO Krajina. On the 1st of August of that same year, he

7 signed a decision applying the law on defence of the Republic of Serbia to

8 the territory of the SAO Krajina, and this made him de jure commander of

9 all armed forces of the SAO Krajina, including special-purpose units of

10 the Krajina Ministry, and commander of the Territorial Defence forces of

11 the SAO Krajina. I'm saying de jure because it's also stated in the

12 statement of facts that he had not at all times de facto control over

13 these units.

14 When the SAO Krajina proclaimed itself the Republic of Serbian

15 Krajina on the 19th of December 1991, Mr. Babic was appointed president.

16 And you held this position until 159th of February 1992, Mr. Babic.

17 Later, a few years later, in April 1994, Mr. Babic became the minister of

18 foreign affairs of the RSK government, but that is beyond the time scope

19 of the indictment. But just to give some of the background.

20 Just to summarise, and the Defence or the Prosecution would

21 certainly correct me if my summary is not a correct one, Mr. Babic was

22 very much concerned about the position of the Serb Croats in the area I

23 just mentioned, and for that reason he was involved in the formation of

24 the association of Serbian municipalities of Northern Dalmatia and Lika.

25 In 1990, he became president of that association. The purpose of it was

Page 34

1 to introduce Serbian regional autonomy in Croatia.

2 This assembly in July 1990 passed a declaration on the sovereignty

3 and autonomy of the Serbian nations in Croatia. The Serbian National

4 Council was established as the executive body of this assembly. This

5 Serbian National Council met for the first time in July 1990 in Knin. In

6 August 1990, Milan Babic contacted Slobodan Milosevic to complain about

7 the treatment of Serbs in the area around Knin, and Milosevic directed

8 Milan Babic to meet with the president of the SFRY, Mr. Borisav Jovic, and

9 such a meeting took place on the 13th of August 1990.

10 Originally, Milan Babic viewed President Milosevic as the leader

11 and the protector of all the ethnic Serbs in Yugoslavia. Milan Babic

12 sought the assistance of Milosevic in protecting the Serb population in

13 Krajina, and he was assured by Milosevic that they would be protected by

14 the JNA. But the trust which Milan Babic had placed in Milosevic was

15 undermined in March 1991 because it turned out that the objectives of

16 Milosevic were not exactly the same as the ones Mr. Babic had in mind.

17 On from that moment, from August 1990, a parallel structure, as it

18 is called in the indictment, started emerging in the Krajina. It

19 comprised members of the Ministry of the Interior of Serbia and the State

20 Security Service of Serbia, the SDS in Croatia, and policemen in the

21 Serbian municipalities in Croatia which ultimately answered directly and

22 exclusively to Slobodan Milosevic.

23 The statement of facts states that Milan Babic was not a member of

24 this parallel structure and had no ability to control their actions.

25 Milan Babic was aware of this parallel structure and shared its goal of

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Page 36

1 creating a state for all Serbs. And although he had different views on

2 the methods and means to obtain the goal of a Serbian state, he provided

3 support to the parallel structure's aim of achieving a state for all Serbs

4 through conflict and force by fail -- through conflict and force. And he

5 did so by failing to publicly speak out against their methods, and by

6 continuing to exercise the duties of his office in participating in the

7 arming of Serbs in Croatia, creating and staffing political and military

8 structures for a separate Serb entity in Croatia, and obtaining finance

9 for these military structures.

10 As far as my reading was not very clear, I emphasise that the

11 support to the parallel structure's aim of achieving a state for all Serbs

12 through conflict and force, this support was provided by failing to

13 publicly speak out against these methods.

14 In December 1990, under the leadership of Milan Babic, the

15 association of municipalities of Northern Dalmatia and Lika became the

16 Serbian Autonomous Region of Krajina. Milan Babic was the leader of this

17 SAO Krajina, and in April 1991, he was formally appointed president of the

18 executive council. In May 1991, he became the prime minister of the SAO

19 Krajina.

20 Following a nomination by a majority of the temporary executive

21 council of the SAO Krajina, Milan Babic appointed, on the 4th of January

22 1991, Milan Martic to be secretary for internal affairs of the SAO

23 Krajina. Mr. Babic was aware that Mr. Martic was a key figure in the

24 parallel structure. In a later stage, in -- let me first mention that in

25 paragraph 20, the statement of facts says that the government of the SAO

Page 37

1 Krajina never had any effective control over Martic and the police force

2 in Krajina, and that attempts to remove him were unsuccessful due to the

3 support that Mr. Martic received from Mr. Milosevic and other members of

4 the parallel structure. In March 1991, Babic asked Milosevic what was

5 going on. He was told not to worry and to return to Knin. He was then

6 informed about weapons already being bought, and he was later shown that

7 these weapons had arrived.

8 Milan Babic sought the assistance of Mr. Milosevic in getting

9 professional training for the Krajina police. In March 1991, Mr. Babic

10 endorsed, in his capacity as president of the Knin Municipal Assembly, a

11 decision of the Assembly to completely and permanently separate the Knin

12 Municipality from the Republic of Croatia. Then the statement of facts

13 contains some disagreement on what exactly should be done at that moment,

14 whether the SAO Krajina should join the Republic of Serbia, or rather

15 the -- to join the other Yugoslavian entities at that time in existence.

16 In May 1991, the SAO Krajina Assembly appointed Mr. Milan Martic

17 minister of defence of the SAO Krajina, so it was not Mr. Babic who

18 appointed him but it was with his acquiescence. Mr. Babic was aware that

19 the forces under the command of Milan Martic were engaged in attacks of

20 Croat civilians. The Assembly reappointed Mr. Martic as minister of the

21 interior of the SAO Krajina in June 1991. Since no one was immediately

22 appointed to replace Martic as minister of defence, for a period of time

23 Milan Babic assumed that role.

24 In the beginning of July 1991, we are now coming close to the

25 period covered by the indictment, Mr. Babic signed orders as minister of

Page 38

1 defence of the SAO Krajina creating TO formations, Territorial Defence

2 formations, within the SAO Krajina and appointing commanders to these

3 formations. Milan Babic issued an order mobilising all staffs and units

4 of the Territorial Defence in the SAO Krajina and as noted previously, on

5 the 1st of August 1991, that's the first day covered by the indictment,

6 Milan Babic issued a decision applying the law on defence of the Republic

7 of Serbia to the SAO Krajina and making himself the commander of the armed

8 forces of the SAO Krajina, including all special-purpose units of the SAO

9 Krajina and of the Territorial Defence of the SAO Krajina.

10 Mr. Babic performed the duties connected with his position. And

11 on the 8th of August, Milan Babic appointed Mile Martic under pressure

12 from Milosevic to be deputy commander of the SAO Krajina Territorial

13 Defence. Mr. Babic also signed orders creating TO formations, Territorial

14 Defence formations, and appointing Territorial Defence commanders

15 throughout the territory. After a short description of what happened

16 in -- on from September 1991, the statement of facts continue that

17 Milan Babic became aware -- where he was already aware of the plans of the

18 other joint criminal enterprise members regarding the forcible removal of

19 the Bosnian Muslims, but at least that from August 1991 following the

20 attack on Kijevo, Mr. Babic became aware that the JNA and the parallel

21 structure were not protecting the Serbs in Croatia, but were, along with

22 local Serb Territorial Defence forces in the Krajina and with Martic's

23 police, engaged in a war for territory to create the western borders of a

24 new Serbian state. He saw that the creation of a Serbian state would

25 include the forcible, permanent removal of the non-Serb populations from

Page 39

1 Serb-dominated areas of Croatia through a discriminatory campaign of

2 persecution.

3 And this war, to create a Serbian state, was the basis of the

4 joint criminal enterprise described in the indictment whose purpose was

5 the permanent, forcible removal of the majority of Croats and other

6 non-Serb population from approximately one-third of the territory of the

7 Republic of Croatia in order to make it part of the new Serb-dominated

8 state.

9 Mr. Babic became aware that this Serbian state was being created

10 and maintained through the ethnic resettlement of the Croat and other

11 non-Serb population within the Serb-dominated areas of Croatia. And

12 although he had different views on the appropriate methods and means to

13 obtain the goal of a Serbian state, he continued to cooperate and support

14 those who sought to execute this plan with violent means. From August

15 1991, Milan Babic was aware of the intent of the members of the joint

16 criminal enterprise to forcibly resettle the Croatian and other non-Serb

17 populations within the targeted areas.

18 While he favoured a peaceful solution to the crisis, he knowingly

19 and intentionally participated in the common design involving the

20 perpetration of the crimes of persecutions as he, according to the

21 statement of facts, himself put it, he became an ethnic egoist, a person

22 who exclusively wanted to see the interests of people to which he belonged

23 while he neglected the interests and suffering of the other peoples, at

24 the time, the Croatian people.

25 The statement of facts then continues stating persons who

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1 participated in the joint criminal enterprise including

2 Slobodan Milosevic, Milan Martic, Goran Hadzic, Jovica Stanisic,

3 Vojislav Seselj, and Ratko Mladic. This is not a complete enumeration,

4 but I mentioned a few of them. In paragraph 33 of the statement of facts,

5 it's set out in more detail in what ways Mr. Babic participated in this

6 joint criminal enterprise. First, in his capacity as the president of the

7 SNC and later as president and prime minister of the SAO Krajina in the

8 area of RSK, he formulated, he promoted, he participated in and encouraged

9 the development and implementation of the SDS and SAO Krajina RSK

10 government policies which advanced the objective of the joint criminal

11 enterprise.

12 He was instrumental in the establishment, the support, and the

13 maintenance of government bodies ruling the SAO Krajina which, in

14 cooperation with the JNA and the parallel power structure, implemented the

15 objectives of the joint criminal enterprise and participated in the

16 commission of crimes listed in the indictment. As already said before, he

17 was also de jure commander of the Territorial Defence forces. And

18 although he did not endorse Mile Martic's methods and criminality, and

19 also did not share his state of mind with respect to ethnic cleansing,

20 Mr. Babic nevertheless cooperated with Milan Martic which led to Martic's

21 command and control over what is called the Martic police involved in the

22 commission of crimes. When in the summer of 1991 Milan Babic tried to get

23 control over Martic's police, he had no success in doing so.

24 He also participated in the provision of financial, materiel,

25 logistical, and political support necessary for the military takeover of

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1 the territories in the SAO Krajina, which resulted in the subsequent

2 forcible removal of the Croat and other non-Serb population by the

3 Territorial Defence forces, which acted in cooperation with the JNA and

4 with Martic's police.

5 He made ethnically-based inflammatory speeches during public

6 events and in the media that added to the atmosphere of fear and hatred

7 among Serbs living in Croatia, and as such, helped form the opinion of the

8 public that Serbs could only be safe in a state of their own. He

9 requested the assistance of, or he facilitated the participation of JNA

10 forces to establish and maintain the SAO Krajina furthering the objective

11 of the joint criminal enterprise. And he encouraged and assisted in the

12 acquisition of arms and the distribution to Croatian Serbs to further the

13 objective of the joint criminal enterprise.

14 What, then, happened is described in more detail, the campaign of

15 persecutions in the paragraphs 13 to 15 of the indictment. While

16 Mr. Babic was aware that crimes such as imprisonment mentioned in 15(b),

17 deportation and forcible transfer as we find it in paragraph 15(c) of the

18 indictment, and the destruction of property, 15(d), as described in the

19 indictment were being committed in the targeted territories, he did not

20 know the details and the scale of the events that were occurring in the

21 villages throughout the targeted areas at the time.

22 However, he knew from what he observed that the crimes listed in

23 the indictment were the likely outcome of the pursuit of the objective of

24 the joint criminal enterprise and the campaign of persecutions. At the

25 end of 1991 and the beginning of 1992, in relation to the imprisonment, he

Page 42

1 took steps to alleviate the problems by appointing provisional prison

2 staff. With respect to the murders charged in paragraph 15(a) of the

3 indictment, Milan Babic did not know they were occurring at the time, but

4 knew from what he observed that such killings were the likely outcome of

5 the pursuit of the objective of the joint criminal enterprise and the

6 campaign of persecutions.

7 This is, although in some respects summarised and some respects

8 literally, the content of the statement of facts underlying the plea

9 agreement, would any of the parties have any additions to make or

10 corrections to make as to this summary?

11 MS. UERTZ-RETZLAFF: No, Your Honour.

12 MR. MUELLER: No, Your Honours.

13 JUDGE ORIE: Thank you.

14 Having gone through the factual basis of the agreement, I'll just

15 briefly mention a few other elements of the plea agreement. Mr. Babic

16 agrees to cooperate fully with the Office of the Prosecution and has

17 cooperated already. He agrees to testify in other cases and to meet with

18 the Prosecution. He also committed himself to the truthfulness of

19 whatever information and testimony he will provide.

20 Mr. Babic, the plea agreement also says that you understand that

21 the maximum sentence that can be imposed by a Trial Chamber for a guilty

22 plea to the charge of persecutions is a term of imprisonment up to and

23 including the remainder of your life. You also understand that pursuant

24 to Rule 62 ter (B), the Trial Chamber, as already indicated before, is not

25 bound by any agreement between you and the Office of the Prosecution. You

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Page 44

1 also committed yourself to not withdrawing your guilty plea to or appeal

2 your conviction pursuant to this guilty plea. But you reserved your right

3 to appeal against sentence imposed if it comes to that.

4 The plea agreement, I further say, is what will guide the Chamber

5 in imposing sentence, and you have a full understanding of that. You also

6 understand that the parties will provide information to the Chamber in

7 respect of sentencing. You waived, you gave up some rights as well.

8 First of all, the right to plead not guilty, which hardly needs to be said

9 if you committed yourself to plead guilty because you can't do both of

10 them. Of course, it influences your position, that would be different at

11 trial, where you would have the facility to prepare and put forward your

12 defence; that you would be tried without undue delay in your presence;

13 that you would have the right to examine witnesses or have them examined;

14 that, of course, you waived the right not to be compelled to testify

15 against yourself because you, in pleading guilty, you admit your guilt;

16 and that you gave up the right of appeal.

17 Finally, the plea agreement says that you voluntarily entered into

18 this agreement, and therefore if you would plead guilty, that it would be

19 a voluntary plea; that no threats were made to you to induce you to enter

20 this guilty plea; and that no other promises have been given to you apart

21 from the ones mentioned in the plea agreement. You have signed this plea

22 agreement. May I ask you whether you fully understood what your

23 commitments are? It has been confirmed already by your signature and by

24 Defence counsel, but the Chamber would like to hear from yourself as well

25 whether you are fully aware of what you signed to and what the

Page 45

1 consequences may be.

2 THE ACCUSED: [Interpretation] Your Honour, I am aware.

3 JUDGE ORIE: You're also aware of what moved the parties to enter

4 into this new plea agreement and what the difference is between aiding and

5 abetting, and that the Chamber had, as a provisional view, that in the

6 earlier plea agreement there was some inconsistency as to the legal

7 qualification of the facts mentioned in the statement of facts in

8 qualifying this as aiding and abetting to the joint criminal enterprise

9 rather than as participation in a joint criminal enterprise.

10 THE ACCUSED: [Interpretation] Yes.

11 JUDGE ORIE: I take it that this was further explained to you by

12 counsel, and that you understood their explanation.

13 THE ACCUSED: [Interpretation] Yes.

14 JUDGE ORIE: Thank you, Mr. Babic.

15 Having gone in some detail through the plea agreement, I would

16 first like to ask any of the Judges would have any questions in respect of

17 the plea agreement.

18 [Trial Chamber confers]

19 JUDGE ORIE: Yes, Judge El Mahdi has a question for -- I do not

20 know which of the parties. Perhaps both of them.

21 JUDGE EL MAHDI: [Interpretation] Thank you, Mr. President.

22 I have a question for the Prosecution regarding the contents of

23 paragraph 33(d) and paragraph 34. I have to admit that I have a problem

24 in comparing two paragraphs. I will quote paragraph 33(d) for you. [In

25 English] "methods and criminality, nor did he share his state of mind with

Page 46

1 respect to ethnic cleansing, Milan Babic nevertheless cooperated with

2 Milan Martic." [Interpretation] Up until the last sentence which says as

3 follows: [In English] "And the parallel structure without success, and

4 thereafter he continued to cooperate with them."

5 [Interpretation] My question is the following: Does it not

6 indicate a common intent between Mr. Babic and members of the joint

7 criminal enterprise, among other things, and in particular, Mr. Martic?

8 To be precise, I do not see a cooperation without a common intent.

9 MS. UERTZ-RETZLAFF: Your Honour, the Prosecution made a clear

10 distinction between various members of the JCE in this document and

11 throughout the proceedings in this case and other related cases. What we

12 say clearly in paragraph 30 is that Mr. Babic knowingly and intentionally

13 participated in the common design involving the perpetration of the crime

14 of persecution, but the intent of Mr. -- or rather, the methods of

15 Milan Martic were quite different from what Mr. Babic shared and endorsed

16 because it goes further than other members of the JCE went, because

17 Mr. Milan Martic not only wanted to forcibly remove the majority of the

18 Croat population and non-Serb population in those territories; he went

19 much further than that because what he was engaged in was a persecution

20 campaign, including the murders and the really extensive destruction and

21 the extensive mistreatment of detainees and the extensive forcible removal

22 of the population that Mr. Babic did not even know the exact details of,

23 as you can see in paragraph 34.

24 We clearly wanted to make a distinction between the state of mind

25 of Mr. Martic and the state of mind of Mr. Babic.

Page 47

1 JUDGE EL MAHDI: [Interpretation] Very well. But can you further

2 elaborate, what was the exact intent of Mr. Babic? Did he have, yes or

3 no, the intent to commit persecutions?

4 MS. UERTZ-RETZLAFF: Yes, Your Honour, he did. He did from August

5 1991 onwards, when he saw what was going on and he continued to

6 participate with other members of the JCE.

7 JUDGE EL MAHDI: [Interpretation] Thank you.

8 This position, is it shared by the Defence as well?

9 MR. MUELLER: Your Honour, it's shared with the Defence. It can't

10 be expressed any clearer as by the representative of the Prosecutor.

11 JUDGE EL MAHDI: [Interpretation] Thank you, Mr. President.

12 JUDGE ORIE: I would have a few questions as well. May I draw to

13 your attention paragraph 34 of the statement of facts. On the end, on the

14 bottom of page 13, English version, it says: "With respect to the murders

15 charged in paragraph 15(a) of the indictment, Milan Babic did not know

16 they were occurring at the time. But knew from what he observed that such

17 killings were the likely outcome of the pursuit of the objective of the

18 joint criminal enterprise in the campaign of persecutions."

19 I do understand this to be a reference in legally technical terms

20 to what I would call the type 3 joint criminal enterprise where other

21 members of the joint criminal enterprise commit acts even beyond what was

22 the shared design. But I have a more factual question. It reads: "Milan

23 Babic did not know" -- these were the murders -- "they were occurring at

24 the time." How does the Chamber have to understand this? That, for

25 example, if a murder or murders were committed in October 1991, that

Page 48

1 Mr. Babic did not know at that moment, well, let's say on that day, that

2 these murders were committed? Or does it also mean that Mr. Babic would

3 not know about these murders even in early November or mid-November when

4 perhaps other murders were committed which he was not aware of, of them

5 being committed at that time, but knowing that murders had been, for

6 example, committed in October?

7 MR. FOGELNEST: It's the latter, Your Honour.

8 JUDGE ORIE: So he later on -- let me just...

9 So he never heard, he never knew about any of the murders listed

10 in 15(a) which are considerable numbers of people killed in at least not

11 individual incidents. I see in 15(a), I see the killing of 56 people on

12 the 21st of October 1991; other 30 civilians, 24 civilians. I see 7

13 civilians killed in Lipovaca on the 28th of October. I see 10 civilians

14 killed in the hamlet of Vukovici near Poljanak; 29 civilians killed in the

15 village of Saborsko on the 12th of November. On the 18th of November, 38

16 non-Serb civilians killed in Skabrnja. Do I have to understand that

17 Mr. Babic, during the indictment period, got no knowledge of these

18 killings, or that he did not have knowledge of these killings while they

19 were committed but perhaps may have obtained knowledge of them at a later

20 stage, let's say one week after that or a month after that? I try to

21 understand what exactly means "at the time."

22 MS. UERTZ-RETZLAFF: Your Honours, Mr. Babic in his extensive

23 interviews was asked, always mentioned that he learned about the details

24 of these murders as you have referred to years later, not at the time.

25 JUDGE ORIE: Yes, details.

Page 49

1 MS. UERTZ-RETZLAFF: But that they occurred.

2 JUDGE ORIE: That they occurred.


4 JUDGE ORIE: So Mr. Babic was not aware of any killings occurring

5 in the campaign of forcible removal of non-Serb -- non-Serb members of

6 these villages.

7 MS. UERTZ-RETZLAFF: Your Honours, I would make a distinction

8 between killings and murders.


10 MS. UERTZ-RETZLAFF: Of course, when there is a war ongoing and

11 when these attacks occur on the population, he of course knew about people

12 dying in these villages, or in the territory. But he was not aware of the

13 murders.


15 MS. UERTZ-RETZLAFF: As described here.

16 JUDGE ORIE: You mean by killing including civilians that were

17 killed during the attacks, or when you're referring to killings are you

18 only referring to, I would say, combatants or...?

19 MS. UERTZ-RETZLAFF: No, I'm referring to both.

20 JUDGE ORIE: To both. So I properly understand that Mr. Babic was

21 aware of civilians killed during these attacks just as combatants were

22 killed, not knowing, however, on murders, and I do understand that when

23 speaking about murder you refer then to, I would say, these executions,

24 more or less, of numbers of people driven together, and that he only

25 learned about that at a later stage, at least not within the time covered

Page 50

1 by the indictment.

2 MS. UERTZ-RETZLAFF: This is my understanding, Your Honour.

3 JUDGE ORIE: May I seek confirmation from the Defence.

4 MR. MUELLER: Yes, this is also the understanding, Your Honours,

5 as the Defence look at it. What we learned from our information from the

6 client.

7 JUDGE ORIE: Yes. Is there any other source apart from the

8 statement of Mr. Babic given during his interviews of the absence of his

9 knowledge, and is there any source that would support a more general

10 knowledge, for example, by newspapers or television reports on the

11 occurrence of these murders?

12 MS. UERTZ-RETZLAFF: Your Honours, not that we are aware of. Of

13 course, we put this to Mr. Babic, that from the media he would have

14 knowledge in general terms of the matter. But as far as I recall, he said

15 he was not in a position to receive this neutral media at the time.

16 JUDGE ORIE: Has there been any investigation as to whether only

17 the, what you call, neutral media, although I have become aware in this

18 Tribunal that it's not easy to find neutral media, whether any local media

19 paid attention to it, whether any local newspapers paid attention to it?

20 MS. UERTZ-RETZLAFF: Your Honour, what we, of course, found is

21 that the Croatian media reported about these events. At the same time the

22 Serbian media reported the absolute contrary to what the Croats were

23 reporting, and we could not establish whether Mr. Babic received such

24 information. And we also could not establish that Mr. Babic read, for

25 instance, international media at the time.

Page 51












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13 English transcripts.













Page 52

1 JUDGE ORIE: Yes. Is there anything to add to this on the side of

2 the Defence?

3 MR. MUELLER: A little fact: When I remember correctly, Mr. Babic

4 stated in the course of his interviews, and please correct me if I'm

5 wrong, that at that time it was impossible to receive other TV programmes

6 than the Serb ones.

7 JUDGE ORIE: They could even not receive Croatian television?

8 MR. MUELLER: No. That's what I understood. In that area he was

9 living.

10 JUDGE ORIE: Yes. Thank you for your answers in that respect.

11 MR. FOGELNEST: Your Honour, may I offer an additional piece of

12 information to the Court. I would invite the Trial Chamber's attention

13 to, I believe it's de la Brosse's report. The Prosecutor commissioned a

14 report to be done by a professor in Rheims which explains the propaganda

15 campaign that was being conducted by both Belgrade in large part and

16 Croatia. So it was very difficult for anyone to evaluate what the truth

17 was under any circumstances. I think the Court would find that quite

18 enlightening if you've not already had an opportunity to review it.

19 JUDGE ORIE: Yes, would the parties be willing to provide this to

20 the Chamber.

21 MS. UERTZ-RETZLAFF: Yes, Your Honour, we have this report. It

22 was filed in the Milosevic case.

23 JUDGE ORIE: If it could be a joint filing by the parties.

24 I have one other question about the inflammatory speeches. Are

25 texts available of these speeches?

Page 53

1 MS. UERTZ-RETZLAFF: Yes, Your Honour.

2 JUDGE ORIE: Could the Chamber receive copies of two extremes;

3 that is, one in which Mr. Babic used the, I would say, the strongest

4 language, and another one where he was mildest.

5 MS. UERTZ-RETZLAFF: Yes, we will look for it, Your Honours.

6 JUDGE ORIE: Perhaps the parties could agree upon what was the

7 strongest one and what was the mildest one. If you have any doubt, you

8 could also provide one or two others so as to make it for the Chamber to

9 decide what was the strongest one. So we want to -- we would like to see

10 the both extremes of these speeches.

11 MS. UERTZ-RETZLAFF: Yes, Your Honour.

12 JUDGE ORIE: I have no further questions at this moment in

13 relation to the statement of facts, neither do I have any further

14 questions in relation to the plea agreement as a whole.

15 [Trial Chamber confers]

16 JUDGE ORIE: Then we have come to a point where I'd would like to

17 invite the accused to plead. And from the plea agreement, I understand

18 that perhaps we should limit the invitation to plead to count 1. Since

19 there will be changes in the indictment anyhow, I think that we

20 should -- I'd like to hear exactly from the Prosecution and Defence what

21 will be the formulation of the count on which Mr. Babic intends to plead

22 guilty. I mean, I don't think it's of great use to read all the rest of

23 the indictment at this very moment since changes not yet known in detail

24 will be made at a later stage. But I would like at least to know for sure

25 what is the exact formulation of the count.

Page 54

1 As I read it up till this moment in the indictment, let me just

2 take it, it is: "Persecutions on political, racial, and religious

3 grounds, a crime against humanity, punishable under Articles 5(H) and 7(1)

4 of the Statute of the Tribunal." And I do understand that the plea would

5 then be that he pleads guilty to what I just read, adding "by

6 coperpetratorship in a joint criminal enterprise."

7 Is that a proper understanding of what the charge would be?

8 MS. UERTZ-RETZLAFF: Yes, Your Honour, that would be the charge.

9 And actually, we did not now intend to amend the indictment. As I

10 explained, it's pleaded in the alternative. And as long as he makes clear

11 that he is now pleading guilty to coperpetration instead of aiding and

12 abetting and the other forms as specified in paragraph 4 of the indictment

13 and also paragraph 13, we wouldn't actually file an amended indictment.

14 JUDGE ORIE: Okay, yes. You would just ask leave to drop the

15 remaining charges, the remaining four charges.

16 So then I'll read, then, the -- yes, Mr. Mueller.

17 MR. MUELLER: As you may have already anticipated, Your Honour, I

18 agree with that, and I agree to that addition to the count 1 in the sense

19 you have quoted, Your Honour.


21 Mr. Babic, may I invite you to stand. I'll read the first count

22 of the indictment brought against you dated the 6th of November 2003.

23 Persecutions on political, racial, and religious grounds, a crime against

24 humanity, punishable under Articles 5(H), and 7(1) of the Statute of the

25 Tribunal, by participating as a coperpetrator in a joint criminal

Page 55

1 enterprise. How do you plead to this charge?

2 THE ACCUSED: [Interpretation] Guilty.

3 JUDGE ORIE: Thank you, Mr. Babic. Please be seated.

4 The Trial Chamber records the plea of guilty on count 1.

5 Mr. Mueller.

6 MR. MUELLER: Your Honours, I would kindly ask you for permission

7 that my client would make an additional short statement. Would you accept

8 that, please.

9 JUDGE ORIE: Yes, but I would first like to continue the

10 requirements of the Rules of Procedure and Evidence.

11 MR. MUELLER: As you like.

12 JUDGE ORIE: But I do understand that he would like the

13 opportunity at a later stage to make a short statement.

14 MR. MUELLER: Yes, please.

15 JUDGE ORIE: Mr. Babic, the first thing this Chamber will have to

16 do is to satisfy itself that you have made this plea voluntarily and that

17 no threats or no coercion was exercised. That was also the reason why I

18 went with you through the plea agreement in this respect.

19 The second thing this Chamber has to do to satisfy itself that

20 this plea was informed; that's why we put questions to you specifically on

21 the issue which made the party change the earlier agreement into the new

22 one. The Chamber also has to consider -- to satisfy itself that the plea

23 was not equivocal. And finally, the Chamber has to satisfy itself that a

24 sufficient factual basis for the crime and your participation, that it

25 does exist.

Page 56

1 In that respect, I'd like to invite the parties to tell the

2 Chamber whether in respect of these questions, these issues on which the

3 Chamber will have to satisfy itself, whether there's any additional

4 submission you'd like to make or to add any piece of evidence which would

5 make it easier for the Chamber to establish that, or there is sufficient

6 factual basis for the plea. Perhaps first I now ask the Defence.

7 MR. MUELLER: There are not. Thank you.

8 JUDGE ORIE: And for the Prosecution.

9 MS. UERTZ-RETZLAFF: Yes, I would like to add something. In the

10 Milosevic indictment, we named Mr. Babic as a member of the JCE, sharing

11 the intent of the other members of the JCE to forcibly remove the non-Serb

12 population from targeted areas. In the contact with him, Mr. Babic,

13 however, made a distinction between himself and the other members of the

14 JCE, stressing that he was, first, not aware of the criminal objective and

15 the means to achieve this objective of the JCE, but only saw what was

16 going on and from what he saw concluded and understood what the objective

17 was. So that is from August 1991. He's not one of those who actually

18 came up with the plan.

19 And he also made clear that he was not in control of the forces

20 conducting the persecution campaign, and the Prosecution found both of his

21 statements correct because we, of course, have investigated the members of

22 the JCE. We have a huge amount of information, and a huge amount of

23 statements and documents that actually confirm this. So his claim is

24 supported. And what you find in the factual basis is actually what we

25 found on the basis on a huge amount of evidence that is not in front of

Page 57

1 you.

2 JUDGE ORIE: Yes. I do understand that. The Chamber will not

3 take a decision today. The Chamber will consider whatever has been said

4 here, and the Chamber will take a decision as soon as possible whether

5 this plea is accepted or not and all the subsequent decisions that have to

6 be taken, such as instructing the Registrar to set a day for sentence.

7 Having recorded the plea and having heard the request of the

8 Defence to give an opportunity to Mr. Babic to make a short statement...

9 [Trial Chamber confers]

10 JUDGE ORIE: I give an opportunity now to Mr. Babic to make a

11 statement.

12 THE ACCUSED: [Interpretation] Thank you, Your Honour.

13 I come before this Tribunal with a deep sense of shame and

14 remorse. I have allowed myself to take part in the worst kind of

15 persecution of people simply because they were Croats and not Serbs.

16 Innocent people were persecuted; innocent people were evicted forcibly

17 from their houses; and innocent people were killed. Even I learned what

18 had happened, I kept silent. Even worse, I continued in my office, and I

19 became personally responsible for the inhumane treatment of innocent

20 people.

21 The regret that I feel is the pain that I have to live for the

22 rest of my life. These crimes and my participation therein can never be

23 justified. I'm speechless when I have to express the depth of my remorse

24 for what I have done and for the effect that my sins have had on the

25 others. I can only hope that by expressing the truth, by admitting to my

Page 58

1 guilt, and expressing the remorse can serve as an example to those who

2 still mistakenly believe that such inhumane acts can ever be justified.

3 Only truth can give the opportunity for the Serbian people to relieve

4 itself of its collective burden of guilt. Only an admission of guilt on

5 my part makes it possible for me to take responsibility for all the wrongs

6 that I have done.

7 I hope that the remorse that I expressed will make it easier for

8 the others to bear their pain and suffering. I have come to understand

9 that enmity and division can never make it easier for us to live. I have

10 come to understand that our -- the fact that we all belong to the same

11 human race is more important than any differences, and I have come to

12 understand that only through friendship and confidence we can live

13 together in peace and friendship, and thus make it possible for our

14 children to live in a better world.

15 I have asked help from God to make it easier for me to repent, and

16 I am thankful to God for making it possible for me to express my

17 repentance. I ask from my brothers, Croats, to forgive us, their brother

18 Serbs, and I pray for the Serb people to turn to the future and to achieve

19 the kind of compassion that will make it possible to forgive the crimes.

20 And lastly, I place myself at the full disposal of this Tribunal

21 and international justice. Thank you very much.

22 JUDGE ORIE: Thank you, Mr. Babic.

23 Is there anything any of the parties would like to raise at this

24 moment?

25 MS. UERTZ-RETZLAFF: No, Your Honour.

Page 59

1 JUDGE ORIE: I see that Mr. Mueller is nodding no. That's always

2 a bit difficult to the transcript. So I expect he doesn't have anything

3 to raise.

4 MR. MUELLER: That's correct.

5 JUDGE ORIE: I am aware that there was some concern between the

6 parties as far as preparing for a possible sentencing hearing is

7 concerned, especially the time frame for presenting presentencing briefs.

8 Since the Chamber has not yet accepted the plea, I find it inappropriate

9 to discuss this at this very moment in this Court. But I invite the

10 parties to bring to the attention of the senior legal officer whatever is

11 in their minds and to discuss with him the matter, which is a very

12 practical matter.

13 Then we stay adjourned, and the Chamber will give a decision on

14 the acceptance of the plea in due course.

15 --- Whereupon the Further Initial Appearance

16 adjourned at 12.34 p.m.