Page 1559
1 Wednesday, 10 December 2003
2 [Judgement]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 3.01 p.m.
6 JUDGE LIU: Call the case, please, Mr. Court Deputy.
7 THE REGISTRAR: Good afternoon, Your Honours. This is Case Number
8 IT-02-60/2-S, the Prosecutor versus Dragan Obrenovic.
9 JUDGE LIU: Thank you very much.
10 For the sake of the record, could we have the appearances, please.
11 For the Prosecution.
12 MR. McCLOSKEY: Yes, good afternoon, Your Honours, counsel. My
13 name is Peter McCloskey, and with me are Stefan Waespi, Ann Davis, and
14 Janet Stewart.
15 JUDGE LIU: Thank you. For the Defence.
16 MR. WILSON: Good afternoon, Your Honour. David Wilson and
17 Dusan Slijepcevic for Mr. Obrenovic, the accused in the case.
18 JUDGE LIU: Thank you.
19 Mr. Obrenovic, can you hear the proceedings in a language that you
20 understand?
21 THE ACCUSED OBRENOVIC: [Interpretation] Yes, I can, Your Honours.
22 JUDGE LIU: Thank you very much. If there's any problem, please
23 don't hesitate to let us know. Thank you.
24 Good afternoon, ladies and gentlemen. This hearing is for the
25 Trial Chamber to deliver judgement in this case. What follows is a
Page 1560
1 summary of the written judgement and forms no part of it. The written
2 judgement will be made available to the parties and to the public at the
3 end of this hearing.
4 We are here today to sentence Dragan Obrenovic for his
5 participation in the crime of persecutions committed following the fall of
6 Srebrenica enclave in July 1995.
7 Mr. Obrenovic, a 40-year-old Bosnian Serb was indicted by the
8 Office of the Prosecutor on 9th April 2001 for crimes including complicity
9 in genocide, persecutions, and extermination. He was arrested by SFOR on
10 15th April 2001 and transferred to the Tribunal where he has remained in
11 detention at the United Nations Detention Unit.
12 Dragan Obrenovic was jointly charged with three other accused, and
13 his trial commenced on the 14th May 2003. Upon the examination-in-chief
14 of the first Prosecution witness, the Trial Chamber was seized with the
15 joint motion for consideration of a plea agreement between
16 Dragan Obrenovic and the Prosecution. A hearing was held to address the
17 joint motion on 21st May 2003, at the conclusion of which the
18 Trial Chamber accepted Dragan Obrenovic's plea of guilt to one count of
19 crimes against humanity, namely, persecutions, punishable under Article
20 5(H) and Articles 7(1) and 7(3) of the Statute and entered a conviction
21 thereupon.
22 Pursuant to the plea agreement, the Prosecution moved to dismiss
23 the remaining counts, and they were subsequently dismissed. Additionally,
24 under the plea agreement Dragan Obrenovic agreed to testify in other
25 proceedings before the Tribunal, including those trials related to
Page 1561
1 Srebrenica. In October 2003, Mr. Obrenovic testified in the trials of his
2 two former co-accused for seven days.
3 A sentencing hearing was held on 30th October 2003 at which four
4 live witnesses were heard on behalf of the Defence. The testimony of an
5 additional nine witnesses was admitted on behalf of the Defence and five
6 witnesses on behalf of the Prosecution pursuant to Rule 92 bis.
7 A written factual basis for the crime and for Mr. Obrenovic's
8 participation in it was filed with the plea agreement. The factual basis
9 and indictment which Mr. Obrenovic acknowledged to be true forms the
10 factual basis upon which the Trial Chamber will determine sentence. The
11 facts described therein are as follows:
12 The crime of persecutions as charged in count 5 of the indictment
13 was carried out by the following means:
14 The murder of thousands of Bosnian Muslim civilians, including
15 men, women, children, and elderly persons;.
16 The cruel and inhumane treatment of Muslim civilians, including
17 beating of civilians in schools and other detention centres in the Zvornik
18 area on 13th through 16th July 1995;.
19 The terrorisation of Muslim civilians from Srebrenica and Potocari
20 from 13th to 16th July 1995; and.
21 The destruction of personal property and effects of Muslim
22 civilians from Srebrenica who were detained and murdered in the Zvornik
23 area.
24 The detained men were moved out of Potocari for execution.
25 Similarly, the men who had escaped from Srebrenica in "the column" were
Page 1562
1 captured and detained, pending execution. Along the route between
2 Bratunac and Zvornik, the names previously used to mark settlements and
3 communities or places of learning, culture, and work or geographic
4 features are now used to identify killings fields: Jadar River,
5 Cerska Valley, Kravica Warehouse, Petkovci school, Pilica Cultural Centre,
6 and the villages of Tisca and Orahovac. At one location,
7 Branjevo Military Farm, approximately 1.200 Bosnian Muslim men who had
8 been captured from the column were executed by automatic weapon fire. In
9 total, over 7.000 men were murdered.
10 The Trial Chamber has considered the principles and purpose of
11 punishment in light of the mandate of the Tribunal. It finds that
12 principles of sentencing derived from national systems, namely deterrence,
13 retribution and rehabilitation are applicable on the international level;
14 the application and purpose for each may, however, be different when
15 applied on the international level.
16 The Trial Chamber recalls that a sentence is based on individual
17 criminal responsibility. No individual should be punished for the
18 criminal liability of others, and no case should be viewed as representing
19 the final accounting for a particular crime, especially crimes such as
20 those committed following the fall of Srebrenica for which numerous people
21 may be held criminally liable. Each person must only be called to answer
22 and to be punished for his particular share of the criminal activity.
23 Turning to sentencing factors, the Trial Chamber first considered
24 the gravity of the offence, bearing in mind that this requires taking
25 account of the particular circumstances of the case, as well as the form
Page 1563
1 and degree of participation of Mr. Obrenovic in the crime.
2 The Trial Chamber finds that the crime of persecution is
3 inherently serious. Its unique character is derived from a requirement of
4 specific discriminatory intent, on account of which the crime is regarded
5 as a particularly serious offence. In this case, the gravity of the
6 offence is demonstrated by the persecutory acts for which Dragan Obrenovic
7 has been convicted.
8 The crimes committed following the fall of Srebrenica are,
9 unfortunately, well known. The mass murder or forced transfer of the
10 Muslim population from this part of Eastern Bosnia in slightly over one
11 week was committed with a level of brutality and depravity not seen
12 previously in the conflict of the former Yugoslavia which had already cost
13 so many lives.
14 Dragan Obrenovic was deputy commander and chief of staff of
15 Zvornik Brigade - the brigade responsible for the municipality in which
16 the vast majority of the executions took place. During the two days when
17 many of these executions took place, he was the acting commander of the
18 Zvornik Brigade. Dragan Obrenovic, as he has admitted, took actions which
19 furthered the killing operation: He released seven his men to"assist"
20 with the prisoners - prisoners that he knew were brought to Zvornik to be
21 shot. He approved the release of two military operators from the line,
22 knowing that their task was the burial of the executed prisoners. For
23 these actions, Dragan Obrenovic bears criminal responsibility.
24 The Trial Chamber has heard that Dragan Obrenovic was a man of
25 exceptional character and a soldier - an officer - whose subordinates
Page 1564
1 "would have followed him down the barrel of a cannon." Although there
2 were few direct actions that Dragan Obrenovic took to further the murder
3 operations, his inaction during these critical, devastating days itself
4 had an impact on those working with, and under, him. Dragan Obrenovic
5 spent most of these fateful days in the battlefield, but he was aware of
6 the larger murder operation taking place. Through his failure to prevent
7 his subordinates from participating in the detention, murder, and burial
8 of Bosnian Muslim men, Dragan Obrenovic bears criminal responsibility.
9 Through his failure to punish his subordinates after they committed crimes
10 which he knew or had reason to know about, Dragan Obrenovic bears criminal
11 responsibility.
12 Recognising the various forms of criminal liability for which
13 Dragan Obrenovic has accepted responsibility, the Trial Chamber finds
14 Dragan Obrenovic's liability stems primarily, though not exclusively, from
15 his responsibility as a commander.
16 The Prosecution submits that three aggravating factors in this
17 case should be considered by the Trial Chamber: First, the position of
18 leadership of Dragan Obrenovic; second, the role of Dragan Obrenovic as
19 deputy commander; and thirdly, the vulnerability of the victims and the
20 depravity of the crimes.
21 The Trial Chamber finds Dragan Obrenovic was in a position of
22 authority as acting commander and deputy commander of Zvornik Brigade. As
23 Dragan Obrenovic's criminal liability arises in large measures from his
24 responsibility as commander, pursuant to Article 7(3) of the Statute, the
25 Trial Chamber finds it would be inappropriate to use the same conduct to
Page 1565
1 establish both liability and aggravating circumstances in this case.
2 The Trial Chamber found that depravity of the crimes is subsumed
3 in the overall gravity of the offence.
4 The Trial Chamber takes particular note of the vulnerability of
5 the victims. They were all in a position of helplessness and were subject
6 to cruel treatment at the hands of their captors. In this situation, the
7 Trial Chamber found this to be an aggravating factor in the commission of
8 the crimes.
9 The Prosecution submits that the mitigating circumstances are the
10 guilty plea, acceptance of responsibility, remorse, cooperation with the
11 Office of the Prosecutor, and previous good character. In addition to the
12 factors listed by the Prosecution, the Defence submits that the fostering
13 of reconciliation and Dragan Obrenovic's offer to voluntarily surrender
14 should be considered mitigating factors in this case.
15 The Trial Chamber finds Dragan Obrenovic's guilty plea and
16 acceptance of responsibility is a significant factor in mitigation of the
17 sentence due to his contribution to establishing the truth, promoting
18 reconciliation, and because of Dragan Obrenovic's unreserved and
19 unqualified acceptance of his individual criminal responsibility for his
20 role in the crime of persecutions. The Trial Chamber also considers
21 Dragan Obrenovic's guilty plea as a mitigating factor because it spares
22 witnesses from being required to come and testify about painful and
23 traumatic events. This is particularly appreciated in the case of
24 Srebrenica where there are numerous indictments brought by the
25 Prosecution, and the future trials will likely require the presence of
Page 1566
1 these witnesses.
2 Finally, the Trial Chamber takes note of the fact that other
3 accused have been given credit for pleading guilty before the start of the
4 trial or at an early stage of the trial because of the savings of
5 Tribunal's resources. The Trial Chamber appreciates this saving of
6 Tribunal resources. The Trial Chamber finds, however, that in cases of
7 this magnitude where the Tribunal has been entrusted by the Security
8 Council - and by extension, the international community - to bring justice
9 to the former Yugoslavia through criminal proceedings that are fair, in
10 accordance with international human rights standards, and accord due
11 regard for the rights of the accused and the interests of victims, the
12 saving of resources cannot be given undue consideration or importance.
13 The Trial Chamber has carefully considered Dragan Obrenovic's
14 expression of remorse and his apologies to the victims for his
15 participation in, what he described as "the horror of Srebrenica."
16 Through his statements and his actions, the Trial Chamber finds
17 Dragan Obrenovic is genuinely remorseful for his role in the crimes for
18 which he has been convicted, and seeks to atone for his criminal conduct.
19 Therefore, the Trial Chamber considers Dragan Obrenovic's remorse to be a
20 substantial mitigating factor in this case.
21 In considering cooperation with the Prosecution, the Trial Chamber
22 notes that the Prosecution acknowledges full cooperation from
23 Dragan Obrenovic. The Trial Chamber finds that Dragan Obrenovic provided
24 truthful testimonies and detailed informations in the Blagojevic trial
25 regarding his knowledge of the events related to Srebrenica and the VRS
Page 1567
1 military structure. The Trial Chamber agrees with the Prosecution that
2 Dragan Obrenovic answered each question as clearly and precisely as he
3 could, regardless of whether it was asked by the Prosecution, Defence
4 counsel, or the Trial Chamber. The Trial Chamber further notes that he
5 testified in Krstic Appeal Proceedings, and he has further agreed to
6 testify in other proceedings. In addition, he assisted the Prosecution by
7 providing it with numerous documents relevant for the Blagojevic case and
8 investigations in other cases. The Trial Chamber also finds that
9 Dragan Obrenovic cooperated with the Prosecution during the investigation
10 phase when he permitted the Prosecution to conduct a search of the
11 Zvornik Brigade property. The Trial Chamber finds substantial cooperation
12 with the Prosecution in this case to be a significant mitigating
13 circumstance.
14 Based on the evidence presented, the Trial Chamber found that
15 prior to the war, Dragan Obrenovic was a highly respected member of the
16 community who did not discriminate against anybody. Furthermore, the
17 Trial Chamber found based on the testimony, that even during the war
18 Dragan Obrenovic provided help on an ongoing basis to several Muslims whom
19 he previously had not known. The Trial Chamber finds this to be an
20 important mitigating factor.
21 The Trial Chamber recognises these mitigating factors to be steps
22 taken towards rehabilitation.
23 Additionally, the Trial Chamber has established the following
24 mitigating circumstances: Offer of voluntary surrender; comportment in
25 the UNDU; and personal circumstances of the accused.
Page 1568
1 The criminal responsibility borne by Dragan Obrenovic for the
2 widespread or systematic crimes committed following the fall of Srebrenica
3 must reflect his individual criminal conduct -- his actions and his
4 omissions. Without diminishing in any way the criminal conducts of
5 Dragan Obrenovic, the Trial Chamber recalls that he is not alone in
6 bearing criminal responsibility for the massive crimes committed against
7 the Muslim population. He did not conceive of the murder operation. His
8 punishment must, therefore, reflect only his role and participation in the
9 crime of persecutions. Others, who should one day face judgement before
10 this Tribunal, will accordingly be judged and sentenced for their roles.
11 The Trial Chamber has found there exists in this case numerous
12 mitigating circumstances upon which the Trial Chamber has placed
13 substantial weight. Through his acceptance of responsibility and his
14 guilt, his sincere remorse, and his substantial cooperation with the
15 Prosecution, and his character, Dragan Obrenovic has mitigated his
16 sentence.
17 The Trial Chamber stresses that the allocation of significant
18 weight to the mitigating circumstances in this case should not be
19 interpreted as dismissal of the gravity of the offence for which
20 Dragan Obrenovic has been convicted. The Trial Chamber has considered the
21 scale of the crimes in which Dragan Obrenovic participated. The
22 Trial Chamber has further considered the impact of these crimes on the
23 victims and their survivors. Both are enormous.
24 As the Trial Chamber has stressed to both parties and to
25 Dragan Obrenovic, it is not bound by their recommendations relating to the
Page 1569
1 sentence. The Trial Chamber has carefully considered the submissions, and
2 the recommended sentence, by each party.
3 Mr. Obrenovic, please rise.
4 [The accused stands up]
5 JUDGE LIU: Having given due weight to factors set out, the
6 Trial Chamber hereby sentences you to a period of 17 years imprisonment.
7 You are entitled to 969 days credit for the time you have served in
8 detention as of the date of this sentencing judgement.
9 You may sit down, please.
10 [The accused sits down]
11 The hearing is adjourned.
12 --- Whereupon the hearing adjourned at 3.30 p.m.
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