1 Thursday, 31 July 2003

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 3.02 p.m.

5 [Judgement]

6 JUDGE SCHOMBURG: Please be seated.

7 First of all, good afternoon, everybody. May I have the

8 appearances, please, for the Prosecution.

9 MR. KOUMJIAN: Good afternoon, Your Honours. Joanne Korner, Ann

10 Sutherland, Michael McVicker, Nicholas Koumjian, and Ruth Karper for the

11 Prosecution.

12 JUDGE SCHOMBURG: Thank you. And for the Defence.

13 MR. LUKIC: Good afternoon, Your Honours. John Ostojic, Danilo

14 Cirkovic, and Branko Lukic for the Defence.

15 JUDGE SCHOMBURG: Thank you. May I ask you, Dr. Stakic, can you

16 follow the proceedings in a language you understand?

17 THE ACCUSED: [Interpretation] Good afternoon, Your Honours. Yes,

18 I can. I can follow the proceedings in a language I understand.

19 JUDGE SCHOMBURG: Thank you. You may be seated.

20 Before I start with the oral presentation of this judgement, I

21 want on behalf of the entire Bench all those having assisted us since the

22 start of this trial to extend our thanks. Without the help of

23 translators, interpreters, secretaries, in short, all actors behind the

24 scenes, always ready to give us a helping hand, we would not have reached

25 the point where we are today. Especially when working with a deluge of

1 documents, transcripts, video and audio tapes, we learned how important

2 the work of the case managers, Ruth Karper for the Prosecution, Danilo

3 Cirkovic for the Defence, and coordinating all this on behalf of the

4 Registry, Charlotte Dahuron as the then acting Court deputy. Our

5 heartfelt thanks go to the team of legal officers working especially the

6 last month extremely hard to prepare with us a judgement as accurate as

7 possible. This is Courtney Musser, Nina Jorgensen, Lucia Catani, Philip

8 Dygeus, and temporarily Coralie Colson.

9 Let me now turn to the summary of the Trial Chamber's judgement in

10 the case, The Prosecutor versus Milomir Stakic. I have to stress that

11 this summary forms no part of the final judgement which will be delivered

12 immediately. The only authoritative count of the Trial Chamber's findings

13 and of its reasons for those findings is to be found in the written

14 judgement.

15 The Trial Chamber wishes to emphasise that this is not a case

16 against "the Serbs" collectively or an individual because of his Serb

17 ethnicity, but rather a case in which a Trial Chamber, based on charges

18 set by the Prosecution in the fourth amended indictment, had to decide

19 whether Dr. Stakic is to be held individually criminally responsible for

20 the alleged crimes. This judgement, especially since its pronounced under

21 Chapter VII of the Charter, should never be misunderstood as directed

22 against one of the warring parties or ethnicities at the relevant time.

23 The Trial Chamber is aware that crimes of a similar gravity were committed

24 in the municipality of Prijedor and beyond by and against members of all

25 three main ethnicities.

1 Following the principle of equality before the law, this Tribunal

2 and domestic courts will therefore continue to prosecute and try these

3 other perpetrators as well. A judgement should not serve as a pretext for

4 a reopening of old wounds. Its purpose is to present reliable, factual

5 findings and thereby contribute to reconciliation and bringing people back

6 to a state of peaceful coexistence.

7 The trial of the accused on the allegations set out in the

8 indictment began on 16th of April, 2002, and concluded on 15th April 2003

9 after 150 days of hearings. Dr. Stakic faced charge of genocide, or

10 alternatively complicity in genocide, murder as violation of the laws or

11 customs of war, and the following crimes against humanity: Murder,

12 extermination, persecutions, deportation, and other inhumane acts

13 (forcible transfer) in relation to events that took place in the

14 municipality of Prijedor between April and September 1992.

15 Let me start with this: Despite the comprehensive pattern of

16 atrocities against non-Serbs in Prijedor in 1992 which has been proved

17 beyond reasonable doubt, and without distracting from its gravity, the

18 Trial Chamber has not found this to be a case of genocide. Rather, it is

19 a serious case of persecutions, extermination, and deportation.

20 The Trial Chamber heard 37 live Prosecution witnesses and admitted

21 19 witness statements pursuant to Rule 92 bis. Prosecution called three

22 expert witnesses. The Chamber itself called six witnesses proprio motu,

23 and ordered the Prosecution to appoint two experts. The Trial Chamber

24 heard 38 live Defence witnesses and admitted seven Rule 92 bis statements

25 and one Rule 94 bis report. The Defence called two live expert witnesses

1 and introduced the report of an expert. A total of 1.448 exhibits were

2 admitted into evidence; 150 days of hearings are reflected on 15.337 pages

3 of transcript.

4 The factual findings can be summarised relatively briefly

5 particularly in light of the fact that previous judgements of this

6 Tribunal have already described the overall situation in Prijedor and more

7 specifically the Omarska, Keraterm, and Trnopolje camps. What follows is

8 an overview of the scope of all the crimes committed at the relevant time;

9 that is, from 30 April 1992 to 30 September 1992.

10 On the 7th of January, 1992, the Serbian members of the Prijedor

11 Municipal Assembly and the presidents of the local municipal boards of the

12 Serbian Democratic Party, SDS, proclaimed a parallel assembly of the

13 Serbian people of the municipality of Prijedor. Dr. Milomir Stakic, a

14 physician, was elected president of this assembly. Ten days later, in a

15 decision signed by Dr. Stakic, the assembly endorsed "Joining the Serbian

16 territories of the Municipality of Prijedor to the Autonomous Region of

17 Bosnian Krajina." By the end of April 1992, a number of clandestine

18 Serbian police stations had been created in the municipality, and more

19 than 1.500 armed men were ready to take power.

20 During the night, from 29 to 30 April 1992, the SDS-led forcible

21 takeover of power took place. Legitimate central authorities were

22 replaced by SDS or SDS-loyal personnel. First and foremost, Dr. Stakic

23 replaced the freely elected president of the Municipal Assembly, Professor

24 Cehajic.

25 The takeover in the municipality of Prijedor was an illegal coup

1 d'etat, which had been planned and coordinated for months and which had as

2 its final goal the creation of a pure Serbian municipality. The plans

3 were never hidden and were implemented through coordinated action by the

4 police, army, and politicians. One of the main figures was Dr. Stakic,

5 who was by then playing the leading role in the political life of the

6 municipality.

7 Shortly after the takeover, the municipal peoples National Defence

8 Council started meeting in a new composition presided over by Dr. Stakic

9 in his capacity as president of the post-takeover Municipal Assembly.

10 On 20 May, 1992, the Municipal Assembly was replaced by the Crisis

11 Staff of Prijedor, later known as War Presidency, whose membership was

12 almost identical to that of the People's Defence Council, including

13 Dr. Stakic as its president. The Crisis Staff met very frequently in the

14 period immediately after the takeover and adopted numerous decisions,

15 orders, and other enactments.

16 Civilian life in Prijedor was transformed in a myriad ways after

17 the takeover. There was a marked increase in the military presence in the

18 town, and the propaganda war against non-Serbs was launched. According to

19 a decision of the Crisis Staff, armed attacks were launched against the

20 non-Serb civilian population throughout the municipality. The creation of

21 an atmosphere of fear in Prijedor culminated in the agreement amongst

22 members of the Prijedor Crisis Staff to establish the Omarska, Keraterm,

23 and Trnopolje camps.

24 The Trial Chamber has found that killings occurred frequently in

25 the camps. There can be no reasonable doubt that a number of massacres

1 were committed inter alia in Room 3 of the Keraterm camp on or about 24

2 July, 1992. In late July 1992, over a hundred people were killed in the

3 Omarska camp, and approximately 120 people were taken on buses from

4 Omarska on 5 August 1992 and killed. On 21 August 1992, approximately 200

5 people on a deportation convoy escorted by members of the Prijedor

6 Intervention Squad were killed on Mount Vlasic by members of this platoon.

7 [For a better understanding, I stop for a moment and interrupt the summary

8 of this judgement for the following reason. I have to recall, and we have

9 to recall that this massacre at Mount Vlasic is identical with the one the

10 accused in another case, Darko Mrdja pleaded guilty to the 24th of July,

11 2003, as a direct perpetrator having committed murder as a violation of

12 the laws or customs of war and inhumane acts at that time.] And coming

13 back to the summary of the judgement of the case against Dr. Stakic, it is

14 to be emphasised that many more were killed during the attacks by the

15 Bosnian Serb army on predominantly Bosnian Muslim villages and towns

16 throughout the municipality of Prijedor, Kozarac, Hambarine, Biscani,

17 Ljubija, to name a few, and several massacres of Muslims took place

18 additionally.

19 The Trial Chamber has found that calculated with the principle in

20 dubio pro in mind, more than 1.500 killings occurred and has been able to

21 identify by name 486 names of victims.

22 Rapes and sexual assaults were committed in the camps, and the

23 thousands of persons detained were subjected to inhuman and degrading

24 treatment, including routine beatings and torture. Detainees lived in

25 unhygienic conditions and were given little more than a subsistence diet.

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1 Mostly Muslims who had lived their whole lives in the municipality

2 of Prijedor were expelled from their homes and deported in huge numbers

3 often on convoys organised and supervised by the Serb authorities from

4 Prijedor. The Trial Chamber heard evidence from many witnesses who were

5 forced to flee the territory of the municipality of Prijedor in 1992,

6 mostly to Travnik or Croatia to escape Serb-controlled territory. The

7 exodus of the mainly non-Serb population from Prijedor started as early as

8 1991, but accelerated considerably in the run-up to the takeover and

9 reached its peak in the months after the takeover. More than 20.000

10 persons, calculated conservatively, 20.000 persons, became victims of this

11 campaign of deportation. Most people travelled on one of the daily

12 convoys of buses and trucks leaving the territory.

13 The houses of non-Serbs were marked for destruction and in many

14 cases were actually destroyed along with mosques and Catholic churches.

15 The Trial Chamber does not wish to reduce the victims to mere numbers and

16 statistics. The victims were human beings, men and women with different

17 backgrounds, histories, and personalities. As it is impossible to

18 reconstruct all their fates, the Chamber has selected three of these

19 individuals to highlight the core issues in this case. The fate of the

20 late Professor Muhamed Cehajic and the fates of witnesses X and Nermin

21 Karagic.

22 As regards now the central question of this case, whether

23 Dr. Stakic is to be held responsible for the crimes described in the

24 factual findings, the Trial Chamber has answered this question in the

25 affirmative.

1 The Trial Chamber finds that the mode of liability described as

2 "co-perpetratorship" a form of "committing" under Article 7(1) of the

3 Statute best characterises Dr. Stakic's participation in crimes committed

4 in Prijedor in 1992. It has not been found necessary to resort to the

5 judicial formula of "joint criminal enterprise." For co-perpetration, it

6 is essential to prove the existence of an agreement or silent consent to

7 reach a common goal by coordinated cooperation with joint control over the

8 criminal conduct. The co-perpetrator must have acted in the awareness of

9 the substantial likelihood that crimes would occur and must have been

10 aware that his role was essential for the achievement of the common goal.

11 The Trial Chamber is satisfied that between January 1991 and

12 September 1992, Dr. Stakic held the following superior positions and was a

13 leading political figure in the municipality of Prijedor in 1992.

14 From the 4th of January, 1991, he served as the elected

15 vice-president of the Municipal Assembly of Prijedor under Professor

16 Muhamed Cehajic, the legally elected president.

17 On the 11 September 1991, the SDS in Prijedor established a

18 municipal board, and Dr. Stakic served as vice-president of the board.

19 As of the 7th of January 1992, he was elected president of the

20 self-proclaimed assembly of the Serbian people of the Municipality of

21 Prijedor.

22 After the takeover, on the 30th April 1992, Dr. Stakic rose to

23 prominence within the municipality acting as president of the Municipal

24 Assembly after the forced removal of Professor Muhamed Cehajic from that

25 post. Simultaneously, he assumed the position of president of the

1 Prijedor municipal People's Defence Council.

2 As of May 1992, he served as president of the Prijedor municipal

3 Crisis Staff, later renamed "War Presidency."

4 As of 24 July, 1992, until the end of the period covered by the

5 indictment, he again exercised the functions of president of the Municipal

6 Assembly of Prijedor.

7 Dr. Stakic's associates included the authorities of the

8 self-proclaimed assembly of the Serbian people of the Municipality of

9 Prijedor, the SDS, the Prijedor Crisis Staff, the Territorial Defence, and

10 the police and military. In particular, Dr. Stakic acted together with

11 the chief of police, Simo Drljaca, prominent members of the military such

12 as Colonel Vladimir Arsic and Major Zeljaja, the president of the

13 executive committee of the Prijedor Municipality, Dr. Milan Kovacevic, and

14 the commander both of the municipal Territorial Defence staff and

15 Trnopolje camp, Slobodan Kuruzovic.

16 With the establishment of the self-proclaimed assembly of the

17 Serbian people on the 7th of January, 1992, the common goal of creating a

18 Serbian municipality took tangible form.

19 The common goal on the Prijedor level found its vibrant expression

20 in Radovan Karadzic's six strategic goals of the Bosnian Serb leadership

21 in Bosnia and Herzegovina which included as the first goal the separation

22 of Serbs from "the other two national communities." Interestingly enough,

23 by the time Karadzic had set out these objectives, preparations were

24 already underway for the fulfillment of the first goal in the municipality

25 of Prijedor.

1 On the 29th of April, 1992, at a meeting convened by Dr. Stakic,

2 the final agreement was made amongst those willing to participate, in

3 particular, the police and armed Serbs, that power should be taken over in

4 Prijedor Municipality that night. This was the trigger and the first in a

5 series of agreements necessary to achieve the common goal. No formal

6 agreement was necessary, and all participants were aware of where the

7 decision to take over power would lead.

8 The takeover on the 30th of April, 1992, was the combination of

9 months of planning by the SDS which, at that time, was already cooperating

10 with the police to boost security forces in the municipality in

11 anticipation of the coup d'etat. After the takeover, Dr. Stakic and other

12 SDS leaders assumed the central positions in the municipal government, and

13 Muslims and Croat politicians who had been legally elected were forcibly

14 removed. Other leading SDS members were installed in strategic positions

15 throughout the municipality. Simo Drljaca became chief of police.

16 After the takeover, the Serb leadership sought to achieve a state

17 of readiness for war in the municipality of Prijedor. The Prijedor Crisis

18 Staff started to impose restrictions on the non-Serb residents of

19 Prijedor. The creation of a coercive environment for the non-Serb

20 residents of the Prijedor Municipality is consistent with the

21 co-perpetrators' objective of consolidating Serb power in the municipality

22 by forcing non-Serbs to flee or to be deported, thereby forcibly changing

23 fundamentally the ethnic balance in the municipality.

24 A propaganda campaign helped to polarise the Prijedor population

25 along ethnic lines and created an atmosphere of fear. Dr. Stakic made a

1 number of media appearances during summer 1992 instilling interethnic

2 suspicion. The media became a propaganda tool of the Serb authorities.

3 In a speech reported in "Kozarski Vjesnik," a newspaper serving as a voice

4 of the Serb authorities at that time, Dr. Stakic proclaimed: "Now we have

5 reached a state in which the Serbs alone are drawing the borders of their

6 new state." This is also demonstrated by the fact that the Official

7 Gazette of Prijedor Municipality of 20 May, 1992, started explicitly with

8 a "year 1" edition, apparently from the point of view of the new

9 self-proclaimed authorities, a new Serbian age had dawned in the

10 municipality of Prijedor.

11 The order to set up the Omarska camp on the 31st of May, 1992,

12 signed by Simo Drljaca, was issued "in accordance with the decision of the

13 Crisis Staff" presided over by Dr. Stakic. As Dr. Stakic stated in a

14 television interview, the camps of Omarska, Keraterm, and Trnopolje were

15 "a necessity in the given moment." He confirmed that these camps "Were

16 formed according to a decision of civilian authorities in Prijedor."

17 Throughout the period immediately after the takeover, Dr. Stakic,

18 in cooperation with the chief of police, Simo Drljaca, and the most senior

19 military figure in Prijedor, Colonel Vladimir Arsic, worked to strengthen

20 and unify the military forces under Serb control. The disproportionate

21 armed response to the minor incidents at Hambarine and Kozarac in May 1992

22 was directed against the civilian non-Serb population. It heralded the

23 first in a series of measures taken by the Crisis Staff in cooperation

24 with the military and the police to rid the municipality of non-Serbs.

25 Simo Drljaca represented the police forces in the Crisis Staff.

1 Dr. Stakic himself suggested that the Crisis Staff should also have a

2 military representative, but this proposal was rejected. Nevertheless,

3 either Arsic or Zeljaja attended meetings of the Prijedor Crisis Staff and

4 National Defence Council on behalf of the military. Just after the

5 takeover, military uniforms were ordered by the civilian authorities for

6 the use of civilian leaders, including Dr. Stakic, who wore a military

7 uniform and carried a weapon.

8 Dr. Stakic's influence over the military and the police was

9 strongly contested by the Defence. The Trial Chamber, however, has found

10 that there was strong cooperation between Dr. Stakic and both police and

11 military. Through his positions as president of both the Crisis Staff and

12 the National Defence Council, Dr. Stakic facilitated coordination by the

13 police and military with each other and with the civilian authorities.

14 The various bodies headed by Dr. Stakic also provided logistical and

15 financial assistance to the military. The National Defence Council

16 required competent municipal organs to secure priority communications and

17 essential supplies such as food and oil and to report to the Prijedor

18 executive committee about these matters. Documentary evidence proves that

19 the Crisis Staff set up the logistics base at Cirkin Polje which provided

20 meals for police at checkpoints and guards at the camps, fuel for

21 transporting detainees to and between camps, and equipment for the police

22 and army.

23 Furthermore, the Crisis Staff ordered the Prijedor Public Security

24 Station and the Prijedor regional command, that is police and the army,

25 "to form a joint intervention platoon" or "squad."

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1 A document dated 4 August, 1992, from Simo Drljaca chief of the

2 Prijedor Public Security Station credits the "synchonised activities of

3 the Serbian army and police" with having in large part destroyed any

4 paramilitary formations. Simo Drljaca as chief of the public security

5 station is reported to have said in a closed session of the Municipal

6 Assembly that due to the efficient army and police action, Muslim

7 paramilitary formations had been smashed and the situation was stable in

8 this respect.

9 There was coordinated cooperation between the Crisis Staff, later

10 War Presidency, and members of the police and army in operating the camps.

11 The Crisis Staff participated through its oversight of security in the

12 camps, taking decisions on the continuing detention of Prijedor citizens,

13 providing transport and the necessary fuel for the transport of prisoners

14 between the various camps and from the camps to territory not controlled

15 by Serbs as well as coordinating the provision of the limited foods for

16 detainees.

17 With the arrival of the first detainees at Omarska, permanent

18 guard posts were established and anti-personnel land mines were set up

19 around the camp. The military encircled the camp compound while the

20 police were located "inside where the detainees were." An order from the

21 Prijedor Public Security Station confirms that the Omarska camp compound

22 was enclosed, and that the mine field lay around the perimeter of the

23 camp.

24 The common goal could not be achieved without joint control over

25 the final outcome, and this element of interdependency characterises the

1 criminal conduct. No participant could have achieved the common goal on

2 his own. However, each participant could individually have frustrated the

3 plan by refusing to play his part or by reporting crimes. If, for

4 example, the political authorities led by Dr. Stakic had not participated,

5 it would have frustrated the common plan. Dr. Stakic was aware of this.

6 Otherwise, it would not have been necessary to oust Professor Cehajic.

7 The atmosphere of impunity for all those involved in the coup d'etat led

8 by Dr. Stakic and the general lawlessness which prevailed in Prijedor

9 ensured that the common goal could be pursued.

10 To quote one witness, in Prijedor, "There was neither de facto nor

11 de jure authority or individual who be above Dr. Stakic." In "Kozarski

12 Vjesnik" on 13 January, 1993, Dr. Stakic was described as the top official

13 in the municipality. Dr. Stakic was identified as the "mayor" of

14 Prijedor, a title that usually denotes a position of great political

15 authority, in contemporaneous articles and reports and he even introduced

16 himself this way. However the titles themselves are immaterial as it is

17 clear that Dr. Stakic had a special responsibility for all events which

18 took place in the Prijedor municipality and also the power to change their

19 course.

20 In relation to all offences, the Trial Chamber is convinced that

21 Dr. Stakic and his co-perpetrators acted in the awareness that crimes

22 would occur as a direct consequence of their pursuit of the common goal.

23 The co-perpetrators consented to the removal of Muslims from Prijedor by

24 whatever means necessary, and either accepted the foreseeable consequence

25 that crimes would occur or actively participated in their commission. The

1 fact that Dr. Stakic felt it necessary to replace Professor Cehajic and

2 others who clearly would have not have participated in the implementation

3 of the common goal demonstrates Dr. Stakic's awareness that without his

4 acts and the acts of the other co-perpetrators, the ultimate goal of the

5 creation of the Serbian municipality and eventually a Serbian state could

6 not be realised.

7 In an interview in his position as president of the Crisis Staff

8 on 24 May, 1992, Dr. Stakic stated that the whole territory of the

9 municipality of Prijedor had been under Serb control since "the liberation

10 of Kozarac" and that "cleansing," (in his own language ciscenje) or

11 "mopping up" was still ongoing in Kozarac "because those remaining are

12 the most extreme and the professionals." It is the Trial Chamber's firm

13 opinion that Dr. Stakic was fully aware that these so-called extreme

14 citizens were none other than innocent Muslim and Croat civilians, some of

15 them were armed but who could not be considered a professional armed

16 force. In fact, the evidence shows that even though Dr. Stakic spoke of

17 fighting only the Muslim extremists who were carrying out armed operations

18 against Serb forces, he acted as if the Muslim population was composed

19 entirely of extremists. The Trial Chamber is satisfied that Dr. Stakic

20 did not differentiate between the civilian Muslim and Croat populations

21 and the extremists whom he wanted more than anything to defeat.

22 The Trial Chamber is convinced that Dr. Stakic knew that his role

23 and authority as a leading politician in Prijedor was essential for the

24 accomplishment of the common goal. He was aware that he could frustrate

25 the object of achieving a Serbian Muslim municipality by using his powers

1 to hold account those responsible for crimes by protecting or assisting

2 non-Serbs or by stepping down from his superior positions.

3 Before turning to the concrete legal findings, the Trial Chamber

4 wishes to make some general observations on the applicable law to

5 facilitate an understanding of this judgement by the parties and also by

6 the peoples of the states of the former Yugoslavia.

7 The Trial Chamber is restricted by the indictment and cannot make

8 a legal assessment of the facts that does not conform to the indictment as

9 it would be possible in other legal systems where Judges themselves assess

10 the entire legal characterisation of acts and are not bound by the charges

11 in an indictment.

12 The Trial Chamber does not wish to go into all the details of its

13 legal assessment except to point out the following:

14 Following a careful analysis of the facts and the state of mind of

15 the actors, the Trial Chamber was unable to infer the necessary dolus

16 specialis for genocide, this dolus specialis or specific intent, to

17 destroy in whole or in part a group as such, being the core element of the

18 crime. Thus, the Trial Chamber could not come to the conclusion that

19 Dr. Stakic or other actors had the necessary specific intent to

20 characterise his conduct as genocide or complicity in genocide. The

21 primary aim was to displace the non-Serb population in order to achieve

22 the vision of a pure Serbian state. This intent to displace a population

23 cannot be equated with an intent to destroy it as such.

24 However, the Trial Chamber wishes to stress that it has reached

25 the conclusion that a genocidal intent on a higher level has not been

1 proved beyond reasonable doubt, only on the basis of the evidence in this

2 concrete case. This does not mean that another Trial Chamber in another

3 case basing its findings on different evidence, could not come to a

4 different conclusion. It must be emphasised especially in this context in

5 order to allow a better understanding of this result in the former

6 Yugoslavia that in principle, it is the parties who tender the evidence.

7 The Judges do not play an active investigatory role under this Tribunal's

8 Rules of Procedure and Evidence.

9 It is in general not necessary in the interests of justice and in

10 providing an exhaustive description of individual criminal responsibility

11 to make findings under Article 7(3) of the Statute if the Chamber is

12 already stated beyond reasonable doubt that both responsible under 7(1)

13 and the superior positions of the accused have been established. The

14 accused's superior positions constitute only an aggravating factor in

15 sentencing, the seriousness of which depends on the concrete superior

16 status of the accused over his subordinates.

17 The Trial Chamber has used the definition of deportation that

18 covers different forms of forcible transfer. It has concluded that the

19 vast majority of the forms of forcible transfer that the Prosecution

20 argues should be covered by Article 5(i) of the Statute under the heading

21 "other inhumane acts" fall under the definition of deportation in Article

22 5(d). These include forcible transfers not only across internationally

23 recognised borders, but also across de facto borders dividing areas

24 controlled by different belligerent parties. The Trial Chamber is not

25 convinced that other examples provided by the Prosecution such as the

1 removal of individuals to detention facilities fulfill the requirement of

2 reaching the same level of gravity as other crimes listed under Article 5.

3 Moreover, these examples do not necessitate a conviction based

4 cumulatively on Article 5(i), and such a conviction might amount to an

5 infringement of the principle nullum crimen sine lege certa (no crime

6 without precise law).

7 The Trial Chamber has found that the crimes of persecutions and

8 extermination constitute the core element of the criminal conduct of

9 Dr. Stakic as alleged in the indictment. The Trial Chamber has set out in

10 the judgement the legal preconditions for the crime of persecution and

11 elaborated on the discriminatory intent required for this crime. The

12 Trial Chamber is convinced that there was a persecutorial campaign based

13 on the intent to discriminate against all non-Serbs or those who did not

14 share the plan to consolidate Serbian control and domination of the

15 municipality of Prijedor. Dr. Stakic was one of the main actors in the

16 persecutorial campaign, and the Trial Chamber is satisfied that he had the

17 requisite intent to discriminate against non-Serbs and those affiliated or

18 sympathising with them because of their political and religious

19 affiliations.

20 In determining now the appropriate sentence, the Trial Chamber has

21 taken into account the International Tribunal's Statute and Rules, the

22 general sentencing practice in the former Yugoslavia, the individual

23 circumstances of the case, aggravating and mitigating factors, and the

24 personality of the accused. The sentence must reflect the gravity of the

25 criminal conduct of the accused, and this has required a consideration of

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1 the underlying crimes as well as the form and degree of the participation

2 of the accused.

3 The Trial Chamber wishes to emphasise that the individual guilt of

4 an accused limits the range of the sentence. Other goals and functions of

5 a sentence can influence only the range within the limits defined by the

6 individual guilt.

7 The Trial Chamber recalls that the International Tribunal was set

8 up to counteract impunity and to ensure a fair trial for the alleged

9 perpetrators of crimes falling within its jurisdiction. The Tribunal was

10 established under Chapter VII of the United Nations Charter on the basis

11 of the understanding that the search for truth is an inalienable

12 prerequisite for peace. This Tribunal is mandated to determine the

13 appropriate penalty often in respect of persons who never expected to

14 stand trial. While one goal of sentencing is the implementation of the

15 principle of equality before the law, another is to prevent persons in

16 similar situations in the future from committing crimes.

17 When Dr. Stakic acted, he almost certainly never believed he would

18 one day stand trial, be convicted, and sentenced. In cases such as this

19 one, dealing with the head of a municipality, general deterrence becomes

20 substantially relevant. In the context of combating serious international

21 crimes, deterrence refers to the attempt to integrate or reintegrate those

22 persons who believed themselves to be beyond the reach of international

23 criminal law. Such persons must be warned that they must respect the

24 fundamental, global norms of substantive criminal law, or face not only

25 Prosecution, but also sanctions imposed by international tribunals. In

1 modern criminal law, this approach to a general deterrence is more

2 accurately described as deterrence aiming at integrating potential

3 perpetrators into a peaceful global society, compelling them to obey the

4 rule of law.

5 Apart from the gravity of the crimes, the superior positions held

6 by the accused constitute a serious aggravating factor, as does his proven

7 responsibility for also planning and ordering the crime of deportation.

8 As mitigating factors, the Trial Chamber has considered Dr. Stakic's

9 consent on 1 October, 2002, that a new judge be appointed which allowed

10 proceedings to continue, his proper behaviour toward witnesses, and his

11 personal situation.

12 Article 24 of the Statute reflects reasonable and humane policy of

13 the United Nations aiming at the global abolition of the death penalty and

14 fixes life imprisonment as the maximum sanction to be imposed. The Trial

15 Chamber wishes to stress in this context that on both the international

16 and national levels, the imposition of the maximum sanction is not

17 restricted to the most serious imaginable criminal conduct.

18 Finally, the Trial Chamber wishes to emphasise that Rules 123 to

19 125 of the Rules and the Practice Direction on Pardon, Commutation of

20 Sentence and early release remains unaffected and have priority over the

21 disposition that follows.

22 THE USHER: All rise.

23 JUDGE SCHOMBURG: We, Judges of the International Tribunal for the

24 prosecution of persons responsible for serious violations of international

25 humanitarian law committed in the territory of the former Yugoslavia since

1 1991 established by United Nations Security Council Resolution 827 of 25

2 May, 1993, elected by the General Assembly and mandated to hear this case

3 against Dr. Milomir Stakic and find the appropriate sentence hereby

4 decide:

5 The accused, Dr. Milomir Stakic, is not guilty of count 1,

6 genocide. Count 2, complicity in genocide, count 8, other inhumane acts,

7 that's forcible transfer, a crime against humanity.

8 The accused, Dr. Milomir Stakic, is guilty of count 4,

9 extermination, a crime against humanity; murder, a violation of the laws

10 or customs of war; count 6, persecutions, crimes against humanity

11 incorporating count 3, murder, a crime against humanity and count 7,

12 deportation, a crime against humanity.

13 Dr. Milomir Stakic is hereby sentenced to life imprisonment. The

14 then competent Court shall review this sentence, and if appropriate,

15 suspend the execution of the remainder of the punishment of imprisonment

16 for life and grant early release if necessary on probation if, one, 20

17 years have been served calculated in accordance with Rule 101(C) from the

18 date of Dr. Stakic's deprivation of liberty, for the purposes of these

19 proceedings, this being the date of review.

20 Two, in reaching a decision to suspend sentence, the following

21 considerations inter alia shall be taken into account: The importance of

22 the legal interest threatened in case of recidivism, the conduct of the

23 convicted person while serving his sentence, the personality of the

24 convicted person, his previous history, and the circumstances of his acts,

25 the living conditions of the convicted person, and the affects which can

1 be expected as a result of this suspension.

2 Three, Dr. Stakic's consent to the suspension of this sentence is

3 required. The competent court may determine the term of probation, if

4 any. In case of early release pursuant to Rule 101(C) of the rules,

5 Dr. Milomir Stakic is entitled to credit for two years, four months, and

6 eight days as of the date of this judgement calculated from the day of his

7 deprivation of liberty for the purposes of these proceedings. Pursuant to

8 103(C) of the rules, Dr. Milomir Stakic shall remain in custody of the

9 International Tribunal pending the finalisation of arrangements for his

10 transfer to the state where he shall serve his sentence.

11 You may be seated.

12 May I now ask Madam Registrar to present copies of the judgement

13 in English to both parties, and to the accused, and for the Defence, a

14 translation of the summary just read out including the disposition in a

15 language he understands.

16 Hereby, I declare this trial closed.

17 --- Whereupon the hearing adjourned

18 at 3.58 p.m.

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