The Prosecutor v. Dragan Obrenovic – Case No. IT-02-60/2-S

“Sentencing Judgement”

10 December 2003
Trial Chamber I, Section A (Judges Liu [Presiding], Vassylenko and Argibay)

Procedural Background

· The Initial Indictment¹ charged Dragan Obrenovic with five counts: Complicity in Genocide punishable under Article 4(3)( e) of the Statute; Extermination as a crime against humanity punishable under Article 5(b) of the Statute; Murder as a crime against humanity punishable under Article 5(a) of the Statute; Murder as a violation of the laws or customs of war punishable under Article 3 of the Statute; and Persecutions on political, racial and religious grounds as a crime against humanity punishable under Article 5(h) of the Statute. For each count, Dragan Obrenovic was charged on the basis of individual criminal responsibility (Article 7(1) of the Statute) and superior criminal responsibility (Article 7(3) of the Statute).²

· On 15 April 2001, Dragan Obrenovic was apprehended by the Stabilisation Force in Bosnia and Herzegovina (“SFOR”) and transferred to the Tribunal. At his initial appearance, on 18 April 2001, he entered a plea of not guilty to all charges in the Initial Indictment.³

· On 11 September 2001, the Prosecution filed a motion seeking that Dragan Obrenovic, Vidoje Blagojevic and Dragan Jokic be jointly tried.⁴ The motion was granted.⁵ On 22 January 2002, the Prosecution filed a joint indictment, under case number IT-02-53.⁶ Under the Joint Indictment, the three Accused were charged as members of a joint criminal enterprise, the common purpose of which was “to forcibly transfer the women and children from the Srebrenica enclave to Kladanj, on 12 July and 13 July 1995; and to capture, detain, summarily execute by firing squad and bury thousands of Bosnian Muslim men and boys aged 16 to 60 from Srebrenica enclave from 12 July 1995 until and about 19 July 1995”.⁷ Under the Joint Indictment, Dragan Obrenovic was charged with the same charges as in the Initial Indictment.

· On 17 May 2002, Trial Chamber II granted the Prosecution’s Motion to join Momir Nikolic with the Joint Indictment.⁸ The Prosecution filed a joint amended indictment under case number IT-02-60 on 27 May 2002.⁹ Under the Indictment, the charges and the modes of responsibility alleged against Dragan Obrenovic were identical to those set forth in the previous Joint Indictment.

· The trial of the four Accused was scheduled to commence on 6 May 2003.¹⁰ Following the guilty plea of Momir Nikolic, the start of trial was delayed until 14 May 2003.¹¹

· On 20 May 2003, upon completion of the examination-in-chief of the Prosecution’s first witness, the Prosecution and Dragan Obrenovic filed a “Joint Motion for Consideration of a Plea Agreement between Dragan Obrenovic and the Office of the Prosecutor”. On 21 May 2003, during a public hearing on the Joint Motion, the Trial Chamber accepted the plea agreement and the guilty plea, and entered a finding of guilt against Dragan Obrenovic for Count 5 of the Indictment, namely persecutions as a crime against humanity.¹²

· On 22 May 2003, pursuant to the terms of the Plea Agreement and in accordance with its undertaking to the Trial Chamber at the Plea Hearing¹³, the Prosecution moved for the Trial Chamber to dismiss all remaining counts of the Indictment. On 23 May 2003, the Trial Chamber granted the motion and further ordered that the proceedings against Dragan Obrenovic be separated from those against Blagojevic and Jokic.¹⁴ The same day the Registrar assigned case number IT-02-60/2 to the proceedings against Dragan Obrenovic.¹⁵

The Sentencing Hearing for Dragan Obrenovic was held on 30 October 2003.

Sentencing Judgement

The Trial Chamber sentenced Dragan Obrenovic to 17 years imprisonment.¹⁶

Plea Agreement

The Trial Chamber examined Dragan Obrenovic’s Plea Agreement. It noted that Dragan Obrenovic agreed to plead guilty to Count 5 of the Indictment (persecutions as a crime against humanity), agreed to co-operate with the Office of the Prosecutor, recognised that by pleading guilty he had waived certain procedural rights, and acknowledged that the plea was made of his own free will. The Trial Chamber noted that the Prosecution agreed to recommend a sentence of 15 to 20 years and would dismiss the remaining charges against Dragan Obrenovic.

At the conclusion of the Plea Hearing, the Trial Chamber found that there was a sufficient factual basis in the Plea Agreement and that the requirements of Rule 62 bis for a finding of guilt with respect to Count 5 of the Indictment were met. The Trial Chamber therefore found Dragan Obrenovic guilty of Count 5 of the Indictment and entered a conviction.¹⁷

The Trial Chamber determined that Dragan Obrenovic’s guilty plea pursuant to the Plea Agreement was in the interests of justice and therefore accepted it. The Trial Chamber’s determination was “based on the following factors, inter alia: (a) the acceptance of responsibility of Dragan Obrenovic for his criminal conduct; (b) the establishment of an undisputed record about the crimes committed following the fall of Srebrenica which may contribute to reconciliation; (c) Dragan Obrenovic’s agreement to co-operate with the Prosecution and provide testimony in the cases against other accused indicted for crimes related to Srebrenica, particularly in light of his position as an officer in the VRS¹⁸; (d) the fact that certain witnesses would not need to come to testify at the Tribunal; and (e) the fact that the Prosecution did not withdraw any factual allegations related to the criminal conduct for which Dragan Obrenovic accepted individual criminal responsibility. The Trial Chamber further considered that an accused has the right to decide what plea to enter to the charges against him”.¹⁹

Factual Basis

According to the Indictment, “[i]n the several days following this attack on Srebrenica, VRS forces captured, detained, summarily executed, and buried over 7000 Bosnian Muslim men and boys from the Srebrenica enclave, and forcibly transferred the Bosnian Muslim women and children of Srebrenica out of the enclave”.²⁰

The crime of persecutions for which Dragan Obrenovic was charged in Count 5 of the Indictment was carried out through the following means: (a) the murder of thousands of Bosnian Muslim civilians, including men, women, children and elderly persons; (b) the cruel and inhuman treatment of Bosnian Muslim civilians, including beatings of civilians in schools and other detention centres in the Zvornik area on 13 through to 16 July 1995; (c) the terrorisation of Bosnian Muslim civilians from Srebrenica and Potocari from 13 to 16 July 1995; and (d) the destruction of personal property and effects of Bosnian Muslim civilians from Srebrenica who were detained and murdered in the Zvornik area.²¹

Sentencing Factors

Gravity of the offence

Particular circumstances of the commission of persecutions in this case

The Trial Chamber recalled the nature of persecutions as a crime against humanity, the crime to which Dragan Obrenovic pled guilty.²² It found that the crimes committed following the fall of Srebrenica were of “an enormous magnitude and scale” and that their gravity was “unquestionable”.²³

Form and degree of participation of Dragan Obrenovic in the crime of persecutions

As the crimes in the Zvornik Brigade area of responsibility started on 13 July 1995, the Trial Chamber found this date to be the appropriate starting point for assessing Dragan Obrenovic’s responsibility as the Acting Commander.²⁴ It noted that on the return of his commander Vinko Pandurevic, Dragan Obrenovic was still in a position of responsibility as Deputy Commander and Chief of Staff.²⁵

The Trial Chamber examined a number of actions attributable personally to Dragan Obrenovic and events which he had knowledge of. It found that “Dragan Obrenovic not only knew that members of the Zvornik Brigade took part in the organisation of the killings and the burials of the executed Muslim prisoners but also approved the release of members of the Zvornik Brigade to participate in the implementation of this plan”.²⁶ It found that even though Dragan Obrenovic did not devise the plan, he participated in the implementation of the plan to kill the Muslim prisoners by releasing his men from their actual duties and ordering them to follow the orders that came from above.²⁷ The Trial Chamber considered this action to be aiding and abetting. It characterised Dragan Obrenovic’s participation in the joint criminal enterprise as “co-perpetratorship”.²⁸

The Trial Chamber noted Dragan Obrenovic’s “particular position and place in the overall chain of command when assessing how these actions reflect[ed] on his individual criminal responsibility”.²⁹ The Trial Chamber held that Dragan Obrenovic’s “liability stem[med] primarily from his responsibilities as a commander”.³⁰ It took into account the fact that he remained “passive when he should have prevented his subordinates from committing the criminal acts or punished then for such crimes afterwards”.³¹

Given the gravity of the crime, the Trial Chamber found a sentence in the range of 20 years to 40 years imprisonment to be appropriate.

Aggravating circumstances

Position of leadership and role of Dragan Obrenovic

The Trial Chamber examined the principle of command responsibility. It held that when “commanders, through their own actions or inactions, fail in the duty, which stems from their position, training and leadership skills, to set an example for their troops that would promote the principles underlying the laws and customs of war and thereby – either tacitly or implicitly – promote or encourage the commission of crimes, this may be seen as an aggravating circumstance”.³²

The Trial Chamber recalled that a position of leadership may be an aggravating factor.³³ It noted that Dragan Obrenovic was in a position of authority as Acting Commander and Deputy Commander of the Zvornik Brigade. However, as Dragan Obrenovic’s criminal responsibility under Article 7 (3) of the Statute stemmed from his position as a commander it would be inappropriate to use the same conduct to both establish liability and an aggravating factor.³⁴

Vulnerability of the victims and depravity of the crimes

The Trial Chamber found the depravity of the crimes to be subsumed in the overall gravity of the offence. It considered the vulnerability of the victims as an aggravating factor as “they were in a position of helplessness and were subject to cruel treatment at the hands of their captors”.³⁵

Mitigating circumstances

Guilty plea and acceptance of responsibility

The Trial Chamber noted that Dragan Obrenovic “in accepting his responsibility and his guilt ha[d] never sought to offer excuses or shift responsibility for his actions”.³⁶ It found Dragan Obrenovic’s guilty plea to be a “significant factor in mitigation of the sentence due to its contribution to establishing the truth, promoting reconciliation and because of Dragan Obrenovic’s unreserved acceptance of his individual criminal responsibility for his role in the crime of persecutions”.³⁷ It attached weight to the fact that Dragan Obrenovic’s guilty plea will spare witnesses from having to give testimony at trial.³⁸ The parties submitted that Dragan Obrenovic’s guilty plea had saved Tribunal resources. The Trial Chamber recalled its finding in the Momir Nikolic Sentencing Jugdement³⁹ and accordingly attached little weight to this aspect of the guilty plea.⁴⁰

Remorse

The Trial Chamber carefully considered his “expression of remorse and his apologies to the victims for his participation in what he described as the ‘horror of Srebrenica’ ”.⁴¹ It held that through his statements and actions he had sought “to atone for his criminal conduct” and found that Dragan Obrenovic had demonstrated genuine remorse.⁴² As a result the Trial Chamber considered Dragan Obrenovic’s remorse to be a “substantial mitigating factor”.⁴³

Co-operation with the Prosecution

The Trial Chamber noted that Dragan Obrenovic had co-operated with the Prosecution by giving oral evidence at the Blagojevic and Jokic Trial⁴⁴ and by providing documents relevant to the this Trial and other investigations and assisting during the investigation phase when he permitted the Prosecution to conduct a search of the Zvornik Brigade’s property.⁴⁵ Consequently, it found this substantial co-operation with the Prosecution to be a “significant mitigating factor”.⁴⁶

Character of the accused, no opportunity for voluntary surrender, comportment in the United Nations Detention Unit (“UNDU”) and personal circumstances

The Trial Chamber found Dragan Obrenovic’s character prior to and during the war to be an “important mitigating factor”.⁴⁷ It found that Dragan Obrenovic did not discriminate prior to the war and that he provided help to several Muslims during the war.⁴⁸

As the Trial Chamber would have had to speculate in order to determine whether Dragan Obrenovic would have voluntarily surrendered if given the opportunity, it attached little weight to this factor.⁴⁹ Additionally, it did not accord significant weight to his comportment in the UNDU.⁵⁰ The Trial Chamber found that “family circumstances, while recognised as a mitigating circumstance, cannot be given any significant weight in a case of this gravity”.⁵¹

Steps towards Rehabilitation⁵²

The Trial Chamber recalled that one of the recognised purposes of punishment is rehabilitation.⁵³ It stated that “if an accused has demonstrated that he has already taken affirmative steps on the path towards rehabilitation, and that the process of rehabilitation is likely to continue in the future, this should be recognised in mitigation of sentence”.⁵⁴

The Trial Chamber found that Dragan Obrenovic had begun his process of rehabilitation. In 1998, for example, he permitted the “Office of the Prosecutor to search the premises of the Zvornik Brigade knowing the search was likely to yield information that could incriminate him”.⁵⁵ Additionally, Dragan Obrenovic had “continued the process toward rehabilitation since his arrest by taking full responsibility for the crimes he ha[d] committed and by co-operating fully with the Office of the Prosecutor”.⁵⁶ The Trial Chamber found that by his “expressed words and more importantly his deeds” that it was likely that upon his eventual release from his term of imprisonment Dragan Obrenovic will “continue the path that he ha[d] begun by continuing to take positive acts to atone for his responsibility in the crimes at Srebrenica”.⁵⁷ The Trial Chamber therefore found that Dragan Obrenovic’s “affirmative steps toward rehabilitation were a factor in mitigation of sentence”.⁵⁸

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1 . Dragan Obrenovic, IT-01-43-I, Indictment (“Initial Indictment”), 16 March 2001.
2. Initial Indictment, paras. 12-22.
3. Dragan Obrenovic, IT-01-43-I, Initial Appearance, 18 April 2001, Transcripts (“T.”) 2-3.
4. Dragan Obrenovic, IT-01-43-PT, Vidoje Blagojevic, IT-98-33/1-PT, and Dragan Jokic, IT-01-44-PT, Prosecution’s Motion for Joinder, 11 September 2001.
5. Dragan Obrenovic, IT-01-43-PT, Vidoje Blagojevic, IT-98-33/1-PT, and Dragan Jokic, IT-01-44-PT, Status Conference, 15 January 2002, T.59.
6. Vidoje Blagojevic, Dragan Obrenovic and Dragan Jokic, IT-02-53-I, Joinder Indictment (“Joint Indictment”), 22 January 2002.
7. Ibid., para. 15.
8. Momir Nikolic, IT-02-56-I, Decision on Prosecution’s Motion for Joinder, 17 May 2002.
9. Vidoje Blagojevic, Dragan Obrenovic, Dragan Jokic and Momir Nikolic, IT-02-60-PT (“Blagojevic et al.”), Amended Joinder Indictment (“Indictment”), 27 May 2002.
10. Blagojevic et al., Scheduling Order, 6 December 2002.
11. The Sentencing Judgement in the Momir Nikolic case was rendered by this same Trial Chamber on 2 December 2003. It gives a detailed account of the procedure for guilty pleas. See Momir Nikolic, IT-02-60/1-S, Sentencing Judgement (“Momir Nikolic Sentencing Judgement”), 2 December 2003, present issue of the Judicial Supplement.
12. Vidoje Blagojevic, Dragan Obrenovic and Dragan Jokic, IT-02-60-T, 21 May 2003, Plea Hearing (“Plea Hearing”), T. 560.
13. Plea Hearing, T. 552.
14. Vidoje Blagojevic, Dragan Obrenovic and Dragan Jokic, IT-02-60-T, Separation of Proceedings and Scheduling Order, 23 May 2003.
15. Obrenovic, IT-02-60/2, Decision, 23 May 2003.
16. Obrenovic is entitled, pursuant to Rule 101(C), to the credit for the time served since his arrest (969 days).
17. Plea Hearing, T. 560.
18. Forces of the Army of the Serbian Republic of Bosnia and Herzegovina/Republika Srpska (footnote added).
19. Sentencing Judgement, para. 20.
20. Indictment, para. 26
21. Sentencing Judgement, para. 29.
22. Ibid., paras. 64, 65.
23. Ibid., para. 77.
24. Ibid., para. 81.
25. Ibid.
26. Ibid., para. 85.
27. Ibid.
28. On co-perpretratorship, see Krnojelac, IT-97-25-A, Appeal Judgement, 17 September 2003, para. 29, Judicial Supplement No. 45.
29. Sentencing Judgement, para. 86.
30. Ibid., para. 88.
31. Ibid.
32. Ibid., para. 100.
33. Kordic, IT-95-14/2-T, Judgement, 26 February 2001, paras. 853-855, Judicial Supplement No. 23.
34. Sentencing Judgement, para. 99. This issue was also discussed in Galic, IT-98-29-T, Judgement and Opinion (“Galic Judgement”), 5 December 2003, Separate and Dissenting Opinion of Judge Nieto-Navia, para. 121, present issue of the Judicial Supplement.
35. Ibid., para. 102.
36. Ibid., para. 115.
37. Ibid., para. 116.
38. Ibid., para. 117.
39. Momir Nikolic Sentencing Judgement, para. 67. See the summary under “Guilty plea and acceptance of responsibility”.
40. Sentencing Judgement, para. 118.
41. Ibid., para. 121. See Dragan Obrenovic IT-02-60/2-S, Prosecution’s Supplemental Submissions Regarding the Sentencing of Dragan Obrenovic, 23 October 2003, para. 3.
42. Ibid, para. 121.
43. Ibid.
44. Ibid., para. 122. Blagojevic and Jokic, IT-02-60-T.
45. Ibid., para. 128.
46. Ibid., para. 129.
47. Ibid., para. 134.
48. Ibid.
49. Ibid., para. 136.
50. Ibid., para. 138.
51. Ibid., para. 140 and footnote 249. See Momir Nikolic Sentencing Judgement, para. 170.
52. Trial Chambers in previous judgements have examined personal circumstances while assessing the possibility of rehabilitation. See Blaskic, IT-95-14-T, Trial Judgement, 3 March 2000, paras. 779-780, in which the Trial Chamber examined personal mitigating factors and stated that “the character traits are not so much examined in order to understand the reasons for the crime but more to assess the possibility of rehabilitating the accused” (Judicial Supplement No. 13). See also Kvocka et al., IT-98-30/1-T, Trial Judgement, 2 November 2001, para. 704, in which the Trial Chamber took into account “factors pertaining to the individual circumstances of the convicted person” in order to determine any reasons for the accused’s criminal conduct and in order to assess more accurately the “possibility of rehabilitating those convicted by the Tribunal” (Judicial Supplement No. 29). More recently, in the Galic Judgement, the Trial Chamber stated that “by taking into consideration factors pertaining to the individual circumstances of the convicted person, the Trial Chamber is able to more accurately assess the possibility of rehabilitation” (para. 759).
53. Momir Nikolic Sentencing Judgement, para. 93.
54. Sentencing Judgement, para. 143.
55. Ibid., para. 144.
56. Ibid., para. 145.
57. Ibid., para. 146 (emphasis by the Trial Chamber).
58. Ibid.