Babic May Get Off Lightly

In an unusual sentencing hearing, the prosecution and the defence concurred on the appropriate prison term for the former Croatian Serb leader of the self-declared Republic of Serbian Krajina.

Babic, 48, pled guilty in January to participating in a joint criminal enterprise the aim of which was to permanently remove all non-Serb residents of the Krajina. By the end of the campaign, almost the entire non-Serb population of the region had been forcibly removed or killed.

At the end of the two-day hearing, April 1-2, lead prosecutor Hildegard Uertz-Retzlaff told the tribunal that Babic's case was atypical, and explained that recommending a sentence was difficult for her personally.

She said the prosecution believed an appropriate term of imprisonment would be less than 11 years, and explained that two important considerations related to Babic's sentence had to be weighed up.

On the one hand, she said, the ethnic cleansing Babic took part in was "precisely the reason why the Security Council established this tribunal". But at the same time, she continued, the number and scope of mitigating factors involved were unmatched in any of the court's other cases.

These mitigating factors include Babic's limited role in the violence, cooperation with the prosecution, voluntary appearance before the tribunal, guilty plea, expression of remorse, contributions to reconciliation and previous good character.

Babic had no actual control over the military forces that committed crimes, the prosecution argued. Rather than being an architect of the plan, he was just a "disposable tool" of the plan's leaders - including Slobodan Milosevic, Milan Martic, Ratko Mladic, and others - they said.

What's more, Babic independently initiated contact with the prosecutor's office after he learned that he was named in the Milosevic indictment. He did so despite the "great danger to his family and his own personal safety", the prosecution explained in its sentencing brief.

Babic agreed to an extensive interview with the prosecutor's office soon thereafter. Already at this point, he took responsibility for the acts he had committed. "At the time Babic provided this statement, he did so without any promises of reward or benefit," Uertz-Retzlaff noted in her remarks at the sentencing hearing.

In November 2002, Babic testified in the case against Milosevic.

The two men had once been allies and Babic had turned to Milosevic for help in protecting the Serbs of Krajina. The defendant initially agreed to this request, but later endorsed the Yugoslav army's withdrawal of the area. The two men later came to distrust - and even despise - one another.

Still, Babic testified against Milosevic despite the fact that he was incriminating himself in the process.

A year after giving this testimony, the prosecution issued an indictment against Babic. Again, he voluntarily appeared. "He was the first indictee in the tribunal's history for whom the issuance of an arrest warrant proved unnecessary," the prosecution explained in its sentencing brief.

Babic's guilty plea "differed significantly from other guilty pleas accepted by this tribunal" the prosecution said, as almost every other accused has only admitted guilt "when the scope of the evidence against them was known to them".

The prosecution also highlighted Babic's acceptance of responsibility and his statements of repentance, citing his confession that "I come before this tribunal with a deep sense of shame and remorse".

Finally, in its brief and statements, the prosecution made clear that Babic, a former dentist, was a family man, who had interacted with people of all nationalities before the war. He became involved in politics to help improve the economic situation of the Knin region, they said, not because of nationalist motives.

But the prosecution claimed that Babic had been influenced by the Belgrade-controlled media, which had insinuated that if Croatia seceded from Yugoslavia, Croatian Serbs would be subject to genocide at the hands of the country's Croat majority.

Babic was not simply a passive recipient of this nationalist propaganda, however. He contributed to it as well, promoting radical rhetoric and warning of such genocide against Serb residents in Croatia.

At the sentencing hearing, the parties jointly called Mladen Loncar, a Croatian psychiatrist, as an expert witness. Locnar explained that wartime trauma still has an effect on victims, with many suffering from post-traumatic stress, anxiety, mood disorders, and even early death. This could be taken into account as an aggravating factor in the tribunal's sentencing decision.

He also described, however, how Babic's guilty plea has had a positive impact on victims - a potential mitigating consideration. When Babic admitted his crimes, Locnar said, the "perpetrator finally was given a first and a last name. Guilt has been individualised".

The defence also called Drago Kovacevic - a social worker from Knin who now lives in Belgrade - to testify about how Babic was called a traitor because he favoured negotiating with Croats.

Throughout the sentencing proceedings, lawyers for the prosecution and the defence repeatedly echoed each other's arguments. It was frequently difficult to distinguish one position from the other.

In his closing remarks, defence attorney Robert Fogelnest even quoted from the prosecution's opening statement, repeating prosecution attorney Alex Whiting's observation that "it is an uncomfortable reality that only by hearing the testimony of those on the inside, those who played a role in the crimes themselves, that the full truth of what happened can be known".

The prosecution covered what I wanted to say "in a more thorough and eloquent fashion than I would have been able to," Fogelnest said.

Fogelnest, past president of the US-based National Association of Criminal Defence Lawyers, and one of two lawyers representing Babic, is well-known for having once mounted an unsuccessful defence of New York subway bomber Edward Leary, in which he argued that prescription drugs, including Prozac, left the defendant unable to distinguish right from wrong. This legal strategy came to be referred to as the "Prozac defence".

On April 2, Fogelnest ended his closing statement by reading from the separate opinion of Judge Florence Ndepele Mwachande Mumba in the controversial Deronjic sentencing judgment earlier in the week.

Judge Mumba had endorsed a 10-year sentence for Deronjic, a Bosnian Serb politician who ordered an attack on an unarmed Bosnian Muslim village, arguing that " vengeance may be manifested in terms of a harsh sentence for an accused person who has pleaded guilty".

Judge Wolfgang Schomburg had dissented in the Deronjic case, calling for a 20-year sentence.

Babic sat motionless throughout the nearly eight hours of proceedings. His only show of emotion came during Fogelnest's closing remarks, when the lawyer made reference to the effect Babic's actions have had - and will continue to have - on his family.

Asked whether he would like to address the tribunal directly, Babic stood and said, "I'm very sorry for what I did … The historical truth has to be recorded so future generations can learn from our mistakes."

The question about how to appropriately sentence Babic goes to the very heart of the tribunal's mission.

If the tribunal's primary purpose is to establish the truth about what happened in the former Yugoslavia and promote reconciliation, Babic's frank admission of guilt, cooperation with the prosecution, and acceptance of responsibility are of paramount importance. But if its primary purpose is to punish criminal acts, Babic's behaviour is less relevant.

Toward the end of his closing statement, Fogelnest told the judges, "What a burden you men have. I'm glad it's not mine." He declined to offer a recommended sentence saying he was "incompetent to do it" because he was "emotionally involved" in the case.

Orie said he could not predict how long it would take the tribunal to reach its decision.

Rachel S. Taylor is an IWPR editor in The Hague.