Court Accepts Nikolic Guilty Plea, Dismisses Genocide Charge 'Without Prejudice'

On the second try, Momir Nikolic’s plea of guilt to crimes against humanity was accepted by the Trial Chamber. The Court’s action followed a revised plea agreement between the prosecutor and defense counsel to address concerns raised by the Court over the initial agreement. Of primary importance, the prosecutor agreed to drop all charges against Nikolic, other than the one to which he pled, and to do so at the time his plea was entered in court, i.e. May 7, 2003.

Initially, the prosecutor proposed to hold the other charges in abeyance until Nikolic had testified against his co-accused in order for the prosecutor and the court to ascertain the degree and sincerity of his cooperation, in other words, to make sure he followed through on his promise. Cooperation with the prosecution is the only specifically identified factor in ICTY rules that the court must consider in mitigation of sentence. Nikolic’s lawyer advised the Court that it was this that motivated his guilty plea and his decision to testify.

As per the revised plea agreement, the prosecutor asked the Court to dismiss all other charges “without prejudice” following the Accused’s plea of guilty to persecutions of civilians on political, racial and religious grounds. The qualifier “without prejudice” allows the prosecutor to seek the court’s approval to reinstate the other charges at a later date. Though unstated in the written agreement, it is likely the prosecutor would only do so if Nikolic breaks his part of the bargain by refusing to testify against his co-accused when the time comes, or by attempting to withdraw his guilty plea altogether. It is not clear but likely that Court approval would be required to reinstate the other charges.

The Trial Chamber accepted Nikolic’s guilty plea after assuring itself that the accused was entering the plea voluntarily, unequivocally and being fully informed of the meaning and consequences of his act. In addition, as mandated by ICTY Rule 62 bis, the Chamber assured itself that there is a “sufficient basis for the crime and the accused’s participation in it,” based on the submissions in the plea agreement, including the annexed “Statement of Facts and Acceptance of Responsibility.”

In the Plea Agreement, Nikolic acknowledged that the facts support each element of persecution, a crime against humanity, as outlined in the indictment. Specifically, that an armed conflict existed from 6 April 1992 until 14 December 1995; that there was a widespread and systematic attack against the civilian population of Srebrenica, including the murder of over 7000 Bosnian Muslim men, the cruel and inhuman treatment of Bosnian Muslim civilians, terrorisation of civilians, destruction of personal property and forcible transfer of the entire Bosnian Muslim population from the Srebrenica enclave; that Nikolic committed the acts described in the indictment because the victims were Bosnian Muslims and that Nikolic was aware of the widespread and systematic nature of the abuses and their effect on the entire population of Bosnian Muslims from the Srebrenica enclave.

The trial of Nikolic’s three former co-accused is scheduled to begin next week. In discussions before the Chamber, the prosecution anticipated it would call Nikolic to testify at that trial in June or July. His testimony will certainly include the facts described in his eight page “Statement of Facts and Acceptance of Responsibility” appended to the plea agreement. In it, he directly implicates Vidoje Blagojevic, his former commander, in the plan to kill thousands of Bosnian Muslim men from Srebrenica: “I discussed the operation to transport the women and children to Kladanj and separate, detain and kill the able bodied Muslim men in Potocari. It was apparent to me that Colonel Blagojevic was fully informed of the transportation and killing operation and expected me to continue to carry out the duties related to those operations that I had begun that morning.” He reported to Blagojevic during the operation as well: “[O]n 14 July . . . I informed my commander, Colonel Blagojevic, of .. . the instructions I had received from Colonel Beara and that all the prisoners would be moved to Zvornik where they would be detained and killed. He accepted what I said and never queried me.”

When the Trial Chamber accepted Nikolic's plea to one count of crimes against humanity, it also accepted the prosecution's motion to dismiss all other charges without prejudice. Both parties will make written submissions to the Court on sentencing. In the Plea Agreement, the prosecution indicated it would recommend a sentence in the range of 15 to 20 years in prison. Defense counsel suggested 10 years was more appropriate. The Court will consider the submissions, with supporting arguments, at a sentencing hearing to be held within two to four months. Though the Trial Chamber side-stepped the issue that troubled it earlier of whether to delay sentencing until after Nikolic testifies in the trial of his former co-accused, practicalities will insure that in fact happens. It will also let the prosecutor assure himself that Nikolic indeed testifies as he has promised. For its part, the accused will have a chance to show his sincerity, truthfulness and cooperation to the Court which will sentence him.

Delaying sentencing until after Nikolic testifies is in the interests of both sides. While the Court will consider the recommendations of the parties, it is not bound by them. It could still impose a life sentence or something closer to the 46 years General Krstic received for his part in the Srebrenica genocide. Nikolic, too, was charged with genocide -- unlike his former co-accused who were charged 'only' with complicity to commit genocide. That distinction may have been a further reason for Nikolic to plead guilty. Biljana Plavsic, former President of Republika Srpska, was also charged with genocide and pled guilty to one count of crimes against humanity for persecution, though she refused to testify in other trials. She received a sentence of 11 years, though her age and conduct following the war were factors lessening the sentence she might have received. It is likely that both the accused and the prosecutor have this sentencing history in mind. Time will tell whether other accused will consider it as well.