Court Balances Gravity of Crime Against Voluntary Expression of Guilt and Remorse: Babic Sentenced to 13 Years

Milan Babic, one-time president of the Republic of Serbia Krajina (RSK), was sentenced today to 13 years in prison for his part in 'cleansing' the Krajina of Croats in 1991 and 1992. Babic voluntarily came forward to testify against Slobodan Milosevic, though he risked incriminating himself and was indicted following his testimony. He also testified against Momcilo Krajisnik, former president of the Assembly of Republika Srpska. Babic pled guilty to persecutions on ethnic or religious grounds as a co-perpetrator with Milosevic, Krajisnik and others in a joint criminal enterprise to ethnically cleanse the Croatian Krajina of non-Serbs. At least for awhile, he was in the inner circle. According to the judgment, his vanity and 'ethno-egoism' kept him in that position even after he realized the extent of its criminality.

As part of its plea agreement with the Accused, the Prosecution recommended that the Court sentence him to no more than 11 years in prison, recalling that former RS President Biljana Plavsic received an 11 year sentence following her guilty plea. There has been considerable criticism that her sentence was too light in view of her central role in Bosnia's ethnic cleansing. Other than her guilty plea, she does not appear to have cooperated further with the Prosecution. This Trial Chamber refused to consider Plavsic's sentence, noting that each individual must be judged on his or her own particular circumstances. Exceeding the Prosecution's recommendation can be seen as the Court's rejection of comparative sentencing as well as its view of the gravity of the crimes and Babic's central role in them. That the Court did not impose a harsher sentence is likely the result of the value it placed on plea agreements, Babic's voluntary and extensive cooperation with the OTP and the Tribunal, the risks he undertook to come forward, and his remorse.

Despite having exceeded the Prosecutor's recommended sentence, the Court's judgment stands as a judicial acceptance of plea agreements in Tribunal practice, at least as far as this trial chamber is concerned. The Court concluded, 'The Trial Chamber accepts the parties' arguments that the case-law of the Tribunal has consistently considered a guilty plea as a mitigating factor.' The Chamber went on to emphasize the importance of the Tribunal's role in establishing the truth, implying that it is particularly aided by admissions of guilt. 'The Trial Chamber considers that by his guilty plea and his account of the events, Babic has contributed significantly to the reconciliation process in the territory of the former Yugoslavia particularly in Croatia and Bosnia-Herzegovina.' The Court found Babic's acceptance of guilt 'exceptional' because '[it] made it more likely that an indictment would be issued against him.'

Finding that cooperation with the Prosecutor was a 'substantial' mitigating factor, the Court noted the Prosecution's submission that Babic's testimony in the Milosevic trial 'provided far-reaching insight in the decision-making, the operation, and the plans of the JCE [joint criminal enterprise] around Slobodan Milosevic, which no other insider witness had been able to provide so far.' The Prosecution concluded, 'the evidence provided by Babic was of major significance to the Prosecution's case. . . .'

The Court also found that Babic's expressions of remorse were sincere and, therefore, would be considered in mitigation. The judgment quoted his statement of remorse extensively: 'I come before this Tribunal with a deep sense of shame and remorse. I have allowed myself to take part in the worst kind of persecution of people simply because they were Croats and not Serbs. Innocent people were persecuted; innocent people were evicted forcibly from their houses; and innocent people were killed. Even when I learned what had happened, I kept silent. Even worse, I continued in my office, and I became personally responsible for the inhumane treatment of innocent people. . . .

'These crimes and my participation therein can never be justified. . . . Only truth can give the opportunity for the Serbian people to relieve itself of its collective burden of guilt. Only an admission of guilt on my part makes it possible for me to take responsibility for all the wrongs that I have done.'

Despite accepting his remorse as a mitigating factor and remarking that he 'demonstrated some courage' in admitting guilt, the Court concluded that '[it] is not convinced that he has, at all times, recognised the full significance of the role he played in Croatia in that period.' Nor was it satisfied that Babic had acted to alleviate the suffering of victims, as represented by his Defence counsel.

The Court also rejected arguments by both Prosecution and Defence counsel that Babic's role in the joint criminal enterprise was limited. Though he was not the prime mover, the Court wrote, he 'chose to stay in power and provided significant support for the persecutions against non-Serb civilians. . . .' His actions contributed to the murder of hundreds of Croat civilians, prolonged imprisonment of several hundred in inhumane living conditions, deportation and forcible transfer out of the Krajina, and the deliberate destruction of their homes, cultural institutions, historic monuments and sacred sites, which were all part of the joint criminal enterprise to ethnically cleanse the Croatian Krajina. In fact, the Court found the extreme gravity of the crime to be an aggravating factor in sentencing. 'The crime, which was characterized by ruthlessness and savagery and was committed with the intent to discriminate against non-Serb civilians, strongly impacted on victims and their relatives. Their suffering is still significant. Participants in crimes of this gravity should expect sentences of commensurate severity.'

As noted above, Babic's leadership position was also considered in aggravation. His inflammatory speeches prepared the Croatian Serb population to accept the campaign of persecution against their Croat neighbors.

A final mitigating factor the Court accepted was Babic's family and personal circumstances. Since coming forward, he and his family have lived in fear of violent retribution. They can never return to their homeland, according to Defence counsel, and Babic will have to serve his sentence in a high security situation. The Court agreed, 'By agreeing to substantially cooperate with the Prosecution in the context described above, Babic incurred substantial security risks for himself and his loved ones.'

The Court refused to consider Babic's upstanding character prior to the conflict in mitigation, noting that many people who committed crimes and participated in persecution were ordinary people before the war. '[P]rior good character of a convicted person . . . does not as such count in mitigation,' absent exceptional circumstances.

In summary, the Trial Chamber balanced significant factors that called for opposite results -- the extreme gravity of the crimes to which Babic contributed in a leading role against his voluntary admission of guilt and remorse and his crucial cooperation with the Prosecution in its attempt to bring his former collaborators to justice.