Court Questions Plea Agreement in Srebrenica Case

In an astounding turn of events, a trial chamber declined to accept a plea agreement between the Office of the Prosecutor and Accused, Momir Nikolic, whose trial was originally due to start this week. In an indictment naming him with three others, Nikolic was charged with 6 counts of crimes against humanity, war crimes and genocide (or, alternatively, complicity to commit genocide) for crimes committed in Srebrenica in 1995.

Under the terms of the plea agreement, Nikolic agreed to plead guilty to one count of persecution on political, racial or religious grounds, a crime against humanity, and to cooperate fully with the OTP, including testifying against his co-accused and in other trials concerning Srebrenica. In exchange, the prosecutor agreed to drop all other charges, including the charge of genocide, and to recommend a sentence of 15 to 20 years in prison -- after Nikolic testifies.

The three-judge panel with Presiding Judge Liu Daqun (China) and ad litem Judges Carmen Maria Argebay (Argentina) and Volodymyr Vassylenko (Ukraine) seemed wholly unfamiliar with the practice of plea bargaining, which the ICTY adopted into its rules some years ago. Judges at the ICTY come from various legal traditions, the two most prominent being the Common Law System and the Civil Law System. Plea bargaining has been a well-known practice in Common Law Systems for centuries. By providing an incentive for an accused to plead guilty -- usually a reduced sentence -- the accused gives up his right to require the prosecutor to prove the charges against him at trial. Plea bargaining saves time and money, as well as trauma for witnesses who would otherwise have to testify and face cross examination by the accused. Plea agreements are not used in the Civil Law tradition.

To date, there have been about eight plea bargains at the ICTY, the most recent by Biljana Plavsic, who also pled to one count of persecution in exchange for the OTP dropping a genocide charge and recommending a sentence of less than life in prison. Apparently, the Nikolic plea bargain is the first considered by these three judges, none of whom come from a Common Law Legal System.

Nikolic's agreement with the prosecutor is a particularly important plea bargain because it concerns Srebrenica, the site of the worst massacre on European soil since WWII, where Bosnian Serb forces rounded up and executed a minimum 7000 Muslim men and boys. Another trial chamber of the ICTY ruled it constituted genocide. That case, OTP v. Radislav Krstic, is on appeal. Srebrenica was a UN safe haven that sheltered at least 45,000 Bosnian Muslims until it fell to an onslaught by the VRS.

In his Statement of Facts and Acceptance of Responsibility attached to the plea agreement, Nikolic stated that the executions of thousands of Muslim men and boys were planned and known about at the highest levels in the Bosnian Serb Army (VRS). As Assistant Commander for Security and Intelligence of the Bratunac Brigade of the VRS, Nikolic was ordered to coordinate and supervise 'the transportation of the women and children to Kladanj and the separation and detention of able-bodied Muslim men,' which he did. He was asked to help identify sites for detention where the men and boys were to be detained pending their execution. Nikolic passed this information on to his commander and co-accused, Vidoje Blagojevic, who appeared to be 'fully informed of the transportation and killing operation.'

In his written statement, Nikolic identified by name other officers and civilians involved in executing the plan. Some have been indicted by the ICTY. He also admits his involvement in exhumation of mass graves and reburial -- and names those who ordered him to do it. In addition, he relates the intentional destruction of compromising evidence by officers of the VRS Drina Corps, as well as meetings with VRS officers and a visit from the State Security Service to encourage his silence after he was summoned for questioning by the ICTY.

If the plea bargain is ultimately accepted by the judges, Nikolic will testify against his co-accused, Blagojevic, Dragan Obrenovic, and Dragan Jokic at their trial set to begin shortly. His testimony on the stand may provide yet more insight into the Srebrenica massacre, how it was planned, carried out and covered up. It may also encourage others to come forward to discuss exchanging their testimony for a more lenient recommendation on sentencing from the prosecutor. Of equal importance is its potential for lessening the denial, still held by some, that Bosnian Serbs massacred thousands of Bosnian Muslim civilians at Srebrenica. It may also serve the survivors to have one of the perpetrators acknowledge the truth and vast scale of the crimes and accept his share of responsibility for it.

All of this is jeopardized, however, by the Trial Chamber's unfamiliarity with and apparent distrust of the practice of plea bargaining. Among several concerns, Judge Liu challenged the parties' agreement to delay sentencing until after Nikolic testifies in the trial of his co-accused. Sentencing him before he testifies would prevent his inflating evidence to gain greater mitigation, Judge Liu said. Prosecutor Peter McCloskey disagreed. Having the accused testify prior to sentencing provides the prosecution and the Court with an opportunity to judge his credibility and sincerity, and, thereby, his degree of cooperation with the prosecution. From their point of view, it gives him more incentive to reveal all that he knows, including his role in the crimes, as he seeks to impress court and prosecutor with his cooperation. If he's already received his sentence when he testifies, he might be more motivated by avoiding the wrath of his co-accused.

Another aspect of the plea bargain that appeared incomprehensible to the judges was the prosecution's agreement to dismiss the remaining charges only at sentencing, i.e. after Nikolic's testimony. Judge Liu asked, 'Do you mean that the accused pleads guilty to persecution but the other charges are still there?' Prosecutor McCloskey tried to explain that they would be held in abeyance in case the accused reneges on his part of the agreement by attempting to withdraw his guilty plea to the one charge of persecution. If he were allowed to do that after the court had dismissed all other charges, he could only be tried on the persecution charge. When he seemed unable to convince the judges that this procedure didn't violate some basic right of the accused, McCloskey suggested the Court could dismiss the other charges now, but without prejudice -- which means the prosecutor could re-file them if the accused didn't live up to his part of the bargain. By the end of the hearing, in an effort to salvage the plea agreement, McCloskey seemed to suggest he would ask for all but the one charge to be dismissed 'with prejudice,' in which case they could not be re-filed.

Another judicial concern was that the plea agreement appeared to require Nikolic to waive certain rights guaranteed to an accused. Those rights include the right to plead not guilty and require the prosecution to prove the charges beyond a reasonable doubt at a fair and impartial public trial; to be tried without undue delay; to cross examine witnesses against him at trial; not to be compelled to testify against himself or to confess guilt; to remain silent, among others.

What the judges failed to understand is that the accused also has the right to plead guilty, to forego a public trial and to try to mitigate his crime and punishment by acknowledging responsibility and cooperating with the prosecutor. He has the right to waive the rights that accrue to him if he chooses to go to trial.

If the judges persist in not accepting the plea agreement, they will deny the accused the basic rights he voluntarily seeks -- and subject him to the possibility of a conviction on all or some of the 6 counts with which he is charged in the original indictment, including genocide. They will subject him to the possibility of what he seeks to avoid, a life sentence.

Nikolic's defense attorney attempted to explain this to the Trial Chamber. '[The accused Nikolic], in assuming responsibility for guilt, also assumed responsibility to tell the truth. He is prepared to cooperate with the prosecutor, to achieve this cooperation so he could have the recommendation by the prosecutor that he sincerely cooperated with them and that it will have an effect on the severity of his sentence.' Defense counsel pointed out that the only mitigating factor in sentencing that is specifically mentioned in ICTY rules is cooperation with the prosecutor. (Rule 101 (B) (ii)). The prosecutor also sought to explain the fundamentals of plea bargaining to the Trial Chamber -- all without apparent success.

Judge Liu adjourned the hearing with a direction to the parties to meet and try to come up with an agreement that addresses the Chamber's concerns. Both prosecution and defense counsel seemed puzzled about how to proceed. The Chamber's response to the plea agreement was a little like a person questioning whether the silver platter on which they are being offered a gold ring is real silver or merely silver plate. The gold ring goes unnoticed and may be lost over too much concern with the method of its delivery. Perhaps the best suggestion is for counsel to provide a joint brief on the meaning and uses of plea bargains -- both in general common law and ICTY jurisprudence. It may be the only way forward short of Momir Nikolic rejoining his co-accused in the dock.