Culpability and Character Significant in Sentencing Differences

Citing substantial mitigating factors, a three judge panel of Trial Chamber I sentenced Dragan Obrenovic to 17 years in prison for taking actions which furthered the killing operation at Srebrenica. The Court found him responsible for releasing seven of his men to assist with prisoners he knew were going to be killed and approving the release of two more to assist with the mass burial operation. In addition, the three judges based his culpability on his inaction, noting that he was a man so respected by his subordinates that they would follow him into 'the barrel of a cannon.' He failed to prevent them from taking part in the killing operation and he failed to punish those who did. His liability, the Court concluded, stems primarily from his responsibility as a commander, though not exclusively.

Obrenovic's guilt, however, was mitigated to a significant degree, unlike his former co-accused, Momir Nikolic, who was sentenced to 27 years by the same Trial Chamber last week. The Court appeared as impressed with Mr. Obrenovic as it was critical of Mr. Nikolic. Two factors appear to be important in the Court's significantly different treatment of the two former co-accused: 1) Nikolic had a more active, pivotal role in the killing operation, while Obrenovic was mainly faulted for inaction as a commander. 2) In the Court's view, Obrenovic was a man of upstanding character, while they considered Nikolic's character wanting.

In contrast to Obrenovic's guilt as a commander who did not act when he should have, the Court faulted Nikolic for actively and without objection facilitating the killing operation (he helped locate detention and killing sites and coordinated the exhumation and re-burial of bodies in autumn 1995). While finding Nikolic was an implementor, not a commander, the Court decided his 'active and willing participation' was an aggravating factor. As head security and intelligence officer for the Bratunac Brigade, Nikolic was also in a position of authority, though he lacked command responsibilities.

Obrenovic's role, on the other hand, was that of commander (deputy and acting commander of the Zvornik Brigade which had primary responsibility for the zone where the killing operation was put into effect). While noting that a position of command responsibility can be an aggravating factor, the Court held 'it would be inappropriate to use the same conduct to both establish liability and to establish an aggravating circumstance in this case.' The Court seemed to give little actual consideration to Obrenovic's affirmative actions in releasing his men to assist in different phases of the killing operation.

The second obvious distinction in the way the Court viewed the two Accused was its evaluation of their characters. Obrenovic was a man who expressed 'genuine remorse,' who, in pleading guilty, 'never sought to offer excuses or shift the responsibility for his actions,' provided substantial cooperation to the Prosecution both before and after he was charged, 'was a highly respected member of his community who didn't discriminate against anybody' and even helped Muslims during the war, and has taken affirmative steps toward his rehabilitation which are likely to continue after his release from prison.

In evaluating Nikolic, the Court found that 'his guilty plea is an important factor in mitigation of the sentence' because it helps establish truth, promotes reconciliation and shows his acceptance of responsibility for his role in the crimes. The judges acknowledged that the Prosecution felt Nikolic had fully cooperated, including providing information that led to the identification of two new mass gravesites. The Court, however, disagreed based on its negative assessment of the Nikolic's credibility. 'The Trial Chamber takes into consideration numerous instances where the testimony of Momir Nikolic was evasive and finds this to be an indication that his willingness to co-operate does not translate into being fully forthcoming in relation to all the events, given his position and knowledge.' The Court noted in particular Nikolic's false statement in which he claimed responsibility for crimes he did not commit. 'Had he been completely sincere about co-operating, Momir Nikolic would have been more open in all aspects of his testimony and been more forthright in his responses before, and to, the Trial Chamber.' Additionally, while recognizing that Mr. Nikolic was testifying about events which occurred over eight years ago, 'the Trial Chamber found that his testimony was not as detailed as it could have been in certain areas. This is an indicator of the character and a certain lack of candour on the part of Momir Nikolic, which the Trial Chamber has taken into consideration in its overall evaluation.' Except for the out-of-court statement to the OTP falsely claiming responsibility for crimes he did not commit, the Court gave no specific examples of his 'lack of candour.'

By contrast, the Court found that Obrenovic's cooperation was substantial. He not only 'provided truthful testimony and detailed information in the Blagojevic trial regarding his knowledge of events related to Srebrenic and the VRS military structure, answering each question as clearly and precisely as he could, regardless of whether it was asked by the Prosecution defence counsel or the Trial Chamber' and providing the Prosecution with numerous documents relevant for the Blagojevic trial. He also cooperated with the Prosecution during its investigation of Srebrenica before he was indicted, including allowing the Prosecution to search Zvornik Brigade property though he knew it would turn up incriminating evidence.

While finding that Nikolic's expression of remorse should be considered a mitigating factor, the Trial Chamber nevertheless found it shouldn't be given 'substantial weight.' Their explanation was conclusory, 'The Trial Chamber recalls Momir Nikolic's explanation of his reasons for pleading guilty, as well as his related reason for providing the Prosecution with false information during the plea negotiations.' The Court identified Nikolic's reasons for pleading guilty by quoting his statement to them at his sentencing hearing, 'to contribute to the full truth being established about Srebrenica and the victims there and for the government organs of Republika Srpska, and all the individuals who took part in these crimes should follow in my footsteps and admit to their participation and their guilt . . . .' He also said he wanted to help the Tribunal and Prosecutors 'arrive at the full truth' and to avoid subjecting victims and survivors to further suffering through the necessity to testify. He added that his 'confession is an important step toward the rebuilding of confidence and coexistence in Bosnia and Herzegovina.' The one discordant note was his wholly unrealistic wish to one day return to his native town of Bratunac and live with all people in peace and harmony like they did before the war. As for the reasons he gave for providing false information during his plea negotiations, he said he was desperate to get a plea agreement so he could avoid the pain of reliving Srebrenica that would be entailed by a trial. The Court only referenced this in its judgment, without explaining their apparently negative reaction to it.

The Court's conclusion not to award his remorse much weight again reflects their view of him as insincere. Once they established that he lied, his actions, testimony and explanations were seen through that lens. Nikolic was never able to redeem himself.

The same Court found Obrenovic's statement of remorse sincere and a substantial mitigating factor. Remarking on its opportunity to observe Obrenovic during his testimony at the Blagojevic trial and his own sentencing hearing, the Trial Chamber found that 'Dragan Obrenovic is genuinely remorseful for his role in the crimes for which he has been convicted, and seeks to atone for his criminal conduct.'

The Trial Chamber took special note of the fact that Dragan Obrenovic had taken steps toward rehabilitation and was likely to continue. In holding this was an additional factor in mitigation of sentence, the Chamber quoted Obrenovic's lawyer, 'Civilised society requires individual accountability. If one makes the right choice when others around him are headed down the wrong roads, then properly he becomes the hero to posterity. But if one makes the wrong choice, that's not the end of the matter. His responsibilities do not end and the book of his life is not yet closed. He still must decide what he's going to do about his mistake.' The Trial Chamber concluded it 'cannot but agree.'

Despite the Court's reservations about plea agreements as set out fully in the Nikolic judgment [see CIJ report, 'Srebrenica Exposed: A Word About Plea Agreements,' November 25, 2003], it pronounced its approval of guilty pleas. Finding that Nikolic's guilty plea 'can contribute to fulfilling the Tribunal's mandate of restoring peace and promoting reconciliation,' the Court pronounced it 'significant.' Its judgment continues, 'The recognition of the crimes committed against the Bosnian Muslim population in 1995 -- crimes that continue to have repercussions into the present -- by a participant in those crimes contributes to establishing a historical record. Although the victims of these crimes and family members of those killed were fully aware of the crimes committed before Momir Nikolic pled guilty, it cannot but be doubted that the recognition of the crimes committed against them by a former member of the Army of Republika Srpska provides some form of closure.' [emphasis in original]

In both judgments, the Court cited an article written by Emir Suljagic, a Srebrenica survivor, and published in the New York Times. Mr. Suljagic wrote that Nikolic's confession 'punches a big hole in the Bosnian Serb wall of denial.' The Court quoted the following passage from his article, 'the confessions have brought me a sense of relief I have not known since the fall of Srebrenica in 1995. They have given me the acknowledgement I have been looking for these past eight years. While far from an apology, these admissions are a start. We Bosnian Muslims no longer have to prove we were victims. Our friends and cousins, father and brothers were killed -- we no longer have to prove they were innocent.' Mr. Suljagic's father and 12 other relatives were killed at Srebrenica.

While the Court approved guilty pleas, it showed more reticence about plea agreements in which some charges are generally dropped in exchange for the Prosecutor recommending a lesser sentence than might be expected after a full trial and conviction. From the initial presentation to the Court of Nikolic's plea agreement with the Prosecution, this Trial Chamber showed its discomfort with plea agreements. None of the three judges comes from a jurisdiction where plea agreements are used. Their sentencing judgments in both the Nikolic and Obrenovic cases express a concern that plea agreements will be used inappropriately to save Tribunal resources and expedite proceedings. This, the Panel said, should not be a consideration when prosecuting the types of crimes that come before the Tribunal. 'The crimes falling within the jurisdiction of this Tribunal are fundamentally different from crimes prosecuted nationally,' the Court noted in Nikolic. Nevertheless, the Trial Chamber concluded that plea agreements may 'further the work -- and the mandate -- of the Tribunal' if used with caution and only 'when doing so would satisfy the interests of justice.'

In both the Nikolic and Obrenovic cases, the Trial Chamber found the plea agreements served the interests of justice despite the grievousness of the charges. In both cases, a charge of genocide was dropped as part of the plea agreements. The two former officers pled to one count of persecutions as a crime against humanity. While the crime of persecutions lacks the emotional content that genocide carries, it is similar in its gravity. The distinction lies in the need to prove a specific intent to commit genocide, as opposed to an intent to discriminate, the former being much more difficult to prove than the latter.

Despite accepting the plea agreement Nikolic and the Prosecution worked out, the Court rejected the Prosecutor's proposed sentencing range, substantially increasing Nikolic's sentence. From defence counsel's viewpoint, this makes plea agreements far less appealing, though the possibility remains that Nikolic might have received an even harsher sentence after trial. The fact that Obrenovic's sentence fell within the recommended range may do little to revive the usefulness of plea agreements. In the Court's view, Obrenovic was an exemplary man, soldier and convicted criminal. He made a series of grave mistakes (crimes), but he responded in an exemplary fashion. He assumed responsibility, expressed remorse and set out to atone for what he had done. Nikolic was not blessed with an exemplary character, at least in the Court's view. His admission of guilt was colored with self-interest. He lied to assure he could avoid trial. He was indecisive, perhaps suffering from contradictory impulses. He could not control himself in court, breaking into tears on several occasions. It's anything but clear that the character of the two guilty men was the determinative factor in the Court's sentencing, though their perception of Nikolic's lack of credibility appears to have been a significant influence. Certainly, the Court viewed Nikolic as the more culpable party, actively and willingly performing his role in the killing operation. There is little doubt it had a substantial effect on the sentence the Court imposed on Nikolic. For future accused, however, Obrenovic's lighter sentence may offer little encouragement to consider negotiating a plea of guilt with the OTP, unless they, too, can demonstrate exemplary character.

In summary, from these two judgments one can conclude that this Trial Chamber considers that guilty pleas have an important role in establishing truth, a historical record and contributing to reconciliation in the region. However reluctantly, it has accepted plea agreements as a mechanism for securing guilty pleas. Nevertheless, the Court has also made clear it will consider each case on its own merits. Where culpability is greater, the sentence will be greater. In addition, something quite exceptional is required to mitigate culpability for such grave crimes, even where an accused has pled guilty.