Trial Chamber Addresses Sentencing Fairness, Revives Use of Plea Agreements
Trial Chamber Addresses Sentencing Fairness, Revives Use of Plea Agreements
In an exceedingly well-reasoned decision, a three judge panel of the ICTY (International Criminal Tribunal for the Former Yugoslavia) sentenced Dragan Nikolic to 23 years in prison for his participation in murder, rape and torture as a commander at the Susica Prison Camp in the Vlasenica municipality of Bosnia-Herzegovina. Nikolic, the first person indicted by the ICTY in 1994, pled guilty only a few months ago. The sentence imposed by the Trial Chamber exceeded the Prosecution's recommendation of 15 years. It is the second time in a month that a trial chamber has gone outside the sentence recommended by the prosecutor as part of a plea agreement.
To arrive at its sentence, the Chamber commissioned a study of sentencing practices in 23 countries throughout the world. The Chamber used the report, as well as ICTY and ICTR (International Criminal Tribunal for Rwanda) jurisprudence, in determining the appropriate sentence. Both the report and this Chamber's written judgment are welcome developments in what many observers consider a somewhat arbitrary and incoherent sentencing practice at the Tribunal.
Based on the sentencing survey, the Court found that 'in most of these countries a single act of murder by sustained beatings and motivated by ethnic bias attracts life imprisonment or even the death penalty….' It went on to review the specific acts forming the basis of the crimes to which Dragan Nikolic pled guilty. The Chamber found him guilty for his involvement in nine murders. They remarked on the sadistic brutality of the lengthy and repeated beatings which, for some, led to death. 'The Accused brutally and sadistically beat the detainees. He would kick and punch detainees and use weapons such as iron bars, axe handles, rifle butts, metal 'knuckles', truncheons, rubber tubing with lead inside, lengths of wood and wooden bats to beat the detainees. . . .The other detainees, including the children, observed the Accused's criminal conduct and were afraid the same might happen to them.' 'One of the most chilling aspects of the Accused's behaviour was the enjoyment he derived from his acts.' 'When detainees who were being beaten begged to be shot, the Accused would reply: 'A bullet is too expensive to be spent on a Muslim.'' In addition to murder, Nikolic was charged and pled guilty to torture for the lengthy, brutal and sadistic beatings he administered.
Nikolic also confessed to aiding and abetting rape of women prisoners held at the Susica Camp. The Court quoted the indictment in its findings, 'Dragan Nikolic personally removed and otherwise facilitated the removal of female detainees from the hangar, which he knew was for the purposes of rapes and other sexually abusive conduct. The sexual assaults were committed by camp guards, special forces, local soldiers and other men.'
At Nikolic's sentencing hearing, a former camp inmate gave the Court a glimpse of the reality behind the crime. 'Dragan Nikolic took girls and women out of the hangar. In the evening, he would take girls out, and they would return in the morning, dishevelled, sad. They were not allowed to speak to the rest of us. [. . .] But eventually each of them would confide in her sister or mother and tell them what had happened to them the previous night. [. . .] You can imagine what happened to them. They were removed against their own will, and they were unable to resist. They could not defend themselves, and they had to do what they were told and ordered to do. They were forced to -- and I don't know how to put it -- to have intercourse with strangers or sometimes men they even knew. They had to do every single thing they were told to do.'
The Trial Chamber also noted the long term consequences of rape, quoting the testimony of another survivor. 'I felt miserable, degraded. I wanted to be a good mother, the best I could. I wanted my child to grow up in a beautiful family, but that couldn't be any more. I felt humiliated as a woman and as a mother by the very fact that I was there in that camp in that situation. [. . .] It's been 11 years now, but my son is still pensive, introverted, sad and he knows what had happened to me. He is withdrawn. He doesn't like talking to anyone. He's sad. He often tells me that he doesn't like living anymore. He tells me that he often thinks of suicide. [. . .] [He] was eight years old when we arrived at the camp.'
Having reviewed the evidence, the Court concluded, 'This Trial Chamber finds it hard to imagine how murder, torture and sexual violence could be committed in a harsher and more brutal way than employed by the Accused, assisted by others.' Among the factors the Court considered to be 'especially aggravating were:' the 'enormous brutality' of the crimes and their continuation over a relatively long period of time; the Accused's knowing abuse of his position a camp commander; the particular abuse of his power 'vis a vis female detainees in subjecting them to humiliating conditions in which they were emotionally, verbally and physically assaulted and forced to fulfil the Accused's personal whims. . . ;' the particular vulnerability of the detainees who were treated as virtual slaves, as well as the high number of victims and 'multitude of criminal acts.' In listing In listing aggravating circumstances, the Court also pointed out, 'Due to the seriousness and particular viciousness of the beatings, the Trial Chamber considers this conduct as being at the highest level of torture, which has all of the making of de facto attempted murder.'
The Trial Chamber concluded that based on the gravity of the crime and the aggravating circumstances, the only appropriate punishment was imprisonment 'up to and including the remainder of the Accused's life.' As directed by the ICTY statute, the Chamber then considered mitigating circumstances and found four of particular importance: 1) the plea agreement and guilty plea; 2) remorse, 3) reconciliation and 4) substantial cooperation with the Prosecution.
After reviewing the treatment of guilty pleas in the 23 jurisdictions studied as well as in ICTY/ICTR jurisprudence, the Trial Camber concluded that guilty pleas mitigate a sentence because they reflect an accused’s acceptance of responsibility. Importantly, it recognized that the rationale for this is broader in Tribunal jurisprudence than it is in national legal systems because through it, “the accused contributes to establishing the truth about the conflict in the former Yugoslavia and contributes to reconciliation in the affected communities.” Supporting the mitigation of Nikolic’s sentence, the Court found, was the fact that he pled guilty to the entire indictment without having any of the charges against him dismissed. The judges also noted that this was the first case involving the events at Susica Camp, thus giving the Tribunal information it didn't have. Approximately 8,000 individuals experienced Susica Camp, anywhere from 300 to 500 at a time. Those not subjected to torture, sexual abuse and murder nevertheless were victims of wholly inadequate food, water, hygiene and medical care, as well as witnessing crimes perpetrated on their fellow prisoners.
Unlike the case of Momir Nikolic [no relation] where another trial chamber doubted his sincerity and truthfulness, this Trial Chamber believed Dragan Nikolic, citing the following statement at his sentencing hearing as an indication of his honesty and readiness to take responsibility: “I genuinely feel shame and disgrace. [. . . ] The question arises why did I do all that? I had enough time to think about it, 11 years. But it is still hard to find an answer to that question.” He also told a psychologist that “it represented a dark side of his character which he did not know previously had existed.”
Another mitigating factor that impressed the Court was his expression of remorse. “I repent sincerely [. . . ]. I genuinely repent. I am not saying this pro forma, this repentance and contrition comes from deep inside me, because I knew most of those people from the earliest stage. [. . . ] I want to avail myself of this opportunity to say to all of those whom I hurt, either directly or indirectly, that I apologise to everyone who spent any time in Susica, be it a month or several months. . . .”
The Court asserted that punishment has a limited role in promoting reconciliation, quoting a survivor witness: “There is no penalty, no punishment bad enough to make up for the death of a single child, for the rape of a single girl, let alone all the things that actually happened.” Turning to the statement of another victim witness, however, the Court concluded that admission of guilt and responsibility contributes to reconciliation: “I would like to say to that [sic] in Vlasenica [there] are still another 50 Dragan Nikolic that have to admit their guilt of what happened there. They have to surrender and take responsibility of what they did to us. A sincere reconciliation is not possible as long as they are pretending that nothing happened. Dragan Nikolic know[s] personally every single one of those who committed the crimes.'
Even more persuasively, the Trial Chamber recounted a dramatic incident that occurred during Nikolic’s sentencing hearing, when Habiba Hadzic turned to him and asked if he knew what happened to her two sons whom she had last seen at Susica Camp 11 years before. After conferring with his lawyer, he told her about their deaths. He said he had wanted to give her and others this information even earlier, but “circumstances were not favourable.” The Court concluded, “The Trial Chamber considers this fact as an attempt to achieve reconciliation by the Accused and his readiness and willingness to contribute to the truth-finding mission of the Tribunal.'
The fourth factor the Court considered of particular importance for mitigation was the extent of Nikolic’s cooperation with the Prosecution. In part, the Prosecution advised the Court that “The Accused provided detailed and extensive information about crimes and perpetrators in his municipality, as well as their relationship to leadership figures and objectives. Such information is not typically accessible except through a participant in the process and the Accused’s testimony is expected to be of unique and considerable value in future cases.” While the Court found it difficult to judge the degree of his cooperation from a partial review of ten days of Prosecution interviews with Nikolic, it accepted the Prosecution”s submission. In addition, it noted again that Nikolic”s information is the first the Tribunal has had about Susica Camp.
Finally, the Trial Camber considered the parties’ submissions about Dragan Nikolic's character. Before the war, according to his Defence Counsel, Nikolic was “an ordinary man leading an ordinary life.” His friends were Serb and Muslim. He was well liked. The frightening face of evil is apparent in these simple sentences: It is ordinary. It is part of the human condition. It is something that lies dormant in everyone, awaiting a particular circumstance and individual choice.
In rejecting the Prosecution’s recommendation for a 15 year prison sentence, the Trial Chamber properly balanced “the gravity of the crimes and aggravating factors against the mitigating factors,” while considering the goals of sentencing. It concluded, “The brutality, the number of crimes committed and the underlying intention to humiliate and degrade would render a sentence such as that recommended unjust. The Trial Chamber believes that it is not only reasonable and responsible, but also necessary in the interests of the victims, their relatives and the international community, to impose a higher sentence than the one recommended by the Parties.” Because of the practice (in states where the Accused is likely to serve his sentence) of reducing a sentence by a third for good behavior in prison, the Court imposed a sentence of 23 years to assure the Accused would spend at least 15 years behind bars.
The Trial Chamber’s sentencing judgment in the case of Dragan Nikolic provides a model for sentence determination other chambers could follow. The Chamber carefully considered the law, sentencing practices in national courts, and the rationale behind sentencing at the Tribunal. It judiciously balanced the identified interests – of the victims, survivors and the larger community for recognition of the gravity of the offenses, of the Accused and potential accuseds in rehabilitation and recompense, and of the peoples of the former Yugoslavia in the essential part of reconciliation, the establishment of truth.
While a second trial chamber judgment exceeding the prosecution's recommendation on sentence would appear to call the future of plea agreements into question, this one demonstrates that they are very much alive and must be seriously considered by defence counsel in future cases. In this case, if Nikolic had been found guilty of the same crimes after a full trial, he would in all likelihood have received a life sentence. The Court stated that the crimes he committed, together with the aggravating circumstances, led them to the finding that 'no other punishment could be imposed except a sentence of imprisonment for a term up to and including the remainder of the Accused's life.' It is highly unlikely that any of the mitigating factors the Court considered to warrant a 'substantial reduction' in sentence would have existed after a trial and without the plea agreement.
To summarize, the four major factors the Court held mitigated Nikolic's sentence were: the guilty plea, expression of remorse, contribution to reconciliation and disclosure of additional material to the Prosecution. For Nikolic, the difference between accepting responsibility and working with the Prosecution under the terms of a plea agreement and putting the Prosecution to its proof at trial is the difference between spending the rest of his life in prison and being able to live a significant number of years with his family as a free man (where, it is hoped, he will fulfil his promise to continue efforts at establishing truth and contributing to reconciliation).
In no way should this be interpreted as suggesting that accused forego their right to a fair trial and to have crimes alleged proven beyond a reasonable doubt. The right is fundamental to a fair system of justice. Guilty pleas are also part of a fair system of justice, and defendants may find it is in their interests to confess their crimes and forego a trial for a variety of reasons. A plea agreement is a tool that can assist them in doing so, though it is not necessary for an accused to plead guilty. A plea of guilty can also assist victims/survivors, the larger community and the public interest.
As the Trial Chamber recognized in the Nikolic judgment, plea agreements at the ICTY differ from those used in national courts in that by pleading guilty an accused 'contributes to establishing the truth about the conflict in the former Yugoslavia and contributes to reconciliation in the affected communities' in a land still burdened by denial and mutual accusations. A plea agreement can save victims from retraumatization that might occur as a result of remembering and testifying about the horrors they experienced. And it may provide those who have committed horrible crimes a way back to the human community from which their acts have removed them.
Though the Trial Chamber imposed a greater sentence on Dragan Nikolic than that recommended by the Prosecution it is a fair sentence. If he can acknowledge that, he may have made another contribution to reconciliation.
To arrive at its sentence, the Chamber commissioned a study of sentencing practices in 23 countries throughout the world. The Chamber used the report, as well as ICTY and ICTR (International Criminal Tribunal for Rwanda) jurisprudence, in determining the appropriate sentence. Both the report and this Chamber's written judgment are welcome developments in what many observers consider a somewhat arbitrary and incoherent sentencing practice at the Tribunal.
Based on the sentencing survey, the Court found that 'in most of these countries a single act of murder by sustained beatings and motivated by ethnic bias attracts life imprisonment or even the death penalty….' It went on to review the specific acts forming the basis of the crimes to which Dragan Nikolic pled guilty. The Chamber found him guilty for his involvement in nine murders. They remarked on the sadistic brutality of the lengthy and repeated beatings which, for some, led to death. 'The Accused brutally and sadistically beat the detainees. He would kick and punch detainees and use weapons such as iron bars, axe handles, rifle butts, metal 'knuckles', truncheons, rubber tubing with lead inside, lengths of wood and wooden bats to beat the detainees. . . .The other detainees, including the children, observed the Accused's criminal conduct and were afraid the same might happen to them.' 'One of the most chilling aspects of the Accused's behaviour was the enjoyment he derived from his acts.' 'When detainees who were being beaten begged to be shot, the Accused would reply: 'A bullet is too expensive to be spent on a Muslim.'' In addition to murder, Nikolic was charged and pled guilty to torture for the lengthy, brutal and sadistic beatings he administered.
Nikolic also confessed to aiding and abetting rape of women prisoners held at the Susica Camp. The Court quoted the indictment in its findings, 'Dragan Nikolic personally removed and otherwise facilitated the removal of female detainees from the hangar, which he knew was for the purposes of rapes and other sexually abusive conduct. The sexual assaults were committed by camp guards, special forces, local soldiers and other men.'
At Nikolic's sentencing hearing, a former camp inmate gave the Court a glimpse of the reality behind the crime. 'Dragan Nikolic took girls and women out of the hangar. In the evening, he would take girls out, and they would return in the morning, dishevelled, sad. They were not allowed to speak to the rest of us. [. . .] But eventually each of them would confide in her sister or mother and tell them what had happened to them the previous night. [. . .] You can imagine what happened to them. They were removed against their own will, and they were unable to resist. They could not defend themselves, and they had to do what they were told and ordered to do. They were forced to -- and I don't know how to put it -- to have intercourse with strangers or sometimes men they even knew. They had to do every single thing they were told to do.'
The Trial Chamber also noted the long term consequences of rape, quoting the testimony of another survivor. 'I felt miserable, degraded. I wanted to be a good mother, the best I could. I wanted my child to grow up in a beautiful family, but that couldn't be any more. I felt humiliated as a woman and as a mother by the very fact that I was there in that camp in that situation. [. . .] It's been 11 years now, but my son is still pensive, introverted, sad and he knows what had happened to me. He is withdrawn. He doesn't like talking to anyone. He's sad. He often tells me that he doesn't like living anymore. He tells me that he often thinks of suicide. [. . .] [He] was eight years old when we arrived at the camp.'
Having reviewed the evidence, the Court concluded, 'This Trial Chamber finds it hard to imagine how murder, torture and sexual violence could be committed in a harsher and more brutal way than employed by the Accused, assisted by others.' Among the factors the Court considered to be 'especially aggravating were:' the 'enormous brutality' of the crimes and their continuation over a relatively long period of time; the Accused's knowing abuse of his position a camp commander; the particular abuse of his power 'vis a vis female detainees in subjecting them to humiliating conditions in which they were emotionally, verbally and physically assaulted and forced to fulfil the Accused's personal whims. . . ;' the particular vulnerability of the detainees who were treated as virtual slaves, as well as the high number of victims and 'multitude of criminal acts.' In listing In listing aggravating circumstances, the Court also pointed out, 'Due to the seriousness and particular viciousness of the beatings, the Trial Chamber considers this conduct as being at the highest level of torture, which has all of the making of de facto attempted murder.'
The Trial Chamber concluded that based on the gravity of the crime and the aggravating circumstances, the only appropriate punishment was imprisonment 'up to and including the remainder of the Accused's life.' As directed by the ICTY statute, the Chamber then considered mitigating circumstances and found four of particular importance: 1) the plea agreement and guilty plea; 2) remorse, 3) reconciliation and 4) substantial cooperation with the Prosecution.
After reviewing the treatment of guilty pleas in the 23 jurisdictions studied as well as in ICTY/ICTR jurisprudence, the Trial Camber concluded that guilty pleas mitigate a sentence because they reflect an accused’s acceptance of responsibility. Importantly, it recognized that the rationale for this is broader in Tribunal jurisprudence than it is in national legal systems because through it, “the accused contributes to establishing the truth about the conflict in the former Yugoslavia and contributes to reconciliation in the affected communities.” Supporting the mitigation of Nikolic’s sentence, the Court found, was the fact that he pled guilty to the entire indictment without having any of the charges against him dismissed. The judges also noted that this was the first case involving the events at Susica Camp, thus giving the Tribunal information it didn't have. Approximately 8,000 individuals experienced Susica Camp, anywhere from 300 to 500 at a time. Those not subjected to torture, sexual abuse and murder nevertheless were victims of wholly inadequate food, water, hygiene and medical care, as well as witnessing crimes perpetrated on their fellow prisoners.
Unlike the case of Momir Nikolic [no relation] where another trial chamber doubted his sincerity and truthfulness, this Trial Chamber believed Dragan Nikolic, citing the following statement at his sentencing hearing as an indication of his honesty and readiness to take responsibility: “I genuinely feel shame and disgrace. [. . . ] The question arises why did I do all that? I had enough time to think about it, 11 years. But it is still hard to find an answer to that question.” He also told a psychologist that “it represented a dark side of his character which he did not know previously had existed.”
Another mitigating factor that impressed the Court was his expression of remorse. “I repent sincerely [. . . ]. I genuinely repent. I am not saying this pro forma, this repentance and contrition comes from deep inside me, because I knew most of those people from the earliest stage. [. . . ] I want to avail myself of this opportunity to say to all of those whom I hurt, either directly or indirectly, that I apologise to everyone who spent any time in Susica, be it a month or several months. . . .”
The Court asserted that punishment has a limited role in promoting reconciliation, quoting a survivor witness: “There is no penalty, no punishment bad enough to make up for the death of a single child, for the rape of a single girl, let alone all the things that actually happened.” Turning to the statement of another victim witness, however, the Court concluded that admission of guilt and responsibility contributes to reconciliation: “I would like to say to that [sic] in Vlasenica [there] are still another 50 Dragan Nikolic that have to admit their guilt of what happened there. They have to surrender and take responsibility of what they did to us. A sincere reconciliation is not possible as long as they are pretending that nothing happened. Dragan Nikolic know[s] personally every single one of those who committed the crimes.'
Even more persuasively, the Trial Chamber recounted a dramatic incident that occurred during Nikolic’s sentencing hearing, when Habiba Hadzic turned to him and asked if he knew what happened to her two sons whom she had last seen at Susica Camp 11 years before. After conferring with his lawyer, he told her about their deaths. He said he had wanted to give her and others this information even earlier, but “circumstances were not favourable.” The Court concluded, “The Trial Chamber considers this fact as an attempt to achieve reconciliation by the Accused and his readiness and willingness to contribute to the truth-finding mission of the Tribunal.'
The fourth factor the Court considered of particular importance for mitigation was the extent of Nikolic’s cooperation with the Prosecution. In part, the Prosecution advised the Court that “The Accused provided detailed and extensive information about crimes and perpetrators in his municipality, as well as their relationship to leadership figures and objectives. Such information is not typically accessible except through a participant in the process and the Accused’s testimony is expected to be of unique and considerable value in future cases.” While the Court found it difficult to judge the degree of his cooperation from a partial review of ten days of Prosecution interviews with Nikolic, it accepted the Prosecution”s submission. In addition, it noted again that Nikolic”s information is the first the Tribunal has had about Susica Camp.
Finally, the Trial Camber considered the parties’ submissions about Dragan Nikolic's character. Before the war, according to his Defence Counsel, Nikolic was “an ordinary man leading an ordinary life.” His friends were Serb and Muslim. He was well liked. The frightening face of evil is apparent in these simple sentences: It is ordinary. It is part of the human condition. It is something that lies dormant in everyone, awaiting a particular circumstance and individual choice.
In rejecting the Prosecution’s recommendation for a 15 year prison sentence, the Trial Chamber properly balanced “the gravity of the crimes and aggravating factors against the mitigating factors,” while considering the goals of sentencing. It concluded, “The brutality, the number of crimes committed and the underlying intention to humiliate and degrade would render a sentence such as that recommended unjust. The Trial Chamber believes that it is not only reasonable and responsible, but also necessary in the interests of the victims, their relatives and the international community, to impose a higher sentence than the one recommended by the Parties.” Because of the practice (in states where the Accused is likely to serve his sentence) of reducing a sentence by a third for good behavior in prison, the Court imposed a sentence of 23 years to assure the Accused would spend at least 15 years behind bars.
The Trial Chamber’s sentencing judgment in the case of Dragan Nikolic provides a model for sentence determination other chambers could follow. The Chamber carefully considered the law, sentencing practices in national courts, and the rationale behind sentencing at the Tribunal. It judiciously balanced the identified interests – of the victims, survivors and the larger community for recognition of the gravity of the offenses, of the Accused and potential accuseds in rehabilitation and recompense, and of the peoples of the former Yugoslavia in the essential part of reconciliation, the establishment of truth.
While a second trial chamber judgment exceeding the prosecution's recommendation on sentence would appear to call the future of plea agreements into question, this one demonstrates that they are very much alive and must be seriously considered by defence counsel in future cases. In this case, if Nikolic had been found guilty of the same crimes after a full trial, he would in all likelihood have received a life sentence. The Court stated that the crimes he committed, together with the aggravating circumstances, led them to the finding that 'no other punishment could be imposed except a sentence of imprisonment for a term up to and including the remainder of the Accused's life.' It is highly unlikely that any of the mitigating factors the Court considered to warrant a 'substantial reduction' in sentence would have existed after a trial and without the plea agreement.
To summarize, the four major factors the Court held mitigated Nikolic's sentence were: the guilty plea, expression of remorse, contribution to reconciliation and disclosure of additional material to the Prosecution. For Nikolic, the difference between accepting responsibility and working with the Prosecution under the terms of a plea agreement and putting the Prosecution to its proof at trial is the difference between spending the rest of his life in prison and being able to live a significant number of years with his family as a free man (where, it is hoped, he will fulfil his promise to continue efforts at establishing truth and contributing to reconciliation).
In no way should this be interpreted as suggesting that accused forego their right to a fair trial and to have crimes alleged proven beyond a reasonable doubt. The right is fundamental to a fair system of justice. Guilty pleas are also part of a fair system of justice, and defendants may find it is in their interests to confess their crimes and forego a trial for a variety of reasons. A plea agreement is a tool that can assist them in doing so, though it is not necessary for an accused to plead guilty. A plea of guilty can also assist victims/survivors, the larger community and the public interest.
As the Trial Chamber recognized in the Nikolic judgment, plea agreements at the ICTY differ from those used in national courts in that by pleading guilty an accused 'contributes to establishing the truth about the conflict in the former Yugoslavia and contributes to reconciliation in the affected communities' in a land still burdened by denial and mutual accusations. A plea agreement can save victims from retraumatization that might occur as a result of remembering and testifying about the horrors they experienced. And it may provide those who have committed horrible crimes a way back to the human community from which their acts have removed them.
Though the Trial Chamber imposed a greater sentence on Dragan Nikolic than that recommended by the Prosecution it is a fair sentence. If he can acknowledge that, he may have made another contribution to reconciliation.
