ANALYSIS: Hague Promotes Plea Agreements

Judges made tribunal history last week by offering seven defendants indicted on war crimes in Mostar, Bosanski Samac and Visegrad the opportunity to change their not guilty pleas. The move, at the start of their trial, was aimed at saving the court time and expense. The accused, meanwhile, stood to benefit by earning more lenient sentences. In the end, the defendants refused to take up the offer.

The judicial tactic appears to have been prompted by a new "vogue" at The Hague, according to which the defendant concludes a plea agreement with the prosecution, admitting to guilt for part of the indictment in return for a lesser sentence, at the end of the trial.

Dragan Kolundzija, one of the three charged in the Keraterm camp trial, set the trend. On September 4, on the eve of the presentation of evidence by his defence team, Kolundzija entered a guilty plea to one count of persecution as a crime against humanity. This was part of a plea agreement with the prosecution.

The court accepted the plea. In return, the prosecution agreed to drop the other four counts against Kolundzija and recommended a sentence of between three and five years.

On accepting the agreement, the judges scheduled a sentencing hearing for Kolundzija, simultaneously setting a date for the prosecution and defence to present their closing arguments in the cases of the remaining two accused of crimes at Keraterm: Dusko Sikirica and Damir Dosen.

But on Wednesday, September 19, instead of closing arguments, the prosecution and defence will present the court new joint submissions with regard to Sikirica and Dosen.

In these submissions, the accused will enter a guilty plea to count 3 of the indictment, namely persecution tantamount to a crime against humanity. Following the court's acceptance of this guilty plea, the prosecution will withdraw other outstanding counts against both the accused men.

In addition, the prosecutor will recommend that the trial chamber impose a sentence of not less than 10 and not more than 17 years for Sikirica, and not less than five and not more than seven years for Dosen. The differences in the agreed ranges of sentences reflect the different roles the defendants are said to have played in the camp and the alleged crimes.

This, despite the fact that both men, like Kolundzija before them, had pleaded guilty to persecution. Sikirica's admission included presiding over generally inhumane conditions at the camp and overseeing - an on occasions taking part in - the killing and torture of detainees, which as a head of the camp security he neither prevented nor punished.

Unlike Sikirica, it is acknowledged that Kolundzija and Dosen in some situations attempted to protect detainees from abuse by drunken soldiers, civilians visiting the camp, or sadistic guards, such as Duca Knezevic and the twin brothers Nenad and Predrag Banovic, who are also accused but still at large.

In the statements they enclosed for their joint submission, Sikirica and Dosen say they are making their admissions voluntarily and are aware the court is not bound by recommended sentences and could even pronounce heavier ones, including life.

They clearly decided that the risk was acceptable and was preferable to uncertainty over how the judges would otherwise assess the presented evidence and evaluate their responsibility on each of the counts of the indictment.

The joint submission also contains an important incentive for the judges. This comes in the form of an agreement by the prosecutor and the accused not to appeal against any sentences imposed by the court if they fall within the ranges agreed by the parties, that is 10 to 17 years for Sikirica, and five to seven years for Dosen.

As a result, the court is guaranteed to save time and expense in the appeals process, which can last for years.

Another advantage is that three cells at the UN detention unit will be freed much faster, after those sentenced are dispatched to serve their sentences in a jail belonging to one of the UN member states that have placed their prison facilities at the tribunal's disposal.

The question arises over what is the prosecution's interest in accepting such belated admissions of guilt. In this case, it stands to gain a guilty sentence and admissions from the accused that they took part in the persecution of the non-Serb population of Prijedor on political, racial and religious grounds; that there were inhumane conditions in Keraterm; and that detainees were subjected to terror, killings, torture and other forms of abuse.

These admissions ease the prosecutor's burden of proof over those same charges in the forthcoming trial of Radoslav Brdjanin and general Momir Talic; the Prijedor camps, including Keraterm, play a central role in their indictment for genocide in Bosnian Krajina.

The establishment of these camps and the conditions in them over the summer of 1992 are also significant issues in the indictment lodged against the so-called "gang of four" in Pale, comprising the political and military leaders of Bosnian Serbs: Momcilo Krajisnik,Biljana Plavsic, Radovan Karadzic and Ratko Mladic.

Although the possibility is not mentioned in the plea agreements, it has not been ruled out that all or some of the three "penitents" from Keraterm might appear as prosecution witnesses in the trial of their former commanders.

The new "vogue" for plea agreements at The Hague offers something for everyone: it offers the accused the chance of reduced sentences; it saves the judges' time and tribunal funds, which would otherwise have to be invested in appeals. Lastly, it provides the prosecutors with admissions of key facts that they can then deploy in future, more difficult trials. For everyone at the tribunal, starting with the trial chambers, through the Office of the Prosecutor to the Registry and the Detention Unit, it clears the field for the big challenges that lie ahead.

Mirko Klarin is IWPR senior editor for the war crimes tribunal and editor-in-chief of SENSE News Agency.