Surprise Sentence for Srebrenica Officer

When Momir Nikolic appeared at the Hague tribunal to be sentenced this week, the former Bosnian Serb army officer who admitted to helping organise the killing of 7,000 Muslim men and boys from Srebrenica in 1995 expected to be given a jail term of 15 to 20 years.

This, after all, was what the prosecution had requested in return for his guilty plea and his agreement to testify against his fellow army officers.

But Nikolic was to find out that his plea agreement was no guarantee of a lesser punishment. For the first time in the tribunal's history, the judges ignored the prosecution's recommendation, and sentenced Nikolic to 27 years.

The sentence passed on December 2 came as a shock not only to the accused and his defence, but also to the prosecution and court observers.

It is likely to make the already controversial process of negotiating plea agreements even more complex, and could even jeopardise the prosecution's ability to negotiate them altogether.

Although the judges said they took into consideration the fact that Nikolic expressed remorse for what he had done and cooperated with the prosecution by testifying against his fellow army officers, the trial chamber concluded that the sentence recommended by the prosecution was not severe enough given the magnitude and scale of the crimes Nikolic committed in Srebrenica.

"The mass murder or forcible transfer of the Muslim population from this part of eastern Bosnia in slightly over one week was committed with a level of brutality and depravity not seen previously in the conflict in the former Yugoslavia, which had already cost too many their lives," presiding judge Liu Daqun of China said during the hearing.

Liu took the view that Nikolic was not "simply following orders", but took an "active role in furthering the commission of the crime".

Nikolic was indicted in March 2002 along with three other Bosnian Serb army officers and charged with genocide, extermination, persecution on political, racial and religious grounds, murder and inhumane acts. He was arrested by international troops of the Stabilisation Force in Bosnia and Herzegovina, SFOR, shortly afterwards.

He initially pleaded not guilty to all counts, but on May 6, the day his trial was due to begin, he changed his plea. In exchange for an admission of guilt on some of the charges and an agreement to testify against his fellow officers, the prosecution agreed to drop the most serious charges, including genocide, and recommend a sentence of only 15-20 years.

Nikolic's guilty plea was a watershed at the tribunal, marking the first time a senior officer in the Bosnian Serb army admitted not only that the Srebrenica massacre happened, but that it was planned and executed from the highest levels. The prosecution believed that Nikolic's confession to helping orchestrate the worst massacre in Europe since the Second World War would help ease the atmosphere of denial that still grips the Serb part of Bosnia.

But it was problematic from the outset.

First, Nikolic's plea was dogged by a lack of familiarity with the application of plea agreements. Although they are routine in the common-law legal systems of the United States and Britain, they are not used in continental Europe, nor in most other legal systems. When the tribunal first began hearing war crimes cases, there was no provision in its rules for such agreements.

Recognising that they would be useful in establishing guilt, fostering reconciliation, and saving tribunal resources by avoiding the need for a trial - a particularly appealing aspect given the mounting caseload - the tribunal incorporated plea agreements into its rules of procedure in 2000.

However, none of the three judges in the trial chamber hearing Nikolic's case - Daqun, Volodymyr Vassylenko of Ukraine, and Carmen Maria Argibay of Argentina - was accustomed to the use of these agreements and initially refused to accept Nikolic's plea. Only after reviewing the rules of the tribunal, and ensuring that Nikolic understood that he was waiving his right to a trial, did the judges accept the plea.

Nikolic's plea agreement also infuriated victims' groups, who claimed that dropping the most serious charges in exchange for his confession made a mockery of justice.

"We are disappointed by this deal," said Munira Subasic, chairwoman of the Mothers of the Srebrenica and Zepa enclaves at the time. "The Hague tribunal should not have a green light to bargain over such things as genocide."

Nonetheless, the usefulness of plea agreements was demonstrated when Nikolic cooperated with the prosecution, testifying not only against the fellow officers indicted with him - Vidoje Blagojevic, Dragan Obrenovic and Dragan Jokic - but also against General Radislav Krstic, who is appealing against his conviction for genocide.

During his testimony, Nikolic appeared to express genuine remorse, often breaking down in tears as he recounted the meticulous planning behind the Srebrenica massacre. In doing so, he provided the court with more information than was stipulated in his plea agreement, including the whereabouts of previously unknown mass grave sites.

However, it emerged during his testimony that - for reasons that remain unclear - Nikolic had been overzealous in his will to confess, and that he claimed to be present at one massacre site when in fact he was not there. In the course of formulating the plea agreement, the prosecution identified and excised this erroneous information, and the plea document that was agreed in May did not contain it.

During the trial of Jokic and Blagojevic, defence lawyer Michael Kavanas put it to Nikolic - appearing as a prosecution witness - that his previous record of lying cast doubt on the testimony he was now giving.

The sentence handed down to Nikolic trial suggests that the judges in this case shared some of the reservations that victims' groups had expressed about plea agreements. In addition to disregarding the prosecution's recommendation and issuing a much harsher sentence, the judges questioned the practice of accepting such deals.

"The trial chamber finds it necessary to examine the question of whether plea agreements are appropriate in cases involving serious violations of international humanitarian law brought before this tribunal," they concluded in their judgement. "Once a charge of genocide has been confirmed, it should not simply be bargained away."

The judges acknowledged that plea agreements could further the work of the tribunal, but cautioned, "The use of plea agreements should proceed with caution, and such agreements should be used only when doing so would satisfy the interests of justice."

They added that while guilty pleas could save the court time and resources, "This consideration should not be the main reason for promoting guilty pleas through plea agreements."

Several tribunal officials expressed concern that the judgment would seriously impede their ability to negotiate future plea agreements.

"One could question what incentive an accused would have to negotiate a plea agreement, if the trial chamber is prepared to ignore it," said one official.

Legal experts in the United States characterised the ruling as catastrophic. "It is an extremely unorthodox thing to do," said Nicole Barrett, an American lawyer who has written widely on international law. "A decision like this in the United States would undermine the entire plea bargain system."

Nikolic's defence laywers will almost certainly appeal against the decision.

His own disappointment at the verdict was evident - soon after the judges departed the courtroom, he slumped into his chair, buried his face in his hands and cried.

The only other person likely to be as disappointed as Nikolic is his admitted partner in crime, former Bosnian Serb army officer Dragan Obrenovic. Two weeks after Nikolic confessed to his crimes and negotiated his plea agreement, Obrenovic followed suit and negotiated a similar agreement. Once again, prosecutors have recommended 15-20 years.

Obrenovic will be sentenced by the same trial chamber on December 10.

Karen Meirik is an IWPR contributor in The Hague. Stacy Sullivan is IWPR's Hague project manager.