A Measure of Justice Has Been Done: Court Sentences Stakic to Life in Prison
A Measure of Justice Has Been Done: Court Sentences Stakic to Life in Prison
A Trial Chamber of the ICTY handed down the Tribunal's first life sentence, while acquitting the Accused on charges of genocide and complicity to commit genocide. Dr. Milomir Stakic, a medical doctor and former Mayor of Prijedor municipality, was also the first political official to receive a heavy sentence. He was found guilty and sentenced for the significant leadership role he played in ethnically cleansing Prijedor of its non-Serb population, including establishment and operation of the infamous detention camps of Omarska, Keraterm and Trnopolje in which thousands of people were tortured, starved to death and murdered.
While acquitting Dr. Stakic on genocide charges, the Trial Chamber pointed out that its ruling should not be taken as a conclusion that genocide did not occur in Prijedor. Proving that an individual is responsible for genocide is difficult in light of the requirement to establish that the person acted with a specific intent to destroy all or part of a national, ethnic, racial or religious group. To date, only General Radislav Krstic has been convicted of genocide by the Tribunal. His conviction is on appeal.
Addressing this issue, the Trial Chamber wrote, “The Trial Chamber wishes to stress in this context that on both the international and national levels the imposition of the maximum sanction is not restricted to the most serious imaginable criminal conduct.” In other words, a life sentence is justifiable for those who organize the conditions for mass murder, torture and deportation, as well as for those who commit genocide. The Chamber also noted that “in a number of countries the killing of only one person results in a mandatory life sentence. . . .”
Though convicted of genocide, Krstic did not receive a life sentence. The Prosecution has appealed this claiming it is 'manifestly inadequate.' Nevertheless, even if Krstic is released after having served two-thirds of his 46 year sentence (standard practice in most European states), he will have served 30 years. The Stakic sentence allows the possibility that Dr. Stakic could be released after 20 years in prison (when he is 59) if he meets certain conditions. They include possibilities of reoffending; his conduct while in prison; his personality, previous history and the circumstances of his acts; his living conditions, and the effects which can be expected as a result of his early release. The reviewing court also has authority to set any term of probation. This unique aspect of Stakic’s sentence reflects modern practice in Argentina and Germany, the states of origin of two of the three-judge panel, Judge Carmen Maria Argibay and Judge Wolfgang Schomburg.
In handing down the Tribunal’s first life sentence, Judges Schomburg, Argibay and Volodymyr Vassylenko (from Ukraine) noted that only general principles exist to guide sentencing in the Tribunal. “The decision has been left to the discretion of the Trial Chamber in each case. . . .” Guidance from decisions of other Trial Chambers, the judges concluded, “is extremely limited.” The result has been a wide discrepancy in sentences, with no apparent rhyme or reason. The Stakic Trial Chamber was thorough in giving its reasons for Dr. Stakic’s life sentence.
The Chamber found that “the case against Dr. Stakic is a unique one,” which cannot be compared to any other case before the Tribunal. It rejected the defense proposal that Dr. Stakic’s sentence should be in line with the five to nine year sentences of camp commanders Prcac, Kvocka, Krnojelac and Mucic. Both his superior position and the scale of crimes for which he was found guilty “place his criminal responsibility on a different level,” the Chamber concluded. Nor did it consider the lenient sentences of other politicians a proper measure, since both had pled guilty. Biljana Plavsic and Steven Todorovic received eleven and ten year sentences respectively.
In addressing the legal principle of equality before the law, the Chamber did not confine itself to a consideration of previous sentences in the ICTY or ICTR (Rwanda Tribunal). It looked to others who might find themselves in similar situations to Stakic in the future. Politicians who are faced with implementing criminal policies in the future should consider that they may well spend the rest of their lives in prison if they do so. As the Chamber wrote, 'When Dr. Stakic acted, he almost certainly never believed he would one day stand trial, be convicted and sentenced. In cases such as this one, dealing with the head of a municipality, general deterrence becomes substantially relevant.'
'An equally important goal [of sentencing] is retribution, not to fulfil a desire for revenge but to express the outrage of the international community at heinous crimes like those before this Tribunal.' One need only recall the photographic images of skeletal prisoners in these camps and the international outrage it provoked to support a severe sentence under the goal of retributive justice. While not convicted of genocide, Dr. Stakic was found guilty on three counts of the indictment: 1) extermination, a crime against humanity, 2) murder, a violation of the laws and customs of war, and 3) persecutions, incorporating murder and deportation, all crimes against humanity. The Trial Chamber summarized its view of the crimes as follows.
'The Trial Chamber regards the acts of persecutions and extermination as the heart of the criminal conduct of Dr. Stakic. Persecutions constitutes inherently a very grave crime because of its distinctive feature of discriminatory intent. All the constitutive acts of the persecutorial campaign are serious in themselves and the Trial Chamber has taken into account their scale and cumulative effect within the Municipality of Prijedor where more than 1,500 people were killed and tens of thousands deported.'
The Chamber made specific mention of the 'tragic extent of the harm and suffering caused to the victims. . . .' To avoid the depersonalization inherent in describing crimes with large numbers of victims, the Chamber highlighted the experiences of three individuals. One was a 17 year old Bosnian Muslim named Nermin Karagic. After his village was cleansed, he set out for 'free territory' with approximately 300 others. He and his father were among 117 people captured and held in various detention sites where they were beaten, starved and abused. Many were taken out and shot. At the Ljubija stadium, Mr. Karagic could hear his father being beaten. Later, he was forced to carry the headless body of a man wearing his father's blue pullover. The Chamber considered that the young man's denial was caused from his trauma. 'Although he knew that one of the bodies he carried was his father's, he did not want to realize this ('he might have lent [his pullover] to someone').'
Mr. Karagic lost seven relatives besides his father. The Chamber recognized that this young survivor quite naturally continued to suffer the trauma of his experiences ten years later. 'He was subjected to torture, serious physical violence, mistreatment, imprisonment, beatings and was hunted like a wild animal when he managed to escape. . . . He was subjected to degrading and humiliating acts and saw several people being killed.' The judges noted his vulnerability: 'Nermin Karagic was merely a teen-ager in 1992. He was a simple peasant boy working and living with his family who never imagined that he was to go through such an ordeal. His suffering marked him badly.'
By personalizing the crimes, the Chamber meant to show the gravity of the crimes and their consequences in human terms. Those who make political decisions are often insulated from the results of those decisions. For many, it has less emotional content than moving pawns around a chessboard. As the Chamber wrote, 'He [Mr. Karagic] never met Dr. Stakic and Dr. Stakic probably never heard about him until his appearance at trial. . . . As one of the co-perpetrators of that policy aiming at achieving a 'pure Serb' municipality, Dr. Stakic must be held accountable for Nermin Karagic's tragic fate.'
Finding it not necessary to apply the 'joint criminal enterprise' theory of criminal responsibility, the Chamber held Dr. Stakic responsible as part of a 'co-perpetratorship.' Other co-perpetrators included the Prijedor Assembly, the Crisis Staff, the Territorial Defense, the police and the military. In the summary of its 255 page opinion, the
Court noted that 'No participant could have achieved the common goal [of ethnically cleansing Prijedor] on his own. However, each participant could individually have frustrated the plan by refusing to play his part or by reporting crimes.' Among the co-perpetrators, however, the Court found, 'Dr. Stakic played a unique pivotal role. . .' in coordinating police, military and governmental authorities. Without the essential contribution of the Accused and other politicians, '[s]uch a wide-scale, complex and brutal persecutory campaign could never have been achieved. . . .'
Having outlined the applicable law and considered the individual circumstances of the Accused, the Trial Chamber went on to address aggravating and mitigating circumstances as required by the ICTY rules. It found the primary aggravating factor to be Dr. Stakic's superior position. 'The Trial Chamber notes that, as with white collar crimes, the perpetrator behind the direct perpetrator -- the perpetrator in white gloves -- might deserve a higher penalty than the one who physically participated, depending on the particular circumstances of the case.' In this case, Stakic was a person 'of the greatest authority' who was responsible for 'planning and ordering, in addition to committing, the crime of deportation' which included the establishment of the brutal Omarska, Keraterm and Trnopolje camps. He was also a medical doctor who had grievously violated his oath to save lives not take them. More significant, in the Court's view, was Dr. Stakic's mercilessness in response to his colleagues' specific pleas for his help. Despite his authority, he refused to wield it on their behalves -- to secure a certificate, to learn the fate of a husband who was Stakic's predecessor as mayor. However, the Court also noted that the absence of remorse can never be an aggravating factor.
The mitigating factors were not many. The Chamber cited Stakic's acquiescence in substitution of a judge after the trial began, his concern for the trauma of certain witnesses, leading him to direct his counsel to forego cross examination, his young age at the time of the crimes and the fact that he is married and has two young children. The Court, however, concluded that 'the mitigating factors do not carry enough weight to alter substantially the deserved sentence.'
As legally required, the Chamber also considered testimony, including from some prosecution witnesses, that Dr. Stakic had a 'moderate stance and stable, quiet and self-confident nature.' 'His public speeches were not seen as nationalistic or prejudiced.' The Court was not overly impressed, finding that 'there is vibrant evidence of his real intentions and feelings when he spoke, for example, about 'the Muslims who were created artificially.''
At its core, the Trial Chamber's sentence reflects the gravity of the crimes and the high and authoritative position of Dr. Stakic. This is as it should be. Politicians who devise criminal policies rarely carry out the actual killings, tortures and rapes those policies call for. Yet the scope and breadth of such crimes would never occur without their consent, and, in this case, their explicit direction.
With few guidelines for devising a just sentence, Judges Schomburg, Argibay and Vassylenko have set a standard for other chambers to follow. It is well-reasoned and based on the highest ethical principles. To the victims, it embodies humanity's outrage at the horrors perpetrated against them by fellow human beings. To the perpetrators, it is a measure of the gravity of their crimes. To would be perpetrators in high office, it is a warning that having someone else do their dirty work will make them more, not less culpable. To the larger world community, it is a statement that a measure of justice has been done.
While acquitting Dr. Stakic on genocide charges, the Trial Chamber pointed out that its ruling should not be taken as a conclusion that genocide did not occur in Prijedor. Proving that an individual is responsible for genocide is difficult in light of the requirement to establish that the person acted with a specific intent to destroy all or part of a national, ethnic, racial or religious group. To date, only General Radislav Krstic has been convicted of genocide by the Tribunal. His conviction is on appeal.
Addressing this issue, the Trial Chamber wrote, “The Trial Chamber wishes to stress in this context that on both the international and national levels the imposition of the maximum sanction is not restricted to the most serious imaginable criminal conduct.” In other words, a life sentence is justifiable for those who organize the conditions for mass murder, torture and deportation, as well as for those who commit genocide. The Chamber also noted that “in a number of countries the killing of only one person results in a mandatory life sentence. . . .”
Though convicted of genocide, Krstic did not receive a life sentence. The Prosecution has appealed this claiming it is 'manifestly inadequate.' Nevertheless, even if Krstic is released after having served two-thirds of his 46 year sentence (standard practice in most European states), he will have served 30 years. The Stakic sentence allows the possibility that Dr. Stakic could be released after 20 years in prison (when he is 59) if he meets certain conditions. They include possibilities of reoffending; his conduct while in prison; his personality, previous history and the circumstances of his acts; his living conditions, and the effects which can be expected as a result of his early release. The reviewing court also has authority to set any term of probation. This unique aspect of Stakic’s sentence reflects modern practice in Argentina and Germany, the states of origin of two of the three-judge panel, Judge Carmen Maria Argibay and Judge Wolfgang Schomburg.
In handing down the Tribunal’s first life sentence, Judges Schomburg, Argibay and Volodymyr Vassylenko (from Ukraine) noted that only general principles exist to guide sentencing in the Tribunal. “The decision has been left to the discretion of the Trial Chamber in each case. . . .” Guidance from decisions of other Trial Chambers, the judges concluded, “is extremely limited.” The result has been a wide discrepancy in sentences, with no apparent rhyme or reason. The Stakic Trial Chamber was thorough in giving its reasons for Dr. Stakic’s life sentence.
The Chamber found that “the case against Dr. Stakic is a unique one,” which cannot be compared to any other case before the Tribunal. It rejected the defense proposal that Dr. Stakic’s sentence should be in line with the five to nine year sentences of camp commanders Prcac, Kvocka, Krnojelac and Mucic. Both his superior position and the scale of crimes for which he was found guilty “place his criminal responsibility on a different level,” the Chamber concluded. Nor did it consider the lenient sentences of other politicians a proper measure, since both had pled guilty. Biljana Plavsic and Steven Todorovic received eleven and ten year sentences respectively.
In addressing the legal principle of equality before the law, the Chamber did not confine itself to a consideration of previous sentences in the ICTY or ICTR (Rwanda Tribunal). It looked to others who might find themselves in similar situations to Stakic in the future. Politicians who are faced with implementing criminal policies in the future should consider that they may well spend the rest of their lives in prison if they do so. As the Chamber wrote, 'When Dr. Stakic acted, he almost certainly never believed he would one day stand trial, be convicted and sentenced. In cases such as this one, dealing with the head of a municipality, general deterrence becomes substantially relevant.'
'An equally important goal [of sentencing] is retribution, not to fulfil a desire for revenge but to express the outrage of the international community at heinous crimes like those before this Tribunal.' One need only recall the photographic images of skeletal prisoners in these camps and the international outrage it provoked to support a severe sentence under the goal of retributive justice. While not convicted of genocide, Dr. Stakic was found guilty on three counts of the indictment: 1) extermination, a crime against humanity, 2) murder, a violation of the laws and customs of war, and 3) persecutions, incorporating murder and deportation, all crimes against humanity. The Trial Chamber summarized its view of the crimes as follows.
'The Trial Chamber regards the acts of persecutions and extermination as the heart of the criminal conduct of Dr. Stakic. Persecutions constitutes inherently a very grave crime because of its distinctive feature of discriminatory intent. All the constitutive acts of the persecutorial campaign are serious in themselves and the Trial Chamber has taken into account their scale and cumulative effect within the Municipality of Prijedor where more than 1,500 people were killed and tens of thousands deported.'
The Chamber made specific mention of the 'tragic extent of the harm and suffering caused to the victims. . . .' To avoid the depersonalization inherent in describing crimes with large numbers of victims, the Chamber highlighted the experiences of three individuals. One was a 17 year old Bosnian Muslim named Nermin Karagic. After his village was cleansed, he set out for 'free territory' with approximately 300 others. He and his father were among 117 people captured and held in various detention sites where they were beaten, starved and abused. Many were taken out and shot. At the Ljubija stadium, Mr. Karagic could hear his father being beaten. Later, he was forced to carry the headless body of a man wearing his father's blue pullover. The Chamber considered that the young man's denial was caused from his trauma. 'Although he knew that one of the bodies he carried was his father's, he did not want to realize this ('he might have lent [his pullover] to someone').'
Mr. Karagic lost seven relatives besides his father. The Chamber recognized that this young survivor quite naturally continued to suffer the trauma of his experiences ten years later. 'He was subjected to torture, serious physical violence, mistreatment, imprisonment, beatings and was hunted like a wild animal when he managed to escape. . . . He was subjected to degrading and humiliating acts and saw several people being killed.' The judges noted his vulnerability: 'Nermin Karagic was merely a teen-ager in 1992. He was a simple peasant boy working and living with his family who never imagined that he was to go through such an ordeal. His suffering marked him badly.'
By personalizing the crimes, the Chamber meant to show the gravity of the crimes and their consequences in human terms. Those who make political decisions are often insulated from the results of those decisions. For many, it has less emotional content than moving pawns around a chessboard. As the Chamber wrote, 'He [Mr. Karagic] never met Dr. Stakic and Dr. Stakic probably never heard about him until his appearance at trial. . . . As one of the co-perpetrators of that policy aiming at achieving a 'pure Serb' municipality, Dr. Stakic must be held accountable for Nermin Karagic's tragic fate.'
Finding it not necessary to apply the 'joint criminal enterprise' theory of criminal responsibility, the Chamber held Dr. Stakic responsible as part of a 'co-perpetratorship.' Other co-perpetrators included the Prijedor Assembly, the Crisis Staff, the Territorial Defense, the police and the military. In the summary of its 255 page opinion, the
Court noted that 'No participant could have achieved the common goal [of ethnically cleansing Prijedor] on his own. However, each participant could individually have frustrated the plan by refusing to play his part or by reporting crimes.' Among the co-perpetrators, however, the Court found, 'Dr. Stakic played a unique pivotal role. . .' in coordinating police, military and governmental authorities. Without the essential contribution of the Accused and other politicians, '[s]uch a wide-scale, complex and brutal persecutory campaign could never have been achieved. . . .'
Having outlined the applicable law and considered the individual circumstances of the Accused, the Trial Chamber went on to address aggravating and mitigating circumstances as required by the ICTY rules. It found the primary aggravating factor to be Dr. Stakic's superior position. 'The Trial Chamber notes that, as with white collar crimes, the perpetrator behind the direct perpetrator -- the perpetrator in white gloves -- might deserve a higher penalty than the one who physically participated, depending on the particular circumstances of the case.' In this case, Stakic was a person 'of the greatest authority' who was responsible for 'planning and ordering, in addition to committing, the crime of deportation' which included the establishment of the brutal Omarska, Keraterm and Trnopolje camps. He was also a medical doctor who had grievously violated his oath to save lives not take them. More significant, in the Court's view, was Dr. Stakic's mercilessness in response to his colleagues' specific pleas for his help. Despite his authority, he refused to wield it on their behalves -- to secure a certificate, to learn the fate of a husband who was Stakic's predecessor as mayor. However, the Court also noted that the absence of remorse can never be an aggravating factor.
The mitigating factors were not many. The Chamber cited Stakic's acquiescence in substitution of a judge after the trial began, his concern for the trauma of certain witnesses, leading him to direct his counsel to forego cross examination, his young age at the time of the crimes and the fact that he is married and has two young children. The Court, however, concluded that 'the mitigating factors do not carry enough weight to alter substantially the deserved sentence.'
As legally required, the Chamber also considered testimony, including from some prosecution witnesses, that Dr. Stakic had a 'moderate stance and stable, quiet and self-confident nature.' 'His public speeches were not seen as nationalistic or prejudiced.' The Court was not overly impressed, finding that 'there is vibrant evidence of his real intentions and feelings when he spoke, for example, about 'the Muslims who were created artificially.''
At its core, the Trial Chamber's sentence reflects the gravity of the crimes and the high and authoritative position of Dr. Stakic. This is as it should be. Politicians who devise criminal policies rarely carry out the actual killings, tortures and rapes those policies call for. Yet the scope and breadth of such crimes would never occur without their consent, and, in this case, their explicit direction.
With few guidelines for devising a just sentence, Judges Schomburg, Argibay and Vassylenko have set a standard for other chambers to follow. It is well-reasoned and based on the highest ethical principles. To the victims, it embodies humanity's outrage at the horrors perpetrated against them by fellow human beings. To the perpetrators, it is a measure of the gravity of their crimes. To would be perpetrators in high office, it is a warning that having someone else do their dirty work will make them more, not less culpable. To the larger world community, it is a statement that a measure of justice has been done.
