Trial Chamber Views Plea Agreements With Caution
Day 264
Trial Chamber Views Plea Agreements With Caution
Day 264
Trial Chamber I asserted the authority of the Tribunal's judicial branch when it rejected the Prosecution's recommendation of a 15 to 20 year sentence for Momir Nikolic and sentenced him to 27 years for his part in the mass killings of 7,000 Muslim men and boys in Srebrenica and the ethnic cleansing of 30,000 Bosnian Muslims from the enclave. Nikolic pled guilty to one count of persecutions, a crime against humanity, as part of a plea agreement with the Prosecution, which included his willingness to testify in other relevant proceedings and provide extensive information about Srebrenica and other crimes. In exchange, the Prosecutor dropped four other charges, including genocide and complicity to commit genocide and agreed to recommend the 15 to 20 year sentence.
The Chamber's judgment came as a surprise to prosecutors, defence lawyers, the Accused and long time trial observers. It is the first time a trial chamber has exceeded the Office of the Prosecutor's (OTP) sentencing recommendation. More surprising, the Chamber did so in a case where prosecution and defence had reached a plea agreement. While the Chamber was careful throughout the proceedings to reiterate to the parties that it was not bound by any sentencing recommendation, and ICTY rules specifically so state, practice at the Tribunal led to an expectation that the Chamber would generally stay within the prosecutor's recommended limits.
The Chamber took pains to address the general issue of plea agreements, which have only recently been recognized in ICTY rules. In its judgment, the Court concluded, '[T]he 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. [emphasis in the original]' While practices in national courts may provide some guidance, the Chamber pointed out that the Tribunal is a decidedly different institution, with a different mandate. 'The crimes falling within the jurisdiction of this Tribunal are fundamentally different from crimes prosecuted nationally,' the Court said, pointing out that 'Once a charge of genocide has been confirmed, it should not simply be bargained away.' Use of plea agreements to improve court efficiency by reducing the number of cases tried is inappropriate, the Chamber asserted.
The Chamber then reviewed the purpose of the Tribunal to determine whether plea agreements are compatible. In many cases, a public trial meets certain goals that a plea agreement cannot. For example, the Chamber stated, it provides a more complete historical record and provides victims an opportunity to be heard publicly. The Chamber expressed concerns about plea agreements, as well, such as the potential for unfairness in the prosecution's selection of which accused it will make an agreement with and the potential for dropping charges that result in a less than complete record and accounting for what the accused did.
On the other hand, the Chamber acknowledged that plea agreements have benefits which can promote the goals of the Tribunal. They promote the legitimacy of the Tribunal because they make guilt of an accused unassailable by those who claim the Tribunal is biased and its judgments 'based on weak or even false evidence.' They 'can substantially assist in its [Prosecution's] investigations and presentation of evidence at trials of other accused. . . .' '[A] guilty plea may be more meaningful and significant than a finding of guilt by a trial chamber to the victims and survivors.' An admission of guilt together with a sincere expression of remorse may create a 'significant opportunity for reconciliation. . . .'
Having explored the benefits and drawbacks of plea agreements for Tribunal jurisprudence, the Chamber concluded '[O]n balance, guilty pleas pursuant to plea agreements, may further the work – and the mandate – of the Tribunal [emphasis added].' It added a significant qualification: '[T]he use of plea agreements should proceed with caution and such agreements should be used only when doing so would satisfy the interests of justice.'
The Chamber's next step was to consider whether its earlier decision accepting the plea agreement in the Nikolic case 'satisfied the interests of justice.' It concluded that it had, citing the following considerations: the willingness of an insider to testify in other Srebrenica trials; the role an acknowledgment of the crimes may have in establishing truth, including among those who deny they happened; reducing the number of survivor witnesses who would have to testify (and relive the trauma) in yet another trial. The Chamber also deferred to the Prosecution's assessment of its case for genocide when it agreed to drop the charge as part of the agreement, and cited the Prosecution's retention of the entire factual basis of the indictment as another factor in favor of accepting the plea agreement.
While a Trial Chamber decision does not set a precedent which other trial chambers must follow, trial chambers often refer to the decisions of their sister courts for guidance. Prosecutors would be well advised to support future plea agreements with arguments that they promote the interests of justice as recognized by the Tribunal.
Trial Chamber I's judgment in the Nikolic case, however, may have a negative effect on the number of future plea agreements the Prosecutor will be able to negotiate. While one might want to believe that all accused who plead guilty do so from selfless motives, it is highly unlikely. People plead guilty for a variety of reasons: like Nikolic, to avoid having to go through the trauma of a trial; out of remorse and to help rectify a wrong they have done; to avoid the likelihood of a harsh sentence or to secure a lighter sentence than they might if found guilty at trial, among others. As in most human endeavors, motives are not often pure, but are a mix of the selfless and the selfish. Taking this into consideration, an Accused is less likely to plead guilty as part of a plea agreement when the Prosecutor's sentencing recommendation cannot be counted on.
Whether fewer plea agreements is considered a positive or negative development depends on how one views them. Those who are skeptical or opposed to them as an easy way for those guilty of horrible crimes to get off lightly or for the OTP to reduce its caseload will be pleased by the Nikolic Trial Chamber's decision. Those who see them as a useful tool in establishing truth will be less enthusiastic. The Nikolic decision is likely to be appealed (possibly by both the defense and prosecution), since it concerns important general legal issues, as well as what Mr. Nikolic and his defence team must consider a wrong sentence, if not a betrayal. The Appeals Chamber appropriately should provide some guidance on the issue of plea agreements, as well as on sentencing practice at the Tribunal, which varies so widely that it appears incoherent.
As for Momir Nikolic's 27 year sentence, one has to say that the Trial Chamber was not impressed with the Accused. Appropriately, they gave the greatest weight to the gravity of the offense. 'The crimes committed at Srebrenica were of an enormous magnitude and scale, and the gravity of these crimes is unquestionable. At least 7,000 men were separated from their families, murdered and buried in mass graves. The manner in which the executions were carried out, as described by Witness I, was both methodical and chilling in its 'efficiency' and display of utter inhumanity. Furthermore, the majority of the population of the municipality of Srebrenica was deported and made refugees. Over eight years later, the impact of the crimes committed after the fall of Srebrenica continue to be felt upon the women, children and men who survived the horrific events – many of whom continue to live as refugees due to their forcible displacement from their homes.'
Nikolic's position as Brigade Security and Intelligence Officer and his role in coordinating and directing the logistics of the ethnic cleansing and mass murder campaign were also considered significant by the Court. Nikolic was not 'simply following orders,' the judges noted. '[He] took an active role in furthering the commission of the crime.'
The Court was particularly offended by a statement in the Defence brief comparing Nikolic's role and position with that of Biljana Plavsic, former Republika Srpska Presidency member, who pled guilty a year ago and received an 11 year sentence. 'The Trial Chamber was shocked to hear the Nikolic Defence state that 'only' 7,000 men – 'only' Muslim men (as opposed to all non-Serbs) – from 'only' one municipality were murdered.' Plavsic, the Defence argued, was guilty for the deaths of 50,000 non-Serbs from 37 municipalities. The Court concluded, 'The comparison is not helpful to assess the gravity of the offence, and the use of the term 'only' in relation to the number of persons murdered is shameful.' Indeed. However, Nikolic should not be penalized for the prejudice shown by his lawyers. Moreover, the comparison of Nikolic's 27 year sentence with Plavsic's 11 year sentence (who was in a much higher position, offered no cooperation with the prosecution, provided only a tepid statement of remorse and showed little emotion when expressing it) is not inappropriate. The difference between the sentences of the two appears to lie in the different perspectives of two different trial chambers. That doesn't make for confidence in the system's fairness. (One is not arguing that the Plavsic sentence should be the standard by which all others are judged; but that there must be more transparent and objective sentencing standards.)
While the Trial Chamber refused to consider Plavsic's sentence in its deliberations, it noted a number of others in a footnote to support its contention that its sentence was not 'capricious or excessive.' Only one of the sentences was of an Accused who pled guilty, Goran Jelisic, who received a sentence of 40 years for offences other than persecutions. The sentences the Court selected ranged from 18 years to life.
The Court concluded that a sentence in the range of 20 years to life in prison was appropriate based on the gravity of the crime, Nikolic's role and participation in it and the sentencing practices of the ICTY and the former Yugoslavia. It then proceeded to consider any aggravating and mitigating circumstances.
The Trial Chamber concluded that Nikolic's position of authority and the vulnerability of the victims were aggravating factors. While it considered a number of mitigating factors, it rejected several and gave others little weight.
Though the Prosecutor advised the Court that Nikolic had fully cooperated with it, including providing new information that resulted in the identification of previously unknown mass gravesites, testifying for eight days in the Blagojevic and Jokic trial, and providing information about events in Eastern Bosnia beyond what he agreed, the Court gave it little weight. Cooperation, the Court found, rests on the credibility of the Accused – and the judges didn't find Nikolic very credible. It wasn't only that he claimed greater responsibility for crimes than he had (a matter which was corrected almost immediately). The Court found his testimony evasive in 'numerous instances' and that it was not as detailed as it could have been. '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.'
Nor was the Trial Chamber impressed by his expression of remorse and apology to the victims, their families and the Bosniak people. The Chamber referenced Nikolic's explanation of his reason for pleading guilty and for providing the Prosecution with false information (accepting guilt for crimes he did not commit), i.e. that he wanted to avoid the trauma of a trial. As a result, '[T]he Trial Chamber finds that Momir Nikolic's expression of remorse is a mitigating factor, but cannot afford substantial weight to this factor.' Where some were moved by Nikolic's expression of remorse and found his reason for wanting to avoid trial possible evidence of his remorse, the Trial Chamber clearly did not.
Other mitigating factors it considered and rejected were his comportment while in detention (it is expected of all accused) and his family circumstances, i.e. no prior convictions, a wife, two sons and a dependent mother-in-law (it can be said of many accused). In addition, they refused to make a finding that he would have voluntarily surrendered if he had known of the indictment against him (he was arrested shortly after the indictment was unsealed).
In the end, the Trial Chamber only found mitigation in the fact that Nikolic, before the war, was a respected community member who did not discriminate and in certain aspects of his guilty plea. Those aspects include: it contributes to establishing a historical record, a perpetrator's recognition of crimes can provide some closure for certain victims and thus promote reconciliation: it shows acceptance of individual criminal responsibility and spares some witnesses from testifying. The Court rejected that saving Tribunal resources by a guilty plea is a mitigating factor.
The Trial Chamber's judgment will almost certainly be appealed by the Defence, if not the Prosecution as well. Reflecting on the decision, it appears the Chamber's caution over the place of guilty pleas in Tribunal practice combined with its abhorrence of the crimes in Srebrenica, its assertion of judicial primacy over prosecutorial power and its lack of sympathy for this particular accused led to their imposition of a 27 year sentence, a sentence in excess of what the prosecution recommended. The Chamber's decision highlights the need for clear, objective sentencing standards as well as further, more explicit Tribiunal guidance on the role of plea agreements. In the meantime, plea agreements are likely to be made with considerable caution.
The Chamber's judgment came as a surprise to prosecutors, defence lawyers, the Accused and long time trial observers. It is the first time a trial chamber has exceeded the Office of the Prosecutor's (OTP) sentencing recommendation. More surprising, the Chamber did so in a case where prosecution and defence had reached a plea agreement. While the Chamber was careful throughout the proceedings to reiterate to the parties that it was not bound by any sentencing recommendation, and ICTY rules specifically so state, practice at the Tribunal led to an expectation that the Chamber would generally stay within the prosecutor's recommended limits.
The Chamber took pains to address the general issue of plea agreements, which have only recently been recognized in ICTY rules. In its judgment, the Court concluded, '[T]he 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. [emphasis in the original]' While practices in national courts may provide some guidance, the Chamber pointed out that the Tribunal is a decidedly different institution, with a different mandate. 'The crimes falling within the jurisdiction of this Tribunal are fundamentally different from crimes prosecuted nationally,' the Court said, pointing out that 'Once a charge of genocide has been confirmed, it should not simply be bargained away.' Use of plea agreements to improve court efficiency by reducing the number of cases tried is inappropriate, the Chamber asserted.
The Chamber then reviewed the purpose of the Tribunal to determine whether plea agreements are compatible. In many cases, a public trial meets certain goals that a plea agreement cannot. For example, the Chamber stated, it provides a more complete historical record and provides victims an opportunity to be heard publicly. The Chamber expressed concerns about plea agreements, as well, such as the potential for unfairness in the prosecution's selection of which accused it will make an agreement with and the potential for dropping charges that result in a less than complete record and accounting for what the accused did.
On the other hand, the Chamber acknowledged that plea agreements have benefits which can promote the goals of the Tribunal. They promote the legitimacy of the Tribunal because they make guilt of an accused unassailable by those who claim the Tribunal is biased and its judgments 'based on weak or even false evidence.' They 'can substantially assist in its [Prosecution's] investigations and presentation of evidence at trials of other accused. . . .' '[A] guilty plea may be more meaningful and significant than a finding of guilt by a trial chamber to the victims and survivors.' An admission of guilt together with a sincere expression of remorse may create a 'significant opportunity for reconciliation. . . .'
Having explored the benefits and drawbacks of plea agreements for Tribunal jurisprudence, the Chamber concluded '[O]n balance, guilty pleas pursuant to plea agreements, may further the work – and the mandate – of the Tribunal [emphasis added].' It added a significant qualification: '[T]he use of plea agreements should proceed with caution and such agreements should be used only when doing so would satisfy the interests of justice.'
The Chamber's next step was to consider whether its earlier decision accepting the plea agreement in the Nikolic case 'satisfied the interests of justice.' It concluded that it had, citing the following considerations: the willingness of an insider to testify in other Srebrenica trials; the role an acknowledgment of the crimes may have in establishing truth, including among those who deny they happened; reducing the number of survivor witnesses who would have to testify (and relive the trauma) in yet another trial. The Chamber also deferred to the Prosecution's assessment of its case for genocide when it agreed to drop the charge as part of the agreement, and cited the Prosecution's retention of the entire factual basis of the indictment as another factor in favor of accepting the plea agreement.
While a Trial Chamber decision does not set a precedent which other trial chambers must follow, trial chambers often refer to the decisions of their sister courts for guidance. Prosecutors would be well advised to support future plea agreements with arguments that they promote the interests of justice as recognized by the Tribunal.
Trial Chamber I's judgment in the Nikolic case, however, may have a negative effect on the number of future plea agreements the Prosecutor will be able to negotiate. While one might want to believe that all accused who plead guilty do so from selfless motives, it is highly unlikely. People plead guilty for a variety of reasons: like Nikolic, to avoid having to go through the trauma of a trial; out of remorse and to help rectify a wrong they have done; to avoid the likelihood of a harsh sentence or to secure a lighter sentence than they might if found guilty at trial, among others. As in most human endeavors, motives are not often pure, but are a mix of the selfless and the selfish. Taking this into consideration, an Accused is less likely to plead guilty as part of a plea agreement when the Prosecutor's sentencing recommendation cannot be counted on.
Whether fewer plea agreements is considered a positive or negative development depends on how one views them. Those who are skeptical or opposed to them as an easy way for those guilty of horrible crimes to get off lightly or for the OTP to reduce its caseload will be pleased by the Nikolic Trial Chamber's decision. Those who see them as a useful tool in establishing truth will be less enthusiastic. The Nikolic decision is likely to be appealed (possibly by both the defense and prosecution), since it concerns important general legal issues, as well as what Mr. Nikolic and his defence team must consider a wrong sentence, if not a betrayal. The Appeals Chamber appropriately should provide some guidance on the issue of plea agreements, as well as on sentencing practice at the Tribunal, which varies so widely that it appears incoherent.
As for Momir Nikolic's 27 year sentence, one has to say that the Trial Chamber was not impressed with the Accused. Appropriately, they gave the greatest weight to the gravity of the offense. 'The crimes committed at Srebrenica were of an enormous magnitude and scale, and the gravity of these crimes is unquestionable. At least 7,000 men were separated from their families, murdered and buried in mass graves. The manner in which the executions were carried out, as described by Witness I, was both methodical and chilling in its 'efficiency' and display of utter inhumanity. Furthermore, the majority of the population of the municipality of Srebrenica was deported and made refugees. Over eight years later, the impact of the crimes committed after the fall of Srebrenica continue to be felt upon the women, children and men who survived the horrific events – many of whom continue to live as refugees due to their forcible displacement from their homes.'
Nikolic's position as Brigade Security and Intelligence Officer and his role in coordinating and directing the logistics of the ethnic cleansing and mass murder campaign were also considered significant by the Court. Nikolic was not 'simply following orders,' the judges noted. '[He] took an active role in furthering the commission of the crime.'
The Court was particularly offended by a statement in the Defence brief comparing Nikolic's role and position with that of Biljana Plavsic, former Republika Srpska Presidency member, who pled guilty a year ago and received an 11 year sentence. 'The Trial Chamber was shocked to hear the Nikolic Defence state that 'only' 7,000 men – 'only' Muslim men (as opposed to all non-Serbs) – from 'only' one municipality were murdered.' Plavsic, the Defence argued, was guilty for the deaths of 50,000 non-Serbs from 37 municipalities. The Court concluded, 'The comparison is not helpful to assess the gravity of the offence, and the use of the term 'only' in relation to the number of persons murdered is shameful.' Indeed. However, Nikolic should not be penalized for the prejudice shown by his lawyers. Moreover, the comparison of Nikolic's 27 year sentence with Plavsic's 11 year sentence (who was in a much higher position, offered no cooperation with the prosecution, provided only a tepid statement of remorse and showed little emotion when expressing it) is not inappropriate. The difference between the sentences of the two appears to lie in the different perspectives of two different trial chambers. That doesn't make for confidence in the system's fairness. (One is not arguing that the Plavsic sentence should be the standard by which all others are judged; but that there must be more transparent and objective sentencing standards.)
While the Trial Chamber refused to consider Plavsic's sentence in its deliberations, it noted a number of others in a footnote to support its contention that its sentence was not 'capricious or excessive.' Only one of the sentences was of an Accused who pled guilty, Goran Jelisic, who received a sentence of 40 years for offences other than persecutions. The sentences the Court selected ranged from 18 years to life.
The Court concluded that a sentence in the range of 20 years to life in prison was appropriate based on the gravity of the crime, Nikolic's role and participation in it and the sentencing practices of the ICTY and the former Yugoslavia. It then proceeded to consider any aggravating and mitigating circumstances.
The Trial Chamber concluded that Nikolic's position of authority and the vulnerability of the victims were aggravating factors. While it considered a number of mitigating factors, it rejected several and gave others little weight.
Though the Prosecutor advised the Court that Nikolic had fully cooperated with it, including providing new information that resulted in the identification of previously unknown mass gravesites, testifying for eight days in the Blagojevic and Jokic trial, and providing information about events in Eastern Bosnia beyond what he agreed, the Court gave it little weight. Cooperation, the Court found, rests on the credibility of the Accused – and the judges didn't find Nikolic very credible. It wasn't only that he claimed greater responsibility for crimes than he had (a matter which was corrected almost immediately). The Court found his testimony evasive in 'numerous instances' and that it was not as detailed as it could have been. '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.'
Nor was the Trial Chamber impressed by his expression of remorse and apology to the victims, their families and the Bosniak people. The Chamber referenced Nikolic's explanation of his reason for pleading guilty and for providing the Prosecution with false information (accepting guilt for crimes he did not commit), i.e. that he wanted to avoid the trauma of a trial. As a result, '[T]he Trial Chamber finds that Momir Nikolic's expression of remorse is a mitigating factor, but cannot afford substantial weight to this factor.' Where some were moved by Nikolic's expression of remorse and found his reason for wanting to avoid trial possible evidence of his remorse, the Trial Chamber clearly did not.
Other mitigating factors it considered and rejected were his comportment while in detention (it is expected of all accused) and his family circumstances, i.e. no prior convictions, a wife, two sons and a dependent mother-in-law (it can be said of many accused). In addition, they refused to make a finding that he would have voluntarily surrendered if he had known of the indictment against him (he was arrested shortly after the indictment was unsealed).
In the end, the Trial Chamber only found mitigation in the fact that Nikolic, before the war, was a respected community member who did not discriminate and in certain aspects of his guilty plea. Those aspects include: it contributes to establishing a historical record, a perpetrator's recognition of crimes can provide some closure for certain victims and thus promote reconciliation: it shows acceptance of individual criminal responsibility and spares some witnesses from testifying. The Court rejected that saving Tribunal resources by a guilty plea is a mitigating factor.
The Trial Chamber's judgment will almost certainly be appealed by the Defence, if not the Prosecution as well. Reflecting on the decision, it appears the Chamber's caution over the place of guilty pleas in Tribunal practice combined with its abhorrence of the crimes in Srebrenica, its assertion of judicial primacy over prosecutorial power and its lack of sympathy for this particular accused led to their imposition of a 27 year sentence, a sentence in excess of what the prosecution recommended. The Chamber's decision highlights the need for clear, objective sentencing standards as well as further, more explicit Tribiunal guidance on the role of plea agreements. In the meantime, plea agreements are likely to be made with considerable caution.
