The Prosecutor v. Milan Babić

Court	International Criminal Tribunal for the former Yugoslavia (ICTY) Appeals Chamber, The Netherlands
Case number	IT-03-72-A
Decision title	Judgement on Sentencing Appeals
Decision date	18 July 2005
Categories	Crimes against humanity
Keywords	aggravating and mitigating circumstances, guilty plea, Krajina, Sentence
Links	Judgement
Other countries involved	Croatia (Hrvatska)

Summary

The case against Milan Babić centered around the crimes that were committed by Serb forces in the Autonomous Region of Krajina (SAO Krajina) in Croatia, later known as the Republic of Serbian Krajina (RSK). Between August 1991 and February 1992, Serb forces attacked towns and villages in the Krajina region. After taking over control of the area, a campaign of crimes was commenced during which Croats and other non-Serbs were subjected to murder, imprisonment, deportation, forcible transfer and destruction of their homes, properties and cultural institutions. Babić held several high-level positions, such as President of the RSK.

On 27 January 2004, Babić pleaded guilty to the crime against humanity of persecutions and, subsequently, on 28 January 2004, Trial Chamber I issued its judgment. It found that the crimes were of extreme gravity and Babić's high level political position was an aggravating factor since he made resources available and prepared the Serb population to accept the crimes of persecution. Trial Chamber I also found several mitigating factors, including Babić's guilty plea, cooperation with the Prosecution, his remorse and family situation. Babić appealed.

The Appeals Chamber rejected his grounds of appeal: the Trial Chamber had given due consideration to the facts and circumstances, including the mitigating and aggravating factors, and since it is not bound by any agreement between parties, it did not err in not following the requested sentence. The fact that one mitigating factor (the post-conflic efforts to further peace) were wrongly disregarded, did not make the overall sentence of thirteen years' imprisonment unfair

Procedural history

The indictment was filed on 6 November 2003. On 12 January 2004, the Prosecution and Milan Babić together filed a plea agreement and a Statement of Facts. On 22 January 2004, an amended plea agreement was filed.

On 27 January 2004, Babić pleaded guilty to the crime of persecutions committed through a joint criminal enterprise. Trial Chamber I accepted the plea and entered a finding of guilt one day later (see ICTY, ‘Milan Babic's Guilty Plea to One Count of Crimes Against Humanity Accepted by Trial Chamber I’, ICTY Press Release, 28 January 2004.

After balancing the gravity of the crime Babić had admitted to with the aggravating and mitigating circumstances, the Trial Chamber issued its sentencing judgment on 29 June 2004. Due to the extreme gravity of the crimes and Babić's high level political position Babić was sentenced to 13 years' of imprisonment, despite his guilty plea.

Related developments

On 5 March 2006, Milan Babić committed suicide in his cell at the United Nations Detention Unit. See ICTY, ‘Milan Babic Found Dead in Detention Unit’, ICTY Press Release, 6 March 2006.

Legally relevant facts

The underlying facts concern attrocities (including persecution and deportation of civilians and destruction of property) committed by Serb forces between August 1991 and February 1992 in towns and villages in the Autonomous Region of Krajina (SAO Krajina), Croatia, after which the Serb Republic (RSK) was denounced. During this time, Babić held several high-level positions, including the position of President of the RSK in December 1991. He was also the commander-in-chief of the SAO Krajina's armed forces. For a more elaborate analysis of the facts of the case, please see the Trial judgment.

In admitting his guilt for a number of the committed crimes, he made a plea agreement with the Prosecutor, who would in turn ask a prison term of 'just' eleven years. The Trial Chamber sentenced him to thirteen years' imprisonment.

Babić's eleven grounds of appeal come down to a complaint about the sentencing: he alleged that, by not accepting the first plea agreement, not following the Prosecutor's eleven years prison-request, not making findings on the facts and statements as agreed upon in the plea agreement, not (sufficiently) taking into account the mitigating factors and misinterpreting his role in the crimes, the Trial Chamber had erred in fact and in law in its sentencing. He also compared his sentencing with that in the Biljana Plavšić case, in which Ms. Plavšić received a sentence of 'only' eleven years.

Core legal questions

Has the Trial Chamber erred in fact and/or in law in its sentencing?

Specific legal rules and provisions

Articles 3, 5 and 23-25 of the ICTY Statute.
Rules 62bis, 100-106 and 117-118 of the ICTY Rules of Procedure and Evidence.

Court's holding and analysis

Starting with the statement that the Trial Chamber would not accept Babić's first plea agreement, the Appeals Chamber found that Babić had been fully aware that he had a choice to submit the agreement. As the Trial Chamber was satisfied the second plea was "voluntary, informed, unequivocal, and supported by a factual basis", it had not erred in accepting it.

Regarding the Trial Chamber's non-evaluation of facts and statements both Babić and the Prosecutor had agreed upon in the agreement, the Appeals Chamber noted that it is not needed to make explicit findings on such agreed or undisputed facts. Furthermore, concerning the comparison with the Plavšić-case and the length of the sentence, the it was recalled that the Trial Chamber is bound neither by any agreement between parties nor by previous cases. It does need to give "due consideration" to plea agreements, though, but still has a discretionary power to consider the facts and circumstances. This also allowed the Trial Chamber to find that Babić's participation in the crimes had actually been less limited than agreed upon.

Turning to the mitigating and aggravating factors, the Appeals Chamber emphasised the Trial Chamber's discretion. The test is whether this discretion has been (evidently) abused. Finding that personal mitigating factors had little weight, was therefore allowed. However, in the Trial Chamber's consideration of Babić's post-conflict reparative efforts, the Appeals Chamber did find an error: by interpreting the Plavšić-assessment as solely taking into account those efforts aimed at directly alleviating victims' suffering, the Trial Chamber had wrongly given to little weight to Babić's efforts of furthering peace and aleviating problems in prisons. Nevertheless, this error was not found to necessitate a change in the sentence. Where Babić complained about the assessment of aggravating factors, the Appeals Chamber noted that he had misunderstood the trial judgment. His mere high position did not constitute an aggravating factor; his furthering the commission of the crimes through allocating resources and giving inflammatory speeches, on the other hand, did.

All in all, the Appeals Chamber found that the Trial Chamber had duly considered all facts and circumstances, including the mitigating and aggravating factors (except for abovementioned error). It affirmed the judgment and sentence of thirteen years' imprisonment.