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Plavsic Trial Chamber Sentencing Judgment

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PROSECUTOR v. PLAVŠIĆ
Case No. IT-00-39 & 40/1-S
International Criminal Tribunal for the Former Yugoslavia
Trial Chamber Sentencing Judgment
February 27, 2003

Judges:
Judge Richard May, Presiding
Judge Patrick Robinson
Judge O-Gon Kwon

Prosecution:
Ms. Carla Del Ponte
Mr. Mark Harmon
Mr. Alan Tieger

Defense:
Mr. Robert J. Pavich
Mr. Eugene O’Sullivan

Gender Keyword(s): Detention centers; Rape; Sexual assault/attack/abuse; Sexual violence

Procedural History: On April 3, 2000, the Prosecution of the International Criminal Tribunal for the former Yugoslavia (ICTY) issued an indictment against Biljana Plavšić,1 which was confirmed by Judge Wald on April 7, 2000 ( 1). The indictment remained sealed until Plavšić voluntarily surrendered on January 10, 2001 (id.). On January 11, 2001, at her initial appearance before Trial Chamber III, Plavšić pleaded not guilty to all counts and was remanded to the United Nations Detention Unit ( 3). On February 23, 2001, Judge May confirmed a consolidated indictment against Plavšić and Momčilo Krajišnik and an amended consolidated indictment against them was confirmed by the same judge on March 4, 2002 ( 2). The amended consolidated indictment charged both Plavšić and Krajišnik with genocide; complicity in genocide; and the crimes against humanity of persecutions, extermination and killing, deportation, and inhumane acts (id.). On August 29, 2001, Plavšić was provisionally released to live in the Republic of Serbia ( 4). On October 2, 2002, Plavšić pleaded guilty to Count 3, persecutions as a crime against humanity ( 5). Specifically, Count 3 alleged that between July 1, 1991, and December 30, 1992, Plavšić, individually and as part of a joint criminal enterprise (JCE), “planned, instigated, ordered, and aided and abetted persecutions of the Bosnian Muslim, Bosnian Croat and other non-Serb populations of 37 municipalities in Bosnia and Herzegovina” (BiH) ( 8). The Trial Chamber was satisfied that Plavšić’s plea was “voluntary, informed and unequivocal, and that there was a sufficient factual basis for the crime and the accused’s participation in it” and returned a finding of guilty ( 5). This guilty plea was entered pursuant to a Plea Agreement made between the parties on September 30, 2002, and in the Plea Agreement, the Prosecutor agreed to move to dismiss the remaining counts of the amended consolidated indictment and the Trial Chamber dismissed them on December 20, 2002 (id.). This is a digest of the Trial Chamber’s Sentencing Judgment.

Disposition: Plavšić, aged 72 at the time of the Trial Chamber’s Sentencing Judgment, was elected as a Serbian Representative to the Presidency of the Socialist Republic of BiH on November 11, 1990, and served until December of 1992 ( 10). From February 28, 1992 to May 12, 1992, she was acting Co-President and from May until December 1992 she was a member of the collective and expanded Presidencies of Republika Srpska (id.). The Trial Chamber notes that “[b]y October 1991, the Bosnian Serb leadership, including Mrs. Plavšič, knew and intended that the separation of the ethnic communities would include the permanent removal of ethnic populations, either by agreement or by force and further knew that any forcible removal of non-Serbs […] would involve a discriminatory campaign of persecution” ( 11). The persecutory acts referenced in Count 3 of the amended consolidated indictment included killings during attacks on towns and villages; cruel and inhumane treatment during and after the attacks; forced transfer and deportation; unlawful detention and killing, forced labor and the use of human shields; cruel and inhumane treatment and inhumane conditions in detention facilities; destruction of cultural and sacred objects; and plunder and wanton destruction ( 15). Cruel and inhumane treatment and inhumane conditions within the detention facilities were characterized by rape, sexual violence, torture, beatings, and killings ( 27, 29, 30). Plavšić’s role in the JCE involved the covering up of these crimes: she made public statements of denial for which she had no support and disregarded reports of widespread ethnic cleansing and “publicly rationalised and justified” the actions and policies of the Bosnian Serb leadership ( 17-18). When she subsequently had reason to know that these denials were in fact untrue, she did not recant or correct them ( 17). In light of Plavšić’s guilty plea, which the Trial Chamber accepted as “voluntary, informed and unequivocal, and that there was a sufficient factual basis for the crime and the accused’s participation in it,” the Trial Chamber found Plavšić guity of persecutions as a crime against humanity ( 5). The Trial Chamber sentences Plavšić to 11 years of imprisonment ( 134).

Key Gender-Based Holdings:

DETENTION CENTERS:
• Plavšić pleaded guilty to persecution as a crime against humanity, including the allegations that individuals were unlawfully detained in detention facilities under inhumane conditions and subjected to cruel and inhumane treatment (15). Schedule C of the amended consolidated indictment alleged that there were about 400 detention facilities in 34 municipalities and that these facilities included prisons, police stations, schools, barracks, factories, and community centers ( 16).
• Extracts from witness testimonies indicated that individuals detained at the Luka and Čelopek camps and at Ekonomija farm were subjected to rapes and sexual violence ( 27, 29, 30).

RAPE:
• In its Sentencing Brief, the Prosecution included various extracts from witness testimonies in other cases before the ICTY to demonstrate the impact of crimes such as rapes, beatings, and murders on residents of Brčko, Višegrad, Foča and other communities ( 29). One extract discussed incidents in the municipality of Brčko, where Muslim inmates were subjected to rapes, killings, and beatings while detained at the Luka camp (id.). Although Plavšić is not charged with any specific crimes of a sexual nature, incidences of sexual violence and rape are some of the underlying abuses that contribute to allegations of cruel or inhumane treatment in detention facilities and the charge of persecution as a crime against humanity to which Plavšić pleaded and was found guilty ( 5, 27, 29, 30, 34). The Trial Chamber emphasizes that “these crimes did not happen to a nameless group but to individual men, women and children who were mistreated, raped, tortured and killed” ( 126). The Trial Chamber states that “the fact that this appalling conduct was repeated so frequently, calls for a substantial sentence of imprisonment” (id.).

SEXUAL ASSAULT/ATTACK/ABUSE:
• The Trial Chamber recounts the fact that the forcible expulsions in 37 municipalities committed as part of the JCE of which Plavšić played a part were characterized and accompanied by brutality and violence that included numerous killings, sexual assaults, and rapes ( 34). During closing submissions at the sentencing hearing, the Prosecution stressed that the camps and detention facilities were characterized by mistreatment and referred to the brutal conditions, sexual assaults, and torture that occurred in the camps ( 120). These allegations supported the charge of persecutions as a crime against humanity to which Plavšić pleaded and was found guilty ( 5).

SEXUAL VIOLENCE:
• In reference to the gravity of the crime as a factor to be taken consideration at sentencing, the Prosecution submitted that Plavšić participated in a JCE that was massive and over a vast area, with thousands of people expelled and killed, and was conducted with brutality and cruelty, including sexual violence, rapes, and torture ( 27, 34). The Prosecution submitted an annex of witness testimony recounting incidences of a sexual nature in the municipality of Zvornik at which sexual violence and killings occurred at the Ekonomija farm and the Čelopek camp, including forced assaults by family members against each other, resulting in death in some cases ( 29). Although Plavšić was not charged with any specific crimes of a sexual nature, incidences of sexual violence and rape were some of the underlying abuses that supported allegations of cruel or inhumane treatment in detention facilities charged as persecution as a crime against humanity to which Plavšić plead and was found guilty ( 5, 27, 29, 30, 34).

Other Issues:

SENTENCING:
• Sexual violence is referenced in the discussion of sentencing factors as an element of the JCE that contributes to its gravity as a crime ( 27). As noted above, the Trial Chamber emphasizes that “these crimes did not happen to a nameless group but to individual men, women and children who were mistreated, raped, tortured and killed” and states that “the fact that this appalling conduct was repeated so frequently, calls for a substantial sentence of imprisonment” ( 126).

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1 Prosecutor v. Biljana Plavšić, Indictment of April 3, 2000.

GENDER JURISPRUDENCE AND
INTERNATIONAL CRIMINAL LAW PROJECT

American University Washington College of Law
4300 Nebraska Ave NW - Washington, DC 20016