THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA

Case No. IT-02-60-PT

THE PROSECUTOR
v.
MOMIR NIKOLIC

ANNEX A

TO THE JOINT MOTION FOR CONSIDERATION OF PLEA AGREEMENT BETWEEN MOMIR NIKOLIC AND THE OFFICE OF THE PROSECUTOR

AMENDED PLEA AGREEMENT

Introduction

  1. This constitutes the Plea Agreement, pursuant to Rule 62bis of the Rules of Procedure and Evidence ("the Rules"), between the Accused, Momir Nikolic, through his Counsel Veselin Londrovic, and the Office of the Prosecutor (OTP). The purpose of this Agreement is to clarify the understanding of the parties as to the nature and consequences of Mr. Nikolic’s guilty plea and to assist the parties and the Trial Chamber in ensuring that the plea is valid, according to the Rules set forth by this Tribunal. The terms of the agreement are as follows:

    2. Plea to Count 5 of the Indictment, Persecutions, A Crime Against Humanity

  2. Momir Nikolic agrees to plead guilty to Count 5 of the Amended Joinder Indictment dated 27 May 2002, alleging Persecutions, a Crime Against Humanity, punishable under Article 5(h) of the Statute of the Tribunal, which states the following in relevant part:

    The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population:

       b. persecutions on political, racial and religious grounds

  3. Momir Nikolic agrees that he is pleading guilty to Count 5 because he is in fact guilty and acknowledges full responsibility for his actions that are the subject of the Indictment.

    4. Consideration for Momir Nikolic’s Plea and Co-operation

  4. In exchange for Momir Nikolic’s plea of guilty to Count 5, Persecutions, a Crime Against Humanity and his complete co-operation with the OTP as set forth in paragraphs 9-11 of this Agreement and the fulfilment of all his obligations under this Agreement, the Office of the Prosecutor agrees to the following:
    1. That the Prosecutor will recommend to the Trial Chamber that they impose a sentence within the range of 15 to 20 years and that the Accused be given credit for the time he has served in ICTY custody. The Defence will recommend a sentence of 10 years.
    2. That, at the time of the acceptance of the plea by the Trial Chamber, the Prosecutor will move to dismiss without prejudice to either party the remaining charges against Momir Nikolic set out in the Indictment.the Office of the Prosecutor agrees to move to dismiss at the time of sentencing the remaining charges set out in the Indictment.

Nature of the Charges

  1. Momir Nikolic understands that he is pleading guilty to Count 5 of the Indictment, Persecutions, a Crime Against Humanity, specifically acknowledging and admitting his conduct as set forth in paragraphs 9-11, 15-27, 30-33, 36-45, 46.1-46.12, 47, 47.2-47.5, 51, 58, 59 of the Indictment and further described in this agreement. However, Momir Nikolic and the Prosecution agree that the following corrections are to be made to the Indictment:
    1. Paragraph 31 (second sentence): As to Momir Nikolic only, dDelete reference to "genocide or complicity in genocide" and to "murder as a violation of the laws or customs of war". Also replace reference to "crimes against humanity (including murder, persecutions, forcible transfer, and inhumane acts)" with "crimes against humanity (persecutions)".
    2. Paragraph 39 (fourth sentence): Delete second reference to Momir Nikolic.
    3. Paragraph 45 (second subparagraph, third sentence): Instead of "in compliance with the orders of Vidoje Blagojevic" it should say "under the authority of Vidoje Blagojevic".

There are further corrections of minor character to the Indictment which will be addressed by Momir Nikolic in his "Statement of Agreed Upon Facts and Acceptance of Responsibility".

  1. Momir Nikolic understands that if a trial were held, the Prosecutor would be required to prove the following elements of Article 5 beyond a reasonable doubt:

Persecutions

  1. an armed conflict existed during the time frame of the Indictment

    2. It is understood and agreed by Momir Nikolic and the OTP that the armed conflict alleged in paragraph 15 of the Indictment is the armed conflict that began on 6 April 1992 and ended with the Dayton Peace Agreement, signed on 14 December 1995.

  2. there was a widespread or systematic attack directed against a civilian population and, in a manner related to that attack, Momir Nikolic committed acts against the civilian population that violated fundamental human rights

    3. It is understood and agreed that the widespread or systematic attack on the civilian population of Srebrenica as alleged in paragraph 17 of the indictment and described in paragraphs 18 through 26 of the Indictment includes:

    (1) the murder of over 7000 Bosnian Muslim men ages 16-60, including some women, children and elderly men, from the period beginning 12 July through 1 November 1995; (2) the cruel and inhuman treatment of Bosnian Muslim civilians, including beatings of civilians in and around Potocari and detention centres in Bratunac on 12 and 13 July 1995; (3) the terrorisation of Bosnian Muslim civilians in Srebrenica and Potocari on 12 and 13 July 1995; (4) the destruction of personal property and effects of the Bosnian Muslim population of Srebrenica and (5) the forcible transfer of the entire Bosnian Muslim population from the Srebrenica enclave.

  3. Momir Nikolic’s conduct was committed on political, racial or religious grounds and was committed with discriminatory intent.

    4. It is understood and agreed that one of the reasons Mr. Nikolic committed the conduct described in the Indictment and herein was because the victims were Bosnian Muslims.

  4. Momir Nikolic was aware of the wider context in which his conduct occurred.

    It is understood and agreed that Mr. Nikolic was aware of the widespread or systematic abuses described in the Indictment and in this agreement and of their effect on the entire population of Bosnian Muslims from the Srebrenica enclave.

Factual Basis

  1. Momir Nikolic and the Prosecution agree that if the Prosecution were to proceed with evidence, the facts and allegations as set out in paragraphs 9-11, 15-27, 30-33, 36-45, 46.1-46.12, 47, 47.2-47.5, 51, 58, 59, Annex A, Annex B, and Attachments A-E of the Amended Joinder Indictment dated 27 May 2002, would be proven beyond a reasonable doubt, and that those facts are true and correct and not disputed by Momir Nikolic. (with the corrections to the Indictment made in paragraph 5 above). Specifically, Momir Nikolic acknowledges the facts set forth in the "Statement of Agreed Upon Facts and Acceptance of Responsibility," attached to this Agreement at Tab A.

  2. The Prosecution and Momir Nikolic agree that the evidence supports a finding of guilt on Count 5, Persecutions, of the Indictment.

Co-operation by Momir Nikolic

  1. This Agreement is contingent upon Momir Nikolic’s voluntary decision to accept responsibility for his actions and to co-operate with and to provide truthful and complete information to the Office of the Prosecutor whenever requested. In accordance with such co-operation, Momir Nikolic agrees to meet as often as necessary with members of the Office of the Prosecutor in order to provide them with full and complete information and evidence that is known to him regarding the events surrounding the attack and fall of the Srebrenica enclave July 1995. Mr. Nikolic agrees to be truthful and candid, and to freely answer all questions put to him by members of the Office of the Prosecutor. Mr. Nikolic agrees to testify truthfully in the trial of the co-Accused in this case before the Tribunal and in any other trials, hearings or other proceedings before the Tribunal as requested by the Prosecution.

  2. The Prosecution and Mr. Nikolic also agree that they will jointly recommend to the Trial Chamber that sentencing of Mr. Nikolic in this matter not be set until after Mr. Nikolic has testified in the upcoming trial, in order that the full nature and scope of Mr. Nikolic’s co-operation may be seen and evaluated by the Trial Chamber prior to sentencing.

  3. It is understood and agreed by Momir Nikolic and the Prosecution that all information and testimony provided by Mr. Nikolic must be absolutely truthful. This means that Momir Nikolic must neither minimise his own actions nor fabricate someone else’s involvement.

Maximum Possible Penalty and Sentencing

  1. Momir Nikolic understands that, pursuant to Rule 101 of the Rules, he could face a sentence, if convicted after trial, of a term of imprisonment up to and including the remainder of his life.

  2. Momir Nikolic understands that the Prosecution’s recommendation of 15 to 20 years’ and the Defence recommendation of 10 years incarceration is not binding on the Trial Chamber and that the Trial Chamber is free to sentence the Accused as it sees fit.

  3. Momir Nikolic agrees that he will not appeal the sentence imposed by the Trial Chamber unless the sentence imposed is above the range recommended by the parties.

  4. Momir Nikolic agrees that he will not move to withdraw his guilty plea or appeal his conviction pursuant to his guilty plea.

  5. Momir Nikolic understands that, pursuant to Article 24 of the Statute and Rule 101 of the Rules, the Trial Chamber should take into account in determining the appropriate sentence such factors as the gravity of the offence and the individual circumstances of the convicted person. In addition, the Trial Chamber should take into account such factors as: any aggravating circumstances, any mitigating circumstances including the substantial co-operation with the Prosecutor by the convicted person before or after conviction, the general practice regarding prison sentences in the courts of the former Yugoslavia, and the extent to which any penalty imposed by a court of any State on the convicted person for the same act has already been served.

Waiver of Rights

  1. By pleading guilty, Momir Nikolic understands he will be giving up the following rights:

    1. the right to plead not guilty and require the Prosecution to prove the charges in the Indictment beyond a reasonable doubt at a fair and impartial public trial;
    2. the right to prepare and put forward a defence to the charges at such public trial;
    3. the right to be tried without undue delay;
    4. the right to be tried in his presence, and to defend himself in person at trial or through legal assistance of his own choosing at trial;
    5. the right to examine at his trial, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf at a trial under the same conditions as witnesses against him;
    6. the right not to be compelled to testify against himself or to confess guilt;
    7. the right to testify or to remain silent at trial; and
    8. the right to appeal a finding of guilty or to appeal any pre-trial rulings.

  1. It is understood that by pleading guilty the Accused does not waive his right to be represented by Counsel at all stages of the proceedings.

    2. Voluntaries of the Plea

  2. Momir Nikolic acknowledges that he has entered this Plea Agreement freely and voluntarily, that no threats were made to induce him to enter this guilty plea, and that the only promises made to him are those set forth in this agreement.

    3. Other Agreements

  3. Except as expressly set forth herein, there are no additional promises, understandings or agreements between the Office of the Prosecutor and Momir Nikolic or his Counsel, Veselein Londrovic. Part of this Agreement is a confidential "Annex Tab B" which will be filed separately and under seal.

    4. Declaration of Momir Nikolic

  4. I, Momir Nikolic, have read this Plea Agreement in a language which I understand and have carefully reviewed every part of it with my Counsel, Veselin Londrovic. Mr. Londrovic has advised me of my rights, or possible defences, and of the consequences of entering into this Agreement. No other promises or inducements have been made to me, other than those contained in this Agreement. Furthermore, no one has threatened me or forced me in any way to enter into this Agreement. I have entered into this Agreement freely and voluntarily, and am of sound mind. I understand the terms or this Agreement, and I voluntarily agree to each of the terms.

__________
Momir Nikolic

Declaration of Counsel

 

I, Veselin Londrovic, am Momir Nikolic’s Counsel. I have carefully reviewed every part of this Agreement with my client. Further, I have fully advised my client of his rights, and possible defences, of the maximum possible sentence and the consequences of entering into this Agreement. To my knowledge, my client is of sound mind and his decision to enter into this Agreement is an informed and voluntary one.

__________
Veselin Londrovic Date
Counsel for Momir Nikolic

 

On this 7th day of May 2003 the undersigned parties fully agree to each and every term and condition of this Plea Agreement:

__________
Momir Nikolic

__________
Veselin Londrovic
Counsel for Momir Nikolic

__________
Peter McCloskey
Senior Trial Attorney
Office of the Prosecutor

__________
Stephan Kirsch
Co-Counsel for Momir Nikolic