Tribunal Criminal Tribunal for the Former Yugoslavia

Page 8349

1 Friday, 20 July 2001

2 [Closing statement - Defence]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 9.33 a.m.

6 JUDGE HUNT: Call the case, please.

7 THE REGISTRAR: Yes, Your Honour. This is the case number

8 IT-97-25-T, the Prosecutor versus Krnojelac.

9 JUDGE HUNT: Before you start, Mr. Vasic: Mr. Bakrac, I made an

10 inquiry about your perhaps mildly expressed complaint as to the time you

11 were given your copy of the Prosecution's final submissions. I can assure

12 you, there was no discrimination on any political, racial or religious

13 grounds, because the Judges got theirs I think about half an hour after

14 you got yours. So we're very sorry that it was late, but you were not the

15 only one.

16 Now, Mr. Vasic.

17 MR. VASIC: [Interpretation] Thank you, Your Honour. First of all,

18 I'd like to greet everyone, without addressing any individual in the

19 courtroom.

20 Your Honours, it is the Defence position that the Prosecution did

21 not prove beyond a reasonable doubt for the counts set out in Article 7(1)

22 of the Statute. Some of these crimes imply discriminatory intention, and

23 the Defence will point to several issues that need to be taken into

24 account when assessing whether such an intent existed at the relevant

25 time.

Page 8350

1 As we heard in this case, Mr. Krnojelac spent his entire career as

2 an educator in the primary school. He was focused exclusively on raising

3 the level of education and knowledge of his students, catering to their

4 needs and wishes, without any discrimination of any kind, all the way up

5 to 8 April 1992, when the war conflict broke out. In his life there was

6 no room for politics. He was only a member of the Communist League of

7 Yugoslavia at the time when it was the only political party in existence

8 in Yugoslavia and when there was no political strife, so that the

9 participation of common members was directed exclusively to upholding the

10 basic values promulgated by this party, which was the fostering of the

11 brotherhood and unity of the ethnic groups of the former Yugoslavia and

12 the equality of its citizens.

13 This same ideology was imparted on the accused in the school for

14 reserve officers, where he trained during his national service. The

15 doctrine of this training, as it was for the entire Yugoslav People's

16 Army, was the defence against the outside enemies and the upholding of the

17 brotherhood and unity among its different peoples as its most valued

18 heritage. Respecting these principles, Mr. Krnojelac defined his

19 attitudes in such a way that they were in direct conflict with

20 participating in any other organisation which would be based on any kind

21 of ethnic, religious, or other discrimination.

22 The Defence finds support for this view in the evidence given by

23 the accused himself, in the conclusions of the expert witnesses,

24 psychologists, and in the testimony of Prosecution witnesses. One of the

25 Prosecution witnesses, FWS-111, said here before this Trial Chamber that

Page 8351

1 Milorad Krnojelac saw him [redacted], that is, on

2 the eve of the conflict. This witness expressed his view that

3 Mr. Krnojelac showed anxiety, anger in respect of the situation prevailing

4 in the town and which irritated him. [redacted]

5 [redacted]

6 The fact that Milorad Krnojelac, several days before the outbreak

7 of hostilities in Foca, when the town was already split down the ethnic

8 lines, [redacted]

9 [redacted]

10 [redacted]

11 [redacted]

12 [redacted]. The expert witnesses heard

13 before this Trial Chamber also speak of that.

14 Another witness, FWS-86, mentioned what were Mr. Krnojelac's views

15 on what was going on in Foca at the time. This witness said that in their

16 conversation about what was going on, he thought that the accused did not

17 support, that he did not think that what was happening to the ethnic

18 Muslims in Foca was good.

19 The son of the accused, the Defence witness Bozidar Krnojelac,

20 told this Chamber that while they were together at the KP Dom, Milorad

21 Krnojelac told him on several occasions that he found it hard to watch as

22 people were brought in and him not being able to do anything about it.

23 The Defence also has to point out that the evidence of the family

24 members of Milorad Krnojelac further supports the fact that Milorad

25 Krnojelac, as a father and husband, never passed on to the members of his

Page 8352

1 family any attitudes that were based on discrimination or encouraged

2 adoption of such views.

3 It is therefore clear that Milorad Krnojelac could not have and

4 did not want to support any bad actions towards members of other ethnic or

5 religious groups, nor did he want to take part in any other criminal

6 intent or action or be a member of any association that would have such

7 political goals. To the contrary, his views must have had -- must have

8 influenced his family members, a family which to date remained unified. I

9 believe that we have all seen that here. The very fact that he chose a

10 woman of Croatian ethnic background and remained in harmonious marriage

11 with her throughout this time also supports the submission of the

12 Defence.

13 The Defence would like to further point out two witness statements

14 which we heard in this case. The Defence Witness A, [redacted]

15 [redacted]

16 [redacted], in tears told us what was the prevailing view

17 on Milorad Krnojelac, mentioning that after his arrest, she frequently

18 talked to the friends in the town of "B" [phoen]. They were all wondering

19 why this mistake of his arrest was made and expressed hope that it would

20 be resolved. When asked why despite her tragedy she showed up here to

21 give evidence as a Defence witness, [redacted],

22 [redacted]

23 [redacted], and that she would not have come to give

24 evidence had she not believed in him.

25 Another example is a Prosecution witness, FWS-144, who in his

Page 8353

1 evidence described his family tragedy, [redacted]

2 [redacted] And he says the following about

3 Milorad Krnojelac: "When I would see him in the metalwork shop, that is,

4 when he showed up at the metalwork shop, he was very polite, he was

5 courteous. You could not notice him expressing any hatred or saying

6 anything against Muslims."

7 As far as the Krnojelac family members' attitudes towards ethnic

8 Muslims who worked on the repairs of the house, this witness says that all

9 members of the family behaved properly, and he said that he could even

10 describe it as friendly, and that especially Mr. Krnojelac's wife showed

11 goodness to them and that the food that was offered to them there was

12 offered them in a very friendly way. This is in transcript page 2331,

13 lines 19 to 25, and 2332, lines 1 through 16.

14 All this evidence and other evidence which I have not highlighted

15 here point to the character of Milorad Krnojelac and what his views were

16 and what his views towards other ethnic groups have remained.

17 A number of witnesses talk about his courteous, good, even cordial

18 attitude vis-a-vis ethnic Muslims whom he knew. On the other side, no

19 Prosecution witness has stated that in the relevant time, he behaved

20 abusively towards any Muslim, let alone insult them or offend them.

21 It is clear that Mr. Krnojelac never discriminated against other

22 ethnic groups or other religious groups, and therefore, he cannot be

23 viewed as being criminally responsible for any counts based on

24 Article 7(1).

25 Mr. Krnojelac was a teacher and had no previous experience in the

Page 8354

1 running or operating of penal institutions before the war. Having found

2 himself in this position, he did just as Radojica Mladjenovic told him and

3 what was in his job description, that he was appointed exclusively for the

4 civilian part of KP Dom, and his only duty was to protect, repair the

5 facility and property, start production there, and to be responsible for a

6 small number of convicts whom he found there from before the outbreak of

7 the war.

8 This was a situation which he had to do deal with and that was his

9 primary preoccupation, to protect the property and restart the production

10 in the wartime. When part of the KP Dom was leased out to the military

11 for holding the detainees, it is clear that he had no authority over these

12 prisoners of war, which he kept repeating in every occasion.

13 Not being qualified for this job, it inhibited him in his views on

14 what was going on around, and he focused exclusively on what he was

15 assigned to do. This is also borne out by the expert witness findings.

16 In these findings, the accused has been defined as a person who

17 suffered from anxiety and that in the situation in which he was not

18 familiar with, his ability for global assessment would diminish, his motor

19 functions would slow down, and his mental efficiency would be reduced and

20 his emotional stability would also be disturbed. In such a situation, he

21 would be worried and concerned about doing the job that he was assigned

22 to. For this reason, he tended to be hyperactive in his duties and unable

23 to fully assess and judge the situation that he was in. The level of

24 anxiety which we mentioned varies, but with each new problem that

25 confronted him when it concerned the repair of the facility, proper

Page 8355












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Page 8356

1 functioning of the place, or even sending out reports to the authorities,

2 this level of anxiety would further increase.

3 In their final summations, the Prosecution contends that the

4 accused was directly involved in the persecution, enslavement, and cruel

5 treatment of the detainees.

6 My colleague, Mr. Bakrac, has yesterday pointed out that the

7 Prosecution has not proven that the accused was the commander of the

8 camp. The Prosecution also did not prove the direct participation in the

9 campaign of persecution or in aiding and abetting it.

10 It also has not been proven that the civilian part of the KP Dom,

11 of which Mr. Krnojelac was the warden, was involved in these criminal

12 acts. This can be corroborated by the fact, not disputed by the

13 Prosecution, that Mr. Krnojelac provided recommendations and opinions

14 about reduction of sentences of the persons who were in the KP Dom.

15 Exhibit D85, which is his report to the Minister of Justice, is proof that

16 it was only these prisoners who were under the authority of Mr. Krnojelac

17 and the civilian part of the KP Dom, while the Muslim detainees were part

18 of the military authority.

19 Taking into account the specific mens rea, the Defence asserts

20 that the Prosecution did not prove beyond a reasonable doubt that there

21 was discriminatory criminal intent involved in Mr. Krnojelac. On the

22 contrary, the Defence has proven beyond reasonable doubt the absence of

23 such criminal intent, not only during the period relevant for this

24 indictment, but in general, because this type of behaviour was alien to

25 him as a man. Milorad Krnojelac was not a commander of the part of the KP

Page 8357

1 Dom where Muslims were detained, and neither the soldiers nor the guards

2 were under his command. He could not, like the Prosecution contends,

3 participate in the persecution of Muslims and other men, non-Serb

4 civilians, along with other soldiers and guards.

5 Your Honours, the Defence has called and we have heard some of the

6 guards who worked in the part of the prison that was under the military

7 authority. We heard from them who was in charge of these individuals. My

8 learned colleagues, in their closing argument yesterday, attempted

9 to mystify the role of individuals who treated fairly detainees, and

10 without quoting their names yesterday in this Tribunal in order not to

11 jeopardise their safety. However, I would like to remind this Trial

12 Chamber that the guards, who were Defence witnesses, testified here under

13 their full name, without any safety measures, protective measures. They

14 stated clearly here what exactly they did see and what they didn't. The

15 claim of the Prosecution that they denied any criminal activity is not

16 true. These witnesses simply stated what they had seen, without going

17 into conclusions and making assumptions.

18 A person whom all of the Prosecution witnesses describe as the

19 most decent, honourable man, Mr. Risto Ivanovic, came here and testified

20 before the Trial Chamber under his full name. He didn't come here to

21 protect the KP Dom or himself personally, for he had no reasons to do so.

22 If the Prosecution has an intention to accuse a person whom everybody

23 describes as the best and most decent individual, then, in our view, this

24 cannot be attributed to the fact that this man has fears. He came here

25 and he told us exactly who was in charge of the Muslim detainees. He

Page 8358

1 stated that publicly, without any reservation. He also told us what the

2 hierarchy was, who was in charge and who was issuing orders and commands

3 to the guards. Thus, it is clear, in the Defence's submission, that

4 Milorad Krnojelac had no such authorities or responsibilities, and he was

5 not in a position to issue orders to the soldiers or guards or punish

6 them.

7 The Prosecution also failed to prove beyond reasonable doubt that

8 Milorad Krnojelac assisted the deportation of Muslims from the

9 municipality of Foca and their persecution. Based on the Defence Exhibit

10 D42, 43, 44, 45, and 46, it is clear that the exchange, the release, and

11 the bringing in of the Muslim detainees was done under the order of Marko

12 Kovac, who was the commander of the Tactical Group in charge of these

13 activities, and he did so through the persons that are clearly named in

14 the documents that I have referred to.

15 It also has not been proven that there was a direct participation

16 in a long-term and routine imprisonment and detention of these individuals

17 on behalf of Milorad Krnojelac. They also failed to prove that he was

18 responsible for imprisonment under inhumane conditions. Based on the

19 Prosecution Exhibits P2, P4, P5, as well as the Defence Exhibits D38 and

20 38/1, it is clear that the premises in which these individuals were kept

21 had in fact been leased out to the military, so the military was in fact

22 imprisoning and releasing detainees. The leasing out was done in

23 accordance with the decision of the Executive Board of the Municipal

24 Assembly, which was in charge of the KP Dom, and later on the KP Dom came

25 under the responsibility of the Ministry of Justice. The leasing out,

Page 8359

1 which was implementing based on this decision, was done after these

2 premises had already been taken by the military and before Milorad

3 Krnojelac was appointed warden, provisional warden.

4 It has not been proven beyond a reasonable doubt that the accused

5 was in charge of determining conditions for the operation of the military

6 prison.

7 JUDGE HUNT: Mr. Vasic, I wonder if I could just ask you a

8 question about that. It's not been suggested anywhere in the evidence

9 that I can see that the military actually looked after the prisoners, the

10 Muslim prisoners. They certainly interrogated them or they admitted them

11 and they discharged them. But who looked after them in those rooms? It

12 was the ordinary guards, was it not?

13 MR. VASIC: [Interpretation] Your Honours, yes. We heard the

14 testimony of the guards who testified to this. Those were the guards who

15 were mobilised by the military. They were sent to the KP Dom in order to

16 provide internal and external security. These guards were under the

17 military command of the Tactical Group and individuals through whom the

18 Tactical Group exercised its authority over the prison. So these were

19 also members of the armed units, armed services.

20 JUDGE HUNT: So you say that none of the ordinary guards who were

21 in the prison ever had anything to do with the Muslim prisoners? Is that

22 the case that you're putting out?

23 MR. VASIC: [Interpretation] Your Honours, all of the guards who

24 were in the prison who worked as security were mobilised by the military

25 and sent to the KP Dom to guard the Muslim prisoners. There were no

Page 8360












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Page 8361

1 guards who had not been mobilised by the military and who worked on

2 providing security.

3 JUDGE HUNT: I'm not sure that's an answer to my question.

4 Certainly it appears they were mobilised by the army. They were sent to

5 the KP Dom to work. But whereabouts in the evidence do we find a clear

6 piece of evidence that the same guards didn't look after all of the

7 prisoners within the KP Dom? Just like the same cook cooked for them

8 all.

9 MR. VASIC: [Interpretation] Your Honours, my colleague Mr. Bakrac

10 spoke about this to a degree yesterday. In the time period relevant for

11 the indictment, there were Muslims detained in the KP Dom in addition to

12 Serbs who were imprisoned there because they made a criminal offence while

13 in the military service, and the military command was in charge of all of

14 them. In addition to these individuals, there were only some five or six

15 convicts there who were under the responsibility of the Ministry of

16 Justice.

17 In the situation that existed at the time in Foca, these people

18 who had this fairly liberal treatment, who were not locked in the cells,

19 there was no need and there was no possibility to establish a special

20 security service for them that would be separate, because, as I have said,

21 there were only five or six of them, and they were only taken to their

22 meals, escorted to their meals, and that was all.

23 Furthermore, I believe that it has been proven during the

24 proceedings that most of the male population was mobilised and sent to the

25 front line and, therefore, it wasn't possible to create two completely

Page 8362

1 separate services.

2 So the main service was the one appointed by the army, the service

3 that was in charge of guarding detained Muslims and military

4 imprisonments, and in addition to that, they also escorted to the meals

5 those five or six convicts that had been sentenced prior to the breakout

6 of the war.

7 JUDGE HUNT: Please understand, Mr. Vasic, I'm not trying to argue

8 with you about your submissions. I'm trying to find out from you

9 precisely what your answer is to some of the parts of the Prosecution

10 case.

11 What do we do about the evidence that the guards who did look

12 after the Muslims prisoners, when asked could they make a complaint to the

13 warden, they were directed to your client?

14 MR. VASIC: [Interpretation] As far as I remember, Your Honours, if

15 we are speaking about the testimony given here by the witnesses for the

16 Prosecution, the Defence believes that this issue does not stem from the

17 position of the accused nor from the hierarchy, but, rather, from some

18 personal relationship that the accused had with individuals with whom he

19 had these conversations. These were mostly people who were well known in

20 Foca even prior to the breakout of the war. And there also is this issue

21 of what relationship these individuals had with the guards whom they

22 appealed to to take them to the warden.

23 JUDGE HUNT: Thank you.

24 MR. VASIC: [Interpretation] Thank you, Your Honour.

25 The Prosecution failed to prove beyond a reasonable doubt that the

Page 8363

1 accused was responsible for determining the conditions of the operation of

2 the military prison. He was not responsible for providing food, adequate

3 hygiene, and medical care for these individuals. This claim of ours stems

4 from the Prosecution Exhibit P1 and 2. In these exhibits, the current

5 warden describes the separation of the responsibilities at the relevant

6 time in a letter sent to the Ministry of Justice. Therefore, Milorad

7 Krnojelac cannot be accused of establishing discrimination -- a

8 discriminatory system as far as the division or allocation of resources is

9 concerned. Out of his own goodwill, he attempted to improve the living

10 conditions in the KP Dom for everyone, for those for whom he was

11 responsible, for convicts, for the personnel that ate in the same kitchen

12 together with all other detained persons, as well as for those for whom he

13 was not responsible.

14 So he tried to improve conditions, even for those -- even for

15 those who were under the responsibility of the military command. This can

16 be seen on or in many letters and requests sent to the ICRC, even sent to

17 the military command, warning them that they were responsible for feeding

18 individuals under their charge and taking care of their living conditions

19 based on the provisions of the leasing-out contract.

20 The Defence believes that these actions taken by the accused

21 cannot be wrongly used by the Prosecution to prove that he was responsible

22 for determining the living conditions in prison. These actions of the

23 accused, in the Defence's view, speak more of his human qualities and

24 represent an evidence that he tried to do everything in his power to

25 improve living conditions both for those for whom he was responsible and

Page 8364

1 for those for whom he was not. If that wasn't the case, Milorad Krnojelac

2 would not have written requests to the military requiring that they

3 provide food for their prisoners. He would not have written to the ICRC

4 requesting aid shipments.

5 When we are talking about enslavement, the Defence believes that

6 it is not contentious that the Muslim detainees worked in the minimal

7 necessary level in the Economic Unit Drina. My colleague Bakrac touched

8 upon this subject yesterday.

9 The accused explained in his testimony how it came about that

10 these individuals were assigned to work there or engaged to work there,

11 but as in evidence which supports that the assignment of these individuals

12 to that work site was, in fact, a responsibility of the military command

13 and was not something that Milorad Krnojelac was in charge of.

14 After these individuals left KP Dom, they were subjected to even

15 worse physical labour as prescribed by Savo Todovic.

16 In addition to Muslim detainees, there were also convicts who were

17 serving their sentences working at the Economic Unit Drina. They mostly

18 worked at that economic unit. There were also Serb detainees there who

19 had been imprisoned by the military authorities and sentenced to long-term

20 sentences for their criminal offences or misdemeanors.

21 As far as the type of work and conditions under which the labour

22 was performed, as far as the business hours are concerned and the meals

23 that all of these individuals received while at work, the Defence believes

24 that it has been proven that all of them worked under the same

25 conditions.

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Page 8366

1 The witness Bozo Drakul, in his evidence, stated that Serb

2 prisoners who had worked there at the time did not receive any salary due

3 to very poor economic conditions that prevailed at that time and also due

4 to the war situation.

5 JUDGE HUNT: Mr. Vasic, I'm sorry to interrupt again, but you've

6 reached a point where I have got another question arising out of your

7 final submissions, which I hope you will be able to clear up for me.

8 Paragraph 214. I'll just read to you the first sentence.

9 "Milorad Krnojelac is under no account criminally responsible because he

10 was not aware that these people did not work voluntarily, which because of

11 the lack of prior experience in these works and of the knowledge of legal

12 regulations, in particular of the said protocols, created confusion in his

13 mind about the permissibility about using these persons for work."

14 Now, the problem that I have with it is this: Are you saying that

15 he didn't know that you could not force them to work or are you saying

16 that he did not know that they were working -- that they were being forced

17 to work? The question is whether he thought that they could be forced to

18 work and didn't know they couldn't, or whether he just simply didn't know

19 that they were being forced to work.

20 MR. VASIC: [Interpretation] Thank you, Your Honours. The Defence

21 claims that the accused did not know they were forced to work, because he

22 was told by Mr. Savo Todovic that they were working on a voluntary basis.

23 In addition to that, we heard here from the Prosecution witness

24 that they volunteered to go to work, and there was also an explanation as

25 to why they did so. I don't think that that is now relevant for my

Page 8367

1 answer.

2 So the accused was aware of the fact that they had volunteered to

3 go to work. On the other hand, the accused was not familiar with the

4 provisions of the conventions, because he was merely a teacher prior to

5 the breakout of war. He had heard from the colleagues of the economic

6 unit and the administration that in previous times, as part of the

7 rehabilitation process, the convicts were used as labour force and that

8 they did have a work obligation and that that was the basis for the

9 functioning of the Economic Unit of Drina.

10 The Defence believes that these facts resulted in the fact that

11 the accused agreed to this system where the imprisoned or convicted

12 individuals began working in the Drina Economic Unit.

13 JUDGE HUNT: Am I right then in assuming that you are taking both

14 points? You thought that they could be forced to work and you didn't

15 know, in any event, that they were being forced to work. Is that so?

16 MR. VASIC: [Interpretation] Yes, Your Honour. Thank you.

17 As far as planning of any kind of crime is concerned, the Defence

18 believes that the Prosecution failed to prove beyond reasonable doubt that

19 Milorad Krnojelac participated in planning of any crime he is being

20 charged for by the indictment, nor did he participate in implementation of

21 such plan.

22 The Prosecution attempted to draw conclusions about this

23 responsibility indirectly through the Defence Exhibit D29. This document

24 shows that the Ministry put the warden in charge of enacting the procedure

25 or of the rules for the internal operation of the prison. The Prosecution

Page 8368

1 called this document "Internal Rules." The Defence believes, first of

2 all, that this term "Internal Rules" is not appropriate. Furthermore,

3 this document or creation of the rules of procedure, which was done under

4 the direction of the Ministry of Justice, pertains to the civilian

5 institutions where -- the civilian institutions where the individuals who

6 had been sentenced are incarcerated and where they undergo a process of

7 rehabilitation and resocialisation. These rules pertain to the operation

8 of the KP Dom as well as other penal institutions in peacetime.

9 Therefore, when there is no work obligation and when there is no

10 mobilisation, these rules pertain only to those institutions which are

11 under the responsibility of the Ministry of Justice. This cannot be

12 applied to a military prison, cannot be applied to a site where the Muslim

13 detainees were kept, cannot be applied to the war situation. But in this

14 case as well, Milorad Krnojelac, due to his inexperience and lack of

15 knowledge where these matters are concerned, took to a meeting with the

16 Ministry of Justice an old set of rules of operation dating back to the

17 pre-war time. This set of rules could not have been used in the newly

18 created situation. It is clear that the accused did not determine, nor

19 did he implement, any kind of rules of conduct that would be of importance

20 to this indictment.

21 The Prosecution failed to prove beyond reasonable doubt that the

22 accused issued any kind of orders to anyone from the military prison

23 structure. They also failed to prove that the accused had an authority to

24 issue such orders. Furthermore, the accused is charged for aiding and

25 abetting the commission of crimes, torture, and murder and cruel

Page 8369

1 treatment. In its final brief, the Prosecution conceded that they did not

2 prove beyond reasonable doubt that the accused was present during these

3 alleged events at night. However, the claim of the Prosecution that the

4 accused should have known about these incidents when he was at work, when

5 he came to work the following day, is simply an assumption made by the

6 Prosecution. As we have already said, the accused was not in charge of

7 the military prison. Also, the perpetrators of various murders and

8 beatings did not publicise their actions, which is quite logical. This is

9 why the Defence says that the accused had no tolerance towards the

10 perpetrators of these crimes, which could be construed to mean that he was

11 aiding and abetting these criminal acts.

12 The Prosecution, in their final brief, contends that the accused

13 regularly met with members of the Crisis Staff and Ministry of Justice

14 personnel. The Defence submit that this does not issue from the evidence

15 we have heard here. He occasionally communicated only with Radojica

16 Mladjenovic, and after he was appointed warden in July 1992, he also

17 occasionally communicated with the Minister of Justice, and this was due

18 to poor telephone communication lines and the situation that Foca was in.

19 This does not rise to the conclusion that this constituted support on the

20 part of the accused of any repressive system which would point to a clear

21 intent to commit a criminal act.

22 It has not been proven beyond a reasonable doubt that Milorad

23 Krnojelac had anything to do with torture or beatings of any kind

24 mentioned in the indictment, and especially not that it was he who

25 introduced this system. It has not been proven that Milorad Krnojelac had

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Page 8371

1 any contacts with military or political leaders, and especially not for

2 the purposes of compiling lists of persons to be beaten and tortured, nor

3 that he was in charge of the security of the prison where these detainees

4 were kept, which I have already mentioned. He was also not in charge of

5 allowing or not allowing soldiers to enter the premises of the prison.

6 Therefore, and on the basis of everything we have stated so far,

7 it is the position of the Defence that the Prosecution failed to prove

8 beyond a reasonable doubt that Milorad Krnojelac is guilty of any of the

9 counts he was charged with in the indictment pursuant to Article 7(1).

10 JUDGE HUNT: Before you go on any further, if that's the end of

11 what you want to say about the different counts, I'm not sure whether this

12 question should be directed to you or to Mr. Bakrac, but it's in relation

13 to the imprisonment. Are you in a position to answer this question? The

14 Defence case is simply that because he had no power to release the Muslim

15 detainees, he could not be found guilty of aiding and abetting the

16 wrongful imprisonment, taking up the Celebici appeal judgement point.

17 When you read the Celebici appeal judgement, it wasn't quite as narrowly

18 expressed as that. It also said where he had no active part in the

19 imprisonment, which in itself could be read in many different ways.

20 There's one piece of evidence I'd like to hear what you want to

21 say about. Your client sought the mining of the premises in order to

22 increase the security, in other words, to prevent an escape. What would

23 you say to the suggestion, which I'm putting up purely hypothetically,

24 that that was an active part in ensuring that they remained inside the

25 premises? Would that be sufficient to make him guilty of aiding and

Page 8372

1 abetting the false imprisonment or the wrongful imprisonment?

2 MR. VASIC: [Interpretation] Your Honour, the accused in his

3 evidence came to describe how he came to sign this document. This

4 document, we heard, was drafted on the urging of Savo Todovic and the

5 military command. The accused signed this document because it also

6 referred to the part of the KP Dom which was not used by the military,

7 that is, that was the back wall beyond the furniture factory, which, as

8 the accused himself put it, in the situation which prevailed at the time

9 in terms of security, could have improved the protection of property, that

10 is, the security of the furniture factory and the assets that were in it.

11 It is clear that his signature was necessary in a formal way because it

12 was the mining of a part of the property that was not under the military

13 authority, and he said that it was done in order to better secure the

14 property rather than that it had anything to do with the Muslim

15 detainees. However, if we take into account the way the mining went, that

16 is, beyond and outside of these requests, probably the military command

17 would have gone ahead and did the mining the way they did it even without

18 his signature.

19 I therefore believe that in his mind at the time, there was no

20 intent present that had anything to do with the potential escapes of

21 detainees, but what was in his mind was exclusively the protection of

22 property at the furniture factory, and the location mentioned in this

23 request I think is crucial for understanding that point.

24 JUDGE HUNT: Thank you.

25 MR. VASIC: [Interpretation] Thank you, Your Honour.

Page 8373

1 I would also like to comment on something that was brought up in

2 the oral final argument, that Mr. Krnojelac was the one who decided who

3 would go to the front and who would stay behind. Our position is that

4 this has not been proven by any single piece of evidence. Also, my

5 learned friends contended that the appearance of lice in the KP Dom was

6 due to poor hygienic conditions, whereas we heard clearly that they were

7 brought in by one of the detainees who was working at the farm.

8 Also, the contention that the witness who needed medical help

9 because of an ulcer is also unfounded. Dr. Milorad Dobrilovic, who gave

10 evidence here, said that it was he who treated this patient. And as far

11 as Mr. Esad Hodzic is concerned, it is true that he passed away, but he

12 passed away in the Foca hospital. My learned friends said that

13 Mr. Hodzic, due to his advanced age, did not fall within the category of a

14 militarily fit man in April of 1992, but this does not mean that he did

15 not voluntarily join the armed group, as is stated in the documents.

16 The Defence would also like to point out another thing that the

17 Prosecution also contended, that the conditions of detention improved

18 significantly after his departure in the summer of 1993. First of all, I

19 think that we have proven that they actually worsened after that period

20 because of hard labour. Also, in the Exhibit D138, the report of ICRC, it

21 is clear that they were prevented from entering the premises until 4th of

22 January, 1994. After the first visit of 23 June 1993, ten prisoners were

23 hidden from the ICRC personnel until 14 December 1993. Also, the

24 relations between the military and the ICRC worsened during that period,

25 because the liaison officer appointed by the military command seemed to

Page 8374

1 have suddenly become too busy in order to maintain cooperation with the

2 ICRC members.

3 During the visits in December of 1993 and January of 1994, the

4 ICRC members again noticed that the quantity and quality of food

5 deteriorated again, and the health care was more or less satisfactory.

6 So even with regular visits by the ICRC and the assistance

7 provided by it, this is the situation that was present.

8 As far as the conditions of the detained persons are concerned,

9 this was not part of responsibility of Mr. Krnojelac, and he could not

10 influence it except by his acts of goodwill.

11 Your Honours, my learned colleagues, yesterday -- sorry. I would

12 like to make another point first.

13 In the light of everything that the Defence has presented here, we

14 ask the Trial Chamber to find the accused not guilty of any of the charges

15 set out in Articles 7(1) and 7(3).

16 Taking into account the Rules of Procedure, that we also address

17 the sentencing in the same hearing, the Defence, even though we are

18 convinced of the innocence of the accused, we will still address the

19 mitigation that is required in assessing the sentence.

20 My learned colleagues compared the practice of the International

21 Tribunal and this case, and the Defence believe that it must not and it

22 should not be the practice to add numerically the counts, the various

23 counts, and what they stand for. We believe that there can be no equation

24 made between the KP Dom as it was before the war and the collection camps

25 where people were held and that these be compared to those camps in the

Page 8375












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Page 8376

1 cases of Celebici and Aleksovski, as was done by my colleagues.

2 Also, their comparison of the numbers of victims in those cases

3 and this case should not result in a discrepancy in the sentence so that a

4 sentence two and a half times larger is sought for Mr. Krnojelac than for

5 those which the Prosecution mentioned. The punishment has to be

6 commensurate to the personal responsibility, and here we heard both the

7 Prosecution and the Defence witnesses, and the Defence is of the view that

8 this range simply does not, would not reflect the facts.

9 My learned colleagues also referred to the relevant legal

10 provisions in the practice of the former SFRY, which ranges from five

11 years to death penalty. The Defence believes that the Tribunal should

12 take into account the case law of the former SFRY rather than the range of

13 sentences. I also need to point out that in the former Yugoslavia and in

14 the current Yugoslavia, the death penalty has not been implemented for

15 over 15 years.

16 As far as the aggravating circumstances which were pointed out by

17 my learned friends, I believe that the damaging consequences of certain

18 criminal acts cannot be taking as an aggravating circumstance. As far as

19 the profit, the promotion, the position of -- of a managing position, all

20 these issues have been addressed by my learned friend Mr. Bakrac. He, I

21 believe, clearly demonstrated that there were no motives of that kind

22 involved. What I'm going to address is only the fact that allegedly

23 because of his good work, he was given the position of principal.

24 I think that we have clearly demonstrated through documents that

25 the accused, after 1994, he waited for over a year for any post. And it

Page 8377

1 is also clear that he was offered the position of principal in 1994, which

2 at that time he refused. Had he been within the military structure, he

3 would have been offered a job in the military. Had he been within the

4 municipal structure, he would have been given a position there. But it is

5 true that after he left the position of warden, he was without employment

6 for a year and a half before he got the next job, and that is a fact.

7 As far as the absence of remorse is concerned, I think this was

8 also touched on by my learned friend Mr. Bakrac. The accused believes

9 that he is not guilty, but it was hard for him, and he said that in Court,

10 that he found it difficult to listen to the testimony of all the

11 witnesses, and in that sense, he is not devoid of emotions.

12 My time is slowly expiring, and I will only touch very briefly on

13 the mitigating circumstances which I think are relevant for sentencing.

14 JUDGE HUNT: Mr. Vasic, we won't hold you to the estimate of

15 11.00. If you want to continue, you may. If it's more than just a few

16 minutes, we'll take the adjournment and come back. So don't feel under

17 any constraints of time, please.

18 MR. VASIC: [Interpretation] Thank you, Your Honour. I will really

19 try to deal with the mitigating circumstances as far as I can, and if I

20 have a little bit more at the time of the break, I will ask for your

21 indulgence. Thank you.

22 It is the position of the Defence that no criminal record, which

23 was pointed out by my learned friends, and his cooperation with the

24 Prosecution. What also needs to be taken into account is the age of the

25 accused and the fact that he is a family person with four sons, nine

Page 8378

1 grandchildren. And in particular, one needs to take into account the

2 relationship or the attitude of the accused towards the persons of

3 ethnic -- of Muslim ethnic background, and a number of witnesses confirm

4 that. Some of them we have already quoted. The Defence has tendered in

5 evidence documents D158.1 and 161, which describe the character of the

6 accused by ethnic Muslims. Also what needs to be taken into account was

7 the fact that his house was burned down, that he suffered personal

8 tragedy, family tragedy with respect to two sons.

9 As to what happened in the prison, we need to point out that it

10 has nothing to do with Milorad Krnojelac and the allegations against him.

11 We also say that he was not given an opportunity to surrender, because he

12 was not aware of the indictment. The contention that he should have

13 known, because the investigators arrived there at the KP Dom to

14 investigate the crimes, does not have merit. First of all, the accused,

15 knowing what he did, had no reason to suspect that he was under

16 indictment.

17 Further, all those who were in charge of the KP Dom and the Muslim

18 detainees had left Foca; Todovic, Rasevic, Kovac. Furthermore, the

19 accused operated with the IPTF and throughout this period continued to use

20 his own name. If he could -- had he been able to imagine that he was

21 under indictment and had he -- and knowing that he had done something

22 wrong, he would have had ample opportunity to leave Foca like the others

23 did. This is why we believe that he was not given an opportunity to

24 surrender on his own will and was in this way disallowed an opportunity

25 for mitigation.

Page 8379

1 Your Honour, I may need no more than five minutes. It is 11.00

2 now.

3 JUDGE HUNT: Any problem from the court reporters or the booths?

4 Thank you very much.

5 You proceed, Mr. Vasic. The crew are cooperating very well.

6 Thank you.

7 MR. VASIC: [Interpretation] Thank you very much, Your Honour, and

8 thank you. We're very grateful to the interpreters and court reporters.

9 The fact that we presented here a letter read by my colleague - I

10 don't want to repeat the name of that individual, although that name can

11 be found in the transcript - this individual discusses the Cafe Gong and

12 his wish to go back to that cafe, and this is something that illustrates

13 very well the kind of family that the Krnojelac family is, and the

14 patriarch of that family is Mr. Milorad Krnojelac. That letter would not

15 contain so many warm emotions and such gratefulness and desire to see the

16 accused if the things were the way they were portrayed by the

17 Prosecution.

18 We would also like the Tribunal to take into account the findings

19 and the opinion of the expert psychologist. This opinion clearly

20 describes the personal qualities and personal traits of the accused, as

21 well as his reaction to the then situation, the situation in the time

22 frame relevant for the indictment.

23 He is a kind of a person that is warm, extrovert, social, wishes

24 to engage in a contact with people, accepts and treats other people with

25 trust and even has a tendency to follow the orders or opinions of others,

Page 8380












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Page 8381

1 does not go into deep analysis, does not have a pronounced aggression or

2 does not act at the spur of the moment. And in a situation when he's

3 faced with the unfamiliar circumstances, he acts with anxiety, which

4 diminishes his to assess the situation and causes vegetative

5 manifestations and diminishes the emotional potential of his personality,

6 which are not at a high level.

7 All of these circumstances, based on the view of the Defence, are

8 important and need to be taken into account when meting out a sentence.

9 In addition to that, we also need to take into account the conduct

10 of the accused in the Detention Unit, which has been without any

11 reproach. The conduct of the accused is not proportional or not in

12 accordance with the sentence required by the Prosecution. There is a huge

13 discrepancy here, especially when taking into account the entire conduct

14 of the accused and when compared to the sentence required by the

15 Prosecution.

16 Thank you, Your Honours, for having the patience to listen me out

17 and to grant me additional time even after the scheduled break.

18 JUDGE HUNT: Well, that concludes the trial part of the

19 proceedings. On behalf of the Trial Chamber, I would like to thank

20 counsel and their staff for the assistance which they have given and their

21 cooperation with the Trial Chamber and its staff during the course of the

22 trial. In particular, I would like to congratulate counsel for both

23 parties for the cooperation they have shown with each other, to an extent

24 which was entirely proper, without any sacrifice to the rights of the

25 particular party for whom they appeared. The progress of the trial has

Page 8382

1 been assisted by that cooperation to a very large extent.

2 The Trial Chamber also records its appreciation for the excellent

3 assistance which, as usual, we have received from the interpreters, the

4 court reporters, the court deputy, the ushers, and the Registry staff

5 generally.

6 The Trial Chamber reserves its judgement. We will give you ample

7 notice of when it is to be given. We will now adjourn.

8 --- Whereupon the hearing adjourned at 11.08 a.m.