Tribunal Criminal Tribunal for the Former Yugoslavia

Page 8386

1 Friday, 15 March 2002

2 [Judgement]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 11.00 a.m.

6 JUDGE HUNT: Call the case, please.

7 THE REGISTRAR: Yes, Your Honour. This is case number IT-97-25-T,

8 the Prosecutor versus Milorad Krnojelac.

9 JUDGE HUNT: Appearances, please, for the Prosecution?

10 MS. UERTZ-RETZLAFF: Your Honour, for the Prosecution, Ms. Peggy

11 Kuo, Mr. Bill Smith, Ms. Diana Dicklich as the case manager, and my name

12 is Hildegard Uertz-Retzlaff.

13 JUDGE HUNT: Thank you for the accused?

14 MR. BAKRAC: [Interpretation] Your Honour, the accused is

15 represented as before, Mihajlo Bakrac and Miroslav Vasic, attorneys at

16 law.

17 JUDGE HUNT: Thank you. Mr. Krnojelac are you able to hear the

18 proceedings in a language which you understand? No need to stand up.

19 [The accused stands up]

20 THE ACCUSED: [Interpretation] Your Honours, thank you very much.

21 But it's not so important for me whether I can understand the proceedings

22 in a language that I can understand. I think this is a special day and I

23 should have received a written statement or a notification that this case

24 is now being resolved and decided and you are now pronouncing a judgement

25 after 1.371 days.

Page 8387

1 JUDGE HUNT: I thought you'd say that at some stage,

2 Mr. Krnojelac. Sit down, please.

3 THE ACCUSED: [Interpretation] Thank you.

4 [The accused sits down]

5 JUDGE HUNT: Trial Chamber II is sitting today to deliver

6 judgement in the trial of Milorad Krnojelac. That trial arose out of

7 events at the Foca Kazneno-Popravni Dom, or the KP Dom, a large prison

8 complex situated in the town of Foca in the eastern part of

9 Bosnia-Herzegovina, where a large number of non-Serb men were detained for

10 long periods of time.

11 For the purposes of this hearing, I propose to summarise briefly

12 the issues which arose during the trial and the findings of the Trial

13 Chamber in relation to those issues. I emphasise that this is a summary

14 only, and that it forms no part of the judgement which is delivered. The

15 only authoritative account of the Trial Chamber's findings, and of its

16 reasons for those findings, is to be found in the written judgement,

17 copies of which will be made available to the parties and to the public at

18 the conclusion of this hearing.

19 The accused, Mr. Krnojelac, was the warden or the acting warden of

20 the KP Dom over a periods of some 15 months in 1992 and 1993. He stood

21 trial on charges that he was responsible for:

22 (i) crimes against humanity, consisting of persecution on political,

23 racial and/or religious grounds, torture, inhumane acts, murder,

24 imprisonment and enslavement; and

25 (ii) violations of the laws or customs of war, consisting of torture,

Page 8388

1 cruel treatment, murder and slavery.

2 The accused was originally also charged with grave breaches of the

3 Geneva Conventions of 1949, consisting of torture, wilfully causing

4 serious injury to body or health, wilful killing, unlawful confinement of

5 civilians, and wilfully causing great suffering and inhuman treatment, but

6 these charges were with drawn by the Prosecution shortly before the trial.

7 During the pleading stage, and before the trial commenced, the

8 Prosecution conceded that it was unable to establish that the accused had

9 personally participated in the events which were alleged to have occurred

10 inside the KP Dom. The Prosecution pleaded, instead, that the accused was

11 part of a joint criminal enterprise to commit the offences charged. It

12 had already pleaded that the accused had aided and abetted those who had

13 personally participated in the commission of those offences. It was upon

14 those bases of individual responsibility that the trial proceeded,

15 together with the claim that that the accused was criminally responsible

16 as a superior for the acts of his subordinates.

17 The principal issue raised by the accused at the trial was that,

18 by reason of the presence within the KP Dom of the military, the KP Dom

19 had been divided into civilian and military sections. Although he had

20 been formally appointed as the warden of the KP Dom, he said, his powers

21 as warden were limited to the civil section involving only convicted Serb

22 detainees and an economic unit. The non-Serb detainees were, he claimed,

23 the responsibility of the military command, so that he bore no

24 responsibility for any crimes committed within the KP Dom in relation to

25 those non-Serb detainees. The Trial Chamber has not accepted this claim.

Page 8389

1 It is satisfied that the accused retained all the powers of the warden of

2 the KP Dom, and that he did in fact exercise those powers, including his

3 supervisory responsibility over all subordinate personnel and detainees at

4 the KP Dom.

5 Because the Prosecution case in relation to persecution was based

6 largely upon the same actions and incidents which form the basis of the

7 other charges in the case, it is convenient to leave the remarks

8 concerning the charge of persecution to last.

9 A vast number of non-Serb civilians, the overwhelming majority of

10 whom were Muslims, had been arrested throughout Foca and its environs when

11 the conflict broke out early in 1992, and many of the male civilians were

12 transferred to the KP Dom. The Defence claimed that they were prisoners

13 of war and that their detention was on that basis lawful. The Trial

14 Chamber has not accepted this argument. A small number of detainees had

15 been combatants, but it is clear from the circumstances in which they had

16 been arrested that they had not been taken prisoners as such. Among the

17 detained, there were young and elderly, ill, wounded, physically

18 incapacitated and mentally disturbed persons. There was no suggestion in

19 the evidence that anyone had been arrested pursuant to a valid arrest

20 warrant. They were arbitrarily detained for periods ranging from four

21 months to two and a half years. None had been charged with any offence,

22 and their detention has been found to be unlawful.

23 Although the accused played no role in securing their detention,

24 and (as the Trial Chamber has found) he had no power unilaterally to order

25 or grant the release of any detainees, he nevertheless knew that their

Page 8390

1 detention was unlawful, and he also knew that his acts or omissions were

2 contributing to the maintenance of that unlawful detention by those who

3 were the principal offenders in that crime. The Trial Chamber was not,

4 however, satisfied beyond reasonable doubt that he shared the intent of

5 those principal offenders. It therefore rejected the Prosecution case

6 that he was part of a joint criminal enterprise to imprison the detainees

7 unlawfully, but it has found that he aided and abetted those principal

8 offenders in their commission of that crime.

9 The non-Serb civilian detainees were housed in cramped conditions

10 making it impossible for them to move freely or, in some instances, to

11 sleep lying down. They were isolated from the outside world and denied

12 access to their families. They were subjected to deplorable hygienic

13 conditions. They were exposed to the freezing temperatures of the winter,

14 and they were fed starvation rations which led the detainees to suffer

15 considerable weight loss ranging from 20 to 40 kilograms. Many of the

16 detainees were denied access to medical care which was available, and

17 those requiring emergency medical attention were not handled with proper

18 care. The non-Serb detainees were also subjected to a psychologically

19 exhausting regime whilst detained at the KP Dom. They were exposed to the

20 sounds of their fellow detainees being beaten and tortured, leading many

21 to fear that they would be next. Attempts made by the detainees to

22 improve their living conditions were punished harshly with beatings and

23 periods in the isolation cells. As a result of these conditions, the

24 physical and psychological health of many of the non-Serb detainees

25 deteriorated or was destroyed. The substantial cause of the death of one

Page 8391

1 such detainee was the failure to provide access to medical care, and 19

2 other detainees suffered serious physical and psychological consequences

3 as a result of the living conditions of the KP Dom. Most suffered severe

4 weight loss, many spent periods in hospital after their release, and some

5 still require constant medication and medical care. Nearly all continue

6 to suffer from some form of psychological disorder, including anxiety

7 attacks, sleeplessness, nightmares, depression and other nervous

8 conditions.

9 The accused had knowledge of the conditions under which the

10 non-Serb detainees were being held and the effects these conditions were

11 having on their physical and psychological health. He was also aware that

12 his failure to take any action as warden contributed in a substantial way

13 to the continued maintenance of these conditions, by giving encouragement

14 to the principal offenders to maintain these living conditions. However,

15 the Trial Chamber was not satisfied beyond reasonable doubt that he shared

16 the intent of those principal offenders. It has therefore rejected the

17 Prosecution case that he was part of a joint criminal enterprise in

18 relation to these living conditions, but it has found that he aided and

19 abetted those principal offenders in their commission of the crime against

20 humanity based upon those living conditions.

21 Based upon the same living conditions, the Trial Chamber has also

22 found the accused guilty of cruel treatment as a violation of the laws or

23 customs of war, again as having aided and abetted those who personally

24 participated in creating those conditions.

25 The Trial Chamber considered whether it should find the accused

Page 8392












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 8393

1 also guilty as a superior of these two crimes based upon the inhumane

2 living conditions. It is satisfied that he was aware of the participation

3 of his subordinates in the creation of those living conditions, that he

4 omitted to take any action to prevent those subordinates from maintaining

5 those living conditions and that he failed to punish his subordinates for

6 their implementation of those conditions. However, the Trial Chamber is

7 of the view that it would be inappropriate to convict the accused under

8 both heads of responsibility for the same count based on the same acts,

9 and that the criminality of the accused is better characterised as that of

10 an aider and abettor. It has nevertheless taken the accused's position as

11 a superior into account as having aggravated his offence.

12 The non-Serb civilian detainees were also systematically beaten

13 and mistreated whilst detained at the KP Dom by the KP Dom guards, and by

14 soldiers and military police coming from outside the KP Dom, for whose

15 actions the accused was not responsible but who were permitted to enter

16 the KP Dom in order to mistreat detainees in this way by the guards under

17 the control of the accused and for whose actions he was responsible. Over

18 50 of those incidents of beating were of sufficient severity as to

19 constitute inhumane acts and cruel treatment. There are also 11 incidents

20 of torture of 14 detainees, involving an intention to obtain information

21 or a confession, to punish or to discriminate.

22 The Trial Chamber is satisfied that the accused knew that non-Serb

23 detainees were being beaten and that they were otherwise being generally

24 mistreated. It did not, however, find any acceptable evidence that he had

25 entered into a joint criminal enterprise to beat the non-Serb detainees.

Page 8394

1 By reason of his knowledge of the beatings, and his failure to take any

2 appropriate measures which, as warden, he was obliged to adopt, the

3 accused nevertheless encouraged these acts by his subordinates. The Trial

4 Chamber has found him guilty in relation to the beatings as a superior,

5 being of the opinion that it was more appropriate in this instance to do

6 so than to find him guilty as an aider and abettor.

7 On the other hand, and notwithstanding that the accused saw Ekrem

8 Zekovic beaten as a punishment for his failed attempt to escape from the

9 KP Dom (an incident which did not form any part of the charges against

10 him), the Trial Chamber was not satisfied that the accused was aware that

11 the other beatings were inflicted for one of the purposes provided for in

12 the prohibition against torture, rather than being meted out purely

13 arbitrarily. He has therefore been found not guilty of torture on any

14 basis.

15 The Trial Chamber has been satisfied that, during the months of

16 June and July 1992, detainees were called out of their rooms during the

17 evening hours by the guards of the KP Dom and taken to the administration

18 building to be beaten. The beatings lasted well into the evening, and the

19 sounds of the beating and screams of the victims were clearly heard by

20 other detainees held at the KP Dom. Following the beatings, shots were

21 sometimes heard. KP Dom guards were observed taking part in the beatings,

22 and blood and bloodied instruments were seen in the rooms in which the

23 beatings occurred. Despite efforts by families, the Bosnian State

24 Commission for the Finding of Missing Persons and the International

25 Commission for the Red Cross, none of these persons was ever seen again

Page 8395

1 after being detained at the KP Dom.

2 The Trial Chamber has found that 26 persons were murdered at the

3 KP Dom in this way. Although none of the bodies of any of these persons

4 has been recovered, the Trial Chamber is satisfied beyond reasonable doubt

5 that these persons died by being beaten to death, shot, or as a result of

6 injuries inflicted by the beatings in the KP Dom. However, the Trial

7 Chamber has not been satisfied that the accused knew that his subordinates

8 were involved in the killing of the detainees, or that he should have

9 known. There was therefore no basis established for finding that the

10 accused was responsible for those murders.

11 With respect to the charges of slavery and enslavement based on

12 the allegation that the detainees were subjected to forced labour, the

13 Trial Chamber has required the Prosecution to show that the detainees had

14 no freedom of choice as to whether they would work or not whilst detained

15 at the KP Dom. Forced labour has not been accepted where the Prosecution

16 has relied solely upon a subjective belief by a detainee that he had no

17 choice, without some factual basis being demonstrated for that belief, or

18 upon a belief that he would by working be entitled to additional food or

19 to escape from his room for a time. The issue is whether the particular

20 detainee lost his choice to consent or to refuse the work he was doing.

21 The Trial Chamber has found this allegation to have been established in

22 relation to two detainees only. Those two were forced to work at mine

23 clearing, but responsibility could not be attached to the accused because

24 it was not established that the accused knew or should have known that

25 these detainees had been forced to undertake this work. For these

Page 8396

1 reasons, it became unnecessary for the Trial Chamber to consider whether

2 this forced labour constituted enslavement, in the sense that there had

3 been an intentional exercise of the powers attaching to the right of

4 ownership over these two men.

5 As stated earlier, the Prosecution case in relation to persecution

6 was based largely upon the same actions and incidents which formed the

7 basis of the other charges in the case. At this stage, therefore, it is

8 necessary to refer only to the charge of persecution as it was based upon

9 the charges which have already been established, plus one further issue

10 raised, that of persecution based upon what was alleged to be the

11 deportation and expulsion of the non-Serb detainees from the KP Dom.

12 The Trial Chamber has been dissatisfied that the imprisonment of

13 the non-Serb detainees, and the living conditions to which they were

14 subjected (which constituted inhumane acts and cruel treatment), were

15 carried out with the intent to discriminate against the non-Serb detainees

16 on religious or political grounds. Accordingly, persecution upon the

17 basis of these underlying offences was found to be established, and the

18 accused has been found to be individually responsible as an aider and

19 abettor to the principal offenders who committed the underlying offences.

20 In the exercise of its discretion, the Trial Chamber did not also enter a

21 conviction based upon the accused's responsibility as a superior for the

22 living conditions, constituting inhumane acts and cruel treatment, found

23 to have been committed on discriminatory grounds.

24 The Trial Chamber has been satisfied that only two detainees were

25 beaten on discriminatory grounds so as to amount to persecution. One of

Page 8397

1 the beatings amounted to an inhumane act and cruel treatment. The other

2 amounted to torture, but the accused was not found guilty of torture. His

3 responsibility for these two incidents as acts of persecution is therefore

4 in each case a responsibility as a superior for persecution on the basis

5 of inhumane acts and cruel treatment.

6 In relation to the additional issue raised, that of persecution

7 based upon the deportation and expulsion of the non-Serb detainees from

8 the KP Dom, the Trial Chamber has not been satisfied that the detainees

9 who had been transferred from the KP Dom had crossed the national border

10 or, where it was satisfied that they had done so, the Trial Chamber was

11 not satisfied that their deportation was forced. Accordingly, without the

12 establishment of the underlying allegations of deportation and expulsion,

13 the allegation could not be used to support a charge of persecution

14 against the accused.

15 The convictions which will therefore be entered against the

16 accused are for the crimes of:

17 (i) persecution as a crime against humanity, based upon

18 imprisonment and inhumane acts, that is, the living conditions for his

19 individual responsibility and, two of the beating incidents, as a

20 superior;

21 (ii) inhumane acts as a crime against humanity based upon the

22 beatings, as a superior;

23 (iii), cruel treatment as a violation of the laws or customs of

24 war based upon the beatings, as a superior; and

25 (iv) cruel treatment as a violation of the laws or customs of war

Page 8398

1 based upon the living conditions, for his individual responsibility.

2 Subsumed in those findings of guilt of individual responsibility

3 for persecution, but not made the subject of cumulative convictions, are

4 findings that the accused was individually responsible for imprisonment

5 and inhumane acts as crimes against humanity.

6 The Trial Chamber has adhered to all of the formal requirements

7 laid down for sentencing. They are discussed more fully in the judgement.

8 Its overriding obligation has been that of fitting the penalty to the

9 individual circumstances of the accused and to the gravity of the offences

10 for which he has been found responsible. The Trial Chamber has taken into

11 account the particular vulnerability of the direct victims, the length of

12 time over which the crimes continued during the accused's tenure as warden

13 of the KP Dom, and the extent of the long-term physical, psychological and

14 emotional suffering of those victims.

15 The accused has expressed no regret for the part he played in the

16 commission of these crimes, and only insubstantial regret that the

17 offences had taken place. This has been a case in which the accused chose

18 to bury his head in the sand, and to ignore the responsibilities and power

19 which he had as warden of the KP Dom to improve the situation of the

20 non-Serb detainees. The sentence in this case is intended to make it

21 clear to others who (like the accused) seek to avoid the responsibilities

22 of command which accompany the position which they have accepted that

23 their failure to carry out those responsibilities will still be punished.

24 On the other hand, the Trial Chamber has also taken into account

25 the fact that the accused, prior to his appointment as warden of the

Page 8399

1 KP Dom, had been employed as a mathematics teacher for most of his working

2 life. He was not well experienced, and perhaps not well suited, for the

3 task which he undertook. Moreover, unlike other persons who filled

4 roughly similar positions as the accused did and who have been dealt with

5 by this Tribunal, his participation in these crimes was limited to his

6 aiding and abetting the criminality of others. Even then, his

7 encouragement to those who did participate in these crimes was largely by

8 reason of his inaction, his failure to exercise his powers as warden,

9 despite his knowledge that the crimes were being committed. There was

10 also some evidence that the accused did act to help individual detainees

11 who had approached him with particular requests, and of attempts by the

12 accused to improve the condition of all detainees by securing more food

13 for the KP Dom.

14 The accused is accordingly convicted of the crimes charged in:

15 Count 1, persecution as a crime against humanity (based upon

16 imprisonment, living conditions, and beatings), both for his individual

17 responsibility and as a superior;

18 Count 5, inhumane acts as a crime against humanity (based upon

19 beatings), as a superior;

20 Count 7, cruel treatment as a violation of the laws or customs of

21 war (based upon beatings), as a superior; and

22 Count 15, cruel treatment as a violation of the laws or customs of

23 war (based upon living conditions), for his individual responsibility.

24 The accused is acquitted of the crimes charged in Counts 2, 4, 8,

25 10, 11, 13, 16 and 18.

Page 8400

1 Mr. Krnojelac, will you stand up, please

2 [The accused stands up]

3 Milorad Krnojelac, you are sentenced to a single sentence

4 of imprisonment for seven and a half years. You are entitled to credit

5 toward service of that sentence for the period of three years and nine

6 months you have spent in custody, together with any period you will serve

7 in custody pending the President's determination as to the State where the

8 sentence is to be served. You are to remain in custody until such

9 determination is made.

10 The Trial Chamber will now adjourn.

11 --- Whereupon the hearing adjourned at 11.29 a.m.