The Prosecutor v. Milorad Krnojelac - Case No. IT-97-25-T

Judgment

15 March 2002
Trial Chamber II (Judges Hunt [Presiding], Mumba and Daqun)

Article 7(1) of the Statute - Individual criminal responsibility - Distinction between a co-perpetrator and an accomplice - Joint criminal enterprise - Definition of a co-perpetrator - Definition of principal offender - Article 5(e) of the Statute - Imprisonment as a crime against humanity - Cruel treatment and inhumane acts - Definition - Articles 3 and 5(i) of the Statute - Enslavement as a crime against humanity - Threshold of severity for torture - Murder conviction in the absence of body - Article 5(h) of the Statute - Persecution - Deportation as persecution - Sentencing factors.

(1) Joint criminal enterprise: a person participates in a joint criminal enterprise either:

(a) by participating directly in the commission of the agreed crime itself (as a principal offender);
(b) by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime; or
(c) by acting in furtherance of a particular system in which the crime is committed by reason of the accused's position of authority or function, and with knowledge of the nature of that system and intent to further that system.

(2) Imprisonment as a crime against humanity: any form of arbitrary physical deprivation of liberty of an individual may constitute imprisonment under Article 5(e) of the Statute as long as the other requirements of the crime are fulfilled. For the purpose of Article 5(e) of the Statute, the deprivation of an individual's liberty is arbitrary if it is imposed without due process of law. Under Article 5(e) of the Statute, a deprivation of an individual's liberty is arbitrary and therefore unlawful if no legal basis can be called on to justify the initial deprivation of liberty. If national law is relied on as justification, the relevant provisions must not violate international law. The national law itself must not be arbitrary and the enforcement of this law in a given case must not take place arbitrarily. In addition, the legal basis for the initial deprivation of liberty must apply throughout the period of imprisonment. If at any time the initial legal basis ceases to apply, the initially lawful deprivation of liberty may become unlawful at that time and be regarded as arbitrary imprisonment.

(3) Cruel treatment and inhumane acts:

(a) The mere description of the assaults as "beatings" does not by itself establish that the assaults constituted "cruel treatment" or "inhumane acts" pursuant to Articles 3 and 5(i) of the Statute.
(b) The infliction of severe mental or physical pain must aim at attaining a certain result or purpose in order to qualify as torture pursuant to Article 3 or Article 5 of the Statute.
(c) Solitary confinement and the deliberate deprivation of sufficient food could cause great physical or mental suffering of the sort envisaged by this offence in view of their strictness, their duration and the object pursued. The act of putting or keeping someone in solitary confinement or deliberately depriving someone of sufficient food may amount to torture to the extent that the confinement of the victim or the deliberate deprivation can be shown to pursue one of the prohibited purposes of torture and to have caused the victim severe pain or suffering.

(4) Murder: proof beyond reasonable doubt that a person was murdered does not necessarily require proof that the dead body of that person was recovered. The fact of a victim's death can be inferred circumstantially from all of the evidence presented to the Trial Chamber. All that is required to be established from the evidence is that the only reasonable inference from the evidence is that the victim is dead as a result.

(5) Enslavement as a crime against humanity: where the fundamental guarantees laid down in Article 4 of Additional Protocol II to the four Geneva Conventions of 1949 are violated, performance of the labour may be treated as an indication of enslavement. With respect to the interpretation to be attached to the provisions of Article 5 of the Statute, the word "similar" means that the working conditions and safeguards need not be exactly the same as those enjoyed by the local civilian population. The terms "conditions" and "safeguards" mean that such persons need not necessarily be remunerated by wages for all work they are made to do. The absence of any explicit reference to "wages" in Article 5 of the Statute in contrast to the explicit requirement that wages be paid in Articles 40, 51 and 95 of the fourth Geneva Convention requires the Trial Chamber to determine on a case by case basis whether labour performed should have been compensated in some way.

(6) Persecution:

(a) The crime of persecution consists of an act or omission which:

(i) discriminates in fact and which denies or infringes on a fundamental right laid down in international customary or treaty law (the actus reus); and
(ii) was carried out deliberately with the intention to discriminate on one of the listed grounds specifically race, religion or politics (the mens rea).

(b) The discriminatory elements of both the actus reus and the mens rea make the crime of persecution unique.
(c) The discriminatory intent must relate to the specific act charged as persecution rather than the attack in general.

(7) Sentencing: the Trial Chamber can take into account the accused's position as a superior as a factor aggravating his criminal responsibility under Article 7(1) of the Statute. It can also take into account his good conduct in the Detention Unit since his arrest and give credit to the accused for the extent to which his Counsel co-operated with the Trial Chamber and with the Prosecution in the efficient conduct of the trial.

Procedural Background

The trial of Milorad Krnojelac relates to events at the Foca Kazneno-Popravni Dom (hereinafter the "KP Dom"), a large prison complex located in the town of Foca in eastern Bosnia and Herzegovina where many non-Serb men were detained for long periods.

The accused was the warden or acting warden of the KP Dom over a period of some fifteen months in 1992 and 1993. The Office of the Prosecutor indicted him for:

(1) crimes against humanity consisting of persecution on political, racial and/or religious grounds, torture, inhumane acts, murder, imprisonment and enslavement; and
(2) violations of the laws and customs of war consisting of torture, cruel treatment, murder and slavery

During the pre-trial stage and before the trial, the Prosecution conceded that it could not establish that the accused personally participated in the events alleged to have occurred inside the KP Dom but argued that he took part in a joint criminal enterprise to commit the offences charged. The Prosecution had already claimed that the accused had aided and abetted those who personally participated in the commission of those offences. The trial proceeded on the basis of individual responsibility and the claim that the accused, on the basis of superior responsibility, was criminally responsible for the acts of his subordinates.

The Judgment

The Trial Chamber found Milorad Krnojelac guilty of persecution and inhumane acts as crimes against humanity and cruel treatment as a violation of the laws or customs of war and handed down a single sentence1 of seven and a half years' imprisonment2.

The Reasoning

Individual Criminal responsibility under Article 7(1) of the Statute

The Trial Chamber referred to the Krstic and Kvocka et al. Trial Chamber Judgements and stated that it did not hold the same view "as to the need to fit the acts of the particular case into specific categories [of offenders] for the purposes of sentencing." The Trial Chamber found that there are "circumstances in which a participant in a joint criminal enterprise will deserve greater punishment than the principal offender deserves." It stated that "[c]ategorising offenders may be of assistance" but that "the particular category selected cannot affect the maximum sentence which may be imposed" and that "it does not compel the length of sentences which will be appropriate in the particular case." Moreover, Trial Chamber II did not accept the validity of the distinction which Trial Chamber I "sought to draw between a co-perpetrator and an accomplice."3 It preferred to follow the opinion of the Appeals Chamber in The Prosecutor v. Dusko Tadic4 that "the liability of the participant in a joint criminal enterprise who was not the principal offender is that of an accomplice." For convenience, the Trial Chamber however adopted "the expression 'co-perpetrator' (as meaning a type of accomplice) when referring to a participant in a joint criminal enterprise who was not the principal offender."5

It found that a person participates in a joint criminal enterprise either:

(1) by participating directly in the commission of the agreed crime itself (as a principal offender);
(2) by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime; or
(3) by acting in furtherance of a particular system in which the crime is committed by reason of the accused's position of authority or function, and with knowledge of the nature of that system and intent to further that system.

The Trial Chamber also preferred to use the term principal offender to make it clear that only the person who physically carries out the crime personally commits the crime6.

The accused's position as warden

The principal issue raised by the accused at the trial was that, by reason of the presence within the KP Dom of the military, the KP Dom had been divided into civilian and military sections. Although Milorad Krnojelac had been formally appointed as the warden of the KP Dom, he contended that his powers as warden were limited to the civil section involving only convicted Serb detainees and an economic unit. The accused further claimed that non-Serb detainees were the responsibility of the Military Command so that he bore no responsibility for any crimes committed within the KP Dom in relation to those non-Serb detainees. The Trial Chamber did not accept this claim. It was satisfied that the accused retained all the powers of the warden of the KP Dom and that he did in fact exercise them as well as his "supervisory responsibility over all subordinate personnel and detainees at the KP Dom."7 However, the Trial Chamber accepted that "the powers of a warden within a prison system [we]re not unlimited."8

Imprisonment

The Trial Chamber referred to the Kordic and Cerkez Trial Chamber Judgement and stated that it shared the view that imprisonment as a crime against humanity pursuant to Article 5 of the Statute9 may be established when three criteria are met. However, the Trial Chamber considered that "as a crime against humanity, the definition of imprisonment is not restricted by the grave breaches provisions of the Geneva Conventions." It was "thus not satisfied that imprisonment as a crime against humanity can only be established if the requirements of unlawful confinement pursuant to Article 2 [of the Statute]10 are met."11 The Trial Chamber expressed "the view that any form of arbitrary physical deprivation of liberty of an individual may constitute imprisonment under Article 5(e) [of the Statute] as long as the other requirements of the crime are fulfilled."12 It held that for the purpose of Article 5(e) of the Statute, "the deprivation of an individual's liberty is arbitrary if it is imposed without due process of law."13

The Trial Chamber also expressed the view that under Article 5(e) of the Statute, "a deprivation of an individual's liberty will be arbitrary and, therefore, unlawful if no legal basis can be called upon to justify the initial deprivation of liberty." It added that if national law is relied on "as justification, the relevant provisions must not violate international law." The Trial Chamber specified that "the national law itself must not be arbitrary and the enforcement of this law in a given case must not take place arbitrarily."14 In addition, it held that "the legal basis for the initial deprivation of liberty must apply throughout the period of imprisonment." If at any time the initial legal basis ceases to apply, the Trial Chamber considered that "the initially lawful deprivation of liberty may become unlawful at that time and be regarded as arbitrary imprisonment." To establish the crime of imprisonment as a crime against humanity under Article 5(e) of the Statute, the Trial Chamber accordingly found that the following elements must be established in the circumstances of this case:

(1) an individual is deprived of his or her liberty;
(2) the deprivation of liberty is imposed arbitrarily, that is, no legal basis can be invoked to justify the deprivation of liberty;
(3) the act or omission by which the individual is deprived of his or her physical liberty is performed by the accused or a person or persons for whom the accused bears criminal responsibility with the intent to deprive the individual arbitrarily of his or her physical liberty or in the reasonable knowledge that his act or omission is likely to cause arbitrary deprivation of physical liberty.

The Trial Chamber found that a vast number of non-Serb civilians - the overwhelming majority of whom were Muslims - had been arrested throughout Foca and its environs when the conflict broke out early in 1992 and that many of the male civilians were transferred to the KP Dom15. The Defence claimed that they were prisoners of war and that their detention was lawful on that basis. The Trial Chamber did not accept this argument. A small number of detainees had been combatants but it was clear from the circumstances in which they were arrested that they had not been taken prisoners as such16. Young and elderly, ill, wounded, physically incapacitated and mentally disturbed persons were among the detainees17. There was no suggestion in the evidence that anyone was arrested pursuant to a valid arrest warrant. They were arbitrarily detained for periods ranging from four months to two and a half years18. None was charged with any offence and the Trial Chamber found their detention unlawful19.

Although the accused played no role in their detention and - as the Trial Chamber found - had no unilateral power to order or grant the release of any detainees, it was satisfied that he knew that their detention was unlawful and that "his acts or omissions were contributing to the maintenance of that unlawful detention by the principal offenders" in the crime20. The Trial Chamber was however not satisfied beyond reasonable doubt that he shared the intent of the principal offenders and rejected the Prosecution argument that he took part in a joint criminal enterprise to imprison the detainees unlawfully. It did however find that he aided and abetted the principal offenders in the commission of "the joint criminal enterprise to illegally imprison the non-Serb detainees pursuant to Article 7(1) of the Statute."21

Inhumane acts as a crime against humanity (based on living conditions)

The Trial Chamber adopted "the following definition for the offences of cruel treatment and inhumane acts as charged under Articles 322 and 5" of the Statute. It found that "[t]he elements to be proved are: the occurrence of an act or omission of similar seriousness to the other enumerated crimes under the Article concerned;

(1) the act or omission causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity; and
(2) the act or omission is performed deliberately by the accused or a person or persons for whose acts or omissions he bears criminal responsibility."23

The Trial Chamber considered that the non-Serb civilian detainees were housed in cramped conditions making it impossible for them to move freely or in some instances to sleep lying down. They were isolated from the outside world and denied access to their families24. They were subject to deplorable hygienic conditions25. They were exposed to the freezing temperatures of the winter and fed starvation rations which led the detainees to suffer considerable weight loss26. Many of the detainees were denied access to medical care which was available and those requiring emergency medical attention were not handled properly27. The non-Serb detainees were also subjected to a psychologically exhausting regime whilst detained at the KP Dom28. The Trial Chamber was satisfied that "the physical and psychological health of many of the non-Serb detainees deteriorated or was destroyed as a result of the living conditions accepted as having existed at the KP Dom"29. The substantial cause of the death of one such detainee was the failure to provide access to medical care and nineteen other detainees suffered serious physical and psychological consequences as a result of the living conditions in the KP Dom. Nearly all continue to suffer from some form of psychological disorder including anxiety attacks, sleeplessness, nightmares, depression or other nervous conditions30.

The Trial Chamber was satisfied that the accused knew of the conditions under which the non-Serb detainees were being held and the effects of those conditions on their physical and psychological health31. He was also aware that his failure to take any action as warden "contributed in a substantial way to the continued maintenance of these conditions" by giving the principal offenders encouragement to maintain the living conditions32. However, the Trial Chamber was not satisfied beyond reasonable doubt that he shared the intent of those. It therefore rejected the Prosecution case that he took part in a joint criminal enterprise in relation to the living conditions but found that he aided and abetted the principal offenders in the commission of the crime against humanity33.

Cruel treatment as a violation of the laws or customs of war (based on the living conditions)

The Trial Chamber emphasised that "the mere description of the assaults as 'beatings' does not by itself establish that the assaults constituted 'cruel treatment' or 'inhumane acts'" pursuant to Articles 3 and 5(i) of the Statute.

It noted that "'[t]orture' constitutes one of the most serious attacks upon a person's mental or physical integrity." The Trial Chamber deemed that "[t]orture as a criminal offence is not a gratuitous act of violence" and "aims, through the infliction of severe mental or physical pain, to attain a certain result or purpose." It concluded that "in the absence of such purpose or goal, even very severe infliction of pain would not qualify as torture pursuant to Article 3 or Article 5 of the Statute."

The Trial Chamber made it clear that "[s]olitary confinement is not, in and of itself, a form of torture." However, in view of its strictness, its duration and the object pursued, it considered that "solitary confinement could cause great physical or mental suffering of the sort envisaged by this offence." To the extent that the confinement of the victim can be shown to pursue one of the prohibited purposes of torture and to have caused the victim severe pain or suffering, it held that "the act of putting or keeping someone in solitary confinement may amount to torture." It specified that "[t]he same is true of the deliberate deprivation of sufficient food."34

The Trial Chamber then examined the mens rea of torture. It reiterated that the act or omission must aim at obtaining information or a confession or at punishing, intimidating or coercing the victim or third person or at discriminating on any ground against the victim or third person. The Trial Chamber expressed "the opinion that, although other purposes may come to be regarded as prohibited under the torture provision in due course, they have not as yet reached customary status. In particular, it noted that "the purpose to 'humiliate' the victim" mentioned in the Judgement of Trial Chamber II of 10 December 1998 in the case The Prosecutor v. Anto Furundzija35 and in the Kvocka et al. Trial Chamber Judgement36 "is not expressly mentioned in any of the principal international instruments prohibiting torture." The Trial Chamber also noted that "[n]or is there a clear jurisprudential disposition towards its recognition as an illegitimate purpose." It acknowledged that "[t]here may be a tendency, particularly in the field of human rights, towards the enlargement of the list of prohibited purposes" but reiterated that "the Trial Chamber must apply customary international humanitarian law as it finds it to have been at the time when the crimes charged were alleged to have been committed." In light of the principle of legality, it referred to the Furundzija Trial Chamber Judgement and held that "the proposition that 'the primary purpose of [humanitarian law] is to safeguard human dignity' is not sufficient to permit the court to introduce, as part of the mens rea, a new and additional prohibited purpose, which would in effect enlarge the scope of the criminal prohibition against torture beyond what it was at the time relevant to the indictment under consideration."

The Trial Chamber underscored that "[w]ith respect to incidents of beatings during interrogation charged as torture, the Prosecution must demonstrate that the principal offender intended to achieve one of the prohibited purposes." It emphasised that "[a]s an evidentiary matter, the mere statement that the victim was 'taken for interrogation' or 'to give a statement' is an insufficient basis by itself for the Trial Chamber to conclude that the purpose behind the infliction of pain was to obtain information or a confession." The Trial Chamber insisted that "[t]he Prosecution must establish that the principal offender did in fact interrogate or try to obtain information or a confession from the victim or a third person."

Based on the same living conditions, the Trial Chamber found the accused guilty of cruel treatment as a violation of the laws or customs of war because, once again, he aided and abetted those who personally participated in creating the conditions.

The Trial Chamber considered whether it should also find the accused guilty, as a superior, of the two crimes based on the inhumane living conditions. It was satisfied that he was aware of the participation of his subordinates in the creation of the living conditions, that he failed to take any action to prevent the subordinates from maintaining the living conditions and to punish his subordinates for their implementation of those conditions. However, the Trial Chamber expressed the view that it would be inappropriate to convict the accused under both heads of responsibility for the same count based on the same acts and that the criminality of the accused is better characterised as that of an aider and abettor37. Nevertheless, it considered that the accused's position as a superior aggravated his offence.

Cruel treatment, inhumane acts and torture (based on beatings)

The Office of the Prosecutor charged Milorad Krnojelac with torture and inhumane acts as crimes against humanity as well as torture and cruel treatment as violations of the laws and customs of war in respect of beatings.

Whilst detained at the KP Dom, the Trial Chamber found that the non-Serb civilian detainees were also systematically beaten and mistreated by the KP Dom guards, soldiers and military police from outside. It considered that the accused was not responsible for their acts but they were permitted to enter the KP Dom to mistreat detainees by the guards under the control of the accused who was responsible for their acts. Over fifty of the beatings were sufficiently severe to constitute inhumane acts and cruel treatment. There were also eleven incidents of torture of fourteen detainees involving an intention to obtain information or a confession, to punish or to discriminate.

The Trial Chamber was satisfied that the accused knew that non-Serb detainees were being beaten and otherwise generally mistreated. It did not however find any acceptable evidence that he had entered into a joint criminal enterprise to beat the non-Serb detainees. By reason of his knowledge of the beatings and his failure to take any appropriate measures which, as warden, he was obliged to do, the accused encouraged these acts by his subordinates. The Trial Chamber found him guilty of the beatings as a superior and expressed the opinion that it was more appropriate in this instance to find him guilty as a superior than as an aider and abettor for the crimes of inhumane acts pursuant to Article 5(i) of the Statute and cruel treatment pursuant to Article 3 thereof38.

Although the accused saw Ekrem Zekovic beaten as a punishment for his failed attempt to escape from the KP Dom (an incident which did not form any part of the charges against him), the Trial Chamber was not satisfied that the accused "knew that other beatings were inflicted for one of the purposes provided for in the prohibition against torture, rather than being meted out purely arbitrarily."39 He was therefore found not guilty of torture on any basis.

Murder

The Trial Chamber specified that "[p]roof beyond reasonable doubt that a person was murdered does not necessarily require proof that the dead body of that person has been recovered" and that "the fact of a victim's death can be inferred circumstantially from all of the evidence presented to the Trial Chamber." It concluded that "[a]ll that is required to be established from that evidence is that the only reasonable inference from the evidence is that the victim is dead as a result of what occurred in the KP Dom."40

The Trial Chamber also examined the death of a person who had allegedly committed suicide in an isolation cell. The Prosecution charged Milorad Krnojelac with murder based on acts and omissions which allegedly caused the suicide, i.e. the beating, the subsequent denial of medical treatment and the confinement of the victim to an isolation cell. The Prosecution contended that the situation made it possible for the accused or those for whom he bears criminal responsibility to foresee that the victim would kill himself41.

The Trial Chamber considered that "[t]he crucial issues are causation and intent." It found that "[t]he relevant act or omission by the Accused or by those for whose acts or omissions the Accused bears criminal responsibility must have caused the suicide of the victim and the Accused, or those for whom he bears criminal responsibility, must have intended by that act or omission to cause the suicide of the victim, or have known that the suicide of the victim was a likely and foreseeable result of the act or omission." The Trial Chamber deemed that "[t]he Accused cannot be held criminally liable unless the acts or omissions for which he bears criminal responsibility induced the victim to take action which resulted in his death and that his suicide was either intended, or was an action of a type which a reasonable person could have foreseen as a consequence of the conduct of the Accused, or of those for whom he bears criminal responsibility."42

The Trial Chamber was satisfied that in June and July 1992 detainees were called out of their rooms during the evening hours by the guards of the KP Dom and taken to the administration building for beatings which lasted well into the evening. Other detainees at the KP Dom clearly heard the sounds of the beatings and screams of the victims. Shots were sometimes heard. KP Dom guards were observed taking part in the beatings, and blood and bloodied instruments were seen in the rooms where they occurred. Despite efforts by families, the Bosnian State Commission for the Finding of Missing Persons and the International Committee of the Red Cross, none of these persons was ever seen again after being detained at the KP Dom.

The Trial Chamber found that twenty-six persons were murdered in this way at the KP Dom. Although none of the bodies of any of these persons was recovered, the Trial Chamber was satisfied beyond reasonable doubt that the persons were beaten to death, shot or died as a result of injuries inflicted in the KP Dom. However, the Trial Chamber was not satisfied that the accused knew that his subordinates were involved in the killing of the detainees or that he should have known. No basis was established for finding that the accused was responsible for the murders.

Enslavement

Where the fundamental guarantees laid down in Article 4 of Additional Protocol II to the four Geneva Conventions of 194943 are violated, the Trial Chamber found that "performance of that labour may be treated as an indication of enslavement." It then turned to the interpretation to be attached to the provisions of Article 5 of the Statute and considered that "the word 'similar' means that the working conditions and safeguards need not be exactly the same as those enjoyed by the local civilian population." The Trial Chamber added that "[t]he terms 'conditions' and 'safeguards' mean that such persons need not necessarily be remunerated by wages for all work they are made to do." It held that the absence of any explicit reference to "wages" in Article 5 of the Statute "in contrast to the explicit requirement that wages be paid in Geneva Convention IV Articles 40, 51 and 95, requires the Trial Chamber to determine on a case by case basis whether labour performed should have been compensated in some way."44

The Trial Chamber examined the charges of slavery and enslavement based on the allegation that the detainees were subjected to forced labour. It required that the Prosecution demonstrate that the detainees had no freedom of choice as to whether they would work while detained at the KP Dom. Forced labour was not accepted where the Prosecution relied solely on a subjective belief of a detainee that he had no choice without some factual basis being adduced for that belief or for the belief that he would, by working, be entitled to additional food or to escape from his room for a time. The issue was to establish whether the particular detainee lost his choice to consent or to refuse the work. In considering whether an individual detainee was forced to work, the Trial Chamber regarded the following factors as "relevant: the substantially uncompensated aspect of the labour performed, the vulnerable position in which the detainees found themselves, the allegations that detainees who were unable or unwilling to work were either forced to or put in solitary confinement, claims of longer term consequences of the labour, the fact of detention and the inhumane conditions in the KP Dom."45

The Trial Chamber found the allegation to have been established for two detainees only. Both were forced to work on mine clearing but responsibility could not be attached to Milorad Krnojelac because it was not established that he knew or should have known that the detainees had been forced to do this work. For these reasons, the Trial Chamber did not have to consider whether such forced labour constituted enslavement in the sense that there had been an intentional exercise of the powers attaching to the right of ownership over the two men. The Trial Chamber acquitted Milorad Krnojelac on the two counts of enslavement.

Persecution

The Trial Chamber held that the crime of persecution consists of an act or omission which:

(1) discriminates in fact and which denies or infringes on a fundamental right laid down in international customary or treaty law (the actus reus); and
(2) was carried out deliberately with the intention to discriminate on one of the listed grounds specifically race, religion or politics (the mens rea).

The Trial Chamber noted that the Kvocka Trial Chamber Judgement had rejected "the need for discriminatory consequences"46 and Trial Chamber II added that "[n]o authority was cited for this approach". It stated that it did not find that Judgement "persuasive". In addition to the Tribunal's own case-law47, the Trial Chamber considered that "logic argues in favour of a requirement that the act be discriminatory in fact."48

In addition, it held that "[t]he crime of persecution also derives its unique character from the requirement of a specific discriminatory intent." Unlike the Tadic49 and Akayesu50 Appeals Chamber Judgements, the Trial Chamber found that the discriminatory elements of both the actus reus and the mens rea make the crime of persecution unique. It also held that "[t]he discriminatory intent must relate to the specific act charged as persecution rather than the attack in general"51.

The Trial Chamber reiterated that the Prosecution case on persecution was based largely on the same actions and incidents which formed the basis of the other charges. At this stage it was therefore necessary to refer only to the charge of persecution because it was based on the charges already established in addition to one further issue raised, i.e. that of persecution based on alleged deportation and expulsion of the non-Serb detainees from the KP Dom.

The Trial Chamber was satisfied that the imprisonment of the non-Serb detainees and the living conditions to which they were subjected - which constituted inhumane acts and cruel treatment - were "carried out with the intent to discriminate against the non-Serb detainees" on religious or political grounds52. Accordingly, persecution on the basis of these underlying offences was found to have been established and the accused was found individually responsible as an aider and abettor to the principal offenders who committed the underlying offences53. In the exercise of its discretion, the Trial Chamber did not enter a conviction based on the accused's responsibility as a superior for the living conditions which constituted cruel treatment and inhumane acts and which were found to have been committed on discriminatory grounds. However, the Trial Chamber stated that it would "take into account the Accused's position as a superior as a factor aggravating his criminal responsibility under Article 7(1)" of the Statute54.

The Trial Chamber was satisfied that only two detainees were beaten on discriminatory grounds amounting to persecution. One of the beatings constituted an inhumane act and cruel treatment. The other amounted to torture but the accused was not found guilty thereof55. His responsibility for both incidents as acts of persecution was, in each case, responsibility as a superior for persecution on the basis of inhumane acts and cruel treatment56.

The Trial Chamber examined the additional issue raised, i.e. that of persecution based on the deportation and expulsion of the non-Serb detainees from the KP Dom. It considered that the essential element of deportation is that "the displacement be involuntary in nature, where the relevant persons had no real choice." The Trial Chamber noted that while expulsion is not clearly defined "within the context of international criminal law, the concept does form part of the definition of deportation, which suggests that it requires displacement across national boundaries."57

The Trial Chamber was not satisfied that the detainees transferred from the KP Dom had crossed a national border. When convinced that they had done so, it was not satisfied that the deportation was forced. Accordingly, without the establishment of the underlying allegations of deportation and expulsion, the allegation could not be used to support a charge of persecution.

Sentencing

The Trial Chamber did "not accept that the Accused played any particularly significant role in the broader context of this conflict." It found that "he held a fairly senior position in Foca" but that "his crimes were geographically limited" and that there was "no evidence that his specific offences affected other perpetrators of violations of international humanitarian law or other victims of such crimes within that broader context." Nevertheless, the Trial Chamber reiterated that the accused was "found responsible for particularly serious offences against particularly vulnerable persons" and that "[t]he crimes continued over a substantial period." The Trial Chamber considered this element when determining the gravity of the offences58.

It considered that the effects of the crime on relatives of the immediate victims "are irrelevant to the culpability of the offender and that it would be unfair to consider such effects in determining a sentence." The Trial Chamber added that consideration of the consequences of a crime on "the victim who is directly injured by it is, however, always relevant to the sentencing of the offender." It concluded that "[w]here such consequences are part of the definition of the offence, they may not be considered as an aggravating circumstance in imposing sentence" but that "the extent of the long-term physical, psychological and emotional suffering of the immediate victims is relevant to the gravity of the offences."59

The Trial Chamber noted that the accused had "expressed no regret for the part he played in the commission of the crimes and only insubstantial regret that the offences had taken place."60

The Trial Chamber considered that "the Accused's aiding and abetting of the cruel treatment and persecution of the detainees is aggravated by the fact that he held the most senior position in the KP Dom." It specified that the accused chose to ignore his responsibilities and power "as warden of the KP Dom to improve the situation of the non-Serb detainees." The Trial Chamber held that "[t]he sentence in this case must make it clear to others who (like the Accused) seek to avoid the responsibilities of command which accompany the position which they have accepted that their failure to carry out those responsibilities will still be punished." It added that "[t]he extent of that aggravation in the present case must nevertheless be tempered to at least some extent by two possibly countervailing factors."61

The Trial Chamber took "into account the Accused's good conduct in the Detention Unit since his arrest."62 It gave "credit to the Accused for the extent to which his Counsel co-operated with it and with the Prosecution in the efficient conduct of the trial."63

With great caution, the Trial Chamber considered the sentences imposed on Zlatko Aleksovski, Zdravko Mucic and Miroslav Kvocka64 "who could be said to have been, at least to any significant extent, in circumstances which could be regarded as generally similar to those" of the accused65. The final matter which the Trial Chamber examined in sentencing was the fact that Milorad Krnojelac was 62 years old66.

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1. Regarding single sentences, see also The Prosecutor v. Jean Kambanda, Case No. ICTR-97-23-T, Trial Chamber I, Judgement, 4 September 1998; The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Trial Chamber I, Judgement, 2 October 1998; The Prosecutor v. Georges Anderson Nderubumve Rutaganda, Case No. ICTR-96-3-T, Trial Chamber I, Judgement and Sentence, 6 December 1999 (hereinafter the "Rutaganda Trial Chamber Judgement and Sentence"); The Prosecutor v. Goran Jelisic ("Brcko"), Case No. IT-95-10-T, Trial Chamber I, Judgement, 14 December 1999 (hereinafter the "Jelisic Trial Chamber Judgement", summarised in Judicial Supplement No. 10); The Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, Trial Chamber I, Judgement and Sentence, 27 January 2000; The Prosecutor v. Omar Serushago, Case No. ICTR-98-39-S, Trial Chamber I, Sentence, 5 February 2000; The Prosecutor v. Tihomir Blaskic ("Lasva River Valley"), Case No. IT-95-14-2-T, Trial Chamber I, Judgement, 3 March 2000 (hereinafter the "Blaskic Trial Chamber Judgement", summarised in Judicial Supplement No. 13); The Prosecutor v. Jean Kambanda, Case No. ICTR-97-23-A, Appeals Chamber, Judgement, 19 October 2000, para. 119; The Prosecutor v. Dragoljub Kunarac et al. ("Foca"), Case No. IT-96-23-T & IT-96-23/1-T, Trial Chamber II, Judgement, 22 February 2001 (summarised in Judicial Supplement No. 23); The Prosecutor v. Dario Kordic and Mario Cerkez ("Lasva River Valley"), Case No. IT-95-14/2-T, Trial Chamber III, 26 February 2001 (hereinafter the "Kordic and Cerkez Trial Chamber Judgement", summarised in Judicial Supplement No. 23); The Prosecutor v. Radislav Krstic ("Srebrenica-Drina Corps"), Case No. IT-98-33-T, Trial Chamber I, Judgement, 2 August 2001 (hereinafter the "Krstic Trial Chamber Judgement, summarised in Judicial Supplement No. 27); The Prosecutor v. Miroslav Kvocka et al. ("Omarska, Keraterm & Trnopolje Camps"), Case No. IT-98-30/1-T, Trial Chamber I, Judgement, 2 November 2001 (hereinafter the "Kvocka et al. Trial Chamber Judgement", summarised in Judicial Supplement No. 29).
2. Paras. 504 and 536.
3. Kvocka et al. Trial Chamber Judgement, para. 282.
4. The Prosecutor v. Dusko Tadic ("Prijedor"), Case No. IT-94-1-A, Appeals Chamber, Judgement, 15 July 1999 (hereinafter the "Tadic Appeals Chamber Judgement", summarised in Judicial Supplement No. 6), para. 229.
5. Para. 77.
6. Footnote 236.
7. Para. 107.
8. Para. 104
9. "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:

(a) murder;
(b) extermination;
(c) enslavement;
(d) deportation;
(e) imprisonment;
(f) torture;
(g) rape;
(h) persecutions on political, racial and religious grounds;
(i) other inhumane acts."

10. "The International Tribunal shall have the power to prosecute persons committing or ordering to be committed grave breaches of the Geneva Conventions of 12 August 1949, namely the following acts against persons or property protected under the provisions of the relevant Geneva Convention:

(a) wilful killing;
(b) torture or inhuman treatment, including biological experiments;
(c) wilfully causing great suffering or serious injury to body or health;
(d) extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;
(e) compelling a prisoner of war or a civilian to serve in the forces of a hostile power;
(f) wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial;
(g) unlawful deportation or transfer or unlawful confinement of a civilian;
(h) taking civilians as hostages."

11. Para. 111.
12. Para. 112.
13. Para. 113.
14. Footnote 346.
15. Para. 116.
16. Para. 117.
17. Para. 118.
18. Para. 119.
19. Paras. 120 to 122.
20. Para. 127.
21. Ibidem.
22. "The International Tribunal shall have the power to prosecute persons violating the laws or customs of war. Such violations shall include, but not be limited to:

(a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering;
(b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
(c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings;
(d) seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science;
(e) plunder of public or private property."

23. See The Prosecutor v. Zejnil Delalic et al. ("Celebici Camp"), Case No. IT-96-21-A, Appeals Chamber, Judgement, 20 February 2001 (summarised in Judicial Supplement No. 23), para. 424; The Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T and ICTR-96-10-T, Trial Chamber II, Judgement and Sentence, 21 May 1999, paras. 151 and 154; Jelisic Trial Chamber Judgement, paras. 41, 45 and 52.
24. Paras. 133 to 135.
25. Para. 136.
26. Paras. 137 to 139.
27. Paras. 140 and 141.
28. Para. 143.
29. Para. 144.
30. Paras. 145 to 168.
31. Para. 169.
32. Para. 171.
33. Para. 173.
34. Para. 183.
35. The Prosecutor v. Anto Furundzija ("Lasva River Valley"), Case No. IT-95-17/1-T, Trial Chamber II, Judgement, 10 December 1998 (hereinafter the "Furundzija Trial Chamber Judgement"), para. 162.
36. Paras. 141, 152 and 157.
37. Para. 316.
38. Para. 320.
39. Para. 313.
40. Para. 326.
41. Para. 328.
42. Para. 329.
43. "1. All persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted, are entitled to respect for their person, honour and convictions and religious practices. They shall in all circumstances be treated humanely, without any adverse distinction […]
2. Without prejudice to the generality of the foregoing, the following acts against the persons referred to in paragraph 1 are and shall remain prohibited at any time and in any place whatsoever […]

(f) slavery and the slave trade in all their forms […]"

44. Para. 360.
45. Para. 373.
46. Para. 195.
47. See the Tadic Appeals Chamber Judgement, paras. 249, 283, 287, 297, 305 and 356; see also The Prosecutor v. Zoran Kupreskic et al. ("Lasva River Valley"), Case No. IT-95-16-T, Trial Chamber II, Judgement, 14 January 2000 (hereinafter the "Kupreskic Trial Chamber Judgement", summarised in Judicial Supplement No. 11), paras. 621 to 636; see also the Blaskic Trial Chamber Judgement, para. 260; see also The Prosecutor v. Stevan Todorovic ("Bosanski Samac"), Case No. IT-95-9/1-T, Trial Chamber III, Judgement, 31 July 2001(summarised in Judicial Supplement No. 26), para. 113.
Regarding a comparison between Article 5 of the Statute and Article 3 of the Statute of the International Criminal Tribunal for Rwanda (hereinafter the "ICTR"), see the Rutaganda Trial Chamber Judgement and Sentence, paras. 73 to 76.
See also The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Appeals Chamber, Judgement, 1 June 2001 (hereinafter the "Akayesu Appeals Chamber Judgement", in which it held that "it does not follow automatically that the 'addition' to Article 3 of ICTR Statute allows a reading contrary to that in Tadic and that, consequently, Article 3 required that the perpetrator(s) of any crimes against humanity must have a discriminatory intent" (para. 462). It concurred with the finding and analysis contained in the Tadic Appeals Chamber Judgement (para. 464) and concluded that "persecution is the only crime which requires a discriminatory intent" (para. 468).
48. Para. 432.
49. Para. 305.
50. Para. 469.
51. Para. 436.
52. Para. 443.
53. Para. 489.
54. Para. 496.
55. Para. 492.
56. Paras. 497 and 498.
57. Para. 476. See also the interpretation of expulsion in para. 629 of the Kupreskic Trial Chamber Judgement which the Trial Chamber did not find "persuasive" (footnote 1437). See also the Krstic Trial Chamber Judgement, para. 521.
58. Para. 509.
59. Para. 512.
60. Para. 513.
61. Para. 514.
62. Para. 519.
63. Para. 520.
64. Para. 532.
65. Para. 527.
66. Para. 533.