The Prosecutor v. Milorad Krnojelac — Case no. IT-97-25-A

“Judgement”

17 September 2003
Appeals Chamber (Judges Jorda [Presiding], Schomburg, Shahabuddeen, Güney and Agius)

Background

· In the Indictment of 25 June 2001, Milorad Krnojelac (“Krnojelac”) was charged with twelve counts of crimes against humanity and violations of the laws or customs of war. As commander of the Foca Kazneno-Popravni Dom (“KP Dom”) from April 1992 to August 1993, Krnojelac was charged under Articles 7(1) and 7(3) of the Statute with acting together and in common purpose with the KP Dom guards in order to persecute Muslim and other non-Serb civilian detainees on political, racial or religious grounds, commit acts of torture, beatings and murder, and illegally detain non-Serb civilians.

· The Trial commenced on 30 October 2000. The Prosecution and Defence presented their closing arguments on 19 and 20 July 2001. During the 76 days of trial, 45 prosecution witnesses and 31 defence witnesses testified and 283 prosecution exhibits and 279 defence exhibits were tendered. In its Judgment of 15 March 2002, Trial Chamber II, presided over by Judge Hunt, found Krnojelac individually responsible as an aider and abettor under Article 7(1) of the Statute for the crime of persecution (based on imprisonment, living conditions and beatings) as a crime against humanity (Count 1) and the crime of cruel treatment (based on living conditions) as a violation of the laws or customs of war (Count 15). Under Article 7(3) of the Statute, Krnojelac was also held responsible for the crimes of persecution as a crime against humanity (based on beatings - Count 1), inhumane acts as a crime against humanity (based on beatings - Count 5) and cruel treatment as a violation of the laws or customs of war (based on beatings - Count 7). He was acquitted by the Trial Chamber on the counts of torture, murder under Article 3, murder under Article 5, imprisonment and other inhumane acts and handed down a single sentence of seven-and-a-half years’ imprisonment.¹

· On 12 April 2002, Krnojelac appealed against those convictions and raised six grounds in support of his appeal. Krnojelac maintained that the Trial Chamber had erred in fact by misevaluating his position as prison warden. In his view, the Trial Chamber had committed an error of law in holding that he had aided and abetted persecution (imprisonment and living conditions). He contended that the Trial Chamber had committed an error of fact in finding that he had aided and abetted cruel treatment (living conditions). It was further claimed that the Trial Chamber had erred in fact by ruling that Krnojelac was responsible as a superior for persecution (beatings). Lastly, the Trial Chamber allegedly erred in fact in finding that Krnojelac was responsible as a superior for inhumane acts and cruel treatment (beatings).

· On 15 April 2002, the Prosecution filed its notice of appeal alleging errors of law and fact committed by the Trial Chamber. The Prosecution presented seven grounds in support of its appeal. In its first ground of appeal, the Prosecution asserted that the Trial Chamber had erred in law in articulating its definition of joint criminal enterprise liability and in applying that definition to the facts of the case. Secondly, it was claimed that the Trial Chamber had committed an error of law when it required that the Indictment refer to an “extended form” of joint criminal enterprise. The Prosecution’s third ground of appeal argued that the Trial Chamber had erred in fact in finding that Krnojelac neither knew nor had reason to know that his subordinates were torturing the detainees and, accordingly, concluding that he could not be held responsible pursuant to Article 7(3) of the Statute. Fourthly, the Trial Chamber committed an error of fact in finding that, for the purposes of Article 7(3) of the Statute, the information available to Krnojelac was insufficient to put him on notice that his subordinates were involved in the murder of detainees at the KP Dom. Fifthly, the Trial Chamber made a factual error in finding that the beatings constituting inhumane acts and cruel treatment were not inflicted on discriminatory grounds and that therefore Krnojelac could not be held responsible for persecution as a superior. Sixthly, the Trial Chamber erred by acquitting Krnojelac on the count of persecution based on forced labour. Lastly, according to the Prosecution, the Trial Chamber erred in acquitting Krnojelac on the count of persecution based on deportation and expulsion.

· The two appellants also filed for leave to appeal against the seven and a half year sentence passed down by the Trial Chamber.

Judgement

The Appeals Chamber allowed the Prosecution’s first ground of appeal and set aside Krnojelac’s convictions as an aider and abettor to persecution (crime against humanity for imprisonment and inhumane acts) and cruel treatment (violation of the laws or customs of war for the living conditions imposed) under Counts 1 and 15 of the Indictment pursuant to Article 7(1) of the Statute. It allowed the Prosecution’s third ground of appeal and reversed Krnojelac’s acquittal on Counts 2 and 4 of the Indictment (torture as a crime against humanity and a violation of the laws or customs of war ) pursuant to Article 7(3) of the Statute. It allowed the Prosecution’s fourth ground of appeal and reversed Krnojelac’s acquittal on Counts 8 and 10 of the Indictment (murder as a crime against humanity and murder as a violation of the laws or customs of war) pursuant to Article 7(3) of the Statute. It allowed the Prosecution’s fifth ground of appeal seeking revision of Krnojelac’s conviction under Count 1 of the Indictment (persecution as a crime against humanity) pursuant to Article 7(3) of the Statute so that it encompassed a number of beatings. It allowed the Prosecution’s sixth ground of appeal and reversed Krnojelac’s acquittal on Count 1 of the Indictment (persecution as a crime against humanity) based on the forced labour imposed upon the non-Serb detainees. It allowed the Prosecution’s seventh ground of appeal and reversed Krnojelac’s acquittal on Count 1 of the Indictment (persecution as a crime against humanity) based on the deportation and expulsion of non-Serb detainees. It dismissed the Prosecution’s second ground of appeal on the form of the Indictment and all of Krnojelac’s grounds of appeal.

The Appeals Chamber found Krnojelac guilty of Counts 1 and 15 of the Indictment as a co-perpetrator of persecution, a crime against humanity (imprisonment and inhumane acts), and of cruel treatment, a violation of the laws or customs of war (living conditions), pursuant to Article 7(1) of the Statute. It found Krnojelac guilty of Counts 2 and 4 of the Indictment (torture as a crime against humanity and a violation of the laws or customs of war) pursuant to Article 7(3) of the Statute. It found Krnojelac guilty of Counts 8 and 10 of the Indictment (murder as a crime against humanity and murder as a violation of the laws or customs of war) pursuant to Article 7(3) of the Statute. It revised Krnojelac’s conviction under Count 1 of the Indictment (persecution as a crime against humanity) pursuant to Article 7(3) so that it encompassed new beatings. It found Krnojelac guilty of Count 1 of the Indictment as a co-perpetrator of the crime against humanity of persecution (forced labour, deportation and expulsion ) pursuant to Article 7(1) of the Statute. It set aside all the convictions entered under Count 5 of the Indictment (inhumane acts as a crime against humanity) pursuant to Article 7(3) of the Statute and the convictions entered under Count 7 of the Indictment (cruel treatment as a violation of the laws or customs of war) pursuant to Article 7(3) of the Statute for certain facts.

The Appeals Chamber dismissed the sentencing appeals entered by Krnojelac and the Prosecution (with the exception of the sub-ground allowed in paragraph 262 of the Judgement)² and imposed a new sentence, taking account of Krnojelac’s responsibility established on the basis of the new convictions on appeal and in the exercise of its discretion. It thus sentenced Krnojelac to 15 years’ imprisonment.³

Reasoning⁴

Definition of the constituent elements of participation in a joint criminal enterprise

In its first ground of appeal, the Prosecution alleged errors of law in the Trial Chamber’s definition of the constituent elements of participation in a joint criminal enterprise and in the application of that definition to the facts of the case. In addressing this ground of appeal, the Appeals Chamber elaborated on the following points:

Participation in a joint criminal enterprise as “commission”

In addition to clarifying the linguistic problems arising out of the English term accomplice and its French equivalent (coauteur or complice)⁵, the Appeals Chamber examined whether the Trial Chamber had committed an error of law in deciding that the notion of “commission” within the meaning of Article 7( 1) of the Statute must be reserved for the principal perpetrator of the crime. In paragraph 73 of the Judgment, the Trial Chamber had held that the term “committed ” did not apply to a participant in a joint criminal enterprise who had not personally and physically committed the crime.

The Appeals Chamber noted that paragraph 188 of the Tadic Appeals Judgement ⁶ had already set out that the commission of one of the crimes envisaged in the Statute could also occur through participation in the realisation of a common purpose. It further upheld the case-law established by the Ojdanic Decision in which the Appeals Chamber had found that “insofar as a participant shares the purpose of the joint criminal enterprise (as he or she must do) as opposed to merely knowing about it, he or she cannot be regarded as a mere aider and abettor to the crime which is contemplated.”⁷

Scope of the common state of mind and the required additional agreement

The Prosecution contended that the Trial Chamber committed an error of law in paragraph 83 when it held that, in order to establish the basic form of joint criminal enterprise,⁸ the Prosecution must demonstrate that “each of the persons charged and (if not one of those charged) the principal offender or offenders had a common state of mind, that which is required for that crime”. It argued that such an approach could render the notion of joint criminal enterprise redundant in the context of State criminality. By way of illustration, the Prosecution used the example of high-level political and military leaders who, from a distant location, plan the widespread destruction of civilian buildings (hospitals and schools) in a particular area in order to demoralise the enemy without the soldiers responsible for carrying out the attacks sharing the objective in question or even knowing the nature of the relevant targets.

The Appeals Chamber rejected the Prosecution’s argument and found that “apart from the specific case of the extended form of joint criminal enterprise, the very concept of joint criminal enterprise presupposes that its participants, other than the principal perpetrator(s) of the crimes committed, share the perpetrators’ joint criminal intent ”.⁹

Systemic form of joint criminal enterprise

The Prosecution alleged that the Trial Chamber had erred in law by partitioning the different types of crimes making up the joint criminal enterprise which it considered formed part of a system.

The Appeals Chamber confirmed that the Prosecution could have relied on the systemic form of joint criminal enterprise but noted that the Prosecution did not do so clearly in the Indictment. For the first time ever, the Chamber ruled that this form of joint criminal enterprise could be applied to the crimes tried by the Tribunal: the systemic form of joint criminal enterprise “may be applied to […] the serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991”.¹⁰

The Appeals Chamber stated that the Trial Chamber had only followed the approach taken by the Prosecution, which had pleaded the common purpose theory (basic form of joint criminal enterprise) in the Indictment. It held that the Trial Chamber had been justified in seeking out the intent of the crime’s principal perpetrators.¹¹

Intent to participate in a systemic joint criminal enterprise

The Appeals Chamber bore out the Prosecution’s contention that the Trial Chamber had required proof of an agreement between Krnojelac and the principal offenders, even though the crimes formed part of a system (crimes charged under Counts 1 and 15). It considered that “by requiring proof of an agreement in relation to each of the crimes committed with a common purpose, when it assessed the intent to participate in a systemic form of joint criminal enterprise, the Trial Chamber went beyond the criterion set by the Appeals Chamber in the Tadic case”.¹² It took the view that when the Trial Chamber determined that the system in place at the KP Dom sought to subject non-Serb detainees to inhumane living conditions and ill-treatment on discriminatory grounds, it should have examined whether or not Krnojelac knew of the system and agreed to it, without it being necessary to establish that he had entered into an agreement with the principal perpetrators to commit the crimes.

The Appeals Chamber found that the error made by the Trial Chamber resulted in Krnojelac’s liability being erroneously characterised. Consequently, Krnojelac became liable not as an aider and abettor to the relevant crimes but a co-perpetrator.¹³

In its analysis, the Appeals Chamber was also careful to set out the distinction between intent and motive.

Distinction between intent and motive and the crimes laid down in the Statute

The Appeals Chamber noted that customary international law does not require a purely personal motive in order to establish the existence of a crime against humanity.¹⁴ The Appeals Chamber went on to recapitulate its case-law in the Jelisic case which, with regard to the specific intent required for the crime of genocide, sets out “the necessity to distinguish specific intent from motive. The personal motive of the perpetrator of the crime of genocide may be, for example, to obtain personal economic benefits, or political advantage or some form of power. The existence of a personal motive does not preclude the perpetrator from also having the specific intent to commit genocide”.¹⁵ The Appeals Chamber stated that “this distinction between intent and motive must also be applied to the other crimes laid down in the Statute”.¹⁶

Joint criminal enterprise and common purpose

The Appeals Chamber pointed out, first of all, that it is for the Prosecution to determine the legal theory which it considers most appropriate to demonstrate that the facts it intends to submit to the Trial Chamber for assessment enable the responsibility of the person charged to be established. Likewise, it observed that the Prosecution may, to that end, additionally or alternatively rely on one or more legal theories, on condition that it is done clearly, early enough and, in any event, allowing enough time to enable the Accused to know what exactly he is accused of and to enable him to prepare his defence accordingly.¹⁷

In connection with common purpose, the Appeals Chamber held that the use of “the concept of joint criminal enterprise to define an individual’s responsibility for crimes physically committed by others requires a strict definition of common purpose ”, that the principle “applies irrespective of the category of joint enterprise alleged”, and that “the principal perpetrators of the crimes constituting the common purpose (civilian and military authorities and/or guards and soldiers present at KP Dom) or constituting a foreseeable consequence of it should also be identified as precisely as possible”.¹⁸ In this way, the Accused may know whether or not the system he is charged with having contributed to involves all of the acts being prosecuted and, where applicable, also know upon what basis his responsibility is being incurred for the acts not embraced by the system or the participants’ common purpose.

Form of the Indictment

In its second ground of appeal, the Prosecution maintained that the Trial Chamber had committed an error when it found that the Accused could not be held liable under the third form of joint criminal enterprise with respect to the crimes alleged unless an “extended” form of joint criminal enterprise was pleaded expressly in the Indictment. The Prosecution did not ask for the Judgment to be revised on this point. The Appeals Chamber ruled on how precise an indictment must be and, in particular, how the Prosecution used the categories of joint criminal enterprise to prosecute the Accused because these issues were of general importance to the case-law of the Tribunal.

Joint criminal enterprise and the specificity of the Indictment

The Appeals Chamber summarised the applicable law which sets forth that the Prosecution must set out the crimes charged precisely, meaning that the Prosecution must set out “the material facts of the Prosecution case with enough detail to inform a defendant clearly of the charges against him so that he may prepare his defence”.¹⁹ On the issue of the nature of the liability incurred, the Appeals Chamber stated :

“it is vital for the indictment to specify at least on what legal basis of the Statute an individual is being charged (Article 7(1) and/or 7(3)). Since Article 7(1) allows for several forms of direct criminal responsibility, a failure to specify in the indictment which form or forms of liability the Prosecution is pleading gives rise to ambiguity. The Appeals Chamber considers that such ambiguity should be avoided and holds therefore that, where it arises, the Prosecution must identify precisely the form or forms of liability alleged for each count as soon as possible and, in any event, before the start of the trial. Likewise, when the Prosecution charges the ‘commission’ of one of the crimes under the Statute within the meaning of Article 7(1), it must specify whether the term is to be understood as meaning physical commission by the Accused or participation in a joint criminal enterprise, or both. The Appeals Chamber also considers that it is preferable for an indictment alleging the Accused’s responsibility as a participant in a joint criminal enterprise also to refer to the particular form (basic or extended) of joint criminal enterprise envisaged”.²⁰

The Appeals Chamber recognised that, in principle, the need for the Indictment to be specific does not prevent the Prosecution from pleading elsewhere than in the indictment - for instance in a pre-trial brief - the legal theory which it believes best demonstrates that the crime or crimes alleged are imputable to the Accused in law in the light of the facts alleged. It did, however, state that this option is limited by the need to guarantee the accused a fair trial.²¹

Applying these principles to the case in point, the Appeals Chamber found that the Trial Chamber had not erred in refusing to apply the extended form of joint criminal enterprise to the crimes charged, since the Prosecution had persisted in ambiguously pleading the form of joint criminal enterprise it intended to use in order to prosecute the Accused.

Mens rea of superior responsibility

The Prosecution’s third and fourth grounds of appeal both invoked errors relating to the mens rea of superior responsibility under Article 7(3) of the Statute. The Prosecution submitted that the Trial Chamber had erred in fact by not concluding that, for the purposes of Article 7(3) of the Statute, Krnojelac “knew or had reason to know” that detainees were being tortured by his subordinates as opposed to being beaten arbitrarily (third ground of appeal) and that his subordinates were involved in the murder of the detainees listed in Schedule C of the Indictment (fourth ground of appeal). Although the Prosecution did not call into question the Trial Chamber’s interpretation of the “had reason to know” standard - merely its application to the facts of the case - the Appeals Chamber nonetheless stated its substance.

“Had to reason to know” standard

In the Celebici Appeals Judgement, the “had reason to know” standard is defined as follows:

“[a] showing that a superior had some general information in his possession, which would put him on notice of possible unlawful acts by his subordinates would be sufficient to prove that he ‘had reason to know’ […] This information does not need to provide specific information about unlawful acts committed or about to be committed”.²²

The Appeals Chamber found that the Prosecution's argument seemed to come down to accepting that, simply because of the beatings, of which Krnojelac was found to have been aware and which constituted cruel treatment and inhumane acts, it must be concluded that Krnojelac had reason to know that acts of torture and murders might be being committed (as knowledge of the beatings constitutes sufficient information to alert him to the risk of acts of torture and murders being committed ) and that, since he did not open any investigation in order to ascertain whether such crimes had been or were about to be committed, Krnojelac had the requisite mens rea to incur liability pursuant to Article 7(3) of the Statute for torture and murders.

On this point, interpreting the Celebici Appeals Judgement, the Appeals Chamber stated as follows:

“[…] with regard to a specific offence (torture for example), the information available to the superior need not contain specific details on the unlawful acts which have been or are about to be committed. It may not be inferred from this case-law that, where one offence (the “first offence”) has a material element in common with another (the “second offence”) but the second offence contains an additional element not present in the first, it suffices that the superior has alarming information regarding the first offence in order to be held responsible for the second on the basis of Article 7(3) of the Statute (such as for example, in the case of offences of cruel treatment and torture where torture subsumes the lesser offence of cruel treatment)”.²³

It went to hold that such “an inference is not admissible with regard to the principles governing individual criminal responsibility” and found that “it is not enough that an accused has sufficient information about beatings inflicted by his subordinates ; he must also have information – albeit general – which alerts him to the risk of beatings being inflicted for one of the purposes provided for in the prohibition against torture”.²⁴

Persecution and discriminatory intent

In its fifth ground of appeal, the Prosecution submitted that the Trial Chamber had erred in concluding that the beatings constituting inhumane acts and cruel treatment inflicted by the guards on detainees at the KP Dom had not been committed on discriminatory grounds and that they did not therefore constitute persecution for which Krnojelac could incur responsibility as a superior under Article 7(3) of the Statute.

Persecution and discriminatory intent

The Appeals Chamber reiterated that, in law, persecution as a crime against humanity requires evidence of a specific intent to discriminate on political, racial or religious grounds and that it falls to the Prosecution to prove that the relevant acts were committed with the requisite discriminatory intent.

Whilst the Appeals Chamber rejected the idea that the discriminatory intent behind the beatings committed might be inferred directly from the general discriminatory nature of an attack characterised as a crime against humanity, it maintained that it “may be inferred from such a context as long as, in view of the facts of the case, circumstances surrounding the commission of the alleged acts substantiate the existence of such intent”.²⁵ Among such circumstances, it identified: “the operation of the prison (in particular, the systematic nature of the crimes committed against a racial or religious group) and the general attitude of the offence’s alleged perpetrator as seen through his behaviour”.²⁶

Persecution and discrimination in fact

The Appeals Chamber upheld the Trial Chamber’s definition of the crime of persecution :

“[…] the crime of persecution consists of an act or omission which discriminates in fact and which: denies or infringes upon a fundamental right laid down in international customary or treaty law (the actus reus); and was carried out deliberately with the intention to discriminate on one of the listed grounds, specifically race, religion or politics (the mens rea)”.²⁷

However, the Appeals Chamber does not agree with the interpretation given to this definition in paragraph 432 of the Judgment, particularly in footnote 1293 which reads as follows:

“The crime of persecution, the only crime in the Statute which must be committed on discriminatory grounds (see Tadic Appeal Judgment, par 305), has as its object the protection of members of political, racial and religious groups from discrimination on the basis of belonging to one of these groups. If a Serb deliberately murders someone on the basis that he is Muslim, it is clear that the object of the crime of persecution in that instance is to provide protection from such discriminatory acts to members of the Muslim religious group. If it turns out that the victim is not Muslim, to argue that this act amounts nonetheless to persecution if done with a discriminatory intent needlessly extends the protection afforded by that crime to a person who is not a member of the listed group requiring protection in that instance (Muslims)”.

The Appeals Chamber found this assertion to be an erroneous interpretation of the requirement for discrimination in fact (or a discriminatory act) established by the case-law. Using the example provided in the footnote, the Appeals Chamber considered that a Serb mistaken for a Muslim may still be the victim of the crime of persecution. It held that “the act committed against him institutes discrimination in fact, vis-à-vis the other Serbs who were not subject to such acts, effected with the will to discriminate against a group on grounds of ethnicity”.²⁸

In directly addressing the Prosecution’s ground of appeal, the Appeals Chamber found that “the only reasonable finding that could be reached on the basis of the Trial Chamber’s relevant findings of fact was that the beatings were inflicted upon the non-Serb detainees because of their political or religious affiliation and that, consequently, these unlawful acts were committed with the requisite discriminatory intent”.²⁹ It therefore found Krnojelac guilty under Count 1 (persecution) of the Indictment pursuant to Article 7(3) of the Statute based on some of the beatings and consequently reversed his conviction under Count 5 of the Indictment based on the same facts.³⁰

Forced labour and the involuntary nature of the work

In its sixth ground of appeal, the Prosecution requested that the acquittal on Count 1 of the Indictment pronounced by the Trial Chamber be reversed (persecution : forced labour). The Prosecution did not challenge the Trial Chamber’s definition in paragraph 359 of the Judgment but the application of that definition on a case -by-case basis. The Prosecution maintained that lack of consent may be established from the objective circumstances without proof of the victim’s subjective state of mind. The Trial Chamber had required the Prosecution to prove on a case-by-case basis not only that the detainees were afraid to work but also that they did not want to work. The Prosecution also claimed that evidence which establishes the victim’s subjective state of mind, showing that he was forced to work, would clearly be relevant.

The Appeals Chamber rejected the Prosecution's argument stating:

“[…] the Appeals Chamber rejects the Prosecution’s argument that evidence which establishes the victim’s subjective state of mind and relates to the facts indicating that he was forced to work is clearly relevant and may of itself be sufficient to establish lack of consent. The Appeals Chamber takes the view that such an opinion is not sufficient to establish forced labour and that the detainees’ personal conviction that they were forced to work must be proven with objective and not just subjective evidence. In this case, given the particular circumstances of the detention centre, there was sufficient objective evidence to prove that the detainees were in fact forced to work, thus bearing out their conviction that the labour they performed was forced”.³¹

The Appeals Chamber thus established that the labour had been forced and set out to determine whether the forced labour could be characterised as a crime of persecution. It pointed out that “the acts underlying the crime of persecution, whether considered in isolation or in conjunction with other acts, must constitute a crime of persecution of gravity equal to the crimes listed under Article 5 of the Statute” and that, in this case, “forced labour must be considered as part of a series of acts comprising unlawful detention and beatings whose cumulative effect is of sufficient gravity to amount to a crime of persecution, given that the unlawful detention and beatings were based on one or more of the discriminatory grounds listed under Article 5 of the Statute”.³² After carrying out an analysis of the facts of the case, showing that the Trial Chamber had been “misled by its case-by-case approach to each of the acts of forced labour”³³, the Appeals Chamber concluded that discriminatory intent had been shown in forcing the eight detainees concerned to work and further determined that Krnojelac had to be found guilty as “a co-perpetrator of the joint criminal enterprise whose purpose was to persecute the non-Serb detainees by exploiting their forced labour”.³⁴

Persecution by way of deportation and expulsion

In its seventh ground of appeal, the Prosecution claimed that the Trial Chamber had erred in failing to find Krnojelac liable for the forced displacement of victims charged as persecution by way of deportation and expulsion punishable under Article 5(h) of the Statute. In examining the issues raised by this ground of appeal, the Appeals Chamber elaborated on the following points:

Acts of forced displacement and persecution

Mindful of the Indictment, the Appeals Chamber held that the Trial Chamber had disregarded the fact that the crime alleged was persecution by way of deportation and expulsion and not the separate crimes of expulsion or forcible transfer. The Appeals Chamber considered that, in this case, the Prosecution had used the terms “deportation” and “expulsion” in the Indictment as general terms in order to cover the acts of forcible displacement by which, the Prosecution alleged, the crime of persecution was committed.³⁵ It therefore held that the Trial Chamber should have ruled on the material facts alleged and decided whether such acts constituted persecution under Article 5(h) of the Statute. It found that, by failing to do so, the Trial Chamber had committed an error of law.³⁶

When it examined which acts of displacement may constitute persecution when committed with discriminatory intent, the Appeals Chamber upheld the finding made in the Stakic Judgment in which Trial Chamber II held that the prohibition against forcible displacements aims at safeguarding the right and aspiration of individuals to live in their communities and homes without outside interference and that the forced character of displacement and the forced uprooting of the inhabitants of a territory entail the criminal responsibility of the perpetrator, not the destination to which these inhabitants are sent. The Appeals Chamber consequently found that the “acts of forcible displacement underlying the crime of persecution punishable under Article 5(h) of the Statute are not limited to displacements across a national border”.³⁷ After analysing the relevant provisions of international humanitarian law, it made the finding that “displacements within a state or across a national border, for reasons not permitted under international law, are crimes punishable under customary international law, and these acts, if committed with the requisite discriminatory intent, constitute the crime of persecution under Article 5(h) of the Statute”.³⁸

Lack of genuine choice and the unlawfulness of displacement

The Trial Chamber had determined that there was general evidence that the detainees wanted to be exchanged, and that those selected for so-called exchanges had freely exercised their choice to go and did not have to be forced. It was not “satisfied that the displacement of these individuals from Foca, necessarily involved in the choice they made, was involuntary”.³⁹ While noting that the facts of the case showed that “the prisoners were happy about the exchanges, which gave them hope and made them keenly wish to be liberated, and that some of the detainees even went so far as to ask to be exchanged”, the Appeals Chamber held that this did not necessarily imply that they had a “genuine choice ”.⁴⁰ The Appeals Chamber set out that “it is the absence of genuine choice that makes displacement unlawful”⁴¹ and stated that “it is impossible to infer genuine choice from the fact that consent was expressed, given that the circumstances may deprive the consent of any value ”.⁴²

The Appeals Chamber consequently analysed the evidence concerning these general expressions of consent in its context, taking into account the situation and atmosphere that prevailed in the KP Dom, the illegal detention, the threats, the use of force and other forms of coercion, the fear of violence and the detainees’ vulnerability - whereas the Trial Chamber had been content to consider the testimony in isolation. It noted that “living conditions in the KP Dom made the non-Serb detainees subject to a coercive prison regime which was such that they were not in a position to exercise genuine choice” and concluded that the 35 detainees in question had been under duress and that the Trial Chamber had erred in finding that they had freely chosen to be exchanged.⁴³

Discriminatory nature of the acts of displacement

The Trial Chamber had stated that there was “no direct evidence showing that the displacement was committed on one of the listed discriminatory grounds”.⁴⁴ The Appeals Chamber pointed out that the discriminatory intent of forced displacements “cannot be directly inferred from the general discriminatory nature of an attack described as a crime against humanity”⁴⁵ but that, given the facts of the case, there were circumstances surrounding the commission of the acts charged that made it possible to infer that there was such an intent.

Given these conclusions, as well as the discriminatory character of the unlawful detention and the imposition of the above living conditions on the non-Serb KP Dom detainees,⁴⁶ the Appeals Chamber considered that it was “not reasonable for the Trial Chamber to conclude that there was no evidence that the 35 detainees had been transferred to Montenegro on the requisite discriminatory grounds”.⁴⁷

The Appeals Chamber was convinced, beyond all reasonable doubt, that Krnojelac was liable as a co-perpetrator in a joint criminal enterprise whose objective was to persecute the KP Dom detainees by deporting and expelling them.⁴⁸ It noted that the Accused was not charged with the alleged deportations and expulsions as a participant in the second category of a joint criminal enterprise (based on the concept of a system), but as a participant in the first category of such an enterprise, which requires Krnojelac to have shared the intent of the principal perpetrator. After analysing the facts of the case, it found that Krnojelac was responsible, as a co-perpetrator, for persecution by way of forcible displacement which, as the Prosecution alleged, took the form of “deportation” and “expulsion”.⁴⁹

Sentence

Both parties raised grounds of appeal relating to the seven-and-a-half-year sentence imposed by the Trial Chamber. Among these grounds, the Appeals Chamber had to rule on what weight it should to attach to the effects of a crime on the victims’ relatives when assessing the gravity of that crime.

Effects on the victims’ relatives and the gravity of the crime

The Prosecution challenged the finding in paragraph 512 of the Judgment, namely : that the effects of a crime upon the relatives of the immediate victims are irrelevant to the culpability of the offender or the sentence: “The Prosecution has submitted that what it calls an ‘in personam evaluation’ of the gravity of the crime could or should also concern the effect of that crime on relatives of the immediate victims. The Trial Chamber considers that such effects are irrelevant to the culpability of the offender, and that it would be unfair to consider such effects in determining a sentence”.⁵⁰

The Appeals Chamber noted that, without blurring the well known distinction between reparation and punishment, “the case-law of some domestic courts⁵¹ shows that a trial chamber may still take into account the impact of a crime on a victim’s relatives when determining the appropriate punishment”.⁵² It consequently found that “even where no blood relationships have been established, a trier of fact would be right to presume that the Accused knew that his victim did not live cut off from the world but had established bonds with others”. It also held that although no consideration had been given to the effect of the crimes on these people in this instance, this fact had had no major impact on the sentence and that there was, therefore, no reason to amend it. The Appeals Chamber took the view that the Prosecution had not provided it with sufficient evidence to enable it to assess the actual consequences of the crimes on the victims’ relatives.⁵³

Separate Opinion of Judge Schomburg

Judge Schomburg agreed with the conclusions reached by the Appeals Chamber but said that a more holistic approach as to the assessment of the facts and the individual criminal responsibility would have been preferable and that a judgment should be more elaborate on the reasons as to how a Chamber comes to the proportional sentence. This notwithstanding, he limited his analysis to the Prosecution’s seventh ground of appeal, i.e. persecution by way of deportation.

He expressed the view that the primary goal of the Appeals Chamber is to offer guidance and harmonisation for future decisions by Trial Chambers and stated that the Appeals Chamber should have felt itself obligated to discuss the definition of deportation.⁵⁴ Judge Schomburg asserted that such a definition was particularly important since the Tribunal's case-law on this issue was not uniform.

Judge Schomburg stated that the elements of the crime of deportation as a crime against humanity are:

Actus reus: forcibly removing or uprooting individuals from the territory and the environment in which they are lawfully present. A fixed destination is not required.⁵⁵

Mens rea: the intent to remove the victim, which implies that the victim can or will not return.⁵⁶

Whilst he concurred with the conclusion of the Appeals Chamber that the acts classified by it as forcible displacement amount to persecution, he said that he would define the underlying conduct as deportation.

Separate Opinion of Judge Shahabuddeen

Whilst Judge Shahabuddeen agreed with the Judgment of the Appeals Chamber, in his separate opinion, he proposed to speak on points on which the Appeals Chamber had not elaborated regarding deportation, the gravity of the crime of persecution, and whether the detainees had a genuine possibility of consenting to work.

He concurred with the Appeals Chamber’s view that it should not examine the definition of the crime of deportation. Whilst he accepted that the Appeals Chamber had the authority to determine issues of general importance, he asserted that such competence could not be exercised freely. Judge Shahabuddeen held that, in order for such competence to be exercised, there had to be sufficient linkage with the determination of the appeal (which in his view was not the case). He went on to state that this power remains discretionary and that, in this instance, the issue may be determined in other appeals proceedings.

As to the gravity of the crime of persecution, he observed that an act could constitute a crime against humanity committed through persecution only if it was itself a crime enumerated in articles 5(a) to (g) of the Statute or if it attained a gravity comparable to that of an enumerated crime. However, he stated that this principle must be applied with caution. Under Article 5(h), the supporting crime is persecution, the underlying acts being only evidence of the persecution (he asserted that it is persecution which must attain the same gravity as that of the other crimes enumerated in the Statute); the underlying act does not have to be a crime specified in the Statute and may be a crime that is not specified anywhere in international criminal law,⁵⁷ provided of course that the crime in question attains the level of gravity of an enumerated crime in the Statute.

On the issue of whether genuine consent was possible, Judge Shahabuddeen stated that consent is a matter of will. He asserted that the general atmosphere prevailing at the prison, as portrayed by the Prosecution, showed that there was no possibility of genuine consent and that while the task of the Prosecution was rightly heavy; it should not be made unmanageably so. As such, he concurred with the Appeals Chamber’s conclusions that were at variance with the findings of the Trial Chamber which, despite the body of evidence, had held that the fact that some of the detainees wanted to be transferred made consent possible.

Joint Criminal Enterprise Forms of Joint Criminal Enterprise Article 7(1) of the Statute1 provides for several types of individual criminal responsibility which apply to all the crimes falling under the Tribunal’s jurisdiction. While Article 7(1) of the Statute does not expressly mention joint criminal enterprise, it was recognized in Tadic that this form of criminal responsibility is well established in international customary law and implicitly contained in the Statute.2 The findings of the Tadic Appeals Judgement were recently confirmed by the Appeals Chamber in the “Decision on Dragoljub Ojdanic’s Motion Challenging Jurisdiction ”.3 The Tadic Appeals Judgment sets out three distinct categories of joint criminal enterprise: 1. The first category includes cases where all co-defendants, acting pursuant to a common design, possess the same criminal intention (the basic form of joint criminal enterprise);4 2. The second distinct category of cases embraces the so-called “concentration camp ” cases. This notion of common purpose applies to instances where the offences charged were alleged to have been committed by members of military or administrative units such as those running concentration camps (the systemic form of joint criminal enterprise );5 3. The third category concerns cases involving a common design to pursue one course of conduct where one of the perpetrators commits an act which, while outside the common design, was nevertheless a natural and foreseeable consequence of the execution of that common purpose (the extended form of joint criminal enterprise).6 The Tadic Appeals Judgment also defines the objective elements (actus reus) and subjective elements (mens rea) of joint criminal enterprise. The Appeals Chamber set out the objective elements of this mode of participation in one of the crimes provided for in the Statute (the same with regard to each of the three categories) as follows: (i) A plurality of persons. They need not be organised in a military, political or administrative structure; (ii) The existence of a common plan, design or purpose which amounts to or involves the commission of a crime provided for in the Statute. There is no necessity for this plan, design or purpose to have been previously arranged or formulated. The common plan or purpose may materialise extemporaneously and be inferred from the fact that a plurality of persons acts in unison to put into effect a joint criminal enterprise; (iii) Participation of the accused in the common design involving the perpetration of one of the crimes provided for in the Statute. This participation need not involve commission of a specific crime under one of those provisions (for example, murder, extermination, torture, rape, etc.), but may take the form of assistance in, or contribution to, the execution of the common plan or purpose.7 By contrast, the mens rea element differs according to the category of common design under consideration: 1. With regard to the first category, what is required is the intent to perpetrate a certain crime (this being the shared intent on the part of all co-perpetrators); 2. With regard to the second category, personal knowledge of the system of ill- treatment is required (whether proved by express testimony or a matter of reasonable inference from the accused’s position of authority), as well as the intent to further this common concerted system of ill-treatment; 3. With regard to the third category, what is required is the intention to participate in and further the criminal activity or the criminal purpose of a group and to contribute to the joint criminal enterprise or in any event to the commission of a crime by the group. In addition, responsibility for a crime other than the one agreed upon in the common plan arises only if, under the circumstances of the case, (i) it was foreseeable that such a crime might be perpetrated by one or other members of the group and (ii) the accused willingly took that risk.8 Basic Form of Joint Criminal Enterprise v. Systemic Form: the Prosecution’s Burden of Proof The Appeals Chamber in Krnojelac affirmed that the systemic form of joint criminal enterprise may be applied to the serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991.9 The principle elements of each form of joint criminal enterprise are: Basic form (i) the accused must voluntarily participate in one aspect of the common design (for instance, by inflicting non-fatal violence upon the victim, or by providing material assistance to or facilitating the activities of his co-perpetrators); and (ii) the accused, even if not personally affecting the killing, must nevertheless intend this result.10 Systemic form (i) the accused must have personal knowledge of the nature of the system of ill treatment (this can be proved by express testimony or inferred from the accused’s position of authority); (ii) the accused must have the intent to further the common concerted design of ill treatment.11 If the Prosecution decides to base an indictment on the participation in a common design (basic form of joint criminal enterprise) and not on the contribution to a system (systemic form of joint criminal enterprise), the Prosecution will have to prove for each crime alleged that the perpetrator had the same intention as the principal perpetrators. However, if the Prosecution decides to categorise the crimes in the indictments as part of a system (systemic form of joint criminal enterprise), the burden of proof will change. The Prosecution will then have to prove that the accused intended to contribute to the system, i.e. will have to prove that the accused had personal knowledge of the system in question (this can be proved by express testimony or inferred from the accused’s position of authority) as well as showing an intention to further the common concerted system.12 1. Article 7 (Individual criminal responsibility) 1. A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime. 2. Tadic, IT-94-1-A, Appeals Judgment (“Tadic Appeals Judgement”), 15 July 1999, para. 220, Judicial Supplement No. 6. 3. Milutinovic et al, IT-99-37-AR72, Decision on Dragoljub Ojdanic’s Motion Challenging Jurisdiction – Joint Criminal Enterprise’, 21 May 2003, Judicial Supplement No. 41. 4. Tadic Appeals Judgement, para.196. 5. Ibid., paras. 202 and 203. 6. Ibid., para. 204. 7. Ibid., para. 227. 8. Ibid., para. 228 9. Para. 89 of the Appeals Judgement. See the summary of the Appeals Judgement under “Systemic Form of joint criminal enterprise”. 10. Tadic Appeals Judgement, para. 196 11. Ibid., para. 203 12. Para. 89 of the Appeals Judgement.

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1. Krnojelac, IT-97-25-T, Judgment (“Trial Judgment”), 15 March 2002, Judicial Supplement No. 31bis.
2. The Trial Chamber considered “the extent to which [Counsel for Krnojelac] co-operated with it and with the Prosecution” as a factor contributing to “the efficient conduct of the trial” (para. 520 of the Trial Judgement). It found this to be a mitigating factor warranting a reduced sentence. The Appeals Chamber took note of the error and allowed the Prosecution’s ground of appeal. It stated that “the conduct described in that paragraph of the impugned Judgment is how any counsel should ordinarily behave before a Trial Chamber” and affirmed that the conduct of an accused’s counsel could not be taken into consideration when determining sentence (Appeals Judgement, para. 262).
3. Fifteen years as of the pronouncement of the appeals judgement, subject to credit being given under Rule 101(C) of the Rules for the period Krnojelac has already spent in detention, that is from 15 June 1998 to 17 September 2003.
4. This summary will discuss only the contributions essential to the Tribunal’s case-law and the Appeals Judgement’s contributions to international criminal and humanitarian law. The full text and the summary Appeals Judgement may be obtained from the Tribunal’s Public Information Service and/or its Internet site at the following address: www.un.org/icty (“Judgements” page).
5. Appeals Judgement, paras. 67-72.
6. Tadic, IT-94-1-A, Appeals Judgement (“Tadic Appeals Judgement”), 15 July 1999, para. 220, Judicial Supplement No. 6.
7. Milutinovic et al., IT-99-37-AR72, Decision on Dragoljub Ojdanic’s Motion Challenging Jurisdiction – Joint Criminal Enterprise (“Ojdanic Decision”), 21 May 2003, para. 20, Judicial Supplement No. 41.
8. See box entitled “Forms of Joint Criminal Enterprise”.
9. Appeals Judgement, para. 84.
10. Ibid., para. 89. The Appeals Chamber went on to state that, according to the Tadic Appeals Judgement, an individual did not have to be part of the organised system in order to be considered a participant in the joint criminal enterprise and that this category of cases - a variant of the first - is characterised by the “existence of an organised system set in place to achieve a common criminal purpose”. As for the required intent, it stated that it must be proved that the Accused had “personal knowledge of the system in question (whether proven by express testimony or a matter of reasonable inference from the Accused’s position of authority) and the intent to further the concerted system”.
11. See box entitled “Basic Form of Joint Criminal Enterprise v. Systemic Form: the Prosecution’s Burden of Proof”.
12. Appeals Judgement, para. 97.
13. Ibid., para. 113.
14. Tadic Appeals Judgement, para. 270.
15. Jelisic, IT-95-10-A, Appeals Judgement (“Jelisic Appeals Judgement”), 5 July 2001, para. 49, Judicial Supplement No. 26. See also Kunarac et al., IT-96-23 & IT-96-23/1-A, Appeals Judgement (“Kunarac Appeals Judgement”),12 June 2002, para. 103 and 153, Judicial Supplement No. 34.
16. Appeals Judgement, para. 102.
17. Ibid., para. 115.
18. Appeals Judgement, para.116.
19. Ibid., para. 131.
20. Ibid., para. 138.
21. Ibid.
22. Delalic et al., IT-96-21-A, Judgement (“Celebici Appeals Judgement”), 20 February 2001, para. 238, Judicial Supplement No. 23.
23. Appeals Judgement, para. 155.
24. Ibid.
25. Appeals Judgement, para. 184.
26. Ibid.
27. Trial Judgment, para. 431.
28. Appeals Judgement, para. 185.
29. Ibid., para. 186.
30. Ibid., para. 188.
31. Ibid., para. 195.
32. Ibid., para. 199.
33. Ibid., para. 202.
34. Ibid., para. 207.
35. Ibid., para. 214.
36. Ibid., para. 216.
37. Ibid., para. 218. See Stakic, IT-97-24-T, Judgement (“Stakic Judgement”), 31 July 2003, para. 677, Judicial Supplement No. 43.
38. Appeals Judgement, para. 222.
39. Trial Judgment, para. 483.
40. Appeals Judgement, para. 229.
41. Ibid.
42. Ibid., footnote omitted.
43. Appeals Judgement, para. 233.
44. Trial Judgment, para. 483.
45. Appeals Judgement, para. 235. The Appeals Chamber used the same type of analysis in para. 184 of the Appeals Judgement (see supra “Persecution and discriminatory intent”).
46. See for instance paragraph 193 of the Appeals Judgement.
47. Appeals Judgement, para. 237.
48. Ibid., para. 241.
49. Ibid., para. 247.
50. Trial Judgment, para. 512.
51. See, for example, in the United States, Payne v. Tennessee, 111 S. Ct. 2597, 2615-2616 (1991); 18 U.S.C. § 3593. See also, in the United Kingdom, R. v. Cooksley [2003] 2 Cr. App. R. 18; R. v. Delaney, 2003 WL 033375 (CA (Crim. Div.)); R. v. McSween, 2002 WL 31452147 (CA (Crim. Div.)); R. v. Kelly & Donelly, [2001] 2 Cr. App. R. (S.) 73. See also, in Canada, R. v. Jack, 2001 Yuk. S. Ct., 542; R. v. Duffus, 40 C.R. (5th) 350 (Ont. Sup. Ct. 2000); R. v. Emard [1999] B.C.J. no. 463 (British Columbia Supreme Court). See also, in Australia, R. v. Heblos, [2000] VSCA 229; R. v. Willis, [2000] VSC 297; R. v. Birmingham, 96 A. Crim. R. 545 (S. Ct. S.A. 1997); Mitchell v. R., 104 A. Crim. R. 523 (Crim. App. W.A. 1998); R. v. P., 39 FCR 276 (1992); cf. R. v. Previtera, 94, A. Crim. R. 76 (S. Ct. N.S.W. 1997) (footnote 415 of the Appeals Judgement).
52. Appeals Judgement, para. 260.
53. Ibid.
54. In paragraph 224 of the Appeals Judgement, the Appeals Chamber stated that it was “not necessary to express a view either supporting or rejecting the Trial Chamber’s definition of the terms ‘deportation’ and ‘expulsion’”.
55. Paragraph 15, making reference to paragraph 679 of the Stakic Judgement (see footnote 37 of this summary).
56. Paragraph 15.
57. On this subject see Kvocka, IT-98-30/1-T, Judgement, 2 November 2001, para. 186: “jurisprudence from World War II trials found acts or omissions such as denying bank accounts, educational or employment opportunities, or choice of spouse to Jews on the basis of their religion, constitute persecution. Thus, acts that are not inherently criminal may nonetheless become criminal and persecutorial if committed with discriminatory intent.” A summary of this Judgement features in the Judicial Supplement Judgements Special 2001.