Sentencing Judgement in the Krnojelac case
Please find below a summary of the Sentencing Judgement read out in court by Judge Hunt, the presiding Judge of Trial Chamber II, on Friday 15 March 2002.
Trial Chamber II is sitting today to deliver judgment in the trial of Milorad Krnojelac. That trial arose out of events at the Foča Kazneno-Popravni Dom, or the KP Dom, a large prison complex situated in the town of Foča, in the Eastern part of Bosnia Herzegovina, where a large number of non-Serb men were detained for long periods of time.
For the purposes of this hearing, I propose to summarise briefly the issues which arose during the trial and the findings of the Trial Chamber in relation to those issues. I emphasise that this is a summary only, and that it forms no part of the judgment which is delivered. The only authoritative account of the Trial Chamber’s findings, and of its reasons for those findings, is to be found in the written judgment, copies of which will be made available to the parties and to the public at the conclusion of this hearing.
The accused, Mr. Krnojelac, was the warden or the acting warden of the KP Dom over a period of some fifteen months in 1992 and 1993. He stood trial on charges that he was responsible for:
(i) crimes against humanity, consisting of persecution on political, racial and/or religious grounds, torture, inhumane acts, murder, imprisonment and enslavement; and
(ii) violations of the laws and customs of war, consisting of torture, cruel treatment, murder and slavery.
The accused was originally also charged with grave breaches of the Geneva Conventions of 1949, consisting of torture, wilfully causing serious injury to body or health, wilful killing, unlawful confinement of civilians, wilfully causing great suffering and inhuman treatment, but these charges were withdrawn by the prosecution shortly before the trial.
During the pleading stage, and before the trial commenced, the prosecution conceded that it was unable to establish that the accused had personally participated in the events which were alleged to have occurred inside the KP Dom. The prosecution pleaded, instead, that the accused was part of a joint criminal enterprise to commit the offences charged. It had already pleaded that the accused had aided and abetted those who had personally participated in the commission of those offences. It was on those bases of individual responsibility that the trial proceeded, together with the claim that the accused was criminally responsible as a superior for the acts of his subordinates.
The accused’s powers 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 he had been formally appointed as the warden of the KP Dom, he said, his powers as warden were limited to the civil section involving only convicted Serb detainees and an economic unit. The non-Serb detainees were, he claimed, 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 has not accepted this claim. It is satisfied that the accused retained all the powers of the warden of the KP Dom, and that he did in fact exercise those powers, including his supervisory responsibility over all subordinate personnel and detainees at the KP Dom.
Because the prosecution case in relation to persecution was based largely upon the same actions and incidents which formed the basis of the other charges in the case, it is convenient to leave the remarks concerning the charge of persecution to last.
A vast number of non-Serb civilians, the overwhelming majority of whom were Muslims, had been arrested throughout Foča and its environs when the conflict broke out early in 1992, and many of the male civilians were transferred to the KP Dom. The Defence claimed that they were prisoners of war and that their detention was on that basis lawful. The Trial Chamber has not accepted this argument. A small number of detainees had been combatants, but it is clear from the circumstances in which they had been arrested that they had not been taken prisoners as such. Among the detained, there were young and elderly, ill, wounded, physically incapacitated and mentally disturbed persons. There was no suggestion in the evidence that anyone had been arrested pursuant to a valid arrest warrant. They were arbitrarily detained for periods ranging from four months to two and a half years. None had been charged with any offence, and their detention has been found to be unlawful.
Although the accused played no role in securing their detention, and (as the Trial Chamber has found) he had no power unilaterally to order or grant the release of any detainees, he nevertheless knew that their detention was unlawful, and he also knew that his acts or omissions were contributing to the maintenance of that unlawful detention by those who were the principal offenders in that crime. The Trial Chamber was not, however, satisfied beyond reasonable doubt that he shared the intent of those principal offenders. It therefore rejected the prosecution case that he was part of a joint criminal enterprise to imprison the detainees unlawfully, but it has found that he aided and abetted those principal offenders in their commission of that crime.
Inhumane acts (based on living conditions) as a crime against humanity
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 families. They were subject to deplorable hygienic conditions. They were exposed to the freezing temperatures of the winter, and they were fed starvation rations which led the detainees to suffer considerable weight loss ranging from twenty to forty kilograms. Many of the detainees were denied access to medical care which was available, and those requiring emergency medical attention were not handled with proper care. The non-Serb detainees were also subjected to a psychologically exhausting regime whilst detained at the KP Dom. They were exposed to the sounds of their fellow detainees being beaten and tortured, leading many to fear that they would be next. Attempts made by the detainees to improve their living conditions were punished harshly with beatings and periods in the isolation cells. As a result of these conditions, the physical and psychological health of many of the non-Serb detainees deteriorated or was destroyed. 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 of the KP Dom. Most suffered severe weight loss, many spent periods in hospital after their release, and some still require constant medication and medical care. Nearly all continue to suffer from some form of psychological disorder, including anxiety attacks, sleeplessness, nightmares, depression or other nervous conditions.
The accused had knowledge of the conditions under which the non-Serb detainees were being held and of the effects these conditions were having on their physical and psychological health. 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 encouragement to the principal offenders to maintain these living conditions. However, the Trial Chamber was not satisfied beyond reasonable doubt that he shared the intent of those principal offenders. It has therefore rejected the prosecution case that he was part of a joint criminal enterprise in relation to these living conditions, but it has found that he aided and abetted those principal offenders in their commission of the crime against humanity based upon those living conditions.
Cruel treatment as a violation of the laws or customs of war (based upon the living conditions)
Based upon the same living conditions, the Trial Chamber has also found the accused guilty of cruel treatment as a violation of the laws or customs of war, again as having aided and abetted those who personally participated in creating those conditions.
The Trial Chamber considered whether it should find the accused also guilty as a superior of these two crimes based upon the inhumane living conditions. It is satisfied that he was aware of the participation of his subordinates in the creation of those living conditions, that he omitted to take any action to prevent those subordinates from maintaining those living conditions and that he failed to punish his subordinates for their implementation of those conditions. However, the Trial Chamber is of 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 abettor. It has nevertheless taken the accused’s position as a superior into account as having aggravated his offence.
Cruel treatment, inhumane acts and torture (based upon beatings)
The non-Serb civilian detainees were also systematically beaten and mistreated whilst detained at the KP Dom by the KP Dom guards, and by soldiers and military police coming from outside the KP Dom, for whose actions the accused was not responsible but who were permitted to enter the KP Dom in order to mistreat detainees in this way by the guards under the control of the accused and for whose actions he was responsible. Over fifty of those incidents of beating were of sufficient severity as 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 is satisfied that the accused knew that non-Serb detainees were being beaten and that they were otherwise being 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 adopt, the accused nevertheless encouraged these acts by his subordinates. The Trial Chamber has found him guilty in relation to the beatings as a superior, being of the opinion that it was more appropriate in this instance to do so than to find him guilty as an aider and abettor.
On the other hand, and notwithstanding that the accused saw Ekrem Zeković 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 was aware that the other beatings were inflicted for one of the purposes provided for in the prohibition against torture, rather than being meted out purely arbitrarily. He has therefore been found not guilty of torture on any basis.
The Trial Chamber has been satisfied that, during the months of 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 to be beaten. The beatings lasted well into the evening, and the sounds of the beatings and screams of the victims were clearly heard by other detainees held at the KP Dom. Following the beatings, shots were sometimes heard. KP Dom guards were observed taking part in the beatings, and blood and bloodied instruments were seen in the rooms in which the beatings 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 has found that twenty-six persons were murdered at the KP Dom in this way. Although none of the bodies of any of these persons has been recovered, the Trial Chamber is satisfied beyond reasonable doubt that these persons died by being beaten to death, shot, or as a result of injuries inflicted by the beatings in the KP Dom. However, the Trial Chamber has not been satisfied that the accused knew that his subordinates were involved in the killing of the detainees, or that he should have known. There was therefore no basis established for finding that the accused was responsible for those murders.
With respect to the charges of slavery and enslavement based on the allegation that the detainees were subjected to forced labour, the Trial Chamber has required the prosecution to show that the detainees had no freedom of choice as to whether they would work or not while detained at the KP Dom. Forced labour has not been accepted where the prosecution has relied solely upon a subjective belief by a detainee that he had no choice, without some factual basis being demonstrated for that belief, or upon a belief that he would by working be entitled to additional food or to escape from his room for a time. The issue is whether the particular detainee lost his choice to consent or to refuse the work he was doing. The Trial Chamber has found this allegation to have been established in relation to two detainees only. Those two were forced to work at mine clearing, but responsibility could not be attached to the accused because it was not established that the accused knew or should have known that these detainees had been forced to undertake this work. For these reasons, it became unnecessary for the Trial Chamber to consider whether this forced labour constituted enslavement, in the sense that there had been an intentional exercise of the powers attaching to the right of ownership over these two men.
As stated earlier, the prosecution case in relation to persecution was based largely upon the same actions and incidents which formed the basis of the other charges in the case. At this stage, therefore, it is necessary to refer only to the charge of persecution as it was based upon the charges which have already been established, plus one further issue raised, that of persecution based upon what was alleged to be the deportation and expulsion of the non-Serb detainees from the KP Dom.
The Trial Chamber has been 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 grounds. Accordingly, persecution upon the basis of these underlying offences was found to be established, and the accused has been found to be individually responsible as an aider and abettor to the principal offenders who committed the underlying offences. In the exercise of its discretion, the Trial Chamber did not also enter a conviction based upon the accused’s responsibility as a superior for the living conditions, constituting inhumane acts and cruel treatment, found to have been committed on discriminatory grounds.
The Trial Chamber has been satisfied that only two detainees were beaten on discriminatory grounds so as to amount to persecution. One of the beatings amounted to an inhumane act and cruel treatment. The other amounted to torture, but the accused was not found guilty of torture. His responsibility for these two incidents as acts of persecution is therefore in each case a responsibility as a superior for persecution on the basis of inhumane acts and cruel treatment.
In relation to the additional issue raised, that of persecution based upon the deportation and expulsion of the non-Serb detainees from the KP Dom, the Trial Chamber has not been satisfied that the detainees who had been transferred from the KP Dom had crossed a national border or, where it was satisfied that they had done so, the Trial Chamber was not satisfied that their 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 against the accused.
The convictions which will therefore be entered against the accused are for the crimes of:
(i) persecution as a crime against humanity based upon –
(a) imprisonment and inhumane acts (that is, the living conditions), for his individual responsibility, and
(b) two of the beating incidents, as a superior;
(ii) inhumane acts as a crime against humanity based upon the beatings, as a superior;
(iii) cruel treatment as a violation of the laws or customs of war based upon the beatings, as a superior; and
(iv) cruel treatment as a violation of the laws or customs of war based upon the living conditions, for his individual responsibility.
Subsumed in those findings of guilt of individual responsibility for persecution, but not made the subject of cumulative convictions, are findings that the accused was individually responsible for imprisonment and inhumane acts as crimes against humanity.
The Trial Chamber has adhered to all of the formal requirements laid down for sentencing. They are discussed more fully in the judgment. Its overriding obligation has been that of fitting the penalty to the individual circumstances of the accused and to the gravity of the offences for which he has been found responsible. The Trial Chamber has taken into account the particular vulnerability of the direct victims, the length of time over which the crimes continued during the accused’s tenure as warden of the KP Dom, and the extent of the long term physical, psychological and emotional suffering of those victims.
The accused has expressed no regret for the part he played in the commission of these crimes, and only insubstantial regret that the offences had taken place. This has been a case in which the accused chose to bury his head in the sand, and to ignore the responsibilities and power which he had as warden of the KP Dom to improve the situation of the non-Serb detainees. The sentence in this case is intended to 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.
On the other hand, the Trial Chamber has also taken into account the fact that the accused, prior to his appointment as warden of the KP Dom, had been employed as a mathematics teacher for most of his working life. He was not well experienced, and perhaps not well suited, for the task which he undertook. Moreover, unlike other persons who filled roughly similar positions as the accused did and who have been dealt with by this Tribunal, his participation in these crimes was limited to his aiding and abetting the criminality of others. Even then, his encouragement to those who did participate in these crimes was largely by reason of his inaction, his failure to exercise his powers as warden despite his knowledge that the crimes were being committed. There was also some evidence that the accused did act to help individual detainees who had approached him with particular requests, and of attempts by the accused to improve the condition of all detainees by securing more food for the KP Dom.
The accused is accordingly convicted of the crimes charged in –
Count 1 – persecution as a crime against humanity (based upon imprisonment, living conditions and beatings), both for his individual responsibility and as a superior;
Count 5 – inhumane acts as a crime against humanity (based upon beatings), as a superior;
Count 7 – cruel treatment as a violation of the laws or customs of war (based upon beatings), as a superior; and
Count 15 – cruel treatment as a violation of the laws or customs of war (based upon living conditions), for his individual responsibility.
The accused is acquitted of the crimes charged in Counts 2, 4, 8, 10, 11, 13, 16 and 18.
Milorad Krnojelac, you are sentenced to a single sentence of imprisonment for seven and a half years. You are entitled to credit towards service of that sentence for the period of three years and nine months you have spent in custody, together with any period you will serve in custody pending the President’s determination as to the State where the sentence is to be served. You are to remain in custody until such determination is made.