The Appeals Chamber of the International Tribunal for the Prosecution of
Persons Responsible for Serious Violations of International Humanitarian Law
Committed in the Territory of the Former Yugoslavia since 1991 (“International
Tribunal” or “ Tribunal”) is seised of appeals in relation to the Judgment
rendered by Trial Chamber II on 15 March 2002 in the case The Prosecutor
v Milorad Krnojelac (“Judgment ”).1
Having considered the written and oral submissions of the parties, the Appeals
Chamber,
I. INTRODUCTION
- The Indictment of 25 June 2001 charged Milorad Krnojelac (“Krnojelac”)
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. In the Judgment, the
Trial Chamber 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.
- On 12 April 2002, Krnojelac appealed against those convictions and raised
six grounds in support of his appeal. Krnojelac maintains that the Trial Chamber
erred in fact by misevaluating his position as prison warden.2
In his view, the Trial Chamber committed an error of law in holding that Krnojelac
aided and abetted persecution (imprisonment and living conditions). He contends
that the Trial Chamber committed an error of fact in finding that Krnojelac
aided and abetted cruel treatment (living conditions). It is further claimed
that the Trial Chamber 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 asserts that the Trial Chamber 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 is claimed that the Trial Chamber 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
argues that the Trial Chamber 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.3
The Appeals Chamber further notes that both Appellants have appealed the sentence.
Before reviewing Krnojelac’s and the Prosecution’s grounds of appeal more
thoroughly, the Appeals Chamber considers it appropriate to elaborate on the
standard for reviewing the findings made by the Trial Chamber.
II. APPLICABLE LAW
A. Applicable criteria for reviewing the alleged
errors
- Although the parties in this case have not challenged the criteria applicable
on appeal for reviewing the alleged errors of law and fact, the Appeals Chamber
nevertheless considers it appropriate to recall those criteria since some
of the errors of law raised by the Prosecution were raised as issues of general
importance and the Prosecution alleged that, with regard to various questions
of fact, the errors presented by the Defence do not comply with the review
criteria laid down in the Tribunal’s case-law.
- Unlike the procedures in force in some national systems, the appeals procedure
provided for under Article 25 of the ICTY Statute is, by nature, corrective
and does not therefore give rise to a de novo review of the case. This
appeal system affects the nature of the submissions that a party may legitimately
present on appeal as well as the general burden of proof that the party must
discharge before the Appeals Chamber acts. Those criteria have been frequently
referred to by the Appeals Chambers of the Tribunal and the ICTR4
and are set out in sub-section 2, infra.
1. Issues of general importance
- Article 24(1) of the Statute refers only to the errors of law which
render the decision invalid, that is errors on a point of law which, if
proven, affect the guilty verdict. However, the case-law of the ad hoc
tribunals accepts that there are situations where the Appeals Chamber
may raise questions proprio motu or agree to examine alleged errors
which will not affect the verdict but which do, however, raise an issue of
general importance for the case-law or functioning of the Tribunal.
- In the Tadic case, the Prosecution invoked several grounds of appeal,
three of which raised issues of general importance for the case-law or functioning
of the Tribunal. The Prosecution acknowledged that the Appeals Chamber’s decision
would not influence the Trial Chamber’s verdict on the relevant counts. Yet
the Appeals Chamber considered that it was competent to deal with issues which,
although they do not affect the verdict handed down by a Trial Chamber, are
of general importance for the Tribunal’s case-law. The main concern is to
ensure the development of the Tribunal’s case-law and the standardisation
of the applicable law. It is appropriate to consider an issue of general importance
where its resolution is deemed important for the development of the Tribunal’s
case-law and it involves an important point of law that merits examination.
This is because the Appeals Chamber must give the Trial Chambers guidance
in their interpretation of the law. This role of final arbiter of the law
applied by the Tribunal should be seen in the light of the Tribunal’s specific
character and, in particular, of its ad hoc, temporary nature.
- In the Akayesu Appeals Judgement, the ICTR Appeals Chamber held
that the fact that an appeal was founded exclusively on issues of general
importance did not fundamentally alter the facts of the problem. It noted
that the aim of addressing issues of general importance was not to create
a new ground of appeal or a possible consultative power:
23. […] On the other hand, [the Appeals Chamber] may
deem it necessary to pass on issues of general importance if it finds
that their resolution is likely to contribute substantially to the development
of the Tribunal’s jurisprudence. The exercise of such a power is not contingent
upon the raising of grounds of appeal which strictly fall within the ambit
of Article 24 of the Statute. In other words, it is within its discretion.
While the Appeals Chamber may find it necessary to address issues, it
may also decline to do so. In such a case (if the Appeals Chamber does
not pass on an issue raised), the opinion of the Trial Chamber remains
the sole formal pronouncement by the Tribunal on the issue at bar. It
will therefore carry some weight. 5
24. Therefore, the Appeals Chamber will not consider
all issues of general significance. Indeed, the issues raised must be
of interest to legal practice of the Tribunal and must have a nexus with
the case at hand.
- In this case, the Prosecution has raised several general issues of which
the Appeals Chamber has considered the admissibility and, where appropriate,
the merits.
2. Applicable review criteria of the allegations
of errors in general and the errors of fact in particular
- With regard to the alleged errors of law, the Appeals Chamber recalls that,
as arbiter of the law applicable before the International Tribunal, when a
party raises such an allegation, it is bound in principle to determine whether
an error was in fact committed on a substantive or procedural issue. The case-law
recognises that the burden of proof on appeal is not absolute with regard
to errors of law. The Appeals Chamber does not review the Trial Chamber’s
findings on questions of law merely to determine whether they are reasonable
but rather to determine whether they are correct. Nevertheless, the party
alleging an error of law must, at least, identify the alleged error, present
arguments in support of its claim and explain how the error invalidates the
decision. An allegation of an error of law which has no chance of resulting
in an impugned decision being quashed or revised is not a priori legitimate
and may therefore be rejected on that ground.
- As regards errors of fact, the party alleging this type of error in support
of an appeal against a conviction must provide evidence both that the error
was committed and that this occasioned a miscarriage of justice. The Appeals
Chamber has regularly pointed out that it does not lightly overturn findings
of fact reached by a Trial Chamber. This approach is explained principally
by the fact that only the Trial Chamber is in a position to observe and hear
the witnesses testifying and is thus best able to choose between two diverging
accounts of the same event. First instance courts are in a better position
than the Appeals Chamber to assess witnesses’ reliability and credibility
and determine the probative value of the evidence presented at trial.
- Thus, when considering this type of error the Appeals Chamber applies the
“reasonable nature” criterion to the impugned finding. Only in cases where
it is clear that no reasonable person would have accepted the evidence on
which the Trial Chamber based its finding or when the assessment of the evidence
is absolutely wrong can the Appeals Chamber intervene and substitute its own
finding for that of the Trial Chamber. Thus, the Appeals Chamber will not
call the findings of fact into question where there is reliable evidence on
which the Trial Chamber might reasonably have based its findings. It is accepted
moreover that two reasonable triers of fact might reach different but equally
reasonable findings. A party suggesting only a variation of the findings which
the Trial Chamber might have reached therefore has little chance of a successful
appeal, unless it establishes beyond any reasonable doubt that no reasonable
trier of fact could have reached a guilty finding.
- When a party succeeds in establishing that an error of fact was committed
in accordance with those criteria, the Appeals Chamber still has to accept
that the error occasioned a miscarriage of justice such that the impugned
finding should be revoked or revised. The party alleging a miscarriage of
justice must, in particular, establish that the error strongly influenced
the Trial Chamber’s decision and resulted in a flagrant injustice, such as
where an accused is convicted despite lack of evidence pertaining to an essential
element of the crime.
- In the Bagilishema case, the ICTR Appeals Chamber held that the
standard of unreasonableness and the same deference to factual findings of
the Trial Chamber apply when the Prosecution appeals against an acquittal.
The Appeals Chamber will only hold that an error of fact was committed when
it determines that no reasonable trier of fact could have made the challenged
finding. However, since the Prosecution must establish the guilt of the accused
at trial, the significance of an error of fact occasioning a miscarriage of
justice takes on a specific character when alleged by the Prosecution. This
is because it has the more difficult task of showing that there is no reasonable
doubt about the appellant’s guilt when account is taken of the Trial Chamber’s
errors of fact.
- In light of the above, in order for the appeal to succeed it is vital for
the party alleging an error of fact or on a point of law to meet the criteria
for review on appeal. In principle, the Appeals Chamber is not obliged to
consider a party’s submissions if they do not relate to an error of law which
invalidates the decision or an error of fact occasioning a miscarriage of
justice. There is therefore no point whatsoever in a party reiterating arguments
which failed at trial on appeal, unless the party demonstrates that the fact
that they were dismissed resulted in an error such as to justify the Appeals
Chamber intervening. The Appeals Chamber in the Kupreskic Appeals Judgement
stated that when a party is not able to explain how an alleged error renders
the decision invalid, in general, it must refrain from appealing on that point.
The Appeals Chamber considers that this principle holds for alleged errors
of both fact and law. Consequently, when there is no chance of a party’s submissions
leading to a challenged decision being quashed or revised, the Appeals Chamber
may reject them, at the outset, as being invalid and it does not have to consider
them on the merits.
- As regards the formal requirements, the Appeals Chamber in the Kunarac
Appeals Judgement specified that it cannot be expected to consider the
parties’ claims in detail if they are obscure, contradictory or vague or if
they are vitiated by other blatant formal defects. In this regard, paragraph
13 of the Practice Direction on the Formal Requirements for Appeals from Judgements
of 16 September 2002 states that “where a party fails to comply with the requirements
laid down in […] [the] Practice Direction, or where the wording of a filing
is unclear or ambiguous, a designated Pre-Appeal Judge or the Appeals Chamber
may, within its discretion, decide upon an appropriate sanction, which can
include an order for clarification or re -filing. The Appeals Chamber may
also reject a filing or dismiss submissions therein.” The party appealing
must therefore set out the sub-grounds and submissions of its appeal clearly
and provide the Appeals Chamber with specific references to the sections of
the appeal case it is putting forward in support of its claims. From a procedural
point of view, the Appeals Chamber has discretion under Article 25 of the
Statute to determine which of the parties’ submissions warrant a reasoned
written response. The Appeals Chamber does not have to provide a detailed
written explanation of its position with regard to arguments which are clearly
without foundation. It must focus its attention on the essential issues of
the appeal. In principle, therefore, it will reject without detailed reasoning
arguments raised by the Appellants in their briefs or at the appeal hearing
if they are obviously ill-founded.
- Here, the Prosecution raised the problem of the review criteria on appeal
as a preliminary matter in its Response.6
It claims that some sections of the Defence Brief lack clarity as to the alleged
errors of law and fact and that, in relation to various factual issues, Krnojelac
has presented the arguments raised at trial (sometimes virtually verbatim)
without referring to any part of the Judgment and without identifying in its
analysis or submissions any error occasioning a miscarriage of justice.7
The Prosecution submits that, in those circumstances, Krnojelac has not satisfied
the burden of proof on appeal.8
- Given the aforementioned case-law, the Appeals Chamber finds that the question
is whether the Defence has presented grounds of appeal that are invalid in
accordance with the Tribunal’s case-law and are thus to be rejected outright
because the Defence has not satisfied the review criteria on appeal.
3. Admissibility of the grounds of appeal presented
by the parties
- The Appeals Chamber considers that almost all of the Defence’s sub-grounds
and grounds of appeal based on errors of fact in this case are invalid for
the reasons set out below. The Appeals Chamber notes that, for each ground
of appeal, it is a matter of determining whether the Defence has satisfied
the burden of proof as set out above. The grounds of appeal will therefore
be considered from this perspective alone. The merits of the submissions presented
in support of the grounds of appeal will not be examined at all.
- Generally, with the exception of one ground of appeal, the Defence makes
no submission in its Brief to the effect that the Trial Chamber’s findings
were unreasonable. The Appeals Chamber cannot identify the Trial Chamber’s
alleged error. It seems that the Defence is only challenging the Trial
Chamber’s findings and suggesting an alternative assessment of the evidence.
However, it is not enough merely to challenge the Judgment in order to show
that the Trial Chamber’s findings were made in error. Insofar as it does not
indicate in what aspects the Trial Chamber’s assessment of the evidence is
unreasonable and erroneous, the Defence fails to discharge the burden of proof
incumbent on it when alleging errors of fact.
- The first ground of appeal on the issue of Krnojelac’s position as prison
warden is made up of four sub-grounds of appeal all based on errors of fact9
as previously indicated.10 With specific
regard to the first sub-ground of the first ground of appeal, according to
which the Trial Chamber erred in concluding that the internal structure of
the KP Dom had not changed after the outbreak of the war and that the position
and powers of the warden within the prison hierarchy had not changed as compared
with the period before 18 April 1992,11
the Defence referred only to parts of the evidence which, taken together with
certain facts, show that the “KPD structure could not remain the same”.12
This assertion does not enable the Appeals Chamber to ascertain the Trial
Chamber’s alleged specific error. In this case, it is impossible to infer
from the Defence Brief in what way the Trial Chamber’s interpretation of the
evidence was entirely erroneous. Similarly, it is impossible to know how the
evidence referred to by the Defence affected the Trial Chamber’s reasoning
and findings. In those circumstances, the Appeals Chamber cannot consider
this sub-ground to be valid.
- In the second sub-ground of the first ground of appeal, the Defence asserts
that the Trial Chamber erred in concluding that Krnojelac voluntarily accepted
the position of warden of the KP Dom.13
In its Brief, the Defence merely suggests another interpretation of the evidence
and does not indicate how the Trial Chamber’s evaluation was erroneous. The
Appeals Chamber finds that it is not enough merely to assert that the witnesses’
testimony casts doubt on the Trial Chamber’s findings; submissions must also
be presented as to the possible error made by the Trial Chamber, not by reference
to possible interpretations of the evidence but, for instance, by reference
to the Trial Chamber’s erroneous assessment of the testimony, its failure
to take account of some of the evidence or possible contradictions in its
reasoning or findings of fact. Accordingly, the Appeals Chamber cannot consider
this a valid sub-ground.
- As regards the third sub-ground of the first ground of appeal, the Defence
submits essentially that the Trial Chamber erred in concluding that there
was no significant division between military and civilian personnel within
the KP Dom. All were responsible to the warden who had the power to take disciplinary
measures against them and Krnojelac, as warden, retained jurisdiction over
all detainees in the KP Dom.14 It presents
the testimony of a number of witnesses which it believes is “sufficient […]
to cast a reasonable doubt on the […] erroneous conclusions of the Trial Chamber
concerning the unchanged hierarchy within KPD despite its surrender to the
army”.15 Likewise, it refers to parts
of the evidence which, it argues, “are in no way of a nature that lead beyond
any reasonable doubt to a conclusion that the Accused, in the capacity he
had in KPD in the relevant period, was in charge of Muslim detainees in KPD”.16
The Defence thus submits that Krnojelac “was in no way responsible for persons
who were kept in that part of the KP Dom […] [nor had he] any authority over
the prison guards”,17 and that the evidence
cited bears out this interpretation of the facts. As the Appeals Chamber has
already stated, merely referring to the witnesses’ testimony and suggesting
an alternative interpretation of it is not enough to demonstrate that the
Trial Chamber’s findings were unreasonable. As the Defence’s submissions on
this sub-ground of appeal do not go beyond suggesting an alternative interpretation
of the evidence adduced at trial, the Appeals Chamber declares this sub-ground
invalid.
- As for the fourth sub-ground in support of the first ground of appeal which
raises the issue of the “hierarchy within KPD and the Accused’s position as
viewed by detained non-Serbs, witnesses for the Prosecution”,18
the Defence proposes “to analyze the views of a great many witnesses, non-Serbs,
who spent quite a long time in KPD, with respect to the hierarchy prevailing
in KPD and the Accused Krnojelac’s position as seen by them”.19
No specific error is alleged in support of this sub-ground of appeal. In addition,
it appears that the Defence Brief essentially replicates submissions put to
the Trial Chamber in the Final Trial Brief. This sub-ground must therefore
be declared invalid.
- In support of the third and fourth grounds of appeal, which the Appeals
Chamber construes as allegations of errors of fact, the Defence challenges
the Trial Chamber's findings relating to Krnojelac's individual responsibility
for aiding and abetting cruel treatment as a violation of the laws or customs
of war (living conditions)20 and its
findings on Krnojelac's responsibility as a command superior within the meaning
of Article 7(3) of the Statute for acts of persecution as a crime against
humanity based on beatings.21 Here again,
the Defence does nothing more in these two grounds of appeal than substitute
its own interpretation of the evidence adduced at trial in support of its
submission that the Trial Chamber's findings were erroneous. In support of
the third ground of appeal, it proposes to “single out from the corps of evidence
only the evidence challenging the conclusions of the Trial Chamber and casting
a reasonable doubt”22 on its findings
but does not identify the specific error committed by the Trial Chamber. By
merely putting forward a different conclusion inferable from the trial record
without even stating what type of error the Trial Chamber supposedly made
in relation to the evidence, the Defence has failed to discharge its burden
of proof on appeal.23 As for the fourth
ground of appeal, the Defence essentially points to a certain amount of the
evidence and testimony presented in support of the first ground of appeal
showing that Krnojelac was not part of the command structure in place. However,
here again, a mere assertion that the Trial Chamber erred is insufficient.
The alleged error must also be identified and particularised so that the Appeals
Chamber is in a position to respond. Likewise, an assertion that the Trial
Chamber failed to provide satisfactory reasons for its finding of discriminatory
intent behind the beatings inflicted upon Dzemo Balic is not sufficient for
the Trial Chamber’s finding on this point to be held to be unreasonable.24
Consequently, for all of these reasons, these grounds of appeal are invalid.
- The Appeals Chamber points out that the parties had their attention drawn
to the criteria for review at the appeal hearing.25
In particular, the Presiding Judge of the Appeals Chamber26
and then its Judges27 addressed the Defence
on this point. Despite these reminders, the Defence failed to provide better
particulars of the errors alleged in support of the aforesaid grounds and
sub-grounds. In any event, it did not provide the Appeals Chamber with any
information which it could use in dealing with the grounds.
- In the light of the foregoing, the Appeals Chamber will not examine the
first, second, third or fourth sub-grounds of the Defence’s first ground of
appeal or its third and fourth grounds of appeal. Some of the Defence’s submissions
on the remaining fifth ground of appeal satisfy the burden of proof. The Appeals
Chamber will therefore consider them on the merits.
B. Law applicable to the joint criminal enterprise
and aiding and abetting
1. Joint criminal enterprise
- Article 7(1) of the Statute sets out several forms of individual criminal
responsibility which apply to all the crimes falling within the Tribunal’s
jurisdiction. It reads as follows:
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.
- This provision lists the forms of criminal conduct which, provided all
the other conditions are satisfied, may result in the accused’s incurring
criminal responsibility if he has committed any one of the crimes provided
for by the Statute in one of the ways set out in this provision. Article 7(1)
of the Statute does not make explicit reference to “joint criminal enterprise”.
However, the Appeals Chamber recalls that, after considering the question
in the Tadic Appeals Judgement,28
it concluded that participation in a joint criminal enterprise as a form of
liability, or the theory of common purpose as the Chamber referred to it,
was implicitly established in the Statute and existed in customary international
law at the time of the facts, that is in 1992. The Appeals Chamber also specified
that the commission of one of the crimes envisaged in Articles 2, 3, 4 or
5 of the Statute might also occur through participation in the realisation
of a common design or purpose:
220. In sum, the Appeals Chamber holds the view that
the notion of common design as a form of accomplice liability is firmly
established in customary international law and in addition is upheld,
albeit implicitly, in the Statute of the International Tribunal. […].
226. The Appeals Chamber considers that the consistency
and cogency of the case- law and the treaties referred to above, as well
as their consonance with the general principles on criminal responsibility
laid down both in the Statute and general international criminal law and
in national legislation, warrant the conclusion that case law reflects
customary rules of international criminal law.
188. This provision [Article 7(1) of the Statute] covers
first and foremost the physical perpetration of a crime by the offender
himself, or the culpable omission of an act that was mandated by a rule
of criminal law. However, the commission29
of one of the crimes envisaged in Articles 2, 3, 4 or 5 of the Statute
might also occur through participation in the realisation of a common
design or purpose.
191. [...] Although only some members of the group may
physically perpetrate the criminal act (murder, extermination, wanton
destruction of cities, towns or villages, etc.), the participation and
contribution of the other members of the group is often vital in facilitating
the commission of the offence in question. It follows that the moral gravity
of such participation is often no less - or indeed no different - from
that of those actually carrying out the acts in question.
192. Under these circumstances, to hold criminally liable
as a perpetrator only the person who materially performs the criminal
act would disregard the role as co-perpetrators of all those who in some
way made it possible for the perpetrator physically to carry out that
criminal act. At the same time, depending upon the circumstances, to hold
the latter liable only as an aider and abettor might understate the degree
of their criminal responsibility.
These findings were recently upheld by the Appeals Chamber in its ruling
on Dragoljub Ojdanic’s Motion Challenging Jurisdiction:
19. As noted in the Tadic Appeal Judgment, the
Secretary-General's Report provided that “all persons” who participate
in the planning, preparation or execution of serious violations of international
humanitarian law contribute to the commission of the violation and are
therefore individually responsible.30
Also, and on its face, the list in Article 7(l) appears to be non-exhaustive
in nature as the use of the phrase “or otherwise aided and abetted”
suggests. But the Appeals Chamber does not need to consider whether, outside
those forms of liability expressly mentioned in the Statute, other forms
of liability could come within Article 7(l). It is indeed satisfied that
joint criminal enterprise comes within the terms of that provision.31
20. In the present case, Ojdanic is charged as a co-perpetrator
in a joint criminal enterprise the purpose of which was, inter alia,
the expulsion of a substantial portion of the Kosovo Albanian population
from the territory of the province of Kosovo in an effort to ensure continued
Serbian control over the province.32
The Prosecution pointed out in its indictment against Ojdanic that its
use of the word “committed” was not intended to suggest that any of the
accused physically perpetrated any of the crimes charged, personally.
By the term “committing”, the Prosecution means participation in a joint
criminal enterprise as a co-perpetrator.33
Leaving aside the appropriateness of the use of the expression “co-perpetration”
in such a context, it would seem therefore that the Prosecution charges
co-perpetration in a joint criminal enterprise as a form of “commission”
pursuant to Article 7(l) of the Statute, rather than as a form of accomplice
liability. The Prosecution's approach is correct to the extent 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.
Thus, the Appeals Chamber views participation in a joint criminal enterprise
as a form of “commission” under Article 7(1) of the Statute.34
- After considering the relevant case-law, relating principally to many war
crimes cases tried after the Second World War, the Tadic Appeals Judgement
sets out three categories of cases regarding joint criminal enterprise:
The first such category is represented by cases where
all co-defendants, acting pursuant to a common design, possess the same
criminal intention; for instance, the formulation of a plan among the
co-perpetrators to kill, where, in effecting this common design (and even
if each co-perpetrator carries out a different role within it), they nevertheless
all possess the intent to kill. The objective and subjective prerequisites
for imputing criminal responsibility to a participant who did not, or
cannot be proven to have, effected the killing are as follows: (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 effecting
the killing, must nevertheless intend this result.35
[…] The second distinct category of cases is in many
respects similar to that set forth above, and embraces the so-called “concentration
camp” cases. The notion of common purpose was applied 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;
i.e., by groups of persons acting pursuant to a concerted plan. Cases
illustrative of this category are Dachau Concentration Camp,36
decided by a United States court sitting in Germany and Belsen,37
decided by a British military court sitting in Germany. In these cases
the accused held some position of authority within the hierarchy of the
concentration camps. Generally speaking, the charges against them were
that they had acted in pursuance of a common design to kill or mistreat
prisoners and hence to commit war crimes.38
In his summing up in the Belsen case, the Judge Advocate adopted
the three requirements identified by the Prosecution as necessary to establish
guilt in each case: (i) the existence of an organised system to ill-treat
the detainees and commit the various crimes alleged; (ii) the accused’s
awareness of the nature of the system ; and (iii) the fact that the accused
in some way actively participated in enforcing the system, i.e., encouraged,
aided and abetted or in any case participated in the realisation of the
common criminal design. The convictions of several of the accused appear
to have been based explicitly upon these criteria. This category of cases
is really a variant of the first category.39
[…] The third category concerns cases involving a common
design where one of the perpetrators commits an act which, while outside
the common design, is nevertheless a natural and foreseeable consequence
of the effecting of that common purpose. An example of this would be a
common, shared intention on the part of a group to forcibly remove members
of one ethnicity from their town, village or region (in other words to
effect “ethnic cleansing”) with the consequence that, in the course of
doing so, one or more of the victims is killed. While murder may not have
been explicitly acknowledged to be part of the common design, it was nevertheless
foreseeable that the forcible removal of civilians at gunpoint might well
result in the deaths of one or more of those civilians. Criminal responsibility
may be imputed to all participants within the common enterprise where
the risk of death occurring was both a predictable consequence of the
execution of the common design and the accused was either reckless or
indifferent to that risk […]. The case law in this category concerned
first of all cases of mob violence, that is situations of disorder where
multiple offenders act out a common purpose, where each of them commit
offences against the victim but where it is unknown or impossible to ascertain
exactly which acts were carried out by which perpetrator, or when the
causal link between each act and the eventual harm caused to the victims
is similarly indeterminate. The cases most illustrative of this category
are Essen Lynching and Borkum Island.40
- The same Judgement then sets out the constituent elements of the actus
reus and mens rea of this form of liability. The Appeals Chamber
declares that the actus reus of this mode of participation in one of
the crimes provided for in the Statute is common to each of the three categories
of cases set out above and comprises the following three elements:
(i) A plurality of persons. They need not be
organised in a military, political or administrative structure, as is
demonstrated clearly by the Essen Lynching and the Kurt Goebell
cases.
(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 (murder, extermination, torture, rape,
etc.), but may take the form of assistance in, or contribution to, the
execution of the common plan or purpose.41
- The Appeals Chamber considered that the mens rea differs according
to the category of common design under consideration:
- The first category of cases requires the intent to perpetrate a specific
crime (this intent being shared by all the co-perpetrators).
- For the second category which, as noted above, is a variant of the first,
the accused must have personal knowledge of the system of ill-treatment
(whether proven by express testimony or inferred from the accused’s position
of authority), as well as the intent to further this concerted system of
ill-treatment.
- The third category requires the intent 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, in 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.42
2. Differences between participating in the joint
criminal enterprise as a co-perpetrator and aiding and abetting
- Also in the Tadic Appeals Judgement, the Appeals Chamber made a
clear distinction between acting in pursuance of a common purpose or design
to commit a crime and aiding and abetting the commission of a crime.
(i) The aider and abettor is always an accessory to
a crime perpetrated by another person, the principal.
(ii) In the case of aiding and abetting no proof is
required of the existence of a common concerted plan, let alone of the
pre-existence of such a plan. No plan or agreement is required: indeed,
the principal may not even know about the accomplice’s contribution.
(iii) The aider and abettor carries out acts specifically
directed to assist, encourage or lend moral support to the perpetration
of a certain specific crime (murder, extermination, rape, torture, wanton
destruction of civilian property, etc.), and this support has a substantial
effect upon the perpetration of the crime. By contrast, in the case of
acting in pursuance of a common purpose or design, it is sufficient for
the participant to perform acts that in some way are directed to the furthering
of the common plan or purpose.
(iv) In the case of aiding and abetting, the requisite
mental element is knowledge that the acts performed by the aider and abettor
assist the commission of a specific crime by the principal. By contrast,
in the case of common purpose or design more is required (i.e., either
intent to perpetrate the crime or intent to pursue the common criminal
design plus foresight that those crimes outside the criminal common purpose
were likely to be committed), as stated above.43
III. KRNOJELAC’S APPEAL
- As indicated previously and in the light of the application of the review
criteria on appeal, the Appeals Chamber will examine the merits of only the
second and fifth grounds of appeal presented by Krnojelac in support of his
appeal.
A. Krnojelac’s second ground of appeal: aiding
and abetting persecution (imprisonment and living conditions)
- Krnojelac requests the Appeals Chamber to overturn the Trial Chamber’s
finding of guilt in respect of persecution (imprisonment and inhumane acts
based on the living conditions imposed on the non-Serb civilian detainees)
as a crime against humanity.44 He breaks
his argument down into three main sub-grounds presented as errors of law.
He disputes the Trial Chamber’s finding that he was an aider and abettor to
the crime of persecution based on imprisonment (1) without specifying on which
acts or omissions this finding is based or how he played a significant role
in the commission of the crimes in question by the principal offenders, (2)
without establishing unequivocally that he knew that, by his acts or omissions,
he was contributing significantly to the underlying crime committed by the
principal offenders (imprisonment as persecution) and that he was aware of
the discriminatory intent of those perpetrators and (3) without requiring
that an aider and abettor to the crime of persecution share the discriminatory
intent of the perpetrator(s) of the offence. Krnojelac alleged the same errors
of law in respect of his conviction as an aider and abettor to the crime of
persecution based on living conditions. In dealing with the first allegation,
the Appeals Chamber will examine each of the two crimes underlying the crime
of persecution separately (imprisonment and living conditions). It will then
do the same for the second allegation before going on to examine the third
alleged error of law, in respect of which no distinction need be made between
the two underlying crimes.
1. First sub-ground: Krnojelac’s acts or omissions
and their significance for the commission of the crime of persecution
based on imprisonment and living conditions
- Krnojelac asserts that the Trial Chamber committed an error of law when
it found him guilty of aiding and abetting persecution based on the imprisonment
of the non-Serb civilian detainees and the living conditions to which they
were subjected without stating how he had contributed significantly to the
commission of the crimes by the principal perpetrators.
- The Appeals Chamber will first examine the merits of this sub-ground in
relation to imprisonment and then to the living conditions. The Appeals Chamber
considers this sub-ground an allegation of insufficient reasoning for the
actus reus of aiding and abetting. As a preliminary observation, it
notes that, by his acts or omissions, the aider and abettor must assist, encourage
or lend moral support to the principal perpetrator of the crime and this support
must have a substantial effect upon the perpetration of the crime.45
(a) Imprisonment
- Krnojelac holds that the Trial Chamber established only that he was present
at the scene of the crime, whereas the Judgment states that presence alone
cannot constitute aiding and abetting.46
He contends that the Trial Chamber omitted to state clearly and unequivocally
the concrete acts and omissions by which he made a significant contribution
to the perpetration of the crime of persecution based on imprisonment. The
Prosecution responds that, on the contrary, the Trial Chamber meticulously
analysed Krnojelac’s duties as prison warden and clearly noted that, by discharging
his duties, he assisted the principal perpetrators of the crimes in maintaining
an unlawful system. The Prosecution also submits that Krnojelac failed to
show that the finding was unreasonable.47
It further argues that it was legally permissible for the Trial Chamber to
find that Krnojelac had become an aider and abettor to the crime by omission
- for example by failing to prevent it - if such an omission had a direct
and significant effect on the perpetration of the crime.48
- The Appeals Chamber notes that the text of the Judgment is at odds with
Krnojelac’s assertion that the Trial Chamber failed to specify by which acts
or omissions he assisted, encouraged or lent moral support to the principal
perpetrators of the crime of persecution based on the imprisonment of the
non-Serb civilian detainees which had a substantial effect on the perpetration
of the crime by those perpetrators. The Appeals Chamber notes specifically
that, in the chapter of the Judgment dealing with Krnojelac’s position as
prison warden, the Trial Chamber found that he “held the position of warden,
as that term is generally understood,”49
and stated that the “position of prison warden, in the ordinary usage of the
word, necessarily connotes a supervisory role over all prison affairs.”50
The Trial Chamber further established that Krnojelac had voluntarily accepted
the post and resigned only in June 1993.51
It examined the nature of his duties as warden more thoroughly in paragraphs
102 to 107 of the Judgment where it stated that it was satisfied that the
lease agreement signed by Krnojelac related only to the use by the military
of the property of the KP Dom and that Krnojelac retained all powers associated
with the pre-conflict position of prison warden, including measures taken
to prevent escapes and supervision of camp supplies.52
- The Appeals Chamber observes that the Trial Chamber did not reiterate these
findings in the section of the Judgment dealing with Krnojelac’s responsibility
for the persecution based on imprisonment. The Appeals Chamber notes that
the Trial Chamber did however conclude in that section that Krnojelac held
the most senior position within the KP Dom53
and that he had allowed civilians to be detained knowing that their detention
was unlawful.54 The Trial Chamber also
referred to its finding that Krnojelac had accepted the position of warden
voluntarily and that he could have refused or resigned from the position but
chose not to do so.55 The Trial Chamber
was likewise satisfied that Krnojelac knew that his acts and omissions were
contributing to the maintenance of the unlawful system of imprisonment by
the principal offenders.56 It is the
opinion of the Appeals Chamber that, in so doing, the Trial Chamber implicitly
referred to its findings in the previous chapter of the Judgment describing
Krnojelac’s acts.
- The Appeals Chamber therefore dismisses the first limb of Krnojelac’s sub-ground
to the effect that there was insufficient reasoning with regard to the determination
of his acts or omissions significantly contributing to the perpetration of
the underlying crime of imprisonment.
(b) Living conditions
- Krnojelac argues first that the Trial Chamber did not specify which of
his concrete acts and omissions furthered the persecution based on living
conditions at the KP Dom. He also contends that the Trial Chamber did not
establish either the part he played in the persecution or how significant
it was.57 The Prosecution responds that
this assertion is without foundation. It adds that the Trial Chamber concluded
that Krnojelac took part in the persecution by (1) carrying out the duties
of prison warden and the most senior person at the KP Dom, and (2) failing
to take the measures required by the offences which he was aware were being
committed against the detainees under his authority, thereby encouraging the
principal offenders.58 In addition, Krnojelac
argues that the Trial Chamber did not establish the part he allegedly played
in “the creation of such living conditions”,59
to which the Prosecution responds that an aider and abettor need not necessarily
have taken part in creating a system.60
- The Appeals Chamber takes the view that the Prosecution did not need to
prove that Krnojelac was responsible for creating the living conditions imposed
on the non-Serb detainees in order to establish his liability as an aider
and abettor to the principal offenders who established and maintained those
conditions. It was enough that Krnojelac consciously and significantly contributed
to the maintenance of the living conditions. The Appeals Chamber notes that
the Trial Chamber found that Krnojelac knew in what conditions the non-Serb
detainees were being held and the effects this was having on their physical
and psychological health,61 was aware
of the intent of the principal offenders, guards and military authorities,
and knew that his failure to take any action as warden in relation to this
knowledge contributed in a substantial way to the continued maintenance of
those conditions by encouraging the principal offenders to maintain them.62
For this reason, the Appeals Chamber points out that, contrary to Krnojelac’s
assertions, the Trial Chamber did characterise the omission justifying his
conviction as an aider and abettor to the perpetrators responsible for the
inhumane living conditions imposed upon the non-Serb detainees.
- The Appeals Chamber therefore dismisses the second claim of Krnojelac’s
sub -ground alleging insufficient reasoning insofar as it relates to the determination
of his acts or omissions which significantly contributed to the maintenance
of the living conditions. The Appeals Chamber will now turn to the second
sub-ground of this ground of appeal.
2. Second sub-ground: Krnojelac’s awareness that,
by his acts or omissions, he was contributing significantly to the underlying
crimes committed by the principal offenders (persecution based on imprisonment
and living conditions) and his knowledge of the offenders’ discriminatory
intent
- In contrast to the previous sub-ground, this relates not to the actus
reus of aiding and abetting persecution but to the mens rea. Likewise,
the Appeals Chamber considers that an error of fact is being alleged rather
than an error of law. The Appeals Chamber will consider the two limbs of the
second sub- ground in turn, examining imprisonment first and then living conditions.
(a) Imprisonment
- Krnojelac submits that the Trial Chamber did not establish unequivocally
that he knew that, by his acts or omissions, he was significantly contributing
to the commission of the crime of imprisonment by its perpetrators and that
they were acting in pursuance of a discriminatory objective.63
- First of all, the Appeals Chamber notes that the Trial Chamber concluded
that Krnojelac knew that his acts and omissions were contributing to the system
of unlawful imprisonment in place at the KP Dom.64
It also observes that the Trial Chamber found that Krnojelac had voluntarily
accepted the position of KP Dom warden in full awareness that non-Serb civilians
were being illegally detained there because of their ethnicity. The Trial
Chamber stated that when he first arrived at the KP Dom, Krnojelac asked who
was being detained and why, and the response he was given was that the prisoners
were Muslims and were being detained for that reason. It went on to state
that Krnojelac knew that none of the procedures in place for legally detained
persons was ever followed at the KP Dom.65
The Appeals Chamber points out that the Trial Chamber is, in principle, better
placed to determine the probative value of the evidence presented at trial.66
Here, Krnojelac does not try to demonstrate that the findings of fact at issue
were unreasonable and, for this reason, the Appeals Chamber dismisses the
arguments put forward.
(b) Living conditions
- The Appeals Chamber notes that the Trial Chamber stated that a number of
detainees gave evidence that they met with Krnojelac and told him about their
suffering and that Krnojelac admitted to habitually meeting with detainees
and confirmed that, during these conversations, the detainees discussed the
living conditions at the KP Dom.67 The
Appeals Chamber reiterates that the Judgment contains many findings of fact
detailing the living conditions imposed upon the non-Serb detainees. The Appeals
Chamber also observes that the Trial Chamber expressly held that it was obvious
to Krnojelac, as it would have been to anyone at the KP Dom, that the disparity
between the treatment of the non-Serb and Serb detainees was deliberate and
was effected by the intention of the principal offenders to discriminate against
the non-Serb detainees on religious and political grounds.68
The Appeals Chamber points out that Krnojelac does not try to show that the
Trial Chamber's findings were unreasonable and therefore dismisses the arguments
on this point.
3. Third sub-ground: the mens rea of the
aider and abettor in an act of persecution
- The Appeals Chamber will now turn to examine the third sub-ground of Krnojelac’s
second ground of appeal. Krnojelac alleges an error of law which raises the
issue of whether, in order to establish the mens rea of the aider and
abettor in an act of persecution, it is enough to show that the individual
concerned voluntarily aided or encouraged the principal offender in the knowledge
that the latter was acting with discriminatory intent or whether it must also
be shown that the aider and abettor too had that intent.
- Krnojelac argues that, for the crime of persecution, the aider and abettor
must have the same guilty discriminatory intent as the principal offenders69
and that it was not established that he had this intent.70
The Prosecution disputes the merits of this test and argues that the test
identified by the Trial Chamber should be applied, that is, that the aider
and abettor must know that the principal offender has the intent to commit
the crimes and, in so doing, to discriminate.71
In the alternative, the Prosecution submits that, should the ground raised
by Krnojelac be upheld, the Appeals Chamber should substitute the conviction
on count 1 of the Indictment (persecution based on imprisonment) with another
on count 11 (imprisonment as a crime against humanity).72
- The Appeals Chamber draws attention to the distinction between the mental
element required for aiding and abetting and that required for co-perpetration.
In the case of aiding and abetting, the requisite mental element is knowledge
that the acts committed by the aider and abettor further the perpetration
of a specific crime by the principal offender. In the case of co-perpetration,
the intent to perpetrate the crime or to pursue the joint criminal purpose
must be shown.73 The Appeals Chamber
also recalls that in the Aleksovski Appeals Judgement it followed the
Furundzija Judgement and held that “it is not necessary to show that
the aider and abettor shared the mens rea of the principal, but it
must be shown that […] the aider and abettor was aware of the essential elements
of the crime which was ultimately committed by the principal.”74
The Appeals Chamber also stated that “the aider and abettor [must be aware]
of the essential elements of the crime committed by the principal (including
his relevant mens rea).” The Appeals Chamber notes that no cogent reason
was given which would justify this case-law being amended.75
- The Appeals Chamber considers that the aider and abettor in persecution,
an offence with a specific intent, must be aware not only of the crime whose
perpetration he is facilitating but also of the discriminatory intent of the
perpetrators of that crime. He need not share the intent but he must be aware
of the discriminatory context in which the crime is to be committed and know
that his support or encouragement has a substantial effect on its perpetration.
The Appeals Chamber points out that this is the very criterion applied by
the Trial Chamber in this case in paragraphs 489 and 490 of the Judgment.
The Appeals Chamber states that the third sub-ground of Krnojelac’s second
ground of appeal is also therefore ill-founded.
- Accordingly, the Appeals Chamber dismisses the second ground of appeal.
B. Krnojelac’s fifth ground of appeal: superior
responsibility for the beatings inflicted on detainees
- Krnojelac submits that the Trial Chamber erred in finding him guilty of
inhumane acts and cruel treatment based on beatings as a superior within the
meaning of Article 7(3) of the Statute.76
He asks the Appeals Chamber to overturn the convictions on counts 5 and 7
of the Indictment.77
- Generally, Krnojelac argues that the Trial Chamber erred in concluding
that he knew that beatings were being inflicted on the detainees. He challenges
the three main parts of the evidence discussed below on which the Trial Chamber
relied in determining whether he had the requisite knowledge. The Appeals
Chamber observes that the Defence makes a number of submissions, including
allegations of contradictions and errors in the Trial Chamber’s reasoning
with respect to these three parts of the evidence. It should be noted that,
in accordance with the applicable review criteria for errors on appeal,78
the Appeals Chamber will deal only with submissions which satisfy the burden
of proof on appeal and not with those which merely seek to contradict the
Trial Chamber's findings.
1. Beatings inflicted on Ekrem Zekovic
- The Defence challenges paragraph 309 of the Judgment in which the Trial
Chamber did not accept as credible Krnojelac’s assertion that he did not witness
Zekovic being beaten or see any marks or indication which might have led him
to conclude that he might have been beaten. The Defence especially challenges
the Trial Chamber’s finding that:
[…] the Accused intervened to stop the beating of Zekovic
by one of the KP Dom guards. This guard, Milenko Burilo, continued to
attack Zekovic while being taken away by the Accused. At some point, Burilo
threw Zekovic against a wall as a result of which the latter lost consciousness.
The evidence of the Accused on that point does not cause the Trial Chamber
to have any reasonable doubt that Zekovic was telling the truth.79
In essence, the Defence argues that “the Trial Chamber established that
this incident happened on 8 or 9 July 1993, namely at [a] time when [Krnojelac]
was no longer, even formally, warden of the KPD.”80
The Defence claims that superior responsibility could therefore not be attributable
to Krnojelac.81
- Contrary to the Defence's assertions, the Appeals Chamber sees no contradiction
or inconsistency in the Trial Chamber’s findings. In paragraph 96 of the Judgment
the Trial Chamber notes that: “[Krnojelac] was, by his own admission, warden
of the KP Dom prison facility from 18 April 1992 until the end of July 1993.”
It further stated that “[Krnojelac] gave evidence that he ceased working at
the KP Dom at the end of July 1993.”82
Since the beatings were inflicted on Zekovic on 9 July 1993, that is several
weeks before he ceased to be warden, it is not unreasonable for the Trial
Chamber to hold that Krnojelac was prison warden at the material time.
2. Krnojelac knew that beatings were taking place
- The Defence contends that, in paragraph 310 of the Judgment, the Trial
Chamber erroneously relied on the fact that several of the detainees had informed
Krnojelac of the beatings in order to conclude that he was aware of them.83
It states that “[i]t is logical that what the detainees told the Accused need
not have been necessarily true, or that the Accused was bound to accept that
without any reservation or doubt. […] [Moreover,] [t]here is not a single
reliable [piece of] evidence of such issues and the Defence is of the opinion
that the Trial Chamber cannot take this example as proof that the Accused
had learned of these beatings.”84 The
Defence further argues that the examples given of alleged sounds indicative
of beatings reported to Krnojelac date from the period when Krnojelac had
just begun working at the KP Dom.
- The Appeals Chamber considers that the question for the Trial Chamber was
not whether what was reported to Krnojelac was in fact true but whether the
information he received from the detainees was enough to constitute “alarming
information” requiring him, as superior, to launch an investigation or make
inquiries. In this instance, the Defence failed to show that the Trial Chamber’s
finding on this point was unreasonable. Furthermore, the fact that Krnojelac
had just begun working at the KP Dom cannot reasonably be said to be a factor
mitigating his duty to investigate or his responsibility.
3. Visible traces of beatings on the detainees
- The Defence points to the following inconsistencies:
- the Trial Chamber itself found that some of the detainees already had
traces of blows when they arrived at the KP Dom and it therefore erred in
concluding from this that Krnojelac must therefore have known that the detainees
were being beaten in the camp;85
- a great number of witnesses for the Prosecution stated that the beatings
usually took place mostly and almost exclusively in the evening when, according
to their testimony, Krnojelac was not in the KP Dom.86
- The Appeals Chamber considers that the first allegation by no means proves
that the Trial Chamber’s finding in paragraph 311 of the Judgment is wrong.
The Appeals Chamber notes the Trial Chamber’s finding that “StChe consequences
of the mistreatment upon the detainees, the resulting difficulties
that some of them had in walking, and the pain which they were in must have
been obvious to everyone.”87 The fact
that some of the detainees had injuries when they arrived does not make the
Trial Chamber’s finding unreasonable.
- As regards the second allegation, the Appeals Chamber recalls that what
is important is what Krnojelac saw when he was at the KP Dom. It is not unreasonable
for a Trial Chamber to hold that Krnojelac had sufficient information to put
him on notice that beatings were being given and that the guards of the KP
Dom were involved in giving them.88
- This ground of appeal must therefore be dismissed.
IV. THE PROSECUTION’S APPEAL
A. The Prosecution’s first ground of appeal: definition
of participation in a joint criminal enterprise and its application in
this instance
- The first ground of appeal raised by the Prosecution alleges errors of
law in the Trial Chamber’s definition of the constituent elements of participation
in a joint criminal enterprise89 and
in the application of this definition to the facts of the case. The Prosecution
considers that, had the definition of joint criminal enterprise been applied
correctly, Krnojelac would have been found guilty as a co-perpetrator and
not as an aider and abettor to the crimes of persecution (imprisonment and
inhumane acts) and cruel treatment (living conditions), pursuant to counts
1 and 15 of the Indictment. The Prosecution therefore asks for the verdict
to be amended and the sentence increased.90
1. Alleged errors of law in the definition of participation
in a joint criminal enterprise
- The Prosecution relies on the definition of participation in a joint criminal
enterprise as a form of “commission” within the meaning of Article 7(1) of
the Statute as set out in the Tadic Appeals Judgement. It argues that
this was followed in the Krstic and Kvocka Judgements,91
while conceding that certain first instance decisions do not follow it.92
According to the Prosecution, the “commission” of a crime under Article 7(1)
of the Statute means not only that the accused actively committed the various
constituent elements of the crime but also that he committed them with others
as co-perpetrator, through participation in a joint criminal enterprise.93
- The Prosecution submits that the Trial Chamber committed four errors of
law in defining the elements of responsibility arising from participation
in a joint criminal enterprise.
(a) Identification of a third category of “participant”
- The Prosecution maintains that the Trial Chamber committed an error of
law when it classified the responsibility of a participant in a joint criminal
enterprise as a form of “accomplice liability” distinct from the commission
of the crime.94 According to the Prosecution,
this approach is tantamount to finding three types of responsibility: the
principal offender who physically commits the crime, the co-perpetrator who
participates in the joint criminal enterprise without physically committing
it and the aider and abettor who knowingly contributes to the criminal enterprise
without sharing the intent.95 The Prosecution
argues that this distinction between the principal offender and the co-perpetrator
runs contrary to the Tadic Appeals Judgement, which does not differentiate
between those who perform the actus reus of the crime and those who
significantly contribute to it and share the intent.96
The Prosecution also challenges the Trial Chamber’s findings in paragraphs
75 to 77 of the Judgment which, in the Prosecution's view, provides that it
is not necessary to distinguish between the different types of participant
in the crime when it comes to sentencing.97
- In support of its argument, the Prosecution refers to paragraph 77 of the
Judgment, of which the relevant part of the authoritative English version
reads as follows :
[…] This Trial Chamber, moreover, does not, with respect,
accept the validity of the distinction which Trial Chamber I has sought
to draw between a co-perpetrator and an accomplice. This Trial Chamber
prefers to follow the opinion of the Appeals Chamber in Tadic,
that the liability of the participant in a joint criminal enterprise
who was not the principal offender is that of an accomplice. For convenience,
however, the Trial Chamber will adopt 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.98
- Krnojelac contends that this submission is mere speculation since he was
not found guilty as a participant in a joint criminal enterprise but as an
aider and abettor. He adds that, even if the Prosecution’s theoretical submissions
with regard to the joint criminal enterprise are valid, it has not been proved
that he shared the intent of the participants in the joint criminal enterprise
and therefore, if the Prosecution’s argument is accepted, he should be found
guilty as a co-perpetrator.99 In reply
to this argument the Prosecution states that “this issue was raised for the
purpose of having an erroneous legal finding corrected by the Appeals Chamber,
and did not strictly relate to the Respondent’s conduct and the crimes attributed
to him.”100
- The Appeals Chamber considers that the Prosecution’s argument raises the
question of the meaning given to the term accomplice by the Trial Chamber.
The Appeals Chamber notes first of all that, in the case-law of the Tribunal,
even within a single judgement, this term has different meanings depending
on the context and may refer to a co-perpetrator or an aider and
abettor.101
- The Appeals Chamber notes that, although the French version of the Tadic
Appeals Judgement faithfully reflects the meaning given by the Appeals
Chamber to the term accomplice depending on the context, the same cannot
be said of the French version of the Judgment under appeal. Thus, in paragraph
77 of the French version of the Judgment, even though footnote 230 specifies
that an accomplice in a joint criminal enterprise is a person who shares
the intent to carry out the enterprise and whose acts facilitate the commission
of the agreed crime,102 the term accomplice
was translated by complice instead of coauteur in the body
of the paragraph.
- The Appeals Chamber will now consider the question whether or not the Trial
Chamber erred in its use of the terms accomplice and co-perpetrator,
that is “coauteur”, with regard to the participants in a joint criminal
enterprise other than the principal offender. The Appeals Chamber notes that,
in so doing, the Trial Chamber used the terminology of the Tadic Appeals
Judgement. The Trial Chamber noted in paragraph 77 of the Judgment under appeal
that “for convenience […] the Trial Chamber will adopt 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.” Footnote
230 then clarifies that an accomplice in a joint criminal enterprise
is a person who shares the intent to carry out the enterprise and whose acts
facilitate the commission of the agreed crime. The Appeals Chamber holds that
the Trial Chamber has not therefore erred in its use of the terms accomplice
and co-perpetrator.
- The Appeals Chamber will next consider whether or not the Trial Chamber
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. Although it considered that “the seriousness of
what is done by a participant in a joint criminal enterprise who was not the
principal offender is significantly greater than what is done by one who merely
aids and abets the principal offender,”103
the Trial Chamber held that the term “committed” did not apply to a participant
in a joint criminal enterprise who did not personally and physically commit
the crime. On this point, the relevant passage of the Judgment is in paragraph
73 and reads as follows in the authoritative English version:
[…] The Prosecution has sought to relate the criminal
liability of a participant in a joint criminal enterprise who did not
physically commit the relevant crime to the word “committed” in Article
7(1), but this would seem to be inconsistent with the Appeals Chamber’s
description of such criminal liability as a form of accomplice liability
Sfootnote, referring to Tadic Appeals Judgement, para. 192C and
with its definition of the word “committed” as “first and foremost the
physical perpetration of a crime by the offender himself” [footnote, referring
to Tadic Appeals Judgement, para. 188]. For convenience, the Trial
Chamber proposes to refer to the person who physically committed the relevant
crime as the “principal offender”.104
Unlike the Trial Chamber, the Appeals Chamber does not consider that the
Prosecution’s submission is contrary to the Tadic Appeals Judgement.
The Appeals Chamber notes that paragraph 188 of the Tadic Appeals
Judgement, partially quoted by the Trial Chamber, reads as follows:
This provision [Article 7(1) of the Statute] covers
first and foremost the physical perpetration of a crime by the offender
himself, or the culpable omission of an act that was mandated by a rule
of criminal law. However, the commission105
of one of the crimes envisaged in Articles 2, 3, 4 or 5 of the Statute
might also occur through participation in the realisation of a common
design or purpose.
The Appeals Chamber accepts the Prosecution submission as justified and
points out that it has since been upheld in the Ojdanic case. The
Chamber views participation in a joint criminal enterprise as a form of
“commission” under Article 7(1) of the Statute. For more detail on this
point, the Appeals Chamber refers to the section of this Judgement on the
applicable law.106
- However, the Appeals Chamber considers that the Trial Chamber’s error is
not such as to render the Judgment invalid and notes that the Prosecution
is asking only for the erroneous legal findings on this point to be corrected.
- Finally, the Appeals Chamber will consider the Prosecution submission on
the Trial Chamber’s findings in paragraphs 75 and 77 of the Judgment relating
to whether or not a distinction must be made between the principal offender
and the other participants in a joint criminal enterprise when determining
the sentence. The Trial Chamber considered that such a distinction was not
necessary when assessing the maximum sentence to be passed on each individual.107
It emphasised that the sentence should reflect the serious nature of the acts
whatever their classification and that there were circumstances in which a
participant in a joint criminal enterprise might deserve a higher sentence
than the principal offender.108 It also
stated that the acts of a participant in a joint criminal enterprise are more
serious than those of an aider and abettor to the principal offender since
a participant in a joint criminal enterprise shares the intent of the principal
offender whereas an aider and abettor need only be aware of that intent. The
Appeals Chamber considers that the Prosecution did not show those findings
to be erroneous.
(b) Erroneous conflation of the first two categories
of joint criminal enterprise
- The error alleged here covers two objections with regard to paragraph 81
of the Judgment. The Prosecution submits firstly that the Trial Chamber erred
in law by conflating the first two categories of joint criminal enterprise
into a single category.109
- Paragraph 81 of the Judgment reads as follows:
A person participates in that joint criminal enterprise
either:
(i) by participating directly in the commission110
of the agreed crime itself (as a principal offender);
(ii) 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 commit111
that crime; or
(iii) 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 Prosecution maintains that this wording does not cover the entire range
of criminal actions set out in the definition of the first two categories
of joint criminal enterprise given in the Tadic Appeals Judgement.
It holds that the wording of paragraph 81 requires that a participant in the
joint criminal enterprise who is absent at the time of the facts should belong
to a criminal system. If the criminal enterprise cannot be characterised
as a system, an individual, for example a political leader, who played an
important role in organising and planning a joint criminal enterprise but
who was absent at the time of the facts, cannot be held liable. The Prosecution
states that, according to the Tadic Appeals Judgement, two of the elements
of the actus reus required for a joint criminal enterprise are (1)
a plurality of persons and (2) a joint criminal design. That a system existed
was envisaged only in relation to the second form of joint criminal enterprise
identified on the basis of cases which relied on a “system of ill-treatment
” and is not a general condition applicable to other forms of joint criminal
enterprise.
- Generally, Krnojelac objects to the Trial Chamber’s having conflated these
two forms of liability. He also states that the second form of liability,
linked to the existence of a system, is presented in the Tadic Appeals
Judgement as a variant of the first, specific to the concentration camp cases
tried after the Second World War, and must not be applied to other detention
camp cases such as this.112 The Prosecution
replies that this Defence submission is unfounded and was clearly rejected
in the Kvocka Judgement, which referred to events occurring in a detention
camp in the context of the conflict in the former Yugoslavia.113
- The Appeals Chamber notes that, in paragraphs 80 and 81 of the Judgment
under appeal, the Trial Chamber defines the basic forms of joint criminal
enterprise.114 The Appeals Chamber observes
that, in paragraph 80 of the Judgment, the Trial Chamber defines the understanding
which characterises a joint criminal enterprise and, in paragraph 81, lists
the types of conduct which it considers characterise the different forms of
participation in a joint criminal enterprise. The Appeals Chamber understands,
moreover, that in this list the Trial Chamber intends to identify all the
forms of participation in a joint criminal enterprise. The Appeals Chamber
finds that the Prosecution’s objection that the Trial Chamber arbitrarily
conflated the first two forms of participation in a joint criminal enterprise
is unfounded. The three forms of participation described by the Chamber are
clearly alternatives in view of the use of the word “either” in the sentence
– “A person participates in that joint criminal enterprise either:” – and
the Trial Chamber goes on to set out the different forms of participation.
- The Appeals Chamber will now consider the Prosecution’s second objection
relating to the Trial Chamber’s use of the words “by being present at the
time when the crime is committed” in the second form of participation set
out in sub-paragraph (ii). The Appeals Chamber notes that, in accordance with
its decision in the Tadic Appeals Judgement, once a participant in
a joint criminal enterprise shares the intent of that enterprise, his participation
may take the form of assistance or contribution with a view to carrying out
the common plan or purpose. The party concerned need not physically and personally
commit the crime or crimes set out in the joint criminal enterprise. The Appeals
Chamber considers that the presence of the participant in the joint criminal
enterprise at the time the crime is committed by the principal offender is
not required either for this type of liability to be incurred.
- The Appeals Chamber considers that the Judgment contains an obvious contradiction
in this respect between subparagraph (ii) of paragraph 81 and footnote 236
to the following paragraph, which reads as follows:
Decision on Form of Second Amended Indictment, 11 May
2000. In that decision, the direct participant in the joint criminal enterprise,
i.e. the person who physically perpetrates the crime, is referred to as
a co-perpetrator rather than a perpetrator. Given the ambiguity surrounding
the term co-perpetrator engendered by the Prosecution’s arguments referred
to above, the Trial Chamber prefers to use the term principal offender
to make it clear that it is only the person who physically carries out
the crime personally that commits that crime. In paragraph (ii), the
Trial Chamber refers to a person being present at the time the offence
is committed by another. However, presence at the time a crime is committed
is not necessary. A person can still be liable for criminal acts carried
out by others without being present – all that is necessary is that the
person forms an agreement with others that a crime will be carried out.115
That decision shows that the list in paragraph 81 of the Judgment is taken
entirely from paragraph 15 of the decision with the following difference:
footnote 24 to point (ii) of the decision states that “the presence of that
person at the time when the crime is committed and a readiness to give aid
if required is sufficient to amount to an encouragement to the other participant
in the joint criminal enterprise to commit the crime.” Consequently, the
Appeals Chamber is satisfied that the Trial Chamber sought in its Judgment
to correct the list taken from its decision of 11 May 2000 by specifying
that a participant in a joint criminal enterprise need not be present at
the time the crime is committed by the principal offender. This clarification
appears in a footnote and seems to contradict the body of the Judgment.
However, the Appeals Chamber is satisfied that this is a drafting error
and not an error of law. The Prosecution’s ground of appeal is therefore
also rejected on this point.
(c) Scope of the common state of mind and required
additional agreement
- The first error of law pleaded by the Prosecution in this regard relates
to paragraph 83 of the Judgment. The Prosecution contends that the Trial Chamber
committed an error of law when it held that, in order to establish the basic
form of joint criminal enterprise, 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.”
The Prosecution argues that this is not required according to Tadic.
The Prosecution adds that such an approach could render the notion of joint
criminal enterprise redundant in the context of State criminality.116
It gives as an illustration 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 Prosecution argues that, in that context, the Trial Chamber’s criterion
would make it impossible to implement the concept of joint enterprise.
- The Appeals Chamber finds that, apart from the specific case of the extended
form of joint criminal enterprise, the very concept of joint criminal enterprise
117 presupposes that its participants,
other than the principal perpetrator(s) of the crimes committed, share the
perpetrators’ joint criminal intent. The Appeals Chamber notes that the Prosecution
does not put forward any contrary arguments and does not show how this requirement
contravenes the Tadic Appeals Judgement, as it alleges. The Appeals
Chamber also notes that the example given by the Prosecution in support of
its argument on this point appears more relevant to the planning of a crime
under Article 7(1) of the Statute than to a joint criminal enterprise.
- The second error of law raised by the Prosecution concerns the Trial Chamber’s
requirement that a participant in a joint enterprise, who is not a principal
offender, must have agreed with the principal offender or offenders to commit
the various crimes constituting the joint criminal enterprise. The Prosecution
argues that such a requirement is incompatible with the context of a system
of ill-treatment as set out in the Tadic Appeals Judgement in the second
category of cases.118 The Prosecution
submits that a person who holds the highest position of authority in a system
where detainees are being ill-treated on discriminatory grounds, who knows
that crimes are being committed within it and furthermore contributes to those
crimes, cannot be considered a mere aider and abettor to the crimes but must
be deemed a co-perpetrator. The Prosecution also contends that the Trial Chamber’s
approach is tantamount to denying the specific nature of the system and to
“slicing ” it into unconnected events prior to assessing whether, for each
incident or set of events, there existed between the physical perpetrators
and the person in authority an agreement, which was not raised in evidence
and which was not legally necessary. The Prosecution maintains that, once
the accused knowingly and wilfully joins a system of ill-treatment and contributes
to it significantly, the relevant “agreement ” is either subsumed in or replaced
by acceptance of the system as a whole, including its way of functioning and
the results over time, as inferred from knowledge of the system of ill-treatment
and intent to further it.
- Krnojelac argues that, “for the sake of [the] basic principles of international
criminal justice, it is necessary to precisely assess each and every criminal
offence committed during the existence of a joint criminal enterprise because
it is the only way to precisely establish [the] criminal liability of accused
persons.”119
- The Appeals Chamber notes that, in fact, the Prosecution is asking the
following two questions:
- Did the Trial Chamber err in law by partitioning the different types
of crimes which form the joint criminal enterprise?
- Did the Trial Chamber err in law by requiring proof of an agreement
between Krnojelac and the principal perpetrators of the crimes in question?
The Appeals Chamber will examine the questions in turn.
(i) Did the Trial Chamber err in law by partitioning
the different types of crimes which form the joint criminal enterprise?
- The Prosecution alleges that the Trial Chamber partitioned the forms of
conduct, which it believed formed part of a system, according to the different
categories of crime underpinning the characterisation of persecution.
- The Appeals Chamber holds that, although the second category of cases defined
by the Tadic Appeals Judgement (“systemic”) clearly draws on the Second
World War extermination and concentration camp cases, it may be applied to
other cases and especially to the serious violations of international humanitarian
law committed in the territory of the former Yugoslavia since 1991. Although
the perpetrators of the acts tried in the concentration camp cases were mostly
members of criminal organisations, the Tadic case did not require an
individual to belong to such an organisation in order to be considered a participant
in the joint criminal enterprise. According to the Tadic Appeals Judgement,
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. For there to be the requisite intent, the accused must have 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. The Prosecution was therefore
able to rely upon this form of joint criminal enterprise.
- The Appeals Chamber notes from the Judgment that the criticism that the
Trial Chamber compartmentalised the types of crime seems justified. The Appeals
Chamber points out that the Trial Chamber did conclude that the principal
perpetrators of the unlawful imprisonment participated in a “system”120
but did not subsequently make any express reference to the concept of system
when determining whether or not Krnojelac shared the common purpose of the
perpetrators of each of the categories of constituent crimes specified in
the Indictment. In order to assess whether or not this amounts to an error
of law, the Appeals Chamber will now examine this approach contextually by
considering which argument appears in the Indictment.
- The Appeals Chamber notes that the Prosecution initially considered the
Accused liable for personally and physically committing the acts constituting
the crime of persecution, as indicated by the wording of the initial indictment.121
Then, in the second amended indictment, the Prosecution charged the Accused
for the first time with having participated in the execution of a common plan
involving the sum of the acts constituting the crime of persecution.
- In its Pre-Trial Brief, the Prosecution then referred to the different
forms of joint criminal enterprise in relation to the Accused’s liability
on the count of persecution. It referred initially to the first category of
basic joint criminal enterprise set out in the Tadic Appeals Judgement
with regard to imprisonment, inhumane living conditions, forced labour and
deportation based on active participation in the crimes forming part of the
common purpose and the failure to prevent or stop them.122
The Prosecution then referred to the systemic form of joint criminal enterprise,
that is to say “a system of repression ”,123
as well as to the extended form of criminal enterprise.124
- However, the Appeals Chamber notes that for the count of persecution, although
the Indictment was issued after the Pre-Trial Brief, it relies on the theory
of a common purpose with the guards and soldiers who entered the camp.
This purpose is defined solely as the sum of the constituent acts charged,
that is imprisonment, torture and beatings, killings, forced labour, inhumane
conditions, deportation and expulsion. Under count 1 of the Indictment, Milorad
Krnojelac is charged with persecuting the Muslim and other non-Serb male civilian
detainees on political, racial or religious grounds from April 1992 until
August 1993 as camp commander at the Foca KP Dom, together with the KP Dom
guards under his command and in common purpose with the guards and
soldiers specified elsewhere in the Indictment. The same Indictment describes
the joint plan as:
a) the prolonged and routine imprisonment and confinement
within the KP Dom facility of Muslim and other non-Serb male civilian
inhabitants of Foca municipality and its environs;
b) the repeated torture and beatings of Muslim and other
non-Serb male civilian detainees at KP Dom;
c) numerous killings of Muslim and other non-Serb male
civilian detainees at KP Dom;
d) the prolonged and frequent forced labour of Muslim
and other non-Serb male civilian detainees at KP Dom;
e) the establishment and perpetuation of inhumane conditions
against Muslim and other non-Serb male civilian detainees within the KP
Dom detention facility; and
f) the deportation and expulsion of Muslim and other
non-Serb civilians detained in the KP Dom detention facility to Montenegro
and other places which are unknown.
- The Appeals Chamber notes that the Trial Chamber clearly followed the approach
taken in the Indictment since, for each aspect of the common purpose pleaded
by the Prosecution, it sought to determine whether Krnojelac shared the intent
of the principal offenders. The Appeals Chamber finds that such an approach
corresponds more closely to the first category of joint criminal enterprise
than to the second. However, given that the Prosecution did not provide a
more suitable definition of common purpose when referring to the systemic
form of joint criminal enterprise, this approach does not amount to an error
of law.125 The Appeals Chamber will
now consider the second issue raised by this sub-ground of appeal.
Did the Trial Chamber err in law
by requiring proof of an agreement between Krnojelac and the principal perpetrators
of the crimes in question?
- The Appeals Chamber starts by observing that, as the Prosecution alleges,
it is apparent from the Judgment that the Trial Chamber required proof of
an agreement between Krnojelac and the principal offenders when it assessed
whether he could be held personally liable as a participant in the joint criminal
enterprise. In so doing, the Trial Chamber held that the Prosecution had to
establish (1) that there was an agreement between Krnojelac, the prison guards
and the military authorities to subject the non-Serb detainees to the inhumane
conditions which constituted inhumane acts and cruel treatment, and that each
of the participants in the enterprise, including Krnojelac, shared the intent
to commit that crime;126 and (2) that
there was an agreement between Krnojelac and the other participants Sguards
and soldiersC to persecute the said detainees by way of the underlying crimes
found to have been committed, and that the principal offenders and Krnojelac
shared the intent required for each of the underlying crimes and the intent
to discriminate in their commission.127
- The Appeals Chamber notes that, with regard to the crimes considered within
a systemic form of joint criminal enterprise, the intent of the participants
other than the principal offenders presupposes personal knowledge of the system
of ill -treatment (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 of ill-treatment. Using these criteria, it is less important
to prove that there was a more or less formal agreement between all the participants
than to prove their involvement in the system. As the Appeals Chamber recalled
in the Tadic Appeals Judgement, in his summary of the Belsen case
the Judge Advocate summed up and approved the Prosecution’s legal submissions
in the following terms:
The case for the Prosecution is that all the accused employed on the staff
at Auschwitz knew that a system and a course of conduct was in force, and
that, in one way or another, in furtherance of a common agreement to run
the camp in a brutal way, all those people were taking part in that course
of conduct.128
- The Appeals Chamber considers 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. Since the Trial Chamber’s findings showed 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, the Trial Chamber
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 guards and soldiers - the principal perpetrators of the
crimes committed under the system - to commit those crimes. The Appeals Chamber
finds that the extent of this error depends on whether Krnojelac’s liability
would have been incurred as a co-perpetrator and not as a mere aider and abettor
had the Tadic Appeals Judgement criterion, that is the determination
of his intent based on his knowledge of the system and the fact that he agreed
to it, been used instead of the Trial Chamber’s criterion that there be an
agreement as set out above. If that is the case, there are grounds for considering
that the error invalidates the Judgment. Moreover, the Appeals Chamber notes
that the second error alleged by the Prosecution relates directly to the Trial
Chamber’s applying the intent criterion to the facts. Resolving this second
issue will also make it possible to reach a finding on the issue of the extent
of the Trial Chamber’s error. The second alleged error is examined under point
(2) of sub-section B below.
2. Application of the law to the facts in this case
- The Appeals Chamber will first examine the ground pleaded by the Prosecution
with regard to the specific crime of persecution based on imprisonment of
the non -Serb detainees at the KP Dom and then the ground based on the erroneous
application of the intent criterion in the second category of joint criminal
enterprise.
(a) Allegation that the Trial Chamber made an erroneous
finding with respect to the crime of imprisonment
- The Prosecution submits that the Trial Chamber erred in law and/or fact
when, in considering whether Krnojelac knew that the non-Serb detainees were
being imprisoned unlawfully and that his acts or omissions were contributing
to the maintenance of the unlawful system by the principal offenders, it held
that he could merely have been carrying out orders without sharing the criminal
intent of those who had given the orders. The Prosecution argues that the
Trial Chamber thus erroneously equated criminal intent with motive and considers
that an error of law was committed. The Prosecution argues that there is intent
once the accused is aware of the criminal intent of the other co-perpetrators
and, guided by such knowledge, voluntarily contributes to that common purpose.
The motives of the accused are irrelevant.129
In support of its argument, the Prosecution cites the Trial Chamber’s Judgement
in the Krstic case. The Prosecution submits that, in any event, even
if the Trial Chamber’s finding were to be deemed to be fact, it would be groundless.130
Krnojelac maintains that the Trial Chamber did not err and adds that, while
intent remains an important element in law, the motive may clarify the intent.131
- The Appeals Chamber agrees with the Prosecution that shared criminal intent
does not require the co-perpetrator’s personal satisfaction or enthusiasm
or his personal initiative in contributing to the joint enterprise.132
- The Appeals Chamber refers to the relevant passage of the Judgment which
reads as follows:
The Trial Chamber is also not satisfied that the Prosecution
has established that the Accused shared the intent of the joint criminal
enterprise to illegally imprison the non-Serb detainees. The Trial Chamber
has already determined that the Accused knew the imprisonment of the non-Serb
detainees was unlawful and it is also satisfied that he knew that his
acts and omissions were contributing to the maintenance of that unlawful
system by the principal offenders. However, the Trial Chamber is not satisfied
that the only reasonable inference which can be drawn from these facts
is that the Accused shared the intent of that joint criminal enterprise.
In particular, the Trial Chamber does not consider that the Prosecution
has excluded the reasonable possibility that the Accused was merely carrying
out the orders given to him by those who appointed him to the position
of warden of the KP Dom without sharing their criminal intent. In these
circumstances, the Trial Chamber is of the view that the criminal conduct
of the Accused is most appropriately characterised as that of an aider
and abettor to the principal offenders of the joint criminal enterprise
to illegally imprison the non-Serb detainees pursuant to Article 7(1)
of the Statute.133
- The Appeals Chamber notes that customary international law does not require
a purely personal motive in order to establish the existence of a crime against
humanity.134 The Appeals Chamber further
recalls 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.”135 It is
the Appeals Chamber’s belief that this distinction between intent and motive
must also be applied to the other crimes laid down in the Statute.
- The Appeals Chamber does not construe the Trial Chamber’s assertion in
the Judgment that “the Prosecution has SnotC excluded the reasonable possibility
that the Accused was merely carrying out the orders given to him by those
who appointed him to the position of warden of the KP Dom without sharing
their criminal intent ” to mean that the Trial Chamber confused intent and
motive or that it concluded that the existence of a motive, for example the
execution of an order, would be incompatible with the intent to participate
in the joint criminal enterprise. The Appeals Chamber considers that the Trial
Chamber held that the Prosecution had not established the intent beyond all
reasonable doubt.
- Consequently, the Appeals Chamber holds that the error of law pleaded by
the Prosecution has not been established. It will now consider whether it
was unreasonable for the Trial Chamber to find that intent was not established
here by examining the Prosecution’s ground of appeal concerning the manner
in which the requisite intent for the second form of joint criminal enterprise
was applied to the facts.
(b) Erroneous application of the intent criterion
to the second category of joint criminal enterprise
- The Prosecution submits that, in view of the Trial Chamber’s own findings,136
if the law had been applied correctly to the facts of the case, Krnojelac
should have been found guilty not as an aider and abettor but as a co-perpetrator
of the crimes of persecution (imprisonment and inhumane acts) and cruel treatment
(based on living conditions imposed) under counts 1 and 15.137
The Prosecution accordingly requests the Appeals Chamber to revise the Judgment
on this point and submits that, according to the Trial Chamber’s own findings,
the following were established beyond all reasonable doubt:
- the existence of a system of unlawful detention;
- multiple instances of beatings, inhumane acts and cruel treatment committed
within that system, all committed with discriminatory intent;
- Krnojelac’s position of authority;
- Krnojelac’s knowledge of the system of unlawful detention, of the beatings,
inhumane acts and cruel treatment, and of the discriminatory intent behind
the commission of these crimes (ill-treatment);
- Krnojelac’s intent to facilitate the commission of the crimes as an
aider and abettor (implicit in the Trial Chamber’s finding that he aided
and abetted the relevant crimes).138
The Prosecution takes the view that all the constituent elements of the
second category of joint criminal liability identified in the Tadic Appeals
Judgement are therefore satisfied in the Trial Chamber’s findings and it
was not reasonable to regard him as a mere aider and abettor.139
- Krnojelac argues that the Trial Chamber did not find that he had sufficient
authority to have been one of the participants in the joint criminal enterprise.140
He further contends that, were the Prosecution’s submissions to be upheld,
there would no longer be any difference between an aider and abettor and a
participant in a joint criminal enterprise.141
- The Appeals Chamber will first consider the Trial Chamber’s findings on
the commission of the relevant crimes by the principal perpetrators, that
is: (1) that the establishment and perpetuation of inhumane conditions, constituting
inhumane acts and cruel treatment of the non-Serb detainees at the KP Dom,
had been carried out with the intent to discriminate against them because
of their religious or political affiliations and that, as such, the crime
of persecution was established;142 (2)
that the acts of torture, inhumane acts or cruel treatment under paragraphs
5.15 and 5.23 of the Indictment were carried out on discriminatory grounds
(FWS- 03 only);143 and (3) that the
deprivation of liberty of the non-Serb detainees at the KP Dom constituted
imprisonment within the meaning of Article 5(e) of the Statute.
- As regards Krnojelac’s intent, the Trial Chamber found that he did not
share the intent to commit the crimes set out below as part of a joint criminal
enterprise :
- Living conditions constituting inhumane acts: on the grounds
that the Prosecution did not establish that Krnojelac had entered into an
agreement with the prison guards and the military authorities to subject
the non-Serb detainees to inhumane conditions constituting inhumane acts
and cruel treatment or that he had the intent to subject the detainees to
inhumane living conditions of this kind while he was warden of the KP Dom.144
The Trial Chamber did however hold that Krnojelac was aware of the intent
of the principal offenders - the guards and military authorities - responsible
for the living conditions imposed upon the non-Serb detainees at the KP
Dom and that he was aware that his failure to take any action as warden
in relation to this knowledge encouraged the principal offenders to maintain
those conditions and contributed in a substantial way to their maintenance.
The Trial Chamber thus found that Krnojelac incurred criminal responsibility
as an aider and abettor to inhumane acts and cruel treatment for having
assisted and encouraged the maintenance of living conditions at the KP Dom
whilst prison warden.
- Beatings and acts of torture: on the grounds that there is no
satisfactory evidence that Krnojelac participated in a joint criminal enterprise
which consisted of meting out beatings and torture to the non-Serb detainees.145
The Trial Chamber nevertheless held that Krnojelac knew that beatings and
acts of torture were being carried out and that, by failing to take any
appropriate measures which, as warden, he was obliged to adopt, he encouraged
his subordinates to commit such acts. The Trial Chamber thus found that
Krnojelac was responsible as an aider and abettor to the beatings although
it considered that, in view of the nature of his participation, the more
appropriate basis of liability was his responsibility as a superior.146
- Imprisonment: On this point the Appeals Chamber refers to the
extract from paragraph 127 of the Judgment and the Trial Chamber’s findings
that, by virtue of his position as prison warden, Krnojelac knew that the
non-Serb detainees were being unlawfully detained, had admitted to knowing
that they were being detained precisely because they were non-Serbs and
knew that none of the procedures in place for legally detained persons was
ever followed at the KP Dom.147
- In view of the Trial Chamber’s findings of fact and the criterion to be
applied to determine whether a participant in a system whose common purpose
was the persecution (based on imprisonment and inhumane acts) and cruel treatment
(based on living conditions imposed) of the non-Serb civilian detainees at
the KP Dom had the required intent, the Appeals Chamber will now examine whether
no trier of fact could reasonably have concluded that Krnojelac shared the
intent of the co-perpetrators of those crimes.
- The Trial Chamber noted that, by his own admission, Krnojelac was warden
of the KP Dom from 18 April 1992 until the end of July 1993, that is for 15
months.148 It found that Krnojelac had
voluntarily undertaken the position of acting warden and then warden until
his departure from the KP Dom149 and
that he retained all powers associated with the pre-conflict position of warden
during that period.150 It was noted
above that the Trial Chamber established that, by virtue of his position as
prison warden, Krnojelac knew that the non-Serb detainees were being unlawfully
detained, had admitted to knowing that they were being detained precisely
because they were non-Serbs and knew that none of the procedures in place
for legally detained persons was ever followed at the KP Dom. It was also
established that he was aware of the intent of the principal offenders - the
guards and military authorities - responsible for the living conditions imposed
on the non-Serb detainees at the KP Dom, knew that beatings and acts of torture
were being carried out and that, by failing to take any appropriate measures
which, as warden, he was obliged to adopt, he encouraged his subordinates
to maintain those conditions and furthered the commission of those acts.
- The Appeals Chamber holds that, with regard to Krnojelac’s duties, the
time over which he exercised those duties, his knowledge of the system in
place, the crimes committed as part of that system and their discriminatory
nature, a trier of fact should reasonably have inferred from the above findings
that he was part of the system and thereby intended to further it. The same
conclusion must be reached when determining whether the findings should have
led a trier of fact reasonably to conclude that Krnojelac shared the discriminatory
intent of the perpetrators of the crimes of imprisonment and inhumane acts.151
As the Trial Chamber rightly recalled, such intent must be established for
Krnojelac to incur criminal liability on the count of persecution on this
basis.152
- Hence, the Appeals Chamber upholds the Prosecution’s ground of appeal and
overturns the Trial Chamber’s finding that Krnojelac was guilty as an aider
and abettor and not a co-perpetrator of persecution (imprisonment and inhumane
acts) and cruel treatment (imposed living conditions) under counts 1 and 15.
- The Appeals Chamber will now examine the scope of the error of law arising
out of the Trial Chamber’s requirement of proof of an agreement between Krnojelac
and the principal offenders to commit the crimes. The Appeals Chamber set
this matter aside until it had determined whether applying the Tadic criterion
instead of requiring such an agreement should have resulted in Krnojelac being
found liable as a co-perpetrator and not an aider and abettor to the facts
for which he was held liable under Article 7(1) of the Statute. This is indeed
the case, as has just been demonstrated. For this reason, the Appeals Chamber
holds that the error of law committed by the Trial Chamber was such as to
invalidate the Judgment. Consequently, the Appeals Chamber finds Krnojelac
guilty as a co-perpetrator on counts 1 and 15 for the crime of persecution
(imprisonment and inhumane acts) and cruel treatment (based on living conditions
imposed).
- Before considering the Prosecution’s second ground of appeal, the Appeals
Chamber will examine another issue raised indirectly by the Prosecution’s
appeal. The Appeals Chamber found earlier that the approach adopted by the
Prosecution in its Indictment for defining common purpose corresponded more
closely to the first category of joint criminal enterprise than to the second.
The Appeals Chamber considers that the issue of which approach appears most
appropriate for determining whether liability may be incurred as a co-perpetrator
or an aider and abettor by a participant in a “systemic ” form of joint criminal
enterprise for crimes committed by the principal perpetrator in a context
such as the KP Dom is of general importance for the Tribunal’s case -law.
The Appeals Chamber will therefore examine the issue, limiting itself to acts
charged as persecution.
3. Issue of general importance
- The Appeals Chamber notes 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. 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.
- The Appeals Chamber holds that using 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 principle applies
irrespective of the category of joint enterprise alleged. 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.
- In other words, the accused must know whether the system he is charged
with having contributed to involves all the acts being prosecuted or only
some of them. In the latter case, the Prosecution must specify the basis on
which it considers that the responsibility of the accused may be incurred
for acts not included in the common purpose of the participants in the system
(physical commission, participation in another joint criminal enterprise whose
principal offenders and common purpose must be identified). It would contravene
the rights of the defence if the Trial Chamber, seised of a valid shifting
indictment where the Prosecution has not stated the theory or theories it
considered most likely to establish the accused’s responsibility within accepted
time-limits, chose a theory not expressly pleaded by the Prosecution.
- The Appeals Chamber holds that the search for the common denominator in
its evidence should have led the Prosecution to define the common purpose
of the participants in the system in place at the KP Dom from April 1992 to
August 1993 as limited only to the acts which sought to further the unlawful
imprisonment at the KP Dom of the mainly Muslim, non-Serb civilians on discriminatory
grounds related to their origin and to subject them to inhumane living conditions
and ill-treatment in breach of their fundamental rights.153
The system worked because the camp staff and the military personnel who were
involved in committing the crimes or who assisted the perpetrators were aware
that the KP Dom facility had stopped operating as an ordinary prison when
the Serb authorities arbitrarily incarcerated non-Serb civilians there following
the fall of the town of Foca. From that point on, in the minds of the participants,
the KP Dom had become a system for subjecting the mainly Muslim, non-Serb
civilian detainees to inhumane living conditions and ill-treatment in breach
of their fundamental rights on discriminatory grounds related to their origin.
- Additionally, it is undeniable that the decision arbitrarily to arrest
the region’s male, non-Serb civilians, imprison them at the KP Dom and then
deport them from the region, or even physically eliminate some of them, must
be linked to the criminal purpose of ethnically cleansing the Foca region
pursued by some of its military and civilian authorities.154
This does not necessarily mean that all the co-perpetrators responsible for
the living conditions and ill-treatment inflicted upon the non-Serb detainees
at the KP Dom intended to take part in the ethnic cleansing of the region
or were even aware of it at the time that they were physically committing
the crimes and/or furthering the system in place.155
- Accordingly, the Appeals Chamber finds that the most appropriate approach
in this case would have been to limit the definition of the common purpose
within the KP Dom “system” to the commission of those crimes which, given
the context and evidence adduced, could be considered as common to all the
offenders beyond all reasonable doubt. This amounts to selecting the common
denominator discussed above. As for the crimes which do not plainly fit into
the common purpose of this system, the Prosecution should, at least as an
alternative, have stated on what basis it considered that the responsibility
of the Accused could be established. The Appeals Chamber suggests that the
following approach could be considered.
- For alleged crimes, such as the killings, which albeit committed at the
KP Dom clearly go beyond the system’s common purpose, liability may be imputed
to a person participating in the system for crimes of this kind committed
by another participant if it was foreseeable that a crime of this sort was
likely to be committed by that other participant and the former willingly
took the risk (or was indifferent to it). The Appeals Chamber notes that this
was the Prosecution’s submission in the Pre-Trial Brief with respect to the
killings.156
- For alleged crimes which, whilst implicating several co-perpetrators at
the KP Dom, do not appear beyond all reasonable doubt to constitute a purpose
common to all the participants in the system, they should be considered as
coming under a first category joint criminal enterprise without reference
to the concept of system. The Appeals Chamber holds that the alleged crime
of forced labour must be dealt with in this way. A person who participated
in its commission may be regarded as a co-perpetrator of a joint criminal
enterprise whose purpose was to commit the crime, provided that the individual
concerned shared the common intent of the principal offenders. Alternatively,
the individual concerned may be considered an aider and abettor if he merely
had knowledge of the perpetrators’ intent and lent them support which had
a significant effect on the perpetration of the crime.
- For alleged crimes which fit into a broader plan, such as imprisonment
and deportation, they should be distinguished on the basis of whether they
form part of the common purpose of all the participants in the system and
other co-perpetrators outside of it or whether they form part of a common
purpose shared by only some of the participants in the system and the persons
outside that system. In the first case, into which the crime of imprisonment
falls, the concept of system may be applied to all the participants. However,
the distinctive nature of the crimes stems from the fact that some of the
principal offenders are persons outside the system in place at the camp, that
is, in the case of imprisonment, certain civilian and/or military authorities
who ordered the arbitrary arrests and detention at the KP Dom. In the second
case, into which the deportation or transfer of some of the non- Serb detainees
falls, the crimes in question should be considered without applying the concept
of system and a person who participated in their commission may be regarded
as a co-perpetrator of a joint criminal enterprise whose purpose was to commit
the crimes, provided that the individual concerned shared the common intent
of the principal offenders. Alternatively, the individual concerned may be
considered an aider and abettor if he merely had knowledge of the perpetrators’
intent and lent them support which had a significant effect on the perpetration
of the crimes.
- The Appeals Chamber will now consider the Prosecution’s second ground of
appeal relating to the form of the Indictment.
B. The Prosecution’s second ground of appeal:
the form of the Indictment
- The Prosecution maintains that the Trial Chamber committed an error of
law when it found that the Accused could not be held liable under the third
form of joint criminal enterprise set out in the Tadic Appeals Judgement
with respect to any of the crimes alleged unless an “extended” form of joint
criminal enterprise was pleaded expressly in the Indictment.157
The Prosecution does not ask for the Trial Judgment to be reversed or revised
on the point. It raises this ground of appeal on account of its general significance
for the case-law of the Tribunal.158
- The Prosecution claims that the requirement under Article 18(4) of the
Statute and Rule 47(C) of the Rules that an indictment set out in detail the
crimes with which the accused is charged does not require the specific “mode
of Sthe accused’sC liability” to be set out.159
It contends that, in any event, failure to do so could not render the indictment
null and void. In support of that submission, the Prosecution argues that,
in the Tadic Appeals Judgement, the Appeals Chamber found the accused
liable under the third form of joint criminal enterprise for the killing of
five men from the village of Jaskici, even though neither this form of liability
nor any other was pleaded in the indictment. The Prosecution adds that, in
this case, it stated in both its Pre -Trial Brief and its opening statement
of October 2000 that it intended to rely on the third form of joint criminal
enterprise. It further argues that Krnojelac did not claim at trial that the
failure of the Indictment to make reference to an extended form of joint criminal
enterprise had impaired his defence and that, in its Final Trial Brief, the
Defence actually explicitly addressed all the forms of joint criminal enterprise.
- Krnojelac submits that, on the contrary, the Trial Chamber was right to
adopt this approach since the wording of the charges is relevant to the nature
of and reasons for the charges against him, of which he must be informed without
delay.160 Krnojelac adds that the indictment
was twice returned to the Prosecution for more information161
and, in response to the Prosecution’s argument that he did not object to this
form of liability when it was mentioned in the Prosecution’s opening statement,
he points out that it was not his role to correct his opponent’s mistakes.162
In its reply, the Prosecution points to the principle of waiver and submits
that the fact that Krnojelac dealt with the third form in his Final Trial
Brief indicates that he considered the charges to be sufficiently precise.
This is an important factor which the Trial Chamber should have borne in mind
in determining whether it would have been unfair to the Accused to allow the
Prosecution to rely on this form of responsibility.163
- The Appeals Chamber holds that, insofar as it affects how precisely the
indictment must set out the forms of joint criminal enterprise being pleaded
by the Prosecution, the issue raised by the Prosecution is definitely of general
importance for the development of the Tribunal’s case-law and deserves analysis,
even though the Prosecution does not request the Judgment to be reviewed on
the point.
- The Appeals Chamber notes that, pursuant to Article 18(4) of the Statute,
the indictment must set out “a concise statement of the facts and the crime
or crimes with which the accused is charged”. Likewise, Rule 47(C) of the
Rules provides that the indictment shall set out not only the name and particulars
of the suspect but also “a concise statement of the facts of the case”.
- The Prosecution’s obligation to set out a concise statement of the facts
of the case in the indictment must be interpreted in the light of the provisions
of Articles 21(2), 21(4)(a) and 21(4)(b) of the Statute, which provide that,
in the determination of charges against him, the accused shall be entitled
to a fair hearing and, more specifically, to be informed of the nature and
cause of the charges against him and to have adequate time and facilities
for the preparation of his defence.
- In the case-law of the Tribunal, this translates into an obligation on
the part of the Prosecution to state the material facts underpinning the charges
in the indictment, but not the evidence by which such facts are to be proven.164
Hence, the question of whether an indictment is pleaded with sufficient particularity
is dependent upon whether it sets 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.
- In the Kupreskic case, the Appeals Chamber stressed that the materiality
of a particular fact cannot be determined in the abstract. It depends on the
objective of the Prosecution case. A decisive factor in determining the degree
of specificity with which the Prosecution is required to particularise the
facts of its case in the indictment is the nature of the alleged criminal
conduct of the accused. For example, in a case where the Prosecution alleges
that an accused personally committed the criminal acts, the material facts,
such as the identity of the victim, the time and place of the events and the
means by which the acts were committed, have to be pleaded in detail. Clearly,
there may be instances where the sheer scale of the alleged crimes makes it
impracticable to require a high degree of specificity in such matters as the
identity of the victims and the dates for the commission of the crimes:165
92. It is of course possible that an indictment may
not plead the material facts with the requisite degree of specificity
because the necessary information is not in the Prosecution’s possession.
However, in such a situation, doubt must arise as to whether it is fair
to the accused for the trial to proceed. In this connection, the Appeals
Chamber emphasises that the Prosecution is expected to know its case before
it goes to trial. It is not acceptable for the Prosecution to omit the
material aspects of its main allegations in the indictment with the aim
of moulding the case against the accused in the course of the trial depending
on how the evidence unfolds. There are, of course, instances in criminal
trials where the evidence turns out differently than expected. Such a
situation may require the indictment to be amended, an adjournment to
be granted, or certain evidence to be excluded as not being within the
scope of the indictment.
114. The Appeals Chamber notes that, generally, an indictment,
as the primary accusatory instrument, must plead with sufficient detail
the essential aspect of the Prosecution case. If it fails to do so, it
suffers from a material defect. A defective indictment, in and of itself,
may, in certain circumstances cause the Appeals Chamber to reverse a conviction.
The Appeals Chamber, however, does not exclude the possibility that, in
some instances, a defective indictment can be cured if the Prosecution
provides the accused with timely, clear and consistent information detailing
the factual basis underpinning the charges against him or her. Nevertheless,
in light of the factual and legal complexities normally associated with
the crimes within the jurisdiction of this Tribunal, there can only be
a limited number of cases that fall within that category. For the reasons
that follow, the Appeals Chamber finds that this case is not one of them.
- Furthermore, in the Rutaganda case, the ICTR Appeals Chamber considered
that before a Chamber holds that an alleged fact is not material or that differences
between the wording of the indictment and the evidence adduced are minor,
it should generally ensure that such a finding is not prejudicial to the accused.166
The ICTR Appeals Chamber stated that an example of such prejudice would be
vagueness capable of misleading the accused as to the nature of the criminal
conduct with which he is charged. Depending on the particular circumstances
of each case, the issue will be to determine whether an accused could reasonably
identify the crime and conduct specified in each paragraph of the indictment.167
- The Appeals Chamber further notes the statement in the Aleksovski case
that “the practice by the Prosecution of merely quoting the provisions of
Article 7(1) in the indictment is likely to cause ambiguity, and it is preferable
that the Prosecution indicate in relation to each individual count precisely
and expressly the particular nature of the responsibility alleged.”168
- The Appeals Chamber will consider this issue of general importance raised
by the Prosecution in the light of the applicable law. The relevant parts
of the Judgment, namely paragraphs 84 to 86, show that, while the Prosecution
made no express reference to any particular form of joint criminal enterprise
in the Third Amended Indictment, the Trial Chamber made a clear distinction
between the basic and extended forms of joint criminal enterprise.
- As regards the basic form of joint criminal enterprise, the Trial Chamber
referred to paragraph 84 of the Judgment in its Decision on the Form of the
Second Amended Indictment169 in which
it held that the Prosecution’s use of the expression “acted pursuant to a
joint criminal enterprise with guards and soldiers” in paragraph 5.1 of the
indictment (persecution) corresponded to the basic form of joint criminal
enterprise. In the same paragraph, the Trial Chamber found this to be true
also of the expression “in concert with others” which appears in paragraphs
5.17, 5.21, 5.22, 5.26 and 5.41 of the Indictment (acts of torture, beatings,
enslavement). In paragraph 85, the Trial Chamber held that:
Even where a particular crime charged has not been specifically
pleaded in the indictment as part of the basic joint criminal enterprise,
a case based upon the Accused’s participation in a basic joint criminal
enterprise to commit that crime may still be considered by the Trial Chamber
if it is one of the crimes charged in the indictment and such a case is
included within the Prosecution’s Pre-Trial Brief. In the present case,
the Prosecution Pre-Trial Brief sufficiently put the Accused on notice
that a basic joint criminal enterprise was alleged with respect to all
the crimes charged in the Indictment.
- Conversely, when it examined the extended form of joint criminal enterprise,
the Trial Chamber took into consideration the fact that the Prosecution sought
to rely on this form without having amended the Indictment after the Trial
Chamber had expressly interpreted the second amended indictment as alleging
a basic form of joint criminal enterprise.170
Accordingly, the Trial Chamber concluded in paragraph 86 that:
[…] The Trial Chamber in the exercise of its discretion
considers that, in the light of its own express interpretation that only
a basic joint criminal enterprise had been pleaded, it would not be fair
to the Accused to allow the Prosecution to rely upon this extended form
of joint criminal enterprise liability with respect to any of the crimes
alleged in the Indictment in the absence of such an amendment to the Indictment
to plead it expressly.
- For the applicable law on the form of the indictment, the Appeals Chamber
refers to the section of this Judgement on the issues of law raised by the
parties.171 The Appeals Chamber reiterates
that Article 18(4) of the Statute requires that the crime or crimes charged
in the indictment and the alleged facts be set out concisely in the indictment.172
With respect to the nature of the liability incurred, the Appeals Chamber
holds that 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. However, this does not, in principle, 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. This option is, however, limited by the need to guarantee the
accused a fair trial.
- The Appeals Chamber points out that the Prosecution’s obligation to draw
up a sufficiently precise indictment must be interpreted in the light of the
provisions of Articles 21(2), 21(4)(a) and 21(4)(b) of the Statute, which
state that, in the determination of charges against him, the accused shall
be entitled to a fair hearing and, more specifically, to be informed of the
nature and cause of the charge against him and to have adequate time and facilities
for the preparation of his defence. The Trial Chamber’s approach should be
seen from this perspective.
- The Appeals Chamber notes that, in its Decision on the Form of the Second
Amended Indictment, the Trial Chamber, ruling on a complaint regarding the
lack of precision of paragraph 5.2 of the indictment,173
pointed out that the Prosecution was pleading the common purpose theory in
the indictment for the first time. It also responded to the issue of what
the theory included174 and, in so doing,
referred to the three categories of case specified in the Tadic Appeals
Judgement. It found in paragraph 11 of the decision that:
As the indictment is silent on the subject, it is unnecessary
for present purposes to consider the last of those categories, where the
offence charged falls outside the scope of the common purpose of those
engaged in the joint criminal enterprise but which is nevertheless within
the contemplation of the accused as a possible incident of that enterprise.
- Given this decision, had the Prosecution considered that the Trial Chamber
had misconstrued its intentions on the matter, it should have dispelled any
ambiguity either by requesting the Trial Chamber to revisit its decision or
by seeking leave to amend the Indictment. If the Prosecution had not considered
pleading an extended form of joint criminal enterprise until after the decision
in question, it would be for the Prosecution to seek leave to amend the Indictment
after that decision.
- The Appeals Chamber observes that paragraph 86 of the Judgment, cited in
paragraph 137 above, shows that the Trial Chamber reached the conclusion it
did precisely because the Prosecution failed to amend the Indictment after
the Chamber had unambiguously interpreted the second amended indictment as
not pleading an extended form of joint criminal enterprise. Given these circumstances,
the Trial Chamber decided “in the exercise of its discretion” that it would
not be fair to the Accused to allow the Prosecution to rely upon this extended
form of joint criminal enterprise to establish his liability.
- The Appeals Chamber further notes that, while the Prosecution’s Pre-Trial
Brief of 16 October 2000, that is subsequent to the decision of 11 May 2000,
pleads an extended form of joint criminal enterprise for the first time, the
Indictment is silent on the matter.
- It must be noted that these circumstances left the Defence in some uncertainty
as to the Prosecution’s argument. Therefore, even though it is apparent from
Krnojelac’s Final Trial Brief that he did take the three forms of joint criminal
enterprise described in the Tadic Appeals Judgement into consideration
before concluding that he had not taken part in a joint criminal enterprise,175
the Appeals Chamber holds that, in view of the persistent ambiguity surrounding
the issue of what exactly the Prosecution argument was, the Trial Chamber
had good grounds for refusing, in all fairness, to consider an extended form
of liability with respect to Krnojelac.
- For the above reasons, the Prosecution second ground of appeal on the form
of the Indictment is dismissed.
C. The Prosecution’s third and fourth grounds
of appeal: errors relating to the mens rea of superior responsibility
under Article 7(3) of the Statute
- The third and fourth grounds of appeal both invoke errors relating to the
mens rea of superior responsibility under Article 7(3) of the Statute.
The Prosecution submits that the Trial Chamber 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). Given the similarity of the
issues raised, the Appeals Chamber will address both grounds of appeal in
the same section.
- In the form of relief, the Prosecution requests that the Appeals Chamber
reverse the Trial Chamber's findings under counts 5 (inhumane acts as a crime
against humanity ) and 7 (cruel treatment as a violation of the laws or customs
of war) and find Krnojelac guilty under counts 2 (torture as a crime against
humanity) and 4 (torture as a violation of the laws or customs of war) pursuant
to Article 7(3) of the Statute. It also requests that the Appeals Chamber
reverse the acquittals under count 8 of the Indictment (murder as a crime
against humanity) and count 10 (murder as a violation of the laws or customs
of war) and find Krnojelac guilty under these counts pursuant to Article 7(3)
of the Statute. The Prosecution requests that the Trial Chamber's sentence
be increased commensurately to reflect Krnojelac's liability for the above
two crimes.176
- In support of both grounds of appeal,177
the Prosecution recalls the legal test set out by the Trial Chamber in paragraph
94 of the Judgment for determining a superior’s mens rea. The Trial
Chamber stated that:
It must be demonstrated that the superior knew or had
reason to know that his subordinate was about to commit or had committed
a crime. It must be proved that (i) the superior had actual knowledge,
established through either direct or circumstantial evidence, that his
subordinates were committing or about to commit crimes within the jurisdiction
of the Tribunal, or (ii) he had in his possession information which would
at least put him on notice of the risk of such offences, such information
alerting him to the need for additional investigation to determine whether
such crimes were or were about to be committed by his subordinates. This
knowledge requirement has been applied uniformly in cases before this
Tribunal to both civilian and military commanders. The Trial Chamber is
accordingly of the view that the same state of knowledge is required for
both civilian and military commanders.178
- The Appeals Chamber notes that the Prosecution's submissions do not challenge
the legal definition of the “had reason to know” standard provided by the
Trial Chamber but instead argue that the Trial Chamber erred in applying the
test to the facts of the case.
- In general terms (the submissions specific to each ground of appeal are
analysed below), the Prosecution states that the only finding a reasonable
trier of fact could have reached was that alarming information was available
to Krnojelac which put him on notice of possible unlawful acts by his subordinates
at the KP Dom and required him to carry out an additional investigation. The
Prosecution maintains that, in spite of this information, Krnojelac failed
in his duty to prevent the acts of torture and murders and punish their perpetrators.
In support of both grounds of appeal, the Prosecution reiterates the Trial
Chamber's findings that Krnojelac held the position of warden in the KP Dom
and exercised supervisory responsibility over all subordinate personnel and
detainees at the KP Dom. As for the actions of the KP Dom guards, the Prosecution
points out that the Trial Chamber held Krnojelac responsible as their superior
under Article 7(3) of the Statute and that, as warden of the KP Dom, Krnojelac
was the de jure superior of the guards and knew that they were involved
in the beating of the non-Serb detainees.179
- According to the Prosecution, the Trial Chamber's approach to torture and
murders runs counter to the Tribunal’s case-law, in particular, to the Celebici
Appeals Judgement. The Prosecution asserts that it is clear from the case-law
that the information received by the superior need not point to any specific
crime;180 the superior need only
receive information of a general nature, putting him on notice of the
risk of crimes being committed.
- Aside from routinely putting forward the argument that Krnojelac had no
jurisdiction, the Defence maintains that: “the Prosecution refers to allegations
and indicia endeavouring to use some facts, some information that the Accused
might possibly have raised to the level of alarming information and which
would then lay down the standard for mens rea, that is are allowed
to bring charges against the Accused under 7(3) of the Statute.”181
The Defence submits that if the Prosecution's interpretation were to be accepted
by the Appeals Chamber:
[…] for a person to be held responsible as a superior
it is enough that he has information that there is an armed conflict between
the Serbs and the Muslims in progress at a relevant sector, that some
Muslims are being held imprisoned and that they are guarded by the Serb
prison guards. Such a general piece of information would then be sufficient
to alert superiors in charge that there is a risk of possible crimes involved.
This would possibly reduce the role of superiors to investigations as
to whether there are any crimes taking place or not, on daily basis. So,
the information on an armed conflict between two ethnic groups, of which
one holds the members of the other group in prison and organises guards
to keep them imprisoned is the kind of general information which may notify
superiors that there is a risk of crime involved. Such a claim is, of
course, unacceptable from the point of view of international criminal
law and it most certainly is not in accord with adopted standards and
principles.182
- Here, the Prosecution's argument seems 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 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.183
On this point, the Appeals Chamber considers it appropriate to provide the
following clarification.
- The Celebici Appeals Judgement defines the “had reason to know”
standard by setting out that “[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. For instance, a military
commander who has received information that some of the soldiers under his
command have a violent or unstable character, or have been drinking prior
to being sent on a mission, may be considered as having the required knowledge.”184
- The Appeals Chamber finds that this case-law shows only that, 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).185
Such an inference is not admissible with regard to the principles governing
individual criminal responsibility. In other words, and again using the above
example of the crime of torture, in order to determine whether an accused
“had reason to know” that his subordinates had committed or were about to
commit acts of torture, the court must ascertain whether he had sufficiently
alarming information (bearing in mind that, as set out above, such information
need not be specific) to alert him to the risk of acts of torture being committed,
that is of beatings being inflicted not arbitrarily but for one of the prohibited
purposes of torture. Thus, 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.
- The Appeals Chamber reiterates that an assessment of the mental element
required by Article 7(3) of the Statute should, in any event, be conducted
in the specific circumstances of each case, taking into account the specific
situation of the superior concerned at the time in question.186
- Having provided this clarification, the Appeals Chamber will now analyse
the Prosecution's submissions in support of each ground of appeal.
1. Third ground of appeal: error in the Trial Chamber's
findings of fact regarding the acts of torture committed at the KP Dom
- Apart from the finding that Krnojelac held a position of superior authority
in the KP Dom,187 the Prosecution restates
some of the Trial Chamber's other findings of fact in support of this ground
of appeal,188 in particular:
- that Krnojelac's subordinates tortured some of the detainees;189
- that Krnojelac knew or had reason to know that Muslim detainees were
being beaten or otherwise generally mistreated;190
- that Krnojelac knew that a detainee by the name of Ekrem Zekovic had
been tortured.191
- In essence, the Prosecution challenges the Trial Chamber’s findings in
paragraph 313 of the Judgment which reads as follows:
The Trial Chamber is not satisfied, however, that the
Accused knew 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. The fact that the Accused witnessed the beating
of Zekovic, ostensibly for the prohibited purpose of punishing him for
his failed escape is not sufficient, in itself, to conclude that the Accused
knew or that he had reason to know that, other than in that particular
instance, beatings were inflicted for any of the prohibited purposes.
Having personally observed Burilo torturing Zekovic, the Accused was obliged
to punish Burilo, but that isolated fact did not oblige him to investigate
the incident in such a way as would have put him on notice that others
were being tortured in the KP Dom. The Accused is therefore not responsible
as a superior for the torture charged in the Indictment.
- The Prosecution submits that, when the Trial Chamber examined whether Krnojelac
could be held responsible as a superior for the acts of torture on the basis
of the beatings inflicted, it appeared to have erroneously required proof
- contrary to the Tribunal’s case-law cited above192
- that Krnojelac possessed “specific information” which would have
led him to conclude that a “specific detainee” was being, or had been,
tortured. The Prosecution maintains that, given the facts accepted by the
Trial Chamber, the only reasonable conclusion which a trier of fact should
have reached was the following : the information available to Krnojelac was
sufficient to put him on notice that his subordinates were involved in the
beatings of detainees and, had he acted upon this information, any investigation
would have made it clear to him that the purpose of all of these beatings
was one or more of the prohibited purposes of torture, namely punishment,
interrogation or intimidation.193 At
the appeal hearing, the Prosecution made the following submissions:
[W]hen a person is the warden of such a prison as this
for 15 months, who has an office right in the centre of the complex, who
is told by at least one detainee, the witness RJ, that the detainees could
hear the sounds of beatings, who personally saw one detainee, the detainee
Ekrem Zekovic, being beaten as punishment for an attempted escape, and
who had every opportunity to observe the physical manifestations of the
widespread and brutal beatings which the Trial Chamber itself said must
have been obvious to everyone, and when all of this -- when all of this
is considered against the fact that he knew the discriminatory nature
of the imprisonment and of the discriminatory nature of the inhumane living
conditions for the detainees, and indeed he knew that the interrogations
in the camp were pervasive, that interrogators were coming in and out,
interrogations could be said to have been a daily feature or at least
a very frequent feature of life in the KP Dom, with all these facts, the
only reasonable conclusion must be that he was placed on notice of the
risk of torture.194
- The Appeals Chamber holds that the question which then arises is as follows
: is the Trial Chamber's finding that Krnojelac neither knew nor had reason
to know that his subordinates had inflicted or were about to inflict beatings
for one of the purposes mentioned in the prohibition against torture unreasonable?
If so, did this error occasion a miscarriage of justice?
- The relevant facts accepted by the Trial Chamber first need to be restated.
The Appeals Chamber notes that these facts relate to: (1) the context in which
the beatings were committed and the widespread nature of these beatings; (2)
Krnojelac's jurisdiction over his subordinates as prison warden; and (3) the
frequency of the interrogations and the punishment inflicted upon the detainees.
(a) Findings related to the context in which the
beatings were committed and the widespread nature of these beatings
- The Trial Chamber accepted, amongst others, the following facts: the detention
of non-Serbs in the KP Dom, and the acts or omissions which took place therein,
were clearly related to the widespread and systematic attack against the civilian
population.195 The brutal and deplorable
living conditions imposed upon the non-Serb detainees at the KP Dom in the
period from April 1992 to July 1993 constituted acts and omissions of a seriousness
comparable to the other crimes enumerated under Article 5 and Article 3 of
the Tribunal's Statute and constituted inhumane acts and cruel treatment under
those Articles.196 There was a deliberate
policy of isolating detainees within the KP Dom. The detainees who were taken
to work assignments outside of the KP Dom were kept isolated in a separate
room to prevent them from spreading “news” to the outside world. To ensure
compliance with these unwritten “rules” on communication, violations were
punished with solitary confinement and/or mistreatment, such as beatings.197
The non-Serb detainees were deliberately housed in cramped conditions.198
There is no evidence that Krnojelac personally initiated the living conditions
imposed upon the non-Serb detainees, and no evidence that he issued any orders
to the guards of the KP Dom with respect to the imposition of these living
conditions. The Trial Chamber was nevertheless satisfied that Krnojelac 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. A number of detainees gave evidence that they met with
Krnojelac and told him about their suffering (witnesses Safet Avdic, FWS-182,
RJ and Muhamed Lisica). Krnojelac admitted that he habitually met with detainees
and he confirmed that, during these conversations, the detainees discussed
the living conditions at the KP Dom.199
He was aware of the intent of the principal offenders and was aware that his
failure to take any action as warden in relation to this knowledge was contributing
in a substantial way to the continued maintenance of these conditions constituting
inhumane acts and cruel treatment by the principal offenders by giving encouragement
to the principal offenders to maintain these living conditions.200
Krnojelac was aware that his subordinates were creating living conditions
at the KP Dom which constituted inhumane acts and cruel treatment, and he
omitted to take any action to prevent his subordinates from maintaining these
living conditions and failed to punish his subordinates for the implementation
of these living conditions.201 There
is a great deal of evidence that detainees were in fact systematically beaten
and mistreated while detained at the KP Dom.202
From April 1992 until July 1992 beatings took place on a frequent and systematic
basis. KP Dom guards used lists in order to select those detainees to be taken
out to the administrative building and beaten there. Some of the detainees
were taken out and beaten on several occasions. There is no evidence however
that, as alleged, Krnojelac drafted the lists according to which detainees
were selected and called out.203 At
different times in June and July 1992, generally in the evening, small groups
of detainees were called out by a guard of the KP Dom and taken away to the
administration building. Soon thereafter, sounds of beating, cries and moans
were frequently heard by other detainees. KP Dom guards sometimes took part
in the beatings and they could be overheard, insulting or provoking the victims;
at least five guards took part in one or several of those incidents. KP Dom
guards and individuals coming from outside beat the inmates with their fists
and feet or with batons. Shots were sometimes heard and the detainees never
returned to their rooms. Other detainees who entered some of the rooms where
those beatings had taken place saw traces of blood on the walls and on the
floor of the room as well as on a baton.204
Krnojelac knew that Muslim detainees were being beaten and that they were
otherwise being generally mistreated.205
He was personally told about non-Serb detainees being beaten and mistreated.
Witness RJ told Krnojelac that detainees could hear the sounds of beatings
coming from the administrative building. He also told Krnojelac about the
beating of a retarded detainee.206 In
view of the widespread nature of the beatings at the KP Dom and the obvious
resulting physical marks on the detainees, Krnojelac could not have failed
to learn of them, although he denies it. The consequences of the mistreatment
upon the detainees, the resulting difficulties that some of them had in walking,
and the pain which they were in must have been obvious to everyone.207
Krnojelac must have been aware that the detainees, for whose care he was responsible,
and some of whom he knew personally, were being mistreated.208
Not only did he personally see one of his subordinates beat a detainee, but
he also heard about such incidents, and it must have been clear that some
of them were involved, considering that the guards were in direct contact
with and controlled the detainees.209
(b) Findings related to Krnojelac's jurisdiction
over his subordinates as prison warden
- The Trial Chamber accepted, amongst others, the following facts: the position
of prison warden, in the ordinary usage of the word, necessarily connotes
a supervisory role over all prison affairs. The warden held the highest position
of authority in the KP Dom and it was his responsibility to manage the entire
prison.210 Krnojelac voluntarily undertook
the position of acting warden and then warden until his departure from the
KP Dom in July 1993. He held the position of warden for fifteen months (from
18 April 1992 until the end of July 1993).211
He voluntarily accepted the positions in full awareness that non-Serb civilians
were being illegally detained at the KP Dom because of their ethnicity.212
By virtue of his position as warden of the KP Dom, Krnojelac knew that the
non-Serb detainees were being unlawfully detained. Krnojelac admitted that
he knew that the non-Serb detainees were detained because they were non-Serbs
and that he knew that none of the procedures in place for legally detained
persons was ever followed at the KP Dom.213
The warden retained jurisdiction over all detainees in the KP Dom.214
Krnojelac went to the KP Dom almost every day of the working week. While there
he would go to the canteen, the prison yard or elsewhere inside the compound,
all places where he had ample opportunity to notice the physical condition
of the non-Serb detainees.215
(c) Findings related to the interrogations, their
frequency and the punishment inflicted upon the detainees
- The Trial Chamber accepted the following facts: upon entry into the KP
Dom, some of the detainees were searched and registered, while others were
not. Similarly, interrogations of those detained were conducted sometimes
within a few days or weeks of their arrival, sometimes only after months and,
in some cases, never. In the course of these interrogations, some of the detainees
were asked about weapons, about their membership in the SDA and about their
whereabouts before and during the outbreak of the conflict in the area. A
number of detainees were threatened in the course of the interrogations, and
others heard fellow detainees being mistreated in neighbouring rooms. Many
of the detainees were forced to sign written statements. None of the detainees
was released from the KP Dom following interrogation, notwithstanding the
individual outcome of the interview.216
The suffering of the non-Serb detainees during the winter of 1992 was the
result of a deliberate policy on the part of those in charge of the KP Dom.
Attempts made by some of the non-Serb detainees to make winter clothes out
of blankets were punished. The blankets were removed and those involved were
sent to solitary confinement, where temperatures were even lower.217
Non-Serb detainees who arrived at the KP Dom with injuries sustained prior
to or in the course of their arrest were not given access to medical treatment,
nor were non-Serb detainees who were severely beaten during interrogations
at the KP Dom.218 In addition to the
physically taxing conditions of detention, the non-Serb detainees were also
subject to a psychologically exhausting regime while detained at the KP Dom.
Any attempts made by non-Serb detainees to improve their living conditions
in the camp were punished with solitary confinement. Acts which resulted in
beatings or periods in the isolation cells included efforts to get additional
food, or access to warm water, and attempts to communicate with each other,
the guards, or the outside world.219
The non-Serb detainees were subjected to harrowing psychological abuse during
their period of detention at the KP Dom. The detainees were exposed to the
sounds of torture and beatings over a period of months, in particular in June
and July 1992.220 On 8 July 1993, Ekrem
Zekovic, a Muslim detainee, tried to escape from the KP Dom, but was re-captured
the same day. As soon as he was brought back to the KP Dom, Zekovic was severely
beaten by Milenko Burilo, a guard of the KP Dom. While he was being beaten,
Krnojelac intervened to stop it. As he was walking away from the scene, Burilo
continued to assault Zekovic in Krnojelac's presence. Krnojelac saw the detainee
Ekrem Zekovic being beaten. Moreover he met with him and they had a conversation
about his attempted escape. The treatment meted out to Zekovic amounted to
torture pursuant to Article 5(f) and Article 3 of the Statute and the Accused
was aware that Zekovic was being tortured.221
Several detainees, all work companions of Zekovic, were severely beaten by
the KP Dom guards as punishment for Zekovic's escape or in order to obtain
information about his whereabouts. The Trial Chamber did not accept Krnojelac's
denial on this point.222 The various
instances of mistreatment were aimed at either obtaining information from
those detainees who might know something about Zekovic's escape plan or whereabouts
following his escape, or punishing them for his failed attempt, or because
they were suspected of having played a part in his escape.223
Detainees were regularly taken out of their rooms or from the isolation cells
by the guards of the KP Dom, soldiers or policemen for the purpose of interrogations.
On several occasions, many detainees who had been taken out in that manner
were in fact beaten or otherwise mistreated during the interviews for the
purpose of obtaining information or a confession or in order to punish them
for some minor violation of prison regulations.224
- In view of the facts accepted by the Trial Chamber, the Appeals Chamber
holds that sufficiently alarming information was available to Krnojelac to
put him on notice of the risk that torture was being or might be being carried
out. The Appeals Chamber considers that, of all the facts accepted by the
Trial Chamber, some are of particular significance. Taken as a whole, these
facts constitute a sufficiently alarming body of information to put him on
notice of the risk of torture. First, it is an established fact that Krnojelac
admitted that he knew that non-Serbs were being detained because they
were non-Serbs and that none of the procedures in place for legally detained
persons was ever followed at the KP Dom. It is also a certain fact that Krnojelac
had knowledge of the detention conditions under which the non-Serb prisoners
were being held, that he often met with detainees who discussed with him the
living conditions at the KP Dom and that he knew that Muslim detainees were
being beaten and generally mistreated. Moreover, from April until July 1992,
beatings took place on a frequent and systematic basis and the consequences
of the mistreatment upon the detainees, the difficulties that some of them
had in walking, and the pain which they were in must have been obvious to
everyone. Krnojelac must have been aware that the detainees, for whose
care he was responsible, and some of whom he knew personally, were being mistreated.
- Moreover, the Trial Chamber recognised that the position of prison warden,
in the ordinary usage of the word, necessarily connotes a supervisory role
over all prison affairs and that Krnojelac voluntarily undertook the position
of warden for fifteen months, from 18 April 1992 until the end of July 1993.
He retained jurisdiction over all detainees in the KP Dom. Moreover, Krnojelac
voluntarily accepted the position in full awareness that Muslim civilians
were being illegally detained at the KP Dom because of their ethnicity and
he admitted that he knew that the non-Serbs were detained because they were
Muslim. In addition, Krnojelac went to the KP Dom almost every day of the
working week. While there, he would go to the canteen, the prison yard or
elsewhere inside the compound, all places where he had ample opportunity to
notice the physical condition of the non-Serb detainees.
- Furthermore, although the interrogations were not systematic, there can
be no doubt that they were frequent. The Trial Chamber accepted that the guards
at the KP Dom, over whom Krnojelac was acknowledged to have had jurisdiction,
regularly went to take detainees out of their rooms or the isolation cells
for the purpose of interrogations. It recognised that, on several occasions,
many detainees who had been taken out in that manner were in fact beaten or
otherwise mistreated during the interviews for the purpose of obtaining information
or a confession or in order to punish them for some minor violation of prison
regulations. Moreover, the detainees were seemingly aware of the risk of punishment,
which was common practice. The Trial Chamber accepted that to ensure compliance
with the unwritten rules on communication (that is, that the detainees taken
outside the KP Dom were not to spread news from the “outside world”225),
“violations were punished with solitary confinement and/or mistreatment, such
as beatings.”226 Similarly, “any attempts
made by non-Serb detainees to improve their living conditions in the camp
were punished with solitary confinement. Acts which resulted in beatings or
periods in the isolation cells included efforts to get additional food, or
access to warm water, and attempts to communicate with each other, the guards,
or the outside world.”227 Accordingly,
the Trial Chamber stated that “SmCany of the detainees were subjected to beatings
and other forms of mistreatment, sometimes randomly, sometimes as a punishment
for minor breaches of the prison regulations or in order to obtain information
or a confession from them.”228
- The Trial Chamber also found that Krnojelac had witnessed the beating of
Zekovic on 8 July 1993, ostensibly inflicted for the prohibited purpose of
punishing him for his failed escape. This beating was considered an act of
torture by the Trial Chamber. Admittedly, Krnojelac was not charged with criminal
responsibility for the torture of Zekovic. However, the Trial Chamber indicated
that, had he been so charged, he would have been responsible as a superior
pursuant to Article 7(3) of the Statute because he failed to punish KP Dom
guard Burilo for torturing Zekovic.229
It further stated: “notwithstanding that there was no objection to the evidence
of the beating of Ekrem Zekovic, the Trial Chamber does not take that incident
into account in relation to Counts 2, 4, 5 and 7 of the Indictment, although
the evidence remains in the case as material from which inferences may legitimately
be drawn by the Trial Chamber in relation to issues arising out of other incidents
which are the subject of charges in the Indictment.”230
Nonetheless, the Appeals Chamber takes the view that, by refraining from using
this fact in relation to counts 2, 4, 5 and 7 of the Indictment, the Trial
Chamber committed a factual error occasioning a miscarriage of justice. There
was no legal impediment to using Zekovic’s evidence to establish that Krnojelac
had reason to know that his subordinates had committed or might commit crimes
of torture other than those relating to Zekovic. The Appeals Chamber does
not share the Trial Chamber's opinion that “the fact that the Accused witnessed
the beating of Zekovic, ostensibly for the prohibited purpose of punishing
him for his failed escape, is not sufficient, in itself, to conclude that
the Accused knew or that he had reason to know that, other than in that particular
instance, beatings were inflicted for any of the prohibited purposes.”231
The Appeals Chamber holds that, while this fact is indeed insufficient, in
itself, to conclude that Krnojelac knew that acts of torture were being
inflicted on the detainees, as indicated by the Trial Chamber, it may nevertheless
constitute sufficiently alarming information such as to alert him to the risk
of other acts of torture being committed, meaning that Krnojelac had reason
to know that his subordinates were committing or were about to commit
acts of torture.
- Thus, at least from July 1993, Krnojelac had alarming information that
was such as to alert him to the risk that acts of torture might subsequently
be committed by his subordinates. This information must be taken together
with another fact, subsequent to the acts of torture inflicted on Zekovic,
that was accepted by the Trial Chamber in the following terms:
[I]n the presence of the Accused, detainees were told
by Todovic that, because of Zekovic’s escape, all food rations would be
halved, and that work and medical treatment would be forbidden. This punishment
actually lasted for at least ten days. All rooms were searched and medicines
were seized. In addition, following the escape, several detainees, all
work companions of Zekovic, were severely beaten by KP Dom guards as punishment
for Zekovic’s escape or in order to obtain information about his whereabouts.
The Accused denied having been aware of any punishment inflicted as a
result of Zekovic’s escape. The Trial Chamber does not accept his evidence;
nor did his evidence cause the Trial Chamber to have any reasonable doubt
as to the truth of the Prosecution witnesses on this issue. FWS-73 was
beaten and kicked with boots on the head and on his lower back so brutally
that he continues to the present day to suffer from the consequences of
his mistreatment. Furthermore, a group of detainees, including some of
those who had been beaten, were locked in solitary confinement for varying
periods of time. FWS-73 stayed in an isolation cell for 12 days.232
The Trial Chamber was satisfied that the various instances of mistreatment
were aimed at either obtaining information from those detainees who might
know something about Zekovic's escape or whereabouts following his escape,
or punishing them for his failed attempt, or because they were suspected
of having played a part in his escape. It stated that, in view of the seriousness
of the treatment inflicted upon FWS-73, the treatment amounted to torture.233
- The Appeals Chamber holds that the external context (i.e. the circumstances
in which the detention centre was set up) and the internal context (i.e. the
operation of the centre, in particular, the widespread nature of the beatings
and the frequency of the interrogations), taken together with the facts that
Krnojelac witnessed the beating inflicted on Zekovic ostensibly for the prohibited
purpose of punishing him for his failed escape, that after this event at least
one other detainee, witness FWS-73, was the victim of acts of torture and
that the Trial Chamber dismissed Krnojelac's claim that he was unaware of
any punishment inflicted as a result of Zekovic's escape, mean that no reasonable
trier of fact could fail to conclude that Krnojelac had reason to know that
some of the acts had been or could have been committed for one of the purposes
prohibited by the law on torture. Krnojelac had a certain amount of general
information putting him on notice that his subordinates might be committing
abuses constituting acts of torture. Accordingly, he must incur responsibility
pursuant to Article 7(3) of the Statute. It cannot be overemphasised that,
where superior responsibility is concerned, an accused is not charged with
the crimes of his subordinates but with his failure to carry out his duty
as a superior to exercise control. There is no doubt that, given the information
available to him, Krnojelac was in a position to exercise such control, that
is, to investigate whether acts of torture were being committed, especially
since the Trial Chamber considered he had the power to prevent the beatings
and punish the perpetrators.234 In holding
that no reasonable trier of fact could have made the same findings of fact
as the Trial Chamber, the Appeals Chamber takes the view that the Trial Chamber
committed an error of fact.
- As regards whether this error occasioned a miscarriage of justice, the
Appeals Chamber adopts the findings of the ICTR Appeals Chamber in the Rutaganda
Appeals Judgement and considers that when an accused has been erroneously
acquitted by the Trial Chamber, that Chamber failed in its duty by not identifying
all of the requisite legal implications of the evidence presented.235
The Appeals Chamber considers that, in order to correct the Trial Chamber's
error, the acquittals under counts 2 and 4 of the Indictment must be reversed
and Krnojelac found guilty under those counts pursuant to Article 7(3) of
the Statute for having failed to take the necessary and reasonable measures
to prevent the acts of torture committed subsequent to those inflicted on
Ekrem Zekovic and for having failed to investigate the acts of torture committed
prior to those inflicted on Ekrem Zekovic and, if need be, punish the perpetrators.
The convictions entered against Krnojelac under counts 2 and 4 of the Indictment
(torture) require the findings of guilt entered against him under counts 5
and 7 (inhumane acts and cruel treatment) to be reversed for the following
facts: paragraphs 5.21 (for FWS-73), 5.23, 5.27 (for Nurko Nisic and Zulfo
Veiz), 5.28 and 5.29 (for Aziz Sahinovic) of the Indictment and facts described
under points B4, B14, B22, B31, B52 and B57 of Schedule C of the Indictment,
on the ground that the crime of torture subsumes the crimes of inhumane acts
and cruel treatment.236 The possibility
of multiple convictions based on the same facts is thus eliminated.
2. Fourth ground of appeal: error in the Trial Chamber's
findings of fact regarding the murders committed at the KP Dom
- The Prosecution challenges paragraph 348 of the Judgment, which reads as
follows :
Finally the Prosecution alleges that the Accused incurred
superior responsibility for the deaths at the KP Dom pursuant to Article 7(3).
The position of the Accused as the warden of the KP Dom and his power
to prevent and punish crimes has already been determined by the Trial
Chamber. The Trial Chamber is not satisfied that the Prosecution has established
that the Accused incurred superior responsibility for the killings that
occurred at the KP Dom during the months of June and July 1992. The Trial
Chamber accepts that the Accused had knowledge of two deaths, the suicide
of Juso Dzamalija, and the suspicious death of Halim Konjo. The Trial
Chamber is also satisfied that the Accused had been told by RJ about beatings
and disappearances which were occurring in the month of June 1992. However
the Trial Chamber is not satisfied that this was sufficient information
in the possession of the Accused to put him on notice that his subordinates
were involved in the murder of detainees. Accordingly, the Accused’s responsibility
as a superior for the killings that occurred at the KP Dom during the
months of June and July 1992 has not been established.237
- The Prosecution submits that the only reasonable conclusion the Trial Chamber
could have reached on the basis of its findings of fact was that sufficient
information was available to Krnojelac to put him on notice of the risk that
his subordinates were involved in the murder of the detainees.238
The Prosecution maintains that there were clear and objective indicators of
the murders being committed at the KP Dom,239
such as the number of victims, the blood stains spattered along the corridors
of the KP Dom, the sounds of the beatings and the screams of the victims,
which could be heard by the other detainees, the sound of shots, the removal
of the victims’ bodies by the guards and the bullet holes in the entrance
walls.240
- The Prosecution asserts that, taken as a whole, these facts constitute
alarming information which should have prompted Krnojelac to open an investigation
which would have led him to discover that murders were being committed at
the KP Dom.241 It argues that the Trial
Chamber's findings in paragraph 318 of the Judgment relating to Krnojelac's
position as warden of the KP Dom and his authority to prevent the beatings
inflicted by his subordinates and punish the perpetrators also apply to the
killings these people committed since the killings were committed in close
connection with the beatings.242 The
Prosecution further recalls that the Trial Chamber reiterated its findings
on this point in the section of the Judgment dealing with killings, notably
in paragraph 348.243 It adds that Krnojelac
had continuous and unfettered access to the KP Dom and had the opportunity
to observe the consequences that the beatings had on the detainees, as specified
in paragraph 311 of the Judgment.244
- As with the previous ground, the Appeals Chamber considers that the relevant
facts accepted by the Trial Chamber with respect to the murders first need
to be restated:
- The persons listed in Schedule C who were killed at the KP Dom fell
within a pattern of events that occurred at the KP Dom during the months
of June and July 1992,245 and the
only reasonable explanation for the disappearance of these persons since
that time is that they died as a result of acts or omissions, with the relevant
state of mind, at the KP Dom.246 All
of the deceased persons listed in Schedule C were either beaten to death,
shot, or died later as a result of the injuries inflicted by the beating
in one of the isolation cells of the KP Dom;247
- Krnojelac was present at the KP Dom during this period in which the
beatings and subsequent killings occurred only until 24 June 1992, and he
did not return until about 2 or 3 July 1992;248
- The pattern established by the evidence is as follows: During the months
of June and July 1992, KP Dom guards went to the rooms of the detainees
after the roll call and called out from a list the names of individuals
to accompany them for interrogations. The list from which the names were
called was handed by the guard at the administration entrance to the guard
in the compound of the KP Dom. The persons called out were taken from their
rooms to the metal gate at the entrance to the administration building and
lined up outside the administration building. One by one, or in small groups,
they were called into a ground floor room of that building. They were taken
into one of the rooms on the left and right hand sides of the staircase,
or into a room marked “Tel” on Exhibit P 6 which was situated in the left
wing of the administration building, or the next room. There they were often
beaten. The beatings lasted well into the evening and the sounds of the
beating and the screams of the victims could be heard by other detainees
at the KP Dom. Some witnesses identified the person who was being beaten
from the screams or from the victim’s pleas or from questions asked of the
victim during the beating. In addition, some witnesses partially observed
the beating of one or more of the victims through a window of the room where
they were detained. These witnesses identified among the principal offenders
of the beating some of the KP Dom guards;249
- In some instances, the sound of pistol shots was heard, and then the
sound of a vehicle with a faulty exhaust pipe was heard being started in
front of the KP Dom;250
- During and after the beatings, guards of the KP Dom were seen carrying
blankets into the administration building and removing what appeared to
be bodies in those blankets. Blood and bloodied instruments were seen in
the rooms where the beatings occurred. Traces of blood were seen on the
Zastava Kedi vehicle with the faulty exhaust pipe which was heard leaving
the KP Dom after one or more of the beatings. Bullet holes were observed
in the walls of the hall behind the metal door to the administration building;251
- The guards of the KP Dom participated with the military in the killing
of detainees at the KP Dom. The guards’ acts involved beating, or shooting,
the detainees, and they were done by those persons with an intention either
to kill them or to inflict grievous bodily harm or serious injury, or in
a reasonable knowledge that such acts were likely to cause death;252
- Krnojelac had knowledge that people were being beaten and were disappearing
from the KP Dom during the evenings of the month of June 1992. Witness RJ
told Krnojelac in the month of June 1992 that the detainees could hear the
sounds of people being beaten in the administration building and that people
were disappearing from the KP Dom overnight. He asked Krnojelac what had
happened to a group of people who had disappeared overnight and was told
not to ask, as he did not know;253
- It was not proven that Krnojelac knew that people being called out in
the evenings of the month of June 1992 and disappearing from the KP Dom
were being killed. Krnojelac had knowledge of only two deaths – the suicide
of Juso Dzamalija and the suspicious death of Halim Konjo. As regards this
suspicious death, Krnojelac admitted that he knew about the death of Halim
Konjo the morning after his death had occurred in June 1992 and did not
deny that he told RJ about the death. His evidence was that he had been
told by Jakonovic that Konjo had committed suicide and that a commission
had come and investigated the death. He said that it was only natural for
him to tell his colleague about the death of Halim Konjo because there was
no reason for him to hide it. No other evidence was adduced by the Prosecution
to establish that Krnojelac was aware of the death of any other detainees,
other than Juso Dzamalija, who the Trial Chamber had already determined
died as a result of suicide,254 and
whose death Krnojelac admitted being aware of.255
- The Appeals Chamber does not consider the Trial Chamber's finding that
the information available to Krnojelac was insufficient to put him on notice
of his subordinates’ involvement in the murder of detainees to be reasonable.
- In paragraph 339 of the Judgment, the Trial Chamber concluded that 26 detainees
died as a result of the acts of members of the military coming from outside
into the KP Dom and of the guards of the KP Dom. Although the facts accepted
by the Trial Chamber do not necessarily mean that Krnojelac knew that
murders were being or might be being committed by his subordinates, they do
mean that Krnojelac had reason to know that murders were being or
might be being committed by his subordinates. Thus, as shown by the Prosecution,
the Appeals Chamber considers that no reasonable trier of fact could fail
to conclude that a certain amount of information was available to Krnojelac
which, taken as a whole, was sufficiently alarming and was such as to alert
him to the risk of murders being committed inside the prison. First, it appeared
that the detainees died as a result of the beatings committed within the KP
Dom. As the Trial Chamber observed, all of the deceased persons listed in
Schedule C were either beaten to death, shot, or died later as a result of
the injuries inflicted by the beating in one of the isolation cells of the
KP Dom. The Appeals Chamber refers back to the facts accepted by the Trial
Chamber - as set out for the previous ground of appeal - regarding the context
in which the beatings were committed, the widespread nature of these beatings
and Krnojelac's jurisdiction as prison warden over his subordinates, who were
the perpetrators of these beatings.256
The Trial Chamber indicated that, in view of the widespread nature of the
beatings at the KP Dom and the obvious resulting marks on the detainees, Krnojelac
could not have failed to learn of them, although he denies it. Furthermore,
the Appeals Chamber recalls that the Trial Chamber noted that Krnojelac was
aware that detainees were disappearing. The Trial Chamber accepted that, in
the month of June 1992, witness RJ told Krnojelac that the detainees could
hear the sounds of people being beaten in the administration building and
that people were disappearing from the KP Dom overnight. Lastly, the Appeals
Chamber is of the opinion that Krnojelac was in a position to see the blood
stains spattered along the corridors of the KP Dom and the bullet holes in
the walls of the entrance to the administration building. As the Trial Chamber
stated, the Accused went to the KP Dom almost every day of the working week.
While there he would go to the canteen, the prison yard or elsewhere inside
the compound, all places where he had ample opportunity to notice the physical
condition of the non-Serb detainees. There can therefore be no doubt that
he was also in a position to see the blood stains and bullet holes marking
the walls.
- The Appeals Chamber holds that these facts constitute sufficiently alarming
information such as to require Krnojelac to carry out an additional investigation.
Given that he was aware of the beatings and suspicious disappearances and
that he saw the bullet holes in the walls, Krnojelac was in a position to
ascertain that the perpetrators of the beatings may have committed murders.
At the very least, he should have carried out an investigation. The Appeals
Chamber holds that no reasonable trier of fact could have reached the findings
of fact made by the Trial Chamber. Accordingly, the Appeals Chamber considers
that the Trial Chamber committed an error of fact which, for the above reasons,257
occasioned a miscarriage of justice.
- The Appeals Chamber considers that, in order to correct the Trial Chamber’s
error, the acquittals under counts 8 and 10 of the Indictment must be reversed
and Krnojelac found guilty pursuant to Article 7(3) of the Statute for having
failed to take the necessary and reasonable measures to prevent the murders
committed subsequent to the disappearances of which he had knowledge and for
having failed to investigate the murders committed prior to those disappearances
and, if need be, punish the perpetrators of the murders, of whom he was the
superior.
D. The Prosecution’s fifth ground of appeal: the
Trial Chamber committed an error of fact when it found that the beatings
constituting inhumane acts and cruel treatment were not inflicted on discriminatory
grounds and that Krnojelac could not therefore be held responsible for
persecution as a superior
- The Prosecution submits that the Trial Chamber erred in concluding that
the beatings constituting inhumane acts and cruel treatment inflicted by the
guards on detainees at the KP Dom were not 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.258
- The Prosecution argues that the Trial Chamber took an unduly restrictive
approach to the question of what constitutes discrimination and failed to
consider the broader context in which the underlying acts took place.259
According to the Prosecution, the Trial Chamber arbitrarily compartmentalised
the incidents pleaded as persecution in the Indictment and lost sight of the
overall discriminatory nature of the KP Dom environment. The nature of the
environment was moreover amply illustrated in the Trial Chamber's findings.260
The beatings inflicted upon the detainees at the KP Dom were discriminatory
because they were carried out in a widespread and systematic manner for the
purpose of punishing, disadvantaging and oppressing the non-Serb detainees
because of their ethnicity.261 The Prosecution
states that, even when using the restrictive approach taken by the Trial Chamber,
it is unreasonable to conclude that the beatings were not discriminatory.
On this point, it reproduces the Trial Chamber's finding in paragraph 47 of
the Judgment in which the Chamber states that the Serb convicts, who were
kept in a different part of the building from the non-Serbs, “were not beaten
or otherwise abused”. The only reasonable conclusion to be drawn from this
finding is that the beatings inflicted upon the non-Serbs were carried out
on a discriminatory basis given that the Serbs themselves were not subjected
to beatings.262 In any event, and more
fundamentally, the Prosecution submits that the treatment of the non-Serbs
at the KP Dom need not have been compared with the treatment of another group.263
It contends that, given the spirit of discrimination against the non-Serbs
prevailing at the KP Dom, the Trial Chamber should have reasonably inferred,
in the absence of evidence to the contrary, that most of the acts committed
by the KP Dom guards were perpetrated on discriminatory grounds.264
- Even though, in its Brief, the Prosecution appears to raise the issue of
the Trial Chamber’s definition of a discriminatory act articulated in respect
of the facts of the case, it actually seems to challenge the Trial Chamber's
treatment of the specific issue of discriminatory intent, i.e. the mens
rea as opposed to the actus reus of the offence.265
The Appeals Chamber will therefore address the issue of whether it was unreasonable
for the Trial Chamber to conclude that only the acts of torture, inhumane
acts or cruel treatment set out in paragraphs 5.15 and 5.23 of the Indictment
(FWS-03 only ) were carried out on discriminatory grounds.266
- The Appeals Chamber reiterates 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.
The Appeals Chamber may not hold that the discriminatory intent of beatings
can be inferred directly from the general discriminatory nature of an attack
characterised as a crime against humanity.267
According to the Appeals Chamber, such a context may not in and of itself
evidence discriminatory intent. Even so, the Appeals Chamber takes the view
that discriminatory intent 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. Circumstances
which may be taken into consideration include 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.
- Additionally, the Appeals Chamber considers that the fact that such circumstances
may allow the actus reus of persecution (i.e. the discriminatory nature
of an act) to be established does not preclude a Trial Chamber from giving
consideration to those circumstances, as well as other factors, to establish
the mens rea of the offence, that is the discriminatory intent on
the basis of which the discriminatory act was committed. On this point, the
Appeals Chamber notes that the Trial Chamber correctly defined the crime of
persecution as it appears in paragraph 431 of the Judgment. It reads: “[…]
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).”268
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 finds this assertion to be incorrect. It is an erroneous
interpretation of the requirement for discrimination in fact (or a discriminatory
act) established by the case-law. To use the example provided in the footnote,
the Appeals Chamber considers that a Serb mistaken for a Muslim may still
be the victim of the crime of persecution. The Appeals Chamber considers
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.
- In this case, the Trial Chamber indicated that the “detention of non-Serbs
in the KP Dom, and the acts or omissions which took place therein, were clearly
related to the widespread and systematic attack against the non-Serb civilian
population in the Foca municipality.”269
The Appeals Chamber holds that it may be inferred from this finding that the
treatment meted out to the non-Serb detainees was the consequence of the aforementioned
discriminatory policy at the root of their detention.270
Furthermore, the Appeals Chamber recalls the Trial Chamber's findings in paragraph
47 of the Judgment:
The few Serb convicts who were detained at the KP Dom
were kept in a different part of the building from the non-Serbs. They
were not mistreated like the non-Serb detainees. The quality and
quantity of their food was somewhat better, sometimes including additional
servings. They were not beaten or otherwise abused, they were not
locked up in their rooms, they were released once they had served their
time, they had access to hygienic facilities and enjoyed other benefits
which were denied to non-Serb detainees.271
The Appeals Chamber observes that this finding shows that only the non-Serb
detainees were, in actual fact, subject to beatings. It holds that the differences
in the way that the Serb and non-Serb detainees were treated cannot reasonably
be attributed to the random posting of the guards. This finding therefore
confirms the above presumption. Accordingly, the Appeals Chamber considers
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. The Appeals Chamber considers that, even if it were
to be assumed that the blows inflicted upon the non-Serb detainees were
meted out in order to punish them for violating the regulations, the decision
to inflict such punishment arose out of a will to discriminate against them
on religious or political grounds since punishment was only inflicted upon
non-Serb detainees.
- The Prosecution submits that Krnojelac should be found guilty pursuant
to Article 7(3) of the Statute for the acts of persecution committed.272
The Appeals Chamber restates that the Trial Chamber acknowledged that Krnojelac
had voluntarily accepted his position in full awareness that non-Serb civilians
were being illegally detained at the KP Dom because of their ethnicity.273
Furthermore, Krnojelac admitted that he knew that the non-Serb detainees were
detained because they were non-Serbs and that he knew that none of the procedures
in place for legally detained persons was ever followed at the KP Dom.274
The Trial Chamber found that Krnojelac knew that non-Serb detainees were being
beaten and generally mistreated.275
He “ knew about the conditions of the non-Serb detainees, the beatings and
the other mistreatment to which they were subjected while detained at the
KP Dom, and […] he knew that the mistreatment which occurred at the KP Dom
was part of the attack upon the non-Serb population of Foca town and municipality.”276
In view of all the foregoing, the Appeals Chamber considers that Krnojelac
who, as prison warden, retained jurisdiction over all detainees in the KP
Dom277 had sufficient information to
alert him to the risk that inhumane acts and cruel treatment were being committed
against the non-Serb detainees because of their political or religious affiliation.
The Trial Chamber therefore committed an error of fact which occasioned a
miscarriage of justice.278
- The Appeals Chamber considers that, in order to correct the Trial Chamber’s
error, Krnojelac must be found guilty under count 1 of the Indictment (persecution
), as requested by the Prosecution,279
in order to reflect his liability pursuant to Article 7(3) of the Statute
for the beatings described in paragraphs 5.9, 5.16, 5.18, 5.20, 5.21, 5.27
and 5.29 of the Indictment and the facts corresponding to numbers A2, A7,
A10, A12, B15, B17, B18, B19, B20, B21, B25, B26, B28, B30, B33, B34, B37,
B45, B46, B48, B51 and B59 in Schedule C of the Indictment, since the Trial
Chamber viewed all of these beatings as inhumane acts and cruel treatment
under Articles 5(i) and 3 of the Statute respectively.280
Consequently, the convictions entered against Krnojelac under count 5 of the
Indictment (crime against humanity of inhumane acts) for the above beatings
must be reversed since the crime of persecution in the form of inhumane acts
subsumes the crime against humanity of inhumane acts. The possibility of multiple
convictions based on the same facts is thus eliminated. Krnojelac’s liability
under count 7 of the Indictment based on the above beatings is confirmed.
F. The Prosecution’s sixth ground of appeal: the
Trial Chamber erred in acquitting Krnojelac on the count of persecution
(forced labour)
- Under counts 16 and 18 of the Indictment, Krnojelac was charged with enslavement
as a crime against humanity pursuant to Article 5(c) of the Statute and with
slavery as a violation of the laws or customs of war pursuant to Article 3
of the Statute.281 The charges of enslavement
and slavery and the charges of persecution under count 1 (forced labour) were
underpinned by the same facts.282 The
Trial Chamber found that the Prosecution had failed to establish, with two
exceptions, that the work performed by the detainees was forced or involuntary.283
The Trial Chamber further held that Krnojelac was not criminally responsible
for the forced labour of these two detainees under either Article 7(1) or
Article 7( 3) of the Statute.284 The
Chamber accordingly acquitted Krnojelac on counts 16 and 18 of the Indictment
(enslavement and slavery) and on count 1 (persecution in the form of forced
labour).285
- The Prosecution requests that the acquittal on count 1 of the Indictment
be reversed for the following two principal reasons.286
1. There was sufficient evidence that the labour
was involuntary and to establish involuntary labour as a form of persecution
(a) The Trial Chamber erred in finding that there
was insufficient evidence that the labour was involuntary
- The Prosecution claims that, by using the involuntary test as a legal criterion
here, the Trial Chamber erroneously decided in the case of eight detainees287
that the evidence adduced was insufficient to conclude that they had been
forced to work.288 The Trial Chamber
correctly held that, generally, the prohibition in international humanitarian
law is against forced or involuntary labour – the “involuntariness” aspect
being the definitional feature of forced or compulsory labour.289
The Prosecution accepts that, overall, the Trial Chamber gave a legally correct
definition of “involuntariness”290 but
asserts that it applied that definition to the facts erroneously. In its view,
lack of consent may be established from the objective circumstances without
specific proof of the victim’s subjective state of mind. However, contrary
to the defined test, the Trial Chamber required the Prosecution to prove that
the detainee had “objected to working or […] had been told by a person in
authority that he would be punished if he did not.”291
Similarly, the Trial Chamber erred in requiring the Prosecution to prove not
only that the detainee was afraid to refuse work but also that he did not
want to work.292 The Prosecution nonetheless
maintains that even where there is no direct evidence from a detainee that
his labour was not voluntary, the Trial Chamber must take into consideration
other objective circumstances that were so coercive as to negate any possibility
of consent.293 If available, evidence
which establishes the victim’s subjective state of mind and relates to the
facts underpinning his belief that he was forced to work is clearly relevant.
Such evidence may of itself be sufficient to establish lack of consent or
may be evidence supporting a finding that the objective circumstances were
such as to negate any possibility of consent. That said, the Prosecution argues
that such evidence is not essential and that the existence of circumstances
negating any possibility of consent may also be proved by other evidence.294
The Trial Chamber took into account a number of factors it considered relevant,
such as 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
do so or put in solitary confinement, claims of longer term consequences of
the labour, the fact of detention and the inhumane living conditions at the
KP Dom.295 However, the Prosecution
contends that whilst all of these factors may be relevant in determining whether
there were circumstances that were so coercive as to negate any possibility
of consent, none of these factors is of itself essential if the existence
of lack of consent can be established from other objective circumstances.
It submits that most or all of these factors were present in the case of each
of the detainees concerned.
- In view of all the testimony on the point, the Trial Chamber did not believe
that, in this case, “the general circumstances in the KP Dom during the Accused's
administration were of such a nature as to render the work of every detainee
involuntary ”296 or, stated otherwise,
that the objective circumstances were so coercive as to negate any possibility
of consent. The Prosecution submits that the only reasonable conclusion open
to a trier of fact on the evidence before the Trial Chamber in this case was
that the conditions in the KP Dom were so coercive as to negate any possibility
of consent by the workers unlawfully detained there.297
- The Appeals Chamber understands that the Prosecution wants it first to
address the issue of whether the conditions at the KP Dom were so coercive
as to exclude any possibility of consent by the workers. As it has done for
the previous grounds, in order to respond to this issue, the Appeals Chamber
will recapitulate the relevant facts accepted by the Trial Chamber:
- The KP Dom held several hundred Muslim civilian men, who were detained
there for periods lasting from four months to more than two and a half years.298
The KP Dom had the capacity to house more than the maximum 500-700 non-Serbs
detained, but the detainees were crowded into a small number of rooms. Solitary
confinement cells designed to hold one person were packed with up to 18
people at a time, making it impossible for the detainees to move around
the cell, or to sleep lying down;299
- The conditions under which non-Serbs were detained were below any legal
standard regulating the treatment of civilians in times of armed conflict.
Non-Serb detainees were given insufficient food, as a result of which many
of them suffered substantial weight loss, sometimes more than 40 kilograms
or up to a third of their weight. They were kept in various rooms, including
solitary confinement cells, which were not heated and were extremely cold
during the harsh winter of 1992. Clothes which they had made from spare
blankets to keep warm were confiscated by guards.300
There was a deliberate policy to feed the non-Serb detainees barely enough
for their survival. All non-Serb detainees suffered considerable weight
loss ranging from 20 to 40 kilograms during their detention at the KP Dom;301
- Hygienic conditions were deplorable and washing facilities minimal,
while medical care was inadequate and medicine in very short supply. A basic
medical service was provided but those in need of urgent medical attention
were left unattended or given insufficient treatment. At least one detainee
died as a result of the lack of or late medical care;302
- Non-Serb detainees were locked up in their rooms for most of the day,
being allowed out only to go to the canteen and back. Some, however, were
taken out to work knowing that they would receive additional and much needed
food if they did;303
- Many of the detainees were subjected to beatings and other forms of
mistreatment, sometimes for no reason, sometimes as a punishment for minor
breaches of the prison regulations or in order to obtain information or
a confession from them. The screams and moans of those being beaten could
be heard by other detainees, instilling fear among all the detainees. Many
were returned to their rooms with visible wounds and bruises resulting from
the beating;304
- Many non-Serb detainees were taken out of the KP Dom during the period
covered by the Indictment, allegedly to be exchanged or in order to carry
out certain tasks such as picking plums. Many of them did not come back
and were never seen again;305
- Brutal and deplorable living conditions were imposed upon the non-Serb
detainees at the KP Dom in the period from April 1992 to July 1993. They
constituted acts and omissions of a seriousness comparable to the other
crimes enumerated under Article 3 and Article 5 of the Statute and amount
to inhumane acts and cruel treatment under those articles;306
- There was a deliberate policy of isolating detainees within the KP Dom.
Only those detainees given work assignments were permitted to spend prolonged
periods outside of their rooms. Detainees who were taken to work assignments
outside of the KP Dom were kept isolated in a separate room to prevent news
about the “outside world” from spreading among the other detainees. To ensure
compliance with these unwritten “rules” on communication, violations were
punished with solitary confinement and /or mistreatment, such as beatings;307
- The overcrowding in the prison was aggravated by the poor hygienic conditions;308
- The conditions of detention were physically taxing and the non-Serb
detainees were generally subject to a psychologically exhausting regime
while detained at the KP Dom. Any attempts made by non-Serb detainees to
improve their living conditions in the camp were punished with solitary
confinement. Acts which resulted in beatings or periods in the isolation
cells included efforts to get additional food, or access to warm water,
and attempts to communicate with each other, the guards, or the outside
world;309
- The non-Serb detainees were subjected to harrowing psychological abuse
during their period of detention at the KP Dom. The detainees were exposed
to the sounds of torture and beatings over a period of months, in particular
in June and July 1992, and they constantly feared that they would be the
next to be selected;310
- On the whole, it appears that there was a small core group of detainees
and convicts who mostly worked on the farm, at the metal workshop or at
the furniture factory during Krnojelac’s administration. This core group
of detainees may have numbered between 20 and 45. The detainees who worked
were generally skilled and able to work ;311
- When reasons were given, they were mainly that the detainee wished to
obtain the extra food given to workers or to escape from his room;312
- The detainees had to work in the metal workshop, repairing army vehicles
or looted cars. The number of people working in and for the workshop numbered
between about six and fifteen. Apart from a snack, which all the KP Dom
detainees who worked received, and cigarettes that Goljanin and sometimes
the guards gave them, the metal workers had slightly more freedom than other
working detainees, and they were sometimes able to get pears from trees
near to the workshop.313
The Trial Chamber was not satisfied that those detainees who refused to
or could not work were sent to solitary confinement during Krnojelac’s administration.
The evidence adduced by the Prosecution to demonstrate this allegation was
equivocal.314 Likewise, there was
no direct evidence adduced by the Prosecution that those who could not or
were unwilling to work were forced to do so during Krnojelac’s administration.315
- The Prosecution asserts that none of the evidence showed that the detainees
benefited from working at the KP Dom or that their detention conditions improved
in any significant manner and it argues that the only reasonable inference
from the evidence was that detainees who volunteered to work did so because
they were in constant fear of repercussions and were attempting to escape
the brutal and deplorable living conditions. The Appeals Chamber notes that
the living conditions at the KP Dom were clearly appalling. Of the facts set
out above, some are particularly significant and should be emphasised. The
Trial Chamber concluded that, at the KP Dom, there was a deliberate policy
to feed the non-Serb detainees barely enough for their survival. All non-Serb
detainees suffered considerable weight loss ranging from 20 to 40 kilograms
during their detention at the KP Dom. Moreover, non-Serb detainees were locked
up in their rooms for most of the day, being allowed out only to go to the
canteen and back. Some, however, were taken out to work knowing that they
would receive additional and much needed food if they did. Finally, the non-Serb
detainees were subjected to harrowing psychological abuse during their period
of detention at the KP Dom. The detainees were exposed to the sounds of people
being beaten and tortured over a period of months, in particular in June and
July 1992, and they constantly feared that they would be the next to be selected.
The Appeals Chamber holds that, given the specific detention conditions of
the non-Serb detainees at the KP Dom, a reasonable trier of fact should have
arrived at the conclusion that the detainees’ general situation negated any
possibility of free consent. The Appeals Chamber is satisfied that the detainees
worked to avoid being beaten or in the hope of obtaining additional food.
Those who refused to work did so out of fear on account of the disappearances
of detainees who had gone outside of the KP Dom. The climate of fear made
the expression of free consent impossible and it may neither be expected of
a detainee that he voice an objection nor held that a person in a position
of authority need threaten him with punishment if he refuses to work in order
for forced labour to be established. In such circumstances, the fact that
a detainee raised an objection is immaterial in ascertaining whether it was
truly impossible to object.
- The Appeals Chamber holds that the specific circumstances of the KP Dom
detainees’ prison life were therefore such as to make free consent impossible.
The Appeals Chamber notes that, in this case, most of the witnesses called
by the Prosecution in support of its ground of appeal expressed an opinion
on the issue of whether they felt forced to work. On this point, 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.
- Consequently, the Appeals Chamber sets aside the Trial Chamber’s findings
with respect to witnesses FWS-249, FWS-144, Rasim Taranin, FWS-66, FWS-198,
Ekrem Zekovic, Muhamed Lisica and FWS-71 and concludes that these witnesses
were forced to work.
- The Appeals Chamber will now analyse the Prosecution’s second argument.
(b) If forced labour is established, the Trial
Chamber’s findings are sufficient to warrant Krnojelac’s conviction for
persecution based on forced labour
- The Prosecution refers to the Trial Chamber’s findings in paragraph 471
of the Judgment.316 Here again, it does
not challenge the applicable law set out by the Trial Chamber.317
It argues that if the Appeals Chamber were to set aside the Trial Chamber’s
findings by holding that the detainees’ labour was forced, other findings
made by the Trial Chamber would amply bear out the discrimination shown in
the selection of detainees compelled to perform forced labour and therefore
fully justify a conviction for persecution based on that forced labour.
- The Appeals Chamber reiterates 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. It holds that, in these circumstances, 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. Accordingly, the degree of gravity of persecution based on those
acts is the same as that of the crimes expressly laid down under Article 5
of the Statute.
- As the gravity test has been met, it is now appropriate to determine whether
the acts committed were indeed discriminatory and whether they were committed
with discriminatory intent. The Defence maintains that, far from proving the
discriminatory nature of the tasks requested of the non-Serb prisoners, the
evidence adduced at trial shows that the Serb prisoners were in the main made
to perform the same tasks as the non-Serbs and that the use of essentially
Muslim labour had become necessary because of the significant number of Serb
men at the front. The Defence contends that the discrimination required by
persecution has not therefore been established.318
The Appeals Chamber disagrees. What must be borne in mind is the Trial Chamber’s
finding in paragraph 438 of the Judgment that the Serbs were legally imprisoned
at the KP Dom, whereas the non-Serbs were detained for no lawful reason. It
states: “[w]hile some Serbs were also held in the KP Dom, they were held legally,
having been convicted by courts of law prior to the outbreak of the conflict
or having been detained for military offences during the conflict. By contrast,
the non-Serbs were not detained on any legal ground, nor was their continued
confinement subject to review.”319 The
Appeals Chamber holds that there can be no question of the Serb detainees
being subjected to forced labour since their detention was legal. The Appeals
Chamber considers that a comparison between the labour performed by the Serb
detainees and that performed by the non-Serb detainees is immaterial here.
There is a principle which states that the work required of a person in the
ordinary course of lawful detention is not regarded as forced or compulsory
labour. This principle is enshrined in, inter alia, Article 4(3) of
the Convention for the Protection of Human Rights and Fundamental Freedoms
(“ECHR”). It sets out that “‘forced or compulsory labour’ shall not include:
a) any work required to be done in the ordinary course of detention imposed
according to the provisions of Article 5 of this Convention [governing notably
the lawfulness of an arrest or detention] or during conditional release from
such detention.”
- Since the case of the Serb prisoners is irrelevant here, the issue of discrimination
against the non-Serb detainees must be examined with reference to the objective
facts of the case. The Appeals Chamber has already pointed out that, in this
case, the Trial Chamber stated that the “detention of non-Serbs in the KP
Dom, and the acts or omissions which took place therein, were clearly related
to the widespread and systematic attack against the non-Serb civilian population
in the Foca municipality.”320 The Appeals
Chamber has also already indicated that it could be inferred from the context
that the treatment meted out to the non-Serb detainees was the consequence
of the aforementioned discriminatory policy at the root of their detention
as long as, given the facts of the case, circumstances surrounding the commission
of the acts of forced labour substantiated the existence of such intent. In
the Appeals Chamber’s opinion, there can be no doubt that the non-Serb prisoners
were detained and forced to work on account of their ethnicity. The Trial
Chamber emphasised that “[t]he few Serb convicts who were detained at the
KP Dom were kept in a different part of the building from the non-Serbs. They
were not mistreated like the non-Serb detainees. The quality and quantity
of their food was somewhat better, sometimes including additional servings.
They were not beaten or otherwise abused, they were not locked up in their
rooms, they were released once they had served their time, they had access
to hygienic facilities and enjoyed other benefits which were denied to non-Serb
detainees.”321 It is clear, however,
that the non-Serb detainees were subjected to a wholly different regime. The
overcrowding of the solitary confinement cells in which the detainees were
so packed that they were unable to move around or lie down, the starvation
and its principal effects in terms of weight loss, the widespread nature of
the beatings and mistreatment and the psychological abuse linked to the detention
conditions and mistreatment constitute circumstances particularly indicative
of the discriminatory character of the acts of forced labour imposed upon
the non-Serb detainees.
- The Appeals Chamber considers that the Trial Chamber was misled by its
case-by-case approach to each of the acts of forced labour and that, consequently,
it failed to take into consideration all of the circumstances surrounding
the commission of these acts - circumstances which, in this instance, go to
prove that the said acts did indeed form part of the discriminatory environment
at the KP Dom, as did the unlawful detention and the beatings inflicted. The
Appeals Chamber thus finds that, in the light of such circumstances, no reasonable
trier of fact would have failed to conclude that the acts of forced labour
were imposed with discriminatory intent.
- The Appeals Chamber is therefore in no doubt that the eight detainees forced
to work suffered persecution within the meaning of Article 5 of the Statute.
2. The Trial Chamber erred in holding that Krnojelac
was not individually responsible under Article 7(1) of the Statute
- In challenging the Trial Chamber’s decision to acquit Krnojelac on count
1 of the Indictment the Prosecution also raises a second sub-ground in which
it submits that the Trial Chamber erred in concluding that Krnojelac was not
liable as a co-perpetrator in a joint criminal enterprise for the labour of
the detainees who it had been established were forced to work. The Prosecution
alternatively argues that if the Appeals Chamber were not to uphold the first
sub-ground, Krnojelac should be held liable as an aider and abettor.322
- The Appeals Chamber has already stated that, in this case, the alleged
crime of forced labour should be dealt with as forming part of a first category
joint criminal enterprise without reference to the system concept, and that
the participants may be viewed as co-perpetrators of a joint criminal enterprise
whose purpose was to commit the crimes in question or as aiders and abettors
depending upon whether, as in the first instance, the individual concerned
shared the common intent, or, as in the second, merely knew of it (see paras.
121 to 123 of this Judgement).
- In this respect, the Appeals Chamber considers that Krnojelac must not
be deemed a mere aider and abettor but a co-perpetrator of the crimes of forced
labour. The Appeals Chamber holds that Krnojelac shared the intent to make
the non-Serb detainees perform unlawful labour in conditions which it found
to be such that it was impossible for them freely to consent to work. The
Appeals Chamber finds that the only conclusion which a reasonable trier of
fact should have reached was that Krnojelac was guilty as a co-perpetrator
of persecution based on the forced labour of the non-Serb detainees for the
following reasons: Krnojelac was aware of the initial decision to use KP Dom
detainees to work323 and was responsible
for all the business units and work sites associated with the prison 324
and, as such, played a central role. Moreover, Krnojelac voluntarily accepted
the position in full awareness that non-Serb civilians were being illegally
detained at the KP Dom because of their ethnicity and he knew that none of
the procedures in place for legally detained persons was ever followed at
the KP Dom.325 He exercised final control
over the work of detainees in and for the KP Dom. He had regular meetings
with the heads of the furniture factory, metal workshop and farm where detainees
worked.326
- In light of the foregoing, the Appeals Chamber believes that Krnojelac
could not have failed to share the intent to use unlawfully detained non-Serb
prisoners to work. The Appeals Chamber therefore finds that the Trial Chamber’s
decision to acquit Krnojelac of the crime of persecution based on forced labour
must be reversed and that, pursuant to Article 7(1) of the Statute, Krnojelac
must be convicted of persecution based on forced labour as a co-perpetrator
of the joint criminal enterprise whose purpose was to persecute the non-Serb
detainees by exploiting their forced labour.
G. The Prosecution’s seventh ground of appeal:
persecution by way of deportation and expulsion
- The Prosecution puts forward five sub-grounds under this ground of appeal
with regard to the Trial Chamber’s findings on count 1 of the Indictment –
persecution by way of “deportation and expulsion”.327
1. Persecution by way of deportation and expulsion
- The Prosecution claims that the Trial Chamber erred in finding that “the
acts of forced displacement charged as persecution by way of deportation and
expulsion under Article 5(h) of the Statute required proof that the victims
were forcibly displaced across a national border.”328
The Prosecution adds that “deportation under Article 5 of the Statute includes
not only unlawful displacements across a national boundary but also unlawful
displacements within a State’s national boundaries”329
and that “the Blaskic Trial Judgement correctly defined deportation.”330
The Prosecution also claims that “incidents of forcible displacement were
charged as persecution as a crime against humanity, and not as a breach of
the legal provisions regulating international armed conflict.”331
The Prosecution further claims that the Trial Chamber was wrong to find that
the term “expulsion”332 also denotes
crossing a national boundary.333
- Under this sub-ground, the Prosecution relies mainly on the Trial Chamber’s
error in defining “deportation” and, to a certain extent, on its erroneous
definition of “expulsion”. The Appeals Chamber does not believe that the definition
of these terms is the main issue. The subject of the submissions before the
Trial Chamber was persecution and the Appeals Chamber holds that two questions
arise from the Prosecution’s conclusions: (a) did the Trial Chamber correctly
interpret the allegations of persecution in the Indictment and (b) were the
acts of displacement found by the Trial Chamber such that they could constitute
crimes underlying persecution.
(a) The Prosecution’s allegation of persecution
- In the Indictment, Krnojelac is charged with persecution, punishable under
Article 5(h) of the Statue, and with deportation and expulsion. He is not
charged separately with “expulsion” (a crime against humanity).334
The Prosecution alleges the following:
As part of the persecution, MILORAD KRNOJELAC participated
in or aided and abetted the execution of a common plan involving: […]
f) the deportation and expulsion of Muslim and other
non-Serb civilians detained in the KP Dom detention facility to Montenegro
and other places which are unknown. […]
In addition, MILORAD KRNOJELAC assisted in the deportation
and expulsion of the majority of Muslim and non-Serb males from the Foca
municipality by selecting detainees from the KP Dom for deportation or
transfer to Montenegro and other unknown places. Several groups of detainees
were transported to other detention facilities in Kalinovik, Rudo and
Kula. In late August 1992, 35 elderly or ill detainees were deported by
bus from the KP Dom to Rozaj in Montenegro. On that same day, Muslim detainees,
previously selected with the 35 detainees to be deported to Montenegro,
were taken for an alleged exchange in Gorazde. These detainees have never
been seen alive again. From June 1992 until March 1993, at least 266 Muslims
and other non-Serbs detained in the KP Dom were deported and transferred
to unknown places. These detainees have also never been seen alive again.
The majority of these disappearances occurred from August 1992 to October
1992. The main reason the prison authorities gave for the removal of these
missing detainees was to use them in prisoner exchanges.335
- As stated above, the Prosecution alleged persecution in the following terms
: “deportation and expulsion to Montenegro and other unknown destinations”;
“were transported to other detention facilities in Kalinovnik, Rudo and Kula”;
“35 elderly or ill detainees were transported by bus from the KP Dom to Rozaj
in Montenegro [and] were taken for an alleged exchange in Gorazde.” The Appeals
Chamber notes that the municipalities of Kalinovnik, Rudo, Kula and Gorazde
are in Bosnia and Herzegovina and that Rozaj municipality is in Montenegro.
The Prosecution was obviously referring to displacement within Bosnia and
Herzegovina as well as across its borders. It used the term “deportation”
for alleged displacements outside of Bosnia and Herzegovina and the terms
“transferred”, “transported” or “taken away” for cases of displacement within
Bosnia and Herzegovina. In the charges in the Indictment, these incidents
were characterised as persecution by way of deportation and expulsion. A separate
charge of expulsion does not appear in the Indictment. Moreover, the Appeals
Chamber notes that in its Pre-Trial Brief, the Prosecution stated that the
term “deportation” denoted displacements within a state as well as across
a state’s borders.336 Furthermore, it
did not define the term “expulsion”.
- The Trial Chamber found that “the majority of incidents alleged by the
Prosecution to constitute deportation and expulsion did take place.”337
In other words, it found that most of the material facts underlying this part
of the charge of persecution had been established. Applying these conclusions
to the analysis of the crime of persecution, the Trial Chamber found that
deportation “ requires the displacement of persons across a national border,
to be distinguished from forcible transfer which may take place within national
boundaries.”338 The Trial Chamber noted
that the Prosecution had made no effort “to define the act of expulsion or
to differentiate it from the act of deportation” and that expulsion was not
a technical term.339 Moreover, the Trial
Chamber stated that “[w]hile there is no clear definition of expulsion 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.”340 The Trial Chamber
dismissed the allegation of persecution by providing a legal definition of
deportation and expulsion as terms that only cover displacement across a national
border and added that given that “[t]he Prosecution has not pleaded forcible
transfers at all in the Indictment, […] the Trial Chamber cannot consider
that offence as founding a charge of persecution.”341
- The Appeals Chamber holds that the Trial Chamber disregarded the fact that
the crime alleged here was persecution by way of deportation and expulsion
and not the separate crimes of expulsion or forcible transfer. The Appeals
Chamber considers that, in this case, the Prosecution used the terms “deportation”
and “expulsion” in the Indictment as general terms in order to cover acts
of forcible displacement through which the Prosecution alleges the crime of
persecution was committed.
- The Appeals Chamber holds that although the wording in the Indictment was
not the most appropriate, it did not, however, contain any ambiguity as to
the fact that Krnojelac was being prosecuted for having committed the crime
of persecution by way of forcible displacements both within and outside the
borders of Bosnia and Herzegovina.
- The Appeals Chamber notes that in this case the Trial Chamber found that
there had been cases of displacement across a national border as well as within
Bosnia and Herzegovina, which included a “group of 35 men […] displaced across
a national border to Montenegro”342
and that the so-called exchanges took place on “15 or 19 August 1992 (15-20
men), summer of 1992, 22 August 1992 (8 men), 25 August 1992 (around 18-25
men), 31 August - 2 September 1992 (around 71 men), 10 September 1992 (between
10-40 men), 12 September 1992 (50 men), sometime between 11 and 16 December
1992 (7 men), February or March 1993 (Dr Aziz Torlak), and 21 March 1993 (Sucrija
Softic).”343 The Trial Chamber also
established the displacement of “approximately twenty younger men [who were]
taken away, possibly to Gorazde.”344
The Appeals Chamber holds that the Trial Chamber was required to rule on the
material facts alleged and to decide whether such acts constituted persecution
under Article 5(h) of the Statute. By failing to do so, it committed an error
of law. The Appeals Chamber will now examine whether this error invalidates
the decision.
(b) Acts of displacement that can be characterised
as persecution (a crime against humanity)
- The Appeals Chamber will now examine which acts of displacement may constitute
persecution when committed with the requisite discriminatory intent and whether
the acts alleged by the Prosecution were such that they were acts constituting
the crime of persecution. The Appeals Chamber holds that, in order to do this
and contrary to what the Prosecution claims, it is not necessary to define
deportation as “an umbrella term that covers acts of forcible displacement,
whether internal or cross -border”345
so as to consider whether these acts were such as to constitute the crime
of persecution.
- The Appeals Chamber holds that 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. The prohibition against
forcible displacements aims at safeguarding the right and aspiration of individuals
to live in their communities and homes without outside interference. 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 holds that the crime of persecution may take different
forms. It may be one of the other acts constituting a crime under Article
5 of the Statute346 or one of the acts
constituting a crime under other articles of the Statute.347
- However, a conviction can only be based on an offence that existed at the
time the acts or omissions with which the accused is charged were committed
and which was sufficiently foreseeable and accessible.348
It is therefore necessary to investigate which acts of displacement are considered
crimes under customary international law. The Geneva Conventions are considered
to be the expression of customary international law.349
Article 49 of the Fourth Geneva Convention prohibits displacement to another
state, within or from occupied territory. It provides that: “[i]ndividual
or mass forcible transfers, as well as deportations of protected persons from
occupied territory to the territory of the Occupying Power or to that of any
other country, occupied or not, are prohibited, regardless of their motive.”350
Moreover, Article 85 of Additional Protocol I prohibits “the transfer by the
Occupying Power of parts of its own civilian population into the territory
it occupies, or the deportation or transfer of all or part of the population
of the occupied territory within or outside this territory in violation of
Article 49 of the Fourth Convention.”351
Furthermore, Article 17 of Additional Protocol II to the Geneva Conventions
explicitly prohibits the forced displacement of the population within or outside
a country in which an internal armed conflict has broken out. It reads as
follows:
Article 17 - Prohibition of forced movement of civilians
- 1. The displacement of the civilian population shall not be ordered
for reasons related to the conflict unless the security of the civilians
involved or imperative military reasons so demand. Should such displacements
have to be carried out, all possible measures shall be taken in order
that the civilian population may be received under satisfactory conditions
of shelter, hygiene, health, safety and nutrition. 2. Civilians shall
not be compelled to leave their own territory for reasons connected with
the conflict.352
Article 17 of Additional Protocol II uses the term “forced movement” to
describe displacements within and across borders during an internal armed
conflict. However, the Commentary to this Protocol states that the term
“forced movement” also covers “deportation measures obliging an individual
to leave his country”.353 The Geneva
Conventions and their Additional Protocols prohibit forced movement within
the context of both internal and international armed conflicts. This is
relevant when determining the gravity of the acts in question, which is
what the Appeals Chamber will now consider.
- For these acts to be considered acts constituting the crime of persecution,
they must have been committed, separately or cumulatively, with discriminatory
intent and must constitute a crime of persecution the gravity of which is
equal to the other crimes listed in Article 5 of the Statute. On several occasions,
the Tribunal’s Trial Chambers have found that the forced displacement of the
population within a state or across its borders constituted persecution.354
The Secretary-General’s report, which was approved by the Security Council,355
states that “[c]rimes against humanity are aimed at any civilian population
and are prohibited regardless of whether they are committed in an armed conflict,
international or internal in character.”356
It further states that “[c]rimes against humanity refer to inhumane acts of
a very serious nature, such as wilful killing, torture or rape” and that “[i]n
the conflict in the territory of the former Yugoslavia, such inhumane acts
have taken the form of so-called ‘ethnic cleansing’ and widespread and systematic
rape.”357 The Security Council was therefore
particularly concerned about acts of ethnic cleansing and wished to confer
jurisdiction on the Tribunal to judge such crimes, regardless of whether they
had been committed in an internal or an international armed conflict. Forcible
displacements, taken separately or cumulatively, can constitute a crime of
persecution of equal gravity to other crimes listed in Article 5 of the Statute.
This analysis is also supported by recent state practice, as reflected in
the Rome Statute, which provides that displacements both within a state and
across national borders can constitute a crime against humanity and a war
crime.358
- The Appeals Chamber concludes 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. The Appeals Chamber finds that the facts
accepted by the Trial Chamber fall within the category of displacements which
can constitute persecution.
- For the reasons set out above, the Appeals Chamber holds that at the time
of the conflict in the former Yugoslavia, displacements both within a state
and across a national border were crimes under customary international law.
Consequently, the principle nullum crimen sine lege has been respected.359
- The Appeals Chamber finds that by failing to establish whether the alleged
acts of forcible displacement constituted persecution, the Trial Chamber committed
an error of law which invalidates its decision. In view of the foregoing,
the Appeals Chamber considers that it is not necessary to express a view either
supporting or rejecting the Trial Chamber’s definition of the terms “deportation”
and “expulsion ”. The issue here was to determine whether the alleged acts
of forcible displacement - provided that they were committed with discriminatory
intent - could constitute the crime of persecution. The Appeals Chamber notes
that the terms “deportation” and “expulsion” in paragraph 5.2(f) of the Indictment
were clearly used by the Prosecution as generic terms covering all the acts
alleged here as acts constituting the crime of persecution. No reference was
made in the Indictment to Article 5(d) of the Statute which covers deportation.
It is thus not necessary to define a term which does not appear in the provision
upon which the Indictment is based.
- Given the other arguments relied upon in support of this ground of appeal,
the Appeals Chamber will determine whether the facts that have been established
constitute persecution entailing Krnojelac’s criminal responsibility.
2. Exercise of genuine choice
- The Prosecution claims that the Trial Chamber erred in fact in finding
that the 35 non-Serb KP Dom detainees who were taken across the border to
Montenegro freely chose to be exchanged.360
The Prosecution claims that the Trial Chamber was wrong not to take into account
the coercive environment in which the detainees in the KP Dom were held. By
analogy with the examination conducted in the Kunarac Appeals Judgement
of the issue of rape and sexual violence, the Prosecution claims that living
conditions in the KP Dom were such that genuine consent was impossible, and
the prisoners were not given any choice as to their destination.361
The Defence responded that for reasons beyond the Accused’s control, the Muslim
inhabitants of Foca had already abandoned the town, and it was therefore reasonable
for them to chose to go to Montenegro.362
- The Trial Chamber concluded that “this group of 35 men was displaced across
a national border to Montenegro. However, there is general evidence that the
detainees wanted to be exchanged, and that those selected for so-called exchanges
freely exercised their choice to go and did not have to be forced. The Trial
Chamber is not satisfied that the displacement of these individuals from Foca
necessarily involved in the choice they made was involuntary.”363
The Trial Chamber divided the acts alleged in the Indictment as expulsion
and deportation into three types: “transfer of detainees to other prison camps,
so-called exchanges and so-called work duty”.364
It found that the case of the 35 prisoners was one of “so-called exchanges”.365
In reaching this finding, the Trial Chamber relied on the testimony of six
witnesses which will be considered below.
- In the part of his testimony upon which the Trial Chamber relied, witness
FWS -54 stated:
Q. Were detainees taken out for exchanges while you
were there, before you were taken, actually?
A. They were taken out. All were taken out, in fact,
under the pretext of being taken away for exchanges. Perhaps they never
got there. Nobody was ever told that they were being taken out to be liquidated.
Everybody was taken out – I mean, these people would look very happy,
they would be pleased to be going to be exchanged, but…366
The Trial Chamber also relied on the statements of the following witnesses.
Witness FWS-65 stated:
A. Then, following the inmates’ list and knowing – and
since that policeman knew which inmates were in what room, they would
unlock the room and would call out the inmates in that particular room.
And he would say, “Get your affairs ready; you are off to be exchanged,”
on such occasions.
Q. When this would happen, did you want to be exchanged?
A. Well, it happened sometime during the day. And after
two or three such exchanges, I, since I had a heart condition, I would
always be excited, I would always get impatient. Oh, if only I could get
out, if only I could get out. Considering that if the policeman said “You
are off to be exchanged,” then to me it meant release, release from the
camp, and a crossing over, possibly, meeting – uniting with my family.367
Witness FWS-249:
Q. What happened to them? Were they also taken away
in a so-called exchange, or what?
A. They were all taken for an exchange. We were actually
looking forward to those exchanges, thinking that one day our turn would
come. However, there were very few actual exchanges, real exchanges. In
most cases, they were fatal.368
Witness FWS-109:
Q. Did you ever try to actually get exchanged yourself?
Because you said you were actually looking forward to this. Did you try
to get exchanged?
A. I tried, I begged. I also wrote a written application
[…] 369
Witness Rasim Taranin:
A. I mean all those groups that went out. They said
that they were all going out for an exchange, and we were all pleased,
and we all tried to get into these groups, to get into those exchanges.
And when I got out, my phone wouldn’t stop ringing. People kept asking
me where these people were. There were women calling me and asking about
their husbands and other people, and everybody was asking. The only thing
I could say was, “He went out for an exchange,” and see, they’re missing
until the present day.370
Witness RJ:
Q. When people were called out, did you know what happened
to them, whether they were exchanged or disappeared? Did you have access
to that information?
A. I never had access to such information nor did anyone
know what happened to people who would leave the KP Dom. We were as happy
as children when the policemen would come with lists. They would say such-and-such
is going, such-and-such a person is going, etc. There would be joy all
over. However, what happened then, what happened after the gate, I really
don’t know.371
- The Trial Chamber held that “there was general evidence” that the detainees
wanted to be exchanged. The Appeals Chamber examined the testimony on which
the Trial Chamber relied372 and found
that they were of a general nature and did not specifically refer to the 35
detainees in question. This testimony shows 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. However, the Appeals Chamber holds that this does not necessarily
imply that it was a matter of “genuine choice”. Yet it is the absence of genuine
choice that makes displacement unlawful. Similarly, 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.373
Consequently, when analyzing the evidence concerning these general expressions
of consent, it is necessary to put it into context and to take 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. Yet the Trial Chamber was content to consider
the testimony in isolation.
- However, the Trial Chamber also found in its Judgment that “[m]any of the
detainees were subjected to beatings and other forms of mistreatment”374
and that the persons detained in the KP Dom were unlawfully detained.375
- The testimony of FWS-54, one of the 35 detainees, illustrates the atmosphere
of fear and constraint that prevailed in the KP Dom. The Trial Chamber noted
that on 8 August 1992, about 20 days before being moved, “FWS-54 was beaten
by a KP Dom guard named Pilica Blagojevic as punishment for giving a fellow
detainee an extra slice of bread contrary to orders. As a result of the beating,
FWS-54 was seriously bruised and lost a few teeth. After the beating, he was
locked up in solitary confinement for three or four days.”376
Furthermore, relying on the testimony of FWS-54, the Trial Chamber found that
on five occasions in June or July 1992, detainees were called outside and
were severely beaten. Other detainees heard the cries and moans of the victims.377
- None of the detainees returned.378
Witness FWS-54 heard the sound of the beating dying down, and then heard gunshots
being fired and a vehicle leaving.379
The Trial Chamber considers that this episode must have increased FWS-54’s
fear.
- The Trial Chamber finds 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. This leads the Appeals Chamber
to conclude that the 35 detainees were under duress and that the Trial Chamber
erred in finding that they had freely chosen to be exchanged.
3. Discriminatory nature of the displacements
- The Prosecution claims that no Trial Chamber could reasonably have held
that there was no evidence that the displacement of the 35 detainees to Montenegro
had been committed on the requisite discriminatory ground.380
The Prosecution refers generally to its submissions in support of its fifth
ground of appeal381 and, in particular,
to the systematically abusive and discriminatory environment in which the
KP Dom detainees lived as a result of their ethnicity.382
- The Trial Chamber stated that “there is no direct evidence showing that
the displacement was committed on one of the listed discriminatory grounds.”383
The Appeals Chamber notes 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.384
However, the Appeals Chamber considers that, given the facts of the case,
there are circumstances surrounding the commission of the acts charged that
make it possible to infer that there was such an intent.
- The Trial Chamber reached the following conclusion:
The expulsion, exchange or deportation of non-Serbs,
both detainees at the KP Dom and those who had not been detained, was
the final stage of the Serb attack upon the non-Serb civilian population
in Foca municipality. Initially there was a military order preventing
citizens from leaving Foca. However, most of the non-Serb civilian population
was eventually forced to leave Foca. In May 1992, buses were organized
to take civilians out of town, and around 13 August 1992 the remaining
Muslims in Foca, mostly women and children, were taken away to Rozaje,
Montenegro. On 23 October 1992, a group of women and children from the
municipality, having been detained for a month at Partizan Sports Hall,
were deported by bus to Gorazde. […] In late 1994, the last remaining
Muslim detainees at the KP Dom were exchanged, marking the end of the
attack upon those civilians and the achievement of a Serbian region ethically
cleansed of Muslims. By the end of the war in 1995, Foca had become an
almost purely Serb town.385
- Given these conclusions, as well as the discriminatory character of unlawful
detention and the imposition of the living conditions386
described above on non-Serb KP Dom detainees, the Appeals Chamber considers
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.
- The Appeals Chamber holds that the reasoning with regard to the forcible
displacement of the 35 non-Serb detainees to Montenegro is applicable mutatis
mutandis to other displacements recognised by the Trial Chamber. The
same holds for Krnojelac’s discriminatory intent.
4. Krnojelac’s responsibility
- In its fourth sub-ground, the Prosecution submits that the Trial Chamber
erred in not holding Krnojelac responsible for the displacement of detainees
within Bosnia and Herzegovina, with which he was charged under count 1 (persecution),
and that the acquittal should be reversed. Furthermore, in its fifth sub-ground,
the Prosecution claims that the Trial Chamber erred in failing to find Krnojelac
criminally responsible, under Article 7(1) of the Statute, for the transfer
of 35 non-Serb detainees to Montenegro and of other non-Serb detainees to
other locations in Bosnia and Herzegovina.387
- The Appeals Chamber will examine both sub-grounds jointly. The Defence
claims that Krnojelac had no control over the displacements and that the list
of persons exchanged was compiled by the military authorities.388
The Prosecution argues that given that Krnojelac was aware of the existence
of a system for displacing and exchanging KP Dom detainees, he is liable as
a co-perpetrator in a joint criminal enterprise.389
Alternatively, the Prosecution claims that Krnojelac is liable as an aider
and abettor since he knew that detainees were forcibly removed on discriminatory
grounds.390
- The Appeals Chamber is convinced, beyond all reasonable doubt, that Krnojelac
is liable as a co-perpetrator in a joint criminal enterprise whose objective
was to persecute the KP Dom detainees by deporting and expelling them.
- The Appeals Chamber notes 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. However, Krnojelac is liable
for having participated in a joint criminal enterprise whose common objective,
which he shared, was to exchange non-Serb KP Dom prisoners. It is therefore
not necessary to prove that he personally participated in compiling the lists
of the exchanged non-Serbs prisoners. Krnojelac’s responsibility will therefore
be examined in relation to the first category of joint criminal enterprise.
Some of the participants in this joint criminal enterprise worked in the KP
Dom, whereas others, such as the military authorities, were outsiders.
- In the Judgment, it was noted that:
The Trial Chamber is satisfied that detainees were taken
out of the KP Dom on exchanges during the period relevant to the Indictment.
These exchanges generally followed a similar pattern. A KP Dom guard or
policeman would come from the gate to the detainees’ rooms to call out
the detainees for exchanges according to a list provided by the prison
administration. Those selected would then be taken out of the KP Dom.
On some occasions they would be beaten first, by KP Dom guards or military
personnel. While some of those exchanges were “bona-fide”,391
allowing detainees to reach territory controlled by Bosnian Muslims, many
detainees taken out for exchange simply disappeared. Witnesses confirmed
the fact that the ‘exchanged’ detainees had disappeared after they were
themselves released or exchanged, either through contact with the families
of those that had disappeared, through other former detainees years later,
or through attempts to get information from the ICRC about relatives.392
- In its Brief, the Prosecution does not dispute the Defence’s claim that
it was primarily the army that made decisions about “exchanges”.393
The Prosecution, referring to its Pre-Trial Brief, claims that it was the
KP Dom administration under the authority of Krnojelac that “executed the
decision” of the military authorities.394
The Prosecution claims in its Brief that “a guard inside the prisoners’ compound
[got] a piece of paper from a guard at the gate of the administrative building.
The guard inside the prisoners’ quarters would then go into the room to call
out the detainees for alleged exchanges.”395
- The Appeals Chamber is satisfied that the KP Dom administration executed
the orders of the military authorities and that the KP Dom guards turned over
detainees for transfer. However, it is not satisfied that Krnojelac was able
to influence the selection of detainees who were to be displaced. There is
evidence that Krnojelac tried, without success, to assist witness RJ who wanted
to be exchanged and that he believed he was assisting him to gain security
and rejoin his family.396 Moreover,
the Prosecution claims that Krnojelac “knew that the transport of detainees
was problematic and that he had reason to ensure the safety of the detainees
after they left the compound.”397 The
Appeals Chamber holds that Krnojelac did know the consequences of the transport
of detainees but did not play a role in it.
- However, Krnojelac bears individual criminal responsibility for the exchanges
which were part of the joint criminal enterprise in which he personally played
a role with the ultimate aim of forcibly displacing the detainees under his
control in the KP Dom. Even if he did not have control over a specific stage
of the operation, he accepted the final result of the enterprise. It is thus
not necessary to prove that he personally participated in compiling the lists.
The “exchanges” started during the summer of 1992 and continued at least until
March 1993.398 As stated above, the
Appeals Chamber is satisfied that non-Serb detainees were taken from the KP
Dom with discriminatory intent. According to his own testimony, Krnojelac
knew that the detainees were being removed from the KP Dom.399
Furthermore, the Trial Chamber established that, by virtue of his position
as prison warden, Krnojelac knew that non-Serb detainees were unlawfully detained
as a result of their ethnicity.400 As
warden, Krnojelac authorised the KP Dom personnel to turn over non-Serb detainees.
He supported such removals by allowing them to continue. Without illegal imprisonment,
it would not have been possible to continue carrying out exchanges. The Appeals
Chamber is satisfied that Krnojelac shared the intent of the principal perpetrators
in the joint criminal enterprise aimed at removing the non-Serb detainees
from the KP Dom.
- The Appeals Chamber finds that Krnojelac is responsible, as a co-perpetrator,
of persecution by way of forcible displacement which, as the Prosecution alleges,
took the form of “deportation” and “expulsion”.
- This ground of appeal is therefore upheld.
V. SENTENCE
- In the present case, both parties raised grounds of appeal relating to
the seven-and-a-half-year sentence imposed by the Trial Chamber.401
The Appeals Chamber has examined these various grounds of appeal by applying
the standard of review for alleged errors established in its case-law.402
It will however first briefly summarise the grounds of appeal.
- The Defence essentially argues that the Trial Chamber misdirected itself
as to the weight to attach to the aggravating and mitigating circumstances.
The Appeals Chamber dismisses this Defence ground of appeal principally for
the following reasons.
- The Defence submits that, in sentencing Krnojelac, the Trial Chamber did
not give serious consideration to his individual circumstances, namely his
advanced age, his four sons and nine grand-children, and the fact that two
of his sons are disabled ex-servicemen, that he has worked in the poorly paid
teaching profession all his life and that his harmonious marriage to a Croat
has lasted over 40 years.403 The Appeals
Chamber considers that, in this instance, there is no evidence to suggest
that the Trial Chamber failed to attach sufficient weight to the factors referred
to by the Defence. In any event, the Defence did not show that the Trial Chamber
had failed to do so. Furthermore, it should be noted that, in its analysis,
the Trial Chamber took into consideration two factors mentioned expressly
by the Defence, namely, Krnojelac’s teaching career and his age. Indeed, the
Trial Chamber stated that it had taken into account the fact “that, prior
to his appointment as warden at the KP Dom, the Accused was a person of good
character and that, since the termination of his appointment as warden of
the KP Dom, the Accused ShadC returned to his teaching profession without
any suggestion of further criminal conduct on his part.”404
As for age, the Trial Chamber pointed out that, in sentencing, it had noted:
“the fact that the Accused, Milorad Krnojelac, is now 62 years of age.”
- The Defence further contends that the Trial Chamber analysed the gravity
of the crimes committed incorrectly. The Appeals Chamber dismisses all of
Krnojelac’s main submissions summarised below.
- First, the Defence states that in determining the sentence to be imposed
upon an accused whose criminal responsibility is based upon the acts of others
- because the accused has been convicted as an aider and abettor or a superior
- the gravity of his criminal misconduct must be evaluated independently of
that of the crimes’ perpetrators. 405
Bearing in mind the relevant case-law,406
the Appeals Chamber sees no discernible error on the part of the Trial Chamber.
- Secondly, the Defence contends that the Trial Chamber did not properly
evaluate the gravity of the crimes in that it attached too little weight to
Krnojelac’s lack of experience as a prison warden and to his character – that
is to say, to the fact that he disliked confronting authorities. The Appeals
Chamber considers that there is no evidence to support the assertion that
the Trial Chamber erred by failing to take Krnojelac’s lack of experience
and character into account as mitigating circumstances. The Appeals Chamber
finds that the Defence failed to show that, in assessing the gravity of his
conduct as an aider and abettor to the acts of others, the Trial Chamber erred
by not considering those as mitigating factors but, instead, as grounds for
placing less weight on the aggravating feature of his position as warden than
it otherwise would have.407
- Thirdly, the Defence states that the Trial Chamber did not attach the proper
weight to the attitude of the witnesses and Muslim detainees towards Krnojelac
and that the gravity of his misconduct was best conveyed by the testimony
of witnesses such as FWS-144 and defence witness A. The Defence likewise submits
that the Trial Chamber placed insufficient weight upon his attempts to improve
the living conditions of the detainees.408
Here again, there is no evidence that the Trial Chamber failed to use its
discretion properly in sentencing Krnojelac in considering his attempts to
improve the detainees’ living conditions. The Appeals Chamber holds that the
Trial Chamber was entitled to find that Krnojelac’s attitude towards non-Serb
detainees could not constitute significant mitigating circumstances, bearing
in mind its overall assessment of the gravity of Krnojelac’s criminal conduct
as KP Dom warden over the course of 15 months.
- Fourthly, the Defence argues that the Trial Chamber failed to take into
account that the KP Dom was leased to the military, which limited Krnojelac's
authority within the KP Dom and brought about a change in the operation of
the facility. It also contends that he did not have the “strongly distinctive
authority that would allow him to encourage the chief perpetrators to commit
their acts”.409 The Appeals Chamber
takes the view that the Trial Chamber was entitled to find that Krnojelac’s
pre-eminent position within the prison aggravated, at the very least, the
aiding and abetting of cruel treatment and persecution of which he was guilty
with respect to the detainees. The Defence did not show how the Trial Chamber
abused its discretion.
- Fifthly, the Defence maintains that the Trial Chamber erred in stating
that Krnojelac “expressed no regret for the part he played in the commission
of these offences, and only insubstantial regret that the offences had taken
place.”410 The Appeals Chamber observes
that there is no evidence that the Trial Chamber regarded the lack of any
regret as an aggravating circumstance and increased the sentence accordingly.
The Appeals Chamber finds that, in noting that Krnojelac felt no remorse,
the Trial Chamber did nothing more than indicate that he could not benefit
from the mitigating circumstance of an accused's expression of remorse. As
for the Defence’s assertion that he expressed regret for the acts committed
by those who mistreated the detainees, the Appeals Chamber considers that
the Trial Chamber simply pointed out that Krnojelac’s insubstantial regret
could not be taken into account as significant mitigation.
- Turning to the Prosecution, it essentially submits that the Trial Chamber
erred both in imposing a sentence which reflected neither the gravity of the
offences nor the degree of Krnojelac's culpability and in mistakenly taking
certain factors into account.411 It
asks that the Appeals Chamber revise the sentence upwards.412
The Appeals Chamber dismisses all the Prosecution’s allegations. It has, however,
identified two errors made by the Trial Chamber. The first of these errors
does not require the Appeals Chamber to intervene. However, the second will
be taken into consideration when the Appeals Chamber determines the sentence
to be imposed in view of the new convictions.
- First, the Prosecution challenges 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.413
In paragraph 512 of the Judgment, the Trial Chamber stated as follows:
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. Consideration of the consequences of a crime
upon the victim who is directly injured by it is, however, always relevant
to the sentencing of the offender. Where such consequences are part of
the definition of the offence, they may not be considered as an aggravating
circumstance in imposing sentence, but the extent of the long-term physical,
psychological and emotional suffering of the immediate victims is relevant
to the gravity of the offences.414
- The Appeals Chamber states that the distinction between reparation and
punishment is well known. Without crossing the dividing line that separates
these two concepts,415 the case-law
of some domestic courts 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. The Appeals Chamber considers 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. In this instance, no consideration was given to the effect
of the crimes on these people. However, the Appeals Chamber believes that
the fact that the Trial Chamber did not take this into account had no major
impact on the sentence and that there is, therefore, no reason for changing
it. The Prosecution did not provide the Appeals Chamber with sufficient evidence
to enable it to assess the actual consequences of the crimes on the victims’
relatives.
- Secondly, the Prosecution challenges the weight which the Trial Chamber
allowed in mitigation of sentence to the co-operation provided to the Tribunal
and Prosecution by the Defence – and not by Krnojelac.416
The Prosecution argues that the efficient and co-operative conduct of defence
counsel cannot be a mitigating factor warranting a reduced sentence for
the accused any more than the inefficient or unco-operative conduct
of counsel may be considered an aggravating factor warranting an increased
sentence.417 In paragraph 520 of the
Judgment, the Trial Chamber stated:
Finally, the Trial Chamber has given 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. Counsel were careful not to compromise
their obligations to the Accused, but the restriction of the issues which
they raised to those issues which were genuinely in dispute enabled the
Trial Chamber to complete the trial in much less time than it would otherwise
have taken.418
- The Appeals Chamber finds that the conduct described in that paragraph
of the impugned Judgment is how any counsel should ordinarily behave before
a Trial Chamber. The Appeals Chamber therefore considers that the Trial Chamber
erred by giving credit to the Accused for his counsel’s conduct. In light
of this error, the Appeals Chamber concludes that, as already stated, the
conduct of counsel for Krnojelac must not be taken into account in deciding
the sentence to be imposed in respect of the new convictions on appeal.
- The Appeals Chamber will now decide the sentence in respect of the new
convictions on appeal. The Prosecution requests that if the Appeals Chamber
reverses one or more of the acquittals, the sentence be increased commensurately.419
It submits that it is possible for the Appeals Chamber to revise the sentence
itself rather than remit the matter to the Trial Chamber.420
Krnojelac does not challenge this and the Appeals Chamber accepts it.
- Having duly taken into consideration the gravity of the crimes and Krnojelac’s
responsibility as established by the Trial Chamber and having regard to Krnojelac’s
liability based on the new convictions on appeal, the Appeals Chamber concludes,
in the exercise of its discretion and in light of the mitigating and aggravating
circumstances, that the new sentence to be imposed must be a single sentence
of 15 years’ imprisonment.
VI. DISPOSITION
For the foregoing reasons, THE APPEALS CHAMBER,
PURSUANT to Article 25 of the Statute and Rules 117 and 118 of
the Rules;
NOTING the respective written submissions of the parties and the
arguments they presented at the hearing of 14 and 15 May 2003;
SITTING in open session;
ALLOWS the Prosecution’s first ground of appeal and SETS 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;
ALLOWS the Prosecution’s third ground of appeal and REVERSES
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 ;
ALLOWS the Prosecution’s fourth ground of appeal and REVERSES
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;
ALLOWS 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 encompasses a number of beatings ;421
ALLOWS the Prosecution’s sixth ground of appeal and REVERSES
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;
ALLOWS the Prosecution’s seventh ground of appeal and REVERSES
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;
DISMISSES the Prosecution’s second ground of appeal on the form
of the Indictment ;
DISMISSES all of Krnojelac’s grounds of appeal;
FINDS 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;
FINDS 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 for the following facts: paragraphs
5.21 (FWS-73), 5.23 (except for FWS-03),422
5.27 (Nurko Nisic and Zulfo Veiz), 5.28 and 5.29 (Aziz Sahinovic) of the
Indictment and the facts described under points B4, B14, B22, B31, B52 and
B57 of Schedule C of the Indictment;
FINDS 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;
REVISES Krnojelac’s conviction under count 1 of the Indictment
(persecution as a crime against humanity) pursuant to Article 7(3) so that
it encompasses the beatings described in paragraphs 5.9, 5.16, 5.18, 5.20,
5.21 (FWS-110, FWS-144, Muhamed Lisica and several other unidentified detainees),
5.27 (Salem Bico) and 5.29 (Vahida Dzemal, Enes Uzunovic and Elvedin Cedic)
of the Indictment and in the facts corresponding to numbers A2, A7, A10,
A12, B15, B17, B18, B19, B20, B21, B25, B26, B28, B30, B33, B34, B37, B45,
B46, B48, B51 and B59 of Schedule C of the Indictment;
FINDS 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;
SETS 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 the following facts: paragraphs 5.21
(FWS-73), 5.23, 5.27 (Nurko Nisic and Zulfo Veiz), 5.28 and 5.29 (Aziz Sahinovic)
of the Indictment and the facts described under points B4, B14, B22, B31,
B52 and B57 of Schedule C of the Indictment;423
DISMISSES the sentencing appeals entered by Krnojelac and the Prosecution
(with the exception of the sub-ground allowed in paragraph 262 of this Judgement)
and IMPOSES 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;
SENTENCES Krnojelac to 15 years’ imprisonment to run as of this
day, 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 the present day.
Done in French and English, the French text being authoritative.
Judges Schomburg and Shahabuddeen each append a Separate Opinion to this
Judgement.