VI. CRIMES UNDER ARTICLE 3 AND ARTICLE 5 OF THE STATUTE

A. Imprisonment

Count 11 of the Indictment charges imprisonment as a crime against humanity pursuant to Article 5(e) of the Statute for the acts alleged in par 5.35 to 5.38 of the Indictment. It is claimed that the KP Dom was used as a detention facility for male non-Serb civilians by Serb civilian and military authorities from April 1992 until October 1994 and that the Accused participated in implementing that imprisonment as the warden of the KP Dom from April 1992 until August 1993.

1. The law
The Charters of the Nuremberg and Tokyo Tribunals did not specify imprisonment as a crime, but it was defined as a crime against humanity in Article II(c) of Control Council Law No 10. The right of an individual not to be deprived of his or her liberty arbitrarily is also enshrined in a number of human rights instruments, both international³³² and regional.³³³ However, as these instruments show, this right does not constitute an “absolute right”, and it can be restricted by procedures established by law.
In the jurisprudence of the Tribunal, imprisonment as a crime against humanity has been considered on one occasion only.³³⁴ The Trial Chamber in the Kordic and Cerkez Judgment held that the elements of the crime of imprisonment under Article 5 of the Statute and those of the crime of unlawful confinement under Article 2 of the Statute are identical.³³⁵ It concluded that imprisonment should be understood as arbitrary imprisonment and defined this as “deprivation of liberty of the individual without due process of law”.³³⁶ Consequently, the Trial Chamber held that the imprisonment of civilians is unlawful where (1) civilians have been detained in contravention of Article 42 of Geneva Convention IV, that is, they are detained in the absence of reasonable grounds that the security of the detaining power makes it absolutely necessary; (2) the procedural safeguards required by Article 43 of the Geneva Convention IV are not complied with in respect of detained civilians, even where the initial detention may have been justified; and (3) they occur as part of a widespread or systematic attack directed against a civilian population.³³⁷
This Trial Chamber shares the view of the Trial Chamber in Kordic and Cerkez that imprisonment as a crime against humanity pursuant to Article 5 may be established when the criteria set out above are met. However, the Trial Chamber considers that, as a crime against humanity, the definition of imprisonment is not restricted by the grave breaches provisions of the Geneva Conventions. The Trial Chamber is thus not satisfied that imprisonment as a crime against humanity can only be established if the requirements of unlawful confinement pursuant to Article 2 are met.
The Trial Chamber is of the view that any form of arbitrary physical deprivation of liberty of an individual may constitute imprisonment under Article 5(e) as long as the other requirements of the crime are fulfilled.³³⁸ In the instant case, it is alleged that the victims were deprived of their liberty by being locked in cells at the KP Dom for substantial periods of time.³³⁹
For the purpose of Article 5(e), the deprivation of an individual’s liberty is arbitrary if it is imposed without due process of law. Relevant international instruments do not adopt a common approach to the issue of when a deprivation of liberty is or becomes arbitrary.³⁴⁰ The Universal Declaration of Human Rights states that “no one shall be subjected to arbitrary arrest, detention or exile”. There are no exceptions to this prohibition, although by definition any deprivation which is not arbitrary would be permissible.³⁴¹ The ICCPR allows a deprivation of one’s liberty only “on such grounds and in accordance with such procedure as are established by law”.³⁴² The Convention on the Rights of the Child provides that the arrest, detention or imprisonment of a child shall be “in conformity with the law”.³⁴³ The American Convention on Human Rights provides that a person shall only be deprived of his or her physical liberty “for the reasons and under conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto”.³⁴⁴ The European Convention on Human Rights identifies an exhaustive list of cases in which the deprivation of liberty “in accordance with a procedure prescribed by law” does not constitute a violation of the Convention.³⁴⁵
Having considered these instruments, the Trial Chamber is of the view that, under Article 5(e) of the Tribunal’s Statute, a deprivation of an individual’s liberty will be arbitrary and, therefore, unlawful if no legal basis can be called upon to justify the initial deprivation of liberty. If national law is relied upon as justification, the relevant provisions must not violate international law.³⁴⁶ In addition, the legal basis for the initial deprivation of liberty must apply throughout the period of imprisonment. If at any time the initial legal basis ceases to apply, the initially lawful deprivation of liberty may become unlawful at that time and be regarded as arbitrary imprisonment.
To establish the crime of imprisonment as a crime against humanity under Article 5(e) of the Tribunal’s Statute, the Trial Chamber accordingly finds that the following elements must be established in the circumstances of the present case:

1. An individual is deprived of his or her liberty.

2. The deprivation of liberty is imposed arbitrarily, that is, no legal basis can be invoked to justify the deprivation of liberty.³⁴⁷

3. The act or omission by which the individual is deprived of his or her physical liberty is performed by the accused or a person or persons for whom the accused bears criminal responsibility with the intent to deprive the individual arbitrarily of his or her physical liberty or in the reasonable knowledge that his act or omission is likely to cause arbitrary deprivation of physical liberty.

2. Findings: the imprisonment of non-Serb men at the KP Dom
The Trial Chamber is satisfied that, between 10 April 1992 and the beginning of June 1992, large-scale arrests of non-Serb civilian men, mostly of Muslim ethnicity, were carried out throughout Foca and its environs. Subsequent to their arrest, the men were transferred to the KP Dom.³⁴⁸
The Defence claimed that all Muslim men detained at the KP Dom were prisoners of war and that their detention was on that basis lawful.³⁴⁹ It supported this claim by emphasising that some of those detained were in possession of weapons at the time of their arrest.³⁵⁰ The Trial Chamber does not accept that this evidence creates a reasonable doubt as to the civilian status of most of the Muslim detainees held at the KP Dom. There was no suggestion that any except a small number of detainees had been combatants, with or without weapons. The type of weapons these persons were found in possession of, coupled with the explanations they gave as to why they were armed and the context in which they were arrested, clearly shows that they were not taken prisoner as combatants.³⁵¹ The Trial Chamber accepts, however, that, in addition to the mainly civilian population at the KP Dom, there were a small number of Muslim soldiers kept in isolation cells separately from the civilian Muslim detainees.³⁵²
The Trial Chamber is satisfied that non-Serb males from Foca and its environs were imprisoned indiscriminately. The only personal characteristic which featured in the decision to detain these men was their non-Serb ethnicity,³⁵³ the overwhelming majority of those detained being Muslim.³⁵⁴ The evidence establishes that no consideration was given to age, state of health or civilian status. The detainees ranged in age from 15 years to almost 80 years.³⁵⁵ There were many elderly persons among the detained, and there was a substantial group of ill, wounded, physically handicapped and mentally disturbed persons among the detained men.³⁵⁶
The Trial Chamber is satisfied that none of the non-Serb men was arrested on the basis of a valid arrest warrant. None of the detainees was shown an arrest warrant at the time of their initial detention or informed orally of the reason for their arrest.³⁵⁷ If they were told anything it was that they were required to accompany those carrying out the arrests for the purpose of giving a short statement and that, once that statement had been given, they would be free to go.³⁵⁸ After the initial arrest, however, they were detained at the KP Dom for periods ranging from four months³⁵⁹ to two and a half years.³⁶⁰ There they were kept incarcerated in rooms or in solitary confinement cells.
The Trial Chamber is satisfied that, once detained at the KP Dom, none of the detainees was informed of the reason for his detention, the term of his detention or of any possibility of release. Upon entry into the KP Dom, some of the detainees were searched and registered,³⁶¹ while others were not.³⁶² Similarly, interrogations of those detained were conducted sometimes within a few days or weeks,³⁶³ sometimes only after months ³⁶⁴ and, in some cases, never.³⁶⁵ 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.³⁶⁶ A number of detainees were threatened in the course of the interrogations, and others heard fellow detainees being mistreated in neighbouring rooms.³⁶⁷ Many of the detainees were forced to sign written statements.³⁶⁸ None of the detainees was released from the KP Dom following interrogation, notwithstanding the individual outcome of the interview.³⁶⁹
The Trial Chamber is satisfied that none of the detainees was ever actually charged, tried or convicted for any crime before being detained or while detained at the KP Dom.³⁷⁰ It is also satisfied that none of the detainees was ever advised of their procedural rights before or during their detention.³⁷¹
The Trial Chamber finds that the Muslims and other non-Serbs detained at the KP Dom were deprived of their liberty arbitrarily. The evidence has clearly established that there was no legal basis which could be relied upon to justify their deprivation of liberty under national or international law. Those detained were not criminals under suspicion of having committed a crime or ever accused of having committed a crime under national and/or international law. They were, inter alia, doctors and medical health workers, journalists, former KP Dom employees, managers, police officers and other persons of civilian status.
Although it may strictly be unnecessary in the circumstances of this case, the Trial Chamber is satisfied that there was no basis under Article 42 of the Geneva Convention IV which could be called upon to justify the deprivation of liberty of the non-Serb detainees as claimed by the Defence. A party seeking to rely upon Article 42 of the Geneva Convention IV must show with respect to each individual who has been deprived of his liberty reasonable grounds for concluding that that individual constituted a threat to the security of the depriving party. There was no consideration given to the individual circumstances of any of the non-Serb detainees by those carrying out the detentions.³⁷²
In conclusion, the Trial Chamber is satisfied that the deprivation of liberty of the non-Serb detainees at the KP Dom constituted imprisonment pursuant to Article 5(e) of the Statute. The Trial Chamber is also satisfied that the Accused, by virtue of his position as warden of the KP Dom, knew that the non-Serb detainees were being unlawfully detained.³⁷³ As already found by the Trial Chamber, the Accused admitted that he knew that the non-Serb detainees were detained because they were Muslim and that he knew that none of the procedures in place for legally detained persons was ever followed at the KP Dom.³⁷⁴

3. The responsibility of the Accused
The Prosecutor submitted that the Accused should be held responsible for “committing ” the crime of imprisonment under Article 7(1) of the Tribunal’s Statute pursuant to a joint criminal enterprise to effect the illegal imprisonment of the non-Serb detainees. In the Delalic Appeals Judgment, the Appeals Chamber discussed the meaning of the term “committed” with respect to the crime of unlawful confinement of civilians under Article 2 of the Statute. The Appeals Chamber held that, to establish that an individual has committed the offence of unlawful confinement, something more must be proved than mere knowing “participation” in a general system or operation pursuant to which civilians are confined. It held that:

Such responsibility is more properly allocated to those who are responsible for the detention in a more direct or complete sense, such as those who actually place an accused in detention without reasonable grounds to believe that he constitutes a security risk; or who, having some powers over the place of detention, accepts a civilian into detention without knowing that such grounds exist; or who, having power or authority to release detainees, fails to do so despite knowledge that no reasonable ground for their detention exist, or that any such reasons have ceased to exist. […] It is not necessary for present purposes for the Appeals Chamber to attempt an exhaustive definition of the circumstances which will establish that the offence is committed, but it suffices to observe that such liability is reserved for persons responsible in a more direct or complete sense for the civilian’s unlawful detention. ³⁷⁵
There is no evidence that the Accused in this case played any role in actually securing the detention of any of the non-Serb detainees in the KP Dom. It has also been accepted by the Trial Chamber that the Accused, as warden of the KP Dom, had no power unilaterally to release detainees.³⁷⁶ It is clear, however, that the Accused did hold the most senior position within the KP Dom and that he did allow civilians to be detained at the KP Dom knowing that their detention was unlawful. There is no evidence that the Accused ever refused to accept any of the civilian detainees brought to the KP Dom, nor on the other hand is there any evidence of what powers, if any, the Accused had to refuse acceptance of detainees at the KP Dom.³⁷⁷ Although the Trial Chamber has found that the Accused accepted the position of warden voluntarily, and that he could have refused or resigned from the position and chose not to do so, in all the circumstances, the Trial Chamber is not satisfied that the Prosecution has established that the Accused incurred criminal responsibility as a principal offender for the offence of imprisonment, as is required for a finding that the Accused “committed” the offence of imprisonment under Article 7(1).³⁷⁸
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. As to the Accused’s superior responsibility for illegal imprisonment of non-Serb detainees pursuant to Article 7(3), the most which could have been done by the Accused as a superior would have been to report the illegal conduct to the very persons who had ordered it.³⁷⁹ Accordingly, the Trial Chamber considers that it would not be appropriate to find him responsible as a superior.

B. Inhumane acts and cruel treatment
The Accused is charged under Counts 13 and 15 with inhumane acts as a crime against humanity pursuant to Article 5(i), and with cruel treatment as a violation of the laws or customs of war pursuant to Article 3. These charges refer to the alleged participation of the Accused in the implementation of brutal living conditions at the KP Dom while he was warden. The Prosecution claims that, as a result of these living conditions, many detainees identified in par 5.37 and Schedule D of the Indictment suffered serious physical and psychological consequences.

1. The law
As already stated, the general requirements with respect to Articles 3 and 5 of the Statute have been met.³⁸⁰
It is apparent from the jurisprudence of the Tribunal that cruel treatment, inhuman treatment and inhumane acts basically require proof of the same elements. Each offence functions as a residual category for serious charges under Articles 2, 3 and 5 respectively which are not otherwise enumerated under those Articles. The definitions adopted for each offence in the decisions of the Tribunal vary only by the expressions used.³⁸¹ The Trial Chamber therefore adopts the following definition for the offences of cruel treatment and inhumane acts as charged under Articles 3 and 5. The elements to be proved are: the occurrence of an act or omission of similar seriousness to the other enumerated crimes under the Article concerned;

1. the act or omission causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity; and

2. the act or omission is performed deliberately by the accused or a person or persons for whose acts or omissions he bears criminal responsibility.³⁸²
The assessment of the seriousness of an act or omission is, by its very nature, relative. All the factual circumstances must be taken into account, including the nature of the act or omission, the context in which it occurs, its duration and/or repetition, the physical, mental and moral effects of the act on the victim and the personal circumstances of the victim, including age, sex and health.³⁸³ The suffering inflicted by the act upon the victim does not need to be lasting so long as it is real and serious.³⁸⁴
The required mens rea is met where the principal offender, at the time of the act or omission, had the intention to inflict serious physical or mental suffering or to commit a serious attack on the human dignity of the victim, or where he knew that his act or omission was likely to cause serious physical or mental suffering or a serious attack upon human dignity and was reckless as to whether such suffering or attack would result from his act or omission.³⁸⁵

2. Findings
The Trial Chamber is satisfied that 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 (discussed below) 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 thus warrants a finding that those acts and omissions constitute inhumane acts and cruel treatment under those Articles.
The Trial Chamber is satisfied that there was a deliberate policy of isolating detainees within the KP Dom. Many of the detainees spent their entire detention locked in their rooms,³⁸⁶ and were only taken out to the canteen for meals while others kept in solitary confinement cells were not taken out at all, receiving their meals in their cells.³⁸⁷ Only those detainees given work assignments were permitted to spend prolonged periods outside of their rooms.³⁸⁸ Visits from family members were prohibited after May 1992.³⁸⁹ Television sets and radios which had been left at the KP Dom by former convicts were taken away, and rooms were searched for personal transistor radios which were seized.³⁹⁰ Access to recent newspapers or other press was prohibited.³⁹¹ Any form of information exchange and communication between detainees in different rooms and between detainees and guards was prohibited.³⁹² Detainees were not allowed to look out of the windows, although some did so.³⁹³ 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” spreading among the other detainees.³⁹⁴ To ensure compliance with these unwritten “rules” on communication, violations were punished with solitary confinement and/or mistreatment, such as beatings.³⁹⁵
The Trial Chamber is satisfied that the non-Serb detainees were deliberately housed in cramped conditions. 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.³⁹⁶ Solitary confinement cells designed to hold one person were packed with up to 18 people at a time,³⁹⁷ making it impossible for the detainees to move around the cell,³⁹⁸ or to sleep lying down.³⁹⁹
The Trial Chamber is satisfied that the policy of overcrowding the detainees was aggravated by the poor hygienic conditions. Bedding was insufficient or non -existent.⁴⁰⁰ The only bed linen provided was that left over from former convicts, and these items were never washed or changed throughout 1992.⁴⁰¹ While there were toilets and wash basins in the rooms, only cold water was available.⁴⁰² Regular baths or showers were not provided, nor were hygienic products or toiletries supplied.⁴⁰³ Changes of clothes or facilities for washing clothes were not supplied.⁴⁰⁴ As a result of these conditions, chicken lice spread from the prison farm to the rooms of the detainees.⁴⁰⁵
The Trial Chamber is satisfied that detainees were denied the most basic protection against freezing temperatures during the winter of 1992-1993.⁴⁰⁶ Most of the non-Serb detainees had been arrested in the early summer of 1992. Due to the information given to them in the course of arrest, namely, that they would be taken for an interview and returned to their homes the same day, they left in what they happened to be wearing at the time.⁴⁰⁷ As a result, they were inadequately clothed for winter conditions. The Trial Chamber accepts that the heating system at the KP Dom was broken and that there were some attempts made by the administration to repair it,⁴⁰⁸ but it is equally satisfied that no other available measures were taken to protect the non-Serb detainees from the cold.⁴⁰⁹ Stoves and furnaces had been produced to heat the offices in the administration building,⁴¹⁰ and there was sufficient raw material for such furnaces to have been produced for the non-Serb detainees.⁴¹¹ However, it was not until October 1993 that furnaces were finally provided to the non-Serb detainees, and then it was by the ICRC.⁴¹²
The Trial Chamber is further satisfied that 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. There were available stocks of additional blankets,⁴¹³ but they were not provided to all detainees.⁴¹⁴ Broken window panes in the detainees cells were not repaired or covered,⁴¹⁵ and open windows out of the reach of detainees were not closed.⁴¹⁶ Attempts made by some of the non-Serb detainees to make winter clothes out of blankets were punished.⁴¹⁷ The blankets were removed and those involved were sent to solitary confinement, where temperatures were lower.⁴¹⁸
The Trial Chamber accepts that there may have been a general shortage of food in the Foca region during the conflict,⁴¹⁹ but it is satisfied that there was a deliberate policy to feed the non-Serb detainees barely enough for their survival.⁴²⁰ All non-Serb detainees suffered considerable weight loss ranging from 20 to 40 kilograms during their detention at the KP Dom.⁴²¹ Their diet consisted of a cup of soup which was “little more than water”,⁴²² rice or macaroni and a piece of “really thin” bread three times a day.⁴²³ On occasion, they received a tin of pâté to be shared by two persons or eggs for breakfast.⁴²⁴ In contrast, Serb convicts and detainees received “regular army food”, not very appetising but nutritious enough to prevent serious weight loss.⁴²⁵ The contrast between the weight loss of non-Serb detainees and the Serb prisoners makes it apparent that non-Serb detainees were fed much less than the Serb detainees. The Trial Chamber is satisfied that the food for all detainees at the KP Dom was cooked in the same cauldron, but that nutritious ingredients, like meat, beans, vegetables and spices, were added to enrich only the meals of Serb detainees and convicts and KP Dom staff, who ate after the non-Serb detainees had received their meals from the cauldron.⁴²⁶ In making these findings, the Trial Chamber rejects the Defence evidence that all the detainees received the same quality and quantity of food while detained at the KP Dom.⁴²⁷
The Trial Chamber accepts that a basic medical service was provided to the non-Serb detainees. Gojko Jokanovic, a male nurse, was at the KP Dom on a daily basis and did whatever he could to help the non-Serb detainees.⁴²⁸ Doctors from Foca hospital also visited the KP Dom on a regular basis.⁴²⁹ The Trial Chamber also accepts that medicines may have been in short supply throughout Foca due to the war and therefore does not find that there was a deliberate policy of withholding available medical supplies from non-Serb detainees.⁴³⁰
The Trial Chamber is satisfied, however, that some of the non-Serb detainees were not provided with medical help which was available, and in particular that emergency cases were not handled with proper care.⁴³¹ 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,⁴³² nor were non-Serb detainees who were severely beaten during interrogations at the KP Dom. The injuries inflicted upon these non-Serb detainees were obviously in need of medical treatment.⁴³³ The Trial Chamber is further satisfied that detainees who were kept in isolation cells and solitary confinement were denied all access to medical care.⁴³⁴
The Trial Chamber is satisfied that, 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.⁴³⁵ Acts which resulted in beatings or periods in the isolation cells⁴³⁶ included efforts to get additional food,⁴³⁷ or access to warm water,⁴³⁸ and attempts to communicate with each other,⁴³⁹ the guards,⁴⁴⁰ or the outside world.⁴⁴¹
The Trial Chamber is also satisfied that the non-Serb detainees were subjected to harrowing psychological abuse during their period of detention at the KP Dom.⁴⁴² The detainees were exposed to the sounds of torture and beatings over a period of months, in particular in June and July 1992.⁴⁴³ They became nervous and panicky as a result of these sounds,⁴⁴⁴ and they could not sleep at night.⁴⁴⁵ They could not identify the criteria for the selection for beatings, and they constantly feared that they would be the next to be selected.⁴⁴⁶ Some wrote farewell letters to their family fearing they would not survive.⁴⁴⁷ Some witnessed family members being taken out and heard them being subjected to severe beatings.⁴⁴⁸
The Trial Chamber is satisfied that the physical and psychological health of many non-Serb detainees deteriorated or was destroyed as a result of the living conditions accepted as having existed at the KP Dom, and as charged under par 5. 37 and described in Schedule D to the Indictment. In making this finding, the Trial Chamber notes that there is no legal requirement that the suffering of a victim be lasting for the offences of cruel treatment or inhumane acts to be established. However, the Trial Chamber is satisfied that many of the non-Serb detainees continue to suffer lasting physical and psychological effects of their period of detention at the KP Dom. This factor supports the Trial Chamber’s finding that the acts and omissions found below were of a serious nature.
The Trial Chamber is satisfied that the substantial cause of the death of Enes Had‘ic in Spring 1992, charged under par 5.37 of the Indictment, was the failure to provide access to medical care. Enes Had‘ic suffered from a stomach ulcer, and his health deteriorated after he ran out of medicine while detained at the KP Dom.⁴⁴⁹ In June 1992, he started to bleed internally and began vomiting blood. The guards were unwilling to react. Instead of calling a doctor or immediately taking Enes Had‘ic to hospital, they threatened the detainees and remained inactive.⁴⁵⁰ Enes Had‘ic was not taken to the hospital until the next day, when he died.⁴⁵¹
The Trial Chamber is satisfied that the following victims identified in Schedule D to the Indictment suffered serious physical and psychological consequences as a result of the living conditions at the KP Dom:
Dr Amir Berberkic (D 1) was brought into the KP Dom on crutches from the hospital, while he was still undergoing treatment after having been wounded in the legs. His physical therapy was interrupted by his transfer to the KP Dom.⁴⁵² During his detention, he suffered various symptoms of malnutrition after his weight dropped from 87 kilograms on his arrival to 62 kilograms. His bones ached so much that he had difficulty sleeping, he suffered from vomiting spells and he found standing tiring. His eyesight weakened.⁴⁵³ When he was released from the KP Dom, he began to see a psychiatrist and was prescribed medication for post traumatic stress syndrome.⁴⁵⁴ Dr Berberkic still suffers from mental blocks and has anxiety attacks. He continues to experience flashbacks from the traumatic events experienced at the KP Dom.⁴⁵⁵
Edhem Bunda (D 2) was a mentally disturbed person with a habit of harming himself.⁴⁵⁶ One night, he found a razor which was used by some detainees to shave, and he used it to cut off part of his ear. He was taken to the male nurse and bandaged.⁴⁵⁷ The next evening, he got hold of the razor again and cut off all his fingernails. ⁴⁵⁸ He was so hungry that one morning he ate a hardboiled egg including the shell, and he would eat insects if he could catch them. Before he was detained, he used to wander in the forest around Tjentiste to ease his mind, but he could no longer control his actions at the KP Dom because of the strict detention and the severe hunger he suffered. ⁴⁵⁹ The guards were aware of the group of mentally handicapped detainees, but they did not take any positive action.⁴⁶⁰
FWS-66 (D 3) lost 31 kilograms while detained at the KP Dom. He could no longer stand on his feet, and he fainted several times.⁴⁶¹ After he had fainted three times, he received an infusion from the nurse Gojko Jovanovic.⁴⁶² He was a healthy man before he was detained at the KP Dom, but he now suffers from diabetes and has to consult doctors and hospitals often.⁴⁶³ He suffers from frequent nightmares and often awakes screaming.⁴⁶⁴
FWS-109 (D 5) lost 30 kilograms within a period of three months during his detention at the KP Dom.⁴⁶⁵ He now suffers from high blood pressure, and requires medical treatment. He suffers from frequent nightmares, and he is haunted by his experiences at the KP Dom.⁴⁶⁶
FWS-71 (D 6) lost between 24 to 28 kilograms while detained at the KP Dom.⁴⁶⁷ In November 1992, he contracted pneumonia due to his exposure to the freezing temperatures. In December 1992, his condition worsened when he was sent to an isolation cell as punishment for having made a heater to heat water.⁴⁶⁸ He was given medical treatment and received two injections of antibiotics and some paracetamol pills.⁴⁶⁹ He suffers from various health problems as a result of his detention. During periods of cold weather, his lungs ache and he suffers from rheumatism.⁴⁷⁰ He has frequent headaches, he cannot stand still for more than 15 minutes and he has difficulty walking for any length of time.⁴⁷¹ Upon his release from the KP Dom, he required constant psychiatric supervision for approximately one year. He still requires some psychiatric care,⁴⁷² and he continues to take medication. ⁴⁷³
Ejub Durmisevic (D 8) was approximately 75 years of age when he was detained in the KP Dom. He was frequently sent to a solitary confinement cell, which he shared with two other detainees.⁴⁷⁴ The cell was so small that the three of them had to sleep side by side. It was not possible for them to sleep on their backs.⁴⁷⁵ Durmisevic’s ear was badly injured and a blood vessel was exposed. He requested medical assistance, but it was denied while he was held in solitary confinement.
FWS-249 (D 9) suffered from extreme hunger and contracted pneumonia from his exposure to the cold while detained at the KP Dom.⁴⁷⁶ He still suffers from bad dreams and nightmares. He also suffers from chronic back problems. However, the Trial Chamber is not satisfied that his back problems are a direct consequence of the labour he performed while at the KP Dom or a result of the general living conditions. He had been engaged in exacting physical work as a mechanic for most of his life, and the reasonable possibility that his back problems were caused by his former work has not been excluded by the Prosecution to the satisfaction of the Trial Chamber.⁴⁷⁷
FWS-139 (D 11) lost 20 kilograms during his first three months of detention at the KP Dom.⁴⁷⁸ He suffered numerous health problems as a result of his exposure to the cold. His hands and ears became swollen, his skin cracked and bled and he suffered from chilblains. His mental health was also affected.⁴⁷⁹ Previously, he had worked as a guard at the KP Dom, and he found it particularly humiliating to find himself a prisoner.⁴⁸⁰
FWS-162 (D 12) lost 26 kilograms while detained at the KP Dom.⁴⁸¹ He continues to suffer from a nervous condition, and he is ill constantly.⁴⁸²
FWS-182 (D 13) suffered from an ulcer on the duodenum prior to his detention at the KP Dom. He had been on a restricted diet, which was not catered for during his detention. He was also denied the mental and psychological rest required for his condition. Within one month of his initial arrest and detention he was in a serious condition.⁴⁸³ In July 1992, he received medical assistance and was given an infusion and some pills.⁴⁸⁴ Nevertheless, his physical health continued to deteriorate and this impacted upon his mental well being. He was convinced that he was dying, and he became suicidal.⁴⁸⁵
RJ (D 14) had undergone a double bypass operation after a heart attack before he was brought to the KP Dom. He did not receive the necessary post-operative therapy, and his condition worsened during his detention.⁴⁸⁶ He suffered from constant hunger. On one occasion, he begged the Accused for food and was permitted to take some bread leftovers and some salt.⁴⁸⁷
FWS-111 (D 15) lost 20 kilograms during his detention. His eyesight deteriorated,⁴⁸⁸ and he believes that his constant exposure to the cold caused a slowing of his blood circulation.⁴⁸⁹ He has never recovered from his period in detention, his eyesight remains weak, and he becomes tired quickly.⁴⁹⁰ Prior to his detention he was able to work 12 to 16 hours a day, today he can only manage half of that time.⁴⁹¹ He suffers from chronic sleeplessness and is unable to sleep at all without medication.⁴⁹²
Omer Kunovac (D 17)⁴⁹³ was a deaf-mute person from Ustikolina who died after being subjected to beatings at the KP Dom.⁴⁹⁴ Kunovac suffered from terrible stomach pains and internal bleeding after a beating.⁴⁹⁵ Medically qualified non-Serb detainees discussed his condition with the guards and nurse Gojko Jokanovic. They recommended that he be urgently transferred to the hospital. They were told that this was out of the question,⁴⁹⁶ and Kunovac was forced to join the other detainees in the canteen. It was only after he collapsed in the canteen that he was permitted to have his meals brought to him in his room.⁴⁹⁷ He suffered chronic pain for three weeks until he died on 21 June 1993.⁴⁹⁸
FWS-144 (D 18) suffered from fear and hunger while detained at the KP Dom. He felt starved.⁴⁹⁹ He feared daily that he would be killed, and he was mentally tormented by hearing the screams of other detainees.⁵⁰⁰
D‘evad Lojo (D 19) lost more than 40 kilograms during his detention. At one point, he weighed a mere 48 kilograms.⁵⁰¹ Even after the food improved in the middle of 1993, he found it difficult to regain weight.⁵⁰² His constant exposure to the cold caused swelling of his joints, hands, wrists and ankles, and he suffered from regular bleeding.⁵⁰³
FWS-104 (D 20) lost approximately 40 kilograms while detained at the KP Dom.⁵⁰⁴ He was released in October 1992, and was then detained for a further ten days at Kalinovik police station. The food he received during that detention was of the same quality as that received at the KP Dom. He was finally exchanged on 9 November 1992.⁵⁰⁵ He then spent two and a half months in hospital.⁵⁰⁶ This hospital stay assisted his recovery from the substantial weight loss caused by his detention at the KP Dom.⁵⁰⁷ FWS-104 nevertheless continues to suffer psychological disturbances from his period of detention.⁵⁰⁸
FWS-215 (D 21) lost 33 kilograms in his first two months at the KP Dom.⁵⁰⁹ He became very sick when, in the winter of December 1992, he was placed in solitary confinement for a night for trying to procure hot water from the kitchen. He was ill for seven to eight days, and he managed to recuperate only with the help of two medically qualified detainees in his room.⁵¹⁰ He suffered emotional stress from his feelings of uncertainty, isolation and worry about the fate of his family.⁵¹¹
FWS-86 (D 22) lost approximately 30 kilograms during his detention at the KP Dom. He was so hungry that he still feels he will die of hunger for bread.⁵¹² One of the U‘ice reservists beat him upon his arrival at the KP Dom. As a result, his entire right side went stiff, and this condition deteriorated during his detention.⁵¹³ He was in good health prior to his detention, but he suffered a heart attack while at the KP Dom.⁵¹⁴ A few days after his heart attack, he was permitted to see the doctor. The delay was caused by the requirement that detainees make an application for a medical consultation.⁵¹⁵ The doctor confirmed that he had survived a heart attack and prescribed him Aspirin because nothing else was available. He was not taken to the hospital.⁵¹⁶ He also suffered from inflammation of the left jaw and from testicular inflammation.⁵¹⁷ FWS-86 still suffers from heart problems. He cannot walk much, gets tired easily and cannot bend forward. The poor diet caused some of his teeth to fall out. He has problems with his urinary tract.⁵¹⁸ He has received frequent treatment from a physiotherapist for his right side and, although there has been some improvement, he still has difficulty doing certain things.⁵¹⁹ After his release, he spent several months at the hospital and has returned several times since.⁵²⁰
Rasim Taranin (D 23) lost 18 to 19 kilograms while detained at the KP Dom.⁵²¹ His physical suffering was so severe that he found difficulty in describing it. He was often suicidal in the early days after his release, and he has received treatment for many years. He has since suffered a stroke but, in the absence of any medical evidence (even of a reliable hearsay nature), the Trial Chamber is not satisfied that the stroke was a result of the living conditions at the KP Dom.⁵²²
The Trial Chamber is not satisfied that the Prosecution has established that the detainees listed under D 4, D 7, D 10 and D 24 suffered the physical and/or psychological consequences alleged. The Prosecution conceded that no evidence had been adduced in proof of these incidents.⁵²³
The Trial Chamber is also not satisfied that the Prosecution has established that a substantial cause of the death of Sefko Kubat (D 16) was the living conditions at the KP Dom, nor that the events leading to his death occurred during the time when the Accused was the warden. Sefko Kubat suffered from an ulcer prior to his detention at the KP Dom. Once at the KP Dom he received medical assistance. He underwent surgery and remained at the hospital for a period of seven days following the surgery. He appeared to recover well and was healthy for eight months after the surgery, and then he collapsed. A doctor was called to assist and was told that Sefko Kubat was bleeding from the mouth. By the time the doctor arrived, Sefko Kubat was dead.
The Trial Chamber also heard evidence from many detainees who were not identified in Schedule D and who spoke of the effects upon them of their period of detention.⁵²⁴ The Prosecution did not give notice to the Accused that it was relying upon detainees not identified in Schedule D (or in the text of the Indictment) in support of these counts, and the Trial Chamber has not considered them in support of the charges.

3. The responsibility of the Accused
There is no evidence that the Accused 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 is nevertheless satisfied that the Accused had knowledge of the conditions under which the non-Serb detainees were being held and of the effects these conditions were having on the physical and psychological health of the non -Serb detainees.⁵²⁵ A number of detainees gave evidence that they met with the Accused and told him about their suffering.⁵²⁶ The Accused admitted that he habitually met with detainees, and he confirmed that, during these conversations, the detainees discussed the living conditions at the KP Dom.⁵²⁷
The Prosecution alleges that the Accused incurred criminal responsibility for the inhumane conditions as inhumane acts and cruel treatment imposed on the non- Serb detainees at the KP Dom as a participant in a joint criminal enterprise pursuant to Article 7(1) of the Statute. To establish the Accused’s responsibility on this basis, the Prosecution must establish that the Accused entered into an agreement with the guards of the KP Dom 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, including the Accused, shared the intent of this crime. The Trial Chamber is not satisfied that the Prosecution has established either that the Accused entered into such an agreement or that he had the intent to subject the non-Serb detainees to inhumane living conditions constituting inhumane acts and cruel treatment while he was warden of the KP Dom.
The Prosecution also alleges that the Accused incurred criminal responsibility for aiding and abetting the imposition of the inhumane conditions constituting inhumane acts and cruel treatment of the non-Serb detainees at the KP Dom pursuant to Article 7(1) of the Statute.⁵²⁸ To establish the Accused’s responsibility on this basis, the Prosecution must establish that he was aware of the intent of the principal offenders, guards and military authorities, and that he carried out acts which rendered a substantial contribution to the commission of the intended crime by the principal offenders. The Trial Chamber is satisfied that the Accused was aware of the intent of the principal offenders and that he was aware that his failure to take any action as warden in relation to this knowledge contributed 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. The Trial Chamber thus finds that the Accused incurred individual criminal responsibility pursuant to Article 7(1) of the Tribunal’s Statute by aiding and abetting the maintenance of living conditions at the KP Dom constituting inhumane acts and cruel treatment during the period in which he was warden.
The Trial Chamber is also satisfied that the Accused incurred criminal responsibility in his position as warden of the KP Dom for the acts and omissions of his subordinates, pursuant to Article 7(3) of the Tribunal’s Statute. The Trial Chamber is satisfied that the Accused was aware of the participation of his subordinates in the creation of living conditions at the KP Dom which constituted inhumane acts and cruel treatment, that he omitted to take any action to prevent his subordinates from maintaining these living conditions and that he failed to punish his subordinates for the implementation of these living conditions.
The Trial Chamber has established the criminal responsibility of the Accused pursuant to both Article 7(1) and Article 7(3). However, the Trial Chamber is of the view that it is inappropriate to convict under both heads of responsibility for the same count based on the same acts. Where the Prosecutor alleges both heads of responsibility within the one count, and the facts support a finding of responsibility under both heads of responsibility, the Trial Chamber has a discretion to chose which is the most appropriate head of responsibility under which to attach criminal responsibility to the Accused. This discretion has not been affected by the law as to cumulative convictions as stated by the majority of the Appeals Chamber in Delalic.⁵²⁹ In the circumstances before it, the Trial Chamber considers that the criminality of the Accused is better characterised as that of an aider and abettor to the principal offenders who imposed and maintained the inhumane living conditions constituting inhumane acts and cruel treatment of the non-Serb detainees at the KP Dom. Accordingly, the Trial Chamber will enter a conviction under Article 7(1) only, but it will take the Accused’s position as a superior into account as having aggravated his omission to take any action to prevent the continued maintenance of those conditions and that treatment.
C. Cruel treatment, inhumane acts and torture
The Accused is charged under Counts 5 and 7 of the Indictment with inhumane acts pursuant to Article 5(i) of the Statute, and with cruel treatment pursuant to Article 3 of the Statute and recognised by Article 3(1)(a) of the Geneva Conventions, in respect of several incidents of arbitrary beatings set out under par 5.4 to 5.29 of the Indictment. Pursuant to par 5.14 of the Indictment, additional incidents described in Schedule A are included in these charges. The Accused is further charged under Counts 2 and 4 with torture pursuant to both Article 3 and Article 5 of the Statute in respect of incidents of torture and beatings set out in par 5.17 to 5.29 of the Indictment.

1. The law
The general requirements under Article 3, as well as the requirements specific to the basis of the torture charge under Article 3, namely, common Article 3, are set out above.⁵³⁰ The Trial Chamber is satisfied that all those requirements have been met.⁵³¹ Likewise, the general requirements under Article 5 have been met in respect of both torture and inhumane acts.⁵³²
(a) Cruel treatment and inhumane acts
The law with regard to inhumane acts under Article 5(i) and cruel treatment under Article 3 of the Statute has already been stated in relation to Counts 13 and 15 of the Indictment (living conditions at the KP Dom).⁵³³ It is important to emphasize that the mere description of the assaults as “beatings ” does not by itself establish that the assaults constituted “cruel treatment ” or “inhumane acts” pursuant to those Articles.
(b) Torture
The general requirements with respect to Articles 3 and 5 of the Statute have been met.⁵³⁴
The definition of the offence of torture is the same regardless of the Article of the Statute under which the acts of the Accused have been charged.⁵³⁵
The definition of the crime of torture charged pursuant to the Tribunal’s Statute comprises the following elements:⁵³⁶

1. the infliction, by act or omission, of severe pain or suffering, whether physical or mental.

2. the act or omission must be deliberate.

3. the act or omission must have occurred in order to obtain information or a confession, or to punish, intimidate or coerce the victim or a third person, or to discriminate, on any ground, against the victim or a third person.
“Torture” constitutes one of the most serious attacks upon a person’s mental or physical integrity. The purpose and the seriousness of the attack upon the victim sets torture apart from other forms of mistreatment.⁵³⁷ Torture as a criminal offence is not a gratuitous act of violence; it aims, through the infliction of severe mental or physical pain, to attain a certain result or purpose. Thus, in the absence of such purpose or goal, even very severe infliction of pain would not qualify as torture pursuant to Article 3 or Article 5 of the Tribunal’s Statute.
The expression “severe pain or suffering” conveys the idea that only acts of substantial gravity may be considered to be torture.⁵³⁸ Neither interrogation by itself, nor minor contempt for the physical integrity of the victim, satisfies this requirement. Mistreatment which does not rise to the threshold level of severity necessary to be characterised as torture may nevertheless constitute another less serious offence.⁵³⁹ In attempting to define an offence or to determine whether any of the elements of that definition has been met, the Trial Chamber is mindful of the specificity of international humanitarian law.⁵⁴⁰ Care must be taken to ensure that this specificity is not lost by broadening each of the crimes over which the Tribunal has jurisdiction to the extent that the same facts come to constitute all or most of those crimes. In particular, when relying upon human rights law relating to torture, the Trial Chamber must take into account the structural differences which exist between that body of law and international humanitarian law, in particular the distinct role and function attributed to states and individuals in each regime.⁵⁴¹ However, this does not preclude recourse to human rights law in respect of those aspects which are common to both regimes. In that respect, the Trial Chamber regards the general reasoning and criteria used by the European Court of Human Rights in order to assess the gravity of the act of torture, as well as its relationship with other less serious offences, as sufficiently compelling as to warrant adopting it in the present case.
The prohibition against torture applies at all times.⁵⁴² When assessing the seriousness of the acts charged as torture, the Trial Chamber must take into account all the circumstances of the case, including the nature and context of the infliction of pain, the premeditation and institutionalisation of the ill-treatment, the physical condition of the victim, the manner and method used, and the position of inferiority of the victim. In particular, to the extent that an individual has been mistreated over a prolonged period of time, or that he or she has been subjected to repeated or various forms of mistreatment, the severity of the acts should be assessed as a whole to the extent that it can be shown that this lasting period or the repetition of acts are inter-related, follow a pattern or are directed towards the same prohibited goal.⁵⁴³
Solitary confinement is not, in and of itself, a form of torture. However, in view of its strictness, its duration, and the object pursued, solitary confinement could cause great physical or mental suffering of the sort envisaged by this offence.⁵⁴⁴ To the extent that the confinement of the victim can be shown to pursue one of the prohibited purposes of torture and to have caused the victim severe pain or suffering, the act of putting or keeping someone in solitary confinement may amount to torture. The same is true of the deliberate deprivation of sufficient food.⁵⁴⁵
The act of torture must have been committed deliberately,⁵⁴⁶ and for one of the prohibited purposes mentioned in the above definition. This does not necessarily mean that the purpose in question must be illegitimate. Several listed purposes, in particular obtaining information or a confession, may be perfectly legitimate on condition that appropriate methods are used to achieve them. Nor does the act need to have been committed exclusively for one of the prohibited purposes. It must simply be part of the motivation behind the conduct, and it need not be the predominant or sole purpose.⁵⁴⁷
The Trial Chamber is satisfied that the following relevant purposes have become part of customary international law: obtaining information or a confession; punishing, intimidating or coercing the victim or a third person; or discriminating, on any ground, against the victim or a third person.⁵⁴⁸
The Trial Chamber is of the opinion that, although other purposes may come to be regarded as prohibited under the torture provision in due course, they have not as yet reached customary status. In particular, the purpose to “humiliate” the victim, mentioned in Furundzija and more recently in Kvocka,⁵⁴⁹ is not expressly mentioned in any of the principal international instruments prohibiting torture.⁵⁵⁰ Nor is there a clear jurisprudential disposition towards its recognition as an illegitimate purpose. There may be a tendency, particularly in the field of human rights, towards the enlargement of the list of prohibited purposes, but the Trial Chamber must apply customary international humanitarian law as it finds it to have been at the time when the crimes charged were alleged to have been committed. In light of the principle of legality, the proposition that “the primary purpose of ?humanitarian lawg is to safeguard human dignity”⁵⁵¹ is not sufficient to permit the court to introduce, as part of the mens rea, a new and additional prohibited purpose, which would in effect enlarge the scope of the criminal prohibition against torture beyond what it was at the time relevant to the indictment under consideration.
Under international humanitarian law in general, and under Articles 3 and 5 of the Statute in particular, the presence or involvement of a state official or of any other authority-wielding person in the process of torture is not necessary for the offence to be regarded as “torture”.⁵⁵²
The infliction of severe pain in pursuance of a given prohibited purpose must be established beyond reasonable doubt and cannot be presumed.

2. Findings
(a) Cruel treatment and inhumane acts (par 5.4 to 5.16)

(i) Beatings upon arrival in the prison yard (par 5.4 to 5.6)
The Trial Chamber is not satisfied that the incidents charged respectively in par 5.4 and 5.6 of the Indictment have been established. The Prosecution conceded that this is so.⁵⁵³
The Prosecutor has alleged in par 5.5 that FWS-71 was beaten, kicked and hit with rifle butts by soldiers when he arrived at the KP Dom in a group of 21 detainees on 25 May 1992.
The Trial Chamber is satisfied that, on that date, FWS-71 was transported from the police station in Herceg-Novi to the KP Dom in a group of 21 detainees.⁵⁵⁴ On arrival, these men were met by a group of about ten individuals in uniforms.⁵⁵⁵ These soldiers started beating the Muslim detainees one by one as they were getting off the bus. The soldiers lined them up against the wall of the KP Dom and struck each one with a rifle butt.⁵⁵⁶ During the beatings, the soldiers used expletives and offensive language.⁵⁵⁷ FWS-71 was kicked and hit a number of times by several soldiers during this incident. His mistreatment resulted in a bruise on his right shoulder which was clearly visible for between five and ten days. He also had pain around the rib cage and in the shoulder area.⁵⁵⁸ Slavko Koroman, Zoran Mijovic and Milenko Elecic of the regular KP Dom prison guard staff were present at the entrance to the KP Dom building, right next to where the detainees were lined up, when the incident occurred.⁵⁵⁹ These guards did not react at all while the detainees were being beaten.⁵⁶⁰
The Trial Chamber has been unable to determine, in respect of this incident, whether the beating took place inside the KP Dom or just outside the entrance of the prison.⁵⁶¹ The Prosecution did not seek to make a case that the Accused bore any responsibility for beatings which took place outside of the KP Dom, nor is there any evidence to that effect.⁵⁶² The benefit of this doubt must favour the Accused, and the Trial Chamber accordingly is not satisfied that this incident may be taken into account in the present case.

(ii) Beatings associated with the canteen (par 5.7 to 5.16)
Par 5.7 of the Indictment alleges that detainees at the KP Dom were assaulted on their way to or from the canteen by guards of the KP Dom and soldiers from outside the KP Dom between May and December 1992.
The Trial Chamber is satisfied that individuals or groups of armed soldiers were allowed into the KP Dom compound during the first months of the non-Serb civilians’ detention. It was not unusual for detainees to be beaten by guards of the KP Dom or soldiers from outside the KP Dom while lining up for lunch in the compound or while being taken back and forth through the compound.⁵⁶³ However, the Trial Chamber is not satisfied that the incidents referred to in the evidence are different from those which are expressly identified in the paragraphs of the Indictment which follow par 5.7. There also remains some uncertainty as to the gravity of the acts described in the evidence, and there is also some confusion as to whether these acts took place at the time when the Accused was the warden.⁵⁶⁴ The Trial Chamber is therefore not satisfied that these incidents have been established as separate incidents of sufficient gravity.
Par 5.8 of the Indictment alleges that, on an unknown date in August 1992, a group of seven or eight unidentified military policemen entered the KP Dom, approached detainees who were coming back from the mess and started beating them in the presence of several unidentified KP Dom guards, who stood by passively. The Prosecution conceded during the trial, and in its final submissions, that par 5.8 and par 5.13 of the Indictment refer to the same incident twice.⁵⁶⁵ The Trial Chamber therefore considers these two paragraphs as a single allegation, and makes one set of findings with respect thereto.
The Trial Chamber is satisfied that, sometime in October 1992,⁵⁶⁶ and while lining up, FWS-71 and fellow detainees were approached by five armed policemen who began to beat them for about half an hour before ordering them to lie down on the ground.⁵⁶⁷ Mitar Rasevic, the Commander of the Guards of the KP Dom, as well as the guards who had escorted them, stood by and watched without interfering. Defence witness Krsto Krnojelac, the cook at the KP Dom, testified that this incident had not even involved “real slapping ” on their part.⁵⁶⁸ Even if the Trial Chamber disregards Krsto Krnojelac’s evidence on that point,⁵⁶⁹ there is no indication of the level of gravity of the treatment inflicted upon FWS -71 and the other detainees, and there is no other evidence from which a conclusion as to the level of gravity involved could be drawn. The Trial Chamber is therefore not satisfied that this allegation has been established as charged.
Par 5.9 alleges that the disabled detainee Edhem Gradisic, who also suffered from epilepsy, complained about the small food rations and, as a result, was beaten and kicked by three unidentified KP Dom guards.
The Trial Chamber is satisfied that this incident has been established. The incident took place sometime during the summer of 1992,⁵⁷⁰ while detainees were lining up for food. One of the KP Dom guards, Dragomir Obrenovic, beat Gradisic so hard that he fell across the canteen. While he was lying there on his stomach, two other KP Dom guards named Perisic and Kunarac took him by his feet and dragged him out of the canteen, down the rickety stairs into the yard, and then to an isolation cell.⁵⁷¹ The Trial Chamber is satisfied that the treatment meted out to Gradisic amounted to cruel treatment pursuant to Article 3 and inhumane acts pursuant to Article 5 (i) of the Statute.
Par 5.10 alleges that in July 1992 a detainee with the nickname “Pace ” was beaten by KP Dom guard Pedrag Stevanovic while he was lining up in front of the canteen.
The Trial Chamber is satisfied that, sometime in August 1992,⁵⁷² KP Dom guard Predrag Stefanovic told detainee Nihad Pasovic, nicknamed “Pace” and “Paco”, not to carry his tray in only one hand while lining up for lunch in the canteen.⁵⁷³ He then ordered him to step out of line and started slapping him and kicked his ankles.⁵⁷⁴ A group of other KP Dom guards was sitting close by but did not intervene.⁵⁷⁵ The Trial Chamber is not satisfied that this mistreatment is serious enough to amount to cruel treatment pursuant to Article 3 or inhumane acts pursuant to Article 5( i).
Par 5.11 alleges that unidentified soldiers from outside the KP Dom approached FWS-137 on several occasions between April and December 1992 while on his way to or from the canteen in a group, and assaulted him and other detainees while KP Dom guards watched without interfering.
The Trial Chamber is satisfied that, on one occasion in April 1992, FWS-137 received one or two blows from soldiers in the compound when he was coming back from breakfast.⁵⁷⁶ The guards of the KP Dom intervened and attempted to separate the detainees and soldiers.⁵⁷⁷ The treatment of FWS-137, although no doubt painful, does not reach the level of severity required by either offence charged under that paragraph of the Indictment.
Par 5.12 alleges that, sometime at the end of October or beginning of November 1992, Dr Amir Berberkic and D‘evad S Lojo were assaulted on their way from the canteen by unidentified soldiers from Nevisenje in the presence of KP Dom guards.
The Trial Chamber is satisfied that, on or around 30 October 1992, soldiers with automatic rifles assaulted detainees in the kitchen and forced them to bend their heads. Those who did not bend their head low enough or quickly enough were hit.⁵⁷⁸ Berberkic received several blows which did not lead to any serious injuries but which resulted in pain above his right ear and which was later accompanied by swelling and bruises.⁵⁷⁹ Lojo was hit as well, but there is no indication of the nature and severity of the beating.⁵⁸⁰ The KP Dom guards who were present appeared to be frightened and did not intervene.⁵⁸¹ The treatment of both Berberkic and Lojo does not reach the required level of severity implicit in the offence of cruel treatment pursuant to Article 3 or inhumane acts pursuant to Article 5(i).
Par 5.14 alleges that, during their confinement, detainees were subjected to sudden arbitrary beatings by guards of the KP Dom or soldiers from outside the KP Dom. This usually took place during the evenings. KP Dom guards are alleged to have led soldiers to various cells to select detainees for beatings, as described in par 5.15, 5.16 and in Schedule A to the indictment. These are dealt with separately below.
Par 5.15 alleges that Dzemo Balic (Z.B.) was beaten severely by a Serb soldier from outside the KP Dom on 10 June 1992 and that he was thereafter locked up in solitary confinement for about a month. It is further alleged that Balic became deaf as a result of the beatings.
The Trial Chamber is satisfied that par 5.15 has been established.⁵⁸² Dzemo Balic was called out once in June or July 1992, while the detainees were lining up for lunch, and taken to the administration building gate.⁵⁸³ After the detainees returned to room 18, they heard Balic’s screams and the sounds of beating from the area of the gate.⁵⁸⁴ The sounds came from the former visitor’s room in the administration building.⁵⁸⁵ When Balic was brought back into his room a month later, he looked badly beaten and his face was yellow.⁵⁸⁶ Balic told his roommates that he had been beaten badly by KP Dom guard Cicmil in the administration building before being taken to a solitary confinement cell; as a result, he said, he was deaf in one ear and he had pain in his ribs.⁵⁸⁷ KP Dom guard Milenko Burilo was present when the beating took place, but he did not participate.⁵⁸⁸ The Trial Chamber is satisfied that the treatment of Dzemo Balic amounted to cruel treatment pursuant to Article 3 and inhumane acts pursuant to Article 5(i) of the Statute.
Par 5.16 alleges that, on 11 July 1992, two KP Dom guards took FWS-71 to the solitary confinement cells and beat him with various objects for about 20 minutes until he fainted. FWS-71 allegedly suffered bruises all over his body.
The Trial Chamber is satisfied that this incident has been established. On 11 July 1992, FWS-71 was taken out of room 11 and was beaten for about 15 minutes by KP Dom guards Dragan Obrenovic and Zoran Matovic in the corridor in front of room 11.⁵⁸⁹ He was kicked in the chest, around the kidneys, and once slapped in the face. The guards were armed with semi-automatic rifles at the time, but it has not been established that they used them or any other object to beat FWS-71. Nor has it been established that FWS-71 fainted in the course of the beating. He started feeling pain in his lungs and above the right kidney from the beatings after a couple of days, which he said then lasted for about 10 to 15 days.⁵⁹⁰ The Trial Chamber is satisfied that the treatment of FWS-71 is serious enough as to amount to cruel treatment pursuant to Article 3 as well as inhumane acts pursuant to Article 5(i) of the Statute.

(iii) Beatings in Schedule A
In addition to the beatings dealt with above, the Prosecution also charged the Accused with a number of incidents described in Schedule A.⁵⁹¹ The Trial Chamber notes that incidents A 3, A 5, A 6 and A 9 have also been charged under specific paragraphs of the Indictment, namely under par 5.23 (A 3 and A 6) and par 5.20 (A 5 and A 9 ). These incidents will therefore be considered below when these specific paragraphs of the Indictment are addressed.
The Trial Chamber either considers that there is insufficient evidence as to the level of pain inflicted upon several of the victims listed in Schedule A, or is not satisfied that the mistreatment in question established was serious enough to conclude that inhumane acts pursuant to Article 5(i) or cruel treatment pursuant to Article 3 have been committed against those individuals. This is true of the following incidents: A 1⁵⁹², A 4,⁵⁹³ and A 11.⁵⁹⁴
It has not been established that the incidents A 8 and A 13 occurred while the Accused was the warden of the KP Dom.⁵⁹⁵
The Trial Chamber is satisfied that incident A 2 has been established. On two or three occasions in May 1992,⁵⁹⁶ Muharem Causevic was taken out of room 15 and beaten.⁵⁹⁷ One witness observed the marks of blows and bruises which he bore on various parts of his body as he returned from the beatings.⁵⁹⁸ In view of the repetition of the mistreatment and its consequences upon the victim, the Trial Chamber is satisfied that the mistreatment is serious enough to be regarded as cruel treatment pursuant to Article 3 and inhumane acts pursuant to Article 5 (i).
The allegations contained under A 7 have been established. Ahmet Duric was kept with fifteen other persons in an isolation cell for three or four days after they had been brought to the KP Dom.⁵⁹⁹ At night, around 22 or 23 April 1992, persons in uniforms and army trousers came to the cell with torches.⁶⁰⁰ The detainees were told to look straight into the torches which the soldiers aimed directly into their eyes. Those who could not keep their eyes open or who averted their eyes from the light were hit. Duric was kicked so hard in the head that a fellow detainee testified that his face was all blue and a huge blister had formed by the following morning.⁶⁰¹ The Trial Chamber is satisfied that the treatment inflicted upon Duric is sufficiently serious as to amount to cruel treatment pursuant to Article 3 and inhumane acts pursuant to Article 5(i).
The Trial Chamber is satisfied that the allegations involving Kemo Kajgana (A 10) and Fikret Kovacevic (A 12) have been established. Fikret Kovacevic was taken out of the isolation cell, where he was being held together with Ahmet Duric (A 7), Ahmet Hadzimusic and Kemo Kajgana, and was beaten. Hadzimusic was in the room adjacent to where the beatings occurred and did not see but could hear the beatings taking place.⁶⁰² At some point, the persons administering the beatings took the detainee Kajgana out of the cell and told him that his neighbour Kovacevic was asking for him. They instructed Kajgana to beat Kovacevic with the baton. Since Kajgana beat his fellow detainee only very gently, the baton was taken away from him and he was beaten himself to demonstrate how to administer real blows. Next, the baton was handed to Kovacevic who was also forced to beat Kajgana.⁶⁰³ The Trial Chamber is satisfied that the mistreatment inflicted upon both victims, Kajgana and Kovacevic, is sufficiently serious as to amount to cruel treatment pursuant to Article 3 and inhumane acts pursuant to Article 5(i).
(b) Torture, cruel treatment and inhumane acts (par 5.17 to 5.29)

(i) Torture and beatings as punishment (par 5.17 to 5.21)
As a preliminary matter, the Trial Chamber notes that not every incident pleaded in the Indictment amounts to a serious violation of international humanitarian law, and that, whilst surrounding circumstances must be taken into account, not every alleged incident of torture in the instant case has been established. In this first section, it is alleged that severe pain was inflicted for the prohibited purpose of punishing the victims.
Par 5.17 of the Indictment alleges that the Accused, in concert with other high-level prison staff, ordered guards of the KP Dom to beat detainees for even minor violations of the prison rules, as described in the following paragraphs of the Indictment. There is no evidence before the Trial Chamber that the Accused ordered guards to beat detainees. There is a great deal of evidence, however, that detainees were in fact systematically beaten and mistreated while detained at the KP Dom.⁶⁰⁴
Par 5.18 of the Indictment alleges that, on 8 August 1992, FWS-54, a Muslim detainee, was beaten and kicked as punishment for giving an additional slice of bread to a fellow detainee contrary to orders and was subsequently kept in solitary confinement for four days.
The Trial Chamber is satisfied that, on 8 August 1992, 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.⁶⁰⁵ After the beating, he was locked up in solitary confinement for three or four days.⁶⁰⁶ Despite the degree of seriousness of the physical abuse, the condition of the victim prior to his beating and isolation, the consequences of the beating upon the victim and the fact that punishment was meted out for a minor breach of the prison regulations, the Trial Chamber is not satisfied that the acts in question should be regarded as torture pursuant to the definition given above. Although the losing of teeth and the bruising of the body constitute a serious infringement upon the victim’s well-being, they do not, in the circumstances of this case, reach the degree of severity implicit in the definition of torture. Torture is among the most serious abuses upon physical or mental integrity.⁶⁰⁷ Further, and crucially, in case of doubt as to whether or not the act is serious enough to amount to torture, the Accused should have the benefit of that doubt, and the acts for which he is charged should be considered under the heading of the less serious offence, namely cruel treatment under Article 3 or inhumane acts under Article 5(i).
In the present instance, the Trial Chamber is satisfied that the allegations contained in par 5.18 have been established and that they amount to cruel treatment pursuant to Article 3 of the Statute as well as inhumane acts pursuant to Article 5(i) of the Statute.
Par 5.19 of the Indictment alleges that, on an unknown date during the summer of 1992, detainees Avdo Muratovic, Fahrudin Malkic, HT and Sacic were beaten by a KP Dom guard named Dragomir Obrenovic as punishment for passing messages to one another.
The Trial Chamber is satisfied that the factual allegations contained in par 5.19 of the Indictment have been established, but in respect of three of the mentioned detainees only. Sometime in June of 1992, three detainees – Sacic, Avdo Muratovic and Fahrudin Malkic – were taken away and slapped as a punishment by two KP Dom guards named Obrenovic and Elcic for passing messages to one another contrary to orders.⁶⁰⁸ The Trial Chamber is not satisfied that the mistreatment inflicted upon them should be regarded as torture pursuant to the definition of this crime, which requires that “severe pain or suffering ” be inflicted.⁶⁰⁹ Nor is the mistreatment serious enough to amount to cruel treatment pursuant to Article 3 or inhumane acts pursuant to Article 5. With respect to HT there is no evidence that he was taken and mistreated in the manner and for the reason described in the Indictment. This was conceded by the Prosecution. ⁶¹⁰
Par 5.20 alleges that, on an unknown date in April or May 1993, at approximately 6.00 am, KP Dom guards Dragomir Obrenovic and Zoran Matovic called out four detainees – FWS-71, Dzevad Cosovic, II⁶¹¹ and DC – from their rooms and led them to the solitary confinement cells. In the corridor, the guards beat the detainees as punishment for stealing bread from the canteen the previous day.
The Trial Chamber is satisfied that the factual allegations contained in par 5.20 of the Indictment have been established. Sometime in October 1992, four detainees were taken, two by two, to the isolation cells and beaten on their way by two KP Dom guards, Zoran Matovic and Dragan Obrenovic, as punishment for stealing food.⁶¹² FWS-71 and Dzevad Cosovic were seen stealing two loaves of bread from the bakery. The next day, Zoran Matovic and Dragan Obrenovic came to look for them in their room and took them to the isolation cells. On the way, they kicked and punched them for more than half an hour.⁶¹³ They were then put in isolation cells where they stayed for 11 to 12 days. Two other detainees, II and DC, were treated in a similar manner, taken out of their room for stealing food, beaten and then put in isolation cells.⁶¹⁴ There is no indication as to the severity of their mistreatment other than the duration of the beating and the fact that they were bruised and FWS-71 had difficulty breathing afterwards. Nor is there evidence that the beating and subsequent isolation were to be regarded as particularly serious for any other reason. Additionally, whereas FWS-71 and Dzevad Cosovic spent about 11-12 days in isolation, it appears that II and DC were released from the isolation cells on the very day they had been put there.⁶¹⁵ Accordingly, in light of all the circumstances and because the Accused must be given the benefit of the doubt, the Trial Chamber concludes that the treatment and pain inflicted upon each of the four detainees, including their confinement in isolation cells, although serious, was not severe enough to amount to torture pursuant to the definition of that offence.
The Trial Chamber is satisfied, however, that the mistreatment inflicted upon FWS-71, Dzevad Cosovic, II and DC does amount to inhumane acts under Article 5(i ) as well as cruel treatment under Article 3 of the Statute.
Par 5.21 of the Indictment alleges that, in June, July or August 1993, following the unsuccessful escape of Ekrem Zekovic, the Accused and his subordinates subjected detainees to collective punishment by cutting food rations by half for at least 10 days. In addition, FWS-73, FWS-110, FWS-144, Muhamed Lisica and approximately 10 other detainees, all work companions of Ekrem Zekovic at the time when he tried to escape, were beaten by about 10 members of the KP Dom prison staff in the presence of the Accused. As further punishment, FWS-73, FWS-110, FWS-144, Muhamed Lisica and other unidentified detainees were locked in solitary confinement for various periods lasting up to 15 days.
The Trial Chamber notes that the Indictment does not allege, even in general terms, that Ekrem Zekovic was beaten in the course of that incident. As mentioned above, par 5.17 of the Indictment generally alleges that the Accused, in concert with other high-level prison staff, ordered KP Dom guards to beat detainees even for minor violations of the prison rules.⁶¹⁶ This general allegation is, however, expressly limited to the allegations made in par 5.18 through 5.21, and these paragraphs make no reference to Ekrem Zekovic himself being beaten.⁶¹⁷
The Appeals Chamber recently stated that, where an indictment which does not plead with sufficient detail the essential aspect of the Prosecution case, the defect could, in some instances, 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”.⁶¹⁸ In that case, there was an allegation of extreme generality in the indictment under which the case ultimately put by the Prosecution could have been particularised, but was not.⁶¹⁹ Indeed, it is clear that the case ultimately put had not been within the contemplation of the Prosecution at the time the indictment was filed.⁶²⁰ The Prosecution did not reveal to the Defence the nature of the case it ultimately presented until a very short time before the relevant evidence was led.⁶²¹ The Appeals Chamber held that the right of the Accused in that case to prepare their defence had been infringed, and allowed their appeal against conviction on that ground.⁶²²
The Trial Chamber interprets the Judgment of the Appeals Chamber as requiring there to be at least a general allegation in the indictment under which a specific incident subsequently established in the evidence could have been particularised, plus sufficient warning that such a specific case is to be put to enable the accused to prepare a defence. In the course of the present trial, for example, a great deal of evidence was led by the Prosecution relating to what is alleged to have been deportation, as an incident of the persecution charged in Count 1. The Defence accepted that they had been sufficiently forewarned that such a case was to be put, in part by the Prosecution Pre-Trial Brief but mainly by the witness statements which had been served. There was, however, no allegation in the Indictment which covered such a case, even in general terms. When this was pointed out to the Prosecution, an application to include such an allegation in the Indictment was granted by consent.⁶²³ No such application was made in relation to the beating of Ekrem Zekovic.
Accordingly, and 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.
Because of the significance of this event generally to other issues in the case, however, the Trial Chamber exceptionally records that it is satisfied that, on 8 July 1993, Ekrem Zekovic, a Muslim detainee, tried to escape from the KP Dom, but was re-captured the same day.⁶²⁴ As soon as he was brought back to the KP Dom, Zekovic was severely beaten by Milenko Burilo, a guard of the KP Dom.⁶²⁵ While he was being beaten, the Accused intervened to stop it.⁶²⁶ As they were walking away from the scene, Burilo continued to assault Zekovic in the presence of the Accused.⁶²⁷ The Accused denied that he saw Zekovic being beaten.⁶²⁸ The Trial Chamber does not accept the denial of the Accused on that point, nor does his evidence cause the Trial Chamber to have any reasonable doubt that the Zekovic was telling the truth. Zekovic was subsequently put in an isolation cell and then taken out at some point and beaten again with bare hands and with a chain by deputy warden Savo Todovic, in the presence of Boro Ivanovic.⁶²⁹ The Accused met with him and they had a conversation about his attempted escape.⁶³⁰ Zekovic was then returned to the cell and his hands and legs were tied to the floor with a metal ring. The next day, barely able to walk,⁶³¹ he was taken to the courtyard where detainees had been assembled. He was then returned to the isolation cell where he spent 28 days. Seven days of that time were spent on the concrete cell floor, handcuffed at all times except for two occasions when he was taken out to be beaten again by the KP Dom guards on duty.⁶³²
The Trial Chamber is satisfied that the treatment meted out to Zekovic amounted to torture pursuant to Article 5(f) and Article 3 of the Statute, but (as already stated) will not take the evidence into account in relation to counts 2, 4, 5 and 7 of the Indictment.⁶³³
The Trial Chamber is satisfied that, in the presence of the Accused,⁶³⁴ detainees were told by Todovic that, because of Zekovic’s escape, all food rations would be halved,⁶³⁵ and that work and medical treatment would be forbidden.⁶³⁶ This punishment actually lasted for at least ten days.⁶³⁷ 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.⁶³⁸ The Accused denied having been aware of any punishment inflicted as a result of Zekovic’s escape.⁶³⁹ 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.⁶⁴⁰ Furthermore, a group of detainees, including some of those who had been beaten, were locked in solitary confinement for varying periods of time.⁶⁴¹ FWS-73 stayed in an isolation cell for 12 days.⁶⁴²
The Trial Chamber is satisfied that those 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.
In view of the seriousness of the treatment inflicted upon FWS-73, the Trial Chamber is satisfied that this treatment amounted to torture within the meaning of the definition given above. The Trial Chamber has also taken into account the fact that, following those beatings, FWS-73 was not given any medical treatment but was instead returned to the isolation cells where he was left lying on the floor with just one blanket to be shared between two detainees. Food rations, which were already largely insufficient, were halved.
In respect of FWS-110, FWS-144, Muhamed Lisica and the other unidentified detainees referred to in paragraph 5.21 of the Indictment, the Trial Chamber is not satisfied that the beating and other mistreatment which they suffered demonstrates a sufficient degree of gravity as to amount to torture.⁶⁴³ However, the combined effect of solitary confinement for a short period of time, the intentional deprivation of necessary food for several days, resulting from the halving of already minimal quantities of food, and the beatings which were meted out to some of them were in combination sufficient to reach the level of suffering required by the definition of inhumane acts under Article 5(i) as well as cruel treatment under Article 3 of the Statute.

(ii) Torture and beatings during interrogations (par 5.22 to 5.29)
Par 5.22 of the Indictment alleges that local and military police, in concert with the prison authorities, interrogated the detainees after their arrival at the KP Dom. It is further alleged that the Accused, in concert with other high -level prison staff, established a pattern whereby guards of the KP Dom would take the detainees out of their cells and bring them to the interrogation rooms where they would be beaten by guards or the police, as described in par 5.23 through 5.25 of the Indictment. It is alleged that the interrogations focused on whether the detainee was an SDA member, possessed weapons, or had fought against the Serb forces. It is also alleged that the Accused aided and abetted these beatings by granting local and military police access to the detainees and encouraging and approving the actions of his guards.
The Trial Chamber is satisfied that detainees were regularly taken out of their rooms or from the isolation cells by 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.⁶⁴⁴
Par 5.23 of the Indictment alleges that, on 24 May 1992, military police arrested FWS-03 and Halim Dedovic, both members of the SDA, and their neighbor Hajro Sabanovic and took them to the KP Dom. On that same day, the Indictment alleges, they were interrogated by five or six military policemen who beat all three of them in order to force them to make confessions.
The Trial Chamber is satisfied that, on 24 May 1992, the day of his arrival at the KP Dom, FWS-03 heard the screams and laments of Halim Dedovic, a fellow Muslim detainee.⁶⁴⁵ Shortly thereafter, military policemen brought Hajro Sabanovic down the same hallway from where Dedovic’s screams had been coming.⁶⁴⁶ FWS- 03 could then hear Sabanovic’s screams and moans. FWS-03 himself was then taken out. When he entered the room down the hallway, Sabanovic was lying on the floor covered in his own blood, unable to speak.⁶⁴⁷ The policemen put FWS-03 against the wall and spread his legs and arms apart. They started questioning him about military activity and the SDA and began to beat him when he denied having taken part in any military activities. FWS-03 was hit on the back, around the kidneys, halfway down his back, and on his arms with an unidentified object.⁶⁴⁸ The policemen brought in Dedovic, who bore the marks of beatings and who confirmed that FWS-03 was an SDA activist. The policemen turned to beat Dedovic again all over his body, and threw water over Sabanovic who regained consciousness only to be beaten again until he lost consciousness.⁶⁴⁹ FWS-03 and Halim Dedovic were then locked up together and denied medical treatment. FWS -03 described Dedovic’s face as bloody and swollen, with his eyes so swollen that he could barely see. He also had lacerations on the right side of his face.⁶⁵⁰ FWS-03’s body was also swollen and bruised from heavy blows. For approximately seven to ten days, he continued to feel strong pain in the areas where he had been beaten.⁶⁵¹ When FWS-03 was taken out of the cell the next morning, the KP Dom guard Burilo struck two severe blows on his neck.⁶⁵² Dedovic was brought back to his room, extremely frightened and bruised, after having spent seven days in the basement of the administrative building where he had been beaten repeatedly.⁶⁵³
The Trial Chamber is satisfied that, when beating FWS-03 and Dedovic, the military police were trying to obtain information or confessions from them concerning SDA activities and membership, and that they were also punishing them for such activities or membership. To constitute the offence of torture, the prohibited purpose for which the acts of mistreatment are committed need not be the exclusive purpose or the predominant or sole purpose.⁶⁵⁴ It is sufficient that the prohibited purpose is one of the results sought to be achieved. Accordingly, the Trial Chamber is satisfied that the prohibited purpose has been established in this case. The Trial Chamber is also satisfied that the treatment meted out to FWS-03 and Halim Dedovic satisfies the severity threshold required by the offence of torture.
In respect of Harjo Sabanovic, there is no direct evidence that the military police were trying to attain one of the prohibited purposes listed in the definition of torture. FWS-03 specifically said that he had not heard any questioning going on or discussion between Sabanovic and the men beating him when he entered the room.⁶⁵⁵ The Trial Chamber, however, infers from the almost identical treatment inflicted upon the other two individuals taken with him to be interrogated at the same time that he too was beaten in order to obtain information or a confession from him. The Trial Chamber is satisfied that this is the only reasonable inference to be drawn. Further, the Trial Chamber is satisfied that the abuse of Sabanovic reached the level of severity required by the definition of torture. The Trial Chamber is therefore satisfied that the elements of torture pursuant to Article 5(f) and Article 3 of the Statute have been established in respect of Harjo Sabanovic, Halim Dedovic and FWS-03.
Par 5.24 of the Indictment alleges that, on several unknown dates between April and August 1992, unidentified KP Dom guards severely beat Hasim Glusac and that, due to these beatings and the brutal living conditions, his lungs were severely damaged.
The Trial Chamber is not satisfied that the events alleged in par 5.24 of the Indictment have been established. Although it has been established that Hasim Glusac was in poor health and that he did not receive proper medical treatment for his condition, there is no evidence that he was beaten at any time, or that he suffered severe pain as a result of any beating as is alleged in the Indictment. The Prosecution conceded that this incident had not been established.⁶⁵⁶
Par 5.25 alleges that, on an unknown date in May or June 1992, KP Dom guards severely beat Ibrahim Sandal during an interrogation, and that they returned him to his cell seriously injured.
The Trial Chamber is satisfied that, sometime during the second half of August 1992, Ibrahim Sandal was brought to the KP Dom. He had been beaten up severely on the way to the KP Dom, as a result of which he suffered serious injuries and health problems. There is no evidence that he was beaten or otherwise mistreated in any way while at the KP Dom, let alone in the manner described in par 5.25.⁶⁵⁷ In view of the absence of any clear evidence, the Trial Chamber is not satisfied that Ibrahim Sandal was subjected to any form of mistreatment as charged in par 5.25 of the Indictment.
Par 5.26 of the Indictment alleges that, from April until July 1992, the Accused, in concert with political leaders and military commanders and other high-level staff, prepared lists of detainees to be beaten during night time interrogations and established a daily routine for these beatings. Most evenings during this time, it is alleged, the lists were delivered to the KP Dom guards who then took the detainees to the administration building for additional interrogations and beatings by unidentified KP Dom guards or soldiers whom the Accused had allowed to enter the prison to beat detainees. This general allegation contained in par 5.26 is limited to those incidents further described in par 5.27 through 5.29 and the attached Schedule B to the Indictment.⁶⁵⁸
The Trial Chamber is satisfied that, as alleged in par 5.26, from April 1992 until July 1992 beatings took place on a frequent and systematic basis.⁶⁵⁹ KP Dom guards used lists in order to select those detainees to be taken out to the administrative building and beaten there.⁶⁶⁰ Some of the detainees were taken out and beaten on several occasions. There is no evidence however that, as alleged, the Accused drafted those lists according to which detainees were selected and called out, or that he participated in any joint criminal enterprise to do so.
Par 5.27 of the Indictment alleges that, in June 1992, KP Dom guards on at least two occasions severely beat Nurko Nisic, Zulfo Veiz, Salem Bico and Krunoslav Marinovic.
The Trial Chamber is satisfied that, in June or July 1992,⁶⁶¹ Nurko Nisic, Zulfo Veiz and Salem Bico were severely beaten by guards of the KP Dom, or by policemen from outside the KP Dom, who had been allowed by the guards to enter the KP Dom. Nisic was taken out to be beaten on at least two occasions while he was at the KP Dom.⁶⁶² Several inmates saw the bruises on his face and body.⁶⁶³ Sometime in June or July 1992, he was taken from his room and his screams and the provocative remarks of those beating him were heard by other detainees.⁶⁶⁴ He was never seen again after that. The Trial Chamber is satisfied that, when beating him, the KP Dom guards or policemen from outside the KP Dom, intended to obtain from him a confession that he was somehow involved in military activities, or information to that effect.⁶⁶⁵ They may also have intended to punish him because they considered that his alleged military activities were somehow connected with the injury of a Serb soldier named or nicknamed “Bota”.⁶⁶⁶ The Trial Chamber is not satisfied, however, that such an intention has been established beyond reasonable doubt. Nisic was beaten extremely severely.⁶⁶⁷ Despite his frailty due to mal-nourishment and mistreatment, he was given no medical assistance and he could not walk for several days following the beatings.⁶⁶⁸ The Trial Chamber is satisfied that the mental and physical pain inflicted upon Nisic by the guards of the KP Dom or policemen for the prohibited purpose which has been accepted amounted to torture within the meaning of Article 3 and Article 5(f) of the Statute.
Turning to Zulfo Veiz, the Trial Chamber is also satisfied that the allegations contained in par 5.27 of the Indictment have been established. While detained at the KP Dom, Veiz was repeatedly taken out and beaten.⁶⁶⁹ One of the KP Dom guards or policemen from outside the KP Dom taking part in one of the beatings was heard asking him about the whereabouts of weapons.⁶⁷⁰ Once, when coming back from interrogation, Veiz had bruises on his face and his right eye was almost completely closed.⁶⁷¹ One day in June or July 1992, he was taken out and screams, moans and shots were heard, after which he did not return.⁶⁷² The Trial Chamber is satisfied that, in view in particular of the repetition of the abuses, their severity and consequences, as well as the aim of the interrogators to obtain information as to the whereabouts of weapons, the mistreatment inflicted upon Zulfo Veiz in June or July 1992 amounted to torture within the meaning of Article 3 and Article 5(f) of the Statute.
The Trial Chamber is satisfied that, while he was detained at the KP Dom, Salem Bico, another Muslim detainee, was taken out and beaten by guards of the KP Dom, or policemen from outside the KP Dom, on repeated occasions.⁶⁷³ Like Zulfo Veiz, he was taken out of his room sometime in June or July 1992, and he never came back.⁶⁷⁴ Screams and moans and finally shots were heard coming from the administrative building on the night he was taken.⁶⁷⁵ Although the Trial Chamber is satisfied that the beatings were of a very severe nature,⁶⁷⁶ there is no evidence that the beating was pursued for any of the listed prohibited purposes rather than being purely arbitrary. Consequently, the Trial Chamber is not satisfied that the mistreatment of Salem Bico amounted to torture pursuant to Article 3 and Article 5(f) of the Statute. The abuse was, however, of such a nature as to qualify as inhumane acts under Article 5(i) as well as cruel treatment under Article 3 of the Statute, and the Trial Chamber is accordingly satisfied that all the elements of those two offences have been established.
The Trial Chamber is not satisfied that Krunoslav Marinovic, a Croat detainee, was beaten while at the KP Dom and then returned to his room, as opposed to being beaten before he arrived at the KP Dom.⁶⁷⁷ Most witnesses refer to injuries which he had sustained before he was brought to the KP Dom; some of the witnesses also referred to an incident which took place just before he disappeared, that is, on an occasion when he was taken from his room and never returned. This latter incident has not been charged under par 5.27 of the Indictment.⁶⁷⁸ Ekrem Zekovic stated that Marinovic had been beaten several times.⁶⁷⁹ Even if that evidence is accepted, it is still unclear whether this refers to beatings which took place prior to his detention at the KP Dom or during that detention. As there remains a doubt on that point, the Trial Chamber is not satisfied that the allegations contained in par 5.27 concerning Krunoslav Marinovic have been established.
Par 5.28 of the Indictment alleges that KP Dom guards tortured and beat Salko Mandzo, having mistaken him for another detainee. While he was being beaten, the Indictment alleges, the Accused appeared and, discovering the mistake, ordered the guards to stop beating him.
The Trial Chamber is satisfied that, on an unknown date in the summer of 1992 but before the month of July, Salko Mandzo was mistaken for another detainee, interrogated and seriously beaten; he was hit with a bat, and cut on the face with a knife.⁶⁸⁰ Salko Mandzo lost consciousness as a result of a blow he received on his head. The fact that the KP Dom guards were mistaken about the identity of the victim does not detract from the conclusion that, when inflicting such severe physical pain, the guards did so with the intention of obtaining either a confession or information from him or the person they believed him to be.⁶⁸¹ One Prosecution witness testified that Savo Todovic and the Accused walked in during the beating and said that they had been mistaken about the identity of the victim.⁶⁸² The Accused denied witnessing such a beating or making a comment as to the identity of the victim.⁶⁸³ The evidence of the Accused on that point causes the Trial Chamber to have sufficient doubt as to its accuracy as to reject the evidence, which was hearsay only. The Trial Chamber is satisfied by the extreme severity of the abuse effected upon Mandzo’s physical integrity that the treatment amounted to torture pursuant to the definition of this offence under Article 3 and Article 5(f) of the Statute.
Par 5.29 of the Indictment alleges that, between May and July 1992, on at least two occasions KP Dom guards and military policemen tortured and beat the detainees Vahida Dzemal, Enes Uzunovic, Aziz Sahinovic and Elvedin Cedic, who were severely injured as a result. After the beatings, the victims were kept in solitary confinement for several days.
The Trial Chamber is satisfied that, in the course of the summer 1992 prior to the month of July, Vahida Dzemal, Enes Uzunovic, Aziz Sahinovic and Elvedin Cedic were severely beaten by guards of the KP Dom and military policemen, and that they were then kept in solitary confinement for several days.⁶⁸⁴ However, apart from Aziz Sahinovic who was interrogated in relation to allegations of misappropriation of money,⁶⁸⁵ there is no evidence before the Trial Chamber concerning any prohibited purpose being pursued by those individuals who beat those four detainees as alleged. It is suggested by the Prosecution that the other victims were being interrogated during or shortly after the beating took place. There is, however, no evidence to that effect in respect of these victims other than Aziz Sahinovic, and the Trial Chamber is therefore not satisfied that the acts in question constituted torture pursuant to Article 3 or Article 5(f) of the Statute.
The Trial Chamber is satisfied that the treatment meted out to Aziz Sahinovic amounts to torture pursuant to Article 3 and Article 5(f) of the Statute. The Trial Chamber is also satisfied that the mistreatment inflicted upon Vahida Dzemal, Enes Uzunovic, and Elvedin Cedic constituted inhumane acts under Article 5(i) and cruel treatment under Article 3 of the Statute as defined above.

(iii) Torture and beatings in Schedule B⁶⁸⁶
The Prosecution concedes that insufficient evidence was adduced to establish the incidents alleged in B 1, B 6, B 9, B 10, B 12 , B 16, B 27, B 29, B 38 and B 42. The Trial Chamber accordingly makes no finding with respect to these incidents.
The first of the remaining incidents is incident B 2. This alleges that, one evening in June or July 1992, Nedzib Babalija was beaten by guards of the KP Dom and/or soldiers including military police on the ground floor of the administration building. Two witnesses, Ekrem Zekovic and FWS-69, testified that Babalija bore the marks of beating.⁶⁸⁷ Babalija told Zekovic that he had been severely beaten before he was brought to the KP Dom and that he had been beaten again while at the KP Dom.⁶⁸⁸ FWS-69 stated that he did not know whether Babalija was beaten at the KP Dom, but he thought that he had not been.⁶⁸⁹ There is no evidence of the seriousness of the beating which allegedly took place at the KP Dom, nor of the date at which the beating allegedly occurred. In those circumstances, the Trial Chamber is not satisfied that the pleaded incident has been established.
Incident B 3 alleges that, one evening between 26 June and 14 July 1992, Serif Balic was beaten by guards of the KP Dom and/or soldiers including military police on the ground floor of the administration building. The Trial Chamber is not satisfied that this incident has been established. One witness testified that Serif Balic and his son were taken to the administration and never returned.⁶⁹⁰ While this witness also heard the sound of people being beaten after they had been taken to the administration building, it is unclear whether this evidence refers to Serif Balic and his son.⁶⁹¹
Concerning incident B 4, the Trial Chamber is satisfied that, sometime in May or June 1992, D‘emo Balic was taken to an isolation cell where he stayed for about 20 days. During that period, he was repeatedly and severely beaten and mistreated while being asked to draw up lists of SDA members and lists of people who possessed weapons.⁶⁹² When he was eventually brought back to his room, Balic had apparent bruises under his eyes and could not talk to anyone for days.⁶⁹³ The Trial Chamber is satisfied that the allegations made under B 4 have been established and that the acts in question both took place with the prohibited purpose of obtaining information and are serious enough as to amount to torture pursuant to Article 3 and Article 5(f) of the Statute.⁶⁹⁴
The Trial Chamber notes that the beating of Hamed “Salem” Bico mentioned under incident B 5 also forms the basis of par 5.27 of the Indictment. The Trial Chamber has already concluded that the mistreatment meted out to him on that occasion amounted to inhumane acts pursuant to Article 5(i) and cruel treatment pursuant to Article 3 of the Statute,⁶⁹⁵ but (in the absence of any evidence of a prohibited purpose) that it did not amount to torture. No additional finding is therefore required in respect of that incident.
Incident B 7 alleges that, sometime before the end of June 1992, Abdurahman Cankusic was beaten on the ground floor of the administration building by unidentified guards of the KP Dom and/or soldiers including military policemen. The Trial Chamber is satisfied that, sometime in June 1992,⁶⁹⁶ Cankusic was taken out of his room with a group of detainees and never returned.⁶⁹⁷ There is no evidence that he was beaten in the course of his disappearance. Although he was taken in the period and in a manner similar to the pattern described below in paragraph 273, in the absence of any indication that he or those with whom he was taken with on that occasion were beaten, the Trial Chamber is not satisfied that this is the only reasonable inference available. The Trial Chamber is therefore not satisfied that this incident has been established.
Incident B 8 alleges that, one evening after 7.00 pm between May and October 1992, Uzeir Cankusic was beaten by KP Dom guards Milenko Burilo and Dragomir Obrenovic and other unidentified individuals on the ground floor of the administration building. The Trial Chamber is satisfied that, on 16 or 17 April 1992, Cankusic and Ibro Selimovic were brought to the hospital.⁶⁹⁸ When he arrived, Cankusic had been injured on the shoulder by a firearm.⁶⁹⁹ Shortly thereafter, both men were taken away and found dead the next day.⁷⁰⁰ There is no indication, however, that they had been beaten or otherwise tortured while at the KP Dom.⁷⁰¹ The Trial Chamber is not satisfied that the incident charged in the Schedule has been established.
Incident B 11 alleges that, sometime between June and mid-July 1992 after lunch or dinner, Zaim Cedic was beaten by KP Dom guards Milenko Burilo, Dragomir Obrenovic and other unidentified individuals on the ground floor of the administration building. The Trial Chamber is satisfied that, sometime in June or July 1992, Cedic arrived in room 16 with marks from having been beaten.⁷⁰² There is no indication, however, that he was beaten while detained at the KP Dom, nor by whom he might have been beaten. On the contrary, it seems that the beating which caused the injuries took place prior to his transfer to the KP Dom.⁷⁰³ Only one witness suggested that Zaim Cedic was beaten on several occasions while in solitary confinement, but there is no indication concerning the seriousness and timing of those beatings, nor about the identity of the principal offenders.⁷⁰⁴ The Trial Chamber is not satisfied that this incident has been established.
The Prosecution concedes in its Final Trial Brief that incident B 13, which alleges that, after lunch or dinner sometime in June or mid-July 1992, Halim Dedovic was beaten by military police Drakul, aka Zliko, Krnojelac, Miletic and “Pikolo”, is the same as the incident described in par 5.23 of the Indictment.⁷⁰⁵ The Trial Chamber therefore makes no additional findings in respect of incident B 13.⁷⁰⁶
The Trial Chamber is satisfied that the allegations contained in incident B 14 have been established. Sometime in late June or later that summer of 1992, Remzija Delic was taken away from Room 18 and severely beaten by former schoolmates. While beating him, they challenged him ever to dare to come back hunting near their houses. Delic was taken back to his room with obvious bruises on his face and lacerations on his back.⁷⁰⁷ The Trial Chamber is satisfied that the purpose behind the severe beating of Delic was to intimidate him and thus make him fearful of coming near their houses again and that the beating amounted to torture pursuant to Article 3 and Article 5(f) of the Statute.
The Trial Chamber is also satisfied that the allegations contained in incident B 15 have been established. Sometime in mid-July 1992, Nedzad Delic was taken from Room 18 and beaten by former schoolmates and neighbors, including one of the KP Dom guards Zoran Vukovic. Zoran Matovic, another KP Dom guard, was also present.⁷⁰⁸ The latter put a tarpaulin over the head of Delic, beat him and kicked him so severely that he fainted several times. His moans and cries were heard by other detainees and, as a result of the mistreatment, he could not walk nor stand on his feet for a few days.⁷⁰⁹ KP Dom guards had to carry him back to his room.⁷¹⁰ The Prosecution failed, however, to establish any prohibited purpose in relation to this incident. With respect to incidents of beatings during interrogation charged as torture, the Prosecution must demonstrate that the principal offender intended to achieve one of the prohibited purposes.⁷¹¹ As an evidentiary matter, the mere statement that the victim was “taken for interrogation ” or “to give a statement” is an insufficient basis by itself for the Trial Chamber to conclude that the purpose behind the infliction of pain was to obtain information or a confession. The Prosecution must establish that the principal offender did in fact interrogate or try to obtain information or a confession from the victim or a third person.
There is no evidence to support such a finding in this case and torture has therefore not been established. Those instances pleaded which the Trial Chamber has not accepted as establishing torture may nevertheless constitute inhumane acts pursuant to Article 5(i) or cruel treatment pursuant to Article 3 of the Statute if they satisfy the requirements of either or both of those articles. The Trial Chamber is satisfied that the treatment inflicted upon Delic did amount to inhumane acts pursuant to Article 5(i) and cruel treatment pursuant to Article 3 of the Statute.
The Trial Chamber is satisfied that the allegations contained in incident B 17 have been established. Prior to being taken to the KP Dom, Juso Dzamalija was severely beaten and seriously injured as a result. Once at the KP Dom, he was denied medical attention. He lost consciousness due to the pain he suffered and was beaten several times while in the isolation cell where he was kept with other detainees.⁷¹² Sometime in April or May 1992 while in the isolation cell, Dzamalija hanged himself with his belt.⁷¹³ The Prosecution failed to establish any prohibited purpose in relation to this incident, so that torture has not been established. The Trial Chamber is satisfied, however, that the treatment meted out to Juso Dzamalija while he was detained at the KP Dom, in particular the denial of medical attention, amounted to inhumane acts pursuant to Article 5(i) as well as cruel treatment pursuant to Article 3 of the Statute.
The Trial Chamber is satisfied that the allegations made in respect of incident B 18 have been established. Sometime in mid-June 1992, Hasan Dzano, nicknamed Kalebic, an old man, was taken to the solitary confinement cell where he was brutally beaten by KP Dom guard Zoran Matovic and another man named Ivanovic. The blows inflicted and his moans were audible to the other detainees. Dzano was carried back to his room, all black and blue. The impact of the baton which the guards used to beat him could clearly be seen on his back. His face was covered in bruises, and his chin had been cut by a kick he received from military boots. He was bleeding profusely as a result, and he breathed with great difficulty. One of the detainees sutured his injuries with a needle and some thread.⁷¹⁴ The Prosecution failed to establish any prohibited purpose in relation to this incident, so that torture has not been established. The Trial Chamber is satisfied that the mistreatment inflicted upon Hasan Dzano amounted to inhumane acts pursuant to Article 5(i) as well as cruel treatment pursuant to Article 3 of the Statute.
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.⁷¹⁵ Soon thereafter, sounds of beating, cries and moans were frequently heard by other detainees.⁷¹⁶ KP Dom guards sometimes took part in the beating and they could be overheard, insulting or provoking the victims;⁷¹⁷ at least five guards took part in one or several of those incidents:⁷¹⁸ Dragomir Obrenovic, Zoran Matovic, Milenko Burilo, Rade Vukovic and Pedrag Stefanovic.⁷¹⁹ KP Dom guards and individuals coming from outside beat the inmates with their fists and feet or with batons.⁷²⁰ Shots were sometimes heard and the detainees never returned to their rooms.⁷²¹ 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.⁷²² Although the Trial Chamber may not conclude, in the absence of any supporting evidence to that effect, that all individuals taken away on those occasions were indeed beaten, it may nevertheless draw certain inferences as to what had happened to certain individuals from the treatment known to have been meted out to other detainees who were taken together with them or in a similar fashion, provided that it is satisfied that they are the only reasonable inferences available. The Trial Chamber has applied this principle in relation to the following incidents where appropriate.
The Trial Chamber is satisfied that incidents B 19, B 33, B 34, B 48 and B 59 have been established. The Trial Chamber is satisfied that, sometime in June or July 1992, Kemo or Kemal Dzelilovic (B 19 ), Halim Konjo (B 33), Mustafa Kuloglija (B 34), Mithat and Zaim Rikalo (B 48) and Munib Veiz (B 59) were called out of their rooms as a group and taken to the administration building and severely beaten by KP Dom guards including Milenko Burilo, Zoran Matovic, Dragomir Obrenovic, Rade Vukovic and Pedrag Stefanovic.⁷²³ The cries and moans of the victims were heard by other detainees.⁷²⁴ FWS-71 saw these detainees being lined up in front of the administration building and being taken in individually, and heard screams and moans starting shortly thereafter.⁷²⁵ FWS-54 saw Matovic put his foot on Dzelilovic’s head in an apparent attempt to see whether he was still alive.⁷²⁶ Amir Berberkic recognised the voice of Zaim Rikalo while he was being beaten.⁷²⁷ FWS-66, FWS-03 and FWS-113 heard the voice and cries of Konjo while he was being beaten.⁷²⁸ FWS-71 could see Konjo standing with a cut on his upper neck and blood on his T-shirt.⁷²⁹ FWS-71 also recognised KP Dom guard Burilo’s voice during the beating.⁷³⁰ When the sounds of the beating died down, several detainees heard shots being fired and FWS-54 saw Matovic leaving the administration building and coming back carrying blankets.⁷³¹ Shortly thereafter, FWS-54 heard a vehicle leaving the KP Dom.⁷³² When the vehicle came back 10 or 15 minutes later, he saw men in green-grey uniforms cleaning it with buckets and mops.⁷³³ None of the detainees ever returned, nor were they ever heard of again. The Trial Chamber is satisfied from the circumstances in which they were taken away that Dzelilovic, Konjo, Kuloglija, Mithat and Zaim Rikalo and Veiz were severely beaten by KP Dom guards as alleged in the Indictment. The Trial Chamber is satisfied that this is the only reasonable inference to be drawn. The Prosecution failed to establish any prohibited purpose in relation to these incidents, so that torture has not been established. The Trial Chamber is nevertheless satisfied that the allegations contained in B 19, B 33, B 34, B 48 and B 59 have been established, and that the treatment inflicted upon these six individuals amounted to inhumane acts pursuant to Article 5(i) as well as cruel treatment pursuant to Article 3 of the Statute.
The Trial Chamber is satisfied that incidents B 20 and B 28 have been established. These incidents allege that, sometime between May and August 1992, Ramo D‘endusic (B 20) and Nail Hodzic (B 28) were beaten by KP Dom guards Milenko Burilo, Dragomir Obrenovic and other unidentified individuals on the ground floor of the administration building. The Trial Chamber is satisfied that, sometime in June or July 1992, both men were called out of their room, that they were subsequently beaten and that the moans of the victims were heard by other detainees.⁷³⁴ These two incidents are part of the pattern described in paragraph 273 supra, and they occurred in a manner similar to that described in that paragraph.⁷³⁵ FWS-66 saw D‘endusic being taken out and he heard both D‘endusic and Hodzic being beaten.⁷³⁶ The Trial Chamber is satisfied from the circumstances in which they were taken away that D‘endusic and Hodzic were severely beaten as alleged in the Indictment.⁷³⁷ The Trial Chamber is satisfied that this is the only reasonable inference to be drawn and that this incident has been established. The Prosecution failed to establish any prohibited purpose in relation to this incident, so that torture has not been established. The Trial Chamber is nevertheless satisfied that the treatment inflicted upon these five individuals amounted to inhumane acts pursuant to Article 5(i) as well as cruel treatment pursuant to Article 3 of the Statute.
The Trial Chamber is also satisfied that incident B 21 and B 46 have been established. The Trial Chamber is satisfied that, sometime in June or July 1992, Emir Frasto (B 21) and Husko or Husein Rikalo (B 46) were taken as part of a group of detainees to the administration building where they were severely beaten. Frasto and Rikalo were taken together with Nurko Nisic and Esad Kiselica.⁷³⁸ FWS-162 said that he saw the four detainees standing in front of the gate. He also heard Nisic being beaten for half an hour and begging “Zelja” to stop.⁷³⁹ “Zelja” simply answered: “Now you’ll see how we beat”.⁷⁴⁰ FWS-104 and Amir Berberkic both heard Rikalo being beaten and the provocative remarks of those beating him.⁷⁴¹ The beating of these four men lasted for about two hours.⁷⁴² The Trial Chamber is satisfied that the allegations contained in B 21 and B 46 have been established. The Prosecution failed to establish any prohibited purpose in relation to these two incidents, so that torture has not been established. The Trial Chamber is satisfied, however, that the treatment inflicted upon Frasto and Rikalo amounted to inhumane acts pursuant to Article 5(i) as well as cruel treatment pursuant to Article 3 of the Statute.
Incident B 22 alleges that, sometime between 26 June and 14 July 1992, Adnan Granov was beaten by unidentified individuals, KP Dom guards and/or soldiers from outside the KP Dom, including military policemen, on the ground floor of the administration building. The Trial Chamber is satisfied that the allegations have been established. During his detention, in June and July 1992, Granov was repeatedly beaten.⁷⁴³ He was accused of having travelled to Germany before the war to obtain weapons and of having illegally transmitted radio messages.⁷⁴⁴ Zekovic said that Granov, whom he knew personally, had been beaten badly.⁷⁴⁵ FWS-142 said that, on one of those occasions when Granov was taken out, he heard moans and screams coming from the administration building.⁷⁴⁶ Granov was eventually taken away and he disappeared.⁷⁴⁷ The Trial Chamber is satisfied that Granov was being beaten in order either to obtain information about radio transmission or weapons or that he was being punished for his involvement in those matters. In view of the seriousness of the injuries inflicted and the repetition of the beatings, the Trial Chamber is satisfied that the treatment inflicted upon him is serious enough to amount to torture.
Incident B 23 alleges that, sometime between 26 June and 14 July 1992, Izet Grosonja was beaten by unknown KP Dom guards and/or soldiers from outside the KP Dom, including military police on the ground floor of the administration building. The Trial Chamber is satisfied that, at some point, Grosonja was taken out of his room and never returned.⁷⁴⁸ There is no indication, however, that he was ever beaten while detained at the KP Dom⁷⁴⁹ nor, if he was, is there any indication of the gravity of the beating. Accordingly, the Trial Chamber is not satisfied that this incident has been established.
Incident B 24 alleges that, on an unknown date, Resad Hadzimesic was beaten by unidentified KP Dom guards and/or soldiers from outside the KP Dom, including military police on the ground floor of the administration building. The Trial Chamber is satisfied that, sometime in the latter half of September 1992,⁷⁵⁰ Hadzimesic was taken out, ostensibly for plum picking, and never returned.⁷⁵¹ The Trial Chamber is not satisfied, however, that Hadzimesic was beaten as alleged. One witness mentioned that Hadzimesic was taken several times and beaten, but there is no evidence of the seriousness of the beating or of the identity of the principal offenders.⁷⁵² Accordingly, the Trial Chamber is not satisfied that, either at the time he was taken out or prior to that, Hadzimesic was beaten at the KP Dom in the manner described in the Schedule, nor that the beating was serious enough to amount to any of the offences charged.⁷⁵³
The Trial Chamber is satisfied that the incidents B 25, B 26 and B 51 have been established. On one occasion in the summer of 1992, Latif Hasanbegovic, Aziz Haskovic and Halim Seljanci were taken out together and severely beaten by two KP Dom guards, Zoran Matovic and Milenko Burilo. They were beaten all over their bodies, including on the soles of their feet, and one of the guards used a baseball bat for that purpose.
As a result, they were barely able to move or to stand on their feet when returned to their room.⁷⁵⁴ The Prosecution failed to establish any prohibited purpose in relation to this incident, so that torture has not been established. The Trial Chamber is nevertheless satisfied that the treatment meted out to Latif Hasanbegovic, Aziz Haskovic and Halim Seljanci amounted to both inhumane acts pursuant to Article 5(i) as well as cruel treatment pursuant to Article 3 of the Statute.
The Trial Chamber is satisfied that incident B 30 has been established. Sometime in June 1992, Kemo or Kemal Isanovic and a young man by the last name of Cedic were called out by a soldier from outside the KP Dom, and a KP Dom guard, taken away and severely beaten. Their screams and moans were clearly heard by other detainees. They came back swollen and bruised.⁷⁵⁵ The Prosecution failed to establish any prohibited purpose in relation to this incident, so that torture has not been established. The Trial Chamber is nevertheless satisfied that the treatment inflicted upon Kemo or Kemal Isanovic, as described in Schedule B,⁷⁵⁶ amounted to both inhumane acts pursuant to Article 5(i) as well as cruel treatment pursuant to Article 3 of the Statute.
The Trial Chamber is further satisfied that, as alleged under incident B 31, on an unknown date in the summer of 1992, Ibrahim Kafedzic was taken out for interrogations. Kafedzic was beaten and returned with his body black and blue, and his face red with bruises. Kafedzic was taken out on several occasions and he was very frightened. He told other detainees that a man named Vladicic had interrogated him.⁷⁵⁷ Kafedzic told Zekovic that he was being beaten terribly because a relative of his had joined the BH army.⁷⁵⁸ The Trial Chamber is satisfied that the beating of Ibrahim Kafedzic alleged in B 31 has been established, that it was for the prohibited purpose of obtaining information and that, in view of the seriousness of the injury and the repetition of the beatings, it amounted to torture pursuant to Articles 3 and 5 of the Statute.⁷⁵⁹
Incident B 32 alleges that, on one occasion after 7.00 pm between May and October 1992, Rasim Kajgana was beaten by KP Dom guards Milenko Burilo, Dragomir Obrenovic and unknown others on the ground floor of the administration building. The Trial Chamber is satisfied that, in September 1992, Kajgana was taken out of the KP Dom and never seen again, but there is no evidence that he was beaten in the course of that event or prior to it.⁷⁶⁰ The Trial Chamber is not satisfied that the incident has been established.
Incidents B 33 and B 34 have already been dealt with above.⁷⁶¹
Incident B 35 alleges that, sometime in May or June 1993, Omer Kunovac was beaten by unidentified KP Dom guards and/or soldiers from outside the KP Dom, including military police, on the ground floor of the administration building. The Trial Chamber is satisfied that Kunovac was one of two deaf-mutes detained at the KP Dom,⁷⁶² and that a deaf-mute was beaten by a policeman named Pjelvaljcic.⁷⁶³ The Trial Chamber is unable to determine whether that victim was Kunovac, nor is it able to determine the seriousness of the beating inflicted. Another witness who knew Kunovac testified that Kunovac was originally brought to his room all beaten up and that he later died of his injuries.⁷⁶⁴ This witness conceded that he had assumed that Kunovac had been beaten in the solitary confinement cell at the KP Dom, and he did not rule out the possibility that the beating might have taken place prior to Kunovac’s arrival at the KP Dom.⁷⁶⁵ In those circumstances, the Trial Chamber is not satisfied that the incident described under B 35 has been established.
The Trial Chamber observes that in its Final Trial Brief the Prosecution changed the name of the alleged victim of incident B 36 from MK (i.e. Salko, nicknamed “Kelta”, Mandzo) to Fuad Mandzo, without giving notice of that fact to either the Defence or the Trial Chamber and without seeking leave to amend the Indictment. Without proper notice of such a change to the Defence, it would not be appropriate for the Trial Chamber to make any finding as to whether or not Fuad Mandzo was beaten or mistreated in the manner described in Schedule B. Incident B 36, as pleaded, alleges that, one evening sometime between mid-May and July 1992, Salko, nicknamed “Kelta”, Mandzo was beaten by unidentified KP Dom guards and soldiers from outside the KP Dom in the administration building. This is the same incident as that contained in par 5.28 of the Indictment, in relation to which the Trial Chamber came to the conclusion that the acts charged amounted to torture pursuant to Article 3 and Article 5(f) of the Statute.⁷⁶⁶ Another finding therefore need not be made in respect of these allegations.
The Trial Chamber is satisfied that the allegations contained in incident B 37 have been established. Sometime in mid-June 1992, Emir Mandzo was taken to the gate of the KP Dom and brutally beaten. Mandzo was placed on a chair while KP Dom guards or soldiers from outside the KP Dom took his shoes off and inserted his arms and legs through the frame of another chair. One of the principal offenders took a baton and beat him on the arms and legs. Zoran Vukovic, a man from Josanica, hit him with his soldier’s boot on the jaw, and he fainted. Another KP Dom guard, Zoran Matovic, also took part in the beating. Mandzo fainted several times, but they kept splashing water on him until he regained consciousness. It lasted for about half an hour before they realised, as with the incident described in par 5.28 of the Indictment, that he was not the individual they were looking for.⁷⁶⁷ When Mandzo was returned to the room, his body resembled one huge wound. His face was completely distorted from the blows, his upper lip was lacerated, and his teeth in the upper jaw were broken. He had large swellings on the soles of both his feet. The backs of his hands were swollen, his index fingers were broken and his back bore the marks of blows inflicted by a baton. He was unable to get up for three days. The other detainees had to carry him, and bring him food in his room.⁷⁶⁸ The Prosecution failed to establish any prohibited purpose in relation to this incident, so that torture has not been established. The Trial Chamber is nevertheless satisfied that the treatment meted out to Emir Mandzo amounts to inhumane acts pursuant to Article 5(i) as well as cruel treatment pursuant to Article 3 of the Statute.
Incident B 39 alleges that, one evening sometime between 24 May and 7 July 1992, a Croat named Matovic was beaten by unidentified KP Dom guards and/ or soldiers from outside the KP Dom, including military police on the ground floor of the administration building. There is no evidence that the incident described in the Indictment occurred.⁷⁶⁹ The Trial Chamber observes that, in its Final Trial Brief, the Prosecution changed the name of the alleged victim of this incident Matovic to Mate Ivancic without giving notice of that fact to either the Defence or the Trial Chamber,⁷⁷⁰ and without seeking leave to amend the Indictment. The Trial Chamber does not in such circumstances make a finding in relation to Ivancic. The Trial Chamber is not satisfied that the pleaded incident has been established.
Incident B 40 alleges that, after 6.00 pm on several occasions between 29 April and 19 August 1992, Avdo Mehmedspahic was beaten by four policemen from outside the KP Dom, Zoran Vladicic, Miso Koprivica, Petko Gasovic and Vojislav Starovic, and other unknown individuals. Several witnesses stated that they saw Mehmedspahic at the KP Dom with injuries.⁷⁷¹ Several of them stated or conceded that those injuries might have been incurred prior to his being brought to the KP Dom.⁷⁷² In those circumstances, the Trial Chamber is not satisfied that the evidence suggesting that he might also have been beaten while at the KP Dom,⁷⁷³ let alone in the manner and at the time mentioned in the Schedule, is sufficient to conclude that this incident has been established.
Incident B 41 alleges that, one night between 13 June and 30 June 1992, Azim Mesbur was beaten by unidentified KP Dom guards and/or soldiers from outside the KP Dom, including military police on the ground floor of the administration building. The Trial Chamber is satisfied that Mesbur was taken out of his room sometime in September 1992 and was never seen again.⁷⁷⁴ However, there is no evidence that he was beaten at that time or at any other time while detained at the KP Dom.⁷⁷⁵ Accordingly, the Trial Chamber is not satisfied that the incident has been established.
Incident B 43 alleges that, on one occasion after lunch or dinner between June and mid-July 1992, Mehmet Pasalic was beaten by unidentified KP Dom guards and/or soldiers from outside the KP Dom, including military police on the ground floor of the administration building. The Trial Chamber is satisfied that Pasalic was taken to the gate and never seen again.⁷⁷⁶ There is no evidence, however, that he was beaten, and the Trial Chamber is not satisfied that this incident has been established.
Incident B 44 alleges that, one afternoon in the summer of 1992, Mensud Pasovic was beaten by KP Dom guard Dragan Zelenovic and other unknown individuals. The Trial Chamber is not satisfied that this incident has been established. The Trial Chamber is satisfied that Pasovic was taken away at some point during the summer of 1992 and never seen again,⁷⁷⁷ but there is no evidence that he was beaten at that time or at any other time.
Incident B 45 alleges that, sometime between June and mid-July 1992 after lunch or dinner, Hidajet Rikalo was beaten by unidentified KP Dom guards and /or soldiers from outside the KP Dom, including military police, on the ground floor of the administration building. Witness Berberkic said that he knew three relatives by the last name Rikalo: Husein, Zaim and Hidajet or “Hido”.⁷⁷⁸ Berberkic also stated that the three of them were taken away in a similar manner during the same period, that they were beaten and they never returned.⁷⁷⁹ Berberkic distinctly recognised the voices of both Husein and Zaim whom he knew well when they were being beaten in the administration building.⁷⁸⁰ Although Berberkic did not recognise the voice of Hidajet, whom he did not know so well, the Trial Chamber is satisfied from the circumstances in which he was taken away that Hidajet Rikalo was also severely beaten. The Trial Chamber is satisfied that this is the only reasonable inference to be drawn, and that this incident has been established. The Prosecution failed to establish any prohibited purpose in relation to this incident, so that torture has not been established. The Trial Chamber is nevertheless satisfied that the treatment meted out to Hidajet Rikalo amounts to inhumane acts pursuant to Article 5(i) as well as cruel treatment pursuant to Article 3 of the Statute.
Incident B 46 has already been dealt with above.⁷⁸¹
Incident B 47 alleges that, one evening sometime between 26 June and 14 July 1992, Necko Rikalo was beaten by unidentified KP Dom guards and/or soldiers from outside the KP Dom, including military police, on the ground floor of the administration building. The Trial Chamber is satisfied that Rikalo was taken out sometime in late June or early July 1992 and never returned.⁷⁸² One witness mentioned that he heard the sound of beatings which took place during the period – mid-June – when Rikalo was taken away.⁷⁸³ The Trial Chamber is not satisfied that this evidence referred to Rikalo, or that it is sufficient to establish the incident described in B 47.
Incident B 48 has already been dealt with above.⁷⁸⁴
The Prosecution concedes in its Final Trial Brief that incident B 49 is identical to the incident charged under paragraph 5.23 of the Indictment.⁷⁸⁵ Incident B 49 alleges that, on several occasions at the end of June 1992, Hajro Sabanovic was beaten in the administration building by military police from outside the KP Dom, Drakul, aka Zliko, Krnojelac, Miletic and “Pikolo”. The Trial Chamber therefore need not make additional findings in respect of incidents B 49.⁷⁸⁶
Incident B 50 alleges that, sometime between 26 June and 14 July 1992, Haso Selimovic was beaten by unidentified KP Dom guards and/or soldiers from outside the KP Dom, including military police, on the ground floor of the administration building. The Trial Chamber is satisfied that, sometime in June 1992,⁷⁸⁷ Selimovic was taken out and never returned.⁷⁸⁸ The Trial Chamber is not satisfied, however, that he was beaten in the course of his disappearance or prior to this date. The Trial Chamber is not satisfied that this incident has been established.
Incident B 51 has already been dealt with above.⁷⁸⁹
The Trial Chamber is satisfied that, as described in incident B 52, sometime in August or September 1992, Mehmed Sofrad‘ija, nicknamed “Mesa”, was taken to an isolation cell, interrogated and badly beaten.⁷⁹⁰ His screams could be heard while he was being interrogated.⁷⁹¹ When he was brought back to his room, his entire face was swollen and bore the marks of beatings. He stayed in the isolation cell for about seven days without anything to eat or drink, and he had no choice but to drink his own urine.⁷⁹² He was so frightened that he would not survive this ordeal that he gave his watch to another detainee, asking him to give it to his son.⁷⁹³ The Trial Chamber is satisfied that the allegations contained in B 52 have been established and that all the elements of the definition of torture pursuant to Article 3 and Article 5(f) of the Statute have been made out, including the prohibited purpose of obtaining information.
Incident B 53 alleges that, sometime during daytime in April 1992, Esad Soro was beaten by Miso Koprivica, a police inspector from outside the KP Dom. FWS-54 testified that he was himself taken out and interrogated by Koprivica.⁷⁹⁴ FWS-54 stated that Koprivica had treated him, the witness, fairly and that he did not beat him.⁷⁹⁵ FWS-54 added that other detainees – the three Soro brothers, Esad, Seval and Sulejman, as well as Elvedin Cedic – told him that Koprivica did beat them.⁷⁹⁶ FWS-54, however, questioned the reliability of their statements.⁷⁹⁷ FWS-109 testified that Esad Soro was taken away and never seen again, but there is no evidence that Esad Soro was beaten on the occasion alleged.⁷⁹⁸ In those circumstances, the Trial Chamber is not satisfied that the incident described above has been established by that hearsay evidence.
Incident B 54 alleges that, sometime during daytime in April 1992, Seval Soro was also beaten by Miso Koprivica, a police inspector from outside the KP Dom. The Trial Chamber reiterates the conclusions reached in respect of B 53.⁷⁹⁹ The Trial Chamber is satisfied that Seval Soro was taken away and never returned.⁸⁰⁰ There was no evidence, however, that he was beaten on the occasion alleged, let alone at the time, in the manner or by the individual mentioned in the Schedule.⁸⁰¹ The Trial Chamber is not satisfied that this incident has been established.
Incident B 55 alleges that, sometime during daytime in April 1992, Sulejman Soro was also beaten by Miso Koprivica, a police inspector. The Trial Chamber reiterates the conclusions reached in respect of B 53;⁸⁰² there was no other evidence that Sulejman Soro was dealt with in the manner described in the Indictment. The Trial Chamber is not satisfied that this incident has been established.
Incident B 56 alleges that, after 6.00 pm on several occasions between 29 April and 19 August 1992, Habib Subasic was beaten by four policemen from outside the KP Dom, Zoran Vladicic, Miso Koprivica, Petko Gasovic and Vojislav Starovic and other unknown individuals. One witness testified that Subasic had been seriously beaten before he arrived at the KP Dom.⁸⁰³ Another witness stated that he saw marks resulting from beating on Subasic’s body, and was told by him that he had been beaten; he did not, however, tell him when or by whom.⁸⁰⁴ The Trial Chamber is not satisfied that the incident has been established.
The Trial Chamber is satisfied that the treatment meted out to FWS-159, as described in incident B 57, has been established, that the principal offenders acted with the prohibited purpose of obtaining information and that it amounts to torture pursuant to Article 3 and Article 5(f) of the Statute. Despite obvious injuries sustained before he arrived at the KP Dom at the end of January 1993, FWS -159 was interrogated on his arrival by Boro Ivanovic and someone named Milorad; he was threatened, slapped and denied any medical treatment.⁸⁰⁵ FWS-159 was subsequently locked in an isolation cell for about three months, during which time he was again repeatedly interrogated by Boro Ivanovic about military activity.⁸⁰⁶ On at least ten occasions during that period, he was beaten particularly brutally by Serb soldiers and KP Dom guards.⁸⁰⁷ One of the guards, Zoran Matovic, beat
him with his feet and hands on the kidneys, spine, head and around the heart.⁸⁰⁸ The same guard also beat him with a knife and threatened to cut his heart out.⁸⁰⁹
Incident B 58 alleges that, one evening between May and August 1992, Munib Vehida was beaten by KP Dom guards Milenko Burilo and Dragomir Obrenovic and other unidentified individuals. There is no evidence supporting this allegation. The Trial Chamber is therefore not satisfied that this incident has been established.
Finally, incident B 59 has already been dealt with above.⁸¹⁰

3. The responsibility of the Accused
The Accused denied that he ever saw or heard about beatings of non-Serb detainees at the KP Dom.⁸¹¹ The Trial Chamber is satisfied, however, that the Accused knew that Muslim detainees were being beaten and that they were otherwise being generally mistreated in the manner described under par 5.4 through 5.29 of the Indictment.
First, the Trial Chamber is satisfied that the Accused saw one detainee being beaten. Although the Accused acknowledged that he met Ekrem Zekovic after the latter had been severely beaten, he denies that he saw him being beaten or that he saw any marks or indication which might have led him to conclude that Zekovic might have been beaten.⁸¹² The Trial Chamber does not accept that assertion as credible, and rejects the Accused’s evidence. The Trial Chamber has already accepted and reiterates that the Accused intervened to stop the beating of Zekovic by one of the KP Dom guards.⁸¹³ This guard, Milenko Burilo, continued to attack Zekovic while being taken away by the Accused.⁸¹⁴ At some point, Burilo threw Zekovic against a wall as a result of which the latter lost consciousness.⁸¹⁵ 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.
Secondly, although he denied it,⁸¹⁶ the Accused was personally told about non-Serb detainees being beaten and mistreated.⁸¹⁷ RJ told the Accused that detainees could hear the sounds of beatings coming from the administrative building.⁸¹⁸ The Accused merely said that he had no authority over that part of the building.⁸¹⁹ RJ also told the Accused about the beating of a retarded detainee.⁸²⁰ The Accused said that he would look into the matter.⁸²¹ The Trial Chamber does not accept the denials of the Accused in relation to these issues nor did they cause the Trial Chamber to have any reasonable doubt that the Prosecution witnesses were telling the truth.
Thirdly, in view of the widespread nature of the beatings at the KP Dom and the obvious resulting physical marks on the detainees, the Accused could not have failed to learn of them, although he denies it.⁸²² 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. The Trial Chamber notes that the Accused held the position of warden for 15 months, during which time he went to the KP Dom almost every day of the working week. While there he would go to the canteen,⁸²³
the prison yard or elsewhere inside the compound,⁸²⁴ all places where he had plenty of opportunities to notice the physical condition of the non-Serb detainees.
The Trial Chamber does not accept the Accused’s blanket denial of any knowledge of beatings as being credible. It is satisfied that he must have been aware that the detainees, for whose care he was responsible, and some of whom he knew personally,⁸²⁵ were being mistreated. The Trial Chamber is also satisfied that the Accused, having witnessed the beating of Zekovic, was aware that the purpose of the beating was of punishing him for his failed escape.⁸²⁶ That is a prohibited purpose, so that the Accused was, the Trial Chamber accepts, aware that Zekovic was being tortured. However, as already indicated, the Accused has not been charged with criminal responsibility for the torture of Zekovic.⁸²⁷ Had he been so charged, he would have been responsible as a superior pursuant to Article 7(3), because he failed to punish KP Dom guard Burilo for torturing Zekovic.
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 Trial Chamber is satisfied that every incident which amounts to torture pursuant to Article 3 and Article 5 of the Statute automatically amounts to cruel treatment pursuant to Article 3 and other inhumane acts pursuant to Article 5(i), as the offence of torture in fact subsumes those two lesser offences. Any finding that an act of torture has been committed in one specific instance would, therefore, imply that an act of cruel treatment and/or other inhumane acts has been committed. In view of the majority decision of the Appeals Chamber in the Celebici judgment, the Trial Chamber is obliged to enter additional convictions for the subsumed offences. No additional punishment is imposed for the additional convictions.
With respect to “common purpose” liability under Article 7(1), there is no acceptable evidence that the Accused entered into any agreement for a joint criminal enterprise to commit beatings and torture against non-Serb detainees.
With respect to aiding and abetting liability pursuant to Article 7(1), the Trial Chamber is satisfied that the Accused knew of the beatings and that, by failing to take any appropriate measures which, as the warden, he was obliged to adopt, he encouraged these acts, at least in respect of his subordinates. The Trial Chamber is satisfied therefore that the Accused’s liability for aiding and abetting the beatings pursuant to Article 7(1) has been established. The Trial Chamber considers, however, that, in view of the nature of the Accused’s participation, the more appropriate basis of liability in relation to the beatings is his responsibility as a superior pursuant to Article 7(3) of the Statute. As the Trial Chamber is of the view that it is inappropriate to convict under both heads of responsibility based on the same acts, it will enter a conviction under Article 7(3) only.⁸²⁸
It appears from the evidence that essentially two categories of individuals were involved in the beating of non-Serb detainees: guards of the KP Dom and people coming from outside of the KP Dom. In respect of the first group, the Trial Chamber is satisfied that many guards were involved in these beatings,⁸²⁹ including Dragomir Obrenovic,⁸³⁰ Milenko Burilo,⁸³¹ Milenko Elcic,⁸³² Zoran Matovic,⁸³³ Vlatko Pljevaljcic,⁸³⁴ Predrag Stefanovic,⁸³⁵ Jovo Savic,⁸³⁶ Radovan Vukovic,⁸³⁷ Milovan Vukovic,⁸³⁸ Milivoj Milic,⁸³⁹ and Milenko Elcic.⁸⁴⁰ These guards called the detainees out of their room and took them to other rooms where they knew that they would be beaten and sometimes personally took part in the beatings themselves.⁸⁴¹
In respect of the actions of the guards of the KP Dom, the Accused is responsible as their superior under Article 7(3) of the Statute. As warden of the KP Dom, the Accused was the de jure superior of the guards,⁸⁴² and he knew, for the reasons given above, that they were involved in the beating of non-Serb detainees. Not only did the Accused personally see one of his subordinates beat a detainee,⁸⁴³ he also heard about such incidents, and it must have been clear that, considering that the guards were in direct contact with and controlled the detainees, some of them were involved. The Trial Chamber considers that the Accused failed in his duty as warden to take the necessary and reasonable measures to prevent such acts or to punish the principal offenders for the following reasons:

(i) He failed to investigate the allegations of beatings, when he would inevitably have ascertained the identity of those responsible for many of those beatings (including those individuals from outside the KP Dom).

(ii) He failed to take any appropriate measures to stop the guards from beating and mistreating detainees when, as the warden and their superior, he was obliged to do so. In particular, the Accused failed to order the guards to stop beating detainees and to take appropriate measures so that other individuals from outside the KP Dom would not be in a position to mistreat detainees.

(iii) He failed to speak to his subordinates about the mistreatment of detainees.

(iv) He failed to punish those guards who would have been identified, had he carried out an investigation, as being responsible for the beatings or to take steps to have them punished.

(v) He failed to report their abuses to a higher authority.
In respect of the second group of principal offenders, namely, those individuals, soldiers, policemen and other persons who were not guards under the Accused’s direct command, the Trial Chamber is not satisfied that the Accused should be held responsible for their acts. The Trial Chamber is not satisfied that the Accused was shown to have had effective control over them as required for criminal liability as a superior to attach under Article 7(3). Nor is the Trial Chamber satisfied that the Accused is individually responsible under Article 7(1) for having aided and abetted their crimes, as it has not been established beyond reasonable doubt that in fact he knew that those individuals, as opposed to the guards of the KP Dom, were taking part in the beatings.⁸⁴⁴ There were sufficient indications to put him on notice that beatings were taking place and that outsiders may have been involved, and thus put him under an obligation to investigate the matter, but that would not suffice, in the absence of evidence that he had actual knowledge, as opposed to mere suspicions concerning their part therein, to hold him responsible for aiding and abetting those who were not guards.⁸⁴⁵ The Prosecution has not established any other basis upon which, had he known that outsiders were involved in the beating of detainees, the Accused may be said to have aided and abetted them. However, in accordance with the findings made in par 318, supra, the Accused is criminally responsible as a superior under Article 7(3) for the actions of the KP Dom guards (a) who permitted individuals from outside the KP Dom to enter the KP Dom in order to participate in the mistreatment of detainees, thereby (at the least) aiding and abetting them in that mistreatment, and (b) who participated with those outsiders in that mistreatment.
In summary, the Trial Chamber is satisfied that the Accused is guilty pursuant to Article 7(3) of the Statute for the crimes of inhumane acts pursuant to Article 5(i) and cruel treatment pursuant to Article 3 of the Statute (respectively counts 5 and 7 of the Indictment) in respect of the following incidents: par 5.9, 5.15, 5.16, 5.18, 5.20, 5.21 (in respect of FWS-110, FWS-144, Muhamed Lisica as well as several other unidentified detainees), 5.27 (in respect of Salem Bico),⁸⁴⁶ and 5.29 (in respect of Vahida Dzemal, Enes Uzunovic and Elvedin Cedic) of the Indictment,⁸⁴⁷ and schedule incidents A 2, A 7, A 10, A 12, B 15, B 17, B 18, B 19, B 20, B 21, B 25, B 26, B 28, B 30, B 33, B 34, B 37, B 45, B 46, B 48, B 51 and B 59. In addition, the following incidents for which a finding of torture was made do in fact, in light of what has been said above,⁸⁴⁸ amount to inhumane acts pursuant to Article 5(i) of the Statute and cruel treatment pursuant to Article 3 of the Statute, and the Accused is also found guilty pursuant to Article 7(3) for these incidents charged under Counts 5 and 7 of the Indictment: par 5.21 (in respect of FWS-73), 5.23, 5.27 (in respect of Nurko Nisic and Zulfo Veiz),⁸⁴⁹ 5.28, and par 5.29 (in respect of Aziz Sahinovic) and schedule incidents B 4, B 14,⁸⁵⁰ B 22, B 31, B 52 and B 57.

D. Murder
The Accused is charged with murder as a violation of the laws or customs of war, pursuant to Article 3 of the Statute of the Tribunal, and recognised by common Article 3(1)(a) of the Geneva Conventions, and with murder as a crime against humanity, pursuant to Article 5(a) of the Statute. ⁸⁵¹

1. The law
The general requirements with respect to Articles 3 and 5 of the Statute have been met.⁸⁵²
It is clear from the jurisprudence of the Tribunal that the elements of the offence of murder are the same under both Article 3 and Article 5 of the Statute.⁸⁵³ These elements have been expressed slightly differently, but those slight variations in expression have not changed the essential elements of the offence.
The basic requirements for the crime of murder are:

1. The victim named in the indictment is dead.

2. The victim’s death was caused by an act or omission of the accused, or of a person or persons for whose acts or omissions the accused bears criminal responsibility.
3. That act was done, or that omission was made, by the accused, or a person or persons for whose acts or omissions he bears criminal responsibility, with an intention:
4. to kill, or
5. to inflict grievous bodily harm, or
6. to inflict serious injury, in the reasonable knowledge that such act or omission was likely to cause death.⁸⁵⁴
It is necessary to have regard to two particular issues arising with respect to the law in this case. The first issue concerns the fact that the Prosecution, although alleging that the victims in Schedule C were murdered at the KP Dom, has not been able to bring direct evidence before the Trial Chamber of their deaths, such as an identification of their bodies. The second issue concerns the death of one individual by suicide.⁸⁵⁵
The first issue can be dealt with quite simply. Proof beyond reasonable doubt that a person was murdered does not necessarily require proof that the dead body of that person has been recovered. The Defence has not disputed this. It has accepted, quite rightly, that the fact of a victim’s death can be inferred circumstantially from all of the evidence presented to the Trial Chamber.⁸⁵⁶ All that is required to be established from that evidence is that the only reasonable inference from the evidence is that the victim is dead as a result of what occurred in the KP Dom.
The evidence presented by the Prosecution to establish a circumstantial case as to the death of the victims in such circumstances includes such facts as: proof of incidents of mistreatment directed against the individual; patterns of mistreatment and disappearances of other individuals detained at the KP Dom; the general climate of lawlessness at the KP Dom where the acts were committed; the length of time which has elapsed since the person disappeared; and the fact that there has been no contact by that person with others whom he would have been expected to contact, such as his family. ⁸⁵⁷ In essence, the Trial Chamber must be satisfied, looking at the evidence as a whole, that the only reasonable inference from that evidence is that the particular person died as a result of what occurred in the KP Dom.⁸⁵⁸
The second issue to be addressed by the Trial Chamber concerns the death of a person who it is alleged committed suicide by hanging himself in an isolation cell after a terrible beating. The Prosecution charges the Accused with his murder. The acts and omissions alleged by the Prosecution to have caused the victim’s suicide are the beating, the subsequent denial of medical treatment and the confinement of the victim to an isolation cell. The Prosecution case is that the situation created was such that it was reasonably foreseeable to the Accused, or to those for whom he bears criminal responsibility, that the victim would kill himself.
The crucial issues are causation and intent. The relevant act or omission by the Accused or by those for whose acts or omissions the Accused bears criminal responsibility must have caused the suicide of the victim and the Accused, or those for whom he bears criminal responsibility, must have intended by that act or omission to cause the suicide of the victim, or have known that the suicide of the victim was a likely and foreseeable result of the act or omission. The Accused cannot be held criminally liable unless the acts or omissions for which he bears criminal responsibility induced the victim to take action which resulted in his death, and that his suicide was either intended, or was an action of a type which a reasonable person could have foreseen as a consequence of the conduct of the Accused, or of those for whom he bears criminal responsibility.

2. Findings: Schedule C killings
The Trial Chamber is satisfied beyond reasonable doubt that all but three of the persons listed in Schedule C to the Indictment were killed at the KP Dom. The Trial Chamber is satisfied that these persons fell within the pattern of events that occurred at the KP Dom during the months of June and July 1992,⁸⁵⁹ and that 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.
The Prosecution alleges in the Indictment that the deaths occurred between June and August 1992.⁸⁶⁰ In its Final Trial Brief, it alleges that the deaths occurred between 12 June 1992 and 28 June 1992.⁸⁶¹ The Trial Chamber is not satisfied that the Prosecution has established that the deaths occurred within this more specific and more limited time frame. There was only one witness who identified this exact period, and during his evidence that witness admitted that he could not be sure that these dates were correct, although he was sure that the deaths occurred around that time period.⁸⁶² A number of other witnesses identified Vidovdan or St Vitus Day, 28 June 1992, as a day close to the final act of killings.⁸⁶³ The Trial Chamber is satisfied that it is probable that many of the deaths did occur in the latter half of June 1992. It is not satisfied, however, taking into consideration all of the evidence presented, that the Prosecution has established that the deaths were restricted to that time period. Accordingly, the Trial Chamber is satisfied only that it has been established that the killings occurred sometime during the months of June and July 1992.
Evidence was given that the Accused was absent from the KP Dom from 24 June 1992 for a period of about 7 days. At this time he was in Belgrade where his wounded son was fighting for his life.⁸⁶⁴ The Accused produced a number of documents to support the evidence of witnesses that he was absent during this time.⁸⁶⁵ The documents produced by the Accused included a document which authorised his travel to Belgrade on 24 June 1992 for an unspecified period of time,⁸⁶⁶ and a document dated approximately two months later which purported to reimburse the Accused for expenses incurred during the trip.⁸⁶⁷ The Prosecution, while not challenging the authenticity of these documents, alleges that they could not establish that the Accused actually travelled to Belgrade at that time. It argued that the document purporting to reimburse the Accused for expenses incurred on the trip to Belgrade were actually related to a trip taken by the Accused at a later date. In support of this argument, the Prosecution relies on the fact that employees of the KP Dom were required to prepare their claims for reimbursement of travel three days after the execution of the travel.⁸⁶⁸ One of the Defence witnesses who worked at the KP Dom, however, gave evidence that the reimbursement was related to the trip taken by the Accused on 24 June 1992 and that it had not been paid to the Accused earlier either because there were insufficient funds at the KP Dom or because the Accused has not requested it earlier. His evidence was that the document relied upon by the Prosecution related to only part of the reimbursement to which the Accused was entitled, and that the Accused had in fact been paid two-thirds of his travel entitlement on 24 June 1992.⁸⁶⁹ The Trial Chamber accepts that the evidence adduced by the Accused gives rise to a reasonable doubt as to whether the Accused was present at the KP Dom from 24 June 1992, a doubt which the Prosecution has not eliminated.⁸⁷⁰ The Trial Chamber is therefore satisfied that the Accused was present at the KP Dom during this period in which the beatings and subsequent killings occurred only until 24 June 1992, and that he did not return to the KP Dom until about 2 or 3 July 1992.
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 call⁸⁷¹ and called out from a list the names of individuals to accompany them for interrogations.⁸⁷² 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.⁸⁷³ The persons called out were taken from their rooms to the metal gate at the entrance of the administration building and lined up outside the administration building.⁸⁷⁴ One by one, or in small groups, they were called into a ground floor room of that building.⁸⁷⁵ 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 Ex P 6 which was situated in the left wing of the administration building, or the next room. There they were often beaten.⁸⁷⁶ 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.⁸⁷⁷ 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.⁸⁷⁸ 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.⁸⁷⁹
When the beating stopped, victims were sometimes taken to an isolation cell.⁸⁸⁰ In other instances, the sound of pistol shots was heard,⁸⁸¹ and then the sound of a vehicle with a faulty exhaust pipe was heard being started in front of the KP Dom.⁸⁸² This vehicle was identified as a Zastava Kedi, belonging to a pool of vehicles kept at the KP Dom.⁸⁸³ The Zastava Kedi could be heard leaving the front of the KP Dom. The reflection of the headlights of the vehicle on the structure of the bridge allowed the witnesses to observe it travelling along the Drina Bridge and stopping towards the end of the bridge.⁸⁸⁴ Many witnesses said that they heard sounds of objects being thrown into the Drina River after the vehicle had stopped, but the Trial Chamber interprets this evidence as more likely being based on inferences which the witnesses drew from the fact that the vehicle stopped while still on the bridge.⁸⁸⁵ The Trial Chamber is not satisfied that the bodies of detainees were thrown into the Drina River.
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.⁸⁸⁶ Blood and bloodied instruments were seen in the rooms where the beatings occurred.⁸⁸⁷ 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.⁸⁸⁸ Bullet holes were observed in the walls of the hall behind the metal door to the administration building.⁸⁸⁹
There was little direct evidence that any of the persons listed in Schedule C were killed on the evening they were called out from the room in which they were detained. The Trial Chamber is nevertheless satisfied that all but three of the persons listed on 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. This is the only reasonable inference to be drawn from the evidence.
The Trial Chamber has already accepted that many of the detainees alleged to have been murdered at the KP Dom had been subject to earlier beatings or acts of torture at the KP Dom.⁸⁹⁰ After their release from the KP Dom, many other detainees made contact with the families of the victims.⁸⁹¹ The families informed them that they had received no contact from those alleged to have been murdered, and they had been unable to trace the victims.⁸⁹² A witness for the State Commission for the Finding of Missing Persons gave evidence of the attempts that had been made to locate these missing persons, and of the fact that all of the persons are reported as having last been seen at the KP Dom. Only those persons whose presence at the KP Dom can be confirmed by two independent witnesses are listed as having disappeared while detained at the KP Dom.⁸⁹³ Many of the alleged victims are also registered with the International Committee of the Red Cross as missing persons. None of the bodies of the alleged victims listed in Schedule C has been located, although two bodies of persons not listed on Schedule C but last seen at the KP Dom have been discovered in a mass grave.⁸⁹⁴ Death certificates have been issued for some of the alleged victims at the request of the families by the municipal courts of Gorazde and Sarajevo.⁸⁹⁵
The evidence of one of the former guards of the KP Dom corroborated the evidence of the Prosecution witnesses. Risto Ivanovic gave evidence that, when the army came to the KP Dom, the guard on duty was given a list of the names of detainees who were to be brought to the gate. He said that he did not know what happened to them after being brought to the gate, but he noticed that they were not seen again in the KP Dom.⁸⁹⁶ Ivanovic could not remember the date upon which these events occurred but the evidence is consistent with the evidence given by the Prosecution witnesses of the taking out of detainees in June and July 1992.⁸⁹⁷
The Trial Chamber is satisfied that the guards of the KP Dom participated with the military in the killing of detainees at the KP Dom.⁸⁹⁸ The Trial Chamber is satisfied that Alija Altoka (C 1),⁸⁹⁹ Hamid “Salem” Bico (C 2),⁹⁰⁰ Abdurahman Cankusic (C 3),⁹⁰¹ Refik Cankusic (C 4),⁹⁰² Elvedin “Enko” Cedic (C 5),⁹⁰³ Kemal Dzelilovic (C 7),⁹⁰⁴ Ramo Dzendusic (C 8),⁹⁰⁵ Adil Granov (C 9),⁹⁰⁶ Mate Ivancic ( C 11),⁹⁰⁷ Esad Kiselica (C 12),⁹⁰⁸ Halim Konjo (C 13 ),⁹⁰⁹ Adil Krajcin (C 14),⁹¹⁰ Mustafa Kuloglija (C 15),⁹¹¹ Fuad Mandzo (C 16),⁹¹² Krunoslav Marinovic (C 17)⁹¹³, Nurko Nisic (C 19)⁹¹⁴, Hamid Ramovic (C 20)⁹¹⁵, Husein Rikalo ( C 21),⁹¹⁶ Mithat Rikalo ( C 22),⁹¹⁷ Zaim Rikalo (C 23 ),⁹¹⁸ Seval Soro (C 24 ),⁹¹⁹ Kemal Tulek (C 25),⁹²⁰ Enes Uzunovic (C 26),⁹²¹ D ‘emal Vahida (C 27),⁹²² Munib Veiz (C 28),⁹²³ and Zulfo Veiz (C 29)⁹²⁴ 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. The Trial Chamber is satisfied that, amongst the guards involved in these acts, were Milenko Burilo, Zoran Matovic, Milovan Vukovic, Dragomir Obrenovic, Radovan Vukovic, Slavoko Koroman, Dragan Zelenovic, Vlatko Pljevaljcic and Predrag Stefanovic.⁹²⁵ These 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.⁹²⁶
With respect to Nail Hodzic (C 10), a death certificate was issued by the Bosnia and Herzegovina Joined Military Command stating that he was slain in Foca on 26 June 1992 while performing a military task in Foca.⁹²⁷ While there is an explanation available for the issue of this certificate which is consistent with Hodzic having been killed at the KP Dom, its existence raises a reasonable possibility that he may have died elsewhere.⁹²⁸ Accordingly, the Trial Chamber is not satisfied beyond reasonable doubt that Nail Hodzic was murdered at the KP Dom, although it is very probable that he was.⁹²⁹
With respect to Omer Mujezinovic (C 18), the Trial Chamber is not satisfied that there was any evidence to establish that he was murdered at the KP Dom. A representative of the State Commission for Tracing Missing Persons gave evidence that Omer Mujezinovic was killed in a car accident. His opinion was that the person who compiled Schedule C had made a mistake and that the name should be Samir Mujezinovic.⁹³⁰ One of the Prosecution witnesses who had been detained in the KP Dom also gave evidence that he thought the name Omer Mujezinovic was incorrect and that the name should have been Samir Mujezinovic. However, his evidence was that this person was taken out of the KP Dom with a large group of people on the 17 September 1992.⁹³¹ The only other witness who identified a person called Samir Mujezinovic gave a similar account, alleging that he was taken out with a group in mid-September 1992.⁹³² Another witness gave evidence of a person called Omer Mujezinovic being detained at the KP Dom, but he was unable to give any evidence as to what had happened to that person.⁹³³ Accordingly, the Trial Chamber is not satisfied that the Prosecution has established that either Samir Mujezinovic or Omer Mujezinovic was murdered at the KP Dom.
Juso Dzamalija (C 6) committed suicide in an isolation cell of the KP Dom after a severe beating. The evidence concerning his death was equivocal. Some witnesses gave evidence that he was depressed about his family situation and committed suicide for that reason.⁹³⁴ The Trial Chamber is not satisfied that the Prosecution has established beyond reasonable doubt that the beating inflicted on the victim at the KP Dom was the cause of the victim’s suicide. This is the case to which the legal issue discussed above is directed.⁹³⁵

3. The responsibility of the Accused
There is no evidence to show that the Accused was involved in the preparation of the lists of names of persons to be taken out of the KP Dom to be interrogated, nor any evidence that the Accused was present in the rooms where the beatings and killings occurred or that he was present at the KP Dom during the evenings when the beatings and killings occurred. There was also no evidence that the Accused issued any orders to the guards of the KP Dom with respect to the beatings and killings.
The Trial Chamber is nevertheless satisfied that the Accused had knowledge that people were being beaten and were disappearing from the KP Dom during the evenings of the month of June 1992.⁹³⁶ RJ told the Accused 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 the Accused what had happened to a group of people who had disappeared overnight and was told not to ask, as the Accused did not know. ⁹³⁷
The Trial Chamber is not satisfied that the Prosecution has demonstrated that the Accused knew that people being called out in the evenings of the month of June 1992 and disappearing from the KP Dom were being killed. RJ, who frequently talked with the Accused, asked him on another occasion at the request of Halid Konjo what had happened to his brother, Halim Konjo. He was told by the Accused not to ask him anything because he was dead.⁹³⁸ RJ claimed that the Accused had refused to discuss the circumstances surrounding the death of Halim Konjo, but other witnesses gave evidence that they had been told by RJ that the Accused had said that Halim Konjo had succumbed to a beating and died.⁹³⁹ The Trial Chamber accepts the evidence of RJ on this issue and rejects the hearsay evidence of the other witnesses. The Accused admitted that he knew about the death of Halim Konjo the morning after his death had occurred in June 1992⁹⁴⁰ and did not deny that he told RJ about the death.⁹⁴¹ 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.⁹⁴² 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.⁹⁴³ No other evidence was adduced by the Defence to establish that an investigation into the death of Halim Konjo had been carried out. No other evidence was adduced by the Prosecution to establish that the Accused was aware of the death of any other detainees, other than Juso Dzamalija, who the Trial Chamber has already determined died as a result of suicide, and whose death the Accused admitted being aware of.⁹⁴⁴ In these circumstances, the Trial Chamber is not satisfied that the Accused was aware that the detainees disappearing during the month of June 1992 were being killed or that he had any knowledge of detainees being taken out and killed during the month of July 1992.
The Prosecution alleges that the Accused’s responsibility for the murders arises from his involvement in a joint criminal enterprise to murder detainees pursuant to Article 7(1).⁹⁴⁵ To attach criminal liability to the Accused for the joint criminal enterprise of murder, the Prosecution must establish that there was an agreement among the military authorities, guards of the KP Dom and the Accused to murder detainees and that each of these persons, including the Accused, shared the intent of murder. The Trial Chamber is not satisfied that the Prosecution has established that the Accused was a member of any joint criminal enterprise to commit murder, and therefore is not satisfied that his responsibility under this head has been established.
The Prosecution also alleges that the Accused incurred criminal responsibility pursuant to Article 7(1) by aiding and abetting the murder of detainees at the KP Dom. For the Accused to be found guilty of aiding and abetting the deaths which occurred, it was necessary for the Prosecution to demonstrate that the Accused was aware of the specific crime to be carried out by the principal offender and to show that the assistance he gave the principal offender had a substantial effect on the commission of that crime by the principal offender. Although the Trial Chamber is satisfied that the failure of the Accused to use his authority to prevent outsiders coming into the KP Dom had a substantial effect on the commission of the killings by the principal offenders, the Prosecution has failed to establish that the Accused was aware of the crimes which were being committed as a result of his failure. As such, the Accused was not aware of the mens rea of the principal offender and is therefore not guilty of aiding and abetting the killings carried out under Article 7(1).
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.⁹⁴⁶ 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.⁹⁴⁷ 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.

E. Enslavement
The Accused is charged with slavery as a violation of the laws and customs of war pursuant to Article 3 of the Statute,⁹⁴⁸ on the basis of both the 1926 Slavery Convention and customary international law, and with enslavement as a crime against humanity pursuant to Article 5 of the Statute.

1. The law
Enslavement under Article 5 of the Tribunal’s Statute has been defined by the Tribunal as the exercise of any or all of the powers attaching to the right of ownership over a person.⁹⁴⁹ The actus reus of enslavement is the exercise of those powers, and the mens rea is the intentional exercise of such powers.⁹⁵⁰
Although not enumerated under Article 3, slavery may still be punishable under that Article if the four requirements specific to Article 3, set out above,⁹⁵¹ are met.⁹⁵²
First, slavery constitutes a violation of international humanitarian law. Slavery is expressly prohibited by Additional Protocol II, Article 4 (“Fundamental guarantees”), which provides:

1. All persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted, are entitled to respect for their person, honour and convictions and religious practices. They shall in all circumstances be treated humanely, without any adverse distinction…

2. Without prejudice to the generality of the foregoing, the following acts against the persons referred to in paragraph 1 are and shall remain prohibited at any time and in any place whatsoever…

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

Further, the offences of slavery or enslavement are identified as a crime against humanity under the Nuremberg Charter and the Tokyo Charter.⁹⁵³
Second, the Trial Chamber is satisfied that the prohibition against slavery is customary in nature.⁹⁵⁴ The Kunarac Judgment held that enslavement constituted a crime against humanity under customary international humanitarian law, and the Trial Chamber is satisfied that the analysis there of the customary nature of enslavement also applies to the offence of slavery under Article 3 of the Statute. ⁹⁵⁵ The Trial Chamber accepts that the express prohibition of slavery in Additional Protocol II of 1977, which relates to internal armed conflicts, confirms the conclusion that slavery is prohibited by customary international humanitarian law outside the context of a crime against humanity. The Trial Chamber considers that the prohibition against slavery in situations of armed conflict is an inalienable, non-derogable and fundamental right, one of the core rules of general customary and conventional international law. The commentary to Additional Protocol II lends further support to the finding of the customary international humanitarian law nature of the prohibition against slavery:

This sub-paragraph reiterates the tenor of Article 8, paragraph 1, of the (ICCPR (. It is one of the “hard-core” fundamental guarantees, now reaffirmed in the Protocol. The prohibition of slavery is now universally accepted; therefore the adoption of the sub-paragraph did not give rise to any discussion. However, the question may arise what is meant by the phrase “slavery and the slave trade in all their forms”. It was taken from the Slavery Convention […] adopted in 1926 (Article 1). A Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, was adopted in 1956, and supplements and reinforces the prohibition[…].⁹⁵⁶

The jurisprudence of the ICTR is consistent with the Trial Chamber’s conclusion that the crime of slavery is customary international law.⁹⁵⁷
Third, the offence of slavery is a serious violation, constituting a breach of a rule protecting an important value which involves grave consequences for a victim.
Fourth, the Trial Chamber is also satisfied that the crime of slavery entails individual criminal responsibility. In the Tadic case, the Appeals Chamber stated that customary international law imposes criminal liability for not only serious violations of common Article 3, but also for other general principles and rules on the protection of victims of internal armed conflict.⁹⁵⁸ As slavery constitutes a serious violation of international humanitarian law applicable to internal armed conflict, its violation entails individual criminal responsibility.⁹⁵⁹
The Trial Chamber is satisfied that the offence of slavery under Article 3 of the Tribunal’s Statute is the same as the offence of enslavement under Article 5.⁹⁶⁰ As such, slavery under Article 3 requires proof of the same elements as constitute enslavement under Article 5. Accordingly, throughout this judgment the Trial Chamber will use the term enslavement to refer to both offences.
The Prosecution alleges that the Accused committed enslavement as a violation of both Articles 3 and 5 of the Statute by subjecting the detainees of the KP Dom to forced labour from May 1992 until August 1993.⁹⁶¹ The Prosecution alleges that the enslavement of detainees occurred:

[…] primarily in relation to forced labour. However, it submits that under the formulation accepted by the Trial Chamber in Kunarac, other factors can be taken into consideration in finding the accused guilty of this crime.⁹⁶²

The Trial Chamber is of the view that this pleading identifies the basis of the charge of enslavement as forced labour. The names of detainees forced to work are provided in, and limited to, Schedule E to the Indictment.⁹⁶³ The Trial Chamber makes findings only with respect to these detainees.
To establish the allegation that detainees were forced to work and that the labour detainees performed constituted a form of enslavement, the Prosecution must establish that the Accused (or persons for whose actions he is criminally responsible ) forced the detainees to work, that he (or they) exercised any or all of the powers attaching to the right of ownership over them, and that he (or they) exercised those powers intentionally.⁹⁶⁴
International humanitarian law does not prohibit all labour by protected persons in armed conflicts.⁹⁶⁵ Generally, the prohibition is against forced or involuntary labour.⁹⁶⁶ It is clear from the Tribunal’s jurisprudence that “the exaction of forced or compulsory labour or service” is an “indication of enslavement”, and a “factor to be taken into consideration in determining whether enslavement was committed”.⁹⁶⁷ In essence, the determination of whether protected persons laboured involuntarily is a factual question which has to be considered in light of all the relevant circumstances on a case by case basis. Such circumstances may include the following:

The consent or free will of the victim is absent. It is often rendered impossible or irrelevant by, for example, the threat or use of force or other forms of coercion ; the fear of violence, deception or false promises; the abuse of power; the victim’s position of vulnerability; detention or captivity, psychological oppression or socio -economic conditions.⁹⁶⁸

What must be established is that the relevant persons had no real choice as to whether they would work.
Civilians deprived of their liberty in the context of a non-international armed conflict can nevertheless be made to work under certain circumstances. Article 5(1) of Additional Protocol II sets out the applicable standard, as follows:⁹⁶⁹

In addition to the provisions of Article 4 the following provisions shall be respected as a minimum with regard to persons deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained; […] (e) they shall, if made to work, have the benefit of working conditions and safeguards similar to those enjoyed by the local civilian population.⁹⁷⁰

The permissibility of labour under Article 5 is subject to the condition that such labour is not in violation of the fundamental guarantees laid down in Article 4, quoted earlier.⁹⁷¹ Where those guarantees are violated, the performance of that labour may be treated as an indication of enslavement. With respect to the interpretation to be attached to the provisions of Article 5, the Trial Chamber considers that the word “similar” means that the working conditions and safeguards need not be exactly the same as those enjoyed by the local civilian population. The terms “conditions” and “safeguards” mean that such persons need not necessarily be remunerated by wages for all work they are made to do. The absence of any explicit reference to “wages” in Article 5, in contrast to the explicit requirement that wages be paid in Geneva Convention IV Articles 40, 51 and 95, requires the Trial Chamber to determine on a case by case basis whether labour performed should have been compensated in some way.

2. Findings
(a) Par 5.41 and forced labour
In par 5.41 of the Indictment, it is alleged that during May 1992 the Accused approved decisions to force the detainees listed in Schedule E to the Indictment to work and that, in July 1992, he, in concert with other high-level prison staff, formed and began to supervise a workers’ group of approximately 70 of the detainees with special skills. The Trial Chamber is not satisfied, for the following reasons, that this allegation has been established.
The Accused’s responsibilities as warden included directing the Drina Economic Unit (“DEU”).⁹⁷² Before the war, civilian KP Dom employees and convicts worked in the DEU.⁹⁷³ The DEU, akin to a private company, was closely tied to the publicly run KP Dom, but also functioned independently of it.⁹⁷⁴ Both the State and the DEU – through its business activities - financed the KP Dom.⁹⁷⁵ During the war, the DEU continued to function independently of the KP Dom.⁹⁷⁶ The DEU consisted of various units, the three main productive ones being the Brioni farm, the metal and mechanical workshop (“metal workshop”) and the furniture factory.⁹⁷⁷ By his own account, the Accused was responsible for the different heads of the various units within the DEU.⁹⁷⁸
During the Accused’s administration, labour in the KP Dom and Foca in general was scarce.⁹⁷⁹ In relation to the DEU in particular, the number of convicts available for work was considerably lower than prior to the war. In order to secure the necessary labour, the Accused initially approached Radojica Mladjenovic, President of the Executive Council of Foca municipality. He asked for his assistance in securing civilian craftsmen. A few carpenters were later provided for the furniture factory by assignment-to-work orders, although it is not clear when they were assigned or who they were.⁹⁸⁰ Requiring more workers, the Accused again approached Mladjenovic, asking for more civilians with particular skills,⁹⁸¹ without success.⁹⁸²
Later, at a meeting of the heads of the various units (“directors’ meeting”),⁹⁸³ a decision was made as to the number of men, including KP Dom detainees, needed by each work unit.⁹⁸⁴ The Accused, by his own account, was thus aware of the initial decision to use KP Dom detainees to work.
Following the failure of Mljadenovic to assist the Accused in securing sufficient labour from outside the KP Dom,⁹⁸⁵ and prior to the directors’ meeting, Savo Todovic approached the Accused with a list of detainees composed at the request of the military command from the Tactical Group. The listed detainees were to be put to work for the DEU according to their trades as necessary.⁹⁸⁶ The number of detainees actually put to work for the DEU and elsewhere varied over time, sometimes considerably. 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 the Accused’s administration. This core group of detainees may have numbered between 20 and 45.⁹⁸⁷ The detainees who worked were generally skilled and able to work.
Todovic played a central role in the work done by the detainees. He was in charge of the assignment of work duties, making lists of who would be working where, in co-ordination with the heads of the various units of the DEU and others, including the military police from, for example, Kalinovik.⁹⁸⁸
After the director’s meeting, the Accused also made a request to Mladjenovic for a driver and someone to fix the boiler room. This request was granted and assignment -to-work orders were given to Krsmanovic and Milan Pavlovic, both of whom were at that time at the front lines.⁹⁸⁹
The evidence establishes that the decision to use detainees to work for the DEU was taken fairly soon after the Accused’s arrival at the KP Dom.⁹⁹⁰ Whether that decision envisaged the detainees working only in the DEU is unclear. However, the Trial Chamber is satisfied that some of the detainees did eventually work in positions not usually falling within the DEU’s functions.
It has not been established that a decision was taken to force the detainees to work. The Accused gave evidence that, upon having been shown the list of detainees who could work in the DEU by Todovic, he specifically asked whether the detainees volunteered to work. Todovic’s reply was that they volunteered because it was better than spending time in the KP Dom.⁹⁹¹ The Accused stated that he himself would have preferred to work rather than “sitting there, let alone being in a detention unit”.⁹⁹²
The Prosecution alleges that most of the Schedule E detainees were kept imprisoned from summer 1992 until 5 October 1994 for the primary purpose of being used for forced labour.⁹⁹³ The Trial Chamber is not satisfied that this allegation has been established. The direct evidence relating to this allegation centres on an incident when some of the metal workers were exchanged without the knowledge of their supervisor, Relja Goljanin.⁹⁹⁴ Detainees Muhamed Lisica, FWS-249 and Ekrem Zekovic gave evidence, which is accepted by the Trial Chamber, that they worked in the metal workshop and that sometime in 1992 some of the detainees with whom they worked in the metal workshop were exchanged. Goljanin had not been told that this was to occur and he was upset that his workers had been taken. Following this, Todovic, and perhaps Goljanin, compiled a list of names of the remaining metal workshop workers.⁹⁹⁵ The Prosecution case was that this list was made to prevent any of the other metal shop workers being taken for exchange. The evidence was unclear, however, as to what happened to the list which was made. Muhamed Lisica gave evidence that a list of the names of all the metal workers was put up in the hallway of the administration building. However, he could not recall whether he saw the list before or after the exchange, raising substantial questions as to what the purpose of such a list was had it been put up there. There was also no evidence to establish that the Accused knew or should have known anything about a list of workers drawn up to prevent further exchanges of metal workers. He cannot, therefore, be criminally responsible as a superior pursuant to Article 7(3) of the Statute. Nor was there any evidence as to whether any one of the remaining metal workers was in fact later exchanged. As a result, the Trial Chamber is not satisfied that the Prosecution has established that there was a plan to keep detainees imprisoned for the primary purpose of using them as labour or that the Accused was in any way responsible for or involved in a plan to keep any detainees at the KP Dom for the primary purpose of being used for forced labour.
(b) Par 5.42 and forced labour
In par 5.42 of the Indictment, the Prosecution alleges that the guards of the KP Dom called out members of the workers’ group on a daily basis and forced them to work inside and outside the camp, from 7.00 am to at least 3.00 or 4.00 pm.⁹⁹⁶ On occasion, Todovic or Relja Goljanin also called the detainees from their rooms. The Trial Chamber is satisfied that detainees were called out to work from lists prepared by Savo Todovic. Detainees worked Mondays to Fridays starting at about 7.00 am and finishing about 3.30 pm.⁹⁹⁷ Detainees who worked on the house of the Accused started at around 7.30 or 8.00 am and worked until about 5.00 or 5.30 pm.⁹⁹⁸ All working detainees had regular breaks of about half an hour at around 10.00 am for snacks and a lunch break of about an hour. Sometimes they had additional breaks.⁹⁹⁹ Some detainees worked in the compound, others outside, including in other towns. The names or assigned numbers of those who worked outside the compound were taken down as they left the compound in a register by the guard on duty at the gate. Upon returning to the compound the detainees were searched.¹⁰⁰⁰
The Prosecution alleges that the detainees who were called out to work were forced to do so and that their work was involuntary and unpaid. It is claimed that even ill or injured detainees were forced to work, that those who refused were sent to solitary confinement and that when working they were guarded by the regular prison guards of the KP Dom or soldiers from outside the KP Dom.¹⁰⁰¹ Having considered all the relevant evidence, the Chamber is not satisfied that 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. Whether a particular detainee was forced to work is to be assessed on an individual basis, as to whether he had no real choice as to whether he had to work.
In considering whether an individual detainee was forced to work, the Trial Chamber considers the following factors to be relevant: the substantially uncompensated aspect of the labour performed, the vulnerable position in which the detainees found themselves, the allegations that detainees who were unable or unwilling to work were either forced to or put in solitary confinement, claims of longer term consequences of the labour, the fact of detention and the inhumane conditions in the KP Dom.
The Trial Chamber is satisfied that, except for the extra food which the working detainees received and the cigarettes that some of them sometimes received, their work was substantially uncompensated.¹⁰⁰² By the Accused’s own account, the KP Dom did not have enough money to pay them.¹⁰⁰³ The Trial Chamber is also satisfied that the working detainees were generally under armed supervision.¹⁰⁰⁴
The Trial Chamber is not satisfied that the Prosecution has established that those detainees who refused to or could not work were sent to solitary confinement during the Accused’s administration. The evidence adduced by the Prosecution to demonstrate this allegation was equivocal. Muhamed Lisica gave evidence that on one occasion, while he was being transported to the hospital to work, he refused to work and was sent to solitary confinement. However, it was not established that he was sent to solitary confinement because of that refusal. Upon his return to the KP Dom, he was searched and a letter was discovered in his possession which he had been asked by a fellow Muslim detainee to take to a relative.¹⁰⁰⁵ It is unclear whether he was sent to solitary confinement by Savo Todovic for having refused to work or for having carried the letter.¹⁰⁰⁶ It is also unclear when this alleged incident took place, and it may have been after the Accused’s administration.¹⁰⁰⁷ FWS-73 once refused to work,¹⁰⁰⁸ and he said that Todovic went to his room and kicked him all the way to work.¹⁰⁰⁹ There is, however, no evidence as to when this alleged incident took place, and it could well have happened after the Accused’s administration.¹⁰¹⁰ FWS-71 said that he had been forced to go to work in the mine once by Todovic when he was ill, but this took place in October 1993 after the Accused’s administration.¹⁰¹¹ FWS-71 said that, if detainees could not go to work, they had to go to a doctor or medical technician. He recalled Fehim Dedovic being taken away a couple of times to be beaten in the isolation cell for not being able to work. Again, it is unclear when this alleged incident took place. The Prosecution also alleged that FWS-198 was sent to solitary confinement when he dared to refuse to work.¹⁰¹² However, FWS-198’s evidence was that he was sent to solitary confinement without any reason for five to six days, after having asked Todovic whether he could work. This allegation is therefore not established.
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 the Accused’s administration. Many of the Prosecution’s witnesses expressed their own conclusions that this was the case, but no attempt was made to demonstrate the factual basis for those conclusions or that they applied to the period of the Accused’s administration. When asked whether he refused, rebelled or expressed disapproval when told that he had to work, FWS-249 responded that he thought that to do so would have been a big risk and that it did not occur to him to refuse.¹⁰¹³ FWS-144 explained a statement he made, that Todovic could force even sick persons to work and that nobody could overturn his decision, by saying that the detainees had no possibility of refusing to go to work because that would only have worsened their position in the camp.¹⁰¹⁴ Rasim Taranin also asserted that he could not do or say anything with respect to whether he wanted to load and unload flour.¹⁰¹⁵ When asked whether detainees who were called out to work could refuse, Dzevad Lojo expressed his opinion that, unless one had serious medical reasons, it would have been very risky to have refused, for a sanction of solitary confinement or forced labour would follow.¹⁰¹⁶ He said he knew that there were cases when the head officials made those who were ill go out and work.¹⁰¹⁷ Safet Avdic similarly recalled overhearing or being told that Todovic told detainees that they had to work despite being ill.¹⁰¹⁸ Neither of these two witnesses indicated when they learnt of detainees being made to work despite being ill, and no attempt was made to establish that it happened during the Accused’s administration.
A finding that a specific detainee or detainees in general were forced to work is not safely available from conclusions stated by witnesses without some indication of the factual basis upon which these conclusions were reached. Evidence of a conclusion drawn by a witness, without more, does not establish beyond reasonable doubt that the conclusion coincided with the fact to be established. The circumstances and conditions under which the detainees were imprisoned from 1992 to 1994 in the KP Dom varied sufficiently for the Prosecution to have been required to elicit, for example, specific examples, further particulars, including with respect to identified time-periods, or explanations with respect to such evidence from witnesses. Evidence from its own witnesses which contradicted the Prosecution’s general assertion also made more detailed testimony from witnesses necessary. For example, Safet Avdic, apparently early in 1992, asked not to be assigned to hard labour for health reasons and his request was granted.¹⁰¹⁹ Another witness, FWS-182, testified that, after he almost fainted when unloading flour, an old Serb friend of his who was in charge let him return to the KP Dom. On another occasion when FWS-182 could not work in the kitchen, he was allowed to recover before he started cleaning the compound.¹⁰²⁰ It is not clear when these incidents relating to FWS-182 took place. The beliefs and fears of the detainees, in particular in the context of the general inhumane conditions and atmosphere in the KP Dom, are of course relevant to a determination of whether they worked voluntarily, but a reliance solely on such unsupported conclusions expressed by the witnesses would not be safe in the circumstances outlined.
The physical consequences of the work on the health of the detainees, if any, also constitutes a factor relevant to the determination as to whether someone was forced to work. However, the evidence adduced on this point is also equivocal. FWS-249 gave evidence that he and the other working detainees were exhausted after work, and that he personally suffers from back problems.¹⁰²¹ He said that his doctors assumed that these problems resulted from the physical work at the KP Dom.¹⁰²² However, as established above, the Trial Chamber is not satisfied that his back problems are a direct consequence of the labour he performed while at the KP Dom.¹⁰²³ FWS-142 testified that he was exhausted and had no strength when asked in September 1993 by Savo Todovic whether he would work in the Miljevina mine.¹⁰²⁴ This incident took place after the Accused’s administration.

(c) Par 5.43 and forced labour
In par 5.43 of the Indictment it is alleged that the detainees had to work in the kitchen within the KP Dom.¹⁰²⁵ The Prosecution indicated that it does not charge as enslavement the cleaning tasks within the compound and the work in the kitchen such as washing dishes, slicing bread, distributing food and cleaning the kitchen, all alleged to have been done by the Muslim detainees.¹⁰²⁶ The Chamber regards this indication as a withdrawal of those charges.¹⁰²⁷ This includes the allegation that FWS-54 was forced to work. ¹⁰²⁸
The Trial Chamber is not satisfied that the allegation that detainees were forced to work in the furniture factory¹⁰²⁹ has been established. The evidence led by the Prosecution upon this issue was of very poor quality. Little attempt was made to establish that, in truth, the detainees were forced to work, and reliance was placed almost entirely upon the un-supported belief of the detainees that they were obliged to work. Some were asked to give the basis of their belief, but no one was asked, for example, whether he objected to working or whether he had been told by a person in authority that he would be punished if he did not. In many instances, no effort was made to establish that the particular detainee worked during the period of the Accused’s administration. Moreover, 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. The Trial Chamber does not accept that such a motive, without more, amounts to the detainees being forced to work. The issue in every case is as already stated, whether the particular detainee had lost his choice to consent or to refuse the work he was doing.
The detainees started to work in and for the furniture factory sometime around September or late 1992.¹⁰³⁰ Between approximately six to fifteen people worked there.¹⁰³¹ KP Dom detainees working in the factory during the Accused’s administration included FWS-198, FWS-66,¹⁰³² Muharem Bacvic,¹⁰³³ Sulejman Pejkusic, Sacir Muratovic, FWS-138, Ivan Soldan and Trako or Trakic.¹⁰³⁴ The work included making furniture, such as bookshelves, cutting fabrics for upholstery and upholstering furniture, loading furniture onto trucks and assembling wardrobes at the local hospital.¹⁰³⁵ The detainees worked Monday to Friday for a period of eight hours each day.¹⁰³⁶ Miladin Matovic, who received a work assignment at the KP Dom and was eventually transferred by Mitar Rasevic to work within the factory, guarded these detainees from sometime in May or June 1992 until September 1993.¹⁰³⁷ As compared to the pre-war situation, the furniture factory operated at about ten percent of its capacity.¹⁰³⁸
The Trial Chamber is not satisfied that Dzevad Lojo, Ekrem Zekovic, FWS-71 and FWS-215 were forced to work in the factory or that they worked there during the Accused’s administration. Lojo started working in the furniture factory sometime in August 1993,¹⁰³⁹ Zekovic’s work began sometime in late August or early September 1993,¹⁰⁴⁰ while FWS-71 worked during parts of 1992 and the whole of 1993.¹⁰⁴¹ During that time, which may well have been after the Accused’s administration, he also worked in the furniture factory.¹⁰⁴² FWS-215 was assigned to work duty in the furniture factory, possibly sometime in mid-1993, but the evidence was not clear.¹⁰⁴³ With respect to FWS-66, the evidence was that he volunteered to work. He was assigned to work at the furniture factory in spring of 1993, prior to which he asked Todovic for work so as not to be locked up in a room.¹⁰⁴⁴ FWS-198 gave evidence that he started working in the factory in April 1993, after being told to do so by Todovic,¹⁰⁴⁵ and that he continued to work until October 1993.¹⁰⁴⁶ He expressed the view that, once a detainee was selected to work, he could not refuse because of the fear of ending up in solitary confinement.¹⁰⁴⁷ The reference to the fear of solitary confinement was to the alleged instance when Muhamed Lisica was sent to solitary confinement for having refused to work.¹⁰⁴⁸ The Trial Chamber has already determined that it is not clear when and for what reason Lisica was put in solitary confinement.¹⁰⁴⁹ FWS-198’s reference to this alleged incident is therefore equivocal. It could be interpreted in different ways, including that Lisica was put in solitary confinement prior to April 1993, or that he honestly believed that Lisica was put in solitary confinement for refusing to work. In the light of this ambiguity, it has not been demonstrated beyond reasonable doubt that FWS-198 was forced to work in the furniture factory during the Accused’s administration.
With respect to Muharem Bacvic, Sacir Muratovic, FWS-66 and FWS-138, the evidence is insufficient to accept that they were forced to work in the furniture factory. Sulejman Pejkusic, Ivan Soldan and Trako or Trakic are not listed in Schedule E, but in any event the evidence relating to their work is insufficient to accept that they were forced to work in the furniture factory.
The Trial Chamber is not satisfied that the allegation that within the KP Dom the detainees had to work in the metal workshop, repairing army vehicles or looted cars, has been established. ¹⁰⁵⁰ This work began sometime in the second half of May 1992.¹⁰⁵¹ Workshop related work was carried out in and outside the workshop, including in the town at the bakery, the Zelengora hotel and the hospital, as well as in Miljevina and Velecevo.¹⁰⁵² The work involved repairing KP Dom vehicles,¹⁰⁵³ and sometimes the vehicles of private individuals,¹⁰⁵⁴ locksmith tasks¹⁰⁵⁵ and general maintenance inside and outside the KP Dom, including on the farm.¹⁰⁵⁶ As compared to the pre-war situation, the metal workshop produced little. For the most part it operated to maintain and service existing facilities and equipment.¹⁰⁵⁷ The number of people working in and for the workshop numbered between about six and fifteen.¹⁰⁵⁸ The KP Dom detainees who worked in the workshop included FWS-249, Hamdo Hadic or Hadzic, Ekrem Zekovic, FWS-144, Muhamed Lisica and Rasim Taranin.¹⁰⁵⁹ They generally worked the usual working hours. The people working in the workshop were mostly skilled.¹⁰⁶⁰ Relja Goljanin was the supervisor of the workshop.¹⁰⁶¹ One guard, or sometimes two, guarded the detainees in the workshop.¹⁰⁶² If taken to work outside of the workshop, they were usually guarded by KP Dom guards.¹⁰⁶³ When they worked in the compound itself, guards did not usually escort them.¹⁰⁶⁴ Apart from a snack, which all the KP Dom detainees who worked received, and cigarettes that Goljanin and sometimes the guards gave them,¹⁰⁶⁵ 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.¹⁰⁶⁶
The Accused visited the workshop, once to give instructions with respect to certain work,¹⁰⁶⁷ and some of the detainees spoke to him while he was there.¹⁰⁶⁸
Taranin was told to go to the workshop, presumably sometime in 1992,¹⁰⁶⁹ because he is a mechanic.¹⁰⁷⁰ He was asked whether he chose to work in the metal workshop.¹⁰⁷¹ He responded that there was no choice, that you had to work where assigned. In his view, being in a camp meant that one had no choice but to do what one was told.¹⁰⁷² He was not asked whether he objected to working and no evidence was given as to the nature or conditions of the work he did. It was the obligation of the Prosecution to make its evidence clear, but it did not do so. In the circumstances, the Trial Chamber is not satisfied that it has been established that Taranin was in fact forced to work in the workshop.
FWS-249 started working in the metal workshop around early July 1992.¹⁰⁷³ The equipment with which he was required to work was obsolete and, to compensate for this, additional physical effort was required. The off-loading from trucks of heavy furniture and the changing of tyres was challenging physical work.¹⁰⁷⁴ At the end of the working day he was exhausted.¹⁰⁷⁵ FWS-249 was asked in a general way whether he was forced to work.¹⁰⁷⁶ He responded that it was without doubt forced labour, explaining that it was such because a guard specifically called him out to work from a list.¹⁰⁷⁷ Later, in response to questions as to whether he refused, rebelled or expressed any disapproval when told that he would work, he expressed the opinion that to have done that would have been a big risk and it did not occur to him to refuse.¹⁰⁷⁸ The Trial Chamber has already considered the evidentiary value of FWS-249’s subjectively expressed opinions about whether the work he undertook was forced.¹⁰⁷⁹ It is clear that FWS-249 obviously felt that he was forced to work. However, in the absence of any indication that during the Accused’s administration he did not want to work, or additional evidence regarding the nature and conditions of the work he did such as to indicate that he worked involuntarily, the substantive reasons advanced for his view that he was objectively forced to work is an insufficient basis for the Trial Chamber to find that he was in fact forced to work. It was not established that he lost his real choice as to whether he would work, whatever his apparent belief that he had no choice. As such, it has not been demonstrated that FWS-249 was forced to work in the metal workshop during the Accused’s administration.
Ekrem Zekovic worked in the metal workshop from mid-July 1992 until he tried to escape from the camp in July 1993.¹⁰⁸⁰ When asked a general question as to whether he volunteered or was forced to work, he responded that he was a volunteer, because to work meant an important additional meal.¹⁰⁸¹ The Trial Chamber is not satisfied that it has been demonstrated that he was forced to work in the metal workshop. The desire for additional food, by itself and without more, did not deny his choice as to whether he would work.
FWS-144 worked in the metal workshop from August 1992 until his release in 1994.¹⁰⁸² On being asked whether he joined the group of metal workers voluntarily, the witness answered as follows : “It looked voluntary. If you look at it, people were asking to leave these cells because they were starving. It seemed that we were all struggling for these jobs to work outside the compound. Nevertheless, this was forced labour. However, we all struggled on account of our hunger because this gave people an extra meal, all of those who were in these work groups”.¹⁰⁸³ He expressed the opinion that the detainees had no possibility of refusing to work once Todovic directed them to do so, because that would have worsened their position in the camp.¹⁰⁸⁴ The evidentiary value of this expressed view has already been considered by the Trial Chamber.¹⁰⁸⁵ Again, the Trial Chamber does not consider that, by itself and without more, the desire for additional food denies to a detainee his choice as to whether he would work. Accordingly, the Trial Chamber is not satisfied that it has been established that FWS-144 was forced to work during the Accused’s administration.
Muhamed Lisica started working at the end of April or early May 1992, and he worked until his release in October 1994.¹⁰⁸⁶ He testified that work in general was voluntary, in the sense that it was better than being locked up, since a worker could expect extra food, cigarettes, contact with Serbs and information.¹⁰⁸⁷ He said that working helped him to survive the conditions in the KP Dom. He had also been told by Slavko Ivanovic, in about June 1992, that the working detainees were protected.¹⁰⁸⁸ Although he enjoyed the benefits that came with working, as a result he was exhausted all the time, sometimes more, sometimes less, depending on whether he could go to the hospital to get more food. In addition, he found metalworking difficult, for a myriad of reasons.¹⁰⁸⁹ The Trial Chamber is not satisfied that this evidence establishes that Lisica was forced to work in the metal workshop.¹⁰⁹⁰
With respect to the other detainees allegedly forced to work in the metal workshop, the Prosecution failed to adduce any evidence concerning the kind or conditions of work or whether they were forced to work. As such, it has not been established that these detainees were forced to work in the metal workshop during the Accused’s administration.
Uzeir Aganovic worked in the metal workshop during 1992 and 1993, as did Berberkic or Berberovic, a tinsmith,¹⁰⁹¹ and Munib Hadzic.¹⁰⁹² Munib Hadzic was in the working group until he was exchanged.¹⁰⁹³ Other detainees who spent periods of time working in the metal workshop included FWS-249, ¹⁰⁹⁴ Suad Islambasic,¹⁰⁹⁵ Ismet “Karasi” or “Karas” Karahasanovic,¹⁰⁹⁶ Sefko Kubat ¹⁰⁹⁷ and Asim and Ramiz Maljanovic, two half-brothers. FWS-77 and “Dule” Djurovic also worked in the metal workshop, but they are not listed on Schedule E.¹⁰⁹⁸ FWS-249 claimed that all of these persons had to work without explaining why he had come to that conclusion.¹⁰⁹⁹
The Trial Chamber is not satisfied that it has been established that the detainees in the workshop also repaired looted cars. FWS-249 gave evidence that he saw Zoran Vukovic coming to the metal department in a truck owned by Senad Sahinpasic, a Muslim, and that Vukovic had probably taken it after Sahinpasic left it in Foca.¹¹⁰⁰ Vukovic brought it to the KP Dom to have it serviced.¹¹⁰¹ The evidence is equivocal, since it cannot be concluded beyond reasonable doubt either when this incident took place or that the truck was without legal title in the hands of someone else.
(d) Par 5.44 and forced labour
In par 5.44 of the Indictment, it is alleged that the detainees were forced to work on the farm at the prison outpost Brioni.¹¹⁰² The Trial Chamber is not satisfied that this allegation has been established.
Some KP Dom detainees started working on the farm in the first half of 1992.¹¹⁰³ They included FWS-66, FWS -73, FWS-89, Muhamed Lisica, FWS-249 and FWS-71.¹¹⁰⁴ In addition, most of the Serb convicts worked on the farm.¹¹⁰⁵ Various crops were grown at the farm outpost which also had livestock, including cows, pigs and chickens.¹¹⁰⁶ The work performed by the detainees included working on the cornfields, sowing and planting various crops, cleaning chicken coops and pigsties and digging holes.¹¹⁰⁷ The detainees also undertook seasonal work away from the farm, such as collecting hay for the cows and going out to the meadows to cut grass.¹¹⁰⁸ These tasks were performed under the supervision of Novica Majovic,¹¹⁰⁹ the supervisor of the farm.¹¹¹⁰ At the time the detainees worked, the farm operated at about 30 percent of its pre -war capacity.¹¹¹¹ The foremen of the farm were Rade Begenisic¹¹¹² and Vojlko Kovac.¹¹¹³ They were employed by the KP Dom and sometimes wore civilian, sometimes military, clothes.¹¹¹⁴ In both 1993 and 1994, Radojica Tesovic came to the farm on occasion to see how their work was progressing.¹¹¹⁵ Vojislav Maksimovic once came to the farm, and possibly Todovic showed him around.¹¹¹⁶ Some of the detainees saw the Accused at the farm.¹¹¹⁷ He came to inspect their work, and he told the detainees to take care not to get hurt.¹¹¹⁸ The Accused was observed on occasion walking around either on his own or with Rasevic or Todovic.¹¹¹⁹ The farm was guarded and one of the guards was identified as Zoran Mijovic.¹¹²⁰ The farm workers received more eggs, meat and milk than the rest of the detainees.¹¹²¹
It has not been established that any of the detainees were forced to work. The only evidence before the Trial Chamber with respect to the work that FWS-66 did on the farm is that he worked in the cornfields from time to time.¹¹²² It has not been established that he was forced to do this work.¹¹²³ FWS-89 was taken to the farm to work in the spring of 1993 and stopped working there in September 1993.¹¹²⁴ There is no evidence that he was forced to work. He was not even asked whether he worked voluntarily or not. Lisica occasionally did metal work on the farm, and the finding that he was not forced to work there has already been made.¹¹²⁵ FWS-249 also worked, perhaps ten times, on the farm.¹¹²⁶ Not only is there no evidence as to what he did on the farm, but it is also unclear when he worked there. The only evidence with respect to Mujo Dudic is that he did at some time work at the farm.¹¹²⁷ This is insufficient to establish that he was forced to work. Nor has it been established to the satisfaction of the Trial Chamber that FWS-198, FWS-73 and FWS-71 worked on the farm at all during the Accused’s administration.¹¹²⁸
It is alleged that the detainees were forced to work in mills and in the Miljevina mine.¹¹²⁹ This allegation has not been established. The only evidence is that of FWS-86,¹¹³⁰ which was of the most indirect nature and it did not establish what was involved in that work. The work by detainees in the Miljevina mine was done after the Accused’s administration.¹¹³¹
It is alleged that the detainees were forced to clean up the rubble of damaged buildings at various places in Foca.¹¹³² This allegation has not been established to the satisfaction of the Trial Chamber. There was no evidence adduced by the Prosecution to show that this was forced work.¹¹³³
With respect to the allegation that, during the winter of 1992 to 1993, detainees were forced to repair the private house of the Accused, ¹¹³⁴ the Chamber is not satisfied that it has been established.
The Accused’s house, which was burnt down at the beginning of the fighting in Foca, was located in the Donje Polje neighbourhood.¹¹³⁵ Sometime towards the end of 1992,¹¹³⁶ and in early 1993,¹¹³⁷ some KP Dom detainees intermittently worked on this house.¹¹³⁸ The group of Muslim detainees working on the house included Ekrem Zekovic, FWS-144, Muhamed Lisica, FWS-250, FWS-73, Mustafa Telo, Aziz Telo, “Zanga” Hajric, Atif Jaserevic, a Dzemo or Dzemal and “Polani”.¹¹³⁹ Two, and perhaps more, Serb civilian craftsmen, including Bogdan Kostic, also worked at the house or gave advice on work to be done.¹¹⁴⁰ KP Dom guards drove the Muslim detainees from the KP Dom to the house and back.¹¹⁴¹ Amongst other things, the roof was worked on, rubble was removed, the walls were covered and metal railings and a staircase were made.¹¹⁴² Milosav Krsmanovic removed the rubble from the house with a truck.¹¹⁴³ Four Muslim men, including Mustafa Telo, his son, and the restaurant owner, “Polani ”, loaded the rubble.¹¹⁴⁴ Krsmanovic also took construction material, including sand, gravel and cement, to the house where it was unloaded.¹¹⁴⁵ Zekovic, FWS-144 and Lisica made a metal staircase and railing at the KP Dom, which they later installed in the house.¹¹⁴⁶ Relja Goljanin told FWS-144 to make metal doors at the KP Dom for the house, which he and a fellow Muslim detainee later mounted. He also made a metal skeleton for a bar on the ground floor of the house.¹¹⁴⁷ The work on the house usually started at around 7.30 or 8.00 am and lasted till about 5.00 or 5.30 pm.¹¹⁴⁸ Spomenko Krnojelac, the son of the Accused, was always present at the house,¹¹⁴⁹ apparently guarding the detainees.¹¹⁵⁰ He sometimes wore a camouflage uniform,¹¹⁵¹ and he may have had a pistol.¹¹⁵² A KP Dom guard or guards may also have been present on occasion.¹¹⁵³ Bozidar Krnojelac, the other son of the Accused, was seen at the house on occasions.¹¹⁵⁴ The Accused went to the house a few times.¹¹⁵⁵ The Muslim detainees who worked at the house were not mistreated at any time while working there.¹¹⁵⁶ One witness described his interaction with the Accused as good and decent, with the conversation relating exclusively to the work they were doing.¹¹⁵⁷ Another witness gave evidence that, when the Accused went to the house, he would ask whether any material was needed and strike up conversations with them while they were waiting for the vehicle which would take them back to the KP Dom.¹¹⁵⁸ Another said that, although Goljanin gave him his tasks, he also approached the Accused when he was there or his sons to discuss the work. He said that he was glad to see his friend Spomenko Krnojelac, and he often talked with him about how the work should be done.¹¹⁵⁹ The detainees agreed that working on the Accused’s house was generally better than working elsewhere. They received better and more food and drinks, including coffee, from the Accused’s wife, Slavica Krnojelac.¹¹⁶⁰ In addition, some of them also received beer,¹¹⁶¹ brandy¹¹⁶² and cigarettes.¹¹⁶³ At the time, food was not widely available in the shops,¹¹⁶⁴ and what Slavica Krnojelac prepared for the detainees came from the countryside, sent by her brother-in-law, or was received by her as aid from the Red Cross and the Orthodox church.¹¹⁶⁵ Giving those visiting and working on one’s house coffee or brandy is a sign of hospitality in Bosnia and Herzegovina,¹¹⁶⁶ but this does not detract from the good treatment which the Muslim detainees received from the Krnojelac family while working on the Accused’s house.
With respect to the work carried out by detainees on the Accused’s house, the Prosecution failed to eliminate the reasonable possibility that their labour was legitimately provided by the municipality, and they were not forced to work by the Accused. The Accused testified that he went to see a municipal official, Radovic, who was in charge of displaced persons and refugees. He requested that he be supplied with plastic or tarpaulin to cover the remains of his house to stop it from being further damaged.¹¹⁶⁷ At the time, the municipality had begun to receive humanitarian aid, so he applied for assistance in having his house repaired.¹¹⁶⁸ The Accused was told that, although there was no such material available at the time, the municipal officer would inquire further and keep him informed.¹¹⁶⁹ Following this, the Accused was told that people were taken to his house to work on it. He did not know who decided to send the workers, but he concluded that it most probably was the civilian defence staff and the municipality.¹¹⁷⁰ The evidence of other witnesses supported the Accused’s claim. Slavica Krnojelac gave evidence that she thought that the work on the house was organised through the municipality.¹¹⁷¹ Miladin Matovic thought that the Crisis Staff and municipal authorities issued an order that detained persons be used to carry out works on the repair of damaged houses,¹¹⁷² and his evidence on this point was not challenged by the Prosecution.¹¹⁷³ Spomenko Krnojelac told Witness B, a mason, that he received some help from the executive committee of the municipality to repair the house.¹¹⁷⁴ His evidence on this issue was also not challenged by the Prosecution.
The Accused paid for the metal doors made at the KP Dom and for something else, which may have been some furniture or for the manual labour involved in making the staircase, although this is unclear.¹¹⁷⁵ He did not pay for the rest of the work.¹¹⁷⁶
It has not been established to the satisfaction of the Trial Chamber that any of the detainees were forced to work on the Accused’s house or that, if there were any form of compulsion, it was the responsibility of the Accused. Ekrem Zekovic testified that he volunteered for work in order to get an additional meal, and, as with respect to his work in the metal workshop, the Trial Chamber is accordingly not satisfied that he was forced to work on the Accused’s house.¹¹⁷⁷ Similarly, the Trial Chamber is not satisfied that FWS-144 or Muhamed Lisica were forced to work on the Accused’s house, for the reasons expressed in relation to their work in the metal workshop. FWS-144 acknowledged that detainees requested to be assigned to work and that it was his opinion that they could not refuse to work.¹¹⁷⁸ Lisica testified that work at the KP Dom was better than being locked up without contact and without sufficient food, and that it was better than staying in the room. The Trial Chamber is satisfied that this applies also to the work performed on the Accused’s house.¹¹⁷⁹
The Trial Chamber is not satisfied that FWS-73, Aziz Telo, Atif Jaserevic and Mustafa Telo were forced to work on the Accused’s house. FWS-73’s evidence that he was kicked to work once for having refused to work has already been addressed. It is not clear what work it was to which that evidence related,¹¹⁸⁰ and there is no other relevant evidence in relation to his work on the Accused’s house. Apart from the evidence given that Aziz Telo and Atif Jaserevic worked on the Accused’s house, there is no evidence as to whether they were forced to work. With respect to Mustafa Telo, the only evidence is that of Milosav Krsmanovic, who claimed that this detainee had told him that he volunteered for the work and that he had words of praise for the entire Krnojelac family.¹¹⁸¹ FWS-250, “Zanga” Hajric, Dzemo or Dzemal and “Polani” are not listed in Schedule E, and as such no findings are made as to whether they were forced to work.
With respect to the allegation that detainees were forced to install a bar in the house of one of the Accused’s sons,¹¹⁸² the Trial Chamber is not satisfied that it has been established. FWS-73 gave evidence that he and a fellow detainee and plumber, “Zenga” Hajric,¹¹⁸³ were working on water pipes for about two or three days in a café of Bozidar Krnojelac.¹¹⁸⁴ It is unclear whether this was the café on the ground floor of the Accused’s house. It is probable that it was, as there was no evidence that Bozidar Krnojelac owned a café separate from the business he operated from the Accused’s home. However, FWS-73’s evidence makes no reference to when this work was done. Other evidence of a bar being worked on by KP Dom detainees clearly relates to the bar in the café on the ground floor of the burnt down house of the Accused.¹¹⁸⁵ This work was part of the work done on the Accused’s house and the findings made with respect to that work also apply here.¹¹⁸⁶
With respect to the allegation that detainees were forced to furnish a store for one of the sons of the Accused,¹¹⁸⁷ the evidence was ambiguous and there is no evidence as to when this work was undertaken.¹¹⁸⁸ There was no evidence given in support of the allegation that the detainees were forced to do it. The Trial Chamber is not satisfied that this allegation has been established.
FWS-144 gave evidence that, at some time, Relja Goljanin directed him to make metal shelves for the office or outlet of Bozidar Krnojelac which was located in the centre of Foca.¹¹⁸⁹ Muhamed Lisica assisted in making the metal shelves in the workshop.¹¹⁹⁰ FWS-144 went to the outlet on one occasion to take the measurements for the shelves, but neither he nor Lisica mounted the shelves.¹¹⁹¹ Bozidar Krnojelac gave evidence that he was allocated business premises in around May 1994, from where he sold foodstuffs.¹¹⁹² He said that he received second-hand shelves for this shop from a company owned by a Foca soccer referee, Zale.¹¹⁹³ Sometime after May 1994, when the Accused was unemployed, he asked Goljanin whether the shelves could be straightened at the KP Dom, work he claimed that he paid for.¹¹⁹⁴ Whether or not the work was paid for, it was not done during the Accused’s administration. Bozidar Krnojelac denied that Muslim detainees from the KP Dom made the shelves or rack or took measurements for them.¹¹⁹⁵ FWS-73 gave evidence that he and a fellow detainee and plumber, “Zenga” Hajric,¹¹⁹⁶ were taken by the Accused to a shop owned by Bozidar Krnojelac to do some “little things” for about an hour or two.¹¹⁹⁷ Bozidar Krnojelac and the Accused were present in both the café and shop.¹¹⁹⁸ Conversation between all present took place, and the Accused gave FWS-73 brandy to drink.¹¹⁹⁹ The Trial Chamber is not satisfied that this evidence establishes the allegation made.
It is alleged in the Indictment that the detainees were ordered by prison staff to assist Serb soldiers in looting Muslim houses and mosques.¹²⁰⁰ This allegation has not been established to the satisfaction of the Trial Chamber. During the first half of May 1992, a group of about seven to twelve detainees went to pull down a multi-ethnic school next to the health centre in Aladza, near the former Aladza mosque.¹²⁰¹ Rasim Taranin sometimes assisted in this work.¹²⁰² They demolished the school, taking off the roof tiles and timber and other construction materials, apparently to build a church.¹²⁰³ Their work lasted for about eleven or twelve days, during which time the Aladza mosque was destroyed on 15 May 1992.¹²⁰⁴ FWS-249 gave evidence that vehicles with looted or stolen items from an unidentified source came to the KP Dom.¹²⁰⁵ On about five or six unidentified occasions, Relja Goljanin brought people from the metal workshop to collect machinery from Muslim shops.¹²⁰⁶ A kiosk belonging to a friend of his, Fahma Odobasic, was also brought to the KP Dom.¹²⁰⁷ Assuming that the work on the school can be brought under the allegation made in the Indictment, the evidence adduced does not establish to the satisfaction of the Trial Chamber that the school was looted. With respect to the evidence of FWS-249, there is no indication as to just when these incidents are alleged to have taken place.
(e) Par 5.45 and forced labour
In par 5.45 of the Indictment, it is alleged that detainees were taken to the front lines to perform work, such as digging trenches or building barracks.¹²⁰⁸ The Trial Chamber is not satisfied that this allegation has been established. Two witnesses testified concerning different incidents where KP Dom detainees were supposedly made to work on the front lines. After his detention in the KP Dom, Dzevad S Lojo ¹²⁰⁹ was told that a group of four or five detainees were taken sometime in September or October 1992 for about 20 days to military positions facing Gorazde.¹²¹⁰ It is alleged that there they made dugouts as part of preparations for the fortification of lines for the forthcoming winter.¹²¹¹ It was his view that, “in a manner of speaking”, there was no coercion to make detainees work and that the group referred to was not physically ill-treated.¹²¹² Muhamed Lisica heard that the group had been close to the front lines where they gathered hay for the farm and that they drove trucks.¹²¹³ He also gave evidence that Mujo Hodzic was taken away with a group of 15 or 20 people during the autumn of 1992. ¹²¹⁴ When they returned two months later, Hodzic told him that they had been taken to the front line to dig some trenches and that they had to sleep with Serb soldiers in barracks.¹²¹⁵ The nature of this particular hearsay evidence is insufficient to make a finding beyond reasonable doubt. For example, it is not known what the exact nature of the alleged work was, where exactly it was done, and whether the detainees were exposed to any danger – all of which are factors which may go to the issue of whether any of the detainees were forced to work. The Accused denied having any knowledge of detainees having been taken to the front lines to perform work such as digging trenches or building barracks.¹²¹⁶
With respect to the allegation that, from around June 1992 until October 1992, the detainee FWS-141 had to drive soldiers and material to the front lines,¹²¹⁷ no evidence was presented in support of this allegation, and it has therefore not been established.
With respect to the alleged mine clearing work done by FWS-109 and GK, or Goran “Gosa” Kukavica,¹²¹⁸ the Trial Chamber is satisfied that they were forced to work. On 18 September 1992, a KP Dom guard called out FWS-109 and Kukavica, together with twelve other detainees to be exchanged.¹²¹⁹ On arriving at the gate of the KP Dom compound, Todovic told FWS-109 that, instead of being exchanged, FWS- 109 and his friend, Kukavica, were to be used as drivers.¹²²⁰ In a statement to OTP investigators, FWS-109 stated that he did not see the Accused in the KP Dom on the day that they were taken to Kalinovik.¹²²¹ The two detainees were taken by troops to Kalinovik in an army truck and were then separated from the other twelve and taken to the police station. There they were kept in the prison and required to drive vehicles for the detection of landmines.¹²²² During the six months that he was kept at that police station, on five or six occasions military policemen had FWS-109 drive a truck ahead of columns of other vehicles as a mine detector.¹²²³ Kukavica, who was kept at the police station for longer than six months, performed this task more often as he was younger. On one occasion, he missed a landmine which was subsequently set off by the third vehicle in the convoy.¹²²⁴ Both of the detainees survived, but they worked under a lot of pressure, saying goodbye to each other as if they were never going to see each other again every time they had to leave for mine detection work.¹²²⁵ It is not clear from FWS-109’s testimony whether the allocation of this task was determined in Foca, or whether the detainees were given the assignment in Foca in response to a request from the Kalinovik authorities.¹²²⁶ The Accused denied having any knowledge about this work.¹²²⁷
The nature of the work done by FWS-109 and Kukavica is such that it is prohibited under both Articles 3 and 5 of the Statute, so that any supposed consent to it would be irrelevant. The Trial Chamber is satisfied that it was Todovic who told the detainees that they would be drivers. However, there is no evidence whatsoever that the Accused at the time or later knew or should have known that these two detainees, having been discharged from the KP Dom in order to be exchanged, ended up at the Kalinovik police station to be used for land mine clearing. In these circumstances, it is unnecessary to consider whether these instances of forced labour constituted enslavement, in the sense that there was an intentional exercise of the powers relating to the right of ownership over these two men.
It is alleged that, in the winter of 1992-1993 a group of detainees, including Mujo Hodzic,¹²²⁸ was taken to the front lines in Previla to cut wood and take it to the trenches, and that Hodzic had to lay telephone lines to connect the trenches.¹²²⁹ This allegation has not been established. A single witness, FWS-249, testified that a group of detainees were taken to Previla in the winter of 1992/1993 to work on the front lines.¹²³⁰ Upon their return, the other detainees could see that their hands were frozen and swollen.¹²³¹ FWS-249 could not recall whether they did something in addition to chopping firewood, and he could recall only the last name of one of these detainees as being Zametica.¹²³² Too little is known about this alleged incident, as to what were the real nature and conditions of work, to make a finding as to whether these detainees were forced to work. The Accused gave evidence that he never heard from anyone that Muslim detainees were used for trench digging at the front line.¹²³³
(f) Findings with respect to remaining allegations of forced labour
Certain alleged incidents of work about which evidence was given are not explicitly referred to in the Indictment. In the view of the Trial Chamber, the wording of par 5.41 of the Indictment limits the enslavement charges to the incidents of forced labour explicitly charged.¹²³⁴ Moreover, the Trial Chamber is not satisfied that the Defence was adequately put on notice during the Prosecution’s case that the Prosecution was extending its case beyond the specific allegations of forced labour with respect to the detainees listed in Schedule E to the Indictment.¹²³⁵ In any event, the evidence of these other incidents is unclear – both as to the nature of the incidents themselves and as to whether they took place during the time the Accused was warden.
Murid “Hrusco” Islambasic,¹²³⁶ Saban Karup,¹²³⁷ and Omer Bavcic ¹²³⁸ may have done mine clearing work, but it is unclear whether they did it during the Accused’s administration. The Accused himself testified that he has never heard from anyone that Muslim detainees were used for looking for mines by driving trucks in front of Serb troops.¹²³⁹ There is some evidence that Muhamed Ahmetkadic¹²⁴⁰ and Muhamed Alikadic¹²⁴¹ had to do mine clearing work, but they are not listed in Schedule E.
Some of the Muslim detainees – including FWS-198, FWS-73, FWS-66 and FWS-77 – chopped and piled firewood in the compound during the Accused’s administration.¹²⁴² However, there is an issue as to whether they were forced to do so. With respect to FWS-198, the Trial Chamber has already stated that it is not satisfied that he was forced to work.¹²⁴³ That conclusion also applies to this work. Although the piling and carrying of the firewood was hard work for FWS-66, he asked to do any kind of work so as not to be locked in his room,¹²⁴⁴ thus volunteering to work. FWS-73 also chopped wood in the compound, but it is unclear when he did this. FWS-77 is not listed in Schedule E.¹²⁴⁵
Some of the detainees – including FWS-66 and FWS-89 and Dzevad Sosevic – collected hay outside Foca.¹²⁴⁶ There is an issue as to whether any of these detainees were forced to do this work during the Accused’s administration. With respect to FWS-66 and Dzevad Sosevic, it is also unclear when they did this work and therefore whether it was during the Accused’s administration.
Some of the detainees – including FWS-198, FWS-71, FWS-73, Atif Jasarevic, Dzevad Sosevic and FWS-89 – cut grass and chopped wood outside Foca.¹²⁴⁷ Apart from the extra food that they received, they would get five to ten cigarettes as well.¹²⁴⁸ There is an issue as to whether they were forced to do this, or whether they did this work during the Accused’s administration. The Trial Chamber has already stated that it is not satisfied that FWS-198 was forced to work,¹²⁴⁹ but in any event there is no evidence as to when he did this work.¹²⁵⁰ It is unclear when FWS-71 felled wood in a forest,¹²⁵¹ or when FWS-73 cut grass and worked in the forest.¹²⁵² Except for FWS-249’s reference to Atif Jasarevic and FWS-77 having worked in the forest and cut grass, no more details about their work are known.¹²⁵³ Muhamed Lisica testified that Sosevic cut grass but gave no further information.¹²⁵⁴ FWS-89 saw the Accused whilst cutting grass and chopping wood near Kopilovi,¹²⁵⁵ but no further details about his work have been put before the Chamber.
There is an issue as to whether Rasim Taranin and FWS-182 were forced to unload flour, or whether FWS-182 did this during the Accused’s administration. Sometime in 1992, Rasim Taranin loaded and unloaded flour for about four days with 15 to 20 detainees in Ustikolina, Perucica and at the Livade warehouse.¹²⁵⁶ They were taken there by a guard or policeman from the KP Dom and were guarded by KP Dom policemen.¹²⁵⁷ When asked whether he had a choice in working, he simply said: “I didn’t even try anything. I didn’t dare say anything”.¹²⁵⁸ No further explanation was given. FWS-182 unloaded flour at Brod Na Drini, but just when this happened is not mentioned.¹²⁵⁹
There is an issue as to whether the following detainees were forced to work at the bakery or whether they worked there during the Accused’s administration. FWS-71 worked at the bakery, but there is no indication as to when he did this or what the work entailed.¹²⁶⁰ FWS -73 also unloaded flour for the bakery, falling over because of the heavy sacks. He considered it to be forced work, but he gave no indication as to when the work took place or whether he unloaded flour more than once.¹²⁶¹ FWS-89 unloaded flour at a bakery sometime in 1993,¹²⁶² but it is unclear as to whether he did this while the Accused was still at the KP Dom. Slobodan Solaja, a baker, appears to have asked for work platoons to help him unload flour on more than one occasion,¹²⁶³ one of which was on 23 June 1993, when, upon his request, Muslim detainees helped him to transport flour.¹²⁶⁴
Allegations were made that detainees worked on the apartment of Bozidar Krnojelac during the Accused’s administration, or were forced to make some kind of exercise machine for him. With respect to the work adapting the apartment for his disability,¹²⁶⁵ Bozidar Krnojelac, sometime in 1994, and before moving into the apartment, found a Muslim KP Dom detainee, Atif Jasarevic, two others whom he supposed were also detainees and a guard at his apartment.¹²⁶⁶ One or more of them or another KP Dom detainee, it is not known whom, may also have painted this apartment.¹²⁶⁷ One Prosecution witness testified that someone in the metal workshop may have made some kind of exercise machine for Bozidar Krnojelac.¹²⁶⁸ The Accused’s son, however, flatly denied any knowledge of such a machine,¹²⁶⁹ and his mother, Slavica Krnojelac, also denied that he ever had such a machine.¹²⁷⁰
The three remaining incidents raise issues as to whether the detainees were forced to work and whether the work was done during the Accused’s administration. Regarding the first incident, the evidence was that Lazar Divljan, the warehouse clerk from April until August 1992, had Muslim detainees, in addition to Serb convicts, assist him at the warehouse loading and unloading goods.¹²⁷¹ They were always volunteers, and he gave them some cigarettes.¹²⁷² With respect to the second incident, FWS-172 testified that some detainees worked at the fish farm in Jelec sometime in April or May 1992. No further evidence was given as to what this work entailed.¹²⁷³ Regarding the last incident, one witness, FWS-73, testified that he and three other detainees were forced to dig a grave for a mechanic who was a Muslim.¹²⁷⁴ There is no indication when this alleged incident took place.
(g) Remaining Schedule E detainees and forced labour
With respect to eleven of the sixty listed detainees, the Prosecution conceded that insufficient evidence was adduced in support of the original charge.¹²⁷⁵ The Trial Chamber accordingly is not satisfied that the following detainees were forced to work: Adil Balic, Sufin Becirbsic, Fehim Isanovic, Rasim or Asim Krkalic, Faruk Krecnic, Junuz Pecelj, Ifet Sahovic, Nusret Teletovic, Ramiz Salaka and Reko Taib.¹²⁷⁶
There are a number of detainees with respect to whom the only relevant evidence is that they were “made” to work, were in a working group or did odd jobs, without any further description of the nature of the work they did. It was for the Prosecution to make its case clear, and it did not do so. Accordingly, the Trial Chamber is not satisfied that they were forced to work. These detainees are Mustafa Ahmetkadic,¹²⁷⁷ Mustafa Barina,¹²⁷⁸ Dzafer Bojandzija,¹²⁷⁹ Rasim Dzubur,¹²⁸⁰ Suljo Pijadzer,¹²⁸¹ Ramiz Sundo,¹²⁸² Izet “Zibac” Causevic,¹²⁸³ Enver Cemo,¹²⁸⁴ and Safet Dudic.¹²⁸⁵
With respect to the remaining detainees listed in Schedule E, Asim Hadzic¹²⁸⁶ and Asim Gogalija,¹²⁸⁷ the Trial Chamber is not satisfied they were forced to work during the Accused’s administration because of a lack of sufficient evidence.

3. The responsibility of the Accused
On the basis of the findings made above, the Trial Chamber makes the following findings with respect to the Accused’s alleged responsibility under Articles 7(1 ) and 7(3) of the Statute.
It has not been established, within the meaning of Article 7(1) of the Statute, that the Accused committed enslavement. With respect to the specific basis for the enslavement charges in this case, it has not been established that he personally forced detainees to work.
With respect to common purpose liability under Article 7(1) of the Statute, the Prosecution has failed to prove the Accused’s membership of any joint criminal enterprise which may have existed to enslave the non-Serb detainees. Accordingly, the Trial Chamber is not satisfied that the Accused was responsible for having participated in any joint criminal enterprise to do so.
With respect to aiding and abetting liability under Article 7(1) of the Statute, the Trial Chamber is not satisfied that the Accused had any knowledge of the involuntary nature of the work done by Goran Kukavica and FWS-109, the only two detainees shown to have been forced to work. Accordingly, even assuming that that work did amount to enslavement, the Accused did not aid and abet that enslavement.
With respect to superior responsibility under Article 7(3) of the Statute, it has not been established to the satisfaction of the Trial Chamber that the Accused knew or had reason to know that Goran Kukavica and FWS-109 were forced to work. Even assuming that that work did amount to enslavement, the Trial Chamber is not satisfied that the Accused can be held responsible as a superior.
There is thus no basis for the charges of enslavement, and the Accused is accordingly acquitted on counts 16 and 18.

F. Persecution

1. The law
Persecution is charged pursuant to Article 5(h) of the Statute. The Trial Chamber is satisfied that the general requirements for crimes against humanity have been met, as set out above.¹²⁸⁸ The crime of persecution consists of an act or omission which:¹²⁸⁹

1. discriminates in fact and which denies or infringes upon a fundamental right laid down in international customary or treaty law (the actus reus); and

2. was carried out deliberately with the intention to discriminate on one of the listed grounds, specifically race, religion or politics (the mens rea). ¹²⁹⁰
Previous Tribunal jurisprudence, including the first judgment to address the issue, has required a discriminatory element as part of the actus reus,¹²⁹¹ that is, the act or omission must in fact have discriminatory consequences rather than merely be done with discriminatory intention. Discriminatory intent by itself is not sufficient. A different approach was recently taken in the Kvocka Trial Judgment, rejecting the need for discriminatory consequences.¹²⁹² No authority was cited for this approach, and this Trial Chamber does not find that judgment persuasive. In addition to the Tribunal’s own jurisprudence, logic argues in favour of a requirement that the act be discriminatory in fact. Without such a requirement, an accused could be convicted of persecution without anyone actually having been persecuted. In addition, the distinction between the crime of persecution and other crimes would be rendered virtually meaningless by depriving the crime of persecution of the qualities that distinguish it from other prohibited acts, such as murder and torture, which have as their object the protection of individuals irrespective of any group association.¹²⁹³ Although the Statute does not expressly require that the discrimination take place against a member of the targeted group, this is a necessary implication of the occurrence of an act or omission on a discriminatory basis.¹²⁹⁴
The act or omission constituting the crime of persecution may assume different forms.¹²⁹⁵ However, the principle of legality requires that the Prosecution must charge particular acts amounting to persecution rather than persecution in general.¹²⁹⁶ While a comprehensive list of such acts has never been established,¹²⁹⁷ it is clear that for the purposes of this Tribunal persecution may encompass acts which are listed in the Statute¹²⁹⁸ as well as acts which are not listed in the Statute.¹²⁹⁹ The persecutory act or omission may encompass physical and mental harm as well as infringements upon individual freedom.¹³⁰⁰ Although persecution usually refers to a series of acts, a single act may be sufficient.¹³⁰¹
Not every act or omission denying a fundamental human right is serious enough to constitute a crime against humanity.¹³⁰² While acts or omissions listed under other sub-paragraphs of Article 5 of the Statute are by definition serious enough, others (either listed under other articles of the Statute or not listed in the Statute at all) must meet an additional test. Such acts or omissions must reach the same level of gravity as the other crimes against humanity enumerated in Article 5 of the Statute. This test will only be met by gross or blatant denials of fundamental human rights.¹³⁰³ When invoking this test, acts should not be considered in isolation but rather should be examined in their context and withconsideration of their cumulative effect.¹³⁰⁴ Separately or combined, the acts must amount to persecution, though it is not required that each alleged underlying act be regarded as a violation of international law.¹³⁰⁵
The crime of persecution also derives its unique character from the requirement of a specific discriminatory intent.¹³⁰⁶ It is not sufficient for the accused to be aware that he is in fact acting in a way that is discriminatory; he must consciously intend to discriminate.¹³⁰⁷ While the intent to discriminate need not be the primary intent with respect to the act, it must be a significant one. There is no requirement under persecution that a discriminatory policy exist or that, in the event that such a policy is shown to have existed, the accused has taken part in the formulation of such discriminatory policy or practice by a governmental authority.¹³⁰⁸
The discriminatory intent must relate to the specific act charged as persecution rather than the attack in general, even though the latter may also in practice have a discriminatory aspect. This is clear from the definition of persecution which requires an act or omission that is in fact persecutory.¹³⁰⁹ There is no requirement, either under the crime of persecution or under the general requirements for crimes against humanity, that the attack in general be discriminatory.¹³¹⁰ In practice, the law has on occasion been applied by this Tribunal on the basis that an attack on discriminatory grounds is a sufficient basis from which to infer the necessary discriminatory intent for persecution.¹³¹¹ While such an approach would probably reach the correct conclusion for most acts occurring within the context of a discriminatory attack, there may be certain acts committed within the context of the attack either on discriminatory grounds not listed in the Statute, or for purely personal reasons.¹³¹² Therefore, this approach does not necessarily allow for an accurate inference regarding intent to be drawn with respect to all acts.¹³¹³

2. Findings
In the Indictment, the Prosecution has charged six different types of acts as persecution.¹³¹⁴ Several of these acts have also been charged separately in relation to the underlying offence, and have been dealt with above. In relation to those acts established to have taken place, the Trial Chamber must also consider the additional criteria necessary to render such acts persecutory. Those underlying acts not already examined in the context of separate charges (deportation and expulsion) will necessarily be addressed in greater detail before the Trial Chamber turns to consider whether the requisite criteria for the crime of persecution have been met.
(a) Imprisonment as persecution
The Prosecution charges “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” as persecution.¹³¹⁵ This act is separately charged as imprisonment, a crime against humanity pursuant to Article 5(e) of the Statute,¹³¹⁶ and as such is of sufficient gravity to constitute persecution. The Trial Chamber is satisfied that the imprisonment and confinement of non-Serbs at the KP Dom was carried out with the intent to discriminate on religious or political grounds. The Trial Chamber has already found that, during the time period relevant to this Indictment, non-Serbs were illegally imprisoned at the KP Dom and that this imprisonment was effected primarily or solely with the intent to discriminate against them because of their religious or political affiliations.¹³¹⁷ The discriminatory nature of the imprisonment itself is clear from the evidence given.¹³¹⁸ While 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.
(b) Inhumane conditions as persecution
The Prosecution charges “the establishment and perpetuation of inhumane conditions against Muslim and other non-Serb civilian detainees within the KP Dom detention facility” as persecution.¹³¹⁹ The establishment and perpetuation of inhumane conditions is separately charged as inhumane acts, a crime against humanity pursuant to Article 5(i) of the Statute¹³²⁰, and as cruel treatment, a violation of the law or customs of war pursuant to Article 3 of the Statute, and as such is of sufficient gravity to constitute persecution.¹³²¹
The Trial Chamber has already found that the non-Serb detainees were forced to endure brutal and inadequate living conditions while being detained at the KP Dom,¹³²² as a result of which numerous individuals have suffered lasting physical and psychological problems.¹³²³ Non-Serbs were locked in their rooms or in solitary confinement at all times except for meals and work duty, and kept in overcrowded rooms even though the prison had not reached its capacity. Because of the overcrowding, not everyone had a bed or even a mattress, and there were insufficient blankets. Hygienic conditions were poor. Access to baths or showers, with no hot water, was irregular at best. There were insufficient hygienic products and toiletries. The rooms in which the non- Serbs were held did not have sufficient heating during the harsh winter of 1992. Heaters were deliberately not placed in the rooms, windowpanes were left broken and clothes made from blankets to combat the cold were confiscated. Non-Serb detainees were fed starvation rations leading to severe weight loss and other health problems. They were not allowed to receive visits after April 1992 and therefore could not supplement their meagre food rations and hygienic supplies. Emergency health cases were not dealt with quickly enough. The camp conditions were psychologically exhausting for the non-Serbs. They were terrified by the sounds of torture and beatings over a period of months. Since they could not identify any criteria for the selection, many non-Serb detainees suffered a continuing fear that they would be taken away next for similar treatment.
The Trial Chamber is satisfied that, in contrast, the general conditions for Serb military detainees or convicts were much better.¹³²⁴ Serbs were not locked into their rooms and were free to move around within their building.¹³²⁵ They had access to the compound and were allowed to play sports.¹³²⁶ They were allowed to watch television and to listen to the radio.¹³²⁷ Serbs were mostly housed on the farm.¹³²⁸ They had access to the bathroom and to hot water, and received clean linen and towels.¹³²⁹ Their rooms had stoves to keep them warm during the cold winters.¹³³⁰ They were able to compensate for a shortage of hygienic products by receiving toiletries and clothes from visiting family members.¹³³¹ Serbs were allowed frequent family visits.¹³³²
Perhaps the most marked contrast between the treatment of Serbs and non-Serbs was with regard to food, both in quantity and in quality. While the Trial Chamber is satisfied that there were certain restrictions on the quantity and quality of food available during the conflict, it finds that the food available was not distributed equally among the detainees.¹³³³ Serbs received more food and of better quality than that given to non-Serbs. Serbs were allowed second helpings at meals and weight loss was negligible during the period of their detention.¹³³⁴ In addition, while the food was cooked in the same cauldron for all detainees and convicts, nutritious ingredients were added to enrich the meals of the Serbs who ate after the non-Serbs.¹³³⁵ Further, unlike the non-Serb detainees, they were permitted to supplement their diet with supplies brought by relatives.¹³³⁶
The Trial Chamber is satisfied that the establishment and perpetuation of inhumane conditions, constituting inhumane acts and cruel treatment of the non-Serb detainees, was carried out with the intent to discriminate against the non-Serbs detainees because of their religious or political affiliations. Accordingly, the Trial Chamber is satisfied that the crime of persecution has been established.
(c) Torture, inhumane acts and cruel treatment as persecution
The Prosecution charges “the repeated torture and beatings of Muslim and other non-Serb male civilian detainees at KP Dom” as persecution.¹³³⁷ These acts are separately charged as torture (a crime against humanity pursuant to Article 5(f) and a violation of the laws or customs of war pursuant to Article 3 of the Statute),¹³³⁸ inhumane acts (a crime against humanity pursuant to Article 5(i) of the Statute)¹³³⁹ and cruel treatment (a violation of the laws or customs of war pursuant to Article 3 of the Statute),¹³⁴⁰ all of which have been dealt with above.
The Trial Chamber has already found that a number of acts of torture and beatings did occur as charged under Articles 3 and 5 of the Statute.¹³⁴¹ Those acts amounting to torture or inhumane treatment under Article 5 of the Statute are as such of sufficient gravity to constitute persecution. The acts of torture and cruel treatment under Article 3 have also been found to amount to torture and inhumane acts under Article 5 and may therefore be considered to be of equal gravity. Those acts which took place but which the Chamber found above were not sufficiently serious to amount to cruel treatment, inhumane acts or torture, will be examined to determine whether they may nonetheless amount to persecution. For these acts to amount to persecution they must be of the same gravity as other crimes against humanity enumerated under Article 5 of the Statute.¹³⁴²
The jurisprudence of the Second World War cases establishes that acts which, on their own, are insufficiently serious to be characterised as crimes against humanity can nevertheless still reach the required threshold of gravity by virtue of the context in which those acts occurred. In the Second World War cases, that context was one in which discrimination against and the extermination of the Jewish people on grounds of race was the official State policy of the Nazi Government.¹³⁴³ An act which infringed upon an individuals fundamental rights which was not in and of itself inhumane was nevertheless considered to be inhumane in that context, and as such to be a crime against humanity
The Trial Chamber does not accept that the discriminatory imprisonment established is sufficient to characterise acts, which in and of themselves do not amount to inhumane acts or cruel treatment, as sufficiently serious as to amount to crimes against humanity. Such a context is not in the present case sufficient to establish the required degree of gravity implied in Article 5 of the Statute. Further, and related to this issue, the Trial Chamber does not accept the Prosecution’s argument that the confinement of men on the discriminatory basis that they were non-Serb is sufficient grounds for establishing that all of those acts established as crimes against humanity, or of equal gravity to, were perpetrated on the ground that the victims were non-Serbs.¹³⁴⁴ For reasons already set out,¹³⁴⁵ each of these acts must be considered on its merits to determine whether it amounts to persecution.
The Trial Chamber has already found that detainees were beaten on their way to or from the canteen, by guards of the KP Dom and soldiers from outside the camp (par 5.7).¹³⁴⁶ The Trial Chamber is satisfied that Dr Amir Berberkic and Dzevad S Lojo were assaulted by soldiers on religious grounds after the two detainees had left the canteen (par 5.12).¹³⁴⁷ When the soldiers approached them, they shouted “Balijas”, the derogatory term for Muslims carrying religious connotations.¹³⁴⁸ The Trial Chamber has already determined, however, that the beating of Dr Amir Berberkic and Dzevad S Lojo did not reach the required level of severity to establish the underlying offences of cruel treatment or inhumane acts.¹³⁴⁹ The Trial Chamber is not satisfied that the particular context in which these beatings occurred is sufficient to increase the severity of the acts so as to become crimes against humanity. Accordingly, the Trial Chamber finds that these acts are of insufficient severity to support a finding of persecution.
The Trial Chamber is not satisfied that other incidents concerned with the canteen (which do not amount to inhumane acts and cruel treatment)¹³⁵⁰ have been established as having been carried out on discriminatory grounds. In October 1992, detainees lined up for lunch were beaten by five armed soldiers from Trebinje over a period of half an hour (par 5.8 and 5.13).¹³⁵¹ A detainee nicknamed “Pace” was slapped and kicked because he carried his lunch tray in one hand (par 5.10).¹³⁵² FWS-137 was beaten for unknown reasons by soldiers in the compound when returning from breakfast (par 5.11).¹³⁵³ There is no safe basis in the evidence which establishes that these acts were discriminatory in nature or done with discriminatory intent.¹³⁵⁴ There is therefore no need to consider whether any of these acts were of sufficient gravity as to amount to persecution.
The Trial Chamber is not satisfied that the incident concerning Edhem Gradisic has been established as being carried out on discriminatory grounds¹³⁵⁵ Edhem Gradisic, a disabled detainee who suffered from epilepsy, was beaten and taken to an isolation cell after complaining about the small portions of food (par 5.9).¹³⁵⁶ There is nothing in the evidence to establish that this act was carried out with a relevant discriminatory intent.
A number of arbitrary beatings were also established, as set out above ( par 5.14).¹³⁵⁷ The Chamber is satisfied that, in one of these incidents, the beating was conducted on political grounds and amounted to persecution. D‘emo Balic was severely beaten and locked in solitary confinement, which resulted in him becoming deaf in one ear (par 5.15).¹³⁵⁸ Balic told another detainee after the beating that the principal offender said to him “You are the one who had promised to Alija eight kilos worth of Serbian eyes”.¹³⁵⁹ With respect to the other arbitrary beatings, it has not been established that these took place on any discriminatory grounds, and the Trial Chamber is not satisfied that they amounted to persecution. On different occasions, several detainees were beaten inside, in front of, or after they had been taken from their rooms or isolation cell, including FWS-71 (par 5.16),¹³⁶⁰ Muharem Causevic (A 2),¹³⁶¹ and Ahmet Duric (A 7).¹³⁶² Kemo Kajgana (A 10) and Fikret Kovacevic (A 12) were taken out of an isolation cell and beaten as well as forced to beat each other.¹³⁶³ None of these acts has been established to have been discriminatory in fact.
With respect to the beatings of Smajo Bacvic (A 1), Halim Corovic ( A 4) and FWS-111 (A 11), incidents found earlier not to be of sufficient gravity to constitute inhumane acts or cruel treatment,¹³⁶⁴ there is no evidence to establish that these acts were discriminatory in nature or done with discriminatory intent and, accordingly, there is no need to consider whether any of these acts were of sufficient gravity to amount to persecution.
The Trial Chamber has already found that certain acts of torture or beatings were perpetrated as punishment for infringements of orders or the KP Dom rules.¹³⁶⁵ Although the Trial Chamber is satisfied that these rules were discriminatory in nature, being applied to the non-Serb detainees only, the Trial Chamber is not satisfied that these acts amount to persecution with respect to the beatings. These discriminatory rules related to the living conditions only, and the discriminatory intent has not been established with respect to the acts of beatings. FWS-54 was beaten as punishment for giving a detainee an extra slice of bread contrary to orders (par 5.18 ).¹³⁶⁶ FWS-71, FWS-76, FWS-08 and D‘evad Cosovic were beaten and placed in isolation cells as punishment for stealing food (par 5.20).¹³⁶⁷ Following the failed escape attempt by Ekrem Zekovic, his work colleagues, including FWS-73, FWS-110, FWS-144 and FWS-210, were beaten as punishment (par 5.21).¹³⁶⁸ Similarly, the Trial Chamber found above that Avdo Muratovic, Fahrudin Malkic and Sacic were slapped as punishment for passing messages to one another contrary to orders, although this did not amount to torture, inhumane acts or cruel treatment (par 5.19).¹³⁶⁹ The Trial Chamber is not satisfied in respect of any of these acts of beating that the victims were discriminated against on grounds of race, religion or politics.
Other acts of torture or beatings took place during interrogations, often with the purpose of obtaining information or extracting confessions. The Trial Chamber has already found that FWS-03, Halim Dedovic and Hajro Sabanovic were tortured by military policeman at the KP Dom in order to obtain information or confessions ( par 5.23). In the case of FWS-03, targeted because of his SDA affiliations,¹³⁷⁰ the Trial Chamber is satisfied that he was tortured on the basis of politics and that this amounts to persecution. There is no evidence, however, that Halim Dedovic (also B 13) or Hajro Sabanovic were SDA supporters. The Trial Chamber is not satisfied that it is sufficient of itself that a detainee was merely asked about something political in order to establish persecution on political grounds.¹³⁷¹ Therefore the Chamber is not satisfied that either of these men were tortured on any listed discriminatory ground.¹³⁷²
The Trial Chamber has already found that Nurko Nisic, Zulfo Veiz and Salem Bico were all severely beaten by guards of the KP Dom or policemen in June or July 1992 (par 5.27).¹³⁷³ The Trial Chamber is not satisfied that any of these three detainees were tortured on any of the listed grounds. All three men appear to have been policemen prior to the conflict,¹³⁷⁴ and two of them (Nisic and Veiz) were questioned about weapons or military activities.¹³⁷⁵ There is some evidence that former colleagues selected them for beatings,¹³⁷⁶ and that Nisic was beaten during questioning about what happened to a Serb soldier named or nicknamed “Bota”.¹³⁷⁷ There is no satisfactory evidence with respect to the reasons why Salem Bico (also B 5) was selected to be beaten.
On an unknown date in the summer of 1992, Salko Mand‘o (aka Kelta) was mistaken for another detainee and tortured by guards of the KP Dom (par 5.28, B 36).¹³⁷⁸ The Trial Chamber is not satisfied that this act of torture amounts to persecution. The intended victim was Salko’s brother Fuad,¹³⁷⁹ an SDA member who had protected SDA leaders in Donje Polje.¹³⁸⁰ There is no evidence that Salko Mand‘o was an SDA supporter and, therefore, no safe basis which establishes that this act was in fact discriminatory against Salko Mand ‘o on the ground of politics.
Vahida D‘emal, Enes Uzunovic, Aziz Sahinovic and Elvedin Cedic were beaten and kept in solitary confinement on at least two occasions (par 5.29).¹³⁸¹ There is no evidence that the treatment of these detainees was carried out on any discriminatory ground, and therefore it does not amount to persecution. Enes Uzunovic was president of the Foca youth (a youth activist body) before the war,¹³⁸² and then joined the SDA,¹³⁸³ but there is no evidence that he was beaten on these grounds. There is some evidence that Aziz Sahinovic was tortured for information about DM 36,000 which had gone missing from the bank where he worked.¹³⁸⁴ One of the Defence witnesses asserted that Sahinovic was a Muslim soldier.¹³⁸⁵ D‘emal Vahida was a policeman.¹³⁸⁶ There is nothing in the evidence which establishes any of the requisite discriminatory grounds.
The Trial Chamber found that Dzemo Balic was repeatedly and severely beaten and mistreated while being interrogated about SDA membership and Muslims who might have weapons (B 4).¹³⁸⁷ The Chamber is not satisfied that these beatings did in fact discriminate on the ground of politics or any other listed ground. There is some evidence that Balic was forced to sign a statement that he had established some kind of “units” and that his brother was the principal of the military school in Vranica, and that this is why he was beaten.¹³⁸⁸ The evidence is not sufficiently clear, however, to allow the Chamber to establish whether Dzemo Balic was in fact an SDA supporter.
The Trial Chamber has already found that Mehmed Sofradzija was kept in an isolation cell for seven days and subjected to severe beatings (B 52).¹³⁸⁹ It has not been established that these beatings amounted to persecution. While there is evidence that he may have been selected for this treatment because his brother was in the military,¹³⁹⁰ no evidence was put before the Chamber which persuades it that Mehmed Sofradzija was beaten on any of the listed discriminatory grounds.
On arrival at the KP Dom in January 1992, FWS-159 was locked in an isolation cell for about three months, during which time he was brutally beaten by Serb soldiers and KP Dom guards on at least ten occasions (B 57).¹³⁹¹ The Trial Chamber is not satisfied that these beatings amounted to persecution. During the beatings, FWS-159 was interrogated about military activity. The Trial Chamber concludes that, as FWS-159 was a soldier, it was reasonably possible that, as he should have some knowledge about military activity, it was on this ground that he was beaten, and not on one of the discriminatory grounds.
No evidence was put before the court with regard to the reasons behind the beatings of Emir Frasto (B 21). With respect to Ramo D‘endusic (B 20 ), there was evidence that he worked prior to the conflict in the Secretariat for National Defence.¹³⁹² Following an interrogation, he told one witness that he thought that he probably would not survive, as the interrogators knew quite a few things about him.¹³⁹³ The Trial Chamber concludes that it was a reasonable possibility that he was beaten as a result of his knowledge about military activities and, in those circumstances, it is not satisfied beyond reasonable doubt that he was discriminated against on the basis of any of the listed grounds. There is therefore no need to consider whether any of these acts were of sufficient gravity as to amount to persecution.
The Trial Chamber has already found that several detainees were taken out of their rooms to the administration building where they were beaten by soldiers and guards of the KP Dom, after which they did not return to their rooms.¹³⁹⁴ The Trial Chamber is not satisfied that in any of these cases the beatings took place on one of the listed discriminatory grounds. With respect to the beatings carried out in this manner, no evidence was adduced to show the reasons for which Kemo Dzelilovic (B 19),¹³⁹⁵ Nail Hodzic (B 28), Halim Konjo (B 33), Husein Rikalo (B 46 ), Mithat and Zaim Rikalo (B 48), or Munib Veiz (B 59) were selected for this treatment. Adnan Granov (B 22) was accused by the interrogators of having been in possession of a radio transmitter,¹³⁹⁶ as well as having travelled abroad before the war in order to obtain weapons, allegedly in Germany.¹³⁹⁷ Mustafa Kuloglija (B 34) told a fellow detainee that he had a fight with a Serb before the war and suspected that revenge was the reason he was beaten so much.¹³⁹⁸ The Trial Chamber concludes that it was a reasonable possibility that Granov was beaten as punishment for having allegedly been involved in military activities, while Kuloglija was beaten for revenge. In those circumstances, it is not satisfied beyond reasonable doubt that the necessary discriminatory intent was present.
The Trial Chamber has already found that Emir Mand‘o was beaten after being mistaken for his brother Fuad, an SDA supporter, like the incident involving Salko Mand‘o (B 37).¹³⁹⁹ There is no evidence that Emir Mand‘o was also an SDA supporter, and therefore no safe basis which establishes that Emir Mand‘o was in fact discriminated against on political grounds.
The Chamber is not satisfied that the beatings of any of the following individuals were carried out on any of the listed discriminatory grounds. Remzija Delic ( B 14), Ned‘ad Delic (B 15) and Hasan D‘ano (B 18) were all beaten by former schoolmates or neighbours.¹⁴⁰⁰ Juso D‘amalija (B 17) was beaten because his son was a policeman in Foca before the war.¹⁴⁰¹ Ibrahim Kafed ‘ic (B 31) told a witness that a relative of his had joined the Bosnian army and that this was the reason they beat him so badly.¹⁴⁰² There is no evidence as to why Latif Hasanbegovic (B 25), Aziz Haskovic ( B 26) and Halim Seljanci (B 51) (an Albanian originally from Kosovo )¹⁴⁰³ were taken out and beaten. Similarly, there is no evidence as to why Kemo Isanovic (B 30) was beaten.
In summary, the Trial Chamber is satisfied that the following acts of torture, inhumane acts or cruel treatment were carried out on discriminatory grounds: Indictment par 5.15 and 5.23 (FWS-03 only).
(d) Killing as persecution
The Prosecution charges “numerous killings of Muslim and other non-Serb male civilian detainees at KP Dom” as persecution.¹⁴⁰⁴ These killings are separately charged as murder (a crime against humanity pursuant to Article 5(a) and a violation of the laws or customs of war pursuant to Article 3 of the Statute).¹⁴⁰⁵ Those acts amounting to murder under Article 5 of the Statute are as such of sufficient gravity as to constitute persecution. The acts of murder under Article 3 have also been found to amount to murder under Article 5 and may therefore be considered to be of equal gravity. The Trial Chamber has already found that twenty-six non-Serbs listed in Schedule C of the Indictment were in fact murdered at the KP Dom.¹⁴⁰⁶
For the reasons set out above in the previous section,¹⁴⁰⁷ the Trial Chamber is not satisfied that Hamid “Salem” Bico (C 2), Abdurahman Cankusic (C 3), Elvedin “Enko” Cedic (C 5), Kemal D‘elilovic (C 7), Ramo D‘endusic (C 8), Adil Granov (C 9),Halim Konjo (C 13), Mustafa Kuloglija (C 15), Fuad Mand‘o (C 16), Nurko Nisic (C 19), Husein Rikalo (C 21), Mithat Rikalo (C 22), Zaim Rikalo (C 23), Enes Uzunovic (C 26), D‘emal Vahida (C 27), Munib Veiz (C 28) or Zulfo Veiz (C 29) were selected to be killed on any of the listed discriminatory grounds.¹⁴⁰⁸
One of the detainees listed in Schedule C who was killed appears to have had political ties to the SDA. Adil Krajcin (C 14), a commercial director at the Miljevina mine,¹⁴⁰⁹ was identified by one witness as “some kind of party activist”.¹⁴¹⁰ The Trial Chamber is not satisfied that this is sufficient basis on which to conclude that the killing was in fact discriminatory on political grounds.
Others appear to have been singled out because of direct or indirect connections to the military conflict. The Trial Chamber is not satisfied in any of these cases that the victims were subject to discrimination on any of the listed grounds. Mate Ivancic (C 11), a Croat nurse,¹⁴¹¹ told one witness that he was suspected of having been in Croatia and having killed Serbs there.¹⁴¹² Krunoslav Marinovic (C 17), a Croat television repair man,¹⁴¹³ was also a correspondent for a Croat paper and may reasonably have been killed on this account.¹⁴¹⁴ Hamid Ramovic (C 20) had a brother Abid who was a policeman and was the first victim of the conflict.¹⁴¹⁵ Kemal Tulek ( C 25), a former policeman in the KP Dom,¹⁴¹⁶ was accused of having a weapon,¹⁴¹⁷ and may have been singled out because his brother was with the Bosnian army.¹⁴¹⁸ Insufficient evidence was adduced in order for the Trial Chamber to establish why Alija Altoka (C 1), Refik Cankusic (C 4), Esad Kiselica (C 12 ) or Seval Soro (C 24) were singled out.
Accordingly, the Trial Chamber is not satisfied that the Prosecution has established that any of the killings were carried out on discriminatory grounds.
(e) Forced labour as persecution
The Prosecution charges “the prolonged and frequent forced labour of Muslim and other non-Serb male civilian detainees at KP Dom” as persecution.¹⁴¹⁹ Although forced labour is not separately charged as such, it forms the basis of the charges of enslavement and slavery and has already been considered by the Trial Chamber in that context. In two instances, the Trial Chamber was satisfied that there was forced labour (the mine clearing by FWS-109 and Goran Kukavica).¹⁴²⁰ However, no criminal responsibility for that forced labour was attributed to the Accused. With respect to the other alleged incidents, no instances of forced labour were established. As a result, the Trial Chamber is not satisfied that there are any instances of forced labour which could support a charge of persecution.
(f) Deportation and expulsion as persecution
The Prosecution charges “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” as persecution.¹⁴²¹ As these acts are not separately charged elsewhere in the Indictment, the Trial Chamber must now consider them.
Deportation is clearly prohibited under international humanitarian law.¹⁴²² While some instruments prohibit deportation as a war crime,¹⁴²³ it is also prohibited specifically as a crime against humanity,¹⁴²⁴ and it is enumerated as such under the Statute.¹⁴²⁵ Deportation was originally prohibited as a crime against humanity in order to extend the jurisdiction of the Second World War tribunals to encompass acts committed against persons sharing the same nationality as the principal offenders.¹⁴²⁶ The content of the underlying offence, however, does not differ whether perpetrated as a war crime or as a crime against humanity.¹⁴²⁷
Deportation may be defined as the forced displacement of persons by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law.¹⁴²⁸ Deportation requires the displacement of persons across a national border, to be distinguished from forcible transfer which may take place within national boundaries.¹⁴²⁹ This Trial Chamber does not accept as persuasive the only previous decision of this Tribunal which states to the contrary, and it notes that this decision did not follow fully litigated trial proceedings.¹⁴³⁰ The Trial Chamber thus rejects the Prosecution submission that the mere fact that the detainees were taken out of the KP Dom, wherever else they may have been transferred to, constituted deportation.¹⁴³¹
Deportation is illegal only where it is forced.¹⁴³² “Forced” is not to be interpreted in a restrictive manner, such as being limited to physical force. It may include the “threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or persons or another person, or by taking advantage of a coercive environment”.¹⁴³³ The essential element is that the displacement be involuntary in nature,¹⁴³⁴ where the relevant persons had no real choice.¹⁴³⁵ Forced displacement is only illegal when it occurs without grounds permitted by international law.¹⁴³⁶
The Prosecution has further alleged the act of expulsion as persecution. No effort has been made to define the act of expulsion or to differentiate it from the act of deportation. While 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.¹⁴³⁷ Similarly, definitions advanced in the context of international human rights law require displacement across national boundaries.¹⁴³⁸ The Trial Chamber considers it to be well established that forcible displacements of people within national boundaries are covered by the concept of forcible transfer.¹⁴³⁹ The Prosecution has not pleaded forcible transfers at all in the Indictment and accordingly, the Trial Chamber cannot consider that offence as founding a charge of persecution. For the purposes of this case, the Trial Chamber accepts that, insofar as it requires the forcible displacement of persons across a national border, expulsion may be treated in the same way as deportation. As the act of expulsion is not enumerated in the Statute, however, it would need (if proved) to meet the test of sufficient gravity in order to constitute persecution.
The Trial Chamber is satisfied that the majority of incidents alleged by the Prosecution to constitute deportation and expulsion did take place.¹⁴⁴⁰ These incidents may be divided into three types: transfer of detainees to other prison camps, so-called exchanges and so-called work duty.
The Trial Chamber is satisfied that groups of detainees were transferred from the KP Dom to other camps in Bosnia and Herzegovina, including the camps at Kula,¹⁴⁴¹ Kalinovik¹⁴⁴² and Rudo.¹⁴⁴³ However, as the detainees were not displaced across a national border, the Trial Chamber is not satisfied that the detainees were deported or expelled.
The Trial Chamber is satisfied that detainees were taken out of the KP Dom on exchanges during the period relevant to the Indictment.¹⁴⁴⁴ 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,¹⁴⁴⁵ according to a list provided by the prison administration.¹⁴⁴⁶ 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.¹⁴⁴⁷ While some of these exchanges were bona-fide, allowing detainees to reach territory controlled by Bosnian Muslims, many detainees taken out for exchange simply disappeared.¹⁴⁴⁸ 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,¹⁴⁴⁹ through other former detainees years later,¹⁴⁵⁰ or through attempts to get information from the ICRC about relatives.¹⁴⁵¹
In many of the incidents alleged by the Prosecution, the detainees taken out of the KP Dom were never heard from again. With respect to these incidents, the Chamber is not able to determine that the detainees were in fact displaced across a national border, and is therefore not satisfied that they were in fact deported or expelled. These include the so-called exchanges of 15 or 19 August 1992 (15- 20 men),¹⁴⁵² summer 1992,¹⁴⁵³ 22 August 1992 (8 men),¹⁴⁵⁴ 25 August 1992 (around 18-25 men),¹⁴⁵⁵ 31 August – 2 September 1992 (around 71 men),¹⁴⁵⁶ 10 September 1992 (between 10-40 men),¹⁴⁵⁷ 12 September 1992 (50 men),¹⁴⁵⁸ sometime between 11 and 16 December 1992 (7 men),¹⁴⁵⁹ February or March 1993 (Dr Aziz Torlak),¹⁴⁶⁰ and 21 March 1993 (Sucrija Softic).¹⁴⁶¹
The Chamber is not satisfied that the incident referred to by the Prosecution concerning 34 men from Jelec¹⁴⁶² took place at the KP Dom, and therefore does not consider the allegation further.¹⁴⁶³
On at least one occasion, detainees were taken across a national border. A group of approximately 55 men were taken for exchange in Montenegro around 30 August 1992, but the bus on which they were being transported was intercepted in Niksic, Montenegro, by Pero Elez, a Bosnian-Serb soldier, who sent the group back to the KP Dom. The group was then divided in two with approximately 20 younger men being taken away, possibly to Gorazde, and never seen again. The remaining group of 35 men, of which two witnesses in this case were part,¹⁴⁶⁴ was taken to be exchanged in Ro‘aj in Montenegro.¹⁴⁶⁵
The Chamber is satisfied that this group of 35 men was displaced across a national border to Montenegro. However, there is general evidence that 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.¹⁴⁶⁶ The Trial Chamber is not satisfied that the displacement of these individuals from Foca necessarily involved in the choice they made was involuntary. In addition, there is no direct evidence showing that the displacement was committed on one of the listed discriminatory grounds.¹⁴⁶⁷
The Trial Chamber is satisfied that, around 17 or 18 September 1992, between 35-60¹⁴⁶⁸ detainees were taken out of the KP Dom in two groups, having been told that they were going to pick plums.¹⁴⁶⁹ It has not been established beyond reasonable doubt that these detainees were displaced across a national border, and the Trial Chamber is therefore not satisfied that their removal from the KP Dom amounted to deportation or expulsion. Detainees were first asked to volunteer for plum-picking duty,¹⁴⁷⁰ but they were in fact eventually selected by KP Dom guards according to a list.¹⁴⁷¹ Those selected for the job were told by the guards not to take their belongings.¹⁴⁷² Detainees who were taken away for plum picking did not return to the KP Dom and were never seen again.¹⁴⁷³ The bodies of two of those detainees, Murat Crneta¹⁴⁷⁴ and Halid Konjo,¹⁴⁷⁵ were later discovered close to the Gorazde frontline near Previla in Bosnia Herzegovina in a mass grave.¹⁴⁷⁶
Similarly, the Trial Chamber is not satisfied that detainees escorted by Pero Elez out of the KP Dom in the summer of 1992, possibly to work in the Miljevina mine, were deported or expelled. They were never seen again,¹⁴⁷⁷ and as a result it has not been established that they were displaced across a national border.

3. The responsibility of the Accused
The Trial Chamber has considered the offences of imprisonment, inhumane conditions, torture, inhumane acts, cruel treatment, murder, forced labour, deportation and expulsion as acts of persecution. It has established that the imprisonment of the non-Serb detainees in the KP Dom, the inhumane conditions in which they were kept, the beating of Dzemo Balic and the torture of FWS-03 were committed with discriminatory intent and amount to persecution.¹⁴⁷⁸ It is with respect to these instances only that the Trial Chamber now considers the issue of the Accused’s responsibility. That responsibility is alleged to arise on different bases in relation to each of the underlying crimes established.
(a) Joint Criminal Enterprise
The Prosecution alleges that the Accused incurred criminal responsibility under Article 7(1) as a participant in a joint criminal enterprise with guards and soldiers to persecute the Muslim and other male non-Serb civilian detainees. To attach criminal responsibility to the Accused for the joint criminal enterprise of persecution, the Prosecution must prove that there was an agreement between himself and the other participants to persecute the Muslim and other non-Serb civilian male detainees by way of the underlying crimes found to have been committed, and that the principal offenders and the Accused shared the intent required for each of the underlying crimes and the intent to discriminate in their commission. The Prosecution alleges that the Accused was affiliated with the SDS and supported Serb nationalistic policies, which (it is alleged) provides direct evidence of his conscious intention to discriminate. The Trial Chamber is not satisfied that the evidence is sufficient to establish these allegations. ¹⁴⁷⁹ Moreover, the Trial Chamber has already determined that the Accused did not share the intent to commit any of the underlying crimes charged as persecution pursuant to any joint criminal enterprise.¹⁴⁸⁰ Accordingly, the crime of persecution cannot be established on the basis of any of these underlying crimes as part of a joint criminal enterprise in which the Accused was involved.
(b) Aiding and Abetting
The Prosecution alleges that the Accused also incurred individual criminal responsibility under Article 7(1) of the Statute by aiding and abetting the persecution of the non-Serb detainees, by his participation in the commission of the underlying crimes. To find the Accused guilty of aiding and abetting the persecution of the non-Serb detainees, the Prosecution must establish that the Accused had knowledge that the principal offenders intended to commit the underlying crimes and that by their acts they intended to discriminate against the non-Serb detainees, and that, with that knowledge, he made a substantial contribution to the commission of the discriminatory acts by the principal offenders.
Imprisonment. The Trial Chamber has already found that the Accused voluntarily accepted the position of warden at the KP Dom in full awareness that Muslim civilians were being illegally detained at the KP Dom because of their ethnicity, and it determined that the Accused incurred criminal responsibility for aiding and abetting that illegal imprisonment pursuant to Article 7(1).¹⁴⁸¹ The Trial Chamber is also satisfied that, with respect to the crime of imprisonment, it was obvious to the Accused, as it was to anyone who was at the KP Dom, that the principal offenders in imprisoning the Muslim and other non-Serb men
intended to discriminate against them on religious and political grounds. The Trial Chamber is also satisfied that the Accused knew that by his acts or omissions he was substantially contributing to the commission of the offence of imprisonment on discriminatory grounds.¹⁴⁸² Accordingly, the Trial Chamber is satisfied that the Accused incurred criminal responsibility as an aider and abettor to the crime of persecution under Article 7(1) of the Statute with respect to the underlying crime of imprisonment.
Living conditions constituting inhumane acts and cruel treatment. The Trial Chamber has already found that the Accused had knowledge of the conditions under which the non-Serb detainees were being held and of the effects these conditions were having on the physical and psychological health of the non-Serb detainees, and it determined that the Accused incurred criminal responsibility for aiding and abetting the principal offenders in the continued maintenance of these living conditions, (constituting inhumane acts and cruel treatment) pursuant to Article 7(1).¹⁴⁸³ The Trial Chamber is also satisfied that it was obvious to the Accused, as it would have been to any one 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. The Trial Chamber is also satisfied that the Accused knew that by his acts or omissions he was making a substantial contribution to the commission of these conditions (constituting inhumane acts and cruel treatment) on discriminatory grounds. Accordingly, the Trial Chamber is satisfied that the Accused incurred criminal responsibility as an aider and abettor to the crime of persecution under Article 7(1) of the Statute with respect to the underlying crime of inhumane acts and cruel treatment.
Beatings. With respect to the beating of Dzemo Balic, the Trial Chamber has already found that the Accused was aware of the commission of beatings in general,¹⁴⁸⁴ and it determined that the Accused incurred responsibility as an aider and abettor of those beatings pursuant to Article 7(1), although no conviction was entered under that head of responsibility, the Trial Chamber finding his responsibility as a superior was the more appropriate head under which to record a conviction.¹⁴⁸⁵ However, the Trial Chamber is not satisfied that the Prosecution has established that the Accused also had knowledge that the beating of Dzemo Balic was committed with discriminatory intent. To establish the Accused’s responsibility for aiding and abetting the commission of this act as an act of persecution, the Prosecution must establish the Accused’s knowledge of not only the underlying act but also of the additional fact that that act was committed with a conscious intention to discriminate. The Trial Chamber is not satisfied that the Prosecution has established that the Accused knew that the beating of non-Serb detainees was carried out with discriminatory intent, and thus the Accused cannot be found responsible for aiding and abetting the persecution of the non-Serb detainees by his acts and omissions with respect to the beating of Dzemo Balic.
Torture. With respect to the torture of FWS-03, the Trial Chamber has already found that the Accused did not have knowledge of the state of mind of the principal offenders of this offence, and it determined that the Accused did not incur criminal responsibility for the torture of detainees at the KP Dom.¹⁴⁸⁶ Accordingly, the aiding and abetting of the crime of persecution on the basis of the offence of torture of FWS-03 cannot be established. However, although the Accused did not have knowledge of the torture of FWS-03, the Trial Chamber was satisfied he did have knowledge of the beatings of the detainees, and the Accused was found responsible for the torture of FWS-03 as inhumane acts and cruel treatment. The Trial Chamber is not satisfied, however, that the Prosecution has established that the Accused knew that the treatment of FWS-03 was committed with discriminatory intent. The aiding and abetting of the crime of persecution cannot therefore be established upon the basis of this act.
(c) Superior Responsibility
The Trial Chamber must also consider whether the Accused incurred superior responsibility pursuant to Article 7(3) for the persecution of the non-Serb detainees with respect to the underlying offences found to have been committed with discriminatory intent. To establish the Accused’s responsibility as a superior, the Prosecution must demonstrate that the Accused knew of the commission of the underlying offence, that he knew that that offence was being committed on discriminatory grounds, or had information in his possession sufficient to put him on notice as to the commission of the underlying offence and its commission on discriminatory grounds, and that he failed to prevent or punish his subordinates for the commission of the underlying offence on discriminatory grounds.
Imprisonment. The Trial Chamber has already determined that the Accused held the position of warden of the KP Dom and exercised supervisory responsibility over all subordinate personnel and detainees at the KP Dom.¹⁴⁸⁷ However, the Trial Chamber also found that the Accused played no role in actually securing the detention of non-Serb detainees at the KP Dom, and that the most which could have been done by the Accused as a superior was to report the illegal detention of the non-Serb detainees to the very persons who had ordered it.¹⁴⁸⁸ Accordingly, the Trial Chamber determined that the Accused did not incur superior responsibility for the imprisonment of the non-Serb detainees.¹⁴⁸⁹ Without the establishment of the Accused’s responsibility as a superior for the underlying offence of imprisonment, there is no basis for a finding that the Accused incurred superior responsibility for the act of imprisonment as an act of persecution.¹⁴⁹⁰
Inhumane living conditions constituting inhumane acts and cruel treatment. The Trial Chamber has already found that the Accused knew that his subordinates were subjecting the non-Serb detainees to living conditions which constituted inhumane acts and cruel treatment, and it determined that the Accused incurred superior responsibility for these underlying offences,¹⁴⁹¹ for his omission to take any action to prevent his subordinates from maintaining these living conditions, and his failure to punish his subordinates for the implementation of these living conditions.¹⁴⁹² The Trial Chamber is also satisfied that it was obvious to the Accused, as it would have been to any one at the KP Dom, that the disparity between the treatment of the non-Serb and Serb detainees was deliberate and was carried out with the intention of the principal offenders to discriminate against the non-Serb detainees on religious and political grounds. Accordingly, the Trial Chamber is satisfied that the Accused incurred criminal responsibility as a superior for the maintenance of the living conditions constituting inhumane acts and cruel treatment as acts of persecution pursuant to Article 7(3) of the Statute.
The Trial Chamber has already determined that the Accused incurred individual responsibly for aiding and abetting the maintenance of the living conditions as acts of persecution pursuant to Article 7(1) of the Statute.¹⁴⁹³ In the exercise of its discretion, the Trial Chamber considers it more appropriate to enter a conviction under Article 7(1) as stated earlier.¹⁴⁹⁴ However, the Trial Chamber will take into account the Accused’s position as a superior as a factor aggravating his criminal responsibility under Article 7(1).
Beatings. With respect to the beating of Dzemo Balic, the Trial Chamber has already determined that the Accused incurred superior responsibility pursuant to Article 7(3) for this beating as inhumane acts and cruel treatment, as he knew that beatings were being committed and he failed to take any action to prevent or punish their occurrence.¹⁴⁹⁵ The Trial Chamber is satisfied that, had the Accused acted upon the information within his possession with respect to the beatings, any investigation would have made clear to him with respect to Dzemo Balic the discriminatory intent of the principal offender. Accordingly, the Trial Chamber is satisfied that the Accused also incurred superior responsibility with respect to the beating of Dzemo Balic constituting inhumane acts and cruel treatment found to have been committed with persecutory intent.
Torture. The Trial Chamber has already found that the Accused did not have knowledge of the tortures committed at the KP Dom.¹⁴⁹⁶ No superior responsibility can therefore attach to the accused for the torture of FWS-03 found to have been committed with persecutory intent. With respect to the beating of FWS-03 as inhumane acts and cruel treatment, the Trial Chamber is satisfied that, if the Accused had acted upon the information in his possession with respect to the beatings, any investigation would have made clear to him with respect to FWS-03 the discriminatory intent of the principal offender. Accordingly, the Trial Chamber is satisfied that the Accused incurred superior responsibility for the beating of FWS-03 as an act of persecution.